author:
Per Curiam: Mr. Justice Dickey :
      Mr. Justice Mulkey,

text:
    Michael Mooney v. The People of the State of Illinois.

      Filed at Ottawa November 17, 1884.

    1. New trial — verdict against the evidence — in criminal case. This court will reverse a judgment of conviction, in a case of felony, where the evidence on which it is based is all circumstantial and of an unsatisfactory character, and which, when all considered, leaves a serious and grave doubt of the guilt of the defendant.
    2. While this court recognizes the rule that jurors are judges of the facts and the weight of evidence in all criminal cases, yet the law has imposed upon the court the solemn and responsible duty to see that no injustice has been done by hasty action, passion or prejudice, or from any other cause, on the part of the jury.
    Writ of Error to the Circuit Court qf Lake county; the Hon. Clark W. Upton, Judge, presiding.
    Mr. B. M. Wing, for the plaintiff in error.
    Mr. C. W. Brown, State’s attorney, for the People.
   Per Curiam:

The evidence contained in this record has been examined with the utmost care, and more so, perhaps, because of the fact that on two separate trials the accused was found guilty. What evidence was given on the first trial does not, of course, appear in the present record, as the ver'dict was set aside by the trial court. It must be borne in mind, the evidence which it is insisted establishes the all important fact in the case that the deceased came to his death by reason of wounds and injuries inflicted by defendant, is all circumstantial. It is not deemed necessary now to enter upon any analysis of what is insisted upon as the criminating evidence. It is sufficient to say it is not of a satisfactory character, and a majority of the court are of opinion it did not warrant the present conviction.

Recognizing to the fullest extent the rule of law that the jury, in their deliberations, are the judges of the facts and the weight of the evidence in all criminal eases, yet the law has imposed upon the court the solemn and responsible duty to see to it that no injustice is done by hasty action, passion or prejudice, or from any other cause, on the part of the jury. This duty the court may not omit in any case. In view of the character of the evidence, both as to the guilt of the accused and his mental condition at the time of the alleged killing, a majority of the court are of opinion the present judgment ought to be reversed, and the case submitted to another jury, that it may be fully and carefully tried by them, under the direction of the circuit court. To this end the circuit court should have granted a new trial and submitted the cause to another jury, and for the omission so to do, the judgment will be reversed and the cause remanded.

Judgment reversed.

Mr. Justice Walker, dissenting.

Mr. Justice Dickey :

I concur in the opinion of the court, chiefly upon the ground that I think the decided weight of the evidence shows that the accused did not commit the homicide. I think, from the evidence, it was the suicide of an insane man.

Mr. Justice Mulkey,

separate opinion:

Michael Mooney was indicted at the May term, 1883, of the circuit court of Will county, for the murder of John Anderson. Subsequently, on his application, the cause was removed, by change of venue, to Lake county. At the March term, 1884, of the Lake circuit court, he was tried and convicted upon said charge, the jury fixing his punishment at death.' Motions for a new trial and in arrest of judgment being severally made and overruled, he was formally sentenced to be hung on the 23 d day of May, 1884. In the meantime an application was made to this court for a writ of error, which was allowed, and a sivpersecleas ordered, and the judgment and sentence in the case are now before this court for review.

The homicide occurred in cell No. 310, in the State penitentiary at Joliet, on the 30th of May, 1883. The deceased and the accused were cell-mates, and the only occupants of the cell at the time, and both were convicts serving unexpired terms in the penitentiary. As the deceased and the accused were alone in the cell at the time of the occurrence, it may be assumed as reasonably certain that Anderson died either by his own hand or by the hand of the accused, as it is highly improbable the two acted in concert in committing the act. That Anderson died from wounds inflicted upon his person, is conclusively shown; but that the hand of the accused wielded the instrument that produced them, is not so clearly established. This was a material fact, which the State was bound to prove beyond a reasonable doubt, to warrant a conviction. The evidence relied on for this purpose was altogether circumstantial, the accused being the only living person who had an opportunity of knowing the truth of the matter, and he positively denies that he had any agency in inflicting the wounds in question.

Counsel for plaintiff in error maintains, first, that the evidence fails to satisfactorily establish the fact that the deceased died by the hand of the accused; and second, that conceding this fact is sufficiently proved, then he insists that the weight of evidence shows that the accused, at the time of the homicide, was insane, and hence not criminally responsible for what he did. The evidence in the case is very voluminous, and is in the main directed to these two vital points, namely, the imputed agency of the accused in the homicide, and his alleged insanity.

It appears from the testimony of Merrill, one of the night guards of the prison, who was on watch at the time, that about half-past nine o’clock at night he heard, as he states it, “a terrific yell, as of some one in terrible agony,” when he at once started for the place, the screaming, with a slight intermission, continuing all the time. He was but a moment in reaching the cell, when, looking in, he “saw Anderson down on his knees, bent over a stool, and holding on to the bars of the door with his left hand. ” As soon as the guard got there he threw the light of the lamp he was carrying, into the cell, and asked, “What is the matter?” Upon repeating the question, Mooney answered he had been asleep, and “guessed that fellow had a fit, ” to which the guard replied, “Why don’t you get down and help him?” Mooney then started to get down from the upper bunk, when Anderson “let go his hold of the door, and tumbled over in the cell. ” The guard then left for a moment to notify McDougal, captain of the night guards, of what had happened. On his return with McDougal, he entered the cell and turned Anderson over, who gasped twice, and expired. The guard then took Mooney to another cell, having no conversation with him on the way, after which he said to Mooney, “What did he do it with?” — to which the latter replied, “With my tobacco knife, — a knife made here, which I had, to save my bread knife. ” There was blood on one of Mooney’s hands, which the guard did not examine to see whether it was wet or dry; but it is evident from his testimony, it came from a wound on the prisoner’s own hand, which he had received the day before. When the deceased released his grasp on the bars of the cell door, and fell over, as just stated, Mooney was in the act of getting out of the bunk; but upon this happening, and the guard having gone to notify McDougal, he resumed his- place in the upper bunk, and remained there for a minute or two after their return. There were found in the cell that night and the following morning, together, a tooth with blood on it, a common case knife lying a few inches under the edge of the lower bunk, near the middle, lengthwise, and a dirk knife, — the same referred to by Mooney in his conversation with Merrill. The floor of the cell and the body of the deceased" were almost covered with blood, but none was discovered on the bed clothing of either bunk, except a small spot on the corner of a sheet at the foot of the lower berth, hanging near the floor. McDougal, in his testimony, makes the additional statement that when he opened the cell that night, Mooney made the remark, “I was asleep, by Jesus !” and thinks he was a little raised on his elbow at the time.

Hingston, one of the coroner’s jury, testified that Mooney, at the request of the jury, was brought into the presence of the body of the deceased, at the time of the inquest, and was told to look at it, and make some explanation, if he could; that the accused replied he did not know anything about it, for he was asleep; that on defendant taking off his pants, what seemed to be a blood stain or stains, about three inches in length and an inch or inch and a half in width, was found on the left leg of his drawers, which the accused said he could not account for, unless Anderson might have touched him with his hands. This witness further said, on cross-examination: “Saw Mooney at his trial in Joliet, and observed him here, and the same inattention and indifference that he manifests here, I observed in him while before the coroner’s jury.”

The only evidence relied on as showing motive in Mooney to commit the crime, is the testimony of two or three convicts, who claim to have heard him, a short time before Anderson’s death, express dissatisfaction with his cell-mate. To one of them, according to their statements, Mooney said he “couldn’t get along with that damned cell-mate of his.” To another he said Anderson was a crank, — to not be surprised some morning to hear of him being carried out of the cell. To another, that he could not get along with his cellmate ; that he was growling all the time; that it would not be a surprise to the boys in the wire shop if they heard of Anderson being carried out on a stretcher, if they did not take him out. The last two of these witnesses were in the penitentiary for infamous crimes, (one for grand larceny, the other for highway robbery,) which, coupled with the fact that no complaint was ever made to any of the officers of the penitentiary by Mooney, and that no one besides these convicts appears to have known of any dissatisfaction on the part of Mooney with respect to his cell-mate, undoubtedly entitles their testimony to but little consideration. It is but a part of the common experience of mankind, that persons situated as these witnesses were, are ever ready to seize upon the slightest opportunity to favorably attract public attention to themselves, with the hope it may result in bettering their own condition. Moreover, it is but reasonable to suppose, assuming Mooney to have had sufficient understanding to render him accountable for his acts, that had any serious difficulty existed between him and Anderson, he would have made complaint to some of the officers of the institution before resorting to such desperate means of relieving himself from the annoyances of his situation.

Before adverting to the medical testimony, or the number and character of wounds found on the body of the deceased, it is important to have a clear understanding of the size, form and inside arrangement of cell No. 310, which is a part of the east wing of the building. This may be gathered from the testimony of Miller, engineer of the penitentiary. He says: “The cells are made of solid stone, — walls, floors and roofs, — the roof of one cell forming the floor of the one above it. The cells in the east wing are seven feet high, seven feet long, and four feet wide. There is a double iron bunk in each cell, two men occupying each cell. These bunks are one above the other, the upper bunk being eighteen inches above the lower one. These bunks are six feet two inches in length, and eighteen inches in width. ^The space between the bunk, which is placed close to one side of the cell, and the opposite side of the cell, is twenty-six inches. Bach cell is furnished with two low, wooden stools, and a little wooden pail for' water, and a slop pail. ”

Some bed clothing was placed under the head of Anderson that night, and his corpse remained in the cell until next morning, when his shirt and drawers were ripped open and removed from his body, upon which were found above thirty wounds, some two or three of which, only, were regarded as mortal. The number and description of the wounds given by Dr. Oakes are perhaps the most reliable. The examination made by him, assisted by Dr. Stiner, was conducted in the presence of the warden of the penitentiary, and others, including Mr. Hingston, a short-hand reporter, who noted, at the time, each wound, and its description, as publicly called out by Dr. Oakes. The description as taken down by the reporter was then read over, and pronounced ■ correct by Dr. Oakes, and which, as abstracted, is as follows:

“A wound through lobe of right ear, penetrating the space between the mastoid process of temporal bone and the ramus of the lower jaw, passing into the cavity of the mouth, about one-half inch wide. — A wound, simply cutaneous, three inches below the right ear, inclining a little downward and forward, about one-half inch long. — The wounds in the acromial region are four in number, about one-half inch long, through skin and fascia, the direction of the wounds being from right to left oblique, at an angle of about 60°, the wound near cap of shoulder being a very little longer, and apparently deeper.— One wound just below middle of clavicle, oblique through skin and fascia, five-twelfths to six-twelfths of an inch long. — One wound in second intercostal space, about five-twelfths of an inch long, through skin, fascia and muscle, entering pleural cavity slightly oblique. — One wound over third rib, a little outside of a perpendicular line drawn through right nipple, extending to bone, about five-twelfths of an inch long, slightly oblique. (The three wounds last described have the appearance of being stabs, and the left angles of the wounds are deeper than the right angles by one-twelfth of an- inch or more.) — One wound one and one-half inch below the nipple, extending through the muscle, nearly transverse, about three-fourths of an inch long. — One wound three-fourths of an inch long, above the right nipple. — One wound three inches to the left and a little below the right nipple. (These wounds, on close inspection, look like stabs, the left angles being deeper and wider than the right, and all of about the same dimensions.) — One wound three inches to the right of left nipple and to left of sternum, severing third costal cartilage, and extending into third intercostal space, direction oblique, at an angle of 30° or a little less,, entering the heart. — A wound to the right of the ensiform cartilage, three-fourths of an inch long, apparently a stab, the angle of entrance being deeper than the exit by one-twelfth of an inch or more, and terminating in a cut through the skin from left to right, and downward at an angle of about 45°, culminating in a second stab of about the same dimensions and character of first wound.— Two wounds in lumbar region, one over second false rib, the other about three inches above the first, through skin and fascia, about one-half inch long, and have the character of stabs. — A stab over thenar eminence of thumb, through skin and fascia, and partly through muscle. — One wound over the fifth metacarpo-phalangeal joint. — One wound over the center of the third phalange of index finger. (The latter three wounds have the character of punctures or stabs.) — A wound between the third and fourth metacarpo-phalangeal joints, has the character of an incised puncture or stab. The four last named wounds are upon the left hand. Left arm — A wound two and one-half inches long, over the outer and upper aspect of elbow joint, extending through skin and fascia and into muscle, direction apparently from right to left, and obliquely downward. Bight arm — Two wounds through skin only, near the elbow, on the outer side of arm. They have the appearance of cuts about three-fourths of an inch long.— One wound on the front and ulna side of the forearm, midway between the wrist and the elbow, about an inch long, extending through the skin and fascia and into muscle, and has the character of an incised wound. Back of right arm — A wound extending from the ulna to the radial side of the hand, on the posterior aspect of the wrist. This wound has the appearance of having been made by a knife cutting through the skin and fascia to muscle on ulna side, and then through the skin only, for a short distance, and a second (effort causing the knife to pass deeper as it reached the radial side. Back of left arm — Two wounds on the dorsum of second metacarpophalangeal joint. They have the character of incised wounds about half an inch long, extending through skin. — A wound two inches long over back of left hand, the direction being nearly transverse, and extending through skin and partly through fascia. — A wound two inches long over back of left wrist joint, the wound extending through skin and fascia, the skin retracted much, and made a gaping wound by flexion of the joint. — A wound in the posterior aspect of the left thigh, four and one-half inches long, and extending through skin and fascia and muscle, about three inches deep, and near the centre of said wound the direction was longitudinal. — A wound on the outer aspect of left thigh, two inches below the trochanter. — A wound over the left gluteal region, one and one-fourth inch long and one-third of an inch deep. ”

The medical testimony, as is not unfrequently the ease, discloses a diversity of opinion among the witnesses upon several important questions, though in many respects there is no substantial conflict between them. Drs. Campbell, Ray-nor, Dougall and Richards were introduced in chief, by the People. Campbell and Dougall examined the body of the deceased the morning after his death, and before its interment. The examination made by Dr. Oakes was after the body had been disinterred, and was made for the express purpose of ascertaining with certainty the exact character and location of the wounds. The examination by Campbell and Dougall was doubtless chiefly for the purpose of determining whether the wounds were mortal, so they could speak with certainty before the coroner’s jury as to the cause of death. It is evident they made no record of the examination, and their testimony before the trial court shows they had an imperfect recollection of many important matters connected with the wounds, as bearing upon the question whether they were self-inflicted ■ or not. While their examination was sufficiently careful and accurate for the purposes for which it was made, yet, for the reasons stated, that made by Dr. Oakes is more complete and satisfactory in its bearing upon the present inquiry. Dr. Dougall, who assisted Dr. Campbell, and who substantially agrees with him as to everything relating to it, says: “I did not make a memorandum of the exact locality of the wounds, nor did I charge my memory fully with it. ” Drs. Campbell and Dougall make thirty-one wounds, answering in the main those specified by Drs. Oakes and Stiner, while the latter make thirty-three; but this difference in results is a matter of no special significance,, except as it may tend to show the care with which the examinations were respectively made. The former claim to have found wounds on the palms of the hands, and one about the gluteal region that extended into the pelvic cavity. The latter are quite positive there were no wounds at all in the palms of the hands, or either of them, and also that the wound in the gluteal region did not extend into the pelvic cavity. The latter wound they insist was a mere flesh wound, extending inwardly three-quarters of an inch, only. This discrepancy is of more importance, but for reasons already stated, the conclusions reached by Drs. Oakes and Stiner are more probably correct. In makiñg this statement it is not intended to at all question the integrity or motives of Drs. Campbell and Dougall. No doubt the conflict in question is the result of an honest mistake, which might well have happened with any one making an examination, under the circumstances, for the purpose they did.

Under this state of facts the question is presented, What are the probabilities as to who inflicted the wounds found upon Anderson’s body, and of which he is conceded to have died? — were they self-inflicted, or were they made by the hand of Mooney ? In 'attempting to answer this question, the important inquiry first arises, Was it possible for Anderson to have made the wounds with his own hands ? It seems clear, from the evidence, he might, with a knife in one or the other of his hands, have inflicted every wound found on his body, provided he was not prevented by loss of physical strength before the operation was completed. This, in effect, is admitted. Nevertheless, it is claimed by the People the wuunds could not have been self-inflicted, because, as is alleged, if the wound in the heart, — the most fatal one, — had been first made, death would ^have followed almost instantaneously, and before the deceased could possibly have inflicted the others. On the other hand, it is contended if the less important wounds had been inflicted first, whatever the order of their infliction may have been, they would have so shocked and weakened him that he could not possibly have inflicted the wound in the heart, — and in this position the People are sustained by the opinions of Drs. Campbell, Baynor and Dougall, as expressed in their examinations in chief; but the force of their opinions is greatly weakened by admissions, on cross-examination, and references to cases admitted by them to be authoritative in the medical profession, which are somewhat inconsistent with the opinions expressed by them. On the other hand, Drs. Oakes, Alexander, Hosmer, Curtis and Kiernan, witnesses called by the accused, and Dr. Richards, a witness called by the People, swear that all the wounds in question might have "been made by the deceased himself. Thus it is satisfactorily shown, by the decided weight of evidence, that the deceased may have inflicted the wounds himself.

Strange as this case confessedly is, assuming Mooney to be guilty, one of the most remarkable features of it is, that he should, by mere chance, have made thirty-three wounds on the person of Anderson, scattered over various parts of the body, without making a single one which Anderson himself could not have made. All these wounds, with the exception of three or four, were light and unimportant, some of them extending barely through the skin; and so far as they indicate any intention at all, they would seem to have been inflicted for purposes of mutilation and torture, merely, — just such wounds as an insane suicide would be most likely to inflict.

Turning now to the accused, it may be admitted it was physically possible for him to have made the wounds; but the important point is, What are the probabilities ? In determining this "question many things are to be taken into account, particularly the size of the cell, the articles of furniture it contained, the size and construction of the bunks, the condition of the bed clothing, wearing apparel of the accused and deceased, and of the cell floor, after the affair was over. Were the parties in their respective bunks while the deed was being done ? The location and character of the wounds show this was physically impossible. Moreover, the fact that the bed clothing on the bunk of the deceased was, with the exception above mentioned, free from blood stains, demonstrates the wounds could not have been inflicted while he was in his bunk; and for the same reason the deceased could not have been in the bunk of the accused when the cutting was done. He must therefore have been on the floor, and if the cutting was done by Mooney, he, of necessity, was on the floor also, for he could not possibly have made all the wounds from his bunk. To have done the cutting on the floor, he was necessarily in very close proximity to the deceased, — and how could all this have been done without getting more or less blood stains upon his shirt and drawers ? As already seen, the body of the deceased, next morning, was saturated with x blood, and, as the evidence shows, there was a great deal of blood on the floor, yet none was found on the accused, except a small spot or two on one of the legs of his drawers, which he accounted for by saying he supposed the deceased had probably touched him with his hands while accused was lying in his bunk. This conjecture was not at all improbable, but the stain is more likely to have been caused by his drawers coming in contact with blood on something in the cell or on the walls of the cell, when he got out of his bunk that night. Grant, in his testimony, expressly states “there was a great deal of blood on the floor * * * and blood on the walls of the cell. ” Considering there was only about twenty-six inches space between the bunks and the opposite wall, which had more or less fresh blood on it, it would have been even remarkable if the accused had got down out of the bunk and passed out of the cell without getting any stains on his clothing. No importance or significance is therefore to be attached to the stain on the leg of his drawers.

Again, assuming the cutting was done by Mooney while both parties were out of their bunks, and that there was a great deal of blood on the floor, as stated by Grant, is it not morally certain that Mooney would have got more or less of it on his feet, and by that means have stained the bed clothing on his bunk ? Yet no such stains were found there. But conceding this to have happened by some strange and unaccountable means, how was it possible for him to do all the cutting and carving it is claimed he did, without getting a single stain of blood upon his shirt or even his hands ? And yet, in order to sustain the judgment below, this court must say all this, strange and unreasonable as it is, not only happened, but that there is no reasonable doubt of the fact!

But suppose, for the purposes of the argument, all this be conceded, and the case is to be considered upon the hypothesis that Mooney did the cutting and that Anderson was sane at the time, as it is claimed he was, and that he was making such resistance as his physical strength and judgment enabled him to, would it not have resulted in such a deathly struggle and rencounter between them as would certainly have attracted the attention of the guard and every one in that locality? Would not something else have been heard besides wild, inarticulate shrieks or groans, such as are described by the witnesses in this ease ? Yet nothing of this kind was heard by any one. Not only so, but, all the circumstances considered, it is manifest that no such struggle could have taken place. Looking at the case from this aspect, the narrowness of the space in which the parties would have had to grapple with each other; the fact that it was in part occupied by-the two stools, water bucket and slop pail; also, that on one side of this space were the iron bunks, even a slight touch of which, in a struggle of that kind, would most likely have left its mark on the body, — must all be kept in view. Think of a deathly struggle at the early hour of half-past nine, in that narrow, crowded cell, over stools, bucket and slop pail, without any one hearing or knowing anything of it! Think of such a struggle, under such circumstances, without leaving a single bruise or mark on either of the parties, to show it had taken place! Would it not be taxing human credulity beyond all reasonable limits, to ask one to believe that this might have happened? Of the thirty-three wounds on the deceased, not a bruise or contused wound is to be found among them, and, so far as the evidence discloses, not a scratch, abrasion of the skin, or mark, was found on the defendant. Surely, this could not have been, had such a collision really taken place. But this is not all. Turning to the wounds themselves, it is found that most of them must have been inflicted by blows or thrusts given from right to left, indicating both method and deliberation, which, in connection with the fact already stated, that most of them are so slight and trivial as to indicate a purpose of mutilation, merely, strongly negatives the fact there was a personal struggle or collision between the prisoner and the deceased. If, then, there was no struggle, we must, upon the hypothesis of Mooney’s guilt, assume that Anderson quietly and without resistance submitted to the butchery, — a position still more unreasonable than the other, and therefore inadmissible.

Leaving this branch of the case, and turning to the question of the prisoner’s insanity, it must be conceded the case made by him is a strong one. As bearing on this question, the testimony of the accused, his deportment, manner of testifying, and general bearing throughout the whole affair, are not without significance, and greatly strengthen his case'. In addition to this, the evidence shows that his mother, before him, was insane, that he had a cousin, on his father’s side, who was also insane, and that he himself, when fifteen or sixteen years of age, had fits, and was subject to illusions. Add to this the positive opinions of eminent medical experts that Mooney, at the time in question, was an epileptic lunatic, and the case is yet still stronger. The opinions of these medical witnesses seem to be strongly fortified by medical authority, and the witnesses themselves are evidently men of great learning and research. It is true, other medical witnesses expressed contrary opinions, and gave it as their best judgment the prisoner was sane, and consequently responsible for his acts. If this case turned upon the weight of expert testimony upon this question, merely, a more difficult question would be presented; but it does not, for the wounds themselves, assuming they were made by the prisoner, raise the strongest doubt of his sanity. It is difficult to conceive of a motive, and surely none has been shown, that would induce a sane man to inflict between twenty and thirty mere flesh wounds upon various parts of the body, as was done in this case, when the sole object was to take life to rid himself of a mere petty annoyance, as is claimed was done here.

It is not necessary to further discuss this branch of the case. It may be concluded by the general remark, that, to say the least of it, the question is not free from well founded doubt if it be assumed the killing was done by the prisoner. Indeed, from every aspect in which the case is capable of being viewed, grave and serious doubts of the prisoner’s guilt are encountered. Such being the case, what is the law applicable to it? Fortunately, there is no diversity of opinion or conflict of authority with respect to it. A conviction is asked in the .case upon circumstantial evidence alone. The unquestioned rule in such case is, that before conviction can properly be had, the guilt of the accused must be so thoroughly established as to exclude every other reasonable hypothesis. This has not been done. The whole case seems shrouded in mystery and doubt to such a degree that it would be dangerous to permit the conviction, and it should therefore be reversed.


source: Caselaw Access Project

author: Mr. Justice Scott

license: Public Domain

text:
    Mary Clark v. The People of the State of Illinois.

      Filed at Ottawa November 17, 1884.

    New triad — verdict against the evidence — m criminal case. Three persons were tried together, for larceny, and all convicted, two being evidently guilty, but the guilt of the third was quite doubtful. The principal witness against the third was one of her co-defendants, whose testimony was not very reasonable and probable in itself, and was contradicted by other defendants. This court not being satisfied, beyond a reasonable doubt, of the guilt of the third party, and believing it better to give her a trial separately, reversed the judgment against her, and remanded the cause to the court below for a new trial.
    Writ of Error to the Criminal Court of Cook county; the Hon. George Gardner, Judge, presiding.
    At the January term, 1884, of' the Criminal Court of Cook county, Mary Clark was indicted, with Mary Anderson and Bertha Kleinsmith, for the crime of larceny, and on the trial was found guilty, with her co-defendants, of stealing a lot of ostrich plumes, and sentenced to the penitentiary for a period of two years. She brings the case to this court on error, and seeks a reversal of that judgment against her, principally on the ground the verdict is contrary to the evidence.
    Messrs. E. & A. Van Burén, for the plaintiff in error.
    Mr. James McCartney, Attorney General, and Mr. Luther Laflin Mills-, State’s attorney, and Mr. George C. Ingham, for the People.
   Mr. Justice Scott

delivered the opinion of the Court:

The evidence in this case has been examined with care, and the court is not satisfied it shows, beyond a reasonable doubt, that defendant, Mary Clark, is guilty of the crime of larceny with which she is charged. The principal fact that is proven to connect her with the stealing of the goods, is, she went to the store in company with the guilty defendants) and was in the store at the time the goods were taken. But all that may be true, and consist with her innocence. She was in another part of the store when the goods were taken, and with her back towards the other defendants, so that she could not see what they were doing. Outside of the testimony of one of defendants, there is really nothing to connect defendant Clark with the larceny. Bertha Kleinsmith, a co-defendant, and the one most guilty of all of them, testified that defendants Clark and Mary Anderson drove up to her house, and induced her to go out with them to steal, as she and Mary Anderson wanted $100 to pay lawyers’ fees, and had no other way to get the money. The story she tells in this respect, is not in itself a very probable one. On the other hand, Mary Anderson testified, with great positiveness, that defendant Clark did not know that she had taken the goods, until they were arrested, and had nothing to do with the taking. When arrested, Mrs. Clark asked, “Why did you get me into this trouble?” — to which Mary Anderson made no reply.

There is much in the evidence that tends to impeach the testimony of defendant Kleinsmith. She had before been convicted of larceny, and had served a term in the penitentiary. Her whole testimony shows she is an abandoned woman and a great criminal. . Besides these damaging facts, her account of what occurred at the store is in conflict with that of all the other witnesses. Mary Anderson, so far as this record discloses, has never before been charged with crime, and her testimony would therefore seem to be entitled to more weight. While it is the province of the jury to judge of the credibility of the several witnesses, this court would, in view of the unsatisfactory character of the testimony, be better satisfied if the case should be submitted to another jury, where defendant could he tried separately from her co-defendants, both of whom are clearly guilty. To that end the judgment will he reversed, and the cause remanded.

Judgment reversed.


author: Mr. Justice Dickey

text:
    George E. Ayers v. The City of Chicago.

      Filed at Ottawa September 27, 1884.

    1. Pleading — of the declaration — -in action against a city to recover for personal injuries resulting from negligence. In an action against a city to recover for an injury resulting from leaving a dangerous pit unguarded, it is not sufficient in the declaration to allege, generally, that it was the duty of the defendant to cover or otherwise protect a dangerous pit or place, hut the pleader must state facts from which the law will raise the duty.
    2. Pleading and evidence — allegations and proofs must correspond. A plaintiff can not recover except by proof of the case stated in his declaration. The probata must support the allegata.

    3. Same — in suit against a city for personal injwries — allegation and proof as to duty of the city in respect to safety of streets. An allegation in a declaration in a suit against a city to recover damages for a personal injury, that the defendant was in the possession and occupancy of premises adjoining a public highway on which was a dangerous pit, and that by reason of such occupancy it was the duty of the defendant to protect the public against danger of injury from falling into such pit, by covering the pit, or otherwise guarding against accident, and alleging a failure to perform such duty, is not sustained by. proof that the defendant was possessed of a public street frequented by the public, and by reason of the possession of the street it became the duty of the defendant to make and keep the public highway in a safe condition, and that in violation of this duty the city had negligently permitted a dangerous pit adjoining such highway to be and remain without any harrier to prevent persons passing from falling therein, nor is such allegation sustained by proof tending to show negligence of the defendant to keep such highway so in its possession safe, by permitting to be and remain in the same a dangerous pit wholly unguarded by any harrier.

      4. Under a declaration charging a city with the duty of covering or protecting a dangerous pit, upon the allegation that the pit is located on premises occupied by the defendant and adjoining a public highway, the plaintiff can not recover by proving that the defendant was in possession of the street, and as occupant of the highway owed that duty to the public whether the pit was in the highway or adjoining the same.
    5. Pbactice — directing what the verdict shall be. Where there is no evidence tending to prove a material allegation in the plaintiff’s declaration, and without the proof of which no recovery can be had, there is no error in excluding all the evidence, and instructing the jury to find for the defendant.
    Appeal from the Appellate Court for the First District; — - heard in that court on appeal from the Superior Court of Cook county; the Hon. Bollin S. Williamson, Judge, presiding.
    This is an action of trespass on the case, wherein appellant, as plaintiff, alleges in his declaration that on the 11th day of December, A. D. 1881, the defendant (the appellee) was the possessor and occupier of a certain messuage and premises, situated on the north-west corner of Washington and Clark streets, in the city of Chicago, in the county of Cook, adjoining the public highway or side'walk about said premises, in which there was a certain hole, aperture and opening, otherwise known as a “light shaft,” belonging to said premises, including said light shaft, and that the plaintiff, while walking along said sidewalk with all due and proper care, fell into said opening in and adjoining the said sidewalk and common highway, and was greatly injured, — his head so injured as to affect his hearing, his leg broken in different places, so that it became necessary to amputate the same, and incur great expense in and about his injuries, and for loss of time and business, laying his damages at $20,000, consequent upon the failure and neglect of the defendant to protect said opening and light shaft with a railing or guard, as in duty bound, — to which the defendant filed the plea of not guilty, and upon the issues so joined a jury was impaneled and the trial had,

      On the trial, plaintiff produced proofs tending to show that while walking on the sidewalk on the north side of Washington street, going westward from the north-west corner of Clark and Washington streets, in the city of Chicago, in the county of Cook, — which sidewalk was just south of the court house, there being snow on the ground at the time, and it being in the night time, — the plaintiff, bearing to the right, walked towards the court house, and while exercising ordinary care, fell into a hole, or uncovered and unprotected and unguarded light shaft, which adjoined the sidewalk, and was between the northern edge of the sidewalk and the wall of the court house; that this hole or light shaft was about four feet wide and twelve feet long, and about twelve feet deep, and was entirely uncovered, and without any railing or barrier to prevent persons from walking unawares into the same or falling into the same; and that a smooth pavement extended all the way from the south side of the hole to that part of Washington street used for wagons, carriages and horses, — a distance of some sixteen feet; and that by the fall his ankle was crushed so his leg had to be amputated, and he was otherwise very seriously injured in his person, and also that he was subjected to great expense. Plaintiff testified, also, that the opening was in the sidewalk, and not in the court house building. One of his witnesses testified that the hole was neither in the sidewalk nor in the court house, but between the two; the opening had no connection with the court house, except as a shaft for light to the basement of the building ; also, that this hole had remained for at least six months in this condition, at the north edge of a sidewalk, where large numbers of people were constantly passing. There was no evidence whatever that the defendant (appellee) was ever in possession or in the occupancy of the place where this hole was, or of the court house.
    This being all the testimony in the case, the counsel for defendant moved the court to exclude the evidence from the consideration of the jury, which motion the court sustained, and plaintiff then and there excepted. The court then gave the jury the following instruction:
    “The jurors are instructed that there is no evidence to sustain the material allegations of the plaintiff’s declaration, and you are therefore directed to bring in a verdict for the defendant that the defendant is not guilty.”
    —To 'which the plaintiff at the time excepted. The jury found the defendant not guilty. On the same day plaintiff moved the court to grant a new trial, because the court erred in giving said instruction, and because the verdict is against the law and against the evidence in the case, and should have been for the plaintiff. The motion was overruled, and plaintiff excepted. Judgment for defendant was rendered. On appeal, this judgment was affirmed in the Appellate Court for the First. District, and plaintiff, with the certificate of that court, under the statute, appeals to this court.
    Mr. L. M. Shbeve, for the appellant:
    The evidence proves that the opening is in the edge of the sidewalk, made, no doubt, as a light shaft in the basement of the court house, but made in the sidewalk over which pedestrians pass, and had a right to pass, over its entire width. Indianapolis v. Gaston, 58 Ind. 224; Stephen v. Brown, 40 Ill. 428.
    The legal presumption is, that the city makes its own sidewalks, and that it has the control and possession of the same, no matter who owns the fee. City v. Johnson, 53 Ill. 91.
    The city holds the public streets and highways in trust for the public use, and is bound to see its sidewalks are reasonably safe for persons exercising reasonable care, — to place lights where obstructions are made by themselves or others, and to place guards in dangerous places. City v. Wright, 69 Ill. 319; City v. Brophy, 79 id. 277; Campbell v. Race,
      7 Cush. 408, cited in 35 Ill. 58; Norwich v. Breed, 30 Conn. 535; President v. Meredith, 54 Ill. 84; City of Bloomington v. Bay, 42 id. 503; Dillon on Mun. Corp. chap. 23, p. 754.
    If a sidewalk be made by a private citizen, the city is liable for defects known in it, from which injury results. City of Rockford v. Hildebrand, 61 Ill. 155.
    The liability is equally clear if damage result from obstructions or dangerous excavations on adjacent property, so near as to endanger the free use of the street. City of Chicago v. Robbins, 2 Black, 418; Nibbett v. City of Nashville, 4 Wall. 657; Dillon on Mun. Corp. 754, et seq.

    The liability extends equally to obstructions, dangerous places and unprotected holes upon adjoining or adjacent property, by whomsoever made. Mayor of New York v. Baily, 2 Denio, 433; Campbell v. Race, 7 Cush. 408; 3 id. 174; 30 Conn. 118; Lacon v. Page, 48 Ill. 499.
    Mr. Julius S. Gbimell, for the appellee:
    The city is not liable, because there was an absolute failure on the part of the plaintiff to prove that the city owned, occupied or controlled the county building, or that the city had anything to do with or about the opening in question. The negligence charged is, that there was a hole in the building or premises owned and occupied by the city, which it failed to cover or protect. There was no proof of the occupancy or ownership of the premises by the city.
    The place where the plaintiff received his injury was not in the walk, but in the county building, over which the city has no control. It could not be reached except by going out of the way, and was reached by plaintiff, as he says, in attempting to get out of sight and away from persons passing along the street. The accident was not unavoidable, and did not necessarily happen. Plaintiff’s going there might have been his convenience or even necessity, but it was no such necessity as would imply negligence for which the city is responsiHe. He left the walk provided by the city, and went to a building not owned or controlled by the city, to a place not in the traveled way, and to be out of sight endeavored to get behind an immense buttress, and fell. Gavin v. City of Chicago, 97 Ill. 66; Monmouth v. Sullivan, 8 Bradw. 50.
   Mr. Justice Dickey

delivered the opinion of the Court:

We find no error in the judgment of the Appellate Court. The judgment of the Superior Court of Cook county was properly affirmed. The only question of law presented by the record relates to the propriety of the instruction directing the jury to find for the defendant, upon the ground stated in the instruction, — that “there is no evidence to sustain the material allegations of the plaintiff’s declaration.”

The gist of the complaint, as stated in the declaration, is, that the defendant was in possession and occupancy of premises adjoining a public highway, and that on these premises so adjoining the public highway and so possessed by the defendant, was a dangerous pit, and that by reason of such possession and occupancy of the pit so situate, it was the duty of defendant to protect the public against liability to injury by fallíng into the pit, by covering the same, or otherwise guarding against the danger, and that defendant failed to perform that duty. A plaintiff can not recover except by proof of the case stated in his declaration. The probata must support the allegata. It does not tend to support the allegations of this declaration to furnish proof tending to show that defendant was possessed of a public street frequented by the public, and by reason of the possession of the public street it became the duty of defendant to make and keep this public highway in a safe condition, and in violation of this duty it had negligently permitted a dangerous pit adjoining such highway to be and remain without any barrier to protect persons passing from falling therein; nor does proof tending to show a negligent failure of the defendant to keep such highway so in its possession safe, by permitting to be and remain in said highway a dangerous pit wholly unguarded by any barrier, — and this, for the reason the declaration charges defendant with no such duty. It is not necessary here to decide whether the proofs given would have made it the duty of the court to have submitted the case to the jury under a declaration charging the ease which the proofs are supposed to sustain. It is enough that the proofs utterly fail to tend to show that defendant was in possession of the premises outside of and adjoining a public highway where it is alleged this dangerous pit was. This allegation can not be treated as surplusage. Without it the declaration shows no cause of action. It is not sufficient, in a declaration, to say, generally, that it was the duty of defendant to cover or otherwise protect a dangerous place. The pleader must state facts from which the law will raise the duty. Such duty in relation to this pit may arise from the fact, if it be so, that the defendant excavated the pit. Such duty may rest upon one in possession and occupancy of such pit. Such duty may rest upon a city occupying a street adjoining such pit, upon the ground that the permission of the pit renders the street unsafe; and if the pit be in the street, the duty may rest upon the city to keep covered and protected all dangerous pits located in the streets. On these questions we need not here pass. What we rule is, that under a declaration charging defendant with the duty of covering or protecting a dangerous pit, upon the allegation that the pit is located on premises occupied by defendant and adjoining a public highway, plaintiff can not recover by proving that defendant is in possession of the highway, and as occupant of the highway owes that duty to the public, whether the pit be in the highway or adjoining the highway.

The judgment of the Appellate Court is therefore affirmed.

Judgment affirmed.


author: Mr. Chief Justice Soholfield

text:
    Ann E. Johnson et al. v. The Freeport and Mississippi River Railway Company.

      Filed at Ottawa November 17, 1884.

    1. Eminent domain — of the pleadings — cross-petition—whether allowable. On a petition to condemn land by a railroad company, the defendant has a right to file a cross-petition when his interests are not accurately or fully stated in the petition, and thereby recover compensation for damages to other adjacent property not sought to be taken, and it is error to strike such cross-petition from the files. If it be defective, or the property damaged is insufficiently described, or-the cross-petition does not show how the property will be damaged, the proper course is to demur to it, so as to afford an opportunity to amend the same.
    2. Same — as to plea or answer to petition. Under the Eminent Domain act an answer or plea to the petition is not allowable, and if a special plea is filed, there is no error in striking it from the files.
    3. Sam:e — petition filed in vacation — trial in term time. A petition under the Eminent Domain act, though filed in vacation, may be tried in term time, and a motion to dismiss, and a challenge to the array of jurors, based on the ground that the petition was filed in vacation, are properly disallowed.
    4. Same — measure of damages — special value of property proposed to be tahen. On a proceeding to condemn lots for depot and other railroad uses, the defendant offered to prove that the property had a special value beyond its general market value, and also that certain prices had been offered for the property, within a few months of the time of the trial, above the general market value, — all of which was excluded, on objection: Held, that the court erred in excluding the evidence.
    5. If property has a special value from any cause, that special value belongs to the owner, and he is entitled to be paid it by the party seeking condemnation.
    6. Evidence — opinions of witnesses as to value of property sought to be condemned. Persons familiar with land sought to be condemned, who have opinions of its value, though not shown to be experts, are competent witnesses to express those opinions. But the weight of such evidence presents a different question. On that point, when there is equal credibility, superior opportunity and intelligence are entitled to the greater weight.
    7. Such opinions of witnesses as to the value of the land are not, however, to be passively received and blindly followed, but should be weighed by the jury, and judged of in view of all the evidence in the case and the jury’s own general knowledge of affairs, and have only such consideration given to them as the jury may believe them entitled to receive.
    8. Chanceby — dismissal of hill on motion — on what grounds. A bill in equity will not be dismissed, on motion, unless it be for want of equity apparent on the face of the bill, and when it is manifest no amendment can help it, or for want of jurisdiction.
    9. Pleading and practice — how to dispose of defective pleas. At law, if a plea is insufficient in form or substance, the only mode of taking advantage of the defect is by demurrer. It is improper in such case to strike the plea from the files.
    10. Bill of exceptions — when necessary. This court can not review the ruling of the trial court in excluding written evidence, such as deeds and ordinances, unless they are preserved in a bill of exceptions or certificate of evidence.
    Appeal from the County Court of Jo Daviess county; the Hon. William B. Bowley, Judge, presiding.
    Mr. M. T. Johnson, for the appellants.
    Mr. B. C. Cook, for the appellee.
   Mr. Chief Justice Soholfield

delivered the opinion of the Court:

This is a proceeding commenced by petition, by the Free-port and Mississippi Bailroad Company, to condemn, under the Eminent Domain act, the whole of lots 10, 11 and 12, in block 5, on the east side of the Galena river, in the city of Galena, that remains after taking therefrom a strip of land ten feet in width off the east end thereof, conveyed to the Illinois Central Bailroad Company, and after taking therefrom another strip of- ground off the west end thereof twenty-two feet wide, on Bouthillier street, and gradually narrowing southwardly to a width of ten feet on the southerly boundary line of said lot 10, conveyed to the city of Galena, the title whereof is conceded to be in fee in Ann Eliza Johnson. The purpose of the condemnation is for depot, station building, right of way for construction and operation of main and sidetrack, spurs, switches, etc.

At the return day of the writ, Ann Eliza Johnson filed her cross-petition in the proceeding, in which, among other things, she alleged that “she is the owner of a strip of ground off the west end of said lots 10, 11 and 12, of twenty-two feet, on Bouthillier street, narrowing southwardly to ten feet in front of lot 10, on Water street, in which the right of user was conveyed to the city of Galena, which strip is not included in the petition for condemnation; that in and by her deed conveying such right of user to the city of Galena, which was dated January 25, 1856, it was stipulated that the conveyance was made on the condition that the grounds so conveyed should be forever kept and used as a public street and wharf for the use of the inhabitants of Galena, and that Water street, in front of said lots, should be kept and maintained at all times forty-five feet wide; that in consequence of the said condition on which said conveyance was executed, she has a vested interest in so much of said Water street as is in front of said lots, paramount to other lot owners abutting on said street; that the petitioner, by- the line of its contemplated railroad, will run over and appropriate to itself the exclusive use of said Water street in front of said lots, under and by authority of an ordinance of the city of Galena, which provides that said petitioner shall pay all damages occasioned thereby.” The cross-petition concludes, “by means whereof she will be greatly injured and damaged in other property she is interested in, adjacent and within two hundred feet thereof, by reason of taking said Water street aforesaid, and prays that damages may be assessed under the law, as required by the statute, ” etc. On motion of the attorney for the petitioner, this cross-petition was stricken from the files. Afterwards, Ann Eliza Johnson filed a special plea to the petition, and this, on motion of the attorney for the petitioner, was also stricken from the files.

When the cause came on to be heard, the attorney for Ann Eliza Johnson challenged the array of jurors, and moved to dismiss the petition; but the challenge was disallowed, and the motion to dismiss was overruled. Her damages were then assessed, by the verdict of the jury, at $2500, whereupon she moved for a new trial, but the court overruled the motion, and entered judgment upon the verdict. Exceptions were taken by Ann Eliza Johnson to the various rulings of the court adverse to the contentions of her attorneys, which were allowed, and she now assigns numerous errors in consequence of such rulings. Such of them as we deem important we shall notice in consecutive order.

First — We think the court erred in striking the cross-petition of Ann Eliza Johnson from the files. The constitution guarantees as well that private property shall not be damaged, as that it shall not be taken for public use, without just compensation, (see. 13, art. 2, of the constitution,) and this guaranty is repeated in the first section of the' Eminent Domain act. The second section of that act likewise makes provision for assessing damages on account of property damaged, as well as on account of property taken for public use. Where some property is damaged and other property is taken for public use at the same time, in many instances it would seem to be almost indispensable to the ends of justice that the questions should be considered together, and hence there ought to be some way by which, if the petitioner neglect to include in his petition all property damaged as well as all property taken, it could be brought before the court. Obviously, the most convenient way to do this is by cross-petition. It is true the statute makes express provision for filing a cross-petition only by a person interested who is not made a defendant; but this, by implication, would seem to recognize the right of a person already made defendant, whose interests are not fully or accurately stated in the petition, to file a cross-petition for that purpose. It surely could never have been intended that a person whose name or interest is not mentioned in the petition, may come in by cross-petition, describe his interest and have his rights adjudicated, and yet a person who is summoned as defendant shall be denied the privilege of being allowed to accurately describe his interest in a cross-petition and have his rights adjudicated. The right to file a cross-petition, by the analogies of the law, would seem to result as an incident from the right to file the petition, and so we have held that a cross-petition is an appropriate mode of bringing before the court, property of the defendant taken or damaged and not described in the petition. Mix v. Lafayette, Bloomington and Mississippi R. R. Co. 67 Ill. 319; Jones v. Chicago and Iowa R. R. Co. 68 id. 380; Galena and Southern Wisconsin R. R. Co. v. Birkbeck, 70 id. 208.

This cross-petition distinctly shows an ownership of the defendant, Ann Eliza Johnson, in the fee of certain soil theretofore conveyed to the city, adjacent to Water street,— an implied obligation on the part of the city to keep that street open in front-of her property, forty-five feet wide; that the petitioner will run over and appropriate the exclusive use of that street in front of her property, and that she will be damaged thereby. There is, undoubtedly, an insufficient description of the property claimed to be damaged, and precisely how it will be damaged; but this can be remedied by amendment. Had the petitioner demurred to the cross-petition, instead of moving to strike it from the files, the demurrer should have been sustained; but then the party would have been allowed to amend, and might thus have brought before the court such a claim for damages as she would have been entitled to have adjudicated in this proceeding. The rule in equity is, a bill will not be dismissed, on motion, unless it be for want of equity apparent on the face of the bill, and where it is manifest no amendment could help it, or for want of jurisdiction; (Thomas, Trustee, v. Adams et al. 30 Ill. 37;) and at law, if a plea be insufficient in form or substance, the only mode of taking advantage of the defect is by demurrer. It is improper in such case to strike the plea from the files. Orne v. Cook, 31 Ill. 238.

Second — We have held in Smith v. Chicago and Western Indiana R. R. Co. 105 Ill. 511, that under the Eminent Domain act an answer is not allowable, and the principle includes a plea. The plea was therefore properly stricken from the files.

Third — The objection that inasmuch as the petition was filed in vacation, the cause could not be tried at a regular term, is untenable, and the challenge interposed to the array of jurors, and motion to dismiss the petition based on that objection, were properly disallowed and overruled. We held in Bowman et al. v. Venice and Carondelet Ry. Co. 102 Ill. 468, et seq., that a proceeding of this character, though commenced in vacation, maybe tried, as was here done, in term time.

Fourth — We are unable to say whether the court properly rejected, as evidence, the deed from Lucy N. Wight to the city of Galena, and the deed from Lucy N. Wight to Ann Eliza Johnson, and ordinance of the city of Galena, as offered to be read by the attorney for Ann Eliza Johnson, because they are not set forth in the bill of exceptions or certificate of evidence. They may or may not have been properly excluded. This can only be determined by an inspection of their contents, and the burden is on the party alleging error to affirmatively show its existence.

Fifth — The objection that opinions of witnesses not shown to have been experts, were received in regard to the value of the property sought to be taken, is not tenable. Persons who are familiar with the land, and have an opinion of its value, are competent to express that opinion. But the weight of such evidence presents a different question. On that point, where there is equal credibility, superior opportunity and intelligence would, of course, be entitled to the greater weight. (White et al. v. Hermann, 51 Ill. 243; Keithsburg and Eastern R. R. Co. v. Henry, 79 Ill. 290.) Such opinions of witnesses are not to be passively received and blindly followed, but they ai> .'•<* be weighed by the jury, and judged of in view of all the 'evidence in the case and the jury’s own general knowledge of affairs, and have only such considera! jA -wen to them as the jury may believe them entitled to ^ ^Reynolds et al. v. Burlington and Ohio River P 1 -:A

Sixth — On the trial there were nit • .uto Ann Eliza Johnson, to prove that the ,nt. iv lx condemned had a special value h.v rAAcxA yuposes I'yyvA ira general market value, and ; A-,v- .i. .■ . ¿i:ain prices had been offered for the property, x.A¡-A. v, Ax: months of the time of the trial, above tlm v/xiy J v,:-r];A value, — all of which, on objection, the court sxAx-.A A , iiow to be proved; and, consistently with : x!Aj .xxAxpx tlio court, among other things, at the instan re -.A ¡A? ' ¡■..••m.er, instructed the jury:

“Thv jury wx .:.. voted by the court, that the evidence Of certain w'divxve . to what they would give for the property iv * <>¡dr» wí'a-"- i1' not proper evidence for the jury to consider iv r. i.dviiix yt their verdict in this case, that such testimony v.m, -.AA. out by the court, and should not be considered by . x , » UK- Jr(ly.

In these rulings we hold there was error. In St. Louis, Jerseyville and Springfield R. R. Co. v. K,.. 7nt. 104 Ill. 345, we held that it is competent to show, in such uses, that the land proposed to be taken has a special value to the owner by reason of a special profitable use, and he is entitled to compensation for the loss occasioned by deprivation of such special use. In that case the use was that of a training track. It xvas said: “The value of land consists in its fitness for use, present or future, and before it can be taken for public use the owner must have just compensation. If he has adopted a peculiar mode of using that land, by which he derives profit, and he is deprived of that use, justice requires that he be compensated for the loss. That loss is the loss to himself. It is the value which he has, and of which he is deprived, which must be made good by compensation.” And upon like principle we held in Lake Shore and Michigan Southern Ry. Co. et al. v. Chicago and Western Indiana R. R. Co. 100 Ill. 21, that where land has no market value, from the fact of its being li^ed as a right of way for a railroad, and devoted to a special'1 qse of making railroad transfers, estimates of its value with reference to such use, by those competent to speak in that regard, should be received on the question of compensation to be paid for its condemnation for the use of another railroad copipany for its right of way. And in Lafayette, Bloomington and Mississippi R. R. Co. v. Winslow et al. 66 Ill. 219, it was said: “As land and city lots have no standard value, it is right and necessary to take the opinions of witnesses, and to hear the 'facts upon which such opinions are founded. ” -

The principle recognized in these cases clearly leads to this : If property has a special value, from whatever cause, that special value belongs to the owner of the property, and he is entitled to be paid it by the party seeking condemnation. In determining the value of real property in such casos, to the owner, witnesses may give their opinions, and any'special circumstances upon which those opinions are founded, for what they are worth.

For the errors indicated, the judgment is reversed and the cause remanded.

Judgment reversed.


author: Mr. Justice Sheldon

text:
    Andrew Haas v. Alfred Myers et al.

      Filed at Ottawa November 17, 1884.

    1. Contract — by letter or telegraph — when completed. A contract by letter is completed the instant the letter accepting the offer is mailed, and is valid and binding whether the letter of acceptance is received or not.
    2. But where anything else is left to be settled in respect to an offer by mail or telegraph, the acceptance of the offer by telegraphing will not complete the contract where the dispatch does not reach its destination.
    3. A and B contemplated making a large purchase of cattle in the West, and it was agreed that A should go to see the cattle, and telegraph back to B the price per head if a purchase was made, when B was to reply by telegraph, without delay, saying “yes,” if he was willing to take a third interest in the purchase, and then A was to telegraph back to B the estimated amount required to pay a third interest, which B was to place to the credit of A and his brother, in a Chicago bank, so that the latter might draw on the same, and cause the bank to telegraph that fact to A. A bought the cattle for $03,001), and telegraphed B the price q>er head, and he answered “yes, ” which dispatch never reached A. Later, B sent another dispatch to A, saying if the cattle wore good there was no danger in buying them, which was received on the same day that A and another had concluded the purchase by paying the necessary advance. On the next day B arrived, and offered to pay his share of the price, which was declined: Held, that under the circumstances the sending of the first dispatch accepting a share in the purchase, which never reached its destination, did not complete the contract and make A and B partners in the purchase, there being something else to be done besides a mere acceptance, to carry out the contract, and also that B’s offer to pay on the day after the purchase, and payment of the price, was too.late.
    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.
    This was a bill in equity, filed by Andrew Haas, to have himself declared a partner with Alfred Myers in respect to a certain lot of cattle, and for an accounting.
    The material facts appearing are, that during 1882, Haas’ business was buying cattle, and shipping them to sell in the Chicago market; that during the same time, Alfred and Benjamin Myers, and William H. and James E. Martin, were engaged in the same business, — Alfred and Benjamin Myers as partners under the firm name of A. Myers & Bro., and the Martins as partners under the name of Martin & Bro., and during that time the Myers and Martins were jointly engaged in the same business. Prior to September 20, 1882, Haas and Alfred Myers had, respectively, been negotiating for the purchase of a lot of cattle in Montana, known as the “Murphy herd, ” and on -that day, Alfred Myers being about to visit the range where the cattle were kept, the two agreed that Myers would ascertain at what price the cattle could be purchased, and buy them if he saw fit; that in ease he bought, he should telegraph Haas at Chicago, indicating the price per head; that thereupon Haas was to' reply by telegraph, at once and without delay, saying “Yes, ” or “No;” that if he replied “yes, ” Myers, on receipt of the telegram, was to telegraph back to Haas the estimated amount required to pay for one-third interest in the cattle, which amount Haas was at once to place to the credit of A. Myers & Bro., at the First National Bank of Chicago, in order that Myers & Bro. could immediately draw for the same to pay toward the cattle, and Haas was to cause the bank to telegraph such credit to A. Myers & Bro. at Billings, Montana, which being done, Haas was to have one-third interest in the cattle. Myers proceeded to the range, and on September 26 made a trade with Joseph Murphy for the cattle, at $45 per head all around, the cattle to be taken at the ranch, Myers paying $5000 cash down as earnest money to bind the bargain, and agreeing to pay $15,000 more before the cattle were moved, and the balance of the purchase price at the time of the final shipment of the cattle at Billings, Montana, the purchase price being about $55,000, and agreeing also that the cattle should be moved Yvithin thirty days. The trade was to be concluded at BPings. Murphy and Myers proceeded to Billings, arrivipg tnere on the 28th of September, and on the samq day Myers telegraphed to Haas at Chicago, as follows:
    “Do you. want Murphy’s forty-five, at ranch? Answer.
    A. Myebs. ”
    At once on receiving this, and on September 29, Haas telegraped back:
    “Yes, I will take third interest. Will leave for Billings to-night, ”
    This dispatch never reached Myers or Billings. Later, and within an hour, Haas sent a further dispatch:
    “If Murphy cattle are good, there is no danger in buying them. Davis-Hauser cattle sold close to five cents through.
    A. Haas.”
    This dispatch was received by Myers on October 2. No other dispatch or information than this last one being received from Haas by Myers, though Myers inquired frequently at the telegraph office for any reply from Haas, and in the meantime William H. Martin, one of the partners, having joined Myers and Murphy at Billings, on the 2d day of October the contract with Murphy was concluded, and Myers and Martin themselves raised and paid the whole $15,000, Murphy having refused to wait any longer, and declared that if it were not paid on that day he would refund the $5000 already paid, and “call the trade off.” The next day (October 3) Haas appeared at Billings and claimed a third interest in the contract, insisting that he had sent to Myers the first above mentioned dispatch. Myers informed Haas that he had never received any such telegram, but had received the one last named, about there being “no danger in buying” the cattle, etc., and that only, and that he and Martin had raised and paid the necessary funds the day before, and that he (Haas) was entitle ó ir no interest in the purchase. Haas and Myers went tog.dher to the telegraph offices at Billings, to ascertain whether or not such dispatch (the one first named) had been received there. It was ascertained that no suck dispatch had been received there, and Myers reiterated hiL refusal to permit Haas to have any interest in the cattle, notwithstanding Haas stated that he was ready to pay his share, and to do what might be required of him. Myers and his associates shipped the cattle to Chicago, and made a net profit thereon of $19,100. That amount remained in the hands of Adams & Burke, commission merchants at Chicago.
    This bill was filed October 31, 1882, praying that Haas might be declared to be a partner to the extent of one-third interest in the purchase of the cattle; that an accounting might be had between the partners, and a decree granted the complainant for the one-third share of the net profits, and an injunction restraining the payment over of the money by Adams & Burke. A temporary injunction was granted, and afterwards, on the final hearing, the injunction was dissolved and the bill dismissed. On appeal to the Appellate Court for the First District the decree was affirmed, and a further appeal taken to this court.
    Messrs. Dotee, Judah & Willard, for the appellant:
    If a party makes a proposition by letter, it is a continuing one; and when the other party accepts and mails his letter of acceptance, from .that instant the contract is complete and binding, even if the letter never reaches its destination,— and the courts apply the same rule to like correspondence by telegraph. 1 Chitty on Contracts, (11th Am. ed.) 18, note m; Taylor v. Merchants' Fire Ins. Co. 9 How. 390; Moctier v. Frith, 6 Wend. 103; Household Fire Ins. Co. v. Grant, L. R. 4 Exch. Div. 216; Hallock v. Insurance Co. 26 N. J. 280; Trevor v. Wood, 36 N. Y. 307; Minnesota Oil Co. v. Collier Lead Co. 4 Dill. 431; Vassar v. Camp, 14 Barb. 341; Abbott v. Shepard, 48 N. H. 14; 2 Parsons on Contracts, *582; Pomeroy on Contracts, 95.

      Messrs. Judd & Whitehouse, and Mr. William Ritchie, for the appellees:
    The mere mailing of a letter accepting a proposition does not complete a contract when the letter is never received. The proposer not receiving any reply, may consider that his proposition has not been accepted. 2 Langdell’s Cases on Contracts, 993, 994; McCullough v. Eagle Ins. Co. 1 Pick. 278; Lewis v. Browning, 130 Mass. 175; Harris’ case, L. R. 7 Ch. App. 597; Finucan’s case, 20 L. T. R. (N. S.) 729; Hibb’s case, L. R. 4 Eq. 12; Reidpath’s case, L. R. 11 Eq. 86; Townsend’s case, L. R. 13 Eq. 153; Pellat’s case, L. R. 2 Ch. 527; Gunn’s case, L. R. 3 Ch. 40; Sahlgren’s case, id. 323; British Telegraph Co. v. Colson, L. R. 6 Exch. 115.
    But were the rule as contended by appellant, it is not applicable here, — first, because Haas did not use all proper means to assure the delivery of his reply telegram, (Pollock on Contracts, 20; Langdell on Contracts, sec. 15;) second, it is inapplicable because this is the ease of a telegram — not a letter. The company is liable to the sender, and not the receiver', for a failure to transmit or deliver the message. Playford v. Telegraph Co. L. R. 4 Q. B. 706; Dickson v. Telegraph. Co. L. R. 2 C. P. 62; Rev. Stat. 1874, chap. 134, sec. 6.
    The terms of the contract plainly imply that Haas’ reply should actually reach Myers, and within a very short time, to make it binding. It was competent for Myers to make the completion of the contract depend upon such actual receipt of Haas’ reply, and within a reasonable time. Pollock on Contracts, 17; Leake on Contracts, 39, note.
    Such condition may be as well inferred from the acts of the parties. Maclay v. Harvey, 90 Ill. 529; Lewis v. Browning, 130 Mass. 175.
    Again, if the reply had reached Myers it would not conclude the contract, as considerable remained to be done by both sides after that. 1 Wharton on Contracts, sec. 17.
   Mr. Justice Sheldon

delivered the opinion of the Court:

It is insisted upon on the part of the appellant, that the partnership here claimed was actually formed; that if there was not a literal there was a substantial performance by Haas of the conditions of the contract; that he did all that he could, — telegraphed, as he had agreed, his acceptance,— and could do no more until action by Myers; that not putting up his share of the money in the manner provided, was because of the failure of Myers to advise him by telegram of the amount necessary; that the telegraphic acceptance sent by Haas, although not received, had all the legal effect it could have had if it had been received by Myers. In support of this last proposition the rule governing the negotiation of contracts by correspondence through the mail is appealed to, and it is contended the same rule applies in the negotiation of a contract by telegraph, — that rule being, that where parties undertake to contract by letter, and one party makes a proposal by letter, and the other by letter accepts and posts his acceptance, the minds of the parties have met, and from the instant of mailing the acceptance the contract is a valid and binding ue. See Household Fire Ins. Co. v. Grant, L. R. 4 Exch. Di-v. 2.^u; Taylor v. Merchants’ Fire Ins. Co. 9 How. 390; Mactier v. Frith, 6 Wend. 103; Hallock v. Insurance Co. 2 Dutch. 268; Minnesota Oil Co. v. Collier Lead Co. 4 Dill. 431; Abbott v. Shepard, 48 N. H. 14; Trevor v. Wood, 36 N. Y. 307; Pomeroy on Contracts, 95, and cases there cited. Although there be contrary authority that a contract made by mutual letters is not complete until the letter accepting the offer has been received by the person making the offer, (see Leivis v. Browning, 130 Mass. 175,) we regard the weight of authority to be in favor of the rule as first above stated. A distinction has been taken, that though in general such a contract takes effect from the time of acceptance, and not from the subsequent notification of it, yet the offerer may not be bound by the fact that the letter of acceptance had been put in the post-office, if the letter never reached its destination. The preponderance of authority does not appear to sustain this distinction, but to hold that the mailing of the letter of acceptance completes the contract, whether the letter reaches its destination or not. In the above cases, in 4 Dill, and 36 N. Y., it was held that the same rule applied in the case of •correspondence by telegraph as in the case of correspondence through the mail. Whether the rule does so fully apply in the former case we do not find it necessary now to determine, as, conceding that it does, we do not consider that the rule has application to the facts of the present case. We think that under the arrangement entered into between the parties, the formation of the contract was made dependent upon the actual communication by telegraph, to Myers, of Haas’ acceptance. This is not the case of an offer made, and where the simple acceptance completes the contract between the parties. Haas’ reply, if it had reached Myers, was not the conclusion of the bargain. Considerable remained to be done afterward, on both sides. Myers, after receipt of the dispatch, was to telegraph again, giving the amount to be deposited. Haas was to depo'' ms amount. The bank was then to telegraph the credit to Myers, so as to make it available for the purchase of the cattle.

We think, too, the terms of the contract imply that Haas’ answer that he would take a third interest, should actually reach Myers, and within a very short time, or the contract would not be binding. A large purchase was involved, requiring the payment of a considerable amount of money. Promptness was necessary, and it was important that Haas should furnish his share of the purchase money necessary to complete the purchase. It was uncertain whether the cattle would be purchased by Myers, and if so, whether Haas yrould ■want a third interest in them at the price they could be purchased for. It was therefore arranged that if Myers purchased, he should telegraph Haas the price per head, and if Haas wanted a third interest at the price, he should, immediately after receiving Myers’ dispatch, answer back, by telegraph, “Yes” or “No.” If the answer was “yes,” then Myers would immediately inform Haas, by telegraph, of the amount of money that would be required to be placed j the credit of A. Myers & Bro. at the First National. Bank in Chicago, in order to secure a third interest in the purchase of the cattle.. Now, Haas never did advise Myers, by telegraph, that he would take an interest. No such telegram ever came to Billings, — the place of destination. Manifestly, delivering the message containing an affirmative reply to the telegraph office for transmission, did not answer the purpose. Myers could not act upon that mere delivery. He must have knowledge. Haas was to telegraph, and if the answer was “yes, ” Myers was to telegraph back the amount of money required; but he could not telegraph back what was the amount of money needed until he was informed of Haas’ desire to take a third interest, — until he had received the telegram “yes.” This shows that it was in the contemplation of the parties that this telegram should not merely have been.. deposited for transmission, but that it should have been transmitted and been received before there could arise between the parties any completed contract. It was essential that notification of Haas’ desire,to ha,ve a part in the purchase should have come to Myers, to enable him to inform Haas of the amount of money needed from him, and so enable Haas to perform on/ his part by furnishing his share of the purchase money.

But further,' within an hour after depositing in the telegraph office, for transmission, his telegram of acceptance,— “yes, ” — Haas sends this misleading dispatch: “If Murphy cattle are good, there is no danger in buying them,” — and this telegram was received by Myers October 2, and was the only one received by him, or that ever came to Billings in answer to his inquiry if Haas wanted an interest in the purchase. What was Myers to understand from this ? If Haas wanted an interest in the cattle, the telegram agreed upon between him and Myers by which he should signify that wish, was the word “yes.” This was not such a telegram, and it did not express any idea that Haas wanted or would take an ínteres ‘n the cattle. It stated merely that upon a certain hypothesis, — if the Murphy cattle are good, — there is no danger in buying them. We think that Myers was justified in taking this dispatch sent by Haas, as an abandonment of all interest in the contract, or at least as denoting a want of consent on Haas’ part to take an interest in the cattle, and a want of intention of completing the proposed contract in furnishing a part of the purchase money, and that Myers could not place further reliance thereon, but might well proceed in the completion of the purchase from Murphy, by raising himself, and with the assistance of Martin, the whole amount of the $15,000 required to be paid on that day to Murphy, and claim the purchase as being his own, to the exclusion of Haas from any share in it. This second telegraphic dispatch did not come within any arrangement made between Haas and Myers, but was Haas’ own independent, voluntary act, and he alone is to blame for its misleading effect. The $15,000 which was to have been paid on moving the cattle from the ranch, Murphy was insisting must be paid on October 2, or that he would refund the $5000 paid, and declare the trade “ off, ” — that he would not wait any longer. Myers and Martin, after receipt of that dispatch, raised the money on that day, and paid it. To be sure, Haas appeared in person at Billings the next day, and offered to perform. This, we think, was too late. It would not be a substantial performance. It was essential that he should have performed before; that he should have contributed his share to the payment of the purchase money that was paid to Murphythat he could not, after leading Myers to think that he did not want an interest in the purchase, and the latter and Martin raising and paying all the purchase money required, come in afterward, though only the next day, and then offer to pay his share of the money, and demand the right of participation in the purchase. To have then admitted Haas into the purchase would have been but a matter of favor with Myers— not of• obligation.

We think the decree dissolving the injunction and dismissing the bill was right, and the judgment of the Appellate Court will be affirmed.

Judgment affirmed.


author: Mr. Justice Mulkey

text:
    Thomas R. Armstrong v. Henry Warrington et al.

      Filed at Ottawa November 17, 1884.

      Cboss-bhiIi — decree of foreclosure — as to surplus — to junior mortgagee without cross-bill. On bill to foreclose a prior mortgage, in case of a sale the junior mortgagee will be entitled to the surplus, after satisfying the first mortgage, upon his answer alone, disclosing his interest, without filing a cross-bill.
    Writ oe Error to the Appellate Court for the First District ; — heard in that court on writ of error to the Circuit Court of Cook county; the Hon. W. W. Farwell, Judge, presiding.
    Messrs. G. W. & J. T. Kretzinger, for the plaintiff in error:
    To obtain affirmative relief a defendant must file a cross-bill. White v. White, 103 Ill. 440 ; Tarleton v. Vietas, 1 Gilm. 470; Edwards v. Helm, 4 Scam. 143; McConnell v. Hodson, 2 Gilm. 640; Mason v. McGirr, 28 Ill. 322; McCagg v. Heacock, 42 id. 153.
    The answer of defendant Sarah J. Armstrong being purely a defensive one, to defeat a foreclosure, it was error to decree her affirmative relief.

      This court has held that a defendant, after fully answering the bill, may state facts upon which to pray for affirmative relief, making his pleading both answer and cross-bill, (Thielman v. Carr, 75 Ill. 389, Purdy v. Henslee, 97 id. 394,) though the contrary is held in McConnell v. Hodson, 2 Gilm. 640.
    Messrs. Abbott & Johnson, for the defendants in error s
    Thomas E. Armstrong was not entitled to notice of the taking of the evidence before the master, being in default. Moore v. Titman, 33 Ill. 366.
    On bill to foreclose, the practice is to ascertain and settle the rights of all persons, and direct the application of the proceeds of the sale, in satisfaction of each incumbrance, according to priority, — and this, too, whether junior mortgagees shall or shall not file cross-bills. Ellis v. Southwell, 29 Ill. 552; Walker v. Abt, 83 id. 226.
   Mr. Justice Mulkey

delivered the opinion of the Court:

The principal question involved in this case, and, indeed, the only one we deem of sufficient importance to notice, is, whether one holding a junior mortgage, who has been brought into court upon a bill to foreclose a prior mortgage, will, upon answer disclosing his interests, be entitled, in the event of a sale of the mortgaged premises, to have the surplus, after satisfaction of the prior mortgage, applied to the payment of his own, without filing n cross-bill. This question must be answered in the affirmative. It is not a new one in this court, and so far as we are advised the ruling upon it has uniformly been in conformity with the conclusion just stated. Ellis v. Southwell, 29 Ill. 552; Walker v. Abt, 83 id. 226; Sales v. Shephard, 99 id. 621.

The judgment of the Appellate Court which is sought to be reversed by the present writ of error being in conformity with this view of the law, is therefore affirmed.

Judgment affirmed.


author: Mr. Justice Craig

text:
    La Roy Griffin v. Charles Larned.

      Filed at Ottawa November 17, 1884.

    1. Pbactioe — as to manner of delivering verdict. A verdict may be reduced to writing and signed by the jury, or it may be delivered oro tenus by the foreman. Whatever may be pronounced as the verdict by the jury in open court, whether in writing or verbally, through the foreman, will be regarded as their verdict.
    2. Same — os to control over verdict by the jv/ry after making and sealing same. A jury, by direction of the court, made and sealed up a verdict in writing, signed, however, by only eleven of their number, assessing the plaintiff’s damages at “fourteen hundred and sixty-seven and eighty-eight cents,” leaving out the word “dollars,” delivered the same to the clerk of the court, and separated for the night. Next morning the clerk read the verdict, publicly, as it should have been, making the damages $1467.88, and asked the jury if that was their verdict, and the foreman said it was, and they were discharged: Held, that the verdict as read in open court was the only verdict in the case, and that it was immaterial what was the form of the one written out by the jury.
    Wbit of Ebbob to the Appellate Court for the First District ; — heard in that court on writ of error to the Superior Court of Cook county; the Hon. Elliott Anthony, Judge, presiding.
    Mr. Lynn Helm, for the plaintiff in error:
    A verdict must find the issues submitted, and should be regular in form, explicit, certain, and free from ambiguity. 3 Graham & Waterman on New Trials, 1376-1378; 1 Paine & Duer’s Practice, 544; Diehl v. Peters, 1 S. & R. 367; Hayward v. Bennett, 3 Brev. 113; Moody v. Keener, 7 Port. 218.
    The courts will not permit even a general verdict to stand, if it is unintelligible.
    A verdict for the plaintiff must find the amount of the debt sued for, or assess the damages; and in the event of a failure to do so, a court is not warranted in supplying the deficiency. 10 Bacon’s Abr. 361; Trials per pais, 259; Hirth v. Lynch, 96 Ill. 409; Long v. Linn, 71 id. 152; Van Benthuysen v. De Witt, 4 Johns. 213; Drage v. Brand, 2 Wils. 377; Hardy v. Bern, 5 T. R. 636.
    A defect in a verdict can not be remedied by amendment after the verdict has been delivered and the jury discharged. Wilcoxon v. Roby, 3 Gilm. 475; Bodine v. Swisher, 66 Ill. 536; Walter v. Junkins, 15 S. & R. 414.
    A special verdict, to be valid, must be reduced to writing, and signed by the jury and delivered to the clerk, before the jury separate. After the jury separate the verdict can not be amended. Sage v. Brown, 34 Ind. 469; Sargent v. State, 11 Ohio, 472; Sutliff v. Gilbert, 8 id. 445.
    When a verdict is uncertain and defective, it is the duty of the court to award a venire de novo. A judgment which is uncertain and defective, which has no word, mark or character to indicate for what the judgment was rendered, will not be sustained. Avery v. Babcock, 35 Ill. 175; Lawrence v. Fast, 20 id. 338; Lane v. Bommelmann, 21 id. 143; Dukes v. Rowley, 24 id. 211; Bailey v. Doolittle, id. 577.
    Messrs. Hawley & Hanchett, for the defendant in error:
    A verdict, whether sealed or not, does not depend for its validity upon its being signed, but upon the jury pronouncing it to be their verdict in open court. This may be done through their foreman. Martin v. Morelock, 32 Ill. 486; Nomaque v. People, Breese, *109; Crotty v. Wyatt, 3 Bradw. 388; Root v. Sherwood, 6 Johns. 68; Blakely v. Sheldon, 7 id. 33.
    When a verdict is read- by the clerk in open court, and is affirmed by the foreman, it is the plain right and duty of the jury to then (as they may not after their discharge) express their dissent, if any they have; and silence under such circumstances must be taken as tacit assent. Broom’s Legal Maxims, 140, 908; Suver v. O’Riley, 80 Ill. 104; Martin v. Morelock, 32 id. 486; Powell v. Feeley, 49 id. 143.

      Not only the form but the substance of the verdict is within the control of the jury until their discharge, and they may vary or correct it before such discharge. Martin v. Morelock, 32 Ill. 486; Osgood v. McConnell, id. 75; Faulk v. Kellums, 54 id. 189 ; Blakely v. Sheldon, 7 Johns. 33; Ashton v. Touly, 131 Mass. 26.
    It-was the duty of the jury to respond, through their foreman, when asked by the clerk if the verdict read was their verdict; and the court will not indulge the presumption that they violated their oaths by silently assenting to what was not the verdict they meant to render. Suver v. O’Riley, 80 Ill. 104; Brown v. Rounsavell, 78 id. 589; Practice act, sec. 24; Broom’s Legal Maxims, 87, 137, 908.
    When a verdict is informal, it may be put in form, according to the justice of the case, before affirmance, if the point in issue can be collected from the finding. O’Brien v. Palmer, 49 Ill. 72; Brown v. Rounsavell, 78 id. 589 ; Osgood v. McConnell, 32 id. 75 ; Hartford Fire Ins. Co. v. Vanduzer, 49 id. 489; Boynton v. Phelps, 52 id. 210; Faulk v. Kellums, 54 id. 189; Jones v. Julian, 12 Ind. 274; McRae v. Colclough. 2 Ala. 74; Battles v. Braintree, 14 Vt. 348; Meade v. Smith, 16 Conn. 346; McGregor v. Amrill, 2 Clarke, 30.
    A verdict, after being read by the clerk in open court, may be varied by the jury, hpfore affirmance as their verdict. Root v. Sherwood, 6 Johns. 68; Blakely v. Sheldon, 7 id. 33; Martin v. Morelock, 32 Ill. 485; Suver v. O’Riley, 80 id. 104; Rigg v. Cook, 4 Gilm. 336.
   Mr. Justice Craig

delivered the opinion of the Court:

We have been favored.with no argument in support of the first and second errors assigned, and hence we have concluded that they have been abandoned, or at least are not relied upon here. The point discussed and relied upon in the argument is, that the court erred in rendering judgment on the verdict.

It appears from the record that the trial, which was in an action of assumpsit on a promissory note, occurred on the first day of February, 1883. After the respective parties had introduced their evidence :the jury retired, and as the hour for adjournment had arrived, the court ordered the jury, in the event they should agree before the meeting of the court on the next day, to seal up the verdict, deliver it to the clerk, separate, and meet the court when court convened on the next morning. The jury agreed upon a verdict, which was reduced to writing, sealed, and delivered to the clerk. On the following day, being one of the days of the January term, the jury being present in court and the counsel of the parties present, the clerk of the court, in the presence of the jury and by order of court, opened the sealed verdict, which was in the words and figures as follows, to-wit:

“Chicago, Feb. 1st, 1883.
“We, the jury, find the issues for the plaintiff, and assess his damages at (1467.88) fourteen hundred and sixty-seven and eiglity-eight cents.”
This was signed by eleven jurymen. But the clerk read said verdict to the jury as though the same had been as follows:
“Chicago, Feb. 1st, 1883.
“We, the jury, 'find the issues for the plaintiff, and assess his damages at fourteen hundred and sixty-seven dollars and eighty-eight cents.”

—And then and there asked the jury if the same was their verdict. The said jury, through its foreman, said that it was, whereupon they were discharged, and judgment was rendered on the verdict for $1467.88.

A verdict may be reduced to writing.and signed by the jury, or it may be delivered oro tenus by the foreman. The validity of a verdict does not depend upon its being reduced to writing and signed by the members of the jury, but whatever may be pronounced as the verdict by the jury in open court, whether in writing, or verbally through the foreman, is to be regarded as the verdict of the jury. The fact that a jury may be directed to seal their verdict and deliver it to the clerk, is of no consequence. When the verdict is read in court, if any one of the jurors declares that it is not his verdict, then there is no verdict upon which a judgment can be entered. In Root v. Sherwood, 6 Johns. 69, where the validity of a sealed verdict was under consideration, it is said: “There is no verdict of any force but a public verdict given openly in court. Until it was received and recorded it was no verdict, and the jury had a right to alter it, as they may a parol verdict.” See, also, Blakely v. Sheldon, 7 Johns. 33; Rigg v. Cook, 4 Gilm. 336; Martin v. Moreloek, 32 Ill. 485. In the last case cited it was ruled that a verdict was not considered valid and final until pronounced in open court. Either party has the right to have the jury examined by the poll before the verdict is recorded.

Here a verdict was reduced to writing and signed by the jurors. The word “dollars” was omitted from the amount which they had determined plaintiff should recover; but the clerk of the court, in reading the verdict, supplied the omission, and the jury, in response to the question propounded by the clerk, through its foreman declared that the verdict as read by the clerk was their verdict. Under such circumstances it was immaterial what the written verdict contained, or what may have been its omissions or defects. The verdict of the jury was delivered orally in court by the foreman, in the presence and hearing of the other jurors. That verdict was in due form, and judgment was properly rendered by the court upon it. The verdict as read by the clerk and rendered by the jury was their verdict, and their only verdict.

The judgment of the Appellate Court will be affirmed.

Judgment affirmed.