text:
    Galena and Southern Wisconsin Railroad Co., for use, etc. v. Frederick Stahl.

      Filed at Ottawa May 12, 1882.

    1. Garnishment—debtor's obligations*given in pledge, and afterwards surrendered to him '. Railroad bonds of a railway company, not sold and negotiated, but merely pledged by it as collateral security, when discharged and surrendered are not property of the company liable to be reached by garnishment against ah officer of the company receipting for the same, but who in fact never received them.

      2. Same—whether property interest passed on sale under foreclosure, as to bonds given in pledge. Where a railway company pledged twenty-eight of its bonds as collateral security for a bank debt, which were included in a subsequent foreclosure decree in a suit for and in behalf of all the bondholders, and a committee of'certain holders of the bonds purchased the property, for the costs of the suit, for the benefit of the bondholders contributing towards the payment of the costs, not including the company to whom the twenty-eight bonds had been surrendered by the bank, and upon which bonds no assessment was paid, and a new company was formed by the persons interested in the purchase: Held, that the original company took no interest in the purchase as a holder of its own bonds so taken up, and had no property in the purchase liable to be reached by garnishment.
    3. Decree—construed—as to whether for payment of certain pledged bonds. A decree for the foreclosure of a railroad mortgage securing bonds of the company, found the sum due on twenty-eight bonds pledged by the company as collateral security for a debt of the company, which debt was also secured by a deed of trust, and ordered sale of the property, subject to the trust deed, for the whole sum found due on all the bonds, and that the bonds so pledged, or the judgment thereon in the foreclosure suit, and the personal property pledged, should be surrendered: Held, that the latter part of the decree neutralized the portion of it for the payment of the twenty-eight bonds, and, taken together, was no decree for their payment.

      4. Appeal—from Appellate Court—reviewing facts—-presumption as to finding by that court. On affirmance of a judgment or decree by the Appellate Court, in the absence of anything in the record showing what was the finding of fact, it will be taken to have been in the way most favorable for the support of the decision made, and this court will not review the facts.
    Appeal from the Appellate Court for the Second District ;—heard in that court on appeal from the Circuit Court of Jo Daviess county; the Hon. William Brown, Judge, presiding.
    This was a proceeding by garnishment, under the statute, against Frederick Stahl, president of the Galena and Southern Wisconsin Railroad Company, as garnishee, to subject a supposed interest held by the railroad company, acquired under the foreclosure sale of the company’s mortgaged property, to the payment of a judgment of Madison Y. Johnson against the company. On a hearing had before it, the circuit court discharged the garnishee, which judgment was affirmed on appeal to the Appellate Court for the Second District, and an appeal taken to this court.
    The supposed interest sought to be reached is claimed to arise in respect to twenty-eight bonds of the company, which had been deposited with the National Bank of Galena as collateral security for certain indebtedness of. the company to the bank. In 1872 the railroad company executed its mortgage upon its property and franchise to secure the payment of four hundred of its own bonds, of $1000 each, with interest. Twenty-eight of these bonds were deposited by the company at different times with the National Bank of Galena, to secure three notes given to the bank for the debt of the company. The first note was for $2276.65, dated April 29, 1875, and was signed individually by four persons, then directors of the company, for the collateral security of which the company deposited ten of the twenty-eight bonds. The next note was for $4671.20, dated June 30, 1877, and signed individually by the directors of the company. For the collateral security of this note the company deposited eleven of said twenty-eight bonds. The last note was for $2127.80, dated June 30, 1877, and signed by the company only, for the collateral security of which the company deposited the remaining seven of the twenty-eight bonds.
    In September, 1878, the railroad company executed to William W. Wagdin a deed of trust upon all of its property and franchises, to secure the payment of the three notes referred to, the bank continuing to retain the twenty-eight bonds as collateral security for the debt. At the February term, 1879, of the circuit court of Jo Daviess county, a decree of foreclosure of the original mortgage was entered of record, and an absolute sale, subject to the Wagdin deed of trust, was ordered of all the mortgaged property, to pay the mortgage bonds and interest. The bank proved up the twenty-eight bonds before the master, and in the decree a judgment was rendered on them, for “the use of the bank.” On May 3, 1879, a sale took place, under the decree, to a committee appointed to make the purchase by and for the bondholders, or a portion of them, who had entered into an agreement to form a new company, and assessed on each bond the' sum of five dollars, to pay the costs and expenses of the foreclosure. The mortgaged .property was bid in by this committee for $2000. The purchasers formed a new railroad company, subscribing in it as stock the amount due them from the old company, at fifty cents on the dollar. This new company elected officers, and operated the road up to April, 1880. In April, 1880, the Chicago and Northwestern Railroad Company purchased the stock of this new organization, and thus became the owner of the property. On the ,26th of the same month it paid the bank debt secured by the Wagdin deed of trust, and on the same day the garnishee, Stahl, as president of the Galena and Southern Wisconsin Railroad Company, gave to the bank his receipt, stating that the twenty-eight bonds deposited with the bank, as collateral security for such debt, had on that day all been returned back to that company. The garnishee answered that the company was entirely insolvent, and without any property since the foreclosure sale, and that at and since the service of process on him he had no property of the company in his possession, power or control. Issue was taken upon the truthfulness of the answer, and the foregoing facts were relied upon as sustaining the issue against the garnishee.
    Mr. M. Y. Johnson, for the appellant.
    Messrs. D. & J. J. Sheean, for the appellee.
   Mr. Justice Sheldon

delivered the opinion of the Court:

As in the decree of foreclosure judgment was rendered on these twenty-eight bonds for the sum of $36,360, the amount due upon them, and that- constituted a part of the whole amount of the decree upon which the mortgaged property was sold, it is contended by appellant that by the return by the bank to the company of these twenty-eight bonds there reverted back to the company so much of the property sold to satisfy the decree as was represented by $36,360 of the decree. This would be treating these twenty-eight bonds as if they were the bonds of some other party than the company,—as if they had, in fact, been actually returned to the company, and as if the sale had been for the full amount of the decree. But these twenty-eight bonds had never been sold and negotiated by the company,—they were merely pledged by the company as collateral security for the payment of the company’s three notes.' Both were but the promises of the company,—the notes the original promises, and the bonds the collateral promises,—and upon the payment of the notes, the original promises, the bonds, the collateral promises, were discharged, and the return of the latter to the company would vest in the company no property in the bonds, their own promises. There were, in fact, no bonds returned by the bank to the company. Upon the payment of the bank debt, the bank, for its protection, to show that it had accounted for the bonds to the railroad company depositing them as collateral security, required from the president of the company a receipt for the bonds as returned back by the bank to the railroad company. It was but a formality. There were no bonds returned. They were remaining in the hands of the master, where they had been léft by the bank on proving them up before him, when the decree was taken for the amount of the bonds, for “the use of the bank, ” and they were merged in that decree.

The sale was not for the amount of the mortgage indebtedness for which the decree was entered. The property sold but for $2000,—the amount only, as the garnishee answers, of the costs and expenses of the foreclosure, which sum was contributed and paid from the assessment of five dollars upon each bond, so that there was really no part of the decree for the mortgage indebtedness satisfied by the sale of the mortgaged property. Besides, the decree, at its close, recited that these twenty-eight bonds, with other personal property, had been pledged for the payment of the indebtedness secured to be paid by the deed of trust to William W. Wagdin,—that indebtedness, as before observed, being the bank debt,— and then says: “All which bonds and personal property remain pledged for the indebtedness in said deed of trust to William W. Wagdin, the bonds or the judgment upon them in this suit, and said personal property, to be surrendered. ” As the property was to be sold subject to this Wagdin deed of trust, it was a very proper provision that these twenty-eight bonds, or the judgment upon them, which were held but as collateral security for the indebtedness in the trust deed mentioned, should be surrendered. This provision in the decree neutralized the portion of it for the payment of these twenty-eight bonds, and taking the whole decree together, there was in reality no decree for the payment of those bonds, this final provision rendering the decree as if there had been no order in it for such payment.

But it is contended further, that the property was purchased at the foreclosure sale for, and on behalf of, all the bondholders, and that if the twenty-eight bonds, or the judgment upon them, can not be followed and availed of as the property of the company, yet the company has an interest in the property bought at the foreclosure sale, as purchaser, as being one of the bondholders for and on whose behalf the property was purchased. It is true that on the proceeding for the confirmation of the report of the foreclosure sale, it appears there was introduced in evidence the affidavit of the three committeemen who were appointed to bid in the property, which stated “that the committee was appointed to buy the mortgaged property at the sale, in trust for the bondholders, with power to bid it in, to the extent of the indebtedness as found by the decree, if necessary, and expressly providing that any purchase made by them should be in trust for the bondholders; that so far from any one expecting to get a valuable property for nothing, the property was bought for the benefit of all the bondholders, and is so held by the committee, ” and the report of the sale was thereupon confirmed by the court. The garnishee in his answer states that the purchase was made by the committee appointed by a part of the persons interested in the bonds; that the purchase was not made for all the bondholders, but only for such as subscribed a paper agreeing the purchase should be made by said committee, and that the interest of each purchaser should be in proportion to the bonds held by him; that these twenty-eight bonds were not represented in the purchase. This paper writing was not in evidence. One of the committee named testified on the hearing in this garnishment proceeding, that he was one of the committee to bid in the railroad for th.e new organization; that the committee turned the whole railroad and its property over to the new company when it was organized; that the purchase was for all that came in; that all the bondholders could come in; that these twenty-eight bonds did not come in, and some others, when they turned the property over to the new organization. It appears that nothing was done on behalf of these twenty-eight bonds, either in paying the assessment of five dollars on each bond to pay costs and expenses of foreclosure, or in coming in to the new company and taking stock therein for the amount found due upon the bonds, at one-half such amount,—the mode of formation of the new company.

If we take the ex pwrte affidavits introduced on the confirmation of the foreclosure sale as proper evidence in this case, we then have a conflict of evidence whether the purchase at that sale was for and on behalf of all the bondholders, or of only certain of the bondholders, not including the holders of these twenty-eight bonds. As on appeal from the Appellate Court we do not review any determination of controverted facts, but only questions of law, in the absence of anything in the record showing what was the finding of fact, we must take it to have been in the way most favorable for the support of the decision made; and in the present case, that the property was not purchased at the foreclosure sale for and on behalf of all the bondholders, but for and on behalf of a portion of them only, of which the holders of these twenty-eight bonds, or the Galena and Southern Wisconsin Railroad Company, did not form a part.

Not perceiving from the record that at the time of the service of process on the garnishee, or since, he was indebted to such railroad company, or had any effects or estate of the company in his possession, custody or charge, or that the company itself had any property whatever, the judgment of the Appellate Court must be affirmed.

Judgment affirmed.


source: Caselaw Access Project

author: Mr. Justice Scott

license: Public Domain

text:
    William Ilett et al. v. Thomas F. Collins et al.

      Filed at Ottawa May 12, 1882.

    1. Vendor’s lien—waived by taking collateral security. The vendor of real estate, by taking collateral or other security for the purchase money, waives his lien on the property sold.
    2. Same—lost when the debt is barred by limitation. Where the debt for the purchase money of real estate is barred by the Statute of Limitations, no vendor’s lien can exist that may be enforced.
    3. Limitation—when available by demurrer. Where the fact that a debt sought to be collected is barred by the Statute of Limitations, appears on the face of the bill, advantage may be taken of the bar on demurrer.
    4. Practice in chancery—setting aside dismissal of bill—how' far discretionary. On sustaining a demurrer to a bill in chancery the court below entered an order dismissing the bill. The complainant, at the same term of court, upon reasons assigned and supported by affidavit, moved the court to set aside the order of dismissal. The motion was denied, and upon questioning the propriety of this ruling, it was held to be within the sound discretion of the chancellor whether he will set aside such an order of dismissal, and there not appearing to have been any abuse of that discretion, the ruling was not subject to review.
    Writ of Error to the Appellate Court for the First District ;—heard in that court on appeal from the Superior Court of Cook county; the Hon. John A. Jameson, Judge, presiding.
    Mr. Morton Culver, for the plaintiffs in error :
    We claim the demurrer to the first hill ought not to have been sustained. The bill alleges fraud on the part of the vendee, and although this court has not passed directly on this point, still it intimates that a lien would be good. Conover v. Warren, 1 Gilm. 502; Manly v. Slason, 21 Vt. 277; 2 Washburn on Real Prop. 91, note.
    The amended bill, we think, comes directly within the rule laid down in this State, and therefore sustaining the demurrer thereto was error. Dyer v. Martin, 4 Scam. 146; Conover v. Warren, 1 Gilm. 498; Trustees, etc. v. Wright, 11 id. 603; Same v. Same, 12 id. 432; Cowl v. Varnum, 37 id. 181; Wilson v. Lyon, 51 id. 166; Carpenter v. Mitchell, 54 id. 126.
    The court erred in allowing the affidavit of Patrick McHugh to be read, on motion to set aside the order of dismissal, in the face of one of its own rules that no affidavit should be read unless submitted to the opposite party; and secondly, because it is a vicious practice. Mendell v. Kimball, 85 Ill. 582.
    If the bill, as amended, is good, then the court erred; and if the bill, as amended, is bad in some special point, advantage can only be taken of it, as a general rule, by special demurrer.
    Mr. P. McHugh, for the defendants in error :
    There is no conflict of authority that the vendor’s lien is gone, when independent security, either of property or the responsibility of a third person, is taken by the vendor.
      Conover v. Warren et al. 1 Gilm. 498; Cowl v. Varnum, 37 Ill. 181; Boynton v. Champlin, 42 id. 57; Kirkham v. Boston, 67 id. 599; Andrus v. Coleman, 82 id. 26.
    The staleness of the alleged lien renders the hill obnoxious to a demurrer. The vendor’s lien ceases when the debt, on account of which the lien is claimed, is barred by the statute. Jones on Mortgages, sec. 218; Borst v. Corey, 15 N. Y. 505 ; Trotters v. Erwin, 27 Miss. 772; 2 Sugden on Vendors, 391. note 7.
    Where it appears on the face of the bill (as in this suit) that the cause of action set out is barred by the Statute of Limitations, the defendant may take advantage of the bar by demurrer. Story’s Eq. Pl. secs. 484, 503, 571; Hoare v. Peck, 6 Simons, 51; Foster v. Hudgson, 19 Ves. 180; Wisner v. Barnett et al. 4 Wash. 631; Caldwell v. Montgomery, 8 Ga. 108.
   Mr. Justice Scott

delivered the opinion of the Court:

The bill in this case was brought by William Ilett and Edward Hartwell, in the Superior Court, against Thomas F. Collins, Emelie F. Collins, and others, to establish a vendor’s lien, and subject the property to the payment of the purchase money alleged to be still due and unpaid. A demurrer to the original and amended bills was sustained, and the bills dismissed. That decree, on the appeal of complainants, was affirmed in the Appellate Court for the First District, and now complainants bring the case to this court on error.

It is alleged in the original bill, that in June,' 1873, complainants, in pursuance with a verbal agreement made with Thomas F. Collins, conveyed the premises to Emelie F. Collins, wife of Thomas F. Collins, in consideration of the sum of $10,000, to be paid cash in hand; but at that time Thomas F. Collins represented he did not have the cash, and that he would pay the same within ninety days, and further represented he had gas stock of the par value of $10,000, and that he would and did deposit with complainants bonds for the same as collateral security for the purchase money of the property conveyed to his wife, and that after protracted litigation they had realized about $2000 on the gas stock, and that the balance of the purchase money remained unpaid. The prayer of the bill is, that complainants may have a vendor’s lien upon the property for the sum due them, and in default of payment of the amount that should be found due, that the premises should be sold in the usual mode of proceeding in such cases.

In sustaining the demurrer to the original bill there was no error. The rule of law is definitely settled, in this State, that where the vendor, on the sale of real estate, takes collateral or other security for the purchase money, it will be regarded as a waiver of any lien for the same on the property itself. Kirkham v. Boston, 67 Ill. 599, and eases there cited. It is apparent, from the allegations of the bill, that complainants relied on the bonds for gas stock as collateral security for the purchase money of the property conveyed to Mrs. Collins. It is so alleged, and the intention is plainly manifested by efforts of complainants to collect what they could on the gas bonds. Taking such collateral security was a clear waiver by the vendors of any lien on the property for the purchase money, and when once waived it can not, of course, be re-asserted by the vendors.

In the amended bill it is alleged no security was taken for the purchase money of the property conveyed to defendants, but that it all remains due and unpaid. There is, however, a sufficient reason why the demurrer to the amended bill was properly sustained. It will be noticed the conveyance to defendants was made in June, 1873, and the bill in this case was not brought until July, 1879. No lien was reserved in the deed, nor was the purchase money evidenced by any writing. It is clear, therefore, under the law of this State, the debt itself is barred by the Statute of Limitations, and where the debt is barred no lien can exist that can be enforced. The fact the debt is barred by the statute appearing on the face of the bill, advantage may be taken of the bar on demurrer. Story’s Eq. Pl. sec. 484; Foster v. Hodson, 19 Ves. 180; Hoare v. Peck, 6 Simons, 51.

It was a matter within the sound discretion of the court whether it would set aside the order of dismissal of the bill, on the motion of complainants, made at the 'same term of court at which the order was made, for the reasons set forth in the affidavits filed in support of the motion. There was certainly no abuse of the discretion with which courts are clothed in such matters, and the action of the court in that regard is not subject to review in this court. But aside from this view of the law, on looking into the affidavits filed in support, as well as those against, the motion, as may be done, it appears the decision of the court was entirely proper.

The judgment of the Appellate Court must be affirmed.

Judgment affirmed.


author: Mr. Justice Mulkey Mr. Justice Walker : Mr. Justice Scott :

text:
    William Wilmerton v. William N. Phillips.

      Filed at Ottawa May 12, 1882.

      1. Removing cloud upon title—reimbursing purchaser at tax sale— effect of illegality of tax. Upon bill in chancery to remove a cloud upon the title to land, the alleged cloud consisting of a tax deed, the defendant claiming under the tax deed, and who was the purchaser at the sale of the land for taxes, insisted, if his title should be set aside he ought at least to be reimbursed the amount he had paid at the tax sale. The taxes for the non-payment of which the land was sold had been assessed upon personal property in a district in which the property was not liable to the assessment, so there was no obligation on the part of the owner of the land to pay them. Hence the entire proceedings concerning the levy of the tax and the sale of the land therefor were void, and the purchaser at the tax sale was not entitied to be reimbursed the amount he paid at that sale, as a condition to the granting of the-relief sought by the bill.
    2. Purchasers at tax sales are bound to know at their peril that the supposed delinquent is in truth and in fact a delinquent,—that he has been lawfully assessed, and has failed to make payment.
    Appeal from the Circuit Court of Mercer county; the Hon. Arthur A. Smith, Judge, presiding.
    Messrs. Taliaferro & Connell, for the appellant :
    Where the owner of land seeks to have a tax title on the same set aside as a cloud on his title, he must first pay or offer to pay the amount of the sale, with interest thereon, and the subsequent taxes paid by the holder of the tax certificate or deed. Farwell v. Harding, 96 Ill. 32; Phelps et al. v. Harding, 87 id. 442.
    If the personal tax was wrongfully assessed, the remedy was before the town board of review, or before the county board. Hurd’s Stat. 1881, ch. 120, secs. 86, 97.
    The appellee could, and ought to, have appeared before the county court on the day set for taking judgment against the land for taxes. Hurd’s Stat. 1881, sec. 191.
    Appellee was notified of the extension of this tax against the lot, in accordance with sec. 183 of the Revenue law, and wrote a letter to the collector absolutely refusing to pay the tax, and threatening to prosecute the collector if he sold the land for the taxes. He can not sleep upon his rights, and. let all legal opportunities pass given him to correct an illegal assessment, and then claim the right to take the incumbrance off without reimbursing the purchaser for the moneys paid by him, without notice of any defect in the proceedings.
    Messrs. Bassett & Wharton, for the appellee :
    The only point seriously urged by appellant is, that the court set aside the tax deed without requiring appellee to pay him the money he had paid at the tax sale. . The eases cited were all based on that of Reed v. Tyler, 56 Ill. 288.

      In all these cases the land was sold for taxes due on the assessment of the land, and the titles were set aside because the proceedings to sell the land were irregular or illegal. In those cases the owner was benefited by the payment of taxes which were a lien on his land. But these cases have no application here, because the assessment here and the levy of the tax were without any foundation, and were a fraud on appellee. He had no property in the township liable to assessment, and knew nothing of the assessment until long after the warrant was issued for the collection of the taxes. Having no property in the town liable to assessment, the assessment and levy of taxes will be enjoined by the courts, without the imposition of terms. Union Trust Co. v. Webber, 86 Ill. 502; Kimball v. Trust Co. 89 id. 611; Bank of Shawneetown v. Cooley, 77 id. 622; Supervisors v. Webber, 53 id. 141.

      Lee v. Ruggles, 52 Ill. 428, is a case precisely in point, and the court distinguishes that case from Reed v. Tyler. The same principle is sustained in Conwell v. Watkins, 71 Ill. 489; Hodgen v. Gettings, 58 id. 431; Stout v. Cook, 37 id. 285; Forman v. Stickney, 77 id. 579; Lawrence v. Miller, 86 id. 502; Campbell v. McCohen, 41 id. 45; Conklin v. Foster, 57 id. 104.
    As to the judgment there was only constructive service. They did not appear and defend, and therefore are not estopped from now denying the validity of the tax and judgment. Belleville Nail Co. v. Webber, 98 Ill. 399; Tucker v. Conwell, 67 id. 552; Flower v. Elwood, 66 id. 434.
    The appellant can not claim that he was an innocent purchaser. The rule of caveat emptor applies. Conwell v. Watkins, 71 Ill. 484.
   Mr. Justice Mulkey

delivered the opinion of the Court:

This is a bill to set aside a tax deed as a cloud upon the title of appellee, to a tract of land situate in North Henderson township, Mercer county, this State.

The uncontroverted facts are, that the assessor of said township made a personal property assessment against Phillips, Carmichael & Co., for the year 1875, upon which a tax of $99 was levied against them. This tax not having been paid, the same was extended against the land in controversy, which belonged to appellee, who was at the time a member of the firm of Phillips, Carmichael & Co. The land was subsequently sold to satisfy this tax, appellant becoming the purchaser, who in due time received a tax deed therefor. The firm of Phillips, Carmichael & Co., at the time of the assessment and tax proceedings, was doing business in Chicago, and was composed of appellee, Thomas S. Phillips, and George S. Carmichael, appellee being a resident of Gales-burg, Knox county, and the other members, of Chicago, where the partnership business was carried on. Neither the firm nor appellee, at the time of said assessment, was the owner of any personal estate or property of any desciúption in said township, nor was said firm, or either of the members thereof, doing business there at that time, nor were they, or either of them, liable to the assessment made against them. Under these facts the circuit court of Mei'cer county held the tax proceedings, culminating in a tax deed to appellee’s land, unauthorized and void, and thereupon entered a decree accordingly.

Appellant brings the case here by • appeal, and asks a reversal, on the ground appellee did not, by his bill or otherwise, offer to reimburse appellant the amount paid by him for the land at the tax sale, and in support of this position his counsel cite Farwell v. Harding, 96 Ill. 32; Phelps v. Harding, 87 id. 442; Barnett v. Cline, 60 id. 205.

The cases relied on are not applicable to the facts in this case. Had appellee been under any legal liability or obligation to pay the tax for which the land in this case was sold, then the above authorities would he in point, but such is not the case. As we have already seen, neither the firm of Phillips, Carmichael & Co., nor any of its members, were liable to a personal tax assessment in the township, hence the assessment, levy, and all proceedings relating to the matter, were and are absolutely null and void. And appellee having con-. sequently incurred no liability with respect to the same, it would be simply a tax upon justice to deny him relief except upon the condition that he should pay a sum of money that he never owed, and which he was therefore under no legal or moral obligation to pay. Purchasers at tax sales, while availing themselves of the opportunity of obtaining highly remunerative profits on small investments, are bound to know at their peril, when purchasing at a tax sale, that the supposed delinquent is in truth and in fact a delinquent,—that he has been lawfully assessed, and has failed to make payment, etc.

The decree of the circuit court was clearly right, and will therefore be affirmed.

Decree affirmed.

Mr. Justice Walker :

There is no proof that complainant was the owner of the land, and he had no right to relief unless he proved he held title. A mere stranger has no right to inter-meddle with other men’s titles or purchases of land for taxes.

Mr. Justice Scott :

I do not concur either in the reasoning or the conclusion of the majority opinion of the court.


text:
    Adam Smith v. The People of the State of Illinois.

      Filed at Ottawa May 12, 1882.

    1. New trial—m a criminal case. The guilt or innocence of the accused in a criminal case is always a question for the jury, and their finding will seldom be disturbed unless when it is manifest that they have been misled by the instructions of the court to the prejudice of the defendant.

      2. LARCENY-possession of stolen goods as evidence of guilt. Possession of property recently stolen is prima facie evidence of guilt, and is sufficient to warrant a conviction for its larceny, unless the attending circumstances or other evidence so far overcome the presumption thus raised as to create a reasonable doubt of the guilt of the accused, when an acquittal should follow.
    3. Instruction—whether it assumes facts. On the trial of one for larceny of goods, the possession of which by the accused four days after the theft was not disputed, the court instructed the jury “that the possession of stolen property soon after the commission of the theft is prima facie evidence that the person in whose possession it is found is guilty of the wrongful taking, and is sufficient to warrant a conviction, unless the other evidence in the case or the surrounding circumstances are such as to raise a reasonable doubt of such guilt:” Held, that the instruction was proper, and not open to the objection that it assumed the existence of any fact necessary to be proven which was disputed on the trial.
    Writ of Error to the Criminal Court of Cook county ; the Hon. Murray F. Tuley, Judge, presiding.
    Messrs. Forrest & May, for the plaintiff in error:
    It is error to charge the jury that the possession of property recently stolen is prima facie evidence of guilt. The rule is, that the possession of property recently stolen is evidence against the accused, which, like other evidence, is to be taken and considered by the jury in connection with the other testimony in the case. Thompson v. State, 43 Texas, 268; 2 Bishop’s Crim. Procedure, (3d ed.) sec. 740; State v. Hodge, 50 N. H. 510; Smith v. State, 58 Ind. 340.
    That such possession does not change the burden of proof to the defendant, see 2 Bishop’s Crim. Procedure, sec. 743; Stover v. People, 56 N. Y. 315; State v. Hodge, 50 N. H. 517.
    Mr. Luther Laflin Mills, State’s Attorney of Cook county, and Mr. Geo. C. Ingham, Assistant State’s Attorney, for the People.:
    Whatever may be the law in some States, it is settled, in this as well as many other States, that the recent possession of stolen property, unexplained, is of itself prima facie evidence of guilt. Comfort v. People, 54 Ill. 404.
    The instruction is almost in the very language of the court in the case cited.
    The possession of fruits of crime recently after its commission is prima facie evidence of guilty possession, and if unexplained, is conclusive. This presumption applies to other crimes, such as arson, murder accompanied by robbery, etc. 1 Greenleaf on Evidence, see. 34; State v. Cassidy, 12 Kan. 550; 1 Hawley’s Am. Crim. Rep. 568; Tucker v. State, 57 Ga. 456; Belote’s case, 36 Miss. 120; Fosters. State, 52 id. 695 ; Smathers v. State, 46 Ind. 450; Crilly v. State, 20 Wis. 231; State v. Williams, 54 Mo. 170; Jones v. State, 12 Ill. 259; State v. Weston, 9 Conn. 527; State v. Brewster, 7 Vt. 118; Maynard v. State, 46 Ala. 85; Commonwealth v. Randall, 119 Mass. 107; State v. Merrick, 19 Maine, 398; State v. Turner, 65 N. C. 592.
   Mr. Justice Scott

delivered the opinion of the Court:

Accused was indicted for larceny of a wagon, and on a trial had in the Criminal Court of Cook county, was found guilty, and sentenced to a term of imprisonment in the penitentiary. Evidence was introduced tending to establish facts that show his guilt, and it is not claimed that on the testimony found in the record a new trial should be awarded had there been no error in the instructions given on behalf of the prosecution calculated to mislead the jury. The guilt or innocence of the accused is always a question for the jury, and their finding will seldom be disturbed, unless where it is manifest they have been misled by the instructions of the court to the prejudice of defendant.

The instruction given on behalf of the People, the correctness of which is called in question both in the argument and on the assignment of error, is as follows:

“The court instructs the jury that the possession of stolen property soon after the commission of the theft is prima facie evidence that the person in whose possession it is found is guilty of the wrongful taking, and is sufficient to warrant a conviction, unless the other evidence in the case or the surrounding circumstances are such as to raise a reasonable doubt of such guilt. ”

There is no doubt there are contradictory decisions on this branch of the law, but in this State it is certainly settled that possession of property recently stolen is prima facie evidence of guilt, and is sufficient to warrant a conviction unless the attending circumstances or other evidence so far overcome the presumption thus raised as to create a reasonable doubt of the guilt of the accused, when, of course, an. acquittal should follow. This principle is so definitely determined by the decision of this court in Comfort v. The People, 54 Ill. 404, it need not now be discussed as a new question.

The instruction as given states the law nearly in the precise terms it is declared by this court to be. N,or is it subject to the objection it assumes any fact to be proved that was a matter of contention at the trial. It can not be said it assumes the existence of any fact, unless it was the possession of the property recently after it was stolen. That fact was proven by the People, and the accused admitted it came to his possession within four days after it was proven to have been stolen from the owner. Even if the instruction assumes the property was found in the possession of defendant shortly after it was stolen, that fact was not in dispute, and it certainly did the accused no harm. It was fairly left to the jury to find whether the other evidence and circumstances proven either by defendant or the People, sufficiently overcame the presumption of guilt raised by proof of possession of the stolen property shortly after the theft had been committed.

The facts the evidence tends to establish show the guilt of the accused past all reasonable doubt, and as the law applicable to the facts was fairly given to the jury, there is no ground for setting aside the verdict. The judgment will be affirmed.

Judgment affirmed.

Mr. Justice Dickey : I think it error to charge a jury that any given circumstance is “sufficient to warrant a conviction. ” That is always a question of fact, not of law.


author: Mr. Justice Scholfield

text:
    Peter Papin et al. v. Albert E. Goodrich et al.

      Filed at Ottawa May 12, 1882.

    1. Contract—sale of land—as to precedent or contemporaneous acts of the vendor and purchaser, respectively. Where a written offer to purchase real estate is accepted, the purchaser proposing to pay $35,000 in cash on or before a certain day named, and to assume the payment of a mortgage on the property, possession to be given on the cash payment, and a mortgage to be given on the premises for the deferred payments, the payment of the $35,000 must precede the right of the purchaser to receive a deed, and the execution of such deed must precede or be contemporaneous with the execution of the mortgage to secure the deferred payments.
    2. Same—excuse for non-performance by purchaser—use of insulting language by vendor—inability of vendor to perform. The use of .insulting, disagreeable and irritating language by a vendor of real estate, when approached on the subject of the contract by the purchaser, affords no excuse for any relaxation on the part of the latter or his assignee in preparing and offering to carry out the contract. If the vendor, before the day of payment, has put it out of his power to perform his part of the contract, payment, or an offer to pay unqualifiedly, would, doubtless, be excused.
    3. Same—failure on part of vendor to fix the time for doing an act connected with sale—as excusing tender of payment by purchaser on the day fixed therefor. In a contract for the sale of a hotel and all the furniture belonging thereto, at a definite and fixed price, an inventory of the furniture to be furnished by the vendor, in which contract a payment is provided to be made on or before a day named, a refusal on the part of the vendor to set a time for talcing the inventory affords no excuse for not making the pajunent at the proper time, or an unqualified tender of the same, as the taking of the inventory could have nothing to do with fixing and making more definite the duties of either party, such as determining the price, or amount of payments. In such case the making of the inventory is merely a separation and identification of the property, and a part of the surrendering of .possession.
    4. Same—right of purchaser to inspect deed before paying purchase money. In the absence of any clause in a contract of purchase of property to that effect, the purchaser will have no right to a personal inspection of the vendor’s deed before making the payment upon which he is to receive a conveyance.
    5. Same—proof of custom on that subject. There is no error in refusing proof of a custom in a particular place to afford a purchaser of land an opportunity to inspect his vendor’s deed before making payment, when no offer is made to show that it was uniform, long established, generally acquiesced in, and so well known as to induce the belief that the parties contracted with reference to it.
    6. Same—refusal of vendor to permit purchaser to inspect deed before payment—effect on the rights of the parties. Where, by a contract, the purchaser of real estate is required on a certain day to make a payment, and the vendor to convey, the purchaser; on the day before the day fixed, offered to make the payment upon inspection of the vendor’s deed, if it should prove satisfactory, and the vendor refused to allow an inspection, though stating he had the same prepared ready for delivery on payment, the court say they do not hold the vendor made a sufficient tender of a deed, or manifested such a willingness to comply with his contract as to have authorized him then, on the refusal of the purchaser to perform, to have filed a bill to cancel the contract.
    7. Under a contract for the sale and conveyance of real estate, the purchaser was to make a payment on or before a day named, when the vendor was to deliver the conveyance. On the day preceding this day, the assignee of the purchaser, having the money necessary, offered to pay it, if, upon inspection of the deed, it should prove satisfactory, which inspection the vendor refused, but offered to deliver the same on deposit of the money with his hanker, which the assignee refused to do: Held, that neither party was relieved from his obligation under the contract by what then transpired.
    8. Same—as to furnishing abstract of title—specific reason for refusal of purchaser to perform. Where a contract of purchase provides that the vendor is to furnish an abstract of title, and notice is given where such abstract may be found and inspected, the failure of the vendor to furnish the same, when no objection is urged at the time, will not authorize the purchaser to rescind, and his refusal to perform is placed on another ground which is untenable.
    9. Practice—time to object. Where no objection is taken in the court below to amending a bill for the specific performance of a contract for the sale of real estate, so as to seek a cancellation of the contract, it can not be urged as a ground of error in a court of review.

      10. Amendment—of bill changing prayer for relief of a different land. There is no error in allowing an amendment of a bill by a vendor of property for the specific performance of the contract by changing the prayer for a cancellation of the contract. The defendant has no vested right in the phraseology of the bill.
    Appeal from the Appellate Court for the First District;— heard in that court on appeal from the Superior Court of Cook county; the Hon. George Gardner, Judge, presiding.
    Mr. James Felch, and Mr. Geo. L. Thatcher, for the appellants :
    A party, to have a specific performance of a contract, or its rescission by the court for the failure of the other party to perform, must be in no default himself. Piper v. Stocker et al. 2 Grant’s Cases, 116; Boon v. Missouri Iron Co. 17 How. 343; Doyle v. Teas, 4 Scam. 265; Stone v. Sprague, 20 Barb. 509; Bellinger v. Kitts, 6 id. 274; Henry v. Raiman, 25 Pa. St. 354; Hungate v. Rankin, 20 Ill. 642; Bourland v. Sickles, 26 id. 498; Clark v. Weis, 87 id. 440; Hough v. Rawson, 17 id. 588; Smith v. Lamb, 26 id. 396; State v. McCauley, 15 Cal. 458.
    The complainant should not have been allowed, by way of amendment, to wholly change the object of his bill, by withdrawing his offer to perform and ask for a rescission of the contract. Shields v. Barrow, 17 How. 143; Purvill v. McKinley, 9 Gratt. 1.
    If a plaintiff makes a gratuitous offer by his bill, he can not afterwards withdraw it. 1 Daniell’s Chancery Practice, 387.
    Messrs. Cook & Upton, for the appellees :
    A vendee is not entitled to a deed until he has made payment in full, unless the contract provides otherwise. Terry v. George, 37 Miss. 539; Doyle v. Teas, 4 Scam. 203; Headley v. Shaiu, 39 Ill. 354; Robb v. Montgomery, 20 Johns. 15; Sugden on Vendors, 241, note e.

      It is the duty of the vendor to prepare the deed, but he is entitled to a reasonable time to do so after demand, and is not in default until called upon for it a second time. Fuller v. Williams, 7 Cow. 57; Fuller v. Hubbard, 6 id. 1; Connelly v. Pierce, 7 Wend. 129; Wells v. Smith, 2 Edw. Ch. 78.
    That an amendment of a bill for a specific performance to one asking a rescission of the contract, is proper, see Jefferson v. Kennard, 77 Ill. 246.
   Mr. Justice Scholfield

delivered the opinion of the Court:

This was a hill in chancery, by Albert E. Goodrich, against Peter Papin, David H. Keyes and Enos Slosson, to cancel a certain contract for the sale of what is known as the “Gardner House, ” in the city of Chicago, evidenced by the following instruments in writing:

“South Franklin Street, Chicago, Sept. 27, ’80. “A. E. Goodrich, Esq., City:
“Dear Sir—From the interviews and conferences I had with your agent, E. Slosson, Esq., and yourself, upon the negotiation for the purchase of the Gardner House property arid appurtenances, of which you are the owner, I hereby make you the following proposition: To purchase said property from you for the sum of two hundred and twenty thousand ($220,000) dollars, abstracts of title to be furnished by you, and payments to be made as follows: Thirty-five thousand ($35,000) cash, on or before January 1, 1881, and to enter into possession of said property as soon as the said cash payment is made, with all appurtenances, furniture, utensils and fixtures as now exist in the house, of which an inventory to be made collectively, between our respective agents, as soon as you have accepted my proposition; said purchase subject to a first mortgage of ninety thousand ($90,000) dollars on the building and furniture of the hotel, and to be paid from the purchase money on the first of October, 1886, and bearing six per cent interest per annum; and by taking possession of the premises on or before the first day of January, 1881, after the first cash payment of $35,000 is made. I will give, or cause to be given, a second mortgage on said building and appurtenances for the balance, one hundred thousand ($100,000) dollars, of which the payment is to be made as follows, said mortgage to be released gradually, as the payments are made: $10,000 on or before January 1, 1882; $10,000 on or before- January 1, 1883; $10,000 on or before January 1, 1884; $10,000 on or before January 1, 1885; $10,000 on or before January 1, 1887; $10,000 on or before January 1, 1888; $10,000 on or before January 1, 1889; $10,000 on or before January 1, 1890; $10,000 on or before January 1, 1891; $10,000 on or before January 1, 1892. Total, $100,000, the whole bearing six per cent interest (interest payable semi-annually) on all deferred payments until paid for.
Respectfully,
Peter Papin.
“ (Interest payable semi-annually); payments to be applied as A. E. Goodrich or assignee may direct.
A. E. Goodrich.
“Accepted as above. ,,
,Peter Papin.

By the terms of this contract the payment of the $35,000 must precede the execution of a deed by Goodrich and wife to Papin, and, necessarily, the execution of that deed must precede, or .be concurrent with, the execution of the mortgage by Papin to Goodrich to secure the deferred payments, for until he had title conveyed to him he could have nothing to mortgage.

We are unable to say the courts below were unwarranted by the evidence in finding that, after Papin had assigned his interest in the contract to Keyes, and about the 20th of January, 1881, complainant was ready and willing, and offered, to comply with his part of the contract, but that Keyes then refused to carry out the contract on the other side, alleging that it was then too late. This is shown in substance by the testimony of Cook and Philo, and we are unable to say that their testimony is overcome by other evidence on the part of the defendants. The real controversy, as we understand the arguments of counsel, is, whether prior to that time Papin or Keyes had been ready and willing to carry out the contract, and offered to do so, but Goodrich was unable or unwilling, and on his part refused to do so, and thus justified the subsequent refusal on them part..

It is shown by Douglass, an attorney for Papin,. that on the Wednesday next preceding the last day of December, 1880, which was, probably, the 29th of the month, he called upon Goodrich to have him set a day for the meeting of the parties to carry out or execute the provisions of the contract, but that Goodrich refused to name a day, and was insulting and denunciatory in his language. Goodrich then expressed the belief that those professing to wish to carry out the contract had no money, and said that he knew Papin was a scoundrel. However disagreeable and irritating this language of Goodrich was, it afforded no excuse for any relaxation on the part of Papin, or those wishing to occupy his place in the contract, in preparing and offering to carry out the contract. There needed no day to be fixed for the meeting of the parties to carry out or execute the contract. The contract itself provided the $35,000 in cash must be paid on or before the first day of January, 1881, and possession was to be taken after that payment was made. Until that payment was made, Goodrich had nothing to do. It is true the contract provided for the taking of an inventory of the furniture, etc., in the house, but since this had nothing to do with fixing and making more definite the duties of either party to the contract,—such as determining prices or amounts of payments,—we must presume it was only intended as a means of identification,—separating or setting apart this particular property,—and so would, necessarily, have to be a part of the process or operation of surrendering possession of the property. It was the duty of Papin, or those representing him, when ready to carry out the contract, on or before the first of January, 1881, to go to Goodrich and make the payment, or at least offer unqualifiedly to do so. If Goodrich meanwhile had put it out of his power to carry out the contract, this would doubtless be excused, but that is not pretended here.

The. proof shows that on the 31st of December, 1880, Keyes procured $35,000, which was carried to the Gardner House, and Goodrich was then notified that the money was ready to be paid to him; that Goodrich proposed that the parties should go with him to the First National Bank, and the transaction could be closed up there and the papers passed. The parties all then went to the First National Bank. Goodrich seems to have been excited, and somewhat intemperate in speech, and he expressed doubts about the other party really having the money with which to make the payment of the $35,000. He claimed to have his deed ready, and they asked to see it, but he refused. They professed to be ready and willing, and the proof shows they had with them $35,000, to make that payment, if, on inspecting his • deed, it should prove to be satisfactory. He requested that they would pay the money into the hands of the cashier of the First National Bank, to whom there seems to have been no personal objection, saying that he would then deliver the deed. This they refused to do.

Had Papin, or those representing him, the right to inspect the deed of Goodrich for the property before paying the $35,000? It has been seen the contract contains no provision to that effect, and that even the execution of a deed is not expressly provided for, but is simply inferred as a conclusion of law; but that inference is also that the money is first to be paid. Until after that is done possession is not to be given, and no legal duty arises to execute a deed. Clearly there can be no right to inspect a deed before there is a legal duty on the opposite party to have it made, and ready to be delivered.

An offer was made to prove that there was a custom in Chicago to afford purchasers an opportunity to inspect the deed before requiring them to make payment. This was properly excluded by the court. There was no offer to prove that it was uniform, long established, generally acquiesced in, and so well known as to induce the belief that the parties contracted with reference to it. Turner v. Dawson et al. 50 Ill. 85; Packard et al. v. Van Schoick, 58 id. 81. Besides, it is impossible there could be a custom to allow a party to inspect a deed at a time when there is no legal duty to have such deed made and ready to be delivered.

It is not to be understood that, under the evidence, we hold that Goodrich made a sufficient tender of a deed, or manifested such a willingness to go on and comply with his contract at that time, as to have authorized him then to have filed a bill to cancel. In that event the burden would have been upon him, and it would have then been necessary for him to have shown ability, readiness, willingness, etc., to carry out the contract. But the defendants here seek to justify a refusal subsequently to comply with the contract, on the ground that' what they here did exonerated them from all further obligations in that regard, and necessarily, therefore, the burden is upon them to show that what they claim is such exoneration, is so in fact. ■ The principle that ability and readiness to perform, and notice thereof to the opposite party, excuses actual performance or a formal tender, can have no application, because it was neither shown that Goodrich was unable to perform, nor that he excused or waived the defendant’s performance. In our opinion neither party, by what transpired on the 31st of December, 1880, was relieved from his obligations under the contract. Thereafter the contract stood as if nothing had been done or said at that time.

Some objection is taken that the abstract was not properly furnished or presented by Goodrich. It is sufficient to say, in that respect, no objection of that' kind was urged at the time. The abstract was in the hands of Wright & Tyrrell, and held by them because they held the loan on the property of $90,000, which Papin, by the terms of the contract, was bound to pay. Keyes was notified where the abstract was, and that it could be examined there at any time. 'No objection was made to this, but Goodrich was notified that he. declined to carry the contract out because it was then too late.

The bill, as first filed, prayed for specific performance of the contract, but by a subsequent amendment, made by leave of the court, the prayer was changed to that of cancellation of the contract. This is now urged as error. No objection of this kind was interposed in the circuit court. On the contrary, the defendants there answered the bill as amended, and tried the case without bringing forward this objection. It is now too late to urge it, even if it were, if interposed in apt time, a valid objection. But we do not 'see why, treating it as a question properly before us, the amendment was not properly allowed. The defendants had no vested rights in the phraseology or form of the bill. Jefferson v. Kennard, 77 Ill. 246.

We perceive no cause to disturb the decree of the circuit court. The decree of the Appellate Court is affirmed.

Decree affirmed.


author: Per Curiam :

text:
    Margaret Ennis v. Lawrence M. Ennis et al.

      Filed at Ottawa May 12, 1882.

    1. Writ of error—to the probate court. A writ of error will not lie from this court to a probate court in cases where an appeal from the judgment is allowed to the circuit court.
    2. Appear—.fromprobate court to circuit cou/rt. An appeal being given from the final orders, judgments, etc., of the probate court to the circuit court, except in proceedings of administrators to sell land to pay debts, this court will not entertain a writ of error to the probate court to review an'order dividing a widow’s award between herself and her minor children.
    Writ of Error to the Probate Court of Cook county; the Hon. Joshua C. Knickerbocker, Judge, presiding.
    Messrs. M. A. Rorke & Son, for the plaintiff
    in error, on the question of jurisdiction, made the following points:
    The writ of error in this case will lie as a common law writ of error, and under the constitution. None could be issued out of the Appellate Court. Haines v. People, 97 Ill. 161; Hall v. Thode, 75 id. 173; Peak v. People, 76 id. 289; Village of Hyde Park v. Dunham, 85 id. 569; Stuart v. People, 3 Scam. 395; Story v. People, 79 Ill. 45. See, also, Unknown Heirs of Langworthy v. Baker, 23 Ill. 484; Fitzpatrick v. City of Joliet, 87 id. 58.
    No appeal is allowed Bom the decision of the probate court illegally apportioning a widow’s award, to the circuit court. Probate Court act, Hurd’s Stat. 1881, p. 353, sec. 11; Lill v. Brant, 1 Bradw. 266; Haines v. People, 97 Ill. 162; Peak v. People, 71 id. 278; Shirk v. Trainer, 20 id. 301; Beesman v. City of Peoria, 16 id. 484; Williams v. Bladenship, 12 id. 122; Gunn v. Rogers, 4 Gilm. 131; Allen v. Belcher, 3 id. 594.

      No appeal could have been taken under section 68 of the Administration act, as that relates to cases of claims allowed or rejected, and applies only to county courts.
    The writ of error could not have been sued out of the Appellate Court. Art. 6, sec. 11, relating to Appellate Courts, contains no provision in regard to appeals or writs of error to or from the Appellate Courts, to or from the probate court.
    It follows that when the probate court exceeds its jurisdiction, and enters a final order depriving a person of property rights, and no mode of appeal exists, as in this case, a writ of error lies, by virtue of the constitution and the common law, from this court. Haines v. People, 97 Ill. 172; Hall v. Thode, 75 id. 173.
    Mr. Lawrence M. Ennis, and Mr. Frank W. Walkee, for the defendants in error :
    The writ of error will not lie, an appeal to the circuit court being allowed by statute from the orders complained of. Haines v. People, 97 Ill. 161; Holden v. Herkimer, 53 id. 258; Hobson et al. v. Paine et al. 40 id. 25; Rev. Stat. chap. 37, see. 226.
    The Supreme Court has no jurisdiction even though the writ would lie, as the question is in neither a criminal proceeding, nor does it involve a franchise, a freehold, or the validity of a statute. Young et al. v. Sturges, 91 Ill. 221; Gross v. People, 95 id. 366; Schissler v. People, 93 id. 472; Holtz v. People, 92 id. 426; Meeks v. Leach, 91 id. 323; Fleischman v. Walker, 91 id. 320.
    If the judge (as claimed by plaintiff in error) acted in a summary manner, or had no jurisdiction, a writ of error will not lie, but a certiorari is the proper remedy. Haines v. People, supra; Wilkinson v. People, 13 Ill. 660; Chicago and Rock Island R. R. Co. v. Fell, 22 id. 333; Chicago and Rock Island R. R. Co. v. Whipple, 22 id. 105.
   Per Curiam :

The writ of error in this case must be dismissed. It is sued out to the probate court of Cook county, the error assigned being in the division by the probate court of the “widow’s award” between herself and her minor children.

Section 11 of the Probate Court act, Laws 1877, p. 81, provides that “appeals may be taken from the final orders, judgments and decrees of the probate courts to the circuit courts of their respective counties, in all matters except in proceedings on the application of executors, administrators and guardians for the sale of real estate, ” etc. It has been frequently decided that a writ of error will not lie from this court in cases where an appeal from the judgment is allowed to the circuit court. Hobson v. Paine, 40 Ill. 25; Holden v. Herkimer, 53 id. 258; Haines v. People, 97 id. 161.

Said section 11 gave an appeal in this case to the circuit court, and an appeal should have been taken to that court.

Writ of error dismissed.


author: Mr. Justice Walker

text:
    Gideon Ives v. William McHard.

      Filed at Ottawa May 12, 1882.

    1. Appeal from, Appellate Court—reviewing the facts. Where the facts are found by the Appellate Court, in a suit upon a guaranty of a note, this court is precluded from their consideration further than to determine whether the law has been properly applied to them.
    2. Variance—where evidence tends to prove allegations. Where several things are averred as forming the consideration of a guaranty, if there is evidence tending to prove each one, there is no variance.
    3. Same—only material averments need he proved. The plaintiff is only required to prove the material allegations of Ms declaration. If two considerations for the contract are alleged, one good and the other immaterial, as forming none, the plaintiff will only be required to prove the one which is sufficient.
    4. Consideration—one good one is sufficient. Where various considerations are averred and proved, some good and some insufficient, one sufficient one will support the contract.
    5. Same—extension of time of payment for guaranty. The extension of the time of payment of an antecedent debt, is a sufficient consideration to support a contract guarantying its payment.
    6. Practice in Supreme Court—party controverting Ms own proposition. Where a party asks and obtains instructions that an agreement not to collect more than legal interest on a note forms no sufficient consideration for a guaranty of its payment, he will not, on appeal or error, be allowed to controvert such proposition.
    Appeal from the Appellate Court for the Second District ;—heard in that court on appeal from the Circuit Court of Mercer county; the Hon. John J. Glenn, Judge, presiding.
    This was an action on a guaranty of the payment of a promissory note.
    Messrs. Bassett & Wharton, for the appellant :
    The allegations and proofs must agree. The consideration of the guaranty was alleged to be an agreement to extend the time of the payment of this and another note. The proof of only one of these considerations was not sufficient. 1 Chitty’s Pleadings, 298; 1 Greenleaf on Evidence, secs. 66, 68; Stone v. White, 8 Gray, 594; Mastin v. Toncray, 2 Scam. 216; Indianapolis, Bloomington and Western R. R. Co. v. Rhodes, 76 Ill. 288; Lloyd v. Karnes, 45 id. 69; Mosier v. Norton, 83 id. 521; Toledo, Wabash and Western Ry. Co. v. Morgan, 72 id. 155; Snell v. Deland, 43 id. 323; Murray et al. v. Haverty et al. 70 id. 318; Chicago and Alton R. R. Co. v. Mitchell, 83 id. 429; Menifee v. Higgins, 57 id. 50; Lincoln v. Stowell, 62 id. 84.
    The common counts will not help the plaintiffs, because an action on a guaranty is always upon a special contract for a consideration that must be averred. Stone v. White, 8 Gray, 593. e
    Messrs. Pepper & Wilson, for the appellee :
    If one or more considerations which are recited as the ground of a promise be only frivolous and insufficient, and others are good and sufficient, then the consideration may be severed, and those that are void or frivolous disregarded, while those that are valid will sustain the promise. 2 Parsons on Contracts, chap. 1, sec. 11; Stone v. White, 8 Gray, 859; Matthews v. Mick et al. 2 Ohio St. 519; Thomas v. Miles, 3 id. 274; Doty v. Knox Co. Bank, 16 id. 133; Weder v. Webb, 20 id. 431; Royers v. Kneeland, 10 Wend. 253; Rice v. Almy, 32 Conn. 305.
   Mr. Justice Walker

delivered the opinion of the Court:

The facts being found by the Appellate Court, we are precluded from their consideration further than to determine whether the law has been properly applied to them. It is claimed that there was a material variance between the averments in the declaration and the evidence. It is insisted that there were three things averred as a consideration upon which appellant guaranteed the payment of the note: First, that time of payment was extended on the Dennison note; second, an extension on the Ives and Dennison note; and that only legal interest should be collected on the Ives and Dennison note. On an examination of the evidence, we are satisfied it tended to prove all three of these averments of the consideration for the guaranty. We are, therefore, unable to see there was a variance.

It is next urged that the instructions are faulty in failing to instruct the jury that all of these were required to be proved. The rule is, that if various considerations are averred and proved, some good and some insufficient, one sufficient consideration will support the contract. The extension of time for the payment of an antecedent debt is held a sufficient consideration to ¡support a contract. The extension of time on the Dennison note was all that was required, . as that was the note the payment of which was guaranteed. by appellant, and appellees’ instructions announce this rule. But it is insisted that the instructions are faulty because they omit the requirement of proof of the extension of time on the Ives and Dennison note, and that it was agreed that only legal interest should be collected on it.

Appellant, in his instructions which were given, claimed that an agreement to extend the time for paying the Ives and Dennison note was not a sufficient consideration to support the guaranty, and that under the law only legal interest ' could be collected on that note. An agreement not to collect more than legal interest formed no consideration to support the guaranty by appellant to pay the Dennison note, and if his propositions are true, and he will not he permitted now to controvert them, appellee was not bound to prove illegal or insufficient considerations. According to appellant’s theory, the only material consideration averred was the extension of the time for payment of the Dennison note. The jury were, by appellees’ instructions, required to find that averment proven. The jury are, only required to find that the material averments are proven, and it was not error to so instruct them. We are, therefore, of opinion that there was evidence on which to base the instructions, and that there was no error in giving them.

The judgment of the Appellate Court is affirmed.

Judgment affirmed.


author: Mr. Chief Justice Craig Mr. Justice Scott,

text:
    John Fisher v. The People of the State of Illinois.

      Filed at Ottawa May 17, 1882.

    1. Evidence—criminal law—sufficiency of proof of sale of liquor. On the trial of one for selling liquor without a license, the testimony of a witness that the defendant at a certain time kept a billiard hall in the place, and sold cider, pop and cigars, but that he did not know whether the defendant sold liquor or not, fails to show any violation of law.
    2. Same—sale of liquor by another—proprietorship of defendant to be shown. The testimony of a witness that at certain times he bought liquor at the defendant’s place from one S. while the defendant was absent, without any proof that the defendant was the proprietor of the establishment at the time, will not authorize the conviction of the defendant for such sales.
    3. Same—of evidence to show the time of an occurrence by one who had heard of it. A witness testified that he had obtained liquor from the defendant several times in the summer and fall of 1878, which was within the period of limitation, and on cross-examination admitted he had had a difficulty at the defendant’s place of business, and that defendant ordered him out of his house, but could not exactly remember in what year that occurred, but thought it was in 1876. The defendant called a witness who testified that he knew the former witness, and heard something about he and defendant having a difficulty. This being objected to, the defendant’s counsel said: "We propose to show that in the spring of 1877” defendant and the former witness “had a difficulty, and then go further, and show that he was not in defendant’s place of business after that. ” The court, on objection, refused to allow the same to be proven: Held, that the court erred in refusing this evidence, as it tended to show that sales were not made within eighteen months before the indictment.

      4. Same—to fix date of a transaction. It is a well known rule of evidence, that as a means of fixing the date of a given transaction, it may be proven by a witness that at a given time he heard of the occurrence.
    5. New trial—newly discovered evidence. A,defendant convicted of selling liquor, on the testimony of a witness showing such sale in 1878, moved for a new trial, the motion being based up,on his affidavit that since the trial he had a conversation with the witness, who told affiant that he was mistaken as to the year of the sales, and that he had not bought any liquor of affiant since the early part of the spring of 1877, any sale prior to that time being barred, and that such witness would so testify on a new trial. The affidavit of the witness was not produced, but its absence was satisfactorily accounted for, and an offer to procure the same was made, if the court would withhold its decision to a later day, which the court refused to do, and denied the motion: Held, that the court should have given further time, or have granted the motion for a new trial.
    Writ of Error to the Appellate Court for the Second District ;—heard in that court on writ of error to the Circuit Court of Iroquois County; the "Hon. Franklin Blades, Judge, presiding.
    Messrs. Rubens & Hiestand, and Mr. Thomas W. D. Crane, for the plaintiff
    in error, reviewed the evidence at some length to show that it failed to sustain the verdict.
    Proof of the sale of beer is not sufficient. The statute relates only to intoxicating liquor, and whether the liquor is such is a question of fact to be proved. State v. Starr, 67 Maine, 242; Commonwealth v. Chappell, 116 Mass. 7; Lathrop v. State, 50 Ind. 555; People v. Ziegler, 6 Park. C. R. 355 ; Klare v. State, 43 Ind. 483; State v. Bloss, 116 Mass. 56.
    The court can not take judicial notice that the kind of beer sold is intoxicating. This must be proven before a conviction is had for its sale. Klare v. State, 43 Ind. 483; Lathrop v. State, 50.id. 555; State v. Chappell, 116 Mass. 7; State v. Boss, id. 56; State v. Starr, 67 Maine, 242; State v. Wall, 34 id. 165.
    The death of the sole counsel for a prisoner shortly prior to the term of the court, was a sufficient reason at least for granting time to procure the affidavit of the witness on the motion for a new trial, and when sufficient reason is shown for the non-production of the affidavit of the witness, the party’s own affidavit is entitled to consideration. Suggs v. Anderson, 12 Ga. 461; Welsh v. State, 11 Texas, 368.
    Although the rules for the granting of new trials are sub-' stantially the same in criminal as in civil cases, still the courts hold that new trials should be more freely awarded in criminal cases than in civil. State v. Tomlinson, 2 Iowa, 401; State v. Hammond, 5 Strob. 91; Phipps v. State, 3 Cold. 344.

      And in criminal cases the more freely in proportion to the gravity of the punishment. Falk v. People, 42 Ill. 331; Quarles v. State, 1 Sneed, 407; Troxdale v. State, 9 Humph. 411.
    Mr. James McCartney, Attorney General, for the People :
    The finding of the Appellate Court as to the facts is final and conclusive. Tenney v. Foote, 95 Ill. 99.
    The plaintiff in error, by the use of due diligence, might have developed the facts on the trial which were urged for a new trial, and the affidavit of the witness should have been produced.
    Counsel also commented upon the evidence, contending that it justified the verdict.
   Mr. Chief Justice Craig

delivered the opinion of the Court:

This was an indictment, in the circuit court of Iroquois county, against John Fisher, for selling liquor without a license. The indictment contained nineteen counts, and was returned into court by the grand jury November 9, 1878. At the November term, 1880, a trial was- had before a jury, which resulted in a verdict of guilty on ten counts of the indictment. The court. entered a fine of $500 against the defendant, and sentenced him to two hundred and fifty days’ imprisonment in the county jail.

On the trial of the cause four witnesses were called by the People. First, Daniel Gress. He states that the defendant, in the summer and fall of 1878, kept a billiard hall in Loda, and sold cider, pop and cigars, but he don’t know whether the defendant sold liquor or not. Fritz Eeineke was the next witness, and he has no knowledge of any sale of liquor by the defendant. The next witness was Theo. J. Foster. He testified that in 1877 or 1878 he had liquor at the defendant’s place from one Stewart, while the defendant was absent in Pennsylvania. As to the first two witnesses, it can not be seriously claimed that any violation of law was proved by their evidence. As to Foster’s evidence, he' says he purchased liquor of Stewart, but whether it was more or less than eighteen months before the finding of the indictment is uncertain, hence can not be relied upon to sustain a conviction. Besides; it was not shown that the defendant was the proprietor of the establishment at the time. If he was not, of course he could not be held liable for a sale made by Stewart. There was, therefore, no evidence before the jury upon which a conviction could be claimed, except that of Martin Byan, who was the-fourth witness for the People. He testified that he purchased liquor of defendant in the fall and summer of 1878, as many as six times,—that he purchased beer as many as six times. On cross-examination this witness admitted that he and the defendant had a difficulty at defendant’s place of business, and that Fisher ordered him out of his house, but he says, “don’t exactly remember what year it was. ” Later in his evidence he thinks it was in 1876.

After the People had closed their evidence the defendant called a witness, who testified that he knew Byan; heard something about he and Fisher having a difficulty. This evidence being objected to, the defendant then offered to prove the following: “We propose to show that in the spring of 1877 Fisher and Byan had a difficulty, and then go further and show that he was not in Fisher’s place of business after that. ” This testimony was tibjected to by the attorney for the People, and the objection sustained by the court. When Byan was on the stand he admitted that he had at one time a difficulty with Fisher, and that he had been ordered out of his place of business, but he did not remember when it occurred. Now, if this difficulty took place in the spring of 1877, and the witness was not in the defendant’s place after that, he was doubtless mistaken when he testified • that he purchased liquor in defendant’s place in 1878, and this was an important fact for the defendant to establish, and we perceive no objection whatever to the offered evidence. Indeed, it was error to reject the offered evidence. If the defendant had been able to prove that the difficulty took place in 1877, and that Ryan was not in his house after that time, as he offered to do, the jury could not, under the evidence, without disregarding its legitimate bearing, return a verdict of guilty. If this offered evidence was true, then no sale occurred within eighteen months prior to the finding of the indictment. We think it is plain that the rejection of this offered evidence prevented defendant from having a fair trial.

It may, however, he said that the remarks of the court, after the rejection of the offered evidence, may be regarded as a retraction of the ruling first made; but the ruling to which the court allowed an exception is entirely inconsistent with the remarks afterwards made by the judge. Even if the remarks be regarded as a retraction of the former ruling, still the defendant was denied a means of making out his defence. The fact that the witness and defendant had a difficulty, would be of no significance in such connection unless the date of the difficulty could be established. It is a well known rule of evidence that as a means of fixing the date of any given transaction, you may prove by a witness that at a given time he heard of the occurrence. The question asked was, an appropriate mode of approaching that subject, and should have been permitted.

On the motion for a new trial the defendant re,ad his own affidavit, in which he, in substance, stated that since the trial he had a conversation with the witness Martin Ryan, who told affiant that he was mistaken in regard to the time he testified that he bought liquor of affiant; that Ryan informed affiant that he did not obtain liquor of him at his place after the early part of the spring of 1877; that if a new trial is granted Ryan will appear and testify to such fact. The affidavit of the witness was not produced, but the defendant accounts for its non-production in a satisfactory manner, and offered to produce it within a reasonable time, if the court would withhold its decision on the motion to a later day of the term. The court, however, refused to grant the request, and overruled the motion for a new trial. We are of opinion that it was the duty of the court either to have allowed the motion for a new trial, or postponed the hearing of- the motion until the defendant had a reasonable time to produce Eyan’s affidavit. The defendant could not, under the indictment, be convicted of any sale of liquor made prior to May 9, 1877, and if it be true, as the defendant showed in his affidavit, that Eyan had become satisfied that he had made a mistake, and had not purchased liquor of defendant in 1878, then the conviction, which was based solely on the evidence of Eyan, ought not to stand. It is no doubt the general rule, and a good one, that before a new trial should be granted upon newly discovered evidence, the affidavit of the witness who will testify must be produced, that the court may know that such witness will, upon another trial, testify as the party represents. But under the circumstances of this case it is plain that the defendant ought to have had an opportunity to produce the affidavit of Eyan.

After a careful examination of the whole record, we do not think the defendant has had such a trial as the law contemplates he should have, and for the error indicated the judgment will be reversed and the cause remanded.

Judgment reversed.

Mr. Justice Scott,

dissenting:

At the November term, 1878, of the circuit court of Iroquois county, defendant was indicted for unlawfully selling intoxicating liquors in a less quantity than one gallon, not having a legal license to keep a “dram-shop.” On the trial before a jury defendant was found guilty on ten counts contained in the indictment. The sentence of the court was, he should pay a fine of $50 on each count on which he was found guilty, and in addition to the fine imposed the court sentenced him to a term of imprisonment in the county jail of twenty-five days on each count on which he was convicted. That judgment was affirmed by the Appellate Court for the Second District, and defendant brings the case to this court on error.

One ground relied on for a reversal of the judgment is, 'that the verdict is not supported by the evidence. • On this point counsel for the People insist the finding of the facts hy the circuit and Appellate courts is conclusive on this cpurt, and as the statute declares no assignment of error shall be allowed which shall call in question the determination of the inferior or Appellate Court upon controverted questions of fact in any case, excepting those enumerated in section 88 of the Practice act, this court is forbidden to pass upon the error assigned that challenges the correctness of the finding of the facts by the Appellate Court. Conceding, as may be done, that under the Practice act the Supreme Court may still review the evidence to ascertain whether the accused is guilty or not, in cases of misdemeanor that may come to this court from any of the Appellate Courts, as was done before the amendment of section 88 by the act of 1879,1 think the judgment may and ought to be affirmed, on the testimony of the witness Eyan alone, if all other testimony introduced by the prosecution should be disregarded. It may be his testimony was somewhat contradictory, but his credibility was a question for the jury trying the case.

Giving credit to the testimony of Eyan, as was the province of the jury to do, the sales of whisky and beer testified to by him would fully sustain the conviction on ten counts. The witness distinctly testified as to the sales of beer, but it is objected it was not proved what kind of beer it was,— whether it was malt beer or some fermented liquors called beer, the sale of which is not prohibited by law. If the beer the sales of which were proved, was malt beer, its sale is prohibited by statute, and would justify the conviction. No doubt the jury understood the witness when he stated he had bought leer of defendant, to use the word in the sense it is most commonly used, to mean a malt liquor, the sale of which is forbidden by law. It seems to me the jury might very properly understand the witness when he used the word leer to mean the malt liquor so generally used as a beverage. Defendant knew what kind of beer he had sold, and had he understood the witness to mean any kind of beer made by fermentation the sale of which is not unlawful, it seems certain defendant would have had him explain his meaning. It may, therefore, be reasonably concluded that both the jury and defendant understood the witness, in speaking of beer, to mean a malt liquor.

Ho error is perceived in the action of the court in the rejection of evidence offered by defendant. The witness produced was permitted to state he had heard there had been a difficulty between the witness Eyan and defendant, but when asked from whom he heard it, the court sustained an objection to the question. In that there was clearly no error. It was a matter of no consequence from whom he heard of the difficulty. The fact there had been a difficulty between them was all that was important, and that the witness was permitted to and did state. Counsel for defendant then said to the court: “We propose to show that in the spring of 1877 Fisher and Eyan had a difficulty, and then to go further and show that he was not in Fisher’s place of business after that.” Objection was made to the giving of the testimony proposed to be given, which was sustained, but the court immediately thereafter stated what defendant might prove, as follows: “I do not hold that you can not show the date or time that Fisher had a difficulty with the witness Eyan, and that the witness Eyan was not in Fisher’s place of business after that. I only hold that what you state is no reason why this witness should be allowed to state who he heard tell that the witness Eyan and Fisher had a difficulty, and you may show that after that time he was not in Fisher’s place of business.” Even if it be conceded it was improper to sustain the objection to the testimony proposed to be given, the court immediately, instantly thereafter, corrected its mistake, and stated clearly and distinctly that defendant might give the very testimony proposed to be given, and yet defendant did not avail of the permission given by the court to introduce the testimony which he claimed to he able to do. Certainly it is not error if the court inadvertently rejected proper evidence if the court instantly corrects its mistake, and grants permission to introduce the testimony proposed to be given. It would seem to be sufficient if the court at any time during the progress of the trial corrected its error, but when it is done instantly, as was done in this case, before any other proceedings were had, I do not understand how it is possible to hold the defendant was prejudiced in the slightest possible degree by the decision of the court.

Nor was there any error in the action of the court in overruling the motion for a new trial on the ground of newly discovered evidence. It is stated in the affidavit on which the motion is based, that defendant had a conversation with the witness Eyan, in which the witness stated to defendant he was mistaken in regard to the time when he testified he bought intoxicating liquors of defendant, and that he did not obtain any after a settlement between witness and defendant, early in the spring of 1877. Some excuse—but not a very satisfactory one—is given for not obtaining the affidavit of Eyan to the truth of the statement contained in the affidavit on which the motion is based, but defendant himself does not even state that what he expects the witness Eyan would swear to on another trial would he the truth, and the court very properly disregarded his affidavit in toto.

I am of opinion the judgment should be affirmed.

Mr. Justice Sheldon concurs in the dissenting opinion.


author: Mr. Justice Sheldon

text:
    Peter Barr v. The People of the State of Illinois.

      Filed at Ottawa May 12, 1882.

    1. Change of venue—in criminal case, may be to county court. A change of venue, in a case of misdemeanor, on account of the prejudice of the circuit judge, may properly be granted to the county court of the same county, if that court has jurisdiction of the offence charged in the indictment.
    2. Same—statute relating to, construed. The amendatory act of 1881, relating to change of venue on account of the prejudice of the circuit judge, providing that upon the filing of.the proper petition and affidavits, the cause, by operation of law, may be tried by any other of the circuit judges of the circuit, does not, in express terms, or by implication, repeal the provision of section 19 of the Revised Statutes of 1874, relating to the same subject, which provides that the venue may be changed to some other court of competent jurisdiction in the same county, as both may well stand together.
    3. Statute—repeal by implication. A later statute will not be held to repeal a former one by implication, when the repugnancy between the provisions of the two is not such that they can not both stand together.
    4. County court—jurisdiction of indictment for misdemeanor. The county court has jurisdiction to try an indictment for selling spirituous liquor to a minor without having the written consent of his parents, etc., when sent to it by the circuit court in pursuance of an application for a change of venue on account of the prejudice of the circuit judge.
    5. Jury—mode of summoning in county court. The county court is authorized by statute, when a jury has not been drawn and summoned as required in the circuit court, on the first day of the term, after ascertaining what cases are to be tried by jury, to have a venire issued for twelve jurors, or less, by agreement of the parties, who shall be summoned by the sheriff from the body of the county to serve as jurors for each trial had during the term. The order for such jury to serve during the term, instead of the particular case in which one is demanded, is not error.
    Writ of Error to the Appellate Court for the Second District;—heard in that court on writ of error to the County Court of Will county; the Hon. Benjamin Olin, Judge, presiding.

      The plaintiff in error was, at the May term, 1880, of the Will county circuit court, indicted for selling intoxicating liquor to a minor without first having the written consent of his parents, guardian, or family physician. After the return of the indictment, and entering a plea of not guilty, the defendant, upon the proper petition and affidavits, moved the court for a change of venue, because of the alleged prejudice of the circuit judge then presiding, whereupon the court ordered that the venue of the cause be changed accord: ing to the prayer of the petition, and ordered that the cause be certified to the county court of Will county for process and trial. The order last named was obeyed by the clerk of the circuit court, and the cause was docketed in the county court of Will county for trial at the July term, 1880, of that court. At that term the defendant moved that court to strike the case from the docket, for the reason that the county court did not have jurisdiction of the case, which motion the court overruled, and the defendant excepted. Afterward, when the .jm-y that tried the case was called by the clerk, the defendant challenged the array of the jury, and also moved the court to .quash the venire by virtue of which they were summoned, both which motions the court denied, and defendant excepted. The trial resulted in a verdict finding the defendant guilty, as charged in the second count of the indictment. A motion for a new trial was made and overruled, to which exception was taken, and judgment was entered on j;he verdict, which, on appeal to the Appellate Court for the Second District, was affirmed, and the case brought here on writ of error.
    Messrs. Haley & O’Donnell, for the plaintiff in error.
    Mr. James McCartney, Attorney General, for the People.
   Mr. Justice Sheldon

delivered the opinion of tfte Court:

The points rélied upon for the reversal of the judgment are, the ordering by the circuit court that the cause be certified to the county court of Will county for trial, the refusal to quash the venire, and the insufficiency of the evidence to support the verdict.

As the prayer of the petition for a change of venue was that the venue be changed according to law, and the circuit court ordered that the venue of the cause be changed according to the prayer of the petition, and there was at the time a statute in force providing that when the cause for a change of venue is the prejudice of the judge, and there were the proper petition and affidavits, “thereupon the ease may be tried by any other of the circuit judges of the circuit in which the case is pending to whom the cause alleged does not apply, ” it is argued that upon the filing of the proper petition and affidavits, the cause then, by operation of law, stood transferred to some other judge of the circuit, and the judge from whom the change of venue was asked had no jurisdiction afterward to change the venue to'the county court. This is a too straitened construction of the statute. The Revised Statute in relation to the change of venue, of July 1, 1874, provided that when a change of venue is granted, it may be . to some other court of competent jurisdiction in the same county to which there is no valid objection. (Rev. Stat. 1874, p. 1095, sec. 19.) We understand that provision of this 19 fch section to be still in force, and not repealed by the later statute above referred to, providing that in case of such an application, because of the prejudice of the judge, the case may be tried by any other of the circuit judges of the circuit to whom the cause alleged does not apply. This later act has no repealing clause, and so does not expressly repeal any provision of the statute of 1874, and does not do so by implication, unless, according to the well known rule, there is such a repugnancy between the provisions of the two statutes that they can not stand together. The later statute does not say the case shall, but that it may, be tried by any other of the circuit judges of the circuit. This is not inconsistent with the power under the former statute to change' the venue to the county court of the county, and the two statutes in this respect may well stand together.

Even before the statute of 1874, changes of venue to courts of the same county, against which no valid objection existed, were authorized. In the case of Curran v. Beach, 20 Ill. 259, this court sustained a change of venue granted from the judge of the Cook county circuit court to the common pleas court of Cook county.

Further, by section 120, ch. 37, Rev. Stat. 1874, p. 344, it is provided that when the grand jury of the circuit court shall indict for offences cognizable in the county court, such indictments may, in the discretion of said circuit court, be certified under the seal thereof to the county court for process and trial, etc. The offence in question was one cognizable in the county court, though the mode of commencing the prosecution there is by information instead of by indictment.

We are of opinion there was full power in the circuit court to order the change of the venue of the cause, as it did, to the county- court, and that the latter court had jurisdiction to try the same.

At the July term of the county court, at which the defendant was tried, the court made the following order for a jury:

“It is ordered by the court that the clerk issue a venire facias, directed to the sheriff of said county, commanding him to summon twelve good and lawful men of said county to serve as jurors during the present term of court, or until discharged, returnable on Monday, the 19th day of July, A. D. 1880, at 10 o’clock A. M.” It is insisted the motions in challenge of the array of the jury, and to quash the venire, should have been sustained, because the county court had no right to summon a jury in that manner.

The eighth section of chapter 78, Rev. Stat. 1874, p. 631, provides in what manner jurors shall be selected and summoned for the term of the circuit court, and section 110, of chapter 37, Rev. Stat. 1874, p. 342, provides that unless the court shall otherwise order (as was not done in this case), the jury for the law terms of the county court shall be drawn and summoned in the same manner as juries are drawn and summoned for the circuit court. This jury was not drawn and summoned in that manner, as is contended it should have been. But said section 110 provides further another manner of getting a jury for the county court, when a jury is not summoned as above provided, which is by the court, on the first day of each term, calling all the eases for trial on the docket, to ascertain what eases are to be tried by a jury; and if a jury shall be demanded by either party to any one ease on the docket of the county court, the judge may direct the clerk of the county court to issue a venire for twelve jurors, unless the parties to the case shall consent to have the case tried by a less number of jurors, and the sheriff shall then summon such jurors from the body of the county to serve as jurors for such trial, and then the court may retain such jury so summoned to try all jury cases which are for trial at that term. For anything that appears in the record, the jury were summoned in conformity with 'this provision of section 110, and the presumption that the jury were so summoned will be indulged in support of the action of the court.

It is objected that there should not be this presumption here, for the reason that it appears the action of the court was not in pursuance of this provision, in that the venire was not issued or ordered to be issued in and for any particular case, and that the order of the court and the venire show that it • was a general order of court for twelve men to serve as jurors for the term, without reference to any case. As the provision is that the jurors summoned to serve as jurors for the trial of the particular case in which a jury is demanded, may be retained by the court as a jury to try all jury cases which are for trial at the term, the legal effect is, that a jury ordered and summoned in compliance with this provision of the statute is a jury to serve during the term, if such be the pleasure of the court; so that the ordering and summoning of the jury to serve during the term, instead of in the particular case in which a jury is demanded, is but expressing the legal effect of summoning a jury in the latter mode, and the distinction is but one of form. We find nothing substantial in the objection to the jury.

Upon perusal of the testimony, we see no reason for disturbing the verdict of the jury on the ground that it was not supported by the evidence.

The judgment of the Appellate Court will be affirmed.

Judgment affirmed.