author: Mr. Justice Scott

text:
      Joseph C. Mackin v. The People of the State of Illinois.

      Filed at Ottawa November 14, 1885.

    1. Obiminal law—special grand jury—presumption that it was properly ordered. Where a venire is ordered by the court for a special grand jury, in the absence of anything in the record showing the contrary it will be presumed that the special facts and circumstances of the case justified the action of the court.
    2. Same—as to the manner of finding an indictment—presumption. Where the record is silent as to whether an indictment for perjury was found upon the information of the grand jurors, without other testimony, or upon the testimony of .witnesses, it will be presumed it was found in the manner the law directs.
    3. Same—perjury upon testimony of witness who waives his privilege not to criminate himself. If the answers of a witness to questions put to him by a grand jury, would have the effect of disclosing criminal conduct on his part, he may claim his privilege and decline to answer, and his refusal can not form the basis of any prosecution against him; but if he does not avail of his privilege, and submits to answer, he must testify with as much truth and candor as in other cases; and if his testimony is willfully false, perjury may be assigned upon it.
    4. Same—as to materiality of testimony upon which perjury is assigned. On the trial of one for perjury for giving false testimony before a grand jury upon an inquiry as to the commission of a supposed crime, and the persons implicated in its perpetration, it is not necessary for the prosecution to prove that the crime had been actually committed in respect of which he falsely testified, in order to show that his testimony was material.
    5. The testimony of a witness upon which an indictment for perjury is based, must have been material to the matter then being investigated or point in question before a tribunal or body authorized by law to investigate, and it devolves upon the prosecution not only to affirmatively so state, but also to show its materiality.
    6. On an investigation before a grand jury of an alleged crime, any testimony tending to establish either that such crime was in fact committed, or that it had not been committed, is material, and perjury may be assigned upon the testimony of a witness before that body which is willfully false in respect to any fact tending to establish or disprove the commission of such crime.

      7. On an investigation by a grand jury of an alleged criminal offence, namely, the corruption of the election returns of a certain precinct by changing the ballots after their return, and substituting in their place spurious ones, it is material to inquire into the fact of the engraving and printing of spurious ballots, and the fact of any conspiracy to make a criminal use of them; and to ascertain if any such conspiracy was formed, it is material to inquire who ordered the engraving and printing of such ballots, and who received them, and what disposition was made of them. And where a witness before the grand jury falsely denied that he ordered the engraving and printing of such ballots, and that he received the same, it was held, that his testimony was upon material points and matters involved in the inquiry before the grand jury.
    8. Same—perjury upon general answer to question assuming several facts, some of which do not exist. If a witness undertakes to answer a question involving several facts, although some of them are incorrectly assumed by the question, this will not justify him in answering the same in the negative, there being other facts which are therein correctly assumed to exist. In such case he should state the truth of the matters inquired of him.
    9. Same—perjury—quantum of proof to convict. The law, as it now obtains, does not make it necessary to a conviction for perjury that two witnesses shall disprove the fact sworn to by the defendant. If any material circumstance be proved by other witnesses in confirmation of the witness giving the direct evidence of the perjury, it may turn the scale, and warrant a conviction.
    10. Same—reasonable doubt—giving the rule in instructions. While it is true, that upon such evidence the jury must find the guilt of the accused beyond a reasonable doubt, yet it is not necessary to state in every instruction the degree or quantity of evidence indispensable to a conviction for perjury, nor to state the rule of evidence in such cases, in connection with the usual formula that no conviction can be had unless the accused is proven guilty j>eyond a reasonable doubt. It may be stated in a separate instruction if the accused desires to have the jury so instructed.
    11. Juror—ground of objection known before acceptance. A motion for a new trial in a criminal case was based on one, among other grounds, that one of the jurors trying the case was of unsound mind. It did not appear, by affidavit or otherwise, but that the mental condition of the juror was as well known to the defendant or his counsel before he was accepted, as afterward: Held, that this of itself was a sufficient reason for overruling the motion.
    Writ of Error to the Criminal Court of Cook county; the Hon. T. A. Moran, Judge, presiding.

      This was an indictment against plaintiff in error, charging him with the crime of perjury. A trial was had, resulting in a verdict finding him guilty, and fixing his punishment at five years’ imprisonment in the penitentiary. A motion for a new trial was made and overruled, and judgment entered on the verdict, and exceptions taken in due form. The other material facts appear in the opinion of the court.
    Mr. John G. Richberg, for the plaintiff in error:
    Plaintiff in error could not legally be required to testify before the grand jury, if he was charged -with the. alleged crime they were investigating. That body can hear only one side. Nor could he be summoned to testify before the grand jury, if'he was a witness for the defence.
    The grand jury, of their own knowledge, could not proceed against or indict a witness by them summoned. The statute requires that “in all complaints exhibited before the grand jury of any county, they shall hear the witnesses on behalf of the People only.” Rev. Stat. 1874, chap. 38, sec. 406; Rev. Stat. 1845, p. 186, sec. 187.
    The foreman is empowered only to swear witnesses on behalf of the People. An oath administered by him to any one not a witness for the People, is of no binding force, and perjury can not be assigned on the testimony of such a witness.
    Before an indictment for perjury can be found, at least two witnesses to the same fact must appear and testify before the grand jury. That body has no power to find an indictment for perjury upon their own information, or any two or more of them. Rev. Stat. 1874, chap. 38, sec. 407.
    Mr. Emery A. Stores, also for the plaintiff in error:
    The special grand jury in this case was not selected in the mode provided by law. At the time it was called, a regular grand jury was, if not in fact in session, in existence, and had been regularly drawn under the forms of law.

      The proceeding in which plaintiff in error was examined as a witness was an investigation against him. The fifth amendment to the constitution of the United States provides that no person shall be compelled, in a criminal case, to be a witness against himself.
    It is well settled law, that when a defendant is required by a grand jury to testify touching a criminal charge against him, pending before them, touching said charge, an indictment for such offence returned by the grand jury will be set aside. State v. Forsythe, 16 Minn. 296; United States v. Farrington, 5 Fed. Rep. 341; United States v. Coolidge, 2 Gall. 264; Boyle v. State, 17 Ohio, 225.
    The instruction, that it was not necessary that a crime had been committed to make testimony material, is erroneous. In this case the offence alleged was the substitution of spurious ballots in the place of genuine ones, while the genuine ballots were in the office of the county clerk, and no such substitution is proved.
    This question was put to Mackin by the grand jury: “Mr. Mackin, did you go into Mr. Wright’s office in the afternoon of the 21st day of November, 1884, and show him what purported to be the regular Republican ticket used at the last election, and state to him or represent to him that you desired to have that ticket duplicated as speedily as possible, and with as much secrecy as possible, only changing in the ticket ‘Henry W. Leman,’ and placing thereon ‘Rudolph Brand?’ ” To which he answered, “I have no recollection of any such visit.” He was then asked, “Do you mean by that that you did not have the interview?” And answered, “Yes, sir.” Upon this the assignment of perjury is based.
    In the interrogatory the question of secrecy was involved, and if no injunction of secrecy was put upon the Wrights by Mackin, then he was justified in answering 'the entire ques-tion in the negative.

      Counsel also discussed at length the instructions given and refused, and other matters, in which no authorities are cited.
    Mr. George Hunt, Attorney General, Mr. Julius S. Grinnell, State’s Attorney, and Messrs. Stiles & Lewis, for the People :
    The court had the power to order a special grand jury. Rev. Stat. chap. 78, sec. 19; Stone v. People, 2 Scam. 329. It will be presumed the power was properly exercised until the contrary is shown. McElwee v. People, 77 Ill. 493 ; State v. Hughes, 38 Iowa, 165.
    The constitutional provision that no party shall criminate himself, was not made to protect a witness in committing perjury. It gives a personal privilege only, which he may waive, and if he does, and testifies falsely, he may be convicted of perjury. Mattingly v. State, 8 Texas App. 345; People v. Courtney, 3 Hun, 199; State v. Maxwell, 28 La. Ann. 361; Chamberlain v. People, 23 N. Y. 85.
    It was not necessary to prove that the offence was committed which was being investigated by the grand jury, in order to make Mackin’s testimony material. State v. Wakefield, 9 Mo. App. 326; 73 Mo. 549; State v. Schill, 27 Iowa, 263.
    A grand jury may indict for perjury a witness on his testimony before them. State v. Terry, 30 Mo. 368; 2 Sawyer, 667.
    A proceeding before a grand jury is a judicial proceeding. Massie v. State, 5 Texas App. 81; 3 Greenleaf on Evidence, sec. 190; 1 Wharton on Crim. Law, sec. 1267.
    The foreman of the grand jury was authorized to administer "the oath to witnesses. (Rev. Stat. chap. 78, sec. 17.) Mackin therefore took a lawful oath in a judicial proceeding. That he swore falsely is established by overwhelming proof. That his testimony was willfully and corruptly false is established by the fact that he deliberately swore to that which he knew to be untrue. 3 Greenleaf on Evidence, secs. 199, 200; Scheller v. State, 14 Mo. 505; State v. Chamberlain, 30 Vt. 559; Johnson v. People, 94 Ill. 505; Kimmel v. People, 92 id. 457.
   Mr. Justice Scott

delivered the opinion of the Court:

At the January term, 1885, of the Criminal Court of Cook county, the grand jury presented in open court an indictment against Joseph C. Mackin, charging him with perjury. The indictment contains two counts. Both counts are substantially the same, except the second omits many of the preliminary recitals of the first count. It appears from the averments in the first count of the indictment, the judge presiding in the Criminal Court, at the January term, 1885, charged the grand jury to inquire touching certain election matters arising out of a certain election theretofore, and on the 4th day of November, 1884, held for the choosing of certain officers, and among others a Senator for the sixth district of the State. It is alleged that in the investigation that followed it became and was a matter material in such investigation and inquiry, and a point in question, whether certain false and imitated election tickets or ballots then shortly before found and discovered in the hands and keeping of the county clerk, in connection and mixed with the returns made by the judges of election in the second precinct of the eighteenth ward, were used, changed and substituted for genuine “tickets and ballots” at such election; and also it became and was a matter material to the point in question, whether such false and imitated tickets and ballots had been unlawfully and corruptly substituted for true and genuine tickets and ballots used at the election so held in the second precinct of the eighteenth ward.

It was upon that inquiry and investigation being so made by the grand jury, it is alleged, it became and was a matter material to the point in question whether defendant did, after the 4th day of November, 1884, to-wit, on or about the 21st day of the same month, direct and employ certain persons to engrave and print certain tickets or ballots in imitation of a certain ticket and ballot purporting to be a ticket and ballot such as was at and before such election issued by one of the political parties contesting at such election; and also, upon the same investigation and inquiry, it became and was material to the point in question to inquire whether defendant did procure the printing of election tickets or ballots, of any kind or description whatsoever, on or about the 21st day of November, 1884, and whether he did, on or about that date, obtain and receive from the printers a certain package containing certain tickets or ballots engraved and printed in imitation of a certain ticket and ballot purporting to be a ticket or ballot such as was issued and used at such election so held in the second precinct of the eighteenth ward, with the name of Budolph Brand printed and substituted in the place of Henry W. Leman. It was in his testimony in relation to these matters then being investigated by the grand jury, under the charge of the court, that defendant was called as a witness, and in relation to which, after having taken the usual oath administered by the foreman of the grand jury in that which is a judicial proceeding then pending, it is alleged defendant committed willful and corrupt perjury.

The testimony of defendant before the grand jury, upon which the principal assignments of perjury are based, falls into two divisions: First, that he stated in his testimony before that body that he did not direct or employ the printers named to engrave and print the spurious tickets or ballots alleged to have been found in connection and mixed with the genuine tickets used at the election held on the'4th day of November, 1884, in the second precinct of the eighteenth ward; and second, that he did not receive a package from the printers containing the alleged spurious tickets or ballots after the same had been engraved and printed. The assignments of perjury negative these statements in the testimony of defendant with usual fullness in such pleading.

It appears from the averments in the indictment, it was found by a special grand jury. In that respect it is insisted on- behalf of defendant there is error in the record. Section 19, chapter 88, of the Revised Statutes of 1874, provides the judge of any court of record of competent jurisdiction may order a special venire to be issued for a grand jury at any time when he shall be of the opinion that public justice requires it. Unless something in the record disclosed the contrary, it will be presumed the discretion with which judges of courts of record are clothed in such matters has been well exercised in the interest of public justice. This much is conceded by counsel, but the objection taken is, that at the time the special grand jury in this case was called, a regular grand jury, if not in fact in session, was in existence. The fact on which the argument proceeds on this branch of the case nowhere appears in this record. It may be a grand jury had been regularly drawn for that term of court under the usual forms of law, but as to whether it had been discharged before this special grand jury was called, the record is absolutely silent. Every presumption, however, will be indulged to sustain the action of the court. Its action is to be presumed to be regular until it is made to appear otherwise. Nothing to the contrary appearing in this record, the presumption will be indulged that that state of facts existed which clothed the judge with a discretion to call a special grand jury, whenever, in his opinion, it was required in the interests of public justice.

Another point has been elaborately argued, that is not found, on examination, to have any existence in the record. It is, that the grand jury have no rightful authority, under the statute, to find an indictment, or to make a presentment for perjury, upon information of their own body, nor unless upon the testimony of two witnesses. There is nothing in this record to show how the indictment in this case was found,— whether upon the information of the grand jurors themselves, or after hearing testimony of two or more witnesses, or without any testimony at all. • As the record is silent in respect to these matters, it will be presumed the indictment was found in the manner the law directs. 'Any other rule would defeat the administration of public justice.

There is yet another objection of much the same character. It is assumed as a matter of law, that where a defendant is required by a grand jury to testify touching a criminal charge against him pending before them, and in pursuance of that request does testify before them touching such charge, and where an indictment for such offence is returned by the grand jury against him, it will be set aside, and it is sought to apply the rule stated to the defence -being made. -This can not be done. Whether the proposition stated embodies a correct principle of law, or not, no opinion need be expressed, for the reason, if correct, it can have no application to the present case. The perjury assigned is not upon any testimony given before the grand jury touching any charge then pending against defendant. No complaint had then been made by any one against him, nor had the court instructed the grand jury to investigate any charge against him. The grand jury had been charged by the court to investigate and inquire touching certain election matters arising out of a certain election held on November 4, 1884, and it was upon that inquiry defendant gave the testimony upon which the perjury is assigned. It was no more an investigation of a criminal charge against defendant than it was against the printers or engraver who did the work on the alleged spurious tickets or ballots, all of whom testified freely and fully before the same grand jury, and against whom it does not appear any indictments were found for perjury or any other offence.

Complaint is made that defendant was asked the direct question whether he ordered the spurious ballots, and whether he received them after they had been engraved and printed. Doubtless the same questions in substance were asked of the printers and the engraver, all of whom answered without hesitation what connection they had with them. Had defendant been guiltless of any criminal use to be made of such spurious ballots thereafter, he could have answered as freely as did the other witnesses, and no one would have pretended any charge against him was being inquired into by the grand jury. Assuming the answers to the questions propounded to defendant would have disclosed criminal conduct on his part, it was his privilege to decline to answer, and his refusal could not have been made the basis of any prosecution against him. Of course no one can be compelled to give evidence against himself, and the law secures to every one when testifying in any legal proceeding, whether before’ the grand jury or in the trial court, the privilege to answer or to decline to answer, if, in his opinion, the answers to the questions would tend to disclose matters that might criminate him. The privilege secured is, however, a personal one, and if he shall waive it, and elect to testify, he must do so with as much truth and candor as if testifying concerning other matters as to which he is bound to answer, and if his testimony is willfully false, perjury may be assigned upon it. (State v. Maxwell, 28 La. Ann. 361.) It has been held that even where a party is erroneously sworn in his own behalf, perjury might be assigned upon his testimony, if false. Chamberlain v. The People, 23 N. Y. 85.

The cases cited by counsel for defendant on this branch of the case are either not analogous or are not in point. The case of Boyle v. The State, 17 Ohio, 222, simply holds an indictment found by a grand jury composed of less than fifteen persons having the qualifications required by the statute of that State, is not sufficient to put the accused on trial, and that a plea to the indictment that one of the grand jurors did not possess the requisite statutory qualifications, is a good plea in bar. The principal point decided in United States v. Coolridge, 2 Gall. 364, is, that the grand jury having received the testimony of a person not under oath, the indictment was quashed, as having been irregularly found. Whether the doctrine of that case is good law or not, it has no sort of application to the point made in the .case being considered. The case of The State v. Froiseth, 16 Minn. 296, is not sufficiently analogous in its facts to be an authority in point. In that case defendant was indicted for receiving greater fees than are allowed by law for his services as justice of the peace, and it was stipulated “the grand jury required the defendant to attend and be examined before them as a witness, touching the charge or matters set forth in the indictment, and that in pursuance thereof said defendant did so attend before the said grand jury, and was examined as a -witness by them touching the said charge and -matters, and that his name is inserted as a witness at the foot of the indictment. ” It was held the indictment, under the facts as stated under the stipulation, should be set aside. But that is not the case here. There can be no pretence defendant was examined by the grand 'jury that made the presentment of the indictment against him, touching any charge of perjury that had been made against him. No such question was being considered when his alleged false testimony was given. Other matters were being investigated by the grand jury, and not the charge contained in the present indictment. The case of United, States v. Farrington, 5 Fed. Rep. 343, has been examined, and it is not thought to be sufficiently analogous, either as to the facts or principles discussed, to he an authority in support of the position taken on behalf of defendant.

Coming now to consider matters that more nearly affect the merits of the case, it is insisted it was error in the court to instruct the jury, as it did, that in determining whether the matters sworn to were material to the matter or question under investigation by the grand jury, it is not necessary for the People, upon the trial of the case, to show that a crime had actually been committed, and that it is sufficient to show the grand jury were investigating an alleged crime, and that such evidence inquired into of defendant, by the grand jury, was material evidence in such investigation of such alleged crime. It sufficiently appears from the averments of the indictment, the offence the grand jury had been charged to investigate, and which they were attempting to do, was, whether spurious ballots had been substituted for the genuine tickets, or ballots, cast in the second precinct of the eighteenth ward, after the genuine ballots had been returned to the office of the county clerk. That was an offence against public justice, and was a matter within the province of the grand jury to investigate, and to ascertain whether any such frauds had in fact been committed. It was equally important to ascertain no such fraud had been committed in regard to the election, as to learn such fraud had been in fact committed. Any evidence that tended to establish either theory was material. It was the exact truth of the matter the grand jury had been charged by the court to ascertain. This, of course, could not be done except by the testimony of witnesses called before them,— otherwise there could be no investigation on behalf of the People, and crime would go undetected. An inquest of that character is a legal proceeding under the sanction of the law. Such an investigation would be utterly futile, and even a farce, if witnesses might testify falsely, and no perjury could be assigned on such corrupt and false testimony. There was sufficient ground for suspicion, at least, the election returns had been tampered with,—otherwise the court, it is to be presumed, would not have directed that matter to be investigated. It may have been no more than a mere suspicion so grave an offence had been committed. Even that was sufficient to set the grand jury in motion to inquire into and true presentment make of the matters given them in' charge by the court. Their right to investigate did not depend upon the fact the alleged crime they were about to investigate had actually been committed. It was sufficient the grand jury had undertaken to investigate an alleged crime, to authorize them to call witnesses before them, and if their testimony given upon such investigation is willfully and corruptly false, perjury may be assigned upon it, as is done upon false testimony given in any other legal proceedings. It is obvious in such case all testimony material to the matters before the grand jury which may tend to disclose that an offence has been or has not been committed, is important. Unless witnesses, when called before the grand jury in such cases, can be compelled to speak the truth, it would be impracticable to detect crime. The very object of the inquest is to ascertain whether crime has in fact been committed. In this case it might have been disclosed the election returns had not been corrupted, nor that any criminal use had been made of the spurious ballots that had been engraved and printed; but it was all-important to know that fact, and the grand jury had the clear right to investigate concerning it.

As has been seen in this case, the grand jury had been instructed by the court to inquire touching certain election matters arising out of a certain election held on the 4th day of November, 1884, for the choosing of certain officers, and while pursuing that investigation it became important to ascertain, first, whether spurious tickets or ballots had been substituted for genuine tickets or ballots used at the second precinct of the eighteenth ward, after the same had been returned to the office of the county clerk; and second, if such a wrong had been done, to ascertain the guilty party or parties. It had been proved spurious tickets in imitation of the genuine tickets had been engraved and printed and delivered to defendant, and it became material to learn what disposition he had made of them. It was one step in the investigation that might lead to the ascertainment of the truth of the matter being investigated. The grand jury could not know in advance whether any crime had been committed. Concerning that fact it was their duty to inquire. After all, it might turn out the returns made of the election in that particular precinct had not been tampered with; yet defendant’s testimony given at that inquest was none the less material for that reason, and if false, perjury might be assigned on it. In The State v. Schill, 27 Iowa, 263, it was held, in an indictment for perjury in a criminal investigation before the grand jury, it is not necessary to allege the party charged with the offence that was under investigation was or ;was not guilty thereof, nor the facts constituting such offence. It was said in the opinion of the court, the defendant might be guilty of perjury before the grand jury though the party whose case was being investigated was innocent, and though, in fact, no such offence had been committed by him. The ease of The State v. Wakefield, 73 Mo. 549, declares the same general doctrine, and it was said by the court in its opinion, “the guilt of one falsely swearing does not depend upon the results of the proceedings in which it occurred. ” The instruction given in this case states a correct principle of law. It was not necessary to a conviction of defendant, for the People upon the trial to show that a crime had actually been committed, yet it was proved, beyond any reasonable doubt, that over two hundred of the spurious tickets or ballots that had been engraved and printed for defendant, and delivered to him, were afterwards found in the package in the county clerk’s office mixed with the genuine ballots.

The refusal of the court to give the second instruction asked by defendant is said to be error. It is a sufficient answer to the view taken that the substance of the refused instruction was contained in one that had been given, and it was not the duty of the court to give it a second time.

By the third refused instruction the court was asked to charge the jury, on behalf of defendant, that in determining the question if, in the testimony offered to show what the evidence of defendant was before the grand jury, it appears that a question was addressed to him involving many points, and he was asked to answer as to the entire question, and the assumption of the question was incorrect, or mistaken in any one particular, it was the privilege of defendant to have answered such question in the negative, and an indictment for perjury could not be sustained to an answer given to such 'a question. There is no principle upon which the court could have been required to give this charge. Had it done so, the obvious effect would have been to mislead the jury. It assumes, by implication at least, what is not true,—first, that defendant was required to answer the question as an entirety; and second, that the guilt or innocence of defendant depended upon his answer to this single question. This is not correct. But aside from this view, the instruction does not state a correct principle of law. Although the question may have assumed that which was incorrect, still defendant, so far as he undertook to answer it, was obligated to speak the truth.

It is confidently insisted it was error in the court to refuse the fourth instruction asked by the defendant. By that instruction the court was asked to tell the jury if they believed, from the evidence, defendant did not, in giving his testimony before the grand jury, say that he did not receive, on or about the 21st day of November, 1881, from the printers, a package containing ballots engraved and printed as set forth in the indictment, but did say he received a package from these parties at that place and at that time, and that he did not then know what the package contained, this would not be sustaining the averment as to the language used by defendant when a witness before the grand jury. This instruction is faulty for many reasons. It assumes the guilt or innocence of the accused depends wholly on a single answer made during his examination. It might be that at one time in his examination he said he did not know what the package contained, and at another time he might have denied he had received any package containing the spurious tickets or anything else, or it might have been proved by other evidence he did know what the package contained. These were all matters for the consideration of the jury, eoncei'ning which it was not the province of the court to instruct. The court clearly did not err in refusing that instruction.

A part of the fifth instruction asked by defendant, and refused by the court, might with great propriety have been given had it been disconnected from that which is positively vicious. It is undoubtedly the law that the evidence upon which the indictment for perjury was based must have been material to the matter then being investigated or the point in question before the grand jury, and that it devolved upon the prosecution not only to affirmatively so state, but to show its materiality. That was done. The materiality of the testimony was averred in the indictment, and sufficient proof was made at the trial. It is to be noted the same principle stated in the first clause of this instruction was in fact contained in one that was given, and the accused was in nowise prejudiced because the court did not give it a second time. That which follows this statement of a correct principle of law is a mere argument injected into the instruction, and obviously rendered it wholly vicious. The court was asked to say to the jury, “the mere ordering of spurious ballots, and the receiving of spurious ballots, alone, or taken together, are not offences under the laws of this State, and even had the defendant been guilty of ordering and receiving such ballots, that alone would not have justified an indictment against him. ” The giving of this paragraph of this instruction would no doubt have warranted the belief in the minds of the jury the accused was indicted for “ordering and receiving” spurious ballots, and to that extent it would have been misleading. No one would insist the mere ordering or receiving spurious ballots, with no intent to make a criminal use of them, wrould be an offence under the laws of the State; but if it should appear it was intended such spurious ballots should be used in a conspiracy formed to corrupt the election returns already made, then the ordering or receiving of such ballots, in furtherance of such a conspiracy, would be an offence, and a very grave one, against the laws of the State. The accused was not indicted, as this clause of the instruction seems to assume, for merely ordering and receiving spurious ballots. That might or might not be an offence, depending upon the fact whether there was a purpose or conspiracy to make a criminal use of them. In the investigation the grand jury had been instructed by the court to make, it became material to ascertain whether any spurious ballots had been engraved and printed. That was proved. It was next material to discover whether any purpose or conspiracy existed to make any criminal use of such spurious ballots, and if so, who were the guilty parties. One way of proving that was by ascertaining who had ordered the tickets engraved and printed, who had received them, and what disposition was made of them. These facts were all material and vital to the point in question before the grand jury, and when defendant was interrogated concerning them, he ought to have spoken truthfully, or remained silent, as was his privilege to do. It was upon the alleged false testimony as to whether he had ordered or received the spurious ballots that perjury is assigned. The clause of this instruction quoted has no reference tó that offence. It was for that reason highly calculated to mislead the jury, and therefore the whole instruction was properly refused.

Of the additional grounds of error suggested on the oral argument of the case, one is as to all of the instructions given on behalf of the People, that they permitted the jury to find defendant guilty “if, from the evidence, they believed him guilty beyond a reasonable doubt.” Of the correctness of this form of an instruction no doubt is expressed, as it is generally used. The same expression is used in all the instruetions asked on behalf of defendant in this case. It seems, however, to be claimed it is erroneous in cases of perjury where more than the evidence of one witness is required to convict. Originally the rule was, that in order to convict a person of perjury there must be two witnesses swearing directly adversely from the defendant’s oath upon which the perjury was assigned; but the strictness in that regard has long since been relaxed, and text writers now hold, on the authority of the adjudged cases, the rule formerly observed must not be understood as establishing that two witnesses are necessary to disprove the fact sworn to by defendant, for if any material circumstance be proved by other witnesses in confirmation of the witness who gave the direct testimony of the perjury, it may turn the scale, and warrant a conviction. (1 Greenleaf on Evidence, sec. 257; 2 Bussell on Crimes, 650.) It is said it is upon such evidence the jury must find the guilt of the accused beyond a reasonable doubt. That is undoubtedly true, but it is not necessary to state in every instruction the degree or quantity of evidence indispensable to a conviction for perjury, nor to state the rule of evidence in such eases, in connection with the usual formula, no conviction can be had unless the accused is proved guilty beyond a reasonable doubt. It may be stated in a separate instruction, if the accused desires to have the jury so instructed.

The alleged variance between the averments in the indictment and the proof does not exist. It is charged in the indictment the spurious ballots were ordered and received from S. B. Wright and W. H. Wright. The insistence is, such ballots were ordered and received from S. B. Wright alone, if so ordered or received at all. That is not the fact. Both the Wrights were present when the ballots were ordered, and both were interested in doing the work, and it is therefore true, in law and in fact, the spurious ballots were ordered from both of them. It is also proved past any doubt that both of them were present when the package containing the spurious tickets or ballots was delivered to defendant.

Lastly, it is insisted the evidence is not sufficient to warrant the conviction of the accused, and the reason stated in support of that position is, that only one witness swore to the facts upon which the perjury is assigned. This is a misapprehension of the evidence. There is the testimony of more than two witnesses swearing directly to the fact the accused ordered spurious tickets or ballots to be engraved and printed. There is also the testimony of two witnesses to the other fact upon which perjury is assigned: that the package said to contain the spurious tickets or ballots was delivered to defendant. As respects the contents of the package, there is the direct testimony of one witness, and such corroborating testimony as leaves no reasonable doubt on the mind, it contained the spurious tickets or ballots that had just that afternoon been printed in such great haste by the parties delivering such package, and at the request of the defendant himself. Without entering upon any critical analysis of the evidence, it is sufficient to say it has been closely examined, and in the opinion of this court it fully warrants the conviction of the accused.

After the verdict of guilty was rendered, a motion for a new trial was made. One cause assigned in support of that motion was, that one of the jurors impaneled to try the cause, and who sat in the case, was of unsound mind. Touching the mental capacity of the juror quite a good deal of testimony was introduced, but the court was of opinion the juror was competent, and the objection was accordingly overruled. It wmuld seem to be a sufficient answer to the position taken, it does not appear, from any affidavit or otherwise, the mental condition of the juror was not as well known to defendant or his counsel before he was accepted by them on the panel, as afteiwvards. If a disqualification of a juror was known to either of them before he was accepted, it can not be assigned for error after verdict. The law on this ■ subject' is -so well settled the point need not be elaborated.' (Swarnes v. Sitton, 58 Ill. 155; Fitzpatrick v. The People, 98 id. 269.) But aside from this view of the law, it does not appear, from the testimony introduced in support of the motion for a new trial, the mind of the juror was so seriously impaired as to render him incompetent. Two physicians that had practiced in his family, and perhaps treated him, never discovered any disorder in his mental faculties. It seems not to have occurred to the jurors that sat with him, he was a man of unsound mind, or that he was in any way deficient in his reasoning powers or memory. It is no doubt true that at times he was eccentric, and much inclined to exaggerate, particularly as to his money and his bonds or government securities. Very few, if any, of his neighbors seem to have credited his statements in that respect, and it is shown they were really untrue. But there is no satisfactory evidence that his mind was so much affected as to disqualify him as a juror, and there were no grounds for granting a new trial for that reason.

Every phase of this case, and every point made for a reversal, has been most carefully and patiently considered, and no error has been discovered, nor has any been pointed out, of sufficient gravity to warrant the reversal of the judgment.

Judgment 'affirmed.


source: Caselaw Access Project

author: Mr. Justice Craig

license: Public Domain

text:
    Omar L. Rosenkrans et al. v. Alleston E. Barker.

      Filed at Ottawa November 14, 1885.

    1. Exemplary damages—in suit for malicious prosecution—as against one who did not aid in initiating the prosecution. A and B were partners^ carrying on business in this State, the former residing in another State, the business being principally conducted by C, the husband of B. C procured the arrest of a debtor of the firm, who had been inveigled into the State, under a writ of ne exeat. The bill in the ne exeat suit was dismissed, and C prosecuted an appeal from the order of dismissal. A knew nothing of the suit until after its dismissal and the appeal had been taken, and never ordered, advised or directed the arrest, but on learning the facts condemned the action of 0, and had the appeal dismissed: Held, that an instruction in an action for false imprisonment and malicious prosecution, brought by the debtor, authorizing the finding of exemplary damages, was erroneous as to A. And held, also, even if he had approved of the arrest upon learning what had been done, that he would have been liable only for the real damages sustained by the plaintiff, and not for vindictive damages. '
    2. Partnership—agency of each partner as respects the others. By entering into partnership, each partner reposes confidence in the other, and constitutes him his general agent as to all partnership concerns.
    3. Same—liability of one partner for tort of another. As a general rule one partner is not liable for the willful tort of a co-partner. So if one partner, without the knowledge or consent of the other, maliciously procures the arrest and imprisonment of a debtor of the firm, and such act fails to be of any benefit to the firm, the partner not participating in the unlawful act and deriving no benefit therefrom, will not be liable for the arrest and imprisonment.
    5. Malicious prosecution—evidence of plaintiff’s character or reputation. In an action for malicious prosecution, the defendant may prove the general bad reputation of the plaintiff at the place where he resided at the time of his arrest, for honesty and fair dealing in business, to rebut the proof of want of probable cause, and also in mitigation of damages.
    5. Instruction—not based on the evidence, calculated to mislead. An instruction which is not based on the evidence in the case is improper, and should not be given, as it is liable to mislead the jury. So where a resident partner had a debtor of his firm arrested on a writ of ne exeat, without the knowledge or approval of his co-partner residing abroad at the time, and the latter, on learning the facts, disapproved of the arrest and the further prosecution of the ne exeat suit, it was held, that an instruction as to the liability of the co-partner, based on the theory of his approval and ratification of the arrest, was erroneous and misleading.
    Appeal from the Appellate Court for the First District;— heard in that court on appeal from the Superior Court of Cook county; the Hon. Elliott Anthony, Judge, presiding.
    Messrs. Rosenthal & Pence, for the appellant Rosenkrans:
    A partner who does not authorize or consent to a wrongful act can not be held liable unless the firm received a benefit from such act. Grund v. Van Vleck, 69 Ill. 478; Gilbert v. Emmons, 42 id. 143; Petrie v. Lamont, 1 Car. & Marsh. 93; Collyer on Partnership, sec. 457; 1 Lindley on Partnership, bk. 1, chap. 1, sec. 4; Durant v. Rogers, 71 Ill. 121.
    Rosenkrans never approved or sanctioned the ne exeat proceedings after the suit was brought, nor derived any benefit from it, and hence is not liable. A partner who does not join in the perpetration of a wrongful act can not be held liable for vindictive damages. Grund v. Van Vleck, 69 Ill. 478.
    The advice • of counsel learned in the law, will protect parties from a suit for malicious prosecution, in case the facts be fairly and honestly disclosed. Lowenthal v. Strong, 90 Ill. 74.
    Messrs. Shuman & Defrees, for the appellant Weber:
    The discharge of an accused person is not a sufficient ground for a malicious prosecution suit, as showing a want of probable cause. Israel v. Brooks, 23 Ill. 578.
    Probable cause is a mixed question of law and fact. Israel v. Brooks, 23 Ill. 578; Jacks v. Stimpson, 13 Ill. 703.
    What facts, and whether particular facts, constitute probable cause, is a question exclusively for the court. Sutton v. Johnstone, 1 T. R. 493; Panton v. Williams, 2 Q. B. 169; Stone v. Crooker, 24 Pick. 81; Kidder v. Parkhurst, 3 Allen, 393; Ash v. Marlow, 20 Ohio, 119 ; Stewart v. Sonneborn, 98 U. S. 187; Speck v. Judson, 63 Me. 207; Grant v. Moore, 29 Cal. 644; Thale v. Krekeler, 81 N. Y. 428; Cole v. Curtis, 16 Minn. 182.
    Probable cause is a reasonable ground of suspicion supported by circumstances sufficiently strong in themselves to warrant a cautious man in the belief that the person accused is guilty of the offence with which he is charged. Richey v. McBean, 17 Ill. 65; Munns v. Dupont, 3 Washb. C. C. 31; Foshay v. Ferguson, 2 Denio, 617; Hurd v. Shaw, 20 Ill. 356.

      The defendant may prove the general bad reputation of the plaintiff, both to rebut the want of probable cause, and in mitigation of damages. 3 Sutherland on Damages, 708; Bacon v. Towne, 4 Cush. 240; 2 Greenleaf on Evidence, sec. 458; Wood v. United States, 16 Pet. 366; Fitzgibbon v. Brown, 43 Me. 169; Blizzard v. Hays, 46 Ind. 166; Oliver v. Pate, 43 Ind. 132; Scott v. Fletcher, 1 Overt, 488; Express Co. v. Patterson, 73 Ind. 430; Pullen v. Glidden, 68 Me. 563.
    Messrs. Abbott, Oliver & Showalter, for the appellee:
    Proof of a person’s reputation should be limited to the community in which he resides. The witness should live in, or be acquainted in, that community before being allowed to testify as to the party’s reputation.
    . The status of Rosenkrans as an instigator of the arrest, may be referred to either of two theories:
    First-.—The perpetrators were servants or agents of 'Rosenkrans, acting within the scope of their agency or employment. Weber had the general management of the business; Johnson was subject to his direction. Storck & Shuman were the attorneys of the house, and the purpose was to make a claim due to the house.
    Second—The wrongful proceeding was planned and instituted for Rosenkrans, and in his name, and when the same came to his knowledge he ratified what had been done, and continued the said proceeding for six or eight months longer.
    The action goes against Rosenkrans upon either of these theories; and in either case the subsequent approval, being evidence of personal malice, makes him liable to the extent of vindictive damages.
    These rules are illustrated by the cases of Amiable Nancy, 3 Wheat. 546, 1 Paine, 118, and Wilson v. Tumman, 6 Man. & G. 236.
   Mr. Justice Craig

delivered the opinion of the Court:

This was an action brought by A. E. Barker, in the Superior Court of Cook county, against O. L. Bosenkrans and J. H. Weber, to recover damages for an alleged malicious prosecution and false imprisonment. A .trial of the cause before a jury resulted in a verdict and judgment in favor of the-plaintiff for $2000. The defendants appealed to the Appellate Court, where the judgment was affirmed.

The facts out of which this litigation grew, so far as is necessary to state them, are substantially as follows: In 1882 Barker resided in Iowa, and was engaged, in a small way, in the jewelry business. In the latter part of the year he bought a bill of goods of Bosenkrans & Weber, of Chicago, amounting to $350. The goods were sold by a traveling man named Johnson. When the bill became due, $100 was paid, but no part of the balance lias ever been paid. Bosenkrans resided in Wisconsin, and did business in Milwaukee, but at the same time he was a partner in the jewelry business of Bosenkrans & Weber, in Chicago, the firm being composed of Bosenkrans and Lucy B. Weber, who was the wife of J. H. Weber. J. H. Weber had the general management of the business of this Chicago firm. On or about the first of February, 1883, the bill of goods remaining unpaid, Johnson, who had sold the goods, induced Barker to visit Chicago, under the pretence that he would enter into partnership with him in the jewelry business, in Chicago. Upon the arrival of Barker, Weber was notified, by Johnson, of the arrival, and on the 5tli day of February, 1883, Weber filed a petition and obtained an order for a writ of ne exeat. The writ was issued, and placed in the hands of the sheriff, who -arrested Barker, and held him in- custody ten or twelve hours, when he was released on bail. Subsequently, and on the 17th day of March, 1883, on demurrer, the petition was dismissed. It does not appear that Bosenkrans had any knowledge that the proceedings had been instituted against Barker, until about the first day of April, 1883, and at this time the petition for a ne exeat had been held bad on demurrer, and dismissed, and Weber had then, or few days thereafter, appealed to the Appellate Court. When Bosenkrans learned what had been done, he notified Weber that it was wrong, and advised the dismissal of the appeal from the Appellate Court, and under his advice no further steps were taken to prosecute the appeal.

At the request of plaintiff the court instructed the jury:

“If Bosenkrans became acquainted with the facts in the matter about the last of March, 1883, that being so informed as to said facts attending the commencement of said proceeding, said Bosenkrans suffered said proceedings to be continued in the courts, through the medium of an appeal, and did not in any way discountenance said proceedings or put a stop to the same, then the court instructs the jury, that if they find, from the evidence, that said ne exeat proceeding was instituted maliciously and without probable cause, and said Bosenkrans was so informed, but allowed the ne exeat case to proceed, then all such facts, if the jury so believe, may be taken into consideration in determining whether said Bosenkrans ratified and approved of the arrest Oi 'said Barker, and if he did so approve and ratify the arrest of said Barker, then he would be equally liable with Weber, if said arrest was made maliciously and without probable cause.”

The court also instructed the jury that if they find the defendants guilty, under the evidence, that the arrest was malicious and without probable cause, and that plaintiff has sustained actual damages, then, in assessing damages, they are not limited to compensation for actual damages sustained, but may give exemplary or vindictive damages." These instructions are claimed to be erroneous as to the defendant Bosenkrans.

An instruction which is not based on the evidence in the case, is improper, and should not be given. It is liable to mislead the jury, and usually results in a wrong verdict. As to the first .instruction, supra, we find no evidence in the record upon which it could fairly be predicated. Bosenkrans testified,—and in this he is corroborated by other evidence,— that when he came to Chicago, and learned for .the first time of the proceedings, he notified Weber, who was in charge of the matter, that it was wrong, and the appeal ought to be dismissed. Here he not only failed to sanction and approve, but condemned, what had been done, and under his direction no further steps were taken to prosecute the appeal. The conduct and acts of Bosenkrans contain no element of approval, and the instruction, based upon the'theory of an approval, in the absence of any evidence to sustain such a theory, could do no less than mislead the jury.

As respects the other instruction, we are of opinion as to Bosenkrans -it is erroneous. It is not claimed that.he ordered, advised or directed the arrest, or that he even knew of the occurrence until after the proceedings in the ne exeat case had been dismissed. The claim is, that after knowledge of the arrest he approved what had been done. If such was the case he would only be liable for the real injury sustained, and not for vindictive damages, as. held in Grund v. Van Vleck: 69 Ill. 478. But under the instruction the jury were directed that each defendant was liable for actual and vindictive damages.

It is, however, claimed by appellee, that Bosenkrans is liable upon either one of two grounds: First, because those who caused the arrest were servants or agents of Bosenkrans, acting within the scope of their agency; and second, the wrongful proceeding was instituted for Bosenkrans, and in his name, and when he became aware of what had been done he ratified it. Weber, who caused the arrest of Barker, was not, in fact, a partner of Bosenkrans, but he acted for his wife, who was the partner, and so far as the acts are concerned, they may be regarded as the acts of Bosenkrans’ partner. In many respects one partner is the agent of the other. In the purchase and sale of goods within the scope of the partnership business, the acts of one may be regarded as the acts of both. •In such cases the one that transacts the business, acts for himself and in the capacity as agent of the other, and in that capacity he binds himself and also binds his partner. By entering into partnership, each party reposes confidence in the other, and constitutes him his general agent as to all partnership concerns. (Gow on Partnership, 52.) But the question involved here is not as to the liability of one partner for the contracts of the other, but it is whether one partner may be liable in damages for the wrongs of the other. Mr. Collyer, in his work on Partnership, section 457, says: “A learned writer observes, that though partners are, in general, bound by the contracts, they are not answerable for the wrongs of each other. In general, acts or omissions in the course of the partnership trade or business, in violation of law, will only implicate those who are guilty of them. ” And in 1 Bindley on Partnership, blc. 2, chap. 1, sec. 4, the author says: “As a rule, however, the willful tort of one partner is not imputable to the firm. For example, if one partner maliciously prosecutes a person for stealing partnership property, the’ firm is not answerable unless all the members are, in fact, privy to the malicious prosecution.” In Gilbert v. Emmons, 42 Ill. 143, where a question arose as to the liability of one partner for the act of the other in causing the arrest of a person charged with larceny of money belonging to the firm, it was held that the mere knowledge and consent of one partner that the other should have the person accused arrested, would not render the partner so knowing and consenting, liable to an action for- malicious prosecution. It was necessary that the consent should be of such a character as to amount to advice and cooperation. In Grund v. VanVleck, 69 Ill. 478, a question arose as to the liability of one partner for the tort of the other, and it was held that one partner can not involve another in a trespass unless in the ordinary course of their business, and in a case where the trespass is in the nature of a taking which is available to the partnership; and in such ease, to render the partner liable who did not join in the commission of the trespass, he must afterwards have concurred, and received the benefit of it. Here no part of the debt was collected by the commencement or prosecution of the proceedings against Barker, and it is not claimed that a liability exists on account of receiving any benefit from the arrest, and if Rosenkrans is to be held liable, it is upon the ground that he was a member of the firm which instituted the suit and caused the arrest. This, under the authorities cited, can not be done.

As to the second ground relied upon by appellee,—ratification,—what was said in passing upon the instructions given for appellee is sufficient to dispose of that matter, and no further discussion of the subject is deemed necessary.

One question has been raised in regard to the admission of evidence, which remains to be considered. On the trial the defendants, as preliminary to proving the general bad reputation of the plaintiff in the place where he resided, asked a witness the following question: “Do you know the general reputation of the plaintiff, Mr. Barker, among his friends and neighbors and acquaintances, in the city of McGregor, Iowa, as it existed in December and January and February, 1882 and 1883, for honesty and fair dealing in business?”—which was objected to, objection sustained, and exception taken by defendants. We think that evidence of the general bad reputation of the plaintiff was admissible.- In 3 Sutherland on Damages, p. 708, it is said: “According to the better authorities, the defendant may prove the general bad reputation of the plaintiff,- both to rebut the proof of want of probable cause and in mitigation of damages.” In Israel v. Brooks, 23 Ill. 575, an action for a malicious prosecution, it was held that previous good character may be shown as one evidence of want of probable cause, and bad character may be shown as a reason for probable cause. Several questions had been propounded to the witness which were not proper, but if the witness knew the general reputation of the plaintiff in the place where he resided at the time of the arrest, we think it was proper evidence for the consideration of the jury, to rebut the proof of want of probable cause, and also in mitigation of damages. Bacon v. Tinne, 4 Cush. 240; Pullen v. Glidden, 68 Me. 563.

For the errors indicated, the judgment of the Appellate Court will be reversed, and the cause remanded to the Superior Court for further proceedings consistent with this opinion.

Judgment reversed.


author: Mr. Justice Scholfield

text:
    Moritz Schreiber et al. v. The Chicago and Evanston Railroad Company.

      Filed at Ottawa November 14, 1885.

    1. Eminent domain—when condemnation is complete and rights of parties fixed. Until the compensation awarded the owner of property sought to be appropriated to public use is actually paid, the petitioner has no right to enter upon the premises, and the land owner has no right to the compensation. Until this is done, the party seeking condemnation may abandon the location and select another. Until paid, the owner may do any act with his property he pleases, not materially affecting the proceeding and the object sought to be accomplished thereby.
    2. Same—to what time the valuation to relate. Where the compensation is paid, the right vested in the company condemning relates back to the time of the filing of the petition, and hence the compensation to be paid is fixed by the valuation of the property at that date.
    3. Same — compensation to lessee holding unexpired term. A party holding an unexpired term in property under a lease, is entitled to compensation for the value of the unexpired term before he can be deprived of the use of the property; but where he is permitted to occupy the premises after the proceeding to condemn is commenced, before a hearing .is had, as to him, until his term expires, he will have no interest to be taken or affected, by the proceeding, and he will not be entitled to any compensation or damages for the value of improvements or trade fixtures, or for the cost of their removal.
    4. Same—tenant renewing lease pendente lite. Where a petition is filed to condemn land occupied by a tenant, and he is served with summons before his lease expires or any renewal is had, and his lease does not provide for a renewal, he can not, by taking a new lease, acquire any new rights in the use of the property adverse to the petitioner. So he can not acquire any new rights simply by holding over.
    5. Landlord and tenant—notice to terminate tenancy. Where land is occupied under a lease for a fixed time, the tenant is bound to surrender possession at the end of the term without any notice to quit or demand of possession.
    6. Same—removal of trade fixtures. On the consummation of a condemnation proceeding to take real estate for railroad purposes, by payment of the compensation awarded to the owner of the same after the expiration of a lease under him or his guardian, there seems to be no reason why the tenant holding over his term, and in possession, may not remove from the premises improvements placed thereon by him, which he might have removed as against his landlord, such as buildings and machinery, which are trade fixtures.
    Appeal from, the Superior Court of Cook county; the Hon. Joseph E. Gary, Judge, presiding.
    Mr. Edmund Jussen, Mr. John Woodbridge, Jr., and Mr. Francis Lackner, for the appellants:
    By allowing a tenant for a year or years to hold over, he will become a tenant for another year. Prickett v. Ritter, 16 Ill. 97; McKinney v. Peck, 28 id. 178; Otto v. Jackson, 35 id. 350; Hunt v. Morton, 18 id. 76; Higgins v. Halligan, 46 id. 173; Clapp v. Noble, 84 id. 64; Waren v. Halen, 65 id. 395.
    The structures on the premises were trade fixtures belonging to the lessee. Morse v. Smith, 24 Ill. 516; Van Ness v. Packard, 2 Pet. 413; Taylor on Landlord and Tenant, sec. 546.
    When necessary to destroy a building standing in the proposed right of way, its value as a building should be allowed. Railroad Co. v. Winslow, 66 Ill. 222.

      The expenses of its removal and interruption to business are proper elements of damages. Railroad Co. v. Capps, 67 Ill. 614.
    If a landlord stands by and sees his tenant sell fixtures to a new tenant he can not afterwards assert title as against the assignee. Ewell on Fixtures, 346, 246; Livingston v. Sulzer, 26 N. Y. 379.
    Damages should be assessed for the whole property taken as it appears, .irrespective of ownership, occupation or use. Canal Bank v. Meyer, 9 Wend. 256; Chicago v. Garrity, 7 Bradw. 474.
    The right of the tenant to fixtures continues until he surrenders possession, and does not terminate with the lease. Moen v. Smith, 24 Ill. 516; Miller v. Earl, 35 Sup. C. (J. & S.) 461; Hagar v. Trustees, etc. 44 Vt. 294.
    The value of the premises and improvements are to be estimated as of the date of filing petition to condemn. South Park Commissioners v. Dunlevy, 91 Ill. 53; Livingston v. Sulzer, 19 Hun, 382.
    The filing of the petition to condemn was such an appropriation of the buildings that we could not lawfully remove them. Miller v. Earl, 35 Sup. C. (J. & S.) 472; Hampden Paint and Chemical Co. v. Springfield, 118 Mass. 118.
    The court will not permit appellee to deny the right of appellants after making them parties to the petition. Railroad Co. v. Hopkins, 90 Ill. 317.
    Mr. E. Walker, for the appellee:
    The filing of the petition to condemn is not an appropriation of the property. This is done by taking actual possession after payment of the money awarded by the jury. Railroad Co. v. Letter, 68 Ill. 144.
    The true measure of compensation to the owner of the fee is the full market value of the land, with damages to land not taken, and to the lessee, the full market value of the unexpired term of leasehold. Railroad Co. v. Walsh, 106 Ill. 253; Booker v. Railroad Co. 101 id. 333; Chicago v. Garrity, 7 Bradw. 482.
    No part of appellants’ leasehold estate has been taken, as it expired, and there was no extension or removal. They had nothing to be condemned.
    If the. tenant remains and enjoys the use of the premises until his term expires, he can not claim compensation, although notified to quit by the company before the expiration of the term. Regina v. Railroad Co. 10 Ad. & E. 3; Ex parte Nadin, 17 L. J. (Ch.) 421.
    Appellee having acquired the property from the landlord, succeeded to his immediate rights of possession on the termination of the leasehold estate. Appellants then had no lawful right except that of removal.
   Mr. Justice Scholfield

delivered the opinion of the Court:

This was a proceeding in the Superior Court of Cook county, to condemn a strip of ground, fifty feet in width, over a certain block in the city of Chicago, for right of way for a railroad. The fee in the ground sought to be condemned was in Henry W. Kingsbury. While he was a minor, his guardian executed ground leases of the block, as follows: From May 1, 1879, to May 1,1881, to Charles Mears; from May 1, 1881, to May 1, 1882, to Schreiber & Knaak, the appellants; from May 1,1882, to December 15,1883, to the same parties. Immediately after the execution of the lease to Mears, he erected on the part of the block of which condemnation is sought, certain brick and framed buildings to enable him to carry on a planing-mill and furniture factory, and he used the buildings for that purpose until the 20th of January, I860, when he sold the buildings and his leasehold interest to Schreiber & Knaak, the appellants. After this time the appellants used the buildings for the same purpose. Neither of the leases .contained any provision with reference to the improvements, nor mentioned that there were improvements. Kingsbury became of age on the 15th of December, 1883, the day on which the last lease expired. The appellants did not surrender possession to Kingsbury, but remained in possession, and it is stipulated they are now holding over under said leases, and paying rent to Kingsbury. The petition was filed on the first of May, 1883, and there was a hearing as to the rights of Kingsbury, and the compensation to be paid to him, at the May term of the court, 1884, but the claim of appellants was not heard until the May term, 1885. The court found, at that time, that the amount awarded to Kings-bury had been paid to him, and that appellee was entitled to possession, except as against the claim-of appellants. The court also then further found, and so held, that appellants had no further right of possession as lessees, and that they could not recover for the value of the improvements and the cost of the removal of the machinery, and for damage to their business.

Our statute provides that “the judge or court shall, upon such report, ”—i. e., report of the jury assessing damages,— “proceed to adjudge and make such order as to right and j ustice shall pertain, ordering that petitioner enter upon such property and the use of the same, upon payment of full compensation, as ascertained as aforesaid; and such order, with evidence of such payment, shall constitute complete justification of the taking of such property.” (Eev. Stat. 1874, p. 477, sec. 10.) And so we have held, that until the compensation is paid, there is no right to enter upon the premises, —that until that time, the company seeking condemnation has the right to abandon the location and adopt another. St. Louis and Southeastern Railway Co. v. Teters, 68 Ill. 144; Chicago and Iowa Railroad Co. v. Hopkins, 90 id. 317; Chicago v. Barbian, 80 id. 482; South Park Commissioners v. Dunlevy, 91 id. 49. We can not, therefore, hold, as counsel for appellants contend should be held, on the authority of Muller v. Earl, 35 N. Y. Sup. Ct. (Jones & Spencer,) 472, that the filing of the petition to condemn was such an appropriation of the buildings that appellants could not lawfully remove them. As we said in Chicago v. Barbian, supra: “The rights of the parties are correlative and have a reciprocal relation, the existence of the one depending on the existence of the other. When the party seeking condemnation acquires a vested right in the property, the owner has a vested right in the compensation; but since no vested right can be acquired in the property, without the owner’s consent, until compensation shall be paid, it must follow there can be no vested right in the compensation until after the amount is paid. ” This was quoted with approval in South Park Commissioners v. Dunlevy, supra.

Quite clearly, so long as the company is not bound to the location,'but may change it and adopt another, the land owner can not be bound. He may, until the selection by the company becomes binding, do any act that an owner may do with his own, not materially interfering with the condemnation proceedings and the object sought to he accomplished thereby. From this it must follow that appellants were at perfect liberty to enter upon the premises at any time before the expiration of the lease on the 15th of December, 1883, and remove their machinery and buildings, assuming, as they claim, that the latter fall within the description of “trade fixtures.” It did not require, as- seems to be supposed, notice: to terminate the lease on the 15th of December, 1883. Our statute provides that “when the tenancy is for a certain period, and the term expires by the terms of the lease, the tenant is then bound to surrender possession, and no notice to quit or demand of possession is necessary.” Eev. Stat. 1874, sec. 12, chap. 80.

It does* not appear "that there was any covenant of renewal, and hence, at the time the petition was filed, the only rights the tenants had were to enjoy the unexpired term, and remove their fixtures. Could they, after the petition was filed and summons served, and they thus had notice of the intention to appropriate the property to the uses of the right of way, and that the requisite steps were then being taken to execute that intention', acquire new rights in th.e use of the property, adverse to the petitioners ? We think not.

Notwithstanding that until the compensation is paid there is no right to enter into possession of the premises, yet when the compensation is paid the right vested, in the company relates back to the time of the filing of the petition; and upon that principle we have held that the compensation to be paid in-such cases must be fixed by the.valuation of the property at the date of the-filing of .the petition. (South Park Commissioners v. Dunlevy, supra.) Any rights in the property condemned, the tenants may have obtained by holding over, as against Kingsbury, they obtained pendente lite, and, therefore, subordinate to the rights of the petitioners. We know of no reason why they might not have removed their buildings, etc., at any time, while, as between them and the owner of the fee, they were trade fixtures, which are personal property in legal contemplation. The proceeding is not to condemn personal property, and the buildings,, etc., could only be affected by it when they became legally a part of the soil to which they are attached, so as to pass with the title to it, as realty.

When the petition was filed, there were some six months of an unexpired term of which the tenants could not have been deprived without their consent; but with the company’s consent, as implied by their not molesting them, they had the full enjoyment of that unexpired term. It is not reasonable that a party should ask to be compensated for the loss of an unexpired term, when, in fact, he has had the full enjoyment of his entire term. What these tenants would have been entitled to had they quit their possession when the summons was served, is a question not presented by this record.

The contention that the making of the tenants parties, is a recognition of their interests, is sufficiently answered by the fact that when this petition, was filed these tenants had an unexpired term in the premises, but having enjoyed that term before the assessment of damages, that interest had then ceased.

The judgment is affirmed. '

Judgment affirmed.


author: Mr. Chief Justice Mulkey

text:
    Horace H. Keigwin et al. v. Drainage Commissioners of Hamilton Township et al.

      Filed at Ottawa November 14, 1885.

    1. Corporate existence—remedy whereby it may be questioned. The legality of the organization or formation of a corporate body, such as a drainage district, and its right to perform corporate acts or functions when it is a de facto corporation, can nbt be questioned by bill in chancery. The proper remedy to test the legality of a corporation, and its power to perform certain acts assumed by it, is by information in the nature of a quo warranto.

      2. Injunction—to restrain collection of taxes and assessments. A tax or assessment for drainage purposes will not be enjoined by a court of equity for mere irregularities or defects in the proceedings not affecting the jurisdiction of the tribunal imposing it. To this rule there is an apparent exception, as, when the element of fraud or intentional wrong on the part of those imposing the tax or assessment enters into the case..
    3. Illegality in a tax or assessment resulting from a want of any law, general or special, authorizing it, will alone justify a court of equity in enjoining its collection.
    4. An illegality in a tax may occur when the taxing tribunal has exceeded the limits of its power, in which case the tax will be illegal for the excess, only, which may be enjoined.
    5. Where the authorities imposing a tax, for any cause fail to obtain jurisdiction of the person affected or subject matter of the suit, but are nevertheless proceeding to sell the land of the defendant, and thereby to create a cloud upon his title, equity will enjoin the proceeding and prevent the threatened injury. In such case the tax is a mere nullity.

      ■6. Special assessments—remedy to correct errors. If the authorities of a drainage district having authority of law to make assessments upon lands to be benefited by a system of .drainage, while acting within their jurisdiction commit errors not jurisdictional, a-remedy is provided to correct the same by appeal, and the party having an adequate remedy at law must pursue it. He can not fail to avail of such remedy and have relief in equity.
    Appeal from the Appellate Court for the Second District; —heard in that court on appeal from the Circuit Court of Lee county; the Hon. John V. Eustace, Judge, presiding.
    Mr. W. W. Eathbun, for the appellants:
    A corporation must show a grant for all the powers it assumes to exercise, especially the right, by taxing or otherwise, to divest individuals of their property without their consent. Mix v. Ross, 57 Ill. 125; Vieley v. Thompson, 44 id. 12; Sharp v. Spier, 4 Hill, 76; Drake v. Phillips, 40 Ill. 394; Sherwood v. Reade, 7 Hill, 431.
    A sufficient petition is required to give the drainage commissioners power to organize and act, it being a jurisdictional matter. Laws 1879, pp. 120, 121, secs. 2, 4, and p. 143, secs. 3, 4, 5.
    Without a sufficient petition the officers had no power to act. Sharp v. Spier, 4 Hill, 88; Dean v. City of Madison, 9 Wis. 402.
    If the cost and expense will exceed the benefits, no drainage district can be organized. Laws 1879, pi 124, see. 10; Law's 1883, p. 82, sec. 7; Smith v. Duck Pond D. A. 54 Ind. 235; Etchison D. A. v. Hills, 40 id. 408.
    A majority of all the adult land owners must sign the petition for the formation of the district. Laws 1879, pp. 120, 121, 143, secs. 2, 3; Laws 1881, p. 87; Sharp v. Spier, 4 Hill, 87.
    The petition must provide a name and number for the proposed district. Law's 1879, p. 121, sec. 2; p. 145, sec. 9; p. 155, sec. 48.

      Assessments of benefits must be made by a jury,—not by the commissioners. Constitution 1870, art. 2, sec. 13; Eev. Stat. chap. 47, sec. 9; Laws 1879, p. 126, secs. 17, 18.
    ' Notice of meeting to hear objections must be served personally. Laws 1879, p. 147, sec. 16; Laws 1881, p. 90, sec. 16.
    As to the jurisdiction of a court of equity-to enjoin the collection of a tax or assessment not legally levied, see Drake v. Phillips, 40 Ill. 388; Cleghorn v. Postlewaite, 43 id. 428; Vieley v. Thompson, 44 id. 9; Darling v. Gunn, 50 id. 424; Cumberland County v. Webster, 53 id. 141; Kimball v. Trust Co. 89 id. 611; Irvin v. Railroad Co. 94 id. 105; Searing v. Heavysides, 106 id. 85; Allwood v. Cowen, 111 id. 481.
    Mr. F. E. Andrews, for the appellees:
    The legality of the formation of a corporation can be called in question only by a direct proceeding for that purpose. The only mode of taking advantage of illegalities and defects in their organization is by information in the nature of a quo warranto. Osborn v. People, 103 Ill. 224; Renwick v. Hall, 84 id. 162; Nunda v. Chrystal Lake, 79 id. 311; Trumbo v. People, 75 id. 561; People v. Newberry, 78 id. 41; Aldeman v. School District, 91 id. 179; Baker v. Backus, 32 id. 79; Town of Geneva v. Lake, 61 id. 397; Hyde Park v. Boyden, 94 id. 26.
    A court of chancery in this State has no jurisdiction to restrain the collection of a tax or special assessment, except, first, where the tax or special assessment itself is unauthorized by law; second, where the property is exempt from taxation ; or, third, where it is fraudulently assessed at too high a rate. DuPage County v. Jenks, 65 Ill. 275; Railroad Co. v. Frary, 22 id. 37; Railroad Co. v. County of McLean, 17 id. 291; Cook County v. Railroad Co. 35 id. 466; Swinney v. Beard, 71 id. 30; Porter v. Railroad Co. 76 id. 596; Railroad Co. v. Cole. 75 id. 592; Gage v. Evans, 90 id. 573; Ottawa v. Walter, 23 id. 610.

      A bill to enjoin a tax for a wrongful or illegal assessment, which fails to show an equitable excuse for not seeking relief against the assessment before either the township or county board of review, is bad. Johnson v. Roberts, 102 Ill. 655; Felsenthal v. Johnson, 104 id. 21; McBride v. Chicago, 22 id. 574; Ottawa v. Railroad Co. 25 id. 43; Pierce v. Kidder, 26 id. 358.
    ■ Thus it is seen that a court of equity will not restrain the collection of a tax or special assessment, except, first, where the same is unauthorized by law; second, where the property is exempt from the tax or assessment; or, third, where it is fraudulently assessed at too high a rate,—and even then the court will take jurisdiction only where the three following conditions concur:
    First—Where it is clearly made to appear that the party has been wrongfully assessed. Porter v. Railroad Co. 76 Ill. 596; Cage v. Bailey, 102 id. 17.
    Second—And that he will sustain irreparable injury. Porter v. Railroad Co. 76 Ill. 596; Cook County v. Railroad Co. 35 id. 466; Swinney v. Beard, 71 id. 30.
    Third—And that there is or has been no legal remedy. City of Ottawa v. Railroad Co. 25 Ill. 43; City of Chicago v. McBride, 22 id. 574; City of Peoria v. Kidder, 26 id. 358; Johnson v. Roberts, 102 id. 655; Felsenthal v. Johnson, 104 id. 21.
    An apparent exception to the three conditions last mentioned will be found in those cases where it is sought to prevent a cloud upon the title or to save a multiplicity of suits. It is to be observed, however, that when this relief is sought it will be granted only in those cases where the illegality or irregularity complained of exists dehors the record, and where the defects appear on the face of the record, equity will not interfere. Story’s Eq. Jur. sec. 700, and note.
    Where a remedy is provided by appeal or certiorari, an injunction will- not lie. McBride v. City of Chicago, 22 Ill. 577; Felsenthal v. Johnson, 104 id. 21; Johnson v. Roberts, 102 id. 655; City of Peoria v. Kidder, 26 id. 358.
   Mr. Chief Justice Mulkey

delivered the opinion of the Court:

The appellants, Horace H. Keigwin and others, filed a hill in the circuit court of Lee county, against the drainage commissioners of Hamilton township, in said county, to enjoin the collection of an assessment levied against the lands of appellants lying in Union Drainage District No. 1, in said township, for drainage purposes. A temporary injunction having been awarded in the case, the court, on motion of appellees, dissolved the same, and entered an order dismissing the bill for want of equity, which, on appeal, was affirmed by the Appellate Court for the Second District. The present appeal is from the judgment of affirmance in the Appellate Court.

■ The question for determination is, whether the case made by the bill is one of equitable cognizance. If, admitting all the facts stated in the bill, though inartificially charged, the complainants were not, as matter of law, entitled to equitable relief, then there was no error in dismissing the bill. It will only be necessary to advert to a few of the most important averm'ents in the bill, for the purpose of presenting the view we have taken of the case.

The bill, among other things, shows that the complainants are land owners and tax-payers in said Union District No. 1; that in February, 1883, a petition was filed in the office of the town clerk of said township, praying for an organization of a drainage district, specifying the boundaries thereof; that the petition was insufficient in law, and uncertain, etc.; that it failed to designate any name, and did not with sufficient certainty set out the objects and purposes of the district proposed to be organized; that sufficient notice of the filing of the petition was not given by the clerk; that the drainage commissioners pretend that they organized as a drainage district on the 31st of March, 1883, by name of Union District No. 1; that such pretended organization did not include all lands described in the petition, and included others not mentioned in it; that the commissioners made ‘no estimate of the cost and expenses of the work proposed to be done, and that no evidence was heard by them on that question; that the cost and expenses will exceed the benefits of the proposed drainage; that the assessment is uncertain and insufficient, and the amount is excessive and unreasonable; that insufficient notice was given of the meeting for the consideration of objections to the assessment; that the character and capacity of the work originally proposed to be done have since been changed;‘ that-the petitioners whose-names'appear to the petition were not a majority of the adult land owners in the district, etc.

The foregoing are among the most important charges in the bill, and such as we have not enumerated are of the same general character of those mentioned.

Conceding all the irregularities and defects in the organization and proceedings of the district complained of, the fact nevertheless is apparent upon the face of the bill itself, that it was organized and assumed the functions of a corporate body, and its right to do so, it is conceded, can not be questioned in this proceeding. Notwithstanding this concession on the part of appellants’ counsel, it is manifest that many of the averments in the bill directly assail the legality of the organization of the district as a corporate body, and if not made for this purpose, it is not perceived what object there could have been in making them. Be this as it may, since it is clear a court of chancery has no power or jurisdiction to entertain a bill for the purpose of determining whether a corporation cle facto was legally organized, it follows that the averments in question are to be disregarded, as redundant matter or mere surplusage. Those averments being eliminated from the bill, nothing remains to be considered but such as are supposed to affect the validity of the assessment.

It is clear from the charges in the bill relating to this branch of the subject, that numerous errors and irregularities were committed by the commissioners; but the question is, are they of such a character as to authorize a court of equity to interpose for the purpose of correcting them, for it is not every departure from the law by the corporate authorities, in a proceeding of the character sought to be impeached by the appellants in this ease, that will justify a court of equity in interposing for such a purpose. The law, however, affords ample redress for all errors and irregularities of the character complained of, if the objection is taken in the proper forum in apt time. If the tax or assessment sought to be enjoined is illegal merely by reason of some irregularity or defect in the proceeding not affecting the jurisdiction of the tribunal imposing it, equity will not interfere. To this general rule there is an apparent exception where the element of fraud or intentional wrong on the part of those imposing the tax or assessment enters into the case. Nothing, however, of that kind is charged in this case. That illegality in a tax or assessment which results from the fact that there is no law, general or special, authorizing it, will alone warrant a court of equity in enjoining its collection. This may occur where there is no law on the subject authorizing such a tax or assessment, or it may happen where the property taxed or assessed is by law exempt from taxation, or it may occur where the taxing tribunal has exceeded the limits of its power. In that case the tax will be bad for the excess only. The instances here suggested are not intended as limitations, but as illustrations of the principle, merely.

There are also apparent exceptions to the general rule above "announced, where the authorities imposing the tax, from some cause or other, have failed to obtain jurisdiction of the person of the defendant, or subject matter of the suit, but are nevertheless proceeding to sell the land of the defendant, and thereby create a cloud upon his title. In such case equity will enjoin the- proceeding and prevent the threatened injury. But the .supposed tax in that case is a mere nullity, and therefore comes within the general principle stated. That, however, is not the case here. The bill, in our opinion, fails to show a want of jurisdiction in the commissioners. It simply shows error. For this the law affords ample redress outside of a court of equity, and the jurisdiction is not concurrent. Besides the right of appeal given by the statute if the district was not duly organized and it assumed to act as a corporate body, or if, after having been- so organized, it was acting in disregard of the law and abusing its rights and franchises, an information in the nature of a quo warranto would lie against it. It is hardly necessary to add, that where the remedy at law is complete and adequate,'equity will not assume jurisdiction. The general view here taken is supported by the following authorities: Renwick et al. v. Hall, 84 Ill. 162; Osborn v. The People ex rel. 103 id. 224; Alderman et al. v. School Directors, 91 id. 179; DuPage County, v. Jenks et al. 65 id. 275; Chicago, Burlington and, Quincy Railroad Co. v. Frary et al. 22 id. 37; Illinois Central Railroad Co. v. McLean County, 17 id. 291; Gage et al. v. Evans, 90 id. 569; Swinney et al. v. Beard et al. 71 id. 27; Village of Nunda v. Village of Chrystal Lake, 79 id. 314; Cook County v. Chicago, Burlington and Quincy Railroad Co. 35 id. 466; Johnson v. Roberts, 102 id. 655; Felsenthal et al. v. Johnson, 104 id. 21; City of Peoria v. Kidder, 26 id. 351; McBride v. City of Chicago, 22 id. 574.

We have no doubt of the correctness of the ruling of the courts below, and the judgment will therefore be affirmed.

Judgineut affirmed.


author: Mr. Justice Tunnicliff

text:
    Thomas Hileman v. Virgil Beale.

      Filed at Mt. Vernon January 25, 1886.

    1. Appeal—by several—some not joining in the appeal bond—effect on the appeal. Two defendants joined in praying an appeal to the Appellate Court from a judgment against them in the circuit court, which was allowed upon condition that they enter into an appeal bond in a given sum, within thirty days, with security to be approved by the clerk of the circuit court. Only one of the defendants executed the bond, and he gave security which the clerk approved-. On motion, the Appellate Court dismissed the appeal because both defendants did not unite in the bond: Held, that the dismissal of the appeal was proper.
    2. Same—right of appeal generally—necessity of conforming to'terms prescribed. The right to an appeal is purely statutory, and a party to avail himself of the privilege must conform to the order of the court which the statute authorizes it to make. The court may authorize the clerk to approve the security, but he can not, with or without the order of the court, fix the terms of an appeal, or change or dispense with any that have been prescribed by the court. Either party to a judgment or decree may appeal separately, but to do so he must pray separately for the appeal, and obtain an order to that effect.
    Appeal from the- Appellate Court for the Fourth District; —heard in that court on appeal from the Circuit Court of Union county; the Hon. D. M. Browning, Judge, presiding.
    Mr. John M. Lansden, for the appellant.
    Mr. Andrew D. Duff, for the appellee.
   Mr. Justice Tunnicliff

delivered the opinion of the Court:

The appellee recovered a judgment in the Union circuit court, against appellant and Josiah Bean, jointly, for about $7000. Both joined in praying an appeal to the Appellate Court for the Fourth District, which was allowed upon condition of their entering into bond, in the sum of $10,000, within thirty days, with security to be approved by the clerk of the court. Both executed the appeal bond, but before it was approved by the clerk, Bean erased his name, and thereupon Beale procured other persons to sign the bond, and the same was then approved by the clerk. In the Appellate Court the appeal was dismissed, on motion of appellee, because the appeal bond was not signed by Bean, and, therefore, not in compliance with the order of the court in granting the appeal. Appellant brings the case to this court, and assigns for error in the Appellate Court the dismissal of the appeal.

This appeal was properly dismissed. It was held by this court as early as 1841, under a statute similar in all essential particulars to the one now in force, so far as regards the question here presented, that where a judgment was rendered against two or more, and an appeal is prayed by all, and granted upon condition of their entering into bond, the condition and order must be complied with, or the appeal can not be perfected. Carson v. Merle et al. 3 Scam. 168; and followed by Ryder et al. v. Stevenson, id. 539; Watson v. Thrall, 3 Gilm. 69; Johnson v. Barber, 4 id. 1.

The case of Willenborg et al. v. Murphy, Admr. 40 Ill. 46, relied upon by appellant, holds only that where there was a decree against only one of two defendants, but they having joined in praying an appeal and in the execution of the appeal bond, the bond will be good as to the one against whom the decree was rendered, and that a mis-reeital in the bond that the decree was against both instead of only one, could be corrected on cross-motion to amend, and thus obviate a dismissal of the appeal on motion made for that purpose. What else was said in the opinion as to the right of one to perfect an appeal from a judgment against two where they had joined instead of severing in their prayer for an appeal, was obiter dicta. In the subsequent case of Propeller Niagara v. Martin, 42 Ill. 106, it was-again held that where an appeal is granted on condition that the persons praying it shall execute the ■bond, the persons so named must execute it, and that filing a bond executed by others will not avail.

The right to an appeal is strictly statutory, and a party, to avail himself of this privilege, must conform to the order of the court which the statute authorizes it to prescribe. The clerk may, by order of the court made at the time the appeal is prayed for and entered of record, approve of the security that may be offered on the bond, but he can not, either with or without the order of the court, fix the terms of an appeal or change or dispense with any that have been made by the court. The 71st section of the Practice act provides that where a judgment or decree shall be rendered against two or more persons, either one shall be ¡Dermitted to remove such suit to the Appellate Court by appeal or writ of error, and for that purpose may, if necessary, use the names of the other parties to the suit. But this does not authorize the party praying an appeal to sign the name of other parties to the appeal bond. It is a very easy matter for parties to sever in their prayer for an appeal, or obtain an order that they or either be allowed to appeal, upon their or either of them executing bond in such sum and within such time, and conditioned as the court shall require, or as is provided by law, and with securities to be approved by the court or clerk. If litigants do not see proper to avail themselves of this right, they must content themselves with the prosecution of writs of error.

The judgment of the Appellate Court is affirmed.

Judgment affirmed.