text:
    Henry Jackson v. The People of the State of Illinois.

      Filed at Ottawa October 2, 1888.

    1. Criminal law—obtaining money by false pretenses—in what a false pretense may consist—as, on the sale of property. A false pretense is such a fraudulent representation of an existing or past fact, by one who knows it not to be true, as is adapted to induce the person to whom it is made, to part with something of value. It may relate to quality, quantity, the nature or other incident of the article offered for sale, whereby the purchaser, relying on such false representation, is defrauded.
    2. It is true, that in a negotiation for the sale of property, statements may be a mere commendation or expression of opinion, by which the seller seeks to enhance the price of the property, and justifiable; but when such statements are made and intended as an assertion of a fact material to the negotiation, as a basis on which the sale is to be made, if they be false, and are so known to the seller, the latter will be guilty of the offense, if he thereby induces the buyer to part with his property.
    3. Same—making a warranty to purchaser as to matters embraced in false representation. An indictment will lie against the vendor of a horse who effects a sale and obtains the purchase price thereof by false representations as to the soundness, quality and habits of the animal, knowing their falsity, notwithstanding he may give the purchaser a written warranty embracing the matter so fraudulently represented.
    4. Where a person effects a sale by false representations as to the quality of the thing sold, and gives a bill of sale warranting the property, stating that the payment is made in consideration of the warranty alone, and not upon any verbal or other representations, the People, upon an indi ctment against the vendor for obtaining money upon false pretenses, will not be precluded from showing the true state of the facts, and the consideration upon which the money was in fact paid.
    5. Same—presumption as to knowledge that representations were false. A person who publicly advertises a horse for sale, representing the animal as possessing certain qualitie’s, when such representation is false, will be presumeid, unless the contrary is shown, to speak from knowledge of the character and qualities of the animal.
    6. Same—evidence—advertisement of property for sale, containing false representations. Where the sale of a horse is effected by means of an advertisement in a newspaper, and the vendor states to the purchaser substantially the same thing as that contained in the advertisement as to the qualities of the animal, the advertisement is properly admitted in evidence, on an indictment against the vendor for obtaining money on the sale upon false and fraudulent representations as to the qualities of the same, without direct proof that the defendant procured the publication of such notice.

      1. Same—evidence—other cases of fraud by the same party—whether admissible. On the trial of one on an indictment for obtaining money on false pretenses in the sale of. a horse, evidence tending to show that the defendant was in the habit of making false representations or resorting to fraudulent practices in the sale of other horses, is clearly inadmissible. But testimony tending to show that the defendant, by his long continuance in the business of handling and selling horses, knew the horse sold was not of the character or in the condition represented by him, is competent.
    8. Bekob will not always bevbbse—admitting incompetent evidence. In cases where the proof clearly justifies the finding, and it must have been the same had not certain incompetent evidence been admitted, the error in its admission will be no ground for a reversal.

      Writ of Error to the Appellate Court for the First District ;—heard in that court on writ of error to the Criminal Court of Cook county'; the Hon. M. F. Tuley, Judge, presiding.
    Plaintiff in error was indicted in the Criminal Court of Cook county for obtaining money under false pretenses. In the indictment he was charged with having, knowingly, designedly and falsely, pretended to one John Hines that a certain horse which he proposed to sell, and did sell, to said John Hines, for the sum of $110, was a healthy horse, perfectly sound in all parts of its body, without bad habits or tricks, was a good traveler, capable of trotting one mile in three minutes, and a good horse to be used in a buggy or wagon; whereas, on the contrary, said horse was unhealthy and diseased, and not perfectly sound in all parts of its body; and whereas, said horse was lame, balky, foundered and unsound; and whereas, said horse was not without bad habits, but was tricky and of bad habits; and whereas, said horse was not a good traveler; and whereas, said horse was not a good horse to be used in a buggy or wagon, or of the value of $110, but, on the contrary, said horse was utterly unfit to be used in a buggy or wagon or other vehicle whatsoever, and was wholly worthless and of no value whatever,—all of which the defendant well knew, etc. A jury was waived, and trial had by the court, resulting in a finding of guilty, and sentence under the statute. On writ of error from the Appellate Court, a judgment of affirmance was there rendered, and the defendant prosecutes this writ of error from this court.
    Messrs. Forrest & May, for the plaintiff in error:
    There can be no adequate false pretense without a fraudulent representation of some past or existing thing, as distinguished from opinion. 2 Bishop on Crim. Law, (6th ed.) 415, 428; State v. Stanley, 64 Me. 157; Commonwealth v. Jackson, 132 Mass. 16; State v. Mills, 17 Me. 211.

      When there is a sale with warranty, if the vendee relies on the warranty the ease is not within the statute. Rex v. Coddington, 1 C. & T. 161.
    The court erred in admitting in evidence the advertisement of the horse, without proof that Jackson was the advertiser. It was also in conflict with the rule prohibiting evidence of other frauds. Commonwealth v. Jackson, 132 Mass. 16; State v. LePage, 56 N. H. 245; Strong v. State, 86 Ind. 208; Regina v. Holt, Bell’s C. C. 280.
    Mr. Geob&e Hunt, Attorney General, for the People:
    A false pretense may relate to quality, quantity, nature or other incident of the article offered for sale, whereby the purchaser relying on such false representation is defrauded. State v. Stanley, 64 Me. 157; Regina v. Abbott, 61 E. C. L. 629; People v. Crissie, 4 Denio, 525 ; Regina v. Kenrick, 52 R. 49; Commonwealth v. Jackson, 132 Mass. 16; 2 Bishop bn Crim. Law, 415, 447.
   Mr. Justice Shops

delivered the opinion of the Court:

This is an indictment, under section 96 of the Criminal Code, for obtaining money under false pretenses. The offense charged is, that the defendant, knowingly and falsely, pretended to one Hines that a horse defendant was proposing sell to Hines was healthy, perfectly sound, free from bad habits or tricks, was a good traveler, and a good horse to be used in a buggy or wagon. The errors assigned are, that the verdict is not supported by the evidence, that improper evidence was admitted on behalf of the People, and that the court refused to hold as law applicable to the case, certain propositions submitted in writing.

It is objected that the court erred in admitting, against the objection of the defendant, parol evidence of representations made by the defendant to Hines at the time of the sale of the horse, for the reason that certain instruments in writing were executed by the respective parties, as follows:

“Chicago, June 22, 1885.
“I, Henry Jackson, sell and deliver to Mr. J. Hines one sorrel horse. I warrant free from all incumbrance. He is seven years old, has good eyes, good wind, kind to handle in and out of the stable, and I warrant he will trot a mile in three minutes; and I promise that if the said horse don’t come up to the above warranty, at the expiration of twenty days I will take him back and refund the money, providing he is returned in the same condition as when delivered. And I, Mr. J. Hines, in consideration of this warranty alone, and not upon any verbal or other representations, pay to Henry Jackson the sum of $110.
“¡Received payment in full. Henry Jackson.”
“Chicago, June 22, 1885.
“I, Mr. J. Hines, bought from Henry Jackson one sorrel horse, which he warrants free from all incumbrance. He is seven years old, has good eyes, good wind, kind to handle in and out of the stable, and he warrants he will trot a mile in three minutes; and he promises if said horse don’t come up to the said warranty, at the expiration of twenty days he will take him back and refund the money, providing he is returned in the same condition as when delivered. And I, Mr. J. Hines, » » . 0 in consideration of this warranty alone, and not upon any verbal or other representations, pay to Henry Jackson the sum of $110.'
Mr. J. Hines.”

It appears from the uncontradicted evidence of Hines, that the representations alleged, and which were permitted to be proved, were made, and the sale completed, including the payment of the money by Hines, and the receipt of it by the defendant, before the signing and delivery of said instrument.

He testifies, that after the contract had been completed, including the payment of the money, the defendant produced the instruments before set out, and asked the witness to sign the latter one of them, which he did. It is not shown that any fraud was used to induce the execution of said instrument by Hines; but it is evident that while Hines signed the paper prepared and produced by defendant, he was induced to make the contract of purchase relying upon the representations previously made by the defendant. He had told the defendant that he knew nothing about horses, and must rely upon his (defendant’s) word as to the character and value of the horse. The witness asked defendant if he had a buggy with -which the horse could be tried, to which defendant replied, that the buggy had been sold separately, when the witness again said to the defendant, “I will have to take you at your word.” The particular contention, however, is, that the previous negotiations were merged in the writing, and parol evidence thereof was therefore inadmissible; and it is also said, that the representations in the writing are warranties, and that a criminal prosecution can not be predicated on a warranty.

As before stated, the trade had been made and the money obtained from Hines upon the alleged fraudulent representation of the defendant, before the writings were produced by him. This is not a civil suit upon a contract, nor is the prosecution based upon" the written warranty, but upon the fraud alleged to have been committed in obtaining the consent of Hines to part with his money, and neither rule contended for can therefore have any application to this case. It is needless to say, that even if Hines had understood the last clause of the instrument signed by him,—that is, that in consideration of the warranty alone, and not upon any verbal or other representation, he paid to the defendant the money,—the People would not be precluded from showing the true state of facts, and the consideration upon which the money was in fact paid. No statement or declaration of Hines, made after parting with his money upon the fraudulent representations of the defendant, would change the character of the transaction. The offense charged consisted in the fraud practiced by the defendant, in knowingly and falsely representing and pretending that to be true which was not true, and by reason of which false and fraudulent pretenses Hines was induced to part with his money. If the rules contended for are to be applied in such case, every person selling property, and obtaining money therefor by false pretenses, can escape the penalty provided by law by simply inducing the purchaser to accept a bill of sale in which some warranty may be inserted, and thus, by a show of fairness, be enabled the more effectually to perpetrate the fraud. The instrument prepared for execution beforehand, as was here done, might contain, in the form of warranty, the very representations relied upon by the purchaser; and if the acceptance of such instrument would absolve the defendant from criminal responsibility for pretenses before then made, he would be enabled, by changing the form, but not the substance, of his representations, to more effectually carry out Ms fraudulent purposes. Careful as the law is of the rights of persons, we can not lend our sanction to the application of the rules where it would be attended with such consequences.

It is further insisted, that even if it be clear that the representations were untrue, the evidence does not show that defendant knew them to be so. The evidence does show clearly that the defendant was, and had been for years, a dealer in horses in the city of Chicago; that he had carried on business at many places in the city,—generally, perhaps, m stables in the rear of private residences,—and that he made known his business through advertisements in newspapers. In respect of the sale of this horse, it is shown that Hines was led to the stable in the rear of the residence 3127 State street, wMch was kept by the defendant, by the following advertisement, which appeared in the “CMcago Evening News” of Saturday, June 20, 1885:

“For sale at a bargain—Real nice sorrel driving horse. He is six years old, very stylish and handsome. I will guarantee him to trot a mile in three minutes. He is the property of a lady. The only reason I am offering him for sale is, I am about to leave for Europe. The price is of no consequence as long as he gets a good home. Apply at the residence, 3127 State street.”

Hines, on the 22d of June, went to the place indicated in the advertisement, found the defendant there, who said to the witness, “Do you want to buy a horse ?” The witness replied, “Yes; I know nothing about a horse, but if you will promise that he is a good horse, I would like to buy him. ” The defendant said: “The horse cost $350, but I will sell him for .$150. He belonged to a sister of mine, and her husband died, and she is going to Europe, and you are no horse jockey, and that is the reason I will let you have it.” After the trade had been completed and the horse was léd out, the defendant said, “He’s kind of skittish; you want to be careful of him.” The third day after the sale, and after Hines had twice visited the defendant’s place, without, however, finding him in, Hines met the defendant at a feed store, and said, “I don’t want that horse ; he won’t pull.” To which the defendant responded, “You try that horse again; that horse will work; he’s a good horse; he has been in the stable; he will do everything; he has been in the stable; my sister did not drive him out; he has been in the stable a few days, and that is the reason he is so skittish.” As part of the same conversation, the defendant asked, “What did you try him in ?” and on being told, in a buggy and express wagon, used this language: “That is singular; he always worked for me.” This evidence was received, over the objection of the defendant. It was clearly competent, as tending to show the defendant knew the condition and character of the horse. If he had worked the horse, the defendant must have known he was afflicted with the heaves, was foundered and balky. The evidence satisfies us that a horse afflicted with the heaves, and foundered, and that is balky, to the extent this horse is clearly shown to have been, would so manifest such infirmity as not to escape the attention of an experienced dealer in horses, who was handling and working him; and, moreover, a man who publicly advertises a horse as “a real nice * * * driving horse, ” will be presumed, unless the contrary is shown, to speak from knowledge of the character and qualities of the horse. So, also, a like knowledge was legitimately inferable from the repeated statements of the defendant,—such as, “You try that horse again; that horse will work; he is a good horse; he will do everything.” It is to be observed that none of these representations were in any way guarded, as being upon information. There can be no doubt that the defendant well knew that the representations he made to Hines, and upon which, alone, Hines was induced to part with his money, were false, in fact. The real condition of the horse was, that he had the heaves and was badly foundered ; that he was not a good traveler, was balky, and would not work at all in a buggy or wagon, and was worth not exceeding $15.

It is said, however, that the evidence in respect of the insertion of advertisements in the paper was improperly admitted, it not being shown that the defendant actually procured their insertion. Evidence of the particular advertisement leading to the sale of this horse was clearly competent. It was shown to have led Hines to call at the place designated in the advertisement, where he found the defendant with the sorrel horse mentioned, and at the defendant’s place of business. There, substantially the same things contained in the advertisement were told in respect of • the horse, except that the widowed sister of defendant was about to sail for Europe, instead of the defendant himself. It is manifest that the question of whether the defendant procured the insertion of the advertisement, was one of fact, and could be proved by direct evidence or by circumstances raising that presumption. Tending also to show the knowledge of defendant of the condition of the horse, it is clearly shown that at the time of the trade the horse appeared in good flesh, but the next morning was gaunt, and drawn up, and very thin. Other circumstances are shown, tending at least to raise a strong presumption that the horse had been “doctored.”

It is next insisted, that Hines neither returned the horse nor offered to return him before causing the defendant’s arrest. This, if material, is not correct in fact. The sale was made in the afternoon. The next morning Hines led the horse back to defendant’s place, to return him, but defendant was not there. The next day Hines again called, but failed to find him, and on the third day, Hines and Flannigan went together, and seeing the defendant, followed him to a feed store, when Hines told defendant, “I don’t want the horse; he wont pull. If you take back the horse I will allow you $10 of my money; the horse is no good to me.” And Flannigan also told him the horse would not work, and was foundered. The defendant then made the response before mentioned,—to try the horse again; that he would work; that he was a good horse; that he was good every place. Hines insisted it was no use for him to try. The next day Hines and Flannigan took the horse to the defendant’s place, but could not find him.

It is objected that evidence was improperly admitted tending to show the kind of business in which the defendant was engaged, and his manner of conducting it. The evidence alluded to showed that defendant was in the habit of renting stables in the rear of some first-class house, and advertising horses to sell in the rear, with the directions to inquire of the groom at such number; that the horses advertised were the property of an uncle that had died, or of a lady whose husband had died, who wanted to go to Europe, or that his barn had burned, and that he therefore must sell; and also that the defendant dealt in wind-broken, heavey, crooked and balky horses. The latter evidence, in respect of the kind of horses in which defendant dealt, could not have been objectionable, for the reason that the same witness testified that he dealt in all kinds of horses. So far as the testimony tended to show other offenses, or separate and distinct sales and transactions, it was improper; or, as tending to show that Jackson was in the habit of making false representations, or resorting to fraudulent practices, in the sale of horses, was clearly inadmissible. Such other statements, representations or acts at other times, or as respects other horses, might have been false, without affecting the particular transaction for which the defendant was indicted. (Commonwealth v. Jackson, 132 Mass. 19.) In so far, however, as any of this testimony tended to show that the defendant, by reason of his long business in handling horses, knew this particular horse was not of the character nor in the condition he represented him, it would be competent. But in no event could the defendant have been unduly prejudiced by the admission of this testimony. The competent proof was clearly sufficient to warrant the finding of the court, irrespective of the evidence complained of. In cases where the proof clearly justifies the finding, and it must have been the same had the incompetent evidence not been admitted, the error in its admission will be no ground authorizing a reversal.

“A false pretense is such a fraudulent representation of an existing or past fact, by one who knows it not to be true, as is adapted to induce the person to whom it is made, to part with something of value.” (2 Bishop on Crim. Law, 415.) The representations here made were not matters of opinion, but of fact. A false- pretense may relate to quality, quantity, the nature, or other incident of the article offered for sale, whereby the purchaser, relying on such false representation, is defrauded. It is undoubtedly true that in a negotiation for ■ a sale of property, a statement may be a mere commendation or expression of opinion, by which the seller seeks to enhance the price of the property, and justifiable; but when it is made. and intended as an assertion of a fact material to the negó- ¡ tiation, as a basis on which the sale is to be made, if it be1 false, and is known to the seller to be so, the seller is guilty of the offense, if he thereby induces the buyer to part with his property. Here, the fact as to whether the horse was healthy, whether he was good to work in every way, and a good traveler, were material questions of fact asserted hy the defendant and known by him to be false, and upon which he induced Hines to part with his money. The health and disposition of the animal in the condition represented by the defendant, existed or they did not exist, as a matter of fact. It is apparent that the purchaser was' unacquainted with horses and their diseases, and in fact relied upon the assertion and statements of the defendant as to the character, health and capability of the animal.

We think the offense here charged was clearly established, and finding no error for which the judgment should be reversed, it will be affirmed.

Judgment affirmed.

" Mr.’ Justice Bailet having heard this case in the Appellate Court, took no part in this decision.


source: Caselaw Access Project

author: Mr. Chief Justice Craig

license: Public Domain

text:
    Edward S. McDonald v. The People of the State of Illinois.

      Filed at Ottawa November 16, 1888.

    1 CeimnaIi law—conspiracy—evidence to establish a conspiracy— and herein, of limiting the range of inquiry by bill of particulars. Where the issue is whether a party is guilty of a general conspiracy, distinct overt acts of conspiracy may be given in evidence; and when the issue is whether a party is guilty of a specific overt act of conspiracy, it is competent to give in evidence other overt acts of conspiracy which in-elude, or are dependent upon, or constitute a part of the res gestee; but i* is not admissible to give in evidence a specific overt act wholly disconnected from, and independent of the acts charged, having no other relevancy to each other than that they are overt acts of the same parties.
    ■ 2. In case the prosecution, by order of court, f urnishes a bill of particulars showing the particular transactions relied on to support an indictment for a conspiracy to obtain money by false and. fraudulent pretenses, it "will be limited to proof of the acts or transactions named in such bill of particulars, and it will be error to admit evidence of other and different transactions not inseparably connected with those named, or constituting a part of the res gestee.

    3. So on an indictment for a conspiracy to obtain money of a county by false pretenses, by means of fraudulent bills for work, labor and materials, the prosecution, in obedience to a rule of court, furnished the defense with a bill of particulars, relating to bills for work done and materials furnished for the Normal School. On the trial, the People offered in evidence many other bills for labor and materials for the court house, insane asylum, infirmary and hospital, which the court admitted, over the defendants’ objection : Held, that the court erred in admitting in evidence the bills other than those relating to the Normal School.
    4. In the same case, the defendants asked an instruction, which, among other things, contained the following: “The defendants are not, in this case, charged with conspiring to defraud the county by bribing county commissioners to allow exorbitant and unjust bills, neither are they upon trial for conspiracy to defraud the county in any way, in any transactions other than those relating to the repairs at the Normal .School,”—which was stricken out by the court. There was no other instruction embracing this point: Held, there was error in the modification of the instruction.
    5. Same—accused entitled to a fair and impartial trial. Every person charged with crime is entitled to a fair and impartial trial in conformity to the laws of the State, and it is a duty devolving upon the courts to see that this right, conferred upon every citizen, is upheld and sustained, and not abridged or frittered away. In case of a conviction, if this court is not satisfied, from the record, .that the defendant has had a fair and impartial trial, the judgment will be reversed.
    6. Saids—latitude allowed the prosecution in presenting a case to the jury—departure from a proper line of argument. Much latitude is always allowed counsel in the opening statement or argument of a case to the jury, but there are bounds which ought not to be transcended. As a general rule, a full statement of the facts expected to be proved on the trial, with a statement of the Jaw relied on, would seem to be sufficient.
    7. In this case, the line of argument pursued by the prosecution on the trial is reviewed, and is regarded as such a departure from the usual and proper mode of presenting a case to the jury as to require the reversal of a judgment founded on a verdict of conviction.

      Writ of Error to the Appellate Court for the First District ;—heard in that court on writ of error to the Criminal Court of Cook county; the Hon. Henry M. Shepard, Judge, presiding.
    Mr. C. Beckwith, and Mr. W. S. Forrest, for the plaintiff in error.
    Mr. George Hunt, Attorney General, Mr. Joel M. Longenecker, State’s Attorney, and Messrs. Stiles & Lewis, for the People.
   Mr. Chief Justice Craig

delivered the opinion of the Court:

This was an indictment in the Criminal Court of Cook county, against Nicholas Schneider, William J. McGarigle, Frederick Faber and Edward S. McDonald, in which the defendants were charged with a conspiracy to obtain money from Cook county by false pretenses. The indictment contained several counts, some of which charge a conspiracy to defraud the county by means of false pretenses, generally, while others charge a conspiracy to defraud the county with respect to repairs at the Normal School. At the June term, 1887, of the Criminal Court, McGarigle and McDonald were tried, jointly, before a jury. The two other defendants, Schneider and Faber, were not put upon trial, but were used as witnesses by the People against McGarigle and McDonald. The jury found the two defendants guilty, and fixed their term of imprisonment at three years in the penitentiary. Edward S. McDonald alone sued out this writ of error.

Various errors have been assigned, and elaborate arguments have been filed in behalf both of the defendant and the People. We shall not, however, undertake to follow counsel, and consider all the questions raised, but will content ourselves with the consideration of a few questions which are decisive of the judgments rendered both in the trial and Appellate courts.

Every person charged with a crime is entitled to a fair and impartial trial,—a trial in conformity to the laws of the State, —and it is a duty resting upon the courts to see that this guaranty conferred by the laws upon every citizen, is upheld and sustained. A fair and impartial administration of the laws is one of the most sacred rights of the citizen,—one that can not be abridged or frittered away. In looking over the record before us, we are not satisfied that the defendant, McDonald, had a fair and impartial trial in the Criminal Court. Improper evidence was admitted, the instructions to the jury did not lay down the law correctly, and other irregularities occurred during the trial, which doubtless led to the verdict returned by the jury. Under the last head may be mentioned the opening statement of the case to the jury made by the counsel for the People. Much latitude is always allowed counsel in the statement or argument of a case to a jury, but there are bounds which ought not to be transcended. As a general rule, a full statement of the facts expected to be proven on the trial, with a statement of the law relied upon, would seem to be sufficient;' but here, the court ruled that counsel for the People might elect the manner in which to make his opening. He was allowed to talk about the “boodle prosecutions in Hew York City,” to discuss and explain to the jury the meaning and office of an “exception” entered by counsel for defendant. Among other things, it was said “that the object of taking exceptions wras to get error in the record; that everything said is taken down by the stenographers; that in case the defendants are found guilty, they have a right to take an appeal to the Supreme Court; that the whole record goes up to the Supreme Court; that if the judge has made a remark which he ought not to have made, and which, very likely, he has, those seven wise men down at Ottawa, if it shall appear to them that any remark was made which might have prejudiced the cause of these gentlemen who have been found guilty, will consider whether or not they will grant them a new trial; that errors may be run all through the case.” The counsel for the People also informed the jury that the law had been so changed that any defendant might testify in his own behalf. Objection being made to this statement, and overruled, counsel then said: “There is another exception. The court thinks I am right, or he would tell me to vary my line of argument.” The jury were also told that the defendants had applied for a change of venue to another county, and the application for a change was commented upon at length. Other matters wholly foreign were stated and argued to the jury. Indeed, full liberty was given counsel' for the People, by the court, to make any statement he saw proper to make, whether it had any legitimate bearing on the case or not. The' manner in which legal proceedings are required to be conducted, under the laws, was ridiculed at great length by counsel for the People, with the sanction and approval of- the court.

It is a proposition too plain to admit of argument, that the jury had nothing to do with the force or effect or the office of an exception that might be taken by counsel during the trial; nor could they take into consideration the fact, if it was a fact, that the defendants had applied for a change of venue; nor was' it material for them to know that the law had been so changed that a defendant might testify in his own behalf; and ' it is plain that the court ought not to have permitted the attorney for the People to bring these matters before the jury in the opening statement. In State v. King, 64 Mo. 595, where the jury were told, in the argument, that if they wronged the defendant by finding him guilty, that wrong can be righted by ' an appeal by the defendant to the Supreme Court, the remark was held to be error. It is there said: “The statements that the higher court referred to had the power to review; the finding of the jury on the weight of evidence, was calculated to induce the jury to disregard their responsibility.”

Our statute, which allows a defendant in a criminal case to testify, declares, that “his neglect to testify shall not create any presumption against him, nor shall the court permit any reference or comment to be made to or upon such neglect.” Under this statute, why was the attorney of the People allowed to comment, before the jury, on the right of the defendants to testify in the case ?

In State v. Smith, 75 N. C. 307, a judgment wherein a defendant was convicted, was reversed upon the ground, alone, that the attorney for the People was allowed, in addressing the jury, to state that “the defendant was such a scoundrel he was compelled to move his trial from Jones county to a county where he was not known.” And yet, in this case, counsel for the People was permitted to argue, at great length, upon the fact that the defendants had applied for a change of venue, and the, application had been denied.

The defendants were charged with a crime which was a violation of the laws of the State. They were on trial under the laws of the State. The inquiry is a pertinent one, why the laws of the State, under which criminals are tried, were permitted to be ridiculed in the opening argument to the jury. What the object of counsel was in pursuing the course that was pursued, may be difficult to understand; but whatever may have been the object, the effect of what was done, without doubt, created a prejudice in the minds of the jury, and may have, in part, at least, led to the verdict which was rendered.

Again, in the closing argument to the jury on behalf of the People, counsel were allowed to travel outside of the record, and discuss M. C. McDonald, and his influence in the administration of justice in Chicago. Among other things, the State’s attorney said: “They say there is a fabled tree, which grows in some torrid clime; that the birds of the air which fly near its branches, influenced by the aroma of it, fall beneath it and die. That is the influence of M. C. McDonald in this and all matters connected with the administration of justice.” Other allusions of a similar character were made, in the argument, to the same person. He was in no manner connected with the case, and upon objection being made, it was the duty of the court to confine the argument to a consideration of such matters as properly pertained to the case, under the evidence. The People v. Mitchell, 62 Cal. 411; Union Central Life Ins. Co. v. Cheever, 36 Ohio, 201; Rolfe v. Inhabitants of Rumford, 66 Maine, 564.

The indictment contained six counts, but the State’s attorney dismissed the fifth count out of the case-. The first four counts charged the defendants, in general terms, with a conspiracy to defraud Cook county by means of false pretenses. The last count charged a conspiracy to defraud Cook county by means of false pretenses as to work done and materials furnished at the Normal School, in 1886. Before the cause was called for trial, the defendant filed a motion in writing, requesting the court to enter an order requiring the State’s attorney to file a bill of particulars. After due consideration the court granted the order, and in response thereto, the State’s attorney filed what is known in the record as the original bill of particulars. The bill of particulars thus filed did not, however, prove to be satisfactory to the defendant. It was but little more definite or specific, as to the character of the charge, than the indictment. The defendant then filed a petition for a further and better bill of particulars, which, upon due consideration, the court granted, and entered an order requiring the State’s attorney to furnish defendant, McDonald, a further and better bill of particulars. In the order, the State’s attorney was required “to furnish the defendant, McDonald, the date and number of" all bills, vouchers or warrants which are relied upon by the Peojole, and which have been on file in any county office, and which have been in the possession of the State’s attorney ; and also that the said People permit the inspection of the said bills, vouchers and warrants by the attorneys for said Edward S. McDonald, or some of such attorneys; also, that said People furnish the. defendant, Edward S. McDonald, the dates between which the work or labor done or pretended to be done, was done or pretended to be done; also, that the State’s attorney permit the defendant, McDonald, and his counsel, to examine and inspect any books which the State’s attorney claims were kept in pursuance of the conspiracy charged in the indictment.”

The amended bill of particulars furnished McDonald is as follows: •

“1. The dates between which the labor was done or pretended to have been done, and the material furnished or pretended to have been furnished, by said Nicholas Schneider, as set forth in the bill of particulars heretofore furnished said defendants, McGarigle and Edward S. McDonald, are January 1,1886, until January 1,1887.
“2. The dates and numbers of bills that are relied upon, are No. 7, August 2, 1886; No. 9, August 9, 1886; No. 12, August 16, 1886; No. 13, September 4, 1886; No. 15, September 13, 1886; No. 18, September 20, 1886; No. 23, October 2, 1886; No. 26, October 9, 1886; No. 27, October 16, 1886; No. 31, November 1, 1886; No. 36, November 8, 1886; No. 40, November 20, 1886.
Julius S. Grinnell, State’s Att'y.”

The order of the court under which the last bill of particulars was furnished, is plain, and can not be misunderstood. The dates and numbers of all fraudulent bills, vouchers or warrants relied upon by the People to secure a conviction, by the order were to be furnished by the State’s attorney to the defendant. The order of the court was obeyed, and a list of the fraudulent bills which were to be relied upon on the trial to secure a conviction, was submitted to the defendant. The bills relied upon were twelve in number, the first bearing date August 2,1886, and the last, November 20, of the same year. They all related to services performed and materials furnished at the Normal School. Under the bill of particulars which had been furnished, it was contended, on the trial, by the defendant, that the evidence should be confined to the Normal School transactions ; but this position was overruled by the court, and the People were allowed to introduce evidence of fraudulent bills for services rendered and materials furnished at the court house, insane asylum, infirmary and the,hospital. Some twenty-nine of Schneider’s bills, relating solely to these places, were introduced in evidence to establish the charge of conspiracy to defraud' Cook county in rendering fraudulent bills for services rendered and materials furnished at the Normal School, as stated in the bill of particulars.

The ruling of the court on the admission of this evidence presents a question of importance, and one, too, not entirely free from difficulty. Where the charge in the indictment is a general one, as is usually the case in an indictment of this character, it is a matter of great importance to a defendant to obtain a bill of particulars, in order that he may know, specifically, what he will be required to meet on the trial. If, however, after a bill of particulars has been furnished, the evidence to establish a conviction is not confined to the specifications therein, what benefit is to be derived from a bill of particulars ? Where is the necessity for an order of court requiring a bill of particulars? Commonwealth v. Snelling, 15 Pick. 326, is an interesting case on the subject. The defendant was indicted for a libel on the character of one Benjamin Whitman, a justice of the police court, charging him, in various forms, but in general terms, with misconduct and malpractice in the discharge of the duties of his office. Prior to the coming on of the trial, the defendant was required by the court to state whether he intended to offer proof of the truth of the misconduct charged in the publications alleged to be libelous, and if so, to file specifications of the cases and instances of misconduct intended to be given in evidence, and on the trial the defendant was prohibited from giving evidence of the truth of the supposed libel, except according to the specifications so filed. The order of the trial court was fully sustained, and upon one branch of the question the court said: “And in regard to another exception, namely, that the defendant having, in his bill of particulars, specified certain cases, and added the words, ‘and others,’ was prohibited from going into evidence of cases not otherwise specified. All the reasons which require a specification, require that the defendant should be confined to the cases specified, otherwise the purpose of the order would be wholly defeated.”

In The People v. McKinney, 10 Mich. 54, which was an indictment for embezzlement, in speaking of the office of a bill of particulars, the court said: “The particulars called for, if furnished, would not have constituted strictly a part of the information, nor any part of the record proper. It would not have constituted the charges upon which the defendant was to be tried, as the defendants seem to suppose. Its only purpose and effect are to inform the defendant of the nature of the evidence and the particular transactions to be proved under the information, and to limit the evidence to the items and transactions stated in the particulars.”

Regina v. Esdaile et al. 1 F. & F. 213, was an information for conspiracy. Prior to the trial, bills of particulars having been delivered under an order of court, and evidence of transactions not named therein having been offered and rejected, the court held, “that particulars having been ordered of overt acts, the counsel for the Crown were confined within them.” See, also, Commonwealth v. Davis, 11 Pick. 434.

A leading case on the question is Commonwealth v. Giles, 1 Gray, 468. The defendant was indicted as a common seller of spirituous and intoxicating liquors. Before the trial, defendant, upon his motion, had been furnished, by order of the court, with a list specifying the names of the persons to whom sales would be proved. At the trial, the district attorney offered evidence of other sales to persons not named in the -specification. The evidence was admitted against the objection of the defendant. The Supreme Court, in passing upon this question, said: “It is now a general rule, perfectly well established, that in all legal proceedings, civil and criminal, bills of particulars, or specifications of facts, may and will be ordered by the court whenever it is satisfied that there is danger that otherwise a party may be deprived of his rights, or that justice can not be done.” The court then discusses the question whether the order of court granting a bill of particulars is final, inclining to the view that it is. The court then said: “But whether this be so or not, when it is once made, it concludes the rights of all parties who are to be affected by it; and he who has furnished a bill of particulars under it, must be confined to the particulars he has specified, as closely and effectually as if they constituted essential allegations in a special declaration.”

‘.‘The evidence, therefore, of sales not mentioned in the list which was furnished to the defendant in the present case, was inadmissible, and should have been rejected. The particular purpose for which it was allowed to be adduced, scarcely, if at all, limiting or diminishing its general force and effect, constituted no exception to the general rule, and afforded no sufficient or legal reason for disregarding it. ”

The court of last resort in New York, in Starkweather v. Kettle, 17 Wend. 21, in speaking of a bill of particulars, said:“The declaration, plea, or notice of set-off, may be so general in its terms that the opposite party will not be fully apprised of the demand which will be set up on the trial, and he is therefore permitted to call on his adversary to give a more detailed and particular statement of the claims on which he intends to rely. When the bill is furnished, it is deemed a part of the declaration, plea or notice to which it relates, and is construed in the same way as though it had originally been incorporated in it.”

It will be observed that in the last case cited, the court treats a bill of particulars, when furnished, as a part of the declaration, plea or notice to which it relates, while in the Giles case it is said, he who furnishes a bill of particulars must be confined to the particulars as closely as if they constituted essential allegations in a special declaration, and the evidence was confined strictly to the bill of particulars. It will also be observed, that in the case of The People v. McKinney, supra, the court seems to take a slightly different view of the office of a bill of particulars, and says it does not constitute a part of the record, but its office is to inform the defendant of the nature of the evidence, and the particular transactions to be proved. These different expressions in the authorities are more formal than otherwise. The object of a bill of particulars is to give the accused notice of the specific charge he is required to meet on the trial, so that he may be prepared to defend. Here, the State’s attorney, had he seen proper, might have given notice, in the bill of particulars, that fraudulent bills for labor and materials had been presented by Schneider, relating to the court house, insane asylum, infirmary and the hospital, specifying the date and amount in each case. Then the evidence relating to the lulls at these various institutions might have been properly admitted; but he saw proper to limit the charge to twelve specific bills for labor and materials on the Normal School. Having done this, under the plainest principles of law relating to the admission of evidence under an averment in a pleading,—treating the bill of particulars as a pleading,—the evidence ought to have been confined to the twelve bills specified in the bill of particulars, otherwise the bill of particulars was a delusion—a legal snare—furnished for the purpose of deceiving the defendants. It is not claimed that the act of presenting Normal School bills was connected with the presentation of the other bills in such a manner that they were, on that account, inseparable; nor was such the case. The bills of the different county institutions, and fraudulent pretenses relating thereto, had no immediate or direct connection with each other. In order to establish a conspiracy on the part of the defendants in regard to the work and materials on the Normal School, it was not necessary to prove that Schneider had presented fraudulent bills as to work and materials furnished at the court house, insane asylum, infirmary and hospital, and it was erroneous to allow such evidence to go to the jury. The effect of the bill of particulars furnished by the State’s attorney under the order of the court, was to narrow the issue to the fraudulent bills relating to the Normal School, and, as a necessary consequence, exclude all evidence of a conspiracy to obtain money from Cook county, except as to the bills for labor and materials furnished on the Normal School.

We are not unmindful that it is competent, when the issue is whether a party is guilty of a general conspiracy, distinct overt acts of conspiracy may be given in evidence, and that when the issue is whether a party is guilty of a specific overt act of conspiracy, it is competent to give in evidence other overt acts of conspiracy which include or are dependent upon or constitute a part of the res gestee of that' act; but it has never been held admissible to give in evidence to prove a specified overt act, wholly disconnected and independent overt acts having no other relevancy to each other than that they are overt acts of the same parties.

What was said in the case of Ochs et al. v. The People, 124 Ill. 399, in regard to the admission of evidence, has n'o application to the facts of this ease. There, the defendants were charged with a conspiracy to obtain money from Cook county by means of false pretenses. The indictment contained five counts, but the State’s attorney elected to proceed under the first four counts of the indictment, which were, in substance, as follows: The first charges that the defendants and others, on November 1,1885, etc., feloniously conspired together, with the fraudulent and malicious intent then and there feloniously, wrongfully and wickedly, by divers false pretenses, and with indirect means, to cheat and defraud said county of Cook of its moneys, etc. The second count charges a conspiracy to obtain the moneys and property of Cook county by false pretenses, and to cheat and defraud the county, and that in pursuance of the conspiracy they did obtain large amounts of goods, moneys, etc., of the value of $100,000, of the county, by false pretenses. The third and fourth counts charge a conspiracy between the parties to obtain from the county, by false pretenses, divers large sums of money, of the value of $100,000. It will be observed that the charges in the indictment are of a general character. What particular pretenses were resorted to is not charged. Under such charges in an indictment, the evidence, as it did on the trial of the cause, might take a wide range; but in the case under consideration, the charge, as heretofore shown, having been limited, what may have been said in the Ochs case in reference to the admission of evidence can have no bearing here.

In the fifteenth instruction for the prosecution, the jury were told “that any evidence which has been admitted by the court in the presence of the jury is for the consideration of the jury, and should be considered by them in making up their verdict.” In quite a number of the instructions given at the instance of the People, the jury were instructed that they should find the defendants guilty, if they believed, from the evidence, beyond a reasonable doubt, that they were guilty “as charged in the indictment.” These instructions wholly ignored any restrictions placed upon the general charge contained in the indictment by the bill of particulars which was furnished the defendants, and by these instructions, thus wholly unqualified, the jury were left at perfect liberty to find the defendants guilty of a conspiracy to obtain money by false pretenses, by means of either false and fraudulent court house bills, hospital bills, asylum bills, infirmary bills or Normal School hills.

Twenty instructions were given by the court on behalf of the People. In no one of these instructions was the jury directed to acquit the defendants unless they found them guilty of the Normal School conspiracy,—the conspiracy for which they were placed upon trial. In order to meet this difficulty, and place that question in a proper light before the jury, the defendants’ counsel prepared instruction No. 2, which, among other things, contained the following: “The defendants are not, in this case, charged with conspiring to defraud the county by bribing county commissioners to allow exorbitant and unjust bills. Neither are they upon trial for conspiracy to defraud the county in any way, in any transactions other than those relating to the repairs at the Normal School, undertaken by Nicholas Schneider.” This part of the instruction was stricken out by the court, and, as modified, the instruction was then given to the jury. As that part of the instruction stricken out by the court was not embraced in any other instruction, we think the modification was erroneous. Under the bill of particulars furnished by the People, the only conspiracy involved on the trial, related to the materials furnished and repairs done by Schneider at the Normal School, and the defendants had the right to have the jury so instructed. As has been said before, much evidence in regard to fraudulent transactions had been introduced, relating solely to labor and materials at the court house, insane asylum, infirmary and hospital. This evidence being before the jury, they were as likely to convict the defendants of a conspiracy in regard to repairs at one of those institutions as they were in regard to the repairs at the Normal School, unless they were instructed by the court that the defendants were not on trial for conspiracy to defraud Cook county" in any transactions other than those relating to the Normal School. How could the jury know upon which one of the five transactions relating to the five county institutions they were authorized to return a verdict, unless directed by the court in the instructions ? It is apparent the jury were left entirely in the dark upon this question, and for aught that appears, the jury may have been satisfied that no conspiracy was established in regard to the repairs for which bills were rendered in reference to the Normal School, and yet found the defendants guilty as to some one of the other institutions,—an offense for which they were not on trial.

The manner in which the case was submitted to the jury by the instructions, leaves it impossible to determine whether the defendant was convicted of the offense upon which he was put upon trial, or for some other or different offense. We are not prepared to hold that a conviction of this character can be sustained. The modification of the instruction was, in our judgment, erroneous, and that, too, in a vital point in the case.

It is claimed that other irregularities and errors occurred on the trial, which led to the conviction of the defendant, but it will serve no useful purpose to consider them here.

We are satisfied that the defendant was not tried in conformity to law, and for the errors indicated, the judgments of the Appellate and Criminal Courts will be reversed, and the cause remanded fpr another trial.

Judgment reversed.

Mr. Justice Mageudee : I do not concur in this decision. Not having time to prepare a dissenting opinion I refer to the opinion of Mr. Justice Moban of the Appellate Court (25 Appellate Ct. Rep. 350,) as expressing the views of the case, which seem to me to be correct.

Mr. Justice Bailey having passed upon this ease in .the Appellate Court, took no part in its consideration here.


author: Mr. Justice Shops

text:
    Lionel W. Richardson v. William H. Gregory.

      Filed at Ottawa November 15, 1888.

    1. Partnership — dissolution—what will constitute a dissolution. "Where partners, by mutual consent, cease to do business, and divide the partnership property, this will amount to a dissolution, as much so as if done by an express agreement to that effect.
    2. The fact that there are mistakes and errors in stating a partnership account, does not militate against the conclusion that the business of the firm had been closed and the partnership dissolved by mutual consent. A dissolution will not necessarily depend upon a settlement between the partners. The power to close up the partnership accounts would still continue.
    3. Same—relative rights after dissolution—in respect to a patent right owned by one of the partners. The owner of a patent, before its issue, formed a partnership with another party for manufacturing under the patent, the latter to furnish the capital, each to share equally in the expenses, and the patentee to receive nine-sixteenths of the profits, and the remaining seven-sixteenths to go to the other partner. The contract of partnership provided that the patentee should “not deprive or permit the other partner to be deprived of his full share, or seven-sixteenths, of said patent right, but the same shall at all times be had and used to their mutual benefit and advantage during the continuance of said co-partnership.” Before the expiration of the patent, by mutual consent, the firm was dissolved: Held, that after the dissolution the interest of the firm in the patent right no longer existed.
    4. Limitations — bill in equity for an accounting—as between partners—cmd herein, when the statute begins to run. There being in matters of account concurrent jurisdiction at law and in equity, a court of equity, on bill by partners for an accounting, will apply the same period of limitation prescribed by the statute for barring actions of account in courts of law,—that is, five years.
    5. On bill for an accounting as between partners, the Statute of Limitations will begin to run from the time of the dissolution of the partnership.
    6. If errors have been committed in the settlement of a partnership account, the party complaining should file his bill in equity for their correction within a reasonable time. If he waits for seven years after knowledge of the error before attempting to assert his rights, he will be guilty of such a want of ordinary and reasonable diligence as to bar him from seeking relief in a court of equity.

      Appeal from the Appellate Court for the Second District;— heard in that court on appeal from the Circuit Court of Winnebago county; the Hon. O. H. Horton, Judge, presiding.
    Messrs. Marshall & Taggart, for the appellant,
    contended that there were errors and mistakes in the so-called settlement of the partnership account, and that all the assets of the firm were not divided, and consequently there was no dissolution.
    As between partners, the Statute of Limitations does not commence to run until the final dissolution of the firm.
    Mr. William Lathrop, for the appellee:
    The settlement and division of property May 15, 1878, certainly ended the co-partnership, if it can be said to have continued until that time. The partnership in any business shall cease when there is an end put to the business itself. (Spurck v. Leonard, 9 Bradw. 174.) The same rule, in the same words, is adopted from Kent by the Supreme Court in Bank of Montreal v. Page, 98 Ill. 119. The same doctrine is laid down in Story on Partnership, secs. 266, 267.
    All partnerships are dissolved by the mutual pleasure of the partners. Story on Partnership, sec. 268.
    A partnership is presumed to be dissolved from the time “each partner, separately, is engaging in business, and acting for his own sole account.” Story on Partnership, sec. 272.
    The neglect or refusal- to carry on a co-partnership is a dissolution. Ligare v. Peacock, 109 Ill. 94.
    From the date of the settlement and division of May 15, 1878, the five years’ limitation applied.
    A bill for an account by one partner against another is barred by the lapse of five years from the dissolution of the firm. Pierce v. McClellan, 93 Ill. 245; Quayle v. Guild, 91 id. 378; Askew v. Springer, 111 id. 662; Bonney v. Stoughton, 18 Bradw. 562; 2 Bindley on Partnership, 963.
    To an action for an account of partnership dealings and transactions, an account thereof already stated between the parties, affords a good defense. 2 Bindley on Partnership, 967; Story’s Eq. PI. secs. 798, 800; Story’s Eq. Jur. sec. 523.
   Mr. Justice Shops

delivered the opinion of the Court:

This was a bill filed by appellant, against appellee, for an accounting between them, as partners. On the hearing, the circuit court .dismissed the hill. On appeal to the Appellate Court the decree of the circuit court was affirmed, and this further appeal is prosecuted therefrom.

The partnership, under the firm name of Richardson & Gregory, was entered into June 23, 1870, for the manufacture and sale of plows, to be manufactured under certain devices for which Richardson had applied for a patent, and for the sale to others license to manufacture thereunder. The patent was not then issued, but in contemplation of its issue the partnership was formed, commencing the date above mentioned, and to continue for the life of the patent, unless sooner dissolved by mutual consent. Gregory was to furnish capital not to exceed $10,000, as the same should he required, and was to be repaid with interest at ten per cent. Each party was to devote himself to the business of the firm and in promoting its interests, and were to share the expenses equally,— the profits, Richardson, nine-sixteenths, and Gregory, seven-sixteenths. Books were to -be kept, and settlements had between the partners on the first days of June and November of each year. The stipulation in respect of the patent was, that Richardson “shall not deprive or permit Gregory to be deprived of his full share, or seven-sixteenths, of said patent right, but the same shall, 'at all times, be had and used to their mutual benefit and advantage during the continuance of said co-partnership.” The bill alleges that divers sums of money belonging to the firm came to the hands of Gregory, for which he fails and refuses to account, etc., and seeks an accounting and settlement of the partnership affairs.

The answer, after admitting the partnership, sets up that the firm ceased doing business in manufacturing and selling plows, in January, 1873; that they then licensed one Thompson to manufacture under said patent, the license to determine when the licensee ceased to manufacture thereunder; that Thompson entirely ceased in 1876, and that no business of any kind has been done or prosecuted by the firm since said date, except the collection of outstanding accounts, and avers that long prior to June, 1877, the firm had entirely ceased to do business, without any intention to renew or farther prosecute the same; avers that in the spring of 1877 a full settlement was had of all partnership matters, and on review thereof in May, 1878, a final and complete settlement of all matters pertaining to the partnership or its business was had, the entire assets of the firm divided between the co-partners, and the partnership dissolved, x The Statute of Limitations is set up and relied upon as a bar to the relief sought by the bill.

The questions presented are mainly of fact, as to the alleged settlement and dissolution of the firm. Appellant denies that there ever was a settlement of the partnership affairs, or that the co-partnership was ever terminated by mutual consent, but subsisted until a few months prior to the filing of his bill, by the terms of the contract of co-partnership,—that is, until the expiration of the patent mentioned. The testimony offered upon the issue was that of appellant and appellee, corroborated to a greater or less degree by memoranda and documentary evidence.

There is no controversy over the facts that the firm did a considerable business from the time of " its organization to January, 1873, when it ceased to manufacture, and licensed Thompson, or that from that time until Thompson quit manufacturing under the license, in 1875 or 1876, the firm did no business except to sell its stock on hand, collect in its outstanding indebtedness, and collect royalty from Thompson; or that since Thompson ceased manufacturing under said license, the firm have been engaged, in no way, in carrying on the business contemplated by the articles of co-partnership, save only the attempt to collect a balance of outstanding indebtedness owing to the firm for products previously sold. It is also conceded that there was an attempt to settle the partnership affairs on and prior to the 15th day of May, 1878, which, on that day, resulted, as testified to by appellant, in a division between the parties, of the assets of the firm. He testifies that on that day “we divided whatever assets there were found in the company. They were principally in notes, a portion of which I took, and a portion went to hifii. There‘was a list of them all—a list of what each took. The books were present. There were some old plows * * * returned by agents. I took the plows. He took the letter press. I took the plow press. There was a lease of college land. That was divided or arranged previously. I don’t think of anything more.” Nor is it now contended that there were other assets of the firm than those divided. He also testifies that they were ten days—perhaps twice that—in looking over the partnership affairs at that time, and says: “There was what purported to be a balance struck; that was what we were attempting to do. If there had been no errors it would have been a settlement up to date.”

When the lists testified to are produced, it is found they have the following heading: “Statement of division of R. & G. assets on settlement, May 15, 1878, and settlement of account to date.” Then first follows'statement, viz:

Then follows, under heading: “L. W. Richardson ree’d payments as follows“A list of notes and accounts, including the individual note of Richardson for a small sum, and his account to the firm of $2965.93, and Gregory’s note at ninety days for balance of $44.89, and footing up $7626.66, to which is appended the following receipt:

“Received these notes and bills on settlement with R. & G. this 15th May, 1878.
R. w. Richardson.”

A like list, under similar heading, and covered by a like receipt signed by Gregory, then follows, showing the receipt by Gregory of the amount due him to balance account, $3361.57, and for dividend, $5931.86.

Appellee testifies that they commenced to settle in 1877, and reached a basis of settlement; that in the spring of 1878 they reviewed, and reached a final and-complete settlement of all partnership affairs May 15, 1878. “It was,” he says, “a full and final settlement of the entire old business of the firm, and was so understood, and the assets were completely divided.” In this he is corroborated by the foregoing facts, and we think the circuit court was fully warranted in finding that the affairs of the partnership were closed May 15, 1878. For over five years the business for which the partnership had been formed had. been abandoned by mutual consent. The only license issued had expired, and it is not pretended that others could have been issued, or that it was contemplated that the business should, in any way or at any time, be resumed.

It is true, appellant insists there were errors to his prejudice in the settlement, and it is shown that from about June, 1878, to June 15, 1880,—the date of the last communication from appellee upon the subject,—he was endeavoring to have these alleged errors corrected. That, however, in no way militates against the conclusion that the business of the firm had been closed, and the co-partnership dissolved by mutual consent. The dissolution would not necessarily depend upon the settlement between the partners. The power to close up the partnership would necessarily continue. (Story on Partnership, sec. 328.) If errors existed in .the settlement, there was nothing to prevent appellant’s applying to a court of equity for their correction if his remedy at law was not complete, and, upon proper bill, filed in apt time, relief could have been given by a just re-statement of the account. It is apparent that he knew of every error now claimed, in 1879, and probably in June, 1878. Aside from the fact that the bill is not framed on that theory, he has not shown the exercise of such ordinary and reasonable diligence, after the lapse of seven years after knowledge of the error before attempting to assert his right, as will call into activity a court of equity.

Both parties treated the partnership as at an end. Bach was to devote his time and energies to the business of the firm, and yet, after. 1877, and practically from 1873, each sought other employment, and both have been engaged exclusively in other avocations. By mutual consent and acquiescence, the purpose to manufacture and sell plows was abandoned early in 1873, and all business relating to the partnership, except the adjustment of their accounts, ceased in 1877, and even that terminated finally, May 15, 1878. The parties might terminate the partnership at their pleasure. (Collier on Partnership, sec. 119 ; Parsons on Partnership, 385.) The conclusion, from the facts, seems irresistible, that the business of the partnership was terminated, not only by the acts of the partners, but by mutual consent, prior to May 15,1878. This would as effectually dissolve the co-partnership as could be done »by an express agreement to that effect. 3 Kent’s Com. p. 52; Ligare v. Peacock, 109 Ill. 94; Bank of Montreal v. Page, 98 id. 119.

There being, in matters of account, concurrent jurisdiction at law and in equity, courts of equity, in bills for account, apply the same period of limitation prescribed by the statute for barring actions of account in courts of common law. Actions of account are barred in five years. 1 Story’s Bq. Jur. sec. 529; Hancock v. Harper, 86 Ill. 445; Quayle v. Guild et al. 91 id. 378; Bonney v. Stoughton et al. 122 id. 541. It follows, that more than five years having elapsed between the dissolution of the firm and the filing of the bill in this cause, the Statute of Limitations constituted a perfect defense, unless something is shown to remove the bar, or take the case out of the operation of the statute.

It is said that there was not a final division of the assets between the partners, and no dissolution of the firm, because the patent was not included in the distribution of assets, and remains undisposed of. Appellee testifies that the patent was regarded as wholly worthless, having been “superseded by others,” and for that reason “no account was made of it.” There is nothing in the agreement of co-partnership requiring its assignment by Richardson to the firm, or that it, should become, in any way, a firm asset, unless the co-partnership should continue for the full period covered" by the patent. When the co-partnership ceased, as will be seen from the extract from the agreement before given, Richardson’s covenant to assure to Gregory seven-sixteenths of the patent during the' continuance of the co-partnership, was fulfilled, and the right of Gregory to the patent, or the use thereof, ceased. At the time of the settlement, the dissolution having taken place by the consent and acquiescence of the parties, the firm retained no interest in the patent.

We perceive no error in this record, and the judgment of the Appellate Court will be affirmed.

Judgment affirmed.

Mr. Justice Baker took no part in the consideration of this case in this court, he having participated in the decision made in the Appellate Court.