author: Mr. Justice Scholfield

text:
    Jerry M. Cox v. Allen M. Pierce.

      Filed at Ottawa May 12, 1887.

    1. Oral evidence in chancery—of evidence taken before the master— giving further evidence after report by the master—the statute construed. Section 39, chapter 22, of the Revised. Statutes of 1874, which provides that the court may refer a chancery cause to a master in chancery or special commissioner, “to take and report the evidence, with or without his conclusions, ” means that the master shall report all the evidence, written or oral.
    2. Section 39, chapter 22, and section 38, chapter 51, are to be construed as parts of a single system, so as to give effect to each. Those sections, taken and construed together, mean, that oral testimony, instead- of depositions, shall be taken on the trial of every suit in chancery, when desired by either party; but when a cause is referred to the master to take and report the evidence, with his conclusions thereon, that all the evidence, whether in depositions or documents, or to be detailed by the witnesses, must be introduced before him, and that when thus introduced and reported it is to be considered as taken on the trial.
    3. So, when there is a reference to the master, in a suit in chancery, to take and report the evidence, with his conclusions, it is not competent, on the hearing of exceptions to the report, or on the hearing of the cause, for the court to hear any evidence that was not before the master.
    Appeal from the Appellate Court for the Second District;— heard in that court on appeal from the Circuit Court of Stark county; the Hon. T. M. Shaw, Judge, presiding.
    Mr. M. Shallenberger, Mr. B. F. Thompson, and Mr. James H. Miller, for the appellant:
    Under the statute, either party has the right to introduce oral testimony on the hearing of a chancery cause. Owens v. Ranstead, 22 Ill. 161; Maher v. Bull, 39 id. 332.
    Mr. Miles A. Fuller, for the appellee:
    The parties were not denied the right to offer any testimony before-the master. The cases cited by appellant were not heard before the master, and are not in point.
   Mr. Justice Scholfield

delivered the opinion of the Court:

A full statement of this case will he found in 22 App. Ct. Bep. 43, and we entirely concur in the conclusion there reached, and in all that is there said on the questions of facts.

We deem it necessary to notice, here, only one question of law discussed in the arguments of counsel. The bill is for an account of partnership dealings. An answer was filed, putting in issue the material allegations of the bill, and to this there was filed a replication. The court afterwards referred the cause to the master in chancery, to take the evidence and report it to the court, and thereafter the court further ordered, that the master in chancery, “on concluding the taking of testimony, state the account between the said parties, and report the same, with the evidence taken by him, ” to the court. The master in chancery proceeded, in compliance with the order, to take the testimony and state the account between the parties, and he prepared a report thereof, which he submitted to the respective parties. The present appellant filed exceptions to the report, which the master disallowed. The report, together with the evidence taken, and appellant’s exceptions to the report, were then filed in the circuit court. By agreement of parties, entered of record, the chancellor heard the case, upon the report, exceptions,- etc., and accompanying evidence, in vacation, and then sustained the exceptions, and decreed that the cause be again referred to the master, and that he restate the account. In obedience to this order, the master restated the account, and made a report thereof to the respective parties, and the appellant filed exceptions to this report also, but the master disallowed them. This report, and the exceptions thereto, and the evidence' taken, were afterwards filed in the circuit court, and appellant there renewed his exceptions to the master’s report, but they were overruled by the court,—and, thereupon, appellant, after identifying certain books as the account books of the firm, offered to read them in evidence, but the court refused to allow them to be so read. Appellant then offered to 'prove, by oral evidence, facts tending to show that the account, as stated by the master, was not correctly stated, but the court likewise refused to allow this proof to be made, and thereupon decree was rendered, in conformity with the master’s report, in favor of appellee.

Prior to the act of February 12, 1849, (Scates’ Comp. 166,) oral evidence was not heard in chancery cases, but all evidence was presented by depositions. That act, however, provided, that “on the trial of any suit in chancery, the evidence on the part of either plaintiff or defendent may be given orally.” And in Owens v. Ranstead, 22 Ill. 161, it was held that the court can not deprive parties of their right, under this statute, to introduce oral evidence, by a rule of court excluding it, unless ten days’ previous notice of the intention to offer such evidence shall be given. And in Maher v. Bull, Admx. 39 Ill. 531, it was held, that the court can not, by an order to close proofs by a particular time, prevent a party from giving oral evidence,’ under this statute, on the hearing. Neither case, however, it will be noticed, has any relevancy to a hearing before a master in chancery, and when they were decided, there was no statutory provision authorizing a reference to a master in chancery. Since, these cases were decided, our legislature, by an act approved May 15, 1872, (2 Gross’ Stat. 1873, p. 35, sec. 39,) has enacted: “The court may, upon default, or upon issue being joined, refer the cause to a master in chancery, or special commissioner, to take and report evidence, with or without his conclusions thereupon. ” (See, also, note at bottom of page 36, id.) This section is reproduced, literally, as. section 39 of chapter 22, entitled “Chanceiy, ” in the revision of 1874; and the substance of the act of February 12, 1849, is reproduced in that revision as section 38 of chapter 51, entitled “Evidence and Depositions,’” in these words: “On the trial of every suit in chancery, oral testimony shall be taken, when desired by either party. ”

These sections must, then, be construed as parts of a single system, and so as to give effect to both. We can not suppose that the legislature intended to confer upon the circuit courts so useless a power as that of referring causes to masters in chancery to take and report the evidence, together with their conclusions thereon, when such evidence and report might be entirely disregarded by either party, and the court be required to again listen to all the evidence detailed orally by witnesses. The words, “the evidence in the case,” unquestionably mean all the evidence in the case, and the only purpose in allowing it to be referred to the master to take it and report it, with or without his conclusions thereon, to the court, is to lighten, to that extent, the labors of the court. It must therefore have been intended that oral evidence, instead of depositions, shall be taken on the trial of every suit in chancery, when desired by either party; but when it is referred to the master to take and report the evidence in the case, and his conclusions thereon, all the evidence, whether in depositions or documents, or to be detailed by the mouths of living witnesses, must be introduced before him; and when thus introduced, and afterwards properly reported by tlje master to the court, it is, in the language of section 38, chapter 51, supra, “taken on the trial.” And on the assumption that this is the correct construction of the sections, we held in Prince v. Cutler, 69 Ill. 267, that upon hearing exceptions to the master’s report, it is not competent to hear any evidence that was not before the master when he made his report. See page 272.

If the evidence .offered was not admissible upon the question of confirming the report, it can not be admissible to contradict it, for to allow it for that purpose would be only to do indirectly -what is not allowed to be done directly. The ruling was right.

The judgment of the Appellate Court is affirmed.

Judgment affirmed.


source: Caselaw Access Project

author: Mr. Chief Justice Scott

license: Public Domain

text:
    William H. Thatcher v. The Chicago and Northwestern Railway Company.

      Filed at Ottawa May 12, 1887.

    1. Municipal taxation—under special charters—of the purpose and rate of taxation allowable—under the act of 1883. By the act of 1883, cities not organized under the general law, but acting under special charters, are authorized to levy and collect, in addition to the municipal taxes authorized by their charters and the act of 1881, taxes for the distinct objects named in the act of 1883.

      i

    2. A city, under such conditions, has the rightful authority, under the act of 1883, to levy a tax, not to exceed three mills on the dollar, as a sewerage fund tax, and one mill on the dollar for a -water fund tax, or. three mills, if voted for by two-thirds majority of all the members of the legislative authority, in addition to all the other taxes it is authorized to levy and collect by law.
    Appeal from the Circuit Court of Whiteside county; the Hon. Joseph M. Bailey, Judge, presiding.
    The bill in this case was brought by the Chicago and Northwestern Railway- Company, against William H. Thatcher, treasurer of Whiteside county and ex officio collector of taxes. The object of the bill is to enjoin the collection of certain municipal taxes levied and assessed by the city of Sterling on the property of complainant, situated within the limits of such municipality. On the hearing of the cause in the circuit court, on bill, answer, replication and proofs, the court rendered a decree enjoining the entire tax levied on the property of complainant, and from that decree the collector appealed to this court.
    Mr. A. A. Wolfersperger, and Messrs. Manaban & Ward, for the appellant.
    Mr. B. C. Cook, for the appellee.
   Mr. Chief Justice Scott

delivered the opinion of the Court:

Only municipal taxes are involved in this litigation. Concerning the principal facts there is no controversy. The value ■of complainant’s property situated within the limits of the municipality imposing the tax, is admitted. Nor is there any point made as to the regularity or validity of the ordinance directing the levying and assessing of the tax complained ■of. It was done by -ordinance in the usual mode. The only question made is, whether the city had authority to levy the tax which is sought to be enjoined. The rate per cent levied is one and ninety-five one-hundredths of one per cent. Of ■this rate, it is conceded the city had rightful authority to levy ■one and one-half per cent in any one year, if done in conformity with its charters and certain enabling acts. The°contention is as to the rate per cent above that amount—that is, as to forty-five one-hundredths of one per cent. It is said, this forty-five one-hundredths of one per cent can only be legal if the right to levy it is given by the act of 1883, in addition to all other taxes theretofore authorized by law,—in other words, do the provisions of the act of 1883, in reference to sewerage fund tax and water fund tax, mean that said taxes shall be levied in addition to all other taxes authorized by law. The argument is, it is not declared so by the act itself. But let us see how that is, and ascertain the true construction of the act of 1883.

By its original charter the city was authorized to levy and •collect taxes for municipal purposes; but that power was so restricted, it could not levy, in any one year, a greater rate -than one-half of one per cent on each dollar’s worth of taxable property without the consent of a majority of the legal voters. By the act of May, 1881, it was provided, the rate of taxation in all cities, villages and towns of this State where a less per cent had been authorized, should be extended to ■one per cent of the valuation of the taxable property within their respective limits, in addition to school taxes and taxes to pay interest on registered bond indebtedness. It is admitted the city was not authorized to levy a tax for school purposes in any amount whatever, and no part of the levy made is for school purposes. But prior to the passage of that act the city had a large “bonded indebtedness, ” which may fairly be said to come within the description of “registered bonded indebtedness, ” as those terms are used in the statute. • One very considerable item in the tax ordinance is on account of that indebtedness, and no reason is perceived why that tax is no.t lawlul. But, as before remarked, the question most discussed is, what power is given by the act of 1883 in addition to the power given by the charter and the act of 1881. It is- plainly evident, the act of 1883 provides, in relation to the sewerage fund tax, the city council shall have the right to levy a tax not to exceed three mills on the dollar, if voted for by two-thirds of the legislative authority, and one mill on the dollar for a water fund tax, or three mills, if voted for by two-thirds majority of all the members elect of the legislative authority of the city; and also provides, that in addition to all other taxes then authorized by law, three mills on the dollar may be levied for the purpose of lighting the streets, and two mills for the exclusive purpose of supplying water.

Counsel for complainant does not contend this act does not give authority to the city to levy the rate per cent specified for lighting streets, in addition to the tax authorized by its charter and the act of 1881; but the point insisted upon is, that in relation to the sewerage fund tax and the water fund tax, no authority is given to the city, by the act of 1883, to levy such taxes in addition to the amounts previously authorized by law. Although not entirely free from doubt, it is thought the point made is not well taken. The question made is purely one of construction, and very little light is shed upon it by any previous decision of this court. In Weber v. Traubel, 95 Ill. 427, it was held, the limitation on the rate of taxation fixed by section 4, article 3, of the charter of East St. Louis, was not affected by section 22, article 7, of the same act, which provided for a tax for paying interest on registered indebtedness, and to provide for a’ sinking fund in that connection,—that is, that it was not in addition to the rate per cent authorized to be levied by section 4, article 3. It was so held, because it did not appear it was the legislative intention the rate of taxation, as fixed by the previous section, should be increased. It was said, and very properly, that section 22, article 7, was not a grant of power to impose taxes generally, but simply enjoins the duty of providing by taxation to meet certain registered indebtedness.

In Binkerty. Jansen, 94 Ill. 283, it was' held, the act in regard to the assessment and collection of municipal taxes, approved May 23, 1877, had reference only to the mode or manner of assessing taxes, the purpose being only to require uniformity in that regard, and has no relation whatever to the rate of taxation. The principle of that case can have no application to the case being considered. Nor is it perceived there is anything in Sparland v. Barnes, 98 Ill. 595, that aids in any manner the construction of the act of 1883. The acts construed in that case had reference only to cities under the general law of 1872. Here the city is under a special charter.

Coming now to the direct question involved, it is seen the “sewerage fund tax” is provided for by the first section of the act of 1883, and the “water fund tax” by the second section. In neither section is it stated directly that the tax authorized to be levied by the city shall be in addition to the rate of taxation theretofore authorized by law, nor is it said it shall be included in the former rate that might be lawfully imposed. What, then, was the manifest intention of the legislature? If that intention appears from the whole act when considered together, of course it should control. That it was the intention of the legislature the act would confer power on cities to levy additional tax for the distinct purposes stated, seems manifest from the provision at the close of section 2, which declares that the act “shall not be so construed as to increase the amount of aggregate taxes that may be levied in any one year by any city or village, as provided in section 1, of article 8, of an act entitled “An act to provide for the incorporation of cities and villages,’ approved April 10, 1872.” Unless it was the purpose to give the right to cities to levy an additional rate of taxation to that previously authorized by law, for objects specified, what possible reason could there .be for the provision the act should not be so construed as to confer that right upon cities and villages organized under the general law of 1872? Otherwise there could be no reason for excluding cities and villages, under the general law, from its provisions. It seems clear, therefore, it was the evident intention of the legislature to confer upon cities under special charters, power to levy an additional tax for the distinct objects named,—a power to be exercised only in the discretion of the legislative authority of the city. That has been done in this case, and the tax imposed is warranted by law.

The decree of the circuit court will be reversed, and the bill will be dismissed by this court, for want of equity.

Decree reversed.


author: Mr. Justice Mulkey

text:
    Amasa S. Westcott v. Maria L. Kinney.

      Filed at Ottawa May 12, 1887.

      AppeaIi—whether freehold involved—question as to terms imposed on setting aside tax deed. Where the parties to a bill to set aside a tax title on the ground it is invalid and a cloud on the plaintiff’s title, concede, by stipulation, that the tax deed is invalid, and that it may be set aside on equitable terms, which is done, and one of the parties seeks a reversal of the decree on the ground of error as to the terms imposed, the appeal will not involve any question of freehold, and will not lie directly to this court.

      Appeal from the Superior Court of Cook county.
    Messrs. Peckham & Brown, for the appellant.
    Mr. W. T. Burgess, for the appellee.
   Mr. Justice Mulkey

delivered the opinion of the Court:

The appellee, Maria L. Kinney, filed a bill in the Superior Court of Cook county, against the appellant, Amasa S. Westcott, alleging, among other things, that she was the owner and in possession of certain real estate and premises in said county, particularly described in the bill, in which the defendant, Westcott, claimed some interest, under certain pretended tax deeds, which the bill charges are void, and a mere cloud upon complainant’s title. Upon the hearing, the court found the tax deeds void, and a cloud upon complainant’s title, as charged, and directed that the same be set aside as such, upon the complainant paying defendant, within three months from date of decree, the sum of $776.84, being the amount of taxes and assessments on said premises, together with interest and costs thereon, paid by the defendant in the purchase thereof, and that in the event said sum was not paid by complainant within the time specified, it was further ordered that her bill be dismissed, without prejudice to the defendant’s tax title. The defendant thereupon prayed an appeal to this court, which was allowed.

The controversy in the Superior Court, upon the facts shown, was not as to .the validity of the defendant’s tax deeds, for it was conceded they were invalid. The parties differed solely upon the amount the complainant should pay to the defendant as a condition to the relief sought; and to obviate the expense of bringing up the whole record, the parties entered into a stipulation, embodied in the present record, wherein is recited all the evidence bearing upon the question about which they differed, as just stated, and upon which, alone, they seek the decision of this court. That stipulation, with a view of eliminating everything else from the controversy here, contains this statement: “The defendant, Amasa S. Westcott, by his solicitor and counsel herein, admits that the findings of facts in the said decree above mentioned, entered of record in this court in the said cause, on January 3,1887, are correct, and that the said court was justified, and without error, in setting aside said tax deeds in the said decree described, as clouds upon the title of the said complainant to said lands, but objects, only, and says the court was in error, in relation to the conditions upon which the said deeds were to be set aside and adjudged to be clouds upon the title of said complainant.”

It is very clear, from this stipulation, we are not called upon to review or pass upon any question of freehold, as that is entirely eliminated from the case, if, indeed, it was ever in it. This being so, it is not perceived upon what ground the case was brought here, and none, certainly, has been suggested. It is hardly necessary to say, that where the question sought to be reviewed does not give jurisdiction, it is not competent for the parties to confer it by stipulation. Shortly stated, the question submitted by the stipulation is, whether the complainant was bound to pay, as a condition to the relief sought, not only the amount paid by the defendant at the tax sale, with interest thereon," and subsequent taxes, but also the amount of penalties provided for by the 210th section of the Revenue act. The court below refused to allow the penalties, and it is of this, alone, appellant complains. This question should have been presented to the Appellate Court for determination, and not this.

The appeal must be dismissed. Leave given to withdraw record.

Appeal dismissed.


author: Mr. Justice Craig

text:
    S. W. Meyers v. B. W. Baker et al.

      Filed at Ottawa May 12, 1887.

      1. Camp meetings—section 59 of the Criminal Code considered as a police regulation, not as in restraint of trade, etc. Section 59 of the Criminal Code, making it a penal offence for any one, without the permission of those in charge of a camp meeting, to establish any tent, booth or place for vending provisions or refreshments within one mile of such meeting, with a proviso that any one who has his regular place of business within such limits shall not be required to suspend his business, is not invalid, as being in restraint of trade, or creating a monopoly, or making discriminations, but is a valid law, tending to prevent disturbance and disorderly conduct. The act is ■a mere police regulation, and one within the legislative power.
    2. The proviso in the act, that “whoever has his regular place of business within such limits is not hereby required to suspend his business, ” was not intended to be limited to those who might have a business within the pre■scribed limits at the time the act was passed, but applies equally to all who may, in good faith, establish a place of business therein at any time when •no camp meeting is in progress or being carried on.
    3. The court does not hold that a person, on the eve of a meeting being held, will have the right to establish a booth for the sale of provisions for a ■short period or during a session of a meeting, and claim protection under the proviso. To avail of the law he must have established a regular, permanent business. When that has been done, he will not be required to suspend ■during the time a meeting is held.
    4. The act does not confer power on those in charge of camp meetings to license the sale of provisions and refreshments. The fact that it confers on ■such authorities, the right to consent or refuse consent, can not be held to authorize them to license.
    Appeal from the Circuit Court of Woodford county; the Hon. N. W. Green,.Judge, presiding.
    This was an action of trespass, brought by the appellant, •against B. W. Baker, B. F. Wright, J. F. James, William B. Ward, J. M. Sadler, H. E. Reynolds and F. McPheeters, for •an unlawful arrest and false imprisonment.
    The defence set up by the pleas and the stipulation of facts is, that the appellees lawfully arrested appellant for performing acts which, by section 59, chapter 38, of the Be vised Statutes, are made a criminal offence, to-wit: That while a camp meeting for religious purposes was being held, he did, upon his own land, within one mile of the camp meeting, and without the permission of the authorities having control of it, erect and maintain a booth for vending provisions and refreshments. The appellant had no regular place of business-within the mile limits. His residence was there, but he never kept a booth there, or anywhere else, until the camp meeting; was being held.
    A jury was waived, and a trial had by the court, who found for the defendants, and rendered judgment against the appellant for the costs.
    Mr. William G. Randall, and Messrs. Hopkins & Hammond, for the appellant:
    It is conceded that the legislature may enact suitable police regulations for the good government of the State. Railroad Co. v. Jacksonville, 67 Ill. 37; Lake View v. Cemetery Co. 70 id. 191.
    The police power, like others, is subject to constitutional limitations. Railroad Co. v. Jacksonville, 67 Ill. 37.
    We contend that the act is one in restraint of trade, or one-vesting a business monopoly, or creating discriminations between citizens transacting the same lawful business. Updyke v. Wright, 81 Ill. 49; Zanone v. Mound City, 103 id. 558; Tugman v. Chicago, 78 id. 405; Chicago v. Rumpff, 45 id. 90.
    Power to license is power to impose conditions upon the-licensee at discretion, and of taxing the licensee for the privilege of exercising a lawful trade. Wiggins v. Chicago, 68 Ill. 372; Schwuchow v. Chicago, id. 444.
    It is settled law, that where the police power, inherent irt the State, is exercised by the legislature, its exercise must-he reasonable, and be such as is required for the good government of the State, and is not oppressive of the citizen.
      Railroad Co. v. Jacksonville, 67 Ill. 37; Lake View v. Cemetery Co. 70 id. 191; Bloomington v. Wall, 46 id. 489; Chicago v. Rumpff, 45 id. 90; Tugman v. Chicago, 78 id. 405.
    Mr. Martin L. Newell, for the appellees,
    contended that the act is only a proper and legitimate police regulation, and one within the constitutional power of the legislature to pass, citing 4 Blackstone’s Com. 162; Cooley’s Const. Lim. 572; Thorpe v. Railroad Co. 27 Vt. 149; Commonwealth v. Alger, 7 Cush. 84; 4 Kent’s Com. 340; Commomvealth v. Bearce, 132 Mass. 548.
   Mr. Justice Craig

delivered the opinion of the Court:

The decision of this case hinges upon the validity of the following section of our Criminal Code: “Whoever, during the time of holding any camp or field meeting for religious purposes, and within one mile of the place of holding such meeting, hawks or peddles goods, wares or merchandise, or, without the permission of the authorities having charge of such meeting, establishes any tent, booth or other place for vending provisions or refreshments, or sells or gives away, or offers to sell or give away, any spirituous liquor, wine, eider or beer, or practices or engages in gaming or horse racing, or exhibits or offers to exhibit any show or play, shall be fined not exceeding $100 for each offence: Provided, that whosoever has his regular place of business within such limits is not hereby required to suspend his business. ” Rev. Stat. chap. 38, see. 59.

Meyers, the appellant, and the Normal District Camp Meeting Association of the Methodist Episcopal Church, each own adjoining lands within the incorporated village of Eureka, in Woodford county. The appellant purchased his premises about two years before the camp meeting association purchased its premises, but appellant did not occupy his premises until after the association purchased its grounds and held meetings thereon. When the meeting commenced, appellant lived on his premises, hut he had never kept a booth thereon. After the camp meeting commenced, appellant established his booth, and commenced the sale of his goods, without the consent of the association. Whether he had the right to do so, depends upon the validity of the law.

In the argument of appellant it is said: “We apprehend that an act in restraint of trade, or one erecting and vesting a business monopoly, or one creating discriminations between citizens transapting the same lawful business, or one vesting taxing power in private individuals, .corporations or associations, for their own benefit, or one vesting in individuals or associations, or private corporations, power to license trades or business, for their own benefit, would also be beyond the competency of the legislature, * * * and all these we claim the statute in question attempts to do. ”

The argument that the act is in restraint of trade,—one creating a monopoly and making discriminations,—is based upon the proviso in the act, declaring, “that whosoever has his regular place of business within such limits is not hereby required to suspend his business.” We do not think that the proviso, upon a fair construction of its terms, is liable to the objection urged against it. If it was intended, by the proviso, to protect any person who might have a business within the designated limits at the time the act was passed, and not afford protection to any person who might engage in regular-business, within the designated limits, after the passage of the act, there might be much force in the position of appellant ;' but we do not understand that such is the meaning of the proviso. But, on the other hand, we think the manifest intention was to allow any person who might think proper, to establish a place for the vending of provisions or refreshments within the designated limits, at a time when the camp meeting was" not in progress, and aftdr such person became established in a regular business he would not be required to suspend his business during the time the camp meeting was held,—in other words, we think the word “has, ” in the proviso, should be read “may have.” The proviso would then read, “whosoever may have his regular place of business within such limits is not hereby required to suspend his business. ” Under this construction, no privilege or right is conferred on one which is not granted to all. Ho monopoly is created by the act, which protects the one and excludes the others, but all persons stand upon an equality under the law, as they should. All who desire may establish a regular place of business,—not temporary, but permanent. We do not hold that a person, on the eve of a meeting being held, would have the right to establish a booth or place for selling provisions or refreshments for a short period, or during a session of' the camp meeting, and claim protection under the statutó, as this would be a device to defeat the purpose of the law, which could not be sanctioned; but in order to be protected, whoever undertook to avail of the law would have to establish a regular, permanent business, and after such regular business was established, the person engaged in such regular business would not be required to suspend during the session of a camp meeting.

Tugman v. City of Chicago, 78 Ill. 405, has been cited as an authority sustaining appellant’s view. In that case it was held, that an ordinance which prevents one citizen engaging in a particular kind of business in a certain locality, under a penalty, whilst another is permitted to engage in the same business in the same locality, is not only unreasonable, and therefore void, but its direct tendency is to create a monopoly, which the law will not tolerate. Of course, the rule which would control an ordinance would also apply to an act of the legislature, and if the proviso of the act in question protected persons who might be in business when it was enacted, and excluded those who might afterwards engage in business, the case cited would be in point; but, as said before, that construction can not be placed on the law.

It is also said, that vendors of provisions and refreshments can not, under the constitution, be taxed, and that the act empowers the authorities in charge of the meeting to license, which, in effect, is a tax. As we understand the statute, it does not confer the power to license, on the authorities in charge of the meeting. The act merely declares, that whoever, during the time of holding any camp or field meeting, without the permission of the authorities having charge of such meeting, establishes any tent, booth or place for vending provisions or refreshments, within a certain distance of the meeting, shall be fined. The fact that the act confers on the authorities the right to consent, or refuse consent, can not be held to authorize such authorities to license. The right to consent, or refuse consent, is one thing, while the right or power to license a person to conduct a certain business at a certain place is quite a different thing. Had the legislature intended to authorize the authorities to license, language expressing that intention in plain words would no doubt have been used. But however this may be, we see nothing in the language of the act which can be construed as authorizing the authorities to license. The act is a mere police regulation. The purpose of the act is to preserve order, and prevent the disturbance of those engaged in public worship. For many years we have had similar acts in our statute. Section 147 of the Criminal Code of-1845 is an act of a similar character,—one enacted as a police regulation, to prevent a disturbance of a religious congregation. There is, in our judgment, no question in regard to the power and authority of the legislature to pass such laws. The tendency of such laws is to prevent disturbance and disorderly conduct, and preserve peace and quiet, where a large number of people are assembled for religious worship. The statute is a mere police regulation,—one which the legislature had the right to enact. We regard it valid, and free from the objections urged against it.

The judgment will be affirmed.

Judgment affirmed.


author: Mr. Justice Sheldon

text:
    John V. Farwell et al. v. Seth F. Hanchett et al.

      Filed at Ottawa May 12, 1887.

    1. Rescission of sale for fraud of the purchaser—demand for return of the property. Where goods are obtained by a vendee through fraud, the vendor may rescind the sale, and maintain trover or replevin for their recovery, against the fraudulent vendee, or any other person not holding them as an innocent purchaser, without any previous demand for their return.
    2. Same—placing vendee in statu quo. If the vendor of goods takes the vendee’s note for the purchase money, he must surrender or offer to return the same before he can rescind the sale for fraud, and maintain an action to recover the goods.
    3. Same—false pretences—whether essential to right of rescission. The purchase of goods by one who, at the time, intends not to pay for them, is such a fraud as will entitle the vendor to avoid the sale, although there were no fraudulent misrepresentations or false pretences.
    4. - In an action by the vendor of goods to avoid a sale thereof on the ground of fraud, it is error to instruct the jury that the burden of proof is on the plaintiff to prove, by a preponderance of the evidence, that the defendant bought the goods in controversy from the plaintiff, and that the defendant used means to deceive, and did deceive, the plaintiff, and that he did not intend to pay for the goods when he bought them. The purchase of the goods without intending to pay for them is sufficient to avoid the sale, without proof of anything else.
    5. Replevin—whether demand necessary. No demand is required before bringing replevin for the recovery of goods, the possession of which has been wrongfully obtained from the plaintiff by fraud. Such demand is not required to be made of a fraudulent vendee, nor of the sheriff having taken possession of the goods under an execution against such vendee.
    6. Same—when the right must have accrued—as respects the judgment—retorno hahendo, etc. Where the plaintiff was not entitled to the possession of the chattels at the time of bringing his suit, but before judgment becomes entitled to such possession, judgment should be given against him for the costs, and such damages as the defendant may have sustained, without any award for a return of the property.
    7. * Where the vendor of goods, before rescinding the sale for fraud, brought replevin for the same, but on the trial produced and offered to surrender to the vendee, who was also a defendant, the note given by him for the price of the goods, it was held, that if the purchase was fraudulent, the surrender of the note had the effect then to rescind the sale, and invest the plaintiff with the title and right of possession, and give him a right to a verdict in his favor on the question of property.
    Appeal from the Appellate Court for the First District;— heard in that court on appeal from the Superior Court of Cook county; the Hon. Elliott Anthony, Judge, presiding.
    Messrs. Flower, Remy & Gregory, for the appellants :
    The third instruction was erroneous, in holding that a demand was necessary before suit. Doane v. Lockwood, 115 Ill. 490.
    The failure to surrender the note for the goods before suit, could have no other effect than to cause the plaintiff to become non-suited, and judgment for costs to go against him, without return of the property.
    When the surrender was made, the title of the fraudulent purchaser was extinguished, and vested in the plaintiff, the same as if there had been no sale. If this contingency occurs on the trial, the court should certainly not award a return to a party who has lost whatever title he had to the goods.
    Section 22 of the Replevin act provides, that in certain cases judgment shall be given against the plaintiff for a return of the property, unless he shall “in the meantime have become entitled to the possession of the property, where judgment may be given against him for costs, ” etc. The words, “in the meantime, ” may be construed to include the time of the trial.
    The seventh instruction is erroneous, in requiring the plaintiff to prove more than the law requires, to recover.
    The law is well settled, that if a man buy goods on credit, not intending to pay for them, this is a fraud on the seller, such as entitles him to avoid the sale. This has been held in very many cases. Hennequin v. Naylor, 24 N. Y. 139; Devoe v. Brandt, 53 id. 462; Byrd v. Hall, 2 Keyes, 647; Johnson v.
      Monell, id. 655; Davis v. Stewart, 8 Fed. Rep. 803; Talcott v. Henderson, 31 Ohio St. 162; Powell v. Bradlee, 9 Gill & J. 220; Dow v. Sanborn, 3 Allen, 181; Donaldson v. Farwell, 93 U. S. 631; Burrill v. Stevens, 73 Maine, 395; Starch Factory v. Lendrum, 57 Iowa, 52; Stewart v. Emerson, 52 N. H. 301.
    Messrs. Brandt & Hoffman, for the appellees,
    contended that a demand was necessary before suit, especially as to the sheriff, who was lawfully in possession. Tuttle v. Robinson, 78 Ill. 334.
    Appellants could not replevy the goods, to recover the price of which they commenced an action of assumpsit. (Kellogg v. Turpie, 93 Ill. 267.) Nor could they rescind the contract without first offering to surrender the note. Kellogg v. Turpie, 93 Ill. 267; Bowen v. Schuler, 41 id. 192; Wolf v. Dietzsch, 75 id. 205.
    As the jury found all the issues for the defendants, the judgment of retorno habendo was proper.
   Mr. Justice Sheldon

delivered the opinion of the Court:

This was an action of replevin, brought by John V. Farwell & Co., against Seth F. Hanchett and Simon Heller. The defendants pleaded non cepit, non detinet, property in Simon Heller, property in Abraham Heller, and as to Hanchett, sheriff, justification under a certain execution against Simon Heller in favor of Abraham Heller.

Simon Heller carried on business in Chicago, as a dry goods merchant, from April 4, 1882, to December 9, 1884, on which latter date the execution aforesaid, on a judgment that day entered against him in favor of his father, Abraham Heller, for $8323.78, was levied upon his stock, and possession thereof was taken by the sheriff. During this period he was in the habit of buying goods from the plaintiffs, who were wholesale dry goods merchants. On April 4, 1882, he made and delivered to the plaintiffs a written statement, which contained the following language:

“I, Simon Heller, for the purpose of obtaining a credit with John Y. Farwell & Co., of Chicago, Illinois, for goods which I may now or hereafter purchase of them, do make the following statement and representations of my present true financial circumstances, wealth and mercantile respectability, which said representations shall be the basis of my credit with John Y. Farwell & Co., both for my present purchase and for all purchases for and during the period of five years from this date, agreeing to immediately notify them of any material change in or of my business matters during the period above mentioned. ”

The statement showed, at that time, assets, $9150, and liabilities, $4260. Among the liabilities was specified a debt of $2700 to Heller’s father, to be paid at his convenience, without interest. The property replevied consisted of various articles of dry goods alleged to have been bought of the plaintiffs during the period aforesaid. At the time he was closed up, (December 9, 1884,) Simon Heller owed the plaintiffs, as was claimed, $4151.06 for merchandise purchased during the year 1884, and owed $15,000 or $16,000 altogether. The jury found the issues for the defendants, and the title to the property to be in Simon Heller, subject to the execution in favor of Abraham Heller, in the hands of the defendant, Hanchett, as sheriff.

After the overruling of a motion for a new trial, plaintiffs’ counsel moved that judgment for costs, and nominal damages, only, should be entered in the case, without any order for the return of the property, which motion the court overruled, and entered a judgment of property in the defendants, and for damages, and ordered a return of the property replevied. On appeal to the Appellate Court for the First District, the judgment was affirmed, and the plaintiffs appealed to this court.

Error is claimed in giving two instructions for appellees— the third and seventh. The third instruction is as follows:

“The jury are instructed, that before the plaintiffs can recover in this case, they must prove that they demanded the goods in controversy of Simon Heller, or of some one who at the time had them in his possession; and unless such proof is made, the plaintiffs can not recover in this case.”

This instruction was erroneous. The plaintiffs claimed that the purchase of the goods was fraudulent, and whether it was or not, was for the jury to determine, from the evidence. It is quite well settled, that when goods have been obtained by fraud by a vendee, or otherwise unlawfully obtained, the vendor, or true owner, may, without previous demand, maintain trover or replevin for the goods, against any person not holding them as an innocent purchaser for value. (Butters v. Haughwout, 42 Ill. 18; Bruner v. Dyball, id. 34; Hardy v. Keeler, 56 id. 152.) The remark made in Moriarty v. Stofferan, 89 Ill. 528, as to the necessity of a demand in such case, was not intended to change the well established rule in this respect, as recognized in the previous decisions of the court, and is not to be taken as so doing. The fraudulent vendee is not considered as a purchaser of the goods, but as a person who has tortiously got possession of them. We do not think the sheriff stands differently from the fraudulent vendee, as respects the necessity of a demand. (Aiken v. Campbell, 23 Wend. 372; Bussing v. Rice, 2 Cush. 48; Bancroft v. Blizzard, 13 Ohio, 30.) There is nothing decided to the contrary in Tuttle v. Robinson, 78 Ill. 332.

On December 1, 1884, Simon Heller gave plaintiffs his note for $550, on “his past due account,” for the goods replevied in this suit. On the trial, plaintiffs’ attorney tendered this note to the defendant Heller, in open court, and filed it in court for Heller’s benefit. Because this note was not surrendered to Heller before the commencement of the suit, it is insisted by appellees’ counsel, that for that reason plaintiffs were not entitled to maintain their suit, and therefore the giving of the third instruction was a harmless error. Although the surrender or offer to Surrender the note was necessary in order to the rescinding of the sale, and commencing the suit before the sale was rescinded was without right, yet when the note was surrendered at the trial, the sale, if fraudulent, was thereupon rescinded, and plaintiffs were re-invested with the title to the goods, and had then the property in them, although they had it not at the time the suit was brought. And this fact, although it would not. affect the wrongful commencing of the suit, should have bearing upon the question of property, to cause the finding of that issue for the plaintiffs, if the purchase was fraudulent, and to prevent judgment for a return of the property,—producing the effect that plaintiffs should pay the costs of the. suit, and damage, but have and retain the property. Section 22, chapter 119, of the Bevised Statutes, provides, that “if the plaintiff in the action of replevin fails to prosecute his suit with effect, or suffers a non-suit or discontinuance, or if the right of property is adjudged against him, judgment shall be given for a return of the property, and damages for the use thereof from the time it was taken until a return thereof shall be made, unless the plaintiff shall, in the meantime, have become entitled to the possession of the property, when judgment may be given against him for costs, and such damage as the defendant shall have sustained. ”

It thus appears as the intention of the statute, that if, after the commencement of the suit, the plaintiff becomes entitled to the possession of the-property, he may have and retain it, and there shall not be judgment for a return, thereof.

In Doane v. Lockwood, 115 Ill. 490, we held that the plaintiff in a replevin suit might, after the commencement of his suit, surrender the note given upon a fraudulent purchase of goods, and rescind the sale, and thereby prevent judgment for a return of the property replevied, and allow to the plaintiff judgment only for costs, and his damage.

It is said that the error was a harmless one, too, because the jury found the property to be in Simon Heller. But the erroneous instruction may have induced this finding. The instruction was imperative, that before the plaintiffs could recover they must prove that they demanded the goods, etc., and that unless such proof was made they could not recover. There was no such demand, and the plaintiffs could not recover under the instruction, which necessitated a finding for the defendants,—that is, the issues for the defendants; and the issue as to property in Simon Heller being one of them, the instruction required the finding of that issue for the defendants. The jury being thus compelled, by the instruction, to find for the defendants, they had but to look to the form for their verdict, which the court, in an instruction it gave, had prescribed to them, which was: “If the jury find the issues for the defendants, and that the property in controversy is the property of Simon Heller, subject to the execution in favor of Abraham Heller, introduced in evidence in this case, then the form of your verdict will be: We, the jury, find the issues for the defendants, and find the title to the property in controversy to be in Simon Heller, subject to the execution in favor of Abraham Heller, in the hands of the defendant, Hanchett, as sheriff. ” And this was the form of verdict which the jury adopted and returned. The words, “and find the title to the property in controversy to be in Simon Heller, ” etc., made no material difference in this instruction prescribing the form of the verdict. Finding the property in Simon Heller was embraced in what preceded— finding the issues for the defendants; and those words, in reality, added nothing more to the instruction. At least, even taking both instructions together, the third instruction was well calculated to mislead the jury to think, that without a demand made, they must find all the issues, including that as to property, for the defendants, and we can not say, with any assurance, that the jury were not so misled. We can not, then, pass by the error of the instruction by saying it did the plaintiffs no harm.

The seventh instruction was:

“The jury are instructed, that the burden of proof is on the plaintiffs to prove, by a preponderance of the evidence, that Simon Heller bought the goods in controversy from them, that he used means to deceive, and did deceive, them, and that he did not intend to pay for the goods when he bought them.”

The principle which respects this instruction is thus stated in Benjamin on Sales, (3d Am. ed.) in note to sec. 439: “It is settled in the American courts by a vast weight óf authority, that a purchase of goods by one who, at the time, intends not to pay for them, is such a fraud as will entitle the vendor to avoid the sale, although there were no fraudulent misrepresentations or false pretences.” This is abundantly sustained by the very full citation of authorities there made. It was sufficient for the avoidance of the sale to prove that Heller bought the goods with the intention, at the time, not to pay for them, and it was erroneous to tell the jury, that in addition thereto the plaintiffs must prove that Heller used means to deceive, and did deceive, the plaintiffs.

For the error in giving these instructions, the judgments of the courts below will be reversed, and the cause remanded to the Superior Court.

Judgment reversed.


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

      Filed at Ottawa May 12, 1887.

    1. Jury—disregarding testimony. While the jury are the judges of the credibility of the witnesses, they have no right arbitrarily to disregard the testimony of a reliable witness.
    2. Criminal law—quantum of evidence to convict. If, from all the evidence in the case, the jury have a reasonable doubt of the guilt of the accused, the law requires them to acquit.
    3. Case stated, and the evidence given, in the trial of one for larceny, which the court finds wholly insufficient to sustain a conviction.
    Writ of Error to the Criminal Court of Cook county; the Hon. Elliott Anthony, Judge, presiding.
    Mr. W. D. Munhall, for the plaintiff in error:
    If the evidence is such as to suspend the judicial mind in serious doubt as to the guilt of the accused, a new trial will be granted. Marlatt v. People, 104 Ill. 364; Clark v. People, Ill id. 404; Mooney v. People, id. 388; Rafferty v. People, 72 id. 43; Falk v. People, 42 id. 333.
    Mr. George Hunt, Attorney General, and Mr. Julius S. Grinnell, State’s Attorney, for the People.
   Mr. Justice Craig

delivered the opinion of the Court:

This was an indictment against Michael McMahon, for larceny, and on a trial in the Criminal Court of Cook county the defendant was found guilty, and his term of imprisonment in the State prison fixed at eighteen months.

Several errors have been assigned on the record, but the main ground relied upon to reverse the judgment is, that the evidence is not sufficient to sustain the judgment.

The charge against the defendant is, that on a certain day-in the month of August, 1886, he stole a suit of clothes from the house of Adam Jaeger, who resided at 701 South Halsted street, Chicago. At the time of the alleged larceny, the defendant was in the employment of Wheeler & Thomas, a firm engaged in the roofing business, being foreman of a gang of five men who. were sent to the residence of Adam Jaeger to do a job of work on the house. It is claimed that on leaving the house, after the work was finished, the defendant took and carried away the suit of clothes, wrapped up in an old coat.

The evidence relied upon to sustain the conviction is that of John Hartig, a carpenter, who was at work on the house at the same time. He testified that the men came there to work on the house about two o’clock in the afternoon, and worked about one hour; that he met the defendant and another man coming down stairs at Jaeger’s house about three o’clock that day; the other men had gone; the defendant had a big bundle under his arm in an old coat. He further testified that he saw the defendant place the bundle on the seat of a wagon which they had with them, and he and the other man got on the seat of the wagon and drove off. A few minutes after the men had gone, Mrs. Jaeger notified the witness that a suit of clothes -belonging to her husband was missing. The witness then went to Mr. Wheeler, the employer of the men, and notified him of what had occurred. Wheeler and the witness went to Chicago avenue, where the men were engaged on another job, and found a bundle containing the suit of clothes on the wagon seat.

To rebut this evidence, the defendant introduced Judson Jones, who, in substance, testified: “I .am a roofer, and work for Wheeler & Thomas, and worked for them last August. I was at work with the defendant on the day he did the work at Jaeger’s house, on South Halsted street. Besides the defendant and myself, there were three other men working with us,—Charles Linstrum, pred Frutel and Frank Limberg. It took us about an hour to do the work. I was with the defendant part of the time. Linstrum and Frutel went down from the roof some time before the defendant and myself. The defendant told me to get his tape-line, which was in his coat pocket. I called to Frank Limberg below to send me Mike’s coat. He placed the coat on the bucket by which we hauled up material for roofing. I hauled it up, and took from the pocket on the inside of the coat, the tajie-line, and he and I measured the work we had done. After he had taken the measurement, he put the tape-line in the pocket of his coat, and put his coat and vest on his arm, and he and I started down. We went in through the window and attic-room, and down the stairs from the inside of the house. This was the only way down. I was right behind him all the way,—not more than two feet from him all the way. The defendant had nothing, at any time, but his coat and vest. He did not stop from the time he left the" roof until we got to the wagon, and he took nothing in his hands, or otherwise, from the time he left the roof, that I know of. I did not see him take anything. He had no bundle except his own coat and vest, when I was wdth him. When we got to the wagon he placeid his coat and vest on the seat, and we got on the wagon and drove away. ”

The defendant was sworn on his own behalf, and testified that he did not take the suit of clothes, and he gave substantially the same account of what occurred at the house as the witness Jones. It also appeared, from the evidence, that the defendant’s coat was found on the wagon seat, but the suit of clothes, when found, was wrapped up in an old coat which did not belong to the defendant, and, so far as is shown, was never in his possession. In addition to the evidence alluded to, the defendant called eight witnesses, who seem to be reliable people, and they all testified that they knew the defendant’s reputation for honesty in the neighborhood where he resided, and that it was good.

If the evidence of the witness Jones is reliable, (and we see nothing in the record to cast suspicion on his testimony,) then Hartig, who testified that the defendant took away the clothes, must be mistaken. -Jones was in company with the defendant all the time he was at Jaeger’s house, and left the house with him. He was in a position to know what the defendant took from the house, and he is positive that the defendant took nothing away with him but his coat and vest. The jury are judges of the credibility of the witnesses, but they have no right arbitrarily to disregard the evidence of a reliable witness, and we can see no theory upon which the jury convicted the defendant, unless they entirely disregarded the evidence of Judson Jones.

If this was a civil case, and we were called upon to pass upon the evidence, we would not hesitate to hold that the evidence preponderated in favor of the defendant. The defendant, who, under the statute, is a competent witness, testified that he did not take the goods. He proved by a reliable witness, who was with him at the time the larceny was alleged to have been committed, that he did not take the goods. He fortified this by showing a good character for honesty. The goods, when found, were not wrapped up in defendant’s coat, as claimed by the prosecution, but in the coat of some one else. This is the ease made by the defendant, while the people meet it by the evidence of one witness that he saw the defendant take the goods. Surely, the weight of the evidence is with the defendant. But this was not the test before the jury. This is a criminal case—one in which the defendant is charged with crime; and the law required the jury, if, from all the evidence in the ease, they had a reasonable doubt in regard to the guilt of the accused, to bring in a verdict of not guilty. Applying this rule to the case, we do not perceive any ground upon which the judgment can he sustained.

We are of opinion the verdict was not sustained by the evidence. The judgment will therefore be reversed, and the cause remanded.

Judgment reversed.


text:
    Wilson M. Darlington et al. v. Thomas W. Chamberlin.

      Filed at Ottawa May 12, 1887.

      1. Appeal—affirmance in the Appellate Court, as a finding of facts— conclusiveness. A judgment of affirmance by the Appellate Court must be taken as a finding of all such facts as are necessary to sustain the judgment of the trial court, and such finding must be accepted as true.
    2. Commission merchant—diverting funds to account of an agent. A bought live stock with money furnished by B, under an agreement they were to belong to B. A shipped the same in his own name, for the reason he could get better shipping rates, to C, a commission merchant in Chicago, for sale, and directed C to place the proceeds in a certain bank for B, as had been often done before. But C applied the proceeds upon notes held by him on A, claiming a factor’s lien: Held, that, under the facts, C became liable in an action to B for the amount of the proceeds of the stock.
    Appeal from the Appellate Court for the First District;— heard in that court on appeal from the Superior Court of Cook county; the Hon. Elliott Anthony, Judge, presiding.
    Mr. Mason B. Loomis, for the appellants.
    Messrs. C. H. & C. B. Woon, for the appellee.
   Mr. Justice Mulkey

delivered the opinion of the Court:

This ease is brought here by appeal from the Appellate Court for the First District.

The facts which the evidence tends to establish, are briefly these: On the 1st day of July, 1885, Holderman Bros., dealers in live stock, shipped from Bantoul, Illinois, to the appellants, commission merchants and live stock brokers at Chicago, three car-loads of cattle and one of hogs, one of the shippers going along with the stock. The stock had been purchased with money belonging to appellee, Thomas W. Chamberlin, a banker at Bantoul. On its arrival at Chicago, John Holderman, who accompanied the stock, informed appellants that it had been purchased with Chamberlin’s money, and directed them to place the proceeds of the stock to his credit, in the Commercial Bank of Chicago. Such had been the usual course in other similar transactions. The appellants, instead of placing the proceeds in bank, to the credit of appellee, as directed, applied them to an old claim they had against Holderman Bros, for advances made to them, and evidenced by their notes to appellants. The stock, as between the Holder-mans and appellee, really belonged to the latter, though it had been shipped in their name without consulting appellee, because, as testified to by them, they could get better railroad rates by shipping in tlieir own name. In previous transactions of the same kind, of which many had occurred, appellants had uniformly placed the proceeds of shipments, when directed, to appellee’s credit. In addition to this, the evidence tends to show there was an express understanding between all the parties that the proceeds of all stock purchased with moneys advanced by appellee, should be deposited in bank, to his credit, or be otherwise disposed of, as he might direct. This, however, is denied by appellants, and there is also a sharp conflict in the testimony upon other material matters above mentioned, and which the evidence on the part of appellee tends to establish.

The proceeds of the stock, less commissions, amounted to $3330.11, for which appellee obtained a judgment in the Superior Court of Cook 'county. The contention of appellants is, that under the circumstances disclosed by the testimony they had a factor’s lien on the proceeds of the stock for the balance due them from the Holderman Bros., and that they were, therefore, under no obligations to pay them over to appellee. The conclusive answer to this contention, however, is, that it is necessarily based upon appellants’ theory of the facts, whereas, by reason of the judgment of affirmance by the Appellate Court, this court must -accept as absolutely true the very opposite theory of the facts, for that sustains the judgment of affirmance, and the other does not.

Conceding, then, as we must, the facts to be as testified to by appellee’s witnesses, the claim that appellants had a factor’s lien upon the proceeds of the stock is wholly inadmissible, and it would therefore be a useless consumption of time and labor to enter upon a discussion of the general principles of law relating to such a lien.

Under the facts, as we view them, we perceive no error in the rulings of the trial court, which, in our opinion, requires a reversal of the judgment of the Appellate Court. It will therefore be affirmed.

Judgment affirmed,.


author: Mr. Justice Shope

text:
    The Chicago, St. Louis and Pittsburg Railroad Company v. Michael Hutchinson.

      Filed at Ottawa May 12, 1887.

    1. Negligence-—general basis of recovery—of the care required to avoid danger. It is the settled doctrine of this court, that a plaintiff may recover for injuries resulting from the negligence of the defendant, if he has observed ordinary care for his personal safety, and to avoid the injury.
    2. The law requires a person, when approaching a known place of danger, or when placed in a dangerous position, to exercise such care and circumspection for his safety as an ordinarily prudent and cautious man would observe under the circumstances surrounding him. But the degree of care required can not be formulated into a particular rule of conduct, for the reason that the conduct of ordinarily cautious and prudent men will vary as the circumstances presented may be varied.
    3. While it is the duty of a person approaching a place of danger, to do so cautiously, and with due and proper care for his safety, it can not be said, as a matter of law, that he must take a particular precaution or measure, or just what a prudent man would do under all circumstances.
    4. This court is not prepared to say, ás a matter of law, that a person approaching a railroad crossing, when there is nothing apparent to warn him of danger, and at which he knows a flagman is stationed, whose duty it is to warn all persons of danger from moving trains, is required to look elsewhere than to the flagman.
    g_ js fljg ¿ráy 0f a flagman at a public street crossing in a populous city, which is much used by the public, to know of the approach of trains, and to give timely warning to all persons attempting to cross the railroad track, and the public have a right to rely upon a reasonable performance of that duty. The absence of such flagman from his post may excuse one cognizant of his duty, from gross negligence in failing to stop before attempting to cross, and look both ways to see if a train is approaching.
    6. If it be true that in a particular case a reasonably prudent and careful man, on approaching a railroad track over a public street, would do more than observe the absence of the ordinary signal of the flagman, the facts and circumstances should be submitted to the jury, to be considered in determining whether, under them, he had exercised ordinary care and caution to avoid the injury.
    7. Same—comparative negligence—when not an element in the case. Where the evidence on the part of the plaintiff, in an action against a railway company to recover on the ground of negligence, shows that he was without fault or negligence, and the defendant guilty of gross negligence, while the evidence on the other side shows the defendant to be without fault, and the plaintiff grossly negligent, a clause in an instruction, that the sole question for determination is as to how the collision and injury occurred, and who is to blame for it, (the injury being conceded,) is not erroneous, in taking from the jury the question of the plaintiff’s contributory negligence. In such case there is no middle ground, either one or the other party being wholly at fault.
    8. In an action against a railroad company to recover for a personal injury by a collision at a street crossing, the court, on its own motion, instructed the jury, in substance, that the gist of the action was negligence, which the plaintiff must prove by a preponderance of the evidence, substantially as alleged in the declaration, and that it could not be presumed from the'fact of the plaintiff’s injury; that the question of negligence was one of fact, for the jury, but that the court instructed that it is the duty of all persons approaching a highway crossing where there is a railroad, to exercise care and caution to learn if any trains are approaching, and to take such measures as any prudent and cautious man would under like circumstances, and that if they believed, from the evidence, he failed to exercise such care, and was injured in consequence thereof, he could not recover: Held, that while the instruction contained some inaccurate expressions, yet that it could not have misled the jury to the prejudice of the defendant.
    9. Same—negligence and, ordinary care, as questions of law and fad. Whether a person injured from the negligence of another has exercised proper care and caution, is a question of fact, and not one of law. It is for the jury to determine whether he has been guilty of negligence, by a consideration of his conduct under the circumstances shown to have surrounded him at the time of the alleged negligent act or conduct.
    10. Where it is conceded that a party charged with negligence has failed to perform a legal duty, or, in cases of this character, if it be conceded that the plaintiff did not exercise that degree of care and caution which ordinarily cautious and prudent men would observe under like circumstances, the court will be required to state, as a matter of law, that the party failing-to perform his legal duty, or failing to observe such degree of care, has been guilty of negligence.
    11. But so long as the question remains whether the party has performed the legal duty, or has observed that degree of care and caution imposed upon him by law, and the determination of the question involves the weighing and consideration of evidence, the question must be submitted as one of fact.
    12. Instructions—assuming existence of controverted facts. In an action against a railway company to recover for personal injuries at a public street crossing, the court was asked to instruct the jury that it was the duty of the plaintiff to observe any warning given of the approach of any train, and if he had any notice that a train was near, and about to pass in front of him, it w'as his duty to stop, etc.; and, also, that if they believed, from the evidence, that by reason of negligence or inattention on his part he did not observe any signals of the approach of the train, etc., he could not recover. The court refused to give the instructions: Held, that they were properly refused, as they assumed that “warning” or “signals” of the approach of the train were given, which was one of the controverted facts in the case.
    Appeal from the Appellate Court for the First District;—• heard in that court on appeal from the Superior Court of Cook county; the Hon. Elliott Anthony, Judge, presiding.
    Messrs. Willard & Driggs, for the appellant:
    It is the duty of a person when going upon or across a railroad track, to look in each direction, to see if a train is approaching; and a failure to do so is gross negligence. Railroad Co. v. Goddard, 72 Ill. 567; Railroad Co. v. Godfrey, 71 id. 500; Railway Co. v. Hatch, 79 id. 137; Railway Co. v. Riley, 47 id. 514; Railroad Co. v. Jacobs, 63 id. 178; Railroad Co. v. Van Patten, 74 id. 91; Railroad Co. v. Damerell, 81 id. 450; Railroad Co. v. Johnson, 103 id. 512; Railroad Co. v. Hetherington, 83 id. 510; Railroad Co. v. Hart, 87 id. 429; Austin v. Railway Co. 91 id. 35; Railway Co. v. Dimick,
      96 id. 42; Pennsylvania Co. v. Rudel, 100 id. 603; Pennsylvania Co. v. Frana, 112 id. 398; Railroad, Co. v. Robinson, 106 id. 142.
    As to the care required of persons in crossing railroads, in other courts, see Hense v. Railroad Co. 71 Mo. 636; State v. Railroad Co. 76 Me. 357; Railroad Co. v. Stead, 95 U. S. 161; Schofield v. Railway Co. 114 id. 615; Railway Co. v. Snyder, 14 Ohio St. 670; Warner v. Railroad Co. 44 N. Y. 465; Railroad Co. v. Miller, 25 Mich. 274.
    The court erred in refusing the two instructions asked, which state this rule.
    Messrs. Burke & Hollett, for the appellee.
   Mr. Justice Shope

delivered the opinion of the Court:

Appellee brought suit in the Superior Court of Cook county, to recover of appellant damages for personal injuries, sustained by him in consequence of having the vehicle in which he was riding, run into by a backing passenger train on appellant’s railroad, at its intersection with Jefferson street, in the city of Chicago. A trial in that court resulted in a verdict and judgment thereon for $5000. On appeal to the Appellate Court for the First District this judgment was affirmed, and appellant prosecutes this further appeal.

The plaintiff, in his declaration, alleges due care and caution on his part in crossing the railroad track; negligence on the part of the servants of appellant in the management of the train; in the failure to give signals, as provided by law; in running the train at a greater rate, of speed than permitted by law and the ordinances of the city of Chicago; in the failure of appellant to employ a flagman at the crossing, as required by the ordinances of said city, and in negligently permitting the flagman to be absent from his post, etc.

It is conceded that it was the duty of appellant to keep a flagman' at the crossing in question, to warn all persons attempting to cross, of the approach of trains on its railroad, and that the speed of passenger trains was, by ordinance of the city, limited to ten miles an hour.

The jury having found the facts favorable to appellee, and the Appellate Court having affirmed the judgment of the Superior Court upon such finding, we are precluded from a consideration of the facts, except in so far as it may be necessary to determine the correctness of the ruling of the court in giving or refusing instructions. In that respect it will be material to say, that the evidence relating to the occurrence resulting in plaintiff’s injury, is conflicting and wholly irreconcilable. That introduced by appellee, shows that he approached the crossing, driving a single horse, hitched to a light wagon; that he stopped when within thirty feet of the crossing, and looked for the flagman, who he knew was required to be stationed there, but no flagman was in sight, nor was any signal of danger given or displayed; that he then looked in each direction for a train, and could neither see nor hear one approaching. He then drove upon the crossing, when a train, backing at a rate of speed of from twenty to twenty-five miles per hour, struck the hind wheel of his wagon, throwing him a considerable distance, whereby he was seriously and permanently injured; that no notice or signal, by ringing the bell’or otherwise, was given of- the approaching train; that he did not discover the train until about on the crossing, and that he could have passed safely then but for the great speed at which it was driven. It is further shown, that the view was obstructed in the direction from whence the train approached, and that the flagman was, at the time, a considerable distance away attending to a switch. On the other side it was shown, that the train was backing down to the depot, on time, and being driven, at a speed not exceeding six miles per hour; that the bell was ringing, and a man was stationed on the rear platform, as lookout, who, as soon as he saw appellee, signaled the engineer, and everything was done that could be, to stop the train; that the flagman was on the crossing, doing his duty, and signaled the approach of this train, and endeavored, by shouting, waving his flag, and' by running toward appellee, to apprise him of the danger, but that appellee, disregarding the approach of the train, without stopping at all, upon approaching the track put whip to his horse and drove immediately in the way of the slowly backing train; that he was so close to it that he had to drive off the plank forming the crossing proper, and over the exposed rails of the railroad track.

Two instructions were asked by appellant, and refused by the court, as follows:

“1. The jury are instructed, that it was the duty of the plaintiff, before crossing the track on which the collision in question occurred, to look in both directions for the approach of any train. It was also his duty to observe any warning given of the approach of any train, and if he had any notice that a train was near, and about to pass along in front of him, it was his duty to stop, and wait until the same had passed.
“2. If the jury believe, from the evidence, that the plaintiff was negligent, and thereby failed to observe the near approach of a train along one of the tracks in front of him, or if the jury believe, from the evidence, that by reason of negligence or inattention on his part he did not observe any signals of the approach of the train in question, and that such negligence caused, or materially-contributed to, the injury in question, then he can not recover. ”

The refusal of these instructions was not erroneous. A vice common to each of them is, that they assume that “warning” or “signals” of the approach of the train was given. We have seen that this was one of the controverted facts of the case. The instructions, if given, would have a tendency to mislead the jury, and exclude from consideration the case made by appellee. We are aware of expressions by this court, when passing upon the law and fact, and of like expressions by other courts of the highest respectability, that the failure ■of one approaching a railroad crossing to pause and look for the approach of trains, was such negligence as would, in the ■case then under consideration, preclude a recovery. But we are not prepared to say, as a matter of law, that a person approaching a railroad crossing, where there is nothing apparent to warn him of danger, and at which he knows a flagman is stationed, whose known duty it is to warn all persons of danger from running trains, is required to look elsewhere than to the flagman. The flagman’s duty is to know of the approach of trains, and to give timely warning to all persons attempting to cross the railroad track, and the public have a right to rely upon a reasonable performance of that duty.

It is the settled doctrine of this court, that to authorize a recovery for injuries resulting from the negligence of a defendant, it is only necessary that the plaintiff should have observed ordinary care for his personal safety, and to prevent the injury. (Illinois Central Railroad Co. v. Shultz, 64 Ill. 177; Illinois Central Railroad Co. v. Godfrey, 71 id. 507; Calumet Iron and Steel Co. v. Martin, 115 id. 359; Chicago and Eastern Illinois Railroad Co. v. O’Conner, 119 id. 586.) It may be, that in the particular case a reasonably prudent and careful man would do more than observe the absence of the ordinary signal by the flagman; but if so, the facts and circumstances should be submitted to the jury, to be considered by them in determining whether the party had, under •all the circumstances, exercised ordinary care and caution to prevent injury.

Tested by these principles, it is clearly apparent that the instructions were properly refused. Every principle, moreover, contained in these instructions, proper to be given, was included, and given to the jury, in the instruction given by the court on its own motion.

But one instruction was given to the jury, and that was prepared by the court in lieu of instructions refused. It is complained that this instruction was erroneous, in that it told the jury that “the sole question for your (their) determination is, as to how the collision and injury occurred, and who is to. blame for it.” The injury of the plaintiff was conceded, and hence no objection is made to the instruction because it assumes that fact.

But it is said, that by the clause quoted the jury were not permitted to consider the negligence of plaintiff contributing to the injury. A complete answer to this is, the evidence shows that either one party or the other was wholly at fault. There is no middle ground. The position and conduct of the parties are sharply defined, and if the case made by appellee is the true one, he, as a matter of fact, was wholly without fault and appellant guilty of great negligence. If the other-contention is established, the plaintiff must be defeated, because appellant was wholly blameless and appellee grossly negligent. It was, therefore, in view of the evidence, simply a question of whether the conduct of the one party or the other had produced the injury,—hence the use of the language complained of could not have prejudiced appellant.

But, aside from this view, the jury were fully and fairly instructed as to the duty of 'appellee in approaching this, crossing. The part of the instruction pertaining to the duty of the plaintiff, and the degree of care to be exercised by him, to authorize a recovery for injuries resulting from negligence of the defendant, is as follows :

“The right of a railroad company to run its track over, across and along the street where it is claimed that the collision occurred and the plaintiff was injured, is not disputed, and does not enter into this case, as that is neither controverted nor denied, but is conceded. The sole question for your determination is, as to how the collision and injury complained of occurred, and who is to blame for it. The gist of the action is negligence, and that must be proved, on the part of the plaintiff, by a preponderance of the testimony, substantially as alleged and set forth by him in his declaration, and can not be presumed by the bare fact that the plaintiff was injured by the cars of the defendant. The court has no authority to determine the fact of negligence, or what is or what is not negligence, under any given state of facts, for that is strictly for the jury; but the court instructs you that it is the duty of all persons who approach a highway crossing where there is a railroad, to exercise due care and caution to ascertain whether there are trains approaching, and to take such measures as any prudent and cautious man would, under like circumstances, take in order to avoid a collision; and the criterion furnished by the law, in every instance, for ascertaining the measure of such care, is that which would be exercised by a reasonably prudent and cautious person under like circumstances. And if you believe, from the evidence, that the plaintiff should have looked for the approach of any train, or to look for any warning which might be given of the approach of a train, and to wait until said train had passed before attempting to cross the tracks of the railroad company, and that he did not do so, and that he did not exercise such care and caution as a reasonable, prudent, careful man would have done under like circumstances, but-drove on to the tracks of the railroad without exercising' such care and caution as above mentioned, and that he was injured in consequence thereof, then the plaintiff can not recover in this action.”

While it must be conceded that some of the expressions employed are not strictly accurate, the jury could not have been misled to the prejudice of appellant. They must have understood the instruction as laying down the rule that the plaintiff must show, by a preponderance of the evidence, that he was injured, and that such injury resulted to him in consequence of the negligence of the servants of appellant, and that he, in approaching and driving upon the railroad crossing, was in the exercise of ordinary care for his own safety. The instruction gave correctly to the jury the true test and criterion from or by which to determine what is ordinary care, as applicable to all cases where negligence is to be determined as a question of fact, and properly left it to the jury to determine, from all the evidence, whether the plaintiff had exercised such care as a “prudent and cautious man would exercise under like circumstances, ” and told them, if he did not exercise such “care and caution as a reasonable, prudent, careful man would have done under like circumstances, ” he could not recover. If, however, the jury found, from the evidence, he had observed such ordinary care, and had otherwise established his case by a preponderance of the evidence, he might recover.

It is, however, insisted, that it should be held, as a matter of law, “that it is the duty of a person about to cross a railroad track, to approach cautiously, and endeavor to ascertain if there is present danger in crossing, ” and we are referred to Pennsylvania Co. v. Frana, 112 Ill. 405, as sustaining the proposition; and it is said, that instead of being so instructed, the jury were told they might determine, from the evidence, whether plaintiff should have looked for the approach of a train or for warnings of the approach, etc. It is undoubtedly the duty of a person approaching a place of danger, to do so cautiously, and with due and proper care for his safety; and the law requires that he should exercise sueli care as ordinarily prudent and cautious men would observe under the circumstances surrounding him. But the degree of care he is required to exercise can not be formulated as a rule of conduct, for it is manifest that the conduct of ordinarily cautious and prudent men would vary as the circumstances presented might be varied. It was said by this court, in the case of Pennsylvania Co. v. Frana, supra, referred to by counsel: “It is always a question of fact for the jury to determine, from the evidence, whether the person injured has exercised proper care and caution in crossing a railroad track, and not a question of law. It was the province of thé jury to determine whether the plaintiff was guilty of negligence. ”

The rule there announced, as applicable to the facts of that case, may be accepted as correct, but it is more accurate to say, that, whether negligence exists, is usually a question of fact, arising from, and to be determined by, a consideration of the conduct of the party, under the circumstances shown to have surrounded him at the time of the alleged negligent act or conduct. Where it is conceded that a party charged with negligence has failed to perform a legal duty, or, in cases of this character, if it be conceded that the plaintiff did not exercise that degree of care and caution which ordinarily prudent and cautious men would observe under like circumstances, the court would be required to state, as a matter of law, that the party so failing to perform his legal duty, or failing to observe such degree of care, has been guilty of negligence. But so long as the question remains, whether the party has performed the legal duty, or has observed that degree of care and caution imposed upon him by law, and the determination of the question involves the weighing and consideration of evidence, the question must be submitted as one of fact.

Finding no error in this record authorizing a reversal, the judgment of the Appellate Court is affirmed.

Judgment affirmed.


text:
    Susan E. Bice v. Owen H. Hall.

      Filed at Springfield May 12, 1887.

    1. "Weeds—testamentary capacity. It is not required that a person, to make a valid will, shall possess a higher capacity than for the transaction of the ordinary affairs of life. If the testator, at the time of making a will, is capable of attending to his ordinary business, and of acting rationally in the ordinary affairs of life, he will possess testamentary capacity. Such capacity may exist even jvhen neither the mind nor the memory is as good as at a former period.
    2. Same—probate of will—upon what evidence. On an appeal from an order of the county court allowing probate of a will, only the testimony of the subscribing witnesses is admissible on the question of the testator’s sanity. The statute contemplates that the proceeding to admit a will to probate shall be summary.
    3. The subscribing witnesses to a will must declare, on oath or affirmation, among other things, that they believe the testator was of “sound mind and memory” at the time of signing or acknowledging the same, to admit it to probate. It is not necessary that they shall use the usual formula, “sound mind and memory, ” but it is sufficient if they state their belief in equivalent words.
    Writ of Error to the Circuit Court of Sangamon county; the Hon. James A. Creighton, Judge, presiding.
    Messrs. Palmers & Shutt, for the plaintiff in error:
    The point is, does the witness Dawson, in substance and legal effect, swear that he believes the testator was of sound mind and memory when he signed the will. Dickie v. Carter, 42 Ill. 376; Crowley v. Crowley, 80 id. 469.
    It is not necessary that the witness shall state on oath, in so many- words, that he believed the testator to be of sound mind and memory. It is sufficient if he does so in legal effect. Yoe v. McCord, 74 Ill. 33.
    The test of testamentary capacity is the ability to know and understand the business in which he is engaged. Yoe v. McCord, 74 Ill. 33; 1 Redfield on Wills, 123, 124; Irish v. Newell, 62 Ill. 196; Brown v. Riggin, 94 id. 560; Carpenter v. Calvert, 83 id. 62; Rutherford v. Morris, 77 id. 397; Libby v. Waggoner, 27 id. 395; Meeker v. Meeker, 75 id. 260.
    Messrs. Patton & Hamilton, for the defendant in error:
    On appeal from an order of the county court allowing probate of a will, only the testimony of the subscribing witnesses is admissible. Andrews v. Black, 43 Ill. 256; Crowley v. Crowley, 80 id. 469; Weld v. Sweeney, 85 id. 50.

      To admit a will to probate, the two attesting witnesses must swear that they believe the testator was of sound mind and memory at the time of signing or acknowledging it. Dickie v. Carter, 42 Ill. 376; Crowley v. Crowley, 80 id. 469; Allison v. Allison, 46 id. 61; Weld v. Sweeney, 85 id. 50.
   Mr. Chief Justice Scott

delivered the opinion of the Court:

The executor named therein presented in the county court of Sangamon county what purported to be the last will and testament of Benjamin L. Hall, Sr., deceased, and moved the ■court that the same be admitted to probate. It appears to have been executed by the testator, with all the formalities .required by the statute in" regard to wills or codicils. It was attested by two subscribing witnesses, viz., J. H. Dawson and J. H. Pickrell, both of whom appeared in the county court, .■and declared, on oath, “they were acquainted with Benjamin L. Hall, Sr., now deceased; that they were present and saw the testator sign said will in their presence, and that he acknowledged the same to be his last will and testament, and that they believed the said testator to be of sound mind and memory at the time of signing said.will, and that they attested said will'in his presence and at his request.” The testimony ■of these witnesses was reduced to writing, and was signed by them, respectively, and thereupon the court ordered that the paper purporting to be the last will and testament of Benjamin D. Hall, Sr., be admitted to probate, and that it be made a matter of record. From the order of the county court, one of the heirs at law of the testator asked for, and was allowed, an appeal to the circuit court, which he afterwards perfected by giving the usual bond. The case was tried de novo in the ■circuit court, and the decision of the county court was reversed, and an order entered to the effect the paper presented was not the last will and testament of Benjamin L. Hall, Sr., deceased. Susan E. Bice, one of the devisees named in the will, and who would take real estate under its provisions if the will should be held valid, brings the case to this court on error.

On an appeal from an order of the county court allowing probate of a will, only the testimony, of the subscribing witnesses is admissible on the question of the testator’s sanity. The decisions on this subject are based on the language of the statute. (Andrews v. Black, 43 Ill. 256, and other cases in this court.) Accordingly, on the trial of this appeal in the circuit court, no testimony, other than that of the two subscribing witnesses,'was heard. One of them (Piekrell) stated every fact the statute requires to establish the will. The other (J. H. Dawson) stated everything the statute requires, save he could not say, in the language of the statute, he believed the testator was of “sound mind and memory” when he signed his will. It seems it was for this reason the circuit court refused to hold as a matter of law, as it was asked to-do, that the will was sufficiently proved to be admitted to probate. The error assigned in this court calls in question the-correctness of that ruling of the circuit court.'

Undoubtedly the law is, the subscribing witnesses must-declare on oath or affirmation, among other things required by the statute, that they believe the testator was of “sound mind and memory” at the time of signing or acknowledging his will, before it can be admitted to probate. But the witnesses are not required to use the usual formula, “sound mind and memory, ” in stating their belief as to the testamentary capacity of the testator. It is sufficient if they state their belief in equivalent words, and so this court has distinctly held in Yoe v. McCord, 74 Ill. 33. It was ruled in that case, it was not essential that a subscribing witness to a will should state on oath, in so many words, that he believed the testator to be of sound mind and memory at the time of signing or acknowledging the will. In that case, the witness could not declare, in the language of the statute, that he believed the testator to be of sound mind and memory, and yet he did declare so in legal effect, and that was held to be sufficient. The rule established by that case is a reasonable oáe, and ought to be allowed to control, otherwise great injustice might be done. A person might be of unsound mind, in a measure, or his memory might be impaired, and yet he might possess sufficient testamentary capacity to make a will. In such cases, a conscientious witness might well hesitate to declare, on oath, in the language of the statute, he believed he was of “sound mind and memory.” That would not be true in his understanding of the terms of the statute, but he might be able to state his belief in his testamentary capacity, in other language; which would have the same legal effect. It is not required that a person, to make a valid will, shall possess a higher capacity than for the transactions of the ordinary affairs of life. If the testator, at the time of making a will, is capable of attending to his ordinary business, and of acting rationally in the ordinary affairs of life, he is said to possess testamentary capacity, and his will will be permitted to stand. Testamentary capacity may exist even where neither the mind nor the memory is as good as at a former period. (Freeman v. Easly, 117 Ill. 317.) The facts of the case in hand bring it precisely within these well recognized principles. Here the witness was unwilling to declare on oath he believed the testator was of “sound mind. ” The testator had been afflicted with what the witness called “spells, ” and had had so many of them his mind was injured. When asked whether the testator understood what he was doing, the witness replied: “I suppose he understood it,—that was my supposition. ” When under the influence of “spells,” the witness says he was not fit for business, but at other times, he says he “couldn’t do a great deal of business,—of course he done some little.” The witness says the testator was not under a “spell” on the day he signed his will. On being inquired of if he saw anything on that day that led him to doubt the soundness of the testator’s mind, the witness answered: “I didn’t see anything, at that time, that was anything more than was just his ordinary way of living. ” The testator came out of his house and called the witness, as he was passing on the street, to come in to witness his will. On coming into the house, the testator introduced him to the other subscribing witness, and both witnesses then attested the will in the presence of the testator, and at his request, and in the presence of each other. The answer made to a question propounded to him by the court, gives the idea the witness had as to the condition of the testator’s mind, as clearly as anything in the record. This is the question and answer:

Q. “Is it your belief, that at the time he signed this will he was of sound mind and memory ?
A. “To give my honest belief about it, it is just this way,— I want the court to understand what I say,—I don’t think Uncle Logan, in his last years, had been perfectly sound. That’s what I believe, if you want my belief about it. But that day he was as natural and rational as common to see him. Anybody not knowing anything about him at all, would suppose he was all right. That’s my honest belief about it. That’s just what I want the court to understand,—not that I know anything that day more than that.”

It is quite evident the condition of the testator’s mind, as the witness states he believes it was at the time of signing the will, shows testamentary capacity. Undoubtedly the witness believed the testator fully understood what he was doing, and the facts stated leave not the slightest doubt on the mind such was the case. This court is the more ready to adopt this view, for the reason the probate of a will in this way by the county court is not conclusive. Under the statute, any person interested may, at any time within three years', file a bill in chancery to contest the validity of the will, when an issue at law shall be made up, and tried by a jury, whether the writing produced be the will of the testator or not. The statute contemplates the proceeding for the admission of the will to probate, shall be summary. It requires the party propounding a will to prove nothing but its formal execution, and that the testator was of sound mind and memory at the time. That has been sufficiently proved in this case by the requisite number of subscribing witnesses, and the will of the testator should be admitted to probate.

The judgment or order of the circuit court will be reversed, and the cause remanded, with direction to that court to affirm the order of the county court admitting the will to probate.

Judgment reversed.

Mr. Justice Mulkey : I do not think the proofs in this case meet the requirements of the statute, and can not, therefore, concur in the opinion of the majority of the court.