author: Mr. Justice Wilkin

text:
    Ella M. Williams et al. v. Isaac D. Fletcher.

      Filed at Ottawa June 15, 1889.

    1. Debtor and creditors—contract giving preferences—effect of subsequent transaction—whether abrogating such contract. Where a debtor and his two principal creditors enter into a tripartite contract, in which it is expressly agreed that one of the creditors, for all moneys theretofore loaned or thereafter advanced to the debtor, shall have right of priority of payment over the other, if entered into without fraud, and understandingly, such contract will be binding and conclusive on the parties, and the first named creditor will have the right to demand full payment of his advances, as against the other creditor. And if the debtor should sell out his business and effects, and take stock in an incorporated company in payment, the creditor so preferred by the terms of the original contract mil have the right to take and hold the certificates of stock as collateral security for his debt, as against the other creditor.
    2. Under such contract nothing would prevent B, to whom the advances had been and were to be made, if acting in good faith and with business prudence, from associating with himself in the conduct of the business, others, either as partners or as joint stockholders in a corporation, with or without the consent of the lender, so that such subsequent arrangement should in nowise impair the right of preference already existing in the latter.
    3. Construction on contracts—intention of the parties as expressed. While it is true that a contract means what the parties understood it to mean, still they will be presumed to have meant what their language imports. It is not what one of the parties may have intended, but what is shown by the contract to have been the intention of all the parties thereto.
    4. Pub chases—without notice—how far protected. As a general rule, applicable to property other than negotiable securities, the vendor can convey no greater right than he has. But when the true owner holds him out or allows him to appear as owner of or as having full power of disposition over the property, and innocent third persons are thus led into dealing with such apparent owner, they will be protected.
    5. The rights of innocent third persons in such eases do not depend upon the actual title or authority of the party with whom they deal, but are derived from the act of the real owner, which precludes him from disputing, as against them, the existence of the title or powers, which, through negligence or mistaken confidence, he caused or allowed to appear to be vested in the party making the conveyance.
    6. Partnership—whether the relation exists—a contract construed. A entered into a contract with B, by which the former agreed to, and did, advance $20,000 to B, to be invested for five years in the business of the latter, who was to credit A with the earnings of such sum, in the proportion it bore to the whole amount invested in the business, and it was agreed that an inventory should be taken of 'B’s stock and assets, to fix such proportion, and that A might draw against his prospective earnings a sum not exceeding ten per cent of his investment, payable quarterly, and that the rate of interest which the capital should draw from expense should not exceed seven per cent, and the compensation to B for services should not exceed $6000 per annum: Held, that this did not constitute them partners; that the business belonged to B, who had the sole right to manage and control it, and that A’s right was against B for the'profits, and finally for repayment of the $20,000.

      Appeal from the Appellate Court for the First District;— heard in that court on appeal from the Superior Court of Cook county; the Hon. Gwynn Garnett, Judge, presiding.
    On the 8th day of October, 1883, one Horace P. Fletcher and Eldred C. Williams entered into the following agreement:
    “This agreement, made on this 18th day of October, 1883, by and between Horace P. Fletcher, of the city and county of San Francisco, State of California, and Eldred C. Williams, of the city of Boston, county of Suffolk, State of Massachusetts:
    “■Witnesseth, that whereas, the said Williams is possessed of the sum of $20,000, United States lawful money, which he is anxious to invest in commercial business; and whereas, he is inspired with confidence in the business ability and methods of the said Fletcher: Said Williams has, on this day and date, delivered to said Fletcher the said sum of $20,000, in trust, for the investment of the said sum to the best advantage, and to allow the same to remain in the hands of said Fletcher for the term of five years, from the 1st day of January, 1884. The said Fletcher, in accepting the trust, agrees to invest the said $20,000 in his business in San Francisco, called Ichi Ban, with his own capital, and to use it all to the best advantage for the purpose of earning profit on the investment, for the advantage of said Williams the same as if for himself. The said Fletcher agrees to credit to the account of said Williams the earnings of the said $20,000, in proportion to the whole earnings as the said $20,000 is in proportion to the whole amount of money invested in the business. The proportion of the capital of said Fletcher shall be determined by an inventory of the stock and other assets of the business, which it is agreed shall be taken at some time during the month of January, February or March, 1884.
    “It is also agreed that the said Williams shall be entitled to draw against his prospective earnings the sum not exceeding ten per cent per annum of his investment, in quarterly installments, payable on the 1st of April, July, October and January of each year, allowing the balance of the earnings, if there be any, to accumulate in the business for its benefit.
    “It is agreed that the rate of interest which capital shall •«draw from expense shall not exceed seven per cent per annum, and the compensation'for services of the said Fletcher shall mot exceed the sum of $6000 per annum.
    Eldred C. Williams,
    Horace P. Fletcher.”
    On the 12th of the following June, they, with appellee, made the following tripartite agreement:
    “Whereas, Horace Fletcher is doing business in San Francisco, California, and also at Chicago, Illinois, in articles of Japanese manufacture, and others of a kindred nature; and whereas, one Eldred C. Williams, of Boston, Massachusetts, has advanced to said Horace Fletcher certain capital for use in said business, for which use the said Williams receives certain of the profits thereof; and whereas, Isaac D. Fletcher, of ■the city of New York, has advanced and loaned to said Horace Fletcher certain moneys and credits, and has agreed with said Horace Fletcher to loan him still other and further money and credit in said business; and whereas, it is the design and intention of each of the parties hereto that the said Isaac D. Fletcher, as between the parties, shall be entitled to and have priority of payment of and for any and all said sums of money or credits so loaned, or which, shall hereafter be loaned, by him to said Horace Fletcher, over said Eldred C. Williams, for payment of sum or sums advanced by him, or which shall hereafter be advanced by him, said Williams, to said Horace Fletcher:
    “Now, this agreement, made' this twelfth day of June, 1884, between Horace Fletcher, of San Francisco, California, party •of the first part, Eldred C. Williams, of Boston, Massachusetts, jparty of the second part, and Isaac D. Fletcher, of the city of New York, party of the third part, in consideration of one dollar, lawful money, each to the other in hand paid at or before the ensealing and delivery of these presents, the receipt whereof is hereby severally acknowledged:

      “Witnesseth, that the said parties of the first and second part.s hereto, for themselves, their executors, administrators or assigns, covenant or agree to and with the said party of the-third part hereto, his executors, administrators or assigns, that the said party of the third part, for any and all sums of money, credits or things in action which now have been or hereafter may or shall be by him, the said party of the third part, loaned or advanced to the said party of the first part during-his (said party of the first part’s) continuance in the business aforesaid, rightfully claim and have, as between the parties, hereto, priority of payment thereof over the said party of the-second part, for any sums of money, credit or things in action by him, the said party of the second part, loaned or advanced, or hereafter to be loaned or advanced, to the said party of the first part; the intent of this instrument being to render any claim of the party of the second part, for all moneys or credits advanced or to be hereafter advanced as aforesaid, subordinate- and subject to the payments of all money or credits, or either of them, loaned or advanced by the said party of the third part to the party of the first part, as aforesaid.
    “In witness whereof, the parties hereto have hereunto set their hands and affixed their seals, the day and year first above-written. Horace Fletcher,
    Eldred 0. Williams,
    Isaac D. Fletcher.”
    On the 18th day of the following October, said Williams, gave said Horace Fletcher the following letter:
    “Chicago, October 18, 1884.

    “Horace Fletcher—You have my full permission, so far as I am concerned, to sell the business and property of Ichi Ban and Nee Ban to the Japanese Development Company, and receive in payment stock in the Japanese Development Company. In case of a payment of a bonus in stock over the appraised value of the property of Ichi Ban and Nee Ban to the Japanese Development Company, I agree to waive all claim to any participation in said bonus of stock, provided that the interest which I have placed in your hands is not assessed for a pro rata percentage to pay said bonus.
    Eldred C. Williams.”
    May 6, 1885, Horace received from the Japanese Development Company a certificate for eight hundred and seventy-four shares of its capital stock, of the value of $100 each, and indorsed the same in blank and delivered it to appellee. In the latter part of the year 1886 the Japanese Development Company suspended, and, by an order of the Superior Court of Cook county, all its business, property and effects went into the hands of a receiver. The affairs of the corporation being settled and all its debts paid, the sum of $4428.13 remained to be applied on the said eight hundred and seventy-four shares of stock held by appellee. Appellants having succeeded to all the rights of said Williams in and to said shares of stock, if any he had, filed an interpleader in said Superior Court, claiming to own two hundred of the eight hundred and seventy-four shares of stock, upon which they were entitled to a distributive part of said $4428.13, amounting to $1013.30. About the same time appellee also filed his interpleader, claiming the whole $4428.13, denying that appellants owned any part of the said shares of stock. The decision of the Superior Court sustaining the claim of appellee was affirmed by the Appellate Court for the First District. Further facts appear in the opinion.
    Messrs. Beckham & Brown, for the appellants.
    'Messrs. Flower, Bemy & Holstein, and Mr. H. Musgrave,, for the appellee.
   Mr. Justice Wilkin

delivered the opinion of the Court:

A reversal of the judgment of the Appellate Court is urged here on the single ground that the finding and decree of the •Superior Court were contrary to the law and the evidence. Appellants insist that by the payment of the $20,000 by Wil-' liams to Horace Fletcher, under the agreement of October 8, 1883, and the subsequent transactions between them, two hundred of the shares of stock issued to Horace by the Japanese Development Company, and by him indorsed to appellee, became and were the property of Williams, and that Horace had no right or authority to indorse them to appellee. Appellee, by his interpleader, claims, even as between Horace .and Williams, some of the stock was owned by the latter; but he also contends, that, waiving that question, no claim to such ownership in Williams can be successfully maintained against him, he being an innocent holder.

At the date of the first contract above mentioned, Horace Fletcher was proprietor and manager of a Japanese store in San Francisco, California, called “Ichi Ban.” Subsequently, but before the tripartite contract was made, he had established a branch of that business in Chicago, which he called “Nee Ban.” All the property and business of these stores was transferred to the said Japanese Development Company, a joint stock corporation organized in the month of September, 1884, for which Horace Fletcher received the said shares of stock. At that time the indebtedness from Horace to appellee ■amounted to about $80,000, of which the development company assumed all but $40,000. For this last amount Horace -executed and delivered to appellee his promissory note, and indorsed the said certificate of stock as collateral security. Appellee testified that the $40,000 for which said note was given •went to pay, in part, for the subscription to the capital stock ■of the corporation made by Horace, and that he consented ■thereto only upon the express agreement that the stock should be assigned and delivered to him as security on the note, and he is wholly uncontradicted as to that fact. The indebtedness from Horace to appellee is not questioned, nor is it denied that much more than the whole amount here involved remains due and unpaid thereon.

We have examined the evidence, and find no fact or circumstance proved from which it can be inferred that appellee took the certificate of stock with notice that any part of the shares therein specified belonged to Williams. The evidence of appellee is direct and positive to the contrary. The record is also barren of evidence of fraud, even on the part of Horace, much less of appellee, in procuring the execution of the tripartite agreement. On the contrary, it clearly appears that Williams executed it after the fullest opportunity to examine and ascertain its contents and learn its legal effect, and that he deliberately signed it after consulting an attorney, neither of the Fletchers being present or in any way influencing him in the matter. He does not pretend that he was misled, or mistaken, even, as to any fact affecting his rights under that ■contract, except that he did not know that Horace owed appellee anything at the time he placed his $20,000 in his hands; but as to that fact he does not claim that he was deceived by anything done or said by Horace, for the purpose of practicing a fraud upon him. He made no inquiry, took no steps whatever to ascertain how much money appellee had previously loaned Horace, or when the loans were made, nor as to what future advances were to be made, before signing and delivering the tripartite agreement. Having executed it freely and voluntarily, he must submit to its terms, unless he has shown that he has, in some way, been discharged from its obligations. That agreement admits of no construction. It treats Horace P. Fletcher as the debtor of both appellee and Williams; states that appellee has agreed to make further advances and loans, not to Williams and Horace, but to Horace individually, and contemplates that Williams may also do so; and as to all such debts then existing or to be contracted, it is in the most positive terms agreed that appellee shall be first paid.

Had the business of the Bans been closed directly, instead of being transferred to the Japanese Development Company, appellee’s right to payment in full, as against Williams, would certainly be conceded under the terms of that agreement. Did the transfer operate to abrogate that contract? Appellants insist that it did, because, they say, the contract was “applicable only to the business owned by Williams and Horace Fletcher.” But that contract did not recognize Williams as part owner of any business, and, as a matter of law, he was not. The only the vry upon which it can be claimed that he was part owner with Horace in the Bans, is, that by the terms of the contract of October 8,1883, they became partners, and the contract admits of no such construction. 1 Bindley on Partnership, 23; Lycoming Ins. Co. v. Barringer, 73 Ill. 230; Smith v. Knight, 71 id. 148; Adams v. Funk, 53 id. 219; Niehoff et al. v. Dudley, 40 id. 406.

The business belonged to Horace Fletcher, and he had the sole right to manage and control it. Williams’ right was against him for the profits, and, finally, for repayment of the $20,000 at the expiration of five years. There is nothing in the contract of October 8, 1883, which would prevent Horace Fletcher, acting in good faith and with business prudence, from associating with himself others, either as partners or joint stockholders in a corporation, with or without the consent of Williams. He did, however, consent that the business should be transferred to the development company. True, he swears that he consented thereto only upon the express agreement of Horace that the two hundred shares of stock should be issued in his name and delivered to him personally, the effect of which would have been to end the trust relation created hy the former contract, and allow him to become a joint stockholder in the corporation. Such contract, if made, would be of no binding force upon appellee, unless he agreed to it also, of which there is no pretense of proof. Horace Fletcher denies that there was any such agreement, and we think the subsequent conduct of Williams is so-inconsistent with such < an understanding, that if the determination of that fact was necessary to a decision of the case, we would be compelled to find it against appellants. It clearly appears that after the organization of the corporation, and after he knew the shares of stock had been issued to Horace, Williams continued to receive quarterly payments from Horace up to January, 1886, for which he gave a receipt as late as January 8,1885, stating! that the sums received “were to be deducted from the profits, and in case of no profits the amount to be considered in settlement of the business.” No attempt is made by Williams to explain this conduct on his part, and we think it is explainable only upon the supposition that he continued to rely upon ' the contract relations existing between himself and Horace, and at no time understood that he was a stockholder in the Japanese Development Company.

We hold that the tripartite agreement continued in full force after the transfer of the stores- to the company, and must control the rights of the parties to this controversy.

As to the point made, that that contract did not cover any indebtedness from Horace to appellee existing at the time of the investment by Williams, it need only be said that no such qualification or limitation is found in the contract. It is true, as contended by counsel for appellants, that “a contract means what the parties contracting understood it to mean when they made it;” but it is also true that the parties will be presumed to have meant what their language imports. It is not what one of the parties may have intended, but what is shown by the contract to have been the intention of all parties thereto. Here the language of the agreement is plain and unambiguous, and its legal effect can not be escaped by appellants because Williams may not have understood it. It is also true that the evidence does not prove that any part of such prior indebtedness entered into the consideration of the note for which the stock in question is held as collateral security.

On the ground that Horace Fletcher was the owner of the whole eight hundred and seventy-four shares, the judgment of the Appellate Court must be affirmed; and even if it were held that as between appellants and Horace two hundred of the shares were owned by Williams, still, appellee being an innocent holder, the judgment was right on the doctrine concisely stated by Rapallo, J., in McNeil v. Tenth Nat. Bank, 46 N. Y. 325, thus: “It must be conceded, that, as a general rule applicable to property other than negotiable securities, the vendor or pledgor can convey no greater right or title than he has. But this is a truism predicable of a simple transfer from one party to another, where no other element intervenes. It does not interfere with the well-established principle, that where the true owner holds out another, or allows him to appear, as the owner of or as having full power of disposition over the property, and innocent third parties are thus led into dealing with such apparent owner, they will be protected. Their rights in such cases do not depend upon the actual title or authority of the party with whom they deal directly, but are derived from the act of the real owner, which precludes him from disputing, as against them, the existence of the title of power, which, through negligence or mistaken confidence, he caused or allowed to appear to be vested in the party making the conveyance.”

Judgment affirmed.


source: Caselaw Access Project

author: Mr. Justice Craig

license: Public Domain

text:
    Robert Holloway v. Jacob Johnson.

      Filed at Ottawa June 15, 1889.

    1. Practice—directing what the verdict shall be—whether allowable. On the trial of a cause the court instructed the jury, that if they believed, from the evidence, that the plaintiff, by agreement, took certain stallions of defendant to stand during the spring season, for the compensation of one-half of what should be realized from them, and that plaintiff stood said h orses for the defendant, and that there was realized out of said transaction a certain amount of money, then the plaintiff was entitled to recover one-half of said amount shown from the proof, “and on this question the jury shall find for the plaintiff.” The defendant claimed that plaintiff was to receive only one-third of the sum realized, and there was evidence to that effect: Held, that the latter clause of the instruction was erroneous, as it left the jury no discretion but to find this issue for the plaintiff.
    2. Same—improper remarks of counsel, in argument, to the jury—no ruling in the trial court. In the closing argument to the jury, plaintiff’s counsel made remarks, prejudicial to the defendant, not authorized by any evidence. Defendant’s counsel objected to the remarks, and the court promptly said, “Counsel will confine his remarks to what is in the record,” but made no ruling sustaining what had been said: Held, that the record presented no question involving the improper remarks, the court having made no ruling as to their propriety.
    3. Instruction—when great accuracy required. Where the evidence is conflicting, and the case is one which, upon the proof, may be decided either way, it is very important that the instructions of the court should be accurate, so that the jury may not be misled, but left free to arrive at a correct conclusion, from the evidence.
    Appeal from the Appellate Court for the Second District;— heard in that court on appeal from the Circuit Court of Knox county; the Hon. John J. Glenn, Judge, presiding.
    Messrs. Kirkpatrick & Alexander, for the appellant.
    Messrs. Williams, Lawrence & Bancroft, for the appellee.
   Mr. Justice Craig

delivered the opinion of the Court:

This was an action of assumpsit, brought by Jacob Johnson, against Bobert Holloway, to recover money claimed to be due plaintiff for the earnings of certain horses in the stud kept by him during the season of 1883 and 1884; also, for labor in caring for and feeding the horses each year after the close of the season. On a trial before a jury the plaintiff recovered, and the judgment of the circuit court was affirmed in the Appellate Court. To reverse the judgment of the Appellate Court this appeal was taken.

Several alleged errors are relied upon to reverse the judgment, but it will not be necessary to consider all of them.

' At the request of the plaintiff, among others, the court gave the following instruction:

“The jury are instructed, that if they believe, from all the evidence in this case, carefully weighed and considered, that the plaintiff, by arrangement with Holloway, took three stallions, first in the spring of 1883, and after again in the spring of 1884, of the age and description shown by the evidence, to stand during the spring seasons of said years, for the compensation of one-half of what should be realized on said horses, the plaintiff being at the expense of caring for, stabling, feed, and all necessary expense, and that plaintiff stood said horses in Knox county for said defendant, and that there was realized out of said transaction a certain amount of money, then the plaintiff would be entitled to recover one-half of said amount shown from the proof, less all sums received by plaintiff; and on this question the jury shall find for the plaintiff, Johnson.”

Whether the plaintiff was to receive one-half or one-third of the earnings of the horses, and whether he was to receive any pay for keeping the horses after the season expired, were questions upon which the evidence was conflicting and contradictory. The plaintiff testified that he was to receive one-half, and to be paid for keeping the horses after the season; while the defendant was equally positive, in his evidence, that plaintiff was to receive only one-third, and to he paid nothing for keeping after the season. Where the evidence is conflicting .and contradictory, and the case is one which may, on the facts, he decided either way, it is of great importance that the instructions of the court should be accurate, so that the jury may not be misled, but be left free to arrive at a correct conclusion from the evidence. It will be observed that the instruction informs the jury that under a certain state of facts the plaintiff would be entitled to recover one-half the amount realized on the horses, and upon, this question the jury shall And for the plaintiff. Under the language of the instruction the jury had no discretion whatever, but on one of the main controverted issues in the case they are commanded to find for the plaintiff. The instruction does not, as is often done, fell the jury, if they find, from the evidence, certain facts, then they will find for the plaintiff; but, on the other hand, on one of the controverted issues they are commanded to find for the plaintiff. The last clause of the instruction was doubtless an oversight, but its language could not do otherwise than mislead the jury.

If this was a case where the right of the plaintiff to recover was clear and undoubted, we might refuse to reverse, on the ground that the instruction, although erroneous, did no harm, as the verdict could not have been other than it was. But such is not the case. As said before, the case is one where the evidence is conflicting, and in order that justice may be done the instructions ought to have been accurate, and not calculated to mislead the jury on any branch of the case.

In the closing argument certain remarks were made by counsel for plaintiff, prejudicial to the defendant, which were not authorized by any evidence in the case, and it is insisted that this is ground for reversing the judgment. After counsel had made the remarks complained of, the attorney for the defendant objected to what had been said, and the court very; promptly said, “Counsel will coniine his remarks to what is-in the record.” No ruling was made by the court upholding- or sustaining what had been said. Indeed, no decision of the-court was made to which exception can he taken. There is,, therefore, no question presented by the record involving improper remarks in the argument.

We think the court erred in giving the third instruction for the plaintiff, and for that error the judgments of the Appellate and circuit courts will be reversed, and the cause remanded to-the circuit court.

Judgment reversed.


author: Mr. Chief Justice Shope

text:
    The People, for use of State Board of Health, v. Blue Mountain Joe.

      Filed at Springfield June 15, 1889.

    1. Pbaotioe of medicine—regulation thereof—constitutionality of act of 1887. The powers vested, by the statute in the State Board oí Health do not fall within any limitation of the power of the legislature by either the State or Federal constitution. They would seem to fall cl early within the police power of the State.
    2. Same—purpose of the act—and what embraced therein. The statute on this subject was passed to protect the health and promote the welfare of society, and protect it from imposition and fraud. Its purpose-was to prohibit and punish fraud, deception, charlatanry and quackery in the practice of medicine, and prevent empiricism, and to bring the practice under such control, that, as far as possible, the ignorant and unscientific practitioner may be excluded.
    3. Within the regulation of the practice of medicine necessarily falls the right to determine, or to provide means for determining, who may lawfully exercise the right to practice under the act, and to establish such rules as shall determine what shall not be regarded as legitimate-practice of the profession.
    4. The right to prescribe medicines for the cure of disease, and to-administer them, falls clearly within the practice of medicine; and the regulation of the sale of drugs and nostrums by itinerant venders as. clearly falls within the purpose of the act, as expressed in its title.

      5. Evidence—competency ■—in prosecution under act to regulate the practice of medicine. On the trial of an action of debt against one under section 11 of the act to regulate the practice of medicine, the plaintiff offered to show that the defendant had men traveling with him to make sales of his medicine; that he professed at his meetings that he could cure rheumatism, kidney disease, etc., by the use of his medicines, an'd that he sold his medicines for the cure of such diseases. On objection, the court refused to receive the evidence, and instructed the jury to find for the defendant: Held, that the proffered testimony was clearly competent, as tending to prove the defendant’s guilt.
    6. Appeal—in civil suit for a penalty—appeal by the People. A suit brought under section 11 of the act of June 16, 1887, entitled “An act to regulate the practice of medicine in the State of Illinois,” is a civil proceeding for the recovery of a penalty, and therefore an appeal lies in favor of the People from a judgment in favor of the defendant.
    7. Same—validity of statute involved. If the validity of a statute under which an action of debt is prosecuted for a penalty therein given, is involved, an appeal will lie from the final judgment of the trial court directly to this court.
    8. On the trial of an unlicensed itinerant vender of nostrums, medicines, etc., in a prosecution under section 11 of the act of 1887, to regulate the practice of medicine, the trial court refused to permit any proof tending to sustain the action, on the ground that the section was unconstitutional and void: Held, that the validity of the statute was clearly involved, and therefore an appeal would lie from the trial court directly to this court.
    9. Title op an act—constitutional requirement. If the subject of an act be expressed in the title in general terms, it will be sufficient, under the provisions of section 13, article 4, of the constitution, that “no act hereafter passed shall embrace more than one subject, and that shall be expressed in the title.”
    10. The general purpose of the constitution in that regard is accomplished when the title is .comprehensive enough to reasonably include as falling within that general subject, and as subordinate branches thereof, the several objects the statute assumes to effect.
    11. Same—act of 1887 to regulate the practice of medicine. The terms employed in the title of the act of 1887, “to regulate the practice of medicine in the State of Illinois,” are sufficiently broad and comprehensive to include within its scope the entire range of practice of the medical profession, and section 11 thereof is a valid law.
    Appeal from the County Court of Clark county; the Hon. Henry Gasaway, Judge, presiding.

      Mr. Newton Tibbs-, for the appellant:
    The court erred in refusing to admit the proposed evidence tending to show a violation of the act.
    The court instructed the jury orally, on his own motion, to find for the defendant. This was in violation of the statute. 2 Starr & Curtis’ Stat. p. 1814, sec. 53; McEwen v. Morey, 60 Ill. 32; Railroad Co. v. Hammer, 85 id. 526; Bloomer v. Sherrill, 11 id. 483; Green v. Lewis, 13 id. 642.
    The court may inform the jury what facts will sustain the issue,- hut may not determine whether such facts have been established. The court is for the law, and the jury for the fact. Hubner v. Feige, 90 Ill. 208; Caveny v. Weiller, id. 158; Crowley v. Crowley, 80 id. 469.
    The opinion of the court below, holding the act to regulate the practice of medicine in this State unconstitutional, was in direct conflict with the decision of the Supreme Court of this State in the ease of Williams v. People, 121 Ill. 84.
    The act to regulate the practice of medicine in this State is not in conflict with section 13, article 4, of the constitution, as embracing more than one subject. The general purpose of this provision is accomplished when the title is comprehensive enough to reasonably include as falling within that general subject, and as subordinate branches thereof, the several objects which the statute assumes to effect. It is sufficient that the act passed is fairly covered by its title. The constitution does not require that all the legal effect of an act shall be expressly stated in the title. Such a thing would be utterly impracticable. Where the act itself is clearly embraced in the title, as in this case, all legal consequences necessarily flowing from it, will, for the purposes of this constitutional requirement, be regarded as embraced within the title also.
    That part of the act which provides, that “if any itinerant vender of any drug, nostrum, ointment, or appliance of any kind intended for the treatment of disease or injury, or who shall, by writing or printing, or any other method, profess to cure or treat disease or deformity by any drug, nostrum, ointment or manipulation,” etc., is certainly germane to the title of the act to regulate the practice of medicine. Potwin v. Johnson, 108 Ill. 70; Timm v. Harrison, 109 id. 593; Mix v. Railroad Co. 116 id. 508; Blake v. People, 109 id. 508.
    Messrs. Golden & Hamill, for the appellee, entered a motion to dismiss the appeal.
   Mr. Chief Justice Shope

delivered the opinion of the Court:

This was an action of debt, brought in the name of the People of the State of Illinois, for the use of the State Board of Health, against “Blue Mountain Joe,” before a justice of the peace, in Clark county. An appeal was taken from the judgment of the justice of the peace to the county court of that county, where a trial was had by jury, and resulted in a verdict and judgment for the defendant. The plaintiff below prosecutes this appeal from that judgment.

A motion was entered in this court to dismiss the appeal in this cause upon the following grounds: First, from the record it does not appear that a crime, a franchise, a freehold, or the validity of a statute, is involved, or that this court has jurisdiction ; second, the appeal in this cause was improperly and improvidently taken to the Supreme Court; third, this proceeding is in its nature criminal, being punishable by fine, and comes within the spirit of the law forbidding appeals or writs of error by the People, or the twice putting defendant in jeopardy.

The suit is brought under the 11th section of the act of June 16, 1887, in force July 1, 1887, entitled “An act to regulate the practice of medicine in the State of Illinois.” The acfi. provides for the recovery of the penalty therein imposed, in an action of debt, before any court of competent jurisdiction. It is a civil proceeding for the recovery of a penalty, and no further attention need be given the third ground upon which the motion is predicated.

By the 88th section of the Practice act, as amended in 1879, appeals from and writs of error to the circuit courts and county courts, in all criminal cases above the grade of misdemeanors, and in cases in which a franchise or freehold, or the validity of a statute, or the construction of the constitution is involved, and in all cases relating to revenue, or in which the State is interested as a party or otherwise, shall be taken directly to and prosecuted from the Supreme Court. It follows, therefore, if the validity of the statute under which this suit is brought is involved, the appeal was correctly prosecuted to this court. Some consideration of the record will be necessary to a determination of this question.

The facts are, substantially, that the defendant, with a band of music, and some Indians, either real or pretended, was in Marshall, in Clark county, some time in April, 1888, and was engaged in selling medicine, being then located in the Opera Hall. He left there and went to Terre Haute, Indiana, was gone about a month and returned to Marshall. Upon his return he located in a grove near the town, where he put up tents, consisting, as it was shown, of a medicine tent, a business tent, a cooking tent, and some seven or eight single tents used as sleeping apartments, and also a show tent, fenced with barbed wire, in front of which he erected seats and a stage; that he paraded the streets twice a day with his band of music and Indians, and gave free shows at night, consisting of music, singing, jokes, wire-walking and other performances ; that after he got the crowd interested he would advertise his medicines,—tell what they were good for and what diseases they would cure. Distribution would then be made of the medicine to his aids, and they would carry it through the crowd for sale. They sold it in the audience anywhere, and to anybody who would buy.

Plaintiff offered to show that the defendant had men traveling with him to make sales of the medicine, and also to show that the defendant professed, at his meetings, that by the use of his various medicines he could cure rheumatism, kidney disease and other diseases, and also that he sold these medicines for the cure of such diseases,—to the proof of each of which matters counsel for defendant objected, and the court sustained the objection. It was shown that the defendant circulated advertisements of the remedies he was selling, one of which, in pamphlet form, was produced and shown to the witnesses, and identified, and is preserved in the record. Counsel for the plaintiff offered to read such pamphlet to the jury, having first shown it to be one of the advertisements of his remedies distributed by the defendant. Upon objection by the defendant, the court held the same incompetent. Indeed, the court refused to permit any proof to be made, upon the ground, as stated by the court, as is shown by the record, that the 11th section of the law was unconstitutional and void. The court instructed the jury to return a verdict for the defendant, which was done.

It was clearly competent, if the section of the statute under ■consideration is valid, to show the defendant was an itinerant vender of drugs, nostrums, ointments, or appliances of any kind “intended for the treatment of disease or injury.” The ■question of whether he was such itinerant vender was a question of fact, to be determined by the jury in view of all the facts and circumstances proved. That the facts offered to be proved tended to establish the guilt of the defendant of the acts prohibited by this section of the statute, is unquestioned. It is apparent that the only theory upon which the action of the court can be sustained is, that the legislative •enactment under consideration was void. The court so expressly held. It is equally clear, therefore, that the validity •of this section of the statute is involved. We said in Chaplain v. Highway Comrs. 126 Ill. 264, that “where it can be seen that the constitutional question raised is one which will he fairly regarded as debatable, we think the question of the-validity of a statute becomes involved in the case, within the-meaning of the statutes regulating jurisdiction of appeals. ”"

From what has been said, it is apparent that to determine this case we must determine the validity of this statute. lithe statute is void, the action of the court was right. If it' is a valid law, such action was as clearly erroneous. It remains-only to determine the question of the validity of the statute.

The section under consideration provides that “any itinerant vender of any drug, nostrum, ointment, or appliance ofany kind intended for the treatment of disease or injury, * * * shall pay a license, to be collected by the State Board of Health, in the name of the People of the State of Illinois, for the use of said board,” and makes provision for-issuing a license by said board. The act then provides, that “any such itinerant vender who shall vend or sell any such drug, nostrum, ointment or appliance without having a license so to do, shall, if found guilty, be fined in any sum not less than $100 and not exceeding $200 for each offense, to be recovered in an action of debt,” etc. It is not suggested that the power here sought to be exercised falls within any limitation upon the power of the legislature by either the State or Federal constitution. It would seem to fall clearly within the-police power of the State. (Williams v. The People, 121 Ill. 84.) It is, however, insisted that the subject matter of this section is not embraced in the title of the act, and is therefore void, under the provisions of section 13 of article 4 of the State constitution, the first clause of which is as follows :■ “No act hereafter passed shall embrace more than one subject,, and that shall be expressed in the title.”

It has been uniformly held by this court, that if the subject of the act be expressed in the title in general terms, it will be sufficient, under the provision of the constitution quoted. (Johnson v. The People, 83 Ill. 431; Potwin v. Johnson, 108 id. 70; Timm v. Harrison, 109 id. 593; Mix v. Illinois Central Railroad Co. 116 id. 508; Blake v. The People, 109 id. 508.) “The general purpose of this provision of the constitution is-accomplished when the title is comprehensive enough to reasonably include as falling within that general subject, and as-subordinate branches thereof, the several objects which the statute assumes to effect.” Potwin v. Johnson, 108 Ill. 70, See, also, The People v. Hazelwood, 116 Ill. 319; Johnson v. The People, 83 id. 431; The People ex rel. v. Wright, 70 id, 388; Guild v. City of Chicago, 82 id. 473. If, therefore, the-subject matter of the section under consideration is germane to the general subject expressed in the title, or forms a subordinate branch or part of such general subject, it must be held as embraced within the title of the act.

The title of the act is, “An act to regulate the practice of medicine in the State of Illinois.” To practice is to exercise a calling or profession. It is the application of science or knowledge to the wants of men in the recurring incidents of life, as, in the practice of law or of medicine. (Webster.) The practice of medicine includes the application of the knowledge-of medicine, of disease and of the laws of health. The terms employed in the title of the act are sufficiently broad and comprehensive to include within its scope the entire range of practice of the medical profession. “To regulate” necessarily means to establish certain rules and restrictions by which the-practice of medicine is to be governed in this State. To regulate is to adjust by rule, to subject to governing principles, or to restrict within certain rules and limitations.

Within the regulation of the practice of medicine must necessarily fall the right to determine, or to provide means for the determination of, who may lawfully exercise the right to-practice medicine, and to establish such rules as shall determine what shall and what shall not be regarded as legitimate practice of the profession. The statute was passed to protect the health and promote the welfare of society, and to protect it ■from imposition and fraud. The purpose was to prohibit and punish fraud, deception, charlatanry and quackery in the practice of the profession of medicine,—to prevent empiricism, .and bring the practice of medicine under such control that, as dar as practicable, the ignorant and unscientific practitioner .should be excluded. The right to prescribe medicines for the •cure of diseases, and to administer them, falls clearly within "the practice of medicine; and the regulation of the sale of •drugs and nostrums by itinerant venders as clearly falls within the purpose of the act, as expressed in its title. Here, the •defendant, traveling from place to place with a band of music, .and collecting the people together, not only in his speeches, but by advertisements and pamphlets, was prescribing and vending remedies and nostrums for the cure of disease. The symptoms of disease were set forth. Ten different remedies, •capable of curing substantially all of the ills to which the human family is subject, were extolled and prescribed, while ■certificates of marvelous cures by these remedies were displayed. Not only do we think that the section of the Medical Practice act under consideration was not unconstitutional because the subject matter of it was not included within the title of the act, but the offered evidence clearly tended to show that the defendant had been guilty of violating its provisions. It follows, therefore, that the court erred in sustaining objection to the offered testimony, and in directing a verdict for the defendant.

The judgment of the county court is reversed, and the cause remanded to that court for further proceedings.

Judgment reversed.


author: Mr. Justice Magruder

text:
    Ole M. Tomle v. Leah J. Hampton.

      Filed at Ottawa June 15, 1889.

    1. Highway—sidewalk—what so regarded—private ground adjacent to sidewalk. If one connects a part of Ms own premises with a public sidewalk, he thereby invites the public to treat the part so connected as belonging to the sidewalk, and can not be heard to say that the whole is not a public way.
    2. Negligence—dangerous condition of private property adjacent to a public sidewalk—duty of the owner. Where the owner of land invites the public to make use of it, by connecting it with a public sidewalk, he must exercise due care to keep the premises in a reasonably safe condition. So, if a hole in a stone platform between a building and a street, open to the public use as a part of the street, is necessary to light the basement, and it can be made safe by a railing, or otherwise, it is the duty of the owner making the platform, to use ordinary care and diligence to make and keep such opening reasonably safe.
    3. Nuisance—upon leased premises—who liable for injury therefrom ■—the landlord or the tenant. As a general rule, the occupant, and not the owner, is responsible for injuries arising from a failure to keep the premises in a proper state of repair. But when premises are let with a nuisance upon them, by means of which the injury complained of is received, the owner or landlord will be liable.
    4. The owner of a lot erected a building thereon, with the front six feet back from the street, with a basement under the same. He laid a stone flagging between the building and the sidewalk, thus forming a stone walk or platform six feet wide, slightly raised above the level of the sidewalk. It was necessary to step up on this platform to enter the stores in the building, and persons along the sidewalk walked over it, and stood upon it to look into the show windows put into the building by the owner. Just below the show window there was an opening to the basement, five feet long and ten inches wide, to admit light to the basement, the opening being left unguarded and unprotected, by a railing or otherwise. In this condition the store was rented to tenants, and a person, in looking in the show window after dark, fell into the opening and was injured: Held, that the owner of the building was liable for the injury.
    5. In such case, the owner was the author of the nuisance, and being such author, when he leased the premises he was guilty, in law, of continuing the nuisance, and was liable for the damages it occasioned.

      6. Instruction—defect is cured 6y others. An omission in an instruction, even if error, is no ground for a reversal, if the defect is clearly supplied and corrected in others given. In such case the error works no injury.
    Appeal from the Appellate Court for the Second District;— heard in that court on appeal from the Circuit Court of Kane county; the Hon. Isaac G-. Wilson, Judge, presiding.
    Mr. Charles Wheaton, for the appellant:
    The lessor of premises not per se a nuisance, but which become so only by the manner in which they are used by the lessee, is not liable therefor. Jaffe v. Harteau, 56 N. Y. 398; Ryan v. Wilson, 87 id. 471; Swords v. Edgar, 59 id. 28; Robbins v. Jones, 109 Eng. C. L. 220; Burdick v. Cheadle, 26 Ohio St. 393; Mellen v. Merrill, 126 Mass. 545; Leonard v. Storer, 115 id. 86; McAlpine v. Powell, 70 N. Y. 126; King v. Thompson, 87 Pa. St. 365.
    The case of Jordin v. Crump, 8 M. & W. 782, is a case in point on that question. Also, Seavey v. Nickerson, 120 Mass. 306, Sweeney v. Railroad Co. 10 Allen, 368, and Har v. Deacon, 25 Mich. 1, the latter being a case of a child falling into an excavation on another’s land. All these cases go upon the principle that the owner is not liable unless those injured were on the owner’s premises by his invitation or inducement,— which brings us back to the principle, that he who holds out the invitation is the one who is liable for all injuries occasioned thereby.
    It does not appear that, under the lease in this case, appellant was bound to repair. Therefore, the lease being silent as to who should make repairs, it was the duty of the lessee to keep the premises in repair. Gott v. Gandy, 22 Eng. L. and Eq. 173; Leavitt v. Fletcher, 10 Allen, 121; Elliott v. Aiken, 45 N. H. 36; Estep v. Estep, 23 Ind. 114; City of Lowell v. Spaulding, 4 Cush. 277; Clark v. Babcock, 23 Mich. 164.

      The owner being out of possession, and not bound to repair, is not liable for injuries received in consequence of a neglect to repair. Russell v. Shenton, 3 A. & B. (N. S.) 449; Bishop v. Bedford Charity, 1 E. & B. 697; Cheetan v. Hampton, 4 T. R. 318; Opperman v. Starr, 2 Pa. St. 394.
    When premises are leased for a specified purpose, there is no implied contract that they are fit for the purpose. Foster v. Peyser, 9 Cush. 242; Dutton v. Gerrish, id. 89; Libbey v. Talford, 48 Me. 316; Cleves v. Milloughly, 7 Hill, 83; Jaffe v. Harteau, 56 N. Y. 398; Erskine v. Adeau, 6 Eng. 594.
    The second instruction given for the appellee is erroneous, as it leaves out of view entirely the question of ordinary care on the part of the plaintiff.
    Mr. A. J. Hopkins, Mr. N. J. Aldrich, and Mr. B. H. Thatcher, for .the appellee:
    It is a general rule, that the owner of a building which is occupied by a tenant, is not responsible for injuries arising from a failure to keep the premises in repair, unless, first, the landlord has, by express agreement with the tenant, agreed to repair, so that in case of a recovery against the tenant he would have his remedy over, and in that case, to avoid circuity of action, the party injured may, in the first instance, sue the landlord; or, second, unless the premises are let with a nuisance upon them, by means of which the injury complained of is received. Gridley v. Bloomington, 68 Ill. 47; Wharton on Negligence, sec. 727 a; Wood on Nuisance, sec. 141; Peoria v. Simpson, 110 Ill. 294; Union Brass Manf Co. v. Lindsey, 10 Bradw. 583.
    A judgment will not be reversed although some of the instructions may be technically wrong, where they are not calculated to mislead the jury, or justice has been done. Hardy v. Keeler, 56 Ill. 152; Railroad Co. v. Ingraham, 58 id. 120; Graves v. Shoefelt, 60 id. 462; McConnel v. Kibbe, 33 id. 177; Pahlman v. King, 49 id. 266.
   Mr. Justice Magruder

delivered the opinion of the Court:

This is an action of case, begun on September 26,1884, in the Circuit Court of Kane County, by the appellee by her next friend against the appellant to recover damages for injuries, received by appellee from a fall through a hole in the stone sidewalk platform below the show window of a store, owned by the appellant, fronting on Wilson Street in the town of Batavia. The judgment of the trial court was in favor of the plaintiff and has been affirmed by the Appellate Court. From the latter court the case is brought before us by appeal.

The appellant owns a building consisting of three stores fronting south on Wilson street, which runs east and west. The middle store at the time of the accident, which occurred on October 10,1883, was occupied by tenants of the appellant named Vincent & Patchin, druggists. The store was first leased by the plaintiff to Vincent & Patchin in the spring of 1880, and again in the spring of 1883. The building stood back six feet from the sidewalk, and appellant had laid stone flagging between the stores and the sidewalk, forming a stone walk or platform six feet wide in front of the stores, and slightly raised above the level of the sidewalk. It was necessary to step up upon this platform to enter the stores, and persons passing along the sidewalk walked upon it and stood upon it to look into the show windows. The drug store had a basement about nine feet deep with an outside entrance from the stone walk. The appellant had put a show window in the drug store for his tenants, and just below this window there was an opening to the basement, five feet long and ten inches wide, without any railing or protection of any kind. The opening was there before the premises had been rented to the druggists. After dark on the evening of October 10, 1883, the appellee, then a girl nine years old, went to the drug store on an errand for her parents, and, stopping in front of the window to look at some articles on exhibition there, fell through the opening into the vault below, and received the injuries, for which the suit is brought.

The appellant questions the correctness of the instructions-given by the trial court, because they hold that there can be-a recovery against the owner of the property under the foregoing state of facts. It is contended that, if the plaintiff below had any right of action at all, it was against the tenants who-were in the occupancy of the premises when the accident occurred.

As a general rule the occupant, and not the owner, is responsible for injuries arising from a failure to keep the premises in a proper state of repair. But one of the exceptions to-this rule is, “where the premises are let with a nuisance upon them by means of which the injury complained of is received.” In such case the owner is liable. (Stephani v. Brown, 40 Ill. 428; Gridley v. City of Bloomington, 68 id. 47; City of Peoria v. Simpson, 110 id. 294). In the present case it is admitted, that the opening through which the plaintiff fell, existed without any guard or protection before the lease was made to the tenants. It is claimed, however, that the opening in the stone platform was not a nuisance within the meaning of the exception to the rule. One of the reasons urged in favor of this position is, that the opening was upon the premises of the appellant, and, therefore, not a part of the street.

Although the area under the stone platform was a part of the appellant’s property, yet he so constructed the platform that the latter was really a part of the sidewalk. It was so situated with reference to the sidewalk that any person could walk upon it, or make use of it in approaching the store or the show window. It was subject to the constant use of the general public in passing along in front of the store. If a man connects a part of his own premises with a public sidewalk, he thereby invites the public to treat the part so connected as-belonging to the sidewalk, and cannot be heard to say that the whole is not a public way. Therefore, the opening in the-platform, or raised portion of the sidewalk, was as much a nuisance as though it had been in the lower level of the main walk. A nuisance is anything that worketh hurt, inconvenionce or damage. (3 Bl. Com. 216).

It is admitted that the appellant made the opening below the show window as it was when the appellee was hurt. He was therefore, the author of the nuisance, and, being such author, when he leased to others, he was guilty in law of continuing the nuisance. He rented the premises with the original wrong attached to them.. The lease affirmed the continuance of the wrong. He received rent as a consideration of the continuance, and should answer for the damage it occasioned. (Stephani v. Brown, supra).

The evidence tends to show, that, before the accident happened, the attention of the appellant was called to the dangerous character of the opening, and he was advised to fix it by Patchin, one of his tenants, and by the road commissioner appointed by the trustees of the town of Batavia. These warnings, however, he neglected to heed. We are of the opinion, that the instructions were not erroneous in holding, that a recovery could be had against the owner of the store, if the jury should find a recovery authorized by the evidence.

The appellant objects to the second instruction given for the plaintiff, because it fails to mention the exercise of ordinary care on the part of the plaintiff as being necessary to justify a recovery. Even if the second instruction was erroneous in this respect, we do not think that the defendant was injured thereby when all the instructions are read together. In several of them the jury are told that the plaintiff must have been in the exercise of ordinary care. In one of them, given by the court of its own motion, occurs the following: “It is another rule of law, that, though the defendant may be .guilty of negligence, the plaintiff cannot recover unless she was in the exercise of ordinary care and caution to avoid danger.” In still another the person entitled to recover is described as "’‘a person in the exercise of reasonable care and diligence in using such approach for the purpose for which it was constructed.”

It is claimed that the object of the opening was to admit light to the basement below, and that, if it was reasonably necessary for that purpose, the appellant is not chargeable with negligence for placing and keeping it there. Where a ■man invites the public to use a part of his land by connecting it with the public sidewalk, he must exercise due diligence to keep it in a reasonably safe condition. This obligation rested -upon the appellant in reference to the hole in the stone platform. If the hole was needed to get light for the basement, and it could have been made to serve that purpose in a safe ■condition, as well as in an unsafe condition, then it was appellant’s duty to make it safe. The evidence tends to show, that it could have been protected by a railing, or in some other mode, so as not to be dangerous to persons passing by, and yet at the same time so as to furnish the needed light. This view was fairly presented to the jury by the instructions. They were told that the appellant was only bound to use due care to make the opening reasonably safe, and to keep it in a reasonably safe condition, and that, if he complied with this requirement of the law, he had a right to make it subserve the purpose of furnishing light to his basement.

All questions as to the amount of the verdict and the character of the injuries received by appellee are settled by the judgment of the Appellate Court. We perceive no error in the record, which will justify a reversal.

The judgment of the Appellate Court is affirmed.

Judgment affirmed!.


text:
    Edwin T. Chapman v. Annie Chapman.

      Filed at Ottawa June 15, 1889.

      1. Residence—of a wife, other than that of the husband. As a general rule, the residence of a wife is fixed by that of her husband; yet-it is not true that a wife living separate and apart from her husband may not establish an independent residence.
    2. So where there is a permanent separation between a husband and" wife, he contending that she deserted him, and she that he declared his purpose not to live with her if she went to a particular place, they at that time living elsewhere, the residence of the wife will no longer follow the husband, and she may thereafter acquire a residence in a State other than that of the husband, within the meaning of our divorce statute, provided the change is made in good faith, and not merely for-the purpose of instituting a suit for divorce.
    3. Relevancy oe testimony—under the issues. On bill for a divorce by a wife against her husband, on the' ground of his adultery, the only issues mad e and submitted to the jury were, whether the wife was a resident of the State for the requisite period, and whether the charge of adultery was true. On the trial, the defendant offered in evidence letters of his wife, written to him, in which she admitted that she had procured a miscarriage upon herself, and declared she would bear no more children to him, and indirectly consented to his committing adultery, which the court, on objection, refused to admit: Held, that under the issues the evidence was wholly irrelevant, and therefore properly excluded.
    4. Witness—credibility—of a detective. On bill by a wife lor divorce, the deposition of a detective hired by the wife to watch her husband and procure evidence of his adultery, will be entitled to but little-weight, and in this case might be entirely disregarded, but for the halting and evasive manner in which the husband contradicted such testimony.
    5. Pbactice in the Supbehe Court—of the abstract—what it should' contain. Where the refusal of an instruction is assigned for error, the series of instructions given should be set out in the abstract, so that this court may see that the one refused was not in effect given in others, without having to examine the record for that purpose. If this is not. done, the court may properly refuse to consider the error assigned.

      6. New trial—newly discovered evidence. To entitle a party to a new trial, on the ground of newly discovered evidence, he must show that such evidence could not have been procured at the trial by the use of reasonable diligence. The fact that he did not believe evidence would be given upon an issue made, furnishes no excuse for not being prepared to meet it.
    Appeal from the Appellate Court for the First District;—■ heard in that court on appeal from the Superior Court of Cook county; the Hon. Gwynn Garnett, Judge, presiding.
    Mr, William H. Sisson, and Mr. Clarence F. Gooding, for the appellant:
    The residence of complainant in the State one year was necessary. It is essential to the jurisdiction of the court. Way v. Way, 64 Ill. 406.
    As to what constitutes such residence, see Frost v. Brisbin, 19 Wend. 11; In re Fitzgerald, 2 Caines, 317.
    Connivance of a party to adultery is a bar to a bill for a divorce. 2 Greenleaf on Evidence, secs. 51, 57; Bishop on Marriage and Divorce, p. 3, par. 5, and p. 10, par. 14; Rev. Stat. chap. 40, sec. 10.
    Mr. George Meeoh, and Mr. William C. Asay, for the appellee :
    If the injured party is an actual resident of this State at the time the offense is committed, and the offense is committed without the State, and such actual residence continued till the bill was filed, the court will have jurisdiction, though the residence has not been for one year. Way v. Way, 64 Ill. 406.
    By our statute a married woman may be an actual resident of this State though she has no domicile here; and if, while she is such actual resident, the offense which supplies the ground of divorce is committed, because of the necessity of her separate and independent residence her actual place of residence becomes her separate and legal domicile. Hopkins
      v. Hopkins, 35 N. H. 474; Dutcher v. Dutcher, 39 Wis. 651; Pate v. Pate, 6 Mo. App. 49.
    A defendant who would rely upon matter of recrimination must plead it. This is the general doctrine applicable to all defenses. 2 Bishop on Marriage and Divorce, (5th ed.) sec. 341. As .to evidence of connivance: Ibid. secs. 5, 17, 18, 22, 49.
    There is no issue raised by the pleadings which permits evidence of connivance.-
    That appellant must, in his affidavit, show diligence, and that the newly discovered evidence is not cumulative, impeaching or contradictory, we refer to the following decisions: Schlenker v. Risley, 3 Scam. 483; Crozier v. Cooper, 14 Ill. 139; Stetham v. Shoultz, 17 id. 99; Calhoun v. O’Neal, 53 id. 354; Skelly v. Boland, 78 id. 438; Clayes v. White, 83 id. 540; Harvey v. Collins, 89 id. 255; City of Elgin v. Renwick, 86 id. 498; Insurance Co. v. Gould, 80 id. 388; Adams v. People, 47 id. 376; Morrison v. Stewart, 24 id. 24; Railroad Co. v. 57 its, 53 id. 452; Laird v. Warren, 92 id. 205 ; Gottschalk v. Hughes, 82 id. 484; Edgmon v. Ashelby, 76 id. 161; Wright v. Gould, 73 id. 56; Champion v. Ulmer, 70 id. 322; Palmer v. Bethard, 66 id. 529; Bowen v. Rutherford, 60 id. 41.
    Newly discovered evidence must be decisive and conclusive in its character, and must be such as would change the result. Chapman v. Burt, 77 Ill. 339; Hayes v. Houston, 86 id. 487; Bulliner v. People, 95 id. 394.
   Mr. Justice Wilkin

delivered the opinion of the Court:

This is a proceeding for divorce, begun in the Superior Court of Cook county, by appellee, against appellant. Two issues are made by the amended bill and answer: First, was appellee a resident of Chicago at the time of the alleged adultery by appellant; second, is the charge of adultery true. The offense is alleged to have been committed out of this State on the 30th day of April, 1886, and other days, up to and including May 9, 1886. It is averred that complainant was during all of said lime an actual and bona fide resident of the city of Chicago. The trial resulted in a verdict for complainant.

One of the causes alleged on motion for new trial was newly discovered evidence. The motion was overruled, and a decree rendered npon the verdict in accordance with the prayer of the bill. The defendant appealed first to the Appellate Court, where the decree of the Superior Court was affirmed, and now to this court.

It is first insisted that the verdict of the jury was contrary to the evidence on both issues. The only testimony introduced as to the residence of the complainant at the time alleged was that of the parties to the bill. Appellant testified that her residence was in New York. His testimony is, however, argumentative rather than direct, being based upon the theory that her residence must necessarily have been where his was. While it is true, as a general rule of law, that the residence of the wife is fixed by that of the husband, yet it is not true, as contended by counsel, that a wife living separate and apart from her husband may not establish an independent residence. Here both parties swear that there was a separation about April 1, 1886, he swearing that she then deserted and abandoned him; she, that he declared his purpose not to live with her if she went to Chicago. Under these facts, her residence was no longer the same as his, and she might thereafter lawfully acquire a residence in a State different from that in which he resided, within the meaning of our divorce statute, provided, of course, the change was made in good faith, and not merely for the purpose of instituting divorce proceedings. She denies that even her husband ever had a residence in New York, and her testimony proves the allegation of her bill as to her residence in Chicago. On the evidence introduced the jury was justified in finding the issue as to residence for complainant, though there is much reason to fear that a controlling motive for fixing the Chicago residence was the bringing of the suit for divorce.

On the second issue complainant offered the deposition of James Gordon, who claims to be a detective residing in New York City, and who was hired by her to watch her husband and procure evidence against him. We give but little credit to his evidence, and, but for the halting, evasive manner in which it is contradicted by appellant, would disregard it altogether. A Mrs. Stella Chapman, wife of a brother of ajopellant, also living separate and apart from her husband, testified that appellant admitted to her that he had been guilty of adultery. She, too, is contradicted by appellant, but his testimony, as taken by the reporter, shows that his manner on the witness stand and mode of answering questions must have been calculated to discredit him. We can not say the evidence is wholly insufficient to sustain the charge of adultery.

One instruction asked by appellant was modified and two refused. There was no error in the modification. The instruction, as asked, read: “To constitute residence there must be a fixed abode and an intention to remain permanently, or at least for a time, for business, or for other reasons not solely connected with the bringing of a suit for divorce.” The words “permanently or” were stricken out, and the instruction given as modified. The effect of the instruction is not changed by the modification.

The series of instructions given does not appear in the abstract, nor is it shown, in any manner, that the jury was not properly instructed on behalf of appellant, nor that the refused instructions were not, in effect, given in others. This method of presenting a question on refused instructions compels the court to go to the record to ascertain whether or not error has been committed, and we might with propriety refuse to consider the point, as did the Appellate Court. In view of the unsatisfactory character of the evidence, we have examined the instructions, and find that the law was not only fairly, but favorably, given to the jury on behalf of appellant, and that the two were properly refused.

Appellant sought to introduce certain letters written by his wife to him, in which she admitted that she had procured a miscarriage upon herself, declaring she would bear no more children to him, and, indirectly at least, consenting to his committing adultery. On objection, they were excluded, and this ruling is also assigned as error. ' Under the issues, the evidence was wholly irrelevant, and on that ground alone was properly ruled out.

The newly discovered evidence, as shown by affidavits of proposed witnesses, would strongly tend to prove that appellee was not in Chicago from April 10 to May 10, and had not at that time become a resident of this State, but no legal excuse is offered for not having produced it, or other like evidence, •on the trial. Nothing in practice is better settled than that in such case it must be shown that the newly discovered evidence could not have been produced at the trial by the use of reasonable diligence. The only showing on that subject is the following affidavit by appellant:

“Edwin Taylor Chapman, on oath, says: Since trial he has discovered evidence material to the issues, which was not known to him at time of trial, and could not, by reasonable diligence on his part, have been produced upon trial; that said newly discovered evidence is this: That whereas, the •complainant, Annie Chapman, on said trial testified that she came to Chicago on or about the first day of April, 1886, to reside and remain, and did so reside and remain until the latter part of September, 1886, continuously, and affiant, although believing that said statements were untrue, had not thought, believed or expected that the complainant would so testify in this cause, therefore was not prepared to controvert said testimony, yet, since said trial, he has discovered evidence to prove the facts to be as follows, to-wit.”

It proves negligence rather than diligence. On the case ■made by the bill, proof of complainant’s residence in Chicago between the dates of April 10 and May 10 was absolutely neeessary to her success. She had alleged it, and appellant had denied it. What reason, then, or what right, had he to believe-that she would not testify to it or prove it by others ? Yet by his affidavit he admits that his want of preparation to prove what he now says he can prove, resulted solely from a belief that an essential allegation of the bill would not be proved. By his own showing he experimented—trifled with the court—- and only began to prepare for trial after the verdict had been rendered. The court below very properly refused to allow him. to do so.

The judgment of the Appellate Court will be affirmed.

Judgment affirmed*


author: Mr. Justice Bailey

text:
    Jesse Wilbur v. John G. Wilbur et al.

      Filed at Mt.Vernon June 17, 1889.

    1. Burden of proof—generally. The burden of proof, in all cases, must rest upon the party against whom is thrown the weight of the presumption as to the facts which the law raises. It is not necessary that such presumption should always arise in the first instance, provided it is so raised as to affect the decision of the whole ease.
    2. Same—on contest of will—testamentary capacity. On the contest" of a will, upon the question of testamentary capacity, the law throws-the burden of proving the sanity of the testator, in the first instance, on the party asserting the validity of the will; but after a prima facie case has been made out by the testimony of the subscribing witnesses, the weight of the legal presumption in favor of sanity is in favor of the proponent, from which it necessarily results that upon the whole ease-the burden of proof rests upon the contestants.
    ,3. If, upon the whole evidence, the law raises a prima facie presumption, the party against whom it arises will be entitled to a verdict only upon proving his case by a preponderance of the evidence. When the prima facie case is once made, the contestants must fail, unless the preponderance of the whole of the evidence is on their side.

      i. Same—instruction on that subject. On the trial of a bill contesting" a will, the court, at the instance of the contestants, instructed the jury,, “that it devolves upon the proponent of this will to prove, by a preponderance of the evidence, that at- the time of signing and acknowledging' said will, the said W. (testator) was of sound mind and memory, as defined in the instructions of the court, and if he has failed to do so, you. should find that it is not his willHeld, that as the instruction was not limited to the question of the proponent’s duty to establish the validity of the will, in the first instance, by the testimony of the subscribing witnesses, it was erroneous.
    5. Instructions—of the accuracy necessary. Where the evidence-on a bill to contest a will, as to the mental capacity of the maker, is-conflicting, so that each party’s evidence, standing alone, would justify a finding in his favor, it is very important that the jury should be accurately instructed as to the law of the case.
    6. Same—whether defect in one is cured by another. In this case, where the evidence was conflicting, an error in giving one instruction was considered not to have been cured by a correct one given at the-instance of the other party against whom the verdict was rendered.
    Appeal from the Circuit Court of Fayette county; the Hon, James A. Creighton, Judge, presiding.
    Mr. Henry C. Goodnow, and Messrs. Farmer & Brown, for the appellant:
    After the proponent establishes the will by the subscribing" witnesses, he makes a prima facie case, and the burden of proof shifts to the contestants. Carpenter v. Calvert, 83 Ill. 62,
    Messrs. Cratty Bros., for the appellees;
    The third instruction given for contestants is correct. It refers directly to the time of making the will, and comes directly under the rule in Carpenter v. Calvert, cited by counsel.
    The onus is clearly upon the proponent of the will. Holloway v. Galloway, 51 Ill. 159; In re Bonse’s Will, 18 Bradw, 433; Rigg v. Wilton, 13 Ill. 15 ; Tate v. Tate, 89 id. 42.
    When a bill is filed to set aside a will, the burden of sustaining the will is upon those averring its validity, and the question is tried de novo. Tate v. Tate, 89 Ill. 42; Carpenter , v. Calvert, 83 id. 62.

      The parties supporting the will must prove that the will was executed by the testator, that he acknowledged the execution to be his act, and that he was at the time of sound mind and memory,—or, in other words, if the complainants can show the want of any of the necessary elements which make a valid will, the will must fall. Jarman on Wills, (5th Am. ed.) 104; Redfield on Wills, 30-50 ; Turner v. Cooke, 36 Ind. 129; Perkins v. Perkins, 39 N. H. 163; Brooks v. Barrett, 7 Peck, 94; Dickie v. Carter, 42 Ill. 376; Crowley v. Crowley, 80 id. 473.
   Mr. Justice Bailey

delivered the opinion of the Court:

This was a bill in chancery, brought by John Gr. Wilbur, Mary Switzer, Charles A. Switzer and Dennis W. Switzer, against Jesse Wilbur, to contest the will of Dennis S. Wilbur, deceased. John Gr. Wilbur, one of the complainants, and Jesse Wilbur, the defendant, are sons of the testator, the latter being the executor and proponent of the will. The other complainants are the children of a deceased daughter of the testator. Dennis S. Wilbur died June 7, 1885, leaving him surviving the complainants and defendant, his children and grandchildren and only heirs at law, and leaving an instrument in writing purporting to be his last will and testament, bearing date May 5, 1885. On the 18th day of June, 1885, said will was duly admitted to probate, and letters testamentary thereon were granted to said Jesse Wilbur, who qualified and entered upon his duties as executor.

The bill was filed September 1, 1885, and alleges that said Dennis S. Wilbur, at the time of executing said instrument, was not of sound mind and memory, but on the contrary, was much enfeebled by age and disease, and his mind and memory were so impaired as to render him wholly incapable of making any just and proper distribution of his estate; also, that the execution of said instrument was brought about by undue arts, fraudulent practices and improper influences on the part of said Jesse Wilbur. The defendant answered admitting the execution of said instrument, and alleging its probate and the issuing of letters testamentary, but denying that the testator, at the time of its execution, was of unsound mind and memory and incapable of making a will, and also denying that the defendant used or exercised any fraudulent practices or undue influence to induce the testator to execute said will, and alleging that said instrument was the last will and testament of Dennis S. Wilbur, deceased.

The issue as to whether said instrument was the will of Dennis S. Wilbur was submitted to a jury who, by their verdict found that it was not his will, and on such finding the court entered a decree adjudging and decreeing said instrument and the proceedings thereunder to be null and void. From that decree the defendant has appealed to this court.

The court instructed the jury that there was no evidence which would warrant their considering the issue of undue influence, and the propriety of that instruction is not now challenged by either party. Upon the question of testamentary capacity the evidence was voluminous and very conflicting. The testator, at the date of the will, was a man sixty-six years of age, and had then been for a considerable time suffering from failing health and bodily infirmity which a little more than a month later resulted in his death. The evidence introduced on behalf of the proponent of the will tending to show testamentary capacity, consisted mainly of the testimony of witnesses as to various matters of business which the testator had personally transacted or in which he had personally participated within the last few weeks prior to the date of the will, and to some extent subsequent to that date, and also the testimony of the justice of the peace who drew the will, as to the acts of the deceased and his apparent physical and mental condition on that occasion. There can be no doubt that this testimony, if it stood alone and was believed by the jury, would have been sufficient to sustain a finding in favor of the proponent of the will.

On the other hand, the contestants produced a large number of witnesses, some nineteen in all, many if not most of whom had known the testator intimately for years, and had seen and conversed with him frequently at about the date of the will, and who testify that, owing to his mental and physical infirmities, he was incapable of transacting ordinary business, or of understanding or comprehending the business in which he was engaged when making his will. They also support the opinions thus expressed by testimony as to the conversations, conduct, appearance and demeanor of the testator during a period of several weeks, including the date of the will. This testimony, if believed by the jury, was, in our opinion, if standing alone, sufficient to warrant a verdict in favor of the contestants.

The evidence being thus conflicting, it was highly important that the jury should be accurately instructed as to the law. An instruction in relation to the burden of proof, and the legal presumptions as to the sanity of the testator, was given at the instance of the proponent, following strictly and accurately the rule laid down by this court in Carpenter v. Calvert, 83 Ill. 62. That instruction was as follows:

“The court instructs the jury that, as a matter of law, when the party insisting on the validity of a will, has established the sanity of the testator at the time of the making of the will, by the oath or affirmation of two of the subscribing witnesses, and that the will was legally executed, acknowledged and witnessed, as explained in these instructions, then a prima facie case in favor of the will is made out, and the party asserting the validity of the will must prevail and the will must stand, unless the party seeking to contest the will on the ground of insanity has produced evidence of want of necessary capacity sufficient to overcome or neutralize the effect of the affirmative testimony given in favor of the validity of the will, and also to overcome and neutralize the presumption arising from the general rule of law which is, that all men are presumed sane until the contrary is proven, and unless such prima facie case is so overcome or neutralized, your verdict should he in favor of the validity of the will.”

While the rule as stated in this instruction throws the burden of proving the sanity of the testator, in the first instance, on the party asserting the validity of the will, yet after a prima facie case has once been made out by the evidence of the subscribing witnesses, it throws the weight of the legal presumption in favor of sanity into the scale in favor of the proponent, from which it necessarily results that, upon the whole case, the burden of proof rests upon the contestants. In the case above cited, we said: “Our statute, from an abundance of caution, provides that, in the first instance, the validity of a will shall not rest merely upon this presumption of law, arising from the fact that the will was duly executed, but requires that the witnesses who subscribed to the will shall testify affirmatively to the testamentary capacity of the party making the will. When this has been done, however, and contradictory testimony is produced tending to show want of testamentary capacity, the party asserting the validity of the will must prevail, unless the contradictory testimony be sufficient to overcome or neutralize the effect, not only of the affirmative testimony given in favor of the validity of the will, but also to overcome or neutralize that presumption arising from the general rule of law, that all men are presumed sane until the contrary is proven. In weighing the conflicting proofs, the party supporting the will is entitled to the benefit of this presumption.”

The burden of proof in all cases must rest upon the party against whom is thrown the weight of the presumption, as to the'facts, which the law raises. It is not necessary that such presumption should always arise in the first instance, provided it is so raised as to affect the decision of the whole ease. ■ If upon the whole evidence the law raises a prima facie presumption, the party against whom it arises will be entitled to a verdict only upon proving his case by a preponderance of the evidence. It follows that in cases like the present, the contestants must fail unless the preponderance is on their side. The court, however, at the instance of the contestants, gave to the jury the following instruction:

“That it devolves upon the proponent of this will to prove by a preponderance of the evidence that, at the time of signing and acknowledging said will, the said Dennis S. Wilbur was of sound mind and memory as defined in the instructions of the court, and if he has failed to do so, you should find that it is not his will.”

This instruction was not limited to the question of the proponent’s duty to establish the validity of- the will, in the first instance, by the testimony of the subscribing witnesses, but lays down a rule requiring it to appear, upon consideration of the whole case, that the preponderance of the evidence as to the testamentary capacity of the testator was with the proponent. That such is not the rule has already been sufficiently shown. The instruction was therefore erroneous, and as it had a tendency to deprive the proponent of the benefit of the legal presumption in favor of the testator’s sanity, such error necessitates a reversal of the decree. It cannot be said that the error was cured by the correct instruction given at the instance of the proponent. The two instructions are inconsistent and contradictory, and we can not say that the jury were not guided in their deliberations by the erroneous instruction.

Various other questions are discussed by counsel, but as the error already pointed out disposes of the case, other points need not he considered. The decree will be reversed and the cause remanded.

Decree reversed,


text:
    John De Koven et al. v. The City of Lake View.

      Filed at Ottawa June 15, 1889.

    1. Special assessments—extent of assessment, as excluding streets. In assessing the special benefits upon a tract of land intersected by streets, for the construction of a sewer, it will be presumed that the commissioners deducted the streets, and estimated the benefits to the land, exclusive of the streets, at the amount assessed upon it, unless the contrary appears. Describing the tract does not show that the assessment was upon the number of acres in the subdivision or description.
    2. Same—assessment upon lots, etc., separately, or in gross—the statute construed. Section 142 of chapter 24, of the statute relating to special assessments, provides that the commissioners shall make an assessment roll, in which shall appear the names of the owners of each lot, block, tract or parcel of land, and the amount assessed as special benefits thereto. While this section does not authorize the assessment of a certain amount on two lots owned by different persons, yet there is nothing in the statute requiring separate assessments on a lot, block or tract owned by the same party, which may be divided by a street. The location of a street over a lot does not make the lot consist of separate tracts of land.
    Appeal from the County Court of Cook county; the Hon. Richard Prendergast, Judge, presiding.
    Mr. David Fades, for the appellants:
    The assessment of the land of appellants without excepting the streets intersecting and cutting off the same, was illegal and invalid. The law is well settled, that where an entire tract of land is assessed as a single tract, to one who owns only a portion of it, such assessment is illegal, and the tax based thereon is void. Lyman v. People, 2 Bradw. 289 ; Roby v. City of Chicago, 48 Ill. 130; Howe v. People, 86 id. 288.
    When lands are separated, either by the use or purpose to which they are devoted, or by the mode of their occupation, or are disconnected in location, a tax laid generally upon an ■entire valuation can not be made a lien upon each parcel, .■although owned by one person. Welty on Law of Assessments, sec. Ill, and note; Shimmin v. Inman, 26 Me. 228; Hayden v. Fraher, 13 Pick. 492.
    The land of the appellants was supplied with a sewer of sufficient capacity, and in every way adapted to its wants and needs, and the appellee had no power to construct the contemplated sewer in Lawrence avenue, and no benefit would accrue to the appellants thereby.
    Mr. Hervey H. Anderson, for the appellee:
    The first point was not raised on the trial below; but, it will be presumed that one-half of the avenues was not included in the assessment upon appellant’s property.
    The second point of appellants, for the same reason, can not be considered well taken, for the mere fact that the property is divided by a street does not make it two separate pieces or parcels of land, in the sense of those cases cited by appellants. In those eases which incline most favorably towards ■appellants’ position, the separate pieces or parcels of property were different lots or blocks, or entire descriptions.
    On the third and last point made by appellants, as to the ■capacity of the old sewer to supply the wants of their property, it seems to me, under repeated decisions of this court, that the finding will not be disturbed, and that it must be held, here, the proposed sewer will benefit appellants’ land to the extent of the assessment.
   Mr. Justice Craig

delivered the opinion of the Court:

This was an application of the city of Lake View, in the county court of Cook county, for confirmation of a special ■assessment ordered to pay for the construction of a sewer to be laid in Sheffield avenue and Lawrence avenue in said city of Lake View. John De Koven and E. W. Blatchford, trustees of the estate of I. H. Burch, deceased, appeared in the county court and filed various objections to the confirmation of the assessment. The court overruled all of the objections so filed, •and entered an order confirming the assessment, to reverse which the trustees have appealed.

Only three of the objections urged in the county court aré .relied upon here: First, the assessment of the land of appellants without excepting the streets intersecting and cutting off the same, was illegal and invalid; second, the land should have been assessed in parcels, and not as an entire tract; and third, the land was supplied with a sewer of sufficient -capacity, and hence appellants’ land was not benefited.

The land owned by appellants is described as the south twenty acres of the south-east quarter of section 8, township -40, north, range 14, east of the third principal meridian, being lot 4 in Fussey & Finnemore’s subdivision of the south-east quarter of section 8. There are certain streets laid out upon :a part of this twenty-acre tract of land, and the contention is that it was the duty of the commissioners, in making the assessment, to deduct the streets from the twenty acres,- and as this course was not pursued, the assessment is illegal. We -do not regard the point well taken. In making the assessment on this tract of land, it is designated as the south twenty acres in the subdivision of a certain quartér-section; but it •does not appear, from the record, that the commissioners, in making the assessment, estimated the land at twenty acres, and made the assessment at a certain sum per acre. For .aught that appears, the commissioners, in fixing the amount this land was benefited, may have deducted all the streets in the land, and, after they were taken out, estimated the bene.:fits to the land at the amount assessed upon it. It is unreasonable to suppose that the commissioners estimated the tract at any definite number of acres. In making the assessment ■ they no doubt examined the tract of land, and after taking into consideration the streets, they then assessed the benefits,. without stoppling to determine whether the lot actually contained fifteen, eighteen or twenty acres.

It appears that the tract of land in question is divided by Sheffield avenue into two parcels, and hence it is contended that the assessment should have been upon the two parcels, and not upon the entire tract as one lot of land. Section 142' of chapter 24 of the statute relating to special assessments, provides that the commissioners shall make an assessment-roll, in which shall appear the names of the owners, so far as-known, a description of each lot, block, tract or parcel of land, and the amount assessed as special benefits thereto. Under this statute, while the commissioners would not be authorized to assess a certain amount on two lots owned by different persons, yet there is nothing in the statute requiring separate-assessments on a lot or block or tract, owned by the same party, which may be divided by a street. The fact that a street was-located over or across the lot did not make two separate tracts of land. It remained, as before, lot 4, in Fussey & Finnemore’s subdivision of section 8, and as such the commissioners were-authorized to assess it.

The last point relied upon is, that the land in question was supplied with a sewer, and hence not benefited by the improvement. It seems that a sewer had been constructed in Lawrence avenue several years ago, by the Graceland Cemetery Company, and appellants claimed that this sewer supplied the land in question with proper drainage. As to the condition and capacity of this old sewer the evidence is conflicting, and we do not think the finding of the county court on this branch of the case is so clearly against the weight of evidence as to authorize a reversal of the judgment upon that ground.

The judgment of the county court will be affirmed.

Judgment affirmed.