THE LIBRARY OF THE UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW ok is the Property of the COUNTY LAW LIBRARY If found elsewhere than in Law Library, please return, or notify Librarian. r^^?^yHi is Books belo^^ Library ^J^^e\|ir sold, exchangSor J^en away LIBRARY OF ^ ^^ V V 'p , THE LAW OF EVIDENCE IN CIVIL AND CRIMINAL CASES ILLINOIS By JOHN A. MAC NEIL OF THE RICHLAND COUNTY BAR CHICAGO CALLAGHAN AND COMPANY 1914 T 19 14 COPYRIGHT, 1914 BY Callaghan and Company 4 5to PREFACE In presenting this work to tlie profession, it may not be amiss to state that the original design was to prepare a small volume for trial use solely, and arranged that Admissibility, only, should and would be the extent of the text or statement. The exceptions and provisos naturally were forced to be con- sidered or possible usefulness of the volume decreased, with the result that it has reached its present proportions. The author well understands that under some titles it may appear to the practitioner the treatment is limited, but believes criticism as to that feature will be withheld when he considers that there are here some four hundred titles, while in philosophical works and text books the number of divisions or chapters aver- age less than twenty-five, and naturally, subjects here treated under separate heads, in such works group themselves in some of those few divisions. It must also be remembered that this is an Illinois work, and no attempt has been made to theorize or suggest what might or should be the rule in certain cases or subjects. When our courts have not passed on the proposition, no conclusions by analogy have been ventured. Neither have I stated any more than absolutely neces- sary, for the reason that to make this more than one volume would wholly destroy original plan and design. The major portion of the book has been a growth. To avoid repetition, an Index has been prepared which it is believed is complete, and it is suggested that by reference to it, authority may be found for a principle for which the reader may wish precedent, though it may be under a different subject than the one he has under consideration. In other words, the proposition may have been placed in the book in a certain place because of the particular matter considered in the authority cited, and by reference to the Index under such line as the practitioner may naturally use, he may find illustra- tion and apply it to the subject in hand. Any other method under the plan adopted w^ould have made many repetitions and a three or four volume work. Emphasis is placed on the fact that substantive law has been studiously avoided, and in the use of this volume, this must be iii 7352:85 iv PREFACE considered. Effort has been made to exclude all that for which the practitioner would more naturally turn to books on other sub- jects. I wish it to be only what it purports to be, a convenient summary for the practitioner in this state as to the matters prop- erly Avithin the domain of the title, a ready reference in time of i^eed, — when there is no opportunity for leisurely investigation, for we all know courts will not adjourn while a search is made through the numerous digests, statutes and text books for author- ities on the admissibility of evidence or competency of witnesses. Illustrations have been multiplied more than abstract state- ments of principle, as, generally, more desired results obtain where rule is applied than its mere abstract statement. Investigation will cause much surprise in the number of cases that are reversed solely because of error in the admission of evi- dence. Some proof of this is in this volume, as it contains over tAvelve thousand propositions. I know of no book on similar plan, and several years of hard work were required to obtain the classification that now seems to have been natural and as matter of course. With the growth of our reports, I believe other subjects will be treated by digesting each in separate volumes. The plan of this volume is based upon utility and facility of reference, with conciseness of statement. It is not presented as a treatise, and though standard divisions of the subject of Evi- dence have been maintained, they were not of primary consider- ation. It has been considered more advisable to give the subjects, instruments and objects of evidence distinct classification under their respective substantive titles. Concrete illustrations and application have often been deemed of no less importance than the abstract principle. Cumulation of cases has not been para- mount ; latest decisions and those grouping authorities being cited. A careful study of, and a familiarity with the Table of Titles will greatly enhance the usefulness of the book. The index con- tains complete analysis of titles. Where at all possible, alphabetical analysis of subject has been followed as in arrangement of principal titles. The writer trusts that the book may be of use and service, and fulfill its primary object of furnishing a convenient reference book for busy lawyers, stating tersely the rule in adjudged cases in Illinois. John A. MacNeil. Olney, Illinois, June 1st, 1914. TABLE OF TITLES Page ABANDONMENT 1 ABATEMENT 3 ABBREVIATIONS 5 ABDUCTION 6 ABORTION 7 ABSENT WITNESS 8 ABSTRACTS OF TITLE 10 ACCESSORIES 17 ACCIDENT 18 ACCOMPLICE 19 ACCORD AND SATISFACTION 20 ACCOUNT STATED 23 ACKNOWLEDGMENTS 26 ADJOURNMENT 33 ADMISSIBILITY 33 ADMISSIONS AND DECLARATIONS 33 ADOPTION 69 ADULTERY ; 69 ADVANCEMENTS 72 ADVERSE PARTY 76 ADVERSE POSSESSION 77 AFFIDAVITS 80 AFFIDAVITS FOR CONTINUANCE 83 AFFIRMATIVE 84 AGE 85 AGENCY 86 ALIBI 90 ALIENATING AFFECTIONS 91 ALLEGATIONS AND PROOFS 92 ALTERATIONS AND ERASURES 93 AMBIGUITY 97 ANCIENT DOCUMENTS 103 ANIMALS 105 ANSWERS 110 ANTE NUPTIAL CONTRACT 113 ANTI SALOON TERRITORY 114 APPEAL BONDS 117 APPRENTICES 120 ARBITRATION AND AWARD 120 ARSON 122 ASSAULT AND BATTERY 123 V vi TABLE OF TITLES Page ASSENT 128 ASSIGNMENT 130 ASSUMPSIT 131 ATTACHMENT 140 ATTORNEYS 142 ATTORNEYS OPENING STATEMENT ^ 148 BAILMENT 149 BASTARDY 150 BEST AND SECONDARY 155 BIAS AND HOSTILITY 173 BIGAMY 175 BILL OF EXCEPTIONS 179 BILL OF LADING 179 BILLS OF PARTICULARS 180 BONDS 184 BOOKS 187 BOOKS OF ACCOUNT 188 BOOKKEEPER 201 BOUNDARIES 201 BREACH OF PROMISE 204 BRIBERY 209 BROKERS 210 BUCKET SHOPS 213 BUILDINGS 214 BUILDING CONTRACTS 214 BURDEN OF PROOF 215 BURGLARY 252 CANADA THISTLES 254 CANCELLATION OF INSTRUMENTS 255 CERTIFICATES 256 CERTIFICATES OF EVIDENCE 260 CERTIORARI 260 CHANCERY 261 CHARACTER 263 CHASTITY 266 CIRCUMSTANTIAL EVIDENCE 269 CITIZENSHIP 272 CITY DIRECTORY 273 CLOUD ON TITLE 273 CO. D 279 COLOR OF TITLE 279 COMPETENCY OF EVIDENCE 280 COMPROMISE AND SETTLEMENT 281 CONCLUSIONS OF WITNESS 285 CONFESSIONS 292 CONFIDENCE GAME 299 CONFUSION OF GOODS 302 CONSIDERATION 302 CONSPIRACY 306 CONTEMPTS 312 CONTESTED ELECTIONS .''.4. a.VTf. 316 TABLE OF TITLES vii Page CONTRADICTION AND SUSTAINING WITNESSES 324 COPIES 328 CORONER'S INQUEST 334 CORPORATIONS 338 CORPUS DELICTI 350 CORROBORATION 352 CREDIBILITY 354 CRIMINAL CONVERSATION 362 CROSS-EXAMINATION 365 CUMULATIVE EVIDENCE 379 CUSTOM AND USAGE 382 DATE 393 DEADLY WEAPON 396 DEAF WITNESS 396 DEATH 396 DEBT 400 DEDICATION 402 DEEDS 409 DEED AS MORTGAGE 411 DEFAULT 412 DELIVERY 413 DEMONSTRATIVE EVIDENCE 416 DEMURRER TO EVIDENCE 418 DENIAL OF EXECUTION 419 DEPOSITIONS 422 DESCRIPTION 436 DESTRUCTION, SUPPRESSION AND FABRICATION OF EVIDENCE.. 437 DETECTIVES 440 DIAGRAMS 441 DIRECTING VERDICT 442 DISCOVERY 444 DISORDERLY HOUSE 445 DIVORCE 446 DOMICILE 451 DOWER 454 DRAM SHOPS 456 DURESS 461 DYING DECLARATIONS 463 EJECTMENT 471 EMBEZZLEMENT 480 EMINENT DOMAIN 483 ESCAPE 500 ESCROW 500 EVIDENCE DEFINED 501 EXCLUSION AND SEPARATION OF WITNESSES 504 EXHIBITION OF INJURY 505 EXPERIMENTS 506 EXPERT AND OPINION 509 EXPLOSIVES 534 EXTORTION 535 EXTRADITION 535 viii TABLE OF TITLES Page FALSE IMPRISONMENT 536 FALSE PRETENSES 540 FIDUCIARY RELATIONS 542 FIREARMS 544 FIRES 544 FIXTURES 549 FLIGHT 550 FORCIBLE ENTRY AND DETAINER 550 FOREIGN JUDGMENTS 554 FOREIGN LAW 558 FORGERY 560 FORMER ADJUDICATION 563 FORMER CONVICTION 566 FORMER JEOPARDY 568 FORMER PLEADINGS 568 FORMER TESTIMONY 570 FOOTPRINTS 574 FRAUD 574 FRAUD AND DECEIT • ■ • • 579 FRAUDULENT CONVEYANCES 580 FREIGHT RATES 585 GAMBLING CONTRACTS 585 GAMING 590 GAMING HOUSE 591 GARNISHMENT 592 GIFTS 592 GOOD FAITH 595 GRAND JURORS 598 GRAND JURY 598 GUARDIAN AND WARD 598 HABITS 599 HANDV/RITING Q02 HEARSAY 607 HEIRSHIP S16 HISTORY 317 HOMESTEAD <517 HOMICIDE 620 HOSPITAL RECORDS <353 HOTEL REGISTER Q54 HUSBAND AND WIFE S54 HYPOTHETICAL QUESTIONS 669 IDENTITY 673 ILLEGALLY OBTAINED EVIDENCE 682 IMMUNITY 682 IMPEACHMENT ,-r, ^j-^ • 685 INCEST • "• '• 699 INFANTS "^00 INNKEEPERS "^06 INSOLVENCY 709 INSTRUCTIONS 710 INSURANCE 711 TABLE OF TITLES ix Page INTENT 725 INTEREST 730 INTERPRETER 732 INTESTACY 734 INTOXICATION 734 JUDGE'S DOCKET AND MINUTES 738 JUDGMENTS 738 JUDGMENTS BY CONFESSION 740 JUDICIAL NOTICE 741 JUSTICE OF PEACE 762 KIDNAPPING 763 KNOWLEDGE 764 LARCENY 766 LEADING QUESTIONS 771 LEGAL CONCLUSIONS 775 LEGISLATIVE ACTS AND JOURNALS 776 LEGITIMACY 777 LETTERS 779 LETTER PRESS COPIES 786 LIBEL AND SLANDER 787 LIFE TABLES 796 LIMITATIONS 797 LOST INSTRUMENTS 801 LOTTERY 811 MAGNIFYING GLASS 812 MALICIOUS MISCHIEF 812 MALICIOUS PROSECUTION 814 MARKET PRICE 823 MARRIAGE 827 MAYHEM 836 MEDICAL AND SURGICAL SERVICES 836 MEMORANDUM 838 MENTAL AND PHYSICAL STATES 844 MESSENGER 856 MONEY COUNTS 857 MOTIVES 859 NEGATIVE IN ISSUE 861 NEWSPAPER 863 NEW TRIAL 863 NON JOINDER 866 NOVATION 867 NUISANCE 869 OBJECTIONS ^"^^ OBSTRUCTING HIGHWAYS 881 OBSTRUCTING JUSTICE 883 OFFER OF EVIDENCE 884 OFFICERS ^^® ORDER OF PROOF 889 ORDINANCES ^^^ OUSTER ■ ®°^ OWNERSHIP -IT • lO" T' ^°^ X TABLE OF TITLES Page PARDON 906 PARENT AND CHILD 907 PAROL 913 PARTIES AND PERSONS INTERESTED AS WITNESSES 951 PARTITION 953 PARTNERSHIP 955 PATENTS 961 PAYMENT 963 PECUNIARY CIRCUMSTANCES 969 PEDIGREE 972 PENALTIES ; 974 PERJURY 976 PHOTOGRAPHS 981 PHYSICAL EXAMINATION 985 PHYSICIANS AND SURGEONS 987 PLATS 990 PLEDGE 992 POLICE RECORDS 994 POSITIVE AND NEGATIVE 994 POSSESSION 997 PRESUMPTIONS 1000 PRINCIPAL AND SURETY 1045 PRIVILEDGED COMMUNICATIONS rv. 1047 PRODUCTION OF DOCUMENTS 1051 PROMISE TO REPAIR 1053 QUO WARRANTO 1054 RAPE 1056 RATIFICATION 1064 REASONABLE DOUBT 1065 REBUTTAL 1067 RECALLING WITNESS 1070 RECEIVERS 1070 RECEIPTS 1071 RECEIVING STOLEN PROPERTY 1072 RECOGNIZANCE 1077 RECORDS 1080 REFORMATION OF INSTRUMENTS 1110 REFUSAL OR FAILURE TO PRODUCE EVIDENCE 1112 REGISTERS OF BIRTHS, DEATHS AND MARRIAGES 1116 REGISTRATION OF TITLES 1116 RELEASE 1118 RELEVANCY 1122 REPAIRS AFTER ACCIDENT 1125 REPLEVIN 1126 REPRESENTATIVE CAPACITY 1132 RESCISSION OF CONTRACTS 1076 RES GESTAE 1132 RESIDENCE 1141 RESISTANCE TO OFFICERS 1146 RESISTING ARREST 1147 RESTRAINT OF TRADE 1147 TABLE OF TITLES xi Page REWARDS 1148 ROBBERY 1150 RULES OF COURT 1153 RULES IN ACTIONS FOR NEGLIGENCE 1154 SAFER METHOD 1156 SANITY AND INSANITY 1156 SEALS 1162 SEDUCTION 1165 SEPARATE AND SIMILAR OFFENSES .. , 1168 SERVICE 1173 SET OFF AND COUNTER CLAIM 1176 SIDEWALKS 1179 SIGNATURES 1181 SIMILAR FACTS AND TRANSACTIONS 1182 SODOMY 1188 SPECIFIC PERFORMANCE 1189 SPEED 1191 STAMP ACT 1195 STATUTES 1195 STATUTE OF FRAUDS 1198 STENOGRAPHER'S NOTES 1201 STEREOSCOPIC VIEW 1204 STIPULATION 1204 STRIKING OUT EVIDENCE 1207 SUBSCRIBING WITNESS 1211 SUBSCRIPTION 1211 SUICIDE 1212 SURVEYS, FIELD NOTES AND MONUMENTS 1214 SURVIVORSHIP 1216 TAX DEEDS 1216 TAXES 1218 TAX RECEIPTS 1223 TELEGRAMS 1224 TELEPHONE CONVERSATIONS 1226 TENDER 1227 THREATS 1230 TIMBER 1233 TITLE 1235 TRADE MARKS 1242 TRAIN BULLETINS 1243 TRESPASS 1243 TROVER AND CONVERSION 1248 TRUSTS 1252 USURY 1260 VALUE 1262 VENUE 1265 VIEW BY JURY 1268 VOIR DIRE 1272 WAGES, EARNING CAPACITY AND DOMESTIC RELATIONS 1273 WAIVER 1279 WARRANTY 1280 xii TABLE OF TITLES Page WASTE 1286 WATERS AND WATERCOURSES 1288 WEATHER 1289 WEIGHT AND SUFFICIENCY 1290 WHOLE OF UTTERANCE 1293 WILLS 1297 WITNESSES 1336 WORDS AND PHRASES 1367 WORK AND SERVICES 1369 EVIDENCE ABANDONMENT See Adverse Possession, Possession, Ownership, Brokers, Assumpsit. Streets : — Proof Required: To show abandonment by a city of a portion of a public street, there must not only be an apparent abandonment by the public, but an intention to abandon must also be proved by clear and satisfactory evidence. Shirk vs. City of Chicago, 195 111, 298 ; To^\ti of Lewiston vs. Proctor, 27 111. 414; XII 111. Notes 88, §84. Hig-hways : — Bur el en: Burden is on party alleging abandonment to prove same by clear and satisfactory evidence, and actual non-user under circumstances clearly indicating an intention to surrender and abandon tlie public right. Highway Coiiirs. vs. Kinahan, 240 111. 593; Cox vs. Comrs. of High- ways, 194 111. 355. — When Presumeel: If the public has ceased to travel a road and has acquired another which accommodates public travel, an abandonment of the first road may be fairlv presumed. Highway Comrs. vs. Kinahan, 240 111. "593; XIV 111. Notes 410, §§151, 152. — Proof Required: Proof of the fact must be accompanied by the further proof that another road has been adopted in its stead, or the necessity of another having ceased to exist. Taylor vs. Pearce, 179 111. 145; Champlain vs. Morgan, 20 111. 181. Easement : — Burelen: The Imrden of showing abandonment of an easement rests upon party asserting same. Hunt vs. Sain, 181 111. 372. — Direct as to Intention: Parties may testify as to their inten- tion, but may be contradicted by acts and declarations. Expression of intention is not conclusive, but may be considered in connection with other facts and circumstances. Stannard vs. A. E. & C. E'y Co., 220 111. 469; C. & E. I. E. E. Co. vs. Clapp, 201 111. 418. Homestead : — Presumption: Abandonment of homestead cannot be pre- sumed from the fact that the head of the family had gone in search of another home, and being disappointed, returned to his old home. Lynn vs. Sentil, 183 111. 382; Titman vs. Moore, 43 111. 169; Kitchell vs. Burgwin, 21 111. 40. 1 Ev.— 1 2 abandon:\ient "Where there is removal from the premises, it will be taken as an abandonment unless it clearly appears there was an intention to return and occupy it. Kloss vs. Wylezalek, 207 111. 328; Jackson vs. Sackett, 146 111. G46.; XII 111. Notes 904, §§ 100, 101. Re-marriage of a widow and removal to the home of her second husband raises a presumption of abandonment of her homestead, but such presumption is not conclusive and will yield to explanatory proof showing the removal was meant to be temporary. Loveless vs. Thomas, 152 111. 479; Buck vs. Conlogue, 49 111. 391. And this may be true wlien second husband had no homestead. Home Ins. Co. vs. Field, 42 App. 392. — Weight and Sufficiency: Testimony of claimant as to inten- tion to abandon is entitled to but little weight where acts and dec- larations are to the contrary. Buck vs. Conlogue, 49 111. 391, Absence of twenty years held conclusive. Hart vs. Eandol'ph, 142 111. 521; Cahill vs. Wilson, 62 111. 137; Carr vs. Eisiug, 62 111. 14. (See Hoimestead.) Contracts : — Parol: A contract may be shown by parol to have been aban- doned or rescinded. Lasher vs. Colton, 190 111. 150; Cuppy vs. Allen, 176 111. 162; Hale vs. Bryant, 109 111. 34. Evidence of defendant's opportunity to make better sale to others admissible on issue of abandonment of contract by him. Kendall vs. Young, 141 111. 188. Abandonment of Wife or Children: — In General: Husband is only bound to provide for his wife such a reasonably comfortable home as is consistent with his means and their station in life. Jones vs. People, 119 App. 49. Fact that husband did not provide for his wife at her brother's home, nor discharge his obligations to the latter, will not, alone, be an abandonment of the wife, where it was the understanding be- tween the two tliat the hu[sband, who was poor and without means, was not to remain a charge upon the wife 's brother. Foster vf.. People, 101 Ai)p. 84. — Achnissihilily of Evidence: That prior to alleged abandon- ment defendant made a trip, taking a woman other than his wife, is incompetent in action for wife abandonment. Jones vs. People, 119 App. 49. Question as to whether husband was then willing to take his wife back and live with her is improper. Virtue vs. People, 122 App. 223. A divorce bill brought by wife is competent evidence, when of- fered by defendant, as showing the admissions of complaining wit- ness, but is not competent when offered l)y State, nor may defend- ant offer in evidence his answer to the bill. Such answer is a mere self-serving declaration. People vs. Oldfield, 173 App. 655. Proof of visits of defendant to house of woman whose reputation was of ((uestionable character is admissible upon question of neglect and abandonment. People vs. Colwell, 155 App. 174. ABATEMENT 3 Evidence that wife liad been assisted in her support by public officers is not permissible for purpose of showing abandonment, yet such evidence is proper for the purpose of showing where and in what manner wife had received her support and whether or not from husband. People vs. Colwell, 155 App. 174. The fact that a wife was a prostitute before marriage is no de- fense. Peoi^le vs. McDonald, 178 App. 159. — Weight and Sufficiency: Marriage must be proven beyond a reasonable doubt. Stanley vs. People, 104 App. 294. Prosecution must prove beyond a reasonable doubt that defend- ant did abandon his wife without good cause. Every material al- legation must be proven beyond a reasonable doubt. Peterson vs. People, 172 App. 287. Statute does not change rule as to quantum of evidence neces- sary for conviction in criminal causes; it applies only to quality of proof in such cases. Stanley vs. People, 104 App. 294. Proof must be made that the wife or minor child or children would be in destitute or necessitous circumstances. People vs. Bos, 162 App. 454. Statute of limitations runs against offense, and to constitute a second abandonmejit, it is necessary to prove that husband has returned to the wife and resumed marital relations. People vs. Heise, 257 111. 443. ABATEMENT See NoN Joinder. Matters of Record: — Ln General: Facts which affirmatively appear of record need not be pleaded. Huinphrey vs. Phillips, 57 111. 132; Sinsheinier vs. Skinner Mfg. Co., 165 111. IIG. — Motion to Dismiss: Maj be substituted for plea in abatement only wh(n'e objection appears on face of papers. McNab vs. Bennett, 66 111. 157; Holton vs. Daly, 106 111. 131. And plea is waived by insufficient motion upon same matter. Brollierhood of Firemen vs. Cramer, 164 111. 9; Bacon vs. Schepflin, 185 111. 122; Martin vs. C. & M. E. E. Co., 220 111. 97. Other Action Pending: — What Should be Shown: That the latter suit was in fact vex- atious and unnecessary. Phillips vs. QiiicJi, 68 111. 324. That action pleaded in abatement was, in fact, commenced prior to commencement of action in which plea was made. Blumenthal vs. Taylor, 44 App. 139. And it must be shown prior action pending at date of filing of plea. Garrick vs. Chamberlain, 97 111. 620 ; Foreman Shoe Co. vs. Lewis & Co., 191 111. 155; Tedrick vs. Wells, 152 111. 214; Ilobson vs. McCam- bridge, 130 111. 367; Mundt vs. Cambridge, 118 App. 124. 4 ABATEMENT Also that both actions were commenced by the same parties, but the rule does not extend where parties to the two actions are re- versed. Thompkins vs. Garry, 43 App. 255. Substantial identity of the parties is all that is necessary. Huss vs. Eigheimer, 220 111. 193. And it must appear that former suit is pending, is effectual and that plaintiff can obtain his remedy therein as completely as by second suit. Wright & Keifer, 131 App. 298; Garrick vs. Chamberlain, 97 111. 620. — When Pica not Sustained: Plea is not sustained by proof of non-suit, in previous action on same claim, in which defendant yet liable for costs. Mailers vs. Whittier Mach. Co., 170 111. 434. Nor by evidence of former suit prosecuted for use of different usee than that in which plea filed. Foreman Shoe Co. vs. Lewis & Co., 191 111. 155. Nor by proof that j^laintiff held note in suit for benefit of payee and that before suit brought by him, attachment suit which was still pending was brought against payee and defendant (maker). Hippach vs. Makever, 166 111. 136. Pendency of suit in another state not matter in abatement or bar of action in this state. Greer vs. Young, 120 111. 184; Allen vs. Watt, 69 111. 655; Lanca- shire vs. Corlietts, 165 111. 592; Dunham vs. Dunham, 162 111. 589; XI 111. Notes 8, § 42. Order of Proof and Participation: If defendant is defeated upon trial of an issue of fact in plea in abatement, he cannot plead over to the merits, and evidence of plaintiff's damages should be submitted with evidence as to issue of fact under plea in abatement. Italian-Swiss Colony vs. Pease, 194 111. 98; Foreman Shoe Co. vs. Lewis & Co., 191 111. 155 ; Greer vs. Young, 120 111. 184 ; Brown vs. I. C. Mut. Ins. Co., 42 111. 366; Boggs vs. Bindskoff, 23 111. 65; Moeller vs. Quarrier, 14 111. 280. If defendant is in default as to all issues except one made by his plea in abatement, upon which he is defeated, he is entitled to par- ticipate in investigation only for purpose of reducing amount of plaintiff's recovery. Foreman Shoe Co. vs. Lewis & Co., 191 111. 155 ; First Natl. Bank vs. Miller, 235 111. 135; C. & St. L. E'y Co. vs. Holbrook, 72 111. 419; Baccash vs. U. S. Tent Co., 135 App. 121, (See Default.) A defendant only has the right to plead over when the statute gives him such privilege. AVhen not given such right, and he takes the initiative, and produces all his evidence on the issue of abatement, and is defeated thereon, nothing remains but to ascer- tain the amount which the plaintiff is entitled to recover. Where facts averred in plea are substantially proven, yet not a defense because tendering immaterial issue, defendant may with- draw his plea in abatement and re-plead where motion is made be- fore default taken and judgment rendered on the plea. Pollock vs. Kinman, 176 App. 361. ABBREVIATIONS 5 ABBREVIATIONS Judicial Notice: — Names: The use of the initial letter of the Christian name is so common among all classes that it is not regarded as another name, or the name of another person, but simply is an abbrevia- tion of the full name, and the court may presume it to be such Slick vs. Brooks, 253 111. 58; Lee vs. Mendall, 40 III. 359. Courts may take notice of the ordinary abbreviations of Chris- tian names, as, Jos. as a common abbreviation for Joseph Feld vs. Loftus, 240 111. 105. Courts will not take judicial notice that Bart, is a contraction for Bartholomew. Eives vs. Mars, 25 111. 315, Courts cannot judicially notice the equivalents of names of per- sons in another language, as, for instance, that Wilhelm is the Ger- man equivalent for William. Becker vs. German Fire Ins. Co., 68 111. 412. There is no presumption of sex from use of initials. People vs. Martin, 180 App, 578. Middle name or initial is not a part of the legal name and may be changed, dropped and resumed at pleasure. People vs. Dunn, 247 111. 410; Thompson vs. Lee, 21 111. 241; Tucker vs. People, 122 111. 583; Humphrey vs. Phillips, 57 111. 132'; Bleteh vs. Johnson, 40 111. 116; Miller vs. People, 39 111. 458; Erskine vs. Davis, 25 111. 251; XIII 111. Notes 925, § 3. — Official Character: The court will take notice that the char- acters '^N. P." are the abbreviations for the term Notary Public, and that the characters ''J. P." that of Justice of the Peace. Eowley vs. Berrian, 12 111. 200 ; Shattuck vs. People, 5 111. 478 ; Liv- ingston vs. Kettelle, 6 111. 116. — Land Descriptions: Court will take judicial notice of abbre- viations used in land descriptions. MeChesney vs. City of Chicago, 173 111. 75; Hull vs. Croft, 132 App. 509. And of the meaning of initials used in the descriptions of land in this state in conveyances, levies of execution, judical sales, sur- veys, assessments for taxes, etc., without further proof. Kyle vs. Yellowhead, 80 111. 208. And of the meaning of initials usually used in the description of land in tax receipts. Paris vs. Lewis, 85 111. 597. Parol Evidence: Admissible to explain meaning of abbreviations in written in- struments, and to show words for which they stand. Converse vs. Wead, 142 111. 132. To render parol evidence admissible to explain sense in which letters and characters not having a legal significance were used, it is necessary to allege that they were so used. Amer. Express Co. vs. Lesem, 39 111. 313. 7 Abbreviations in land descriptions may be shown to have a well defined meaning among surveyors. MeCiesney vs. City of Chicago, 173 111. 75. 6 ABDUCTION "C. 0. D." used in express company receipt may be explained by parol. 111. T. Co. vs. Adams Expr. Co., 158 App. 374; Amer. Express Co. vs. Lesem, 39 111. 313. Admissible to show for whom ballots, using abbreviated names, were cast. Kreitz vs. Behrensmeyer, 125 111. 141; Clark vs. Eobinson, 88 111. 498; Tarkington vs. Turner, 71 ill. 234. ABDUCTION See Corpus Delicti, Circumstantial Evidence. Intent : The gist of the offense of abduction is the unlawful intent and purpose with which the abduction was accomplished. People vs. See, 258 111. 152. (See Intent.) Presumptions and Burden of Proof: It is presumed that female's previous life and conversation were chaste, and burden is upon defendant to show otherwise. Bradshaw vs. People, 153 111. 156; Slocum vs. People, 90 111. 274. And this presumption is of probative force. Bradshaw vs. People, 153 111. 156. (See Chastity.) Admissibility of Evidence: — Declarations of Abducted Female: As to why she left home are hearsay and incompetent. Bradshaw vs. People, 153 111. 156. — Previoiis Associations: Admissible to show chastity. Bradshaw vs. People, 153 111. 156. — Inducements: The enticing or taking away may be accom- plished not only by force but by any scheme or device by which the person interposes his will and personality between the girl and her home, so as to induce her to leave her home and stay at some other place, and the kind and extent of seductive arts which will satisfv the law do not depend upon any absolute rule. People vs. See, 258 111. 152. The kind and extent of seductive arts do not depend upon any absolute rule. If the inducements held out do, in fact, entice a young woman from her parent's house, then both the letter and spirit of the statutes are met, so far as the taking or enticing away is involved. Slocum vs. People, 90 111. 274. — Consent of Parents: Consent of parents is immaterial and the crime is committed when the female is enticed from home for purpose of concubinage. People vs. See, 258 111. 152. — Consent of Female: Consent of the abducted female to the abduction, or co-operation on her part in carrying it out, or whether she was or was not aware of the abductor's intention or purpose is immaterial. People vs. See, 258 111. 152. Weig-ht and Sufficiency: The enticing of a young woman to leave her home and go to that of defendant, where he finally succeeded in overcoming her virtue, after which he had intercourse with her for several months, ABORTION 7 with proof of solicitation by defendant that she live with him, promising her money and clothes and to treat her as well as his wife, is sufficient to convict defendant under a count for entic- ing the young woman away from her home for the purpose of con- cubinage. The actual living and co-habiting together in a state of concubinage is not reciuired. Sloeum vs. People, 90 111. 274. If a person entice a girl from her home for purpose of concu- binage, he is guilty of offense of abduction, even though the act was only in contemplation and the girl was not then aware of his intent. People vs. See, 2.'i8 111. 152. It is not essential to the crime of abduction of a female that illicit relations be proven. People vs. See, 258 111. 152. ABODE See Domicile, Residence, ABORTION See Intent, Accomplices, Dying Declarations, Expert and Opinion, Homicide. Admissibility of Evidence: — Relation of Accused and Woman: Evidence tending to show that defendant, a doctor, had improper intercourse with prose- cutiiig witness, and that he was father of child is admissible. Scott vs. People, 141 111. 195. That shortly before deceased left home she gave witness a let- ter, addressed to defendant, to mail, is admissible as tending to show an arrangement between accused and deceased. Clark vs. People, 224 111. 554. — Other Offenses or Attempts: Evidence of abortions performed on women other than one named in indictment is admissible to show guilty knowledge or intent. People vs. Hagenow, 236 111. 514. Under indictment for attempt to produce an abortion, evidence of other attempts is admissible when parts of a continuing at- tempt. Scott vs. People, 141 111. 195. (See Separate and Similar Of- fenses.) — Soliciting Practice: People may prove that defendant adver- tised in daily papers as an expert of long experience in treating pregnant women. People vs. Hagenow, 236 111. 514. It is competent, upon question of intent, to permit witness to testify that at different times during several years defendant had solicited their patronage and held herself out as willing and able to produce abortions bv means of instruments and medicines. Clark vs. People, 224 111. 554. § ABSENCE — Expert and Opinion: Physician who has examined alleged victim may give opinion as to whether oltense has been committed. Howard vs. People, 185 111. 552. And as to manner in which it was produced. Clark vs. People, 224 111. 554 j Cook vs. People, 177 111. 146; Cochran vs. People, 175 HI. 28. Physician cannot base conclusion that deceased had been preg- nant prior to his examination of her upon the history of the case detailed by her, and not upon the result of his examination. Such statements amount to no more tlian hearsay evidence. Stevens vs. People, 215 111. 593. — Declarations: Of deceased, made about a year previous to her death, relative to acts of self abortion, are inadmissible. Clark vs. People, 224 111. 554. Statements by deceased to attending physician, relative to man- ner in which her illness was brought about by herself, inadmissible. Clark vs. People, 224 111. 554. Declarations of woman, being neither dying declarations nor part of res gestae, relative to when and by whom she was injured, are inadmissible to prove innocence of defendant. Howard vs. People, 185 111. 552. Incriminating statements of woman, not made in presence of ac- cused, are, in general, not admissible. Scott vs. People, 141 111. 195. But when prosecuting witness, on cross examination, testifies as to what she told an attending physician, the balance of her statements may be brought out by prosecution in rebuttal. Scott vs. People, 141 111. 195. — Ilotel Register: Admission of entry on hotel register, made under an assumed name, is not erroneous when such fact was pre- viously proven without objection. Cook vs. People, 177 111. 146. Presumptions and Burden of Proof: Criminal intent is implied when act is unlawful in itself, and there is no proof of justification. Scott vs. People, 141 111. 195. This criminal intent will be implied from an attempt to pro- duce an abortion not necessary to preserve life. Scott vs. People, 141 111. 195. Proof of justification rests upon defendant when act is unlawful in itself. Scott vs. People, 141 111. 195. ABSENCE See Death. ABSENT WITNESS See Former Testimony, Destruction, Suppression and Fabri- cation OF Evidence, Refusal to Produce Evidence, Best and Secondary, Certificates of Evidence, Depositions. ABSENT WITNESS or9 Presumptions : The unexplained failure to examine as a witness a person who has knowledge of facts in issue and who, under the circumstances, would be expected to be produced and is available, raises a pre- sumption against a party. This rule does not apply where omission is to call a witness who might ecjually as well have been called by the other party. Village of Princeville vs. Hitchcock, 101 App. 588 ; Lebanon Coal Co. vs. Zerwick, 77 App. 487; Amer. Steel Foundry vs. Kesner, 136 App. 52; Auerbach vs. Arguelles, 80 App. 167; XII 111. Notes 478, §40. Where neither party to a civil suit calls an available witness, whatever presumption may be indulged from the failure to call such witness will be against party to whose interest such witness would most likely incline. Zimmerman vs. Zimmerman, 149 App. 231. No unfavorable inference will arise from non-production of ex- employe. Tuthill vs. Belt By. Co., 145 App. 50. Failure to produce a witness who, if called would have been incompetent, does not justify unfavorable inference. Stitzel vs. Miller, 157 App. 390. Unexplained failure 1o call only eye-witness to accident fur- nishes ground for unfavorable inference. Lebanon Coal Co. vs. Zerwick, 77 App. 486. Right to Explain: Evidence may be given in behalf of party who fails to produce a witness, to explain why such witness was not produced. Warth vs. Loewenstein, 219 111. 222; Parker vs. People, 94 App. 648; Johnson vs. People, 124 App. 213; Hope vs. West. Chi. St. Ey. Co., 82 App. 311. Former Testimony: — In General: Testimony of witness given at coroner's inquest is not admissible as inquest is not judicial proceeding between same parties. P. C. C. & St. L. Ey. Co. vs. McGrath, 115 111. 172. (See Coroner's Inquest.) Testimony of absent witness is inadmissible though other party had opportunity to cross examine him. Brown vs. People, 145 App. 263. — Right to Introeluce: In no case may the former testimony of a witness who is present and testifies in the case be allowed to be given in evidence except for purpose of contradiction. Campbell vs. Campbell, 138 111. 612; Stout vs. Cook, 47 111. 530. When a witness is kept away by the adverse party, as between the same parties, it is competent to show what such witness tes- tified to on the former hearing. Stout vs. Cook, 47 111. 530; Letcher vs. Norton, 5 111. 575. Where witness is beyond jurisdiction of court, it should be shown that his deposition could not have been taken. Cassady vs. Trustees, 105 111. 560; Stout vs. Cook, 47 111. 530; I. C. E. E. Co. vs. People, 59 App. 256. Evidence as to what a witness may have sworn to on a former 10 ABSTRACTS OF TITLE trial is only competent for purpose of affecting his credibility, and cannot be used to prove facts previously svi^orn to. Buffer ty vs. People, 72 111. 37. — Proof by Bill of Exceptions: Cannot be proven by bill of ex- ceptions made up on former trial, even though his testimony may have been taken in short-hand. I. C. E. R. Co. vs. Ashliiie, 171 111. 313 ; Piano Mfg. Co. vs. Parmen- ter, 56 App. 258; Sargeant vs. Marshall, 38 App. 642. — Proof by Person Hearing Former Testimony: The former evidence of a witness may be established by any person who has heard the testimony given and can swear to it from memory. Miller vs. People, 216 111. 309. Justice of peace is competent to prove admissions of defendant on trial before him. Chase vs. Debolt, 7 111. 371; Wheat vs. Summers, 13 App. 444. — Proof by SfenoyrapJiic Nutes or Abstract of Counsel: (See Stenographer's Notes.) — Criminal Action: Former testimony of an absent witness cannot be given in evidence by the People, although out of the jurisdiction of the court by procurement of defendant. Bergen vs. People, 17 111. 425. Nor is such testimony admissible on behalf of defendant, even though on such former cause the People have had an opportunity to cross examine and the parties are the same as in which testi- mony offered was given. Brown vs. People, 145 App. 263. ABSTRACTS OF TITLE See Best and Secondary, Lost Instruments, Records, Regis- tration OP Title, Title. Defined : An abstract of title is a summary or epitome of all facts relied upon as evidence of title. It should contain a note of all convey- ances, transfers and other facts relied upon as evidence of claim- ant's title, together with all such facts appearing of record as may impair it. Heinsen vs. Lamb, 117 111. 549; Atteberry vs. Blair, 244 111. 363; XI 111. Notes 16, § 3. The word abstract, as used in relation to land, is commonly un- derstood to mean a writing in which is set forth the chain of the record title and containing all matters of record affecting the title, and necessary to be considered in determining in whom the record title was at the date of the al^straot. Curtis vs. Hawley, 85 App. 429; Union Deposit Co. vs. Chisholm, 33 App. 647. Admissibility in General: Where original deeds, as M^ell as record books in which they were recorded, have been destroyed, and neitlier party is able to produce copies of such deeds, resort may be had to secondary evidence to prove their contents, and abstracts of title, made by persons en- gaged in that business, are evidence in all courts of law or equity, and may be received to prove the contents of such deeds. Miller vs. Shaw, 103 111. 277. ABSTRACTS OF TITLE 11 Abstracts, made as required by statute, are secondary evidence. They are, however, only one kind of secondary evidence. The copies,^^extracts or minutes mentioned in statute are another kind of secondary evidence. A party may introduce either an abstract or the copies, extracts or minutes, and the latter are not secondary evidence of the former. To require proof of loss of abstract before "allowing copies, extracts or minutes to be introduced, is to require secondary evidence of secondary evidence, which is not permissible. Converse vs. Wead, 142 111! 132; Thatcher vs. Olmstead, 110 111. 2G. Not admissible to prove such facts as party is prepared to show by higher grade of evidence. Heinsen vs. Lamb, 117 111. 549, Wliere a deed is lost or destroyed, or not within the power of party to produce same, and the record is also destroyed, resort may be had to evidence of a two-fold character : First, an abstract, made in ordinary course of business prior to such loss or destruction, or letterpress copy thereof, may be read in evidence by party seeking to establish title : and Second, any copy, extracts or minutes from such destroyed records, or from originals of such, which were, at time of loss or destruction, in possession of any person then engaged in business of makinsr abstracts for others for hire. Steniheim vs. Burckey, 149 111. 241. Abstract is admissible against party though he be in possession, claiming title otherwise than under a sale for taxes or special assessments. Smith vs. Stevens, 82 111. 554; C. & A. E. E. Co. vs. Keegan, 152 111. 413. An abstract of title is not such a record as imports verity, and until its accuracy is proven, no presumption can ])e indulged in its favor. It has no more force than any other private memorandum made for convenience of owner. Steele vs. Boone, 75 111. 457. Continuation of abstract made by abstract makers in ordinary course of business is admissible ; also continuations made by em- ploye of recorder in ordinarv course of business. Hammond vs. Glos, 250 111. 32. In proceeding to establish title under Burnt Records Act, when foundation is laid by filing of proper affidavit, any abstract of title, made in ordinary course of busiiiess prior to loss of records, is ad- missible. Converse vs. Wead, 142 111. 132. To show good faith upon part of purchaser, it is proper to admit abstract in evidence, in connection with the testimony of the at- torney who examined it, to prove that purchaser relied upon record and written opinion of attorney as to state of title. Lennartz vs. Qnilty, 191 111. 174. In proceeding in Cook County for initial registration of title, an abstract is not admissible in evidence upon preliminary proof com- plying with amendment to section 18 of Torrens Land Act, but not complying with section 24 of the Records act, relating to the ad- mission of abstracts of title in evidence where the records are destroyed. Messenger vs. Messenger, 223 111. 282; XIV 111. Notes 800, §10. i^ ABSTRACTS OF TITLE Where the records of a court are restored after destruction, the record thus destroyed cannot be supplied or overcome by a nienior- audum in abstract ol title, showing the venue had been changed to some other court before the records were destroyed. Dinet vs. Eigenniann, 96 111. 39. An abstract is admissible to sliow that conveyance appeared upon it when exhibited to party taking mortgage upon the premises, and as affording a reason for obtaining a quit-claim deed from one who appeared to have made a mortgage on the land. Seaman vs. Bisbee, 163 111. 91. Preliminary Proof: — A'cccssity For: An abstract may only be read in evidence when it is shown by preliminary proof that the original of any deed or conveyance, or other written or record evidence, has been lost or destroyed, or that it is not within the power of the party wishing to use it to produce same, and the record thereof has been de- stroyed. It must be established that such abstract was made in ordinary course of business, prior to such loss or destruction. Glos vs. Wheeler, 229 111. 272; Glos vs. Hallowell, 190 111. 65. An abstract is incompetent to prove that a deed was recorded prior to destruction of records, unless deed itself is lost or de- stroyed. Walton vs. Tollansbee, 165 111. 480. Abstracts of title or books of abstracts are not admissible in pro- ceeding for initial registration of title, unless proper foundation v»oc nppTi 1 ?i 1 (i Glos vs. Cessna, 207 111. 69; Glos vs. Wheeler, 229 111. 272; Glos vs. Hallowell, 190 111. 65. The conditions upon which an abstract is admissible for purpose of showing title in party producing same, are statutory. Heiusen vs. Lamb, 117 111. 549. — Sufficiency Of: Where evidence shows that a deed has been destroyed and record thereof has also been destroyed, an abstract shown to have been made in the ordinary course of business and delivered to the parties interested in the land is, as to such deed, competent evidence. Eussell vs. Mandell, 73 111. 136. To introduce an abstract in evidence under Burnt Records Act, it is not necessary that any witness should testify from personal knowledge that such abstract was made in the ordinary course of business prior to loss of original. C. & A. E. E. Co. vs. Keegan, 152 111. 413. A witness who was familiar with the system of entries and mak- ing of abstracts by abstract makers, and their rules, and who had worked with their men before destruction of records, and who assisted them daily in taking off minutes of deeds from records may testify to meaning of abbreviations. Converse vs. Wead, 142 111. 132. Abstract must be made in ordinary course of business prior to loss or destruction of originals. Glos vs. Wheeler, 229 111. 272; C. & A. E. E. Co. vs. Keegan, 152 111. 413; Pumphrey vs. Giggey, 150 Ai^p. 473. Testimony of witness in proceeding to register title in Cook ABSTRACTS OF TITLE 13 County, that he had ordered abstract of title from the person who made it, subsequent to Chicago fire, and that it was a merchantable abstract is not sufficient preliminary proof to entitle abstract to admission in evidence. Glos vs. Wheeler, 229 111. 272. On bill for partition, for purpose of proving title, party may read in evidence, after showing loss or destruction of original deeds and records thereof, the extracts and minutes made from original deeds on the day they were filed for record, by a firm who were in the business of making abstracts, which minutes were made in the regular course of business and were in possession of such firm when the records of the original deeds were destroyed. Sternheim vs. Bui-ckey,''l49 111. 241. Testimony by one who knew the handwriting and signatures in vogTie in an abstract office, that an abstract of title made in such office was genuine, together with proof of the custody of such abstract for over thii'ty years, is sufficient to admit the same in evidence in a proceeding under the Burnt Records Act. Gooney vs. Booth Pkg. Co., 169 111. 370. In title registration proceedings, testimony of a witness that he was a professional abstractor, employed by abstract company, that he had revised and passed upon the abstract in question, and that it was a true and correct abstract, is sufficient preliminary proof for admission of same. CasAvell vs. Glos, 251 111. 505. Where only evidence on question whether abstracts were made in ordinary course of business is that witness knew the signatures attached thereto, and that they were of a firm engaged in such busi ness, and in his opinion, based upon examination of abstract, they Avere so made, is insufficient to admit same in evidence in proceed- ings for initial registration. Jackson vs. Glos, 249 HI. 388. Testimony that abstracts were ''ordered in the regular course of business" is not compliance with statutory requirement. "Ordinary course of business" applies to business of abstractor and not to business of persons ordering same. Culver vs. Waters, 248 111. 163. Abstract not shown to have been made by abstractors in ordinary course of business, or in absence of evidence as to when, where and under what circumstances it was made, is inadmissible. Waugh vs. Glos, 246 111. 604. That abstract was made in due course of business is not sufficient preliminary proof where witness' only knowledge concerning such abstract was gained from examination of same. Waugh vs. Glos, 246 111. 604. "Wliere abstract is shown to have been made by well known ab- stractors, or by clerk in their offices, before destruction of records, and delivered in due course of business, to a person, at that time, having an interest in the land, or a part thereof, and it is further shown such abstractors had been engaged in abstract business for several years before and after date of such abstract, it is ad- missible in evidence in so far as it relates to lost or destroyed deeds 14 ABSTRACTS OF TITLE in party's chain of title, upon a showing of their loss or destruc- tion, or his inability to produce them. Heinsen vs. Lamb, 117 111. 549. And the fact that abstracts were prepared in abstract office by clerk from memoranda and abbreviated notes taken from records by another clerk, and then signed by the principals in the firm name, does not render them inadmissible in evidence on ground that they are copies of copies. The data so collected from the records do not constitute the abstract, but only the material out of which they are constructed. Heinsen vs. Lamb, 117 111. 549. Testimony to the effect that witness was employed in office of the abstractor who made abstract offered in evidence, and had been for a number of years ; that in the course of his duties he assisted in making the same, and had personal knowledge that it was made in the regular course of business, and was satistied from the course of business and information that he had that the original records were examined at time the abstract was made, is sufficient prelim- inary proof to entitle the abstract to admission in evidence under amended section IS of act concerning land titles. Caswell vs. Glos, 251 111. 505. — Affidavits: An affidavit must be made by party to the suit or his agent or attorney, and the relation of agent or attorney must appear from the affidavit itself. Bauer vs. Glos, 244 111. 627. And must not only state that original deeds or instruments have been lost or destroyed, but also the records thereof have been destroyed. Bauer vs. Glos, 244 111. 627. If a proper and sufficient affidavit for laying foundation for in- troduction of certified copies of deeds in Burnt Record proceedings has been tiled, it is not necessary to formally offer it in evidence on hearing before master, but it is sufficient, when objection is made, to call attention to affidavit or exhibit it before the master. Glos vs. Gary, 194 111. 214. Contents and Sufficiency: It is no objection to admission of abstract in evidence that it fails to show some of the lost deeds were properly acknowledged. The statute does not require the abstract to note such fact. The exist- ence of the original deed is shown by preliminary oath, and abstract is admitted for purpose of showing title. Heinsen vs. Lamb, 117 111. 549. Notation of acknowledgment implies a complete one. Atteberry vs. Blair, 244 111. 363. In specific performance, sufficiency of abstract is determined as of time when abstract was to be delivered and transaction closed. Smith vs. Hunter, 241 111. 514. Fact that entries from government are not followed by patents is not valid objection after many years. Atteberry vs. Blair, 244 111. 363. An abstract of title should contain a summary of all grants, con- veyances, wills, and all records of judicial proceedings whereby the title is in any way affected, and all incumbrances and liens of record ABSTRACTS OF TITLE 15 showing whether they have been released or not, and should show; all facts of record as mav impair the title. Atteberry vs. Blair, "'244 111. 363. An abstract showing that one "Gardner T. Gorhara," accepted a conveyance from one "Samuel Durley," of an undivided one- half interest in land entered in the name of ' ' S. Durley, ' ' and ' ' G. T. Gorham." and that Gardner T. Gorham later executed a deed conveying the whole title, affords sufficient evidence of identity of parties, where for more than forty years neither S. Durley nor G. T. Gorham, nor any one claiming under them, had made any adverse claim to the premises. White vs. Bates, 234 111. 276; Smith vs. Steveus, 82 111. 554. Aider by Affidavits : Affidavits are as satisfactory evidence of celibacy as a statement by grantor himself in the instrument or the certificate of the officer taking the acknowledgment, which is nothing more than the state- ment of a matter which the officer is not required nor authorized to certify, so as to make his certificate evidence of the fact. Either the certificate or affidavit is accepted in real estate transactions as evidence of the fact. Identity of parties where initials are given may be shown by other evidence than the certificate. Atteberry vs. Blair. 244 111. 363. Defective abstract will not be rendered sufficient by affidavits made on information and belief, without personal knowledge of the facts. I Clark vs. Jackson, 222 111. 13; Knox vs. Despain, 156 App. 134; Vognild vs. Yoltz, 141 App. 45. Sworn or Letter Press Copies: Are admissible, pi'ovided opposite party is given reasonable opportunity to verity them; but no notice is recjuired by statute, and if opposite party has not had opportunity, he should ask for time to make the verification. Glos vs. Gary, 194 111. 214. Prior to amendment 1S87, letter press copies not admissible. Compton vs. Eandolph, 104 111. 555; King vs. Worthington, 73 111. 161. Sworn copy may be used as evidence provided party desiring to use same shall have given the opposite party a reasonable oppor- tunity to verify correctness of such copy. Where copy was de- livered to counsel for defendant at noon on day before trial, and left in his possessioji until four o'clock of the same day, time held sufficient to afford reasonable opportunity for examination, but if not, defendant should have asked the court to postpone the hear- ing until he could have further time. Sternheim vs. Burckey, 149 111. 241. To establish title under Burnt Records Act, after filing proper affidavit, petitioner may offer and the court shall receive as evi- dence any copy, extracts or minutes from destroyed records, or from the originals thereof, at the date of such destruction or loss, in the possession of persons then engaged in business of making abstracts for others for hire. Statute also provides that "sworn copies of any writing admissible under this section, made by per- .16 ABUTTING OWNERS son or persons having possession of such writing shall be admissible in evidence," etc., subject to the proviso therein named. Converse vs. Wead, 142 111. 132. The uncertified copy of a certified copy of an abstract is inad- missible. Hammond vs. Glos, 250 111. 32. Copies of abstracts of title, to be admissible under section 24 of the Records Act, need not contain all that is shown in originals. p:mson vs. Glos, 248 111. 275; Glos vs. Patterson, 195 111. 530. Whole Of: Party introducing abstract for purpose of showing title in him- self is not compelled to introduce same as an entirety, but may use such parts thereof as are necessary. Heinsen vs. Lamb, 117 111. 549. But if plaintiff in ejectment introduces only a part of an abstract of title to make out his case, and it, as a whole, shows the property is not in him, defendant may introduce the whole of it in evidence. Heinsen vs. Lamb, 117 111. 549. Objections : Wliere defendant in application to register title does not object to admission of abstract of title, for want of preliminary proof, but obtains permission to file objections later, he is not entitled, after applicant's testimony is closed, to urge before the examiner such specific objection, as such objection should have been orally made at time the evidence was offered, and reason assigned. Bjork vs. Glos, 256 111. 447. Presumptions and Burden of Proof : An abstract is presumed to have been made and signed at its date, such presumption being subject to relnittal. C. & A. R. R. Co. vs. Keegan, 152 111. 413. Where records were destroyed and it was shown that certain deeds were also destroyed, or could not be found, and an abstract of title was produced which had been made several years before by a firm whose business it was to make examinations of titles, it appearing that such abstract came from the former owner of the land, it was presumed that such abstract was made and delivered to some former owner and handed down as an accompaniment of the muni- ments of title, and admissible in evidence in proof of title in place of lost deed. Richley vs. Farrell, 69 111. 264. Party offering abstracts to prove title, which, on their face, do not show compliance with statute rendering such instruments ad- missible, has burden of showing them to be within the statute. C. & A. R. R. Co. vs. Keegan, 152 111. 413 ; Pumphrey vs. Giggey, 150 App. 473. ABUTTING OWNERS See Presumptions. ACCESS See Legitimacy, Heirship. ACCESSORIES 17 ACCESSORIES See Accomplices, Corroboration, Intent. After the Fact : Proof of the principal felony does not prove or tend to prove a party guilty as an accessory after the fact. Eeynolds vs. People, 83 111. 479. Where two parties are alone present at the time of the killing of another, and but £»ne does the killing, and the other does not aid, abet or assist in the killing, but afterwards both, with guilty knowledge, conceal the fact of the crime, the one not participating in the crime is only guilty as an accessory iifter the fact, and is not guilty of murder. ' '^' White vs. People, 81 111. 333. The offense of which an accessory after the fact may be guilty is not included in nor has it any connection with the principal crime. -' •'" *■■''' ^ Reynolds vs. People, 83 111. 479. One indicted for larceny cannot be convicted of being an acces- sory after the fact. Watts vs. People, 204 111. 233. The principal and the accessory after the fact may be indicted and tried together, but when so .joined the allegations against the principal and accessory should be included in one count, having but one conclusion. (Reynolds vs. People. 83 111. 479, explained.) People vs. Jordan, 244 111. 386. Before the Fact: — - Weight and Sufficiency of Evidence: It is not essential that indictment against one who is an accessory under the statute should describe the circumstances of the offense as they actually occurred. The allegations may charge, in direct terms, the accused with that which is the legal eff-'ect of such acts as were performed by him. Such allegation is fully supported by proof that another did that which is directly alleged to have been done by the accused, if it be shown that the accused was present, aiding, advising, encourag- ing and assisting such other to do the prohibited acts. Lionetti vs. People, 183 111. 253; Coates vs. People, 72 111. 303; Baxter vs. People, 8 111. 368. The advice or encouragement may be by words, acts, signs cr motions. White vs. People, 139 111. 143; Ritzman vs. People, 110 111. 3f)2 ; Lamb vs. People, 96 111. 73; Brennau vs. People, 15 111. 511. Where parties are jointly indicted for murder, and the evidence shows that one did the killing in the other's presence, to justify a conviction of the latter it must appear, beyond a reasonable doubt, that he aided, abetted or assisted in the killing. One who is present at the time a homicide occurs, and passively assents thereto, cannot be convicted of the crime where he does no act in aid of the killing. The testimony of a witness in a murder trial that one of the joint defendants said to him, shortly after the act, "You go home and we will get out of this by swearing a few lies," will not justify a Ev. — 2 18 ACCIDENT conviction of such defendant, in absence of other evidence connect- ing him with the crime. Jones vs. People, 166 III. 264; White vs. People, ll!9 ill. 14.5; Lamb vs. People, 96 111. 73. One cannot be convicted as an accessory unless proof shows prin- cipal is guilty. Love vs. People, 160 111. 501; People vs. Trumbley, 252 111. 20. But accessory is indictable and punishable as principal, notwith- standing principal is not convicted or amenable to justice. Couley vs. People, 170 111. 587. The aiding and abetting contemplated by statute concerning accessories, which is necessary to constitute one a principal to the homicide committed by another, consists in something affirmative in its nature; and even if thi*eats made were overheard and no effort was made to prevent their being carried out, such fact is not sufficient to convict as a principal. Crosby vs. People, 189 111. 298. ACCIDENT See Death, Coroner's Verdict, Insurance, Repairs After Ac- cident. No Other Accident: Proof that no other accident had occurred in the use or operation of the agency in question is inadmissible. Guiauios vs. DeCanip Coal Co., 242 111. 278; M. & O. Ey. Co. vs. Vallowe, 214 111. 124; Hodges vs. Bearse, 129 11!. 87; C. & W. Co. vs. Brooks, 138 App. 34; Woelfel Leather Co. vs. Thomas, 68 App. 394; Cochran vs. Kankakee !S. & L. Co., 179 App. 437. But where evidence of previous iunnunity from accident is ad- mitted, plaintiff' mav show accident to others. I. C. E. R. Co! vs. Treat, 179 111. 576. So where defendant offers evidence of impossibility of accident, plaintiff entitled to prove similar accident to others. C. & A. Brick Co. vs. Eeinneiger, 140 111. 334. (See Sidewalks- Similar Facts.) Conditions Relating to Accident : Evidence showing condition immediately after accident is admis- sible to show condition at time of accident. C. & N W. Ey. Co. vs. GiUisou, 173 111. 264; C. & A. Ey. Co. vs. Vipond, 112 App. 558; Slack vs. Harris, 101 App. 527; XIII 111. Notes 479, § 62. But not unless conditions remained unchanged. Keeds vs. Christian Coal Co., 149 App. 434; Goddard vs. Enzler, 123 App. 108; Mer. Trust Co. vs. Boucher, 115 App. 101; Mueller Bros. vs. Fnlton Mar. Co., 181 App. 685. Relation and connection between prior condition and time of accident must be shown. Pioneer Coop. Co. vs. Eomanov(ricz, 186 111. 9. Conditions over a year after accident are not admissible. Pierce vs. Decatur Coal Co., 151 App. 47. Proof of condition of lights on station platform confined to night of accident. Rowell vs. C. G. W. Ey. Co., 92 App. 103. ACCOMPLICE 19 Proof descriptive of surrounding conditions and location of ac- cident is adniissi))le. Gardner vs. C. & E. Ry. Co., 154 App. 178; N. W. El. Ry. Co vs O'Malley, 107 App. 599; Clayton vs. Brooks, 31 App. 62. ACCOMPLICE See Accessories, Husband and Wife, Immunity, Credibility. Defined : One who is in some way connected with the commission of a crime, though not as principal, and this includes all persons who have heen concerned in its commission, whether they are concerned, in strict legal propriety, as principal in first or set;ond degree, or merely as accessories. Cross vs. People, 47 111. 152; People vs. Turner, 260 111. 84. Competency : Accomplice is a competent witness. Collins vs. People, 98 111. 584; Bafferty vs. People, 72 111. 37; Cross vs. People, 47 111. 152; Gray vs. People, 26 111. 344. State's attorney has right to nolle the nidictment as to one of the persons indicted and call him as a witness. Love vs. People, 160 111. 501. Although it is not necessarv that such nolle be entered. Collins vs. People, 98 111. 584. Corroboration : Court may advise jury not to believe an accomplice unless he is confirmed, or only in so far as he is confirmed. It is a matter of discretion rather than a rule of law. Collins vs. People, 98 111. 584; Earll vs. People, 73 111. 329. Without criminal intent, a witness is not an accomplice so as to require corroboration. Cross vs. Poople, 47 111. 152; Love vs. People, 160 111. 501; Kelly vs. People, 192 111. 119. Testimony of an accomplice need not be confirmed in every par- ticular, but only as to some one fact or facts, truth or falsity of which goes to prove or disprove offense charged. Gray vs. People, 26 111. 344. (See Corroboeatign.) Acts and Declarations: liy one of several concerned in accomplishment of unlawful pur- pose are admissible as against all. Barron vs. People, 73 111. 256. Where a defendant in a criminal prosecution alleges as a defense that he was feigning complicity in order to detect the real criminal, and acting merely as a detective to fasten the guilt on his associ- ates, he may show any facts and circumstances tending to prove the truth of his claim. Price vs. Peojile, 109 111. 109; Love vs. People, 160 111. 501. (See Confessions.) Cross Examination: Inducements or promises may be shown. Waters vs. People, 172 111. "367; Conley vs. People, 170 111. 587. When testifying for People, after having been granted a separ- ate trial, he establishes his own guilt and implicating the accused, 20 ACCORD AND SATISFACTION great latitude slionld be alloAved, and witness may be asked wbether he expected to be more lightly punished if he testified for People. Stevens vs. People, 215 111. 593. Weight and Sufficiency: A fonviction may ))e sustained although the only evidence of guilt is that of a self-confessed accomplice. People vs. Feinberg, 237 111. 348; People vs. Frankenberg, 23G 111. 408; Juretich vs. People, 223 111. 484; Young vs. People, 221 111. 51; Colm vs. People, 197 111. 482; Kellj vs. People, 192 111. 119; XI 111. Notes 1246, § 174. Conviction of crime of receiving stolen property may be had on uncorroborated testimony of thieves, though latter contradict each other as to certain details and accused denies he had illegal dealings with such thieves. People vs. Baskin, 254 111. 509. ACCORD AND SATISFACTION See Compromise and Settlement, Receipts, Release. In General: It is necessary that satisfaction be proven. Jacobs vs. Marks, 183 111. 533. Where a person holding a claim against two, for which both are liable, is induced to receipt his claim by the false representations of one, the other, when suit is brought against both upon such claim, cannot take advantage nor derive any benefit from the transaction. Woolsey vs. Price, 98 App. 503. An accord and satisfaction, when relied upon, must be estab- lished by a preponderance of the evidence, kelley vs. Martin, 169 App. 92. What Constitutes: — In General: To constitute an accord and satisfaction, it is necessary that the money or check or whatever is offered should be offered in full satisfaction of the demand and should be offered in such a manner or accompanied by such acts and declarations as amount to condition that if tlie party to whom it is offered takes it, he does so in satisfaction of his demand. If the offer is made in such a manner and is accepted, the acceptance will satisfy the demand, although the creditor protests at the time that the amount received is not all that is due or that he does not accept it in full satisfaction of his claim. Canton Coal Co. vs. Parlin Co., 215 111. 244; N. W. T. M. Assn. vs. Crawford, 126 App. 648; Kingsville Pres. Co. vs. Frank, 87 App. 586. Accord and satisfaction is not necessarily the result of accept- ance of amount of tender offered in court. The intent is a question of fact. Fowley vs. Thompson, 173 App. 333 ; Alexander vs. Loeb, 230 111. 454. But acceptance by a creditor of a remittance from the debtor "to close account on last shipment" does not amount to a settle- ment in full, even though the remittance is for all the debtor admits to be due, if the circumstances of the transaction are not such as to indicate to the creditor that the remittance was sent ACCORD AND SATISFACTION 21 upon condition that its acceptance was to operate to discharge the debt. Steidtman vs. Lay Co., 234 111. 84. It is not essential to the creditor's right of action that he rescind the contract of settlement or return the money received, but only that he give the debtor credit for the amount paid. Eeed vs. Engel, 237 111. 628; F. & M. Ins. Co. vs. Caine, 224 111. 599; Pawnee Coal Co. vs. Rgyce, 184 111. 402; Hefter vs. Cahn, 73 111. 296. A release, not under seal, executed by the beneficiary in a benefit certificate upon the acceptance of a part of the amount of the cer- tificate, cannot be made the basis of a plea of accord and satisfac- tion in a suit upon the certificate, where there was no honest difi'er- ence between the parties as to the amount due, which was fixed by terms of the contract. The payment of a less sum is not a sat- isfaction of a larger sum even when so received without a release by deed. F. & M. Ins. Co. vs. Caine, 224 111. 599. ' — Joint Tort Feasors: A release to one of several joint tort feasors is a release to all, and an accord and satisfaction with one of them is a bar to an action against the other and notwithstanding the contract between the parties thereto is in writing, oral evi- dence by the other parties is admissible to prove what the actual contract was. Gore vs. Henrotin, 165 App. 222. — Acceptance and Retention of Checks: Retention of check, notwithstanding request to return it, and cashing it a year before suit, is sufficient evidence of accord and satisfaction. Stan vs. Regelin, 147 App. 550. Acceptance of a check, tendered upon an express condition that it should be in full payment of a disputed claim, is an acceptance of the condition as well as the money, and satisfies the claim, not- withstanding a protest by the creditor that the amount was not in full. Snow vs. Griesheimer, 220 111. 106; Worth Coal Co. vs. Parker W. Co., 157 App. 199; Rep. Jr. Co. vs. Sturges Mfg. Co., 181 App. 304. But the retaining of a check by a broker for services will not constitute an accord and satisfaction where good faith is lacking on the part of principal or where there is no affirmative proof that the check was tendered in full payment of the claim. Monroe vs. Orr, 171 App. 655. — Bona Fide Dispute: Accord and satisfaction result where it appears a bona fide dispute exists between the parties and money, draft or check has been accepted which is tendered on con- dition that, if accepted, it shall be received in full. Canton Coal Co. vs. P. & O. Co., 215 111. 244; Bingham vs. Browning, 197 111. 122; Probst vs. Ehrat, 140 App. 309; Beach Clawson Co. vs. Paper Co., 133 App. 61; Day Lbr. Co. vs. Serell, 177 App. 30; XI 111. Notes 18, § 4. The cashing of a check sent by a real estate dealer to another person as the latter 's share of the profits on sales of land cannot be held to be an accord and satisfaction if such other person, before 22 ACCORD AND SATISFACTION consenting to accept the cheek, was deceived by the dealer's mis- statement of facts known only to him. Eeed vs. Engel, 237 111. 628. — Liquidated Demand: An acceptance by creditor from debtor of less sum than the amount due, in full satisfaction of the debt, is a discharge of only so much of the debt as is equal in amount of the sum received. F. & M. Ins. Co, vs. Caine, 224 HI. 599; Ostraii--;h!.'. Gage vs. Eddy, 179 111. 492. The declarations of a father in his lifetime that he had, at a previous period, acquired land in the name of his child, with the design of defeating creditors, cannot be admitted to divest inter- est of child. Cochran vs. McDowell, 15 111. 11. — Reformation of Deeel: On bill against heirs to reform a deed, mistake may be shown by admission of deceased grantee. Purvines vs. Harrison, 151 111. 219. But declarations of deceased grantee in his favor are not ad- missible. Helm vs. Boyd, 124 111. 370. — Made in Ahsenee of Grantee: Alleged declarations of de- ceased grantors, out of presence of grantee, and against his in- terest, are mere hearsay, and not admissible against the grantee in suit by heirs and legatees of grantors, to establish that deed, 54 ADMISSIONS AND DECLARATIONS which was an absolute warranty deed, was merely a part of a mortgage transaction. Patterson vs. Patterson, 251 ill. 153. Grantor's declarations, out of presence of grantee, to the effect that absolute deed is in trust, are not admissible to impeach gran- tee 's title. Evder vs. Ryder, 244 111. 297; Potter vs. Barringer, 236 111. 224; Francis vs. Wilkerson, 147 111. 370; Higgins vs. White, 118 111. 619. — Time of Making: On bill to set aside a party's deed, his dec- larations made to strangers in respect to the means used to pro- cure the execution of the deed, when not contemporaneous with his act in making the deed, but in the nature of a narrative of past occurrences, are not admissible in evidence as part of the res gestae. Oliphant vs. Liversidge, 142 111. 160. — Mental Condition: Declarations and statements are admis- sible to prove the mental condition of grantor at time of execution of instrument sought to be set aside, if not made at too remote a period prior to or subsequent to the execution thereof. Do\\ie vs. Driscoll, 203 111. 480 ; Cf . Guild vs. Hall, 127 111. 523. In proceedings to set aside a will and certain deeds made by same person, declarations against interest by one of the grantees who was not a legatee under the will, that he considered the gran- tor to be of unsound mind, are competent upon issue of validity of deed. Bird vs. Bird, 218 111. 158. Declarations of grantor, made before or after the execution of deed, may be competent to prove his mental condition, but not to show undue influence or fraud. A person cannot impeach a deed or other instrument in writing which he has voluntarily made, by his subsequent parol declara- tions. Massey vs. Huntingdon, 118 111. 80. — In licference to Boundary Line: Declarations of a grantor in reference to boundary line of the premises conveyed, are not admissible against his grantees, if made after his conveyance. Diinaway vs. School Directors, 40 111. 247. Vendor and Purchaser: — Admissions of Vendee: Where the vendee of personalty has the same delivered to him, or the vendor consents or permits him to take and hold its possession, and while so in possession it is levied upon by his creditors, and the vendor replevies the same from the officer, proof of the declarations of vendee, that he was to give his note and security for the property before it was deliv- ered to him, is inadmissible as against the defendant. VanDuzen vs. Allen, 90 111. 499. — Prior to Sale: Declarations of a vendor, made before the sale, and while he was still in possession of the property, in dis- paragement of his own title, may be admissible against his ven- dee or those claiming under him. Gage vs. Eddy, 179 111. 492; Vennuni vs. Thompson, 38 111. 143. , The statements and declarations of a vendor of chattels, made ADMISSIONS AND DECLARATIONS 55 in absence of vendee, before the sale, are admissible in suit by a person claiming the chattels, to prove title in plaintiff before the sale. Such statements and declarations are binding upon vendee as privy by purchase from the vendor. Gill vs. Crosby, 63 111. 190. The statements and declarations of a vendor in reference to ownership of the property sold, made before the sale, are ad- missible on an issue of ownership, where the vendee is a party; such declarations bind parties and privies, and the vendee is a privy. Eandegger vs. Ehrhardt, 51 111. 101. — Siibscqucnt to Sale: The statements of a vendor of land, made after the sale, are not admissible for the purpose of show- ing that the transaction was fraudulent or to prove any other fact affecting the title of the vendee. Gridley vs. Bingham, 51 lU. 153. The admissions or declarations of a grantor of land, made after the sale, are not admissible to prejudice the rights of his grantee, and neither is his answer to a bill in chancery. Eusk vs. Mansfield, 25 111. 297. The admissions of a vendor of goods, made after a sale, are not admissible to show sale was made to defraud creditors. Jewitt vs. Cook, 81 111. 260. The declarations of a vendor in reference to the ownership of property, made after the sale, are not admissible to defeat title of his vendee, unless vendee is present and assenting, either ex- pressly or tacitly, to their truth. Eandegger vs. Ehrhardt, 51 111. 101. — Impeachment of Vendee's Title: Admissions of vendor, after sale, are inadmissible to invalidate title of vendee. Milling vs. Hildebrand, 156 111. 310; Fyffe vs. Fyffe, 106 111. 646; Gridley vs. Bingham, 51 111. 153. The acts or declarations of a vendor of property, which he has sold and delivered, cannot be received to prejudice the title of his vendee. Hessing vs. McClosky, 37 111. 342. The oral or written declarations of the vendor against the ven- dee is not proper evidence. Wheeler vs. McCorriston, 24 111. 41.^ Admissions of vendor, made after sale, in disparagement of title, are not admissible to defeat title of his vendee. But while it is true that the declarations of a vendor, after sale, are not competent against vendee, if the vendor, while on the stand, denies having made the declarations in respect to the fair- ness and genuineness of the sale, his attention being called to the time and place of making the same, it is competent to prove that he did make such statements, for purpose of impeachment. Hanchett vs. Kimbark, 118 111. 121. — To Construe Contract: The admissions by a vendor, in suit by third person against him and his vendee, of the execution of a contract of sale, is no admission of the proper construction to be put upon it in suit between vendor and vendee for specific per- 56 ADMISSIONS AND DECLARATIONS formance, or of the vendee's right to have the same specifically enforced. Fitch vs. Williard, 73 ill. 93. — Payment of Furcltase Money: While the recital, in a patent issned by state for land, of the payment of the purchase money by the purchaser, may not be evidence of the fact between third parties, yet when one claiming under the purchaser, in applyiug for the patent, places liis right to have it issued to him on tlie ground that such purchaser has paid for the land, this will be an admission by him that the purchase money was paid, and will be binding on him in application for dower by the wife of one claim- ing under such purchaser. Stowe vs. Steele, 45 Hi. 328, — Fraud: Conversation at time of sale of personal property, competent to establish fraud or lack of it. Smith vs. Bridge, 126 App. 596. — To Show Price of Goods: Where the son delivered to the father large quantities of grain to apply on the indel)tedness of the former to the latter, in suit by administrator of father against son, a sale bill of son's grain, made by father, is admissible, it being in the nature of an admission of the sum for which he sold the son's property, and tending to tix amount for which intestate was liable. Penn vs. Oglesby, 89 111. 110. Mortgagor and Mortgagee : — Made Contemporaneous With Execution: Admissions made at time of execution of chattel mortgage, are part of the res gestae and admissible in evidence. Busluieli vs. Wood, 85 111. 88. — Made Subsequent to Execution: Declarations of mortgagor subsequent to execution of mortgage, but not forming part of the res gestae, are inadmissible against mortgagor. Muthias vs. iViiller, 16-1 App. 113; Miller vs. Cork, 135 111. 191. — As Against Person Claiming Through Mortgagor: The dec- larations and admissions of a mortgagor of chattels, made after the execution of the mortgage by him, are not admissible in evi- dence to defeat the title of mortgagee in contest between the latter and one claiming under the mortgagor. Bell vs. Previ'itt, 62 111. 361; Eeed vs. Noxon, 48 111. 323; Gridley vs. Bingham, 51 111. 103; Miller vs. Cook, 135 111. 191. In contest between a mortgagee of chattel property and a pur- chaser from the mortgagor, in which the mortgagee claims the property as a fixture to property mortgaged to him, the answer of the mortgagor and his wife, admitting the chattels were fixtures to the realty, is not evidence against the purchaser of the prop- erty from the mortgagor. Long vs. Cochran, 128 111. 29. — As Against Subsequent Incumhrancers: As against subse- quent incumbrancer, the admission of a mortgagor of a mistake in the starting point of the boundaries of a prior mortgage is not sufficient evidence. To affect the subsequent incumbrancer 's rights. ADMISSIONS AND DECLARATIONS 57 there must be proof of the mistake, and that he had notice of it at the time he took the mortgage. Eussell vs. Ranson, 76 111. 167. — To SJiow Acquisccnce in Sale: The declarations of a mort- gagor, before making conveyance of property, that he claimed under title, and the fact he executed his deed without considera- tion, are proper to be considered in determining the question of whether he acquiesced in the sale. Cornell vs. Newkirk, 144 111. 241. — Mortgagor's Intention: Declarations of mortgagor as to his intention in execution of mortgage, unless knowledge of them is brought to mortgagee are inadmissible, and his connection with them must first be shown before they can be otfered. Prior vs. White, 12 111. 261. — Attachment xigainst Mortgagor: Declarations of mortga- gee, made either before or after the execution of the instrument, and who did not act as agent of the mortgagor in making the mortgage, are not admissible in evidence in suit by creditor against mortgagor alone, charging such conveyance to have been made for purpose of hindering ajid delaying creditors. Rood vs. Noxon, 48 'ill. 323, Matters Affecting Title: — To Overcome llecord Title: Where a party shows a clear title of record to a tract of land, it cannot be overcome by proof of his casual admissions, made over twenty years before, to the ett'ect that another person had an interest in the premises. Johnson vs. Filson, 118 111. 219. Conveyance of land cannot be shown by parol evidence, and the execution of a deed cannot be proven by the admissions of persons not themselves shown to have been in privity with the title under which the grantee claims, nor can the execution of a deed be proven by showing the state of accounts between the par- ties. Where a son has a complete chain of title without deraigning through his father, and it is sought by the father's creditors to prove a deed from him to the father, for the purpose of attacking the father's subsequent deed to him, and a deed by the son to a third person, as fraudulent, the admissions and declarations of the father, made out of the presence of such third party, and after he had obtained his deed, are not admissible or competent evidence to prove the execution of the deed to the father, whether made after or before the deed from the father to the son. Clark vs. Wilson, 127 111. 450. — As Proof of Title: Plaintiff cannot prove his title by de- fendant's admissions, not made for purpose of suit. Mason vs. Park, 4 111. 532; La very vs. Brooke, 37 App. 51. — To Impeach Title: If the Statute of Limitations has run in favor of a person in possession of land, his title so acquired can- not be divested by his declarations inconsistent with his claim that his possession is adverse ; but if the Statute has not run in his favor such declarations are competent, but not conclusive of the character of his possession. Lyons vs. Stroud, 2.17 111. 350; Carroll vs. Rabberman, 240 111. 450; 'l. C. R. R. Co. vs. Wakefield, 173 111. 564. :58 ADMISSIONS AND DECLARATIONS Admissions against interest of party making tliem, in respect to his title to property in question, are admissible. Kich vs. Nafziger, 248 111. 45.5, (See Adverse Possession.) By Party in Possession : To Prove Title in Declarant: Where grantor remains m possession, treating the property as his own, declarations tliet he owned the property are competent upon bill to set aside such deed. Jones vs. King, 86 111. 225. The declarations and statements of a defendant in execution, while in the actual possession of property, exercising full con- trol over it, directing the workmen repairing the same, and offer- ing to sell same, claiming it as his own, are legitimate and proper evidence against one claiming the property as against the sheriff who has levied upon the same for the debt of party whose dec- larations are sought to be shown, as they are part of the res gestae. Amick vs. Young, 69 111. 542. To Prove Title in Another: Declarations of party in pos- session of land are admissible to show character of his own pos- session, but not to prove title in another. Godfrey vs. Dixon Power Co., 247 111. 124. To Explain Title: Declarations of ownership by one in act- ual possession, though not made as incident to any particular acts of dominion, are part of the res gestae of possession and ad- missible as explanatoiT of title claimed. Knight vs Knight, 178 111. 553; Shaw vs. Smith, 167 111. 269; Shaw vs. Schoonover, 130 111. 448; Ey. Co. vs. Houghten, 126 111. 233; Grim vs. Murphv, 110 111. 271; James vs. Ky. Co., 91 111. 5o4; XII 111. Notes 499, § 198. Declarations of party in possession of personal property or growing crops, explanatory of that possession, are admissible in evidence on question of ownership. Leiserowitz vs. Fogarty, 135 App. 612. — In Disparagement of Title: Admissions of a party in pos- session, claiming title, are admissilile against his own title. Waggoner vs. Cooley, 17 111. 239. Declarations in disparagement of title of declarant in posses- sion of lands are admissible as original evidence. So where a boundary line of a lot is in dispute, and depends upon the true line of a street, the declarations of a former owner, while in pos- session of the lot, as to the location of the line of the street, are admissible in evidence against the one claiming under him. City of Elgin vs. Beekwith, 119 111. 367. In action against a sheriff to recover damages for selling the property of plaintiff under an attachment against another per- son, the declarations of the defendant in attachment, while in ap- parent possession of the property, as explanatory of his posses- sion and in disparagement of any claim in himself, are admissi- ble in behalf of plaintiff; and he may also prove the fact that while in possession of the property he claimed it as his own. Whitaker vs. Wheeler, 44 111. 440. — To Shoiv Extent of Possession: "Where a lessee of a tract of land, at time of his entry upon the improved portion thereof un- der his lease, and before any dispute had arisen in relation thereto, declared he claimed possession of the entire tract, in subsequent ADMISSIONS AND DECLARATIONS 59 forcible entry and detainer suit, such declaration was admissible in his own behalf to show extent of his possession. Kotz vs. Belz, 178 111. 434. In trespass quare clausum f regit, by owner of land, the defend- ant set up his occupancy of that portion of the premises upon which the alleged trespass was committed ; plaintiff endeavored to show abandonment of such occupancy, by defendant having moved off the fencing, etc. It was competent to prove the dec- larations of defendant in that regard, at the time he was remov- ing the fence, as part of the res gestae. Welch vs. Louis, 31 111. 446. — To Shoiv Character of Possession: Acts and declarations of person, while in possession of land, may be given in evidence to ex- plain character of his claim and possession. Towle vs. Quante, 246 111. 568. Privies : — In Estate: The declarations and admissions of privies in estate, made before parting with their interest, are admissible in evidence against the parties succeeding to their estate. Mueller vs. Rebham. 94 111. 142; Laug vs. Metzger, 101 App. 380. The term privity denotes mutual or successive relationship to the same rights of property, Keith vs. Thayer, 181 App. 370. — In Blood: Admissions of privies in blood are admissible against each other. Green vs. Green, 162 App. 91. (See Former Testimony.) — Adminisfrafor: Admissions made by the administrator of an estate cannot bind a joint promisor with the intestate. Marshall vs. Adams, 11 111. 38. Admissions of administrator before appointment not binding in official capacity. Goodiug vs. Life Ins. Co., 46 App. 307; Prud. Ins. Co. vs. Frederichs, 41 App. 419. — Assigiior and Assignee: Where the holder of a chose in action already matured, makes admissions and declarations against his interest in respect thereto, while such holder, such admissions and declarations are competent as original evidence against an assignee after maturity. The admissibility of such evidence is not affected by the cir- cumstance whether or not the declarant is a competent witness, or whether lie was, in fact, a witness for the defendant. The evi- dence is admissible on the ground that the declaration was against the interest of party making it, in the nature of a confession, and on that account was so probnb.lv true as to justifv its reception. Sand if er vs. Hoard, 59 111. 246. The admissions of an assignor of chattel mortgage against his own interest, made before he assigned the instrument, are admis- sible against his assignee. Anderson vs. Brew. Co., 173 111. 213. Admissions made by the owner of bills and notes are admissible as evidence against the purchaser. Curtis vs. Martin, 20 111. 557; Driskell vs. Flint, 181 App. 137. If the holder of a note or other evidence of indebtedness, then due, which is claimed to be fraudulent as to other creditors of the 60 ADMISSIONS AND DECLARATIONS maker, admits or states that the maker in fact owes him nothing, and afterwards transfers the same to another, his admission is proper evidence against his assignee, who takes subject to all the equities against the assignor. Hanchett vs. Kiuibaik, llS 111. 121. Any declaration made by the payee of a promissory note, while owning the same, is proper evidence against a subsequent hohler by deliver merely, but after the sale and delivery, in good faith, any such declarations are not admissible except as impeaching testimony, where a proper foundation has been laid. Thorp vs. Goeway, 85 111. G12. — Heirs: The admissions and declarations of a deceased per- son, made against his interest, are admissible in evidence against his heirs. First Natl. Bank vs. Bennett, 215 111. 398. Admissions of one heir at law are not admissible to bind other heirs-at-law, Stitzel vs. Miller, 250 111. 72. — Devisees: Admissions and declarations of devisees and lega- tees are inadmissible to affect the rights of those claiming under the will. Kellan vs. Kellau, 258 111. 256; Cunniff vs. Cnuniff, 255 111. 407._ Except where legatee is sole beneficiary interested in sustaining will. Egbers vs. Egbers, 177 111. 82; McMillan vs. McDiU, 110 111. 47. And if deceased, admissible against one v.dio had succeeded by devise on the ground of privity of estate. Mueller vs. Eebham, 94 111. 142. Are inadmissible to show undue influence. Campbell vs. Campbell, 138 111. 612; Cunniff vs. Cunniff, 255 111. 407. Or mental incapacitv or insanity. McMillan vs. Mcl^ill, 110 111. 47. Such evidence is incompetent as against the party making them as it could not affect the issue without affecting the other defend- ants. McMillan vs. McDill, 110 111. 47. — Peirties to Contract: If there is an oral contract between parties whereby one party is to have the other's land at the hit- ter's death, declarations of the latter, in absence of former, incon- sistent with contract, are not l)inding on the former. Vail vs. Eynearson, 249 111. 501. Corporations : — Corporate Officers: Admissions of president of corporation, made in execution of his duties in business of corporation, within scope of his authority, are admissible against the corporation. Ey. Co. vs. Coleman, 18 111. 298; Ey. Co. vs. Ey. Co., 149 111. 272; M. S. D. Co. vs. Langbelt, 117 App. 652; XII 111. Notes 499 § IBS. Admissions by vice-president binding on corporation. Dornfeldt vs. Volkman, 138 App. 421. A letter from the president of a corporation is competent as an admission against the company, where written in connection with the transaction in question. Dovine vs. Fed. Ins. Co., 250 111. 204; Cent. Lbr. Co. vs. Kelter, 201 Til. 503. Letters from vice-president of corporation are admissible against ADMISSIONS AND DECLARATIONS fil the corporation where it appears that corporation approved of and directed the neij:otiations being carried on by him. Union Surety Co. vs. Tenny, 200 111. 349. — Directors and Stock-Holders: Admissions of a stock-holder or member of a. corporation are inadmissible against such corpora- tion. Ey. Co. vs. Burns, 92 111. 302. In suit by a creditor of a corporation seeking to enforce the personal liability of a stock-holder, ownership of stock may be shown by admission of defendant. Dows vs. Naper, 91 111. 44. Relating to Notes and Bonds: — In General: Admissions of payee if made while in possession of note are admissible against subsequent holder. Driskell vs. Flint, 181 App. 611; Thorp vs. Goeway, 85 lU. 611. Admissions made by the owner of a chose in action already matured are admissible against purchaser. Sandifer vs. Hoard, 59 111. 246; Hatchett vs. Kunbark, 118 111. 121. — As to Time of Apparent Alteration: AVhen note is presented to the maker for its payment, and he admits it to be correct, this IS evidence that an alteration, apparent on the face of the note, was made previous to its execution, or, if afterwards, that it was made Avith the maker's consent. Ki]ig vs. Bush, 36 111. 142, — Impeachment of Assignment: Self-serving declarations are not competent to impeach assignment of notes and mortgages. Mahan vs. Sehroeder, 142 App. 538. — To Show Ownership: Declarations of the holder of unen- dorsed notes, during possession thereof, to the effect that they had been given her by the payee thereof before his death, are ad- missible in her favor, as tending to show her claim of ownership. Martin vs. Martin, 174 111. 371. — Declarations Relating to Notes not iti Issue: In action by in- dorsee against indorser of a promissory note, who, after discharge from his liabilities as such, made a new promise to pay same, it was error to admit, against plaintiff's objection, evidence of the declaration of defendant, made at a second interview of his own seeking in which he attempts to qualify such promise to apply it to another matter. Morgan vs. Peet, 32 111. 285. A conversation between witness and plaintiff, long before the occurrence of the matters in dispute, is improper. Carpenter vs. Ambroson, 20 111. 170. Matters Concerning' Domicile: — In General: Any declarations of the party, relative to and connected with act of establishing new domicile, are admissible. Matzeubaugh vs. People, 194 111. 108; Wells vs. Parrott, 43 App. 656. Paupers: Where the question is as to the place of residence of a pauper, it is proper to prove the statements of the pauper as to where he considered his home previous to the time of becom- ing a charge. Likewise what was said by the brothers-in-law of the pauper, with reference to their making a bargain for the wages, of alleged pauper with his employers, as tending to show 62 ADMISSIONS AND DECLARATIONS the relation of the parties, and whether the brothers-in-law regarded their home as the residence of such person. Dorr vs. Seneca, 74 111. 101. — Intent: Declarations of a party, so connected with the act of leaving, that they characterize the act, are admissible as estab- lishing intent. Matzeubaugh vs. People, 194 111. 108. Religious Association: Admissions of members of congregation not admissible against church trustees. Otherwise Avhen made by vote of congregation according to its rules. Thomas vs. Kutledge, 67 111. 213. Insurance : — Books of Society: A minute book kept by a subordinate lodge, containing entries required to be made by it in the per- formance of its agency for the society, is competent where it con- tains relevant admissions against such society. Piatt Grote Gilde vs. Eoss, 117 App. 247. — Declarations of Insured: In action upon benefit certificate, statements made by insured are competent evidence against the beneficiary^ Lundliolm vs. Mystic "Workers, 164 App. 472; Brown vs. IMystic Workers, 151 App. 517; Court of Honor vs. Dinger, 221 111. 176. Competency of declarations of insured does not depend upon presence of beneficiary. Town vs. Town, 191 111. 478. In determining whether deceased member of benefit society knew and acquiesced in mistake by clerk of society in making out cer- tificate, his declarations tending to show he did not know of the mistake are admissible. Town vs. Town, 191 111. 478. The admissions of a deceased member of a beneficiary associa- tion as to his acts in relation to his certificate of membership are admissible in evidence in suit by his beneficiary against the asso- ciation. Natl. Union vs. Hunter, 99 App. 146. In suit upon certificate in mutual benefit society, under which insured had power to change beneficiary and pay assessments or drop the membership, his declarations that he would no longer pay the assessments may be shown in connection with fact that he failed to pav. Van Frank vs. Ben. Assn., 158 HI. 560; Hansen vs. Supreme Lodge, 140 111. 301. Declarations of insured, made some time before making appli- cation for insurance, and not part of the res gestae, are mere hear- say. Minn. Ins. Co. vs. Link, 131 App. 89. (See Insxirance.) Trusts : — Express Trust in Land: An express trust in land cannot be established by oral admissions of party sought to be charged therewith. Mining Co. vs. Hulberg, 220 HI. 578; Stephenson vs. McClintoek, 141 111. 604. — Resulting Trust: There is a distinction between admission ADMISSIONS AND DECLARATIONS 63 by holder of title that a third party's money paid for the land, and an admission that a third party is interested in it. Wells vs. Messenger, 249 111. 72. — Admissio)is of Trustee: A party acting in the liduciary ca- pacity cannot make any admissions to the prejudice of the trust fund, and against the cestui cjue trust. Thomas vs. Bowman, 29 III. 42G. (See Trusts.) Pleadings : — Former Pleadings: Admissions made in pleading in another action may be shown. Blew. Co. vs. Berner-Mayer Co., 83 App. 446. Admissions contained in pleading filed in cause pending in court are competent proof in another suit. Biirgeuer vs. Lippold, 128 App. 590. Defendant's answer in former suit is competent as admission. Cully vs. People, 73 App. 501. Equity pleadings are competent in action at law as admissions of fact. Wadsworth vs. Duncan, 164 111. 360; Fairbanks vs. Badger, 46 App. 644. Statements in former pleadings are admissible and their weight is to be determined from all the facts and circumstances under which they were made. Gardner vs. Meeker, 169 111. 40. A plea in a former suit is inadmissible unless accompanied by declaration to which same was tiled. Gardner vs. Meeker, 169 111. 40. Bill of complaint in different suit but relating to same subject matter, containing averments as to matters of fact which were in- volved in present suit, are competent evidence of plaintiff's ad- missions. Kanakakee Ey. Co. vs. Horan, 131 111. 288. — Aviended Pleading: An original declaration not sworn to and prepared by an attorney under a misapprehension of the facts is not competent against a plaintiff to overthrow an amended declaration, and the evidence introduced in support thereof. Lambert vs. Bell, 169 App. 500. — Bill of Particulars: A bill of particulars withdrawn on sec- ond trial may be admissible as an admission. Burn vs. Burn, 47 111. 507. — Demurrer: Demurrer is not competent as an admission. K. N. S. Ey. Co. vs. Horan, 131 111. 288. — Affidavit: Contents of an affidavit used in previous action or proceedings are competent as showing admissions, but are not con- clusive. Stone vs. Cook, 79 111. 424; I. C. E. E. Co. vs. Cobb, 64 111. 143. — Pleading not Filed: Pleading not filed, if authorized by party, may be admissible as evidence of admissions. The filing of the pleading is not necessary to its competency. Burnham vs. Eoberts, 70 111. 19, — Plea of Non Est Factum: Plea of non est factum, verified, without any other plea, admits all the allegations of the declara- tion, except the execution of the instrument. Eudesill vs. Jefferson Co., 85 111. 446 ; Oberman vs. Gaylord, 13 App. 30; Sugdeu vs. Beasley, 9 App. 71. — Bill and Answer: In suit in chancery against the mortgagor 64 ADMISSIONS AND DECLARATIONS and his wife and three others, where the mortgagor and his wife, in their answers, admit the execution of the mortgage, this dis- penses witli necessity of proof of execution for all parties. Fergus vs. Tinkham, 38 111. 407. On bill by surety on note, to be subrogated to rights of creditor and sureties on appeal bond, in appeal from judgment on note which was affirmed and paid by complainant, an averment in an- swer to bill that it is "stated in said bill that said complainant signed a note, etc.," is an admission that complainant was surety. Freiberg vs. Donovan, 23 App. 58. The record of a chancery suit is admissible as evidence in an- other suit to show what complainant claimed and to prove the fact that he prosecuted such claim, and his deposition taken in the former suit is admissible as tending to show what he claims and under whom. The statements in a bill in chancery, unsworn to by complain- ant, but merely 'signed by his counsel, are not admissible as evi- dence of his admissions in anothei- suit. They will rather be re- garded as the suggestions and statements of his counsel. Miller vs. Chrisman, 25 111. 269. A bill to set aside a tax deed cannot be construed as an admis- sion of title in defendant. Gage vs. Bissell, 119 111. 298. If fact is alleged in bill and admitted in answer, admission is conclusive and evidence tending to disprove it is not admissible. C. K. I. & P. Ry. Co. vs. People, 222 111. 427; Home Ins. Co. vs. Meyer, 93 111. 271; Wood vs. AVhelan, 93 111. 153. Although a bill in chancery, so far as it may be taken as the suggestion of counsel, is but feeble evidence against complainant of the admissions which it contains, it is yet some evidence of the same. Sehmissuer vs. Beatrie, 147 111. 210. An original unsworn answer is evidence of the admissions of party making same though withdrawn from the files. Daub vs. Englebeck, 109 111. 267. — Of Co-Defendant: The pleadings of one co-defendant can- not be read in evidence against another, except in particular cases, as where such defendants are partners, or where one is acting as the agent of the other, in any transaction to which the answer may relate, and the agency or partnership at the time of filing the answer, still exists. Rust vs. Mansfield, 25 111. 336. — Witlulrawcil of Plea: In suit on note, where defense is plea of illegal consideration, the withdrawal of the general issue is an admission of right of plaintiff to recover amount of note, unless the defense alleged in special plea was proven by a preponderance of the evidence. Gardner vs. Meeker, 169 111. 40. (See Former Pleadings.) Former Testimony: AVhat a party may have stated, although under oath, as a wit- ness, is admissible as an admission, although compulsory. Miller vs. People, 216 111. 309; Wheat vs. Summers, 13 App. 444; Gates vs. Gilman, 86 App. 215; Chase vs. Debolt, 7 111. 371; Devine vs. Stepaneh. 176 App. 61; Barron vs. Burk, 82 App. 116. (See Former Testimony.) ADMISSIONS AND DECLARATIONS 65 Depositions : Statements in depositions used in another case, adopted and acted on as facts, are admissible as admissions. Ey. Co. vs. Boone Co., 44 111. 240. Right of Court to Compel : To avoid an incumbrance of a record with proofs of matters that might be admitted, the court may compel an admission or denial of all such allegations as require proof. Stacey vs. Eandell, 17 111. 467. Estoppel : — Ill Pais: Ordinarily, admission may be explained. Smith vs. Mayfield, 163 111. 447; Eobins vs. Lasswell, 27 111. 265; Kadish vs. Bullen, 10 App. 566. Estoppel in pais are to prevent injuries from acts and represen- tations which have been acted upon. A declaration, to constitute an estoppel, must be one, the injurious effects of which might and ought to have been foreseen. It must be acted on in good faith, and the person acting upon it must have changed his situation so that injury would result to him, if the party making the declar- ation were allowed to retract it. Knoblc vs. Kircher, 33 111. 308. Estoppel in pais can only arise from acts which work injury. Mere declarations to strangers, unless communicated to and acted upon by party, will not operate as an estoppel. And generally, when the avenues of information are equally open to both parties, there will be no bar. Mills vs. Graves, 38 111. 455; Young vs. Fonts, 43 111. 33. — Recitals in Agreements: Parties are estopped by the recitals in agreements, and are bound by their admissions in them. Wynhook vs. Cowing, 21 111. 570; Farrar vs. Hinch, 20 111. 647. But where collaterally used merely as admissions, they are evidence only of such matters as admissions are competent to prove, and the fact that they are in writing adds nothing to their legal effect, when the subject matter of the admissions is a legal con- clusion. Lavery vs. Brooks, 37 App. 51. — Inducement to Action: The declarations of a party, not made with knowledge of the facts, or with the intention that they should be acted upon, or which, in fact, have not been acted upon, will not constitute an estoppel in pais. Winslow vs. Cooper, 104 111. 235. When a party is induced, by the acts and declarations of an- other to do an act which he would not have otherwise done, or omits to do an act he would have done but for the conduct of such party, and injury results therefrom, the party who induced such action, or non-action, must be held responsible for the consequences. Hefner vs. Vandolah, 57 111. 520. While the admissions of a party against his interest are always admissible in evidence against him, it may or may not be conclu- sive. If the other party, relying on it, alters his position on the faith of it, the party making the admission will be estopped. But, ordinarily, a mere admission, unaccompanied by any equitable cir- Ev.— 5 GG ADMISSIONS AND DECLARATIONS eumstances, which would render it conclusive, will not work an estoppel. llalloiivn vs. Ilalloran, 137 111. 100. A verbal statement is held suflicient when the party has made an admission which is clearly inconsistent with the evidence he pro- poses to give, or the title or claim which he proposes to set up, and the other party has acted on the admission and will be injured by allowing the truth of the admission to be disproved. Baker vs. Pratt, 15 111. .568. Unless admissions have induced a person to act upon them, and so altering his condition, they may be shown to be untrue; but it' a party has acted upon them, they will act as an estoppel on party making them. Young vs. Font, 43 111. 33. The admissions of a party to a civil suit, knowing his rights, are strong evidence against him, but he is at liberty to prove that such admissions were mistaken or untrue, unless some other per- son has been, induced to alter his condition, in which case he is, as to such persons or those claiming under him, but not as to others, estopped from disjuiting their truth. Ray vs. Bell, 24 111. 444. In order to create an estoppel in pads, by acts and declarations, the party estopped must have induced the other party to occupy a position he would not have occupied but for the acts and declar- ations. Ball vs. Hooteii, 85 111. 159. A party cannot rely upon an estoppel from acts and representa- tions upon which he was not induced to act otherwise than he would, nor can he, upon information given, which is no more than the public records disclose. St. Joseph's Mfg. Co. vs. Daggett, 84 111. 556. If a party make a declaration, or does any act to induce another to do an act which he would not otherwise do, or to invest his cap- ital on the faith of such declaration or act, he will be estopped to denv the truth of his declaration, or the just effect of his act. Hefner vs. Vandalia, 57 111. 520. Weig-ht and Sufficiency: Weight of admissions as evidence is for jury. Mauro vs. Piatt, 62 111. 450; Diversy vs. Kellogg, 44 111. 114; Young vs. Fonts, 43 111. 33; Frazel vs. Cole, 29 111. 465. As a general rule tlie statements of a witness as to verbal admis- sions of a party sliould be received with groat caution, as that kind of evidence is subject to imperfection and mistake. Where the admissions are deliberately made and precisely identified, the evidence afforded by them is of a satisfactory character. People vs. Riseho, 262 111. 596; Lipsey vs. People, 227 111. 364; Mar- zen vs. People, 173 111. 43; Sphwat-htgen vs. Schwachtgen, 65 App. 127; XII 111. Notes 502, § 220. Proof of admissions of party is the least satisfactory kind of evidence, even if witness testify through personal knowledge of the facts. O'Reilly vs. FitzGeralrl, 40 111. 310; Young vs. Fonts, 43 111. 33. Evidence of alleged admissions of a deceased person should be ADMISSIONS AND DECLARATIONS ' 67 received with great caution as such evidence is the most dangerous that can be admitted, and the most liable to abuse. Dangerfield vs. Hope, 157 App. 63. An admission amounts to but oral testimony and is liable to be rebutted by the party making it. It is regarded as the weakest and most uncertain kind of evidence, and ought to be received only in cases where parol evidence is properly admissible to show the same fact. Mason vs. Park, 4 111. 533. While it is true, as a general rule, that evidence of the admis- sions of parties is unsatisfactory, it is not necessarily and per se of that character. It may or may not be so, according to the cir- cumstances attending it, from which the .jury are to determine what weigiit it is entitled to, without any interference in that respect on the part of the court. Straubher vs. Mohler, 80 111. 21. Much depends upon the accuracy of the memory of the witness and the circumstances under which the admissions were made. Young vs. Fonts, 43 111. 33. Where an admission is delil)erately and understandingly made and precisely identified, it often affords evidence of the most sat- isfactory nature. But when it appears that the party making verbal statements or admissions w^as misinformed or did not clearly express his own meaning, or the witnesses misunderstood him, or cannot give the words used, so that, by altering the expressions used, a different effect may be given to what the party did say, it is of but little weight, and ought to be received and considered and weighed Avith caution. C. & N. Ey. Co. vs. Button, 68 111. 409. A party may rely on the admissions made by other party, in his testimonj^, against his interest, without being concluded by the other statements made in exoneration of his liability or in his favor. The statements of a party made against his interest may be accepted and acted upon by the .jury as true, while others made in his favor, though at the same time and as part of the same con- versation, may be rejected. Schmidt vs. Pfau, 114 111. 494. Evidence of admissions and statements of a party, in loose and casual conversations, occurring several years before the witnesses are examined relating to a subject or subjects in which they had no interest, where they do not pretend to give the exact phraseology used, or to show the exact connection in which the language was used, should be received with great caution, and unless corrobor- ated, will not be sufficient to establish a resulting trust. Harris vs. Melntyre, 118 111. 275. In order to make an admission or declaration of a party of any value as evidence, it ought to appear that it was made by the party with full knowledge of his rights, and deliberately. If made in ignoi-ance of his rights, it amounts to nothing. The jury, in weigh- ing such evidence, should consider all the circumstances throwing light on the admission. Winslow vs. Cooper, 104 111. 235. 68 • ADMISSIONS AND DECLARATIONS Admissions of one of the parties to a marriage contract, obtained under threats by the father of the injured party, with a deadly weapon in his hand, or by artifice of counsel, should be weighed with great caution. Fidler vs. McKinley, 21 111. 308. It is not true that, under all circumstances, admissions of a party are weak evidence ; sometimes they are the strongest and most satisfactory species of evidence. It is the province of the jury to weigh such evidence, and give it the consideration to which it is entitled; and in case of a conflict, the court has no right to tell the jury that an admission is a weak kind of evidence. Mauro vs. Piatt, 62 111. 450. Where one party gives evidence of the admissions of the other party, such admissions are not conclusive of the point to which they refer, in absence of other explanatory or contradictory evi- dence, but are to be weighed and considered the same as other evidence. The admissions must be, in themselves, consistent and not con- tradictory, and in such case it would not be true to say that they are conclusive, unless they are rebutted or explained by other evidence. It is the duty of the jury to receive such portions as they believe, and reject such portions as they may think untrue. Ayers vs. Metcalf, 39 111. 307; Young vs. Fout, 43 111. 33. "Where one party to a contract alleges certain things concerning the contract to be true, in presence of other party, and he remains silent, making no denial, such evidence is proper for the consider- ation of the jury, but it is not conclusive, nor is such silence evi- dence, always, of the truth of the statements thus made, because under a variety of circumstances, it would be highly improper to make a denial. The extent of the rule is that it is a question for the jury, in the light of all the circumstances, to say whether or not it amounts to an admission. Hagenbaugh vs. Crabtree, 33 111. 225. Parties cannot, by their admissions of law as to undisputed facts, bind the court to adopt their views, but they may estop themselves from afterwards denying an admission. People vs. Ft. W. & C. Ey. Co., 244 111. 166. It is material to consider whether an admission is made inde- pendently and because it is true, or is merely conversational, entered into between the parties from other causes than a convic- tion of its truth and only as a convenient assumption for the particular purpose at hand. Smith vs. Mayfield, 163 111. 447. With respect to all verbal admissions, they should 1)6 received with great caution. The evidence consisting, as it does, in the mere repetition of oral statements is subject to much imperfection and mistake, the party himself either being misinformed or not having clearly expressed his own meaning, or the witness having misunderstood him. It frequently happens also that the witness, by unintentionally altering a few of the expressions really used, gives an effect to the statement completely at variance with what the party actually did say. Bragg vs. Geddes, 93 111. 39; Eyder vs. Eyder, 244 111. 297. (See Conclusions of Witnesses.) ADOPTION 69 ADOPTION Burden of Proof and Presumptions : One claiming to be an adopted child for the purpose of inherit- ance must prove the petition for adoption contained the necessary requisites to confer jurisdiction upon the court. Kennedy vs. Borah, 226 111. 243. The jurisdiction must appear from the record itself; nothing will be presumed to be within the jurisdiction which does not dis- tinctly appear to be so. Kennedy vs. Borah, 226 111. 243 ; Watts vs. Dull, 184 111. 86 ; Barnard vs. Barnard, 119 111. 92. Admissibility of Evidence: Where many years have elapsed since the adoption proceedings were had, and the records of the court have been destroyed by fire, during which time the judge who presided has died, parol proof of compliance with the statute conferring jurisdiction upon the court is admissible. Kennedy vs. Borah, 226 111. 243. If the county court had jurisdiction to enter an order of adop- tion, such order cannot be attacked in a proceeding by the adopted child to have her portion of her adopted parent's estate awarded to her. Flannigan vs. Howard, 200 111. 396. ADULT See Age. ADULTERY See Dower. Definition : Adultery is illicit intercourse between a married person and one of the opposite sex, whether married or single. Miner vs. People, 58 111. 59; People vs. Martin, 180 App. 578. Marriagfe : Averment of marriage must be proven. People vs. Martin, 180 App. 578. To sustain a charge in criminal prosecution there must be proof of actual and not reputed marriage. Miner vs. People, 58 111. 59. Degree of Proof: A preponderance of the evidence only, and not a clear pre- ponderance, is necessary in action for divorce to establish a charge of adultery. Heyman vs. Heyman, 210 111. 524; Lenning vs. Lenning, 176 111. 180; Stiles vs. Stiles, 167 111. 576; Chestnut vs. Chestnut, 88 111. 548; Carter vs. Carter, 62 111. 439; Jenkins vs. Jenkins, 86 111. 340; Balswic vs. Balswic, 178 App. 118. Circumstantial Evidence: — In General: May be proven by the inferences arising from the acts of the parties, although not directly shown. Jones vs. Jones, 124 App. 201; Smith vs. Smith, 149 App. 596; Zimmermann vs. Zimmermann, 242 111. 552; Dunham vs. Dunham, 162 111. 589; Carter vs. Carter, 152 111. 434; Searles vs. People, 13 111. 597; XII 111. Notes 164, §46. 70 ADULTERY — Weight and Sufficiency: Suspicious circumstances are insuf- ficient to establish charge of adultery, Jones vs. Jones, 124 App. 281. It is sufficient if the evidence, when considered together, con- vinces the mind that the charge is true. ^ • '"' Daily vs. Daily, 64 111. 329. Adultery may he established by circumstantial evidence but the proof must convince the mind affirmatively that actual adultery was committed, ■ as nothing ^hort of the carnal act can lay a foundation for a divorce. Blake vs. Blake, 70 111. 618. Direct proof is not required, but may be proven by such facts and circumstances as by fair inferences would raise in the mind of a reasonable and just man a presumption of cohabitation and un- lawful intimacy. Heyman vs. Heyman, 210 111. 524; Stiles vs. Stiles, 167 111. 576; Bast vs. Bast, 82 111. 584; Daily vs. Daily, 64 111. 329; Smith vs. Smith, 149 App. 596. The question for the jury, in determining guilt in criminal action, is not whether there is sufficient evidence of the acts occur- ring in the particular county to prove guilt beyond a reasonable doubt, but whether there was such evidence tending to establish guilt as, when considered with all the evidence and as explaining the evidence, showing prior illicit relations, is sufficent to prove the offense charged beyond a reasonable doubt. Crane vs. People, 168 111. 395. Visiting house of ill-fame admissible ; character of house must be clearlv proven. Cooke vs. Cooke, 152' Dl. 286. That defendant had, on many occasions, been shut up alone in the room of a woman generally reputed to be unchaste, no ex- planation being given for the doors being locked and all entrances to the house liarred ; that he visited her almost daily, in the absence of her husband, on no apparent business ; that he paid her money, frequently met her at an eating house, had frequent rides with her, — together with other circumstances proved, unexplained, fully justified the court in finding defendant guilty. Daily vs. Daily, 64 lU. 329. Complainant testified to having detected the husband in act of adultery on several occasions with a woman employed in the house as a servant. The husband and servant both denied the charge of adultery, and there was no evidence tending to disprove their denial except that of the wife, and her testimony was improbable in details. The evidence was not of a satisfactory character to warrant a decree of divorce. Jenkins vs. Jenkins, 86 111. 340. The fact that the husband, after his wife left him, employed a man and his wife to come, and stay at his house for a few days, although the character of the man's w'ife for virtue may not have been good, does not prove the husliand's adultery, unless it is also shown that they were emploved for improper purposes. Carter vs. Carter, 62 111." 439. Evidence that the defendants, indicted for living in open adultery, ADULTERY 7-1 were living, to all outward appearances as husband and wife, that the man had a wife, and the woman had a husband, living and un- divorced, is sufficient when considered with the evidence of prior illicit relations between them, to sustain a verdict of guilty. Crane vs. People, 168 111. 395. • Occupying same berth in sleeping car admissible. Eawsom vs. Eawsom, 37 App. 491. If a married w^oman is shown, by undoubted proof, to have been in an equivocal position with a man not her husband, leading to a suspicion of adultery, and it is proven that she had previously shown an unwarranted predilection for that man; that they had been detected in a clandestine correspondence, had stolen inter- views, made passionate declarations ; that her affections were alien- ated from her husband, and that her mind and heart were already depraved, and nothing remained wanting' but an opportunity to consummate the guilty purpose, then proof that such opportunity had occurred, will lead to the satisfactory conclusion that the act had been committed. But, when those circumstances are want- ing, proof of the opportunity and equivocal appearances afford no proof of adultery. Blake vs. Blake, 70 111. 618. — Presumptions: When the facts and circumstances relied upon to establish the same, may well import innocence, as guilt, they must be held to import innocence. Carter vs. Carter, 62 111. 439; Jenkins vs. Jenkins, 86 111. 340. Adultery may be proven by circumstances, but the circumstances to raise the presumption of unlawful intimacy should amount to enough to produce a belief or conviction of the judgment that the parties had been co-habiting. Searles vs. People, 13 111. 597. Opinion Evidence: A witness who is not an expert may give his conclusion and the results of his oliservation, when the matter to which the testimony relates cannot be reproduced or described to the jury precisely as it appeared to the witness. Therefore it is not error to pei-mit a witness to give his opinion from sounds, noises and conversations heard in an adjoining room that an act of adultery took place, particularly wluu-e the sounds heard and the conversation detailed were so conclusive that the opinion of the witness could add noth- ing to their force. Carter vs. Carter, 152 111. 434. Character and Reputation of Parties: Defendant's reputation for chastity admissible. Thomas vs. Thomas, 51 111. 162. Character of alleged paramour admissible. Daily vs. Daily, 64 111. 329. Letters and Correspondence: Where a difficulty is admitted to have taken place between hus- band and wife, the cause of which is in dispute, the husband, who swears the cause w^as reading by him to his wife of certain unsigned letters, found in her possession, may properly read the letters as 72 ADVANCEMENTS part of the res gestae, even though they tend to prove improper conduct not charged in bill. Carter vs. Carter, 152 111. 434. Letters are incompetent to establish adultery unless they appear as part of a series, and it is shown they were assented to or acted upon. Jones vs. Jones, 124 App. 201. Letters written by alleged paramour are not competent as against a person charged with adultery, but letters written by person to such alleged paramour, showing affectionate disposition towards him, are competent. Loreuson vs. Lorenson, 155 App. 35; Razor vs. Razor, 149 111. 621. Where only issue is as to whether wife had resided in state for necessary period of time, and whether charge of adultery was true, letters to husband admitting miscarriage and declaration that she would bear him no more children, and consenting to his adultery, are inadmissible. Cliapman vs. Chapman, 129 111. 386. After Filing Bill: Evidence of adultery of defendant after filing bill is improper. Foval vs. Foval, 39 App. 644. In order to render subsequent acts admissible, there must be some independent proof of the acts relied upon. Wahle vs. Wahle, 71 111. 510. Kecrimination a^ a Defense: Proof tliat complainant has been guilty of adultery is a complete bar to divorce, whether alleged in the pleadings or not. Zimmermann vs. Zimmermann, 242 111. 552; Decker vs. Decker, 193 111. 285; Duberstein vs. Duberstein, 171 111. 133; Lenning vs. Lenning, 176 111. 180; Gordon vs. Gordon, 141 111. 160; XII 111. Notes 160, § 17. And though during pending of litigation. Zimmermann vs. Zimmermann, 242 111. 552; Davis vs. Davis 19 111. 334. Statutory Offense: The statutory offense of adultery cannot be proven by a single act, or even a number of acts of illicit intercourse. The statute requires an "open state of adultery." The living together must be open and notorious as if the relation of husband and wife existed, and the illicit intercourse habitual. Miner vs. People, 58 111. 59; Harmon vs. Harmon, 16 111. 85; Searles vs. People, 13 111. 597. Bill for Dower: Adultery by a wife after she has been wrongfully abandoned by her husband will not have the effect of barring her claim for dower in her husband's lands, and evidence of the same, on bill to assign dower, is inadmissible. Gordon vs. Diekirson, 131 111. 141. ADVANCEMENTS See Gifts, Trusts, Delivery, Husband and Wife, Parent and Child. ADVANCEMENTS 73 Defined : An advancement is a gift from a parent to a child or heir by way of anticipation of the whole or a part of that to which it is supposed the donee will be entitled on the death of the party mak- ing the advancement. Wallace vs. Eeddick, 119 III. 151. An advancement differs from a gift in as much as it is charged against the child ; and from a debt in that there is no enforceable liability on the part of the child to repay during the lifetime of the donor, or after his death, except in the way of suffering a deduction from his portion of the estate. Duckett vs. Gerig, 223 111. 284. How Established: — Must he in Writing: No gift or grant shall be deemed an advancement unless so expressed in writing by the donor or acknowledged in writing bj^ the donee. Gary vs. Newton, 201 111. 170; Marshall vs. Coleman, 187 111. 556; Bartmess vs. Fuller, 170 111. 193; XI 111. Notes 57, § 3. No material or essential part of the proof necessary to establish an advancement can be supplied by parol testimony. Young vs. Young, 204 111. 430. A verbal agreement by an heir to release his expectancy of his father's estate in consideration of the payment of a sum of money by his father is but an attempted advancement, and is void if not charged in writing by the donor as an advancement. Gary vs. Newton, 201 111. 170; Elliott vs, Western Coal Co., 243 111. 614. — Deed: A deed not disclosing on its face anything to indicate that the interests conveyed were intended as advancements is not sufficient. Bartmess vs. Fuller, 170 111. 193; Long vs. Long, 118 111. 638. And the recital in a deed from a father to a son, of "love and natural affection," as a consideration, is not sufficient to show the property conveyed is to be taken as an advancement. Wilkinson vs. Thomas, 128 111. 363. But the parol promise of an heir to accept a certain amount of property in lieu of his expected interest in his father's estate, when followed by the execution and delivery of a deed, and the posses- sion of the property conveyed, is valid. Crosman vs. Keister, 223 111. 69; Gary vs. Newton, 201 III. 170; Galbraith vs. McLean, 84 111. 379. And where a parent conveys land to son by deed, reciting money consideration, and son executes receipt stating he had received a certain sum as his full share of his parent's estate, the receipt is admissible and the conveyance constituted an advancement in full, and children of advanced heir are barred. Kershaw vs. Kershaw, 102 111. 307. — Will: The recital in a will "she having heretofore received the sum of $1,000 in real estate," does not comply with the statute. Wilkinson vs. Thomas, 128 111. 363. — Account Book: The rule that book accounts are only ad- missible in favor of the party who keeps them when the entries are made contemporaneously with the transactions recorded, applies to the books and entries of a deceased person. Marshall vs. Coleman, 187 111, 556. 74 ^ADVANCEMENTS An account hook showing charges of money paid to children by tlieir father from time to time does not sliow that 'sncli sums were advancements even though their father intended them as such, where there is nothing in writing evidencing such intention. Young vs. Young, 204 111. 430; Marshall vs. Coleman, 187 111. 556. The entry in a book, at the dictation of the intestate, just before his decease, of items of personal property previously given to his several children, is inadmissible in evidence to prove the indel)ted- ness to the estate. Such entries were not made in the usual course of business, and were mere memoranda of advancements made, and do not come within the statute. Tread way vs. Treaclway, 5 A pp. 478. The mere memoranda of what intestate had given to his chil- dren, without anything to show that the gifts were made as ad-. vancements, are not sufficient. Jones vs. Dawson, 68 App. 70. — Lost Instrument Evidencing: Proof of the loss of a written instrument alleged to show an advancement is unavailing without secondary proof of contents thereof. Marshall vs. Coleman, 187 111. 556. — Quit-Claim Deed to Ancestor: The mere making and deliv- ery of a quit-claim deed by a person to his grand-father, as to the lands of the latter, affords no evidence of an intention on the part of the grantor to release an expected inheritance. Long vs. Long, 118 111. 638. ' J- y/; •' ,' , ;, ' ' — Note Paid hy Parent: The l*etention"of a note paid by a parent as surety for the husband of a child, is not conclusive as to an intention not to consider the payment as an advancement, the note being marked paid. Kinney vs. Schumaker, 65 App. 342. — Destruction of Evidence:, Evidence that a son had posses- sion of his father's papers shortly after his death and deposited them in a bank does not give rise to tlie presumption that he destroyed or suppressed notes and books showing amounts advanced to hin'i by his father, where there is no competent evidence that such notes or books existed. Scott vs. Scott, 191 111. 628. It is presumed that testator mutilated book to destroy proof of advancement. Marshall vs. Coleman, 187 111. 556. Intent of Donor: — Parol: Whether the transaction was an advancement or a trust may be shown by evidence of intention at the time of the conveyance of the legal title. Brennaman vs. Schell, 212 111. 356. Under section 7 of the statute of Descent, providing that no gift or grant shall be., deemed an advancement unless so expressed or charged in writing by the donor or acknowledged by the donee in writing, parol evidence of donor's intention at the time gift was made is immaterial. Elliott vs. Western Coal Co., 243 111. 614. — Hoiv Must Be Proven: Prior to the enactment of section 7 of the Statute of Descent, it was a question of intention whether a ADVANCEMENTS 7Sr gift from parent to child was an advancement, and oral declar- ations of the donor at the time were admissible, and while the ques- tion of advancement is still one Of intention, yet such intention must now be expressed as required by statute. Elliott vs. Western Coal Co., 243 111. 614. Declarations of Donor: Declarations of the donor, whether oral or in writing, made several years after giving- property to his child, are not admissible to show the gift was intended as an advancement. Elliott vs. Western Coal Co., 243 111. 614; Long vs. Lone, 118 111 638. Where a will does not specify what notes or accounts or the amounts thereof are to be deducted from a son's share as advance- ments, but merely states whatever notes and unsettled accounts the testator holds against his son at the time of his death shall be con- sidered, declarations of the testator made to his attorney and others who were present when the will was made, but not in the presence of the son, as to the amounts of such notes and accounts, are not admissible ; nor can they be considered competent as part of the res gestae. Scott vs. Scott, 191 111. 628. Parol : No material or essential part of the proof necessary to establish an advancement can be supplied by parol. Elliott vs. Western Coal Co., 243 111. 614. An advancement cannot be established by parol evidence, but, on the contrary, "the gift or grant must be expressed in writing as an advancement or charged in writing by the intestate, or acknowledged in writing" by the donee or grantee. Bartmess vs. Fuller, 170 111. 193; Young vs. Young-, 204 111. 430; Brcnnaman vs. Sc-hcll, 212 Til. 356; Wilkinson vs. Thomas, 128 111. 363; Long vs. Long, 118 111. 636; Maxwell vs. Maxwell, 109 111. 588. Presumptions : The general rule is that if the purchase money is paid by the hus- band or father, and the legal title is taken in the name of a wife or child, the implication of resulting trust does not arise, but the presumption is that the conveyance to the wife or child was in- tended as an advancement. Baehseits vs. Leichtweis, 256 111. 357; Brennaman vs. Schell, 212 111. 356; Smith vs. Smith, 144 111. 299; Campbell vs. Potter, 147 111. 576; Duvall vs. Duvall, 153 111. 49; Goeltz vs. Goeltz, 157 111. 33; Fry vs. Morrison, 159 111. 244; XIV 111. Notes 903, §§51, 55. And this although the husl)and, for a long time afterwards, lives on the place and treats it as his own, paying taxes and making valuable improvements. ^ Fry vs. Morrison, 159 111. 244. But an advancement from a wife to her husband is not to be presumed from such a transfer. Francis vs. Ehodes, 146 111. 635. The presumption of an advancement may be rebutted or over- come by parol evidence of antecedent, contemporaneous or subse- quent facts and circumstances so immediately connected with it as to illustrate the intention of the parties, and which clearly shows 76 ADVERSE PARTY that it was intended that some beneficial interest or use was retained by the gi'antor. Campbell vs. Potter, 147 111. 576. It may be shown that the conveyance was not intended to be an advancement by proof of such acts and circumstances as clearly in- dicate that the intention wjis not to make an advancement. Johnson vs. Johnson, 138 111. 385. Proof that the parent reluctantly consented to the conveyance to a child by title purchased with the parent's money, being in- fluenced to do so by business reasons, and that after the conveyance the parent took possession and improved the property and after leaving the same, rented it to tenants, rebuts presumption that con- veyance was an advancement. Brennaman vs. Schell, 212 111. 356. Where one conveys land to enable the grantee to qualify as surety on the grantor's bond, and subsequently the surety conveys the land to the grantor's wife in order to avoid creditors in case of a suit on the bond, as to the husband and those claiming under him, the conveyance to the wife will be an advancement to her. Lewis vs. McGrath, 191 111. 401. Whether a purchase in the name of the wife or a child is an ad- vancement or not is a question of pure intention. Bachseits vs. Leiehtweis, 256 111. 357. Not every gift from parent to child is to be regarded as an ad- vancement. Elliott vs. Western Coal Co., 243 111. 614. Value : In ascertaining the value of advancements, it should be con- sidered as of the date when it was in fact made, and possession was taken, though not conveyed until afterwards, the deed taking effect as of the prior date. Pigg vs. Carroll, 89 111. 205. Re-payment : Advanced heir may show by extrinsic evidence that advancement described by testator was repaid after execution of will. Aster vs. Ralston, 179 App. 194. ADVERSE PARTY See Contradiction and Sustaining Witness, Witnesses. Right to Call: Under a mixed bill for discovery and other relief, waiving oath to the answer, plaintiff may have defendant sworn and examined as a witness. Hair Co. vs. Daily, 161 111. 379. Effect of Calling or Naming as Nominal Party: Fact that witness is called by adverse party does not qualify her to testify in her own behalf. Garrus vs. Davis, 234 111. 326; Merchants L. & T. Co. vs. Egan, 222 111. 494. A complainant cannot deprive defendant of the testimony of a ADVERSE POSSESSION 77 witness who is not a necessary or proper party, by making such witness a co-defendant. Afikman vs. Potter, 239 111. 578; Pain vs. Parson, 179 111. 185. Dismissal of witness as a complainant and naming him in the pleadings as a defendant has no eft'ect to render him an adverse party in interest to comj)Iainants and thereby competent. Pyle vs. Pyle, L'3M 111. 289; Bardell vs. Brady, 172 111. 420. Effect of Disclaimer of Interest: Party cannot be made a competent witness by releasing his in- terest. Volbracht vs. White, 197 111. 298. All executor, called as a witness in a will contest but withdrawn upon objection by contestants, may testify at a later stage of the proceedings where, in the meantime, he procures his discharge as executor from the county court and retains no interest in the suit as a party or otherwise. Smith vs. Smith, 168 111. 488. Contradiction and Impeachment: A party who calls the adverse party as his witness is not bound by the mere conclusions of such witness, and only by his statement of fact in so far as he is entitled to credit, and all other proper tests of the credibility of witnesses and the weight of the evidence. A party is not concluded by the evidence of a witness introduced by him whether a party or not. If a witness state facts against the interest of the party calling him, other w^itnesses may be called by the same party to disprove those facts, as such facts are evidence in the case ; and the other witnesses are not called directly to discredit the first, but the im- peachment of his credit is incidental, only, and consequential. Lasher vs. Colton, 225 111. 234; U. S. Brew. Co. vs. Ruddy, 208 111. 306; Higrhley vs. Amer. Natl. Bank, 185 111. 565; Rindskoph vs. Kuder, 145 111. 607; Mitchell vs. Sawyer, 115 111. 650; People vs. Paul, 143 App. 566; XIV 111. Notes 1151, §290. A party having called an adyerse party as a witness can not thereafter introduce what is known as directly impeaching testi- mony. Amer. H. & D. Co. vs. Hall, 208 111. 597 ; U. S. Brew. Co. vs. Ruddy, 203 111. 306; Bauman vs. Ash, 143 111. 649; Mitchell vs. Sawyer, 115 111. 650; Briggs vs. Keplinger, 159 App. 265. Where a plaintiff calls as a witness one of the owners of the de- fendant corporation, he may examine the witness in such a way as to elicit the facts, even though the examination partakes of the nature of a cross examination. N. A. Restaurant vs. McEUigott, 227 111. 317. ADVERSE POSSESSION See Abandonment, Color of Title, Ejectment, Good Faith, Possession, Title, Trespass. Presumptions : — In General: Adverse possession cannot be made out by in- ference or implication. Horn vs. Metzger, 234 111. 240; Zerngibl vs. Dock Co., 157 111. 430; McClellan vs. Kellogg, 17 HI. 498. 78 ADVERSE POSSESSION ,. Presumptions do not rim in favor of adverse claimants. White vs. Harris, 206 111. 584. Presumption as to jiossession favors le^al title as against color of title. Towle vs. Quante, 246 111. 568. Possession under deed is presumed to be co-extensive with deed. S. T. & H. R. Co. vs. Nugent, 152 111. 119. Possession is presumed to continue until interruption is estab- lished. Downing vs. Mayes, 153 111. 330. Where an entry is made with consent of owner, and subservient to his claim, possession will be presumed to continue in subordi- nation. C. & A. R. R. Co. vs. Keegan, 185 111. 70 ; Timraons vs. Kidwell, 138 111. 13; Bryan vs. E. St. L. R. Co., 12 App. 390; XI 111. Notes 83, § 207. Possession by widow before assignment of dower not presumed to be hostile to co-tenant. Lambert vs. Hemler, 244 111. 254. Joint possession by life tenant and remainder man is not pre- sumed to be adverse. Wright vs. Stice, 173 111. 571. Essential Elements: — In General: The intention with which possession was taken is a material factor in determining whether it is adverse. Kirby vs. Kirby, 236 HI. 255. Must be hostile or adverse, actual, visible, notorious, and exclu- sive, continuous, under claim or color of title. Zerngibl vs. Dock Co., 157 111. 430; Stewart vs. Andrews, 239 111. 186; Kirby vs. Kirby, 236 111. 255; Timmons vs. Kidwell, 138 111. 13. The possession must be such as to show clearly that the party claims the land as his own, openly and exclusively. Clark vs. Jackson, 222 111. 13; McClellan vs. Kellogg, 17 HI. 498; Roby vs. C. & C. Dock Co., 211 111. 173. - — Possession : Actual possession is necessary. Roby vs. Dock Co., 211 111. 173; I. C. R. Co. vs. Hatter, 207 111. 88. Constructive possession is not sufficient where possession alone is relied upon. Eli vs. Brown, 183 111. 575; Norris vs. Isle, 152 111. 190; Lnmsey vs. Brock, 110 111. 609. Possession must be visible and notorious possession. Roby vs. C. & C. Dock Co., 211 111. 173; Zerngibl vs. Dock Co., 157 111. 430. And must be exclusive. Clark vs. Jackson, 222 111. 13; Wright vs. Stice, 173 111. 571; Rob- bins vs. Moore, 129 111. 30. The adverse possession must be continuous. Stewart vs. Andrews, 239 111. 186; Kirby vs. Kirby, 236 111. 255; Byrnes vs. Edwards, 163 111. 494; Medley vs. Elliott, 62 111. 532. And under twenty year limitation, must be unbroken and con- tinuous without interruption. Morris vs. Seibold, 147 HI. 318; Shaw vs. Schoonover, 130 111. 448; Glos vs. Holberg, 220 111. 167. Adverse possession must be hostile in inception, and under claim of ownership. Clark vs. Jackson, 222 Til. 13; Morris vs. Seibold, 147 111. 318j Shaw vs. Schoonover, 130 111. 448. ADVERSE POSSESSION 79 — raijm< nt of Taxes: Payment of taxes is essential. Bell vs. Neidcrcr, 169 111. M; Taylor vs. Lawrence, 148 111. 388; Allen vs. Miinii, ,j5 111. -180. And must be for lull period oi' seven consecutive years, and continuous and unbroken. Miller \ s. lieich, 2()-4 111. 444 ; Bell vs. Neiderer, 109 111. 54 ; Converse ,, vs. Dunne, IGO 111. 25; Ueurichson vs. Hodfren, 07 111. 179. The full period of seven years must elapse from date of first pay- ment and before commencement of suit. Blair vs. Johnson, 215 111. 552; Burton vs. Perry, 146 111. 71 ; Iberg vs. Webb, 90 111. 415. If made before acquisition and color of title, suck payments will not avail. Wliite vs. Harris, 206 HI. 584. It is necessary that payment be made under color of -title or title. Horn vs. Horn, 234 111. 208; Durfrey vs. Q. B. & E. Co., 140 HI. 435; Cliiekerin^r vs. Taile, 38 111. 342. Admissibility of Evidence: Proof that person wlio had conveyed was generally reputed to be the owner is competent to show notoriety of possession, knowl- edge thereof by grantee and that possession was under claim of title. Knight vs. Knight, 178 HI. 553. Witness may state that party was in possession. Knight' vs. Knight, 178 HI. 553. Collateral facts and circumstances are admissible to extent of claim. Lancey vs. Brock, 110 III. 609. When one succeeds to possession of another, the identity and continuity of their possession may be shown by parol in order to make out period required to bar owner. Falloon vs. Simshauser, 130 HI. 649; Nauman vs. Birch, 91 App. 48; Weber vs. Anderson, 73 HI. 439. A transfer of possession may be proved by parol. Eich vs. Naffziger, 255 111. 98. Declarations of ownership by one in actual possession of land, though not made as incident to any particular acts of domination, are part of res gestae of possession and admissible as explanatory of title claimed. Knight vs. Knight, 178 III. 553 ; James vs. I. & St. L. E. Co., 91 111. 554; Shaw vs. Smith, 167 111. 269; Shaw vs. Schoonover, 130 HI. 448; I. C. E. E. Co. vs. Houghton, 126 HI. 233; Grim vs. Murphy, 110 111. 271. Declarations of claimant at time of entry are competent to show character of entry. Quinn vs. Eagleson, 108 111. 248. Declarations inconsistent with possession are not admissible to divest title where made after title acquired by limitations, but otherwise where period not complete. . , ^ , , Carroll vs. Eabberman, 240 HI. 450; I. C. E. E. Co. vs. ^\ akefield, 173 HI. 564; Lyons vs. Stroud, 257 HI. 350. Weight and Sufficiency of Evidence: Party claiming by adverse possession must prove his possession was adverse to the true owner, by clear and positive evidence. Lambert vs. Ilemler, 244 HI. 254; Kirby vs. Kirby, 236 HI. 255. 80 ADVERSE WITNESS Adverse possession of vacant land is sufficiently established under statute of limitations by such possession and acts of owner- ship as the premises are, in their situation, susceptible of, par- ticularly as against claimants who have abandoned possession to a lienholder because the lien exceeded the value of the property. French vs. Goodman, 167 111. 345, It is not essential to claim of title under seven years statute that there be oral declarations of claim. It is sufficient if the parties so act as to clearly indicate claim of title. Falloon vs. Simshauser, 130 111. 649; I. C. E. E, Co. vs. Houghton, 126 111. 233. Possession for seven years is not shown by proof of recording of deed and making entries in books with reference to the property. Glos vs., Wheeler, 229 111. 272. The survey of uninclosed land and the placing of stones at the boundary corners is not such a taking possession as is contemplated by the Limitation Act. White vs. Harris, 206 111. 584. To constitute possession by holder of color of title, there must be such an appropriation of the land by him as to indicate to the neighborhood that it is appropriated to his exclusive use. Stalford vs. Goldring, 197 111. 156. Questions of Law and Fact : Possession for statutory period is question of fact for jury. Johns vs. McKibben, 156 HI. 71; Kane vs. Footh, 70 111. 587; Eddy vs. Gage, 147 111. 162; Chiles vs. Davis, 58 111. 411; XI 111. Notes 84, § 218. ADVERSE WITNESS See Bias and Hostility, Credibility. ADVERTISEMENT See Rewards, Bucket Shops, Lottery, False Pretenses. ADVICE OF COUNSEL See Privileged Communications, Malicious Prosecution, At- torneys. AFFIDAVITS See Affidavits for Continuance, New Trial, Replevin, Wills. Defined : An affidavit is simply a declaration on oath, in writing, sworn to by a party, before some person who has authority under the law to administer oaths. Cox vs. Stern, 170 111. 442; Hertig vs. People, 159 111. 237; Harris vs. Lester, 80 111. 307 ; XI 111. Notes 85, § 3. AFFIDAVITS 81 Form: — In General: Need not be entitled in any cause or in any par- ticular way, and without any caption whatever, it is nevertheless an affidavit. Hertig vs. People, 159 111. 237; Harris vs. Lester, 80 111. 307; Hays vs. Loomis, 84 III. 18; Cf. Watson vs. Reissig, 24 111. 282. Venue may be ascertained by inspection of seal attached by notary. Cox vs. Stern, 170 111. 442. Omission of attestation of ot^cer may be cured. Pierson vs. Hendricks, 88 111. 34. Should appear on its face to have been sworn to. Kelioe vs. Eounds, 69 111. 351; McDermaid vs. Russell, 41 111. 489. When stating conclusions, must also state evidentiary facts upon which conclusions are based. Clark vs. Jackson, 222 111. 13, — Jurat: The jurat or certificate of officer administering oath is not a necessary part of the affidavit, and it may be shown aliunde that the statements in the affidavit were in fact made as they pur- port to be, on oath duly administered by an authorized officer. Cox vs. Stern, 170' 111. 442 ; Kruse vs. Wilson, 79 111. 233. Jurat is not conclusive, but may be shown to be false, and if shown to be false, and no oath in fact administered, instrument would not be affidavit. Cox vs. Stern, 170 111. 442; Kruse vs. Wilson, 79 111. 233. Amendment : It is improper to permit an affidavit to be amended by erasures or interlineations; if an affidavit be so amended without being re- sworn to, it ceases to be either an affidavit or an amended affidavit Moorehead vs. Briggs, 152 App. 361. Ex Parte Affidavits: Produced on motion to dissolve, cannot be read in evidence on final hearing, except by consent of parties. Atkinson vs. Linden Steel Co., 138 111. 187; Bressler vs. McCune, 56 111. 475; Ames vs. Stockhoff, 73 App. 427. An ex parte affidavit of a third person is inadmissible as evidence and amounts to no more than hearsa.y. Manning vs. Stockton, 34 111. 306;" Shreve vs. Town of Cicero, 124 III. 226. And the fact that it is a part of the files in the case does not change its character nor make it competent. Quinn vs. Eawson, 5 App. 130. Presumptions : AVhere a notary's jurat to an affidavit has no venue, it Avill be presumed that such notary administered the oath within the county in which he was authorized to administer oaths. Hertig vs. People, 159 111. 237; Stone vs. Williamson, 17 App. 175. In absence of any showing of the officer's authority on face of affidavit itself, it may be presumed from evidence afforded by other papers in the cause. Singleton vs. Wofford, 4 111. 576. A certificate under seal by a foreign notary public is not prinut Ev. — 6 82 AFFIDAVITS facie evidence of his authority to administer oaths unless it con- tains a recital of the fact of his authority. Desnoyeis Shoe Co. vs. Natl. Bank, 188 111. 312; Trevor vs. Colgate, 181 111. 129; Ferris vs. Com. Bank, 158 111. 238; Smith vs. Lyons, SO 111. GOO. Venue in caption is proof, until overcome by other evidence, that oath was administered in the place named. Van Dusen vs. People, 78 111. (345. A court cannot presume that a notary puhlic of another state has authority in the state, to administer oaths, and the authority of the officer administering the oath must be shown in some way, Init there is no law requiring the fact to be shown in any particular way. It may be shown by any competent evidence. Figge vs. Eowlett, 84 App. 238. Judicial Notice: Courts will take judicial notice of the official character of offi- cers empowered to administer oaths within their jurisdiction. Dyer vs. Flint, 21 111. 80; Thompson vs. Haskell, 21 111. 215; Stout vs. Slatterly, 12 111. 162; Eovvley vs. Berrian, 12 111. 198. Hence the jurat of a notary to affidavits made before him to be used in his county need not be authenticated by his notarial seal. Cox vs. Stern, 170 111. 442; Schaefer vs. Kienzel, 123 111. 430; Eich- enlianm vs. Levee, 78 App. 610. Particular Affidavits: — Voters: On application for leave to file an information in quo warranto, where it is claimed that an election complained of was void because the baljot was so printed as to be ambiguous and uncertain the affidavits of voters tending to show how they under- stood and marked the ballots and how they intended to vote, and the affidavits of the judges of the election as to how the marked ballots were understood and counted by them may be considered by the court. People vs. Sullivan, 247 111. 176. An affidavit by a voter, made three days after the election, to the etfect that he had inadvertently voted twice, is admissible on contest of election when voter has refused to testify but has not claimed his privilege. Eggers vs. Fox, 177 III. 185. — Attachment: The affidavit for attachment, bond and wTit are not evidence of defendant's indebtedness to plaintiff. Yost Mfg. Co. vs. Alton, 168 111. 564. — Change of Venue: An affidavit for change of venue because of prejudice of the judge or the inhabitants of a county against defendant, is not evidence to prove any issue in the case in which it is made, and should not be read in evidence to the jury. Yundt vs. Hartrunft, 41 111. 9. — Of Merits: An affidavit filed with a declaration in action on injunction bond, which recites "that there is now due from de- fendants to plaintiffs, after allowing them all just credits, deduc- tions and setoffs," etc., is not subject to the objection that it pur- ports to allow the credits, deductions and set-offs to plaintiffs in- stead of defendants. N. Y. Natl. Bank vs. Eeed, 232 111. 123. . — For Introduction of Copies: Where an affidavit for intro- AFFIDAVITS FOR CONTINUANCE 83 duction of a certified copy of a deed is positive in its terms and meets all the requirements of the statute, the opposite pai1y is not entitled to cross examine the affiant as to the truth of the affidavit. Glos vs. Garrett, 211) 111. 208. Affidavit intended to lay foundation for purpose of introduc- tion of records, "that all of the originals were not destroyed for purpose of using copy," defective. Scott vs. Bassett, 104 111. 602. In Aid of Plea: An affidavit in aid of plea of non est factum is not evidence for the jury. Miller vs. Mitzger, 16 111. 390. — Jurors: See Grand Jurors, New Trial. AFFIDAVITS FOR CONTINUANCE See Affidavits. Admissibility of Affidavits : — In General: The affidavit is, in the first instance, addressed to the court, but on being held sufficient and admitted, so much thereof as sets up the facts material and pertinent to the issue, which would be testified to by the absent witness, is to be admitted to the jury as the testimony of such witness. The other portions of the affidavit will have performed their office, and party cannot be permitted to introduce in evidence any part of the affidavit ex- cept that alleging the facts to be proven by the absent witness, and even in that will be limited to such facts as the witness could, under the evidence, testify to if present, — that is, such as are competent under the issues. Chi. City Ry. Co. vs. Dnffin, 126 111. 100; Supervisors vs. Ry. Co., 21 111. 337. Court is not bound to admit in evidence, on the trial, an affida- vit for continuance which has been admitted to avoid a continu- ance, without regard to the competency of its contents as evidence. When such affidavit, if admitted, could not affect the general re- sult, upon a trial, there is no error in excluding it. Slate vs. Eisenmeyer, 94 111. 96; C. S. P. Co. vs. Wolf, 133 App. 365. — As An Admission: An affidavit of a party for continuance is competent evidence against him on the trial, when relevant to the issue, it standing on the same footing as any other declaration made by him under oath. 'Farrell vs. People, 103 111. 17. — Under Different Form of Action: Affidavit of defendant in criminal prosecution for assault is admissible in subsequent civil suit for same cause, upon cross examination to impeach credibility of defendant. Wilson vs. Genseal, 113 111. 403. — WJwle of: Improper to introduce any part of affidavit other than part alleging facts to be proved. Chi. City Rv. Co. vs. Duffin, 126 111. 100; C. & N. W. Ry. Co. vs. Clark, 70 111. 276. — Containing Statements of Opinion: Statement in affidavit for continuance, that it was not. the duty of plaintiff to do a cer- 84 AFFIRMATIVE tain thing, but it was his duty not to do so, is only a conclusion of witness, and proof of form of such statement not admissible in action by plaintiff for damages for injury received while doing such work. Brooks vs. C. W. & V. Coal Co., 234 111. 372. — Judicial Admission: The admission that an absent witness would testify to certain facts, to avoid a continuance, is a judicial admission, which the party cannot be permitted to dispute. There- fore it is error to allow part of affidavit to go to jury which showed the statement the absent witness would testify to was made upon information and belief only. The effect of the admission of such portion would be to create in the minds of the jury a doubt not only as to truthfulness of statements, if sworn to, but also to the fact that the witness would, if present, testify as alleged. Chi. City Ey. Co. vs. Duffin, 126 111. 100. Effect of Admitting^: — Civil Actions: Illinois Statutes, (Annotated, Jones & Adding- ton,) Chapter 110, Section 8601. Affidavit will be received in evidence only so far as testimony of witness, if present would be admissible. Chi. City Ey. Co. vs. Duffin, 126 111. 100; C. & N. W. Ey. Co. vs. Clark, 70 111. 276; Supervisors vs. Ey. Co., 21 111. 337. A party, in admitting affidavit to avoid a continuance, does not admit the alleged opinions of witness contained in it, where opin- ions would not be competent if witness were present. City of Aurora vs. Scott, 82 App. 616. — Criminal Action: Illinois Statutes, (Annotated, Jones & Add- ington,) Chapter 38, Section 4124. Under admission that absent witness would testify as alleged in affidavit, truth of matters recited not admitted. Hoyt vs. People, 140 111. 588. Impeachment of Absent Witness: A party, to avoid continuance, having admitted that witness would swear to facts stated in affidavit, cannot, on trial, intro- duce evidence of admissions made outside of court by witness whose testimony was referred to in affidavit, for purpose of im- peaching him. ^^ ^^ C. & A. Ey. Co. vs. Lammert, 19 App. 135; City of Aurora vs. Scott, 82 App 616; N. C. St. Ev. Co. vs. Cottingham, 44 App. 46; Hel- big vs. Cit. Ins. Co., 120 App. 58; Chi. Sign Painting Co. vs. Wolf, 135 App. 366; Hoyt vs. People, 140 111. 588. That impeaching matter is in writing does not change rule as to laying foundation. N. C. St. Ey. Co. vs. Cottingham, 44 App. 46. AFFIRMATIVE See Positive and Negative, Burden of Proof. Burden of Proof : ^ .u t — In General: The burden of proof to establish the truth of a AGE 85 claim by a preponderance of the evidence rests throughout upon party asserting the affirmative of tiie issue. Chi. U. Trac. Co. vs. Mee, 218 111. 9; Supreme Tent vs. Stensland, 206 111. 124; Egbers vs. Egbers, 177 111. 82; Stevenson vs. Marony, 29 111. 532; XII 111. Notes 480, §46. The party holding the affirmative of an issue must prove it, and until the affirmative is established by proof, the negative is presumed to exist. Union Natl. Bank vs. Baldenwick, 45 111. 375. The burden of proof is upon him who has the affirmative of the issue, but there is an obvious distinction between the affirmative of the issue and the affirmative of the question. The affirmative of the issue is with him who affirms or asserts a matter in support of his claim or defense regardless of whether he affirms or asserts the affirmative or negative of the question at issue. Postlewaite vs. Highby, 83 App. 414, "Where a party asks a court to believe a proposition, and to base a finding thereon in his favor, the law casts the burden on him of furnishing the evidence upon which such finding can legally rest. Prentice vs. Crane, 234 111. 302. — Determined hy Pleading: The burden of proof is deter- mined by the pleadings, and the condition of the proof, and not- withstanding where plea is of the general issue, that defense is an affirmative one. Adams vs. Pease, 113 App. 356. Whenever, whether in plea or replication or rejoinder or sur- rejoinder, an issue is reached, then, whether the party claiming the judgment of the court asserts an affirmative or negative propo- sition, he nnist make good his assertion. On him lies the burden of proof. Osgood vs. Groseclose, 159 111. 511; Chandler vs. Smith, 70 App. 658. (See Burden of Proof.) Weight : Affirmative testimonv is of greater force than negative. C. B. & Q. E. Co. vs. Dickson, 88 111. 431; C. & A. R. Co. vs. Rob- inson, 106 111. 142; W. St. L. & P. Ry. Co. vs. Hicks, 13 App. 407. AGE See Pedigree, "Witnesses, Registers of Births, Deaths and Marriages. ADMISSIBILITY OF EVIDENCE: Family Record: Should be shown by whom the record was made. Kreitz vs. Behrensmeyer, 125 111. 141. Proof of age may be made by entries in a family bible, not- withstanding such entries were not made contemporaneous with birth. Swift & Co. vs. Rennard, 119 App. 173. — Parol: Parol is inadmissible to prove what family record contains. Kreitz vs. Behrensmeyer, 125 111. 141. — Copies: Copies of entries from a leaf in the family bible 86: AGENCY are not admissible on the testimony of witness that he made such copy at the request of one of the family ; that original leaf was somewhat torn and blotched, but could be read distinctly, and that the paper was wet and damaged some, and that he did not knov/ what had become of the original leaf. McDeed \^s. McDeed, 67 111. 545. — School Record: A school record kept by a teacher is compe- tent in connection with her testimony as to the age given by a child at the time of his entry into her school. Swift & Co. vs. Eennardj 119 App. 173. — Declarations of Deceased Person: The age of a deceased per- son may be established by proof of declarations of the deceased, blood relatives, or of husband or wife of the party whose pedi- gree is in issue, when made ante litem motam. The term pedigree embraces age, birtli, marriage, and death, and the dates or times when these events happened. Harvick vs. iModern Woodmen, 158 App. 570. — Confession: Where age of accused is a part of corpus delicti, his voluntary written confession is inadmissible to prove his age. Wistrand vs. People, 213 111. 72. COMPETENCY OF WITNESSES: Witness may testify to his own age. Eaymond vs. People, 226 111. 433 ; Mash vs. Peof-le, 220 111. 86. Or person who has known the party, whose age is in issue, since birth and childhood. C. & A. R. Co. vs. Levi^andowski, 190 111. 301; Greenwood vs. Spiller, 3 111. 502; Libre vs. Brotherhood of Yoemen, 168 App. 328. — Opinions of Witnesses: A witness cannot, in the first in- stance, express his opinion as to age from appearance. Witness should first describe the appearance of the individual whose age is in question, and then state his opinion in reference to the age of the person, based upon the appearance of that person as he has already descri])ed it. Poo[.le vs. Davidson, 240 111. ]91. INSPECTION BY JURY: The age of one accused of crime cannot be fixed from an inspec- tion of his person bv the iurv. Wistrand vs. People, 213 111. 72. But this rule does not apply to civil cases. Housten vs. Quiun, 168 App. 593. AGENCY See Admissions and Declarations, Husband and Wife^ Insur- ance, Res Gestae. Order of Proof: — Authority: ]\Iay first show the fact of the agreement or the acts of the agent, then follow with proof of authority of agent. ,E. & P. By. Co. vs. Cecil, 112 111. ISO; Mix vs. Osby, 62 111. 193. — Knowledge of Parly: A party dealing with an agent nuist prove that the facts giving color to the agency w^ere known to him when he dealt with the agent. If he has no knowiedge of sueh AGENCY 87 facts, he does not act iu reliance upon them and is in no position to claim anything on account of lliem. Alton Mfg. Co. vs. Biblical Ins., 243 HI. 298; Merchants Bank vs. Nichols & Co., 223 111. 41 j Jackson Mfg. Co. vs. Bank, 199, 111. 15 1 ; Eaws vs. Curtis, 19 111. 456. Presumptions : — Corporate Agents: The presumption relating to the author- ity of agents of corporations are not different than those relating to the authority of agents of individuals where the circumstances are the same. Merchants Bank vs. Nichols Co., 223 111. 41. — Continuance of Relation: The law raises no presumption that a special agency continues or extends to other matters. Eeed vs. Baggott, 5 App. ,257. Agency for person concerned in legal proceedings is presumed to continue throughout proceedings. Parker vs. Crilly, 113 App. 309. Burden of Proof: Party affirming existence of relation of agency' has- burden of proof. Schmidt vs. Shaver, 196 111. 108; Good vs. Akin,- 147 App. 390; Kearney vs. Aetna Ins. Co., 109 App. 609 ; Cliesley vs. Woods Motor Co., 147 App. 5SS; Calnnefs vs. Texas T. & L. Co., 152 App. 406; Proudfoot vs. Wightnaan, 78 III. 553. To show agency to collect accounts, burden Jcests .upon party making payment of same. , . o vM "^r' ^----.i Good vs. Arkin, 147 App. 390. - : Burden is on agent purchasing property of same class as that which he purchased for his principal, to show same was done with principal's knowledge and consent. Fox vs. Simmo'ns, 251 111. 316. Admissibility of Evidence : — Declarations and Acts of Agent: The fact of agency cannot be established by declarations of alleged agent and what he did. Merchants Bank vs. Nichols & Co., 223 111. 41 ; MuUanphy vs. Schott, 135 111. 655; Proctor vs. Tows, 115 111. 138; Elevator Co. vs. Iron Works, 153 App. 313 ; Sonnenschein vs. Malter Co., 144 App. 183 ; Taylor vs. Osborne, 86 App. 465 ; XIV 111. Notes 107, § 234. But an alleged agent is a competent witness to prove the agency. Eichley vs. Miller Brg. Co., 180 App. 645. The agent may testify to statements made at the time the agency is created. Leonard vs. Heavener, 171 App. 188. An agency may be proven by the agent himself if he will testify to his employment, or to such a course of conduct or dealing as will justify the presumption of his authority to act and bind his principal. St. L. S. & W. Ey. Co. vs. Elgin Co., 74 App. 619 ; Phillips vs. Poul- ter, 111 App. 330; People vs. McCann, 247 111. 130; Thayer vs. Meeker, 86 111. 470. Agency cannot be proven by acts of supposed agent, neither expressly or impliedly authorized by the alleged principal. Fleischman vs. Ballon, 131 App. 565. Mere fact that one assumes to act as agent without the knowl- 88 AGENCY edge or subsequent ratification of the principal is not sufficient to prove agency. Sievert vs. 111. Furniture Co., 178 App. 574. An entry by a collector showing payment of delinquent special assessment by a named person, as agent of the owner, is of no validity to prove the agency. Palmer vs. City of Chicago, 248 111. 201. Where one person has only assumed to act as agent for another in a single transaction, that act alone does not raise the presump- tion of appointment as agent to do the act. Walker vs. Wood, 170 111. 463. An admission of an alleged agent does not bind the principal, in absence of proof of agent's authority. Skarkowska vs. Brew Co., 152 App. 48; Manchester Lbr. Co. vs. Hanson, 176 App. 130. Evidence of declarations of agent is not admissible against prin- cipal for proving or enlarging his authority. Sonnenschein vs. Malter Co., 144 App. 183. — Admissions of Principal: Evidence of admissions of alleged principal are admissible against him. Kelly vs. Shumway, 51 App. 634. Letters written by the principal are admissible to prove agency as against him. Case vs. Lyman, 66 111. 229; Crane vs. Bank, 114 111. 516; Freet vs. Amer-Elec. Sup. Co., 171 App. 512. Admissions by the owner to an agent who was trying to induce him to allow the agent to make a sale to a certain party, that the deal, as to such purchaser, belonged to another agent, and if he made the sale he would have to protect the agent in his commis- sions, make a prima facie case of employment of the latter to make the sale. Kigdon vs. More, 226 111. 382. Evidence that one openly acts for another under circumstances implying knowledge on part of supposed principal, makes a prima facie agency. E. E. I. & St. L. E. Co. vs. Wilcox, 66 111. 417; Doan vs. Duncan, 17 111. 272. But evidence of isolated transactions is not sufficient. Fadner vs. Hibner, 26 App. 639. A contract signed by an agent is inadmissible against principal without proof of express or implied authority to sign. No infer- ence of such authority can be drawn from evidence that the agent had, in presence of principal, on two occasions, drawn up and signed contract embodying terms made by the principal. Fadner vs. Hibner, 26 App. 639 ; Daist vs. Doom, 38 App. 397. — Circumstantial: Agency may be proven by circumstantial evidence. St. L. S. W. Ey. Co. vs. Elgin Co., 74 App. 619; Phillips vs. Poul- ter. 111 App. 330; Thayer vs. Meeker, 86 111. 470. Similar previous acts of agent, done with approval of principal, are competent. Schoenhofen Brg. Co. vs. Wengler, 57 App. 184. But such color of agency must be known to party at time of transaction. Alton Mfg. Co. vs. Biblical Ins., 243 111. 298; Merchants Bank vs. Nichols & Co., 223 111. 41. AGENCY 89 — Prior Course of Dealing: Evidence of prior general course of dealing between principal and agent is competent as tending to show extent of agency. Haas Lbr. Co. vs. Harty Bros., 169 App. 323; Mcintosh vs. Ran- som 106 App. 172; Thornton vs. Lawther, 169 111. 228. — Parol: Parol evidence is inadmissible to explain, modify or enlarge terms of an appointment after same is reduced to writing. Davis vs. Ins. Co., 208 111. 375. Parol evidence of an agency is admissible though such agency exists by virtue of a power in writing, when party offering to prove the facts is a stranger to the instrument. Anglo-Wyoming Co. vs. Miller, 216 111. 272; Kaskaskia Bridge Co. vs. Shannon, 6 111. 16. Although in general the maxim is true that where an express power is conferred in writing, it cannot be enlarged by parol, or an authority be implied where there exists an express one, yet the maxim is applicable only to cases where the whole authority grows solely out of the writing, and the parol evidence applies to the same subject matter at the same point of time, and therefore, in effect, seeks to contradict, vary or control the effect of the writing. Where parol evidence seeks to establish a subsequent enlargement of the original authority, or give an authority for another object, or where the express power is engrafted on an existing agency, affecting it only suh moelo to a limited extent, the maxim loses its application. And where there was a written authority to the agent, but the principal, by his declarations and conduct, had au- thorized the conclusion that he had, in fact, given more extensive powers to the agent than were conferred by the writing, then as to all persons dealing w'ith such agent, upon the faith of such ap- parent authority, the principal will be bound to the extent of the apparent authority. Blaekmer vs. Coal Co., 187 111. 32; Hartford Ins. Co. vs. Wilcox, 57 HI. 180. The existence of an agency may be established by oral testi- mony of an employee of principal having knowledge of that fact. Eice vs. Int. Bank, 86 111. 136. It is competent to prove by parol the situation of the parties and of the subject matter of a written contract of agency, at time it is made and the circumstances under which it was made, for the purpose of understanding the language employed and the sense in which it is employed, though not for purpose of contradicting or enlarging its terms. Wood vs. Clark, 121 111. 359. So where a written instrument bears the name of but one per- son, presumably it is the undertaking of that person, but it is com- petent to establish by parol that the contract is one of a co-part- nership, and the firm entered into the contract in the name and style of the individual. Dangherty vs. Heckard, 189 111. 239. Even where a written contract is entered into in his own name, it is competent for principal to show by parol that agent was act- ing for him. Barker vs. Garvey, 83 111. 184. (See Ambiguity.) 90 ALIBI ALIBI Defined: Tlie defense of an alibi does not in theory 'deny that the crime was committed, but is designed to prove that the defendant, dur- ing the whole time, was so far from the place where the crime was committed, that he could not have participated in it. People vs. Liikoziis, 242 111. 101; Miller vs. People, 39 111. 458; Ackerson vs. People, 124 111. 563. Burden of Proof: The burden of establishing the defense of an alibi is on the de- fendant, and to maintain it it is incumbent upon him to prove facts and circumstances which, when considered in connection with all the evidence relied upon to establish his guilt of the crime charged, is sufficient to create in the minds of the jury a reason- able doubt of the truth of the charge. Plannegan vs. People, 214 111. 170; Hauser vs. People, 210 111. 253; Carleton vs. People, 150 111. 181; Auueals vs. People, 134 111. 401; Ackerson vs. People, 124 111. 563. Where the people have made out a prima facie case, and the de- fendant relies upon the defense of an alibi, the burden is upon him to prove it. People vs. Lukoszus, 242 111. 101; Ackerson vs. People, 124 111. 563; Hojje vs. People, 117 111. 35; Mullins vs. People, 110 111. 42, Degree of Proof: Must be shown to such a degree of certainty as will, when the whole evidence is considered, create and leave in the minds of the jury a reasonable doubt as to the guilt of defendant. People vs. Lnkozsus, 242 111. 101; Ackerson vs. People, 124 111. 563; Hoge vs. People, 117 111. 35; Mullings vs. People, 110 111. 42. Weight and Sufficiency : — Exact Time: Evidence of absence is competent and material, although it may not cover the exact time, or the whole time of the alleged commission of the crime. Waters vs. People, 172 111. 367. But an instruction that to render evidence of an alibi satis- factory, it should cover the entire time of the transactions so that it would have been impossible for the defendant to have commit- ted the offense is proper. People vs. Prol)st, 237 111. 390; Miller vs. People. 39 111. 457; Cf. Briggs vs. People, 219 111. 330; Creed vs. People, 81 111. 505. An alibi is not a separate defense, and if upon the whole evi- dence including that in relation to the alibi, there is a reasonable dou])t of the guilt of the accused, he should be acquitted. It is only necessary to make such proof as will raise a reasonable doubt of guilt. Briggs vs. People, 219 111. 330; Carlton vs. People, 150 111. ISl; Ackerson vs. People, 124 111. 563; Hoge vs. People, 117 111. 35; Mullins vs. People, 110 111. 42; Miller vs. People, 39 111. 457; IIo])ps vs. People, 31 111. 385. Presumption : Where an alibi sought to be shown depends vitallv upon the accuracy and agreement of different time pieces, so that a disa- greement of ten or fifteen minutes would be fatal to its establish- ALIENATING AFFECTIONS "im ment, and the apparent conflict between the witnesses would dis- appear, it is more reasonable to suppose that there was a slight dis- crepancy in the time pieces than tliat one or the other of the two sets of witnesses swore to an untruth. Painter vs. People, 147 111. 444. Legitimate Defense: An alibi is a defense as legitimate as any other, and attempting to prove it and failing so to do, should have no greater weight to convince a jury of the guilt of the accused, than the failure to prove any other important item of defense. ]\riller vs. People, 39 111. 457. Rebuttal : — Hotel Register: Counsel for People may exhibit to the jury the hotel register relied upon by the defendant in attempting an alibi, and comment upon the clean appearance of the book and the fact that all names were in the same handwriting and appeared to be made at the same time, as tending to show it was not a register in dailv and actual use. ' Haviser vs. People, 210 111. 253. — Impeachment: Defendant called as witness a former clerk of a hotel, and proved by him he saw defendant at hotel on morn- ing after larceny. People then introduced evidence to show that witness was discharged as clerk a day or so before time spoken of, for drunkenness. This was not done to contradict w^itness by show- ing his absence, but it was evident purpose thereby to impeach him; the court erred in admitting the evidence, as witness could not be so impeached. If his reputation for truth and veracity was bad, that fact should have been proven. Why he was discharged was immaterial. Hoge vs. People, 117 111. 35. ALIENATING AFFECTIONS See IMarriage, Criminal Conversation, Husband and Wife. Right of Action: Married woman may maintain. Betser vs. Betser, 186 111. 537; Smith vs. Gillap, 123 App. 121; Bassett vs. Bassett, 20 App. 543. Matters to be Proven: To recover, it must be established that alienation arose, at least, in part from fault or by reason of efforts to that end, of defendant. It is not enough to prove, in such case, the fact of plaintiff's husband being infatuated M'ith defendant, and that in consequence thereof his affections for his wife had grown cold, but it is necessary to show that the person who is charged with wrong was the blamable party and that by some acts or words had wil- fully and wrongfully sought and succeeded in alienating the af- fections. Smith vs. Gillap, 123 App. 121. In action against parent, inquiry is whether the actions were inspired by parental regard of welfare of child. Hilling vs. Huling, 32 App. 519. 92 ALLEGATIONS AND PROOFS Presumptions : Bad or unworthy motives cannot be presumed in action against parent. Huling vs. Huling, 32 App. 519. Conversations : It is improper, in action by wife against the parents of her hus- band for recovery of damages alleged to have arisen through the alienation of his affections for her by reason of acts and advice on their part, to allow her to testify to conversations between herself and husband touching their living together and the attitude of the parents towards them. Hilling vs. Huling, 32 App. 519. Nor, in action by husband, is it competent for him to state con- versations with the wife in effort to induce reconciliation. Miller vs. KnoUenberg, 161 App. 107. Character : The general reputation of defendant for chastity is not competent. Golden vs. Gartelman, 159 App. 338. Damages : — Gist of Action: Not the loss of assistance, but the loss of con- sortium of the husband, under which term are included the per- son's affections, society and aid. Betser vs. Betser, 186 111. 537. — Mitigation: A written agreement between husband and wife, wherein she has accepted valuable property is no defense. Betser vs. Betser, 87 App. 399. Defendant offered to prove that previous to the marriage, the husband (his son) never kept company with plaintiff, nor paid her any such attention as indicated any love for her, or any mar- riage contract between them, and that at the time he was married he was in such a state of intoxication as not to know what he was about, and so continued until he had been taken home by defend- ant and cared for until he was sober, held, admissible in mitigation of damages. Bassett vs. Bassett, 20 App. 543. Marriage itself cannot be considered as conclusive proof of that mutual regard and love which should be entertained by husband and wife. Bassett vs. Bassett, 20 App. 543. — Divorce Decree: Decree of divorce granted at instance of wife tends to show the affections were alienated by plaintiff's own conduct. Sackheim vs. Miller, 136 App. 132. ALLEGATIONS AND PROOFS See Answers, Default, Chancery. Must Agree: No facts are properly in issue unless charged in the bill. Kice Co. vs. McJohn, 244 111. 264. ALTERATIONS AND ERASURES 93 And the allegations and proofs must agree. A party can not make one case by his pleading and another by his evidence. Clark vs. Janowski, 255 111. 129; Stearns vs. Gloss, 235 111. 290; Dorn vs. Gender, 171 111. 362; Vennum vs. Vennum, 61 111. 331; Bush vs. Connelly, 33 111. -148; Sehwitters vs. Barnes, 157 App. 381; Burns Lbr. Co. vs. Keynolds, 148 App. 356; Norris vs. War- ner, 59 App. 300. No Allegation: The court will not consider evidence upon a point as to which there is no allegation in the bill. No relief can be granted for matters not charged in the bill even though such matters may be apparent from other parts of the pleading and evidence. C. P. & St. L. R. Co, vs. Jacksonville, 245 111. 155; Schmitt vs. Weber, 239 111. 377; Lange vs. Metzger, 206 111. 457. Matters Not Denied: Material allegations of a bill in chancery not admitted or de- nied by the answer must be proven by the complainant. Schuld vs. Wilson, 225 111. 336; Llewellin vs. Dingee, 165 111. 26; Cotes vs. Eohrbeck, 139 111. 532; Nelson vs. Pinegar, 30 111. 473; XII 111. Notes 415, § 277. Corporate capacity to sue, if not denied by answer, is an excep- tion. Grace vs. Oakland Bldg. Assn., 63 App. 339; Enos vs. Chestnut, 88 111. 590. ALMANACS See Judicial Notice. ALTERATIONS AND ERASURES See Handwriting, Photographs, Denial of Execution, Expert And Opinion. Question of Law and Fact: The question whether there has been an alteration in a contract and the intent with which it has been made, are questions for the jury. Hayes vs. Wagner, 220 111. 256. Whether an alteration has been made is a question of fact for the jury. Catlin Coal Co. vs. Lloyd, 180 111. 398; Tanner vs. Newton, 254 HI. 432; Schwarz vs. Herrenkind, 26 111. 209; Peterson vs. Emery, 154 App. 294; Eeed vs. Kemp, 16 HI. 445. Admissibility of Instruments: When instrument contains apparent alteration, and same changes the legal effect, and its operation and the liability of the parties thereto, and is of such a character as to amount to suspicious cir- cumstances, instrument should not be admitted in evidence with- out explanation. Landt vs. McCullough, 206 111. 214; Merritt vs. Boyden, 191 HI. 136; Catlin Coal Co. vs. Lloyd, 180 111. 398; Gage vs. City of Chicago, 225 111. 218. 94 ALTERATIONS AND ERASURES Instruments executed in duplicate are both primary evidence, and if one of the duplicates is unaltered, there is still original primary evidence of the contract, although the other duplicate has been altered. The latter may also be admitted to show ail the facts in relation to its execution, but not as basis for recovery. Hayes vs. Wagner, 220 111. 256. Uncontradicted evidence that the erasures, alterations and inter- lineations in a lease were there when the lease was executed by the parties, and that the lease was then in the same condition when it was otfered in evidence as when it was signed by the parties, and that the assignees under the lease were given a copy thereof and had paid rent under the lease, justifies the court in admitting the lease in evidence in action against assignors for rent. Landt vs. McCuUough, 218 111. 607. An alteration of a written agreement, after its execution, by a stranger, and with no fraudulent purpose or intent, will not render the agreement inadmissible in evidence. Coiidict vs. Flower, 106 111. 105; Bledsoe vs. Graves, 5 111. 383; Vogle \s. Kipper, 34 111. 100; Soaps vs. Eichberg, 42 App, 375. ., Interlineations in an official certificate, if satisfactorily explained, will not affect the competency of such certificate. People vs. Foreman, 165 App. 13. Erasures and interlineations appearing in a certified copy of a record of an instrument, form no sufficient reason for excluding the copy, since they may have been made by the copyist to conform to the record. It seems that erasures and interlineations in a certi- fied copy in no way impairing the meaning of the instrument, will not warrant its exclusion from evidence, even if the Avord erased appear on original instrument on record. Holbrook vs. Micholas, 36 111. 161. A copy of a special assessment ordinance, properly certified to be a true copy of the original, made upon a blank from which, ap- parently, the printed matter not corresponding with the original ordinance, had been stricken out and other provisions inserted with pen and ink, and making an ordinance harmonious throughout, is properly admitted in evidence without extrinsic explanation of the changes. Gage vs. City of Chicago, 225 111. 218; Gage vs. City of Chicago, 223 111. 602. Presumption : — Fact of Alteration: The law indulges no presumption as to condition of an instrument when it is executed, or whether there has been a subsequent change. The appearance and circumstances might be such that considering it as a question of fact would re- quire an explanation, and without it an inference against the in- strument might be justified, but the law raises no presumption on the subject. Webster vs. Yorty, 194 111. 408; Gage vs. City of Chicago, 225 111. 218; Grand Lodge vs. Young, 123 App. 628. There is no presumption of law arising upon the bare inspec- tion of an instrument whether it has been, and if so, when, altered from the true contract ; such appearance may throw suspicion and ALTERATIONS AND ERASURES 95 distrust upon the instrument, but it is a question of fact and not of law. Eeed vs. Kemp, 16 111. 445; Millikeu vs. Marliu, GG 111. 13. — As to Validity of Lisirumcnt: The mere fact of an interlinea- tion or an erasure appearing in an instrument does not, of itself, raise any presumption of law for or against the validity of the writing, but the question when, by whom, and witli what intent it was made, is one of fact to be su))mitted to the jury. Catlin Coal Co. vs. Lloyd, 180 111. 398; Walters vs. Short, 10 111. 252; Gillett vs. Sweat, 6 111. 475. — Time of Alterations: The law indulges no presumption as to when a change in a written instrument was made. Gage vs. City of Chicago, 225 111. 218; Milliken vs. Marlin, 66 111. 13; DeLong vs. Soucie, 45 App. 234. In absence of all evidence, either from the appearance of the instrument itself, or otherwise, to show when the alteration was made, it must be presumed to have been subsecpient to the execu- tion and deliverv of the instrument. Walters vs. Short, 10 111. 252. An alteration apparent upon the face of a note must be pre- sumed prima facie to have been made after instrument was exe- cuted. McAllister vs. Avery, 17 App. 568. Presumption is that alteration was made after instrument was executed. Sisson vs. Pearson, 44 App. 81; ]\lontag vs. Lynn, 23 111. 551; Hodge vs. Oilman, 20 111. 437. See Pyle vs. Oustatt, 92 111. 209; XI 111. Notes 95, § 22. (See Presumptions. Decisions not in harmony.) Burden of Proof: — In General: After proof tending to show alteration, burden of proof upon whole case is then upon party offering instrument to show that no such alteration was made or that it was made with consent of defendants, or that they ratified same. Merritt vs. Dewey, 218 111. 599; Catliu Coal Co. vs. Lloyd, 180 111. 398; Eggman vs. Nutter, 155 App. 390; Dewey vs. Merritt, 106 App. 156. If a document produced in court appears to have been niaterially altered, and under circumstances which may be suspicious, the burden of explaining its appearance rests upon party offering it. Landt vs. MeCullough, 206 111. 214; Hodge vs. Oilman, 20 111. 437; Gillett vs. Sweat, 6 111. 475. It is incumbent upon party offering an instrument which ap- pears to have been altered, to explain such alteration, and in ab- sence of all evidence, either from appearance of instrument itself, or otherwise, to show when the alteration was made, it must be pre- sumed to have been made subsequent to execution and delivery of instrument. Walters vs. Short, 10 111. 252; Hodge vs. Gilman, 20 111. 43 < ; Mon- tage vs. Linn, 23 111. 551; Pyle vs. Oustatt, 92 111. 207; McAllister vs. Avery, 17 App. 568. But see Milliken vs. Marlin, 66 111. 13; Swarz vs.'Herrenkind, 26 111. 209; DeLong vs. Soucie, 45 App. 234. Party offering instrument, where alteration is material, has burden of explaining such alteration before the instrument will be admitted in evidence. Such explanation may satisfaetordy ap- pear from the instrument itself, or by extrinsic evidence. Gage vs. City of Chicago, 225 111. 218; Hodge vs. Gilman, 20 111. 437. 96 ALTERATIONS AND ERASURES The alteration or interlineation must be explained by party claiming benefit of the paper, and if it is suspicious in appearance and satisfactory explanation is not made, the proper conclusion is a conclusion of fact against the instrument. Catlin Coal Co. vs. Lloyd, 180 111. 398. The burden is on the party offering the instrument, to prove the alterations apparent on same were honestly and properly made. Pyle vs. Oustatt, 92 111. 209. — Notes: Burden of proving apparent alteration of note was made prior to its execution rests on holder. McAllister vs. Avery, 17 App. 568. Wliere the execution of a promissory note is put in issue by plea verified by affidavit, and defendant admits name signed thereto is his signature, it is not incumbent upon plaintiff to show note has not been altered, wliere no alteration is apparent on its face, to admit same in evidence, but defendant must show that fact in de- fense. Lowman vs. Aubrey, 72 111. 619; Merritt vs. Dewey, 218 111. 599. Admissibility of Evidence to Show or Explain Alteration : — Parol Evidence: Explanation may satisfactorily appear from instrument itself, or may be made by extrinsic evidence. Gage vs. City of Chicago, 225 111. 218; People vs. Foreman, 165 App. 13 ; Tanner vs. Newton, 254 111. 432. Where a written instrument offered in evidence exhibits an era- sure of a certain part, parol evidence is admissible to show why such erasure was made. Johnson vs. Pollock, 58 111. 181; Kelly vs. Trumble, 74 111. 428. — Opinion Evidence: Expert's opinion is admissible to show that instrument was altered after filing. Eass vs. Sebastian, 160 111. 602. — Photographs: An enlarged photograph of a document, al- leged to have been altered, is admissible, when so enlarged as to il- lustrate testimony of witness. In such case, photograph is not merely secondary evidence. Howard vs. 111. Bank, 189 111. 568. — Comparison of Instruments: Alterations in a deed executed to correct certain defects in former quit-claim deed, which consist of erasure of certain words in warranty form used in drawing seC' ond deed, in order to make same conform to original quit-claim deed, are sufficiently explained by introducing the deeds in evi- dence and comparing them. Wilder vs. A. D. & E. Elec. Co., 216 111. 493. — Copies: Where a written contract, when produced, appears to have been changed, a copy of the same is admissible in evidence for purpose of showing that change was made before its execution.. Lombard vs. Johnson, 76 HI. 599. Or a duplicate is admissible. Hayes vs. Wagner, 220 111. 256. And a certified copy of recorded instrument. Kimball vs. Piper, 111 App. 82. — Affidavit: Affidavits may be read or proof heard to show that words have been improperly stricken from a judgment, but not to AMBIGUITY 97 falsify a record by showing tlial an alteration correcting it was im- properly made. " Walker vs. Armour, 2l2 III. 658. — Pleading: Where the general issue is filed Avith a notice of special matter, if such special matter goes to the alteration or de- nial of the execution of the instrument sued on, the evidence offered to establish this fact will be inadmissible. Such a defense must be by special plea verified. Dewey vs. Warriner, 71 111, 198; Hunt vs. Weir, 29 111. 83; Eichard- sou vs. Mather, 178 111. 449. Witnesses : Where party defends as heir, adverse party is incompetent to testify in explanation of apparent alteration in deed under which both claim. Pyle vs. Oiistatt, 92 111. 209. A judge or clerk of the court making the minutes of an order, is a competent witness to prove or disprove same, whenever the genuineness is questioned. It may be proven that what purports to be a minute of a judge or clerk in a case is not, in fact, his min- utes, and upon same principle, it can be proven by him that marks of cancellation or erasure were not made by him. Gillett vs. Booth, 95 111. 183. Erasures and alterations appearing on the face of a tax receipt may be shown to have been made by the person giving it, and un- der circumstances which rebut any allegation of fraud on the part of the holder. Elston vs. Kennicott, 46 111. 187; Babcock vs. McFarland, 43 111. 381. Authority to Make : Authority to alter cannot be proven by statements of agent making the alteration. Leonard vs. Heavner, 171 App. 188. AMBIGUITY See PAROii, Identity. ADMISSIBILITY OF PAROL EVIDENCE: Contracts : — In General: If the terms used by the parties to a contract are ambiguous in meaning, and if at the time the contract is being made particular words are agreed upon as having a particular meaning, then parol evidence is admissible to show the true intent and undertaking of the parties, and for suck purposes such agree- ment is competent evidence. S F. Coal Co. vs. Eldridge Coal Co., 170 App. 268; Evaus vs. Eoss Cons. Co., 142 App. 375; Street vs. Chi. W. Co., 157 ill 605. Where there is no misunderstanding between the parties, about the terms of a contract, and no dispute between them as to the meaning of same, parol evidence as to alleged ambiguities is in- admissible. Pinch vs. Zenith Furnace Co., 245 111. 586. Ev. — 7 98 AMBIGUITY Unambiguous writing cannot be altered, varied, modified or ex- plained by parol. Schneider vs. Sulzer, 212 111. 87; Town of Kane vs. Farrelly, 192 111. 521; Com. Mut. Ace. Assn. vs. Bates, 176 111. 194; Hamilton vs. Harvey, 121 111. 469; Panton vs. Tefift, 22 111. 367; Griffith vs. Fuhrey, 30 111. 251; Summerville vs. Klein, 140 App. 39; XII 111. Notes 514. § 319. A written contract which purports to be a complete and final stateiuent of entire transaction is the only evidence of its terms and conditions. Osgood vs. Skinner, 211 111. 229; Cook vs. Whitney, 16 111. 480; Lane vs. Sharp, 4 111. 566; Petrea vs. Iledeger, 173 App. 203. And is the only legitimate evidence of extent of agent's au- thority, and the question whether it is within the written authority conferred, is one of law. Oliver vs. Sattler, 233 111. 536. And construction is for the court. Danziger vs. Pittsfield Shoe Co., 204 111. 145; Spence vs. Hndkins, 208^111. 304. Where the meaning of a contract is plain, another meaning can- not be added l)y implication or intendment. Diederiek vs. Eose, 228 111. 610. And is not subject to construction where there is no ambiguity in the language used. Brenzel vs. Kusehner, 128 App. 136; Clark vs. Mallory, 185 111. 227; Strauss vs. Cohen Bros., 169 App. 337. And court may not read into a written contract a provision which parties have failed to insert, simply because, from one point of view% it would have been reasonable or desirable. Burt vs. Garden City Sand Co., 237 111. 473. — Parties and Subject flatter: A written contract may speak for itself as to terms, conditions and limitations of the agreement, but as to the parties and sul)ject matter of the contract, extrinsic evidence is always competent, if necessary, for their identification, without reference to tlie question of latent or patent ambiguity. Cum])erledge vs. Brooks, 235 111. 249; Bulkley vs. Devine, 127 111. 406. It is a rule of uniform application that parol or other extrinsic evidence may be received for the purpose of identifying the prop- erty sold. This evidence does not infringe upon the rule that a written agreement cannot be contradicted, enlarged or varied by parol. Marshall vs. Gridley, 46 111. 247. Parol testimony is admissible to apply written agreement to the subject matter to which it relates, as, to show that the property mentioned in a contract was the same as that for which a suit was prosecuted. Eeed vs. Ellis, 68 111. 206. Where there is a misnomer or variance from the legal name of a corporation extrinsic evidence is admissible to identify and ex- plain the variance. Mall. Iron Eange Co. vs. Pusey, 244 111. 184. When it is doubtful from the instrument itself, whether the con- AMBIGUITY 99 tract was intended to bind the principal or the agent, extrinsic evi- dence may be received to ascertain the intention. O. & M. Ky. Co. vs. Middleton, 20 111. 629; Braim vs. Hess, 187 111. 283. But not if the contract clearly binds the agent. Vail vs. Mut. Life Ins. Co., 192 111. 567, Two contracts of the same date, for improving a building, one signed "Nebauer Decorating Company, D. E. Livermore, Supt. of Contracts," and the other, "D, E. Livermore, Mfg. Agent & Supt. of Contracts." Held, sufficient uncertainty upon the face of the transaction to admit parol evidence as to who was intended to be bound as principal by the latter contract, and if the owner of the building treated the Nebauer Decorating Company as principal, the burden of proof is upon him. Keeley Brew. Co. vs. Decorating Co., 194 111. 580. — Extrinsic Rendering Uncertain: When a contract on its face appears to be explicit and certain, but is rendered uncertain by extrinsic evidence, it may be explained by the same class of evi- dence by which the uncertainty is created. Haraian vs. People, 214 111. 454; Marshall vs. Gridley, 46 111. 247; Halliday vs. Hess, 147 111. 588; Doyle vs. Teas, 5 HI. 202. — Terms of Trade and Art: If such terms have a well defined signification, it is not competent to change that meaning by evi- dence ; but if not well-defined, a local meaning may be proven. Galena Ins. Co, vs. Kupfer, 28 111. 338; Lord vs. Owen, 35 App. 382. The testimony of witnesses is admissible to explain not only technical words or art or science, but words or phrases having a local or special meaning in a particular calling, trade, business or profession. Such evidence does not contradict or change the writ- ten instrument. The presumption is that such terms Avere used according to their understood meaning in the place or business with reference to which the contract is made, and evidence as to such meaning is the only method of ascertaining the intention of the parties in entering into the agreement. Steidtman vs. Lay Co., 234 111. 84; Turner vs. Osgood Art Co., 223 111. 629; Eeed vs. Hobbs, 3 111. 297; Elgin vs. Joslyn, 36 App. 301; Chi. Port. Cement Co, vs. Hofnian, 168 App. 71. Such general custom or technical meaning of words may be proven without being specially pleaded. Steidtmann vs. Lay Co., 234 111. 84; Stewart vs. Smith, 28 111. 397. — Usage: Evidence of a usage may be admissible to add to or explain the terms of a written contract, but not to vary or con- tradict such terms, either expressly or by implication. Turner vs. Osgood Art Co., 223 111. 629; W. V. Cold Storage Co, vs. Produce Co., 197 111. 457; Leavitt vs. Kennicott, 157 111. 235; Gilbert vs. McGinnis, 114 111. 28. — Construction by Parties: AVhen the terms of a written agree- ment are in any respect uncertain or doubtful, and the parties, by their own conduct, have placed a construction upon them, which is reasonable, such construction will be adopted by the court, evi- 100 AMBIGUITY dence of acts showing practical construction of the instrument by the parties themselves is admissible. McLean Coal Co. vs. Bloomington, 234 111. 90; Walker vs. I. C. E. E. Co., 215 ill. ClU; Slack vs. Kuox, 213 111. 190; :\lerrifield vs. Canal Comrs., 212 ill. 456; Whalen vs. Stephens, 193 111. 121; Carroll vs. Drury, 170 111. 571; Ilarter vs. Morris, 124 App. 377; Gronimett vs. Sawyer, 133 App. 249; Borustein vs. Berliner, 170 App. 519. But will adopt such construction only wlieii it is reasonable. Allison vs. Taylor, 133 App. 70 ; O 'Conner vs. Harrison, 132 App. 264. — Previous Course of Dealing and Contracts: A previous course of dealing between the same parties, under similar contract, may be proven in determining the intention of the parties as to the con- tract in question, and the manner in which they acted under simi- lar contracts should be considered. Janiieson vs. Wallace, 167 111. 388; Carroll vs. Drury, 170 111. 571. — Surrounding Circumstances: In construing a contract un- certain in meaning, the court will look at the surrounding circum- stances in order to understand the language in the sense intended by the parties. Kelsey vs. Clausen, 257 111. 402; Close vs. Brown, 230 111. 228; Car- roll vs. Drury, 170 111. 571; Wilson vs. Eutz, 119 111. 379; Turpin vs. B. & O. Ey. Co., 105 111. 11; Barrett vs. Stowe, 15 111. 423; Calkins vs. Pease, 125 App. 270. And circumstances surrounding the execution of a contract and those showing construction of the parties are competent in evi- dence to aid in interpreting it. Warfield vs. "Williamson, 233 111. 487; Cantrell Coal Co. vs. Level, 139 App. 104. Circumstances surrounding execution of contract are questions of fact. Amer. Ins. Co. vs. Myers, 118 App. 484. Contracts of Conveyance: See Identity, Description. Deeds : — Legal Effect: Language in deed having settled legal mean- ing, cannot be changed, explained or added to by parol evidence. Mortan-vs. Babb, 251 111. 488. — Patent Amhigwity: A patent ambiguity in a deed is not capa- ble of explanation by extrinsic evidence. While a latent ambiguity may be so explained, it is because it is made to appear by evidence outside of the instrument, yet a patent ambiguity is not susceptible of any other explanation than that furnished by the instrument itself." Panton vs. Tefft, 22 111. 367. — Description: Parol evidence is always admissible to explain a latent am])iguity, showing what property was intended to be conveyed. Evans vs. Gerry, 174 111. 595; Bradisli vs. Yocum, 130 111. 386; Sharp vs. Thompson, 100 111. 447; Fisher vs. Quackenbush, 83 111. 310; Colcord vs. Alexander, 67 111. 581: Billinsrs vs. Kankakee Coal Co., 67 111. 489; Bybee vs. Hageman, C^Ci 111. 519; XII 111. Notes 520, §359. If the description in the deed is uncertain, parol evidence of AMBIGUITY 101 any extrinsic circumstances is admissible to identify and establish the objects of the call in the deed. Koelliug vs. People, 196 111. 353; Kleiner vs. Bowen, 166 111 537; Masou vs. Merrill, 129 111. 5U3; Taylor vs. Wright, 121 111. 455. But if no uncertainty or ambiguity exists, parol evidence of the acts and conversations of grantor and grantee, prior to execution of deed, cannot ])e received to show description in deed is wrong. Duggan vs. Uppendahl, 197 111. 179. Where there is a latent ambiguity in the description in a con- veyance, as an omission to refer to any meridian, the defect may be obviated by proof. Such a deed is not void for uncertainty. Daugherty vs. Purely, 18 111. 206, A latent ambiguity in the description of land in a conveyance, as where, by omitting to state the number of township north of the base line, there are several parcels which will answer the de- scription, may be explained by evidence ; and is so explained when it is shown which of the several parcels the grantor claimed. Clark vs. Powers, 45 111. 284. In ejectment for a tract of land claimed to have been conveyed by defendants to plaintiffs, where the deed is subject to a latent ambiguity, the burden of proof will rest upon plaintiff to show such tract was a part of the land intended to be conveyed to him. Bradish vs. Yocum, 130 111. 386. Where a deed described the land as being in a certain section, without showing in what township that section is located, and it is shown there are several sections in the county of that number, the deed, taken in connection with such showing, will reveal a latent ambiguity, and parol evidence will be admissible to show in what township such section is located. Halliday vs. Hess, 147 111. 588; Billings vs. Kankakee Coal Co., 67 111. 489. The location of a town lot may be fixed by a witness from com- mon repute, irrespective of any plat. Judson vs. Glos, 249 111. 82; Holbrook vs. Debo, 99 111. 372. Where the title to a tract of land, out of which a lot in contro- versy is carved, is established, the identity of the premises may be shown by other proof, without the introduction of a map or plat of the survey of which the lot forms a part. Smith vs. Stevens, 82 111. 554. And the rule admitting evidence of a practical construction given by the parties to a writing, extends to evidence of such acts in order to determine the ambiguous terms of a conveyance as to the estate conveyed. Parnam vs. Thompkins, 171 111. 519. — Parties: Where conveyance of land is made to one bearing same name as prior owner and grantor thereof, in absence of con- trary, he will be presumed to be same party. Brown vs. Metz, 33 111. 339. Wliere deed is to one of two persons of same name, being father and son, it devolves upon one claiming under son to overcome or rebut presumption of law that grant was made to father, and then burden is shifted to party claiming under father, and he must produce evidence sufficient to overcome, or at least, equal in probative force the case of adverse party. 102 AMBIGUITY Where a deed is made to one of two persons of same name, the one the father, and the other the son, both living together and oc- cupying premises conveyed, the character and circumstances of the occupancy are admissible on question whether deed was to the father or the son. Graves vs. Colwell, 90 111. 612. It may be presumed that parties to conveyances are same persons where initials of christian names are used, and they are the initials of Christian names given in full in other deeds of same premises, the surnames being the same. Ogden vs. Beinis, 125 111. 105; Skinner vs. Fulton, 39 111. 484. Wills: — In General: Parol testimony is inadmissible to explain a patent ambiguity in a will. Engelthaler vs. Engeltlialer, 196 111. 230. The rule is that while surrounding facts and circumstances may be proven to explain a latent ambiguity which is not found upon the face of the instrument itself, extrinsic evidence cannot be ad- mitted to explain an ambiguity which appears upon the face of the will, or supply its omission and deficiencies, since that would be to make a will for testator. Carston vs. Carston, 254 111. 480. Where an ambiguity in a will is not latent, extrinsic evidence is inadmissible to explain will or show intention of testator. Haywood vs. Loper, 147 111. 41. Parol evidence is admissible in explanation of a latent ambiguity that arises where writing, on its face, appears clear and unam- biguous, but the meaning is rendered uncertain by extrinsic evi- dence, or from matters of which the court will take judicial notice, and where uncertainty is so created, it may be removed by extrin- sic evidence. Graves vs. Rose, 246 111. 76. Where the devise of "the homestead" is followed by a description which is incomplete but not incorrect, parol testimony is compe- tent to prove the legal description of the homestead premises. Morall vs. Morall, 236 111. 640. Where the description of land devised in a will is apparently unambiguous, but the township, range, county and state are not specified, the court will take judicial notice, from its knov.ledge of governmental surveys, that the apparently unambiguous de- scription is, in fact, uncertain, and may permit the township, county, range and state to be supplied by extrinsic evidence. Graves vs. Rose, 246 111. 76. Reference to number of acres cannot control plain words of a will. Graves vs. Rose, 246 111. 76; Williams vs. Williams, 1S9 111. 500; Bingel vs. Volz, 142 111. 214; Bishop vs. Morgan, 82 111. 351. When there is a latent ambiguity in description of object or sub- ject of the gift, and such ambiguity can be removed by rejecting false words, leaving a complete intelligible description, it is the duty of the courts to so do, as where there are two descriptions, one good and the other bad, the latter may be rejected. Vestal vs. Garrett, 197 111. 398; Collins vs. Capps, 235 111. 560; Gano vs. Gano, 239 111. 539; Emmert vs. Hays, 89 111. 11. ANCIENT DOCUMENTS 103 When there is a gift to a society for charity without clearly de- scribing the particular society, and there are two or more societies carrying on the same charity, a latent ambiguity exists and extrin- sic evidence is admissible for the purpose of determining the society or institution intended by the donor. The rule also applies where there is a mistake in the name or description of the legatee or de- visee whether an individual or a corporation. Hitchcock vs. Bd. of Home Missions, 259 HI. 288. (See Wills.) Letters : See Letters-Intention. ANCIENT DOCUMENTS Definition : Deeds more than thirty years old at the date of the trial are "an- cient, ' ' although less than thirty years old at the date of the com- mencement of the suit. Renter vs. Stuckart, 181 HI. 529; XII 111. Notes 511, §292. Purpose of Rule Relating to : The rule relating to ancient documents which, under some cir- cumstances, will dispense with proof of the execution of a docu- ment which appears to be at least thirty years old, cannot be in- voked for any other purpose than to relieve a party from the bur- den otherwise imposed, of proving the due execution of the in- strument. Koch vs. Streuter, 232 111. 594. Proof of Execution: — Burden of Proof: A party producing such papers must do everything in his power to raise the presumption of their genu- ineness. Smith vs. Rankin, 20 111. 15. — Necessity of Showing: An instrument is admissible as an ancient deed, without proof of its execution, when it comes from the custody of the grantee's wife, who held possession under it for a series of years and paid taxes assessed on the property in the grantee's name, and deed bears an indorsement showing the record- ing of the deed at a time more than thirty years before the trial. Renter vs. Stuckart, 181 111. 529. Deeds more than thirty years old are called ancient deeds, and they are admitted in evidence without proof of execution ; but be- fore this can be done, it must appear that the instrument comes from such custody as to show a reasonable presumption of its gen- uineness, and facts and circumstances must be proven which will establish the fact that the instrument has been in existence the length of time indicated by its date. Whitman vs. Hcnneberry, 73 111. 109. A deed which has been a matter of record for fifty-nine years is an ancient deed, and in absence of any fraud or suspicious cir- cumstances, it is not necessary to show proof of execution. Stafford vs. Goldring, 197 111. 156. 104 ANCIENT DOCUMENTS A deed may be admitted without proof, as an ancient document, where, upon its face, it appears to have been executed more than thirty years since, and where it comes from the proper custodian of a genuine instrument, such deed proves itself. Buc'klen vs. Hasterlick, 51 App. 132. Deeds not acknowh^lged according to law, were admitted in evidence on behalf of plaintiff in ejectment, as ancient deeds, on proof that they had actually been recorded in the proper county for twenty-nine years before the commencement of the suit in which they were received, and they having been shown to have been in possession of party in possession of the land before the plaintiff, and to have remained with him until his death, and it being shown one of the deeds had been recorded for more than forty years be- fore suit was brought: Held, in absence of evidence of fraud or suspicious circumstances, this was satisfactory proof that the deeds had been in existence for thirty years, and entitled them to be read in evidence as ancient deeds. Quinn vs. Eagleson, 108 111. 248. — Acknowledgment: A deed which has been of record more than thirty years is an ancient deed, and a certified copy thereof is admissible in evidence though the deed was not acknowledged as required by law in force wdien it w^as executed, Bradley vs. Lightcap, 201 111. 511. Under act of 1851, a deed acknowledged prior to such act, be- fore a justice of the peace in a county other than that where the land lies, and recorded in the county where such land is situ- ated, is valid although no certificate of magistracy is attached. Stafford vs. Goldring, 197 111. 156. — Subscribing Witness: If living and in power of party to produce, should be offered. Smith vs. Eankin, 20 111. 15. — Power of Attorney: The existence of a valid power of attor- ney will be presumed in favor of an ancient deed which purports to be executed by an attorney in fact. Eeuter vs. Stuckart, 181 111. 529; Cf. Fell vs. Young, 63 111. 106. A conveyance, though over thirty years old, cannot be admitted as an ancient deed when purporting to be executed by one acting in a fiduciary character, in absence of proof of his authority to make the deed. It is well settled that if a deed purports to have been executed under a power, and is sought to be used as evidence, the power must be shown. Fell vs. Young, 63 111. 106. Delivery : — Presumption: "While it is true that a deed will be presumed to have been delivered on the day it bears date, yet the presump- tion is not conclusive, but may be overcome by proof. Whitman vs. Henneberry, 73 111. 109. (See Acknowledgments.) Extrinsic in Aid: Memoranda and indorsements upon a deed may be considered as circumstances indicating that it is genuine, where they are of such character as to satisfy a cautious and discriminating mind that they would not have been there had the paper been a forgery ; and if it is established that the deed has been on record for over thirty ANIMALS 105 years, this will be a strong fact in its favor, although it may not have been recorded in the place required by law. Whitninn vs. Heiinebeny, 73 111. 109. A plat bearing the signature of a deceased grantor, found among papers of his deceased grantee, is admissible to show tliat the de- scription in the deed was made with reference to a contemplated widening of one of the boundary streets and not to its then actual width, where a long time has elapsed since the deed was made, and such grantee, during the lifetime of the grantor, had fenced the property in conformity with the plat, which plat was identified by a witness as one seen by him near the time the deed was executed. Prouty vs. Tilden" 1G4 111. 163. Foundation if or Admission: — How Laid: Where a deed was shown to have been in existence for over fifty years, and in the custody of the grantee and his heirs, who were claiming the land under it, and who paid the taxes on it from year to year, and it also appeared that it was recorded fifty years prior, in the proper oifice, it was held that the proof was ample to admit same in evidence as an ancient deed. It is not nec- essary that party claiming under such deed should take actual possession of the land to entitle same to be read in evidence. Whitman vs. Henneberiy, 73 111. 109; Quinn vs. Eagleston, 108 111. 248. ANIMALS See Ov^NERSHiP, Similar Facts, Malicious Mischief. Injuries by Animals: — DoDUstio Animals: The owner of domestic or other animals, not naturally inclined to commit mischief, as dogs, horses, oxen, is not liable for any injury committed by them to the person or personal property of another, unless it can be shown that he pre- viously had notice of the animal's mischievous propensity, or that the injury was attributable to some other neglect on his part, it being, in general, necessary, in action for injury committed by such animals, to allege anjd prove the scienter. Mareau vs. Vanatta, 88 111. 132; Wormley vs. Gregg, 65 111. 251; W. Chi. St. Ej. Co. vs. Walsh, 78 App. 595; Fritschle vs. Clemow, 109 App. 355; Feldman vs. Selig, 110 App. 130; Keightlinger vs. Egau, 65 111. 235 ; S. C, 75 111. 141 ; XI 111. Notes 99, § 15. The natural presumption from the habits of dogs is that they are tame, docile and harmless, both as to persons and property, and the owner of a dog is not liable for damages resulting from the vicious or mischievous acts unless he had knowledge of his mischievous or vicious propensities, and such knowledge must be proven. Domm vs. Hollenbeck, 259 111. 382. — Wikl Animals: The distinction between the liability of owner of animals kept for domestic use or convenience, (animals man- suetae naturae) such as horses, cattle, dogs and the like, and the owner or keeper of wild and savage beasts {ferae naturae) as lions, tigers, bears, etc., is well settled. In respect to the latter class,_the owner is conclusively presumed to have notice that they are vicious 106 ANIMALS and dangerous, and if he neglects to keep them properly secured, he is liable for injuries committed by them, without any proof of his knowledge of their viciousness. While, on the other hand, the owner of animals which, as a species, are domesticated, is not li- able for injuries done by them, unless he is proved to have had notice of the inclination of the particular animal complained of, to commit such injuries, there being no presumption that such ani- mals of that species are vicious or dangerous. W. CM. St. Ky. Co. vs. Walsh, 78 App. 595; Moss vs. Pardridge, 9 App. 490. — Vicious Animals: The very keeping of an animal known to be vicious, likely to attack and injure men, is, of itself, such neg- ligence as will render the keeper liable for injuries done by it. Ahlstraad vs. Bishop, 88 App. 424; Hammond vs. Melton, 42 App. 186, 3 App. 531. The proof may be made by evidence of facts and circumstances from which an inference of knowledge arises, and it is not neces- sary that the owner or keeper knew the dog had committed the same injury. It is sufficient if he know it will be likely to commit an injury similar to the one complained of, but it is not enough to charge him that he might have known of the vicious or mischievous propensities of the dog by the exercise of reasonable care. Nor may scienter be shown by admissions concerning particular attack on which action is based. Domm vs. Hollenbeck, 259 111. 382. It is not necessary to show that the keeper of a dog has allowed him to bite a large number of his neighbors or their animals be- fore he commences to be liable. But it is enough to show that there is within his knowledge a probability that he may do so. If he have reasona])le grounds to suppose the dog may do so, he must restrain him or be liable for the consequences. Flansburg vs. Basin, 3 App. 531; Kolbe vs. Klages, 27 App. 531. But plaintiff' must prove that the owner of the animal had no- tice of the vicious propensity of the animal. Feldman vs. Selig, 110 App. 130; Ward vs. Danzeigen, 111 App. 163; Swanson vs. Miller, 130 App. 208 ; Field vs. Monson, 142 App. 457. And the burden of proof is upon plaintiff. W. Chi. St. Ry. Co. vs. Walsh, 78 App. 595; Breitman vs. Braun, 37 App. 17. Evidence that defendant at times kept his dog chained does not justify inference that he knew the dog to be dangerous or knew he was accustomed to attack and bite mankind. Fritschle vs. Clemow, 109 App. 355. In an action to recover damages resulting from the bite of a dog, the scienter may be established without the necessity, m all ease's, of proving prior injuries by him. Where watch dogs are kept for protection, their dangerous character and knowledge may be inferred from the admitted purpose for which they are kept and the care exercised in their custody. C. & A. R. E. Co. vs. Kuckkuck, 98 App. 252, It is not necessary to prove a want of care in methods of sta- bling or securing or fastening. Ahlstrand vs. Bishop, 88 App. 424; Hammond vs. Melton, 42 App. 186; Stumps vs. Kelley, 22 111. 140. ANIMALS 107 Competent for plaintiff to show by a former owner that the dog was addicted to vicious attacks, although such vicious acts did not come to the defendant's knowledge, there being other proof that he knew the dog was vicious. Johnsou vs. Eckborg, 94 App. 634. The fact that a dog, to the knowledge of its owner, has made vicious attacks upon persons, although without actually biting them, is sufficient to put him upon notice of its vicious propensi- ties. Johnson vs. Eekburg, 94 App. 634. The general reputation of dog for viciousness and the manner in which the public acted towards him is inadmissible. Norris vs. Warner, 59 App. 300. Viciousness towards other dogs is incompetent. Norris vs. Warner, 59 App. 300. So evidence tending to show that defendant's dog, at other times and to other persons than those referred to by plaintilf 's witnesses, was quiet and had never offered to bite, should be refused. Link vs. Scheffel, 32 App. 17. If conclusive proof is made of the propensity of a dog to attack and bite mankind, it is incompetent to show that at some time the dog was quiet and did not manifest a bad disposition; but where evidence is contradictory, the owner may prove, on question of notice, the previous uniform good behavior of the dog and his peaceable and quiet disposition. Domin vs. Hollenbeek, 259 111. 382. Evidence of the conduct of the animal subsequent to injury com- plained of is inadmissible on question of disposition manifested at time of injury. Viciousness sul^sequent to the accident is of no avail to plaintilf, and gentleness after the injury is no shield to defendant. Knickerbocker Co. vs. Dehass, 37 App. 195. In action based upon negligence of defendant's coachman in leaving the horses untied, in consequence of which they escaped from the barn, evidence that they had escaped before when left untied by him is competent. Maxwell vs. Dnrkin, 185 111. 546. The gist of the action is not the manner of keeping the vicious animal, but the keeping him at all with the knowledge of the vicious propensity. Hammond vs. Melton, 42 App. 186; Ahlstrand vs. Bishop, 88 App. 424. — Defenses: There can be no recovery where a person is bit- ten from aggravating an animal and not from its mischievous pro- pensity. Feldman vs. Selig, 110 App. 130; Keightlinger vs. Egan, 65 111. 235. But evidence tending to show that plaintiff at other times and places had teased and worried the animal is inadmissible. Linck vs. Scheffel, 32 App. 17. In the case of domestic animals which are not naturally danger- ous, the public are not bound to exercise care and caution, with- out notice of the dangerous propensity of the particular animal. If a party heedlessly place himself in the way of a vicious dog, with knowledge of its propensity or knowingly brings the injury 108 -ANIMALS upon himself by his own conduct, such facts constitute a good de- fense to action for damages; but it is a defense which depezids upon knowledge, and it is not necessary for plaintiff to aver and prove the exercise of caution. C. & A. Ey. Co. vs. Kuckkuck, 197 111. 3(M. Under a declaration that defendant kept a dog he knew was ac- customed to bite mankind, it is not enough for plaintiff to prove the dog had a savage and ferocious disposition, and defendant knew it ; but he is bound to prove his allegation that the dog was accustomed to attack and bite mankind and that defendant knew it. Fritsehle vs. Clemow, 109 App. 355; Keightlinger vs. Egan, 65 111. 235. Animals Injured or Killed: — Dogs: Where a dog, without any provocation, assails a man upon the puhlic highway and is killed by the man in self-defense, the act of killing is justifiable, although theretofore the dog may not have been regarded as ferocious and may not have been accus- tomed to attack persons. Kej-uolds vs. Phillips, 13 A^Dp. 557. "Where one person kills the dog of another, which has been scared and runs upon his premises, but had done no injury, or was at- tempting to do none, but simply because the party killing it sus- pects the dog previously interrupted his hens' nests, such an act is trespass for which the perpetrator is liable. If the dog be vicious, and the owner had notice of the fact, an action would lie against him for damage done by the dog. But the party injured has no more right to kill the dog than he would have to kill anybody's breachy animal for breaking into his corn. Brent vs. Kimball, 60 111. 211, If the owner of cattle, without fault on his part, is unable to protect them, when thc}^ are not trespassing upon the land of plaintiff, from serious injury from the dog of the latter, it seems he would have the right to kill such dog to protect his stock. Spray vs. Animerman, 66 111. 309. In suit by owner of a dog to recover damages for killing the same, the court instructed the jury that dogs had no established commercial value in that county. Such was not a question of law, but one of fact for the determination of the jury. Spray vs. Animerman, 66 111. 309. In action for killing dog it is competent to show vicious habits. Meneley vs. Carson, 55 App. 74; Eeynolds vs. Phillips, 13 App. 557. — Folds: The owner of crops has no right to wound or kill domestic animals found trespassing upon his premises. This rule applies to fowls as well as to more valuable animals. Eeis vs. Stratton, 23 App. 314. But the owner is liable for damages of trespassing fowls. McPherson vs. James, 69 App. 337. — Race-Horses : Witnesses who were engaged in buying and selling race horses, and who frec^uently had seen the injured horses, before their injury, upon the track and in races, and who knew their speed and quality, may testify as to value of such horses immediately before and after the injury. C. & N. W. Ey. Co. vs. Cal. Stock Farm, 194 111. 9. ANIMALS 109 Evidence as to name of sires of animal and nnborn foal is admis- sible as an element of market valne. O. & M. Ey. Co. vs. Stribliug, 38 App. 17. Diseases of Animals: The qnestion whether the disease called "scab" is contagious among sheep, is question for jury. Mount vs. Hunter, 58 111. 246. In action on case to recover damages for communicating dis- eases to plaintiff's sheep, where defendant proves by witnesses that they had cured sheep of the disease, it is error for court to refuse to allow plaintiff to show, by other witnesses, that they had tried the same prescription, without success. So where defendant introduces testimony that plaintiff's sheep were seen running at large prior to their infection, to induce the belief that they were infected while so running at large, the court should not refuse to allow plaintiff to show that the sheep so seen running at large were not his sheep, "llerriok vs. Gary, 83 111. 85. In action on case for tort committed by defendant's bringing horses known to him to be infected with the glanders, a disease highly infectious, into plaintiff' 's close, whereby plaintiff's horses became infected and died : Held, that the gravamen of the action was not deceit, but the above act described, and therefore, plain- tiff was not bound to prove his averment in his declaration that defendant falsely represented to plaintiff that the horses were sound and in no wise diseased, and plaintiff, relying upon such representations, was induced to permit defendant to enter his close with horses so infected. Hite vs. Blanford, 45 111. 9. Evidence that disease of horses killed was not glanders is com- petent from experts. Pearson vs. Zehr, 138 111. 48. Farmers and other persons who, for many years, have had per- sonal care and management of horses both sick and well, and have had an extensive practical experience with such animals and with some particular disease to which they are subject, and ample op- portunity to observe and know the characteristics and symptoms of such disease, are well qualified to state whether in a particular case such characteristics and symptoms do or do not exist. After de- tailing facts which show they have had a practical experience and personal knowledge in respect thereto, they may give opinion in regard to existence or non-existence of a disease with which ob- servation has made them familiar. Pearson vs. Zehr, 138 111. 48. A jury is warranted in finding that Texas Fever was communi- cated to plaintiff's cattle from infected cars, under evidence that defendant's line extended from Chicago to New Orleans; that the cars had been recently used to carry other cattle; that there had been no Texas Fever for over twenty-five years in the place where the cattle were raised and shipped to; and that, though the cat- tle were kept in a pasture by themselves after unloading, Texas Fever soon broke out among them. I, C. E. K. Co. vs. Harris, 184 111. 57. 110 ANSWERS Wliether disease is eomnmnicated by Texas cattle in any given ease is a fact to be proved ; it is not a conclusion of law from the statute forbidding the importation of such cattle. Davis vs. Walker, 60 111. 452. In such action, it is not necessary to allege the cattle were dis- eased or that defendant knew they were diseased, in order to admit proof of such facts, the statute giving action for dam- ages resulting "in any manner." Sagamon Distilli'ng Co. vs. Young, 77 111. 197. Plaintiff must prove infection was taken from defendant's cat- tle, it is not enough to show it was taken from Texas cattle on the range, Texas cattle other than defendants having been there. Newkirk vs. Milk, 62 111. 172. It is no defense that other cattle, the property of a third person, contributed to the infection. I'razee vs. Milk, 56 111. 435; Newkirk vs. Milk, 62 111. 172. Where the declaration in action for damages for selling hogs afflicted with cholera alleged defendant sold same to plaintitf, knowing they were so afflicted, and defendant knew they had been exposed to that disease and knew they were afflicted, but sold them as sound, the burden of proof is on plaintiff to show the hogs died of cholera, and defendant, at time of the sale, knew they were af- flicted or had been exposed to it. O'Hair vs. Morris, 87 App. 393. In action for damages for violation of act to prevent spread of disease among swine, it is not necessary to allege and prove that defendant had been convicted in a criminal prosecution for viola- tion of the act. Conrad vs. Crowdson, 75 App. 614. ANSWERS See Chancery, Former PiiEADiNGS. Answer Under Oath: — In General: A sworn answer must be overcome by two wit- nesses or other equivalent testimony. Fish vs Fish, 235 111. 396; Mey vs. Gulliman, 105 111. 272; Stevenson vs. Mathers, 67 111. 123; Trout vs. Emmons, 29 111. 433; XII 111. Notes 417, § 313. A sworn answer in a burnt records proceeding is not evidence as in ordinary chancery proceedings, and has no greater weight as evidence than the petition. Miller vs. Stalker, 158 HI. 514. The evidence of one witness is not sufficient to overcome the sworn answer of the defendant in chancery. Dunlop vs. Wilson, 32 111. 517; Barton vs. Moss, 32 111. 50; Maple vs. Seott, 41 111. 60; Walton vs. Walton, 70 111. 142; O'Brien vs. Frey, 82 111. 274; Mey vs. Gulliman, 105 111. 272; Ware vs. Sals- bury,' 80 App. 485. AVhen the complainant requires an answer under oath, such an- swer can only be overcome by the evidence of two witnesses or the testimony of one and circumstances equal to that of another. Merchants Bank vs. Lyon, 185 111. 343; Blow vs. Gage, 44 111. 208; Wildey vs. Webster, 42 111. 108. ANSWERS 111 Instead of the requirement that there be two witnesses to over- come the sworn answer, it is sufficient if it be opposed to one wit- ness and strong corroborating circumstances. Salsbury vs. Ware, 183 111. 505; Fish vs. Stubbings, 65 111. 492; Myers vs. Kinzie, 26 111. 36. Where, upon a bill to redeem from an absolute deed alleged to be a mortgage, the allegation that the deed and bond to reconvey upon payment of a certain sum, within a given time, constituted a mortgage, was denied by a sworn answer, it was held that the evidence of the scrivener who drew the papers, that the grantor was embarrassed, and that the grantee advanced the money to re- lieve him from his pecuniary necessities, and that, if the money was refunded within the stated time, the grantee was to reconvey the land, together with the evidence afforded by the papers them- selves, was sufficient to overcome the sworn answer. Preschbaker vs. Feaman, 32 111. 476. — Dismissal of Bill: If a complainant, after the coming in of sworn answers, dismisses his bill, and files another setting up sub- stantially the same grounds for relief as in the former one but waiving answer under oath, such sworn answers filed in the prior suit will remain evidence, and complainant can have no decree until such sworn answers are overcome by a preponderance of the other proofs. Mey vs. Gulliman, 105 111. 272. A sworn answer must be taken as true unless overcome by the testimony. Where such answer sets up a material fact responsive to the bill, which is denied by two witnesses and is sustained by the testimony of the defendant answering, and another defendant, they all being equally credible, it cannot be said the answer is overcome. Hurd vs. Asehernian, 117 111. 501. — Two Defendants: AVhere a bill of complaint against two de- fendants called for answers under oath, each answer must be over- come by at least two witnesses or what is equivalent to the testi- mony of two witnesses. Heeren vs. Kitson, 28 App. 259; Wynhoop vs. Cowing, 21 111. 570. — Information and Belief: It is only when the defendant states facts within his knowledge that his answer has to be overcome by evidence equivalent to the testimony of two witnesses. Atkinson vs. Foster, 134 111. 472; Cunningham vs. Ferry, 74 111. 426; Fryrear vs. Lawrence, 10 111. 325. — -Matters Not Responsive: It is only where defendant states facts within his knowledge that his sworn answer must be over- come by evidence equivalent to two witnesses ; and new matter set forth in the answer not responsive to the allegations of the bill is not evidence for the defendant. Atkinson vs. Foster, 134 111. 472. Immaterial matters will be disregarded. Pinueo vs. Goodspeed, 120 111. 524; O'Brien vs. Fry, 82 HI. 274. — Matters in Avoidance: Effect of sworn answer as to evidence may be waived by stipulation. Dowden vs. "Wilson, 71 111. 485. — Spirit of Charge: An answer under oath will not avail as to 112 ■ ANSWERS evidence on a point which is denied word for word as alleged in bill, but which does not deny the spirit of the charge. Sutherland vs. Eeeve, 41 App. 295. Answer must meet charge as fully as it is made to be responsive. Gregg vs. Eenfrew, 24 111. 621. — Bills for Divorce: The divorce statute does not require an answer to a bill for divorce to be sworn to, but provides that it need not, and is different from the general chancery practice in that respect. The statute having dispensed with such oath, the defend- ant requires no advantage by swearing to answer. Such a sworn answer has no more effect than the bill, and is not evidence. Coursey vs. Coursey, 60 111. 186; Adlard vs. Adlard, 65 111. 212. — Oath Waived: If the oath is waived, sworn answers will have no force as evidence but will be deemed only pleading. Plot vs. Davis, 241 111. 434; Hare Co. vs. Dailey, 161 111. 379; Hop- kins vs. Granger, 52 111. 504; Wallwork vs. Derby, 40 111. 527; Willenborg vs. Murphy, 36 lU, 344; W. Chi. St. Ey. Co. vs. Stolt- zeiifcldt, 100 App. 142. Unsworn Answers: — As Evidence: Allegations of an unsworn anrwer are not evi- dence in favor of defendant. Hoffman vs. Schoyer, 143 111. 598. — Admissible as Admission: An original answer filed by defend- ants in a bill to foreclose a mortgage, admitting that the mortgage was made on the land for which it was foreclosed, is legitimate evidence to be considered by the court, whether it was sworn to or not, and it matters not that it was withdrawn from the files when a second answer was filed. It is like a letter or other statement in writing admitting a fact. Daub vs. Englebach, 109 111. 267; Fairbanks vs. Badger, 46 App. 644, So where a defendant in his answer claims that the bond men- tioned in the bill as the foundation of the relief sought, was for- feited by reason of non-payment, it in effect is an admission on the record of the existence of the l)ond. McVey vs. McQuality, 97 111. 93. Conclusiveness : — hnpcachment of Defendant: A party seeking evidence by a bill of discovery is not bound by the answer to such an extent that he may not controvert the correctness of it, although he cannot impeach the party answering by showing that he is unworthy of belief. Chambers vs. Warrenu, 13 111. 319; Williams vs. Jayne, 55 111. 181; Curtis vs. Martin, 20 111. 557. Disclosures made by answer to a bill in chancery requiring a discovery concerning matters charged therein are not conclusive, but, upon replication being filed, maybe disproved or contradicted. Harbert vs. Mershon, 169 111. 52. (See Discovery.) — Hearing on Bill and Ansiver: AVhere a case is heard upon bill and a verified answer, answer under oath not having been waived, no replication having been filed, the answer is taken as true, and ANTE-NUPTIAL CONTRACT 113 no evidence can be received unless it be a matter of record to which the answer refers. Knapp vs. Gass, 63 111. 492; Mason vs. McGuire, 28 111. 322; Cham- bers vs. Bowe, 36 111. 171; Piot vs. Davis, 241 111. 434; Butts vs. County of Pooiia, 226 111. 270; KaoKcbein vs. Higgle, 51 App. 538; Cf. Kingman vs. Mowrey, 182 111. 256; Fordyco vs. Shriver, 115 111. 530; Mason vs. McGuire, 28 111. 322; Dc Wolf vs. Long, 7 III. 679. (See Chancery.) — Fact Admitted hij Answer: If a fact is alleged in bill and ad- mitted in answer, admission is conclusive and evidence tending to disprove it should not be admitted. C. E. I. & P. E. Co. vs. People, 222 111. 427; Home Ins. Co. vs. Meyer, 93 111. 271; Wood vs. Wheeler, 93 111. 153. And a defendant cannot set up by evidence defense which is not set up in his answers. Home Ins. Co. vs. Meyer, 93 111. 271; Johnson vs. Johnson, 114 111. 611 ; Kehm vs. Mott, 187 111. 519; ^Nfehan vs. Mehan, 203 111. 180; Milliard vs. Milliard, 221 111. 86; C. E. I. & P. E. Co. vs. People, 222 111. 427, Allegation admitted need not be proven. Loughridge vs. N. W. Ins. Co., 180 111. 267; Diemel vs. Brown, 136 111. 586. — Exceptions: Under sections 20, 21, and 24 of the Chancery act, the defendant is requii^ed to answer all allegations and inter- rogatories of the complainant, whether answer on oath is waived or not, and accordingly, the former practice precluding the filing of exceptions to an unsworn answer no longer prevails. Farrand vs. Long, 184 111. 100; Bauerle vs. Long, 165 111. 340; Hair Co. vs. Daily, 161 HI. 379. Admissibility of Answer of One Defendant: As a general rule, the answer of one co-defendant in chancery cannot be introduced in evidence against another. Eust vs. Mansfield, 25 111. 336; Rector vs. Eector, 8 111. 105. But when such defendants are partners, or when one has acted as agent of the other in any transaction to which answer may re- late, same is admissible, the partnership or agency existing at time of filing the answer. Pensoneau vs. Pulliam, 47 111. 58; Eust vs. Mansfield, 25 111. 336. So the answer of one co-defendant may be read in an interpleader suit. Morrill vs. Manhattan Ins. Co., 183 111. 260. Answer of one co-defendant cannot be admitted on behalf of complainant against defendant in default, merely by reason of such default. Clark vs. Wilson, 127 111. 449. The reason why an answer of one defendant in chancery cannot l)e used against his co-defendants is because, as there is no issue between them, there can be no opportunity for cross examination. Pensoneau vs. Pulliam, 47 111. 58. ANTE-NUPTIAL CONTRACT Presumptions and Burden of Proof: — Knoivledge of Extent of Husband's Property: If it appear that the provision made for the intended wife is disproportionate Ev. — 8 114 ANTI-SALOON TERRITORY to the means of the intended husband, a presumption is raised in her favor that the execution of the agreement was brought about by a designed concealment of the amount of his property by the in- tended husband, and the husband or persons cLiiming through him, in order to sustain the agreement, have cast upon them the burden of proof to show that the intended wdfe, at the time she executed the agreement, had full knowledge of the nature, character and value of the intended husband's property, or that the circumstances were such that she reasonal)ly ought to have had such knowledge. Mines vs. Phee, 254 111. 60 ; Warner vs. Warner, 235 111. 448 ; Colbert vs. Einijs, 231 111. 404; Murdock vs. Murdock, 219 111. 123; Yarde vs. Yarde, 187 111. 630; Hessick vs. Hessick, 169 111. 486; Achilles vs. Achilles, 151 111. 136; XII 111. Notes 940, § 24. Admissibility of Evidence : Parol evidence to establish an ante-nuptial agreement is inad- missible. Keady vs. White, 168 111. 76; Richardson vs. Eichardson, 148 111. 563; McAnulty vs. McAnulty, 120 111. 26; Austin vs. Kuehn, 111 App. 506. But conditions and circumstances surrounding parties at time of execution are competent in aid of construction of contract in writing. Collins vs. Phillips, 259 111. 405. Competency of Witnesses : Widow is not a competent witness in her own behalf against the heirs of her deceased husband, in suit by her to set aside ante- nuptial contract. Yarde vs. Yarde, 187 111. 636; Eichardson vs. Richardson, 148 111. 563; Murdock vs. Murdock, 121 App. 429. Nor on bill for dower, where an ante-nuptial contract is set up in bar, is she a competent witness to testify as to circumstances at- tending making of agreement for purpose of impeaching same. Taylor vs, Taylor, 144 111. 436. Nor as against the heirs of her husband is the widow a compe- tent witness to tell what took place at the time of the execution of a post-nuptial contract. Stokes vs. Stokes, 240 111. 330. ANTI-SALOON TERRITORY Admissibility of Evidence: — Records of Election Creating: Certificates of officers who can- vassed the election, which state the meeting of the canvassing board, and the canvassing of the returns of the election, the number of votes cast for and against the proposition, and the majority in the affirmative, is sufficient. Certificate need not recite legal votes nor copy the official ballot. Presumption is that votes cast were legal. People vs. Walker, 154 App. 3; People vs. Joyce, 154 App. 13. Official certificate of clerk as to result of election, whether cer- tain territory in which election was held was to be anti-saloon ter- ritory, is admissible in prosecution for selling liquor in such ter- ritory. People vs. Willi, 147 App. 207; People vs. Danley, 181 App. 80. ANTI-SALOON TERRITORY 115 And in such proceedings it is conelusive and its correctness can- not be attacked. People vs. Willi, 147 App. 207. The record kept by the town clerk, showing result of an election is admissible as evidence, and the question of how well bound the book was, in which such record was kept, is not material. If it is the one used for such purpose, and the record is properly kept, it is admissible in all courts. People vs. Ezell, 155 App. 298; People vs. Doschio, 157 App. 51. The record of election is competent where it shows the result of ;ni election in the town in question, notwithstanding the recitals that it was a township meeting and a township election. People vs. Arms, 165 App. 394. To warrant a verdict of guilty in a prosecution for maintain- ing saloon in an anti-saloon territory, it is essential that the Peo- ple prove, beyond a reasonable doubt, tliat the act complained of took place in an anti-saloon territory or district. A certificate of a town clerk showing the result of an election, and the number of votes, is not sufficient, though the affirmative votes were in the majority. Where the proposition submitted was, shall this town continue to be anti-saloon territory, it cannot be inferred from the mere fact that the question whether the town should remain anti-saloon territory was submitted to and answered in the affirmative, by the voters, that the town theretofore had been declared to be anti- saloon territory. People vs. Wilson, 1G8 App. 637, —^Government License: Proof of a license may be made by oral testimony of an officer to whom such license was shown by defendant, upon request, at his place of business. People vs. Peterson, 153 App. 481. A question put to defendant, when called in his own behalf, as to Avhy he had taken out a government license is proper. People vs. Zoeller, 160 App. 437. Secondary evidence of the issuance to defendant of an internal revenue special tax stamp or receipt is properly admitted, though objected to, for the reason that defendant could not be called upon to incriminate himself by producing the original of such special tax stamp or receipt. People vs. Plopper, 158 App. 250. Upon failure to produce the original stamp or license issued by the government upon proper notice, the record of the government, showing issuance of such stamp or license, is competent. People vs. Baum, 159 App. 315. An examined copy of a record of tax payers in the office of the district collector of internal revenue is competent to show de- fendant had government license. People vs. Joyce, 154 App. 13; People vs. Peterson, 153 App. 480. Certified copy of the official record of the collector of internal revenue is admissible and where letters are used upon the record, and so appear from the certificate, the collector may designate in his certificate the meaning of such letters as so officially used by him. People vs. Plopper, 158 App. 250. 116 ANTI-SALOON TERRITORY An internal revenue tax stamp is competent, notwithstanding it contains no statement that it sets forth .-ill I hat is shown })y the record in the office of the internal revenue collector. People vs. Foremau, 165 App. 13. Such original special tax stamp issued to defendant and posted by him is competent, and its admission does not controvert estab- lished rule of evidence in criminal cases. People vs. Whalen, 151 App. 16. An exemplified copy of the record showing issuance of an internal revenue tax stamp by the United States Revenue Collec- tor is competent as tending to show the liquor sold was of the kind for which the government required the payment of a tax, and also as tending to show that such liquor was intoxicating in character. People vs. Moore, 161 App. 56. Interlineations in official certificate, if satisfactorily explained, will not affect the competency of such certificate. People vs. Foreman, 165 App. 13. — Former Prosecutions: In prosecution for the unlawful sell- ing of intoxicating liquor within the limits of a city, it is compe- tent to show that defendant had been charged by information with the keeping of a place where intoxicating liquor was unlawfully sold, and that to such information he had pleaded guilty. People vs. Whaleu, 151 App. 16. But it is improper to require defendant, upon cross examination, to testify as to former prosecutions to which he had been party de- fendant. People vs. Duggan, 150 App. 375. — Good Faith: Where the good faith of a party is involved, he may testify directly thereto. People vs. Kudorf, 149 App. 215. Weight and Sufficiency: The issuance of an internal revenue special tax stamp or receipt by the United States to any person as a wholesale or retail dealer in liquors or malt liquors at any place within territory w^hich, at the time of issuance thereof, is anti-saloon territory, shall be prima facie evidence of the sale of intoxicating liquor by such person at such place, or at any place of business of such person within such territory where such stamp or receipt is posted, and at the time charged in any suit or prosecution under this act, Provided, such time is within the life of such «tamp or receipt. People vs. Joyce, 154 App. 13. In such prosecution the evidence is clear and convincing when it appears that the liquor v/as sold in bottles the size of ordinary beer bottles; that it looked like beer, tasted like a poor quality of beer, foamed like beer and produced on the drinker the same effect as beer, that the liquid was intoxicating; that the place where defendant sold same was in anti-saloon territory, and that defend- ant had an internal revenue special tax stamp from the United States for the retail sale of liquor in his place of business at the same time the sales were made. Pesple vs. Zoeller, 160 App. 437. A prima facie case of selling liquor in anti-saloon territory is made by proving the issuance to defendant of a special tax stamp, without proving that such special tax stamp was posted. People vs. Plopper, 158 App. 250. APPEAL BONDS 117 The time of the commission of the offense is not of the essence, it need not be precisely laid, and it is suriieient if it be laid at any time before the filing of an information, and witliin the limitation. Proof that the olfenses charged were committed on any day or days within the period of eighteen months before indictment found is sufficient. Kettles vs. People, 221 111. 221; People vs. Kudorf, 149 App. 21.5- Koop vs. People, 47 111. 327. APPEAL BONDS See Bonds, Principal and Surety, Records. Pleading : —-0/ the Declaration: The declaration in action on bond suf- ficiently avers the rendition of judgment against appellant where it sets out the bond in haec verba and that fact is recited in the bond. Harding vs. Kuessner, 172 111. 125. And need not aver that judgment of affirmance remains in force, or that no further appeal has been prosecuted. Harding vs. Kuessner, 70 App. 355. An allegation that appellant did not prosecute his appeal with effect, without a statement of what became of the suit, is insuf- ficient on dennirrer. Nor will it avail that it alleges appeal was finally terminated. Daggett vs. Mensch, 141 HI. 395. The averment of amount of judgment appealed from is matter of description and must be proven as laid. Smith vs. Frazier, 61 111. 164. — Set-off: Costs awarded to appellant on affirmance are not matter of set-off in action on bond, — certainly not without a plea. Harding vs. Kuessner, 172 111. 125. — Niil Tiel Record: Is not proper plea to action of debt on ap- peal bond. McCarty vs. Construction Co., 219 111. 616; Herrick vs. Swartout, 72 111. 340; Arnott vs. Friel, 50 111. 174. — Non Est Factum: Not sworn to, does not put execution of bond in issue. Herrick vs. Swartout, 72 111. 340; Obberreich vs. Foster, 152 App. 302. And admits all other material averments of the declaration. Lefkow vs. Taylor, 140 App. 570; Landt vs. McCullougli, 130 App. 515. — Non Damnificatiis : A plea of non damnificatus is not good in debt as against a declaration based upon breach of a covenant to pay specified sums of money, although the covenant may have been given by way of indemnity only. T. H. & I. Ey. Co. vs. P. & P. U. Ey. Co., 182 111. 501; Fidelity De- posit Co. vs. Cooney, 127 HI. 523. Admissibility of Evidence: — The Bond: Where the declaration described an appeal bond to be payable on demand, but proceeds to set forth the condition at large, by showing the true character of the bond, so that no sur- 118 APPEAL BONDS prise ensues to defendant, the bond may be offered in evidence, although it is not payable on demand, but on the affirmance of the judgment. Walker vs. Welch, 14 111. 277. — Mistake in Name of Party: Where the names of parties to suit are correctly given in an appeal bond, except in the condition, where appellee's name is inserted instead of appellant's, the bond will not be rendered invalid, as the context shows the mistake and who was intended. Sehill vs. Eeisdorf, 88 111. 411; Bloch vs. Blum, 33 App. 643; Hib- bard vs. McKinley, 28 111. 240. A mistake in an appeal bond as to name of a party who recov- ered judgment appealed from is fata] to action thereon, for the reason that no record of the court appealed to, showing any dispo- sition of the suit between the parties named in the bond can be produced, and therefore that no breach of the condition of the bond can be proven. Bloch vs. Blum, 33 App. 643. — True Intent: The true intent of such bond may be followed, where the same can be discovered therefrom, without the aid of extrinsic evidence. Bloch vs. Blum, 33 App. 643 ; Hibbard vs. McKinley, 28 111. 240. — Recitals in Bond: In action of debt on appeal bond, parties executing it are not permitted to deny the facts recited in the bond. McCarthy vs. Chimney Cons. Co., 219 111. 616; Ferguson vs. Allen, 91 App. 591. So the defendants in such action cannot plead that the judgment appealed from, was rendered against other persons than those recited in the iDond as being the parties to such judgment. xMcCarthy vs. Construction Co., 219 111. 616; Arnott vs. Friel, 50 111. 174. The bond sued on recited a judgment, and covenanted for its payment upon affirmance in the supreme court, and the obligors are estopped by such recitals to deny the existence of a valid, unsat- isfied judgment at time bond was executed. Although there had been a levy upon sufficient property to satisfy the judgment, yet appellants, by interposing their appeal bond to the supreme court, suspended all proceedings under the levy, and they cannot be per- mitted to insist that the levy was itself a payment and satisfaction of the judgment. Smith vs. Lozano, 1 App. 171. Where an appeal was allowed to two defendants upon their en- tering bond, with security to be approved, and only one of them gave bond and the appeal was dismissed by court, it was held, that the parties who did execute the bond were liable on the same, and that they were estopped by recital therein from denying that an appeal had been taken. Meserve vs. Clark, 115 111. 580. — Defense in Original Action: An affirmance by a court of re- view of the judgment appealed from is conclusive of the validity of the judgment in an action on appeal bond. McCarthy vs. Construction Co., 219 111. 616; K. & E. R. E. Co. vs. Henry, 90 111. 255. APPEAL BONDS 119 It is no defense to an action on bond that there was a good de- fense to action on appeal in which bond was given; surety can- not relitigate the matter thus determined. Mann vs. Warde, 64 App. 108. The judgment appealed from, the court having had jurisdiction both of the person and of the subject matter, cannot be impeached by parol evidence in action on bond. Trogdon vs. Cleveland Stone Co., 53 App. 206. — Judgment and Decree: Draft of decree in original suit is not best evidence. Huntingdon vs. Aurand, 70 App. 28. — Certified Transcript: Duly certified transcript of record or order affirming judgment is competent evidence of affirmance. Hardiag vs. Kuessuer, 172 111. 125; Obberreich vs. Foster, 152 App. 302. Copy of final order of supreme court showing that a judgment had been affirmed on day alleged in declaration, between same par- ties and from same county, is prima facie evidence that judgment appealed from was affirmed. Pearl vs. Wellman, 11 111. 352. In suit on bond given upon appeal, it is unnecessary to intro- duce a copy of the record of judgment appealed from, when it is recited in condition of bond, as defendant is estopped from deny- ing its existence. Herrick vs. Swartout, 72 111. 340 ; Shunick vs. Thompson, 25 App. 619. Plaintiffs read in evidence the bond sued on and a certified copy of order of Appellate Court affirming a decree of circuit court in favor of plaintiffs and against the principal named in bond, and rendering judgment in favor of plaintiffs for costs. Defend- ants thereupon introduced evidence tending to show that decree actually taken to Appellate Court by appeal was one rendered in suit in which principal was defendant and plaintiffs and an- other were complainants. He then attempted to raise a ques- tion of identity of appeal affirmed. The order of affirmance was at least prima facie evidence that decree affirmed was one appealed from. McDonald vs. Allen, 128 111. 521. — Prosecution With Effect: Is not a question of fact, but of law, arising upon facts. Daggett vs. Mench, 141 111. 395. — Issuance of Execution: In action on appeal bond, it is not necessary to show that execution issued upon the judgment. Trogdon vs. Cleveland Stone Co., 53 App. 206. — Cost and Damages: AVhen the appeal bond sued on and orders of affirmance of the courts are in evidence, it is improper to permit a witness to testify as to amount due upon the bond. Becker vs. People, 164 111. 267. — When Lease Competent: In action on appeal bond given in action of forcible detainer, conditioned to pay all rent due and to become due, original lease is proper evidence to show what rent should be paid. Clapp vs. Noble, 84 111. 62. Where a plaintiff in action of forcible detainer is wrongfully kept out of possession of the premises during pendency of an ap- 120 APPEARANCE peal, the value of use and occupation, or (he reasonable rental value is correct measure of damages in action on appeal bond. Schuuick vs. Thompson, 25 App. 619. — Costs and Damages: A plaintitt' cannot recover without evi- dence of amount of his damages; and the affidavit of plaintiff's claim, tiled with his declaration, is not competent evidence on assessment of damages. The statute makes it evidence only when suit is upon an open account, and not when it is upon a written contract. Mestling vs. Hughes, 89 111. 389. — Correctness of Fee Bill: INlade out by proper officer, cannot be questioned in action on the bond. Parisher vs. Waldo, 72 111. 71; Trogdon vs. Cleveland Stone Co., 53 App. 206; Santa Clara Co. vs. Prescott, 127 App. 644. APPEARANCE See Age, Attorneys, Judgments, Expert and Opinion, APPRENTICES Consent of Parties: — Parol Competent in Action For Services: In an action by a minor for work, labor and sei-vices, proof that the services were rendered under an indenture of apprenticeship is a good bar to the action, and oral evidence is admissible to prove the consent of the father and minor to the execution of an indenture with the master. Olney vs. Myers, 3 111. 311. Indenture though void as to minor, binds father. Ford vs. McVay, 55 111. 119. Enticing- Apprentice: An action will lie against a party who shall "counsel, entice, and persuade" an apprentice to depart from the service of the master, without proof that the apprentice acted upon such counsel given. Ilalliday vs. Gamble, 18 111. 35. — Measure of Damages: Value of services lost, reasonable ex- penses incurred in getting servant back again, damages for loss of time in that behalf. Hays vs. Borders, 6 111. 46. ARBITRATION AND AWARD Admissibility of Evidence by Arbitrators: Arbitrators must act together in taking evidence. Cit. Ins. Co. vs. Hamilton, 48 App. 593. Umpire should not make decisions on statements of arbitrators, but should hear evidence and make independent award as if he were sole arbitrator. Ingraham vs. Whitemore, 75 111. 24; Waughop vs. Carter, 20 111. 112. AKBiTRATION AND AWARD 121 Examination of parties by sole arbitrator is not ex parte exami- nation. Lincoln vs. Cook, 3 111. 61. Rejection of evidence by arbitrators is not evidence of fraud on their part. Root vs. Eenwick, 15 111. 461. Admissibility of Submission and Award: As between parties to submission and award, same is inadmissible to show title to property not passed upon. Woodward vs. Woodward, 14 111. 370. Not admissible when award signed by only two of three arbi- trators. Bannister vs. Reed, 6 111. 92. And is not admissible where defect is apparent on the face. Kelderbaus vs. Hall, 116 111. 147. Presumptions and Burden of Proof: — Validity of Award: Award, being the judgment of a tribu- nal chosen by the parties, is to be liberally construed. Every rea- sonable intendment and presumption is in favor of its validity. The burden of proof is upon objectors to impeach. Seaton vs. Kendall, 171 111. 410; Darst vs. Collier, 86 111. 96; Hay- wood vs. Harmon, 17 111. 477; Henrickson vs. Eheinbecker, 33 111 299 ; XI 111. Notes 376, § 63. All reasonable intendments will be indulged in support of an award where no fraud, corruption or unfairness is shown. McDonald vs. Bond, 195 111. 122; Haywood vs. Harmon, 17 111. 477; Meritt vs. Meritt, 11 111. 565. In the absence of proof of fraud, accident or mistake, award will be presumed just and correct, and its fairness and correct- ness will not be re-tried in suit to recover the amount found due from one party to another. Tucker vs. Page, 69 111. 179. No presumption will be indulged to overthrow it. Merritt vs. Merritt, 11 111. 565; Shear vs. Mosher, 8 App. 119. — Matters Suhmitted: Where submission is general and an award of one or more things made, it will be presumed, until con- trary is shown, that nothing else was submitted to the arbitrators. Tucker vs. Page, 69 111. 179; Hubbard vs. Forman, 29 111. 90. — Ratification hy Partner: Ratification of submission may be presumed where he gives evidence before arbitrators, though he did not sign submission. Hallack vs. March, 25 111. 48. (See Stipulation.) Impeachment in Equity: — In General: AVhere an award is in conformity with the gen- eral submission, and no fraud or mistake appears on the face of the award, it will not be interfered with or set aside by a court of equity for errors either of law or fact, committed by the arbi- trators. White Star Mining Co. vs. Hull])erg, i:20 111. 578. — Admissibility of Parol Evidence: Parol evidence is incom- petent to enlarge written award. Schmidt vs. Glade, 126 111. 485. The scope and effect of an award must be determined from the 122 ARCHITECT'S CERTIFICATE language of the submission and the award cannot be enlarged by parol. Pinkstaff vs. Stefify, 216 111. 406. Parol evidence is admissible to explain award, or identify mat- ter in controversy. Burroughs vs. Guthrie, 61 111. 70; Farr vs. Johnson, 25 111. 522. Arbitrators as Witnesses: Arbitrators may be examined to prove that no evidence was given on a particular subject, or that there is a mistake in the award, also, as to the time when and the circumstances under which an award was made, and what transpired at the hearing. Spurch vs. Crook, 19 111. 415. But where award pursues written submission, arbitrators are incompetent to enlarge written award. Schmidt vs. Glade, 126 111. 485. Testimony of one arbitrator, tending to show misconduct on his part alone, cannot be received to impeach the award, there being 110 other evidence of such misconduct. Stone vs. Baldwin, 226 111. 338; Claycomb vs. Butler, 36 111. 100; Dauman vs. Baylers, 22 111. 300. Nor can the testimony of one arbitrator be received to show mis- conduct of co-arbitrators. Tucker vs. Page, 69 111. 179; Pulliam vs. Pensonneau, 33 Til. 376. Nor that he signed same under belief that award was illegal and of no binding effect. Tucker vs. Page, 69 111. 179. But an arbitrator who has not signed the award is competent to impeach same. Novak vs. Eoehester Ins. Co., 156 App. 352. And when all are produced, arbitrators are competent to show fraud or mistake. Pnlliam vs. Pensonneau, 33 111. 376. ARCHITECT'S CERTIFICATE See Building Contracts, Assumpsit. ARSON See Identity. Corpus Delicti: Consists not only of the fact that a building has been burned, but also of the fact that it has wilfully been burned by some re- sponsible person. The main fact which is to be proven in the first place, is the burning of the building. When that fact is estab- lished, then it is necessary to show how that act was done and by whom. Carlton vs. People, 150 111. 181. Statute defines offense as at common law. Offense is commit- ted by the wilful and malicious burning of any of the structures ASSAULT AND BATTERY 123 enumerated without alleging or proving a specific intention to in- jure or defraud. Mai vs. People, 224 111. 414. The burning of a stack of hay is not arson at common law or under the statute. Creed vs. People, 81 111. 565. Under former statute, value of property must be averred and proven. Clark vs. People, 2 111. 117. Threats : — Of Accused: Are admissible. Carlton vs. People, 150 111. 181. — Of Third Persons: Defendant offered to prove by witness that they had heard a third person make threats that he would burn up everything the prosecutor had, which was not admitted. Held that proposed testimonv was hearsay and properly excluded. Carlton vs. People, 150 111. 181, To Defraud Insurer: The crime of arson and the crime of maliciously burning prop- erty with intent to defraud an insurance company are entirely dis- tinct. Mai vs. People, 224 111. 414; Elgin vs. People, 226 111. 486. The dififerences between this otfense and arson are, First : It may be committed on personal property ; Second, it may be com- mitted on one 's own property ; Third, it must be committed on property which, at the time, is insured against loss by fire, but not necessarily under a valid policy ; Fourth, it must be committed with the specific intent to injure the insurer ; fifth, the punishment is imprisonment in the penitentiary not less than one nor more than ten years, whereas arson is punished under our statute by imprison- ment in penitentiarv not less than one or more than twenty years. Mai vs. People, 224 111. 414. — Intent: The specific intent to injure insurer must be averred and proven. Mai vs. People, 224 111. 414; Staaden vs. People, 82 111. 432. — Insi'rcr: IMust be alleged as a body corporate or naming per- sons composing company. Staaden vs. People, 82 111. 432. * — Policy: Need not be proven to be valid, but that the act was done with intent to defraud the company. Policy competent on question of intent. McDonald vs. People, 47 111. 533. A.SSAULT AND BATTERY Burden of Proof: — Intoit: The burden of proof is upon plaintiff to show either that the intention was unlawful or that defendant was in fault. Paxton vs. Boyer, 67 111. 132; Eazor vs. Kinzie, 55 App. 605; see ali-o People vs. Hart, 156 App. 523. — Self -Defense: The burden of proving self-defense is upon de- fendant. Hulse vs. Tolman, 49 App. 490; XI 111. Notes 388, § 12. 124 ASSAULT AND BATTERY — Under Pleadings: On issue taken upon replication de in- juria to a plea of son assault demesne, burden is upon defendant to prove that the assault was made in necessary defense, and that in making: the assault he used no more force than was necessary to protect himself. Gizler vs. Witzel, 82 111. 322; Hulse vs. Tolman, 49 App. 490. Where a defendant has pleaded son assault demesne, l)urden is upon him, notwithstanding the interposition likewise of a plea of the general issue, to establish a justification for the assault. Spenler vs. Turley, 158 App. 146; Wells vs. En,irlehart, 118 App. 217. True rule under such pleadings; the general issue requires plain- tiff to prove an assault by defendant, but when that assault is proven, the burden of proving prior assault by plaintiff is upon defendant. Kebl vs. Burgener, 157 App. 468. Where a defendant has pleaded moderate castigavit, and plain- tiff has replied de injuria, burden is upon defendant. SwiKart vs. Ballon, 106 App. 226. Admissibility of Evidence: — In General: AVhether a statement or admission of a party has reference to the issue, is a question of fact for the jury, the duty of the court being to admit proof of the statement or admis- sion if there is evidence tending to show that it refers to the con- troversy in hearing. A witness for plaintiff was allowed, over objection of defend- ant, to give in evidence a declaration made by defendant after the occurrence, to the effect that he, defendant, "had knocked hell out of them up at Nakomis." It was objected that it did not appear that this admission or statement had reference to the diffi- culty with plaintiff. The name of plaintiff was not used, but the assault upon him occurred at Nakomis, a few weeks previous to the conversation, and the words used by defendant, in their com- mon meaning, clearly referred to the hitting or knocking some one at Nakomis. VonEeeden vs. Evans, 52 App. 209. In an action of trespass by husband and wife for injury to the latter, evidence of injury to the property of husband at same time is inadmissible, except so far as it may be necessary to explain as- sault on person of the wife. Eeeder vs. Purdy, 41 111. 279. In action against street car company for assault by conductor, his report to defendant company is not admissible in its behalf where, on cross examination of the conductor, as to its contents, his statements were only negative. Sweeney vs. Chi. City Ey. Co., 148 App. 351. — Under Particular Pleadings: In absence of a plea son assault demesne, self defense or justification is not available by defendant as a substantive ground of defense to a civil action of assault and battery. DeFreitas vs. Niines, 156 App. 17; Grabill vs. Ben, 110 App. 588. On plea of son assaidt demesne, replication of de injuria is a general traverse of the whole plea, and under it plaintiff is at lib- erty to adduce any proof that tends to disprove any of the facts ASSAULT AND BATTERY 125 alleged in plea, and may show- in evidence that defendant's bat- tery was excessive. Ayers vs. Keller, 11 111. 17; Fortune vs. Jones, 30 App. llli. But when defendants liave pleaded so)i assault (kmesnc, and plaintiflt' has replied de injuria without a special replication, justi- fying such prior assault, he cannot either by evidence or instruc- tion, justify it. Fortune vs. Jones, 30 App. 116. In action of trespass vi et armis, matters in discharge or by way of justification must be specially pleaded, and cannot be of- fered under general issue. Thomas vs. Eiley, 114 App. 520; Blanchard vs. Burbauk, 16 App. 375. In absence of plea molliter man us imposuit, proof that the as- sault and battery in question took place in an effort to preserve the peace is not admissible as a substantive gTound of defense, but it is competent, notwithstanding the absence of such a plea, in diminution of damaixes. Merifield vs. Davis, 130 App. 162. — Threats: Threats must have been communicated to defend- ant. Sorgenfrei vs. Scbroeder, 75 111. 397; Forbes vs. Snyder, 94 111. 374. Previous threats are competent only to give character or coloring to some act of party making same. Forbes vs. Snyder, 94 111. 374. Unless threats to be proven are so recent as to become a part of the transaction in question, they are not admissible. Cummins vs. Crawford. 88 "ill. 312; Hulse vs. Tolman, 49 App. 490; Stucker vs. Thompson, 139 App. 147; Doyle vs. Cavauaugh, 139 App. 363. In trespass for shooting plaintiff, testimony of witnesses that they heard plaintiff make threats against life of defendant some twenty days before shooting is inadmissible. Cummins vs. Crawford, 88 III. 312; Hulse vs. Tolman, 49 App. 490; Stucker vs. Thompson, 139 App. 147; Doyle vs. Cavanaugh, 139 App. 363. Evidence of threats made by one party to an altercation against the other are only competent when the party alleged to have made the tln^eats makes some hostile demonstration prior to being at- tacked by the other partv. Hefferman vs. Lloyd, 145 App. 583; Forbes vs. Snyder, 94 111. 374. — Intent: The motive, intent or design of the wrong-doer towards the plaintiff is not the criterion as to the form of remedy, for, where the act occasioning the injury is unlawful, the intent of the wrong-doer is immaterial; but where the party inflicting the injury is no wroug-doer, but is exercising a right or doing a law- ful act, and injury results to another, then the intent becomes material, as also the question of reasonable care. Gilmore vs. Fuller, 198 111. 130; Paxton vs. Boyer, 67 Til. 132. Where the defendant testified he made no threats and did not offer to strike or harm plaintiff, refusal to permit proof of laek of intent is not error. Sidiniitt vs. Kurrus, 234 111. 578. In an action for an assault and battery, if the act occasioning the wrong is unlawful, the intent of the wrong-doer is innnaterial; 126 ASSAULT AND BATTERY but where the party inflicting the injury is not a wrong-doer, but is doing an act not unlawful, and injury results to another, then the intent becomes material. Nicholls vs. Colwell, 113 App. 219; Hitzelberger vs. Kanter, 181 App, 459. If a person in the exercise of a right, is approached by another in a menacing manner, and is told if he does the act his menaces indicated, he would kill him, such a declaration, instead of a threat to kill, should rather be regarded as a warning to the other party not to do the violence. Chapman vs. Cawrey, 50 111. 512. — Character of Party: In trespass, for shooting and wounding another, evidence of the previous character of the parties is inad- missible. As a general rule, the character of plaintiff as for vio- lence, in such case, is not the subject of inquiry. Particular acts, when they constitute part of or explain the transaction, may some- times be shown in mitifijation of damages. Cummins vs. Crawford, 88 111. 312. Evidence that plaintiff has been guilty of adultery is incompe- tent. Dimmick vs. Downs, 82 111. 570. Proof of habits of plaintiff for sobriety prior to the injury af- fords no justification, and when proposed without any explanation or offer to follow it with proof that such habits contri]>utcd to suf- ferings and injury of plaintiff, it is not error to exclude same. Drohn vs. Brewer, 77 111. 280. — As to Damages: The jury, in awarding punitive damages for wanton and wilful trespass, may take into consideration the pe- cuniary circumstances of the defendant, the age, sex, position in society of plaintiff, and the injuries received, with all circum- stances in evidence. Jones vs. Jones, 71 111. 562. Evidence as to what plaintiff has paid for medical and surgical treatment is competent, and the fact that it is not followed by proof as to the amount being the usual and reasonable charge does not render its admission erroneous, where no assurance was required of the plaintiff that such further proof would be made, and no motion was made to exclude the evidence when other proof did not follow. Schmitt vs. Kurrus, 234 111. 578. Evidence is admissible to show pecuniary circumstances of par- ties. Cochran vs. Annon, 16 111. 316; Schmitt vs. Kurrus, 234 111. 578; Mullin vs. Spangenberg, 112 111. 140; Drohn vs. Brewer, 77 111. 280; McNamara vs. King, 7 111. 432. But the defendant can introduce no evidence on the subject, even in mitigation of damages, unless proof is first introduced by plaintiff. Mullin vs. Spangenberg, 112 111. 140. Plaintiff may show he is a poor man with a large family. The business and circumstances of plaintiff in actions of this character are proper subjects for the consideration of the jury in assessing the damages which he may have sustained. It is the polic,y of the law to protect the persons and property of the poor. The conse- ASSAULT AND BATTERY 127 quenees of an assault upon a poor man, who has a family depend- ent upon his labor for support, by which he is maimed for life, are surely more serious than they would be to a man in affluence. McNamara vs. Kiiif?, 7 111. 432. In action for trespass for assaulting and whipping plaintiff to make him confess to the commission of a crime, the fact tliat the plaintiff was of weak mind and incapable of taking care of him- self is proper to go to the jury. Ousley vs. Hardin, 23 111. 352. Ailments and aggravation by means of the injury may be shown. Green vs. Buckingham, 122 Ai)p. 631. So circumstances of outrage attending assault and battery may be given in evidence to increase exemplary damages, Dickey vs. McDonnell, 41 111. 62. An inquiry into antecedent facts is not proper, unless they are fairly to be considered as part of same transaction. Hulse vs. Tolman, 49 App. 490. Proof as to conduct of plaintiff at other times and upon other occasions, the assault and battery having been committed without any provocation at the time, cannot be given in evidence to miti- gate the damages. Murphy vs. McGrath, 79 111. 594. The merits of former controversies occurring some weeks be- fore the affair in question, are not material in determining the defendant's liability for committing the assault; or whether his conduct was commendable on other occasions, is not the issue. Hulse vs. Tolman, 49 App. 490. The mere fact that the assault and battery complained of might have been committed by the defendant in the course of a fight with the plaintiff, which was entered into by mutual consent, will not avail to relieve defendant from all liability for the injury inflicted; however, such facts may be shown in mitigation of damages. Thomas vs. Eiley, 114 App. 520. While words spoken do not constitute a defense for an assault or an imprisonment, nor even a ground for mitigating or reduc- ing the damages actually sustained by defendant, and it is error to so instruct the jury, still they may be considered for the pur- pose of mitigating exemplary damages, together with all the sur- rounding circumstances. Donnelly vs. Harris, 41 111. 126; Scott vs. Fleming, 16 App. 539. Admitted in Sorgenfrie vs. Schroeder, 75 111. 397 ; Court says, "It is not necessary to cite authorities to show that the charge of swindling was no justification for the beating and wounding. That the jury took this into consideration in estimating the damages seems probalile from the small verdict rendered." Weight and Sufficiency: In a civil action for damages for personal injuries received as the result of an assault and battery, where the act or acts which constitute such assault and battery were not of such criminal char- acter as might be attended with infamy, and were not in any re- spect felonious, it is only essential that the plaintiff establish his case by a preponderance of the evidence. Soloman \s. Buechele, 119 App. 595. 128 ASSENT Self-defense is not established when i1 Jippears that defendant provoked or brought on the first assault. Wells vs. Eu^lehart, 118 App. 217. But even if a phiintifTp, in action of assault and battery, provoked the assault by himself tirst connuitting a technical assault, still he can maintain his action if the assault and battery conuuitted by the defendant goes further than a reasonable self-defense. Gizler vs. Whitzel, 82 111. 322. The question of how much force a person may use in self-defense and what he may do is a question of fact for the jury and not one of law for the court. Stueher vs. Thompson, 139 App. 145; Hulse vs. Tolman, 49 App. 490.- ASSENT See Novation, Recognizance, Bill of LxVding. CONTRACT OF CARRIER: Shipper's Assent: — Burden of Proof: Where a contract limiting the liability of the carrier is contained in a bill of lading, constituting both a re- ceipt and a contract, burden is upon carrier to show that shipper assented to terms and conditions of the contract. Plaff vs. Pacific Express Co., 251 111. 243; 111. Match Co. vs. C. E. T. & P Ey Co., 250 111. 396; Wabash Ey. Co. vs. Thomas, 222 111. 337; C. C. C. & St. L. E. Co. vs. Pattoii, 203 111. 376; C. & N. W. Ey. Co. vs. Calumet Stock Farm, 194 111. 9; I. C. E. B. Co. vs. Carter, 165 111. 570; C. & N. W. Ey. Co. vs. Simon, 160 111. 648; Field vs. C. & A. E. E. Co., 71 111. 458; Boscovit:;; vs. Adams Express Co., 93 111. 523; Toberman vs. Tol. St. L. & W. Ey. Co., 159 App. 200; Warren vs. C. C. C. & St. L. E. E. C?., 156 App. Ill; XI 111. Notes 762, § 181. — Presumption: In absence of any evidence that terms of con- tract were assented to, presumption is that consignor did not Wabash E. E. Co. vs. Thomas, 222 111. 337; C. C. C. & St. L. Ey. Co. vs. Patton, 203 111. 376. And this though signed by the consignor. Wabash e'. E. Co. vs. Thomas, 222 111. 3b7; C. C. C. & St. L. Ey. Co. vs. Patton, 203 111. 376. Proof that a shipper had upon previous occasions received bills of lading containing limitations like those contained in one in ques- tion does not establish prima facie case of assent. 111. Match Co. vs. C. E. I. & P. Ey. Co., 153 App. 568. — AdrnissihiJifij of Evidence: "Whether the terms of a special agreement limiting the liability of a common carrier were under- stood and entered into by the shipper, and assented to by him, is a question of fact, and parol evidence is admissible for the pur- pose of showing whether the agreement was assented to by both parties. Kirbv vs. C. & A. E. E. Co., 242 111. 418; Wabash E. E. Co. vs. Thomas, 222 111. 337; T. C. E. E. Co. vs. Carter, 165 111. 570; C. & N. W\ Ev Co. vs. Simon, 160 111. 64S ; C. & N. W. Ev. Co. vs. Cal. Stock Farm, 194 111. 9; C. & A. E. E. Co. vs. Davis, 159 111. 53. ASSENT 129 Evidence that shipper had upon previous occasions received })ills of lading like the one in question is competent as tending to show C. C. C. & St. L. Ry. Co. vs. Shoot, 130 App. 139; E. & W. Trans. Co. vs. Dater, 91 111. 195: W. St. L, & P. By. Co. vs. Jaggerman, 115 131. 407. — Weight and Sufficiency of Evidence: The mere receiving of the bill of lading without notice of the restrictions therein con- tained does not amovint to an assent thereto. C. & N. W. Ey. Co. vs. Cal. Stock Farm, 194 111. 9 ; C. & N. W. Ey. Co. vs. Simon, IGO 111. 648; Field vs. St. L. & S. F. Ey. Co., 152 App. 562; E. & W. Trans. Co. vs. Dater, 91 111. 195; M. D. T. Co. vs. Joesting, 89 111. 152. The non-delivery of a bill of lading until several days after re- ceipt by the carrier of goods shipped, tends to prove the non-assent by the shipper to the restrictive provisions contained in such bill of lading. Coates vs. C. R. L & P. Ry. Co., 134 App. 216. — Carrier's Assent: The acceptance by a earner, for transpor- tation, of goods marked to a place beyond the terminus of its own line, and its giving a receipt therefor, constitute and imply a prima facie contract to carry and deliver at the point so marked. Coates vs. C. R. I. & P. By. Co., 239 111. 154; Wabash Rv. Co. vs. Thomas, 222 111. 337; C. & N. W. Rv. Co. vs. Simon, IGO 111. 648; W. St. L. & P. Ry. Co. vs. Jaggerman, 115 111. 407; Erie Rv. Co. vs. Wilcox, 84 111! 239; C. & N. W. Ey. Co. vs. IMontefort, 60 111. 175; I. C. R. R. Co. vs. Frankenl)erg, 54 111. 88. CONTRACT OF TELEGRAPH COMPANY: Burden to show assent to restrictive conditions is upon the company. Beggs vs. Postal Tel. Co., 258 111. 238 ; Tyler vs. Western Union Tel. Co., 60 111. 421. And this applies to receiver as well as sender. Webbe vs. West. Union, 169 111. 610. CONVEYANCES: Voluntary Settlements: AVhen nothing appears to show a contrary intention, if the owner of an estate makes a conveyance of it, and places the deed upon record, without the knowledge of the grantee, the title will pass if the latter, on being informed of the transaction, assents to it. When conveyance is a voluntary settlement, to one not sni juris, a formal assent need not be proven, as it will, if nothing further appears, be presumed. Spencer vs. Razor, 251 111. 278; Hill vs. Kreiger, 250 111. 408; Baker vs. Hall. 214 111. 364; Chapin vs. Nott, 203 111. 341; Chilvers vs. Eace, 196 111. 71; Valter vs. Blavka, 195 111. 610; Hiller vs. Meers, 155 111. 284; Winterbottom vs. Pattison, 152 111. 334; Doug- lass vs. West, 140 111. 455; Weber vs. Cristin, 121 111. 91. — Knowledge of Grantee: Where a grantee, who is under no disability, is aware of the conveyance to him, and does not dis- sent, and the conveyance is positively beneficial to him or her, the acceptance will be presumed; but no such presumption will arise so long as the grantee is ignorant of the conveyance. Moore vs. Flvnn. 135 111. 74. Ev. — D 130 ASSIGNMENT — Imposing Ohligation : While the recording of a deed for land may afford pmna facie evidence of its delivery and acceptance, this must be understood as applying to a deed simply conveying the premises, and not as applying to a deed which imposes an obliga- tion upon the grantee to assume and pay a pre-existing incum- brance upon the property. Thompson vs. Dearborn, 107 Til. 87; Wiggins vs. Lnsk, 12 111. 132. , Extrinsic evidence may be admitted to show condition of prop- erty with a view to arrive at the true intent of parties in the terms used by them. Conk vs. Whiting. Ifi 111. 480; Seymore vs. Bowles, 172 111. 521. WORK AND SERVICES: General Rule: The mere fact that a party renders beneficial service with the knowledge of the party benefited, does not render tlie latter lialile. Plaintiff must prove defendant knowingly assented to and accepted such services while they were being rendered, with knowledge of plaintiff's claim for compensation therefor. Chi. Heights Land Assn. vs. Butler, 55 App. 4(51 ; Tascott vs. Grace, 12 App. 639; Sloan vs. C. C. C. & St. L. Ry. Co., 140 App. 31; Campbell vs. Day, 00 111. 363; XI 111. Notes 967, §24. (See Work and Services.) Physician : A physician called to attend a case must determine the fre- quency of his visits and if the patient accepts his services with- out recpiesting him to come less frequently, or without fixing the time for visits, assent will be presumed, and he cannot, when sued by the physician for such services, require the latter to prove the necessity for making such visits or be heard to say that the visits were unnecessary. Elmer vs. Mackey, 186 111. 297 ; Gibson vs. 'Gara Coal Co., 151 App. 424. ASSIGNMENT Presumptions : — Negotiable Insirument: Where made without date, the pre- sumption is that it was of the date of the note, and the presumption will prevail unless rebutted. Johnson vs. Loar, 145 App. 443; White vs. Weaver, 41 111. 409; Eodriguez vs. Merriman, 133 App. 372; Kingsland vs. Koeppe, 35 App. SI; Stewart vs. Smith, 28 111. 397; Cook vs. Norwood, 106 111. 558. This presumption, however, is slight, and weak, and may be overcome by proof. Bussey vs. Hemp, 48 App. 195. And such presuniption may be rebutted by evidence of actual date. Smith vs. Newlin, 89 111. 193. Where a promissory note is indorsed and there is no evidence of the time of the indorsement, or tending to charge the assignee with notice, he will be presumed to be a hoyia fide holder, for a valuable consideration, before maturity, and the question of a want or fail- ASSUMPSIT 131 lire of consideration cannot arise in a suit, on tlie note by sndi as- signee. Cisne vs. Cliidester, 85 111. 523. Admissibility of Evidence : — Opiiiioii of Witiusii: A witness, witliout pretondino; to state acts or facts, may not answer tliat there was a full assignment of a note and inortgage. Barrett vs. Hinckley, 124 111. 32. Nor are statements, merely self-serving and hearsay, admissil)h; to impeach assignment. Mahan vs. Sehroeder, 236 111. 392. — Admissions: Admissions of assignor, of non-assignable in- strument, bind assignee and are admissible against hm. Anderson vs. Brew. Co., 173 111. 213. Declarations of assignor against his interest, and in support of the instrument as it reads, are competent evidence against those claiming under him, but declarations by him, tending to over- throw the assignment or to give it a meaning other than that which appears on its face, are incompetent against the grantee in the instrument. Oliver vs. McDowell, 100 App. 45. Admissions of noininal plaintitf, made after he had parted with his interest, should be excluded. Dazel vs. Mills, 10 111. 67. Admissions made by the owner of a chose in action, already matured, are admissible against purchaser. Sandifer vs. Hoard, 59 111. 216; Cnrtis vs. Martin, 20 111. 557; Ilatcliett vs. Kimbark, ITS 111. 121. But only while he is such owner or in possession, unless made in presence of purchaser. Driskell vs. Flint, 181 App. 137. ASSUMPSIT See Money Counts, Denial of Execution, Non Joinder, For- eign Law, Limitations, Statute op^ Frauds. Common Counts: — //( Goicral: The common counts are used to avoid a variance and to save needless prolixity in pleading but plaintiiT must show a legal cause of action in order to recover under them. He must prove all he would be required to aver in a proper special count. Godfrey vs. Wingert, 110 App. 563. Under the general issue the plaintiff has the burden of not only proving the contract, but also the breach of it as assigned in his declaration. Ward vs. Athens Mining Co., 98 App. 227. Under the general issue, it devolves upon plaintiff to prove de- fendant's promise as charged in the declaration, by direct proof. or to show by the evidence a state of facts from which the law will imply such promise. Bridge Co. vs. Comrs. of Highwavs, 101 111. 518; Baker vs. Eend, 8 App. 409. To admit a document without objection to its competency, under 132 ASSUMPSIT the common counts, is to waive the right to interpose such objec- tions to like documents. N. A. Cas. Co. vs. Saloman, 165 App. 265. Indchitatns assumpsit will not lie where agreement is not for payment of money, but for the doing of some other thing; nor on an executory contract ; nor for the non-delivery of goods. In such ease, the party must declare specially on the contract. Hollister vs. Lyon & Healy, 177 App. 652. — -Money Had and Received: In action to recover for money had and received by defendant for plaintiff's use, plaintiff must prove that defendant holds money which ex aeejuo el bono he ought to pay to plaintitf, the usual test being does the money in justice belong to the plaintiff. Eicholson vs. Moloney, 195 111. 575; Natl. Bank vs. Gatton, 172 111. 625. Assumpsit for money had and received may be maintained when- ever the defendant has obtained money belonging to plaintiff which, in equity and good conscience, he has no right to keep, as in such case the law implies a promise to pay, notwithstanding there was no privity of contract between the parties. First Natl. Bank vs. Gatton, 172 111. 625; Chicago vs. P. C. C. & St. L. Ey. Co., 146 App. 403. The test is whether the money in justice belongs to plaintiff, and has defendant received the money and should he in justice and right return it to plaintiff. Eosenbauni vs. Drum, Com. Co., 146 App. 229. When one person obtains money of another which it is inequita- ble and unjust for him to hold, the person entitled to it may main- tain an action for money had and received for its recovery. Donovan vs. Pnrtoll, 216 111. 629; Gary vs. Niblo, 155 App. 338; Devine vs. Edwards, 101 111. 140; XI 111. Notes 438, §44. An action under the common counts for money had and received will not lie for breach of defendant's duty as an agent or broker, as in such case a special count averring the duty and the breach thereof, is necessary. Morris vs. Jamieson, 205 111. 87. Plaintiff assumes the burden of establishing by the evidence facts from which the law will draw the conclusion that the defend- ant had received money which in justice belonged to plaintiff and ought to have been returned. 111. Glass Co. vs. Chi. Tel. Co., 234 111. 535. In action to recover sum of money alleged to have been paid to defendants on a promise to return it if, upon an accounting, it should be found that plaintiff was not indebted to them, the bur- den of proof is upon plaintiff to show he was not thus indebted. Smith vs. Grant, 30 App. 150. In order to justify a recovery for payment made under duress, plaintiff must show not only that such payment was made under legal compulsion, but also that it is against equity and good con- science for defendant to retain the money. Koenig vs. People 's Gas Co., 153 App. 432. — Goods Sold ami Delivered: Recover}^ may be had under an executed contract and where nothing remains to be done but the ASSUMPSIT 133 payment of the purchase price for goods sold and accepted, plain- tiff may declare in indebitatus assumpsit. Olcese vs. Mobile Fruit Co., 211 111. 539. An acceptance may be shown by evidence of use of some of goods after commencement of suit. T. W. & W. Ey. Co. vs. Chew, 67 111. 378. In ordinary case of suit to recover for merchandise sold and delivered, it is not necessary to aver or prove that defendant was requested to pay and did not do so. Staudard Varnisli Co. vs. Jay, 149 App. 25. Under an indebitatus count in assumpsit or debt, the plaintiff may recover, although there be no evidence of a fixed price. Bay Lbr. Co. vs. Jenks, 20 App. 369. — Work and Services: Performance of the work contracted to be done under a contract may be proved under the common counts. Leach & Sons vs. Cons, Co., 110 App. 338; Hart vs. Carsley Mfg. Co., 116 App. 159. Medical services may be recovered under common counts. Co. of DeWitt vs. Spalding, 111 App. 364. "Board and lodging" are included within the meaning of "goods delivered and services performed." Berkowsky vs. Specter, 79 App. 215. Under a count for work and labor and materials furnished, and for money paid, laid out and expended, and for money had and received, the plaintiff cannot recover for work done for a third person by showing the defendant represented he held the money to pay for the same and promised to pay for the same upon the completion of the work, and that, relying upon such assurance, the plaintiff did complete the work. To recover on such state of facts, a special count is necessary, showing facts which estop the defendant from denying the truth of his representations. Maxwell vs. Longnecker, 89 111. 102. — Special Contract: While a contract continues executory, the plaintiff must declare specially, but when it has been fully per- formed on his part and nothing remains to be done under it except for the defendant to pay, plaintiff may, at his election, declare generally in indebitatus assumpsit and the special contract may be admitted in evidence under the common counts. Peterson vs. Pusey, 237 111. 204; Union Elec. Ry. Co. vs. Nixon, 199 111. 235; Foster vs. McKeown, 192 111. 339"; Galbraith vs. Chi. Iron Works, 50 App. 247; Chi. Exhaust Co. vs. Johnson, 44 App. 224. A special contract which has been so fully executed that noth- ing remains but to pay the amount due, may be admitted in evi- dence under the common counts. Sands vs. Potter, 165 111. 397; Adlard vs. Muldoon, 45 111. 193. And this though the contract is under seal, where it has expired by its own limitations and nothing remains to be done except to pay plaintiff. Anier. Splane Co. vs. Barber, 194 111. 171. Performance of special contract question for jury. Shepard vs. Mills, 173 111. 223. And literal compliance with the terms of a contract is not essen- tial to be shown to sustain a recovery under the common counts, 134 ASSUMPSIT provided there has been performance in substantial particulars, and there has been no wilful departure. Peterson vs. Puscy, 237 111. 204; Bauer vs. Hundley, 222 111. 319; Evans vs. Howell, 211 111. 85; Kleiuschnitter vs. Dorsey, 152 App. 598. AVhere plaintiff relies altogether on an express contract, he can recover thereon under the common counts only ])y proving a full performance on his part. Parmley vs. Farrar, 169 111. 606; Peoria vs. Fruin Cons. Co., 109 111. 36. — Building Contracts: "Where a building contract has been fully performed and the final certificate obtained and it only remains to pay the balance due, the contractor may sue and recover under the common counts, and the contract may be read in evidence for the purpose of showing its terms and to recover damages. Concord House Co. vs. O'Brien, 228 111. 360; Metal Fire Ins. Co. vs. Boyee, 233 111. 284. — Abandoned Contract: Where vv^ork was done under a special contract, which was subsequently abandoned by mutual consent, the amount due may l)e recovered under the common counts. Amer. Sand Co. vs. McGarry, 68 App. 333. — Obligation by Statute: An action which is founded upon an obligation created by statute cannot be recovered upon under the common counts; the declaration in such action must allege all the essential elements provided by the statute from which such obli- gation arises. Harty Bros. vs. Polkow, 151 App. 199. — Policy of Insurance: A policy of insurance is not admissible under a declaration containing only the common counts. Heffron vs. Eochester Ins. Co., 220 111. 514; Concordia Ins. Co. vs. Heffron, 84 App. 610; Supreme Lodge vs. Meister, 78 App. 649. Clauses in a policy which limit the liability of the insurer by way of proviso or exception are solely for his beneilt. He must intei-pose and prove the defense. The insured need not notice them in his pleading or proof to make a prima facie case. Supreme Lodge vs. Matejowski, 190 111. 142; Met. Ins. Co. vs. Mc- Keuna, 73 App. 286; Phenix Ins. Co. vs. Stocks, 149 111. 319. — Breach of Contract: "Where there has been a breach of con- tract and damages resulting therefrom, the party injured can- not recover upon an inelebiiatus assumpsit, but he must declare specially for damages for the breach of contract. Daugherty vs. Sclinipper, 157 App. 413; Phoenix Ins. Co. vs. Baker, 85 111. 410; Smith vs. Young, 179 App. 364. — Breach of Warranty: There can be no recovery in an action of general indebitatus assumjjsit where the claim is upon a war- ranty of a chattel, for such a declaration would not apprise de- fendant of matter he is to defend. Eussel vs. Gilmore, 54 111. 147, — Pay in Articles of Personal Property: Where there is an agreement to pay a certain sum in specified articles of personal property at agreed prices on a particular day, a failure to deliver the articles on the day fixed in the agreement converts the trans- action into a money obligation. McKinaie vs. Lane, 230 111. 544; Sleuter vs. Wallbaum, 45 111. 44. ASSUMPSIT 135 — Promissory Note: A promissory note is a(lmissi])le under the common counts, and execution cannot be denied in absence of veri- fied plea. Clark vs. Newton, 235 111. 530. A promissory note is admissible under the common counts upon proof of the maker's signature. Murcliie vs. Peck, 57 App. 396. A promissory note executed by two persons is, by statute, a joint and several obligation, and in suit against sui-ety alone, the note is admissible in evidence, notwithstanding the declaration declares against both maker and surety jointly, where the declaration also contained the common coujits, which declare jointly and severally. Harrison vs. Thackaberry, 248 111. 512; Boxburger vs. Scott, 88 111. 477. A promissory note and a guaranty are admissible in evidence under a declaration containing common counts only. Wilson vs. Hospital, 92 App. 413. — Partnership Account: Money advanced by one partner, not as a mere loan to the other, but in furtherance of the affairs of the partnership, the accounts of which are in dispute and unsetth^d, cannot be recovered in an action of assumpsit against the latter, who pleads such facts in defense. Hartzell vs. Murray, 224 111. 377. — Bent: If possession is delivered to the lessee and he occupies the premises during the entire period, nothing remaining to be done except to pay the amount due for rent, a recovery may be had under the common counts. Eiibens vs. Hill, 213 111. 523. General Issue : — -Maltirs Provable Generally: Under general issue in assump- sit, the defendant may give in evidence that the contract was void or voidable in law. Or if good in point of law, that it was per- formed by payment or otherwise; or if not performed, that there was some legal excuse for its non-performance, as a release or dis- charge before breach or non-performance by the plaintiff of a con- dition precedent. In short, the question in assumpsit upon general issue is whether there was a subsisting debt or cause of action at the time of commencing the suit. Formerly, matters in discharge of the action must have been specially pleaded; af tervv'ards, dis- tinction was made between express and imi)lied assumpsit. After- ward, it was universally allowed to be given in evidence under the general issue. Almost anything which goes to the discharge of a promise is admissible in evidence under the general issue, so any matter which shows that plaintiff never had cause of action may be given in evidence under plea of non assumpsit, and most matters in discharge of the action, which show that at the commencement of the suit, there was no subsisting cause of action, may be taken advantage of under the general issue. Evidence of recission of the contract sued on is properly admitted under the general issue. The plea of the general issue puts upon plaintiff the burden of not only proving the contract as alleged, ])ut also the breach as assigned in the declaration. Ward vs. Athens Mining Co., 98 App. 227. 136 ASSUMPSIT In action of assumpsit the general rule is that a defendant may- give in evidence, under the general issue, any matter which shows he was not indebted to the plaintiff, when the action was brought, and this is true whether the defense be that defendant was never indebted to plaintiff, or that the liability had been extinguished after it was incurred. Tender, the Statute of Limitations, alien enemy and some other defenses must be specially pleaded. There are a few special pleas that may be pleaded, but are not required to be, but usually not, where they amount to the general issue. Wilson vs. King, 83 111. 232 ; Iron Clad Dryer Co. vs. Bank, 50 App. 461. Any matter of defense arising after the commencement of the suit cannot be pleaded in bar of the action generally. If such matter arise after the commencement of the suit and before plea, it must be pleaded to the further maintenance of the action. But if it arise after plea, and before replication, or after issue joined, whether of law or of fact, then it must be pleaded pwu darrein continuance. Mount vs. Scholes, 120 111. 394; Delta Bag Co. vs. Kearns, IGO App. 93. In action for money had and received, under the general issue every equitable defense may be made ; defendant may claim every equitable allowance, etc., in short, may defend himself by every thing which shows that plaintiff ex aequo ct bono is not entitled to the whole of his demand or any part of it. Fay vs. Slaughter, 194 111. 157; Supervisors vs. Manny, 56 111. 160. A plea of general issue in action of assumpsit admits the capacity in which defendant is sued, together with a change of company name and assumption of liability as alleged in declaration. 111. Life Assn. vs. Wells, 200 111. 445. — Abandonment of Contract: That plaintiff assented to aban- donment of contract is admissible under general issue. McKenna vs. McKenna, 118 App. 240. — Payment: May be offered in evidence under general issue. Coulter vs. T. P. A. Co., 144 App. 255; O'Brien vs. O'Brien, 75 App. 263; Keyes vs. Fuller, 9 App. 528; Kassing vs. Int. Bank, 74 111. 16; Crews vs. Bleakly, 16 111. 20. In action of assumpsit for goods sold and delivered, payment is admissible under general issue, but set-oft' is not. Kennard vs. Secor, 57 App. 415. — Unlawful Contract: Evidence showing that a sale, promise or undertaking upon which suit is brought was unlawful is admis- sible under the general issue. Price vs. Burns, 101 App. 418. — Becmipment and Set-off: A defense of recoupment is ad- missible under the general issue. Hubbard vs. Eoche, 133 App. 602; Bauer vs. Jerolman, 124 App. 151; Hart vs. Carlisle Mfg. Co., 116 App. 159; Baker vs Faw- cett, 69 App. 300; XIV 111. Notes 551, § 37. But only to the extent of plaintiff's demand. Register Co. vs. Larash, 109 App. 236. Set-off must be pleaded or interposed under notice, recoupment may be had under general issue. Lloyd vs. Mfg. Co., 102 App. 551. ASSUMPSIT 137 But special damages cannot be recovered or recouped unless they are specially set forth in appropriate pleas. Koch vs. Merk, 48 App. 26. But set-off need not be specially pleaded where no affirmative relief is sought, but credit for payment. O'Brien vs. O'Brien, 75 App."263. Under a plea averring a breach of warranty, but alleging no damages therefrom, matters of set-off are inadmissible. Eegister Co. vs. Larash, 109 App. 236. The unliquidated damages that cannot be set off has reference only to unliquidated damages arising out of tort. Lloyd vs. Mfgrs. Ware Co., 102 App. 551. — Custom and Usage: When custom is introduced as an affivm- ative defense, or for the purpose of recoupment, it must be spe- cially pleaded. Leggatt vs. Sands Brg. Co., 60 111. 158; McCurdy vs. Alaska Conn., 102 App. 120. — Premature Action: Any matter may be given in evidence under the general issue which shows that defendant was not in- debted to plaintiff when action was brought. Harrison vs. Thackaberry, 248 111. 512; Wilson vs. King, 83 111. 232; Amer. Cent. Ins. Co. vs. B. & L. Assn., 81 App. 258. The cause of action must exist at the time of institution of suit, and where the demand has not matured and the general issue is pleaded, defendant may avail himself of the objection thereunder. It is always proper to show under a plea of non assumpsit plaintiff never had a cause of action. Bacon vs. Schepflin, 85 App. 553 ; Affd., 185 111. 122. Contra Amer. Merch. Mfg. Co. vs. Kantrwoitz, 77 App. 155. Where defense is that by a separate and subsequent agreement the time of payment fixed upon by the regular contract sued upon had been extended, such separate agreement should be pleaded in abatement. Pitt Sons vs. Bank, 121 111. 582; Culver vs. Johns, 90 111. 91. See also Grand Lodge vs. Eandolph, 186 111. 89, An extension of time and the giving of further day of payrnent by the creditor on a valid and binding agreement, with principal debtor, without assent of surety, may be given in evidence under general issue. Harrison vs. Thackaberry, 248 111. 512. — Failure and Want of Consideration: Under a plea of no con- sideration, or total failure of consideration, a partial failure of consideration cannot be shown, nor under a plea of total failure of consideration can it be shown there was no consideration. Stocks vs. Scott, 188 111. 266; Wadhanis vs. Swan, 109 111. 46; Car- linhour vs. White, 157 App. 431; Keelyn vs. Strider, 148 App. 238; Day vs. Milligan, 72 App. 324. Total failure of consideration and partial failure of consider- ation are separate and distinct defenses, and under plea of the former the latter cannot be proven. Chi. Trust Co. vs. Landfeldt, 73 App. 173. Failure of consideration cannot be shown without first showing the consideration. Independent Brewing Co. vs. Klett, 114 App. 1; Coding vs. McArthur Co., 181 App. 378. 138 ASSUIMPSIT Amount of partial failure must be shown. Topper \t;. Snow, 20 111. 435; Day vs. Miilligau, 72 App._324. ^ Under plea of partial or total failure of consideration, it may be shown that defendant was induced to execute the instrument sued on by false and fraudulent representations of seller as to value or character of commodity, which formed the consideration. Taft vs. Myerseough, 197 111. 600; Latham vs. Smith, 45 111. 23. But not breach of warranty. Leggatt vs. Brew. Co., 60 111. 158. Evidence is competent, under plea of want of consideration, to prove that notes in suit were asked for by plaintiff, and given by defendant as a matter of form of guaranty. Ind. Brg. Assn. vs. Klett, 114 App, 1. Failure of consideration in whole or in part must be pleaded. Eoliertson vs. Merriam, 106 App. 610; Leggatt vs. Sands Co., 60 111. 158. Contra Smith vs. Western Trust Co., 150 App. 587. "Where notes are introduced in evidence under common counts, want of consideration may be shown under general issue. Clarke vs. Newton, 235 111. 530; Morehouse vs. Fowler, 69 App. 50. Or failure of consideration. Wilson vs. King, 83 111. 232. But this where declaration contains common counts, only. Col. Heating Co. vs. O 'Halloran, 144 App. 74; Smith vs. Western Trust Co., 150 App. 587; Dickinson vs. Bank, 70 App. 405. — Banlx-ruptcij: P)ankruptcy must be pleaded. Horner vs. Spelman, 78 111. 206. — Statute of Frauds: Where declaration upon common counts only, and seeks to recover upon a contract which is within the statute of frauds, it is proper to rely upon that statute without pleading it, and advantage may be taken of it, on the evidence under the general issue. .. ;. Beard vs. Converse, 84 111. 512; Adams vs. Westlake, 92 App. 616. Where a contract is declared on specially, the statute of frauds must be pleaded. Hodges vs. Bankers Surety Co., 152 App. 372. And is not available by strangers to the contract. Green vs. Johnson, 151 App. 63. — Ultra Vires: The defense of ultra vires can be set up by a corporation only when it has been specially pleaded by it. L. St. l?y. Co. vs. Carmiehael, 184 111. 348; Chi. Tool Co. vs. Munsell, 107 App. 344. — Breach of Warra)ttii: Proof of breach of warranty, result- ing in partial or total failure of consideration, cannot be made under general issue, where declaration contains special counts on promissory notes. Col. Heating Co. vs. O "Halloran, 144 App. 74; Dickinson vs. Cit. Natl. Bank, 70 App. 406. But if declaration contains common counts only, such defense may be made in recoupment. Col. Heating Co. vs. O 'Halloran, 144 App. 74; Hoerner vs. Giles, 53 App. 540. In suit on note, the consideration for which was the delivery to makers thereof, by payees therein, certain merchandise, defendants filed general issue and special pleas, averring that goods were to be of certain quality and were so warranted, but that the goods ASSUMPSIT 139 were not of that quality, there was a breach of warranty constitut- ing failure of consideration. To render evidence of breach of war- ranty competent as constituting failure of consideration, the exist- ence of the warranty must be first established or proof that there were false representations knowingly made in regard thereto. Leggatt vs. Brew. Co., 60 111. 158. — Contracts of Guaranty: In action upon contract of guaranty, evidence of prejudice by want of notice is affirmative proof, ad- missible only when such defense has been specially pleaded. Mamerow vs. Natl. Lead Co., 98 App. 460. — Tender: A plea of tender is a conclusive admission, and defendant who files it is estopped from denying it, by the record. Momoe vs. Clialdeek, 78 111. 429; Co. oi: Jo Daviess vs. Staples, 108 App. 5.39. But rule is otherwise where tender before trial and not relied upon in pleadings. Explanation of reason for tender is admis- sible. Maekey vs. Kerwin, 222 111. 371. A party cannot plead a tender of a part of the sum declared for and at the same time maintain a plea of the general issue to the whole declaration. O 'Meara vs. Cardiff Coal Co., 154 App. 321. — Fraud and Circumvention: Evidence as to fraud and cir- cumvention is admissible only under a special plea, and not under plea of general issue. Cook vs. Pisaiio, 174 App. 609. — Insurance Contracts: The breach of a condition subsequent, if relied upon to avoid the policy, must be specially pleaded and proof of such breach is not admissible under general issue. Cont. Ins. Co. vs. Eogers, 119 111. 474. Breach of conditions in policy of insurance may be shown under general issue but a defense of misrepresentation in application, going to avoid the insurance, is not admissible under general issue, although the application and all the statements therein are ex- pressly incorporated in the policy by reference. Royal Neighbors vs. Sinon, 135 Ajjp. 599; Met. Life Ins. Co. vs. Zeigler, 69 App. 447. In action upon a fraternal benefit certificate, the defense that a member was addicted to the excessive use of intoxicating liquor is not admissible under general issue. Marren vs. N. A. Union, 145 App. 375. Defense of suicide is an affirmative defense. It is substantially a matter in confession and avoidance and should be pleaded. Supreme Tent vs. Steusland, 105 App. 267. Payment and release may be offered in evidence under general issue. Coulter vs. T. P. A., 144 App. 256. Under plea of non est factum, fraud in execution of an instru- ment may be offered. Mich. Life Ins. Co. vs. Vierra, 116 App. 476. In action on fire insurance policy defendant cannot avail itself of the defense of violation of the conditions of the policy by a change of possession, without specially pleading such defense, and 140 ATHEIST giving plaintiff an opportunity to set up by replication any matter of waiver or otherwise, which he might be able to present. Phoenix Ins. Co. vs. Caldwell, 187 111. 73. Defendant may show under general issue that after date of policy and before loss occurred, plaintiff had mortgaged the property, and same was still unpaid. Am. Cent. vs. Birds B. & L. Co., 81 App. 258. Or a breach of any of the covenants of the policy. West. Ins. Co. vs. Mason, 5 App. 141. A defense, in action on insurance policy, that the amount of recovery should not exceed the amount of the award fixed by arbi- tration, is not available under general issue. Funk vs. Fire Assoc, 157 App. 602. ATHEIST See Witnesses. ATTACHMENT Burden of Proof and Presumptions: Burden rests upon plaintiff' to establish ground of attachment stated in affidavit, when same is put in issue by plea in abatement. Jaycox vs. Wing, 66 111. 182 ; Wells vs. Parrott, 43 App. 656 ; Towle vs. Lamphere, 8 App. 399. A party wlio intervenes in action brought by attachment and claims the property attached, must show that he is owner of same. The burden of proof rests upon such claimant throughout the trial, and not uj)on plaintiff in attachment. Ilollenbach vs. Todd, 119 111. 543; Hutchinson Natl. Bank vs. Crow, 56 App. 558; Co. Natl. Bank vs. Canniff, 51 App. 579. By a preponderance of the evidence. Martin vs. Duncan, 47 App. 84. Where in suit in attachment a party interpleads, claiming owner- ship of same, fact that goods bore name of the defendant in attach- ment does not raise presumption that goods belong to him, unless goods were so tagged by and with consent of interpleader. O'Farrell vs. Viekrage, 163 App. 519. Admissibility of Evidence: — 1)1 General: Where one interpleads claiming property at- tached, any fact in disproof of his title may be shown under the traverse in the general replication. Hutchison vs. Crow, 56 App. 558. — Possession: Possession of property by attachment defend- ant is prima facie evidence of ownership. Kickham vs. Kane, 135 App. 628. — Affidavit Not Evidence of Inclehtedness: The affidavit for attachment, the bond and writ are not evidence of defendant's indebtedness to plaintiff. Yost Mfg. Co. vs. Alton, 168 HI. 564. — Acts of Ownership: An interpleading claimant of attached property may prove acts of his own tending to show a change in ATTESTATION 141 the character of his possession after he took possession, under a chattel mortgage, of the goods, which he had theretofore controlled as agent of the mortgagor. Martin vs. Dimcau, 181 111. 120. When, in an attachment suit, a third party interpleads claiming ownership of property attached, the transactions out of which the attachment suit grew, conducted without knowledge of interpleader, are inadmissible on trial of issues raised by the interplea. O'f'ariell vs. Vickrage, 163 App. 519. — Creditor at Time of Transfer: Where the attaching creditor seeks to impeach transfer of property by debtor, as for fraud, he must show that he was a creditor at time of transfer. Springer vs. Bigford, 160 III. 495; Com. Natl. Bank vs. Canniff, 51 App. 579. Evidence of indebtedness accruing at time long after an alleged voluntary conveyance of realty attached in aid is not admissible to show insolvency at date of conveyance, and so to invalidate con- veyance. Seaman vs. Bisbee, 163 111. 91. A judgment recovered in an attachment suit against a chattel mortgagor, and offered to show that plaintiffs were creditors, and as such entitled to attack the good faith of the mortgage transac- tion, is inadmissible for that purpose when judgment was rendered more than a year after the execution of the mortgage. Martin vs. Duncan, 181 111. 120. So failure by attaching creditor, who claims that a bill of sale by the principal debtor was fraudulent, to prove that he was a creditor of the debtor at time of transfer, is not remedied by the subsequent recovery of judgment against principal debtor in at- tachment suit, since the transferee, standing in attitude of stranger to record, was chargeable with no notice of attaching creditor's rights. Springer vs. Bigford, 160 111. 495. — Creditor Impeaching Deed: An attaching plaintiff introduc- ing in evidence, in interpleader proceedings, a deed from attach- ment defendant to the intei'venor, purporting to be for a certain consideration, does not thereby admit the validity of the deed, but may show by extrinsic evidence that there was, in fact, no con- sideration. Cassel vs. First Natl. Bank, 169 111. 380. So the testimony of a witness called by an attachment plaintiff in interpleader proceedings, that party interpleading had told him she paid for attached property the consideration specified in her deed thereto, is not conclusive upon attachment plaintiff. Cassell vs. First Natl. Bank, 169 111. 380. ATTESTATION See Acknowledgments, Wills. 142 ATTORiNEYS • ATTORNEYS See Privileged Communications. Judicial Notice: Attorueys licensed to practice in a court are judicially noticed by it. Weber vs. Powers, 114 App. 411; Kuehne vs. Gait, 54 App. 596; B. & L. Assn. vs. Fifer, 71 App. 295 ; XII 111. Notes 473, § 3. The court will take judicial notice that the members of a firm appearing in behalf of a party to a suit are regularly licensed attorneys at law practicing at the bar of the state. Ferris vs. Com. Natl. Bank, 158 111. 237. As Witnesses: — Compdency: An attorney who is called upon to give material testimony in a case with which he is connected, should withdraw from the case ; but the fact that he does not do so does not affect the competency of his testimony, but only the weight to be ac- corded thereto. Nix vs. Thackaberry, 240 111. 352; Bishop vs. Hilliard, 227 111. 382; Anstatt vs. Edel, 232 111. 201 ; Glanz vs. Ziabek, 233 111. 22 ; Grays vs. Lum. Co., 163 App. 231. Fact that a witness is assistant prosecuting attorney does not ren- der him incompetent. People vs. White, 251 111. 67. — Nominal Withdrawal: Courts are not inclined to give great weight to the testimony of an attorney who conducted tlie case for the defendants up to the time his testimony was required, where it was apparent from time the bill was filed that his testi- mony would be important to his clients and where there is good reason to believe that his withdrawal from the case to testify was merely nominal. Grindle vs. Grindle, 240 111. 143; Morgan vs. Eoberts, 38 111. 65; Eoss vs. DeMoss, 45 111. 448. Where a witness intimates in her testimony that the adverse attorney had attempted to induce her to give false testimony, it is not error to permit such attorney, though actively engaged in the trial, to be sworn and give his version of the matter without withdrawing from the case; but' such is not approved practice. Eeavely vs. Harris, 239 111. 526. — Attorney's Minutes: Although an attorney's minutes are not competent to supply the place of a lost deposition, and the witness being alive, it is not admissible to prove by others what he testified to in his deposition, it does not follow because the attorney's notes are not admissible as evidence, that exhibits referred to in his notes would not be competent evidence on a subsequent trial, or that the attorney could not testify to the contents of the lost exhibits, or refer to his notes for the purpose of refreshing his memory as in any other case. Stout vs. Cook, 57 111. 386. ATTORNEYS 143 Authority : — Fresiimption: In the absence of evidence to the contrary, it will be presumed that an attorney was authorized to represent a party. People vs. Parker, 231 III. 478; Patterson vs. N. Trust Co., 230 111. 33-1; Ferris vs. Com. Natl. Bank, 158 111. 237; Williams vs. P.iitler, 35 111. 544; Reed vs. Curry, 35 111. 53G; Neff vs. HuMi, 111 111. 100; Cigler vs. Keiiiath, 1(J7 App. 65, The presumption that an attorney who appeared in a case had authority to act, supported by the testimony of the generjd agent who had charge of the suit, showing his employment, is not over- come by other testimony denying he had authority. Famous Mfg. Co. vs. Wilcox, 180 111. 246. Where attorneys bringing a suit upon a promissory note, pro- duce the same at the trial, this, of itself, affords a strong presump- tion of their authority to sue upon it. W^oodward vs. Donovan, 167 App. 503; Eeed vs. Curry, 35 III. 536; Williams vs. Butler, 35 111. 544. The presumption of authority will prevail over the bare denial of the party, unsupported by affidavit. ' -■ People vs. Barnet T. P., 100 111. 332. In the absence of evidence limiting the power, an attorney of record is presumed to have all the general powers that the law infers from the relation of attorney and client. Cameron vs. Stratton, 14 App. 270. But otliorwise as to an attorney not of record, employed for ■some particular service in connectioji with the case at court, the party deals with such an attorney at the peril of want of authority. Cameron vs. Stratton, 14 App. 270. It must be presumed that the court knows its own officers, and under a power of attorney, authorizing an attorney at law to confess a judgment, would not and did not permit any person but an attorney of the court to act under autliority. Iglehart vs. C. M. & F. Ins. Co., 35 111. 514. The fact that an attorney at law prepares a bill in chancery in a party's name and signs the party's name and his own name to it is unmistakable evidence of the relation of attorney and client. Burnham vs. Eoberts, 70 111. 19. The presumption of authority of an attorney to act for a party in bringing a suit in the name of such party necessarily carries with it the presumption of the existence of such party. Woodward vs. Donavan, 167 App. 503. Fees and Services: — Riyht to Practice: If a person testify that he has practiced law in the particular territory in question for a period of years, this establishes iJ/Tma facie that he was duly licensed to practice. Markman vs. Forster, 170 App. 262. — Retainer Defined: A retainer is the act of the client in ein- ploying his attorney which prevents the latter from acting for his client's adversary. Union Surety Co. vs. Tenny, 200 111. 349. It is not necessary to a retainer that there be an express contract; the contract, like other contracts, may be express or implied. Johnson vs. Brown, 51 App. 549. 144 ATTORNEYS — Charged on Firm Books : Where a partner in a firm of at- torneys receives a retainer fee and conducts the trial of the cause, and charges the fee on the firm book, presumption is of retainer of firm, but such presumption may be rebutted. Harris vs. Pearce, 5 App. 622. — When Services Need Not he Proven: A recovery upon a spe- cial contract for retainer fee to an attorney may be had without proof of any services at all, or that the contract was fair and reasonable. The client cannot escape liability, for a stipulated retainer fee by merely electing to dispense with the attorney's ' 'union Surety Co. vs. Tenny, 200 111. 349. Where client settles case before attorney performs services, sum agreed upon cannot be recovered, but only actual value of services rendered. Pratt vs. Kerns, 123 App. 87. Client not authorizing employment of assistant by an attorney is not liable. C. & S. Trac. Co. vs. Flaherty, 222 111. 67. — No Special Contract: Where there is no agreement as to amount to be paid an attorney for his services, he will be entitled to a just compensation, to be determined by what is usually charged and paid for the same or similar services where contracts have been made with persons competent to contract, or if there is no usual charge for the particular services rendered, then a just compen- sation is wliat is fair and reasonable under all the facts of the particular case. Bingham vs. Sprnill, 97 App. 374. WTiere the only question is as to the amount due for attorney's fees, the proper question to be put to an expert witness is, what is the usual and customary charge for such services as were rendered ; but if there is no usual and customary charge for such services, it is proper to ask what such services were reasonably worth. A general objection to a question inquiring as to the fair and reasonable value of attorney's services is not sufficient to raise the question that the inquiry should be directed to what is the usual and customary charge for such services. Maneaty vs. Steele, 112 App. 19. To aid in determining what should be reasonable solicitor's fee for certain services, evidence may be introduced as to what is the usual and customary fee for similar services. Zetner vs. Kosminski, 171 App. 570; Nathan vs. Brand, 167 111. 607; Gilbert vs. Lloyd, 170 App. 436. But this is not essential where charge is not excessive. Kadison vs. Fortune Bros., 163 App. 276. A court may form an independent judgment, based on its own knowledge and the testimony of two reputable attorneys, as to what is a reasonable attorney's fee though there is no testimony as to what is the usual and customary charge. Zentner vs. Kozmiuski, 171 App. 570. AVhere the compensation is not fixed by contract, there is an implied contract for such reasonable fee as is usually paid for like services. Elmore vs. Johnson, 143 111. 513. ATTORNEYS 145 Where an attorney is anthorized to appear and assist in a case, the litigant is bound to pay what his services arc reasonably worth. Price vs. Hay, 132 111. 543. Where an attorney sues for his fee, he need not prove his pro- fessional competency further than to prove that he is in actual practice, there being nothing to prove malpractice. Artz vs. Robertson, 50 App. 27, Where an attorney seeks to recover for services under a con- tract for reasonable fees, evidence is not admissible to show that an attorney of one of the parties gave attention to the matter, it not appearing that the labor of the plaintiff was in any way lightened. Hutchinson vs. Dunham, 41 App. 107. What is a reasonable fee in a given case is a question of fact in view of the circumstances. Casley vs. Byers, 129 HI. 657. Wliich question of fact is to be determined by the weight of the evidence. Lemar Ins. Co. vs. Pennell, 19 App. 212. And the amount involved, as well as the labor, and skill required in the services is competent. Campbell vs. Goddard, 17 App. 385; Bruce vs. Dickey, 116 HI. 527. A question as to what would be a fair and customary charge for certain services by an attorney is properly refused in action by the attorney for fees, where a considerable portion of the services which plaintiff was emploved to perform is not included in the question. Fuchs vs. Tone, 218 111. 445. An allowance of a fee to an attorney as compensation for sign- ing an indemnity bond for his client cannot be sustained where there is a total absence of evidence in the record to justify the allowance. An allowance should be the usual charge for the services be- tween parties competent to contract, and the court should see that its decree does not represent the mere opinion of friendly attor- neys as to what would be proper in that particular case. McMannomy vs. C. D. & V. Ey. Co., 167 111. 497, Where the petitioner in condemnation elects not to take the property and dismisses its petition, proof that the attorneys for the defendant have rendered services, coupled with proof of what is a reasonable and just fee for such services, justifies an allowance for such fees, even though there is no proof that the defendants have paid any amount to the attorneys for their fees. Deneen vs. Unversagt, 225 111, 378. The introduction in evidence of a trust deed fixing the amount of an attorney's fee is prima facie proof of the reasonableness thereof. Dorn vs. Eoss, 177 111. 225. Expert opinion is inadmissible where the sei'vices are of such character that a certain charge has become customary, to show what the customary charge is for the particular service; this is a ques- tion of fact. L. N. A, & C. Ey, Co, vs. Wallace, 136 111. 87. But othei-wise where there is no customary charge, value often depends upon various considerations, as upon the skill and stand- Ev.— 10 146 ATTORNEYS ing of the attorney, the nature of the controversy, the question at issue, the importance of the suit, the responsibility in its manage- ment and the time and labor expended, as to which a practicing lawyer may testify as an expert. L. N. A. & C. Ry. Co. vs. Wallace, 136 111. 87. So, whether certain services and disbursements by an attorney were necessary, in accordance with good practice in the profession, is a question upon which a lawyer may testify as an expert. Artz vs. Eobertson, 50 App. 27. Testimony of attorne,ys as to the reasonableness of another at- torney's charge is in tlie nature of opinion and not binding upon the court. Lee vs. Loniax, 219 111. 218; Chi. Chair Co. vs. Kennedy, 141 App. 196. Where, in action for fees, a witness testifies that he was an at- torney on the opposite side of the case, stating the work done and the fees charged by him. it is proper, on cross examination, to ask if the sum charged by Inm was the usual fee for such services. Levinston vs. Sands, 7-4 App. 273, In action for fees by an attorney of two years experience where a witness testifies as to the usual compensation for such services, cross examination is j^roper which asks if the sum named is the usual compensation for the services of an attorney liaviug that lim- ited experience. Levinston vs. Sands, 74 App. 273. In action by attorney to recover for professional services, such services resulting in a favorable compromise of litigation, opinions of other attorneys may be received as to the value of such services rendered, but opinions as to the benefits of the compromise to the defendant in his 1)usiness in the future are not admissible. "While the amount involved in litigation may not improperly be considered in fixing the value of the services of an attorney in the case, which led to settlement of the matters in dispute, and the securing of certain rights and privileges to his client, yet it is not admissible to go into inqiury concerning prospective l)enefits which may accrue in the future to the client from such settlement. ;: In proving the value of legal services of an attorney in the defense of a suit, and attending to other matters, leading to a favor- able settlement of the litigation, it is not proper to present to the view of the .jury the settlements made with other persons by those settling with the client, either by direct evidence or by form of hypothetical questions to witnesses. It is not proper to show that the settlement with the client was much more favorable than with other parties. Such comparisons should not be permitted. Haish vs. Payson, 107 111. 365. Proof as to the regular per diem charges made by an attorney does not throw any light upon the value of services rendered by him in the matter of negotiating a consolidation of corporate interests. Hughes vs. Ferriman, 119 App. 169. — hi junction: Upon the dissolution of an injunction, allow- ance of damages for solicitor's fees is unauthorized where there ATTORNEYS 147 is no proof that defendant has paid or become lial)le to pay any solicitor's fees. Eeed vs. N. Y. Ex. Bank, 230 111. 50; Lawrence vs. Traner, 136 111 474. To show what is a reasonable fee, it is not sufficient to show what is the reasonable and customary charge merely ; the inquiry should be what is usually and customarily charged and paid for like serv- ices in the court where such services were rendered, where the fee is the subject of contract or where the matter is between parties competent to contract. Crane vs. Village, 157 App, 595. Negligence of: — Presumption: There is no presumption that an attorney is guilty of want of care arising merely from his failure to be sucess- ful. He is entitled to the presumption that he has performed his duty. Priest vs. Dodsworth, 235 111. 613. In action by attorney on note given by client, if there is no ques- tion of fraud or bad faith, but defendant claims damages caused by attorney's negligence in managing business, defendant has burden of proving such plea by a preponderance of the evidence. Priest vs. Dodsworth, 235 111. 617. In action by client against attorney for negligence in permitting a suit to be dismissed, only actual damages are recoverable, and plaintiff has burden of proving both the validity of the claim he lost and the solvency of the defendant in the suit, to entitle him to more than nominal damages. Goldizier vs. Poole, 82 App. 469. Dealings with Clients: — Presumptions: A contract made by an attorney with his client ill relation to an interest acquired by him in the subject matter of pending litigation is presumptively fraudulent. Fox vs. Fox, 250 111. 384; Eoby vs. Colehour, 135 111. 300, XI 111. Notes 491, § 95. A conveyance from client to attorney, pending the fiduciary rela- tion between them, will be regarded as constructively fraudulent, where fairness, adequacy and equity are not shown. Willin vs. Burdette, 172 111. 117; Eolfe vs. Eich, 149 111. 436. Where the relation of attorney and client exists between parties to a note and mortgage and fraud is charged, equity will treat the case as one of eonstrucive fraud unless the attorney shows fairness, adequacy and equity. Faris vs. Briscoe, 78 App. 242. One seeking the benefit of the rules that an attorney who pur- chases from his client the subject matter of the litigation, will be regarded as trustee for the client, and tbat for an attorney to acquire the subject matter of the litigation is presumptively fraud- ulent, must establish the relation of attorney and client existing with respect to the transaction. Francisco vs. Dove, 231 111. 402. Attorney has burden of proving client's deed to him to be abso- lutely fair. Day vs. Wright, 233 111. 218. 148 ATTORNEY'S OPENING STATEMENT The relation of attorney and client being one of special trust and confidence, the law requires that all dealings between them shall be characterized with the utmost fairness and good faith, and it scrutinizes all transactions between them. So strict is the rule, that dealings between them are held, as against the attorney, to be prima facie fraudulent, and the burden is not upon the client to establish fraud and imposition, but rests upon the attorney to show fairness, adequacy and equity. An attorney who bargains in a matter of advantage to himself with his client, is bound to show that the transaction is fair and equitable ; that he fully and faithfully discharged his duties to his client without misrepresentation, or concealment of any fact material to his client; that the client was fully informed of his rights and interests in the subject matter of the transaction, and the nature and effect of the contract, sale or gift, and was so placed as to deal with the attorney at arm's length. Dryenforth vs. Palmer Tire Co., 240 111. 25; Morrison vs. Smith, 130 111. 304; Mansfield vs. Wallace, 217 111. 610; William vs. Bur- dette, 172 111. 117. (See Fiduciaey Eelations.) ATTORNEY'S OPENINa STATEMENT Admissibility of Evidence to Disprove : Statement of counsel as to what he expected to prove does not have the weight of testimony and if no evidence is offered tending to prove the fact stated and referred to by counsel it is to be dis- regarded and hence evidence not otherwise competent cannot be admitted to discredit a statement which there is no attempt made to prove. Howard vs. 111. T. & S. Bank, 189 111. 568; Penn. Co. vs.'Baekes, 35 App. 375. AUTHENTICATION See Books of Account, Foreign Laws, Copies, Records, Certi- ficates, Handwriting. BAD CHARACTER See Character, Credibility, Impeachment. BAD FAITH See Good Faith. BAIL See Bonds, Recognizance. BANKRUPTCY 149 BAILMENT See Parol, Bills of Lading, Inn Keepers, Value. Breach of Contract: — Presumptions and Burden of Proof: In action of bailment for hire, as well as where the bailment is gratuitous, where it appears that the goods were placed in the hands of the bailee in good condition, that when they were returned, were in a damaged state, or were not returned at all, in an action by the bailor against the bailee, the law will presume negligence of the latter and impose on him the burden of showing that he exercised such care as was required by the nature of the bailment. The reason of the rule is that often bailor would have no means of showing how loss or injury occurred, or whether bailee had caused it by his negligence, while the facts would be within the knowledge of bailee, or he would know from what source they could be ascertained. Edgerton vs. C. R. I. & P. Ry. Co., 240 lU. 311; Funkhouser vs. Wag- goner, 62 111. 59; Cunimings vs. Wood, 44 111. 416; Bennett vs. b 'Brien, 37 111. 250 ; C. & A. Ry. Oo. vs. P. & P. U. Ry. Co., 157 App. 583; Sinsebaugh vs. Ry. Co., 149 App. 642; Vogelson vs. Fredkyn, 133 App. 356; Brewster vs. Weir, 93 App. 588; Hudson vs. Bradford, 91 App. 218. Possession by gratuitous bailee for own benefit and injury to res raises presumption of negligence. Apezynskl vs. Butkiewicz, 140 App. 375. "The bailee, when called upon for the article deposited, must deliver it or account for his default by showing a loss of it by some violence, theft or accident. When the loss is shown, the proof of negligence or want of due care, is thrown upon the bailor, and the bailee is not bound to prove affirmatively that he used reason- able care." Bryan vs. C, & A. Ry. Co., 169 App. 181. The production of a check claimed to have been given as a receipt for baggage is prima facie proof of delivery to and possession by the carrier issuing such check. Graham & Morton Co. vs. Young, 117 App. 257. Demand and Refusal: It is not necessary, in action of case for property lost by the negligence of the bailee, to prove a demand and refusal. Warner vs. Dunavan, 23 HI. 380. Question for Jury: Degree of negligence is for jury. Mayer vs. Brensinger, 180 111. 110; Saunders vs. Hartsook, 85 App. 55; Shelly vs. Kahu, 17 App. 170. BALLOTS See Contested Elections. BANKRUPTCY See Fraudulent Conveyances, Insolvency, Intent, Presump- tions, Assumpsit. 150 BANKS BANKS See Burden of Proof, Books ok Account, Judicial Notice, Custom and Usage. BASTAEDY PROCEEDINGS IN GENERAL: Civil: Prosecutions under the l^astardy net are civil and not criminal proceedings, a! I hough criminal in form. Scliarf vs. People, 134 111. 240; Maynard vs. People, 135 111. 416; Miiiijs vs. People, 111 111. 98; People vs. Noxou, 40 111. 30; Pease vs. Hubbard, 37 111. 257; Kanoiowski vs. People, 113 App. 468. But it is not an action " (\r contractu" nor is the foundation of the right of recovery a penalty. Seharf vs. People, 134 111. 240. Overruling Eawlings vs. People, 102 III. 475. Only the mother can make the complaint. Jones vs. People, 53 111. 366; Cook vs. People, 51 111. 143. WHO MAY MAINTAIN: Ncn-Resident : Under the statute relating to bastardy, a non-resident female may prosecute the putative father in the courts of this state. Seharf vs. People, 134 111. 240; Mings vs. People, 111 111. 98; Kolle vs. People, 85 111. 336; LaPlante vs. People, 60 Ai)p. 340. And fact that child was born in another country, and citizen thereof at time of trial is no bar to prosecution. " " People vs. Graft, 170 App. 309. Unmarried Woman: It is suthcient defense to show that the complaining witness was a married woman at time of birth of child. Vetten vs. Wallace, 39 App. 390; Baird vs. People, 66 App. 671. But not so as to time of making complaint. Marriage subse- quent to birth of child is no defense. People vs. Volksdorf, 112 111. 292; Eev. S. C, 12 App. 534. Woman married at time of conception cannot prosecute. People vs. Grinin, 142 App. 588; Vetteu vs. Wallaee, 39 App. 390. A jury may infer that the mother was an unmarried w^oman from the fact appearing that defendant paid his attentions to her as such. Cook vs. People, 51 111. 143. AVhere complaining witness testified that at time of trial she was unmarried, and spoke of. being- engaged to and expecting to marry defendant when the sexual intercourse took place, same is sufficient. LaPlante vs. People, 60 App. 340. So it may be inferred that the mother was an .unmarried woman where she spoke of herself as an unmarried woman, and of defend- ant as having kept company with her for a year and a half. Durham vs. People, 49 111. 233. The complaint is not competent for purpose of showing prose- BASTARDY 151 cutrix was an unmarried woman a I lime of conception and birth of child. I'lClir; ; . ;: Harrison vs. People, 81 App. 9o. i.' ;i: But where bond given by defendant for his appearance recited that complaint was made by a certain person, "an unmarried woman," such recital was held to be an admission that the mother of the child was an unmarried woman. Cook vs. People, HI 111. 143. ADMISSIBILITY OF EVIDENCE: Depositions : Are admissible. Eichardson vs. People, 31 111. 170. Offers of Oompromise : Are not admissible. Gelm vs. People, 87 App. 158. Complaint : Is inadmissible. Harrisou vs. People, 81 App. 93. Child: It is improper to inti-oduce the child in evidence for the pur- pose of showing a resemblance between it and the defendant. Eobuett vs. People, 16 App. 299. But at the request of a juror, the child was shown to the jury. It was not ofifered in evidence by the peoj^le. There was an effort made by defendant to prove the father to have been an Italian, and this perhaps justitied the court in complying with juror's request. Morrison vs. People, 52 App. 482. And the child may be permitted to remain in the court room during the trial, where it is not offered in evidence, nor exhibited to the jury, nor referred to in their presence. Eose vs. People, 81 App. 128. Naming" Child: Evidence is not admissible to show that the mother had named the child after the reputed father. Corcoran vs. People, 27 App. 638. Poverty of Mother : Improper to show. Corcoran vs. People, 27 App. 638. General Reputation: — Of FroseciUing Witness: The fact that prosecutrix is an unchaste woman is immaterial. Hobson vs. People, 72 App. 436; Scharf vs. People, 34 App. 400; Zimmerman vs. People, 117 App. 54; Holcomb vs. People, 79 111. 409. — Of Defendant: Proof is incompetent to show that defend- ant is father of another illegitimate child. LnPlante vs. People, 60 App. 340. Admissions of Defendant: — Naming Child: The fact that after the prosecutrix became prpgnant and defendant knew it, they had a conversation as to what name the child should have, is competent as a circumstance showing he felt he was the father. Jlobson vs. People, 72 App. 436. 152 BASTARDY — Unexecuted Agreement of Settlement: While an offer by way of compromise is not admissible in evidence against party making it, admissions of independent facts made in course of at- tempts to settle, are admissible, unless expressly stated as made without prejudice or in confidence. Alminowiecz vs. People, 117 App. 415; Miene vs. People, 37 App. 589; Moore vs. People, 13 App. 248. But a mere unaccepted offer to pay a sura in compromise of a claim is not admissible as admission and cannot be given in evi- dence. Gelm vs. People, 87 App. 158. Admissions of Prosecuting Witness: Admissions and declarations of prosecutrix are admissible for purpose of impeaching her, but her attention should be called to the testimony thus proposed to be given, during her examination as a witness, otherwise same is not admissible. Johnson vs. People, 140 111. 350. Overruling McCoy vs. People, 71 111. 111. Declarations before birth of child and recognition by relatrix of one as father other than defendant is proper. Zinunernian vs. People, 117 App. 54. And may show that prosecuting witness testified differently on a former trial. Conunon vs. People, 39 App. 31. But her self-serving statements during pregnancy, as to patern- ity, are inadmissible. People vs. Welch, 143 App. 191. Nor statements of prosecutrix as to necessity for becoming preg- nant to compel marriage. Johnson vs. People, 140 111. 350. Where counsel, on cross examination, proposed to inquire where complainant went, dined and passed the remainder of the day on which she said the child was begotten, and after the act, with view to show she had given different accounts of those matters, such proposed inquiry was properly excluded. Moore vs. People, 13 App. 248. Conception and Gestation: — Date: The exact date on which the child was begotten is immaterial, and though the relatrix is mistaken as to the date, yet, if the jury believe from the evidence that the defendant was the father of the child, they should find him guilty, as it matters not at what time he became so. Holcomb vs. People, 79 111. 409; Beck vs. People, 115 App. 19; Boss vs. People, 34 App. 21. So it is not essential that it should appear that the period of gestation was for the usual length of time, the evidence being otherwise satisfactory in that regard. Cook vs. People, 51 111. 143. It being proven that the woman gave birth to a child at a given date, it may be inferred that the child was born alive and is still living. Mann vs. People, 35 111. 467; Lewis vs. People, 87 App. 588. — Inquiry in General: Evidence that other persons had sexual intercourse with the prosecutrix, at or near the time the child was BASTARDY 153 begotten, is competent as tending to raise a doubt as to the patern- ity of the child. Holconib vs. People, 79 111. 409; Pike vs. People, 34 App. 112 j People vs. Gasner, 152 App. 54; Ziinnierinan vs. Peoi)le, 117 App. 54. After conception, particular acts immaterial. Hobson vs. People, 72 App. 436; Scharf vs. People, 34 App. 400. — Cross Examination: In this class of cases an innovation has been made on the strict rules of cross examination so far as to per- mit defendant to ask the woman whether, within the period of gestation, she had had intercourse with other men, for purpose of overcoming the probability of accused being the father. Holcomb vs. People, 79 111. 409. The mother may be asked if she has had intercourse with other men, if the inquiry is limited to the time when, according to the course of nature, the child might have been begotten. Holcomb vs. People, 79 111. 409. Error to refuse to require the mother to answer, on cross exam- ination, the following questions: "When was the last time you had your monthly sickness previous to the birth of the child ? Did you not, at defendant's house, in presence of Miss Preston, tease and pick at Wright ? Did not you, at the house of Isham Preston, a short time before you left defendant's house, in presence of Miss Preston, say you had a notion to kiss Charles Wright and see what he would do? Did not you, at house of defendant, in the month of July or August, go into the kitchen where Jack Baldwin was lying, and pull up your clothes and show him your legs, and look at him and smile?" Eobnett vs. People, 16 App. 299. Wliere child was born June 18, 1888, upon inquiry as to the paternity of child, questions for purpose of ascertainng whether or not prosecutrix had illicit intercourse with other men than de- fendant, between August 14 and September 18, 1887, proper. Pike vs. People, 34 App. 112. And where child was born September 20, 1886, inquiry improper as to conduct of prosecutrix in March, June and July of that year. Scharf vs. People, 34 App. 400. Evidence is relevant and admissible to show that mother had sexual intercourse with other men in period between beginning of shortest and longest known time of gestation. Pike vs. People, 34 App. 112. Defense should be allowed to show that witness for defendant and prosecutrix were on friendly and intimate terms and frequently in the society of each other prior to time of alleged intercourse. Majmard vs. People, 135 111. 416. Any circumstances tending to show that condition might have been caused by sexual intercourse with other men is properly ad- n itted in defense. Therefore, it is proper to permit witness to testify that about time of alleged pregnancy, he saw such woman out late at night wuth men and boys. Maynard vs. People, 135 111. 416. Where defendant shows gifts by another man to prosecutrix, obligation and gifts to other members of family are provable. Leek vs. People, 118 App. 514. 154 BASTARDY On issue involving question whether defendant had sexual inter- eonrse with prosecutrix it being shown, as a eircunistance against him, that he bought her a corset, it was competent for him to prove that the mother of the young woman sent an order to the girl's brother, requesting him to get a corset for his sister, and that, being unacquainted with corsets, he got defendant to get it for him. In such case, what passed between defendant and girl's brother was part of res gestae, and admissible in evidence. Maynard vs. People, 135 111. 416. Prosecution may show that defendant and mother rambled to- gether on summer evenings about time she became pregnant, and that no young man came to see relatrix except defendant. Curran vs. People, 35 App. 275. — Corroboration: Testimony of other young men, living at home of relatrix, that they had never had sexual intercourse with her, has been held competent under circumstances of case. Corcoran vs. People, 27 Apj). 638. Where prosecutrix testifies that intercourse was at a hotel, at which she stayed with defendant, and that defendant told her he had registered under other names, and in character of husband and wife, the hotel register, showing the registration stated, is relevant to corroborate her testimony. Seharf vs. People, 34 App. 400. Letters of defendant to rehitrix, which show intimacy and rela- tions between them, are admissible in corroboration of complain- ant's testimony. Seharf vs. People, 34 App. 400. Opinion and Expert: Upon question whether child had seen full or natural period of gestation, a physician may be allowed to give his opinion, based on appearance of child at trial. And on question whether more than seven months had elapsed between act of connection and birth of child, expert witness may be allowed to testify that in event the child had l^een a seven months child, and had been treated at its birth in the manner in which the evidence showed, its chances of survival would have been small. People vs. .Toliiison, 70 App. 634. WEIGHT AND SUFFICIENCY: Burden of Proof: The burden of establishing paternity of child is on complainant. Johnson vs. People, 140 111. 350; Peek vs. People, 76 111. 289. Mother Unmarried Woman: May be implied from evidence, when not directly stated. Alniinowicz vs. People, 117 App. 415; Durham vs. People, 49 111. 233. Degree of Proof: (hiilt of defendant is not to be established beyond reasonable doubt. A preponderance of the evidence is sufficient. Lewis vs. People, .82 111. 104; People vs. Chrisman, 66 III. 162; Alli- son vs. People, 45 III. 37; Mann vs. People, 35 111. 467; Gelm vs. Peoi.le, 8T A])p. 158; XI 111. Notes 559, §22. Credibility of V/itnesses : Is for the jury. Johnson vs. People, 140 111. 350; Lewis vs. People, 87 App. 588; MeFarlan.l vs. People, 72 111. 368 ; Kellev vs. People, 29 111. 287 ; Wilson vs. People. 26 111. 435. BEST AND SECONDARY 155 And it is improper lo instruct jury that if relatrix and defend- ant are exactly opposctl, one olf-sets the other, and ludess lliere is evidence giving a preponderance to plaintilf, tliey should tind for defendant. ' ', "^ Johnson vs. People, 140 111. 350; LaPlante vs. People, 60 App. 340. Overruling Mcl^'arlaiid vs. I'eople, 72 111. 3(58. And it is improper to instruct jury that the mother of the child is most likely to know who its father is. Hoindsolman vs. People, 52 App. 542. SETTLEMENT : Impeachment of Receipt: A receipt given, expressing to he in full settlement of case, is prima facie evidence of full settlement, so that hurden of assert- ing contrary is upon party seeking to impeach receipt, to he estal)- lished hy a preponderance of the evidence. iMeElbauey vs. People, 1 App. 550. And a release of defendant may be avoided hy. proving same was obtained by fraud or duress. Gurley vs. People, 31 App. 465. BATTERY See Assault and Battery, BEASTS See Animals. BENEFICIARIES See Insurance, Witnesses. BENEFIT ASSOCIATIONS See Insurance. BEQUESTS See Wills. BEST AND SECONDARY See Lost Instruments, Production of Documents, Copies, Age, Kecords, Letter Press Copies. 156 BEST AND SECONDARY IN GENERAL: Necessity of Production: The best evidence of which the nature of the case admits must be produced. Carter vs. Carter, 152 111. 434; Prentice vs. Crane, 234 111. 302; Anderson vs. Irwin, 101 111. 411; Farrell vs. Park Comrs., 182 111. 250 ; Mandel vs. Swan Land Co., 154 111. 177 ; Mariner vs. Saunders, 10 111. 113; XII 111. Notes 489, § 109. In determining what is the best evidence the nature of the case will admit of, and what is secondary evidence, regard must be had, to some extent, of the nature and character of the business to which the evidence relates, and the method of its conduct. P. C. C. & St. L. Ey. Co. vs. Chicago, 242 111. 178. The law only excludes such evidence as, from the nature of the case, supposes there is other evidence superior in grade or quality iu the power of the party to produce. Vigus vs. O'Bannon,' 118 111. 334; Mattingly vs. Crowley, 42 111. 300. Existence of Writing: It is competent to prove the existence or the fact of the execu- tion of a writing by oral testimony, without the production of the writing. Ashley vs. Johnson, 74 111. 392; Massey vs. Farmers' Natl. Bank, 113 111. 334. Document Beyond Jurisdiction: Where books are out of the state and beyond the jurisdiction of the court, and if produced could not be conveniently examine 1 in court, results of examinations by competent witnesses may be shown. Prov. S. L. Assn. vs. King, 216 111. 417; Smith vs. Peoria Co., 59 111. 412; Guaranty Co. vs. M. B. & L. Co., 57 App. 254. Where an original paper is in the hands of a third party, resid- ing out of the state, and he refuses to attach same to his deposition, when taken, on request to do so, a sworn copy taken by another person present, who attaches such copy to his deposition, is admis- sible in evidence. Fisher vs. Greene, 95 111. 94; McDonald vs. Erbes, 231 111. 295; Dreische vs. Jones, 133 App. 572. One who seeks to introduce copy of a written instrument, the original of which is beyond jurisdiction of court and in hands of a third person, must show in addition, that he has made due effort to obtain the original for use at the trial. McDonald vs. Erbes, 231 111. 295; Bishop vs. Amer. Pres. Co., 157 111. 284; Dickison vs. Breeden, 25 111. 1S6. Secondary evidence proper wiiere party against whom offered wrongfully placed writings in record of another court. Mount vs. Scholes, 21 App. 192. Or against party removing writing from state. Mitchell vs. Jacobs, 17 111. 234. Voluminous Documents: Where the results of voluminous facts contained in writings, or of the examination of many records and books, are to be proven, and the necessary examination of the documentary evidence can- not be conveniently or satisfactorily made in court, it may be made by an expert accountant or other competent person, and BEST AND SECONDARY 157 the results thereof proven by him, if the books, papers or records are themselves property in evidence. Welsli vs. 8huiuway, 232 111. 54. The evidence of a book-keeper, accountant or other person skilled in the work of that character, is competent to show footing of a column of figures or to show the result of any calculation from a complicated set of figures which cannot be readily carried in the mind of the jury, where the calculation is purely mathematical. Estate of Smythe vs. Evans, 209 111. 376; Guar. Tr. Co. vs. Mut.Bldg. Assoc, 57 App. 254. Where books and documents are voluminous, schedules show- ing data and results may be used by witness in testifying, but even in such case the originals should be at hand, so that the oppo- site party may have an opportunity to examine them to verify the correctness of such schedules. Doyle vs. I. C. E. E. Co., 113 App. 532; Keinke vs. Sanitary Dist., 260 111. 380. Whether or not the records or waitings show a certain fact can- not generally be proven by parol evidence unless the documents are in court. Welsh vs. Shiimway, 232 111. 54. Written Instruments in General: Secondary evidence of contents of a writing is inadmissible in absence of satisfactory proof of inability to produce. Yoimg vs. People, 221 111. 51; Massey vs. Farmers' Natl. Bank, 113 111. 334; Hazen vs. Pierson, 83 111. 241. Proof of loss and search is essential to admission of secondary evidence. Eeic'li vs. Berdell, 120 111. 499; Pardee vs. Lindley, 31 111. 174. Where destruction is not established, proof of diligent search in good faith is essential. Chicago vs. Mandel, 239 111. 559; Crane Co. vs. Tierney, 175 111. 79; Worthing vs. Hall, 153 App. 587; XII 111. Notes 492, § 130. Effort must be as thorough as if party would otherwise lose benefit of evidence. Prussing vs. Jackson, 208 111. 85; Eankin vs. Crow, 19 111. 626. Proof of execution of instrument must be as strict as if instru- ment itself were in court. Dagley vs. Black, 197 111. 53; Owen vs. Thomas, 33 111. 320. But proof of execution unnecessary where it would not be re- quired if original were produced. Palmer vs. Logan, 4 111. 56. Secondary evidence of contents of writing in hands of adver- sary inadmissible without notice to produce. Young vs. People, 221 111. 51; Wright vs. Eaftree, 181 111. 464; Strader vs. Snider, 67 111. 404. Failure to produce on notice is ground for admission of second- ary evidence. Suburban Ey. Co. vs. Balkwill, 195 111. 535; Bisho]) vs. Amer. Pres. Co., 157 111. 284; Marlow vs. Marlow, 77 111. 633. Wrongful Withholding or Destruction of Evidence : — In General: Where adverse party has possession or control 158 BEST AND SECONDARY of primary evidence and fails or refuses to produce same, resort may be had to secondary evidence. Mallow vs. Mallow, 77 111. G33; Mitchell vs. Jacobs, 17 111. 234; Eector vs. Eector, 8 111. 105. As where same has been removed from State and beyond adver- sary 's reach. Suburban Ry. Co. vs. Balkwill, 94 App. 454; Affd., 195 111. 535. When a party voluntarily destroys a written instrument, he cannot prove its contents by secondary evidence, unless he repels every presumption of a fraudulent design. Blake vs. Fash, 44 111. 303. — Effect: If such secondary evidence is imperfect, vague or uncertain, every intendment or presumption shall be against party who might remove all doubt by producing the higher evidence. Cartier vs. Troy Lbr. Co.," 138 111. 533 -^ Rector vs. Rector, 8 111. 105; Princeville vs. Hitchcock, 101 App. 588. But such inference does not mean that if primary proof were produced it would establish the facts alleged. Cartier vs. Troy Lbr. Co., 138 111. 533. (See Destruction, Suppres- sion AND Fabrication.) Lost or Destroyed Writing-: AVhere original instrument has been lost or destroyed or wrong- fully detained, and loss or destruction was not at instance or with consent of either party, secondary evidence is admissible to prove contents. Concord House Co. vs. O'Brien, 228 111. 360; Mavfield vs. Turner, 180 111. 332; Bishop vs. Amer. Pres. Co., 157 111. 284; Blakely Printing Co. vs. Pease, 95 App. 341; XII 111. Notes 491, § 125. In order to introduce secondary evidence it is not necessary that proof of loss be beyond the possibility of a mistake. Union Tel. Co. vs. Kemp Bros., 55 App. 583. But preliminary proof of loss is preliminary to introduction of secondary evidence. Pardee vs. Lindley, 31 111. 174. Any one wdio knows the facts may prove contents of lost paper, Rankin vs. Crow, 19 111. 62G. Where records are lost or destroyed, their contents may be proven bv verbal testimony. People vs. Cotton, 250 111. 338; Ashley vs. Johnf^on, 74 111. 392. PRELIMINARY PROOF: Discretion of Court: Preliminary proof, laying the foundation for introduction of secondary evidence of contents of lost instrument, is addressed to the court, and the court determines whetiier sufficient has been shown to peraiit secondary evidence to go to the jury, and recovery is had, ii at all, upon the instrument thus proved. Grimes vs. Hilliary, 150 111. 141. Determination of sufficiency is discretionary' with court. Florsheim vs. Palmer, 99 App. 559. Affidavits : Affidavits of persons not parties to suit, but who are competent witnesses, are inadmissible to prove loss of instrument sued on so as to permit secondary evidence of contents. McFarland vs. Dey, (39 111. 419; Becker vs. Quigg, 54 111. 390. BEST AxND SECONDARY 159 The party is required to give some evidence that such a paper once existed and that a hotut fide diliycnt search has l)(H'n unsuc- cessfully made. If it belonged to the custody of certain persons, or is proved or may be presumed to have been in their possession they must, in general, be called and sworn to account for it, if they are in reach of the process of the court. If the search has been made by a third person, lie must be called to testify respecting it. The affidavit of the party on question of loss of a paper may be admitted to exclude any presumption that he may have it in his possession; but those who may be .admitted as witnesses must tes- tify in the usual form in order that advantage of ci'oss examina- tion may be preserved. Becker vs. Quigg, 54 111. 390. Can only be made by part}^ to suit, his agent or altornev. Bauer vs. Glos, 244 111. 627. ,-, Except where deed lost made to antecedent grantee, preliminary proof may be made by such grantee. Pardee vs. Lindiey, 31 111. 174. An affidavit for secondary evidence of deed which stated that instrument was "not in the power of affiant to produce and use on trial of cause," suthcient. Spitzer vs. Schlatt, 249 111. 416. Likewise that the originals of such deeds are "each and all acknowledged and entitled to be recorded, and that such originals are each and all lost and destroyed, and not in power of complain- ant to produce, and not intentionally destroyed or disposed of for purpose of introducing copies." Ellison vs. Glos, 248 111. 275. But not an affidavit that all the deeds "were not so destroyed or disposed of." Scott vs. Bassett, 194 111. 602. Affidavit need not show that deed is lost and also not in power of party wishing to use it. "Culver vs. Waters, 248 111. 163. Cf. Scott vs. Bassett, 186 111. 98. Circumstances showing want of power to produce must be al- leged. Booth vs. Cook, 20 111. 130. Showing Purpose for Which Evidence Offered: When secoudarj^ evidence is offered as to contents of writing, it is clearly necessary for court to be informed in advance what is proposed to be proven, in order to pass intelligently on question of admissibility of evidence, and if this is not done, evidence may be properly excluded, Berkowsky vs. Cahill, 72 App. 101. Notice to Produce: — NecrssUij For: Fact of notice must be shown. Holbrbok vs. Township Trustees, 22 111. 539. Notice to produce a notice is not necessary in order to admit sec- ondary evidence of contents. If sent by mail, the address on the envelope may be regarded as a portion of notice showing to whom it was directed. Williams vs. Mut. Ins. Co., 68 111. 387; Prairie State Bank vs. Gor- rie, 64 App. 325; Ware vs. llursch, 19 App. 277. 160 BEST AND SECONDARY — Reasonable: To compel production of books to be read in evi- dence, the part}^ must have reasonable notice. First Natl. Bank vs. Mansfield, 48 111. 494; Field vs. Zemansky, 9 App. 479. — When Unnecessary: When paper or document wanted, if in existence at all, must be under control of party to suit, and is one which he must know will be indispensable to his adversary, notice to produce is not necessary. Con. Ins. Co. vs. Sogers, 119 App. 474; Dawes vs. Dawes, 116 App. 36 ; C. C. C. & St. L. Ey. Co. vs. Newlin, 74 App. 638. The rule that when a paper or .document is one which party must know will be indispensable to his adversary, notice to produce may be dispensed with, does not apply to papers which are not part of contract sued on, nor of performance of any duty imposed by such contract. C. C. C. & St. L. Ey. Co. vs.. Newlin, 74 App. 638. Notice not necessary where paper in court at time of trial. Field vs. Zemansky, 9 App. 479. Not essential where originals are lost. C. C. C. & St. L. E. Co. vs. Fatten, 104 App. 550. Where evidence shows instrument to have been destroyed, notice to produce is not essential. Ehode vs. McLean, 101 111. 467; Stadler Erg. Co. vs. Weadley, 99 App. 161. Where proof shows opposite party has not the instrument in his power, notice is not necessary to admit parol evidence of con- tents. Proof of loss is sui^cient. Taylor vs. Melrviin, 94 111. 488; Brew. Co. vs. Weadley, 99 App. 161; Wells vs. Miller, 37 111. 276. — When Served: Must be served long enough before trial to enable party to produce documents or make due search for them. C. C. C. & St. L. Ey. Co. vs. Newlin, 74 App. 638; Bushnell vs. B. H. Colony, 28 111. '204. — 3Iust he Specific: A notice to produce books and papers must describe the books and papers intended with sufficient particularity to enable party to determine what is wanted. Nusbaum vs. U. S. Brew. Co., 63 App. 35; Berkowsky vs. Cahill, 72 App. 101. Parol evidence cannot be received of contents of writing unless proper foundation has been laid for admission by notifying party in whose possession the writing is, to produce it upon trial, or by showing it has been lost or destroyed. Young vs. People, 221 111. 51; Y\^right vs. Eaftree, 181 111. 464; Wettig vs. Bowman, 39 111. 416; Holbrook vs. Trustees, 22 111. 539; Text Book Co. vs. Mackliorn, 158 App. 543 ; Pressed Brick Co. vs. Coe, 53 App. 506 ; XII 111. Notes 492, § 128. A party will not be allowed to give parol evidence of contents of paper in possession of adversary unless he had given him notice to produce same on trial. But if a deed has been recorded, a transcript may be introduced, the party swearing that original was not in his custody, and was beyond his control; or if party has voluntarily exhibited his deed in evidence, the instrument is under control of court and no notice to produce it is required. Ferguson vs. Miles, 8 111. 358. Certified copy of a deed may be introduced on oath of party BEST AND SECONDARY 161 offering it that original is losl. No notice to adverse party to pro- duce original is recjuired. Wettig vs. Bowman, :5!) 111. 41G. Parol proof of the contents of a letter in possession of opposite party is inadmissible unless party having possession has liad due notice to produce it. Wright vs. Eaftree, 181 111. 464; Young vs. People, 221 111. 51. Where a letter is destroyed, a copy is the best evidence, and notice to produce a copy should be required before testimony of the contents is permitted. Mut. Prot. League vs. Langsdorf, 126 App. 50. — Time: Whether the notice was served in time is a matter of sound discretion with the court as such question must always depend upon the peculiar circumstances of each case. Where it appears to the court that the party has the desired paper, notice to produce given on the trial would be sufficient; but when this does not appear, the notice should be served a reasonable time before the trial at which it is wanted. Cuminings vs. McKinney, 5 111. 57. Notice to a counsel two days before the trial to produce a paper to be used as evidence, and which he knew would be wanted, is sufficient, and if not produced, a copy may be read. Warner vs. Campbell, 26 III. 283. But two days' notice is not in time when it is admitted that the attorney upon whom it is served had not the document in his pos- session, and which is probably in a foreign state. Bushnell vs. Bishop Co., 28 111. 204. Where notice is given a day previous to the trial to produce a paper which is eighty miles distant, and in the control of another person, the court will not take judicial notice that the paper could not have been obtained and so exclude secondary evidence. Cody vs. Hough, 20 111. 43. — Form: A party is not bound to pay any attention to a ver- bal notice to produce a paper on the trial of a cause, where notice is required to be served before trial. The notice should be in writ- ing, that the party may know with certainty and precision what paper is wanted ; and he shall not be compelled to rely upon his memory alone for its identity. Cummings vs. McKinney, 5 111. 57. — Person to Be Served: Notice to produce may be given the party himself or his counsel. Bishop vs. Amer. Pres. Co., 157 111. 284. — Proof of Contents of Notice: A party may prove contents of notice served upon the opposite party without first giving notice to produce the original. Brown vs. Booth, 66 111. 419. — Aetion or Pleading as Notice: Where the plaintiff's suit is founded upon a written instrument described in his pleading, the suit itself is sufficient notice to defendant to produce the original if in his possession, although the pleading does not charge him with the possession of it. Life Ins. Co. vs. Eogers, 119 111. 474; Stadler Brew. Co. vs. Wead- ley, 99 App. 161 ; Jack vs. Eowland, 98 App. 352. Ev.— 11 162 BEST AND SECONDARY Loss of Original: Secondary evidence is not admissible in absence of proof that the original document was ever in existence. Crane Co. vs. Tieniey, 175 111. 79; Mariner vs. Saunders, 10 111. 113. Under section 36 of Conveyance act (R. S. 1874) preliminary proof for introduction of secondary evidence of a deed must show that the original is lost or destroyed or not in the party's control, and that, to the best of the latter 's belief, it was not disposed of for the purpose of introducing a copy. Scott vs. Bassett, 174 111. 390. Wliere the existence of a deed or other writing is directly in- volved, whether as proof of the precise question in issue or of some subordinate matter that tends to establish the ultimate fact or facts upon which a case turns, such deed or other writing itself must be produced or its absence accounted for, before secondary evidence of its contents is admissible. Massey vs. Bank, 113 111. 334. In an action of ejectment by a purchaser of land, under execu- tion sale, the affidavits of plaintiff, and the clerk of circuit court, from which the execution was issued, are competent preliminary evidence of the existence and loss of the execution. Keith vs. Keith, 104 111. 397. There is no error in the exclusion of parol evidence tending to prove the execution of a deed of trust under which a sale was claimed, when no proper foundation is laid by proof of loss and search for original. Eeich vs. Berdel, 120 111. 499. It is error to admit copy of lease in evidence where loss or destruction of original is not shown, or that it was in the posses- sion of the adverse party. Anderson vs. Jacobson, 66 111. 522. "When a deed is destroyed or lost, secondary evidence or an in- ferior grade of evidence" is admissible to establish fact which would be most satisfactorily established by production and proof of original deed itself. The highest degree of this secondary evi- dence is the record of the deed in the recorder's office when such record exists; and the next is an examined copy of the deed, and last of all, parol evidence of contents of the deed. Bennett vs. Waller, 23 111. 97. Resort must always he had to the best evidence within the power of party by which tlie fact is capable of proof, and if it is in writ- ing the original must be produced, unless it is shown that it is destroyed, lost or not within the power of the party to produce it, before secondary evidence can be received of its contents. Matteson\-s. Noyes, 25 111. 591 ; Chisholm vs. Lumber Co., 18 App. 131. It is not competent for plaintiff to introduce his own testimony to jury to prove loss of instrument, in order to admit secondary evidence of contents. Proper course is to present affidavit of loss to court and then secondary evidence may be admitted as to con- tents. Dormady vs. State Bank, 3 111. 236 ; Palmer vs. Lyon, 4 111. 59. In order to admit secondary evidence, proper foundation must BEST AND SECONDARY 163 be laid, showing papers to have been destroyed, and a thorough search made in good faith for them. Prussing vs. Jackson, 208 111. 85; McNemar vs. McKennan, 79 App. 354. The highest and most satisfactory degree of secondary evidence is an office copy or certified copy of a deed, from tlie recorder's office, and when such certified transcript of the record of a deed is offered, the statute dispenses with tlie strict proof of loss of the original, which is recpiired by common law, and the party is only required to satisfy the court that it is not in his power to pro- duce it, as where it is shown to be in the possession of the oppo- site party who, upon proper notice, refuses to produce it. Mariner vs. Saunders, 10 111. 113; Wettig vs. Bowman, 39 111. 416; Newsom vs. Luster, 13 111. 176. Due Search: Where evidence of destruction is not conclusive, plaintiff must show that diligent search has been made in those places where it would be most likely to be found, if in existence. Palmer vs. Logan, 4 111. 57. Search for a paper, in order to let in secondary evidence, must be made at the place where it would naturallv be found. Doyle vs. Wiley, 15 111. 576; Eankin vs. Crow," 19 111. 626. Where a paper has a particular place of deposit, such place must be searched. Cook vs. Hunt, 24 111. 536; Mariner vs. Saunders, 10 111. 113. Every remote possibility of existence need not be negatived. Mayfield vs. Turner, 180 111. 332. '.ii tuilt J..' . It is for the court and not for the party to draw conclusions whether or not it is in his power to produce the original ; and it is the duty of the party to state the facts and circumstances from which the court may be enabled to draw correct conclusions on the subject. He must show the court that he has in good faith made every reasonable effort to produce the original, and he must show in detail what those efforts have been. These facts must appear to the satisfaction of the court. Booth vs. Cook, 20 111. 130. Person in whose possession instrument was last must be called, and if that is impossible, search among his papers must be proven. Prussing vs. Jackson, 208 111. 85 ; Mullanphy Sav. Bank vs. Schott, 135 111. 655; Hedenberg vs. Nash, 144 App. 252; XII 111. Notes 493, § 132. Except where destruction is shown. Ehodes vs. McLean, 101 111. 467. AVhere deed never recorded, search of recorder's office unneces-' sary. Dugger vs. Oglesby, 99 111. 405. Same strictness not required to let in proof by certified copies as where parol proof is desired. Newsom vs. Luster, 13 111. 176. One who seeks to introduce copy of written instrument, original of which is beyond jurisdiction of court, and in hands of tliird person, must show, in addition that he has made due effort to obtain original for use at trial. McDonald vs. Erbs, 231 111. 295; Bishop vs. Amer. Pres. Co., 157 111. 284; Dickison vs. Breeden, 25 111. 186. 164 BEST AND SECONDARY — Weight and Sufficiency: Testimony that original is not in party's possession and that same was not destroyed is not suf- ficient, as original might not be in his manual possession and yet within his control. Scott vs. Bassett, 174 111. 390. Evidence of non-possession alone is not sufficient. B. & O. S. W. Ey. Co, vs. Brubaker, 217 111. 462. Proof of destruction of deed without recording sufficient. Sawyer vs. Cox, 63 111. 130, Preliminary proof for purpose of laying foundation for intro- duction of secondary evidence of contents of deed, party proved that the deed, when last seen, was most probably in the possession of a person named, and that latter had made a most diligent search for it in every place where there was the slightest possibility it would be if still in existence, but without success. The witness also stated facts showing, beyond reasonal)le doubt, that the deed must have been destroyed in the fire which occurred in Chicago in 1871, and which destroyed all record of prior deeds, as this one was: Held, this w^as sufficient foundation for the introduction of secondary evidence of the contents of the deed. Beidel vs. Egan, 125 111. 298, An affidavit for introducing secondary evidence of deeds is not sufficient which merely shows that the deeds are not and have not been in the possession, custody or control of affiant, that affiant has made inquiry of the grantees but has not received any of the deeds, and that he does not believe such deeds have been lost or destroyed or disposed of for purpose of introducing copies. Scott vs. Bassett, 186 111. 98. The loose statements of a party that he had heard that the rec- ords of a court were destroyed, or had read it in a newspaper, is not sufficient to admit secondary evidence of a judgment. Wies vs. Tiernan, 91 111. 27. In ejectment suit, where attorney testifies that he had original notice to quit in his possession, but it was mislaid or lost, and he had searched for it but was unable to find it, a copy of such notice may be admitted. Naughton vs. Soucy, 245 111. 225. Where satisfactoiy evidence is made of the loss or inability of a party to produce an instrument for which the law does not make provision for recording, copying, etc., and the evidence fails to disclose the existence of any copy or other evidence better than parol, known to the offering party, within his power to produce, and there is nothing appearing to indicate a copy, or fraud or deception, then the presumption arises that there is no copy of other evidence better than parol, and a prima facie case is made for the admission of parol testimony of the contents of the instru- ment, unless party objecting produces better evidence, or shows that it exists and might have been produced by party offering it. C. C. C. & St. L. Ey. Co. vs. Newlin, 74 App". 638; Miit. Protective League vs. Langsdorf, 126 App. 572; 111. Land Co. vs. Bonner, 75 111. 315; Ellis vs. Huff, 29 111. 449. An affidavit reciting that affiant is agent and attorney for com- plainant and that complainant desires to use certain deeds, stat- BEST AND SECONDARY 165 ing that orig^iiials of such deeds are acknowledged and entilled to be recorded, that such originals are lost and nut in power of complainant to produce, and that they were not inteulionally destroyed or disposed of is sutideieut to entitle such copies to admis- sion. Ellison vs. Glo.s, 24S 111. 275, Examination of Witnesses: Where tlie proof otl'ered to lay the foundation for secondary evidence of a deed is by oral testimony instead of by affidavit, op- posing counsel may test statements of Witness by proper cross examination. Scott vs. Bassett, 174 111. 390. Where an affidavit for the introduction of a certified copy of a deed is positive in its terms and meets requirements of statute, opposite party is not entitled to cross examine affiant as to the truth of the affidavit. Glos vs. Garrett, 219 111. 208, Degrees of Secondary Evidence : If, from the nature of the case itself, it is manifest that a more satisfactory kind of secondary evidence exists, the party will be required to produce it; but where the nature of tlie case does not, of itself, disclose the existence of such better evidence, the objector must not only prove its existence, but also prove that it was known to the other party in season to have been produced at the trial. Wilson vs. S. P. C'onirs., 70 111. 46. On loss of original, party may read a counterpart; if there is no counterpart, an examined copy; or if there is not an exam- ined copy, he may give parol evidence of its contents. Eankin vs. Crow, 19 111. 626. Next best obtainable evidence must be produced. Where it appeara that there is in existence no other writing or memorandum, parol proof may be resorted to. Felix vs. Caldwell, 235 111. 159. To prove the contents of a written instrument, the vague recol- lections of witnesses are not sufficient to supply its place. Winter vs. Dibble, 251 111. 200. The highest degree or grade of secondary evidence of a deed is the record of the deed in the recorder's office; and the next is an examined copy of the deed, and last of all, parol evidence of contents of the deed. Bennett vs. Waller, 23 111. 97; Mariner vs. Saunders, 10 111. 113. Where it is shown there was copy of an instrument, such copy must be accounted for before parol is admissible, 111. Land Co. vs. Bonner, 75 111. 315, Degrees and grades of secondary evidence exist and best access- ible evidence must be produced, whether it be of primary or sec- ondary character. Mariner vs. Saunders, 10 111. 113. Superior degrees of secondary evidence take precedence in order of admissibility. C. C. C. & St. L. Ey. Co. vs. Newlin, 74 App. 638. 166 BEST AND SECONDARY PRIVATE WRITINGS: Newspapers : In action for slander and libel, a printed copy of the alleged slanderous article is inadmissible as secondary evidence where proper foundation has not been laid. Prussing vs. Jackson, 208 111. 85; Strader vs. Snyder, 67 111. 404. Abstract of Title: Affidavit for introduction of secondary evidence in form of ab- stract of title must not only state that original deeds or instru- ments have been destroyed, but also that the records thereof have been destroyed. Bauer vs. Glos, 244 111. 627. And such affidavit must be made by party to suit or his agent, and the relation of agent must appear from the affidavit itself. Bauer vs. Glos, 244 111. 627. Letters and Letter Press Copies: Wliere non-production of original is accounted for, the best available evidence of contents should be admitted. West Pub. Co. vs. Lasley, 165 App. 256. In a case where proper foundation is laid for the proof of the contents of a lost writing, the fact that the witness cannot tell particularly the contents is no ground for the rejection of his tes- timony. He may, in such case, give his best recollection of the contents. Case vs. Lynian, 66 111. 229. And it is sufficient to enable a witness to testify to the contents of the instrument where he states he saw it signed, had it in his possession more than a year, and knew its contents, without stating he had read it. Huls vs. Kimball, 52 111. 391. Upon proof that instruments offered are true copies and of notice to opposite party to Avhom they were sent to produce the originals, copies are admissible. Richards Iron Works vs. Glennon, 71 111. 11. Contents of a letter may be shown by parol, upon laying proper foundation for secondary evidence. Doggett vs. Greene, 163 App. 369. Parol proof of contents of a letter is not admissible unless proper foundation has been laid by notifying party having possession of letter to produce it upon the trial, or by showing it was lost or destroyed. Young vs. People, 221 111. 51; Ober Brg. Co. vs. Adams, 35 App. 540. A letter press copy of a writing is not an original. It in no wise differs from any other accurate copy than in mode in which it is made, and can be used in place of original in no case where a proved copy made in another manner would not be equally admis- sible. King vs. Wortington, 73 111. 161; Text Book Co. vs. Mackhorn, 158 App. 543. A proper foundation for admission of letter press copies of let- ters from plaintiff to defendant is laid where notice to produce originals is given defendant, whose counsel admits he cannot pro- BEST AND SECONDARY 167 duce them, and plaintiff testifies to correctness of the copies, and that the originals were mailed to ad(hH'ssee. Union Siuety Co. vs. Tenny, 2U0 J 11. 348. A copy of a letter, the original not shown to have been mailed or received, is not adinissil)le on behalf of writer. Booth vs. Steffy, l.-^O A]ip. 584. Sale of Mortgaged Property: Though statute requires written consent to mortgagor's sale of such property, evidence of verbal consent is admissible on behalf of purchaser. Anderson vs. Brew. Co., 173 111. 213. Memorandum : A mere memorandum containing a quantity of figures and cal- culation is not a contract, agreement or writing which can only be proven by its production. It does not fall within the reason nor rule of law requiring the production of documentary evidence. It is only a mere calculation of amounts, as to which any witness who had seen and remembered them might testify. Weaver vs. Crocker, 49 111. 461, Telegram : The original telegram filed in sending office is best evidence of its contents, and the copy retained for files of receiving office is not admissible where it is not shown it was a copy of the original or that the original was lost or destroyed. Young vs. People, 221 111. 51. (See Telkgrams.) Deeds : Sworn copv is good secondary evidence of lost deed. Golden vs. Bressler, 105 111. 419. AVhen original deeds, as well as record books, have been de- stroyed, resort may be had to secondary evidence to prove contents. Miller vs. Shaw, 103 111. 277. Affidavit to lay foundation for secondary evidence must show original instrument was not intentionally destroyed. Bauer vs. Glos, 244 111. 627. An affidavit for introducing secondary evidence of deeds is not sufficient which merely shows the deeds are not and have not been in possession, custody or control of affiant; that affiant made inquiries of grantees but has not received any of the deeds; and that he does not believe such deeds have been lost or destroyed or disposed of for purpose of introducing copies. Scott vs. Bassett, 186 111. 98; B. & O. Ry. Co. vs. Brubaker, 217 111. 463; People vs. Weimers, 225 111. 17. The execution of a deed cannot be shown by secondary evidence unless the fact of the loss or destruction of the alleged deed is first proven. Switzer vs. Honn, 254 111. 621. An affidavit which states instruments "are not within power of affiant to produce and use on trial of above cause" is in substantial compliance with the statute. Spitzer vs. Schlatt, 249 111. 416. The substance of a lost paper ought to be proven satisfactorily. 168 BEST AND SECONDARY its contents must have been known to the witness and understood by him, so as to not leave any doubt as to its material parts. Eaiikiii vs. Crowe, 19 111. G26. Tlie execution of tlie instrument nuist be strictly proven as if the instrument itself were in court. Dagley vs. Black, ]97 111. 53; Mariner vs. 8aiuiders, 10 111. 113; Crane vs. Tierney, 175 111. 79. Record of Unacknowledged Instrument: Certified copy of record of an unacknowledged instrument is incompetent as secondary evidence. Winter vs. Dibble, 251 111. 200. But a deed which has been on record more than tliirty years is an ancient deed, and a certified copy thereof is admissible in evi- dence although the deed was not acknowledged as required by the law in force when it was executed. Bradley vs. Lightcap, 201 111. 511. Private Books: Parol evidence of the contents of the private books of a party, without any basis being made therefor, is incompetent. Walker vs. Douglas, 70 111. 445. Contracts : A contract in writing is the best evidence of its terms, and it is error to allow in evidence what purports to be a copy of the con- tract from a volume of court reports. Hoyt vs. Shepard, 70 111. 309; Crane Co. vs. Tierney, 175 111. 79. Upon failure of wife upon notice to produce a written ante- nuptial contract in her possession, parol evidence of the contents admissible. Spencer vs. Boardman, 118 111. 553. Articles of Partnership: A stranger may prove a partnership l\y the acts and admissions of the partners, although written articles of partnership may exist between them. Bridge Co. vs. Shannon, 6 111. 15. Architect's Certificate: Upon loss of architect's certificate, contents of same may be proven by secondary evidence. Apart. House' Co. vs. O'Brien, 228 111. 3G0. Duplicates and Copies: Instruments executed in duplicate are both primary evidence, and if one of the duplicates is unaltered, then there is still orig- inal evidence of the contract, although the other duplicate has been destroyed or altered. Hays vs. Wagner, 220 111. 256. An instrument given by one party to the other as a copy or duplicate of the original, and accepted by him as such, is, as be- tween the parties thereto, of equal authenticity with the original and next to the original, the best evidence and should be produced or its non-production accounted for before resorting to parol evi- dence. White vs. Hermann, 62 111. 73. Where an original paper is in the hands of a third person, residing out of the state, and he refuses to attach same to his BEST AND SECONDARY 16eople vs. Pritchard, 149 111. 50; Tucker vs. People, 117 111. SS. When a tirst wife is living before a second marriage, there is a presumption of continuance of life. Hoch vs. People, 219 111. 205. Question of Law and Fact: Fact of marriage is question for jury. Sokel vs. People, 212 Jll. 238, Validity of Marriage: The former marriage must have been a valid one. Canale vs. People, 177 111. 219; Ililer vs. People, 156 111. 511. And its validity is to be determined by the lex loci contractus. Canale vs. People, 177 111. 219; xMcDeed vs. McDeed, 67 111. 545. When, by the law of the place of cohabitation, the provisions of the marriage laws must be complied with, non-compliance ren- ders the marriage void. Canale vs. People, 177 111. 219. Thus a marriage between parties who, at the time, were under the age prescribed, is absolutely void. Canale vs. People, 177 111. "219. Where the evidence shows that people were frequently married at a certain age in foreign country, the fact of the celebration of the marriage, if followed by cohabitation, raises a presumption that it was lawful. Sokel vs. People, 212 111. 238. When the relation of husband and wife has been assumed, the law generally presumes in favor of a lawful marriage. Lowry vs. People, 172 111. 466. Where it is charged that two successive marriages have taken place, the presumption of the legality of each is equal. Lowry vs. People, 172 111. 466. Where a first marriage is proven, there is a presumption in favor of its validity. Hoch vs. People, 219 111. 265. Bigamy is not presumed, but the presumption is in favor of innocence, and of the legality of the marriage which was formally solemnized. Murphy vs. People, 213 111. 154. Capacity of Accused to Contract: Proof of celebration of marriage once shown, the contract of marriage, the capacity of the parties, and every other fact neces- sary to the validity of the marriage will be presumed, but such presumption is not conclusive. Barber vs. People, 203 111. 543 ; People vs. Shaw, 259 111. 544. Proof of a public, ceremonial first marriage in a foreign coun- try, performed by one in holy orders, followed by cohabitation of the parties as man and wife, raises the presumption that ac- cused was capable of contracting marriage under the laws of such country. Sokel vs. People, 212 111. 238. BIGAMY 177 Presumption as to Compliance with Law: It is the general rule that if the eek'l)ration of the marriage is proven by witnesses who were present, it is not neeessary tliat any preliminary steps, reipiired by law, should also be shown, as it is presumed the officiating person performed his duty. Caiuile vs. People, 177 111. 2iy. .,•:, But this presumption does not prevail where there is direct and positive proof as to the invalidity of the marriage. Canale vs. People, 177 111, 219. Record Evidence : It is not necessary to prove either of the marriages by the reg- ister or certificate or other record evidence. Lowiy vs. People, 172 111. 466. Ecclesiastical Ceremony : Proof that a marriage in a foreign country was solemnized in a church by the officiating clergyman according to the rites of such church, is sufficient to establish the marriage, in absence of proof of the marriage laws of that jDlace. Canale vs. People, 177 111. 219. It is requisite to the admission of church records that it shall be made to appear that the entries were made by the person whose duty it was to make them. Murphy vs. People, 213 111. 154. Admissions of Accused: " Fact of marriage may l^e established by admissions of defendant. Lowry vs. People, 172 111. 466. Where an indictment for bigamy charges the second marriage to have been made in a certain other state named, and subsequent cohabitation with the second wife in this state, the admission of defendant that he married her is not sufficient proof of the mar- riage in such other state, which is necessary to be proven as charged; nor is such admission sufficient evidence of a marriage in this state. Tucker vs. People, 117 111. 88. Admissions as to cohabitation and reputation, without any admissions of a marriage in fact, are not sufficient to prove a mar- riage. Lowry vs. People, 172 111. 466; Hiler vs. People, 156 111. 511. Letters and Conversations: Letters of defendant to former wife, while they were living together, are admissible to show fact of prior marriage. Tucker vs. People, 122 111. 583. Conversations of parties are competent. Tucker vs. People, 122 111. 583. Opinion Evidence: Opinions of witnesses that parties were married is inadmissible. Sokel vs. People, 212 111. 238. Certificate of Person Officiating: Certified copies of records of county clerk, of the certificate of person who performed the marriage ceremony, indorsed on license, is competent. Tucker vs. People, 122 111. 583. Admissibility of Board of Health Record of Marriage: Paper purporting to be transcript from records of marriages Ev.— 12 178 BIGAMY reported to Board of Ilealtli, showing marriage of person having same name as defendant, is inadmissible unless shown to be one required by law to be kept. Sokel vs. People, 21^ 111. 238. Dissolution of Former Marriage: Must have been a valid, legal dissolution. Sokel vs. People, 212 111. 238. So divorce by rabbi in foreign country is not a valid dissolution when it is not shown rabbi had jurisdiction to grant divorces. Sokel vs. People, 212 111. 238. Burden of Proof: Where the evidence established a contract of marriage, one con- tending that the contract falls within restrictions imposed by the state where the marriage took place, has the burden of proof. Sokel vs. People, 212 111. 238. Where a legal divorce, granted before the second marriage, is offered as a defense, the burden is on defendant to prove valid- ity of the decree. People vs. Spoor, 235 111. 230. Degree of Proof: Where the former of tvvo marriages relied upon to convict of bigamy is a common law marriage, a contract per verhi de presenti, with cohabitation, and all elements necessary to constitute such connnon law marriage must be proven in order to sustain convic- tion. Strict proof of fact of marriage is required. Hiler vs. People, 156 111. 511. Intent: Evidence that second marriage was entered into in good faith, under an honest but mistaken belief that first wdfe was dead or had obtained a divorce, is inadmissible. People vs. Spoor, 235 111. 230. Defendant's voluntary intoxication at time of first marriage no defense. Barber vs. People, 203 111. 543. Competency of Wife as Witness : When a second wife is offered as a witness, the question of her competency is for the court, and in deciding that question, the court is not only the judge of the law but also of the questions of fact necessary to be decided to determine that question. Hoch vs. People, 219 111. 265. If first marriage is clearly proven and not controverted, then the person with whom the second marriage was had may be ad- mitted as a witness to prove the second marriage, as well as other facts not tending to defeat the first or legalize the second, but when first marriage is controverted, such person is incompetent. Hoch vs. People, 219 111. 265; Lowery vs. People, 172 111. 466. The incompetency of the alleged second wife cannot be waived by defendant. Barber vs. People, 203 111. 543. Where the relation of husband and wife has been assumed, the second wife can never be admitted as a witness to prove the first marriage, because that fact must be established before she can testify at all. Hoch vs. People, 219 111. 265; Barber vs. People, 203 111. 543. BILL OF LADL\G 279 BILLS OF DISCOVERY See Discovery. BILL OF EXCEPTIONS See Certificates of Evidence. Admissibility to Show^ Former Testimony : — Of Party to Suit: Fornier testimony cannot be proven by reading from a bill of exceptions by counsel. Sargeant vs. Marshall, 38 App. 642. — Of Deceased Witness: The testimony of a witness, since deceased, cannot be shown by a bill of exceptions taken at the trial. I. C. R. E. Co. vs. Ashline, 171 III. 313; M. & S. E. E. Co. vs. Horan, 131 111. 288; Stern vs. People, 102 111. 540; Roth vs. Smith, 54 111. 431. — Absent Witness: What a witness, who is beyond the juris- diction of the court, and whose deposition cannot be procured, testified to at a former trial between the same parties, cannot be proven by a bill of exceptions made up on a former trial, even though his testimony mav have been taken in shorthand. I. C. R. R. Co. vs. Ashline, 171 111. 313; Contra Plane Mfg. Co. vs. Parmeuter, 56 App. 258. Effect of Admitting by Consent: Where the record of a prior suit, relating to the same matter in litigation, but not between the same parties, and a bill of excep- tions taken on the trial of a former suit was admitted in evidence by consent, it was not error to permit jury to carry such record to their room, as such consent did not assimilate the record into a deposition. O'Neall vs. Calhoun, 67 111. 219. BILL OF LADING See Assent. Presumptions : — Conelition of Goods: Where a common carrier receives goods for shipment, and gives the consignor a bill of lading, in which goods are described to be in apparent good order, the bill of lad- ing is prima facie evidence, in suit against the carrier, that the goods were in good condition. Euddell vs. B. & O. S. W. E. E. Co., 152 App. 218; I. C. E. E. Co. vs. Cobb, 72 111. 148. — Oivnership: Indorsement and delivery of bill of lading gives indorsee a prima facie title in property. Sanitary Can Co. vs. Hines, 149 App. 244. — Contract of Carriage: The acceptance by a common carrier for transportation of freight to a place beyond the terminus of its own lines, and its receipt given for the same constitute a prima facie contract to carry and deliver such freight to the place of its destination. Coales vs. C. R. I. & P. Ry. Co., 239 111. 154; Wabash R. E. Co. vs. Thomas, 222 111. 337; E. J. & E. E. Co. vs. Bfites Maeh. Co., 98 App. 311; I. C. E. E. Co. vs. Frankenbura-, 54 HI. 88; I. C. E. E. Co. vs. Johnson, 34 111. 389; I. C. E. R. Co, vs. Copoland, 24 111. 332; XI 111. Notes 763, § 186. 180 BILL OF PxVRTlCULARS Admissibility of Evidence: . Where bill of lading issued it must be put in evidence. Biutless vs. Oregon S. L. R. R. Co., ISO App. 1^49. But the loss of it does not defeat right of action. Gamble Conn. Co. vs. V. P. E. R. Co., 180 App. 256. Contract limiting liability may be given in evidence under gen- eral issue in action of case. -- Cole & Co. vs. L. & E. St. L. E. E. Co., 41 App. 607; Wabash St. L. & P. E. E. Co. vs. Black, 11 App. 405; B. & O. S. W. R. E. Co. vs. Eoss, 105 App. 54. — Contradiction hy Carrier: A shipping receipt reciting ship- ment of certain property may be contradicted by carrier to show it had never recieved the property of the consignor. L. S. & M. S. E. R. Co. vs. Natl. L. S. Bank, 178 111. 506. A bill of lading is prima facie evidence of the matters con- tained in it, but it is subject to explanation ; and carrier may show any injury, loss, fraud or deceit occasioned or practiced by any previous carrier or the shipper of the goods. G. W. E. R. Co. vs. McDonald, 18 111. 172. A bill of lading is in the nature of a receipt and may be ex- plained or contradicted by parol proof. A bill of lading is prima facie evidence and the carrier must prove that the goods were not as therein described. Bissell vs Price, 16 111. 408; Wallace vs. Long, 8 Ajrtp. 504. — To Prove Verbal Contract: Although a common carrier in receiving goods for transportation may issue a bill of lading there- for, containing provisions restricting his common law liability, this is not conclusive upon the shipper as to the terms upon which the goods were to be carried, but he may show by parol evidence that there was a prior verbal agreement upon which the goods were to be shipped and which did not provide for the restrictions upon carrier's lialiilitv contained in bill of lading. Baker vs. M. S. R. R. Co., 42 111. 73 ; St. L. S. Ry. Co. vs. Elgin Milk Co., 74 App. 619. — Forwarding Line: Where a bill of lading is silent in respect to the line by which the goods are to be forwarded, its effect is the same as if a provision were therein inserted that the carrier should have the right to select at its discretion any customary or usual route which is regarded as safe and reasonable, and this provision l)eing thus inserted into the contract by law is as unas- sailable bv parol as anv of the express terms of the contracts. S'hafton Co. vs. St. L. I. M. & S. :Sij. Co., 174 App. 121. BILL OF PARTICULARS CIVIL ACTIONS: Purpose : The purpose of a bill of particulars is to inform the defendant of the claim he is called upon to defend. McKinuie vs. Lane, 230 111. 544; Porter vs. Horton, 80 App. 333. BILL OF PxVPvTlCULARS 181 Right Tot — In General: Whether or not a party shnll l)o rnk>d to fur- nish a bill of particulars is a matter resting solely in the sound legal discretion of the court. Greshain vs. ShoJits, 170 App. 296; Amer. Roll. Mill Co. vs. Iron Co 120 App. 614. ' In all actions where, by reason of the generality of the claim or charge, the adverse party is unable to know with reasonable cer- tainty what he is required to meet, a bill of particulars may be demanded. Amer. B. M. Co. vs. O. I. & M. Co., 120 App. 614. A specification or bill of particulars is not required in action for damages caused by negligence stating how, when and by what means the injury occurred. C. & A. Ey. Co. vs. Smith, 10 App. 359. In action for breach of warranty of sheep as sound, but which were claimed to be diseased, where declaration fails to name dis- ease with which they were claimed to be atfected, defendant should have a discovery thereof by a bill of particulars. Heenan vs. Eedman, 101 App. 603, Where the allegations in action for slander are not specific enough to fully apprise the defendant of the cause of action in statement of the actual word uttered, or to whom or in whose presence, or the place where uttered, court should order filing of a bill of particulars. Amer. R. M. Co. vs. 0. & I. M. Co., 120 App. 614. — 'Waiver: Where a plea of set-off has been on file for more than seven weeks and plaintiff does not call for a bill of particu- lars under it until after the case is called for trial, and a jury is called, he must be regarded as having waived his rights. Fowler vs. Meyers, 59 App. 248; Howe vs. Frazer, 117 111. 191, Requisites and Sufficiency: Slight ambiguity in bill of particulars is not fatal; a bill of particulars is sufficient if it informs the defendant of the nature of plaintiff's claim. Maloney vs. Madden, 153 App. 271. An omission in a bill of particulars of a matter well known to defendant is immaterial. Yawoer vs. Bachs, 119 App. 61. Scope and Effect: Where a party files a bill of particulars, he is bound to prove such a case as is stated in it or enough of it to warrant a recovery. City of Chicago vs. Rustin, 99 App. 47. A bill of particulars is restrictive of the right of recovery stated in the declaration, and it is error to admit proof of a cause of action or damages not therein specified. Colwell vs. Brown, 103 App. 22. The effect is to limit plaintiff in the trial to proof of the particu- lar cause of action therein mentioned. McKinnie vs. Lane, 230 111. 544; Star Brew. vs. Farnsworth, 172 111. 247; Waidner vs. Panlev, 141 111. 442; Porter vs. Horton, 80 App. 333; Morton vs. McClure, 22 111. 257; XIV 111. Notes 44, § 328. The bill of particulars limits the claims for which recovery can 182 BILL OF PARTICULARS be had to those specifically set forth in it, but does not limit the introduction of evidence tending to prove such claims. Casey vs, Vandeventer, 76 App. 628. Where a bill of particulars is filed embracing many charges and a credit for a sum as paid, the whole account must be taken to- gether like an admission of any other kind, and it is for the jury to pass upon and say what it proves. Thompson vs. Hovey, 43 111. 197. Amendment : Although a bill of particulars, when filed, restricts plaintiff to the particular cause of action therein set forth, it is subject to amend- ment as any other pleading. Waidner vs. Pauly, 141 111. 442; Brownell Co. vs, Critchfield, 90 App. 84. Court should allow it to conform to the evidence. McKinnie vs. Lane, 230 111. 544. Reading to Jury : A bill of particulars accompanying notice of set-off may be treated as part of the record and read to jury and commented on. Miller vs. Miller, 16 111. 296, Admissibility: ]\Iay be used to refresh party's memory, where same was made out under his direction and he knew same to be correct. C. & W. Coal Co. vs. Liddell, 69 111. 639. CRIMINAL TRIALS: Right To: — In General: Defendant is not entitled to a bill of particulars as a matter of right. The requiring of it rests in the sound dis- cretion of the court. People vs. Poindexter, 243 111. 68; People vs. Nail, 242 111. 284; Du- bois vs. People, 200 111. 157; People vs. Walker, 154 App. 3; People vs. Joyce, 154 App. 13 ; Christenson vs. People, 114 App. 40 ; XII 111. Notes 989, § 45. It is only where the indictment does not sufficiently advise the defendant what it is with which he is charged, or where it appears that he cannot properly prepare his defense without a bill of par- ticulars that it is the duty of the court to require one to be fur- nished. People vs. Poindexter, 243 111. 68 ; Kelly vs. People, 192 111. 119. In a criminal ease it is not necessary where the indictment itself sufficiently informs the defendants of the crime with which they are charged to enable them to prepare their defense. Gallagher vs. People, 211 111. 158. • — Conspiracy: Where most of the counts of an indictment for conspiracy are sufficiently specific to apprise the defendants fully of the offense charged and the means whereby the conspiracy was to be carried into effect, and no evidence is offered which is not properly admissible under such counts, the refusal of the court to require the People to file a bill of particulars is not harmful. People vs. Smith, 239 111. 91, — Crimes Against Nature: An indictment which informs the defendant, in the language of the statute, that he is charged with the crime against nature with and upon a named person, averred to be a "man, and "a male person," is sufficient. Kelly vs. People, 192 111. 119; Honselman vs. People, 168 111. 172. BILL OF PARTICULARS 183 — Confidence Game: Bill of particulars in prosecution for con- ducting confidence game need not set out various devices and means resorted to. People vs. Weil, 244 111. 176; People vs. DuBois, 200 111. 157. Whether or not the People shall be required to furnish a hill of particulars under a count charging the confidence game is a matter resting in the sound legal discretion of the court, and if such count is sufficiently specific to notify the defendant of tiie offense with which he is charged, a refusal to require a bill of particulars is not an abuse of such discretion. People vs. Weil, 244 111. 176. If an indictment for obtaining money by means of a confidence game names the victim, the offense is sufficiently identified and a conviction of the crime would bar a second prosecution. DuBois vs. People, 200 111. 157. Scope and Effect : ''Under plainest principles of law, relating to the admission of evidence, under an averment in pleading — treating the bill of par- ticulars as a pleading — the evidence should be confined to the offense specified in the bill of particulars; otherwise the bill of particulars was a delusion, a legal snare, furnished for the pur- pose of deceiving the defendants." McDonald vs. People, 126 111. 150; Sullivan vs. People, 108 App. 328. Effect of a bill of particulars is to limit the evidence to the transaction therein set out. But the prosecution is not required to set out in the bill of particulars all the evidence it will produce in support of the charge. Any evidence tending to establish the transaction set forth therein is admissible. If the bill is not suf- ficiently specific, defendant may demand one more definite and certain. If evidence offered is not limited to transaction men- tioned, he may object to it on that ground. People vs. Depew, 237 111. 574. In case the prosecution, by order of court, furnishes a bill of particulars showing the particular transactions relied upon to support an indictment for conspiracy to obtain money by false and fraudulent representations, it will be limited to proof of the acts or transactions named in such bill of particulars, and it will be error to admit evidence of other and different transactions and not inseparable from those named, or constituting a part of the res gestae. McDonald vs. People, 126 111. 150. Reading to Jury: Upon a trial for conspiracy under a general conspiracy indict- ment, the bill of particulars specifying the charges the accused is required to meet, which was filed by order of the court at the request of the accused, may be read to the jury by the State's attorney in his opening statement. " Cooke vs. People, "231 111. 9. And same may be taken to jury room. Cooke vs. People, 134 App. 41. 184 BONDS BONDS See Appeal Bonds, Principal and Surety, Denial of Execu- tion. BURDEN OF PROOF : Plaiiititt' has burden of proving that act complained of occurred during the term of the bond. Mystic Workers vs. U. S. F. G. Co., 152 App. 223; Stern vs. People, 96 111. 475. But where an officer at the expiration of his term of office makes a report showing the .balance in his hands, and thereupon jsuc- ceeds himself and gives a new bond, the surety in the new bond cannot be permitted to show in action brought upon the bond at the expiration of the last term of office that a shortage then found to exist arose from embezzlements, misappropriations or losses which actually occurred during the term of office prior to the one for which the bond sued on was given. To^\ii of Cicero vs. Grisco, 240 111. 220; Trustees of Schools vs. Cowden, 240 111. 39. A surety on a bond given to secure the faithful performance of a contract is not liable for defaults of his principal previous to the transaction wherein the bond and contract were executed, unless the contract is retrospective in terms. Bartlett vs. Wheeler, 195 111. 445. ADMISSIBILITY OF EVIDENCE: Official Capacity: In action on an officer's bond, the sureties cannot be permitted to deny that he is such officer. Meyer vs. Willshire, 92 111. 395 ; Albee vs. People, 22 111. 533 ; Shaw vs. Haverskluft, 21 111. 127; XIII 111. Notes 1032, § 38. Validity : If a public offijcer gives a bond under which he is allowed to receive money and does actually receive it by virtue of his office, he and his sureties are estopped to deny the validity of the bond when sued for breach of its conditions. Estate of Eamscy vs. People, 197 111. 572. Recitals : In action on a bond, the obligors and sureties are estopped from setting up defenses that contradict the recitals therein. McCarthy vs. Construction Co., 219 111. 61(5; Harding vs. Kuessner, 172 111. 125; Lucas vs. Beebee, S8 111. 427; Arnott vs. Friel, 50 111. 174. Admissions : In suit on bond, an admission by principal that he owed a cer- tain amount is evidence of that fact, not only against himself, but against his co-obligors. ^ o , , s o . Swisher vs. Deering, 204 111. 203; Swift vs. Trustees of Schools, 1!59 111. 584; Ehode vs. McLean, 101 111. 467; People vs. Title G. & S. Co., 156 App. 488; Magner vs. Knowles, 67 111. 325. And if such admission be proved, his successor in office may, without producing the books, testify that the books showed that party had received such amount and failed to turn it over. Swift vs. Trustees of Schools. 189 111. 584. BONDS 185 Certified Copy: Certified copy of an official bond is admissible in evidence with- out preliminary proof of loss of original. Estate of Kamsey vs. People, 197 111. 572. Approval of Bond: Approval of officer's bond may be shown by parol. Estate of Ramsey vs. People, 197 Til. 572; liartloss vs. P,oar(l of Education, 59 111. 364; School Directors vs. Kimnioll, 31 Apji. 537. But not order of court approvinsr guardian's bond. Mcliityre vs. People, 103 111. 142. Pleadings in Former Suit: Defendant's answer in former suit is competent as an admis- sion. Culley vs. People, 73 App. 501. Books and Records: Where the books upon which the entries of a public officer are made as the law requires to be kept so that they constitute the official record of the acts performed by him in the discharge of his official duties, such entries are on general principles admissible in evidence for or against all persons having any interest in them or the facts to which they relate, including the officer and the sure- ties on his bond. Cassidy vs. Trustees of Schools, 105 111. 561; Building Association vs. Cochrane, 103 App. 29. And this whether entries were made by official or his bookkeeper, the presumption being that he w^ould not permit improper or incor- rect charges to stand uncorrected. Cawley vs. People, 95 111. 249. So the report of a county treasurer, in his handwriting, pre- sented to the county board, as well as the record of the board approving same, are competent evidence against his sureties in action on his official bond. Stern vs. People, 102 111. 541. — When Conclusive: "Where the books upon which the entries of a public officer are made, are such as the law requires to be kept, so that they constitute the official record of the acts per- formed by him in the discharge of his official duties, such entries are conclusive upon principal and sureties. Town of Cicero vs. Grisco, 240 111. 220; Cowden vs. Trustees of Schools, 235 111. 604; Longan vs. Taylor, 130 111. 412; Fogarty vs. Ream, 100 111. 366. But records w^iich require an adjudication or approval of a court are not conclusive until so approved or adjudicated. People vs. Huffman, 182 111. 390. Official Orders: An order of the probate court finding the amount due from a guardian to his ward on his final account is admissible in suit against the sureties on his bond. Ryan vs. People, 165 111. 143; Gillett vs. Wylie, 126 III. 310; Mould- 'ing vs. Wilhartz, 169 111. 422. And where a report is made by an administrator or executor and there has been an adjudication by the court approving that report and ordering payment from the funds in the hands of such admin- 186 BOOK ACCOUNT istrator, that judgment is evidence that is conclusive on such ad- ministrator or executor and also upon his sureties. People vs. Huffman, 182 111. 390. Also the record of the removal from office of a county treasurer by the county board is admissible in evidence in suit on his official bond against the sureties on his bond, that being the best evidence of the fact of removal and the cause thereof. Also the recitals showing that the officer was found to be a defaulter is admissible as well as that part of the record showing the removal itself. Stern vs. People, 102 111. 541. Judgments : — When Conclusive: A judgment against a principal where the surety has been notified and had an opportunity to defend is prima facie evidence as to amount of damages in suit against surety, Henry vs. Heklmaier, 226 111. 152. So a judgment against an executor for money due from him as such, to the estate, cannot be collaterally attacked in suit on bond. Nevitt \s. Woodlnuii, Ifin 111. 203. WEIGHT AND SUFFICIENCY: Bond for Payment of Money: Where a suit is brought on a bond for payment of money in in- stallments, for a breach of the condition of non-payment of the installments, the plaintiff cannot recover without proof of such breach, and the mere introduction of the bond does not make out a prima facie case. And the rule is the same whether suit is at law or in equity. Barrett vs. Building Assn., 75 App. 98. Penal Bond: In action on a penal bond, conditioned for payment of the penal sum at a specified time, the introduction of the bond in evidence will establish a prima facie case for the plaintiff for the full amount, as debt, and if interest after maturity is recoverable, that should be allowed as damages. Hoxsey vs. Patterson, 59 111. 522. Bond for Deed: In action on bond for deed to recover money paid, the only proof necessary is the bond itself, payment of money, and that before payment upon the bond became due the obligor had con- veyed away the land to another. Buck vs. Eaman, 18 111. 529. Attachment Bond: If only the plea of non est factum stands as to the declaration, a prima facie case in action upon an attachment bond is made by due proof of such bond, the disposition of the attachment being admitted by the state of the pleadings. Strong vs. Hasterlik, 146 App. 346; Goldstein vs. Reynolds, 190 111. 124. BOOK ACCOUNT See Account Stated, Books of Account. BOOKS 187 BOOKS See Corporations, Hearsay, Books op Account, Expert and Opinion. On Mechanics : — Extracts Inadmissible: In action to recover for injury caused by use of defective machinery, extracts from a standard work on mechanics cannot be read in evidence. N. C. II. M. Co. vs. Monka, 107 111. 340. Medical Books: — Reading From: It is not competent for counsel to read from medical works, and much less is it competent to attempt to prove the contents of such books by witnesses testifying solely from memory; such evidence is mere hearsay and incompetent. Chi. City Ey. Co. vs. Douglas, 104 App. 41; Forest City Ins. Co. vs. Morgan, 22 App. 199; Yoe vs. People, 49 111. 410. Nor may counsel read from reported cases the opinions of med- ical experts who testified in such cases. Yoe vs. People, 49 111. 410. — Experts: A physician who has testified as an expert may be asked, on cross examination, to state the names of medical authori- ties supporting a proposition concerning which he has testified. Chi. U. Trac. -Co. vs. Ertrachter, 228 111. 114. And may be cross examined as to basis of his opinion as to whether authorities do not lay down a different rule, and the like. Donnelly vs. Chi, City Ey. Co., 163 App. 7. Scientific books cannot be read from to contradict experts gen- erally. ^ , ' , Wevh vs. Chi. City Ey. Co., 148 App. 165; Forest City Ins. Co. vs^ Morgan, 22 App. 199; XII 111. Notes 510, §282. And such books are not admissible and the fact that witness has examined them does not render them so. Nor can books be sub- mitted to witness and he asked as to whether or not opinions ex- pressed therein were at variance with those of witness. Weyh vs. Chi. City Ey. Co., 148 App. 165; Neiner vs. Chi. City Ey. Co., 181 App. 449. The weight of current authority is decidedly against the admis- sion of scientific books in evidence before a jury, and against allow- ing them to be read from to contradict an expert generally. Wlien, however, an expert assumes to base his opinion upon the work of a particular author, that work may be read in evidence to contra- dict him. AVhere a witness was examined as an expert, and gave evidence tending to prove that a party had been guilty of negli- gence after a fall, in omitting the proper care to avoid an abor- tion, but did not quote from or make any reference to any med- ical works on the subject, the court allowed counsel, on cross ex- amination, to ask him if he were acquainted with Playfair and Bed- ford (treatises on midwifery), and upon his responding in the affirmative, and that they were standard authors on such ques- tions, the court allowed counsel to read at length from _ each of these authors, consecutively, and then inquire of the witness whether he agreed with the authors as to the parts so read, and it was held to be error to allow the reading from the books and the 188 BOOKS OF ACCOUNT questions to be propounded to the witness as to his agreeing with the authors. Since medical or other scientific books are not admissible as original evidence, it follows that they are not admissible on cross examination, when their introduction is not for the direct contra- diction of something asserted by witness, but simply to prove a different theory. City of Bloomington vs. Shrock, 110 111. 219; Cbi. M. Life Ins. Co. vs. Ellis, 89 111. 516; Brodie vs. City of Lewistou, 164 App. 336. So long as a witness testifying has not assumed to base his opin- ion upon the authority of a particular author, the opinion of such author as expressed in the treatise (even if the opinion is expressed by the witness) is incompetent. Weyb vs. City of Chicago, 148 App. 165. But when an expert 'assumes to base his opinion upon a par- ticular author's book, that book may be read in evidence to contra- dict him. Wcyh vs. City of Chicago, 148 App. 165. Law Books: — Criminal Action: The law as laid down by standard authors and as contained in the reported cases of courts of last resort, may be read to the jury by either side, including the statements of fact upon which the decisions are based, Wohlford vs. People, 148 111. 296. — Civil Aciions: In civil actions a different rule prevails, Wohlford vs. People, 148 111. 296. Scientific Books: In a prosecution of leaders of a revolutionary society, for mur- der by a member thereof throwing a boml) during a meeting ad- dressed by defendants, a scientific treatise on Revolutionary War- fare used and adopted by the society is competent as showing ob- ject of society and methods to be used in its attainment. ►Spies vs. People, 122 111. 1. BOOKS OF ACCOUNT See Memorandum, Best and Secondary, Production op Docu- ments, Advancements. Defined : — In General: A book, to be admissible in evidence, as an ac- count book, must contain entries or transactions as they occurred in the regular course of business. Kibbe vs. Bancroft, 77 111. 18; Taliaferro vs. Ives, 51 111. 247; Dicki- son vs. l^lec. Co., 53 Ap^i. 379. And should have been fairly and honestly kept. Chisholm vs. Beaman Mach. Co., 160 111. 101. Must be book of original entry. McDavids vs. Elli'^, 78 App. 381; Meeth vs. Brick Co., 48 App. 602; MeConiiick vs. Elston, 16 111. 204; XII 111. Notes 508 §259. And made at time of transaction. Hill vs. Homniers, 55 App. 345. Where one man received payments and notes same on slips whicli BOOKS OF ACCOUNT 189 are delivered at end of week to another who enters same on books, the books are to be regarded as books of original entry. Trainor vs. Building Assn., 204 111. (U6, Where book is an old one, laid aside as a book of accounts, and used only for one entry of a late transaction, it is not admissible in evidence as to the latter entry. It has never been held that a single entry makes an account book, nor has it ever been held that a single entry of cash in a book is competent proof. Kibbe vs. Bancroft, 77 111. 18. — Cash Book: A book is not an account book which does not contain an account with a person, but mere memoranda of pay- ments of cash. Sanford vs. Miller, 19 App. 536; Schwarz vs. Eossler, 40 Ai:)p. 474. — Ledger: The book of original entry must be produced; the ledger alone is not sufficient. McCormick vs. Elston, 16 111. 204; Harper vs. Ely, 70 111. 582. When a party's day book is admitted in evidence, after his tes- tifying to the correctness of the various entries therein, there is no error in refusing to allow him to give in evidence his ledger. Stickle vs. Otto, 86 111. 161. Ledger may be competent as an admission. McClurg & Co. vs. Williams, 180 App. 099. — Agent's Record of Business: A book or record in which a person makes entries of matters of business in which he is em- ployed, is not admissible as a book of account. Boyd vs. Jennings, 46 App. 290. — Engine Inspection Book: Is not a book of account. B. & O. S. W. Ey. Co. vs. Tripp, 175 111. 251. — Order Book of Merchant: Is not a book of account. Brooks vs. Funk, 85 App. 631. — Pass Book of Merchant -. Wliere a person, in dealing with a merchant, uses a pass book which is presented to the merchant when articles are purchased and they are entered in the book, which is returned to the buyer with the goods, in suit by the merchant to recover for goods sold, the pass book is admissible in evidence. Hovey vs. Thompson, 37 111. 538. — Memoranda: Llere memoranda of real estate firm is not a book of account. Cairns vs. Hunt, 78 App. 420. — Footings: Footings in book account form no part of original entries and are inadmissible. McAmore vs. Wiley, 49 App. 615. But footings exhibited to a party, when whole account was shown, may be competent as an admission. Butler vs. Cornell, 148 111. 276. — Onlij Book: An account book shown to have been the only book is necessarilv the book of original entry. Patrick vs."^Jack, 82 111. 81. Necessity of Production: Contents of account l)ook cannot be stated. The book itself, if competent, should be received. Schlotte vs. Puselieck, 79 App. 31. Admissibility : — In General: The common law rule relating to admissibility 190 BOOKS OF ACCOUNT of books of account is not abrogated, but simply enlarged, by the statute. Bank vs. Elledge, 99 App. 307; Weigle vs. Brautigan, 7-4 App. LlS.j. Or of the character of the books nor of the items are charges that may be proved by it. Boyd vs. Jennings, 4G App. 290. Books of account are not admissible to prove a matter collateral to the issue of debit and credit, between the parties. . '<'.....-i Palmer vs. Goldsmith, 15 App. 544; Sanford vs. Miller, 19 App. 536.' Books of account admissible for goods sold. Richardson vs. Benes, 115 App. 532. It is not essential to the admissibility of books of account that the claim sued on, or the defense intei-posed, be founded on a book account. Bank vs. Elledge, 99 App. 307; Eobertson vs. Carlson, 181 App. 251. So in a suit by bank oji a note, when defense of payment is inter- posed, books of bank are admissible in corroboration of cashier, testifying in denial of payment. Bank vs. Elledge, 99 App. 307. Although entries in a book may not have been made so as to have been competent to furnish presumption of delivery, yet when offered against the keeper they may be competent as admissions. Adair vs. Adair Printing Co., 162 App. 511. The usual probative force of accounts, kept in books in the usual course of dealings between parties as regards transactions of mer- chandise and the like, does not apply to an account for money lent as that is not usually the subject matter of an account, notes being usually taken. Eothschild vs. Sessell, 103 App. 274. — Preliminary Proof: AVhere no foundation is laid for the in- troduction of an account book is evidence, it is error to permit a witness to read into the record items contained in such book. Osgood vs. Poole, 165 App. 63. It is error to admit books of account in evidence without making preliminary proof of facts required by statute. Jackson vs. Glos, 249 111. 388; McAmore vs. Wiley, 49 App. 615. Effect of statute is solely to change character of preliminarjr proof, sufficient to admit book account. Brooks vs. Funk. 85 App. 631, Adds to but does not repeal common law rule. Presbyterian Church vs. Emerson, 66 111. 269; House vs. Beak, 141 111. 290. ]\Iust be shown to be a book of original entry, made in regular course of business, and that entries are just, true and correct. Eichardson vs. Bencs, 115 App. 532; Garlick vs. B. & L. Assn., 129 App. 402 ; Presbvterian Church vs. Emerson, 66 111. 269 ; Stickle vs. Otto, 86 111. 161; West Chi. St. Ey. Co. vs. Moras, 111 App. 531. The books of a partnership to which the parties have or are en- titled to have access at all times, are, as between the partners, pre- sumed to be correct. Donaldson vs. Donaldson, 237 111. 318. In case of open accounts composed of many items, where the entries are made by the party himself, no clerk being employed, the book of accounts is admissible in evidence upon proof being made by a person who has dealt with the party and settled by such BOOKS OF ACCOUNT 191 book, that it is the party's book of account, and is fair and correct, and that some of the articles charged were delivered about the time the entries purport to have been made, and that the entries are in the handwriting of the party producing the book. But this rule would not apply to an account for money loaned, nor to an account containing a single charge only. Boyer vs. Swett, 4 111, 119; Buggies vs. Gatton, 50 Til. 412. Book entries are not competent when proof of their correctness is not made, either by the maker thereof or by one who is able, of his own knowledge, to testify to their correctness. Johnson Coal Co. vs. Foreade, 136 App. 21. When entries made without personal knowledge of correctness inadmissible. Schnellbacher vs. McLaughlin, 108 App. 486. Are not rendered competent by notice to produce merely. Marsh vs. French, 82 App. 76. To admit a party 's books of account in evidence, the common law requires that the entries therein shall be proven by the clerk or servant who made them, if he be alive and can be produced ; and it is necessary that the entries shall have been made in the ordinary course of business by a person whose duty it was to make them, and that they shall have been made contemporaneously with the delivery of the goods so as to form a part of the res gestae. House vs. Beak, 141 111. 290; Stettauer vs. White, 98 111. 72; Kibbe vs. Bancroft, 77 111. 18; Taliaferro vs. Ives, 51 111. 247; Buggies vs. Gatton, 50 111. 412; XII 111. Notes 512, § 297. Books of original entry kept by the party himself are admissible to sustain an account composed of many items, on proof that some of the articles were delivered at or about the time the entries pur- port to have been made ; that the entries are in the handwriting of such party; that he kept no clerk at that time, and that the persons having dealings with him settled by such books, and found them to be fair and correct. Where the clerk who made the entries has no knowledge of their correctness, but makes them as the items are furnished by others, it is essential that the party furnishing the items should testify to their correctness, or that sat- isfactory proof thereof, such as the transactions are reasonably susceptible of, from other sources, should be produced. House vs. Beak, 141 111. 290; Stettauer vs. White, 98 111. 72; Kibbe vs. Bancroft, 77 111. 18; Taliafferro vs. Ives, 51 111. 247; Buggies vs. Gatton, 50 111. 412; McDavid vs. Ellis, 78 App. 381. It must be shown that books were kept in some regular course of business, that entries were made in chronological order and con- temporaneous with items entered. Cahill vs. Printy, 138 App. 600. Book accounts are only admissible in favor of party who keeps them w^hen entries are made contemporaneously with the trans- actions recorded. Marshall vs. Coleman, 187 HI. 556. To admit charge upon a party's books, transferred from min- utes originally made upon tickets, as evidence of the items shown therein, it is sufficient if the entries were transferred within a rea- sonable time so that it may appear to have taken place while the memory of the facts w^as recent, or the source from which a knowl- 192 BOOKS OF ACCOUNT edge of the matters were derived was unimpaired, and it is shown the entries on the tickets were made when goods were delivered. Eedlich vs. Bauerlee, 98 111. 134; Kicharclson vs. Benes, 115 App. 532; Wrij>ht vs. Charbonneaii, V22 App. 52; Wurlitzer vs. Dickinson, 153 App. 36. A party who sought to introduce in evidence his books of ac- count, did not state that they were books of original entry, and that he made them; that they were true or that they were made by a deceased person, or a non-resident of this state, and that such person made them in the due course of trade, and of his duty, or in the course of his employment, but, on the contrary, a witness stated that he was the clerk for the party, and sold a part of the goods sought to be recovered: Held, that the proper foundation was not laid to render the books admissible in evidence under act of 1867 relating to that subject. Euggles vs. Gatton, 50 111. 412. Witness in his own behalf was asked, "State if you have the book of account of original entry, kept by yourself, between your- self and defendant?" He answered, "Yes," and was then asked to produce the book, which he did, and said, "This is it." Held, insufticient. Eiehardson vs. Almon, 40 App. 90. Party's testimony that accounts are correct equivalent to testi- mony that, they are true and just. Pres. Chnrch vs. Emerson, 66 III. 269. Loose sheets found in partnership books, not shown to have been in the book during the existence of partnership, and it not being shown anyone saw them until after partnership was closed, and there being blank pages in the book where the entries could have been made, are not admissible for lack of proper foundation. Donaldson a-s. Donaldson, 237 111. 318. Testimony of a creditor that a certain account book "was his book of account, and kept by him," in absence of specific objection, is sufficient preliminary proof to warrant introduction of same in evidence. Ailing vs. Brazee, 27 App. 595. — Copies: Entries confessedly copied into the book produced from the original entry, by a person not produced, are not com- petent. McDavid vs. Ellis, 78 App. 381. An examined copy of bank books is admissible to show state of party's account, where it is stipulated the copy is to be treated and given the same effect as the books themselves. Lelimann vs. Eothbortli, 111 111. 185. AVhere charge is made in duplicate, both original and carbon copy are admissible. Wurlitzer vs. Dickison, 153 App. 36. — Bool{s Transcribed from Memoranda: "In order to entitle a book of account made up of entries transcribed from temporary memoranda to be read in evidence, such book must be supported not only by the suppletory oath of the party who made the entries in the book, but the person who made the temporary memoranda in the first instance, where the entries in both cases were not made by same person, must also be called to prove that at or about the BOOKS OF ACCOUNT 193 time the charges were made, articles were delivered or work per- formed of a character similar to those charged in the book." Trainor vs. G. A. Building Assn., 204 111. 616. Where an entry is made by one, in the performance of his Parmly vs. Farrar, 204 111. 38. In suit for services rendered by brokers in sale of real estate, which was actually concluded by another broker, an unqualified question to purchaser whether he ivould have bought the property through the plaintiffs, is properlv excluded. Day vs. Porter, 161 111. 235 ; Cf . McGiiire vs. Carlson, 61 App. 295. — Secret or Unlawful Profits: Must be established by prepon- derance of the evidence. Windsdor vs. Kelly Coal Co., 147 App. 451. — Ability to Ft)' form: Where the purchaser testifies that he was ready to carry out the contract, it may be assumed that he was able and willing and that thus the broker was, in fact, en- titled to his commission. Smith vs. Keeler, 51 App. 267. Intended purchaser may testify that he was willing and readj' to buy, as this is a fact and not simply a conclusion. Wolven vs. Shondy, 66 App. 42. When Contract and Sale Not Essential: Where seller refuses to contract, broker is entitled to commissions, if he prove purchaser produced was ready, able and willing to purchase upon terms proposed. Fox vs. Eyan, 240 111. 391 ; Wilson vs. Mason, 158 111. 304. Wliere a broker seeks to recover commission in procuring an agreement to exchange properties, it is not essential that a valid and enforceable agreement be obtained. It is enough if he se- cures a buyer ready, willing and able to make the exchange upon the terms required. Sehulte vs. Meehan, 133 App. 491 ; Hulten vs. Eenner, 74 App. 124. But this ability is not proven by the mere production of deeds on part of vendee, without some showing that he had title to the properties he was willing to deed. His ability does not depend upon general financial responsibility, but upon his being owner of the lands it was proposed to exchange. Hersher vs. Wells, 103 App. 418. License : Proof in the first instance that plaintiffs were licensed real estate brokers is unnecessary to a recovery under the common counts. Munsen vs. Fenno, 87 App. 655 ; O 'Hara vs. Lieb, 66 App. 549. Possession of license as real estate broker is immaterial to right of recovery where evidence is silent on that subject. Packer vs. Shappard, 127 App. 598. It is not essential to a recovery by a broker that he have a license at the time property is put in his hands, so long as he has it at time his work is complete. lo Crilly vs. Yonng, 152 App. 72; Loehne vs. Halsey, 88 App. 452. BUCKET SHOPS 213 The fact that a real estate agent had been in business for a num- ber of years, or was licensed at time of a certain trial, does not raise the presumption that he was so licensed two years before. Eckert vs. Collet, 46 App. 361. An ordinance providing- that a l)roker must have a license, is admissible for defendant under plea of general issue, the decla- ration being on the common counts only. Eekert vs. CoUot, 46 App. 361. Chicago ordinances do not apply to stock brokers. Ilately vs. Kizer, 253 111. 288. ' BUCKET SHOPS See Gambling Contracts. Presumptions : It is presumed that when a man keeps a place where gambling in grain is permitted, he must necessarily intend to permit it; otherwise he would not keep the place where it is carried on by other parties. Weare Com. Co. vs. People, 209 111. 528. Where transactions show that commodity was ordered to be delivered in the future, and then sold out upon a rise in the market before the day of delivery arrived, and such transactions are carried on in the office of a particular person, and with his aid and consent, a presumption of his knowledge of what is going on is made by the law, without any requirement of proof on the part of the People. Weare Com. Co. vs. People, 209 111. 528. Weight and Sufficiency : — Xo Intcniion to Deliver: Proof that the main part of a business is dealing in futures on margins without any intention of delivering the commodity sold or receiving that purchased, is sufficient to establish the keeping of a bucket shop. Stock Exchange vs. Board of Trade, 196 111. 396. — Intention of Keeper: It is not necessary to show the -inten- tion of the keeper of an office or place of business, to bring the transaction within the prohibition of the statute. Soby vs. People, 134 111. 66 ; Caldwell vs. People, 67 App. 367. The intention of the parties in such case may be determined from the nature of the transaction, and from the method and man- ner of carrving on the business. Weare Com. Co. vs. People, 209 111. 528. If parties to speculative dealings intend merely to gamble, in the rise and fall of prices, and the broker is privy to the unlawful design of the parties and brings them together for the very pur- pose of entering into an illegal agreement, he is particeps cnminis. Weare Com. Co. vs. People, 209 111. 528 ; Soby vs. People, 134 111. 66. — No huiuiry of Customer: Where office or place is kept and buying and selling upon margins is proven, the keeper cannot shield himself from criminal responsibility behind the fact that he made no inquiry of his customers; the keeper must show that the transaction is not gambling. Soby vs. People, 134 111. 66; Stock Exchange vs. Board of Tradfc, 196 111. 396. 214 . BUILDINGS — Circulars as to Requirements: The fact that circulars sent to customers contained a statement to the effect that "actual de- livery of property is contemplated," may be considered as show- ing that something other than the securing of a legal right was intended. Weare Com. Co. vs. People, 209 111. 528. — Signing by Customer of Contract to Receive: The fact that a stock and grain exchange requires its customers to sign con- tracts to receive the commodities purchased does not establish that the purchases were not within the prohibition of the statute, where the evidence also shows that any customer objecting to delivery had no diliiculty in settling with the exchange by payment of dif- ferences. Stock Exchange vs. Board of Trade, 19G 111. 396. — Corpora fc Stocl's: In a prosecution under section 137 of the Criminal Code, for keeping a bucket shop, the state must establish that the pretended sale of stocks was made and that the stocks were the stocks of a corporation. In such prosecution, the court will not taJce .indicia] notice of corporate existence. People vs. Wirshing, 2^9 111. 522." Intention : The question of intention is a question for the jury, or for the court, to be determined bv a consideration of all the evidence. •'■'i '''J Weare Com. Co. vs. People, 209 111. 528. BUILDINGS Burden of Proof: — ■ Ftima Fade Realiij: Buildings are prima facie part of the land and if claimed to be personalty, burden is on party so alleg- ing. Goff vs. O 'Conner, 16 111. 421. BUILDING CONTRACTS Admissibility of Evidence: — Li nder Pleading: Where a building contract has been fully performed, and the final certiticate obtained, and it only remains to pay balance due, the contractor may sue and recover under common counts, and the contract may be read in evidence for purpose of showing its terms, and to recover damages. Metal Fire Proof Co. vs. Boyce, 233 111. 284; Concord House Co. vs. O 'Brien, 228 111. 360. But when contract provides for an architect's certificate, such provision is a condition precedent to a right of recovery and the excuse for the non-production of such certificate must be alleged and proven. AVlien contractor has not procured certificate which contract requires, a recovery cannot be had under common counts, but only upon a declaration setting out the contract alleging per- formance and averring reason why certificate was not procured. Met. Fire Proof Co. vs. Boyce, 233 111. 284; Hart vs. Carsley Mfg. Co., 221 111. 4^4. .-""" BURDEN OF PKOOF 215 Wsight and Sufficiency of Evidence: Under contract providing tiuit no payment or certificate "ex- cept the final certificate or final payment ' ' shall be conclusive evi- dence of the performnace of the contract, the final certificate is cou- chisive evidence of the performance except for fraud or mistake, and it is not essential to the right of contractor to recover upon such certificate that he prove the work was done in accordance with plans and specifications. Weld ^s. Bank. 255 111. 43; Concord House Co. vs. O 'Brien, > 228 111. 360; Bottling Co. vs. Ferguson, 223 111. 88; Stilfssberg vs. City of St. Charles, 154 App. 531 ; XI 111. Notes 693, g 65. And evidence to contradict such certificate, without offering to show fraud or mistake, is inadmissible. Concord House Co. vs. O'Brien, 228 111. 360; Hennessy vs. Metzger, 152 111. 505; Downey vs. 'Donnell, 92 HI. 559; Lolir Bottling Co. vs. Ferguson, 223 111. 8S; Barbee vs. Findley, 221 111. 251; Weld vs. First Natl. Bank, 255 111. 43. Where the final certificate of building superintendent, showing amount due contractor, has been lost, and proof of such fact is made, secondaiy evidence of contents of certificate is admissible in action by contractor to recover upon the common counts. Concord House Co. vs. O'Brien, 228 111. 360. An architect's certificate of damages, based upon matters out- side the contract and upon ex imrtc statements of owner, with- out notice to contractor, is void as an award of damages, and is not admissible in evidence in action for balance due under contract. Young vs. Wells Glass Co., 187 111. 626; Mills vs. Weeks, 21 HI. 561. BURDEN OF PROOF Defined: The term "burden of proof" has two distinct meanings. By the one is meant the duty of establishing the truth of a given proposition or issue by such a quantum of evidence as the law demands in the case in which the issue arises; by the other is meant the duty of producing evidence at the beginning or at any subsequent stage of the trial, in order to make or meet a jjnnia facte case. Generally speaking, the burden of proof, in the sense of pro- ducing evidence, passes from party to party as the case progresses, while ^the burden of proof, meaning the obligation to establish the truth of the claim by a preponderance of the evidence, rests through- out upon the party asserting the affirmative of the issue, and un- less he meets this "^obligation upon the whole case, he fails. This burden of proof remains with him to the end. Chi. U. Trac. Co. vs. Mee, 218 111. 9; Supreme Tent vs. Stensland, 206 111. 124; Egbers vs. Egbers, 177 111. 82. General Rules : The burden of proof to establish the truth of a claim by a pre- ponderance of the evidence rests throughout upon party assert- ing the affirmative of the issue. ^^ ^ ■< o^r- Chi. U. Trac. Co. vs. Mee, 218 111. 9; Supreme Tent vs. Stenslana, -06 111. 124- Egbers vs. Egbers, 177 111. 82; Stevenson vs. Marony, 29 111. 532 ; XII HI. Notes 480, § 46. 216 BURDEN OF PROOF The party holding the affinnative of an issue must prove it, and until affirmative is established by proof, negative is presumed to exist. Union Natl. Bank vs. Baldenwick, 45 111. 375. The burden of proof, in all cases, must rest upon the party against whom is thrown the weight of the presumption as to the facts which the law raises. Wilbur vs. Wilbur, 129 111. 392. The burden of proof is upon him who has the affirmative of the issue, but there is an obvious distinction between the affirmative of the issue and the affirmative of the question. The affirmative of the issue is with him who affirms or asserts a matter in support of his claim or defense, regardless of whether he affirms or as- serts the affirmative or negative of the question at issue. Postlewaite vs. Highby, 83 App. 414. AVhere a party asks a court to believe a proposition, and to base a finding thereon in his favor, the law casts the burden on him of furnishing the evidence upon which such finding can legally rest. Prentice vs. Crane, 234 111. 302. As Determined by Pleadings: The burden of proof is determined by the pleadings, and the condition of the proof, and notwithstanding, where plea is of gen- eral issue, that defense is an affirmative one. Adams vs. Pease, 113 App. 356; Abhau vs. Grassie, 262 J 11. 636. "Whenever, whether in plea or replication or rejoinder or surre- joinder, an issue of fact is reached, then whether the party claim- ing the judgment of the court asserts an affirmative or negative proposition, he must make good his assertion. On him lies the burden of proof. Osgood vs. Groseclose, 159 111. 511. Affirmative : The burden of maintaining the affirmative of the issue involved in an action is upon party alleging fact which constitutes the issue, and this burden rests upon him throughout the trial. Chi. U. T. Co. vs. Mee, 218 111. 9; Cont. Ins. Co. vs. Kogers, 119 111. 474 ; Abhau vs. Grassie, 262 111. 636. As to Shifting of Burden: Technically, the burden of proof in any case is determined by the issues and does not shift, and at the end of the case, the pleader, upon whom burden rests, must have sustained his position by a preponderance. Michael vs. Marshall, 201 111. 70. Negative in Issue : — Quantity of Proof: The effect of the negative form of issue is not to relieve the party making such charge of burden of intro- ducing any proof, but the law will be satisfied with less quantity of proof; and this is particularly so where there is concurring circumstance of the facts being within the knowledge of the ad- verse party. Evidence which renders the existence of negative probable may be sufficient in absence of proof to contrary. Full and conclusive proof where a party has burden of proving a nega- tive is not required, but even vague proof or such as renders the BURDEN OF PROOF 217 existence of the negative probable is, in some cases, sufficient to change the burden to the other party. .,!,.|,, Preiitiee vs. Cnine, 234 111. 302; Welsh vs. Shumway, 232 111. 54; Eexroth vs. Schein, 206 111. 80; Dorsey vs. Brigham, 177 111. 250; Beardstowu vs. Virginia, 76 111. 34; Graves vs. Bruen, 11 111. 431; Cf. Union Natl. Bank vs. Baldeuwiek, 45 111. 375. . — Where License Required: In prosecutions for a penalty for doing an act which the statute does not permit to be done by any person except those who are duly licensed therefor, when the act is proven the burden is on the party to show such license, and neg- ative of the license is not required. Prentice vs. Crane, 234 111. 302; Harbaugh vs. City of Monmouth, 74 111. 367; Chandler vs. Smith, 70 App. 658. Such evidence as, in absence of counter evidence, affords rea- sonable ground for presuming that a negative averment is true, is sufficient to throw the liurden of proof upon the adversary. Cole vs. Cole, 153 111. 585; Eyan vs. Hamilton, 205 111. 191; Vigus vs. O'Bannon, 118 111. 334; Parry vs. Squair, 79 App. 324. — Knowledge of Adversary: Where a fact is peculiarly within the knowledge of one of the parties, he has the burden of proving it whether the proposition is affirmative or negative. City of Chicago vs. Dunham, 161 App. 307; Robinson vs. Robinson, 51 App. 317; Williams vs. People, 121 111. 84; People vs. Nedrow, 16 App. 192. But where a party is bound to aver a negative, he is also bound to prove it, if the means of proof are equally within the control of both parties. G. W. R. E. Co. vs. Bacon, 30 111. 347; Berner vs. Brotherhood of Yoemen, 154 App. 27; Abhan vs. Grassie, 262 111. 636. Abandonment : — Contract: Where one seeks to evade the enforcement of a written contract, alleging that same was abandoned and the sub- stitution of an oral contract, he has the burden of proving alleged new agreement. Croft vs. Perkins, 174 111. 627. , — Highway: Is upon party alleging, to prove abandonment, by clear and satisfactory evidence. Highway Comrs. vs. Kinahan, 240 111. 594; Cox vs. Comrs. of High- ways," 194 111. 355. — Easement: The burden of proving abandonment rests upon partv asserting it. Hunt vs. Sain, 181 111. 372. Abduction : Burden is on defendant to show female's past life and conversa- tion unchaste. Bradshaw vs. People, 153 111. 156; Slocum vs. People, 90 111. 274. Abortion : Burden of proof is upon defendant alleging same, in action on benefit certificate, to prove each and every element constituting the crime. Brown vs. Mystic Workers, 151 App. 517. Abstracts of Title: Burden is upon party offering them to bring them, by proper proof, within terms of statute. C. & A. R. R. Co. vs. Keegan, 152 111. 413; Pumphrey vs. Giggey, 150 App. 473. 218 BURDEN OF PROOF Acceptance : Of orders for payment of money, burden is upon plaintiff. Dillon vs. Moritz, 97 App. 1. Accident : In action upon accident policy, burden to establish death of assured by accident is upon plaintiff. Wilkinson vs. Service, 240 111. 205; Moore vs. I. C. M. A., 166 App. 38; Cent. Ace. Ins. Go. vs. Spence, 126 App. 32. Accord and Satisfaction: The burden of proving an accord and satisfaction or a release is upon party asserting it. Wallner vs. Chi. Con. Trac. Co., 150 App. 242; McDavitt vs. Mc- Kay, 78 App. 396; American vs. Eumpfert, 75 111. 228. Account Stated: A defendant, in action charging an account stated, may show fraud or mistake but burden of proof is upon such defendant. Wurlitzer vs. Dickinson, 153 App. 36. Acknowledgment : One seeking to impeach certificate of acknowledgment to a deed has burden of establishing his claim by clear and convincing proof. Duncan vs. Duncan, 203 111. 461; Critten vs. Dickerson, 202 111. 372. Adoption : One claiming to be an adopted child for purpose of inheritance must prove the petition for adoption contained the necessary re- quirements to confer jurisdiction upon the court. Kennedy vs. Borah, 226 111. 243. Adultery : The burden of proving adultery is upon the party alleging same to establish it by a preponderance of the evidence. Heyman vs. Heynian, 210 111. 524; Lenningf vs. Lenning, 176 111. 180; Jenkins vs. Jenkins, 86 111. 340; Carter vs. Carter, 62 111. 439. Adverse Possession : A party claiming by adverse possession must prove his posses- sion was adverse to the true owner, by clear and positive evidence. Kirby vs. Kirby, 236 111. 255. Age: — Eape WitJiout Force: Age of accused, burden is upon People to prove. Wistrand vs. People, 213 111. 72. Burden is upon People to show female was under age of consent. Wistrand vs. People, 213 111. 72; Addison vs. People, 193 111. 40?. — Rape with Force: Burden of proof is upon defendant to show that he was under the age of fourteen years. Sutton vs. People, 145 111. 279; People vs. Schultz, 260 111. 35. Agency : The burden of establishing agency rests upon party alleging it. Schmidt vs. Shaver, 196 111. 108; Cabiness vs. Texas Tie Co., 152 App. 406; Chesley vs. Woods Motor Co., 147 App. 588; Good vs. Akin, 147 App. 390; Kearney vs. Aetnae Ins. Co., 109 App. 609; XIV 111. Notes 106, § 224. "Wliere defendant, in action on warranty, defends on ground BURDEN OF PROOF 219 that in warranting lie acted as agent, he has tlie bitrden of show- ing that he had authority to bind his alleged principal. Wheeler vs. Eeed, 36 111. 81. Alibi: ;,. . The burden of establishing an alibi is on defendant. Flannegan vs. People, 2l4 111. 170; Iloiiser vs. People, 210 111. 253; Carletou vs. People, 150 111. 181; Anneals vs. People, 13-1 ID. 401. Alterations : — Ill General: After proof by defendant tending to show alter- ation, the burden of proof on the whole ease is upon plaintiff to show that no alter;ition was made, or that it was made with the consent of defendants or that they ratified same. Merritt vs. Dewey, 218 111. 599; Catlin Coal C9. vs. Lloyd, 180 11). 398; Esgman vs. Nutter, 155 App. 390; Dewey vs. Merritt, 106 App. 15(5. , — Apparent: If a document produced in court appears to have been materially altered and under circumstances which may be sus- picious, the burden of explaining its appearance rests upon party otfering it. Landt vs. MeCulloiigh, 206 111. 214; Webster vs. Yorty, 194 111. 408; Gage vs. City of Chicago, 225 111. 218; Hodge vs. Gilliman, 20 111. 437; Gillett vs. Sweat, 6 111. 475; Grand Lodge vs. Young, 123 App. 628; XI 111. Notes 95, §22. — Non Apparent: If, upon inspection, alteration is not appar- ent, court may admit instrument in evidence, leaving defendant to show fact of alteration. Merritt vs. Boyden, 191 111. 136; Lowman vs. Auljrey, 72 111. 619; McAllister vs. Avery, 17 App. 568; Conkling vs. Olnistead, 63 App. 649. — Deite of: The law indulges no presumption as to when a change in a written instrument was made, but reciuires the party otfering an altered instrument in evidence, if the alteration is material, to explain such alteration satisfactorily to the court, before the instrument will be admitted in evidence. Gage vs. City of Chicago, 225 111. 218; Catlin Coal Co. vs. Lloyd, 180 111. 398; Milliken vs. Marliu, 66 111. 13; DeLoug vs. Soucie, 45 App. 235, Ambiguity : Burden of proving a latent ambiguity is upon one claiming exist- ence and benefit. Bradish vs. Yocum, 130 111. 386. Animals: Plaintiff has burden of proving owner's laiowledge of vicious character of domestic animals. Feldnian vs. Sellige, 110 App. 130; West Chi. 8t. Ry. Co. vs. Walsh, 78 App. 595; Breitnian vs. Brauu, 37 App. 17; Domm vs. Hollen- bech, 259 111. 382. Ante-Nuptial Contract: If the provision made for the wife in an ante-nuptial contract is disproportionate to the husband's means, burden is upon those claiming under husband to prove that the wife had full knowl- edge of all the facts and circumstances which materially alfect the contract. Miner vs. Phee, 254 111. 60; Warner vs. Warner, 235 111. 448; Col- bert vs. Eings, 231 111. 4.Q4 ; Murdock vs. Murdock, 219 111. 123. 220 BURDEN OF PROOF Assault and Battery: — Civil Action for Damages: The burden of proof is upon plaintiff to show either that the intention was unlawful or that defendant was in fault. Paxton vs. Boyer, 67 111. 132 ; Eazor vs. Kinzie, 55 App. 605 ; See also People vs. Hart, 156 App. 523. — Under Pleadings: On issue taken upon replication de injuria to a plea of son assault demesne, burden is upon defendant to prove that the assault was made in neecessary defense, and that, in making the assault he used no more force than was necessary to protect himself. Gizler vs. Witzel, 82 111. 322 ; Hulse vs. Tolman, 49 App. 490. Where a defendant has pleaded son assault demesne, burden is upon him notwithstanding the interposition likewise of a plea of the general issue, to estal)]ish a justification for the assault. Spenler vs. Tiivley, 158 App. 146; Wells vs. Englehart, 118 App. 217. True rule under such pleadings, the general issue requires plain- tiff to prove an assault by defendant, but when that assault is proven, the burden of proving prior assault by plaintiff is upon defendant. Kehl vs. Burgener, 157 App. 468. Where a defendant has pleaded moderate castigavit, and plain- tiff replied de injuria, burden is upon defendant. Swigart vs. Ballou, 106 App. 226. Assent : — Contract of Carrier: Where a contract limiting the liability of the carrier is contained in a bill of lading, constituting both a receipt and contract, burden is upon carrier to show that shij^per assented to terms and conditions of contract. Pflaff vs. Pacific Express Co., 251 111. 243; Wabash E. E. Co. vs. Thomas, 222 111. 337; C. C. C. & St. L. Ey. Co. vs. Patton, 203 111. 376; Tobermann vs. T. St. L. & W. Ey. Co., 159 App. 200; Warica vs. C. C. C. & St. L. Ey. Co., 156 App. Ill; Childers vs. C. & A. Ey. Co., 166 App. 391; XI 111. Notes 762, § 181. — Restrictive Conditions: Burden is upon telegraph company to show assent to restrictive conditions. Beggs vs. Postal Cable Co., 258 111. 238. And this rule applies to receiver as well as sender of message. Webbe vs. West Un. Tel. Co., 169 111. 610. Assignment. — Ecpdtahle: Where a person claims an equitable assignment, of a portion of a demand, he has the burden of showing the assign- ment by satisfactory evidence. Matheson vs. Magni;sou, 226 111. 368; Wyman vs. Snyder, 112 111. 99; Crandall vs. Lumber Co., 164 111. 474. — Bad Faith: One who assails title of assignee of bill before maturity, has burden of proving by a preponderance of evidence that he acted in bad faith. Bradwell vs. Pry or, 221 111. 602. But after defendant has shown title of payee to have been de- fective, burden of proof is upon assignee to establish that he took the instrument in suit in good faith and for value. Schintz vs. American Bank, 152 App. 76. Assumpsit : Under the general issue in assumpsit, it devolves upon the plain- BURDP]N OF PROOF 221 tiff to prove the defendant's promise as charged in the declaration, by direct proof, or to show hy the evidence a state of facts from which the hiw will imply such a promise. Bridge Co. vs. Comrs. of Highways, 101 111. 518; Matier vs. Beaird, 8 App. 409. So, also, under the general issue, plaintiff has burden not only of proving the contract, but also the breach of it as assigned in his declaration. Ward vs. Athens Mfg. Co., 98 App. 227. Attachment : — Pica ill Abatement: Burden of proof rests upon plaintiff to establish grounds of attachment stated in his affidavit, when same is put in issue by plea in al)atement. Jaycox vs. Wing, 66 111. 182; Wells vs. Parrott, 43 App. 656; Towle vs. Lamphere, 8 App. 399. — Owncrsliip: Where a person intervenes in proceeding by attachment, claiming to o-wn the property attached, he has the burden throughout of showing his ownership. Hollenbeck vs. Todd, 119 ill. 543 ; Bank vs. Crow, 56 App. 558. — Fraudulent: Burden of establishing fraudulent character of attachment proceedings is upon party asserting such claim. Smith vs. Berz, 125 App. 122. Attorneys : The relation of attorney and client having been shown, burden rests upon attorney to show fairness, accuracy and equity in trans- actions between him and his client. Day vs. Wright, 233 111. 218; Mansfield vs. Wallace, 217 111. GIO; Willis vs. Burdette, 172 III. 117; Morrison vs. Smith, 130 111. 304; XI 111. Notes 491, § 95. Authority: — In General: Where there is prima facie proof of a right in a person, burden of disproving it is upon person who disputes the right. Eobiuson vs. Eobinson, 51 App. 317, — Of Laic: Burden is upon plaintiff to show that law was not complied with and not upon defendant to show that it was. People vs. Moore, 240 111. 408. — Agent: Party relying upon authority of agent has burden of proof. U. S. Wringer Co. vs. Cooney, 214 111. 520; Cabiness vs. Texas Pres. Co., 152 App. 406; Jackson Co. vs. Com. Bank, 199 111. 151. — Corporate Officer: Where authority of ofticer to bind cor- poration is contested, hurden is upon party asserting want of au- thority to sustain his position. Hanover Coal Co. vs. Piillne, 137 App. 559. — Partner: A note or bill made by one partner in the name of the firm, will be presumed to have been made in the course of partnership dealings, and the burden of proof is upon him who seeks to impeach it, to show the contrary, and that such fact was within the knowledge of the payee. Gregg vs. Fisher, 3 App. 261. 222 BURDEN OF PROOF Burden of proving authority to bind partners in non-trading firm is upon plaintiff. Teed vs. Paisous, 202 111. 455; Ulery vs. Ginrich, 57 111. 531. iif^ Stranger: Burden of showing authority to indorse a check is upon party asserting. Jackson Paper Co. vs. Com. Natl. Bank, 199 111. 151. Award: Burden of proof is upon objectors to impeach validity of award. Seaton vs. Kendall, 171 111. 410; Darst vs. Collier, 86 111. 96; Hay- wood vs, Harmon, 17 111. 477. Banks : — State of Account: Where a bank depositor, in a suit against a bank, shows his deposits of money, the burden will rest upon the bank to establish by competent evidence that same has been paid out by or under authority of depositor. UeLand vs. Dixon Natl. Bank, 111 111. 323. — Paifment of Chech: Burden of proving that payment of check bv bank was proper is upon bank. 'Chi. Savings Bank vs. Block, 120 App. 129. Bankruptcy : Where defendant pleads a discharge in bankruptcy, his proof of such discharge is prima facie a bar to the claim sued upon, and burden of proof is upon plaintiff to show claim sued upon is not within the terms of the bankrupt's discharge. Van Norman vs. Young, 228 HI. 425; Ailing vs. Stratka, 118 App. 184. Bad Faith : — Negotiable Instrument : One who asserts bad faith in holder of title to negotiable instrument has burden of proof. Bradwell vs. Pryor, 221 111. 602; Meritt vs. Boyden, 191 111. 136; Bemis vs. Horner, 165 111. 347. — Color of Title: Burden of proof is upon party alleging bad faith by the holder of color of title. Peabody Coal Co. vs. Burri, 255 111. 592; Dawson \f. Edwards, 189 111. 60. Bailment: Where goods are placed in the hands of bailee in good condition, and they are returned in a damaged state or not returned at all, in action by bailor against bailee, the law will presume negligence on part of latter and impose upon him the burden of showing he exercised such care as was required bN^ the bailment. Miles vs. Int. Hotel Co., 167 App. 440 ; Tate vs. M. P. Co., 157 App. 105; C. & A. Ey. Co. vs. P. & P. U. Ey. Co., 157 App. 583; Sinse- bautjh vs. Ey. Co., 149 App. 642; Brewster vs. Weir, 93 App. 588; Burlingame'vs. Horn, 30 App. 330; Punkhouser vs. Wagner, 62 111. 59. Bastardy : Burden of establishing paternity of child is on complainant. Johnson vs. People, 140 111. 350; Peek vs. People, 76 111. 289. Bonds : Plaintiff has burden of proving breach complained of occurred during term of l)ond. Mystic Workers vs. U. S. F. G. Co., 152 App. 223; Stern vs. People, 96 111. 475. BURDEN OF PROOF 223 Breach of Promise: Burden of proving promise by preponderance of evidence is upon plaintiff. McPhail vs. Trovell, 65 App. 660. • Breach of Covenant : The burden of proof is upon party asserting damage from breach of covenant of title, lioth to show amount paid is an incumbrance, and to show that such amount was the reasonable value of interest acquired. MeCord vs. Massey, 155 111. 123. Breach of Contract: One suing on contract, must aver and prove performance by him of conditions necessary to fix defendant's liability, or he must aver either his rejected offer to perform such conditions or his willing- ness to perform until defendant's conduct excused performance. Tichenor vs. New^nau, 186 111. 264; Watson vs. Mickleberiy, 145 App. 624. So, in action upon contract for non-delivery of personal prop- erty contracted for, where obligation to pay and deliver were con- current, in order to recover, plaintiff must aver and prove his readiness and willingness to perform his part of the contract, and a demand for articles to be delivered. Pahlman vs. King, 49 111. 266; Hoiigli vs. Eawson, 17 111. 5S8; Hun- gate vs. Eankin, 20 111. 639. Brokers : Plaintiff must show by a preponderance of evidence that he produced a purchaser ready, willing and able to buy the prop- erty in question, upon the terms at which owner was willing to sell. Waiss vs. Cannon, 146 App. 379; Schmidt vs. Keeler, 63 App. 487. In action by brokers for commission for purchasing stock, bur- den of proof is upon the broker to show purchase and defendant is not estopped from requiring such proof by reason of having given the order to purchase. Hately vs. Riser, 253 111. 288. The burden is upon the shipper to establish the contention that the broker did not follow instructions relative to sale of grain and mat loss was sustained thereby. Cleveland Grain Co. vs. Vant, 171 App. 104. Building's : Are priiiia facie part of the land and burden is on party alleg- ing building to be persona It v. Gobb vs. O 'Conner, 16 111. 421. Cancellation of Instruments : — General Rule: Burden of proof is upon party seeking can- cellation to establish grounds for. Oliver vs. Oliver, 110 111. 119. — Fraud and Undue Influence: The burden of proof is upon complainant to show truth of charges of fraud and undue influence as ground for setting aside his deed. Beatty vs. Hood, 229 111. 562; Willenou vs. Dunn, 93 111. 511. — Insanity: On bill by conservator to set aside a conveyance made by his ward on the ground of insanity of grantor, and un- due influence of grantee over him, burden of is upon complainant 224 BURDEN OF PROOF to prove one or both of these allegations by a preponderance of the evidence. Blanchard vs. Blanchard, 191 111. 450: English vs. Porter, 109 111, 285. — Fact Of: Cancellation of insurance policy, burden is upon defendant company to prove. Natl. Fire Ins. Co. vs. Lumber Co., 119 App. 67. Burden is upon party alleging cancellation of contract. Bartellot vs. Int. Bank, 119 111. 259. Carriers : In action for injury to stock, burden of proving exemption is upon carrier. Ey. Co. vs. Hamilton, 76 HI. 393. Upon loss of goods by express compan}^, burden is upon com- pany to show a legal excuse. Express Co. vs. Sehier, 55 111. 140. Chancery : — Upon Replication: Where a defendant in chancery, in his answer, admits all allegations of the bill, and seeks to avoid them by setting up new matter, not responsive to the bill, and a repli- cation is interposed, onus of proving new matter is upon defend- ant, and complainant has no facts to prove, as a party is not re- quired to prove facts alleged in his pleadings which are admitted by pleadings of opposite party. This is the rule, though the an- swer which sets up such new matter be sworn to. Pankey vs. Eaum, 51 111. 88; Cooper vs. Tyler, 40 111. 462. — In Absence of Replication: Where a case is fieard upon bill and answer, or upon bill, answer and exhibits, without challenge by replication, the answer is taken as true. Comiolainants thereby admit that all that is stated in the answer is true, and whether it be responsive to the bill or not, they have no ground of relief except the facts which are substantially admitted in the answer to be true. Kingman vs. Mowrey, 182 111. 256; Cook County vs. G. W. E, E. Co., 119 111. 218; Fordyce vs. Striver, 115 111. 530; Mason vs. McGirr, 28 111. 322; Goddard vs. C. & N. W. Ey. Co., 104 App. 526; Medical College vs. Zeigler, 86 App. 360; Cf. Chambers vs. Eowe, 36 111. 171; Kaegbein vs. Higgre, 51 App. 538. Chastity : Presumption in prosecution for abduction is that female's pre- vious life and conversation were chaste and onus is upon defend- ant to show otherwise. Bradshaw vs. People, 153 HI. 156; Slocum vs. People, 90 111. 274. Citizenship : AVhere one assumes to prove that another person is not a citi- zen of this state, the burden of proving a negative is necessarily imposed upon him who raises the question of the citizenship. The one so questioning the right is not re(iuired to produce full and conclusive proof but is only bound to introduce such proof as renders the existence of the negative probable, and when that is done, it is deemed sufficient to shift the burden of proof to the opi30site party. Behrensmeyer vs. Kreitz, 135 111. 591; Eexroath vs. Sehein, 206 III. 80. BURDEN OP PROOF 225 Cloud on Title : The burden of proving an allegation in bill to remove cloud from title, that complainant was in possession of the property at time bill was filed, is on complainant, and such proof is essential to the granting of the relief prayed. Glos vs. Archer, 214 111. 74; Glos vs. Kemp, 192 111. 72- Glos vs Bec'kman, 188 111. 158; Glos vs. O 'Toole, 173 111. ;J6();' Glos vs! Eandolph, 133 111. 197; Stanuard vs. A. E. Ry. Co., 220 111. 469. Such averment must be proven. Lister vs. Glos, 236 111. 95. And it is essential that the owner either sliow that he is in pos- session or that property was vacant and unoccupied. Glos vs. Hiiey, 181 111. 149; Johnson vs. Huling, 127 111. 14. Competency of Witnesses: Burden is upon party ol)jecting to competency of a witness to show his incompetency. Standley vs. Moss, 114 App. 612. Compromise and Settlement: Where fact of settlement is established, burden of proof is upon party assailing same. Beebe vs. Smith, 194 111. 634; Straubher vs. Mohler, 80 111. 21; MeElhaney vs. People, 1 App. 550. Computation : Where deductions upon a contract in suit is a mere matter of computation, and the proof is equally in possession of the parties, the burden of proof is upon claimant. Bernor vs. Brotherhood of Yeoman, 154 App. 27. Confession and Avoidance: Where issue is taken on a plea of confession and avoidance, burden of proving the defense set up in the plea rests on pleader. Miller vs. Solott, 131 App. 196; Micheals vs. West, 109 App. 419- C. B. & Q. Co. vs. Bryan, 90 III. 126. Confusion of Goods: The burden is upon party confusing his goods with those of another, to identify his own property. First Natl. Bank vs. Sehween, 127 111. 573; Diversy vs. Johnson, 93 111. 547. Consideration : — Instruments Under Seal: Where- a contract under seal recites an adequate consideration, the burden is on him who seeks to avoid the contract to impeach the recital by a clear preponderance of the evidence. McFarland vs. Williams, 107 111. 33; Ruppert vs. Frauenknecht, 146 App. 397. — Release: The burden of proof is upon plaintiff to establish that a release set up by defendant as a defense to an action for personal in.juries was, as set up in his replication, without valu- able consideration and procured by fraud. St. L. & B. E. Ry. Co. vs. Erli'nger, 112 App. 506; Coats vs. :\Iiller, 99 App. 227; E. St. L. Packing Co. vs. Hightower, 9 App. 297. — Illegal: Where a part.y alleges that his written promise is invalid because founded in part upon an illegal consideration, bur- den of establishing such contention is upon him. Douthart vs. Congdon 98 App. 487; Johnson vs. Milmine, 150 App. 208. Ev.— 1 5 226 BURDEN OF PROOF — Promissory Note: Burden of proof is upon defendant to prove want of consideration. Cleiiieut vs. Bladvvorth, 166 App. 68; Jones vs. Bales, 161 Apj). 194; Eweu vs. Templetou, 148 App. 46; Holmes vs. Horn, 120 App. 359; Chi. T. & T. Co. vs. Ward, 113 App. 327; XI 111. Notes 632, §407. — Partial: Where plea of partial failure of consideration is interposed, burden of proof is upon defendant. Kelly vs. Strider, 148 App. 238; Chi. T. & T. Co. vs. Laiidfield, 73 App. 173; Topper vs. Snows, 20 111. 434; Honeyinau vs. Jarvis, 64 111. 366; Jones vs. Bates, 161 App. 194. — Different Consideration: Burden is on party claiming a different consideration. Pbelps vs. Jenkins, 5 111. 48. Conspiracy : Burden of proof is upon prosecution to prove beyond reasonable doubt conspiracy alleged. Johnson vs. People, 124 App. 213. Contempt : The party bringing the accusations is, in absence of an admis- sion of defendant, bound to prove existence of order and its vio- lation. People vs. Weigley, 155 111. 491. Failure to pay alimony as ordered is prima facie contempt and the burden is upon respondent to show a valid reason for such failure. Boyden vs. Boyden, 162 App. 77. Contested Elections: — In General: Burden of showing that illegal, irregular and wrongful acts affected the result of the election, rests upon party alleging same, Kreitz vs. Behrensmeyer, 125 111. 141. — Illegal Voting: One alleging illegal voting has burden of proof, as a crime is thus charged which will be presumed has not been committed. Uorsey vs. Brigham, 177 111. 250. — Condition of Ballots: The contestant in an election case is the moving party, and burden is upon him to show that the ballots are those cast at the election and that they are in the same condi- tion as when cast, and it is not incumbent upon defendant to show that the ballots offered to impeach his title have been changed. Graham vs. Peters, 248 111. 50; West vs. Sloan, 238 111. 330. Contracts : — Terms anel Conditions: The burden of proof lies upon a party seeking the enforcement of a contract to establish the terms and conditions of same as alleged by him. Young vs. Farwell, 146 111. 466; Thom. Express Co. vs. Kemper Bros., 159 App. 85; Ward vs. Mining Co., 98 App. 227. — Construction: Where a suit is brought upon a contract, bur- den of proof is upon plaintiff to establish his version by a pre- ponderance of the evidence. Bracewell vs. Self, 109 App. 140. — Illegal Consideration: When a party alleges that his writ- BURDEN OF PROOF 227 ten contract is invalid because founded in part npon an illegal consideration, burden of establishing such contention is upon hini. Douthart vs, Congdon, 98 App. 487; Johnson vs. Milmiue, 150 App. 208. — Of Sale: In forcible entry and detainer, burden is upon tenant who alleges contract for purchase of premises. Leary vs. Pattison, 66 111. 203. — Different Contract: Burden is upon party alleging. Osgood vs. Groseclose, 159 111. 511; Miller vs. Mandcl, 259 HI. 314. Conveyances : — Fraud: To impeach a conveyance, complainant must aver and prove that he was a creditor at the date thereof. Clayton vs. Clayton, 250 111. 433; State Bank vs. Barnctt, 250 IH. 312; Bittinger vs. Kasten, 111 111. 260; Moritz vs. Hoffman, 35 111. 553. Fraud must be proven by a preponderance of the evidence and burden is upon party alleging. Amer. H. & D. Co. vs. Hall, 208 111. 597; McGinnis vs. Stowe, 153 App. 454; Wood vs. Clark, 121 111. 359; Sawyer vs. Moyer, 109 111. 461. — Voluntary Conveyances: The conveyance being voluntary, and grantor having become insolvent, burden of proof devolves upon him to disprove implication of fraud as to pre-existing credi- tors, arising from making of convevance. Kennard vs. Curran, 239 111. 122; Victor vs. .Swiski, 200 111. 257; Dillman vs. Nadelhofer, 162 111. 625. — CJiihl to Parent: Where a deed is procured by a parent from a child for the real estate of the child, without consideration, bur- den is upon parent to show the transaction was fair and entered into by child fully understanding his rights and fully comprehend- ing the transaction by which he parted with title to his land, and that transaction was for benefit of child. McLaughlin vs. McLaughlin, 241 111. 366; Ferns vs. Chapman, 211 111. 597 ; White vs. Ross, 160 111. 56. — Parent to Child: The presumption of delivery of a voluntary deed from father to infant child is strong and burden is upon grantor to show clearlv that there was no delivery. Abbott vs. Abbott, 189 111. 488. Corporations : — Pica of Nul Ticl Corporation: Burden is upon plaintiff to show corporate existence. Cozzens vs. Chi. Press Brick Co., 166 111. 213; Stono vs. G. W. Oil Co., 41 111. 85; Concord A. H. Co. vs. Refrigerator Co., 78 App. 683; Dean & Son vs. Conkey Co., 180 App. 162; XI 111. Notes 1054, §51. — Execution of 3Iortgagc: The execution of a mortgage, under seal of a corporation, regular on its face, and by the properly con- stituted officers, is prima facie evidence the mortgage was executed by authority of the coi'poration, and parties objecting take on themselves the burden of proving it was not so executed. Wood vs. Wheeler, 93 111. 153. Credit: A party who, by way of defense, seeks to obtain credit for a par- ticular item, is bound to assume and prove by a preponderance of the evidence that he is entitled to such credit. Chapman vs. Meiling, 147 App. 411. 228 BURDEN OF PROOF Creditor's Bill: A debtor who, when largely indebted and shortly before becom- ing insolvent, makes a voluntary conveyance to his wife, has the burden of disproving the implication of fraud, as to existing credit- ors, arising from the making of the conveyance. Kennard vs. Curran, 239 111. 122, Death : In civil action, the facts from which the law presumes the death of a missing person must be proven by a preponderance of the evi- dence, but it is not necessary that the evidence shall be sufficient to remove all reasonable doul)t that such person is alive. Keunedy vs. Modern Woodmen, 243 111. 560. Debt: When plaintiff in action of debt joins issue upon plea of nil debit, he must prove every allegation of his declaration. Foster vs. People, 121 App, 165. Dedication : To establish a common law dedication of highway, it is essential that the proof be clear and unequivocal as to the intention of the proprietor to dedicate to public use. City of Chicago vs. Wilder, 2-10 111. 215; Wheatfield vs. Gruneman, 16-4 111. 250, Default : The burden of proof is upon society to establish an alleged de- fault in the payment of an assessment, and such burden, likewise, extends to showing that such assessment was regularly levied in accordance with its own laws providing therefor. N. W. T. M. Assn. vs. Schauss, 148 111. 304; Supreme Council vs. Haas, 116 App. 587. Deed: — As Mortgage: One asserting a deed absolute on its face to be a mortgage has burden of proving such assertion by clear, sat- isfactory and convincing proof. Eankin vs. Eankin, 216 111. 132; Gannon vs. Moles, 209 111. 180; Heaton vs. Gaines, 198 111. 479; Williams vs. Williams, 180 111. 361; Bartoletti vs. Hoerner, 154 App. 336. — Bill to Set Aside: On bill to set aside deed as cloud on title, burden is upon complainant to prove allegations of his bill, and to show, by competent evidence, the invalidity of the deed attacked thereby. Gage vs. Bissell, 119 111. 298. — Duress: Where a husband conveys land to his wife, pre- sumption is that it was intended as a gift, and burden is upon husband to overcome presumption when seeking to set aside the deed. Huston vs. Smith, 248 111. 396; Lewis vs. McGrath, 191 111. 401. — Insanity anel Undue Influence: Burden of proving is upon complainant. Beatty vs. Hood, 229 111. 562 ; Blanchard vs. Blanchard, 191 111. 450 ; Francis vs. Wilkinson, 147 111. 370. — Delivery on Condition: One claiming that deed in usual form was conditional in effect, has the burden of proving such claim. McComb vs. McComb, 241 111. 453 ; Allen vs. Allen, 157 App. 362. BURDEN OF I'ROOF 229 But if delivered in escrow upon condition ])urden is upon grantee to show what conditions were and peri'orniance. Kavanaugh vs. Kavanaugh, 2G0 111. 17!). — Lost Deeds: Party claiming that lost deeds were executed has burden of proof. Metropolitan Bank vs. Perry, 259 111, 183. Denial of Execution: Under plea of non est factum, verified, burden is on plaintiff to prove execution of instrument. Wolverton vs. Sumner, 53 App. 115. Descent and Distribution: — Existence of Hdrs: The presumption of law is that a per- son dying intestate has left heirs capable of succeeding to his estate, and burden of proof is upon party asserting contrarv. Harvey vs. Thornton, 14 111. 217; Fell vs. Young, ('.3 111. lOG; Chicago vs. Major, 18 111. 349; Pyle vs. MeBratley, 15 111. 314. — Intestacy: It is presumed that each person dies intestate. Sielbeck vs. Grothnian, 248 111. 435; Schmidt vs. Brown, 226 111. 590; Lyon vs. Kain, 36 HI. 362. — Will Established: It is presumed testator intends to dispose of his entire estate. Lewis vs. Sedgewick, 223 HI. 213; Hawkins vs. Boehling, 168 111. 214, If other persons than the heirs claim as devisees, it devolves upon them to establish their rights. Schmidt vs. Brown, 226 Hh 590. Descent of Realty: Burden of proving descent of realty and insufficiency of per- sonalty to pay debts is upon party alleging. Van Vuren vs. Longstreet, 108 App. 159; Laughlin vs. Heer, 89 HI. 119; Gage vs. Gerichs, 85 111. 428, Desertion : Burden of proving desertion, in action for divorce, is upon com- plainant to show that defendant wilfully deserted and absented himself without reasonable cause for the space of two years. Gust af son vs. Gustafson, 66 App, 40, Discount : Defense to effect that defendant is entitled to a discount is affirm- ative and burden to establish same is on defendant. N, W, Fuel Co, vs. Western Fuel Co., 144 App. 92. Divorce : A defendant in a bigamy prosecution who relies upon a divorce as a defense to the chnrge must prove not only that the divorce was obtained, but that it was granted by lawful authoritv. People vs. Spoor, 235 III, 230, Domicile : A domicile, once acquired, is presumed to continue, and one alleg- ing that a change has taken place has the liurden of proof. People vs. Estate of Mohr, 207 HI. ISO; Moffit vs. Hill, 131 111. 239. Dower : To entitle a widow to recover dower in land, the l)urden of proof is upon her to show that her deceased husband, during coverture, was seized of a legal and equitable estate of inheritance in the premises. Cobb vs. Oldfield, 151 111. 540. 230 BURDEN OF PROOF She must show marriag'e and death of her husband. Whiting vs. Nicholl, 46 111. 230. Due Care: The burden of proof to establish, is upon phiintiff. Slack vs. Ky. Co., 245 111. 308; Stollery vs. Cicero St. Ey. Co., 243 111. 290; Collison vs. E. C. K. E. Co., 239 111. 532; West Chi. St. Ey. Co. vs. Liderman, 187 111. 463; I. C. E. E. Co. vs. Cozby, 174 111. 109; C. B. & Q. Ey. Co. vs. Levy, 160 111. 385; I. C. E. E. Co. vs. Nowichi, 148 111. 29; Jones vs. I. C. E. E. Co., 106 App. 597; Wilson vs. I. C. E. E. Co., 109 App. 542. Duress : Where a husband conveys land to his wife, the presumption is that it was intended as a gift, and burden is on husband to over- come the presumption when seeking to set aside the deed on ground of duress. Huston vs. Smith, 248 111. 396; Lewis vs. McGrath, 191 111. 401. Ejectment: Burden of proof is upon plaintiff to establish title in himself. Phelps vs. NazTV'orthy, 226 111. 254; Terhune vs. Porter, 212 111. 595; Boyer vs. Thornberg, 115 111. 540; XII 111. Notes 268, § 99. Embezzlement : Bilrden of proving ownership is upon People, to show with same accuracy as is required in an indictment for larceny. People vs. Brander, 244 111. 26. Eminent Domain: — Right to Condemn : Burden of proof is upon petitioner to clearly establish its right to take and appropriate the lands sought. Eeed vs. O. & M. Ey. Co., 126 111. 48. — Value: Burden is upon petitioner to prove value of prem- 1S6S> C. B. & Q. Ey. Co. vs. Eeisch, 247 111. 350. — Title: Where petitioner alleges title in party in possession, he is not required to establish his title by proof, in order to con- test matter of compensation. The relation of the parties in respect to burden of proof is different in such case than where alleged owner applies for assessment of damages against corporation. P. & P. Q. Ey. Co. vs. Bryant, 57 111. 473. — Leasehold Estate: Burden is upon party claiming. C. & N. W. Ey. Co. vs. Glos, 239 111. 24. — Damages: To property not taken, burden is upon land owner to prove. Stockton vs. City of Chicago, 136 111. 434. Estoppel : The burden of establishing an estoppel is on him who invokes it. Sawyer vs. Nelson, 160 111. 629. Exemption : Where a party claims property as exempt from levy and sale which is not made specifically exempt, the burden of proof rests upon him to show that it is exempted. The law does not presume that a person does not have the property exempted by statute, nor does the mere claim that property is not enumerated prove that it is exempt. McMasters vs. Alsop, 85 111. 157. The burden under the general exemption law is on the garnishee or judgment debtor to show that wages are exempt by proof that BURDEN OF PROOF 231 such judgment debtor does not have property to exceed in value the amount exempted. Kosiba vs. Galinski, 171 App. 643, Experiments : Burden of proof is upon party desiring to show results, to estab- lish conditions are similar when experiment is made with those existing at time fact sought to be ilhistrated occurred. Upthegrove vs. C. G. W. Ey. Co., 154 App. 460 ; C. & E. I. R. R. Co. vs. Crose, 113 App. 547. False Imprisonment: Where an arrest and imprisonment are shown, burden is on defendant to show justification. Mexican Ceut. Ey. Co. vs. Gehr, 66 App. 173. But where plaintiff shows imprisonment was caused by complaint and a trial and examination under it, burden is on him to show that proceedings were invalid or irregular. Hermanson vs. Goodyear, 139 App. 374. Fellow Servant: The burden of proving existence of relation of fellow servant is upon defendant, notwithstanding plaintiff alleges a negative in his declaration. Hartley vs. C. & A. Ey. Co., 197 111. 440 ; C. & A. Ry. Co. vs. House, 172 111. 601; S. V. Coal Co. vs. Buzis, 115 App. 196; Sou. Ey. Co. vs. Stewart, 108 App. 652. Fiduciary Relation: .-^ AVhere such relation is proven, presumption is raised against validity of contract, and casts upon party desiring to uphold it the burden of proving affirmatively that such contract is not against equity and good conscience. Fox vs. Fox, 250 111. 384; Zeigler vs. I. T. S. Bank, 245 111. 180; Beech vs. Wilton, 244 111. 413; Fish vs. Fish, 235 111. 396; Walker vs. Shepard, 210 111. 100. But the rule is not applied where parent makes a will or other provision for his child. Sears vs. Vaughn, 230 111. 572; Bishop vs. Hilliard, 227 ^11. 382; Hurd vs. Eeed, 260 111. 154. Tile rule casting upon recipient of a gift or conveyance from another to whom he stands in a fiduciary relation, the burden of proving the absence of undue influence, when the gift or convey- ance is attacked, does not apply to wills. Micheal vs. Marshall, 201 111. 70; Cf. Weston vs. Teufel, 213 111. 291, Fires: If the fact of the communication of the fire by defendant's engine is proven or admitted, the burden is upon defendant to overcorae» the statutory presumption of negligence arising from that fact, by showing that the engine was properly equipped to arrest sparks and that it was in good order and skillfullv managed. Amer. S. B. Co. vs. C. & A. Ey. Co., 177 111. 513; C. C. C. & St. L. Ey. Co. vs. Stevens, 173 111. 430; C. C. C. & St. L. Ey. Co. vs. Hornsbv, 105 App. 67; St. L. A. & Th. Ry. Oo. vs. Montgomery, 39 111. 336; XIV 111. Notes 291, § 919. Forfeiture : The burden is on him who claims benefit of a forfeiture to clearly establish the right. Harley vs. Sanitarv District, 226 111. 213; Aetnae Ins. Co. vs. Jacob- son, 105 App. 283. 232 BURDEN OF PROOF An obligor in a bond for deed who has granted a temporary indulgence of time to the obligee, has burden of proving that he gave the requisite notice of liis intention to declare a forfeiture. Eaton vs. Schneider, 185 111. 508. Fraud : Must be proven by a preponderance of evidence, and burden is upon party alleging it. Dixon vs.'Albers, 243 111. 231; Ofle vs. Jack, 204 111. 79; Mortimer vs. McMullen, 202 III. 413; McGinnis vs. Storrs, 152 App. 454. Fraudulent Conveyances : (See Conveyances.) Fraud and Deceit : Burden of proof is upon plaintiff to show representation, falsity, scienter, deception and injury. Cantwell vs. Harding, 249 111. 354; Foster vs. Oberreich, 230 111. 525. Gifts: Where title to property is claimed as a gift, burden is upon one claiming the gift. Gilmore vs. Lee, 237 111. 403; Mer. Loan Co. vs. Egan, 222 111. 494; Millar vs. Millar, 221 111. 86; Bamum vs. Reed, 136 111. 388. And where relations of the parties were those of confidence, burden is upon donee to establish that the gift was the free and voluntary act of the donor, made with full knowledge of the facts, kittle vs. Brown, 161 App. 98. Gambling Contracts: Where a defendant, in suit to recover money invested in option deals, claims items of the account sued upon were, in their nature, mere gambling in options or differences, the burden is on him to prove it. Pellonze vs. Shlanghter, 241 111. 215; Marvel vs. Marvel, 96 App. 609; Hall vs. Barrett, 93 App. 642; see also Kerting vs. Sturtevant, 181- App. 517. Garnishment : In garnishment proceeding against maker of a note, the bene- ficial plaintiff has burden of showing that a transfer of the note to a third person was after maturity or not in good faith. Hennessey Bros. vs. St. Mary's Acad., 171 App. 470; Wilhelmi vs. HaffneV, 52 111. 222. — Ansiver: Burden of disproving is on plaintiff. Payne vs. C. E. I. & P. Ry. Co., 170 111. 607; I. C. R. R. Co. vs. Cobb, 48 111. 402; Reid vs. Bank, 135 App. 49; Kosiba vs. Galiuski, 171 App. 643. Guardian and Ward : Burden of proof is upon guardian to establish satisfactorily that the act proceeded from the independent and uninfluenced will of the ward, in action between guardian and ward. Banm vs. Hartman, 226 111. 160; Dowie vs. DriseoU, 203 111. 480; Thomas vs. Whitney, 186 111. 225. Guaranty: Where general issue, verified, is filed, burden is on plaintiff to prove execution of the instrument. B. I. Bridge Co. vs. Froatz, 123 App. 27. Heirship : (See Descent and Distribution.) Highways : — Prescription: Burden of proof is upon one who asserts, to BURDEN OF PROOF 233 show that user was open, notorious, exclusive, continuous and un- interrupted for fifteen years, and was under claim of right with knowledge of the owner and without his consent. Palmer vs. City of Chicajj^o, 1^48 111. 201 ; Rose vs. Citv of Farmine- ton, 196 111. 226; O 'Conncl vs. Chi. Tenii. Co., 184 111. ;iU8. — Abandonment: Burden is on party alleging a])andoninent to prove same by clear and satisfactory evidence. Highway Conirs. vs. Kinahau, 240 111. 593; Cox vs. Coiiirs. of Ilh'h- ways, 194 111. 355. — Dedication: To establish a common law dedication it is es- sential that the proof be clear and unci] ui vocal as to the intention of the proprietor to dedicate to public use. ■ - City of Chicago vs. Wilder, 240 111. 215; Wheatfield vs. Grundenmn, 164 111. 250. — Existence: Burden of proof is upon party alleging. Owens vs. Crossett, 105 111. 354; Mclntyre vs. Stoiy, 80 111. 127; Hudson vs. Miller, 97 App. 74. — Ohstnicting: Burden of proof is upon the prosecution to establish averments by a preponderance of the evidence. Town of Pardridge vs. Snyder, 78 111. 519; Town of Havana vs. Biggs, 58 111. 483. Homestead : — In General: Burden of proving homestead is upon party relying upon it. Gillespie vs. Fulton Gas Co., 236 HI. 188. — Assertion of Lien: AVhere estate is not set off, burden of proving excess value is upon one asserting. Kilmer vs. Garlick, 185 111. 406. — Abandonment: Where there is removal, burden is upon party claiming homestead. Kloss vs. Wylezalek, 207 111. 328; Jackson vs. Sackett, 146 111. 646. Husband and Wife: — Agency of Wife: While the husband and wife live together, she is presumed to have authority to bind him for necessaries suit- able to his estate and station, and the burden is upon the husband to show that such authority did not exist. Bonney vs. Perham, 102 App. 634; Schnuckle vs. Biernan, 89 111. 612. Where they are living apart, permanently, the burden is upon the tradesman to show that the wife was in need of the goods ; that the husband failed to supply her and that the wife was not at fault, or that the husband authorized or assented to the pui'ehase. Bonney vs. Perham, 102 App. 634; Rea vs. Durkee, 25 111. 503; Wil- son vs. Bishop, 10 App. 588. — Agency of Husband: Burden of proof is upon party alleg- ing. Wallace vs. Monroe, 22 App. 602. But when husband has possession of obligations payable to the wife, the burden of proving that he had no authority to receive same rests upon party alleging it. Yazel vs. Palmer, 81 111. 82. Identity : — Property Sold by Description: The onus as to identity of property sold by description, being the subject matter of the per- 234 BURDEN OF PROOF formance of the contract, is upon the vendor in action for the price, Morris vs. Wibaux, 159 111. 627; Wolf vs. Dietszch, 75 111. 205; Shields vs. Kiebe, 9 App. 598. — Stock of Goods: In distress for rent, burden is upon land- lord to establish. Powell vs. Daily, 163 111. 646. — Larceny: Burden is upon State to estalilish identity of sub- ject matter of larceny beyond reasonable doubt. Bishop vs. People, 194 111. 365. — Persons: Where deed is to one of two persons of the same name, and being father and son, burden of proof lies upon one asserting grant to son. Graves vs. Colwell, 90 111. 612. Same name as prior grantee, burden of proof lies upon one as- serting different persons. Brown vs. Metz, 33 111. 339. Infancy : — Civil Action: Where a party files a plea of infancy, he as- sumes the burden of proving his plea by a preponderance of the evidence. Goodwin vs. Acton, 97 App. 11; Peak vs. Prieer, 21 111. 164. — Criminal: If defendant asserts infancy as a defense, he is required to prove it. Sutton vs. People, 145 111. 279; Mark vs. People, 204 111. 248. Inn-Keeper : The relation of guest and inn-keeper and the loss being shown, the burden of proof is then cast upon inn-keeper to exonerate himself. Eockhill vs. Congress Hotel Co., 237 111. 98; Metcalf vs. Hess, 14 111. 129; Eden vs. Drey, 75 App. 102; Johnson vs. Richardson, 17 lU. 303. Insanity : — Civil Action : The presumption of law before inquest found is in favor of sanity, and one alleging insanity has the burden of proof. Kelly vs. Nusbaum, 244 111. 158; Isle vs. Cranby, 199 111. 39; Blanchard vs. Blanchard, 191 111. 450; Egbers vs. Egbers, 177 111. 82. But if a party not insane seeks to avoid a release given while mental faculties were temporarily impaired, the burden of proof is upon such party to show the mental incapacity and not upon the other party to show mind was not impaired. C. b. W. Ey. Co. vs. Mills, 91 111. 39. — Cnminal Action: The legal presumption that all men are sane makes it unnecessary for the People to prove in the first in- stance the sanity of the accused ; but if he prove facts or cir- cumstances tending to prove his insanity, the burden of proof then develops upon prosecution to prove the sanity of the accused beyond a reasonable doubt. People vs. Casey, 231 111. 261. — Lucid Interval: Where a party is insane except at inter- vals when insanity is alleged as a defense to a contract made by BURDEN OF PROOF 235 him, he who claims the performance of the contract, must prove it was entered into while tli(> party had a lucid interval. Emery vs. Hoyt, 46 ill. 258. — Restoration: Burden of proof is upon party alleging. Menkins vs. Lightner, 18 111. 282 ; 8everns vs. Brofl'ery, 155 App. 10. — Will Proponents: If the evidence in a will contest shows that the testatrix was afflicted with insanity of a permanent nature before the execution of the will, the burden is upon proponents to show that tlie will was executed during a lucid interval. White Mem. Home vs. Haeg, 20-1 111. 422. Insolvency : It is not presumed that a person is insolvent. Such fact must be proven. Bittinger vs. Kasten, 111 111. 260; Eogers vs, Dimon, 106 App. 201; Tumison vs. Chambliu, 88 111. 378. Insurance : — Benefit Society: In action upon benefit certificate, burden of proof is upon transferee company to show deceased was not in good standing. Brown vs. Mutual Life Assn., 224 111. 576; Bolles vs. Mutual Life Assn., 220 111. 400. The burden of showing that before his death the insured had lost his good standing as a beneficial "member, is upon the society. United Brotherhood vs. Fortin, 107 App. 306. Or that beneficiary is not one who can take under restrictive bylaws of society. Eezzo vs. Foresters, 176 App. 165. — Deduction: Where deduction upon a contract in suit is a mere matter of computation, and the proof is equally as well in possession of each party, the burden of proof is upon complainant. Berner vs. Brotherhood of Yeomen, 154 App. 27. — Death: Burden of proof is upon beneficiary to establish such facts from which the law will presume death. Kennedy vs. Modern Woodmen, 243 111. 560. — Assessment: The burden of proof is upon society to establish an alleged default in the payment of an assessment and such burden likewise extends to the showing that such assessment was regularly levied in accordance with its own laws provided therefor. N. W. T. M. Assn. vs. Schauss, 148 111. 304; Supreme Tent vs. Haas, 116 App. 587; Chi. G. F. Soc. vs. Wilson, 91 App. 667. — Notice : When the contract between a benefit society _and_ its members provides that assessments shall be due a certain time after a particular notice has been given, the society, before it can claim that a member has been suspended for failure to pay such assessment must show affirmatively that it has given notice of that assessment which the contract requires. Farmers Federation vs. Croney, 106 App. 423. — Amendment : Burden is upon society to show that constitu- tion has been amended in accordance with its provisions before the amendment offered becomes competent evidence. U. B. of C. & J. vs. Fortin, 107 App. 306; M. S. F. A. vs. Windover, 137 111. 417. — Violation of Law: If the defense is predicated upon a pro- vision in the certificate to the effect that if the death of a member ''shall occur in consequence of any violation or attempted viola- 236 BURDEN OF PROOF tion of the law of any state, territory, province or country," the same must be established by a preponderance of the evidence, and each and every element which constituted the crime charged must likewise be established by a preponderance of the evidence. Brown vs. Mystic VVorkeis, 151 Api>. 517. — Forfeiture : Where a party claims a right based on a for- feiture, it is incumbent upon such party to show that a forfeiture has taken place. Supreme Council vs. O'Neill, 108 App. 47. — Accident Company: In action upon an accident policy, burden to establish cause of death by accident is upon plaintiff. Cent. Ace. Ins. Co. vs. Spcnce, 126 App. 32. In action upon an accident policy, where it is admitted the in- sured died as a result of injuries effected by violent and external means, plaintiff has burden of proving that the injuries were acci- dental and not self-inflicted; but such fact may be established by circumstantial evidence in connection with the rebuttable pre- sumption that the injuries were not self-inflicted. Wilkinson vs. Aetnae Ins. Co., 240 111. 205. — Fire Insurance: Burden of proof is upon company to show forfeiture. Aetnae Ins. Co. vs. Jaeobson, 105 App. 283. Burden of proving cancellation is upon defendant company. Natl. Fire Ins. Co. vs. Lumber Co., 119 App. 67. — Premium: AVhen once policies are issued and delivered at an estimated and agreed premium, the burden of establishing a right to additional compensation is upon the company. New Amsterdam Co. vs. Saloman, 165 App. 264. — Identity of rroperty: It is incumbent upon the plaintiff to show that defendant company had insured the property destroyed at the particular place where its destruction took place. Krol vs. Royal Ins. Co., 162 App. 202. Intestacy : Is presumed, and burden of proof is upon party alleging de- ceased was testate. Schmidt vs. Brown, 226 111. 590; Lyon vs. Kain, 36 111. 362. Interest : — Usury : Burden of proving a note or contract to be usurious under the law of a sister state is upon party alleging it. Walker vs. Lovitt, 250 111. 543 ; Dearlove' vs. Edwards, 166 111. 619 ; Eeid vs. Northern Lbr. Co., 146 App. 371. — Payment to Extend Note: Burden of proof to show that pay- ment of interest in advance operated to extend time of payment so as to release surety or lien of trust deed, is upon party pleading release. Prussing vs. Lancaster, 234 111. 462. Joint Liability: — Partnership: Where put in issue by plea verified by affi- davit, burden of proof is upon plaintiff to establish partnership by a preponderance of the evidence. Walker vs. Wood, 170 111. 463; Smith vs. Knight, 71 111. 148; Lasman vs. Hart, 112 App. 82; Merchant vs. Manion, 97 App. 43; Dowie vs. Tyler, 64 App. 110. But in suit against members of an alleged partnership, defended BURDEN OF PROOF 237 by certain members on groniul tlmt tboy bad retired from tbe firm, tlie burden of proof, tiie plaintiff liavin^ sliown the existence of the partnership, is on such defendants to show that plaintiff had notice of the dissolution, before they can escape liability. Arnold vs. Hart, 75 App. 165. — On Note: The effect of an at^davit or verified plea denying the joint liability of a defendant on a promissory note, places burden of proving such joint liability on plaintiff. McEae vs. Heudosehcll, 88 App. 428; Edwards vs. Cleveland Dryer Co., 83 App. 643 ; Clark vs. Hoffman, 128 App. 422. Judgment : Burden of proof is upon party seeking to impea(ih. Stout vs. Oliver, 40 111. 245; Whittaker vs. Wbittaker, 151 HI, 266. Jurisdiction : The burden of proving the facts tending to impeach the juris- diction of a court of general jurisdiction of a sister state is upon party denying the jurisdiction. Cigler vs. Keinath, 167 App. 65. Justification : Burden of proof is always upon party holding affirmative in presenting an issue ; so in trespass, plaintiff' has the burden of proof upon the issues presented by his declaration ; and where defendant pleads a justification, he tenders a new and different issue, and assumes burden of proving it. Hudson vs. Miller, 97 App. 74; Lindblom vs. Eamsey, 75 HI. 246. Knowledge : — Contents of Writing: Where the signature to a written in- strument is proven to be genuine, the instrument affords prima facie evidence that its contents were known to the subscriber, and that it was his act and the burden of overcoming such prima facie showing is upon those who assert the contrary. Jones vs. Abbott, 235 111. 220. — Of Defect: A servant, in order to recover for an injury, for defect in the appliances in the business, is called upon to establish three propositions : first, that the appliance was defective ; second, that the master had notice thereof or knowledge, or ought to have had; third, that the servant did not know of the defect, and had not equal means of knowledge with the master. Eoss vs. C. E. I. & p. Ey. Co., 243 111. 440; Swift vs. Gaylord, 229 111. 330 ; Jones vs. George, 227 111. 64 ; C. & E. I. E. E. Co. vs. Heery, 203 111. 492; Goldie vs. Werner, 151 111. 551; Althardt vs. Con. Coal Co., 155 App. 364. Knowledge or want of knowledge of a defect may be inferred from the circumstances, but by whatever evidence the fact must be shown, the burden of proof in that regard rests upon plaintiff'. Swift & Co. vs. Gavlord, 229 111. 330; Wilson vs. Monmouth Pottery Co., 150 App. 477. (Note: C. & E. I. R. R. Co. vs. Hines, 132 111. 162; City of LaSalle vs. Kostka, 190 111. 130, explained in 229 111. 330, and cases cited. See also, Wilson vs. Monmouth Pottery Co., 150 App. 477.) — Of Danger: Burden of proof is not upon plaintiff to show that servant employed in a different work, did not have notice of the danger. Chi. Terminal Co. vs. O'Donnell, 114 App. 345. Affd., 213 111. 545. 238 BURDEN OF PROOF But where servant has equal means of knowledge with master of defect, burden is upon him to show that he did not know the danger. Dougherty vs. 111. Steel Co., 164 App. 551. — Principal and Surety: Burden of proving surety had knowl- edge of creditor's acts, sufficient to release surety, is upon cred- itor. English vs. Landon, 181 111. 614. Larceny : Burden is upon State to establish identity of subject of lar- ceny beyond a reasonable doubt. 'Bishop vs. People, 194 111. 365. Lease : Burden is upon party asserting execution and delivery to estab- lish same. Eogan vs. Arnold, 233 111. 19; Skarowska vs. Bartholomae Co., 152 App. 48. Burden is upon party alleging verbal lease to prove terms. East vs. Crow, 70 'ill. 91. Legislative Acts and Journals: Burden of proving illegality is upon party alleging. Erf ord vs. City of Peoria, 229 111. 546 ; I. C. R. R. Co. vs. Wren, 43 111. 77. Legitimacy : The burden of proof is upon party alleging illegitimacy. Zachmann vs. Zachmaiin, 201 111. 380; Metheny vs. Bohu, IGO 111. 263; Orthwein vs. Thomas, 127 111. 554. Libel and Slander : — Criminal Rcsponsihility: Burden of proving truth, is upon defendant. People vs. Strauch; 247 111. 220; People vs. Fuller, 238 111. 116. — Civil Action: Burden of proof in general is upon plaintiff. Schofield vs. Baldvs'in, 102 App. 560. The burden is upon defendant to show that occasion of his speaking the alleged slanderous words was privileged. Earth vs. Hanna, 158 App. 20 ; Everett vs. DeLong, 144 App. 496. License : When a license has been issued to a person, it is peculiarly within his knowledge and the burden is upon him co show such license. Shendorf vs. Gorman, 86 App. 276. Life Tables: Courts take judicial notice of standard tables. (Wigglesworth, Northampton and Carlisle.) Marshall vs. Marshall, 252 111. 568; Wain vs. C. C. C. & St. L. Ey. Co., 239 111. 132; Henderson vs. Harness, 184 111. 520. Limitations : The statute of limitations is an affirmative defense, and bur- den of proving it is upon party pleading it. Schell vs. Weaver, 225 HI. 159; Bartelott vs. International Bank, 119 111. 259; Chi. Chronicle Co. vs. Franklin, 119 App. 384; Moflfett vs. Farwell, 123 App. 528; XIII 111. Notes, 343, § 115. But party relying upon a disability to avoid operation of statute must prove it. Fritz vs. Joiner, 54 111. 101; Wachter vs. Albie, 80 111. 47. BURDEN OF TROOF 239 Malicious Prosecution: — Want of Vrohable Cause: The burden of proof is upon plain- tiff to show clearly the want of pro))al)le cause. McElroy vs. Catholic Press Co., 254 ]11. 290; Davie vs. Wisher, 72 III. 262; Palmer vs. Eichardsoii, 70 111. 544; Youug vs. Lindstroni, 115 App. 239; Skala vs. Euss, 60 App. 479. — Malice : Onus is upon plaintiff to show that the criminal prosecution was the offspring- of malice, without any probable cause to justify it. Barrett vs. Spaid, 70 111. 408; Ross vs. Innes, 35 111. 487. Malpractice : Burden is upon plaintiff to show injury complained of was not caused by his own act. Melhvain vs. Gaebe, 128 App. 209; Holtzman vs. Hay, 118 111. 534;^ Phebus vs. Mather, 181 App, 274. Mandamus : If a corporation has reason to believe that the motives actuating an inspection of corporate records are illegal, and refuses inspec- tion, on that ground, it assumes the burden of proving such im- proper or illegitimate purpose. Pease vs. Chi. Crayon Co., 167 App. 31; Stone vs. Kellogg, 165 111. 192. Manslaughter : After it is shown that accused participated in killing of de- ceased, burden is upon him to prove circumstances mitigating or justifying or excusing his acts. People vs. Hubert, 251 111. 514; Murphy vs. People, 37 111. 447. Marriag-e : One attacking a ceremonial marriage has burden of proving illegality. Winter vs. Dibble, 251 111. 200 ; Potter vs. Clapp, 203 111. 592 ; John- son vs. Johnson, 114 111. 611; Eeifsehneider, vs. Eeifschneider, 241 111. 92. Where evidence establishes a contract of marriage per verhi dc presenti, one contending that such contract falls within the re- strictions imposed by the state where the marriage took place, has the burden of proof upon that point. Sokel vs. People, 212 111. 238; Laurence vs. Laurence, 164 111. 367. The presumption of a valid marriage arising from proof of cer- emony is destroyed and burden shifts to person asserting it, where it appears that the wife of alleged husband, by a former marriage, is living, has been true to her vows, and that such first marriage was not dissolved in the jurisdiction where she lived. Cole vs. Cole, 153 111. 585; Potter vs. Clapp, 203 HI. 592. Cf. Sehmisseur vs. Beatrie, 147 111. 210. Master and Servant : — Negligence: Burden is upon plaintiff to prove one causing injury was not a fellow servant. Wolf vs. Deahl, 152 App. 357. — Promise to Repair: Servant has burden of proving that mas- ter's promise to repair induced him to remain at work. Morden Frog Works vs. Fries, 228 111. 246. Medical and Surgical Services: — Action for hy Physician: Plaintiff must establish the con- tract of employment and rendering of services. =■ '"' _J Dorion vs. Jacobson, 113 App. 563 ; Thomas vs. Leavy, 62 App. 34. s 240 BURDEN OF PROOF — Contract of Corporation: Burden of proof is upon party pleading ultra vires. Gibson vs. O 'Gara Coal Co., 151 App. 424. — Recovery as Damages: In order to recover, burden of proof is upon plaintitf to prove two things, first, that he has paid or become liable to pay a specific amount ; and second, that the charges were the usual and reasonable charges for services of that nature. Ammon vs. Chi. Traction Co., 243 111. 263; Schmidt vs. Kurrus, 234 111. 578; N. Chi. St. Ey. Co. vs. Cotton, 140 111. 486. Mental State: Where the condition of mind is a material fact, like any other fact, the burden of proof is upon party in whose interest it is to show it. Eoyal Circle vs. Achterrath, 106 App. 439; Johnson vs. Watson, 169 App. 218. Money Paid: In order to maintain an action for money paid for the use of another, it must appear that it was paid at such other's request, express or implied, or that after such payment there was an ex- press promise to pay it back. City of Chicago vs. C. & N, W. Ey. Co., 186 111. 300 ; North vs. North, 63 App. 129. Money Had and Received: Plaintiff assumes the burden of establishing facts from which the law will draw the conclusion that the defendant had received money which, in justice, ought to belong to plaintiff and ought to be returned. Glass Co. vs. Telegraph Co., 234 111. 535. In action to recover money alleged to have been paid defendants on a promise to return it if, upon accounting, it should be found that the plaintiff was not indebted to them, the burden of proof is upon plaintiff to show that he was not indebted. Smith vs. Grant, 30 App. 150, Negative in Issue: Where the means of proving a fact are equally within the con- trol of either party, the burden of proof is upon the party averring the negative, but where the opposite party is in possession of full and plenary proof to disprove the negative averment, and such proof is not in control of the other party, the law will presume that the fact does not exist unless tlie evidence to establish it is adduced. G. W. E. Co. vs. Bacon, 30 111. 347. Evidence rendering negative probable sufficient to shift bur- den. Beardstown vs. Virginia, 76 111. 34. Negligence : AVhere an injury is shown and that it arose from something within the control of the carrier or from some danger which it was his duty to anticipate and provide against, a presumption of negligence on the part of the carrier or his servants arises. The presumption does not arise from the injury itself, but from the injury and the source or cause of it, but when the injuiy is proven, and the cause connected with the carrier, a prima facie BURDEN OF PROOF 241 case is made out for the plaintiff. The carrier is then called upon to meet and overcome the i)nnia facie case, and this is often spoken of as the burtlen of proof, whicli, in the sense of necessity of producing evidence to meet a prima facie case, passes from party to party as the case progresses, but the burden of establisli- ing the truth of the issue by a preponderance of the evidence rests and remains with the party having the aifirmative. Vischer vs. N. W. El. Ey. Co., 256 111. 572. Burden of proof as to negligence is upon plaintiff. Chi. U. Trac. Co. vs. Mee, 218 111. 9; C. & E. I. Ey. Co. vs. Driseoll 176 111. 330; Sack vs. Dolese, 137 111. 129; C. & E. I. E E. Co vs' Geary, 110 111. 383; EanJall vs. S. D. & E. Co., l.')8 App '56 • Stafford vs. C. B. & Q. E. E. Co., 114 111. 244; XIll 111. Nolos Do:/, § 140. In actions for negligence, the burden is upon plaintifl' to allege and prove such negligent acts of defendant as will entitle him to recover. Joliet Steel Co. vs. Shields, 134 111. 209; Blanehurd vs. L. S. & M. S. Ey. Co., 126 III. 416; Tul>elo\\ ish \8. Lathrop, 104 App. 82; West Wheel Works vs. Staeliuick, 102 App. 420; Tybula vs. Plainoiulon Mfg. Co., 153 App. 299; Eandall vs. S. D. E. Ey. Co., 158 App. 56. Where passenger, without fault, is injured by collision, over- turning of vehicle, defective roadway or appliance; omission or mistake of servants, burden is upon carrier to rebut presumption of liability. Barnes vs. Danville St. Ey. Co., 235 111. 566; Elgin Trac. Co.' vs. Wilson, 217 111. 47; McFadden vs. C. E. I. & P. Ey. Co., 149 App. 298. ' Negotiable Instruments : Burden is on one alleging assignee is not a bona fide holder to prove same. Peterson vs. Emery, 154 App. 294. Burden is on assignee to show he took instrument in good faith when maker shows title of payee to be defective. Schintz vs. Bank, 152 App. 76. Notaries Public: The official seal and jurat of a foreign notary public are not prima facie evidence of his authority to administer oaths, if the jurat contains no recital of such authority. DesNoyers Shoe Co. vs. First Natl. Bank, 188 111. 312; Trevor vs. Colgate, 181 111. 129. Proof of authority to take acknowledgments is not required. Eamsey vs. People, 197 111. 594; Harding vs. Curtis, 45 111. 252. Notice of Injury: Burden is upon plaintiff to show notice to city. Oiiimette vs. City of Chicago, 242 111. 501 ; Sclioeler vs. City of Eock- ford, 160 App. 217. But does not apply to action for wrongful death. Prouty vs. City of Chicago, 250 111. 222. Eev. Prouty vs. City of Chicago, 159 App. 82. Novation : The burden of establishing a novation is upon the party who asserts same. Novation is not easily presumed. It must clearly appear before the court will recognize it. Netterstrom vs. Gallistel, 110 App. 352. EV.— 16 242 BURDEN OF PROOF Officers : — Existence of Office: In quo warranto, burden of proof is upon relator to show legal existence of office. People vs. Freeman, 242 111. 152; Hediick vs. People, 221 111. 374. — Duty: Where the legality of the acts of a public officer are questioned collaterally, burden of proof is upon one charging non-performance of duty. City of Peoria vs. Cent. Natl. Bank, 224 111. 43; Hogue vs. Corbet, 156 111. 540; School Directors vs. Parks, 85 111. 338. — False Return: Sheriff refusing to make levy has burden of proving property not subject to levy, where property is in pos- session of debtor. Second National Bank vs. Gilbert, 174 111. 485; People vs. Palmer, 46 111. 398; Bonnell vs. Bowman, 53 111. 460. Ordinances : — Existence of: Burden of proof is upon party asserting. People vs. Busse, 248 111. 11; People vs. Heidleberg, 233 111. 290; Stott vs. City of Chicago, 205 111. 284. — Continuance in Force: Ordinance shown to have been in force, burden of proof is upon one asserting repeal. St. L. A. & T. H. Ky. Co. vs. Elggman, 161 111. 155. — Unreasonableness : Ordinance is presumptively valid and burden is upon those who assert the contrary. Springfield vs. Postal Tel. Co., 253 111. 346; People vs. Grand Trunk Ky.^Co., 232 111. 292; C. & A. Ry. Co. vs. City of Carlinville, 200 111. 314; Marshall vs. People, 219 111. 99; Village vs. McWherter, 152 App. 114; XIII 111. Notes 751, §93. Ownership : — Personal Property: Possession is "prima facie evidence of ownership. P. Ft. W. & C. Ry. Co. vs. Callaghan, 157 111. 406 ; Peters vs. Smith, 42 111. 417; Bergan vs. Riggs, 34 111. 170; P. C. C. & St. L. Ry. Co. vs. Chicago, 144 App. 293. — Streets and Alleys: Burden of proof is upon city to show that land, long in possession of abutting owners, is part of streets. Mt. Carmel vs. McClintock, 155 111. 608. — Notes: In action upon note by administrator, burden is upon him to show note is property of estate. Wight vs. Worden, 162 App. 182. — Insurance: In action upon insurance policy requiring the insured to be the owner of goods insured, it is incumbent upon the company to establish its defense that the insured was not the owner of goods insured. Milhelm vs. Hawkeye Ins. Co., 171 App. 262. Parent and Child: See Parent and Child. Partnership : — Existence: Burden of proof is upon party alleging it. Ferber vs. Page, 143 111. 622; Smith vs. Knight, 71 111. 148; Martin vs. Trainor, 125 App. 474; Bensley vs. Brockway, 27 App. 410. — Secret: Where, to all outward appearances, and in their relations to third persons, there has been a dissolution of the part- nership, and a transfer of the firm property to one partner, one asserting the continuance of a secret partnership has the burden of proof. Wright vs. Cudahy, 168 111. 86. BURDEN OF PROOF 243 Payment : Payment is an affirmative defense, and burden of proving it is on party pleading. Turner vs. Turner, 164 App. 1; Eoss vs. Skinner, 107 App. 579; Howard vs. Bennett, 72 111. 297. Burden of proof to show payment in full or upon account is upon defendant. Evans vs. Ross Construe. Co., 142 App. 375; Duffy vs. Leavitt, 81 App. 410. Burden of proving payment was authorized hy person for whom same was made is on party so alleging. Master vs. Bank, 163 App. 645. Penalties: Burden of proof in actions for penalties is upon plaintiff, and more than preponderance of evidence is necessary to authorize a recovery. A. T. & S. F. Ry, Co. vs. People, 227 111. 270; Gunkel vs. Bacbs, 103 App. 494. But when the act is proven, the burden is on the party alleg- ing license or leave. Prentice vs. Crane, 234 111. 302 ; Harbau^^h, vs. City of Monmouth, 74 111. 367; Chandler vs. Smith, 70 App. 658. Physician and Surgeons: In action for malpractice, burden of showing want of profess- ional skill is on plaintiff. Holtzman vs. Hay, 118 111. 534; Phebus vs. Mather, 181 App. 274. In actions for compensation, burden of showing fact of employ- ment and rendition of services is upon plaintiff. Doran vs. Jacobson, 113 App. 563. Plat: Presumption is that record is correct, and burden of proof is upon objector to show that public officer who copied it did so incorrectly. City of Peoria vs. Cent. Natl. Bank, 224 HI. 43. Pleading : Where an answer to a bill in chancery sets up new matter, not responsive to the bill, the onus is upon defendant to prove the allegations as charged. Cooper vs. Tyler, 46 111. 463. Possession : — Bill to Remove Clond: Burden of proving possession at tune bill was tiled is upon complainant. Glos vs. Archer, 214 111. 74. — Burglary and Larceny: Burden is not upon accused to sat- isfactorily explain recent possession. Miller vs. People, 229 111. 376; Watts vs. People, 204 111. 233. — Forcible Entry and Detainer: One who is in the_ actual and peaceable possession of lands will be presumed to be rightfully in possession, and burden of proof is upon him who disputes that possessory right. _ FitzGerald vs. Quinn, 165 111. 354; Gosselin vs. Smith, 154 111. /4; Hammond vs. Doty, 184 111. 246. Principal and Agent: Burden is on agent purchasing property of same class as that 244 BURDEN OF PROOF which he is purchasing for his principal to show same was done with principal's knowledge and consent. Fox vs. Simnious, 251 111. ol6. Principal and Surety : Burden is upon surety to show discharge of liability. Lancaster vs. Priissing, 139 App. 33; Trussdale vs. Hunter, 28 App. 292. Burden of proof is upon surety to show mental incapacity of surety. A preponderance of the evidence is sufficient. Gaar Scott Co. vs. Hulse, 90 App. 548. Promise to Repair: Servant seeking to recover for an injury received by continu- ing work with a defective machine, after he had complained of the defect and received the master's promise to repair, has the burden of proving that he was induced to remain at work by the promise to repair. Mordcn Frog Works vs. Fries, 228 111. 246. Quo Warranto: A defendant justifying to an information in quo tvarranto whether an individual or a corporation, has the entire burden of showing by what authority the powers complained of are exercised, and the People are entitled to a judgment of ouster if a prima facie case is not made out. People vs. O 'Conner, 239 111. 272 ; McGahan vs. People, 191 111. 493 ; People vs. City of Peoria, 166 111. 517; People vs. Eidgley, 21 111. 67; People vs. Burns, 212 111. 227; XIV 111. Notes ISO, § 54. Burden is upon defendant to show petition for enlargement of drainage district. People vs. Cooper, 139 111. 461. Receipt : Burden of explaining or impeaching is upon party who gave it. Ennis vs. Pullman Car Co., 165 111. 161; Long vs. Long, 132 App. 409; FitzGerald vs. Coleman, 114 App. 25; McElhaney vs. People, 1 App. 550. Receiving Stolen Property: — Larceny: It is absolutely essential to a conviction for hav- ing received stolen property for gain, knowing it to have been stolen, that the prosecution should prove beyond a reasonable doubt that a larcenv had been committed. Williams vs. People, 101 111. 382. — Guilty Knowledge: Burden of proving is upon the People. Cohn vs. People, 197 111. 482; Huggins vs. People, 135 111. 243. — Identitij of Propciiy: Burden is upon People. Schuitz vs. People, 210 111. 196. Rescission: Burden of proving facts justifying rescission, or that contract has been rescinded is upon party seeking to establish these facts. Schroeder vs. Walsh, 120 111. 403; Hall vs. Jarvis, 65 111. 302. One seeking to evade the enforcement of a written contract on the ground that the same was rescinded and an oral contract sub- stituted, has burden of proving the making of alleged verbal agreement. Croft vs. Perkins, 174 HI. 627. BURDEN OF PROOF 245 Recog'nizance : On plea of death of principal in a recognizance, burden rests upon defendant. People vs. Meachaiii, 74 111. 292. Recoupment : Althoui>h recoupment considered as a right, enables a delin- quent defendant conceding to the plaintitf a right of action to prevent a recovery or reduce its amount, it is not upon any merit of his own, but for a fault of the plaintiff in connection with the same transaction on which he sues. The burden of proving such fault rests upon him and it is the same that it would be if he were plaintiff suing for the damages caused by it; and if that fault consists in the breach of another agreement, independently of the one in which the plaintiff sues but contained in the same instrument, and relating to the same subject matter, he must show in like manner that he is not, himself, in default on that agree- ment. Harber Bros. vs. Moflfat Cycle Co., 151 111. 84; Pnrcell vs. Sage, 200 111. 342; N. S. Lumber Co. vs. S. S. Lbr. Co., 176 App. 96. Reformation of Instruments : Burden of proof is upon party alleging mistake to prove same by clear, convincing and satisfactory evidence. Lines vs. Wiley, 253 111. 440; Stanley vs. Marshall, 206 111. 20; Eexroat vs. Vaughn, 181 111. 167; Schwarze vs. Herchey, 125 111. 653 ; XIV 111. Notes 326, § 46. Refusal to Produce Evidence: Tlie presumption of law arising from the non-production or destruction of evidence by one party cannot relieve the other party from the burden of proving his ease. Gage vs. Parmalee, 87 111. 329; Cough vs. Kyne, 40 App. 234. Release : The burden of proving a release is upon party alleging it. Wallner vs. Chi. Con. Trac. Co., 150 App. 242 ; Davis vs. Weatherly, 119 App. 238; McDavitt vs. McMay, 78 App. 396; Messmore vs. Larson, 86 111. 268. Burden of proof is upon plaintiff' to establish allegations of fraud and covin interposed by way of reply to defendant's plea setting up release. C. & A. Ry. Co. vs. Jennings, 114 App. 622; Miller vs. St. L. S. & P. Co., 176 App. 439. Replevin : Where defendant pleads property in himself, burden of proof is upon plaintiff to show that the property rej^levied and delivered to him under the wi'it was his own property. Second Natl. Bank vs. Thuet, 124 App. 501 ; Jones vs. Glathart, 100 App. 630. If the replication to a plea charging that the plaintiff sold prop- erty without defendant 's consent, in violation of mortgage, consists merely of a denial of the allegations of the plea, the burden is on defendant to prove plea. Mathews vs. Granger, 196 111. 164. Burden of proof is upon defendant who pleads that lie took the property as an officer under execution. Shue vs. Ingle, 87 App. 522. 246 BURDEN OF PROOF Replevin Bond: In action upon a replevin bond, the burden of proof rests upon defendant (plaintiff in replevin suit), to establish his title to the property in question. Fabian vs. Traeger, 117 App. 176. Affd., 215 111. 220. Replication : Burden on plaintiff to prove new facts set up in replication, if an independent fact. Can tr ell vs. Faweett, 2 App. 569. But where replication is a mere denial, defendant must estab- lish plea. Mathews vs. Granger, 196 111. 164. Residence : A student is not presumed to have right to vote, and if he attempts to do so, burden is upon him to prove his residence. Welsh vs. Shumway, 232 111. 54. Resisting Arrest: Resistance being first shown, burden is upon accused to show that resistance was not for purpose of avoiding arrest and prose- cution on thq charge upon which he is being tried. McKeavitt vs. People, 208 111. 460. Resulting Trust: Burden of proof is upon party asserting. Metropolitan Bank vs. Perry, 259 111. 183; Lord vs. Eeed, 254 111. 350; Deuter vs. Center, 214 111. 308; Hogue vs. Steele, 207 111. 340; Lewis vs. McGrath, 191 111. 401. Burden is upon dominant party to show transaction is not against equity and good conscience, where fiduciary relations exist. Beaeh vs. Wilton, 244 111. 413; Thonias vs. Whitney, 186 111. 225. Reward : To entitle a person to a reward, he must show a rendition of the services required, after knowledge of and with a view to obtaining the reward. C. & A. R. E. Co. vs. Sebring, 16 App. 181. Sales : — Identity: The onus as to identity of property sold by de- scription, being the subject matter of the performance of the contract, is upon the vendor in action for the price. Morris vs. Wibaux, 159 111. 627; Wolf vs. Dietzsch, 75 111. 205; Schields vs. Riebe, 9 App. 598. — Compliance ivith Order: Burden is on vendor to show, where order calls for articles of a certain kind and particular brand. Lohiv vs. Fleischman, 165 App. 312. Where there is evidence tending to show the sale and delivery of merchandise and its acceptance by the vendee, the burden of showing that such merchandise w^as not such as was called for by the contract rests upon such vendee. Waukesha Canning Co. vs. Horner Co., 138 Apj). 564. — Under Trust Deed: On bill to impeach sale of land under power in a deed of trust, the burden of showing the invalidity of the sale is upon complainant. Bowman vs. Ash, 143 111. 649. BURDEN OF PROOF 247 School Teacher: — Eight to Teach: Burden is upon plaintiff to show, in action for services. Stevenson vs. School Directors, 87 111. 255; Stanhope vs. School Directors, 42 Ai)p. 570; School Directors vs. Jennings, 10 App. 643. — Incompetency: If a school teacher is discharged before ex- piration of contract on ground of incompetency, burden is upon directors to show same. Darter vs. Board of Education, 161 App. 284; School Directors vs. Reddick, 77 111. 628; School vs. Stericher, 86 111. 595. Seduction : Burden is upon plaintiff to show relation of master and servant. Garretsou vs. Becher, 52 App. 255. Servant : The l)urden of showing good and sufficient grounds for dis- charge rests upon the employer invoking such defense, when the servant has proven the contract, its performance, up to the time of his discharge and his readiness to perform at the time of dis- charge Ludwich vs. Eock Eng. Co., 148 App. 632; Campbell vs. Tierlein, 134 App. 207; Morris vs. Taliferro, 44 App. 359. Set-Off: Burden of proving is upon defendant. McArthur vs. Whitney, 202 111. 527; Osgood vs. Groseclose, 159 111. 511; Ellis vs. Cochran, 117 111. 458; Holmes vs. McKennan, 120 App. 320; Messmore vs. Larson, 86 111. 268. A plea of set-off, counter-claim or recoupment does not relieve plaintiff' of his burden in the first instance of making out a prima facie case. Robinson vs. Parrish, 62 111. 130. Settlement : In a suit in chancery, for an accounting by defendant, as agent and trustee of complainant, where defense set up was that there had been a full settlement between the parties, the burden of proving fact of settlement is upon defendant. Pratt vs. Grimes, 48 111. 376. Signature : Signature is prima facie evidence of knowledge of contents of instrument and burden is upon those who assert the contrary. Jones vs. Abbott, 235 111. 220; Todd vs. Todd, 221 111. 410; Com- phcr vs. Browning, 219 111. 429. Specific Performance: Party seeking specific performance is required to show that he has been in no default in not having performed the agreement and that he has taken all proper steps toward performance on his part, or can show a reasonable and just excuse for non-perform- ance Bothwell vs. Schmidt, 248 111. 586; Fortham vs. Deters, 206 111. 159; Tryce vs. Dittus, 199 111. 189. Suicide : — Benefit Society: Has burden of showing that deceased com- mitted suicide, where such defense is relied upon. Knights Templar vs. Crayt-on, 209 111. 550; Supreme Tent vs. Stens- land, 206 111. 124; Rumbold vs. Eoyal League, 206 111. 513; Wil- kinson vs. Aetna Ins. Co., 144 App. 38. 248 BURDEN OF PROOF — Accident Company: Burden is upon plaintiff to show assured met accidental death. Wilkinson vs. Aetna Ins. Co., 240 111. 205. Survivorship : AYhen two or more persons perish in a common disaster, burden is on one claiming survivorship. Middeke vs. Balder, 198 ill. 590. Taxes: — Validity: Presumption is that assessment was legally made and for lawful purpose, and ])urden of proof is upon ol'.ieetor. Montk-ello Sem. vs. Board of Eeview, 242 III. 477; People vs. Gu- zenhauser, 237 111. 262; In re Maplewood Coal Co., 213 111. 283; Tolnian vs. Eaymond, 202 111. 197. A tax payer who o]>jects to the levy on the gronnd cf the insuf- ficiency of the certificate has burden of showing sucU insufficiency. People vs. C. I. & St. L. Ry. Co., 249 111. 102. — Exemption: Burden is upon one who asserts property is exempt. Montieello Sem. vs. Board of Eeview, 242 111. 477; I. C. E. E. Co. vs. People, 119 111. 137. Burden is on one alleging he is not an able-bodied person liable to pay a poll-tax, in prosecution for failure to pay same. Braves vs. People, 97 App. 151. — Payment: Burden is on the party claiming title under seven years limitations to prove payment by clear and satisfactory' evi- dence. Manternacht vs. Studt, 230 111. 356; White vs. Harris, 206 111. 584; Bell vs. Neiderer, 169 111. 54. Tax Deed: Burden is on party claiming under tax deed to show validity. Keller vs. Egaii, 256 111. 45; Gage vs. Parker, 178 111. 455. On bill to remove tax deed as a cloud, burden is upon complain- ant to prove invalidity. Langlois vs. People, 212 111. 75; Gage vs. Curtis, 122 111. 520. And rule is same when proceedings are for partition and to can- cel tax deed. Glos vs. Carlin, 207 111. 192. Tender : Burden of proof is upon party alleging tender. Piilsifer vs. Shepard, 36 111. "513. Timber : In action for cutting timber, plaintiff suing as owner lias bur- den of showing title. David vs. Correll, 68 App. 123; Behymer vs. Odell, 31 App. 350. Proof of actual possession by person claiming title in fee sim- ple is sufficient to cast burden of contesting title upon defendant. Abney vs. Austin, 6 App. 49. Title: In action for breach of covenant of seizin, burden is upon plain- tiff to show title. Baker vs. Hunt, 40 111. 264. A faction of a religious society has burden of proving title where property has been in possession of other faction for years, Kuns vs. Eobertson, 154 111. 394. BURDEN OP PROOF 249 Trade Mark : Where a person seeks to establish a trade mark, proof must be clear, leaving the question bevond a reasonable doubt. Candee Co. vs. Deere Co., 54 111. 439. Trespass : Burden is upon plaintiff to establish acts complained of. Fort Dearborn vs. Klein, 115 111. 177; Mead vs. Pollock, 9!) App. 151. Under plea of general issue, burden of proving trespass is upon plaintiff. West Chi. St. Ey. Co, vs. Morrison, 160 111. 1'88. Trover : Burden of proof is upon plaintiff to show right of property at time of conversion, and actual possession or right to possession thereof. Stock Yards vs. Mallory, 157 111. 554; Frink vs. Pratt, 130 111. 3L'7; Hays vs. Mass. Life Ins. Co., 125 111. 626. Trust: Burden is on party alleging. State Bank vs. Barnett, 250 111. 312; Keuper vs. Mette, 239 111. 586. Trust Funds: Burden is on corporate officer to whom funds were entrusted to show due and proper disposition. Herald Dispatch Co. vs. Hostetler, 130 App. 179. Undue Influence: — Will: Burden is upon the contestant. Kellau vs. Kellan, 258 111. 256; Michael vs. Marshall, 201 111. 70; Webster vs. Yorty, 194 111. 408; Sears vs. Vaughn, 230 111. 572; XIV 111. Notes 1039, § 108. — Deed: Burden of proving is upon complainant. Lord vs. Beed, 254 111. 350; Beatty vs. Hood, 229 111. 562; Blanch ard vs. Blanchard, 191 111. 450; Francis vs. Wilkinson, 147 111. 370. Usury : One alleging that a transaction is usurious has the burden of^ establishing the fact by a preponderance of the evidence. Garlick vs. Mutual B. & L. Assn., 236 111. 232; Hotchkiss vs. Park Assn., 229 111. 248; Ganzler vs. Schmeltze, 206 111. 560; Wright vs. Curtis, 137 App. 267; Cobe vs. Guyer, 139 App. 580. Vagabond : AVhere defendant is shown to be an associate of pickpockets and two witnesses testify they have known him for five years and never knew him to be employed, his means of support being a fact pe- culiarly within his knowledge the burden is upon him to show same. People vs. O'Keefe, 178 App. 86. Value : In action for physical loss of a promissory note through neg- ligence of carrier, the burden is not upon the plaintiff, in the first instance, to prove the actual value of such note, its face value being its actual Aalue until contrary is established. Hoflf vs. Parmelee Co., 140 App. 458; Anier. Ex. Co. vs. Parsons, 44 111. 312. Vendor's Lien: Burden of proof is upon purchaser to show deed to wife of orig- inal vendor discharges lien. Martin vs. Field, 135 111. 240. 250 BURDEN OF PROOF Venue : Burden is upon State, in default of specific proof of venue, to prove "that it cannot be readily determined in what county the offense was coniinitted. " Watt vs. People, 126 111. 9. Voluntary Conveyance: In the case of deeds executed to effect a voluntary distribution or settlement, the law will presume a delivery, and this presump- tion is especially strong where a father makes a conveyance for the benefit of his infant child. The burden of proof shifts in such eases and it is required that any one claiming adversely to such grantee must show there was no delivery. Thurston vs. Tubbs, 257 111. 465. Waiver : The burden of proof is upon party relying upon waiver of con- ditions or terms of contract. North Ins. Co. vs. Steger, 124 111. 81. Burden of establishing waiver of vendor's lien is upon party alleging such waiver. Weddell vs. Pinneo, 127 App. 319; Wilson vs. Lyon, 57 111. 166. So where purchaser conveys property to wife of vendor, and she surrenders his note to him, and this is relied upon as a discharge of the debt and lien burden is on purchaser to show vendor agreed to accept deed in discharge of lien. Martin vs. Field, 135 111. 240. Warranty : Burden is upon plaintiff to show warranty. Burns vs. Nichols, 89 111. 480; Nichols vs. Williamson, 44 111. 48. "Where vendor delivers the identical thing sold, and has per- formed his contract in that behalf, if vendee alleges that it fails to possess the attributes it was warranted to possess, on that issue the buyer has the burden of proof. Burt vs. Garden City Sand Co., 237 111. 473; Morris vs. Wibaux, 159 111. 627. Waters and Watercourses: — Boundary: A riparian owner who claims to the thread of a stream, must show that the water is a stream and that the stream is the boundary. School Trustees vs. Schroll, 120 111. 509. — Navigahility: Artificial slip or ditch, burden is upon party assertin*-"" Ligare vs. C. M. & N. Ey. Co., 166 111. 249; People vs. Economy Power Co., 241 111. C90. Water Rate : Water rate fixed by city presumed to be reasonable and burden is on one alleging contrary. Water Co. vs. Lake Forest, 249 111. 382. Wills: — Testamentary Capacity: The proponents have the burden, in the first instance, of proving the testator's sanity. Ilollenbeck vs. Cook, 180 111. 65; Wilbur vs. Wilbur, 129 111. 392; Voodry vs. University, 251 111. 48; XIV 111. Notes 1029, §30. The testimony of the subscribing witnesses as to the sanity of the testator is sufficient to make out a prima facie case in support BURDEN OF PROOF 251 of the validity of the will. The burden is then upon contestants to show the contrary. Wilkinson vs. Service, 249 111. 146; Waters vs. Waters, 222 111. 26: Baker vs. Baker, 202 111. 595. And contestants have burden of overcoming added presumption of sanity by a preponderance of the evidence on the whole case. Egbers vs. Egbers, 177 111. 82. And instruction should give proponents benefit of presumption of sanity, Todd vs. Todd, 221 111. 410. — Undue Influence: Burden of proving undue influence is on contestant. Kellan vs. Kellau, 258 111. 256; Conipher vs. Browning, 219 111. 429; Swearinggen vs. In man, 198 111. 255. As a matter of law, the burden of proof in any case is deter- mined by the issue, and it does not shift but at the end, the party upon whom the burden rests by the pleadings, must have sustained his position by a prepcniderance of the evidence. Michael vs. Marshall, 201 111. 70. Where proponents make a prima facie proof of the validity of the will, it is incumbent upon contestants to overcome the prima facie case by a preponderance of the evidence. Compher vs. Browning, 219 111. 429; Webster vs. Yorty, 194 111. 408. The general rule as to gifts or conveyances to one standing in a fiduciary relation, is not applicable to wills. Michael vs. Marshall, 201 111. 70; Hurd vs. Eeed, 260 111. 154. A distinction exists between undue influence arising from coer- cion or active fraud, and undue influence resulting from the abuse of a fiduciary relation existing between the parties. Proof of the relationship and of the fact that the beneficiary, in whom trust and confidence were reposed by the testator, prepared or procured the preparation of the will by which he profits, may or may not be a preponderance of all the evidence on that subject. When that proof is made, the presumption arises therefrom that undue influ- ence induced the execution of the document. That proof casts upon the proponent, if he is to sustain the will, the necessity of showing that the execution of the will was the result of free delib- eration on the part of the testator, and the deliberate exercise of his judgment, and not the imposition or Avrong practiced by the trusted beneficiary. This, however, does not change the general rule, which is that upon the whole case the burden of proof is upon the contestants to establish the undue influence. Weston vs. Teufel, 213 111. 291. Witnesses : — Disqualifying Interest: Burden is upon one who objects, to state and prove the grounds of his objection. Boyd vs. McConnell, 209 111. 396; Southern Inst. vs. Avery, 157 App. 568. — Written Statements to Impeach: Burden of showing gen- uineness and unchanged condition as when made, is upon party offering. Helgesen vs. Chi. S. W. Co., 156 App. 541. 252 BURGLARY Work and Services : Party aftirniing- that a certain compensation was agreed upon has the burden of proving same. ^ HoAvard \s. Goebel, 62 App. 497. Where pkiintitt' declares generally for work and labor done and materials furnished, and defendant files general issue with notice that he will insist on the trial that the work was performed under a written contract, the burden of proof is not thrown on plaintiff to show abandonment of spc/ial contract until defendant has proven the averment in his notice. Robinson vs. Parrish, 62 111. 130. Tile burden of proving a special plea setting up a contract dif- ferent from that set up by the plaintiffs is on defendants. Osgood vs. Groseclose, 159 111. oil. BURGLARY Building : — lltdtl: Is included within the meaning of the words "other buildinu'/' used in statute relating to crime of luirglary. "Brueu vs. People, 206 111. -117. — Stable: Indictment need not aver stcible to be building, same will be presumed. Orell vs. People, 9-1 111. 4-56. — Dwelling: Actual residence in the house at the time of the burglary need not be shown. Schwabacker vs. People, 16-5 111. 618. — Engine Roam: It cannot be said that the designatiou "en- gine room" falls within the ordinary understanding of the term buildino'. It must be described as a building. "Kinkaid vs. People, 139 111. 213. Ownership : — Possession: Proof of actual or constmctive possession is suf- ficient to establish the alleged ownership. Smith vs. People, 115 111. 17. An allegation that defendants forcibly broke and entered "the office of the city of Roekf ord ' ' is sustained by proof that the offices burglarized were leased by the city and were occupied by the officers of the city for the sole purpose of transacting the city's business. People vs. Everett, 242 111. 62 S. — By Partnership: That a partnership exists may be implied from circumstances and positive proof is not indispensable. Whether certain persons are partners or not, is purely a question of fact to be determined from the evidence. Bruen vs. People, 206 111. 417. — Corporations: User is sufficient. Rule applicable to foreign corporations. Kinkaid vs. People, 139 111. 213; Groff vs. People, 108 App. 168. But oral proof as to fact of being a corporation is improper. People vs. Burger, 259 111. 284. Intent : — Intoxication: When it is neeessaiy to prove a specific intent, BURGLARY 253 before a couvietion can be had, it is eoiiipelenl to prove Jind it may be shown in defense, that accused was, at the time, so intoxi- cated as to be incapal)le of forming the intent. Bruen vs. People, 200 111. 417; Schwa) nu-ker vs. People, 1G5 111. G18: Feister vs. People, 12.5 111. 848. — Consent of Owner: May be siiown. Lyon vs. People, (18 Til. 271. Identification of Burglar: — Fussission of Stolen Properly: The possession of property recently stolen is prima facie evidence tliat the person in possess- ion committed tbe l)nrg]ary. The rule in regard to possession of stolen property innuediately after tlie theft being evidence of guilt, applies in cases of burglary as well as larceny. People vs. Everett, 242 111. 628; McCee vs. People, 139 111. 108; Cf. Miller vs. People, 229 111. 376. — Disposition of Stolen Goods: Evidence that defendant had the opportunity to place the stolen articles where they were found shortly after the larceny, is a circumstance which, taken in con- nection with other circumstances in proof, tends to establish his guilt, and the further fact that other persons had a like oppor- tunity oidy weakens the force of such circumstances, but will not render it incompetent as criminating evidence. Padfield vs. People, 146 111. 660. — Burglar's Tools: Found upon the person of accused when arrested, may be put in evidence, even though the carrying of burglar's tools constistutes a separate crime, where the property stolen at the time of the burglary is found in the possession of accused who claimed he acquired the same by purchase. Williams vs. People, 196 111. 173. Broken burglar's tools found in possession of defendant and exactly fitting the broken otf part found in the door jamb of the burglarized house is a strong circumstance of guilt. White vs. People, 179 111. 3-56. — Keys: Where charge is that of burglary in entering a hotel, proof that the keys of other hotels were found upon person of ac- cused one of which unlocked the door of the room where he Avas discovered, is admissible. Bruen vs. People, 206 111. 117. — Experiments: Evidence of actual experiments made by wit- nesses, as to the view which could be had of persons and objects under the conditions testified to by witnesses identifying defend- ants, as being the same conditions existing when he first saw such defendants, is admissible, the discrepancies in conditions, if any, affecting the weight of the testimony, not its competency. Hauser vs. People, 210 111. 253. Time of Entry: If an indictment for burglary is framed under first part of statute in relation to such crime, without alleging whether the crime was committed in the day time or the night, it is not a fatal variance if the proof shows the offense was committed at night. Bruen vs. People, 206 111. 417; Schwabacker vs. Peoi)le, 165 111. 618; XI III. Notes 713, § 4. 254 BURNING But if alleged committed in night time and proof shows it was committed in day time, there is a fatal variance. Bromley vs. People, 150 111. 297. Conduct and False Statements: Admissible. , ,„„ t,, o^^ Williams vs. People, 196 111. 173; White vs. People, 1*9 111. 356; McGee vs. People, 139 111. 138; Spahn vs. People, 137 111. 538. BURNING See Arson, Fires. BURNT RECORDS See Abstracts of Title, Copies, Records. BUSINESS See Admissions, Account Stated, Books op Account, Custom AND Usage, Judicial Notice, Res Gestae. BYLAWS See Corporations, Insurance. BY STANDER See Admissions and Declarations, Res Gestae. CALENDAR See Judicial Notice. CANADA THISTLES Admissibility of Evidence: Evidence is admissible, in defense, of a bona fide effort to pre- vent maturing of seed, and where there is evidence that defendant has made an honest effort to destroy the thistles in question, con- viction can not be had. C. M. & St. P. By. Co. vs. People, 132 App. 531; Storey vs. People, 79 App. 562. CANCELLATION OF INSTRUMENTS 255 CANCELLATION OF INSTRUMENTS See Rescission op Contracts, Weight and Sufficiency. Burden of Proof: — General: Burden is upon party seeking cancellation to es- tablish grounds alleged. Uliver vs. Oliver, 110 111. 119. — Fraud and Undue Influence: The burden of proof is upon complainant to show truth of charges of fraud and undue influ- ence as grounds for setting aside his deed. / Beatty vs. Hood, 229 111. 562; Willeniou vs. Dunn, 9;? 111. 511. — Insanity: On bill by conservator to set aside a conveyance made by his ward, on ground of insanity of grantor and undue influence of grantee over him, the burden is upon complainant to prove one or both of these allegations by a preponderance of the evidence. Blanchard vs. Blanchard, 191 111. 450; English vs. Porter, 109 111. 285. And at time of execution of the instrument. Titconib vs. VanTyle, 84 111. 371. Presumption of law before inquest found is in favor of sanity, and burden of proof is upon party alleging insanity. Kelly vs. Nnsbaiim, 244 111. 158 ; Stevens vs. Shannahan, 160 111. 330; Lilly vs. Waggoner, 27 111. 395; XII 111. Notes 477, §26. Parol Evidence : Parol evidence of the circumstances connected with a transaction and the declared intention of the parties in executing a written instrument, is admissible for purpose of showing fraud, accident or mistake. Race vs. Weston, 86*111. 91. The rule that parol evidence is inadmissible to vary the terras of a written instrument has no application to a suit to set aside a written instrument on ground of fraud. G. T. & C. G. K. E. Co. vs. Walton, 150 111. 428; Wilson vs. Haecher, 85 111. 349. Weigtit and Sufficiency: — Fraud: To justify a court in rescinding a contract executed by both parties on ground that one of the parties was induced to enter it through fraud practiced by the other, the testimony must be of the strongest and most cogent character and the case a clear one. Tuck vs. Downey, 76 111. 71; Walker vs. Hough, 59 111. 375, Con- dit vs. Dady, 56 App. 545. And must be aliout a material and existing matter or one import- ant to the interests of the party complaining, for if it is shown to be of an immaterial thing, or if the other party did not tnist to it or if it was a matter of opinion or facts equally open to inquiry of both parties, and in regard to which neither of them could be presumed to trust in the other, there is not sufficient reason for equity to grant relief on ground of fraud. Tuck vs. Downey, 76 111. 71; Brady vs. Cole, 164 111. 116; Burwash vs. Ballou, 230 111. 34. 256 CAPACITY Party must not only prove the fraud, but also that he relied upon the fraudulent representations and acted thereon. Hooker vs. Midland Steel Co., 215 111.* 444; Dady vs. Condit, 163 111. 511; Jones vs. Foster, 175 111. 459. Delay : Uni'easonal)le delay on part of one seeking cancellation after lie has discovered the ground on which he relies, is evidence of acquiescence, and failing to act promptly, he must be presumed to have waived irregularities. Eastman vs. Littlefield, 164 111. 124; Bush vs. Sherman, 80 111. 160; Hay vs. Baugh, 77 111. 500. CAPACITY See Character, Experiments, Expert and Opinion, Infants, Sanity and Insanity, Wills, Witnesses. CARE See Habits, Burden of Proof, Due Care. CARNAL KNOWLEDGE See Adultery, Incest, Rape, Seduction. CARRIERS See Admissions and Declarations, Assent, Bailment, Bill of Lading, Experiments, Parol, Res Gestae. CAUSE See Expert and Opinion, Insurance, Suicide, Experiments. CENSUS See Judicial Notice. CERTIFICATES See Copies, Objections, Certificates of Evidence, Acknowl- edgments, Anti-Saloon Territory. Admissibility : Non Existence of Record: Official certificates of officers are not admissible to create proof of non-existence of any fact of record. Boyd vs. C. B. & Q. Ry. Co., 103 App. 199; Cross vs. PmckneyviUe Mill Co., 17 111. 54. CERTIFICATES 257 So certificate of Secretary of State is iiia(lmissil)le to show that certificate of organization of corporation had not been filed in his office. Cross vs. Pinckneyville Mill Co., 17 111. 54. Certificate of clerks of county and circuit courts are inadmissible to show that there exists no record of a certain matter, Beardstown vs. Virginia, 81 111. 541. Or certificate of city clerk. Boyd vs. C. B. & Q. Ey. Co., 103 App. 199. The_ certificate of a county clerk showing that a party was not a justice of the peace at the date of an acknowledgment purport- ing to have heen taken by him is some, though not conclusive, evi- dence of such fact. Boss vs. Hole, 27 111. 104. Any person who has examined an official record may state that it shows nothing with reference to a certain matter. Welsh vs. Shumway, 232 111. 54; Beardstown vs. Virginia, 81 111. 541. But bankruptcy schedules are not records, and parol evidence is inadmissible to show they do not embrace certain items. Thompson vs. Caverly, 148 App. 295. — Certificate of Probate Judge: Inadmissible to show who are the heirs of a deceased person. Greenwood vs. Spiller, 3 111. 504, — Municipal Clerk: Certificate of a municipal clerk, contain- ing mere conclusions as to citizenship of a person, and not purport- ing to be issued by the authority admitting such person to citizen- ship, or to be an exemplification of any record, is not admissible. Schafer vs. Wimderle, 154 111. 577. — Clerk of Foreign District Court: Certificate of clerk of dis- trict court of foreign state, that there appeared in his office the record of a marriage license and certificate of marriage, giving copy of same, is inadmissible on question of marriage, unless such record is shown to be required, by the laws of such state, to be kept. Tucker vs. People, 117 111. 88. — Clerks of County and Circuit Court: Certificate of magis- tracy by county clerk must be attached to certificate of justice where proceedings are in another county. Crosset vs. Owens, 110 111. 378. Parties are bound to take notice of the fact that the clerk of the county court is county clerk. People vs. Phinney, 231 111. 180; People vs. Monroe, 227 111. 604. The objection that a paper filed in application for judgment and order of court for special assessment bears file mark of county clerk instead of clerk of county court, is one which may be obvi- ated by amendment. People vs. Phinney, 231 111. 180; People vs. Monroe, 227 III. 604. If the office of the county clerk and that of clerk of the county court are both held by the same person, a certificate to records of the Board of Supervisors, signed by such person, is not vitiated by the fact that he appends to his signature the designation of clerk of the county court. People vs. Lyons, 168 App. 396. Copies of records and certificates of which the count}^ clerk is Ev.— 17 258 CERTIFICATES the legal custodian are not admissible in evidence if certified by tlie "clerk of the county court," since the offices are distinct, al- though held by the same person. Tifft vs. Greene, 211 111. 389. — Comptroller of Currency: In action by bank on note, a cer- tificate of the comptroller of currency, showing compliance with law and authority to do business, is admissible on issue raised by plea of iiul tiel corporation. Mix vs. Bank, 91 111. 20. — Comptroller of City: Certificate of city comptroller as to in- debtedness of city, and amount thereof, is incompetent in proof of such fact. It is not a certified copy of any record, papers or en- tries, but a mere statement of facts by the comptroller, or a state- ment of his conclusion from the records in his office, and is not evi- dence. City of Chicago vs. English, 180 111. 476; See Norton vs. City of E. St. Louis, 36 App. 171. — Register of Land Office: The official certificate of any regis- ter or receiver of general land office of the United States, to any matter or fact of record in his office, is competent in civil cause to prove fact so certified to. Black vs. C. B. & Q. Ey. Co., 237 111. 500; Wilcox vs. Jackson, 109 111. 261; Seeley vs. Wells, 53 111. 120; Wyman vs. City of Chicago, 254 111. 202. A register's certificate, to be evidence of title, under the statutes, must show^ entry and purchase of land; it is not enough that the register certify that a certificate had been granted to a certain person as claimant to a certain claim and sui'vey. Aides vs. Abbott, 23 111. 61. ■ The certificate of the receiver of land office, of the receipt of purchase money for a tract of land, is not evidence of title thereto. Carson vs. Merle, 5 111. 363; Eoper vs. Clabaugh, 4 111. 166. (See Title.) — ClerTi of Supreme Court: A certificate issued by the clerk of the Supreme Court, stating that a writ of error had been issued from that court to reverse a certain judgment, wliieh writ had been made a supersedeas, is not admissible to prove those facts, the proof thereof being a copy of writ and supersedeas order, duly au- thenticated. Steidl vs. People, 173 111. 29. — Secretary of State: The certificate of the Secretary of State, showing what proceedings were had in either branch of the Gen- eral Assembly, in relation to the passage of a bill, is competent evidence to shoW' whether or not the same was passed in the consti- tutional mode ; and wiiere such certificate, in due form, purports to give all the proceedings, there can be no inference that any other proceedings were had in relation to passage of the bill. Eyan vs. Lynch, 68 111. 160. In prosecution for using a counterfeit or imitation of a label, trade-mark or forai of advertistment of any person, union or asso- ciation, knowing same to be a counterfeit, the certificate of Sec- retary of State, under his hand and seal, issued in conformity with section 3 of act 1891, to protect associations, etc., in their labels. CERTIFICATES 259 is siifificient proof of the adoption of such lahel, trade-mark or advertisement, and of ri,c:lit to adopt same. Colm vs. People, 149 111. 48G. — Election Canvassers: Certificates of officers who canvassed the election, which state tlie meetino- of the canvassing board, and the canvassing of the returns; the number of votes cast and tlie majority, is sufficient. They need not recite legal votes nor copy the official ballot. Presumption is that votes were legal. People vs. Walker, 154 App. 3; People vs. Joyce, 1.54 App. 13. — Aiiditofs Certificate: The auditor's certificate that speci- fied lands within a county were ceded to it as swamp lands is made evidence of that fact by act of 1854. Grand Pass Shooting Club vs. Crosby, 181 111. 266; W. St. I^ & P Ey. Co. vs. McDougal, 113 111. 603. The absence of seal froin such certificate cannot avail. Cilbreath vs. Dilday, 152 111. 207. A clerical error or mistake of the printer, in naming the year for which taxes were assessed, in the printed proceedings of the State Board of Equalization, cannot control a correct statement of the year in a certificate of Auditor, which the state makes evi- dence of action of the board. K. & H. Bridge Co. vs. People, 161 111. 514. _ _ — Surveyor's Certificate: Is not evidence in a cause. A copy of his record of survey is prima facie evidence. Kyle vs. Town of Logan, 87 111. 64. — Certificate of Evidence: A certificate of evidence in chan- cery may be read in evidence on later trial of same cause. O 'Conner vs. INfahoney, 159 111. 69. Weight and Sufficiency: — Certificate of Acknowledgment: Certificate of acknowledg- ment to a deed is evidence only of those matters to which an offi- cer is required to certify, and it may be shown that the grantor was incapable of contracting at time acknowledgment was taken. Walker vs. Shepard, 210 111. 100. Certificate of acknowledgment is prima facie proof of execution of a deed. Spencer vs. Razor, 251 111. 278; Scliroeder vs. Smith, 249 111. 574. (See Acknowledgments.) — Mine Engineer: The fact that the law proliibits a mine owner from employing a hoisting engineer not having a certificate of competency from the State Board of Mine Examiners does not make such certificate conclusive of the competency of an engineer, so as to debar a miner injured by his negligence from showing that he was incompetent, and that the employer had notice, either actual or constructive, of that fact. Con. Coal Co. vs. Seniger, 179 111. 370. Presumptions : A certificate, under seal, by a foreign notary, is not prima facie evidence of his authority to administer oaths unless it contains a recital of the fact of his authority. DesNoyers Shoe Co. vs. Bank, 188 111. 312; Trevor vs. Colgate, 181 111. 129; Ferris vs. Bank, 158 111. 238; Smith vs. Lyons, 80 111. 600. A certificate of acknowledgment is prima facie evidence of au- thority of officer making it. Harding vs. Curtis, 45 111. 252; Ramsey vs. People, 197 111. 594. 260 CERTIFIED COPIES A certificate of acknowledgment of deed is prima facie evidence of material facts therein stated. Hogan vs. Waldo, 168 111. 646; Blackmail vs. Hawkes, 89 111. 512; O 'Donald vs. Kelliher, 62 App. 6-41; Warrick vs. Hull, 102 111. 280; XI 111. Notes 38, §42. Amendment : Certificate of acknowledgment cannot be amended by parol. Eunor vs. Thompson, 46 111. 214. CERTIFICATES OF EVIDENCE Admissibility : A certificate of evidence in chancery, being a part of the record for all pnrjDOses of the litigation, and for the support and preserva- tion of the decree may be read in evidence on a later trial of the same ease. "While there is some analogy between certificates of evidence in chancery, and bills of exceptions at law, still they are governed by essentially different rules. Bills of exceptions are prepared merely for the purpose of presenting the proceedings and evidence at the trial for review on appeal or writ of error, and when that object is accomplished, they are functus officio. Not so, however, Avitli certificates of evidence in chancery. They become part of the record for all purposes. O'Connor vs. Mahoney, 159 111. 69. And is admissible to show former adjudication and what issues were tried. Chi. Term. vs. Barrett, 252 111. 86. CERTIFIED COPIES See Copies, Certificates, Records. CERTIORARI Admissibility of Evidence : — Before Writ Issued: Evidence extrinsic to the record may be very properly received before issuing of the writ to show that no injustice has been done. Deslauries vs. Soucie, 222 111. 522; Sampson vs. Comrs. of High- ways, 115 App. 443. — After Writ Issued: On motion to quash the writ and dismiss the petition, extrinsic evidence may then be heard, not for the purpose of contradicting or enlarging the record, but to show that public detriment and inconvenience might result from quashing the original proceedings. Deslauries vs. Soucie, 222 111. 522; Drainage Comrs. vs. Volke, 163 111. 243; Hyslop vs. Finch, 99 111. 171. — Return of Writ: On return of writ, court will look only to the record. It is not permissible to form issues of fact or hear evi- CHANCERY 261 dence relative to questions involved upon the trial of the original proceeding or heard upon that trial. Joyce vs. City of Chicago, 216 111. 466; People vs. Lindblom, 182 111. 241; Scheiwe vs. Holz, 168 111. 432; Donahue vs. County of Will, 100 111. 94; XI 111. Notes 825, §47. CHANCERY See Answers, Former Ple^vdings, Garnishment. BURDEN OF PROOF: When Upon Defendant: Where a defendant in chancer)^, in his answer, admits all the allegations of the bill, and seeks to avoid them by setting up new matter, not responsive to the bill, and a replication is interposed, the onus of proving the new matter is upon defendant, and com- plainant has no facts to prove, as a party is not required to prove facts alleged in his pleadings which are admitted by the pleadings of the opposite party. And this is the rule though the answer which sets up the new matter be sworn to. Pankey vs. Eaum, 51 111. 88; Cooper vs. Tyler, 46 111. 462. No Replication: Where a case is heard on the bill and answer, or upon bill, and answer and exhibits, without challenge by replication, the answer is taken as true. The complainants thereby admit that all that is stated in the answer is true, and whether it be responsive to the bill or not, they have no ground of relief except the facts which are substantially admitted in the answer to be true. Kingman" vs. Mowrev, 182 111. 256; Oook County vs. G. W. R. R. Co., 119 III. 218; Pordyce vs. Striver, 115 111. 530; Mason vs. Mc- Girr, 28 111. 322; Goddard vs. C. & W. Ry. Co., 104 App. 526; Medical College vs. Zeigler, 86 App. 360; Taylor vs. Taylor, 52 App. 527; Cf. Chambers vs. Rovve, 36 111. 171; Kaegbin vs. Higgle, 51 App. 538; XII 111. Notes 418, § 323. ISSUES AND PROOF: Of the Bill: — Material Allegations: All material allegations of the bill not admitted nor denied must be supported by proof. Traversable allegations are not deemed impliedly admitted. Howards vs. Boyle, 248 111. 251; Shuld vs. Wilson, 225 111. 336; Glos vs. Crattv, 196 111. 193; Wilson vs. Augier, 176 111. 561; Llewellin vs. Dingee, 165 111. 26; XII 111. Notes 415, §277. But if the answer of the guardian ad litem should admit the charges in the bill to be true, this will not affect the infant's rights and the bill must be proven with the same strictness as if the an- swer denied the allegations. ChafRn vs. Kimball, 23 111. 36; Mason vs. Truitt, 257 111. 18. — Allegations and Proof Must Correspond: The allegations of a bill in equity, the proof and the decree must correspond, and a complainant is not entitled to relief, although the evidence may establish a clear case, unless there are averments in the bill to sup- port the case made out by the evidence. Stearm vs. Glos, 235 111. 290; Angelo vs. Angelo, 146 111. 629; Heath vs. Hall, 60 111. 344. 262 CHANCERY No facts are properly in issue unless alleged in the bill, and re- lief can not be granted by the decree as to matters not alleged. Eiee Co. vs. McJohn, 244 111. 2(34; Langlois vs. People, 212 111. 75; Helm vs. Cantrell, 59 111. 524; Kowan vs. Bowles, 21 111. 17. Unverified Answer: The only etfect of an unverified answer is to reach an issue, like any other pleading, whether it is verified or not. West Chi. St. Ey. Co. vs. Stoltzenfeldt, 100 App. 142. Defendant cannot denv facts admitted by his answer. Milliard vs. Milliard, 221 111. 86. Sworn Answer: The statement of facts in a sworn answer to a bill which has not waived answer under oath is, so far as responsive to the bill, evi- dence in favor of the defendant and must be taken as true unless disproved by evidence equal in the probative to the testimony of two witnesses. JPish vs. Fish, 235 111. 396 ; Mey vs. Gulliman, 105 111. 272 ; Cisna vs. Walters, 100 111. 623; Bragg vs. Geddes, 93 111. 39; Hannaman vs. W^allace, 97 App. 46. But it may be impeached by its own improbability or the incon- sistent conduct or declarations of the partv swearing to it. Fish vs. Fish, 235 111. 396 ; Diemal vs. Brown, 136 111. 586. The rule does not apply with respect to conclusions and indirect answers contained in such a pleading. The answer, to have the weight of two witnesses, must be scpiarely responsive to the allega- tions of the bill. Miller vs. Armstrong, 169 App. 185. Where a sworn answer to a bill in chancery does not deny any material allegations in the bill, the doctrine that it must be over- come by evidence equal in probative force of two witnesses has no application. 'ir .■■,/ -r-^ Forbes vs. Ilall, 34 111. 159. — Information and Belief: Nor has the rule any application to averments denied merely on information and belief, it is only when defendant states facts within his own personal knowledge. Diemal vs. Brown, 136 111. 586. A sworn answer to a bill in chancery must be taken as true un- less overcome by the testimony. Where such answer sets up a material fact responsive to the bill, which is denied by two wit- nesses, and is sustained by defendant answering and another de- fendant, they all being equally credible, it cannot be said that the answer is overcome. Hurd vs. Ascherman, 117 111. 501. — Burnt Records Proceeding : A sworn answer in burnt records proceeding is not evidence as in ordinary chancery proceedings, and has no greater weight as evidence than the petition. Miller vs. Stalker, 158 111. 514. Admissibility of Answer of One Defendant: As a general rule, the answer of one co-defendant in chancery cannot be introduced in evidence against another. Bust vs. Mansfield, 25 111. 336; Eector vs. Eeetor, 8 111. 105. It is a general rule that the answer of one defendant is not evidence against his co-defendants ; but it does not apply to cases where the other defendant claims under him. This doctrine, how- CHARACTER 263 ever, is too general in its terms, as an exception to tlie general rule, for where one is nominally, not substantially, a defendant, and his interest is identified with complainants, his answer cannot be used against a co-defendant. Martin vs. Dryden, 111. 187. But when such defendants are partners, or when one has acted as the agent of the other in any transaction to which the answer may relate, same is admissible, the partnership or agency existing at the time of liling the answer. Pensoneau vs. Pulliam, 47 111. 58; Eust vs. Mansfield, 25 111. 336. So the answer of one co-defendant may be read in an inter- pleader suit. Morrill vs. Manhattan Ins. Co., 183 111. 260. Answer of one co-defendant cannot be admitted on behalf of complainant against defendant in default, merely by reason of such default. Clark vs. Wilson, 127 111. 449. The reason why an answer of one defendant in chancery cannot be used against his co-defendants is because, as there is'^no issue between them, there can be no opportunity for cross examination. Pensoneau vs. Pulliam, 47 111. 58. CHARACTER See Breach of Promise, Criminal Conversation, Malicious Prosecution, False Imprisonment, Seduction, Libel and Slan- der, Assault and Battery, Fraud, Impeachment, Contradiction, and Sustaining Witnesses, Chastity, Credibility, Former Con- viction, Accomplices, Separate and Similar Offenses, Pardon. Civil Actions: — In General: As a general rule, evidence of good character is confined to criminal prosecutions involving question of moral tur- pitude. There are some exceptions, consisting of that class of ac- tions where general character is drawn in question by the pleadings or points involved in the cause. In slander, plaintiff's general moral character is an object of inquiry with a view to the amount of damages he is entitled to claim. In actions for seduction, crim- inal conversation and breach of promise of marriage contract, character of parties may be involved. But where a civil action is brought for an injury to the rights of property, though the injury is legally criminal and involves moral turpitude, so that on an indictment evidence of character would be obviously receivable, it is inadmissible. Civil actions in which gross fraud and even forgery is charged, are frequently presented with results deeply affecting reputation of defendant, yet in such cases, it is not competent to permit de- fendant to repel the proof of such charges by showing good repu- tation. McBean vs. Fox, 1 App. 177; Ellwood vs. Walter, 103 App. 219. There are two classes of cases in which moral character and con- duct of persons in society may be used in proof before a jury in 264 CHAEACTER civil actions, each resting upon peculiar and distinct grounds. Such evidence is admissible, first, to aft'ect the damages in particular cases where their amount depends upon the character and conduct of any individual ; and second, to impeach or confirm the veracity of a witness. Berdell vs. Berdell, 80 111. 604; Sprague vs. Craig, 51 111. 288. Criminal Actions: — In General: In all criminal cases, whether the case is doubt- ful or not, evidence of good character is admissible on part of the defendant. Addison vs. People, 193 111. 405; Hirseliman vs. People, 101 111. 568; Anneals vs. People, 134 111. 401; Jupitz vs. People, 34 111. 516. But prosecution cannot put such character in issue. Kribs vs. People, 82 111. 425. — General Rejmiation: The inquiry must be made with refer- ence to the general reputation of the prisoner, for it is general char- acter alone which can afford any test of the general conduct or raise a presumption that the person who had maintained a fair reputation down to a certain period would not then begin to act an unworthy part, therefore, proof of particular transactions in which the person may have been concerned are not admissible. The proper question is not "personal knowledge by the witness," but the defendant's "general reputation." Hirschman vs. People, 101 111. 568; XII 111. Notes 1242, § 123. — Relevant Traits: Defendant cannot prove reputation for an irrelevant trait of character; so on prosecution for rape, defendant may prove his general reputation for chastity, but not his general reputation as a peaceable and quiet citizen. Wistrand vs. People, 218 111. 323. — Particular Acts: Particular acts of misconduct are never admissible in rebuttal of proof of defendant's good character. Addison vs. People, 193 111. 405; Aiken vs. People, 183 111. 215; Gifford vs. People, 87 111. 210; McCarthy vs. People, 51 III. 231; Cf. Jennings vs. People, 189 111. 320. Nor can such evidence be said to be admissible for purpose of impeaching defendant's reputation as a witness, only, althoiigh not for the purpose of proving the offense charged. Reputation of a witness cannot be impeached by proof of particular acts, but it must be proved by showing his general reputation for truth and veracity is bad. Gifford vs. People, 87 111. 210. So a witness who has testified in a criminal case that the general reputation of accused as a peaceable and law-abiding citizen is good, cannot be asked, on cross examination, whether he has heard rumors of accused being connected with former criminal acts. Aiken vs. People, 183 111. 215. Evidence tending to show accused an immoral man is incompetent where such evidence does not tend to throw any light on the case. People vs. Cleminson, 250 111. 135. — Time: Defendant examined several witnesses as to his gen- eral reputation for peaceableness prior to the homicide, and court permitted State's attorney to cross examine the witnesses as to such general reputation covering a period subsequent to the of- fense. The homicide occurred four years prior to the trial, and CHARTER 265 the questions objected to were whether the witnesses knew anything about his reputation for tive or six years before the trial. The answers elicited were that they did not; that they had lost trace of him for five or six years before and that they did not know what his general reputcition had been during that period. This cross examination showed that for a year or two before the homicide they knew nothing about him or his reputation, either after the homicide or arising out of it, but merely developed the fact that the witnesses who said his reputation was good, knew nothing a])out it at the time of the killing or some-time before, and was entirely proper, Halloway vs. People, 181 111. 544. — Proof by Stipulation: Proof of good character may be made by stipulation. People vs. Anderson, 239 111. 1G9. — Number of Wit)icsscs: Court may limit the number of wit- nesses as to character. People vs. Arnold, 248 111. 169. — WeigJit: On a charge of crime, the previous good character of accused is but a circumstance to be considered by jury in connec- tion with all the other evidence in determining the question of guilt or innocence. If the evidence is complete and convincing, when considered with the previous good character, the evidence of good character will not avail. People vs. Anderson, 239 111. 168; Hirsebman vs. People, 101 111. 568. It has been held that the character evidence of a defendant may be of such weight as to justify setting aside a verdict of guilty. Walsh vs. People, 65 111." 58. And on prosecution for larceny, the previous good character of accused may repel all presumption of guilt arising from recent possession of stolen property. Watts vs. People, 204 til. 233; Conkwright vs. People, 35 111. 204. Character in Prosecution for Homicide: ^ See Homicide, Character of Witness : A party cannot call and examine witnesses to support the gen- eral character of another witness, or himself, as a witness, for truth and veracity, until the character of the witness thus sought to be supported has been directly assailed. Mere contradictions or dif- ferent versions by witnesses do not justify the application of the rule that evidence may be given favorably to a ^^^tness' character for truth. It is only when ^vitnesses are called who testify that his general character for truth is bad, that witnesses maj^ be intro- duced in support of his general character. Tedeus vs. Schumers, 112 111. 263; Magee vs. People, 139 111. 138. CHARTER See Corporations, Judicial Notice. 266 CHARTS CHARTS See Diagrams, Plats, Surveys, Field Notes and Monuments. CHASTITY ABDUCTION: Presumption and Burden of Proof: That female's previous life and conversation were chaste, and the onus is upon defendant to show otherwise. Bradshaw vs. People, 153 111. 156; Sloeuni vs. People, 90 111. 274. And this presumption is of probative force. Bradshaw vs. People, 153 111. 156. Declarations of Abducted Female: As to why she left home are hearsay and incompetent. Bradshaw vs. People, 153 111. 156. Previous Associations: Father may testify that his abducted daughter was a church member, attended Sunday-school, and was received in society be- fore her abduction, as tendino: to show her chastity. Bradshaw vs. People, 153 111. 156. ALIENATION OF AFFECTIONS : The general reputation of defendant for chastity is not compe- tent in an action for alienation of affections. Golden vs. Gartelman, 159 App. 338. ASSAULT AND BATTERY: It is not competent in a civil action for damages to prove that the plaintiff, who is a woman, had been guilty of adultery, either for the purpose of mitigating the act or for the purpose of impeach- ing plaintiff's credibility. Dimick vs. Downs, 82 111. 570. BASTARDY: Admissibility of Evidence: — General Reputation: The fact that the prosecutrix is an un- chaste woman is immaterial. Hobson vs. People, 72 App. 436; Seharf vs. People, 34 App. 400; Zimmermann vs. People, 117 App. 54; Halcom vs. People, 79 111. 409. G-eneral reputation of defendant is not competent. LaPlante vs. People, 60 App. 340. — Other Acts of Sexual Intercourse: Evidence that other per- sons had sexual intercourse with the prosecutrix at or near the time the child was begotten, is competent as tending to raise a doubt as to the paternity of the child. Holcomb vs. People, 79 111. 409; Zinimerniann vs. People, 117 App. 54; Pike vs. People, 34 App. 112; People vs. Gasner, 152 App. 54. But after conception, particular acts or general reputation is immaterial. Hobson vs. People, 72 App. 436. BREACH OF PROMISE: Knowledge of Defendant: The defendant nuiy show, in bar of action, the bad chai-aeter of CHASTITY 267 plaintiff, if it appear that lior character was unknown to him at the time of tlie promise. Butler vs. Eschelman, 18 111. 44; LaPorte vs. Wallace, 89 App. 517. When a party enters into an engagement to marry, with a knowl- edge that the other party was uncliaste, he will he (leemed to have waived the ohjeetion, and cannot afterwards set it up as a reason for his refusal to comply with his pi'omise. But if either party shall he guilty of acts of miehastity subsequent to the engagement, the other party is absolved from the contract, whether such subse- quent acts be known to the latter or not. Sprague vs. Craig, 51 111. 288. Where there is evidence that the plaintiff had been unchaste years prior to the engagement, and that the defendant did not know it when the promise was made, it is error to instruct the jury to find for the plaintiff if the defendant had failed to prove "that the defendant is not a chaste and virtuous woman," for defendant had a right to withdraw from the engagement if she had previously been unchaste, and he did not know it when he made the promise, even though she afterwards reformed, and had become a chaste and virtuous woman. LaPorte vs. Wallace, 89 App. 517. Mitigation of Damages: And so, if the want of virtue on the part of plaintiff was known to defendant at the time, it forms no ground of defense to the action, but it may be shown in mitigation of damages, for the rea- son that the breach does not result in the same injury as if her character had been good. Burnett vs. Simpkins, 24 111. 265; Kantzler vs. Grant, 2 App. 236; Doubct vs. Kirkhaiu, 15 App. 622; XI HI. Notes 665, §27. CRIMINAL CONVERSATION: Admissibility of Evidence: — Adultery by Wife: In action for seduction of plaintiff's wife, the character of the wife for chastity is involved. Crose vs. Eutledge, 81 111. 266; 'Sea vs. Tucker, 51 111. 110. And in mitigation of damages defendant may show that wife of plaintiff had been guilty of adultery with other persons before her connection with defendant. Eea vs. Tucker, 51 111. 110. So specific acts of unchastity prior to marriage to plaintiff may be shown. Such evidence, while no defense, is admissible in miti- gation of damages. Hardy vs. Bach, 173 App. 123. — Adultery hy Husband: Evidence is admissible to prove the adulterous conduct of the husband, in mitigation of damages, but such evidence is not admissible in bar of the action. Eea vs. Tucker, 51 111. 110; Bassett vs. Bassett, 20 App. 543. — Repidation of Defendant: Chastity is not involved, and evi- dence is not admissible in chief on part of plaintiff to show his reputation for chastity. Crose vs. Eutledge, 81 111. 266. Homicide : Reputation of deceased for chastity is not competent where de- fendant is charged with murder by inducing her to commit sui- 268 CHASTITY cide, where such reputation is not an issue and has not been at- tacked. Burnett vs. People, 204 111. 208. But on charge against a wife for the murder of her husband, it is competent for the i)rosecution to prove her unchastity in order to establish a motive for taking the life of deceased. Weyrieh vs. People, 89 111. 90. Rape: Character of Prosecutrix: — Right to hnpcach: The character of the prosecutrix for chas- tity may be impeached. Stevens vs. People, 1.58 111. Ill; Shirwin vs. People, 69 111. 56. An unchaste woman would be more likely to consent to the act than a virtuous one, and therefore her previous connection with the accused, or her general reputation for want of chastity are proper ingredients in determining the question whether the par- ticular act in controversy was accomplished solely by force, or with her virtual consent. Shirwin vs. People, 69 111. 56. Under age of consent, evidence to show that reputation of com- plaining witness for chastity is bad is not admissible. People vs. Gray, 251 111. 431. — Mode of Impeachment: As a general nile must be done by the general reputation, and not by particular instances of unchas- tity. Shirwin vs. People, 69 111. 56. But where the woman testifies that she was unconscious when the act was committed, and, to prove its commission, proves the subsequent want of the physical evidences of virginity, then par- ticular acts are competent. Shirwin vs. People, 69 111. 56, Character of Defendant: Not admissible in chief. Dalton vs. People, 224 111. 333; Janzen vs. People, 159 111. 440. But defendant may prove his reputation in that regard. Wistrand vs. People, 218 111. 323. SEDUCTION: Competent : General character for chastity is involved in the issue and the testimony of others than seduced may be introduced to show their own criminal intimacv with her, and the time and place. White vs. Murtland, 71 111. 250. Time : If the seduced is examined as a witness, it is not proper to ask of her whether, about the time the child was begotten, she had not had intercourse with other men. Doyle vs. Jessup, 29 111. 460. Particular acts of immorality as well as general bad character of party seduced must be confined to what occurred previous to the defendant's misconduct. White vs. Murtland, 71 111. 250. EMBEZZLEMENT: Chasity of Prosecutrix: In prosecution for larceny and embezzlement by an agent, al- CIRCUMSTANTIAL EVIDENCE 269 leged improper relations between the prosecuting witness and ac- cused can not be shown, as such proof would furnish no justifica- tion for the larceny, nor tend to show any motive on the part of prosecuting witness to testify falsely. People vs. Goodrich, 251 111. 558. CREDIBILITY OF WITNESrS: Want of chastity- cannot be shown to impeach the credibility of a witness. Dimmick vs. Downs, 82 111. 570. CHEAT See Conspiracy, False Pretenses, Fraud. CHILD See Guardian and Ward, Infants, Parent and Child, Pre- sumptions, Witnesses. CIGARETTES See Judicial Notice. CIRCUMSTANTIAL EVIDENCE In Particular Actions. See Specific Titles. Defined : Circumstantial evidence is evidence of facts from which the existence of other facts may be inferred. And is of two kinds, viz., certain, or that from which the conclusion in question neces- sarily follows; and uncertain, or that from which the conclusion does not necessarily follow, but is probable only, and is obtained by a process of reasoning. Gannon vs. People, 127 111. 507; P. & P. U. By. Co. vs. Clayberg, 107 111. 644. Legal Evidence: Circumstantial evidence is legal evidence. Parsons vs. People, 218 111. 386. It is not to be expected that crime will be proven by direct tes- timony. Schoolcraft vs. People, 117 111. 271. The law makes no distinction between direct evidence of a fact and evidence of circumstances from which the existence of a fact may be inferred. Slack vs. Harris, 101 App. 527. Any fact may be proved by circumstantial evidence alone. Gallagher vs. Singer Sewing Mach. Co., 177 App. 198. 270 CIRCUMSTANTIAL EVIDENCE Kinds : Certain, or that from which the conclusion in question neces- sarily follows; and uncertain, or that from which the conclusion does not necessarily follow, but is probable only, and is obtained by a process of reasoning. Carlton vs. People, 150 111. 181; Gannon vs. People, 127 111. 507. So no proof is required of facts which everybody is presumed to know. C. & E. I, E. E. Co. vs. Sehmitz, 211 111. 446. It is also a part of the common experience of all that many facts are so intimately connected with and dependent upon each other that the proof of one necessarily establishes the other, or at least affords so strong a presumption of the latter 's existence that no additional proof of it will be required until such presumption is overcome by countervailing testimony. To satisfactorily prove a given act also establishes, prima facie, the ordinary and probable consequences of such act. C. B. & Q. Uy. Co. vs. Warner, 108 111. 538. Inferences and Presumptions: — In General: Where facts and circumstances are proven which lead the mind with certainty to conclusions that other facts and circumstances are true, such latter facts and circumstances may be accepted and acted upon. P. & P. U. Ey. Co. vs. Clayberg, 107 111. 644. No inference of fact or of law is reliable drawn from premises which are uncertain. Whenever circumstantial evidence is relied upon to prove a fact, the circumstances must be proven, and not themselves presumed. Globe lus. Co. vs. Gerich, 163 111. 625. — Distinguished from Presampiions: Presumptions are infer- ences which common sense draws from the known course of events, or from circumstances usually occurring in such cases. Sears vs. Vaughn, 230 111. 572. And is properly an inference from a knowledge of the existence of some other fact drawn solely by virtue of previous experience of the ordinary connection between the known and infen-ed facts, and independently of any process of reason in the particular in- stance. McCagg vs. Heaeoekj 34 111. 476. — No Presumption on Presumption : One presumption cannot be the basis for a second presumption; that is, a presumption of fact is not alone a legitimate foundation for a second presumption or inference. Kevern vs. People, 224 111. 170 ; Condon vs. Schoenfeld, 214 111. 226 ; 111. Steel Co. vs. Bycyznski, 106 App. 331; Morris vs. St. L. Ey. Co., 10 App. 389. The facts from which a presumption is to arise, must be estab- lished by evidence as if they were the facts in the case. City of Chicago vs. Carlin, 141 App. 118. Presumptions are derived wholly and directly from the circum- stances of the particular case by means of common experience of mankind by the ordinary reasoning powers and without the aid of artificial rules of law. Sontag vs. O'Hara, 73 App. 432. CIRCUMSTANTIAL EVIDENCE 271 Inferences should be made upon eoniiiion principles of logic and be drawn from the evidence by probal)le deduction. Gannon vs. People, 127 111. 507. Value : — In General: Circumstantial evidence is frequently as satis- factory and not infrequently more satisfactory than direct evi- dence to establish the existence or occurrence of any fact, and in accordance with this hypothesis, all the affairs of men are con- ducted. Kennedy vs. Aetnae Ins. Co., 148 App. 273; Wilkinson vs. Aetnae Ins. Co., 144 App. 38. Circumstantial evidence is insufficient when, assuminsr all to be proved which the evidence tends to prove, some oilier hypothesis may still be true, for it is the actual exclusion of every other hy- pothesis which invests mere circumstances with the force of proof. Tiithill vs. Ey. Co., 145 App. 50. — What Considered: In determining the proper inferences from facts proven, regard must be had to the particular case, and the fa- cility afforded for explanation or contradiction. International Bank vs. Jones, 20 App. 125. — Closely Scrutinized: Circumstantial evidence, where there is no direct proof, should be critically scrutinized ; such evidence may be very satisfactory and may be very deceptive. Hunter vs. People, 52 App. 367. — Legal Test in Criminal Aetion: AVhat circumstances wnll amount to proof is not a matter of general definition ; the legal test is the sufficiency of the evidence to satisfy the minds and conscience of the jury. Carlton vs. People, 150 111. 181; Otmer vs. People, 76 111. 149. Absolute certainty is not essential to proof by circumstances. It is enough that the circumstances are such as to produce moral cer- tainty to the exclusion of every reasonable doubt. Carlton vs. People, 150 111. 181 ; Otmer vs. People, 76 HI. 149. See also Cotton vs. People, 250 111. 338; XI 111. Notes 1246, §173. In order to warrant a conviction of crime on circumstantial evi- dence, the circumstances taken together should be of a conclusive nature and tendency, leading, on the whole to a satisfactory con- clusion and producing, in effect, a reasonable and moral certainty. York vs. People", 262 111. 620; People vs. Eiseho, 262 111. 596; Par- sons vs. People, 218 111. 386; Dunn vs. People, 158 111. 586; Marzon vs. People, 173 111. 43. But testimony of facts and circumstances merely pointing to de- fendant's guilt are not sufficient. Cotton vs. People, 250 111. 338; Otmer vs. Peojile, 76 111. 149. (See Corpus Delicti.) — Chain Simile : Each material fact essential to constitute the defendant's guilt must be proven beyond a reasonable doubt. But these facts may be proven by evidence of circumstances, some of much and others of little weight, resting on the testimony of va- rious witnesses of different degrees of credibility and intelligence; and so, in the chain relied upon, there may be links, when, sepa- rately considered, about which there are reasonable doubts, but v.'hen the entire evidence is considered, each link strengthens every 272 CITIES other link, and thus there may be a complete chain of evidence, satisfying, beyond a reasonable doubt, of the guilt of defendant. Bressler vs. People, 117 111. 423; Carlton vs. People, 150 111. 181; Keating vs. People, 160 111. 480. It is not the rule that unless every fact in the chain of proof is established beyond a reasonable doubt the entire chain must fall, and the verdict be not guilty. People vs. See, 258 Ill.'l52. But the guilt of the accused must be so thoroughly established as to exclude every other reasonable hypothesis, and producing a rea- sonable and moral certainty that the accused and no one else com- mitted the crime. People vs. Eischo, 262 111. 596; People vs. York, 262 111. 620. CITIES See Corporations, Sidewalks, Ordinances, Records. CITIZENS See Citizenship, Contested Elections, Domicile, Residence. CITIZENSHIP See Domicile, Residence, Contested Elections. Presumption : In contest of election, person voting is presumed to be a citizen. Kexroth vs. Schein, 206 111. 80 ; Belirensmeyer vs. Kreitz, 135 111. 591; Dorsey vs. Brigham, 177 111. 250. Burden of Proof: Where one assumes to prove that another person is not a citizen of this state, the burden of proving a negative is necessarily im- posed upon' him who raises the question of citizenship. The one so questioning such right is not required to produce full and con- clusive proof, but is only bound to introduce such proof as ren- ders the existence of the negative probable, and when that is done, it is deemed sufficient to shift the burden of proof to opposite party. So where the proof shows that a person was born in a foreign country, and emigrated to this country after reaching manhood, this will be sufficient, prima facie, to show alienage, and to shift the burden of showing citizenship upon party asserting it. If such person were of American born parentage, though born abroad, that fact should be shown by him. Eexroth vs. Schein, 206 111. 80; Behrensmeyer vs. Kreitz, 135 111. 591. Certificate of Naturalization: — Impeachment : Where a certificate of naturalization is granted by a court of competent jurisdiction, evidence is not admissible, in a collateral proceeding, to show that it was improperly granted, or was obtained by false and perjured testimony or pro]3er prelimi- naries not had. Ackerman vs. Haenck, 147 111. 514; Behrensmeyer vs. Kreitz, 125 111. 591; People vs. McGowan, 77 111. 644. — Identity of II older: Parol evidence is competent to iden- tify the holder of a certificate, Avhere there is a misnomer. Behrensmeyer vs. Kreitz, 135 111. 591. CLOUD ON TITLE ' 273 — Non-Existrnce of Record: Tho cortifioates of the clerks of the county and circuit courts to the effect that there is no evidenc^e on the records of their courts that certain persons had been naturalized therein, are not competent evidence to disprove the fact of natural- ization. Any person who has examined an official record may swear and prove that a matter is not of record. Beardstown vs. Virginia, 81 111. 541. — Certificate of Mumcipal Clerk: The certificate of a municipal clerk, containing mere conclusions as to the citizenship of a per- son, and not purporting- to be issued by the authority admitting such person to citizenship, or to be an exemplification of any rec- ord, is not aflmissible. Schaefer vs. Wnnderle, 154 111. 577. Records of Naturalization: The record of the naturalization of an alien, like any other record of a court, imports verity. People vs. McGowan, 77 111. 644. Records of naturalization are in nowise different from other records. AVhen destroyed, secondary evidence of their contents may be given, the same as the contents of other records. Kreitz vs. Behreiismeyer, 125 111. 141. CITY DIRECTORY Admissibility : Party not bound by, and directory is inadmissible unless au- thority for statements contained therein is shown. Tichenor vs. Newman, 186 111. 264. CLOTHINa See Demonstrative Evidence. CLOUD ON TITLE See Title, Possession, Abstracts of Title. Defined : A cloud on a title is a semblance of a title either legal or equita- ble, which if valid, would affect or impair the title but which can be shown by extrinsic evidence to be invalid. Glos vs. People, 259 111. 332; Allott vs. Amer. Stl. Co., 237 111. 55. A cloud is defined as a semblance of a title, either legal or equi- table, or a claim to an interest in land appearing in some legal form, but which, in fact, is unfounded, or which it would be in- equitable to enforce. Harts vs. Kimball, 149 App. 526. A cloud on title is a semblance of a title, either legal or equi- table, or a claim of an interest in lands appearing in some legal form, but which is, in fact, unfounded. Dodsworth vs. Dodsworth, 254 111. 49. Ev. — IS 274 CLOUD ON TITLE If the instrument or proceeding is on its face plainly illegal or void, tliere is no cloud, and there is no occasion for the interference of a court to nullify or set it aside. Glos vs. People, 259 111. 382; Koby vs. S. P. Comrs., 215 111. 200. When a deed provides that the land shall revert to the grantor, her heirs and assigns, if grantee shall fail to pay the taxes, a claim of title by the heir of the grantor, based upon the forfeiture clause of the deed, and the redemption by him of the property from a tax sale, as shown by the tax judgment, sale and redemption record, is such a claim as constitutes a cloud upon the title of the grantee. Doilswoith vs. Dodswoith, 254 111. 49. Necessity of Proving- Title: Title in complainant must be proven, to authorize decree set- ting aside deed as cloud. Judson vs. Glos, 249 111. 82; Glos vs. Adams, 204 111. 546. While it is not necessary to prove title with same strictness as in ejectment, yet the proof must at least establish priina facie title. MoGowan vs. Glos, 258 111. 217. Color of Title: — Good Faith: Deed, to constitute color of title, must have been acquired in good faith. Winstanley vs. Meacham, 58 111. 97; Diekiuson vs. Breedeu, 30 111. 279. Good faith, within meaning of statute, does not require ignorance of an advei'se claim or defect of title, notice, actual or constructive is immaterial. Davis vs. Hall, 92 111. 86; Co. of Piatt vs. Godell. 97 111. 84; Cole- man vs. Billings, 89 111. 183. Good faith is a question of fact. Sexson vs. Barker, 172 111. 361; Dawson vs. Edwards, 189 111. 60; Baldwin vs. Eadeliff, 125 111. 376; Coward vs. Coward, 148 111. 268. Title is presumed to have been acquired in good faith. Taylor vs. -Hamilton, 173 Ilk 392; Davis vs. Hall, 92 J 11. 85; Stnmpf vs. Osterhage, 111 111. 82; Sexson vs. Barker, 172 111. 361. But presumption may be overcome by showing a design to de- fraud partv of better title. Sexson vs. Barker, 172 111. 361. Fraud, to overcome presumption of good faith, is not presumed but must be proven. McConnell vs. Street, 17 111. 253. Fact that small consideration was given for deed does not over- come presumption of good faith. Barton vs. Mayers, 183 111. 360. — Requisites a)id Sufficiency of Deed: Deed, to constitute color of title nnder statute, need only pui-port to convey title. Winstanley vs. Meacham, 58 111. 97; Dickinson vs. Breeden, 30 111. 279. Tax deed, to constitute color of title, must be signed by officer and properly acknowledged. Winstanley vs. Meacham, 58 111. 97; Dickinson vs. Breeden, 30 111. 279. Upon bill to set aside a tax deed as cloud on title, proof of possession by complainant's husband under a deed purporting to convey title, coupled with a devise of the pi'operty to complain- ant by her husband's will, is sufficient proof of title, there being no countervailing evidence. Glos vs. Ptacek, 226 HI. 188. CLOUD ON TITLE 275 Ownership and Possession: — Ncocssilij of IShowing Ownership: Ownership must be proven. llewes vs. Glos, 17u"lll. 4:56. Evidence must be sufficient to make prima facie case of owner- ship. Pease vs. Sanderson, 188 111. 597. — Parol to Show Ownership: On hearing of bill to remove cloud upon title, parol testimony by an attorney, that his client was the owner of the land involved, is wholly incompetent when objected to; but if admitted without objection from the adverse party, it will be sufficient, in connection with a deed of trust, and the trustee's deed to the client, in due form, to make a prima facie case of owner- ship. Glos vs. Randoliih, 138 111. 268. — Nrcff^sity of Sltoiviug Possession: ]\Iust be shown; deed alone is insufficient. Bieber vs. Porter, 242 111. 616; Bauer vs. Glos, 236 111. 450- Ry. Co. vs. Eseliner, 232 111. 210; Glos vs. Miller, 213 111. 22; Glos vs. Huey, 181 111. 149; Johnson vs. Ruling, 127 111. 14; XIV 111. Notes 164, §24. A deed from a third person to the complainant without proof of possession by complainant or his .grantor or further proof of title in such grantor is not sufficient to establish a prima facie title. McGowan vs. Glos, 258 111. 217. — Acts Constituting Possession: To constitute possession, there must be such appropriation of the land as will apprise the com- munity that the land is occupied and who the occupant is. Towle vs. Quaute, 246 111. 568. Any acts of dominion exercised over the property by party who claims title, which clearly indicate to others an appropriation of the lands for purposes for which it may ordinarily be used, are generally I'egarded as sufficient to show possession. Towle vs. Quante, 246 111. 568; LeSourd vs. Edwards, 236 111. 169; White vs. Harris, 206 111. 584; Gage vs. Hampton, 127 111. 87; McLean vs. Farden, 61 111. 106; Morrison vs. Kelly, 22 111. 609. Proof that complainant on the morning of the day the bill to remove cloud from title was filed, caused to be erected a post- and-wire fence around the lot, and placed a "for sale" sign thereon, giving the address of her attorney as agent, is sufficient to show possession. Glos vs. Davis, 216 111. 532. An allegation that complainant is in possession of premises is not sustained by proof that the land was being plowed by a sciuatter, who was not a tenant of complainant, nor in privity with her title. Glos vs. Goodrich, 175 111. 20. The fact that in the wire fence, erected by the holder of the legal title, around the land, gaps are left for a roadway, and between the edges of certain ponds, does not prevent his acts in cutting the paths for surveyors running the lines and putting up the wires, from constituting the taking of possession. Towle vs. Quaute, 246 "^111. 568. That agent of complainant leased the property prior to filing of bill, and after bill was filed complainant cut brush and let 276 CLOUD ON TITLE chickens run on land, is insufficient to show possession at time of liliug bill. Glos vs. Archer, 214 111. 74. That complainant built fence and went upon premises with an- other and executed to him a paper by which he was to hold pos- session, sufficient. Glos vs. Dyche, 214 111. 417. Possession is not shown by proof of recording of deed, and mak- ing entries in books with reference to the property ; nor is the seven years possession shown by proof that a house was built on the land by the holder of the color of title, which the witness had occupied for five years, where there is no other proof as to when the house was built, or whether any other person had ever occupied it. Glos vs. Wheeler, 229 111. 272. That complainant's husband visited the land at one time after she had paid seven years' taxes, and that son held disputed pos- session for four months, insufficient. Adams vs. Black, 183 111. 377. — Time of Possession: Question of complainant's possession is determined as of the time the bill was filed, and his acts sub- sequent to that time have no bearing on the matter. Towle vs. Quante, 246 111. 568. Possession at time of filing bill, claiming in good faith to be the owner under deed of conveyance, is sufficient. Glos vs. Gleason, 209 111. 517; Glos vs. Eaudolph, 138 111. 268; Glos vs. McKerlie, 212 111. 632; Glos vs. Archer, 214 111. 74. Proof that complainant, at time bill was filed, was in possession of the property, claiming in good faith to be the owner thereof under a deed purporting to convey the same to him, is sufficient j)roof of title. Glos vs. McKerlie, 212 111. 632. In suit to set aside tax deed as cloud on title, proof that com- plainant, at time bill was filed, was in possession of the property, claiming in good faith to be the owner thereof, under deed convey- ing same to him, is sufficient proof of title in complainant. Glos vs. Gleason, 209 111. 517; Glos vs. Randolph, 138 111. ::68. To sustain allegation of title, complainant need only prove that at time of filing bill he was in possession of the property, claiming in good faith to be the owner thereof under a deed purporting to convey same to him, which makes a prima facie case of title. Waishowsky vs. Glos, 251 111. 377. Proof of possession up until two years prior to filing of bill, in- sufficient. Glos vs. Kemp, 192 111. 72. — Parol to Show Possession: A v.'itness may testify to fact that a party was or is in possession of a tract of land, without stating the facts which go to show possession ; and the other party, on cross examination, may call for the facts upon which witness bases his testimonv, or as to facts constituting possession. Knight vs. Knight, 178 111. 553; Fisher vs. Benneholf, 121 111. 426. Where land is held adversely by different occupants, the identity CLOUD ON TITLE 277 and continuity of their possession, in order to sliow a limitation, may be shown by parol evidence. Weber vs. Anderson, 73 111. 439. Transfer of possession of land may be proven by parol. Kich vs. Naffziger, 255 III. 98. — Actual Possession: Where one is in actual possession of a part of a tract of land, claiming to be the owner of all of it, the paper title under which he claims is evidence of" the extent of his possession. Poole vs. City of Lake Forest, 238 111. 305. If it appear that complainant is in actual possession of the land, that will be sufficient proof of title to authorize the relief sought, in absence of proof of title in someone else. Gage vs. Schmidt, 104 111. 106. Vacancy of Property: It is essential that the o^vner show either that he is in possession or that the property is vacant and unoccupied. Bieber vs. Porter, 242 111. 616; Glos vs. ITiiey, 181 111. 149; Glos vs. Randolph, 133 111. 197; Johnson vs. Haling, 127 111. 14. Must be vacant at time bill is filed. Glos vs. Miller, 213 111. 22; Johnson vs. Ruling 127 111. 14. Proof of vacancy some years before bill was filed, insufficient to show vacancy at time bill was filed. Glos vs. Miller, 213 111. 22. It not being presumed that property remained vacant up to time bill was filed. Glos vs. Perkins, 188 111. 467. Admissions : A person holding conveyance of land accepted a quitclaim deed containing, after the description of the property, the clause, "Being the same property described in deed heretofore made by us to C. W. C. dated, This deed is made to clear away certain objection made to said last named deed, or to abstract thereof, and is made to confirm little of said grantee, claimed under such deed:" Held, that grantee in later deed admitted by his acceptance of it that he claimed title under C. W. C, and under a deed made by the grantors to C. W. C, and that such quitclaim deed was procured by the grantee merely in confirmation of such title. Sawyer vs. Campbell, 130 111. 186. Failure of complainant to introduce deed alleged to be cloud, in evidence is not fatal to the decree, where the bill specifically described the deed, the date when recorded, its document number and charges such deed to be null and void, and the answer of the defendant is such as amounts to an admission of the existence of the deed as described in the bill. Glos vs. MeKerlie, 212 111. 632. Presumptions as to Title: Every presumption will be indulged in favor of holder of legal title, and as against him no presumption in favor of holder of color of title will be drawn. Towle vs. Quante, 246 111. 568; LeSourd vs. Edwards, 236 111. 169; White vs. Harris, 206 111. 584. 278- CLOUD ON TITLE Proof of possession with claim of ownership, raises presumption of title. ' ■■'! •' Glos vs. Ptaeek, 226 111. 188; Glos vs. Huey, 181 111. 149. Deed, coupled with possession, raises presumption of title. McCrauej vs. Glos, 222 111. 628. A tax deed is prima facie evidence of the sufficiency and validity of the process upon which a sale was made, and that the sale was conducted in manner required by law. Tifft vs. Greene, 211 111. 389. Burden of Proof: The burden of proving an allegation, in bill to remove cloud from title, that complainant was in possession of premises at time bill was filed, is on complainant, and such proof is essential to grant- ing of relief prayed, Glos vs. Archer, 214 111. 74; Glos vs. Kemp, 192 111. 72; Glos vs. Beekiiiaii, 1S.3 111. 158; Glos vs. O 'Toole, 173 111. 366; Glos vs. Eandolph, 133 111. 197; Stannard vs. A. E. Ey. Co.. 220 111. 469; Johnson vs. Huling, 127 111. 14; XIV 111. Notes 169, §70. In suit to remove trust deed, presumption of non-payment is raised by production of deed and note, and burden of proving payment is on complainant. Douglas vs. Pfeiffer, 46 111. 102. Admissibility of Quit Claim Deed: On bill to cancel tax deed, quitclaim deed from holders of tax deed, not parties to suit, described as "unknown owners," and in default, not admissible. Brinsen vs. Arnold, 236 111. 495. Admissibility of Foreign Deeds: A deed executed in sister state and acknowledged before a notary public in that state, the certificate of acknowledgment being in due form under our statute, and authenticated by the seal of the notary, is properly admitted in evidence in action to remove cloud from title, without certificate that acknowledgment was in conformity with the laws of such sister state. Glos vs. Gerrity, 190 111. 545. Weight and SuiRciency: Under bill praying for cancellation of contract for sale of land, as cloud on vendor's title, which contract provided that a mer- chantable abstract should be furnished, proof by such vendor that he furnished an abstract made by the recorder of deeds, together with testimony of a number of real estate men that abstracts fur- nished by such recorder were merchantable, is sufficient to warrant a decree, in absence of counter testimony. Harper vs. Tidholm, 155 111. 370. Proof of deed, as described in bill, together with proof of pos- session in complainant since date of deed, sufficient. Brinson vs. Arnold, 236 HI. 495. If complainant proves a decree in a burnt records proceedings, establishing title in fee in certain persons, and shows that he has succeeded to their title by a regular chain of conveyances, such COLOR OF TITLE 279 proof is siififieient to justif}^ a decree removini? a tax deed as a cloud, even tliough there is no prooi' of title prior to that time. Ellison vs. Glos, 248 111. 275. C. 0. D. Judicial Notice: Courts will not take judicial notice of meaning of term. A. M. U. Ex. Co. vs. Wolfe, 79 111. 430. Admissibility of Evidence: — Parol: Competent to show meaning of term. Tailoring Co. vs. Adams Exp. Co., 158 App. 374 ; Ainer. Express Co. vs. Lesem, 39 111. 313. But custom as to waiving payment before delivery l)etween car- rier and shipper is not admissible. Amer. Express Co. vs. Lesem, 39 111. 313. CODEFENDANT See Accessories, Accomplices, Admissions and Declarations, Confessions, Corroboration, Credibility, Witnesses. CODICIL See Wills. CO-HABITATION See Adultery, Bigamy, Criminal Conversation, Marriage, Divorce. COLLUSION See Conspiracy, Fraud. COLOR OF TITLE See Title, Good Faith, Presumptions, Cloud on Title, E.jegt- MENT. Defined: Any instrument indicating an intention to pass title to lands, of whicli a description is given, from one party to another, gives color of title to the lands described. For some reason, such an instru- ment often fails to effect that intention, and passes only the color of title or semblance of title. It makes no difference whether tlie instrument fails to pass a title because the grantor had none to 280 COMMUNICATIONS convey, or had no authority in hiw or in fact to convey one. Inas- much as the instrument fails to pass an absohite title, for the reason that the grantor was not possessed of one or more necessary requisites, it gives the semblance or color only of what its effect would be if they were not wanting. McCagg vs. Heacoek, 34 111. 476; Wells vs. Wells, 246 111. 469; Lewis vs. Pleasants, 143 111. 271; Brooks vs. Bniyn, 35 111. 392; Dick- enson vs. Breeden, 30 111. 279; XI 111. Notes 75. § 117 et seq. A general devise will not constitute color of title under limita- tion law. Will must furnish a description to identify the land. Peabody vs. Burri, 255 111. 592. Tax Deeds: — Admissibility to Shoiv: A tax deed is prima facie evidence that the sale was conducted in the manner required by law, and affords presumptive proof in the first instance of the sufficiency and validity of the process upon which the sale was made, which in the basis of the tax deed, and the prima facie case made by the production of the tax deed must be overcome bv proof. Tifft vs. Greene, 211 111. 389; Glos vs. IMnlcahy, 210 111. 639; Gage vs. Gentzel, 144 111. 450. (See Tax Deeds.) COMMUNICATIONS See Privileged Communications. COMPARISON OF HANDWRITINa See Handwriting. COMPETENCY OF EVIDENCE For One Purpose: Evidence, if competent for any purpose, must be admitted. Mighell vs. Stone, 175 111. 261. Competent evidence should be admitted, although it is insuffi- cient to prove a complete defense. B. & 0. S. W. Ky. Co. vs. People, 156 111. 189. As to One Party: So, evidence competent as to one party, although incompetent as to a co-party, is admissible. Con. Ice Mach. Co. vs. Keifer, 134 111. 481. The objecting party may have such evidence excluded from the jury by asking instructions to that effect. People vs. Hageuow, 236 111. 514; People vs. Casey, 231 111. 261; Central Ey. Co. vs. AUmon, 147 111. 471; Purdy'vs. People, 140 111. 46. COMPETENCY OF WITNESSES See WiTNSEssES, Contradiction and Sustaining Witnesses, Credibility, Husband and Wife, Infants, COMPROMISE AND SETTLEMENT 281 COMPOSITION WITH CREDITORS See Compromise and Settlement, COMPROMISE AND SETTLEMENT See Accord and Satisfaction, Parol, Release, Arbitration AND Award, Receipts. PRESUMPTIONS: Receipts • A written receipt in full is prima facie evidence that on date of same, parties made a full settlement and adjustment of all their accounts. Burus vs. Middleton, 104 111. 411; Ligare vs. Peacock, 109 111. 94. A receipt in full of all demands is prima facie evidence of the payment of all notes and claims existing at the time receipt is given. Marstou vs. Wilcox, 2 111. 270. And including that due on notes. Connelly vs. Sullivan, 119 App. 469. — Guardiaih and ^Yard: But a receipt given by a ward to his guardian, in full of moneys coming to the ward, when shown to have been given without an accounting, in fact, at the time, and the ward denying any settlement, is entitled to but little weight as evidence of a settlement. Bennett vs. Hanifin, 87 111. 31. Checks : When parties have a settlement of their accounts, and a check for the amount found due from one to the other, which recites that it is in full, is accepted and afterward paid, the presumption of fact is strong that all items properly chargeable at the time are embraced in the settlement. Eobinson vs. Webb, 73 App. 569. A creditor to whom a check is sent, reciting that it is in full payment of a claim the amount of which is in dispute, cannot receive it without the assent of the debtor in part payment only, but his receipt thereof and use of the check will constitute a full satisfaction of the claim. Ostrander vs. Scott, 161 111. 339. A receipt contained in a check which, upon its face, is a payment in full of all demands to date, enclosed in a letter stating that it is in full of account and followed by a subsequent letter to return it if the creditor does not wish to accept it in full settlement, cannot be contradicted by showing that the amount was received only in part payment wdiere account is unliquidated and subject of bona fide dispute. Ostrander vs. Scott, 161 111. 339 ; Critchell vs. Loftus, 100 App. 196 ; Enmsev vs. Barber, 78 App. 88; Mexican Soap Co. vs. Clark, 72 App. 655; Off. vs. Inderrieden Co., 74 App. 105; Worth Coal Co. vs. Parker Co., 157 App. 199; Kepublic Steel Co. vs. Sturges, 181 App. 304. But a check given by a vendee and accepted by the vendor, con- 282 COMPROMISE AND SP:TTLEMENT taining these words, ''To balance account coal received from you to date," does not show an accord and satisfaction, inasmuch as the check only purported to pay in full for ' ' coal received. ' ' Olesoii vs. Waljash Coal Co., 126 App. 253. Complete Settlement: — Fact of Settlement Proven: A strongs presumption arises that a settlement of accounts between parties embraces all the items each has against the other that are due, and this presump- tion is so strong that it devolves upon party asserting contrary to prove that an item omitted was not due, or that it was omitted by consent of the parties, or by accident and unintentionally by the party claiming it. Wtraubher vs. Mohler, 80 111. 21. This presumption applies only where a general settlement is proven and which purported to include all the demands and counter demands between the parties. Smith vs. Smith, 45 App. 215. An adjustment and settlement of accounts between parties afford evidence that all items properly chargeable at the time were in- cluded. This is not conclusive but it would require clear and convincing proof that such items were unintentionally omitted by the party subsequently claiming to recover them. Bull vs. Harris, 31 111. 487; Hodge vs. Boynton, 16 App. 525, A creditor asserting that a particular item of indebtedness was not included in a general settlement between the parties -may over- come the presumption that it was included by proving that it was not due at the time of the settlement. Beebe vs. Smith, 194 111. 634. It is proper for the defendant who has promised to pay plaintiff's bill, to testify that at the time he made the promise, he had not discovered errors in the bill, which he afterwards discovered. Schnell vs. Schlurnitzer, 82 111. 439; Follansbee vs. Parker, 70 111. 11. — Partncrsliip: Where it appeared that A and B had been carrying on a partnership business and that A, after having dis- posed of his interest, purchased the interest of B, for which he agreed to pay a certain sum, lield, that in the absence of proof to contrary, it would be presumed that all their former accounts were settled, or at least merged in the new agreement. Norniau vs. Huddlestou, 64 111. 1. — Composition Agreement: In a composition agreement with creditors if the deed is under seal and contains an absolute release of all debts and liabilities for a consideration tit en paid by the debtor, the creditor cannot be allowed to show by parol evidence, in opposition to the terms of the deed, that a particular debt was not intended to be and was not included in its provisions. Meyer & Co. vs. McKee & Co., 19 App. 109, Executory agreement, parol is competent to show a non-compli- ance witli the conditions in composition deed hy the debtor. iMeyer & Co. vs. McKee & Co., 19 App. 109. BURDEN OF PROOF : In General: Where fact of settlement is established, the burden of proof is on partv assailing. Beebe vs. Smith, 194 111. 634; Straubher vs. Mohler, 80 111. 21, COMPROMISE AND SETTLLEMENT 283 And must establish his position l)y a clear preponderance oi' the evidence. MeElhaney vs. People, 1 App. 550. By Surety: A eoiuproiuise may be proven by a surety, who is a stranger to the acts done by his principal, in effecting the couipromise of an obligation, by less testimony than would be necessary on the part of the principal to prove the same fact. Leis'li vs. Hodges, 4 111. 15. Subject Matter: General words of release are restrained, in effect, by the recitals contained in the instrument as applied to the subject matter. An agreement cancelling a prior contract and adjusting mat- ters growing out of same, and providing that "from and after tliis date no indebtedness exists in favor of either of the parties," against the other, wall not be held to release a promissory note for money loaned, where the loan did not grow out of the cancelled contract and was not mentioned in the release, the recitals of which were limited by their terms, to matters involving the con- tract. Bassett vs. Lawrence, 193 111. 494. PROMISSORY NOTES. The giving of a note, although it is evidence for the consideration of the jury, is to be weighed in the light of all the surrounding circumstances, — is not, of itself, unexplained, evidence of a settle- ment of all demands between the parties to such an instrament, anterior to the date of the note. Eozeiicrantz vs. Mason, 85 111. 262; Crabtree vs. Eowand, 33 111. 423; Ankeny vs. Pierce, 1 111. 262; Cf. Phy vs. Clark, 35 111. 377. But the question of the intent of the parties, in such case, is one of fact, to be determined by the jury from all the evidence relat- ing to the transaction. Whelloeh vs. Berkley, 138 111. 153. Where a settlement is relied upon as a foundation for an action, evidence of the transaction compromised is proper to show the foundation of and circumstances surrounding the agreement to settle. Frank vs. Heaton, 5G App. 227. AGREEMENT. An agreement covering same point as in issue is admissible as showing settlement. Murjihv vs. Lever, 147 App. 460. PRIOR ACTION. In absence of countervailing evidence, a plea of payment is established by evidence that plaintift"s demand was interposed liy him as a set-off in a former action brought by the defendant's prin- cipal, which w-as settled in full and discontinued by stipulation of the parties, without costs. Case vs. Phillips, 182 111. 187. But the discontinuance of a former suit, by agreement, upon the making of a contract for settlement, does not bar a subsequent suit on same demand, where it appears the contract was never 284 COMPROMISE AND SETTLEMENT carried out and plaintiff has received nothing in satisfaction of his claim. Jacobs vs. Marks, 183 111. 533. OFFERS OF COMPROMISE. Competency: — In General: A proposition made by one party to the other simply for the purpose of effecting a compromise is not binding unless accepted, and cannot be shown on trial as evidence of an admission of facts. Pauling vs. Hovvser, 63 IJl. 312; Eockafellow vs. Newcomb, 57 111. 186; Barker vs. Bushnell, 75 111. 220; Matliewson vs. Ferris, 72 App. 684; G. P. Assn. vs. Eio'rdan, 61 App. 457; Harrison vs. Trickett, 57 Ajip. 515; Rollins vs. Duffy, 18 App. 398; McKinzie vs. Stretch, 53 App. 184; C. C. C. & St. L. E. E. Co. vs. McGuire, 137 App. 31; XI 111. Notes 496, § 160. But may be admissible as waiver of conditions. Downs vs. Mich. Com. Ins. Co., 157 App. 32. Any evidence the purpose and effect of which is to show the admission of liability by offers of compromise is incompetent. Milhim vs. Hawkeye Ins. Co., 171 App. 262. • — Bastardy Suits: Such rule is as applicable to bastardy suits as any other. Gelm vs. People, 87 App. 158; Miene vs. People, 37 App. 589. — Criminal Offense: The written admission of a party accused of crime, made with view to compromise matter with injured party, on basis that he should not be prosecuted, is not admissible as evi- dence on indictment for such off'ense. Austin TS. People, 51 111. 236. — Letters: Letter containing offer of compromise are inad- missible. Harrison vs. Trickett, 57 App. 515. And letters written by attorneys of party, with view to com- promise, are incompetent. O'Mara vs. Coal Co., 154 App. 321. — Voluntary Admissions: The voluntary admissions or state- ments of fact of a party to a suit are competent as evidence against him even if made during an effort to compromise. Ashlock vs. Linder, 50 111. 169; Eobbins vs. Butler, 24 111. 387; Thorn vs. Hess, 51 App. 274; Getsleman vs. Schuman, 22 App. 167. Admissions of independent facts, though made in negotiating compromise, are competent. Kuhn vs. Williams, 124 App. 390 ; Hook vs. Bunch, 180 App. 39. Independent admissions, made during negotiations to compro- mise, are competent unless expressly stated made in confidence or without prejudice. Domma vs. Hollenbach, 142 App. 439. AS CONSIDERATION OF DOUBTFUL CLAIM. To sustain a compromise of a doubtful claim, where it later turns out that the promisee is not liable for or does not owe the claim, it is indispensable that the controversy should be honestly inaugu- CONCLUSIONS OF WITNESSES 285 rated and that perfect fairness and good faith should characterize the conduct of the party seeking to uphold the compromise agree- ment. Kronmeyer vs. Buck, 258 111. 586. And when settled and compromised in good faith and without fraud or oppression such settlement constitutes a good considera- tion for the promise to pay money or other valuable thing. Pyle vs. Murphy, 180 App. 18, CONCLUSIONS See Conclusions of Witnesses, Legal Conclusions, Expert AND Opinion. CONCLUSIVE EVIDENCE See Former Adjudication, Former Judgment, Legislative Acts and Journals, Service, Records. CONCLUSIONS OF WITNESSES See Affidavits for Continuance, Legai^ Conclusions, Title. In General: Conclusions of witnesses are incompetent. Telford vs. Howell, 220 111. 52; Hohen vs. C. P. & St. L. Ey. Co., 152 111. 223; Pickhani vs. I. I. & N. Co., 153 App. 281; Aetitus vs. Coal Co., 150 App. 498; Seed Co. vs. Moore, 142 App. 615; XII 111. Notes 521, § 366. Especially where based on hearsay. Eafter vs. Chi. City Ey. Co., 139 App. 81 ; Sheppleman vs. People, 134 App. 556; Haldeman vs. Scbuh, 109 App. 259. Conclusions of witness as to matters of fact which it is the prov- ince of the iury to try, are inadraissilile. Adams vs. First M. E. Church, 251 111. 268. But conclusions are properly admitted where facts are inca- pable of direct presentation. Witnesses not experts are allo^yed to express opinions when the subject matter to which the testimony relates is such, in its nature, that it cannot be reproduced and described to the jury precisely as it appeared at the time. W. Chi. St'. Ey. Co. vs. Fishman, 169 111. 196; Carter vs. Carter, 152 111. 434; Salem vs. Webster, 95 App. 120. It is the general rule that a witness must testify to facts, and not his opinions. But when the witness testifies to facts showing his opinion was the only conclusion that can be drawn from the facts, the error in allowing him to state that opinion will be harm- less, and atford no ground for reversal. Where the inference to be drawn from a given state of facts is not clear or certain, a jury, in whose liearing the facts are re- cited, may be influenced by the opinion of a witness who tells them his conclusions therefrom. It is otherwise where only one conclu- 286 CONCLUSIONS OF WITNESSES sion, and that an obvious and necessary one, suggests itself as soon as the facts are presented. Central liy. Co. vs. Allnion, 147 111. 471. The statement of a fact by a uilnrss, Vv-hich he ascertained through the sense of hearing, is not tlie statement of a mere matter of opinion, Init is a statement of a conclusion readied directly from an operation of the sense of hearing and is admissible in evidence. Ogdou vs. People, 134 111. 599. If motorman has stated what he did to avoid collision, it is proper to refuse to permit him to answer the question, "Do you know of anything you could have done, that you did not do, to avoid the collision there?" Springfield Ey. Co. vs. Puntenny, 200 111. 9. Nor is question proper as to "AVhether he used all the means in his pow'er to stop the car.'' Springfield Ey. Co. vs. Welsch, 155 111. 511. Questions calling for a conclusion not error where counsel and witnesses have assumed such conclusion. A. E. & C. Ey. Co. vs. Gary, 123 App. 163. Conclusion of witness as to what was consideration for delivery of bond is incompetent. Lucas vs. Beebe, 88 111. 427. Question as to w^hether accused had violated ordinance calls for a conclusion. People vs. Ne\Ybold, 260 111. 190. Questions calling for conclusions of law are improper. McGuire vs. Winston, 157 App. 222. Question as to wdiy money Avas paid to party calls for conclusion. Crone vs. Crone, 70 App. 294. Question as to wdiy party's name was over door of saloon calls for conclusion. Crone vs. Crone, 70 App. 294. Question as to wdiat contract means calls for conclusion. McGuire vs. Winston, 157 App. 222. That defendant did not object to bill when presented is inad- missible, as stating a conclusion. Witness may properly state what defendant said and did when bill was presented. Harrison vs. Trickett, 57 App. 515. Question as to what services witness was to perform for salary paid is objectionable as calling for a conclusion. Williard vs. P. C. C. & St. L. Ey. Co., 155 App. 410. Statements that copy of report was sent is a conclusion. E. A. & S. Tr. Co. vs. Hencli, 132 App. 535. Statements of witness that report made to mercantile company was false is a conclusion. Frezinski vs. Newborg, 43 App. 506. Testimony as to whether examination was sufficient to determine safety is a conclusion. Aetitus vs. Coal Co., 150 App. 497. Opinion as to what constitutes necessaries is inadmissible. Compton vs. Bates, 10 App. 78. Testimony that anything that would touch object would throw it down is not a conclusion. C. & A. E. Co. vs. O'Brien, 34 App. 155. CONCLUSIONS OP WITNESSES 287 Statement that fences were not sufficient to liold stock, inad- missible. C. & A. E. Co. vs. O'Brien, 34 App. 155. Testimony it was not a party's duty to do a certain thing is a mere conclusion. Brooks vs. C. W, & V. Coal Co., 234 111. 372. Due Cai-e: Opinion as to whether either party exercised due care is inad- missible. 8pringfiekl vs. Cole, 16G 111. 22; Pfau vs. Eeynolds, 53 111. 212. Testimony that party was proceeding carefully, inadmissible. Litchfield vs. Anglin, 83 App. 55. Or that switchman would perform duty safel}'. Biitchelor vs. Union Stock Yards, 88 App. 395. Or that party was not guilty of negligence in attempting to board train. C. C. C. & St. L. Ey. Co. vs. Curtis, 134 App. 565. Or in leaving awning down. McMalian vs. Swain, 10(3 App. 392. Or safe distance to stand from railroad track when train was passing. C. & N. W. Ey. Co. vs. Moranda, 108 111. 576. ' Defect: Question as to "how could it be possible to discover defect" in- admissible as calling for conclusion. Alton vs. Gre'en, 112 App. 439, Question as to how person would have stepped over object with- out knowing it was near, inadmissible and calling for conclusion. Amer. Express Co. vs. Eisley, 77 App. 476; Burke vs. Wrigley, 43 App. 367. Agency : Testimony as to whether person was another's agent is a mere conclusion. Gilmore vs. Farmer, 156 App. 70; El. Dev. Co. vs. Iron Works, 153 App. 313. Or as to whether or not agent had authority to do certain act. MoNellis vs. Aetna Ins. Co., 176 App. 575. Temperature : Testimony that temperature of house was cold, is admissible though not based upon thermometer. Dalims vs. Moore, 110 App. 223. As to Admissions or Conversations of Another: AVitnesses should state facts and not mere inference and con- clusions ; and where witness, in testifying in respect to alleged admissions of another, if he be unable to give the words, language or the substance of it, he should not testify at all ; the witness can- not l)e permitted to give a mere conclusion of his own when the conversation or declarations from which the conclusion is drawn have passed from his mind. Helm vs. Cantrell, 59 111. 524. Witness should not be permitted to state "his inference from what was said, or his understanding." Natl. Svrup Co. vs. Carlson, 155 111. 210; Hewitt vs. Clark, 91 HI. 605. 288 CONCLUSIONS OF WITNESSES Evidence that witness "took" certain things from what person said, inadmissible. Bragg vs. Geddes, 93 111. 39. Understanding between witness and agent is mere conclusion. Conversation must be stated in words or substance. Gnibcy vs. Natl. Bank, 35 App. 354. On foreclosure by personal representative of mortgagee, where witness has testified that defendant made statement he was trying to borrow a certain amount to pay the mortgage indebtedness, defendant, under pretense of giving liis own version of conversa- tion, cannot be permitted to state his conclusion as to what he considered he was owing on the mortgage at the time, and thus indirectly testify as to alleged payments claimed by him to have been made to mortgagee before his death, but not credited on the note. Telford vs. Howell, 220 111. 52, Existence of Road: When existence or non-existence of a public road is in issue, witnesses should not be permitted to answer the direct question whether there is or was a public highway in that location. Drainage Dist. vs. Commissioners, 199 111. 132. Existence of Street: In action against city for injuries, testimony by witnesses that street "was a public street" are mere conclusions. Champion vs. City of Deeatnr, 151 App. 161. Undue Influence and Testamentary Capacity: See Wills. Age: In contest of election, witness cannot testify as to what the family records show his age to be. Kreitz vs. Behrensmeyer, 125 111. 141. (See Age.) Cruelty : In action for false imprisonment, witness should not be per- mitted to state that treatment of plaintiff was indecent and brutal. Kendall vs. Lindberg, 69 111. 355. Insolvency : A general offer to prove insolvency is offer to prove conclusion. Martin vs. Hertz, 224 111. 84. Relating to Personal Injuries Generally: Statement that there was plenty of time to do a thing is not a mere conclusion. Casey vs. Kelly Co., 240 111. 416. A railroad company may prove facts which it regards as render- ing the condition at a particular crossing reasonably necessary for the improvement of its road, but it cannot prove, by its road- master, the conclusion that such was the case, and that the use- fulness of the highway was not necessarily impaired. Illinois Sonthern Ey. Co. vs. Hayer, 225 111. 613. Where the semaphore at a railroad crossing is torn down by the collision which caused the death of plaintiff's intestate, witnesses who passed over the crossing frequently that night, may testify that the semaphore was in good order and working all right prior CONCLUSIONS OF WITNESSES 289 to the collision, such testimony being properly regarded as state- ment of facts rather than conclusions. C, & A. E. E. Co. vs. Vipond, 212 111. 199. Where a witness has testilied fully as to what various servants of defendant were doing at time of plaintiff's injury, the question, "What was the common object of all these people, then, — what were they aiming to do?" calls for a conclusion, and an objection thereto is properly sustained. American Car Co. vs. Hill, 226 111. 227. A question as follows, ''Was it in plain sight?" does not call for a conclusion. Mygreen vs. Smith, 162 App. 276. Permitting a witness to state that he believed himself to be in a perilous situation at time he discovered defendant's train approach- ing is not harmful error, where he had previously stated to the jury all the facts within his knowledge, surrounding the trans- action. I. S. Ey. Co. vs. Hamill, 226 111. 88. Where the question is whether a conductor, by threats or force, compelled a passenger to alight from a moving train, whereby he was injured, it is not proper for such passenger to testify, in his own behalf, that he got off because "he was in danger," that being merely the conclusion of the witness. Hoelm vs. C. P. & St. L. Ey. Co., 152 111. 223. (See Experiments.) Existence of Oral Contract: The proper proof of an oral contract should consist of the testimony of witnesses who are able to state, either literally or in substance, the language used by the parties in forming their con- tract, and it then becomes a question of law whether any con- tract was formed, and what are its terms. The testimony of a wit- ness, giving his understanding or version of a contract, without attempting to state the language used by the parties, in forming it, is merely the testimony as to legal conclusions, and is therefore improper, and can have no legitimate tendency to prove what the real contract was. Fisher vs. Green, 142 111. 80. Authority : A question as to who had authority to make promises or assur- ances, calls for conclusion and is improper. Hoffman vs. Tosetti Brew. Co., 167 App. 291. As to Misrepresentations: Conclusion of witness that misrepresentations were made is incompetent. Ins. Go. vs. Gruner, 112 111. 68. As to Employment: In action by attorney for fees, his conclusions as to his being employed are inadmissible ; only facts relating to his retainer may be stated by him. Town of Evans vs. Dickey, 117 111. 291. The question as follows is incompetent as calling for a conclu- sion, "AVhat services were you to perform for salary paid you?" Williard vs. Ey. Co., 155 App. 410, Ev.— 19 290 CONCLUSIONS OF WITNESSES Indebtedness : Evidence that party is indebted is mere conclusion. Campbell vs. Eoss, 86 App. 356; Hollst vs. Bruse, 69 App. 48. Testimony of book-keeper, as to state of account between parties, based on books of one only, is incompetent. Purcell vs. Henry, 67 App. 256. A witness is incompetent to state who was liable for a doctor's bill, as it is a question of law and not of fact. Quiiicy G. & E. Co. vs. Bauman, 104 App. 600. Fright of Animals: AVhether or not a horse has become frightened or shows fright is a fact and not the statement of a conclusion. Ward vs. Meiidith, 220 111. 66. Results of Calculations: Testimony of book-keeper or accountant is admissible to show footing of column of figures or the results of any calculation from a complicated set of figures which cannot be readily carried in mind of jury, where calculation is purely mathematical. Estate of Smythe vs. Evans, 209 111. 376; Smith vs. Peoria County, 59 111. 412; Guarantee Co. vs. M. B. & L. Co., 57 App. 254; Doyle vs. I. C. E. E Co., 113 App. 532. Value of Time: In action for personal injuries received by being struck by ear, testimony of plaintiff as to what his time was worth, during period he was unable to work, is not a conclusion, and is competent. Schlumbreeht vs. Chi. City Ey. Co., 153 App. 254. Profits : Statement that the profits of a sale of realty are a certain sum is not the statement of a mere conclusion but is proof of the fact. Grossky vs. De Voney, 179 App. 53. Possession : Question to a witness who had previously rented premises, and whose term had expired, whether he was in possession at time of expulsion of plaintiff, is properly excluded as calling for legal con- clusion, especially if he had already detailed the facts in relation to occupancy. Huftalin vs. Misner, 70 111. 55; Cf. Knight vs. Knight, 178 111. 553. Sewerage Conditions: It is error to allow a witness in condemnation case to state that sewer system of certain town was low and large enough to take care of sewage from subdivision in which condemned land was located, where it is not shown he made any investigation or possessed knowledge qvialifying him to speak. C. & M. E. Ey. Co. vs. Mawman, 206 111. 182. Consent to Terms of Contract: AVitness should not be asked if the company employing him had ever consented to be bound bv the conditions in a bill of lading, 111. Match Co. vs. C. E. L & P. Ey. Co., 250 111. 396. Use of Partnership Funds: Testimony that money obtained by a partner "was used in the firm business" is not objectionable as a conclusion. Funk vs. Babbitt, 156 111. 408. Ability to Act: Question put to motorman who ran the car, as to whether he had "used all the means and all the power" he had to stop the car, and CONDONATION 291 prevent the injury, is improper, as being suggestive and calling for conclusion of witness. Springfield Ey. Co. vs. Welsch, 155 111. 511. Evidence that person had opportunity to fasten appliance after witness called attention to approaching storm, is not a conclusion. Casey vs. Kelly Co., 240 111. 416. I Testimony admissible as to whether witness had sufficient time to walk certain distance. 0. & M. By. Co. vs. Brown, 49 App. 40. Whether driver could have stopped team in time to avoid col- lision, inadmissible. Brinks Express Co. vs. Kinnare, 168 111. 643. Question as to whether passenger had opportunity to leave train, improper. 1. C. R. E. Co. vs. Blye, 43 App. 612. Testimony as to whether deceased could have gotten off bridge at any other place than the end is evidence of a fact. Montage vs. C. C. T. Co., 150 App. 288, Condition of Goods: Testimony that shipment of potatoes was in bad condition upon receipt of same is not a conclusion.- I. C. E. E. Co. vs. Foulks, 191 111. 57, Pain and Suffering-: Appearance of another as to pain and suffering may be stated by non-expert. C. P. & St. L. Ey. Co. vs. Priest, 190 111. 592; Gardner vs. Paulson, 117 App. 17; Girard Coal Co. vs. Wiggins, 52 App. 69. Vision : Testimony as to how far object could be seen proper, without witness having actually measured or made an estimate. I, C. R. E. Co. vs. Swisher, 53 App. 411; Chi. City Ey. Co. vs. Rohl, 118 App. 322; XII 111. Notes 523, §376. Where witness was present at time of accident, may state how far he could see, although no actual tests were made. Chi. City Ey. Co. vs. Hagenback, 228 111. 290. But question as to possibility of motorman seeing passenger alighting from rear of car at night is improper, Chi. City Ey. Co. vs. Lowitz, 119 App. 360. Or whether deceased could have seen train had he looked. C. N. & St, P. Ey. Co. vs. O 'Sullivan, 143 111. 48. Hearing-: Testimony that if signals had been given, witness would have heard them is admissible. C. C. C. & St. L. Ey. Co. vs. Beard, 106 App. 486 ; I. C. E. E. Co. vs. Slater, 39 App. 69. But not whether deceased could have heard engine blowing off steam, where jury have full facts. C. N. & St. P. Ey. Co. vs. O 'Sullivan, 143 111. 48. Testimony that witnesses did not hear shouting is negative iii. character. Admissibility of such testimony depends upon circum- StclIlCGS ' Lyons vs. Chi, City Ey. Co., 258 111, 75. CONDONATION See Divorce, 292 CONDUCT CONDUCT See Confessions. CONFESSIONS See Accomplice. DEFINITIONS. In General: A confession is a voluntary declaration by a person charged with crime, of his agency or participation in the crime, and not merely a declaration or admission of facts criminating in their nature tending to show guilt. IMichaels vs. People, 208 111. 603; Johnson vs. People, 197 111. 48. A confession, in its legal sense, means an acknowledgment of guilt. McCann vs. People, 226 111. .562. It is not equivalent to statements, declarations or admissions of facts criminating in their nature, or tending to prove guilt. McCann vs. People, 226 111. 562; Michaels vs. People, 208 111. 603; Johnson vs. Peojile, 197 Jll. 48. It is limited in its meaning to the criminal act. Michaels vs. People, 208 111. 607. Implied : An indirect or implied confession is one that may be inferred from conduct and the language used. Oilman vs. People, 178 111. 19. An admission or confession may be implied from the conduct of the party in remaining silent when charged with crime, or witli complicity therein, or when the statements are made by a third person, in his presence, affecting him, when the circumstances afford an opportunity to act or speak in reply, and men similarly situated would naturally deny the imputed guilt, or make explan- ation of the statements. People vs. Tielke, 259 111. 88; Ackcrson vs. People, 124 111. 563; Watt vs. People, 126 111. 9; Gannon vs. People, 127 111. 507. Statements incriminating the accused made in his presence but denied by him, are not admissible against him even though what he said is admitted. People vs. Pfanschmidt, 262 111. 411 ; People vs. Harrison, 261 III. 517. So where defendant hael made promises to be on good behavior if accompanied by party to effect settlement, accusations made against him by other parties and not denied by him, are not com- petent as admissions of facts, by reason of his promise, and not being in a position to denv. Slntterlv vs. People, '76 111. 217. ADMISSIBILITY. General Rule : The rule is. a confession can never be received in evidence when the person has been influenced by any threat or promise for the reason that the law cannot measure the force of the influence used, to decide upon its effect on the mind of the prisoner, and there- fore excludes it, if any degree of influence has been exerted. Austine vs. People, 51 111. 236. CONFESSIONS 293 Province of Court: Admissibility is a question for the court, and in determining the question, it is proper to hear evidence on both sides as to the cir- cumstances under which it was made. ZiK-kermau vs. People, 213 111. 114. "The material inquiry, under this rule, when testimony of a con- fession is offered, is whether it was obtained by influence of hope or fear, — that is to say, even though threats or promises have been made, still if it satisfactorily appear that the confession was not induced thereby, but voluntarily made, it is competent. 'The evi- dence to this point being, in its nature preliminary, is addressed to the judge, who admits the proof of the confession to the jury, or rejects it as he may or may not find it to have been drawn from the prisoner by the application of those motives. This matter resting wholly in the discretion of the judge, upon all the circumstances of the case, it is difficult to lay down particular rules, a prion, for the government of that discretion. ' By the rule first above quoted, the confession becomes incompetent whenever any tiegree of in- fluence has been exerted, because the law presumes it was prompted by that influence, and we think any sufficient testimony to rebut that presumption will justify the court in admitting the testimony. If there is sulficient in the facts and circumstances proven to show that the confession was freely and voluntarily made, there can be no abuse of the legal discretion of the court in allowing the con- fession to be proven before the jury, although there may be evi- dence of threats or promises at the time it was made. The record in this case shows that, before admitting the evidence to the jury, the court heard (out of its presence), the statement of witness as to what took place between himself and defendant, just before the confession was made, and thereupon decided the evicleuce was com- petent. In doing so, we cannot say that he abused his discretion in that ruling. A significant fact tending to show the confession was voluntarily made is that up to the time, defendant had not been arrested, or even publicly accused of the crime, and that he, of his own accord, sought opportunity to talk with the witness about the loss of his money, and manifested no disposition then or after- wards, to deny his guilt, neither is it now claimed that what he said then was untrue." Bartley vs. People, 156 111. 234. Copies : AVhen resort is had to the examination of a prisoner, care should be taken that such examination is taken down in the precise words used by him, as the change of a word might change the character of the confession really made. A copy made from memory, after a lapse of years, is inadmissible. Austine vs. People, 51 111. 236. In Foreign Language: Confessions made in foreign language, written in English by a person who understood such language, signed by the declarants, after being translated to them, are admissible where declarants do not deny confession was voluntarily made, although they claim they were not correctly transcribed or translated to them. People vs. Gukowski, 250 111. 231. 294 CONFESSIONS Made to Detectives: A confession made to a detective is competent. Needham vs. People, 98 111. 275. Voluntary Confession: — In General: An extorted confession is never received. Brown vs. People, 91 111. 506; Miller vs. People, 39 111. 457; Lang- don vs. People, 133 111. 382. Or one influenced by any threat or promise. Aiistine vs. People, 51 111. 236; Eobinson vs. People, 159 111. 115. — Not FuWicIy Accused: Aids confession. Bartley vs. People, 156 111. 234. — When Under Arrest: A confession made orally to a sheriff, after a written statement had been made under a promise of im- munity from prosecution, which had not been withdrawn, and which the accused relied upon, cannot be admitted against him. Any degree of influence exerted in obtaining a confession, by any person having authority over the charge against a prisoner or over his person, will prevent its use against him. Eobinson vs. People, 159 111. 115. — Compromise: The w^ritten admission of a party accused of crime, made with a view to compromise the matter with the injured party, on the basis that he should not be prosecuted, is not admis- sible as evidence on the indictment for such offense. Aiistine vs. People, 51 111. 236. Whole Must Be Given: See Whole of Utterance. Confession of Facts: — Similar Ojfcnses: Evidence of admissions or statements of defendant about another matter not in evidence is not admissible to prove charge upon which he is being tried. Anson vs. People, 148 111. 494; Fox vs. People, 95 111. 71. — Other Offenses: Confessions by the accused of a crime other than that charged in the indictment, while not admissible as a sub- stantive fact, when not separal)le from a competent confession, may go to the jury under cautionary directions from the court. Wistrand vs. People, 218 111. 323; Gore vs. People, 162 111. 259. On trial for embezzlement, a written confession of a previous embezzlement under the same contract, may be admitted in evi- dence if the only proof then before the court is that the confession was voluntary ; and if the defendant subsequently testifies that the confession was not voluntary, but makes no motion to exclude it, the jury may consider it under an instruction requiring them to consider all the evidence in respect to it. Zuckerman vs. People, 213 111. 114. Deceit : Confessions induced by the appliance of hope or fear are not admissible in evidence ; but if facts are elicited by such confession, they may be given in evidence. So where a witness offered to render such assistance to the prisoner, as he might desire, and the prisoner requested him to tell his brother to write that letter, and that he, the witness, would then place the letter in the postoffice at a partic- ular place, and the witness carried the message, obtained the letter, CONFESSIONS 295 and instead of placing it in the postoffiee, delivered it to the prose- cutor, and it was read in evidence on the trial, it was held that it was rightly received in evidence, and the fact that the prisoner was deceived by the witness did not render it inadmissible. Gates vs. People, 14 111. 433. Personal Violence: Where a person is taken from his house about midnight by a body of disguised and armed men, to a neighboring wood, and there hung upon a tree by the neck, and when taken down almost sense- less, confessed that he and certain others committed a robbery, it was error to allow such confession to go to the jury, on the trial of an indictment against him and the others implicated for such robbery. Miller vs. People, 39 111. 457. Coroner's Inquest: If a party testifying before a coroner or committing magistrate is actually under arrest, though it may be without warrant, his testimony is inadmissible. But this rule applies where the accused party is put on his oath and sworn and examined, not on his own motion, but on the motion of the prosecution. Statements made under such circumstances may not only be unreliable, but inquis- itorial in their character. AYhere a man arrested by an officer with- out a warrant, upon suspicion of having committed murder, is compelled to answer under oath as a witness at a coroner's inquest, statements which he thus makes are not admissible against him on his trial for the murder. The thing prohibited by the rule is "the special interrogation of accused, — the converting him, whether will- ing or not, into a witness against himself; assuming his guilt before proof, and subjecting him to an interrogation conducted on that hypothesis." But it is otherAvise where the statements made are voluntary, and where the oath taken is voluntary. Where a pris- oner may testify on his own behalf in all criminal proceedings if he desires, his testimony taken under oath at the preliminary exam- ination, if it appears to have been freely given, without compulsion or promise, is admissible as a confession. Lyons vs. People, 137 111. 602; People vs. Anderson, 239 111. 168. Before Grand Jury: The grand jury constitutes a part of the court, and their official acts in finding true, bills or ignoring bills are borne into the records of the court, and witnesses sworn before that body are sworn in open court, though not necessarily in the presence of the judge. Boone vs. People, 148 HI. 440; Samuels vs. People, 164 111, 379; Argo vs. People, 237 111. 173. Where a person in custody is taken from the jail before the grand jury and sworn and examined as to the very matters on which he is afterwards indicted, the indictment should be quashed on motion of defendant without any inquiry whether his testimony so obtained influenced the obtaining of the indictment or not, when it does not appear that the grand jury examined any other wit- nesses as to his complicity in the crime for which he is indicted. But this does not apply to one not then accused of crime. Boone vs. People, 148 111. 440. 296 CONFESSIONS Admissions Not Amounting- to Confession: — In, General: One charged with crime may directly or indi- rectly make admissions of material facts tending to establish liis guilt or disprove his defense, but not amounting to a confession, and these are admissible against him. Bow vs. People, 160 111. 438. Testimony that one accused of robbery iiad a pistol in his pos- session and chased the witness soon after the robbery and just after witness had been to the station for a warrant, is admissible, where it is material to prove possession of the pistol at that time. Bow vs. People, 160 111. 438. — -Conversations: Conversations in w'hich the accused partici- pated when charged with the crime are admissible at the trial. Waller vs. People, 175 111. 221. Evidence of a conversation with the prisoner, had some time after he shot an officer attempting to arrest him, which is in no correct sense a part of the transation or a contemporaneous ex- planation of it, is not admissible on part of the defendant, on trial for murder, as part of the res gestae, to show the condition of his mind. North vs. People, 139 111. 81. — Flight: Flight, an attempt to escape after indictment found, or before, on a criminal charge being preferred against one, is a circumstance against the prisoner, if unexplained. Evidence is admissible to show that the accused gave "straw bail" and for- feited his recognizance by voluntary absence, and passed under various aliases. Barron vs. People, 73 111. 256. But it is error to instruct tlie jury on trial of one for an alleged crime, that his flight is evidence of guilt. It is only evidence tend- ing to prove guilt. Nor should the court tell the jury that if flight be proved, it must be satisfactorily explained consistently with the innocence of accused. This might be understood as requiring him to prove an innocent purpose beyond doubt. Fox vs. People, 95 111. 71. — Resisting Arrest: That accused resisted arrest may be shown in the first instance, the burden being upon accused to show that such resistance was not for purpose of avoiding arrest and prosecu- tion for the charge upon which lie was being tried. McKeavitt vs. People, 208 111. 460. AS TO JOINT DEFENDANTS. A confession is admissible only against the person making it. People vs. Anderson, 239 111. 168; Ackerson vs. People, 124 111. 563. One of several co-defendants charged with a crime cannot make a statement exonerating himself and fastening the crime upon an- other co-defendant, and thereby make the statements admissible on the theory that it was a confession of the defendant making it. People vs. Anderson, 239 111. 168. A confession of one co-defendant is admissible against him, but should be guarded by cautionary instructions as to other co-defend- ants. People vs. Anderson, 239 111. 168 ; Ackerson vs. People, 124 111. 563. A statement made out of court by one of two men on trial for CONFESSIONS 297 murder, to the effect that he was present and saw his co-defendant do the shooting, is admissible against the declarant as identifying him as one of the persons present at the shooting ; and its admission in evidence over the objection of the co-defendant is not error, where the objection went to the entire statement and not to that part only which tended to incriminate the co-defendant, and where the statement was admitted against the declarant alone, and the jury were instructed not to consider it against his co-defendant. McCann vs. People, 226 111. 562; Ackersou vs. People, 124 111. 563. Several persons, including one who was put on trial for murder, while travelling along the road, entered an orchard by the road- side, when, without justification, in a difficulty with the owner who had ordered them to go out of his orchard, some one of the party, by a blow with a clod, killed the owner, and they all got into the wagon and started towards their homes. A party in pursuit of them, seeking to have them arrested, passed the wagon, when some one of them called out, ' ' Hello, good-looking fellow, ' ' or something like that, but such witness so addressed could not say the defend- ant was in the wagon at that time. It appeared, however, from defendant's own testimony, that he did not get out of the wagon until after they reached the next point where they stopped. It was held that the court properly refused to strike out the words spoken to the witness. Ritzman vs. People, 110 111. 362. WEIGHT AND SUFFICIENCY. In General: The value of confessions as evidence depends upon circumstances under which they are made, and it is for the jury to say, in view of such circumstances, what weight they are entitled to. People vs. Gukowski, 250 111. 231. Partially Discredited Confession: Where part is discredited, the wdiole confession loses much of its probative force. People vs. Hunt, 162 App. 471. Uncorroborated Confession : Confession of a party to an individual merely, uncorroborated by circumstances, and without proof aliunde that a crime has been committed, will not justify a conviction^ May vs. People, 92 111. 343. To Sustain Conviction: Where the crime is clearly shown, independent of admissions or confessions, to have been committecl by some person, then admis- sions or confessions freely and voluntarily made may be sufficient to convict. Gore vs. People, 162 111. 259; Andrews vs. People, 117 111. 195; South vs. People, 98 111. 261; Yoe vs. People, 49 III 410; Bergen vs. People, 17 111. 427; XI 111. Notes 1246, §171. Where evidence is entirely circumstantial and the verdict of con- viction must rest almost entirely on an alleged voluntary confes- sion or admission made by accused to the witness under circum- stances rendering the making of it highly improbable, the fact that the admission was made must be clearly proven before it can be accepted as the basis of a conviction. People vs. McMahon, 254 111. 62. 298 CONFESSIONS A conviction may be had upon proof that a crime has been com- mitted as alleged in the indictment, and the confession of the accused that he was the person who committed it, although there is no other evidence of his identity. Bartley vs. People, 156 111. 234. Verbal Admissions: Statements of witnesses as to verbal admissions of the accused should be received by the jury with gi^eat caution, as such evidence is subject to imperfection and mistake, and it is only when such admissions are deliberately made and precisely identified that the evidence afforded thereby is satisfactory. People vs. Eischo, 262 111. 596; Marzen vs. People, 173 111. 43; Bur- nett vs. People, 204 111. 208. But it is not error to refuse an instruction that such admissions should be received with great caution, which fails to include limi- tation unless they are deliberately made and fully proven, in which event such evidence is of the most satisfactory character. Lipsey vs. People, 227 111. 364. Extra- Judicial : Extra-judicial confessions, when freely and voluntarily made, are of the highest order of evidence. Lyons vs. People, 137 111. 602; Langdon vs. People, 133 111. 382; Marzen vs. People, 173 111. 43. Implied Confessions: The weight to be given to implied confessions is for the jury. People vs. Tielhe, 259 111. 88. To Establish Corpus Delicti: Corpus delicti cannot be proven by extra-judicial confessions alone. People vs. See, 258 111. 152; Johnson vs. People, 197 111. 48; Wil- liams vs. People, 101 111. 383; Campbell vs. People, 159 111. 9; People vs. Kennedy, 150 App. 571. Such confessions unsupported by evidence or circumstances tend- ing to corroborate the facts contained in such confession do not con- stitute prima facie proof of the corpus delicti. People vs. Kennedy, 150 App. 571. CONFESSIONS OF THIRD PERSONS. It is competent for the defendant to show by any legal evidence that another committed the crime with which he is charged. Carleton vs. People, 150 111. 181. One accused of crime may prove any fact or circumstance tend- ing to show that the crime was committed by another person than himself. People vs. Pezutto, 255 111. 583. But this cannot be shown by the admissions or confessions of a third person, not under oath, which are only hearsay. The proof must connect such third person with the fact, that is, with the perpetration of some deed entering into the crime itself. There must be proof of such a train of facts and circumstances as tend clearly to point to him, rather than to the prisoner, as the guilty party. Extra-judicial statements of third persons cannot be proven by hearsay, unless such statements were part of the res gestae. Carleton vs. People, 150 111. 181. So threats made by an unknown person, not a party or a wit- ness to inform as to defendant unless paid is not competent. People vs. Darr, 179 App. 130. CONFIDENCE GAME 299 CONFIDENCE GAME Pleading: — Indictment: Sufficient if in substantial compliance with the statute. People vs. Clark, 256 111. 14; People vs. Weil, 244 111. 176; Graham vs. People, 181 111. 477; Maxwell vs. People, 158 111. 248. But this rule is subject to the qualification that the indictment must either, by the statutory description or by other apt averment, so identify the offense as to meet the requirements of the consti- tution. AVhile a statute cannot dispense with the statement in the indictment of the essential elements of the crime charged against an accused person, still the legislature may provide that the prop- erty which is the subject of the crime may be described by words of general description. People vs. Clark, 256 111. 14. Attempt to obtain money by, and obtaining money by, are sep- arate offenses. Graham vs. People, 181 111. 477. — Bills of Particulars: It is not necessary to set out either in the indictment or bill of particulars the various devices and means resorted to, to obtain the confidence of the prosecuting wit- ness to obtain his money. People vs. Weil, 244 111. 176; DuBois vs. People, 200 111. 157. — Variance: If money is obtained by means of the confidence game, the offense is complete without reference to the amount, kind or value. The word money, in its ordinary and established sense signifies cash or its equivalent, used as a circulating medium. It is a generic term and includes coin, but is not confined to it. It includes whatever is lawfully current in buying and selling. People vs. Clark, 256 111. 14. But an indictment for the confidence game which charges that defendant feloniously obtained from a certain person "$400 of good and lawful money of the United States," is not sustained by proof of obtaining a check for $300, since proof of obtaining a check is fatally variant from a charge of obtaining money. Lory vs. People, 229 111. 268. Admissibility of Evidence: — Similar Offenses: Admissible for purpose of showing guilty knowledge. People vs. Weil, 244 111. 176; People vs. Weil, 243 111. 208; Juretich vs. People, 223 111. 484; DuBois vs. People, 200 111. 157; Morton vs. People, 47 111. 468; XII 111. Notes 668, §34. — Uncompleted Attempt: Proof that the defendant had at- tempted to work substantially the same scheme upon another per- son about the time of the transaction charged in the indictment is admissible as tending to show criminal intent, notwithstanding the defendants did not succeed in such attempt. People vs. Weil, 244 111. 176. — Former Complaints: Evidence by a postoffice inspector that about five years before the trial, when defendant was in the novelty business under the name of a certain company, the witness had twice investigated a complaint of the postoffice department against such company, is incompetent. People vs. Depew, 237 111. 574. 300 CONFIDENCE GAME — ReJiunce Upon Statements: Prosecuting witness may testify- to the fact that he believed in and relied upon the false statements made by the defendant at time of transaction. People vs. Weil, 244 lU. 176. — Fictitious Letters and Telegrams: Used in confidence game, if complaining witness testify that same were shown to him and used by defendants in furtherance of their scheme, such letters and telegrams are admissible in evidence. People vs. Faulkner, 248 111. 158. — Opinion: A witness called to prove that certain bonds traded by defendant in a confidence game prosecution were worthless is not competent to give an opinion to that effect, where he is not shown to have any knowledge whatever of the particular bonds, never having bouglit or sold any of them, nor ever seen any ; except those in evidence. People vs. Tiirpin, 233 111. 4o2. — Contract Legally Binding: Is immaterial. People vs. Depew, 237 111. 574; Chilson vs. People, 224 111. 535; Hughes vs. People, 223 111. 417. Weight and Sufficiency: To justify a conviction, it is not sufficient to prove the defendant guilty of such acts and fraudulent practices only as would subject him to liability in a civil action or to prosecution under some other provision of the criminal code. Dorr vs. People, 228 lU. 216. Confidence game is any swindling operation in which advantage is taken of the confidence reposed by the victim in the swindler, and the form of the transaction is immaterial if it is, in fact, a swindling operation. People vs. Depew, 237 111. 574. Fact that a contract entered into by one party with no intention of carrying it out, but for the purpose of inclucing the other to part with his money without adequate consideration is apparently an ordinary partnership agreement to carry on a legitimate busi- ness venture does not prevent prosecution of the wrongdoer for "confidence game" upon the ground that he has simply been guilty of a breach of contract. Chilson vs. People, 224 111. 535. Parties who falsely represent to a merchant that they are to place a large order with him, and who secure his confidence in them- selves and their intentions by falsely representing their business and financial connections, and after securing his confidence, induce him to part with his money on a pretended bet on a horse race, are guilty of obtaining money by means of confidence game. People vs. Weil, 244 111. 176. Inducing a person to buy worthless stock from a third party, in reality a confederate, upon the false representations that certain parties in a distant city are trying to locate such party with a view to buying the stock at" a good price, which representation is corro- borated by bogus telegrams sent by another confederate, consti- tutes a confidence game. DuBois vs. People, 200 111. 157. CONFIDENCE GAME 301 Verdict of guilty on the second connt of an indictment contain- ing- two connts is ecjuivalent to an acquittal on first count. People vs. Weil, 243 111. 208. Confidence game includes an advertising scheme whereby the victim is led to part with his money in belief that he is being em- ployed in a legitimate business by the advertisers, who falsely rep- resent themselves to be a legitimate business concern, and make such false displays and representations as lead the victim to repose con- fidence in their statements, and in their alleged business enterprise. Hughes vs. People, 223 111. 417. Inducing a man to bet on the top and bottom of dice, and taking his pocket-book and money from his pocket for purpose of betting, is a confidence game rather than a robbery, even though fear is aroused in him for the loss of his money. VanEyck vs. People, 178 111. 199. A conviction cannot be based upon a general trade, at arm's length, between the defendant and complaining witness, in which they exchanged, at fictitious and exaggerated value, stocks and bonds and deeds purporting to convey lands which neither had ever seen, where both parties were "traders," who had acquired their property for trading purposes without any particular investiga- tions as to its value, and where evidence does not show which party, if either, was swindled. People vs. Turpin, 233 111. 452. One who liad no connection Avith a swindling scheme until after other persons had obtained possession of victim's bank draft, and who was entirely unknown to the victim before that time, cannot be convicted of obtaining the draft from the victim by means of con- fidence game, since in such case the element of confidence being reposed in him bv the victim is lacking. People vs. Talmage, 233 111. 560. The exhiliition of letter heads of a firm with which defendant is connected, business cards, a draft, or a copy of one, and the making of a note, payable at a particular bank, and the drawing of an order for money, are means to inspire the confidence in the party's ability to pay, precisely as declarations of his credit and standing, and are, at most, but false representations of his solvency, but do not make out a ease of the confidence game. A note or order given by defendant, which is signed bj^ himself, does not come within the meaning of the words "false or bogus checks," defining the confidence game, as it is genuine. Any one taking either, does so upon the faith of defendant's signature alone. If they contain forged or fictitious writings, signatures or indorsement, a different question would be presented. Pierce vs. People, 81 111. 98; See Berkenfeld vs. People, 191 111. 272. — Sale of Sfocl-: A sale of stock in an undeveloped mine is not converted into confidence game by the failure of mine to prove successful, where all the representations of the vendor as to the material facts, including the location and ownership of the land, and the presence of gold therein, are true, although his opinion as to the possibilities of the mine and the future value of the stock proved to be greatlv exaggerated. Lory vs. People, 229 111. 268. 302 CONFIDENTIAL COMMUNICATIONS Conviction is not sustained by proof that accused was manager of a corporation conducting a "legitimate business, and that com- plaining witness, after investigating the business, bought stock in the corporation, and became district manager under written con- tract providing if he resigned he should co-operate with the corpo- ration to sell his stock to someone else, even though it is proven he was unable to make the business pay, and that accused refused to keep his verbal promise to take back the stock and return the money if the venture was not successful. ' Dorr vs. People, 228 111. 21G. CONFIDENTIAL COMMUNICATIONS See Attorneys, Privileged Communications. CONFUSION OF GOODS Burden of Proof: The burden is upon party confusing his goods with those of an- other, to identify his own property. First Natl. Bauk vs. Schween, 127 111. 573. And this principle applies in matters of account. Diversy vs. Johnson, 93 111. 547. Presumption : Mingling hij Consent: That the parties intended to hold the mass as tenants in common. Dole vs. Ohmstead, 3G 111. 150. CONSENT See Assent. CONSIDERATION See Assumpsit, Parol, Trusts, Deeds, Release, Waiver, Parent and Child. PRESUMPTIONS AND BURDEN OF PROOF, Sealed Instruments: Seal imports consideration. Jackson vs. Security Co., 233 111. 161; Chi. Sash Mfg. Co. vs. Ha- ven, 195 111. 474; Evans vs. Edwards, 26 111. 279; Eiippert vs. Frauenkneeht, 146 App. 397; Con. Rapid Trans. Co. vs. O'Neill, 25 App. 313. Consideration cannot be impeached in action at law. Hartley vs. C. & A. R. R. Co., 214 111. 78; Papke vs. Hammond, 192 111. 631. But release not under seal may be impeached in such action and burden is upon party alleging failure. . Jackson vs. Security Co., 233 111. 161 ; F. & M. Ins. Co. vs. Cames, 224 111. 599; Titsworth vs. Hyde, 54 111. 386. CONSIDERATION 303 Contract of Sale: j ; , The law presumes the consideration fixed by the parties was an adequate and reasonable consideration. Ullsperger vs. Myers, 217 ill. 262. PAROL EVIDENCE. Want of Consideration: — In General: Where instrument is non-negotiable and under seal, and liability conditional, evidence is not admissible to show want of consideration. But where the obligation is direct and for a fixed sum, or for the delivery of specific articles of personal property, such evidence is admissible. Negotiable Instrument act does not apply to non- negotiable bonds or one in which obligation to pay is conditioned on performance of something by obligee. Chi. S. & D. Co. vs. Haven, 195 111. 474; Mann vs. Smyser, 76 111. 336; Gage vs. Lewis, 68 111. 604; Turner vs. P. & S. E. E. Co., 95 111. 134; Friedman vs. Schwabacker, 69 App. 117. For the purpose of showing the failure of consideration, it may be shown by pai-ol evidence that the consideration expressed in the instrument sued on is not the real consideration which induced its execution, but that it was entirely different. The pases holding that parol evidence is not admissible to vary a written contract have no application where a Avant of consideration or a partial or total failure of consideration is pleaded in an action on the same. Gage vs. Lewis, 68 111. 604; G. W. Ins. Co. vs. Eees, 29 111. 272. Parol evidence is admissible to show that a part of the consider- ation of a lease was for rent past due, as it cannot effect or impair the lease in anv wav, or varv its legal effect. Morris vs. Til'lson, 81 111. 607. The claim that when a contract of guaranty is under seal, and states that it is for value received, it cannot be successfully con- tended that there was no consideration, is not tenable. Bullen vs. Morrison, 98 App. 669. — Specific Performance in Equity: "Equity will never enforce an executory agreement unless there was an actual valuable con- sideration, and, unlike the common law, it does not permit a seal to supply the place of the real consideration. Disregarding mere form and looking at reality, it requires an actual valuable consider- ation as essential in any such agreement and allows the want of it to be shown, notwithstanding the seal, in the enforcement of cove- nants, settlements and executorv contracts of every description." Corbett vs. Cronkhite, 239 111. 9; Crandall vs. Willig, 166 111. 233; Cf. Hedrick vs. Donovan, 248 111. 479. If the promisor's agreement to keep the land offer open for a specified time is without consideration, such consideration is not supplied by the fact that the promisee, before such offer was with- drawn, incurred some expenses in investigating the promisor's land, since the fact of his incurring expense does not bind the promisee to accept the offer, and hence does not preclude the promisor from withdrawing the offer before acceptance. Corbett vs. Cronkhite, 239 111. 9. — Action at Law: In an action at law, fraud in the execution of a deed may be given in evidence, as that through misreading, or the substitution of one paper for another, or by other device and 304 CONSIDERATION trickery the grantor was induced to seal it, believing at the time he was sealing something else, or the deed may be shown to be a forgery. But where a person voluntarily and knownigly signs a deed, although he do so in violation of his duty and of the law, or be in- duced by the fraudulent contrivances of others, yet if it be such upon its face as will convey title, it can only be impeached and set aside, and parol evidence may be received for that purpose in a court of equity. Windett vs. Hurlbut, 115 111. 403. Fraudulent representations made to induce the execution of a deed cannot be admitted to defeat a recovery in ejectment, where the representations relate merely to the nature or value of the land. Escherick vs. Traver, 65 111. 379. Fraud is a good defense at law to an action upon a sealed in- strument, if the fraud is such as shows that the party has been tricked into signing an instrument that he did not intend to execute, but such defendant cannot show in an action at law, that he was induced to sign by fraudulent representations as to collateral mat- ters, or as to the nature and value of the consideration. Fowler Cycle Works vs. Frazer, 110 App. 126; Kesser vs. Corwin, 72 App. 625; Friedman vs. Sohwabacker, 69 App. 117; Johnson vs. Wilson, 33 App. 639. — Particular Instruments: In an action between the parties upon the covenants of a deed, the actual consideration may be shown. Lloyd vs. Sandusky, 203 111. 621. And tliat the consideration expressed in the deed was more than the consideration actually paid. Howell vs. Mores, 127 111. 67; Ludeke vs. Sutherland, 87 111. 481. Or applied to only a part of the land described. Sidlers vs. Eiley, 22 111. 110; Kinzie vs. Penrose, 3 111. 515. So in an action for breach of covenant of seizin upon tlie ground that the title to the soil and to the minerals had been severed, and the latter sold to another, it is competent to show in defense that the grantee purchased with knowledge of such severance, and that the consideration paid was merely for the surface. Lloyd vs. Sandusky, 203 111. 621. A deed absolute on its face may be shown by parol to be a mort- gage. The burden of proof is upon the person asserting such fact, and before a deed absolute in form can be declared a mortgage, the proof showing that fact must be clear, satisfactory and convincing. Rankin vs. Eankln, 216 111. 132; Heaton vs. Gaines, 198 111. 479; Burgett vs. Oslwrn, 172 111. 227; Bentley vs. O'Brien, 111 111. 53; XIII 111. Notes 601, § 31. Parol evidence is admissible to show the true consideration of a deed, although it may be different from that named in the instru- ment. Worrell vs. Forsythe, 141 111. 22. The formal clause in a deed reciting the consideration is always open to explanation, and such recital does not waive or destroy the vendor's lien, but it is only prima facie evidence of payment. The fact of non-payment of all the purchase money may be shown, and CONSIDERATION 305 when such fact appears, a lien may be declared notwithstanding the formal receipt for the consideration. The recital of a consideration in a deed is not conclusive upon either party, and it may be shown by parol what the true amount of the consideration is and how it is to be paid. Koch vs. Eoth, 150 111. 212. A deed, by expressing- the consideration, does not necessarily im- port that such sum is to be paid by the grantee to the grantor in any event, so as to fix an indebtedness independent of a contempo- raneous agreement of the parties fixing the mode of payment and determining the amount which shall ultimately be paid. It is com- petent for the parties to agree upon a different consideration, or to agree that the consideration recited in the deed shall be pay- able only conditionally, and if they do so, and reduce their contract to Avriting. the same conclusive presumptions will arise as in other cases, — that all the terms of their contract are embodied in the writing. Fort vs. Eichie. 128 111. 502. The recitals in a deed for land, as to the consideration and its payment, are not conclusive upon either party, but are open to explanation, and it is competent to show by parol evidence that the sum named in the deed was not a true amount of the consideration, and that only a part of it was in fact paid, notwithstanding the recital of full payment. Primm vs. Legg, 67 111. 500; Booth vs. Haynes, 54 111. 363; Sidders vs. Eiley, 22 111. 110; Elder vs. Hood, 38 111. 533; Van Sickle vs. Harnieyer, 172 App. 218. Evidence in regard to what constituted the consideration and that the amount of incumbrances were included in and formed a part of the consideration is competent, under the rule which per- mits parol evidence upon such subject of the consideration of a deed, on bill to set aside deed. Drury vs. Holden, 121 111. 130; Stone vs. Diivall, 77 111. 475. — Rendering Deed KuU: Acknowledgment of payment of con- sideration in deed cannot be contradicted by parol for the purpose of wholly invalidating the deed or impairing its legal effect as a conveyance. , Abermathe vs. Eich, 256 111. 166; Gillespie vs. Fulton Oil Co., 236 111. 188; Poe vs. Uhlrev, 233 111. 56; Standard vs. A. E. & C. Co., 220 111. 469; Sterricker vs. MeBride, 157 III. 70; Morris vs. Til- son, 81 111. 607: AVindett vs. Hurlhnt, 115 111. 403; Esclieriek vs. Traver, 65 111. 379. But partv may show^ bv parol that consideration had failed. Eussell vs. Eobbins,'247 111. 510. But a failure of consideration for an executed conveyance of real estate gives the grantor no right at law to avoid his conveyance. Kronnieyer vs. Buck, 258 111. 586. Where no consideration is shown in a deed of bargain and sale, extrinsic evidence is admissible to show consideration. Eedmond vs. Cass, 226 111. 120. MARRIAGE. Is a sufficient consideration to support a conveyance of land or marriage settlement. Jackson vs. Jackson, 222 111. 46; Hursen vs. Hursen, 212 111. 377; Otis vs. Spencer, 102 111. 622. Ev.— 20 306 CONSPIRACY DEED AS EVIDENCE. Recital of consideration in a deed may, as between the parties to it, be admissible in evidence as tending to show amount paid, but is not conclusive between them. As to strangers, however, such recital is merely an ex parte statement of parties to deed, at most an admission between the parties, and therefore is hearsay as against a stranger. Spohr vs. City of Chicago, 206 111. 441; City of Chicago vs. Lonergan, 196 111. 518; O'Hare vs. C. M. & N. Ry. Co., 139 111. 151. Admissible as an admission of grantor, in action for injury to real estate, where sale was made since injury. Sanitary Dist. vs. Pearce, 110 App. 592. But held inadmissi])le in action by broker for commission. HoUinger vs. Phillips, 140 App. 317. ACTION ON CONTRACT. In action at law on contract, not a negotiable instrument, it is essential that a consideration be shown. Unless such consideration be shown, such instrument is not admissible in evidence. Workman vs. Workman, 168 App. 627. CONSPIRACY NATURE AND ELEMENTS OF CRIME. In General: A conspiracy to do an unlawful act by any means, or to do any act bv unlawful means, is an indictable offense in this state. Smith vs. People, 25 111. 17. A conspiracy may be regarded as a combination of two or more persons, by concerted action, to accomplish a criminal or unlawful purpose, or a purpose, not in itself criminal, by unlawful or crim- inal means. Heaps vs. Dunham, 95 111. 583. There may be a conspiracy to obtain the money of another by false pretenses, although the accomplishment of the object of the conspiracy may be impossible. Ochs vs. People, 124 111. 399. If several persons conspire to do an unlawful act, then in con- templation of law, whatever act any one of them does in furtherance of the original design, is the act of all and all are equally guilty of whatever crime is committed. McMahon vs. People, 189 111. 222; Spies vs. People, 122 111. 1; Hanna vs. People, 86 111. 243; Brennan vs. People, 15 111. 511; XI 111. Notes 900, § 26. The Agreement: Conspiracy as a criminal offense is complete when the agree- ment to do the unlawful act in question is entered into. C. & W. Coal Co. vs. People, 114 App. 75. An agreement or combination need not be evidenced by a writ- ing. It may be a verbal agreement or undertaking or a scheme evidenced by actions of the parties. Franklin Union vs. People, 220 111. 355. Gist of the Offense: The gist of the crime of conspiracy to confederate or agree to accomplish an unlawful purpose is the agreement to do the illegal CONSPIRACY 307 act and not the means agreed to be used to carry out the unlawful agreement. The latter, of itself, is a separate and distinct oti'ense from the former. O'Donnell vs. People, 110 App. 250; Johnson vs. People, 124 App. 213. Where an indictment sufficiently charges the offense, and it suffi- ciently appears from the evidence that the defendants were acting in concert, the fact that they did not succeed in accomplishing their purpose does not affect the question. Conspiracy to do a thing, and an effort made to carry out a common purpose may be suffi- cient to constitute a charge of conspiracy, it not being necessary for the conspirators to succeed in their design. Medley vs. People, 49 App. 218. ADMISSIBILITY OF EVIDENCE. In General: In prosecution for conspiracy to induce witnesses in a criminal case to leave the jurisdiction of court, the guilt or innocence of the person, at whose trial the witnesses would have testified, is im- material. Tedford vs. People, 219 111. 23. Evidence tending to show the relation of the parties, the purpose of the combination, the preliminary steps taken to effect that pur- pose, even before the object be effected, is certainly ascertained, is admissible to establish a conspiracy. People vs. Smith, 147 App. 146. Overt Acts: While it is more desirable to show an intimacy between the defendants charged with conspiring, and private meetings and con- sultations, it is not necessary to do so in order to admit proof of the overt acts of each of the defendants, as the jury may imply the conspiracy from such overt acts. Ochs vs. People, 124 111. 399. Documentary : Books kept by an incorporated bank are not the individual property of the officers thereof, who are charged as individuals with conspiracy, and such books are therefore competent to be used upon the prosecution. People vs. Smith, 144 App. 129; Affd., 239 111. 91. In action for conspiracy to defame by publication of alleged libelous circulars, police court records of an indictment of defend- ant for disorderly conduct and circuit court indictment for libel inadmissible. People vs. Landis, 151 App. 181. Upon trial for conspiracy to defraud the county of money by means of padded pay-rolls, books of a bank are admissible to show that the proceeds of warrants issued to fictitious persons reached the private account of the accused, where the deposit slips and books were identified by the cashier of the bank, who testified that the entries were made in the usual course of business, although they were not made by him personally, but by other clerks, who, since the bank ceased to exist, had moved to different places, some of them to other states. Cook vs. People, 231 111. 9. 308 CONSPIRACY To Show Motive: Evidence tending to sliow a motive is competent on an indict- ment for conspiracy. Sullivan vs. People, 108 App. 328. Other Offenses: In prosecution for conspiracy, evidence of other offenses against other persons is inadmissible unless they form a part of the res gestae or both are part of one system, or the one tends to show a scienter in the other. MeDouald vs. People, 126 111. 150; Johnson vs. People, 124 App. 213; Town vs. People, 89 App. 258; Cf. People vs. Warfield, 172 App. 1. _ Whenever in a conspiracy or other similar case it is necessary to prove a particular intent, and the evidence in regard to the crime charged tends to show two intents as to one or more of the defend- ants, one intent being an innocent or other intent than the one charged, and the other intent being the corrupt intent charged, evidence of other similar offenses is admissible as to such defend- ants for the sole purpose of proving such corrupt intent, if such evidence tend to prove such intent. People vs. Pouchot, 174 App. 1. Acts and Declarations: — In Gineral: Where several persons have conspired together to commit an unlawful act or to commit an act, although not un- lawful in itself, by means which are unlawful, the acts and declar- ations of the members of the conspiracy done or made during the existence of the conspiracy, and in furtherance of its objects, are original evidence against all the others. People vs. Nail, 242 111. 284; Grafe vs. People, 208 111. 312; Van- Eych vs. People, 178 111. 199; Cook vs. People, 231 111. 9; Spies vs. People, 122 111. 1; Oehs vs. People, 124 111. 399; Wilson vs. Peo- ple, 94 111. 299 ; XI 111. Notes 903, § 49. The statement of a party, made at the time of doing an act, may be shown in connection with, and as part of the act. So wliere a party claiming to have deposited a sum of money in a bank to the credit of a third party, a clerk of the bank who had testified that no money had been deposited to the credit of such part.y, was asked, on cross examination, whether, at or about the time in question a deposit had been made, and having answered in the affirmative, he was then asked, "What was said at the time by the party making the deposit," which was held admissible, and an objection to same properly overruled. Medley vs. People, 49 App. 218, A written statement relating to the value of goods destroyed by fire, made by one of the co-defendants in a conspiracy case at the instigation of another in furtherance of a common purpose to defraud an insurance company, is admissible in evidence. Grafe vs. People, 208 111. 312. A declaration of a co-defendant not prosecuted, is admissible with those of one prosecuted. People vs. Smith, 144 App. 130 ; Affd., 239 111. 91. If the fact of a conspiracy between several persons is proven, everything said or done by either of the conspirators in furtherance CONSPIRACY 309 of the conspiracy is admissible against the others whether present at the time or not. Kaymund vs. People, 226 111. 433; Samuels vs. Baule, 234 111. 9; Lasher vs. Littell, 202 111. 551; Frauklin Union vs. People, 220 111. 355; C. E. I. P. By. Co. vs. Collins, 56 111. 212. So where conspiracy established declarations and admissions of co-tenant, joint defendant are admissible. Cohen vs. Friednian, 259 111. 416. Before a conspiracy is established, admissions and declarations must be confined to the person who made them, upon objection by the defendant. Beeler vs. Webb, 113 111. 436. A conspiracy can not be proved by showing acts of the alleged conspirators done separately, but the conspiracy itself must be shown as an independent fact, before the acts of one conspirator are admissible against the other for any purpose. Shields vs. McKee, 11 App. 188. "Whether the acts and declarations of one of several alleged con- spirators shall be allowed to be proven before proof is made of the conspiracy or of the connection of those sought to be charged is largely discretionary with the trial judge. The proof of conspiracy whicli will authorize the introduction of evidence as to acts and declarations of the co-conspirators may be proof only as is sufficient to establish prima facie fact of conspiracy. Spies vs. People, 122 111. 1. — Time and Extent of — Generally: The declarations or state- ments of one party shown to have been connected with another to do an unlawful act, to be admissible in evidence against such other party must not only have been made during the pendency of the criminal enterprise, but also in furtherance of its objects. A mere narrative to a stranger, even when related during the pendency of the criminal enterprise, but of a past event or occurrence is as objectionable as if related after such enterprise had terminated. It is no part of the res gestae, and is inadmissible as against his associate, who is alone upon trial. Samples vs. People, 121 111. 547; McCann vs. People, 247 111. 130. The fact that the acts and declarations covered a period of years is immaterial. Spies vs. People, 122 111. 1. — Before Conspiraey Formed: Declarations in respect to the proposed unlawful act, made by one of the parties before the con- spiracy was entered into, will not be competent evidence against the other persons who subsequently joined in the conspiraey to do the threatened act. Though, in this case, the admission of such declarations against a subsequent co-conspirator was held not ground for reversal, as the evidence could have done no harm, under the circumstances of the case, to the party against whom they were admitted. Wilson vs. People, 94 111. 299. — After Conspiraey Formed: Acts and declarations of mem- bers of a supposed conspiracy are not admissible if made after the conspiracv is at an end. Spies vs. People, 122 111. 1. Except as to party making the declarations. People vs. Darr, 179 App. 130. 310 CONSPIRACY Where several persons have conspired together to do an unlawful act, the declarations of one of them in respect to tlie subject matter of the conspiracy, made after the conspiracy has been formed, are admissible in evidence against his co-conspirators. Wilson vs. People, 94 ill. 299; People vs. Coiniois, 253 111. 206. — In Presence of Accused: A conversation, to be admissible, need not have taken place in presence of some one of the parties jointly indicated, as long as the conversation was in furtherance of the common design, by one engaged in the conspiracy, whether named in the indictment or not. Graff vs. People, 208 111. 312, The exclamations of one of several persons who are doing an un- lawful act are competent. Eitzman vs. People, 110 111. 362. — As Binding On All: If a conspiracy or understanding is established, the incriminating statements of one are admissible against all, but if no conspiracy or understanding is shown, such statements are admissible only against the person making them. People vs. Barkas, 255 Hi. 516. To bind all by the incriminating statements of one, upon the theory that it was made in the presence of all, proof must be made of who of the defendants were present when the state- ment was made. People vs. Barkas, 235 111. 516. Once there has been shown facts evidencing the existence of a conspiracy, all the acts and conversations of any one co-con- spirator are admissible against all. People vs. Smith, 147 App. 146. WEIGHT AND SUFFICIENCY OF EVIDENCE. Conspiracy is not necessarily required to be established by direct testimony. Schemes devised secretly, usually rest in the knowledge of the conspirators alone, and conspiracy may be suf- ficiently established by acts of the parties and surrounding cir- cumstances. Buinham vs. Eoth, 244 111. 344; Christensen vs. People, 114 App. 40. Conspiracy is necessarily proven by circumstances, and when the circumstances are such that no other conclusion could rea- sonably be drawn from them but that such conspiracy existed, it is sufficient. People vs. Straueh, 144 App. 283. When in furtherance of a conspiracy a bomb is thrown, the identity of the. thrower is sufficiently shown if it appear he be- longs to the conspiracy, though name and personal description is not known. Spies vs. People, 122 111. 1. — Circumstantial: A conspiracy may be proven by direct evi- dence or established by proof of circumstances from which its ex- istence may be inferred. Tedford vs. People, 219 111. 23; Ochs vs. People, 124 111. 399; Peo- ple vs. Poiieliat, 174 App. 1 ; People vs. Darr, 179 App. 130. — Cmnmon Design: Though the common design is of the es- sence of the charge of conspiracy, it is not necessary to prove that the defendants came together and actually agreed, in terms, to have that design, and pursue it by a common means. If it be proven CONSPIRACY 311 that the defendants pursued, by their acts, the same object, often by the same means, one performing one part and another execut- ing another part of the same, so as to complete it, with a view to the attainment of the same object, the jury may be justified in tlie conchision that they were engaged in a conspiracy to effect that object. Oclis vs. People, 124 ill. 399. — 3Iore Than One Person: There must be more than one per- son shown to be guilty. Evans vs. People, 90 111. 384; Johnson vs. People, 124 App. 213. — Intent: It needs something more than a proof of a mere passive cognizance of fraudulent acts or illegal action of others to sustain a conspiracy. There must be something showing active participation of some kind by the parties charged. Evans vs. People, 90 111. '384; 'Donnell vs. People, 110 App, 250; Johnson vs. People, 124 App. 213. DEGREE AND BURDEN OF PROOF. Conspiracy alleged must be shown by clear and satisfactory evi- dence. Evans vs. People, 90 111. 384. Burden of proof is upon prosecution to prove conspiracy al- leged beyond a reasonable doubt. Johnson vs. People, 124 App. 213. PLEADING AND PROOF. Indictment : An indictment charging a conspiracy to do an unlawful act, such as to obtain money from a bank by false pretenses, need not set out the means by which the conspiracy was to be carried into effect. People vs. Nail, 242 111. 284. It is sufficient to frame an indictment in the words of the statute in all cases where the statute so far individuates the of- fense that the offender has proper notice, from the mere adoption of the statutory terms, what the offense he is to be tried for really is. It is no more allowable, under a statutory charge, to put a de- fendant on trial without a specification of the offense, than it would be under a common law charge. Towne vs. People, 89 App. 258. Where the conspiracy is to do an unlawful act, it is not neces- saiy to set out the means used, in the indictment, but when it is to do a lawful act by unlawful means, those means must be shown. Smith vs. People, 25 III. 17. — Variance: It is not a material variance that the proof of the common design shows it to have taken place at a place other than the original chosen. So, if there is a conspiracy to kill a police- man at a station house, but the agents of the conspiracy kill the policeman at a short distance away from it, there is no such departure from the original design as to relieve the conspirators from the responsibility. A plan for the perpetration of a crime, or for the accomplishment of any action, whether worthy or un- worthy, cannot always be executed in exact accordance with the 312 CONTEMPTS original conception. It must suffer some change or modification in order to meet emergencies or unforeseen contingencies. Spies vs. People, 122 111. 1. False bookkeeping and false reports to conceal an embezzle- ment will not support a charge of conspiracy to ol)tain inouey by false pretenses. Watsou vs. People, 27 App. 493. A conviction under an indictment for conspiracy to defraud a named person of his money by writing worthless insurance poli- cies, is not sustained by proof that the defendants conspired to defraud the public generally, by such means ; that they never knew the person named in the indictment until he took out his policy, and that such person had sustained no loss, although some others who had taken out policies with the defendants sustained losses which were not paid. Lowell vs. People, 229 111. 227. In order to sustain a conviction for conspiracy, the object of the conspiracy must be proved as laid in the indictment. Evans" vs. People, 90 111. 384; Johnson vs. People, 124 App. 213. An allegation in an indictment for a conspiracy describing a report as sworn to by the secretary of a building and loan asso- ciation on a certain day, is not sustained by the introduction of a report sworn to on a later date. Towne vs. People, 89 App. 258. A conspiracy to do bodily injury to certain persons and a conspiracy to prevent certain persons by unlawful means from being employed by certain corporations, are separate and dis- tinct offenses, where defined by separate sections of the criminal code and subject to different punishments. Jolmsnn vs. People, 124 App. 213. Bill of Particulars: A person indicted for conspiracy is entitled, upon proper appli- cation, to a bill of particulars. Towne vs. People, 89 App. 258. Where indictment is general, court may require bill of particu- lars to be furnished, and when furnished, evidence is limited to matters stated in bill. McDonald vs. People, 126 111. 150. CONTEMPTS DEFINED. In General: Contempts are either direct, such as are offered to the court while sitting as such, and in its presence ; or constructive, but tending to obstruct, embarrass or prevent the due administration of jus- tice. O'Neill vs. People, 113 App. 195. Civil: When a person fail or refuses to do something which he has been ordered to do for the benefit of the opposite party, and he CONTEMPTS 313 is punished therefor, either by imprisonment or fine, the con- tempt is civil. Powers vs. People, 114 App. 323; Christenson vs. People, 114 App. 40. Criminal : A criminal contempt embraces all things committed against the majesty of the law, and the primary purpose of their punishment is the vindication of public authority. Powers vs. People, 114 App. 323; People vs. Diedricli, 141 111. 665. JURISDICTION. A party is not guilty of contempt in disobeying an order of a court which is without its jurisdictou. People vs. Weigley, 155 111. 491; Lepold vs. People, 140 111. 552; Snyder vs. Powell, 133 App. 393; Early vs. People, 117 App. G08; XI 111. Notes 935, §5. Party may be punished though order is erroneous. Swed. Amer. Tel. Co. vs. Casualty Co., 208 111. 562; Butler vs. Champ- lin, 124 App. 29; Tolman vs. Jones, 114 111. 147. INDICTABLE OFFENSE. The fact that an act may be indictable or punishable in some other manner does not deprive the court of power to punish it as a contempt. «heiman vs. People, 210 111. 552. JURY TRIAL. Where it is sought to coerce defendant into the performance of the duty which the court had ordered him to perform, by pro- ceedings for contempt of court, defendant is not entitled to trial by jury. O'Brien vs. People, 216 111. 354; Barclay vs. Barclay, 184 111. 471; People vs. Kipley, 171 111. 44. IMMUNITY. The constitutional right of an accused not to furnish evidence which might tend to criminate him extends to all proceedings sanctioned by law. Neither civil nor criminal courts, quasi-ju- dicial tribunals, grand juries, commissioners, court martial or any incjuisitors of any kind can compel a person to give evidence which may tend to convict him of a criminal offense. The right of a witness to refuse to answer incriminating ques- tions or to produce incriminating documents is personal ; it can- not be claimed for him by a mere party to the proceeding, and he cannot avail himself of such right by mere silence or refusal to obey a subpoena duces tecum. His refusal must be by him placed upon the ground that to do so would be to furnish evidence tend- ing to incriminate himself. Kanter vs. Clerk Circuit Court, 108 App. 287. "The extent of the privilege guaranteed to a citizen under these constitutional provisions has received the consideration of this court and the rule is firmly established that if the proposed evidence has a tendency to incriminate the witness or to establish a link in a chain of evidence which may lead to his conviction, or if the proposed evidence will disclose the names of the persons upon whose testimony the witness might he convicted of a crim- 314 CONTEMPTS inal offense, or expose him to penalties or forfeitures, he cannot be compelled to answer." People vs. Argo, 237 111. 173; Minteis vs. People, 139 111. 363; Lamsen vs. Boyden, 16U 111. 613; Samuel vs. People, 164 111. 379. The right of a witness to refuse to furnish evidence which will incriminate himself is a constitutional right too hrmly established to be questioned. To entitle him to his privilege of silence the court must see, from the circumstances of the case, and the na- ture of required evidence, that there is a reasonable ground to apprehend danger to witness from his being compelled to answer. A party called to give evidence or to produce in court, to be used as evidence, books of a corporation of which he is in possess- ion as its officer, is in entirely a different situation from that of an officer of an insolvent corporation, who is directed to turn over the books of such corporation in his possession, to a receiver of the corporation. Possession of the receiver is possession of the court. If the books contain incriminating evidence, court can protect rights. Manning vs. Securities Co., 242 111. 584. If a person who has been ruled to show cause why he is not in contempt for refusing to turn over books and papers, has the right to invoke his constitutional privilege against furnishing evi- dence which may incriminate him, his answer should follow the practice with reference to the discovery and inspection of privi- leged documents, and should point out the books and documents he claims are incriminating and should offer to turn over those that are not. Manning vs. Securities Co., 242 111. 584. INTENTION. Before inliieting any punishment upon one charged with a crim- inal contempt, alleged to have been committed out of the pres- ence of the court, it should clearly appear that such person was actuated by some malevolent intention to lower or assail the dig- nity of the court, or wilfully or knowingly interfere with the ad- ministration of justice. Powers vs. People, 114 App. 323; Dines vs. People, 39 App. 565. FACT OF CONTEMPT— PLEADINGS. Bill of Particulars: It is discretionary with the court, in proceedings for contempt, to order or to refuse to order the filing of a bill of particulars, and, as a matter of fact, it is not the practice to furnish bills of par- ticulars in contempt proceedings. Cliristeusen vs. People, 114 App. 40. Special Interrogatories : i\lay be required if the answer is not regarded as sufficiently definite as to factum of contempt. Oster vs. People, 192 111. 473. CRIMINAL. Constructive : — Answer Sufficient: In criminal contempts, alleged to have been committed out of presence of court, if defendant's sworr. answer is sufficient to acquit him, he is entitled to be discharged. Oster vs. People, 192 111. 473; People vs. Diedrieh, 141 111. 665; Buck vs. Buck, 60 111. 105; Perry vs. Kausz, 167 App. 250; Early vs. People, 117 App. 608. CONTEMPTS 315 — 3Iust he Allowed to Ansiver: For contempt committed out of view and hearing of court, the offending party must be allowed to answer and offer evidence in defense of charge, and if he is denied right to answer, and is adjudged guilty without a hear- ing, the order committing him for contempt is void. Hohcnadel vs. Steele, 237 111. 229. In such proceedings, except where contempt is committed in presence of court, and in cases where answer contradict the rec- ord, if the conteimior's answer is sufficient to acquit him, he must stand acquitted, and it is error for court to proceed to hear oral evidence. If contemner can clear himself upon his oath, he must be discharged. If he commits perjury by his answer, the rem- edy is to prosecute him for perjury. People vs. Cochran, 149 App. 369; Baird vs. People, 134 App. 433; Ferrinian vs. People, 128 App. 230 ; Longenbrook vs. People, 130 App. 320; XI 111. Notes 941, §61. — Judicial Notice: Courts take judicial notice of facts consti- tuting contempt, where the contempt was committed in its pres- ence. Ferriman vs. People, 128 App. 230. In direct contempt in presence of court, there is no need of evidence to prove to court what is already manifest. Hohenadel vs. Steele, 237 111. 229. CIVIL. Sw^orn Answer: Where the respondents in a civil proceeding for contempt file sworn answers denying charges made against them, they are not entitled to a discharge. Flaimery vs. People, 22.5 111. 62; Christensen vs. People, 114 App. 40; Affd., 216 111. 354; Sloan vs. People, 115 App. 84; O'Brien vs. People, 216 111. 354; Oehler vs. Levy, 168 App. 41. Burden of Proof: Party bringing the accusation is, in absence of admission of defendants, bound to prove existence of order and its violation. People vs. Weigley, 155 111. 491. But failure of a husband to comply Vvuth a divorce decree, direct- ing payment of alimony, is prima facie evidence of contempt, and burden is upon him to prove his inability to pay. Shaffner vs. Shaflfner, 212 111. 492; Been vs. Bloomer, 191 111. 416; Boyden vs. Boyden, 162 App. 77. ADMISSIBILITY OF EVIDENCE. In a remedial proceeding for contempt in violating an injunc- tion, the court may hear affidavits, or any other proper evidence, to determine the truth of the matters, and is not confined to an- swers of defendant, as a court of law is confined to the answers to the interrogatories in a criminal proceeding. Hake vs. People, 230 111. 174; Rothschilds & Co. vs. Steger Piano Co., 256 111. 198. Where contempt proceedings, in which conspiracy is charged, have been heard, the evidence upon such initial hearing may prop- erly be again considered upon subsequent like contempt proceed- ings in same case, where it appears there was but one entire con- spiracy, which existed and was being carried on during the entire period covered by all of such contempt proceedings. 316 CONTESTED ELECTIONS A conspiracy may be estahlishecl by circumstantial evidence. (Jhrisleuseu vs. People, 114 App. 4U. Party ciiarged with contempt is not limited to defenses set up in answer to rule to show cause. People vs. Weigley, 155 111. 491. DEGREE OF PROOF. Civil: A contempt proceeding for violation of injunction is of a civil nature, and, notwithstanding acts charged may be of such nature as to be punisiiable as crimes in proper proceeding, the rule of evidence in civil cases, is the test of degree of proof necessary to establish fact of violation of injunction, and proof "beyond rea- sonable doubt" is unnecessarv, a preponderance being sufficient. Plannery vs. People, 225 111. 63 ; Hake vs. People, 230 111. 174. Criminal : The imposition of a fine or sentencing to prison for contempt is rendering of judgment in criminal case ; therefore guilt must be established beyond a reasonable doubt. HoUister vs. People, 116 App. 338. CONTESTED ELECTIONS See Citizenship, Residence, Domicile. Fresumptions : — Notice of Election: The presumptions in reference to the giving of notice which attend an election under the general law, do not obtain in the case of a special election. Southworth vs. Board of Education, 238 111. 190. — Eight of Person to Vote: Presumed that voter had legal right to vote. Collier vs. Anlicher, 189 111. 34. Where an election board permits a person to vote, that creates a prima facie presumption of his right to vote, which must be overcome by proof of the contest on the election. Webster vs. Gilmore, 91 111. 324. A person whose vote is received by the officers in charge of an election, in absence of contrary evidence, will be presumed to have been a legal voter. Blankeuship vs. Israel, 132 111. 514. — For Whom Vote was Cast: Proof of party affiliation of a voter raises presumption that he cast his ballot for the nominee of his political party, and in the absence of countervailing evidence or circumstances, is accepted as determining for whom such bal- lot was cast. Eexroat vs. Schein, 206 HI. 80. — Proclamation, of Results: In absence of evidence that the judges of election made no proclamation of the result of the elec- tion, as required by law, it will be presumed, on contest, that they performed their duty in that regard. Dooley vs. Vau Hobensteiu, 170 HI. 630. Burden of Proof: — Illegality of Votes: The burden of proving vote illegal is on party objecting to same. ^..^ t>i or a Welsh vs. Sluimway, 232 111. 54; Dorscy vs. Brigham, 1(7 111. 250; Blankenship vs. Israel, 132 111. 514. CONTESTED ELECTIONS 317 — Idcntitif and CondUion of Ballots: Burden is upon contest- ant to show that the ballots are those cast at the election, and that they are in the same condition as when cast, and it is not incum- bent upon defendant to show that the ballots offered to impeach his title have been changed. West vs. Sloan, 238 111. 330. — Preservation of Ballots: Burden is upon contestant to prove the ballots have been preserved as required by law. Graham vs. Peters, 248 111. 50. — Effect of Irregular Acts on Eesidt of Election: The burden of showing that illegal, irregular or wrongful acts atfected the result of the election, rests upon party alleging same. Kreitz vs. Bebrcnsnieyer, 125 111. 1-±1. Questions of Law and Fact: AVhether ballots have been properly preserved, is a question oi fact, to be determined from all the circumstances proved. Perkins vs. P.ertrand, 192 111. 58, . Admissibility of Evidence: — In General: The court, in election contest suit, is not limited to the particular form of evidence to which the canvassing board is restricted by the statute. And so the evidence in a contested election case, to prove or disprove the right to an office, is not limited to the result as declared by the election officers, but the whole proceeding may be investigated and the true result ascer- tained. Co. of Lawrence vs. Scliiiiaulhausen, 123 111. 321 ; Talkington vs. Turner, 71 111. 234; Dale vs. Irwin, 78 111. 170; Kingery vs. Berry, 94 111. 515; People vs. Killduff, 15 111. 493. Thus it may be shown by a legal voter that he voted a ballot of a certain number in favor of the contestee, and by other evi- dence that, at the time of the re-count, no such ballot was found and counted, Kreitz vs. Behrensmcyer, 125 111. 141. If the evidence discredits both the ballots and the returns, the true result of the election must be determined by a consideration of both, and of all the other circumstances which will aid in de- termining the truth of the matter at issue. Brentz vs. Smith, 250 111. 521; Graham vs. Peters, 248 111. 50; Roland vs. Walker, 244 111. 129; Smith vs. Eeid, 223 111. 493; Dooley vs. Van Hohenstein, 170 111. 630. — To Show Establishment of Election Districts: Where it is claimed that city council has never established any election dis- tricts, a witness who has examined the records should be allowed to state that they show nothing with reference to a certain mat- ter, if that is the fact, but the records should be in court. Welsh vs. Shumway, 232 111. 54. — Circumstantial Evidence: Circumstantial evidence, such as party affiliation, relations with candidates, etc., is admissible to show how a person voted, and is generally sufficient to prove the character of the vote. Sorenson vs. Sorenson, 189 111. 179. 318 CONTESTED ELECTIONS Court is not concluded by the testimony of an illegal voter as to whom he voted for. Woodmayer vs. Davis, 231 111. 42. Fraud in the conduct of an election may be shown by circum- stantial evidence. Brents vs. Smith, 250 111. 521. — As to How Ballot icas Marked: Election officers cannot give evidence as to how ballot was marked, although voter did not swear to disability. Gill vs. Sbmtleff, 183 111. 440. — Voter's Affidavit: An affidavit by a voter, made three days after the election, to the effect that he had inadvertently voted twice, voting the same ticket each time and marking both alike, is admissible on contest, where the voter has refused to testify but has not claimed his privileges. Eggers vs. Fox, 177 111. 185. — Declarations of Voter: Declarations of voters for the pur- pose of showing that they were not cjualified to vote, if made sub- sequent to the election, are not admissible. Behrensnieyer vs. Kreitz, 135 111. 591; Beardstown vs. Virginia, 81 111. 541 ; Kreitz vs. Behrensmeyer, 125 111. 141 ; Collier vs. Ahulicher, 189 111. 34. The voter being considered a party as against the contestant, his declarations showing his want of qualification to vote, may be shown against him, after first proving he voted adversely to con- testant, on the ground that such declarations are against his inter- est. But where it is not shown by other competent evidence how he voted, such declarations are not admissible. Beardstown vs. Virginia, 76 111. 34. — To Impeach Ballot: As to how far extrinsic evidence is ad- missible to explain a ballot, and the intention of the voter who cast it, there is less difficulty in stating the rule in general terms than in applying it to particular instances. Manifestly, it would not be competent to hear the voter say that he intended a ballot, which is plainly for a particular name, for one having no simi- larity of sound, that one might reasonably be intended for the other; and it is quite as obvious that it is competent to prove by the elector what he understood the names of the candidates to be and how he reads his ballot. If he has used the letters of a foreign language to express the name, it is competent to prove, by the voter, or by some one versed in the language, what word or words they make. If the characters are so complex in their formation or so imperfectly formed, or so obscurely impressed, as to make it difficult to read them, it is competent to prove, by some one understanding them, what they are. What is not admissible is to show that something was intended which is plainly contra- dictory of what was done. Kreitz vs. Behrensmeyer, 125 111. 141. Voter may testify as to whom he voted for when ballot pur- porting to be his is a forgery. Kreitz vs. Behrensmeyer, 125 111. 141. CONTESTED ELECTIONS 319 Extrinsic evidence admissible where ballot is imperfect. MeKiiinon vs. People, 110 111. 305. The ballot of a voter showed he voted in a certain way, but the voter testified that he voted the other way: Held, that in ab- sence of any proof of fraud, that the testimony could not be re- ceived to show the intention of the voter in opposition to his bal- lot. Beardstown vs. Virginia, 76 111. 34; Behrensmeyer vs. Kreitz, 135 111. 591. — Ballots: Ballots admissible though not preserved according to law. Collier vs. Anlicher, 189 111. 34; Bonney vs. Finch, ISO 111. 133. Ballots used in previous contest are admissible where not shown to have been tampered with. People vs. Barrett, 203 111. 99. Ballots not endorsed with initials of judges of election cannot be counted. Grubb vs. Turner, 259 111. 436. Ballots are properly admitted in evidence where they were prop- erly returned to the village clerk, who put the envelope contain- ing them in a w^ooden ballot-box, which he locked up, retaining the custody of the key, and w^iich box he placed in the back room of his printing office, which he considered a safe place ; and if there is an entire absence of testimony that the ballots, box or lock was tampered with, the fact that the lock is a common one and that other persons had access to the room does no render the ballots inadmissible. Kreider vs. McFerson, 189 111. 605. The returns are not conclusive evidence of the result, even though the ballots have not been preserved according to law, — and espe- cially where the returns themselves have not been properly pre- served, Catron vs. Craw, 164 111. 20. Ballots are admissible in election contest, their probative force depending upon the care with which they have been preserved, and unless their preservation has been such that there has been no reasonable opportunity for tampering with them, they cannot overcome the returns. West vs. Sloan, 238 111. 330; Bonney vs. Finch, 180 111. 133. — To SJiow Voters Not Legal Voters: Less particularity is re- quired in the answer of defendant than in the petition. When the petitioner alleges he was elected, and this is denied, it is com- petent for defendant to show that the persons voting for con- testant, whose names are given in the answer, are not legal voters. Kreitz vs. Behrensmeyer, 125 111. 141. — Missing Ballots: Proof by a legal voter that he voted a bal- lot of a certain number in favor of contestee, and, b}^ other evi- dence, that at the time of the recount, no such ballot was found and counted, is admissible, though pleadings failed to charge the abstraction of any ballots, or of any misconduct on the part of the judges of the election : for the reason it could not have known the ballot was missing before the recount. Kreitz vs. Behrensmeyer, 125 111. 141. — To Show Voter's Age: Proof of age may be made by entries 320 CONTESTED ELECTIONS in family bible. Should he shown when and by whom record was made. Parol evidence is incompetent to prove what family record contains. Kreitz vs. Bebrensmeyer, 125 111. 141. — Certificate of Election: The certificate of election is com- petent evidence, even if it omits to give the number of votes cast, and the returns mav be resorted to in order to ascertain same. People vs. Wyant, 48 111. 263. Weight and Sufficiency of Evidence: • — Judge's Rdurns: Judge's returns cannot be taken as con- clusive, even though ballots may be discredited, where the tally sheet shows erasures of several tallies for the defeated candi- dates, and the ballots about which there is no controversy entitled him to several more votes than w^ere given him by the returns. Brents vs. Smith,. 250 111. 521. The returns are prima facie evidence of the result of the pro- ceeding, but not alwavs conclusive. Kreitz vs. Behrerismeyer, 135 111. 591 ; Catron vs. Craw, 169 111. 20. — Buying Votes: The mere fact that a number of ballots in the same precinct were marked in substantially the same manner, and that in all of them the imprint of the pencil could be seen on the back of the ballots is not, of itself, evidence that the votes were being bought, and that some one in the polling place was watch- ing the appearance of the ballots to convey information thereof to the purchaser, AViini vs. Blaekman, 229 111. 198. Best and Secondary Evidence: Where the ballots have been properly preserved, they are the best evidence of the result of the election. Arnold vs. Keil, 252 111. 340; Brents vs. Smith, 250 111. 521; Ifoland vs. Walker, 244 111. 129; Perkins vs. Bertraud, 192 111. 58; Caldwell vs. McElvain, 184 111. 552; Bonney vs. Finch, ISO 111. 133. In order that ballots should be controlling as evidence, it nuist affirmatively appear that they have been preserved in the manner and by the officers required bv the statute. Eoland vs. Walker, 244 111. 129; Jeter vs. Headlev, 186 111. 34; Beall vs. Albert, 159 111. 127; Brents vs. Smith, 250 111. 521. The ballots cast are better evidence than the count of the judges and clerks of election, where they have been preserved in the man- ner and bv the officers prescribed in the statute. Catron vs. Craw, 164 111. 20. Ballots not properly preserved and which have been tampered with or exposed to interference of unauthorized persons cannot prevail over undiscredited returns. Brents vs. Smith, 250 111. 521; Chaisser vs. York, 211 111. 56; Cald- well vs. McElvain, 184 111. 552; XII 111. Notes 301, § 221. Residence of Voter: — In General: The controlling inquiry is where, if at all, does a man make his home, and claim, for the time, the exercise of rights of property and citizenship incident to or resulting from the permanent residence. Kreitz vs. Behrensmeyer, 125 111. 141. — Defined: A resident of a place is one whose abode is there, and who has no present intention of removing therefrom. Dorsey vs. Brigham, 177 111. 250. CONTESTED ELECTIONS ' 321 — Permanent Abode: A permanent abode, in the sense used in our statute, in regard to elections, means nothing more than a domicile, a house in which the parly is at liberty to leave tempo- rarily as interest or whim may dictate. Moffit vs. Hill, 131 111. 239. A permanent abode described as a criterion of residence re- quired to constitute a legal voter does not mean an abode which the party does not intend to abandon at any future time. In the sense of the statute, a permanent abode means nothing more than a domicile, a home which the party is at liberty to leave as inter- est or whim may dictate, but without any present intention to change it. Dale vs. Irwin, 78 111. 170. — Intention: Intention to reside here and coming to this state by a man makes this his place of residence, although his family was visiting in another state. Behrensmeyer vs. Kreitz, 135 111. 591. With a fondness for moving across the state line, but with- out the intention of abandoning his residence, and with the in- tention of just moving back and forth a while, and then to set- tle down, by one claiming a residence in Illinois all the time, does not cause a loss of resiclence. Carter vs. Putnam, 141 111. 133. Voter's testimony of intention with respect to residence is ad- missible but not conclusive. Welsh vs. Shiimway, 232 111. 54. Where the ground of contest was that the party elected had lost his residence by leaving the state, the contestant called claim- ant as a witness, and while he was on the witness stand, one of the jurors asked him what his intention w^as when he went away, was it to make a visit or for some other reason? Contestant ob- jected to the question and the court sustained the objection : Held, that the testimony called for was proper and it was error to ex- clude it. Wilkins vs. Marshall, 80 111. 74. — Time : Residence in the town excludes the first day and includes the last day. Twenty-nine days residence is not sufficient to make a legal voter. Behrensmeyer vs. Kreitz, 135 111. 591; People vs. Markieweiez, 225 111. 5G3. One who rents a Jiouse less than thirty days before an election and leaves part of his goods there, but keeps part of them at his former residence, in another election district, and intends to re- main there, retains his old residence. Welsh vs. Shuniway, 232 111. 54. — Sleeping and Eating: A person rooming in one district and taking meals in another, is not a legal voter in the latter dis- trict. Widmayer vs. Davis, 231 111. 42. One does not retain a residence in one district by keeping the keys of a house after he has moved. Welsh vs. Shumway, 232 111. 54. Sleeping and eating by a young man, across the town line, at his father's house, would not be sufficient to change his residence Ev.— 21 322 • CONTESTED ELECTIONS from the place where he has his business, claiming that as his resi- dence. An unmarried young man in business, claiming his place oi business as his permanent abode, has a right to cast his vote in that town, although he may have boarded across the town line with his father, and slept at his father's house, but without the in- tention of changing his residence. Carter vs. Putnam, 141 111. 133. — College Students: A college student, as respects matters of residence, may vote at the place where the college is located, if he is free from parental control, and regards the place where the college is located as his bona fide residence. Welsh vs. Shumway, 232 111. 54; Dale vs. Irwin, 7S 111. 170. A student is not presumed to have the right to vote, and if he attempts to do so, the burden is upon him to prove his residence. Welsh vs. Shumway, 232 111. 54. — Previous Voting in Same District: Where the plat of a school district does not include the land of a certain voter, mere proof that he has always voted in the district, and sent his chil- dren to school there, and that a petition had been presented to attach his land to the district, does not show his residence in^ the district, there being no record of the petition proven or any official action thereon shown. Buckingham vs. Angell, 238 111. 564. — Voting in Another State or Precinct: The fact that a citi- zen and legal voter of this state, while engaged in business in another state, voted at some eh^ction there, without riglit, will not deprive him of his residence right and voting in this state. O 'Hara vs. Wilson, 124 111. 351. Attempting \o vote in a certain precinct is not conclusive of a voter's legal residence. Welsh vs. Shumway, 232 111. 54. — Continuance: Domicile in another state, once acquired, is presumed to continue. Moliitt vs. Hill, 131 111. 239. — School District Plat: A plat of a school district which fails to show that the land of a certain voter is within the district is not conclusive of his right to vote at the school election, and it may be shown that his lands have been regularly annexed to the district by the board of trustees, even though the plat is of a later date than the annexation, Buckingham vs. Angell, 238 111. 564. — Abandonment: A residence is not lost until a new one is ac- quired. Wilkius vs. Marshall, 80 111. 74. — Temporary liesiclcnee: Temporary settlement for purpose of voting does not supply qualification of residence. Sorcnson vs. Sorenson, 189 111. 179; Dorsey vs. Brigham, 177 111. 250. If a man is working in a city for an indefinite time, and has no other home or residence to wliich he intends to return, such city may be regarded as his residence, even though he may not in- tend to to remain there permanently. Welsh vs. Shumway, 232 111. 54. ^-Temporary Absence: Residence, as a qualification to voting, CONTESTED ELECTIONS 323 is not forfeited by a temporary absencd'or engagement in business in another state. Collier vs. Almlicher, 189 111. 34. To effect a cliange of domicile tiiere must be an actual aban- donment of tlie first domicile, coupled with an intention not to return, and there must be a new domicile acquired by actual residence within another jurisdiction, coupled with the intent to make the last acquired residence a permanent home. People vs. MeCoiinell, 28 App. l:8.5. Whether a party has permanently left his residence or has ac- quired a new one depends upon the intention with which he acts in the premises. Ivemoval for several months, when no new resi- dence is acquired, does not forfeit residence for the purpose of voting. Collier vs. Ahnlicher, 189 111. 34; Smith vs. People, 44 111. 16. One returning to a city just previous to an election, from an- other city where he had gone with his family, is not shown to be an illegal voter, though he was registered in the latter city, where the evidence shows there was no affidavit of registration there, and that he intended to return to the former city. Widmayer vs. Davis, 231 111. 42. Pauper: A party does not forfeit his residence in a precinct in which he was a voter merely by becoming a county charge. Welsh vs. Shumvvay, 232 111. 54; Dale vs. Irwin, 78 111. 170. A pauper at the county poor house does not acquire a residence in that township w^lien sent there from another township. Clark vs. Kobinson, 88 111. 498. Witnesses : — Determination of Competency: Determined by same rules which prevail in suits between private parties. Eggers vs. Fox, 177 111. 185. — Privilege of Voter: A voter may claim his personal privilege and refuse to testify on the ground that his testimony might tend to criminate him. but if it is proven that he had no right to vote, and he admits, without claiming his privilege, that he voted, he may be required to state for whom he voted, as the rule pro- tecting the voter against disclosing for whom he voted is not designed to shield illegal voters. Buckingham vs. Angell, 238 111. 564; Sorenson vs. Sorenson, 189 111. 179. A witness cannot be compelled, on contest, to tell for whom he voted; but the privilege is a personal one, and if not claimed by him, it is error to sustain counsel's objection based thereon. Where a witness refuses to testify as to whether he voted, but states that he has no particular reason for refusing, the court should compel him to testify, and neither the court nor counsel can claim his privilege for him. Eggers vs. Fox, 177 111. 185; Sorenson vs. Sorenson, 189 111. 179. A legal voter cannot be compelled to testify for whom he voted. Sorenson vs. Sorenson, 189 111. 179. It is not the duty nor the right of the court to say or do any- thing which might prevent the witness from testifying if he saw proper. Eggers vs. Fox, 177 111. 185. 324 CONTRACTS CONTRACTS See Abandonment, Alterations and Erasures, Ante Nuptial Contract, Ambiguity, Assumpsit, Building Contracts, Cancel- lation OF Instruments, Consideration, Custom and Usages, Deed as Mortgage, Description, Delivery, Fiduciary Relations, Fraud, Gambling Contracts, Husband and Wife, Identity, Pa- rol, Parent and Child, Ratification, Rescission, Reformation OF Instruments, Release, Seals, Waiver, Warranty, Work and Services. CONTRADICTION AND SUSTAINING WITNESS See Impeachment, Credibility, Cross Examination. Direct Impeachment: — In General: A party having called a witness and had him testify, cannot thereafter introduce what is known as directly impeaching testimony. U. S. Brew. Co. vs. Ruddy, 104 App. 215; AflEd., 203 111. 306; Amer. H. & D. Co. vs. Hall, 208 111. 597. And this though he may, after testifying, have been called by the opposite party. E. St. L. Ey. Co. vs. O'Hara, 150 111. 580. — Witness lieqiiind to be Called: One required by law to pro- duce certain witnesses does not vouch for their truthfulness and integrity, and he may introduce proof of previous statements at variance with their testimony on material points, for the purpose of contradicting it. Thompson vs. Owen, 174 111. 229. Proponents of a will are required by law to produce the subscrib- ing witnesses in the circuit court, if alive and sane and within the jurisdiction of the court, and hence may prove the affidavits of such witnesses made in the county court for purpose of con- tradicting their testimony as given in the circuit court, where there is conflict. In re Will of Barry, 219 111. 391; Thompson vs. Owen, 174 111. 229. — Witness in Deposition : AVhen the deposition of a witness, taken by one party, is read in evidence by adverse party, the person whose deposition has been so taken and read will not be the witness of the party taking it, who will have the same right to contradict such witness as any other witness introduced by adverse party. City of Bloomington vs. Osterle, 139 111. 120; McCormick vs. Laster, 81 App. 316. — Pet'son Not Testifyiyig: Where defendant in action on bene- fit certificate draws out, on cross examination of plaintiff, an ad- mission that she had been told that a certain woman had reported having seen the missing husband of plaintiff within seven years after his disappearance, plaintiff is entitled to call witnesses to prove the reputation of such woman for truth and veracity was bad and that she had made conflicting statements of the matter. Kennedy vs. Modern Woodmen, 243 111. 560. Incidental Impeachment: — In General: While a party may not introduce witnesses to CONTRADICTION, ETC. 325 impeach the general reputation of his own witness, yet if the lat- ter has testified against the interest and expectation of the party calling him, his testimon.y may be contradicted by other wit- nesses called by the same party for that purpose, though inciden- tally the etfect of the testimony last called may be to show that the previous witness was unworthy of credit. Chi. City Ey. Co. vs. Gregory, 221 111. 591; Higler vs. Amer. Natl. Bank, 185 111. 565; Eockwood vs. Poinidstone, 38 111. 199; Waller vs. Carter, 8 App. 511; MeFarland vs. Ford, 32 App. 173; Tobin vs. Chi. City Ey. Co., 17 App. 82; Kaiifmaim vs. Johns, 156 App. 426; Pegram vs. Mutual Co., 159 App. 214; XIV 111. Notes 1151, § 287. — Adverse Party: A party who calls the adverse party as his witness is not bound by the mere conclusions of such witness, and only by his statement of fact in so far as he is entitled to credit, taking into consideration the reasonableness of the testimony, and all other proper tests of the credibility of witnesses and the weight of the evidence. A party is not concluded by the evidence of a witness introduced by him, whether a party or not. If a witness states facts against the interest of the party call- ing him, another Avitness may be called by same party to dis- prove those facts, as such facts are evidence in the case ; and the other witnesses are not called to directly discredit the first, but the impeachment of his credit is incidental only, and consequential. Lasher vs. Colton, 225 111. 234; U. S. Brew. Co. vs. Euddy, 203 111. 306; Highley vs. Amer. Natl. Bank, 185 111. 565; Eindskoph vs. Kuder, 145 111. 607; Mitchell vs. Sawyer, 115 111. 650. When adverse party is called, he may be examined in such way as to elicit the facts, even though the examination partake of the character of a cross examination. N. A. Eestaurant vs. McElligott, 227 111. 317. — Refreshing Memory of Witness: If a witness give testimony different from previous statements, so that his testimony is a mat- ter of surprise to party calling him, the party may refresh his memory by calling his attention to the former statements, either to refresh his memory or awaken his conscience. People vs. Cotton, 250 111. 338; People vs. Lukozus, 242 111. 102; Tijan vs. 111. Steel Co., 158 App. 30. But he cannot prove the statements either as independent evi- dence or for purpose of impeaching witness, who denies having made them, and who has not misrepresented the nature of his in- tended testimony. Chi. City'Ey. Co. vs. Gregory, 221 111. 591; Griffin vs. City of Chi- cago, 57 111. 317. (See Cross Examination — Eight to by Both Parties. ) When a witness has not given adverse testimony the party call- ing him is not permitted to prove that he had made statements which, if sworn to at the trial would tend to make out the case of the party calling him. Marugg vs. Kels, 146 App. 394. — Admission of ^Making Statement: Where witness admits hav- ing made statement, further proof thereof is unnecessary and im- proper. A. F. & S. F. Ey. Co. vs. Feehan, 149 111. 202; Fessenden vs. Doane, 89 App. 229. 326 CONTRADICTION, ETC. Inconsistent statements read to witness and admitted by him can- not be introduced in evidence. Swift & Co. vs. Madden, 165 111. 41. — Where Witness Does Not Remember: Statement admissible where witness does not remember making it. Bressler vs. People, 117 111. 422; Eay vs. Bell, 24 111. 444; Woods vs. Shaw, 48 III. 273 ; Con. Ice Mfg. Co. vs. Keifer, 134 111. 481. — Evasion: AVhere a witness neither directly admits nor de- nies making a statement inconsistent with his testimony, l)ut gives an indirect answer not amounting to an admission, the opposite party may prove the statement was made. CM. City Ey. Co. vs. Matthieson, 212 111. 292; McLeroth vs. Mager- stadt, 136 App. 361. Statement properly admitted where denial not made in manner indicated bv question. N. Chi. St. Ey. Co. vs. Southwick, 165 111. 494. Sustaining Witness: — 1)1 General: Proof of declarations of a witness out of court in corroboration of his testimony at the trial is not, as a general rule, admissible after he has been impeached or discredited. Chi. City Ey. Co. vs. Mathieson, 212 111. 292; Eeavely vs. Harris, 239 111. 526; Waller vs. People, 209 111. 284. It usually amounts onlv to hearsay evidence. Eeavely vs. Harris, 239 111. 526. — Lack of Motive: Where a witness is charged with testifying under the influence of some motive prompting him to make false statements, it may be shown in rebuttal that he had made similar statements at a time when the imputed motive did not exist, or when motives of interest would have induced him to make a dif- ferent statement of facts. Stolp vs. Blair, 68 111. 541 ; Waller vs. People, 209 111. 284 ; Gates vs. People, 14 111. 433. Exception does not include statements sought to be proven, given in evidence under oath at coroner's inquest. City of Chicago vs. Matthieson, 212 111. 246. — Independent Evidence Shoivinej Fahrication: "Where there is independent evidence showing that witness' account of the trans- action was a fabrication of recent date, proof of similar statements before motive existed is admissible. In such case, it may be shown he gave a similar account before its effect and operation could be seen. Browning vs. Jones, 52 App. 597. It is not necessary that the record should show a charge or allegation of an improper motive influencing witness to give tes- timony different from the contradictory statement, or a charge in terms, of a recent fabrication. If the inference, from the testi- mony, of a contradictory statement would be to stamp the testi- mony on the trial as arising from some motive or as a recent fabri- cation, evidence of similar statements before the motive had any existence or showing that the testimony is not a recent invention is admissible, but not otherwise. Chi. City Ey. Co. vs. Mathieson, 212 111. 292. — Where Contradiction hi Cross Examination: Such evidence is not admissible for the reason alone that it was sought to im- CONTRADICTION, ETC. 327 peach witness on cross examination, and that there was contra- dictory testimony in the case. Stolp vs. Blair, 68 111. 541. — Impeachment and Discrediting Witness: Nor where evi- dence of witness was only directly impeached and not by inde- pendent proof that, of itself, would indicate that his story was a recent fabrication. Browning vs. Jones, 52 App. 597. Nor for the reason only that witness has been impeached or dis- credited. Stolp vs. Blair, 68 111. 541. — Where Proof of Contradictory Statements OnJij: If two state- ments are contradictory, they cannot both be true, and the fact that they were made tends to show the witness is unreliable on account of uncertain memory or want of truthfulness. It is clear that such evidence could not be overcome or explained by proof that the witness, at some other time, made a statement consistent with his testimony. The witness is discredited by the fact that he has contradicted himself and related the transaction different ways, and to admit evidence that at some time he had made a state- ment consistent with his testimony would only show that at differ- ent times he had made diiferent statements about the same matter. The only way to meet evidence of a contradictory statement is to prove that the witness did not make it. Evidence of a previous statement consistent with the testimony of a witness is no more competent as evidence of the fact than the contradictory state- ment. For these reasons, proof of the declarations of a witness out of court, in corroboration of testimony given by him on the trial of a cause is, as a general rule, inadmissible, even after he has been impeached or discredited. Chi. City Ey. Co. vs. Matthieson, 212 111. 292 ; Stolp vs. Blair, 68 111. 541. — Support of General Character: A party cannot call and ex- amine witnesses to support the general character of another wit- ness, or himself, as a witness, for truth and veracity, until the character of the witness thus sought to be supported has been directly assailed. Mere contradictions or different versions by wit- nesses do not justify the application of the rule that evidence may be given favorably to a witness' character for truth. It is only when witnesses are called who testify that his general character for truth is bad, that witnesses may be introduced in support of his general character. Tedens vs. Schumers, 112 111. 263; Magee vs. People, 139 111. 138. But where character is assailed, evidence of good character for truth and veracity is admissible to confirm veracity of witness. Berdell vs. 'Berdell, 80 111. 604. General honesty and morality inadmissible to support character for veracity. Tedeus vs. Schumers, 112 111. 263. Witnesses need not have heard good reputation generally dis- cussed, since it might have been known without it being discussed. City of Chicago vs. Gurrell, 137 App. 377; Hays vs. Johnson, 92 App. 80; Overstreet vs. Dunlap, 56 App. 486. 328 CONVERSION Witnesses testifying to good reputation of party cannot be cross examined as to having heard of his having committed certain of- fenses. Jennings vs. People, 189 111. 320; Aiken vs. People, 183 111. 215. CONVERSION See Trover and Conversion. CONVEYANCE See Acknowledgments, Deeds, Delivery, Date, Consideration, Wills, Title. COPIES See Plats, Abstracts of Title, Best and Secondary, Objec- tions, Memorandum, Anti-Saloon Territory, Records, Corpora- tions. Private Writings: — Admissibility: Where a writing offered in evidence refers to another writing, the latter should also be put in at the same time, providing the reference is such as to make it probable that the latter is requisite to a full understanding of the effect of the former. Same principle would apply to another writing not ex- pressly referred to but necessary by the nature of the documents to a proper understanding of the one offered. IMuch, therefore, will depend upon the circumstances of each case and the character of each document, and no fixed rule can fairly be laid down. Trial court's discretion should control. So where a copy of a writing, the original of which has not been produced, but which is claimed to have been part of a conversation or interview between parties, and read by parties is offered the court's discretion must control. Merchants L. & T. Co. vs. Egan, 222 111. 494. — Contracts: Section 18 of Evidence act which authorizes the introduction of a copy, relates only to papers, entries and records mentioned in previous sections, and does not authorize the intro- duction of copies of contracts between parties. C. W. & V. Coal Co. vs. Moran, 210 111. 9. When written contract appears to have been changed, a copy of same is admissible to show change Vv^as made before execution. Lombard vs. Johnson, 76 111. 599. Where the copy of a written contract is offered in evidence, the law does not require that the person who made the copy should be produced and sworn before it can be read. It is sufficient if any witness testifies it is a copy, to admit it in evidence. Lombard vs. Johnson, 76 111. 599. Copies of an agreement and plat relating to land are not admis- sible in evidence when not certified or authenticated in any way, COPIES 32.0 and there is no evidence that they were copies of any papers, and the originals are not accounted for in any way. Blair vs. Carr, UV2 111. 3G2. The copy of an alleged agreement, made from a copy contained in another case, is not admissible as secondary evidence, in ab- sence of proof that the original document was ever in existence, or if in existence, that any reasonable effort was made to produce it. Crane Co. vs. Tierney, 175 111. 79. — Letters: Upon proof that they are copies, and of notice to opposite party, to whom they were sent, to produce the originals, copies of letters are admissible. Eichards vs. Gleniion, 71 111. 11. (See Best and Secondary.) — Telegrams: Copies of telegrams are inadmissible to prove contents of same, untjl proper foundation is laid by proving loss or destruction of originals. Matticsou vs. Noyes, 25 111. 591. (See Telegrams.) — Letter Press Copies: By statute, sworn and letter press copies of abstracts are admissible when opposite party is given reasonable opportunity to verify. Glos vs. Gary, 194 111. 214; Converse vs. Wead, 142 111. 132. Leaving a sworn copy with counsel at noon the day before trial and permitting same to remain until four o'clock the same day is giving reasonable opportunity. Sternheim vs. Burckey, 149 111. 241. (See Letter Press Copies.) — Corporate Records: Certified copy of papers, entries and ree^ ords of a corporation is original and not secondary evidence. C. B. & Q. Ey. Co. vs. Weber, 219 'ill. 372. Copy of corporate record incompetent where certificate does not state that the document is copy of record, and that party mak- ing the certificate is keeper of the records. Grand Lodge vs. Young, 123 App. G28. There are three modes by which such records may be proven in this state. First, a certified copy thereof; second, by a copy thereof proven to be such by a credible witness ; third, by the pro- duction of the original records. Cantwell vs. Stockmen 's Build. Union, 8S App. 247. — Power of Attorney: Erasures and interlineations in a cer- tified copy do not render same inadmissible. Holbrook vs. Nichols, 36 111. 161. AVhen official seal on original instrument is indicated on cer- tified copy of record by letters L. S. does not render copy inad- missible. Holbrook vs. Nichols, 36 111. 161. — Lease and Mortgage : A copy of a lease of its lines by a rail- road company, certified by the proper officer and bearing the seal of the corporation, is admissible as a "paper of the corporation." C. B. & Q. Ey. Co. vs. Weber, 219 111. 372. A certified copy of a mortgage, the original being lost, can not be impeached on ground of alteration of the original, before re- cording, by inserting a release of the homestead right, except upon clear and convincing evidence. In absence of such proof, it will 330 COPIES be presumed that the copy is a precise transcript of the original as it was executed and recorded. Blasey vs. Deliiis, 8(3 111. 558. Public Writings: — Land Office Entries: Under the Evidence act, the official certificate of a register or receiver of a land office of the United States to any fact or matter on record in his office, is evidence and competent to prove the fact so certified. Wyman vs. City of Chicago, 254 111. 202; Black vs. C. B. & Q. By. Co., 237 111. 500. The exemplification of the books and records of the general land office, certified by the recorder, is competent evidence of the truth of its recitals. Black vs. C. B. & Q. E. R. Co., 237 111. 500; Wilcox vs. Jackson, 109 111. 2(31; Seeley vs. Wells, 53 111. 120. An exemplification of an entry in the land office of the United States as admissible to show the location of a land warrant upon a tract of the public land by the holder of the same. Gormley vs. Uthe, 116 111. 643. An exemplification of any record or paper in the land office of the United States is of equal dignity with the original, and equally admissible where the original would be admitted. Lee vs. Getty, 26 111. 76. Certified copy of record of land office is admissible if certified by recorder of general land office, instead of by "any register or receiver of any land office." Wyman vs. City of Chicago, 254 111. 202. — Land Patents: Under section 96 of the school law of 1857, authorizing Auditor of public accounts, upon certain proof fur- nished, to issue in lieu of a patent for land, which has been lost or destroyed, "a duplicate copy" thereof, it is not necessary that such copy should have affixed to it the seal of state, to render it admissible in evidence for the same purposes for which the original might have been offered. Jackson vs. Berner, 48 111. 203. A certified copy of a patent for land, issued by the United States, may be ofi^ered in evidence. Lane vs. Bommelman, 17 111. 95. — Ordinances: Copies of ordinances and council proceedings, certified by the clerk are competent. Boyd vs. C. B. & Q. R. R. Co., 103 App. 199. Recorded copy of ordinance is inadmissible to show that ordi- nance had not been signed by president. Ry. Co. vs. Collison, 134 App. 443. Certified copies of ordinances, attested by clerk under seal of the corporation, is competent evidence of the passage of such ordi- nances. T. H. & I. R. Co. vs. Voelker, 129 111. 540; Pendergast vs. Peru, 20 111. 52; Prairie Du Eocher vs. Milling Co., 248 111. 57. Ordinances are properly proven by copies sworn to upon the trial, by witness as having been compared by him with the origi- nals found to be true and correct. And this dispenses with the COPIES 331 necessity of producing tlie originals and makes copies of original ordinances evidence witiiout any certificate whatever. C. C. C. & St. L. E. K. Co. vs. Bender, 69 App. 2G2 ; City of Chicago vs. English, 80 App. 163. Ordinances of city of foreign state may be proven by sworn copies. Ey. Co. vs. Shires, 108 111. 617. Production of duly certified copy of an ordinance affords pnma facie evidence that every step has been taken with reference to it, to make it a valid ordinance. Lindsay vs. City of Chicago, 115 111. 120 ; I. C. E, E. Co. vs. Collison, 134 App. 443. Duly certified copy of a special assessment ordinance, made to correspond with original ortiinance by striking out printed parts and substituting proper provisions by pen and ink, is admissible without extrinsic evidence of change. Gage vs. City of Chicago, 225 111. 218; Gage vs. City of Chicago, 223 111. 602. — Bond Registers: Copy proven by clerk sworn as witness, testifying that he examined and compared wdth original register, and found it correct, admissible. Is original evidence and does not depend upon the fact that record itself is lost or destroyed. E. St. Louis vs. Freels, 17 App. 339. Copies of all bonds legally deposited in the Secretary's office, when certified by him and authenticated by the seal of his office, are admissi])le in evidence the same as originals, even though the latter are not lost. '' -'^j^ Eamsey vs. People, 197 111. 572, — Registers of Births, Deaths and Marriages: See Registers OF Births, Deaths and ]\Iarriages. — Records of County Clerk and Recorder: Sworn copies of records of county clerks are admissible. Glos vs. Boetticher, 193 111. 534. In proceeding to set aside tax deed as cloud upon title, sworn copies of original records and papers in county clerk's office, upon which deed was based, are admissible. Glos vs. Holmes, 228 111. 436. Sworn copies of the papers and records which have been admitted in evidence, cannot be impeached by the oral testimony of witnesses who have examined the original papers and records, where original papers and records are available. Glos vs. Holmes, 228 111. 436. Where an affidavit for the introduction of a copy of a deed is positive in its terms and meets all the requirements of the statute, the opposite party is not entitled to cross examine the affiant as to the truth of the affidavit. Glos vs. Garrett, 219 111. 208. In proceeding to set aside a tax deed, a copy of the affidavit for notice by publication is properly admitted, whether sufficiently certified by county clerk or not, where deputy clerk producing 332 COPIES same testifies that he has examined the records and the copy offered iu evidence, and compared same, and that such copy is a true one. Glos vs. Boettcher, 193 111. 534. Sworn copy is good secondary evidence of lost unrecorded deed. Gold vs. Bressler, 105 111. 419. A certified copy of a deed is admissible to show ownership and control of the property. Eichardson vs. Nelson, 221 111. 255. Certified copy of a deed properly acknowledged under laws of a foreign state, is admissible in evidence though certificate is not sufficient under laws of Illinois. McCraney vs. Glos, 222 111. 631. Parol evidence of a certified copy of a deed is never admissible. Hardin vs. Forsythe, 99 111. 312. A certified copy of the record of a deed is admissible upon affi- davit of proper person that the deed is lost, that he has made diligent search therefor but has been unable to find it. Pardie vs. Lindley, 31 111. 174. It is sufficient if affidavit states that affiant did not have deed, had never had it, and did not know where it was. Nixon vs. Cobleigh, 52 111. 387; Fisk vs. Kissane, 42 111. 87. A certified copy of a chattel mortgage is competent for the pur- pose of proving additions made to the original instrument, already in evidence, since its execution. Kimball Co. vs. Piper, 111 App. 82. A copy of a foreign will, though recorded in Illinois, is not con- structive notice of the will, unless authenticated and certified in the manner required by section 9 of the act on wills. Harrison vs. Weatherby, 180 111. 418. (See Title.) In proceeding for partition and to set aside a deed for alleged undue influence, certified copies of foreign wills made by grantor, one of which was made long before the execution of the deed, and the other just before her death, are admissible for purpose of show- ing grantor had entertained a purpose of disposing of her property similar to that expressed in the deed, and as explaining the trans- fer. Bishop vs. Hilliard, 227 HI. 382. An objection that a certified copy of a will is not admissible in evidence because no court was shown to have been in existence to make the order of probate attached to the copy is without force, where the order shows in what probate court it was rendered and by what judge, the date, and jurisdiction of the parties. Turner vs. Hause, 199 111. 465. — Internal Revenue Collector: In action for unlawful sale of intoxicating liquors, an examined copy of the collector of Internal Revenue's record, showing payment by defendant of retail malt taxes, is admissible on issue of the issuance of license. People vs. Peterson, 153 App. 480. Examined copy of internal revenue record is sufficient to prove who are tax payers. People vs. Joyce, 154 App. 13. — Civil Service Commission: The only competent evidence of the rules of the civil service commission are the original rules adopted, or a copy proven to be such by a witness who has com- COPIES 33;j pared such copy with original rules and knows that such copy is correct. City of Chicago vs. Fitz Morris, 138 App. 239. — Court Records: Copy of final order of Supreme Court, show- ing that a judgment had been affirmed on the day alleged in the declaration, between the same parties, and from the same county, is prima facie evidence that judgment appealed from was affirmed. Pearl vs. Wellman, 11 111. 352. AVhere depositions taken in one cause Avere destroyed by fire, and in second suit, where parties and subject matter were identical with the first, and agreement was made to admit transcript of record in suit filed in supreme court, but which was not allowed to be withdrawn, certified copy of same, made by clerk of supreme court was competent. Dowden vs. Wilson, 108 111. 257. Admitting a certified copy of a record of evidence upon bill to remove a tax deed as cloud is not error, upon ground that the clerk certified to his conclusion that the paper was a true copy, as appeared from the records and files of his office, so far as it related to the premises described in the copy, where the only material fact relied upon to invalidate the tax deed is established by the portion of the record certified to. Glos vs. Dyche, 214 111. 417. If the certificate of the clerk, which constitutes the process for a tax sale, is dated, the date is evidence of the time the certificate was made, without regard to the question whether it is or is not necessary to date such a certificate. Glos vs. Dyche, 214 111. 417. In absence of statutory authority, a clerk having custody of rec- ords may certify that his copy of the records is a true copy, but he can not properly certify to his conclusions as to facts shown or not shown by the records. GlosVs. Dyche, 214 111. 417. A certified copy of the records of the Supreme Court of the United States, in another case still pending in that court, is prop- erly excluded. Sanitary District vs. Pearce, 110 App. 592. — Public Officials: Examined copy admissible to establish rec- ord of public official. People vs. Stone, 154 App. 7; Norton vs. E. St. Louis, 36 App. 171. — Judgments: A judgment may be proven by a sworn copy of the judgment docket. The absence of placita and recitals as to the court in which the purported judgment was rendered does not afl^ect the sufficiency of the proof made by such document where no such special objection was interposed. Sycamore vs. Berg, 127 App. 369. And this applies to foreign judgments. Thompson vs. Mason, 4 App. 452. Authenticated copy of judgment may be introduced to prove existence of same. People vs. Paul, 143 App. 566. In action on appeal bond, it is proper to admit in evidence a certified copy of the judgment for purpose of establishing, prima 334 CORONER'S INQUEST facie, the identity of the judgment affirmed with that recited in the bond, without requiring a certilied copy of ail proceedings. Eehin vs. Halverson, 197 111. 378, — yaiuralization Proceedings: Copy of record of naturaliza- tion proceedings of sister state, certified by clerk, with seal of court attached, but bearing no certificate of the presiding judge, is inadmissible. Brookett vs. People, 64 111. 170. — Depositions: AVhen deposition has been lost, court may, upon satisfactory showing, give leave to file copy and same is admissible. Gage vs. Eddy, 167 111. 102; Dowden vs. Wilson, 108 111. 257. — Ship Enrollments: A copy of the last enrollment of a ves- sel, duly certified by collector of customs, is competent on question of ownership of vessel. Vincent vs. Soper Lbr. Co., 113 App. 463; Mer. Nav. Co. vs. Amsden, 25 App. 307. — Appointment of Administrator: The appointment of one as administrator of an estate, and where that fact is put in issue, may be shown by an examined copy of the record of the appointment, satisfactorily proven bv oral testimony to be a true copy thereof. Transit Co. vs. Shaeklett, 119 111. 232. — Unacknowledged Instruments: A contract to make title to land may be recorcied without any acknowledgment or proof of its execution, but a certified copy of the record is not evidence until instrument is acknowledged and proved as the law requires. McCorniiek vs. Evans, 33 111. 328; Eeed vs. Kemp, 16 111. 445. The record of an unacknowledged and unproved instrument is available onlv for purpose of showing notice. Winter vs. Dibble, 251 111. 200. A certified copy of the record of an unacknowledged instrument does not prove contents of instrument, where there is no proof of execution of such instrument and connecting instrument executed with one recorded. Winter vs. Dibble, 251 111. 200. — No Seal: That a certified copy of the record of a release showed no seal is not sufficient to overcome the force of evidence that the release was under seal, based upon original instrument showing a seal in form of a scroll, and testimony of one witness that same was put upon the instrument at the time of its execution. Pease vs. Sanderson, 188 111. 597. — Stirveys: The testimony of a witness that an uncertified paper purporting to be a copy of a public record corresponds with a copy formerly riiade by him, and that it was furnished him as a certified copy by the custodian of the record, is not sufficient to prove the copy, and will not cure its erroneous admission in evidence. Wiggins Ferry Co. vs. I. & St. L. K. Co.. 163 111. 238. CORONER'S INQUEST Admissibility of Verdict in Subsequent Proceedings: — In General: Post niortem inquisitions made under the authority of the coroner are admissible in evidence. Grand Lodge vs. Wieting, 168 111. 408. CORONER'S INQUEST 835 The coroner's inquest over a dead person is required by statute to be sealed up and returned to the ehn-k of the cii-euit court. It thus becomes a public record of the county and as such it is com- petent evidence in another proceeding, tending to prove any mat- ter properly before the coroner, which appears on the face of the inquest. Foster vs. Shepherd, 258 111. 164; Stollery vs. Cieero St. Ey. Co., 243 111. 290; U. S. Lite Ins. Co. vs. Voehe, 129 111. 557; Nat. Wood Co. vs. Smith, 108 App. 477. A coroner's verdict is competent evidence of any fact properly included therein, and within the scope of the inquiry. Variety Mfg. Co. vs. Laudaker, 129 App. 630. — Actions for Negligence: A coroner's verdict as to the man- ner and cause of death is competent in actions for negligence. Stollery vs. Cicero St. Ry. Co., 243 111. 290 ; P. C. C. & St. L. Ry. Co. vs. McGrath, 115 111. "172; Cox vs. C. & N. Ey. Co., 92 App. 15; O 'Donnell vs. C. & A. Ey. Co., 127 App. 432. A coroner is given no power by the statute to make a finding on the question of the negligence of the injured or killed employe or of his employer, with a view to fixing or defeating personal lia- bility against the employer. A verdict imputing negligence to the employer is not admissible in evidence against such employer in action for damages. (In this case verdict in question contained objectionable finding as follows: "Said Crankshaft and pit was unprotected.") Eolloff vs. Luer Bros., 158 App, 614. But held error to refuse to admit verdict reciting that deceased came to his death from being burned or scalded at the defendant's works the day before his death, and that the injuries were inflicted through his own carelessness. Natl. Woodenware Co. vs. Smith, 108 App. 477. Verdict that deceased came to his death by being run over by engine of defendant while it was "in the act of making a running switch on the back track, etc." admissible. Newell vs. C. C. C. & St. L. By. Co., 179 App. 497. So it was held that verdict containing following: "We further find that the aforesaid company is responsible for said death on account of fast running and the view to the said track being ob- structed by cars and depot" was admissible. Cox vs. C. & N. W. Ey. Co., 92 App. 15. And verdict reciting ' ' her death was the result of an unavoid- able accident" held admissible. Calloway vs. Spurgeon, 63 App. 571. So where court refused to admit all of verdict which recited "and acting under the orders of the foreman of the section to which he belonged," held reversible error. O 'Donnell vs. C. & A. Ey. Co., 127 App. 432. Held reversible error to admit verdict containing the following : "And we the jury find that the railroad company is responsible, and that the train was running at a fast rate of speed and that the engineer did not blow his whistle until after the deceased was C. M. & St. p. Ey. Co. vs. Staff, 46 App. 499; see also L. S. & M. S. Ey. Co. vs. Taylor, 46 App. 596. 336 CORONER'S INQUEST — Actions an Insurance Policy: In action on mutual benefit policy and defense is death of insured in manner in which policy prohibits recovery for, coroner's verdict is admissible. Grand Lodge vs. Wieting, 168 111. 408; Knight Templars vs. Crayton, 209 111. 550; Laudholm vs. Mystic Workers, 164 App. 472. A coroner's verdict as to the manner in which death resulted is competent in action upon accident insurance policy. Genua vs. Cont. Cas. Co., 167 App. 413 ; Lundholm vs. Mystic Work- ers, 164 App. 472. — Bill to Contest Will: The verdict of a coroner's jury at an inquest held on the body of a testator may be introduced in evi- dence in proceeding to set aside his will for the purpose of showmg that such testator committed suicide. Pyle vs. Pyle, 158 111. 289. — Admissible in Entirety: A coroner's verdict should be re- ceived in the entirety or rejected in the entirety, although the court may, in a proper case, instruct the jury to disregard certain por- tions thereof, viz., the responsibility. r. o .r ^ r. O'Donnell vs. C. & A. Ey. Co., 127 App. 432; Cox vs. C. & N. W. By. Co., 92 App. 15. A coroner s verdict is competent as a whole if it contains state- ments beyond the province of such a jury. The party objecting thereto should ask instructions of the court safe-guardmg his rights to the extent of any portions which were outside the province of such verdict. City of Chicago vs. Cohen, 139 App. 244. — Name and Seal of Coroner: The fact that verdict is not shown to have been filed with the circuit clerk and also because it has coroner's name and seal attached does not render the verdict inadmissible. Stollerry vs. Cicero St. Ky. Co., 243 111. 290. '/.! — Proceeding in Sister State: AVhere writing lacks essentials of an inquistition under our statute or at common law, and the statutes of sister state are not in proof, such writing is inadmissible. Natl. Gross Loge vs. Jung, 65 App. 313. Weight and Effect of Verdict: The legitimate object of the inquest is fulfilled in finding simply the cause of death. P. C. C. & St. L. Ey. Co. vs. McGath, 115 111. 172. "Within the scope of the jury's authority, their verdict becomes a public document and competent evidence ; beyond that, their mere expression of opinion as to the guilt or responsibility causing the death and cannot be of any binding force against such party in subsequent proceedings. Cox vs. C. & N. W. Ey. Co., 92 App. 15 ; Calloway vs. Spurgeon, 63 App. 571; C. M. & St. P. Ey. Co. vs. Staff, 46 App. 506. A verdict of a coroner's jury is not conclusive. U. S. Life Ins. Co. vs. Voche, 129 111. 557; Novitsky vs. Knickerbocker Ice Co., 180 App. 188. But was held admissible "for the purpose of showing prima facie that deceased committed suicide." Pyle vs. Pyle, 158 111. 289. A verdict by a jury impaneled by a coroner is not conclusive of the facts found, nor does such a verdict establish prima facie the CORONER'S INQUEST 337 fact found, but the same is merely evideuee Avhich tends to show the existence of the fact in question. Peekhain vs. Modern Woodmen, 151 Ajip. 95. Compliance of coroner with statute requiring testimony of wit- ness to be written and signed, presumed. Overtoon vs. C. & E. I. Co., 181 111. 323. Admissibility of Depositions: — In General: The verdict has somewhat the dignity of the court proceeding but the depositions taken at a coroner's inquest are mere ex parte statements and incompetent for any purpose other than contradiction. Knight Templars vs. Crayton, 209 111. 550; P. C. C. & St. L, Ey. Co. vs. McGrath, 115 III 172; Gooding vs. U. S. Life Ins. Co., 46 App. 307; Grant vs. C. & N". W. Ey. Co., 176 App. 292; Novitsky vs. Knickerbocker Ice Co., 180 App. 188. — The Affidavit: The evidence of a witness taken at a coroner's inquest is competent by way of impeachment Mdien he signed same and admits such signing. Chi. City Ey. Co. vs. Jorden, 116 App. 650; Con. Ice Mach. Co. vs. Keifer, 134 111. 481. An affidavit used at coroner's inquest may upon proper foun- dation laid, be admitted for the purpose of contradicting the wit- ness who made it, but it is error to permit it to be taken to the jury room. Fein vs. Covenant Mntnal Ins. Co., 60 App. 274. The deposition of a witness at a coroner's inquest is not admis- sible in subsequent proceeding though such witness is then de- ceased P. C. C. & St. L. Ey. Co. vs. McGrath, 115 111. 172. — Stenographic Notes: See Stenographer's Notes. — Parol Evidence: Parol evidence is admissible to prove what one accused of crime voluntarily disclosed before coroner's jury if it is shown that his examination was not reduced to writing. Lyons vs. People, 137 111. 602; People vs. Anderson, 239 111. 168. — Admissions of Accused: If a party testifying before a cor- oner or committing magistrate is actually under arrest, though it may be without warrant, his testimony is inadmissible. But this rule applies where the accused party is put on his oath and sworn and examined, not on his own motion, but on the motion of the prosecution. Statements made under such circumstances may not only be unreliable, but inquisitorial in their character. Where a man arrested by an officer without a warrant upon suspicion of h-aving committed murder is compelled to answer under oath as a witness at a coroner's inquest, statements which he thus makes are not admissible against him on his trial for the murder. The thing prohibited by the rule is ' ' the special interrogation of the accused — the converting him, whether willing or not, into a witness against himself; assuming his guilt before proof, and subjecting him to an interrogation conducted on that hypothesis." Bat it is other- wise where the statements made are voluntary and where the oath taken is voluntary. Where a prisoner may testify on his own behalf in all criminal proceedings if he desires, his testimony taken under oath at the preliminary examination, if it appears to have Ev. — 2 2 338 CORPORATIONS been freely given, without compulsion or promise, is admissible as a confession. Lyous vs. People, 137 III. C02; People vs. Anderson, 2.39 111. 168. On the trial of one for murck^', several of the People's witnesses stated, some on their direct examination and some on their re- examination, over defendant's objection, what they testified to at the coroner's inquest, and like statements were made by several of the witnesses on their cross examination. The defendant asked this instruction ' ' The court instructs the jury what any witness or witnesses may have testified before the coroner's incjuest is no evidence of the guilt of the defendant in this case." Refusal held error. Purdy vs. People, 140 111. 46; Eitter vs. People, 130 111. 255. CORPORATIONS See Parol, Seals, Subscription, Residence, Admissions and Declarations, Records, Eminent Domain, Insurance, Best and Secondary, Admissibility of Evidence: — Articles of Incorporation: Certificate of complete organi- zation, executed and recorded as provided by law, is prima facie evidence of existence. Gunderson vs. 111. T. & S. Bank, 199 111. 422. Where a plea denying corporate existence of plaintiff suing as a corporation is pleaded, the original articles of association, prop- erly recorded, may be read in evidence, without certificate of clerk that it is a true copv. Fortiu vs. U. S. W. E. Co., 48 111. 451. In suit by corporation, a certified copy of articles of incorpora- tion is admissible on part of defendant, where its declaration al- leges such incorporation. G. W. Tel. Co. vs. Hears, 154 111. 437. — Articles of Consolidation: In suit against consolidated rail- way company, copies of articles of consolidation on file in office of Secretary of State, duly certified by such Secretary of State, and authenticated by his seal of office, are competent evidence to prove the consolidation, the same as the original articles would be. C. C. & I. C. B. Co. vs. Skidamore, 69 111. 566. — Bill of Sale: An instrument purporting to be a bill of sale from a corporation, executed by its vice-president, with the cor- porate seal attached, is admissible to show transfer of property therein mentioned, although there is no proof that the vice-presi- dent was authorized to execute it. Springer vs. Bigford, 160 111. 495. • ' — Certificate of Comptroller of Currency: Is properly received in evidence, and proof sufficient to establish, at least prima facie, the existence of National Bank. Mix vs. Natl. Bank, 91 111. 20. — Contracts; Contract not under seal is admissible if subject is within powers of corporation. A corporation may bind itself, CORPORATIONS 339 in a matter within its charter powers, by a writing not under seal, to same extent as an individual may. Sieberliug vs. Miller, 207 111. 443; Greeu vs. Blodgett, 159 111 169- XI 111. Notes 1105, § 430. A contract purporting to be entered into by incorporated com- panies is admissible, though no proof is made of legality of or- ganization. Smith vs. Mayfield, 163 111. 447; W. S. Auction Co. vs. Com. Ins. Co., 186 111. 156; Brown vs. Mortgage Co., 110 111. 235; Hudson vs. Green Hill Cemetery, 113 111. 618. A recovery may be had under the common counts though contract is ^(Itra vires where it has been executedior benefits accepted there- under. U. S. Brg. Co. vs. Dolese, 259 111. 274. A contract by a corporation is admissible although the word "manufacturing," used in name of corporation, is written "Mfg." in the contract, and although contract is not under seal of cor- poration. Sieberling vs. Miller, 207 111. 443. A contract made by an individual under a corporate name is not void though there has been no incorporation and such contract is admissible under proper averment. Turnes vs. Johnson, 179 App. 32. — Deeds: In ejectment by a corporation, entitled to hold real estate for any purpose, the cleeds under which it claims title can- not be denied admission in evidence upon alleged ground that the corporation exceeded its powers in taking conveyances, since that question can be raised onlv by the state. C. & A. E. E. Co. vs. keegan, 185 111. 70. — Execution of Bonds: As tending to show that a bond exe- cuted for a luml)er company l)y its salesman was executed to se- cure a sale of lumber to a contractor, evidence that similar bonds had been executed by the company, and the company, in a subse- quent letter, agreed to carry out the bond, is admissible. A letter from a corporation purporting to ratify a bond exe- cuted by its agents is admissible over objection that it is "incom- petent, irrelevant, and immaterial," not to aid the validity of the bond, but as tending to prove the corporation executed the bond. Central Lbr. Co. vs. Kelter, 201 111. 503. — Jueliciul Deerees Against Corporation: In suit against a stockholder of an insurance company, based upon a decree against the company on a policy of insurance and loss by fire, for ascer- tain sum, no recovery can be had without proof of execution of such policy as is described in the declaration, and of a loss by fire. The recitals in the decree, of these facts, are no evidence against the stockholder, who was no party to the suit in which it was ren- dered. A decree against a corporation, finding its liability and the amount of its indebtedness, is not admissible against a stock- holder of such corporation who was no party to the decree, either actually or constructively. ' Chestnut vs. Pennell, 92 111. 55. — Leases: A copy of lease of lines of railroad company, certi- fied by the proper officers, and bearing seal of corporation, is ad- 340 CORPORATIONS missible as a "paper" of the corporation, within meaning of that term as used in Section 15 of Evidence act. C. B. & Q. Ey. €o. vs. Weber, 219 111. 372 ; Cf . C. W. & V. Coal Co. vs. Moran, 210 111. 9. — Letters: Letters by ollicers are admissible against corpora- tion, where it appears same were approved by and written under direction of such corporation. U. S. Co. vs. Teniiy, 200 111. 349. — Opinion Evidence: Proof of papers, entries and records of a private corporation, in its possession, cannot be shown by opinion or conclusion of a witness. The evidence must be primary, original evidence. Mandel vs. Land Co., 154 111. 177. — Parol Evidence: Where there is misnomer of corporation or a variance in the writing from exact corporate name, parol proof is admissible under proper averment to establish identity. Mall. I. E. Co. vs. Pusey, 244 111. 184; Board of Education vs. Green- baum, 39 III. 610; Chadsey vs. McCreery, 27 111. 252; Peatie vs. Wabash E. Co., 18 111. 88. Where it is doubtful whether the contract is to bind the princi- pal or agent, extrinsic evidence may be received to ascertain who was to be bound as principal. Keeley Brg. Co. vs. Decorating Co., 194 111. 580; Bran vs. Hess Co., 187 111. 283. But not if contract clearly binds the agent. Vail vs. N. W. Ins. Co., 192 111. 567; O. & M, Ey. Co. vs. Middleton, 20 111. 629. Parol evidence is admissible to show that an instrument executed by an ofBcer of a corporation is the obligation of the corporation and not of the officer executing snme. Scanlon vs. Keith, 102 111. 634; Decowski vs. Grabarski, 181 App. 279. The rule that parol evidence is inadmissible to vary terms of written contract applies to stock subscription contracts. Jewell vs. E. E. Paper Co., 101 111. 57; Conwith vs. Culver, 69 111. 502. (See Subscription.) Parol evidence is admissible to show that there was no delivery of a subscription to stock of a corporation, left in hands of solicit- ing agent, to be withheld until investigation could be made and directions given for the delivery. G. W. Tel. Co. vs. Lowenthal, 154 111. 261. In action against a corporation to recover under a special con- tract, which was evidenced by a resolution of the board of trus- tees of the corporation, parol evidence is not admissible in behalf of the plaintiff to prove the contents of such resolution, without notice to defendant to produce it, or the usual preliminary proof of loss. Trustees vs. Shaffer, 63 111. 243. While a transfer of stock, absolute in form, may be shown by parol evidence to really be a pledge to secure a debt, yet when that kind of evidence is relied upon, it ought to be clear and convinc- ing. Travers vs. Leopold, 124 111. 431. ■ — Corporate Records and Books: The books of a private cor- poration, as between members of the corporation, are admissible CORPORATIONS 341 as public books, as evidence of the election of officers of the cor- poration, and of other acts and proceedings. Trainor vs. B. & L. Assn., 204 111. 616; Plagge vs. 111. Con., 177 111. 431. The books of a corporation are competent evidence for the pur- pose of showing its acts and proceedings. Such books are sufficient to show, prima facie, the prerequisites of a statute have been com- plied with, so as to give the corporation an existence. Eider vs. A. & S. Ey. Co., 13 111. 517. Corporation books are not per se admissible in evidence against a stranger. The general rule is that corporate books are evidence between members but not against strangers, and this on the prin- ciple that a party cannot make evidence for himself and against a third party. Chase vs. S. & C. E. E. Co., 38 111. 215 ; Prot. Ins. Co. vs. Dill, 91 111. 174. Resolution of common council of city instructing street commis- sioner to notify parties to repair sidewalk, is admissible on ques- tion whether city had notice of defect in walk. City of Aurora vs. Pennington, 92 111. 564. The subscription book with the orders of the company requiring payment are competent evidence under the general count. Neither notice of calls nor demand of pavment need be proven. Peak vs. Wabash Ey. Co., 18 111. 88. In action by corporation for subscription to stock payable upon condition that corporation raise a certain sum, the books of the corporation are not admissible against defendant to show that such condition precedent had been performed, unless defendant is shown to he a meml)er of the corporation. Chase vs. Ey. Co., 38 111. 215. The record or journal of the acts and proceedings of a corpora- tion are admissible in evidence against a stockholder in suit to enforce his personal liability of the corporation. It is competent evidence to show an acceptance of an amendment of the charter, without first showing that the persons accepting the same were directors, when they are named as such in the journal. Dows vs. Naper, 91 111. 44. Records of the transactions of board of directors may be proven, first by duly certified copies thereof; second, by a copy thereof, proved to be such by a credible witness ; third, by the production of the original records. Cantwell vs. B. & L. Sav. Union, 88 App. 247, The records are competent evidence that the full capital stock has been subscribed, and together with the final certificate of com- plete incorporation, issued by Secretary of State, are prima facie proof of such fact. McCoy vs. Columbian Exposition, 186 111. 356. A minute book kept by a subordinate lodge containing entries required to be made by it in the performance of its agency for the society, is competent where it contains relevant admissions against such society. Plattdeutsehe Grot Glide vs. Eoss, 117 App. 247. In action against corporation for rent, a resolution providing 342 CORPORATIONS for relinquishment of lease is admissible when corporation pleads eviction in defense, on question of good faith of such defense. McCormick vs. Wall .Paper Co., 147 App. 487. Minutes of a stockholders' meeting, written upon a sheet of paper, signed by the secretary and bearing the initials of the president of the corporation, are competent, where it does not appear that they were ever transcribed in a record book. Chott vs. Tivoli Amusement Co., 114 App. 178. In foreclosure proceeding by building and loan association against a member, the books of the association are admissil)le to prove al- leged indebtedness, only after such preliminary proof as is re- quired to entitle private books of account to admission. If the party who made the entries in a book has no personal knowledge of their correctness, but made them from memoranda furnished by another, the latter must testify to the correctness of the items, or there must be other evidence of such fact to entitle the books to admission in evidence. — : ■ Trainor vs. B. & L. Assn., 204 111. 616. — To Show Value of Stock: Where such stock has no ascer- tainable market value, it is competent to admit value of prop- erty of corporation, assets and liaoility. McDonald vs. Donahay, 196 111. 133; Stnrgis vs. Keith, 57 111. 451. Opinion of one who has long been an officer of a corporation, is competent as to value of corporate stock. Bordener vs. Depley, 142 App. 526. Under an allegation in the bill that the stock of a corporation is unpaid, proof of facts amounting to fraudulent overvaluation of the property taken for it may be introduced, although fraud is not, in terms, charged in the bill. Coleman vs. Howe, 154 111. 458. The fair market value of shares of stock in a corporation, under Inheritance Tax law, is not what they would bring on a forced sale if all should be put on the market at once, but what they would bring at a sale at or about the time of the testator's death, after due notice, under fair conditions, and in the ordinary course of business, and in arriving at such value, the appraiser and court are not limited to market quotations, but may consider quota- tions on the public exchanges, private sales, testimony as to actual value, and their own knowledge of the subject. Walker vs. People, 192 111. 106. Weight and Sufficiency of Evidence: — 0)1 Pica of Aid Ticl Corijorafion : Under plea of mil ticl cor- poration, plaintiff need only show an organization in fact, and a user of corporate franchises. Mitchell vs. Deeds, 49 111. 416; Marsh vs. Astora Lodge, 27 HI. 421; Lewiston vs. Proctor, 27 111. 414; Hamilton vs. Carthage, 24 111. 22; Mendota vs. Thompson, 20 111. 197; XI 111. Notes 1053, § 50. Proof of existence of corporation de facto is sufficient on plea of nul tiel corporation. Marshall vs. Keach, 227 111. 35; Cozzens vs. Brick Co., 166 111. 213. — To Estahlish Corporate Existence: Wliere legality of cor- poration is not put in issue, it is sufficient show corporation de facto onlv. Scanlan vs. Keith, 102 111. 634. CORPORATIONS 343 And fact that person did business with corporation as such is sufficient proof of dc facto corporation. Scanlau vs. Keith, 102 111. 634. In order that there should be a de facto corporation, two things are essential. First, there must be law under which the corporation might lawfully be created; second, user. Where tlie law author- izes a corporation and there is an attempt in good faith to organize, and corporate functions are thereupon exercised, there is a cor- poration de facto. The legal existence of which cannot ordinarily be questioned collaterally. Amer. L. & T. Co.' vs. M. & E. E. E. Co., 157 111. G41 ; Mitchell vs. Deeds, 49 111. 416. Vl ,Ui A plea denying the averment that plaintiff is a corporation, is overcome by proof that defendant sold plaintiff laud and executed to it a deed of conveyance, thus recognizing it as a corporate body. Wood vs. Kingston Coal Co., 48 111. 356. The execution and delivery of an instrument by defendant to plaintiff as a corporation, is sufficient evidence, of plaintiff's cor- porate existence, notwithstanding defendant's plea of a nul tiel corporation, and no}i est fad am, where the evidence shows the ex- ecution of the instrument by defendant, and there is no evidence to overcome plaintiff's prima facie corporate existence. W. S. Auction Co. vs. Conn. Ins. Co., 186 111. 156; Smith vs. Mayfield, 163 111. 447; Ward vs. M. & N. Ey. Co., 119 111. 287; Hudson vs. Green Hill Seminary, 113 111. 618; Brown vs. Mortgage Co., 110 111. 235. In absence of countervailing evidence, proof of actual exercise and enjoyment of corporate powers and functions, sufficiently supports "an allegation in an indictment that the owner of the ar- ticle alleged to have been stolen was a corporation, organized under the laws of Illinois, as proof of user is, by statute, made prima facie evidence of corporate existence. Waller vs. People, 175 111. 221; Sykes vs. People, 132 HI. 32. But oral proof as to fact of being a corporation is improper. People vs. Burger, 259 111. 284. Where a party, as a corporation, appeals from the judgment of a justice of the" peace, no other proof of its corporate existence than that afforded by its appeal bond is necessary. Gerlinger Co. vs. Labada, 41 App. 283. In incorporation under special act, proof of organization in fact, and user is sufficient proof of existence of corporation, when same is attacked collaterally. Marsh vs. Astoria Lodge, 27 111. 420. The organization certificate of a national bank, certified and sealed by the comptroller of currency, is sufficient evidence of its corporate existence. Mix vs. Nat '1. Bank, 91 111. 20. ■ . Parol evidence that a party was a corporation, duly organized, and that it had elected officers, and was doing business as a cor- poration, if introduced without objection, is sufficient to establish the existence of the corporation. Doyle vs. Douglas Mach. Co., 73 111. 273. V To prove the existence of a corporation, it is sufficient to pro- 344 COllPORATIONS duce the charter and prove acts done under it in conformity with it. Written proof that all the preliminary steps, etc., were taken, is not necessary. President vs. Thompson, 20 111. 197. The certificate of the Secretary of the State in which the cor- poration is organized, and a copy of the orignal record in his office, properly certified, with evidence showing that it had assumed to act as a corporation and to do business in its corporate capacity, make a prima facie case of the existence of a dc facto corporation. Concord Apart. House Co. vs. Alaska Eef. Co., 78 App. 682. An allegation, in indictment of an express company's agent, for embezzlement, that the company is a joint stock association, and a corporation under the laws of New York, is i^rima facie estab- lished by proof that it had a known and recognized de facto exist- ence in Illinois as a corporation. Kossakowski vs. People, 177 111. 563. Under indictment charging defendants with conspiracy to de- fraud certain alleged foreign insurance corporations of goods and property, uncontradicted evidence that such companies made and issued policies, and after loss, adjusted the same and paid over the money, is sufficient proof of corporate existence. Graff vs. People, 208 111. 312. The general rule is that in all collateral proceedings at the suit of an alleged corporation, the introduction of the charter of the company, and proof that the company is exercising the franchises granted, afford sufficient evidence upon the question of the corpo- rate existence of the company. In such case, it is not required to show the company is a corporation de jure. P. & P. U. Ey. Co. vs. P. & F. Ey. Co., 105 111. 110. Introduction of charter, with proof of exercise of franchises and powers thereby granted, is sufficient to establish existence of a corporation dc facto. St L. A. & T. H. Ey. Co. vs. Bell Ey. Co., 158 111. 390; Dean & Son vs. ij. B. Conkey Co., 180 App. 162. And where such facts are shown, affirmative proof that a corpo- ration was organized and in operation, as required by the consti- tution of 1870, within ten days after that took effect is not neces- sary to establish de facto corporation. St. L. A. & T. H. Ey. Co. vs. Bell Ey. Co., 158 111. 390; St. L. & C. Ey. Co. vs. Bell. Ey. Co., 159 111. 544. Attempting in good faith to comply with corporation law, ob- taining certiticate, electing officers, acting for five years, constitute a corporation de facto. Bushnell vs. Con. Ice Mach. Co., 138 111. 67; Joliet vs. Francis, 85 App. 243. After a corporation is dissolved it is incapable of maintaining an action; pending action abates. American Bank vs. Mitchell, 179 App. 612. — Acceptance of Special Act: A copy of an order of board of directors taken from minutes of their proceedings and duly certi- fied by president and cashier, under seal of the bank, showing acceptance of provisions of an act, which act made its acceptance CORPORATIONS 345 a material point in proceedings of bank, is sufficient" to show such acceptance. Golder vs. Bressler, lOf) 111. 419. — Corporate Ohligalions: The manner in wliich a corporation keeps its books is not conchisive evidence as to whether a debt for which the individual note of its president was given was the obli- gation of the corporation or of its president. Union Natl. Bank vs. Post, 192 111. 385. To show the incurring of an inde])tedness of a corporation in excess of its capital stock, it is not sufficient to show that the various expenditures were ordered or authorized by the board of directors, when, so far as it appears, such expenditures may have been met by cash payments at the time. It must be shown that such expend- itures resulted in indebtedness, or formed part of the indebtedness in excess of the capital stock. Lewis vs. Montgomery, 145 111. 30. — Batificafion of Acts of Officers: Ratification by a religious corporation of the act of its treasurer in borrowing money is estab- lished by the record of the society's proceedings, which shows the treasurer received money as a loan to the society and issued its notes evidencing such loan, that the trustees used the money for the society and paid the interest on the notes, and that the society, as a body, was advised of the indebtedness and payments of inter- est and approved of such action of the trustees. 111. Conference vs. Plagge, 177 111. 431. — Insolvency: To prove the insolvency of a banking corpora- tion, no better evidence need be introduced than a return of a mill-a bona made by the sheriff upon execution issued against the \)f\ nlc Wheeloek vs. Kost, 77 111. 296, — Besidence: The introduction in evidence, in assumpsit, of a written contract between plaintiff and defendant, reciting that defendant was a "company registered in England under the Com- panies act," tends to show defendant's non-residence. A. W. Oil Fields vs. Miller, 216 111. 272. In the absence of proof it will not be presumed that corporation w^as a foreign corporation transacting business in this state with- out a license nor that its business was transacted in this state. Hubbard Steamship Co. vs. Ci-escio, 179 App. 56. A foreign corporation engaged in manufacture in a foreigii state and selling and delivering its product to merchants in this state, through its salesmen, without having any office or place of business in Illinois, is engaged in interstate commerce, and may sue in the courts of Illinois for the price of merchandise so sold and delivered though it has not complied with the act regulating foreign corporations. Lehigh Cement Co. vs. McLean, 245 111. 326. The doing of single act of business in this state is not violation of statute. "' ^?' Journal Co. vs. Motor Co., ISl App. 530. Admission of president of a corporation, made in the execution of the duties imposed upon him concerning a matter upon which 346 CORPORATIONS lie is required to act, and wliieh is within the scope of authority usually exercised by him, is evidence against the corporation. L. S. & M. S. Ry. Co. vs. B. & 0. & C. Ry. Co., 149 111. 272 ; Mas. Tern. Co. vs. Lang-felt, 117 App. 652. '■' — Admissions: Admissions of president in capacity of agent are not admissible unless part of res gestae. "^■■- O'Neill vs. Lindsay Light Co., 181 App. 700. Admissions made by vice-president of corporation held binding on corporation. ;:•: jr»ii^. Dornfeldt vs. Volkmann, 138 App. 421. It is not competent to show by parol declarations of the individ- ual directors of a corporation for what specific purposes a fund reserved in a contract, made by the corporation, was to be used. Such fund can be appropriated bv the board of directors only. G. & M. R. R. Co. vs. Burns, 92 111. 302. In suit by a creditor of a corporation, seeking to enforce the personal liability of a stockholder, plaintiff is not required to prove ownership of stock by record evidence, but such fact may be shown by defendant's admission and testimony of the officers of the corporation. Dows vs. Naper, 91 111. 44. In action by depositor in bank against a stockholder, the ledger of the bank, though not a book of original entries, is competent against the stockholder as an admission of the company, on its own books, of the amount due the depositor. Dows vs. Naper, 91 111. 44. Best and Secondary Evidence: Under section 15 of the Evidence act providing that papers, entries, and records of any corporation may be proven by a copy thereof, certified under the hand of the secretary, clerk, cashier or other keeper of the same, to which the seal of the corporation, if any, shall be affixed, the papers, etc., therein mentioned are orig- inal and not secondary evidence. C. B. & Q. Ry. Co. vs. Weber, 219 111. 372. The records of a municipal corporation are the best evidence of -I -j- Q Q (~* "j" G " City of Paxton vs. Bogardns, 201 111. 628. But if record is not made of illegal acts, parol evidence is admis- sible to show same. People vs. Mayor of Alton, 179 111. 615. A copy of a record required by law to be kept by a city, duly certified as required by the statute, is original evidence. City of E. St. Louis vs. Freels, 17 App. 339. Secondary evidence of the books and papers of a corporation is inadmissible in its behalf, where the originals are under its control. Mandel vs. Land Co., 154 111. 177, In absence of written evidence, oral evidence is inadmissible. Du (^noin Coal Co. vs. Thorwell, 3 App. 394. Presumptions : — Issues of Stock: The certificate of stock in a railway com- pany, issued by its secretary, is prima facie evidence that it was regularly issued, but this presumption may be overcome by other evidence, as, by showing that no order was passed for its issue. CORPORATIONS 347 If the order was passed, and not entered of record, that may be shown by the holder. Hall vs. E. H. & E. Eoad Co., 70 Til. 673. — Ownership of Stock: Holder of stock certificate under assign- ment is presumed to be rightfully in possession. Coffey vs. Coffey, 179 111. 2S3. The appearance of names on the books of a corporation as stock- holders is prima facie evidence that they are owners of the stock. Sherwood vs. 111. T. & S. Bauk, 195 111. 112. Receipt for certificate, placed on stub, raises presumption that persons signing receipt are owners of certificate. Gillett vs. Chi. Trust Co., 230 111. 373. — Execution of Mortgages: The execution of a mortgage under seal of a corporation, regular on its face, and by the properly con- stituted officers, is prima facie evidence the mortgage was executed by the authority of the corporation, and parties objecting take on themselves the burden of proving it was nut so executed. Wood vs. MTialen, 93 111. 153. — Execution of Contracts: Any contract executed by vice-pres- ident, within the general powers of the president, relating to cor- porate affairs, will be pi-esumed to have been executed on behalf of corporation, and to have been made by the authority of the corporation, as the vice-president acts for the president. Prairie Du Eocher vs. MiUiug Co., 248 111. 57. — Authority of Officers and Agents: The presumption relating to the authority of agent of corporation is not different from that relating to authority of agents of individuals, when circumstances are the same. Merchants' Bank vs. Nichols Co., 223 111. 41. Existence of seal raises presumption that person annexing same had authority to do so, and authority to execute instrument to which same is annexed. I. & St. L. Ey. Co. vs. Morganstern, 103 111. 149. When seal is proven to be the seal of the corporation, and to have been set to the deed by the agent, it is prima facie evidence of his authority to do the act. Phillips vs. Coffee, 17 111. 154. The president of the corporation is its chief officer, and is pre- sumed to be authorized to carry out its lawful contracts. Board of Trade vs. Nelson," 162 111. 431. The seal of a corporation appearing upon the face of an instru- ment is prima facie evidence of the assent of the corporation and the authority to execute the instrument. Eeed" vs. Fleming, 209 111. 390. — Seals: Where a certified copy of the instrument executed in behalf of a corporation, and as its act, shows, after name of pres- ident, the word (seal), this affords prima facie evidence that it is the seal of the corporation. It is not necessary to make a fac- simile of the corporate seal in the copy. Anthony vs. International Bank, 93 111. 225. Where the execution of an instrument is in the name of a com- pany by its agents, with a scrawl for a seal, it will be presumed 348 CORPORATIONS that, in absence of proof, the seal used was the proper and only seal of the company. Miller vs. Superior Mach. Co., 79 111. 450; Conkey vs. Goldman, 125 App. 161. — Suhscriptions: All subscriptions are presumed to be on the same basis, and all shares entitled to same benefits and subject to the same burdens, and in the subscription of each person every other subscriber has a direct interest, and the right to have the same remain and contribute in future burdens. Melvin vs. Lamar Ins. Co., 80 111. 446. — Receipt of Notice of Directors' Meeting: Due notice of stock- holders meeting will be presumed. Cushman vs. Starch Co., 79 111. 281; Forest Glen Co. vs. Gade, 55 App. 181. The presumption of the receipt of a notice of a meeting of directors of a coi-poration, deposited in the postoffice, properly stamped and addressed to one of the directors, is not overcome Ijy his mere failure to recollect its receipt or his impression that he did not receive it. Ashley Wire Co. vs. 111. Steel Co., 164 111. 149. — Authorization of Acts of Officers: General mile is that a corporation acts through its president, and through him executes its contracts and agreements, and an act pertaining to the busi- ness of a corporation not clearly foreign to the general power of the president, done through him, will, in absence of proof to contrary be presumed to have been authorized by the corporation. ' Transfer Co. vs. Fuller, 174 111. 221 ; Bank vs. Griffin, 168 111. 314. An act pertaining to the business of a corporation not clearly foreign to general power of the president, done through him will, in absence of proof to contrary, be presumed to have been author- ized by corporation. Ins. Co. vs. Johnson, 200 111. 359 ; Glover vs. Lee, 140 111. 102. Presence of corporate seal on note raises presumption that note was executed by authority of corporation. Transfer Co. vs. Fuller, 73 App. 48. The execution of a deed of assignment, regular on its face, by a properly constituted officer, is prima facie evidence that it was authorized by the corporation. Woolen Co. vs. Lesher Co., 78 App. 678. Presence of seal raises presumption that annexation of same was authorized by corporation. McDonald vs. Chisholm, 131 111. 273. Seal is iwima facie evidence of assent of the company. Eeed vs. Bradley, 17 111. 321; I. & St. L. E. E. Co. vs. Morgenstern, 103 111. 149. — Existence of Corporation: Execution of instrument by de- fendant to plaintiff, as corporation, is presumptive evidence of existence of corporation. Auction Co. vs. Ins. Co., 186 111. 156 ; Smith vs. Mayfield, 163 111. 447 ; Brown vs. Mortgage Co., 110 111. 235. That user shall be prima facie evidence of existence in ci*iminal proceedings applies to foreign corporations doing l)usiness in this Kinkaid vs. People, 139 111. 213. CORPORATIONS 349 Burden of Proof: — Absence of Corporate Authorization: Burden of proving ex- ecution of deeds of assignment, regular on their face, by properly constituted officers, was not authorized by the corporation rests upon party objecting to same. Woolen Co. vs. Lesher Co., 78 App. 678. — Absence of Autliority of Officer: When authority of officer to bind corporation is contested, burden is upon party asserting want of authority to sustain his position. Coal Co. -vs. Pullne, 137 App. 559. — Corporate Existence : In suit by corporation upon a call upon subscription to capital stock of the company, under issue on a plea of nul tiel corporation, the onus is upon plaintiff to show its corporate existence. Stone vs. G. W. Oil Co., 41 111. 85; Cozzens vs. Brick Co., 166 111. 213. — Legal Corporation: In suit by a corporation upon an agree- ment in writing to pay it a sum of money, a plea of nul tiel corpo- ration will not impose upon plaintiff the burden of proving that it is in all respects a perfectly legal corporation. The plaintiff may be entitled to recover on the issue presented by such plea, by making proof that it has a de facto existence. Hudson vs. Green Hill Seminary, 113 111. 618; Dean & Son vs. W. B. Conkey Co., 180 App. 162. — Ultra Yires : Burden of proof is upon party pleading ultra vireSt Gibson vs. Coal Co., 151 App. 424; Chi. Tool Co. vs. Johns Co., 101 App. 349; Chi. Tool Co. vs. Munsell, 107 App, 345. Estoppel: One who deals with a corporation as existing de facto is estopped to deny as against it that it has been legally organized. Lincoln Mason vs. Swatek, 204 111. 228 ; Bushnell vs. Con. Ice Co., 138 111. 67. A person who sues a corporation to recover judgment against it for claims contracted for by corporators before the organization is completed, by filing the certificate of incoiporation in the re- corder's office, is estopped denying the validity of the existence of the corporation at time claim was contracted, and cannot charge individual corporators as partners. Cresswell vs. Oberly, 17 App. 281. Recognition of a corporation by acts, payment and contract, estop a party from denying corporate existence. Walker Paint Co. vs. Ruggles, 48 App. 406. Estoppel to deny corporate existence results where the organ- ization has held itself out as a corporation. C. W. Sonp Co. vs. Rosenblooai, 91 App. 551. Competency of Stockholders and Officers as Witnesses: Stockholders in a corporation are "interested" witnesses, and incompetent to testify against representatives of deceased person, in their own behalf. Com. Co. vs. Sessell, 193 111. 153; Brick Co. vs. Ashburg, 198 111. 562; Machine Co. vs. Kiefer, 134 111. 481; XIV 111. Notes 1126, § 115. Must be a stock holder at time of testifying ; it is immaterial that witness was a stock holder at time of transaction involved. Bank vs. Sandmeyer, 164 App. 141. 350 CORPUS DELICTI Though he holds Init one share and was not a stockholder at time of transaction in question. Nichols vs. Estate of Cunningham, 181 App. 190. The secretary of the company, although a stockholder, is a com- petent witness to identify the books of the corporation and records of the company. The books of the company showing the organization are com- petent for that purpose. Peak vs. Wabash R. R. Co., 18 111. 88 ; Nichols vs. Estate of Cunning- hani, 181 App. 190. Judicial Notice: A court cannot take judicial notice that a private corjDoration has a seal. I. C. R. R. Co. vs. Johnson, 40 111. 36. Judicial notice will not be taken of acts of board of directors. Dunlap vs. Wilson, 32 111. 517. When charter of a private corporation is declared to be a public act, the court will take judicial notice of its provisions. P. D. & E, Ry. Co. vs. People, 116 111. 401. Court will take judicial notice that prior to 1897, many corpo- rations were organized, outside of the state, with intent of doing business in this state. Lehigh Cement Co. vs. McLean, 149 App. 360. Corporate Signature: Proof of signature to notes, bills, etc., given by a corporation, is not necessary to authorize a judgment, and if signature is denied, it must be under oath. P. & O. Ry. Co. vs. Niel, 16 111. 269. Where signers of note add after their names Pres. and Secty respectively, extrinsic evidence is admissible to prove that note was obligation of corporation, and not of individual makers. Decowski vs. Grabarshi, 181 App. 279. CORPUS DELICTI DEFINED. Particular Offenses: — Homicide : The corpus delicti is made up of two essential ele- ments : the fact of the crime, and the criminal agency of some per- son as the cause of death. Hoch vs. People, 219 111. 265; Campbell vs. People, 159 111. 9. — Rape: Without Force: To establish the corpus delicti it is necessary that the proof should show, first, that the female was under the age of fourteen ; second, that the male was over the age of sixteen; third, that sexual intercourse occurred between them. Wistrand vs. People, 213 111. 72. — False Pretenses: In false pretenses the corpus delicti con- sists of six elements: First, the statement made by defendant in order to obtain money or other property ; second, the reliance of the prosecuting witness upon the statements; third, the obtaining of the money or property from the prosecuting witness; fourth, CORPUS DELICTI 351 the falsity of the statement ; fifth, the knowledge that it was false when made ; sixth, the intention to defraud by means of the state- ments made. Moore vs. People, 93 App. 137. — Arson: The corpus delicti consists, not only of the fact that a building has been burned, but also of the fact that it has been wilfully fired by some responsible person. Carloton vs. People, 150 111. 181. DEGREE OF PROOF. Must be clearly established. Hoch vs. People, 219 111. 265. And beyond a reasonable doubt. Williams vs. People, 101 111. 382. ADMISSIBILITY OF EVIDENCE. Circumstantial Evidence : The corpus ddicti may be proved by circumstantial evidence. People vs. See, 258* 111. 152. The corpus delicti may be proven in prosecution for murder by presumptive or circumstantial evidence, where that is the best evidence obtainable, but great caution should be observed in acting upon it. People vs. Campae^na, 240 111. 378; Lipsey vs. People, 227 111. 364; Campbell vs. People, 159 111. 9 ; Gannon vs. People, 127 111. 507 ; XII 111. Notes 922, § 55. Confessions : — Extra- Judicial Confessions Generally: The corpus delicti cannot be established by extra-judicial confession or an admission of the accused alone. People vs. See, 258 111. 152; Gore vs. People, 162 111, 259; Johnson vs. People, 197 111. 48. Extra-judicial confessions of the commission of crime, insuffi- cient to authorize a judgment of conviction without other proof of the corpus delicti, and the corpus delicti should be first otherwise established. Campbell vs. People, 159 111. 9. And such confessions unsupported by evidence or circumstances tending to corroborate the facts contained in such confession do not constitute prima facie proof of the corpus delicti. People vs. Kennedy, 150 App. 571. (But where the crime is clearly shown, independently of admis- sions or confessions, to have been committed by some person, then admissions or confessions freely and voluntarily made, may bt> sufficient to convict.) Gore vs. People, 162 111. 259; Andrews vs. People, 117 111. 195; South vs. People, 98 111. 261; Yoe vs. People, 49 111. 410; Bergen vs. People, 17 111. 427. Complete proof of the corpus delicti, independent of confession of accused is not required. People vs. Harrison, 261 111. 517; People vs. Hannibal, 259 111. 512. — Larceny : Accused confessed he took the horse and traded it off, and animal was found in alleged purchaser's possession. One witness testified, owner had animal in possession before time said to have been stolen. Witness saw horse put in stable evening before the 352 CORROBORATION time in question,— heard about the horse being taken the next morn- ing. Another Avitness testified that he saw the horse in the owner's possession not long before the time "he was said to liave been stolen." Held, the proof did not sufficiently show that a larceny had been committed to justify a conviction. May vs. People, 92 111. 343; Andrews vs. People, 117 111. 195, — Bape: WitJiout Force: Age of accused, being a part of the corpus delicti, cannot be proven by a statement in a voluntary written confession of accused that he was forty-five years old, there being no other proof on such point. Wistrand vs. People, 1^13 111. T2; Cf. Suttou vs. People, 145 111. 279. CORROBORATION See Contradiction and Sustaining "Witness, Impeachment, Credibility, Cross-Examination, Divorce. Accomplices : A conviction may be sustained, although the only evidence of guilt is that of a self-confessed accomplice, but such evidence is open to grave suspicion and should be acted upon with great caution. People vs. Baskin, 254 111. 509; People vs. Feinberg, 237 111. 348; People vs. Frankenberg, 236 111. 408; Jureticli vs. People, 223 111. 484; Waters vs. People, 172 111. 367; Honselman vs. People, 168 111. 172; Ryder vs. People, 110 111. 11; Barron vs. People, 72 111. 256. Xi 111. Notes 1246 § 174. Court may ad\ise jury not to believe an accomplice unless he is confirmed, or only in so far as he is confirmed. It is a matter of discretion rather than a rule of law. Collins vs. People, 98 111. 584; Earll vs. People, 73 111. 329. But should instruct further that testimony of accomplice need not be confirined in every particular, but only as to some one fact or facts, the truth or falsehood of which goes to prove or disprove the offense charged. Gray vs. People, 26 111. 344. As there can be no participation in a crime either as principal or accessory without a criminal intent, without such intent a wit- ness is not an accomplice so as to render corroboration necessary. Cross vs. People, 47 111. 152; Love vs. People, 160 111. 501; Kelley vs. People, 192 111. 119. Extra- Judicial Confessions : — In General: Where the crime is clearly shoM-n independently of admissions or confessions, to have been committed, by sonie per- son, then admissions freely and voluntarily made may be sufficient to convict. Gore vs. People, 162 111. 259; Andrews vs. People, 117 111. 195; South vs. People, 98 111. 261; Vjg vs. People, 49 111. 410. A conviction may be had upon proof that a crime has been committed as alleged in the indictment, and the confession of the accused that he was the person who committed it, although there is no other evidence of his identity. Bartley vs. People, 156 111. 234. CORROBORATION 353 — Corpus Delicti: The corpus delicti cannot be established by extra-judicial confession or an admission of the accused alone. Gore vs. People, 1C2 111. 259; Johnson vs. People, 197 111. 48; Wil- liams vs. People, 101 111. 382 ; May vs. People, 92 111, 343. XI 111. Notes 124(5, § 171. Extra-judicial confessions of the commission of crime, where such confessions are relied upon to establish guilt, are not sufficient to authorize a judgment of conviction without other sufficient proof of the corpus delicti, and the corpus delicti should first be other- wise established, not, however, necessarily by direct evidence only. Campbell vs. People, 159 111. 9. And such confessions unsupported by evidence or circumstances tending to corrol)orate the facts contained in such confession, do not constitute prima facie proof of the corpus delicti. People vs. Kennedy, 150 App. 571. Acts and Declarations: — For)iur JJcclaraiions: Proof of declarations of a witness out of court, in corrolwration of his testimony at the trial is not, as a general rule, admissible after he has been impeached or discredited. Chi. City Rv. Co. vs. Matthieson, 212 111. 292; Eeavely vs. Harris, 239 111. 526. But where the witness is charged with testifying under the in- fluence of some motive prompting him to make a false statement, it may be shown in rebuttal that he had made similar statements at a time when the imputed motive did not exist, or when the motives of interest w^ould have induced him to make a different statement of facts. Stolp vs. Blair, G8 111. 541; Waller vs. People, 209 111. 284; Gates vs. People, 14 111. 433. Exception does not include statements sought to be proven, given in evidence under oath at coroner's inquest. Chi. City Ey. Co. vs. Matthieson, 113 App. 246. Proof of the declarations made by a witness out of court, in corroboration of testimony given by him on the trial of a cause, is, as a general rule, inadmissil)le even after the witness has been im- peached, or discredited. But it is otherwise where there is some independent evidence tending to show that the witness' account of the transaction was a fabrication of recent date. In such case, it may be shown that he gave a similar account before its effect and operation could be seen. Browning vs. Jones, 52 App. 597. — Complaint hy Prosecutrix: It is competent for the prosecu- tion to prove in corroboration of prosecutrix as to main fact of rape, either by her or other witnesses, that after the perpetration of the offense, she made complaint to those to whom complaint of such an occurrence would naturally be made, but on direct examin- ation such testimony is confined to the bare fact of complaint and neither the details of the oft'ense nor the name of the ofi^ender can be proven. People vs. Weston, 236 111. 104; Cunningham vs. People, 210 111. 410; Stevens vs. People, 158 111. Ill; Chambers vs. People, 105 111. 409. XIV 111. Notes § 14. Ev.— 23 354 COUNSEL But is not admissible unless part of res gestae, where prosecutrix does not testify. People vs. Lewis, 252 111. 281. The rule permitting proof of immediate complaint by the woman in a prosecution for rape does not extend to any other offense even though it consists of violence against the person, and hence proof of complaint by a child is not admissible in prosecution for taking indecent liberties with her. People vs. Scattura, 238 111. 313. Nor does the rule extend to the declarations made during preg- nancy of relatrix in bastardy proceeding. People vs. Welch, 143 App. 191. Nor incest. People vs. Turner, 260 111. 84, COUNSEL See Attorneys, Libel and Slander, Malicious Prosecution, False Imprisonment, Privileged Communications. COVERTURE See Husband and Wife, Marriage, Admissions and Declar- ations, Wills, Witnesses. CREDIBILITY See Bias and Hostility, Parties and Persons Interested as Witnesses, Impeachment, Detectives, Accomplice, Leading Questions, Contradiction and Sustaining Witnesses, Former Conviction, Pardon, Exclusion and Separation of Witnesses. MATTERS AFFECTING CREDIBILITY. Presumptions : That when nothing appears to the contrary, the presumption is to be fairly indulged that an unimpeached witness has testified truly may be laid down as a principle derived from the experience and knowledge of mankind, but the law has no such rule which the court may lay down in the instructions to the jury. Hauser vs. People, 210 111. 253; contra, Johnson vs. People, 140 111. 350. Opportunity for Knowing: JMore weight will often be attached to the question whether wit- nesses are in so favorable a position for observing the fact, if it occurs, that it could not o7; Hoge vs. People, 117 111. 3.5; City of Chicago vs. Smith, 48 111. 107; Peun. Co. vs. Conlan, 101 111. 93. It is error to instruct the jury that if they believe, from the evidence, that any witness or witnesses have knowingly and inten- tionally sworn falsely in the case, they may disregard such testi- mony. The jury have no right to disregard the testimony of a witness because he may have testified falsely to a matter wholly immaterial to any issue in the case. • Dacey vs. People, 116 111. 555. Where the general reputation of a witness for truth and veracity is bad in the neighborhood where he resides, or he has knowingly sworn falsely to a material matter, the jury may disregard his uncorroborated testimon3^ Hill vs. Montgomery, 184 111. 220. Corroborated Testimony : Corroborated testimony of a witness may be regarded even though he may have sworn falsely to other material matters in the case. Beedle vs. People, 204 111. 197; Mathews vs. Granger, 196 111. 164; Mantonya vs. Keilly, 184 111. 183; Chittenden vs. Evans, 41 111. 251. XIV 111. Notes, 1149, § 273. It is inaccurate to instruct a jury that if they believe that a witness has wilfully and knowingly sworn falsely as to any material point in controversy, they may disregard his entire testimony, without the qualification that the witness was uncorroborated by other evidence. Going vs. Outhouse, 95 111. 346. ' ■' = It is not true that the oath of one witness is entitled to as much weight as that of another, simply because both are deemed credible. One may be corroborated while the otlier may fail of such support, or the memory or means of knowledge of one may appear to the jury to be superior to that of the other. There are so many con- siderations affecting the weight of the testimony of credible wit- nesses that the court should not assume to control the jury by instruction as to the comparative value of their testimony. Eiggins vs. People, 46 App. 196. (See Corroboration.) Intelligence and Capacity of Witness: In every case where there is a conflict in the evidence, the jury may consider the intelligence and capacity of witnesses. Manufacturers Fuel Co. vs. White, 228 111. 187. GREDIIULITY 357 And even his temperament. Hartfoid Iiis. Co. vs. (Jray, Si) 111. 2S. Deportment and Demeanor of Witnesses: Deportment and demeanor of witness while testifying may be considered. City of La Sallo vs. Kostka, 190 111. i;!0; Hartford Ins. Co. vs. Gray, 80 111. 28 ; Stanipfoski vs. Stevens, 79 111. 303 ; Bowers vs. People, 74 111. 418; Animermaii vs. Teeters, 49 111. 40U; Ma^^gart vs. Peoria Ey. Co., 179 App. 229; State Bank vs. Brown, 179 App. 392. But not his conduct at the trial while not testifying. Purdy vs. People. 140 111. 46; Terry vs. People, 81 App. 27. Sometimes the countenance, tone of voice and manner of witness while testifying will contradict and deny the truth of his words, and tlie law does not require that the testimony of thus self-im- peached witness shall be believed. Ayers vs. Ayers, 142 111. 374; Haiiser vs. People, 210 111. 253. Number of Witnesses: ]\lere numl)er of witnesses alone will not control w^hen less num- ber are more intelligent, more reliable or in any material respect superior as witnesses to the other. English vs. Porter, 109 111. 28.5. Number of witnesses is an element to be considered and jury is bound to take it into consideration in determining the credibility of witnesses and existence of a fact. McFaddeu vs. Ey. Co., 149 App. 298; Hanley vs. Chi. City Ey. Co., 180 App. 397. Preponderance of evidence does not depend upon number of witnesses. Colgrove vs. Berry, 146 App. 107; Stenhaus vs. Eadke, 145 App. 232. Financial Standing*: Financial circumstances of party cannot be considered as affect- ing his credibility. VanDiizor vs. Allen. 90 111. 499. Importance of Testimony: Importance of testimony to party calling him is not ground for discrediting. C. & E. I. E. Co. vs. Huston, 95 App. 350. Omission in Former Trial: That witness did not testify to important matter on former trial- may be considered. Pratt vs. Pratt, 96 111. 184. But not where such matter was not then in issue. Otis vs. Spencer, 102 111. 622. Insanity : Proper to show insanity of witness. MoGriU \s. McGrill", 12 App. 624. Attorney and Witness: That witness talked with attorney concerning his testimony, and had been promised pav for time lost may be considered. N. Chi. St. Ey. Co. vs. Anderson, 176 111. 635. But mere fact that attorney talked with witness while prepar- ing cause for trial is not alone ground for discrediting testimony, W. Chi. St. Ey. Co. vs. Byrne, 85 App. 488. Suborning Evidence: It may be shown that party attempted to suborn evidence. Smith vs. Newton, 84 111." 14. 358 CREDIBILITY Or that witness offered to sell his testimony. Eichardson vs. Mercer, 51 111. 263; Hope vs. W. Chi. St. Ey. Co., 82 App. 311. Relationship : The relationship of witness to party may be considered and jury so instructed. Meyer vs. Nead, 83 HI. 19 ; Brown vs. Walker, 32 App. 199, Custody of Officer: That witness is in custody of officer is not in itself ground for discarding his testimony. Met. Ey. Co. vs. Fortin, 107 App. 157. Leaving Court Room: That witness leaves court room immediately after testifying can- not be considered to discredit him. Coughlin vs. People, 18 111. 266. Circumstances : Credibility is determined from all the circumstances, interest, means of knowledge, appearance on stand, business, competency and habits of witness as disclosed by the evidence. First Natl. Bank vs. Haight, 55 111. 191; Corgan vs. Frew, 39 111. 31. Character of Witnesses: It is proper to cross examine a witness as to his occupation and other matters which will enable the jury to determine what weight ought to be given to his testimony. People vs. White, 251 111. 67;' People vs. Schultz, 260 111. 35. The fact that witnesses for prosecution are not exemplary cit- izens does not warrant discrediting their testimony, though con- tradicted by defendant. People vs. McCann, 247 111. 130. The fact that a witness has been dissipated and unchaste is not necessarily an impeachment of his testimony. The credibility of witnesses is preeminently a question for the jury, and it will be presumed that the jury considered all matters appearing in evi- dence having a legitimate tendency to affect their credibility. Painter vs. Peoj^le, 147 111. 444. (See Character.) Accomplice : That witness is an accomplice may be shown and an instruction as to care and caution with which his testimony should be received is proper. People vs. Feinberg, 237 111. 348; Hoyt vs. People, 140 111. 588; Campbell vs. People, 159 111. 9. (See Accomplices.) Interest of Witness Not a Party: It is always proper to show that a witness is interested in the result of the suit. Donnelly vs. Daugherty, 174 111. 582; Bevan vs. Atlanta Natl. Bank, 142 111. 302. Efforts to Compromise: It may be shown that witness was attempting to compromise suit. Elam vs. Coal Co., 155 App. 375. Or that witness had attempted to procure plaintiff's release to defendant. Butler Ballast Co. vs. Hoshaw, 94 App. 69. Or that he had been officious in the trial, and friendship or en- mity. I. C. E. E. Co. vs. Black, 133 App. 84. CREDIBILITY 359 Marriage : Marriage relation is proper to be sliown. N. Chi. St. Ey. Co. vs. Welluer, 105 App. 652. Parties of Record: — Civil Actian: The interest of a party to the action may properly be considered in determining his credibility as a witness. Hanehett vs. Haas, 219 111. 546; N. C. St. Ey. Co. vs. Anderson, 176 111. 635. But where both parties to the record are natural persons an in- struction should not single out one of them and nuike no reference to the other. Rule otherwise where one is a corporation. N. Chi. St. Ey. Co. vs. Wellner, 206 111. 272 j Hartshorn vs. Hartshorn, 179 App. 421. Party cannot be discredited merely because he is plaintiff. Lauth vs. Chi. U. Trac. Co., 244 111. 245. — Criminal Action: The interest of a defendant may be pro- perly considered in determining his credibility as a witness. People vs. Scarbak, 245 111. 435; People vs. Zajieek, 233 111. 198; Spears vs. Peoole, 220 111. 72; Doyle vs. People, 147 111. 394; Peo- ple vs. Siebert,^ 143 111. 571. Under section 6 of division 13 of the Crimnal Code, the testi- mony of the accused must be considered fairly and impartially, and be subjected to the same tests as are applied to the testimony of other witnesses. Schultz vs. People, 210 111. 196. Wliere a defenciant in a criminal case testifies, and the jury knows he is a party, no further showing need be made that he is a party, and jury are authorized to consider to what extent that circumstance should affect his credibility. They are neither bound to believe nor disbelieve him, but in weighing his evidence they are to take into consideration the fact that it is evidence given by de- fendant in the case, and an instruction to that effect is not incon- sistent with one that the jury have no right to disregard the defend- ant 's testimony through mere caprice, or merely because he is defendant, and that the law makes him a competent witness, and the jury are bound to consider his evidence, and give it such weight as they believe it entitled to, and that they are sole judges of his credibility. Bressler vs. People, 117 111. 423, Such person, when introduced as a witness in his own behalf, is to be examined and cross-examined precisely as any other witness, and he may, likewise, be impeached in the same mode. The accused, as a witness, differs from other witnesses only in fact that he is the defendant charged and being tried for crime, which may be taken into consideration by the jury in passing upon his credibility, but his testimony must be treated the same as that of any other wit- ness ; nor can it be treated, as a matter of law, as not having the same effect and weight as that of other witnesses. Whether it should or should not, is a question of fact for the jury to decide, — and this is a rule in regard to all other witnesses. Chambers vs. People, 105 111. 409. In action for criminal libel, testimony of defendant is to be treated same as testimony of any other witness. People vs. Strauch, 153 App. 544. 360 CREDIBILITY Employe : Fact that a witness is an employe may be shown. Bennett vs. Chi. City Ry. Co., 243 111. 420; Donnelly vs. Daugherty, 174 111. 582; I. C. E. R. Co. vs. Hoskins, 115 111. 3U0. The mere fact of present or former employment of a witness by one of the parties is not an element in determining his credibil- ity, or the weight of his testimony, unless in addition it be shown that he has an interest in the result of the litigation. Dowd vs. Chi. City Ey. Co., 153 App. 85; Roberts vs. Chicago City Ry. Co., 262 111. 228. And an instruction is proper which informs juiy that they have no riglit to disregard the testimony' of an nnimpeached witness simply because he was in the employ of one of the parties. Cicero St. Ry. Co. vs. Rollins, 195 111. 219; Randall vs. S. D. & E. Co., 158 App. 56; Murray vs. McLean, 57 111. 378. Compensation : Expert witness mav be asked by whom he was paid. Chi. City Ry. Co. vs. Carroll, 206 111. 318; Risley vs. Burke, 203 111. 250; N. Chi. St. Ry. Co. vs. Anderson, 176 111. 635; Chi. City Ry. Co. vs. Handy, 208 111. 81. And witness may be cross-examined as to amount "of pay, busi- ness relationship and extent of services. Kerfoot vs. City of Chicago, 195 111. 299. But such examination is not proper mereJy for the purpose of disclosing fact that defendant was insured against loss in a casualty company. Wiersema vs. Lockwood, 147 App. 33; Eckhart Co. vs. Schaeffer, 101 App. 500; Fuller vs. Darrow, 101 App. 664. (See Expert and Opinion.) Before Grand Jury: In criminal case, the fact a witness testifying for People may have testified before grand jury against another person is in- competent. People vs. Ezell, 155 App. 298. Demand of Bribe: It is not competent to show that a witness, before testifying, had threatened to testify against a party unless a certain sum of money was given, where such witness, on cross-examination, was not inter- rogated with respect to such threat ; neither is proof of such threat competent as independent evidence unless the authority of such witness to represent the party is shown. Kokoshkey vs. Chi. City Ey. Co., 162 App. 613. Reward : It may be shown that a witness has a contingent interest as a result of the litigation. ^nUor vs. Ppoi)1p, 229 111. 376. PROVINCE OF COURT. May Not Determine Credibility: It is not the province of the court to determine, as a matter of law, in regard to the witnesses examined, whom the jury may or may not believe and an instruction that so states, or even conveys that impression, is vicious. Mullins vs. People. 110 111. 42; Johnson vs. People, 140 111. 350; Gra- ham vs. Sadler, 46 App. 440; People vs. Schultz, 260 111. 35. "We are disinclined to recognize the right of a court to desig- nate the evidence of a witness who is not an acknowledged accom- CREDIBILITY 361 plice, and caution the jury against giving credence to it. Casting the influence of the court against the testimony of a particular witness, or the character of evidence he gives is not a usual way of either affecting the credihilityor the weiglit of testimony. RalTeitv vs. People, 72 111. 37. May Call Witness: The coui't may, upon proper showing, call and ([uestion a witness whom the State's attorney thinks should testify, but is not willing to vouch for, and both parties may have the privilege of eross- exaniining such' witness. People vs. Eardin, 2.55 111. 9 ; People vs. Baskin, 254 III. 509 ; People \s. ("loniiiison, 250 HI. 135. PROVINCE OF JURY. The credil)ility of witnesses, the weight of testimony, the draw- ing of inferences from facts and circumstances proven are all ques- tions for the jurv to pass upon and not for the court to decide. Paige vs. 111. Steel Co., 2.33 111. 313; McGregor vs. Eeid, Muidoek & Son, 178 111. 464; Waters vs. People, 172 111. 3(i7; Stampofski vs. Steft'ens, 79 111. 303; Slack vs. Harris, 101 App..527; Howe vs. Medaris, 82 App. 515; Hunt vs. Hartcook, 79 111. 14; People vs. Delnce, 237 111. 541; People vs. Darr, 179 App. 130. The jury nuist test the truth and weight of evidence and what it proved by their knowledge and judgment derived from exper- ience, observation and reflection. C. P. & St. L. Ey. Co. vs. Meixner, 55 App. 288; Kitzinger vs. San- born, 70 111. 146; Ottawa G. & L. Co. vs. Graham, 28 111. 73; Hart- ford Ins. Co. vs. Gray, 80 111. 28. . _ In determining the weiglit and credibility to be given to any statement of fact made by a witness in the course of his testimony, it is the duty of the jury to take into consideration all the evidence, whether circumstantial or otherwise, tending to disprove such statement of fact, and which would also include contradictory state- ments made by other witnesses. Eider vs. People, 110 111. 11; Miller vs. People. 229 111. 376. Jury may consider intelligence and capacity of witnesses. Fuel Co. vs. White, 228 111. 187. A jury cannot decide whether or not a witness is credible by evidence undisclosed at the trial, nor take into consideration his demeanor when not testifying. Purdy vs. People, 140 111. 46. Nor can they reject testimony from caprice. C. & g". T. Ey. Co. vs. Foster, 46 App. 621; Edler vs. Uehlman, 10 App. 488. A jury has no right, arbitrarily, to reject the testimony of an unimpeached witness simply because they desire to find a verdict against it. It is their duty to consider the entire evidence and render their verdict accordingly. It should be fair and just con- clusion from the whole evidence, otherwise a new trial should be awarded. E. E. I. & St. L. E, E. Co. vs. Coultas, 67 111. 398. But where evidence is so inherently improbable as to make it unbelievable, it must be rejected as not in accordance with the truth. Mena vs. Chi. City Ey. Co., 147 App. 421; C. B. & E. Ey. Co. vs. Kirby, 86 App. 57, 362 CREDITOR'S BILL Number of Witnesses: While the preponderance of evidence is not determined by the number of witnesses alone, yet where the witnesses are of equal credibility, the number must be regarded as one of the means by which the preponderance is determined. McFaddeii vs. C. K. I. & P. Ky. Co., 149 App. 299; Pate vs. Quinn, 115 App. 513; R. R. I. & St. L. Ey. Co. vs. Coultas, 67 111. 398; C. E. I. & P. Co. vs. Givens, 18 App. 404; Stein vs. Schwartz Co., 163 App. 121. XII 111. Notes 536, § 476. But the jury cannot, from mere caprice, disregard larger number of witnesses testifying for or against party. Nau vs. Staiulard Oil Co., 154 App. 421. Where the opportunities of several witnesses to observe the fact as to which they testify are equal, and such witnesses stand on an equal plane as to their credibility in other respects, the element of numbers is one of controlling influence. Hanley vs. Chi. City Ey. Co., 180 App. 397; Cf. Cunningham vs. I. C. Ey. Co., 179 App. 505, CREDITOR'S BILL See Fraud, Fraudulent Conveyances, Husband and Wife, CRIMINAL CHARGE IN CIVIL SUIT See Weight and Sufficiency. CRIMINAL CONVERSATION See Seduction, Marriage. Marriagce: — Fact of Marrmge: Actual marriage must be proven. Miller vs. White, 80 111. 580; Kepler vs. Elser, 23 App. 643. — Reputation: Is not sufficient to prove fact of marriage as in other civil cases. Kepler vs. Elser, 23 App. 643. So certificate of county clerk of fact of marriage is incompetent. Ewing vs. Cox, 158 App. 25. — Marriage in Sister State: Marriage license issued in an- other state, with certificate endorsed thereon by a justice of the peace, that he had solemnized the marriage, was admitted in evi- dence, the official character of the officer granting the license, and also that of the justice of the peace being certified by the clerk, the keeper of the records, under his official seal, and the presiding justice having certified to the authority and official character of the clerk, the license and certificate were held prop- erly admitted. King vs. Dale, 2 111. 513. — Marriage in Foreign Country: May be proven by a copy of the record thereof in a parish register. Groom vs. Parables. 28 Add. 152. CRIMINAL CONVERSATION 363 Competency of Witnesses: — Plaintiff's Wife: incompetent. Groom vs. Parables, 28 App. 152. A divorced wife is incompetent to testify in behalf of her for- mer husband, in suit brought by him against her seducer. Eea vs. Tucker, 51 111. 110; Griffeth vs. Griffeth, 1G2 111. 368; Wad- dams vs. Humphrey, 22 111. 661. Proof of Seduction: — Correspondence: Between plaintiff's wife and defendant, admissible to prove seduction. Crosby vs. Eutledge, 81 111. 266; Browning vs. Jones, 52 App. 597. — Decree of Divorce: Record of a divorce between plaintiff and his wife is not admissible in evidence, as it does not tend to prove or disprove any fact in issue. Grose vs. Eutledge, 81 111. 266. Defendant Failing to Testify: No intendment against him. Lowe vs. Massey, 62 111. 47. Defenses : — Death of ^Yife: Does not affect husband's right of recovery. Yundt vs. Hartrunft, 41 111. 9; Browning vs. Jones, 52 App. 597. — Consent of Wife: Does not affect right of action. Browning vs. Jones, 52 App. 597. — Suit Against Another Defendant: The fact that plaintiff had instituted an action against another person for seduction of his wife and had settled the suit and released the cause of action, is not a bar to an action against another person who was also guilty of adultery with her. Shannon vs. Swanson, 208 111. 52. — Forgiveness of Wife : The fact a husband forgives the adul- terous conduct of his wafe does not relieve her seducer from legal liability to answer in damages. Shannon vs. Swanson, 208 111. 52. — Recrimination: Conjugal right exists, though husband, by his fault, is living apart from his wife and leading a dissolute life. Recrimination is not defense to action for criminal conversation as in proceeding for divorce. Browning vs. Jones, 52 App. 597. — Conduct of Parties: Evidence of collusion between husband and wife, in bringing suit is not admissible in bar of such action. But if the offense of defendant had been the result of collusion between plaintiff and his wife, or of connivance on part of plain- tiff, evidence of such collusion would bar the action. Eea vs. Tucker, 51 111. 110. — Connivance of Husband: Mere connivance by husband is bar to action by husband. It is not necessary to that end that the wife live as a prostitute with knowledge and consent of the hus- band. Lowe vs. Massey, 62 111. 47. — Absence of Husband: The husband's right of action is not affected by the fact that he is away from his home; though ab- 364 CRIMINAL CONVERSATION sent, he is still entitled to her services in the nurture of his chil- dren and to her virtuous example to them. Yundt vs. Hartrunft, 41 111. 9. Damages : — Loss of Service: A husband is entitled to recover substan- tial damages from one who has committed adultery with his wife, even though he proves no resulting expenses or loss of service. Shannon vs. Swanson, 208 111. 51; Yundt vs. Hartrunft, 41 111. 9. — Chastity of Plaintiff's Wife: In action for seduction of plaintiff's wife, the character of the wife for chastity is involved, Crose vs. Eutledge, 81 111. 266; Eea vs. Tucker, 51 111. 110; Brown- ing vs. Jones, 52 App. 597. And in mitigation of damages defendant may show that wife of plaintiff had been guilty of adultery with other persons before her connection with defendant. Hardy vs. Bach, 173 App. 123; Eea vs. Tucker, 51 111. 110. Where the character of wife for chastity has been attacked, by evidence of acts of adultery, it is proper to admit proof in re- buttal to show her general reputation for chastity. Bro\^^ling vs. Jones, 52 App. 597. — Chastity of Defendant: 'Chastity of defendant is not in- volved and evidence is not admissible in ehief, on part of plain- tiff, to show his reputation for chastity. Evidence that defend- ant had seduced the wives of other persons, or that he was in the habit of seducing married women is too remote. Crose vs. Eutledge, 81 111. 266. — Chastity of Plaintiff: Evidence is admissible to prove the adulterous conduct of the husband in mitigation of damages, but such evidence is not admissil^le in bar of action. Eea vs. Tucker, 51 111. 110; Browning vs. Jones, 52 App. 597; Bassett vs. Bassett, 20 App. 543. — Exemplary Damages: May be recovered. Peters vs. Lake, 6'6 111. 206. — Social Reinl-: For purpose of proving case for vindictive damages, proof of condition in life and circumstances, as well of "husband' as of party committing the injury, is proper and should be considered in estimating damages. Browning vs. Jones, 52 App. 597. — Pecuniary Circumstances: Evidence of pecuniary circum- stances of parties is proper. Peters vs. Lake, 66 111. 206; Eea vs. Tucker, 51 111. 110; Browsing vs. Jones, 52 App. 597. But where cause is tried several years after injury, proof of plaintiff's bankruptcy at time of trial is not admissible. Peters vs. Lake, 66 111. 206. — Aggravation of Damages: In criminal conversation cases, the degradation, mental anguish and distress, the loss of affection and service, if any ensues, are considered in aggravation of dam- ages. Browning vs. Jones, 52 App. 597. Where wife is seduced in husband's absence from home, jury may consider in aggravation of damages that the husband before leav- ing, placed his business in the hands of defendant, and that defendant took advantage of the position thus given. Yundt vs. Hartrunft, 41 111. 9. CROSS EXAMINATION 365 — Mitigation: Gross immoralities and avowals of profligate principles and loss of aifection on the part of the wife, are com- petent in mitigation of damages. Browning vs. Jones, 52 App. 597. CROSS EXAMINATION RIGHT TO CROSS EXAMINE. In General: A witness may be cross examined as to his direct testimony in all its bearings and as to whatever goes to explain, modify or discredit what he has stated in his iirst examination. Chi. City Ey. Co. vs. Creech, 207 111. 400. So far as the cross examination of a witness relates either to facts in issue or facts relevant to the issue, it may be pursued as a matter of right. Spohr vs. City of Chicago, 206 111. 441 ; Cleveland Stove Co. vs. Wlieel- er, 14 App. 112. And although statements are inadmissible as original evidence, party has a right to cross examine witness who has testiiied con- cerning statements of third person. Hall vs. G. T. Ins. Co., 171 App. 223. A person on trial should not be deprived of his legal right to cross examine witnesses. Writemau vs. People, 83 App. 369. Where one party to a cause, when called as a witness, is exam- ined in such a way as to leave the other party in doubt as to his right then to cross examine as to particular matters, or to lead him to suppose that such party would testify in rebuttal as to matters not then touched on, offering at that time the proper opportunity for cross examination, and where such party is not again called to the stand, adverse party may ask the trial court to open the case and permit further cross examination. Colonial Ins. Co. vs. Ellinger, 112 App. 302. Where refusal to permit cross examination is not final, but relates to order of proof, in absence of subseciuent offer, refusal not error. McEniry vs. Tri. City Ey. Co., 179 App. 152. On Default: A defendant who has been defaulted but who appears at trial may cross examine witnesses upon question of amount of dam- ages. Pfaff vs. Pacific Express Co., 251 111. 243; Wolf vs. Powers, 241 111., 9; First Natl. Bank vs. Miller, 235 111. 135. By Both Parties: If prosecution is unable to vouch for or guarantee the testimony of a person who was an eye-witness to the transaction, the court may call such witness and examine him, in order that the prosecu- tion, as well as the defense, may cross examine him. People vs. Baskin, 254 111. 509; People vs. Cleminson, 250 111. 135; People vs. Bernstein, 250 111. 63; Carle vs. People, 200 111. 494. Where no attempt is made by accused to show by other wit- nesses that a witness called by him has made statements contra- 366 CROSS EXAMINATION (lictory to those made on tlie witness stand, the mere fact that such witness makes a statement on cross examination, which coun- sel for accused claims is different from his statement at other times, does not entitle the accused, as a matter of right, to have the court interrogate the witness as a witness for the court, in order that counsel for accused may cross examine him. People vs. Tielke, 259 111. 88. Right of Co-Defendants: It would seem quite clear that in case of separate and distinct defenses each party defendant would have a right to cross examine as to any matter specially affecting his peculiar defense, no mat- ter how numerous the parties may be ; but in case of a common defense, the cross examination should be limited within a reason- able discretion to the necessities of the case. No inflexible rule can be laid down. Kerfoat vs. Kronin, 105 HI. 609. A defendant who has announced intention at close of plaintiff's evidence to abide by a motion for a peremptory instruction, w^hich had been denied may be permitted to cross examine witnesses tes- tifying for another defendant but by so doing authorizes the court and jury in determining whether case has been made against him, to consider the evidence introduced by the other defendant as well as that introduced by plaintiff. Postal Tel. Co. vs. Likes, 225 111. 249. Parol Founlation for Secondary: Where foundation for admission of secondary evidence is by parol, opposing counsel has a right to test the statements of such witness by cross examination. Scott vs. Bassett, 174 111. 390. Direct Irrelevant: If the subject matter of the examination in chief is wholly immaterial to the issue, cross examination may be denied. Evans vs. Murphy Varnish Co., 59 App. 87; Stein vs. Deutsch, 178 App. 615. If incompetent evidence is admitted over objection or subject to objection, opposing counsel may cross examine without waiving the question of the competency of such testimony. Pierce vs. Jacobs, 157 App. 441. If counsel chooses to cross examine a witness as to facts which were not admissible in evidence, the other party has right to examine him as to the evidence thus given. Doggett vs. Greene, 163 App. 369. Where all the evidence of a witness has been excluded except non-essential statement, right to cross examine properly refused. Singer vs. Hutchinson, 183 111. 606. In Ejectment: Where plaintiff files affidavit that he claims title through a com- mon source with defendant, and defendant denies under oath that he claims title through such source, or states he claims title through another source, the latter will not be subject to cross examination as to source of his title. Thatcher vs. Ohmsteail, 110 111. 26. CROSS EXAMINATION 367 CONDUCT AND MODE. Repetition : Questions asked on cross examination, the purpose of Avhieh is merely to require witness to repeat what he has already stated, may be disallowed. Zetsclie vs. C. P. & St. L. Ky. Co., 238 111. 240; Spohr vs. City of Chicago, 206 111. 441; Bonnett vs. Gladfelt, 120 111. 166; City of Aurora vs. Hillman, 90 111. 61; Emerling vs. S. V. Coal Co., 149 App. 97; XIV 111. Notes, 140 § 213. Asking particulars as to conversation, where witness has pre- viously stated extent of his information on that subject, is improper. Quiucy G. & E. Co. vs. Bauman, 104 App. 600. Questions calling for testimony already given should not be allowed. C. B. & D. Ey. Co. vs. Kelley, 221 111. 498. Rule is same as to expert. Spohr vs. City of Chicago, 206 III. 441. Where witness has testified positively there was but one ear on side-track, it is not error to sustain objection to further ques- tion whether if there had been five or six cars on the track, he would not have known it. Zetsehe vs C. P. & St. L. Ey. Co., 238 111. 240. Right to Recall: See Recalling Witness. Assuming Material Facts: In examination of witnesses, counsel are prohibited, even upon cross examination, of assuming any material fact in issue, and which is to be found by the jury, or from assuming that particu- lar answers have been given contrary to the facts. Haish vs. Muncly, 12 App. 539; Sanberg vs. Brinks Express Co., 151 App. 623; City of Chicago vs. Didier, 131 App. 406; Balswic vs. Balswic, 179 App. 118. Assuming Answer Untrue: It is proper on cross examination for counsel to assume that some previous answer of witness is untrue, either from wilful- ness or want of recollection, and he may put his question in vari- ous forms to show that fact, and it is error for court to deny that right where the cross examination is not pursued to an unwar- ranted extent. Briggs vs. People, 219 111. 330. Exclusion After Cross Examination: Counsel will not be permitted to cross examine a witness, and if the testimony elicited is not satisfactory, have it excluded. A party will not be allowed to experiment with a witness in that way. Capen vs. DeSteiger Glass Co., 105 111. 185. Memorandum : Where a witness testified from memorandum, and had no inde- pendent recollection of data he has testified to, opposing counsel is entitled to possession of memorandum to cross examine such witness. Harmon vs. I. & E. Coal Co., 237 111. 36. But if the cross examining counsel, after putting a paper into the hands of a witness, asks only as to its identity, his adversary will have no right to see the same; but if the same be used for 368 CROSS EXAMINATION purpose of refreshing memory of witness, or if any questions be asked regarding its eontents, a siglit thereof may then lie demanded. Casteel vs. Millison, 41 App. Gl. Opening Defense: Except l)y consent of parties, and permission of court, the defendant cannot, in cross examination, open his defense by inter- rogating a witness in cliief. Wheeler vs. Barrett, 172 111. 010; Freehill vs. Hneni, 103 App. 118. Phiintiff cannot estalilish any branch of liis case by cross exam- ination of defendant's witnesses. North K. St. Ey. Co. vs. Blatehfor.l, 81 App. fi09. The court may permit party to introduce evidence in suj^port of his case or defense, during the cross examination of Inn adversaries or his adversaries' witnesses, l)ut tlie refusal of such permission is not error. Peyton vs. Village, 172 111. 102; McEniry vs. Tri. City Ky. Co., 179 App. 152. Leading- Questions: A cross-examinnig party has a right to propound leading ques- tions. Phares vs. Barber, 61 111. 271. But even with an impartial witness under cross examination, the words cannot be put in the mouth of witness to echo back again. Clingan vs. Irvine, 40 App. 606. (See Leading Questions.) Variant Statements: — In Otneral: Inquiry may be made as to statements made by witness to others, or in former testimony. Warth vs. Lowenstein, 219 111. 222; Central Ey. Co. vs. Allmon, 147 111. 471. But admissions made by agent after accident are inadmissible to bind principal. Teal vs. Meraney, 12 App. 32. A witness may be asked, on cross examination, if he has not, theretofore, given a different account of matter to which he has testified, in onier to lay foundation for impeaching his testimony by contradicting him. Math vs. City of Chicago, 243 111. 114; Central Ey. Co. vs. Allmon, 147 III. 47i ; Campbell vs. Eacharst, 122 App. 609. — Former Opinions: If a witness has simply testified to a mat- ter of fact, his previous opinion as to merits of cause cannot be re- garded as relevant to the issues. Hence, the questions put to him on cross examination with view to laying foundation for his im- peachment, should be directed to matters of fact only, and not to mere opinions which he has forrfterly expressed. The latter are inadmissible unless the case is one where evidence of opinion is material. Central Ey. Co. vs. Allmon, 147 111. 471. — Foundation: The rule is inflexible that a witness cannot be impeached by proof of his having made contradictory statements out of covirt unless his attention has been directed, in his exami- nation, to such statements, specifying particularly the time and place. Hirsch vs. Coleman, 227 111. 149; Eiehardson vs. Kelly, 8.5 111. 491; Sigsworth vs. Coulter, 18 111. 204; Eegnier vs. Cavot, 7 111. 35; XIV 111. Notes, 1158 § 334. CROSS EXAMINATION 369 — Contradiction: If sueli former statements are neither admitted nor denied, it is then eompetcuit to prove tlie affirmative. Chi. City Ky. Co. vs. Mathewson, 212. 111. 292; Bresslor vs. i'oople, 117 111. 422; Winslow vs. NewUui, 45 111. 145. Where a witness is asked whether lie did not testify differently at coroner's inquest and replies that he may have, — that he does not remember, — it is not error to sustain an objection to question whether the matter was not fresher in his mind then than at time of the trial. Devine vs. Chi. City Ey. Co., 237 111. 278. — Whole of Conversation: If a witness is asked if he did not say a certain thing, and denies having said it, he may afterwards show what he did say ; and when a witness testifies to part of a conversation, the other party is entitled to show all that was said on same subject in that conversation. Norton vs. Clark, 253 111. 557; Scott vs. People, 141 111. 195; Barnes vs. Northern Trust Co., 169 111. 112 ; Augler vs. Smith, 34 111. 534. "Where one party elicits a part of a conversation, -it is the right of his opponent to have the whole of it. Sawyer vs. Nelson, 59 App. 46; Blach vs. W, St. L. & P. Ev. Co., Ill 111. 351. Where a party examines a witness as to a conversation, the oppos- ing party can only examine the witness upon the conversation about same subject matter; but not about a conversation upon a different subject not related to former conversation. C. & A. E. E. Co. vs. Thompson, 19 111. 578. If plaintiff, on cross examination, is interrogated with reference to certain testimony given by him on former trial, it is not error to permit him, on re-direct examination, to repeat the whole of his testimony on former trial covering points to which he was cross examined. 111. Steel Co. vs. Wierzbicky, 206 111. 201. The rule that where one party gives evidence of a part of a con- versation, the other party is entitled to call out the residue, so far as material, has no application where conversation was not alluded to on direct examination, but was first mentioned in answer to a question put to him on his cross examination. Hanson vs. Miller, 145 111. 538. So, a question on cross examination, as to whether any one told the witness of an occurrence will not justify the admission of the entire conversation in rebuttal. The queiy as to fact of being told, is not a quers^ as to wlio told witness. Sherman vs. Pardridge, 177 App. 304. — In Writing: A witness, under cross examination, may be questioned as to previous statements, made by him, in writing, or reduced to writing, relative to subject matter, without such writ- ing being shown to him. Warth vs. Lowenstein, 219 111. 222; Western M. & M. Ins. Co. vs. Boughton, 136 111. 317. But the contradictory statement in writing cannot be introduced without asking witness if he wrote or signed same. Chi. St. Ey. Co. vs. McLaughlin, 146 111. 353; Seckel vs. York Natl. Bank, 57 App. 579; Transportation Co. vs. O'Neill, 41 App. 423. In cross examination relative to written reports, proper method Ev.— 24 370 CROSS EXAMINATION is to show same to witness and inquire if same were in his hand- writing. Ludwiek vs. Engineering Co., 148 App. 632. Statements signed by a witness which contradicts his testimony, are not admissible in evidence when, after being read in detail, to the witness, he admits that he made the contradictory statements therein set forth. Swift & Co. vs. Madden, 165 111. 41; Dickirson vs. Henryetta Coal Co., 251 111. 292. Nor where written statement is presented to witness and signa- ture admitted, is it proper to permit cross examiation as to con- tents. Momence Stone Co. vs. Groves, 197 111. 88. (See Former Testimony.) MATTERS TENDING TO DEGRADE WITNESS. In General: A witness may be compelled to answer questions material to issue although his reply may impute disgrace to him. The reasonableness of examination applies not only as to eon- duet which may be inquired into, but also as to time thereof. The cross examination should not extend to things properly buried in the oblivion of the distant past, nor to matters which throw no light upon the truthfulness of the witness. Weldon vs. Burcli, 12 111. 374; Waters vs. West Chi. St. Ey. Co., 101 App. 265; Moline Wagon Co. vs. Preston, 35 App. 358. A wide latitude is allowed in cross examination of a witness but he is entitled to be protected by court from unnecessary insult and abuse by counsel. A witness cannot be impeached on cross examination by questions irrelevant to issue, which only tend to bully and degrade him. T. W. & W. Ky. Co. vs. Williams, 77 111. 354. Asking irrelevant questions for purpose of embarrassing a wit- ness or causing jury to draw an inference unfavorable to him is improper. Atchinson vs. McKinney, 233 111. 106. A cross examination intended solely to defame the character of the witness is improper. People vs. Brown, 254 111. 260. Occupation: It is proper to cross examine a witness as to his occupation and other matters which will enable the jury to determine weight to be given to his testimony. People vs. White, 251 111. 67; C. & P. St. Ky. Co. vs. Priest, 89 App. 304; People vs. Schultz, 260 111. 35. A defendant on trial for robbery, who testifies to his occupation as a laundryman, may be cross examined as to whether he did not keep a place for opium smoking. Bow vs. People, 160 111. 438. Where a witness for accused in murder trial testified that he was a bar-tender, and tended bar for accust^ for eighteen months, it is not error to allow prosecution to show, on cross examination, that for fifteen years the witness has spent more time working for gambling houses than in tending bar. People vs. White, 251 111. 67. CROSS EXAMINATION 371 Habits : It is within the discretion of court whether witness shall answer questions on cross examination which affects his family relations and his habits in connection with disreputable women, where such witness was an accomplice of defendant convicted and was turning State's evidence. Shields vs. People, 132 App. 109. Drunkenness : Cross examination to show excessive use of intoxicants is legit- imate with a view to affecting credibility of witness. Wood vs. Daily, 211 111. 495; McCauley vs. Chi. City Ey. Co., 163 App. 17G. Cause and Results: Where a witness has expressly or by inference stated the cause of a result, whether other causes contributed to the result is a proper inquiry on cross examination. Whether such inquiry re- lates to matter not pleasant to reveal is not to be considered. West Chi. St. Ey. Co. vs. Eeddy, 69 App. 53. Antecedents : Are proper subject of inquiry upon cross examination. T. St. L. Ey. Co. vs. Bailey, 43 App. 292. Former Prosecutions: It is error to require a witness, upon cross examination, to testify as to former prosecutions to wliich he had been a party defendant. People vs. Duggan, 150 App. 375; Burke vs. Stewart, 81 App. 509; Lambkin vs. Burnett, 7 App. 143. Nor may witness be asked whether he had been convicted of the crime of man-slaughter. Benson vs. Chi. Ey. Co., 180 App. 235. INTEREST. In General: It is always competent to show interest of a witness. West Skokie Drain. Dist. vs. Dawson, 243 111. 175; McMahon vs. Chi. City Ey. Co., 239 111. 334; Chi. City. Ey. Co. vs. Carroll, 206 111. 318. Relationship may be shown. Brown vs. Walker, 32 App. 199. Relation as Employe: Is matter of proper proof. Cicero St. Ey. Co. vs. Eollins, 195 111. 219; I. C. E. E. Co. vs. Ras- kins, 115 111. 300; Humboldt vs. Watkins, 123 App. 62. Financial Interest: It is always competent to show on cross examination that a wit- ness is interested in result of suit. Bevan vs. Atlanta Natl. Bank, 142 111. 302; Travers vs. Snyder, 38 App. 379. And greater latitude is allowed in case of party in interest or an unwilling witness. Hanehett vs. Kimbark, 118 111. 121. Questions which tend to elicit interest of witness and relations to parties, is proper cross examination. Humboldt vs. Watkins, 123 App. 62. It is always proper in cross examination to interrogate a witness, within reasonable limits, as to any matter of fact calculated to affect his credibility as a witness or weight of his testimony, and 372 CROSS EXAMINATION especially is this true as to matters which pertain to his relationship to the parties ; his interest in result of suit ; the effect of his testi- mony upon himself, his interests or his character, and the like. T. C. K. E. (V). vs. Burke, 112 App. 415. BIAS AND HOSTILITY. See Bias and Hostility. MATTERS IRRELEVANT. Contradiction : A witness cannot he cross examined as to any fact which is col- lateral and irrek^vant to the issue, merely for the purpose of con- tradicting him hy other evidence. Benedict vs. Dakin, 243 111. 384; Central Ey. Co. vs. Allmon, 147 111. 471. If a party, on cross examination, draws out immaterial matters, it is not competent for him to contradict the statements of the witness so drawn out, hy wav of impeachment. L. E. & W. Ey. Co. vs. Morain, 140 111. 117; City of East Dubuque vs. Burhyte, 173 111. 553. Party is ])Ound hy collateral matters which he hrought out on cross examination. Aneals vs. People, 134 111. 401; Pheiiix vs. Castner, 108 111. 207. Party cannot oljject to competency of evidence brought out hy him on cross examination. Kevern vs. People, 224 111. 170; Emerich vs. Hileman, 177 111. 368; Board of Trade vs. Blume, 176 111. 247. Conversation with Third Party: It is improper to permit a witness to testify to a controversial conversation had between plaintiff and third party, such conver- sation in no wise pertaining to the issues of the cause. HolxM't vs. YanAernian, 146 App. 1, Business Experience: Where a witness has testified that he signed a certain instrument, without reading it, it is proper, on cross examination, to inquire into his previous business, for purpose of showing he was a man of experience and affairs. Popjjers vs. Peterson, 43 App. 571. Defense Not Relied Upon: Cross examination which tends to elicit evidence in support of a defense not relied upon by the pleadings, is improper. Livingston Natl. Bank vs. Miller, 154 App. 104. Financial Condition: Questions merely calculated to show wealth of adverse party are clearly improper. Arnold vs. Pfaff, 94 App. 461. LIMIT. Discretion of Court: Should be kept witliin fair and reasonable limits, and the court has a discretion in conduct of trial for that purpose. People vs. Strauc'h, 247 111. 220; Davison vs. People, 90 111. 221; Cooper vs. Eandall, 59 111. 317; Flynn vs. Chi. City Ey. Co.. 15S App. 405; Fire Ins. Co. vs. Pulver, 126 111. 329. The scope of cross examination is largely within discretion of trial court, being governed by direct testimony of the witness, and the circumstances attending the giving of his evidence. CROSS EXAMINATION 373 A witness may be cross examined as to his direct testimony in all its bearings, and to whatever goes to explain, modify or dis- count same. Breman vs. Carterville Coal Co., 241 111. 610; Chi. City Ry, Co. vs. Creech, 207 111. 400; Hanchett vs. Kimbark, 118 111. 121. No definite limit can be prescribed as a rule of law. McMalioii vs. Chi. City Ky. Co., 239 111. 334. Direct Examination: Cross examination should be confined to matters brought out on examination in chief. Emerson vs. Fleming, 246 111. 353; Schmidt vs. Chi. City Ry. Co., 239 111. 494; C. B. & Q. Ey. Co. vs. Kelly, 221 111. 498; Staunton Coal Co. vs. Bubb, 218 111. 125; Hartshorn vs. Byrne, 147 111. 418; Hanks vs. Rhodes, 128 111. 404; Many, Blanc Co. vs. Jacobson, 149 App. 240; Casey vs. Chi. City Ry. Co., 159 App. 562; Aetnae Indemnity Co. vs. Mueller, 160 App. 149; Davis Bros. vs. Vandalia R. R. Co., 168 App. 621 ; XIV 111. Notes, 1139, § 209. And this rule applies to adverse party as well as other witnesses. Hauser vs. Miller, 145 111. 538; Ridgon vs. Conley, 141 111. 565; Stein vs. Deutsch, 178 App. 615. Upon the cross examination of a witness, it is proper to permit a full inquiry with respect to any matter touched upon in direct examination. Kirseh vs. Walter, 151 App. 378; Brennan vs. Chi. Coal Co., 147 App. 263 ; Donnelly vs. Chi. City Ry. Co., 131 App. 302. Cross examination seeking to elicit matter wdiich pertains to affirmative defense properly restricted where no reference made to matter on direct examination. Royal Neighbors vs. Sinon, 135 App. 599. Where a witness is called to prove a single fact only, the oppo- site party wull not be allowed, under guise of cross examination, to enter upon a general examination of the witness, but the cross examination w'ill be confined to the examination in chief. Erie & Pac. Dispatch Co. vs. Stanley, 123 111. 158 ; Hurlbut vs. Meek- er, 104 111. 541; Stafford vs. Fargo, 35 111. 481. Nor is it proper to permit cross examination to extend to mat- ters of defense not inquired .about on direct examination. Freehill vs. Hueni, 103 App. 118. Inconsistent Conduct: Witness may be interrogated as to conduct inconsistent with his testimony. Bow vs. People, 160 111. 438; Brtiner vs. Nisbet, 31 App. 517. Improbability : Witness may be cross examined to show that course of conduct was inherently improbable. . Mertens vs. So. Coal Co., 235 111. 540, Time, Place and Circumstances: Full inquiry as to time, plaee and circumstances concerning material transaction testified to should be permitted. Faulkni>r vs. Birch, 120 App. 281. Cause of Result: Where any witness has expressly or by inference, stated the cause of a result, whether other causes contributed to the result is a proper inquiry on cross examination. West Chi. St. Ry. Co. vs. Reddy, 69 App. 53. Witness may be cross examined as to all matters pertinent to 374 CROSS EXAMINATION and growing out of matters connected with testimony of direct examination. Edmunds Mfg. Co. vs. McFarland, 118 App. 256; CM. City Ey. Co. vs. Canevin, 72 App. 81. As to Experts: — Means of Knowledge: See Expert and Opinion. — AutJioritics: See Books. — Hypotheticalhj Interrogated: See Hypothetical Questions, — Compensation: See Expert and Opinion. — Nnmber of Cases in Which Witness Appeared: No definite limit can be prescribed as a rule of law. Question should be limited to number of times witness testified for party for whom he appears, and not similar cases. McMahon vs. Chi. City Ey. Co., 239 111. 334; C. & E. I. E. E. Co. vs. Schmitz, 211 111. 446. It is not proper, on cross examination, to ask questions in regard to professional opinions witness has given in other personal injury suits, nor attempt to show by direct examination of other witnesses, that expert was interested as a medical man in a large number of personal injury suits against corporations. Cross examination upon independent cases of the same character and about the same time as the principal case is not allowed. The rule is more strict against the use of this kind of testimony in direct examination. The acts and declarations either of strangers or of one of the parties to the action in his dealings with strangers, are irrelevant. They are what are denominated res inter alios acta. C. & E. I. E. Co. vs. Sehniitz, 211 111. 446. So question, "Isn't it the principal part of your professional industry to be in consultation with attorneys, to hunt up these claims, or, whether you hunt them up or not, secure them, and in consultation with them have an arrangement with them for con- tingent fees?" improper. Chi. City Ey. Co. vs. Smith, 226 111. 178. Nor may witness be asked as to comparative amount received from his profession and his income for testifying in various cases. Gordon vs. City of Chicago, 201 111. 623. — As to Value: Upon cross examination, great latitude is allowed so as to enable jury to see upon what basis witness had made his estimate of value, and what facts have induced him to form the opinions he has expressed. Spohr vs. City of Chicago, 206 111. 441. An expert in condemnation proceedings may be interrogated on cross examination as to his knowledge of sales of property in the vicinity. Spohr vs. City of Chicago, 206 111. 441. Plaintilf, as witness in own behalf, was asked value of certain land. He had already shown he was competent to give opinion of value of land. Defendant asked leave to cross examine him as to his means of knowledge before answering question, which court refused. Held, no error. Drew vs. Beall, 62 111. 164. It is entirely proper, on cross examination, to test knowledge and intelligence of witnesses on subject on which they have been ex- CROSS EXAMINATION 375 amined in chief, as to how witnesses formed their conclusions, basis of estimates, etc McCarthy vs. C. B. & Q. Ey. Co., 34 App. 273. Witness who has testified as to benefit of assessment may be cross examined as to value of property in vicinity. Chicago vs. Marsh, 238 111. 254. (See Expert and Opinion, Hypo- thetical Questions.) Re-Direct: After he has rested neither party can, as a) matter of right, intro- duce any further testimony, which may be properly considered testimony in chief. McEniry vs. Tri. City Ey. Co., 179 App. 152. It is within the sound discretion of the court to permit or to refuse the re-examination of a witness. Borett vs. Petry, 148 App. 622. And if permitted, its scope is within discretion of court. Concord House Co. vs. O'Brien, 228 111. 360. If it is stated by counsel that question has been omitted by in- advertence, it may be permitted. Finley vs. Chi. St. Ey. Co., 90 App. 368. So matters in explanation may be allowed. Wilson vs. People, 94 111. 299. But where witness, on cross examination, admitted making a statement which he denied on direct, re-direct should not be allowed. Marquette Cement Co. vs. William, 132 App. 629. "Where plaintiff in personal injury case volunteers the informa- tion, on cross examination, that he had once been shot during a strike but he is asked nothing about the shooting, it is improper to allow him, on re-direct examination, to describe the circumstances in order to show he was a union man and had been shot by a non- union man, or, as suggested by his counsel, a "scab." Kelleher vs. Chi. City Ey. Co., 256 111. 454. As to Direct Examination in Miscellaneous Instances: — Set-off: Where plaintiff called to prove that defendant had admitted correctness of his demand, defendant cannot, on. cross examination prove his set-off in defense. Eigdon vs. Conley, 141 111. 565. Cross examination of plaintiff's witness, w.hich tends solely to sustain defendant's plea of set-off, is improper. C. & M. Co. vs. Lutz, 152 App. 329. — Hearsay: Where father of deceased states, in answer to (juestion on cross examination, that he had heard there were other boys on the street at time of accident, and that he had learned the name of one, it is proper to sustain objection to question as to such boy's name, where no question was asked in regard to it on direct examination, the whole matter being purely hearsay. Chi. City. Ey. Co. vs. Strong, 230 111. 58. — Manner of Sideivalk Construction: Where plaintiff's ex- amination in chief, is confined to time and manner of constructing a certain sidewalk, objections are properly sustained to a cross examination as to number of times witness had inspected walk after construction. City of E. Dubuque vs. Burlyte, 173 111. 553. 376 CROSS EXAMINATION — Authority of Counsel: Cannot be inquired into upon exami- nation of witness on trial of merits of cause. Einerson vs. Fleming, 246 111. 353. — Specific Acts as Agent: Where a witness is examined in chief as to time and place of delivery of goods to him as agent of defend- ant, it is not proper, on his cross examination by defendant, to ask him about his previous course of dealings with plaintiff's agent, to show notice to him oF restrictions of defendant's liability. E. & P. Dispatch Co. vs. Stanley, 123 111. 158. — Character of Plaint ijf in Action for Slander: Plaintiff who has not given any evidence of her cliai'actcr upon examination in chief, cannot be cross examined for purpose of proving her bad character. Hill vs. Montgomery, 184 111. 220. — Mental CapaeHy at Particular Time: Proponents witness having testified as to testator's mental capacity in business trans- actions during period of several years before and after execution of will, contestants cannot, on cross examination, extend their in- quiry to cover full period up to testator's death. Entwistle vs. Meikle, 180 111. 9. — Account stated: Where plaintiff, on account stated, testifies only to interviews and correspondence rcsuiting in agreement fixing sum due, he cannot be cross examined regarding correctness of items of the account. Dick vs. Zimmermann, 207 111. 636. — Habits: The subject not being inquired into upon direct examination, it is improper upon cross examination to permit wit- ness to testify as to habits of plaintiff's husband prior to injury, in action under dram shop act. Gushing vs-ToUi, 151 App. 1. — Denial of Signature: Where witness states signature is not his, and points out diff'erences therein from his regiilar signa- ture, it is competent, on cross examination, to show him signature claimed not to contain such differences, and ask him if it is not his. Hobart vs. VanAeiinan, 146 App. 1. — Freight Kates: Witness who has testified as to what is fair and reasonable freight rate, should be permitted to be liberally cross examined. C. P. & St! L. Ey. Co. vs. People, 136 App. 2. — Drunkenness: Where witness upon direct examination had testified he was drunk, it is proper upon cross examination, in order to ascertain the truth of such statement to inquire as to what he said immediately after the time when it was claimed he was drunk. Santer vs. Anderson, 112 App. 580; Miller vs. People, 216 111. 309. — Feigned Symptoms: Wide latitude in cross examination of plaintiff in personal injury case should be allowed, where extent of her disabilities is in dispute, and character thereof such that the symptoms may be feigned. Chi. U. Trac. Co. vs. Miller, 212 111. 49. — Ownership: Where witness has, upon direct examination, testified to ownership, it is proper upon cross examination, to in- quire into the location, situation and character of property, where CROSS EXAMINATION 377 sucli inquiry will tend to sliow that his testimony in chief was the statement of a conclusion. Prussian Ins. Co. vs. Empire Co., 113 App. G7. — Impeaching WiUiess: It is proper, upon cross examination of an impeaching- witness, to show for whom he acted in seeking information from plaintiif, as to how injury occurred, in order that the fact and manner of his interest may a})pear. Natl. E. & S. Co. vs. Fagan, 115 App. 590. — Fraud: In admitting evidence to estalilish fraud, a reason- able latitude must be allowed on both direct and cross examination, and in case of the latter, the court should admit evidence having a reasonable tendency to throw light on the transaction, even though inquiry is as to matters not touched on in direct examination. Fabian vs. Treager, 215 111. 220; Hollenbach vs. Todd, 119 111. 543; Strohm vs. Hayes, 70 111. 41. It is correct practice to ask general and direct questions as to good faith, leaving opposite party, on cross examination, to call for details and collateral circumstances of transaction, if he desires them. Miner vs. Phillips, 42 111. 123. On defense to action on tire insurance policy that fire was pro- cured by insured and he had conspired with others to procure in- surance upon stocks of goods in order to have them destroyed by fire, it is error to refuse to permit cross examination that will develop alleged fact that a conspiracy existed. Milhim vs. Hawkeye Ins. Co., 171 App. 262. — Specific Contract Price: Refusal to permit inquiry into cost of constructing the work is not undue restriction of cross exami- nation of plaintiff's witnesses in suit to recover specific contract price for the work, there being no direct examination upon ques- tion of cost. Streator Tel. Co. vs. Construction Co., 217 111. 577. — Sanity of Testator: A witness who had expressed an opinion that testator was of sound mind, may, on cross examination, be asked relevant to testator's treatment of his family. Petefish vs. Becker, 176 111. 448. — Character: A witness who has testified in criminal case that the general reputation of accused as being a peaceable and law- abiding man is good, can not be asked, on cross examination, whether he has heard rumors of accused having been connected with former criminal acts. Aiken vs. People, 183 111. 215. It is error to allow a witness, called to show previous good char- acter of one on trial for rape, to prove, on cross examination, that he had heard people say defendant gambled. And when defend- ant testifies in his own behalf, it is error to compel him, on cross examination, to state that he had visited houses of ill-fame before, and the number of times, and of his having connection with the inmates, and that he had plaved cards for money. Gifford vs. People, 87 111. 210; Addison vs. People, 193 111. 405; Johnson vs. People, 202 111. 53. Affirmative evidence of general bad character cannot be intro- duced on cross examination. C. P. St. Ry. Co. vs. Priest, 89 App. 304. 378 CROSS EXAMINATION Accused properly cross examined as to relations with disreput- able women where such relations already in evidence. Halloway vs. People, 181 111. 544. But without such matter being in evidence, cross examination to show such relation discretionary. Schields vs. People, 132 App. "l09. — Gaming: In action to recover treble the amount lost by plaintiff's brother in gaming, if the loser testified for plaintiff that he never brought suit against defendants, it is proper to ask him, on cross examination, if he did not state to a certain person in a certain place, at a specified time, that he had been advised by his attornej's to wait six months and then sue in his brother's name for treble the amount, and that he was going to have his brother bring the suit. Kizer vs. Walden, 198 111. 274. — Specific Fact in Contradiction: If defendant calls a witness who testifies that he had never known a case where a person had been knocked forty feet by an engine and lived, it is proper, on cross examination, for plaintiff's counsel to ask him if he did not know a certain person who lived in the vicinity, who had been knocked fifty feet bv an engine and was still living. C. & A. R. R.'^Co. vs. Lewandowski, 190 111. 301. — Accomplices: In cross examining a witness jointly indicted with accused, and who, in testifying for the people, after having been granted a separate trial, establishes his own guilt and im- plicates accused, great latitude should be allowed ; and it is error for court to refuse to permit inquiry as to whether or not he ex- pected if he testified for the people he would be more lightly pun- ished than if he did not. Stevens vs. People, 215 111. 593. — Contents of Letter: Defendant laid foundation for introduc- tion in evidence of letter handed to witness, who identified the letter, and, on his direct examination, stated its contents to the jury. On cross examination the letter itself admissible. If con- tents were proper evidence for defendant, the letter itself is also for plaintiff. C. & E. R. R. Co. vs. Holland, 122 111. 461. — Prejudice of Witnesses: Where children of deceased testify against interest of the estate in proceeding to establish a claim, it is proper to show, by cross examination that they are prejudiced against the executor or interested in favor of claimant; but mere proof that they are dissatisfied with their father's will, without showing the reason for their dissatisfaction, does not go far enough to establish such prejudice or interest, and its admission is pre- judicial, in affording the jury an improper basis for surmising that such witnesses were swayed by improper motives. Nagle vs. Sehnadt, 239 111. 595. — By Trial Judge: Persistent cross examination by the trial judge, of witnesses testifying for accused upon the defense of in- sanity, by which false tests of sanity are suggested to the jury and from which the jury might well conclude that the defense was without merit, unless it was proven by positive evidence that the CUMULATIVE EVIDENCE 379 accused was an imbecile or the victim of an insane delusion, is ground for reversal. O'Shea vs. People, 218 111. 352. — Failure to Signal: Where defendant's witness has stated that she heard the whistle and went to her door and saw the train moving, and plaintiff lying beside the track, it is proper to sus- tain plaintiff's objections to the defendant's questions whether it was a usual or unusual thing for the train to pass along the track, and whether she had seen an engine pass there before. C. B. & Q. E. E. Co. vs. Pollock, 195 111. 156. — Custom of Physician in dialing Examination: If full cross examination of a physician, testifying in a personal injury case, is permitted as to manner in wdiicli he made the particular exam- ination of plaintiff's injuries, refusal to permit cross examination as to what was the usual custom of the witness in making exami- nations of that kind is proper. P. C. C. & St. L. E. E. Co. vs. Banfill, 206 111. 553. — Expert Mechanic: If witness has stated in chief that there is no way of determining whether stay-bolts are cracked wdthout taking the engine to pieces, on cross examination it may be shown that if hollow staybolts were used, cracks therein could be detected by leakage of water and steam. I. C. E. E. Co. vs. Prickett, 210 111. 140. — Eminent Domain: A witness, having testified to the damages to a particular tract of land touched by the track, cannot, upon cross examination, be required to testify as to the effect upon other tracts owned bv same party. P. P. & "j. E. E. Co. vs. Laurie, 63 111. 264. CRUELTY See Divorce. CUMULATIVE EVIDENCE LIMITING NUMBER OF WITNESSES. Facts Conceded: After the examination of a great number of witnesses as to cer- tain facts which are conceded by the opposite party, there is no error in refusing to hear other witnesses to prove the same facts. West Skokie Drain. Dist. vs. Dawson, 243 111. 175; L. S. & M. S. E. E. Co. vs. Brown, 123 111. 162; Mueller vs. Eebham, 94 111. 142; Union Natl. Bank vs. Boklenwick, 45 111. 375; Gray vs. St. John, 35 111. 222; Clement vs. Brown, 30 111. 43; XIV 111. Notes 847, §69. And may limit the number of depositions to be read to prove a particular fact. West Skokie Dr. Dist. vs. Dawson, 243 111. 175. If the fact is not controverted, it is no doubt in the discretion of the court to limit the number of witnesses to prove it, but when the truh of the fact is contested, it is otherwise. I. C. E. E. Co. vs. Treat, 179 111. 576; Village of Danvalle vs. Jacobs, 42 App. 533. 380 CUMULATIVE EVIDENCE And if point is subsequently disputed, court should permit call- ing of other witnesses. Green vs. Phoenix Ins. Co., 134 111. 310. Principal Issue: Wlieii the controlling fact is controverted, each party has a right to have all the witnesses heard wlio have knowledge of facts and circumstances bearing upon the contested point, and to deny such right is error. Cook Brew. Co. vs. Eyan, 98 App. 44-1; Crane Co. vs. Stammers, 83 App. 329; Union Natl. Bank vs. Baldenweck, 45 111. 375. Collateral Matters: Court may limit number of witnesses as to collateral matters. People vs. Arnold, 248 111. 169. Experts : AVhik- the number of expert witnesses may be limited in the sound discretion of the court, as may also the number of witnesses to prove a given fact w'hich is uncontroverted or merely collateral to the main issue, that discretion must be exercised in a reasonable and not arbitrary manner, jndged by the special facts of the case itself. West Skokie Drain. Dist. vs. Dawson, 243 111. 175 ; Burhaus vs. Vil- lage of Norwood Park, 138 111. 147; Greca vs. Phoenix Ins. Co., 134 111. 310; White vs. Hermann, 51 111. 243. As a general rule, the party has a right to call as many witnesses as he sees tit to and can produce in support of ins contention, but in the case of expert witnesses called upon a matter collateral to the main issue, and of impeaching witnesses, and in other like cases, the trial court has the light to limit the number of witnesses to be produced, such right to be exercised within the bounds of a reasonable discretion ; and in determining whether the right was properly exercised, a court of appeal will inquire whether the evidence already presented by the party was sufficient to establish his side of tbe issue, as it is not proper to reject further evidence where the judicial mind remains unconvinced by that already produced. Traders' Ins. Co. vs. Catlin, 71 App. 569. Practice : — Notice of Limitation: Court should notify parties of pro- posed limitation at beginning of trial. Greene vs. Phoenix Ins. Co., 134 111. 310. — Rebuttal: Court nuiy admit or exclude merely cumulative evidence when offered in rebuttal. Chytraus vs. City of Chicago, 160 111. 18; Casey vs. Biscuit Co., 163 App. 145. — Costs: The trial court may, with propriety, put a limit upon evidence presented, to tbe extent of the payment of costs for wit- nesses called after a given number have been examined upon a certain point, and require tbat all witnesses examined thereafter upon the same point shall be at the cost of the party calling them. Chi. City Ey. Co. vs. Wall, 93 App. 411. Statute does not prevent party calling as many witnesses as he pleases, if he chooses to take tlie risk of paying their fees. Eork vs. Minor, 109 App. 12; White vs. Hermann, 51 III. 243; Dan- ville Ts. Jacobs, 42 App. 533. CUMULATIVE EVIDENCE 381 Discretion of trial court iiiuler this section in refusing to tax witness fees against defendant will not be reviewed by Appellate Court. C. P. & St. L. R. R. Co. vs. Eatou, loG 111. 9; Roik vs. Minor, 109 App. 12. It does not necessarily follow that witness fees should not be allowed because the offered evidence was excluded, nor because the witness was not examined. A witness may properly be summoned to meet some anticipated evidence, which is not offered because the witness is present, when it would have been if he were al)sent. Smith vs. Kinkaid, 1 App. 620; Tewes vs. Harmon, 29 App. 254; Highway Comrs. vs. Hamilton, 21 App. 199. A motion to limit the nund)er of witnesses called by a defendant, whose fees are to be taxed against the plaintiff, made before the defendant has examined his witnesses, is premature and therefore properly overruled. ' C. B. & N. R. R. Co. vs. Bowman, 122 III. 595. Action on this section must be taken before fee bill is made up by clerk. Terves vs. Harmon, 29 App. 254. EMPHASIS BY RE-EXAMINATION. A court may sustain an objection to questions propounded by counsel to a witness which are mere repetitions of those he has already answered. Stern vs. Smith, 225 111. 430; Buck vs. Maddox, 1G7 111. 219. After a witness for the People has identified the accused as the person who fired the shots, it is improper to allow counsel for the People to induce the witness to emphasize his former statements by asking the leading question, "Are you positive that he is the man that shot the deceased ? ' ' Briggs vs. People, 219 111. 330. NEW TRIALS. Civil Causes: To entitle a party to a new trial on the ground of newly dis- covered evidence, it must appear that due diligence was used to discover and produce the evidence at the trial, and that the evi- dence is conclusive and not merely cumulative. Springer vs. Sehultz, 205 111. 144; Conlan vs. Mead, 172 111. 13; Bemis vs. Horner, 165 111. 347; Plumb vs. Campbell, 129 111. 101; Monroe vs. Snow, 131 Til. 126; Sterling vs. Merrill, 124 111. 522; Cunning- ham vs. I. C. R. R. Co., 179 App. 505; XIII 111. Notes 977, §68. Criminal Action: Newly discovered evidence affords no ground for a new trial unless diligence to procure same at the trial is shown, and not then, where the same is merely ciimulative. Williams vs. People, 164 111. 481; Burns vs. People, 126 111. 282; Adams vs. People, 47 111. 376. Newly discovered evidence on motion for new trial must be clearly conclusive in its character. Henry vs. People, 198 Til. 162; Lathrop vs. People, 197 111. 169; Fein- berg vs. People, 174 111. 609; Spahn vs. People, 137 111. 538; Bean vs. People, 124 111. 576. Impeaching- Evidence: — Civil Causes: A new trial will not be awarded in civil causes 382 CUSTOM AND USAGE on ground of newly discovered evidence which is cumulative or by way of impeachment, merely, and in its nature not conclusive. C. & N. W. E. K. Co. vs. Cal. Stock Farm, 194 111. 9; Jacobson vs. Gunzberg, 150 111. 13.3; Knickerbocker vs. Gould, 80 111. 388; Mar- tin vs. Ehrenfels, 24 111. 187 ; W. C. R. E. Co. vs. Eoss, 142 111. 9. — Criminal Actions: And same rule applies to criminal actions. Gradv vs. People, 125 111. 122; Kennedy vs. People, 108 111. 519; Collins vs. People, 103 111. 21; Friedberg vs. People, 102 111. 160. CONTINUANCE FOR. It is not error to refuse to grant a continuance of an action to enable a party to procure evidence cumulative to that actually introduced on the trial. McKichan vs. McBean, 45 111. 228. Affidavit for continuance should state that the party has no other than the absent witness by whom the same facts could be proven. Hodges vs. Nash, 141 111. 391; Dunn vs. People, 109 111. 635; Jarvis vs. Shacklock, 60 111. 378; Barnes vs. Hennessy, 22 111. 629. CUSTOM AND USAGE See Assumpsit. In General: — Defined: While words, usages and customs are generally used s,ynonymously in legal writings and in popular language, they have not entirely the same significance. "Customs" as applied to the conduct of men, does include usage, but usage does not neces- sarily include custom. A custom is such usage as, by common con- sent and uniform practice, has become the law of the place where it exists, or of the subject matter to which it relates. Usage is a method of dealing adopted in a particular place or by those en- gaged in a particular vocation or trade, which acquires legal force because people make contracts with reference to it. Currie vs. Syndicate, 104 App. 165. — Wliai Constitutes: Habit does not constitute usage. A habit or practice of a particular person or of persons in a particular trade does not of itself constitute usage. It is only when practice has come to have the essential characteristics of usage that it can be considered as such. Curry vs. Syndicate, 104 App. 165. The rules and enactments of voluntary organizations in a busi- ness, trade or occupation, are neither law nor custom, and do not have the force and effect of such upon the community. Severn vs. Churchill, 155 App. 505. — Nature and liequisiies: Custom, to become a law, must be so ancient that the memory of man runneth not to the contrary. Usage need only be old enough to be well established in the trade or place. Currie vs. Flower Syndicate, 104 App. 165; Packard vs. Van Schoick, 58 111. 79. To establish a usage or custom, it is not sufficient to prove certain isolated instances. The usage must be positively established as a fact, and not left to be drawn as a matter of inference from trans- CUSTOM AND USAGE 383 actions. A usage which is to govern a question of right, should be so certain, uniform and notorious as probably to be known to and underetood by the parties as entering into their contract, and cannot be proven by single isolated instances, nor by particular instances in a certain place or business institution. It is not proved by evidence that it Was acted upon in a few particular instances of dealing, nor is such evidence admissible to establish its existence. A custom or usage to be binding must be so uniform, long established and generally acquiesced in, and so well known as to induce the belief that the parties contracted with reference to it, and that failure to confonn to it would be an exception. The custom must be generally uniform; it must be certain, reasonable and sufficiently ancientjas to afford the presumption that it is gen- erally known. C. C. C. & St. L. Ey. Co. vs. Jenkins, 174 111. 398. If a usage is relied upon, it must be shown to be ancient, certain, uniform, continuous, reasonable "and so general as to furnish a presumption of knowledge by the parties. Wilson vs. Baunian, 80* 111. 493; Papin vs. Goodricli, 103 111. 86; Turner vs. Dawson, 50 111. 85; Anier. Ins. Co. vs. France, 111 App. 310; Quinn vs. Herhold, 100 App. 320; XII 111. Notes 5, § 5 et seq. Must be observed by party seeking advantage of same. I, B. Assn. vs. Cooke Brew, Co., 169 App. 347. Evidence of any other than a general custom is incompetent in an action for death by wrongful act. Casey vs. Chi. City Ey. Co., 159 App. 562. It must appear that the custom is ancient, certain, uniform and reasonable, and so general as to furnish a presumption that the parties contracted with reference to it. Bissell vs. Eyan, 23 111. 566. — Extent of Custom or Usage: In offering evidence of a general practice or custom, the inquiry should not be limited within the arbitrary lines of a mere political subdivision of the state. Muren Coal Co. vs. Howell, 107 App. 1. — Admissibility: Proof of a custom is improper where it does not tend to prove any material fact in issue. Smith vs. C. C. C. & St. L. Ey. Co., 149 App. 348. Proof of a custom is incompetent where party has no right to rely thereon. O 'Dell vs. Vandalia Ey. Co., 149 App. 610. Is sometimes competent on question of notice. Wibel vs. I. C. E. E. Co., 155 App. 349. Proof of a custom is incompetent if it is in conflict with a sub- stantive legal right. Machine Co. vs. Clow & Son, 148 App. 421. Proof of a custom is admissible in action for personal injury though not pleaded. Sturn vs. Con. Coal Co., 248 111. 20; Donnelly vs. Chi. City Ey. Co., 163 App. 7. A particular custom or usage, in order to be invoked and proved by a party to a contract, must be specially pleaded, evidence thereof not being admissible under the general issue. Mobile Fruit Co. vs. Judy, 91 App. 82. 384 CUSTOM AND USAGE Custom is competent where proof thereof tends to show that an injury resulted from the non-observance of such custom. Sturm vs. Con. Coal Co., 155 App. 1. Known and customary method of doing work is competent on question of assumed risk. Uy. Co. vs. Walker, 127 App. 214. A general custom that has existed for such length of time that the master could have known it, is admissible on question of neg- ligence. Amer. C. & F. Co. vs. Draper, 136 App. 12. And on question of due care of plaintiff. Engel vs. Parmalee Co., 169 App. 410. The usual manner of conducting a business at the place of acci- dent, established by rules duly promulgated by persons in author- ity, or growing out of the practice of employees long continued, is competent to be shown as shedding light on the acts and con- duct of the parties, and has a bearing on the question of negligence. Yeates vs. I. C. E. E. Co., 145 App. 11. Where a negligent construction is alleged as the basis of an action, evidence as to the usual and customary manner of such construction is inadmissible. Hansen vs. Clark, 214 111. 399; Beidler vs. Bransliaw, 200 111. 425; Union Wire Matt. Co. vs. Weigref, 133 App. 506. But proof of a customary method of doing work by persons who are habitually required to perform it, is some evidence as to whether the method is or is not negligent. Campbell vs. C. E. I. & P. By. Co., 243 111. 620. There is no error in refusing proof of a custom in a particular place to atford a purchaser of land an opportunity to inspect his vendee's deed before making payment, when no offer is made to show it was uniform, long established, generally acquiesced in, and so well known as to induce the belief that the parties contracted with reference to it. Papin vs. Goodrieli, 103 111. 86; Turner vs. Davrsou, 50 111. 85; Pack- ard vs. Van Schoiek, 58 111. 79. — Niimher and Cotnpctaicij of Witnesses: A custom cannot be established bv a single witness. Audoiman vs.^C. & N. W. Ey. Co., 153 App. 169; Bissell vs. Eyan, 23 111. 566. May be shown bv witnesses although not qualified as experts. Wilson vs. Bauman, 80 111. 493. — Judicial Notice: The courts will take judicial notice of some commercial customs while others must be proven as a matter of fact. Where a custom is so universal and of such antiquity that all men must be presumed to know it, courts will take judicial notice of it. Nash vs. Classem, 163 111. 409; Munn vs. Birch, 25 111. 35. So judicial notice will be taken of banks allowing depositors to check out their funds in parcels. Munn vs. Birch, 25 111. 35. And tliat banks close before a certain hour in the afternoon. Barton vs. People, 35 App. 573. And that dollars in an ordinary check upon a bank means law- ful money of the United States. Howes vs. Austin, 35 111. 396. CUSTOM AND USAGE 385 Or that borrowers pay interest. Ayers vs. Metcalf," 39 111. 307. That a purchase of grain is, as a rule, governed by the last available quotation. Nash vs. Classen, 1G3 111. 409. That when one is employed as a travelling salesman, some pro- vision is made as to his travelling expenses. Berriman vs. Marvin, 59 Apjj. 440. But particular trade usages or customs, however extensive they may be, cannot be noticed by the court unless established by proof. Morris vs. Jamieson, 205 111. 87. Contracts : — Presumption as to Contracting ^¥ith Reference To: A per- son entering into a contract in the ordinary course of business, is presumed to have done so in reference to any existing general usage or custom relating to such business. Steidtman vs. Lay Co., 234 111. 84; Collins Co. vs. Stephens, 189 111. 200; Chisholni vs. Bcaman Mach. Co., IfiO 111. 101; Leavitt vs. Kennieott, 157 111. 235; First Nat'l Bank vs. Hogff Harris Co., 181 App. 220. And this whether he knew of the custom or not. Steidtman vs. Lay Co., 234 111. 84; Taylor vs. Bailey, 169 111. 181; Samuels vs. Oliver, 130 111. 73; Bailey vs. Bensley, 87 111. 556; Clark vs. Milling Co., 165 App. 177. Such general custom and technical meaning of words may be proven without being specially pleaded. Steidtman vs. Lay Co., 234 111. 84; Stewart vs. Smith, 28 111. 397. The promise to pay interest may be inferred from particular mode of dealing between parties, or from usage of trade which governs the business in which the parties are engaged. Ayers vs. Medcalf, 39 111. 307. Where it is a long and generally established custom of a railroad company, in delivering freight to connecting lines, to deliver as consignors, a shipper who has been in the habit of shipping over such road, will be presumed to be familiar with such custom, and to contract with reference to it. I. B. & W. Ey. Co. vs. Murray, 72 111. 128. One employing another to act for him in buying and selling in a certain market, will be held as having intended that the business should be conducted according to the general usages of such market, though he does not know of their existence. Where a transaction involving purchase of stocks on the market is, in fact, a real purchase under an authorized contract, the cus- toms of the market may be considered in construing the contract, and in interpreting the otherwise indeterminate intention of the parties. Taylor vs. Bailey, 169 111. 181. In case of general agent, the law permits usage to enter into and enlarge liability of principal in respect to contracts made by agent ; and the usages of a particular business or trade are admissible for purpose of interpreting the powers given to the agent or factor. Natl. Furnace Co. vs. Mfg. Co., 110 111. 427. Ev.— 2 5 386 CUSTOM AND USAGE — Admissibility of Custom and Usages: Admissible to ascer- tain and explain and fix terms of a contract. Turner vs. Colortype Co., 223 lU. 629; Gilbert vs. McGinnies, 114 111. 28; Corbett vs. Underwood, 83 111. 324; Lonergan vs. Stewart, 55 111. 44. Custom or usage is inadmissible to explain or alter unambiguous technical language in a deed. Morton vs. Babb, 251 111. 488. Evidence of usage is admissible to show true meaning of parties in making contract. Currie vs. Syndicate, 104 App. 166. Inadmissible to contravene established rule of law, or to vary terms of an express contract. Turner vs. Osgood Colortype Co., 223 111. 629; Ben. Soe. vs. Baldwin, 86 111. 479; Lonergan vs. Stewart, 55 111. 44; Bank vs. Burney, 28 111. 90; Whipple vs. Tucker, 123 App. 223; XII 111. Notes 6, § 15. Proof of usage can only be received to show intention or under- standing of parties, in absence of special agreement. Graham vs. Sadlier, 165 111. 95; Dixon vs. Dunham, 14 lU. 324. Evidence of a particular custom or usage of trade is also admis- sible for purpose of engrafting, as it were, new terms into a con- tract, subject, however, to the qualifications that the terms are not expressly or impliedly excluded by the express agreement. To have this effect, the custom or usage must be reasonable, and not in conflict with any general rule of law. Gilbert vs. MeGiunis, 114 111. 28. Evidence of a custom and usage is not admissible to vary the terms of a contract, but is admitted on the ground that the custom and usage entered into and became a part of the contract and the contract should be so read and construed. A custom, to be com- petent, must be so certain, uniform, general and well known that it must be presumed to have been contemplated by the parties enter- ing into the contract in question. Klaub vs. Vokoun, 169 App. 434. But it is not admissible to prove a custom or usage, the effect of which will be to add to an express agreement a condition or limi- tation which is repugnant or inconsistent with the agreement itself. Such evidence is never admitted to vary or contradict, either ex- pressly or by implication, the terms of an agreement, written or verbal. Gilbert & Co. vs. McGinnis, 114 111. 28. The law recognizes no validity in any custom which violates its own rules, and it is not error to exclude evidence which, if admitted, would tend to relieve party from a just legal obligation. W. U. Cold Storage Co., vs. Produce Co., 94 App. 618. The custom in the theatrical profession not to pay for services as manager of a theater except during the theatrical season, may be regarded in construing a contract employing a manager at a weekly salaiy, with an added percentage of profits. Evidence of such custom is not admissible as an attempt to vary the language of the contract of hiring, but is merely by way of explanation. Leavitt vs. Kennicott, 157 'lll."235. Where a contract of insurance refers to a policy, which both parties knew had no existence, to define the conditions of the con- CUSTOM AND USAGE 387 tract, and where it is apjoareiu that both understood the agreement was to be governed by same terms and conditions as such an in- strument woukl contain if in existence, the contract will be gov- erned by the unifonn and settled custom of the company with reference to the conditions contained in like policies. Home Ins. Co. vs. Favorite, 46 111. 263. In suit against a firm of private ])ank(>rs, npon note given by their clerk and cashier for money borrowed by iiim in the lirm name and appropriated to Iiis own use, in which the cashier's authority to give the note put in issue, evidence of the custom of bankers at the place in which defendant's liank is located, to borrow money on time, is proper, as tending to show that borrowing money was within the scope of the ordinary and customary business of defendants. Grain vs. ^^'irst iYatl. Bank, 114 111. 516. In suit where plaintiff sought to recover for building certain houses, a commission of ten per cent on the cost, where evidence tended to prove a contract to pay such per cent as commission, evidence on part of defendant, as to what was general or custom- ary commissions paid on such buildings is properly rejected, as same is wholly immaterial. Lonergan vs. Courtney, 7.5 111. 580. Proof of custom is inadmissible where it is not shown how it would affect the contract of the parties. Peoria Com. Co. vs. McGuire, 53 App. 470. And is inadmissible where tliere is no evidence showing con- tract made with reference to it. Ayer vs. Mead, 13 App. 625; Decatur Natl. Bank vs. Murphy 9 App. 112. Proof of usage is only admissible to show intention of parties, in absence of special agreement. Fay vs. Strauu, 32 111. 295. Custom is inadmissible to show authority to contract where not relied upon bv parties. Braun Vs. Hess & Co., 187 111. 283. Competent on question of warranty, where parties are presumed to have knowledge of it, and to have contracted with reference thereto. Everingham vs. Lord, 19 App. 565. In action for breach of oral agreement, it is not proper to estab- lish agreement by evidence of usual and customary terms and pro- visions put in all contracts of the character of the one sued on, when nothing was said between the parties on that subject, or when what was said did not relate to any such provisions, expressly or b}' implication. Nolan vs. O 'Sullivan, 148 App. 316. Employer and Employe: As a general rule, if a regulation is habitually violated, with the knowledge and ac(iuiescence of the employer, it is to be treated as inoperative against the employe. Kenny vs. Marquette Cement Co., 243 HI. 396; Hampton vs. Cbi. Rv. Co., 236 111. 249. But this rule does not apply where disobedience to the rule is 388 CUSTOM AND USAGE not necessary to carry on the business in which the employe is engaged, and there is an honest endeavor on the part of the em- ployer to keep the rule in force, by constant warning to the employe to desist from a dangerous practice. Hodshire vs. Corn Prod. Co., 179 App. 529. Railroads : — Ballaating Track: Evidence that track was ballasted in usual and customary manner is inadmissible where there is no com- plaint as to general manner in which same was ballasted. L. E. & W. Ky. Co. vs. Wilson, 189 111. 89. Custom of railroads to use unballasted track is competent on question of vigilance required of brakemen. Penn. Co. vs. Hankey, 93 111. 580. — Operation of Yards: In action for death of car inspector, due to alleged negligence of company in placing cars in yard, custom of company in letting cars into yard is competent on ques- tion of due care of deceased. Penn. Co. vs. Stolke, 104 111. 201. "' — Method of Doing Work: Proof of a customary method of doing an act by those who are frequently and habitually required to perform it, is some evidence as to whether the method is or is not negligent. Campbell vs. C. E. I. & P. Ey. Co., 243 111. 620; Hayes vs. Wabash E. Co., 180 App. 511. — Permitting Persons to Ride on Cars not for Passengers: It is proper to permit proof that many conductors had pursued same course in permitting or directing persons to ride on employes car, as tending to show defendant had notice, or should have had notice of such custom. St. L. A. & S. Ey. Co. vs. Zink, 229 111. 180. — Lnspcctioii of Engine and Cars: Evidence as to custom of other railroads in inspecting engines is inadmissible. The ques- tion in each case is what is reasonable care and insi:)ection in the particular case. I. C. E. E. Co. vs. Priekett, 109 App. 468. — Receiving and Transporting Ship)iients: On issue whether car load of potatoes was received in good condition, plaintiff may show a custom of railroad company, when goods were delivered in bad order, to note same on bill of lading. Weinberg vs. Weinberg, 163 App. 420. In action to recover value of (juantity of coal alleged to have been taken from cars while in transit, evidence of a custom of railroad's servants to coal engines from shippers' car in transit, is irrelevant. Smith vs. C. C. C. & St. L. Ey. Co., 149 App. 348. — Use of Track as Foot-path: Evidence that occupants of several houses along the railroad track had been accustomed to use the track as a foot-path, does not establish a duty on the part of the engineer to use care to see and avoid injury to persons upon the track at that place, where the company has operated the road but a short time, and has done nothing to encourage such use of its Wabash Ey. Co. vs. Jones, 163 111. 167. CUSTOM AND USAGE 389 — Permitting Shippers to Ride: Evidence of a custom of de- fendant in allowing sliippors of live stock to ride npon its engines and cars containing stoek, to tlie stock yartls, is admissible as tend- ing to show the anthority of the servants of the company to thus carry deceased, and that the Litter was, at the time, a passenger for reward. L. S. & M. S. By. Co. vs. Brown, 123 111. 162. — Regulaiion of Laborers' Living Quarters: Proof that men composing the gang of track laborers, of which plaintiff was a mem- ber, were accustomed to crawl under the living (;ars in going for water, and to attend to their cooking, and that they had been told to do so by their native foremen, tends to show that defend- ant's train employes, who were stationed at the same place, knew of such custom, and is admissible. I. C. R. E. Co. vs. Panebiango, 227 111. 170. — Boarding and Alighting from Trains: Evidence tending to show a custom or habit in boarding or alighting from trains else- where than at the depot, with the knowledge or consent of the car- rier, is admissible in action by passenger for injuries while so alighting. C. & W. I. R. R. Co. vs. Doan, 195 111. 168 ; Penn. Co. vs. McCaffery, 173 [11. 169; L. S. & M. S. Ey. Co. vs. Ward, 135 111. 511; Eckels vs. Bryant, 137 App. 234. .7 — Recommending Employees: A letter of recommendation by a railway company to an employe, which is purely personal, and shows on its face it is not a general form which would be given to other employes, does not tend to establish a custom on the part of the company to issue clearance cards to employes leaving the sei^vice. The fact that a railroad company requires the production of certificates of recommendation by persons seeking employment does not create the legal duty on its part to issue the same to retiring employes, nor does it in any way tend to establish a custom of issuing them. C. C. C. & St. L. Ey. Co. vs. Jenkins, 174 111. 398. Street Railways: — Position of Conductor on Cars: A general custom of street car conductors to be upon rear platform of cars at time of crossing transfer points, is inadmissible when company's rule on same sub- ject is in evidence, and it is not contended that rule is habitually and knowingly violated. Bennett vs. Chi. City Ry. Co., 243 111. 420. — Position of Passengers on Cars: It is proper to admit evi- dence tending to show that it was the custom to ride upon the running board of the street car towards the sidewalk, and that the other running board was turned up so that no one could stand upon it. Chi. U. Trac. Co. vs. Kolberg, 107 App. 90. — Boarding and Alighting From Cars: It is competent, as bearing upon the question of negligence, to show that other pas- sengers got upon moving cars at this place, and that defendant^ 390 CUSTOM AND USAGE through its conductors, permitted them to do so, without objec- tion, and even encouraged the practice. N. Chi. St, Ry. Co. vs. Kaspers, 186 111. 246; Penn. Co. vs. McCaffery, 173 lU. 169; S. Chi. City By. Co. vs. Dufresne, 200 111. 456. Evidence of a custom or common practice among passengers to get oK cars at a certain railroad crossing, when the cars were stopped there to ascertain whether it was safe to cross tlie tracks, is proper in action for injuries received by a passenger thrown to the ground by the sudden starting of the car as he was alighting at such place. Chi. City Ey. Co. vs. Lowitz, 218 111. 24. — Eegulating Cars at Street Crossings: A custom and practice with respect to regulating and handling cars at a street crossing is competent upon question of negligence of company, charged to have taken place at a particular crossing included within such custom. Chi. City Ey. Co. vs. Sugar, 117 App. 578. — Running on Particular Tracks: Evidence of the custom to run south-bound cars upon one track, and north-bound cars on the other, is admissible on question of negligence and care where de- ceased was struck from behind by a north-bound car running on the south-bound track, although the departure from such custom was not charged as negligence. N. Chi. St. Ey. Co. vs. Irwin, 202 111. 345. — Stopping Cars at Particular Place: Where issue is whether train, which deceased attempted to lioard, was running slowly or at full speed, upon which point the evidence is contradictory, it is error to permit plaintiff to show, in corroboration of his evidence, that the train was running slowly, that defendant was accustomed to stop its trains or run slowly for purpose of receiving passengers at place of accident. W. Chi. St. Ey. Co. vs. Thorpe, 187 111. 610. Mines and Mining: ''^'^^i A mine owner is presumed to know of a custom of long standing, in the manner of operating a cable in a mine, and a servant, in the performance of his duty, has a right to rely upon such custom, in absence of any notice or warning that same will not be observed. Sturm vs. Con. Coal Co., 248 111. 20. Evidence that plaintiff, for three successive mornings, wrote his order for props and timbers on the blackboard provided for that purpose, in accordance with the custom established by defendant, is sufficient to authorize the jury in finding that plaintiff" made demand for props and timbers. Donk Bros. Coal Co. vs. Peton, 192 111. 41. In action under statute for failure of mine owner to keep props on hand, witnesses who have testified that when there were props on hand, they were kept at the bottom of the shaft, may testify whether at the time of the accident there were any props at the bottom of the shaft. Mt. Olive Coal Co. vs. Eademacher, 190 111. 538. As bearing on question whether a mule driver in a mine was exercising due care for his safety, as alleged in his declaration, he may prove usual customs as to time of firing shots in mine entries, CUSTOM AND USAGE 391 even though the declaration does not allege such custom nor aver its violation on the day of injury. h Donk Bros. Coal Co. vs. Thil, 228 111. 233, Public Officers: Contents of court files cannot be proven by showing a custom of the clerk to copy certain statements contained in replevin affi- davits into the writ, there being no testimony that he did so "in the particular case. Franks vs. Matson, 211 111. 338. Foreign Customs and Usages: p, In absence of proof, courts will proceed on presumption that customs and usages of a foreign country are the same as those of its own jurisdiction. Deinster vs. Stephen, 63 App. 126. Transfer Companies: On question of delivery of baggage to a carrier, proof that it was not customary, in exchanging checks from one transportation com- pany to another, to examine and see whether the baggage actually passed, is incompetent. G. & M. Trans. Co. vs. Young, 117 App. 257. A custom may not be competent as bearing upon negligence charged against defendant, and yet be competent if it tends to show whether plaintiff, at time of his injury, was in the exercise of ordi- nary care for his safety. Engel vs. Parmalee Co., 169 App. 410. Manufacturers : Where a charge of negligence is in the sudden starting of a detached car, upon which plaintiff was engaged in unloading brick, without previous notice of warning, by the collision of other cars being puslied back, evidence tending to show that the pushing of cars, instead of pulling them was not negligence, is inadmissible. The customs in other yards, as to pushing or drawing cars in such case is wholly inadmissible. Eollin'g Mill Co. vs. Johnson, 114 111. 57. In action for damages for an injury sustained by plaintiff while repairing a motor, which was suddenly started by some unknown person, it is proper for plaintiff to prove by electrician in charge of the electrical apparatus of the building, that he had told plaintiff, Avho was his helper, about a week before the injury, while they were discussing the condition about a certain other motor, that whenever he saw a motor in that condition, he should stop and fix it, at once. Marqnette Cement Co. vs. Williams, 230 111. 26. Building- Trades: Knowledge by a stone-setter, of a well recognized custom, in the erection of stone veneer buildings, for the brick masons to erect the scaffolding upon which the stone-setters worked, does not waive the right of the stone-setter to have his master provide for him a reasonably safe place to work, in absence of proof that his con- tract of employment was made with reference to such custom. McBeath vs. Eawle, 102 111. 626. Evidence that deceased, who was in charge of the handling of heavy loads by a derrick, and who was killed by the sudden drop- 392 CUSTOM AND USAGE ping of the boom as a load was being lowered, was standing, as was his custom, in place where he could reach the load as it descended and steady it to place, tends to shoAv he was exercising due care for his safety. Miroslawski vs. F. & L. Foundry Co., 232 111. 630. Cominercial Transactions : Evidence of a custom among real estate agents, that upon the termination of the agency by the pnncipal, the agent is entitled to two and one-half per cent commission on amount of rent for tho unexpired term of lease made prior to the termination of the agency, is admissible. Polzin vs. McCarthy, 159 App. 526. Where action is brought on special contract for commissions, custom and usual charge of real estate agents is inadmissible. Davidson vs. Zorger, 181 App. 113. A party dealing in a particular market is presumed to know all the customs of that market bearing upon the transaction in which he is engaged. Cothran vs. Ellis, 107 111. 413; Haas Lumber Co. vs. Harty Bros., 169 App. 323. Proof of custom of paying insurance premiums is admissible in action on contract to renew a policy. Hawthorne vs. German Ins. Co., 181 App. 88. One employing another to act for him in bujang and selling in a certain market, will be held as having intended that the busi- ness should be conducted according to the general usages and cus- toms of that market, although he did not know of their existence. Taylor vs. Bailey, 169 111. 181. Course of dealing competent on question of agent's authority. Bank of Saugatuck vs. Peters, 181 App. 432. Paddng- Companies: Evidence tending to show a general custom of shippers to climb fences between the pens wdiile attending to their stock, is competent, and the degree of care required of the defendant should be deter- mined in view of general practice of those rightfully on the premises. Franey vs. U. Stock Yards Co., 235 HI. 522. Where servant injured while doing work in a particular way at the master's direction, evidence that it was the master's custom to do the work in another way is admissible not for purpose of show- ing such way was safer, but as bearing on the question of assumed risk, as the servant assumes only the risks ordinarily incident to the master's business, and to his known manner of having it per- formed. Kennedy vs. Swift & Co., 234 111. 606. Evidence with reference to the location of buildings, tracks and cars, and of the usual manner of conducting the business, is com- petent, as shedding light upon the acts and conduct of the parties. St. Louis Stock Yards Co. vs. Godfrey, 198 lU. 288. Elevators: In action for injuries received while plaintiff was riding on a freight elevator, it is proper to prove that it was his custom, as well as the custom of the employes of other tenants of the build- DATE ;i9:j ing, to accompany freight being elevated or lowered by them, when the elevator was operated by defendant's agent. Springer vs. Ford, 189 111. 430. DATE See Alterations and Erasures. RULE OF FIXING. It is a well known rule of evidence that as a means of fixing the date of a given transaction, it may be proven by a witness that at a given time he heard of the transaction. Fisher vs. People, 103 111. 101 ; Miner vs. Phillips, 42 111. 128. JUDGMENT. The date of a judgment is as material as any other portion of it, and can no more be contradicled by parol evidence than the amount or character of the judgment. Wiley vs. Southerland, 41 111. 25. Parol evidence is admissible to show that an execution was issued before the judgment was entered. Baker vs. Barber, 16 App. 621 ; Humphries vs. Swaim, 21 App. 232. But further evidence that the judgment was written up two days later than its date and the date of the issuance of the execu- tion is inadmissible. Knights vs. Martin, 155 111. 486 CLERK'S CERTIFICATE. If the certificate of tbe clerk which constitutes the process for a tax sale is dated, the date is evidence of the time the certificate was made, without regard to the question whether it is or is not necessary to date such certificate. Glos vs. Dyche, 214 111. 417. ABSTRACTS OF TITLE. An abstract is presumed to have been made and signed at its date, such presumption being subject to rebuttal. C. & A. E. E. Co. vs. Keegan, 152 111. 413. FILING BILL IN CHANCERY. The record of a chancery suit containing a docket entry giving the general number of the suit, its title, names of attorneys and nature of the action, and which states that the suit was commenced on a certain date, sufficiently shows that the bill was filed on such date, since there is no way of beginning a chancery suit but by filing the bill. Miller vs. Eich, 204 111. 444. It cannot be shown by oral evidence that a bill was filed at a different date than was indicated by the file mark, endorsed by the clerk. Hodgen vs. Guttery, 58 111. 431. DEED. Execution : — Presumption: The date of a deed, in the absence of other proof, will be presumed to be the true date of its execution, not- 394 DATE withstanding the deed may not have been acknowledged until after- wards. Callegaa vs. Callegan, 259 111. 52 ; Darst vs. Dates, 51 111. 439. — Parol: Parol evidence is admissible to contradict the date of deed as not the date of its delivery ; the date of the instrument not being essential to its operation. Blake vs. Fash, 44 111. 302. Delivery : — Presumption: A warranty deed which has been delivered will be presumed in the absence of evidence to the contrary, to have been delivered on the date of its date. Kimball vs. City of Chicago, 253 111. 105; Redmon vs. Cass, 226 111. 120; Harden vs. Crate, 78 111. 533; Jayue vs. Gregg, 42 111. 413; . Stuart vs. Button, 39 111. 91; Dunneger vs. McConnell, 41 111. 227; Smiley vs. Fries, 104 111. 416; Walker vs. Doaue, 131 111. 27; XII 111. Notes 114, §179. . The presumption that a deed was delivered at its date is not re- butted by the fact that the certificate of acknowledgment bears a later date, nor by the testimony of the grantee that it did not come to his personal possession until after it was acknowledged, where the deed was procured l\v the grantee's attorney, and evidence does not show when the attorney received it. L. E. & W. E. E, Co. vs. Whitham, 155 111. 514; Smiley vs. Fries, 104 111. 416. (See Acknov^ledgments.) Filing: Where a prior deed is sought to be given in evidence to affect rights claimed under a subseiiuent deed, if it be attempted to show by parol that the former deed was recorded, with a view to notice, the time of recording should be shown. But parol evidence is not the best evidence to show that a deed was recorded, and should not be allowed unless the proper foundation is laid for secondary evidence. Harpham vs. Little, 59 111. 509. Parol evidence is competent as to time of filing. Cook vs. Hall, 6 111. 575; Eeed vs. Kemp, 16 111. 445; Nattinger vs. Ware, 41 111. 245. FORCIBLE ENTRY AND DETAINER. The precise date of the entry is immaterial, and it is not neces- sary to prove the entry to have been made on the day named by the complainant. Spurek vs. Forsythe, 40 HI. 438. PENAL ACTION. Cutting Timber: In a penal action for cutting timber, the allegation of the time is not essential, and tlie proof of the act on any other day after that alleged and before the commencement of the suit is sufficient. Gebhard vs. Adams, 23 111. 397. CONTRACT. Delivery : Presumption is that a contract was delivered on the day of its date, and the burden of proof is upon the party who alleges contrary. City of Paxton vs. Bogardus, 201 111. 628. DATE 395 Parol: fj Parol evidence is admissible to show date of contract. Lampke vs. Manning, 171 111. 612; School Dist. vs. Stilly, 36 App. 133; Horn vs. Booth, 22 App. 385. Priority as to various writinejs may be established by parol. Sehaepiu vs. Glade, 105 111. 62, PLEADINGS AND PROOF. Assumpsit on Contract: In assumj)sit upon a parol contract, the day upon which it is made being- alleged only for form, and where the time within which the contract is to be performed is not determined from that date, plaintiff is as liberty to prove a contract, express or implied, made at any time. Watson vs. Fagner, 208 111. 136; Singer vs. Hutchinson, 183 111. 606; Long vs. Conklin, 75 lU. 32; Trench vs. Canning Co., 168 111. 135. But if date or time is material, an allegation under videlicet is insufficient. Steel- Wedeles Co. vs. Choodock Co., 153 App. 577; Harrison vs. Thackaberry, 154 App. 2-46. Case: If time is averred under a videlicet, proof of exact date alleged need not be made. Pumphrey vs. Giggey, 150 App. 473 ; Rose vs. Mut. Ins. Co., 144 App. 434; City of Dubuque vs. Burhyte, 173 111. 553. A plaintiff is not held to proof that the injury was committed on the day alleged in the declaration, but may prove it to have been done at anv time within the statute of limitations. T. p. & W. Rv. Co. vs. McC;iannon, 41 HI. 238. NEGOTIABLE INSTRUMENTS. Execution : While the date of a note is prima facie pioof of date of its exe- cution, it is not conclusive. Hunter vs. Harris, 24 App. 637. Assignment : When the transfer of a negotiable note is made by indorsement without date, and the actual time of the transfer is not proven, presumption of law is that the note was transferred before matu- rity ; this presumption, however, is slight, and weak and may be overcome by proof. Bussey vs. Hemp, 48 App. 195; Cisne vs. Chidester, 85 111. 523. Where made without date, presumption is that it was of date of note, and presumption will prevail unless rebutted. White vs. Weaver, 41 111. 469; Rodriguez vs. Merrinian, 133 App. 372; Johnson vs. Loar, 145 App. 443 ; Kingsland vs. Koepper, 35 App. 81, But such presumption may be rebutted by evidence of actual date. Smith vs. Nevlin, 89 111. 193, Indorsement : It will he presumed that an undated indorsement was made at the date of the note. DeClerque vs. Campbell, 231 111. 442; Kingsland vs, Koepper, 35 App. 81. 396 DEADLY AVEAPONS DEADLY WEAPONS Judicial Notice: Such things as all persons of ordinary intelligence are pre- sumed to know are not required to be proven. It is not, there- fore, necessary on the trial of parties for an assault with a loaded pistol, and a hoe, with intent to murder, to prove that they were deadly weapons. Hamilton vs. People, 113 111. 34; Schwarz vs. Poehlman, 178 App. 235; Sleeting vs. Superior Tribe of Ben Hur, 161 App. 449. Defined: Any weapon likely to produce death ; any instrument by which death may be produced. Schwarz vs. Poehlman, 178 App. 235. A deadly weapon is one likely to produce death or great bodily harm by the use made of it. McNary vs. People, 32 App. 58. DEAF WITNESS Method of Examining: Where a witness is deaf his testimony may be secured by what- ever means are necessary and best adapted to the case, which is a matter resting largely in the discretion of the trial court ; and the mere fact that attorney, when examining such deaf witness in his own behalf, wrote the questions and handed them to him to read and answer does not show an abuse of the trial court's discretion. Harrison vs. Thackberry, 248 111. 512; Selenak vs. Selenak, 150 App. 399. DEATH SEVEN YEARS ABSENCE. Presumptions : — In General: The unexplained absence of a person from his usual place of abode for seven continuous years, and from whom no intelligence has been received within that time, raises the pre- sumption of death upon which the jury may act, where no suf- ficient facts or circumstances are proven to overcome the presump- tion. Donovan vs. Major, 253 111. 179; Policemen's Ben. Soc. vs. Eyce, 213 111. 9; Hintz vs. Alcrren, 170 111. 60; City of Litchfield vs. Keagy, 78 App. 398 ; XII 111. Notes 54, § 2. Where a person goes abroad and* is not heard from for a long time, the presumption of the continuance of life ceases at the expiration of seven years from the period when he was last heard from. Whiting vs. Nicholl, 46 111. 230. The presumption of death from seven years' unexplained absence does not, by law, arise until the full period elapses and the presumption of life will continue to the end of the seven DEATH 897 years, unless facts are proven which show the absent party prob- ably died sooner. Eeedy vs. Millizen, 155 111. 63G ; Eeed vs. Camfield, 159 111. 25-1. The presumption of death arises from a continuous al)sence abroad for seven years, during which time nothing is heard from the absent party by those who would naturally have heard from him if alive. From non-claimer of rights or exposure to peculiar sickness, death at an earlier period may be inferred. i:. "- Eobinson vs. Eo])iiison, 51 App. 317; Whiting vs. Nicholl, 46 111. 230. The general presumption is that life continues for seven years after an alisent party is last heard from, and after the lapse of that time, death is presumed; but the presumption is not conelu- sive and may be rebutted by proof of facts and circumstances inconsistent with and sufficient to overcome it. Johnson vs. Johnson, 114 111. 611. Seven years must elapse before the presumption of death arises. After that length of time, death is presumed, but there is no pre- sumption that the life continued throughout the entire period, or that it was not extinguished at any particular time within it. Johnson \s. Johnson, 114 111. 611. — liaising Presumption: In order to raise the presumption of death of a person after seven years' absence, there must be evi- dence of diligent inquiry at his last place of residence, and among his relatives and any other persons who would probably have heard from him were he living. Hitz vs. Ahlgren, 170 111. 60. Admissibility of Evidence: — Circumstantial: That the absentee was exposed to some spe- cific peril ; that he sailed in a vessel which had never been heard from, though many months overdue; that he was last seen as a passenger on an ocean steamer in mid-ocean, at night, and was never seen or heard of afterward though diligeiit search was made the next morning; that he made threats to commit suicide prior to his disappearance; that the condition of his health was des- perate; that he was afflicted with some disease likely to under- mine his health is competent. The health, age, habits, disposi- tion, manner of life, pecuniary circumstances and family rela- tions are all proper circumstances to be considered in tending to raise a just inference of death. Donovan vs. Major, 253 111. 179; Johnson vs. Johnson, 114 111. 611. And upon such question, proof that when the person disap- peared he was poor, disgraced by his own fault, advanced in years, and despondent, is not without probative force. But this may be contradicted by proof that when last heard from he had become more hopeful and had resolved by a future and better life to Avipe out the stain upon his name. Whiting vs. Nichols, 46 111. 230. All the conditions by which the presumption of life for seven years may be affected, such as health, age, habits, disposition, pecuniary circumstances, family relations, etc., may properly be considered in determining whether the life of the absent party continued the entire seven years or tenniuated sooner. Eeedy vs. Millizen, 155 111. 636. 398 DEATH — Jnquirii After Scv^n Years: An inquiry as to the where- abouts of a missing person during the i)i'riod oJ: seven years sub- sequent to his disappearance may be made after sueh seven years have elapsed, and proof that such inquiry has been made is not improper. Kennedy vs. Modern Woodmen, 243 111. 560. — Inquiry After Suit Brought: In action by beneficiary under an insurance benefit certificate to recover the amount thereof by reason of death of insured, based on presumption of death from seven years' absence, evidence relating to letters written subse- (juent to time of bringing suit is admissible when letters are part of investigation begun shortly following disappearance of insured. Kennedy vs. Modern Woodmen, 149 App. 471. — Hearsay: Hearsay evidence is admissible. Havriek vs. Modem Woodmen, 158 App. 570; Modern Woodmen vs. Graber, 128 App. 585. — Rumors: Mere rumor that an absent party not heard from for several years is dead or living, is not admissible in evidence either to aid or rebut the presumption of his life or death at a particular time after he was last heard from. Johnson vs. Johnson, 114 111. 611. — Reputation Among Ki)idred: The rule is that it is general reputation among kindred only of a deceased person that is admis- sible in proof of death, but this rule has been relaxed in cases where the deceased left no kindred that are known, and in such cases, reputation among the acquaintances of deceased is sufficient proof of the fact. Ein(;;hoiise vs. Keever, 49 111. 471. Weight and Sufficiency: — Preponderance Sufficient: In a civil suit the facts from which the law presumes the death of a missing person must be proven by a preponderanoe of the evidence, but it is not necessary that the evidence shall be sufficient to remove all reasonable doubt that such person is alive. Kennedy vs. Modern Woodmen, 243 111. 560; Affg., 149 App. 471. — Rumors: The mere rumor that a person has been seen does not necessarily rebut the presumption of death arising from seven years' unexplained absence, even though such rumor is not fol- lowed by diligent search and inquiry, but its probative force must be governed by the particular facts and circumstances of the case. Kennedy vs. Modern Woodmen, 243 111. 560; Cf. Johnson vs. Johnson, 114 ill. 611. — Hearsay: Where the only proof of a person's death was a statement of a witness, that a sister of the person said that such person "married a river man, and went on a boat, and the boat blew up and she got killed", it was held that while the evidence might perhaps justify a finding in favor of the person's death, yet it was not sufficient to set aside a contrary finding. Scheel vs. Eidman, 77 111. 301. Mere absence of a person from a place where his relatives reside, which is not his residence, and mere failure on the part of his rela- tives to receive letters from him for a period of seven years, are not of themselves, sufficient to raise the presumption of death. City of Litchfield vs. Keagy, 78 App. 398. DEATH 399 A man suddenly disappearing, under the age of fifty years, whose prospeet of life wi'.s good notwithstanding a slight ailment, who had no children, and whose relations with his wife were not cordial, who was being hai'assed by creditors he could not pay, who had said he was "going to leave the coujitry," and who, there was slight evidence, was seen in another state five or six years after his disai)pearance, will be taken to have lived the entire seven years. Eeedy vs. Millizen, 155 111. 636. — Date of Death: The rule is that a person is presumed to be dead who has not been heard of for seven years, leaving it incumbent upon the party who claims a benefit or interest in his being alive within that period, to prove it. At what particular time a party died is of no importance to a j^erson claiming a right which becomes established on a death, but it may be important to one resisting that right, and so it becomes an affirmative fact, which the party alleging must prove. Whiting vs. Nichols, 46 111. 230. Witnesses : — Credibiliti) : Where plaintiff relied upon 'the presumption of death from seven years' unexplained absence, a witness who tes- tified to having seen the missing man during that period may be impeached, and the mere fact that his testimony is not contra- dicted by any witness does not require the court, on motion to direct a verdict, to accept his testimony as true, but it is for the jury to determine his credibility and say whether the presumption of death is rebutted. Kennedy vs. Modern Woodmen, 243 111. 560. — Impeachment: Where the defendant draws out, on cross examination of plaintiff, an admission that she had been told that a certain woman reported having seen the missing husband of plaintifi within seven years after his disappearance, plaintiff is entitled to call witnesses to prove the reputation of such woman for truth and veracity was bad and that she had made conflicting statements on the matter. Kennedy vs. Modern Woodmen, 243 111. 560. CAUSE OF DEATH. Presumption : In absence of proof of cause of death, natural causes will be presumed. Knights Templar ^ s. Crayton, 209 111. 550 ; F. & C. Ins. Co. vs. Weise, 182 111. 496; Amer. Home Circle vs. Schneiter, 134 App. 601; Guardian Ins. Co. vs. Hogan, 80 HI. 35. Where the evidence shows that the deceased suffered an injury which caused his death, and there is no proof from which it can be determined w^hether the injury was accidental or self-inflicted, the presumption is that the injurv was accidental. Wilkinson vs. Aetnae Ins. Co., 240 111. 205. Admissibility of Evidence: — Circumstantial Evidence: Where there are no eye witnesses to the accident, the manner of death may be proven by circum- Waschow vs. Kelly Coal Co., 245 111. 516; Coinmon. Elec. Co. vs. Rose, 214 111. 545; Economy L, & P Co vs^ 8bpj-idau, 200 111. 439. 400 DEBT — Coroner's Inquisition: The verdict of a coroner's jury is competent prif. a facie evidence of the cause of death. Stollery vs. Cicero St. Ky. Co., 243 111. 290; Pyle vs. Pyle, 158 111. 289; Grand Lodge vs. Wieting, 168 111. 408; U. S. Life Ins. Co. vs. Voche, 129 111. 557. The legitimate object of the inquest is fulfilled in finding simply the cause of death. The expression of negligent cause in action for causing death is extraneous to the province of the inquest, and should be excluded or controlled by proper instruction. P. C. & St. L. Ky. Co. vs. McGrath, 115 111. 172; L. S. & M. S. Ey. Co. vs. Taylor, 46 App. 506; C. M. & St. P. Ry. Co. vs. Stack, 46 App. 499. But depositions taken at coroner's inquest are incompetent. Knights Templars vs. Crayton, 209 111. 550; P. C. C. C. & St. L. Ey. Co. vs. McGrath, 115 111. 172. CONTINUANCE OF LIFE. In bastardy i^roceediugs, where a cliild is shown by the evi- dence to have been once alive, and there is no evidence tending to show its death, the presumption is that it is still living. Lewis vs. People, 87 App. 588. A person who gave a power of attorney is presumed to have been alive, in absence of proof to the contrary, five years later, when certain deeds were executed for him by virtue of the power of attorney. C. & A. Ey. Co. vs. Keegan, 185 111. 70. Where it is shown that a certain person was living some years before trial of a suit, no presumption will be indulged, in absence of proof, that he has since died. Lowe vs. Fulk, 103 111. 58 ; Mosheimer vs. Usselman, 36 111. 233. "Where a pleading shows on its face that a person mentioned therein had been heard of within seven years necessary to raise the presumption of death, the presumption that such person is living results. Sinsheimer vs. Skinner Mfg. Co., 165 111. 116. DEBT See Penalties, Denial of Execution, Bonds. Burden of Proof: — ^il Debit: Where plaintiff in action of debt joins issue upon plea of nil debit, he must prove every allegation of his dec- laration. Poster vs. People, 121 App. 165. — Non Est Factum: Under such a plea, the burden of proof is upon defendant, the plea being an affirmative one. Sudgen vs. Beasley, 9 App. 71. Payment : riea of is a plea of confession and avoidance, and puts in issue no averment of the declaration. Smith vs. Lozano, 1 App. 171. Actions on Specialties: — Non Est Feictum: Puts in issue the giving of the instrument, DEBT 401 including delivery. It admits all material allegations of the dec- laration. Pritebett vs. People, 6 111. 525; FitzSimmons vs. Iliill, 84 111. 538; Osborne vs. Gaylonl, 13 App. 30; King vs. See, 6 Ap]). 189; Cully vs. People, 73 Ai)p. 501. Plea must be sworn to or does not put execution of bond in issue. Herriek vs. Swartoiit, 72 111. 340. Proof of the signature of a deed declared on need not be made where the plea interposed is not verified. Laiult vs. MeCullough, 130 App. 515. Is fully met hy introducing such a bond as is declared on. Smith vs. Lozano, 1 App. IT}. But under such a plea to debt on a bond to one person, a bond to two persons is inadmissible. Phillips vs. Singer Mfg. Co., 88 111. 305. In suit upon an executor's bond, when plea of non est fart urn is interposed, it is competent to prove by clerk of probate court that such bond is in his possession as part of the court papers in his office, received from his predecessor, as tending to show it to be the same bond referred to in the papers relating to the estate of deceased testatrix among the files of the court, and when in addition, it is shown by one witness that the names of defendants appearing on such bond are in their handwriting, the bond is properly admitted in evidence. Cully vs. People, 73 App. 501. In suit upon a Iwnd given upon an appeal to the supreme court, it is unnecessary to introduce a copy of the record of the judg- ment appealed from, when it is recited in the condition of the bond, as defendant is estopped from denying its existence. Herriek vs. Swartout, 72 111. 340; Smith vs. Whittaker, 11 111. 418. — Nul Till Record: Ntd tiel record is not proper plea to action. Suit is brought on bond and not on record. Arnott vs. Friel, 50 111. 175. In action on appeal bond, judgment is not sustained by evi- dence where there is no proof that there was default in payment of judgment mentioned in bond. Eabb vs. Thomas, 137 App. 255. Actions on Records: — In General: Where a record is the foundation of the action, a sufficient record must exist or be shown. But eveiy fact essen- tial to a recovery need not necessarily appear by the record. People vs. Baughman, 18 111. 152. — Judgments: Averment of affirmance, under plea of payment and non est factum, not being traversed, need not be proven. Smith vs. Lozano, 1 App. 171. — Money Counts: Judgments inadmissible under plea of nil debit nor can original consideration, upon which judgment ren- dered be recovered under common counts. Eunnamaker vs. Cordray, 54 111. 303. — Verbal Promise: Proof of defendant's promise to pay a binding judgment against him is incompetent. Eunnamaker vs. Cordray, 54 111. 303; McLean vs. McBean, 74 111. 134. Ev. — 26 402 DECEIT DECEIT See Fraud and Deceit. DECREE See Records, Judgments, Best and Secondary. DECEASED WITNESS See Former Testimony, Bill op Exceptions, Certificates op Evidence. DECLARATIONS See Admissions and Declarations. DEDICATION Presumptions and Burden of Proof: Dedication may be inferred from length of user and acqui- escence by the owner. Alden Coal Co. vs. Challis, 200 111. 222. Acceptance by a ' municipality, of streets and alleys, cannot be presumed from mere proof of execution and recording of the plat. Jordan vs. City of Chenoa, 166 111. 530. An acceptance by city or village of some of the streets and alleys appearing on a plat is presumed to be an acceptance of the entire system of streets and alleys, unless intention to limit is shown. Kimball vs. City of Chicago, 253 111. 105. Burden ol proof is upon one who asserts existence of highway by prescription, to show that user was open, notorious, exclusive, continuous, and uninterrupted for tifteen years, and was under claim of right, with knowledge of owner, and without his con- sent. Palmer vs. City of Chicago, 248 111. 201; Eose vs. City of Farmiug- ton, 196 111. 226; O 'Connell vs. Chi. Term. Co., 184 ill. 308. Burden is upon party alleging abandonment to prove same by clear and satisfactory evidence. Highway Comrs. vs. Kinahan, 240 111. 593 ; Cox vs. Comrs. of High- vi^ays, 194 111. 355. Admissibility of Evidence: — Parol 'i)i General: The Statute of Frauds does not apply to the dedication of ground to the public. It may be evidenced by acts, and declarations, and without any writing. No particular form is required to the validity of a dedication. It is purely a question of intention, the manner is immaterial. Wormley vs. Wormley, 207 111. 411; Alden Coal Co. vs. Challis, 200 111. 222. DEDICATION 403 — Direct Proof hrj Owner: The owner may testily as to what his intention actually was, and this testimony is to he consid- ered in comicetion with all the other facts and circumstances in the case. Town of Loviugton vs. Adkins, 232 111. 510 ; Town of Bethel vs. Pruett, 215 111. 162; Seidschlag vs. Town of Antioch, 207 111. 280; City of Chicago vs. C. R. I. & P. Ry. Co., 152 111. 561; O 'Connell vs. Bowman, 45 App. 654. — Flats and Flatting: That the owner of land, after making and recording a plat, conveyed by general warranty deed certain of the lots, in which deed the subdivision of the tract into lots, blocks and streets, and the recording of the plat are recited, tends to show a complete dedication. N. Chillicothe vs. Burr, 185 111. 322; MayAvoo.l vs. Maywood, 118 111. 61; Gridley vs. Hopkins, 84 111. 528; Field vs. Carr, 59 111. 198; Trustees vs. Walsh, 57 111. 363. The making of a plat, laying off land into lots and blocks, separated by streets and alleys, and the sale of lots thereafter by the owner, is evidence of a common law dedication of the streets to the public, even tliough the plat is defectively executed. Nelson vs. Randolph, 222 111. 531. AVhere the owner of land subdivides it, and makes and acknowl- edges and records a plat of the subdivision, designating thereon certain strips of land as streets or highways, such plat, though not made in accordance with the statutory requirements, will be evidence of an intention, as well as an oifer, to dedicate to the public a right of way over the strips thus designated' as at com- mon law. City of Chicago vs. Drexel, 141 111. 89. The owner of real estate is not bound by acts of others in respect to the property, done without his direction and not at his instance. The making of a plat by a stranger to the title, showing the dedication of a part of a lot for a street, and the building of a fence indicating the same thing, not shown to have been built by or for the other, is not evidence against him, of a dedication. City of Chicago vs. Johnson, 98 111. 618. Platting ground claimed may be admitted to show that owner had not dedicated same to use of public. Kelly vs. City of Chicago, 48 111. 389. — Explanation of Flat: Where a plat fails to indicate for what purpose a piece of land included in a boundary line was intended, subsequent user is admissible to explain. • fiorr City of Chicago vs. Vanlngen, 152 111. 624; Princeville vs. Anten, 77 111. 325. Where nothing appears to indicate for what purpose a grant or donation of land is made to the public, parol evidence is admis- sible to show the object to which it was to be devoted. Where the intention is made manifest, at the time of the dedication, as to the use, extrinsic evidence will not be received to show an inten- tion to devote the land to a different use. Berge vs. Citv of Centralia, 218 111. 503; Princeville vs. Auten, 77 111. 325; City of Chicago vs. Ward, 169 111. 392. — Acts and Declarations: The declarations of a land owner, 404 DEDICATION made at time of doing acts claimed to have constituted a dedica- tion, and also his subsequent declarations and acts, are admissible to show such owner's intentions. City of Ottawa vs Yentzer, IGO 111. 509; Smith vs. Town of Flora, 64 111. 93; XII 111. Notes 83, §50. An offer by an owner of land, to dedicate it for a public high- way, may be proven by his oral declarations. Woodbnrn vs. Town of Sterling, 184 111. 208. Acts and declarations of the grantor cannot be relied upon to establish a dedication, for street jDurposes, of land abutting upon a lot, where the plat with reference to wbich the lot was sold, and upon which the grantee relied, not only fails to indicate a street, but shows the ground to be platted as an inside lot, part of which the grantee purchased. Schneider vs. Sulzer, 212 111. 87. To establish a highway by dedication, it is not necessary that the intention on the part of the owner, to dedicate the same at the time the public began using it, should be shown. Such an intention may as well have been formed and entertained subse- quently. Town of Havana vs. Biggs, 58 111. 483. Declarations of one in possession of land, in disparagement of title of declarant, are admissible. So declarations of a former owner, while in possession, as to location of line of a street are admissible in evidence against one claiming under him. City of Elgin vs. Beckwith, 119 111. 367. — Not Listed for Taxation: The fact that a strip of land was not listed for taxation is admissi])le to show dedication, but is not conclusive. Poole vs. Lake Forest, 238 111. 305. — Owner's Motives: Where there is an intention by the owner to dedicate land to the public, and an act of dedication by him, upon acceptance by the public, of the easement, it becomes perfect and irrevocable, whatever may have been the personal motives of the owner in making the dedication. Agricultural Board vs. Holly, 169 111. 9. — Condemnation Proceedings: AVhere a common law dedica- tion of a part of a lot for a street is claimed from the acts of the city in grading the ground, and those of the owners, subsequent to proceedings to condemn the land necessary for the street, the record of such proceedings, although failing to show a condemna- tion of tlie property in question, is proper evidence to rebut the presumption of a dedication, and as explaining the conduct of the parties. City of Chicago vs. Johnson, 98 111. 618. Fencing Premises: Proof is admissible to show that owner, at ditferent times since fencing out, maintained cross fencing, cultivated ground and forbade authorities from working strip. -.:•:, Waggeman vs. Village, 42 App. 132. Or that he resisted use of highway fenced off. Fox vs. Yergen, 5 App. 515. Adjusting Assessment: The compromising with a city in respect to the amount of special assessment upon a lot, whereby DEDICATION 405 the owner pays less than the sum assessed, is not evidence of an intention to dedicate any part of the lot for a street, where such compi-omise is made pending a suit between the lot owner and the city to recover the part claimed to be dedicated. City of Chicago vs. Johnson, 98 111. 618. — Condition in Deed: Condition in a deed that grantee should permit certain tract to be open, is admissible to show dedication by grantor in such deed. Eicheson vs. Eicheson, 8 App. 204. — User: Acceptance may be shown by user by the public, or acts of officers. No express act of dedication is necessary, and consent may be implied from acquiescence and user by the pub- lic, and the user does not depend upon any fixed period of time. The user by the public must be in such a way and at such a time as that the public accommodation and private rights will be materially affected bv the interruption of "the enjoyment. Alden Coal Co. vs. Challis, 200 111. 222. Weight and Sufficiency of Evidence: — Acts and Declarations: In order to constitute a dedication of land for a public highway, it is not essential that the intention be evidenced by words, either written or spoken. If the acts of the party indicate an intention to dedicate the land to a public use, it is sufficient, and if the dedication is accepted by the pub- lic, as by use and travel, it is complete. It is trae the acts may be explained by an agreement or other circumstances rebutting an intention to dedicate, but if the acts are unexplained, they will prove a dedication. Wragg vs. Penn Township, 94 111. 11. A dedication for a right of way for a highway may be estab- lished by a grant or written instrument, or by the acts and dec- larations of the owner of the premises. It may be inferred, from long and uninterrupted user by the public, with the knowledge and consent of the owner, but there must be clear intent shown to make a dedication ; the evidence should be clear, either of an actual intent to do so, or of such acts and declarations as will equitably estop the owner from denying such intent. Mclntyre vs. Storey, 80 111. 127 ; Warren vs. Jacksonville, 15 111. 236. — Blank in Plat: The leaving of a blank space in a plat, with- out any designation of purpose, is not sufficient proof of an inten- tion of the owner to dedicate to public use the premises so undes- ignated. Poole vs. Lake Forest, 238 111. 305. Undesignated part does not, of itself, show dedication. But parol evidence is admissible to show the object to which it was to be devoted. Where the intention is made manifest, at the time of dedication, as to the use, extrinsic evidence will not be received to show an intention to devote the land to a different use. Birge vs. City of Centralia, 218 111. 503; Village of Princeville vs. Auten, 77 111. 325. The fact that the owner marked a certain strip "depot" upon a plat of a tract of land into blocks and lots, negatives the idea of an intention to dedicate use to public. McWilliams vs. Morgan, 61 111. 89. 406 DEDICATION — Judgment Recovered for Ohstructing : The record of a judg- meut recovered against a party in a suit by the town authorities for obstructing a highway, is not conclusive evidence of . the exist- ence of a public highway at the point in dispute, in suit by the owner of the hind to enjoin such town authorities from opening a road over his hmd at the disputed point. Mclntyre vs. Storey, 80 111. 127. — Fencing Out Road: Tlie construction of a fence by land owner, so as to leave out a strip of land claimed to be a highway, is not conclusive evidence of a dedication. Ottawa vs. Yentzer, 160 111. 509; Sehiiitz vs. Eitterholtz, 20 App. 614. The fact that a party fenced out the road in controversy, through a tract of land owned by him in one town, is not evidence tJiat he intended to dedicate to tiie public the land over which said road passes througli another tract of his land in another town, where he fenced up same soon after he became the owner of it. Grube vs. Nichols, 36 111. 93. — Building Sidewalk: The building of a sidewalk on a lot by the owner of the same, so as to show ground left for a street, made while the lot was in the adverse possession of another, and in obe- dience to the requirements of an ordinance, and under the mis- taken belief that part of the lot had been condemned, is not evi- dence sufficient to show a conniion law dedication. City of Chicago vs. Johnson, 98 111. 618. — Reference in Deed: A deed by one owning a lot shown by the plat to be a certain width, which describes the tract conveyed, as * * * "thence running to a public alley/' does not consti- tute a dedication for a public alley of the part of the lot not spe- eificially conveyed. Carlinsville vs. Castle, 177 111. 105. If the term "alley" is used in a deed, or in a plat, it will be taken to mean private alley, where the word "private" is pre- fixed, or where the context requires that a different meaning than of a public allev is to be given the term. Chicago vs. Borden, 190 111. 430. Requisites of a common law dedication are, (1) an intention of the owner to donate the land to a public use, (2) acceptance thereof by the public, and (3) proof, clear and unequivocal, of these facts. Chicago vs. C. E. I. P. Ey. Co., 152 111. 561. To establish a public highway, by prescription, the use by the public must be shown to have been adverse, under claim of right, continuous, uninterrupted, and with knowledge of the owner of the estate; and proof of occasional travel is not sufficient. Chicago vs. Wilder, 240 111. 215. Before title can be divested by dedication, the proof must be very satisfactory, either of an actual intention to dedicate, or of such acts or declarations as will equitably estop the owner from denying such intention. The two prominent elements to be considered in determining whether there has been a common law dedication or not, are the iiitention of the owner to dedicate, and the acceptance by the pub- DEDICATION 407 lie of tlie intended dedication. The land owner must do some act, or suffer some act to be done, from wliich it can fairly l)e inferred that he intended a ciedication to the public. City of Chicago vs. Stinson, 124 111. 510; Blooiiiin<,'ton vs. Cemetery Assn., 126 Til. 221; Kyle vs. Town of Logan, 87 111. 64; XII 111. notes 71, § 3. >•. ,•'!' — As to Intent: And it is essential that the proof be clear and iineciuivocal as to tlie intention of the proprietor to dedicate to public use. City of Chicago vs. Wilder, 240 111. 215. To establish a dedication, it should clearly appear that the owner intended to give the land to tlie public. It is not enough to show that it is not intended for private use. The particular use for which the land was intended must plainly appear. Poole vs. Lake Forest, 238 111. 305. — As to Acceptance : There must be an acceptance by the pub- lic. It may be express or implied. When the dedication is bene- ficial or greatly convenient or necessary to the public, an accep- tance w411 be implied from slight circumstances. Owen vs. Villuge of Brookport, 208 111. 35; Wormley vs. Wormley, 207 111. 411. . . . ^ ni i.oaiiir.Kr. Eecognition of a road by public authorities is not essential to its establishment as a pubic highway by prescription. Town vs. Gallagher, 159 111. 105. Public acceptance of land for highway purposes is strongly indi- cated by evidence that the municipality accepted and retained the deed, put in a stone culvert with graded approaches, gravelled and macadamized a part of the highway and cut weeds and under- brush therefrom, and some years afterwards accepted a deed from another owner extending- such highway. Woodburn vs. Town of Sterling, 184 111. 208. Proof that alley lymg outside the limits of a municipality, but dedicated to the pulilic, was traveled for years, without obstruc- tion, by all persons going that way, that there was a well detined track its entire length and that repairs were made thereon by the public authorities, is sufficient to show public acceptance of the dedication. There must be some evidence of adoption by the public, such as user or some other act indicating acceptance by those authorized in such matters to represent the public. All the facts are admis- sible in evidence, and what will amount to an acceptance depends upon the circumstances and conditions. Fairbury Agricultural Soc. vs. Holly, 169 111. 9. To justify a claim that land has been dedicated by the owner for public use, the proof should be very satisfactory, either of an actual intention to dedicate, or of such acts and declarations as should equitably estop the owner from denying such intention. Wollcott vs. City of Chicago, 187 111. 504; City of OttaAva vs. Yent- zer, 160 111. 509; Waggeman vs. N. Peoria, 155 111. 545. The intent cannot be a secret one, but must be one which is expressed in the visible conduct and open acts of the owner. A dedication is not an act of omission to assert a right, but is the ^affirmative act of the donor resulting from an active and not a 408 DEDICATION passive condition of the owner's mind on the subject. A mere non-assertion of right does not establish a dedication unless the circumstances establish a purpose or intention to donate the use to the public. Stacy vs. Glen Ellyn Hotel Co., 223 111. 546. To establish a common law dedication of land for a highway, it must be proven, clearly and unequivocally, that there was an intention to dedicate and an acceptance by the public. Wheatfield vs. Grundman, 164 111. 250. But where it is sought to be shown that a road is a public high- way, by proving that it has been known and used as a highway common to all people, for the statutory period of prescription, it is unnecessary to show the original intent of the owners of the soil. Town of Madison vs. Gallagher, 159 111. 105. Estoppel: Where property is subdivided and a plat made thereof which does not comply in every respect with the statute, but which is recorded, there is a common law dedication, and if the owner of lots designated on such plat conveys according to the description contained in the plat, and by reference thereto, he adopts the plat with all its dedication, and he and those who succeed to his title are estopped to deny such dedication. Marshall vs. Lynch, 256 111. 522. A defective dedication under the statute may be such evidence of a common law dedication as to constitute an estoppel. Kussell vs. City of Lincoln, 200 111. 511 ; Clark vs. McCormick, 174 111. 164; Augusta vs. Tyner, 197 111. 242; Marsh vs. Fairbury, 163 111. 401 ; XII 111. Notes 79, § 34. Where public authorities take legal steps, upon petition, to take a strip of land to widen a street, and appoint commissioners to assess damages, etc., this will be an admission that will estop them from claiming a prior dedication. Town of Princeton vs. Templeton, 71 111. 68; City of Chicago vs. Johnson, 98 111. 618; Mclntyre vs. Storey, SO 111. 127. The owner of land cannot exercise his statutory right to vacate his plat even though no lots have been sold, if such vacation will result in destruction of valuable intervening public rights which he has created ; and this is true whether dedication is statutory or common law. Stevenson vs. Lewis, 244 111. 147. A plat showing a square named and marked "private" will estop a claim that such land was not dedicated to public use where lots are sold by o^^^ler with reference thereto as public ground. Village vs. McLain, 210 111. 308 ; Smith vs. Heath, 102 111. 130. In a prosecution for obstructing an alleged street by fences, evidence that defendant, before building the fences, went to the streets and alley committee of the village and requested permis- sion to build a lane across the strip of ground, calling it a street, which request was denied, is not admissible, as an estoppel cannot rest upon what defendant said, the request being denied. People vs. Johnson, 237 HI. 237. DEEDS 409 DEEDS See Delivery, Consideration, Good Faith, Date, Description, Possession, Title, Ejectment, Identity, Acknowledgments, Am- biguity, Alterations and Erasures, Parent and Child, Husband and Wife, Fiduciary Relations, Forcible Entry and Detainer, Cloud on Title, Color op Title, Tax Deeds, Lost Instruments, Parol, Best and Secondary. Admissibility : — Guardian's Deed: Where record fails to show that the guar- dian had reported the sale or that it was confirmed, such deed does not transfer the title of the minor. Phelps vs. Nazwortby, 226 111. 254; Musgrove vs. Conover, 85 111. 374; Young vs. Keougb, 11 111. 642. — Master's Deed: W^here a decree authorizes the making of a deed, and it has been made, it is legitimate evidence of the title. Order of confirming sale need not be shown. Eetlmond vs. Cass, 226 111. 120 •; Walker vs. Schum, 42 111. 462. — Slie riff's Deed: Judgment, execution and levy must be pro- duced before deed can be read as evidence of title. Stribling vs. Prettyman, 57 111. 371. Return of execution need not be proven. Holman vs. Gill, 107 111. 467; Kinney vs. Knoebel, 47 111. 417, A sheriff's deed, and a certified copy thereof, is prima facie evidence of the existence, the issuing and contents of the execution under which land has been sold. Keith vs. Keith, 104 111. 397. But when it becomes necessary to rely upon a sheriff's deed as a link in chain of title, the party is only required to produce the judgment and execution thereon and the sheriff's deed for the premises. Livingston vs. Moore, 252 111. 447. — Tax Dc( d: A tax deed cannot be received as evidence of paramount title unless proceedings anterior to execution of tax deed, required by statute, — that is, a judgment, precept, notice, etc., have been had. Glanz vs. Ziabek, 233 111. 22; Met. El. Ey. Co. vs. Esehner, 232 III. 210; Kepley vs. Scully, 185 111. 52; Anderson vs. McCormiek, 129 111. 308. So one desiring to avail himself of effect of a tax deed as evi- dence of title and not color of title merely, should introduce in evidence the anterior proceedings on which same is founded. Kepley vs. Foulke, 187 111. 162. — Foreign Deed: A deed executed in a foreign state and acknowledged before a notary public there, the certificate of acknowledgment being in due form under our statute, and authen- ticated by the seal of the notary, is properly admitted in evidence without a certificate that acknowledgment was in conformity with laws of the foreign state. Glos vs. Gerrity, 190 111. 545. Foreign deed acknowledged in conformity with laws of foreign state is admissible. Esker vs. Hefferman, 159 111. 38. 410 DEEDS Proof of proper acknowledgment in foreign state may be made by introduction of statute book of such state. .'. .;. t'l Shooting Club vs. Crosby, 181 111. 266. • -^Wariunty Deed: A warranty deed without proof of pos- session or title in the grantor is not proof of title in the grantee. ■ Godfrey vs. Dixon Power Co., 247 111. 124; Met. El. Ey. Co. vs. Eschor, 232 111. 210; Glos vs. 2^1iller, 213 111. 22; Hewes vs. Glos, 170 111. 436; Doty vs. Burdick, S3 111. 473; McGowan vs. Glos, 258 111. 217. In ejectment by a corporation entitled to hold real estate for any purpose, the deeds under which it claims title cannot be denied admission upon alleged ground tliat tlie corporation exceeded its powers in taking convevances. C. & A. Ey. Co. vs. Keegan, 185 111. 70. Execution of Deed: Certificate of acknowlpdcjment is priyaa facie proof of execution. Spencer vs. Eazor, 251 111, 278; Sehroeder vs. Smith, 249 111. 574. The execution of a deed cannot l)e proven by secondary evi- dence unless the fact of the loss or destruction of the alleged deed is first proven. Switzer vs. Homi, 254 111. 621. When a deed is properly acknowledged and recorded, it is prop- erly admitted in evidence, without further proof of its execution. McConnell vs. Johnson, 3 111. 522 ; Sehroeder vs. Smith, 249 111. 574. Certified copy of the record of an unacknowledged instrument is incompetent as evidence. Winter vs. Dibble, 251 111. 200. But a deed which has been on record more than thirty years is an ancient deed, and a certified copy thereof is admissible in evi- dence although the deed was not acknowledged as required by the law in force when it was executed. Bradley vs. Lightcap, 201 111. 511. Recording : Parol evidence is competent as to time of filing of deed. Cook vs. Hall, 6 Til. 575; Eeed vs. Kemp, 16 111. 445; JSTatthinger, vs. Ware, 41 111. 245; Tucker vs. Shaw, 158 111. 326; Dowie vs. C. & N. W. Ey. Co., 214 111. 49. But parol is not the best evidence of the time of recording, and should not lie allowed unless the proper foundation is laid for secondary evidence. Harpham vs. Little, 59 111. 509, Where a prior deed is sought to be given in evidence to affect the rights claimed under a subsequent deed, if it be attempted to show by parol that the former deed was recorded, w4th a view to notice, the time of recording should be shown. Haipham vs. Little, 59 111.' 509. Description : As between grantor and grantee and their privies, parol is not admissible to show descriptioi]* written in deed is wrong. Duggan vs. Uppandahl, 197 111. 179. But latent ambiguity, sueli as omission to refer to any meridian, mav be obviated by proof. r, ' Dougherty vs. Purdy. 18 111. 206. Or failure to state number of township north, Clark vs. Powers, 45 111. 284. '-^-i .irniuT DEEDS AS MORTGAGE 411 Or omission of number of block, in describing premises. " Youu^- vis. Lorain, 11 111. 625. Consideration : Recital in deed is hearsay and inadmissible. Spohr vs. Citv of Chicago, 20G 111. 411 ; O 'Hare vs. C. M. & N. Ey. Co., 139 111. 151. DEED AS MORTGAGE Presumption : The law presumes a deed is what it purports to be, — an abso- lute convevanee. Gannon vs. Moles, 209 111. 180; Williams vs. Williams, ISO 111. 361; Cray vs. Hayhmst, 157 App. 4SS; Fisber vs. Gieen, 142 111. 8U; Green vs. Capps, 142 111. 286. Burden of Proof: One asserting a deed, absolute on its face, to be a mortgage has the burden of proof. 1 1 "l Deadman vs. Yantes, 230 111. 243; Eankin vs. Eankin, 216 111. 132; Williams vs. Williams, ISO 111. 361; Heatou vs. Gaines, 198 111. 479; Kuowles vs. Knowles, 86 111. 1; Xili 111. Notes, 6Ul, § 31. Parol Evidence: Parol evidence is admissible to show that a deed absolute on its face, whatever its covenants, was intended as a mortgage. ,, Conant vs. Eiseborougli, 139 111. 383; Bearss vs. Ford, 108 111. 16; Knowles vs. Knowles, 86 111. 1; Herritt vs. Dement, 57 111. 500; Eeigard vs. McNeil, 38 111, 400; Purvain vs. Holt, 8 111. 395. But not as a defense in action of ejectment. Ladd vs. Ladd, 252 111. 43; Finlon vs. Clark, 118 111. 32. Parol evidence is admissible so far as it conduces to show the relations of the parties, or to show any other fact or circumstances of a nature to control a deed, and to establish such an equity as would give a right to redemption and no further. Sutphen vs. Cushman, 35 111. 186. Deed intended as a mortgage may be rendered an absolute con- veyance by parol. Hutchinson vs. Page, 246 HI. 71. The kind of parol evidence properly receivable to show an abso- lute deed to be a mortgage is that of facts and circumstances of such a nature as in a court of equity will control the operation of the deed, and not of lose declarations of parties, touching their intentions and understandings. Lindauer vs. Cummiugs, 57 ^11. 195. The fact that land was conveyed only as a security for a debt may be shown by parol evidence, although a written defeasance may be in existence. Tilson vs. Molten, 23 lU. 648. And as to subsequent purchasers, with knowledge of transaction. Shafer vs. Woodard, 28 111. 277. Deed may be shown to be a mortgage by admissions and dec- laration of grantee. Eeichman vs. Alwood, 71 111. 155. Or of a third person, to whom the party to be charged has referred another for information. Bartoletti vs. Hoerner, 154 App. 336. 412 DEFAULT Weight and Sufficiency: The proof must be clear, satisfactory and convincing. Deadman vs. Yantis, 230 111. 243; Eankin vs. Eankin, 216 111. 132; Heaton vs. Gaines, 198 111. 479; Burgett vs. Osborne, 172 III. 227; Williams vs. Williams, 180 111. 361; Bartling vs. Brashun, 102 111. 441; XIII ill. Notes 601, §31. A deed is never held a mortgage on vague and uncertain or doubtful evidence. Blake vs. Taylor, 142 111. 482 ; Smith vs. Cramer, 71 111. 185. The burden of overcoming the presumption that a deed is what it purports to be is not established by a mere preponderance of the evidence. Heaton vs. Gaines, 198 111. 479 ; Martinet vs. Duff, 178 App. 199. must appear that a debt existed from the mortgagor to the mortgagee. Gannon vs. Moles, 209 111. 180; Heaton vs. Gaines, 198 111. 479; Freer vs. Lake, 115 111. 662; Eue vs. Dole, 107 111. 275. Proof must show that an obligation existed between the parties to the deed, which that instrument was intended to secure. Burgett vs. Osborne, 172 111. 227; Bartoletti vs. Hoemer, 154 App. 336. It is not enough to show merely a parol agreement to reconvey; there must be a continuing valid indebtedness secured by the deed, which may be enforced by action at law, or it is not a mort- gage, whatever else it might be. Batcheller vs. Batcheller, 144 111. 472. DEFAULT See Abatement. Admission by Default: The entire cause of action, except the amount of damages, is admitted by a default. Eeid Murdock Co. vs. Bank, 135 App. 49; Phoenix Ins. Co. vs. Hed- rick, 73 App. 601; Cook vs. Skelton, 20 111. 107. But the amount of damages must be proven notwithstanding the default. Pflaff vs. Pac. Ex. Co., 251 111. 243; Hemington vs. Stevens, 26 111. 298. Right to Introduce Evidence After Default: Defendant is not permitted to introduce substantive defense. Default admits the material allegations of the declaration and the only question remaining for trial is amount of damages. He has right to cross examine plaintiff's Avitnesses on question of dam- ages, but not in support of special pleas, and may introduce evi- dence to reduce amount of recovery. Pflaff vs. Pacific Express Co., 251 111. 243; Wolf vs. Powers, 241 111. 9; First Natl. Bank vs. Miller, 235 111. 135; Foreman Shoe Co. vs. Lewis, 191 111. 155; Phoenix Ins. Co. vs. Perkey, 92 111. 164; Binz vs. Taylor, 79 111. 248; XII 111. Notes 48, § 231. Motion to Set Aside Default: Counter affidavits are admissible. Hartford Ins. Co. vs. Eossiter, 196 111. 277; Hefferling vs. VanZandt, 162 111. 162 ; Swigart vs. Holmes, 96 App. 43 ; Holliday vs. Tuthill, 94 App. 424. DELIVERY 413 But court cannot try inerits of cause in hoarinf? motion on such affidavits, but it is necessary for the defendant to show a defense prima facie on the merits. GiU'lirist Trans. Co. vs. N. Grain Co. 204 111. 510; Mondell vs. Kim- ball, 85 111. 582. DEGREE OF PROOF See Weight and Sufficiency, Penalties, Reasonable Doubt. DELIVERY See Account Stated, Acknowledgments, Bailment, Bonds, Fraudulent Conveyances, Gifts, Presumptions, Assent, Burden OF Proof. INTENT. To make delivery, which is essential to the validity of a deed, the grantor must part with all dominion, power and control over the deed and must retain no rij^ht to reclaim or recall it. Stevens vs. Stevens, 256 111. 140; Kavanaugh vs. Kavanaugh, 260 111. 179. The delivery of a deed is an essential part of its complete execu- tion and is almost wholly a matter of intention. For the purpose of showing intention parol evidence is admissible. Hathaway vs. Cook, 258 111. 92. *• It is not necessary that there should be actual manual delivery of the deed. Prince vs. Prince, 258 111. 304. The very essence of delivery is the intention of the parties and is the controlling element. Hoyt vs. Nortlnip, 256 111. 604; Miller vs. Hears, 155 111. 284; Trubey vs. Pease, 240 111. 513; Creighton vs. Roe, 218 111. 619; ShuUz vs. Shultz, 159 111. 654; XII 111. Notes 97, §42. And the delivery of a deed will be presumed from slight cir- cumstances where there is proof of an intention on the part of the grantor to convey to the grantee. Crabtree vs. Crabtree, 159 111. 342. The delivery of a written contract is not indispensable to its binding effect, and such delivery is not conclusively proven by merely showing the placing of the paper by one of the alleged con- tracting parties in the hands of the other. Delivery is a ques- tion of intent and it depends upon whether the parties at the time meant it to take effect presentlv. Jordan vs. Davis, 108 111. 336. The intention to deliver, on the one hand, and of acceptance, on the other, may be shown by direct evidence of the intention, or may be presumed from acts and declarations or both acts and declarations, of the parties, constituting part of res gestae, which manifest such intention. In like manner, the presumption of a delivery may be rebutted or overcome by proof of a contrary intention, or of the acts and declarations from which the contrary presumption arises. Price vs. Hudson, 125 111. 284. 414 DELIVERY In ease of a voluntary conveyanee, the retention of the deed in the possession of the grantor will not destroy its etfeet as a deed, unless there are circumstances showing it was not intended to be absolute and to operate as a present conveyance. Ployt vs. Northup, 256 111. 604. For the purpose of showing intention parol evidence is admis- sible. Where a deed has been actually delivered to the grantee in the life time of the grantor, even though it contains a provision that it is not to take effect until the grantor's death it will be sus- tained as a present grant of a future interest. Hathaway vs. Cook, 258 111. 92; Noble vs. Fickes, 230 111. 594; Rliackleton vs. Sebree, 86 111. 616. PRESUMPTION. Deeds : — Possession: Where a deed duly executed is found in the pos- session of the grantee named therein, it is presumed to have been properly delivered. "Hathaway ys. Cook, 258 111. 92; Schroeder vs. Smith, 249 111. 574; Iniiiau vs. Svvearingeii, 198 111. 437; Diinlop vs. Laml), 182 111. 319; McCanii vs. Atherton, 106 111. 31. And presumption prevails though the parties to the instrument were in the lifetime of the grantor, members of the same family. Schroeder vs. Smith, 249 111. 575; Inman vs. Swearingen, 198 HI. 437; Lines vs. Willey, 253 111. 440. Where deed is found in the possession of grantee after death of grantor delivery is presumed in absence of evidence to the contrary. ;r'!i (If; fff ff^rttni; -.rl f,lii Brock vs. Stines, 258 111. 346; Blake vs. Ogden, 223 111. 204. — Recording: The execution and recording of a deed raises the presumption in law that the grantor intended to divest himself of title, and unless such presumption is rebutted it must be held the deed was delivered. Spencer vs. Eazor, 251 111. 278; Brady vs. Huber, 197 111. 291; Harshbarger vs. Carroll, 163 111. 636; Heimes vs. Keighblinger, 14 HI. 469. And is prima facie evidence of delivery. Konser vs. Konser, 219 111. 466; Calkins vs. Calkins, 220 111. 111. And this although grantor retained possession of the deed, where grantee is infant son of grantor. Decker vs. Stansberry, 249 111. 487. But such presumption is not conclusive and may be rebutted. Hathaway vs. Cook, 258 111. 92; Wilenou vs. Ha'nlon, 207 111. 104; Clark vs. Harper, 215 111. 24; Warron vs. Jacksonville, 15 111. 236; Ackman vs. Potter, 239 111. 578. — Voluntary Settlements: The presumption in favor of deliv- ery of a deed in case of a voluntary settlement is stronger than in ordinary bargain and sale. Prince vs. Prince, 258 111. 304; Weigran vs. Eutschke, 253 111. 260; Eiegel vs. Riegel, 243 111. 626; Ward vs. Conklin. 232 111. 553; Kirk- wood vs. Smith, 212 111. 395; XII 111. Notes 113, § 176. And this is especiallv true where the grantee is an infant. Thurston vs. Tiibbs, 257 111. 465; Decker vs. Stansberry, 249 111. 487; Baker vs. Hall, 214 111. 364; Schultz vs. Schultz," 159 111. 654; Blankeriship vs. Hall, 233 111. 116. — Date of Delivery: In absence of evidence to contrary, pre- sumption is that a deed is delivered on day of its date, and fact DELIVERY 415 that acknowledgment bears a later date does not rebut the pre- sumption. Kcdman vs. C:iss, f226 111. 120; Walker vs. Doane, 131 111. 27; Stuart vs. Dutton, o!) HI. 91; Jayne vs. Gregg, 42 111. 413. But such presumption is not conclusive and may be overcome by proof. Whitman vs. Henneberry, 73 111. 1(>9. (See Acknowledgments.) Letters : (See Letters.) Personal Property as Payment: AVliore there is an agreement to pay a certain sum by the deliv- ery of specified articles of personal property, but no date for delivery is fixed, the law will presume delivery to be made on demand or within a reasonable time. McKinnie vs. Lane, 230 111. 544. And a failure to deliver as agreed converts the transaction into a money obligation. Slaiiter vs. Wallbaum, 45 111. 44. Date of Contract: The presumption is that contract was delivered on the day of its date, and burden is upon party alleging contrary. City of Paxton vs. Bogardus, 201 111. 628. PAROL EVIDENCE. Conditional Delivery: — In General: While it may be shown that a deed or contract is not to be delivered until a condition is performed, yet it cannot be shown by parol that actual delivery was made under an agree- ment that a condition should be performed, and that the contract or deed should not be operative unless it was performed. In the one case, the purpose of the proof is to show want of legal deliv- ery, but in the other case, the eifect of the proof is to contradict an instrument absolute on its face, by showing, contrary to its terms, that it was not absolute but conditional. Eyau vs. Cook, 172 111. 302; Eyan vs. McArdle, 159 App. 579. — Contracts: If a contract is delivered to the obligee or his agent, and not to a stranger, it is absolute, and parol evidence of conditions qualifying the delivery or its operation is inadmissible. Baiim vs. Parkhiirst, 26 App. ^128; Haven vs. Chi. S. D. Co., 96 App, 92; Chi. Steel Co. vs. Clark, 87 App. 658. Though parol evdence is not admissible to vary the terms of a wrtten contract, yet such evidence is always competent to shov/ that by reason of the circumstances under which the instrument was executed, it did not take effect. Bellville Sav. Bank vs. Bowman, 124 111. 200; Biederman vs. O 'Conner, 117 111. 493; Hartley vs. Gilhofer, 109 App. 527; Demesney vs. Gravelin, 56 111. 93. ' Possession of a written agreement by a party thereto, after its execution by the other party, raises presumption of delivery. Diinlop vs. Lamb, 182 111. 319. But is not conclusive. Biederman vs. O 'Conner, 117 111. 493. — Deed: Where an actual delivery of a deed is made to a 416 DEMA^TO grantee or his agent, parol evidence is inadmissible to show that delivery was in escrow. Clark vs. Harper, 215 111. 24; Fletcher vs. Shepard, 174 111. 262; Baker vs. Baker, 1.59 111. 394; Weber vs. Christen, 121 111. 91; Stevenson vs. Crapnell, 114 111. 19; McCann vs. Atherton, 106 111. 31. If there was a delivery in escrow upon conditions which were subsequently performed, jjurden is upon grantee to sliow what con- ditions were and their performance. Kavaiiaiigh vs. Kavaiiaugh, 260 111. 179. Conditions of delivery in escrow may be shown by parol, Osby vs. Eeynolds, 260 111. 576. — Bond: It cannot be shown by parol that a bond was deliv- ery to a principal on condition that another signs as co-surety before delivery to obligee, if fact was unknown to such obligee. Comstock vs. Gage, 91 111. 329; Smith vs. Peoria Co., 59 111. 412; Chi. Pressed Steel Co. vs. Clark, 87 App. 658. — Negotiable Instrument: Delivery of, between parties other than holder in due course, may be shown by parol to have been conditional. Straus vs. Citizens State Bank, 164 App. 420. OPINIONS OF WITNESSES. Whether an instrument was delivered or not, is a question of fact, and the statements of a witness that it was, is a mere legal conclusion, and therefore, incompetent. Burnal vs. Sharpsteen, 149 111. 225. DEMAND See Bailments, Confusion of Goods, Forcible Entry and Detainer, Replevin, Trover and Conversion. DEMONSTRATIVE EVIDENCE :, i See Exhibition of Injury, Experiments, View^ by Jury, Phys- ical Examination, Photographs, Magnifying Glass, Diagrams^ Plats, Illegally Obtained Evidence. In General: Exhibits for inspection of jury are within discretion of trial court, which will not be interfered with unless abused. In many cases the exhibition of physical objects may explain and illustrate better than anything else the occurrence under in- vestigation, in others, they may only tend to mislead and confuse. Zipkie vs. City of Chicago, 117 App. 418. It is common practice, justified by judicial decisions, to dis- play before the jury, and to formally introduce in evidence, phys- ical objects which form a part of or serve to illustrate the trans- actions on occurrence which is the subject of investigation. Evi- dence of this character is frequently resorted to, both in civil and criminal cases, and the propriety of its use cannot be successfully called into question. Painter vs. People, 147 111. 444. In criminal cases exhibits are not admissible, unless instruments of crime, or have tendency to prove controverted fact. People vs. Arnold, 248 111. 169. DEMONSTRATIVE EVIDENCE 417 If the manner in which plaintiflf was injured, or the nature or character of tlie injury can better be explained by the production of physical objects, such evidence may be admitted. Tudor Iron Works, vs. Weber, 129 111. 535. Jury may take exhibits ui)on retirement. McCoy vs. People, 175 111. 224. Preliminary Proof: An article involved in a certain transaction must be identified. Quini-y G. & E. Co. vs. Bauiiian, 203 111. 295; Marzen vs. People, 173 111. 43; Painter vs. People. 147 111. 444; VonReeden vs. Evans, 52 App. 209; Yates vs. People, 38 111. 527; Chicago Trans. Co. vs. Korando, 129 A})p. 620. Admissibility Generally : — In General: Adniissil)le in chief. Henry vs. People, 198 111. 162; Painter vs. People, 147 111. 444; Tudor Iron Works vs. Weber, 129 111. 535. — Ancillary: Physician testifying as to injury to plaintiff's ankle may use skeleton of human foot in explaining anatomy of the foot to the jury. C. & A. R. R. Co. vs. Walker, 217 111. 605. Model of locomotive engine admissible. I. C. R, R. Co. vs. Bereus, 208 111. 20. IModel of coal hoist. Penn. Co. vs. Kelly, 156 111. 9. — Particular Instances: Revolver and bullet in prosecution for homicide. McCoy vs. People, 175 111. 224. And in civil action for negligent killing. Foster vs. Shepard, 164 App. 199. Torn clothing worn by party at time of inquiry. Quincy G. & E. Co. vs. Bauman, 203 111. 395; Tudor Iron Works vs. Weber, 129 111. 535; Trans. Co. vs. Korando, 129 App. 620. Clothing showing blood stains. People vs. Morris, 254 111. 559; Painter vs. People, 147 111. 444. Or burned by powder. Henry vs. People, 198 111. 168. Bed in room where person was murdered, and mattress, sheets and other bed clothing pertaining thereto. Painter vs. People, 147 111. 444. Buggy in which deceased was shot, — to enable witness to explain position of deceased, position of accused, range of shot which passed through deceased and lodged in back cushion. Henry vs. People, 19^8 111. 162. Buggy alleged to have been stolen and appearance altered. Miller vs. People, 229 111. 376. Vial and poison. Siebert vs. People, 143 111. 571. Burglar's tools found upon accused. (Trial for burglary.) Williams vs. People, 196 111. 173. Roll of paper sulistituted for money, on trial for larceny. Keating vs. People, 160 111. 480. Part of chair with which assault was made. VonReeden vs. Evans, 52 App. 229. Eye and piece of skull which had been removed. Seltzer vs. Saxton, 71 App. 229. Farm gate. Goodrich vs. C. G. & W. Ry. Co., 148 App. 579. EV.— 27 418 ; DEMURRER TO EVIDENCE^ Bombs. .[? •■(-, Spies vs. People, 122 111. 1, Plaster casts worn after injury. Village of Gardner vs. Paulsen, 117 App, 17. Imitation diamond rings substituted for real diamond ring alleged to have l)een stolen. Gindrat vs. People, 138 III. 103. : Brass couplings for purpose of identification and proving kind of property stolen. Jupitz vs. People, 34 111. 516. Door with hook or screw for purpose of illustrating whether person could commit suicide by hanging. Juniperts vs. People, 21 111. 375. Can of yeast similar to that shipped, in action against carrier for loss by breaking or puncturing can. Amer. Express Co. vs. Spillman, 90 111. 455. Improper to introduce child in bastardy case to show resemblance between it and defendant. Eobnett vs. People. 16 App. 299 ; Morrison vs. People, 52 App. 482. Profert of person not admissible on question of age. People vs. Davidson, 240 111. 191; Wistrand vs. People, 213 111. 72; Porter vs. People, 158 111. 370. Except in civil cases. Houston vs. Quinn, 168 App. 593. Objections: It is no objection to demonstrative evidence that its use is cal- culated to excite sympathy. or passions or prejudice the jury. Seltzer \s. Saxton, 7l'App. 229; YonEeeden vs. Evans, 52 App." 209. DEMURRER TO EVIDENCE See Directing Verdict. Must Be in Writing: A dcnuirrer to the evidence must be in writing and set out par- ticularly the facts which the evidence fairly tends to prove, and not the evidence which tends to prove the facts, and admitting the facts leaves the court nothing to do but apply the law to them. Eockhill vs. Congress Hotel Co., 237 111. 98; Landt vs. McCollough, 218 111. 607; Crowe vs. People, 92 111. 231; Creach vs. Taylor, 3 111. 277. Wliat It Admits: Admits not only all the plaintiff's testimony has proved, but all that it tends to prove. Pent vs. T. P. & W. Ey. Co., 59 111. 349; Heidrick vs. Heidrick, 18 App. 142. But does not admit forced and violent conclusions, but the tes- timony must be taken most strongly against him. Pliillips vs. Dickersou, 85 111. 11. Joinder : In order to authorize the court to take a case from the jury by demurrer to the evidence, all the facts which the evidence tends to prove must be admitted by the demurrer specifically. It will not do to demur to the evidence generally, and then submit the same to the court to sift out and see what facts the evidence tends DENIAL OF EXECUTIOxN 419 to prove. AMiere the e'vidence is nneortnin, it is for tlio court to tleterinine tlie sufficiency of the demurrer, as to whether or not it admits all the facts which the evidence tends to prove, and if in the judgmejit of the court it does so, the plaintiff will be required to join in the demurrer, which, if he refuses to do, judf^ment will go for defendant. When demurrer is joined, the admission of facts therein contained operates as a special verdict of the jury, upon which the court gives judgment according to the law of the CclSG I. & St. L. K. K. Co. vs. Liuk, 10 App. 29'2'. ' DENIAL OF EXECUTION C See Corporations, Seals. Issues Raised: — 1)1 General: The plea of )ion est factum, verified, without any other plea, admits all allegations of declaration except execu- tion of instrument. Eudesill vs. Jefferson Co., 85 111. 4-1(3; Strong vs. Hastcrlik, 146 App. 346; Landt vs. MeCnllough, 130 App. 515; Oberne vs. Gaylord, 13 App. 30; Sugden vs. Beasley, 9 App. 71. In chancery, verified denial of execution raises no other defense. Proof that president and secretary of a corporation actually exe- cuted bonds establishes a prima facie case, notwithstanding denial. MeCormick vs. Unity Co., 239 111. 307. — Guarautij of Promissorij Note: AVhere execution of guar- anty is denied by plea properly verified, burden of proof is upon plaintiff, not only to establish the signature appearing on back of note, as that of defendant, but that the guaranty was on note before he indorsed it, or he authorized it to be placed thereon. Hinsey vs. Studebaker l\Ifg. Co., 73 App. 278. — Covenant on Lease: In action on a lease, a plea of non est factum only puts in issue the execution of th.e lease, and does not deny the alleged breach or set up any other matter in defense. Goldstein vs. Eeynolds, 190 111. 124. ,.. r ^ — Delivery: Plea of non est factum puts in issue signing aiid delivery of instrument. Cully vs. People, 73 App. 501 ; Hunt vs. Wier, 29 111. 83. — Authority of Agent: And if executed bv agent, his authority. City of Chicago vs. English, ISO 111. 476; Chi. Eleo. Co. vs. Hutchin- son, 25 App. 476. Where an instrument is executed by an agent, the plea of non est factum puts in issue the authority of the agent to do the act, and if a municipal corporation can only execute an instrument in a certain form, it puts in issue whether it was executed in such legal form ; but if the proof shows the execution of the instrument by the parties, the power to make it cannot be questioned under the plea, and any defense which would make it void or voidable must be specially pleaded. " City of Chicago vs. English, 180 111. 476. — Where Instrument Not Set Out: Where declaration in assumpsit contains general common counts and one count on spe- 420 DExNIAL OP EXECUTION cial promise to pay money, but no document' is set out or described in either count, proof of execution of documents, not promissory note, introduced in evidence by plaintiff, is not dispensed with though defendant does not deny such execution on oath. Smcntek vs. Cornhauser, 17 App. 266. — Foreclosure: Proof of execution of note is not necessary on foreclosure, in absence of sworn answer denying execution. Dean vs. Ford, 180 111. 309. Where defendant neither denied under oath upon witness stand or in any answer or pleading the execution of an extension agree- ment or of the two notes made in pursuance thereof, it is not necessary to prove their execution on a foreclosure. Bourke vs. Hefter, 104 App. 126. The Affidavit: i — Who Should Make: The affidavit required, in order to put plaintiff upon proof of the execution of a written instrument, must be made by defendant charged with the execution of same, and cannot be made by his agent. The proviso permitting a denial of execution of a written instru- ment on information and belief, where the party making the denial is not the one charged with the execution of the instrument, does not authorize an affidavit by a stranger to the record. Warman vs. Bank, 185 111. 60; Davis vs. Searritt, 17 111. 202. A person alleged to have executed an instrument relied upon as a defense is the proper person to deny an execution by affidavit. Hartje vs. Keeles, 133 App. 461. Affidavit of one defendant denying execution of instrument sued on makes proof thereof necessary as to him but not as to other defendants. Davis vs. Searritt, 17 111. 202; Warman vs. Natl. Bank, 18.5 III. 60. — ^Vhen Filed: Court may permit, in its discretion, the filing of verified denial after plaintiff has closed his case. Cummings vs. Sobey, 164 App. 444. — As Evidence: The affidavit is not evidence, but merely puts plaintiff to proof, and cannot be considered. Hunter vs. Harris, 131 111. 482; Walter vs. School Trustees, 12 111. 63. Admissibility of Evidence: — In General: Execution of instrument can only be denied by plea of non est factum or non assumpsit verified. Bailey vs. Valley Natl. Bank, 127 111. 332; Gaddy vs. McCleave, 59 111. 182; Chi. Elec. E. Co. vs. Hutohins, 25 App. 476. Notice of denial, though verified, is insufficient. Bailey vs. Valley Natl. Bank, 127 111. 332. General issue not verified does not put in issue allegation in dec- laration that contract was made by defendant. Catholic Press Co. vs. Ball, 69 App. 591. Verified plea of general denial may be waived by stipulation. S. V. Bank vs. D. N. Bank, 58 App. 306. — Authority of Corporate Officers: A verified plea is essential to the right to deny authority of the president of a corporation to execute an instrument in name of corporation. Firemens Ins. Co. vs. Barnisoh, 161 111. 629; Eiehlieu Hotel Co. vs. Mil. Enc. Co., 140 111. 248; Kennedy vs. Supreme Lodge, 124 App. 55. DENIAL OF EXECUTION 421 — Alteration: Of note cannot lie proven without sworn plea denying execution. Eicharilson vs. Mather, 178 111. 449; Affg., 77 App. 62(5; Dewey vs. Warriner, 71 111. liKS. Evidence cannot be admitted to prove that a provision was fraudulently omitted from an order, in absence of verification. Aiiltinan vs. Henderson, 32 App. 331. — Personal Obligation: A defendant may, without tiling a sworn plea, deny that a note, the signing of which he admits, con- stitutes his personal obligation. Frankland vs. Johnson, 147 111. 520. In suit on contract by one as "agent," such execution must be proven, although not denied by sworn plea. Gray vs. Gilliam, 15 111. 454, — Policy of I)isuranc€: If execution is not denied on oath, is admissible in evidence without proof of execution. Firemens Ins. Co. vs. Baruseh, 161 111. 629; 111. Ins. Co. vs. Mar- seilles Mfg. Co., 6 111. 236. — Lease: Execution of lease cannot be denied in action for rent accruing thereunder where copy thereof is attached to declaration, unless general issue is verified. City of Chicago vs. Peck, 98 App. 434. In action on lease and assignment thereof, if defendant has filed no affidavit denying their execution, such instruments are admis- sible in evidence without proof of execution. Schufeldt vs. Henderson, 26 App. 593; Eeed vs. Phillips, 5 111. 40. — Bonds: Execution of appeal bond must be proven by plain- tiff suing thereon, when execution has been denied by veritied plea. Bonner vs. Ames, 82 App. 93. And such proof is not waived by failure to object to instrument sued on, when denied by verified plea. Carlson vs. Gilbert, 99 App. 575. The execution of a bond cannot be denied in absence of plea of non est factum verified. Oberreich vs. Foster, 152 App. 302; People vs. Ackerman, 146 App. 301. AYhen on action of debt on replevin bond, the bond is stated in legal effect in the declaration, it is not necessary to prove its execu- tion unless it has been denied by plea verified by affidavit. Homer vs. Boyden, 27 App. 573; Fleet vs. Hertz, 98 App. 564. Preponderance Sufficient : Upon a plea of non est factum verified by affidavit in court of record, the issue is to be found according to the preponderance of the evidence. If plaintiff fails to prove the execution of the instruments, or its adoption by defendant, by a preponderance of the evidence, defendant is entitled to verdict, though testimony fends to show a forgery. Wolverton vs. Sunmer, 53 App. 115. Proof required of execution of instrument, the execution of which has been denied by verified plea, is only such as will be suf- ficient, if uncontradicted, to satisfy reasonable minds of such exe- cution. Ingram vs. Eeeman, 81 App. 123, 422 DEPOSITIONS DEPOSITIONS Who May Take: — Notaru Public: Depositions in all cases may be taken before a notary public. ' T. W. & W. Ry. Co. vs. Baddeley, 54 111. 19. And when the notary named in the certificate certifies that "each of said depositions was so taken by me," there can be no presumption that any of the depositions were taken by any other than such notary. Behrensmeyer vs. Kreitz, 135 111. 591. — Disinterested Person: A commission to take depositions may issue to any disinterested person to take the deposition as commis- sioner, and such person may be designated by the name of the office which he holds as well as by his proper name. Brown vs. Lehrs, 79 111. 575. — Naming Commissioner: A commission to take depositions may specifically name any competent, disinterested person, or it may designate generally any judge, master in chancery, .justice of the peace, notary public, or it may designate a particular person, or any judge, master in chancery, notary public or justice of the peace, etc. In whatever form the commission runs, it can only be executed by the commissioner named in the commission or desig- nated therein. He must be a person expressly named in the com- mission, or he must be of a class expressly designated therein. He gets his power to act from the commission, and must be embraced in the language. Savings Ins. Co. vs. Cannon, 103 App. 534. A commission to take depositions may be directed to any disin- terested person, whether he holds an office or not, and in either case, he derives authority from the commission and no other authority need be shown. Temby vs. Brunt Pottery Co., 229 111. 540. Where a commission is directed to a person by name to take a deposition, he derives his authority from the appointment which carries with it all the powers necessary to execute the commission, including the power to administer oaths to witnesses and his official capacity is immaterial. A deposition taken by a foreign notary public is admissible without proof of foreign law authorizing a notary public to administer oaths, where the commission to take depositions is directed to him by name. Tompkins vs. Tompkins, 257 111. 557. General direction of commission to any judge, master in chan- cery, notary public or justice of the peace of the county in which witness resides is sufficient. Bracket vs. Nikirk, 20 App. 525. Upon death of magistrate, deposition may be taken beforje another Phelps vs. Young, 1 111. 327. Caption and Certificate: — Character of Officer Certifying: The proviso requiring that a deposition taken before a foreign officer shall be "accompanied" by a certificate of his official character, contemplates merely that the DEPOSITIONS 423 official cliaraeter of such officer shall be established before the deposition is read in evidence. Scott vs. Bassett, 186 111. 98; Bishop vs. Hilliard, 227 111. 382, — Form: The statute has fixed no form for either the caption or certificate to be attached to depositions. If they are taken and certified in substantial compliance with the requirements of the statute, they will not be suppressed on merely technical objections. The fact that depositions were typewritten does not show that they were not "reduced to writing," as required by the statute. And when the notary named in the notice certifies that "each of said depositions were so taken by me," etc., there can be no pre- sumption that any of the depositions were taken by another than such notary. Behrensmeyer vs. Kreitz, 135 111. 591. — Waiver of Issuance of Commission: A party who receives notice that depositions will be taken in the case, and who appears at the times and places designated and cross examines witnesses without objection that a commission has issued, waives the issu- ance of such commission. Bishop vs. Hilliard, 227 111. 382. — Time of Taking: Although the certificate of the magistrate before whom a deposition is taken does not state at what hour the deposition was taken, yet if he appends the notice under which it was taken, and in the caption of the deposition states that such deposition was taken on the day fixed in the notice, "by virtue of the annexed notice," and in his certificate states that "it was taken at the time and place mentioned in the caption," this will be a sufficient statement of the hour to entitle the deposition to be read in evidence. I. C. E. E. Co. vs. Cowles, 32 111. 116. Certificate need not state time and place of taking. Phelps vs. Young, 1 111. 327. — Swearing Witness: It is not ground for sustaining objection to deposition that certificate of officer failed to state witness was sworn. County of Greene vs. Bledsoe, 12 111. 267. — Certificate of Identity: Where a commission is issued to a person by the name of the office which he holds, the certificate of the person taking the deposition, that he took it in pursuance of the commission, is evidence of his identity. Brown vs. Leuhrs, 79 111. 575. — Necessity for Notarial Seal: Where a commission to take depositions is directed to a certain person by name, the fact that he is also described as a notary public does not render it neces- sary that his certificate to the depositions shall be under his nota- rial seal, or that there be a certificate of his official character as notary public. Temby vs. Brunt Pottery Co., 229 111. 540. A commissioner need not certify anything as to his commission. And a mistake thereon as to his name is immaterial where caption properlv names party. ' Kendall vs. Limburg, 69 111. 355. — Accompanying Deposition: The certificate of the official 424 DEPOSITIONS character need not accompany depositions where dedimus proves officer's authority to take. Certiiicate may be attached at any time before the deposition is read in evidence, and it need not cer- tify that the notary, before whom the deposition was taken, was authorized, by the "laws of the state where he resides, to adminis- ter oaths. North Amer. Ace. Ins. Co. vs. Williamson, 118 App. 670. Indorsements : Sufficient if indorsement indicates in what case proceeding to take depositions was had. I. & I. S. Ey. Co. vs. Wilson, 77 App. 603. Requirement that names of litigants shall be indorsed on depo- sitions is complied with by indorsing name of firm. Forsythe vs. Baxter, 3 111. 9. Requirement is directory ; not ground for suppression where no injury is shown. Cole vs. Choteau, 18 111. 439. Notice : — Necessity for: The party who gives notice that he will sue out a dedimus' io take the testimony of a witness upon written interrogatories, after receiving notice that the party to whom the notice was given has elected to take the deposition upon oral inter- rogatories, should reply with notice of the time and place where such depositions will be taken upon oral interrogatories in accord- ance with the statute ; he is the party desiring the testimony and should give notice of time and place for taking same. Lewis vs. Fish, 40 App. 372. — Names of Witnesses: Notice need not state names of all wit- nesses called, and need not state witness is necessary. Dryer Co. vs. Foundry Co., 60 App. 390. — Residence of Witness: Nor need it state the residence of the witness. Hays vs. Borders, 6 111. 46. — Objection: An objection that on notice of taking deposition of witness named, "and other witnesses," testimony of such other witnesses should not have been read to the jury, comes too late when the case has come to trial. It should have been taken by direct application to the court before the case was called for trial and submitted to jury. P. C. C. & St. L. Ey. Co. vs. Story, 104 App. 132. Objection to the insufficiency of the notice upon which the tak- ing of depositions was predicated must be made before trial. Koedt vs. Josephsen, 158 App. 388. — Waiver: An appearance and cross examination of witnesses is a waiver of objection to the sufficiency of the notice. County of Greene vs. Bledsoe, 12 111. 267. An agreement between parties to suit that depositions previ- ously taken shall be evidence upon trial, amounts to a waiver of failure to give notice of time and place of taking same. Wilkinson vs. Ward, 42 App. 541. — Filing Interrucjatories: In absence of showing as to time when interrogatories to be propounded to witness upon taking DEPOSITIONS 425 deposition were actually filed, presumption is they were filed before date fixed for issuance of dcditn us. Haish vs. Dreyfus, 111 App. 44. — What Insuffici( )i{ : An affidavit that notice and copy of interrogatories was given to adverse party ten days before speci- fied day is insufficient. Court cannot know that notice was given ten days before suing out of the dcdimus. Corgan vs. Anderson, 30 111. 95. — What Siifflcioil : The notice that plaintiffs ''will, on such a day, etc., at the office of Samuel jMcCrery, in the town of, etc., take depositions," and same to be taken before Sanuiel McCrery as justice of the peace, is sufficient and entitles them to admission. Patterson vs. Hubbard, 30 111. 201. Where a party taking a deposition sent notice by mail to the attorney of the adverse party, at place where he kept his office, and it was returned with admission of service, and acted upon under belief that it was signed by the authority of the attorney who was, in fact, absent, and it appeared the admission was signed by the attorney's son and law partner; such fact, coupled with the late motion to suppress the deposition, was a sufficient reason for overruling the motion. Brown vs. Clement, 68 111. 192. :,f — Claim Against Estate: In taking a deposition in support of a claim filed against an estate, it is not necessary to notify every person who has an ultimate interest in the distribution of the property. It is sufficient to notify the executor and any other per- son who may have appeared to resist the claim. The executor as to the personal estate represents all parties in interest, unless such other parties in interest have personally appeared. One who, on his own application, is allowed to appear after depositions have been taken, is bound by the depositions already taken, although he is entitled to further cross examination of wit- nesses whose depositions have already been taken, if he applies for that permission. Deuterman vs. Euppell, 103 App. 106. — Joint Debtors: Both defendants to suit on joint contract are entitled to notice; if one, only, is notified, deposition can be used onlv as against him. McConnell vs. Stettimus, 7 HI. 708. Affidavit : The consent of the parties at law to taking depositions of resi- dent witnesses dispenses with the necessity of filing the affidavit required by the statute. Pikard vs. Bates, 38 111. 40. Adjournments: A commissioner appointed to take depositions has, within rea- sonable limits, and for reasonable causes, power to adjourn the taking of the depositions. Bueb vs. Dressier, 104 App. 409. Notation of adjournments had during taking of depositions does not, of itself, warrant suppression in absence of injury. I. & I. S. Ey. Co. vs. Wilson, 77 App. 603. 426 DEPOSITIONS Opening : Opening a deposition by thoughtless act of - ening to kill is sustained by proof that the language and conduct of the accused caused his victim to believe his life would be taken unless he paid the money, and it is not necessary to prove that accused was armed, or that he used the word "kill" in his threats. Glover vs. People, 204 111. 170. By Officer — Taking- Illegal Fees: Authority to charge fees nnist be averred and proven. Feriiel vs. People, 16 App. 310. The officer must have the process or summons, or whatever legal writ it is, and must charge, claim, take or demand a greater fee than is allowed by law. Ferkel vs. People, 16 App. 310. It must be proven that the fee was paid unwillingly, for no mat- ter how improper or unjust it may be for an officer to take greater or other fees than he is allowed by law, if voluntarily given it is not extortion. People vs. Eainey, 89 111. 34. Where it was proven that the money was paid for the purpose of disposing of a suit then claimed to be pending, but which, in fact, was not pending, it was held not sufficient to convict officer of offense under statute. Ferkel vs. People, 16 App. 310. EXTRADITION Illegal Arrest: — Foreign Country: A fugitive from justice has no asylum in a foreign country when he is guilty of an offense for Avhich he is liable or subject to extradition, by treaty between this and the 536 FABRICATION OF EVIDENCE foreign government. If he is illegally and forcibly removed from such foreign country, that country alone has cause of complaint and he cannot complain for it. The rule at common law is that the court trying a party for crime committed within ils jurisdiction will not investigate the manner of his capture in a foreign state or country, though his capture and return may have plainly been without authority of law. Ker vs. People, 110 111. 627. ' "*-'^'^~ — Sister State: Where legal steps have been taken for the apprehension and return to this country of a fugitive from jus- tice, and he is brought to the United States, where he is arrested on a requisition of the executive of this state and brought here for trial, the fact that he may have been illegally arrested in such foreign country and brought to a sister state does not affect the jurisdiction of the court of this state to try him, the state not being a party to such illegal arrest and abduction, and no inquiry into regularity of his arrest and surrender in such state may be made. Ker vs. People, 110 lU. 627. FABRICATION OF EVIDENCE See Destruction and Suppression of Evidence. FALSE IMPRISONMENT See Malicious Prosecution, Malice, Intent. Arrests by Private Persons : — In General: A person not an officer, armed with process, who arrests and detains another against his will, when no crim- inal offense has been committed or attempted in his presence, is -guilty of false imprisonment. Hight vs. Naylor, 86 App. 508; Smith vs. Donnelly, 66 111. 464. In order to constitute a false imprisonment, it is not necessary that defendants use violence, or lay hands on plaiiitiff or con- fine him in any jail or prison, but it will suffice if defendants at any place or time, in any manner, restrain plaintiff of his lib- erty, or detain him in any manner from going where he wishes, or prevent him from doing what he desires. Hawk vs. Eidgley, 33 111. 473; Greathouse vs. Summerfield, 25 App. 206. — Justification: It must be first shown that a felony has actu- ally been committed and that there were reasonable grounds to believe that the person arrested was the felon. Wliere no crime was committed, information of defendant, to show good faith, is not admissible in bar of action. Eyan vs. Donnelly, 71 111. 100; Pinkerton vs. Martin, 82 App. 589. FALSE IMPRISONMENT 537 A person cannot justify an arrest upon the suspicion of ^ilt only, guilt must be shown. If established, guilt is justification. Enright vs. Gibson. 219 111. 550; Dodds vs. Board, 43 111. 95; Kiu- dred vs. Stitt, 51 111. 401; Siegel vs. Conuor, 70 App. IIG. Where an officer, who is present at commission of an offense, is not able to make an arrest, and calls in other officers on the posse, or on the hue and cry, those who aid have a justification as broad as his own. Main vs. MeCarty, 15 111. 442. Want of reasonable or probable cause is not an essential ele- ment of false imprisonment. Enright vs. Gibson, 219 111. 550; Hight vs. Naylor, 86 App. 508; Sundmacher vs. Blooh, 39 App. 553. Admissibility of Evidence: — I'll a of General Issue: Not only puts in issue the fact of the imprisonment alleged, but also the participation of the defend- ants therein. Feld vs. Loftus, 140 App. 530. Matters in discharge or justification must be specially pleaded. Blancbard vs. Burbaiik, 16 App. 375. — Intent and Malice: The intent or object of the prosecutor in causing the arrest may be proven for the purpose of showing malice, but not for purpose of showing want of probable cause. Malice may be inferred from want of probable cause, but want of probable cause is never inferred from malice. Bay vs. Goings, 6 App. 140. Where circumstances of arrest indicate a wanton disregard of rights of person arrested, there need be no evidence of hatred or ill-will in order to authorize the submission of the question of exemplary damages to the, jury. Pearce vs. Needliain, 37 App. 90; Hight vs. Naylor, 86 App. 508. Evidence of absence of evil intent and presence of reasonable care and prudence only prevent punitory, not actual, damages. Little vs. Munson, 54 App. 437; Hawk vs. Eidgeway, 33 111. 473. Matters tending to show bad motive are admissible. Davis vs. Wilson, 65 111. 525. A defendant in action of trespass vi et armis VL\a.j show that he was persuaded by others to make an affidavit upon which an illegal arrest was made, to show the animus with which he acted, and to avoid vindictive damages. Evidence may be admissible for such a purpose, when it does not tend to establish a bar to the action ; and plaintiff' may, when it is admitted, have the jury so instructed that it shall be limited to its legitimate purpose. Eoth vs. Smith, 41 111. 314. Facts and circumstances which led to the procuring of the arrest, showing misconduct and fraud on part of plaintiff, are admissible in evidence on part of defendant, not in bar of the action, but as proper to be considered by the jury in mitigation of vindictive or exemplary damages. Johnson vs. Von Kettler, 66 111. 63. — Manner of Treatment: In trespass for false imprisonment, under color of process, it is error to admit in evidence tlie con- dition of the jail in which plaintiff was confined, to aggi-avate the 538 FALSE IMPRISONMENT damages, where there is no allegation of special damages in the declaration. JohTison vs. Von Kettler, 84 111. 315. Or kind of food furnished or character of prison. Miles vs. Weston, 60 111. 361, May detail mode of detention. Pinkerton vs. Snyder, 87 App. 76; Pearce vs. Needham, 37 App. 90. — To Show Responsible Parties: The fact that the employees of a mercantile estal^lishraent act in behalf of their employer, and in the line of their employment, and arrest a person in front of the establishment, charge her with theft and take her inside, where a search is directed and carried on by persons employed therein, may be shown and makes a prima facie case of false imprisonment against the proprietor. Vrchotka vs. Eothsehild, 100 App. 268; Feild vs. Kane, 99 App. 1; Seigel vs. Connor, 70 App. 116. A proprietor of a detective agency ordering an illegal arrest, and confinement in his own otfice, by his employees, may be shown to be responsible. Pinkerton vs. Martin, 82 App. 589. Arrests by Officers: — Distinguished from Malicious Prosecution: False imprison- ment is a trespass committed by an unlawful arrest and imprison- ment. If the imprisonment is under legal process, but the action has been begun and carried on maliciously and without probable cause, it is malicious prosecution. Mexican Cent. Ey. Oo. vs. Gehr, 66 App. 173. It is false imprisonment where a person is improperly arrested without warrant, and as far as the action of false imprisonment is concerned, it makes no difference whether the person is subse- quently prosecuted or not ; the action is complete when the deten- tion results from the improper arrest. Conkling vs. Whitmore, 132 App. 574. Where an officer has not seen the crime committed, for which he makes the arrest, without a warrant, such arrest is illegal, if the crime was not actually committed, notwithstanding he may have reasonable and probable cause for believing it had been com- mitted bv the person so arrested. Wood vs. Oleson, 117 App. 128. — Burden of Proof and Presumptions: In actions for false imprisonment and malicious prosecution, where an arrest and im- prisonment are shown, it devolves upon defendant to show justi- fication. Mexican Cent. Ey. Co. vs. Gehr, 66 App. 173. As a general proposition of law, it is only necessary for plain- tiff, in actions of false imprisonment, to show that he had been restrained of his liberty. The presumption then arises that his restraint was unlawful, and the burden of proving a justification, if any exist, is upon defendant. But when the plaintiff goes further than this and shows that such imprisonment was caused by a complaint, and a trial and examination under it, the burden of proof is upon plaintiff to show the proceedings v/ere invalid or irregular, the presumption of law being in favor of the regu- FALSE IMPRISONMENT 539 larity of judicial proceedings even iu courts of limited jurisdic- tion. Hermanson vs. Goodyear, 139 App. 374. Where a policeman arrests without a warrant, under a city ordinance, it is incumbent upon him, when sued in trespass there- for, to show that the offense ^^■as in fact committed in his pres- ence. The burden of proof will be upon him to establish that fact by satisfactory evidence, to exonerate himself from lial)ility. Shanley vs. Wells, 71 111. 78; Maikey vs. Griffin, 109 App. 212. Admissibility of Evidence: — Legality of Apijointntcnt of Officer: Defendant an officer suf- ficiently shown, where it, appears he is an officer de jure; the legal- ity of his appointment cannot be inquired into. Marsh vs. Smith, 49 111. 396; Field vs. Loftus, 140 App. 530; Schlen- ker vs. Eisley, 4 111. 483. — Of Warrant: Warrant admissible to justify, where it shows on its face that court had jurisdiction of subject matter. Eessler vs. Peats, 86 111. 275; Johnson vs. Von Kettler, 66 111. 63; Slomer vs. People, 25 111. 58; Morrell vs. Martin, 17 App. 336; Davis vs. Wilson, 65 111. 525. And he need not show the sufficiency of the affidavit upon which same was issued. Eessler vs. Peats, 86 111. 275. But if there is want of jurisdiction, writ is no defense. Johnson vs. Von Kettler, 66 111. 63. And writ must be regularly returned by officer. Slomer vs. People, 25 111. 58. Being part of the res gestae, is evidence of the facts therein stated. Haskins vs. Haskins, 67 111. 446. — Justice's Docket: Where one justifies under a warrant, the affidavit on which the warrant issued, the warrant and the tran- script of the justice's docket, showing trial and conviction for the offense charged, are competent and material. Gay vs. DeWerff, 17 App. 417. And it makes no difference that the affidavit was defective, the justice having jurisdiction. Bassett vs. Brattor, 86 111. 159. Parol is competent to prove fact of execution of writing and fact of affidavit being made on which warrant was issued. And it may be so shown when lost, and its contents may be proven by parol. '■■articular acts of negligence. C. C. C. & St. L. Ry. Co. vs. Hornsby, 202 HI. 138 ; C. & A. Ry. Co. vs. Glenny, 175 111. 238; Louisville Ry. Co. vs. Spencer, 149 111. 97; Wabash Ry. Co. vs. Smith, 42 App. 527; C. C. C. & St. L. Ey. Co. vs. Tate, 104 App. 615; T. St. L. & W. Ry. Co. vs. Needham, 105 111. 25 ; T. St. L. & W. Ry. Co. vs. Valodin, 109 App. 132 ; XIV 111. Notes 291, § 919. Proof that damages have been caused by fire from a locomotive on a railroad, raises a prima facie inference of negligence on the part of the railroad company. Adkins vs. I. S. Ry. Co., 165 App. 300. FIRES 545 A prima facie case is established by showing that sparks from a locomotive set the fire. St. L. & T. H. Ky. Co. vs. Strotz, 47 App. 342. Proof that fire was communicated by passing locomotive of de- fendant is prima facie sufficiimt to charge defendant. Calloway vs. Sturgeon, 58 App. 159. Burden of Proof: — Want of Negligence: liurden is upon company to establish such facts as will excuse it from consequences of fire communi- cated by its locomotives. C. C. C. & St. L. Ey. Co. vs. Stephens, 173 111. 430; Amer. S. B. Co. vs. C. & A. Ey. Co., 177 111. 513; C. & A. Ey. Co. vs. Amer. S. B. Co., 190 111. 2(38; XIV 111. Notes 291, § 919. — Proper Eejidpment: If it is proven that the fire which destroyed plaintiff's property was set by sparks from defendant's locomotive, burden is upon defendant to show its locomotive had the best and most approved spark arrester, was in good repair and handled bv competent engineer. C."C. C. & St. L. Ey. Co. vs. Hornsby, 202 111. 138; B. & O. S. W. Ey. Co. vs. Tripp. 175 111. 251; First Natl. Bank vs. L. E. & W. Ey. Co., 174 111. 30. But if there is evidence fairly tending to show the fire which destroyed plaintiff's building was caused by sparks which escaped from defendant's locomotive, the fact the uncontradicted evidence shows the locomotive was equipped with the best appliances for preventing escape of sparks, and was in charge of an experienced and careful engineer, who carefully handled and operated same at the time, does not justify the court in directing a verdict for defendant. I. C. E. E. Co. vs. Bailey, 222 111. 480. Admissibility of Evidence: — Circu))is(a}itiaJ Evidence: As to smoke arising along the line of a railroad sometime after passage of a train, is competent in action alleging loss by fire through negligence of the company. L. E. & W. Ey. Co! vs. Helmeiich, 29 App. 270. It is admissible to show distance to which cinders were thrown from the track. L. E. & W. Ey. Co. vs. Kirts, 29 App. 175; I. C. E. E. Co. vs. Mc- Clelland, 42 'ill. 355. And to show that on day of fire in question, other fires were set by same locomotive. L. E. & W. Ey. Co. vs. Middleeoff, 150 111. 27 ; L. E. & W. Ey. Co. vs. Kirts, 29 App. 175. PlaintiflP is not confined to proof of precise place where fire is alleged to have been set. I. C. E. E. Co. vs. McClelland, 42 111. 355. It is not necessary to prove by direct evidence that the fire was communicated from the engine to the building. C. & A. Ey. Co. vs. Esten, 178 111. 192. The fact that fire was communicated by defendant's engine may be established by proof of circumstances giving rise to inference of the fact, provided such circumstances constitute a preponder- ance of the evidence. I. C. E. E. Co. vs. Bailey, 222 111. 480. Ev— 35 546 FIRES Where plaintiff's farm laid north of track and fire was dis- covered after passing of passengei- and freight train, which were about a mile apart, on day of strong south wind, and after the fire, a small cinder was found at place the fire appeared to have started, such facts were held to warrant a finding that the fire was communicated by one of the engines. L. E. & W. e/e. Co. vs. Eriekson, 80 App. G25. Where the evidence shows the fire to have started on defend- ant's right of way, from which it spread to plaintiff's farm, it is sufficient to sustain verdict for plaintiff. L. E. & W. E. E. Co. vs. Murray, 86 App. 461. To prove that an elevator adjoining the railroad caught fire from a passing locomotive, it was shown that two freights passed a few minutes before the fire, one of the locomotives emitting sparks, and that there was a high wind which would carry sparks from the track to the elevator. The elevator was locked and had no fire in it and there was no way for fire to originate within it. The fire caught in the ' ' dog house ' ' on top of the elevator, appar- ently from the outside. The only other source from which the fire might have slarted was a house across the street, but this was not shown to have had a fire in it. Held, that peremptory instruction was properly refused. C. & A. Ey. Go. vs. Esten, 178 lU. 192; S. C, 78 App. 326. There is evidence upon which a verdict may be sustained in action for burning of an elevator, where it is shown that the building had had no fire in it for a month, and was locked at the time of Imrning, that the weather had long been hot and dry, that the right of way was covered with dry grass, etc., that an engine passed within a few feet, throwing a quantity of sparks only an hour or so before the fire broke out. T. St. L. & K. C. E. E. Co. vs. Oswald, 41 App. 590. — Siinilar Facts: Where the engine alleged to have caused the fire is not satisfactorily identified, it is competent for plaintiff to sustain or strengthen the inference that the fire originated from the engine claimed by proving that the locomotives of defendant generally, or many of them, at or about the time in question, threw sparks or kindled fires upon the portion of its road in ques- tion. Lake St. El. Ey. Co. vs. Peterson, 93 App. 118, Where particular locomotive alleged to have caused the fire is identified, evidence of other fires set by different locomotives of the company, before and after the fire complained of is inadmis- sible. Where particular locomotive alleged to have caused the fire is identified, the fact that defendant's witness, in testifying that such locomotive was provided with a spark arrester, stated that all of the company's locomotives were likewise equipped, does not render competent, as rebuttal evidence, proof of other fires set by different locomotives of defendant. F. N. Bank vs. L. E. & W. E. E. Co., 174 111. 36. Evidence that same engine as caused the fire, less than ten days after the fire in question, was seen going up the same grade FIRES 547 near the location of the fire, ''throwing cinders from its smoke- stack," is admissible without proof that the engine was in the same contlition it was at the time of the fire, but defendant has right to disprove that fact or to show that the engine had since gotten out of repair. B. & O. S. W. R. E. Co. vs. Tripp, 175 111. 251. — Ordinances: An ordinance limiting the speed of passenger trains within the city to ten miles an hour is properly admissible in action for injury in city, caused by escape of fire fi'om locomo- tive, where one count sets out such ordinance, and that by rea- son of the excessive rate of speed the sparks were thrown from the engine and set fire to plaintiff's property, especially where there is evidence tending to show that a high rate of speed is more likely to result in the emission of sparks or coals from the engine. L. E. & W. R. E. Co. vs. Middleeoff, 150 111. 27. Weight and Sufficiency of Evidence: Negligence is rebutted by proof that the engine was furnished with appliances as good as any known, and inspected three days before and two or three days after the fire, and found on both occasions to be in first rate condition throughout, and was handled in a manner which, upon testimony of the driver, competent ex- perts approved. Natl. Bank vs. L. E. & W. E. E. Co., 174 111. 36. But it is not necessarily overcome by evidence tending to show the engine was equipped with an approved spark arrester, and was in good repair and operated by a competent engineer, where the engineer testifies the engine, if properly equipped, would not set fire as fire was set. Calloway vs. Sturgeon, 58 App. 159. If a prima facie case is rebutted by proof that a spark arrester was used, it is evident that this was out of order where sparks set fire to grass seventy feet away. Louisville Ry. Co. vs. Spencer, 47 App. 503. Nor is it conclusive of due care on part of company that the engine was furnished with approved appliances, that it was duly examined and appeared to be in good condition, there being proof, also, that the fire was set with sparks tlirown to a distance to which competent witnesses say they should not have been thrown if engine was properlv ecjuipped and handled. L. E. & St. L. R. Co. vs. Black, 54 App. 82. A prima facie case made is not rebutted hy proof th^it the engine was equipped with the best appliances for arresting sparks. Chi. & Erie R. R. Co. vs. Nielson, 118 Ajip. 343. It must appear that the engine was not only furnished with the best appliances, but that it was properly managed. C. & A. E. E. Co. vs. Clampitt, 63 111. 95,- St. L. V. & T. H. R. E. Co. vs. Funk, 85 111. 460. It is not enough to show the engine, as originally constructed, was properly equipped. It must also show same was in good repair. C. &" A. E. E. Co. vs. Qnaintance, 58 111. 389. And on direct examination, a witness who testified that he knew from the uniform course of business what appliances were in good order, cannot be asked, "What was the uniform course of busi- 548 FIRES ness in the shop?" Question might be properly asked on cross examination. G. W. R. R. Co. vs. Haworth, 39 111, 347. Upon the question whether a spark arrester was in repair, it is admissible to prove by the master mechanic that the engine was not reported by the inspector as it should have been had it been out of repair; though of little probative force, is admissible. The inference of negligence is rebutted l)y proof that the engine, spark arrester, etc., were in good order and that the engineer was com- petent. I. B. & W. R. R. Co. vs. Craig, 14 App. 407. Evidence that an unused, closed and locked elevator adjoining a side-track, was seen to be on fire in its cupola just after an engine had passed emitting sparks, tends to show the fire was communicated by tht engine, where there had been no fire in the elevator, the wind was blowing from the engine towards the building, and defendant advances no other reasonable theory as to the origin of the fire. C. & A. R. R. Co. vs. Esten, 178 111. 192. Equipment of locomotive with approved spark arrestors, their good repair and skillful handling of locomotive, are not material where proximate cause of fire is presence of dry grass and combus- tible material on right of way of railway company. B. & O. S. W. R. R. Co. vs. Penyman, 95 App. 202. Evidence as to subsequent emission of cinders by engine al- leged to have caused fire is competent without regard to proof of its condition at such subsequent time. B. & O. R. R. Co. vs. Tripp, 175 111. 251. Evidence of other fires communicated by different locomotives is inadmissible where particular engine has been identified. First Natl. Bank vs. L. E. & W. R. R. Co., 174 111. 36. Fire communicated by passing locomotive engine is prima facie evidence of negligence to charge railroad company. C. & A. Ry. Co. vs. Glenny, 70 App. 511. Instruction is erroneous which casts burden of proving defend- ant's negligence upon plaintiff. Amer. Strawboard Co. vs. Ry. Co., 177 111. 523. Proof of existence of dead grass, dry weeds or other danger- ous combustible material is not essential to establishment of lia- bility. B. & O. S. W. Ry. Co. vs. Hawkins, 84 App. 40. Ownership : Ownership of land upon which straw owned by the plaintiff is burned, is immaterial. Amer. S. B. Co. vs. C. & A. R. R. Co., 177 111. 517. Ownership of land is sufficiently proven in action where the damages to real property are claimed, by long and continued pos- session ' B. &■ O. S. W. Ry. Co. vs. Higgins, 69 App. 412. And proof of undivided one-half interest in land is sufficient. B. & O. S. W. Ry. Co. vs. Higgins, 69 App. 412. Elements and Measure of Damages: The measure of damages for meadow and grass land destroyed is the difference in the land before and after the fire, and that of FIXTURES 549 hay and straw is the fair cash value ot it when destroyed as shown by the proofs. B. & O. S. W. Ey. Co. vs. Irwin. 97 App. .137. Where the lire is set by a railroad, and orchard and meadow are destroyed, the damage is tlie depreciation in the value of the realty caused by the tire. I. C. E. E. Co. vs. Almon, 100 App. 530. In action for destruction of crop by fire, defendant cannot raise the question of title in tenant where tenant has testified and made no claim thereto. T. St. L. & W. Ey. Co. vs. Farris, 117 App. 108. Where plaintiff declares for damage to land, he may testify as to yield of grass in the following year on part burned over as compared with the other part. L. E. & W, Ey. Co. vs. Holderman, 56 App. 144. Evidence that meadow lands would produce more profitable crops of corn than hay is incompetent in action for injury to hay by fire. S. St. L. & K. C. Ey. Co. vs. Kingman, 49 App. 43. Value of property destroyed may be shown by expert testi- mony and may be shown by evidence based upon hypothetical question. C. & A. Ey. Co. vs. Glenny. 175 Til. 23R. Measure of damages applying where fire is to real estate is dif- ference between value of land before and after fire complained of. C. & A. E. E. Co. vs. Davis, 74 App. 595. W^here straw in stack is destroyed by fire from a locomotive, the measure of damages is the market value of like straw at the nearest market, plus the cost of getting it from the market to the place where the other straw is destroved. C. G. W. Ey. Co. vs. Gitcliell, 95 App. 1. The measure of damages in case of fire on farms is the difference between the value of farm before the fire, and its value after the fire. B, & O. S. W. Ey. Co. ys. Ferryman, 95 App. 202. FIXTURES Intention: — In General: The intention with wdiieh the fixtures were put in place is the chief test as to whether they are removable by a tenant. The fact that in order to remove it, a fixture must be taken to pieces, i"s not conclusive against the tenant's right; neither is that right destroyed by the mere fact that the removal of the fixture may cause some injury to the thing itself. If, however, the removal causes a serious injury to the freehold, by reason of the manner in which the fixtures have been attached, that fact is to be taken into consideration in determining what was the in- tention of the parties with reference to its becoming part of the freehold when it was erected. Baker vs. McClnrg, 198 111. 28 ; Kelley vs. Austin, 46 111. 156 ; Dooly vs. Crest, 25 Ilf. 551; Gnnderson vs. Kennedy, 104 App. 117; XII 111. Notes 680, § 19. 550 FLIGHT The intention sought is not the undisclosed purpose of the actor but the intentioi^ implied and manifested by his act. It is an intention which settles not merely his own rights, but the rights of others who have or may acquire interest in the property. They cannot know his secret purpose but the inferences to be drawn from what is external and visible. Fifield vs. Farmers Bank, 47 App. 118; Aft'd., 148 111, 163; Kloess vs. Katt, 40 App. 99. — Evidence of Intention: The rule for determining wdiat are to be regarded as fixtures is as follows: First, real or construc- tive annexation of the thing in question to the realty; second, appropriation or adaptation to the use or purpose of that part of the realty to which it is connected; and third, the intention of the party making the annexation to make it a permanent accession to the freehold, this intention being inferred from the nature of the article affixed, the relation and situation of the party making the annexation and the policy of the law in relation thereto, the structure and mode of the annexation, and the purpose of use for which the annexation has been made. Baker vs. MeClurg, 198 111. 28; Fifield vs. Farmers Bank, 148 111. 163; Sword vs. Low, 122 111. 487; Schnuling vs. Eoekford Co., 154 App. 308; Fifield vs. Farmers Bank, 47 App. 118. — Reservation jjy Parol: Parol proof to show w^hat fixtures on the estate at the time of its conveyance, passed with the deed is inadmissible. The deed must settle that question. McLaughlin vs. Johnson, 46 111. 163; Smith vs. Price, 39 111. 29; Damery vs. Ferguson, 48 App. 224. FLIGHT Admissibility : Flight or an attempt to escape after indictment found, or before, on a criminal charge being preferred against one, is a circum- stance against the prisoner if unexplained. Evidence is admis- sible to show that the accused gave "straw bail" and forfeited his recognizance by voluntary absence, and passed under various aliases. Barron vs. People, 73 111. 256; People vs. Warfield, 172 App. 1; Peo- ple vs. Scott, 261 111. 165. But it is error to instruct jury that flight is evidence of guilt. It is only evidence tending to prove guilt. Nor should court tell jury that if flight be proved, it must be satisfactorily explained, consistent with innocence of accused. This might be understood as requiring him to prove an innocent purpose beyongl doubt. Fox vs. People, 95 111. 71. Proof that accused traveled under an assumed name is inad- missible where not in connection with offense charged. People vs. Warfield, 261 111. 293. FORCIBLE ENTRY AND DETAINER Nature of Action : The action of forcible detainer, Avhile not a common law action, is an action at law relating to real property. Ruttei vs. Maher, 147 App. 622. FORCIBLE ENTRY AND DETAINER 551 Possession : — Material Question: The material qnestion for tlie jury in forcible detainer is to determine whether at the time alleged, plaintiff was in actual, peaceable possession of the premises, and whether defendant entered against plaintiff's will and retained the possession. Only the innnediate right of possession is involved, Ilamniond vs. Doty, 184 111. 246; Woodbmy vs. Eeyel, 12S Ai)p. 459. Two questions must arise, first, as to exclusive possession of plaintiff, and second, the invasion of his possession by defendant. Jamieson vs. Graham, .57 111. 94. — Exercise of Dominion: Where it is shown plaintiff has sub- jected premises to exclusive control by open and notorious acts of dominion, such acts will be held to constitute actual possession. Allen vs. Tobias, 77 111. 169. — Eight of Possession: One suing under forcible entry and detainer act must show a right of possession in himself and he cannot rely upon the lack of right in those whom he seeks to dis- possess. FitzGerald vs. Quinn, 165 111. 384; Mollwain vs. Karstens, 152 111. 135; Coleman vs. Connelly, 139 App. 383. Forcible entry and detainer cannot be maintained v^here plain- tiff has never been in possession of land or entitled to possession prior to institution of action. Knox vs. Hunter, 150 App. 392; Aurner vs. Pierce, 106 App. 206. Constructive possession is not a possession which may be re- stored by forcible detainer. mitehill vs. Cooke, 140 App. 520. Burden of Proof: The person who is in actual and peaceable possession of land will be presumed to be rightfully in possession, and the burden of proof is upon him who would dispute that possessory right. Hammond vs. Doty, 184 111. 246; FitzGerald vs. Quinn, 165 111. 354; Gosseliu vs. Smith, 154 111. 74. But where plaintiff in a forcible detainer case has proven that he has the right of possession at time of suit brought, he has made out a prima facie case entitling him to recover, and thereby casts upon defendant the burden of disproving it. Floersheim vs. Baude, 110 App. 536. Title: — In General: In actions of forcible detainer, the title to the premises cannot be inquired into for any purpose. Thomas vs. Olenidi, 237 111. 167; Moore vs. Eichardson, 197 111. 437; McDoll vs. Shepardson, 156 111. 383 ; Eenusczaitis vs. Eadawiezus, 172 App. 259; XII 111. Notes 689, § 67. Even though it is admitted in a forcible detainer suit that the title to the premises is in plaintiff, it does not necessarily follow from such admission and from the fact that the title cannot be adjudicated in such action, that plaintiff is entitled to possession of the premises. Pietsch vs. Pietseh, 245 HI. 454. — Deeds: Where actual possession of a part of the premises is shown to be in plaintiff, plaintiff's deed for premises is proper evidence for purpose of showing extent of his possession. Thomasson vs. Wilson, 146 til. 384; Huftalin vs. Misner, 70 111. 205; Pearson vs. Herr, 53 111. 144. 552 FORCIBLE ENTRY AND DETAINER But defendant has no right to introduce deeds to show adverse title in himself. Slate vs. Eisenuieyer, 94 111. 90. Title deeds may be introduced to show character and extent of possession claimed, although validity of titles cannot be in- quired into. Eagor vs. McKay, 44 App. 79 ; Bloomington vs. Bropby, 32 App. 400 ; Bloomington vs. Graves, 28 App. 614. Deeds under which a party claims may be read in evidence for purpose of showing the boundaries. Griffin vs. Kirk, 47 App. 258 _; Brooks vs. Bruyn, 18 111. 539. — Judicial Sales: While it is true that the question of title cannot arise, nevertheless, a purchaser at a judicial sale of land cannot recover against a judgment debtor, or one succeeding to his rights and possession, unless he offers in evidence a valid judgment, execution and sheriff's deed. Those are indispensable requisites to a recovery, for the reason that a sale of land under judgment, and a failure to redeem must be shown. In such case, the judgment, execution and sheriff's deed are evidence that the land has been sold and that there has been no redemption. Peters vs. Balke, 170 111. 304; Kratz vs. Buck, 111 111. 40; Johnson vs. Baker, 38 111. 98. Where right of possession is predicated upon a sheriff's deed, not sufficient alone to introduce deed, but proof of validity of proceedings upon which it is predicated is essential. Antognolie vs. O 'HaveZedk, 139 App. 142; Nocholson vs. Walker, 4 App. 404. — Homestead: In action against a married woman, where record of a judgment in ejectment against her husband and her expulsion from the premises thereunder was admitted in evidence against her objection, it was held erroneous to exclude testimony tending to show that she was in possession under a homestead right in herself and children, as wadow of a former husband, and independent of any right of the husband who was the defendant in the ejectment suit in the premises. Morrissey vs. Stephenson, 86 111. 344. — Conveyance: Though questions of title cannot be tried, yet the plaintiff's deeds are admissible in evidence to show that the property was conveyed to him by a grantor in possession. 'Muller vs. Ba^lke, 167 ni. 150. Force: — Actual Violence not Necessary: An entry against the will of the occupant is forcible whether actual violence, amounting to a breach of the peace, is used or not. Hammond vs. Doty, 184 111. 246; Phelps vs. Eandolph, 147 HI. 335; XII 111. Notes 684, § 5. Any entry which is against the will of the occupant is a for- cible entrv within the meaning of the statute. Eoberts vs. McErven, 81 App. 413; Coverdale vs. Curry, 48 App. 213. Trespass: But action does not lie to recover possession of land where it does not appear plaintiff was dispossessed by de- fendant, but that plaintiff was guilty of trespass. Preiss vs. Naliborski, 133 App. 205. FORCIBLE ENTRY AND DETAINER 553 Notice and Demand: — llhgal Euirij: Where a party makes an ille^'al and forcible entry upon land in the possession of another, no notice or demand for possession before bringing action is necessary. Stillinan vs. Palis, 134 111. 532; Naiinian vs. Buroli, 91 App. 48. But where force and injury are not involved, demand must be shown. Thomasson vs. Wilson, 146 111. 384. — Tenant Tlolding Over: No demand is necessary before bring- ing forcible entry and detainer against a tenant holding over. Henion vs. Vavrick, 126 App. 292 ; Webb vs. Heyuian, 40 App. 335 ; Frank vs. Taubnian, 31 App. 592. — Waiver of Notice: Where by the terms of the lease, notice and demand are waived, the lessor may, without notiee or de- mand, declare the term ended and by such declaration, notice thereof and notice to quit to the lessee, the term of the lease is ended and lessee cannot thereafter, by tendering the rent, avoid the forfeiture. MeKennnn vs. Mnlvey, 157 App. 339; Strauss vs. Fornaciari, 147 App. 18; Kenyon vs. Manley, 125 App. 615. — Proof of Service: The fact of the delivery of a copy of the "demand in writing for possession," to the party against whom it is proposed to bring such action, cannot be proven by an indorse- ment on the original paper, either by an officer or a private per- son, whether sworn to or not. Service must be proven by a wit- ness. Venninn vs. Vennum, 56 111. 430. What Not Material: — Date of Entry: The precise day of the entry is immaterial and it is not necessary to prove entry to have been made on day named in complaint. Spurek vs. Forsythe, 40 111. 438. — Conveyance After Suit: The fact that plaintiff may have conveyed all his interest in the premises after suit brought, does not preclude his right of recovery. Golden vs. Menker, 132 App. 25. — Ejectment: The pendency of an action of ejectment is not a bar to the maintenance of an action of forcible detainer with respect to the same premises, as the former involves question of title, and latter the right to possession. Merki vs. Merki, 113 App. 518. — Suit For Rent: Beginning a suit in assumpsit for rent pay- able in advance on the first day of the moiith does not preclude the bringing of a forcible detainer proceeding before the expira- tion of such month, if the rent due is still unpaid. Schumann Piano Co. vs. Mark, 208 111. 282. . — Immoral Purpose: Defendant cannot show that premises were leased to him for immoral purposes. Tobey vs. Schiiltz, 51 App. 487. — After Acejuired Title: One who has entered upon vacant or unoccupied lands without right or title, cannot show in defense to forcible entry and detainer proceedings that he acquired a tax deed to the property after taking possession. Palmer vs. Frank, 169 111. 90. 554 FOREIGN JUDGMENTS FOREIGN JUDGMENTS See Records, Copies. OF SISTER STATES Jurisdiction: — Necessity For: A judgment rendered in a sister state, when defendant has not been served with process, or entered any ap- pearance by attorney or otherwise, is a nullity and will not be enforced in this state. Sim vs. Frank, 25 111. 125; Ellinger vs. Caspary, 76 App. 523. — Presumptions: A presumption of jurisdiction obtains where a court of general jurisdiction proceeds to adjudicate a cause; but this presumption applies only when the record is silent upon the question, and if there is an affirmative showing in the record that there was no jurisdiction, the decree is void and open to direct or collateral attack. Forrest vs. Fey, 218 111. 165; XIII 111. Notes 145, § 670. The jurisdiction of the supremo court of another state is pre- sumed. VanMatre vs. Sankey, 148 111. 536; Dunbar vs. Hallowell, 34 111. 168. Where, in action on a judgment rendered by supreme court of another state, the record did not show affirmatively that there was service of process upon the defendant, nor that there was not, but simply was silent, the judgment itself was prima facie evidence of jurisdiction. Dunbar v8. Hallowell, 34 111. 168; Lawrence vs. Jarvis, 32 111. 304. Upon a judgment rendered by a superior court of ajiother state, it will be presumed, in absence of proof, that the court rendering the judgment had jurisdiction. Dunbar vs. Hallowell, 34 111. 168. Service of Process: Return of officer is only prima facie evidence of service as re- quired by statute, and parol is competent to show service void. Newman vs. Greely State Bank, 92 App. 638; Bimelar vs. Dawson, 5 111. 536. Conclusiveness : If the record of a judgment rendered in a sister state shows that defendant was personally served with process, or recites any other facts showing jurisdiction over his person, parol evi- dence is inadmissible to contradict the same in suit on transcript of record properly certified. Zepp vs. Hager, 70 111. 223. A judgment rendered in a sister state is not regarded as for- eign, but domestic, and the only question that can be inquired into in suit on same, is A\hether the court had jurisdiction of the subject matter, and of the persons of the parties. Zepp vs. Hager, 70 111. 223. If it appears from tlie record that the court which pronounced judgment had jurisdiction of the person of defendant, it will be conclusive of the rights of the parties, and no evidence can be heard to impeach it. But where the record fails to show a proper service or an appearance, the defendant may show he was not FOREIGN JUDGMENTS 555 within the territorial jurisdiction of the court, and in no manner submitted himself to its jurisdiction. Zepp vs. Hager, 70 111. 223. The record of a judgment rendered in another state may be con- tradicted as to facts necessary to give the court jurisdiction, and if it be shown that such facts did not exist, the record will be a nullity, notwithstanding- it may recite they did exist. Want (if jurisdiction may be shown either as to the subject matter or person, or, in a proceeding in rem, of the thing. Oleson vs. Maekolite Co., 116 App. 573; Contra, Newman vs. State Bank, 92 App. 638; McMillan vs. Lovejoy, 115 111. 498. (Note: Barnett vs. Wolf, 70 111. 76; Harris vs. Lester, 80 111. 307; Hunter vs. Stoneburner, 92 111. 75; Waterbury Natl. Bank vs. Reed, 231 111. 246; Harrison vs. Hart, 21 App. 348, "that rec- ord cannot be impeached by evidence de hors the record, when rec- ord recites actual service of process and there is nothing in the record to contradict such finding or return, 'are cases involving judgments of this and not of sister state.' ") Admissibility in Evidence: — Ill General: A transcript -of a judgment of a sister state, when properly certified under the act of Congress, is admissible in evidence in action upon such judgment, although it shows no placita. And no questions are open to inquiry except jurisdiction. McMillan vs. Lovejoy, 115 111. 498. In action to recover moneys lost Vvhile in the custody of a safety deposit company, it is proper to admit in evidence a foreign decree of distribution in favor of plaintiff, for purpose of confirm- ing his testimony that he had the amount of money claimed to have been lost, and in such case it is not necessary to introduce entire record of probate proceedings. Mayer vs. Brensinger, 180 111. 110. The record of a judg-ment of a court not of record and of lim- ited territorial jurisdiction is not admissible in evidence without affirmative evidence that the parties resided within the jurisdic- tion of the court. Kopperl vs. Nagy, 37 App. 23; Shufeldt vs. Buckley, 45 111. 233. Where declaration describes a judgment against one, judgment against that one and another, or others is inadmissible. Schertz vs. First Nat. Bank, 47 App. 124; Mann vs. Edwards, 138 111. 92. — Justice of Peace Judgments: In order to entitle a transcript of a judgment of a justice of peace of another state to be received in evidence in this state, it must be shown that by the laws of the state where the judgment was rendered, the justice had jur- isdiction over the subject matter upon which he attempted to adjudicate. Trader vs. McKee, 2 111. 557; Cavanaugh vs. Morris, 160 App. 55. Weight and SuiRciency as Evidence: A judgirient of a court of foreign state having jurisdiction of the subject matter and of the parties, is conclusive evidence in the courts of this state, and can be impeached only for fraud. Evi- 556 FOREIGN JUDGMENTS denee to show that plaintiff had no cause of action in a suit on such judgment is inadmissible. Smith vs. Smith, 17 111. 482; Bimelar vs. Dawson, 5 111. 536. A judgment of a sister state which, by the laws thereof, is conclusive upon tlie parties, is equally so when sued on in this Belton vs. Fisher, 44 111. 32; Cook vs. Reilly, 119 App. 347. The force and effect of a decree of a sister state, when set up as an estoppel, to deny the fact necessarily found by it cannot be avoided by showing the defendant in such former suit, and against whom the finding is offered, was insane at time such pro- ceedings were had therein. The effect of such decree can be obvi- ated only by a direct proceeding in the courts of such state to impeach it or set it aside. Hannah vs. Eeed, 102 111. 596. A judgment against an administrator in one state is no evi- dence of indebtedness against a different administrator of the same decedent in another state, for the purpose of affecting assets re- ceived by the latter under his trust. Eos^eothal vs. Eenick, 44 111. 202; Elting vs. First Natl. Bank, 173 111. 368. The ''public" acts of this state are of as much dignity as the judicial proceedings of any other state, and if the laws of this state create obligations between its own citizens, such obligations are supreme and will not in effect be nullified unless they are in contravention of the organic law. A judgment of a sister state will be disregarded if to enforce and recognize sucli judgment would in effect nullify the obligations imposed by law in this state between citizens thereof. Baker vs. I. C. E. E. Co., 158 App. 520. Authentication : The record of a judgment in a foreigii court is properly au- thenticated where it is certified by the clerk, under seal, to_ be a true and complete copy of the proceedings; bears the certificate of the presiding judge, under seal, that the clerk's certificate is in due form, and that the clerk signing it was at that time the clerk of said court, and a certificate of the clerk, under seal, that the judge who signed the certificate was at that time duly quali- fied and commissioned presiding judge of said court, according to the laws of the foreign state. Light vs. Eeed, 234 111. 626. The certificates of the clerk of a foreign court, under seal of such court, certifying that the record is complete, must be pre- sumed to be correct, and cannot be impeached by the mere infer- ence that some portion of the transcript, not shown to be a neces- sary part of the record, is absent. Light vs. Eeed, 234 111. 626. A properly certified copy of the record of a foreign judgment showing that defendant appeared in the foreign court and there was a trial by jury and a verdict against him for a certain sum, followed by recital of a formal judgment for the amount of the verdict and costs, show^s a valid judgment, and as the record shows FOREIGN JUDGMENTS 557 a personal appearance ])y the defendant, jurisdiction of the for- eign court will be presumed. Light vs. Reed, 234 111. 62G. Act of Congress providing method for authenticating judgments of sister states is not exclusive. By statute, records of courts may be proved by a copy thereof, certified under the hand of the clerk of the court having custody thereof, and the seal of the court, and applies to foreign judgments as well as domestic, and is a proper method. People vs. MiUer, 195 111. 621; Garden City Sand Co. vs. Miller, 157 111. 225. The autlientication of a copy of the records, made by ^deputy register of deeds, signed as deputy, is sufficient where the deputy is authorized to act in case there is no register who can act. Garden City Sand Co. vs. MiUer, 157 111. 225; People vs. Miller, 195 111. 621. A certificate by a deputy register of deeds, signed as such deputy, will be presumed to have been made by reason of the vacancy of the register's office, or of the register's absence or inability to act, where the deputy's power to act, under the statute, depends upon such vacancy, absence or disability. Garden City Sand Co. vs. Miller, 157 111. 225; People vs. MiUer, 195 111. 625. COURTS OF FOREIGN COUNTRIES Conclusiveness as Evidence: — In General: A judgment of a foreign court having jurisdic- tion of the subject matter and of the parties is conclusive evidence in the courts of this state and can be impeached only for fraud. Evidence to show that plaintiff had no cause of action in suit on such judgment is inadmissible. Baker vs. Palmer, 83 111. 568; Calhoun vs. Ross, 60 App. 309. — Status of Person: And this is particularly true with respect to judgments or decrees affecting the status of a person, for they are in the nature of judgments in rem which are binding on the whole world. (Decree of divorce.) Roth vs. Roth, 104 111. 35; Dunham vs. Dunham, 162 111. 589. — Limitation of Ride: The limitation to this rule is that it may be shown such judgment or decree was obtained by means of fraud, or gross abuse of the process of the court, or flagrant departure from the ordinary course of judicial procedure, as, for instance, that a party in interest sat as judge in the cause. Rotii vs. Roth, 104 III. 35; Field vs. Field, 117 App. 307. How Authenticated: Foreign judgments may be proven by copies thereof, duly authenticated by the duly authenticated certificate of the officer properly authorized by law to give such copies. Calhoun vs. Ross, 60 App. 309. (See Records — Judicial — Authenti- cation.) A judgment of a court of general jurisdiction must be held to have been rendered in the due exercise of that jurisdiction over the subject matter and person, unless the contrary is shown. Calhoun vs. Ross, 60 App. 309. 558 FOREIGN LANGUAGE FOREiaN LANGUAGE See Depositions, Interpreter. FOREIGN LAW Pleading- : Where the statute of another state is relied upon as a defense it must be pleaded, at least in snl)stance, and if not pleaded, it is error to permit it to be proven. Palmer vs. Marshall, 60 111. 289. But where declaration on common counts, Quasre ? Donovan vs. Purtell, 216 111. 629. An action on the case is an exception to the general rule, and proof of foreign law may be made under general issue. Christiansen vs. Graver Tank Works, 223 111. 142; Coates vs. C. K. I. & P. Ey. Co., 134 App. 217. Judicial Notice : Judicial notice will not be taken of statutes of another state. Coates vs. C. E. I. & P. Ey. Co. 239 111. 154; Leathe vs. Thomas, 218 111. 246; Close vs. Stuyvesant, 182 111. 607; Bonnell vs. Holt, 89 111. 71; Hyman vs. Bayne, 83 111. 256; Crouch vs. Hall, 15 111. 263"; XII 111. Notes 473, § 7. Laws of foreign state are matters of fact which the court cannot judicially notice. Eoyal League vs. Kavanaugh, 233 111. 175; Forsythe vs. Barnes, 228 in. 326; Shannon vs. Wolfe, 173 111. 253. And whether as ground for action or defense, must be proven like any other fact. Dearlove vs. Edwards, 166 111. 619; Hakes vs. Bank of Terre Haute, 164 111. 273; Miller vs. Wilson, 146 111. 523; .Mason vs. Dorsey, 35 111. 424; Chumasero vc. Gilbert, 24 111. 293; Smith vs. Whittaker, 23 111. 367; C. & N. W. Ey. Co. vs. Johnson, 27 App. 351; Howitz vs. Fredson, 178 App. 303. Presumptions : — Existence of Common Lmv: In absence of proof to contrary, the common law will be presumed to prevail in the states of the Union. On a common law question therefore, the courts of one state will assume the common law is in force in a sister state unless proof to contrary is made. Forsythe vs. Barnes, 228 111. 326; Scholton vs. Barber, 217 111. 148; Hogue vs. Steele, 207 111. 340; Beid vs. Northern Lbr. Co., 146 App. 371. In absence of any allegations or proof of the statutes of another state, it must be presumed that the common law obtains there, or else that the laws of such state are similar to the laws of this state. Julliard Co. vs. May, 130 111. 87. — Construction of Similar Statutes: Courts of sister state will be presumed to construe substantially similar statutes the same as courts of Illinois. Clark vs. Jackson, 222 HI. 13. — Adoption of Statutes: The presumption is that a statute of another state, when adopted, is adopted with the construction given it by the courts of that state. EeQua vs. Graham, 187 111. 67; Martin vs. Judd, 81 111. 488; Jackson vs. Sec. Life Ins. Co., 135 App. 86; Hudson vs. King Bros., 23 App. 118; XIV 111. Notes 641, §216. FOREIGN LAW 559 In adopting Euglisli statutes, the legislature must be presumed to have intended to adopt it with the construction already given it by the English courts. Hoiikins vs. Medley, 97 111. -102. — Similarili) of Laws: In absence of proof as to statute laws of a sister state, tliey will be presumed to be the same as the lex fori where there is no conniion law rule applicable. Nehrliig vs. Nehriug, l(i4 App. 527; Htitiuss vs. Natl. Bank, 72 App. 314. Where party interested in clainung benefit of a foreign law or statute fails to show^ what is the law of the place where contract was made or was to be performed, the courts of this state, in action upon the contract, will presume the foreign law to be the same as the law of this state and will apply the law of this state to the contract. Shannon vs. Wolf, 173 111. 253. But where pleaded and pi'oved the lex loci may be invoked. Morris vs. Wibaux, 159 III. 627. It will not lie presumed that statute of a foreign state governing the organization and specifying the powers of a fraternal insur- ance company contain restrictions limiting the ages of persons who may become members. Wood vs. Mystic Circle, 212 111. 532. Admissibility of Evidence: — Judicial Construction: The opinion of the highest court of a sister state, interpreting and declaring the law of such state, is proper evidence of the law of that state. Coates vs. C. R. I. & P. Ey. Co., 239 111. 154; Simpson vs. So. Pacific Co., 157 App. 158. — Printed Reports and Statutes: Law of sister state is ques- tion of fact to be proven like any other fact, and construction of such law mav be proven hx printed reports of adjudged cases. Coates vs. C. R. I. & P. Ry. Co., 239 111. 154; Hayvpard vs. Since- baugh, 141 App. 395; Figge vs. Rowlen, 185 111. 234. Printed copies of statutes of a foreign country are admissible where shown to the reasonable satisfaction of the court to be authentic. Dean & Son vs. Conkey, 180 App. 162. But printed statutes, printed by private enterprise, purporting to show the laws of a sister state are not competent where they do not purport to have been published by authority, notwithstanding the same are accompanied by a certificate signed by attorney gen- eral and secretary of the state in question, in which such officers certify that they have examined and compared the book in ques- tion and were satisfied it contained all the laws of a general nature in force at the time of the certificate. Laub vs. DeVault, 139 App. 398. The printed statutes of another state may be read in evidence. If a party objects to portions of such statutes so read as being irrelevant, he should raise the question by copying them into the bill of exceptions. Charlsworth vs. Williams, 1(3 111. 338. Under section 10 of the Evidence act, providing that the printed statute books of foreign states purporting to be printed under the 560 FORGERY authority of siicli state, shall be evidence of the acts contained thereon, a statute book stating on its title page that it is published by the authority of the state is admissible. McCraney vs. GIos, 222 111. 628 ; G. P. Shooting Club vs. Crosby, 181 111. 266; Eeifschneider vs. Reifschneider, 241 111. 92. A book purporting on its title page to be the statutes of Ohio, published by authority of the legislature, in force August 1st, 1854, held admissible. Eagan vs. Conley, 107 111. 458; McDeed vs. McDeed, 67 111. 545. — Authenticated Copies of Foreign Legislative Acts: A copy of the act of the legislature of sister state, to which is attached certificate of Secretary of State, that it is a true copy, and the certificate of the Governor of the official character of the Secretary of State, to which latter certificate the seal of state is attached, is not a properly authenticated copy of statute. Lafayette vs. Stone, 2 111. 424. Acts of legislature of another state must be authenticated by seal of such state. The seal of the secretary of such state is not sufficient. Sisk vs. Woodiiiff, 15 111. 15. — Parol Evidence: Statutes of foreign state cannot be proven by parol. Hoes vs. VanAlstyne, 20 111. 202; MeDeed vs. McDeed, 67 111. 545; Contra, Love vs. McElroy, 106 App. 294. The common law of a foreign state may be proved by parol evi- dence. The usual course is to make such proof by the testimony of competent persons instructed in the law. McDeed vs. McDeed, 67 111. 545. — Expert Testiynony : Testimony of witnesses learned in the law of a foreign country, is admissible to show construction of same. Canale vs. People, 177 111. 219. The construction of statutes of a sister state, given by the trib- unals of that state, may be given in evidence by witnesses learned in such laws. Hoes vs. VanAlstyne, 20 111. 202. Proof Before Court: To prove the law of a sister state, it is proper to introduce such proof before the court and out of the presence of the jury. While the foreign law must be proven as a fact, the better opinion seems to be that this proof must l)e made to the court, rather than to the jury. Christiansen vs. Graver Tank Works, 223 111. 142. FORGERY See Handwriting, Weight and Sufficiency. Questions of Law and Fact: It is a question for the court as to whether or not the writing was such an instrument as that the forgery would constitute a crime. Wallace vs. People, 27 111. 44; Waterman vs. Peoiile, 67 111. 91; Brown vs. People, 86 111. 2.39; Shirk vs. People, 121 111. 61; People vs. Dougherty, 246 111. 458. FORGERY 561 Presumptions and Burden of Proof: TlierL- is no presiunplioii ol' law of an intent to defraud from proof that accused has actually forged a note on another person when he had not uttered same, but this is a question of fact for the jury, to find from the evidence, including his possession of the same, and surrouiuling circumstances. The possession of the forged paper, while evidence tending to prove a fraudulent intent, is not conclusive. The circumstances may clearly repel any presumption of guilt. Kotter vs. People, loO Til. 441; Fox vs. People, 95 111. 71. Venue is a jurisdictional fact whicli prosecution is required to prove, but not beyond a reasonable doubt. Peo])le vs. Mcintosh, 242 111. 602. The delivery of a forged note justifies the inference that it was forged at place of delivery, if there is no evidence tending to show it was forged elsewhere. People vs. Mcintosh, 242 111. 602; Langdon vs. People, 133 111. 382. Admissibility of Evidence: — Scc())i(lar!j Evid( ncc: Only the note described and as set out call be proven, but no particular hind of evidence is called for to prove it. Where the tenor of the note is set out, it is not necessary to allege any excuse for not setting it out or for not describing it with sufficient certainty, as, that it was lost or destroyed, or in the hands of accused. It remains for prosecution to prove the charge as particularly as alleged, and it may be done by any competent evidence. Secondary evidence is competent when proper founda- tion is laid. The same rules of evidence are applicable to prove the issue as in other cases. Cross vs. People, 192 111. 291. — Photographs: A photographic copy of a forged note is ad- missible in evidence, where the original has so faded as to become illegible, on proof that it is an exact copy of the words of the orig- inal, when it is not offered to prove the handwriting of the sig- natures, but merely the words of the note. If material to show that it is in exact similitude with the original in respect to form, shading and coloring, the testimony of an artist or expert might be required. Duffin vs. People, 107 111. 113. — Unanthcniicated Transcripts of Foreign Proceedings: Files of proceedings in justice's court of another state, not properly authenticated, are inadmissible for purpose of identifying accused, he being defendant in such proceedings. Michaels vs. People, 208 111. 603. — Other Forgeries: Other forgeries are admissible. Steele vs. People, 45 111. 152 { XII 111. Notes 697, § 12. — Possession of Other Forged Instruments: Evidence is admis- sible to show that defendant had, about same time, in his possession, or had uttered or attempted to utter, other forged instruments of same description, as tending to prove guilty knowledge. Anson vs. PeoT)le, 148 111. 494; Fox vs. People, 95 111. 71; Cross va People, 47 111. 152; Steele vs. People, 45 111. 152. — Adniissions and Confessions of Defendant: Evidence of the admissions or statements of defendant in reference to note de- Ev.— 36 562 FORGERY scribed in the indictment as having been forged, is admissible against him. Anson vs. People, 14S 111. 494; Fox vs. People, 95 111. 71. But what he said about another note not in evidence is not ad- missible to prove charge upon which he is being tried. Anson vs. People, 148 111. 494. It has long been settled in our law that while a free and volun- tary confession of guilt is of the highest order of evidence, one extorted is never received. So where one, on his arrest for forgery of the signature of a public officer, to papers necessary to procure a requisition of the Governor for the return of another charged with crime, was told he was arrested on that "requisition business," replied, "I have done the whole thing and am willing to suffer the consequences," such statements were admissible on qaestion of his guilt of charge of forgery. Langdon vs. People, 133 111. 382. Weight and Sufficiency of Evidence: Evidence of a stenographer that she made a type-written copy of the forged note from the original, that she compared it with the State's attorney, by first reading the original while he held the copy, and then reading the copy while he held the original, and that the- copy was true and correct, is prima facie sufficient proof that the copy was correct. Cross vs. People, 192 111. 291. Venue is proven where there is evidence from which it can be reasonably inferred that the crime was committed within the juris- diction where the prosecution takes place. People vs. Mcintosh, 242 111. 602. Under a count in an indictment for the passing of forged note as genuine, knowing it to be forged, strict proof of the knowledge of accused as to the genuineness or falsity of the note, like all other material facts constituting the offense, is required. The knowledge the note was not genuine need not be proven by direct and positive evidence, but may be inferred from circumstances, but, neverthe- less, it must be satisfactory to the minds of the jury. Parker vs. People, 97 111. 32. Proof that a note was forged by defendant, and that he attempted to pass it in the county where suit was brought, is evidence that the forgery was committed in that county, in absence of other proof where it was forged. Bland vs. People, 4 111. 364. Proof that the signature is not in handwriting of defendant is entitled to but little weight or reliance, for the reason that a forger seeks to disguise his own handwriting and to imitate that of the one whose name he forges. Langdon vs. People, 133 111. 382. Variance : Where the indictment charged forgery of name of Charles Little- more, but the proof showed that accused, at time of passing note, represented the maker as Lidamore, giving his residence, etc., this rendered proof unnecessaiy that there was such a person as Little- FORMER ADJUDICATION 563 more, as the person taking the note was induced to take it as the note of Lidamore. Parker vs. Pooplo, 97 111. 32. "Where, in an indictment, tlic maker's name was spelled "Otlia Carr, " while in the note oft'ered in evidence it was "Oatha Carr," the variance was held fatal. Brown vs. People, fif) 111. 344. A variance as to the middle initial of a name is not fatal. Langdon vs. People, 133 111. 382. Witnesses : The person whose signature is alleged to have heen forged, while a competent, is not an indispensable witness to establish the forgery. Auson vs. People, 148 111. 494. FORMER ADJUDICATION See Physicians and Surgeons, Former Jeopardy. IDENTITY OF SUBJECT MATTER When Judgment Estops: A judginent in a former proceeding is an estoppel only where it appears from the face of the record or by extrinsic evidence that the precise matter in controversy in the suit at bar was raised and determined in the proceeding which is urged as an estoppel. A judgment in a former proceeding between the same parties only bars subsequent action on matters actually settled by it.^ The estoppel of a judgment extends to the questions involved in the issue and not to any incidental matter, though it may have arisen and been passed upon. Kraiise vs. Nolte, 217 111. 298; Smith vs. Roimtree, 185 111. 219; Sawyer vs. Nelson, 160 111. 629. It is not always true that an adjudication in a former suit canuot be made available as an estoppel, unless it appear that the thing sought to be recovered and the cause of action in both suits were the same. Where the second action is upon the same claim or demand as the first, the judgment in the former suit, if rendered upon the merits, is an absolute bar or estoppel to the subsequent action, and, as to the claim in controversy, concludes both parties and privies, not only as to every ground of recovery or defense actually presented in the action, but also as to every ground which might have been presented. But where the second action between the same parties is upon a different claim or demand, the judg- ment in the first action operates as an estoppel only as to those matters in issue, or points controverted, upon the determination of which the finding or verdict was rendered. In other words, where the former adjudication is relied upon as an answer and bar to the whole cause of action then it must appear that the cause of action and thing sought to be recovered are the same in both suits, but "where some specific fact or question has been ad- judicated and determined in a former suit, and the same fact or question is again put in issue in a subsequent suit between the same parties, its determination in the former suit, if properly 564 FORMER ADJUDICATION presented and relied upon, will be held conclusive upon the parties in the latter suit, without regard to whether the cause of action is the same in both suits or not." L. N. A. & C. Co. vs. Carson, 169 111. 247; Riverside Co. vs. Town- seud, i20 TU. 9; Haniia vs. Seed, 102 111. 596; Wright vs. Griffey, 147 111. 496; See also People vs. Waite, 243 111. 156; South Park Com. vs. Ward & Co., 248 111. 299; XIII 111. Notes 111, § 441. Parol : — In General: It is competent to show by extrinsic evidence what question or questions were raised and determined in a former suit. Sawyer vs. Nelson, 160 111. 629; Moody vs. Chi. T. & T. Co., 138 App. 233; People vs. Wilson, 260 111. 145. Where a judorment is pleaded or offered in evidence in bar of a claim, and it is uncertain from the record what was adjudicated upon at the time the judgment was entered, parol evidence is ad- missible to show what matters were in controversy, what testimony was given and what questions were submitted to the court for its determination at the time the judgment was entered. Heisi'hbaek vs. Cohen, 207 111. 517; Eeubel vs. Title Guaranty Co., 199 HI. 110; Wright vs. Griffey, 147 111. 496; C. B. & Q. Ey. Co. vs. Schaefer, 124' 111. 112; State Bank vs. Wheeler, 146 App. 568. Where several distinct items are declared upon in action of debt and the judgment is general, the presumption, in absence of any- thing in the record to the contrary, is that each item was included in the judgment ; but such presumption may be overcome by parol proof shoAving that certain of the items were not offered in evidence and not included in the judgment. People vs. Becker, 253 111. 131. A judgment of a court of competent jurisdiction upon a question directly involved in one suit is conclusive as to that ciuestion in another suit between the same parties. But it must appear either upon the face of the record or be shown by extrinsic evidence that the precise question was raised and determined in the former suit. If there be any uncertainty on this head, in the record, the whole su])jeet matter of the record will be open to a new contention, unless this uncertainty be removed by extrinsic evidence showing the pre- cise point involved and decided in the former proceeding. Palmer vs. Sager, 143 111. 34. ^\niere it does not appear from a particular order that there was a hearing and adjudication upon the merits of a controversy, parol evidence is competent, not to determine what the adjudication was, but to ascertain what was adjudicated upon. Langmuir vs. Landes, 113 App. 134. — Where Shonni hjj Record: Where the cause of action or ground of defense or other matter appears upon the face of the record, no proof is admissible, but where they do not, witnesses may be called to identify the parties, cause of action or defense or other matter litigated. Heisehbach vs. Cohen, 207 111. 717; Eeubel vs. Title Guaranty Co., 199 111. 110; Gray vs. Gillilan, 15 111. 454; State Bank vs. Wheeler, 146 App. 568. FORMER ADJUDICATION 565 Such evidence will never be received for the purpose of impeach- ing or contradicting the record. Eeubcl vs. Title Giiarantoc Co., 109 111. 110. And in such case, if the face of the record does not show the full and true state of the controversy, and the matters investigated in the prior suit, parol evidence is proper to supply what is not shown, but not to contradict the record. C. B. & Q. Ey. Co. vs. Schaffer, 124 III. 112. But where a former recover}^ is relied upon, and it appears prima facie from the record that the Cjuestion has been adjudicated, it may be shown by parol testimony that such question was not, in fact, decided in tlie former suit. Barger vs. Hobbs, 67 111. 592. If the record in the suit on a bond shows that a recovery was had for damages, the record cannot be controverted, and a pleading in another action, which alleges the contrary, is bad on demurrer. But it not appearing by the record whether the question of dam- ages for the detention was litigated in that case, or whether the recovery was only for the value of the propery, the parties can show in a subsequent suit, by parol evidence, what causes of action were in fact litigated. Shepard vs. Butterfield, 41 111. 76. If the pleadings in a former suit presented several issues, and the record does not show upon which issue the judgment was in fact rendered, such fact may be shown by parol. Sawyer vs. Nelson, 160 "ill. 629. A debtor arrested by capias, on a judgment based upon a declar- ation of three counts, in two, only, of which, malice was the gist of the action, nothing appearing to show on which count or counts the judgment was based, may on his application for dis- charge, introduce evidence to disprove malice in connection with the original transaction. Sawyer vs. Nelsou, 160 111. 629; Kitsou vs. Farwell, 132 111. 327; Cf. Kellar vs. Norton, 228 111. 3.56. Pleadings and Files Competent: The pleadings, stenographic notes and instructions given to the jury are admissible for the purpose of establishing the identity of the point determined in the former action. Henry Sons Co. vs. Mahoney, 97 App. 313. Certificate of Evidence: Is admissible to show former adjudication and what issues were tried. Chi. Term. Co. vs. Barrett, 252 111. 86. IDENTITY OF PARTIES Parol: Where record does not disclose identity of parties, parol evi- dence is admissible to show who are the real parties in interest, and that they conducted the litigation in the names of other persons. Bennett vs. Star Mining Co., 18 App. 17; Henry Sons Co. vs. Ma- honey, 97 App. 313. 566 FORMER CONVICTION FORMER CONVICTION Admissibility : Fact of former conviction of infamous crime is admissible for purpose of impeaching credibility of witness. Bailey vs. Beall, 251 111. 577; McLain vs. Chicago, 127 App. 489; Strong vs. Lord, 8 App. 539; Matzenbaugh vs. People, 194 111. 108; Daxaiibeckler vs. People, 93 App. 553; XIV 111. Notes 1153, §303. It is the fact of conviction and not the nature of the punishment that is to be considered. McKeavitt vs. People, 208 111. 460. Such evidence seriously alfects credibility. Simons vs. People, 150 111. 66; Gehm vs. People, 87 App. 158. But does not render Avitness incompetent. Estate of Handlin vs. Law, 34 App. 84; McLain vs. City of Chicago, 127 App. 489. The conviction which may be shown to affect the credibility of a witness must be for some crime which at common law would render him incompetent to testify and not one punishable only by fine or imprisonment in jail. Matzenbaugh vs. People, 194 111. 108; Bartholomew vs. People, 104 111. 601 ; People vs. Spain, 157 Aj)p. 49 ; Daxanbechler vs. People, 93 App. 553. The conviction must have been of an infamous crime, conviction for misdemeanor does not fall within rule. Burke vs. Stewart, 81 App. 506. Nor does conviction for conspiracy to cheat and defraud. Lampkin vs. Burnett, 7 App. 143. Nor conviction for illegal sale of liquor. People vs. Duggan, 150 App. 375; People vs. Maas, 154 App. 11. Conviction may be shown, but not that witness has been indicted, only. People vs. Newman, 261 111. 11. Must be a conviction, not simply prosecution. People vs. Duggan, 150 App. 875. Nor the crime of manslaughter, Benson vs. Chi. Ey. Co., ISO App. 235. Judgments in convictions of infamous offenses for the purpose of discrediting witnesses, are admissible but the evidentiary facts alone are not even admissible in other suits to discredit witnesses. Gallagher vs. Singer Sew. M. Co., 177 App. 198. And evidence that witness was subsequently pardoned is imma- terial and is properlv denied admission. Gallagher vs. People, 211 111. 158; Contra, O'Donnell vs. People, 110 App. 250. A conviction and sentence for an infamous offense establishes a bad moral character. People vs. George, 186 111. 122. Admissibility of Evidence to Show^ Former Conviction: — Criminal Trials: Must be shown by record of such convic- tion. McKeavitt vs. People, 208 111. 460; Kirby vs. People, 123 111. 436; Bartholomew vs. People, 104 111. (iOl ; O'Donnell vs. People, 224 111. 218; Simons vs. People, 150 111. 66. Or a properly authenticated copy thereof, and same must contain at least the caption, entry showing return of indictment into open court by grand jury, indictment and record of arraignment, the FOIWIER CONVICTION 567 impaneling or waiver of a jury, as well as final judgment of the court. These are indispensable parts of the record. Kirby vs. People, 12;5 111. 43Gj ISimous vs. People, 150 111. 66; Peo- ple vs. Murphy, 188 lU. 144. The caption, returning of indictment into open court by grand jury, indictment and arraignment of defendant are as indispensable parts of record as judgment of conviction. Bartholomew vs. People, 104 111. 601; Clifford vs. Pioneer Co., 232 ill. 150; People vs. Gray, 201 111. 140. Same cannot be shown by parol. People vs. Blevin, 251 Til. 3S1 ; O'Donnell vs. People, 224 111. 218; Simoni vs. People, 150 111. 66; Kirby vs. People, 123 111. 436. Fact that defendant becomes a witness in his own behalf does not alter the rule, and records of penitentiary are inadmissible to show former conviction, but same must be shown by record of conviction, as in case of other witnesses. Bartholomew vs. People, 104 111. 601; People vs. Blevins, 251 111. 38T. Cannot be shown by oral testimony drawn out on cross examin- ation, for alleged purpose of ascertaining residence. McKea'\dtt vs. People, 208 111. 460. If defendant's objection to parol evidence is general, and not upon the ground that the records should be produced to prove the facts, the question is waived and the admission of the parol proof is not reversible error. Simons vs. People, 150 HI. 66; O'Donnell vs. People, 224 111. 218. — Civil Actions: The fact of former conviction may be proven as anv other fact, not of record, bv anv witness cognizant thereof. Baily vs. Beall, 251 111. 577 ; Clifford vs. Pioneer Co., 232 111. 150 ; Gage vs. Eddy, 167 111. 102; McLain vs. City of Chicago, 127 App. 489; Estate of Handlin vs. Law, 34 App. 84; Strong vs. Lord, 8 App. 539; XIV 111. Notes 1154, §304. (The fact of conviction was proposed to be proved by witnesses in Gage vs. Eddy, 167 111. 102, cited, and objection sustained. Held error. Courts say: "The conviction for crime, when offered as impeaching evidence at common law, could only be proven by offer- ing the record of the conviction, and identifying the witness as the convicted person. The above section authorized other methods of showing such conviction as impeaching testimony. The ruling of the court was that there could be no proof offered except the record of a conviction for crime. This was error.") But no element necessary to a valid conviction can be omitted whether proven in one way or another. Unless admitted by the witness, or the party for whom he testifies, there must be enough proven either by the record or parol to show jurisdiction of court and a conviction. Clifford vs. Pioneer Co., 232 111. 150. Character of offense may be shown by parol. Schwarzeiisehild vs. Pfaelzer, 133 App. 346; Pioneer Co. vs. Clifford, 135 App. 417. "Wliere it is sought to discredit w^itness by proving his conviction of an infamous crime by the record of such conviction, if the name of the witness is the same as that of the person convicted, the record is admissible without first identifying the witness as the person convicted, since such fact will be presumed, if not denied. Clifford vs. Pioneer Co., 232 111. 150. 568 FORMER JEOPARDY FORMER JEOPARDY Admissibility of Evidence: Demurrer may be sustained to plea of former jeopardy. May be shown under plea of not guilty, Dalton vs. People, 224 111. 333 ; Hankey vs. People, 106 111, 628. The plea of not guilty to an indictment for a criminal offense is all that is necessary to render competent any evidence that tends to prove or disprove any issue involved. People vs. Lee, 248 111. 64. A conviction under an ordinance cannot be shown in bar of an indictment for same offense under statute. Kobbms vs. People, 95 111. 175, A discharge by a justice of peace, of a defendant in bastardy proceeding is not a bar to further proceedings for same cause. Mooney vs. People, 96 Ajip. 622. Where an indictment against a party has been nol. prossed. and a new one found, it is competent to show by parol that the crime charged in both indictments is one and the same, and thus defeat the operation of statute of limitations. Swalley vs. People, 116 111. 247. Pleading- and Practice: Defense cannot be raised by motion in arrest of judgment. People vs. McGinnis, 234 111. 68; O 'Donnell vs. People, 224 111. 218. On demurrer to special plea, question whether indictments were for same offense must be determined 1)y inspection of record, noth- ing but facts appearing from the same being pleaded. Durham vs. People, 5 111. 172; Campbell vs. People, 109 111. 565. Felonies and Misdemeanors: Prohibition applies to felonies and misdemeanors. People vs. Miner, 144 111. 308; Durham vs. People, 5 111. 172; Logg vs. People, 8 App. 99, Identity: Substantial as well as formal identity may be shown by parol testimony. Parol evidence is always admissible and sometimes necessary to establish the defense of prior conviction or acquit- tal. In cases of dispute, parol evidence is admissible to prove (what the record cannot sufficiently show) that the offenses were or w^ere not identical. Any person present at the former trial, as well as the trial judge, or a juror, may be called to establish the identity of the parties or offenses. People vs. Smith, 258 111. 502; and see XI 111. Notes 1238, § 83. FORMER PLEADINGS See Answers. COMMON LAW Admissibility : — As Admissions: Former pleadings are admissible and their weight is to be determined from all the facts and circumstances under which they were made. Gardner vs. Meeker, 169 111. 40. An original declaration, not sworn to, and prepared by an attor- ney under a misapprehension of the facts, is not competent against FORMER PLEADINGS 569 the plaintiff to overthrow an amended declaration, and the evi- dence in support thereof. Party wouhl derive no benefit t'roiii his amendment if adverse parly were at liberty to use the tirst plead- ing as an admission to overthrow amended pleadings. Lambert vs. Bell, 169 App. 500. The admissions of a party to a fact, no matter how made, may be given in evidence against him. Common law pleadings are admissible in evidence. Cully vs. People, 73 App. 501; Soaps vs. Eichberg, 42 App. 375. So a plea in the record, although no evidence is otfered under it, may be taken as an admission by the party pleading it. West Chi. St. Ey. Co. vs. Loewe, 58 App. 606; Cf., Stuart vs. Harris, 69 App. 668. But a plea of set-off and a copy of account, filed by defendant to a declaration in another suit, are not admissible in evidence as an admission of defendant, without introduction of declaration to which tiiey were filed. Gardu'er vs. Meeker, 169 111. 40; Byrne vs. Byrne, 47 111. 507. — To Show Former Suit Fending: Files are inadmissible where no oft'er is made to prove cause of action was the same. Armstrong vs. Crilly, 152 111. 646. — To Show Former AdjiteUceiUon: The pleadings in a former action are admissible for purpose of determining identity of point determined in former action. Henry Sons Co. vs. Mahoney, 97 App. 313. But AVhere a trial is had upon an objection to- report of a com- mission of surveys to establish corners and disputed lines, and a finding against the correctness of such report, which is set aside and a new commission appointed, and objections are filed to tiie second report, on second trial it is error to admit in evidence the verdict of the jury and all the papers and proceedings in the first trial, even though both reports fix the corners and lines substan- tially the same. Atkins vs. Huston, 106 111. 492. Authentication : All files offered must be authenticated. Micheals vs. People, 208 111. 603. Lost Pleading: Parol proof of contents of lost pleading is admissible. Mevpr vs. Purcell, 214 111. 62. CHANCERY Admissibility and Weight: — Unsworn Origincd Bill: An unsworn bill drawn by an attor- ney under a misapprehension of the facts, which bill has been sup- erseded by an amended bill, is not admissible to prove admissions therein contained, alleged to be in contradiction of amended bill. Weniger vs. Bollenbaoh, 180 111. 222. — Original Bill Where Decree Offered: The pleadings upon which a decree, introduced in evidence by plaintiff, is based, and an order allowing persons to intervene as plaintiffs, with one allow- ing an amendment, are admissible in behalf of defendant, espe- cially as the pleadings are part of decree which plaintiff had of- fered. G. W. Tel. Co. vs. Mears, 154 111. 437. 570 FORMER TESTIMONY — Bill Not Filed: Where it appears that, when a bill in chan- cery was partly drawn, a jurat was prepared and sworn to by com- plainant, and attorney afterwards completed same, but it was never tiled, and complainant testified he did not know its con- tents, it was held that it the bill was admissible in evidence against the complainant, it was of but little weight. Barnhani \s. Roberts, 70 111. 19. — Answer to Creditor's Bill: The answer of a defendant to a creditor's bill, to discover property fraudulently concealed and disposed of to hinder and delay creditors, by an express provision of the statute, cannot be read in evidence against such defendant on indictment for the fraud. Mitchell vs. Byrne, 67 111. 522. — Unsworn Answer: An answer filed by defendants is legiti- mate evidence to be considered by the court, whether it was sworn to or not, and it matters not that it was withdrawal from the files when a second aji^ver was filed. It is like a letter or other state- ments in writing admitting a fact. 'Ds^i^h vs. Engleback, 109 111. 267 ; McNail vs. Welch, 26 App. 482. The statements in a bill in chancery, not sworn to by complain- ant, but signed by his counsel, are not admissible as evidence of his admissions, in another proceeding. They will rather be regarded as the suggestions or statements of his counsel. Miller vs. Chrisniau, 25 111. 269. Unsworn answer is admissible, but is feeble evidence, in another suit. Schmisseur vs. Beatrie, 147 111. 210; Siegel Cooper vs. Colby, 61 App. 315. — Sworn A}iswers to Amended Bill: If complainant, after the coming in of sworn answers, dismissed his bill, and then files an- other setting up substantially the same grounds for relief as in the former one, but waiving answer under oath, such sworn answers filed in the former suit will remain evidence, and complainant can have no decree under his second bill until such sworn answers are overcome by a preponderance of the evidence. Mey vs. "Gulliman, 105 111. 272. — Stipulations: The stipulation of facts upon which a trial is had, is not admissible in second trial, if objected to by either party. EigdoTi vs. Moore, 242 111. 256; City of Alton vs. Foster, 207 HI. 150 ; Town of Carthage vs. Buckner, 8 App. 152 ; Hardin vs. For- sytbe, 99 111. 312; Thomas vs. Adams, 59 111. 223. FORMER TESTIMONY See Affidavits for Continuance, Coroner's Inquest, Deposi- tions, Impeachment, Stipulation. Deceased Witness: Civil Actions: Testimony given in evidence on a former trial of the same action, or a former action involving the same issues between the same parties, is admissible in a subsequent trial, if it be established that the witness who gave such testimony is dead, but FORMER TESTIMONY 571 it is essential that the parties in the subsequent action be the same in interest. London Guaranty Co. vs. Cereal Co., L'^l 111. lL'3; Molnturff vs. Insur- ance Co., 248 111. 91'; Pratt vs. Kondig, 128 111. 293; Wade vs. King, 19 111. 301; Levine vs. Carroll, 121 App. 105; XII 111. Notes 533, §455. Parties must be substantially the same, or privies in blood, in law or in estate. Mclnturff vs. Insurance Co., 248 111. 92, A mere nominal ehange of parties is of no consequence, provided the parties in the second action are so privy in interest with those on the former trial that tlie same motive and need for cross exam- ination existed. London Guaranty Co. vs. Cereal Co., 251 111. 123. The inclusion of privies in the rule cannot extend the rule so as to render admissible in a sultsequent action between one of the parties in a former action and one in privity with that party in the former suit, the testimony of deceased witnesses given in the for- mer action. London Guaranty Co., vs. Cereal Co., 251 111. 123. Testimony in a criminal prosecution not admissible in subse- quent civil suit though witness be dead. Mclnturff vs. Ins. Co., 248 111. 92. As a general rule it is necessary that the person against whom the evidence is to be given had the right and opportunity to cross examine the declarant when he was examined as a witness ; that the questions in issue were substantially the same in the first as in the second proceeding; that the proceeding, if civil, was be- tween the same parties or their representatives in interest. Mclnturff vs. Ins. Co., 248 111. 92. Right of cross examination on former trial is not the test of admis- sibility in subsequent suit. London Guaranty Oo. vs. Cereal Co., 251 111. 123; Mclnturff vs. Ins. Co., 248 111. 92. Evidence of a witness given at a former trial of a cause may be introchiced after the death of the witness, at the second trial, not- withstanding there was no cross examination of such witness, where the direct examination was erroneously excluded at the instance of the party objecting to admission of the evidence at the second trial. U. S. Ins. Co. vs. Burnett, 136 App. 187. — Criminal Trials: The former testimony of a witness since deceased is admissible in criminal case. Barnett vs. People, 54 111. 325. In criminal cases the same person must be accused on the same facts. Mclnturff vs. Ins. Co., 248 111. 92. Living Witnesses: — Insane Witnesses: Where a witness has become insane, as between same parties, it is competent to show what such witness testified to on former examination. Stout vs. Cook, 47 111. 530. — Ahsent Witness: (See Absent Witness.) 572 FORMER TESTIMONY — Witness Present at Trial: In no case may the former testi- mony of a witness who is present and testifies in the case, be allowed to be given in evidence except for purpose of contradiction. Such testimony cannot be ofPered because second examination is less satisfactory than first. Campbell vs. Campbell, 138 111. 612; Stout vs. Cook, 47 111. 530; XII III. Notes 533, § 457. (See Depositions.) What a party may have stated, although under oath as a wit- ness, is admissible as an admission, although compulsory. Miller vs. People, 216 111. 316; Divine vs. Stei)anek, 176 App. 61; Wheat vs. Summ.ers, 13 App. 444; Chase vs. Debolt, 7 111. 371. — Effect of Subsequent Incompetency of Witness: Where a party or witness testifying on a former trial, being then competent, has been rendered incompetent through the death of adverse party, his former testimony cannot be proven in subsequent suit. Trunkey vs. Heclstrom, 131 111. 204. — Admissions of Accuscel on a Former Trial: Admissions and statements made by accused when testifying as a witness in his own behalf, on a former trial, may be proven by the People on a sub- sequent trial, although he does not testify on latter trial. Admis- sions and statements made by him as a witness are competent to be received in evidence against him to the same extent as if the statements and admissions had been made by him out of court. That the minds of the .jury may be directed by such testimony to the fact that the defendant has a legal right to testify in the case on hearing, furnishes no reason for excluding his statements and admissions. Miller vs. People, 216 111. 309. — Secreted Witness: AVhere a witness is kept away by the ad- verse party, as between the same parties, it is competent to show what such witness testified to on the former hearing. Stout vs. Cook, 47 111. 530; Letcher vs. Norton, 5 111. 575. — Eight of Attorney to Testify: The practice of allowing coun- sel to enter upon the trial of a cause knowing that an important witness is ill and may not be able to be present, and in the midst of the trial, for the first time, to present the fact of the absence of such witness and then testify as to what such witness said upon former trial reading from his own abstract of such evidence, is one which court cannot approve or sustain. C. & A. R. R. Co. vs. Mayer, 91 App. 372. For Purpose of Impeachment: — Cross Examinaiio)i: On cross examination witness may be questioned as to certain statements made by him in his deposition, taken prior to trial, but not introduced in evidence. It is al- ways proper, for impeaching purposes, to show witness has made prior inconsistent or contradictory statements on material points. Warth vs. Loweustein, 219 Ill."222; Western M. & M. Co. vs. Bough- ton, 136 111. 317. Cross examination of witness as to statements at coroner's inquest is not restricted to proof of coroner's minutes contain- ing signed statements of witness. Briggs vs. People, 219 111. 330. FORMER TESTIMONY 573 Cross examination as to whether witness had made statements to certain effect in liis testimony at coroner's inquest, without first showing- he had been specially interrogated as to matter at inquest, or directed or given special opportunity to state all that was said and done at time of t)ccurrence, is improper. Larrauee vs. People, 222 111. 155. (See Contradiction and Sustain- ing Witness, Impeachment, Corkoboration.) — Direct Proof: If witness, in answering question as to what was his testimony on a former trial, neither directly alHrras nor denies ^ving the declarations spoken of, it is then competent for adversary to prove the affirmative, providing the fact or statement is relevant to matter in issue. Chi. City Ey. Co. vs. Mathewson, 212 111. 292; Kay vs. Bell, 24 111. 444; McLeroth vs. Magerstadt, 136 App. 3(51. Where attention of witness is specially called to parts of his former testimony, and given opportunity of explaining same, his former statements may be shown by the stenographic report of his evidence, when verified, only so far as it is contradictory of his testimony on the second trial. Other parts of his testimony to which his attention had not been called, cannot be shown in contradiction of his testimonv on second trial. Campliell vs. Campbell, 138 111. 612. To Show Fabrication: Where, on second trial, plaintiff, to prove his title to prop- erty in controversy, introduced a bill of sale purporting to have been made to him by purchaser of such property at mortgage sale thereof, it was proper for defendant to show that such bill of sale was not introduced on former trial, and thereby require explanation of plaintiff as to reason for failure to produce same at first trial. Hanford vs. Obrecht, 49 111. 146. Whole of: See Whot.e of Utterance. Mode of Proof: — Parol Evidence: The testimony, at a former trial, of a wit- ness since deceased, may be proven by any one who heard and re- membered the evidence. I. C. E. E. Co. vs. Ashline, 171 111. 313; K. & S. Ey. Co. vs. Horan, 131 111. 288; Eoth vs. Smith, 54 111. 431; Lougbry vs. Mail, 34 App. 523; Hutchinson vs. Corgan, 59 111. 70; XII 111. Notes 534, §459. Substance is proper and precise words need not be proven. Luetgert vs. Volker, 153 111. 385; Iglehart vs. Jemegan, 16 111. 513; Barnett vs. People, 54 111. 325; C. E. I. & P. Ey. Co. vs. Harmon, 17 App. 640; Barnett vs. People, 54 111. 325. — Depositions: Depositions are competent to prove former tes- timony. Goodrich vs. Hanson, 33 111. 499. — Bill of Exceptions: (See Bill op Exceptions.) — Stenographic Notes: (See Stenographers' Notes.) Certificates of Evidence: A certificate of evidence in chancery, being a part of the record for all purposes of the litigation, and for the support and preser- 574 FOOT PRINTS vation of the decree, may be read in evidence on a later trial of the same ease. While there is some analog between certificates of evidence in chancery and bills of exceptions at law, still they are governed by essentially different rules. Bills of exceptions are prepared merely for the purpose of presenting the proceedings and evidence at the trial for review on appeal or writ of error, and when that object is accomplished, they are functus officio. Not so, however, with certificates of evidence in chancery. They become a part of the record for all purposes. O 'Conner vs. Mahoney, 159 111. 69. Depositions : Depositions taken in a former suit between the same parties, involving the same questions, are admissible in evidence, where the questions are again presented for judicial decision, if the parties had an opportunity of testing the truth of the testimony. And this though the parties are not identical and although there may not be complete mutuality in respect to their relation to each other, or to the subject matter litigated if the same matter is in issue in both cases. Pratt vs. Kendio;, 128 111. 293; Wade vs. King, 19 111. 301; Levine vs. Carroll, 121 App. 105. FOOT PRINTS Competency and Weight: Evidence of foot-prints and their correspondence with the de- fendant's feet is competent, and, though "not by itself of any independent strength, is admissible with other proof as tending to make a case." Carlton vs. People, 150 111. 181 ; Dunn vs. People, 158 111. 586 ; People vs. Hannibal, 259 111. 512. FRAUD See Fraud and Deceit, Fraudulent Conveyances, Parol, Weight and Sufficiency, Cancellation of Instruments, Re- lease, Good Faith. PRESUMPTIONS AND BURDEN OF PROOF Presumptions : Fraud will not be presumed, but must be proven like any other fact, by clear and convincing evidence. Fraud is never presumed when transactions may fairly be reconciled with honesty and if the weight of the evidence is in favor of an honest motive, that con- clusion should always be adopted. McKennan vs. Miekleberry, 242 111. 117; Union Natl. Bank vs. State Bank, 168 111. 256; Kennedy vs. Kennedy, 194 111. 346; Mey vs. Gulliman, 105 111. 272; Wright vs. Grover, 27 111. 426; Mathias vs. Miller, 164 App. 113; XII 111. Notes 760, §87. (Exception: See Fiduciary Relations.) FRAUD 575 Burden of Proof: — In General: Fraud must be proven by a preponderance of the evidence and the burden of proof rests upon the party alleg- ing it. Dick vs. Albeis, 24.! ]11. 231; Off vs. Jack, 204 Til. 79; Dexter vs. McAfee, 163 111. 508; Mortimer vs. McMullen, 202 111. 413; Mc- Ginn is vs. Storrs, 152 Apj). 4r)4. — Charge in Negative Form: The effect of a negative form of issue in cases involving a charge of fraud is not to relieve the party making such charge of the burden of introducing any proof, but in such case and particularly where the facts lie wholly within the knowledge of the adverse party, evidence which ren- ders the existence of the negative probable, may be sufficient, in the absence of proof to the contrary. Prentice vs. Crane, 234 111. 302; People vs. Templeman, 169 App. 287. — Between Relatives: The fact that the alleged fraudulent transaction occurs between relatives will not change the rule as to the burden of proof, the relationship being merely a circum- stance which may excite suspicion, but will not, of itself, amount to proof of fraud. Amer. H. & D. Co. vs. Hall, 208 111. 597; Schroeder vs. Walsh, 120 111. 403; Wightman vs. Hart, 37 111. 123. — Fiduciary Relatiotis: When such relations are proven, the presumption is raised against the validity of the Contract, and casts upon party desiring to uphold it the burden of proving affirmatively that such contract is not against equity and good conscience, thereby overcoming the jiresumption of fraud. Beech vs. Wilton, 244 111. "413 ; Fish vs. Fish, 235 111. 396 ; Walker vs. Shepard, 210 lU. 100. — Parent and Child: But the rule does not apply when the parent makes a will or other provision for his child. To hold that such transactions are presumptively fraudulent would be to reverse the legal basis of all presumptions, and thus cast upon the child the burden of proving by clear and convincing evidence good faith and absence of undue influence. Sear vs. Vaughn, 230 111. 572 ; Bishop vs. Hilliard, 227 111. 382. ADMISSIBILITY OF EVIDENCE Parol: Where Contract in Writing: Misrepresentations made to induce execution of contract may be proven by parol evidence, notwithstanding the terms of the contract may be reduced to writing. In such case, the action is not upon the contract, but upon the representations and deceit. Fraud is not extinguished by the covenants. Grubb vs. Milan, 249 111. 456; Antle vs. Sexton, 137 111. 410; Van- Buskirk vs. Day, 32 lU. 260. In action at law, fraud in the execution of a deed may be given in evidence, as that through mis-reading or the substitution of one paper for another, or by other device and trickery, he was induced to seal it, believing, at the time, that he was sealing something else, and it may also be proven that what purports to be a deed is in truth not a deed, but a forged instrument ; but it cannot be proven that the transactions which preceded and induced the execution were fraudulent. Where a party knowingly and voluntarily signs 576 FRAUD a deed, although it was in violation of his duty and the law, or be induced thereto by the fraudulent contrivances of others, yet if it be such, upon its face, as will convey title, it can only be impeached and set aside, and parol evidence be received for that purpose, in a court of ecjuity. Widnett vs. linrlbut, 115 111. 403. Acts and Declarations: Prior and contemporaneous conversations are admissible and may be taken into consideration by the jury for the purpose of ascertaining whether the contract was procured by fraud or through false pretenses. VanBuskirk vs. Day, 32 111. 260. Parol evidence of the circumstances connected with the transac- tion and the declared intention of the parties in executing a writ- ten agreement is admissible for the purpose of showing fraud, accident or mistake. Race vs. Weston, 86 111. 91. Verbal statements of vendor made to the purchaser before sale as to nature, character, capability and value are admissible in evi- dence, — not for purpose of varying written contract, Init to show fraud. Hicks vs. Stevens, 121 111. 186. And likewise, the intent to purchase goods and not pay for them may ])e found from the acts of purchaser after the sale. Hanchett vs. Mansfield, 16 App. 407. Circumstantial Evidence : — In General: Proof of fraud may be made by facts and cir- cumstances which raise the inference tliat it was perpetrated. McLeroth vs. Magerstadt, 136 App. 361; Swift vs. Yanaway, 153 111. 197; Bear vs. Bear, 145 111. 21; Straus vs. Kramort, 56 111. 254; Reed vs. Noxon, 48 111. 323; Maxwell vs. McWilliams, 145 App. 155; XII 111. Notes 762, § 113. i Fraud may be inferred from facts and circumstances shown, and inferences deducible therefrom based upon probabilities of human conduct. Fabian vs. Traeger, 215 111. 220. Fraud is rarely established by direct and positive evidence. Like all other facts, it may l^e proved by circumstances which convince the mind of its existence. Cohen vs. Friedman, 259 111. 416; Schwarz vs. Reznick, 257 111. 479. Fraud may be proven by circumstances from the existence of which the inference of fraud is natural and irresistible. BuDock vs. Narriot, 49 111. 62. Fraud may be inferred from circumstances, as a conclusive pre- sumption of law, or as a prima facie or rebuttable presumption of law, or as an argumentative conclusion of fact. Hinton vs. Knott, 134 App. 294. In the investigation of questions of fraud, the court should be liberal in the admission of evidence tending to disclose the trae nature of the transaction. Circumstances apparently trivial in themselves may, in connection with other facts, afford strong evi- dence. Vigus vs. O'Bannon, 118 111. 334; Hazelton vs. Carolus, 132 App. 512; McLeroth vs. Magerstadt, 136 App. 361. FRAUD 577 Fraud may be proven by circiiinstanees, but it is not thereby established unk^ss the eirc.u instances proven are so strong as to produce a eomietion tliat tlie cliarge of fraud is true. Mortimer vs. McMullen, 202 111. 413; Bryant vs. Simoncau, 51 III. 324. — Financial CondHion: It is proper on an alleged sale to de- fraud cretlitors to prove the alleged purchaser's financial condi- tion about the time of the transaction. Fabian vs. Treager, 215 111. 220; Kingman vs. Reineimer, 166 111. 208. — Inadiquacy of Vonsidi ration: While mere inadequacy of price is not, per sc, a ground for setting ayide a transfer of prop- erty, yet it may be so gross and palpable as to amount, in itself, to proof of fraud; and this, in connection with proof of imposi- tion and misrepresentation on the part of the purchaser and his agents, will be sufficient, in a court of equity, to characterize the transaction as frauciulent. Witherwax vs. Eiddle, 121 111. 140; Eeed vs. Peterson, 91 111. 288; Lloyd vs. Highbee, 25 111. 494. — CJiaractcr and Reputation: In actions of this character, evi- dence of general business integrity is not admissible to repel pre- sumption of fraud. McBean vs. Fox, 1 App. 177; Ellwood vs. Walter, 103 App. 219. — Interest in Transaction: "It would be an unsafe rule to adopt that it is sufficient proof of one's commission of a fraudu- lent act that it was for his interest, and that of no one else, to have the act done." Hanna vs. Eayburn, 84 111. 533. — Statements to Commercial Agency: False statements made to a commercial agency, with view of obtaining credit, are com- petent on question of fraud, though party making them did not know party acting on them was a subscriber. Moyer vs. Lederer, 50 App. 94. But evidence of the rating of a merchant by a commercial agency, not shown to have been authorized by him is inadmissible. Henderson vs. Miller, 86 App. 232. — Absence of Explanation: Where fraud is alleged, and proof is offered to raise an inference thereof, the fact that no explanation of the transactions is offered by party charged, is an additional circumstance to be considered, and from which inferences may be drawn. Schumaeker vs. Bell, 164 111. 181.' — Other Fraudnlent Acts: Other acts of fraud are admissible in evidence to prove the fraudulent acts charged, where the evi- dence shows that the two acts were committed in pursuance of a common purpose to defraud. Lookwood vs. Doane, 107 HI. 235; Gray vs. John, 35 111. 222; Heut- macher vs. Lowman, 66 App. 448. So complaints of others to party charged, in relation to sim- ilar transactions are competent to show knowledge. Allen vs. iMillison, 72 111. 201. But if such other acts are distinct and not connected with the fraud they were intended to prove, they are inadmissible, though of a similar kind. Henderson vs. Miller, 36 App. 232; Burroughs vs. Comegys, 17 App. 653. Ev. — a 7 578 FRAUD A fraudulent conveyance of chattels to one person is irrelevent on an issue of fraud, to show that another and different transac- tion with other parties is alike fraudulent. Simpkins vs. Berger, 2 App. 101. Where fraud is the basis of a defense to a written instrument, it is not competent in support thereof to show a like fraud com- mitted upon another, not connected with the suit, where it does not appear that the facts and circumstances are admitted and intent to defraud denied, and where there is no offer to show a general scheme or plan to defraud the public by means alleged to have been practiced in the particular instance. Buckley vs. Acme Pood Co., 113 App. 210. Reliance Upon Representations: Where a party, ignorant of the real facts, and having no ready means of information, makes a purchase or enters into a trans- action, as to the subject matter of which representations have been made which are material, the law will presume that, as a matter of fact, he relied upon them. Hicks \'S. Stevens, 121 111. 186. And he may so testify. Haldenian vs. Schuli, 109 App. 259 ; Thorne vs. Prentiss, 83 111. 99, But plaintiff need not prove he did not know statements to be false, as this would require; him to prove a negative. Defendant must show that plaintiff knew the facts. Hiner vs. Eichter, 51 111. 299. Opinions of Witnesses: Opinions or conclusions of witness that misrepresentations were made are incompetent. German Ins. Co. vs. Gruner, 112 111. 68. WEIGHT AND SUFFICIENCY. Preponderance : It is sufficient if the fraud alleged be established by a prepon- derance of the evidence. Mortimer vs. McMullen, 202 111. 413; Merchants Bank vs. Lyon, 185 111. 313; Sehroeder vs. Walsh, 120 111. 403; Kingman vs. Eeineimer, 166 111. 208; Amer. H. & D. Co. vs. Hall, 110 App. 463; XII 111. Notes 761, § 112. But must be proven like any other fact, by clear and convinc ing evidence. Something more than mere suspicion is required to prove allegations of fraud. The evidence must be clear and cogent, and must leave the mind well satisfied that the allegations are true. McKennan vs. Mickleberry, 242 111. 117; Union Natl. Bank vs. State Bank, 168 111. 519; Shinn vs. Shinn, 91 111. 477; Maginnis vs. Storrs, 152 App. 454. Doubt May Remain: When circumstances proven are so strong as to produce a con- viction of the truth of the charge, although there may be some doubt, fraud is proven. This is the extent of the rule that fraud must be proven. Sehroeder vs. Walsh, 120 111. 403; Bryant vs. Simoneau, 51 111. 324; Orient Ins. Co. vs. Weaver, 22 App. 122; Eames vs. Morgan, 37 111. 260. FRAUD AND DECEIT 579 FRAUD AND DECEIT See Fraud, Fraudulent Conveyances, Weight and Suffi- ciency, Parol. Elements : The elements of the cause of action are representation, falsity, scienter, deception and injury. Foster vs. 01)beiTeieh. li.Ho" 111. 525; Schwabacher vs. Eiddle, 99 111. 343. Admissibility of Evidence: — thtintiff May Stale as to Reliance: Plaintiff may testify that he believed and relied upon the alleged misrepresentations of defendant. Kearney vs. Daviii, 1(32 App. 37; Haldman vs. Schuh, 109 App. 259; Thorne vs. Prentiss, 83 111. 99. — Pamphlet: A pamphlet published by defendant containing representations is competent in action for fraud and deceit where such pamphlet in part induced plaintiff's conduct. Prout vs. Martin, 1(30 App. 11. — Circumstantial Evidence: Direct and positive proof of knowl- edge is not required. Circumstantial evidence is competent as to whether defendant knew his representations to be false. Hiuer vs. Kichter, 51 111. 299; Jacobs vs. Marks, 83 App. 156. — Value of Land: In an action of deceit to recover the amount of an encumlirance upon land falsely represented to be unin- cumbered, proof of value of land is competent. Hahl vs. Brooks, 213 lU. 134. — Representations of Third Persons: In suit against the ven- dor of land to recover on ground of false and fraudulent repre- sentations made by him as to nature and quality of land, when vendor had never seen the land, it is competent for him to prove that the person from whom he purchased made similar representa- tions to him, as tending to show the statements made by him were not recklessly made, and without any ground for belief in their tnith. Merwin vs. Arbnckle, 81 111. 501. Weight and Sufficiency: — Scienter: It is necessary to aver and prove scienter. In such case it is not enough the representations made by defendant were false, — they must have been known by him to be_ false. They must have been knowinglv made with intent to deceive. Cantwell vs. Harding," 249 111. 354 ; Foster vs. Oberreich, 230 111. 525 ; Holdom vs. Ayer, 110 111. 448. The fraud and scienter constitute the ground of action. Mervin vs. Arbuckle, 81 111. 501; Hiner vs. Eichter, 51 111. 299; Wheeler vs. Eandall, 48 111. 182. The knowledge of the falsity of the representations made must rest with party making them and he must use means to deceive. Cantweli vs. Harding', 249 HI. 354; Tone vs. Wilson, 81 111. 529; Weatherford vs. Fishback, 4 111. 170. Proof that the defendant knew that his representations were false at the time he made them need not be made where it appears that defendant stated a material fact and asserted knowledge thereof, upon which plaintiff relied. Crane vs. Sehaefer, 140 App. 647. 580 FRAUDULENT CONVEYANCES In action of tort for a false warranty tlie scienter need not be averred and if charged, need not be proven. Wallace vs. Tanner, 118 App. 639. — Allegations Divisible: The allegations made in a declaration in action of deceit are regarded as divisible and the plaintiff may succeed, if he can prove any of them which of itself makes a cause of action ; and may likewise succeed although he may not prove the misrepresentations precisely as laid, nor any of the different forms as alleged. All that is required is proof substantially of the material allegations. Crane vs. Schaefer, 140 App. 647. — Plaintiff's Knowledge: Plaintiff is not required to prove that he did not know the statements of vendor to be false. Such proof must be made by defendant, if he seeks to defeat a recovery upon the ground that plaintiff knew the facts, and was not, therefore, deceived in the purchase. Hiner vs. Eichter, 51 111. 299. — Rescission of Contract: It is not necessary to show effort to rescind the contract. Cantwell vs. Harding, 249 111. 354; Seltz vs. Springer, 236 111. 276. — Preponderance Sufficient: Plaintiff need only prove the material allegations of his declaration by a preponderance of the evidence. Crane vs. Schaefer, 140 App. 647; Budlong vs. Cunningham, 11 App. 29. FRAUDULENT CONVEYANCES See Fraud, Fraud and Deceit, Parol. Presumptions : — In General: Fraud will not be presumed, but must be proven like any other fact, by clear and convincing evidence. "Mathews vs. Rei'nhardt, 149 111. 635; Schroeder vs. Walsh, 120 111. 403; Mey vs. Giilliman, 105 111. 272; XII 111. Notes 813, §236. It is a presumption of law that a conveyance is made in good faith. O'Neal vs. Boone, 82 111. 589. All transactions are presumed to be fair and honest, until con- trary is proven. Amer. H. & D. Co. vs. Hall, 208 111. 597; Merchants Natl. Bank vs. Lyon, 185 111. 343. — Honest Motive: Fraud is never presumed and when trans- actions may fairly be reconciled with honesty and the weight of the evidence is in favor of any honest motive, that conclusion should always be adopted. McKennan vs. Miekleberry, 242 111. 117; Union Natl. Bank vs. State Bank, 168 111. 519; Kennedy vs. Kennedy, 194 111. 346; Mey vs. Gulliman, 105 111. 272. — Eelationship: The fact that the alleged fraudulent trans- action occurs between relatives will not change the rule as to bur- den of proof, the relationship being merely a circumstance which FRAUDULENT CONVEYANCES 581 may excite suspicion but will not, of itself, amount to proof of fraud. Amer. H. & D. Co. vs. Hall, 208 111. 597; Schioeder vs. Walsh, 120 111. 403; Young vs. Ward, 16 App. 593. — Preference of Creditor: No presumption of fraud arises from preferring one creditor to another. Peoria Natl. Bank vs. Khea, 155 111. 4:!4; Dueher Watch Co. vs. Young, 155 111. 22G; 8ehroeder vs. Walsh, 120 111. 403; Ger.-Amer. Bank vs. Hoffman, 120 App. 303; Meaeham vs. liahn Co., 46 App. 144. And this rule applies to corporations. Blair vs. 111. Steel Co., 159 111. 350. And when a party contends that the indebtedness which mort-' gage was given to secure is not hona fide, burden is upon him to prove it. Coates vs. Miller, 99 App. 227. Where creditor receives property in payment of debt, and other creditors assail the transaction, alleging secret trust, burden of proof rests upon such attacking creditors. Wood vs. Clark, 121 111. 359. — Inadequacy of Consideration: Although mere inadequacy of price is not per se ground for setting aside a transfer of prop- ertv, yet it may be so gross and palpable as to amount, in itself, to proof of fraud. Sehwarz vs. Reznick, 257 111. 479 ; Mathews vs. Eeinhardt, 149 111. 635 ; Zich vs. Guebert, 142 111. 154; Eeed vs. Peterson, 91 111. 288; Bay vs. Cook, 31 111. 336; Farwell vs. Norton, 77 App. 685. — Existence of Debts: It will not be presumed, in absence of proof, that the debts existed at time of transaction. Bittingcr vs. Kastcn, 111 111. 260; Tunison vs. Chamblin, 88 111. 378; Eogers vs. Dimon, 106 App. 201. — Selling Price: It will be presumed that the price paid was full value of the property. Jewett vs. Cook, 81 111. 260; Beach vs. Miller, 23 App. 151. — Voluntarij Conveyance: Voluntary conveyance by party in- debted at time, raises presumption of fraudulent intent. State Bank vs. Barnett, 250 111. 312; Hank vs. A^anlngen, 196 111. 20; Moritz vs. Hoffman, 35 111. 553. But to raise presumption, it must be sho^^^l grantor did not retain sufficient assets to pay debts. Denard vs. Eogers, 203 111. 464; Falloon vs. Mclntyre, 118 111. 292; Bittinger vs. Kasten, 111 111. 260. f Burden of Proof: — Fraud: j\Iust be proven by a preponderance of the evidence, and burden of proof is upon party alleging it. Amer. H. & D. Co. vs. Hall, 208 111. 597; Merchants Bank vs. Lyon, 185 111. 343; Wood vs. Clark, 121 111. 359; Bear vs. Bear, 145 111. 21; Maginnis vs. Storrs, 152 App. 454; XII 111. Notes 813, § 236. A mere doubt of the fairness of the transaction is not enough to impeach it. Waterman vs. Donnolson, 43 111. 29. Burden of overcoming presumption of fraud arising from vol- untary conveyance by one indebted at time, is on party making such conveyance. Kennard vs. Curran, 239 111. 122; Dillman vs. Nadelhofer, 162 111. 625. 582 FRAUDITLENT CONVEYANCES — Relationship as Creditor: To impeach a conveyance, com- plainant must aver and prove he was a creditor at the time. Clayton vs. Claytou, 250 111. 433; State Bank vs. Barnett, 250 111, 312; Bittinger vs. Kasten, 111 111. 260; Moritz vs. Hoffman, 35 111. 553; I^amont vs. Began, 96 App. 359; Johnston vs. Hirschberg, 85 App. 47. A judgment rendered a year after conveyance is not admissible. Martin \s. Dunr-an, 181711. 120. — Grantee of Fraudulent Grantor: Where it is shown that one claims title under a grantee whose title is fraudulent the burden is on him to show that he purchased in good faith and without notice of the fraud, Lyon vs. Moore, 259 111. 23 ; Eoseman vs. Miller, 84 111. 297, Admissibility of Evidence: — In General: Intent to defraud creditors by the conveyance of property may be ascertained by inference, from circumstances, as a conclusive presumption of law, or as a prima facie presump- tion of law, or as an argumentative conclusion of fact, according to the facts and circumstances of each case, Higgins vs. Higgins, 219 111. 146; Hughes vs. Noyes, 171 111. 575; Keeroofs it is advised should not be taken in the hearing of the jury. Starkey vs. People, 17 111. 16; Barnett vs. People, 54 lU. 323. When dying declarations are admitted in evidence, the prelim- inary proof must also then be given to the jury. Tracy vs. People, 97 111. 101; North vs. People, 139 111. 81; Starkey vs. People, 17 111. 16; Nordgren vs. People, 211 111. 425. — Different Statements: Prosecution is not restricted to proof of declarations made on one occasion only. Dunn vs. People, 172 111. 582. — In Writing: If in writing, must be produced or its absence accounted for. Dunn vs. People, 172 111. 582. ; — Exculpatory: Dying declarations are admissible in behalf of accused. People vs. Hotz, 261 111. 239, Cf.; Moeck vs. People, 100 111. 242; Adams vs. People, 47 111. 376. A statement of a person mortally wounded, that he did no wrong, though not a dying declaration, is admissible against accused as part of the res gestae, when made in his presence and hearing. Healy vs. People, 163 111. 372. — Impeachment: Dying declarations are hearsay evidence and may be impeached by any of the modes by which the evidence of the declarant could have been impeached had he or she been alive and testifying in open court. Nordgren vs. People, 211 111. 425; Dunn vs. People, 172 111. 582; Leigh vs. People, 113 111. 372. Dying declarations may be impeached by proof of contradic- tory statements on material questions, though such contradictory statements were not made in extremis. Dunn vs. People, 172 111. 582. — Taking hij Jury: Permitting a written dying declaration to be taken by the jury upon retirement is an abuse of the court's discretion, where portions of it have been held inadmissible. Dunn vs. People, 172 111. 582. — Weight: The weight to be given to a djang declaration is for the jury. They are competent to the same extent as if made under the sanction of an oath, from necessity. But is error to instruct the jury that they are entitled to the same weight as if the declarant had testified as a witness. People vs. Warren, 259 Til. 213; Nordgren vs. People, 211 111. 425; Cf. Brom vs. People, 216 111. 148. Conspiracy: Persons who conspire together to do an unlawful act which includes the assault upon the person of another, must be presumed to have intended to use whatever means may appear to be neces- sary to overcome such person's resistance, in order to enable them 636 HOMICIDE to carry out their desii^n, and if one of their number kills such person in the assault upon him, all the conspirators are giiilty of murder. People vs. Gukowski, 250 lU. 231. Where accused is present and commits a crime with his own hand or aids or abets another in its commission, he may, in either case, be considered as expressly assenting thereto. Lamb vs. People, 96 111. 73. The defendant may be guilty of murder though he neither took part in the killing or assented to any arrangement having for its object the death of deceased. Brennan vs. People, 15 111. 511. Where parties are jointly indicted for murder, and the evidence shows that one did the killing in the other's presence, to justify the conviction of the latter, it must appear, beyond a reasonable doubt, that he aided, abetted or assistecl in the killing. Jones vs. People, 166 111. 264. Where two parties are alone present at the time of the killing of another, and but one does the killing, and the other does not aid, abet or assist in the killing, but afterwards they both, with guilty intent, conceal the fact of the crime, the one not participating in the crime is only guilty as an accessory after the fact, and is not guilty of murder. People vs. White, 81 HI. 333, On trial of clerk of political club election for murder of candi- date who he claimed had made an assault upon him, evidence that candidate and supporters had formed conspiracy to oust regularly appointed judge of election is admissible. Eoberts vs. People, 226 111. 296. No person can be held liable for a homicide unless the act was actually or constructively committed by him; and in order to be his act, it must be committed by his ovm hand or by some one acting in concert with him, or in furtherance of a common design or purpose. Where the criminal liability arises from the act of another, it must appear that the act w^as done in furtherance of the common design or in prosecution of the common purpose for which the parties were assembled or conspired together. Butler vs. People, 125 111. 641. Officers and Official Character: Before the prosecution can take advantage of the official char- acter of deceased for the purpose of characterizing the acts of defendant as murder, it is essential that it be shown, beyond a rea- sonable doubt, that defendant had knowledge of the official char- acter of deceased. People vs. Bissett, 246 111. 516; Eafferty vs. People, 69 111. 111. Ordinance of municipality, defining duties of officers, is inad- missible where deceased was not, at the time of killing, clothed as a police officer or possessed of any badge or insignia of his official character displayed upon or about him at the time of the killing, and it is not shown that accused knew of the official character of deceased. People vs. Bissett, 246 HI. 516. HOMICIDE 637 On the trial of a peace officer for murder, proof of his official duties is inadmissible as they are defined by public law. The official character of the officer is pertinent in determining the legal relations and duties of the person killed to the person killing, with respect to each other, and thus characterize their acts at time of the killing, and defendant has a right to have the juiy properly instructed on tliat question. Lynn vs. People, 170 111. 527. Evidence of the official character of the person killed and of the capacity in which he wtis acting may be admitted without any al- legation to that effect in the indictment. North vs. People, 139 111. 81. Evidence tending to show that an officer was beating defendant over the head with his billy, before the latter fired the fatal shot, tends not only to reduce the homicide from murder to manslaugh- ter, but also to prove that defendant fired such shot in necessary self-defense although not necessarily conclusive for either pur- pose. North vs. People, 139 111. 81. "SYarrant is admissible, though defective, to show authority of dGC63SGQ Palmer vs. People, 138 111. 356. The illegality of the warrant may be shown by defendant to nega- tive malice on his part. If the process is shown to be void, this will reduce the homicide to manslaughter unless proof shows express Eafferty vs. People, 69 111. 111. Aiding, abetting or assisting is affirmative in its character. It is not sufficient that there is a mere negative acquiescence not in any way made known to the principal malefactor. So, if one of two persons, in resisting arrest for crime, shoots the officer, in the presence of the other, such other person will not be responsible for such shooting, unless he combine with the other party or connive at the shooting. White vs. People, 139 111. 143. Wliere a person makes a threat that he will use a revolver upon one whom he supposes to be a constable, in case he attempts his arrest, showing a purpose to resist arrest by any officer, it will be competent evidence against him on his trial for the subsequent killing of a constable while attempting to arrest him, as tending to show malice and evil intention on his part, and to give character to his act in killing deceased, whether the latter knew of his threats or not. Palmer vs. People, 138 111. 356. Where the defense is that at the time of the killing, deceased was assisting an officer in illegally arresting defendant, the burden of proving that fact is on defendant. Eafferty vs. People, 72 111. 37. On the trial of one for murder of a constable while attempting to arrest defendant on a bastardy warrant having no seal attached thereto, when the theory of the defense was that the killing was in self-defense, and in resistance of a supposed hostile movement of deceased when the latter stretched out his arm, the warrant, al- 638 HOMICIDE though technically defective in the matter of a seal, is admissible in evidence for the prosecution to show why deceased attempted to put his hand upon defendant, and that the movement of deceased was made for a lawful purpose and under authority of a writ. Palmei- \s. People, 138 111. 356. Articles in Evidence: Physical objects which form a part of or serve to illustrate the transaction or occurrence, which is the subject of judicial investigation, may be displayed before the jury and formally introduced in evidence. People vs. Morris, 254 111. 559. ;tMn:j _ '■>[ So bed, mattress, sheets, pillows and other bed clothing per- taining to the bed in the room where deceased was murdered, together with an apron found in the room, and defendant's over- coat, may be displayed to the jury in the course of the trial and introduced in evidence. Painter vs. People, 147 111. 444. And buggy in wdiich deceased was shot. Henry vs. People, 198 111. 162. In prosecution for murder by throwing bomb, other bombs are not admissible in evidence on issue of malice and intent of maker, but are competent to prove that bomb thrown was made by party charged to have made same. Spies vs. People, 122 111. 1. A vial and box containing poison were held properly admis- sible in evidence. Siebert vs. People, 143 111. 571. And bullet removed from the body of deceased, and a revol- ver belonging to accused, admissible. McCoy vs. People, 175 111. 224. Blood-stained clothing, where there is question as to effect of powder burns upon clothing. People vs. Morris, 254 111. 559. Such objects, in the discretion of the court, may be taken to the jury room upon their retirement. People vs. Morris, 254 111. 559; McCoy vs. People, 175 111. 224; Painter vs. People, 147 111. 444. Separate Offenses: Where proof tends to establish crime charged, or where the two are inseparable, such evidence is admissible. Painter vs. People, 147 111. 444; Jennings vs. People 252 III. 534. One criminal act may be shown as evidence of another, where such a connection between them exists in the mind of the actor as links them together for some purpose wdiich he intended to ac- complish. When facts and circumstances amount to proof of an- other crime than that charged, and there is ground to believe that the crime charged grew out of it, or was in any way caused by it, such facts and circumstances may be proved to show the quo animo of the accused. Henry vs. People, 198 111. 162. Evidence of the commission of other crimes is inadmissible as a substantive fact, but when not separable from a competent con- HOMICIDE 639 fession same may be admitted under cautionary directions from the court. Gore vs. People, 162 111. 259. Evidence is admissible to prove the killing by accused of a person not named in the indictment, and an assault by him upon another person not named, wliere such evidence is inseparable from that of the killing of the person named, and relates to the same transaction. Hiekam vs. People, 137 111. 75. Evidence that about a half an hour after the shooting of de- ceased by defendant in presence of his family, the defendant com- mitted the crime of rape upon wife of deceased, is incompetent as not being part of the res gestae, nor tending to explain de- fendant's motive. Farris vs. People, 129 111. 521. Proof that accused on murder trial, just before the crime charged, had a tight with another person, is inadmissible where deceased had' no knowledge of such fight. Brom vs. People, 216 111. 148. Admissions and Confessions: — ConstitntioTud Privilege: Admitting in evidence state- ments made by accused, after being warned that whatever he said might be used against him, is not error as being a violation of the statutory guaranty against a person being compelled to testify against "himself particularly where none of the statements are in the nature of an admission or confession of guilt as to the crime charged, but onlv explanation of certain of his acts. Hoch vs. People, 219 111. 265. Admissions and statements made by accused when testifying as a witness in his own behalf on a prior hearing, may be proven by the People on the subsequent trial, although the accused does not testify on the latter trial. Miller vs. People, 216 111. 309. Parol evidence is admissible to prove what one accused of crime voluntarily disclosed before the coroner's jury, if it is shown that his examination there was not reduced to writing. But such statements are inadmissible where he is under arrest and com- pelled to answer under oath, but if he testify voluntarily, his statements made while so testifying, though under arrest, are ad- DnissiniG. Lyons vs. People, 137 111. 602. Confessions by the accused of a crime other than that charged in the indictment, while not admissible as a substantive fact, when not separable from a competent confession, may go to the jury under cautionarv directions from the court. Gore vs. People, 162 111. 259. — Implied Confessions: Declarations or statements made in the presence of a party are received in evidence, not as evidence in themselves, but to understand what reply the party to be affected should make to them. Even if he make no reply, the statements are still admissible upon the principle that if a party is silent when he should have replied, the presumption of acquies- cence arises. "Where a statement is made either to a man or within 640 HOMICIDE his hearing that he is concerned in the commission of an act or crime and to which he returns no reply, the natural inference is that the imputation is well founded, or- he would have replied to it. Silence is tantamount to confession. Watt vs. People, 126 111. 9; Ackerson vs. People, 124 111. 563; Gannon vs. People, 127 111. 507. An admission or confession may be implied from the conduct of the party in remaining silent w4ien charged with crime, or with complicity therein, or when the statements are made by a third person in his presence affecting him, when the circumstances afford an opportunity to act or speak in reply and men similarly situated would naturally deny the imputed guilt, or make some explanation of the statement. Even if defendant makes no reply, the statement to him is admissible. People vs. Tielke, 259 111. 88. But accusation is not admissible if accused denies guilt, or re- frains from advice or fear. People vs. Pfanschmidt, 262 111. 411. It is competent for the People to show the circunistances of the pursuit and capture of the defendant after the homicide. Evidence of the conduct of the party either before or after being charged with the offense, is admissible not only as part of the res gestae, but as indicative of a guilty mind. So the acts of the accused by way of resisting arrest or preventing arrest may be shown, Jamieson vs. Peoi)le, 145 111. 357. With respect to all verbal admissions, they should be received with great caution, as that kind of evidence is subject to imper- fection and mistake, and such confessions must be shown to have been deliberately made. Marzen vs. People, 17.3 111. 43. — Co-Defendants and Conspirators: Declarations of a co-de- fendant, made directly after the fatal shot, are inadmissible in favor of the other defendant, whether they tend to implicate the former or excuse the latter. Crosby vs. People, 137 111. 325. Admissions and statements made out of court by one of two defendants, to the effect that he was present and saw his co- defendant do the shooting is admissible against the declarant as identifying him as one of the persons present at the shooting. MeUann vs. People, 226 111. 562. Where a number of persons act together or in concert, to chas- tise or beat certain other persons, and one of the persons attacked is killed, expressions and statements made by some of the assail- ants are properly admitted in evidence on the trial of one of them for murder, as characterizing the mission on which he was en- gaged at the time they were made. Lyons vs. People, 137 111. 602. A conspiracy being established, only the declarations of mem- bers in furtherance of same are admissible. Spies vs. People, 122 111. 1. On the separate trial of one who was jointly indicted with two others for the crime of murder, the statements and threats of the latter against deceased, made when one on trial was not present, HOMICIDE 641 were properly admitted in evideiiee, the testimony warranting the conclusion tliat tliey wei-e all acitiiig in concert in the prose- cution of a common design, and although temporarily separated, such separation being for the purpose of providing weapons and making preparations to carry their design into execution. Gardner vs. People, 4 111. 83. To bind all of the defendants by the incriminating statements of one, upon the theory that they were made in the presence of all, the evidence must show specitically each of the defendants was present when the statements were made. People vs. Barkus, 255 111. 516. — Whole of Admisswn: If a witness testifies to a part of a conversation, the party against whom it is offered is entitled to have all that was said on the same subject in that conversation. Tracy vs. People, 97 111. 101. So where prosecution interrogated offtcial reporter as to testi- mony of accused on former trial, defendant not testifying on sec- ond trial, the cross examination should not have been restricted to an inquiry whether the questions and answers thereto were fully stated by the reporter. Defendant was entitled to have the jury know all the statements he had made in the course of his examination on the former trial, touching the points or matters to which the questions and answers called, out by the prosecution related. Other questions and answers propounded to him upon the same examination which tended to explain, qualify, correct or in. any manner throw light on the matters touched upon by the questions and answers proven by the People were proper, being necessary to a full and accurate understanding of the statements or admis- sions sought to be proven. Miller vs. People, 216 111. 309. Where a police officer arresting accused was allowed to testify as to what was said by him after he was arrested, it is error to refuse to allow accused to give his version of the conversation. Briggs vs. People, 219 111. 330. Where a witness for accused has testified that deceased was advancing upon accused, who warned deceased not to follow him, it is improper to ask him, on cross examination, whether he said anything to that effect in his testimony at the coroner's inquest, without first showing that he had been specifically interrogated as to the matter at the inquest, or been directed or given oppor- tunity to state all that was said and done at the time of the affray. Larranee vs. People, 222 111. 155. — Value: A confession is not equivalent to a statement or admission of fact tending to prove gnilt. A confession, in its legal sense, means an acknowledgment of guilt. McCann vs. People, 226 111. 502; Michaels vs. People, 208 111. 603; Johnson vs. People, 197 111. 48. The value of confessions depends upon the circumstances under which they are made, and it is for the jury to say to what weight they are entitled. People vs. Gukowski, 250 111. 231. Ev. — 41 642 HOMICIDE The weight to be given to implied confessions is for the jury. People vs. Tielke, 259 111. 88. Statements of a witness as to verbal admissions of a party should be received by the jury with great caution, as that kind of evi- dence is subject to imperfection and mistake. It is only where the admissions are deliberately made and positively identilied that the evidence afforded by them is of a satisfactory character. Marzen vs. People, 173 111. 43. Where evidence is entirely circumstantial and the verdict of conviction must rest almost entirely on an alleged voluntary con- fession or admission made by accused to the witness under cir- cumstances rendering the making of it 'highly improbable, the fact that the admission was made must be clearly proven before it can be accepted as a basis of conviction. People vs. McMahon, 254 111. 62. Where the crime is clearly shown, independent of admissions or confessions, to have been committed by some person, then admis- sions or confessions, freely and voluntarily made, may be suf- licient to convict. Gore vs. People, 162 111. 259; Andrews vs. People, 117 111. 195; Bergeu vs. People, 17 111. 425. Extra-judicial confessions, when freely and voluntarily made, are of the highest order of evidence. Lyons vs. People, 137 111. 602; Langdon vs. People, 133 111. 382. Those portions of a confession introduced in evidence, which are in favor of the accused, are entitled to as much consideration as those which are against him, where they are not disproved by other testimony and are not improbable or untrue, when consid- ered with all the other evidence. Burnett vs. People, 204 111. 208 ; Hanrahan vs. People, 91 111. 142. Ees Gestae: — Acts and Statements of Accused: The defendant's own. dec- larations, either before or after the assault, are not admissible in bis own behalf; except as part of the res gestae, because they are self-serving and hearsay. Carle vs. People, 200 111. 494, A defendant cannot prove his own statements indicating a law- ful purpose, when made just prior to his departure for alleged scene of crime. Such statements are self serving. Conn vs. People, 116 111. 458. Evidence of what the prisoner said about deceased, after the commission of the crime and after the prisoner had gone three- quarters of a mile from the place where it was committed, are not admissible for the prisoner. Gardner vs. People, 4 111. 83. So defendant is not entitled to prove as part of the res gestae after he was in jail he appeared dazed and when told he had killed his wife, called his informer a liar. Such evidence is not part of the res gestae and could not explain what he did at the time of the alleged shooting. Collins vs. People, 194 111. 506. Evidence of a conversation with accused some time after the act, not a part of the act nor contemporaneous explanation of it. HOMICIDE 643 is not admissible for accused as part of the I'es gestae nor compe- tent to show the condition of his mind. North vs. People, 139 111. 81. The siibseqnent expressions of the prisoner that he did not re- gret the act, tliougli improper, are not erindnaL So long as the law justifies the act, he need have no other regret than that which naturally results to anyone who may be under the dire necessity of taking human life. Brown vs. People, 39 111. 407. AVhere the killing was of a highway commissioner, shot by accused in the act of removing a fence belonging to accused, it is not admissible for the defense, as part of the res gestae, to prove that the fence was not in the highway, the highway having been vacated, if at all, long prior to the killing. Davison vs. People, 90 111. 221. — Statements of Injured Persons: The declarations or admis- sions of deceased, exculpating defendant, are not competent except as dving declarations or when part of the res gestae. Moeck vs. People, 100 111. 242. It is competent, where the line of defense justified the shooting of the person killed as in self-defense of the accused, in rebuttal of that theor.y, to show the person killed was not aggressive, but, on the contrary, acted on the defensive, and to that end, any of his declarations explanatory or accompanying acts would be admis- sible as part of the res gestae. Wilson vs. People, 94 111. 299. The statements or admissions of third persons are hearsay; and as a general rule, inadmissible. Admissions by the injured per- son cannot be used by accused, except by way of impeachment, where defendant is on trial charged with commission of a crime, for the state is not bound by the mere hearsay statements of the injured party. People vs. Pezutto, 255 111. 583. The declarations of deceased, after being shot by defendant police officer, "Gentlemen, I am dying, I did no wrong," while not competent as dying declaration because a conclusion, is admis- sible as part of res gestae. Healy ^s. People, 163 111. 372. Evidence admitted in a murder trial that the deceased, who had been stabbed in the breast by defendant with a sharp iron rod, ran a short distance, and, exposing his breast, said, "Look where he speared me; I am done, I am gone," immediately expir- ing, is not reversible error, whether the declaration was a dying declaration or not, where the truth of the statement is undis- puted. Gedye vs. People, 170 111. 284. — Exclamations and Statements of Third Persons: Whenever it becomes important to show the occurrence of any fact or " cir- cumstance, it is competent and proper also to show any accom- panying act, declaration or exclamation which relates to or is explanatory of such fact or event. Lander vs. People, 104 111. 248. 64^ HOMICIDE The actions of the people surrounding accused at the time of the alleged assault, and the declarations made by them are admissible in behalf of accused as part of the rtvs- gestae. Davids vs. People, 192 111. 176. The exclamation of anotlier, in presence of accused, may be admissible as giving character to the conduct of the accused. Gannon vs. People, 127 111. 507. While the law will not permit husband and wife to testify as to their confidential communicatiojis with each other, a third person hearing a conversation between husband and wife may give evidence of it. Gannon vs. People, 127 111. 507. AVhere deceased had been pursued by several persons and killed, prosecution was properly permitted to ask witness "if he saw any indication of a difference of opinion or purpose among the persons composing the crowd who rushed to the barn," Held, proper as part of the res gestae. Brennan vs. People, 15 111. 511. Proof of statements made by defendant's wife to a doctor and another person in explaining how her attention was first called to the fact that something was the matter with the girl the defend- ant was charged v/ith murdering, and Avhat the condition^ of the girl was when found by her is not erroneous, wdiere there is noth- ing in such statements "prejudicial to the defendant or in any way connecting him with a crime. People vs. McMahon, 244 111. 62 ; see Ees Gestae — Murder. Insanity: . Presumptions: The legal presumption is that all men are People vs. Casey, 231 111. 2G1; Jamieson vs. People, 145 111. 357; Montag vs. People, 141 111. 75. The legal presumption that all men are sane makes it unnec- essary for the People, in the first instance, to prove the sanity of the accused. People vs. Casey, 231 111. 261. Every person is presumed to intend, and is accordingly held responsible for the probable consequences of his own acts and conduct. People vs. Gukowski, 250 111. 2.31. Burden of Proof: If defendant prove facts and circum- stances tending to prove his insanity, the burden of proof then devolves upon the prosecution to show the sanity of accused be- yond a reasonable doubt. People vs. Casey, 231 111. 261; Chase vs. People, 40 111. 352; Hopps vs. People, 31 111. 385. — Proof of Sanity: Non experts who have had opportunity to observe a person, may give their opinions as to his mental condi- tion and capacity, at the same time stating their reasons and the facts observed upon which they base their opinions, including conversations as a part of the observed facts, but to render such testimony admissible, they must be limited to conclusions drawn from the specific facts thus disclosed. Jamieson vs. People, 145 111. 357. HO:\[ICTDE ,645 Wlien a part of a conversation is proven to show insanity, the witness is bound to give in evidence tlie entire conversation, so far as it forms a pai-t of the ground upon which opinions are based. Janiiesoii vs. People, 145 111. 357. — Good Character: AVhere defense is insanity, evidence of uniform good character as a man and a citizen is proper for tlic jury to consider; -whether a person whose character has been uni- formly good, has in an insane moment committed the crime charged. Under plea of insanity, he is entitled to all the benefit which may be derived from the fact of uniform good character, as tending, slightly it may be, to the conclusion that he could not have been sane at the time the deed was done. If a man of a sudden, fall from a high position to the commission of outrageous crimes, it would not be an unnatural or forced inference that he may have been affected with insanitv at the time. Hopps vs. People, 31 "ill. 385. — Degree of InaanUy: Unsoundness of mind or affection of insanity must be of such a degree as to create an uncontrollable impulse to do the act charged, by overriding the reason and judg- ment and oliliterating the sense of right and wrong as to the par- ticular act done, and deprive the accused of the power to choose between them. Myer vs. People, 156 Til. 126; Dnnn vs. People, 109 111. 635; Hopps vs. People, 31 111. 385. Before criminal accountability ends, the affection of insanity, or the irresistible insane impulse thereby created, must be of such a degree and character as to obliterate the sense of right and wrong as to the particular act done, and if accused, at time of commiting the criminal act charged, was capable of distinguish- ing between right and wa^ong, the defense of insanity is not made out. Hornish vs. People, 142 111. 620. Degree of Proof: Defense of insanity need not be estab- lished by a preponderance of the evidence, but only by such evi- dence as raises a reasonalile doubt. People vs. Capey, 231 111. 261; Hopps vs. People, 31 111. 385; Dacey vs. People, lie 111. 555. "Where there is reasonable doubt as to the sanity, from the whole evidence, defendant should be acquitted. Jamieson vs. People, 145 111. 357; Dacey vs. People, 116 111. 555; Hopps vs. People, 31 111. 285. Intoxication: Defense or Excuse: AVhere one who is voluntarily intoxi- cated commits a homicide, under such circumstances as would have constituted murder by one not intoxicated, the intoxication is no defense or excuse. Bleieh vs. People, 227 HI. SO. When belief of danger arises only from the intoxicated condi- tion of the person entertaining the same, it neither excuses his action nor reduces the grade of his offense. Bleieh vs. People, 227 HI. 80. Voluntary intoxication furnishes no excuse for crime commit- ted under its influence, even if the intoxication is so extreme as 646 HOMICIDE to make the author of the crime unconscious of what he is doing, or to create a temporary insanity. Upstone vs. People, 'l()9 111. I(i9; Dunn vs. People, 109 111. 635. When, without intoxication, the law woukl impute to the act a criminal intent, as in the case of wanton killing without provo- cation, drunkenness is not av;iilal)le to disprove such intent. Upstone vs. People, 109 111. 1(39; Eaflerty vs. People, UG 111. 118; r: Doyle vs. People, 147 III. 398, When the nature and essence of the offense is by law made to depend upon the state or condition of mind of the accused, at the time and with reference to the acts done, drunkenness as a fact as affecting the control of the mind is proper for the consideration of the jury. Crosby vs. People, 137 III. 325. On a prosecution for assault with intent to murder, defend- ant may show in defense that from drunkenness he was incapable of forming any intent whatever, and especially the specific intent charged. Drunkenness is no excuse for any act done or commit- ted. The defendant may be punishable for the consummated offense, whatever it may be, and the want of mind operates, not by way of excuse for crime connnitted, but renders accused incap- able of committing the graver offense. Crosby vs. People, 137 111. 325. Where the plea is self-defense, proof as to whether accused w^as intoxicated at the time is competent. A man threatened with danger may judge from appearances, and determine by the cir- cumstances surrounding him whether he is in actual danger of losing his life or suffering great bodily harm. His ability to see and comprehend what was occurring, and to form therefrom a reasonable and well grounded belief that he was in danger of los- ing his life or suffering gi-eat bodily harm, would be affected in a greater or less degree by intoxication. A man in a state of intox- ication may, because thereof, misconceive his situation and sur- roundings, and misapprehend the acts and conduct and purposes of others, and arrive at a wholly unfounded, irrational and un- just belief of personal danger which would not find lodgment in the mind if his mental faculties were not in an abnormal condi- tion. Miller vs. People, 216 111. 309. — Proof of Drunkenness: Such intoxication may be evidenced by the person's conduct, by predisposing circumstances,— that is, by the drinking of intoxicating liquors or by the condition of intoxication prior or subsequent to the time in question, but within such time as that the conditiou might be supposed to continue. A party entitled to prove the fact of intoxication is not concluded by the denial of such witness that the party was drunk. He may prove the drinking of intoxicating liquors by such witness to be so recent before the time in question, and in such quantities as that, in consequence thereof, it is most probable he would be in a condition of intoxication at the time in question. Miller vs. People, 216 111. 309. If, on the trial of a person for shooting another, it is claimed by the defense that accused was hopelessly drunk, it is HO:\IICIDE 647 not improper to allow witnesses for the People to testify they made a test of the revolver offered in evidence as the one with which the shot was fired, and as to number of pounds pressure on the trigger it required to diseliarge it. Collins vs. People, 194 111. 506. On trial for murder, court is justified in refusing to permit a thirteen year old daughter of accused to express opinion as to whether her fatlier's condition on night of crime was such as to render him unconscious of his acts and surroundings. Collins vs. People, 194 111. 506. Alibi: — Burden of Proof: Burden of proof in establisliing the de- fense of an alibi is on defendant, and to maintain it, it is incum- bent upon him to prove facts and circumstances which, when con- sidered with all the evidence relied upon to estalilish his guilt of the crime charged, is sufficient to create in the minds of the jury a reasonable doubt of the truth of the charge. Flaniiaoan vs. People, 214 111. 170; Houser vs. People, 210 111. 253; Anneals vs. People, 134 111. 401. — Purpose: The defense of an alibi does not, in theory, deny that the crime was committed, but is designed to prove that de- fendant, during the whole time, was so far from the place where the crime was committed, that he could not have participated in it. People vs. Lukozus, 242 111. 101. Where a witness merely denies that he participated in any way in the crime charged, and contradicts the testimony of the witness who claimed to identify him. the fact that he testified after leaving a certain saloon he went across the street to his boarding house and went to bed does not amount to making the defense of alibi, where he called no witness to prove that he was not at the scene of the crime. People vs. Lukoszus, 242 111. 101. — Cross Examinotion: Where one accused of murder denies that he was near the scene of the crime, and claims he was at another place, it is proper for prosecution to prove that shortly before the commission of the crime, he was seen near the scene of the crime, even though he was engaged in other offenses when observed by the witness. Peojilc vs. Jennings, 252 111 534. Threats of Suicide: Threats of suicide by deceased, not accompanied by any act or declaration which they might explain, being mere hearsay are not admissible on part of the defense. Siebert vs. People, 143 111. 571; Clark vs. People, 224 111. 554; Howard vs. People, 185 111. 552. Where declarations offered as evidence are part of the res gestae, or are accompanied by acts of the deceased which might explain or characterize them, such declarations are admissible. Nordgren vs. People, 211 111. 425. Proof that deceased was in a cheerful and healthy condition of mind, as answer to the defense of suicide, is proper matter of 648 HOMICIDE rebuttal, but should not be offered in chief, although that line of defense has already been announced. Jumpertz vs. People, 21 111. 375. On the trial of a wife and her paramour for the murder of her husband by administering to him poison, declarations of de- ceased made at different times within a year before his death, and prior to his last sickness, that he intended to take his own life, not accompanied by any act of deceased which they might explain, being mere hearsa.y, are not admissible on the part of the defense. Siebert vs. People, 143 111. 571. Provocation : Words or gestures, however provoking or insulting, cannot amount to that considerable provocation which the law recognizes as necessary to reduce the killing from murder to manslaughter. So, letters written, or proof of their contents, are inadmissible to show provocation. Crosby vs. People, 137 111. 325; Fiiederich vs. People, 147 111. 310. IMere worcls cannot be said to constitute considerable provocation. No provocation by words only, however, opprobrious, will mitigate intentional. killing so as to reduce homicide to manslaughter. Steffy vs. People, 130 111. 98. No provocation by words only, addressed to the person killing, or to another in his presence, however opprobrious, will mitigate the intentional killing so as to reduce the killing to manslaughter. McCoy vs. People, 175 111. 224 ; Jackson vs. People, 18 -111. 269. No provocation, however great, offered the day before the crime, can be shown in justification or excuse, or have a tendency to reduce the crime from murder to manslaughter, for the reason that there has been sufficient time between the provocation and the killing for deliberation. Nowacryk vs. People, 139 111. 336. Self Defense: — Modern Doctrine: The ancient doctrine of the common law that the right of self-defense did not arise until every effort to es- cape, even to retreating until an impassable wall or something of that nature had been reached, has been supplanted in America by the doctrine that a man, if unlawfully assaulted in a place where he has a right to be, and put in danger, real or reasonably appar- ent, of losing his life or receiving great bodily haimi, is not re- quired to endeavor to escape from his assailant, but may stand his ground, and repel force v/ith force, even to the taking of the life of his assailant, if necessary, or in good reason apparently necessary, for the preservation of his own life, or to protect him- self from receiving great bodily harm. It is not necessary to the right of self-defense that a party having otherwise the right to exercise it, cannot "escape" the clanger by fleeing from his assail- ant. Hammond vs. People, 199 111. 173. It is not sufficient to constitute the intent to murder that the party charged intended, at the instant of the assault, to kill the party assaulted. One may, in self-defense, intentionally kill another and not be guilty of murder. The intent to kill may not be an intent to commit murder, but to take the life of another in self- HO^MICIDE 649 defense or upon that siuldeu heat of passion which reduces the crime of killing to manslaughter. Haimnond vs. People, 199 111. 173. — Purpose: When self-defense is replied upon, it pi'esupposes that the accused connnitted the act, and that the defense is in- voked in justification. People vs. Sniith, 254 111. 167. — Apparent Danger: If defendant act from real and honest conviction, induced by reasonable evidence, he acts in self-defense though it shonld transpire he was mistaken. It is not necessary that he should act as a man of ordinary judgment and courage. People ^•s. MeGiiinis, 234 111. 68 ; SteiBmeyer vs. People, 95 111. 383 ; Maher vs. People, 24 111. 241; Sehuier vs. People, 23 111. 11; Campbell vs. People, 16 111. 17; XII 111. Notes 915, § 18. The necessity of taking the life of the deceased need not be real and absolute, but if the necessity is so apparent as to induce the belief in a reasonable mind that the danger ^vas so imminent that no other means of escape exists but to take the life of deceased in order to preserve that of accused, such apparent danger will jus- tifv the homicide. Sehnier vs. People, 23 111. 11. If a person kill another in self-defense, it must appear that the danger was so urgent and pressing that in order to save his own life or to prevent his receiving great bodily harm, the killing of the other was absolutely necessary. The danger need not be real, but it must be apparently imminent, urging and pressing. Price vs. People, 131 111. 223. The right of a person to act in self-defense does not rest upon his mere belief of danger, regardless of the circumstances or whether such belief was reasonable or not. Kyle vs. People, 215 111. 250. One wdio is assailed in such a manner as to induce in him a rea- sonable and well grounded belief that he was in actual danger of losing his life or suffering great bodily harm, is justified in de- fending himself when acting under such apprehension, even to the extent of taking the life of his assailant, whether the danger was real or onlv apparent. Mackin \s. People, 214 111. 232; Davisou vs. People, 90 111. 221. — Actual Danger: Actual and positive danger is not indis- pensable to justifv self-defense. Roach vs. People, 77 111. 25; Crews vs. People, 120 111. 317. The law does not make a distinction between actual and appar- ent self-defense but betw^een danger which is real and danger which is apparent. Henry vs. People, 198 111. 162. The size and strength of deceased is competent to be proven by defendant on a plea of self-defense, as a circumstance calcu- lated to excite fear. Lyons vs. People, 137 HI. 602. — Belief of a Beasonahlc Person: A belief of danger must be such as a reasonalile person would have entertained under the circumstances, in view of the appearances. Bleich vs. People, 227 HI. 80. 6r,o no:\rTCiDE Fear, under the influence of whieli a person may take the life of his assailant, is the fear of a reasonable person, excited by the circumstances surrounding him at the time. If acting under the influence of such fears he does what a reasonable person might have done under the circumstances, he will be justified. People vs. Williams, 240 111. 633. A person, when threatened with danger, must determine from the appearances and surrounding circumstances as to the neces- sity of resorting to self-defense, and if the danger is apparently so imminent and pressing that a reasonably prudent man would suppose it was necessary to take the life of his assailant to pre- serve his own, or to avoid the infliction of a grievous bodily injury, then the killing would be justified. Maher vs. People, 24 111. 241; Campbell vs. People, IG 111. 16. One who has killed another cannot justify his action under a plea of self-defense where it would not have appeared to a rea- sonable person, in a like situation with the defendant, that he was in danger of great bodily harm or losing his life. Bleich vs. People, 227 111. 80. 'If defendant is assaulted by deceased in such a manner as to induce in him a reasonable and well grounded belief that he is in actual danger of losing his life or suffering great, liodily harm, when acting under such reasonable belief, he is justified in de- fending himself, whether the danger is real or only apparent. Stiller vs. People, 187 111. 244; Enright vs. People, 155 111. 32; Panton vs. People, 114 111. 505. — Good Faith : It is essential to a justification of self-defense to show the facts, whether deceptive or otherwise, that the jury may determine whether they were sufficient to excite the fear of a reasonable person, and whether accused acted in good faith under the influence of such fear. Gainey vs. People, 97 111. 270. — Accused Aggressor: One who is the aggressor and begins an affray, in which he takes the life of another, cannot escape the consequences of the killing upon the ground that he was acting in self-defense, unless he endeavors in good faith to decline further struggle before he inflicted the mortal wound. Mackin vs. People, 214 111. 232. When a person brings on an assault and when he finds the per- son assaulted is armed and ready to defend himself, produces a deadly weapon and kills him, he cannot escape the consequences of the killing of such parly by claiming self-defense. Henry vs. People, 198 111. 162. If accused seek and bring on a difficulty with deceased at the time of killing, he will not be allowed to avail of the right of self- defense in order to clear himself of the consequences of the kill- ing, however imminent the danger in which he found himself in the progress of the affray, which he brought on himself. Gainey vs. People, 97 111. 270. A person cannot follow up his enemy and if an encounter en- sue, justify the killing as being done in self-defense. Hughes vs. People, 116 111. 330. HOI\riCIDE 651 One who pursues and mortally wounds one who struck hira and ran away, caunot> justify the homicide on ground of self-defense. Bonardo vs. People, 182 111. 411. In a prosecution for shooting a restaurant keeper, where the plea is self-defense, it is proper to show, as bearing on the ques- tion of who was the aggressor, that before deceased came into the room, accused had assaulted a waiter and chased him from the room, and had thrown dishes and crockery on tlie floor. People vs. White, 2-51 111. 67. Defense of Habitation: A person within his own house may. exercise all needful force to keep an aggressor out, even to the taking of his life. A man's house is his castle, and he may defend it even to the taking of life, if necessaiy or apparently necessary, to prevent the person from forcibly entering it against his will, and when warned not to enter and to desist from the use of force. A man in his own habitation may resist force with force, and oppose an unlawful attempt to enter against his will by one who, in a violent manner, attempts to enter with a purpose of assaulting or otfering vio- lence to him, even to the extent of taking the life, although the circumstances may not be such as to justify the belief that there was actual peril of life or great bodily harm. Hapier vs. People, 213 111. 142. A tenant may forcibly resist landlord's attempt at forcible eviction, even though tenant is in arrears for rent. Gedye vs. People. 170 111. 284. Admissibility of Evidence in General: Upon a trial for murder, any doubt under the rule governing the production of testimony, should be resolved in favor of the accused. Tracy vs. People, 97 111. 101. Evidence is admissible which is relevant and tends to prove the issue. One accused of crime may prove any fact or circum- stance tending to show that the crime was committed by another. Such evidence may be so remote in point of time as to be imma- terial. To a great extent, such admission of evidence is within the discretion of the trial judge. People vs. Pezntto, 255 111. 583; People vs. Pfaiischmidt, 262 111. 411. He may show that another man boarded with the family at the time of the murder ; his relations to the family ; his opportunities to know deceased carried money, and other pertinent circumstances. Synon vs. People, 188 111. 609. Where the juiy has power to fix different punishments, any evidence is admissible on the part of the defense which tends to show the conduct of accused was less culpable than the proof on the part of the prosecution tends to show. Fletcher vs. People, 117 111. 184. Burden of Proof in General: Burden of proving defendant guilty rests upon state. South vs. People, 98 111. 261; Ilalloway vs. People, 181 111. 544. 652 HOMICIDE The killing being proven, the burden of proving circumstances in mitigation or that will justify or excuse the homicide will devolve upon the accused, unless the proof on the part of the prosecution sufficiently manifests the crime committed only amounts to manslaughter, or that the accused was justitied in committing the homicide. Peoi)le vs. Hubert, 251 111. .514; Parsons vs. People, 218 111. 386; Kipley vs. People, 215 111. 358; Kota vs. People, 136 111. 655; XII 111. Notes 918, § 36. And defendant is not required, when he assumes the burden of proof, to "satisfactorily" establish such defense. Halloway vs. People, 181 111. 544; Appleton vs. People, 171 111. 473; Alexander vs. People, 96 111. 96. Reasonable Doubt: Reasonable doubt, which will justify an acquittal, must arise from the evidence or lack of evidence. People vs. Zajicek, 233 111. 198. The people are not required to establish guilt beyond a possi- bility of a doubt. Pooplo vs. Lucas. 244 111. 603. Weight and Sufficiency: A person may intentionally take human life without being guilty of murder, and he mav do so and not be guilty of any crime. Smith vs. People, 142 111. 117. Proof that accused induced another to commit suicide by tak- ing poison is sufficient to warrant his conviction for murder, but in such case, direct proof that the poison was taken by his pro- curement is required. Burnett vs. People, 204 111. 208. If a person who is enfeebled by disease is unlawfully assaulted and an injury inflicted upon him which would not have been mortal to a man in good health, but which was mortal to him in his then enfeebled condition, the assailant is to be deemed, in law, guilty of unjustifiable homicide, either murder or manslaughter, as the case may be, though the asssailant did not know of the enfeebled condition of the person assaulted. In such case, the legal presumption is not only that the probable and necessary con- sequences of the assault are intended, but the possible conse- quences also. If the assault was committed in the perpetration of a felony, the killing would be murder. It is immaterial, in respect of criminal liability, that the injury but hastened the death of the person assaulted, for the offender may not apportion his own wrong. Cunningham vs. People, 195 111. 550. A distinction is to be borae in mind between the rules of crim- inal responsi])ility for a result, and the proper pleading of the cause that produced the result. Thus, when a man's will con- tributes to impel a physical force, whether such force proceeds directly from another or from another and himself, he is to be held responsible for the result the same as if his own unaided hand had produced it. If the blow so physically affected deceased as that, from the injurious effects thereof, he was rendered unable to stand and walk, and as a consequence, fell upon the cobble HOSPITAL RECORDS 653 stones and death resulted from llie fall, the hlow is to be regarded as the cause of death, even though it might not, in itself, have proven mortal. If death results indirectly from a bl-ow, through a chain of natural causes, unclianged by human action, the blow is regarded as the cause of dcatli. Koser vs. People, 224 111. 201. Where one person attacks another without justifiable cause, and without malice, express or implied, without any mixture of deliberation whatever, and, by the use of a deadly weapon, kills him the killing amounts only to manslaughter. Smith vs. People, 142 111. 117. One who, in resentment of an insult to a female relative, strikes the offender with his fist, without any intention of killing him, but with the result that the party is knocked down and killed, is guilty of no more than manslaughter. People >'s. Mighell, 254 111. 53. Conviction for murder is sustained by proof that accused was the aggressor in the affray into which he entered armed with a deadly weapon; that he fired the fatal shot intentionally, never at any time in good faith declining further combat ; that he did not fire the shot under the influence of real fear of great personal injury, and that, although he "fired in the heat of passion, he did so without provocation sufficient to excite ungovernable anger. Jennings vs. People, 189 111. 320. Joint conviction will be sustained where it is shown defendants went armed to a place where they were likely to meet deceased, for a common purpose of investigating a difficulty he had had with a relative of both, and that one held and controlled the team while the other fired the fatal shot. McDonnall vs. People, 168 111. 93. The aiding and abetting, w^hich is necessary to constitute one a principal to the homicide committed by another, consists in some- thing affirmative in its nature ; and even if threats made were ovei-- heard and no effort made to prevent their being carried out, such fact is not sufficient to convict as a principal. Crosby vs. People, 189 111. 298. HOSPITAL RECORDS Competency: Hospital records are only evidence of facts necessarily within the knowledge of the person making the entry. Met. Life Ins. Co. vs. Moravec, 116 App. 271. And physician's returns of births are only evidence of facts necessarily within his knowledge, and not of matters of mere hear- say gathered up by him, and hence is not evidence to prove a statement contained therein that the child was the second^ one borne by the mother, which was not a fact within the physician's knowledge. Howard vs. 111. T. & S. Bank, 189 111. 568. In suit on a life insurance policy, entries made in the records of a medical institution, and in the books of a physician, showing 654 HOSTILE WITNESS the physical condition of a party having the same name as the insured, who was examined about the time the insured applied for his policy, are not admissible in absence of proof of identity of the parties. Met. Life Ins. Co. vs. Mitt-hell, 175 111. 322. Nor is same admissible without identification of hand\\Titing of' one in attendance upon the party at such hospital. Schmidt vs. K. & L. of S., 176 App. 213. HOSTILE WITNESS See Bias and Hostility. HOTEL REGISTERS Admissibility : A hotel register and an expense account of a witness are admis- sible as tending to show that such witness was not at a particular place on a certain day as claimed by the opposite party. James vs. Conklin, 158 App. 640. But an entry on a hotel register is not competent evidence of the facts therein recited or in corroboration of tlie testimony that a person was elsewhere at the time of the commission of a certain act, when offered in his behalf. The entry is a self-serving state- ment, and while competent evidence against him, it is incompetent in his behalf. People vs. MeKeown, 171 App. 146, "Where a witness has testified that a signature in issue is not his, hotel register containing his signature may be shown him on cross- examination and he nuiy be asked if that is his signature. Hobart vs. Van Aerman, 146 App. 1. It is not error for the People to exhibit to the jury the hotel register relied upon by defendants in attempting to prove an alibi, and comment upon the clean appearance of the book, and the fact that all the names were in same handwriting, and ap- peared to be made at same time, as tending to show it was not a register in daily and actual use. Hauser vs. People, 210 111. 253. The admission in evidence, on trial for manslaughter, in pro- curing an abortion, of an entry on a hotel register offered to show deceased attempted to conceal her visit with accused to the town where abortion was procured, by registering under an assumed name, is not error, where the clerk and proprietor had already, without objection, testified to such registry. Cook vs. People, 177 lU. 146. HUSBAND AND WIFE See Abandonment, Advancements, Ante Nuptial Contracts, Bigamy, Divorce, Gifts, Infants, Legitimacy, Marriage, Crim- HUSBAND AND AVIFE 655 iNAL Conversation, Alienating Affections, Medical and Surg- ical Services, Fraudulent Conveyances. PRESUMPTIONS AND BURDEN OF PROOF. Agency : — xUjcncy of Ilnshdnd: The relation of principal and agent does not spring: from that of husband and wife, nor can it be pre- sumed from that relation alone. Wallace vs. Monroe, 22 App. 602; Donk Bros. Coal Co. vs. Leavitt, 109 App. 385. A husband has no implied authority to bind his wife as prin- cipal by contract. ' Wohlstein vs. Smiley, 168 111. 438; Sayles vs. Mann, 4 App. 516. Nor can a wife be bound as undisclosed principal by contract under seal, by her husliand, as principal, purporting to be in his own behalf even though the contract would have been valid with- out a seal. Walsh vs. Mnrphy, 167 111. 228. "While a husband may act as agent for his wife in investing and taking care of her funds, yet where the rights of his creditors are involved, the circumstances must show that they recognized the relation of agency between them. That the Avife permitted the husband to hold himself out as owner of property, and thereby gained credit, is a material cir- cumstance where controversy is between husband and judgment creditors. Hank vs. Van Ingen, 196 lU. 20. When a husband receives payments of money on an obligation to his wife, the possession of the obligation is evidence tending to prove he has authority to receive the money for his wife, but is by no means conclusive of that fact. Yazel vs. Palmer, 81 111. 82. A wife may use her money, deposited in a bank, to pay her husband's debts, and for this purpose may permit him to sign checks for her. Keene vs. Keene, 172 App. 183. Husband's handling of income of wife's separate estate will be presumed to be in character of agent. Patten vs. Patten, 75 111. 446. Burden of proving fact of agency rests upon party asserting it. Yazel vs. Palmer, 81 111. 82. — Agency of ^yifc: If a husband and wife are living together, there is a presumption arising out of the circumstances of co- habitation that the husband assents to a contract made by the wife for necessaries suital)le to his degree and estate ; but this presumption may be rebutted by proof. The presumption which co-habitation furnishes is strengthened by proof that the wife has been permitted by the husband to purchase other articles of the same sort for the use of the household. But it nnist be ordinarily necessary for what may be termed the domestic department to which the wife's authority to bind her husband is restricted. Bergh vs. Crosby, 162 App. 536; Compton vs. Bates, 10 App. 78; XII 111. Notes 938, § 9. 656 HUSBAND AND WIFE But presumption may be rebutted by proof that the husband had provided them or furnished the wife with means of provid- ing them for herself. Compton vs. Bates, 10 App. 78. Presumption as to wife's authority ceases when husband noti- fies merchant not to give credit to wife. Hibler vs. Thomas, 99 App. 355. Where goods are supplied a woman living separate from her husband, the l)urden of proof rests upon the person giving credit, to show the husband's liability, the presumption being against the same. Eea vs. Derkie, 25 111. 414. And has the burden of showing that wife left husband for suf- ficient cause. Brineherhoff vs. Briggs, 92 App. 537. » Where goods are supplied a woman living separate from her husband, the presumption is that he is not liable for same, unless she is deserted by the huslmnd. Eea vs. DiiVkie, 25 111. 414. A tradesman who sells the goods to the wife upon credit of the husband, in an action for the price, takes the burden of showing express authority, or of making proof of such facts and circum- stances as will establish same, on part of wife to purchase. Compton vs. Bates, 10 App. 78. And has the burden of showing that they were necessaries. Artz vs. Eobertsou, 50 App. 27. In an action against a bank, by a husband, for money paid to his wife from his account, evidence that his wife frequently made deposits on his account, presenting his bank-book and drawing the money from the bank on account of her husband, and that the bank had no notice of any change in the relationship between the husband and wife, is admissible to show whether or not the wife had actual or implied authoritj^ from the husband to draw On his account. Moline Sav. Bank vs. Liggett, 106 App. 223. Where the husband and wife are living together he has burden of proof to show that for some reason she did not have authority to bind him for necessaries. Bonney vs. Perham, 102 App. 634. Ownership of Property: — From Possession : It is presumed, in absence of evidence to contrary, that the husband is the owner of property in his posses- sion, and of which the wife may be in possession, if they are living together, as husband and wife. Curran vs. McGrath, 67 App. 566; Laing vs. Day, 8 App. 631; Far rell vs. Patterson, 43 111. 52; Eobinson vs. Breems, 90 111. 351; XII 111. Notes 949, § 99. So where the wife claims such property as against her hus- band's creditors, the burden of proof is upon the wife to show where and how she got it. Edie vs. Path, 4 App. 275; Laing vs. Day, 8 App. 631. The presumption of ownership of property by execution debtor arising from the fact that he resided in the house where the prop- HUSBAND AND WIFE 657 erty was in use as household furuilure, and that he was apparent head of the family, is rehuttahle. Giveiibcrg vs. Stovous, i212 HI. (ioG. Possession by the husband, after the wife's death, of a note and mortgage formerly the property of the wife, and which she has properly indorsed and assigned to him, raises the presumption that he is the legal and equitable owner thereof. Mahan vs. Schroeder, 23G 111. 3i)2. — Foreign State: In absence of proof to contrary, it will be presumed the common law rule that the wife's money and the income from her real estate became the property of her husband upon mai-riage, prevails in a foreign state. Hogue vs. Steele, 207 111. 340. Family Expense: It will be presumed that where a husband and wife live to- gether, he bears the expense. Dovine vs. Devine, 180 111. 447; Bonney vs. Perham, 102 App. 634. An article is not a family expense, chargeable upon both hus- band and wife, under the statute, if it in no way conduces to the welfare of the family generally, although at times it is used or displayed in the family by the one for whom it was purchased. Hyman vs. Harding, "l62 111. 357. Transfer of Chattels: To be valid as against third persons, transfers of chattels be- tween husband and wife living together must be in writing and acknowledged and recorded as chattel mortgages, and where al- leged to be in settlement of indebtedness, the law requires satis- factory proof that there was a valid and subsisting indebtedness between tlie husband and wife. Harrison vs. TourtiUott, 148 App. 576. ADMISSIONS By Husband: A hus1)and cannot bind his wife by admissions made in her absence if he is not her agent. Loluman vs. Grmidler, Ui8 App. 161. The right of the wife to the ownership of personalty cannot be prejudiced by the declarations of the -husband made out of her presence. Pierce vs. Hasbrouoh, 49 111. 23. An admission by a husband, made after transaction in which he was agent for his wife was closed, is inadmissible to bind the wife. Lowden vs. Wilson, 233 HI. 340. In creditor's bill proceeding to set aside a conveyance of real estate from husband to- wife, a written declaration made by the husband before complainant's indebtedness was incurred, to the effect that he had used his wife's money in purchasing the prop- erty and he held the title in trust for her, is admissible in favor of the wife, where the husband is dead and no motive for falsi- fying the facts appears. German Ins. Co. vs. Bartlett, 188 111. 165. The declarations of a husband that the money paid on purchase of land belonged to his wife, and that he wished the contract to Ev.— 42 658 HUSBAND AND WIFE inure to her benefit, are admissible in evidence. Like all such declarations, they are not conclusive, but may be disproved by direct or circumstantial evidence. Ci-ane vs. Wright, 46 111. 107. Declarations of husband who was occupying land of foimer wife under right of dower and homestead, that he did not claim to own the land, admissible against his wife, who claimed to own the fee. Kirby vs. Kirby, 236 111. 255. On bill by creditors to subject land conveyed by debtor to his wife, to payment of their judgments, declarations of debtor sub- sequent to his conveyance will not be competent evidence against the wife. Coale vs. Moline Plow Co., 134 111. 350. The declarations of grantor of land, and those of wife of gran- tee, all made out of presence of latter, being hearsay, are not competent evidence against grantee, on bill by heirs of his de- ceased wife to establish resulting trust in favor of complainants. Francis vs. Eoades, 146 111. 635. By Wife: Statements of wife, not in presence of husband, and not part of transaction by which she indorsed and assigned to him a note and mortgage, are not admissible for purpose of showing husband held note and mortgage upon express trust. Malian vs. Schroeder, 236 111. 392. Admissions and declarations of the wife during marriage cannot be proven by husband in action between other parties. Joiner vs. Duncan, 174 111. 252. (See Admissions and Declara- tions — Wills.) COMPETENCY OF HUSBAND AS WITNESS In General: Husband is incompetent to testify for or against wife except in cases enumerated by the statute. Schrefflei- vs. Chase, 245 111. 395; Mitchinson vs. Cross, 58 111. 366; Gannon vs. People, 127 111. 507; Stodder vs. Hoffman, 158 111. 486. Where wife is incompetent, husband is likewise incompetent. Gillam vs. Wrioht, 246 111. 398; Heintz vs. Dennis, 216 111. 487; Stod- der vs. Hoffman, 158 111. 486; Shaw vs. Schoonover, 130 111. 448; Way vs. Harriman, 126 111. 132; Treleven vs. Dixon, 119 111. 548; Gifford vs. McGiieron, 51 App. 387; XIV 111. Notes 1115, § 39.^ At common law, husband could not be a witness for or against his wife as to any matter, nor could he, either during the mar- riage or after its termination by death or divorce, be called as a witness to testify to communications between them, or to any fact or transaction the knowledge of which was obtained by means of the marriage relation. Schreffler vs. Chase, 245 111. 395. And when wife was incompetent to testify by reason of being a party to or interested in suit, husband was also held incompe- tent and vice versa. Mueller vs. Eebham, 94 111. 142. Separate Property of Wife: — In Oeneral: A husband is competent to testify for or against his wife, where the litigation concerns the separate property of HUSBAND AND WIFE 659 the wife, unless the wife is herself incompetent by reason of the capacity in which the o])posite party sues or defends. Linkiiiaau vs. Kiie|ii>er, 2-6 ill. 473. Under Section 5 of the Evidence act, a husband may testify in behalf of his wife, where the litigation concerns her separate prop- erty. Cassem vs. Heustis, 201 111. 208. Husband and wife are competent to testify for or against each other only in the cases mentioned in tlie exceptions to Section 5 of the act relating to evidence. The words "except in cases where the wife would, if unmarried, be plaintiff or defendant, " do not have reference to the cases where the wife is subsequently divorced, or where her husband has died, but simply in cases where the pro- posed witness has never been married, — where the controversy does not concern a right resulting from marriage. Smith vs. Long, :06 lU.- 485. In litigation respecting the wife's separate property, and in which she would, if unmarried, be the defendant, the husband is competent to testify for or against her, under exceptions to Sec- tion 5 of Evidence act. Booker vs. Booker, 208 111. 529. Under the proviso of the section, husband is not competent to testify to any admissions or conversations of his wife, whether made by her to him or to third persons, except in suits or causes between such husband and wife. Marks vs. Madseu, 2(51 111. 51; Mumford vs. Miller, 7 App. 62; Ged- ney vs. Gedney, 61 App. 511 ; Leiserowitz vs. Fogarty, 135 App. 609. — Bill to Declare Besulting Trust: A husband may testify as to business transactions in behalf of his wife, though joined as co-defendant, where suit relates to her separate property, the bill being filed by the assignee of a corporation in which the husband was chief stockholder, to set aside deed to her and have resulting trust declared in favor of corporation for benefit of creditors. Pain vs. Farson, 179 111. 185. — Action for Personal Injuries: In suit by wife for personal injuries, husband is a competent witness. N. C. St. By. Co. vs. Willner, 206 111. 272. A right of action for personal injuries to wife is her separate property and husband is competent witness in her behalf. Anderson vs. ^Nloore, 108 App. 106; City of Eock Island vs. Larkin, 136 App, 579. — Malpractice: An action for malpractice, brought by wife, is her separate property and husband is a competent witness in her behalf. Kolber vs. Frankenthal, 159 App. 382. — Proceeding for Partition: In proceeding for partition, hus- bands of female co-defendants are competent witnesses, since the litigation is concerning the separate property of their wives. Grindle vs. Grindle, 240 111. 143. — Bill to Set Aside Contract: In suit by wife to set aside a contract made between her and the executor of her father's wdll, concerning, her separate property, her husband is a competent witness. Stevens vs. Collison, 256 111. 238. 660 HUSBAND AND WIFE — Where Husband Administrator: "Where person sues as ad- ministrator, fact that his wife is sole heir of intestate does not render administrator incompetent as witness. Bailey vs. Eobinsoii, 149 App. 457. Adverse Party Heir or Personal Representative: If a wife is incompetent by virtue of her interest, the adverse party suing or defending in a representative capacity, her hus- band is likewise incompetent. Hamilton vs. Chaffee, 158 App. 54. A husband is not a competent witness in behalf of his wife where adverse party sues or defends as executor of a deceased person. Mann vs. Forein, 166 111. 446; Warrick vs. Hull, 102 HI. 280; Crane vs. Crane, 81 111. 165. When wife is disqualified as witness against heirs and executor, her husband is also. Pyle vs. Pvle, 158 HI. 288; Stodcler vs. Hoffman, 158 111. 486; Mueller vs. Eebliam, 94 111. 142. _ - The husband of testatrix is incompetent in suit to contest will, to testify to any fact or transaction, the knowledge of which was obtained by means of the marriage relation, including conversations with testatrix, in his presence, during the marriage, testified to by other witnesses. Wetzel vs. Firebaugh, 251 111. 190. Husband of a deceased grantee cannot testify as to any of her statements or conversations for purpose of showing delivery of deed, but he may testify to acts he witnessed with reference to such delivery. Weigrand vs. Eutsehke, 253 111. 260. A party to a suit whose interest is adverse to that of complain- ant, who sues as administrator of deceased person, is not compe- tent, under Section 2 of Evidence act, to testify in behalf of him- self, and his co-defendants, to conversations with deceased, for whom he testifies he- was acting as agent, where he was not called upon by administrator to testify as to any such conversations. "Elwell vs. Hicks, 238 111. 170. In proceeding by heirs to set aside or reform deeds made by their ancestor, the husband of one of the grantees is not com- petent to testify as to conversations with grantor, tending to sus- tain the deeds. Lyons vs. Willey, 253 HI. 440. The incompetency of husbands and wives to testify for or against each other applies to attestation of wills, and the disqualification as respects wills is not removed by provisions of act relating to evidence. Gump vs. Gowans, 226 111. 635. The statute making the husband or wife of anj^ devisee or ben- eficiary a competent witness to a will cannot be given retroactive effect. Rowlett vs. Moore, 252 111. 436. The right of a husband to testify, in litigation concerning wife's separate estate, "as other parties may" under provisions of act on evidence and depositions does not extend to suit against execu- HUSBAND AND WIFE 661 tors and devisees to set aside a will in which his wife's interests are adverse to tiie will. Pyle vs. Pyle, lo8 111. 289; Stodder vs. Iloffnuin, 158 111. 486. On bill by wife to set aside a sale of her land under a tleed of trust, where executor of deceased creditor is defending, the hus- band is not a competent witness for his wife. Trclcaven vs. Dixon, 119 111. 548. Where heir of deceased person files bill against other heirs to set aside will of testator, husband of complainant is competent to testify to any matter of whicli he had knowledge except as to admissions and conversations of complainant made during mar- riage. Mueller vs. Eebham, 94 111. 142. Husband of an heir is competent to testify on behalf of per- sonal representatives in proceedings on claim tiled against estate of deceased. Freeman vs. Freeman, 62 111. 189. On bill for specific performance, neither complainant nor her husband is competent witness where defendants are defending as heirs. Gladville vs. McDole, 247 111. 34. Void Marriage: A void marriage does not disqualify eitlier party from testify- ing against the other. Clark vs. People, 178 111. 37. Divorced Husband: Divorced husband not competent to testify, in will case, as to mental capacity of testatrix. SchreffleV vs. Chase. 245 111. 395. COMPETENCY OF WIFE AS WITNESS Criminal Actions: The Avife of one joint defendant may be allowed to testif}^ for the other if the grounds of defense are several and distinct and not dependent upon each other, but she is not a competent wit- ness where her testimony has the direct effect of aiding her hus- band. Gillespie vs. People, 176 111. 238. AVife of defendant may be called as witness against co-defend- ant when lujUe prosequi is entered as to the husband. Love vs. People, 160 111. 501. The wife of one of defendants named in indictment may tes- tify in corroboration of her husband, who |)leaded guilty before the trial and was not, so far as the record shows, on trial, where her testimony is neither for nor against her husband. Graff vs. People, 208 111. 312. Where Acting' as Agent: Unless wife has acted as her husband's agent, she is not com- petent witness in litigation to which he is a party. Elec. Vehicle Co. vs. Price, 138 App. 594. To make a wife a competent witness by reason of agency, it must appear that she was authorized by her husband to conduct some business transaction for him which she did conduct and then she may testify. Donk Bros. Coal Co. vs. Stroetter, 229 111. 134. G62 HUSBAND AND WIFE If the wife of a party, ia the business transaction as to which she has testified, has acted as agent of her husband, then she is a competent witness. Lumbard vs. Holdmann, 115 App. 458; Dannewitz vs. Miller, 179 App. 185. Where property is phiced in charge of wife, during husband's absence, with instructions in regard thereto, it is a "business transaction," and an "agency," sufficient to enable her to be a witness in suit by husband. Sargeaut vs. Marshall, 38 App. 642. In action by inn-keeper, proof that he is absent a greater part of the time, and during such absence his wife manages the inn is enough to permit her to testify as his agent. Mitchell vs. Hughes, 24 App. 308. W^ife's competency limited by extent of agency. If agent for part of transaction only, she is competent witness only as to that part. Poppers vs. Miller, 14 App. 87; I. C. E. E. Co. vs. Messnard, 15 App. 213. And unless she is agent, she cannot testify as to admissions of opposite party. Eobertson vs. Brost, 83 111. 116; Elec. Vehicle Co. vs. Price, 138 App. 594. A wife is competent to testify as to transactions where she is alleged by opposite party to have acted as agent of the husband. Schneider vs. Kabsch, 91 App. 386. Husband's testimony that he was wife's agent in her business, insufficient proof of such agency to make him a competent wit- ness for her. Waggonseller vs. Eexford, 2 App. 455. The fact that a party's wife was present when he purchased goods, and selected them, with assistance of her husliand, does not make her agent of latter, and in suit against him for price, the wife is not a competent witness in his behalf, to prove the goods were furnished on credit of a third person, in payment of debt of such third person to the husband. Trepp vs. Baker, 78 111. 146. A married woman may properly testify for her husband as to conversations with parties in regard to business transactions, in which she has acted as the agent of her husband. McDavid vs. Eork, 92 App. 482. Even where the wife is administratrix of her husband's estate, she is competent to testify against the estate as to acts done by her as agent of her husband. Eobnett vs. Eobnett, 43 App. 191. Attesting Witness of Will: The wife of an executor is not a competent attesting witness. Such incompetency, like that of wife or husband or a legatee or devisee, is not removed by Wills act. Fearn vs. Postelwaite^ 240 111. 626. Though executor make written release. Eowlett vs. Moore, 252 111. 436. HUSBAND AND WIFE 663 Family Expense: Where husband and wife are joint defendants, both are com- petent witnesses. Ven-les vs. Jansen, 96 App. 328. But wife is incompetent as against husband to prove that arti- cle purchased by her was family expense. Hynuiii vs. ilaidiiit^^ HV2 111. o")il. Admissions and Declarations in General: Under section 5 of the Evidence act, and its proviso, a wife is not competent, either during or after coverture, to testify to any conversation between herself and her husband, or to any admis- sions made by him to her, or to any conversation between him and a third person, or to any admissions made by him to a third i)er- sou, except in causes between husband and wife. Stepheus vs. Collisoii, 2o6 111. 238; Doiinan vs. Donuan, 236 111. 3ii; Wickes vs. Waldion, 228 111. 56; XIV 111. Notes 1132, §155. A wife cannot testify as to declarations of or conversations with her husband during coverture, although the marriage rela- tion has been severed by death or divorce. Geer vs. Goudy, 174 111. Sli; Fletcher vs. Shepard, 174 111.- 262. A wife is incompetent to testify as a witness to any admission or conversation of her husband relative to transaction concern- ing benefit certificate in suit wherein she is named beneficiary, but she is not incompetent to testify as a witness to such trans- actions relating to such benefit certificate, such as delivery of cer- tificate to her, the keeping of same by her and where she kept it, and the fact of payment and advancement by her of money to and for the benefit and use of her husband. Conner vs. Conner, 145 App. 608. Actions by or Against Husband: — In General: Wife is incompetent to testify for her husband except as provided by statute. Schrefller vs. Chase, 245 111. 395. — To Establish Resulting Trust: The wdfe of a complainant in bill in chancery to establish resulting trust is not competent to testify for her husband. Francis vs. Ehoades, 146 111. 635. — Bill to Declare Deed a Mortgage: On bill by person seeking to have a deed made by him declared to be a mortgage, and to redeem therefrom, his wdfe is not competent witness in his behalf. Keithley vs. Wood, 151 111. 566. — Bill to Cancel Deed: In suit in chancery by husband to cancel deed for duress, the wife is not a competent witness in his behalf. Eendleman vs. Eendleman, 156 111. 568. — Bill to Compel Ee-Convcyancc: In suit by husband and wife to compel re-conveyance of certain land to them which had belonged to the husband, and which he had conveyed, the wife is not a competent witness in her husband's behalf. Kofsky vs. Kofsky, 254 111. 88. — Bill to Contest Will: The wife of a legatee is not a compe- tent witness in suit to contest will, as she is incompetent to tes- tify either for or against her husband. Wetzel vs. Firebaugh, 251 111. 190. 664 HUSBAND AND WIPE The wife of a contestant of a will, where the opposite party de- fends as a devisee, is not a competent witness. Bevelot vs. Lestrade, 153 111. 625, — Bill to Foreclose Mortgage: On bill by mortgagor and wife against heirs of deceased mortgagee, the wife is incompetent to testify to anything in behalf of her husband, unless she was com- petent to testify in her own behalf. McGooden vs. Bartholie, 132 App. 392. — Deht on Bond: In debt on bond given to wife, conditioned to pay certain sum for support, wife is competent witness in action for breach. Bea vs. People, 101 App. 132. — Actions Against Sureties: In action against one of makers of a note, who is a surety, wife of principal maker is not a compe- tent witness for the maker, for the reason that her husband is directly interested in the result of the suit. Craig vs. Miller, 133 111. 300. In action against sureties upon a note, the wife of one of de- fendants was offered as a witness to testify to wliat plaintiff had told her, at time when he called for her husband to go and see the principal debtor, and get him to execute a mortgage as further security for the debt. Held, incompetent. Phares vs. Barbour, 49 111. 370. — On Credit ors's Bill: On creditor's bill to set aside a convey- ance of land by a husband to his wife, she is a competent witness to prove the consideration of the conveyance and its good faith. Payne vs. Miller, 103 111. 442. On bill to set aside conveyance made by judgment debtor as being fraudulent as to creditors, the wife of grantee defendant is not a competent witness for him, to sustain alleged bona fides of the conveyance. Gordon vs. Eeynolds, 114 111. 118. — Trespass: In action of trespass for assault and battery, wife of defendant is incompetent in his behalf. Eiedel vs. Crocker, 161 App. 608. In action of trespass by husband, against a stranger, for taking and carrying away goods of the husband, the wife is not a compe- tent witness in his behalf. Hays vs. Parmalee, 79 111. 563 ; Wolf vs. Vanllousen, 55 App. 295. — Where Bill Disynissecl as to Wife: "Where a bill in chancery against husband and wife is dismissed as to wife, on the hearing, she will not thereafter be a competent witness in behalf of her hus- band. Kuseh vs. Kusch, 143 111. 353. — Husband Next Friend: Wife of next friend is competent witness. I. C. E. E. Co. vs. Becker, 119 App. 221. Where husband sues as administrator for death of son, wife is incompetent witness. Thomas vs. Antliony, 261 111. 288, The wife who sues as next friend is not incompetent merely be- cause her husband has given bond for costs in the case. Kendalil vs. Walsh, 145 App. 601, HUSBAND AND WIFE 665 Where Marriagfe Denied: A woman wliose claim as being lawful widow is denied by others having- or asserting interest, as heirs, in estate of her aHeged hus- band, is incompetent to testify to the fact of her marriage, in pro- ceeding in which she seeks, as distributee, a portion of all his per- sonal property, until her status as a widow has been established by ^n adjudication of a competent court. Til re I'lstate of Maher, 210 111. IGO. Divorced Wife: Testimony of a divorced wife of a party, as to matters occur- ring during marital relations, is incompetent. Wiekes \s. Walden, 1.50 App. 79; Neubrecht vs. Sontmeyer, 50 til. 74; VVaddams vs. Humphrey, 22 111. 661; XIV 111. Notes 1132, § 158. A divorced wife is incompetent to testify in behalf of her former husband in suit against her seducer. Eea vs. Tucker, 51 111. 110. In bill for divorce, filed by wife, alleging impotency on part of husband, testimony of former wife, since divorced, is inadmissible on behalf of complainant. Orillith vs. Griffith, 162 111. 368. Bigamous Wife: Competency of second wife in criminal prosecution of husband, who is alleged to have another wdfe living and undivorced, is for the court, both as to questions of law and fact. Hoch vs. People, 219 111. 265. (See Bigamy.) In prosecution for forgery, the alleged wife of the accused is properly permitted to testify against him upon proof that he had a wife living when the marriage ceremony with the witness took place, which is not contradicted by accused though he took the stand in his defense. Clark vs. People, 178 111. 37. -Proof of a former marriage and a living wife being made aliunde, the supposed second wife becomes a competent witness to admis- sions of alleged husband, during cohabitation, that he was never divorced from his first wife. Cole vs. Cole, 153 111. 585. COMPETENCY OF WIDOW AS WITNESS Admissions and Transactions Generally: A widow cannot testify to admissions or conversations of de- ceased husband, although called against her interest. Abrahams vs. Wooley, 243 111. 365. In suit to contest will, wddow is incompetent to testify that in her judgment testator was incapable of transacting ordinary busi- ness, wdiere such judgment is based largely upon conversations between herself and testator, and between him and tliird persons. Donoan vs. Donnau, 236 111. 341. A widow cannot testify to conversations with deceased husband, in action by administrator. Section 5 of the Evidence act only permits a husband or wife to testify to any admissions or conver- sations of the other in suit between husband and wife. Neiee vs. C. & A. E. K. Co.. 254 111. 595; State Bank vs. Burnett, 250 Til. 312. Widow cannot testify as to the mental and physical condition of the testator, nor to certain of his habits, as she is not compe- 666 HUSBAND AND WIFE tent to testify to any fact or transaction, the knowledge of which was obtained by reason of the marriage relation. Donnan vs. Donnan, 256 111. 244. Surviving wife is incompetent to testify to matters or conver- sations occurring during marriage. Stephens vs. Collisoii, 2r^C^ 111. 238; Yokum vs. Hic-ks, 93 App. 607. Disproving Alleged Admissions: A widow may testify to facts occurring after husband's death, and also in rebuttal of admissions sworn to have been made by her. Gillespie vs. Gillespie, 159 111. 84. In partition by heirs against widow of their deceased ancestor, if complainants testify as to conversations had between them and defendant before death of her husband, and in his presence, in wdiieh it is claimed she made certain declarations tending to sup- port allegations of the bill, she has the right, under clause 8 of Section 2 of p]vidence act, to testify for purpose of disproving or explaining such conversations or declarations. Blaueliar. 307. Cross Exaimnation : Upon cross examination, any fact which, in the sound discretion of the court, is pertinent to the inquiry, whether testified to by any one or not, may be assumed in a hypotlietical question, with the view to testing the skill, learning or accuracy of the expert or to ascertain the reasonableness or expose the unreasonableness of the opinion he has expressed to the jury. A question, although it goes beyond the scope of the evidence, may be propounded upon cross examination if its office and purpose is to elicit the reason upon which the expert based an opinion expressed by him in his examination in chief, or to ascertain the extent of his learning and knowledge of the particular subject upon which he assumes to be an expert. W. Chi. St. Ey. Co. vs. Fishman, 1G9 111. 196. If party considers that his opponent's hypothetical question does not fairly cover the evidence he m^ay, upon cross examination, change the question so as to cover the facts which he believes are applicable to the case, and shown by the evidence, and failing to do so, he cannot complain on appeal. City of Aledo vs. Honevman, 208 111. 415; Chi. City Ey. Co. vs. Buudy, 210 111. 39; EiVerton Coal Co. vs. Shepard, 207 111. 395. Or may call the attention of the witness to the omitted fact ou cross examination. C. & E. I. Ey. Co. vs. Wallace, 203 111. 129. It is proper, on cross examination of a medical expert, to put to him hypothetical questions containing supposed states of facts other than those shown by the evidence. People vs. Dietmeyer, 164 App. 405. But matters assumed must be pertinent to inquiry. San. Dist. vs. Corneau, 257 111. 93; McEniry vs. Tri-City Ey. Co., 179 App. 152. Wide latitude ought to be allowed in the cross examination of witnesses examined hypothetically. MoenniL'h vs. City of Chicago, 147 App. 553. IDENTITY See Ambiguity, Ownership, Parol, Former Adjudication, Former Jeopardy, Alterations and Erasures, Leading Ques- tions. PERSONS Judicial Notice: The court recognizes the letters Jos. as a common abbreviation for Joseph, — a name in common use. Feld vs. Loftns, 240 111. 105. Courts cannot judicially notice the equivalents of names of per- sons in another language. Becker vs. German Fire Ins. Co., 68 111. 412. It cannot, for instance, know that Wilhelm is the German equiv- alent for AVilliam. Becker vs. German Fii'e Ins. Co., G8 111. 412. Ev.— 43 674 IDENTITY Nor can it take notice that Bart, is a contraction for Barthol- omew. Rives vs. Mai-s, 25 III. 315. Presumptions : — Initial of Cliristian Nam.es: The use of the initial of the chris- tian name is so common among all classes that it is not regarded as another name or the name of another person, but is simply an abbreviation of the full name, and the court may presume it to be such. Lee vs. Mendall, 40 HI. 359. Only one christian name is recognized by law, and a middle name or initial is not material. People vs. Dunne, 247 111. 410 ; XITI 111. Notes 925, § 3. The middle initial is no j^art of a name, and it ynW be presumed, after m^any years, in absence of evidence to contrary, that a per- son who attested a will, signing his first name with an initial for miLklle name, was the same person who testified, signing by in- itials of first and middle names, where the first initial is the first letter of the given name in tbe attestation, although the middle initial, when testifying, was different. Slick vs. Brooks, 253 111. 58. In absence of contrary proof, it will be presumed on appeal from a confirmation judgment that a commissioner appointed under the name of "Frank Bettie," was the same person who signed the estimate as "Frank AV. Beattie," as the middle initial is no part of the name, and the surnames are iden sonans. Gross vs. Village of Grossdale, 177 111. 248. — Same Name: There is no conclusive presumption of law that a signer of a petition and a trustee voting thereon are the same person, merely because they bear the same name. Ferguson vs. Trustees, 168 App. 225. — Parties to Conveyance: It may be presumed that parties to conveyances are the same persons where initials of christian names are used and they are the initials of christian names given in full in other deeds of sarxie premises, the surnames being the same. Ogden vs. Bcniis, 125 111. 105; Skinner vs. Fulton, 39 111. 4S7. Where a deed is delivered to the father, of the same name as his minor son, Vv^ithout any statement of the grantor tha.t it was delivered to him for his son, the presumption is that it was de- livered to the father for his own benefit, as the grantee. Fyffe vs. Fyffe, 106 111. 646 ; Graves vs. Colwell, 90 111. 612. Where a conveyance is made to one bearing the same name as the prior owner and grantor thereof, in absence of evidence to the contrary, he will be presumed to be the same person. Brown vs. Metz, 33 111. 339. — Parties to Suit: The identity of a person incurring a lia- bility and the one being sued must be prover^. When that fact is shown, and the defendant, being a woman, is sued under a differ- ent name, her marriage may be presumed, unless put in issue in plea in abatement. Berber vs. Kertzinger, 23 111. 346. Identity of defendant railway company is sufficiently alleged and proved by the initials by which it is ordinarily known, in the absence of specitic objection. B. & O. Ey. Co. vs. Higgins, 69 App. 414. IDENTITY 675 — Existf/ncc of Parly: The presumption of the authority of an attorney to act for a pai'ty in bringing a suit in the name of such party necessarily carries with it the presumption of existence of such party. Woodward vs. Donovan, 167 App. 503. — Consignee: Where a person professing to be the consignee of an express package is identified by a trustwoi-thy person, as the proper consignee, about tlie time it may reasonably be expected consignee will call for the package, and he tells person delivering it to write his name in receipt book, such proof is sufficient to raise a presumption of proper delivery to the true consignee, which con- signor, in action against carrier, must meet with preponderance of evidence. TenEych vs. Harris, 47 111. 268. — Voter: Where a person of a certain name voted at an elec- tion, and, on contest of election, a man of that name was called as witness, who showed he was of foreign birth, and had never been naturalized, it was presumed, as he was found in the same county, from the identity of the name, that witness was the per- son who voted. Clark vs. Eobiiison, SS 111. 499. Admissibility of Evidence: — In General: A witness may testify to a person's identity from his voice, or from observing his stature, complexion or other marks. People vs. Jennings, 252 111. 534. Or from foot-prints. Carletou vs. People, 150 111. 181; People vs. Hannibal, 259 111. 512. Or from finger prints. People vs. Jenning^s, 252 111. 534. But whether hair found in hand of murdered man resembles in color his own hair is not subject of expert testimony. Watt vs. People, 126 111. 9. — Opinion Evidence: Every person is competent to express opinion on question of identity, as applied to persons, things, ani- mals or handwriting, and may give his judgment in regard to the size, color or weight of objects, and may estimate time and dis- tances. He may state his opinion as to sounds, their character, from what they proceed and the direction from which they seem to come. The correspondence between boots and foot-prints is a matter requiring no peculiar knowledge, and to which any per- son may testify. So a person not an expert may give his opin- ion whether certain hairs are human hairs. And a witness may state what he understood by certain "expressions, gestures and intonations," and to whom they were applied, otherwise the jury could not fully understand their meaning. Carter vs. Carter, 152 111. 434. — Parties to Contract: Extrinsic evidence of every material fact which will enable court to ascertain nature and qualities of subject matter of instrument, or in other words, to identify per- 676 IDENTITY sons and things to which instrument refers, must necessarily be received. Cumberledge vs. Brooks, 235 111. 249; Graves vs. Cohvell, 90 111. 612; Eiebling vs. Tracy, 17 App. 158. Where corporation is mis-named in contract of guaranty, proof is admissible to show corporation intended to be indemnified by contract. Mall. I. K. Co. vs. Pusey, 244 111. 184. An unexecuted blank contract, exhibited to plaintiff for infor- mation as to specifications of material required is inadmissible to identify parties to contract later entered into. T. W. k W. Ey. Co. vs. Chew, 67 111. 378. — In Libel and Slander: Testimony of the hearers as to the sense in which they understood the words spoken is admissible. This rule applies to a statement of the witness to the effect that he understood the alleged slanderous words were spoken with ref- erence to plaintiff, where plaintiff's name was not used, so evi- dence is admissible to show to whom libelous publication referred. Ball vs. Evening Amer. Pub. Co., 237 111. 592 ; Dexter vs. Harrison, 146 111. 169; Nelson vs. Borchenius, 52 111. 236. — Devisee: For purpose of determining the object of a testa- tor's bounty, a court may inquire into every material fact relat- ing to the person who claims to be interested under the will, in order to identify the person intended by the testator as the lega- tee. Parol evidence is admissible of any extrinsic circumstance tend- ing to show what person or persons or what things were intended by the party or to ascertain his meaning in any other respect. A nickname may be shown as may also a name gained by repu- tation. Coon vs. MeNelly, 254 111. 39. In determining intention, parol evidence, though not admis- sible to change the language of the will, may be received when necessary, to identify the objects or subjects of the testator's bounty. Collins vs. Capps, 235 HI. 560. Where a testator, after a specific devise of land to his daugh- ter, added immediately after, these words, "The remaining lands owned by me to be equally divided between the four boys," and the proof showed he had, at the time, seven sons, four of whom were minors, residing with him, the other three being men and living in their own homes, apart from their father, parol proof, not only of the previous facts known to the testator, and of the present circumstances under which he made his will, but also of his declarations made at time of making his will, as well as before and after, might be resorted to to remove the ambiguity, if any, and to fix the objects of his bounty. Bradley vs. Eeese, 113 111. 327. — Beneficiary of Insurance: Where it appears by extrinsic evidence that the words used in an insurance policy to designate the beneficiary fail to correctly describe any person related to or IDENTITY 677 known by the insured, further extrinsic evidence may be received to aid in determining wiio was the intended beneliciary. Hogan vs. Wallace, 166 111. 328. — Parties to Suit: Parol evidence is admissible to identify parties to former action. Penn. Co. vs. Sloan, 125 111. 72; Hea«ock vs. Lubukee, 108 111. 641; Ponil vs. Ennis, 69 111. 341. Rule is same in criminal action as to parties or offenses. People vs. Smith, 258 lU. 502. -—PHnoipal in. Recognizance: May be proven by parol. O 'Brien vs. People, 41 111. 456. — Voter: Where certificate of naturalization gives only part of name, witness may prove by his own oath that it was issued to him and that he is the person naturalized thereby. City of Beardstown vs. Virg-inia, 81 lU. 541. Weig-ht and Sufficiency: — Accused: Although it may be positively proven that one of tv/o or more persons committed a crime, yet if it is uncertain which is the guilty party, all must be acquitted, Campbell vs. People, 16 111. 16. Where defendant's connection with the crime charged rests upon the testimony of one witness, it is error to permit an officer who arrested defendant to testify he got the description of de- fendant from such witness and that the latter identified defend- ant. People vs. Lukoszus, 242 111. 101. The identity of accused with person tiring a shot is not suf- ficiently shown, to warrant his conviction, by the mere fact that foot-prints at the place of crime were of the same size as those found where accused had been found walking, though taken with other facts may raise a suspicion of guilt. Dunn vs. People, 158 111. 586 ; Carlton vs. People, 150 111. 181. On trial of two for burglary, the person robbed testified posi- tively that defendants were the ones who committed the act. The only denial was the testimony of defendants, one of them not denying, in terms, that he was present and aided in the burglary, and admitted he was indicted for robbery in another case. The burglary was not denied. Such evidence was sufficient to warrant a conviction, Spabn vs. People, 137 111. 538. Testimony of prosecuting witness that he had a good look at the man who robbed him, and that defendant was the man, coup- led with the fact that such defendant was picked out by prosecut- ing witness, three weeks after the crime, from among a crowd of twenty-five hundred men, and pointed out to the police as the robber, is sufficient to warrant a conviction as against the testi- mony of two witnesses who saAv the robber some distance from them, running from the scene of the crime, and who testified de- fendant was not the man. People vs. Williams, 242 111. 197. • — Deceased: See Homicide. ^- Owner of Stolen Property: Sufficient to prove that owner was known bv a certain name. Hix vs. People, 157 111. 382. 678 IDENTITY Where names of ordinary enunciation are not distinguishable, the doctrine of idcn so nans will apply. Banios vs. People, 18 111. 52. REAL PROPERTY Subject of Devise: Where devise of real property contains two descriptions, one of which is incomplete but not incorrect, jjarol testimony is admis- sible to identifv the premises. Lawren^ vs. Lawrence, 255 111. ."'.65; Mnnall vs. Morrall, 2.36 111. 640; Decker vs. Decker, 121 111. 341; Emert vs. Hays, 89 111. 11. But if after rejecting the surplusage, the description can only be made to apply to lands of testator by inserting additional words, or if there be but one description and it is wrong, parol proof cannot be made to identify the subject matter of the devise. Graves vs. Rose, 246 111. 76. A testator, by his will, gave his widow a life estate in a tract of land with power to sell and dispose of same for her own use and benetit, and what might remain unexpended at her death, to his two sons. During her life the widow sold the land and shortly afterwards made certain loans of money to the two sons, and she admitted, in her lifetime, that the money she let one son have Avas his money. The sale of the land for cash, and the subse- quent loan of the money made a prima facie case that the money loaned was that derived from the sale. Walker vs. Pritehard, 121 111. 221. (See Ambiguity Wills.) Conveyances : Where a conveyance refers to a plat, such plat becomes a part of the conveyance just as if it had been copied into the deed, and is regarded as furnishing the true and correct description of the dimensions and boundaries of the land. Eeed vs. Bartlett, 255 111. 76; People vs. New, 214 111. 287. And such plat is admissible to identify and locate lot or prem- ISGS Black vs. C. B. & Q. R.v. Co., 237 111. 500; Mann vs. Bergenian. 203 111. 406; Allniendinger vs. McHie, 189 111. 308; Prouty vs. Tildcn, 164 111. 16H; Wetig vs. Bowman, 39 111. 416. Contracts for Conveyance: •-'Latent ambiguities may be explained by parol evidence, and such evidence may be resorted to for purpose of identifying premises in suits for rectification and specific performance, and in proceedings affecting title. Hedrick vs. Donovan, 248 111. 479; Lynian vs. Gedney, 114 111. 388; McLennan vs. Johnson, 60 111. 306; Crossett vs. Hobbs, 56 111. 231; XII 111. Notes 520, § 359. But if the uncertainty in the description of land is patent, extrinsic evidence is not admissi])le to show what was intended. Wetmore vs. Watson, 253 111. 89; Eampke vs. Beuhler, 203 111. 384; Winter vs. Trainor, 151 111. 191; Hamilton vs. Harvey, 121 111. 469; Purington vs. N. I. E. E. Co., 46 HI. 297; Shirley vs. Spencer, 9 lU. 583. A description of lands in a deed not sufficiently certain in itself, may be made so by reference to other deeds in which the descrip- tion is sufficient. Wetig \s. Bowman, 39 111. 416. IDENTITY 679 Parol evidence is always admissible to explain a latent amlji- guity, showing what property was intended to be conveyed. Evans vs. Gerry, 174 111. 595 ; Bradish vs. Yocum, 130 111. 386 ; Sharp vs. Thompson, 100 111. "447; Fi>--her vs. Quaekciilnish, 83 111. 310; CoK'ord vs. Alexander, 67 111. 581 ; Billings vs. Kankakee Coal Co., 67 111. 489; Bybee vs. Hageman, 66 111. 519. n If the description in a deed is uncertain, parol evidence of any extrinsic circumstances is admissible to identify and establish the objects of the call in the deed. Koehling vs. People, 196 111. 353; Kleiner vs. Bowen, 166 111. 537; Mason vs. Merrill, 129 111. 503; Taylor vs. Wright, 121 111. 455. But if no uncertainty or ambiguity exists, parol evidence of the acts and conversations of grantor and grantee, prior to execu- tion of deed, cannot be received to show description in deed is wrong. Duggan vs. UpDendahl, 197 111. 179; Colcord vs. Alexander, 67 111. 581. ' And this though there was no property in existence of descrip- tion in the deed. Eichie vs. Pease, 111 111. 353. Where there is a latent ambiguity in the description in a con- veyance, as an omission to refer to any meridian, the defect may be obviated by proof. Such a deed is not void for uncertainty. Daugherty vs. Purdy, 18 111. 206. A latent ambiguity in the description of land in a conveyance as where, by omitting to state the number of township nortli^of the base line, there are several parcels which will answer the description, may be explained by evidence; and is so explained when it is shown which of the several parcels the grantor claimed. Clark vs. Powers, 45 111. 284. In ejectment for a tract of land claimed to have been conveyed by defendants to plaintiffs, wliere the deed is subject to a latent ambiguity, the burden of proof will rest upon plaintiff to show such tract was a part of the land intended to be conveyed to him. Bradish \s. Yocnm, 130 111. 386. Where a deed described the land as being in a certain section, without showing in what township that section is located, and it is shown there are several sections in the county of that num- l)er, the deed, taken in connection wdth such showing, will reveal a latent ambiguity, and parol evidence will be admissible to show in what township such section is located. Hallidav vs. Hess, 147 111. 588; Billings vs. Kankaliee Coal Co., 67 111. 489. The location of a town lot may be fixed by a witness from com- mon repute, irrespective of any plat. Jndson vs. Glos, 249 111. 82; Holbrook vs. Debo, 99 111. 372. Where the title to a tract of land, out of which a lot in con- troversy is carved, is established, the identity of the premises may be shown by other proof, without the introduction of a map or plat of the survey of which the lot forms a part. Smith vs. Stevens, 82 111. 554. And the rule admitting evidence of a practical construction given by the parties to a writing, extends to evidence of such 680 IDENTITY acts in order to determine the ambiguous terms of a conveyance as the estate conveyed. Farnam vs. Thompkins, 171 111. 519. Although the subject matter of the contract is defectively set out in writing, extrinsic evidence is competent to show what was intended for the purpose of correcting the defect, and does not contradict or vary the contract, but only identifies the subject matter. Hedriek vs. Donovan, 248 111. 479; Clayton vs. Leman, 23.3 111. 435; Elwell vs. Hicks, 238 lU. 170. PERSONAL PROPERTY Subject Matter of Contract: A written contract must speak for itself as to terms, conditions and limitations of the agreement, but as to the parties and sub- ject matter of the contract, extrinsic evidence is always competent, if necessary, for their identitieation, without reference to the question of latent or patent ambiguity. Cumberledge vs. Brooks, 235 111. 249. Extrinsic evidence is always competent to identify the subject matter of a contract, if necessary; and this in no way violates the rule that parol proof is never admissible to vary or contradict the terms of a written contract. The admissibility of parol evi- dence, in such a case, does not depend upon the distinction be- tween patent and latent ambiguity. Bulkley vs. Devine, 127 111. 406; Marske vs. Williard, 169 111. 276. Parol testimony is admissible to apply a written agreement to the subject matter to which it relates, as, to show that the prop- erty mentioned in a contract was the same as that for which suit was prosecuted, when that is a material question. Eeed vs. Ellis, 68 111. 208; Marshall vs. Gridley, 46 111. 247. Where Subject of Sale: The onus as to identity of property sold by description, being the subject matter of the performance of the contract, is upon the vendor in action for the price. Morris vs. Wibanx, 159 111. 627; Wolf vs. Ditzsche, 75 111. 205; Scliilds vs. Eiebe, 9 App. 598. It is the rule of uniform application that parol or other extrin- sic evidence may be resorted to for the purpose of identifying the property sold. This does not infringe upon the rule that the written agreement cannot be contradicted, enlarged or varied by parol. Marshall vs. Gridley, 46 111. 247. Upon a sale of a "stock of goods" in a certain town, parol proof may be heard to show of what the stock was comprised. Knight vs. Parker, 25 111. 593. ]\Iarks, brands, and letters on stock and other property have been held by our courts to be evidence of identity and of owner- ship of such property. Ind. Brew. Co. vs. Cooke Co., 169 App. 347; Foster vs. Wadsworth Co., 168 111. 514; P. Ft W. & C. Ey. Co. vs. Callaghau, 157 111. 406. Where Subject of Mortgag-e: Parol evidence is admissible to identify the chattels included in a chattel mortgage. The description of the property will be IDENTITY 681 sufficient if it be so particular that it can be identifiocl as that described in the mortgage, and answers the general description. Pike vs. Colvin, 07 111. 227 ; Myers vs. Ladd, 26 111. 415. Where personal property is clearl.y described, but the lot of ground upon which it is situated is misdescribed, parol evidence would be admissible to establish the identity of the property, Spauldinjj vs. Mozier, 57 111. 148. Property Insured: A mortgage may properly be introduced in evidence in action on insurance policy as well as oral testimony, to identify property mortgaged and destroyed. Hartford Ins. Co. vs. Haddon, 28 111. 260. In suit on insurance policy, by wife, to recover for loss of goods embraced in policy, the company offered in evidence deed of assignment, made by husband of plaintiff, of a lot of hay and other property. Such evidence was irrelevant, without proof that the property so assigned was the same as included in the policy. Gcrniania Ins. Co. vs. McKee, 94 111. 494. Where Subject of Larceny: Burden is on prosecution to prove identity of property be- yond a reasonable doubt. Bishop vs. People, 194 111. 365, In prosecution for receiving and concealing alleged stolen prop- erty, the burden is on prosecution to prove identity of property received or concealed by accused as being same property alleged to have been stolen. Schultz vs. People, 210 111. 196. For the purpose of identifying kind of property stolen, simi- lar property, properly identified, may be placed in evidence by the state, Jupits vs. People, 34 lU. 516. Money must be proven as alleged, and sufficient to identify same. Williams vs. People, 101 111. 382 ; Vale vs. People, 161 111. 309. Proof of theft of gold certificate, silver certificates and national bank bills, called by witness "state bank notes," is not variance from indictment charging theft of treasury notes, national bank bills and greenbacks. Keating vs. People, 160 111. 480. Testimony that owner of property, described in indictment for larceny as treasury notes, national bank bills, greenbacks and gold and silver coin, had "130," consisting of "two fifties and three tens," is insuificient to identify the money as that charged to have been stolen. A^ile vs. People, 161 111. 309. MORTGAGE Parol evidence cannot be considered to vary or contradict a mortgage, but it is competent to identify the subject matter thereof referred to in general terms, and to show the situation, condition and mutual relation of parties, to make clear the mean- ing of the language which would otherwise be uncertain. Chambers vs. Prewitt, 172 111. 615. 682 ILLEGALLY OBTAINED EVIDENCE The identity of the mortgage assumed, when left in doubt by the terms of tlie deed, may be shown by parol evidence. Webster vs. Fleniinj?, 178 111. 140. ARBITRATION AND AWARD The identity of the subject matter of an arbitration and award may be shown by extrinsic evidence. Ilendrickson vs. Reinbach, 33 111. 299. ACTION Certified copy of judgment is admissible for purpose of estab- lishing prima facie the identity of the judgment recited in the bond without requiring a certified copy of all the proceedings. Eehm vs. Halverson, 197 111. 378. AYhere, after the usual praecipe and summons in an action of case, the plaintiff is non-suited for failure to file a declaration, the court cannot presume that a second suit brought thereafter for a personal injury was based upon the same cause of action as the first suit, nor is that fact capable of parol proof under the circumstances. Gilibs vs. Crane Elev. Co., ISO 111. 191. (See Fokmer Adjudication.) WILLS A subscribing witness attesting the signature to a will is no more e(5mpetent on the question wiiether anything has occurred to the will subsequent to the attestation tlian anybody else, and the proponent is not limited to the testimony of such witnesses as to its identity. Webster as. Yorty, 194 111. 408. ILLEGALLY OBTAINED EVIDENCE Admissibility : — Criminal Action: Though papers and other subjects of evi- dence may have been illegally taken from the possession of the party against whom they are offered or otherwise unlawfully ob- tained, it is no objection to their admissibility. Gindrat vs. People, 138 111. 103; Langdon vs. People, 133 111. 381; Siebert vs. People, 143 111. 571; Trask vs. People, 1.51 111. 523; Gates vs. People, 14 111. 433; Jacobs vs. People, 117 App. 195. — Civil Action: The same rule applies in civil actions. Mossman vs. Thorson, 118 App. 574; XII 111. Notes 489, § 106. IMMUNITY See Contested Elections, Contempt. Province of Court: Innuuuity is a question for the court. Minters vs. People, 139 111. 363. It is not the duty nor the right of the court to say or do any- thing which might prevent the witness from testifying if he sees proper. Eggers vs. Fox, 177 111. 185; Bolen vs. People, 184 111. 338. IMMUNITY 683 Right to Exercise Privilege: — In General: A witness is not bound to answer any question either in a court of law or equity, the answer to which will ex- pose him to any penalty, fine, forfeiture or punishment or which will have a tendency to accuse him of any crime or misdemeanor, or to expose him to any penalty or forfeiture or which would be a link in a chain of evidence to convict him of a criminal offense. Lamsou vs. Bpydeu, 160 111. (3l3; Miiitcrs vs. People, 139 111. 3G3; Boone vs. People, 148 111. 440; Taylor vs. Mclrwin, 94 111. 488; XIV 111. Notes, 1145, § 243. But to entitle a witness to his privilege of silence, court must determine from circumstances and nature of required evidence that there is reasonable ground to apprehend danger to witness if he produces the required evidence. Manning vs. Securities Co., 242 111. 584. — Who Entitled: The privilege cannot be interposed by either party to an action, nor can either party raise the objection on behalf of the witness. It must be claimed by the witness in order to be available, and it lies with him to claim it or not as he may choose. N. Y. life Ins. Co. vs. People, 195 111. 430; Samuel vs. People, 164 111. 379; Podolski vs. Stone, 86 App. 62. — Basis of Privilege: The constitutional privilege that no per- son shall be compelled to give evidence tending to incriminate himself cannot be claimed if, by reason of an immunity statute, the evidence cannot be used as a basis in aid of a prosecution which might result in fine, imprisonment, penalty or forfeiture. People vs. Butler St. Foundry, 201 111. 236. Privilege cannot be based upon an alleged immateriality of testimony called for. Harding vs. Amer. Glucose Co., 182 111. 553. If the proposed evidence has a tendency to incriminate the witness or to establish a link in a chain of evidence which may lead to his conviction, or if the proposed evidence will disclose the names of persons upon whose testimony the witness miglit be convicted of a criminal offense, or expose him to penalties or for- feitures, he cannot be compelled to answer. People vs. Argo, 237 111. 173; Bolen vs. People, 184 111. 338. And this rule is the same in actions civil in form. Eobson vs. Doyle, 191 111. 566; Hayes vs. Caldwell, 10 111. 34. Mere disgrace without danger of punishment is not enough to ground privilege upon. Moline Wagon Co. vs. Preston, 35 App. 358; Weldon vs. Burch, 12 111. 373. 'But where the criminal prosecution to which the answer of a witness might render him lialile has been barred by the Statute of Limitations, he cannot claim his privilege, but must testify. The bar of the statute will secure the witness a perfect defense. Prussing vs. Jackson, 85 App. 324; Weldon vs. Burch, 12 111. 373. It must affirmatively appear that no prosecution is pending against him at the time he is called. Lamsen vs. Boyden, 160 111. 613. 684 lAUVlUNITY — Production of Incriminating Documents: A defendant ex- cused from testifying cannot be compelled to produce criminating documents. Lanisen vs. Boyden, 160 111. 613; Manning vs. Securities Co., 242 111. 584; People vs. Western Assn., 40 App. 428. Though papers and other subjects of evidence may have been illegally taken from the possession of the party against whom they are offered, or otherwise unlawfully obtained, it is no objection to their admissibility. Gindrat vs. People, 138 111. 103; Langdon vs. People, 133 111. 381; Siebert vs. People, 143 111. 571; Trask vs. People, 151 111. 523; Jacobs vs. People, 117 App. 195; Gates vs. Peo^jle, 14 111. 433. — Waiver of Privilege: The privilege being personal, wit- ness may waive same and elect to testify. Mackin vs. People, 115 111. 312. The right of a witness in a criminal case to refuse to give evi- dence tending to criminate himself is not waived by the fact that he has signed an affidavit of the truth of the allegations in an information upon which the case is based, Samuel vs. People, 164 111, 379. A witness who, without claiming his privilege, understandingly discloses part of a transaction exposing himself to criminal prose- cution may, ordinarily, be compelled to state the entire transac- tion, but his disclosures made long before trial cannot be used for such purpose. Samuel vs. People, 164 111. 379. Offer of Immunity: The immunity offered must be broad enough to protect the witness against future punishment to which the evidence relates. People vs. Butler Street Foundry, 201 111. 236; Peoi^le vs. Argo, 237 111. 173. Truthfulness of disclosures cannot be made a condition. People vs. Butler Street Foundry, 201 lU. 236; Lamsen vs. Boyden, 160 111. 613. An immunity order issued under Section 35, Div. 1 of Criminal Code, to compel a witness to testify in a grand jury investigation does not compel the witness to answer questions tending to show his connection with oft'enses other than bribery, and he may, with- out being in contempt of court, refuse to answer such questions even though the answers might also tend to prove the offense of bribery. People vs. Argo, 237 111. 173. Grand Jury Investigations: The grand jury constitutes a part of the court, and their offi- cial acts in finding true bills or ignoring bills are borne into the records of the court, and witnesses sworn before that body are sworn in open court, though not necessarily in the presence of the judge. Boone vs. People, 148 111. 440; Samuel vs. People, 164 111. 379; Argo vs. People, 237 111. 173. Where a person in custody is taken from the jail before the grand juty and sworn and examined as to the very matters on which he is afterwards indicted, the indictment should be quashed on motion of defendant without any inquiry whether his testi- mony so obtained influenced the obtaining of the indictment or II\rPEACIIMENT^ 685 not, when it does not appear that the p^rand jury examined any other witnesses as to his eomplicity in I he crime for whieh he is indicted. Such attendance may be sliown by affidavit in support of mo- tion. Boone vs. People, 148 111. 440. But this does not apply to one not then accused of crime. Boone vs. People, 148 111. 440. Coroner's Proceedings: Privilege includes riglit to refuse to testify in coroner's pro- ceedings. Lvons vs. People, 137 111. 602. Creditors' Bill: The answer of a defendant to a creditors' bill to discover prop- erty fraudulently concealed and disposed of to hinder and delay creditors cannot be read in evidence against such defendant in indictment for fraud. Mitchell vs. Byi-ue, 67 111. 522. Gaming Losses: Under the statute upon bill filed for discovery, defendants, when called ui)on to make sworn answers, cannot refuse upon ground of immunity. Patterson vs. Scott, 142 III. 138. IMPEACHMENT See Affidavits for Continuance, Hearsay, Stenographer's Notes, Cumulative Evidence, Credibility, Former Conviction, Bias and Hostility, Cross Examination, Adverse Party. In General: ]\lere conflicting evidence on same subject does not constitute impeachment. Chi. City Ey. Co. vs. Eyan, 225 111. 287 ; Goodair vs. Ham. Nat. Bank, 225 111. 5*72 ; Baker vs. Eobinson, 49 111. 299 ; City of Galesbiirg vs. Higley, 61 111. 287; Peo|>le vs. Landes, 151 App. 181. Where plaintiff's witness was asked certain cpiestions on cross examination, for purpose of laying foundation to impeach him, and he is again called by plaintiff in rebuttal, after defendant has closed his testimony, and asked as to other matters merely in rebuttal, it is a matter of discretion with the court at that stage of the case to allow defendant to introduce evidence to impeach the witness. Gordon vs. Eeynolds, 114 HI. 118. Who May Be Impeached: — Own Wit)icsscs Generally: Where a party offers a wit- ness in proof of his cause, he thereby, in general, represents him as worthy of belief. He is presumed to know the character of the witness, and having thus presented hira to the court, the law will not permit him to impeach his general reputation for truth, or impair his credibility by general evidence tending to show him unworthy of belief. Ramsey vs. Whitlieck, 81 App. 210. 686 IMPEACHMENT — Adverse Pariy: Oiio cannot attack the credibility of the adverse party by direct impeachment, if he uses him as a witness. American' Hoist Co. vs. Hall, 20S 111. 597; Mitchell vs. Sawyer, 11.5 111. ()50 ; Bowman vs. Ash, 143 111. 649. But lie is not concluded by testimony nor bound by his con- clusions. Amer. H^oist Co. vs. Hall, 208 111. 597; Eidshoph vs. Kuder, 145 111. 607; Highley vs. Amer. Ex. Bank, 185 111. 565. — Direct InipeacJinient: A party, having called a v^dtness and had him testify, cannot thereafter introduce wliat is known as directly impeaching testimony. Amer. H. & D. Co. vs. Hall, 208 111. 597; Wicks vs. Walden, 150 App. 79; Marugg vs. Kells, 140 App. .'594; U.S. Brew. Co. vs. Kuddy, 104 Apj). 215; Affd., 203 111. 306; Eockwood vs. Poundstone, 38 111. 199; XW 111. Notes 1151, §286. And this though, after testifying, he may have been called by the opposite party. E. St. E. Ey. Co. vs. O'Hara, 150 111. 580. — Incideiital Impeachment: While a party may not intro- duce witnesses to impeach the general reputation of his own wit- ness, yet if the latter has testified against the interest and expec- tation of party calling him, his testimony may be contradicted by other witnesses called by the same party for that purpose, though, incidentally, the effect of the testimony last called may be to show that the previous v\^itness was unworthy of credit. People vs. Lukosziis, 242 111. 101 ; Chi. City Ey. Co. vs. Gregory, 221 111. 591: Highley vs. Amer. Bank, 185 111. 565; E. D. L. Co. vs. Kuder, 145 111. 007; Eockwood vs. Poundstone, 38 HI. 199; Pegram vs. Mut. Ins. Co., 159 App. 214; Briggs vs. Keplinger, 159 App. 265; Kanfmann vs. Johns, 156 App. 426; People vs. Paul, 143 App. 566; Waller vs. Carter, 8 App. 511; XIV 111. Notes 1151, 8 287. — Befreshing Memory: If a witness gives testimony different from previous statements, so that liis testimony is a matter of surprise to party calling him, the party may refresh his memory by calling his attention to the former statements, either to re- iresh his memory or awaken his conscience. People vs. Cotton, 250 111. 338; People vs. Lukoszns. 242 HI. 101. But he cannot prove the statements either as independent evi- dence or for purpose of impeaching the witness, who denies hav- ing made them, or who has not misrepresented the nature of his intended testimony. Chi. City Ey. Co. vs. Gregory, 221 111. 591; Griffin vs. City of Chicago, 57 HI. 317. So when a witness has not given adverse testimony the party calling him is not permitted to prove that he had made statements wliich if sworn to at the trial would tend to make out the ease of party calling him. r -• -•' Marugg vs. Kells, 146 App. 394. — Witnesses Whom Party is Gom,pelled to Call: Party may impeach a witness whom he is compelled to call. In re Barry, 219 111. 391; Thompson vs. Owen, 174 111. 229. — Using Opposite Party's Deposition: Where a deposition is introduced and read on trial by the opposite party, the party whose deposition is taken becomes the witness of such opposite IMPEACHMENT 687 party, and as sucli may be impeached by the party originally tak- ing his (lei)osiliou. ^[pCoriiiick Maeh. Co. vs. Laster, 81 App. 316; Blooniington vs. Osterly, 139 111. 120. — Co-Plain fiffs: In suit in names of two for the use of one of them, in which the one not having interest testified against his co-plaintiff, it is competent to contradict or impeach him by other witnesses. Carey vs. Henderson, 61 111. 378. r— Absent Witness: A party to avoid a continuance, having admitted that a witness wouki swear to the facts stated in an affi- davit for continuance, cannot on the trial introduce evidence of admissions made outside of court by the witnesses whose testi- mony was referred to in affidavit, for purpose of impeachment. C. & A. Ey. Co. vs. Lannior, 19 App. 135; Helbig vs. Ins. Co., 120 App. 58; City of Aurora vs. Scott, 82 Ai>p. 616; Ey. Co. vs, Cottinsfhani, 44 App. 46. — Persons from Whom Witness Received Information: Where defendant, in action on benefit certilicate, draws out, on cross ex- amination of plaintiff, an admission that she had been told that a certain woman had reported having seen the missing husband of plaintiff within seven years after his disappearance, plaintiff is entitled to call witnesses to prove the reputation of such woman for truth and veracity was bad and that she had made conflicting statements of the matter. Kennedy vs. Modern Woodmen, 243 111. 560; Affg., 149 App. 471. Inconsistent Statements : — In General: AVitness may be impeached by prior incon- sistent statements. Dit'kerson vs. Heuryetta Coal Co., 251 111. 292 ; Brunhild vs. Traction Co., 144 App. 198 ; Dudley vs. Ey. Co., 153 App. 620 ; Ilelgesen vs. Chi. W. & L. Co., 156 App. 541. Statements outside of court, inconsistent with statements in court, are competent by way of impeachment. Dudley vs. Peoria Ey. Co., 153 App. 620; Jacobs vs. Electric Coal Co., 158' App. 286; Gedye vs. People, 170 111. 284; Chi. W. D. Ey. Co. vs. Ingraham, 131 111. 659; XIV 111. Notes 1157, § 325. Statements made outside of court, and concerning a material question, inconsistent with testimony given in court, are admis- sible for purposes of impeachment. Craig vs. Trotter, 252 111. 228. Contradictory statements made out of court are competent only by way of impeachment. Moore vs. A. E. & G. Ey. Co., 150 App. 484. Previous statements by a party or a witness, particularly when not made under oath, are admissible and have force or potency only to impeach the party's or the witnesses' testimony, or the party's position in the cause, and have no assertively probative value to prove or disprove the original fact in issue. Johnson vs. Fairlmnk Co., 156 App. 381; Peyton vs. Village of Mor- gan Park, 172 111. 102; Chi. City Ey. Co. vs. Manger, 128 App. 512. Evidence as to what a witness may have sworn to on a former trial, is only competent for purpose of affecting his credibility, and can not be used to prove the facts previously sworn to. Eaflferty vs. People, 72 111. 37. 688 IMPEACHMENT Former inconsistent statements affect credibility and not com- petency of witness. Fuhry vs. Chi. City Ey. Co., 239 111. 548. Incompetency of evidence as substantive proof does not ren- der it irrelevant for purposes of impeachment. Kogers Grain Co. vs. Jones, 145 App. 4G9. See Former Testimony, Stenographer's Notes. — Preliminary Proof: A foundation must be laid to render impeaching evidence admissible. Eedman vs. Holly, 10 App. 202; Benedict vs. Dakiu, 148 App. 301; Quincy Ey. Co. vs. Gnuse, 137 111. 264 ; Winslow vs. Newlan, 45 111. 145. Evidence to impeach a witness must be offered specially for that purpose. Davis vs. Gibson, 70 App. 273. Cannot show perjury as impeaching a witness by affidavits. C. & E. I. E. E. Co. vs. Stewart, 104 App. 37. To render prior oral statements admissible in impeachment, wit- ness' attention must be called to same, with a specification of time and place where such statements were made. Hirsch & Sons vs. Coleman, 227 111. 149; I. C. Ey. Co. vs. Wade, 206 111. 523 ; A. T. & S. F. Ey. Co. vs. Feeban, 149 111. 202 ; Anneals vs. People, 134 111. 401 ; Helgesen vs. Chi. W. & L. Co., 156 App. 541. And in such a way as to give him full opportunity for explana-' tion. Helgesen vs. Chi. W. & L. Co., 156 App. 541. But strictness as to time, place and words of statement is not required. Eitzman vs. People, 110 111. 362; I. C. Ey. Co. vs. Wade, 206 111. 523. And words need rot be verbatim. Math vs. City of Chicago, 243 111. 114. A question containing substantially the varying statements al- leged to have been made, sufficiently lays a foundation. Math vs. City of Chicago, 148 App. 379. Where witness is party to suit, prior statements are admissible [without laying foundation. McCoy vs. People, 71 111. Ill; Common vs. People, 39 App. 31; Freel vs. Amer. Elec. Co., 257 111. 248; Johnson vs. Peterson, 166 App. 404. Next friend is not a party within the rule. Buck vs. Maddock, 167 111. 219. Prosecutrix in bastardy proceedings is not party within rule. Johnson vs. People, 140 111. 350; Overruling McCoy vs. People, 71 111. 111. Contradictory statement in writing cannot be introduced with- out asking the witness if he wrote it. P. F. Trans. Co. vs. O 'Neal, 41 App. 423 ; Sekel vs. York Natl. Bank, 57 App. 579. When the supposed contradictory statements are reduced to w^riting by the witness or signed by him, a sufficient foundation is laid by showing the paper to the witness, allowing him to inspect it and read it, and proving by him or others that the signature thereto is his genuine signature. I. C. Ey. Co. vs. Wade, 206 111. 523. Where it is sought to impeach a witness by showing that pre- viously in giving an account of transaction, he said nothing about a certain matter testified to by him, and the only foundation laid IMPEACHMENT 689 for the contradiction was to ask witness whether he had given the same version of the occurrence on both occasions, and his answer that he had, it was held that the proper foundation was not laid, that witness should have been asked specifically whether he omit- ted the statement which was offered to be proved, before contra- dictory evidence could be received. N. W. R. R. Co. vs. Hack, 66 111. 238. If the (luestion propounded to an impeaching witness is variant from the one put to the witness sought to be impeached, objec- tion should be made thereto on that specific ground, so that the form of the question may be changed to suit the phraseology of the first interrogatory. Chi. West. Div. Ry. Co. vs. Ingrahaiii, 131 111. 659. Court may permit the recalling of a witness for purpose of laying foundation for impeachment. Anneals vs. People, 134 111. 401; Wilson vs. Genseal, 113 111. 403. Party cross-examining witness does not make him his own by recalling him to ask impeaching questions. Scluiltz vs. Reid, 122 App. 420. In common fairness to a witness whom it is attempted to im- peach, by showing that at another time and place he stated what, on his exandnation, he declares he did not remember, the ques- tion put to witness called to show such statement, should be iden- tical, or at least substantially identical with the original question. Gormley vs. Hartray, 105 App. 625. — When Witness Does Not Recollect: When a witness is asked whether he made statements dift'erent from his testimony on the trial, and the time and place and language are specified, and he states he does not recollect it, the other party may call witnesses to prove that he did make such statements, and it is error for court to reject such impeaching evidence. Wood vs. Shaw, 48 111. 273; Ray vs. Bell, 24 111. 444. Where witness does not recollect having made prior alleged inconsistent statements, his deposition containing alleged state- ments is, nevertheless, admissible in impeachment. Con. Ice Machine Co. vs. Keifer, 134 111. 481. — As Belative to 3Iaterial Matters: The alleged inconsistent statements must be in reference to a matter material to the con- troversy. Nan vs. Standard Oil Co., 154 App, 421 ; Central Ry. Co. vs. Allmon, 147 111. 471. The statement of a witness, made out of court, orally or in writing, if contradictory on a material point, to his sworn state- ment as a witness, may be introduced in evidence, not as substan- tive proof of the truth of such statement, but as tending to dis- credit the witness. Moore vs. Anrora Ry. Co., 150 App. 484. It is not proper practice to permit a party to ask questions touching irrelevant matters, and then prove the witness has made different statements concerning them, for purpose of impeaching him. Sconce vs. Henderson, 102 111. 376, Ev.— 4 4 ■'-■' 690 IMPEACHMENT Evidence elicited on cross examination upon qiiestion not in issue cannot be made the foundation of contradiction or impeach- ment. C. & E. I. E. E. Co. vs. Stewart, 104 App. 37; L. E. & W. E. E. Co. vs. Morain, 140 111. 117. Evidence offered for purpose of impeaching a v^dtness on ground that he made statements out of court contradicting his testimony is properly rejected where it relates to matters wholly immaterial to issue being tried. Benedict vs. Dakiu, 243 111. 384; Armstrong vs. Van De Neste, 132 App. 601. _.; - -[^ _ ; ,,,,..,_ Declarations and statements of a witness, iVicbii'sistent with his testimony, are not admissible in evidence to impeach him, unless his testimony relates to matters material to the issue. G-ordon vs. Eeynolds, 114 111. 118. To discredit the statements of a witness for the petitioner, as to. depreciation in value of defendant's farm, it is not competent to show that the witness had previously stated in a conversation with a certain person that he would not have a railroad run through his farm for a certain sum an acre. Prather vs. Chi. Sou. Ey. Co., 221 111. 190. Where a Mdtness is asked, on cross examination, whether he had made a particular statement before the trial, which is incompe- tent, as not relating to anything he testified to on his direct exam- ination, and collateral, his answer must be taken as conclusive and cannot be contradicted by other witnesses. C. E. I. .^i P. Ey. Co. vs. Bell, 70 111. 102. It is not error to refuse to allow a witness to testify to alleged admissions of party to suit for purpose of impeachment, where it does not appear the denial was made in manner indicated by ques- tions propounded or where the matters referred to are not material. N. Chi. St. Ey. Co. vs. Southwick, 165 111. 494. It is competent for a party to produce testimony to contradict material statements of adverse party, though such statements do not relate, dii'eetly, to the matter in issue between the litigants. Chi. City Ey. Co. vs. Allen, 169 111. 287. ni In action against street railway company for personal injuries, it is prejudicial error to attempt to impeach witness for plaintiff by showing promise of witness to go to office of defendant, and that he was served with a subpoena issued from office of defend- ant. Cairns vs. Sampsell, 158 App. 415. — Written Statements Generally: If contradictory statement is in writing, question as to its contents, without production of the instrument itself, is ordinarily inadmissi])le and a cross exami- ation for the purpose of laying foundation for its use as impeach- ment would not, except in special circumstances, be allowed until the paper was produced to be shown to the witness while under examination. Before the- adndssion in evidence of the paper con- taining the previous statements, all the evidence adduced by either party, touching its making, its integrity and its admissibility should be heard, and out of the presence of the jury. AVhen the previous statement involved is in writing, or is type- written and signed, the necessity for a foundation upon which IMPEACHMENT 691 its admissibility may ho placed still remains. The impeaching evi- dence not being- verbal, but written, the required foundation is eonse(iuently necessarily somewhat changed in its character. The genuineness of the written statement must be established before it can be admitted in evidence. Proof of the handwriting of the signature is but one step in that direction. If any changes, alter- ations or interlineations appear, the party offering the paper must show that these were made prior to the signing of the paper or with the consent of the witness, before the statement is admissible in evidence. It is the duty of the party proposing to impeach the witness by the introduction of such previous statements to call the witness' attention to that statement so that in proper season there may be an opportunity for explanation, if any there be, of the inconsistency. Helgesen vs. Chi. Sub. W. & I. Co., 156 App. 541; Smith vs. Young, 179 App. 364. The proper time for reading a paper containing an inconsistent statement of witness for defendant, is when plaintiff presents his evidence in rebuttal, and not on cross examination of witness, but the latter course is not gi'ound for reversal. Chi. City By. Co. vs. Matthicson, 212 111. 292. Writing containing statements of witness is admissible, though he denies hearing some of it read_ oyer to him at time of signing same. ► - . : » Couover vs. Harrisbnrg Coal Co., 161 App. 74. I When witness repudiates paper, introduced as containing incon- sistent statements, and denies knowledge of contents, though ad- mitting the signature, the paper is not admissible in impeachment vrithout showing witness understood its contents and they were the same as when signed. Belskis vs. Bering Coal Company, 246 111. 62. And such paper is properly excluded in absence of any coun- tervailing evidence in relation to same, and the circumstances under which it was signed. Belskis vs. Dering Coal Company, 151 App. 85. If on cross examination of witness, he is presented with a writ- ten statement and asked if the signature thereto is not his, which he admits, it is proper for court to refuse to allow inquiry of him as to its contents. Party has a right to call attention of witness to statement, for purpose of putting it in evidence as a matter of impeachment, but not to inquire as to its contents. Momence Stone Co. vs. Groves, 197 111. 88. Refusal to admit a paper containing statements conflicting with the testimony of a witness is not prejudicial, where the wit- ness admits that he signed the paper and questions and answers are read from the paper by counsel in presence of .iiiry. Moore vs. A. E. & C. Ry. Co., 246 111. 56; C. & E. I. E. E. Co. vs. Crose, 214 111. 602. Statements signed by a witness, which contradict his testimony, are not admissible in evidence when, after being read in detail to the witness, he admits that he made the contradictory state- ments therein set forth. Swift & Co. vs. Madden, 165 111. 41. 692 IMPEACHMENT A writing also signed by others than witness sought to be impeached is incompetent, and offer to omit all signatures other than that of witness does not render same admissible. Dickirsoii V8. Henryetta Coal Co., 158 App. 454. Where a witness has signed a statement out of court in con- flict with his testimony on the trial, and such fact is relied upon to impeach his credibility, it is proper to allow him to explain his signing of the statements, in so far as he states facts within his knowledge. Hirsch & Sons vs. Coleman, 227 111. 149; Chi. City Ey. Co. vs. Hast- ings, 136 111. 251. A writing containing other matter than that which relates di- rectly to the impeachment of the witness is inadmissible. Dickirson vs. Henryetta Coal Co., 158 App. 454. A general objection to the admission in evidence of a writing offered as impeaching proof does not present for review the ques- tion whether part of the statements contained therein were in- admissible as being mere opinions, if the writing was admissible for any purpose. I. C. E. E. Co. vs. Jordon, 206 111. 523. The evidence of a witness, taken at a coroner's inciuest is com- petent by way of impeachment where he signed same and ad- mits same and admits such signing. Chi. City Ey. Co. vs. Jordan, 116 Apj^. 650. While a prior written statement of a witness at variance with his testimony on the trial is proper to be used and under some circumstances may be put in evidence after the attention of the witness has been called thereto, such statement cannot be used as affirmative evidence, and where it contains matters of opin- ion, the party against whom it is used should be protected from harm by appropriate instructions. Nelson vs. N. W. El. Ey. Co., 170 App. 119. A written statement which has been used for impeaching pur- poses should not be taken by the jury. Johnson vs. Fairbanks Co., 156 App. 381 ; Dimn vs. People, 172 111. 582; Eainforth vs. People, 61 111. 365; Smith vs. Wise & Co., 58 111. 141; Fein vs. Cov. Ben. Assoc, 60 App. 274. — Effect of Admission or Denial of Statement : Where a proper foundation has been laid for introduction of impeaching evidence, if witness admits he made the contradictory statements imputed to him, as fully as it is claimed, further proof of such fact may not be necessary, but if he denies or does not directly admit that he made the statements, the impeaching proof should be permitted to be given. I. C. E. E. Co. vs. Wade, 206 111. 523. And so, where such admission is made fully as to alleged state- ment, it is not error to refuse to permit the impeaching evidence. Swift & Co. vs. Madden, 165 111. 41. If a witness admits the declarations or statements imputed to him, the proof on the other side becomes unnecessary, and the witness has the opportunity of giving such reason, explanation, or exculpation of his conduct, if there be any, as the particular transaction may happen to furnish, and thus the whole matter is brought before the court at once. When the witness admits IMPEACHMENT 693 making the previous contradictory statements, no further proof of that fact is necessary. Hirsch Co. vs. Coleman, 227 111. 149; A. T. & S. F. Ey. Co. vs. Feehaii, 149 111. 202; Fesseiulen vs. Dean, 89 App. 229; A. T, & S. F. li. K. Co. vs. Feeban, 47 App. 66. Where a witness, when asked as to making other statements inconsistent or at variance with his testimony, neither directly admits nor denies it, but states he does not know or recollect, or gives any other indirect answer not amounting to an admission, it is competent to prove the affirmative, by way of impeachment. Bressler vs. People, 117 111. 422. If a witness, in answer to a question as to what testimony he gave on a former trial neither directly affirms nor denies giving the declaration spoken of, it is then competent for adversary to prove the affirmative, providing, however, the act or statement is relevant to the matter in issue. CM, City Ry. Co. vs. Mattliiesou, 212 111. 292; Eay vs. Bell, 24 111. 444. Where a witness, on cross examination, denies or does not ad- mit making, at a set time and place, a statement in conflict with his testimony, a witness called to impeach him in that respect should be asked directly whether at the time and place such wit- ness did so state, as the entire conversation cannot be called for by the impeaching party. Mauehester Ins. Co. vs. Ins. Co., 91 App. 609. Foundation for introduction of written statement having been properly laid by defendants, the proper time to offer the papers as impeaching evidence is when it comes his turn to offer evidence. Chi. City Ey. Co. vs. Manger, 128 App. 512; I. C. E. E. Co. vs. Wade, 206 111. 523. — Pleadings: Pleadings are not admissible to contradict or impeach a witness not a party to the suit. Harrison vs. Tliaekaberry, 248 111. 512. — Letters: Letters written by party to suit to third party are admissible to impeach such party. Dick vs. Marble, 155 111. 137. Letter of recommendation admissible to impeach writer testi- fying against servant. Western Mf. Ins. Co. vs. Bonghton, 136 111. 317. — Affidavits: A witness may be impeached by proof of an affidavit containing contradictory statements. Stone vs. Cook, 79 111. 424; VonGlanz vs. YonGlanz, 46 111. 134. Impeaching affidavit may be read to witness. Fein vs. Benefit Assoc, 60 App. 274. Affidavits of subscribing witnesses in county court may be in- troduced by proponents of will to contradict their testimony. In re Will of Barry, 219 111. 391 ; Thompson vs. Ovren, 174 111. 229. To admit affidavit of subscribing witnesses to will, for pur- pose of impeachment, the affidavit should be produced and atten- tion of witness specifically called to such parts of it as is thought his testimony contradicts. In re Noble, 124 111. 266. 694 IMPEACHMENT To rentier an affidavit of a witness admissible in evidence for purpose of contradicting- or impeaching his testimony given by deposition, the affidavit must have been produced on his exami- nation and his attention called to such parts as are- claimed to be contradictory of his testimony. It is not sufficient to ask him, generally, if he has not made certain contradictory statements, in re Matter of Noble, 124 111. 2(56. In civil action for assault and battery, an affidavit by defend- ant, made in a prior criminal trial for same assault, and contra- dictory of defense in civil action, relating to same subject matter, is admissible on cross examination of defendant, to impeach his credibility as a witness. Wilson vs. Genseal, 113 111. 403. • — Depositions: Depositions used at former trial, containing questions and answers similar to those used, is admissible. Mygreen vs. Smith, 162 App. 276; Bartolletti vs. Int. Bank, 119 111. 259. A witness may be impeached by establishing an inconsistency between his testimony at the trial, and the contents of a deposi- tion sworn to by him. So the evidence of a witness, taken before a coroner, may be used to contradict the evidence of same witness, subsequently given. Chi. City Ry. Co. vs. McLaughlin, 146 111. 353. Where impeaching evidence is given as to a witness' statements contradictory to his testimony in a. deposition, he should be per- mitted to be recalled and examined as to such statements, although his attention may have been called to them in his deposition, and he therein testified that, to the best of his recollection, he made no such statements. Eobertson vs. Brost, 83 111. 116. .,^, — Opinions as Admissions: If a witness has simply testified to a matter of fact, his previous opinions as to merits of the cause cannot be regarded as relevant to the issue. Hence, questions put to him on cross examination, with view to laying foundation for his impeachment, should be directed to matters of fact only, and not to mere opinions which he has formerly expressed. The latter are inadmissible, unless the case is one where evidence of opinion is material. Central Ey. Co. vs. Allmon, 147 111. 471. A previously expressed opinion, not necessarily inconsistent with truth of an assertion made in witness' testimony, is inadmissible, Johnson vs. Fairbanks Co., 156 App. 381. Prior admissions of witness, in relation to questions of law, are inadmissible. Johnson vs. Fairbanks Co., 156 App. 381. "Where witness on cross-examination, is asked if he had not had certain conversation and he denies it, after the impeaching wit- ness has testified to conversation but not embodied in language of question, impeached witness should be permitted to give in rebuttal his version of conversation. aiisholm vs. Nat. Bank of Leroy, 176 App. 382. — Bif/ht to Explain: When witness admits making prior state- ments, he may explain why his present testimony differs, but if IMPEACIDIENT 695 he denies that he testified differently, he may, nevertheless, be con- tradicted. Hoge vs. People, 117 Til. ,'5.5. — Competency of impeaching Witnesses: It is competent to prove by the members of the grand jury that a witness testiiied diflPerently before that body from his testimony on the trial, where proper foundation is tirst laid. Teople vs. Nail, 2A'l 111. 284; Hoge vs. People, 117 111. 35; Bref^slcr vs. People, 117 ill. 422. Permitting' a witness, who remained in court in violation of an order to exclude witnesses, to testify in impeachment of a witness who testified during presence of impeaching witness rests in dis- cretion of court. Wilson vs. Genscal, ll.S 111. 403; BuUiner vs. People, 95 111. 394. Impeachment by Reputation: — As to General Rcpuiaiion: A witness is usually impeached by proving by other witnesses that his character for truth and ver-- acity among his neighbors is so bad that he is unworthy of belief. AVhile such is the usual mode of impeachment, yet a witness, from his relationship to the parties, his manner and appearance on the stand, of his evident bias in favor of one of the parties may warrant jury in the conclusion he is unworthy of belief. Corgan vs. Frew, 39 111. 31; Eankin vs. Crow, 19 111. 626; Hansel vSi Erickson, 28 111. 257; C. W. E. K. Co. vs. Burt, 69 111. 388. Impeaching testimony should be confined to general reputation. Doner vs. Peojile, 92 App. 43. It is only the general character of a witness for truth and ver- acity that should be inquired into upon impeachment of his testi- mony. ' Frye vs. Bank of Illinois, 11 111. 367 ; Hansel vs. Erickson, 28 111. 257. And the inquiry should be confined to his general character foi^ truth and veracity in all cases except in prosecutions for rape, assault with intent to commit rape, and indecent assault, where character of prosecutrix for chastity may be inquired into. People vs. Goodrich, 251 111. 558; Dinunick vs.- Downs, 82 111. 570; Eobertson vs. McGarity, 28 111. 243. That life of witness was immoral and dissolute does not neces^ sarily impeach his testimony. Painter vs. People, 147 111. 444. ]Mere fact that witnesses are not exemplar}^ citizens does not justify discrediting their testimony. People vs. McCann, 247 111. 130. > That reputation for honesty and prompt payment of debts was bad is inadmissible to impeach. Eggniaa vs. Nutter, 155 App. 391. The general bad character of witness cannot be shown. Corgan vs. Frew, 39 111. 31; Flansborg vs. Basin, 3 App. 531. Particular instances of falsehood cannot be shown. Laclede Bank vs. Keeler, 109 111. 385. Opinion as to reputation must be based solely on general repu- tation and not on particular facts. Massey vs. Farmers Bank, 104 111. 327. 696 IMPEACHMENT Expert testimony cannot be impeached by proof of expert's gen- eral reputation, as a physician. City of Beardstown vs. Snuth, 52 App. 46. — As to Farticular Acts: Reputation cannot be impeached by proof of particular acts. Massey ^•s. Bank, 104 111. 327; Addison vs. People, 193 111. 405; Frye vs. Bank of Illinois, 11 111. 367. To show an alibi in a criminal case, defendant called as a wit- ness the former clerk of a hotel, and proved by him that he saw defendant at the hotel on the morning after the larceny, between four and five o'clock. The People then introduced evidence to show that witness was discharged as a hotel clerk, a day or so be- fore the time so spoken of, for drunkenness. This was not done to contradict the witness by showing his absence, it being conceded that he was at the hotel at the time, but it was the evident purpose thereby to impeach him. Court erred in admitting the evidence, as witness could not have been impeached in this way. If hie rep- utation for truth and veracity were bad, that fact should have been proved. Why his employer discharged him was immaterial. Hoge vs. People, 117 111. 35. — Form of Question: The regular mode of examining into the general reputation is to inquire of witness whether he knows the general reputation of the person in question among his neighbors, for truth and veracity, and what that reputation is. Laclede Bank vs. Keeler, 109 111. 385; Dimmick vs. Downs, 82 111. 570; Foulk vs. Eckert, 61 111. 318. The proper inquiry is whether witness knows the general repu- tation of the persons sought to be impeached or sustained, among his or her neighbors, for truth and veracity, which question the witness must answer in the affirmative before he or she can be asked what that reputation is. Gifford vs. People, 148 111. 173; Dowie vs. Black, 90 App. 167; Crab- tree vs. Hageubaugh, 25 111. 233. ''Are you acquainted with plaintiff's general reputation for truth and veracity among his neighbors and friends and business associates in the city of Chicago?" Held proper. Banker vs. Ford, 152 App. 12. ;!iui I It is not compulsoTy to ask of a witness, who has testified to his knowledge of general reputation of another witness, whether or not he would believe him on oath. Bank vs. Keeler, 109 111. 385. To ask of impeaching witness "would you believe him under oath," is improper and inadmissible, where not based upon rep- utation. Doner vs. People, 92 App. 43. After witness has stated that he knows the general reputation for truth and veracity, of person sought to be impeached, and has stated that reputation is good or bad, the further admissible ques- tion is "from that reputation" or "judging by that reputation, would you believe him under oath," Doner vs. People, 92 App. 43. Where it is shown that the general reputation of a witness among his neighbors for truthfulness is bad, it is erroneous to re- IMPEACHMENT 697 fuse to allow impeaching witness to answer whether he would believe such witness on oath. Easoii vs. Chapman, 21 111. 33; Laclede Bank vs. Keeler, 109 111. 385; Massey vs. F. N. Bank, 104 111. 3l'7. But it is optional with party to ask such question. Laclede Bank vs. Keeler, 109 111. 385. — As to Interest in Case: Evidence is not admitted of partic- ular facts and the opinion allowed to be expressed is to be based solely on general reputation and not on particular facts. Opin- ions not founded upon general reputation alone, but which also include interest in the case of the party sought to be impeached, are inadmissible. The effect of interest upon the credibility of testimony is solely for the consideration of the jury and no wit- ness should be allowed to pronounce upon it. The naked question, whether, from defendant's interest in the case, the witness would believe him on oath could not be justified. There should not be given the opinions of witnesses upon the discrediting effect of in- terest in whole or in part upon testimony. Dowie vs. Black, 90 App. 167. In impeachment of party who had testified in his own behalf, witnesses were asked, after stating their knowledge of his reputa- tion for truth and veracity, ''From that reputation would you, or not, in a case where he was actually interested, believe him under oath ? " to which, reply was made that if he were interested, witness would hesitate to believe him. It was' held error to allow question to be answered against objection. Massey vs. Farmers' Natl. Bank, 104 111. 327. — Necessity of Ecsidence at Place Where Reputation Exists: If a witness had resided long enough in a neighborhood to mnke a reputation for truth and veracity that is known by his neighbors, it may be shown by way of impeachment, although he does not, at the time, reside in such neighborhood, but elsewhere. Blackburn vs. Maun, 85 111. 222; Holmes vs. Statler, 17 111. 453. Nor does the fact that witness has not lived in that neighborhood for years render testimony of former neighbors too remote. Kennedy vs. Modern Woodmen, 243 111. 560. Evidence as to general reputation for truth and veracity, of wit- ness who has resided at a particular place long enough to have established a reputation, is admissible. Kirkham vs. People, 170 111. 9. General reputation at former period and in another neighbor- hood, admissible. Brown vs. Leuhrs, 1 App. 74. Reputation not necessarily limited to immediate neighborhood of witness. Hope vs. West Chi. St. Ey. Co., 82 App. 311. — Impeaching Witness' Knowledge: A witness, to testify that he will not believe a man under oath, must first be shown to have knowledge of the man's reputation. Spies vs. People, 122 111. 1; Dowie vs. Black, 90 App. 167. 698 IMPEACHMENT Impeaching witness must be able to say what is generally said of person among his associates. It is not enough that he merely state what he has heard others say, for they may be few. Crabtree vs. Kile, 21 ill. 180. A witness, called to impeach general character of another for truth and veracity, should be asked if he is acquainted with general reputation of such witness, in his neighborhood, for truth and ver- acity, and he nuist answer in the affirmative before he can testify to his character for truth; but, although he may be asked as to his character before he has stated he knew it, there can arise no harm when he answers he does not know how the neighbors regard the witness in regaixl to his truthtulness. Foulke vs. Eckert, 61 HI. 318. The good reputation of a witness may be known without his being discussed. Overstreet vs. Dunlap, .56 App. 486; Hays vs. Johnson, 92 App. 80. 'Evidence that witness was not acquainted with rei)utation of person sought to be impeached, but he had never heard it assailed, cannot be considered. Magee vs. People, 139 111. 138. Where a witness is called to impeach another, and states he is acquainted with the witness sought to be impeached, it is error to refuse to allow the witness to answer the question that he is acquainted with the general reputation of the witness for truth and veracity among his neighbors, and those with whom he asso- ciated. It is not essential for impeaching witness to say he has heard the majority of the neighbors speak of his character for truth and veracity. The question is proper, and if witness states he is so acquainted, and the reputation is bad, then the party may incjuire into the extent of the impeaching witness' information and means of knowledge on the cross examination. Crabtree vs. Hagenbaugh, 25 111. 233 ; Dowie vs. Black, 90 App. 167. A witness cannot be impeached by proof of the individual knowl- edge of a witness of his or her character, but must be by proof of general reputation. Gifford vs. People, 148 111. 173 ; Chicago vs. Giirncll, 137 App. 377. And if witness voluntarily^ expresses his opinion thereon, same should be stricken out. Gifford vs. People, 148 111. 173; Foiilke vs. Eckert, 61 111. 318. — Competency of Impeaching Witnesse.^: It is not essential that impeaching witness' knowledge be as to the reputation at exact time of trial. Hope vs. West Chi. St. Ey. Co., 82 App. 311. AVhen witness has established a new domicile, and resided there long enough to establish a reputation, impeaching witnesses living at place of his former domicile may testify as to his general rep- utation. ^ Kirkhain vs. People, 170 111. 9. Eeputation of person may be shown by persons acquainted in the community in which he is known, though such persons are not his innnediate neighbors. Banker vs. Ford, 1.52 App. 12. INCEST 6&9 Impeachment of Impeaching Witness: As a general rule, tlie general character of an iiiipeachiug wit- ness cannot be attacked. Kictor vs. Kictor, S 111. 105; Dimick vs. Downs, 82 111. 570. Cross Examination: ^Vlleu an impeaching witness has testified to general reputation the adverse party may cross examine him as to his means of knowl- edge and the grounds of his opinion. i, Dowie vs. I'.luck, '.)() App. Uil. Conviction of Infamous Crimes : That witness was convicted of an infamous crime may be shown as affecting his credibility. Baily vs. Bcall, 251 111. 577; People vs. Blevins, 251 111. 381; Mc- Keavitt vs. People, 208 111. 460; XIV 111. Kotes 1153, §303. See Former Conviction. A witness cannot be impeached by showing that he has been ar- rested or that he has been charged with crime. It may be shown that he has been convicted of a felony, but not that he had been indicted, only. And cross examination as to indictment and arrests is error. People vs. Newman, 261 111. 11. INCEST Corpus Delicti: — Consent of Female: Is not essential to constitute the crime of incest in the male. David vs. People, 204 111. 479. — Legitimacy: JMarriage to the mother, or legitimacy of the child is not of the gist of the inquiry. Bersjen vs. People, 17 111. 426. Admissibility of Evidence: Admission of the accused that the person witli whom he had sexual intercourse was his daughter by a former wife is competent. Bergen vs. People, 17 111. 426. It is competent for a daughter of the accused to testify as to her mother's name, that her father and motlun' always treated each other as though they were married, and as to tlie age of her father and prosecutrix. Bolen vs. People, 184 111. 338. Proof of complaint by the victim is inadmissible. People vs. Turner, 260 111. 84. Acts between the same parties, 'other than those charged, may be proven. David vs. People. 204 111. 479; Bolen vs. People, 184 111. 338; Cf. Janzeu vs. People, 159 111. 440. rv Though occurring through a course of years. People vs. Turner, 260 111. 84. Proof of three acts on same date does not require a further elec- tion of offenses. People vs. Turner, 260 111. 84. Accomplice : An accomplice is one who is associated with another in the com- mission of a crime, and the test whether a person is an accomplice is whether he or she could be indicted for the offense. Daughter is not accomplice and instruction as to care and caution in re- ceiving her testimony is improper. People vs. Turner, 260 111. 84. 700 INFANTS INFANTS See Adoption, Parent and Child, Age, Trusts, Deeds, Dom- icile. INFANTS AS WITNESSES. Age No Test of Competency: Intelligence, ability to comprehend the meaning of an oath, and the moral obligation to speak the truth, and not age, are the tests by which to determine the competency of a child to testify. Shanuou vs. Swanson, 208 IlL 52; Draper vs. Dra])er, 68 111. 17; Epstein vs. Berkowski, 64 App. 498; McLean vs. Chicago, 127 App. 489; XIV 111. Notes 1113, § 25. If the preliminary examination of a child shows that she at- tends school, knows the difference between truth and falsehood, and that the oath binds her to tell the truth and that she would be punished if she failed to do so, it is not error to admit her testimony, the weight thereof being a matter for the jury. Sokel vs. People, 212 111. 238. Allowing a child of nine years of age to testify is not error. She testified on her voir dire that she "understood the nature of an oath, and that if she did not swear the truth she would get into hell fire," it was held that the intelligence and not the age was the test of competency of a witness of tender years, and that the witness was competent according to the most rigid rules. Draper vs. Draj^er, 68 111. 17. That a boy six years old was allowed to testify in a criminal case is not error if his preliminary examination shows that he understood the nature and meaning of an oath, but it is for the jury to say what weight shall be given his testimony. Featherstone vs. People, 194 111. 325. FACT OF INFANCY. Presumptions and Burden of Proof: — Civil Actimi: Where a party files a plea of infancy, he as- sumes the burden of proving his plea by a preponderance of the evidence. Goodwin vs. Acton, 97 App. 11; Peak vs. Pricer, 21 111. 164. — Criminal Action: If defendant asserts infancy as a defense, he is required to prove it, and an averment of age, being surplusage, need not be proven. People vs. Sclniltz, 260 111. 35; Sutton vs. People, 145 111. 279; Cf., Mark vs. Peoj.le, 204 111. 248. Admissibility of Evidence: See Age. CAPACITY. Presumptions : — Civil: The presumption is that infants do not know their rights. Tearney vs. Fleming, 48 App. 507. Against an infant, nothing will be intended. Preston vs. Hodgen, 50 111. 56. A boy thirteen years old, who is attending school, must be presumed to be of ordinary intelligence for one of his age. Heimann vs. Kinnare, 190 111. 156. INFANTS 701 — Criminal: Between the ages of ten and fourteen years infant is prima facie incapable and during this period the same burden is on People to prove his capacity as to prove any other material fact. It must be proven beyond a reasonable doubt. The fact can no more be inferred Avithout evidence than any other material fact. At the age of fourteen the law presumes capacity, without proof of knowl- edge of good and evil, but between these ages the evidence of that malice which is to supply age must be strong and clear beyond all reasonable doubt and contradiction, as the prima facie presump- tion is that the party is doli incapax. Angelo vs. People, 96 111. 209. Upon proof of. defendant being under age of fourteen the question will then arise whether he knew right from wrong and perhaps as to his physical ability to commit the crime. Sutton vs. People, 145 111. 279. INJURY TO PERSON OF INFANT. Contributory Neg-ligence : Up to the age of seven years a child is incapable of such con- duct as will constitute contributory negligence, and court may so declare as a matter of law in its instructions. Chi. City Ey. Co. vs. Tuohy, 196 111. 410; Chi. City Ey. Co. vs. Wil- cox, 138 111. 370; Hackett vs. Chi. City Ey. Co., 235 111. 116; Eiehardson vs. Nelson, 221 111. 254; Chi. City Ey. Co. vs. Gregory, 58 111. 226; XIII 111. Notes 948, § 96. Nor can the negligence of an eight year old boy in caring for his four year old brother upon the street be imputed to the lat- ter so as to defeat a recovery against one who negligently injures him. Perryman vs. Chi. City Ey. Co., 242 111. 269; Chi. W. D. Ey. Co. vs. Eyan, 131 111. 474. Above the age of seven years, evidence may be introduced as to capacity, discretion and judgment of infant and jury may con- sider his capacity. Kerr vs. Fogue, 54 111. 482; C. E. I. & P. Ey. Co. vs. Eininger, 114 111. 79; Chi. City Ey. Co. vs. Tuohy, 196 111. 410; City of Pekin vs. McMahon, 154 111. 141. Misrepresentation as to Age: The fact that a child employed by a manufacturing company falsely represents himself to be over fourteen years of age does not preclude him from maintaining an action to recover for his injury resulting from his unlawful employment, nor furnish a defense for his employer. Amer. Car Co. vs. Armentraut, 214 111. 509. Employer cannot prove that if child had correctly stated his age he would not have been employed. Amer. Car Co. vs. Armentraut, 214 111. 509. But anything the child might say about its age would be com- petent evidence to be considered by the jury in connection with all the evidence, as bearing upon the question of age, in suit wherein such child was party. Swift & Cc. vs. Eennard, 119 App. 173. 702 INFANTS Damages : Where deceased is a minor and leaves a father entitled to his services, law presumes there has been a pecuniary loss from his death. C. & E. T. R. R. Co. vs. Huston, 19G 111. 480; Savage vs. Hayes Bros., 142 App. 316. But where next of kin are collateral kindred of the deceased and have not been receiving from him pecuniary assistance and are not in a situation to re(iuire it, it is immaterial how near the relationship may be ; only nominal damages can be given. Ehoads vs. C. & A. E. R. Co,. 227 HI. 328; Romeo \s. Western Coal Co., 157 App. 67. A minor whose parents are dead and to whom no one stands in loco parentis, and who has been injured by the negligence of another, is entitled to recover damages for loss of time and diminution of earning capacity during minority. Mfg. Fuel Co. vs. White, 228 111. 187. LIABILITY FOR TORTS. Liability of Infant: An infant is liable for his torts the same as an adult. Wilson vs. Garrard, 59 111. 51. As for assault and battery. Hildreth vs. Hancock, 156 111. 618. Or trespass. Davidson vs. Young, 38 111. 145. Where a minor makes a pretense of purchase and obtains the delivery by fraud, he will be liable as in tort. Mathews vs. Cowan, 59 111. 341; Ashlock vs. Vivill, 29 App, 388; Davidson vs. Young, 38 111. 145. Liability of Parent: A parent is not liable for the torts of his children committed without his knowledge or consent, and not in the course of his employment or by his direction. Wilson vs. Garrard, 59 111. 51; Paulin vs. Howser, 63 111. 312; Dick vs. Swinsou, 137 App. 68; Malenberg vs. Bartos, S3 App. 481. In order to render a parent liable for the tort of his infant son, it is essential that it should appear from the evidence that he might reasonably have anticipated injury as a consequence of permitting such son to emjDloy the agency which produced the injury. Palmer vs. Ivorson, 117 App. 535. LIABILITY FOR NECESSARIES. Necessaries Defined: There is no positive rule by which it may be determined what are necessaries. Court should instruct the jury as to classes and general description of articles for which an infant is bound to pay. They, the jury, must determine whether they fall within any of the classes and whether they are actually necessary and suit- able to the estate and condition of the infant. Maloney vs. Perks, 169 App. 227; McKanua vs. Merry, 61 111. 177. Improvement of property is not. ' McCarty vs. Carter, 49 111. 53. Nor horse. Tuqua vs. Sholeni, 60 App. 140. INFANTS 703 Presumptions and Burden of Proof: An inl'ant may make a himling contract for necessary food, clothing and medical aid and education, and if unable to pro- cure them, others may furnish tliem and charge a reasonable price therefor. Jolinsou vs. Maples, 49 Til. 101. The implied contracts of an infant for necessaries are binding upon him. Cole vs. Pennoyer, 14 111. 158; Hunt vs. Thompson, 4 111. 179. But the general rule is that if parents or a guardian, in good faith, acting for the best interest of minor, furnishes means suit- able to age, and infant's station in life, and with reference to es- tate, then the infant would not be liable. MeKamia vs. Merry, 61 111. 177. Liability of Father: — Froiiiisc: An express promise must be proven, or circum- stances from which a promise by the father can be inferred, to hold him liable for necessaries furnished his infant child by a third person. Sehnuekle vs. Burnian, 89 111. 454; Murphy vs. Ottenheimer, 84 111. 39; GoHs vs. Clark, 78 111. 229; McMulIen vs. Lee, 78 111. 443; Dumser vs. Underwood, 68 App. 121; Allen vs. Jacob, 14 App. 279; XIII 111. Notes 1038, §18. — Burden of Proof: Where a third person furnishes means for the support of the child, he must take the burden of showing that the parent expressly promised to pay for same, or such facts and circumstances bearing upon the question of the parent's neg- lect, and his evident intentions and purposes regarding the necessities of the child and provision therefor, as that a promise can be properly inferred therefrom. Clark vs. Gotts, 1 App. 454. But where a father and mother separate by mutual consent, and the father permits the mother to take the children with her, then the father constitutes the mother his agent to provide for his children, and is bound by her contracts for necessaries for them. McMillen vs. Lee, 78 111. 443. Where a wife leaves the husband without his consent, and against his wishes, without fault or misconduct of the husliand, he will not be liable for necessaries furnished by a third person to the wife or child at her request. Sehnuekle vs. Burman, 89 111. 455. Wliere a minor son bought clothing without consent of father, who knew nothing of purchase until goods were brought home, but allowe'd the son to keep them, and plaintiff testified to fa- ther's promise to pay, which the latter on oath denied, it was held that jury were authorized to find the father liable for the price of the goods. .lohnsou vs. Smallwood, 88 111. 73. Liability of Step-father: A person is not bound to maintain the children of his wife by a former husband. Attridge vs. Billings, 57 111. 490. 704 INFANTS But if a man take the children of his wife by a former mar- riage into his family, he stands in loco parentis as to them and is bound by his wife's contract made for their maintenance and edu- cation. Chi. Man. T. S. Oo. vs. Scott, 159 App. 350. AFFIRMANCE AND AVOIDANCE OF CONTRACTS AND DEEDS. Contracts : Infant may repudiate contract not for necessaries, same being not void but voidable. Shaffer vs. Kennington, 61 App. 59; Fuqua vs. Sholem, 60 App. 140; Curry vs. St. John Plow Co., 55 App. 82. If an infant, after coming of age, does any act clearly showing an intention to affirm a contract made by him during his minority, he cannot afterwards repudiate it. Curry vs. St. John Plow Co., 55 App. 82. In action against a person for the price of property sold him while an infant, it is competent to show that the defendant dis- posed of the property after the suit was brought as tending to throw light upon the question of ratification or affirmance. Curry vs. St. John Plow Co., 55 App. 82. In order to constitute a ratification of acts done in infancy, the act relied upon as a ratification must be performed with full knowledge of its consequences and with the express intent to rat- ify what is known to be voidable. Sayles vs. Christie, 187 111. 420; Davidson vs. Young, 38 111. 145. A note given by a minor for articles not necessaries is voidable and may be repudiated by him, but if he has in his possession or control the articles for which such note was given, he may be required to restore them as a condition precedent to such repudia- tion ; the rule is different, however, where he has parted with such possession and the articles are no longer under his control. Fuqua vs. Sholem, 60 App. 140. Where, however, a party has wasted or squandered the consid- eration received by him during infancy, a different rule prevails and the adult party is without remedy. Bruschke vs. Wright, 166 111. 183; Brandon vs. Brown, 106 111. 519; Bennett vs. McLaughlin, 13 App. 349. Where an infant disaffirms his contract because of infancy, the rights of parties are governed by the law and not by the contract. Myers vs. Kehkopf, 30 App. 209. (See Katification.) Deed: A deed made by an infant is not void but voidable. Burnham vs. Kidwell, 113 111. 425; Keil vs. Healey, 84 111. 104; Cole vs. Pennoyer, 14 111. 158. The time in which to disaffirm is three years. Sayles vs. Christie, 187 111. 420; Tunison vs. Chamblin, 88 111. 378; Keil vs. Healey, 84 111. 104; 111. Land Co., vs. Bonner, 75 111. 315. Declarations by the grantor in a voluntary conveyance executed during infancy, m.ade to strangers in the absence of the grantee in the deed, do not amount to a ratification. Sayles vs. Christie 187 111. 420. INFANTS 705 Mere declarations or promises to make a deed of affirmance will not constitute an afiinnanee. Sayles vs. Christie 187 ill. 420. Silence is not ratification. D:ivi(lstin vs. Youi)>r, :\s 111. 145. SERVICES OF INFANTS. Part of Term: An infant agreeing to work for a certain length of time, but quitting before the end of the time, may recover for the value of his services for the time worked ; he is not bound by his contract. Bay vs. Haines, 52 111. 485. Right of Action: Is in parent or guardian. Duffield vs. Cross, 12 111. 397. The mother becomes the head of the family on the death of the father and is entitled to the seiwices and earnings of her minor children. Bradley vs. Sattler, 156 111. 603. If step-father stands in loco parentis to his step-children, he is entitled to their earnings while that relation continues. Capek vs. Cropik, 129 111. 509. Emancipation : Parent may relinquish his right to earnings of child, and that he has done so may be inferred from conduct of parent. Chi. Screw Co. vs. Weiss, 203 111. 536. Before a recovery could be had in the name of the infant, it is necessary for him to show by express arrangement or from such circumstances as that it might be inferred, that the father had given the son his time so as to entitle him to receive his own earnings. Ford vs. MeVey, 55 111. 119. "Where a minor worked for defendant, and, after he became of age, brought suit for his wages, and the father was called as a witness on behalf of his son, making no claim to the wages, and spoke of the transaction as his son's, the presumption was that he had emancipated his son at the time the services were rendered, and a recovery under these circumstances by the son would be a bar to any claim by the father for the son's wages. Scott vs. White, 71 111. 287 ; Aulgier vs. Badgley, 29 App. 336. ]\Iarriage emancipates, though not of age, and entitles child to earnings. Yaiiatta vs. Carr, 229 111. 47. ADMISSIONS OF INFANTS. Infants are not bound by mere admissions adverse to their in- terests, for they can neither make them themselves nor authorize other parties to do so for them. Knights Templar vs. Crayton, 209 111. 550; Cochran vs. McDowell, 15 111. 10; Sayles vs. Christie, 187 111. 420; Severns vs. Broffey, 155 App. 10. Alleged admissions of a child of tender years should be re- ceived with greater caution than admissions of adults. Chi. City Ey. Co. vs. Tuohy, 196 111. 410. Ev.— 4 5 706 INJURY TO PERSON And the jury should weigh them with reference to his age and understanding. Chi. City Ry. Co. vs. Tuohy, 196 111. 410. CUSTODY OF INFANT. A father is presumed to be entitled to custody of child. Sullivan \s. People, 224 111. 468. A parent has the right of custody of his child as against the world, unless he has forfeited his right or the welfare of the child demands he should be deprived of its custody. Hohenadel vs. Steele, 237 111. 229. Parents' right of custody of child is paramount, Cornmeh vs. Marshall, 211 111. 519. Declarations of child as to its preference and wishes may be heard but not necessarily allowed to prevail. Hewitt vs. Long, 76 111. 399; People vs. Porter, 23 App. 196. INJURY TO PERSON See Ordinances, Habits, Simii^^r Facts, Repairs After Accidents, Promise to Repair, Pecuniary Circumstances, Rules op Employer, Pain and Suffering, Res Gestae, Admis- sions, Expert and Opinion, Medical and Surgical Services, Sidewalks, Experiments, Physical Examination, Coroner's In- quest, Ownership, Wages and Earning Capacity, Domestic Re- lations, Photographs, Release, Custom and Usage, Presump- tions. Burden op Proof, Representative Capacity, Witnesses, Speed, Demonstrative Evidence, Safer Method. INNKEEPERS Defined: He must be a person keeping a house publicly open for the lodging and entertainment of persons in general, for a reason- able consideration. If a person lets lodgings only and upon a pre- vious contract with every person who comes, and does not offer entertainment for the public at large, indiscriminately, he is not the keeper of a common inn. Pullman Palace Car Co. vs. Smith, 73 111. 360; Bullock vs. Adair, 63 App. 30. One who runs a lodging house and contracts with guests for a definite time, and price, does not become an inn-keeper and under duty to care for goods and property of lodgers. Clifford vs. Stafford, 145 App. 247. Rights and Liabilities: Baggage Received Outside of Inn: An inn-keeper is respon- sible for baggage received by his agents outside of the inn. AVilliams vs. Moore, 69 App. 618 ; Eden vs. Drey, 75 App. 102. -^When Responsibility Attaches: Where baggage is delivered to the inn-keeper as the baggage of an intended guest who, within a reasonable time, becomes a guest, the responsibility of the inn- INNKEEPERS 707 keeper for the safe keeping of the baggage relates back to the time when the baggage was delivered. Fliut vs. 111. Hotel Co., 149 App. 404. Actions : — Hight of Action: No prosecution can be maintained under the act relating to inn-keepers for a refusal to pay for something which has not been obtained. There is, thus, no obtaining, within the meaning of the statute, of a meal where supper and lodging alone are received, and these are paid for, though at the time of payment breakfast is served, and under the known rules of the house the departing guest is required to pay for a meal in readi- ness. Siindmacher vs. Bloch, 39 App. 553. Failure of a guest to ask for baggage for several days after its reception by the inn-keeper is not necessarily negligence. Eden vs. Drey, 75 App. 102. — Question of Law and Fact: Under the proviso to the Inn- keepers' Act, that nothing contained in the act shall apply to such an amount of money and valuables as is usual, common and pru- dent for a guest to retain in his room or about his person, the ques- tion whether the valuables retained by a guest in his room in a particular case comes within such proviso is one of fact, and is not raised by a demurrer to the evidence in a suit to recover for the loss of such valuables. Eoekhill vs. Congress Hotel Co., 237 111. 98, — AdmissiMlity of Evidence: Bailee may show that the sev- eral employees who were intrusted with the property alleged to have been lost were competent and were so considered by bailee when employed. Miles vs. Inter. Hotel Co., 167 App. 440; Gray vs. Drexel Arms Hotel, 146 App. 604. Where a restaurant proprietor seeks to exonerate himself from liability for loss of chattels given into the hands of a waiter, on the ground that there was a rule of the house forbidding w^ait- ers to receive property from a guest, evidence of such rule is not admissible unless it is first shown that the guest had notice thereof. LaSalle E. & O. Hou. vs. McMasters, 85 App. 677. — 'Weight and Sufficiency of Evidence: Proof that a person refused or neglected to pay for accommodations at an inn or hotel on demand, is only proof that he refused or neglected to pay a debt, without showing either that it was fraudulently incurred or the neglect or refusal to pay was in any way fraudulent. Hutcliinson vs. Davis, 58 App. 358. "Where the only evidence as to how property was stolen from a room in an inn, is by plaintiff who claimed he locked the door with a key which he took out of the door after locking, that he thinks no one could have entered the door after he had taken the key out, that he remembers nothing about the thumb-bolts on the door, and that he saw the cards on the door directing guests to leave valuables at the office, a verdict against the inn-keeper can- not be sustained. Hulbert vs. Hartman, 79 App. 289. 708 INNOCENCE — Presumptions and Burden of Proof: To constitute a prima facie case under Section 2 of the Act to define and punish frauds upon hotel, inn, lodging and eating house keepers, there must be proof that the person surreptitiously removed or attempted to remove his baggage or of one or more of the conditions required by said section. Hutchinson vs. Davis, 58 App. 358. • A presumption of negligence arises when baggage is handed to an authorized employe or agent of the hotel for custody and cannot afterward be found or heard of. Gross vs. Saratoga Hotel Co., 176 App. 160. An inn-keeper owes the duty and assumes the obligations of safely keeping the property of his guests, and, if the property is lost, all that is necessary to make out a prima facie case is to show the relation of inn-keeper and guest and the loss, when the bur- den is then east upon the inn-keeper to exonerate himself. Eockhill vs. Congress Hotel Co., 237 HI. 98 ; Metcalf vs. Hess, 14 HI. 129; Johnson vs. Richardson, 17 111. 302; Eden vs. Drey, 75 App. 102. In case of the loss of his guest's property, an inn-keeper is prima facie guilty of negligence, but he may repel such presump- tion by showing an absence of iiegligence on his part, or of his employees or servants, and by showing negligence on the part of the guest. Hulbert vs. Hartman, 79 App, 289. Proof by the bailor that he placed property in the care of the inn-keeper and that the same was not returned upon demand, imposes on the inn-keeper the burden of showing that he exer- cised such care as was required, the law presuming negligence for the failure to return. Miles vs. Int. Hotel Co., 167 App. 440. — Witnesses: In an action by an inn-keeper for board, proof that he is absent the greater part of the time, and that in his ab- sence his wife manages the inn for him is enough to permit her to testify as his agent. Mitchell vs. Hughes, 24 App. 308. INNOCENCE See Presumption, Homicide. INQUEST See Coroner's Inquest, Wills, Insurance, Sanity and In- sanity. INSANITY See Sanity and Insanity, Expert and Opinion, Wills, Mental and Physical States. INSOLVENCY 709 INSOLVENCY Defined: A general inability to answer in the course of business, the lia- bilities existing and capable of being enforced. Martin vs. Herz, 224 111. 84; Best vs. Fuller, 1S5 111. 4.3. _ j As applied to a person, firm or corporation in trade, is ina- bility to pay debts as they fall due in usual course of business. Atwater vs. Amer. Bank, 152 111. 605. Presumptions : It is not presumed that a person is insolvent. Such fact must be alleged and proven. State Bank vs. Barnett, 250 111. 312; Bittinger vs. Kasten, 111 111. 2(i0; Timison vs. Chamblin, 88 111. 378; Kogers vs. Dimon, 106 App. 201. Admissibility of Evidence: ■ — Conclusion of Witness: An active managing partner of a mercantile business, familiar with its affairs, is to be considered a competent witness to testify regarding its insolvency, and he may, upon direct examination, testify that the firm is either sol- vent or insolvent, leaving to the other side, if dissatisfied with such evidence, an opportunity to examine him as to assets and liabilities of such firm and the knowledge he has from which he makes his statement. Su-an vs. Gilbert, 67 App. 236; Aflfd., 175 111. 204. Compare : ' ' Counsel made offer to prove by a witness, a mem- ber of the firm, that the firm was insolvent. Court says, 'The question of the solvency of the firm may depend upon many facts and circumstances, such as the amount of liabilities and the time of their maturity, and the amount of the assets and the value thereof. Hence, the offer to prove insolvency was an offer to prove a mere conclusion, and should not be allowed against ob- jection. The offer should be to prove facts tending to show insolvency, that the court might see whether or not the facts of- fered in proof have any relevancy to the question.' " Martin vs. Herz, 224 111. 84. — Reputation: Where the question of the insolvency is directly in issue, and does not come up incidentally, evidence of finan- cial reputation is inadmissible. It might be proven by facts tending to show such insolvency, connected v/ith general reputation as to that point, and in such event it must be his reputation in the neighborhood and among those with whom he associates and does business. Graff vs. Brown. 85 111. 89. Weight and Sufficiency: In a suit by the assignee against the assignor of a note, an alle- gation of the insolvency of the maker, as an excuse for want of diligence by suit, is prima facie established by the return of the executions, in other cases against the maker, ''nulla bona." Phillips vs. Webster, 85 HI. 146. It is no evidence that a firm is insolvent because if forced to wind up its business at a particular time, it would be unable to pav all its liabilities. Blow vs. Gage, 44 111. 208. 710 INSPECTION BY JURY Evidence that a partnership made an assignment for creditors about six months after a replevin action was begun, and that the assets paid about thirty cents on the dollar, is not admissible to show insolvency of the partnership at time replevin suit was begun. Martin vs. Herz, 224 111. 84. Proof of a return of an execution nulla bona is not indispensa- ble to establish that a suit against the maker of a note would have been unavailing. Insolvency may be shown in different ways. It may be shown that the maker had no property whatever and hence was insolvent, or that all property owned by the maker was mortgaged for more than it was worth, or that different creditors had procured judgments against the maker, issued executions, placed them in the hands of the sheriff and that the sheriff' had not been able to find property and had returned the executions unsatisfied, or that deficiency decree in foreclosure remained un- satisfied. There may be other modes in which insolvency may be shown. Springer vs. Puttkamer, 159 111. 567. In an action to dissolve an insolvent corporation, the insol- vency of those owing a stock liability may be established prima facie by a return nulla bona for the purpose of determining the propriety of additional assessments against solvent subscribers. Leman vs. Teter, 169 App. 503. To prove the insolvency of a corporation no better evidence need be introduced than a return null-a bona made by sheriff upon execution issued against it. Wheelock vs. Kost, 77 111. 296. Solvency : — WJien Court SJionld Require Proof of: Where a party has a right to demand indemnity of a party against loss or injury before paying him money or surrendering his security, and the court so decrees, and a bond of indemnity is presented, which is objected to on account of the insolvency of the makers, it is error in the court to refuse to admit evidence to show insolvency. Daly vs. Wilkie, 111 111. 382. — Direct Testimony bij Witucss: On question of solvency, a witness may be asked if he is the owner of property. Corgan vs. Frew, 39 111. 31. ' &' INSPECTION BY JURY See Age, View by Jury. INSTRUCTIONS Former Trial: Instructions given on a former trial in different cause between the same parties cannot be read to jury. Harris vs. Miner, 28 111. 135. INSURANCE 711 INSURANCE rroT- n See Burden of Proof, Presumptions, Parol, Suicide, Assump- sit. BENEFIT SOCIETY. Membership and Good Standing: — PresuNiption: The certificate is evidence of good standing of member at time of its issue, and such good standing is pre- sumed to continue until tiie contrary is shown. Eoyal (Jiicle vs. Achterrath, 204 111. 549; Independent Order vs. Zak, 13G in. 185. — Lapsed Membership: Evidence that member attempted to change beneficiary does not tend to show he dropped his member- ship. Jones vs. Knights of Honor, 236 111. 113. — Burden of Proof: Tlie burden of showing that, before his death, insured lost his good standing as a beneficial member, is upon society. U. B. of C. & J. vs. Fortin, 107 App. 306; Independent Order vs. Zak, 136 111. 185. And likewise upon transferee company. . Brown vs. Mutual Life Ins. Co., 224 111. 576; Bolles vs. Mutual Life Ins. Co., 220 111. 400. — Suspension: Burden is upon soci-ety to show suspension. Tourville vs. B. of L. F., 54 App. 71. The proper way to show suspension of member is by the books and records of the branch order to which he belongs. A failure to pay an assessment may be shown by financial officer to whom payment should have been made. The making of assessments should be shown by the records of the body authorized to make assessments. '' Supreme Council vs. O'Neill, 108 App. 47. Evidence that deceased, at time of expulsion, was sick of the disease of M'hich he died, is properly excluded, where no offer is made to show such expulsion was for purpose of avoiding pay- ment of certificate. Croak vs. Order of Foresters, 162 111. 298. — Be-instatement: Refusal to admit proof of declarations to witness by insured, as to condition of his health in the last few months of his life, is not reversible error, even though the evi- dence is competent, where defendant was allowed great latitude in the matter, and proved by several witnesses the condition of health of insured, covering a period of two years prior to his death. Court of Honor vs. Dingee, 221 111. 176. Condition of health at time of re-instatement is question of fact. Court of Honor vs. Dingee, 221 111. 176. — Forfeiture: Burden is upon society to show forfeiture was in accordance with its constitution and by-laws. Polish Cath. Union vs. Warczak, 182 111. 27. If society is fully advised by beneficiary, after member's death, of alleged false representations in member's application for re- instatement, and the society does not then insist on forfeiture 712 INSURANCE on that ground, but recognizes the validity of the insurance by requiring beneficiary to prepare proofs of death, an intention to waive right of forfeiture follows as a legal result. Traders M. L. lus. Co. vs. Johnson, ^00 111. 359. Where party claims right based on a forfeiture, it is incum- bent upon such party to show that a forfeiture has taken place. Supreme Council vs. O'Neill, 108 App. 47. Notice of Death: Plaintiff who proves giving of notice to person acting as sec- retary of society, and in possession of the office and performing its duties, need not prove the legal election of such person as sec- retary, by the records of his election. Supreme Lodge vs. Matejowsky, 190 111. 142. Proofs of Death: — Caicse of Death: Proofs of death are admissible in evidence. M. W. of A. vs. Davis, 184 111. 230. "Satisfactory proofs of death," within the meaning of a bene- fit certificate, means satisfactory proof that the insured is dead, and a reasonable proof of cause of death ; but such proofs are not binding upon either the society or the beneliciaries when the cause of death becomes a disputed question between them. Kniolits Templar vs. Crayton, 209 111. 550. — Physician's Statements: A beneficiary is not estopped from denying the truth of the physician's affidavit as to cause of death, required by the rules of the society to be filed with proofs of death. The physician's affidavit as to cause of death is admissible in evidence with other papers constituting proofs of death. M. W. of A. vs. Davis, 184 111. 236. Proof taken by plaintiff and adopted and approved by defend- ant are admissible in behalf of defendant. Lnndliolm vs. Mystic Workers, 164 App. 472. Acts of President as Binding Society: A benefit society is bound by the acts of its president, in ab- sence of proof that his ordinary powers as president were abridged by the by-laws of the society. Traders' M. L. Ins. Co. vs. Johnson, 200 111. 359. Suicide : — Defined: The word suicide means voluntary, intentional self- destruction and not self-destruction by one who, at the time, is incapable, by reason of unsoundness of mind, of resisting an in- sane impulse to take his own life, or to understand the general nature or consequences and effects of his act. Supreme Lodge vs. Pels, 209 111. 33. — Burden of Proof and Presumptions: If defendant files spe- cial plea alleging insured committed suicide, in violation of terms of benefit certificate, defendant has burden of establishing such fact, notwithstanding the proofs of death introduced by plaintiff contain an admission to that effect, making a prima facie case of suicide, which plaintiff seeks to overcome by introducing contra- dictory proof. Supreme Lodge vs. Stensland, 206 111. 124; Eumbold vs. Royal League, 206 111. 513. INSURANCE 713 In absence of proof of cause of death, natural causes or acci- dental causes presumed. Amer. Home Circle vs. Schneider, 134 App. 601; Knights Templar vs. Crayton, 209 111. 550. The existence of a fact which must be affirmatively shown is never presumed from mere absence of facts showing a negative. Riimbold vs. Royal League, 206 111. 513. — What Tends to Prove: Proof that the dead body of plain- tiff's husband was found hanging by a rope around the neck, to- gether with proofs of deatli ott'ered by plaintiff . herself, where it is stated that the immediate cause of death was ''strangulation by hanging himself," tends to prove averments of defendant that death of insured resulted from his own act. Kieswetter vs. K. of M., 227 111. 48. — Coroner's Verdict: The verdict rendered by a coroner's jury is admissible in suit to recover upon certificate of insurance held by deceased. Grand Lodge vs. Wieting, 168 111. 408; Limdholm vs. Mystic Work- ers, 164 App. 472. Verdict of coroner's jury, attached to proofs of death, may be considered by jury in determining cause of insured's death, but neither proofs of death nor testimony taken upon inquest can be considered on that question. Knights Templar vs. Crayton, 209 111. 550. Is not conclusive evidence of the fact. Peckham vs. Modem Woodmen, 151 App. 95. — Admissions and Declarations of Insured: Statements made by assured are competent evidence against beneficiary. Rule in benefit societies is different from ordinary life insurance, where assured ceases to be a party in interest and vested interest passes to the beneficiary. Therefore presence or absence of beneficiary is immaterial. Towne vs. Towne, 191 111. 478; Treat vs. Merchants Life Assoc, 198 111. 431; Lundholm vs. Mystic Workers, 164 App. 472; Brown vs. Mystic Workers, 151 App. 517; Court of Honor vs. Dinger, 123 App. 406; Van Frank vs. U. S. Ben. Association, 158 111. 560; XII 111. Notes 1203, § 889. — Opinion of Physician: Where insured was found dead with bullet wound in his head, it is proper to refuse to permit physician to express opinion whether wound was accidentally or purposely inflicted; neither is it competent to prove there was no hue and cry after death, nor any attempt to apprehend his supposed mur- derer. Treat vs. Merchants Life Assn., 198 111. 431. Damages : — Presumption : Amount of recovery presumed to be full amount of certificate. C. M. L. Assn. vs. Kentner, 188 111. 431; Met. Ace. Assn. vs. Wind^- dover, 137 111. 417. — Parol: Where policy contains provision to pay insured or his legal representative one dollar for each member of society of same division or divisions "at time of payment," parol evidence •714 INSURANCE is admissible to show number of members at time payment should be made, in order to arrive at measure of damages. St. Clair Co. Soc. vs. Fietsam, 97 111. 474. — State Reports of Defendant: Where defendant fails to pro- duce its books upon notice, plaintiff, in attempting to prove amount belonging to defendant's guaranty fund, may show, from sworn reports of defendant to various states, the cost of insur- ance, the estimated or expected mortality based upon standard tables in general use, and the actual mortality as reported tosuch states, and may prove admission of defendant's general officers that the actual mortality had never exceeded the estimated mor- tality. Provident Sav. Co. vs. King, 216 111. 416. Release Under Seal: Where a release under seal is pleaded, plaintiff is not entitled to impeach the release for fraudulent representations as to col- lateral matters not going to the execution of the release, nor to prove that there was, in fact, no bona fide .compromise. Jackson vs. Security Ins. Co., 233 111. 161; Cf., P. & M. Ins. Go. vs. Caine, 224 111. .599. Constitution and By-Laws: — Knowledge Inj Member: Members of a benefit society are conclusively presumed to know the laws of such society which enter into and form part of contract of insurance. Benes vs. Supreme Lodge, 231 111. 134. — Amendment: The burden is upon the society to show that the constitution has been amended in accordance with its provi- sions, before the amendment offered becomes competent evidence. U. B. of C. & J. vs. Fortin, 107 App. 306; M. S. F. A. Assn. vs. Windover, 137 111. 417. Witnesses : — Competency of Member against Administrator: A mem- ber of a benefit society is incompetent to testify in behalf of a society in suit on benefit certificate by the personal representa- tive of the beneficiary. Cronin vs. Supreme Lodge, 199 111. 228. Application : — Examiner: False Statements By: False answers inserted by medical examiner in application for insurance, to questions which applicant answered truthfully, do not invalidate the in- surance, although the application stipulates that examiner is ap- plicant's agent. Eoyal Neighbors vs. Boman, 177 111. 27. — Course of Conduct: Where application showed assured drank no alcoholic liquors at all, and the validity of the policy depended upon the truth or falsity of the representations in such appli- cation, opinion or conclusion of medical expert of the association issuing the certificate, whether the application would have been favorably passed upon if it had been shown that applicant drank liquor, is inadmissible, the real issue being whether the state- ments in the application were true or false. Mutual Aid Assn. vs. Hall, 118 111. 169. INSURANCE 715 — Truth of Statements: Plaintiff is not required, in first in- stance, to prove truth of statements in application for member- ship, since falsity of statements or non-compliance with the rules is a matter of defense. Supreme Lodge vs. Matejowsky, 190 111. 142. Contract : -^No)i Est Factum: In action of assumpsit, defendant pleaded general issue and nun est factum, and offered to prove that the lodge had not been properly organized, although it had received its charter and, as a body, was acting under it witli knowledge and sanction of defendant association. Such testimony was not pertinent to the issues, under the pleas, and was irrelevant, as not tending to show any defense to the action. Order of Mutual Aid vs. Paine, 122 111. (525. — Performance of Condition: It is not incuml)ent upon bene- ficiary to prove compliance by insured with all conditions of cer- tificate of membership and the fundamental laws of the society, where such j)erformance is not put in issue by special plea. M. W. of A. vs. Davis, 184 111. 236. Where express condition that member should faithfully keep his pledge of total abstinence, parol evidence of his having vio- lated such pledge before his death is admissible. Trial and con- viction by order for such offense need not be shown. Royal Templars vs. Curd, 111 111. 284. — Beneficiary : Burden is upon society to show that beneficiary is not one who can take under restrictive laws of society. Rizzo vs. Foresters, 176 App. 165. Parol evidence is admissible to connect beneficiary with the contract. Hogan vs. Wallace, 166 111. 328; Conductors Assn. vs. Loomis, 142 111. 560. Fact that heirs have introduced parol proof of their heirship and proof of by-laws of society showing their eligibility, does not make contract partly oral within statute of limitations, and is competent. Jones vs. Supreme Lodge, 236 111. 113. In determining whether deceased knew and acquiesced in mis- take made by clerk in names of beneficiary when making out new certificate, conduct of deceased in retaining certificate without objection is competent evidence; but also are his declarations tending to show he did not know of the mistake. The competency of declarations by a member of a benefit society, tending to show he did not know" a mistake had been made in the certificate, does not depend upon the presence of beneficiary when such declara- tions were made. Towne vs. Towne, 191 111. 478. Assessment : — Fact of: Making of assessment should be shown by records of body authorized to make it. Supreme Council K. & L. Assn. vs. O'Neill, 108 App. 47. — Levy: Burden is upon society to show^ default in payment of an assessment, and such burden, likewise, extends to the show- ing that the assessment was regularly levied in accordance with 716 INSURANCE its own laws providing therefor. Such proof can be made, in the first instance, by the society by introduction of its own records, or else be established by direct and affirmative testimony. N. W. T. M. Assn. vs. Schaus, 148 111. 304; Supreme Lodge vs. Haas, 116 App. 587. — Prima Facie Against Members: The levy of an assessment for dues in a mutual insurance association is prima facie evidence against members, where the record of the assessment contains the necessary data for computing the amount, and recites the resolution ordering the assessment was "unanimously adopted by the direct- ors as a board and by the executive committee." Anderson vs. E. F. Life Assn., 171 111. 40. — Delinquency: Evidence of a custom to extend leniency with respect to payment is immaterial upon question of delinquency. Dillon vs. National Council, 148 App. 121; Benev. Society vs. Baldwin, 86 111. 479. — Service of Notice: When contract provides that assessments shall be due a certain time after a particular notice has been given, the society, before it can claim that a member has been suspended for failure to pay assessment, must show affirmatively that it has given the notice of the assessment which the contract requires. Farmers' Confederation vs. Croney, 106 App. 423. Where secretary testified that while he had no recollection of putting a particular notice for an assessment into an envelope and addressing it to a particular member, he followed his usual custom of mailing a notice to each and every member, and that the one sent to each member showed the amount of the assess- ment, and was on the blanks of the secretary, such evidence was prima facie evidence of service of notice upon deceased member. National Union vs. Hunter, 99 App. 146. — Avtkority For: The death of the member of a benefit society is sufficiently proven, to authorize call for assessment, by record of board of directors. Van Frank vs. U. S. M. B. Assn., 1,58 111. 560. — Failure to Pay: Where society claims deceased has for- feited membership by default in payment of assessment, bur- den of establishing such default by competent evidence will lie upon society. N. W. T. M. Assn. vs. Schauss, 148 111. 304; Supreme Council vs. Haas, 116 App. 587. The burden of showing legality of assessment on a member of benefit society, when forfeiture is claimed, caused by non-pay- ment, is upon party seeking to establish same. Chi. G. L. Assn. vs. Wilson, 91 App. 667; C. M. L. Assn. vs. Tuttle, 87 App. 309 ; P. K. Co. Union vs. Warkezak, 82 App. 351. And clear intention to declare a forfeiture must be shown, or it will be held not to have taken place. C. B. Assn. vs. Tucker, 157 111. 194; C. M. L. Assn. vs. Harahan, 98 App. 22; King vs. Eadke, 175 111. 72. — Waiver of Payment: Where defendant denied liability on ground of failure of deceased to pay certain assessment, and his rights forfeited, a notice from the subordinate lodge, that assess- ment must be paid by date later than that first given, is admis- INSURANCE 717 sible as tending to show waiver of provision for immediate for- feiture. Grand Lodge vs. Lackniann, 199 111. 140. — Attitude of Society: Proof that cheek for overdue assess- ment was sent after member's death, to the financial officer of subordinate lodge, which check was returned later on, after officer had learned of member's death, is competent to show that at time check was received, the society did not regard certificate as having been forfeited. Jones vs. Knights of Honor, 236 111. 113. — Records of Society: The records made by society are proper evidence against members for purpose of showing forfeiture of rights of insurance for non-payment of assessments; and when such member has the right to change, at his option, at any time, the beneficiary in his certificate, the person named in such certifi- cate having no vested right in same, he or she will be bound by the records of such association, the same as the deceased mem- ber himself. If forfeiture occurs in life of member, no right will ever vest in beneficiary named in certificate. Such records are at least prima facie evidence in respect to rights of member of society. Letters and statements and opinions of officers of association, in regard to law and facts involved in suit, made in absence of -opposing party, are not admissible. The court does not permit a person to make evidence for himself. Bagley vs. Grand Lodge, 131 111. 498. Records are best evidence to show non-payment, K. of L. Assn. vs. O 'Neill, 108 App. 4 (. — Declaratio7is of Assured: Where assured has power to change beneficiary at pleasure, and pay assessment or drop membership as he pleased, his declarations that he would no longer pay the assessments may be shown in connection with fact that he failed to pay. VanFrank vs. U. S. Ben. Assn., 158 111. 560; Hansen vs. Supreme Lodge, 140 111. 301. The admissions of a deceased member, as to his acts of omis- sion or commission, in relation to certificate of membership, are admissible in evidence in suit by beneficiary against association. National Union vs. Hunter, 99- App. 146. — Receipts: For assessment paid, are admissible though an ap- parent alteration in dates is not explained. Young vs. Grand Lodge, 149 App. 603. ACCIDENT. The Policy: — Parol: The contract having been reduced to writing, parol is inadmissible to vary its terms. Com. Aec. Ins. Co. vs. Bates, 176 111. 190. Declarations of assured are competent on question of his con- clusions as to continuance of payment of premium. Kearney vs. Aetnae Life Ins. Co., 109 App. 609. — Delivery: Conditional delivery cannot be shown by parol. Com. Ace. Ins. Co. vs. Bates. 176 111. 190. 718 INSURANCE — Presumptions: Where a policy reciting payment of first premium is found in hands of assured, presumed to have been duly delivered. Mass. Ins. Co. vs. Sibley, 158 111. 411; Ins. Co. vs. Anderson, 77 ill. ;JS4. Manner of Death: — Burden of I'roof: Death by accident insured against being proved, it devolved upon company to prove a violation of condi- tion by insured, or rather that by his act he brought himself within the exception in the policy relied on to avoid payment. Fidelity Ins. Co. vs. Sittig, 181 111. 111. Where it is admitted insured died as result of injury effected by violent and external means, plaintiff has burden of proving injuries were accidental and not self-inflicted. Wilkinson vs. Aetnae Ins. Co., 240 111. 205; F. & C. Co. vs. Weise, 182 111. 496. — Presumption: Where evidence shows insured suffered in- jury which caused his death, and there is no proof in the record from which it can be determined whether injury was accidental or self-inflicted, presumption is that injury was accidental. Wilkinson vs. Aetnae Ins. Co., 240 111. 205; F. & C. Co. vs. Weise, 182 111. 496. -^Question for Jury: The rebuttable presumption of law that all men are sane and have a natural desire to avoid personal in- juries or death may, when taken with an admission that the inju- ries causing the death of insured were caused by external means, and when not rebutted by proof or the circumstances in evidence surrounding the death, be sufficient to require the court to sub- mit to the jury the ciuestion whether or not the injuries were accidental. Wilkinson vs. Aetnae Ins. Co., 240 111. 205. — Competency of Habits' and Temperament of Insured: Hab- its and temperament of assured are competent on question whether the injuries received by him were accidental or intentionally in- flicted ; and if defendant files a plea presenting the defense of suicide, it is not error to permit proof of such habits and tempera- ment as evidence in chief. Wilkinson vs. Aetnae Ins. Co., 240 111. 205. — Circumstanticd: It is not necessary that eye-witnesses tes- tify that death was accidental, but such fact may be proven by circumstantial evidence. Wilkinson vs. Aetnae Ins. Co., 240 111. 205. Due Care: — Question for Jury: In action on accident policy insuring a person who met his death by drowning when attempting to cross a river on a cable ferry, the question whether he was exercis- ing due diligence for his safety is one of fact for the jury, where the facts and circumstances in evidence are not such that all rea- sonable minds would necessarily agree that an ordniarily pru- dent man would not, at the time, have tried to cross. Tinsman vs. I. C. M. Assn., 235 111. 635. INSURANCE 719 LIFE. The Policy: — Farul to Prove Contents: Admissible where policy is not in possession of plaintiff, or is mislaid, so it cannot be produced. Protection Ins. Co. vs. Dill, 91 III. 174. And upon such proof it is competent for company to intro- duce book of company showing substantial copy of policy, made by authorized officer of company. Protection Ins. Co. vs. Dill, 91 111. 174. — Delivery: Actual delivery of policy is not essential unless made so by contract. Devine vs. Federal Ins. Co., 250 HI. 203. May be proved by policy holder, and that he paid premium to agent. Helbig vs. Cit. Ins. Co., 234 lU. 251. — •Fraud: Burden is upon defendant to prove falsity of state- ments of insured which vitiate the policy. Globe Mut. Ins. Co. vs. Ahem, 191 111. 167. A charge of fraud sufficient to avoid life insurance policy can- not be based upon examining physician's opinion, when accom- panied by a correct statement of facts upon which the opinion rested. Security Trust Co. vs. Tarpley, 182 111. 52. The fact that insured was, shortly after issuance of insurance, stricken with disease which ultimately caused his death, may or may not, according to other proof, afford evidence of fraud in repre- senting him to be in good health. Taken in connection wuth other evidence tending to show that the disease existed when policy was applied for, it would be material, but standing alone, or in connec- tion with evidence of previous good health, it is insufficient to raise even a presumption of fraud. Eclectic Ins. Co. vs. Fahienkrug, 68 111. 463. Certified transcript of lunacy proceedings in county court is admissible to show insured made false answers to questions con- cerning his sanity. Samuels vs. Life Assn. of America, 152 App. 245. Right of Recovery: — Matters to he Proven: Plaintiff must prove the making of the policy, its terms, payment of premium, death of insured, giv- ing notice and making proof thereof to the company as required by the policy. Cont. Ins. Co. vs. Rogers, 119 111. 474. Plaintiff must allege and prove insurable interest in life of as- sured. G. M. L. Ins. Co. vs. Hogan, 80 111. 35. Cause of Death: — Presumption: Presumption is that it was from natural causes, and not an act of self-destruction, and so it is where the evidence as to whether it was by suicide or not, is equally bal- 720 INSURANCE anced, but no such presumption arises merely from the fact that, under the evidence, there may be a doubt as to whether the death was caused by suicide. G. M. L. Ins. Co. vs. Hogan, 80 111. 35. — Opinions: Where assured was found dead with bullet wound in his head, it is proper to refuse to permit physician to express opinion whether wound was accidentally or purposely inflicted. Treat vs. Merchants Life Assn., 198 111. 431. — Hearsay: It is proper to permit witness who found de- ceased's revolver to state that the latter 's daughter told him where to find it, but not to prove by him her statements as to how the revolver came there. Treat vs. Mer. Life Assn., 198 111. 431. — Proof of Death: Proofs of death competent to show plaintiff complied with requirements of policy, or by defendant that they did not meet the requirements thereof, but are not competent for either party upon question whether the cause of death was such as to charge defendants with liability or relieve them therefrom. Knights Templar vs. Crayton, 209 111. 550. Pajrment of Premium: — Intention: With what intention an insurance premium was paid may be shown to rebut inference of waiver of condition of policy. Mut. Ins. Co. vs. Amermann, 119 111. 329. — Readiness to Pay: Sufficiently proven by offers to pay, un- til plaintiff was notified no further payments would be received. Travelers' Ins. Co. vs. Pulling, 159 111. G03. ■^-^ Waiver: Evidence that company, by its dealings with in- sured, who was also its agent, waived, from time to time, prompt payments of installments of premiums, sometimes deducting same from his commissions, tends to show waiver of prompt payment of note of insured for an overdue installment. 111. Life Assn. vs. Wells, 200 111. 445. A circular slip issued and put in circulation by company, stat- ing that certain days of gi-ace are allowed on all policies, is admissible against it to show waiver, as against a forfeiture of policy, for non-payment of a premium at time specified. U. S. Life Ins. Co. vs. Eoss, 159 111. 476. — Custom: Upon issue of payment, evidence of payment of insured upon a certain day of certain dues, assessments and pre- miums having no relation to the policy in question, is incom- petent; likewise incompetent to permit evidence that insured, at time in question, had money and was a man who paid his obligations. Ballah vs. Peoria Life Assn., 159 App. 222. Admissions and Declarations: — General Officer: Competent. Prov. S. L. A. Assn. vs. King, 216 111. 416. — Agent: What agent said at time of receiving application is competent as part of res gestae, but casual conversations after- wards are competent only by way of impeachment. Cov. Mut. Ben. Assn. vs. Conway, 10 App. 348. INSURANCE 721 — State Reports: Admissions made in reports to state are competent where company fails to produce books on notice. Prov. 8. L. A. Asyn. vs. King, 216 111. 41G. — Insured: Rule is that statements and declarations of one whose life has been insured for the benefit of another are compe- tent when they relate to the health of insured or bodily infirm- ity or disease, provided such statements and declarations were made at a time prior to and not remote from time of examination of insured by physicians of insurer and provided there is an issue as to the knowledge of the insured of such infirmity or dis- ease. The ground of admissibility being that they are closely enough connected with the representations of the insurer to be a part of the res gestae. Schwartz vs. Berkshire Life Ins. Co., 91 App. 494. So remarks made after signing application, but before deliv- ery of policy, indicating a suicidal intent, are admissible. Treat" vs. Mer. Life Assn., 19S 111. 431. FIRE. Presumptions and Burden of Proof: Where insured fails to testify positively that he gave notice of additional insurance, presumption is he did not give it. 111. M. F. Ins. Co. vs. Malloy, 50 111. 419. Burden is on company to show that property was so classified in other policies as to relieve it in wdiole or in part from its lia- bility. M. & M. Ins. Co. vs. Schroeder, 18 App. 216. Burden is on company to show notice of withdrawal of author- ity of agent. Watertown Fire Ins. Co. vs. Rust, 141 111. 85. Existence of insurance agency being established, as against person dealing with agent the relation is presumed to continue until notice of termination of same is communicated to him. Clark vs. Natl. Fire Ins. Co., 159 App. 256 ; Mer. Ins. Co. vs. Oberman, 99 App. 357. Introduction of policy and proofs of loss do not make out a prima facie case. Lancashire Ins. Co. vs. Lyon, 124 App. 491. Proof of execution and delivery of a policy, destruction of property insured, and furnishing of proper proof of loss within time prescribed by policy, establishes prima facie a right of re- covery. Ins. Co. vs. Cox, 138 App. 14. "Where policy provided that in case of loss the money should be paid in sixty days after notice and proof of loss, the company, by receiving and retaining notice, affidavit of loss and other papers, and making no objection, must be regarded as admitting that they Avere properly made and presented. And assured is not re- quired to introduce in evidence the notice of loss, but may, by proof that he has delivered the notice and other papers, and that Ev. — 4 6 722 INSURANCE company interposed no objection to their regularity, raise pre- sumption that he complied with requirements of policy in that regard. Hartford Ins. Co. vs. Walsh, 54 111. 164. Party seeking to recover for loss under policy of insurance need not produce application and prove the representations therein con- tained are correct. If any material representation by assured was false, this is a matter for defense to show. Grange Mill. Co. vs. West Ins. Co., 118 111. 396. Admissibility of Evidence: — In General: Policy is admissible w^ithout proof of execu- tion, unless denied by verified plea, though providing not valid unless countersigned by certain agent, where it purports to be so countersigned. Firemen's Ins. Co. vs. Barnsche, 161 111. 629. Under general issue evidence is admissible to show breach. Western Ins. Co. vs. Mason, 5 App. 141; Amer. Cent. Ins. Co. vs. Birds B. & L. Assn., 81 App. 258. For which party a broker acted, may be shown by parol, not- withstanding the statements of the policy. Lumberman's M. I. Co. vs. Bell, 166 111. 400. On issue of change of title, parol evidence is admissible to show that deeds are mortgages. N. A. Co. vs. Building Assn., 198 111. 474. Surrounding circumstances tending to show construction par- ties placed on contract are competent to show meaning and ef- fect of ambiguous contract. Williamson vs. Pratt, 136 App. 168. Offer of settlement is not admission of liability. Allemania F. I. Co. vs. Peck, 133 111. 220; Milhim vs. Hawkeye Ins. Co., 171 App. 262. It is competent for plaintiff to prove that president and secre- tary of company promised to pay the loss. Aurora Ins. Co. vs. Eddy, 55 111. 213. Assignments of a policy, and consent thereto by agent of com- pany are admissible without proof of execution, in suit by person originally assured, for use of assignees, as it does not concern the company that the suit is so brought. Firemen's Ins. Co. vs. Barnseh, 161 111. 629; Helbig vs. Citizens Ins. Co., 120 App. 58; 111. Mut. Ins. Co. vs. Mfg. Co., 6 111. 236. Amount for which assured sold a policy after a loss by fire is not admissible as evidence of amount of loss. Com. Ins. Co. vs. Friedlander, 156 111. 595. Evidence offered by defendant of listing of plaintiff's prop- erty for taxation, and amendment thereof, is properly rejected, the issue being the amount of plaintiff's damages. Knickerbocker Ins. Co. vs. McGinnins, 87 111. 70; Kelly vs. Peoples Nat. Fire Ins. Co., 262 111. 158. Plaintiff introduced in evidence generally his own affidavit of loss made to company, which showed that the house had become vacant some three weeks before the loss. There was no attempt to limit the effect of this evidence to the fact that the preliminary proofs had been made. The effect of such evidence could not be limited, but was to be considered in all its parts, and effect given INSURANCE 723 to all it proved or tended to prove, even though it defeated plaintiff's right to recover. N. A. Ins. Co. vs. Zaneger, 63 111. 464. As means of proving amount of loss in consequence of re- moval of goods from store, it is proper for insured to offer any evidence such as his invoice, bills of purchase, books of account, amount of sales, inventories of stock taken immediately after the loss, together with such facts as may be established by his clerks. Insurers may show goods were carelessly removed or wantonly and unnecessarily exposed. Case vs. Hartford Ins. Co., 13 111. 676. Company attempted to prove policy was cancelled before loss, and that no payment had been made for policy. Plaintiffs called as witness one of the firm of insurance brokers who testified he delivered the policy to plaintiffs and they paid him the premium. There was evidence tending to show the broker firm had authority to receive the premium, from the agents of the company. The proof of the delivery of policy, and of all the facts and circum- stances in connection with payment was proper for the jury. Newark Ins. Co. vs. Sammons, 110 111. 106. On question of notice of cancellation of policy prior to loss, company claiming notice to have been given to agents of assured, assured may prove he received no notice of such cancellation. In such case it is proper to show assured had received no such notice, as well as to prove the agents had no notice. Newark Ins. Co. vs. Sammons, 110 111. 166. Policy prohibiting the taking of further insurance without con- sent indorsed thereon, general agent wrote that company could not consent to second insurance, of which he had been informed, without further information. The desired information was given, to which no reply was made, and agent retained the policy with- out cancelling it, until after the loss. Such facts tended to prove waiver of prohibition against further insurance. Phoenix Ins. Co. vs. Johnston, 143 111. 106. — Parol: A policy of insurance must be taken as embodying the contract of the parties, and its terms cannot be chauged by parol. Schmidt vs. P. M. & F. Ins. Co., 41 111. 293. Typewritten rider will prevail over printed terms of policy where conflicting. Morris & Co. vs. E. I. Ins. Co., 181 App. 500. Whether an insurance broker acted as agent of assured or of company is a mixed question of law and fact, to be determined by the jury, under proper instructions, from all the evidence. 'Lumbermen 's Mut. Ins. Co. vs. Bell, 166 111. 400. It is competent to prove by parol that assured had obtained in- surance in other companies on same property. Knickerbocker Ins. Co. vs. Gould, 80 111. 388. Evidence of other policies taken out at same time admissible. Miller Natl. Ins. Co. vs. Milling Co., 60 App. 224. A w^aiver of right to rebuild, made by parol, may be shown, not- withstanding a subsequent w^ritten submission to arbitrators, its 724 INSURANCE admission not being a violation of the rule that parol evidence will not be received to vary the terms of a writing. Piatt vs. Aetnae Ins. Co., 153 111. 113. A party made application in writing, signed by him, for insur- ance upon property, gave his note, payable to insurance company, to agent of the company for the premium, and took from the agent a receipt showing the giving of the note, and stating that in case the policy should not be issued, the note was to be returned. These papers were regarded as the contract of the parties, which could not be varied or explained by parol. Winneshiek Ins. Co. vs. Holzegraf, 53 111. 516. Where the application provided that policy should bear date and take effect the day the application should be approved, it was not competent for party making application to i)rove by parol that, at the time, and prior to the execution of the contract, the agents represented to him that he would receive a valid policy of insurance from the company, to take effect and be in force from the date of the application, and that it was the usual and custom- ary practice of the company to issue policies upon such applica- tions, to bear date and take effect from the date of the application. The terms of the written contract could not be thus changed by parol evidence. Winneshiek Ins. Co. vs. Holzegraf, 53 111. 516. An insurance company cannot contradict the receipt of the premium contained in the policv, for purpose of avoiding it. I. C. Ins. Co. vs. Wolf, 37 111. 355; Helbig vs. Cit. Ins. Co., 120 App. 58; Teutonic Ins. Co. vs. Anderson, 77 111. 384; Spence vs. Central Ins. Co., 236 111. 444; XII 111. Notes 1152, §357. But where policy is cancelled and agent held return premium for insured, same may be shown in defense. M. Y. Ins. Co. vs. Bennoud, 45 App. 22. — Opinion Evidence: Evidence of insurance experts as to mean- ing of term "net receipts," as the same is understood in Cook county is not admissible, for the reason that the meaning of the term is a question of law and statute is applicable to entire state and not to Cook County alone. Natl. Fire Ins. Co. vs. Hanberg, 215 111. 378. Testimony of experts, as a general proposition, that the age of a building is material to the risk, is inadmissible, in absence of proof that the risk on the particular building covered by the policy was increased by a misrepresentation as to its age. Manufacturers' Ins. Co. vs. Zeitinger, 168 111. 286. Defendant's secretary was asked to state upon what proportion of the total value of personal property his company granted insur- ance. Such question was properly refused. What in fact was done in the case, not what was usually done, — was important. Witness was asked "You may state if, after the policy was issued by your company, you ascertained, at any time before or after loss, that insured, in his application, misrepresented value of the property?" Such question was improper, as calling for an opin- ion or conclusion of the witness, from the facts, instead of calling for the facts themselves. German Fire Ins. Co. vs. Grunert, 112 111. 68. INTENT 725 Opinions of experts as to increase of risk are admissible. Traders' Ins. Co. vs. Catlin, 163 111. 256; German Anier. Ins. Co. vs. Steiger, 109 111. 254. Insurance agents, merely because they are insurance agents, are not necessarily experts. Schmidt vs. Peoria M. & F. Ins. Co., 41 111. 295. — Report of Risks: Report, after policy had been issued, by an agent, not the one taking the application, is not admissible as part of the res gestae, to prove that assured had represented the property as unincumbered, when in fact there was an incumbrance upon it. Phoenix Ins. Co. vs. LaPointe, 118 111. 384. Proofs of Loss: Proofs of loss are properly admissible to show compliance with terms of policy, but not to be considered in ascertaining the amount of damages. Milwaukee Ins. Co. vs. Sehallman, 188 HI. 213. Policy nor preliminary proofs of loss are not evidence of value. Knickerbocker Ins. Co. vs. Gonld, 80 111. 388; Standard Ins. Co. vs. Wren, 11 App. 242. In case of defects in proof of loss, required to be made, it is the duty of the company to point out such defects and afford all reasonable facilities to assured to obviate them. An unwillingness or refusal of the company to afford reasonable facilities to assured to prepare and serve amended proofs of loss, is evidence for jury, as tending to show a waiver of defects. Ins. Co. of N. A. vs. Hope, 58 111. 75 ; G. W. Ins. Co. vs. Staaden, 2G 111. 360. Witnesses : Any witness acquainted with the property, and its value, or the value of like property, is competent to prove its worth, in suit to recover loss against insurance company. Lycoming Fire Ins. Co. vs. Jackson, 83 111. 302. INTENT See Separate and Similar Offenses, Thre-\ts, Accomplice, Pen- alities, Identity, Advancements, Alterations and Erasures, Fraud,' Fraud and Deceit, Fraudulent Conveyances, Abandon- ment, Dedication, Delivery, Deeds, Similar Facts, Contracts, Letters, Penalties, Timber, Fixtures, Divorce, Wills, Res Gestae, Agency, Adverse Possession, Libel and Slander, False Imprisonment, Gambling Contracts, Gifts, Intoxication, Par- ticular Offenses by Title. In Civil Actions: — Admissihilitu of Evidence : Both in civil and criminal suits, where the intent of the party becomes a material issue in the case, that partv may be asked the' direct question what his intention was at the particular time, or with respect to the particular act in ques- tion. In civil cases, however, where there is no evidence that such in- tention was communicated to the opposite party, and no circum- 726 INTENT stances from which it might be fairly submitted to the jury as a question of fact that the other party had notice of the particular intent, then the evidence should be excluded; not, however, on the grounds of incompetency but on that of inmiateriality. Dunbar vs. Armstrong, 115 Ajjp. 549; Partridge vs. Cutter, 104 App. 89 ; Odin Coal Co. vs. Denman, 84 App. 190 ; Kerting vs. Stur- tevant, 181 App. 53 7. — WJien Party May Testify Directly: The owner of land may testify as to what his intention actually was in alleged dedication, and this testimony is to be considered in connection with all the other facts and circumstances in the case. Township of Lovington vs. Adkins, 232 111. 510; Town of Bethel vs. Pruett, 215 111. 162; Town of Antioch vs. Seidschlag, 207 111. 280; City of Chicago vs. C. E, I. & P. Ry. Co., 152 111. 561. So on issue of fraud party may be asked direct question as to sale being made in good faith. Adverse party has right on cross- examination to ascertain details. Miner vs. Phillips, 42 111. 123. Where an act is performed by an officer, in the course of his official duty, he cannot be allowed to change the legal consequences resulting, by giving his private intentions. Town of Dayton va. Rutland, 84 111. 278. The intention of the parties when making a contract, if not mutual, is immaterial and cannot be shown. Ryan vs. Potwein, 60 App. 637. Nor is the testimony of parties as to what they understood their contract as meaning, or their motives in its creation, competent to affect its construction as between themselves or a third person. Williams vs. Fletcher, 30 App. 219. Circumstances may be shown to ascertain intent of parties to con- tract providing for liquidated damages. Ludlow Mfg. Co. vs. City of Chicago, 181 App. 388. A witness may testify to his own intention in doing an act, but it is not competent for him to testify to another's intention. Odin Coal Co. vs. Denman, 84 App. 190; Cihak vs. Klerk, 117 111. 643. Where defense is that transaction was a gambling contract, the right to testify as to intention depends upon whether facts and circumstances in the record so far connect the parties with the intent as to make it a fair question for the jury to determine from all the evidence whether it was the expressed or implied under- standing between the parties that no delivery was to be made, but settlement was to be made by differences only. Semler vs. Fyffe, 127 App. 514; Pardridge vs. Cutler, 104 App. 89. A party should not be permitted to state what his intention was, where it is not disclosed to the other. Scanlon vs. Warren, 169 111. 142; Dunbar vs. Armstrong, 115 App. 549; Benson vs. Morgan, 26 App. 22. See Fraudulent Con- veyances. Criminal Actions in General: . A criminal oft'ense consists in a violation of a public law in the commission of which there shall be a union or joint operation of act and intention, or criminal negligence. Story vs. People, 79 App. 562 ; Upstone vs. People, 109 111. 169. INTENT 727 A criminal offense consists in a violation of a public law, in the commission of which there must be a union or joint operation of act and intention, or criminal negligence, and the intention is man- ifested by the circumstances comiected with the perpetration of the offense, and the sound mind and discretion of the person ac- cused. Slattery vs. People, 76 111. 217. Law implies criminal intent from doing criminal act, when de- fendant fails to prove justification. Scott vs. People, 141 111. 195. A sane man is presumed to contemplate the natural and prob- able consequences of his own acts. Crosby vs. People, 137 111. 325. See Motive. Statutory Offenses: — In General: The defense of ignorance or mistake of fact in a criminal case may be admissible where the act, if done knowingly would be malum in se. But when the statute commands that an act be done, or omitted which, in absence of such statute, might have been done without culpability, ignorance of the fact or state of things contemplated hy the statute, it seems, will not excuse its violation. People vs. Nylin, 236 111. 19. Where the intent is mentioned as an element of the offense, cre- ated by law, it should be proven ; but where it is silent as to motive, no intent need be established. MeCutcheon vs. People, 69 III. 601. Where provision of statute is without limitation, it is not neces- sary to prove a guilty intent. Baekhans vs. People, 87 App. 173. It is undoubtedly the general rule that individuals charged with disobedience to penal laws cannot exonerate themselves on the ground of good faith or error of judgment, and it has been held that no excuse of this kind will avail against the peremptory words of a statute imposing a penalty. If the prohibited acts have been done, the penalty must be paid. Gilbert vs. Bone, 64 111. 518. In acts mala in se the intent governs, but in those mala proJiihitaf the only inquiry is has the law been violated. Schneider vs. Turner, 27 App. 220. "As a general proposition, intent must be shown before a con- viction of a criminal offense will be sustained. To this general rule there are some exceptions under provision of the statute, such as selling or giving intoxicating liquor to minors; a banker receiv- ing deposits when insolvent ; conversion of proceeds of sale by com- mission merchant ; attorneys and others failing to pay over money collected ; loaning public funds by public officers. In none of these cases is the act unlawful except by virtue of the statute. And in neither of these sections is there any qualifying words such as 'wilfully, knowingly, fraudulently, unlawfully, with intent to de- fraud.' While a penal statute must be strictly construed, it is 728 INTENT the duty of the court to seek to ascertain the will of the legis- lature. ' ' Siegel, Cooper & Co. vs. People, 85 App. 301. See also, Nicholson vs. People, 29 App. 57. Daxaiibekler vs. People, 93 App. 553 : Information charging dram shop with keeping a common nuisance. C. M. & St. P. Ry. Co. vs. People, 132 App. 531, Story vs. People, 79 App. 562: Complaints for allowing Canada Thistles to mature seed. Note: In neither of the offenses is intent or wilfuUness a part thereof, but in each conviction for violation of statute reversed because intention not shown. But in IMaguire vs. People, 219 111. 16, in felony prosecution for permitting female under age of eighteen years to stay in the house, and in Franklin Life Ins. Co. vs. People, 200 111. 594, N. Y. Life Ins. Co. vs. People, 95 App. 136, del)t for penalty for discriminat- ing between insurants, and I. & St. L. R. R. Co. vs. People, 91 111. 452, an action to recover penalty, the statute not making wilfuU- ness or intention a part thereof, proof of intent held immaterial. See also People vs. Zito, 237 111. 434, debt for penalty. — Intoxicating Liquors: The intent or good faith of the accused is not material, in prosecution for selling intoxicating liquors outside of the limits of an incorporated city in quantities of less than five gallons. People vs. Nylin, 236 111. 19. Upon indictment for selling intoxicating liquor to a minor with- out authority from his parents or guardian, it does not matter that the defendant did not know that such person was a minor. lie is bound to know whether such person is a minor or not. Gaul vs. People, 135 App. 445; Fariner vs. Peoi^le, 77 111. 322; Mc- Cutcheon vs. People, 69 111. 601 ; XIII 111. Notes 16, § 91. And it is not necessary either to aver or prove a guilty intent. Backhaus vs. People, 87 App. 173. iii! ^i Admissibility of Evidence: — Good Faith of Defendant: In prosecution against keeper of house of prostitution, for permitting an unmarried female under eighteen years of age to stay in the house, the people are not bound to prove knowledge by the keeper of the age of such inmate. Magiure vs. People, 219 111. 16. In prosecution for selling liquor in less quantity than five gal- lons, proof as to belief of defendant is immaterial. People vs. Nylin, 236 111. 19. The statute makes a sale of liquor, to a person in the habit of getting intoxicated, a crime, and that, too, without regard to the question whether the vendor had knowledge of the habits of the person to whom sale was made, or not, and testimony of defend- ant that he did not know that such person was in the habit of getting intoxicated, is inadmissible. Hanipler vs. People, 92 111. 400; Mapes vs. Peo]ile, 69 111. 523. A question to defendant as to whether or not he honestly be- lieved that during the time in question he was complying with all the liquor laws of the state, is improper, and objection should be sustained. Backhaus vs. People, 87 App. 173. INTENT 729 — Violation of Instructions h\j Agent or Employe: Proof, iu debt for penalty against life insurance company, for discriminat- ing between insurants, that agent had violated instructions, is inadmissible. I'liinklin Life Ins. Co. vs. People, 200 IU. 594; New York Life Ins. , . Co. vs. Peoi)le, 95 App. 136. So, in debt for penalty against railroad company, proof that em- ployes had violated instructions, inadmissible. I. St. L. E. E. Go. vs. People, 91 111. 452. Where defendant keeps intoxicating liquor for sale, he will be responsible for sale thereof by his clerks, no matter what may have been his instructions to them, and therefore such instructions are not admissible in evidence on his part, when indicted for selling such liquor. Noeoker vs. People, 91 111. 494. Acts and Declarations: Intent may be inferred from the acts of the person charged with crime, as well as by words and declarations. The intent with which the act is done, is a question of fact, either to be shown by the dec- larations of party, or to be inferred from the character, manner and circumstances of the act. Newman vs. People, 223 111. 324; Lathrop vs. People, 197 111. 169; Crosby vs. People, 137 111. 325. The intent may be inferred from the criminality of the act itself. Where an act, in itself indifferent, becomes criminal if done with a particular intent, there the intent must be proven and found ; but where the act is in itself unlawful, the proof of justification or excuse lies on defendant, and in failure thereof the law implies a criminal intent. People vs. Spoor, 235 111. 230; Scott vs. People, 141 111. 195. When Defendant May Testify Directly: When intent is of the essence of the offense, or an important element constituting the offense, defendant had the right to testify to what his intention was in the commission of the act with which he is charged. Wohlford vs. People, 148 111. 299 (assault with intent to inflict bodily injury) ; Mettler vs. People, 135 111. 410 (cutting timber) ; Lane vs. People, 142 App. 571 (obtaining property under false pre- tenses) ; Lynch vs. People, 137 App. 444 (malicious mischief) ; People vs. Eudorf, 149 App. 215 (prosecution for unlawful sale of liquor). Opinions of Witnesses: Opinion of witness as to intention of another person is inad- missible. Walker vs. People, 133 111. 110. Similar Offenses: AVhenever in a conspiracy or other similar case it is necessary to prove a particular intent, and the evidence in regard to the crime charged tends to show two intents as to one or more of the de- fendants, one intent being an innocent or other intent than the one charged, and the other intent being the corrupt intent charged, evidence of other similar offenses is admissible as to such defend- ants for the sole purpose of proving such corrupt intent, if such evidence tends to prove such intent. 730 INTEREST Generally speaking, evidence of other crimes is admitted to prove the specific intent charged when it tends to establish (1) motive; (2) intent; (3) the absence of mistake or accident; (4) a com- mon scheme or plan embracing the commission of two or more crimes so related to each other that proof of one tends to estab- lish the others; (5) the identity of the person charged with the commission of the crime on trial. People vs. Pouchot, 174 App. 4. (See Separate and Similar Of- fenses.) INTEREST See Usury, Foreign Law. Defined : Interest is the compensation which is paid by the borrower of money to the lender, for its use; and, generally, the debtor to his creditor, in recompense for the detention of the debt. Sorenson vs. Central Lbr. Co., 98 App. 581. Presumptions : Where no specific agreement was entered into, the law will pre- sume the legal rate w'as intended. ■i'.U\: jr Knohbloch vs. Eomeis, 34 App. 577; Prevo vs. Lathrop, 2 111. 304; XII 111. Notes, 1212, §35. Contract to pay interest may be implied from custom and usage, but such usage must be uniform, long established and generally acquiesced in and so well known as to induce belief that the parties contracted with reference to it when nothing was said to the con- trary. Turner vs. Dawson, 50 111. 85 ; Ayers vs. Metealf, 39 111. 307. Legal implication from words used in the notes, viz, ''interest at six per" is that they were to bear interest at the rate of six per cent per annum. FitzGerald vs. Lorenz, 181 111. 411. So interest will be implied if word interest is abbreviated. Gramer vs. Joder, 65 111. 314; Thompson vs. Houghland, 65 111. 310. Or from other abbreviations. Belford vs. Beatty, 46 App. 539; Williams vs. Baker, 67 111. 238. Admissibility of Evidence: — Kate Usually Paid: "Where there is a question as to the amount of the interest agreed upon, evidence of the rate usually paid at the time of the transaction is admissible. Knobbloch vs. Eomies, 34 App. 577. — Circumstantial Evidence : Implied agreement may be proven by circumstantial evidence. Turner vs. Dawson, 50 111. 85; Ayers vs. Metealf, 39 111. 307. Weight and Sufficiency: — Vexatious and Unreasonahle Delay: To justify the allowance of interest for unreasonable and vexatious delay, the debtor must have in some way thrown obstacles in the way of the collection of the claim, or by some circumvention or management of his own have induced the creditor to delay proccQclings far collection longer than he would otherwise have done. Whittemore vs. People, 227 111. 453; Co. of Franklin v£. Layman, 145 111. 138; XII 111. Notes 1210, §24. INTEREST 73] Delay in payment in order to justify allowance of interest must be both unreasonable and vexatious. Keinpton vs. People, 139 App. .563. Something more than mere delay and appearing and defending an action is essential to establish unreasonable and vexatious delay. Espcrt vs. Ahlsehlager, 117 App. 484. Evidence which tends to show a refusal to pay until the creditor shall do something in law he is not required to do, establishes un- reasonable and vexatious delay. Amer. F. & M. Co. vs. Lindsay Chair Co., 129 App. 548. Unreasonable and vexatious delay of payment such as will justify the allowance of interest appears as to an amount in suit, which, both prior and subsequent to the suit, was conceded to be due ancl was w^ithheld merely to enforce settlement of the amount disputed. Borden Co., vs. Frazer Co., 118 App. 655. Something more than mere delay of payment must be shown. Maynard vs. Eichards, 166 111. 466; Devine vs. Edwards, 101 111. 138 ; Hill vs. Allen, 13 111. 592. Is a question of fact. Union El. Ky. Co. vs. Nixon, 99 App. 502 ; Davis vs. Kenega, 51 111. 170; Kennedy vs. Gibbs, 15 111. 406. Where interest is allowable by virtue of statute, it is not essen- tial to allowance that claim therefor be made in bill of particulai:s. Myers vs. Johnson, 122 App. 87. Laws of Sister State: Court will not take judicial notice of interest laws of another state. They must be established. Dearlove vs. EdAvards, 166 111. 619; Morris vs. Wibaux, 159 111. 627; Hall vs. Kimball, 58 111. 58; Eobinson vs. Holmes, 75 App. 203. Interest is allowed at the rate fixed by the law of state in action on judgment had in sister state. Britton vs. Chamberlain, 234 111. 246; Morris vs. Wibaux, 159 111. 627; "\^'arreu vs. McCarty, 25 111. 95. Where contract made in another country and payable therein is silent as to rate of interest, the lex loci will determine the rate to be followed, if any, in absence of law of the place of the con- tract, and payment being pleaded and proven. Where the rate of interest sought to be recovered is greater than that provided by statute where the remedy is sought to be enforced; and the law of the place of payment is pleaded and proven as allowing a greater interest than that where the remedy is sought, then the lex loci may be invoked to show the contract is legal and the true interpretation of the parties framing it. Morris vs. Wibaux, 159 111. 627; Sherman vs. Gassett, 9 111. 521. The burden of proving a note or contract to be usurious un,der the law of a sister state is upon party alleging it. ''^ ^^'''' Walker vs. Lovett, 250 111. 543; Dearlove vs. Edwards, 166 111. 619; Raid vs. North Lumber Co., 146 App. 371. INTERLINEATIONS See Alterations and Erasures. 732 INTERESTED WITNESS INTERESTED WITNESS See Parties and Persons Interested as Witnesses. INTERPRETATION OF WRITINGS See Parol. INTERPRETER Right to Call: Under the provision of the constitution requiring all judicial proceedings to be conducted in the English language, courts should require witnesses to testify in English if it is possible, and it should be shown that a witness is unable to testify in English before an interpreter is permitted to be called. Hackart vs. Decatur Coal Co., 243 111. 49. Whether or not an interpreter for a witness should be called is in the discretion of the trial court. Brzozowski vs. Natl. Box Co., 104 App, 338. Where the trial court refused to swear a person to interpret the testimony of a witness unable to speak our language, and refused to allow counsel to state the facts he expected to prove by such witness, error may be assigned upon such refusal without the party being required to show the materiality of the testimony thus lost. C. & A. E. E. Co. vs. Schenck, 131 111. 283. When a foreigner not conversant with our language, testifies, and it appears that the facts can better be elicited by the use of an interpreter, a competent interpreter should be used, even at the expense of some loss of time. It is not desirable that the court, jury and counsel should guess at the meaning of what a witness is saying, or that a witness should guess at the meaning of ques- tions asked of him. Hickey vs. CM. City Ey. Co., 148 App. 197. Competency: — Province of Court: Some degree of discretion must be vested in the trial court as to who shall be employed as an interpreter, but it is not to be exercised so as to deprive a party altogether of the testimony of his witness so long as an interpreter is offered against whom there is no legal objection. C. & A. Ey. Co. vs. Schenck, 131 111. 283. An interpreter should not be appointed who would reasonably be expected to be unfair and biased in his translation of testimony ; a degree of discretion must be necessarily vested in the trial court. People vs. Eardin, 2.55 111. 9. — Where Interpreter Witness: There is no legal presumption that because a person has been called as a witness by one of the parties to the suit, and has testified in his behalf, he is thereby so far biased or prejudiced in favor of the party calling him as not INTERPRETER 733 to be trusted to fairly and impartially interpret between the court and another witness called by the same party. C. & A. E. K. Co. vs. Schenk, 131 111. 283. Where a person offered to interpret the testimony of a witness unable to speak the English language is otherwise qualified, and there is no objection to be urged against him except that he has been called and examined as a witness by the party offering him, he should not be rejected. C. & A. R. R. Co. vs. Schenk, 131 111. 283. — Relationship to Witness: The fact that the interpreter secured to interpret the testimony of a prosecutrix is distantly related to such witness does not render him incompetent. People vs. Rardin, 255 111. 9. ^ — Prelifninary Examination: For the purpose of a preliminary examination to enable the court to determine whether a witness and her interpreter can understand each other sufficiently, it is not necessary that either be sworn, and if no objection is made to the presence of the jury or to the fact that the parties were not sworn, the action of the court in permitting them to state that the defendants assaulted and raped the witness cannot be reviewed, even though the question calling forth such statements was ob- jected to. People vs. Westou, 236 111. 104. — M cabling of Word: Where evidence is given through an in- terpreter and there is a dispute as to the meaning of any word in a foreign language, it is proper to require the interpreter to give the primary meaning of all the words used in connection with the word in dispute, so that the jury may be enabled to determine its meaning in case of a disagreement between interpreters, and other witnesses versed in the language may also testify as to the meaning of an important word. Schnier vs. People, 23 lU. 11. Deposition: A deposition taken abroad, the answers of which are written down in the words of the witness in a foreign tongue, when offered in evidence, stands as the testimony of the witness, and may be interpreted in the same way. But the translation may be shown to be erroneous. - Christman vs. Ray, 42 App. 111. Deceased Witness: The objection that the interpreter through whom deceased wit- ness testified was not produced must be specifically made at the trial, and will come too late when first made in a court of review. Leutgert vs. Voelker, 153 111. 385. Best Witness: If conversation has been had with a person with the aid of an interpreter, such interpreter is the best witness as to what conver- sationally took place. Szczeck vs. Chi. City Ry. Co., 157 App. 150. Witness' Statement as Exhibit: Where witness testifying through interpreter is unable to ex- 734 INTESTACY press clearly the fact to which he is testifying, a writing prepared by him to make himself understood is incompetent as an exhibit. Poreba vs. 111. M. Cool Co., 156 App. 140. Document in Foreign Language: A document in foreign language is improper as evidence when unaccompanied by translation. Stone vs. Evan. Lutheran Cliurcli, 92 App. 77. INTESTACY Presumption : — In General: As a general rule, sub,ject to a few exceptions, a party is not required to prove a negative fact. Testacy is an affirmative and intestacy is a negative fact. Where, therefore, an ancestor's death is proven, it will, in the absence of proof to the contrary, be presumed that he diad intestate, and that the title to his land has passed to his heirs by descent. If other persons than the heirs claim as devisees, it devolves upon them to establish their right, and the heir need not prove that no one holds as devisee or grantee from his ancestor. Sielbeek vs. Grothman, 248 111. 435; Lyon vs. Kain, 36 111. 362; Schmidt vs. Brown, 226 111. 590; Whitman vs. Ellsworth, 259 111. 243. — Where Will Established: It will be presumed that when a person dies testate he intended by his will to dispose of all his property and leave no part as intestate estate. Eyer vs. Williamson, 256 111. 541; Karsten vs. Karsten, 254 111. 480; Felkel vs. O'Brien, 231 111. 329; Lewis vs. Sedgewiek, 223 111. 213; Northern Trust Co. vs. Wheaton, 249 111. 606. This is only a presumption and cannot be permitted to overcome the express language of the will. Thomas vs. Thomas, 229 111. 277; Wixon vs. Watson, 214 111. 158; Jacobs vs. Ditz, 260 111. 98. INTOXICATION Opinion and Expert: — In General: Intoxication or drunkenness is a fact which may be proven as other facts are proven. A witness, by observation and by the exercise of his perceptive faculties, his five senses, can learn and know facts, and such facts he may state. He would not be confined to a detail of the combination of minute appear- ances that have enal)led him to ascertain the fact of intoxication. The details of conduct, attitude, gesture, words, tones and expres- sion of eye and face may be stated by him, or he may state the fact of intoxication, a fact which he can ascertain by personal observation, as he ascertains other facts. So, also, a witness may state whether or not a person had the appearance of being intox- icated, and such statement of appearance would be the statement of a fact. Facts which are latent in themselves, and only discover- able by way of appearances more or less symptomatic of the exist- INTOXICATION 735 ence of the main fact, may, from their very nature, be shown by the opinions of witnesses as to the existence of such appearances or symptoms. Sanity, intoxication, the state of health or of the affections are facts of this character. City of Aurora vs. Hillaiuu, 90 111. Gl; Chi. City Ey. Co. vs. Wall, 93 App. 411. Whether a person is nervous, excited or cahn, or whether drunk or sober, are facts patent to the observation of all, and their com- prehension requires no particular scientilic knowledge, and may be testified to by any one who knows the facts. Dininiiek vs. Downs, 82 111. 570. Any one may express opinion as to whether another was intox- icated. Parker vs. Parker, 52 App. 333. The fact that a person is admitted to institution for treatment does not alone raise presumption that such person is addicted to excessive use of intoxicants. Marreu vs. N. A. V., 145 App. 375. A party may testify that he was not under the infiuence of in- toxicating liiiuor at a certain time, and it is not necessary to con- fine his testimony to the quantity of liquor he had consumed. Ward vs. Chi. City Ky. Co., 237 111. 633. But one seeking to show intoxication is not precluded by denial. Intoxication may be evidenced by the personal conduct, by predis- posing circumstances. .. . Miller vs. People, 216 111. 309. "' Non-expert may testify that matter vomited contained whiskey. Marschall vs. Laughran, 47 App. 29. Opinions that intoxication alleged in suit was the same as that for which suit had already been brought, are incompetent. Maloney vs. Daily, 67 App. 427. Where witnesses are able to speak from own personal observa- tion, they may state that another was in habit of becoming intox- icated. Gallagher vs. People, 120 lU. 179. — Form of Question: "How did he appear to you, with refer- ence to whether he had been drinking?" In action for personal injury. Held error to sustain objection to question. Chi. City Ey. Co. vs. Wall, 93 App. 411. "State whether or not, from what you saw at this time, if the parties, or either of them, was, in your opinion, under the influence of liquor!" Court says, "Question called for a mere expression of opinion from what witness saw, and his opinion, if stated, might have been one derived not from personal appearance and conduct of the men." City of Aurora vs. Hillman, 90 111. 61. As a Defense in Civil Action: — Negligence: Proof of intoxication at time of injury is com- petent as tending to show want of ordinary care. Keeshan vs. E. A. & S. Trac. Co. 229 111. 533; City of Aurora vs. Hillman, 90 111. 61; I. C. E. E. Co. vs. Cragin, 71 111. 177; City of Eoek Island vs. Vanlandschoot, 78 111. 485; Ward vs. Chi. City Ey. Co., 237 111. 633; Chi. City Ey. Co. vs. Lewis, 5 App. 242; E & B. Trac. Co. vs. Brown, 129 App. 62; L. E. & W. Ey. Co. vs. Zoffinger, 107 111. 199; XIII 111. Notes 949, § 103. 736 INTOXICATION Voluntary intoxication does not constitute negligence in law, but proof of the fact is competent to be considered in determining whether the person was taking that care for his safety which a person, reasonably prudent, would take under the same circum- stances. (Person injured not a passenger.) S. Chi. St. By. Co. vs. Dufresne, 200 111. 456 ; C, E. I. & P. Ey. Co. vs Bell, 70 111. 102; T. P. & W. Ey. Co. vs. Eiley, 47 111. 514. If a passenger is known to be in any manner affected by a dis- ability, physically or mentally, whereby the hazards of travel are increased, a degree of attention should be bestowed to his safety beyond that of an ordinary passenger, in proportion to the liabil- ity to injury from the want of it. Burke vs. C. & X. W. Ey. Co., 108 App. 565. Evidence that plaintiff had taken one glass of beer during the evening of the accident, and was accustomed to drink a "little beer, ' ' is not sufficient upon which to base an instruction as to ques- tion of want of ordinary care from intoxication. Marech vs. City of Chicago, 89 App. 358. Habits : — Negligence: "Where there are no eye-witnesses to the killing of a person, proof that deceased was of careful habits is competent, and in such case proof that deceased was a sober, industrious man tends to prove that he was, at time of accident, in exercise of proper care. StoUery vs. Cicero St. Ey. Co., 243 111. 290 ; I. C. E. E. Co. vs. Nowicti, 148 111. 29; I. C. E. E. Co. vs. Cozby, 174 111. 109. But evidence of habits of deceased with reference to temperance is inadmissible in action for damages for his death, where the fact whether he was under the influence of liquor at the time of his death is capable of direct proof by witnesses who saw him at and just before the time of the accident. C. & A. E. E. Co. vs. Pearson, 184 111. 386. Defense in Criminal Action: — I)h General: Voluntary intoxication furnishes no excuse for crime committed under its influence, even if the intoxication is so extreme as to make the author of the crime unconscious of what he is doing, or to create a temporary insanity. Upstone vs. People, 109 111. 169; Dunn vs. People, 109 111. 635; Fitz- Patrick vs. People, 98 111. 269; XI 111. Notes 1233, § 22. — Intent: Where it is necessary to prove a specific intent be- fore a conviction can be had, it is competent to prove and it may be shown in defense that accused was at time of act, so intoxicated as to be incapable of forming the intent. Bruen vs. People, 206 111. 417; Addison vs. People, 193 111, 405; Schwabacker vs. People, 165 111. 618. On a charge of larceny, it may be shown that at the time of the taking, and for some time afterwards, defendant was under the influence of intoxication caused by the fraud or contrivance of some other person, for the purpose of inducing him to commit or aid in committing the larceny. Bartholomew vs. People, 104 111. 601. INTOXICATION 737 Wlien without intoxieatiou, the hiw would impute to the act a criminal intent, as in the ease of wanton killing without provoca- tion, drunkenness is not available to disprove such intent. Upstone vs. People, 109 111. 169; Rafferty vs. People, 66 111. 118; Doyle vs. People, 147 111. 394. When the nature and essence of the ofifense is by law made to depend upon the state or condition of mind of accused at the time and with reference to the acts done, drunkenness as a fact affect- ing the control of the mind is proper for consideration of jury. Crosby vs. People, 137 111. 325. — Admissibility of Evidence: Intoxication may be evidenced by the person's conduct, by predisposing circumstances, — that is, by the drinking of intoxicating liquors or by the condition of in- toxication prior or subsequent to the time in question, but within such time as that the condition might be supposed to continue. Miller vs. People, 216 111. 309. If, on the trial of a person for shooting another, it is claimed by the defense that accused was hopelessly drunk, it is not im- proper to allow witness for the People to testify they made a test of the revolver offered in evidence as the one with which shot was fired, and as to the number of pounds pressure on the trigger it required to discharge it. Collins vs. People, 194 111. 506. On trial for murder, court is justified in refusing to permit thir- teen-year-old daughter of accused to express opinion as to whether her father's condition on night of crime was such as to render him unconscious of his acts and surroundings. Collins vs. People, 194 111. 506. Of Witness: Intoxication to a degree that it affects the capacity of the wit- ness to see, understand and remember what was transpiring may always be proven. Miller vs. People, 216 111. 309. Cross-examination to show excessive use of intoxicants is legiti- mate with a view to affecting credibility of witness. Woods vs. Daily, 211 111. 495; McCauley vs. Chi. City Ey. Co., 163 App. 176. Evidence as to whether the witness, even though it be the ac- cused testifying in his own behalf, was intoxicated, at time of oc- currence as to which he is testifying, is competent as tending to show his ability to see, understand and remember what was trans- piring. One entitled to prove that a witness or party was intoxicated at a particular time is not concluded by the denial of such witness or party that he was drunk, but may show the drinking of intoxi- cants by the witness or party so recently before the time in ques- tion, and in such quantities as would most probably produce intoxication. Miller vs. People, 216 111. 309. JEOPARDY See Former Jeopardy. Ev.— 4 7 738 JUDGE'S DOCKET AND mNUTES JUDGE'S DOCKET AND MINUTES Admissibility : — To Show Judgment: The minutes of the judge are not evi- dence of a judgment. Guinea vs. Seeley, 66 111. 500; Trodgen vs. Cleveland Stone Co., 53 App. 206; Sattler vs. People, 59 111. 68; XII 111. Notes 490, § 112. — Not a Record: The minutes or memoranda which the judge makes upon his own docket, and which the law does not require him to make, but which are merely kept by him for his own con- venience, and to enable him to see that the clerk accurately makes up the record, do not constitute a record. McCormick vs. Wheeler, 36 111. 114. They cannot be substituted for the record of the court. It alone is competent to prove that which is required to be proved by the record. McGuire vs. Goodman, 31 App. 420. (See Eecords.) — To Amend Record: The judge's minutes are competent evi- dence upon which record of a judgment may be amended. Gillett vs. Booth, 95 111. 183; Milliard vs. Cooper, 10 App. 47. Such minutes must be proven by the production of the proper docket, and showing by inspection that there is a minute, and it cannot be explained or enlarged by parol evidence. Gillett vs. Booth, 95 111. 183. The memorial paper or minute must be official or quasi official note or memorandum paper remaining in the files of the cause. Hubbard vs. People, 197 111. 15. It must be made and preserved as a part of the record. A private docket or memorandum of a witness is not sufficient. Wesley Hospital vs. Strong, 233 111. 153. The rule in this respect is the same in chancery as at law. Tosetti Brew. Co." vs. Koehler, 200 111. 369; Towne vs. Howieson, 175 111. 85; Culver vs. Cougle, 165 111. 417. Although these minutes are a proper means of amending the record, still, until the amendment is made, the public can act upon no other means of information than the official records of the court, as kept by an officer appointed by the law for that purpose. McCormick vs. Wheeler. 36 111. 114. — To SJmw Probate of Will: On bill to contest will, the ad- mission of minutes of a judge of probate, endorsed on will, show- ing that it was proved and admitted to probate is error. W^eston vs. Teufel, 213 111. 291. JUDGMENTS See Records, Best and Secondary, Judge's Docket and Min- utes, Former Adjudication, Former Conviction, Identity, Service, Coroner's Inquest, Wills, Insurance, Foreign Judg- ments. Admissibility in Evidence: — Between Same Parties: A judgment or decree is, in general, JUDGMENTS 739 evidence only in suit between the same parties thereto or their privies. Gage vs. Goudy, 141 111. 215; Whitaker vs. Wheeler, 4-4 111. 440; Clay- ton vs. Clayton, 250 111. 433. But otherwise where it is not introduced as binding the party but merely as tending to establish a link in a chain of title. Gage vs. Goudy, 141 111. 215. And is admissible where party justifies thereunder. Hanna vs. Drovers Natl. Bank, 194 111. 252. Or to show what was claimed and the bringing of suit therefor. Miller vs. Chrisman, 25 111. 2(59. Decree may be admissible notwithstanding prosecution of writ of error and granting of supersedeas. Brown vs. Scbintz, 203 111. 136. Where record is offered to establish a collateral fact, only so much as tends to establish the same need be introduced. Mayer vs. Brensinger, 180 111. 110. A creditor instituted proceedings by attachment against three; judgment in personam was obtained against one, and a judgment in rem against the others. On scire facias to make the latter parties to the personal judgment, to which plea of non-assumpsit was in- terposed, going back to the original cause of action, neither the judgment in personam against the other party, nor the judgment in rem against defendant in scire facias was evidence against the latter, in that proceeding, as to amount due. Conwell vs. Thompson, 50 111. 330. — Strangers: The record of a judgment is always admissible, even between stranger to it, to prove that the judgment was ren- dered and for what sum, but it is not admissible to prove the truth of any fact upon which the judgment was founded. Feitl vs. Chi. City Ry. Co., 211 111. 279. Records of courts are not competent to show that facts pleaded are generally known. Howard vs. 111. T. & S. Bank, 189 111. 568. The record of a former suit is not admissible as against a stran- ger to it, to prove mental incapacity of complainant in former suit. Bollnow vs. Eoach, 210 lU. 364. The reversal of a confirmation judgment has no effect upon the judgment as to other property, the owners of which did not ap- peal, and the record of the appealed case is inadmissible upon ap- plication for judgment of sale against the other property, for the purpose of showing that the ordinance upon which such special assessment was founded was held invalid by the supreme court. Goldstein vs. Milford, 214 111. 528. A decree against a corporation, finding its liability and the amount of its indebtedness is inadmissible in evidence against a stockholder of such corporation who was not a party to the decree, either actually or consti'uetively. Chestnut vs. Peunell, 92 111.' 55, The record of a judgment of the county court, approving an executor's report is not admissible against a stranger to the pro- 740 JUDGMENTS BY CONFESSION ceedings, in order to charge him with notice of facts claimed to have been shown by such report. Lang vs. Metzger, 20G 111. 475. A decree in a suit for partition of land by heirs, which finds the allegations of the petition true, among which is that of the death of a person and the heirship of the parties, is prima facie evidence of the death and heirship, against the party in ejectment, though he was not a party or privy to the partition suit. Delano vs. Bennett, 90 111. 533. — Principal and Surety: Where a person is responsible over to another, and he is notified of the pendency of a suit involving the subject matter of indemnity, his liability will be fixed and determined by the judgment rendered therein, and notice to him will be implied where he has knowledge of the pendency of the suit and participates in the defense thereof. Meyer vs. Purcell, 214 111. 62; Drennan vs. Bimn, 124 111. 175. A judgment against a principal, where the surety has been noti- fied and had opportunity to defend, is prima facie evidence as to amount of damages in suit against surety. Henry vs. Heldmaier, 226 111. 152. A judgment of the probate court, upon final settlement of guar- dian, asserting the balance due the ward, is conclusive upon the questions and upon his sureties, in action upon his bond. Eyan vs. People, 165 111. 143; Cattleman vs. Guthrie, 142 111. 357; Gillette vs. Wylie, 126 111. 310; XII 111. Notes 880, §92. A judgment against an executor, finding the amount due, by the executor, as such, to the estate, is binding on the sureties upon collateral attack in suit on bond. Neavitt vs. Woodborn, 160 111. 209. — Master and Servant: The record of a judgment against the master for negligence of his servant, is admissible in subsequent suit by the master against the servant to prove the fact that such judgment had been recovered against the master for such amount, and upon such and such allegations, but not to prove that either of these allegations are true, unless in certain cases where the ser- vant or agent has undertaken the defense, or being bound to in- demnify, has been required to assume it. Feitl vs. Chi, City Ry. Co., 211 111. 279. — Tort Feasors: A judgment against one of several joint tort feasors is not a defense in a suit against the others, when not sat- isfied. Eoodhonse vs. Christian, 158 111. 137. — Criminal Judgment: A criminal judgment is inadmissible in a civil suit. Gorbley vs. Wilson, 71 111. 209. JUDGMENTS BY CONFESSION See Default. Vacation of: — In General: On motion to vacate a judgment confessed by authority, and for leave to plead, the question is not whether the judgment should be set aside because of errors of law, but whether JUDICIAL NOTICE 741 there exists any equitable reason for opening the judgment to let in a defense. Mojses vs. Schendorf, 238 111. 232; Pearce vs. Miller, 2U1 111. 188; Mumford vs. Tolman, 157 111. 258. — Counter Affidavits: Are admissible. Moyses vs. Schendorf, 238 111. 232; Pitts vs. Magie, 24 111. 610; Lake vs. Cook, 15 111. 353; Heney vs. Alcoek, 9 App. 431; Contra, McCor- mick vs. Liimis, 165 Apji. 214. "If the case is involved in doubt or the testimony is so contra- dictory that the truth cannot be ascertained with reasonable cer- tainty, an issue should be directed to try the question ; in other words, the defendant should be let into a defense on the merits." Lake vs. Cook, 15 111. 353. The only question is whether such a case was presented by the affidavits read on both sides as should be submitted to the decision of a jury. Pitts vs. Magie, 24 111. 610. "If the affidavits, when considered", should disclose a clear and equitable reason for opening* the judgment and allowing defend- ant to plead, then it would be the duty of the court, in the exercise of such equitable powers, to so order. Affidavits are considered altogether. ' ' Pearce vs. Miller, 201 111. 188. "Court cannot try issues on affidavits. If the affidavit of defend- ant showed a prima facie case of a good defense, it is the duty of the court to open up the judgment and allow such defense to be made, and the issue to be tried by a jury. ' ' Dionne vs. Matzenbaugh, 49 App. 527; Bertman vs. Thompson, 136 App. 621. Note : Foregoing cases are those of judgments by confession. Following cases, Gilchrist Trans. Co. vs. Nor. Grain Co., 204 111. 510; Hartford Life Ins. Co. vs. Rossiter, 196 111. 177; Hafling vs. VanZandt, 162 111. 162; Palmer vs. Harris, 98 111. 507; Boyle vs. Levi, 73 111. 175; Swigart vs. Holmes, 96 App. 43; Holiday vs. Tuthill. 94 App. 424, are motions to set aside default, and not to vacate judgments by confession. Counter affidavits held admis- sible. In Gilelirist Trans. Co. vs. Northern Grain Co., supi'a, Court says: "Counter affidavits are admissible. It is necessary for defendant to show a defense prima facie on the merits, but the court is not authorized to try merits of case on affidavits." JUDICIAL NOTICE See Legislative Acts and Journals, Foreign Law, Customs AND Usages, Abbreviations, Interest. MATTERS RELATING TO COUNTIES. Boundaries : Courts nuist take notice of statutes defining boundaries of counties. Ross vs. Reddick, 2 111. 7.3. Names : Court will take judicial notice of the names of the counties in this state. Higgins vs. Bullock, 66 111. 37. 742 JUDICIAL NOTICE Population : And population of a county according to the preceding United States census. Worchester Natl. Bank vs. Chenev, 94 111. 430; Peoi>le vs. I. C. E. E. Co., 237 111. 324. Judicial notice will be taken that few counties in the state have a population of over fifty thousand. Klokke vs. Dodge, 103 111. 125. County Seat: Courts will take judicial notice of the result of an election on the question of the removal of the county seat, as a fact connected with the organization of counties, where the question is drawn in issue collaterally. Andrews vs. Knox, 70 111. 65. Support of Poor: That, by public statutes, the duty of supporting the poor is im- posed upon the counties of the state, except as otherwise pro- vided by special or public law. People vs. Hill, 163 111. 186. Org-anization : That a particular county is or is not acting under township organization. Gilbert vs. Natl. Cash Eer^. Co., 176 111. 288 ; Jones vs. Town of Lake View, 151 111. 663; Brinier vs. Madison County, 111 111. 11; People vs. Suppiger, 103 111. 434; Myers vs. Wiltshire, 92 111. 395; XII 111. Notes, 474, § 9. And that a county has adopted township organization. Phillips vs. Town of Scales Mound, 195 111. 353; County of Eock Island vs. Steele, 31 111. 543. Geographical Facts: Of the division of the state into counties. Dickison vs. Breeden, 30 111. 279; Higgins vs. Bullock, 66 111. 37; Gooding vs. Morgan, 70 111. 275. And that a particular. town is in a certain county. Harding vs. Strong, 42 111. 148; People vs. Suppiger, 103 111. 434. And of the relative locations of such towns with respect to each other. Gunning vs. People, 189 111. 165. Judicial notice is taken of county in which incorporated town is located. Gilbert vs. Natl. Cash Eeg. Co., 176 111. 288. And so it will notice that a particular city of the state is in a certain county. Sullivan vs. People, 122 111. 385; Linch vs. Litchfield, 141 111. 469. And the location of townships within the state. Town of Eeading vs. Wedder, 66 111. 80; Cornshoek vs. People, 56 App. 467. That a section of a certain number in a certain township and range is in a particular county. Eoss vs. Eeddiek, 2 111. 73; Smith vs. Stevens, 82 111. 554; Dickinson vs. Hendryx, 88 111. 66. Where real property is shown to be located in a city, the court will take judicial notice of the county in which same is situated. Linck vs. Litchfield, 141 111. 469. JUDICIAL NOTICE 743 And that there are several sections of the same number in a county. People vs. Dragston, 100 111. 286. Officers and Courts : — Courts: The court will take judicial notice that a particu- lar county is not one of a class entitled to a probate court. Morris vs. Morris, 12 App. 68. And of the establishment of a separate probate court in a cer- tain county. Co. of La Salle vs. Milligan, 143 111. 321. — Civil Officers: Court will take judicial notice of the civil officers of the county in which it holds its sittings. Dire vs. Flint, 21 111. 80. — Justice of Peace: Courts will judicially notice who are the justices of the peace in the county where the court is sitting, and also their official acts; but where the official acts of a justice are offered in evidence in a county other than that in which he re- sides, they must be accompanied by a certificate, from the proper officer, of the official character of the justice. Gilbert vs. Natl. Cash Eeg. Co., 176 111. 288; Chambers vs. People, 5 111. 352; Shattuck.vs. People, 5 111. 478. — Judges: The supreme court will take judicial notice of who are the county judges. Fisher vs. Citv of Chicago, 213 111. 268. MATTERS RELATING TO CITIES. Incorporation Under General Law: The courts will take judicial notice of the existence of all vil- lages and cities organized under the general law; the statute ex- pressly so provides. Welsh vs. Shumway, 232 111. 54; Citv of Eoek Island vs. Cuinely, 126 111. 408; Harmon vs. City of Chicago, 110 111. 400; Potwm vs. Johnson, 108 111. 70; Canal Comrs. vs. E. Peoria, 75 App. 450; XII 111. Notes, 474, § 10. If it appear from the record that a municipality has exercised corporate powers under a general law, courts may take notice of its organization without proof that all the requirements of the statute have been complied with. Doyle vs. Bradford, 90 111. 416. — Change: The court is required to take judicial notice of the change of organization of any town or city from the original organization to organization under the general incorporation act for cities. Jones vs. Town of Lake View, 151 111. 663. Charter : Courts will take notice of provisions of charter of municipal corporations. People vs. Knopf, 186 111. 457; City of Rock Island vs. Cuinely, 126 111. 408; Gormley vs. Day, 114 111. 185; People vs. Wilson, 3 App. 368. Ordinances : Judicial notice will not be taken of ordinances of cities. People vs. Bvisse, 248 111. 11; People vs. Heidleberg, 233 111. 290; Stott vs. City of Chicago, 205 Til. 281; O 'Hare vs. Lieb, 66 App. 549; Weaver vs. Sno\Y, 60 App. 624. 744 JUDICIAL NOTICE Nor of tlie repeal of ordinances. Hanna vs. Kankakee, 3-4 App. 186. Whether office of city attorney is created by ordinance for a certain city is a matter of proof, as courts do not take judicial notice of what offices have been established by city ordinances. Condon vs. City of Chicago, 249 111. 596. But the municipal court of Chicago is authorized to take judicial notice of the ordinances of that city. City of Chicago vs. Baker, 157 App. 130. Courts do not take judicial notice of the city ordinances, and if the relator in an information of quo warranto to test the valid- ity of a dramshop license relies upon special ordinance obtaining only in the locality vv^here the respondent is conducting the dram- shop, such ordinance must be pleaded. People vs. Heidleberg Garden Co., 233 111. 290. Alleys and Sidewalks: Courts will take judicial notice that alleys are not provided with sidewalks, but not that a particular alley has none. Burton Co. vs. Chicago, 236 111. 383. Business Improvements: Of the common knowledge of all men who have watched the character of business improvements made in the business center of Chicago, and that many buildings are erected under long time lORSGS- Denegre vs. Walker, 214 111, 113. Disconnection of Territory: Of the laws of 1901, repealing the laws of 1879, authorizing the disconnection of territory from cities and villages on petition to the city council or village trustees, without the filing of a formal supplemental plea, as such is a public act. Vance vs. Eankin, 194 111. 625; City of Charleston vs. Moore, 195 111. 221. Chicago City Railway Company : Of the statute chartenng and granting power to the Chicago street railway company. McArdel vs. Chi. City Ey. Co., 141 App. 59. Chicago River: That the Chicago River at Erie Street is within the municipal domain of Chicago. City of Chicago vs. Kubler, 133 App. 520. Organized Fire Department: Judicial notice will not be taken of existence of organized fire department. Van Inwagen vs. City of Chicago, 61 111. 31. Boundaries : A city court may take judicial notice of the boundaries of cities and towns. Gunning vs. People, 189 111. 165; Foster vs. E. St. L. E. E. Co., 158 App. 478. Streets : Judicial notice will be taken of the territorial distances, in a municipality within the jurisdiction of the court. Chrystal vs. Level, 144 App. 533. JUDICIAL NOTICE U5 But not that certain streets were in a certain city. Gunning vs. People, 189 111. 165; Dougherty vs. People, 118 111. 160.; Foster vs. E. St. L. & S. Ey. Co., 158 App. 478. Nor of the municipal location of streets. People vs. Wilkerson, 162 App. 76; Cf. Foster vs. E. St. L. & S. Ey. Co., 158 App. 478. Nor will courts notice judicially the point of intersection of a given street and a railroad track, or relative localities. Penn. Co. vs. Frana, 13 App. 91. The court cannot take judicial notice of the distances between one street and another in the city in which the court sits, nor of the length of a street, whether one or more miles or a fraction of a mile. North Chi, St. Ey. Co. vs. Cheetham, 58 App. 318. Pavement : The court will take judicial notice that there are holes in wooden block pavements near to street car tracks. Chi. U. Traction Co. vs. Case, 129 App. 451. Lot in Certain Town : But not of plats of subdivisions of urban lands or of the sub- divisions themselves, with reference to c^uestions of the location of different lots and blocks. Gunning vs. Peoj)lo, 189 111. 165. LANDS AND SURVEYS. Description : — Abbreviations: The court will take judicial notice of abbrevi- ations used in describing lands. Hull vs. Croft, 132 App. 509. And of the meaning of initial letters in conveyances, levies of execution, surveys, etc., used in the description of land. Kyle vs. Town of Yellowhead, 80 111. 208 ; Paris vs. Lewis, 85 111. 597. — Existence of Town: And where in description of land a particular township is named without indicating whether north or south, that there is no to-vraship of that number south, in the county wherein the land described is lying. Kyle vs. Town of Yellowhead, 80 111'. 208. — Section Lines: The court will also notice that the south line of certain section and the south line of the township are one and the same line. Kyle vs. Town of Yellowhead, 80 111. 208. — Ambiguity in Will: Where description of land devised in a will is apparently unambiguous, but the township, county, range, and state are not specified, the court will take judicial notice, from its knowledge of governmental surveys, that the apparently unam- biguous description is in fact uncertain, and may permit defects to be supplied by extrinsic evidence. Graves vs. Eose, 246 111. 76. Grants : Courts will take judicial notice of the fact that the United States was the proprietor of land granted by it to the state of Illi- nois, and that such grant was made, and of the location of such land. Smith vs. Stevens, 82 111. 554. 746 JUDICIAL NOTICE And also of land granted for canal purposes, when same is sub- ject of litigation in ejectment, and plaintiff need not trace title further back than the state. C. & A. E. R. Co. vs. Keegan, 185 111. 70. And also that section 16 in each township was granted for school purposes; and that in fractional townships for which no land was appropriated, certain quantities of land, to be selected by the Secretary of State, were granted to the state. Black vs. C. B. & Q. R. E. Co., 237 111. 500. Location : Courts will judicially notice that city property is, as a rule, subdivided into lots and blocks. Sever vs. Lyon, 170 111. 395. But not where each block or lot is located. Gunning vs. People, 189 111. 165. Nor whether land located under script is in a lake which is navigable water, and hence not subject to location. Wilcox vs. Jackson, 109 111. 261. Exemption : Where a person entitled to a homestead' exemption is the owner of more than one lot, court will take judicial notice of subdivision of property into separate lots and blocks, for purpose of deter- mining what land is covered by the exemption. Sever vs. Lyon, 170 111. 395 ; Gardner vs. Eberhardt, 82 111. 316. Survey: — Congressional: "Where the proof in ejectment locates the land in suit with reference to congressional surveys, court will take notice in what county the land lies. Dickinson vs. Hendryx, 88 111. 66. — System of Survey: Court will take judicial notice of the acts of Congress in regard to disposal of public lands, and of kind of evidence furnished to a purchaser, and of the system of surveys adopted for those lands by Congress. Court also takes notice of division of state into counties. Gooding vs. Morgan, 70 111. 275; Dickinson vs. Breeden, 30 111. 279. Judicial notice will be taken of government system of surveys. Gardner vs. Eberhardt, 82 111. 316. And of making or not making of government survey. White vs. Hermann, 51 111. 243. — Subdivisions: Courts will take notice of the subdivisions of land of such surveys. Gardner vs. Eberhardt, 82 111. 316. And the divisions of sections of land into halves and quarters, with well defined boundaries. Hill vs. Bacon, 43 111. 477; Meacham vs. Sunderlands, 10 App. 123. — Longitude: That by a governmental survey, all land in a certain county in the state lies east or west of a certain principal meridian. O'Brien vs. Kroekinski, 50 App. 456. LEGISLATIVE ACTS AND JOURNALS. Journals : Notwithstanding the journals of the legislature are public records, courts will not take judicial notice of their contents, but they must be introduced in evidence like any other record and JUDICIAL NOTICE 747 public document. When offered, however, they prove their own authenticity. People vs. Braun, 246 111. 428 ; Erf ord vs. City of Peoria, 229 111. 546 ; Grob vs. Cushman, 45 111. 119. One contending that the title of an act was changed after pass- ing both houses, and before signed by the governor, must make proof of such fact, since courts do not take judicial notice of contents of legislative journals, and will presume that law certi- fied to by the secretary of state is in same form as passed by the legislature. Erf ord vs. City of Peoria, 229 111. 546; I. C. K. R. Co. vs. Wren. 43 111. 77. Courts may look to such journals to see whether statutes are so enacted as to have legal existence. Prescott vs. Canal Trustees, 19 111. 324; Larrison vs. P. A. & D. Eailroad Co., 77 111. 11. But supreme court will not, at suggestion of counsel, undertake to search journals of legislature to ascertain whether a certain act was regularly passed. People vs. Braun, 246 111. 428. Public Acts: — In General: Courts will take judicial notice that an act is found in the statutes. People vs. Braun, 246 111. 428. And of all acts of the legislature which are declared to be pub- lic acts, without other proof. People vs. Hill, 163 111. 186; People vs. Peoria, R. E. Co., 116 111. 410; Potwein vs. Johnson, 108 111. 70; E. I. & St. L. R. R. Co. vs. Lynch, 67 111. 149; Klein vs. Reinhardt, 163 App. 257. Will judicially notice, in construing a statute, the mischief in- tended to be remedied by its enactment. Harrison vs. People, 195 111. 466; Lehigh Cement Co. vs. McLean, 149 App. 360. — Order of Enactment: Courts will not take judicial notice of order in which bills are actually passed by the legislature at same session. Cantrell vs. Seaverns, 168 111. 165. — Constitutional Amendment : But may take notice of the history of constitutional amendments. Blake vs. People, 109 111. 504. — Railwaij Regulations: An act requiring railway companies to ring a bell or sound a whistle before passing over a highway with a train, is a public statute, of which the courts will take judicial notice. The rule is different in respect to private statutes. C. & A. R. E. Co. vs. Dillon, 123 111. 570. — Appeal Pending: If a public act, relating to subject mat- ter of a suit, is passed while an appeal is pending, the court will take judicial notice of such act without a formal supplemental plea. Vance vs. Eankin, 194 HI. 625. — Appropriations Existing: Court will take judicial notice that at certain time the General Assembly had exhausted its powers and that there was no money in the State Treasury which could be legally applied to indebtedness. People vs. Stewart, 97 111. 123. 748 JUDICIAL NOTICE FOREIGN COUNTRIES. Political Organization: Courts will take judicial uotice of the organization of the Dominion of Canada — that the Province of Ontario is a part of the Dominion. Calhoun vs. Eosse, 60 App. 309. Usag-es : But not of statutes and usages of foreign countries. Deiii]>ster vs. Stevens, 63 App. 126. FOREIGN LAW. Statutes : Judicial notice will not be taken of statutes of another state. Coates vs. C. E. I. & P. Ev. Co., 239 111. 154; Leatlie vs. Thomas, 218 111. 246; Close vs. Stnyvesant, 132 111. 607; Bonnell vs. Holt, 89 111. 71; Crouch vs. Hall, 15 111. 264; Eeid vs. Northern Lbr. Co., 146 App. 371; XII 111. Notes, 473, § 7. Laws of foreign states are matters of fact which the court can- not judicially notice. Eoyal League vs. Kavanaugh, 233 111. 175; Forsythe vs. Barnes, 131 App. 467; Assets Eealty Co. vs. Heiden, 215 111. 9; Shannon vs. Wolfe, 173 111. 253. And whether as ground of action or defense, must be proven like any other fact. Hakes vs. Bank of Terre Haute, 164 111. 273; Shannon vs. Wolfe, 173 111. 253; Miller vs. Wilson, 146 111. 523; Mason vs. Dousay, 35 111. 424 ; C. & N. W. Ey. Co. vs. Johnson, 27 App. 351. Rule applies to statutes of foreign country. Dean & Son vs. W. B. Coukey Co., 180 App. 162^ — Construction: Courts will take judicial notice of the con- struction of foreign statutes by foreign courts, and for that pur- pose will look to the reports of the decisions of those courts. Morris vs. Wibaux, 159 111. 627; McUeed vs. McDeed, 67 111. 545. The law of a sister state is a question of fact to be proven the same as any other fact, by introduction of evidence, and construc- tion of such law may be proven by printed reports of adjudged cases. Hayward vs. Sincebaugh, 141 App. 395. — Foreign Judgment: In action on judgment rendered in an- other state, judicial notice will be taken of the laws of such state so far as it is necessary to ascertain the faith and credit to be given to the judgment. Hull vs. Webb, 78 App. 617; Newman vs. Greeley State Bank, 92 Apj). 638; Kuowlton vs. KnowUou, 51 App. 71; Koppell vs. Nagy, 37 App. 23; Eay vs. Hulbert, 17 111. 572. Common Law: Courts will take judicial notice of construction of laws of for- eign country by its tribunals, and to become informed of such construction, will receive testimony of witnesses learned in the foreign law. Canale vs. People, 177 111. 219; Hoes vs. VanAlstyne, 20 111. 201. But do not, as a rule, take judicial notice of the laws of an- other state or country, and their statutes or local usages must be averred and proven when relied upon to aid in sustaining the cause of action in this state. Such is not the case, however, with reference to the common law. On a common law question, courts JUDICIAL NOTICE 749 will assume that common law is in force in a sister state unless proof to contraiy is made. Foisytlie vs. Barnes, 228 111. 326; Scholton vs. Barber, 217 111. 148; Ho^ue vs. Steele, 207 111. 340. The unwritten or common law of another state may be proven by the testimony of competent witnesses instructed in its laws. M. & St. L. Ky. Co. vs. Smith, 74 111. 197. Courts will not take judicial notice of statutes of other states changing the common law, but will presume the common law to be in force. Tinkler vs. Cox, 68 111. 119, COURTS AND OFFICERS. Courts : — Superior: Courts will take judicial notice that there is but one court in this state entitled the Superior Court. Beardsley vs. Gosling, 86 111. 58. — Criminal Court: That there is no criminal court in certain counties. Petty vs. People, 118 111. 148. — Original Jurisdiction: That a number of courts of original jurisdiction are held in a particular city of the state, and in as many different court rooms. Hierson vs. Graudine, 87 111. 115. — Rules: Appellate court will not take notice of rules of cir- cuit court. Bonney vs. McClelland, 235 111. 259. But may of IMunicipal Court of Chicago. Sixby vs. Clii." City Ey. Co., 178 App. 218; Northern Coal Co. vs. Mueller Bros. 171 App. 342. One court cannot take judicial notice of the rules of an- other. Gudgeon vs. Casey, 62 App. 599; Harrigan vs. Turner, 53 App. 292. Officers : — In General: Courts take notice of own officers and when terms expire. Glos vs. Greiner, 226 111. 546; Dire vs. Last, 51 111. 179. — Attorneys: Licensed to practice in a court, are judicially recognized by it. Ferris vs. Com. Natl. Bank, 158 111. 237; Weber vs. Powers, 114 App. 411; Kuehne vs. Goit, 54 App. 596. — Sheriff: Judicial notice will be taken that the sheriff is the jail keeper of county jail. Feld vs. Loftus, 140 App. 531. — Civil: A court will take notice of the civil officers of the county in which it sits. Dire vs. Flint, 21 111. 80; Thompson vs. Haskell, 21 111. 215; Thielman vs. Berg, 73 111. 293 ; Wakott vs. Gibbs, 97 111. 118 ; City of Eockford vs. Mower, 259 111. 604. And of the official duties of such officers. Lynn vs. People, 170 111. 527. And their official seals. Cox vs. Stern, 170 111. 442. And who are authorized to administer oaths in the county. Dyer vs. Flint, 21 111. 80; Thompson vs. Haskell, 21 111. 215. 750 JUDICIAL NOTICE Upon application for judgment, on special assessment, will notice official character of person to whom warrant was directed for col- lection. Brackett vs. People, 115 111. 29. Courts are presumed to know who are the civil officers of the state, and will take judicial notice that one taking an acknowledg- ment as a commissioner of deeds was, at that time, such officer. Fisk vs. Hopping, 169 111. 105. — Judges: Court will take judicial notice as to who are county judges. Village of Hinsdale vs. Shannon, 182 111. 312; Strieher vs. Kubusky, 35 App. 159. That the acting judge who tried the question of benefits in spe- cial assessment in place of regular judge was county judge of an- other county of the state at that time. Fisher vs. City of Chicago, 213 111. 268. Of personnel of circuit judges, circuits presided over and law authorizing interchanging. Eeitz vs. People, 77 111. 518. And upon application for mandamus against a judge, that he has resigned pending application. People vs. MeConnell. 155 111. 192. The court will also take judicial notice of who are the judges of the various courts of record in the state, and what are their terms of office. Vahle vs. Braekenseik, 145 111. 231 ; Village of Hinsdale vs. Shannon, 182 111. 312. When the term of office of one judge expires and that of an- other, his successor, begins. Vahle vs. Braekenseik, 145 111. 231. Appellate court takes notice of the persons who are judges of the circuit court. Russell vs. Sargent, 7 App. 98. — Master in Chancery: Court of chancery will take judicial notice of expiration of master's term of office and appointment of successor. Glos vs. Greiner, 226 111. 546. — Clerh: Circuit courts will take notice of its own officers, as for instance, the clerk. So where 3urat attached to affidavit of non-residence was signed in the name of one person, by another as deputy, without any designation of official character of prin- cipal or deputy, the court will take judicial notice that the per- son whose name was signed to the jurat was clerk of that court. Dyer vs. Last, 51 111. 179. The court will take judicial notice of the official capacity of the signer of an ofiicial document, even though such official capacity is not indicated by the writing. People vs. Paulson, 146 App. 534. Courts of Illinois will take judicial notice that the law author- izes the appointment of a deputy clerk for the circuit court of the United States. Sullivan vs. Ahlgren, 157 App. 123. JUDICIAL NOTICE 751 — Grand Jury: Judicial notice will not be taken of voluntary report of grand jury. Chi. W. & V. Coal Co. vs. People, 214 111. 421. — Justice of Peace: As to who are justices of the peace in a county is a matter of which the court will take judicial notice un- less that is a question particularly in issue. Gilbert vs. Natl. Cash Eeg. Co., 176 111. 288; Grimm vs. Anderson, 42 111. 514; McFarland vs. People, 13 111. 9; Irving vs. Brownell, 11 111. 403; XII. Notes, 472, § 2. But not that a person is a justice of the peace or a sheriff un- less he assumes to act as such, when a presumption is raised that he is the officer he pretends to be. Weber vs. Mick, 131 111. 520; Chambers vs. People, 5 111. 351. Nor that, by the laws of another state, a justice of the peace has authority to take acknowledgments to deeds. Buckmaster vs. Job, 15 III. 328. Nor will circuit court of one county take judicial notice of the official character of justice of peace of other counties. Weber vs. Mick, 131 111. 520. — Notary Piihlic: Courts will take judicial notice of notaries public within own county. Cox vs. Stern, 170 111. 442; Schaefer vs. Kienzel, 123 111. 430. Where acknowledgments are taken by notary public using a seal, proof of official character and authority is not required. Eamsey vs. People, 197 111. 594; Harding vs. Curtis, 45 111. 252. The official seal and jvrat of a foreign notary are not prima facie evidence of his authority to administer oaths, if jurat con- tains nothing as to such authority. Desnoyers Shoe Co. vs. Natl. Bank, 188 111. 312; Trevor vs. Colgate, 181 111. 129; Ferris vs. Com. Natl. Bank, 158 111. 237. County court will take judicial notice that a notary before whom a certificate of publication of delinquent list is sworn to is a notary of the county, no venue being stated in the jurat. Hertig vs. People, 159 111. 237. — Signatures: In some cases courts will take notice of the sig- natures of the civil officers in the county in which it sits. Dire vs. Flint, 21 111. 80. The signature of a public officer in official capacity will be officially noticed, though such official capacity not indicated by the writing. People vs. Paulson, 146 App. 534. Proof of execution of official instruments is not always neces- sary. As a general rule, courts take judicial notice of the pub- lic 'officers, and in some cases of their signatures, within their respecive jurisdictions, and when the trial court in such cases acts upon such judicial notice, this court will presume, in absence of evidence to contrary, that it acted properly. Walcott vs. Gibbs, 97 111. 118. Records : Courts will take notice of their o-wn records. Waterbury Natl. Bank vs. Eeed, 231 111. 246; Bank of Eau CTaire vs. Eeed, 232 111. 238; Taylor vs. Adams, 115 111. 570; XII 111. Notes, 473, § 4. And this though one cause is in equitj'' and the other at law. Taylor vs. Adams, 115 111. 570. 752 JUDICIAL NOTICE So a court will take judicial notice of a bond on file in the court in which action was being prosecuted. People vs. Ackennan, 146 App. 'M)l. In consideration of a petition which refers to a former order of the court, recites the steps taken to carry it into effect, and prays for a further step in its enforcement, it will be presumed, on appeal, that the court took notice of its own records, in regard to what had previously been done, and that such records were be- fore the court at the hearing. Bailey vs. Kerr, ISO 111. 412; Eobinson vs. Brown, 82 111. 279. The court will not go outside the record in a case and refer to the record or its memory of a former litigation to the prejudice of the parties. Magloiighlin vs. Clark, 35 App. 251. A petition on file for removal of a cause to Federal Court may be judicially noticed. McNulty vs. Lockeriflge, 32 App. 86. Court will take judicial notice of its own records to ascertain whether error assigned was assigned on a former appeal. Jackson vs. Glos, 240 111. 3S8. And upon motion to strike from the files a certificate of evi- dence, that it was never presented or filed. Sochrist vs. Petty, 109 111. 188. Courts will take judicial notice of the various steps which have been taken in a cause. Bailey vs. Kerr, 180 111. 412. Judicial notice will be taken of matters constituting a part of the record in a cause. Pavlisek vs. Roessler, 121 App. 219. And of the records in a particular cause on trial, but not of a judgment in another cause or of an execution and its return, until produced. Bank of Montreal vs. Taylor, 86 App. 388. Judicial notice is taken by Appellate Court of condition of record filed in that court in former appeal. World's Col. Exp. vs. Lehigh, 94 App. 433. Orders and Actions: Court will take notice of its own orders and actions. Ferriman vs. People, 128 App. 230. And of its own official acts in the progress of a cause. Dines vs. People, 39 App. 505. But it is only of such acts as properly may go upon the record ; such acts only as can be recorded as official. Tne court cannot thus take notice that a certain person was present when a par- ticular order was made and so must have known its conditions, such knowledge being personal and not judicial. Dines vs. People, 39 App. 565. And cannot judicially notice orders where party to be bound is not party to record. Sachs vs. Sachs, 181 App. 342. The court cannot take notice that parties to a certain proceed- ing have been divorced, although itself the court that pronounced the decree. Streator vs. Streator, 43 111. 155. JUDICIAL NOTICE 753 The regular terms of the circuit court are fixed by law, and judicial notice may be taken thereof to ascertain whether an act was done in term or vacation. Buckles vs. Northern Bank. 08 111. 208. Appellate Court will take .judicial notice of jurisdictional de- fects in transcript from municipal court. Hasselgren vs. Esser, 152 App. 7. The municipal court, as custodian of the records of justice of peace, will take judicial notice thereof. Joerg vs. A. T. & S. F. Ry. Co., 152 App. 229. Counties Composing- Judicial District : Judicial notice will be taken. Moutrav vs. People, 162 111. 194. MISCELLANEOUS. Abbreviations : Court will not take judicial notice of meaning of C. 0. D. A. M. IT. Express Co. vs. Wolfe, 79 111. 4.".0. Nor of "f. 0. b.," but parol may be permitted to explain mean- ing. Con. Coal Co. vs. Schneider, 163 111. 393. But may of "pt. " for part, etc., in judicial proceedings for sale of real estate for taxes. Blakely vs. Bestor, 13 111. 709. Also "c," "ct." or ^'cts." for cents, ''m." for mills, "tx." for tax, "vl." for valuation, and ''$" for dollars. Jackson vs. Cunnnings, 15 111. 449. And "W. side" as meaning west side of a piece of land. Taylor vs. Wright, 121 111. 455. So "pt. S. E. 1/4 S. of T. P. & W. R. R." has been held to mean ''all that part of the South east Quarter lying south of the To- ledo, Peoria and Western Railroad." Sholl Bros. vs. People, 194 111. 24. And of meaning of "Sec." and numbers in real estate con- yeyances. McChesney vs. City of Chicago, 173 111. 75; Kile vs. Town of Yel- lowhead, 80 111. 208; Paris vs. Lewis, 85 111. 597. And in fee bill, abbreviations as "app.," "atty.," "fil.," "doc," "ret," "sat.," "tind." Myers vs. Shoneman, 90 111. 80. "Int. a. 6% p. a." has been held to mean "interest at 6 per cent per annum." Belford vs. Beatty, 145 111. 414. Judicial notice has been taken that "ads." meant "ad sect am" or "at the suit of." Bowen vs. Wilcox, 86 111. 11. That "N. P." are characters in common use and mean "No- tary Public." Eowley vs. Berrian, 12 111. 198. That "J. P." is an abbreviation for "Justice of the Peace." Shattuck vs. People, 5 111. 478. That "b. of e." in connection in which used, meant "bill of exceptions." Metzger vs. Motley, 197 111. 208. Ev.— 4 8 754 JUDICIAL NOTICE But not as to meaning of abbreviations in entry of alleged judgment. stein vs. Myers, 253 111. 199; City of Chicago vs. Mitchell, 256 111. 236. Accidents : Evidence is not necessary to prove that the breaking of harness or vehicles is an accident liable to occur, it being a matter of common knowledge. City of Joliet vs. Shufeldt, 144 lU. 403. Animals : Court has taken judicial notice of frightening of cattle by sight and sound of train. St. L. V. & T. H. Ey. Co. vs. Hurst, 25 App. 181. But has declined to judicially notice management of horses, refractory or otherwise. Chi. St. Ry. Co. vs. Smith, 54 App. 415. Apartment Houses: A building of several stories, and called "flats," occupied by several tenants, having a passenger elevator, a janitor, an engi- neer and an elevator boy may be assumed to be an apartment house. Fisher vs. Janseu, 30 App. 91. Brokers : There is no statute requiring a license of real estate brokers, and courts can only take notice that there is an ordinance re- quiring such license, by pleading or proof of such fact. Munsen vs. Fenno, 87 App. 655. Business Usages: — Banks: The court will take judicial notice of some com- mon customs, while others must be proven as matters of fact. Where a custom is so universal and of such antiquity that all men must be presumed to know it, courts will take judicial notice of it. Of such is the custom of bankers in allowing depositors to check out their funds in parcels. Munn vs. Birch, 25 111. 35. And that banks close before a certain hour in the afternoon. Barton vs. People, 35 App. 573. But not of the time stores and offices close in small village. Markey vs. Griffin, 109 App. 212. — Travelling Salesmen : The court will take notice of the gen- eral course of business, that when one is employed as a travelling salesman, some provision is made as to travelling expenses. Berriman vs. Marvin, 59 App. 440. . — Market Priee: That wholesale price is less than retail. Wenrlnagel vs. Houston, 155 App. 664. That in purchase of grain, the last available quotation gov- erns. Nash vs. Classen, 163 111. 409. Calendar : Courts take judicial notice of the calendar and of the course of heavenly bodies. Fuller vs. P. & P. TJ. Ey. Co., 164 App. 385. And of the day of week on which particular date fell. Hines Lbr. Co. vs. Eeam, 64 App. 608. JUDICIAL NOTICE 755 Cement : Courts will take judicial notice of the chemical and mechanical construction of cement. City of Chicago vs. Gage, 237 111. 328. Census : Of the Federal Census, in determining a question involving the number of inhabitants in cities within their jurisdiction. C. & A. Ey. Co. vs. Baldiidge, 177 111. 1^29. And of the counties of the state. People vs. I. C. R. E. Co., 237 111. 324; Worchester Bank vs. Cheney, 9-4 111. 430. Chicago City Directory: Appellate court will take judicial notice that Chicago city direc- tory is never published before IMay each year. Brown vs. Follett, 88 App. 489. Church Societies: Court will take judicial notice that there are church societies in existence that are unincorporated. Alden vs. St. Peter's Parish, 158 111. 631. But not of the existence or non-existence of local religious so- cieties — such facts, in order to be entitled to consideration, must be proven. St. Paul's Parish vs. E. St. Louis, 245 111. 470. It is a matter of common knowledge that most all religious denominations maintain missions or missionary societies for the advancement of the cause of religion. Hitchcock vs. Bd. of Home Missions, 259 111. 288. Cigarettes : Court will take notice that cigarettes are made of tobacco rolled with small pieces of tissue paper. Kappes vs. City of Chicago, 119 App. 436. Common Carrier: The court will take notice that the owner of an omnibus line is a common carrier of passengers and their baggage. Parnielee vs. McNulty, 19 111. 556. Common Knowledge: Judicial notice will be taken of matters of common knowledge. Pierce vs. Coryn, 139 App. 445. Courts will take notice of whatever ought to be generally known within the limits of their jurisdiction. Stein vs. Myers, 253 111. 199. And take judicial notice, as judges, of what is known as men. Richie vs. Waynian, 244 111. 509. Concrete : Of meaning of term ''concrete" as used with reference to im- provements. Gage vs. City of Chicago, 201 111. 93. Corporations : — Puhlic: Judicial notice will be taken of incorporation by public statute. Spaulding vs. People, 172 111. 40. — Private: A court cannot take judicial notice that a private corporation has a seal. I. C. E. E. Co. vs. Johnson, 40 111. 36. 756 JUDICIAL NOTICE Where charter of a private eoi-poration is declared to be a public act, the court will take judicial notice of its provisions. P. D. & E. Ry. Co. vs. People, 116 111. 401. — Foreign : Judicial notice will not be taken as to state in which party to suit was incorporated. Leigh vs. N. H. B. Co., 131 App. 106. Court will take judicial notice that prior to 1897 many cor- porations were organized outside the state, with intent of doing business in this state, thus depriving the state of its fees and power to control them. Lehigh Cement Co. vs. McLean, 149 App. 360. Crops : Court will not take notice of the time when particular crops mature, as they do not mature at the same time in all places, nor at the same time at the same places in different seasons. Dickison vs. Nichols, 39 111. 372. Court will take judicial notice that the rental value of land which is cropped does not accrue until its crops mature, and that the time of maturity is later than June. Dunbar vs. Dunbar, 168 App. 142. Customs : — Old mid General: Where a custom is so old and general that all men are presumed to know it, courts will notice it judicially. Munn vs. Birch, 25 111. 3.5. — Purchase of Grain: The court will take notice of the usual and customary manner in which general commercial business is carried on, and that in the purchase of grain or other commodity, the purchaser, as a rule, is governed by the last available quota- tion. Nash vs. Classem, 163 111. 409. Drainage : May take notice of such inferences or presumptions raised from facts proved or admitted, as are warranted by uniform experience. Hicks vs. Silliman, 93 111. 255. May notice consequences known to result from the laws that govern matter. It may thus notice that surface water, collected by ditches and embankments on the land of one person, and de- posited upon the lower land of another, will flow upon the sur- rounding heritage in undue and unnatural quantities. And where it appears that the land upon which the water is thus thrown is already so wet as to be barely fit for cultivation, and is without drainage, court will notice that the land will be thereby injured. Hicks vs. Silliman, 93 111. 255. Dynamite : That explosions of dynamite are dangerous. Chicago vs. Murdock, 212 111. 9; FitzSimmons vs. Braun, 199 111. 390. Exchange : The court cannot take judicial notice of the rate of exchange between certain places. Lowe vs. Bliss, 24 111. 168. JUDICIAL NOTICE 757 Foreign Court: It is the duty of the court to take same notice that the supreme court of another state has jurisdiction of subject matter and of the regularity of its proceedings, that it would take- of a domestic judgment. Bay vs. Hubert, 17 111. 572. Former Testimony: Judicial notice may be taken by court of testimony given by witness on former trial, whose absence is made basis for motion for continuance. Stringam vs. Parker, 159 111, 304. Gaming- : A building or yard used for purpose of book-making or pool- selling is used for purpose of gaming, and court will take judicial notice of that fact. Swiffart vs. People, 50 App. 181. Geographical Facts: — In General: Courts will take judicial notice of the geo- graphical features of Illinois, and other states, so far as the same may be fairly presumed to be within the general knowledge of persons of ordinary intelligence living in Illinois. Sublette Bank vs. FitzGerald, 168 App. 240. — Division of State into Counties: Court will take notice of the division of state into counties. Gooding vs. Morgan, 70 111. 275 ; Harding vs. Strong, 42 111. 148. And that a particular town is in a certain county. People vs. Suppiger, 103 111. 434. That a particular city of the state is in a certain county. Sullivan vs. People, 122 111. 385. — Residence of Litigants: Court will take judicial notice of the geography of the country and of the distance of the residence of a party to place of holding court, Brusou vs. Clark, 151 111. 495. "Where notice is given the day before the trial to produce a paper which is eighty miles distant, in the control of anotlier per- son, court will not take judicial notice that the paper could not have been obtained and so exclude secondary evidence. Cody vs. Hough, 20 111. 43. Geological Formations: That the veins of coal in its jurisdiction are immediately over- laid with a stratum of slaty rock. Con. Coal Co. vs. Seheller, 42 App. 619. Government Regulations : Courts will take judicial notice of government regulations. Wabash E. E. Co. vs. Campbell, 219 111. 312. History : — Boer War: Judicial notice will be taken of the years dur- ing which the Boer war progressed. Dowie vs. Sutton, 227 111. 193. — World's Fair: That "World's Columbian Exposition," was held in Chicago, need not be proven, since that fact is historical and of such notoriety that the court will take judicial notice of it. McCoy vs. Columbian Exposition, 186 111. 356. 758 JUDICIAL NOTICE Horse Racing: The court will take notice judicially that horse-racing is an exhibition, a performance and an entertainment. Weber vs. City of Chicago, 50 App. HO. Injury and Pain: No proof is necessary that the loss of an arm will interfere with ordinary business and cause pain. Fisher vs. Jansen, 128 111. 549: Chi. City Ey. Co. vs. Warner, 108 111. 538. Court will take judicial notice that pain and suffering follow serious surgical operation. Pratt vs. Davis, 224 111. 300. Laboring Class: Court will take judical notice that employees in mines and fac- tories compose but part of laboring class. Frorer vs. People, 141 111. 171. Law Merchant: The law merchant is a part of the common law and as such it will be judicially noticed by the courts. Cook vs. Eenuick, 19 111. 598. Life Tables: Courts take judicial notice of standard life tables. Marshall vs. Marshall, 252 111. 568 ; Wain vs. C. C. C. & St. L. Ey. Co., 239 111. 132; Henderson vs. Harness, 184 111. 520. Market Value: It is a matter of common knowledge of which court must neces- sarily notice that there is probably no article of merchandise bought and sold in the market in both large and small quantities but that the price is less when purchased in larger quantities. _ The line of demarcation, however, between the lesser and higher prices, is not a matter of common knowledge. Weudnagel vs. Houston, 155 App. 664. Names : The court cannot judicially notice the equivalents of names of persons in another language. Becker vs. German Fire Ins. Co., 68 111. 412. It cannot, for instance, know that Wilhelm is the German equivalent for AA^illiam. Becker vs. German Fire Ins. Co., 68 111. 412. Nor that Bart, is a contraction for Bartholomew. Rives vs. Mars, 25 111. 33 5. May take notice of the ordinaiy abbreviations of Christian names, as Jos. as a common abbreviation for Joseph. Feia vs. Loftns, 240 111. 3 0.5. But not of sex from use of initials. People vs. Martin, 180 App. 578. Nuisance : The courts will take notice that residence property is rendered less valuable by the erection of coal sheds in the neighborhood, filling the air with dust and smoke, disturbing the quiet with the noise of machinery, ears, steam whistles, and the like, and increas- ing the risk of fire by the accumulation of large quantities of combustible substances. Wylie vs. Elwood, 34 App. 244. JUDICIAL NOTICE 759 Odors and Smells: The court will take judicial notice of the laws of nature, as that odors dift'use themselves in the cireuuiarnbient atmosphere. Fairbanks vs. Nicholai, 66 App. 637, Quarantine Law: And of requirements of Federal quarantine law. Wabash E. K. Co. vs. Campbell, 117 App. 630. Physics : Judicial notice taken of matters of science such as the laws of gravitation, h,ydraulics and mechanics. Hicks vs. Silliman, 93 111. 255. Post Offices: — licguhition: The court will take notice of general postal regulations. Buehler vs. Gait, 35 App. 225. — /;; Certain Places: But not that a post office is or is not established in a particular place. Malaer vs. Damron, 31 App. 572. — Mail Transportation:' The court will take judicial notice of ordinary course of post and time in which a letter mailed will reach destination. Katl. Ace. Assu. vs. Seed, 95 App. 43. Race Prejudice: Will not take judicial notice that there is an existing prejudice against the Hebrew race. Hoxie vs. Pfalzer, 167 App. 79. Railroads : — Existence : The existence of a railroad is not a fact of which courts take judicial notice, but when such fact is brought in issue, it must be averred and proven. Goodman vs. People, 228 111. 154; Cf. Sublette Bank vs. FitzGerald, 168 App. 240. — Fencing: Court will not take judicial notice that railroads are fenced as built. C. & M. Elec. Co. vs. Diver, 213 111. 26. — Route: Nor of the route of a railroad. L. P. & B. Ey. Co. vs. Cald^vell, 38 111. 280. — Transportation of Grain: Courts will take judicial notice that railroad method of transportation of grain is in cars. A. T. & S. F. Ey. Co. vs. People, 128 App. 38. And that grain coming to Chicago by any railroad may be readily switched by means of belt roads to any warehouse in any part of the city. People vs. I. C. E. E. Co., 233 111. 378. — Management and Conduct: And the manner in which ordi- nary railroad business is conducted, and that a "clearance" as the term is commonly used by railroad men is a letter given to an em- ploye on quitting the service of the company, showing voluntary quittance, or the cause of discharge, his length of service, capacity, etc., and that it is not necessarily a letter of recommendation. McDonald vs. I. C. E. E. Co., 187 111. 529; P. Ft. W. & C. Ey. Co. vs. Callaghan, 50 App. 676. Courts will take judicial notice of the way in which ordinary 760 JUDICIAL NOTICE railroad business is conducted, and of the every-day practical operation of the road. C. C. C. & St. L. Ey. Co. vs. Jenkins, 174 111. 398. That freight cars belonging to different companies are inter- changeably used on the principal railroads in the United States. State vs. I. C. E. E. Co, 246 111. 188. And a more or less of an oscillating, jerking motion is inci- dent to the running of trains. C. B. & Q. Ey. Co. vs. Hazard, 26 111. 37.3. And of necessity for fast trains on through lines. C. & N. W. Ey. Co. vs. Weeks, 99 App. .518. — Ownership: Of the initials of the operating railroad com- panies. Eyan vs. B. & O. Ey. Co., 60 App. 612. — Trespassers: Judicial notice not taken that a brakeman has authority to eject a trespasser. I. C. E. E. Co. vs. King, 179 111. 91. — Freight Bates: Judicial notice not taken of official classi- fication of freight rates made under the Interstate Commerce Act. Warren vs. C. C. C. & St. L. Ey. Co., 156 App. 111. Seal of State: Judicial notice will be taken of seal of state. C. & A. Ey. Co. vs. Keegan, 152 111. 413. Seasons : Courts take judicial notice that in certain seasons of the year, and in certain localities there is a heavy rainfall and a liability to freshets. Elzer vs. Gross Point, 223 Til. 241; Contra, Dixon vs. Nicholl, 39 111. 372. That 5 o'clock, July 23 is about two hours before sunset. Falkinau Cons. Co. vs. Gihley, 131 App. 399. And of the absence of daylight at a given time of day in a particular month. Lacon vs. So. Side El. Ey. Co., 148 App. 268. That the sun sets later at a point west than one further east, is a fact of which the court may take judicial notice. People vs. Town of Bishop, 11 111. 124. The court will take judicial notice of the seasons and that in winter the days are comparatively short. Pritchart vs. Walker, 22 App. 286; C, B, & Q. Ey. Co. vs. Kennedy, 22 App. 308. Soil Conditions: Judicial notice will be taken of soil conditions within terri- torial jurisdicton. City of Chicago vs. Duffy, 117 App. 261. Streams : — Navigable : A court of equity will take judicial notice of a navigable river and its tributaries and feeders, and of the fact, notwithstanding such river is the natural outlet for drainage from surrounding territory, and receives large quantities of sediment and debris from its tributaries, its navigability is not necessarily destroyed thereby. Canal Comrs. vs. E. Peoria, 179 111. 214; Cf. People vs. Board of Supervisors, 122 App. 40. JUDICIAL NOTICE 761 That the Chicago River is situated in the midst of the city where a dense popidalion exists, and near which much of the business of the city is transacted. Harmon vs. City of Chicago, 110 111. 400. That the north branch of the Chicago River, across which ex- tends the bridge at or near Kinzie Street, is a navigable stream. Wice vs. C. & N. W. Ey. Co., 93 App. 266. — Flotv and Effect: That a particuLar creek, in its natural channels, flows into a particular river in the state at a particular place. Canal Conirs. vs. E. Peoria, 75 App. 450. And that there it empties its waters and the waters of its tributaries, with all the accompanying sand and other alluvial matters. Canal Comrs. vs. E. Peoria, 75 App. 450. And that the deposit there of all such matter, as in the natural course of facts, never totally prevents navigation. Canal Comrs. vs. E. Peoria, 75 App. 450. Sunday : Courts cannot take judicial notice that Sunday is specially ob- served in another state. Zipp vs. Uhlaud Ilaiu, 30 App. 280. Telegraph Message: Judicial notice will be taken that telegraph messages are writ- ten. People vs. West. Union Tel. Co., 166 111. 15. Value : The court will take judicial notice that property consisting of real estate and chattels has a value. Seliroeder vs. Traders' Ins. Co., 109 111. 157. Of general rise in the value of farm lands in the state. Zinzer vs. San. Dist., 175 App. 9. Weapon : Notice will be taken that a pistol or a hoe, used for the purpose of assault, is a deadly w'eapon. Hamilton vs. People, 113 111. 34. Whiskey : Courts will take judicial notice that whiskey is both spirituous and intoxicating. IlitcdicoL-k vs. Village of Princeville, 84 App. 59. JUDICIAL NOTICE DEFINED. The duty or power of the court to accept, for the purposes of the trial, the truth of certain well known facts, without requiring proof. That judicial knowledge of a fact as a rule of evidence which dis- penses with the necessity of offering proof as to such fact. Citv of Chicago vs'. Williams, 254 111. 360. NECESSITY OF PROOF. Facts of which the courts take judicial notice need not be proved. The court of its own motion will advise itself, so as to verify matters of which it is required to take judicial notice. Vahle vs. Brackenseik, 145 111. 231 ; Seehrist vs. Petty, 109 111. 188. 762 JURORS JURORS See New Trial, Former AdjudiCx\.tion, Former Testimony, Grand Jurors, GrxUs^d Jury. JUSTICES OF PEACE Judicial Notice: Courts will not take judicial notice of who are justices of the peace beyond the county where court is held. Michaels vs. People, 208 111. 603 ; Weber vs. Mick, 131 111. 520. But will take notice of who are justices of the peace in the county, unless that question is particularly in issue. Gilbert vs. Natl. Cash Eegister Co., 176 111. 288 ; Grimm vs. Anderson, 42 111. 514; McFarland vs. People, 13 111. 9; Irving vs. Brownell, 11 111. 4n.T; XIT 111. Notes, 472, § 2. Admissibility of Record: — Original Docket: The docket of a justice of the peace being a book provided to be kept by law, is competent evidence to es- tablish facts properly recited therein pursuant to law, and the entries therein made in the course of a suit before such justice constitute a record which cannot be contradicted by parol. Downey vs. People, 117 App. 591. The statute which declares that copies of proceedings and judgments before justices of the peace, certified to by them, shall be received as evidence of such proceedings or judgments, em- braces as well proceedings and judgments before police magis- trates, and while the statute declares copies to be evidence, the original docket, duly proven to be such, is also competent evi- dence. Willoughby vs. Dewey, 54 111. 266; Comstock vs. Gage, 91 111. 328; Payne vs. Taylor, 34 App. 491. A plea of mil tiel record is technically inappropriate to ques- tion the existence of a justice court record. Feld vs. Loftus, 140 App. 530. — Jurisdiction: Jurisdiction of person need not be first shown. Willoughby vs. Dewey, 54 111. 266 ; Payne vs. Taylor, 34 App. 491 ; Cf. People vs. Koehler, 146 App. 541. But jurisdiction of subject matter must be first shown to ren- der competent docket of justice of the peace of foreign state. Trader vs. McKee, 2 111. 558 ; Cavanaiigh vs. Morris, 160 App. 55. Where a docket shows that the justice has jurisdiction of the person and subject matter, nothing Avill be intended to be out of his jurisdiction which does not affirmatively appear so. Thatcher vs. Maaek, 7 App. 635. — Parol: Parol evidence is not competent to show defendant was not served with summons in original action before justice of the peace. Payne vs. Taylor. 34 App. 491 ; Garfield vs. Douglas, 22 111. 100. But same may be shown by the original summons. Pardon vs. Dwire, 23 111. 572. Parol is incompetent to show alteration or correction of record of justice of the peace. Saterlee vs. Hickman, 38 App. 139; Thatcher vs. Maack, 7 App. 635. It is not competent to show by parol proof that a justice of the KIDNAPPING 763 peace intended to enter a different judgment than the one he recorded in his docket. Zimmermann vs. Zimmermann, 15 111. 85 ; Birma vs. Muir, 152 App. 505. — Competency of Justice: A justice of the peace is competent witness to prove his docket and explain entries upon it, as also to identify causes and parties. Haven vs. Green, 26 111. 252; People vs. Ham, 73 App. 533; Greenberg vs. People, 125 App. 626. — Notes of Magistrate: The notes of a magistrate, taken on the hearing of a criminal charge, and never read to nor signed by the party, are not depositions and are not evidence to impeach or contradict such party. Schoonover vs. Myers, 28 111. 308. — Transcript: A recital in the transcript of a replevin suit before a justice, that an affidavit for the writ was filed is evidence that an affidavit of some sort was filed, and though such recital is not sufficient of itself to show that the justice had jurisdiction to issue the writ, the transcript is admissible to show an affidavit was filed, which the justice held to be sufficient, Feld vs. Loftus, 240 111. 105. On appeal from a justice, in a proceeding against a garnishee, the transcript of proceedings before the justice is not competent evidence to show an indebtedness from garnishee. C. & St. L. Co. vs. Killenberg, 92 111. 142. A seal is not essential to a valid transcript of a justice of the peace. Feld vs. Loftus, 140 App. 530; Foster vs. People, 121 App. 165. A transcript of a justice of the peace which is not under seal is competent where such justice appears and testifies that the same was a transcript of his docket and bears his signature, Greenberg vs. People, 125 App. 626, (See Kecords.) Certified Copy of Record: Eecord of a justice of another county, to which is attached a certificate of justice of the peace, but to which is not attached certificate of county clerk that officer was at that time duly com- missioned justice of the peace, is inadmissible. Gilbert vs. Natl. Cash Eegister Co., 176 111. 288; Crossett vs, Owens, 110 111. 378. Weig-ht and Sufficiency of Record : An entry of payment of a judgment, made by a justice of the peace who entered such judgment, is conclusive proof of the fact of payment. Downey vs. People, 117 App. 591. KIDNAPPING Weig-ht and Sufficiency: It will be sufficient to show that the mind was operated upon by falsely exciting the fears, by the use of threats or other undue influence amounting substantially to a coercion of the will, as a substitute for violence. Moody vs. People, 20 111. 316. It is not necessary to prove some act done toward obtaining ransom or circumstances tending to prove such act done. People vs. Harrison, 261 111. 517. 764 KNOWLEDGE KNOWLEDGE See Fraud, Fraud and Deceit, Wills, Intent, Separate and Similar Offenses, Custom and Usage, Animals, Receiving Stolen Property, Homicide, Rewards. Presumptions : — In General : A person cannot presume facts against his own knowledge. Collison vs. I. C. R. R. Co., 239 111. 5.32. — Of Law: Every person is presumed to know the general laws of the state in which he resides. Russell vs. Runisey, 35 111. 362 ; Marshall vs. Cook, 38 111. 44. And such presumption is conclusive. Kessler vs. Kedzie, 106 App. 1. — ^YilJs: A testator is presumed to have understood nature and contents of his will. Jones vs. Abbott, 235 111. 220; Todd vs. Todd, 221 111. 410; Conipber vs. Browning, 219 111. 429; Wombacker vs. Barthelme, 194 111. 425. Irrespective of his ability to write. Doran vs. Mullen, 78 111. 342 ; Wombaeher vs. Barthelme, 194 Til. 425. In construing a will, it must be presumed that the testator knew the law. Nangle vs. Mullanny, 113 App. 457. And that he had knowledge of the fact that marriage would invalidate his will. Sloniger vs. Sloniger, 161 111. 270. — Contracts: Law presumes possessor of document has knowl- edge of its contents. Eogan vs. Arnold, 135 App. 281. — Promissory Notes: Presumption that a party signing a note knew its contents before signing is not conclusive. Kingman vs. Reinemer, 166 111. 208. — Customs: Where a general custom exists, the presumption is that parties to a contract had knowledge of it and contracted with reference to it Steidtm'an vs. Lay Co., 234 111. 84; Taylor vs. Bailey, 169 111. 181;. Chisholm vs. Beaman Mach. Co., 160 111. 101 ; Dyer vs. Sutherland, 75 111. 583. Contracts are presumed to be made with knowledge of and refer- ence to an existing custom relating to trade in which they were made, if made in ordinary course of business, without stipulations which exclude such custom. Chisholm vs. Beaman Mach. Co., 160 111. 101; Contra, Corrigan vs. Herrin, 44 App. 363. A party dealing in a particular market is presumed to know all the customs of such market bearing upon the transaction in which he is engaged. Cothran vs. Ellis, 107 111. 413. An alleged particular custom and method in relation to the pre- sentation of drafts, receipt of checks therefor, and retention of same until the following day, contrary to the general custom, being a particular or special custom, in order to be binding, must have been actually known when the draft was sent for collection. Bank of Commerce vs. Miller, 105 App. 224; Strong vs. King, 35 111. 9. (See Custom and Usage.) KNOWLEDGE 765 — Local Terms and Phrases: It will be presumed that partii^s understood their meaning and employed them according to tlieir local significance. Myers vs. Walker, 24 111. 134. — Particideir Trade: One engaged in a particular trade is pre- sumed to know the prevalent customs of that trade. Descliler vs. Beers, 32 111. 368. — Of Carrier: Where a caiTier has an established custom, one who has been in the habit of shipping over the road of such car- rier will be presumed to have knowledge of the custom. I. B. & Q. By. Co. vs. Murray, 72 111. 128. — Servant: Law does not presume that servant has knowledge of dangers or perils not obvious to the senses, and arising solely out of extraordinary or exceptional circumstances. McCulloeh vs.' 111. Steel Co., 243 111. 464. — Memher Benefit Society: Is conclusively presumed to know laws of such societv. Benes vs. Knights of Honor, 231 111. 134. How Shown: — Adverse Possession: Proof that grantor, who had conveyed but remained in possession of the property, and was generally re- puted to be the owner, is competent to show notoriety of possession, knowledge thereof by grantee, and that the possession was under claim of title. Knight vs. Knight, 178 111. 553. — Competeneij of Employe : Evidence of reputation of employe is admissible to show employer had knowledge of character of employe as to competency. Met. El. Ey. Co. vs. Fortin, 203 111. 454; Con. Coal Co. vs. Seniger, 179 111. 370;" Western Stone Co. vs. Whalen, 151 111. 472; C. & A. E. E. Co. vs. Sullivan, 63 111. 293; XIII 111. Notes, 481, §637. And such proof of general reputation is not confined to method in which employe usually performed acts similar to one causing injury. Met. El. Ey. Co. vs. Fortin, 203 111. 4.54. — Dangerous Cliaracter of Machinery: In action to recover damages caused by explosion of certain locomotive engine, testi- mony of employees of company using it, that among them, such engine had always been considered unsafe, is competent, for pur- pose of showing that person having care of the machinery of the road knew or might have known, by reasonable diligence, that it was unsafe. C. & A. Ey. Co. vs. Shannon, 43 111. 338. — Fraud: Similar transactions are competent to show knowl- edge of fraud. Allen vs. Millison, 72 111. 201. — Defect of Animals: On question of negligent handling of blind horse, proof that person had been informed of blindness admissible. Eaney vs. Un. Stock Yards Co., 240 111. 602. — Notice: Manifestation of surprise on learning facts admis- sible where want of notice in issue. Vigus vs. O'Bannon, 118 111. 334. 766 LARCENY Evidence of general understanding and of posters inadmissible to show notice by railroad of crowd on excursion. C. & A. Ey. Co. vs. Fisher, 31 App. 36. LARCENY See Separate and Similar Offenses, Embezzlement, Robbery, Receiving Stolen Property, Intent, Possession. Defined: — In General: It is an essential element that property of owner has been wrongfully taken and carried away, or that person accused of larceny had knowingly aided, abetted, encouraged and advised such wrongful taking before the actual theft of the property, or at the time thereof. Watts vs. People, 204 111. 233 ; Keating vs. People, 160 111. 480, Where, with intent to steal, a person sets in motion any agency, animate or inanimate, with the desigTi of effecting a transfer of the possession of goods of another to him, in order that he may felon- iously convert the same to his own use, and which design is success- fully accomplished, a conviction may be had upon a common law indictment charging a felonious taking and carrying away of the goods. Aldrich vs. People, 224 111. 622. — Accessory After Fact: One indicted for larceny cannot be convicted of being an accessory after the fact. Watts vs. People, 204 111. 233; Eeynolds vs. People, 83 111. 479; Gutchins vs. People, 21 111. 641. — Infamous Crime: Petit larceny is infamous crime. People vs. Russell, 245 111. 268; McLain vs. City of Chicago, 127 App. 481. — Receiving Stolen Property: The offense of receiving or buy- ing stolen property, or aiding in concealing same for gain or to prevent the owner from repossessing himself thereof, with the knowledge that it has been stolen, is made a substantive crime sub- ject to punishment without reference to trial or conviction of the person committing the larceny. Watts vs. People, 204 111. 233 ; Huggins vs. People, 135 111. 243. — Private Stealing: As distinguished from larceny from the person, the gist of robbery is the force or intimidation and the tak- ing from the person, against his will, a thing of value belonging to the person assaulted. The only difference between private stealing from the person of another, and robbery, lies in the force or intim- idation used. Hall vs. People, 171 111. 540; Burke vs. People, 148 111. 70; XIII 111. Notes, 283, § 16. Corpus Delicti : The corpus delicti cannot be established by extra-judicial con- fessions or admissions of accused alone. Johnson vs. People, 197 111. 48; Gore vs. People, 162 111. 259; Williams vs. People, 101 111. 382; May vs. People, 92 111. 343. (See Corpus Delicti.) Character of Taking: — As Involving Trespass: The crime of larceny includes the LARCENY 767 taking and conversion of property without consent of owner. It involves trespass, and there can be no larceny where there is con- sent to taking of the property, with intention that possession and title should pass. Where the owner voluntarily parts with the possession and title, the crime of larceny is not coniniitted. People vs. Hoban, 240 111. 303; Stewart vs. People, 173 111. 4G4; Johnson vs. People, 113 111. 99. — Possession Knowingly Surrendered: Where the owner of goods voluntarily parts with possession of property, but retains title, expecting the goods to be returned to him or disposed of in certain manner, the subsequent felonious conversion of the property will relate back and make the taking and conversion larceny. Aldrich vs. People, 236 111. 622; Bergman vs. People, 177 111. 244; Doss vs. People, 158 111. 660; Phelps vs. People, 55 111. 334; Murphy vs. People, 104 111. 528; Stimson vs. People, 43 111. 397; Farrell vs. People, 16 111. 506. — Frauduknf Legal Process: Larceny may be committed where legal process is fraudulently and feloniously used for purpose of securing possession of goods bv thief. People vs. Frankenberg, 236 111. 408; Luddy vs. People, 219 111. 413. — Similar Offenses: It is, under no circumstances, admissible for prosecution to put in evidence defendant's general bad char- acter, or his tendency to commit the particular offense charged, nor is it admissible to prove independent crimes even though of the same general character, nor his willingness to commit a similar offense at the time. Bishop vs. People, 194 111. 365. — Subsequent Acts: The acts and conduct of defendant with relation to the property subsequent to his taking it, are admissible to show intent. Quinn vs. People, 123 111. 333; Williams vs. People. 101 111. 383. But previous improper relations between prosecuting witness and defendant are inadmissible. People vs. Goodrich, 251 111. 558. — Flight: An attempt to escape, after indictment found, or before, is a circumstance against the prisoner, if unexplained. Evidence is admissible to show that accused gave "straw bail" and forfeited his recognizance and passed under various aliases. Barron vs. People, 73 111. 256; People vs. Warfield, 172 App. 1; Cf. Fox vs. People, 95 111. 71. Identity of Property: — Burden of Proof: The burden is upon prosecution to estab- lish identity of subject of larceny beyond reasonable doubt. Bishop vs. People, 194 111. 365. — Money: The indictment should describe goods with accuracy, and a variance in this particular will be fatal. The prosecution is bound to prove it substantially as laid. Williams vs. People, 101 111. 382. Testimony that the owner of property, described in an indict- ment for larceny as treasury notes, national bank bills, greenbacks and gold and silver coin, had "130" consisting of "two fifties and three tens," is insufficient to identify the money as that charged to have been stolen. Vale vs. People, 161 111. 309. A charge that defendants, "for their own gain, knowingly and 768 LARCENY feloniously received one gold coin of the value of $10, one bill pur- porting to be issued by the Monmouth National Bank, of the value of $10, and one bill, purporting to be issued by some National Bank, of the value of $5, ' ' knowing them to have been stolen, is not sustained by the testimony of a witness that he found on one of the defendants, $10, and on the other $15, and some small change, as it does not show it was of the kind and character of money described in the indictment. Williams vs. People, 101 111. 382. Proof of the theft of a gold certificate, silver certificate and of national bank bills, called by the witness "State Bank notes," is not a variance from an indictment charging the theft of treasury notes, national bank bills and greenbacks. Keating vs. People, IGO 111. 480. Genuineness must be proven ; if forged or counterfeited, and had no intrinsic or artificial value, they would not be subject of larceny. ■-. Collins vs. People, 39 111. 233; Hiklreth vs. People, 32 111. 36. The opinions of a banker are admissible as to genuineness of a bank note. Keating vs. People, 160 111. 480. — Prod}ictwn. of Property: IMay be made before the jury. Miller vs. People, 229 111. 376; Keating vs. People, 160 111. 480. — Substituted Property: A roll of paper with a dollar bill wrapped around it, substituted for a roll of money stolen from the person of its owner, may be exhibited in presence of jury, in con- nection with his evidence that he found such roll in his pocket in place of his money. Keating vs. People, 160 111. 480, Ownership : — Possession in General: The same general evidence of property is admissible and is sufficient in criminal cases as in civil cases. Possession with general acts of o\vnership over the property are sufficient where there is no evidence offered to rebut or contradict the right of property. Barnes vs. People, 18 111. 52; Cf. Brunk vs. Hutmacher, 165 App. 295. — Sufficiency of Evidence to Show Possession: Hogs shown to be of a lot purchased by the person named in the indictment as the owner, individually, with intent that if, upon shipment the venture proved profitable, his partner should share the profits, are, for the purposes of a prosecution for the larceny of such hogs, the individ- ual property of such purchaser, it appearing that such partner had never assented to the purchase or become vested with an interest. Hix vs. People, 157 111. 382. — From Whom Purchased: There is no error in refusing to allow prosecuting witness, on cross examination, to state the names of the firms from whom he purchased goods, as this could throw no light on question of defendant's guilt or innocence. Sahlinger vs. People, 102 111. 241. — Corporate Existence : In absence of countervailing evidence, proof of actual exercise and enjoyment of corporate powers and functions sufficiently supports an allegation that owner of articles alleged to have been stolen, was a corporation organized under the LARCENY 769 laws of the state of Illinois, as proof of user is, by statute, made pnma facie evidence of corporate existence. Waller vs. People, 175 ill. 221 ; Sykes vs. People, 132 111. 32. This applies to corporations of other states doing business in this state. Kinkaid vs. People, 139 111. 213; Kossakowski vs. People, 177 111. 563. But coiiDorate existence must be averred. People vs. Brauder, 244 111. 26. And oral proof as to fact of being a corporation is improper. People vs. Burger, 259 111. 284. — Unincorporated Body: Property vested in a body of persons ought not to be laid as property of that body, unless such body be incorporated, but should be described as belonging to individuals composing the company. Wallace vs. People, 63 111. 451. — Name : Where names in ordinary enunciation are not dis- tinguishable, the doctrine of id en so nans will apply. Barnes vs. People, 18 111. 52. Or that the owner was as well known by a certain name, may be sufficient. Hix vs. People, 157 111. 382. — When Owner Never in Possession: Larceny at common law does not lie where the prosecuting witness never had possession of converted articles. MeElroy vs. People, 202 111. 473; Qiiinn vs. People, 123 111. 333; Kibs vs. People, 81 111. 599. — Property in Custody of Lata: One whose property has been seized under an execution against other persons has such general ownership in the property as will support an indictment for larceny against anyone who feloniously steals it while it is in the custody of the law under execution. People vs. Frankenberg, 23 G 111. 408. Identity of Accused: The bare fact that accused removed the property to another county, and there sold it. is not enough to warrant a conviction. Graff vs. People, 134 111. 380. — Ability and Facility: Where the larceny is of jewels, and is effected by the substitution of imitations, imitations substituted by accused in other instances are admissible to show guilt, as tending to show abilitv or means of committing the crime. Gindrat vs. People, 138 111. 103. — Circumstantial Evidence: In prosecution for larceny of a buggy, where circumstantial evidence is relied upon, witness may testify that on the night the buggy was taken from a store in a certain town, he met a team drawing two cannages, going from tlie town in the directions of defendant's home, although he could not recognize anyone or tell how many persons were in the carriage. Miller vs. People, 229 111. 376. Possession of Stolen Property: — Presumption : Possession of property recently stolen is prima facie evidence that person in possession committed the larceny. People vs. Everett, 242 111. 628; People vs. Deluce, 237 111. 541 Williams vs. People, 196 111. 173 ; McGee vs. People, 139 111. 138 Langford vs. People, 134 111. 444; Smith vs. People, 103 111. 82 Sahlinger vs. People, 102 111. 241; Comfort vs. People, 54 111. 404 XIII 111. Notes, 284, § 33. Ev.— 49 770 LARCENY But possession of stolen property immediately after the tlieft, iu order to be prima facie evidence of guilt, must be exclusive and such as to indicate that possessor took the property. If the place where the goods were found was accessible to others capable of steal- ing, the inference cannot be drawn, though the fact is entitled to consideration in connection with other facts in the case. The pre- sumption arising from the possession of recently stolen property may be overcome by proof of any facts inconsistent with the theory of guilt, such as the good character of accused, or his conduct at time he was found in possession. The presumption of guilt which arises from possession of goods recently stolen may be rebutted by any explanation or account given b}^ accused as to how he acquired possession, and the burden is not upon accused to satisfactorily explain such recent possession. Miller vs. People, 229 111. 376; Watts vs. People, 204 111. 233; Conkwright vs. People, 35 111. 204; Cf. Fadfield vs. People, 146 III. 660. — Explanation of Possession: Where acts, conduct and pro- posal to pawn article stolen is proven it is competent for the accused to prove all that was said by him, when he first approached the pawnbroker, in connection with the subject, and as to the manner in which he obtained the article, — not only as part of the res gestae, but as part of the conversation, — to be given such weight by the jury as, from all the evidence in the case, it might seem entitled. Comfort vs. People, 54 111. 404. — Character: The previous good character of accused may, in such case, if shown to be good, repel all presumption of guilt. Conkwright vs. People, 35 111. 204; Watts vs. People, 204 111. 233. Value : — Inclispensahle: Proof of value of thing stolen is indis- pensable. People vs. Silbertrust, 236 111. 144; Thompson vs. People, 125 111. 256; Tobin vs. People, 104 111. 565; Williams vs. People, 44 111. 478; Collins vs. People, 39 111. 233. — Must Be Market Value: Averment of value in larceny must mean market value. Evidence that, it was worth a certain amount to owner and nothing to any body else, does not show market value. To be of a certain market value, it must be capable of being sold for that sum at a fairly conducted sale, conducted with reasonable care and diligence in respect to time, place and circumstances for purpose of obtaining the highest price. People vs. Silbertrust, 236 111. 144. Allegations and proofs must agree, and proof of value is in- effectual in absence of any allegation of value in indictment. Brown vs. People, 1*73 111. 34. Testimony as to value of stolen property, given in answer to the question, "How much is it worth," is sufficient to warrant a find- ing by the jury of such value. Little vs. People, 157 111. 153. — Of Gas: The selling price of gas to consumers in vicinity where defendant wrongfully converted the gas to his own use, and not the cost value of the material from which the gas was made. And it is not necessary that the value of gas consumed at any one LEADING QUESTIONS 771 particular time shall exceed the value of $15, provided the amount consumed from day to day at any one continuous period of taking exceeds such value. Woods vs. People, 222 III. 293. — Money: Value of U. S. Treasury notes need not be proven. Collins vs. People, 39 111. 233. Treasur}^ notes are legal tender for payment of debts and are therefore worth their face value. National bank notes, being redeemable in U. S. Treasury notes, with ample security behind them, must be regarded in law as worth their face value, and silver certificates, though not legal tender, are receivable for all public dues. Their value is fixed by law and, if genuine, their produc- tion in evidence authorizes the jury to infer their value. KeatinsT vs. People, 160 111. 480; Cf. Meadowcroft vs. People, 163 111. 56. It is not sufficient statement of value to allege property stolen was so many dollars in money, and proof that it was current money of the United States cannot aid defect in indictment. Brown vs. People, 173 111. 31. See People vs. Clark, 256 111. 11. LAW See Foreign Law, Legislative Acts and Journals, Statutes. LAW BOOKS See Books, Foreign Law. LAWYERS See Attorneys, Privileged Communications, Legal Conclu- sions. LEADING QUESTIONS Defined : — Indicating Answer: A question is leading when it indicates to witness the real or supposed fact which examiner expects and desires to have confirmed by the answer. Peebles vs. O 'Gara Coal Co., 239 111. 370; Reeves vs. Railway Company, 164 App. 611. A question is leading which puts into the mouth of the witness the w^ords to be echoed back or plainly suggests answer desired. Beggs vs. Postal Tel. Co., 176 App. 406. — Assuming Unproved Facts: Interrogatories that assume an unproved fact are leading. E. & P. Dispatch Co. vs. Cecil, 112 111. ISO; Carpenter vs. Ambroson, 20 111. 170. — Alternative: Examiner using the term ''whether or not" does not necessarily keep the question from being leading, as it may still suggest to witness the answer desired. Peebles vs. O 'Gara Coal Co., 239 111. 370. 772 LEADING QUESTIONS — Reforming Question: AVhere a question is predicated upon information volunteered by witness over sustained objection to a question, an objection to tlie latter may be sustained as leading. Chi. City liy. Co. vs. Shaw, 220 111. 5:12. — Answer Yes or No: But question is not necessarily leading because it can be answered by yes or no. If it also suggests the desired answer or leads the witness to the answer, then it is leading. Schloisinpfor vs. Eogers, 80 App. 420. Right to Propound: — In General: As a general rule the party calling a witness has no right to put to hira what are termed leading questions. Bradshavv vs. Combs, 102 111. 428; Flynn vs. Fogarty, 106 111. 263; Smith vs. Hays, 23 App. 244; Harper vs. Black Diamond Co., 142 App. 594. It is true that leading questions cannot be put on the examination in chief, but it has its exceptions. Some of these exceptions are, leading questions of introductory matter, leading and directing the mind of the witness to the main question ; to the witness hostile to the party calling him, and evidently adverse to him, or evasive, and such like. But they are only permitted under the exercise of a careful supervision and sound discretion of the court, where it appears essential to promote justice. Williams vs. Jarrott, 6 111. 120; Chambers vs. People, 5 111. 351. — VnwiUing Witness: Leading questions may, in the discre- tion of the court, be put to an unwilling and evasive witness. Cassam vs. Galvin, 158 111. 30; Bradshaw vs. Combs, 102 111. 428; Doran vs. Mullen, 78 111. 342; C. & A. Ey. Co. vs. Walker, 118 App. 397; McDonald vs. People, 49 App. 357; Doner vs. People, 92 App. 43; XIV 111. Notes, 1136, §189. — Willing Witness: Where strong bias or interest in favor of cross examining party is shown, court may refuse to allow leading questions to be put. Even with an impartial witness under cross examination, the words cannot be put into the mouth of the wit- ness to echo back again. ClinsTman vs. Irvine, 40 App. 606; Deming vs. Prudential Ins. Co., 169 App. 96. — Hostile Witness: Leading questions are proper on direct examination where witness is hostile. Con. Coal Co. vs. Seniger, 179 111. 370; Meixsell vs. Feasor, 43 App. 180; Williams vs. Jarrott, 6 111. 120. And may be put to an evasive wntness. Doran vs. Mullen, 78 111. 342 ; Doner vs. People, 92 App. 43. — 'Adverse Party: AA^here adverse party is called as a witness, he may be examined in such a way as to elicit the facts even though the examination partakes of the character of cross examination. N. A. Eestaurant vs. McElligott, 227 111. 317. Or where witness is required to testify against his own interest. Flynn vs. Fogarty, 106 111. 264. — Ignorant Witness: Leading questions may be asked of an ignorant person, and a fair administration of justice requires in such case that such questions should be allowed. Doran vs. Mullen, 78 111. 342. — Ageel or Infirm Witness: Witness was quite old, and it was apparent that the infirmities of old age made it difficult to get his testimony of the real matters involved without, to some extent, LEADING QUESTIONS 773 resorting to direct and pointed interrogatories: Held, not error to do so. Funk vs. Babbitt, 15G 111. 408. — Refreshing Memory: Where witness states he does not rec- ollect a part of a conversation the party interrogating him is en- titled to refresh his recollection but not by putting in the mouth of the witness the exact words which he desires him to employ. Detailing of the conversation should be left to the witness. DeniinjT vs. Prud. Ins. Co., 1(39 App. 96. — Child: The court has some discretion in the matter of allow- ing leading questions to be put to a witness of tender years, and it is only where such discretion is abused that a court of review will reverse for that cause. Johnson vs. People, 202 111. 53 ; Coon vs. People, 99 111. 368. — Mentally Defective Witness: Where witness is mentally defective or from physical infirmity is unable to articulate dis- tinctly, he may be examined by the propounding of leading ques- tions. Selenak vs. Selenak, 150 App. 399. — Deaf Witness: IMay be examined by whatever _ means are necessary and best adapted to the case, in the discretion of trial court. Harrison vs. Thackaberry, 248 111. 512; Selenak vs. Selenak, 150 App. 399. — To Contradict: When a litigant has testified to certain facts, the adverse party, or a witness, may be asked leading questions to contradict the former witness. Beeves vs. Peoria Ey. Co., 164 App. 611. — Neiv Matter: In re-direct examination, leading questions may be allowed for purpose of explaining, developing or modify- ing new matter brought out on cross examination. Chicago vs. Sutton, 136 App. 221. — Directing Attention: On direct examination, _ if the object be merely to direct the mind of the witness to a particular point in controversy, question is not improper, though leading in form. Peebles vs. O 'Gara Coal Co., 239 111. 370; Swartout vs. Evans, 41 111. 376; North Chi. St. Ey. Co. vs. Balhatchett, 86 App. 60. Or where question is merely introductory. Greenup vs. Stoker, 8 111. 202. — Identifying Person: For the purpose of identifying a per- son, witness may be asked whether a person in court or the prisoner at the bar is that person. Chambers vs. People, 5 111. 351. — Repeating Previous Answer: Questions although leading may be permitted where but a mere statement or repetition in the form of an interrogatory of what the witness had more fully stated in a preceding answer. Dempsey vs. Whiteside, 31 App. 32. — Negative Pi^rpose: As a general rule, a party to a suit is prohibited from asking leading questions of his own witness; but when the evident purpose of his inquiry is to merely negative a fact or circumstance, a leading question is sometimes proper, and forms an exception to the general rule ; as, where a witness is called to contradict another who had stated that such and such expres- 774 LEADING QUESTIONS sions were used, or the like, counsel are sometimes permitted to ask whether some particular expressions were used, or things said, instead of asking the witness to state what was said. C. & A. E. R. Co. vs. Eaton, 96 App. 570; Reeves vs. Peoria Ev. Co., 164 App. 611. — Uncontroverted Fact: "Witness was asked "Was he (the de- ceased) killed in this county and state?" and answered "He was." The question was objected to as leading, and this was the only- testimony of the venue : While question was objectionable, but as the evidence was upon a point practically conceded, and about which there could be no possible controversy, the leading form of the question was not prejudicial or substantial error. Cannon vs. People, 141 111. 270. — Be-Emphnsvi: After a witness for the people has identified the accused as the person who fired the shots, it is improper to allow counsel for the People to induce the witness to emphasize his former statements by asking the leading question, "Are you positive that he is the man that shot" the deceased? Briggs vs. People, 2] 9 111. 330. — Conclusions of Witnesses: Questions which are leading and suggestive in form and call for conclusions upon material points are improper. Devine vs. Tazewell Coal Co., 161 App. 547; Spring. Con. Ey. Co. vs. Welsh, 155 111. 511. — Anticipating Defense: A leading question asked upon the direct examination of a witness for the purpose of anticipating a defense is improper and an objection thereto is properly sus- tained. Hayward vs. Seott, 114 App. 531. — By the Court: Court may, in its discretion, of its own motion ask questions in leading form. •Swartout vs. Evans, 41 111. 376. — Cross Examination: A party has a right to propound lead- ing questions. Phares vs. Barber, 61 111. 271. In the examination of witnesses, counsel are prohibited, even upon cross examination, from assuming any material facts in issue, and which are to be found by the jury, or from assuming that par- ticular answers have been given contrary to the facts. Haisli vs. Mnnday, 12 App. 539. — ■ Rebuttal: There is no rule that allows the asking of sug- gestive questions of one's own witness on rebuttal different from the examination in the first instance. Eobisliaw vs. Schiller Piano Co., 179 App. 163. Discretion of Court : The allowance of leading questions calling the attention of the witness to the subject with reference to which his testimony is desired rests largely in the discretion of the trial court, and will not call for a reversal in absence of clear abuse of such discretion. Mayville vs. French, 246 111. 434; McCann vs. People, 226 111. 562; McGuire vs. People, 219 111. 16; Crean vs. Hourigan, 158 111. 301; Dumerski vs. Coal Co., 149 App. 513; Selenak vs. Selenak, 150 App. 399; XIV 111. Notes, 1136, §187. LEGAL CONCLUSIONS 775 It is not an abuse of discretion to permit a question otherwise proper to be put in leading form. Day vs. Porter, IGl 111. 2;55. It is only where such discretion is abused and substantial injury done that a court of review will reverse for that cause. Peebles vs. O'Gara Coal Co., 239 111. 370; Johusou vs. People, 202 111. 53 ; Crean vs. Hourigan, 158 111. 301 ; Eiordin vs. Chi. City Ev. Co., 178 App. 323. The allowance of a leading question upon trial without a jury is not cause for reversal where it appears that no injury was done to the objecting party, as where substantially the same question by him on cross examination elicited the same answer. Fox vs. Steever, 156 111. 622 ; Weber Wagon Co. vs. Kehl, 139 111. 644. And it is not sufficient ground for reversal that a leading ques- tion was asked plaintiff in rebuttal, the objection at the time being general. Denipsey vs. Whiteside, 31 App. 32. Objections : An objection must be specific. A general objection to a question will not reach the objection of its being leading. Ruddy vs. McDonald. 244 111. 494; Dunn vs. People, 172 111. 582: Funk vs. Babbitt, 156 111. 408; Hilton vs. Santelman, 129 App. 109. One cannot complain of a leading question which does not injure him. Dougherty vs. Heekard, 189 111. 239; Funk vs. Babbitt, 156 111. 408; Bulson vs. People, 31 111. 409; Gibson Co. vs. Glizozinski, 76 App. 400. LEGAL CONCLUSIONS See Conclusions of Witnesses, Delivery, Insolvency, Wills, Title. Expert and Opinion : — In General: Interrogatory asking a witness to testify to a matter which is, in part, a question of law, is improper. Hoener vs. Koch, 84 111. 408; Thomlin vs. Hilyard, 43 111. 300; C. & A. R. R. Co. vs. S. & N. W. R. Co., 67 111. 142; Herrick vs. Gary, 83 111. 85; Huftalin vs. Misner, 70 111. 55; XII 111. Notes, 524, §384. An opinion as to whether prescribing medical device as a cure for rheumatism "would be regarded as practicing medicine" as the witness understood the term, incompetent. People vs. Lebr, 196 111. 361. An opinion as to whether title was good or bad is incompetent. Mead vs. Altgelt, 136 111. 298; Evans vs. Gerry, 174 111. 595. Opinion as to whether particular employment is extra-hazardous within meaning of statute, incompetent. Swift & Co. vs. Miller, 139 App. 193. Whether an instrument was delivered or not is a question of fact, and the statement of a witness that it was is a mere legal conclusion, and therefore incompetent. Burnap vs. Sharpstein, 149 111. 225. Opinion as to whether certain train was a regular passenger train within meaning of statute, incompetent. I. C. R. R. Co. vs. People, 143 111. 434. 776 LEGISLATIVE ACTS AND JOURNALS — Legal Effect of Documents: A witness cannot give his opin- ion as to construction of contract. A. M. c;. & N. A. Ky. Co. vs. Northeott, 3 5 111. 49. Nor as to meaning of condition, the understanding of which requires no course of previous study. Lord vs. Owen, 35 App. 382. Or the constiniction of a will. McFaiiand vs. MeFarland, 177 111. 208. Cannot give opinion as to effect of a mortgage. Phares vs. Barber, 61 111. 271. "''"' Or whether a deed had heen drawn on hack of a patent. Charter vs. Graham, 56 111. 19. And as to words in deed and what thev include. Hutchinson vs. Ulrieh, 145 111. 336; Sanford vs. Eawlings, 43 111. 92. Witness cannot state, without giving facts, that assignment of note and mortgage was full assignment. Barrett vs. Hinckley, 124 111. 32. The legal sufficiency of a document is a question for the court, and is not a subject for expert testimony by attorneys or other witnesses. Eankin vs. Sharpless, 206 111. 301. Nor may attornevs testifv as to sufficiency of legal proceedings. Massure vs. Noble, 11 ill. 531. LEGISLATIVE ACTS AND JOURNALS See JuDicLA_L Notice Statutes. Journals : — Presumption: Silence of journals as to matter required to be shown, is evidence of its non-existence. People vs. Bowman, 247 111. 276; Eyan vs. Lynch, 68 111. 160; XIV 111. Notes, 615, § 20. — AelmissihUity in Evidence: Journals of either branch of the legislature are admissible to show that an act was not passed in the manner prescribed by the constitution, and in such case the journals must be accepted as containing a true record of proceed- ings of the legislative body. Neiberger vs. McGiillough, 253 111. 312; People vs. Bowman, 247 111. 276; XIV Notes, 649, § 277. Parol evidence is admissi])le to establish the identity of journals. People vs. McCulloiigh, 210 111. 488. Journals must be introduced in evidence like any other record. Erford vs. City of Peoria, 229 111. 546; Grob vs. Cushmau, 45 111. 119. "Wlien offered, they prove their own authenticity. Grob vs. Cuphmau, 45 111. 119. A dulv authenticated copy of original is competent. i. C. E. E. Co. vs. Wren, 43 111. 77. Acts of Legislature: — • Pre sum pi ion of Validity: Every presumption will be in- dulged in favor of the validity of an act, as no act is presumed beyond the power of the legislature unless there is no reasonable doubt that it is. People vs. McCiillough, 254 111. 9; People vs. Joyce, 246 111. 124. LEGITIMACY 777 An act found in the office of Secretary of State, duly authenti- cated, is presumed to have been duly passed. People vs. McCullough, 210 111. 488. So a vetoed bill found in the office of Secretary of State, with proper record entries showing filing of same, accompanied by veto, affords presumption that same did not become a law. People vs. McCullough, 210 111. 488. And will be presumed that a law certified to by the _ Secretary of State is in the form in which it was passed by the legislature. Erford vs. City of Peoria, 229 111. 546. — Parol: Courts can never receive oral proof that a law has been adopted or that an act essential to its validity has been per- formed. People vs. McCullough, 210 111. 488; People vs. Rose, 254 111. 332. LEGITIMACY See Pedigree. Presumptions : A child born in lawful wedlock is presumed legitimate. Smith vs. Heulein, 174 111. 184; Eobiiisou vs. Rupiecht, 191 111. 424; Metheny vs. Bohu, 160 111. 263; Orthwein vs. Thomas, 127 111. 554; Zackmann vs. Zackmann, 201 111. 380; People vs. Griffin, 142 App. 588 ; XI 111. Notes, 557, § 2. Even though parents are living apart by mutual consent. Diehiian vs. Douglas, 102 111. 341. And if a child bom fifteen days after her mother's marriage is treated and cared for by the husband as his child, the presumption of its legitimacy is not overcome by the fact that the mother was divorced from a former husband only twenty days before such marriage, particularly where the divorce was obtained by publica- tion. Zaekmaim vs. Zackmann, 201 111. 380. Ante-nuptial conception does not weaken the presumption of legitimacy from post-nuptial birth. Zackmann vs. Zackmann, 201 111. 380. The presumption that legal husliand of a woman is the father of her children cannot prevail when it appears from the evidence that in the course of nature he could not have been the father of them, Eobinson vs. Eupveeht, 191 111. 424. Where mother an Indian presumption of legitimacy is not over- come by proof that child is colored. 111. Land & Loan Co. vs. Bonner, 75 111. 315. Presumption that husband's child is child of wife is not con- clusive. Stone vs. Salisbury, 209 111. 56. Burden of Proof: The burden of proof is on the party alleging illegitimacy. Zackmann vs. Zackmann. 201 111. 380; Metheny vs. Bohn, 160 111. 263; Orthvv-ein vs. Thomas, 127 111, 554. 778 LEGITIMACY Admissibility of Evidence : — Aoii-acccss: Non-access may be proven, Kobiiison vs. Euprecht, 191 111. 424; McCuUough vs. Murphy, 45 111. 256. — Declarations: Declarations of supposed parent and deceased members of her family may be proven to establish parentage where relationship is illegitimate. Declarations of third parties are in- admissible. Champion vs. McCarthy, 228 111. 87. — Doubts and Rumors: Evidence of doubts, rumors and the like as to the paternity of a child when he appeared in the family is inadmissible upon the question of his parentage. Metheuy vs. Bohn, KiO ill. 263. — Opinion of Witnesses : Incompetent to prove paternity of child. Metheny vs. Bohn, 160 111. 263. — Competency of Mother: A married woman cannot say that her off-spring is spurious. Vetten vs. Wallace, 39 App. 390. Weight and Sufficiency: The evidence against the legitimacy of a child born in wedlock must be strong and conclusive. Orthwein vs. Thomas, 127 111. 554; Wallace vs. Rappleye, 103 111. 229. — Marriage : The law does not require an acknowledged and conceded child to prove an act of marriage to maintain his legit- imacy. Orthwein vs. Thomas, 127 111. 554. — Acknowledgment: Under section 15 of the Bastardy act, where there has been a judicial finding as to the paternity of the child, the subsequent marriage of the mother and the reputed father renders the child legitimate without acknowledgment, wiiile under section 3 of the statute of Descent, subsequent marriage of the parents and acknowledgment of the child by the father renders the child legitimate. Miller vs. Pennington, 218 111. 220. The provisions of section 2 and 3 of the statute of Descent, relat- ing to illegitimates, apply to all illegitimate children, even those born to parents who, at the time of conception and birth of such children, were living in a state of adultery, in violation of their marriage vows and the laws of the state. Eobinson vs. Euprecht, 191 111. 424. There being no provisions of the Illinois statutes relating to illegitimates which excludes the children who are the result of adulterous intercourse from the benefits of such statutes, that fact makes no difference in determining whether children have been rendered legitimate. Miller vs. Pennington, 218 111. 220. An oral acknowledgment by the father, of his paternity of a child, coupled with the fact of his marriage to the mother, is suffi- cient, if clearly proven, to fix the legitimacy of the child and its right to inherit, regardless of what the purpose of acknowledgment was, or of what the father might afterwards have declared. Miller vs. Pennington, 218 111. 220. LETTERS 779 LETTERS See Best and Secondary, Immunity, Copies, Privileged Com- munications, Production of Documents. Mailing and Receipt : If a letter, properly stamped and addressed, is deposited in the postoffice, the presumption is that it was received by the person to w^hom it was directed, if living at the place and usually receiv- ing letters there, Clark vs. People, 224 111. 554; Ashley Wire Co. vs. 111. Steel Co., 164 111. 149; Equit. Life Ins. Co. vs. Frommhold, 75 App. 43; XII 111. Notes, 478, § 39. But there is no presumption of the delivery of a single letter to both of two parties to whom it is directed, unless it be a delivery by way of partnership or other agency. Dennison vs. Taylor, 142 111. 45. The presumption of delivery may be rebutted by proof that such letters w^ere not received. Young vs. Clapp, 147 111. 176; Meyer vs. Krohn, 114 111. 574. The recital in a letter that it was in answer to one received by the writer, cannot be admitted for purpose of establishing that fact, as against the person addressed. Eazor vs. Eazor, 149 111. 621. The contents of a postal card, duly sent by mail, are competent without proof of affixing the stamp. Boening vs. North Amer. Union, 155 App. 528. Court will take judicial notice that by ordinary course of post, a letter mailed in this state will reach adjoining state in a reasonable time. Natl. Mas. Assn. vs. Seed, 95 App. 43. Admissibility : — As Admission: It is always proper to show the voluntary statement or admission of a party to the suit, against his interest, even though made to one not a party to the suit, and a letter to a third person, containing such admission, is admissible against the writer. Freet vs. Amer. Elec. Co., 257 111. 248. — Illegally Ohiained: Although letters and papers may be un- lawfully, or by artifice and deceit, obtained from the possession of the party charged with crime, this will aflford no objection to their admissibility in evidence against him, if they are otherwise com- petent and j>ertinent. Siebert vs. People, 143 111. 571; Langdon vs. People, 133 111. 382; IMossroan vs. Thorson, 118 App. 574. — Ansivcrs Need Not Be Introduced: It is iwt necessary that letter should be put in evidence before the answer thereto can be admitted. Barnes vs. Northern Trust Co., 169 111. 112. — Authority of Writer: In action to recover alleged indebted- ness, a postal card by the casihier of a bank, reporting upon a draft, containing the statement, ''Parties promise adjustment of matter in a few days, ' ' is incompetent, such post card being written 780 LETTERS without the nnthority, direction or knowledg:e of party sought to be charged with the debt. James vs. Couklin & Hill, 158 App. 640. Letters from the vice-president of a corporation are admissible against the corporation where it appears that the corporation approved of and directed the negotiations being carried on by him in the letters. Union Surety Co. vs. Tenny, 200 111. 349. — Whole of Letters: ( See Whole op Utterance. ) — Offers of Compromise: Letters containing offer of com- promise, are inadmissible. Harrison vs. Trickett, 57 App. 515; O'Mara vs. Cardiff Coal Co., 154 App. 321. — To Show \Vhereabouts of Person: It is not competent to prove the whereal)outs of a party at a particular time by testimony as to the fact that a letter had been received from him at a par- ticular place at such time. The letter itself, with the envelope and post mark, should be introduced. Hunter vs. Hanson, 151 Ajip. 446. — To Show Mental Condition: (See Wills.) — To Shoiv Adultery: (See Adultery.) — To Show Competeney of Employe: Letters of recommenda. tion, to show competency of employe, are' inadmissible Staunton Coal Co. vs. Bub, 21 S 111. 125. — To Prove Agency: Letters written by principal are admis- sible to prove agencv as as-ainst him. Case vs. Lym'an, 66 111. 229. — To Show Revocation of License: A letter containing an alleged revocation of a license is not competent unless relied upon in the pleadings. Granneniann vs. Meyer, 169 App. 291. — To Impeach Witness: Where there was a question whether a party pursued a certain line of action, and he denies it, a letter from him to a third person, tending to show that he has pursued it, is admissible. Stewart vs. Butts, 45 App. 512. A portion of a letter is admissible in evidence against the writer, to prove an admission therein, where there is no spoliation or mutilation and no suspicion of wilful suppression of the residue, the portion offered being an entire sheet beginning and ending with matter not relevant to the matter in issue, and the writer having a letter-press copy of the- whole letter which he might pro- duce if he chose. Cramer vs. Gregg, 40 App. 442; Heinsen vs. Lamb, 117 111. 549. Letter written by party is admissible to impeach writer's testi- mony. Dick vs. Marble, 155 111. 137; Fisher vs. Meek, 38 111. 92; Doyle vs. Doyle, 257 111. 229. — To Show Motive: Where a conspiracy to obtain money from a bank by false pretenses is charged, the whole series of trans- actions leading up to the final consummation of the conspirators' LETTERS 781 purpose, both before and after organization of the bank, may be shown ;_ and the fact that a letter from one defendant to another, indicating their fradulent purpose, was written before the bank had started in business, does not render it inadmissible. People vs. Kail, 242 111. 284. In action for slander, the court admitted in evidence a letter purporting to have been written by defendant to plaintiff, to show a motive for the utterance of the slanderous words, as, that the defendant had been a suitor of plaintiff, and had been discarded by her shortly before the publication of the slanderous words ; held proper. Ransom vs. McCurley, 140 111. 626. — To Show Immoral Relations: In bastardy proceedings, let- ters from defendant, to relatrix, showing intimacy and relation between them, are admissible in corroboration of complainant's testimony. Sebarf vs. People, 34 App. 400. — Undelivered Letter: On trial of a man for the murder of a young woman by poison, letters found in his possession, addressed to the deceased, and shown to be in the handwriting of defendant, tending to prove the relations existing between them, and thus tending to prove the motive, are admissible in evidence against the defendant, without direct proof that the letters had been delivered to deceased. Simons vs. People, 150 111. 66. — Letters of Third Persons: Letters received from third per- sons, being ex parte statements of the witness not under oath, are inadmissible as evidence, and are mere hearsay. Capen vs. DeSteiger, 105 111. 185; I. C. E. R. Co. vs. Cobb, 72 111. 148; Express Co. vs. Hutchins, 67 Til. 348; Winslow vs. Newlin, 45 Til. 145; Iving vs. Bush, 36 111. 142; Inglohart vs. Jernagan, 16 111. 513; Delia Bag Co. vs. Kearn, 112 App. 269; XII 111. Notes, 496, §164. Letter containing an ex parte unsworn statement of one not a party to a suit, is hearsay and incompetent. Kiiek vs. Boost, 145 App. 411. Letters written to a water tunnel contractor by agent paid by him to examine the work and report their conclusions as to whether it was properly done, are not admissible in evidence in favor of the contractor in litigation, growing out of the contract under which the work was done. Letters or reports written to a public contractor by agents whom he has himself employed and paid, are not rendered admissible in his favor, in litigation against the city, by the fact that he showed them to the commissioner of public works, who read them without comment. City of Chicago vs. McKetchney, 205 111. 372. In an action on a benefit certificate, letters and correspondence between the Grand Master of the association and members of the Judiciaiy committee, in reference to the standing of the member upon which plaintiff's claim is based, are inadmissible in evidence, being statements of the officers or defendant association, made in 782 LETTERS the absence of the opposing party, and the law does not permit a party to a suit to make evidence for himself. Bagley vs. Grand Lodge, 131 111. 498. In an action for criminal prosecution, a letter by state's attorney to defendant, written some time before the publication chargecl, is inadmissible on issue of guilt or innocence of defendant. People vs. Straueh, 153 App. 544. In action against labor union for so contracting wdtli railroad company as to work discharge of plaintiff, letter from company to plaintiff is inadmissible. Sutton vs. Worknieister, 164 App. 105. A letter, unsigned and written in an unknown hand, received by a witness, which states that the writer has heard the adverse party say he will give the witness a. reward if he will not appear to testify, is not admissible. Burnett vs. Lutterell, 52 App. 19. A letter written by a guardian, narrative of past transactions, is not competent testimony against his ward or his successor in office, on a settlement of his guardianship. Cheny vs. Eoodhouse, 135 111. 257. — Genuineness: Letter received in reply to others proved to have been sent to a party, are admissible in evidence without proof of writer's handwriting, Grayville Waterworks vs. Burdick, 109 App. 520. Where a letter, purporting to have been written many years before the trial, having the appearance of having been written at its date, is found in the possession of the person to whom it is addressed and resembles the handwriting of the person alleged to have signed it, the fact of his denial of its execution, when it is evident that he is in doubt as to having written same, will not be sufficient to reverse the finding of genuineness of such letter, Rogers vs. Tyley, 144 111. 652. An objection to the admission of a letter in evidence, that it is "incompetent and immaterial," does not raise the question of its genuineness, where it is shown to be written on the letter-head of the party who signs it, and to have been received in the due course of mail by party offering it in evidence. Franklin vs. Krum, 171 111. 378. Self Serving Letters : — In General: Letters written to a party and not replied to, which are mere self-serving declarations, are incompetent in behalf of writer. Howard vs. Anderson, 162 App. 256; Bagley vs. Grand Lodge, 131 111. 498 ; Law vs. Woodruff, 48 111. 399. Letters containing self-serving statements are inadmissible. O'Meara vs. Cardiff Coal Co., 154 App. 321. So in suit by an employe of railroad company, to recover money paid by him to the company, letters written by plaintifif to the officers of the company, are not admissible as evidence in his favor. St. L. & T. H. Ey. Co. vs. Thomas, 85 111. 464. Self-serving statements contained in a letter are incompetent where the effect would be to give such party the benefit of what is claimed other parties would testify to, who are not witnesses, Eeigel vs. Des Moines Ins. Co., 165 App. 448. LETTERS 783 Letters written in connection with a proposition of compromise, which contain self-serving statements, are incompetent for party- making them. Barnett vs. Noble, 155 App. 129. A letter to fire insurance adjuster, in reply to one written to insured, consisting largely of self serving declarations, is inadmis- sible in an action on a policy of insurance. Milium vs. Hawkeye Ins. Co., 171 App. 272. Letters written by a joliber to a manufacturer, stating the job- ber's claims as to defectiveness of goods purchased, and what customer had said about the quality, are not evidence that the goods were defective, and not admissible as proof of such fact, in action by jobber against manufacturer to recover price paid, such letters being mere declarations of claims of plaintiiif. Jewell Co. vs. Hamilton Co., 257 111. 238. — To Shoiv Notice: A letter written by a party is not admis- sible in evidence in his favor except to show notice or demand, and the fact that such letter remained unanswered does not tend to show acquiescence on part of party receiving it. City of Chicago vs McKetchney, 205 111. 372. Letters written to a party to a transaction, while the same is in fieri, are sometimes competent in behalf of the writer, to show intention, notice or as an inducement to the allowance of punitive damages. Morehouse vs. Terrill, 111 App. 460. Letter written from owner to insurance company is admissible to show owner was not refusing to submit loss to appraisement. Western Assn. vs. Hankins, 221 111. 304. In action for salary, letters written by the plaintiff to his em- ployer, after plaintiff had been told not to go back to work until notified, which stated that plaintiff did not consider himself dis- charged, and asking for information on the point, are properly admitted in evidence where their effect is limited, by instruction, to the sole purpose of showing notice to the employer that plaintiff did not understand that he was discharged. Eeiter vs. Standard Scale Co., 237 111. 374. Secondary Evidence: — Proof of Mailing: A copy of a letter by one party, addressed to other party, the original of which was not shown to have been mailed or received, is only an ex parte declaration and not admis- sible in evidence. Booth & Co. vs. Steffey, 150 App. 584. Proof that one letter, written by plaintiff to defendant, was properly addressed and mailed, and that receipt of another letter was acknowledged by defendant, is sufficient proof of delivery of the two letters to authorize the admission of copies thereof in evi- dence. Dick vs Zimmermann, 207 111. 636. — Notice : Evidence by party to a suit as to contents of a letter written by him to the adverse party, is inadmissible, where no notice to produce the original was given. Young vs. People, 221 111. 51 ; Wright vs. Eaftree, 181 111. 464. A notice to counsel, two days before a trial, to produce a letter 784 LETTERS to be used as evidence, and which he knew would be wanted, is sufficient, and if not produced, a copy may be read. Warner vs. Campbell, 26 111. 2So. Where a letter is destroyed, a copy is the best evidence, and notice to produce a copy should be rec^uired before testimony of the contents is permitted. Prot. League vs. Langsdorf, 126 App. 572. — Preliminary Proof: Secondary evidence of contents of letters is admissible where preliminary proof shows that writer either destroyed or mislaid them, after transaction was closed, and that he is unable to find them, and has no knowledge of their existence or whereabouts. Hoblit vs. Howser, 171 App. 19; Case vs. Lyniau, 66 III. 229. — • Letter Press Copies : See Letter Press Copies. — Lost Letter: In order to permit secondary evidence of a lost letter, the evidence must show that search was made in good faith, and as thoroughly as though all benefit of the instrument would be lost unless it were found. Prussing vs. Jackson, 208 111. 85; McNeniar vs. McKennan, 79 App. 354. Upon proof of the loss of an original letter, oral evidence as to the contents thereof is admissible. Kashgarian vs. Janjigian, 160 App. 294; Yoimg vs. People, 221 111. 51; Hazen vs. Pierson, 83 111. 241. Where evidence of contents of lost letters was material and rel- evant to the issue, party desiring such testimony, being party to whom they were addressed, testified when he received them he put them in a cupboard ; that he had looked for them there, and made diligent search for them everywhere he thought they were likely to be placed, and was unable to find them, and that they could not be found. It was held that sufficient foundation was laid for adrais- sion of proof of their contents. Case vs. Lyman, 66 111. 229. Where proper foundation is laid for proof of contents of a lost letter or writing, the fact that witness cannot tell particularly the contents, is no ground for rejection of his testimony. He may, in such case give his best recollection. Case vs. Lyman, 66 111. 229. On trial of suit for divorce, brought by wife, her brother was called by her as a witness, and on cross examination the court refused to allow him to testify to contents of a letter written by him to defendant, though he w^as allowed to state the facts he knew and the state of his feelings. No error in ruling. Ward vs. Ward, 103 111. 477. Explanation of Letters : —~Ln General: AVhere a letter is not contractual, it is permis- sible to explain or construe a statement therein, by attending cir- cumstances or to show that it originated in some mistake, where it is not the basis of the action or the defense. Smith vs. Mayfield, 163 111. 447; Harrison vs. Thackaberry, 154 App. 246; Carr "vs. Miner, 42 111. 179; Cleveland Seed Co. vs. Moore, 142 App. 615; Rernhard vs. Trimble, 45 App. 56; C. B. & Q. R. E. Co. vs. Bartlett, 20 App. 96; XII 111. Notes 516, § 328. LETTERS 785 A statement in a letter introduced as an admission of defendant's personal liability under the contract sued on, for the amount due plaintiff, may be explained or contradicted, where the letter is not a part of the contract. Smith vs. Mayfield, 163 111. 447. If a party writes a letter stating he has received a sum of money for the party to whom the letter is addressed, and such party, in acting upon the statement in the letter, as to amount collected, loses the security he held against his debtor, the party making the statement is estopped from showing he had received a less sum. Carr vs. Miner, 42 111. 179. — Previous Correspondence: The previous correspondence of the parties may be considered for purpose of determining their meaning and intention in the use of the words employed, but not for the purpose of varying or contradicting the plain terms of the letter. Auditorium Assn. vs. Fine Arts Bldg., 244 111. 532; LaSalle Theater vs. Taft, 156 App. 350. "Where part of a letter is introduced in evidence such portions of the letter to which it is a reply as are necessary for an under- standing of its full meaning are admissible. Gallagher vs. Singer Sewing Mac. Co., 177 App. 198. — Circumstances: The fact that the letter was written by the hand of another, at the dictation, and in the presence of party to be charged, may be proven by parol evidence of the statements of party to be charged, or by any other relevant circumstances. Morton vs. Murray, 176 111. 54. In action tried by the court without a jury, to recover purchase price of a machine, the question whether a letter introduced in evidence was intended by the parties as a complete and final state- ment of the whole agreement between them, is to be determined from the circumstances of the case. Fuchs & Lang Co. vs. Kittredge Co., 242 111. 88. — Anibiguity and Intention: Reference in letter, written by a A^atness, cannot be explained where there is no ambiguity. Williard vs. P. C. C. C. & St. L. Ey. Co., 162 App. 427. Where letter made reference to a particular conversation with respect to the subject matter of a trust which was thus manifested in writing, and letter itself did not fully disclose the character of the trust ; held competent to prove by parol the matters re- ferred to in the letter, for the purpose of describing or defining what was meant by the letter, as showing the truth of the trans- action. Kingsbury vs. Burnsides, 58 111. 310. The meaning of a letter cannot be varied by parol. The extent to which the writer of a letter may be permitted to testify in regard thereto is to show the circumstances under wdiich it was written, but he can not testify as to his intention or purpose in writing it, and thereby avoid its etfeet as a statement or declaration of the facts contained in it. Harrison vs. Thackaherry, 248 111. 512; Davis vs. Fidelity Ins. Co., 208 111. 375; Grant vs. Gallup, 111 111. 487; Flower vs. Brumbaugh, 131 111. 646. Ev.— 5 786 LETTER PRESS COPIES Effect of Introducing: AVlicre one party read in evidence letters from the other, and latter failed to read those received from former, court should not instruct the jury to draw the strongest inferences from that fact, as the law presumed they contained evidence against him or that he would have produced them, or accounted for their non-produc- tion. The law indulges no such presumption, and as a general rule, a party cannot introduce his own declaration in evidence, nor will the law indulge presumptions against his adversary, if he fails to introduce them in evidence. Such letters are no more than the declarations of the party writing them. Law vs. Woodnife, 48 III. :;99. AVhere party introduces letters of adverse party, he will make their contents evidence against as well as for himself. Bailey vs. Partridge, 134 111. 188. The doctrine in such case is that the admission with the accom- panying declaration which serves as an answer to the admission, is to he received in evidence and the answer is conclusive. Morris vs. Jamieson, 205 111. 87. (See Whole of Utterance.) Supplementing by Parol: Where letters are not, in themselves, so complete as to constitute a complete written contract, parol evidence is competent to supple- ment them. Penn-Amer. P. G. Co. vs. Hawes, 170 App. 224; Fuchs & Lang vs. Kittredge & Co., 242 111. 88. LETTER PRESS COPIES See Abstracts of Title. Best and Secondary: — Private Writings: A letter press copy of writing is not an original. It in no wise differs from any other accurate copy than in the mode in which it is made and can be used in the place of the original in no case where a proved copy made in another manner would not be e(iually admissible. King vs. Worthington, 73 111. 161; Text Book Co. vs. Machom, 158 App. 543. — Official Record: The letter press book in which the custod- ian of the records of a local weather bureau takes copies on the blanks on which weather conditions were made up each month, constitutes the record of the local bureau where the original blanks are sent to the general department after copying. C. & E. I. R. Co. vs. Zapp, 209 IlL 339; S. C, 110 App. 553. Admissibility: Letter press copies of correspondence, where originals are in possession of the adverse party who refuses to produce them, may properly be received in evidence. Berry vs. Allen, 59 App. 149. Letter press copies of a receipt and entries made in books of account in the regular course of business are competent secondary evidence to prove execution and delivery of a deed by them. Harrell vs. Enterprise Sav. Bank, 1S3 111. 538. LIBEL AND SLANDER 787 A proper foundation for admission of letter press copies of let- ters is laid where notice to produce the orig:inals is given and counsel admits he cannot produce them, the writer testifying to the cor- rectness of the copies, and that originals were mailed to the addressee. Union Surety Co. vs. Tenney, 200 111. 349. LIBEL AND SLANDER PROOF OF WORDS USED. In General: The words alleged in the declaration, or enough of them to amount to a charge of the offense alleged to have been imputed, must be substantially proven. The rule is not that the substance of the words alleged must be proved. Although the words proven are equivalent to the words charged, or have the same meaning, or amount to a charge of precisely the same offense, yet not being the same words or substantially the same, the action cannot be maintained. Ransom vs. McCurley, 140 111. 626; Schofield vs. Baldwin, 102 App. 560; Moore vs. :\Iapey, 152 App. 648. Equivalent Words Insufficient: Slanderous words must be proven literally and enough of them to establish the slander charged, other equivalent words will not do. Kuhlman vs. Kiefer, 147 App. 162; Hill vs. Leffler, 133 App. 266. All Need Not Be Proven : All slanderous words charged in a particular count of the declaration for slander need not be proven to successfully main- tain the action. Proof of enough of such words to constitute the cause of action is sufficient. lies vs. Swank, 202 111. 453; Dubois vs. Bobbins, 115 App. 372; Comer vs. McDonald, 117 App. 450. More May Be Proven: So many of the words complained of must be proven, as will establish the slander. Other words of similar import, or equiv- alent words, if proven, wall not sustain the action. More words may be proven if they do not change the meaning. Wilbur vs. Odell, 29 111. 456; Sloeum vs. Kuykendall, 2 111. 187 Thomas vs. Fisher, 71 111. 576; Comer vs. McDonald, 117 App. 450 Norton vs. Gorden, 16 111. 38; Sanford vs. Gaddis, 15 111. 229 Baker vs. Young, 44 111. 42; XIII 111. Notes, 299, § 110. Time: The time of speaking as laid in declaration, is not material. Hosley vs. Brooks, 20 111. 115. Place : The place of uttering may be proven to have been in a county other than that alleged in declaration. Cassem vs. Galvin, 158 111. 30; Owen vs. McKean, 14 111. 459; Hurley vs. Marsh, 2 111. 329. 788 LIBEL AND SLANDER Meaning: Evidence is admissible to explain meaning of terms used. Siegel vs. Thompson, 181 App. 164; Gaines vs. Gaines, 109 App. 226; Sheen vs. Peoria Jonrnal Co., 53 App. 267. When libelous article refers to other articles published in same paper, and when read in connection with same, has a significance very different from meaning when read alone, defendant may give in evidence such articles. Young vs. Gilbert, 93 111. 595. Printed Article : The manuscript is the higher and better evidence and should be produced. The printed article is secondary and is competent to be received in evidence only after proof has been made excusing the production of the primary evidence. Prussing vs. Jackson, 208 111. 85. Notes made by reporter, of conversation had with defendant, and the article prepared by the reporter from the notes, for pub- lication, are primary evidence. The printed article is secondary evidence. Clifford vs. Drake, 110 111. 135. Though article published substantially according to manuscript, it is not admissible until original is accounted for. Strader vs. Snyder, 67 111. 404. Fact that defendant is compelled, over objection, to testify that he wrote article similar to one published docs not render printed article admissible, without proper proof of loss or destruction of original. Prussing vs. Jackson, 208 111. 85. Publication itself is, of course, the best evidence of the charges made in it, and the original document containing the defamatory matter must be produced if possible ; but where original has been destroyed or lost beyond a reasonable hope of finding it, or is in the hands of adverse party, who refuses to produce it, secondary evidence of the contents is admissible. Prussing vs. Jackson, 208 III. 85. Where party voluntarily makes statement of facts to a reporter, and editor, from facts communicated, writes article which is read to such party, who stated it was true, but to let it go, he will be held to have published tlie article. Clay vs. People, SG 111. 147. IDENTITY OF PLAINTIFF, Understanding of Hearers : Testimony of hearers of defamatory utterances as to the sense in which they understood the words is competent. Ball vs. Evening Amer. Pub. Co., 237 111. 592; Nelson vs. Borchenius, 52 111. 286; Merrill vs. Marshall, 113 App. 447. And this rule applies to a statement of the witness to the effect that he understood alleged slanderous words were spoken with reference to plaintiff, where plaintiff's name was not used. Ball vs. Evening Amer. Pub. Co., 237 111. 592; Dexter vs. Harrison, 146 111. 169. A witness who heard the alleged slanderous words used may state the name of the person against whom they were intended to be applied, notwithstanding such testimony may not be predicated LIBEL AND SLANDER 789 upon what was said. The sources of the knowledge of such wit- ness as to who was intended may be inquired into upon cross examination. Scott vs. Snyder, 116 App. 393. The mere fact that a libelous article in a newspaper relating to the death of a woman described in the article as "Pearl Ball" exhibits a likeness of plaintiff, whose name is Rose Ball, stating such likeness to be the "latest photograph of ]\Iiss Ball," does not, of itself, establish the words were published of and concerning plaintiff. Ball vs. Evening Amer. Pub. Co., 237 111. 592. MALICE. Pleading: While the defense that words spoken or published were not spoken or published in the malicious sense imputed in the decla- ration but in an innocent sense or upon an occasion which war- ranted the publication may be given in evidence under the general issue, yet, the want of malice may be specially pleaded. Gilmore vs. Litzeliiian, 41 App. 541. Presumptions : Where words, actionable in themselves, are not spoken under privileged circumstances, it is no defense that parties believed the words to be true, and were not actuated by malice towards plaintiff. The law presumes malice, which cannot be rebutted under the general issue. Gilner vs. Eubank, 13 111. 271; Conwisher vs. Jolinson, 127 App. 607. When words are published, imputing the crime of perjury, the law will- imply malice and consequent injury. In such case, anger affords no justification. It can only palliate the offense and reduce the damages where plaintiff has provoked the slander. Flagg vs. Eoberts, 67 111. 485. A^Hiere publication is shown to have been made, and charges a felony, malice is presumed. Stephens vs. Com. News Co., 164 App. 6; Moore vs. Maxey, 152 App. 647; Schofield vs. Baldwin, 102 App. 560. ]\ralice is presumed from speaking slanderous words, actionable per se. Mitchell vs. Milholland, 106 111. 175; Nolte vs. Ilerter, 65 App. 430; XIII 111. Notes, 292, § 21. But does not arise from merely telling to another what some one has said. Hill vs. Lefller, 133 App. 266. Nor inferred where proof shows the slanderous words were used by defendant for pupose of translating them from the German to the English language at the request and for the information of an attorney in a matter of business. Zuckernian vs. Sonnenschein, 62 111. 115. Proof that words were spoken in the heat of passion will not rebut malice thus implied. Hosley vs. Brooks, 20 111. 115. Proof of publication of actionable words is prima facie proof of malice. Gilmore vs. Litzelman, 41 App. 541. The intent with which words, slanderous per se, were uttered 790 LIBEL AND SLANDER is gathered from proof of existing conditions and environment at tlie time they were spoken, the cause in dispute, the relationship of the parties, and the relationslup of the parties towards each other. Conwisher vs. Johnson, 127 App. 610; Ziu-kerman vs. Sonneusehein, 62 111. 115; Schofield vs. Baldwin, 102 App. 560. Explanation of Words : The malice which the law implies from the use of words action- able per se may be explained and rebutted by circumstances. It may also be shown that, the words were used with reference to a known act, and were so understood by those present, and that such was not, in point of law, a felony. SoUitt vs. Moore, 107 App. 479. Defendant may prove facts and circumstances connected with publication, to show absence of malice in fact, and such evidence is competent on question of exemplary damages, but not as aifect- iug compensatory damages or actual damages, and the jury should be so instructed. Kcarick vs. Wilcox, 81 111. 77. Explanation of Intent: A defendant has a right to explain the meaning of words used by him, and rebut the presumption of malice, and a witness may be asked his opinion as to intent of defendant to impute crime, if it be doubtful. McKee vs. Ingalls, 5 111. 30 ; Nelson vs. Borchenius, 52 111. 40 ; Foval vs. Hallett, 10 App. 265; Beison vs. Gossard Corset Co., 167 App. 561. ,_. ,1 Subsequent Publication: Subsequent publications giving the result of later investigations are to be regarded as continuous of the original publication, though not identical with the original, and are admissible on question of malice, but are not ground for independent recovery unless de- clared upon. Ball vs. Evening Amer. Pub. Co., 237 111. 592. Proof of a repetition by defendant of the defamatory matter complained of, is admissible to prove malice, and plaintiff may give in evidence other publications, being of like import to those declared upon, or explanatory of any ambiguity therein contained. Gaines vs. Gaines, 109 App. 226; Sheen vs. Peoria Journal Co., 53 App. 267. So proof of verbal repetition of libelous matter is admissible to prove malice. Gaines vs. Gaines, 109 App. 226. Repetition of Slander: Plaintilf may prove a repetition of the slander, even after com- mencement of suit, in aggravation of damages. Giehl vs. Winkler, 164 App. 358; Spolek-Hlasatel vs. Hoffman, 105 App. 170; Eansom vs. McCurley, 140 111. 626; Hintz vs. Graupner, 138 111. 158; Stowell vs. Beagle, 79 111. 526; Hatch vs. Potter, 7 111. 725. It is always proper to introduce repetitions of a slander or libel to prove malice and to introduce general expressions of defendant denoting malice. Gallagher vs. Singer Mach. Co., 177 App. 198. LIBEL AND SLANDER 791 Proof of Words Not Charged: As giving additional or independent right of recovery, the speak- ing of words not charged in declaration are not provable ; but proof of them is admissible if they repeat a charge of same offense or crime, as tending to show motive which induced first defamation. Repetition may show deliberate malice in utterance of original slander, in which case it is proper to be considered in aggravation of damages. Ranson vs. McCurley, 140 111. 626 ; Sclinnssenr vs. Kreilich, 92 111. 347. But not other or different words, being mere insults on the streets. Dexter vs. Harrison, 146 III. 169; Giehl vs. Winkler, 164 App. 358. JUSTIFICATION. Plea: Under a denial that defendant spoke or published the words, he cannot prove the words declared upon to be true, as their truth can only be established under a plea of justification. A plea of justification recjuires great certainty and particularity of averment. The justification must be of the very charge it is attempted to justify, and it is not permissible to set up a charge of the same general nature but distinct as to the particular subject. When the charge is specific, then the plea need only allege that the charge is true. Where, however, the charge is general, the plea must state facts which show the charge to be true. Defendant does not have the right, under general issue, to prove specific acts of misconduct, but is confined to proof of his general bad character. It is not sufficient that a plea of justification attack the character of plaintiff generally, or to aver his general misconduct, but the plea must justify the very words contained in the declaration. A plea justifying the words as true must aver the truth of the very charge. It is not sufficient to plead and prove plaintiff is guilty of a similar offense, or one more flagrant. Dowie vs. Priddle, 216 111. 553. Where a defendant denies responsibility for part of libelous article, he cannot be compelled to justify such part in order to prove the truth of the part authorized by him. When he pleads general issue, and gives notice that he Avill prove on the trial the truth of a part of the alleged libel, he may deny a part under his plea and justify as to a part under his notice. Cl'oidt vs. Wallace, 56 App. 389. In pleading justification it is only necessary for the defendant to justify as to the words alleged to have been spoken and he is not required to admit in his plea of justification the meaning, in- ducement or innuendoes attributed to the words by plaintiff, as that becomes a question of fact for the jury to determine. Under such plea intent wath which words spoken is immaterial. Siegel vs. Tbompson, 181 App. 164. — Strictness of Proof: Wliere defendant, by his pleas, has based his defense on fact that plaintiff was guilty of perjury, he will be required to prove the fact of perjury. He is bound to make out the defense which he had chosen, even though he was not obligated to impute perjury in order to justify the words spoken. Hicks vs. Eising, 24 111. 566, 792 LIBEL AND SLANDER Same strictness is required in establishing justification as in sustaining a prosecution for perjury. But if the charge was made in reference to only a particular portion of the testimony of a witness, the question of materiality is open to investigation, and if it turns out the testimony is immaterial, the words are not actionable. In such case, it may be shown under general issue that the testimony to which charge was implied was immaterial and therefore the crime was not imputed. DarlinjT vs. Ranks, 14 Til. 4G. Plea of Justification not Evidence: Where the plea of not guilty is filed, notwithstanding pleas of justification are also filed, plaintitt' must prove speaking of words alleged, and the pleas cannot be used to convict defendant, nor will he be bound to make his defense until he is proven guilty. Farhaiii vs. ChilHs, 66 111. 544. Kecord of Indictment and Acquittal : Record of indictment and acquittal incompetent on behalf of defendant. Corbley vs. Wilson, 71 111. 209; Cf. Geiinger vs. Novak, 117 App. 160. Hearsay : Under plea of justification, proof that the fact published was told defendant by another person, is not admissible for purpose of establishing truth of published article. Under the general issue, defendant may show, as tending to mitigate damages, that he published the article upon the strength of facts told him by a party in position to be cognizant thereof, and who defendant believed was telling the ti-uth. Hlasatel vs. Hoffman, 204 111. 5^2 ; Eansom vs. McCurlej, 140 111. 626 ; Tottleben vs. Blankenship, 58 App. 47. But it is no defense to show that publication was predicated upon information obtained from chief of police and others, where noth- ing further was known with respect to truth or falsity of charge. Stephens vs. Com. Xews Co., 164 App. 6. Where plaintiff charged with theft of money, circumstances which point to another person as the thief, among \^•hich was the return through the postofiice, in an anonymous way, by such other person, of such part of the stolen money as the owner was willing to take in settlement of the matter, is admissible. So, in action for charging plaintilf with having confessed to a witness that she had stolen money, unless plaintiff shows, in the first instance, that no such confession was made, defendant's state- ment that it had been made cannot be regarded as slanderous. And when defendant seeks to justify, plaintiff may prove by such person that no confession was made, before defendant had offered any evidence in reference to alleged confession. If defendant had offered evidence to show a confession of theft by plaintiff, the latter would be entitled to show that she had not so confessed, and the introduction of her negative proof before affirmative proof of defendant would be an advantage rather than an injury to him. Hintz vs. Graupner, 138 111. 158. LIBEL AND SLANDER 793 Effect of Plea: If a plea is made in good faith, and evidence is honestly in- troduced, for purpose of support, of it, such evidence should be considered by the jury in mitigation of the damages, even though it is insufficient to prove the truth of the plea, but, if on contrary, the plea and evidence under it were resorted to for purpose of further injuring plaintiff, then there is only an aggravation of damages. Thomas vs. Dunawav. .^0 Til. ?,7?,. PRIVILEGED COMMUNICATIONS. - Defined: Privileged communications are of two kinds: absolute and qualified. An absolute privilege is confined to cases where the public service or the due administration of justice require that a party speak his mind freely, and no action can be maintained there- for even though the words be false and maliciously spoken. Occa- sions where the privilege is qualified extend to a variety of com- munications made in good faith and from honest motives, upon any subject in which the party communicating has an interest or reference to which he has a duty to some one having a like interest or duty. On such occasions a speaker is exempt from liabilit}^ only so far as he speaks honestly and for some good. Young vs. Lindstrom, 115 App. 239. Wliatever is said or written in a legal proceeding, pertinent and material to the matter in controversy is privileged and no action can be maintained on it. Burdette vs. Argile, 94 App. 171; Spaids vs. Barrett, 57 111. 289; Strauss vs. Meyer, 48 111. 385; XIII 111. Notes, 295, §§ 51-54. A communication by a countiy banker to a mercantile house in the city, in respect to the pecuniary responsibility of a customer of the house, whose note has been sent to the bank for collection, is privileged. Ritchie vs. Arnold, 79 App. 406, Burden of Proof: Burden of proof is upon defendant to show that the occasion of his speaking the alleged slanderous words was privileged, that the words were spoken from a sense of duty and with an honest belief in their truth. Everett vs. Delong, 144 App. 496. Burden of proving malice is upon plaintiff where communication is privileged. Wharton vs. Wright, 30 App. 343. Presumption : Privileged communications are presumed not to be malicious. McDavitt vs. Beyer, 169 111. 475 ; Eausch vs. Anderson, 75 App. 526. Pleadings : The defense of privilege may be introduced under general issue. Everett vs. Delong, 144. App, 496, Malice : Where a communication is privileged, before party concerning whom it is made can maintain action for slander, he must show that it was made maliciously by the defendant, Ritchie vs. Arnold, 79 App, 406. 794 LIBEL AND SLANDER Defendant may show he believed in good faith that words were pertinent and material, thus rebutting presumption of malice. Buidette V6. Argile, 94 App. 171. DAMAGES. Presumption : Generally speaking, every defamation is presumed by the law to be malicious. Words imputing a crime are actionable without proof of special damage. McDavitt vs. Boyer, 169 111. 475. Truth of Charge: Is inadmissible in mitigation of damages, or for any other pur- pose, under general issue. Sheahan vs. Collins, 20 111. 326; Owen vs. MeKean, 14 111. 459; Thomas vs. Dunaway, 30 111. 373; XIII 111. Notes, 300, § 120. When defendant does not .justify, he may mitigate damages in two ways only — by- showing the general bad character of plaintiff and by showing any circumstances which tend to disprove malice, but do not tend to prove the truth of the charge. This qualification excludes not only such circumstances as the law recognizes as competent evidence tending to prove the truth of the charge, but all circumstances which, in the popular mind, tend to cast suspicion of guilt upon plaintiff. Storey vs. Early, 86 111. 461; Sheahan vs. Collins, 20 111. 326; Eegnier vs. Cabot, 7 111. 34. Defendant, by plea of general issue, virtually admits the false- hood of his statements, but if it is proved that he did publish them, he may then, on that issue, show any circumstances in mitigation which tend to disprove malice, but do not tend to prove the truth of the charge. Thomas vs. Dunaway, 30 111. 373. A plea of not guilty admits that the words alleged were not true, but denies that they were spoken. Eeeves vs. Roth, 179 App. 95. So, testimony to prove that the slanderous words had been used by defendant in reference to a certain bill in chancery, which defendant at time supposed and believed plaintiff' had sworn to, though in fact it was sworn to by another person, and that the allegations in said bill were false, is inadmissible, even in miti- gation of damages. Under the general issue of slander, defendant will not l)e allowed to prove the truth of the charge in mitigation. Owens vs. McKean, 14 111. 459. The defendant cannot be permitted to show, under general issue, and upon a claim of mitigating damages, facts which tend to cast suspicion of plaintiff's guilt of the very charges which defendant has declined to undertake to prove. Com. News Co. vs. Beard, 116 App. 501. Character and Reputation of Plaintiff: — Presumption: Plaintiff's character is presumed to be good until attacked, and he is not required to call witnesses to support it until assailed; and a plea of justification, and evidence of par- ticular acts of immorality under it, is not such an attack on general character of plaintiff as requires him to offer evidence in support of his general character. Stowell vs. Beagle, 79 111. 524. LIBEL AND SLANDER 795 Until the character of plaintiff is attacked, he has no right to introduce evidence of his good character. But when defendant files a plea of justification, and attempts to establish its truth, that is such an attack upon plaintiff's good character as authorizes him to introduce evidence of his good character. Harbison vs. Shook, 41 111. 141. — Admissibility of Evidence: General bad reputation of plaint- iff prior to utterance of slanderous words is competent in mitiga- tion of damages. Corning vs. Dolmeier, 123 App. 188; Eanson vs. McCurlev, 140 III. 626; Sheaiiau vs. Collins, 20 111. 326 ; Storey vs. Early, 86 111. 461. Particular acts of misconduct cannot be proven under the general issue; defendant is confined to proof of general character. Dowie vs. Priddle, 216 111. 553 ; Ranson vs. McCurlev, 140 111. 626. There is a broad distinction between general character sustained by a person amongst those who know him, and a charge of a par- ticular act of immorality made by a single or few individuals; and where there is evidence tending to prove particular acts of unchastity on part of plaintiff, it is proper to instruct jury that there is no evidence before them as to general character of plain- tiff as to chastity or w^ant of it. Stowell vs. Beagle, 79 111. 524. General evidence is admissible, although defendant has justified that the imputation is true, for if the justification should fail, the question as to quantum of damages would still remain. Young vs. Bennett, 5 111. 43. But witnesses should not be permitted to give in details all reports in circulation to his prejudice. Sheahan vs. Collins, 20 111. 326. — Rumor: Not competent under general issue, in mitigation of damages. Young vs. Bennett, 5 111. 43; OAven vs. McKeau, 14 111. 459. Where alleged slander charges that plaintiff set his house on fire to get the insurance, and where general issue only is pleaded, defendant cannot show that after the burning of the house and before speaking the words, plaintiff was generally suspected of setting his house afire, or that lie gambled or kept a gambling house. Lelming vs. Hewett, 45 111. 23; Young vs. Bennett, 5 111. 43. — Competency of Witnesses: Same rule obtains as where the character of a witness is sought to be impeached. Witness must be able to state what is generally said of the person by those among whom he dwells, or with whom he is chiefly conversant ; it is not sufficient for him to state what he has heard others say, for they may be few in number. Regnier vs. Cabot, 7 111. 34. Provocation : Defendant may prove prior publications by plaintiff, of a pro- voking nature, in mitigation. Thomas vs. Dunaway, 30 111. 373; Young vs. Gilbert, 93 111. 595; Contra, Danville Press Co. vs. Harrison, 99 App. 244. Anger : The anger or passion of the defendant at time of publication of slanderous words, is no justification or mitigation of damages. 796 LIFE TABLES unless the passion was provoked by plaintiff, and even then, it can only be shown in mitigation of damages. i'lagge vs. Eoberts, 07 111. 485. Retraction : A retraction of the slander, made so immediately as to become a part of the res gestae, and free from all suspicion that it was made by defendant more for his own protection than for repa- ration to the victim of his calumny, is admissible in evidence in mitigation of damages. Owen vs. McKean, 14 111. 409. Pecuniary Circumstances : See Pecuniary Circumstances. CRIMINAL LIBEL. Truth of Charge: Truth may be shown when published with good motives and for justifiable ends. It is an affirmative defense and must be proven by defendant. People vs. Straueh, 247 111. 220. And must be confined to the precise charge made. People vs. Fuller, 238 111. 116. Opinions as to truth of charge are inadmissible. People vs. Laiidcs, 151 App. 181. Explanation of Intent: Explanation of intention by defendant is inadmissible. The meaning must be determined bv the article itself. People vs. Straiich, 247 ill. 220. Articles Published by Prosecuting Witness: Articles published by prosecuting witness are inadmissible. People vs. Straueh, 247 111. 220. LICENSE See Negative in Issue, Brokers, Physicians and Surgeons, Penalties. LIFE TABLES Judicial Notice: Courts take judicial notice of standard tables. (Wigglesworth, Northampton and Carlisle.) That they are standard tables need not be proven. Marshall vs. Marshall, 252 111. 568 ; Winn vs. C. C- C. & St. L. Ey. Co. 239 111. 132; Henderson vs. Ilarness, 184 111. 520. But not of American Experience Tables of Mortality. Benjamin vs. Bankers Union, 173 App. 620. Admissibility: — Denver: Tables showing the probabilities of life by which dower rights can be computed are recognized by the courts as a proper means to prove such value. McHenry vs. Yokuni, 27 111. 160. LIMITATIONS 797 The value of an inchoate right of dower cannot Ije approximately ascertained by the use of mortality tables. Cowan vs Kane, 211 111. 572. While life tal)les may be resorted to, they can afford bnt a mere expectancy of the particular life. They are doubtless correct in the aggregate, but cannot be when applied to individual cases. Hartman vs. Hartman, 59 111. 103; Bonner vs. Peterson, 44 111. 253. . — Life Estate: A standard life table is admissible in evidence and entitled to be considered with other evidence in determining the value of a life estate. Knifjlit vs. Collins, 227 111. 348; Henderson vs. Harness, 184 111. 520. The standard and recognized mortality or life tables, together with the computations of experts based on them, are competent evidence, in connection with other evidence, to show the expectancy of life and the present value of a life estate, for the purpose of estimating damages to a remainderman from the change of grade of a street, as well before a jury in an action at law as in equity. City of Joliet vs. Blower, 155 111. 414. — Negligence: The probable duration of the life lost is an element to be considered in action for damages for negligently causing death, and as bearing upon such question standard life tables are admissible. Calvert vs. Sprinfreld Li^ht Co., 231 111. 290; Owens vs. I. C. R. E, Co., 163 App. 629;'" Presley vs. Kinlook Tel. Co., 158 App. 220; Spring- field E. & P. Co. vs. Calvert, 134 App. 285; XII 111. Notes, 511, §285. LIMITATIONS See Reformation of Instruments, E.jectment, Adverse Possession, Payment. Pleading- : The defense of Statute of Limitations in an action at law can only be availed of by plea. Hongland vs. Avery Coal Co., 246 111. 609; Peterson vs. Manhattan Ins. Co., 244 111., 329 ; Lesher vs. U. S. Fidelity Co., 239 111. 502 ; Gunton vs. Hughes, 181 111. 132; Wilson vs. King, 83 111. 232; XIII 111. Notes, 342, § 108. Burden of Proof: — ■ 7)1 General: Under plea of Statute of Limitations, tra- versed, the burden of proof is upon defendant. Schell vs. Weaver, 225 111. 159; Bartelott vs. Int. Bank, 119 111. 259; Moffett vs. Farwell, 123 App. 528; Haynes vs. Anierine, 48 App. 570. And this is true on objection made by administrator to claim against estate. Schell vs. Weaver, 225 111. 159. The burden of proof is upon claimant first, to show nature and amount of his claim, by a preponderance of the evidence, then the Statute of Limitations having been applied, and evidence showing that if any indebtedness existed, it was barred by such statute, the burden is also on claimant to prove new promise within a period of limitation next before commencement of suit. Edwards vs. Harness, 87 App. 471. 798 LIMITATIONS — Disalility: A party relying upon a disability, to avoid the operation of the Statute of Limitations, must prove it. Fritz vs. Joiner, 54 111. 101; Wacheter vs. Albee, 80 111. 47; McClintic vs. Layman, 12 App. 356. So where a bill is filed for a partnership accounting more than five years after the firm has been dissolved, if the defendant has been absent from the state portions of that time, the burden of proof is upon complainant to overcome the presumption of a bar created by a lapse of time, by showing that taking out the time of his absence, five years are not left. Pierce vs. McClellan, 93 111. 245. — New Promise : The burden of proving a new promise is upon the creditor seeking to enforce his claim. McGrew vs. Forsyth, 80 111. 596; Carroll vs. Forsyth, 69 111. 127. Admissibility of Evidence : — Declarations and Admissions: Declarations of a payee of partial payment are inadmissible. Wellman vs. Miner, 179 111. 326. Admissions of indebtedness to third persons or strangers are incompetent for purpose of reviving a debt barred by the statute. Collier vs. Patterson, 137 111. 403; Waehter vs. Albee, SO 111. 47; Albers Cora. Co. vs. Sessel, 87 App. 378; McGrew vs. Forsyth, 80 111. 596. However, if a debtor, after being sued, sends for a third person and directs him to tell the plaintiff that he will pay him every cent he owes him, a new promise is not made to a stranger, as the debtor makes the third party his agent to communicate his in- formation to the plaintiff and same is admissible. O 'Hara vs. Murphy, 196 111. 599. In case of joint debtors, an admission of one, made without the knowledge, assent or subsequent ratification of his co-debtor, after the statutory bar is complete, is not admissible against the other, for the purpose of proving a new promise. Kellenbaeh vs. Dickinson, 100 111. 427; Boynton vs. Spafford, 62 111. 115. The admission of one partner, made after dissolution, as to debt contracted before, is inadmissible to affect running of statute as to co-partner. Green vs. Baird, 61 App. 72. New promise of husband or wife will not revive as to both in joint debt. Lewis vs. Lynch, 61 App. 476. — Writings : When a contract is in writing, a new promise necessary to remove the bar of the statute must be evidenced in writing. Boone vs. Colehour, 165 111. 305, Admissions in a will of deceased debtor are admissible to remove bar of statute as to simple contract obligations. Miller vs. Simons, 71 App. 369. A final balance of account in the ledger of the debtor, stating a balance due the creditor is evidence of a new promise to remove the bar of the statute. Coulson vs. Hartz, 47 App. 20. It is not enough that the evidence by which the cause of action LIMITATIONS 799 is supported is in writing, so where the action is not based on checks nor relied upon as the contract between the parties, such checks are not admissible to prove indebtedness sued upon. Phillips vs. Pitcher, 80 App. 219. Nor are receipts for goods of common carrier. •■■ Penn. Go. vs. C. M. & St. P. R. R. Co., 144 111. 197 j I. C. E. E. Co. vs. Miller, 32 App. 259. Nor is an implied contract requiring parol evidence to connect the beneficiary with the certificate in a benefit association admissible. Conductors Ben. Assn. vs. Loomis, 142 111. 560. — Endorsements: After a note is barred by the statute, the endorsement of a payment thereon by the payee is incompetent as evidence. Wellman vs. Miner, 179 111. 326. Indorsement before bar held incompetent. Lowery vs. Gear, 32 111. 383. Limitations begin to run on a demand promissory note from its date. Ada vs. Ade, 181 App. 577. Weight and SuflSciency: — Netv Promise: To remove the bar of Statute of Limitations, it is incumbent on the plaintiff to prove an express promise to pay the money, or a conditional promise with a performance of the conditions, or an unqualified admission that the debt is due and unpaid, nothing being said or done at the time rebutting the presumption of a promise to pay. It must be of such a character as to clearly show a recognition of the debt and an intention to pay it. Boone vs. Colehonr, 165 111. 305. A promise by a debtor to creditor to pay him "every cent he owed him" identifies the debt with sufficient certainty. O 'Kara vs. Murphy, 196 111. 599. A judgment is evidence of debt, and a parol promise to pay does not arrest the running of statute or take it out of statute. Ludwig vs. Huck, 45 App. 651. A new promise to pay is not established by proof of defendant indorsing to plaintiff of a stranger's note, for accommodation of plaintiff and not as payment upon his note. Pease vs. Catlin, 1 App. 88. Payment by one to a person in her employ with promise to pay the rest when she was through with her property in ' ' this world, ' ' is sufficient to remove the bar of the statute. Neish vs. Gannon, 198 111. 219. New promise is sufficient though amount is not fixed. Neish vs. Gannon, 198 111. 219; O 'Hara vs. Murphy, 196 111. 599. A proposition by way of settlement or compromise of a claim is not sufficient to establish a new promise in absence of proof show- ing same to have been accepted. Walker vs. Freeman, 94 App. 357. It is not enough that the debtor admitted account to be correct, but he must have gone further and admitted that the debt was still due and had never been paid. Quayle vs. Guild, 91 111. 378. An admission by debtor that if there was anything found to be due he would pay, is insufficient. Hayward vs. Gunn, 4 App. 161. 800 LIMITATIONS A new promise is not shown by words "will settle this thing" or assurance of intention to adjust. Ennis vs. Pullman Car Co., 165 111. 161. Indorsement of payment on note in handwriting of payee, when maker was not present, must be shown by payee to have been made in fact by maker or some one authorized by him. Waughop vs. Bartlett, 165 111. 1^4. An indorsement of a partial payment on a note made by the holder without the privity of the maker is not, of itself, and un- corroborated, sufficient evidence of payment to repel a defense created by the Statute of Limitations. Declarations of a party, in his own favor, can never be received in evidence. If a payee's declarations that he received a partial payment are not admissible in evidence, equally so is his written acknowledgment of such payment. Wellman vs. Miner, 179 111. 326; Simmons vs. Nelson, 48 App. 520; Treadway vs. Treadway, 5 App. 478. Where the items of account are read to a party, and he admits the correctness of each item, and of the whole account, but as to certain items, stated he thought the whole or a part of them had been paid by his son, and that he thought the account was correct, and that he would see his creditor and settle with him, such admis- sions do not show a new promise within five years. Ayers vs. Richards, 12 111. 146. — Part Payment: A mere payment by a debtor owing an account, of a sum not more than sufficient to cover recent items, is not sufficient to remove the bar of the statute from items of older date, without evidence of the debtor's intention to apply such payment for that purpose. In ordinary cases of mutual dealing the obligation is to pay the balance of the general account and it must appear that each new item is paid by the defendant to lessen such balance, otherwise it is not equivalent to a new promise to pay what remains. Miller vs. Cinnemon, 168 111. 447. Proof of part payment on account of many items not sufficient to revive obligation without proof of application by defendant. Mertaugh vs. Murphy, 30 App. 59. A payment on a note made with intention of not recognizing or affirming the indebtedness will not preclude Statute of Limita- tions from being a bar to an action. Kuhn vs. Kuhn, 171 App. 298. An unauthorized payment by widow on mortgage indebtedness upon property in which she has but a homestead and dower interest, will not operate to remove the bar of statute from indebtedness as against the heirs who own the fee. Aetna Ins. Co. vs. McNeely, 166 111. 540. So a payment made by principal obligor, procured by surety, is not evidence of part payment as would take note without statute as to such surety. Lash vs. Bozarth, 78 App. 196; Davis vs. Mann, 43 App. 301. Payment of taxes for seven successive years is not established where part of tax receipts relied upon contain descriptions too uncertain to identify payments as having been made upon the LOST INSTRUMENTS 801 particular property in dispute, and tJiere is no oral evidence con- necting them therewith. Bell vs. Neiderer, 169 111. 54. — Mutual Accounts: "IMutual account" means something more than charges on one side and credits of payment on the other. Such accounts are made up of matters of set-off. There must be a mutual credit founded on a subsisting debt on the other side, or an express or implied agreement for a set-off of mutual debts. Miller vs. Cinnemon, 168 111. 447. In an action on a book account, which appears upon its face to be based on mutual accounts between plaintiff on the one side, and defendant on the other, .if some of the items are not barred by limitation, the whole amount due upon the account is recover- able. Carpenter vs. Plagge, 192 111. 82; O'Brien vs. Sexton, 140 111. 517. Services performed by plaintiff for cause accrued not mutual account. Harris vs. Jackson County, 9 App. 272. It is"a question of fact for the jury whether or not there were any credits given by debtors consent on the account, and to what part of the account the credit applied; and also, whether debtor promised creditor to pay him the account, and to what part of such account, if such promise were made, it applied. Boyd vs. Earnst, 36 App. 583. In order to save items of an account, which are behind the period fixed by the Statute of Limitations, it must be made to appear that the account is one of mutual dealings between the parties, and a promissory note given by one party to the other does not show mutual dealings, and is inadmissible to show contin- uous dealings. Seacord vs. Matthieson, 56 App. 439. LIMITING WITNESSES See Cumulative Evidence, Order of Proof, Expert and Opinion. LOST INSTRUMENTS See Destruction and Suppression, Best and Secondary. SECONDARY EVIDENCE. In General: Where the original written instrument has been lost or destroyed, and the loss or destruction was not at the instance or with the consent of either of the parties thereto, secondary evidence is admissible to prove the contents. Concord House Co. vs. O'Brien, 228 111. 360; Mayfield vs. Turner, 180 111. 332. To render secondary evidence admissible, proof of loss or destruc- tion of original must be made. Dowden vs. Wilson, 71 111. 485; Cook vs. Hunt, 24 111. 536; Sehnapp vs. Pierce, 24 III. 157; Whitehall vs. Smith, 24 111. 166. Ev.— 51 802 LOST INSTRUMENTS Existence and loss of original must be shown before admission of copy. Palmer vs. Logan, 4 111. 56. Preliminary Proof: The preliminaiy proof, laying tlie foundation for the introduc- tion of secondary evidence of contents of lost instrument, is ad- dressed to the court, and the court determines whether sufficient has been shown to permit secondary evidence to go to the jury and the recovery is had, if at all, upon the instrument thus proved. Whether such instrument was wilfully or accidentally destroyed is immaterial in laving the foundation for secondary proof. Grimes vs. Hilliary, 150 111. 141. • ' ' The party is required to give some evidence that such a paper once existed, and that a houa fide, diligent search has been un- successfully made. If it belonged to the custody of certain per- sons, or is proved or may be presumed to have been in their posses- sion, they must, in general, be called and sworn to account for it, if they are \vithin the reach of the process of the court. If the search was made by a third person, he must be called to testify respecting it. The affidavit of a party, on the question of loss of a paper, may be admitted to exclude any presumption that he may have it in his possession ; but those who may be admitted as wit- nesses must testify in the usual form, in order that the advantage of cross examination may be preserved." Becker vs. Quigg, 54 111. 390. Affidavit of stranger to the action is incompetent for purpose of laying foundation for introduction of secondary evidence. McFarland vs. Dey, 69 111. 419; Cf. Pardee vs. Lendley, 31 111. 174. Preliminary proof must show that original was not intentionally disposed of for purpose of introducing copy thereof in place of original. Bauer vs. Glos, 244 111. 627; Scott vs. Bassett, 194 111. 602. And rebut every inference of a fraudulent design. Blake vs. Fash, 44 111. 302; Palmer vs. Goldsmith, 15 App. 544, Where a document is conceded by the party in whose hands it was last heard from to have been lost or destroyed, notice to him to produce same is unnecessary, as he is estopped by his admission from setting up such a possession of the papers as would make a notice to produce of use. Stadler Brew. Co. vs. Weadlev, 99 App. 161. Where foundation for secondaiy evidence of a deed is by oral testimony instead of by affidavit, opi)osing counsel may test the statements of the witnesses by proper cross examination. Scott vs. Bassett, 194 III 602. Where affidavit for introduction of certified copy of deed is positive in its terms, and meets requirements of statute, opposite party is not entitled to cross examine affiant as to truth of affidavit. Glos vs. Garrett, 219 111. 208. Where party who has destroyed original document testifies in explanation of his conduct that he did so upon advice and opinions of others, and upon cross examination he names the persons who have so advised hira, it is proper to call such witnesses so named to contradict him in this respect. Butler vs. Cornell, 148 111. 276. LOST INSTRUMENTS 803 — Due Search: While it is not sufficient, in laying foundation for proving contents of lost instrument by parol, to merely prove as a conclusion that a diligent search has been made, neither is it required to negative every remote possibility that may exist. Mayfield vs. Turner, 180 111. 332. It must appear that all search reasonable and practicable has been made to tind the paper alleged to have been lost. Holbrook vs. Trustees, 28 111. 187. In order to let in secondary evidence of contents of a written instrument, the person to whose possession it was last traced, must be produced unless shown to be impossible, in which case search among his papers must be proven, if that can be done. In all events, search must be made for the paper with the utmost good faith, and be as thorough and diligent as if the rule were that all benefit of the paper would be lost unless it be found. Prussing vs. Jackson, 208 111. 85; Mullanphv Sav. Bank vs. Schott, 135 111. 655 ; Sturgis vs. Hart, 45 111. 103 ; Cook vs. Hunt, 24 111. 536. Rule applies in criminal cases. Sullivan vs. People, 108 App. 341. Yet where the evidence shows the instrument to have been des- troyed, no further proof is required in order to admit secondary evidence. i?hode vs. ]\rcLean, 101 111. 467. "Where instrument had particular place of deposit, such place must be searched. Cook vs. Hunt, 24 111. 356; Mariner vs. Saunders, 10 111. 113. Presumption is that a paper, public in its nature, will be found in the possession of the incumbent of the office, and search should be made at the place of keeping. Stow vs. People, 25 Til. 81. — Proof of Contents: To prove the contents of a written instru- ment, the vague recollection of witnesses are not sufficient to supply its place. The substance of the contract should be proven satisfactorily ; and if that cannot be done, the party is in the con- dition of every other suitor in court who has no witness to support his claim. The party showing the loss of the original may read a counterpart; if there is no counterpart, an examined copy, or if there is not an examined copy, he may give parol evidence of its contents. Winter vs. Dibble, 251 111. 200; Eankin vs. Crow, 19 111. 626. When a lost instrument is relied upon to modify another con- tract, clear and convincing proof is required. Miller vs. Mandel, 259 111. 214. When the proof is made out by parol, witness should have seen and read the paper, and be able to speak pointedly and clearly as to the tenor and contents. Eankin vs. Crow, 19 111. 626 ; Osborne vs. Rich, 53 App. 661. It is not necessary to prove contents of lost instrument literally. Substance must be proven. Osborne vs. Eich, 53 App. 661. So where original checks have been destroyed while in the hands of party to the suit, and he paid no attention to order to produce them slight evidence of the contents of the checks will suffice, Eudgear vs. U. S. Leather Co., 108 App. 227. 804 LOST INSTRUMENTS "Where one deliberately destroys or purposely induces another to destroy a written instrument of any kind, and the contents of such instrument subsequently become a matter of judicial inquiry between the destroyer and an innocent party, the latter will not be required to make strict proof of the contents of such instrument in order to establish a right founded thereon. Anderson vs. Irwin, 101 111. 411; Tanton vs. Keller, 167 111. 129; Kud- gear vs. U. S. L. Co., 108 App. 227. Sworn copy is good secondary evidence of contents of lost in- strument. Golden vs. Bressler, 105 111. 419. A certified copy of the record of an unacknowledged instrument does not prove the contents of the instrument where there is no proof of the execution of such an instrument and connecting the instrument executed with the one recorded. Winter vs. Dibble, 251 111. 200. — Proof of Execution: The proof of the execution of the in- strument must be as strict as if the instrument itself were in court. Dagley vs. Black, 197 111. 53; Mariner vs. Saunders, 10 111. 113. Parol evidence of contents of deed is not admissible until execu- tion has been proven. Owen vs. Thomas, 33 111. 320. CONCERNING PARTICULAR INSTRUMENTS. Affidavits : Contents of lost affidavit for writ in action on replevin bond can- not be proven by showing custom of clerk to copy certain state- ments contained in replevin affidavits into the writs. Franks vs. Matson, 211 111. 338. Bonds: The facts that a bond for conveyance of land has been given up to obligor, may be proven by parol, and when it is shown, there is a very strong possibility, if not actual presumption of law, that the bond was destroyed by the obligor. Snapp vs. Pierce, 24 111. 156. Certificates : "Certificate of building superintendent having been lost, it is proper to prove its contents. The fact that it is lost does not change the rights or relations of parties, nor in any way affect the validity of the certificate." Concord House Co. vs. O'Brien, 228 111. 360. Chattel Mortgages : To admit secondary evidence of contents of chattel mortgage in suit between mortgagee and tbird person, it is sufficient to prove execution and surrender of it to mortgagor. Huls vs. Kimball, 52 111. 391. Checks : Copies of checks are admissible against defendant in creditor's bill proceeding, where originals are destro^'ed by fire while in defendant's possession, he having ignored notice to produce them before their destruction and where it is not claimed such copies were incorrect. Eudgear vs. IT. S. Leather Co., 206 111. 74. Secondary evidence of unendorsed delivered check is admissible upon showing loss of original. Petrue vs. McLaughlin, 99 App. 463. LOST INSTRUMENTS 805 Contracts : The contents of a written instrument cannot be proven until the absence or loss of the writing has been fully and satisfactorily- shown. Cook vs. Hunt, 24 111. 5.36. Where a contract was left with a party for safe keeping, who swears that he has made diligent search among his papers and cannot find it, its contents may be proven. Doyle vs. Wiley, 15 111. 576. Proof that original was in hands of an agent who gave it to a messenger to deliver to proper custodian, and that office of cus- todian was destroyed by fire, is not sufficient preliminary proof, the fact that the messenger delivered it must be shown. Such fact cannot be presumed. C. & N. W. By. Co. vs. IngersoU, 65 111. 399. Court Records : Contents of files of clerk cannot be proven by showing custom of clerk to copy certain statements contained in such instrument as is lost into the writs, there being no proof that he did so in the particular case. Franks vs. Matson, 21 1 111. 338. If any portion of the record of a cause is lost, the court may restore it on application of a party interested ; but a party opposed in interest should have reasonable notice, and an opportunity to ascertain whether the loss is to be supplied truly. Harlev vs. Harlev, 67 Ajip. 138. On petition to restore lost and destroyed files and records, of proceeding to set aside a decree in partition, proof of contents of files and records must be made. Llewellin vs. Dinge, 165 111. 26. Where, on former proceeding to restore files and records, copies of lost files and records were permitted to be filed, but never admitted by defendant or decided by court to have been true copies, copies of such copies are not sufficient to prove contents of lost files and records in subsequent like suit. Llewellin vs. Dinge, 165 111. 26. Nor are entries in a book kept by solicitor in proceeding in which files were destroyed, not shown to have been contemporaneous with his employment, as part of the transaction, competent to prove contents of the files and records. Llewellin vs. Dinge, 165 111. 26. And where petition avers that exhibits are substantial copies and defendants answering disclaim knowledge of truth of such averment, and neither affirm nor deny it, the verified petition does not constitute sufficient proof. Llewellin vs. Dinge, 165 111. 26. Deeds: — Affidavits: Cannot be made by stranger to the action. Becker vs. Qnigg, 54 111. 319. Can only be made bv party to suit or his agent or attorney, Bauer vs. Glos, 244 111. 627. Except where deed lost made to antecedent grantee, preliminary proof may be made bv such grantee. Pardee vs. Lindley, 31 111. 174. 806 LOST INSTRUMENTS The affidavit which witness is required by statute to make is merely' to dispense with production of original instrument and to make the record competent evidence. Scott vs. Bassett, 194 111. 602. Must state that original instnnnent was not intentionally destroyed or in any manner disposed of for purj^ose of introduc- ing copies thereof in place of original. Bauer vs. Glos, 244 111. 627. Where affidavit states that original deed was not nor ever had been in the possession of party offering copy, or in his power or control, or that of his agent or attorney, this was held to be a com- pliance Avith the statute and authorized the receiving a certified copy in evidence, Deininger vs. McConnell, 41 111. 227. An affidavit for introducing secondary evidence of deeds is not sufficient which merely shows that the deeds are not nor have been in the possession, custody or control of affiant ; that affiant has iiade inquiry of the grantees but has not received any of the ieeds; that he does not believe such deeds have been lost or destroyed or disposed of for the purpose of introducing copies. Scott vs. Bassett, 186 111. 98. An affidavit which recites that affiant is agent and attorney for complainant, and that complainant desires to use certain deeds, stating that the originals of such deeds are acknowledged and entitled to be recorded ; that such originals are lost and not in the power of complainant to produce, and that they were not intentionally destroyed or disposed of, is sufficient to entitle copies to be admitted. Ellison vs. Glos, 248 111. 275. It is not necessary that the party wishing to use the certified copy of a deed, duly acknowledged and recorded, should himself make affidavit of the loss of the original or tliat it -was not in his power. Any evidence which satisfies the mind of the court that the deed is not in the possession or j^ower of the party is all that is required. Newsum vs. Luster, 1?, 111. 175. A party is not disqualified to make an affidavit by reason of the fact that he could not be called as witness to testify generally in the case. Scott vs. Bassett, 194 111. 602. — Copies : A correct copy of a deed is admissible to prove the contents when, after due search, the original cannot be found. Gillespie vs. Gillespie, 159 111. 84. Before a party can introduce a copy of a deed, he must lay the proper foundation and then he must introduce a copy from the record book, not the book itself. Hanson vs. Armstrong, 22 111. 442. — Ahstracfs of Title. Abstracts of title are admissible, where it is sliown that every eff^ort to find the deed would be unavailing, or that it was not within the power of the party to produce same. Richley vs. Farrell, 69 111. 264. — Due SeareJi: Where the existence of an original deed is clearly shown by one witness, and its loss is shown by two witnesses, LOST INSTRUMENTS 807 who prove that diligent search has been made for it among the papers and files of a bank, where they had every reason to suppose it would be found, and where it naturally would be left, and that they were unable to find it or produce it, this will be sufficient to admit secondary evidence of its contents. Golden vs. Bressler, 105 111. 419. It should 1)6 clearly made to appear that the search for the lost deed has been diligent and thorough in all places where it may be reasonably supposed it had been or might be; the statement of a witness that a diligent search had been made to find it is not sufficient. And if the papers of a party owning or holding such a deed as is supposed to have been lost have ever been in the custody of any other person, such person should be produced to account for the loss. A party should be required to make at least the same effort that it is expected he would make if he were to lose the benefit of the evidence if the instrument were not found. Eankiu vs. Crow, 19 111. 626. It is not enough that deed is not found in usual place of deposit. Search must have been made in every place where there is reason- able probability that it mav be found. Eankiu vs. Crow, 19 111. 626. It is error to admit secondary evidence of contents of deed unless proof is first made of such a search for original as will raise a presumption of its loss or destruction. Stowe vs. People, 25 111. 81. "Wliere record of deed was destroyed by fire, but proof showed that original had been placed in hands of a third party in another state, some years before, and that party claiming under it had applied to such custodian for it, but was informed that it was lost, but no search was made for it, sufficient foundation was not laid for introduction of evidence of contents, either by parol or by proof of contents or original abstract of title. Wing vs. Sherrer, 77 111. 200. Where witness testified he was solicitor of grantee, and to execu- tion, acknowledgment and delivery of a master's deed; that he, the witness, placed it on his desk in the court room, with another paper, and both were lost ; that he had never been able to find them afterwards ; that he had made diligent search for them and that the deed had never been recorded, the search was sufficient to admit secondary evidence of contents of deed, and not necessary to show a search" in the recorder's office, or that incpiiries had been made of grantee. Dugger vs. Oglesby, 99 111. 405. A party may not state in general terms that it is not in his power to produce a deed; but he must give such detailed circum- stances in relation to the search for it and the probabilities of its loss, as will convince the court of its actual loss, or inability of party to produce it. Booth vs. Cook, 20 111. IW. Parol proof of contents of lost deed must be so clear and positive as to leave no reasonal^le doubt or suspicion as to material 808 LOST INSTRUMENTS parts thereof; and what will be regarded as material parts of a deed will depend upon the character of the controversy. Bennett vs. Waller, 23 111. 97. Where the existence of a lost unrecorded deed is clearly shown, and proof of diligent search is made therefor, parol evidence of its contents may be made by witness familiar with the same. Sweuringen vs. Guliek, 67 111. 208. When parol proof of existence and contents of a lost deed is the only evidence offered, witness must have seen and read the deed and be able to state its contents, whether it conveyed a fee simple, a life estate or an estate for years, and also whether it was in fact executed by the grantor. Dagley vs. Black, 197 111. 53. The recollection of witnesses as to contents of lost or destroyed deeds is clearly competent, and their recollection may be refreshed by reference to notes taken by them, and known to be correct. Bush vs. Stanley, 122 111. 406. After the fact of the execution and loss of a deed is clearly shown, the substance of the contents of the deed may be proven by parol evidence. All that the witnesses in such case can be expected to remember, is that a deed was made, to whom and about what time, for what consideration, whether warranty or quit-claim, and for what property. To require more would be to render such proof almost impracticable. Harrell vs. Enterprise Sav. Bank, 183 111. 538; Perry vs. Burton, 111 111. 138. — Index Books: Where a record of deed is destroyed, the index book, in which the deed is described, and its record in the proper book certified, is good evidence of the fact that the deed was recorded. Alvis vs. Morrison, 63 111. 181. — Master's Deed: When taken in connection with the record of a master's sale and his certificate of purchase, the courts will not require so full proof of the contents of a master's deed when it is lost as otherwise might be. Bugger vs. Oglesby, 99 111. 405. — Execution: Secondary evidence of the execution and con- tents of a deed is authorized by testimony that the deed had never been in the possession of the party claiming under it, that it was not of record in the county, and that the books in which it would probably have been recorded were destroyed by fire. 'Harrell vs. Bank, 183 111. 538. A deed and record thereof having been destroyed, court may receive all such evidence as would tend to establish execution and contents. Tucker vs. Shaw, 158 111. 326. Secondary evidence of contents of an unrecorded deed may be received upon proof that the deed was executed and delivered to the grantee who subsequently handed it, with other papers, to grantor to keep for him in his safe, and that after latter 's death the deed could not be found though diligent search was made among the papers of deceased. Hawley vs. Hawley, 187 111. 351. LOST INSTRUMENTS 809 "Where witness does not state by whom the deed was signed as grantor, whether signed in person or by attorneys, or whether it was in handwriting of grantors, or even that he knew tlieir sig- natures, the execution is not sufficiently proven. And, opinion of the witness that the deed purportd to convey a fee simple title is insufficient to dispense with otlier evidence of its validity. Owen vs. Thomas, 33 111. 320; Mariner vs. Saunders, 10 111. 113. — Notice to Produce: Where opposite party has not the deed in his possession, no notice to him. to produce same is necessary, to admit j^arol evidence of its contents. Proof of loss of deed is sufficient. ., ... Taylor vs. Mclrvin, 94 111. 488. Depositions : Where the deposition of a witness residing in another state has been lost from the files without fault of the parties, leave may be given by the court, upon satisfactory showing, to file a copy of the deposition and such copy may be admitted in evidence. Gage vs. Eddy, 167 111. 102. (Distinguish Aulger vs. Smith, 34 111. 534, and Stout vs. Cook, 57 111. 386, which hold that witness being alive, proper course is to retake deposition, and that contents of lost deposition could not be proved except where witness was deceased. In latter case, wit- ness was within jurisdiction of court, and in former, witness was deceased.) Where depositions were destroyed, and in second suit, an agree- ment was made to admit the transcript of the record of the suit filed in the supreme court, as evidence, which, on application was not allowed to be withdrawn, copies of the depositions, duly cer- tified by the clerk of the supreme court were competent and proper to be considered. Dowden vs. Wilson, 108 111. 257. Executions : AVhere an execution is lost, the execution docket kept by the clerk, and the entries therein of the date and amount of the execu- tion, where the clerk testifies to the regularity of the docket, are admissible as evidence of the facts therein stated. Dimlap vs. Berry, 5 111. 327; Becker vs. Quigg, 54 111. 319. Justice's Docket: Contents of may be proven by parol testimony. People vs. Cotton, 250 111. 338. Letters : Where a letter is destroyed, a copy is the best evidence and notice to produce a copy should be required before testimony of the contents is permitted. Pro. League vs. Langsdorf, 126 App 572; Wright vs Eaftree, 181 111. 464; Young vs. People. 221 111. 51. To admit parol evidence of the contents of a letter, the pre-t liminary proof must show that it is either lost or destroyed, or not in the power of the party to produce it. Hazen vs. Pierson, 83 111. 241; Hoblit vs. Houser, 171 App. 19. (See Letters.) 810 LOST INSTRUMENTS Memoranda: A copy of a lost niemoranduin proved to be correct, is admissible in evidence in connection with testimony of witness making it. Ryan vs. Miller, 153 111. 138. Notes : Where a note with its endorsements of payments is used on trial before a justice, and on appeal is not found, in order to admit secondaiy evidence of its contents, the testimony of the justice and plaintiff's attorney should be taken, in addition to that of plaintitf, that the note could not be found after diligent and care- ful search. Moore vs. Wright, 90 III. 470. Party may lay foundation, by his own oath, to prove contents of note Avhieh has been lost. Wade vs. Wade, 12 111. 88; Palmer vs. Logan, 4 111. 56. In case of unindorsed notes, affidavit of payee or his agent, of loss of same is sufficient to admit secondary evidence of con- tents. McMillan vs. Bethold, Smitli & Co., 35 111. 250. Likewise wdiere note bears special indorsement. Eogers vs. Miller, 5 111. 334. And contents may be shown by chattel mortgage given to se- cure same. O'Neil vs. O'Keil, 123 111. 361. Pleading's : Copy of lost pleading may be used as evidence, if fact of loss and correctness of copy is proved by a witness. Atlitlavit of attor- ney is not sufficient. He himself should be called to testify thereto. Harlev vs. Harlev, 67 App. 139. Though such copy be properly established, it is not error to refuse to permit same to be tiled, since filing is not essential to its use as evidence. Harlev vs. Harlev, 67 App. 139. As foundation for introducing parol proof of contents of bill and answer to suit in chancery, the deputy clerk testified that he had carefully examined the boxes in w^hich the papers of the term were placed, and could not find the papers of that case, and did not think they were in his office. The deputy showed a receipt for the papers by a former attorney of the party against whom they were sought to be given in evidence. The attorney said he had never returned the papers to the clerk's office, but had handed them over to another attorney, his successor in the case ; that he had searched his own office and could not find them. The last attorney to whose hands the papers seemed to have been traced, said he had never seen them. This was sufficient proof of loss to admit secondary evidence of contents. Carr vs. IMiiier, 42 111. 179. Corporate Records : Copy of minutes of private corporation cannot be proven by record in recorder's office without preliminary proof showing due search and producing as witnesses, or taking depositions of, offi- cers of corporation, in whose custody the record of the corpora- tion should be. Mullanphy Savings Bank vs. Sehott, 135 111. 655. LOTTERY 811 Wills: The contents of a lost or destroyed will may be proven by testi- mony of a single witness. The declarations of a testator, written or oral, made after execu- tion of will are, in event of its loss, admissible, not only to prove it had not been cancelled, but also as secondary evidence of its contents. In re Page, 118 111. 576. To establish contents of lost will, it is not essential that sub- scribing- witnesses, by whom it is sought to make the proof, shall be able to repeat its exact language, and it is sufficient if they are able to recollect with certainty the substance of the will, which is a very simple one. Cassein vs. Prindle, 258 111. 11. Clear proof of the execution, attestation and contents of a will, and that the will was last seen in possession of widow some weeks after testator's death, justifies the presumption that the widow^ performed her duty under the law and delivered the will to the probate court, and such proof, coupled with testimony of clerk of probate court, that he has made diligent search among the files and records of his office, and has been unable to find the will, makes a prima facie case that the will has been lost. Cassem vs. Prindle, 258 111. 11. t Lost or destroyed wills cannot be established and the distribu- tion of estates determined upon unsatisfactory evidence, such as that of a single witness, who testifies that after the death of testa- trix, she found in her clotliing, and gave to her husband, a paper enclosed in a wrapper of the same size and color as the one shown to her in court a year and a half after the incident occurred, and which is claimed to be a fac simile of the alleged will. St. Mary's Home vs. Dodge, 257 111. 518. LOTTERY Defined: A scheme for the distribution of prizes by chance. Thomas vs. People, 59 111. 160; Dunn vs. People, 40 111. 465; XIII 111. Notes, 351, § 1. There must be chance to gain or lose by the drawing. Elder vs. Chapman, 176 111. 142. Statute not only covers chances sold or drawn, "but also those to be sold or drawn, ' ' and it is not necessary to show ones in ques- tion were sold. Peo[>le vs. Kriiger, 237 111. 357, Admissibility of Evidence: In order to prove the intent with which a ticket is sold, the bill or advertisement delivered to purchaser is admissible, Thomas vs. People, 59 111. 160. Tickets and handbills found at defendant's place of business are admissible. Dunn vs. People,. 40 111. 465. 812 MAGNIFYING GLASS So also are other tickets and bills or advertisement of similar kind sold and delivered to other parties. Thomas vs. People, 59 111. 1(50. In action for money had and received, to recover money re- ceived by the defendant for plaintiff and converted to his own use, it is' immaterial that the money was won by plaintiff in a lot- tery or otherwise. Brady vs. Horvath, 167 111. GIO. MAaNIFYING GLASS Use by Jurors : — Whe7i Prejudicial: In an action against a city for damages for injuries from a defective sidewalk, if there is a sharp conflict as to the condition of the sidewalk, and the stringers which sup- ported it, it is prejudicial error to permit the jury to examine pieces of the stringers through a magnifying glass for the pur- pose of discovering defects. City of Elgin vs. Nofs, 200 111. 252; Cf. Howard vs. 111. T. & S. Co., 189 111. 568. — When Proper: "Where witnesses testifying with respect to altered instruments used a magnifying glass, the court may per- mit the jury to take the magnifying glass to the jury room for^ use in examining such instrument. Grand Lodge vs. Young, 128 App. 628. (In City of Rockford vs. Russell, 9 App. 229, court approved admission in evidence of a stereoscope to aid the jury in exami- nation of the views offered in evidence.) MALICE See False Imprisonment, Homicide, Intent, Libel and Slan- der, Malicious Mischief, Malicious Prosecution. MALICIOUS MISCHIEF MaHce and 111- Will: Malice must be directed against some person, ordinarily the owner of the property, but it need not be shown that the offender actually knew the owner. It will be sufficient to show that he was bent on mischief against the owner, whomsoever he might happen to be. People vs. Jones, 241 111. 482; Snap vs. People, 19 111. 80. It is not necessary to produce evidence of expressions of ill- will, but it will be sufficient if it appear from the evidence that the act was prompted by malevolence. ^,. Calef vs. Thomas, 81 111. 478. Malice may be, and frequently must be, inferred from the na- ture of the act itself, and from the circumstances which accom- MALICIOUS MISCHIEF 813 pany and characterize it, but the inference is not one of law for the court, but one of fact for the jury. People vs. Jones, 241 111. 4S2. In order to constitute the offense of malicious mischief in kill- ing an animal, it is not enough to prove a spirit of cruelty towards the animal. People vs. Jones, 241 111. 482. Under section of criminal code relating to killing, maiming or wounding domestic animals, it is not necessary to prove the ani- mal was killed or injured by defendant with intent to destroy its life. People vs. Jones, 241 111. 482. Defenses : Evidence tending to show that the act was done under a bona fide claim of right is admissible to repel presumption of malicious intent. Sattler vs. People, 59 111. 68. It is not conclusive against a charge of malicious mischief that the person was in possession under claim of ownership ; good faith and an honest and reasonable belief are essential. Wilmerton vs. Sample, 39 App. 60. A vicious animal may lawfully be killed if found by the owner of property under such circumstances as would indicate an apparent danger that his property Avould be injured* or destroyed unless the aggressor was killed. The law from the earliest times has recognized the right to defend property against the unlawful acts of man or beast. Anderson vs. Smith, 7 App. 354. The owner of crops has no right to wound or kill domestic animals found trespassing upon the premises. This rule applies as well to fowls as to more valuable animals. Eeis vs. Stratton, 23 App. 314. In prosecution for injury to animals, proof that defendant's act was absolutely necessary for the protection of his property is not required. People vs. Jones, 241 111. 482. The inherent right of a person to protect his property is the right to do whatever, under the circumstances of the particular case, is apparently reasonably necessary for its defense ; but the same rules do not apply as governing the defense of one's life, and the reasonableness of the force used depends in some degree upon whether the offense is against an animal or human being. People vs. Jones, 241 111. 482. Even if a person does an act wilfully or wantonly for the pur- pose of injuring an animal, it does not necessarily follow that he did it with malice towards the owner, and in such case the ques- tion of malice toward the owner is the crucial point, and evi- dence fairly tending to show lack of malice by defendant is ad- missible. People vs. Jones, 241 111. 482. In malicious mischief prosecution for castrating a bull which defendant discovered in his pasture among his herd of another breed of registered cows, proof that when a cow once produces a cross- 814 MALICIOUS PROSECUTION breed calf she has the tendency to cross-breed ever afterwards tends to show the seriousness of the injury to defendant as a breeder of full-blooded cattle, and is admissible as bearing upon his motive in castrating the bull. People vs. Jones, 241 111. 482. Defendant may show that animal once attacking a man will have a habit thereafter of attacking that particular man, for pur- pose of showing want of malice. People vs. Jones, 241 ill, 482. MALICIOUS PROSECUTION In General: Defendant may prove all the circumstances out of which the prosecution arose, and the various steps taken before the war- rant of arrest was issued. Banker vs. Ford, 152 App. 12. Identity O'f Parties : Whether complainant is person against whom prosecution was directed is a matter of evidence, whatever may be the name in the complaint and warrant. Conroy vs. Townsend, 69 App. 61. Must be shown that defendant was the prosecutor. Hurd vs. Shaw, 20 111. 355. Or was the principal for whom the actual prosecutor acted as agent. C. B. & Q. Ey. Co. vs. Williard, 68 App. 315. And where an action is based on arrest caused by agent of de- fendant, defendant may show that agent acted without authority. C. B. & q. Ry. Co. vs. Williard, 68 App. 315. Character of Defendant: Good character of defendant may be shown by him as an ele- ment to ward off any suspicion that he might have acted with- out probable cause. Banker vs. Ford, 152 App, 12, It is error to admit evidence, in behalf of plaintiff, of a diffi- culty in which defendant's wife had been concerned, or respecting the character of defendant's wife and son for peace and quiet. Home vs. Sullivan, 83 111. 30. Character of Plaintiff : — When Arrest Made on Complaint: In action for malicious prosecution for having plaintiff arrested for a riot, upon com- plaint made by defendant upon his own knowledge, and not upon information and belief, it is error to permit plaintiff to prove her character for peace and quiet. If the charge on which she was arrested had been made upon information and belief, such testi- mony would be admissible, as having a bearing upon the ques- tion whether defendant believed the charge to be true. Skidmore vs. Brieker, 77 111. 164. — Bad Character: Defendant may show bad character of ac- cused. Banker Vs. Ford, 152 App. 12. MALICIOUS PROSECUTION 815 Defendant may prove the general bad reputation of plaintiff at the place where he resided at time of his arrest, for honest and fair dealing in business, to rebut tiie proof of want of probable cause. Rosencrans vs. Barker, 115 111. 331. So far as such reputation was known to defendant when he in- stituted the action. Waters vs. West Chi. St. Ey. Co., 101 App. 265. Admissible as tending to show probable cause. Israel vs. Brooks, 23 111. 575; XIII III. Notes, 361, § 67. And in mitigation of damages. Eosencrans vs. Barker, 115 111. 331; Israel vs. Brooks, 23 111. 571. — Particular Acts: Evidence of good character or general reputation cannot be rebutted by evidence of particular acts, but upon cross examination, the conduct of plaintiff may be reason- ably inquired into with view to the question of his veracity. Waters vs. West Chi. St. Ey. Co., 101 App. 265. The court may, without abuse of discretion, refuse to allow defendant, after conclusion of the evidence, to introduce proof that plaintiff once stole a pair of shoes, no reason being shown why the evidence was not introduced in chief. Williard vs. Pettit, 153 111. 663. Proof of Probable Cause: — Defined: Probable cause is such a state of facts in the mind of the prosecutor as would lead a man of ordinary caution and prudence to believe or entertain an honest and strong suspicion that the person ai*rested is guilty. Harpham vs. Whitney, 77 111. 32. Reasonable ground for suspicion, supported by circumstances sufficiently strong to warrant a cautious man in belief of guilt, constitute pro])able cause. Parmelee Co. vs. Griffin, 136 App. 307; Eichey vs. McBean, 17 111. 62. Probable cause is a reasonable ground of suspicion, supported by circumstances sufficiently strong in themselves to warrant a cautious man in the belief that the person charged is guilty of offense charged. Ames vs. Snider, 69 111. 376; Franczak vs. Plotzki, 178 App. 279. To constitute probable cause, there must be reasonable grounds for suspicion, supported by circumstances sufficiently strong to warrant a cautious man in belief of guilt, Treptow vs. Montgomery Ward Co., 153 App. 422. — Reports and Neivspaper Publication: Reports and newspa- per publications, if communicated to defendant, before beginning the prosecution, are admissible on question whether it was prob- able that plaintiff was guilty of crime Avith which defendant charged him, as bearing upon the effect of the prosecution upon plaintiff's business. Waters vs. West Chi. St. Ey. Co., 101 App. 265. — Facts Surrounding Arrest: Evidence of what took place at time of arrest and during the disturbance in connection with it, is material on question of probable cause. Blumenfeldt vs. Haisniann, 30 App. 388. — Conviction Suhsequently Reversed: A judgment of convic- tion, although reversed, is prima facie evidence of existence of 816 MALICIOUS PROSECUTION probable cause for prosecution, and constitutes sufficient defense, unless proven to have been obtained by fraud. McElroy vs. Catholic Press Co., 254 J II. 290. When a justice of the peace has jurisdiction to render final judgment in the examination of a criminal charge, and is not simply a committing magistrate, and when the hearing is fair, without fraud, the testimony free from perjury, and results in a conviction of defendant, such conviction is conclusive upon ques- tion of probable cause, for the prosecution, though on appeal, defendant may be acquitted. Thomas vs. Muehlmau, 92 App. 571. A conviction by a court of record having jurisdiction of a cause, which is subsequently reversed, is not conclusive proof of prob- able cause for the prosecution, where it appears that such con- viction was procured by undue means, as by fraud, conspiracy or false testimony or subornation. Gilmore vs. Mastin, 115 App. 46. — Becord of Alleged Malicions Action: The record of ac- ciuittal of the charge is inadmissible on question of probable cause. Skidniore vs. Bricker, 77' 111. 164. Want of Probable Cause: — ■Necessity of Establishing: Want of probable cause is the gist of the action. Montross vs. Bradsby, 68 111. 185, Plaintiff must establish affirmatively that defendant instituted the prosecution without probable cause. McElroy vs. Catholic Press, 254 111. 290; Israel vs. Brooks, 23 111. 575; Eoss vs. Innes, 35 111. 487; Aiiies vs. Snider, 69 111. 376; Palmer vs. Eichardson, 70 111. 544; Brown vs. Smith, 83 111. 291; Lessick vs. Anderson, 167 App. 393; Young vs. Lindstrom, 115 App. 239 ; XIII 111. Notes 360, § 59. — Mistake of Laiv: Where defendant is a lawyer of many years experience, he can not take shelter under lack of knowledge that there was no probable cause. Epstein vs. Berkowski, 64 App. 498. — Subject Matter of Alleged Malicious Action: In action for malicious prosecution in securing arrest of mortgagor who mo- lested mortgagee in removing mortgaged goods pursuant \o _ an agreement between them, the note and mortgage are inadmissible on question of probable cause. Banker vs. Ford, 152 App. 12. — Acquittal of Plaintiff: An acquittal or discharge of plain- tiff is no proof of want of probable cause. McBean vs. Eitchie, IS 111. 114; Israel vs. Brooks, 23 111. 575; Thorpe vs. Balliett, 25 111. 339. Discharge of plaintiff raises presumption that he was discharged for want of proof of guilt. McCausland vs. Wonderly, 56 111. 410. And the declarations of defendant at time prosecution was dis- missed are inadmissible to explain why proof was not made. McCausland vs. Wonderly, 56 111. 410. Where declaration for malicious prosecution of plaintiff on charge of larceny averred that grand jury "adjudged and deter- mined that said "plaintiff was not guilty of said supposed offense, MALICIOUS PROSECUTION 817 and refused and did not find or present a hill or indictment against said plaintiff for the supposed offense, or for any offense what- ever, and then and there caused said plaintiff to be discharged out of custody, duly acquitted, and discharged of the supposed offense," proof that the grand jury ignored the bill was held proof of the averment. Gilbert vs. Emmons, 42 111. 143. — Record of Alleged Malicious Action: The proceedings before the magistrate are admissible on issue of the prosecution and dis- charge of plaintiff therein, but not to show want of probable cause. Banker vs. Ford, 152 Apj). 12. Notwithstanding the discharge of plaintiff in the criminal prose- cution is admitted, plaintiff has right to introduce order of dis- charge which constitutes the best evidence of the fact. Hascbke vs. Orr, 167 App. 656. — As Being Inferred From Malice: "Want of probable cause cannot be inferred from malice. MeElroy vs. Catholic Press Co., 254 111. 290; Banker vs. Ford, 152 App. 12; Ames vs. Snyder, 69 111. 376; Brown vs. Smith, 83 111. 291; XIII 111. Notes," 356, §11. — Action for Breach of Contract: Want of probable cause for prosecution for obtaining a meal at an inn with intent to defraud,, is shown where the meal was not had, and there is at most but a breach of contract to pay for a meal in readiness when the guest leaves, and this known to the prosecutor. Sundmacher vs. Bloeh, 39 App. 553. — Character of Plaintiff : The previous good character of plain- tiff, and the knowledge of same by defendant at time of making the accusation, may be given in evidence to show want of prob- able cause. Israel vs. Brooks, 23 111. 575. Among the circumstances tending to prove want of probable cause, the good character of accused stands out prominently and is a strong fact, if known by accuser, to ward off suspicion and weaken belief, he being a prudent and cautious man, in the guilt of suspected party. Eoss vs. Innes, 35 111. 487. — Admissions of Plaintiff: The admissions of plaintiff are proper to be considered by the jury. Israel vs. Brooks, 23 111. 575. — Defendant's Knowledge of the Facts: When defendant, financially embarrassed, secures an indictment against plaintiff for perjurj' in making an affidavit of defendant's financial condi- tion, such facts are sufficient to show want of probable cause. Montross vs. Bradsby, 68 111. 185. — Intent of Prosecutor: Intent of prosecutor in causing ar- rest is incompetent to show want of probable cause. Eoy vs. Goings, 6 App. 140. Malice : — Defined: IMalice, in its legal sense, means a wrongful act done intentionally, without cause or excuse; the wilful violation of a known right. London Guaranty Co. vs. Horn, 206 111. 493. That evil quality of the heart which prompts a man to make a Ev. — 5 2 818 MALICIOUS PROSECUTION false charge against another, for the purpose of private gain or advantage, is legal malice. Neufeld vs. Eodeminski, 144 111. 83. To constitute malice, there must be something more than spite 01' hatred, party must be actuated by improper and indirect motives. Splane vs. Byrne, 9 App. 392; Harpham vs. Whitney, 77 111. 32. Burden is on plaintiff to show nudice and want of probable cause. Lowiy vs. Hatcly, 30 App. 297. — Evidence io Show Malice: Where action is based on prose- cution of plaintiff for larceny, assistant state's attorney may state why he did not describe in the indictment all of the articles men- tioned in the list presented to the grand jury. Penny vs. Johnston, 142 App. 634. AYitness for defendant may testify as to communication by him to defendant, relative to information received by him as to guilt of plaintiff of charge upon which alleged malicious prosecution was based, as bearing on question of defendant's good faith. Penny vs. Johnston, 142 App. 634. The abuse of legal process to the injury of another is, in itself, proof of malice. Ki-ug vs. Ward, 77 111. 603 ; Schofer vs. Sntter, 63 App. 2.57. _ . ; Opinion of witness for plaintiff, that defendant, when testify-' ing in alleged malicious prosecution, was vindictive, is incompe- tent. Ames vs. Snyder, 69 111. 376. ^lalice and want of probable cause being the ground for nudi- cious prosecution, any fact tending to disprove either is competent. Anderson vs. Friend, 71 111. 475. It is evidence of malice that three separate warrants are sworn out upon distinct charges growing out of the same transaction, and that defendant said to plaintiff, both before and after arrest that he would "fix her," and that he would make her "sick and tired," etc. Epstein vs. Berkovrsky, 64 App. 498. It is admissible to prove that defendant inquired where he could get a lawyer to do a "dirty, mean trick," in order to show malice or bad faith, where defendant alleges that he acted in good faith on advice of counsel. Willard vs. Petit, 153 111. 663. — Question for Jury: Malice is a question of fact for the jury, and in no case does a legal prcsumpiion of malice arise from want of i)robable cause. The jury may infer malice as a matter of fact from want of probable cause, but it does not necessarily follow. Harpham vs. Whitney, 77 111, 32; Israel vs. Brooks, 23 111. 575. — Concurrence ivith Prohuhle Cause: It must be shoAvn that defendant instituted the prosecution against plaintiff maliciously and without probable cause, and the two must concur. Jacks vs. Stimsou. 13 III. 702; Lndwig vs. Eawson, 2 111. 272; Lessick vs. Anderson, 167 App. 393; Montross vs. Bradsby, 68 111. 185; XIII HI. Notes 356, §10. It is a defense to action to show arrest was without probable cause, but not malicious. Siegel-Cooper Co. vs. Tuebbeeke, 133 App. 312. MALICIOUS PROSECUTION 819 Express proof of malice will not sustain an action if there was probable cause for a prosecution. McBeaii vs. Kilehie, IS 111. 114. If there is probable cause for a prosecution, it is immaterial if such prosecution was actuated hy malice, and also immaterial that plaintiff was not only found not guilty, but was actually innocent. Tumalty vs. Parker, 100 App. 382. — Right of Defendant to Testify to Absence Of: Defendant may testify as to his motive and may state that he was not actu- ated by malicious ill-will, and that he honestly believed in plain- tiff's guilt. Harpham vs. Whitney, 77 111. 32 ; Baker vs. Eonk, 134 App. 499. — When Acting Under Authority: Where a person has au- thority giving him power of attorney to enter judgment, he can- not be held liable for the effect of the entry of such judgment, merely because the evidence shows his motives were malicious. •Martin vs. Summers, 79 App. 392. — Inferred from Surrounding Circumstances: IMalice may be inferred from the circumstances surrounding the case. Epstein vs. Berko^vsky, 64 App. 498. — Inferred from ^¥ant of Probable Cause: Malice may be inferred from want of probable cause. McEIroy vs. Catholic Press, 254 111. 290; Treptow vs. Montgomery Ward & Co., 153 App. 422; Banker vs. Ford, 152 App. 12; State Bank vs. Noser, 133 App. 173; Daily vs. Donath. 100 App. 52; Montrose vs. Bradsby, 68 111. 185; Ames vs. Snyder, 69 111. 370; XIII 111. Notes, 357, § 22. In general the jury is authorized to infer malice from want of probable cause alone, where the facts and circumstances in evidence, which establish the principal fact, are inconsistent with good faith upon the part of the prosecutor, but in cases where the proof may show a want of probable cause, yet if the evidence upon this point is consistent with good faith, the jury ought not to infer malice, simply because the principal fact is proved, but in such case the plaintiff should go further and introduce inde- pendent evidence of malice. Comisky vs. Breen, 7 App. 369. Malice is in no case a legal presumption from the want of probable cause, it being for the jury to find from the facts proved, where there was no probable cause, wh'ether there was malice or not. Harpham vs. Whitney, 77 111. 32; Cartwright vs. Elliott, 45 App. 458; Christman vs. Christman, 36 App. 567. This inference is not in all cases necessarily to be deduced from the existence of the fact that there v/as no probable cause. Comisky vs. Breen, 7 App. 369. — Inferoice When Suit Brought on Information and Belief: Malice is not to be inferred from the fact that the prosecution was begun without a personal knowledge of the facts, but was brought on information and belief. Harpham vs. Whitney, 77 111. 32. — Termination of Proceedings in Favor of Plaintiff: The ter- mination of a criminal prosecution, on account of which the action 820 MALICIOUS PHOSECUTION is brouglit, in favor of plaintiff, does not tend to prove either the element of malice, or want of probable cause. Tuebbecke vs. Ruthschild, 152 App. 321. — Dismissal of Suit: Where a prosecution was dismissed, de- fendant may show by the prosecuting attorney why he dismissed it, in order* to rebut any inference of malice. Anderson vs. Friend, 71 111. 475; Collins vs. Fislier, 50 111. 359. — Intent as Showing Malice: The intent of the prosecutor in causing the arrest may be proven to show malice. Eoy vs. Goings, 6 App. 140. — Ads Similar to Those Made Basis of Alleged Malicious Prose- cution: Where the alleged malicious prosecution was for lar- ceny of defendant's goods, evidence of thefts of other goods than those described in the indictment, prior to finding of indictment, is competent on question of defendant's good faith. Penny vs. Johnson, 142 App. 634. — PuUishing Fact of Plmntiff's Arrest: The fact that defend- ant caused or secured the publication of an account of plaintiff's arrest on the charges against him is admissible to show malice. Waters vs. West Chi. St. Ey. Co., 101 App. 265. — Motive: Plaintiff must show that the motive of prosecu- tor, in instituting the proceeding, was malicious. Comisky vs. Breen, 7 App. 369. Where the action is for prosecution for forgery, in making a copy of a cancelled contract and placing it on record as an orig- inal, the motive for that act, while not in issue, is a circumstance proper to be considered by the jury in connection with other facts in the case. Davie vs. Wisher, 72 111. 262. Advice : — By Justice of Peace or Police Officer: Advice given by a police officer may be proven as showing the circumstances under which the prosecution was instituted, and to mitigate damages, but not as a defense. Hirsh vs. Feeney, 83 111. 548. The fact that attorney giving the advice was a justice of the peace and, afer giving it, issued the warrant, is immaterial. Morrow vs. Carnes, 108 App. 621. — Necessity of Acting in Good Faith: To render advice of an attorney a defense, the party seeking advice should act in good faith, and it must appear he made a full and fair statement of all the material facts to the attoniey. whose advice he followed. Thomas vs. Kerr, 137 App. 479; Daily vs. Donath, 100 App. 52; Eoy vs. Goings, 112 111. 656. The mere fact that party sought advice and acted upon it is not sufficient. The advice must be sought, given and acted upon in good faith. Morrow vs. Carnes, 108 App. 621. And proof of such advice is admissible though conduct of de- fendant has been so outrageous as to preclude from his mind all idea that criminal proceeding was commenced in good faith. Morrow vs. Carnes, 108 App. 621. — As Showing Absence of Malice: Where a person, in the act of preferring a charge against a party for burglary, is advised MALICIOUS PROSECUTION 821 by an attorney sent by the pu1)lic prosecutor to assist in the mat- ter, after stating the facts to him, that the charge of burglary could not be sustained, but that a charge of vagrancy could be, abandoned the charge of burglary and signed and swore to a complaint for vagrancy as prepared by the attorney, upon which such party was arrested, examined and discharged, held, that the advice of the attorney, given after a statement of the material facts, was a protection for swearing out the warrant for vagrancy, and that in so doing, the person making the complaint was not actuated by malice. C. R. I. & P. Ey. Co. vs. Pierce, 98 App. 368. — As Slioiving Probable Cause: When a person in good faith consults a respectable attorney, and makes to him a full and fair statement of all the facts, and acts on his advice, it is strong evi- dence that there was probable cause. Skidamore vs. Bricker, 77 111. 164. And be is not liable in action for malicious prosecution. Dahlberg vs. Grace, 178 App. 97. Where a party consults competent legal authority and such counsel, after deliberation, advises arrest for a criminal offense, the party causing the arrest should not be held to respond for any damages for want of probable cause. FitzSimmons vs. Mason, 135 App. 566; Abel vs. Downey, 110 App. 343. Where one found a person fainting from the effects of a wound, and is told that a certain person inflicted it, and is advised by the physician and competent legal counsel, whom he consults, to do so, there is probable cause for swearing out a warrant. Wagner vs. Altman, 2 App. 147. — As Shoiring Want of Malice: Advice of counsel may be shown to negative malice. Verdon vs. Lassarias, 172 App. 244 ; Ross vs. Innes, 35 111. 487. Where defendant acts in good faith on advice of counsel, pre- sumption of malice will be rebutted. Roy vs. Goings, 112 111. 656. The fact that party, in good faith, consults competent attor- ney and makes to him a full and fair statement of the facts, affords strong evidence that such party acted without malice. Skidmore vs. Bricker, 77 111. 164 ; Palmer vs. Richardson, 70 111. 544. If a criminal prosecution is instituted by a party maliciously, and not in good faith upon advice of legal counsel that a crime has been committed, he will be liable for malicious prosecution, and advice of counsel will not avail as a defense. Neufeld vs. Rodinski, 144 111. 83; Freeman vs. Wright, 113 App. 159. — Right of Attorney to Testify as to Advice Given: The attor- ney consulted may testify as to the opinion he gave as to the right of action and arrest of plaintiff. Collins vs. Hayte, 50 111. 337. — When Accused -Not Guilty: When one is sued for maliciously commencing a criminal prosecution against another, he may show that he made a full disclosure of all the facts to a reputable licensed 822 MALICIOUS PROSECUTION attorney, and acted upon his advice, notwithstanding it may appear that the party accused is not guilty. Morrow vs. Carnes, 108 App. G21. Termination of Prosecution: — When Frusccution Deemed to Be Ended: Where plaintiff is bound over to grand jury, and subseciuently discharged by habeas corpus, the prosecution is at an end, and suit for malicious prosecution may be instituted, Millar vs. SoUitt, 131 App. 196. — Necessity of Showing: Plaintiff must show prosecution has been legally determined in his favor. Feazle vs. Simpson, 2 111. 30; McBean vs. Eitchie, ]8 111. 114; Walker vs. Martin, 43 111. 508; Blalock vs. Randall, 76 111. 224. And particular manner in which the prosecution was terminated must be proven as alleged. Coniisky vs. Breeu, 7 App. 369. — Character of Termination: Must have been a legal, judicial termination. Bonuey vs. King, 201 111. 47; Hibbard vs. Ryan, 46 App. 313; Leyenberger vs. Pall, 40 App. 516. Record of Proceeding: Discontinuance of the prosecution is to be shown by the record, but such record is admissible only for the purpose of showing prosecution has come to an end, and nothing else. ^,^ , Tumalty vs. Parker, 100 App. 382; Enright vs. Gibson, 119 App. 411; Comisky vs. Breen, 7 App. 369; McGuire vs. Goodman, 31 App. 420. A discontinuance of the prosecution is to be proven by the record. Tumalty vs. Parker, 100 App. 382. — Justice's Record: Where prosecution is before a justice of the peace, his docket or certified copy of same is admissible to prove termination of prosecution. Enright vs. Gibson, 119 App. 411; Knecht vs. Lehr, 81 App. 208; Comisky vs. Breen, 7 App. 369; Faduer vs. Filer, 27 App. 506; McGuire vs. Goodman, 31 App. 420; Wilmerton vs. Sample, 39 App. 60; C. C. C. & St. L. Ry. Co. vs. Jenkins, 75 App. 17. Parol Evidence: Where plaintiff alleges termination of prose- cution in his favor, he must prove such averment by production of record, and if the court is compelled to reject the offered rec- ord, its place cannot be supplied by parol. Comisky vs. Breen, 7 App. 369. Burden of Proof : In General: Burden is on plaintiff to establish essential elements of his cause of action. Daily vs. Donath, 100 App. 52 ; Schildrup vs. Farwell, 67 App. 630. Thus it is incumbent upon plaintiff to show, first, want of prob- able cause on part of defendant in commencing prosecution; sec- ond, malice on his part; and third, termination of prosecution in plaintiff's favor. Daily vs. Donath, 100 App. 52 ; Schildrup vs. Farwell, 67 App. 630. — Prohahle Cause: Burden of proving probable cause is on defendant. Collins vs. Hayte, 50 111. 337. MARKET PRICE 828 — Want of Probable Cause: Burden of showing want of pvol)- able cause is on plaintiff. McElroy vs. Catholic Press, 254 111. 290; Davie vs. Wisher, 72 111. 262; Ames vs. Snyder, 69 111. 376; Boss vs. Innes, 31 111. 487; Krebs vs. Thomas, 12 App. 266; Skala vs. Bus, 60 App. 479; Tumalty vs. Parker, 100 App. 382; Yoimg vs. Lindstrom, 11.5 App. 239; XIII 111. Notes, 360, § 59. — Malice: Burden is on plaintiff to show, by a preponderance of the evidence, that defendant was actuated by malice. Tumalty vs. Parker, 100 App. 382; Lowery vs. Hately, 30 App. 297; Israel vs. Brooks, 23 111. 575; Collins vs. Hayte, 50 111. 337; Calif. vs. Thomas, 81 111. 478. Damages: — Actual Damages: Proof of false imprisonment and malicious prosecution for alleged larceny is proof of actual damages. Enright vs. Gibson, 119 App. 44; Affd., 219 111. 550. — Expenses of Snit: Evidence of expenses incurred in defend- ing against judgment and loss of use of property attached, justify verdict in action for maliciously suing out attachment. First State Bank vs. Noser, 133 App. 173; Lavrrence vs. Ilagcr- man, 56 111. 68. In action for malicimisly suing out writ of attachment, evi- dence of the nature, character and amount of business, the com- plete destruction of that business, impairment of credit, actual loss of stock levied upon, is competent. Lawrence v^, Hagerman, 56 111, 68. MALPRACTICE See Physicians and Surgeons, Expert and Opinion, Burden OF Proof, MANSLAUGHTER See Homicide, Former Conviction. MARKET PRICE See Value, Eminent Domain. Rules to Determine : Price at place of delivery is to be taken. Newlan vs. Dunham, 60 111. 233. If goods are bought in large quantities, the market price at retail is not the standard of the market price in large quantities. Bagley vs. Findlay, 82 111. 524. It is unnecessary to use either of the terms, "wholesale" or "retail" in questioning witnesses on the subject of price. The use of either of these terms may lead to misunderstanding, for the quantity the examiner may have in mind as being wholesale in quantity may not be Avholesale quantity in the mind of the witness. Wendnagel vs. Housten, 155 App. 664. 824 MARKET PRICE The fair cash market value of property is not to be in any wise determined by mere offers made therefor by persons not bound to execute such offers. White vs. Higgins, 130 App. 404. Judicial Notice : It is a matter of common knowledge of which courts must neces- sarily take judicial notice that there is probably no article of merchandise bought and sold in the market in both large quanti- ties and small quantities but that the price is less when purchased in larger quantities. The line of demarcation, however, between the lesser and the higher prices, is not a matter of common knowl- edge. Wendnagel vs. Houston, 155 App. 664. Presumptions : Where the market price of grain is shown on a day named, in the absence of evidence to the contrary, it will be presumed to continue until the next day. Nash vs. Classen, 55 App. 356 ; Affd., 163 111. 409. Admissibility of Evidence : — In General: The value of a thing stolen must be proven, and this means market value. People vs. Silbertrust, 236 111. 144; Brown vs. People, 173 HI. 34. If there is a market price at the place of delivery, evidence of the market price at some other point, deducting the amount of freight, is not admissible to establish market price at the place in question. Graves Co. vs. Lumber Co., 163 App. 231. Cost of manufacture and transporting to market may be in- quired into. Farson vs. Gilbert, 114 App. 17. — Hearsay and Opinion Evidence: Expressions of opinions of others as to value of patent is hearsay. Aiken vs. Hodge, 61 111. 436. Where a person shipping gi-ain to market, through his agent there, sells the same, not being present at the sale and having no personal knowledge of the price it sold for, is asked on the witness stand what price he received for the same, an objection to the question will be properly sustained, as his testimony would be based entirely upon the report made to him. In such case, the testimony of the agent who made the sale should be taken on that question. Carpenter vs. First Natl. Bank, 119 111. 352. — Price Received at Other Sales: In action to recover for hogs lost in transit, it is competent, as bearing upon the market value of the hogs lost, to show what was received from the sale of the remaining hogs of the same shipment at the place of destina- tion of the entire shipment. Field vs. St. L. & S. P. E. E. Co., 152 App. 562. Where the market value is sought to be established by other sales, it is essential that such sales should be of like merchandise in similar quantities and conditions as that in question, made at a MARKET PRICE 825 time when the market value Avas the same as that at the time of the sale as to which mai-ket value is sought to be fixed. Eice vs. Penn. Plate Glass Co., 117 App. 356; Bagiey vs. Findley, 82 111. 524. — Neivspaper Quotations: Proof of the market price of a com- modity at a particular time and place cannot be made by hear- say evidence, except that in the absence of witnesses having per- sonal knowledge of such market price, market quotations or reports in newspapers of general circulation are competent. Private in- formation conveyed in conversation is not admissible. TuUy vs. West. Union Tel. Co., 141 App. 312. AVhere it was proven that defendant had corrected the price current in a newspaper, tiles of the paper were properly admit- ted in evidence against him to prove the market price of grain. Henkle vs. Smith, 21 111. 238. — Adjacent Market Prices: Where the market price of a com- modity is in issue, and no market price at the place of delivery has been established by the usual mode of trade, it is competent to hear proof of prices in adjacent and controlling markets. Hogan vs. Donahue, 49 App. 432; Penn Co. vs. John Anda Co., 131 App. 426. — Dealers' Price Lists: Dealers' prices-current are not ad- missible in evidence to prove value. Cook Co. vs. Harms, 10 App. 24. — As to Price of Corporate Stock: Where stock is unlisted and has no recognized value upon any general stock market or exchange, the fair cash value thereof can be established, prima facie at least, by one dealing in such stocks and who so quali- fies himself as a witness, Greene-Grieb Co. vs. Quinlen & Co., 148 App. 1. Opinion of witness, who has long been officer of corporation, is competent as to value of corporate stock. Bordner vs. Depley, 142 App. 526. It is competent, in trover for conversion of certificates of stock, for a stock-broker, knowing the market value of the stock at all times during the year, to testify as to market value on the date of transfer of such stock on books of corporation. Burns vs. Shoemaker, 172 App. 290. When a suit is for value of corporate stock, and it is testified that such stock is worth par, it is improper to sustain objection to a question on cross examination inquiring as to whether such stock has ever paid dividend. Failure to do so might be ex- plained. Hughes vs. Ferriman, 119 App. 169. If stock has no ascertainable market value, it is proper to admit evidence as to value of property of corporation, assets of company and amount of liabilities. By such proof, the value of its capital stock mav be determined with reasonable certainty. McDonald vs. Danahay, 196 111. 133; Sturges vs. Keith, 57 111. 451. If, in ascertaining the value of the stock, no market value, for want of sales, can be established, it is proper to admit evidence showing assets and liabilities of corporation as tending to show real value of stock. Goodwin vs. Wilbur, 104 App. 45. 826 MARKET PRICE Or that company was ready to increase stock issue and owners were to have part of new issue at reduced rates. Sturges vs. Keith, 57 111. 451. — As to Pnce of Horses and Grain: Evidence of name of sires of the animal and unborn foal is admissible as element of. O. & M. Ey. Co. vs. Stribling, 38 App. 17. Board of trade prices do not always represent true market value. So in an action between the vendor and vendee for the price of corn, it was contended that the market price, at the place of de- livery could be controlled by the Board of Trade at Chicago, less the cost of transportation, etc. On the otlier hand, the contrary was contended; an offer was made to prove that the grain was cornered on the Board of Trade on that day and that before the prices there prevailing could be obtained, it must be inspected in an elevator in Chicago, a warehouse receipt issued and duly reg- istered. It was held that the proof offered was competent and the court erred in refusing it. Hogau vs. Donahue, 49 App. 432. Weight and Sufficiency of Evidence: Evidence of a broker who liad made purchase of merchandise like that in question at the place in question and at or about the time in question is sufficient to show prima facie the market price of such merchandise at the time and place involved. Euston &: Co. vs. Erie E. E. Co., 147 App. 594. An actual sale made by a reliable concern of the kind of com- modity in question tends to establish the market value of such property at the time of the sale. 'Hasler Co. vs. Griffing Co., 133 App. 635; I, C. E. E. Co. vs. Cobb, 72 111. 148. Competency of Witnesses : A witness who, when called upon to testify upon the question of market values during a certain period, states that it is impos- sible for him to state what such market values were, disqualifies himself from testifying. Gilbert vs. Gallup, 76 App. 526. In action for injuries to horses in shipment, the plaintiff who has had large experience in selling horses, may testify as to the market value of hoi-ses at the point of destination, even though he had but limited knowledge of the market, the weight to be given his testimony being for the jury, C. C. C. & St. L. E. Co. vs. Patton, 203 111. 376. Proof of market value must be shown by a witness competent to testify to the market value of the commodity in question at the time and place involved, when sold in the quantities in issue, when a question is raised as between wholesale and retail prices. Weiiduagel vs. Houston, 155 App. 664. ]\Iarket values may be established by the testimony of experts who (jualify by showing knowledge of quotations gained by let- ters and wires. .Jackson Sons Co. vs. N. Y. C. E. Co., 167 App. 461. A witness who has bought buggies and who is familiar with the , value of same in Chicago, is competent to testify as to such value. Maiss vs. Met. Amuse. Assn., 146 App. 196. MARRIAGE 827 MARKS AND BRANDS See Identity, Ownership, Trade ]\Iarks. MARRIAGE See Husband and Wipe, Alienating Affections, Criminal Conversation, Bigamy, Divorce, Breach of Promise. Admissibility of Evidence : — In General: Whether the marriage relation exists is always a matter of evidence, and may be proven by records or any other evidence sufificient to establish the fact; and if it be shown that parties intending marrige have accepted each other as husband and wife, contract will be enforced. Elzas vs. Elzas, 171 111. 632; Hebblewaithe vs. Hepworth, 98 111. 126. — Parol: Record evidence of marriage is not required. Lowery vs. Peoiile, 172 111. 466; Lowry vs. Coster, 91 111. 182; Miller vs. White, 80 111. 580; Jackson vs. People, 3 111. 231; Hooper vs. McCaffery, 83 App. 341; XIII 111. Notes, 397, §§ 26-28. But may be shown by parol or by reputation, declarations and conduct of parties, and other circumstances usually accompanying that relation. Lowry vs. Coster, 91 111. 182. In actions for criminal conversation, and prosecutions for big- amy and adultery, actual marriage must be shown. Lowery vs. People, 172 111. 466; Miller vs. White, 80 111. 580; Keppler vs. Elzer, 23 App. 643. In prosecutions by wife under Dram Shop act, plaintiff may testify as to existence of marital relationship. Lowry vs. Coster, 91 111. 182. — Opinion : A witness may not state that certain persons were married, the question is for the jury to determine from the evi- dence as to what was done in the way of entering into a marriage contract. Sokel vs. People, 212 111. 238. — Acts, Declarations and Bcputation of Parties: During the time a marriage relation is claimed to exist, are competent as part of the res gestae, as showing how the parties regarded each other. Eobinson vs. Eobiiison, 188 111. 371. General reputation is admissible to prove marriage. Miller vs. White, 80 111. 580. — Register of Marriages and Births: A copy of an entry in a parish register is admissible. Groom vs. Parables, 28 App. 152. It is- requisite to admission of church records that it shall appear the entries were made by the person whose duty it was to make them. Murphy vs. People, 213 111. 154. Registers of births and marriages made pursuant to the statutes of any of the United States, are competent evidence; but when not made under the sanction of law and official duty, they are not evidence. Tucker vs. People, 117 111. 88. — Marriage Licenses and Certificates or Copies Thereof: In 828 MARRIAGE suit for criminal conversation, a marriage license issued in sister state with a certificate indorsed thereon by a justice of the peace that he had solemnized the marriage, was admitted in evidence ; the official character of the officer granting the license and also that of the justice being certified by the clerk, the keeper of the rec- ords, under the official seal, and the presiding judge having certi- fied to the authority and official character of the clerk, it was held that the license and certificate were properly admitted. King vs. Dale, 2 111. 512. Exemplified copy of marriage license of state Vv^here marriage was performed and marriage certificate signed by municipal judge of city wherein same was performed, being properly authenticated, are admissible. Eeifschneider vs. Eeifsclmeider, 241 111. 92. In action for criminal conversation, certificate of county clerk simply certifying to fact of marriage is inadmissible. Ewing vs. Cox, 158 App. 25. — Letters: On prosecution for bigamy, letters of defendant written to former wife while they were living together as husband and wife, showing that they were so living together, and that she was acknowledged by him as his wife, are admissible to show fact of prior marriage. Tucker vs. People, 122 111. 583. Where complainant is seeking to establish her marriage to a party since deceased, letters written after the alleged marriage, in his handwriting and bearing his signature, found among his pa- pers, enclosed in envelopes and stamped and post marked, ad- dressed in his handwriting to complainant under a name other than his wife, are admissible without proof that complainant re- ceived them, as part of the res gestae, to show how deceased then regarded her. Laurence vs. Laurence, 164 111. 367. — In Proseeutions for Bigamy: Whether the parties were mar- ried is a question for the jury, to be determined from the evi- dence as to what was done in the way of entering into the marriage relation, and it is error to permit a witness to state that they "were married" by a rabbi on a certain occasion when he saw them together. Sokel vs. People, 212 III. 238. A paper purporting to be a transcript of the records of mar- riages reported to the board of health, showing the marriage of a person having the same name as defendant, to a certain woman, is not admissible in a bigamy prosecution, in absence of identifica- tion and of proof that the record was one reciuired by law to be kept; but admission is not prejudicial if the marriage is other- wise proven. Sokel vs. People, 212 111. 238. The prosecution, to prove the second marriage in another state offered in evidence the certificate of the clerk of the district court of such state, that there was in his office a record of a marriage license and certificate of the marriage, giving copy thereof, to which was attached certificate of the judge of the coui-t that clerk's attestation was in due form. In the absence of proof tha* MARRIAGE 829 such entries were required to be kept, by some law of the state from which they come, the certihcate and exemplification were not admissible in evidence. Tucker vs. People, 117 111. 88. Conversation and letters of the parties addressing each other as husband and wife are admissible, and the marriage may be shown by a certified copy of the records of the county clerk, of the certificates of the person who performed the marriage cere- mony, indorsed on the license. Tucker vs. People, 122 111. 583. It is proper to refuse to allow a witness to answer the question if she knew the accused had delirium tremens during the week of his second marriage, since, to be proper at all, the question should have been limited to the time of the marriage. Barber vs. People, 203 111. 543. Weight and Sufficiency of Evidence : — In General: Evidence that the parties agreed to accept each other as man and wife, that the woman thereupon abandoned her dissolute life and moved with her accepted husband into a respecta- ble locality, where they lived together openly as man and wife; that the man introduced her and spoke of the woman as his wife and directed his letters to her as such, will establish a common law marriage, as against the uncorroborated denial of the husband. Elzas vs. Elzas, 171 111. 632. See 111. Statutes Annotated, Jones & Addington, Chapt. 89, Sec. 7348. The presumption of the legality of a marriage, arising from tes- timony of witnesses who were present at the ceremony, cannot overcome positive proof that the marriage was invalid under laws of country where the ceremony took place. Canale vs. People, 177 111. 219. Evidence tending to show that party had instituted divorce proceedings is insufficient to prove she was not divorced. Winter vs. Dibble, 251 111. 200. — Performance of Ceremony: In a civil case, evidence of performance of marriage ceremony in presence of witnesses, by church officials, tends to establish a marriage without proof of exact words used in ceremony. Resnick vs. Eesniek, 126 App. 132. Evidence that accused and a woman went through the mar- riage ceremony before a minister in a sister state; that he pro- nounced them man and wife; that afterwards the parties came to Illinois, where they lived together for many years, raising a family of children, is sufficient proof of marriage per verha de prescnti without proof that the minister was ordained or author- ized by the laws of sister state to solemnize marriages. Lyman vs. People, 198 111. 544. A mere marriage ceremony does not establish relation of hus- band and wife. Capacity and consent are absolutely necessary to the marriage relation. Orchardson vs. Cofield, 171 111. 14. — Contracts Per Verla De Presenti: At common law, if con- tract is made per verha de presenti, it is sufficient evidence of marriage. Port vs. Port, 70 111. 484. 830 MAERIAGE Evidence of a contract of marriage per verba de presenti, fol- lowed by cohabitation as husband and wife, is strengthened by the facts that there had not been previous illicit intercourse between the parties, and that there was no lack of capacity on the part of either to marry. Hejniau vs. Heyman, 218 111. 636. — Cohahitation and General Reputation: In proceedings to re- voke letters of administration, on ground that holder of same Avas not lawful widow of deceased, on account of former mar- riage, the fact of cohabitation with former husband and general report to that effect are insufficient to establish the marriage. Myatt vs. Myatt, 44 III. 473. In actions under statute by M'idow or next of kin for wrong- ful death of husband, the relation of husband and wife may be established by reputation. Conaut vs. Grimn, 48 111. 410. Where a marriage in fact is shown, either by record evidence or by witnesses present at its celebration, the long continued cohabitation of the parties, their reputation of being man and wife, and their recognition as such in society, will afl'ord evidence of their marriage in some legal mode, unless it is shown that the cohabitation commenced illegally. Marriage may be shown by circumstantial evidence. Cartwriglit vs. McGowan, 121 111. 388. — Confession or Acknowledgment of Uclation: The confession or acknowledgment of the relation Iw plaintiff is insufficient to prove fact of marriage in action for criminal conversation. Kepplor vs. Elzer, 23 App. 643. Proof that alleged husband spoke and addressed the other party as his Avife, and that he drew checks in her name as his Avife, is not sufficient to show a common laAV marriage, as against evidence showing the i-elation between them to be adulterous, and knoAvn to both of them to be such. In re Estate of Maher, 204 111. 25. — Admissions and Declarations: Admissions of party may be sufficient to prove marriage. Loweiy vs. People, 172 111. 406; Cf. Tucker vs. People, 117 111. 88. Admissions of Avoman, together with fact of cohabitation, is insufficient to establish marriage relation. Myatt vs. Myatt, 44 111. 473. If the relation of laAvful marriage has actually been created, the subsequent admissions of the Avife to the contrary, no matter if solemnly and deliberately made, can have no effect to dissolve the mai-riage tie to relieve the other party from the obligation and dutA' of a husband and father. Huteliinson vs. Hutchinson, 196 111. 432. The fact of marriage is not shown Avhere there is no proof that a license Avas issued, the officiating minister is not produced as a Avitness nor any attempt made to account for his absence, and when the letters, business transactions, frequent declarations and various Avritings signed by complainant subsequent to the date of the alleged marriage are inconsistent with it, Knorst vs. Knorst, 181 111. 347. MARRIAGE 831 Presumptions and Burden of Proof : — As to Existence and Continuance of Marriage: A woman's marriage will not be presumed, but once shown will be presumed to continue. Erskine vs. Davis, 25 111. 251. The presumption of coverture is prospective from time cover- ture is shown to exist, and not retrospective. Erskine vs. Davis, 25 111. 251. When evidence of former marriage is clear, it overcomes any presumption against existence of such former marriage, arising from fact that a second nuirriage has actually taken place. Kesuick vs. Eesnick, 126 App. 132. In many cases the presumption in favor of innocence and agaiiist immorality and guilt is so strong as to give rise to the presump- tion of a marriage; but no such presumption will arise if it will involve one of the parties in guilt, — as when a man is cohabiting with two women, or when one of the parties has been proven to be married to some one else. Cartwright vs. McGowan. 121 111. 388. — From Cohahitaiion and Circumstances: Marriage may be presumed from cohabitation, name, reputation and other circum- stances, in civil cases. Dowry vs. Coster, 91 111. 182; Miller vs. White, SO 111. 580; Kepler vs. Eker, 23 App. 643 ; Hooper vs. McCaffery, 83 App. 341. But is not sufficient in actions for criminal conversation, or in prosecutions for bigamy and adultery. Dowry vs. Ooster, 91 111. 182; Miller vs. White, 80 111. 580; Kepler vs. Elzer, 23 App. 643; Hooper vs. McCaffery, 83 App. 341. Where parties competent to marry have agreed to marry at some future time, and they afterwards have copula, lawful only in married state, in absence of evidence to contrary, they will be presumed to have taken each other for husband and wife, and changed their future promise to marry to one of present mar- riage. In such case, the copula will be presumed to have followed the then present assumption of the marriage relation, and to have been the consummation of the actual marriage. Cartwright vs. McCown, 121 111. 388. Such presumption may be overcome, as cohabitation may be meretricious as well as matrimonial. Daurence vs. Daureuce, 164 111. 367; Myatt vs. Myatt, 44 Til. 473. The presumption in favor of marriage from evidence of cohabi- tation, is rebutted and overcome by proof of its being meretricious in its inception. AVhen shown to have been illicit in its origin, it will be presumed, in absence of anytliing showing otherwise that its continuance was of the same character and illegal. Desher vs. Desher, 159 App. 432; Cartwright vs. McGown, 121 111. 388; Eoljinson vs. Eobinson, 188 111. 371. Such inference is destroyed by evidence that no marriage was, in fact, ever solemnized. Port vs. Port, 70 111. 484. The presumption of marriage arising from cohabitation and repute is rebutted where the woman thereafter abandons the man, resumes her maiden name, does not look to him for support or 832 MARRIAGE hold any communication with him, and he subsequently is actu- ally married to another woman. Maher vs. Maher, 183 111. (51. The presumption of marriage arising from cohahitation and marriage relations may be overcome by other presumptions spring- ing from acts and declarations of parties after cohabitation be- tween them has ceased. In re Estate of Maher, 204 111. 25. The presumption of marriage, arising from cohabitation, re- pute and declarations, is rebutted by a similar relation subsequently sustained to another person. Hilar vs. People, 156 111. 511. — As to Validity of Matriage: Upon proof of marriage, every presumption is in favor of its validity. Barber vs. People, 203 111. 543; (Jartwright vs. McGown, 121 111. 388; Hoch vs. People, 219 111. 265; Winter vs. Dibble, 251 111. 200; XIII 111. Notes, 396, § 21. And this applies to second marriage. Coal Eim Co. vs. Jones, 127 111. 379. "Where marriage ceremony is shown, the law raises a strong presumption in favor of its validity. Eeifsehneider vs. Eeifsehneider, 241 111. 92; Sokel vs. People, 212 111. 238; Jones vs. Gilbert, 135 111. 27. Where celebration of marriage is shown, everything necessary to its validity will be presumed. Eeifsehneider vs. .Eeifsehneider, 241 111. 92; Barber vs. People, 203 111. 543. It will be presumed parties were competent to marry. Cartwright vs. McGown, 121 111. 388; Sokel vs. People, 212 111. 238; Winter vs. Dibble, 251 111. 200. But such presumption is not conclusive. Barber vs. People, 203 111. 543. Where it is charged that two successive marriages have taken place, the presumption of the legality of each is equal. Lowery vs. People, 172 111. 466. Bigamy is not presumed, but the presumption is in favor of innocence and of the legality of the marriage which was formally solemnized. Murphy vs. People, 213 111. 154. The presumption of a valid marriage, arising from proof of the ceremony ceases, and the burden shifts to party asserting it, where it appears that the wife of the alleged husband, by a for- mer marriage, is living, has been true to her vows, and that such first marriage was not dissolved in the jurisdiction where she lived. Cole vs. Cole, 153 111. 585. — As to Death or Divorce of Prior Husband or Wife: General presumption is that life continues for seven years after party is last heard from, and after that, death is presumed. Johnson vs. Johnson, 114 111. 611. But there is no presumption that life continued through the entire period. Johnson vs. Johnson, 114 111. 611. Nor does the law raise any presumption as to time when, within the seven years, death in fact occurred. Johnson vs. Johnson, 114 111. 611; Cf. Eeedy vs. Millizen, 155 111. 636. MARRIAGE 833 The law presumes that parties in contracting marriage and in subsequently cohabiting, are innocent of innnorality or crime. Johuson vs. Johubou, 11-i ill. 611. But where there are no circumstances to aid the presumption of the continuance of life, the presumption of innocence and of validity of second marriage prevails over presumption of contin- uance of life for seven years. Joliiisou vs. Johnson, 114 111. 611; Schmisseur vs. Beatrie, 147 111. 210. Courts will often presume, in favor of a second marriage, the death of a prior husband or wife, when not heard from for a much less period than seven years. Cartwright vs. McGown, 121 111. 388; Hoeh vs. People, 219 111. 265. When a first marriage is proven, there is a presumption in favor of its validity, but where a first wife is living before a second mar- j-iage, there is a presumption of continuance of life. Hoch vs. People, 219 111. 265. If a prior marriage is shown, the death or divorce of the for- mer spouse will be presumed. Winter vs. Dibble, 251 111. 200; Stein vs. Stein, 66 App. 526; John- son vs. Johuson, 114 111. 611. Courts will often presume a previous divorce in order to sus- tain the second marriage. Cartwright vs. McGown, 121 111. 388; Potter vs. Clapp, 203 111. 592. The two marriages being established, and the existence of a first wife at time of second marriage also being proven, a presump- tion arises in favor of a divorce from first wife, in order to sus- tain the second marriage. Schmisseur vs. Beatrie, 147 111. 216; Cf. Hoch vs. People, 219 111. 265. It will not be presumed in aid of a common law marriage, that a subsequent ceremonial marriage of one of the parties was a bigamous one, since the presumption is in favor of innocence and of validity of marriage formally solemnized. Murphy vs. People, 213 111. 154. Presumption in favor of innocence and against immorality does not arise if it will involve one of the parties in guilt. Cartwright vs. McGown, 121 111. 388. — As to Coidinuance of Meretricious Felation: Cohabitation meretricious in its inception is presumed to continue so until proven to have become matrimonial, which fact may be shown by direct or circumstantial evidence, and is evidenced by a subsequent law- ful marriage between the parties. Potter vs. Clapp, 203 111. 592. The presumption of the continuance of a relation meretricious in its inception is overcome by the evidence that after the agree- ment to live together as man and wife, the woman then being an inmate of a house of ill-repute, the parties immediatel.y moved to respectable location, and lived together openly as man and wife. Elzas vs. Elzas, 171 111. 632; Crymble vs. Crymble, 50 App. 544. — Burden of Proof: "Where a legal divorce, granted before the second marriage, is offered as a defense, the burden is on party asserting same to prove the validty of the decree. People vs. Spoor, 235 111. 230. Ev.— 53 834 MARRIAGE The burden of showing invalidity of marriage is upon party asserting same. Eeifschiieider vs. Eeifsehneider, 241 111. 92; Jones vs. Gilbert, 135 111. 27; Potter vs. Clapp, 203 111. 592; Johnson vs. Johnson, 114 111. 611. And in bill for divorce on grounds of impoteney, burden is on complainant to establish impoteney and that same is incurable. Lorenz vs. Lorenz, 93 111. 376; Kinkaid vs. Kinkaid, 256 111. 408. "Where the evidence establishes a contract of marriage pe)- verba iie presenti, one contending that such contract falls within the restrictions imposed by the state where the marriage took place, has the burden of proof upon that point. Laurence vs. Laurence, 164 111. 367. The law is so positive in requiring a party, who asserts the ille- gality of a marriage, to take the burden of proving it, that such requirement is enforced even though it involves the proving of a negative. Schmisseur vs. Beatrie, 147 111. 210. Thus, one attacking a ceremonial marriage upon the ground that the husband, at the time, had a former wife living, who did not get a divorce from him until two years later, has the burden of proving that the husband had not been divorced from such former wife before the second marriage. Potter vs. Clapp, 203 111. 592. But party is not required to make plenary proof of such nega- tive. It is enough that he introduce such evidence as, in absence of all counter testimony, will afford a reasonable ground for presuming that the allegation is true. Schmisseur vs. Beatrie, 147 111. 210. Proof of a prior marriage and that first w'ife had not obtained a divorce is not sufficient to overcome presumption. Coal Co. vs. Jones, 127 111. 379. A bill for divorce and proceedings showing its dismissal with- out a decree, together with proof that parties had lived all their lives in same county and no entries appeared of record in any suit between them is sufficient to show that no divorce had been granted. Schmisseur vs. Beatrie, 147 111. 210. When evidence is sufficient to overcome presumption in favor of a divorce, burden then shifts to party defending validity of second marriage to prove there had been divorce. Schmisseur vs. Beatrie, 147 111. 210. Competency of Witnesses as to Marriage: — Widows: In proceeding against heirs for partition, where complainant seeks to establish the fact of her marriage to the deceased land owner, she is not a competent witness as to such fact, nor are the ex parte affidavits of other witnesses as to that fact competent to be considered by the master. Crane vs. Stafford, 217 111. 21. A woman whose claim as being the lawful wife is denied by others having or asserting interests, as heirs, in the estate of her alleged husband, is incompetent to testify to the fact of her mar- riage, in proceeding in which she seeks, as distributee, a portion MARRIAGE 835 of all his personal property, uutil her status as widow has beeu established by the adjudication of a competent court. In re Estate of Maher, 210 111. 160. One who, as widow of a deceased person, in prosecuting a suit against which her adversaries are defending as heirs, is not com- petent to testify in her own behalf until the fact of her marriage is proven or conceded, nor, in such case, is she competent to prove the marriage itself. Laurence vs. Laurence, 164 111. 367; Overrul. Brown vs. Brown, 142 111. 409. ■ — Former Sijouse: In prosecution for bigamy, the woman alleged to be former wife is incompetent as a witness against defendant. Hiler vs. People, 156 111. 511, The lawful wife of one accused of bigamy is not a competent witness against him, and her incompetency^ cannot be waived by him. Barber vs. People, 203 111. 543. — Second Spouse: Proof of a former marriage and living wife being made aliunde, the supposed second wife becomes a compe- tent v/itness to admissions by the alleged husband, during cohabi- tation, that he was never divorced from the first wife. Oole vs. Cole, 153 111. 585. A woman who has been married to accused is prima facie his lawful wife and incompetent to testify against him until fact that the marriage was bigamous is established, in which case she be- comes competent to testify as to all matters except the fact of the first marriage, which must be established by other evidence. Hooh vs. People, 219 111. 265. In i^rosecutiou for bigamy, if the first marriage is established by competent evidence, the second wife is a competent witness to testify to the second marriage; and if no objection is made to her testifying to the first marriage, the admission of such testi- mony cannot be successfully urged as error. Barber vs. People, 203 111. 543. When a second wife is offered as a witness in criminal prosecu- tion against her husband, who, it is claimed, has another wife living and undivorced, the question of her competency is for the court, and in deciding that question the court is not only judge of the law but also of the questions of facts necessary to be deter- mined. Hoch vs. People, 219 111. 265. Proof that the accused had been married before and that the first wife is living and undivorced overcomes all presumptions in favor of the validity of his subsequent marriage to the person offered as a witness against him, including any presumption as to the death 'or divorce of the first wife. Hoch vs. People, 219 111. 265. In determining the competency of an alleged wife as a witness, the court must act upon the evidence as presented at the time of the ruling, and if there is evidence establishing a former mar- riage of accused and that the first wife is still living and undi- vorced, it is not error to permit the wife of the bigamous marriage 836 MASTER AND SERVANT to testify, but all questions of fact as to either marriage must be left to the ultimate determination of the jury, under proper in- structions. Iloch vs. People, 219 111. 265. MASTER AND SERVANT See Work and Services. MAYHEM See Intent. Weight and Sufficiency: Tile proof must show that the means were adequate and that the assailant intended to employ them for the purpose of mayhem. Proof that the accused threw red pepper at the eyes of the person assaulted does not sustain a conviction for attempt to com- mit mayhem, where the evidence shows that the etfect of red pep- per is only to inflame the eyes. Dahllier^ vs. People, 225 111. 485. Expert and Opinion : A physician was permitted on behalf of People to state that in his opinion red pepper in the eye would destroy sight. Defense was permitted to show by professor of pharmacology that he had never known or read a case of the sight being destroyed by red pepper; that he had made diligent search of the books and medical reports for such a case ; and that when a boy he had accidentally gotten red pepper in his eyes and the only result was inflammation. Another witness testified to experiments with red pepper in his own eyes on the morning of the tvial and at other times. Dahlberg vs. People, 225 111. 485. MECHANICS See Expert anl Opinion, Books, Experiments. MEDICAL AND SURGICAL SERVICES See Physicians and Surgeons. Recovery as Damages : To enable plaintiff to recover for expenditures for medical serv- ices, it is necessary for him to prove that such services were made necessary because of the injury inflicted by the defendant, and that the fees were reasonable for the services. It will not be sufficient for him to prove merely that he has paid a certain phvsician's bill. Aniniin vs. Chi. Traftion Co., 243 111. 263; North Chi. St. Ry '~!o. vs. Cotton, 140 111. 486. MEDICAL AND SURGICAL SERVICES 837 Plaintiff must prove two things: First, that he has paid or become liable to pay a specitic amount; and second, that the charges made were the usual and reasonable charges for services of that nature. He could recover no more than the amount which he had paid or become liable to pay, even if it were less than the usual and reasonable charges for such services; and on the other hand, he could not recover more than such usual and reasonable charge even if he had paid more. Schinitt vs. Kurrus, 234 111. 578 ; Cf . Chi. City Ey. Co. vs. Menely, 79 App. 679. Evidence of charges is admissible without first showing same are customary and usual where there is no usual or customary charge in the locality for like services. Fleming vs. Cli'i. City Ey. Co., 163 App. 185; McCarthy vs. Spring Valley Coal Co., 149 App. 275. — Payment: It is not necessary that proof should show pay- ment of bills, it being sufficient that plaintiff has incurred a lia- bility for such aid. C. & E. I. E. Co. vs. Cleminger, 178 111. 536. — Plaintiff Married Woman: The fact that the p>laintiff is a married woman, residing with her husband, does not render in- competent the testimony of her attending physician as to his charges for treating the injury, as under our statute she might be liable for such charges as well as her husband. W. Chi. St. Ey. Co. vs. Carr, 170 111. 478. — Incurred After Suit Brought: If plaintiff has not recovered of his injuries at the time he brings suit, it is proper to allow him to prove that he has incurred doctors' bills and drug bills after the commencement of the suit, in attempting to be cured, even though the physician and druggist who testify to the amount of their bills fail to state how their bills should be divided with ref- erence to the time suit was begun. Sturm vs. Consolidated Coal Co., 248 111. 20. One injured by the wrongful act of another may recover all the reasonable doctor's and surgeon's fees . necessarily incurred in effecting a cure, and if further expenses for a surgical opera- tion Avill be necessary, he may prove that fact for the considera- tion of the jury. Chi. City Ey. Co. vs. Henry, 218 111. 92; Gon. Coal Co. vs. Haenni, 146 111. 614; Village of Sheridan vs. Hubbard, 119 III. 307. To justify a recovery for future damages the law requires proof of a reasonable certainty that they will be endured in the future, and hence, testimony that an abrasion of the skin on the arm and a sprain of the ankle of plaintiff's paralyzed side might aggravate the paralysis is not admissible, particularly where the witness testifies that he is not an expert on the subject and has no opin- ion on the subject, and cannot tell what the probabilites would be. Amann vs. Chi. Trae. Co., 243 111. 263. Where there is no evidence that a surgical operation upon the plaintiff had been' performed, or is even contemplated or required, evidence that a man in the station of life of plaintiff ' ' would have 838 MEMORANDUM to have" certain sum to be operated upon by a competent surgeon is incompetent. Chi. City Ey. Co. vs. Henry, 218 111. 92. — Bight of Physician to Practice: Between third persons, the question of the physician's qualifications arising only collaterally, his right to practice is presumed. It being shown that he is a physician and surgeon by profession and that he has practiced in the state for a length of time, is prima facie sufficient at least to establish the proper qualification. Chi. City Ey. Co. vs. Cotton, 140 111. 486; Tichenor ^g. Newman, 186 111. 264 ; City of Chicago vs. Wood, 24 App. 40. MEDICAL BOOKS See Books, Expert and Opinion. MEMORANDUM See Books of Account, Ancient Documents, Statute of Frauds. Requisites : — Made by Witness Himself: Witness may refresh his recollec- tion from a memorandum which he has testified was made by himself from his own memory. Calahan vs. Conrau, 172 App. 261; McCabe vs. Swift, 143 App. 404. To allow a witness to use a writing to refresh his recollection, it is not necessary that it should have been made by the witness himself, provided, after inspecting it, he can speak to the facts of his own recollection. Delbridge vs. L. H. B. & L. Assn., 98 Aj^p. 96; Lawrence vs. Stiles, 16 App. 489. — Time of Making: Must have been made at time when wit- ness had the facts fresh in mind. McCabe vs. Swift, 143 App. 404; Woods vs. T. St. L. & W. Ey. Co., 159 App. 209; Biedt vs. Simpson, 95 App. 333; Kunder vs. Smith, 45 App. 368; Fitzgerald vs. Benuer, 219 111. 485; Diamond Glne Co. vs. Wietzchowski, 227 111. 338; XIV 111. Notes, 1137, §§ 193-197. Where a witness has no independent recollection of the facts, but states that he reduced them to writing at a time when he had a per- fect recollection of them, he may refer to such writing. Seaverns vs. Tribby, 48 111. 195; FitzGerald vs. Benner, 219 111. 485. And where writing is contemporaneous with the facts. Woods vs. T. St. L. & W. Ey. Co., 159 App. 209; W. Chi. St. Ey. Co. vs. Kronskiusky, 86 App. 17. Certificate of architect showing deduction for material and labor not furnished according to contract, made upon personal examin- ation and while matters were fresh in his mind, may be used by him to refresh his memory in testifying in suit by contractor against owner for balance due on contract. Saunders vs. Hutchinson, 26 App. 633. — Memoranrlum Made dy Another: A witness will not be per- mitted to testify from notes and memoranda which he had made MEMORANDUM 839 from writings prepared by other persons, it not appearing he had any personal knowledge of the matters eontained in the writing. Scaverns vs. Tribby, 4,S 111. 195; Haish vs. Dreyfus, 111 App. 44; Kolber vs. Frankenthal, 159 App. 882. But if he can, from an inspection of such writing, speak of the facts from his own recollection, or having seen the writing at a time when the facts therein stated were fresh in his recollection, and he knows the writing to be a true statement, he may use such memorandum. Bredt vs. Simpson, 95 App. 333. Where an entry is made by one, in the performance of his duty, of facts reported to him by another in the discharge of a duty devolving on such otlier by virtue of his employment, such entry is admissible, but preliminary to the admission of such evidence, it should be shown by the one making the report, if he be living, that such report was true. Where the clerk who makes the entries has no knowledge of their correctness, but makes them as the items are furnished by another, it is essential that the party furnishing the items should testify to their correctness, or that satisfactory proof thereof, such as the nature of the transaction is reasonably susceptible of, from other sources, should be produced. Griffith vs. San. Dist., 174 App. 100; Trainor vs. CI. A. Build. Assn , 204 111. 616. — Witness' Knowledge of Contents: A witness cannot testify from a writing when he has no personal knowledge of the truth of the contents of such writing. Keitli vs. Mafit, ."^^S 111. 223 ; Eussell vs. Stove Co., 120 App. 23. In using memorandum, witness must be able to state he remem- bers the facts. If he has no recollection of the circumstances and can only say they are true because he found them on his memo- randum, he Mill not be allowed to speak from same, nor read as independent evidence. Colber vs. Frankenthal, 159 App. 382; C. & A. Ey. Co. vs. Adler, 56 111. 344; Seaverns vs. Tribby, 48 111. 195; FitzGerald vs. Benner, 219 111. 485; Ry. Co. vs. MeCahill, 56 111. 28. If a witness' memory is not refreshed by the use of a memo- randum, so that he then has a present recollection, and if a witness has no recollection independent of the memorandum, it is improper to permit him to testify with reference to the contents of such memorandum. People vs. Maddox, 162 Apji. 95. — Correctness: A witness must be able to state the writing is a true statement, Dorranee vs. Dearborn Pov^er Co., 233 111. 354; Diamond Glue Co. vs. Wietzychowski, 227 111. 339; C. & W. Coal Co. vs. Liddell, 69 111. 639; C. & A. Rv. Co. vs. Adler, 56 111. 344; Elston vs. Kennieott, 46 111. 187; MeCabe vs. Swift, 143 App. 404. ]\Iemorandum must have been correctly made, and true when made. C. & A. Ry. Co. vs. Adler, 56 111. 344; Woleott vs. Heath, 78 111. 433. When plaintiff makes memorandum from own entries, to the accuracy of which he swears from his own knowledge, the same may be used. Seaverns vs. Tribbey, 48 111. 195. 840 JIEMORANDUII — Memorandum of Lost Conveyance: In testifying to contents of lost instruments of conveyance, a witness may refer to notes made by him, and known to be correct, though such notes were not made as abstracts of title. liiisli vs. Stanley, 122 111. 406. Rig-ht to Use : — In General: Memorandum may be used for purpose of re- freshing memory of witness. FitzGeiald vs. Benuer, 219 III. 485; Brown vs. Galesburg Brick Co., 132 111. 648; Seaverns vs. Tribbey, 48 111. 195; Kunder vs. Smith, 45 App. 368 ; Stein vs. Elec. Co., 152 App. 392. A witness, in giving testimony of lost writing, may make use of any memorandum to refresh his memory. C. & A. Ey. Co. vs. Adler, 56 111. 344; Dunlop vs. Berry, 5 111. 327. Memoranda and entries made at or about the time of the trans- actions to which they relate, in the usual and regular course of busi- ness, and of the employment and duty of the person w^ho made them, are admissible as part of the res gestae. FitzGerald vs. Beuner, 219 111. 485. Witnesses may refresh recollection by reference to entries made by themselves in the due course of business, on the books of their firm. Hodgkins vs. Smith, 104 App. 420. A witness may refresh and assist his memory by the use of a written instrument, memorandum or entry in a book ; but after in- spection of such writing, he must be able to speak as to the facts from his own recollection. Elston vs. Kennicott, 46 111. 187. In action to recover loss of property by fire, resulting from neg- ligence of railroad company, it is proper to permit plaintitf, in giving his testimony, to refresh his memory from a memorandum he had made of the articles lost by the fire. In such case, held not improper to allow witnesses to testify to the loss of articles not included in the declaration, as being part of the res gestae, but the jury could not allow for any articles not so embraced. C. & N. W. Ey. Co. vs. McCahill, 56 111. 28. In action on contract, a witness may refresh his recollection as to dates and weather conditions by reference to a memorandum book, in which he made entries in the usual course of business as the work under such contract progressed. FitzGerald vs. Benner, 219 Til. 485. "Where a witness, on his direct examination, simply refers to memoranda to refresh his memory, and then testifies to his recol- lection thus aided, if such memoranda are given in evidence, on his cross examination, at instance of adverse party, the latter cannot complain of their admission. Bush vs. Stanley, 122 111. 406. — Necessity for Inrlepcndcnt Recollection: A writing may properly be used for purpose of refreshing the memory of a wit- ness where he is able, after inspecting the writing, to testify to the facts from present recollection, or where, after inspecting the M'riting he still has no independent recollection of the facts therein ME:\I0RANDUM 841 stated, but is able to state that he correctly reduced them to writ- ing at the time of the occurrence or within such time afterwards that he then had a perfect recollection of them. Diamond Glue Co. vs. Wietzyehowiski, 227 111. ',V^9; Com. Co. vs. Oregon Short Line, 174 App. 375; (Jf. Kunder vs. Smith, 45 App. 368. A witness can testify to such facts only as are within his own knowledge and recollection, though he is allowed to refresh his memory by the use of memoranda, but after the inspection of the writing, he must be able to speak from his own recollection of the facts. Elston vs. Kennicott, 46 111. 187; Torpedo Top Co. vs. Insurance Co., 162 App. 338. AVhere a witness recollects having seen the writing before, and at time of testifying, has no independent recollection of the facts men- tioned in it, but testifies that, at the time, he knew its contents to be correct, he may use same in testifying. Lawrence vs. Stiles, 16 App. 489. A wdtness may refresh his recollection of former testimony of de- ceased witness by referring to his minutes or memoranda made by him, but cannot speak from them or give them in evidence ; he must speak from his own recollection of the substance of his testimony. M. P. Ey. Co. vs. Keep, 22 111. 9; C. & E. I. E. E. Co. vs. O'Connor, 119 111. 586; Overtoom vs. C. & E. I. E. R. Co., 181 111. 323. The copy of a writing or account, as well as the original, may be referred to by a witness, if his memory, refreshed thereby, enables him to testify from his own recollection of the original facts, inde- pendently of his confidence in the accuracy of the copy, but he is not allowed, in such case, to read from his copy. The original entries, if shown to be correctly made, may be read in evidence, but not a copy of them. Bonnett vs. Glattfeldt, 120 111. 166. The testimony of. an elevator inspector as to the condition of the elevator, based entirely upon a memorandum, should be excluded when he admits that even after an inspection of the memorandum, he has no independent recollection of the facts, and where he does not testify that the memorandum was true and correctly stated the facts at the time it was made, and a refusal to exclude such testi- mony is not justified by the fact that he testified without the memorandum as to his name, his occupation, and that he remem- bered the dampness and general surroundings when inspecting the elevator. Diamond Glue Co. vs. Wietzychowski, 227 111. 339. On issue whether deposit was made in bank, the figuring book which tended to fix the date and was used by clerk in testifying, is admissible in connection with his testimony, when, after referring to it, he was still unable, of his independent recollection, to swear to the date. Lawrence vs. Stiles, 16 App. 489. Counsels notes of deceased witness' testimony, taken at former trial and used by him for puiTDOse of refreshing his recollection in testifying at suljsequent trial to such former testimony, may be 842 MEMORAxXDUM read in evidence but not introduced as evidence per se, and may be taken by jury as part of his testimony. M. P. Ey. Co. vs. Keeh, 22 J 11. 9. The record kept in a power plant, and claimed to show the figures of the drafts of a furnace from time to time, cannot be read from by witnesses who put down the figures, where the wit- nesses do not speak from any independent recollection and there is no evidence that the record is a correct record of the facts. Dorrance vs. Dearborn Power Co., 233 111. 354. — Right of Cross Examination: If a witness testifies to data by referring constantly to memoranda, opposing counsel is entitled to its possession for purpose of cross examination, when it appears witness had no independent recollection of the data he has testified to. Harman vs. I. & E. Coal Co., 237 111. 36. If a witness knows that the facts stated in a memorandum were recorded at a time when they were fresh in his memory, and knows that the memorandum would not have been made unless the facts stated were true at the time, he may be allowed to use the mem- orandum providing it is produced with an opportunity for cross examination as to same. Diamond Glue Co. vs. Wietzychowski, 227 111. 339. Wliere books and documents are voluminous, schedules showing data and results may be used by a witness in testifying, but even in such case, the originals should be at hand, so that the opposite party may have an opportunity to examine them to verify the correctness of such schedules. Doyle vs. I. C. K K. Co., 113 App. 532; Harney vs. Sanitary Dist., 260 111. 54. — Rigki to Testify as to Contents: "Witness cannot testify as to contents of memorandum. People vs. Maddox, 162 App. 95. — Memoranda Containing Opinions: Memoranda prepared by witness as to value of goods is not admissible, and evidence of opin- ion of witness, being mere repetitions of the valuation contained upon a paper he has examined, is incompetent. I. C. R. R. Co. vs. Seitz, 105 App. 89. — As Independent Evidence: A mere memorandum is not admissible as independent evidence, though proven by the person who made it, but only for purpose of refreshing the recollection of the witness. Cold Storage Co. vs. Warner, 78 App. 577. While not admissi])le as independent evidence, it may be admitted when witness has no recollection except accurate reduction of trans- action to writing. Com. Co. vs. Oregon Short Line Co., 174 Apji. 375; Davis vs. Vandalia R. R. Co., 168 >4pp. 621; Calahan vs. Conran, 172 App. 261; Kent vs. Mason, 1 App. 466; Ryan vs. Miller, 153 111. 138. And then only as corroborative evidence. Kunder vs. Smith, 45 App. 368. Where witness testifies from book, aside from which he has no ME^rORANDUM 843 independent recollection, after such testimony, the book itself may be introduced in evidence. Calalian vs. Conian, 172 App. 261. Books containing memoranda, attached to deposition, are admis- sible as independent evidence and may be taken by the jury, when detached from the deposition. Standard Starch Co. vs. McAlullen, 100 App. 82. — Necessity of Producing Memorandum: A witness may, for the purpose of making his statements intelligible and giving coher- ence to such of them as are clearly admissible, properly speak of the execution of deeds, the giving of receipts, the writing of a let- ter, and the like, without producing the writing referred to. Ref- erence to such writings as mere inducement to the material parts of a witness's testimony may be allowed. Massey vs. Farmers' Natl. Bank, 113 111. 334. — Boohs of Daily Entries: Books in which ciaily entries of busi- ness transactions are made, may be used by witnesses for purpose of refreshing recollection. Wolcott vs. Heath, 78 111. 433 ; Sullivan vs. Miller, 169 App. 607. — Copies of Memoranda : A witness may make use of a copy of an original memorandum to refresh his memory. But, unless he can give a satisfactory reason for using the copy, that fact might impair the weight of his evidence with the jury, and would go to the credit but not to the competency of his testimony. Before a witness can be permitted to refresh his memory from the copy, he must be clear and explicit in his evidence that it is truly transcribed from the original, and that the original was cor- rectly made and was true when it was made. C. & A. E. E. Co. vs. Adler, 56 111. 344. A copy of a writing or account, as well as the original, may be referred to by a witness, if his memory, refreshed thereby, enables him to testify from his recollection of the original facts, independ- ently of his confidence in the accuracy of the copy, but he is not allowed, in such case, to read from the copy. The original entries, if shown to be correctly made, may be read in evidence, but not a copy of them. Bonnett vs. Glattfeldt, 120 111. 166. A copy, proven to be correct, of a lost memorandum, is admissible in evidence in connection with the testimony of the witness making it. Eyan vs. Miller, 153 111. 138. A witness should not be permitted to refer to memorandum which is copy of records, wdien it does not appear that tlie original records were made in the ordinary course of business, by persons whose duty it was to make them, and that they were made at the time of the occurrence of the transactions which they purport to record. Doyle vs. I. C. E. E. Co., 113 App. 532. Where destruction of memorandum is shown, inventory book containing copy of same, is admissible where accuracy and correct- ness of original memorandum, and also copy transcribed in the book, is established. Sherman vs. Pardridge, 177 App. 304. 844 MENTAL AND PHYSICAL STATES MENTAL AND PHYSICAL STATES See Books, Age, Expert and Opinion, Credibility, Sanity and Insanity, Wills, Conclusions of Witnesses, Intoxication, Deeds, Res Gestae, Intent, Cross Examination. ADMISSIBILITY OF EVIDENCE. Statements and Declarations : — In General: Evidence oi' plaintiff's complaint as to pain and suffering is competent on behalf of plaintiff'. The weight of such testimony is for the jury. City of Bloommgton vs. Osteile, 139 111. 120. Declarations, to be admissible, must be confined to the statement of complaint, or exclamations of present existing pain and suffering and not to the past, nor to the manner and circumstances of receiv- ing the injury. W. CJhi. St. Ey. Co. vs. Cair, 170 111. 478. Statements of pain and suffering, past or present, when not made to a physician or medical expert to enable him to form an opniion of the injury, with a view to treatment or other legitimate pur- poses, are inadmissible unless part of the res gestae. W. Chi. St. Ey. Co. vs. Kennelly, 170 111. 508; Globe Ace. Ins. Co. vs. Gerisch, 163 111. 625. Where a witness who visited plaintiff the day after her injury, is asked where plaintiff' complained of pain, her answer that "she complained of her side, and under her spine, in the back and this ankle ; she screamed with the ankle awfully, ' ' is incompetent as being a mere declaration by plaintiff concerning her conditou. W. Chi. St. Ey. Co. vs. Kenuelly, 170 111.. 50S. The exclamations of plaintiff, while in a fit of hystero-epilepsy, and while kicking and striking, calling the name of defendant, tell- ing him to get away from her and other expressions of a similar character, are not admissible in evidence in action of trespass for debauching her. Steurer vs. Eeid, 56 App. 245. The law admits in evidence the declarations of the injured party' as to his physical condition, given to a physician during treatment, because it is presumed that the injured party will not falsify in his statements made to the physician when he expects and hopes to receive medical aid, but no such presumption arises when he is examined by an expert for the purpose of giving evidence in a case about to be tried. Shaugliuessy vs. Holt, 236 111. 485. — As to Cause of Injury: Declarations made by an injured per- son are admissible in evidence when they relate to the part of his body injured, his suffering, symptoms and the like, but not if they relate to cause of injury. Globe Ace. Ins. Co. vs. Gerisch, 163 111. 625; Chi. W. D. Ey. Co. vs. Becker, 128 111. 545; Collins vs. Waters, 54 111. 485; I. C. E. E. Co. vs. Sutton, 42 111. 438; David vs. C. M. A. Co., 166 App. 490; City of Aurora vs. Plummer, 122 App. 143; XII 111. Notes, 407, 408, §§ 175-176. — Made to Lay Witnesses: Statements by injured person as to physical condition, made to lay witnesses are inadmissible. W. Chi. St. Ey. Co. vs. Kennelly, 170 111. 508. MENTAL AND PHYSICAL STATES 845 But mere exclamations of pain, made to lay witness are admis- sible, and such witness may testify, in answer to ((uestion how slie found plaintiff on morning after injury, that she "was complaining awfully bad." W. Chi. St. Ry. Co. vs. Kennelly, 170 III. 508; City of Aurora vs. Pliimnier, 122 App. 143. It is competent for a witness to state that after the injury per- son seemed to be suffering pain but a statement that he complained of having pain is incompetent. Hauley vs. Cliicago City Ry. Co., ISO App. 397; McCambridge vs. Cit,y of Chicago, 178 App. 513. — Made lo Physician: Statements must be made to attending physician during treatment or examination prior thereto, and with- out reference to bringing suit for damages, unless the examination is made at instance of defendant with view to trial. Coburn vs. Moline Ey. Co., 243 111. 448 ; F\ihry vs. Chi. City Ry. Co., 239 111. 548; City of Chicago vs. McNally, 227 111. 14; City of Salem vs. Webster, 192 111. 369; West Chi. St. Ey. Co. vs. Carr, 170 111. 478; Greiuke vs. Chi. City Ev. Co., 234 111. 564; Edward vs. I. C. B. R. Co., 161 App. 630; Collins vs. Waters, 54 111. 485; I. C. R. R. Co. vs. Suttou, 42 111. 438. Statements must be confined to such as are made at time of sickness from which the patient is suffering. Statements of such patients after their recovery are not competent, Winnebago vs. City of Eockford, 61 Ap]>. 656. Declarations as to cause of the injury, although detailed to physi- cian during treatment, are inadmissible. David vs Com. Mnt. Ace. Co., 166 App. 490; Globe Ace. Co. vs. Geriseh, 163 III. 625; I. C. E. E. Co. vs. Sutton, 42 111. 438. Statements of the location of an injury, and existing pain, made to physician during treatment, or upon examination and for pur- pose of ascertaining extent and nature of injury, if made with- out reference to future litigation, may be stated by a physician in giving his opinion of the nature, character and extent of the injury. W. Clii. St. Ey. Co. vs. Carr, 170 111. 478; I. C. E E. Co vs. Sutton, 42 111. 438. A physician who attended plaintiff and who helped pick him up at time of accident, may testif}^ that he cried out at time and de- scribe the pain he suffered. City of Salem vs. Webster, 192 111. 369. Physician testifying as to injuries of plaintiff, may state what plaintiff said to him in describing her condition during actual treatment and in direct connection therewith. Chi. City Ey. Co. vs. Bundy, 210 111. 39. — Declarations of Third Persons: Mental or physical condi- tion of person cannot be proven ordinarily by the unsworn dec- larations of other persons. C. E. I. & P. Ey. Co. vs. Bell, 70 111. 102. So where defense offered to prove that just before the accident the plaintiff, in a saloon, called for a drink of liquor, and that the bar-keeper told him he had enough, which the court excluded, on objection, it was held, that the evidence was not admissible and was properly refused. The fact whether plaintiff was under the 846 MENTAL AND PHYSICAL STATES influence of liquor was subject to proof as any other fact in the case, but could not be proven by declarations of third person. L. E. & W. Ey. Co. vs. Zoffinger, 107 111. 199. — As Pari of lies Gestae: Declarations and exclamations which are of the res gestae of the act are admissible in evidence to prove the physical suffering, condition or injury or the cause thereof, but are only competent when so made. Greinke vs. Chi. City Ey. Co., 234 111. 564; Lake St. El. Ey. Co. vs. Shaw, 203 111. 39; W. Chi. St. Ey. Oo. vs. Kennelly, 170 111. 508. No inflexible rule has been or can be formulated fixing the exact time within which a statement must be made to make it part of the res gestae. Where evidence shows that the shock occasioned by collision, the exclamations of pain, the effort to render help to the injured party, and his statement "explaining and charac- terizing the manner in which the accident occurred," were all sub- stantially concurrent, there was no time for deliberation of fab- rication and they are admissible. Muren Coal Co. vs. Howell, 107 App. 1; Affd., 217 111. 190, Hay- wood vs. Deeriiig Coal Co., 145 App. 506. Declarations so immediately connected with the infliction of the injury as to become part of the res gestae are competent. W. Chi. St. Ey. Co. vs. Carr, 170 111. 478; Shaughnessy vs. Holt, 236 111. 485; City of Chicago vs. McNally, 227 111. 14. A statement made by one deceased, as to the manner in which he sustained the injury which resulted in his death, not at time when accident occurred, but a minute or more afterwards, is not competent as part of the res gestae. Boyd vs. W. Chi. St. Ey. Co., 112 App. 50. The declarations of an injured person, made hours after the injury, as to its cause, are not so connected with the circumstances and time of accident as to be part of the res gestae. Globe Aec. Ins. Co. vs. Gerisch, 163 111. 625. A statement made by an injured man as to manner in which his injury occurred, made to a witness, who was about twelve feet away when the injury occurred, and who ran to the injured man imme- diately and heard the statement, is admissible as part of the res gestae. Muren Coal Co. vs. Howell, 217 111. 190. In action for personal injury received in getting ofi' a street car, testimony that plaintiff answered "Yes" to the question whether she was hurt, asked by witness upon reaching her imme- diately after she fell, is competent as part of the res gestae. Springfield Ey. Co. vs. Hoeflfner, 175 111. 634. Condition Prior or Subsequent to Injury: — In General: Physical condition before and after injury may be shown. Union Traction Co. vs. Lawrence, 211 111. 373; Lauth vs. Trac. Co., 244 111. 244. Testimony of plaintiff's associates as to her appearance, health, disposition, .etc., before and after the injury is admissible, to be considered with all the other evidence. W. Chi. St. Ey. Co. vs. Cahill, 165 111. 496. A plaintiff', in describing the injuries received, and the effect MENTAL AND PHYSICAL STATES 847 which they produced upon body and physical streng+h, may testify as to physical condition before and after the injury. N. Chi. St. Ey. Co. vs. (UUow, IGG 111. 444. Testimony of plaintiff that some three yeai-s after his injury, a small, sharp-pointed splinter (which he testified was bone) worked its way out of his wrist, is not admissible in absence of proof of any injury to the bones of the wrist, other than that the wrist was wrenclied and ftilt weak for a year after the accident, or of expert testimony that such a condition might have resulted from the accident. Kelleher vs. Chi. City Ry. Co., 256 111. 454. Where the declaration alleges that plaintiff has been rendered impotent for the rest of his life, and the evidence tends to show that fact, it is not error to refuse to strike out plaintiff's statement that his virility was "almost entirely gone," made in answer to his at- torney's question, there being evidence tbat up to the time of his injury plaintiff was in perfect health. Proof that plaintiff' was father of one child is properly admit- ted as tending to show the plaintiff' had virility before he was injured, where it is claimed he has been rendered permanently impotent by the injury, provided such proof be properly restricted to that point, and not considered upon the question of damages; nor can defendant complain of plaintiff's answer that his child was dead, where there was no objection to the question and no motion to strike out the answer. Postal Telegraph Co. vs. Likes, 225 111. 249. — Extent of Period: Physical condition of plaintiff one year prior to injury is admissible where defendant offers evidence of his condition at about same time. Village of Warner vs. Wright, 103 111. 298. AVhere plaintiff had a leg amputated ten years before the injury complained of, defendant sought to prove that at a period ante- rior to such amputation plaintiff had some disease which, though dormant; from time of amputation to date of recent injury, may then have manifested itself again, and have been the real cause of some portion of his sufferings. The matter thus sought to be investigated was too remote, and the inference sought to be drawn from it too conjectural. N. C. St. Ey. Co. vs. Cotton, 140 111. 486. — As Showing Condition was Result of Accident: Good condi- tion of health prior to accident and impaired condition subse- quent thereto tends to show that changed condition was result of accident complained of. Chi. U. Traction Co. vs. May, 221 111. 530; Watkiss vs. City of Chicago, 146 App. 562. — To Show Extent, Nature and Pervmnency of In jury: Evi- dence of plaintiff's conduct before and after injury is admissible as tending to show extent, nature and probable permanency of injuries. Chi. Term. Ey. Co. vs. Kotoski, 199 111. 383. — Absence of Complaint: Witness who had visited plaintiff frequently prior to injury may testify that she had never heard plaintiff complain of any sickness. W. Chi. St. Ey. Co. vs. Kennelly, 170 111. 508; ViUage of Warren vs. Wright, 103 111. 298. 848 MENTAL AND PHYSICAL STATES But in anticipation of the defense that plaintiff's ailments ex- isted prior to injiuy for which he seeks to recover, it is improper to permit plaintiff's witnesses to state, on direct examination, whether they had ever heard plaintiff was afflicted with such ailments before his injury. Chi. City Ry. Co. vs. Dhter, 212 111. 174. Permitting husband of plaintiff in personal injury case to state that after her injury, when she walked any considerable dis- tance, she "complained," is not reversible error. Chi. City Ky. Co. vs. Bundy, 210 111. 39. — Manner of Treatment: Evidence that injured party went to Cuba for a more perfect restoration of health, without showing that a change was necessary for a complete recovery, is inadmis- sible and improper, as tending to influence jury to give damages. City of Chicago vs. Allen, 43 111. 496. Trained nurses may testify as to what part they took in treat- ment of plaintiff, and that plaintiff' complained of pain in his back. Horney vs. St. L. & N. Ey. Co., 165 App. 547. — Mental Condition: As tending to show the effect of injury upon mental condition, it is competent to show such condition before the injury, and also continuously from and after the injury, and any witness having any knowledge upon the subject during any part of the time covered by the inquiry is competent to tes- tify, the weight of his testimony being for the jury. Union Trac. Co. vs. Lawrence, 211 111. 373; Chi. Term. Ey. Co. vs. Kotoski, 199 111. 383. EXPERT AND OPINION EVIDENCE. Admissibility: — In General: Wliere question as to physical condition is one not within knowledge of men of ordinary experience, the opinions of physicians having knowledge of such subject, are com- petent. Fuhry vs. Chi. Citv Ey. Co., 239 111. 548 ; City of Chicago vs. McNally, 227 111. 14; Xli 111. Notes, 527, § 410. Evidence of physicians as to physical condition of plaintiff whom they had examined the day before the trial of a personal injury case, is competent if the testimony, taken in connection with that of plaintiff and another witness, sufficiently connects the injuries received by plaintiff with the physical condition found by the physicians to exist. 111. Steel Co. vs. Delae, 201 111. 150. It is competent for an expert witness to state his opinion of caase of plaintiff's physical condition. City of Chicago vs. Bork, 227 111. 60; Shaughnessy vs. Holt, 236 111 485; L. & N. W. Ey. Co. vs. Shires, 108 111. 617; Hobson vs. St.' L. S. & P. E. E. Co., 180 App. 84. — When Manner of Injury Disputed: Where defendant dis- putes the injury, it is improper to permit physician to testify as to permanency of injury. SchlauderVs. Chi. Trac. Co., 253 111. 154. — ^yhen Manner of Injury Not in Dispute: "Where there is no dispute as to manner of injury, the question whether certain pbysical conditions were caused by injury complained of, where determination involves special skill or trade, or knowledge of sci- MENTAL AND PHYSICAL STATES 849 ence, opinions of competent persons are admissil)le, and may be based partly upon the testimony which the witness has heard, describing the manner in which injury was received. But where there is a conflict in the evidence as to the manner of the injury, it is not competent for medical experts to give opin- ions upon such subject. Puhiy vs. Chi. City By. Co., 239 111. 548; Chi. IT. Trac. Co. vs. Eoberts, 229 111. 48l"; City of Chicago vs. Didicr, 227 111. 571 ; Fuhry vs. Chi. City Ey. Co., 144 App. 521; XIV 111. Notes, 528, § 423. — As to Commission of Crime: Physician who has examined alleged victim may give opinion as to whether offense has been committed. Howard vs. People, 185 111. 552. And as to manner in which it was produced. Clark vs. People, 224 111. 554; Cook vs. People, 177 111. 146; Cochran vs. People, 175 111. 28. But i^liysician should not be allowed to give an opinion that a rape was committed. He may state what effects might result from rape but not that the condition he discovered, was in his opinion produced by rape. People vs. Schultz, 260 111, 35. — Eesiilts Attending Injured Condition: "Where physician has testified to examination of injured foot, he may give his opinion as to "medical condition" of foot. Graham vs. Mattoon City Ey. Co., 234 111. 483. Attending physician of plaintiff may testify that injury would impair plaintiff's ability to work when on his feet, but to what extent he could not tell, and that plaintiff was a "cripple." Springfield Con. Ey. Co. vs. Welsch, 155 111. 511. Expert opinion as to the results which might be caused by a strangulated hernia is inadmissible when such strangulation is not a condition peculiar to plaintiff but is common to all hernia, Lanth vs. Chi. Traction Co., 244 111. 244. Death of next child is competent, and it is not too conjectural, where Avitness testifies accident coidd or might have produced sucli rGSiilts Chi. U. Trac. Co. vs. Ertrachter, 228 111. 114. Physicians may testify that first dislocation would predispost' to later ones. Donnelly vs. Chi. City Ey. Co., 235 111. 35. Evil consequences competent, when reasonably certain to occur. City of Chicago vs. Jarvis, 226 111. 614. Thus heart trouble is competent. I. C. E. E. Co. vs. Latimer, 128 111. 163. That plaintiff was suffering from tuberculosis of bones of ankle and instep is competent, where asked as to "medical condition" of foot. Graham vs. Mattoon City By. Co., 234 111. 483. — Medical Terms: It is incompetent to ask expert as to mean- ing of terms applicable to an injury not shown to have been sus- tained. City of Chicago vs. Clarkson, 138 App. 582. Subject of Opinion Evidence: - — Appearance of Plaintiff: In action for personal injury, it is Ev.— 54 850 MENTAL AND PHYSICAL STATES proper to permit a witness to be asked the question how the plain- tiff appeared with reference to pain and suffering. Cicero St. Ey. Co. vs. Priest, 190 111. 59:2. — Period of Gestation: Physician may testify as to whether child has seen full period of gestation. People vs. Jolinson, 70 App. 034. — Results of Injury: Opinions of non-expert witnesses as to injury of plaintiff and its effect upon his health, which consist of statements plaintiff "was suft'eriiig," "was nervous," "in mis- ery," "weak," "feeble," "in distress," "sore," and "in pain" are competent. C. & E. I. E. E. Co. vs. Eaudolph, 199 111. 126. An attending physician may testify that plaintiff's condition of nervousness was result of an injury to the head and the nervous shock sustained in the accident. Fuhry vs. Chi. City Ey. Co., 144 App. 521. — Cause of Injury: An opinion of plaintiff's attending physi- cian that the condition in which he found her on the day of the accident must have been caused by some traumatism or injury is not incompetent, as invading the province of the jury. City of Chicago vs. McNally, 227 111. 14. It is competent for physician having examined the injured part, to state how or by what the injury was caused. I. C. E. E. Co. vs. Smith, 111 App. 177, Where no question is made as to the cause and manner of the accident. Powers vs. City of Chicago, 180 App. 355. In actions of personal injury, it is competent for an expert to express an opinion as to cause of injury, though based upon a personal examination. Village of Chatsworth vs. Eowe, 166 111. 114; I. C. E. E. Co. vs. Treat, 179 111. 576. After an expert has testified to finding certain physical injuries, it is improper to ask him if, in his opinion, a particular accident caused the injury. FitzGerald vs. Chicago, 144 App. 462. Attending physician may give opinion- as to cause of personal injury, where he has sufficient personal knowledge of such injury. Chicago vs. Didier, 131 App. 406. — Permanency of Injury: To permit doctors to speculate as to outcome of injurv is prejudicial error. Lauth vs. Chi.' Traction Co., 244 111. 244. A medical expert who has duly qualified and given basis of opinion, is competent to testify as to permanency of injury. Hirsch vs. Chi. Con. Trac. Co., 146 App. 501. But not as to "tendency" or that certain results were "liable" to happen. Junget vs. A. E. C. Ey. Co., 177 App. 435. — Existence of Pain: Plaintiff called his attending physician, who testified that he had examined plaintiff, who stated symptoms, and that he had suffered pain. Witness was then asked whether plaintiff was feigning or "making believe," to which he an- swered, "No sir; I know he did not. from examination and tests:" Held, that with the explanation as to his means of knowledge, MENTAL AND PHYSICAL STATES 851 there was no error in "admission of the evidence. The answer could only be understood as a deduction or conclusion from the examination and tests made. In such case, the attending phj^sician, having every means of observing the symptoms, may be asked if the patient suffered pain, and his answer in the affirmative can be considered only as an opinion based upon actual facts and tests. It does not even require an expert to know the existence of pain from the nature of the injury and the patient's outward manifestations. C. B. & Q. R. R. Co. vs. Martin, 112 111. 16. Basis of Expert Opinion: — In General: Medical expert may give opinion as to cause of personal injury, predicated upon an examination, facts hypotheti- cally stated, or upon evidence heard in open court and assumed for purposes of opinion to be true. City of Chicago vs. Didier, 131 App. 401. — Objective Symptoms: A physician who has not treated the in- jured person, but who has made an examination to enable him to testify on the trial as to his condition, must base his opinion upon objective and not subjective conditions. He cannot relate nor take into consideration the self-serving statement of the injured person made to him, not with reference to the treatment but with reference to the trial. Fuhry vs. Chi. City Ey. Co., 2.39 111. 548 ; Greinke vs. Chi. City Ry. Co., 234 111. 564; Casey vs.. Chi. City Ry. Co., 237 111. 140; Nau vs. Standard Oil Co., *154 App. 421; Chi. City Ry. Co. vs. Shreeve, 128 App. 462; Chi. City Ey. Co. vs. Manger, 128 App. 512; XII 111. Notes, 531, §444. , ai .,(: But an attending physician may testify as to subjective symp- toms received while treating his patient and not examining her for purpose of giving testimony. Stout vs. Taylor, 168 App. 410; Maxey vs. E. St. Louis, 158 App. 627; Greinke vs. Chi. City Ry. Co., 234 111. 564; Chi. City Ry. Co. vs. Buudy, 210 111. 39. Opinions of expert witnesses should be based upon objective and not subjective symptoms, and should be the expression of the witness from what is manifest to him rather than the words of the person examined. Physicians who had examined plaintiff prior to the trial, but who were not attending physicians during treatment, may express opinions that party was emotional, nervous, lacking in power of concentration, and unable to work at anything reciuiring mental concentration ; and such opinions cannot be said to be based upon subjective symptoms. Physician may be guided in forming his opinion, to some extent, by what plaintiff has said to him in detailing pain and suffering. City of Chicago vs. McNally, 227 111. 14. ^.;;mi-m, Testimony by a physician, who has merely examined plaintiff with a view to testifying, is not admissible where it is based wholly upon his observation of outward manifestations, Avithin plain- tiff's control, such as pressure of hands, turning in of toes, drop- ping the foot when sitting in a chair, dragging the foot slightly when walking, twitching the hands, and the like. Greinke vs. Chi. City Ry. Co., 234 111. 564. 852 MENTAL AND PHYSICAL STATES A physician sent to examine an injured person with view to testifying in an action for damages should not be allowed to testify that she showed nervousness, timidity and fear, that she trembled and shook and shrank away from him and cried out and acted in a frightened manner. Casey vs. Chi. City Ey. Co., 237 111. 140. Testimony relative to test made by reflexing knees must be based upon objective symptoms. Hiisch vs. Chi. Trac. Co., 146 App. 501. Expert must base his opinion on objective and not subjective conditions. Barnes vs. Chi. City Ey. Co., 147 App. 601. — Subjective Symptoms: Subjective symptoms or tests ob- tained from a plaintiff during an examination by a physician for the purpose of testifying upon the trial are inadmissible. Krakowski vs. A. E. C. E. E. Co., 167 App. 469. Where physician examined plaintiff's hand not for treatment but to determine its mobility he cannot on the trial answer the question ' ' Can he flex his finger to his palm ? ' ' the question merely calling for matters purely subjective. Barnes vs. Chi. City Ey. Co., 147 App. 601. A physician who has treated the injured person may predicate his opinion upon subjective as well as objective symptoms, and may state his opinion and his reasons therefor. McCabe vs. Swift & Co., 143 App. 404. — Self Serving Acts and Statements of Injured Party: Expert expressing an opinion cannot take into consideration the self- serving statements of the injured party, made to him, not with reference to his treatment, but with reference to his trial. Coburn vs. M. & W. Ey. Co., 243 111. 448 ; Fuhry vs. Chi. City Ey. Co., 239 111. 548; Chi. U. Trac. Co. vs. Giese, 229 111. 260; Greinke vs. Chi. City Ey. Co., 234 111. 564; C. & E. 1. E. E. Co. vs. Douworth, 203 111. 192 ; Elvvard vs. I. C. E. E. Co., 161 App. 630. Opinion of physician is not competent evidence where it is based upon self-serving statements by patient not made in course of treatment but with a view to enabling physician to testify in ref- erence to the physical condition of the patient. Coburn vs." M. & W. Ey. Co., 243 111. 448 ; Junget vs. A. E. & C. Ey. Co., 177 App. 435; Chi. U. T. Co. vs. Giese, 177 App. 635. Testimony of physicians who examined plaintiff shortly be- fore the hearing of her damage suit, for the purpose of testifying for her as witnesses, to the effect that they made a test upon the person of the plaintiff with tubes respectively containing hot and cold Avater, and that she could not always tell w^hich tube was hot and which was cold, which indicated nervous prostration or neurasthenia, is not competent, even though plaintiff testifies that the answers she gave the physicians when the tests were made were true. Shaughnessy vs. Holt, 236 111. 485. Testimony of a physician who treated plaintiff for his injury, and who has examined him before the trial, to the effect that plaintiff, who was lame, had a curvature of the spine and a degen- eration of the spinal cord, should not be stricken out because he MENTAL AND PHYSICAL STATES 853 had been guided to some extent in his conclusion as to the degen- eration of the spinal cord by what plaintitt' had said to him. Eckels vs. .Mutschall, 230 111. 462. A statement by a physician, testifying as witness for plaintiff, that the latter had lost the power of hearing in his left ear, should be excluded when such testimony is not based upon the physician's actual knowledge but upon declarations of plaintiff. C. & ?]. I. R. R. Co. vs. Donwoith, 20;} 111. 192. Opinions of physicians with respect to plaintiff's injuries, which are based in whole or in part upon declarations of plaintiff, should be stricken out when the fact of their being so based is made to appear upon cross examination, wliere the physicians were not treating plaintiff', but were examining him for purpose of report- ing to his attorneys to enable them to determine upon taking the ease, or for purpose of testifying as witnesses. Chi. U. Trae. Co. vs. Gies-e, 229 111. 260. AVhere a physician, who has examined plaintiff shortly before trial, is asked whether plaintiff then suffered pain, his answer, "She tells me she suff'ers pain," should, on motion, be stricken out, as hearsay. West Chi. St. Ey. Co. vs. Carr, 170 111. 478. Testimony of a physician that a pressure on a certain place in plaintiff's spine caused involuntary contraction of the muscles of the right side and hip, and that the pulse beat went from 80 to 120 on such pressure, cannot be rejected upon the ground that the manifestations were voluntary, even though the witness testified that any one could simulate the motion of the foot and flinch voluntarily. Schmidt vs. Chi. City Ey. Co., 239 111. 494. — Physical Condition: Physician's opinion as to pregnancy of woman must be based upon a physical examination and not upon party's history of the case detailed by her to him. Stevens vs. People, 215 111. 593. A physician may express opinion as to probable cause of physi- cal condition of plaintiff found to exist after examination, when such opinion is based upon objective testimony alone, but a physi- cian who has not treated the injured party but who has made an examination of such party for the sole purpose of testifying as an expert, should not be permitted to express an expert opinion to the jury based upon subjective conditions, and then be allowed to fortify his opinion by stating to the jury such acts of the injured party which could have been purely voluntary and under his control and which rest upon no other basis than his truthfulness. Greinke vs. Chi. City Ey. Co., 234 111. 564 ; Elward vs. I. C. E. E. Co., 161 App. 630. — Physicians' s Knoivledge: Where a physician testified that injuries of plaintiff were permanent and liable to lead to tuber- culosis, but it appeared on cross examination that his opinion was based, in part, upon his knowledge that brothers and sisters of plaintiff had died of tuberculosis, such evidence should be stricken out, but the evidence relating to the permanency of the injury was proper. E. J. & E. Ey. Co. vs. Lawlor, 229 111. 621. 854 MENTAL AND PHYSICAL STATES Witnesses : — -Eight to Compel Giving O'f Tcsiimomj: The right of a court to compel a physician to give expert testimony in answer to a hypothetical question calling for his opinion, extends to suits be- tween individuals and is not confined to criminal prosecutions. Dixon vs. People, 168 111. 179. A physician or surgeon cannot be punished for a contempt for refusing to make a post mortem examination unless paid therefor, nor can he be required to prepare himself in advance for testify- ing in court by making an examination or performing an operation or resorting to a certain amount of study without being paid therefor. Dixon vs. People, 168 111. 179. A physician subpoened and interrogated as an expert witness only, cannot refuse to testify upon the ground that no compensa- tion greater than that allow^ed to ordinary witnesses has been paid or promised him. N. Chi. St. Ey. Co. vs. Zeigler, 182 111. 9. — Osteopath: An osteopath may testify as to declarations of pain and suffering made to him' for purpose of treatment, even though such practitioner may not be regarded, by the medical profession, as a practitioner. Smith vs. Chi. City Ey. Co., 165 App. 190. — -Non-Experts Generally: Competency of non-experts to give opinion as to a person's mental condition is for court. Graham vs. Deuterniau, 244 111. 124. A non-expert witness may express opinion where the subject matter of testimony is such that it cannot be reproduced and de- scribed to the jury precisely as it appeared at the time, as, where the subject is the state of another's health, his ability to work or his apparent suffering, his state of mind, and kindred topics. City of Chicago vs. MeNally, 227 111. 14; W. Chi. St. Ry. Co. vs. Fishman, 169 111. 196. A non-expert witness may testify to the apparent nervousness, excitability, agitation or calmness of another. Dimmick vs. Downs, 82 111. 570. Non-expert witnesses are competent to testify to state of health, hearing, eyesight and ability to work and walk and to use arms and legs naturally. Chi. City Ey. Co. vs. VanVleck, 143 111. 480; C. & A. R. R. Co. vs. Arnold, 46 App. 157 ; Ashley Wire Co. vs. McFadden, 66 App. 26; Supreme Tent vs. Jones, 113 App. 241; Pioneer Reserve Ai-sn. vs.. Jones, 111 App. 156; L. E. & W. Ry. Co. vs. DeLong, 109 App. 241; XII 111. Notes, 522, § 368. Non-experts are competent to testify as to injury of party, its effect upon health, which consists of statements that person was suffering, nervous, weak, feeble, in misery, in distress, sore and in pain. C. & E. I. E. E. Co. vs. Randolph, 199 111. 126; Girard Coal Co. vs. Wiggins, 52 Ajip. 69. That a person was sick, but not as to character of sickness. City of Shawneeto^-sn vs. Mason, 82 111. 337. — Painty Injured: Refusal to strike out the answer "I have been a nervous wreck ever since," to a question put to plaintiff MENTAL AND PHYSICAL STATES 855 as to her physical condition since the injury for wliich she is seeking to recover damages, is not reversible error, where there is other and ample evidence in the record to show her physical con-( dition. C. & J. Elec. Ey. Co. vs. Patton, 219 111. 214. Whether the witness suft'ered pain from a broken arm, is a fact that requires no expert skill to ascertain, nor does it require expert knowledge or skill to determine the fact that he required help to put his coat on or that in consequence of his broken arm his food had to be cut for him. It is competent for him to tes- tify as to his condition resulting, from the injury and the effect produced by it, even though he was aged and infirm and to some extent a paralytic at time of injurv. N. Chi. St. Ey. Co. vs. Cook, 145 'ill. 551. — Persons Having Perisanal Ohscrvation: Non-experts who have had opportunity to observe a person may give their opinions as to his mental condition or capacity, at the same time stating their i-easons and the facts observed on which they base their opin- ions, including conversations, as a part of the observed facts, but to render such opinions admissible they must be limited to con- clusions drawn from the specific facts thus disclosed. Mayville vs. French, 24ri 111. 434; Union Trac. Co. vs. Lawrence, 211 111. 373; Eing: vs. Lawless, 190 111. 520; Amer. Bible Soc. vs. Price, 115 111. 623; Craig vs. Southard, 148 111. 37; Upstone vs. People, 109 111. 169; Eoe vs. Taylor, 45 III. 485; XII 111. Notes, 522,-, § 367. The general rule is that the conclusions of a witness derived from personal observation are admissible in evidence when, from the nature' of the subject matter under investigation, it cannot be stated or described in such language as will enable persons, not eye-witnesses, to form an accurate judgment in regard to it. City of Salem vs. Webster, 95 App. 120; Affd., 192 111. 369. Whether a person was sick O'r not is a: fact requiring no special skill or science to understand, and the fact may be proven by anyone who knows it. Chi. City Ey. Co. vs. Bundy, 210 111. 39; City of Shawneetown vs. Mason, 82 111. 337. It is proper to prove condition of injured person by persons who had observed his physical condition, demeanor and conversation through the year both before and after the time of injury, and to show by them what, if any, change they observed in him after he received the injury. Lanth vs. Chi. Trac. Co., 244 111. 244. Any witness having any knowledge on the subject during any part of the time covered by the inquiry is competent to testify, the weight of his testimony being for the jury. Union Trac. Co. vs. Lawrence, 211 111. 373. Testimony of doctors upon the subject of mental capacity is not entitled to any greater weight than that of laymen who are men of good sound sense and judgment. Austin vs. Austin, 260 HI. 299; Carpenter vs. Calvert, 83 111. 62. Relatives, neighbors and acquaintances of one are competent to testify as to his state of health, hearing, eye-sight and ability to 856 MENTAL CAPACITY work, walk and use his arms and legs naturally and without trou- ble, during a given part or period of time, even though they are not scientific experts in matters relating to human anatomy. They are competent to testify as to what they know from their own per- sonal observation. Witnesses not experts may testify that imme- diately after the accident, the plaintitf was unconscious, and was so, off and on, and most of the time for three weeks thereafter. Chi. City Ey. Co. vs. VanVleck, 143 111. 480. — Nurses: In action for personal injury, the person who nursed plaintiff after the injury may testify whether plaintiff appeared to be suffering pain, and may state such natural manifestations of pain as plaintiff exhibited in connection with the injury, whether by groans, expression of the features or in other ways. Cicero St. Ey. Co. vs. Priest, 190 111. 592. MENTAL CAPACITY See Age, Wills, Sanity and Insanity, Mental and Physical States, Expert and Opinion, Witnesses. MESSENGER Admissibility of Declarations; The fact that a message was sent by one person to another, and the character of such alleged message, cannot be proven by the person receiving such message, where his testimony is based solely upon hearsay statements of the person delivering same. C. & A. E. Co. vs. Jennings, 217 111. 494. MINES AND MINING See Custom and Usages, Expert and Opinion, Habits, Physi- cian AND Surgeons, Wages, Earning Capacity and Domestic Relations. MISTAKE See Reformation of Instruments, Building Contracts, Can- cellation OF Instruments, Parol. MODELS See Experiments, Demonstrative Evidence. MONEY See Larceny, Embezzlement, Value. MONEY COUNTS 857 MONEY COUNTS See Assumpsit, Allegations and Proof, Set Off and Counter- claim. Money Had and Received : — In General: Assumpsit for money had and received may be maintained whenever defendant has obtained money belonging to plaintiff which, in equity and good conscience, he has no right to retain, as in such case the law implies a promise to pay, not- withstanding there was no privity between the parties. First Natl. Bank vs. Gatton, 172 111. 625; Gary vs. Niblo, 155 App. 338. A third person for whose benefit a contract is made may sup- port an action in his own name for a breach of the agreement and it is not necessary for him to resort to a court of equity. The common count for money had and received for the use of another is an equitable form of common-law pleading and will sustain a recovery thereunder. Lawrence vs. Oglesby, 178 111. 122. In an action for money had and received, the main inquiry is "whether the defendant holds money which belongs to the plain- tiff. Prairie State Loan & Bldg. Assn. vs. Gorrie, 167 111. 414. And may be maintained where the plaintiff has a just and legal right to the money. It lies for money which, equitably, the de- fendant ought to refund. Sangamon County vs. City of Springfield, 63 111. 66. Money in the hands of an agent to which a person other than the principal is entitled may be recovered in an action for money had and received where bad faith is shown. Shipherd vs. Underwood, 55 111. 475. — What Plaintiff Must Show: In action to recover for money had and received by defendant for plaintiff' 's use, plaintiff must prove defendant holds money which ex aequo et bono he should pay to plaintiff, the usual test being does the money in justice belong to plaintiff. Eic-holson vs. Maloney, 195 111. 575. The right of recovery in action for money had and received depends upon proof of two things: First, that defendant has actually received the money ; and second, that in equity and good conscience he should pay it to plaintiff. Morris vs. Jamleson, 99 App. 32. An action for money had and received is maintainable when- ever the money of one man has, without consideration, gotten into the pocket of another. Law vs. Uhrlab, 104 App. 263. A common count which declares for money had and received by defendant for use of plaintiff' is not supported by evidence that plaintiff paid monev for use of defendant. Claycomb vs. McCoy, 48 111. 110. Where there is an agreement to pay a certain sum in specified articles of personal property, at agreed prices, on a particular day, a failure to deliver the articles on the day fixed in the agree- 858 MONEY COUNTS ment converts the transaction into a money obligation, and the common counts are sufficient to support the action. McKinnie vs. Lane, 230 111. 544. Recovery on the common counts cannot be had on ground that plaintifl promised to buy back certain stock within a year, where it appears the stock had not been tendered nor delivered to and accepted by defendant. Smith vs. Young, 179 App. 364. — Payment Under Duress: In order to recover for money paid under duress, not only must the duress be established, but it is essential that it appear from the evidence that defendant, who received the money, ought not, in equity and good conscience, be allowed to retain it. The averment that the money sought to be recovered back was money which in equity and good conscience should not be retained is not a negative averment. It is affirma- tive and vital, and cannot be dispensed with in actions of this character, and must be sustained by proof. Koenig vs. Peoples Light Co., 153 App. 432. — -FraAid: A recovery may be had under count for money had and received, where defendant has obtained such money by fraud and which, in equity and good conscience, he should return to plaintiff. Sturgeon vs. Birkey, 86 App. 489. — Goods Wrongfully Converted: When goods have been wrongfully converted into money by the wrongdoer, assumpsit for money had and received can be maintained but only on proof that the wrongdoer has converted the goods into money and has re- ceived the money. Green vs. Lepley, 88 App. 543 ; DeClerq vs. Mungin, 46 111. 112. — Measure of Damages: Is amount actually received. Cushman vs. Hayes, 46 111. 145. — When Tort Cannot Be Waived: The right of a party to waive a tort and bring assumpsit does not extend to cases arising out of breach of contract or of a legal duty arising out of contract. Morris vs. Jamieson, 205 111. 87. — Defense: The same principle which allows plaintiff, to re- cover what ex aequo et hono he is entitled to, operates in favor of defendant, when called on for the payment of money; if he can show the better equity, he will be permitted to retain the money. He may go into every equitable defense and claim every allow- ance under the general issue. Harris vs. Pearce, 5 App. 622. It is immaterial that the money was won by the plaintiff in a lottery or otherwise. Brady vs. Horvath, 167 111. 610. Money Paid: — What Must he Shown: In order to maintain action for money paid for use of another, it must appear it was paid at such other's request, express or implied, or that, after payment, there was an express promise to pay it back. If there is a request, express or implied, from that the law implies the requisite promise ; and if MOTIVES 859 there is a subsequent express promise to repay it, from that the laAV implies the requisite previous rec^uest. North vs. North, GM App. 129. Proof must show a request, express or implied, by the defend- ant; and it is not sufficient that defendant was benefited by such payment. City of Chicago vs. C. & N. W. R. R. Co., 186 111. 300. — Action by Surety: Note is competent on question of amount, and to whom paid. McFerran vs. Chambers, 64 111. 118. — Wntten Obligation: True relations of parties may be shown by parol. Baum vs. Parkhurst, 26 App. 129. Money Lent: "^ — Defendant's Financial Circumstances: On suit brought to recover alleged loan, where the testimony of the parties is conilict- ing, evidence that the financial circumstances of defendant were such that he did not need the money at the time is competent. Sager vs. St. John, 109 App. 358; Thorj) vs. Goeway, 85 III. 611; Chi. Trust Co. vs. Ward, 113 App. 327. Cf. "Where no issue of fraud is in the case, the fact that defend- ant, at the time, had a much greater sum on deposit in a certain bank, is not competent as tending to support defense that such money was not borrowed." Agat vs. Apfelbaum, 155 App. 572. MORTALITY TABLES See Life Tables. MOTIVES See Intent, Bias and Hostility, Credibility, Cross Exami- nation, Malicious Prosecution, Fraudulent Conveyances. Presumption : Where there exist two motives for an act done, the one lawful and the other unlawful, it must be presumed, in absence of satis- factory evidence to the contrary, that the lawful motive controlled. Speck vs. Pullman Car Co., 121 111. 33. Legislature : Courts cannot inquire into the motives of the legislature. Its knowledge and good faith are not open to question. Courts must always assume that the legislative discretion has been properly exercised. People vs. Thompson, 155 lU. 451. Unless that discretion has been so grossly abused as that it may be said to not have been exercised at all. People vs. Rose, 203 111. 46; People vs. Carlock, 198 111. 150. City Council: An ordinance passed by a city council, in the exercise of the legislative powers conferred upon it, for purpose of police regula- 860 MOTIVES lion or municipal government, cannot be impeached by an inquiry into the motives of the members of the city council, and if the ordinance is within the legislative power of the council, courts cannot declare it invalid on account of improper motives which induced its passage. Murphy vs. C. E. I. & P. Ry. Co., 247 111. 614; People vs. Wieboldt, 233 "ill. 572; City of Aniboy vs. I. C. E. E. Co., 236 111. 237. Parol evidence is not admissible for purpose of invalidating an ordinance by establishing a motive or purpose in the council to serve some private interest. Such evidence must be found in the ordinance itself. City of Aniboy vs. I. C. E. R. Co., 236 111. 236. Execution of Note : On an issue as to the genuineness of the signature, where evi- dence is equally balanced, reason for execution of instrument admissible. Hunter vs. Harris, 131 111. 482. Contract : Motive of party making special contract is immaterial. Emerich vs. Siegel, Cooper Co., 237 111. 610; Eobbins vs. Eothe, 95 111. 464. Forcible Entry and Detainer : Motives of- party who forcibly expels another are immaterial. Baker vs. Hayes, 28 111. 387. Partition : Motives of party seeking decree of partition are wholly imma- terial. Trainer vs. Greenough, 145 111. 543. Malicious Prosecution: Defendant may testify as to his motive, and state that he hon- estly believed plaintiff to be guilty. Barker vs. Eonk, 134 App. 500; Harpham vs. Whitney, 77 111. 32. Homicide : If the evidence in a murder trial shows beyond a reasonable doubt that the accused killed the deceased with malice afore- thought, it is wholly immaterial what his motive was or whether the evidence indicates any motive. People vs. Enright, 256 111. 221; Clifford vs. People, 229 111. 633. In a criminal prosecution the People are required to prove the commission of an act forbidden by law and to prove it beyond a reasonable doubt, but they are never required to prove a cause or reason that induced accused to commit the act if without such proof the evidence is sufficient to show that the act was done by him. If the accused committed the act, the question whether he had a motive, or what it was, is immaterial. Evidence tendnig to show the existence or non-existence of a motive is admissible and is frequently important to be considered in connection with the other evidence in the case, and although the People are under no obligation to show a motive for the commission of a criminal act, they may do so. If the People claim that a motive existed induc- ing the commission of the act, it must be proven, and, like any other circumstance, cannot be inferred, but as they are not required to NEGATIVE IN ISSUE 861 show any motive a jury should not be informed that failure to show tends to prove that the crime was not committed. People vs. Euright, 256 III. 221. Witness : A defendant may prove animus and hostility on the party of a witness for the prosecution, and declarations of determination to convict him if false swearing could do it. Walsh vs. Peoi)le, 6-5 111. 58; O'Donnell vs. People, 110 App. 250. Motive in giving money to witness may be shown. I. C. R. E. Co. vs. Berry, 81 App. 17. MUNICIPAL CORPORATIONS See Corporations, Dedication, Eminent Domain, Ordinances, Officers, Records, Sidewalks, Quo Warranto. MURDER See Homicide. MUTUAL BENEFIT ASSOCIATIONS See Insurance. NAMES See Abbreviations, Identity, Judicial Notice. NATURALIZATION See Citizenship, Contested Elections, Records, Residence, Domicile. NAVIGABILITY See Waters and Water Courses. NEGATIVE EVIDENCE See Positive and Negative. NEGATIVE IN ISSUE Quantity and Burden of Proof: The elfect of the negative form of issue is not to relieve the party making such charge of burden of introducing any proof, but the 862 NEGLIGENCE law will be satisfied with a less qnantity of proof; and this is particularly so where there is the concurring circumstance of the fact being within the knowledge of the adverse party. Evidence which renders the existence of the negative probable may be sufti- cient in the absence of proof to the contrary. Full and conclusive proof, where a party has the burden of proving a negative, is not required, but even vague proof or such as renders the existence of the negative probable is in some cases sufficient to change the burden to the other party. Prentice vs. Crane, 234 111. 302; Welsh vs. Shumway, 232 111. 54; Eexroth vs. Schein, 20G 111. 80; Dorsey vs. Brigham, 177 111. 250; Beardstjown vs. Virginia, 76 111. 34; Graves vs. Bruen, 11 111. 431; Cf. Union Natl. Bank vs. Baldenwick, 45 111. 375; XII 111. Notes, 4S0, § 46. Such evidence as, in the absence of counter evidence, affords reasonable ground for presuming that a negative averment is true, is sufficient to throw the burden of proof upon the adversary. Cole vs. Cole, 153 111. 585; Eyan vs. Hamilton, 205 111. 191; Vigus vs. O'Bannon, 118 111. 334; Parry vs. Squair, 79 App. 324. — Knowledge ejf Adversary': Where a fact is peculiarly within the knowledge of one of the parties, he has the burden of proving it whether the proposition is affirmative or negative. City of Chicago vs. Dunham, 161 App. 307; Eobinson vs. Robinson, 51 App. 317; Williams vs. People, 121 111. 84; People vs. Nedrow, 16 App. 192; Estate of Ramsey vs. People, 97 App. 283. But where allegation is that a public official obtained money by making a representation that he had rendered services where he had not, in fact, done so, this rule does not apply. People vs. Templeman, 169 App. 287. So where a party is bound to aver a negative, he is also bound to prove it, if the means of proof are equally within the control of both parties. G. W. E. E. Co. vs. Bacon, 30 111. 347; Borner vs. Brotherhood of Yeomen, 154 App. 27. — Where License Fequired: In prosecutions for a penalty for doing an act which the statute does not permit to be done by any person except those who are duly licensed therefor, when the act is proven, the burden is on the party to show such license, and neg- ative of the license is not required. Prentice vs. Crane, 234 111. 302; Harliaugh vs. City of Monmouth, 74 111. 367 ; Chandler vs. Smith, 70 App. 658 ; People vs. Koehler, 146 App. 541. NEGLIGENCE See Ordinances, Habits, Similar Facts, Repairs After Acci- dent, Promise to Repair, Pecuniary Circumstances, Rules in Actions for Negligence, Res Gestae, Admissions and Declar- ations, Expert and Opinion, Medical and Surgical Services, Sidewalks, Experiments, Physical Examination, Coroner's Inquest, Ownership, Wages, Earning Capacity and Domestic Relations, Photographs, Release, Custom and Usage, Presump- tions, Bttrden of Proof, Representative Capacity, Safer Method, Mental and Physical States, Witnesses. NEW TRIAL 863 NEW PROMISE See Limitations. NEWSPAPER See Libel and SLANnp:R. Admissibility in Evidence : — Market Price: J*roof of market value of a commodity at a particular time and place cannot be made by hearsay evidence except in the absence of witnesses having- personal knowledge of such market jirice. Quotations or reports in newspapers of general circulation are competent. Tally vs. West. Uinoii Tel. Co., 141 App. 312. Where it is proven that defendant had corrected a price current in a newspaper, files of the papers were properly admitted against him to prove market value of grain. Hiiikle vs. Smith, 21 111. 237. — Fraud: The fact that no mention is made of the conveyance in a newspaper especially devoted to the publication of real estate transfers is not competent evidence upon the issue of fraud in making such conveyance. Nelson & Co. vs. Leiter, 93 App. 176. NEW TRIAL See Cumulative Evidence. Impeaching- Verdict : — Affidavit of Juror: Affidavits by jurors, made after the trial, will not be received to impeach their verdict. Phillips vs. Scales Mound, 195 111. 353; Marzeii vs. People, 190 111. 81 ; Bertholf vs. Quinlan, G8 111. 297; Keins vs. People, 30 111. 25G; Martin vs. Ehrenfelds, 24 111. 1S7; XIII 111. Notes, 982, § 107. The affidavit of a juror is not admissible to impeach his verdict, on motion for a new trial. He is not competent to show that the damages found were arrived at by each juror marking down the amount thought proper by him, and dividing the aggregate by the number twelve. Eeed vs. Thompson, 88 111. 245. Affidavits of jurors cannot be received for purpose of showing cause for setting aside their verdict. They are not admissible to show the conduct of others than the jurors, or improper conduct in arriving at a verdict by the jurors themselves, such as that it was obtained by average or by lot, or in any other improper manner. Sanitary District vs. Cullerton, 147 111. 385. '• — Affidavits of Others: Affidavits of persons swearing to state- ments made by jurors will not be received to impeach their verdict. Phillips vs. Scales Mound, 195 111. 353; Heldmaier vs. Eehor, 188 111. 458; Palmer vs. People, 138 111. 356; Allison vs. People, 45 111. 37; Schneider vs. Chi. City Eys. Co., 177 App. 334. A juror cannot be heard to question the manner by which he 864 NEW TRIAL arrived at his verdict, nor can the verdict be impeached by evidence of outsiders as to facts derived from members of jury as to their action. Smith vs. Smith, 169 111. 623. An affidavit made by one convicted of crime, that verdict was arrived at by chance, although directly averred, must be presumed to have been made upon information and belief, and therefore in- sufficient, when the source of the affiant's information is not shown. Bonardo vs. People, 182 111. 41]. An affidavit that the verdict was found by each juror marking down the amount of damages he deemed proper, and dividing the aggregate of the several sums by twelve, with an agreement that the result should be the verdict, if made merely upon information and belief of defendant, is clearly insufficient. Cummins vs. Crawford, 88 111. 312; City of Pekin vs. Winkel, 77 111. 56. An affidavit that while the jury were deliberating on their ver- dict, in charge of two officers, one of the jurors separated from the others and went about one hundred and fifty yards away and was absent a considerable time does not show ground for a new trial, there being nothing to show that the juror was not in charge of an officer, or that he had opportunity to communicate with any one, where he went or the circumstances shown. Waller vs. People, 209 111. 284. — Grounds of Verdict: The verdict of the jury, where the evidence is conflicting, disposes of the issues of fact, and subsequent affidavits of the members thereof, as to grounds of their verdict, cannot be considered. Frank vs. Taubman, 31 App. 592; Smith vs. Eames, 4 Til. 76. — ■Misconduct of Others: While a jury may not be heard to im- peach his verdict, yet he may unquestionably testify as to what the parties did and said upon the trial, and also as to any improper practices to corrupt the jury in its action, and the effect it may have had upon the jury in their decision. Spurek vs. Crook, 19 111. 415. But as to conduct of officers in charge, affidavits of jurors were not received in Sanitary Dist. vs. Cullerton, 147 111. 385; Allison vs. People, 45 111. 37. — Mistake: W^here the jury have returned a verdict which is, by the court, put in form, and the jury then polled, and each of them assents to the verdict after it is so put in form, they cannot be permitted to come in afterwards and say they were mistaken, and thus impeach their verdict. Suver vs. O 'Riley, 80 111. 104. Affidavits of jurors are competent to show that the verdict returned by them is not the real verdict upon which they had agreed, by reason of some omission to state correctly the verdict at which, by due and regular course of proceedings, they had hon- estly and fairly aiTived. (Clerical error. Jury thought company defendant instead of plaintiff, and accordingly found for defend- ant : ) Schwamb Lumber Co. vs. Schaar, 94 App. 544. NEW TRIAL 865 Supporting- Verdict: Affidavits of jurors will l)e received to support verdict. Phillips vs. Scales Mound, 195 111. 353; Smith vs. Eames, 4 111. 76; Peek vs. Brewer, 48 111. 54. Disqualification of Juror : "Affidavits filed in support of motion for new trial on ground that three of the jurors were incompetent for the reason that they had previously 'formed and expressed' opinions as to defendant's guilt, do tend to show one or more of these juroi^s had previously expressed opinions concerning guilt of defendant, but the jurors implicated deny in the most positive manner they ever made the statements attributed to them. Their affidavits in this respect find some support in the affidavits of persons alleged to have been pres- ent. Considering all the affidavits together, it is not thought it is sufficiently proven either of the jurors whose competency is now called in question had previously formed any such opinions con- cerning the guilt of defendant as would disqualify them, or either of them. A verdict ought not to be set aside on such grounds, unless it is made to appear, from satisfactory evidence, the jurors had previously 'formed and expressed' opinions hurtful to the defence. Scarcely a criminal case comes to this court where the same objection to the competency of jurors is not taken, founded on mere ex parte affidavits. Such affidavits are the most unsatis- factory mode of estalilishing any fact in a case. The parties mak- ing them are subjected to no cross examination, — one of the most potent methods ever adopted to elicit the truth and to detect false- hood. Besides that, a mere casual remark concerning any matter may be imperfectly understood or not accurately remembered. Many cogent reasons readily present themselves why the testimony as to such previously expressed opinions by persons called as jurors should be of clear and satisfactory character, otherwise a verdict fully warranted by the evidence might have to be set aside, and the ends of justice defeated." Hughes vs. People, 116 111. 330; Spies vs. People, 122 111. 1; People vs. Strauch, 144 App. 282. Newly Discovered Evidence: — Affidavits of Witnesses: A motion for new trial, upon ground of newly discovered evidence, should be supported by the affidavits of the witnesses relied upon to make the new proof, or some excuse should be shown for not obtaining them. Janaway vs. Burton, 201 111. 78; T. W. & W. Ey. Co. vs. Ingram, 85 111. 172; Emery vs. Addis, 71 111. 273; Cowan vs. Smith, 35 111. 416; Chi. City Ey. Co. vs. Bohnow, 108 App. 346; Fuller vs. Little, 69 111. 229 ; x'HI 111. Notes, 981, § 102. — Discovery After Trial: It must appear that the evidence has been discovered since trial, and that it could not have been pro- duced at the trial, by the use of reasonable diligence. The evidence must also be material to the issue, and relate to the merits of the case. Chi. City Ey. Co. vs. Bohnow, 108 App. 346; Dyke vs. DeYoung, 133 Til. 82; Crozier vs. Cooper, 14 111. 139; People vs. Moeller, 260 111. 375. — Diligence: It is not sufficient to state merely that due dil- Ev. — 55 866 NON JOINDER igeiiee has been used, but the facts constituting diligence must be stated. Heklniaier vs. Taman, ]88 111. 283. — Names of Witjiesses: The names of the witnesses by whom the party applying for a new trial expects to prove alleged newly discovered matters must be stated in the atfidavit. Edwards vs. Barnes, 55 App. 38 ; Forrester vs. Guard, 1 111. 74. And what party expects to prove by them. Butterworth vs. Pfeift'er, 80 App. 240. — Counter Affidavits: On motion for a new trial on ground of newly discovered evidence, counter affidavits should not be re- ceived; the motion should be heard upon ex parte affidavits. Helliug vs. VaiiZandt, 162 111. 162; Pro. lus. Co. vs. Dill, 91 111. 174; Nelson vs. Equitable Ins. Co., 73 App. 133; Chicago vs. Edson, .43 App. 417. NON EST FACTUM See Denial of Execution. NON JOINDER See Partnership. Pleading: — As to Parties Plaintiff: The non- joinder as to parties plain- tiff may be shown under the general issue. Lasher vs. Colton, 225 111. 234; Seigel, Cooper & Co. vs. Schueck, 167 111. 522; Snell vs. DeLand, 43 111. 323; Dressell vs. Lonsdale, 46 App. 454. — As to Defendants: Where joint liability is denied by a part of the defendants, burden is upon plaintiff to show joint liability of all the defenciants, including those who failed to tile pleas, unless he amend his declaration and dismiss suit as to such of defendants as are not shown to be jointly liable with all the others. But even in absence of a special plea denying joint liability, the evidence must show liability as to all defendants in order to entitle plaintiff to a judgment. Powell Co. vs. Finn, 198 111. 567; Boiler vs. O 'Conner, 157 App. 46; Heidelnieier vs. Ileeht, 145 App. 116. If a person who should have been joined in action on contract, be omitted as defendant, advantage of omission can only be taken by a plea in abatement, unless the joint liability appears from the plaintiff' 's own pleading. And this rule prevails though plaintiff has merely filed the common counts, since he is entitled to ask for a bill of particulars if the declaration does not sufficiently advise him of plaintiff's claim to enable him to plead, and if he fails to take that step and pleads the general issue, he admits there is no foundation for a plea in abatement and the misjoinder of parties caimot be taken advantage of under the general issue. The fact that joint liability is not claimed to cover all the items of plaintiff's demand does not abrogate the rule requiring that a nonjoinder NOVATION 867 of parties be set up by a preliminary plea which gives, the plaintiff a better writ if he chooses to avail himself of it. Eutter vs. McLaughlin, 257 J 11. 199. The rule is plaintiff must join as parties defendant all who are jointly liable upon the contract and if he does not, he cannot recover against any. If it expressly appear on the face of the declaration or some other plea of the plaintiff that the party omitted is still living, as well as jointly liable with the other defend- ants on the contract, the other defendants may demur or move in arrest of judgment, or sustain a writ of error. Sinsheinipr vs. Skinner Mffj. Co., 16.5 111. 116. In action against two or more defendants ex contractu, it must appear from the evidence that there was a joint contract by all the defendants, otherwise there can be no recovery against anyone. Pluard vs. Gerrity, 146 App. 224. A failure to file a plea denying joint liability does not prevent the interposition of such defense. The effect of filing such plea is to require proof of joint liability as a part of plaintiff's case. Capitol Food 'Co. vs. Smith, 155 App. 123 ; Martin vs. Nelson, 53 App. 518. NOTARY PUBLIC See Affidavits, Acknowledgments, Certificates, Officers, Judicial Notice. NOTICES See Service, Knowledge, Sidewalks. NOVATION Definition and Requisites : Novation is the substitution of a new obligation for an existing one and must be made by contract. The original agreement must be absolutely extinguished and a new agreement substituted for it. All the parties, not only to the new contract, but also to the one for which the new contract is substituted, must consent to the novation; the parties to the original contract must consent in order to have that extinguished, and the parties to the new con- tract in order to have a valid obligation substituted for the old. Karraker vs. Eddleman, 101 App. 23. In every novation there are four essential requisites; first, a previous valid obligation ; second, the agreement of all parties to the new contract; third, the extinguishment of the old contract; and fourth, the validity of the new one. Hayward vs. Burke, 151 Til. 121 — Consent of All Parties: It takes the consent of three per- sons to constitute a novation. One contract cannot be wiped out 868 NOVATION and another formed unless the consent of all the parties interested in both contracts is given. Com. Natl. Bank vs. Kirkwood, 172 HI. 563; Walker vs. Wood, ]70 111. 463; Netterstrom vs. Gallistcl, 110 App. 352; Eeid vs. Deaener, 82 111. 308. -IF, & , Such consent may be by implication. Com. Natl. Bank vs. Kirkwood, 172 111. 563. Admissibility of Evidence: It is sufficient to show the parties made a parol agreement to the novation of the debt. Hartford Ins. Co. vs. Olcutt, 97 111. 439; Haynard vs. Gunn, 82 111. 385; Runde vs. Rnnde, 59 111. 98; Brown vs. Strait, 19 [11. 88. Proof of agreement by plaintitf in assumpsit to transfer indebt- edness sued for to a third person is inadmissible in absence of evidence that indebtedness was, in fact, transferred. Argyle vs. McNeill, 153 111. 6(59. Burden of Proof and Presumptions : The burden of establishing a novation is upon the party who asserts its existence. Hayward vs. Burke, 151 111. 121; Netterstrom vs. Gallistel, 110 App. 352. The presumption, in the absence of proof, where collateral secur- ity is taken, is that there was no novatimi. Potter vs. I'Mtchburg Engine Co., 110 App. 430; Wilhelm vs. Schmidt, 84 111. 183. Weight and Sufficiency : In order to establish a novation, the proof must be clear and con- vincing. Potter vs. Fitchburg Engine Co., 110 App. 430; Netterstrom vs. Gallistel, 110 App. 352. Where property is conveyed with the understanding that the grantee shall assume certain debts of the grantor, his creditors agreeing to look to the former for payment, it amounts to a com- plete novation. Seymour vs. Seymour, 31 App. 227. If one of several partners promises a creditor of the firm of which he is a member, to assume and pay his entire debt, and the creditor agrees to look to him alone, a substitution of debtor is effected and the other partners released. Leihy vs. Briggs, 33 App. 534. Pending an adjustment, insured's creditors garnished insur- ance company, who placed the amount in hands of its attorney. Insured surrendered his policy, and receipt for the amount of the loss as adjusted ; and attorney paid to him the amount not gar- nished, and gave him a written acknowledgment of the amount retained. Held, in action against company for balance of the loss as adjusted, a verdict for insured would not be set aside on the ground that he had accepted attorney as his debtor, instead of company. Farmers Fire Ins. Co. vs. Gorzelany, 89 App. 388. Neither notice to a creditor of a partnership that the latter has become incorporated and that the corporation had assumed the firm debts, nor partial payment of the creditor's claim by the corporation nor a demand by the creditor on the receiver of the NUISANCE 869 corporation for payment of the claim and acceptance of dividends thereon, establishes the creditor's consent to the novation as a matter of law, but such facts may all be considered in determining, as a question of fact, whether there was an implied consent. Walker vs. Wood, 170 111. 463. NUISANCE Defined : A private nuisance is defined to be anything done to the hurt or annoyance of the lands, tenements or hereditaments of another. To constitute the condition or use of premises a nuisance, some legal rights, public or private, must be violated, and it must work some material annoyance, inconvenience or injury, either actual or implied from the invasion of the right. Lazarus vs. Parmly, 113 App. 624. Question of Fact: The existence of matters alleged to constitute a nuisance is a question of fact. Eubberman vs. Pierce, 66 App. 389. _ ^ '^ The question as to whether or not ordinance declaring a nui-' sance is valid is question of law. City of Biislmell vs. C. B. & Q. R. E. Co., 259 111. 391. Allegations and Proofs: If plaintiff, in his declaration, places his right to recover upon the ground of an obstruction by which light and air are prevented from coming into his house, and thereby rendering his rooms dark, unwholesome and uninhabitable, he will be required to prove his case as laid, and show his right to the passage of air and light over defendant's land, and its interruption. It will not be competent for him to prove an injury from a nuisance, as that the obstruc- tion was made of offensive and filthy material, which created an unwholesome atmosphere in his home, as that is a different and independent cause of action. Guest vs. Reynolds, 68 111. 478. Under a declaration charging that dirt, waste coal, waste material and other refuse matter from the coal shaft were deposited either directly, or through the agency of a stream, upon plaintiff* 's land, rendering it unfit for cultivation or tilla])le purposes, evidence of damages by water occasioned by the obstruction of the channel of the stream by the coal, so as to flood his land and destroy the crops by the action of the water, is inadmissible, "Coal Run Coal Co. vs. Giles, 49 App. 585. Damages : — Rental Value: Where the owner has resided on property during the period for which he seeks to recover damages, his dam- ages must be measured by his discomfort and the deprivation of the healthful use and comforts of his home, and not by the depre- ciation in rental value of the property. Fairbanks Co. vs. Nicholai, 167 111. 242; Chi. Coal Co. vs. Wilson, 67 App. 443 ; Gempp vs. Bassham, 60 App. 84. 870 NUISANCE — Railroad Construction : Where deterioration of value of land is occasioned by the construction of a railroad, such nuisance is a permanent one, so that all damages for past and future injury to the property may be recovered in one suit, and such recovery is a bar to all future actioixs therefor. Strange vs. C. C. C. & St. L. Ky. Co., 245 111. 246 ; Hart vs. Wabash Ey. Co., 238 111. 336; Chi. & E. I. E. E. Co. vs. Loeb, 118 111. 203. — Offensive Structures: In action for injury to a well by rendering the water impure, all the circumstances may be proven and considered ; and to ascertain the damages, the cost of furnish- ing water to the family, having regard to quality and quantity, may be taken into account in the estimate, — also the difference in value of the property, owing to the erection of gas or other offensive structures in the vicinity. Ottawa Gas Co. vs. Graham, 28 111. 73. — Permanent and Temporary Nuisance: Wliether recovery should be confined to such damages as have been sustained at time action is brought, or whether future damages might also be re- covered, depends upon whether the nuisance is permanent or tem- porary in character. If permanent, all damages, past, present and future may be proven and recovered. If temporary, only such damages can be recovered as have accrued up to the time of bringing action. Fairbanks Co. vs. Bahre, 213 111. 636; City of Clentralia vs. Wright, 156 111. 561; ttchlitz Brew. Co. vs. Compton,142 111. 511; Suehr vs. San. Dist., 149 App. 328; XIII 111. Notes, 1007, § 55. — Market Value: Depreciation in market value is not measure of damages for a temporary injury which may be removed or abated. N. S. St. Ey. Co. vs. Payne, 192 111. 239. It is proper to show the character and value of the premises without the nuisance to enable the jury to understand and estimate the amount necessary to compensate plaintiff for being deprived of the comfortable use and enjoyment of it as his home, but not for the purpose of showing permanent depreciation in the market value as ground of recoveiy. Fairbanks Co. vs. Nicholai, 167 111. 242. The price at which similar property had been sold shortly before in the same vicinity may be shown by witnesses. C. & B. p. Co. vs. Chicago, 111 111. 651. Admissibility of Evidence : Injury to Other Persons or Property: Evidence as to the effect of the nuisance upon persons or property, similarly situated with respect to the nuisance, is competent to show the nature and extent of the injury and that the nuisance objected to is capable of inflicting the injury complained of. Wylie vs. Elwood, 134 111. 281; Cooper vs. Eandall, 59 111. 317; Ottawa Gas Co. vs. Graham, 35 111. 346; Fairbanks vs. Bahre, 112 App. 290; Belvidere Gas Co. vs. Jackson, 81 App. 424; Crane Co vs. Stammers, 83 App. 329; Contra, Knhn vs. I. C. E. E. Co., Ill App. 323; XIII 111. Notes, 1006, §49. It is proper to allow witnesses to describe the offensive character of the nuisance. Seacord vs. People, 121 111. 623. NUISANCE ■ 871 -Injury to Health: In action for a nuisance to a dwelling house on account of a rewer, it is proper to allow plaintiff to prove how other members of her family and visitors were affected by the noxious and offensive odors arising from the sewer and the extent thereof, to aid the jury in detennining whether and to what extent she and her family had been deprived of the wholesome and com- fortable use of her home, by the stenches and offensive odors from the sewer. City of Litchfield vs. Whitenack, 78 App. 364. Where nuisance consists of the stenches and noises of a livery stable upon an adjoining lot, evidence of the effect of such stenches and noises upon any person who might be in the house, whether a member of the family or a mere culler, which tends to enlighten the jury upon the question whether the house was rendered physi- cally uncomfortable as a home, is competent. Gempp vs. Bassham, 60 App. 84. — Subsequent Bepair: After suit brought incompetent as ad- mission, but competent as tending to show cause of damage. Kuhn vs. I. C. E. E. Co., Ill App. 323. — Opinion of Witnesses: In action for injury to real property, caused by the increased flow of water due to the act of defendant, proof is best made by showing the manner in which the market value was in fact depreciated by actual results rather than by offering the opinions of witnesses based upon their conclusions as to what the effect would be. Suehr vs. San. Dist., 149 App. 328. In estimating the damages it is not necessary that any witness express an opinion as to the amount of such damages. The jury may themselves make such estimate from the facts and circum- stances in proof, and by considering them in connection with their own knowledge, observation and experience in the business affairs of life. City of Litchfield vs. Whitenack, 78 App. 364. In action for damages to a dwelling house by reason of the loca- tion of zinc works, it is proper for witnesses to state the value of the premises, both before and after such location, and then to con- nect the depreciation with the location and operation of such works. Wenona Zinc Works vs. Dunham, 56 App. 351. — No Protest: It is no bar to an action for the recovery of damages that plaintiff has made no objection or protest against the creation or continuance of a nuisance from which the injury and resulting damages arose. Deweese vs. Hussmann, 146 App. 55. — Proper Management: Nor can defendant manufacturing company prove that the machinery used in the business was good and business properly managed, except where vindictive damages are claimed. Cooper vs. Ei^ndall, 53 111. 24. — Character of Property in NeigJiborJiood: Nor may defend- ant show the character of property in the neighborhood owned by plaintiff. Cooper vs. Eandall, 53 111. 24. 872 OBJECTIONS Injunction to Restrain: — Public-Nuisance: A public nuisance may be a private nui- sance, as where the property of an individual is injured in a man- ner special to him, and diiferent from the injury to the public. An injury' to the public, in the sense here used, is such an injury as excludes or hinders all alike in the enjoyment of a common right. The question whether a private person has suffered such special injury or damage is not to be determined by whether he alone has suffered damage or whether others in the same vicinity have been injured. If an individual has suffered special damage to his property from the nuisance his right to maintain a bill to enjoin it is not affected by the fact that the property of others has been injured by the same cause. Hoyt vs. McLaugiilin, 250 111. 442 ; Stead vs. Fortner, 255 111. 468 ; joos vs. 111. Nat. Guard, 257 111. 138. — Private Nuisance: To entitle a party to equitable relief against a private nuisance before resorting to a court of law, his case must be clear so as to be free from all substantial doubt as to his right to relief. In doubtful cases, he will be turned over to his legal remedy. To entitle him to come into a court of equity in the first instance, there must be a strong and mischievous case of pressing necessitv. Oswald vs. Wolf, 129 111. 200. Where the legal right of the complainant is clearly established and an unreasonable and unlawful use by defendant of its own property to the injury of complainant's rights is clearly proven, relief may be granted without prior determination in a suit at law, that the defendant's use of its property constitutes a nuisance. Wente vs. Conti. Fuel Co., 232 111. 526; Deaconess Hospital vs. Boutjes, 207 111. 553. NUMBER OF WITNESSES See Cumulative Evidence, Expert and Opinion, Order of Proof, Evidence Defined, Credibility. OBJECTIONS See Striking Out and Withdrawal of Evidence. Who May Object: Only the party who is affected by introduction of evidence may object, Eice vs. Eice, 108 111. 199. Grounds : — • Weight of Testimony : The weight of testimony is not ground for an objection. Fuhiy vs. Chi. City Ey. Co., 239 111. 548. — Failure of Opposite Party to Introduce Evidence: Party whose objection is sustained cannot complain of opposite party's failure to introduce evidence objected to. Bernstein vs. C. I. & L. Ey. Co., 147 App. 443. — Irresponsive Ansivers: That an answer otherwise unobjec- OBJECTIONS 873 tionable is not responsive to the question, is not an objection that a party not asking the question can avail himself of. Turck vs. City of Chicago, 146 App. 472; Int. Book Co. vs. MacHorn, 158 App. 543. One obtaining a fairly responsive answer to a question put by him upon cross examination cannot object to its competency as evidence. Board of Trade Tel. Co. vs. Blunie, 17G 111. 247; Capen vs. DeSteiger Glass Co., 105 111. 185; City of Chicago vs. Spoor, 91 App. 472. — Evidence Admissible for Any Purpose: Evidence, if com- petent for any purpose, must be admitted, and proper restrictions made by instruction. Mighell vs. Stone, 175 111. 261. So where evidence is competent as to one party, although in- competent as to co-party, it is admissi])le. Con. Ice Mach. Co. vs. Keifer, 134 111. 481. General Objections: — In General: An objection that instruments, records, etc., are "incompetent," "improper," or "irrelevant," is too general to save special objection not going to the relevancy or competency of the proper proof. City of Chicago vs. Gillsdorff, 258 111. 212; Gage vs. Eddy, 186 111. 432; C. & E. E. E. Co. vs. Holland, 122 111. 461. General objection is not sufficient if the grounds are such as might be obviated if specifically pointed out. C. & E. I. E. E. Co. vs. Wallace, 202 111. 129; Calumet Dock Co. vs. Morawetz, 195 111. 398; Benefield vs. Alber, 132 111. 665; Wilson vs. King, 83 111. 232; Espen vs. Hinchcliffe, 131 111. 468; XIV 111. Notes, 850, § 91. — When Evidence Wholhj or Partially Admissihle: An objec- tion to evidence as "incompetent and irrelevant" is insufficient unless the evidence is clearly inadmissible for any purpose. Taylor vs. Adams, 115 111. 570. A general objection is not sufficient unless evidence is wholly inadmissible. C. E. L & P. Ey. Co. vs. Eathneau, 225 111. 279. If objection is made to entire testimony of a witness, and part of it is proper, objection will fail. Myers vs. People, 26 111. 173 ; Hucks vs. Adlard, 157 App. 287. But a general objection to evidence which is incompetent in any event is sufficient. C. E. I. & P. Ey. Co. vs. Eatheneau, 225 111. 279. So where ordinance is wholly irrelevant, general objection is sufficient. Bullis vs. City of Chicago, 235 111. 472; Eev., 138 App. 298. — Best Evidence: The question "What was the amount of the account which you presented to defendant for payment?" was objected to on ground that it was not the best evidence. The objection should have stated that such evidence was not the best evidence because it called for the contents of a writing shown to have once existed and which remained unaccounted for. Lewisohn vs. Stevens, 70 App. 307. — Introduction of Ordinances: A general objection to the introduction of a village ordinance is insufficient to raise the S74 OBJECTIONS question that the ordinance does not show that it had been ap- proved by president of village. Payue vs. So. Springfield, 161 111. 285. A general objection to proof of a municipal ordinance by means of a printed pamphlet is not sufficient to raise a technical point upon question of competency of such pamphlet. I. C. R. E. Co. vs. Burke, 112 App. 415. A general objection to the introduction or ordinance does not raise the question of its validity. This can only be done by spe- cific objection upon that ground. Wabush vs. Kamradt, 109 App. 203; Craw vs. Chi. City Ey. Co., 159 App. 100. — Introduction of Deed: A general objection to introduction of a deed is not sufficient to raise question as to uncertainties and imperfections in description of land thereby conveyed. Preston vs. Davis, 112 App. 636. — Official Character of Acknowledging Officer: A general ob- jection to the admission of an instrument is not sufficient to question the official character of the officer before whom it pur- ports to be acknowledged. Weber vs. Mick, 131 111. 520; Osgood vs. Blackmore, 59 111. 261; McCarthy vs. Hetzuer, 70 App. 480. — Attorney's Fees: A general objection to a question relative to attorney's fees is not sufficient to raise question that the inquiry should be directed to what is the usual and customary charge for such services. Maneaty vs. Steele, 112 App. 19. — Documentary Evidence: A general objection to documen- tary evidence does not question failure to make preliminary show- ing, but raises only question of relevancy. Gage vs. Eddy, 186 111. 432; McDonald vs. Stark, 176 111. 456; Crawford vs. C. B. & Q. E. R. Co., 112 111. 314. A general objection to documentary evidence goes alone to its pertinency, and under such objection the party will not be al- lowed, on appeal or error, to urge specific objection that the execu- tion of a written agreement was not proven, nor the foundation laid to authorize a copy from the record to be read. Such objec- tions must be specifically made on the trial, so as to afi:ord oppor- tunity of obviating same. Crawford vs. C. B. & Q. E. E. Co., 112 111. 314. So an objection that the certificate of the recorder to the certi- fied copy of the record of a deed was not signed must be specific. City of Chicago vs. GilsdorfP, 258 111. 212. A general objection to admission of a writing offered as im- peaching proof does not present for review the question whether part of statements therein contained were inadmissible, as being mere opinions, if the writing was admissible for any purpose. I. C. E. R. Co. vs. Wade, 206 111. 523. — What Questions General Objection Raises: A general ob- jection raises question of relevancy and materiality only. Wrisley vs. Burke, 203 111. 250; Cantwell vs. Welch, 187 111. 275; Gage vs. Eddy, 186 111. 432; Scott vs. Caldwell, 152 App. 172; Haberstich vs. Elliott, 189 111. 70. OBJECTIONS 875 Does not present the question of secondary character of evi- dence. Groom vs. Parables, 28 App. 153. Objection to letter that it is "incompetent and immaterial" does not raise question of genuineness. Franklin vs. Criim, 171 III. 378. — As to Irresponsive Ansivcrs: AVill not reach the irrespon- siveness of an answer. Craney vs. Sehloeman, 145 App. 313. — As to Leading Questions: And will not reach the objection of its being leading. Eiuldy vs. McDonald, 244 111. 494; Dunn vs. People, 172 111. 582; Funk vs. Babbitt, 156 111. 408; First Natl. Bank vs. Dunbar, 118 111. 025; Hilton vs. Santleman, 129 App. 109. • — HypotJufical Questions: A general objection does not save for review the completeness or accuracy of the recital of facts contained in a hypothetical question. McCauley vs. Cbi. City Ey. Co., 163 App. 176. — As Affecting Competency of Witness: An objection to a question calling for opinion does not question competency of wit- ness to give the opinion. C. P. & St. L. Ey. Co. vs. Nix, 137 111. 141. — As Affecting Form of Question: A general objection to a question propounded to a witness must be regarded as going to the competency of the testimony sought and not to the form of the question, and if the testimony sought to be elicited is perti- nent and competent, it is en^or to sustain such an objection. Tracy vs. People, 97 111. 101 ; Maneaty vs. Steele, 112 App. 19. — Tax Receipts: A general objection to tax receipts as evi- dence goes only to their competency or relevancy, and not to any objection that might be obviated by party offering them. Under such an objection, party is not bound to prove the signatures of the officers signing same. Walcott vs. Gibbs, 97 111. 118. — Loan Association Director's Resolutions: A general objec- tion to introduction of certified copy of a resolution by the board of directors of a loan association, authorizing institution of fore- closure proceeding, does not raise point that secretary's certifi- cate fails to show that he is keeper of records and official papers. Cantwell vs. Welch, 187 111. 275. Specific Objections: — In General: Objection must be specific and made promptly. Hunting vs. Aurand, 70 App. 28 ; Schroeder vs. Walsh, 10 App. 36. And this rule applies to applications for registration of title. Bjork vs. Glos, 256 111. 447. The rule applies only to cases where the objection, if specifically pointed out, might be obviated. It has no application to a case where the objection could not, under any circumstances, be reme- died. A general objection is sufficient to exclude evidence that is not admissible under any circumstances. Sidwell vs. Schumacher, 99 111. 426; Poles Co. vs. Messer, 199 111. 540. Counsel should be permitted to state grounds of objection. It is the duty of counsel to always state the grounds of objection. 876 OBJECTIONS In many instances a general objection, without stating reasons, is insufficient. Coueord House Co. vs. O 'Brieii, 228 111. 360. — Foreclosure Proceeding lieconls: Objection to admission of record of foreclosure proceedings on ground of want of proof of jurisdiction should be specific. Davis vs. Hamilton, 53 App. 94. — Repeating Ground: Where a question put to a witness is ob- jected to on ground of his incompetency, it is not necessary to repeat the special ground of objection to every question there- after asked of the witness. Taylor vs. Pegrani, 151 HI. 106. — ■ As to Diligence of Discharged Employe i7i Searching for Work: In action to recover amount due on contract of service, objec- tion to plaintiff's evidence of expenses incurred in searching for- other employment after his discharge must be specific. Leslie vs. Joliet Bridge Co., 149 App. 210. — Preliminary P^oof of Lost Instruments: Objection to suf- ficiency of preliminary proof of lost instruments must be specific. B. & O. E. R. Co. vs. Bnibaker, 217 111. 4G2 ; G. P. Shooting Club vs. Crosby, 181 HI. 266; Gillespie vs. Gillespie, 159 111. 84. — Court Orders: Where a general objection only is made to introduction of order of court authorizing a guardian's sale of land, its admission cannot be assigned as error on the ground that the record in the case, showing jurisdiction of the court, was not first offered. A specific objection to evidence that might be obviated comes too late on appeal or error. Benefield vs. Albert, 132 111. 665. — Hypothetical Question: Objections to hypothetical questions must point out defects. People's Casualty Co. vs. Darrow, 172 111. 62; Chi. U. Trae. Co. vs. Eoberts, 229 111. 481; Simpson vs. Peoria Ey. Co., 179 App. 307; XIV 111. Notes, 851, § 95. — Fiecord of Former Conviction: The objection to admission of record of former conviction of one charged with crime, that de- fendant is not identified as person formerly convicted, should be specifically made on trial, so that it might be obviated by other proof. A general objection Avill not save the point on appeal. Sullivan vs. People, 122 111. 385. — As to Secondary Evidence: Objection on ground of sec- ondary evidence must be specific. People vs. White, 237 111. 165; Merchants Bank vs. Dawdy, 230 111. 199; Mac-kin vs. Haven, 187 111. 480; Eich vs. Trustees of Schools, 158 111. 242 ; People vs. Whalen, 151 A])p. 16. An objection to oral testimony as to rule of railroad company, on ground that it is in writing, should be placed specifically on that ground. St. L. A. & T. H. E. E. Co. vs. Bauer, 156 111. 106. — Limits of Cross Examination: An objection that the in- quiry on cross examination is not within the limits of the exam- ination in chief must specifically point out the ground of objec- I. C. E. E. Co. vs. Prickett, 210 111. 140; Wrisley vs. Burke, 203 111. 250. OBJECTIONS 877 — Competency of Witnesses: A specific ohjoetion is essential, to save for review, objection to qualilication ui" witness to give opinion with respect to matter in controversy. Peebles vs. U "Gara Coal Co., 143 App. ^TO; Afl'd., 239 111. 370. Objection that the witnesses were not qualitied to testify to market value of material will not be considered where the only objection made to such evidence wa§ that the price of material was immaterial under the issues. Schilliugei' Bros. vs. Thompson Co., 171 App. 319, Time: — At Time of Introduction : The admission of incompetent evidence will not reverse where no objection was interposed at time of introduction. Aiuer. Ins. Co. vs. Walston, 111 App. 133. If cause for objection to testimony is apparent at time it is given, motion to exclude comes too late after witness excused from stand. E. T. St. L. & W. E. E. Co. vs. Stevenson, 122 App. 654. Objection should be made at time question is propounded. Kreigh vs. Sherman, 105 111. 49; Gillett vs. Booth, 95 111. 183; K. S. & L. Co. vs. Kankakee, 128 111. 173; XIV 111. Notes, 852, § 90. It is not sufficient objection for counsel to advise the court that he will object to a given line of testimony, but objection must be made after question is stated. City of Charleston vs. Newman, 130 App. 6. — On Appeal: Objections cannot be made for first time on appeal. Fuller vs. Kelso, 163 App. 576; People vs. C. V. & C. Ey. Co., 256 111. 286. If party makes objection which is overruled, he does not, by intro- ducing like evidence to combat that admitted, lose his rights on appeal. Chi. City Ey. Co. vs. Uliter, 212 111. 174; Cf. People vs. Newman, 261 111. 11. (See Eelevancy.) A document otfered in evidence, which was before court, will be considered as having been formally read to the jury, where the objection that it was not read, is first made on appeal. Hefling vs. YanZandt, 162 111. 162. If the only objection to the admission of a copy of a will was that it w^as incompetent, objection that it was inadmissible be- cause not accompanied by properly certified order of probate court cannot be urged on appeal. Deiterman vs. Euppel, 200 111. 199, Evidence cannot be complained of by party who opposed its exclusion and objected to its withdrawal from consideration of jury, N, Y. C. & St. L. Ey. Co. vs. Blumenthal, 160 111. 40; C. & A. E. E. Co. vs. Pettit, 111 App. 172. A general objection to admission of a note that it is irrelevant, incompetent and immaterial does not permit specific objection to be made, that there was no proof of its execution. Brown vs. Schintz, 203 111. 136. — Execution of Instruments: Objection as to execution of in- strument must be made in time to afi'ord opportunity of supplying requisite evidence. Lake vs. Brown, 116 111. 83. 878 OBJECTIONS — Depositions: Absence of signature cannot be objected to for first time on appeal. Dorn vs. Rose, 177 111. 225; Huff vs. Wells, 86 App. 186. An objection to either question or answer, which can be ob- viated by retaking depositions, cannot be first made at the trial, but must be made upon motion to suppress, in apt time before trial. Smith vs. Swigart, 149 App. 21. — Secondanj Evidence: Objection to secondary evidence must be made at trial. Condon vs. Brockway, 157 111. 90; C. C. C. & St. L. By. Co. vs. Strong, 56 App. 6U-i. Objections to secondary evidence cannot be first made on appeal. Waiss vs. Cannon, 146 App. 379. Although judgment was taken by default, where appellants had been duly served with process. Condon vs. Brockway, 157 111. 90. — Competency of Witnesses: Objection to incompetency of witness must be made before witness is examined in chief. Chi. Trust Co. vs. Sagola Lumber Co., 148 App. 333. A party knowing of disqualification of a witness should object before testimony is given. If such incompetency is known, he cannot, without objection, permit witness to testify and then raise question of disqualification by motion to exclude the evi- dence. Chi. Trust Co. vs. Sagola Lumber Co., 242 111. 468. One Avho knows, before the trial, that a witness is incompetent because of his mental condition, must make his objection before such witness has given any testimony, and if he is ignorant of such condition before the trial he must make his objection as soon as such condition becomes apparent. People vs. Enright. 256 111. 221. Objection to incompetency of witness cannot be made for first time on appeal. Cotten vs. Sullivan, 162 App. 396; Willenliorg vs. Murphy, 36 111. 344. Parties cannot permit a witness to testify in apparent hope of gaining advantage, and for first time on appeal question his com- petency. Holroyd vs. Milliard, 142 App. 392. To Form of Question : The objectionable form of a question is not reached by an ob- jection that question was improper. Beyer vs. Peoria Traction Co., 156 App. 47. Waiver: — As to Cross Examining Witness: An objection to improper evidence is not waived by a cross examination of the witness in respect thereto. Aetnae Ins. Co. vs. Paul, 23 App. 611. But error in admission of evidence is waived by the objecting party subsequently examining other witnesses on same point. Huling vs. Century Pub. Co., 108 App. 549. ^r- Offer of Evidence After Objection: After the court has overruled defendant's exceptions to the admission of a certain class of evidence, the defendant may introduce evidence of same OBJECTIONS 879 class to meet, that of plaintiff without waiving his right to claim the benefit of his exceptions on appeal. Chicago City Ey. Co. vs. Uhter, ^12 111. 174; Winn vs. Christian Co;il Co., 156 App. 179. — Withdrawal of Objection: An objection that court erred in refusing to allow defendant to testify as to his good faith in transaction involved is waived where plaintiff withdrew his objec- tion after it had been sustained, and stated that the testimony might be admitted without objection, but defendant declined to avail himself of such withdrawal and did not testify. Crawford vs. Burke, 201 111. 581. An objection to admission of evidence may be waived hy con- duct of objector inducing court and opposing counsel to believe objection has been withdrawn. Thommason vs. Wilson, 146 111. 384. — By Making Specific Objection: When a specific objection is made to introduction of a document, it is a waiver of all other objections which might be obviated by proof. So when the only objection made to a tax deed is the defect in authority of officer to make the sale, it may be regarded as an admission that the title and proceedings were otherwise valid. Garrick vs. Chamberlain, 97 111. 620. A specific objection, based solely upon a particular point, is a waiver of objections to all other points not specified or relied upon. Prairie DiiEocher vs. Milling Co., 248 111. 57; T. H. & I. R. R. Co. vs. Voelker, 129 111. 540. — By Introducing Like Irrelevant Evidence: Where the ob- jecting party has introduced irrelevant testimony, he cannot complain if the court permits the adverse party to produce evi- dence of like irrelevant nature to rebut the evidence he has him- self offered. 111. steel Co. vs. Wier^becky, 206 111. 201 ; C. C. C. & St. L. Ey. Co. vs. Highsmith, 59 App. 651. (See Rebuttal.) Where both parties introduce incompetent evidence of same kind, neither will be heard to complain that such evidence is in- competent. Kuhn vs. Eppstein, 239 111. 555; Whalen vs. Stevens, 193 111. 121; Moyer vs. Swygart, 125 111. 262; Godsall vs. Joliet, 150 App. 519; Eeavelly vs. Harris, 145 App. 545 ; XI 111. Notes, 275, § 1245. — Failure to Object: A motion to strike out evidence is prop- erly denied where admitted without objection or any promise on part of plaintiff's counsel as to supplemental evidence. Chi. Un. Trac. Co. vs. May, 221 111. 530. A party who has allowed a Avritten instrument to be introduced in evidence, without objection, must be held to have admitted that it is evidence, that it is duly executed, but not that it is suf- ficient evidence. Lowe vs. Bliss, 24 111. 168. A party cannot sit by and permit evidence to be introduced without objection, and upon appeal urge objection which might have been obviated if made at the trial. Bartlow vs. C. B. & Q. B. E. Co., 243 111. 332; County of DuPage vs. Comrs., 142 111. 607; Tarrant vs. Burch, 102 App. 393. 880 OBJECTIONS Failure of defendant in foreclosure proceeding to object to oral evidence that complainants were executors of deceased mort- gagee's estate, waives point that proper proof of the fact was not offered. Maichal vs. Davis, 20G 111. 231, Failure to object to evidence at all or at proper time or in proper manner waives right to subsequently question admissi- bility of the evidence. People vs. Weston, 28(5 111. 104; Graham vs. People, 115 111. 566; Miller vs. Potter, 59 Ai>p. 1:J5. Right to object is not necessarily waived by reason of failure of adverse party to object when objecting party himself offered the irrelevant testimony. FitzSimjiions vs. Braun, 199 111. 390. A party who fails to object to evidence when offered, on ground of variance, and to point out such variance, waives the objection. Linqnist vs. Hodges, 248 111. 491; Eeavely vs. Harris, 239 111. 526; Swift & Co. vs. Eutskowski, 182 111. 18; Holman vs. Gill, 107 111. 407; I. St. L. R. E. Co. vs. Estes, 96 111. 470. One who fails to object to a question until after it is answered, and pursues the witness with questions on same subject on cross examination, after court's refusal to strike out answer, cannot complain of evidence on appeal. Poehlman vs. Kurtz. 204 111. 418. Burden of Sustaining Objection: The presumption is that one offered as a witness is competent to testify, and burden is therefore upon one who objects, to state and prove grounds of his objections. Boyd vs. McConnell, 209 HI. 396; Campbell vs. Campbell, 130 111. 466; S. C. Inst. vs. Estate of Avery, 157 App. 568. Renewal : When evidence has been received under promise that a link nec- essary to its competency will be established by other evidence, and a motion to strike out such evidence is made and overruled because of such promise, such a motion must be renewed if such promise is not kept, in order to urge upon appeal the incom- petency of evidence so received. Chi. City Ey. Co. vs. Hyndshavr, 116 App. 367. Where an objection has once been made and overruled, it need not be repeated to same species of evidence, and party is under no necessity, to make exception available, to renew objection when same species of evidence is offered by same party a second or third time. Mackin vs. Blythe, 35 App. 216; Anglo Pkg. Co. vs. Baier, 20 App. 376. Excluding Evidence: If evidence is admissible for any purpose, it should not be ex- cluded. It is, however, the proper practice to limit such evi- dence by instruction to its proper office in the ease. People vs. Hagenow, 236 111. 514; People vs. Casey, 231 111. 261; Central Ey. Co. vs. Allmon, 147 111. 471; Purdy vs. People, 140 111. 46. The correct practice is to move to exclude the answer on ground OBSTRUCTING HIGHWAYS 881 of irresponsiveness, and if no such motion is made, the objection that answer is irresponsive cannot be urged on appeal. >• McMahon vs. Chi. City Ey. Co., 239 111. 334; Wilson vs. Chi. City By., 15-i App. 632. If witness answers before objection could be interposed, rul- ing should be obtained by motion to strike out. Board of Trade Tel. Co. vs. Blunie, 176 111. 247. Where copy of ordinance, certified under hand and seal of vil- lage clerk, is received in evidence without objection, on motion to exclude, the objection that such ordinance was not signed by presi- dent of such village is not sufficient ground for exclusion. Prairie DuEocher vs. Milling Co., 248 111. 57. Exceptions : An exception must be taken at time decision is made, and bill of exceptions must show that fact. Feitl vs. Ey. Co., 211 111. 279. Deferred Ruling-: An objection to evidence, competent in itself, but which needs supplemental evidence, is properly overruled, but if supplemental evidence is not introduced, objector should move to exclude. Schmitt vs. Kurrus, 140 App. 132; Affd., 234 111. 578. Erroneous Ruling: Erroneously sustaining an objection that a question was lead- ing is not grounds for reversal where merits of case are not affected. Wilson vs. Chi. City Ky. Co., 154 App. 632. OBSTRUCTING HIGHWAYS See Abandonment, Dedication, Eminent Domain, Admissions AND Declarations. ADMISSIBILITY OF EVIDENCE. Location of Obstruction and Notice: When a notice charges a person with obstructing a road, such person is entitled to understand from the notice what place he is obstructing, so he may ascertain what his rights are and then proof must correspond with this notice. Town of Lovington vs. Adkius, 232 111. 510 ; Farlow vs. Town of Camp Point, 186 111. 256. But if variance is only apparent, same may be explained by parol. People vs. Young, 72 111. 411. To authorize a recovery of a penalty for obstructing highway, it must be shown by preponderance of evidence that obstruc- tion erected by defendant is substantially the same one described in the declaration and in notice to remove obstruction. Town of Bethel vs. Prnett, 215 111. 162. Notice is not necessary to authorize recovery for obstructing road, but must be given before per diem penalty for allowing same can be recovered. Seidsehlag vs. Town of Antioch, 207 111. 280; Town of Madison vs. Gallagher, 159 111. 105. Ev. — 5 6 882 OBSTRUCTING HIGHWAYS Evidence of obstruction at places other than one complained of, and by other persons is inadmissible. Littiech vs. Mitchell, 73 111. 603. Existence of Road: — Prescription: To establish a highway by prescription, the user must be open, notorious, exclusive, continuous and uninter- rupted for fifteen yeare, and must be under claim of right with the knowledge of the owner but without his consent. Palmer vs. City of Chicago, 248 111. 201 ; Eose vs. City of Farmington. 196 111. 226; O 'Connell vs. Chi. Term. Co., 184 111. 308; XIV 111. Notes, 390, §§11 et seq. To establish a common law dedication, it is essential that the proof be clear and unequivocal as to the intention of the propri- etor to dedicate to public use. City of Chicago vs. Wildman, 240 111. 215. And must be on a definite and specific line. City of Chicago vs. Gait, 224 111. 421; Town of Bethel vs. Pniett, 215 111. 162. And evidence as to location of traveled track in establishing a road by user, should be limited to place where alleged obstruc- tion was placed. Seidsehlag vs. Town of Antioch, 207 111. 280. Road not laid out under statute, but claimed to exist by dedi- cation or prescription, must be determined by fences built by owners on each side of road. Town of Harmony vs. Clark, 250 111. 57 ; Town of Bethel vs. Pruett, 215 111. 162. But it is not competent for defendant to show that road as obstructed is as wide as the highway in either direction from ob- struction. Town of Whitney vs. Linville, 174 111. 579. — Record Evidence: Where statute in force requires all pub- lic highways laid out by order of highway commissioners to be not less than four rods wide, an order of highway commission- ers laying out a road forty feet wide is not admissible, to show a statutory road legally established. Town of Lovington vs. Adkins, 232 111. 510. But admissible, if properly limited in competency and applica- bility, as tending to show the line of travel by the public to prove highway by prescription. Town of Harmony vs. Clark, 250 111. 57; Seidsehlag vs. Town of Antioch, 207 111. 280. Consent to Use of Land : Defendant may testify he never gave any express consent to use strip of land as public highway. Town of Bethel vs. Pruett, 215 111. 162. He may testify as to what his intention was and such testimony is to be considered in connection with all other facts and cir- cumstances of the case. Rose vs. City of Farmington, 196 111. 226; Town of Lovington vs, Adkins, 232 111. 510. And may show an agreement with road commissioners. Town of Bethel vs. Pruett, 215 111. 162. OBSTRUCTING JUSTICE 883 Road Laid Out on Different Lines : In action against adjoining land Owner for Obstructing a newly opened highway, defendant may show the commissioners laid out the road on a different line from that described in the petition and commissioners' order, over land in which they acquired no right. Farrelly vs. Town of Kane, 172 111. 415. Weight and Sufficiency: It is only necessary that the defendant's guilt should be estab- lished by a clear preponderance of the evidence. Town of Pardridg^e vs. Snyder, 78 111. 519; Town of Havanna vs. Biggs, 58 [11. 483; C. & E. I. E li. Vo. vs. People, 44 App. 632. OBSTRUCTINa JUSTICE See Resistance to Officers. Tampering with Witness : — Attempt to Suhorn Witness: In Order to cOnvict a person of endeavoring to incite or procure another to commit perjury, it must be shown that the accused urged the witness to give false testimony, knowing that such witness, as well as himself, was aware of its falsity. It must appear that the witness would have been guilty of perjury if he had given the proposed false testi- mony, w^hich could not be unless he knew it to be false. If the proposed witness believes what he is asked to testify to is true and does not know of its alleged falsity, he will not be guilty of perjury if he swears to it ; and in such case the person soliciting the witness to so testify cannot be convicted of endeavor- ing to procure such witness to commit perjury, Coyne vs. People, 124 111. 17. — Causing Witness to Abscond: Parties conspiring together to induce persons who they know are witnesses in a criminal case to leave the jurisdiction of the court so that they cannot be pro- duced as witnesses are guilty under the statute, whether the testi- mony of such witnesses would be material and result in the con- viction or acquittal of the accused or not, and the indictment need not aver that the testimony of the witnesses was material. The guilt or innocence of the person at whose trial the witnesses should have testified is not material, and proof that he was or was not guilty is properly denied admission. Tedford vs. People, 219 111. 23. Tampering with Jurors : It is not essential to the sufficiency of an indictment for con- spiracy to cause certain persons to be summoned as jurymen for the purpose of obtaining a certain verdict, that it be alleged that some one of the conspirators had the power to summon the jury- men or cause them to be summoned. Gallagher vs. People, 211 111. 158. — Jurisdiction: An indictment alleging conspiracy to procure a false verdict in a cause pending before a certain justice of the peace charges a conspiracy to defeat justice in a public court, 884 OFFER OF EVIDENCE and it is not necessary to aver the justice of the peace had juris- diction of the cause. Gallagher vs. People, 211 111. 158. — Bes Gestae: Evidence of defendants in a prosecution for conspiracy to corrupt a jury is admissible when it tends to con- tradict the state's case in connection with certain alleged acta done pursuant to the conspiracy and part of the res gestae. O'Donnell vs. People, 110 App. 250. OFFER OF EVIDENCE What Constitutes an Offer: Where no statement is made by counsel as to what he intended to prove by a witness, and no question is propounded to him, from which it can possibly be inferred that he knew anything of the material facts, error in sustaining objection to question cannot be successfully urged. Corcoran vs. Poncini, 35 App. 130; Gaffield vs. Scott, 33 App. 317; Nonotuck Silk Co. vs. Levy, 75 App. 55; Hovrard vs. Tedford, 70 App. 660; Giddings vs. McCumber, 51 App. 373; Hatterman vs. Thompson, 83 App. 217; XI 111. Notes, 190, §460. A conversation between counsel and court, to the effect that counsel desired to offer evidence upon a certain question, which the court declined to receive, does not amount to an offer of the evidence, and a refusal to admit it, upon which an assignment of eri'or can be based. Chi. City Ry. Co. vs. Carroll, 206 111. 318. A mere statement of an offer to prove is not anything upon which a court is called to act. The witnesses should be called and questioned, or documentary evidence produced. Martin vs. Hertz, 224 111. 84; Stevens vs. Newman, 68 App. 549. Right to Make Offer : — Examining Party: The examining party has the right to make an offer to prove the facts which he assumes his question will elicit. Maxwell vs. Habel, 92 App. 510; P. & C. Ins. Co., vs. Weise, 80 App. 499. — Ixiglit of Adversary: Party may offer portion of document, but adversary may offer and read remainder. Slingloff vs. Bruner, 174 111. 561; Vischer vs. N. W. E. Ry. Co., 171 App. 544. Form : — Specificness of Offer: Offer must be specific. Goodrich vs. City of Chicago, 218 111. 19; McLeod vs. Andrews, 116 App. 646. Must be so specific as to put court in the wrong in refusing to admit it. Russell vs. Lake, 68 App. 440; Kearney vs. Aetna Ins. Co., 109 App. 600. It is not error for court to refuse to admit evidence which con- stitutes no defense to action, but which may be proper for pur- pose of impeaching a witness, when such proof is offered as a defense alone. To make it admissible it should, be offered for the purpose of impeachment and not as a defense. ^■^^''" ■ Davis vs. Gibson, 70 App. 273. OFFER OF EVIDENCE 885 Counsel should make statement of what he expects the wit- ness will answer. Ittncr Brick Co. vs. Asbby, 198 111. 3&2; Home Guardian vs. Holt, 108 App. 578. When the materiality and relevancy of a question asked is ap- parent, it is not necessary, upon objection, to state what is ex- pected to be proven by it. Hair Co. vs. Ma nicy, 102 App. 570. Where documentary evidence is offered, should not merely name document but should disclose its contents. Chi. St. Ey. Co. vs. Capek, GS App. 500. — Pari Compelcnt: When the offer of testimony includes that which is admissible with that which is not, and the competent and incompetent are blended together, it is not the duty of the court to separate the legal from the illegal, but the whole may be re- jected Avhen objection is made. Donnan vs. Donnan, 25G 111. 244; People vs. Venard, 168 App. 2.74; Crcssy vs. Kimmel, 78 App. 27; Eiemensnider vs. Eiemensnider, 179 App. 209. — Exhibits En Masse: It is improper to offer en masse a large number of exhibits. Dowie vs. Priddle, IIG App. 184. Re-offer : Wliere counsel has obtained the ruling of the court that proof sought to be introduced is incompetent, and has saved his excep- tion, he need not press the question further in order to preserve the error. Maekin vs. Blythe, 35 App. 216. But the rule that where an adverse ruling has once been ob- tained, and exception taken, other offers governed by such rul- ing need not be made has no application to questions excluded on the ground of improper cross examination wdien defendant comes to put in defense. Hansen vs. Miller, 44 App. 550. If letters have been rejected on ground that they are second- ary (no notice to produce having been served) they should be re-offered if proof subsequently develops a claim upon the part of the addressee that the original letters had never been received. Int. Text Book Co. vs. Mackhorn, 158 App. 543. Presence of Jury: If the court should be of the opinion that statement of counsel is not made in good faith, or that it is calculated to improperly influence the jury, the jury may be ordered to retire while the statement is being made, or it may be made to the court so as not to be heard by the juiy. Maxwell vs. Habel, 92 App. 510. After the case had been argued by counsel to the jury, the court permitted counsel to offer, in presence of jury, to prove certain things by a witness who had previously testified in the case, which offer the court overruled. The permitting the offer to be made was complained of as error. While the witness was pre- viously on the stand, counsel attempted to state what was ex- pected to be proven by him, but the court, on objection, refused 886 OFFICERS to permit an offer of proof. Counsel have the riglit to make an offer of proof for the two-fold purpose of informing the court of what is expected to be proven, and of preserving an exception to the exclusion of the offered evidence, and there was no error in permitting the offer to be made. F. & C. Ins. Co. vs. Weise, 80 App. 499; C. & A. E. E. Co. vs. Shenk, 131 111. 283. As to Competency of Witnesses : If a witness be exlcuded from testifying as incompetent, an offer as to what he will testify to is not essential to save for re- view the question as to his competency. Kolber vs. Fi-ankenthal, 1.59 App. 382. But where a witness sought to be examined is competent as to certain facts, but not as a general witness, and he is objected to as incompetent, the party desiring his testimony should state what he proposes to prove by him, so that the court may know that it is proper. Otherwise the court cannot say there is any en-or in refusing to allow him to testify. Stewart vs. Kirk, 69 111. 509 ; Hobby vs. Ogden, 72 App. 242. OFFICERS See Quo Warranto, Parol, Records, Certificates, Judicial Notice. EXISTENCE OF OFFICE. Information in Nature of Quo Warranto : An information in the nature of a quo ivarromto will not lie to try the legal title of the relator to an alleged office which in fact and in law has no legal existence, and the legal existence must be affirmatively shown. People vs. Freeman, 242 111. 1.52; Hedrick vs. People, 221 111. 374. And an office cannot be legally established by proof of the ap- propriation of pul)lic money, by ordinance, to the payment of the salary or compensation of person acting as such officer. Nor by mere appointment and confirmation by council. Hedrick vs. People, 221 111. 374; Moon vs. Mayer, 214 111. 40. Collaterally in Question: The doctrine that there cannot be a de facto officer where there is not an office de jnre has no application to a case where a city council is authorized by statute to create an office, and a person is found exercising the function and duties of such office. In such case it will be presumed tliat the person so acting in a public capacity is duly authorized, until contrary is shown ; and it is not material how the question arises,— whether in a civil or crim- inal cas^, — nor whether the officer is or is not a party to the rec- ord, unless, being plaintiff, he unnecessarily avers title to the office. North vs. People, 139 111. 81. ELIGIBILITY. Presumption : The election and commission of one to a particular office raises OFFICERS 887 a strong: prpsnmption of his eligibility and this presumption must be overcome by satisfactory evidence before incumbent can be ousted. Smith vs. People, 44 111. 16; People vs. Connell, 28 App. 285. TITLE AND TENURE. Claim of Rights as Officer: When one claims rights as an officer by virtue of his office, it must appear that the office legally exists, and that he is lawfully entitled to hold same, and to exercise the duties and powers thereof. He must sliovv that he is an officer dc jure. It is not enough that as to the pu])lic or as to third persons he is acting in an official character, and that as to them his acts in his official capacity have the force and virtue of the acts of an officer de jure. Moon vs. Mayer, 214 111. 40; People vs. City of Chicago, 210 111. 479; Stott vs. City of Chicago, 205 111. 281; Mayfield vs. Moore, 53 111. 428. Where an officer justifies the commission of an act complained of, which purported to be done in his official capacity, it is nec- essary that he should show in defense not only that he was an act- ing officer, but also that he was an officer duly commissioned and qualified to act as such ; while as to all others, it is sufficient for him to show that he was acting as such officer. Schlencker vs. Eisley, 4 111. 483; Larsen vs. Ditto, 90 App. 384. Person acting in public employment under color of appoint- ment, presumed legally appointed. Colder vs. Bressler, 105 111. 419. Continuance in Office : Ordinarily, when a fact or relation is once shown to exist, it will be presumed to continue ; but it is doubtful whether such presumption will prevail when applied to an annual office, like that of city attorney. Linck vs. City of Litchfield, 141 111. 469. DUTIES. Presumption: The presumption always is that public authorities do their duty when performance is collaterally questioned. State vs. I. C. E. E. Co., 246 111. 188; City of Peoria vs. Cen. Natl. Bank, 224 111. 43; Hogue vs. Corbett, 156 111. 540; People vs. Trustees, 87 111. 41; Niantic Bank vs. Dermis, 37 111. 381; Conwell vs. Watkins, 71 111. 488; Woodward vs. Donovan, 167 App. 503; XII 111. Notes, 476. § 24. Where certificate of public officer contains contradictory state- ments compliance with law is presumed. Clark vs. Glos, 180 111. 556. No presumption can be indulged that a public officer will do that which the law forbids him to do. Lieb vs. Henderson, 91 111. 282; People vs. A. T. & S. P. Ey. Co., 261 111. 33. Nor is there any presumption that officers assumed to do that which thev had no authority or jurisdiction to do. Shields vs. Eoss, 158 111.' 214. It will not be presumed that engineer's estimate is a mistake or a fraudulent one. City of Chicago vs. Underwood, 258 111. 116; City of Chicago vs, McChesney, 240 111. 174. 888 OFFICERS Burden of Proof: A sheriff refusing or neglecting to levy an execution upon per- sonal property in possession of the debtor, can discharge himself from liability for false return only by showing that the property was not subject to levy, and the burden of proof rests ui)on him. Second Natl. Bank vs. Gilbert, 174 111. 485; People vs. Palmer, 46 111. 398; Bonnell vs. Bownuui, 53 111. 460. ADMISSIBILITY OF EVIDENCE. Actions on Official Bonds: — Bond: Certified copy of an official bond is admissible in evi- dence without preliminary proof of the loss of the original. Estate of Eanisey vs. People, 197 111. 572. — Approval: May be shown by parol. Bartlett vs. Board of Education, 59 111. 364; Estate of Ramsey vs. People, 197 111. 572. — Estoppel: If a public officer gives a bond under which he is allowed to receive money and does actually receive it b.y virtue of his office, he and his sureties are estopped to deny the validity of the bond. Estate of Ramsey vs. People, 197 111. 572. Sureties cannot be permitted to deny official character of prin- cipal. Meyer vs. Wiltshire, 92 111. 395; Allbee vs. People, 22 111. 533. — Admissions: In suit on treasurer's bond, an admission by him that he owed the township a certain amount is evidence of that fact, not only against himself but against his co-obligors. Swift vs. Trustee's of Schools, 189 111. 581; L'hode vs. McLean, 101 111. 467; People vs. Title G. & S. Co., 156 App. 488. And if such admission be proved, liis successor in office may, without producing the books, testify that the books showed that the party had received such an amount and failed to turn it over. Swift vs. Trustees of Schools, 189 111. 584. — Books and Records: Where the books upon which the en- tries of a public officer are made are such as the law requires to be kept so that they constitute the official record of the acts per- formed by him in the discharge of his official duties, such entries are, on general principles, admissible in evidence for or against all persons having any interest in them or the facts to which they relate, including the officer and sureties on his bond. Cassidy vs. Trustees of Schools, 105 111. 560; Building Association vs. Cochrane, 103 App. 29. And this whether the entries were made by official or his book- keeper, the presumption being that he would not permit improper or incorrect charges to stand uncorrected. Cawley vs. People, 95 111. 249. So the report of a county treasurer, in his handwriting, pre- sented to county board, as well as record of board approving them, are competent evidence against his sureties in action on his official bond. Stern vs. People, 102 111. 541. Where books upon which entries of a public officer are made are such as law requires to be kept, so that they constitute the official record of the acts performed by him in discharge of his ORDER OF PROOF 889 official duties, such entries ai-e cnnelnsive upon principal and sure- ties. Town of Cicero vs. Grisko, 240 111. 220; Cowdon vs. Trustees of Schools, 23.5 111. 604; Loiifjau vs. Taylor, 1.30 111. 412; Fogarty vs. Ream, 100 Til. ?A\G; XIII 111. Notes, 1030, §2.''). But records which require an adjudication or approval by a court are not conclusive until so ai)proved or adjudicated upon. People vs. Hull'uiau, 182 111. 390. OPINION EVIDENCE See Expert and Opinion, ORDER OF PROOF See Offer of Evidence, Cross Examination, Leading Ques- tions, Impeachment, Rebuttal, Recalling Witnesses. Determination of Order: The order in which evidence shall be received is a matter rest- ing wholly in the discretion of the trial court. Mayer vs. Breusinger, ISO 111. 110; Board of Comrs. vs. Harlev, 174 III. 412; Brenuan vs. People, 113 App. 361; Busse vs. Hemp, 48 App. 195; Floto vs. Floto, 233 111. 605; XIV 111. Notes, 848, §§ 73, et seq. The order of testimony, both as regards the examination of the particular witnesses and the general course of the trial is within the discretion of the court. McEuiry vs. Tri-City Ey. Co., 179 App. 152. A party has a right to introduce his evidence in the order he may prefer, provided he will connect it and thus render it material to the issue. Mix vs. Osby, 62 111. 193; Wilding vs. Horner, 50 111. 50. The order in which a party shall otfer his evidence is for his counsel to determine, unless it is made to aj^pear to the court that some undue advantage of the opposing party is thereby at- tempted. MeDaniel vs. Logi, 143 111. 487. The usual practice is that the party upon whom the burden of proof rests must, in the first instance, produce all the proof he proposes to offer, and after his adversary has closed his proof, he may only introduce such proof as directly rebuts that of his adversary. Muller vs. Eebham, 94 111. 142. The time of receiving evidence is much in the court's discre- tion and it would not be ground for reversing a judgment that evidence was permitted to be introduced in rebuttal which in strictness was not properly so receivable. Upstone vs. People, 109 111. 169. Evidence Depending- on Preliminary Proof: Where evidence is offered whicli, at the time, does not appear to have any relation to the case, and the offer to introduce is not 890 ORDER OF PROOF accompanied by a statement that its relevancy will appear in the progress of the trial, it may properly be rejected, and its exclu- sion under such circumstances will not become erroneous because it may afterwards become relevant in the further development of the ease; in such event the rejected evidence should be offered again, when, if excluded, exception will lie. Lonergan vs. Stewart, 55 111. 44; City of Alton vs. Hartford Ins. Co., 72 111. 328; Dunning vs. Mathews, 16 111. 308; Cf. Comstoek vs. Gage, 91 111. 328. It often happens that a case must be established by a number of facts, any one of which by itself would be of little weight, but all of which, taken together, would prove the issue. Evidence which, standing alone, may not be sufficient to make out a case, may aid in doing so. Testimony not manifestly relevant should not be excluded where its relevancy may be made to appear by proof aliunde. The ciuestion is, whether the offered proof tends to support the defense or cause of action. All evidence tending to prove either of the material facts is admissible, although it may not alone establish the whole case. Central Ey. Co. vs. AUniou, 147 111.- 476; City of Chicago vs. Dalle, 115 111. 386. It is the right of a party, when he offers evidence in its proper order, which proves or tends to prove any necessary fact in the case, to have it go to the jury, for the reasonable presumption is that it will be followed by such other proof as is necessary for its proper connection, and if it is not, it then becomes irrelevant aud if desired, may be withdrawn from the jury. Rogers vs. Brent, 10 111. 573; Chi. City Ey. Co. vs. Hyndshaw, 116 App. 367, Where evidence is refused admission on general objection court sustaining objection for sole reason as to order of proof should so state. Teenies vs. Johnson, 179 App. 32. It is proper to permit testimony to be offered upon promise of counsel it would be subsequently connected with transaction in issue, but should be excluded unless evidence is subsequently of- fered which tends' to show its relevancy. It is not necessary that it be connected by undoubted evidence. If sufficient evidence is offered to make it a fair question of fact for the jury, it should not be excluded. People vs. Smith, 254 111. 167. Party may first show the acts and statements of one claiming to be an agent, to bind the principal, if he will follow it with proof of the agency, and show the agent's acts were within the scope of his authority. Mix vs. Osby, 62 111. 193. It is competent for plaintiff, in action for causing the intox- ication of her husband, to testify to the fact of intoxication and damage sustained by reason thereof, before proving that defend- ant caused the intoxication, in whole or in part, although, in order to recover, she must prove the latter fact in some way, either by her own testimony or others. Hall vs. Barnes, 82 111. 228. ORDER OF PROOF 891 A plat intended to be used in evidence should first be shown to be correct but when it is exhibited and used for reference without such preliminary proof, and where no evidence is afterwards in- troduced of its correctness, such use is not reversible error. Williams vs. Carterville, 97 App. 160. Admission of evidence on promise to supply necessary prelimi- nary proof is prejudicial error when such evidence is not sup- plied. Hoxsey vs. St. L. & S. Ey. Co., 171 App. 76. Where the power of an agent to make a contract is disputed, the most convenient and natural course to pursue is, first, to es- tablish the fact that an agreement was made, by showing its terms and the names of the parties who officiated in settling them, and then to show that those who assumed to act had the requisite au- thority to do so. E. & P. Ej. Co. vs. Cecil, 112 111. ISO. After Both Parties Have Rested: After a party has closed his evidence it is a matter of discre- tion whether the court will permit him to give further testimony, and the exercise of such discretion is not reviewable. People vs. Lukozsus, 242 111. 101; Hartrich vs. Hawes, 202 111. 334; First Natl. Bank vs. L. E. W. Ey. Co., 174 111. 36; Washington Ice Co. vs. Bradley, 171 111. 255; C. & N. W. Ey. Co. vs. Janiieson, 112 App. 69; Eowley vs. Hughes, 40 111. 316; Hunt vs. Wier, 29 111. 83. After Argnment of Counsel: The admission of testimony after the arguments have been, made and the instructions read, rests in the discretion of court, and the exercise of such discretion is not ground for reversal unless some injury has been occasioned to the party complaining. Schwittors vs. Springer, 236 111. 271; I. I). & W. Ey. Co. vs. Hendriau, 190 111. 501; Stivers vs. Conklin, 103 App. 288; Maxwell vs. Durkin, 185 111. 546; Eobinson vs. Kirkwood, 91 App. 54; Busse vs. Hemp, 48 App. 195. The discretion is not an arbitrary but a judicial discretion. I. D. & W. Ey. Co. vs. Hendrian, 190 111. 501. Re-opening- Case : Court may allow plaintiff to re-open his case and introduce addi- tional evidence after motion to direct verdict. Garretson vs. Fox, 154 App. 58. Anticipation of Defense : Party anticipating that evidence will be introduced in rebut- tal may introduce same. Kenny vs. Marquette Cement Co., 149 App. 173. Court may, in its discretion, allow plaintiff to anticipate a sug- gested defense and produce evidence to refute it. Wilkinson vs. Aetnae Ins. Co., 144 App. 38; Dimmick vs. Downs, 82 111. 570. The court may permit a party to introduce evidence in support of his ease or defense during the cross examination of his adver- saries witnesses but the refusal of such permission is not error. McEniry vs. Tri-City Ey. Co., 179 App. 152. In slander for having charged plaintiff with having confessed to a person that she stole the money of another, when defendant 892 ORDINANCES seeks to justify, there is no error in allowing plaintiff to prove by such person that no confession was made, before defendant iiad offered any evidence in reference to the alleged confession. Hintz vs. Graupuer, 138 ill. 158. But in action to recover damages for alleged libel, it is im- proper to permit plaintiff, in first instance, before any other evi- dence is given, to introduce witnesses to testify as to his general character, Aetna Ins. Co. vs. Paul, 23 App. 611. Documentary Evidence: Defendant is not entitled to introduce documentary evidence until plaintiff has closed his case in chief. Osgood vs. Poole, 165 App. 63. Proceeding's to Contest Will: Opinions of experts, based upon facts testified to by witnesses of will proponent, should be offered before such proponent closes his evidence in chief, but after contestants have offered their proof as to testamentary capacity, such experts may be exam- ined as to their conclusions drawn from such proof. Albrecht vs. Hittle, 248 111. 72. Pending- Cross Examination: It is proper to refuse to allow a party to introduce evidence during the cross examination of a witness for the adverse party. Wheeler & Wilson vs. Barrett, 70 App. 222. Except by consent of parties and permission of the court a de- fendant cannot, on cross examination of plaintiff's witness, open up his defense by interrogating such witness in chief. Wheeler & Wilson vs. Barrett, 172 111. 610. When witness admits on cross examination his signature to a document which tends to impeach his testimony, such instru- ment is properly excluded as evidence until offered as rebuttal. Hav- ing laid the foundation for such evidence by the question to the wit- ness on cross examination, the proper time to offer the paper as impeaching evidence would be when it came turn of adversary to offer evidence. Payton vs. Morgan Park, 172 111. 102. Trials by Court: Where case is tried by court without a jury, it is proper for court to permit a party to re-open case and introduce further evi- dence. Burgener vs. Lippold, 128 App. 590. ORDINANCES See Judicial Notice, Motives, Speed, Sidewalks. Presumptions : — Validity of Ordinance: The presumption is always in fa- vor of the validity of a statute or ordinance passed in pursuance of competent legal authority. If the facts shown are susceptible ORDINANCES 893 of tAvo constructions, one of wliicli will support and the other defeat the statute, the formej- will be adopted. Springfield vs. Postal Tel. Co., 253 111. 340; People vs. G. T. Ry. Co., 232 111. 292; Ry Co. vs. Averill, 224 111. 516; Harmon v^. City of Chicago, 140 111. 374; City of Springfield vs. Postal Tel. Co. 164 App. 276; XIII 111. Notes, 750-751, §§85, et seq. An ordinance re^ilating the operation of railroad trains within city limits is presuinptively a valid exercise of police power, and before it can be held to be invalid, it must be manifest that the discretion of the city authorities has been arbitrarily and unrea- sonably exercised. C. E. I. & P. Ry. Co. vs. Steckmau, 224 111. 500; C. & A. R. R. Co. vs. Averill, 224 111. 516. The production of a duly certiiied copy of an ordinance of a city acting under the general incorporation law, affords prima facie evidence that every step has been taken with reference to it to make it a valid ordinance. If the party against whom the ordinance is sought to be used desires to controvert the fact that it was duly passed by a majority vote on the call of the ayes and noes, it devolves upon bim to produce the journal, and thereby overcome the prima facie case made by the production of the ordinance, or a certified copy thereof. Prairie DiiRoclier vs. Milling Co., 248 111. 57; Lindsay vs. City of Chicago, 115 111. 120; I. C.^E. R. Co. vs. Collison, 134 App. 443. — Reaso7iaJ)lencss of Ordinances: Ordinances are presumed to be reasonable when passed within powers of city. City of Chicago vs. Shaw Livery Co., 258 111. 409; City of Springfield vs. Postal Tel. Co., 164 App. 276; Conrad vs. Springfield Ry. Co., 145 App. 565. — From Bool-s and Pamphlets: Printed book or pamphlet is pritna fade proof of ordinance. McGregor vs. Village of Lovington, 48 App. 202. The book of ordinances of a village incorporated under the gen- eral law, containing an ordinance, is prima facie evidence of its passage. Barr vs. Village of Auburn, 89 111. 361. — Continvance of Ordinance: Presumption is that ordinance shown to have been passed is still in force, unless contrary ap- pears. St. L. A. & T. H. Ry Co. vs. Eggmann, 161 111. 155. Burden of Proof : Burden of showing ordinance unreasonable rests upon party seeking to set same aside. C. & A. Ry. Co. vs. Averill, 224 111. 516. City authorities are vested with broad discretion in the mat- ter of making local improvement, and burden is on objector to show an improvement ordinance is unreasonable, Marshall vs. Peoi^le, 219 111. 99. It is not incumbent upon party offering ordinance in evidence to prove that the book of revised ordinances offered by him was the latest revision. It is sufficient to prove the existence of such ordinance, and if it has been repealed or superseded by a later ordinance, the opposing party has burden of showing same. Goetz vs. Koehler, 20 App. 233. 894 ORDlNAxNCES Admissibility of Evidence Generally : — Books and Pamphlets: Where the ordinances of a city or viUage, incorporated under the general law, are printed in a book or pamphlet form, purporting to be published by authority of city council or board of trustees, such book or pamphlet is evi- dence of passage and contents of ordinances therein contained, and of their legal publication. Lindsay vs. City of Cliicago, 115 111. 120; People vs. Maxon, 139 111 306; I. C. E, E. Co. vs. Warner, 229 111. 91; Baxter vs. C. C. C. & St. L. Ey. Co., 151 App. 118; I C. E. E. Co. vs. White- akre, 122 App. 331; Hinchliff vs. Eobinsou, 118 App. 450; XIII 111. Notes, 752, § 105. The court may refuse to admit in evidence an ordinance printed in a book which does not appear to have been published by the authority of the municipality claimed to have adopted it. L. N. A. & C. Ey. Co. vs. Patchen, 167 111. 204. Though not styled precisely as required by the ordinance di- recting its publication, printed book or pamphlet is admissible if it purports to be published by the authority of the city council. C. & A. E. E. Co. vs. Winters, 65 App. 435. A book entitled "Charter and Revised Ordinances of the City of Bloomington, with the Statutes of the State of Illinois and Con- stitutional Provisions Relating to the City of Bloomington," etc., purporting to be published by the authority of the city council, is sufficient to entitle it to be received asi evidence of the passage and publication of such ordinances. C. & A. E. E. Co. vs. Winters, 65 App. 435, Pamphlet bearing on its title page, "Revised ordinances of the town of Petersburg, adopted 10th September, 1867. Printed and published by authority of Board of Trastees of said town of Pet- ersburg. Printed at the Menard County Axis office, by C. Clay, 1867." Held, properly admitted. Hensoldt vs. Town of Petersburg, 63 111. 111. Admitting in evidence, a pamphlet of ordinances not purport- ing to be puUisked by the authority of the village trustees but only to be revised and compiled by such authority is harmless, where original ordinance, in manuscript form, with the record proof of its passage, is also introduced. Winn vs. C. G. C. & St. L. Ey. Co., 239 111. 132. A pamphlet containing a city ordinance, but not purporting to be a publication of the ordinance by authority of city council, is not admissible to establish such ordinance, though the book con- tains official record of proceedings of city council. Bullis vs. City of Chicago, 235 111. 472. The certificate of the village clerk, printed on a pamphlet or printed ordinances, certifying that such pamphlet was published by the authority of the president and board of trustees of the village, entitles the pamphlet to be received as evidence of the passage and legal publication of the ordinances of the village. C. & E. I. E. E. Co. vs. Beaver, 199 111. 34. Ordinance is not proven by introduction of pamphlet purport- ing to contain same, but which does not purport to have been pub- 0RDINANCP:S 895 lished by authority of council, and where no certificate has been appended thereto. Kroll vs. C. B. & Q. Ry. Co., 150 App. 438 j I. & I M. R. R. Co. vs. Minuihan, 129 App. 333. — Ordinance Record: Where mayor testified that the book from which the ordinances were read, marked "City Records," was the original record of the city, wlierein was recorded all city ordi- nances; that it was kept in the office occupied by city clerk and himself, and he had access to it, the ordinances were sufficiently proven to permit them to be read in evidence without proof of their pu})lication. City of Eoekford vs. Hildebrand, 61 111. 155. — Copies of Ordinance: All ordinances of a city or village incorporated under the general law, and their publication, may be proven by certificates of the city or village clerk, under seal of the corporation. A certified copy of an ordinance, under seal of corporation, made by the clerk, will have the same force and effect as evidence as a printed book of ordinances, which is made evidence of the publication and passage of an ordinance. Prairie DuRoeher vs. Milling Co., 248 111. 57 ; Lindsay vs. City of Chicago, 115 111. 120; I. C. R. R. Go. vs. Collison, 134 App. 443. A certified copy of the ordinance attested by the clerk, under seal of the corporation, is competent evidence of the passage of the ordinance. T. H. & I. R. E. Co. vs. Voelker, 129 111. 540; Pendergast vs. City of Peru, 20 111. 52. Copies of ordinance, certified by city clerk, authenticated by corporate seal, are admissible though ordinance not signed by Mayor. T. H. & I. R. R. Co. vs. Voelker, 129 111. 540. Copies of ordinances and council proceedings, certified by clerk, are competent. Boyd vs. C. B. & Q. Ry. Co., 103 App. 199. A copy of a special assessment ordinance, properly certified to be a true copy of the original made upon a blank from which, ap- parently, the printed matter not corresponding with the original ordinance, was stricken out and other provisions inserted with pen and ink, and making ordinance harmonious throughout, is properly admitted in evidence without extrinsic explanation of the change. Gage vs. City of Chicago, 225 111. 218; Gage vs. City of Chicago, 223 111. 602. Clerk's certificate is not invalidated by an interlineation, where city attorney testifies, without contradiction, that he made same by consent of the clerk, and in his presence, and before certificate was signed. Sargent vs. Evauston, 154 111. 268. A printed copy of a certificate by president of board of trus- tees and village clerk to the effect that ordinances contained in the pamphlet wherein such printed copy of the certificate ap- pears, are true and correct copies of the ordinances of the vil- lage, is of no legal effect as a certificate, and a variance between the certificate and the memorandum appearing at the bottom of 896 ORDlxNANCES an ordinance as to date of passage and publication does not af- fect the ordinance nor render it inadmissible whei'e pamphlet purports to be printed by authority. I. C. K. E. Co. vs. Warner, 229 111. 91. Ordinances are properly proved by copies sworn to upon the trial, by witness as having been compared by him with the orig- inals and found to be true and correct And this dispenses with the necessity of producing the originals and makes copies of the ordinances original evidence without any certificate whatever. C. C. C. & St. L. Ey. Co. vs. Bender, 09 App. 26:3; City of Chicago vs. English, 80 App. 163. Ordinances of foreign state may be proved by sworn copy. L. N. A. & C. E. E. Co. vs. Shires, 108 111. 617. — Adoption: It is improper to receive evidence which merely goes to the motive by which a municipality is actuated in pass- ing an ordinance. City of Aniboy vs. I. C. E. E. Co., 236 III. 237. But matters of fact appearing on face of ordinance may be considered in determining its validity. People vs. Wieboldt, 233 111. 572; Smith vs. McDowell, 148 111. 51; Ligare vs. Chicago, 135 111. 46. And may be determined from the records of tlie city council. Deland vs. Dixon Power Co., 225 111. 212; People vs. Clean Street Co., 225 in. 470. The journal of the village board must show that an ordinance received the concurrence of the majority, and such fact cannot be supplied by parol. People vs. Ehoades, 231 111. 270; People vs. McCullough, 210 111. 488. — To Fix Penaltij for Violation of Ordinance : In suit by a city for violation of a smoke ordinance, proof that the building was equipped wdth a heating plant of the most approved type, and that owner had done all that skill could devise to prevent the smoke from escaping from the stack, should be admitted for con- sideration of jury, to guide them in fixing the penalty. City of Chicago vs. Knobel, 232 111. 112. — To Show Creation of Monopoly hy Ordinance: Where an ordinance for pavement to be constructed by lowest responsible bidder requires the cement to be made from asphaltum "obtained from Pitch Lake, in the Island of Trinidad," evidence that such lake is owned by a single corporation engaged in manufacturing cement, and that the asphaltum from such lake is not superior to that used by competing cement manufacturers, may be intro- duced to show that the ordinance tends to prevent competition and to create a monopoly. Fishburn vs. City of Chicago, 171 111. 338. — Financial Effect of Ordinance: Financial effect of an ordi- nance fixing rate of water company, is admissible upon question of reasonableness of such rate. L. F. Water Co. vs. Lake Forest, 154 App. 184. Admissibility of Ordinances : — In General: Ordinances of city are admissible on question of notice bv citv of defects and obstructions of streets. Bibbins vs. City of Chicago, 193 111. 359. ORDINANCES 897 — As Determined hy the Pleadings: When a cause of action is predicated on an ordinance, the ordinance must be specially pleaded, but when invoked as a defense, it is admissible under a plea of general issue. Flynii vs. Chi. City Ej. Co., 250 111. 460; Echert vs. Collot, 46 App. 361. Where an ordinance is pleaded, although in an imperfect man- ner, court may admit it in evidence at trial in aljsence of a de- murrer to the declaration. I. C. E. E. Co. vs. Ashline, 171 111. 313. Though title of ordinance may be defectively stated it may be admitted. DeScheppers vs. C. E. I. P. Ey. Co., 179 App. 298. In action against railway company for injury by escape of fire from locomotive, an ordinance limiting speed of passenger trains within the city, is admissible, when count sets out ordinance. L. E. & W. Ey. Co. vs. Middlecoff, 150 111. 27. An ordinance may be properly excluded where there is no alle- gation in the declaration of an ordinance regulating the matter. U. S. Brew. Co. vs. StoUenberg, 211 111. 531; I. C. E. E. Co. vs. God- frey, 71 111. 500; Flyim vs. Chi. City Ey. Co., 158 App. 405. — Authentication: The original ordinance under which a spe- cial tax for a sidewalk was levied is admissible in evidence upon application for judgment of sale, when identified by testimony of city clerk. People vs. Smith, 201 111. 454. — Admissihility in Whole or in Part: In prosecution for vio- lation of a particular section of an ordinance, it is proper to admit entire ordinance, where such practice will aid jury in a fair understanding of the particular section forming tiie basis of the prosecution. Weinberg vs. Village of Augusta, 116 App. 423. — Defective or Irregidar Ordinances: Where negligence charged is driving engine through city without warning, con- trary to ordinance, such ordinance is admissible regardless of defects in same, where company operated in conformity with its provisions. Eoseuthal vs. C. & A. E. E. Co., 164 App. 221. Where clerk's certificate to an ordinance shows when the ordi- nance was passed and published, and is complete in everj^ way except that it has no date, the want of a date is not ground for excluding the ordinance. Collison vs. I. C. E. E. Co., 239 111. 532. The fact that clerk's certificate is attached to face of improve- ment ordinance and refers to the "foregoing ordinance," instead of being attached to back of same, is not material. Heiple vs. City of Washington, 219 111. 604. — Effect of Recital of Reason for Passage: A city ordinance otherwise competent cannot be rejected as evidence because of recitals in the preamble giving reasons for its passage. P. Ft. W. & C. Ey. Co. vs. Lyons, 159 111. 576. — Different Ordinances Covering Same Subject Matter: A "fire ordinance" fixing the penalty for piling lumber within cer- Ev.— 5 7 898 ORDINANCES tain distance of any wood working establishment, having been introduced on question of damages by defendant in proceeding to condemn a strip of land otf a tract leased by it for a box fac- tory and for storing lumber, the petitioner may introduce a ' ' build- ing ordinance," passed later, reducing the distance fixed by the lire ordinance. Cook & Co. vs. Sanitary District, 177 111. 599. — In Actions for Injuries from Defective Sidewalks: An ordi- nance requiring the owners of abutting property to repair a side- walk, passed some months prior to time plaintiff was injured on such walk, is admissible to show notice. City of Beardstown vs. Clark, 204 111. 524. Ordinances of city, when sued for injury resulting from neglect to keep sidewalks in a safe condition, are admissible when they tend to show it has control thereof and had taken the streets under its cognizance. Such ordinances are relevant to the issue and therefore proper evidence, and if likely to mislead, the de- fendant should ask instructions to obviate such tendency and confine the evidence to its legitimate puipose. City of Eockford vs. Hildebrand, 61 111. 155. Where negligence alleged is permitting obstructions to remain for several months, ordinances making it the duty of policemen to endeavor to remove obstructions from sidewalks or report the same to the department of public works are admissible on ques- tion of notice unless such notice is not controverted. Bibbius vs. City of Chicago, 193 III. 359. Ordinances of defendant city making it the duty of certain officials to keep the streets and sidewalks in good condition, are admissible, the purpose of the evidence being to show that com- plaints of defective condition of the walk were made to the proper parties. City of Gibson vs. Murray, 216 111. 589. — Regulating Driving of Horses: Ordinance regulating the driving of horses on public streets is properly admitted in action for damages from careless driving, where, by instruction, the jury are left to determine whether defendant violated the ordi- nance, and if so, whether its violation caused or contributed to the injury. Brink's City Express Co. vs. Kinnare, 168 111. 643. — Regulating Street Railivays: In aetion for an injury by being thrown under a passing car while attempting to hold a frightened horse, a city ordinance providing that upon the ap- pearance of danger to any person upon or near the track, the car must be stopped, if an injury will thereby be averted is not admissible. Eockford City Ey. Co. vs. Blake, 173 111. 354. In action for wrongful ejection from a street car, by a con- ductor who refused to accept transfer, an ordinance showing the validity of transfers is admissible. Chi. U. Trae. Co. vs. Bretthauer, 223 111. 522. An ordinance providing when cars shall stop at street inter- sections is incompetent for purpose of showing where a street ORDINANCES 899 car should stop at a point where the cars merely turn a street corner. W. Chi. St. Ry. Co. vs. Brown, 112 App. 351. An ordinance requiring an electric railway to maintain guard wires above the electric wires, where the wires of other com- panies are suspended above them, is not admissible in action against a telegraph company for injuries received by a lineman in its employ coming in contact with an uninsulated and unguarded feed wire of such railway company, where the offered evidence is not accompanied by any promise to show that tlie telegraph com- pany relied upon compliance by the railway company with the ordinance. Postal Telegraph Co. vs. Likes, 225 111. 249. Proof of ordinance restricting speed of a car over a bridge, in- admissible where there was no negligence charged based upon speed of ear. E. A. & S. Trac. Co. vs. Hench, 132 App. 535. — Regulating Railroads: Ordinance providing that trains when backing "shall have a conspicuous light in the rear car or en- gine," etc., is admissible under evidence that servants of defend- ant, in the night time, uncoupled the rear car of a switching train Avhile moving backwards, and "kicked" it in upon a siding with- out a light. C. & A. E. E. Co. vs. O'Neil, 172 111. 527. Where the negligence charged is the violation of a city ordi- nance regulating the movement of trains within the city limits, the ordinance is admissible in evidence, as proof of its existence is a necessary part of plaintiff's case. E. St.*L. By. Co. vs. Eggmaun, 170 111. 538; I. C. R. E. Co. vs. Gil bert, 157 111. 354; St. L. A. & T. H. Ry. Co. vs. Eggmann, 161 111. 155. In action for negligence in running a train of cars at a pro- hibited rate of speed, a section of the ordinance regulating the speed of trains was offered in evidence and admitted. The authen- ticity of the ordinance was admitted, but the admission of the same was objected to upon various specific grounds, but not upon the ground that it was not in force at time of death of intestate. The defendant, by admitting the authenticity of the book of ordi- nances, and raising no objection as to date of ordinance, raised a strong inference that the ordinance appeared by the book to have been in force at date of accident. A. T. & S. F. Ry. Co. vs. Feehan, 149 111. 202. Ordinance requiring the continuous ringing of a locomotive bell within two hundred feet of street crossings is admissible under averment in declaration charging negligence in failing to ring such bell for eighty rods before reaching such crossing, where proof made that the crossings are so numerous as to make the ring- iug for two hundred feet and for eighty rods practically the same thing. I. C. E. E. Co. vs. Ashline, 171 111. 313. Ordinance restricting the speed of ti'ains is incompetent in action for injuries arising from a collision of the trains of two 900 ORDINANCES companies, where such ordinance is offered by defendant for purpose of showing contributory negligence of plaintiff, who was a fireman on one of the trains, and who did not have control of the operation thereof. C. & A. Ry. Co. vs. Vipond, 11^ App. 558. — Regulating Tanks and Boilers: Where the declaration counted upon an ordinance which made it unlawful to operate a tank subject to steam pressure without hrst having obtained the inspection and approval thereof by inspector of boilers, and the evidence showed that the tank in question was subject to steam pressure, not only at time of accident, but occasionally prior thereto, the ordinance was properly admitted. Natl. Woodenware Co. vs. Smith, 108 App. 477. — -Street Extensions: In proceeding to condemn land for the extension of a street, under petition, the jury have nothing to do with the ordinance and it is ther(>fore enough to set it out in the petition. Its sufficiency to authorize the proceeding to con- demn is for the court alone. Cahill vs. Village of Norwood Park, 149 111. 156. Weight and Sufficiency : — Ordinance Books: Book of ordinances published by au- thority of proper persons is sufficient to establish. Plantc vs. I. C. R. R. Co., 14S App. 609. Record book of ordinances, showing ordinances, attestation, ap- proval and proof of posting, is sufficient to establish proper post- ing of ordinances. Douglas vs. Wabash Ry. Co., 149 App. 612. — To Show Existence of Ordinance: The existence of one ordi- nance is not proven by introduction in evidence of resolutions and other ordinances, referring to purported ordinance. Bullis vs. City of Chicago, 235 Til. 472. — To Show Failure to Pass Ordinance: To overcome the prima facie proof made by introduction of book of ordinances in evi- dence it is not sufficient that the journal of the proceedings of the municipal corporation has cast a doubt upon the validity of the ordinance by giving incorrectly the date of its passage and the title of the chapter in which it is included, but it must be shown that the ordinance was, in fact, never passed. C. & A. Ry. Co. vs. Wilson, 225 111. 50. — To Show Puhlieation: The certificate of the village clerk of the due publication of an ordinance is made by the statute suf- ficient evidence of that fact. Whether published in book or pam- phlet form, or written notice of its passage has been posted in the village is immaterial. It is sufficient to publish same in a newspaper of the village. Moss vs. Village of Oakland, 88 111. 109; Chamberlain vs. Litchfield, 56 App. 652. Such certificate must show time and place of publication. TTiitchiiison vs. Mt. Vernon, 40 App. 19. Degree of Proof : In action to recover penalty or fine for the violation of a town OUSTER 901 ordinance, it is error to instruct ibe jury that a preponderance of the evidence, only, is required to convict. Euth vs. City of Abingdon, SO 111. 418; A. T. & S. F. Ry. vs. Peo- ple, 227 111. 270; T. P. & W. liy. Co. vs. Foster, 43 111. 480. Validity : Question whether ordinance is valid cannot be left to the jury.' The only question for the jury is whether the evidence establishes a violation of the terms of the ordinance. City of Bushnell vs. C. B. & Q. Ey. Co., 259 111. 391. Objections: Waiver of objection on grounds of absence of seal from certifi- cate of city clerk to improvement ordinance results from failure to object upon such ground at time of its introduction. Billings vs. City of Chicago, 167 111. 3r)7. Specific objection is essential to save the question of defect in certificate. Ewert vs. Village of West Springs, 180 111. 318. OUSTER Weight and Sufficiency: — By Co-Tcnant: To establish ouster by a co-tenant, the evi- dence must be stronger than is necessary to establish ordinary adverse possession. Long vs. Morrison, 251 111. 143; Lambert vs. Hemler, 244 111. 254; Nickrans vs. Wilk, 161 111. 76; XI 111. Notes 70, § 80. — Breach of Covenant: It is sufficient to show that there was, at the time the covenant was made, a person in possession hold- ing under an apparent title. Moore vs. Vail, 17 111. 185. Or an eviction under a paramount title, the act of the grantor. Joneg v§. Wq,rner, 81 lU. 343 ; Dugger vs. Oglesby, 3 App. 94. OWNERSHIP See Title. Necessity of Proof : Where the question of ownership is one of inducement, proof thereof is not necessary unless ownership is expressly denied. Brimhikl vs. Union Trac. Co., 239 111. 621 ; Chi. Trac. Co. vs. Jerka, 227 111. 95; Johnson vs. Johnson, 166 App. 422; City vs. Durham Tug Co., 161 App. 307; Cohen vs. Toy Gun Mfg. Co., 170 App. 611; Wendelin vs. Chi. City Ey. Co., 170 App. 374; Clark vs. Wisr. Cent. Ey. Co., 177 App. 620; Thomas vs. Anthony, 261 111. 288. Where a liability is charged against a railway company, on ac- count of acts of negligence committed by its lessee, unless there is a special plea denying the relationship of lessor and lesssee, the defendant will be regarded as having admitted the relationship. If defendant wishes to challenge right in which plaintiff sues, or character in which defendant is sued, it must be done by special pleas. Taylor vs. P. & E. E. E. Co., 156 App. 151. 902 OWNERSHIP A plea of the general issue filed by city in action against it for injuries sustained upon an alleged street, does not admit the ex- istence of such street and its control by such city. Campton vs. Decatur, J5J A])p. 161. Presumption from Possession : — Chattels Generally: Party in possession of personal prop- erty is presumed to be the owner of it, possession being one of the strongest evidences of title to personal property. Gilbert vs. Natl. Cash Eeg. Co., 176 111. 288; Johnson vs. Milmine, 150 App. 208. The possession of personal property is prima facie evidence of ownership, and the assertion that such property belongs to an- other will not rebut presumption that it is property of possessor. Eoberts vs. Haskell, 20 111. 59. The fact a party was in actual possession of a building, which was personal property, making and paying for repairs upon it, offering to sell it, and exercising other acts of ownership, furnish presumptive evidence of ownership in him, subject to be rebut- ted by adverse claimant. If it be shown such person was agent, employed to superintend making such repairs, then no title could be based upon such acts of ownership. Amiek vs. Young, 69 111. 542. The possession of personal property is prima facie evidence of ownership, but it may in most cases be rebutted. The possession of agents, factors, brokers, common carriers, warehousemen, me- chanics and bailees of like character is not fraudulent per se. In such cases the possession must be shown to accompany the owner- ship to render such property liable for the debts of the custo- dian of the property. Peters vs. Smith, 42 111. 417. Possession of personal property, is prima facie evidence of own- ership, sufficient until overcome by proof, yet the prima facie case created by the possession may be rebutted by the circum- stances attending the possession. Eengel vs. Schoden, 178 App. 151; Bergen vs. Riggs, 34 111. 170. — Promissory Notes: The possession of personal property is prima facie evidence of ownership, and the term "personal prop- erty" applies to notes and money as well as to goods and chat- tels. Brownell vs. Dixon, 37 111. 198; Lewis vs. Lewis, 150 App. 354. Possession of a negotiable note is prima facie evidence of own- ership by the possessor. Henderson vs. Danisson, 157 111. 379; Ransom vs. Jones, 2 111. 291; XI 111. Notes 628, § 377. And this though the note be unindorsed. Martin vs. Martin, 174 111. 371. The possession of a promissory note is presumptive evidence of ownership ; but that ownership is limited by the statements of the possessor as to the character of his possession. Henry vs. Eddy, 34 111. 508. A party holding a bill or note with a blank indorsement on it, is presumed to be the legal owner of the instrument. Burnap vs. Cook, 32 111. 168. OWNERSHIP 903 Possession, unattended by circumstances which in a reasonable mind ought to excite suspicion or distrust, or put the party on inquiry, is prima facie evidence of title. But the holder of a note which has been negotiated may sometimes be called upon to show in what manner he acquired possession and that he paid a con- sideration for the same. McConnell vs. Hodson, 7 111. 640; Garvin vs. Wiswell, 83 111. 215. The mere possession of a promissory note or bond is prima facie evidence of the legal title to the instrument, and of the right of one in possession to sue thereon, and in the case of an instru- ment of that character made payable to some other person than the one in possession, the presumption arising from the possession is that the one in possession may sue thereon in the name of the person to whom it is made payable. Woodward vs. Donovan, 167 App. 503. — Drafts: The rule of law is that the holder of a draft will, in absence of evidence to contrary, be presumed to be a bona fide holder for value. Hall vs. First Natl. Bank, 133 111. 234. — Bonds: The fact that a person, for several years before his death, had the undisputed possession of a number of U. S. Government bonds, and collected and used the interest accruing thereon, affords presumptive evidence that he was the absolute owner thereof. But such evidence of ownership may be overcome by proof explaining the possession, and showing that he had but a life interest in the bonds, and held them under such title. Comer vs. Comer, 120 111. 420. — Mortgage: Possession of mortgage by mortgagee is prima facie evidence of ownership of notes secured. Mantonva vs. Martin Outfitting Co., 172 111. 92; Morris vs. Cal. Dock Co., 91 App. 437. — Certificate of Deposit: The possession of a certificate of deposit, duly indoreed, is presumptive evidence of ownership in the holder. Kavanaugh vs. Bank of America, 239 111. 404. — Certified Copy of Foreign Judgment: The possession of a certified copy of a foreign judgment affords no presumption that the holder is the owner thereof. Bell vs. Farwell, 189 111. 414. — Corporate Stock: The holder of a certificate of stock is pre- sumed to be the owner. Coffey vs. Coffey, 179 111. 283. As is also the person whose name appears upon the stock regis- ter, where his receipt is given for the same, Gillett vs. Chi. T. & T. Co., 230 111. 373. Admissibility of Evidence : — Names on Raitwag Cars and Engines: In proving ownership of engines in actions for personal injuries, it is competent to show the initials of the company. If an engine bears the initials of the company, the presumption is that it is owned and operated by that company. E. St. L. Ey. Co. vs. Altgen, 210 111. 213; Eyan vs. B. & O. 9. W. E. E. Co., 60 App. 612; P. Ft. W. & C. Ey. Go. vs. Callaghan, 50 App. 676. 904 OWNERSHIP But this is not eonelnsive. . Chi. General Ky. Co. vs. Capek, 68 App. 500. Ownership of trains may be proven by marks upon ears. Bacon vs. Peoria Ey. Co., 1(32 Ajip. 162. — Schedules and lusurance Policies: Schedules of property as used in a particular business in insurance policies covering such l)roperty admissible as tending to show that such property was owned by the vendor and intended to be included by him in a bill of sale. Current vs. Enright, 159 App. 260. — Enrollment of Vessel : A copy of the last enrollment of a vessel, duly certified by the collector of customs, is competent evi- dence to establish prima facie the ownership of such vessel. Where a prima facie case of ownership of a vessel is made, it at least shifts the burden of proof to show that such vessel was not under the control of the persons so established prima facie as owners. Vincent vs. Soper Lbr. Co., 113 App. 463; Merchants Nav. Co. vs. Amsden, 25 App. 307. Copies of the last enrollment of a vessel and of a bill of sale of same, duly certified by collector of customs, are competent evi- dence to show ownership of vessel. Merchants Nav. Co. vs. Amsden, 25 App. 307. — District Court Records: In action brought upon an account bought from a bankrupt's estate, the records of United States Dis- trict Court are competent to prove title. James vs. Couklin, 158 App. 640. — Inventory of Estate: The administrator's inventory of an estate is competent evidence tending to show what property the decedent owned at his death, and it is error to exclude such in- ventory when offered by defendant in suit by administrator upon a note, where it tends to corroborate evidence for defendant toiding to show that at time he gavel deceased the check, the latter held no note against defendant except the one in suit. Bailey vs. Eobiuson, 233 111. 614; Smythe vs. Evans, 209 111. 376. — Marks and Brands: Marks and brands, and letters, on stock and other property, have been held to be evidence of identity and of ownership of such property. Such evidence has a special force where the label, brand and mark is the actual label, brand or mark oT the owner, and placed or caused to be placed on the property 1)V the OMaier thereof and for his use. Independent Brew. Assn. vs. Cook Co., 169 App. 347; Foster vs. Wadsworth Co., 168 111. 514; P. Ft. W. & C. Ey. Co. vs. Callaghan, 157 111. 406. — Wills: Will is incompetent to prove ownership, in absence of proof of probate. Bacon vs. Peoria Ey. Co., 145 App. 502. — Chattel Mortgages: Proof that a person in possession of a piano executed a chattel mortgage thereon is admissible to show his title thereto. Downey vs. Arnold, 97 App. 91. An over-due chattel mortgage, made in a foreign state, is not admissible in suit in this state to determine the ownership of a OAVNERSHIP 905 fund derived from the sale of the mortgaged property by the mortgagor after the maturity of the mortgage, which fund was attached by the creditors of the mortgagor, in absence of any proof that under the laws of the foreign state, the mortgagee's lien was not lost by failure to take possession after maturity. Shannon vs. Wolf, 173 111. 253. — Direct Evidence: Witness may state ownership of personal property. Prima facie proof of ownership may be so made. Maginnis vs. Hartford Ins. Co., 160 App. 614. — Grantor's Declarations: The principle that the declarations and admissions of a former owner or possessor of property, against his interest, made during the continuance of his interest or posses- sion are evidence against those subsequently obtaining title or pos-' session from him, is applicable equally to personal property and to choses in action, as to real estate. First Natl. Bank vs. Strang, 138 111. 347; Wheeler vs. McCorris- ton, 24 111. 41; Kane vs. Corbit, 23 App. 311; Merrick vs. Hul- bert, 15 App. 606 ; XII 111. Notes 500, § § 199 et seq. The same rule applies where party is in possession as agent. Leiserowitz vs. Fogarty, 135 App. 609. But declarations of the vendor in reference to the ownership of the property, made after the sale, are not admissible in evidence to defeat the title of his vendee unless vendee is present at the time such declarations are made and either expressly or tacitly assents to their truth. Eendegger vs. Ehrhardt, 51 111. 101; Giillett vs. Otey, 19 App. 182; HoUey vs. Augestine, 2 App. 108, Weight and Sufficiency: — Citation- to Deliver to Administrator: Mere possession by a holder of personal property, received from his mother, is insuffi- cient to establish his ownership, and to entitle him to the property in his own right as against her heirs-at-law, where he does not claim under a sale, gift or loan, and there is evidence tending to prove that he acted as his mother's agent. Adams vs. Adams, 181 111. 210. — Replevin: Possession of chattels is always sufficient to hold them against another who is not shown to have an interest in them. Downey vs. Arnold, 97 App. 91. — Attachment: Possession of property by attachment defend- ant is prima facie evidence of ownership. Kickham vs. Kane, 135 App. 628. — In Actions for Negligence: That the engine which caused plaintiff's injury was not running upon defendant's track at the time, but upon a track used by several railroad companies, does not destroy, although it may weaken the presumption of ownership arising from the fact that the engine bore defendant's corporate name. It is for the jury to say what weight shall be given to the state- ments of witnesses as to matters whereof their knowledge is shown by cross examination to be based largely upon hearsay, where their evidence is allowed to go to the jury without objection and no motion is made to strike it out. E. St. L. C. Ey. Co. vs. Altgen, 210 111. 213. 906 PARDON In actions against a railway company to recover for an injury inflicted by a train of cars, alleged to have belonged to the com- pany, or operated by it, full and undoul)ted proof of the fact that the company owned the train, or was operating the same, is not required of plaintiff. In absence of positive proof on the subject by the company, it will be sufficient if plaintift"'s evidence is prima facie sufficient to show that fact. P. C. G. & St. L. Ry. Co. vs. Knutson, 69 111. 103. Proof that one of the defendants in a personal injury case was organized, under the name of "North American Restaurant and Oyster House, ' ' to keep a restaurant at a certain named place ; that its name appeared there over each entrance and headed the bills of fare ; that the words ' ' North American, ' ' and ' ' North Amer- ican Restaurant Company," appeared in different places on the premises, and that the injury occurred in the restaurant, tends to prove ownership of the restaurant by such defendant. N. A. Eestaurant vs. MeElligott, 227 111. 317. — Wagon : The presumption arising from the appearance of a name on a vehicle to the effect that it was property of the party whose name so appeared, may be rebutted by the positive testimony of the driver and his helper that they were employed by another party. United Brew. Co. vs. Bass, 121 App. 299. — Injunction: Complainant's ownership of the seams of coal which defendant is alleged to be wrongfully removing, is sufficiently proven, even though there is an inaccuracy of description in his deed to the coal underlying the land, where two recorded deeds are proved purporting to convey, by accurate descriptions, the entire fee to complainant's grantors, who are shown to have been in possession under such deeds. McGnire vs. Boyd Coal Co., 236 111. 69; Con., Coal Co. vs. Bruce, 150 111. 449. — To Enforce Statutory Liability of Stockholder: The appear- ance of names on the books of a corporation as stock-holders, is prima facie evidence that the persons whose names so appear are the owners of the stock. Sherwood vs. 111. T. & S. Bank, 195 111. 112; Gillett vs. Chi. Trust Co., 230 111. 373. PAIN AND SUFFERING See Mental and Physical States, Expert and Opinion, JuDicLVL Notice. PARDON Credibility of Witness: Conviction of a witness of a crime may be shown as affecting his credibility, but evidence that he was subsequently pardoned is im- material and properly denied admission. PARENT AND CHILD 907 "Formerly a person who had been convicted of any crime was incompetent to testify upon the trial of a criminal case, but that disability was removed by our statute, with the qualification that such conviction might be shown for the purpose of affecting his credibility. Under the statute, the guilt or innocence of the defend- ant of the crime for which he had been convicted, his punishment, his term, and etc., are wholly immaterial and incompetent. That he may have been pardoned proves nothing as to his credibility, and to permit evidence of that fact would simply be to introduce into the case a collateral issue." Gallagher vs. People, 211 111. 158; Contra O'Donnel vs. People, ■ 110 App. 250. PARENT AND CHILD See Infants, Work and Services, Deeds, Identity, Presump- tions, Burden of Proof, Gifts, Wills, Legitimacy, Domicile. CUSTODY. Presumption : A father's right to the custody of his child is superior to the right of any other person, and it will be presumed that he is en- titled to the custody of the child until proof to the contrary is made. Sullivan vs. People, 224 111. 468. The right of the parent to the custody of his children is superior to that of any other person, when the parent is a fit person to have the custody and is able to provide them with the necessaries of life, and administer to their requirements according to their best in- Hohenadel vs. Steele, 237 111. 229; Cormack vs. Marshall, 211 III. 519. Discretion of Court: The paramount right of the father to the children will not be recognized where a divorce has been granted for his fault or mis- conduct. His common law right must yield to the discretion of the court. Hewitt vs. Long, 76 111. 399; Draper vs. Draper, 68 111. 17; Miner vs. Miner, 11 111. 43. A decree respecting the custody of a child is exceptional in iicj character and is always temporary. Hohenadel vs. Steele, 237 111. 229; Cormack vs. Marshall, 11 HI. 519. Declarations of the child as to its wishes and preference may be heard but not necessarily allowed to prevail. Hewitt vs. Long, 76 111. 399 ; People vs. Porter, 23 App. 169. EMANCIPATION. May be Implied : Before a recovery could be had in the name of the infant, it is necessary for him to show by express arrangement or from such circumstances as that it might be inferred that the father had given the son his time so as to entitle him to receive his own earnings. Ford vs. McVey, 55 111. 119. 908 PARENT AND CHILD When May Be Presumed : AVliere father is t-alled as a witness on behalf of son suing for wages and makes no ehiini to the wages and speaks of the trans- action as his son's, the presumption is that he had emancipated his son at time the services were rendered and a recovery under these ^circumstances by the son would be a bar to any claim by the father for the son's- wages. Scott vs. White, 71 111. 287 ; Aulger vs. Badgley, 29 App. 33G. Marriage : Marriage emancipates, though not of age, and entitles child to his earnings. Y:iii;itta vs. Carr, 229 111. 47. Prosecution of Suit for Damages : Prosecution of a suit in the name of a minor by his father as next friend is equivalent to a relinquishment by the father of his right to claim the earnings of such minor. Chi. Screw Go. vs. Weiss, 203 111. 536. LIABILITY FOR TORTS. A parent cannot be held liable for the unauthorized torts of his minor children. Wilson vs. Garrard, 59 111. 51; Paulin vs. Houser, 63 111. 312; Mahleniberg vs. Bartos, 83 App. 481; Dick vs. Swenson, 137 App. 68. In order to render a parent liable for the tort of his infant son, it is essential that it should appear from the evidence that he might have reasonably anticipated injury as a conseciuence of per- mitting such son to employ the agency which produced the injury. Palm vs. Ivorson, 117 App. 535. An infant is liable for his torts the same as an adult. Hildreth vs. Hancock, 156 HI. 618; Wilson vs. Garrard, 59 111. 51; Davidson vs. Young, 38 111. 145. LIABILITY FOR NECESSARIES. In General: An express promise must be proven or circumstances from which a promise by the father can be inferred, to hold him liable for necessaries furnished his infant child by a third person. Sehuncble vs. Bierinan, 89 111. 454; Murphy vs. Ottenheimer, 84 111. 39; Gotts vs. Clark, 78 111. 229; McMullen vs. Lee, 78 111. 443; Dumser vs. UnderAvood, 68 App. 121; Allen vs. Jacob, 14 App. 278; XIII 111. Notes 1038, §§ 16 ei seq. Burden of Proof : Where a third person furnishes means for the support of the child, he must take the burden of showing that the parent expressly promised to pay for same, or such facts and circumstances bearing upon the question of the parent's neglect and his evident inten- tions and purposes regarding the necessities of the child and pro- vision therefor, as that a promise can properly be inferred there- from. Clark vs. Gotts, 1 App. 454. But where a father and mother separate by mutual consent, and the father permits the mother to take the children with her, then the father constitutes the mother his agent to provide for his children and is bound by her contracts for necessaries for them. McMillen vs. Lee, "78 111. 442. PARENT AND CHILD 909 Where a wife leaves the hiishand without his eonsent and against his wishes, without fault or misconduct of the husband, he will not be liable for necessaries furnished by a third person to the wife or child at her request. Selniuckle vs. Bierman, 89 111. 455. Liability of Step-Father : A person is not bound to maintain the children of his wife by a former husband. Altridge vs. Billings, 57 111. 490; Mowbrey vs. Mowbrey, 64 111. 383. But if a man take the children of his wife by a former mar- riage into his family, he stands in loco parentis as to them, and is bound by his wife's contract made for their maintenance and edu- cation. Chi. Man. T. S. Co. vs. Scott, 159 App. 350, A voluntary acceptance of the children imposes duties and obligations of a parent. Capek vs. Kropik, 129 111. 509. Where a minor son bought clothing without eonsent of father, who knew nothing of purchase until goods were brought home, but allowed the son to keep them, and plaintitf testified to father's promise to pay, which the latter denied, it was held that jury were authorized to find the father liable for the price of the goods. Jolmson vs. Smallwood, 88 III. 73. COMPENSATION FOR SERVICES. Presumption : "Where one remains with a parent or person standing in the relation of parent, after arriving at majority, and remains in same apparent relation as when a minor, the presumption is that the parties do not contemplate payment of wages for services. This presumj^tion may be overcome and reverse established by proof of an express or implied contract, and the implied contract may be proven by facts and circumstances wliieh sliow that both parties, at time services were performed, contemplated or intended pecun- iary recompense other than such as naturally arises out of rela- tion of parent and child." Switzer vs. Kee, 146 111. 577; Marshall vs. Coleman, 187 111. 556 Neish vs. Gannon, 198 111. 219; Freeman vs. Freeman, 65 111. 106 Smith vs. Birdsall, 106 App. 264; Miller vs. Miller, 16 111. 296 Sehwachtgen vs. Schwachtgen, 65 App. 127. Where near relatives, by blood or marriage, reside together as one common family, and one of them renders services to another, and such other furnishes him board and lodging, or other neces- saries, or comforts the presumption arises that neither party intended to receive or pay compensation for the services, on the one hand, or for the board and lodging or other necessaries or comforts, on the other ; but such presumption may be overthrown and the reverse established by an express or implied contract and the implied contract may be proven by facts and circumstances which shovv^ that both parties contemplated and intended pecuniary com- pensation. Keys vs. Estate of Thornton, 150 App. 523; Smith vs. Birdsall, 106 App. 264; Martin vs. Martin, 89 App. 147. 910 PARENT AND CHILD Contra as to Implied Contract: In Faloon vs. Melntyre, 118 111. 292, Court Says: "Unless it be shown that there is an express contract to pay for such support and services, a recovery therefor cannot be had by one of the parties against the other." Express Contract: xVn express contract may be proven by facts and circumstances which show that both the parties, at the time services were ren- dered, contemplated or intended pecuniary compensation, other than such as naturally arises out of family relation. Brooks vs. Ostrander, 158 App. 78; McClory^ vs. Lancaster, 44 App. 212. May be proved not only by an actual agreement, by express words used by the parties, but also by circumstantial evidence, Heffron vs. BrovFn, 155 111. 322. Implied Contract : May be proven by circumstances showing that the parties in- tended to contract and by the general course of dealing between them. The evidence must show that, when services were rendered, both parties expected them to be paid for. The facts and circum- stances must be such as to show that at the time services were rendered, the one expected to receive payment and the other to make payment. Heffron vs. Brown, 155 111. 322; Byers vs. Thompson, 66 111. 421; Truitt vs. Anderson, 12 App, 421. An implied contract may be proven by circumstances showing that the parties intended to contract, and the general course of dealing between them. Neish vs. Gannon, 198 111. 219; Sherman vs. Whiteside, 190 111. 576; Miller vs. Miller, 16 111. 296; Keyes vs. Thornton, 150 App. 523. Something more is meant by implied contract than a mere promise to pay, which the law implies where one person does work for another, with the knowledge and approbation of that other. This implied contract thus raised by law is rebutted where tliere is shown a relation between the parties as to exclude the inference that thev were dealing on the footing of a contract, Heffron vs. Brown, 155 111. 322, Mere declarations of gratitude are not proof of an agreement to pay for services. Loose expressions of an infirm parent, ex- pressions of gratitude for the personal services of a child, and of a desire that compensation should be rendered after his death, but not indicative of teimas of a contract are insufficient basis for submission to a jury from which to find whether such a contract in fact existed. Smith vs. Birdsall, 106 App. 264; Collar vs. Patterson, 137 HI. 403. VOLUNTARY CONVEYANCES FROM PARENT TO CHILD. Presumptions : — Fraud and TJndne Influence: There is no presumption of law, from the mere fact of relationship, that a conveyance from parent to child is the product of fraud or undue influence, and in PARENT AND CHILD 911 order to set aside the conveyance upon such grounds, there must be proof of fraud or undue influence in fact. Smith vs. Kopitzki, 254 111. 498; Fitzgerald vs. Allen, 240 111. 80; Hudson vs. Hudson, 237 111. 9; Sears vs. Vaughn, 230 111. 572; Oliphant vs. Liversidge, 142 111. 160; XIII 111. Notes 1041, §§40 et seq. — Consideration: The conveyance from a parent to child which is a gift or voluntary settlement will not be set aside because no money consideration was paid, natural love and affection being a sufficient consideration. Brock vs. Stines, 258 111. 346; Danville Seminary vs. Mott, 136 111. 289; Young vs. Young, 113 111. 430. — Delivery and Recordation: The presumption in favor of the delivery of a deed from a parent to child, in case of voluntary settlement is stronger than in ordinary cases of bargain and sale, and fact that such deed has been recorded is prima facie evidence of its delivery. Prince vs. Prince, 258 111. 304; Weigand vs. Rutsche, 253 111. 260: Valter vs. Blavka, 195 111. 610; Crabtree vs. Crabtree, 159 111. 342; XII 111. Notes 114, §177. The rule that a presumption of delivery in case of voluntary settlement will arise from slight circumstances indicative of an intention that the deed shall become effective from the present, cannot arise where the uncontradicted evidence shows that there was no delivery. Hawes vs. Hawes, 177 111. 409. The law presumes much more in favor of delivery of deeds especially when made to infants. The burden of proof is on the grantor to show clearly that there was no delivery. Thurston vs. Tubbs, 257 111. 465; Hill vs. Kreiger, 250 111. 408; Baker vs. Hall, 214 111. 364; Abbott vs. Abbott, 189 111. 488. The execution and recording of a voluntary settlement to a grantee who is a minor or under some disability raises a presump- tion of delivery, even though the grantor retains possession of the deed; but such presumption may be rebutted by proof that the grantor did not intend the deed to take effect immediately. Hill vs. Kreiger, 250 111. 408; Abrams vs. Beale, 224 111. 496. ■ The declaration of a father in his lifetime, that he had, at a previous period, acquired land in the name of his child, with the design of defeating creditors, cannot be considered as testimony to divest the interest of the child. Cochran vs. McDowell, 15 111 11. Or when brought in question by those claiming adversely to the donee or beneficiary, the burden is upon them to show clearly that there was no delivery. Chapin vs. Nott, 203 111. 341. The presumption of delivery of a deed from a parent to child, arising from its execution and recording, does not obtain in favor of adult children to the same extent as where the children are minors. Ackman vs. Potter, 239 111. 578; Willenou vs. Handlon, 207 111. 104. The presumption is never conclusive and the facts that the deed 912 PARENT AND CHILD was executed, acknowledged and recorded, do not, of themselves, prove delivery. Kirby vs. Kirby, 236 111. 255; Abrams vs. Beale, 224 Til. 496; Brown vs. Brown, 167 111. 631; Sullivan vs. Eddy, 154 111. 199; Weber vs. Christen, 121 111. 91. — Acceptance: Where the conveyance is a voluntary settlement, formal assent need not be shown, as it will, if nothing further appear, be presumed. Spencer vs. Eazor, 251 111. 278 ; Baker vs. Hall, 214 111. 364 ; Winter- bottom vs. Patteson, 152 111. 334; Masterson vs. Cheek, 23 111. 72; XII 111. Notes 114, § 182. Acceptance of a deed of voluntary conveyance, if its terms are beneficial to the grantee, will be presumed, even though the grantee had no knowledge of the existence of the deed until after grantor's death. Baker vs. Hall, 214 111. 364. No such presumption can arise in respect to a grantee who is not under legal disability, so long as he is ignorant of the con- veyance. Lancaster vs. Blaney, 140 111. 203; Moore vs. Flynn, 135 111. 74. When acceptance is not proven and the facts do not justify the presumption of law that the grantee has accepted, the title does not pass. Pratt vs. Griffin, 184 111. 514. The mere fact that grantor retains deed in his possession is not conclusive against validity, if there are no other circumstances besides the mere fact of his retaining it, to show it was not intended to be absolute. Kodemeir vs. Brown, 169 111. 347; Miller vs. Meers, 155 111. 284. Grantor may deliver deed to grantee or stranger for his use, and his acceptance will be presumed from the fact that the deed is for Ms benefit. Eivaird vs. Walker, 39 111. 414. VOLUNTARY CONVEYANCES CHILD TO PARENT. Presumptions : Where a parent obtains a deed for land from a child not strong mentally, without consideration, the presumption is the transaction was fraudulent and the deed will be set aside in a court of equity," unless it is clearly sho^vn to be a valid transaction. Hays vs. Feather, 244 111. 172; Lewis vs. McGrath, 191 111. 401; Sayles vs. Christie, 187 111. 420; White vs. Boss, 160 111. 56. The presumption that a deed from a child recently of age, to a parent was not voluntarily or understandingly made, is rebutted by proof that the grantor subsequently testifies, in two proceedings in court, that he conveyed the property to his father and received the consideration, not questioning the validity of the deed. Ferns vs. Chapman, 211 111. 597. Burden of Proof : And where a deed is procured by a parent from a child for the real estate of the child, without consideration, the burden is upon the parent to show that the transaction was fair and was entered into by the child fully understanding its rights and fully compre- PAROL 913 bending the transaction by which it parted with the title to its land, and that the transaction was for the benefit of the child. McLaughlin vs. McLancvhlin, 241 Til. 366; Ferns vs. Chapman, 211 111. 597; White vs. Ross, 160 111. 56. PAROL INTERPRETATION OF WRITINGS GENERALLY. In General : When writings show, npoii inspection, a complete legal obliga- tion, without any uncertainty or ambiguity as to the object or extent of the engagement, it is conclusively presumed that the whole engagement of the parties was included in the writings. The fact that a point has })een omitted which might have been embodied therein will not open the door to the admission of parol evidence in that regard. Gnibb vs. Milan, 249 111. 456; Schneider vs. Siilzer, 212 111. 87; TelUuide Power Co. vs. Crane Co., 208 111. 218; Eector vs. Hart- ford Deposit Co., 190 111. 380; Harding vs. Com. Loan Co., 84 111. 253; McKinney vs. Miilvaney Mfg. Co., 157 App. 339; Mes- ter vs. Quincy Natl. Bank, 163 App. 645; Petrea vs. Hediger, 173 App. 203; XII 111. Notes 519, §§351 et seq. The rule applies to instruments not under seal as well as to in- struments under seal. Ryan vs. Cook, 172 111. 302; Chambers vs. Prewitt, 172 111. 615. A written contract which purports to be a complete and final statement of the entire transaction is the only evidence of its terms and conditions. Osgood vs. Skinner, 211 111. 229; Wadhams vs. Swan, 109 111. 46; Hol- liday vs. Hnnt, 70 111. 109; Schreiber vs. Straus, 147 App. 581; Osgood vs. Poole, 165 App. 63. Where there is no misunderstanding between the parties about the terms of a contract, and no dispute lietween them as to the meaning of the same, parol evidence as to alleged ambiguities is properly refused. Finch & Co. vs. Furnace Co., 245 111. 586. If the language is plain and unambiguous proof aliunde can- not be heard to contradict or vary its terms or give it a meaning inconsistent witli the language used in the instrument. Chi. And. Assoc, vs. Fine Arts Bldg., 244 111. 532; Gale vs. U. S. Brg. Co., 181 App. 381. > \ Where there is no amliiguity in the terras used, or where the language used has a settled legal meaning, the instrument itself is the only criterion of the intention of the parties. Butterfield vs. Sawyer, 187 111. 598; Razor vs. Razor, 142 HI. 375; Schmuhl vs. Fiddiek, 34 App. 190; Somerville vs. Klien, 140 App. 39; Fowler vs. Black, 136 111. 363. It is only when there is some doubtful, ambiguous or equivocal phrase or expresion in the contract that a court may receive evi- dence aliunde the instrument, explaining the subject matter, the relations of parties, and inducing causes which led to making of the agreement, so that the court may be placed in the situation of Ev. — 58 914- PAROL the parties as nearly as possilile, and be the better enabled to interpret their language as they then understood it. Sanitary District vs. MoMahon, 110 App. 510. In eases of latent ambiguity, evidence is received, not for pur- pose of incci'porating into the writing an intention not expressed therein, but simply with view of elucidating the meaning of words employed. Bradish vs. Yoeiiin, 130 111. 380; nhaiiiliers vs. Prewitt, 71 App. 119. Contracts, if obscure, may be illumined by parol, and are to be construed with reference to the subject matter. Wolf vs. Willetts, 35 111. 88. Where the language of the instrument is sufficiently clear to enable the court to ascertain the intention of the parties, parol evidence is inadmissible to vary or explain its terms. Walton vs. Follansbee, 165 111. 480; Overby vs. Prudential Ins. Co., 181 App. 327. Extrinsic Rendering- Uncertain: AV^here a contract on its face seems to be explicit and certain, but is rendered uncertain by extrinsic evidence, then it may be explained by the same character of testimony by which the un- certainty was created. Harnian vs. People, 214 111. 454; Halliday vs. Hess, 147 111. 588: Marshall vs. Gridley, 46 111. 247 ; Doyle vs. Teas, 5 111. 202. Where it appears by extrinsic evidence that the words used in an insurance policy to designate the beneficiary fail to correctly describe any person related to or known by insured, further ex- trinsic evidence may be received to aid in determining who is the intended beneficiary. Hogan vs. Wallace, 166 111. 328. Patent Ambig-uity : Parol evidence cannot be admitted to explain or clear up an ambiguity on the face of the instrument itself. Eampke vs. Biiehler, 203 111. 384; Engelthaler vs. Engelthaler, 196 111. 230; Marshall vs. Gridley, 46 111. 247; Panton vs. Tefft, 22 111. 367. Conversations and Neg-otiations : Contract may be established by letters and correspondence. Scatt vs. ro\Yler, 227 111. 104. When parties have deliberately put their engagements into writ- ing, in such terms as import a legal obligation, without any un- certainty as to the object or extent of such engagement, it is con- clusively presumed that the whole engagement of the parties and the extent and manner of their undertaking was reduced to writ- ing; and all oral testimony of a previous colloquium between the parties, or of a conversation or declarations at the time when it was completed, or afterwards, as it would tend in many instances to substitute a new and different contract for the one which was really agreed upon, to the prejudice, possibly, of one of the parties, is rejected. Fuchs & Lang vs. Kittredge & Co., 242 111. 88 ; Ellis vs. Conrad Seipp Co., 207 111. 291; Tichenor vs. Ne^man^ igQ j]i_ 264; Hartford Ins. Co. vs. Webster, 69 111. 392; Woods vs. Price, 46 111. 439; Snyder vs. Griswold, 37 111. 216; Sexton vs. Berry, 102 App. 586; Wilson vs. Storm, 164 App. 13; XII 111. Notes 514, §319; 518, §345. PAROL 915 A written contract, if unambig:uous in its terms, cannot be varied, contradicted or modified by parol evidence of conversations relating to the subject matter of the contract, which occurred between the contracting parties before the execution of the con- tract. Nor can a sealed executory contract be altered, changed or modified by parol. Schneider vs. Sulzer, 212 111. 87; Town of Kane vs. Farrelly, 192 111. 512; Alschuler vs. Schiff, 164 111. 298. tO 30 So in an action on a written contract for the sale of a business, which contains a specific guaranty as to the value thereof, prior conversations between buyer and seller as to such value are not admissible. Tiehenor vs. Newman, 186 111. 264. And in action by plaintiff against defendant for price of castings delivered to latter under a contract made by him, evidence of a prior verbal contract for sale and delivery of castings is properly excluded, it appearing they were all furnished after the written contract. Hess & Co. vs. Dawson, 149 111. 138. Prior negotiations may be competent to identify subject matter of instrument. Panish vs. Vance, 110 App. 57. It is competent to resort to parol evidence to ascertain the nature and qualities of subject to which instrument refers. Wilson vs. Boots, 119 111. 379. Where the true meaning of the terms used is doubtful, evidence of what was said by the parties and all their acts that tend to shed light on the meaning of the words used is admissible whether such statements and acts are contemporaneous or subsequent to the con- tract. Chi. Portland Cement Co. vs. Hoffman, ICS App. 71; Gale vs. U. S. Brg. Co., 181 App. 381. Parol evidence is competent to show what was said and done before as well as after a lease was executed and delivered, in order to indicate what was intended to pass by the demise, and to identify the subject matter of the lease. Parrish vs. Vance, 110 App. 57. Where the issue was upon the point whether, in fact, there had been a purchase or payment of certain notes and mortgages, evidence of all the negotiations which finally culminated in transfer or sur- render of them was competent, as tending to show the character of the transactions and the understanding and intention of the parties when it was finally concluded. Balohrandsky vs. Carlisle, 14 App. 289. Where ambiguous part of contract has been construed by court, parol evidence of prior conversations is inadmissible in second suit, to vary contract. Town of Kane vs. Farrelly, 192 111. 521. Recitals Not Part of Contract : Parol evidence may be introduced which contradicts or varies recitals or statements of fact in a writing where they constitute no 916 PAROL part of the contract, and where the party is not, on other principles, estopped to deny such recitals. Ludeke vs. Sutherland, 87 111. 481. Date : Parol evidence is admissible to show date of a contract. Lambe vs. Mauiiing, 171 111. 612; Blake vs. Fash, 44 111. 302; School District vs. Stiliey, 36 App. 133; Horn vs. Booth, 22 App. 385. Existence of Written Contract : ,- Where the party offering evidence insists that the contract under consideration was not in writing, parol is prima facie admissible, subject to exclusion, if the opposite party is successful in proving that contract is in writing. Kehlor vs. Wilton, 99 App. 228. Different Writings : — In General: If an agreement is evidenced by more than one writing, all of them are to be read together and construed as one contract, and all writings executed at the same time and relating to the same subject matter are admissible. People vs. Economy Povrer Co., 241 111. 290; Gould vs. Magnolia Metal Co., 207 111. 172. — Construed Together: AVhere two written instruments are executed as the evidence of one transaction, they will be read and considered together as one instrument in arriving at intention of the parties. 111. Match Co. vs. C. E. I. & P. Hj. Co., 2.50 111. 396; Grindle vs. Grin- die, 240 111. 143; Freer vs. Lake, 115 Jll. 662; Gardt vs. Brown, 113 111. 475; Pruett vs. O 'Gara Coal Co., 165 App. 470; XI 111. Notes 989, § 189, et scq. And parol is admissible to identify instruments. Hamlin vs. Piser, 163 App. 51. Contract incomplete by reason of reference to other writings is inadmissible without such writing and evidence connecting them. Aluminum Co. vs. King, 92 App. 276. A contract and a lease as parts of the same transaction, and relating to the same subject matter, although written at different times, are to be construed together as one instrument. Crandall vs. Sorg, 198 111. 48. A lease and a contemx)oraneous agreement providing for abate- ment of rent in case the lessors should be prevented from delivering possession by the acts of third parties over which they had no con- trol, should be construed together in determining whether the lessors or lessee would be entitled to receive the double rental value of the premises in case the former lessees wilfully held over. Alexander vs. Loeb, 230 111. 454. Hrft i Where, at time bill of sale for personal property is executed and delivered, vendee executed and delivered to vendor, or his agent, a writing showing receipt of property and what vendee is to do in consideration of transfer, the two writings will be construed to- gether, as affording evidence of the transaction. Wood vs. Clark, 121 111. 359. Where notes and a written contract bear same date, and are exe- cuted at same time, they are but parts of one transaction. Denby vs. Graff, 10 App. 194. PAROL 917 Part in Writing : Where only part of a contract is reduced to writing and the part so reduced to writing is merely a partial execution of a part of an entire agreement, the whole agreement may be jiroven. Bradshaw vs. ComLs, 102 111. 428; Griffin vs. Griffin, 163 111. 216. The rule excluding parol evidence does not apply when the original contract was verbal and entire, and a part only is reduced to writing. Casner vs. Stafford, 86 App. 469. So a circular delivered to one party may be admissible as part of contract. W. U. Cold Storage Co. vs. Warner, 78 App. 577; W. U. Cold Stor- age Co. vs. pjmnierling, 73 App. 394. The execution of instruments in part performance of an oral contract does not prevent the introduction of oral evidence of the terms of the contract, Scott vs. Scott, 61 App. 103; Lacey vs. Gard, 60 App. 72. Unsigned Writing: A contract prepared by a party, though not executed by either, is entitled to great weight in showing what was the real contract between them. Purington vs. Ackburst, 74 111. 490; Ewing vs. Bailey, 36 App. 191. A contract executed by party to be l)Ound is admissible, notwith- standing a third party is named in the contract, who has not signed same. Breiliiig vs. Hybl, 167 App. 165 ; Thomas vs. Caldwell, 50 111. 138. Contemporary Agreements: The contract, having lieen reduced to writing, affords the only evidence of its terms and conditions, and cannot be varied by con- temporaneous verbal agreements of the parties. Eobison vs. Yetter, 238 111. 320; Weaver vs. Fries, 85 Til. 356; Whit- ney vs. Bnllock, 145 App. 269; Metzger vs. Highland Brew. Co., 151 App. 332. Delivered Instruments: While it may be shown that a deed or contract is not to be de- livered until a condition is to be performed, yet it cannot be shown by parol that actual delivery was made under an agreement that a condition should be performed, and that deed or contract should not be operative unless it was performed. In the one case, the purpose of the proof is to show want of a legal delivery, but in the other case, the effect of the proof is to contradict an instrument absolute on its face, by showing, contrary to its terms, that it it is not absolute, but only conditional, Eyan vs. Cook, 172 111. 302; Eyan vs. McArdle, 159 App. 579. Reservations : Parol proof to show what fixtures, on an estate at time of its conveyance, passed by the deed, is inadmissible. The deed must settle that question. McL.nnghliii vs. Johnson, 46 111. 163. So, on a written contract for sale of land, proof cannot be received of verbal reservation, of trees and shrubbery growing in a nursery, contemporaneous with written contract and impairing its legal effect. Smith vs. Price, 39 111. 20; Darnlcy vs. Fergnson, 48 App. 224. 918 PAROL Prior Contract: A written contract cannot be contradicted or varied by evidence of an oral agreement entered into between the parties before or at time of making such contract. Couvcrt vs. Bishop & Co., 152 App. 516; Wheaton vs. Bartlett, 105 App. 326; Cannon vs. Micli. Ins. Co., 103 App. 414; Walker vs. Crawford, 56 111. 444; Emery vs. Mohlcr, 69 III. 221. When a written contract is silent as to any proposed dedication of a street, proof of prior parol agreement to make same is inad- iiiissit)!^. Schneider vs. Sulzer, 212 111. 87. Intention: What the parties to a written contract may have understood as to the meaning of language used is not admissible in evidence. The intention or understanding of the parties, when there is a written contract in existence, must be determined, not from what the parties thought, but from the language of the contract itself. Noble vs. Fickes, 230 111. 594; Gage vs. Cameron, 212 111. 146; Duggan vs. Uppendahl, 197 111. 179; Packer vs. Koberts, 140 111. 90; Eigdon vs. Conlcy, 141 111. 565; Wetenkamp vs. Billigh, 27 App. 585; Todd vs. Mitchell, 67 App. 84. An agreement, when reduced to writing, must be presumed to speak the intentions of parties who signed it. It speaks for itself, and the intention with which it was executed must be determined from language used to express its intention. It is not to be changed by extrinsic evidence, as to how it was understood or what was intended. Emerich vs. Siegel Cooper & Co., 237 111. 610; State Bank vs. But- ler, 149 111. 575; Mer. Ins. Co. vs. Jaynes, 87 111. 199; McCor- mick vs. Huse, 66 111. 315; Gibbons vs. Bressler, 61 111. 110; Whit- ney vs. Bullock, 145 App. 269; Gardt vs. Brown, 113 111. 475. But parol is admissible to show intent and understanding of parties where particular words are, prior to making contract, agreed upon as having particular meaning. Evans vs. Eoss Cons. Co., 142 App. 375; Salt Pork Coal Co. vs. El- dridge Coal Co., 170 App. 268. Or where words used have a doubtful meaning. Gale vs. U. S. Brg. Co., 181 App. 381. As to Strangers: ,: Strangers to a written instrument, when their rights are con- cerned, are at liberty to show by parol evidence that the contract of the 'parties is different from what it purports to be on the face of the writing. Harts vs. Emory, 184 III. 560; German Ins. Co. vs. Gibe, 162 HI, 251; Washburn Co. vs. Wire Fence Co., i09 111. 71; Lane Co. vs. W. U. Tel. Co., 149 App. 562 ; Aleshire vs. Lee Co. Bank, 105 App. 32. The rule that a written agreement cannot be contradicted, en- larged or varied by parol proof does not apply to controversy be- tween one of the parties and a third person. Gore vs. Henrotin, 165 App. 222; Broughton vs. Mitchell, 147 App. 281; Salter vs. Hines Lbr. Co., 77 App. 97: C. P. & St. L. Ey. Co. vs. Beach, 29 App. 157. This rule applies to a release to a joint tort-feasor. Gore vs. Henrotin, 165 App. 222. PAROL 919 But one who claims under a contract cannot contradict it by parol. Northern Assn. Co. vs. Building Assn. 198 111. 474; Schnltz vs. Plankington Bank, 40 App. 4G2. Subsequent Agreements: — Ahrogatioii and Release: Parol evidence is admissible to show contracts under seal have been released, abrogated, cancelled and surrendered by an executed parol agreement, and the question whether a sealed contract is so abrogated is a question for the jury. Alseluiler vs. Schiff, 1(54 111. 298; Goldsliorongh vs. Gable, 140 111. 269; Robinson vs. Hardy, 22 App. 512; Bloomquist vs. Johnson, 107 App. 154; Milligen vs. Hinbaugh, 70 App. 537; Danforth vs. Melntyre, 11 App. 417. And such release may be deduced from circumstances or a course of conduct in evidence clearly evincing an abandonment. Lasher vs. Locffler, 190 111. 150; Harrison vs. Polar Star Lodge, IK) 111. 279; Holbrook vs. Elec. App. Co., 90 App. 86. A contract under seal may be released, abrogated, cancelled and surrendered by an executed parol agreement. Alschuler vs. Sehitf, 1(34 111. 298; Goldsborough vs. Gable, 140 111. 269; Pelouze vs. Gibbons, 157 App. 186; Gnnn vs. Tibbs, 134 App. 280. An executory sealed contract cannot be altered, modified or changed by a parol agreement, but may be surrendered and can- celled by an executed parol agreement. Breitman vs. Fischer, 216 111. 142; Starin vs. Kraft, 174 111. 120; White vs. Walker, 31 111. 422; Worrell vs. Forsythe, 141 111. 22; Baker vs. Pratt, 15 111. 568. So where a lease has been fully executed as modified by a parol agreement, evidence of the parol agreement is admissible. Snow vs. Griesheimer, 220 111. 106; Harmes vs. McCormick, 30 App. 125; Warder vs. Arnold, 75 App. 674. An executed parol agreement may be shown to defeat recovery under an instrument under seal. If a new parol agreement, even though it may be without consideration, has been executed, and one of the parties thereto has been led into a line of conduct which must be prejudicial to his interests, an equitable estoppel will arise in his favor. Worrell vs. Forsythe, 141 111. 22. But an executory contract under seal cannot be modified, varied, discharged or released by an unexecuted parol agreement. Leavitt vs. Stern, 159 111. 526; Pelonze vs. Gibbons, 157 App. 186; Heisen vs. Heisen, 145 111. 658; Loach vs. Farnum, 90 111. 368; Danchy Iron Works vs. Toles, 76 App. 669. The terms of a contract under seal cannot be varied except by an instrument of the same dignity, and this notwithstanding such contract would have been valid without a seal ; but the mere waiver of one of the terms or a condition of such contract, which waiver operates merely by way of release or discharge, but leaves the con- tract otherwise unchanged, may be shown by parol. Morehoiise vs. TerriU, 111 App. 460. — Waiver: An executory contract under seal cannot be modi- fied by parol so as to introduce any new element into the contract or add any new terms thereto, but a waiver of a covenant by the party for whose benefit it is inserted may be shown by parol to have 920 PAROL been made, and such waiver is not a modification or change in the terms of the original agreement. Becker vs" Becker, 250 III. 117; Pierce vs. Powers, ISO App. 687. A waiver need not be shown by an express agreement between the parties; it may be established by their acts and eondnct with respect thereto. It may be inferred from facts and circumstances sufficiently indicating an intention to waive, and a new consider- ation is not essential. Globe Brew. Co. vs. Amer. Malt Co., 152 App. 194; Stowe vs. Ens- sell, 36 111. 18; Frost vs. Thompson, 18 App. 410. Any party has a right to waive a strict compliance with the terms of a contract, and proof of such waiver may consist of acts in pais. Kissack vs. Bonrke, 224 111. 352; Vroman vs. Darrow, 40 111. 171; Morehouse vp. Terrell, 111 App. 460; C. & E. I. E. E. Co. vs. Morau, 85 App. 543. — Rescission: Of contract may be implied from circumstances. Natl. Ins. Co. vs. Met. Ins. Co., 226 111. 102. Evidence of a subsequent contract raises a conclusive presumption of rescission of former contract so far as the two are inconsistent. Stowe vs. Eus-ell, 36 111. IS; Farrar vs. Tolliver, 88 111. 408; Gray vs. B. & N. Ey. Co., 120 App. 159. But the contract must appear to have been rescinded i)i toto. Balicock vs. Farwcll, 245 111. 14; Bollnow vs. Novacek, 184 111. 463; Kelloog vs. Turpee, 93 111. 265. And when shown to have been abrogated, parol is admissible to show transaction and relation of parties. Loeber vs. Horn, 167 App. 311. Separate Parol Agreement: A separate parol agreement as to any matter not inconsistent with the terms or legal effect of the written agreement, and on which it is silent, may be shown, where it appears the written instrument was not intended to be a complete and final statement of the whole trans- action between the parties. Mnrphy vs. Schnell, 248 111. 182; Fnchs vs. Kittredge, 242 111. 88; Todd vs. Todd, 159 111. 408; Halliday vs. Mulligan, 113 App. 177; Saffer vs. Lambert, 111 App. 410; Penn. Amer. Plate Glass Co. vs. Hawes, 170 App. 224; XII 111. Notes 519, § 350. To the rule, however, there are exceptions. One is where the apparent omission is supplied by implication of law. In such case the implication cannot be disputed or overcome by attempting to show a parol, prior or contemporaneous agreement that a condition should exist at variance with the implication. Union Sewing Mach. Co. vs. Lockwood, 110 App. 387; Drivier vs. Ford, 90 111. 595. A waiver of the right to rebuild, made by parol, may be shown, notwithstanding a subsequent written submission to arbitrators, its admission not being a violation of the rule that parol evidence will not be received to vary the terms of a wTiting. Piatt vs. Aetna Ins. Co., 1.53 111. 113. Where a written contract for sale and delivery of railroad ties provides that same shall be inspected before payment, and that they shall be loaded on company's cars at certain place, but is silent as to where inspection shall be made, it may be shown that it was the PAROL 921 understanding of the parties that the ties were to be shipped and inspected where unloaded. H. K. & E. K. K. Co. vs. Walsh, 85 111. 58. Contract Not Intended Binding: Parol evidence is competent to show that an instrument was never intended to become operative. The rule that parol evidence of contemporaneous agreement is not admissible to contradict or vary terms of a valid written agreement is not infringed by the introduction of parol evidence which shows that the "instrument never had a legal existence or binding force." Eobinson vs. Nessell, 8G App. 212; VauNorman vs. Young, 129 App. 542. So a contract, mutual in form but signed by only one party, is inadmissible. Waggjeman vs. Brackman, 52 III. 468. Fraud and Deceit: — lib General: Misrepresentations made to induce execution of contract may be proven by parol evidence, notwithstanding the terms of the contract may be reduced to writing. In such a case, the action is not upon the contract, but upon the representations and deceit. Fraud is not extinguished by the covenants. Gnibb vs. Milan. 249 111. 456; Grand Tower E. E. Co. vs. Walton, 150 111. 428; Antle vs. Sexton, 137 111. 410; A'anBiiskirk vs. Day, 32 111. 260; Supreme Council vs. Beggs, 110 App. 139. — ■Circumstantial Evidence: Proof of fraud may be made by facts and circumstances which raise the inference that it was per- petrated. Swift vs. Yanawav, 153 111. 197; Bear vs. Bear, 145 111. 21; Strauss vs. Kramert, 56*^111. 254; Eeed vs. Noxon, 48 111. 323. So circulars submitted to vendee by vendor are admissible to show fraud. Hicks vs. Stevens, 121 111. 186. — As to Scaled Instruments: In action at law, a written instru- ment under seal cannot be impeached for fraud not inhering in the execution thereof, but which only goes to the extent of the con- sideration. Papke vs. Hammond, 192 111. 631; Windette vs. Hurlbut, 115 111. 403; Fowler Cycle Co. vs. Fraser, 110 App. 126. But this rule does not include a release not under seal. Jackson vs. Security Ins. Co., 233 111. 161; F. & M. L. Ins. Co. vs. Caine, 224 111. 599; Titsworth vs. Hyde, 54 111. 386. Consideration : — In General: Where suit is brought upon a simple contract, resort may be had to parol evidence for purpose of impeaching consideration. Eobinson vs. Yetter, 238 111. 320; F. M. Ins. Co. vs. Caine, 224 111. 599; Wolfe vs. Fletemeyer, 83 111. 418; Logue vs. Flannery, 148 App. 471. And to establish consideration where none is recited in instru- ment. Martin vs. Stubbings, 27 App. 121. In suit upon a written contract for payment of money on a certain condition expressed, when consideration is put in issue and denied, antecedent propositions in reference to contract, as well as 922 PAROL the circumstances at the time it was entered into, may be shown to ascertain what was the real consideration of the contract. Grier vs. Puterbaugh, 108 111. 602. — Sealed Instruments: A seal imports consideration and a court of law may not receive parol evidence and investigate the question whether there were fradulent representations touching merely the nature or value of the consideration, but leaves the party to a court of equity, where the consideration may be impeached for fraud. The remedy there is by a direct proceeding to set aside the instrument, and parol evidence is there competent. Eobiusou vs. Yetter, 238 111. 320; Corbett vs. Cronkhite, 239 111. 9. Where such a contract recites an adequate consideration, the burden of proof is upon party seeking to avoid it to impeach such recital by a clear preponderance of evidence. McFarlane vs. Williams, 107 111. 33. The statements as to amount and receipt of consideration in a deed, are formal recitals, the legal operation of which is to pre- vent a resulting trust, and may be explained, varied or contra- dicted by parol evidence, Lloyd vs. Sandusky, 203 111. 621. Delivery : While parol evidence is not admissible to vary the terms of a written instrument, yet such evidence is always competent to show that by reason of the circumstances under which the instrument was executed, it did not take effect. Bellville Savings Bank vs. Bornman, 124 111. 200; Biederman vs. O 'Conner, 117 111. 493; Hartley vs. Gilhofer, 109 App. 527; Demes- ney vs. Gravelin, 50 111. 93; Weaver vs. Snow, 60 App. 624; Mich. Life Ins. Co. vs. Beaver, 26 App. 350. Where a grantor executes a deed and delivers it to a third per- son to be delivered to a grantee upon some future event, it is not the grantee's deed until the second delivery. Fitch vs. Miller, 200 111. 170. So parol is admissible to show chattel mortgage was delivered conditionally. VanNorman vs. Young, 228 111. 425. But where a contract ready for delivery is handed to obligee with intention of passing the title, there is a valid delivery and parol evidence is not admissible to show contract was not to be operative until performance of some condition. Eyan vs. Cook, 172 111. 302; Eyan vs. McArdle, 159 App. 579. And possession of a written agreement by a party thereto, after its execution by the other party, raises presumption of delivery which can only be overcome by clear and satisfactory proof. Dunlop vs. Lamb, 182 111. 319. It cannot be shown by parol that bond was delivered to principal on condition that another sign as co-surety before delivery to obligee, if fact was unknown to such obligee. Comstock vs. Gage, 91 111. 328; Smith vs. Peoria Co., 59 111. 412. Usury : Parol testimony is admissible to establish fact that a contract is usurious. Kidder vs. VanDershoot, 114 111. 133; Brand vs. Henderson, 107 111. 141; Hewitt vs. Dement, 57 111. 500; McGuire vs. Campbell, 58 App. 188. PAROL 923 The form of contract is not conclusive on question of usury, and resort to extrinsic evidence may be had without regard to whether there is any ambiguity in the contract, for the reason that the charge of usury raises question of illegality of transaction, to the extent that usury, under the statute, renders contracts illegal and void. Clemens vs. Crane, 234 111. 215; Keeve vs. Strawn, 14 111. 94. Same rule applies in adjustment of claims in probate. Cheney vs. Eoodhouse, 135 111. 257 ; Henry vs. Caruthers, 196 111. 136. So it is competent, by party seeking to enforce contract, to show by parol that agreement was result of accident or mistake. Lurton vs. Jacksonville Loan Assn. 187 111. 141; WoUschlager vs. McEldowney, 96 App. 34. Illegal Agreements: A contract, sealed or not sealed, though on its face honest and lawful, may be, nevertheless, shown to be illegal and contrary to public morals. Eyan vs. Potwin, 60 App. 637; Henderson vs. Palmer, 71 111. 579. And may be so established by proof of facts and circumstances showing coincidences which can be accounted for upon no other assumption than that such an original understanding existed. Estate of Eamsey vs. Whitbeek, 183 111. 550. It is competent to go behind the language of a writing and show that the real purpose of its execution is to delay and defraud creditors, in violation of the Statute of Frauds, and this in behalf of the party ostensibly bound by the instrument, and to defeat suit for its enforcement. Tyler vs. Tyler, 126 111. 525; Elwood vs. Walter, 103 App. 219. Whether required by statute of frauds to be in writing or not. McLennan vs. Johnston, 60 111. 306. Mistake : — At Law: A contract cannot be part in writing and part in parol. If there has been some agreement omitted by mistake from the written contract, the only remedy is to secure a reformation of the instrument, and such reformation cannot be secured in action at law. Schwass vs. Hershey, 125 111. 653; Over vs. Walzer, 103 App. 104; Hartford Insurance Co. vs. Webster, 69 111. 392. — Admissions: And the mistake may be shown by admissions of party in whose favor it is made. Purvines vs. Harrison, 151 111. 219. — Mutual: Mistake must be of fact and not of law, and must be mutual. Gray vs. Merchants Ins. Co., 113 App. 537; Oswald vs. Sproehnle, 16 App. 368. — Settlements: When a settlement is relied upon, parol evi- dence is admissible to prove that some item was omitted either by fraud, accident or mistake, even though the settlement be evidenced by written agreement (e. g. promissory note.) Kuch vs. Fnlfs, 68 App. 134. Cancellation of Instruments: The rule that parol evidence is inadmissible to vary the terms 924 PAROL of a written instrunieut has uo application in a suit to cancel same. G. T. & C. G. II. Co. vs. Walton, 150 111. 428; Wilson vs. Haeclser, 85 111. 349; .McLcunan vs. Johustou, (JO 111. 306. Parol evidence of the circumstances connected with a transaction and the declared intention of the parties in executing a written instrument is admissible for purpose of showing fraud, accident or mistake. Race vs. Weston, 86 111. 91. Custom and Usage: — //( (fcniral: Evidence of a usage may be admissible to add to or explain the terms of a written contract, but not to vary or con- tradict such terms, either expressly or by implication. Turner vs. Osgood C'olortype Co., 223 111. 629; West Un. C. S. Co. vs. Froiliu-e Co., 197 111. 457; Leavitt vs. Kennicott, 157 111. 235; Gilbert vs. McGinnis, 114 111. 28; Abendpost vs. Hertel, 67 App. 501; Steidtman vs. Lay Co., 234 111. 84. But such usage or custom, however extensive it may be, can not be noticed by courts unless established by proof, Morris vs. Jamieson, 205 111. 87. — ■ Local Usage : Where a particular word or phrase has a par- ticular or technical meaning in a particular neighborhood, at a par- ticuhir period, and that word or phrase is used in an instrument made at that time or place, it is competent to show that meaning bv parol. Broadwell vs. Broadwcll, 6 111. 599. The meaning of the word "product" in a contract of bailment for manufacturers may be proven orally as having a local meaning. Stewart vs. Smith, 28 111. 397. It is competent for a witness to testify as to the meaning of a term used in his trade, professioji or occupation. Garrity vs. Catholic Order, 148 App. 189; Dixon vs. Dunham, 14 111. 324. So, in determining the meaning of a covenant in a contract where- by one railroad company agrees to furnish "necessary signals and switchmen" at its crossing over the other's track, the court may permit expert witnesses to testify as to what would be the character of the signals necessary at that point and the duties of "switchmen" relating thereto. L. & N. Ey. Co. vs. I. C. E. Co., 174 111. 448. Character of Transaction: — Execution of Listrument: One may write and execute an in- strument by the hand of another, when done in his presence and by his direction, and the fact may be proven by parol evidence, and an action may be brought upon the instrument wdthout violat- ing the Statute of Frauds. Morton vs. Murray, 176 111. 54. — Partnership: The extent of each partner's interest in part- nership real estate held as partnership stock in trade for profit, may be shown by parol, whether the title is in one of the partners or in all. Van Housen vs. Copeland, ISO 111. 74. Parol evidence that a purchase of land was made by a firm rather than by its members as individuals, and that the notes PAROL 925 given therefor were for partnership debts, does not vary or con- tradict the terms of such, notes where they do not appear on their face not to be a finn obligation, otherwise than by the fact that they were signed by the members individually and not in the firm name. Drefuss vs. Union Natl. Bank, 164 111. 83. — Purpose of Execution: The purpose for which a writing was executed may be shown, and where the evidence is conflicting, is a question of fact for jury. I. C. E. K. Co. vs. Byrne, 205 111. 9. Construction by Parties: Where a contract is silent, doubtful or ambiguous, it is proper to show the interpretation put upon it by the parties themselves. Con. Coal Co. vs. Schneider, 163 III. 393; Eogers Co. vs. Jones, 145 App. 469; First Natl. Bank vs. Eotbschild^ 107 App. 133; Davis vs. Sexton, 35 App. 407; Eoniono O. S. Co. vs. M. U. B. I. Co., 173 App. 534; XI 111. Notes 988, §187. The acts and conduct of the parties indicating the construction placed by them on their written agreement may be considered in determining the true meaning of the contract, but vague, general conversations between the parties in regard to what they meant by it do not amount to "acts and conduct." Ingraham vs. Mariner, 194 111. 269. While the interpretation by the parties to a contract, as evidenced by their acts, will in cases of doubt, be resorted to for purpose of arriving at their true intention, this rule is never allowed to govern when the effect will be to overthrow the plain terms of the contract. West Ey. Co. vs. Mo. Mall. Iron Co., 91 App. 28. In action for breach of contract to deliver coal, which defendant ascribes to its inability to obtain cars, proof that defendant took upon itself the burden of furnishing cars, the contract being silent upon that point, and that it never asked the purchaser to furnish cars or offered to make deliveries if he would do so, is competent, as showing a construction of the contract by the parties. Con. Coal Co. vs. Jones, 232 111. 326. One suing for the price of ten thousand pictures, who is met with the defense that only five thousand were ordered, may prove, as bearing upon the contract, that as soon as the order for pictures was received, he contracted for ten thousand frames for such pic- tures, to be delivered to the purchaser. Wrigley vs. Cornelius, 162 111. 92. By performing the acts required by one instrument, the party whose name appears thereto will be regarded as recognizing its validity, and he will be estopped from denying its execution. Boggs vs. Alcott, 40 111. 304. Surrounding- Circumstances: — In General: Parol evidence is admissible to show the pur- poses and circumstances under which a written contract was entered into by the parties, but never to vaiy, alter or contradict its terms. Seymour vs. Bowles, 172 111. 521; Gardt vs. Brown, 113 111. 475. While it is true that parol evidence cannot be introduced to contradict or vary the terms of a valid written instrument, yet such evidence is admissible for the purpose of explaining written instruments by showing the situation of the parties in their rela- 926 PAROL tions to persons and things around them, or as is sometimes said, by proof of the surrounding circumstances. In such cases, oral evidence may be resorted to for the purpose of showing the cir- cumstances surrounding the parties at the time the instrument was executed, so that the court may view the instrument from the stand- point of the parties who executed it and be thereby the better en- abled to determine the sense in which the words used were intended to be understood. The circumstances wdiich both the parties had in view at the time of making the contract may be referred to for the purpose of determining the meaning of doubtful expressions. Gage vs. Cameron, 212 111. 146; Mann vs. Bergmann, 203 111. 406; Hartshorn vs. Byrne, 147 111. 418; Woods vs. Clark, 121 111. 359; Black vs. W. St. L. & P. Ey. Co., Ill 111. 351; Turpine vs. B. O. & C. E. E. Co., 105 111. 11; Gale vs. U. S. Brg. Co., 181 App. 381; XII 111. Notes 520, §356. This rule applies to ante-nuptial contracts. Collins vs. Phillips, 259 111. 405. — ■Trusts: Whether a purchase in the name of a wife or child is an advancement or not is a ciuestion of pure intention, though presumed, in the tirst instance, to be a provision and settlement; therefore any antecedent or contemporaneous acts or facts may be received, either to rebut or support the presumption, and any acts or facts so immediately after the purchase as to be fairly considered a part of the transaction, may be received for the same purpose. Pool vs. Phillips, 167 HI. 432. So parol evidence may be received to explain and complete the trust, if it is imperfectly expressed in the writing. Kingsbury vs. Burnside, 58 111. 310. If the writing makes clear the existence of a trust, the terms may be supplied by parol. Fox vs. Pox, 250 111. 384; Cagney vs. O'Brien, 83 111. 72; Pool vs. Phillips, 167 111. 432. — Conduct of Indorser: Parol evidence is no more admissible to vary or contradict the contract of the indorser of a promissory note, arising by operation of law from an indorsement in blank by the payee, than any other written contract. Such evidence is proper to establish a trust, or to show the circumstances under which the indorsement was made, as whether in a transaction negotiating the note, or otherwise, or to prove fraud in obtaining the signature, but not for the purpose of showing that the parties intended a different contract from that implied by the law from their acts. Johnson vs. Glover, 121 111. 283. — Subsequent Conduct: When written instruments are sub- mitted, the tenor of which is not certain and which are susceptible of variant meanings, it is admissible to show by oral testimony the circumstances under which the writings were made, as well as the subsequent conduct of the parties thereunder, and the inference to be drawn from such situation, and such conduct is ordinarily a question of fact to be determined by a jury. First Natl. Bank vs. Eotbschild, 107 App. 133. Words and Terms: — In General: If it is not certain from the face of a contract in what sense terms were used by the parties, parol evidence is PAROL 927 admissible to enable the court to determine in what sense such terms were understood by them. Irwin vs. Powell, 1S8 111. 107; Salt Fork Coal Co. vs. Eldredge Coal Co., 170 App. 268. An oral understanding is inadmissible to vary terms of written contract. ...>,. Pruett vs. O'Gara Coal Co., 165 App. 470. Expert evidence should not be received as to the meaning of a condition in a contract,' to understand which no previous study or habit is necessary. Lord vs. Owen, 35 App. 382. It is wholly unnecessary to call a workman in marble to prove the legal meaning of a contract "to erect a monument," or what would be understood by such a contract in the trade, because there could be no dispute as to its meaning. The law would attach to this language a precise signification. Sanford vs. Eawliugs, 43 111. 92. — Merchants and Dealers: Parol evidence is admissible to show that certain words and phrases used in a trade contract have a well known and established meaning among the merchants and dealers engaged in the class of trade which is the subject matter of the contract. Steidtman vs. Lay Co., 234 111. 84. — Local Term: Where a particular word or phrase has a par- ticular or technical meaning in a particular neigh])orhood. or at a particular period, and that word or phrase is use'd in an instrument made at that place or time, it is competent to show that meaning by parol. Broadwell vs. Broadwell, 6 111. 599; Barrett vs. Stowe, 15 111. 423; Ball vs. Benjamin, 56 111. 105; Packard vs. Van Schouek, 58 111. 79; Stewart vs. Smith, 28 111. 397; L. N. R. Co. vs. I. C. E. E. Co., 174 111. 448. — Incomplete Terms: Where the agreement in writing is ex- pressed in short and incomplete terms, parol evidence is admissible to explain that which is per se unintelligible, such explanation not being inconsistent with the written terms. Craig vs. Chi. Coach Co., 172 App. 564; Stone vs. Mnlvane, 217 111. 40; Eazor vs. Eazor, 142 111. 375; XII 111. Notes 520, § 361.^ — Presumptions: Where local terms and phrases are used in a contract, the presumption is that the parties employed them accord- ing to their local significance. Meyers vs. Walker, 24 111. 134. — Ahbreviations: Parol competent to show meaning of abbrevi- ations used in land descriptions. McChesney vs. City of Chicago, 173 111. 75. In suit against express company, abbreviations in a receipt may be explained by parol. Amer. Express Co. vs. Lesem, 39 111. 313. If a word has a well defined significance, it is not competent to change that meaning by evidence ; but if a word has not a definite and ascertained signification, its local meaning may be proven. Galena Ins. Co. vs. Kupfer, 28 111. 332; Moore vs. Morris, 28 111. 255. 928 PAROL The term "current funds" has a specific legal and well known meaning that camiot be contradicted or explained. Marc vs. Kupfer, 34 III. 28G. As has the word "dollars" in an ordinary check upon a bank. Howes vs. Austin, 35 111. 396. Identity of Subject Matter: — In General: A written contract must speak for itself as to terms, conditions and limitations of the agreement, but as to the parties and subject matter, extrinsic evidence is always competent, if necessary for their identification, without reference to question of latent or patent ambiguity. Hedrick vs. Donovan, 248 111. 479; Cumberledge vs. Brooks, 235 111. 249 J Wilson vs. Roots, 119 111. 379. Extrinsic is always competent to identify the subject matter of a contract, and this in no way violates the rule that parol testimony is never admissible to vary or contradict the terms of a written contract Marske vs. Willard, 1C9 111. 276; Bulkley vs. Devine, 127 111. 406; Ball vs. Benjamin, 73 111. 39. Parol evidence is admissible to identify subject matter of con- tract for sale of real estate, even where statute of frauds is pleaded. Hedrick vs. Donovan, 248 111. 479. But not unless contract describes the land to be conveyed with sufficient certainty to enable it to be located. Wetmore vs. Watson, 253 111. 88; Fowler vs. Fowler, 204 111. 82; Glos vs. Wilson 198 111. 44. Parol evidence cannot be considered to vary or contradict a mort- gage, but it is competent to identify the subject matter thereof referred to in general terms, or to show the situation, condition and mutual relations of parties, to make clear the meaning of the lan- guage, which would otherwise be uncertain. Chambers vs. Petit, 172 111. 615. So identity of mortgagee assumed may be shown by parol. Webster vs. Fleming, 178 111. 140; Brosseau vs. Lorry, 209 111. 405. — To Apply Description: Parol evidence may be resorted to for the purpose of identifying the premises and applying the calls of the deed and contracts in suits for rectification and specific per- formance, and in other actions and proceedings affecting title. Hedrick vs. Donovan, 248 111. 479; Evans vs. Gerry, 174 111. 595; Halliday vs. Hess, 147 111. 588. So where chattels are sold by particular description, parol evi- dence is competent to prove identity. Morris vs. Wibaux, 159 111. 627. — Bounelaries: "Whenever the boundary line between adjoining owners of land is unascertained or in dispute, they may establish by a parol agreement and possession in pursuance of the agreement, and a line so established will be binding on the parties and their privies. Roberts vs. Birk, 223 111. 291; Duggan vs. Uppendahl, 197 111. 179; Lamont vs. Dickinson, 189 111. 628; Clayton vs. Feig, 179 111. 534; Sheets vs. Sweeny, 136 HI. 336; XI 111. Notes 658, § 21. The effect of the agreement is not to pass title to real estate from one party to another, which cannot be done by parol, but to fix the location of an unascertained or disputed boundary, and if the loca- PAROL 929 tion of the true boundary is known to the owners, they cannot trans- fer the land from one to another by agreement changing its location. So, also, if the intention of the parties is merely to ascertain the true line, and in doing so an erroneous line is agreed upon by acci- dent or mistake, the agreement will not be binding and the line will not be established merely because of the agreement. Sounemau vs. Mertz, 221 111. 3(52. The rule as to establishing a disputed or unascertained boundary between lands of adjoining owners by parol agreement and pos- session in accordance therewith does not apply to a parol promise by a grantor to his gi^antee to re -plat the tract, and change the boundary of the lots, where the question arises between such grantee and a party subsequently purchasing an adjoining lot according to the unchanged plat. Grubb vs. Boon, 201 111. 98. — Monuments: Where land is described by reference to natural or artificial monuments, the monuments may be identified by ex- trinsic evidence. Village of Itasca vs. Schroeder, 182 111. 192; Kleiner vs. Bowen, 166 111. 537; Stevens vs. Wait, 112 111. 5-44; Colcord vs. Alexan- der, 67 111. 581. Condition of Subject Matter: Parol is competent to show. Walker vs. Johnson, 116 App. 145. Identity of Persons: Extrinsic evidence of every material fact which will enable the court to ascertain the nature and qualities of the subject matter of the instrument, or in other words, to identify the persons and things to which the instrument refers, must necessarily be received. Cumberledge vs. Brooks, 235 111. 249; Eiebling vs. Tracy, 17 App. 158; Graves vs. Colwell, 90 111. 612; Missionary Soc. vs. Cald- well, 69 App. 280. Where a corporation is misnamed in a contract of guaranty, proof is admissible to show corporation intended to be indemnified by the contract. Mall Iron Eange Co vs. Pusey, 244 111. 184. Capacity in Which Persons Act: — Negotiahle Instruments: Where there is an ambiguity on the face of an instrument, which pui'ports to be executed in some rep- resentative capacity, rendering it doubtful whether the person signing means to bind himself or only bind the corporation or body of \^'hich he is the authorized agent, parol evidence is admissible as between the parties, to prove extrinsic circumstances by which the respective liability of the principal or agent may be determined, especially in cases where the intention to bind the one or the other was known to the person accepting the instrument at the time of accepting it. McNeil vs. Shober Litho. Co., 144 111. 238; Scanlan vs. Keith, 102 111. 634; Decowski vs. Grabarski, 181 App. 279; Teed vs. Par- sons, 100 App. 342; Thompson vs. Hasselman, 131 App. 257; LaSalle vs. Toln Co., 14 App. 141; Williams vs. Miami Povrder Co., 36 App. 107; Contra, Harris vs. Coleman Co., 98 App. 27; Eev., Williams vs. Harris, 198 111. 501; Hypes vs. Griffin, 89 111. 134. Ev.— 5 9 930 PAROL Resort may be had to extrinsic evidence to show whether in- strument is an individual or corporate act. Zion Church vs. Mensch, 178 111. 2125. — Oilier Contracts: Resort may be had to the language of the instrument and to extrinsic evidence and facts to sliow whose in- strument it was. Wabash Ey. Co. vs. People, 202 111. 9. Where it is doubtful whether the contract is to bind the principal or agent, extrinsic evidence may be received to ascertain who was intended to be bound as principal. Keely Brg. Co. vs. Decorating Co., 194 III. 580; Braun vs. Hess, & Co., 187 111. 283. But not if the contract clearly binds the agent. Vail vs. N. W. M. Life Ins. Co., 192 111. 567; O. & M. Co. vs. Mid- dlctou, 20 111. 629. INTERPRETATION OF PARTICULAR WRITINGS. Advancements : Under Statute of Descent, no material part of proof necessary to establish an advancement can be supplied by jjarol. Elliott vs. Western Coal Co., 243 111. 614. Architect's Certificate: Any evidence to contradict such eertificate without offering to show fraud or mistake is inadmissible. Concord Apart. House Co. vs. O'Brien, 228 111. 3G0; Lohr Bot tling Works vs. Ferguson, 223 111. 88; Barbee vs. Findley, 221 111. 251. Arbitration and Award: The scope and effect of an award must be determined from the language of the submission, and the award cannot be enlarged by parol. Pinkstaff vs. Steffy, 216 111. 406. When the written award itself is in pursuance of the submission, it cannot be enlarged by parol evidence as to show the arbitrators took into consideration and settled matters not submitted to them. Such evidence might be admissible in a direct attack to set aside the award or in answer to a suit ])rought upon the award in support of a plea denying the validity of the award. Glatle vs. Schmidt, 20 App. 157. Assessors' Schedules: Where an inspection of the schedules for certain years, and of the items listed in them, tends to show that a certain item was intended to be listed as credit, testimony of the assessors who made Ihe assessments in such years, that such items consisted of notes, mortgages and securities, is competent as being in explan- ation of such schedules. Warner vs. Campbell, 238 111. 630. Assignment : — Xcgotiahle Instrument: Actual date of assignment may be shown by parol. Smith vs. Nevlin, 89 111. 193; Bussey vs. Hemp, 48 Aop. 195. — Judgment: The terms of the assignment are to be determined by the recitals in it rather than from any testimony showing them to be otherwise. Aetna Iron Co. vs. Owen, 62 App. 603. PAROL 931 — Corporaie Stock : Parol not admissible to vary legal effect or terms, but in action for conversion, admissions of agent so eon- verting are admissible to show his liability for value. McDonald vs. Danahy, 196 111. 133. Bills of Sale: — Consideration: Recital of consideration may be explained and contradicted by parol evidence which show^s that the money has not in fact been paid. But such evidence cannot affect the legal import of the instrument. Kimball vs. Walker, 30 111. 482; O'Brien vs. Palmer, 49 111. 72. — Property Sold: Parol evidence is inadmissible to contradict the instrument. McClosky vs. MeCormick, 37 111. 66, Or extend to articles not embraced therein. O'Eeer vs. Strong, 13 111. 688; Wolford vs. Eusk, 145 App. 40.^. In absence of ambiguity, parol is inadmissible to show that other property not answering the description in bill of sale was included or intended to be included. Eockwell vs. Martens Co., 145 App. 403. — Warranty : Not expressed in bill of sale, cannot be established by parol evidence. Vierling vs. Iroquois Furnace Co., 170 111. 189. Nor can warranty of title contained in bill of sale be avoided by proof of declarations of vendor to vendee before sale. Koerper vs. Jung, 33 App. 144. — As Mortgage: It is competent, no matter what the terms of a bill of sale are, to show by parol evidence that the actual trans- action was in legal effect a mortgage of chattels. Moore vs. Foster, 97 App. 233; Upham vs. Eichey, 61 App. 650; Natl. Ins. Co. vs. Webster, 83 App. 470. Bill of Lading: A bill of lading, in so far as it is a receipt of goods, may be explained or contradicted by parol evidence. L. S. & M. S. Ey. Co. vs. Live Stock Bank, 178 111. 506; I. C. E. E. Co. vs. Cobb, 72 111. 148; Bissell vs. Price, 16 111. 408; Wallace vs. Long, 8 App. 504. When goods are shipped under a parol contract covering future shipments, bills of lading given by carrier are only evidence of dates and amounts of shij)ments made under the pre-existing con- tract. Baker vs. Ey. Co., 42 111. 73; St. L. S. Ey. Co. vs. Elgin Milk Co., 74 App. 619. So a carrier may defend suit for non-delivery by showing it received no goods from plaintiff. L. S. & M. S. Ey. Co. vs. Live Stock Bank, 178 111. 506. And may contradict statements in bills of lading as to condition in which goods are received. I. C. E. E. Co. vs. Cobb, 72 111. 148. Bonds : Acceptance may be shown by parol. Estate of Bamsey vs. People, 107 111. 572; Bartlett vs. Board of Education, 59 111. 364; School Directors vs. Kimmell, 31 App. 537. Subject matter of bond may be identified by parol evidence. Chi. Pressed Steel Co. vs. Clark, 87 App. 658. 932 PAROL Conditions upon which delivery was made cannot he shown by parol evidence. Oonistock vs. Gage, 91 111. 328. Building Contracts: Where a building or construction contract does not express the complete contract of the parties, parol evidence is admissible to show the entire agreement. Donliu vs. Daegling, 80 111. 608. _ . An experienced builder and contractor may testify as to the accepted meaning among builders, of technical words used in a con- tract for erecting a building, but it is not permissible to prove by such witnesses the proper construction of the entire contract. Clark vs. Shirk, 170 111. 143. Certificate of Deposit: It is proper for a party to a certificate of deposit payable to the depositor, according to an indorsement upon the certificate, on its return, properly endorsed, to shoAv by parol what the contract re- ferred to in the memorandum in fact was, and also what was the contract between the depositor and the holder of the certificate as to the conditions upon which the money represented by the certi- ficate was payable. Trimble vs. First Natl. Bank, 101 App. 75. Certificate of Publication: Defects may be aided by parol. Barnett vs. Wolfe, 70 111. 76; Euo vs. Chicago, 66 111. 256. Certificate of Sale: And sheriff's deed may be shown by parol to be intended as mortgage. Trogden vs. Trogden, 164 111. 144. Certificate of Teacher: Cannot be impeached by parol. School District vs. -Sterricker, 86 111. 595. Certificate of Taxes: Parol is competent to show that amount paid on tax certificate has been repaid. Walker vs. Glos, 245 111. 253. Chattel Mortgage: Identiiy of Property: Parol evidence is admissible to identify the chattels included in a chattel mortgage. The description of the property will be sufficient if it is «o particular that it can be identi- fied as that described in the mortgage, and answers the general description. Pike vs. Colvin, 67 HI. 227; Bell vs. Prewitt, 62 111. 361; Hart ford Ins. Co. vs. Hadden, 28 111. 260; Mattingly vs. Darwin, 23 111. 618. — Conditional Delivery: Parol proof is admissible to show that a chattel mortgage was delivered to the mortgagee upon the under- standing that it was intended to protect the mortgagor against his local creditors, and as collateral security in case be desired to borrow money from the mortgagee's bank, and that the mortgage was not to be enforced against the mortgagor, who was to have the right to sell the property if he desired. Van Norman vs. Young, 228 111. 425. PAROL 933 Compromise and Settlement: — Insfrument Undo- Seal: In a composition agreement with creditors, if the deed contains an absolute release of all debts and liabilities for a consideration then paid by the debtor, the creditor cannot be allowed to show by parol evidence in opposition to the terms of the deed that a particular debt was not intended to be and was not included within its provisions. Meyer & Co. vs. McKee & Co., 19 App. 109. — Promissory Note: When settlement is relied upon, parol evi- dence is admissible to prove some item was omitted either by fraud, accident or mistake, even though the settlement be evidenced by a written agreement. Kuck vs. Fulfs, 68 App. 134. — Check: A receipt contained in a check which, on its face, is a payment in full of all demands to date, enclosed in a letter stat- ing that it is in full of account, and followed by a subsequent let- ter to return it if the creditor does not wish to accept it in full settlement, cannot be contradicted by showing the amount was re- ceived in part payment only, where account is unliquidated and subject to bona fide dispute. Ostrander vs. Scott, 161 lU. 339; Worth Coal Co, vs. Parker Co., 157 App. 199; Coey vs. Coey, 150 App. 296; Critchell vs. Loftus, 100 App. 196; Eumsey vs. Barber, 78 App. 88; Mexi- can Soap Co. vs. Clark, 72 App. 655; XI 111. Notes 18, §4. Contracts Generally: — Of Sale ': In suit for specific performance, complainant may testify he underetood defendant was to pay taxes, for purpose of showing offer to perform contract as complainant understood it. Carrier vs. Hooper, 247 111. 502. Parol is competent to show perfonnance. Plumb vs. Campbell, 129 111. 101. — Variance: The rule that a written contract cannot be varied by parol applies only as between parties or those in privity with them. Lane & Co. vs. W. U. Tel. Co., 149 App. 562. — Of Guaranty: Parol is inadmissible to show that contract was conditional instead of absolute. Bradley vs. Brown, 146 App. 297; Contra, Bates vs. Worthing- ton, 163 App. 75. — Of Carriage: It is admissible to prove by parol evidence, out- side of the mere ticket sold, the terms of the contract entered into between the carrier and the passenger. C. & A. E. E. Co. vs. Dimser, 161 111. 190. — For Payment of Money: Parol is admissible to show mistake. McFarlane vs. Williams, 107 111. 33. — Mistake: Parol admissible to establish fact of mistake on bill to reform contract. Ewing vs. S. C. & M. Co., 110 111. 290. — Terms Of: Each party may testify as to his theory of, where dispute arises as to terms of oral contract. Hough vs. Cook, 69 111. 581; Iglehart vs. Jernegan, 16 111. 513; Webster vs. Enfield, 10 111. 298. — Alteration: Parol is admissible to prove contract where one party fraudulently alters same in a material part. Kelly vs. Trumble, 74 111. 428. 934 PAROL — Dale: Parol is admissible to show. Lamb vs. Manning, 171 111. 612; Blake vs. Tash, 44 111. 302; School District vs. Stilley, 36 App. 133. Deeds: — As Mortgage: Parol evidence may be admitted to show that an absolute deed, whatever may be its covenants, was intended as a mortgage or security. Caraway vs. Sly, 222 111. 203; Rankin vs. Rankin, 216 111. 132; Gannon vs. Mole, 209 111. 180; Heaton vs. Gaines, 198 111. 479; Knowles vs. Knowles, 86 111. 1; Purvain vs. Holt, 8 111. 395; Gray vs. Hayhurst, 157 App. 488; XIII 111. Notes 602, § 33. And may be shown by admissions and declarations of grantee. Eiicknian vs. Allwood, 71 111. 155. The rule that a deed, absolute in form, may be shown by parol evidence to have been intended merely as a security applies in actions at law Avhere the title is not directly in issue. German Ins. Co, vs. Gibe, 162 111. 251. But cannot be shown in defense to action in ejectment. Ladd vs. Ladd, 252 111. 43. Deed intended as a mortgage may be rendered an absolute con- veyance by parol. Hutchinson vs. Page, 246 111. 71. — Terms: Where there is no ambiguity in the language of the deed, which has a settled legal meaning, it cannot be changed, ex- plained or added to by oral evidence. Morton vs. Babb, 251 lU. 488. (See Ambiguity.) — As Trust: A resulting trust may be established by parol, and for this purpose, . declarations of one holding h'gal title, that another person's money paid for the land, are competent. Springer vs. Kroeschall, 161 111. 358. Where a grantee in a deed, absolute in form, declares on his answer to a bill in chancery, that he holds the land under an express trust not evidenced by writing, but that he is unable to recall its precise terms and conditions, such terms and conditions may be proven by parol. Myers vs. Myers, 167 111. 52. — Consideration: The statements in a deed of the amount and receipt of the consideration are formal recitals, the legal opera- tion of which is to prevent a resulting trust, and they may be explained, varied or contradicted by parol evidence. Brossau vs. Lowy, 209 111. 405; Lloyd vs. Sandusky, 203 111. 621; Stericher vs. McBride, 157 111. 70; Worrell vs. Forsythe, 141 111. 22; Booth vs. Hynes, 54 111. 363; Rook vs. Rook, 111 App. 398; Van Sickle vs. Harmeyer, 172 App. 218. But is not admissible to vary or add to the terms of a deed containing a covenant. : Barry vs. C. I. & St. L. Ey. Co., 156 App. 9. — Invalidating Deed: Acknowledgment of payment of con- sideration in deed cannot be contradicted for purpose of wholly invalidating deed or impairing its legal eif ect as a conveyance. Abernathie vs. Rich, 256 111. 166; Gillespie vs. Fulton Od Co., 236 111. 188; Poe vs. Ulrey, 233 111. 56; Standard vs. A. E & C. Ey. Co., 220 111. 469; Windett vs. Hurlbut, 115 111. 403; I. 0. Ins. Co., vs. Wolf, 37 111. 355. e ■^ a But parol is competent to show consideration has failed. Russell vs. Robbins, 247 111. 510. PAROL 935 — Sustaining Deed: Where no consideration is expressed in a deed of bargain and sale, extrinsic evidence is admissible to show the consideration. Eedmond vs. Cass, 226 111. 120. Parol is admissible to show that incumbrance formed part of consideration. Brosseau vs. Lowy, 209 111. 405. Also to show identity of incumbrance. Webster vs. Fleming, 178 111. 140. — Description: If the description in the deed is uncertain, parol evidence of any extrinsic circumstances is admissible to identify and establish the objects of the call in the deed. Koelliiig vs. People, 196 111. 353; Kleiner vs. Bowen, 166 111. 537; Mason vs. Merrill, 129 111. 503; Taylor vs. Wright, 121 111. 455; Stevens vs. Wait, 112 111. 544; Colcord vs. Alexander, 67 111. 5S1: XII 111. Notes 520, § 3.59. Where latent ambiguity in the description in a deed is made manifest by other evidence, parol is admissible to make an identi- fication of the land alienated by such deed. Parol evidence is always admissible to explain a latent ambigiiity and to show what property was intended. Bradish vs. Yocum, 130 111. 386. But if no uncertainty or ambiguity exists, parol evidence of the acts and conversations of grantor and grantee, prior to execu- tion of deed, cannot be received to show description in deed is wrong. Duggan vs. Uppendahl, 197 111. 179. — Parties: Identity of grantor and grantee may be shown by parol, Fyffe vs. Fyflfe, 106 111. 646; Graves vs. Colwell, 90 111. 612; Brown vs. Metz, 33 111. 339. — Interest: Where there are two grantees, parol competent to show interest. Kuepper vs. Mette, 239 111. 586. — Reservation : Or exception cannot be shown by parol in con- tradiction of terms of the deed. McLaughlin vs. Johnson, 46 111. 163; Smith vs. Price, 39 111. 29; Damery vs. Fergiisou, 48 App. 224. So a provision of a trust deed for a release of part of the prem- ises upon certain payments cannot be varied by parol evidence that the lots to be released were to be sold to l>ona fide purchasers. Lane vs. Allen, 162 111. 426. — Date: Parol evidence is admissible to contradict the date of a deed as not the date of its delivery. Eedmon vs. Cass, 226 111. 120; Blake vs. Fash, 44 111. 302. — Acceptance: Where a clause in a deed for land is binding upon the grantee, by his acceptance and enjoyment under the deed as a contract, in absence of fraud or mistake, the deed cannot be explained or contradicted by parol evidence, but must speak for itself. Kershaw vs. Kershaw, 102 111. 307. While oral testimony is inadmissible to add to or vary or change the terms of a deed, it may be admitted to show the condition of 936 PAROL the property with a view to arrive at the true intent of parties in terms used by them. Cook vs. Whiting, 16 111. 480. Where the language of a deed is indefinite or obscure, oral testi- mony is admissible to show the circumstances surrounding the parties, to enable the court to read the deed in the light in which it was written, but not to contradict or vary the language used. Seymore vs. Bowles, 172 111. 521. — Delivery: The question of delivery may be determined by parol evidence, though the deed be recorded. Ward vs. Couklin, 232 111. 553; Abranis vs. Beale, 224 111. 496; Konser vs. Konser, 219 111. 466. While it is not competent to control the effect of a deed by parol evidence when it has taken effect and been delivered, it is com- petent to show that the deed, although in grantee's hands, has never, in fact, been delivered. Potter vs. Barringer, 236 111. 224. As that it was delivered in escrow. Demesney vs. Gravelin, 56 111. 93. Conditions upon which deed is placed in escrow may be proved by parol. Osby vs. Reynolds, 260 111. 576. — Recording: Parol evidence is competent as to time of fil- ing. Harpham vs. Little, 59 111. 509; Nattinger vs. Ware, 41 111. 245; Eeed vs. Kemp, 16 111. 445; Cook vs. Hall, 6 111. 575. — Bill to Correct 31istake: Parol proof may be received to show mistake in a deed. Stanley vs. Marshall, 207 111. 20. And the mistake may be sh-own by the admissions of the party in whose favor it has been made. Purvines vs. Harrison, 151 111. 219. — Right to Redeem: Parol competent to show right to re- deem. Conant vs. Eiseborough, 139 111. 383; Burton vs. Perry, 146 Til. 71. Declaration of Trust: Parol admissible to show whose name should have been inserted in blank as to name of cestui que trust. Fast vs. McPherson, 98 111. 496. Diagrams : Of proposed improvement may be explained by parol. Hyde Park Conirs. vs. Andrews, 87 111. 229. Emplojrment Contract: — In General: After parties reduce to writing their agreement, as finally determined upon, all prior negotiations leading up to the execution of the writing are merged therein, and parol evi- dence is not admissible to explain, modify or enlarge its terms. Davis, vs. Fidelity Ins. Co., 208 111. 375. But if part is omitted, the writing not purporting to be the whole agreement, parol evidence is competent to supply portion omitted. ■:-^Tie vs. Taylor, 34 App. 491; Garfield vs. Douglas, 22 111. 100; Zimnierniann vs. Zinmiermann, 15 111. 85. But not as against third persons. Eivard vs. Gardiner, 39 111. 125. Nor if officer deceased. Wilson vs. Greathouse, 2 111. 174. Rules : — Employer's Rules: Permitting counsel to read a rule of defendant company, which in itself is competent, instead of offer- ing the printed rule, is not error unless specifically objected to. C. & A. E. E. Co. vs. Logue, 158 111. 621; St. L. &*A. T. H. By. Co. vs. Bauer, 156 111. 106. Nor can complaint be made of permitting rule to be sho\\Ti by parol, where proven without objection upon cross examination of complaining party's own witness. Peterson vs. E. & A. S. Ey. Co., 142 App. 34. — Of Court: The record in which the rules of court are en- tered is the only competent evidence to prove their existence. Printed rules and testimony that they were adopted by the judges, is incompetent. Eoby vs. Title Guaranty Co., 166 111. 336. -Filing of a certified copy of a general order for opening of depositions does not bring such order before Appellate Court; that can only be done by bill of exceptions. Sturtevant Co. vs. Sullivan, 69 App. 47. Rules of court must be proven by the record, and their non- existence by the testimony of the clerk of the court. The affidavit of counsel to the effect that there was no general rule or order of court for opening of depositions does not establish non-existence of such rule or order. Hughes vs. Humphrey, 102 App. 194. Sales Contracts: — In General: Parol evidence is inadmissible to vary the con- tract. All prior negotiations and conversations are presumed merged in the contract. Tichenor vs. Newman, 186 111. 264; Osgood vs. Skinner, 111 App. 606; Schneider vs. Turner, 130 111. 28. A party cannot accept a part, only, of a written proposition, for a contract, and at the same time rely upon a portion of the antecedent verbal offers; and if such party acts under a written proposal, and avails himself of all the rights and privileges it con- fers, this will show an acceptance. Pickerl vs. Eose, 87 111. 263. A contract cannot be part in writing and part in parol. If there has been some agreement omitted from the written contract by mistake, the only remedy is to secure a reformation of the in- Ev. — 6 946 PAR(3L strumeiit, and such reformation cannot be secured in an action at law. Over vs. Walzer, 103 App. 104. A written contract which purports to be a complete and final statement of the entire transaction is the only evidence of its terms and conditions. Osgood vs. Skinner, 211 111. 229; Hill vs. Hatfield, 72 App. 534. The rule is, that when the writings show, upon an inspection, a complete legal obligation, without any uncertainty or ambiguity as to the object or extent of the engagement, it is conclusively presumed that the whole agreement of the parties was included in the writings. Telluride Power Co. vs. Crane Co., 208 111. 218. But parol is admissible to show misdescription of property. McCormack vs. Sage, 87 111. 484. Where an unambiguous written contract to convey lands is silent as to any proposed dedication of abutting land for street, proof of a prior parol agreement to make such dedication is inad- missible. Sehneiter vs. Siilzer, 212 111. 87. Where, so far as appears from a written contract for the ex- change of a stock of goods for a farm, the deliveries of the pos- session by the respective parties were to be concurrent, such con- tract cannot be varied by proof of a parol agreement, made at same time the written contract was signed, that immediate pos- session of the stock of goods should be given, Robinson vs Yetter, 238 111 320. — licservaiion: Where a written contract provides for sale of a lumber company's output of a certain described stock ex- cept such portions of said stock as such company might need to supply its yard in a certain town, there being nothing definite in the contract as to the probable quantity or character of stock so reserved, testimony as to what was said at the time the contract was signed, as to the probable quantity and character of the lumber which would be required at such yard does not vary the terms of the written contract and is admissible. Chi. Trust Co. vs. Lumber Co., 242 111. 468. — Fact of Sale: Fact of sale may be proven by letters. Elevator S. D, Co. vs. Brown Iron Works, 153 App. '313. So "bought and sold notes," executed in regular course of busi- ness, are competent evidence to establish contract. Murray vs. Doud, 107 111. 368; Eau Claire Co. vs. Western Brok. Co., 213 111. 561. — Condition of Goods: It is admissible, in suit for price of perishable commodity, alleged to have been spoiled, to prove that like commodity, made at same time, was in good condition after sale, as tending to show that those sold were also good. Luetgert vs. Volker, 153 111. 385. Where, in action for damages for a refusal to order, receive and pay for goods, it appears that the buyer had not repudiated the contract for defect in quality, evidence is inadmissible to show defect in goods received and disposed of. Kingman & Co. vs. Hanna Wagon Co., 176 111. 545. PAROL 947 Wliere article is sold under contract, proof that same was of average quality is incompetent. Bracewell vs. Self, 109 App. 140. — Quantity: Where, in action for pictures sold, there is a question as to the number, the seller may prove that upon receipt of the order he contracted for so many frames, to be delivered to the buyer. Wrigley vs. Cornelius, 162 111. 92. — Agent's Signature: AA^'here evidence clearly identifies a bill of lading as the one issued for goods in question, and assigned to party to suit, it is not essential to prove signature of transporta- tion company's agent issuing bill, or that person signing it was agent. Sanitary Can Co. vs. Hines, 149 App. 244. — Conversation of Parties: Where a sale of goods is by deliv- ery on a written order, evidence is admissible to show subsequent conversation fixing a detail of the contract as to which writing is silent. Story vs. Carter, 27 App. 287. Settlement : When amounts and calculations concerning same have been shown to third person, such amounts and calculations may be proven by such person. Weaver vs. Crocker, 49 111. 461. Statutes : Statute of foreign state cannot be proven by parol. Hoes vs. VauAlstyne, 20 111. 202 ; MeDeed vs. McDeed, 67 111. 545. But . construction given such statutes in tribunals where they are in force, may be given in evidence by witnesses learned in such law. Hoes vs. VanAlstyne, 20 111. 202; McDeed vs. McDeed, 67 111. 545; Canale vs. People, 177 111. 219. Subpoena : The contents of a subpoenae and the date when it is returnable cannot be proved orally when the witness has the subpoenae in his possession, but does not produce it. People vs. Venard, 168 App. 254. Subscriptions : — Stock Subscription: Parol evidence is incompetent to show that stock subscriptions, on their face unconditional, were, in fact, conditional. Corwith vs. Culver, 69 111. 502; Merrick vs. Consumers Heat Co., Ill App. 153. Nor to show contemporaneous secret agreement between sub- scriber and corporation. Stone vs. Vandalia Coal Co., 59 App. 536; Lyon vs. Taylor, 49 App. 639. Parol evidence is admissible to show that written agreement was to take effect on conditions. Such proof is not admitted for purpose of changing terras, but for pui-pose of determining whether contract has legal existence. G. W. Tel. Co. vs. Lowenthal, 154 111. 261; O. O. & F. E. E. Co. vs. Hall, 1 App. 612. — Booh Suhscription: Evidence offered to show that the book was not prepared in accordance with certain representations of 948 PAROL person who took the subscription, is inadmissible as being an at- tempt to vary terms of a written instrument by parol. Williams vs. Gottschalk, 231 111. 175. — Church Subscription: An unconditional subscription for the erection of a church cannot be varied by parol proof of a rep- resentation that the building would be erected upon a certain site. Howell vs. Trustees, 61 App. 121. Summons : When service is by summons, parol is inadmissible to aid, but not so with publication. Barnett vs. Wolf, 70 111. 76; Trevor vs. Colgate, 181 111. 129. Trusts : It is not necessary, in order that a writing shall be deemed suffi- cient to manifest a trust, that it shall have been framed for the purpose of acknowledging the trust. It is sufficient if the recog- nition or admission of it is even incidentally made in writing as in the course of a correspondence, or in a receipt or a memorandum, provided the object and nature of the trust appear with sufficient certainty from such document. Parol is admissible as to terms thereof. Mosher vs. Funk, 194 111. 351; Kellogg vs. Peddicord, 181 111. 22; Moore vs. Pickett, 62 111. 158; Whetsler vs. Sprague, 224 111. 461; Union Mut. Ins. Co. vs. Campbell, 95 111. 267; Kingsberry vs. Burn- sides, 58 111. 310. (See Trusts.) Voluntary Settlement : Parol evidence is admissible to show condition of property, to ascertain intention of parties in using certain terms. Cook vs. Whiting, 16 111. 480; Seymore vs. Bowles, 172 111. 521. Warranty : — In General: Where there is a written contract containing no warranty, parol evidence is inadmissible to show a separate oral warranty. Fuchs vs. Kittredge, 242 111. 88; Eobinson vs. McNeill, 51 111. 225; McMillan vs. DeTamble, 93 App. 65; Banning vs. Caldwell, 43 App. 175; International Filter Co. vs. Crystal Ice Co., 157 App. 96; Chi„ Port. Cement Co. vs. Hofman, 168 App. 71. But if writing is a mere memorandum, and does not purport to be complete, such warranty may be shown. Ruff vs. Jarrett, 94 111. 475. — Fraud: Although a contract for the sale of land may be evidenced in writing, in suit to cancel same for fraud consisting of false representations made to induce the trade, the rule that parol evidence is inadmissible to contradict, vary or add to the writings, does not apply. G. T. & C. G. R. R. Co. vs. Walton, 150 111. 428; Wilson vs. Haecker, 85 111. 349. So in such proceedings, the false representations made by the vendor are admissible, not to vary the contract but to show fraud. Hicks vs. Stevens, 121 111. 186. Wills: — In General: While extrinsic evidence is not admissible to import into a will an intention not expressed in it, it is competent to show the fact or circumstance referred to by the testator, when PAROL 949 necessary to identify the subject of disposition or object of the testator's bounty. In construing a will, the court should always endeavor to read its expressions in the sense in which they have been employed by the testator, and for this purpose, may consider it in the light of the facts and circumstances surrounding the testator at the time the will was made. Wallace vs. Foxwell, 250 111. 616; Wallace vs. Noland, 246 III. 535; Gaiio vs. Gano, 239 111. 539; Perry vs. Bowea, 151 111, 25: XIV 111. Notes 1060, §§257 et seq. Court may use parol testimony to put itself in testator's place, but not to frame a new will. Masou vs. Ely, 38 111. 138; Smith vs. Dennison, 112 111. 367. — Identity of Beneficiary: Where extrinsic evidence is offered which raises a latent ambiguity in the language of the will, parol evidence is competent, including declarations of the testator, to ascertain his intention. Decker vs. Decker, 121 111. 341 ; Bradley vs. Eees, 113 111. 327. But declarations cannot be received as to intention of testator as regarding disinheriting unborn child. Peet vs. Peet, 229 111. 341; Lurie vs. Eadnitzer, 166 111. 309; Hawhe vs. C. & W. I. E. E. Co., 165 111. 561. To aid the context of the instrument by extrinsic proof of the circumstances and situation of the testator, when will was executed, is constantly permitted at the court's discretion, and this con- stitutes a proper, — indeed, often an indispensable, — matter of inquiry when construing a will, for whatever a will may set forth on its face, its application is to persons and things external, and hence is admitted evidence, outside the instrument, of facts and circumstances which have any tendency to give effect and opera- tion to the terms of the will, such as the names, descriptions and designation of beneficiaries named in the will; the relation they occupy to the testator ; whether the testator was married or single, and who were his family ; what was the state of his property when he made his will and when he died, and other like collateral cir- cumstances. Such evidence, being explanatory and incidental, is admitted, not for the purpose of introducing new words of a new intention into the will, Init so as to give an intelligent construc- tion to the words actually used, consistent with the real state of the testator's family, and property, — in short, so as to enable the court to stand in the testator's place, and read the will in the light of those surroundings under which it was written and exe- cuted. Peet vs. Peet, 229 111. 341. For the purpose of determining the object of a testator's bounty, a court may inquire into every material fact relating to the per- son who claims to be interested under a will, in order to identify the person intended by the testator as a legatee. Parol evidei^ce is admissible of any extrinsic circumstances tending to show what person or persons or things were intended by the party or to ascertain his meaning in any other respect. A nickname may be shown as may also a name gained by reputa- tion. Coon vs. McNelly, 254 111. 39. 950 PAROL — Identity of Subject Matter: Extrinsic evidence cannot be heard to alter, detract from or add anything to the provisions of a will. But in case of a latent ambiguity parol evidence is admis- sible for purpose of identifying the property intended to be de- vised. Bowen vs. Allen, 113 111. 53. "While words may not be added to a will or inserted in lieu of other words stricken therefrom, yet if in a will there is a mis- description of the subject matter of the devise, and if, after strik- ing out that portion of the description which is false, enough of the description remains, when read in the light of the circum- stances surrounding the testator at the time the will was executed, to identify the property he intended to convey, the remaining portion of the description may be so read and the testator's pur- pose given effect. Lawrence vs. Lawrence, 255 111. 365; Collins vs. Capps, 235 111. 560; Felkel vs. O'Brien, 231 111. 329; Douglas vs. Bollinger, 228 111. 23; Huffman vs. Young, 170 111. 290. But the court has no power to reform a will or correct a mis- take therein by inserting or changing words, and if, after the rejection of the words, there is not sufficient description to iden- tify the property, the devise will not be given effect. No new term can be incorporated into the will. Parol is not admissible to show mistake in description, where description given is sufficient to identify other lands. Collins vs. Capps, 235 111. 560; Lomax vs. Lomax, 218 111. 629; Vestal vs. Garrett, 197 111. 398; Bingel vs. Voltz, 142 111. 214; Kurtz vs. Hibuer, 55 111. 514; Crabtree vs. Dwyer, 257 111. 101. Where devise of real property contains two descriptions, one of w^hich is incomplete but not incorrect, parol evidence is admis- sible to identify the premises. Lawrence vs. Lawrence, 255 111. 365; Morrell vs. Morrell, 236 111. 640; Decker vs. Decker, 121 111. 341; Emmert vs. Hays, 89 111. 11. But if, after rejecting the surplusage, the description can only be made to apply to lands of testator by addition of words, or if there ])e but one description and it is wrong, parol proof cannot be made to identify the subject matter of the devise. Graves vs. Eose, 246 111. 76. When the devise of "the homestead" is followed by a descrip- tion which is incomplete, but not incorrect, parol evidence is com- petent to prove the legal description of the homestead. Morrell vs. Morrell, 236 111. 640. — Contract to Devise: A verbal agreement by a party to make no will which would deprive a certain relative of the estate to which such relative would be entitled by descent is in effect an agreement to devise lands and void under the Statute of Frauds. The fact that an oral agreement to devise part of an estate may include personal property as well as land, does not make the con- tract valid as to the personalty where such contract is indivisible. Dicken vs. McKinley, 163 111. 318. (A person may make a contract to dispose of his property by will in a particular way, and such contract, when based upon sufficient consideration and clearly established, will be enforced in PARTIES AND PERSONS AS WITNESSES 951 equity: Klussman vs. Wessling, 238 111. 568; Oswald vs. Nehls, 233 111. 438; Jones vs. Abbott, 228 111. 34.) *^-.^ — Latent Ambiguity: Parol admissible to explain, only where ambignity is latent. Karsten vs. Karsten, 254 111. 480; Hayward vs. Loper, 147 111. 41; Hawhe vs. C. & W. I. R. Co., 165 111. 561. "Where a legatee is named in a will, and there is no legatee of that exact name, parol evidence is admissible to show what per- son or society was intended by the testator. Missionary ^oc. vs. Cadwell, 09 App. 280. Where there is a gift to a society for charity without clearly spec- ifying the particular society and there are two or more societies carrying on same charity a latent ambiguity exists and extrinsic evidence is admissible to determine the particular society intended by donor. Hitchcock vs. Board of Home Missions, 259 111. 288. AVhere a will contains no latent ambiguity, the testator's in-, tention must be determined from language of will itself, and ex- trinsic evidence cannot be resorted to. Hawhe vs. C. & W. E. E. Co., 165 111. 561. Where an ambiguity in a will is not latent, extrinsic evidence is inadmissible to explain the will or to show the intention of the testator. Hayward vs. Loper, 147 111. 41. Where a will, when applied to the property, reveals a latent ambiguity, the extrinsic evidence to remove the ambiguity does not include the declarations of the testator made at the time of the execution of the will. Mason vs. Ely, 38 111, 138; Smith vs. Dennison, 112 111. 367. PARTIES AND PERSONS INTERESTED AS WITNESSES See Witnesses, Credibility, Bias and Hostility, Impeach- ment, Detectives, Accomplices, Cross Examination, Expert and Opinion. Credibility: — Parties of Record: The interest of a party to the action may properly be considered in determining his credibility as a witness. (Instruction approved.) Hanchett vs. Haas, 219 111. 546; N. Chi. St. Ey. Co. vs. Anderson, 176 111. 635. Where both parties to the record are natural persons an in- struction should not single out one of them and make no reference to the other. Rule otherwise where one is a corporation. N. Chi. St. Ey. Co. vs. Wellner, 206 111. 272; Hartshorn vs. Harts- horn, 179 App. 421. As distinguished from prejudice or bias resulting from friend- ship, hatred, consanguinity or other domestic or social relation, an "interest" in the result of the suit is a legal, certain and im- mediate interest, either in the cause itself or in the record as an instrument of evidence, to be used in the witness' own future litigation. Chi. City Ey. Co. vs. Mager, 185 111. 336. 952 PARTIES AND PERSONS AS WITNESSES — Criminal Action: And same rule applies to defendants who testify in criminal cases. People vs. Scarbak, 245 111. 435; Doyle vs. People, 147 111. 394: Sei- bert vs. People, 143 111. 571; Rider vs. People, 110 111. 11. — Other Persons Interested: It is always proper for the jury in determining credibility of witness to consider any interest which he is shown to have in the suit. Bennett vs. Chi. City Ey. Co., 243 111. 420; Donnelly vs. Doughertv, 174 111. 582; Dowd vs. Chi. City Ry. Co., 153 App. 85. Fact that a witness is an employe may be shown. Cicero St. Ey. Co. vs. Eollins, 195 111. 219; Donnelly vs. Dangherty, 174 111. 582; I. C. E. E. Co. vs. Haskins, 115 111. 300; C. B. & Q. Ey. Co. vs. Triplett, 38 111. 482 ; St. L. A. & T. H. E. E. Co. vs. Walker, 39 App. 388. The mere fact of a present or former employment of a witness by one of the parties is not an element in determining his credi- bility, or the weight of his testimony, unless, in addition, it be shown that he has an interest in the result of the litigation. Dowd vs Chi. City Ey. Co., 153 App. 85. The jury cannot disregard the testimony of an unimpeached witness simply because he is or has been in the employ of the de- fendant. Christiansen vs. Graver Works, 223" 111. 142 ; C. P. & St. I>. Ey. Co. vs. Eollins, 195 111. 219; I. C. E. E. Co. vs. Haskins, 115 111. 300; Eandall vs. E. S. D. & E. Co., 158 App. 56; West Chi. St. Ey. Co. vs. Eafferty, 85 App. 819. Proof of Interest: — On Direct Examination: When interest disqualified a wit- ness, proof of such interest was not confined to his cross examina- tion, and although our statute has removed the disqualification, interest may still be shown to affect the witness' credibility, and by the same kinds of evidence, admissible to prove tlie fact when it resulted in his disqualification. City of Aurora vs. Scott, 82 App. 616. — Cross Examination: It is always proper in cross examina- tion to interrogate a witness, within reasonable limits, as to any matter of fact calculated to affect his credibility as a witness or the weight of his testimony and especially is this true as to mat- ters which pertain to his relationship to the parties; his interest in the result of the suit ; the effect of his testimony upon himself, his interests or his character, and the like. Chi. City Ey. Co. vs. Carroll, 206 111. 318; I. C. R. E. Co. vs. Burke, 112 App. 415. And by whom he is employed and whether he is to be paid, to show his interest. West Skokie Drainage Dist. vs. Dawson, 243 111. 175; MacMahon vs. Chi. City Ry. Co., 239 111. 334. And it is error to refuse to allow cross examination as to amount which witness received for his services and his interest in the suit. Kerfoot vs. City of Chicago, 195 111. 229. Witness may be asked if he is indebted to party calling him. Moline Wagon Co. vs. Preston, 35 App. 358; People vs. Darr, 262 111. 202. PARTITION 953 PARTITION See Witnesses. JUDICIAL PARTITION. Right to: — In General: Owners of the fee are entitled to partition as a matter of right, except where the interests of minors are involved, and the chancellor can see that the partition will result injuriously to their interests. Whittaker vs. Ehoads, 242 111. 146; Hall vs. Garbert, 213 111. 208; Miller vs. Lauuing, 211 111. 620. And this imperative right extends to reversioners and remaind- er-men owning land in fee, subject to life estate, even though they are not entitled to possession. Whittaker vs. Ehoads, 242 III. 146; Deadman vs. Yantis, 230 111. 243; Drake vs. Merkle, 153 111. 318. Court may withhold decree until expiration of time for filing claims in probate court. Fisher vs. Butz, 224 111. 379. — Title : A partition lies though legal title is wholly in com- plainant. Bissell vs. Pierce, 184 111. 60. — Contract: Equity will not award partition at suit of one in violation of his own agreement or in violation of a condition or restriction imposed upon the estate by one through whom he claims. Cox vs. Johnson, 242 111. 159; Ingraham vs. Mariner, 194 111. 2G9; Hill vs. Eeno, 112 111. 154. Heiuinger vs. Meissmer, 261 111. 105. And this though verbal contract, and notwithstanding Statute of Frauds, where contract has been so far performed that its repu- diation by one party would perpetrate a fraud upon the others. Martin vs. Martin, 170 111. 639. Weight and Sufficiency: — Undivided Interest: A complainant in partition must show he owns an undivided interest in the property sought to be par- titioned, as alleged in the bill. Owen vs. Village of Brookport, 208 111. 35. — Motives: The right to have partition decreed between the owners of land is an absolute right, resulting from the mere existence of the relation of joint tenants and tenants in common. Therefore the motive which may have moved a party to seek a decree in partition is wholly immaterial. Trainor vs. Greenough, 145 111. 543. — Disagreement of Parties: Partition act requires that peti- tion for partition of land shall particularly describe the premises and set forth the rights of all parties interested therein so far as known, including tenants for years, for life, and all persons who, upon any contingency, may be or become entitled to any beneficiary interest "in the premises, and pray for the partition of the same. That is all that is required to be alleged and proven. It is not necessary to allege and prove the inability of tenants to agree upon a division. ^,, ^^„ Trainor vs. Greenough, 145 111. 543; Hall vs. Garbert, 213 lU. 208. 954 PARTITION — Color of Title : A party claiming ownership under color of title, possession and payment of taxes for seven years, cannot maintain partition by such prima facie title. He must show par- ties claiming adverse title are under no disability and that their title is completely barred. Boss vs. Cabb, 48 111. 111. — Tenants in Common: Under section 1 of the partition act, providing where land is held in tenancy in common, any per- son interested therein may compel a partition, a person is not entitled to partition unless he can show that he owns an inter- est as tenant in common. McConnel vs. Pierce, 210 111. 627; Euddell vs. Wren, 208 111. 508. — Common Source: Where all parties to a bill for partition claim through a common source, proof of title in the person under whom they claim is not necessary and this especially where the pleadings admit that such person was seized in fee of the prem- ises. O'Melia vs. Mullarky, 124 111. 506. — Possession: To maintain suit for partition, it is not neces- sary that partitioner should prove right of possession. Deadman vs. Yaiitis, 230 111. 243; Miller vs. Lanning, 211 111. 620; ScoviUe vs. Hilliard, 48 111. 453. Solicitor's Fees: Are properly allowed where bill correctly states interests of parties, and defendant fails to present any substantial defense. Washburn vs. Scott, 233 111. 569. Submitting the question of a reasonable solicitor's fee in par- tition to attorneys called before the court by its own motion, and basing allowance upon their testimony is ground for reversal. Wit- nesses should be sworn and question determined by the court upon such testimony, which should be preserved in the record by certificate of evidence. McMullen vs. Eevnolds, 209 111. 504; Burrows vs. Merrifield, 243 111. 362 ; Metheny vs. Bohn, 164 111. 495. PAROL PARTITION. Effect : Tenants in common may make parol partition of their real estate, and though such partition cannot transfer the legal title, it will be enforced in equity, if followed by a several possession in accordance with the agreement of partition. Ater vs. Smith, 245 111. 57; Duffy vs. Duffy, 243 111. 476; Sontasr vs. Bigelow, 142 111. 143; Shapard vs. Rinks, 78 111. 188; Nicholas vs. Padfield, 77 111. 253. Weigfht and Sufficiency of Evidence: A mere severance of possession between tenants in common may be inferred from far less proof than would be required to show a sale of land to a stranger. Thomlin vs. Hilyard, 43 111. 300. Acts and declarations may be sufficient to prove partition. Markel vs. Wakeman, 107 111. 251. After acquiescence in a partition of lands for a great period of time without any question of its validity, it will be presumed. PARTNERSHIP 955 if necessary to sustain same, that proper partition deeds were executed by the parties in interest. Lavallc vs. Strobel, 89 111. ;{70. The execution of deeds in part performance of oral contract for partition, does not prevent the introduction of oral evidence of the terms of the contract. Lacy vs. Guard, 60 App. 72. PARTNERSHIP See NoN Joinder. EXISTENCE OF PARTNERSHIP. Queotion of Fact : The question of partnership or no partnership is one of fact. James vs. Bergevin, 83 App. 607. Presumptions : — Sharing Profits: Where parties agree to share the profits of a business, the law will infer a partnership between them in the business to which the agreement relates. This presumption will control until rebutted by proof to the contrary. Miller vs. Meers, 15.5 111. 284; Lockwood vs. Doane, 107 111. 235; Butler vs. Merrick, 24 App. 628. — Possession of Note as Joint Payees: The possession of a note by one of two joint payees is not evidence that the payees are partners, Imt is simply prima facie evidence of the title disclosed upon the face of the note. Eyhiuer vs. Feickert, 92 111. 305. — U.se of Firm Name : That parties do business together under a firm name, coupled with the fact that each gives his personal attention to the business, raises a strong presumption that they are partners. Haug vs. Haug, 193 111. 645. There is no presumption of law or fact that a firm name in- cludes more than one person, and if it is desired to show the names of the plaintiffs, the fact of partnership must be put in issue by verified plea. Robinson vs. McGarrity, 28 111. 423; W. Chi. Park Comrs. vs. Schil- linger, 117 App. 525. Burden of Proof: — In General: The burden of proving the existence of a part- nership is upon party alleging it. Turber vs. Page, 143 111. 622; Smith vs. Knight, 71 111. 148. When one of several defendants, who are sued as partners, puts the partnership or joint liability in issue by the general issue prop- erly verified, the burden of proof to show the partnership or joint liability is upon plaintiff and not upon such defendant to show that he was not a partner, or liable as a joint maker of the note sued upon. Kennedy vs. Hall. 68 111. 165; Walker vs. Wood, 170 111. 463; Edwards vs. Cleveland Dryer Co., 83 App." 643. Where plea denying partnership is put in issue by replication thereto, the burden of proving existence of partnership is on party so replying. Meyer vs. Krohn, 114 111. 574. 956 PARTNERSHIP In absence of plea denying partnership 1)urden of proving that no partnership existed is upon defendants. Bredhoff vs. Lcpinan, 181 Apji. 247. — Continuance: Where, to all outward appearances, and in their relations to third persons, there has been a dissolution of the partnership and a transfer of the firm property to one partner, one asserting the continuance of a secret partnership has the bur- den of proof. Wright vs. Cudahy, 168 111. 86, Admissibility of Evidence: — Admissions and Declarations of Partners: Partnership may be proven by evidence that each of the alleged partners liad ad- mitted its existence. Gordon vs. Bankard, 37 111. 147. Such declarations are always competent to bind the declarant, and it is not requisite that all be present when the declaration is made by one, in order that the same be admitted against him. Eogers vs. Suttle, 19 App. 163. But the declarations of a purchaser of goods, to the vendor, that some other person not present is jointly interested in the purchase, is no evidence whatever against such person to establish the part- nership. Gardner vs. N. W. Mfg. Co., 52 111. 367. A stranger may prove the partnership by acts and admissions of the partners, although written articles of partnership may ex- ist between them. Kaskaskia Bridge Co. vs. Shannon, 6 111. 16. Where action is pending against two as partners, and one of the defendants puts the fact of partnership in issue by proper plea, the admissions or statements of his co-defendant, made in his absence, in reference to the existence of the partnership, are not, in absence of other evidence tending to establish a partner- ship, admissible on the issue. Conlan vs. Mead, 172 111. 13; Hahn vs. St. Clair Savings Co., 50 111. 456; Hohenadel vs. Ellsworth, 154 App. 484; Bartlett vs. Wilcox, 68 App. 142; Montgomery vs. Black, 25 App. 22; XIII 111. Notes 1096, §51. Where sufficient evidence has been given to raise a fair presump- tion that two or more persons are partners, then the acts and declarations of each are admissible as evidence against the others, for the purpose of strengthening the prima facie case already made. Daugherty vs. Heekard, 189 111. 239; Conlan vs. Mead, 172 111. 13; Thomas vs. Mosher, 128 App. 479. And this though not made in the presence of party sought to be charged. Daugherty vs. Heckard, . 189 111. 239 ; Contra, Gardner vs. N. W. Mfg. Co., 52 111. 367. Mere loose and casual remarks, indefinite in their character, will not, as between the persons themselves, prove a partnership, but one claiming to be the partner of another, so as to participate PARTNERSHIP 957 in a fund claimed to belong to a partnership, should establish that relation by satisfactory evidence. Walker vs. Mathews, 58 111. 19(3. The statements, whether written or verbal, of one of several partners, made after dissolution of the firm, although relating to its business before dissolution, are incompetent to charge the other members of the firm. Nor is the rule different when the admissions sought to be used are made by either a plaintiff or defendant. A co-plaintiff, after a dissolution of a partnership, is no more an agent of his co- plaintiff than is such a defendant of the other members of a dis- solved partnership. Wiuslow vs. Newlau, 45 111. 145; Miller vs. Neimerick, 19 111. 171. Wliere three persons were sued as partners, only two of whom were served, the other not appearing, and the principal question in issue was the existence of the partnership, the court admitted in evidence the declarations of defendant not in court, which was held error, as the declarations of defendant not a party to the trial were not competent evidence to prove the partnership. Smith vs. Hulett, 65 111. 495; Yoakum vs. Benson, 45 111. 435. (See Admissions and Declarations.) — Articles of Partnership: AVhere, by proper plea, the exist- ence of a partnership is put in issue, the articles of co-partner- ship are admissible. Meyer vs. Krohn, 114 111, 574, — Books: To entitle firm books to be received in evidence in action for accounting, the entries therein must have been made contemporaneously with the transactions recorded. Donaldson vs. Donaldson, 142 App. 21. Where one partner, acting as time keeper, made entries in time book kept by himself, which was transcribed in book kept by book-keeper of firm, it was held, on bill for accounting, that part- ner's book was inadmissible, the book kept by the book-keeper being the book of original entry. O'Brien vs. Hanley, 86 111. 278. — Conduct of Parties: As between partners themselves, the partnership may be shown by their conduct, the mode in which they have dealt with each other and the mode in which each has, with the knowledge of the other, dealt with other people. VanBuskirk vs. VanBuskirk, 148 111. 9. Whether persons are partners as between themselves may de- pend upon their contract with each other. Whether they are partners as to others, depends upon their conduct. Chi. T. & S. Bank vs. Kinnare, 174 111. 35S ; Eeynolds vs. Eadke, 112 App. 575 ; Janes vs. Bergevin, 83 App. 607 ; Elliott vs. Swannell, 154 App. 570. — Intent of Parties: Where a partnership is claimed to exist, not evidenced in writing, the intention of the parties is a material fact, to be ascertained from their conduct and declarations ; but when tlie agreement is in writing, its true construction must be determined from the terms of the written instrument, and from that construction it is to be found whether a partnership exists. State Natl. Bank vs. Butler, 149 111. 575; Smith vs. Hart, 179 App. 98. 958 PARTNERSHIP As between the parties, the question of the existence of the partnership relation is one of intention, to be gathered from all the facts and circumstances. Natl. Surety Co. vs. Townsend, 176 111. 156. — Opinion : Testimony of a witness that he took, from what the party said, that such party and another were partners, is inadmissible. Bragg vs. Geddes, 93 111. 39. — Parol: An agreement to form a partnership for purpose of dealing and trading in lands for a profit, is not within the Statute of Frauds, and the existence of a partnership and the ex- tent of each party's interest therein may be shown by parol. Speyer vs. Desjardins, 14-4 111. 641; Vanlloiisen vs. Copeland, 79 App. 139; Frankenstein vs. N'orth, 79 App. 669; Smith vs. Hart, 179 App. 98. And this whether the title is in one partner or in all. VanHousen vs. Copeland, 180 111. 74. Where a written instrument bears the name of but one person, presumably it is the undertaking of that person, but it is com- petent to establish by parol proof that the contract is that of a co-partnership, and that the firm entered into the contract in the name and style of the individual. Daugiierty vs. Heckard, 189 111. 239; H. E. & E. Ky. Co. vs. Walsh, 85 111. 58; Barker vs. Garvey, 83 111. 184. — Eepufafion: Evidence of general reputation is ina^dmissi- ble to prove existence of a partnership. Bowen vs. Eutherford, 60 111. 41. — Claiming Insurance Loss: Proof to effect that alleged firm sus- tained a fire loss, and made claim therefor iri a partnership capac- ity, is admissible to prove issue of partnership. Thomas vs. Mosher, 128 App. 479. — Under Pleadings: Joint liability may be denied in action of assumpsit under plea of the general issue, even though unverified; the effect of verification is simply to cast the burden of proving the joint liability in the first instance upon plaintiff. Mart'in vs. Trainer, 125 App. 474; Bensley vs. Brookway, 27 App. 410; Dorman vs. Bangs, 3 App. 400; Eosenberg vs. Barrett, 2 App. 386; Davidson vs. Hill, 1 App. 70; Bredhoff vs. Lepman, 181 App. 247. Weight and Sufficiency: — Circumstances: The fact of a partnership actually existing between certain parties may be implied from circumstances. Kelleher vs. Tisdale, 23 111. 405. The existence of a partnership may be established by circum- stantial evidence. Loucks vs. Paden, 63 App. 545. — EoUling Out: A man may so act as to make himself liable as a partner whether he be so in fact or not, and when he has so acted, he estops himself from denying that he is a partner, as to others who rely upon his actions and give credit upon the faith that he is what he seems to be. Janes vs. Bergevin, 83 App. 607. Party must act with knowledge that other is holding himself out as a partner. Hefner vs. Palmer, 67 111. 161. PARTNERSHIP 959 Such knowledge may be inferred if party has held himself out "to the community." Hefner vs. I'alnier, 67 111. 161. Competency of Witnesses: Where a concern carries on a particular business and occupies certain offices, its employees, paid by it and constantly concerned with its affairs, are competent witnesses to testify as to fact of partnership. Clark vs. Hoffman, 128 App. 422. Where a surviving- member institutes suit in regard to the part- nership concerns, the administrator of the deceased partner is not a competent witness in behalf of plaintiff, although he may release all his interest in the suit, for, if the party so calling him should be defeated, he would have the right to pay the costs out of the partnership effects, and thus diminish the assets which would come to the hands of the witness as administrator. To that extent he would have an interest in the result of the suit, and would there- fore be incompetent, notwithstanding his release. Mvers vs. Walker, 31 111. 353. LIABILITY OF PARTIES. Burden of Proof: — Joint Liability: Where joint liability is denied by part of defendants, by plea verified by affidavit, the burden is upon plaintiff to show the joint liability of all the defendants, including those who failed to file pleas, unless he shall amend his declaration and dismiss the suit as to such of the defendants as are not shown to be jointly liable with the others. Powell Co. vs. Finn, 198 111. 567; De St. Auhin vs. Laskin, 74 App. 455. — Liahilitij of Deceased or Retired Pariner: Where a creditor of a firm continues to deal vAih same after the death or retirement of one partner, the burden is on the representative of the deceased partner or retiring partner to show a release of the liability. Hayward vs. Burke, 151 111. 121. — Authority of Partner to Act: In non-trading firm, burden of proving authority of one member to bind the other rests upon plaintiff. Teed vs. Parsons, 202 111. 455. — Notes of Partner a Firm Transaction: Party seeking to en- force individual note of partner guaranteed by firm, has burden of showing that it was in fact a partnership transaction. Davis vs. Blackwell, 5 App. 32. AVhen defendant shows a note to have been executed by a partner in fraud of the firm, it throws the burden of proof upon plaintiff to show that he came by the note fairly and without knowledge of the fraud. Charles vs. Eennick, 156 IlL 327 ; Wright vs. Brosseau, 73 111. 381. Presumptions : — Partner's Authority: Each partner is presumed to have authority to act for the others within the scope of the business. Crane Co. vs. Tierney, 175 111. 79. If a partner professes to act for the firm in the business actually carried on by it, third parties with whom he deals are not bound 960 PARTNERSHIP bj the limitations contained in the articles between the partners, of which they have no notice. Craue Co. vs. Tierney, 175 111. 79. — Nominal Partners: Tlie presumption of authority continues as to nominal partners who, by private arrangement, have ceased to be actual partners, where third party dealing with such part- ner has no notice of such arrangement. T. & S. Bank vs. Kinuare, 174 111. 358. Partner's Obligations: Notes by partner are presumed to be his individual obligation and not that of the firm. Davis vs. Blackwell, 5 App. 32. Though purchase money notes be signed by members of firm individually, yet when it is showni that cash payments were made from partnership funds, the account carried on firm books as part- nership assets, and notes as partnership notes, it will be presumed that such notes were the firm obligation, and not that of indi- viduals signing. Dreyfus vs. Union Natl. Bank, 164 111. 83. Admissibility of Evidence: Partnership books are admissible to determine whether or not the transaction recorded was a firm transaction. Smith vs. Hood, 4 App. 360. For purpose of detennining whether notes signed by members of firm individually were firm obligations, the nature of the trans- action out of which they grew and how it was intended they should operate may be considered. Dreyfus vs. Union Natl. BauK, 164 111. 83, Where retiring partner paid note which he claimed to be a firm indebtedness, and included in a list of such obligations which were to be paid by the firm, the list of such obligations, made at time partner retired, is admissible to show note was deemed a firm obligation. Shennefield vs. Dutton, 85 IlL 503. Weight and Sufficiency: Fact that notes were signed by members of firm individually is not necessarily conclusive that they are individual and not firm obligations. Dreyfus vs. Union Natl. Bank, 164 111. S3. DISSOLUTION. Evidence to Show Notice: To escape liability upon contracts by commercial partnership made in firm name after dissolution or change, notice must be given to those likely to be affected thereby ; as to those with whom firm has had dealings, actual notice is required; as to others, a notice by publication is sufficient, Bredhoff vs. Lepman, 181 App. 247. Notice of dissolution may be established by conversations between retiring partner and salesman of opposite party. Meyer vs. Krohn, 114 111. 574. • Proof of mailing notice, properly addressed, is prima facie evi- dence of receipt of same by addressee. Meyer vs. Krohn, 114 111. 574. PATENTS ''9^1 Weight of Partners' Testimony: Testimony hy oJie ]);irtner Ihat firm was dissolved is without force when it is shown by liis conduct the firm was contimuHi without change of name, and by his own written evidence that the firm was in fact not dissolved. Kelly vs. Hanes, 2.1.S 111. 163, PARTICULAR ACTIONS. Between Partners: — PrcsvmpHon o-.s fo Comprm^aUon: In absence of any ao^ree- ment between partners allowing a salary to one or more of them, it is presumed that each is to render his services for the promotion of the interest of the firm without salary. Street vs. Thompson, 229 111. 613; Ligare vs. Peacock, 109 111. 94. — Presumption as to Partner's Interest: "Wlien a partnership is shown, in absence of proof to contrary, the law will presume that each partner has an equal interest. Farr vs. Johnson, 25 111. 522; Eoach vs. Perry, 16 111. 37; Henrick- son vs. Eeinback, 33 111. 299. — Presumption as to Ownership of Property: The presump- tion, until rebutted, is that the property, at the termination of the partnership, belongs to the firm, and if so, and one partner has appropriated it to his own use, he must account for it on the set- tlement of the affairs of the firm. Laswell vs. Bobbins, 39 111. 210. — Parol to Explain Agreement: The written instrument must be held to embody final understanding and agreement between the parties, whatever may have been tlie previous oral propositions or agreements. Pierpont vs. Lamphere, 104 App. 232. And in absence of allegation of fraud or mistake, parol is in- competent. Taft vs. Schwamb, 80 111. 289. — Partnership Books: The partnership books are presumed to contain a true record of the transactions between the partners. Stuart vs. McKickan, 74 111. 122; Grejorg vs. Hord, 129 111. 613. In action for accounting, the several books, to which the partners have had daily access, and in Avhich the firm accounts and repeated balances are kept without complaint or objection to same nntil after the dissolution, are admissible to show the true statement of affairs between the partners. Gregg vs. Hord, 129 111. 613. PASS BOOKS See Books of Account. PATENTS Evidence of Title: A patent is not the title itself, but the evidence thereof. McConnell vs. Wilcox, 2 111. 344. Ev.— 61 962 PATENTS Senior and Junior: Where two patents have issued for the same lands to different persons at different times, the older patent is the highest evidence of title, and so long as it remains in force, is conclusive against a junior patent. Bninor vs. Manlove, 2 111. 156. Certified Copy: A certified copy of a patent for land issued by the recorder or any receiver or register of any land office is admissible. Wyman vs. City of Chicago, 254 III, 202; Lane vs. Bonnelman, 17 111. 95. Entry Book: AYhere a party in ejectment relies upon a patent title and alleges the loss of the patent, the book filed in county clerk's office, giving names of purchasers and date of each entry of land in the county, not certified to by the register of the land office is not admissible in evidence to prove the entry of the land. Huls vs. Buntin, 47 111. 396. And an entry cannot be proven by a book certified by the State Auditor to the county clerk. Neiderer vs. Bell, 174 111. 325. Duplicate Patents: Under school law of 1857, authorizing Auditor of Public Accounts, upon certain proof furnished, to issue in lieu of a patent for land, which had been lost or destroyed, "a duplicate copy there- of," it is not necessaiy that such copy should have affixed to it the seal of state, to render it admissible in evidence for the same pur- poses for which the original might have been offered. Jackson vs. Berner. 48 111. 203. The statute which provides ''that purchasers of common school lands, and their heirs, and assigns, may obtain duplicate copies" of patents, does not restrict the use of such duplicates as evidence, to the purchaser or his heirs or assigns. Wlien issued, they are evidence the same as the original. Eeich vs. Berdel, 120 111. 499. Impeachment : A patent cannot be impeached by parol. Briuier vs. Manlove, 2 111. 156 ; Gardner vs. Ladue, 47 111. 211. Recordation : Patents of land from the United States do not come Avithin the purview of the recording laws of the different states, when the terms employed do not specially include them. The original record in the general land office from which patents are issued gives notice to the world of their existence. Lomax vs. Pickering, 165 111. 431; Doppelt vs. Geliebter, 173 App. 634. Nor need a deed requiring President's approval or a record thereof be recorded where the land is located. Lomax vs. Pickering, 165 111. 431. PAUPER See Domicile. PAYMENT 963 PAYMENT Presumptions : — Existence of Debt: The production of a deed of trust and note secured by it, by the payee or his representative, is prima facie evidence that the debt still subsists. Steininetz vs. Laug, 81 111. G03. Where the existence of a debt is admitted, or proven, payment will not be presumed. Atkinsou vs. Linden Steel Co., 138 111. 187. — Possession of Note: The possession of a promissory note in the hands of the personal representative of payee, unexplained, is prima facie evidence that it has not been fully paid, and when it is produced in evidence, the burden of proof is upon the maker, to establish payment, by a preponderance of the evidence. Eitter vs. Shenk, 101 111. 387. Possession of note by maker raises presumption of payment. Shippen vs. Whittier, 117 111. 282; Tedens vs. Shiinieis, 112 111. 263; Teeter vs. Poe, 48 App. 158; Allen vs. Sawyer, 88 111. 414; XI 111. Notes 629, § 378. But when the evidence show^s the circumstances, manner and means of obtaining the possession, the j^resumption or inference of payment, if any, must come from these, and not from the mere fact of possession. If they show it was wrongfully delivered by a party to whom the payee had entrusted it for another and differ- ent purpose, such possession is no evidence of payment. Teeter vs. Poe, 48 App. 158. The presumption of payment does not arise where the debtor had the means of obtaining possession of or of cancelling the obli- gation other than by paying it. Grimes vs. Hilliary, 150 111. 141. — Possession of Mortgage : The possession of a mortgage, given to secure payment of two notes, without the last note, with an in- dorsement of full payment and satisfaction on the mortgage, is not conclusive evidence of payment, and may be explained, as, by showing that it was made by the holder of the mortgage and notes when sent for collection, and not to be delivered except on full payment. Allen vs. Sawyer, 88 HI. 414. —-Possession of Due Bill: Possession of due bill by maker is prima facie evidence of its payment. Tedens vs. Schumers, 112 111. 263; Steiger vs. Bent, 111 111. 328. — Time of Payment: When no time is set, presumption is that payment is to be made on delivery of property. Ainsworth vs. Eoush, 109 App. 299. — From Giving Check: Presumption obtains that a cheek is given in payment of an existing debt, or that money was paid for it at the time. Kinahan vs. Butler, 133 App. 459; McKenzie vs. Barrett, 148 App. 414; Chestnut vs. Chestnut, 15 App. 390. 964 PAYMENT — From Giving Note : The giving of a promissory note for an open account is prinm facie a payment of the account. Hoodless vs. Eeid, 112 111. 105. The mere giving of a note does not of itself extinguish a pre- cedent debt whether it be an account or other demand. In such case it is a question of intention. Eayfield vs. Tineher, 180 App. 454; Archibald vs. Argall, 53 111. 307,' — Application of Payments: Application of payment is pre- sumed to apply to debts first due in point of time. Sprague vs. Hazenwinkle, 53 111. 419; Dehner vs. Helmbacker, 7 App.' 47. Or from the acts ajid dealings of the parties, and the nature of the transaction. Lyon vs. Williams, 15 App. 27, — Lapse of Time: Presumption of payment may arise from lapse of time, independent of Statute of Limitations. After a lapse of twenty years, debts of whatever degree, are presumed satisfied. Fagan vs. Bach, 253 111. 588; Eiehards vs. Carter, 201 111. 165; Luther vs. Crawford, 116 App. 351. But not of mortgage, until time of limitations has expired. Locke vs. Caldwell, 91 111. 417.-'' ^ -T — -From Receipt in Full: A receipt in full of all demands is prima facie evidence of the payments of all notes and claims exist- ing at time receipt is given. Marsten vs. Wilcox, 2 111. 269. — Recitals in Deeds: The formal clause in a deed reciting the consideration is only prima facie evidence of payment. Koch vs. Both, 150 111. 212. — Recitals in Patents: While the recital, in a patent issued by the state for land, of the payment by the purchaser of the pur- chase money, may not be evidence of the fact between third parties, yet when one, claiming under the purchaser, in applying for the patent, places his right to have it issued to him on the ground that the purchaser has paid for the laud, this will be an admission by him that the purchase money was thus paid, and will be binding upon him in an application for a dower by the wdfe of one also claiming under such purchase. Copies of letters and other papers, from the secretary of state, are competent evidence to prove this admission, although for other purposes they might not be evidence. Stow vs. Steele, 45 111. 328. — From General Indorsements: "When a general indorsement of payment appears on a note, payment will be presumed to have been made by the maker, who is primarily liable, and not by an assignor on the note, especially when the indorsement is made by assignor himself, who has the note in his hands for collection against the maker. Shepard vs. Calhoun, 72 111. 337. — Failure to Demand Payment: The presumption of payment of a promissory note does not arise upon a failure to make a demand at maturity, or within any period of time thereafter less than that fixed by statute of limitations. Aultmann vs. Conner, 25 App. 654. PAYMENT 965 Burden of Proof: — As Governed hij Pleadings: Payment if5 an affirmative de- fense, and burden of proving it is on party pleading. Turner vs. Turner, 104 Apj). ]; Evans vs. Construction Co., 142 App. 375; Seass vs. Wright, 138 App. 6; Eoss vs. Skinner, 107 App 579- Howard vs. Bennett, 72 111. 1*97; Atkinson vs. Linden Steel Co., 138 111. 1S7; Mosely vs. Waite, 180 App. 408; XllI 111. Notes 1145, § 27. — Impeachment of Receipt: Burden of impeaching receipt is upon party who gave it. Long vs. Long, 132 App. 409 ; McElhaney vs. People, 1 App. 550. — Payments Not Credited: In proceeding to foreclose a trust deed, the burden is upon defendant to prove alleged payments by hiiu not credited on the note. Archibald vs. Banks, 203 111. 380. — When- Existence of Debt is Admitted: Burden is upon debtor to prove payment. Atkinson vs. Steel Co., 138 111. 187. — Authen-ity to Make Payment: Burden is upon party alleging. Master vs. Quincy Natl. Bank, 163 App. 645. — Payment in Full or Upon Account: Burden of showing is upon defendant. Evans vs. Eoss Construction Co., 142 App. 375; Duffy vs. Leavitt. 81 App. 410. ' Admissibility of Evidence: — Under General Issue: Proof of payment may be made under general issue. Kassing vs. Int. Bank, 74 111. 16; Crews vs. Bleakley, 16 111. 20; O'Brien vs. O'Brien, 75 App. 263; Coulter vs. Trav. Pass. Assn.^- 144 App. 255. Partial payment is a defense pro tanto and may be shown under plea of payment or under general issue. Hayes vs. Smith, 4 111. 427; Keyes vs. Fuller, 9 App. 528. — To Show Application: Parol evidence is competent to show agreement between debtor and creditor, collateral to a note, as to how payments shall be applied. Saffer vs. Lambert, 111 App. 410; Ebert vs. Arends, 190 111. 221. Applications by either party may be proven by circumstances as w^ell as by express declarations. Bayley vs. Wynkoop, 10 111. 449 ; Snell vs. Cottingham, 72 111. 124. Where the maker of a note, in suit thereon, testified that in mak- ing a payment he directed it to be applied on the note, and plain- tiff that it was made on an account, it was held error to allow plaintiff to give in evidence a copy of the account, with his indorse-,- ment of credit thereof, made of his owai motion, without the privity of the maker or his surety. The entry of a payment on an account by a creditor is of itself no evidence of any authority to make such application. Craig vs. Miller, 103 111. 605; Cf. Daugherty vs. Knowlton, 19 App. 283. — Parol Generally: Payment may be proven by parol, though a receipt w^as given. Hinehman vs. Whetstone, 23 111. 185; West Chi. St. Ry. Co. vs. Piper, 165 111. 325 J Walker vs. Glos, 245 111. 253. 966 PAYMENT Although payment evidenced by a receipt may still be proven by a witness, yet he must swear to the fact of payment of his own knowledge, and not to any information he may have derived from the receipts. Keith vs. Maffit, 38 111. 303 ; Loiighry vs. Mail, 34 App. 523. Conceding that on action on note where payment is alleged, evi- dence of the maker that he paid the payee is not evidence without a showing that the payee owned the note at the time, yet such evidence is competent to corroborate the payee's evidence that he paid an indorsee who owned the note. Wilson vs. Griffith, 171 App. 14. '..•■ — Parol to Explain Receipt: While a receipt is ordinarily very high and satisfactory evidence of the truth of its recitals, still it is always open to explanation by parol testimony. Starkweather vs. Ma<,dm]is, 196 111. 274; Ennis vs. Pullman Car Co., 165 111. 161; Paris vs. Lewis, 85 111. 597; FitzGerald vs. Colemar, 114 App. 25. — Letter's: A letter from a third party (not the maker), to the payee of a note, containing a direction to payee to pay the note out of proceeds of goods of such third party in payee's hands for sale, is inadmissible as evidence of payment of note, unless it appears request was complied with. King vs. Bush, 36 111. 142. When the question of the payment of a note, by giving a larger note, was in dispute, and it appeared the maker subsequently gave plaintiff other notes, and had, long after the maturity of the note alleged to have been so paid, written to plaintiff, directing him to present the notes he held against the maker, at a certain bank for payment, and plaintiff accordingly presented the subsequent notes, but not the one in dispute and they were paid, letter was properly admitted on part of defendant as part of the res gestae, tending to show note had been paid. Smith vs. Graves, 63 111. 422. — Checks: In action by administrator of an estate, upon two promissory notes, when defendants plead partial payment, check claimed to have been given and accepted as payment is admissible. Bailey vs. Eobinson, 149 App. 457. — Declarations of Maker at Time of Payment: In suit upon a note by administrator of an estate, defendant, in order to prove payment, called a witness to show that he had paid the witness a certain sum for deceased on account of his indebtedness to the latter. It was held that what defendant said to the witness at time of such payment was competent testimony for himself as part of the res gestae. Kicherson vs. Sternburg, 65 111. 272. — Indorsements and Credits: After a note is barred by statute, the endorsement of a payment thereon by the payee is incompetent evidence. Wellman vs. Miner, 179 111. 326; Conley vs. Pierson, 9 111. 108. Same rule applies though indorsements are of payments made prior to bar. Lowery vs. Gear, 32 111. 383. PAYMENT 967 A payment by a joint debtor will not toll the statute as to co- debtor. Kallonbach vs. Dickinson, 100 ill. 427. Where endorsements of payment on a note are in handwriting of payee, payments must be sliown by payee to have been made in fact by maker or some one autliorized by him. Waughop vs. Bartlett, 1G5 111. 1:2-1; Drury vs. Henderson, 36 App. 521. Credit given by an administrator, on a personal claim filed by himself against the estate, of a certain sum as paid by deceased during his lifetime, to the administrator on account, under the terms of the alleged contract on which the claim is based, is not of itself evidence, as against the heirs, either of the existence of the alleged contract or fact of payment. Smythe vs. Evans, 209 111. 376. — Hahits: Proof that deceased was in the habit of making prompt and punctual payments of demands against him, is only admissible in aid of presumption of payment arising from lapse of time. Parker vs. Parker, 52 App. 333 ; Cf. Orr vs. Jason, 1 App. 439 ; Thorp vs. Goeway, 85 111. 611; Chi. Trust Co. vs. Ward, 113 App. 327. But such evidence is not admissible, nor is evidence concerning habits of deceased in ''not going much in debt, and of promptly paying his debts," when not in aid of presumption of payment from lapse of time. Jones vs. Cline, 84 App. 428. Evidence is admissible to show that deceased was prompt to pay his debts, as tending to rebut any circumstantial or other evidence that his books were improperly kept. Mark vs. Miles, 59 App. 102. — Statements of Creditor: Where two persons are jointly in- debted to a third, either has the right to pay the debt and call upon his co-debtor to repay his moiety. The payment may be proven by either the verbal or written confession of person to whom payment ought to have been made, and his receipt is prima facie evidence that payment has been made. Ballance vs. Frisby, 3 111. 65. — Books of Account: In action by payee against maker of promissory notes, where it appeared there were mutual dealings between the parties, and defendant presented in evidence the receipt of plaintiff, subsequent to date of notes, in full of all demands, he had the right to give in evidence his books of account for purpose of showing by entries therein how he had paid the notes, and so account for the giving of the receipt by plaintiff. Taliaferro vs. Ives, 51 lU. 247. Weight and Sufficiency: — In General: Where, in suit to foreclose mortgage executed by a husband and wife, payment is pleaded, testimony by the wife that on the morning payment was alleged to have been made, the husband took with him, when he and plaintiff started to the bank, the requisite sum of money to pay the mortgage, and by the husband that he made the payment at the bank, with evidence showing an indorsement of payment on the note, with plaintiff's 968 PAYMENT admission to a disinterested person that the note had been paid, is sufficient to warrant a finding of payment. Keller vs. Butterworth, 103 App. 87. — Receipt: A written receipt is evidence of the highest and most satisfactory character, and to do away with its force, testi- mony should be convincing. It must be overcome, if at all, by a clear preponderance of the evidence. Ennis vs. Pullman Car Co., 165 111. 161; Neal vs. Handley, 116 111, 418; Eosenmiller vs. Lampe, 89 111. 212; Eeed vs. Phillips, 5 111. 40; XIII 111. Notes 1147, § 34. — Indorsement by Holder of Note: An indorsement of partial payment on a note, made by the holder, without the privity of the maker, is not, of itself, and uncorroborated, sufficient evidence of payment to defeat a defense created by the Statute of Limitations. Declarations of a party, in his own favor, can never be received in evidence. If a payee's declarations that he received a partial payment are not admissible in evidence, equally so is his written acknowledgment of such payment. Wellman vs. Miner, 179 111. 326; Simmons vs. Nelson, 48 App. 520; Treadway vs. Treadway, 5 App. 478. — Recitals Indorsed on Note: A statement on the back of a note secured by deed of trust, that a release of the trust deed was made and delivered by the order of the holder, which is cancelled, where no release is shown, and the note and deed are found among the papers of deceased payee, is not sufficient to show payment, or a release of the deed of trust. Steinmetz vs. Lang, 81 111. 603. — Financial Condition of Creditor: Where defendant sought to prove payment of debt sued for by administrator, to intestate in his lifetime, testimony in behalf of the plaintiff as to how much money intestate had two weeks before his death, is not admissible as such proof would have no tendency to show the defendant had not paid him money. Trude vs. Myers, 82 111. 535. — To Show Application: The mere fact that a party has shown payment to the other party, does not conclusively establish that such payment was made and received upon the particular obli- gations in suit, but such question is to be determined, as a matter of fact, from all the facts and circumstances in evidence. Robinson vs. Bailey, 113 App. 123. — Accptance and Payment of Chech: In action by adminis- trator on note given by deceased, proof that defendant gave de- ceased a check for a certain sum, that the check was paid, that deceased mentioned the matter of the check to a person that day and asked if he could *' re-loan" the money, is sufficient to prove payment, when coupled with proof tending to show that deceased, at the time, held no note against defendant except the one sued on. Bailey vs. Eobinson, 233 111. 614. Dep-ee of Proof: Party claiming payment is required to establish same by a pre- ponderance of the evidence. Boon vs. Estate of Bliss, 98 App. 341; Laswell vs. Gahan, 122 App. 513. PECUNIARY ClRCUMSTANCEy 969 In suit on due bill, in possession of maker, plaintiff naust prove defendant owes him, by a preponderance of the evidence. Tedens vs. Schumcrs, 112 111. 263; Stiger vs. Bent, 111 111. 328, PECUNIARY CIRCUMSTANCES See Payment, Wages, Earning Capacity and Domestic Rela- tions. ADMISSIBILITY OF EVIDENCE. Assault and Battery : Evidence is admissible to show pecuniary condition of parties. Schmitt vs. Kinrus, 234 111. 578; Cochran vs. Amnion, 1(5 111. 316; Drohn vs. Brewer, 77 111. 280; Jones vs. Jones, 71 111. ,562. Defendant can introduce no evidence on the subject, even in mitigation of damages, unless such proof is tirst introduced by the plaintiff. Mullen vs. Spangenberg, 112 111, 140, Criminal Conversation: Evidence of pecuniary circumstances of parties is proper. Peters vs. Lake, 66 111. 206; Eea vs. Tucker, 51 111. 110; Yundt vs. Hartrunft, 41 111. 9 ; Browning vs. Jones, 52 App. 597. Such evidence should be contined to period reasonably close to the date of injury. Geringer vs. Novak, 117 App. 160. Where case is tried several years after injury, it is error to admit proof of plaintiff's bankruptcy at the time of trial. Peters vs. Lake, 66 111. 206. Bastardy : Evidence of poverty of mother is incompetent. Corcoran vs. People, 27 App. 638. Trover : In determining whether money found on the person is the fruit of a crime, evidence is admissible of prior pecuniary circumstances and money had in bank, as well as deposits made afterwards. Stuart vs. Harris, 69 App. 668. Libel and Slander: It is always permitted to prove plaintiff's condition in life as bearing upon the question of damages. Peltier vs. Miet, 50 111. 511; Hosley vs. Brooks, 20 111. 116; XIII 111. Notes 296, § 72. And likewise of defendant. Slaughter vs. Johnson, 181 App. 693 ; Gallagher vs. Singer Sewing Machine Co., 177 App. 198; Flagg vs. Eoberts, 67 111. 48""; Hinz vs. Granpner, 138 111. 158; Dowie vs. Priddle, 116 App, 184; XIII 111, Notes 297, § 79, In an action against a publisher of a journal for publishing a libelous article of which the publisher was not the author, in fixing the amount of damages to be awarded as compensation to plaintiff for the injury received, the jury have no right to consider the wealth and standing of defendant. The extent of the circulation of the newspaper and its character and standing for fairness, justice and truth, it seems, mav be considered on such question. Storey vs. Early, 86 111, 461, 970 PECUNIARY CIRCUMSTAKCES Seduction : In an action by a father for debauching his infant daughter, it is competent to show pecuniary circumstances and position in society of both plaintiff and defendant. But this is not for the purpose of ascertaining what amount of damages the defendant is able to pay, but with a view to ascer- taining the extent of plaintiff's injury, perhaps fixing a standard of exemplary damages. White vs. Miirtland, 71 111. 250; Grable vs. Margrave, 4 111. 372. Sale to Defraud Creditors : Evidence is admissible on alleged sale to defraud creditors to prove the alleged purchaser's financial condition about the time of the transaction. Fabian vs. Traeger, 215 111. 220; Kingman vs. Reineimer, 166 111. 208. Where conveyance is attacked as in fraud of creditors, it is competent to prove grantor was insolvent or financially embarrased. Clark vs. Harper, 215 111. 24; Beach vs. Miller, 130 111. 162; Ramsey vs. Nichols, 73 App. 643. Testamentary Capacity : Evidence as to financial condition of person having claim on testator's bounty, if such condition was known to testator, is admissible in connection with the will itself in determining ques- tion of testamentary capacity, Wetzel vs. Firebaugh, 251 111. 190; Healea vs. Keenan, 244 111, 484; Dillmau vs. McDaniel, 222 111. 276. Rule peimiitting evidence of pecuniary circumstances of bene- ficiary of will, and those who might be benefited by overthrowing it does not apply to gifts accompanied by delivery. Crum vs.'Thornley, 47 111. 192. Gambling Transactions: The fact that the purchase of stock through a broker is much larger in amount than the purchaser is able to pay for, which fact is known to the broker, is competent as tending to show that the stock was not to be delivered to the purchaser. Jamieson vs. Wallace, 167 111. 388. Forgery : Proof of the financial responsibility of plaintiff and likewise of the maker of a note claimed to be a forgery, is incompetent upon such question. Stitzel vs. Miller, 157 App. 401. Money Had and Received : Where no issue of fraud is in the case, the fact that defendant sued for borrowed money had at that time a much greater sum on deposit in a certain bank is not competent as tending to support the defense that such money was not borrowed. Agat vs. Apfelbaum, 155 App. 572; Contra, Sager vs. St. John, 109 App. 358. Default Insurance Premium: Evidence inadmissible to prove that insured at time of alleged default had money and was a man of large means. Ballah vs. Peoria Life Assn., 159 App. 222. PECUNIARY CIRCUMSTANCES 971 Claim Against Estate: The financial condition of the parties at the time of the alleged execution of a note claimed to be a forgery are competent upon the question of genuineness. Orr vs. Jason, 1 App. 439; Gregory vs. Gregory, Admr., 129 App. 96; Cbi. T. & T. Co. vs. Ward, 113 App. 327; Thorpe vs. Goeway, 85 111. 611. So where claim was filed to recover an amount alleged to be due from deceased to phiintiff arising out of transactions covering a period of years and where the books kept by deceased had been offered in evidence, it is admissible to show that deceased was prompt to pay his debts and was reputed to be a man of credit, as rebutting any circumstantial or other evidence that the books were improperly kept or that he had not included all his items of account therein. Mark vs. Miles, 59 App. 102, Breach of Promise: Evidence of the pecuniary circumstances of defendant is properly admissible in evidence on trial of an action for breach of promise to marry. And in such suit it is not error to admit evidence of the pecuniary circumstances of defendant at time of the engagement, as it tends to show what he was worth at the time of trial. He may show he has sustained loss, if such be the fact, and thus show himself to be worth less. Douglas vs. Gausman, 68 111. 170; Sprague vs. Craig, 51 111. 288. Dram Shop Act: In action under Dram Shop Act, financial condition of plaintiff and of relative who supported her is competent. Nagle vs. Keller, 141 App. 444; Mayer vs. Smith, 121 111. 442. And pecuniary circumstances of deceased husband at time of decease is admissible. Flynii vs. Fogarty, 106 111. 263; Clears vs. Stanley, 34 App. 338. It is error to permit defendant, in action under section 9 of Dram Shop act, for loss of support, to show that plaintiff had received certain money as life insurance upon the death of the husband. Whiteside vs. O'Connors, 162 App. 108; Deel vs. Heilgenstein, 244 111. 239. Notes and chattel mortgages are competent as attending to show the straits to which the family of the intoxicant were reduced. DeHaven vs. U. S. Brew. Co., 153 App. 126. Negligence : — Action for Wrongful Death: Proof of the resources of the widow or next of kin, or their financial condition at time of or since the death of the deceased is not admissible. Brennen vs. C. & C. Coal Co., 241 111. 610; C. C. C. & St. L. R. Co. vs. Kinnare, 203 111. 388. Questions concerning earnings of deceased, number of children, and whether the wife and children were supported by deceased are proper. Kulvie vs. Brunsen Coal Co., 253 111. 386; Claffy vs. Chi. Dock Co., 249 111. 210; Preble vs. Wabash E. Co., 243 111. 340; Swift & Co. vs. Foster, 163 111. 50; Bonato vs. Peabody Coal Co., 156 App. 196; Beyer vs. P. B. & C. Co., 156 App. 47 ; XII 111. Notes 60, § 48. 972 PEDIGREE It is material error to admit evidence that an adult son of de- ceased was a cripple unable to do hard work, and depended upon deceased for support. C. p. & yt. L. E. Co. vs. Woolridge, 174 111. 330; P. & Ft. W. C. Ry. Co. vs. Powers, 74 111. 341. Defendant cannot prove, in abatement of damages, that widow and next of kin are entitled to receive any sum as beneficiaries of a policy of insurance on the deceased. I. C. E. Co. vs. Prickett, 210 111. 140; P. C. & St. L. E. Co. vs. Thomp- son, 56 111. 138. Nor is evidence of pension paid to wndow admissible though deceased husband may have been employe of defe.ndant. DevUie vs. City of Chicago, 172 Aj^p. 240. — Injury to Plaintiff: The domestic relations, the financial standing, or circumstances of the parties, or the dependency of others upon plaintiff is wholly irrelevant and the admission is error. IM'^.Carty vs. Spring A'alley Coal Co., 232 111. 473; Jones & Adams Co. vs. George, 227 111. 64; Merrill vs. Mich. Cent. E. Co., 158 App. 38; City of Joliet vs. Conley, 119 111. 489; Penn. Co. vs. Keane, 143 111. 172; City of Chicago vs. O'Brennan, 65 111. 160; Cowen vs. E. St. L. Ey. Co., 169 App. 236. Proof of benefits received under policy of accident insurance is incompetent. Con. Coal Co. vs, Shepard, 112 App. 458; Cox vs. City of Chicago, 83 App. 450. ■'■•^'' — Insurance of Defendant: It is not proper for an attorney to directly inform a jury that a defendant is insured against liability, and cannot be permitted to accomplish the same result indirectly in examination of jurors, and must not ask questions tending to inform jury that the defendant is so insured. Mithen vs. Jeffery, 259 111. 372. PEDIGREE See Heirship, Descent and Distribution. Defined : The term pedigree embraces not only the descent and relation- ship but also the facts of birth, marriage and death, and the dates or times when these events happened. Havrick vs. Modern Woodmen, 158 App. 570. Presumptions and Burden of Proof: A child born in lawful wedlock is presumed to be legitimate, and this presumption is not overcome by proof of ante-nuptial conception. Zackman vs. Zackman. 201 111. 380; People vs. Griffin, 142 App. 58S; Smith vs. Henline, 174 111. 184; Drehnan vs. Douglas, 102 111. 341. The fact that one was brought up in the family of persons living together as husband and wife, as their of¥-spring, and was recog- nized as their child by them and others, imposes the burden of dis- proving his right to inheritance upon persons attacking it and claiming to be the lawful heirs. Metheny vs. Bohn, 160 111. 263 ; 111. Land Co. vs. Bonner, 75 111. 315. PEDIGREE 973 Hearsay Evidence in General: Pedigree and family history may be proven by hearsay evidence. Havrick vs. Modern Woodmen, 158 App. 570; Savage vs. Luther, 1G5 App. 1; Modern Woodmen vs. Graber, 128 App. 585; Cuddy vs. Brown, 78 111. 415. The usual rule is that if the declarant is dead, his declarations are not excluded by the fact that living members of the same family can be examined on the same point. In cases of pedigree the hear- say testimony is not confined to ancient facts, but extends also to facts which have recently transpired. Such evidence has been held primary, — admissible on the ground that it is the best obtain- able. Jarchow vs. Grosse, 257 111. 36; Overruling Greenwood vs. Spiller, 3 111. 502. Declarations : — In General: In no case are declarations admissible unless declarant is shown to be dead. Jareliow vs. Grosse, 257 111. 36; Harland vs. Eastman, 107 111. 535; XII 111. Notes 501, § 213. — By Whom Musi he Made: Declarations to establish pedigree must be of members of the family and not of third persons. Champion vs. McCarthy, 228 111. 87. — B elation ship: Where it is sought to reach the estate of the declarant himself, and not to establish a right, through him, to the property of others, his declarations, with reference to his family and kindred, are admissible though the relationship is not shown by other evidence. Jarchow vs. Grosse, 257 111. 36. — By Persons ^¥hose Pedigree Is in Issue: The declarations of the party whose pedigree is in issue, if dead, are admissible to prove his pedigree, if not self-serving, and at all times if disserving. Havrick vs. Modern Woodmen, 158 App. 570; Cuddy vs. Brown, 78 111. 415. — By Relatives of Deceased: May be proven by the decla- rations of deceased's blood relatives, or of husband or wife of the party whose pedigree is in issue, when made ante litem motam. Havrick vs. Modern Woodmen, 158 App. 570; Savage vs. Luther, 165 App. 1; Modern Woodmen vs. Graber, 128 App. 585; Cuddy vs. Brown, 78 111. 415. — By Parent of Deceased: Traditions and declarations of de- ceased parents are admissible. Metheny vs. Bohn, 160 111. 263 ; Chilvers vs. Eace, 196 111. 71. Declarations of the supposed parent and deceased members of his or her family may be proven to establish the parentage where the relationship is illegitimate. Champion vs. McCarthy, 228 111. 87. A declaration claimed to have been made to a witness for the complainant in a partition suit by the father of the witness, to the effect that the complainant and witness were both sons of the declarant, but that they had different mothers, and that a certain woman was complainant's mother, is not admissible to sustain the complainant's claim that he was the illegitimate son of such woman. Champion vs. McCarthy, 228 111. 87. 974 PENALTIES Reputation of Deceased: The oi'diuary rule is tliat it is the general reputation among the kindred of a deceased person that is admissible in proof of death, but this rule has been relaxed in cases where the deceased left no kindred that are known, and in such cases, reputation among the acquaintances of the deceased is sufficient proof of the fact. Einghouse vs. Keever, 49 111. 470. Weight and Sufficiency of Evidence : Wliere title claimed was as children of deceased life tenant, relationship is established by the uncontradicted declarations of the life tenant that they were her children, and by testimony that they had always lived with her during their childhood. Chilveis vs. liace, 196 111. 71. Heirship is sufficiently established where it is shown ancestor came from foreign country; that he had frequently spoken to friends of his relatives; and claimants proved their father lived in same locality; that it was common repute that they had an uncle in America of same name as deceased ; that names of claim- ants ' near relatives corresponded with those of deceased's relatives, so far as he had given their names. Cuddy vs. Brown, 78 111. 415. Competency of Witnesses : The husband of a grandchild will not be allowed to testify to any specific thing which his wife, or her uncle, still living, have said in his hearing, as to death of wife's grandfather, and what heirs survived him ; nor can he be allowed to state his conclusions from such unsworn statements, unless all of them taken together, with their surroundings, enable him to say that such was the ac- cepted state- of the case in the family, or such was the uncontra- dicted repute in the family. Harland vs. Eastman, 107 111. 535. PENALTIES See Intent, Obstructing Highway, Dramshops. BURDEN OF PROOF AND PRESUMPTIONS. In General: — Offense: In prosecution for penalties and forfeitures, the offense must be established by full proof. Eubanks vs. Town of Ashley, 36 111. 177. It is incumbent on plaintiff to prove every step in the chain of facts upon which its right of recovery rests. Bull vs. City of Quincy, 9 App. 127; Newlan vs. Trustees of Aurora, 14 III. 364. All facts necessary to constitute an affirmative case must be set out and proven. No intendments are allowed in favor of the People or of the person for whose benefit the suit is brought. People vs. Fesler, 145 111. 150 ; Gilbert vs. Bone, 79 111. 341 ; Waddle vs. Duncan, 63 111. 223 ; Reinecke vs. People, 15 App. 241 ; People vs. Mut. Ins. Co., 72 App. 568; Whitecraft vs. Vandever, 12 111. 235. — Where License Required: In prosecutions for penalty for doing an act which the statute does not permit to be done by any PENALTIES 975 person except those who are duly licensed therefor, when the act is proven, the burden is on the party to show such license, and negative of the license is not required. Prentice vs. Crane, 234 111. 302; Harbaugh vs. City of Monmouth, 74 111. 367; Chandler vs. Smith, 70 App. 658; People vs. Kolher, 146 App. 541; People vs. Williams, 121 111. 84; Abhau vs. Grassie, 262 111. 636. Intent : The word wilfull as used in the penal statute means not merely voluntary but with bad purpose. Palmer vs. People, 109 App. 269. In proceedings under the statute relating to animals running at large, to impose the penalty, some guilty intention to violate the law, or wilful neglect of the duty imposed must be shown. Bulpit vs. Mathews, 145 111. 345; Palmer vs. People, 109 App. 269. Court says, "A criminal offense consists in violation of a public law in the commission of which there shall be a union or joint oper- ation of act and intention, or criminal negligence. Within this definition, defendant was guilty of no crime. There is an entire absence of proof of wrongful intent or criminal negligence." (Note: Statute does not provide "knowingly, wilfully or inten- tionally.") Storey vs. People, 70 App. 562 ; C. M. & St. P. Ey. Co. vs. People, 132 App. 531. ADMISSIBILITY OP EVIDENCE. In General: Rules applicable to the particular civil action obtain. Maguire vs. Town of Xenia, 54 111. 299; Town of Lewistown vs. Proc- tor, 27 111. 413. Depositions : May be introduced in evidence. I. M. Fire Ins. Co. vs. People, 65 App. 355. In cases of misdemeanors depositions may be taken by consent. Richardson vs. People, 31 111. 170. Defendant as Witness : A witness is not bound to answer any question, either in a court of law or equity, the answer to which will expose him to any penalty, fine, forfeiture or punishment, or which will have a tend- ency to expose him to any penalty or forfeiture, or which would be a link in a chain of evidence to convict him of a criminal offense. Lamsen vs. Boyden, 160 111. 613; Minters vs. People, 139 111. 363. If agent of defendant, over defendant's objections, is required to give answers tending to criminate himself, which he does with- out claiming his privilege, defendant cannot assign error thereon on appeal. N. Y. Life Ins. Co. vs. People, 195 111. 430. Whenever a witness is excused from giving testimony upon the ground that his answer will tend to criminate him or subject him to fines, penalties or forfeitures, he cannot be compelled to produce books or papers which will have the same effect. Manning vs. Securities Co., 242 111. 584; Lamsen vs. Boyden, 160 III. 618 ; People vs. "Western Mfg. Co., 40 App. 428. Pamphlet: AVhere a person is sued in debt for a penalty for practicing medicine without a license, a pamphlet, not supported by testimony. 976 PERJURY- showing the treatment employed by such defendant is incompetent in his behalf. People vs. Trenncr, 144 App. 275. WEIGHT AND SUFFICIENCY. Debt to Recover Penalty: — In General: In an action of debt for the recovery of a pen- alty, more than a mere preponderance of the evidence is necessary in order to authorize a recovery. A. T. & S. F. R. Co. vs. People, 227 111. 270; City of Waverly vs. Goss, 138 App. 68; Gunkel vs. Bachs, 10;5 App. 494; T. P. & W. E. P. Co. vs. Foster, 43 111. 480; XIll 111. Notes 1151, § 14. Proof need not be beyond reasonable doubt. I. M. Mut. Fire Iiis. Co. vs. People, 65 App. 355. — Otstrueting Highway: Clear preponderance of evidence is all that is required. Town of Partridfje vs. Snyder, 78 III. 519; Town of Havana vs. Biggs, 58 111. 483; Town of Lewistown vs. Proctor, 27 111. 413. — Violation of Ordinance: In action to recover penalty or fine for the violation of a town ordinance, it is error to instruct the jury that a preponderance of the evidence, only, is required. Euth vs. City of Abingdon, 80 111. 418. The law does not require the same completeness of proof in actions for penalties that is required in criminal prosecutions ; nor is a mere preponderance sufficient ; but the evidence must be of such a character as to bring home to the jury a reasonable and well- founded belief in the guilt of the defendant,- — a belief upon which they would be willing to act in the more important affairs of life. Sloan vs. People, 108 App. 545 ; Webster vs. People, 14 111. 365. PERJURY INDICTMENT. Jurisdiction : An authority to administer oath must be expressly averred, or in absence of such express averment, such facts must be set out as will make them judicially appear. Hereford vs. People, 197 111. 222; Maynard vs. People, 135 111, 416. And if tribunal is court of limited jurisdiction, it must appear that court was legally constituted and subject matter of inquiry was within its jurisdiction. Kizer vs. People, 211 111. 407. Materiality of Testimony: Must be averred. " Wilkinson vs. People, 226 111. 135. But this need not be by setting out the testimony. It may be done by an express averment to that effect. People YS. Threewit, 251 111. 509; Greene vs. People, 182 111. 278; Pollard vs. People, 69 111. 148; Kimmell vs. People, 92 111. 457; Xril 111. Notes 1154, §§ 11, 12. Corruptly Given: Should allege that the false testimony was corruptly given, and it is not enough to aver that defendant "unlawfully, wilfully and feloniouslv testified," etc. Wilkinson vs. People, 226 111. 135. PERJURY 977 ELEMENTS OF OFFENSE. The witness must have testified corruptly, wilfully and falsely to a material matter in issue, and must have known his testimony to be false when he gave it, and gave such testimony with deliber- ate intention of misleading the court or jury. Young vs. People, 134 111. 37; Coyne vs. People, 124 111. 17. Proof must show that the false testimony was corruptly given, and it is not sufficient to aver that defendant ''unlawfully, know- ingly, wilfuHv and feloniously testified," etc. Wilkinson vs. People, 226 111. 135. If a witness believes that what he testified to is true, and does not know of its alleged falsity, he will not be guilty of perjury. Coyne vs. People, 124 111. 17, While there can be no perjury where accused honestly believes in truth of that which he testified to, the belief must be reasonable and not capricious ; and if in the circumstances a reasonable man could not entertain such a belief, the oath may be regarded as in- tentionally false. Johnson vs. People, 94 111. 505. The fact of a belief on part of accused, in the truth of his testi- mony, is matter for jury, and it is not for court to say that the declarations of accused, upon which he deposes, where not enough to create an honest belief. Johnson vs. People, 94 111. 505. MATERIALITY OF TESTIMONY. Burden of Proof: The evidence must show that the testimony was material to the matter then being investigated, or point in question, before a trib- unal or body authorized by law to investigate, and it devolves upon prosecution not only to affirmatively so state, but also to show its materiality. Wilkinson vs. People, 226 111. 135; Kizer vs. People, 211 111. 407. Question of Law : The materiality of the testimony on which perjury is assigned is a question of law for the court. People vs. Threewit, 251 111. 509; Wilkinson vs. People, 226 111. 135. But it may become a mixed question of law and fact. Young vs. People, 134 111. 43. Effect of Testimony Immaterial: It is the act of false swearing, in respect to a matter material to the point of inquiry, which constitutes the crime, and not the injury which it may have done to individuals, or the degree of credit which was given to the testimony. Effect of testimony alleged to be false is immaterial and will not supply or constitute an equivalent for a want of materiality in the testimony charged to be false. Pollard vs. People, 69 111. 148. ADMISSIBILITY OF EVIDENCE. Regularity of Appointment of Officer : The appointment of officer before whom the testimony is given, cannot be questioned. ^ Hereforrl vs. People, 197 111. 222; Greene vs. People, 182 111. 278. Ev.— 62. 978 PERJURY Ofificial character of the officer administering the oath, may be established by parol evidence of his acting dc facto. Hereford vs. People, 197 111. 222. Testimony Not Assigned: Where alleged that accused did not make certain answers to questions in a particular conversation, evidence that he made Ihe answers at another conversation which was not called to attention of accused on original trial, and with respect to which he did noc testify, not admissible. Kiser vs. People, 211 111. 407. Records of Other Proceedings: Wiiere charge is false swearing in criminal prosecution for con- spiracy to extort money by bringing damage suit, it is error to admit the record of the civil suit, and testimony relating to such suit, and conversations with accused, in no way tending to prove the falsity of his testimony in conspiracy case, upon which indict- ment is based. Wilkinson vs. People, 226 111. 135. Hearsay : On allegation of perjury, on examination touching sufficiency as bail, mere hearsay evidence in respect to large amounts of sup- posed indebtedness against accused, and that he was insolvent, and that there was an incumbrance upon a lot of hay owned b}^ him, which he testified was unincumbered, is error. Pollard vs. People, 69 111. 148. WEIGHT AND SUFFICIENCY. Official Character of Person Administering Oath: In order to warrant a conviction, it is requisite that it be proven that the person before whom the oath was taken, was authorized by law to administer it. Proof of persons habitually acting in that capacity, is perhaps only pnma facie evidence of that fact, and until rebutted, it is sufficient without his producing his appointment or commission. Morrell vs. People, 32 111. 499 ; Van Dusen vs. People, 78 111. 645. On charge of perjury in making an affidavit, the oath being administered by a township assessor to a party being assessed by him, if the proof fails to show that the affidavit was sworn to in the assessor's township, where he alone had power to act, no con- viction can be had. Van Dusen vs. People, 78 111. 645. Fact of Swearing: Where perjury alleged committed before a master in chancery, proof that defendant was sworn as a witness sufficiently establishes, in absence of evidence to the contrary, that a binding oath was administered to him. Greene vs. People, 182 HI. 278. Form of Oath : 4 Immaterial. Greene vs. People, 182 111. 278. Venue : On allegation of perjury in making an affidavit, if the state and county are given in the venue of the affidavit, this is ample evi- PERJURY 979 dence, in absence of contrary proof, to show that the oath was administered in the county named in the venue. Van Dusen vs. Peoiile, 78 111. (545. Testimony on Which Perjury Assigned: — Exact Words: Exact words need not be proven. It is sufficient to prove the substance of them. Martinatis vs. People, 223 111. 117; Hereford vs. People, 197 111. 222. — Two Witnesses: Two witnesses are not necessary to disprove the facts sworn to by defendant. If any material circumstances be proven by other witnesses in confirmation of the witness who gives the direct testimony of perjury it may turn the scale and warrant a conviction. A conviction may be had upon the direct testimony of one witness and proof of declarations of the accused inconsistent with the oath upon which perjury was assigned. Hereford vs. People, 197 111. 222; Mackin vs. People, 115 111. 312; Craudall vs. Dawson, 6 lU. 556. — Sliort-TIancl Reporter: Testimony given by accused may be proven by official reporter of the court who took same, by reading a tj'pe-written transcript of the stenographic notes taken at the trial. Hereford vs. People, 197 111. 222. — Record: If the assignment be of evidence on the trial of a cause, in addition to the production of the record, the previous evidence and state of the cause should be proven or at least so much of it as shows the matter sworn to was material. Wilkinson vs. People, 226 111. 135; Young vs. People, 134 111. 37. — Cross Examination : Perjury may he assigned upon a cross examination only where the testimony in chief is material to the issue, and the cross examination affects the credibility of the wit- ness. And there must be proof from which it can be determined whether the cross examination was in any way material, or even proper in view of the testimony in chief. Wilkinson vs. People, 226 111. 135. — Assignment on Direct: A defendant, on trial on charge of bastardy, was sworn in behalf of prosecuton, and on his examin- ation in chief denied having had any carnal intercourse with pros- ecuting witness. On the next daj, without having been sworn again, he testified in his own behalf, still denying such intercourse, and purjury assigned was in respect to his direct examination. Prosecution was permitted also to prove his denial on the second examination. Held, that while such evidence was not admissible as proof of a substantive crime, no error in admitting it as show- ing that defendant made no retraction during his examination. Maynard vs. People, 135 HI. 416. — Different Assignment: Where there are several distinct assignments upon same testimony, it is sufficient if any one of them be proven. Wilkinson vs. People, 226 HI. 135 ; Hereford vs. People, 197 111. 222. — Particular Instances: Indictment alleged that on examin- ation it became a material question whether prosecutrix and cer- tain man were together at a certain time and place, and that defendant falsely did depose that "on or about" date named, the prosecutrix and such persons were together at such place, making 980 PERJURY the time material. Proof failed to show satisfactorily that defend- ant stated on his examination that prosecutrix and such person were together or on at)ont the date alleged, at place charged, or anywhere else at that date. For this defect in the proof, a judg- ment of conviction was reversed. Roberts vs. People, 99 111. 275, In action of replevin, plaintiff read in evidence a bill of sale from defendant to him, after which defendant proved by a witness that the signature to the bill of sale was not in his handwriting, and thereupon plaintiff had defendant sworn and called him as a witness and asked him whether the signature to the bill of sale was his, and he answered, " No. " Testimony was material and perjury might be assigned thereon. Cronk vs. People, 131 111. 56. IMiere perjury alleged is in giving false testimony before a grand jury upon investigation as to commission of a supposed crime, and the person implicated in its perpetration, it is not necessary for prosecution to prove the crime had actually been committed in respect to which accused falsely testified, in order to show his testimony was material. On an investigation before a grand jury, of an alleged crime, any testimony tending to establish either that such crime was in fact committed, or that it had not been com- mitted, is material, and perjury may be assigned upon the testi- mony of a witness before that body, which is wilfully false m respect to any fact tending to establish or disprove the commission of such a crime. Mackin vs. People, 115 111. 312. In action to foreclose a mortgage for a whole debt declared due by its holder, upon non-payment of interest coupons, testimony in support of a defense that the amount of interest was tendered to complainant is material to the issues, and if falsely given, is perjury. Greene vs. People, 182 111. 278. Where charge is that accused gave false testimony that at a cer- tain time and place named, a person offered to give him a certain amount if he would kill another person, the time, place and amount are material parts of his testimony, as they give strength to the statement of the offer to hire the witness. Henderson vs. People, 117 111. 265. SUBORNATION OF PERJURY. What Constitutes : It is subornation of perjuiy in an attorney to procure false evi- dence knowing it to be false, with intention of deceiving the court. Beattie vs. People, 33 App. 651; Brown vs. People, 145 App. 263. In order to convict of endeavoring to incite or procure another to commit perjury, it must be shown that accused urged the wit- ness to give false testimony, knowing that such witness, as well as himself, was aware of its falsity. It must appear that the witness would have been guilty of perjury if he had given the proposed false testimony, which could not be unless he knew it to be false. If the proposed witness believes what he is asked to testify to is true, and does not know of its alleged falsity, he will not be guilty PHOTOGRAPHS 981 of perjury if he swears to it ; and in such case the person soliciting the witness to so testify cannot be convicted of endeavoring to pro- cure such witness to commit perjury. Coyne vs. People, 124 111. 17. PHOTOGRAPHS See Stereoscopic Views. In General: Photographs stand on the same footing as a diagram, map, plan or model, and a photograph is a legitimate mode of proving condi- tions which can be shown by a representation of that sort. It rests, to some extent, upon the credit of the witnesses in the same way as a map, plat or plan. Henke vs. Deere & Mansur Co., 175 App. 240. The preliminary proof of the correctness and the accuracy of the instrument is addressed to the court, and as a rule its discretion is not subject to exception. C. C. C. & St. L. Ey. Co. vs. Monaglian, 140 111. 474; Henke vs. Deere & Mansur, 175 App. 240; C. & A. Ey. Co. vs. Vipoad, 112 App. 558. Discretion of trial court is subject to review. L. E. & W. Ey. Co. vs. Wilson, 189 111. 89; City of Chicago vs. Hutchinson, 129 App. 239; C. E. I. & P. Ey, Co. vs. Lawrence, 96 App. 635. Mere proof by witness who had never seen photograph until day of trial, that it was a correct and substantial representation, is not sufficient where there is no evidence as to who made the photo- graph or of his skill, the kind of instrument used, or how it was used or that it was a picture of the locus in quo, or when it was taken. Eyan vs. City of Chicago, 181 App. 642. Properly excluded where taken by an amateur and conditions were changed. C. C. C. & St, L. Ey. Co. vs. Monaghan, 140 111. 474. Photographs are not admissible where, for purpose of taking, scene or objects have been arranged by one party, as claimed to exist at time of the occurrence sought to be illustrated. Grant vs. C. & N. W. Ey. Co., 176 App. 292; Ellis vs. Flannagan, 253 111. 397. Jury may take photographs to jury room. Smith vs. Eichelberger, 175 App. 231 ; Williams vs. City of Carter- ville, 97 App. 160. Scene of Accident: — Admissibility in General: As a general rule, in personal in- jury suits, photographs are admissible as evidence. C. & A. E. E. Co. vs. Myers, 86 App. 401 ; City of LaSalle vs. Evans, 111 App. 69; Wabash E. E. Co. vs. Prast, 101 App. 167. Photographs may be received in evidence under certain circum- stances, to assist the jury in understanding the case, provided they are verified by proof as being true representations of the subject. City o"f Chicago vs. Hutchinson, 129 App. 239; City of Chicago vs. Vesey, 105 App. 191. 982 PHOTOGRAPHS Photographs are admissible where scene has not been changed. Sanijjles vs. C. B. & q. By. Co., 233 111. 564. Where it is not shown that photographs lead to or develop any- thing new or strengthen proof, their re.jeetion is not error. Schneider vs.^'Chi. City Ky. Co., 80 App. 306. — Preliminary Proof: Where it is not shown to be a correct representation of place of injury as it was prior to accident and injury, photograph should not be admitted. First Nat'l Bank vs. Miller, 235 111. 135; Iroquois Fur. Co. vs. McCrea, 191 111. 340; XII 111. Notes 513, § 308. It is improper to receive photograph in evidence in absence of clear proof that the conditions at the time of taking were the same as when the accident occurred. Wabash R. E. Co. vs. Farrell, 79 App. 508. Photographs of place of accident taken subsequent to injury are admissible where conditions of place have not changed between time of accident and taking the photograph. C. & E. I. E. E. vs. Lawrence, 96 App. 635. Photographs of crossing where accident occurred, shown by one who took them, and another witness, to be correct view of the place at the time, are properly admissible. Wabash E. E. Co. "vs. Prast, 101 App. 167. — As to Time When Taken: Photographs of scene of accident, taken soon after injury, are admissible where conditions have not changed between time of accident and time of taking photographs, and there is nothing in the photographs themselves or in the evi- dence, tending to discredit them as accurate representations of the scene at the time the injury occurred. L. E. & W. Ey. Co. vs.* Wilson, 189 111. 89. Photographs, notwithstanding they may have been taken a year after the occurrence of transaction which they are offered to parti- ally represent, may be competent to show surroundings, etc., where they are properlv substantiated. C. & E. l! E. E. Co. vs. Crose, 113 App. 547. Photograph of scene of accident, taken nine months afterwards, when the natural surroundings, as shown by the evidence, had changed, is inadmissible. C. & A. E. E. Co. vs. Corson, 198 111. 98. Where photographs offered are shown to be correct representa- tions of the premises where accident happened, except that snow was on the ground at time they were taken, some three weeks after- wards, they are properly admitted. FitzGerald vs. Hedstrom, 98 App. 109. But where at time of accident there was about four feet of snow, which had entirely disappeared when photographs were taken, they were properly excluded. Grimm vs. E. St. L. Ey. Co., 180 App. 92. — Partial View: Photographs of highway and railroad at cross- ing where accident occurred, are admissible even though they do not cover every possible view which might be had thereof, and show only the steep approaches to the crossing and not the level sur- faces of the road at the crossing. 111. Southern Ey. Co. vs. Hayer, 225 111. 613. PHOTOGRAPHS 988 The admission of photographs sliOM'ing in part Uie scene of acci- dent is not erroneous where omitted portion is made the subject of evidence. 111. Southern Ry. Co. vs. Haycr, 128 App. SI.'}. Photosii-aphs of liroken fence boards, the broken boards being in court and offered in evidence, are not admissible. C. M. & St. P. Ry. Co. vs. Kendall, 49 App. 398. — Jury May Talr: A photograi)h of a sich'walh upon which accident occurred, shown to be correct, is properly admitted and may be taken by the juiy to their room when they retire to con- sider their verdict. Williams vs. City of Carterville, 97 App. 160. — Weight: When photographs are pi-operly identified and con- nected with the event which they purport to portray, they are evi- dence of a satisfactory and conclusive nature. City of LaSalle vs. Evans, 111 App. 69. Documents : Photographs which are mere duplicate of documents already in evidence are inadmissible. Howard vs. 111. T. & S. Bank, 189 111. 568. But an enlarged photograph verified and which makes propor- tions plainer, is admissible although original is in evidence. In such case, the enlarged photograph is not merely secondary evi- dence. Howard vs. 111. T. & S. Bank, 189 111. 568. If proper foundation is laid showing that original instrument, bearing a signature, which is to be used in evidence, is out of the jurisdiction of the court, and cannot be obtained, and preliminary proof as to accuracy is made, a photographic copy of the document is admissible. Stitzel vs. Miller, 250 111. 72. A photogi-aphic copy of a forged note is admissible where orig- inal is so faded as to become illegible, on proof that it is an exact copy of the words of the original, when it is not offered to prove the handwriting of the signatures but merely the wording of the note. If material to show that it is an exact similitude with the original with respect to form, shading and coloring, the testimony of an artist or expert might be required. Duffin vs. People, 107 111. 113. Contract by Reference: Where photographs are relied upon to supplement scale draw- ings, they should be identified as a part of the contract or as illustrative thereof, so that there could be no question as to their purpose. Snead Iron Works vs. Trust Co., 225 111. 442. Real Property: A photograph of real estate showing how it existed prior to change in grade of street upon which it is situated is competent. Village of Grant Park vs. Trail, 115 App. 291. But photographs illustrating flood conditions are not admissible in absence of proof as to depth of water, volume and length of time conditions existed. Zinzer vs. Sanitary District, 175 App. 9. 984 PHOTOGRAPHS Rooms: In contest of will, where it is claimed will was signed by wit- nesses so as to be beyond range of vision of testatrix, a photograph of the room, taken some time after death of testatrix, with the furniture of the room arranged by a person present at time of at- testation, assisted bv an incompetent witness, is inadmissible. Ellis vs. Flanagan, 253 111. 397. Machinery : Photographs taken by an experienced photographer a few hours after accident, where no change in immediate surroundings, are admissible. Henke vs. Deere & Mansur Co., 175 App. 240. Photographs of similar machinery of same make are admissible where proof shows them to be fair representations of the machine on which the accident occurred. Smith vs. Eichelberger, 175 App. 231. Persons : Photographs taken after death of person, and tintype of per- son alleged to be the insured, are admissible on issue of identity as to person taking examination for life insurance. Schwartz vs. Berkshire Life Ins. Co., 91 App. 494. • Photographs of injured person, taken soon after injury, and shown by the testimony to be correct representations of such party as he appeared at the time, are competent. Peoples Gas Light Co. vs. Amphlett, 93 App. 194. Admitting, in action for personal injuries, a photograph of plain- tiff taken nine years before trial, to show good health, held revers- ible error. City of Eoek Island vs. Drost, 71 App. 613. Admitting in murder trial a photograph of deceased, whose identity as person killed was admitted by defendant, is not, of itself, ground for reversal, even though the evidence is unnecessary^ and might properly have been excluded. Eoberts vs. People, 226 111. 296. Articles : Not error in excluding, where article itself is introduced. Chi. Mil. St. Ky. Co. vs. Kendall, 49 App. 398. Of Injury: Photograph of injuries is admissible in evidence. Fuller vs. Kelso, 163 App. 576. Thought it may tend to excite sympathy. Peoples Gas Light Co. vs. Amphlett, 93 App. 194. To Show Injury: — Admissibility in General: Photographs taken by the X-ray process are admissible in evidence after proper preliminary proof of their correctness and accuracy has been made. C. & J. Elec. Co. vs. Spenee, 213 111. 220; Hayviood vs. Bering Coal Co., 145 App. 506; Eckles vs. Boylan, 136 App. 258; XII 111. Notes 510, § 279. Wliere X-ray photograph of injured member has been admitted, an X-ray photograph of a normal like member, though of another person, is admissible. Mcllwain vs. Gaebe, 128 App. 209. PHYSICAL EXA:\[TNATI0N 985 — Preliminary Proof: AVliero witness testified that he is a physician and surgeon of experience in practice of his profession and in making of X-ray photographs; that he was competent to make same ; that he made the original negatives and prints, and that they are correct representations of what they purport to he, it is sufficient preliminary proof to authorize their admission in evidence. Chi. aty Ey. Co. vs. Smith, 226 111. 178. So where expert testifies he was an X-ray expert and regularly engaged in taking such photographs for pliysicians; that he took the negative from which the photograph was developed and it was an accurate and correct representation is sufficient. C. & J. Elec. By. Co. vs. Speiice, 213 111. 220. A witness properly qualifies as an expert in taking of X-ray pictures where she testifies that she is superintendent of the dis- pensary of a medical school, that part of her work consists in tak- ing X-ray pictures, that she had had one year's experience, and that she had taken about five hundred pictures. Krauss vs. Ballinger, 171 App. 534. A prima facie showing sufficient to justify the admission of an X-ray picture in evidence is made when expert testifies she made the exposure, developed the negative and printed the picture there- from, and that the picture is a correct representation of the negative. Krauss vs. Ballinger, 171 App. 534. — Result of Ohscrvation by Experts: A witness who has quali- fied as an expert in the use of an X-ray and fluoroscope may be permitted to give result of his observations. Colesar vs. Star Mining Co., 255 111. 532; McCauley vs. Chi. City Ey. Co., 163 App. 176; Judejko vs. Chi. City Ey. Co., 166 App. 140. — Weight: A skiagraph is by no means conclusive as to con- ditions of actual injury. The skiagraph is not a picture of the object or substance itself, but of the shadow merely which is east by the object or substance, and is frequently inaccurate and mis- leading, owing to the divergence and distortion. Kruger vs. McCanghey, 149 App. 440. — Jury May Take: Photographs or skiagraphs given in e\'i- dence may be taken by the jury to their room upon retirement to consider their verdict. C. & J. Elec. Co. vs. Spence, 213 111. 220. PHYSICAL EXAMINATION See Exhibition of Injury. POWER TO ORDER. injury to Person: The court lias no power to require the injured party to submit to an examination by medical experts. Pronskevitch vs. C. & A. E. Co., 232 111. 136; Eichardson vs. Nelson, 221 111. 254; P. D. & E. E. E. Co. vs. Eiee, 144 111. 227; Joliet St. Ey. Co. vs. Call, 143 111. 177 ; Parker vs. Enslow, 102 111. 272 ; P. C. C. & St. L. E. Co. vs. Story, 104 App. 132; XII 111. Notes 39, § 163. 986 PHYSICAL EXAMINATION ADMISSIBILITY OF EVIDENCE. Willingness of Party to Submit : — Right to Question: Plaintiff may be asked as to willingness to submit to physical examination. Jimget vs. A. E. C. By. Co., 177 App. 435; Schlechte vs. Chi. E. T. Co., 157 App. 181; Sertaut vs. Crane, 142 App. 49; Simpson vs. Peoria Ey. Co., 179 App. 307. — Form of Question: "Are you willing to be examined by a doctor appointed either by the court, or by myself, in the presence of your own doctor, as to your present ailment on account of this injury, either here or at your home or at any place that will suit your convenience?" Held proper. Schlecte vs. Ghi. E. T. Co., 157 App. 181. "Are you willing to submit to an examination by physicians to be selected by defendant?" Held improper. Cole vs. E. St. Louis, 158 App. 494; Junget vs. A. E. C. Ey. Co., 177 App. 435; Contra, Sertaut vs. Crane, 142 App. 49. Sustaining objection to question as to whether plaintiff was willing to be examined by a doctor appointed by the court is pre- judicial error. Junget vs. A. E. C. Ey. Co., 177 App. 435. Plaintiff' was asked in presence of jury if he were willing to sub- mit to an examination by physicians appointed by the court. On objection the trisl court ruled defendant might ask him if he were willing to submit to an examination of his left side, left hand and the left side of his head, by physicians appointed by the court, in order that they might show results of their examination. De- fendant refused this offer, and court sustained objection to ques- tions as to willingness to submit his whole body to the examination of physicians in order that they might testify. Held, not error. Gutlirie vs. Empire Coal Co., 150 App. 530. "Are you willing to allow some specialist on nervous diseases, which you claim is your present physical ailment, to make a per- sonal examination of you on behalf of defendant for the purpose of testifving?" Held improper. City of Chicago vs. McNally, 128 App. 375; Affd., City of Chicago vs. McNally, 227 111. 14. Refusal to Submit at Trial: The motion papers requesting examination are not competent. P. C. C. & St. L. E. Co. vs. Story, 104 App. 132. Nor where plaintiff refuses personal examination is evidence com- petent as to whether such examination would be harmful or not. C. & E. I. E. E. Co. vs. Stewart, 104 App. 37; Cf. Schlecte vs. Chi. E. T. Co., 157 App. 181. Refusal to Submit Before Trial: Plaintiff' 's refusal to submit to medical examination by physi- cians selected and chosen by defendant, but in presence of her physicians, held not competent to be shown as admission against I. C. E. Co. vs. Downs, 122 App. 545; Cf., Schlechte vs. Chi. E. T. Co., 157 App. 181. Urine for Analysis : Where plaintiff in a personal injury case claimed to have Bright 's Disease as a result of the injury, and a physician testified in his behalf to finding albumen in plaintiff's urine, plaintiff's refusal to PHYSICIANS AND SURGEONS 987 .. r furnish a sample of his urine for test hy defendant's expierts wlas held proper evidence for the consideration of the jury and its exclusion was error. City of Freei)ort vs. Tsbcll, 93 111. 381. PHYSICAL EXHIBITS See Demonstrative Evidence, Exhibition of Injury, Physical Examination, View by Jury. PHYSICIANS AND SURGEONS See Expert and Opinion, ]\Iedical and Surgical Services, Mental and Physical States, Penalties. ACTION FOR SERVICES. Burden of Proof and Presumptions: Plaintiff must establish contract of employment and rendering of services. Dorion vs. Jacobson, 113 App. 563, One under no obligation to provide or pay for medical attend- ance cannot be held responsible therefor in the absence of a promise to pay, relied upon by the physician. Dorion vs. Jacobson, 113 App. 563. A physician is to be deemed the proper judge of the necessity of frequent visits to the patient, and the court will presume that all the professional visits made by him were necessary. Hence, in an action for his services, he is not called upon to prove the neces- sity of making the number of visits he did. The physician being responsible for the want of care and faithful attendance, a con- trary rule would work great hardship to him and subject him to undue perils. Where a physician is called by a party to heal him or his wife,, and he takes charge of the case and attends from day to day, evi- dently in view of the responsibility for skillful and proper treat- ment' he must, in the first instance, determine how often he ought to visit the patient, and, so long as the party employing him accepts his services and does not discharge him or require him to come less frequently, or fix the times when he wishes him to attend, he cannot afterwards, be heard to say the physician came oftener than was necessary. Ebner vs. Mackey, 186 111. 297; Gibson vs. O'Grara Coal Co., 151 App. 424. When the services are performed on request, and no agreement is made in respect to them, the law raises an implied promise to pay so much as the person performing the duties reasonably deserves to have, and upon such implied undertaking the action will lie. Starrett vs. Miley, 79 App. 658. When a person calls a physician for care of another, rendered by the sudden injury unable to act for himself, and to whom he 988 PHYSICIANS AND SURGEONS stands in no relationship, which creates any obligation to furnish necessary medical aid, and no express undertaking is entered into, the law does not presume from the mere summoning of the physician and requesting him to care for the injured person, any implied promise by the one acting to pay for services of the physi- cian summoned. Starrett vs. Miley, 79 App. 658. In a controversy concerning defendant's liability to pay plain- tiff's bill for services as physician, to a third person, plaintiff testi- fied defendant said to him, ' ' Doctor, you take care of the girls and attend to them and I will pay you for your entire services, for those you have rendered heretofore and what you may hereafter render," and defendant testified that he said, "Give this girl the attention she requires and I will see that she has some money to pay her bills. ' ' It was held that under this evidence the jury were warranted in returning a verdict for services rendered after the conversation. Thomas vs. Leavy, 62 App. 34. Where a surgeon has been employed by a station agent of a rail- road company to attend an employe injured while in service of com- pany, although he may not have express authority to do so, yet slight acts of ratification by the company will authorize a jmy in finding the employment was the act of the company. C. & St. L.*E. E. Co. vs. Mahoney, 82 111. 73. In action to recover fees for medical services, evidence must show same to be customary charge for such services. Weinlander vs. Volkman, 153 App. 137. Family Expense: Medical attendance upon the family is a family expense, and both husband and wife are jointly liable therefor. West Chi. St. Ry. Co. vs. Carr, 170 111. 478; Yoimkm vs. Essick, 29 App. 575. Bill of physician for services rendered at request of the husband to himself in his last illness is a family expense for which an action will lie against the widow to charge her separate property. Cole vs. Bentley, 26 App. 260. Wife is liable for services rendered family by physician although charged on plaintiff's books to her deceased husband. Glaubensklee vs. Low, 29 App. 409. DEFENSE. Right to Practice : — Presumption: In suit for professional services, a license or due qualification under the law will be presumed. Co. of Jo Daviess vs. Staples, 108 App. 539 ; Good vs. Lasher, 99 App. 653; City of Chicago vs. Wood, 24 App. 40; Cf., Tichenor vs. NewTTian, 186 111. 264; N. Chi. St. Ey. Co. vs. Cotton, 140 111. 486; Byrne vs. Panesi, 77 App. 164; XIII 111. Notes 1163, § 27. — When Not Material: The fact that a physician and surgeon is not licensed to practice in Illinois is not material where the action is predicated upon notes given for services rendered. Brunswick vs. Hurley. 131 App. 235. — What Sufficient to Shoiv Bight: Wliere physician suing for fees testified without objection that he was a physician of twenty PHYSICIANS AND SURGEONS 989 years practice and a graduate of a medical institution, etc., the defendant cannot urge upon appeal that judgment should be re- versed because of failure to allege and prove he was a licensed phy- sician and surgeon with his license duly recorded as required by law. Dorion vs. Jacobson, 113 App. 563. "Physician testified without objection that he had practiced for a number of years, that he had a certificate as required by State Board. It was shown that his name appeared on register of phy- sicians in county clerk's office. This is enough as against defend- ant, who called him and thereby recognized his right to exercise functions of his profession. ' ' C. & A. E. Co. vs. Smith, 21 App. 202. And question of license cannot be raised for first time on appeal, Hudson vs. Madison, 75 App. 442. Contract of Corporation: A contract by a coal company for the services of a physician to treat one of its employes while w^orking in its mines, is not ultra Gibson vs. O'Gara Coal Co., 151 App. 424. The burden of proof is upon party pleading ultra vires. Gibson vs. O'Gara Coal Co., 151 App. 424. RIGHT TO PRACTICE Criminal Prosecution: In case of prosecution and behalf of the public, license or due qualification is not presumed, and it rests with defendant to prove same. Williams vs. People, 121 111. 84; People vs. Koehler, 146 App. 541. As Between Third Persons: Between third persons, the question of the physicans's quali- fications, arising onlj- collaterally, his right to practice is presumed. It being shown that he is a physician and surgeon by profession and that he had practiced in the state for a length of time, is prima facie, at least, to establish the proper qualification. Chi. St. Ey. Co. vs. Cotton, 140 111. 486; City of Chicago vs. Wood, 24 App. 40. — Purchaser of Medical Practice: The purchaser of a medical practice may sue for damages for breach of seller's undertakings Avithout showing affirmatively that he had a license from State Board of Health to practice medicine in Illinois. Tichenor vs. Newman, 186 111. 264. MALPRACTICE. Burden of Proof: Burden is upon plaintiff to show want of ordinary skill and dil- igence and to show that injury resulted from a failure to possess these requisites. Goodman vs. Bigler, 133 App. 301; MeKee vs. Allen, 94 App. 147; Chase vs. Nelson, 39 App. 53; XIII 111. Notes 1162, § 20. So burden is upon plaintiff to show that injury did not result from his disobedience of instructions as shown by evidence to have been given by phvsician. Mcllwain vs. Gaebe, 128 App. 209. 990 PLATS Admissibility of Evidence : Evidence relative to payment of defendant for services is irrele- vant. Mcllwain vs. Gaebe, 128 App. 25. Physician may be asked whether he exercised his best knowledge and skill. Fisher vs. Niceolls, 2 App. 484. But an expert cannot be asked whether or not defendant has been guilty of malpractice. Hoeiner vs. Koch, 84 111. 408. The professional skill of the defendant is put in issue and the burden of proof is upon plaintiff to show w^ant of it. The only proper way of showing this is by proof that he did not exercise it in the treatment of the plaintiff, and the possession or want of proper skill can not be proven by general reputation. Nor is evi- dence admissible on behalf of defendant to prove his reputation in the community and among the profession, as being a skillful and learned physician. Hoitzman vs. Hoy, 118 111. 534. Affirmative proof of negligence or lack of skill and that injuries complained of resulted therefrom, is usually, and. especially in eye cases, can only be made and established by the testimony of experts skilled in the medical profession and cannot be made by lay wit- nesses. Phebus vs. Mather, 181 App. 274, The recovery of a judgment before a justice of the peace for the fees of a physician for services in attending a woman does not bar a suit by the woman for malpractice, where she did not appear before the justice and attempt to defeat the claim for fees by set- ting up such malpractice. Barton vs. Southwiek, 258 111. 515. Weight and Sufficiency of Evidence : The jury cannot draw the conclusion of unskill fulness from proof of the result of the treatment. That the treatment was improper must be shown by affirmative evidence. Phehiis vs. ]\lather, 181 App. 274; Doyle vs. Owen, 150 App. 415; Sims vs. Parker, 41 App. 284; M'oline vs. Chresty, 180 App. 334. PLATS See Diagrams, Surveys, Field Notes and Monuments, Bound- aries. Recording : Since the presumption always is that public authorities do their duty, it will be presumed, until contrary is shown, that a plat was correctly copied in the public records. City of Peoria vs. C'ont. Nntl. Bank, 224 111. 43. Admissibility of Certified Copies: — Certified hy Surveyor: A plat certified by the surveyor, acknowledged by the owners of the land, and recorded in com- pliance with the statute, is admissible, notwithstanding the surveyor PLATS 991 testifies he did not make the survey, but does not deny making the certificate. Allmendinger vs. McHie, 189 111. 308. — Impeachment of Certificate: A surveyor is not a competent witness to impeach his own certificate to a plat. Allmendiuger vs. Mc-Hie, 189 111. 308. — Certified by Recorder: A certified cop}' of a plat shown by the testimony of abstractors and surveyors to be correct, is properly admitted upon proof that the proper custodian of the original plat had searched for the same in the vault where plats were kept, and in all places where it would likely be found, without success. McDonald vs. Stark, 176 III. 456. But such copy is not admissible where no proof is made that the original plat was not within the control of the parties. People vs. Wiemers, 225 111. 17. Nor is it admissible where there is no evidence to show original plat was made by authority of owner of premises, nor signed or acknowledged by him but merely has the surveyor's certificate ex- planatoiy of the diagTam. Dale vs. Metzmaker, 63 111. 38, Admissibility of Plat to Aid Deed: ^\liere a conveyance refers to a plat, such plat becomes a j^art of the conveyance just as if it had been copied into the deed, and is regarded as furnishing the true and correct description of the di- mensiojis and boundaries of the land. Bead vs. Bartlett, 255 111. 76; People vs. New, 214 111. 287; XII 111. Notes 106, § 100. And such plat is admissible to identify and locate lot or premises. Black vs. C. B. ic Q. R. E. Co., 237 111. 500; Maun vs. Bergmaun, 208 111. 406; Allmendinger vs. McHie, 189 111. 308; Prouty vs. Tilden. 164 111. 163. Admissibility to Show Common Law Dedication: The making of a plat laying off the land into lots and blocks, separated by streets and alleys, and the sale of lots thereafter by the owner, is evidence of a common law dedication of the streets to the public, even though plat is not execnted in conformity with statute. Nelson vs. Eandolpli, 222 111. 531; Maywood vs. Maywood, 118 111. 61; Gosselin vs. City of Chicago, 103 111. 623; Alvord vs. Ashley, 17 111. 363. So where a plat of a city does not contain a statement of the width of a street and is in other respects defective as statutory proof of a dedication at common law, supplemental evidence tending to explain it and to show a dedication at common law is competent. Hudson vs. Miller, 97 App. 74. Admissibility to Show Streets: Books and memorials kept by public officers, even though not required by statute, if they are necessary and appropriate to the discharge of the duties of the office, are considered as public records. So county plat books, though prepared without any authority of law, but where kept for a long period of time, are admissible to show existence or non-existence of streets. Watts vs. Village of River Forest, 227 111. 31. 992 PLEDGE So a plat attached to a petition for public improvement may be admitted to aid in location of description of part of street to be im- proved. Nieholes vs. People, 171 111. 376. Admissibility of Secondary Evidence: Where preliminary proof shows that proper search was made by the proper custodians of the original plats, in the vault where they were kept, and in all places where they would likely be found, and such search was unavailing, secondary evidence of plats is admis- sible. McDonald vs. Stark, 176 111. 456. Explanation of Plat : A survey may be admitted in evidence in explanation of a plat. Wiggins Ferry Co. vs. Louisville R. E. Co., 178 111. 473. As Explanatory Evidence: Explanatory maps, plats and diagrams may be introduced in connection with the testimony of witnesses in verification thereof. Prussner vs. Brady, 136 App. 395 ; Chi. City Ey. Co. vs. McLaughlin, 146 111. 353; Brown vs. Galesburg, 132 111. 648. The diagrams, drawings or models are not introduced as evi- dence in themselves, but for the purpose of enabling the jury to understand and apply the evidence in the case. Reinke vs. Sanitary District, 260 111. 380. Plats, maps and gauge readings from the official records of the War Department are competent but not conclusive evidence. Harney vs. Sanitary District, 260 111. 54. (See Diagrams.) PLEDGE Defined: A pledge is a lien created by the owner of personal property by the mere delivery of it to another, upon an express or implied understanding that it shall be retained as security on an existing or future debt. If the pledgee is in possession of the thing pledged, though for another purpose, the pledge becomes effectual without further delivery. Farson vs. Gilbert, 114 App. 17. Presumption : — Delivenj of Note of Third Person to Creditor: The pre- sumption is that it was not the intention of the parties that it should operate as an immediate and absolute satisfaction and dis- charge of the debt, and that nothing short of an actual agreement or some evidence from which a positive inference of discharge can be made, will suffice to produce such an effect ; and that it is the general principle that the acceptance of collateral security has no effect whatever on the legal rights and liabilities of the parties, as respects the original debt, either to impair or suspend the right of action. Wilhelm vs. Schmidt, 84 111. 183. PLEDGE " 993 The taking of note of a third person for a pre-existing debt is no payment unless proof shows express agreement to take the note as payment. S. & G. Co. vs. Gates, I. W., 124 111. 623; Wilhelm vs. Schiiiidt, 84 111. 183; Chisholm vs. Williams, 128 111. 115. The question of payment is one of fact. Tyler vs. Hyde, 80 App. 123. Delivery : — In General: A pledge, strictly speaking, can only be made by delivery. i • Atkinson vs. Foster, 134 111. 472 ; XIV 111. Notes 62, § 6. Actual or symbolical possession of personal property in the pledgee is essential to its pledge. Ordinarily, actual and physical possession of the property is delivered to and retained by the pled- gee, but may be by symbol, e. g., bill of lading or warehouse re- ceipt, but it is a necessary condition to the existence of such symbolical possession by tbe pledgee and it nuist be shown that the property itself is in the possession of some person or corpo- ration other tlian pledgor. Union Trust Go. vs. Trumbull, 137 111. 146. If it be shown that wdien property Avas pledged it was in posses- sion of pledgee, it w\\\ render the pledge effectual. Paisous vs. Overmeyer, 22 111. 58; Farson vs. Gilbert, 114 App. 17. — Chose in Action: "Incorporeal property, such as negotiable instruments, stock in incorporated companies, and choses in action g'enerally, is capable of being pledged by written transfer of the title. Such transfer of the title performs same office as delivery of possession does in case of a pledge of corporeal property. The transfer of title in writing constitutes the evidence of pledgee's right of property in the thing pledged. And it seems to be almost the universal decision that, technically speaking, incorporeal prop- erty is incapable of being pledged wdthout written transfer of title or its equivalent." Eioe vs. Gilbert, 173 111. 348. Written Transfers: — Parol Evidence: While a transfer of stock, absolute in form, may be shown by parol evidence to be really a pledge to secure a debt, yet when that kind of evidence is relied upon, it should be clear and convincing. Travers vs. Leopold, 124 111. 431. Parol evidence is not admissible to contradict a contract of pledge, such as a statement in a promissory note that certain stock had been transferred as collateral security. Fairbanks vs. Merrhants Nat'l Bank, 132 111. 120. The particular contract is to govern the rights of the parties. Union Brew Co. vs. Interstate Bank, 240 111. 454. Defense to Collateral Note: The holder of a note indorsed as collateral security, not being protected except as to amount of debt secured, it follows that in suit on the note, evidence tending to show that maker is not liable to payee upon the note is admissible. In action on a note by a party who has received same as col- lateral securitv for a debt, the current of authorities is in favor Ev.— 63 994 POSITIVE AND NEGATIVE of the rule reqiiiring the maker, when sued, to show the amount of the debt secured. Gammon vs. Huse, 9 App. 557. POLICE RECORDS Admissibility : An entry in an accident book kept by the police at a station near the place of injury is not admissible in an action for damages for such injury where the entry is not made at the time of the acci- dent, by witnesses thereof, but from reports of police made from hearsay. Penn. Co. vs. McCaffery, 173 111. 169. Record of charge on which persons were booked at police station is inadmissible in prosecution for keeping disorderly house. People vs. Newbold, 260 111. 196. POSITIVE AND NEGATIVE See Negative in Issue, Burden of Proof, Intestacy, Marriage, Presumptions. Positive Defined: Evidence is positive when a witness states that an event did or did not occur. Frizzel vs. Cole, 42 111. 362 ; C. B. & Q. K. Co. vs. Saeh, 136 App. 425; XII 111. Notes 534, § 465. Wliere a witness swears that a partieular act did occur at a specified time and place, or that a particular language was spoken by a person to whom he refers, this is affirmative evidence. But if another witness were at the same place, at the same time, and should swear that he did not observe the act, or hear the language of- which the other speaks, this would be called negative evidence. But suppose the latter witness were to state that his attention was fully excited to what occurred and what was said, and that the act of which the other spoke did not occur, or that the language was not usod by the person to whom it was attributed, this would be as fully affirmative evidence as the other. Frizzel vs. Cole, 42 111. 362. Where witnesses having equal opportunity with others testify- ing to the contrary, to hear and know whether or not a gong was sounded, testify that it was not, their evidence is deemed affirm- ative. Chi. Con. Trac. Co. vs. Gervens, 113 App. 275; Grabill vs. Een, 110 App. 587. Where two classes of witnesses are of equal intelligence, and have equal opportunities of knowing the fact, and their attention has been directed to it, then, although one testifies that the occur- rence did take pace, and the other that it did not, the latter testi- mony is not to be treated as negative. West Chi. St. Ry. Co. vs. Mueller, 165 111. 499; E. R. I. & St. L. Ey. Co. vs. Hiilmer, 72 111. 235; C. & A. Ry. Co. vs. Pelligreen, 65 App. 333; Chi. Cou. Trac. Co. vs. Gervens, 113 App. 275. POSITIVE AND NEGATIVE 995 ''The witnesses who testified that, in their opinion the deceased was sane ; the witnesses who testitied that, in their opinion, he lacked testamentary capacity ; the witnesses who testified to facts and circumstances from which an inference of mental unsoundness might be drawn ; the expert witnesses who testitied, in response to hypothetical questions that he was sane, and the expert wit- nesses who testified, in response to hypothetical questions, that he was of unsound mind, were all witnesses who gave affirmative or positive evidence." Dillman vs. McDanicl, 222 111. 291. If witnesses with proper opportunities of knowing, being faith- worthy, state positively that an individual did not strike, a blow, it is not negative proof, and is as much entitled to weight as the affirmative testimony of others who state that they saw him strike the blow. Couglin vs. People, 18 111. 266. Putting the form of a statement in the affirmative, as that wit- nesses did see a government mound or ditch at a certain place, does not necessarily make the testimony stronger than that of a witness who avers in the negative form that he did not see a mound or ditch at the point in question. If it is proven that both saw the same point at the same time, the latter, in effect, may aver as conclusively, though in the negative form of sentence, that there is no mound or ditch there, as the former avers there is. Eockwootl vs. Poundstone, 38 111. 199. Where one witness swears an agent of railroad company pur- chased wood for the company, and the agent swears he did not, there is no negative testimony by either witness. Testimony of witness that he did not make the purchase is as much positive as if he had testified he did. G. W. Ky. Co. vs. Hanks, 25 111. 241. Where witnesses, with attention directed to the fact, testify pos- itively that no bell was rung or whistle sounded until instant of collision, their evidence is not negative in its character. C. B. & Q. Ey. Co. vs. Lee, 87 111. 454. Preference the law gives positive over negative is when one swears positively that a thing happened, and anothers swears he did not see or hear it, it being quite possible that it may have happened although the other may not have seen or heard it. Frizzell vs. Cole, 42 111. 362. Admissibility of Negative Testimony: — In General: A party establishing his claim or defense is not restricted to either circumstantial or positive evidence, but may avail himself of either or both at his election. Union Natl. Bank vs. Baldenwick, 45 111. 374: Duffield vs. Delancy, 36 111. 258. Evidence of witnesses working nearby that they did not hear warning is admissible. Eblin vs. Amer. Car Co., 238 111. 176. Whether evidence of this character be admissible depends largely if not entirely upon the circumstances of each case. Lyoas vs. Chicago City Ky. Co., 258 111. 75. 996 POSITIVE AND NEGATIVE Where it is in proof that certain instructions were given employe, a number of times, about getting out of way of trains, it is im- proper to permit other witnesses to testify they were never given such instructions. « 1" C. & N. W. Ey. Co. vs. Moranda, 108 111. 576. Nor is evidence admissible to show negligence at a dilferent time and place. Sugar Creek Co. vs. Peterson, 177 111. 324. Evidence that defendant's conductor made no report of acci- dent is inadmissible. W. Chi. St. Rj. Co. vs. Lieserowitz, 197 111. 007. Wliere grantee in deed is alleged to be fictitious person, testi- mony is competent to show that no such person lived in locality claimed. Phelps vs. Nazworthy, 226 111. 254. — As to Signals: Testimony that witnesses did not hear the locomotive bell ringing, although they did not know definitely whether it was ringing or not, is admissible upon question of ring- ing of the bell. C. & A. R. R. Co. vs. Pulliam, 208 111. 456. — Witness May State He Would Have Heard: Persons who state their location and their previous experience in noticing and hearing railroad bells and whistles are competent to testify that if bell had been rung or whistle sounded at time of accident, they would have heard it. Farley vs. Wabash R. R. Co., 153 App. 493; E. J. & E. R. R. Co. vs. Reese, 70 App. 463; C. & A. R. R. Co. vs. Dillon, 123 111. 570. — Means of Knoivlcdgc: It is proper to inquire of a witness if certain conditions existed or persons present, whether he would have known it. Penn. Co. vs. Bovlan, 104 111. 595; P. C. C. & St. L. R. R. Co. vs. Story, 104 App. 132; Barnett vs. Chi. City Ry. Co., 167 App. 87. Weight : — General Ride : "Where Avitnesses are equally credible, positive testimony is entitled to greater weight than negative. C. & A. R. R. Co. vs. Robinson, 106 Til. 142; C. B. & Q. R. R. Co. vs. Diekison, 88 111. 431; C. & A. R. R. Co. vs. Gretzner, 40 111. 74; 111. Sou. R. R. Co. vs. Hamell, 128 App. 152; C. R. I. & P. R. R. Co. vs. Jones, 135 App. 380; C. B. & C^. R. R. Co. vs. Sack, 136 App. 425; Hauk vs. Peoria Ry. Co., 154 App. 473; XII 111. Notes 534, §465. Positive evidence as to the fact that a bell was rung or a whistle sounded or of any other fact not improbable in itself, is entitled to more weight than negative evidence in relation to such facts. C. B. & Q. R. R. Co. vs. Stumps, 55 Til. 367; C. R. I. & P. R. R. Co. vs. Still, 19 111. 500; Hauk vs. Peoria Rv. Co., 154 App. 473; C. & E. I. R. R. Co. vs. Eganoff, 112 App. 223. — Opportunity: More weight will often be attached to the question whether witnesses are in so favorable a position for observ- ing a fact if it occur, that it could not have occurred without their observing it, than to the affirmative or negative form of their testimony. billman vs. McDaniel, 222 111. 291 ; C. B. & Q. R. R Co. vs. Cauff- mann, 38 IIJ. 424; Rockwood vs. Poundstone, 38 111. 199. POSSESSION 997 — ■Circumstances May Be Considered: "While the unreasonable- ness or absurdity of a line of conduct, or of acts claimed, is not sufiicient to overcome positive evidence that the line of conduct was pursued or tliat the acts were done, yet, if the evidence be so imperfect or conflicting that the truth cannot be clearly perceived, the unreasonableness or absurdity of what is claimed to have been the conduct or acts of the parties may W of controlling- importance. Kuowles vs. Knowles, 86 111. 1; Parkiu vs. C. P. & St. L. Ey. Co., 149 App. 421. — Want of Recollection: The statements of a witness that he does not remember having an alleged conversation with another, will not be regarded as a contradiction of the affirmative testimony of the latter that such conversation was had. VanPelt vs. Hutchinson, 114 111. 435. POSSESSION See Payment, Title, Trespass, Trover^ Ejectment, Owner- ship, Cloud on Title. Presumptions : — Chattels Generallij: Party in possession of personal property is presumed to be the owner of it, possession being one of the strongest evidences of title to personal property. Gilbert vs. Natl. Cash Kegister, 176 111. 288; Comer vs. Comer, 120 111. 420; Peters vs. Smith, 42 111. 417; Bergen vs. Eiggs, 34 111, 170; Eoberts vs. Haskell, 20 111. 59; Downey vs. Arnold, 97 App. 91. Likewise possession of agent. Barton vs. People, 135 111. 405. When possession and ownership are shown to exist they are pre- sumed to continue but are not presumed to have existed back of the time they were proven to have existed. Eengel vs. Schoden, 178 App. 151. — Negotiable Instruments: Possession of a negotiable instru- ment is prima facie evidence of ownership by the possessor. Kavanaugh vs. Bank of America, 239 111. 404; Henderson vs. Danis- son, 157 111. 379; Brownell vs. Dixon, 37 111. 198; Henry vs. Eddy, 34 111. 508; Burnap vs. Cook, 32 111. 168. When a note past due is in the hands of the maker, the law will presume from this fact alone, unexplained, that it has been paid. Shippen vs. Whittier, 117 111. 282; Zimpleman vs. Deeder, 80 111. 614; Walker vs. Douglas, 70 111. 445; Teeter vs. Poe, 48 App. 158. But the presumption does not arise where the debtor had the means of obtaining possession of or cancelling obligation other than by paying it. Grimes vs. Hilliary, 150 111. 141 ; Teeter vs. Poe, 48 App. 158. Possession of mortgage by mortgagee is prima facie evidence of ownership of notes secured. ^ , ^ , ^ m Mantonya vs. Outfitting Co., 172 111. 92 ; Morris vs. Cat. Dock Co., 91 App. 437. 998 POSSESSION The possession of a promissory note in the hands of the payee, unexplained, is prima facie evidence that it has not been fully paid. Lewis vs. Lewis, 150 App. 354; Kitter vs. Schenk, 101 111. 387; Stuiu- baugh vs. Hallam, 48 111. 306. Where an attorney, bringing a suit upon a promissory note, produces same at the trial, this, of itself, affords a strong presump- tion of his authority to sue upon it. Eeed vs. Curry, 35 111. 536; Williams vs. Butler, 35 111. 544. — Title to Real Property: It is presumed that a claimant of property who is in possession, holds the title thereto. Glos vs. Huey, 181 111. 149; Harland vs. Eastman, 119 111. 22. In an action to quiet title, proof of possession under claim of ownership, is prima facie evidence of such ownership in the claim- ant so in possession. Euppe vs. Glos, 243 111. 414; Glos vs. Huey, 181 111. 149. — Continuance of Possession of Peal Property: On proof of a person's possession of land at a particular time, there may be a presumption of a continuance of such possession thereafter, but not of prior possession. Glos vs. Kemp, 192 111. 72; White vs. White, 105 111. 313. Where a party in possession of land conveys same, in absence of proof to contrary, it will be presumed that the grantee continued in the possession of same as the grantor had done before. Shell vs. German Coal Co., 139 111. 21. — Corporate Stock: Possession of stock certificates, endorsed in blank, is prima facie proof of ownership. Coffey vs. Coffey, 179 111. 283. — Delivery of Deeds: Where a deed duly executed is found in the possession of the grantee named therein, it is presumed to have been properly delivered. Spencer vs. Eazor, 251 111. 278; Schroeder vs. Smith, 249 111. 574; Inman vs. Swearingen, 198 111. 437; Dunlop vs. Lamb, 182 111. 319; McCann vs. Atherton, 106 111. 31. — Of Stolen Property: The possession of property recently stolen is prima facie evidence that the person in possession com- mitted the theft. The rule in regard to possession of stolen property immediately after the theft being evidence of guilt applies in cases of burglary as wtII as cases of larceny. People vs. Everett, 242 111. 628; People vs. Deluce, 237 111. 541; Williams vs. People, 196 111. 173; Magee vs. People, 139 111. 138; Langford vs. People. 134 111. 444; Smith vs. People, 103 111. 82; Sahliuger vs. People, 102 111. 241 ; Comfort vs. People, 54 111. 404. But possession of stolen property immediately after the theft, in order to be prima facie evidence of guilt, must be exclusive and such as to indicate that the possessor took the property. And if the place where the goods were foujid was accessible to others cap- able of stealing, the inference cannot be drawn, though the fact is entitled to consideration in connection with other facts in the case. The presumption arising from the possession of recently stolen property may be overcome by the proof of any facts incon- sistent with the theory of guilt, such as the good character of the accused, or his conduct at the time he was found in possession. The presumption of guilt which arises from the possession of PRESCRIPTION 999 goods recently stolen may be rebutted by an explanation or account given by the accused as to how he acquired the possession. And the burden is not upon accused to satisfactorily explain such recent possession. Miller vs. People, 229 111. 376; Watts vs. People, 204 111. 2.33; Conkwright vs. People, 35 111. 204; Cf., Padfield vs. People, 14U 111. (360. Admissibility of Evidence: — Real Property: Where a party is in the actual possession of a part of a tract or a piece of land, claiming to be the owner of it, the paper title under which he claims is evidence of the extent of his possession. Poole vs. City of Lake Forest, 238 111. 305. The nature of one's possession may be as well characterized by his acts as by oral declarations. It is not essential that there should be proof that the party in possession made oral declarations of claim of title, but it is sufficient if the proof shows that he has so acted as to clearly indicate that he did claim title. No mere words could more satisfactorily assert a claim of title than a continued exercise of acts of ownership over the property. Using and con- trolling property as owner is the ordinary mode of asserting a claim of title, and it is the only proof of which a claim of title to a very large proportion of property is susceptible. Lyons vs. Stroud, 257 111. 350 ; Kich vs. Naffziger, 248 111. 455. A witness may be asked who was in *'the possession" and who was "in control" of premises. Any inference necessarily involv- ing certain acts may be stated without the facts, when the inference is equivalent to a specification of facts. Control is a statement of collective facts involving management and acts of ownership. If it is desired to know on what witness founded his conclusions of facts, such inquiry may be made. Knight vs. Knight, 178 111. 553; Fisher vs. Beimehoff, 121 111. 426. Transfer of possession may be proven by parol. Eich vs. Naffziger, 255 111. 98; Weber vs. Anderson, 73 111. 439. — Personal Property: Party may prove acts of his own tend- ing to show character of claim after he took possession as owner. Martin vs. Duncan, 181 111. 120. PREJUDICE See Bias and Hostility, Credibility, Cross Examination. PREPONDERANCE See Evidence, Penalties, Reasonable Doubt, Weight and Sufficiency, Reformation of Instruments. PRESCRIPTION See Dedication. 1000 PRESUMPTIONS PRESUMPTIONS DEFINED. Presumptions are inferences which common sense draws from the known course of events, or from circumstances usually occur- ring in such cases. Sears vs. Vaughn, 230 111. 572; Merchants Bank vs. Nichols, 123 App. 430; XII 111. Notes 476, §23. Presumptions are inferences as to the existence of facts drawn from existence of some other fact. Garner vs. Chi. Trac. Co., 150 App. 149. Legal presumptions are rules estahlished hy the common law or statute, and are founded upon the first principles of justice or the laws of nature, or the experienced course of human conduct and affairs, and the connection usually found to exist between certain things. Where one fact is proven or ascertained, another, its uniform concomitant, is universally and safely presumed; it is this uni- formly experienced connection which leads to its recognition by law, without other proof. Many of these presumptions are con- clusive because they have been found to be so general and uniform as to render it expedient for the common good and this connec- tion should be taken to be inseparable and universal. They have been adopted hy common consent from motives of public policy, for the sake of greater certainty, and the promotion of the quiet and peace of community, and therefore, all opposing evidence is forbidden. McCagg vs. Heacock, 34 111. 476, EFFECT. A presumption of fact has the force and effect of a prima facie ease and relieves temporarily the party in whose favor it arises from presenting further evidence. It is not evidence of itself but a legal rule or conclusion which may be rebutted directly by evi- dence or shown not to apply to the particular facts in the case. Seilback vs. Grothman, 248 111. 435. Legal presumptions do not shift the burden of proof. Their only effect is to create the necessity of evidence to meet the prima facie case created thereby, and which, if no proof to contrary is offered, will prevail. Helbig vs. Citizens' Ins. Co., 234 111. 251. As a general rule the burden of proof rests upon the party who would be defeated if no evidence at all w^ere offered. Stephens vs. St. L. Union Trust Co., 260 111. 364. The mere existence of a fact wliieh must be affirmatively shown is never presumed from the mere absence of facts showing the negative. Rumbold vs. Eoyal League, 206 111. 513. Primarily, a rebuttable legal presumption affects only the burden of proof, but if that burden is shifted back upon the party from whom it first lifted it, then the presumption is of value only as it has probative force, except it be that on the entire case the evidence is equally balanced, in which event the arbitrary power of the PRESUMPTIONS 1001 presumption of law would settle the issue in favor of the proponent of the presumption. Bradsliaw vs. People, 153 111. 156. Regarded in its evidential aspect, a given presumption of law may have either more or less of probative value, dependent upon the character of the presumption itself, and upon the circumstances of the particular case in which the issue uu\y arise. Some legal presumptions are more probable and inherently stronger than others. So, also, differing circumstances may give differing de- grees of probability to one and the same legal presumption. Graves vs. Cohvell, 90 III. 612. HOW MUST ARISE. The facts from which a presumption is to arise nuist be estab- lished by direct evidence as if they were the very facts in issue. Chicago vs. Carlin, 141 App. 118. Presumptions are derived from the circumstances of the case through common experience and the ordiriary reasoning powers without the aid of artificial rules of law. Sonntag vs. O'Hara, 73 App. 432. Where there is clear and incontestable proof of a fact, no pre- sumptions can be indulged except such as arise from the proof. C. B. & Q. By, Co. vs. Patteu, 74 111. 91. PRESUMPTION ON PRESUMPTION. One presumption cannot be the basis for a second presumption; that is, a presumption of fact is not alone a legitimate foundation for a second presumption of fact. J . Keavern vs. People, 224 111. 170; Condon vs. SchoenfeW, 214 111. 226; 111. Steel Co. vs. Bycyzuski, 106 App. 331; Morris vs. J. St. L. R. E. Co., 10 App. 389; Smith vs. E. St. L. Ey. Co., 169 App. 132; XII 111. Notes 476, § 23. For there is no open and visible connection between the facts out of which the, first presumption arises and the fact sought to be established by the dependent presumption. Such a mode of arriving at a conclusion of fact is generally, if not universally, inadmissible. No inference of fact or of law is reliable, drawn from premises which are uncertain. Whenever cir- cumstantial evidence is relied upon to prove a fact, the circum- stances must be proven, and not themselves presumed. Globe Ace. Ins. Co. vs. Gerisch, 163 111. 625. PARTICULAR PRESUMPTIONS. Abbreviations : Initial letter of name will be presumed to be an abbreviation of full name. A Feld vs. Loftus, 240 111. 105; Lee vs. Mendall, 40 111. 359; Cf. Elves vs. Mars, 25 Dl. 350. There is no presumption of sex from the use of initials. People vs. Martin, 180 App. 578. Abduction: That female's previous life and conversation were chaste. Bradshaw vs. People, 153 111. 156; Slocum vs. People, 90 111. 274. Absent Witness: The unexplained failure to call and examine as a witness a per- son who has knowledge of the facts in issue, and who, under the circumstances, would be expected to be produced, and is avail- 1002 PRESUMPTIONS able, gives rise to a presumption against the party. ''This rule does not apply where the omission is to call a witness who might equally as well have been called by the other party." Village of Princeville vs. Hitchcock, 101 App. 588; Amer. Steel Foundry vs. Kistner, 136 Ap^). 48. Where neither party to a civil suit calls an available witness, whatever presumption will be indulged from the failure to call such witness will be against the party to whose interests such wit- ness would most likely incline. Zimmermaiin vs. Zimmermaiin, 149 App. 231. Accident : The mere happening of an accident does not raise presumption of nesflisrence. O'Caliagban vs. Delhvood Park, 242 111. 336; E. & S. Trac. Co. vs. Wilson, 217 111. 47; Kennedy vs. C. & C. Coal Co., 180 App. 42; XllI JIL Notes 953, §§141 et seq. Account Stated: In ordinary business transactions, if an account is transmitted from one party to another and no objection is made, in a reason- able time, it will be presumed to be a stated account. State vs. I. C. E. E. Co., 246 111. 188; Wurlitzer vs. Dickerson, 153 App. 36; Pickham vs. I. I. & M. Ey Co, 153 App. 288; Green vs. Smith, 52 App. 158. Will be presumed to be made up of legal and proper items. Sutphen vs. Cnshman, 35 111. 186. Assent of parties that account is correct may be presumed from circumstances. Neagle vs. Herbert, 73 App. 17. Account sent in usual and customary way is presumed to have been duly received. Dick vs. Zimmerman, 105 App. 615. Acknowledgment : — Certificate: Is presumptive evidence of the material facts ' therein stated, limited to those matters to which officer is required to certify. Walker vs. Shepard, 210 111. 100; Warrick vs. Hull, 102 111. 280; Hagan vs. Waldo, 168 111. 646. — AutJiority to Take: A justice of the peace in a sister state is not presumed to have power to take acknowledgment. Buckmaster vs. Job, 15 111. 328. — Seal: Presumption is that notary attached his official seal, where his certificate so recites and original deeds are not produced. Baker vs. Baker, 159 111. 394. Ademption : Where difference between amount of legacy and sum paid to legatee by testator in his lifetime, after making of will, is slight, legacy is presumed adeemed. Tanton vs. Keller, 167 111. 129. Adjournment of Court: Presumed to be regular. White vs. People, 81 111. 333. Adoption : Jurisdiction will not be presumed. Kennedy vs. Borah, 226 111. 243; Watts vs. Dull, 184 111. 86; Cf. Barnard vs. Barnard, 119 111. 92. PRESUMPTIONS 1003 Special act providing for adoption of child and making it lieir is presumed to have been enacted at request of adopting parents. Sales vs. Christy, 187 111. 420. Adultery : Innocence presumed. Jenkins vs. Jenkins, 86 111. 340; Carter vs. Carter, 62 111. 439; Port vs. Port, 70 111. 484. Advancements : Presumption is that conveyance of hushand to wife is by way of advancement. Lewis vs. McGrath, 191 111. 401; Stubbings vs. Stubbings, 248 111. 406. But such presumption is not conclusive. Baekseits vs. Leicbtweis, 256 111. 357. Or where money is paid by parent and conveyance taken in name of child, presumption is that of advancement. Brennaman vs. Schell, 212 111. 356; Euans vs. Curtis, 190 111. 197. Adverse Possession : Cannot be made out by inference or implication. Horn vs. Metzger, 234 111. 240; White vs. Harris, 206 111. 584. AUbi: — As to Time Pieces: Wliere an alibi depends vitally upon accuracy of different time pieces, presumption is of slight discrep- ancy in time pieces rather than untruthfulness of witnesses. Painter vs. People, 147 111. 444. — Failure to Prove: Should create no presumption against defendant. Miller vs. People, 39 111. 457. Alterations and Erasures: — Date of Alteration: The law indulges no presumption as to when a change in a written instmment was made, but requires the party offering an altered instrument in evidence, if the alteration is material, to explain such alteration satisfactorily to the court, before the instrument will be admitted in evidence. Gage vs. City of Chicago, 225 111. 218; Catlin Coal Co. vs. Lloyd, 180 111. 398; Milliken vs. Marlin, 66 111. 13; DeLong vs. Soueie, 45 App. 234. — Apparent: An alteration apparent on the face of note must be presumed prima facie to have been made after the instrument was executed, and the burden of proof is upon holder to show contrary. Lowman vs. Auberry, 72 111. 619; McAllister vs. Avery, 17 App. 568 ; Hodge vs. Gilman, 20 111. 437 ; Schwartz vs. Herrenkind, 26 HI. 209. The law presumes alteration was made after deed was executed, and it is for party claiming under it to show it was not, or other- wise explain it. Pyle vs. Oustatt, 92 111. 209; Montag vs. Lynn, 23 111. 551; Sisson vs. Pearson, 44 App. 81. In absence of explanation, alteration of contract presumed to have been subsequent to execution and delivery of instrument. Walters vs. Short, 10 HI. 252. Erasure of material words in a proposed contract is presumed to have been made for a definite purpose. Wilson vs. Espert, 90 App. 117. 1004 PRESUMPTIONS Ancient Documents : Due execution presiimod. Koch vs. Streuter, 232 111. 594; Smith vs. Eankin, 20 111. 14. The existence of a valid power of attorney will be presumed in favor of ancient deed whicli purports to be executed by attorney in fact. Renter vs. Stuekart, 181 111. 529; Cf. Fell vs. Young, 63 111. 106. — Genuineness: Presumed to be genuine without express proof of execution, if found in proper custody, and free from just grounds of suspicion and corroborated by evidence of ancient or modern corresponding enjoyment or by other equivalent or ex- planatory proof. In such case, witnesses to instrument are pre- sumed to be dead and instrument is presumed to have constituted a part of the actual transfer of the property mentioned in it. Eeuter vs. Stuekart, 181 111. 529. A party producing such papers must do everything in his power to raise presumption of genuineness. Smith vs. Rankin, 20 111. 14. — Puhlw or Statutory Poiver to Make: Jurisdiction of trib- unal ordering document to be made must be shown. Koeh vs. Streuter, 232 111. 594 ; Fell vs. Young, 63 III. 106. Anti-Saloon Territory : Presumption is that votes cast at election to provide for were legal. People vs. Walker, 154 App. 3; People vs. Joyce, 154 App. 13. Animals : — Vicious: The keeping of an animal known to be vicious, likely to attack and injure men, is, of itself, such negligence as will render the keeper liable for injuries done by it. Ahlstrand vs. Bishop, 88 App, 424; Hammond vs. Melton, 42 App. 186. — Savage Beasts: Owner is conclusively presumed to have notice of dangerous and vicious character. Ahlstrand vs. Bishop, 88 App. 424 ; We.st Chi. St. Ey. Co. vs. Walsh, 78 App. 595; Moss vs. Partridge, 9 App. 490. Ante-Nuptial Contract: If provision made is disproportionate to means of intended husband, presumption is raised in favor of wife, that execution of agreement was brought about by designed concealment by in- tended husband of amount of property owned by him. Miner vs. Phee, 254 111. 60; Warner vs. Warner, 235 111. 448; Col- bert, vs. Rings, 231 111. 404; Murdock vs. Murdock, 219 111. 123; Achilles vs. Achilles, 151 111. 136. Apportionment of Debts: Presumed that court made just and equitable apportionment to each party concerned. Dauel vs. Arnold, 201 111. 570. Arbitration and Award: Every reasonable intendment and presumption is in favor of validity of award. McDonald vs. Bond, 195 111. 122; Seaton vs. Kendall, 171 111. 410; Haywood vs. Harmon, 17 HI. 477 ; XI 111. Notes 376, § 63. No presumption will be indulged to overthow it. Merritt vs. Merritt, 11 111. 565; Shear vs. Mosher, 8 App. 119. PRESUMPTIONS 1005 — Matters Suhmitted: An award will be presumed to be with- in terms of siil)mission. Hubbard vs. Fiiiuan, 29 111. 90. And if submission be general and award of one or more things only, it will be presumed that nothing else was before arbitrators. Tucker vs. Page, 69 HI. 179. — Adjournment: Adjournment will be presumed to have been for good cause, in absence of contrary showing. Poppers vs. Knight 69 App. 578. Assent : — -Of Shipper: Where a contract limiting the liability of car- rier is contained in a bill of lading, which is both receipt and con- tract, presumption is that consignor did not assent, although signed by him. Wabash E. R. Co. vs. Thomas, 222 111. 337 ; C. C. C. & St. L. Ey. Co. vs. Patton, 203 111. 376. — Conveyance: When conveyance is voluntary settlement, or to one not sui juris, assent will be presumed. Spencer Vs. Razor, 251 111. 278; Baker vs. Hall, 214 111. 364; Chap- lin vs. Nott, 203 111. 341; Chilvers vs. Race, 196 111. 71. If deed creates a liability against the grantee or imposes any obligation upon him, an acceptance cannot rest upon any pre- sumptiort.''''^* ^^ '^' Hill vs. Kreiger, 250 111. 408; Thompson vs. Dearborn, 107 111. 87. Attorneys : — AulhurUij: Presumed that an attorney was authorized to represent a party. People vs. Parker, 231 111. 478; Patterson vs. N. Trust Bank, 230 111. 334; Ferris vs. Com. Nat. Bank, 158 111. 237; Cigler vs. Keinath, 167 App. 65; Woodard vs. Donovan, 167 App. 503; XI HI. Notes 486, § 52. Where record of a case in which judgment is rendered shows an appearance by attorney, that is regarded as presumptive evi- dence of authority of attorney to act. Famous Mfg. Co. vs. Wilcox, 180 111. 246. ' Attorneys of record are presumed to have all the general powers that the law infers from the relation. Cameron vs. Stratton, 14 App. 270. ' But otherwise of an attorricy not of record. ' ' Cameron vs. Stratton, 14 App. 270. — Negligence: There is no presumption that an attorney is guilty of want of care arising merely from his failure to be suc- cessful. He is entitled to presumption that he has done his duty. Priest vs. Dodsworth, 235 111. 613. Dealings and Contracts with Clients: A contract made by an attorney with his client in relation to the interest acquired by him in the subject matter of pending litigation is presumptively fraudulent. . ' Reed vs. Boyle, 234 HI. 105; Day vs. Wright, 233 111. 218; Fran- cisco vs. Dove, 231 111. 402; Willin vs. Burdette, 172 111. 117; Roby vs. Colehour, 135 111. 300. Bailment: ^ Wliere goods are placed in hands of bailee in good condition, 1006 PRESUMPTIONS and returned in damaged state or not returned at all, negligence will be presumed. Edgerton vs. C. E. I. & P. Ey. Co., 240 111. 311; Funkhouser vs. Waggoner, 62 111. 59; C. & A. E. E. Co. vs. P. & P. U. Ey. Co., 157 App. 583 ; Hudson vs. Bradford, 91 App. -lb. But see Bryan ■'■''• vs. C. & A. Ey. Co., 169 App. 181. Banks and Banking: — Deposit: Is presumed to be general. Meadowcroft vs. People, 163 111. 56; Wetherell vs. O'Brien, 140 111. 146; Mut. Ace. Assn. vs. Jacobs, 141 111. 261. — Signature: A bank is presumed to know the signature of a depositor. Chi. Natl. Bank vs. N. W. Bank, 40 App. 640, Bastardy: In bastardy, it being proven that the woman gave birth to a child at a given date, it may be presumed that child was born alive and is still living. Mann vs. People, 35 111. 467; Lewis vs. People, 87 App. 588, Bill of Exceptions: In chancery, presumed to contain all evidence, but not so in law. Eyan vs. Sanford, 133 111. 291. Boundaries : The adoption of a division line may be presumed from acts and declarations of parties and their acquiescence for a considerable time. Sonneman vs. Murtz, 221 111. 362; Sheets vs. Sweeney, 136 111. 336; Fisher vs. Bennehoff, 121 111. 426; Thomas vs. Sayles, 63 111. 363. Breach of Promise: Where there is a general promise to marry, law will imply that it is to be performed within a reasonable time, Blackburn vs. Mann, 85 111. 222. Buildings : Are presumed to be part of realty, Goff vs. O 'Conner, 16 111. 421. Carriers : — Injury to Passenger: If an injury to passenger is caused by apparatus wholly under control of carrier, and furnished and applied by it, and the accident is of such character as does not ordinarily occur if due care is used, law raises presumption of negligence, but this presumption arises from the nature of the accident and attending circumstances, and not from the mere fact of the accident itself. O'Callaghan vs. Dellwood Park, 242 111. 336; Barnes vs. Danville St. Ey. Co., 235 111. 566 ; McFadden vs. C. E. I. & P. Ey. Co., 149 App. 298; E. A. & S. Tlac. Co. vs. Wilson, 217 111. 47; XI 111. Notes 801, §460. — Injury to Goods: Proof of failure of goods to arrive at des- tination raises presumption against carrier of want of ordinary care, and burden shifts to carrier to rebut such presumption by proof sufficient to exculpate it from negligence attributable to it from fact of non-arrival at destination. Ellison vs. Adams Express Co., 152 App. 1. A common carrier is an insurer of goods entrusted to it, and accountable for loss thereof or any damage thereto, vmless shown to have happened by act of God or the public enemy, or to have PRESUMPTIONS 1007 been occasioned by act of shipper or some one in his employ ; burden of proving exoneration is upon carrier. Mahaffy vs. Wise. Cent. Ey. Co., 147 App. 43. Presumption is that merchandise was in good condition at time of receipt. Euddell vs. B. & O. Ry. Co., 152 App. 218: Ry. Co. vs. Cobb, 72 111. 148, — Continuance of Relation: Where relation of common car- rier is once shown, continuance of that relation will be presumed, and burden is upon carrier who desires to show that his liability as such had terminated at time of loss. P. & P. U. Ey. Co. vs. U. S. Eoll. Co., 136 111. 643. — Routing: Where a shipment of goods is received by carrier for transportation, over a route designated by shipper, presumption arises, in absence of contrarv, that sucli routing w^as over lines with which the carrier had theretofore made its own arrangements and rates. Fry vs. Sou. Pacific Ry. Co., 247 111. 564. Character : In both civil and criminal cases, good character is presumed. Kelly vs. People, 229 111. 81; Stowell vs. Beagle, 79 111. 525. Chattel Mortgages: Presumption is that party who acknowledged mortgaged con- taining words "acknowledged before me by mortgagor," was resi- dent of town where same was taken. Gilbert vs. Natl. Cash Eeg. Co., 176 111. 288. Check : Presumption obtains that a check is given in payment of an existing debt, or that money was paid for it at the time. Miller vs. Pratz, 179 App. 204; Kinahan vs. Butler, 133 App. 459; McKenzie vs. Barrett, 148 App. 414; Chestnut vs. Chestnut, 15 App. 390. Circuit Judges: Where a circuit judge is holding court in another circuit than his own, though record does not show why, it will be presumed he is doing so rightfully. Morgan vs. Coiies, 81 111. 72; Reitz vs. People, 77 111. 518; Scott vs. White, 71 111. 287. Claims Allowed: Will be presumed to be valid and that estate was liable for same. Outright vs. Stanfford, 81 111. 240. But if it appears from the face of the account, that items were improperly allowed, no such presumption will sustain them. Marshall vs. Coleman, 187 111. 556; Bond vs. Lockwood, 33 111. 212. Color of Title: Will be presumed to have been acquired in good faith. Keeney vs. Glos, 258 111. 555; Peabody vs. Burri, 255 111. 592; God- frey vs. Dickison Power Co., 228 111. 487; Dawson vs. Edwards, 189 111. 60; Taylor vs. Hamilton, 173 111. 392; XI 111. Notes 75, § 115. In bill to remove cloud from title, every presumption will be indulged in favor of holder of legal title and as against him no presumption in favor of holder of color of title will be raised. Towle vs. Quante, 246 111. 568; LeSoud vs. Edwards, 236 111. 169; White vs. Harris, 206 111. 584. 1008 PRESUMPTIONS Commissions : la an action by a broker selling on commission the customer will be presumed to be responsil)le. Kalinos vs. MeCready, 180 App. 325. Common Law: Will be presumed to be in force in a sister state. Forsyth vs. Barnes, 228 111. 326; Scliolteu vs. Barber, 217 111. 148; Eobinson vs. Tetter, 143 App. 172; Edwards vs. SchiUinger, 148 App. 227; Schlee vs. Guckeuheimer, 179 111. 593; Xll 111. Notes 477, § 33. Compromise and Settlement: — ■R(Cfii)t: In full, is presumptive evidence that on date of same parties made full settlement and adjustment of their accounts. Burns vs. Middleton, 104 111. 411; Marstou vs. Wilcox, 2 111. 269. — Promissory Note: The giving of a note, of itself, unex- plained, is not presumed to be a settlement of all demands. Eosencrantz vs. Mason, 85 III. 262; Ankeny vs. Pierce, 1 111. 262. It is a matter of intention. Eayfield vs. Tincher, 180 App. 454. Confusion of Goods: Mingled by consent, presumption is that parties intended to hold mass as tenants in common. Dole vs. Olmstead, 36 111. 397. Consideration : Seal is presumptive evidence of a suf^eient consideration. Mills vs. Larrance, 186 111. 635; Euppert vs. Frauenkneclit, 146 App. 397. — Promissory Note: Consideration presumed. McMickan vs. Safiford, 197 111. 540. — Contract: The law presumes that consideration agreed upon is adequate. Ullsperger vs. Myer, 217 111. 262. Contested Elections: Presumed that election .judges performed their duty. Dooley vs. Van Hohenstein, 170 111. 630. — Eight to Vote: A person whose vote is received by officers in charge, will be presumed to have been a legal voter. Blankenship vs. Israel, 132 111. 514; Webster vs. Gilmore, 91 111. 324. Presumption of right to vote arises from act of voting. Collier vs. Ahnlicher, 189 111. 34. — Illegal Voting: Will not be presumed. Dorsey vs. Brigham, 177 111. 250. (See Welsh vs. Shumway, 232.111. 54, that ])resuniption is college student is not a legal voter.) — Party Affiliation: Proof of, raises presumption that voter voted for nominee of his party. Eexroat vs. Schein, 206 111. 80. Continuance : — //( General: Where the existence of a state of things is once established by proof, the law presumes that such state of things continues to exist as before until the contrary is shown or until a different presumption is raised from the nature of the subject in question. Glos vs. Perkins, 188 111. 467 ; XII 111 Notes 477, § 34. PRESUMPTIONS 1009 "Where a fact or relation is once shown to exist, it will be pre- sumed, in general, to continue until contrary is shown. Linc'k vs. Litchfield, 141 111. 4(39; liiigor vs. McKay, 44 App. 79. Note : This presumption has been applied to : Possession of personal property. Beigeuer vs. Leppold, 128 App. 590. Real property. Glos vs. Kemp, 192 111. 72 j White vs. White, 105 111. 313. Matrimonial state. Stoiitonboiough vs. Russell, 123 App. 487. But there is no presumption of prior existence of such relation from proof of present existence. Erskine vs. Davis, 25 111. 251. Health. Draves vs. People, 97 App. 151. Residence People vs. Estate of Moir, 207 111. 180. Insanity. Stitzel vs. Farley, 148 App. 635; Titconib vs. A^an Tyle, 84 111. 371; Severus vs. Broii'ey, 155 App. 10. But is not conclusive. In re Estate of Weedman, 254 111. 504; County of iNIcHenry vs. Town of Dorr, 39 App. 240; Taylor vs. Pegram, 151 111. 106. Ownership of real property. Eggers vs. Hardwick, 155 App. 254. Solvency of building and loan association. Col. B. & L. Assn. vs. Kriet, 87 App. 51. Defective condition of machinery. Pioneer Cooj^erage Co. vs. Eonianovrie?, 186 111. 9. Ordinance still in force. St. L. A. & T. E. R. Co. vs. Eggman, 161 111. 155; Earlville vs. Riley, 141 App. 359. Foreign statute still in force. Miami Powder Co. vs. Tlotehkiss, 17 App. 622. Continuance of life. Reedy vs. Millizen, 155 111. 636; C. & A. E. E. Co. vs. Keegan, 185 111. 70; Lowe vs. Foulke, 103 111. 58. Presumption is that one who has been twice married has not committed a criminal offense and this presumption of innocence prevails over the presumption of continuance of life of former spouse. ' •' ;■• Stein vs. Stein, 66 App. 526; Johnson vs. Johnson, 114 111. 611. Good standing of member of beneficiary association. Eoyal Circle vs. Acliterrath, 204 III. 549. Market price next day. Nash vs. Classem, 55 App. 356. Terms of contract for services. Hears vs. O 'Donoghiie, 58 App. 345. Closed gates along railroad right of wav. C. & A. Ey. Co. vs. Patterson, 72 App. 428. Place where body was found after explosion raises no presump- tion that deceased was there before. Drennan vs. C. & C. Coal Co., 241 111. 610. There is no presumption that things were in the past in the con- Ev.— 64 1010 PRESUMPTIONS dition that they are in the present. The presumption runs for- ward, not backward. Cantwell E. B. Co. vs. Horst, 61 App. 330. Rule is applicable' to possession and ownership. Kengel vs. Schoder, 178 App. 151. Proof of a certain state or condition of things at a given time will raise a presumption of fact strong enough to support a finding that it continued for a longer or shorter time thereafter, or until shown to be changed according to the nature and surroundings of the subject. C. & A. Ey. Co. vs. Patterson, 72 App. 428. Presumption does not prevail that land vacant and unoccupied three years prior to filing of bill to remove cloud is vacant at time of filing, Glos vs. Perkins, 188 HI. 467. It is doubtful whether such presumption of continuance will prevail when applied to an annual office like that of city attorney. Linck vs. City of Litchfield, 141 111. 469. Continuance of Cause: AVhere transcript fails to show reason, presumption is the con- tinuance M'as granted by justice for legal cause. Subin vs. Isidor, 88 App. 98. Contracts : — Contents: A written contract is presumed to embody all the agreements of the parties. Grubb vs. Milan, 249 111. 456; Farrar vs. Hinch, 20 111. 647. And that party signing knew its contents, Kingman vs. Eeinemer, 166 111. 208. And that possessor of document knew its contents. Kogan vs. Arnold, 135 App. 287. — Delivery: Presumption is that contract was delivered on day of its date. City of Paxton vs. Bogardus, 201 111. 628. — Legality: There is no presumption that contract is illegal or criminal. Clemens vs. Crane, 234 111. 215. The presumption of law is in favor of legality of a contract, and therefore, if it be reasonably susceptible of two meanings, — one lawful and the other not, — that interpretation shall be given it which will support and give it operation. Paul vs. Paul, 71 App. 671. — Freedom of Parties: Presumption is in favor of freedom of parties to contract with reference to particular matter in hand. Schaeppi vs. Bartholomae, 118 App. 316. — Performance: It is presumed a contract is to be performed where it is made, unless contrary appears. Lewis vs. Headly, 36 111. 433. Of second contract, in absence of proof, presumed to be on same terms as first. Bacon vs. Cobb. 45 111. 47. — Interest of Parties: A contract is presumed to express actual and entire interest of parties. Carpenter vs. Plagge, 1-92 111. 82. PRESUMPTIONS 1011 — Rescission: Of former contract is presumed where evidence shows later inconsistent contract. Gray vs. B. & O. Ey. Co., 120 App. 159: Stowe vs. Eussell, 36 111. 18. — Foreign State: Contract made in foreigTi state presumed made in accordance with laws of such state. Miller vs. Wilson, 146 111. 523. Where a contract is to be performed in a sister state, it must be presumed that the parties contracted with reference to the laws of such state where contract is to be performed, rather than with reference to the laws of the state where contract was made. Abt vs. American Bank, 159 111. 467. Conveyance : Where a party conveys land which he does not own, but does own other land in the same section, presumption is he intended to convey land he owned. Caldwell vs. McGee, 162 App. 171; Dougherty vs. Purdy, 18 HI. 206. Corporations: — De Facto: An association may be regarded as a de facto corporation when there is a law authorizing the creation or corpo- rations of its class and powers, and where there is an attempt in good faith to comply with the law. Cozzens vs. Chi. Brick Co., 166 111. 213; Marshall vs. Keach, 227 111. 35; Dean and Son vs. W. B. Conkey Co., 180 App. 162. — Execution of Instrument: Execution of instrument by de- fendant to plaintiff as corporation is presumptive evidence of ex- istence of corporation. West Side Auction Co. vs. Conn. Ins. Co., 186 111. 156; Smith vs. Mayfield, 163 111. 447; Brown vs. Mortgage Co., 110 111. 235. Where instrument is duly executed by one having authority, the seal used will be presumed to be proper seal. Phillips vs. Coffee, 17 111. 153. — Certificate of Stock: Issued by secretary, is presumptive evidence of its regularity. Hall vs. E. H. & E. Co., 70 111. 673. Holder under assignment is presumed to be rightfully in pos- session. Coffey vs. Coffey, 179 HI. 283. — Capital Stock Subscription: All presumed to be on same basis. Melvin vs. Lamar Ins. Co., 80 111. 446. Final certificate of complete incorporation is prima facie proof that the full amount of capital stock has been subscribed. McCoy vs. Columbian Exposition, 186 111. 356; Jewell vs. Eock Eiver Paper Co., 101 111. 57. — Authority of President: An act pertaining to the business of a corporation, not clearly foreign to the general power of the president, done through him, will, in absence of proof to contrary, b« presumed to have been authorized to have been done by the corporate body. Traders Ins. Co. vs. Johnson, 200 HI. 359; Glover vs. Lee, 140 111. 102; Anderson Transfer Co. vs. FViller, 174 111. 221. — Stock-Holders Meetings: Due notice will be prc^sumed. Cushman vs. 111. Starch Co., 79 111. 281; Forest Glen Co. vs. Gade, 55 App. 181. J,' 1012 PRESUMPTIONS County Judges: ; ^.u..^^ "Where a county judge is holding court in another county than his own, though the record does not show why, it will be presumed he is doing so rightfully. Strieker vs. Kubiisky, 35 App. 159. Customs and Usages : — Foreign Countries: Courts presume that customs of foreign countries are the same as those of its own jurisdiction. Dempster vs. Stei^ben, 63 App. 126. — Contraet: AVhere a general custom exists, the presumption is that parties contract wdth reference to it.' ''f't or -. -U/i Steidtman vs. Lay Co., 234 111. 84; Taylor vs. Bailey, 169 111. 181; Cbisholm vs. Beaman Mach. Co., 160 III. 101; Myers ys. Walker, 24 111. 134; XII 111. Notes 7, §22. rr,o-A ^r+fPrr p, a- , Where a territorial or local custom is involved, it is regarded as aving entered into contracts of those domiciled in the locality, and perhaps of those permanently engaged in business in the locality where the custom exists. : 2ii Swern vs. ChurchiU, 155 App. 505. Damages : In action for wrongful death, where relation of husband and wife, or parent and child exists, the law presumes pecuniary loss from fact of death. ^^-^ Fischer vs. C. & W. I. E. R-X::)©'.; 171 App. 347; N. Chi. St. Ey. Co. vs. Brodie, 156 111. 317. And where deceased left lineal descendants, damages will be presumed. C. C. C. & St. L. Ey. Co. vs. Dukeman, 130 App. 105. Pecuniary loss to a mother who is entitled to earnings of minor son, will be presumed without proof. Bradley vs. Sattler, 156 111. 603. "Where deceased is a minor and leaves father entitled to his services, law presumes pecuniary loss from his death. C. & E. I. E. E. Co. vs. Huston, 196 111. 480; Savage vs. Hayes Bros., 142 App. 316; City of Chicago vs. Seholton, 75 111. 468;" Stafford vs. Eeubeus, 115 111. 198. But where next of kin are collateral kindred of deceased, and have not been receiving pecuniary assistance from him, and are Qot in a situation to recpiire it, it is immaterial how near the rela- tionship may be, only nominal damages can be given. Dukeman vs. C. C. C. & St. L. E. E. Co., 237 111. 104; Ehoads vs. l,)0-i. C & A. E. E. Co., 227 111. 328;' Eomeo vs. Western Coal Co., 157 App. 67 ; Smiley vs. E. St. L. & S. Ey. Co., 169 App. 29. Where it appears deceased left a father and mother^ a presump- tion of pecuniarv loss will be indulged. ^qs"-! lo/r Grace & Hyde Co. vs. Strong, 127 App. 336; Huss vS. P. & E. Ey. , Co., 127 App. 242. Where relation of parent and child exists, law presumes a pecun- ia,ry loss from death of child. City of Chicago v. Keefe, 114 111. 222; McKechney vs. Eedmond, 94 111. 470; Nordhaus vs. Vandalia B. E. Co., 147 App. 274; Economy L. & P. Co. vs. Sheriaan, 103 App. 145. If relation of next kin is lineal, law presumes pecuniary loss from fact of death. C. p. & St. L. Ey. Co. vs. Woolridge, 174 111. 330.. PRESUMPTIONS 1013 The law presumes damage to have resulted to adult children from the death of their mother. Eautinau vs. Chi. Con. Co., 156 App. 457. It is only where the relation of next of kin are parent and child or husband and wife that the law presumes damages from proof of death caused by negligence. C. B. & Q. Ry. Co. vs. Gunderson, 174 111. 495; C. & N. W. Ry. Co. vs. Swett, 45 111. 197. In action on benefit certificate, providing for payment of the amount thereof if an assessment would yield that amount, the damages are presumed to be the full amount of such certificate, in absence of contrarv proof. Gov. Mut. Life. Ins. Co. vs. Kentner, 188 111. 431; Pegi-am vs. Mut. Prot. League, 159 App. 214. — Violation of Right: Where the evidence shows a violation of plaintiff's rights, actual damages will be presumedo Blanchard vs. Burbank, 16 App. 375. Where there is any distinct legal wrong, which in itself consti- tutes the invasion of the right of another, the law will presume that some damage follows, as a natural, necessary and proximate rGsult Polar Wave lee Co. vs. 111. H. S., 155 App. 316; C. W. D. Ry. Co. vs. Rend, 6 App. 243; McConnell vs. Kibbe. 33 111. 175. Where defendant has wrongfully invaded and trespassed plain- tiff's rights, without authority, proof of damages is not necessary as same will be presumed. Sanitarium vs. Kenilworth, 220 111. 264; Brent vs. Kimball, 60 111. 211; Pfeiffer vs. Grossman, 15 111. 53; Plumleigh vs. Dawson, 6 111. 544; Polar Wave lee Co. vs. Humane Soc, 155 App. 310.^ — Slander: The law presumes damages from the speaking of actionable words and also that the speaker intended the injury the slander is calculated to effect. Baker vs. Young, 44 111. 42. — Bonds: In action for breach of bond for payment of money, introduction of bond does not make prima facie case. Barrett vs. Building Assn., 75 App. 98. In action on penal bond, the introduction of the bond makes a prima facie case for plaintiff for full amount, as debt, and if inter- est after maturity is recoverable, that should be allowed as damages. Hoxsey vs. Patterson, 59 111. 522. Date: — Deed: Date of a deed will be presumed to be true date of execution. Darst vs. Bates, 51 111. 439. And delivered on such date. Kimball vs. City of Chicago, 253 111. 105; Bennett vs. Milliard, 239 111. 332; Redman vs. Cass, 226 111. 120; Walker vs. Doane, 131'' 111. 27. But where deed conveys homestead there can be no presumption that the deed was delivered, on the day it bears date if the date of the deed is prior to date of acknowledgment. Callegan vs. Callegan, 259 111. 52. Acknowledgment will not be presumed to be date of execution when deed recites otherwise. Jayne vs. Gregg, 42 111. 413. jjiici. 1014 PRESUMPTIONS — Officer's Certificate: Presumption is that certificate of public officer was made on day of date. Kepley vs. Scully, 185 111. 52. — Contract: Presumption is that contract was delivered on day of its date. City of Paxton vs. Bogardus, 201 111. 628. — Note: It will be presumed that undated indorsement was made at date of note. DeClerque vs. Campbell, 231 111. 442; Gridley vs. Capen, 72 111. H; Kingslaud vs. Koeppe, 137 111. 344. And where without date, presumption is that assignment was of date of note. Cook vs. Norwood, 106 111. 558; Smith vs. Newlin, 89 111. 193; White vs. Weaver, 41 111. 409; Johnson vs. Loar, 145 App. 443; Bussey vs. Hemp, 48 App. 195. Is presumed assignee purchased before maturity. Freehold Bank vs. K. & W. Co., 148 App. 310. Abstracts of Title: An abstract is presumed to have been made and signed at its date. C, & A. R. E. Co. vs. Keegan, 152 111. 413. Death : — Cause: In absence of proof of cause of death, natural causes will be presumed. Knights Templars vs. Crayton, 209 111. 550; F. & C. Ins. Co. vs. Wiese, 182 111. 496; Amer. Home Circle vs. Schneider, 134 App. 601. — Seven Years' Absence: The unexplained absence of a person from home without having been heard from for seven years by those who would naturally have heard from him had he been alive, though diligent efforts have been made to find him, raises a pre- sumption of death. Donovan vs. Major, 253 HI. 179; Kennedy vs. Modern Woodmen, 243 111. 560; Policemen's Ben. Assn. vs. Eyce, 213 111. 9; Hintz vs. Ahlgren, 170 111. 60; Eeedy vs. Millizen, 155 111. 636; Johnson vs. Johnson, 114 111. 611; Modern Woodmen vs. Graber, 128 App. 585; XII 111. Notes 54, §2. — Continuance of Life: Presumed to continue to end of seven years. Eeedy vs. IMillixen, 155 HI. 636; Sinsheimer vs. Skinner Mfg. Co., 165 HI. 116. But this only in event of absence of contravening facts or con- trolling presumptions. .Johnson vs. Johnson, 114 111. 611. But death of husband or wife may be presumed when the other spouse has married a second time, thus allowing the presumption of innocence to prevail over that of continuance of life. Cartwright vs. McGown, 121 111. 388. And it is not necessary that absence should continue over seven years. Johnson vs. .Johnson, 114 111. 611; Harris vs. Harris, 8 App. o7. A person who gave a power of attorney is presumed to have been alive five years later. C. & A. E. Co. vs. Keegan, 185 HI. 70. And where it is shown that a certain person was living some years PRESUMPTIONS 1015 before time of suit, no presumption will be indulged that he has since died. Lowe vs. Foulke, 103 111. 58; Mosheimer vs. Ussleman, 36 111. 232. And in bastardy proceedings where child is shown to have been once alive, will be presumed to be alive at time of trial. Lev.is vs. People, 87 App. 588. Declarations; Against interest, are presumed to be true. German Ins. Co. vs. Bartlett, 188 111. 165. Decree in Chancery: Presumed still in force, in absence of evidence to contrary. Murphy vs. Orr, 32 111. 489. Where evidence is taken orally, trial court is presumed to be better judge of credibility and sufficiency of evidence than Supreme Court. Sehoonmaker vs. Pluinmer, 139 111. 612; Towle vs. Wadsworth, 147 111. 80. Dedication : May be presumed from length of user and acquiescence of owner. Alden Coal Co. vs. Challis, 200 111. 222. An acceptance by city or village of some of the streets and alleys appearing on a plat is presumed to be an acceptance of the entire system of streets and alleys unless intention to limit is shown. Kimball vs. City of Chicago, 253 111. 105. Such presumption is not conclusive. Moore vs. City of Chicago, 261 111. 56. Deeds : — Construction: Wliere a deed.is made to two or more grantees without designating the proportion each is to take, the law pre- sumes they were intended to take equal shares and they Avill be considered as tenants in common with equal interests, until con- trary is shown. Kuepper vs. Mette, 239 111. 586. Where grantees in deeds have same surname, if there is no evi- dence showing they were father and son, it will not be presumed that such relation existed. Weber vs. C. & W. I. R. R. Co., 246 111. 464. Where a deed is made to one of two persons bearing the same name being father and son, convevance is presumed to be to father. ' Dot> vs. Doty, 159 111. 46; Fyffe vs. Fyffe, 106 111. 646; Graves vs. Colwell, 90 111. 612. The law presumes, in absence of contrary proof, that a deed is what it purports to be, an absolute conveyance. Bartoletti vs. Hoerner, 154 App. 336. A deed, properly acknowledged, is presumed to be a valid in- strument. Smith vs. Kenny, 89 App. 293. Knowledge of Contents: Presumption is that a grantor, able to write could read writing, and to have known contents of his deed. Kennedy vs. Kennedy, 194 111. 346; Doran vs. Mullen, 78 111. 342. — Possession and Delivery: Where a deed duly executed is found in possession of grantee named therein, it is presumed to have been properly delivered. „ . -.no m Schroeder vs. Smith, 249 111. 574; Inman vs. Swearmgen, 198 iU. 437; Dunlop vs. Lamb, 182 111. 319. 1016 PRESUMPTIONS Reservation of life estate creates a presumption that it was in- tended deed should take eit'ect immediately. Buc-k vs. Garber, 2(51 ill. 378; Prince vs. Prince, 258 111. 304. — Date of Delivery: Presumption is that deed was delivered on day of it.s date. Kimball vs. City of Chicago, 2,53 111. 105; Bennett vs. Milliard, 239 111. 332; Kedmon vs. Cass, 226 111. 120. But is not conclusive. Kimball vs. City of Chicago, 253 111. 105; Whitman vs. Henneberry, 73 111. 109. (See Trusts, Delivery, AcKNOWLEWiMENTs.) — Parent and Child: Presumption in favor of delivery of deed from parent to child in case of voluntary settlement, is stronger than in ordinary cases of bargain and sale. Thurston vs. Tubbs, 257 111. 465; Valter vs. Blavka. 195 111. 610; Crabtree vs. Crabtree, 159 111. 342. — Recordation: Proof that a deed has been recorded is prima facie evidence that it has been delivered by the grantor. Spencer vs. Eazor, 251 ill. 278; Schroeder vs. Smith, 249 111. 574; Ackerman vs. Potter, 239 111. 578; Calkins vs. Calkins, 220 111. 111. But if the deed creates a lia1)ility against the grantee or imposes any oljligation upon him an acceptance cannot rest upon any pre- sumption but the acceptance must be of an affirmative character. Hill vs. Kreiger, 250 111. 408; Thompson vs. Dearborn, 107 111. 87. — 'Execution: After long acquiescence .in partition, execution of partition deeds is presumed. Lovalle vs. Strebel, 89 111. 370. The date of a deed will be presumed to be the true date of its execution. Darst vs. Bates, 51 111. 439; Jayne vs. Gregg, 42 111. 413. Deliberation : A person is presumed to do deliberately A\hat he does, circum- stances in no way intervening to control. Larmon vs. Knight, 140 111. 232. Depositions : Interrogatories to be propounded will be presumed to have been filed before date fixed for issuance of dedimus. Haish vs. Dreyfus, 111 App. 44. Descent and Distribution: Person dying intestate presumed to leave heirs capable of suc- ceeding to his estate. ^,, ,^^ Harvey vs. Thornton, 14 111. 217; Fell vs. Young, 63 111. 106; Chicago vs. Major, 18 111. 349. Destruction and Suppression of Evidence : Where one has destroyed a wa-itten instrument, it will be pre- sumed that it was against interest of spoliator. Tanton vs. Keller, 167 111. 129; Downing vs. Pate, 90 111. 268; XII 111. Notes, 478, § 40. No presumption against party failing to introduce Ms adver- sary 's declarations. Law vs. Woodruff, 48 111. 399. Evidence that son had possession of father's papers after his death, and deposited them in a bank, does not raise presumption that he destroyed or suppressed notes and books showing amounts advanced to liim by his father, where there is no competent evi- dence that such notes or books existed. Scott vs. Scott, 191 111. 628. PRESUMPTIONS 1017 Due Care: Where the fact is not susceptible of direct proof it may be in- ferred from circumstances and phiintiff may be aided by the pre- sumption that a person does not voluntarily incur danger or the risk of death. But that does not affect the question where tlie burden of proof rests. In a case where a person is killed and there are no eye witnesses to the accident there is no dispute that the burden of proof rests upon the plaintiff to show due care on part of deceased, but if there are no eye witnesses and no direct proof, he is entitled to the beueiit of the presumption, which, how- ever, must be aided by other proof. C. & E. T. Rv. Co", vs. Heerey. 203 III. 492; Collison vs. I. C. R. R. Co., 239 111. 532; Newell vs. C. C. C. & St. L. Ry. Co., 261 111. 505. Divorce : — Fact of: Sometimes presumed in favor of second marriage, when reasonable time and opportunity to procure one is shown. Cartwright vs. McGown, 121 111. 888. — Condonaiion: Presumed from unexplained delay in pro- ceeding for relief. Hitchins vs. Hitchins, 140 111. 326. Elections: The presumption in reference to giving of notice which attends an election under general law does not obtain in case of a special election. Southwerth vs. Board of Education, 238 111. 181. Presumption is, in absence of evidence to contrary, that judges performed their duty and made proclamation. Dooley vs. VanHolienstein, 170 111. 633. Embezzlement : If a man commits the act of embezzlement, presumption is that he means to embezzle. Spalding vs. People, 172 111. 40. Employment : — Nature and Time of: A general hiring will be presumed to be at will. Davis vs. Fidelity Ins. Co., 208 111. 375; Vogel vs. Pekoe, 157 111. 339; Orr vs. Ward, 73 111. 318; Bougliam vs. Paul, 138 App. 455. But such presumption may be rebutted by admissions of parties. Doerr vs. Brune, 56 App. 675. Continuing to render services in an employment after expiration of a definite term, raises presumption of new hiring upon like terms. Glucose Sugar Co. vs. Flinn, 184 111. 123; Ingalls vs. Allen, 132 111. 170; Morgan vs. McCaslin, 114 App. 427; Molina Plow Works vs. Booth, 17 App. 345. An employment generally, fixing no term of service, which con- tinues for several years, will he treated as a hiring by the year. Miller vs. Cinnemon, 168 111. 447. The terms of a written contract for services will be presumed to continue from year to year so long as the employment lasts, until contrary is shown. Mears' vs. O'Donoghue, 58 App. 345. But if employe receives notice of reduction of wages thereafter to be paid, and continues in service without objection, presumption will be that he consented to new terms and performed services thereunder. Crane Mfg. Co. vs. Adams, 142 111. 125. 1018 PRESUMPTIONS But such presumption does not arise where after the termination of the services under the contract, the employer requested the em- ploye to do certain other work, at a different place, but at the same price, especially when request is made after considerable time has elapsed after completion of service under agreement, lugalls vs. Allen, 132 111. 170. Proof that services were of slightly different character or were performed at a dilt'erent place is not sufficient to overcome pre- sumption arising from a continuation in employment. Ingalls vs. Allen, 132 111. 170. No time being fixed, the presumption is that the services were to begin at once or within a reasonable time after the execution of the contract. Barnard vs. Babbitt, 54 App. 62. — As to Compensation: Where extra work and labor is per- formed or materials furnished of the same character as other portions agreed in special contract, it will be presumed that the additional work was to be paid for at the same rate, but not if the work is of a different character. Chicago & G. W. E. Co. vs. Vosburg, 45 111. 311. Presumption is that services rendered by one admitted into family were gratuitous. ^,, ^^^ Hefron vs. Brown, 155 111. 322; Collar vs. Patterson, 137 lU. 403. But this presumption may be overcome and reverse established by proof of express or implied contract. Keyes vs. Thornton, 150 App. 523. Equitable Defense: The mere fact that a note was sold for a discount will not, of itself, be sufficient to raise a presumption of notice of equitable defense, where note was assigned before maturity for a valuable consideration. Kimmel vs. Nagle, 84 App. 22. Examination of Title: It is presumed, in judicial sale, that purchaser wall examine the title with the same care that a person does who receives a convey- ance of land. L. & N. E. E. Co. vs. I. C. E. E. Co., 174 111. 448. The law presumes that every man examines title to real estate before purchasing or receiving a mortgage. Campbell vs. McCahan, 41 111. 45. Exemptions : The law does not presume that a person does not have the prop- erty exempted by statute, nor does the mere claim that property is not enumerated prove it is exempt. McMasters vs. Alsop, 85 111. 157. Fabrication of Evidence : The fabrication of evidence raises presumption aganist party no less than when evidence has been suppressed or withheld. XJ. S. Brew. Co. vs. Euddy, 203 111. 306; Winchell vs. Edwards, 57 111. 41. T'oigft Prfitenses ! Person advertising article to possess certain qualities, where such representations are false, is presumed to speak from knowledge. Jackson vs. People, 126 111. 139. PRESUMPTIONS 1019 Fiduciary Relations: Presumption is against validity of transaction between persons occupying fiduciary relations, in favor of possessor of stronger will. Beech vs. Wilton, 244 111. 413; Fish vs. Fish, 235 ill. 396; Irwin vs. Sample, 213 III. 160. Fire Arms : Fire arms are not usually discharged without the interventioTi of some human agency. A presumption, therefore, almost conclu- sive in its character, is raised, that when such weapons are dis- charged while in the possession and control of another, the tiring is caused either by design, carelessness or inadvertence upon his part. Harrison vs. Allen, 179 App. 520; Atchison vs. Dullann, 16 App. 42; Zaeller vs. Schmitz, 172 App. 167; Foster vs. Shepard, 164 App. 199. Flight: Flight of one accused of crime may raise presumption of guilt. People vs. Duncan, 261 111. 339; Fox vs. People, 95 111. 71. Foreig-n Law: Common law will be presumed to be in force in sister state. Forsythe vs. Barnes, 228 111. 326 ; Scholton vs. Barber, 217 111. 148 ; Eobinson vs. Yetter, 143 App. 172; Edwards vs. Schillinger, 148 App. 227. In absence of proof, it is presumed same law prevails in sister state as in Illinois. Eeid vs. Northern Lumber Co., 146 App. 371. In absence of proof as to statute laws of a sister state, they will be presumed to be the same as the lex fori. Nehring vs. Nehring, 164 App. 527. — Statute Gonstruetion: Foreign courts are presumed to con- strue substantially similar statutes the same as courts of Illinois. Clark vs. Jackson, 222 111. 13. — Contracts: Made in foreign state presumed to be made in accordance with laws of such state. Miller vs. Wilson, 146 111. 523. Contract presumed to be made in reference to laws of state where same is to be performed. Abt vs. Amer. T. & S. Bank, 159 111. 467. Fraud : Fraud will not be presumed, but must be proven like any other fact. Never presumed when transactions may fairly be reconciled with honesty and if the weight of evidence is in favor of any honest motive, that conclusion should always be adopted. McKennan vs. Mickleberry. 242 111. 117; Union Natl. Bank vs. State Bank, 168 111. 256; Kennedy vs. Kennedy, 194 111. 346; Mey vs. Gulliman, 105 111. 272; XII "ill. Notes 760, §87. (Exception: See Fiduciary Eelations.) Fraudulent Conveyances : — Existence of DeMs: It will not be presumed that debts ex- isted at time of transaction. Eogers vs. Dimon, 106 App. 201; Bittinger vs. Kasten, 111 111. 260; Tunison vs. Chamberlain, 88 111. 378. — Selling Price: Presumed that price paid was full value of property, 'Jewett vs. Cook, 81 111. 260; Beech vs. Miller, 23 App. 151. 1020 PRESUMPTIONS Gaming : Where it is shown that a broker and his client intended to engage in a lietitious sale, presumption has been held to obtain that all parties entered into same with like intention. Beveridge vs. Hewitt, 8 Ai)p. 4G7. Intention may be presumed where party making purchase never demanded the purchase money but only margins. Jamieson vs. Wallace, 167 111. 388; Joues vs. Jones, 103 App. 382. Gifts: Presumption may arise from circumstances. Foley vs. McMahon, 73 111. 66. Presumption may arise froui the moral obligation to give. Capek vs. Kropik, 129 HI. 509; Bromwell vs. Bromwell, 139 111. 424; Lux vs. Hotf, 47 111. 425. — Hushand and Wife: Improvements constructed upon prop- erty of wife by husband presumed to be gift. Maciejewski vs. Jarzombek, 243 111. 136. — Parent and Child: In case of gift from child to parent, un- due influence may be presumed. Oliphant vs. Liversedge, 142 111. 160. Good Faith: On part of holder of color of title will be presumed. Keeney vs. Glos, 258 111. 555; Peabody vs. Burri, 255 111. 592. Conveyances are presumed to have been made in good faith. O'Neal vs. Boone, 82 111. 589. Guardian and Ward: Transactions l)etw^een, when assailed by ward, are presumptively fraudulent. Baum vs. Hartman, 226 111. 160. Habits : A presumption of due care may arise from proof of habits of care. C & A. Ey. Co. vs. Wilson, 225 111. 50; I. C. R. R. Co. vs. Prickett, 210 111.' 140; Parkin vs. C. P. & St. L-. Ry. Co., 149 App. 421, aiieago vs. Thomas, 141 App. 122; C. & E. I. R. E. Co. vs. Beaver, 199 111. 34; C. B. & Q. E. R. Co. vs. Gunderson, 174 111. 495. Health and Physical Condition: Presumption is that a person once able-bodied remains so. Draves vs. People, 97 App. 151. A w^oman is presumed to be capable of bearing children as long as she lives, unless from other matters than that of age. Hill vs. Spencer, 196 HI. 65, Heirship : The law raises no presumption that a person will die without leaving a child or children. Gannon vs. Peterson, 193 111. 372. Highways : If public has ceased to travel a road and has acquired another, abandonment of first may be presumed. Highway Comrs. vs. Kinahan, 240 111. 593. Homestead : — Investihire: Where the wife releases dower and homestead in conveyance by husband, if the money is used in purchase of new^ home, an intent is presumed to invest her with the same rights therein that she had in the old one. Nance vs. Nance, 28 App. 587. PRESUMPTIONS 1021 ' — Release: It will not be pre'^uiiled'tiifit a wk'ftarity deed con- tained a release of homestead. Mason vs. Truitt, 257 111. 18. — Excess Value: Tliere can be no presumption tliat value of premises occupied as homestead exceeds a thousand dollars. Muller vs. Conrad, 178 111. 276. — ■Abandonment: AVhere removal is shown, abandonment will be presumed unless contrary appears. Kloss vs. Wyzalek, 207 111. 328; Jackson vs. Sackett, 146 111. 646. Indebtedness : The law does not presume existence of written evidence of loan or indebtedness. i •,, Schell vs. Weaver, 225 111. 159. Identity : — Grantor and Grantee: Where deed is made to one of two persons bearing the same name, being father and son, conveyance is presumed to be to the father. Doty vs. Doty, 159 111. 46; Fyffe vs. Fyffe, 106 111. 646; Graves vs. Colwell, 90 111. 612. Where a conveyance is made to one bearing the same name as the prior owner and grantor thereof, in absence of evidence to con- trary, lie will be presumed to be the same person. Brown vs. Metz, 33 111. 339. It may be presumed that parties to conveyances are the same persons where initials of christian names are used and they are the initials of christian names given in full in other deeds of same premises, the surnames being the same. Skinner vs. Fulton, 39 111. 484; Ogdon vs. Bemis, 125 111. 105. — Surety: No presumption that judge approving conservators bond is also surety, though names are identical. Eieliardson vs. People, 85 111. 495. — Voter: There is no conclusive presumption of law that a signer of a petition and a trustee voting thereon are the same per- son, merely because they bear the same name. Ferguson vs. Trustees, 168 App. 225. Where a person of a certain name voted at an election, and, on contest of the election, a man of that name was called as a witness, who showed he was of foreign lurth. and had never been naturalized. it was presumed, as he was found in the same county, from the identity of the name, that the witness was the person who voted. Clark vs. Eobinson, 88 111. 492. — Parties to Suit: The identity of a person incurring a liabil- ity and the one being sued must be proven. AVhere that fact is shown, and defendant, being a woman, is sued under a different name, her marriage may be presumed, unless put in issue by a plea in abatement. Berber vs. Kertzinger, 23 111. 346. ■ — Witness: The identity of a witness with a person convicted of a crime is presumed, if the names are the same. Clifford vs. Pioneer Co., 232 111. 150. — Consignee: Where a person professing to be the consignee of an express package is identified by a trustworthy person, as the proper consignee, about the time it may reasonably be expected the consignee will call for the package, and he tells the person deliver- 1022 PRESUMPTIONS ing it to write his name in receipt book, such proof is sufficient to raise presumption of proper delivery to the true consignee, which the consignor, in action against carrier, must meet with a pre- ponderance of evidence. Ten Eyck vs. Harris, 47 111. 268. Infants : — Capacity: In civil case, presumption is infants do not know their rights. Tearney vs. Fleming, 48 App. 507. In criminal case, law presumes capacity at fourteen. Angelo vs. People, 96 111. 209. — Ordinary Intelligence: A child will be presumed to be possessed of ordinary capacity and intelligence of the average child of his years. McGuire vs. Gnthman Trust Co., 234 111. 125; Heiman vs. Kinnare, 190 111. 156. — Emancipation: Where minor brings suit for wages, after becoming of age, and father, testifying as witness for son, makes no claim to wages, emancipation will be presumed. Seott vs. White, 71 111. 287; Aulger vs. Badgley, 29 App. 336. — Coiitrihutory Negligence: Children under age of seven years are conclusively presumed to be incapable of contributory negli- gence. Hackett vs. Chi. City Ey. Co., 235 111. 116; Chi. City Ey. Co. vs. Tuohy, 196 111. 410; Chi. City Ey. Co. vs. Gregory, 58 111. 226. Inn-Keepers : A presumption of negligence arises when luggage is handed to an authorized employe or agent of the hotel, for custody, and can- not be afterward found or heard of. Gross vs. Saratoga Hotel Co., 176 App. 160. Negligence is not to be presumed from failure of guest to ask for baggage for several day after its reception by inn-keeper. Eden vs. Dray, 75 App. 102. Innocence : Presumption of innocence attends the accused at every stage of the proceeding until the jury agree upon a verdict. People vs. Ambach, 247 HI. 451; Flynn vs. People, 222 111. 303. When a person in a civil case is charged with a criminal offense he is entitled to the presumption of innocence accorded him under criminal prosecution. Thompson vs. Cornwell, 133 App. 261. Insolvency : Is not presumed, but must be proven. Bittinger vs. Kasten, 111 111. 260; Tunison vs. Chamblin, 88 111. 378; Eogers vs. Dimon, 106 App. 201. Insurance : — Benefit Society: Good standing of member, once shown to exist, presumed to continue. Eoyal Circle vs. Achterrath, 204 111. 549. — Cause of Death: In absence of proof, natural or accidental causes presumed. Amer. Home Circle vs. Schneider, 134 App. 600; Knights Templar vs. Crayton, 209 111. 550. PRESUMPTIONS 1023 — By-Laws : ^Members of society are presumed to know the laws of such society. Benes vs. Supreme Lodge K. O. IL, 231 111. 134; Quinn vs. No. Am. Union, 162 App. 319. — Death Benefit: Amount beneficiary presumed entitled to recover presumed to be full amount of certificate. Pegram vs, Mut. Prot. League, 159 App. 214. — Accident Policy: Where evidence shows that insured had suffered an injury which caused his death, and there is no proof in the record from which it can be determined whether injury was accidental or self-inflicted, presumption is that injury was accidental. Wilkinson vs. Aetnae Ins. Co., 240 111. 205; F. & C. Co. vs. Weise, 182 III. 496. Intent : A sane man is presumed to contemplate the natural and probable consequences of his own acts. Crosby vs. People, 137 111. 325. Accused presumed only to have intended the natural conse- quences of his act. Lane vs. People, 143 App. 571. Interest : Where no specific rate is mentioned, it is presumed that legal • rate was intended. Knobloeh vs. Eomies, 34 App. 577; Prevo vs. Lathrop, 2 111. 304. Interpreter : There is no legal presumption that because interpreter has testi- fied for one party that he is thereby so far biased or prejudiced as not to be trusted to fairly interpret between the court and another witness. C. & A. Ey. Co. vs. Schenck, 131 111. 283. Intestacy: It will be presumed that a person dies intestate. Sielback vs. Grotham, 248 111. 435; Schmidt vs. Brown, 226 111. 590; Lyon vs. Kain, 36 111. 362 ; Whitham vs. Ellsworth, 259 111. 243. But where will established, it will be presumed he intended by his will to dispose of all his property and leave no part intestate estate. Eyer vs. Williamson, 256 111. 540 ; Karsten vs. Karsten, 254 111. 480 ; North. Trust Co. vs. Wheaton, 249 111. 606; Felkel vs. O'Brien, 231 111. 329; Lewis vs. Sedgwick, 223 111. 213; Welsh vs. Shade, 163 App. 523. This is only a presumption and cannot be permitted to overcome the express language of the will. Jacobs vs. Detz, 260 111. 98; Thomas vs. Thomas, 229 111. 277. Judicial Sales : It is presumed that in a judicial sale the purchaser will examine the title with the same care that a person does who receives a con- veyance of land, as the rule of caveat emptor applies to sales of this character. L. & N. By. Co. vs. I. C. E. E. Co., 174 111. 448. Judgments : — Regularity: The presumptions of law are in favor of the 1024 PRESUMPTIONS correctness of a judgment of a common law court of general jur- isdiction. City of Virginia vs. Hall, 96 111. 278; Kenny vs. Greer, 13 111. 432; Newconib vs. County of Champaign, 145 App. 561. — Probate Court: The presumptions which aid judgments of other courts of record apply in part to those entered in courts of probate. People vs. Medart, 166 111. 348; Chi. Title & Trust Company vs. Brown, 183 111. 42. — County Court: The county court is a court of record, and has general jurisdiction over a certain class of sulgects. It is a court of limited, but strictly speaking, not a court of inferior jurisdiction. Boyd vs. Kimmell, 244 111. 545. . .m -, — Date: Where record shows it was written up on day of rendition of judgment, it will import verity and cannot be con- tradicted by parol. Lawyer vs. Langhans, 85 111. 138. — Return of Process: Every presumption is in favor of return of process. Kochman vs. O'Neill, 202 111. 110; Owens vs. Eanstead, 22 111. 161. Where a court of general jurisdiction adjudicates a cause, the presumption is that it had jurisdiction of the parties, unless there 'is something in the record affirmatively showing contrary. The fact that the record is silent on that ciuestion is not enough to overcome this presumption. -r Cigler vs. Keinath, 167 App. 65 ; Wing vs. Little, 163 App. 468. ^ If it appear that service is made in a particular manner, no other mode of service can be presumed, since this would be a contradic- tion of the record. ''^ Forest vs. Fey, 218 111. 165; Swearingen vs. Guliek, 67 111. 208. -.r — Jurisdiction: Nothing is presumed to bo out of jurisdiction of superior courts, or courts of general jurisdiction. Swearingen vs^ Guliek, 67 111. 208. ■+ r.^irnrtpf, — Courts of Record: All presumptions aid and come to the support of judgment rendered in open court by courts of record. Walker vs. Newman, 146 App. 450. tff?T ,: — Judgment hy Confession: Same presumption will be in-{ dulged in favor of judgment by confession entered in term time upon a cognovit as is indulged in the case of original judgments of courts of general jurisdiction. -". •"'-' i^wtT ..■ State Bank 'vs. Barnett, 151 App. 79. — Federal Court: In state court, presumptions in favor., of validity of. '■' ''"^ ^^^^I'^mi/.M-xq « vino ?i «fit ' Eoss-Lewin vs. Goold, 211 111. 384; S. C, 113 App. 499. — Foreign Judgments: A presumption of jurisdiction obtains where a court of general jurisdiction proceeds to adjudicate a cause. Forest vs. Fey, 218 111. 165. Jurisdiction : — Supreme Court of Another State: Jurisdiction will be pre- sumed. Van Matre vs. Sankey, 148 111. 536. — Court of General Jurisdiction: A presumption of jurisdic- PRESUMPTIONS 1025 tion obtains where a court of general jurisdiction proceeds to ad- judicate a cause. Forest vs. Fey, 218 111. 165. Jurisdiction to enter a decree is presumed upon collateral attack. Castle vs. Joseph, 184 111. 378. Jurisdiction of parties and regularity of proceeding is presumed after lapse of twenty years after administrator's sale. Robb vs. Howell, 180 111. ISO; Nickrans vs. Wells, 161 111. 76. — Inferior Tribunal: No presumption or intendments are made in favor of jurisdiction of inferior tribunals. People vs. Seelye. 146 111. 180; Anderson vs. Gray, 134 111. 550; Cava- naugh vs. Morris, 160 App. 55. Justice of Peace: — Jurisdiction: Where a docket of a justice shows that the court has jurisdiction of the person and subject matter, nothing will be presumed to be out of the jurisdiction of justice which does not affirmatively appear so. Thatcher vs. Maack, 7 App. 635. — Proper Entries: It will be presumed that justice who has taken acknowledgment of a chattel mortgage has entered in his docket the inventory required by law. Harlow vs. Birger, 30 111. 425. — Default Judgment: In absence of an affirmative showing that justice of peace did not wait the full hour for defendant to appear it will be presumed that he did his duty in that respect. Wingo vs. Ramsey, 149 App. 634; First Nat. Bank vs. Beresford, 78 111. 391. Knowledge : — Of Law: Every person is presumed to know the general law of the state wherein he resides. Russell vs. Rumsey, 35 111. 362; Marshall vs. Cook, 38 111. 44, Rules and regulations of boards of health are not public laws w^hich are conclusively presumed to be known. People vs. Tait, 261 111. 197. — Contents of ^yill: Testator is presumed to have understood the nature and contents of his will. Jones vs. Abbott, 235 111. 220; Todd vs. Todd, 221 111. 410; Compher vs. Browning, 219 111. 429. Irrespective of his ability to write, Doran vs. Mullen, 78 111. 342. And that testator knew the law. Nangle vs. Mullanny, 113 App. 547; Greenwood vs. Greenwood, 178 111. 387, — Promissory Notes: Presumption that a party signing a note knew its contents before signing is not conclusive. Kingman & Co. vs. Reinmer, 166 111. 208. — Customs: A party dealing in a particular market is pre- sumed to know all customs of such market bearing upon the trans- action in which he is engaged. Cothran vs. Ellis, 107 III. 413. One engaged in a particular trade is presumed to know the pre- valent customs of that trade. Deschler vs. Beers, 32 111. 368; Hinckley vs. Kersting, 21 111. 247. When a carrier has an established custom, one who has been in Ev.— 65 1026 PRESUMPTIONS the habit of shipping over the road of such carrier will be pre- sumed to have knowledge of such custom. I. B. & W. Ey. Co. vs. Murray, 72 111. 128. — Danger: Knowledge of servant of dangerous condition is not presumed, as it is not presumed that any one will knowingly incur physical pain or death. C. & E. 1. K. E. Co. vs. Hines, 132 111. IGl; C. & E. I. Ey. Co. vs. Heery, 203 111. 492. Lands : Quarter section presumed to contain one hundred and sixty acres, unless the contrary is shown in the particular instance. Doyle vs. Wiley, 15 111. 576. Landlord and Tenant: Mere demand for possession does not raise presumption that rent is unpaid. Streit vs. Fay, 230 111. 319. A lessee is presumed to have known provisions of building ordi- nance as well as lessor. Kiernan vs. Bush Temple Co., 229 111. 494. Larceny : The unexplained possession of property recently stolen is prima ■facie evidence that party in possession committed the larceny. People vs. Everett, 242 111. 628; People vs. Deluce, 237 111. 541; WUliams vs. People, 196 111. 173; Cf. Miller vs. People, 229 111. 376. Lease : Joint lessees will be presumed in absence of evidence to the contrary to shai'e in the benefits of the lease. Miller vs. Mathias, 145 App. 465. Legislative Acts and Journals: It is presumed acts are valid and within power of legislature. People vs. McCullough, 254 111. 9; People vs. Joyce, 246 111. 124. Presumption is that legislature intended to obey statute. Eobson vs. Doyle, 191 111. 566. Presumption is that legislature knew its statutory limitations of power. People vs. Ennis, 188 111. 535. Legislature is presumed to enact laws with knowledge of prin- ciples of statutory construction and interpretation as adopted by courts and declared by the legislation. People vs. Hinrickson, 161 111. 223. It is presumed that a law, certified to by secretary of state, is in form in which it was passed by the legislature. Erford vs. City of Peoria, 229 111. 546; I. C E. E. Co. vs. Wren, 43 111. 77. Legitimacy: A child born in lawful wedlock is presumed legitimate. Zackman vs. Zackman, 201 111. 380; Bobinson vs. Euprecht, 191 111. 424; Smith vs. Henlein, 174 111. 184. And this presumption extends to child born in wedlock, even though parents are living apart by mutual consent. Drennan vs. Douglas, 102 111. 341. Letters : — Date: Presumed to have been written at date appearing at top of letter. Dowie vs. Sutton, 126 App. 47. PRESUMPTIONS 1027 — Receipt of: A letter, if sent by post, properly stamped and addressed, will be presumed to have been received by the person to whom it was directed, if living at such point and usually receiv- ing mail there, Clark vs. People, 224 111. 554; Witson vs. Ford, 190 111. 614; Ashley Wire Co. vs. 111. Steel Co., 164 111. 149; Dennison vs. Taylor, 142 111. 45; E. L. Assn. vs. Frommhold, 75 App. 43; XII 111. Notes 478, § 39. But there is no presumption of the delivery of a single letter to both of two persons to whom it was directed, unless it be a delivery by way of partnership or other agency. Dennison vs. Taylor, 142 111. 45. Libel and Slander: — Malice: AA^here words, actionable in themselves, are not spoken under privileged circumstances, malice will be presumed. Gilmer vs. Eubank, 13 111. 271; Conwisher vs. Johnston, 127 App. 607; Flagg vs. Eoberts, 67 111. 485; Stephens vs. News Co., 164 App. 6. But malice is not presumed from merely telling what another has said. Hill vs. Leffler, 133 App. 266. — Character: Plaintiff's character is presumed to be good until attacked. Stowell vs. Beagle, 79 111. 525. Loans : The law does not presume existence of written evidence of loan. Schell vs. Weaver, 225 111. 159. Sale of land by devisee of life estate and subsequent loan of money makes prima facie case that money loaned was derived from sale. Walker vs. Pritchard, 121 111. 221; Stephenson vs. McGlintock, 141 111. 604. Love of Life : The presumption of law is that all men are possessed of the love of life. C. & A. E. R. Co. vs. Wilson, 225 111. 50. And_ that person did not voluntarily incur danger or risk of death. Chi. Term. Co. vs. Roddick, 131 App. 515. And that a person will, in presence of danger, act in accordance with instinct of self-preservation. Collison vs. I. C. E. E. Co., 239 111. 532; Newell vs. C. C. & St. L. Ey. Co., 261 111. 505. Malicious Mischief: Evidence tending to show that act was done under hona fide claim of right repels presumption of malicious intent. Sattler vs. People, 59 111. 68. Malicious Prosecution : ]\Ialice may be presumed from want of probable cause. McElroy vs. Catholic Press Co., 254 111. 290; Treptow vs. Mont- gomery Ward Co., 153 App. 422 ; Tumalty vs. Parker, 100 App. 382; Montrose vs. Bradsby, 68 111. 185; Eoss vs. Innis, 35 111. 487. But absence of probable cause cannot be presumed from malice. Mitchison vs. Cross, 58 111. 366; Eoss vs. Innis, 35 111. 487. 1028 PRESUMPTIONS Market Price: Where the market price of grain is shown on a day named, it will be presumed to continue to the next day. Nash vs. Classon, 55 App. 356. Marriage : — In General: There is no presumption that a woman is mar- ried even though she may long have been of marriageable age. Erskine vs. Davis, 25 III. 228. Subsequent deed reciting grantor a bachelor, while not conclu- sive, affords presumption that grantor was an unmarried man when former deed was executed. Gibson vs. Brown, 214 111. 330. It will be presumed that a married Avoman resident of a sister state is subject to the disabilities imposed by the common law with respect to capacity to contract. Forsyth vs. Barnes, 228 111. 326. — Continuance: Relation once being shown, presumption at- taches that it continues. > Stantenborough vs. Eammel, 123 App. 487. — Ceremony Proven: Where the celebration of a marriage is shown, its validity is presumed. Winter vs. Dibble, 251 111. 200; Keifsehneider vs. Eeifsehneider, 241 111. 92; Potter vs. Clapp, 203 111. 592; XII 111. Notes 396, §21. The rule is same in prosecution for bigamy. Barber vs. People, 203 111. 543 ; SoLel vs. People, 212 111. 238. So it will not be presumed on account of a common law marriage, that a subsequent ceremonial marriage was a bigamous one, since the presumption is in favor of innocence. Murphy vs. People, 213 111. 154. It is presumed that parties were competent to contract. Cartwright vs. McGowii, 121 111. 388. — CoJiahiiaiion: Where persons live and cohabit together as husband and wife, and are generally reputed to be husband and wife, there is a presumption that they have been married. Land vs. Land, 206 111. 288; Hooper vs. McCaffery, 83 App. 341. Master and Servant: The master is presumed to use proper care in the selection of his servants. C. & E. I. E. E. Co. vs. Myers, 83 App. 469. The employe has a right to presume that the master will exercise care and prudence to prevent him from being exposed to unreason- able risks or dangers. McCulloch vs. 111. Steel Co., 243 111. 464. When injured employe has been employed only a few da^'s and had not been called upon before to do tlie work in which he Avas injured, it Avill not be presumed, as a matter of laAV, that he assumed the risk. Sullivan vs. Eefining Co., 147 App. 227. Master in Chancery: Presumed to consider only relevant and admissible evidence. Allison vs. Perry, 130 111. 9. PRESUMPTIONS 1029 Mortgages: n.^l/r Law presumes a party intends to keep mortgage alive when essential to his protection. Moffett vs. Farwell, 222 111. 543. The law presumes that every man examines title to real estate before purchasing or receiving a mortgage. Campbell vs. McCahan, 41 111, 45. Motives : Where two motives exist for an act done, the one lawful and the other unlawful, it is presumed that the lawful motive con- trolled. Speck vs. RUlman Car Co., 121 111. S3. Advice between parent and child, as to domestic affairs, pre- sumed to be on good motive. Huliug vs. Huliiig, 32 App. 519. Municipal Corporations : — Legal Existence: Presumption indulged in favor of legal existence, after long continued use of corporate powers with acqui- escence of public. People vs. Pike, 197 111. 449. — Charter Power: No presumption that particular charter power of municipality has been exercised. Diipont vs. Sanitary District, 203 111. 170. Names : It will be presumed that the initial of the christian name is an abbreviation of the full name. Slick vs. Brooks, 253 111, 58; Lee vs. Mendall, 40 111. 359. Negligence : — Pcrformanee of Duty: There is a presumption of law that every person will perform the duty enjoined by law or imposed by contract, and anticipation of negligence in others is not a duty which the law imposes. This presumption is not conclusive and a party cannot regulate his conduct solely upon the presumj)tion that others will perform duties imposed upon them. Scblauder vs. C. & S. Trac. Co., 253 111. 154. Nor can a person presume a fact against his own knowledge. Collison vs. I. C. E. E. Co., 239 111. 532; Galesburg vs. Hall, 45 App. 290. — Fact of Accident: Negligence will not be presumed from mere happening of an accident. Barnes vs. Danville St. Ry. Co., 235 111. 566; Hart vs. Washington Park Club, 157 111. 9. Negligence will not be presumed where nothing is done out of the usual course of business, unless that course is in itself improper. C. & E. I. E. R. Co. vs. Eeilly, 212 111. 506. Where the fact is not susceptible of direct proof, the presump- tion of law is that a person did not voluntarily incur the danger or risk of death. Ry. Co. vs. Eeddick. 131 App. 515. No presumption of negligence on part of owner of premises arises from fact of accident where plaintiff was working for an independ- ent company, and wire causing death was so erected by an inde- pendent company. Haugh vs. Eyerson & Sons, 171 App. 414, 1030 PRESUMPTIONS "When car or train of carrier collides with some object under its control, presumption of negligence arises. Hickey vs. Chi. City Ky. Co., 148 App. 197. The explosion of a steam boile-r, causing injury to one law- fully present who sustained no relation of employment or duty to the company, or individual operating and controlling the boiler, is prima facie evidence of negligence, and places burden upon such company or individual of showing the exercise of care and diligence. Morris Co. vs. Burgess, 44 App. 27. Such presumption is not conclusive but is only prima facie evi- dence of negligence and may be rebutted. Schaller vs. Ind. Brew. Assoc, 225 111. 492. — Incompetency of Employe: The mere happening of an acci- dent will not raise presumption of incompetency of employe. Smith vs. C. P. & St. L. E. R. Co., 236 111. 369; M. & O. Ry. Co. vs. Godfrey, 155 111. 78. — Res Ipsa Loquitor: Negligence is not be presumed, j^'et the injury itself may afford sufficient prima facie evidence and the presumption of negligence may be created by the circumstances under which the injurv occurred. Barnes vs. Danville Ey. Co., 235 111. 566; CM. City Ey. Co. vs. Barker, 209 111. 321. When an injury is shown aiid that it arose from something with- in the control of the carrier or from some danger which it was his duty to anticipate and provide against, a presumption of negligence on the part of the carrier or his servants arises. The presump- tion does not arise from the injury itself, but from the injury and the cause or source of it, but when the injury is proven and the cause connected with the carrier, a prima facie case is made out for the plaintiff. Vischer vs. N. W. El. R. R. Co., 256 111. 572. Whenever doctrine of res ispsa loquitor is invoked, it raises but a presamption which yields readily to evidence. Garner vs. Chi. Trac. Co., ISO App. 149. Negligence is never presumed, but the circumstancesi surround- ing a case where the maxim res ipsa loquitor applies amount to evidence from which the fact of negligence may be found. • Chi. Un. Trac. Co. vs. Giese, 229 111. 260; Devaney vs. Otis El. Co., 251 111. 28. The mere happening of an accident, together with the exercise of ordinary care by plaintiff d'oes not raise presumption of negli- gence on part of carrier, but the presumption does arise where the accident is shown to proceed from an act of such character that when due care is taken in its performance no injury ordinarily results therefrom, or where it is caused by the mismanagement of a thing over which the carrier has either control or for the man- agement of which it is responsible. Barnes vs. Danville St. Ry. Co., 235 111. 566. By the law railroads are bound to the utmost diligence and care and are liable for slight negligence. Proof that plaintiff was a passenger, the accident, and the injury make a prima facie case of PRESUMPTIONS 1031 negligence. This is done, and the burden of explaining is thrown upon defendant. Chicago City Ey. Co. vs. Carroll, 206 111. 318: Hobson vs. St. L & P. Ey. Co., 180 App. 84. Negotiable Instruments : In an action on a note the execution of which is not denied a presumption exists that the same was regularly issued for a valu- able consideration and that the payee is a bona fide holder and en- titled to recover the full amount thereof. Goding vs. The McArthur Co., 181 App. 373. It will be presumed that an undated indorsement was made at date of note. DeClerque vs. Campbell, 231 111. 442; Gridley vs. Capen, 72 111. 11. And before note was delivered. White vs. Weaver, 41 111. 409. Notaries Public: Where jurat has no venue, presumption is that notary admin- istered oath within his own county. Hertig vs. People, 159 111. 237. Certificate of notary as to when affidavit to petition for change of venue is sworn to is presumed correct, in absence of contrary showing. N. Chi. St. Ey, Co. vs. Leonard, 167 111. 618. Notary of sister state will not be presumed to have authority to administer oaths. DesNovers Shoe Co. vs. First Nat. Bank. 188 111. 312; Trevor vs. Colgate, 181 111. 129; Ferris vs. Com. Natl. Bank, 1.58 111. 237. But is presumed to have authority to take acknowledgments. Eamsey vs. People, 197 111. 594; Harding vs. Curtis, 45 111. 252. Notice : After a party has once been brought into court, the presumption is that he is present and cognizant of every step taken in the case until it is terminated, unless considerable time has elapsed with- out taking any steps in the case. Petrie vs. People, 40 111. 334; Berlison vs. People, 51 App. 102. Novation : Not presumed. Potter vs. Engine Co., 110 App. 420; Netterstrom vs. Gallistel, 110 App. 352. Officers : — Duty: The presumption always is that public authorities do their duty. State vs. I. C. E. E. Co., 246 111. 188 ; Citv of Peoria vs. Cent. Natl. Bank, 224 111. 43; Lyman vs. City of Chicago, 211 111. 209; Hogue vs. Corbett, 156 111. 540; Woodward vs. Donovan, 167 App. 503; People vs. Lyons, 168 App. 396; People vs. Walker, 179 App. 455 ; XII 111. Notes 476, § 24. — Eligihility: The election of one to a particular office raises a strong presumption of his eligibility. Smith vs. People, 44 111. 16; People vs. Connell, 28 App. 285. Official Business : Presumption is. in absence of contrary showing, that official business has been transacted by board at regular or special meeting. Eobinson vs. School Directors, 96 App. 605. 1032 PRESUMPTIONS Ordinances : — Existence of: Book purporting to be published by authority of council is presumptive evidence of existence of ordinance. Prairie Du Rocher vs. Milling Co., 248 111. 57; C. & A. Ey, Co. vs. Wilson, 225 111. 50. f Presumption is that ordinance, shown to have been passed, is in force, unless contrary appears. at. L. A. & T. H. Ey. Co. vs. Eggman, 161 111. 155; Earlville VB. Eadley, 141 App. 359; Goetz vs. Koehler, 20 Apj). 233. — Validity: Presumption is always in favor of validity of an ordinance. City of Chicago vs. Shaw Livery Co., 258 111. 409; Springfield vs. Postal Tel. Co., 253 111. 346; People vs. C. T. West. R. E. Co., 232 111. 292; Harmon vs. City of Chicago, 140 111. 374; Conrad vs. Springfield Con. Ey. Co., 145 App. 564. — Violation: Of ordinance raises presumption of negligence. C, & E. I. E. R. Co. vs. Crose, 214 111. 602; Southern Ey. Co. vs. Drake, 107 App. 12; Winn vs. C. C. C. & S. L. Ey. Co., 239 111. 132; Glaza vs. G. N. M. Co., 167 App. 238 ; C. & E. 1. E. E. Co. vs. Moehell, 193 111. 208. But such presumption is not conclusive. C. & W. I. E, E. Co. vs. Zerbe, 110 App. 171. Ownership : Where a promissoiy note is found in the possession of the payee, uncancelled, there is a presumption that he is the owner, and that it is unpaid. Lewis vs. Lewis, 150 App. 354. Possession of a negotiable note is prima facie evidence of owner- ship by possessor. Henderson vs. Dennison, 157 111. 379; Henry vs. Eddy, 34 111. 508; Burnap vs. Cook, 32 111. 168. And this though note be unindorsed. Martin vs. Martin, 174 111. 371. Party in possession of personal property is presumed to be the owner of it. Gilbert vs. Natl. Cash Eegister, 176 111. 288; Comer vs. Comer, 120 111. 420; Peters vs. Smith, 42 111. 417; Downey vs. Arnold, 97 App. 91; Johnson vs. Milmiue, 150 App. 208; XIV 111. Notes 150, §27. It is presumed that a claimant in possession of real property, holds the title thereto. Harland vs. Eastman, 119 111. 22; Metier vs. Miller, 129 111. 630. But it is presumed possession is in subordination to title of owner when entry is made with consent of owner, and subservient to his claim of title. Timmons vs. Kidwell, 138 111. 13. Possession of certified copy of a foreign judgment affords no pre- sumption of ownership. Bell vs. Farwell, 189 111. 414, Name on wagon presumes ownership. Schweinferth vs. Dover, 91 App. 319. Parent and Child: — Custody of Child: Father is presumed to be entitled to cus- tody of child. Sullivan vs. People, 224 Til. 468. — Compensation for Services: Where child remains with parent after arriving at majority, and remains in the apparent relation PRESUMPTIONS 1033 as when a minoi', the presumption is that parties do noi contem- plate payment of wages for services. Switzer vs. Kee, 146 111. 577; Neisli vs. Gannon, 198 111. 219; Schwachtgen vs. Schwachtgeu, 65 App. 127. Partnership : — Compensation for Services: The presumption is that each partner renders his services without sahiry. Street vs. Thompson, 229 111. 613; Ligare vs. Peacock, 109 111. 94. — Interest of Partners: Presumed to be equal. Hendrickson vs. Eeinbach, 33 111. 299; Farr vs. Johnson, 25 111. 522; Eoach vs. Perry, 16 111. 37. — Property: Presumed to belong to the tirm. Laswell vs. Eobbins, 39 111. 210. — Books of Account: As between partners, each partner is pre- sumed to have knowledge as to the partnership books, and the books are presumed to be correct. Stuart vs. McKichan, 74 111. 122; Donaldson vs. Donaldson, 142 App. 21. — Existence of: The use of the firm name, coupled with fact that each gives his personal attention to the business, raises pre- sumption of partnership. Hang vs. Haug, 193 111. 645. Participation in profits raises presumption of partnership. Miller vs. Meers, 155 111. 284; Lockwood vs. Doane, 107 111. 235; Straus vs. Kohn, 83 App. 497. Party Walls : Promise of contribution to cost of erecting party Avail may be implied from circumstances. Evans vs. Howell, 211 111. 85; Huck vs. Flentye, 80 111. 258. Pajrment : — Lapse of Time: Presumption of payment may arise from, independent of Statute of Limitations. After lapse of twenty years debts of whatever degree are presumed satisfied. Pagan vs. Bach, 253 111. 588; Kichards vs. Carter, 201 111. 165; Luther vs. Crawford, 116 App. 351. But not of mortgage until time of limitation has expired. Locke vs. Caldwell, 91 111. 414. On foreclosure, absence of coupon interest note unaccounted for raises a prima facie presumption of payment. Merrich vs. Hulbert, 17 App. 90. — -Possession: Of note by maker, raises presumption of pay- ment. Shippen vs. Whittier, 117 111. 282; Tedens vs. Schumers, 112 111. 263; Allen vs. Sawyer, 88 111. 414. But does not arise where debtor had means of obtaining pos- session or cancelling the obligation other than by paying it. Grimes vs. Hilliary, 150 111. 141; Teeter vs. Poe, 48 App. 158. — Application: Presumed to apply to debts first in point of time. Sprague vs. Hazenwinkle, 53 111. 419. — Time: When no time is set, presumption is that payment is to be made upon delivery of property. Ainsworth vs. Koush, 109 App. 299. 1034 PRESUMPTIONS — • Giving of Note: The giving of a promissory note for an open account is prima facie a payment of the account. Hoodless vs. Reid, 112 111. 105. Principle has no application to the giving of note for borrowed money. Hoodless vs. Eeid, 112 111. 105. And is a question of intention. Eayfield vs. Tiueher, 180 App. 454. Penalties : All facts necessary to constitute an afifirmative case, must be set out and proven. No intendments are allowed in favor of the people or the person for whose benetit the suit is brought. People vs. Nesler, 145 111. 150; Gilbert vs. Bone, 79 111. 341; Peo- ple vs. Mut. Ins. Co., 72 App. 569. Perjuries : Proof that defendant was sworn as witness raises presumption that a binding oath was administered to him. Green vs. People, 182 111. 278. Physicians and Surgeons: — Right to Practice: Betw^een third persons, the question of the physician's qualification arising only collaterally, his right to practice is presumed. Chi. City Ey. Co. vs. Cotton, 140 111. 486 ; City of Chicago vs. Wood, 24 App. 40. And in suit for professional services, right to practice will be presumed. Co. of Jo Daviess vs. Staples, 108 App. 539; Good vs. Lfashear, 99 App. 653. But in prosecutions on behalf of public rule is otherwise. Williams vs. People, 121 111. 84; People vs. Koehler, 146 App. 541. — Necessity for Visits: Court will presume all professional visits were necessary. Ebner vs. Mackey, 186 111. 297; Gibson vs. O'Gara Coal Co., 151 App. 424. Plats: Record presumed to be correct. City of Peoria vs. Cen. Natl. Bank, 224 111. 43. Pledge : Presumption arises delivery was not intended to operate as im- mediate and absolute discharge of debt. Wilhelm vs. Schmidt, 84 111. 183. Possession : — Fruits of Crime: Possession of propery recently stolen is prima facie evidence of guilt of possessor. People vs. Everett, 242 111. 628; People vs. Deluce, 237 111. 541; Williams vs. People, 196 III. 173. But possession immediately after theft, in order to create such presumption, must be exclusive and such as to indicate that pos- sessor took the property. Miller vs. People, 229 111. 376; Watts vs. People, 204 111. 233. — Feal Property: It is presumed that a claimant of real prop- erty, who is in possession, holds the legal title thereto. Glos vs. Ptacek, 226 111. 188; Glos vs. Huey, 181 111. 149; Harland vs. Eastman, 119 111. 22. PRESUMPTIONS 1035 In action of ejectment, pi-esumption of ownership arising from possession under claim of title is sufficient prima facie as against mere intruders. Coombs vs. Hertig, 162 111. 171. There may be a presumption of continuance of possession but not of prior possession. Glos vs. Kemp, 192 111. 72; Wliite vs. White, 105 111. 313; Burge- ner vs. Leppold, 128 App. 590; Eengel vs. Schoden, 178 App. 151. ^ And where conveyance is shown, it is presumed grantee con- tinued in same possession as grantor. Sholl vs. German Coal Co., 139 111. 21. One who is in the actual and peaceable possession of lands will be presumed to be rightfully in possession. Hammond vs. Doty, 184 111. 246; Fitzgerald vs. Quinn, 165 111. 354; Gosselin vs. Smith, 154 111. 74. — Deeds: When a deed, duly executed, is found in possession of grantee named therein, it is presumed to have been properlj^ delivered. Sc'liroeder vs. Smith, 249 111. 574; Ingram vs. Swearingen, 198 111. 437. — Insurance Policy: Possession of life insurance policy raises presumption of delivery and acceptance. Richardson vs. n! W. M. L. Ins. Co., 143 App. 279. — Ownership: Party in possession of personal property is pre- sumed to be owner of it. Gillett vs. Natl. Cash Register, 176 111. 288; Downey vs. Arnold, 97 App. 91. And it is sufficient evidence of o^vnership in prosecutions for robbery. Howard vs. People, 193 111. 615; Bow vs. People, 160 111. 438. The presinnption that apparent head of family is owner of household goods is rebuttable. Gre^nberg vs. Stevens, 212 111. 606. Presumption of ownership does not apply in favor of one whose possession is of a subordinate character, as that of an avowed agent, the possession in that case being that of the employer. Comer vs. Comer, 120 111. 420. Possession of a negotiable note is prima facie evidence of owner- 'ship in possessor. Henderson vs. Davisson, 157 111. 379; Hall vs. First Natl. Bank, 133 111. 234. And this though note be unindorsed. Martin vs. Martin, 174 111. 371. When a note past due is in the hands of the maker, it will be presumed that it has been paid. Shippen vs. Whittier, 117 111. 282; Zimpleman vs. Yeeder, 80 111. 613; Teeter vs. Poe, 48 App. 158; Douglas vs. Pfeffer, 46 111. 102. And so when found in possession of payee, uncancelled, pre- sumption is that it was unpaid. Lewis vs. Lewis, 150 App. 354; Ritter vs. Schenk, 101 111. 387. Power of City: To establish dock line on a river does not raise presumption that same has been established. DuPont vs. San. Dist., 203 111. 170. 1036 PBESUMPTIONS Power Over Estate : Where party has two or more powers over same estate and does an act without any reference to either power, such act will be pre- eumed an execution of power which will support the act. GriffiB vs. Griffin, 141 111. 373. Proceeding- at Law : Presumption is in favor of regularity of. People vs. Drainage Conirs., 235 111. 278. Purpose : The building of a bridge over a watercourse crossed by right of way raises no presumption that it was built to permit the passage of stock. C. B. & Q. R. R. Co. vs. Hammond, 210 111. 187. Principal and Agent : — Agency: Evidence that one openly acts for another under circumstances implying knowledge on part of supposed principal, makes prima facie case of agency. R. R. T. & St. L. R. R. Co. vs. Wilcox, 66 111. 417; Dow vs. Duncan, 17 111. 272. Agency of person in legal proceedings is presumed to continue throughout proceedings. Parker vs. Crilly, 113 App. 309. — Good Faith : Where an agent is contracting in his own in- terest and to the probable detriment of his principal and by the contract he is agreeing to pay his own debt to the party with whom he is dealing out of the money or property of his principal, it will not be presumed that the agent will transmit to his principal full particulars' of such a transaction or that the principal authorized such a transaction. Leigh vs. Amer. B. B. Co., 205 111. 147; Grollman vs. Montgomery Ward & Co., 181 App. 598. — AutJwrity of Agent: No inference of agent's authority to sign a contract can be drawn from evidence that agent had, in presence of principal, on two occasions, drawn and signed con- tracts embodying terms made by principal. Fadner vs. Hibler, 26 App." 639; Darst vs. Doon, 38 App. 397. Authority of agent to buy goods cannot be presumed from authority to sell. Thurber vs. Anderson, 88 111. 167. Presumptions relating to the authority of agents of corporations are no different than those relating to authority of agents of in- dividuals when circumstances are the same. Mer. Bank vs. Nichols & Co., 223 111. 41. Public Documents : Presumed to be in possession of holder of office. Stow vs. People, 25 111. 81. Quo Warranto : Laches cannot be presumed. Kamp vs. People, 141 111. 9. Recognizance : Is of itself evidence that it was taken under the direction of the court. Chumasero vs. Peojjle, 18 111. 405. PRESUMPTIONS 1037 A recognizance, when filed, becomes a matter of record, and the presumption from it is that the charge was properly preferred and investigated, and the proper decision made before it was en- tered into and acknowledged. Shattuck vs. People, 5 111. 478. Records : Presumptions cannot be permitted to contradict express findings of record. Seilbaeh vs. Grothman, 248 111. 435. Receipts : Presumed true. House vs. Beak, 43 App. 615. There is no presumption of law that a receipt properly and fully expresses the intention of the parties ; the only presumptions that could or would arise from the contents of the writing are presump- tions of fact. Herkimer vs. Nigh, 10 App. 372. Recordation : It is presumed that public officials who recorded instrument recordlouiger vs. iSloniger, 161 111. 270. In construing a will, it is presumed that every w^ord qualifying another word is intended by the testator to have some meaning, and the ordinary meaning of the qualifying word is to be given to it unless otherwise required by the context. Tea vs. Milieu, 257 111. 624. — Due Execution: AVliere attestation clause is perfect and formal, and recites that all statutory requirements have been com- plied with, and is signed by attesting witnesses, the presumption of regularity and compliance with statutory requirements arises. Moore vs. Moore, 211 111. 268; Hobart vs. Hobart, 154 111. 610. But where attestation clause does not recite that testatrix was present, there is no presumption that she was so present. Schofield vs. Thomas, 2S6 lU. 417. An holographic will is presumed to have been executed volun- tarily and without aid. Hannant vs. Penstone, 255 111. 274. — Lost Will: Where a last will and testament, after its execu- tion, is retained by the testator and kept in his possession, and later, after his death, it cannot be found, the presumption is that the testator destroyed it animo revocandi, and it will not be pre- sumed that it has been destroyed by another person without his knowledge or authority, for that would be presuming a crime. St. Mary's Home vs. Dodge, 257 III. 518; Stetson vs. Stetson, 200 111. 601. — MuUliated Will: Where a will is found in a mutilated con- dition, in possession of testator, after latter 's death, and there is no evidence fixing the spoliation on any other person, the court will presume that it was done by the testator with the intention of cancelling the will. Marshall vs. Coleman, 187 111. 556. Where will is in possession of testator up to the time of his decease, it is presumed that marks and erasures thereon were those of testator. Pyle vs. Murphy, 180 App. 18. Witness : No presumption arises against witness in a criminal case who does not avail himself of the privilege of testifying. Miller vs. People, 216 111. 309; People vs. Annis, 261 111. 157. The law raises no presumption that a witness has testified to the truth. Bleich vs. People, 227 111. 80; Chi. U. Trac. Co. vs. O'Brien, 219 111. 303 ; Hauser vs. People, 210 111. 253. Work and Services: Presumption is that services rendered by one admitted into family as a relative were gratuitous. Heflfron vs. Brown, 155 111. 322; Collar vs. Patterson, 137 HI. 403; Keyes vs. Thornton, 150 App. 523. (See Ante-Employment.) PRINCIPAL AND SURETY 1045 PRINCIPAL AND AGENT See Agency, Ratification, Witnesses, Husband and Wife, Ad- missions AND Declarations. PRINCIPAL AND SURETY See Bonds, Receipts. Burden of Proof: Plaintiff has burden of proving that act complained of occurred during term of bond. Mystic Workers vs. U. S. G. Co., 152 App. 223 ; Stern vs. People, 96 111. 475. A surety has burden of proving facts discharging him from lia- bility. Prussing vs. Lancaster, 234 111. 462; Tl-uesdell vs. Hunter, 28 App. 292. The burden of proving unsoundness of mind of surety is upon surety. A preponderance of evidence is sufficient. Gaar vs. Hulse, 90 App. 548. Admissibility of Evidence: — Parol: Parol evidence is inadmissible to show that a sec- ond surety signed as such, after execution of instrument by prin- cipal and another surety, on condition. Schroer vs. Wessell, 89 111. 113. Parol is inadmissible to show that contract of guaranty was conditional instead of absolute. Bradley vs. Brown, 146 App. 297; Contra, Bates vs. Worthington, 163 App. 75. ,. A third party who, opposite a seal, affixes his signature follow- ing those of the lessor and lessee, does not become a party to the lease if not mentioned therein, nor does such third party assume the obligations thereof or become surety with respect thereto, and parol evidence is not admissible to show a collateral under- taking. Doyle vs. Dunne, 144 App. 14. Where a corporation is misnamed in contract of guaranty, proof is admissi])le to show corporation intended to be indemnified by contract. Mall. Iron Eange Co. vs. Pusey, 244 111. 184. In equity, parol evidence is admissible to prove that a party was only a surety, if it does not appear from the face of the instru- ment itself. McDavid vs. McLean, 202 111. 354; Kennedy vs. Evans, 31 111. 258. — Admissions: In suit on bond, an admission of a principal iliat he owed a certain amount is evidence of the fact, not only against himself, but against his co-obligors. Swisher vs. Deering, 204 111. 203; Rhode vs. McLean, 101 111. 467; People vs. Title & Guaranty Co., 156 App. 488. And if such admission be proved, his successor in office may, Avithout producing the books, testify that the books showed that the partv bad received such amount and failed to turn it over. Swift vs. Trustees of Schools, 189 111. 584. 1046 PRIVATE CORPORATIONS — Boohs and Becords: Wliere the books upon wliicKtlie entries of a public officer are made are such as the law requires to be kept so that they constitute the official record of the acts performed by him in the discharge of his official duties, such entries are, on general principles, admissible in evidence for or against all per- sons having any interest in them or the facts to which they relate, including the officer and the sureties on his bond. Cassidy vs. Trustees of Schools, 105 111. 560 ; Building Association vs. Cochrane, 103 App. 29. And this whether entries were made by official or his boakkeeper, the presumption being that he would not permit improper or in- correct charges to stand uncorrected. Cawley vs. People, 95 111. 248. So the report of a county treasurer, in his handwriting, pre- sented to the county board, as well as the record of the board ap- proving same, are competent against his sureties in action on his official bond. Stern vs. People, 102 111. 540. "Where the books upon which the entries of a public officer are made are such as the law requires to be kept, so that they consti- tute the official record of the acts performed by him in his dis- charge of his official duties, such entries are conclusive upon prin- cipal and sureties. Town of Cicero vs. Grisco, 240 111. 220; Cowden vs. Trustees ot Schools, 2,35 111. 604; Longan vs. Taylor, 130 111. 412; Fogarty vs. Eeani, 100 111. 366. But records which require an adjudication or approval of a court are not conclusive until so approved or adjudicated. People vs. Huffman, 182 111. 390. — Judgments: A judgment against a principal, where the surety has been notified and had opportunity to defend, is prima facie evidence as to amount of damages in suit against surety. Henry vs. Heldmaier, 226 111. 152. So a judgment against an executor for money due from him, as such, to the estate, cannot be collaterally attacked in suit on bond. Nevil vs. Woodburn, 160 111. 203. Where a person is responsible over to another, and he is noti- fied of the pendency of a suit involving the subject matter of the indemnity, his liability will be fixed and determined by the judg- ment rendered therein, and notice to him will be implied where he has knowledge of the pendency of the suit and participates in the defense thereof. Meyer vs. Purcell, 214 111. 62; Drennan vs. Bunn, 124 111. 175. PRIVATE CORPORATIONS See Corporations. PRIVATE WRITINGS See Copies, Records, Parol, PRIVILEGED COMMUNICATIONS 1047 PRIVILEGE OF WITNESS See Immunity, Contested Elections. PRIVILEGED COMMUNICATIONS See Immunity, Grand Jurors, Compromise and Settlement, Husband and Wipe, Libel and Slander^ Arbitration and Award^ ATTORNEY AND CLIENT. The Relation: Where the relation of attorney and client exists between parties, communications between them relating to matters in litigation and connected with it are incompetent. Oliver vs. McDowell, 100 App. 45. To entitle communications to be considered as confidential and privileged, the relation of attorney and client must exist. People vs. Barker, 56 111. 299; Staley vs. Dodge, 50 111. 43; C. F. R. & B. Co. vs. Jamieson, 48 111. 281; DeWolf vs. Strader, 26 111. 225; City of Eockford vs. Falver, 27 App. 604; XIV 111. Notes 1133, §§ 164 et seq. In order that the privilege exist, one must be consulted as at- torney and not as a mere friend. Smith vs. Long, 106 111. 485; Goltra vs. Wolcott, 14 111. 89. Facts obtained by one as attorney pending negotiations for em- ployment, though no employment resulted, are privileged. Thorpe vs. Goeway, 85 111. 611. Communications to one not a licensed attorney are not priv- ileged. McLaughlin vs. Gilmore, 1 App. 563. The privilege extends to information acquired by means of a witness' position, as an attorney's paid clerk. Kinney vs. Bauer, 6 App. 267. Party must consult attorney in matter in which his private in- terests are concerned, and make his statements to him to enable the attorney to more correctly understand his cause. Granger vs. Warrington, 8 111. 299. Where a party consults an attorney as his legal adviser, in regard to matters out of which litigation afterM^ards arises, comnninica- tions thus made to the attorney are inadmissible against party seeking the advice. Wood vs. Thornley, 58 111. 464; People vs. Barker, 56 111. 209. Attorney may testify as to existence of relation. This disclosure of that fact is not a breach of professional confidence. Leindeeker vs. Waldron, 52 111. 283. Where two parties come to an attorney to obtain his opinion concerning the validity of a deed from one to the other, and make a statement of facts to him, there being no employment, the rela- tion of attorney and client does not exist so as to exclude the com- munications. Griffin vs. Griffin, 125 111. 430; Lynn vs. Lyerle, 113 111. 128. 1048 PRIVILEGED COMMUNICATIONS Matters Relating- to Communication and Privilege: — In General: Information obtained by an attorney from his client is privileged. Holmes vs. Horn, 120 App. 359. Facts and circumstances communicated to an attorney are priv- ileged. Thorp vs. Goeway, 85 HI. 611. The rule as to privileged communications extends to every com- munication which the client makes to his legal adviser for purpose of professional advice or aid upon the subject of his rights and liabilities, and it is not essential that any judicial proceeding in particular should have been commenced or contemplated. Rogers vs. Daniels, 116 App. 515. In order to render a communication between attorney and client privileged it must relate to some matter about which the client is seeking advice, or be made to an attorney in order to put the at- torney in possession of information supposed to be necessary to enable him to properly and intelligently serve his client. Champion vs. Mt-Carty, 228 111. 87. An attorney cannot, against the objection of his client, testify to matters of which he has had communications from his client in a professional capacity. The privilege is confined to confidential communications and does not extend to knowledge of matters of fact other^vise acquired, though but for the employment the attorney would not have acquired it. An attorney may thus testify as against a judgment for his client rhat before it was entered of record, the clerk issued execu- tion which the attorney took and delivered to the sheriff. Swaim vs. Humphries, 42 App. 370. There is no objection to having plaintiff V attorney swear to a calculation of interest. Stratton vs. Henderson, 26 111. 69. An agreement made at request of client with opposite party, with view to settlement is not within the privilege. Thayer vs. McEwen, 4 App. 316. — Deed of Assignment: An attorney employed by a failing debtor to draw up an assignment of certain contract of debtor, (which assignment was attacked by creditors as fraudulent), was asked if the assignor said anything at the time with reference to the intent or purpose of making the assignment, and if so, what: Held, that the question was properly disallowed, as calling for a privil- eged communication, made to an attorney. HoUenbach vs. Todd, 119 111. 543. — Letters Between: Letters from attorney addressed to client are not admissible in another case between other parties, to show that the money sued for was sought to be recovered from other parties. Iglehart vs. Jornegan, 16 111. 513. — Bill, in Chaneery: A bill in chancery, sworn to by a party, and which, if prepared by his attorney on the client's statements of the facts, is to be regarded as privileged communication in the PRIVILEGED CO.MMUNlCxVTIONS 1049 hands of the attorney, and not admissible in evidence against his client. Burnham vs. Eoberts, 70 111. 19. — Indorsement of Note: An attorney cannot be compelled to testify as to whether a promissory note was indorsed when placed in his hands for collection. The privilege extends not only to what he hears, but also to what he sees from his situation as an attorney. Dietrich vs. Mitchell, 43 111. 40. — Proofs of Loss: Statements made to attorney hired to make out proofs of loss for fire insurance are privileged communications. Helbig vs. Citizens Ins. Co., 108 App. 624. — Attorney as Serivcner and Attesting Witness: The matters whicli come to the knowledge of an attorney solely as scrivener, at- testing witness or notary public, are not privileged. Spencer vs. Razor, 251 111. 278; Potter vs. Barringer, 236 111. 224; DeWolf vs. Strader, 26 111. 225. Where the transaction between an attorney and client is the prep- aration of a deed or contract in accordance with the directions of the client, and no legal advice is asked or required, the reason or motives moving the client to make the deed or contract, if stated to the attornev, are not privileged. Oiamp'ion vs. MeCarty, 228 111. 87; Smith vs. Long, 106 111. 485; DeWolf vs. Strader, 26 111. 225. — Fads From Other Sources: While an attorney is not a com- petent witness to disclose confidential communications of his clients, he may testify to facts he learned or knows from other sources than from the relation of attorney and client, and it should appear he derived his knowledge from the relation before it is excluded. C. F. E. & B. Co. vs. Jamieson, 48 111. 281. An attorney may testify to facts coming to his knowledge while acting in behalf of his client, in contest between strangers. Payne vs. Miller, 103 111. 442; Swaim vs. Humphries, 42 App. 370. The statements of a fraudulent grantor, made to the attorney of the grantee, are not privileged. Tyler vs. Tyler, 126 111. 525; Griffin vs. Griffin, 125 111. 430. — Presence of Third Parties: Statements made by clients in presence of third parties, or the opposite party or his attorneys, are not of that confidential nature that the clients may insist shall not be disclosed bv the attorneys. Scott vs. Aultman Co., 211 111. 612; Kissack vs. Bourke, 132 App. 360. — Fraudident Transactions Between Attorney and Client: Rule of privileged communications between attorney and client does not apply where they attempt to perpetrate a fraud. Lannum vs. Patterson, 151 App. 36. — Attorney Personedly Obligated: In suit on a contract to pay plaintiff a portion of the amount realized by defendant from cer- tain litigation, the attorney who acted for defendant in drawing the contract may testify as to the construction placed upon a cer- tain provision by himself and his client, where the attorney has bound himself personally to the extent of his property, for the performance of the contract. Funk vs. Mohr, 185 111. 395. 1050 PRIVILEGED COMMUNICATIONS Who May Claim: The privilege of secrecy as to communications to an attorney is that of the client alone and if the client waives the privilege, then the attorney is bound to answer. Scott vs. Harris, 113 111. 447; Lanum vs. Patterson, 151 App. 36. Attorney may claim protection of court upon being interrogated as to matters of privilege. C. F. B. & B. Co. vs. Jameson, 48 111. 281. , Communications between attorney and testator may be privil- eged if otrered by third persons to establish claims against the estate, but when the contest is between the heirs next of kin, on contest of will, the rule is otherwise. Wilkinson vs. Service, 249 111. 146. Although statements made by party to his attorney and legal adviser are privileged when ofifered in evidence against the client, if living, they are not privileged after his death in an inquiry to ascertain, as between his devisees under his will, and a^ grantee claiming under his deed made after the will, as to what he intended by his deed. Scott vs. Harris, 113 111. 447. Conversations between attorney and testator in relation to testa- mentary disposition of property are not, if otherwise competent, to be excluded as privileged communications on bill to contest the will. Norton vs. Clark, 253 111. 557. Waiver: Heirs and devisees of client may waive the privilege. Wilkinson vs. Service, 249 111. 146; Scott vs. Harris, 113 111. 447; Fossler vs. Schriber, 38 111. 172. Where one voluntarily testifies as to communications with his attorney, he may be cross examined fully. ' Swenk vs. People, 20 App. 111. The defendant in a criminal prosecution cannot testify to a cer- tain fact communicated to an attorney, and then after conviction assign as error the admission of the attorney 's testimony as to such fact, on the ground that it was a privileged communication. Knight vs. People, 192 111. 170. Objection: The time to object that certain statements sought to be proven are privileged is when the opposite party attempts to examnie a witness for the purpose of laying the foundation to prove the state- People vs. Enright, 256 111. 221. ATTORNEY AND WITNESS. Statements made to an attorney by persons who witness a murder should not be excluded as privileged communications upon the ground that the attorney is appearing for the accused on the trial, where it is not shown he was acting as attorney for accused when the statements were made. People vs. Enright, 256 111. 221. PUBLIC OFFICIALS. In General: All communications, whether written or verbal, passing between PRODUCTION OF DOCUMENTS 1051 public officials, in reference to their duties, and in the conduct of the public business, are absolutely privileged. Haskel vs. Perkins, 165 App. 144. Election Officers: Cannot give evidence as to how ballot was marked, although voter did not swear to disability. """ •'' Gill vs. Shurtleflf, 183 111. 440. WITNESS. An action for slander will not lie for words used by a witness in giving testimony in a judicial proceeding, if the testimony was pertinent and material to the subject matter of inquiry, notwith- standing it may be malicious or false. McDavitt vs. Boyer, 67 App. 452. PROBABLE CAUSE See False Imprisonment, Libel and Slander, Malicious Pros- ecution. PRODUCTION OF DOCUMENTS See Best and Secondary, Immunity, Refusal to Produce Evi- dence, Destruction, Suppression and Fabrication. i • • Immunity : A defendant excused from testifying cannot be compelled to produce criminating documents. Manuiug vs. Securities Co., 242 111. 584; Lamson vs. Boyden, 160 111. 613; People vs. Western Ins. Assoc, 40 App. 428. Party claiming immunity must specify in his answer documents and books he objects to producing, stating fully upon what grounds his objections are based. Manning vs. Securities Co., 242 111. 584. Power of Court and Scope of Order : — Presumption: If no objection is made at time of order, it will be presumed to be made by consent. Morgan vs. Corlies, 81 111. 72. — Pfivate Writings: The statute authorizes the court, upon cause shown and proper notice, to require eitlier party to a suit to produce books and writings in his possession or power, which contain evidence pertinent to the issue ; but the court will not compel a party to submit for inspection his books of accounts with other persons not parties to the suit, when it is not made to appear that they contain evidence pertinent to the issue. Pynclion vs. Day, 118 111. 9. The statute does not give the right to compel the submission of the books of a party to general inspection or examination for fish- ing purposes, or with view to find evidence to be used in other suits or prosecutions. Lester vs. People, 150 111. 408. 1052 PRODUCTION OF DOCUMENTS Power of court to compel production of documents is not limited to time of trial. S. A. Tel. Co. vs. F. & C. Co., 208 111. 562. Order is properly refused wliere such documents would be im- material. Con. Coal Co. vs. Jones, 120 App. 139. Order is broad enough which embraces all parties desire to show, and books are produced and examined l)y experts and brought to trial, without producing all books of firm, although asked for by opposite party. Eigdon vs. Conley, 141 111. 565. Where contract between plaintiff and defendant authorizes plain- tiff to inspect certain books of defendant at all reasonable tinies, court has power, in case of defendant's refusal, to order production of such books before the trial, if needed to enable plaintiff' to pre- pare his case. S. A. Tel. Co. vs. F. & C, Co., 208 111. 562; County of Cook vs. Harms, 10 App. 24. — Public Documents: Public records, in the custody of public officers acting under statutory duties, do not come within principle of rule in regard to the production of paper evidence in possession or under control of the opposite party. Dunham vs. City of Chicago, 55 111. 357. The courts have power to compel the custodian of records and public documents to produce them in court for inspection, and to be used as evidence when material and necessary; and when- ever it is clearly made to appear, in proper manner, that their production is necessary and material for the support of either a cause of action or defense, or the promotion of public justice, the power should be exercised. Dunham vs. City of Chicago, 55 111. 357. But where the exercise is not so shown to be necessary, for the reason that certified copies could be obtained and received in evidence, and answer as well as the originals, or Avhen the proof upon which the application is based attempts to show that tlie originals have been tampered with and falsified, but fails to show how the rights of the moving party are affected by any such acts, and the court cannot see from the facts stated that his rights were in any manner affected thereby, then, in either case, in the exercise of a legal discretion, the court may, from consideration of puljlic convenience and safety, properly refuse to require their produc- tion. Dunham vs. City of Chicago, 55 111. 357. Notice to Produce: — Reasonable: To compel the production of books to be read in evidence, the party must have reasonable notice. First Natl. Bank vs. Mansfield, 48 111. 494; Field vs. Zemansky, 9 App. 479; XII 111. Notes 493, §§ 135 et seq. And good and sufficient cause must be shown. Meeth vs. Rankin Brick Co., 48 App. 602. — When Unnecessary: When the paper or document wanted, if in existence at all, must be under the control of the party to the PROMISE TO REPAIR 1053 suit, and is one which he must know will be indispensable to his adversary, notice to produce is not necessary. Con. Ins. Co. vs. Rogers, 119 111. 474; Dawes vs. Dawes, 116 App. 36; C. C. C. & St. L. R. Co. vs. Newlin, 74 App. 638. — Lost Instrument: Where the proof shows that the opposite party has not the instrument in his power, notice to him to produce same is not necessary to admit parol evidence of contents. Proof of loss is sufficient. Taylor vs. Mclrvin, 94 111. 488; Stadler Brew. Co. vs. Weaver, 99 App. 161; Rhode vs. McLean, 101 111. 467. — Object of: The object of requiring notice to produce docu- ment is that the party may have an opportunity to produce same and not be taken by surprise. Where documents are actually in court in attorney 's hands, notice is unnecessary. Trusdale 'Mfg. Co. vs. Hoyle, 39 App. 532. — When Served: Must be served long enough before the trial to enable the party to produce documents or make due search for them. C. C. C. & St. L. Ry. Co. vs. Newlin, 74 App. 638 ; Bushnell vs. B. H. Colony, 28 111. 204. — Must Be Specific : A notice to produce liooks and papers must describe the books and papers intended with sufficient particularity to enable the party to determine what is wanted. Nussbaum vs. U. S. Brew. Co., 63 App. 35. Failure to Produce: See Refusal to Produce Evidence. Copies of Documents Ordered: Where entries in book accounts, desired to be used on trial, are so intermingled with other transactions that an inspection of these would expose such outside matters, a verbatim copy of all matters between the parties, giving page where entered, verified by affidavit and certificate of clerk of court, upon actual examination and com- parison, is competent. Pynchon vs. Day, 118 111. 9. PROMISE OF MARRIAGE See Breach of Promise. PROMISE TO REPAIR Injury to Person: — In General: Servant must complain of apprehended danger and must intend to quit work to render proof of promise to repair admissible but he need not declare his intention in terms. Morden Frog Works vs. Fries, 228 111. 246. By the promise a new relation is created, whereby the master im- ])liedly agrees that the servant shall not be held to have assumed the risk for a reasonable time following the promise. Scott vs. Parlin & Orendorff Co., 245 111. 460. The effect of a promise to repair, with respect to the doctrine of assumed risk, applies only as between master and servant, but 1054 QUO WARRANTO when an employe of one person has to work ahont machinery and appliances owned by another, and he complains to the owner of a defect which the latter promises to repair, proof of the complaint and a promise is material in action against the owner by the em- ploye for an injury due to the defect, as f^howing notice of the defect to the owner and the conditions under which the employe continued to work. N. A. Eestaurant vs. McElligott, 227 111. 317. — Burden of Proof: The burden of proof is upon the servant to show that he was induced to remain at work by the promise to repair. Morden Frog Works vs. Fries, 228 111. 246; Eiehter vs. Tegtmeyer, 167 App. 478. Landlord and Tenant: A promise to repair, made after the lease is executed is a mere nvdum pactum which creates no liability upon the part of the landlord to make such repairs. Fowler Cycle Works vs. Frazier, 110 App. 126; Blake vs. Eanous, 25 App. 486. PUBLICATION See Service. QUIETING TITLE See Cloud on Title. QUO WARRANTO See Officers. Pleadings : — Counts Distinct: Counts are distinct, and the allegations of one count cannot be looked to in passing upon the sufficiency of the others. People vs. McDonald, 208 111. 638. — Anticipating Defense: The rules of pleading, in quo war- ranto, to question defendant's title to an office, do not require that the pleader shall anticipate that the defense will justify under an election, and show in advance the invalidity of such election. If the election is pleaded, its invalidity is a matter to be shown by replication. People vs. Cooper, 139 111. 461; Lavalle vs. People, 68 111. 252; Minck vs. People, 6 App. 127. — •Existence of Office: Legal existence of the office must be averred and shown. An information will not lie to try the title to an alleged office which has no legal existence. People vs. Freeman, 242 111. 152; Hedrick vs. .People, 221 111. 374. — Private Corporation: The effect of filing an information against a corporation by its corporate name, to compel corporation QUO WARRANTO 1055 to disclose by what authority it exercises corporate privileges is to admit the existence of the corporation. Peoi^le vs. Cent. U. Tel. Co., 192 111. SOT. — Municipal Corporation: An information against a city in its corporate name to determine the legality of annexation proceed- ings, while it admits the legal existence of the corporation, does not admit the legality of the annexation. People vs. City of Peoria, 166 111. 517. All material facts set up in plea and not especially traversed by the replication, filed after a demurrer to the plea is overruled, are admitted and no proof of such undenied averments is necessary. Hepler vs. People, 226 111. 275; People vs. Gary, 196 111. 310; Launtz vs. People, 113 111. 137. Estoppel : The proceedings by information in the nature of a quo warranto is a subject for the exercise of legal discretion. An unreasonable delay and public interest will justify refusal to proceed to judg- ment. Soule vs. People, 205 111. 618; People vs. Pike, 197 111. 449; Peo- ple vs. Hanker, 197 111. 409; People vs. Schnepp, 179 111. 305; Trustees vs. School Directors, 88 111. 100; XIV 111. Notes 175, §22. Burden of Proof: A defendant justifying to an information in quo warranto, whether an individual or a corporation, has the entire burden of showing by what authority the powers complained of are exercised and the People are entitled to a judgment of ouster if a prima fade case is not made out. People vs. O'Connor, 239 111. 272; McGahan vs. People, 191 111. 493; People vs. City of Peoria, 166 111. 517; People vs. Brnennemeir, 168 111. 482; Chi. City Ry. Co. vs. People, 73 111. 541; Clark vb. People, 15 111. 213; XIV 111. Notes 180, §54. Defendant cannot put in general denial of wrong and then await proof of relator. A plea of not guilty will not prevail. Defend- ant must disclaim, avow or justify, his claim, and burden of proof rests upon him if his claim is denied. Swarth vs. People, 109 111. 621; People vs. Burns, 212 111. 227. Ordinarily the burden of proof is on respondent to prove his title as pleaded, or so much thereof as is traversed. People vs. Cent. Union Tel. Co., 192 111. 307. Presumptions : — Village Organizations: Municipal corporations being a public necessity, the law will indulge a presumption in favor of their legal existence after long continued use of corporate powers with acquiescence of the public. People vs. Pike, 197 111. 449. — Laches: Laches cannot be presumed and the existence of such as would bar prosecution of suit should be alleged and proven. Kamp vs. People, 141 111. 9. — Special Authority of Officer: "When officers are exercising a special statutory authority, no presumption of law will be in- dulged in favor of their acts, which must rest, for their validity, upon the record. People vs. McDonald, 20& 111. 638.- 1056 RAPE Sufficiency of Evidence: After a lapse of more than twenty years, during which the ter- ritory has exercised all the functions of a municipal corporation with public acquiescence, strict proof of legal organization will not be required in q^io warranto, and defendant need make only such proof as the nature of the ease will permit. People vs. Pike, 197 111. 449. Proof of city council 's findings of facts constituting the statutory conditions under which the city exercised the power of annexation, together with proof of ordinance reciting such facts, does not make out prima facie case. People vs. City of Peoria, 166 111. 517, If the petition for village organization is lost or destroyed, testi- mony by one of the circulators of the petition that thirty legal voters signed it; that the names he had put down from memory on the restored petition were substantially correct, and if he had made mistakes in the names there were other legal voters who had signed in their stead, is sufficient to justify the court, after more tlian twenty years, in finding there was a legal petition. People vs. Pike, 197 111. 449. By introducing in evidence, on a quO' warranto proceeding, a peti- tion for organization of a village, for the purpose of contradiction of the recital therein that the territory incorporated contained three hundred resident inhabitants, such evidence not being neces- sary on party of relator, he is not thereby estopped from giving evidence to contradict such recital, and may show by parol that the requisite population was wanting, and thus defeat the incorpo- ration. Kamp vs. People, 141 111. 9. RAILROADS See Eminent Domain, Experiments, Fires, Freight Rates, Corporations, Habits, Identity, Speed, Train Bulletins, Judi- cial Notice, Safer Method. RAPE See Confessions, Corpus Delicti, Separate and Similar Offenses. BURDEN OF PROOF. Consent of Female: Absence of consent of female must be proven beyond reasonable doubt. Sutton vs. People, 145 111. 279. Consent to carnal intercourse cannot be legally given by female under age. Addison vs. People, 193 111. 405. Consent immaterial where female under age. Johnson vs. People, 202 111. 53. RAPE 1057 ADMISSIBILITY OF EVIDENCE. Incapacity to Consent: ^ Absence of consent may be shown by proving that woman was unable to consent, through idiocy, unconsciousness or the like ; the law then assumes that intercourse is without her consent and the offense is rape. Addisou vs. People, 193 111. 405; Shir-n-iu vs. People, 69 111. 55. Admissions and Declarations of Defendant: Admissions of defendant may be shown. Johnson vs. People, 197 111. 48. Intention of defendant mav ])e shown by his declarations. Latbrop vs. People, 197 111. 169. Proof of effort of accused to compromise admissible, but not what was said in response to such offer, Barr vs. People, 113 111. 471. Written admission made with a view to compromise the matter with the injured party, on the basis that she would not prosecute, where defendant then under arrest and inducement held out by officiating magistrate, is not admissible. Austin vs. People, 51 111. 236. Where it is sought to show that defendant made an alleged dis- serving stateinent, it is not proper, unless called out on cross exam- ination, to permit witness to detail whole conversation in which he repeated the girl's statements as to the transaction, and the language witness used to defendant in characterizing his conduct. Kevern vs. People, 224 111. 170. An admission or confession of guilt may be implied where ac- cused, when confronted bv victim, makes no denial. Ackersou vs. People, 124 111. 563. Because a defendant made no complaint against father of female, who had been arrested for fighting with defendant, when informed if he did make such complaint he would be charged ^^ith rape, is not an admission. People vs. Arnold, 248 111. 169. Complaints of Prosecutrix: — ■Corroboration: AVitness, provided complaint was made as soon as practicable or without any inconsistent delay, may state when, where and to whom such complaint was made, but cannot state the name of the person charged, nor any of the details of the transaction, as communicated bv prosecutrix. Stevens vs. People. 158 111. 'ill. Complaint is not received as admission by prosecutrix as to what took place, but upon the theory that the statement represents the spontaneous expression of her outraged feelings. Cunningham vs. People, 210 111. 410. But this rule does not extend to complaint for taking indecent liberties with a child. People vs. Scattura, 238 111. 313. Evidence is competent only to corroborate the testimony of prosecutrix and not to prove commission of the crime, and is not admissible unless part of the res gestae, where she does not testify. People vs. Le-nis, 252 111. 281. Ev.— 67 1058 RAPE Complaint elicited by questions is hearsay and inadmissible. Stevens vs. People, 158 111. 111. — Not Who Committed Rape: Fact that prosecuting witness, made complaint inunediately after alleged rape may be shown to sustain her testimony that she did make such complaint, but not as to the fact who committed the rape. It would be proper, in such case, to instruct the jury that the telling of the assault w^as a circumstance tending to sustain the truth of her statements on the trial that such an assault was made. People vs. Weston, 236 111. 104; Bean vs. People, 124 111. 576. Chastity : — Of Defendant: Not admissible in chief. Dalton vs. People, 224 111. 333; Janzen vs. People, 159 111. 440. But defendant may prove his reputation in that regard. Wistrand vs. People, 218 111. 323. — Of Prosecutrix: Where the prosecutrix is over the age of consent, and is capable of consenting to sexual intercourse, her general reputation for chastity may be shown. Stevens vs. People, 158 ill. Ill; Shirwin vs. People, 69 111. 55. "For the reason tliat an unchaste woman would be more likely to consent to the act than a virtuous one, and therefore her pre- vious connection with the accused, or her general reputation for want of chastity are proper ingredients in determining the ques- tion whether the particular act in controversy was accomplished solely by force, or with her virtual consent." Sherwin vs. People, 69 111. 55. If the complaining witness is under the age of consent, evidence to show that her reputation for chastity is bad, is not admissible. People vs. Gray, 251 111. 431. It is the general rule that the character of prosecutrix may be impeached ; but this must be done by general evidence of her repu- tation in that respect, and not by particular instances of her un- chastitj'. So where prosecutrix testified she was unconscious, and did not know that acccused committed the rape or not, and pros- ecution proved by a physician who examined her three weeks after- wards, that she did not then bear evidence of virginity, and gave it as his opinion that she had carnal connection with a man at some time before, it was competent to rebut the inference sought to be drawn from his evidence by either showing a previous voluntary connection with accused, or particular instances of unchastity with any other man, as well as to show by medical testimony that the theory of the physician testifying was unreliable. Sherwin vs. People, 69 111. 55. Declarations of Prosecutrix: Prosecutrix may be contradicted by proof of contrary state- ments. Austine vs. People, 110 111. 248. Evidence that prosecutrix had declared that accused was not guilty, and that the prosecution was carried on to extort money from him or his friends, is material and properly admissible in- defense Sherwin vs. People, 69 111. 55, RAPE 1059 Proof that prosecutrix admitted it was a person other than de- fendant who made the assault is admissible. Kennedy vs. People, 44 111. 283. Subsequent Conduct of Prosecutrix: Evidence of conduct of prosecutrix subsequent to alleged crime, such as remaining with defendant after reaching company of others, failing to disclose commission of the crime, etc., are com- petent and should be considered by the jury in determining the guilt or innocence of accused. But where the crime is proven by direct and positive evidence, the conduct of prosecutrix is wholly immaterial. Such evidence is only admissible for purpose of cor- roborating or contradicting her testimony. Sutton vs. People, 145 111. 279; Barney vs. People, 22 111. 160. Expert and Opinion: Testimony by physician, based on personal examination made of person of the girl six months after alleged rape, that he found a rupture of her hymen, is competent. The remoteness of the ex- amination from the time of the alleged rape goes merely to the probative force of the fact that the hymen was found to be ruptured at time of examination, and not to its admissibility. Gilford vs. People, 148 111. 173. Opinions of experts, based upon an assumption of fact of rape in hypothetical question, whether in their opinion a hemor- rhage was more likely to have resulted from the forcible rape or an operation, are incompetent. People vs.- Arnold, 248 111. 169. Physician may state what effects might result from a rape but should not be allowed to give an opinion based upon an examination of prosecutrix, that the condition he discovered was produced by a rape. People vs. Schultz, 260 111. 35. Birth of Child: The birth of a child to prosecuting witness, in itself, is not a circumstance tending to prove crime of rape upon her. Kevern vs. People, 224 111. 170. Except where birth occur within natural period of gestation reckoned from date of act. People vs. Duncan, 261 111. 339. Exhibits : Exhibiting to jury the blood-stained clothing of prosecuting witness is error where hemorrhage was proved and not denied, but cause claimed by defendant to have resulted from operation under- gone by witness shortly before. Clothing was not the instrument of any crime and had no tendencv to prove any fact denied. People vs. Arnold, 248 111. 169. Evil Surrounding's of Prosecutrix: That a child under fourteen years of age was brought up in evil surroundings, among inmates and employees of houses of ill-fame, furnishes no defense, although act was committed with her consent. Johnson vs. People, 202 111. 53. Reputation of Defendant as Peaceable Citizen: Accused is allowed to prove his general reputation for chastity, but not his general reputation as a peaceable and quiet citizen, his reputation in that respect not being in issue. Wistrand vs. People, 218 111. 323. 1060 RAPE Rebuttal Showing- Different Time: Prosecutrix testified the rape was committed on certain day. Defendant oflt'ered in evidence the complaint of her brother, who was not a witness, made on later date, alleging the offense to have been committed on that day, which, on objection, the court refused to admit. The ruling of the court was held proper. Defendant oifered to prove that on date later tlian that of alleged offense, a brother of prosecutrix proposed the name of accused for leader of a band of which they were meml)ers, which the court excluded. The evidence was not competent, except to impeach the testimony of the brother, in case proper foundation had been laid. Bean vs. People, 124 111. 576. Similar Offenses: — In General: As a general rule, proof of other acts is inad- missible unless they are a part of the res gestae. People vs. Gray, 251 111. 431. — Ixape Without Force: Other offenses with prosecuting wit- ness admissible. People vs. Gray, 251 111. 431 ; People vs. Ambach, 247 111. 451 ; People vs. Duncan, *261 111. 339. But acts of intercourse between accused and others than pros- ecuting witness are not admissible. People vs. Gibson, 255 111. 302; Daltou vs. People, 224 111. 333; Janzen vs. People, 159 111. 440. Unless part of res gestae showing means used to obtain consent of prosecutrix. People vs. Duncan, 261 111. 339. — Actions with Other Women: Calling from accused, on cross examination, the statement that he had not been in the room up- stairs over a certain saloon at any time since he sold it, in wiiich room the prosecutrix testified the rape was committed, does not open the door to rebuttal evidence that the accused had been in such room with another girl, an associate of prosecutrix, notwith- standing no objection was made to the improper cross examin- ation. Where proprietor of saloon, in room over w^hich the crime is claimed to have taken place in the daytime, testified the street door was kept locked and bolted in the daytime, evidence that accused was upstairs in the room with another girl in a certain month is not admissible as tending to disprove the testimony of the proprietor, there being no evidence that the parties went in at the street door, or that the meeting was in the day time. Dallnii vs. People, 224 111. 333. Separate Offenses: — In General: Misconduct other than that charged, incom- petent. People vs. Arnold, 248 111. 1G9; Johnson vs. People, 202 III. 53; Gilford vs. People, 87 111. 210. — Larceny: Prosecutrix may detail the entire transaction, in- cluding theft of her money and property, which does not render her evidence incompetent as disclosing a separate offense. People vs. Eardin, 255 111. 9. — ■ Drunkenness of Accused: Intoxication of defendant is not admissible. Johnson vs. People, 202 111. 53. RAPE 1061 It is prejudicial error to permit the people, in making proof of assault with intent to commit rape, to prove accused had been drinking beer on the day of alleged assault and had treated a boy, sixteen years old, to beer. Addison vs. People, 193 111. 405. — Frequcniing Houses of Ill-Fame: Permitting evidence that accused frequented houses of ill-fame, is not ground for reversal where such proof came from accused himself, in answer to ques- tions of his own counsel. Johnson vs. People, 202 111. 53. — Venue hy Other Females: Permitting People to prove venue by girls M'ho testified they were under fourteen years of age, and had often been to defendant's room, and that it was in certain county, is not prejudicial error, as tending to impress the jury that the defendant had been guilty of improper conduct with them, there being no attempt to prove that fact. Wistrand vs. People, 218 111. 323. WEIGHT AND SUFFICIENCY. In General: Evidence should be sufficient to remove all reasonable doubt. Austin vs. People, 51 HI. 236. To establish corpus delicti, in rape without force, it is necessary •that proof should show, first, that the female w^as under the age, second, that the male was over the age as in statute, third, that sexual intercourse occurred between them. Wistrand vs. People, 213 111. 72; Schramm vs. People, 220 111. 16. There must be pentratio or res in re in order to constitute carnal knowledge. A very slight penetration is sufficient. Penetration may be shown by circumstantial evidence. People vs. Schultz, 260 111. 35. Force and Intent: Intent is an essential element and must be proved. Barr vs. People, 113 111. 471. The intent with which the act is done is a question of fact, either to be shown by the declarations of the party, or to lie inferred from the character, manner and circumstances of the assault. Lathrop vs. People, 197 111. 169. The manner, time, place and circumstances may be considered on question of intent, and acts and circumstances may be sufficient to show intent. FitzPatrick vs. People, 98 111. 269. Force is an essential element where female is above age of con- sent. Eucker vs. People, 224 HI. 131. But force to last extremity not necessary. Sufficient that act is forcible and against will, where accomplished by threats, intimida- tion and fear. Huston vs. People, 121 111. 497. Where female paralyzed with fear, element of force is not re- butted by proof of failure to make resistance or outcry. Austine vs. People, 110 111. 248. Force is not an essential element where female under age of consent. Addison vs. People, 193 111. 405. 1062 RAPE Uncorroborated Testimony of Prosecutrix: Testimony of prosecutrix, iiucorrol)orat('d by other witnesses, may be sufficient to justify conviction, but testimony must be clear and convincing. People vs. Freeman, 244 111. 590. Testimony of Child: Conviction for rape of child eight years old will be sustained, even though it rests principally upon testimony of child, when such testimony is corroborated by many circumstances and it is admitted accused was sleeping with the child at the time, Johnson vs. People, 202 111. 53. Of Complaint: Unexplained delay on part of prosecutrix in making complaint weakens value of such complaint as evidence, and if made in re- sponse to questions, and not spontaneously, it partakes of nature of hearsay and is entitled to little, if any, weight. Cunningham vs. People, 210 111. 410. Fact that prosecutrix is of good fame, or presently discovered the offense, and showed circumstances and signs of injury, and the one accused flees, will give greater probability to her testimony than it otherwise would have; but to say "these and the like are con- curring circumstances, which give greater iDrobability to her evi-. dence" is stating a nile of law too strongly in an instruction. Chambers vs. People, 105 111. 409. Absence of Consent: AVant of consent is of the essence of the crime, and must be proven by prosecution beyond reasonable doubt, before there can be a legal conviction, and it is error for court in instructions, to limit such doubt simply to the act of sexual intercouse. Sutton vs. People, 145 111. 279. Age of Accused: Being a part of corpus delicti, in rape without force, can not be proved by statement in his voluntary written confession, there being no other proof on such point. Wistrand vs. People, 213 111. 72. Age of one accused of crime of rape in having sexual inter- course, by consent, with female under age of consent, cannot be fixed by inspection of person by jury, but may be proved by testi- mony as to his apparent age. Wistrand vs. People, 213 111. 72. Assault having been committed with force and without the con- sent of the prosecuting witness the burden of proof as to the age of the defendant, if he is under sixteen years of age rests upon him. People vs. Sehultz, 260 111. 35. If defendant be under age of fourteen years, and wishes to avail himself of that defense, he is required to prove it, and question will then arise as to whether he knew right from wrong, and per- haps as to his physical ability to commit the crime. Sutton vs. People, 145 111. 279. EAPE 10G3 Defendant under sixteen cannot be convicted, in absence of force, violence or want of consent. Schramm vs. People, 220 111. 16. Where sexual intercourse is had with a female, forcibly and without her consent, it is not necessary to aver in the indictment that the accused was, at the time, of the age of fourteen years and upwards, and such averment, if made, may be treated as mere surplusage and need not be proven. Sutton vs. People, 145 111. 279. ASSAULT WITH INTENT TO COMMIT RAPE. Admissibility of Evidence: — Fads Proper: The manner, time and place of an assault by a man upon a woman are all elements to be considered by the jury in arriving at the conclusion as to the intent with which the assault was made as, whether to commit a rape or a simple assault. It is not necessary to a conviction for an assault with intent to commit rape, that the defendant should have expressed by words what his intention in assaulting the prosecutrix was. That may be made to appear from his acts and the circumstances proven, as well as by his words. FitzPatrick vs. People, 98 111. 269. — Force: AVhere female under age, immaterial whether of- fense was forcible and against her will or not. Porter vs. People, 158 111. 370. Weight and Sufficiency: — Assault and Persuasion: Consent to familiarities is not consent to intercourse. Johnson vs. People, 197 lU. 48. Proof of assault and of indecent and even violent familiarity in attempt of accused to persuade female to yield to his desires, is not sufficient to sustain conviction for assault with intent to rape, unless it appear accused intended to accomplish his object regardless of the will of the female. Proof that accused attempted to persuade prosecutrix to yield to his embraces, and after her statements that she would call for help, he "made the utmost use of his hands which would be called force, ' ' is not sufficient to sustain conviction for assault with intent to commit rape, where prosecutrix further testified that accused, upon her remonstrance, stated he could ''do nothing against her will," and where his subsequent actions were consist- ent with such statement. Newman vs. People, 223 HI. 324, — Intent: In assault with intent to commit rape, proof must show every ingredient of crime of rape except its accomplishment. The proof must show beyond a reasonable doubt, the uidawful attempt which constitutes an assault with intent to have carnal knowledge of a female, forcibly and against her will. It must show an intention to use such force as may be necessary to accom- plish the object. Franey vs. People, 210 111. 206. 1064 RATIFICATION RATIFICATION See Infants, Contracts, Stipulation. Defined : Ratilicatioii is equivalent to previous authority. It operates upon the fact ratified in the same manner as though authority had been originally given. Ratification relates back to the be- ginning of the thing ratified and renders it obligatory from the outset. Canning Co. vs. Brokerage Co., 213 111. 561. Contracts : — Vuid and Voidable Contracts: A contract which is voidable only is the subject of ratification, but a contract which is abso- lutely void cannot be rendered valid by ratification. L. N. A. & C. Ey. Co. vs. Carson, 51 App. 552. — Scaled Instruments: The authority to execute a sealed instrument must be of equal dignity and under seal; and a prin- cipal cannot ratify a sealed instrument executed by an agent without competent authority, except by a writing under seal. Ingram vs. Edwards, 64 111. 526; Sigmund vs. Newspaper Co., 82 App. 178; Gage vs. City of Chicago, 2 App. 332. And an undisclosed principal is not bound though the contract would have been valid without a seal and that therefore the authority to execute it might be by parol is innnaterial. The method "of conferring or of ratifying the contract does not change the rule. Walsh vs. Murphy, 167 111. 228. A sealed contract, executed by one of several partners for the firm, without authority under seal, if made for the benefit of the firm, and relating to partnership business, is binding upon all partners, if they assent thereto, and such assent may be given at the time, or subsequently; and may be proven by acts or cir- cumstances, or by their verbal declarations and admissions. Peine vs. Weber, 47 111. 41; Edwards vs. Dillon, 147 111. 14. Contract of Infants: In order to constitute a ratification of acts done in infancy, the act relied upon as a ratification must be proven to be performed with a full knoAvledge of its conse- quences, and with the express intent to ratify what is known to be voidable. Sayles vs. Christie, 187 111. 420. Acts and declarations made to strangers in absence of party are not conclusive evidence of ratification, but are admissible. Sayles vs. Christie, 187 111. 420. Silence is not a ratification. Davidson vs. Young, 38 111. 145. But intention mav be shown by acts. Curry vs. St. John Plow Co., 55 App. 82. (See Infants.) — Contracts of Corporation: A corporation may be bound by a ratification, evidenced by its acts, and such acts and its assent, like that of an individual, may be shown from facts and circum- REASONABLE DOUBT 1065 stances, and need not be in writing even though it be an act done without authority. Lake St. El. Co. vs. Carmichael, 184 111. 348; L. N. A. & C. Ry. Co. vs. Carson, 151 111. 444; People vs. Penn. Mutual Co., 126 App. 279; Kennedy vs. Supreme Lodge, 124 App. 55; Ashley Wire Co. vs. 111. Steel Co., 164 111. 149; Lake St. Ey. Co. vs. Carmieliael, 82 App. 344; C. G. W. Ey. Co. vs. People, 79 App. 529; Wheeler vs. State Bank, 85 App. 28; XI 111. Notes 1098, §§ 379 et seq. Ratification niav be proven bv admissions of principal. E. & P. Co. "vs. Cecil, 112 111. 180. And supplies the want of initial authority. El. Supply Co. vs. Biddle, 156 App. 461. Where the ratification is estalilished by other evidence, what the agent says, and his declarations at the time of doing the act, are competent as part, of the res gestae. Where such ratification is with knowledge of the facts, the principal makes the acts and declarations of the agent his own. Paul vs. Berry, 78 111. 158. REAL EVIDENCE See Demonstrative Evidence, Exhibition of Injury. REASONABLE DOUBT See Bastardy, Alibi, Penalties, AVeight and Suffviciency. Defined : A doubt which will justify an acquittal must not be merely a chimerical or conjectural doubt, or one not based upon the evi- dence. It must be a doubt arising from a candid and impartial investigation of all of the evidence in the case, and such as in the graver transactions of life would cause a reasonable and prudent man to hesitate and pause. If the jury, after considering all the evidence, can say that they have an abiding conviction of the truth of the charge, they are satisfied beyond a reasonable doubt. Miller vs. People, 39 111. 458; People vs. Anderson, 239 111. 468; People vs. Tielke, 258 111. 88. Such a doubt must be actual and substantial, as contra-dis- tinguished from a mere vague apprehension, and must arise out of the evidence. The jury may be said to have a reasonable doubt when, after the entire comparison and consideration of the evi- dence, they cannot say that they feel an abiding conviction, to a moral certainty, of the truth of the charge. Proof "beyond a reasonable doubt" is such proof as precludes every reasonable hypothesis except that which it tends to support. It is proof "to a moral certainty," as distinguished from an ab- solute certainty. The two phrases, "proof beyond a reasonable doubt" and "proof to a moral certainty," are synonymous aiid equivalent. Each signifies such proof as satisfies the judgment and conscience of the jury, as reasonable men. and applying their reason to the evidence before them, that the crime charged has been 1066 REASONABLE DOUBT conimittccl by the defendant, and so satisfy them as to leave no other reasonable conclusion possible, Carlton vs. People, 150 111. 181. On a murder trial the court instracted the jury that in con- sid,ering the case they "are not to go beyond the evidence to hunt up doubts, nor must they entertain such doubts as are merely chimerical or conjectural. A doubt, to justify an acquit- tal, must be reasonable, and it must arise from a candid and impartial investigation of all the evidence in the case, and unless it is such that, were the same kind of doubt interposed in the graver transactions of life, it would cause a reasonable and pru- dent Hi an to hesitate and pause, it is not sufficient to authorize a verdict of not guilty. If, after considering all the evidence, you can say that you have an a])iding conviction of the truth of the charge, you are satisfied beyond a reasonable doubt;" Held, no error prejudicial to the defendant. Painter vs. People, 147 111. 444. Each Incriminating- Fact : It is not necessary that each particular incriminating fact relied upon shall be proven beyond a reasonable dou])t. It is sufficient if upon the wdiole evidence the jury are satisfied beyond a rea- sonable doubt that defendant is guilty. Kossakowsld vs. People, 177 111. 563; Mullins vs. People, 110 111. 42. Links and Particular A cts : It is sufficient if evidence, as a whole, satisfies the jury beyond a reasonable doubt, — proof of each link in the chain is not neces- sary. People vs. See, 258 111. 152; Keating vs. People, 160 111. 480; Siebcrt vs. People, 143 111. 571; Weaver vs. People, 132 111. 536; People vs. Searbach, 245 111. 435 ; XI 111. Notes 1247, § 183. Whole Evidence: The reasonable doubt which a jury may entertain must be in regard to the guilt of the accused considering the whole evidence, and not in regard to the sufficiency of the proof of any particular fact in the case. Henry vs. People, 198 111. 162; Williams vs. People, 166 111. 132, Circumstantial : In order to w^arrant a conviction for crime on circumstantial evidence, the circumstances, taken together, should be of a con- clusive nature and tendency, leading, on the whole, to a satis- factory conclusion, and producing, in effect, a reasonable and moral certainty that the accused, and no one else, committed the offense charged. People vs. York, 262 111. 620; People vs. Eischo, 262 111. 596; Duun vs. People, 158 111. 586; Carlton vs. People, 150 111. 181. It is not necessary that it establish to "a certainty that con- vinces and directs the understanding and fully satisfies the rea- son and judgment," as this would be tantamount to the re- quirement of absolute certainty. Little vs. People, 157 111. 153. Corpus Delicti: Must be established beyond a reasonable doubt. Hoch vs. People, 219 111. 265; Williams vs. People, 101 111. 382. REBUTTAL 1067 Identity : Though positively proven that one of two or more persons committed crime, yet if it is uncertain which is the guilty party, all must be acquitted. Campbell vs. People, 16 111. 16. Sanity : A reasonable doubt as to the sanity of the accused will entitle him to acquittal. Hornich vs. People, 142 111. 620; Crews vs. People, 120 111. 317; Mullens vs. People, 110 111. 42; Davis vs. People, 114 111. 86. Reformation of Instruments: Relief is forbidden whenever the evidence is loose, equivocal, or contradictory, or in its texture open to doubt or opposing pre- sumption. Parol evidence of the mistake must be establislied be- yond a reasonable doubt. Courts of equity do not grant the high remedy of reformation upon a probability .nor upon a mere preponderance of the evidence, but only upon a certainty of the error. Lines vs. Willey, 253 111. 440. Notice of Unrecorded Deed: The title of a subsequent purchaser whose deed is first recorded will not be defeated on the ground of notice of a prior unrecorded deed unless the proof of such notice is so clear and positive as to leave no reasonable doubt that the taking of the second con- veyance was an act of bad faith towards the purchaser. The fact of notice must be proved by direct evidence or by other facts from which it may be clearly inferred and the infer- ence must not be probable, but necessary and unquestionable. Lowdeu vs. Wilson, 233 111. 34U; Kobert'son vs. Wheeler, 102 111. 566. REBUTTAL See Order of Proof, Offer of Evidence, Impeachment. Defined : Rebuttal evidence is that wliicli is produced by plaintiff to explain, repel, counteract or disprove evidence given by defend- ant. City of Sandwich vs. Dolan, 141 111. 430; Chi. City Ey. Co, vs. Mc- Meen, 70 App. 220. To rebut means to contradict by counterproof or repel by op- posing testimony. Kelly vs. People, 229 111. 81. Right to Introduce : After defendant has closed his case, plaintiff is entitled as of right to put in evidence strictly in rebuttal. Johnson vs. Breaton, 1 App. 293. Court may admit or exclude merely cumulative evidence when offered in rebuttal. Chytraiis vs. City of Chicago, 160 111. 18; Casey vs. Biscuit Co., 163 App. 145. Right to Rebut Impeaching Testimony : Where plaintiff, in rebuttal introduces evidence in contradic- 1068 REBUTTxVL tion of witnesses of defendant, which defendant could not rea- sona])ly have anticipated, and which evidence is offered for no other purpose than to impeach their credibility, defendant is entitled, after plaintiff has rested, to support their credibility by additional testimony. City of Sandwich vs. Dolai., Ul 111. 430. Right to Rebut Incompetent Testimony : The proper defense against incompetent evidence is an objec- tion, and its introduction without objection does not make evi- dence competent to contradict it. Parties cannot by mere silence or consent create a right to try an immaterial issue when they might have had the adverse evidence kept out or stricken out. People vs. Newman, 261 111. 11; Maxwell vs. Durkin, 185 111. 546. But after the admission of the objectionable evidence, party may offer proof upon the matter and is not thereby estopped to com- plain, where he -has first objected to the incompetent testimony. A party has a right to meet his adversary's case as made under the rulings of the trial judge, and, after making an objection and reserving proper exceptions, may combat the testimony of adverse party whether correctly admitted or not, without losing his rights on appeal. Chi. City Ey. Co. vs. Thter, 212 111. 174; Winn vs. Christian Coal Co., 156 App. 179. (See Objections.) Time of Introduction : — In General: The usual rule is that the party upon whom the burden of proof rests must in the first instance produce all proof he proposes to offer in support of his allegation ; and after his adversary has closed his proof, he may be heard only in ad- ducing proof directly rebutting the proofs given by his adver- sary. In some courts it has been held that neither party is called upon to produce all his testimony in support of any allegation in issue until it has been developed on tlie trial that an issue in the evidence is made upon that question; the view of such courts being that where the burden of proof of a given allegation rests upon a party, it is sufficient for that party to produce proof enough to make a prima facie case, and that he is not required to accumulate other testimony until evidence has been intro- duced to contradict his prima facie case. That rule has not pre- vailed in the courts of this state. Mueller vs. Eebhan, 94 111. 142. The rules of practice require each party to introduce all his evidence in chief when proving his case, but they have a right afterwards to introduce rebutting evidence in support of their evidence in chief, but a court may, in its discretion, at any time permit either party to introduce evidence in chief to promote justice, and error cannot be assigned on such admission. Chill. Ferry Co. vs. Jamieson, 48 111. 281. After a party has closed his evidence, it is altogether a mat- ter of discretion whether court will permit him to give further evidence. City of Sandwich vs. Dolan, 141 111. 430. REBUTTAL 1069 — After Argument of Counsel: The admission of testimony after the arguments have been made and the instructions read, rests in the discretion of the court, and the exercise of such discretion is not ground for reversal unless some injury has been occasioned to party complaining. Schwitters vs. Springer, 236 111. 271; I. D. & W. Ky. Co. vs. Hen- driaii, 190 111. 301; Garretson vs. Village of Fox Lake, 154 App. 58 ; Stivers vs. Conklin, 103 App. 288 ; Maxwell vs. Diirkin, 185 111. 546; Eobinson vs. Kirkwood, 91 App. 54; Busse vs. Kemp, 48 App. 195. Evidence Properly in Chief : — //( Goieral: Admission of evidence in rebuttal which is properly admissible in chief, is within sound discretion of trial court. People vs. Lukoszus, 242 111. 101; Hartricli vs. Hawes, 202 111. 334; Griffith vs. San. Dist., 174 App. 100; Beyer vs. P. B. & C. Co., 156 App. 47; Cleveland vs. Moore, 142 App. 615; City of ]\Iar- seilles vs. Heister, 142 App. 299; Argo vs. People, 78 App. 246; Mauzy vs. Kinzel, 19 App. 571. The permission of introducing rebuttal evidence properly a part of case in chief, rests largely in discretion of trial court. The discretion should be exercised so tliat neither party will be taken by surprise or be deprived of an opportunity, without no- tice, to introduce evidence in contradiction. Floto vs. Floto, 233 111. 605; Craig vs. Southard, 148 111. 37; Gray vs. Bonfield, 59 App. 381. Discretion is not subject to review except in case of gross abuse. Washiugiou Ice Co. vs. Bradley, 171 111. 255; Concordia Ins. Co. vs. Bowen, 121 App. 35. — C Oiliest of Will: Opinions of witnesses, called by propo- nent, as to testamentary capacity of testator should be given in chief. Slingloff vs. Bruner, 174 111. 561. Proponents of will cannot know what will be testified to by contestants' witnesses until their evidence has been given. It is proper for the proponent of a will to offer all his evidence of testamentary capacity in the first instance, and if he desires to present to the jury the opinions of experts based on hypotheses of facts testified to by his witnesses, he should do. so before clos- ing his case in chief, but after the contestant has offered his evidence, the proponent has a right to examine expert witnesses as to what conclusions, in their opinions, should be drawn from such evidence. Albrecht vs. Hittle, 248 111. 72. Anticipating- Defense: Party anticipating that evidence will be introduced in rebut- tal, may properly anticipate same in chief by introducing testi- mony to counteract the same. Kenny vs. Marquette Cement Co., 149 App. 173; Wilkinson vs. Aetna Ins. Co., 144 App. 38; Dimmick vs. Downs, 82 111. 570; Hintz vs. Graupner, 138 111. 158. The practice of permitting rebuttal evidence as part of case in chief is not justified by the fact that opposing counsel has stated in his opening statement what he expects to prove. Barrett vs. People, 220 111. 304. 1070 RECALLING WITNESS Leading Questions: On rebuttal there is no more right to ask suggestive questions of one's own witness than on examination in the first instance. Eobishaw vs. Schiller Piano Co., 17y App. 1(33. RECALLING WITNESS Further Cross Examination: — Discretion of Court: Recalling witnesses rests in discre- tion of court. Brown vs. Berry, 47 111. 175; Springfield vs. Dalby, 139 111. 34; Bennett vs. Glattfelt, 120 111. 166. The right to recall a witness for further cross examination is largely within the sound discretion of the trial court, and can only be reviewed when it is apparent that the refusal was an abuse of this discretionary power. Hirseh & Sons Co. vs. Coleman, 227 111. 149; Blanehard vs. Blaneh- ard, 191 111. 450; Anderson Trans. Co. vs. Fuller, 174 111. 221; N. W. E. Co. vs. Hack, 66 111. 238. Notice of intention to recall witness should be given counsel, so that cross examination may be had. Hurd vs. Lill, 26 111. 497. Where a witness has already answ^ered substantially the same questions on his first cross-examination, court may properly re- fuse to allow him to be recalled for further cross examination on same matter. C. & A. R. Co. vs. Eaton, 96 App. 570. RECEIVERS Private Corporations: — Compensation: Court may take into consideration its per- sonal knowledge of the general nature and value of the services alleged to have been rendered. Culver vs. Allen Med. Assn., 206 111. 40. In fixing compensation, including his solicitor's fee, which is to be taxed as costs upon the dismissal of the bill by the com- plainant, the court should hear evidence, and such evidence should be preserved in some way if it is desired to sustain the amount of such compensation on appeal. Borroughs vs. Merrifield, 243 111. 362. If a receiver relies upon his reports, petitions and accounts as furnishing sufficient infonnation to the court, he is not entitled to demand that the court hear oral evidence or refer the case to a master in chancery, after the court has announced the amount at which the compensation will be fixed, where the amount is sat- isfactory to all parties but the receiver, and is ample compensa- tion for the services performed, as fully disclosed by the re- ports and accounts. Goodman vs. Wilder, 234 111. 362. RECEIPTS 1071 RECEIPTS See T.vxES, Tax Receipts, Parol, Release, Waiver, Payment, EXPLANATION AND ACCEPTANCE. Admissibility of Parol: — In General: While a receipt is ordinarily very high and satisfactory evidence of the truth of its recitals, still it is always open to explanation by parol testimony. Starkweather vs. Maginnis, 196 111. 274; Paris vs. Lewis, 85 111. 597; Beading vs. Travers, 83 111. 372; Eand vs. Scholickl, 43 111. 167; 167; FitzGerald vs. Coleman, 114 App. 25; XII 111. Notes 516, §331. And this though plaintiff is suing for balance after giving receipt in full. MeKinnie vs. Lane, 230 111. 544; Rose vs. Stoddard, 181 App. 405. And defendant may show why the receipts ran in the name of another person. Starkweather vs. Maginnis, 196 111. 274. Parol evidence is competent to show receipt obtained through fraud or violence. O'Brien vs. Palmer, 49 111. 72. In an action by the payee against the maker of promissory notes, it appeared there were mutual dealings between parties, and the defendant presented in evidence the receipt of plaintiff, sub- seciuent to the date of the notes, in full of all demands: Held, he had the right to give in evidence his books of account, for the purpose of showing by the entries made therein how he had paid the notes, and so account for the giving of the receipt by the plaintiff. Taliferro vs. Ives, 51 111. 247. Payment may be proven by parol though a receipt was given. Hinchman vs. Whetstone, 23 Hi. 185; West Chi. St. Ey. Co. vs. Piper, 165 111. 325; Walker vs. Glos, 245 111. 253. — Contracis and Receipts: Wliere an instrument is partly a receipt and partly a contract, the part constituting the agreement or contract cannot be explained by parol. Zickert vs. Times Square Anto Co., 181 App. 676; Andnis vs. Mann, 92 111. 40; O'Brien vs. Palmer, 49 111. 72; MeClosky vs. McCormick, 37 111. 66; White vs. Merrill, 32 111. 511; Loeb vs. Flannery, 148 App. 471. A letter stating that the writer had collected a certain sum of money for the party to whom it was addressed, is nothing more than a receipt, and may be explained or contradicted by parol evidence, by showing that a less sum was in fact received. But if a party for whom the money was said to have been col- lected, in acting upon the statement in the letter as to the amount collected, had lost the security he held against his debtor, then the one making the statement would be estopped- from showing he had received a less sum. Carr vs. Miner, 42 111. 179. — Deeds: The acknowledgment in a deed of the payment of money is only treated as a receipt and is governed by the rules of evidence applicable to such instruments. Elder vs. Hood, 38 111. 533; Koch vs. Eoth, 150 111. 212. 1072 RECEIVING STOLEN PROPERTY — Burden of Proof: The burden of explaining or impeaching a receipt is upon the party who gave it. Lon^ vs. LoiifT, 132 App. 409; McElhaney vs. People, 1 App. 550. WEIGHT AND SUFFICIENCY. In General : A written receipt in full is evidence of the highest and most satisfactory character, and to do away with its force, testimony should be convincing. RosenmuUer vs. Lampe, 89 111. 212; Eeed vs. Phillips, 5 111. 42. A receipt in full of all demands is prima facie evidence of the payment of all notes and claims existing at the time receipt is given. Marsten vs. Wilcox, 2 111. 269. Though a wa^tten receipt may be explained by parol, yet it is prima facie evidence of the most satisfactory chai'aeter of the facts therein recited, and to impair its force the proof must be convincing. The proof offered to explain it must be clear and unmistakable. It must be overcome, if at all, by a clear prepon- derance of the evidence. Ennis vs. Pullman Palace Car Co., 165 111. 161; Neal vs. Hand- ley, 116 111. 418; Vigns vs. O'Bannon, 118 111. 334; Winchester vs. Grosvenor, 44 .111. 425. Where the proof offered to impair the force of an unambiguous written receipt is neutralized by the proof offered in its support, the receipt must be given its prima facie effect. Ennis vs. Pullman Car Co., 165 111. 161; Stephens vs. Neilson, 142 App. 263. (See Payment.) Third Persons: In adjusting the accounts between the parties, receipts taken by a party, from various persons engaged in the work, for money he paid them for their work, were regarded as proving nothing, in themselves, as they neither constituted evidence of the value of the work nor for whom performed. Grove vs. Miles, 58 111. 338. In an action by a co-debtor against another, to re-pay his moiety of debt paid, the receipt of the person so paid is 25rma facie evidence that payment has been made. Balance vs. Frisby, 2 Scam. 63. A receipt given for produce is no evidence of any indebtedness by the partv signing it. Abrains vs. Taylor, 21 111. 102. RECEIVINa STOLEN PROPERTY Proof of Theft: — Confessions: The fact that a larceny has been committed is known as the corpus delicti, and cannot be established alone by confessions of accused. Williams vs. People, 101 111. 382. — Suhstantive Crime: The offense of receiving or buying stolen property or aiding in concealing same, for gain, or to prevent the owner from repossessing himself thereof, with knowl- RECEIVING STOLEN PROPERTY 1073 edge that it has been stolen, is made a substantive crime subject to punishment without reference to the trial or conviction of the person committing the larceny. Watts vs. People, 204 111. 233; Huggins vs. People, 135 lU. 243. — •Nmrhe of Thief Need Not Be Proven: The name of the thief or of the person from whom defendant received or bought the property, not being a matter necessary to the identification of the offense, need not be alleged or proven. But where the pleader, although unnecessarily, alleges the com- mission of the larceny, burglary^ or robbery by a particular per- son, or that the property was bought or received of a particular person, the allegation becomes a matter of description, and must be proved as laid. Huggins vs. People, 135 111. 243. — What Tends to Prove: Testimony by boy who delivered the goods from the possession of the true owner, that he was told by a third party to telephone for a drayman and jend the goods to the accused, and that after they were delivered such third party paid him a certain sum as his share, i.i properly ad- mitted, as tending to characterize the transaction and as tending to establish the larceny of the goods. Lipsey vs. People, 227 111. 364. — Receiving Stolen Money: It is absolutely essential to a conviction for having received stolen money for gain, knowing it to have been stolen, that the prosecution should prove beyond a reasonable doubt that a larency of the money had been com m it ted. Williams vs. People, 101 111. 382. Guilty Knowledge: — Former Transaction: Proof that accused on a former occa- sion received some of the same goods through the same channel, is competent as tending to show guilty knowledge. People vs. Baskin, 254 111. 509; Lipsey vs. People, 227 111. 364. So proof of a series of connected transactions is competent though it tends to show defendant guilty of other offenses. People vs. Moeller, 260 111. 375. In a prosecution for receiving stolen property, consisting of pig iron, which it is charged was bought by defendant from teamsters engaged in hauling it to the owner's place of busi- ness, it is not error to allow a witness employed by a foundry company to testify that the defendant, about the time of the of- fense charged, offered to Sell the foundry company some pig iron which he claimed he was expecting, but that he did not, in fact, sell or deliver any. People vs. Feinberg, 237 111. 348. — -Distinct Offense: Evidence tending to prove a similar but distinct offense is not admissible for purpose of raising an infer- ence or presumption that the accused committed the particular act for which he is on trial. Schiiltz vs. People, 210 111. 196; Bishop vs. People, -94 111. 365. — Circumstantial Evidence: The knowledge of the theft need not be the actual or positive knowledge which one acquires from personal observation of the fact. It is sufficient if the circum- Ev.— 68 1074 RECEIVING STOLEN PROPERTY stances acconij)anyiiig the transaction l)e such as to make the accused hdicve the goods had been stolen. Huggins vs. People, 135 111. 243; Cohn vs. People, 197 111. 482. The fact that the accused knew the goods to have been stolen may be shown by circumstances. Lipsey vs. People, 227 111. 364; Delahoyde vs. People, 212 111. 554; Huggins vs. People, 135 111. 243; People vs. Feinberg. 237 111. 348; Guntber vs. People, 139 111. 526; XIV 111. Notes 313, §9. — At Time of Purchase: To convict a party of Ijuying stolen property for his own gain, knowing the same to have been stolen, there being no count for concealing or aiding in concealing the property, it is necessary for the People to prove guilty knowledge of the defendant, at the time of his purchase, that the property was stolen. Huggins vs. People, 135 111. 243. — Degree of Proof: Guilty knowledge on the part of the defendant is essential to the constitution of the offense. In or- der to justify a conviction, it is necessary for the prosecution to satisfy the jury beyond a reasonable doubt that the accused knew the goods had been stolen at the time he received them. CoLn vs. People, 197 111. 482; Huggins vs. People, 135 111. 243; Aldrich vs. People, 101 111. 16; May vs. People, 60 111. 19. — Attending Facts and Circumstances: Knowledge that property has been stolen may be shown by proof of attending facts and circumstances from which that inference arises. It may be shown by proof that the purchase was for much less than the real vallie of the property, that the party denied that the property was in his possession, or that he concealed it. So it may be shown by his failure to make reasonable explanation, the evil reputation of the person from whom he purchased or re- ceived, and the like. Huggins vs. People, 135 111. 243. — What Tends to Shoiv: That one from whom the accused is charged' with receiving stolen property had large amount of jewelry, which he offered at much less than its value, and that the accused did not list the articles which he bought, in a book kept for that purpose, but at first denied the purchase to the police, is sufficient to go to the jury on the question of his guilty knowledge. Weinberg vs. People, 208 III. 15. — Testimony of Accomplice: AVhile a conviction may be had upon the uncorroborated testimony of a confessed accomplice, yet such evidence is of doubtful integrity, and should be re- ceived with great caution. Colin vs. People, 197 111. 482; People vs. Feinberg, 237 111. 348; People vs. Moeller, 260 111. 375. — Possession of Stolen Property: The possession of recently stolen property, not satisfactorily explained, is presumptive evi- dence that the possessor himself stole the same ; but if he de- clares that he received such property from another person whose name is unknown, this may be taken as sufficient evidence that he received it from the thief, rather than that he stole it himself. Gunther vs. People, 139 111. 526. RECEIVING STOLEN PROPERTY 1075 — False Statements in Explanation: Where a party makes false statements in attempting to explain his possession or how he got the property, the presumption will be that he could not truthfully make such expfanation without inculpating himself. Gunther vs. People, 139 111. 526. — Value: Expert testimony as to value is admissible where it is shown that property of the kind in question could not be known by common ol)servation to be perfect or imperfect. Jupitz vs. People, 34 111. 516. So, as tending to rebut presumption of guilty knowledge from inadequacy of price paid, custom of dealers in goods of class in question is admissible. Andrews vs. People, 60 111. 354. Identity of Property: — ■Description: Indictment should describe the goods with accuracy, and a variance in this particular will be fatal. Williams vs. People, 101 111. 328. — Burden of Proof: Burden is upon the prosecution to prove the identity of the property received or concealed by the accused as being the same property alleged in the indictment to have been stolen. Sehultz vs. People, 210 111. 196. And it must be proven beyond a reasonable doubt. Bishop vs. People, 194 111. 365. — Introduction of Property: Where a charge is receiving brass couplings knowing them to have been stolen, it is proper for pur- pose of identifying and proving kind of property stolen, for People to bring a brass coupling into court and show by the testimony of witnesses that the couplings stolen were similar to the one brought into court and shown to the witnesses. But this kind of evidence is unnecessary. Proof that the articles that had been stolen were brass couplings and that the prisoner knew it, would have made the case Jupitz vs. People, 34 111. 516, Other property claimed to have been stolen at the same time, but which it is not claimed was ever in possession of accused, is not admissible in evidence. Scbiiltz vs. People, 210 111. 196. Ownership of Property: — Essential Averment: The ownership of the property is an essential averment and such ownership must be proven as laid. Aldrich vs. People, 225 111. 610. — Individual Does Not Sustain Allegation of Corporate: Where property alleged to be the property of a corporatioji, conviction is not authorized by proof of the ownership of the property in an individual. Aldrich vs. People, 225 111. 610. Weight and Sufficiency : — Elements of Offense: In order to sustain a conviction, it is essential, first, to show that the property alleged to have been re- ceived or concealed was in fact stolen; secondly, that the accused received the goods knowing them to have been stolen, guilty knowl- edge being an essential ingi^edient of the crime ; and lastly, that the 1076 RESCISSION OF CONTRACTS accused, for his own gain, or to prevent the owner from recovering the same, bought, received or aided in concealing the stolen goods. Lipsey vs. People, 227 111. 364; Aldrieh vs. People, 101 111. 16; Fauuce vs. People, 51 111. 311; XIV 111. Notes 313, §9. — Receiver Defined: One who receives into his possession or under his control, with felonious intent, any stolen goods or chattels with knowledge that they have 1ieen stolen. Watts vs. People, 204 111. 233. The proof must not only show the requisite knowledge that the property was stolen, but also that the accused received or accepted it for his own gain or to prevent the owner from re-possessing it. People vs. Israel, 240 111. 375. — Value of Property: Must be shown. Dalahoyde vs. People, 212 HI. 554; Thompson vs. People, 125 111. 256.' Accessory Before the Fact: One indicted for the crime of receiving stolen property may be convicted of the offense charged although the evidence shows he was an accessory before the fact, if he was not present at the actual time of the conversion of the goods. People vs. Feiuberg, 237 111. 348. Defenses : — Good Character of Accused: Proof of uniform good char- acter is entitled to great weight and should raise a doubt of guilty knowledge. Jiipitz vs. People, 34 111. 516; Addison vs. People, 193 111. 405. — Intent of Defendant: Where defendant, on behalf of the owner, receives stolen goods from the thief, for the honest purposp of restoring them to the owner without fee or reward, or the expec- tation of any pecuniary compensation, and in fact immediately after obtaining their possession restored all he received to the owner, and is not acting in concert or connection with the party stealing to make a profit out of the transaction, he will not be guiltv. Aldrifli vs. Peoy.le, 101 111. 16. — Explanation of Possession: The explanations that a person makes while in possession of stolen property at the time of finding it in his possession, are admissible in evidence for such party as explanatory of the character of his possession and it is for the .jury to wei^h them and consider whether they were made in good failh and were true, or only for purpose of self-exculpation. Bennett vs. People, 96 111. 602; Comfort vs. People, 54 111. 404. RESCISSION OF CONTRACTS See Cancellation of Instruments, Release, Waiver, Seals, Admissions, Parol, Fraud and Deceit, Abandonment. Fact of Rescission: — Burden of Proof: The burden of proving facts justifying rescission or that contract has been rescinded is upon party seeking to establish these facts. Schroeder vs. Walsh, 120 111. 403; Hall vs. Jarvis, 65 111. 302. One seeking to evade the enforcement of a written contract, on the ground that same was rescinded and an oral contract substituted RECOGNIZANCE 1077 therefor, has the burden of proving the making of the alleged verbal contract. Croft vs. Perkins, 17-1 111. 627. — Admissibility of Evidence: Rescission of contract may be implied from circumstances and conduct of parties. Natl. Ins. Co. vs. Met. Ins. Co., 226 111. 102. Evidence of a subsequent contract raises the conclusive presump- tion of the rescission of the former contract, as far as the two are inconsistent. Stowe vs. Eussell, 36 111. 18; Farrar vs. Tolliver, 88 111. 408; Gray vs. B. & X. Ey. Co., 120 App. 159. But the contract must appear to have been rescinded in toto. The contract must stand in all its provisions or fall together. A party to a contract cannot retain the consideration or a part of it, and refuse to be bound by the contract or a part of it. Babeock vs. Farwell, 215 111. 14; Bollnow vs. Novacek, 184 111. 463; Kellogg vs. Turpie, 93 111. 265. In an action upon a joint executory contract, evidence of repudi- ation of the contract by the defendant to one of the plaintiffs is admissible in favor of the other if there is evidence tending to show that the one to whom the repudiation was made was acting for both. Osgood vs. Skinner, 211 111. 229. — Weight and Sufficiency: Where an abandonment or waiver is relied upon, it must be shown to have been the clear intention of the parties to abandon the contract previously entered into. Court will indulge no presumption in favor of waiver, nor will it infer a waiver or abandonment upon slight proof. A parol waiver or dis- charge of a written contract must be clear and explicit and proved beyond a doubt. Evans vs. Gerry, 174 111. 595 ; Mix vs. White, 36 111. 484. Setting Aside in Equity : • — AV eight and Sufficiency: A misrepresentation which will justify the setting aside of a contract must be proven to contain the following elements : First, its form must be a statement of fact ; second, it must be made for the purpose of inducing the other party to act ; third, it must be untrue ; fourth, the party making the statement must know or believe it to be untrue ; fifth, the person to whom it is made must believe it and rely upon the truth of the statement ; sixth, the statements must be material. Gillespie vs. Fulton Oil Co., 236 111. 188; Prentice vs. Crane, 234 111. 302; Raynor vs. Modern Brotherhood, 157 App. 510. It is not always necessary in order to charge a vendor with fraud that he should "know his statements to be false, if he has no good and reasonalile grounds to believe them to be true, and the conse- quences are the same to the vendee as if he had had such knowledge. Coolidge vs. Ehodes, 199 111. 24. RECOGNIZANCE Writ of Scire Facias : — As Declaration: The scire facias is to be regarded as the declaration, and is substantially sufficient if it shows a recognizance 1078 EECOGNIZANCE properly entered into by the principal and his sureties, a default, judgment of forfeiture and issue of writ. McNemar vs. People, 183 111. 164. Writ stands in place of both the summons and declaration, and should contain every averment necessary to show a right of recov- ery ; and if there is a variance between the recognizance as set out in the writ and the judgment of forfeiture, advantage of such variance may be taken under a plea of mil tiel record. Fan-is vs. People, 58 111. 26. — Requisites Of: A WTit should clearly show before what court the recognizance was entered into, and for what olfense the prin- cipal in the recognizance was indicted; also that a judgment had been entered. Thomas vs. People, 13 111. 696. — Amendment: Scire facias, being both process and declar- ation, is subject to the same rules of amendment as declarations in other cases. The proceeding is not criminal in its nature, but to enforce the payment of money due on a contract. Peacock vs. People, 83 111. 331; People vs. Kubright, 241 111. 600. — Indictment: In a scire facias upon a recognizance, given in open court for the appearance of principal to answer to an indict- ment, it is not necessary to aver and prove that an indictment was ever found, to render the recognizors liable. Kepley vs. People, 123 111. 367; O'Brien vs. People, 41 111. 456; Mooney vs. People, 81 111. 134; Garrison vs. People, 21 111. 535. — Variance: Where a judgment was described in the scire facias as being against principal and five sureties, but from record offered in evidence it appeared that the judgment of forfeiture was against the principal and three sureties, it was held to be a fatal variance, and that execution could not be awarded against those 'against whom there w^as no judgment of forfeiture. Before a final judgment could be rendered, there should be a judgment of forfeit- ure against them. Farris vs. People, 58 Bl. 26. Wliere the recognizance was several only, and the scire facias averred that the recognizance was joint and several, and defend- ants agreed that they would take no advantage of a variance be- tween the scire facias and recognizance, and court entered a joint judgment against them, it was held that wdiile they could not take advantage of any variance, they had a right to insist that the judgment should be entered in accordance with the recognizance and not according to the averments of the scire facias. Briggs vs. People, 13 App. 172. Burden of Proof and Presumptions : On a plea of the death of the principal, in a recognizance, the burden of proof rests upon the defendant. People vs. Meacliam, 74 111. 292. Sickness of principal is inadmissible. Piercy vs. Peojile, 10 App. 219. A recognizance is, of itself, evidence that it was taken under the direction of the court. Chumasero vs. People, 18 111. 405; Sliattuck vs. People, 5 111. 478. RECOGNIZANCE 1079 Parol Evidence : — Identity of Principal: It is competent to prove by parol the identity of the principal. O'Brien vs. People, 41 111. 456. Upon writ issued upon a judgment of forfeiture against the principal and surety named in a recognizance, fact that the scire facias referred to principal by his full name, while the recognizance gave his surname and the initial of his given name, the same being so signed by him, does not constitute a fatal variance ; and evidence is properly admitted to show that person indicted and convicted was the person named in the recognizance. Allen vs. People, 29 App. 555. — Approval hy Sheriff: AMiere the record shows that a recog- nizance was taken and approved by the sheriff, parol evidence is inadmissible to contradict it, or to show that when same was filed there was no approval on it. Welborn vs. People, 76 111. 516. — Consent to Conditions: Defendants cannot show they did not stand in open court and consent to the conditions of the recog- nizance, since the effect of such plea is to dispute the record. McNamara vs. People, 183 111. 164. After a recognizance, which was entered into upon the examin- ation of a party charged with crime before a magistrate who had jurisdiction of the offense, has properly become a matter of record, the action of the magistrate cannot be impeached nor the proceed- ings assailed. Bulson vs. People, 31 Til. 409. — Official Character: Plea that the committing magistrate was not a legal officer, amounts to nothing. By entering into the recog- nizance, the cognizor admits the official character of person making commitment, which cannot be inriuired into collaterally. People vs. Baughnian, 18 111. 152. Execution : The certificate of a justice of the peace to a recognizance that it was taken, entered into and acknowledged before him is suffi- cient to show execution. People vs. Meacham, 74 111. 292. Weight and Sufficiency: Under a plea of nul ticl record to a scire facias on a recognizance, if the recognizance of record and judgment of forfeiture are given in evidence, this will be sufficient to authorize a judgment for the People, Peacock vs. People, 83 111. 331. The recognizance of record and judgment of forfeiture are sufficient evidence to authorize a judgment in action of debt, or, under proper averments, upon a scire facias. People vs. Witt, 19 111. 169. The recognizance of record, and judgment of forfeiture, are com- petent and sufficient evidence, under appropriate averments in the scire facias, to authorize judgment of execution according to the 1080 RECORDS form, force and effect of the recognizance, and, in action of debt, to authorize a judgment for the amount of the recognizance. Kepley vs. People, 123 111. 367; Biirrell vs. People, 103 App. 81; People vs. Trout, 151 App. 312; XI 111. Notes 509, §88. To sustain a judgment upon a scire facias on a recognizance there must be a judgment of forfeiture. It is not enough that a valid judgment is set out in a scire facias, — it must be given in evidence. Eubank vs. People, 50 111. 496. RECORDS See Ag^, Ancient Documents, Anti-Saloon Territory, Appeal Bonds, Best and Secondary, Bonds, Certificates. Contested Elections, Copies, Coroner's Inque,st, Depositions, Foreign Law, Former Adjudication, Former Conviction, Highways, Hospital Records, Identity, Impeachment, Judgments, Judges Docket and Minutes, Judicial Notice, Legislative Acts and Journals, Maps, Plats, Diagrams, IVIarriage Objections, Ordinances, Ownership, Presumptions, Patents, Police RECr ords, Principal and Surety, Production op Documents, Regis- ters of Births, Deaths and Marriages, Rules of Court, Seals, Surveys and Field Notes, Service, Taxes, Tax Receipts, Title, Weather, AVills, IN GENERAL: Defined: Books and documents of a public nature and of public authority are admissible in evidence, in a proper case, where there is an official duty to make the record. This rule includes official registers or records kept in a public office in which the officer is required, either by statute or by the nature of the office, to write down par- ticular transactions occurring in the course of his public duties, and under his personal observation, and it makes no ditference whether the entries are made by him in person or not, for it is suffi- cient if they are made under his direction as a part of the duties of the office. Or an entry in any record, official book or register kept in this country, or at sea or in any foreign country, stating a fact in issue or relevant thereto, and made in proper time by any person in discharge of any duty imposed upon him by the law of the place where such record book or register is kept, is admissibly in evidence. Their admissibility is placed, in part, upon the ground that they are kept for public reference by one who is under some duty to keep them. People vs. Joyce, 154 App, 13; XII 111. Notes 504, § 227. A record is a written memorial made by a public officer, author- ized by law to perform that function ; the memorial being intended to serve as evidence of something written, said or done. K. & L. of A. vs. Weber, 101 App. 488. Where the books upon which the entries of a public officer are made are such as the law requires to be kept, so that they consti- tute the official record of the acts performed by him in the dis- RECORDS 1081 charg-e of his official duties, such entries are, on general principles, admissible in evidence for or against all persons having any inter- est in them or in the facts to which they relate. Cassady vs. Trustees of Schools, 105 111. 560. Entries in a public record must have been made by a person authorized to make them. Gray vs. Waterman, 40 111. 522. Documents are not to be regarded as public records unless they are made under the sanction of law and official duty. Griffiths vs. San. Dist., 174 App. 100. As a general rule, the books and memorials kept by public officers, even though not required by statute, if they are neces- sary and appropriate to the discharge of the duties of the office, are considered as public records. Watts vs. Vill. of Eiver Forest, 227 111. 31. Records made by public officers for convenience onl}^ are not public records and official actions of which no record need be made are provable by parol. Wilson vs. MeClure, 50 111. 366; Fowler vs. Donovan, 79 111. 310. A book kept by a county officer, not required by law to be kept, is not strictly admissible as a public record. Co. of LaSalle vs. Simmons, 10 111. 513. Where the record is not required by law to be kept, and the books do not come within the rule relating to books of account, such record is inadmissible except to refresh memory of witness, under the rules relating thereto. Dorraneo vs. Dearborn Power Co., 233 111. 354. Existence and Identity of Record : The existence of a record cannot be proven by merely balanc- ing probabilities. If in existence, it proves itself; and if not in existence, the presumption is that it never existed, and those who affirm its prior existence must show clearly and satisfactorily that fact, — not merelv its probability. Worchester Bank vs. Cheeuey, 87 111. 602. Whether the instrument offered in evidence in a case is a record or not, is always open to inquiry. Anything produced as a rec- ord may be shown to be forged or altered. A record is said to be conclusive evidence, but what is "and what is not a record is a matter of evidence and mav be proved like other facts. Schirmer vs. People, 33 111. 275. Where the existence of a record offered in evidence is not in dispute, all questions as to the time when made and Vv^hether its recitals are true or not. must be settled by reference to it alone. Herrington vs. McCullom, 73 111. 476. Character of Book: The mere fact that data are first placed upon loose sheets of paper or blank forms does not necessarily establish that it con- stitutes a record. The record might properly be the letter press book. C. & E. I. R. R. Co. vs. Zapp, 209 111. 339. In the absence of other suspicious circumstances, it is not a sufficient ground for the exclusion of a public record, when offered in evidence, that some of its leaves are missing, where the book 1082 RECORDS is a public record required by law to })e kept by public officers for the benefit of any one interested. It is presumed, until eon- traiy is shown, that such officers have done their duty, and the right of the public to the use of such records cannot be destroyed by the mere fact that a portion of the original leaves of the book are gone. People vs. Board of Supervisors, 21 App. 271. The record kept by the authorized clerk is competent and it is not material as to how well bound the book is in which records are kept. People vs. Ezell, 155 App, 298; People vs. Doschio, 157 App. 51. Record Required by Law: Where the law requires public records of proceedings to be kept, such records cannot be contradicted, added to nor supplemented by parol evidence. City of Belville vs. Miller, 257 111. 244; Dunne vs. Youmans, 224 111. 34; People vs. Madison Co., 125 111, 334; XII 111. Notes 515, §324. Where the fact or transaction is not required by law or rule to be reduced to writing or be evidenced by a writing, parol evi- dence to establish such fact or transaction is not to be rejected upon the ground that it is secondary, merely because there is a writing evidencing such fact or transaction, providing the evi- dence offered is not substitutionary. Board of Education vs. Taft, 7 App. 571, Unless the law expressly and imperatively requires all matters to appear of record, and makes the record the only evidence, parol evidence is admissible to prove things omitted to be stated on the record. School Directors vs. Kimmell, 31 App. 537; Bartlett vs. Board of Education, 59 111. 364. Where it is not necessary to the validity of proceedings that record should be kept, parol proof is admissible to show what was actually done. Bartlett vs. Board of Education, 59 111. 364. Parol proof is competent to show payment of clerk's fees, Oberreich vs. Foster, 152 App. 302. Lost or Destroyed Records : Where records are lost or destroyed, their contents may be proven by parol. People vs. Cotton, 250 111. 338; Ashley vs. Johnson Co., 74 111. 392; Gage vs. Schroeder, 73 111. 44. Contents of lost record may be proven l)y parol, although un- certified copy exists. People vs. Cotton, 250 111. 338. Contents of lost record of mortgage may be proved by parol. People vs. Cotton, 250 111. 338. The rule that the record or an exemplified copy or sworn copy thereof must be produced is limited to cases in which it is within the power of the party relying on the record to produce such evidence. The rule in respect to judicial records is that before informal evidence of their contents may be received, the loss of their existence must be clearly accounted for. It must be shown that there was such a record, that it has been lost or destroyed or RECORDS 1083 is otherwise incapable of being produced, or that its mutilation from time or accident has made it illegible, rorsythe vs. Vehnieyer, 176 111. 359. Restored Records: Where the records of a court were restored after their destruc- tion, extrinsic evidence is not admissible to contradict same. Diuet vs. Eigmann, 96 111. 39. Amendment of Record: Tlie clerk may amend the record of a municipal corporation, so long as he has the custody thereof, according to his knowledge of the truth. And this he may do while in office or after re-elec- tion to the same office. Nor is it necessary that he should have some memorandum to amend from or the directions of the officer whose actions were recorded in such record. He has a right, under power derived from his official character, to amend the record according to the truth, without directions. Co. of Schuyler vs. M. B. & I. Co., 173 App. 435. Alteration of Record : If words have been struck out of a record so as to render it erroneous, witness may be examined to show that such words were improperly struck out ; but not to falsify the record by showing that an alteration whereby the record was made correct was im- properly made. Schiinier vs. People, 33 111. 275. Matter Not of Record : Official certificates of officers are inadmissible to create proof of the non existence of any fact or record. Boyd vs. C. B. & Q. E. R, Co., 103 App. 199. The certificate of a clerk is not competent to prove what is not in the record. A person who has examined offices or records may swear and so prove the matters as not there of record. City of Beardstown vs. Virginia, 81 111. 547; Cross vs. Pinckney Mill Co., 17 111. 54, Whether or not the records or writings show a certain fact cannot generally be proved by parol evidence unless the documents themselves are in court. Welsh vs. Shumway, 232 111. 54. In absence of statutory authority, the clerk having custody of records may certify that his copy of the records is a true copy, but he cannot properly certify to his conclusions as to facts shown or not shown by the records. Glos vs. Dyehe, 214 111. 417; Chicago vs. English, 80 App. 163. The record may be proved by a copy thereof, certified under the hand of the clerk having custody thereof, and his official seal, but he cannot properly certify to his conclusions as to facts shown or not shown by the records. A clerk cannot certify to the contents of a record and his certificate is not competent evidence of such contents. He can only certify that a paper is a true copy of the record. Glos vs. Dyehe, 214 111. 417. Where a clerk certifies to a paper as being a true copy of a record and further recites that it contains all in reference to certain premises, the conclusion of the clerk that there w^is noth- 1084 RECORDS ing else of record which related to the premises, described does not add to or detract from the proof of the material fact, if the paper certified to by the clerk contains matter material to the ISSUG Glos vs. Dyche, 214 111. 417. Public officers having legal custody, as such, of the books, records and journals, may authenticate by certificate a copy of any extract from any such journal or record, and by the rules of the common law, such certificate is competent evidence that the copy is correct, and such a copy is evidence of the contents of the record ; but such officer, unless authorized by statute to do so, cannot lawfully certify, generally, to any fact not shown by his record, or to any conclusions he may draw from an inspection of the record. People vs. Lee, 112 111. 113; Ewing vs. Cox, 158 App. 25. Voluminous Records: Experts are allowed to examine complicated account books and records and give their conclusions as to what tliey contain. Fre- quently any other course would cause a great loss of time and tend to confuse the jury. The court may naturally re(iuire the pro- duction of the originals. Keinke vs. Sanitary District, 260 111. 380; Boyle vs. I. C. E. E. Co., 113 App. 532; Guaranty Co. vs. Miit. B. & L. Assn., 57 App. 254, The books, papers or records themselves must be properly in evidence. The jury are not bound by the result thus ascertained, but may make their own calculations from the books and papers in evidence. Welsh vs. Sluimway, 232 111. 54. COUNTY RECORDS: Presumption : In passing judicially upon the records of county boards, where authority appears or is implied by law, such records will be con- strued according to their intent, and it will be presumed that the proceedings were rightfully had, in absence of all suggestion to contrary in the record. People vs. Lyons, 168 App. 396. Parol: Where a county board, in open session, agrees to have a parol contract, made by it with another, spread upon the records of its proceedings, which it fails to do, and the other party performs his part of the agreement, he may, in action against the county for breach of the contract, prove the same by parol as the best evi- dence obtainable. Co. of Franklin vs. Layman, 145 111. 138; Vermillion vs. Knight, 2 111. 97. Except in cases where payment of money out of a county treas- ury is specifically authorized by law to be made, no money or funds can be properly paid out unless upon an order of the county board, and in such case the order of the county board can only be shown by the record. Parol evidence is not admissible for such purpose. Hall vs. Jackson Co.. 95 111. 352. RECORDS 1085 Recitals : The record of removal of a coiuity treasurer from office by the county board is admissible in evidence as against the sureties on his bond, that being the best evidence of the fact of removal and the cause thereof. It is proper the ground of removal, as that the officer has been found to be a defaulter, should be recited in the record, and that part of the record containing such recital is admissible as well as the part showing the fact of the removal itself. Stern vs. People, 102 111. 540. Competency of Clerk and Certificate : While the offices of the clerk of county court and county clerk are distinct offices, yet there is but one incumbent, and that indi- vidual is a competent Mdtness to identify the record in his custody, either as clerk of the county court or as county clerk, and a reso- lution of the county board levying a tax is properly identified by him, although he testifies as clerk of the county court. People vs. C. V. & C. R. Co., 243 111. 217': XII 111. Notes 513, §309. If the office of the county clerk and that of clerk of the county court are both held by the same person, a certificate to records of the board of supervisors, signed by such person is not vitiated by the fact that he appends to his signature the designation of clerk of the county court. People vs. Lyons, 168 App. 396. The county clerk may establish the existence of a record in his office by testifying as a wdtness that the copy offered in evidence was a true copy of the instrument filed in his office. Lanysda'le vs. People, 100 111. 263. TOWN RECORDS: Legal Custodian: The town clerk is the legal custodian of the records, books and papers of the town. C. C. C. & St. L. By. Co. vs. Randall, 183 111 364. "Where the town clerk testifies that he was then acting as such and stated "this is the town record," and the record was then offered in evidence, it was sufficiently identified. Bullette vs. Goemble, 45 111. 218. ' Character of Book: The record kept by the clerk is competent, and it is not material as to how well bound the book is in which such records are kept. People vs. Ezell, 155 Apj). 298; People vs. Doschio, 157 App. 51. Amendment : The court may permit the record of an annual town meeting to be amended upon proper showing of the facts. C. & N. W. Ry. Co. vs. People, 174 111. 80. To justify amendment it is necessary that the action should have been actually taken. It is not permitted to show that done which was not in fact done. People vs. C. C. C. & St. L. Ry. Co., 261 111. 70. If, as a matter of fact, the levy of taxes was for a specific pur- pose, and the officer whose duty it was to keep the records of the proceedings of the town meeting failed and neglected to make 1086 RECORDS the proper record of the same, the record may be amended to correspond with the facts, upon sufficient parol proof. C, I. & W. Ey. Co. vs. People, 206 111. 565. Wliere the records of a town meeting are offered in evidence the county court may permit the town clerk, in the presence of the court, to amend the certificate of levy so that it would cor- respond with the record of the town meeting, in pursuance of which it was made, so far as specifying the purpose for which the tax was levied is concerned. C. & N. W. Ky. Co. vs. Teople, 183 111. 247; I. D. & W. Ky. Co. vs. People, 201 111. 351. It is error to permit the certificate of levy of a town tax to be amended upon application for sale, to correspond with the record of the town meeting, where such record is not introduced in evidence. C. C. C. & St. L. Ey. Co. vs. People, 205 111. 582. Upon application for a judgment of sale for road and bridge tax, the town clerk who wrote up the record of the meeting of the highway counnissioners may testify that the date of the meet- ing was incorrectly entered by him, where the tax levy certificate, made at such meeting, is correctly dated. C. I. & W. Ey. Co. vs. People, 207 111. 566. Town Meetings and Official Actions: The town record is the only competent evidence of the acts of the voters at the town meeting, and what was done at such meet- ing can only be proved by such record. C. I. & W. Ey. Co. vs. People, 205 111. 538; XIV 111. Notes 811, §24. A town clerk's record is the best evidence of a meeting of th^ official board. St. L. Bridge Co. vs. People, 128 111. 422. A township treasurer cannot be permitted to vary or contradict by parol testimony his records made as such official. Trustees of Schools vs. Crawford, 155 App. 170. The book in which the proceedings of the board of town audit- ors are required to be kept is the best evidence of claims allowed, and, as to such claims, is evidence of an account stated. Kankakee vs. McGraw, 178 111. 74. The record of a town meeting is competent to contradict the cer- tificate of the town clerk and the levy of a tax, where the first step in the levy can be taken only at a town meeting, and a record of every order or direction made at such meeting must be kept. B. & O. S. W. Ry. Co. vs. People, 156 111. 189. The record of the board of town auditors, showing the claims audited at its meeting, is inadmissible to sustain a town tax desig- nated in the record of the town meeting and in the town clerk's certificate as a tax for town purposes, where there is no certificate of the board of auditors showing the claims allowed. People vs. I. & I. Ey. Co., 206 111. 612. HIGHWAY COMMISSIONERS RECORDS: All corporat(; acts whether of townships or of highway commis- sioners are provable by record evidence only. People vs. Finley, 97 App. 214. RECORDS 1087 Signing: Records of highway commissioners must be signed by the pres- ident of the board to make the records admissible in evidence. Co. of Schuyler vs. M. B. & I. Co., 173 App. 435 j Gillett vs. Tay- lor, 48 App. 403. Varying By Parol : Highway Commissioners' record cannot be varied by parol. Seass vs. Monroe, 146 App. 56; Ey. Co. vs. Leaf River, 135 App. 559; People vs. Madison Co., 125 111. 334; XII 111. Notes 515, § 3-4. The record required to be kept by the town clerk, when the commissioners enter upon a man's land to dig or open a ditch, that they have previously determined, as an official body, that such entry is necessary in order to carry oft' the water from the highway, or to drain the slough or pond thereon, the evidence that the ditch is necessary for the purposes specified must be in the record of the official proceedings of the board. Parol evidence, upon proceeding to condemn land before a justice, that the digging of the ditch was necessary in order to carry off the water from the highway, is incompetent and inad- missible. The fact can only be proved by the record of the ofticial acts and proceedings of the commissioners of highways. Chaplin vs. Comrs. of Highvrays, 129 111. 651, In the matter of laying out, opening, altering, widening and vacating roads, the presumptions are all in favor of the regularity and validity of the various steps and proceedings that are antece- dent and preliminary to the entry of the order laying out, open- ing, altering, widening or vacating such roads, but subject to rebuttal by any person questioning the validity of such proceed- ings. Ancl these prior proceedings may be either attacked or sus- tained by parol evidence. Shields vs. Ross, 158 111. 214. Establishing Road: AVhere the sole reliance to establish a road is placed on the final order, the sufficiency of such order necessarily depends on the re- citals and orders contained in the same, and if the recitals and orders of the final order show the lack of any essential element, and such lack is not supplied by the papers relative to the ante- cedent proceedings, such order will be ineffectual to establish the road. Cox vs. Comrs. of Highways, 194 111. 355. Order of commissioners laying out road is admissible although - record showed no assessment and payment of damages, the act of 1851 not requiring record of anything but the order, Lowe vs. Town of Aroma, 21 App. 598. CITIES AND VILLAGES: Best Evidence : The record of a municipal body is the best evidence of its acts. City of Paxton vs. Bogardus, 201 III. 628. Parol Evidence : As a general rule, parol evidence cannot be received either to explain, enlarge or contradict the record of proceedings of a muni- 1088 RECORDS cipal body where the entry of record is made in pursuance of law. City of Paxton vs. Bogardus, 201 111. C28. If a municipal corjioration act illegally and makes no record of the transaction, parol evidence is competent to prove actual transaction. Persons injured are not remediless merely because officers, acting as a ])ody, made no record of their illegal acts. People vs. Mayor of Alton, 179 111. 615. Amendment : Where tlie officers of a municipal corporation having charge of the records produce the same as the records, same can only be attacked for fraud ; and if the record was not written up at the time it was examined by a witness, the clerk may amend the same according to liis knowledge of the trutli, so long as he has custody thereof as clerk. Nor will the writing up of the record according to the actual facts vitiate the acts of the council because it may not have been written up at the time when a certain witness sought to examine the same. Kyder Estate vs. Alton, 175 111. 94; Town of St. Charles vs. O'Mailey, 'l8 III. 408. Municipal records may be amended and no other proof besides the record is required to show amended record is true. It stands as an original record. Village of Gilberts vs. Eaebe, 49 App. 418. Copy Original Evidence: A copy of the record required by law to be kept by a city, duly certified as required by statute, is original evidence and its intro- duction in evidence does not depend upon the fact that the record itself is lost or destroyed. City of E. St. Lonis vs. Freels, 17 App. 339. Civil Service Record : The record of proceedings had before the civil service com- mission, as finally returned, imports absolute verity and is taken as conclusive. Joyce vs. City of Cliieago, 120 App. 398. Record of Electrical Engineer: A record kept by an electrical engineer in the employ of the Citv of Chicago is not admissible as a pul)lic record. Sullivan vs. Chi. City Ey. Co., 167 App. 152. TAX RECORDS: Competency: Tax records required by law to be kept are competent evidence to prove the facts which they show relating to taxes. The certi- ficate of redemption of land, made by the keeper, or a certified copy of the record of redemption are admissible as evidence of redemption. Bush vs. Stanley, 122 111. 406. Parol : Payment of taxes may be proved by parol. The receipt need not be introduced. Ilinehman vs. Whetstone, 23 111. 108; XIV 111. Notes 739, §335. Parol is incompetent to show levy of taxes. Feagan vs. Rosier, 68 111. 84. RECORDS 1089 Parol evidence cannot be introduced to supply the defects or omissions in the affidavit filed with the clerk for issuance of tax deed. If the affidavit does not contain the specific facts, the deed is therefore nugatory, regardless of what the real facts may be or what may be proven. Esker vs. Hefferman, 159 111. 38. The entries required to be made by the county clerk in the sale and redemption record, opposite the tract of land sold for taxes that such sale was erroneously made, whenever it shall be made to appear to his satisfaction that one of the conditions specified in the statute exists which rendered the tax void, is not the only competent evidence of the fact. Joliet Steel Co. vs. Kiep, 230 111. 550. RECORDS OF BOARDS OF EDUCATION AND SCHOOL DIRECTORS: Parol : There is no express statutory provision requiring the board of education to preserve record evidence of the posting of notices of an election, and the fact that the notice, and certificate that it had been posted, were on file in the clerk's office, but had been removed, may be shown by parol. People vs. Leaman, 256 111. 631; People vs. Hinekle, 256 111. 585. Failure of the clerk of a school board to keep a record of the taxes levied by school trustees does not invalidate the tax, and defects in certificate may be amended upon proper showing, but court is powerless to permit amendment of a certificate void ab initio, because not made at a meeting of the board. C. & N. W. Ey. Co. vs. People, 184 111. 240. The failure of a clerk of a board of school directors to keep a record of the action of the board in determining the amount of school lax necessary to be raised, and certifying to such tax levy, will not have the efi'ect of rendering such tax levied void, as the clerk, in extending such tax, is authorized to act upon the certi- ficate of the directors alone. Lawrence vs. Traner, 136 111. 474. BOARD OF LOCAL IMPROVEMENTS: Record of board of local improvements is admissible. City of Bellville vs. Miller, 257 111. 244. And cannot be contradicted by parol. City of Bellville vs. Miller. 257 111. 244. RECORDS OF PARK COMMISSIONERS: Records of park board are admissible, and of a proceeding at a special meeting though notice of call thereof was not signed by at least two trustees. Hay vs. P. D. & P. of Springfield, "181 App. 23. Printed copies of certain reports of park commissioners are not admissible over an objection that they are not the best evidence and that proper foundation for their admission has not been laid, where the secretary of the board testifies that he has charge of the records and does not know wdiere the original reports are or whether they are in existence, but that he has not made any search for them. City of Chicago vs. Mandel 239 111. 559. Ev.— 69 1090 RECORDS DRAINAGE RECORDS: Best Evidence : The record which the statute recjuires to be kept of the proceed- ings of farm drainage commissioners is the only legal evidence of their actions. People vs. Schenck, 252 111. 441. And cannot be contradicted, added to or supplied by parol. People vs. Carr, 231 111, 502. Drainage commissioners exercise special authority conferred upon them by statute, and there are never any intendments or presumptions of law in favor of their acts. AVhatever they do must be found from their record, and unless sufficient is found that it can be said that they have acted upon particular matters requiring action, the law does not and the court can. not presume that they have done so. People vs. Warren, 231 111. 519. Upon application for judgment and order of sale for a delin- quent drainage assessment, the records of the commissioners are admissible to show that the w^ork for which the assessment was levied was the same work intended to be done under a former void assessment, and that such work has been wholly or partly com- pleted under the original contract, entered into under such former assessment. People vs. Kuns, 248 111. 42. An agreement between a land owner and the commissioners act- ing as individuals and as agent of another land owner, has no place in the record of the drainage commissioners, and parol proof of the agi'eement is admissible. Dunn vs. Youmans, 224 111. 34. MINE RECORDS AND REPORTS: The report and record required by law to be kept of an acci- dent to a miner is admissible in evidence in action by injured miner for damages. Aetitus vs. Spring Valley Coal Co., 246 111. 32, The report of the accident in question, made by the general superintendent of the mine owaier to the state mine inspector, pur- suant to the statute, is not rendered incompetent by virtue of the fact that it contains statements not required by law to be made. Aetitus vs. Spring Valley Coal Co., 150 App. 497. CHURCH RECORD: Preliminary Proof : It is requisite to the admission of church records that it shall appear that the entries were made by persons whose duty it was to make them. Mnrpliy vs. People. 213 111. 154. Kept in Foreign Language: *! >'i^ The record book of a church kept in a foreign language is im- proper as evidence w^hen unaccompanied by translation. Stone vs. Evanffelieal L-utheran Church, 92 App. 77. NOTARIAL RECORD: The record, or a certified copy, of the notary is prima facie evi- RECORDS 1091 denee of the facts thefein stated as to matters required by law in the protest of neo^otiable instruments. Montelius vs. Charles, 76 111. 303. PRIVATE CORPORATION: Parol : Where the I'ecords are destroyed, parol evidence of conients thereof is admissible. Eose Hill R. E. Co. vs. People, 115 111. 133. In absence of written record of a corporation, parol evidence of the facts required to be kept is admissible. DuQiioiu Coal Co. vs. Thorwell, 3 App. 394. And mistake or ambiouity may be explained by parol. Forest Glen Brick Co. vs. Glade, 55 App. 181. Proof of verbal decision made by directors is proper, notwith- standing fact that a document exists which purports to contain the minutes of the meeting at which such decision was arrived at which contained no record of such decision. This is especially true if such document does not, on its face, purport to contain the complete minutes of such meeting. Housley vs. Feilehenfield, 152 App. 68. Where there is an omission to make any record of corporate proceedings, parol evidence is admissible to show same. Mandel vs. Swan Land Co., 154 111. 177; XII 111. Notes 491, § 116. As to Strangers : Corporation records are not per se admissible as against a stranger. The general rule is that corporate books are evidence between members but not against strangers, and this on the prin- ciple that a party cannot make evidence for himself and against a third party. Chase vs. S. & C. E. E. Co., 38 111. 215; Prot. Ins. Co. vs. Dill, 91 111. 174. As Between Stock-holders: The books of a corporation are admissible between corporation and its members in matters pertaining to corporate proceedings and arts, but where the eoii:)oration deals with its members as individuals, — in which case thej'^ stand in relation of strangers to it, — the corporate books are not admissible against members, as evidence of such private acts and dealings, and in application of this principle, directors and stock-holders stand on same foot- ing. Tl-ainor vs. G. A. Building Assn., 204 111. 616. ]\Iinutes written upon single sheet of paper, signed by secretary, and bearing initials of corporation are competent where it does not appear they were ever transcribed in a book. Chott vs. Tivoli Amuse. Co., 114 App. 178. The records of a private corporation, as between the members of the corporation, are admissible as i^ublic records, as evidence of the election of officers of the corporation, and of other corporate acts and proceedings. Trainer vs. G. A. Building Assn., 204 111. 616; XII III. Notes 509, § 268. The record or .journal of the acts or proceedings of a corpora- tion are admissible in evidence against a stock-holder, in suit to 1092 RECORDS enforce his personal liability to a creditor of the corporation. It is competent evidence to show and explain an amendment of the charter without first showing that the persons accepting the same were directors, when they are named as such in the jouriial. Dows vs. Naper, 91 111. 44; Culver Third Natl. Bank, 64 111. 528. The records of a corporation are competent evidence that the full capital stock has been subscribed, and together with the official certificate of complete organization, issued by Secretary of State, are prima facie evidence of such facts. McCoy vs. Col. Exposition, 186 111. '65Q. Ownership of Stock: Record evidence is not required to prove the ownership of stock, such fact may be shown by the admissions or the testimony of the officers of the corporation. Dows vs. Naper, 91 111. 44. Copies : l*apers, records and entries of a corporation may be proved by a copy thereof, certified under the hand of the proper keeper of the same, and such evidence is original evidence. Mandel vs. Swan Land Co., 1.54 111. 177; XII 111. Notes 507, §250. A resolution adopted by a private corporation is not such an instrument as is entitled, under the statute, to be recorded in the office of the recorder of deeds, and the record thereof, or a certi- fied copy thereof, by such recorder, is inadmissible to establish same. Mullanphy Sav. Bank vs. Sehott, 135 111. 655, The production of the certificate of the Secretary of State of the complete organization of a corporation, with a copy of the papers filed, authenticated under his hand and seal, and recorded in the office of the recorder of deeds, where the principal office of the company is located, is prima facie evidence of the existence of the corporation. Gnnderson vs. 111. T. & S. Bank, 199 111. 422. •Certificate of Incorporation: While a certificate of incorporation of the company, as recorded in the recorder's office of the county, may not be the evidence re- quired to show that such company is a corporation de jure, it tends to show it is a corporation de facto and is admissible for that purpose. Smith vs. Mayfield, 60 App. 266. LODGES AND BENEFIT ASSOCIATIONS: The records made by a beneficiary association are proper evi- dence against a member for puri^ose of showing a forfeiture of his rights of insurance for the non-payment of assessments made dur- ing his life ; and when such member has the right to change, at his option, at any time, the beneficiary in his certificate, the person named in such certificate having no vested right in the same, he or she will also be bound by the entries in the records of such associ- ation, the same as the deceased member himself. In such case, if the forfeiture occurs in the life of the member, no right will ever become vested in the beneficiary named in liis certificate. Such RECORDS 1093 records are at least prima facie evidence in respect to the rights of members of the association. Bagley vs. Grand Lodge, 131 111. 498: Anderson vs. R. F. Life Ins. Co., 171 111. 40. The books of an assessment company are not the only evidence of the good standing of its members. Belles vs. Mut. Life Assn., 220 111. 400. The loss of a member's good standing in the order must be shown by the minntes or records of the order itself, not by the statements of officers or members. In other words, it nuist be shown by some official action on the part of the organization. The order being a corporate body, its attitude towards a member can only be known through its actions as such corporation. Ind. Order of Foresters vs. Zak, 136 111. 185: Royal Circle vs. Achterrath, 204 111. 549. Publications of a mutual insurance company, generally cir- culated among its members and purporting to contain its rules and by-laws, are admissible as prima facie evidence of such rules and by-laws. The by-laws of a private corporation, as well as entries in its books, are not, strictly speaking, a record. Unless required by law, it is not necessary that the by-laws should be in writing. K. & L. of A. vs. 'Weber, 101 App, 488. Parol evidence is inadmissible to show proceedings of lodges, where written record of such proceedings exists. Swisher vs. Fidelity & Deposit Co., 164 App. 243. In action against a labor union for so contracting with railroad company as to compel discharge of plaintiff, records of the organ- ization are admissible to establish alleged confederacy. Sutton vs. Workmeister, 164 App. 105. BUILDING AND LOAN ASSOCIATION RECORDS: Records of the transactions of boards of directors may be proven in this State, tirst by a duly certified copy thereof; second, by a copy thereof, proved to be such by a credible witness, and third, by the production of the original records. Cantwell vs. Stockman's B. & L. Assn., 88 App. 247; Trainor vs. G. A. Bldg. Assoc, 204 111. 616. It is competent to supply an omission in the minutes by parol testimony, its effect being merely to explain or aid, and not to con- tradict the recorded minutes. Lurton vs. J. L. & B. Assn., 87 App. 395. Where the contract is one which the corporation has power to make, and is within scope of its franchise, neither party to the contract who has had the benefit of it can set up as a defense that legal formalities were not complied with or that the power was improperly exercised. Lurton vs. J. L. & B. Assoc, 187 111. 141. The fact that the minutes of the meeting made by the secretary of the association do not state that the preference was offered in open competition is not conclusive that such preference was not procured by competitive bidding, and the omission in minutes of this character may be supplied by oral testimony, where the oral testimony does not contradict the minutes. Hotchkiss vs. Norwood Park Assn., 229 111. 248. 1094 RECORDS SALE RECORDS: Mere memoranda for the convenience of a real estate firm, dis- closing no purpose to bind anyone may be proper to refresh the memory of a witness, but not as proof to the jury of a disputed fact. Admission of ' ' Records of Sales, ' ' containing entry of brok- ers, not parties to suit, are not admissible in action on note, as record of traiisaction. Cairnes vs. Hunt, 78 App. 420. Authority from owner of real estate to sell same cannot be shown by an entry, relating thereto, on the alleged agent's private record book. Boyd vs. Jennings, 46 App. 290. RAILROAD RECORDS: As an aid in determining the value of ears at the time of their destruction, ''historical records," technically known as Records of car equipment," which purport to show the time and place where the cars were built, the character of their construction and the extent to which they had since been repaired or rebuilt, are admis- sible, in connection watli the testimony of competent witnesses as to depreciation in value of cars from age and use, but they are not conclusive. P. C. C. & St. L. Ey. Co. vs. Chicago, 242 111. 179; XII 111. Notes 509, §267. But a book kept by an agent of a railroad company, in which the condition of property upon reaching destination is recorded, even though provided for by regulation of the company, is not competent in itself but may be used by such agent for the purpose of refreshing his recollection. Sincebaugh vs. C. C. C. & St. L. Ey. Co., 149 App, 642. Engine inspection book is not a book of account or public record, and not admissible in action for damages by fire by locomotive. B. & O. S. W. Ey. Co. vs. Tripp, 175 111 251; C B. & Q. Ey. Co. vs. Weber, 219 111. 372. RECORDS OF FEDERAL GOVERNMENT: Statutes of the United States provide that copies of any books, records, papers or documents in any of the executive departments, under the seals of such departments, respectively, shall be admitted in evidence equally with the originals thereof. So where an agree- ment between parties was endorsed "A true copy," signed by the captain of Corps of Engineers, with the seal of the chief engineer of the War Department, same was held admissible in evidence. Amer. Surety Co. vs. United States, 77 App. 106. An examined copy of an internal revenue record is admissible as a public record. People vs. Joyce, 154 App. 13 ; People vs. Moore, 161 App. 56. Maps, plats and guage readings from the records of the war department are admissible. Harney vs. Sanitary Dist., 260 111. 54. Patents of land from the United States do not come within the purview of the recording laws of the different states, when the terms employed do not specially include them. The original record RECORDS 1095 in the general land office from which patents are issued give notice to the world of their existence. Loniax vs. Pickejing, 165 111. 431; Doppelt vs. Geliebter, 173 App. 634. Nor need a deed requiring President's approval, or a record of such approval be recorded where the land is located. Lomax vs. Pickering, 165 111. 431. The official certificate of a register or receiver of a land office of the United States, to any matter on record in his office, is competent to prove the fact so certified. The exemplification of the books and records of the general land office, certified by the recorder, is competent evidence of the truth of its recital. Wyman vs. City of Chicago, 254 111. 202; Black vs. C. B. & Q. Ey. Co., 237 111. 500; Wilcox vs. Jackson. 109 111. 261; Seeley vs. Wells, 53 111. 120; Gormley vs. Uthe, 116 111. 643. An exemplified copy of an entry of the land office of the United States is admissible in evidence to show the location of a land war- rant upon a tract of tlie pulilic land by the holder of the same. Gorniley vs. Uthe, 116 111. 643. An exemplification of any record or any paper of record in the land office is primary proof and may be read whenever the original could be. Lee vs. Getty, 26 111. 77. . A copy of the records of the general land office of the United States, duly certified under the seal of the office, is admissible in evidence under the common law, without reference to the statute, and the fact that the copy is certified by the recorder of the general land office instead of by "any register or receiver of an}^ land office," as is provided in section 20 of Evidence act, does not render it inadmissible. Wyniau vs. City of Chicago, 254 111. 202. ATTORNEY'S RECORD: Merc entries in a book kept by an attorney in the case, showing the parties and containing memoranda of the nature of a destroyed file are not competent as a record. Llewollin vs. Dingee, 165 111. 26 PRIVATE WRITINGS: Presumption : Since the presumption always is that public authorities do their duty, it will be presumed, until contrary is shown, that a recorded instrument was recorded correctly. City of Peoria vs. Natl. Bank, 224 111. 43. The record of a deed is not made evidence by the statute, without proof that it is a true copy. Stowe vs. People, 25 111. 81. It will be presumed, in support of a certificate made by the clerk of the circuit court of another state attesting that a deed was ex- ecuted in conformity with the laws of such state, that the circuit court is a court of record, and such deed may be read in evidence under the second subdivision of section 20 of the act on conveyances, 1096 RECORDS providing therefor, when a certificate in conformity made by any clerk of a court of record in a foreign state is attached. G. P. bliooting Club vs. Crosby, 181 111. 266. Parol : Parol evidence is not the best evidence to show that a deed was recorded, and should not be allowed unless the proper foundation is laid for secondary evidence. Harpham vs. Little, 59 111. 509. Parol evidence of the contents of a record of a deed from a differ- ent county than the one in which the land is situated, or of a certi- fied copy thereof, is not admissible in evidence in any event. If a certified copy of such deed has been recorded in the county where the land lies, a certified copy from that record will be competent evidence ; and so of the original deed. Hardin vs. Forsythe, 99 111. S12. Index Book: Where the record of a deed is destroyed, the index book in which the deed is described, its record into the proper book certified, is good evidence of the fact that the deed is recorded. Alvis vs. Morrison, 63 111. 181; XII 111. Notes 496, §144. Entry Book: Is not admissible to prove an entry of land though certified by State Auditor to county clerk. Neidorci- vs. Bell, 174 111. 325; Huls vs. Bantin, 47 111. 396. Unacknowledged Instrument: The object of the recording laws in permitting unacknowledged instruments to be recorded is not to preserve evidence of title but to give notice of claim, which person dealing with the land must heed ; but the record proves nothing but notice. Winter vs. Dibble, 251 111. 200. A deed which has been of record more than thirty years is an ancient deed, and a certified copy thereof is admissible in evidence although the deed was not acknowledged as required by the law in force when it was executed. Bradley vs. Lightcap, 201 111. 511. A contract entitled to be recorded may be recorded without any acknowledgment or proof of execution whatever, but a certified copy of the record is not evidence until the instrument is acknowl- edged or proved as the law requires. McCormick vs. Evans, 33 111. 328. A cei-tified copy of the record of an unacknowledged instrument does not prove the contents of the instrument, where there is no proof of the execution of such an instrument and connecting the instrument executed with the one recorded. Winter vs. Dibble, 251 111. 200. Certificate of Recorder : An original deed bearing a certificate of having been duly re- corded is the highest class of evidence and may be read whether the official record book be in evidence or not. Alvis vs. Morrison, 63 111. 181. Original Record: Before a party can introduce a copy of a deed, he must lay the RECORDS 1097 IDroper foundation, and then he must introduce a certified copy thereof from the record book, not the book itself. Hanson vs. Armstrong, 22 111. 442. Original Will: The record of a duly probated will is not the only evidence of the will, and copies of the record are evidence in any court in this state. The copy of the record is receivable in evidence, not becau&e it is better evidence than the original, but because it is provided that the original shall remain in the office of the clerk. But wlien the original can be procured, and has been duly probated, it is admissible in evidence. Brack vs. Boyd, 202 111. 440. Original will mav be produced to verify interlineations in record. Brack vs. Bovd, 1^02 111. 404. Certified Copy of Will: A copy of a will which has been duly probated has no probative force unless attended by the record of the probate, which is a judi- cial act. Therefore, the will and its probate become judicial rec- ords and to be admissible in evidence in the courts of states other than that in which it was probated, the record must be duly ex- emplified and certified under the act of Congress. This rule applies with reference to foreign wills affecting real property in tliis state. Bishop vs. Billiard, 227 111. 382; Harrison vs. ^Weotberby, 180 111. 418; Amrine vs. Hamer, 240 111. 572. Where a will, executed in another state and probated there, and the records and proceedings in respect thereto are authenticated in conformity with the act of Congress providing for the authenti- cation of public acts, records and judicial proceedings in other states as to take effect in every other state, such will is admissible in evidence of courts of this state without having been probated here. Newman vs. Willetts, 52 111. 98 ; StuU vs. Veatch, 236 111. 207. See also, Dibble vs. Winter, 247 111. 243. Such certified copy of the will may be coraj)etent evidence upon the issue as to paramount title. Cath. Univ. vs. Boyd, 227 111. 281. A certified copy of a will is admissible in evidence although objected to because no court v>'as shown to have been in existence, where the order shows in what probate court it was rendered and by what judge, the date and jurisdiction of the parties. Turner vs. Hause, 199 111. 464. Not Required to Be Recorded: The record of an instrument not required to be recorded is not admissible, but may be competent as secondary evidence after proper foundation. Frazier vs. Laugblin, 6 111. 347; Mullanphy Sav. Bank vs. Schott, 135 111. 655. COPIES : Sworn Copy : An official record may be proven by an examined copy. People vs. Lyons, 168 App. 396; Norton vs. City of E. St. Louis, 36 App. 171; Xn 111., Notes 506, § 241. A sworn copy of an official record is competent. C. & E." I. E. R. Co. vs. Zapp, 110 App. 553, 1098 RECORDS A copy made by a witness, testifying he examined the records and the copy offered in evidence and had compared same and that such copy so ottered in evidence was a true copy, is a sworn or examined copy. Glos vs. Boetticher, 193 111. 534. An ordinance of a city in another state may be approved by pro- duction of the books in which it was recorded, but a sworn copy is competent evidence. L. N. & A. Ey. Co. vs. Shires, 108 111. 617. Sworn copies of papers and records, admitted in evidence, can not be disputed by parol evidence, where originals are not in court. The best evidence to impeach in such a case is the original record and papers, and not the testimony of witnesses who claim to have examined the originals. Glos vs. Holmes, 228 111. 436. Certified Copies : Public records are provable by certified copies. Katl. Council vs. O'Brien, 112 App. 40. Certified copies admissible with same eft'ect as originals. Diigger vs. Oglesby, 3 Ajip. 94. But containing matter not required to be kept as official record, incompetent. Globe Ins. Co. vs. Meyer, 118 App. 155. Must not state conclusions of clerk, but should certify a copy of the entry of record. Ewing vs. Cox, 158 App. 25. The clerk's certificate is competent to prove what it attests as appearing of record. Phillips vs. Webster, 85 111. 146. Informal certificate may be sufficient, if complete. Piatt vs. People, 29 111. 54. "A true copy," duly signed, held sufficient. Amcr. Surety Co. vs. United States, 77 App. 106. Erasures and Interlineations: Erasures and interlineations appearing in a certified copy of the record of an instrument form no sufficient reason for excluding the copy from evidence, since they may have been made by the copyist to conform to the record. Holbrook vs. Nichols, 36 HI. 161. Seals : Where the official seal on the original is indicated in the certified copy of the record thereof by the letters L. S., it must be held to answer the requirements of the law, and such certified copy cannot be excluded from evidence on the ground that no official seal appears to have been annexed to the original. Holbrook vs. Nichols, 36 HI. 161. It will be presumed, until contrary is shown, tliat a public official who signs a certificate attaches the proper seal. People vs. Lyons, 168 App. 396. Copies Differing: Where two papers are produced in evidence by parties, and pur- port to be copies of the record of the same instrument, made and certified by same officer, and verified b,y seal of same court, to one of which was affixed the letters L. S., and on the other nothing RECORDS 1099 appears to indicate that there was affixed to the certificate of acknowledgment in the original the notarial seal, except the state- ment of the officer who took the acknowledgment that it was given under his notarial seal; such certificate as to their being copies of the record each import verity and it is proper to leave the question, to the jury to determine from all the evidence as to which was the true copy. Holbrook vs. Nichols, 36 111. 161. Aid by Parol: Where a party offers in evidence a certified copy of a deed, it is competent for him to show by extrinsic evidence that the deed was in fact executed b^' a party of a different christian name than appeared from the certified copy and that the error occurring in the christian name in the copy was a mistake of the recorder in transcribing the original upon the records. The right of a party to prove the contents of a lost deed cannot be questioned, and had the original deed been produced, signed as the copy purported to have been, it would have been proj^er to show by parol evidence the same fact as to the execution. Nixon vs. Cobleigh, 52 111. 387. Where a certified copy of the record of an instrument shows no seal, extrinsic evidence is competent to show that the original in- strument contained a seal. Pease vs. Sanderson, 188 111. 597. Where a certified copy of a deed is introduced in evidence, and it was proven the letters L. S. were placed upon the copy by a party to the suit after the copy was made, it would not prove the copy incorrect as the clerk may have authorized him to add the letters before he gave the certificate that it was a correct copy. Holbrook vs. Nichols, 36 111. 161. JUDICIAL RECORDS: In General: It is essential to the validity of the record of a criminal case that it show the proceedings were had in a court regularly organ- ized, and therefore the convening order for the terra at which the conviction was had should appear. The record must show that the grand jury was sworn ; that the indictment was returned in open court ; that defendant entered a plea to the indictment ; that the trial jury was empaneled and sworn and that defendant was present at the trial. People vs. Gray, 261 111. 140; Hubbard vs. People, 197 111. 15; Sullivan vs. People, 156 111. 94; Parkinson vs. People, 135 111. 401. The mere oral announcement of the chancellor of his decision and the grounds upon which it is based, or the reducing them to writing, is no more than the minutes taken. The whole matter is completely under the control of the chancellor until the final decree has been recorded. Until that time, he may alter, amend, change or even disregard all that he has said in his minutes. Hughes vs. Washington, 65 111. 245. The draft made for the guidance of the clerk is not the decree of the court. Horn vs. Horn, 234 111. 268. 1100 RECORDS A decree is to he considered as enrolled when it is signed hy the chancellor and filed by the clerk, and the term has elapsed dur- ing which it was made. Hiird vs. Gooilrich, 59 111. 450. The party in whose favor a decree is pronounced should write it out in due form and submit it to the chancellor for approval, which is the authority of the clerk to enroll it upon the record. Cameron vs. ainton, 259 111. 599; Stevens vs. Coffeen, 39 111. 148. In ordinary judgments, following a fixed form, the clerk writes the record, but it is not the duty of the clerk to draw decrees, but only to record them when drawn by the solicitor and approved by the chancellor, ii " Horn vs. Horn, 234 111. 268 ; Schneider vs. Seibert, 50 111. 284. It is not necessary that the decree should be signed by the chancellor, but its entry in the record by the clerk gives it validity. Horn vs. Horn, 234 111. 268; Dunning vs. Dunning, 37 111. 306. The best evidence to establish the existence and terms of a judg- ment is the record itself, or a properly authenticated copy of such record. Walter vs. Kirk, 14 111. 55; Weis vs. Tiernan, 91 HI. 27; Weiemers vs. Cole, 157 App. 599; XII 111. Notes 490, §112. The draft of a decree ordered to be entered in a cause is not the best evidence of the decree that has been entered. Huntington vs. Aurand, 70 App. 28. The minutes of a judge on his docket, or memorandum upon files or documents cannot be sul)stituted for tiie record of the court. The record alone is competent to prove that which is re- quired to be proved by the record. McGuire vs. Goodman, 31 App. 420; Trogdou vs. Cleveland Stone Co., 53 App. 206 ; Gurnea vs. Seeley, 66 111. 500. It is the duty of the clerk of the court to attend the sessions thereof; preserve the files and papers thereof; make and preserve complete records of all proceedings and determinations thereof; and to enter of record all the judgments, decrees and orders of the court before the final adjournment of the respective terms thereof, or as soon thereafter as jiracticable, and thus will be pre- sumed to know what the court determined and from that knowl- edge and the minutes made by the presiding judge upon the an- nouncement of his decisions, properly enter up the judgment so rendered, and the mere fact that the entry was made partly on one day and partly on another, raakes no difference so far as the validity of the entry as evidence of the judgment is con- cerned. Palmer vs. Emery, 91 App. 207. The record of a proceeding in a court of record is admissible even though wa'itten up after the empanelling of the jury in a later case. Such record made up from the minutes of the judge imports verity. Con. Coal Co. vs. Schaefer, 135 111. 210. The existence of a record not being in dispute, all questions relating to the time when it was, in fact, made, on what authority made, and whether its recitals were true or not, should, when it RECORDS 1101 is offered as an instrument of evidence, be settled by reference to it alone. Harrington vs. McCuUom, 73 111. 476. Order of court must be a matter of record and cannot be shown by parol when no record thereof has been made. Mclntyre vs. People, 103 111. 142. Variance or inconsistency in record may be explained by evidence de hors the record. People vs. Young, 72 111. 411, But not to supply a defect in the record as to a matter which is essential to its validity or which is by law required to appear. Young vs. Thompson, 14 111. 380. Judgments entered in abbreviated form are not proper record. ' Eiehter vs. Burdock, 257 111. 410; Stein vs. Myers, 253 111. 199. Matters in Pais : The number of terms of court in a certain year, the names of the judges presiding, whether there were juries in attendance, though they are facts which might appear of record, are in the nature of matters in pais and susceptible of proof by parol evidence in col- lateral proceedings. Massey vs. Wescott, 40 111. 160. Judicial Notice: It is not necessary to prove that the record book of a court is such record when offered in evidence in such court. A court will take judicial notice of its own record books, and they are proof themselves when offered in evidence. Bank of Eau Claire vs. Eeed, 232 111. 238; Waterbury Natl. Bank vs. Eeed, 231 111. 246; Robinson vs. Brown, 82 111. 279; Ladd vs. Ladd, 252 111. 43. The court will take judicial notice of the state of the pleadings and the various steps which have been taken in a particular cause, and consequently the judge must take notice of his own official acts in the progress of such cause, and he therefore needs no proof to advise him of what he had done in such case. Sechrist vs. Petty, 109 111. 188; Taylor vs. Adams, 115 111. 570; Worlds Col. Exp. vs. Lehigh, 94 App. 433. Original Record: The original record of a court may properly be used instead of a copy where the case in which it is offered is to be tried in the same court in which it was made, though one was in law and the other in equity. Taylor vs. Adams, 115 111. 570; Prescott vs. Fisher, 22 111. 390. "While it is improper in the clerk of a court to allow the records or files in a cause to be taken from his custody to be used in the courts of a different county, yet if they are produced in another court and identified, they are admissible. Stevison vs. Earnest, 80 111. 513. While copies of proceedings and judgment before a justice of the peace, certified by him, are received as evidence of such pro- ceedings and judgment, the original document, duly proved to be such, is also competent evidence. Willoughby vs. Dewey, 54 111. 266. 1102 RECOKDS Papers and Files: The papers of a cause, when filed, became a part of the record as fully as if copied iuto the record book of the court. , Harding vs. Larkin, 41 111. 413; Stevison vs. Earnest, 80 111. 513. And prove themselves when offered in evidence in the same court. Prescott vs. Fisher, 22 111. 390. "Writs issued out of a court and the returns thereon form a part of the records thereof when filed and are competent as such. Dunlap vs. Berry, 5 111. 327. An affidavit of a party is competent evidence against himself,, when it is relevant to the issue. It stands on the same footing as any other declaration made by him under oath. Farrell vs. People, 103 111. 17. The recitals of service upon a summons are not substantive evi- dence in a cause. Haywood vs. Dering Coal Co., 145 App. 506. Part of Record: A part of a record may be introduced to prove collaterally that a judgment or decree was had. Mayer vs. Brensinger, 180 111. 110. No placila need appear. Turner vs. Hause, 199 111. 464; McMillan vs. Lovejoy, 115 111. 498. Where a copy of a decree shows in what court it was rendered, by w^hat judge, jurisdiction of the parties, in a ease where the court has jurisdiction of the subject matter, it is admissible in evidence for collateral purpose, although no placita appears. A complete transcript of the record is not necessary in such case, the suit not being upon the decree. Phillips vs. Webster, 85 111. 146. It is not necessary to prove the entire record, but only so much as affects the question in issue. Walker vs. Doane, 108 111. 236; Vail vs. Iglehart, 69 111. 332. If the opposite party desires more of the record he must himself offer it. Walker vs. Doane, 108 111. 236. Lost or Destroyed Records: Where a record of a judgment has been lost or destroyed, it may be proven by parol. Forsythe vs. Vehmeyer, 176 111. 359. The rule that the record of a judgment, or an exemplified or sworn copy thereof must be produced to sustain action of debt thereon, is limited to cases in which it is within the power of the plaintiff to produce such evidence, and does not apply where the record of the judgment has been destroyed, and for that reason cannot be produced. Forsythe vs. Vehmeyer, 176 111. 359. WHiere records of proceedings by an administrator, for an order to sell land, have been destroyed, and there is no written evidence of sale, parol evidence is admissible to show same. Felix vs. Caldwell, 235 111. 159. The loose statements of a party that he had heard the records of a court were destroyed, or had read it in the newspaper, is not sufficient to admit secondary evidence of a judgment. If the rec- RECORDS 1103 ords have been destroyed the fact may be proven by calling the officer who has custody of the records, or any person who knows the facts. Weiss vs. Tierney, 91 111. 27, Restored Record: A record restored by authority of law is admissible. Trans. Co. vs. Gill, 111 111. 541. Amending Record: Clerk of coui-t, upon record being introduced in evidence, can- not testify as to mistake and amend record by parol. Godfrey vs. Phillips, 209 111. 584. Collateral Attack: ~Prcsi()iii>lion: Under collateral attack upon a decree of a court exercising common law and chancery powers, while exercising such powers, all intendments and presumptions will be indulged which are necessary to sustain its decree, unless want of jurisdiction is made to appear. Harrell vs. Grogan, 219 111. 288; XIII 111. Notes 101, §366. Where a court has jurisdiction of the subject matter and of the parties to the litigation, its judgments or decrees must be held valid when questioned collaterally. Spring vs. Kane, 86 111. 580. The probate courts are courts of limited jurisdiction, but w^ien acting within the scope of their jurisdiction, as liberal intend- ments will be indulged in favor of their acts as courts of more gen- eral jurisdiction. Chi. T. & T. Co. vs. Brown, 183 111. 42. A judgment of the county court allowing a claim against an estate imports verity, and it cannot, in the absence of fraud or collusion, be impeached by the administrator or heirs, so far as it affects personal property, although payment or part payment since its rendition may be shown. Sinnickson vs. Perkins, 231 111. 492. — Must be by Record: A presumption cannot be permitted to contradict the express findings of a record. A judgment of a court of general jurisdiction can only be attacked in collateral proceedings by the record itself. Seilbeck vs. Grothman, 248 111. 435. The record of a court imports verity and cannot be contradicted or amended except by other matter of record made by or under authority of the court. Nicholson vs. Loell, 253 111. 526. The record of a court can never be contradicted, varied or ex- plained by evidence de hors the record itself. The record im- ports absolute verity, and it must be tried and construed by itself. W. St. L. & P. Ey. Co. vs. Peterson, 115 111. 597. Under a plea of md tiel record, party may show the judgment to be void for want of jurisdiction, if that fact appear from an inspection of the record, but he cannot attack it collaterally by contradicting the record. Bank of Eau Qaire vs. Reed, 232 111. 238. Where the record of a cause shows that a defendant appeared 11U4 RECORDS and answered the bill filed against him, his testimony cannot be admitted to disprove that fact. Eobinson vs. Ferguson, 78 111. 538. The record of a judgment in action on the judgment may be used in evidence on the trial, and when introduced affords con- clusive evidence of the facts stated in it. If, however, a record states that the defendant appeared by attorney, it is conclusive proof that the attorney appeared for him, but only prima facie evidence of his authority to appear. Welch vs. Sykes, 8 111. 197. — Parol Inadmissible: Parol evidence will not be received for the purpose of impeaching or contradicting the record. Eubel vs. Title Guaranty Co., 199 111. 110. The record of a court must be judged by itself alone, and its invalidity cannot be shown by evidence aliunde. Sargeut vs. City of Evanston, 154 111. 268. Validity of execution cannot be established by parol contrary to record. Dillman vs. Nadelhoflfer, 23 App. 168. — Judgment hy Confession: The record of a couri showing judgment by confession in open court imports verity and can- not be contradicted by parol evidence. The record of such judg- ment is the only proper evidence of itself, and is conclusive evi- dence of the fact of the rendition of the judgment and of all the lawful consequences resulting from that fact, both as against the parties to the judgment and all others whose interests are af- fected thereby. Weigley vs. Matson, 125 111. 64. When the record is once made up, it is conclusive upon all parties until altered or set aside by a court of competent juris- diction, and all questions relative to the time when it was in fact made or in relation to the authority on which it w^as made, or in respect to the truthfulness of its recitals, must be settled by reference to the record alone. W. Chi. St. Ky. Co. vs. Morrison, 160 111. 288. Recitals can only be corrected by application to court. Roche vs. Beldam, 119 111. 320. That judgment by confession was rendered in chambers prior to opening of court cannot be shown. Hauser vs. Schlesinger, 125 111. 230. — Date of Entry: Fact that a judgment was ordered by judge at a previous term cannot be shown by parol. Tynan vs. Weinhard, 153 111. 598; Wesley Hospital vs. Strong, 233 "ill. 153; XIII 111. Notes 102, §373. Where the record shows it was written up on the day of the rendition of a judgment, this will import verity and cannot be contradicted by parol evidence. Lawver vs. Langham, 85 111. 138. The rule that the date of a judgment cannot be contradicted by parol applies to judgments of a justice of the peace. Wiley vs. Southerland, 41 111. 25. Evidence showing that the execution was issued and in the hands of the sheriff before judgment was actually written up is relevant and proper. This would not contradict the record, but RECORDS 1105 evidence tending to show the judgment was written up on a day- different from its date is improper. Knights vs. Martin, 155 111. 486. A judicial record, if deficient or imperfect,- cannot be aided by- evidence de Jiors the same. Young vs. Thompson, 14 111. 380. • — Service and Return of Process: Where the want of juris- diction does not appear on the face of the record, it may be shown by evidence outside the record, provided the evidence is clear and satisfactory and the rights of third parties have not intervened. Every presumption in favor of the return of process is indulged and will not be set aside upon the uncorroborated testimony of the party upon whom service purports to have been had. kochinan vs. O'Neill, 202 111. 110. Parol evidence is inadmissible to contradict the return of serv- ice of process by the sheriff as against persons who have acquired rights based upon such summons. Rivard vs. Gardner, 39 111. 125. Where decree or judgment finds that certain persons have been duly notified and made parties to the proceedings it may be con- tradicted and overcome by other parts of record proper such as the summons on file. Glos vs. People, 259 111. 332, But cannot be contradicted by parol or other evidence out- side of the record itself. Drainage District vs. Highway Commr., 238 111. 521. Where court recites in its judgment or decree that there was proper service, this recital is not disproved by the mere pres- ence in the record of a defective writ or return. Chi. Dock Co. vs. Kinzie, 93 111. 415; Mulvey vs. Gibbons, 87 111. 367; Turner vs. Jenkins, 79 111. 228. Failure of a judgment to recite service of process does not render it inadmissible, where the process itself is in evidence and shows service. Kinkade vs. Gibson, 209 111. 246. Where personal service is claimed, it can only be shown by the officer's return. Barnett vs. Wolfe, 70 111. 76. (See Service.) Where service is by summons, parol evidence cannot be heard to prove or aid it. Barnett vs. Wolfe, 70 111. 76; Dickinson vs. Dickinson, 124 111. 483; Bottsfield vs. O 'Conner, 57 111. 72. The return of the sheriff on the execution is not evidence of anything relating to title of property. Its only office is to show satisfaction or part satisfaction or a failure to make satisfaction of anv part of the judgment. Kimmell vs. Meier, 106 App. 251; Holman vs. Gill, 107 111. 467. Dockets and Judgments of Justice of Peace : Where a record of a justice of the peace shows jurisdiction and the essential proceedings had, such record cannot be impeached, contradicted or varied by parol evidence. Gartield vs. Douglas, 22 111. 100; Satterly vs. Hickman, 38 App. 139. So parol testimony is incompetent to contradict the endorse- Ev.— 70 1106 RECORDS ment in a justice's record, thus rendering a judgment valid which would otherwise be void. Pfeiffer vs. MeCiillough, 115 App. 2.51. It is not competent to show by parol that a justice intended to enter a different judgment than the one which he recorded in his docket. „. V ^ . Birma vs. Muir, 152 App. 505; Zimmerman vs. Zimmerman, 15 ill. 85. Where the jurisdiction of an inferior court, like a justice of the peace, depends upon a fact which the court is required to ascertain and settle, if the court has jurisdiction of the parties, the decision of fact is conclusive and not subject to collateral at- tack. Eice vs. Travis, 216 111. 249; XIJI 111. Notes 100, §364. To entitle transcript of a judgment of a justice of peace of another state to be received in evidence, jurisdiction of subject matter must be shown. Cavanaugh vs. Morris, 160 App. 55; Trader vs. McKee, 2 111. 5o7. The disposition of a suit before a justice cannot be proven except by the record. Stillman vs. Palis, 2.3 App. 408. Parol evidence is admissil)le to show what was adjudicated upon, but not what the adjudication was. Zimmerman vs. Zimmerman, 15 111. 85; Birma vs. Miur, lo2 App. 505. A justice of the peace may testify that at the time a certain proceeding was had, he was acting as a justice of the peace, and that a certain docket and the entries therein were his. People vs. Ham, 73 App. 533. A justice of the peace is a competent witnesses to prove his docke^t and to explain entries upon it, and also to identify the cause and parties. Haven vs. Greene, 26 111. 252. In an action where it is sought to prove the recovery of a judg- ment before a police magistrate, the court would be inclined to hold if a formal entry of judgment appears on a magistrate's docket, on which it also appears he has issued an execution, in a case over which the law gives him jurisdiction, it will be presumed, until rebutted, that he had jurisdiction of the persons, the docket reciting that a summons was issued and returned duly served. Willoughby vs. Dewey, 54 111. 266; Cf. People vs. Koebler, 146 App. 541. A docket of a justice of the peace or a police magistrate, duly proved by him, and showing the entry of a judgment, is compe- tent evidence even though it would not thereby appear that the magistrate had jurisdiction either of the subject matter or the persons, as competency of evidence does not depend upon the extent to which facts are proven thereby. Willougliby vs. Dewey, 54 111. 266. It is not competent to prove by parol that a judgment was ren- dered by a justice; his docket or a transcript thereof is the best evidence. Walter vs. Kirk, 14 HI. 55. Unautheuticated tiles of an alleged suit before a justice in a HECOKDS 1107 foreign state are not admissible to prove the facts that they pur- port to show. Michaels vs. People, 208 111. 603. A justice's docket cannot be impeached by extrinsic evidence. Reddish vs. Shaw, 111 App. 337; Downey vs. People, 117 App. 591; Garfield vs. Douglas, 22 111. 100. Authentication : — hh General: A judgment, when it is either the foundation of an action or material to any issue therein, must be proved according to the rules applicable to the proof of other like facts, and hence the best evidence of which the nature of the case ad- mits must be produced. It would therefore consist, primarily of the record itself, which is usually produced when the proof is made in the court where the record remains ; but when in another, from necessity resort must be had to secondary evidence of its contents, which is ordinarily a copy. But whether the record itself, or a copy, it must be verified as such under the sanction of an oath, or of some other high authority such as the law re- spects no less, by which is meant a sufficient seal. In the case of a copy, an oath in direct verification of it, or of the signature and authority of the person certifying to it, is dispensed with only when the attestation is under such a seal as proves itself, that is, which the court of its own knowledge, without other proof, recognizes as genuine. Thompson vs. Mason, 4 App. 452. — -Not Controlled hy Common Law: The question of the proper and sufficient certification of a judicial record is not a question controlled by the common law, so that authority thereon can be found and cited from any state, but the question is controlled by the law of the state from whence the record comes. That is, the evidence must be such as is used in the state whence the record comes, for the certification of its own records, not such as in that state ^he courts may have held to be sufficient when the record has come from another state there. Gundry vs. Hancock, 147 App. 49. The usual and proper, if not the only, modes of authenticating foreign judgments are either by an exemplification under the great seal, or by a copy proved to be true by a witness who has personally compared it with the original record in the proper custody, or by the certificate of an officer authorized by law, which certificate must be properly authenticated, by proving the signature of the certifying officer and the genuineness of the seal affixed; or if the court has no seal, by proof of that fact and of the signature and authority of the certifying officer who certi- fied he is the keeper of the records of the court. Thompson vs. Mason, 4 App. 452. Certificate must show that officer is keeper of the records. Campbell vs. Miller, 84 App. 208. — Act of Co7igress Not Exclusive: The act of congi'ess pro- vides a method of authenticating the judgments of a sister state, but it is not exclusive. Our statute provides that the records of courts may be proved by a copy thereof, certified under the hand of the clerk having custody thereof, and the seal of the court. 1108 RECORDS This statute is not inconsistent with the act of congress, and ap- plies to foreign jndgnients as well as domestic. It is a proper method of authenticating records. People vs. Miller, 195 111. 621. — Where Sufficient in Foreign State: When the transcript of the proceedings and judgment in a suit before a justice of the peace in another state is authenticated in such a manner as to be admissible in evidence under the laws of such state, in other counties than that in which the judgment was rendered, then the authentication is sufficient in this state. Belton vs. Fisher, 44 111. 32; XIII. 111. Notes 145, §671, Where the transcript of a judgment in a court of another state is certified by the clerk of the court, and the presiding judge certifies that the attestation is in true form, it is a substantial com- pliance with the act of congress. Horner vs. ypelman, 78 111. 206. Under the act of Congress the records and judicial proceed- ings of the courts of any state are entitled to the same faith and credit in every other state which they have in their own, pro- vided they be attested by the clerk, under the seal of the court, and the judge or presiding officer certify that the attestation of the elerk is in accordance with the law or usage of the state where the proceedings were had. It is not necessary that the judge should certify that the per- son who attests the record is the clerk, or that the seal is the seal of the court. The seal speaks for itself, and is presumed to have been affixed by the person having custody thereof, and that he had authority to do the act. Ducoiiimnn vs. Hysiiiger, 14 111. 249; Hull vs. Webb, 78 App. 617. — Judge and Clerk One and Same Person: Where the offices of judge and clerk are filled by one person, a certificate should be made by such judge as clerk, and then as such judge. He should certify that his attestation as such clerk is in due form, and when so authenticated records are admissible in evidence. Speueer vs. Laiigdon, 21 111. 192. — Part of Record: A certificate of the clerk certifying that the record is complete must be presumed to be correct and can- not be impeached by a mere inference that some portion of the transcript, not shown to be a necessary part of the record, is ab- SGllt Light vs. Eeed, 234 111. 626. If a decree is certified by the clerk of the court, as the decree of the court, in a particular case, as appears by the record, the same is admissible in evidence and his certificate is made by the statute sufficient evidence of what it attests. Phillips vs. Webster, 85 111. 146. The fact that a judgment was entered and that there is a record thereof, if shown by the authentication, is a compliance with the federal statute. Joslin vs. Fuller, 166 App. 43. The fact that transcript does not show organization of court, the term of such court, or the judge who presided at the trial, or that the judge who heard and entered the judgment was the RECORDS 1109 same judge who certified to the transcript, or that the transcript only tended to show a portion of the records of the court and does not show the name of the defendant in the title of the said cause, does not render such judgment inadmissible. Joslin vs. Fuller, 166 App. 4S. The absence of a placita is not a valid objection to the intro- duction of a transcript purporting to show a judgment of a sister state. Joslin vs. Fuller, 166 App. 43; McMillan vs. Lovejoy, 115 111. 498. — By Deputy: The general rule is that the certificate of an officer, when made by a deputy, must be in the name of. the offi- cer, but under statute providing, in case of vacancy, absence of officer or inability to act, the deputy may act. A certificate made by a deputy and signed by him as such will be presumed to have been made by reason of such vacancy, absence or inability of the officer to act. Hull vs. Webb, 78 App. 617. The deputy, though a deputy merely, is made the officer and a certificate made by such deputy and signed as deputy will be pre- sumed to have been made by reason of a vacancy or because of absence or inability of the officer. , Garden City Sand Co. vs. Miller, 157 111. 225. It will be assumed in the absence of some evidence to the con- trary that the deputy signing his chief's name did bo with authority. Sullivan vs. Algren, 157 App. 12.^. A transcript of the circuit court record, in due form, and under seal of the court, is admissible in evidence although it is attested in the name of the clerk by one acting as his deputy. Schott vs. Youree, 142 111. 233. — Sworn Copies: Section 18 of the act relating to evidence provides that any such papers, entries and records and ordinances may be proved by copies examined and sworn to by credible wit- nesses. The certificate of the clerk is not necessary and witness producing document may testify that he examined the records and the copy offered in evidence and compared the same and that the copy so offered in evidence was a true copy. Glos vs. Boettieher, 193 111. 534; C. C. & St. L. Ey. Co. vs. Bender, 69 App. 262; People vs. Miller, 195 111. 621. — Where Court Abolished: Where the court has been abol- ished, the records thereof, when offered in evidence in the county where they are kept, require no further authentication than the testimony of the clerk of the court in whose custody they are, that they were found among the books and papers of the county, in his office, and on further proof of the handwriting of the clerk, by whom the entries appear to have been made. Williams vs. Jarrott, 6 111. 120. — Abbreviations: The fact that a clerk of the court in certi- fying to a decree identified the cause by using abbreviations to in- dicate the name of one of the parties is no valid objection to its admission as evidence where proof is made of the meaning of such abbreviations, or where, from other words in the certificate, refer- 1110 REFORMATION OF INSTRUMENTS enee is made to the cause mentioned in the decree in the caption, whereby the name of tlie party is apparent. ' Phillips vs. Webster, 85 J 11. 146. — Contradiction of Transcript: Parol is incompetent to con. tradict certified transcript of record in probate court. Wilkinson vs. Service, 249 ill. 146; Xll 111. Notes 515, §323. If the transcript shows that it is the adjudication of a court wdiicb has jurisdiction of the parties and of the subject matter, it will be held conclusive. McMillan vs. Lovejoy, 115 111. 498. Under the act of congress, where a transcript of a judgment of a sister state, duly certified, is offered in evidence, no questions are open to inquiry except those of jurisdiction. McMillan vs." Lovejoy, 115 111. 498. — Canadian Judgment: In an action upon a Canadian judg- ment, where the certificate was under the official seal of the local registrar of the high court, also a certificate apparently under the same seal, by the inspector of the public offices, that the signature to the first certificate is the signature of the local registrar ; also, un- der the same seal, a certificate of the President of that court, that the person certifying as local registrar is such, and the sig- nature genuine, and last, a sweeping certificate by the Lieuten- ant Governor of the Province, under the seal of the Province, to the existence of the Court, the official positions of the per- sons certifying as President and local registrar, the genuineness of their signatures, and that the local registrar has legal custody of the records of the court, and the last certificate signed by the Command Secretary of the Province, such exemplification is suf- ficient. Calhoun vs. Eoss, 60 App. 309; Thompson vs. Mason, 4 App. 452. REFOEMATION OF INSTRUMENTS Mistake : — In General: Mistake must be that of both, and must be proven by clear and satisfactory evidence, and until the mistake is satisfactorily proven, instrument will be presumed to cor- rectly state intentions of parties. Eexroat vs. Vaughn, 181 111. 167; Cleary vs. Babcock, 41 111. 271; Sutherland vs. Sutherland, 69 IlL 481; McDonald vs. Starkey, 42 111. 442. — Mistake of Fact: To justify reformation of written instru- ment upon ground of mere mistake, alleged mistake must be one of fact and not of law, must be mutual and common to both parties to the instrument. Oswald vs. Sproehnle, 16 App. 368; Gray vs. Mer. Ins. Co., 113 App. 537. •'• ■-' And party complaining must be free from negligence. Nati. Fire Ins. Co. vs. Lumber Co., 235 111. 98; Eoberts vs. Hughes, 81 111. 130. — Mistake of Law: Where the terms of a written instrument "re used by parties deliberately and knowingly, there can be REFORMATION OF INSTRUMENTS 1111 no relief in equity by way of reforming the contract, even though the legal effect of terms used is to produce an instrument differ- ent in its legal meaning from one intended. Tilton vs. Fairmout Lodge, 244 111. 617. — Consideration: Equity will not reform a deed which is made without consideration and is imperfectly drawn. Legate vs. Legate, 249 111. 359; Finch vs. Greene, 225 111. 304; Waite vs. Smith, 92 111. 385. — Statute of Limitations: Neither the Statute of Limitations nor laches is applicable to a suit to reform a deed where the com- plainant has been all the time in undisturbed possession. Wyhle vs. Bartholomew, 258 111, 358; Schroeder vs. Smith, 249 III. 574. — Statute of Frauds: Nor has the Statute of Frauds any ap- plication to a suit to correct a deed on the ground of mistake. Wyhle vs. Bartholomevv', 258 111. 358; Correll vs. Greider, 258 111. 479; Hunter vs. Bilyeu, 30 111. 228. — Voluntary Conveyances: Court of equity has no power to reform. Finch vs. Greene, 225 111. 304; Strayer vs. Dickerson, 205 111. 257; Henry vs. Henry, 215 111. 206; McCartney vs. Kidgway, 160 111. 129. Parol Evidence: — Admissible: Parol proof may be received to show mistake in a written instrument. Purviues vs. Harrison, 151 111. 219; Schwass vs. Hershey, 125 111. 653; Hunter vs. Bilyeu, 30 111. 228; Gray vs. Merchants Ins. Co., 113 App. 537; Froyd vs. Schultz, 260 Hi. 268; XII 111. Notes 518, §343. — Statute of Frauds: Whether contract required by Statute of Frauds to be in writing or not. McLennan vs. Johnson, 60 111. 306. — Aelmissions: And the mistake may be shown by the ad- missions of the party in whose favor it was made. Purvines vs. Harrison, 151 111. 219. — Bes Gestae: In suit to reform a deed, testimony as to what was said as to the necessity of a new deed when that executed and recorded was brought back to the scrivener who drew it, is admis- sible, as part of the res gestae, on the question as to the reason and purpose of the second deed. Kyner vs. Boll, 182 111. 171. Weight and Sufficiency: — Beyond ReasonaUe Douht: Relief is forbidden _ whenever the evidence is loose, equivocal or contradictory, or is in its tex- ture open to doul)t or opposing presumptions. Parol evidence of the mistake must be established beyond a reasonable doubt. Courts of equity do not grant the high remedy of reformation upon a probability nor upon a mere preponderance of evidence, but only upon a certainty of the error. "Lines vs. Willey, 253 111. 440. The evidence to justify a reformation in equity of a written contract between parties, on the ground of 3 mistake, must be 1112 REFRESHING MEiMORY clear, convincing and satisfactory. It may not be done upon uncertain, doubtful and unsatisfactory evidence. Stanley vs. Marshall, 206 111. 20; Schwass vs. Herschey, 125 111. 653; Ewing vs. Sandoval Coal Co., 110 111. 290; Foster vs. Miller, 132 App. 464; Gray vs. Merchants Ins. Co., 113 App. 537. — To Show Consideration: The recitals in the instrument are not sufficient to prove the consideration; the proof must show actual payment of consideration and this must be done by extrinsic evidence. Waite vs. Smith, 92 111. 385. — When Grantor Scrivener: The fact that the grantor wrote the deed and deliberately employed the words afterwards alleged by the grantee to have been used by mistake, is strong evidence that he intended to grant the character of estate conveyed by the deed. Seeley vs. Baldwin, 185 111. 211. — Fraud: Proof that parties to a deed, by deception, induced the grantors to sign it, is a fatal variance from a bill alleging a mistake of the scrivener, by which a fee was conveyed instead of intended life estate. Adams vs. Gill, 158 111. 190. Presumptions : Where a party conveys land which he does not own, but does own other land in the same section, the presumption is that he intends to convey the land he did own. Caldwell vs. McGee, 162 App. 171; Dougherty vs. Purdy, 18 111. 206. REFRESHING MEMORY See Books of Account, Memorandum. REFUSAL OR FAILURE TO PRODUCE EVIDENCE See Absent Witness, Destruction, Suppression and Fabri- cation OF Evidence, Best and Secondary, Production of Docu- ments. Presumptions in Civil Actions : The mere withholding or failing to produce evidence which, under the circumstances, would be expected to be produced, and which is available, gives rise to a presumption against a party. Warth vs. Lowenstein,. 219 111. 222; Mantonya vs. Eeilly, 184 111. 183; Hauser vs. Com. Elec. Co., 144 App. 643; Hope vs. West Chi. St. Ey. Co., 82 App. 311; XII 111. Notes 478, § 40. _ When a party fails to produce proof apparently within his power, such failure to produce is liable to raise an inference in the minds' of the jury that the proof is not offered because it would be unfavorable to him, and sometimes raises a strong presumption of law against him; but this presumption or inference does not REFUSAL OR FAILURE TO PRODUCE EVIDENCE 1113 arise unless the party wilfully withholds such evidence. The rule does not apply where the omission is to call a witness who might as well have been called by the other party. Princeville vs. Hitchcock, 101 App. 588. Whatever inferences may be drawn against a party by rea- son of his failure to produce evidence in his possession or con- trol, is attributed to his supposed knowledge that the truth would have operated against him. He is treated in law as a spoliator of evidence. Cartier vs. Troy Lumber Co., 138 111. 533. Wilful withholding of evidence raises presumption that such evidence would be against interest if produced. L. F. Water Co. vs. Lake Forest, 154 App. 184. Wliere a party refuses to produce evidence within his power, presumption is that, if given, it would be unfavorable to him. Century Furnace "Co. vs. Harty Bros., 141 App. 21. But this rule does not apply to such proof as a party has no right to give in evidence without the consent of his adversary or because some fact might be developed on the trial which would render such evidence competent. Cartier vs. Troy Lumber Co., 138 111. 533; Stitzel vs. Miller, 157 App. 390. Failure to produce testimony within power of party to pro- duce, may raise presumption that the proof is not offered because it is unfavorable. Hartford Ins. Co. vs. Sherman, 123 App. 202. One who takes a paper from the tiles without leaving a copy, and who fails to produce same in evidence, thereby furnishes a strong presumption that such paper, if produced, would be pre- judicial to his cause. Hennessy vs. Walsh, 142 App. 237. When one party has evidence upon a point as to which the other party has made out a prima facie case, and who fails to present it, such failure may be taken as an admission that such evidence, if produced, would not aid the party who has it. C. & W. I. Ey. Co. vs. Newell, 113 App. 263; E. St. L. C. Ey. Co. vs. Altgen, 112 App. 471. The law imputes to the possessor of a document knowledge of its contents. Eogan vs. Arnold, 135 App. 281. Upon a failure of a party to produce books as ordered by the court, it is not the right of the court to create a presumption of fact that the books, if produced, would present evidence against him. Walter Cab. Co. vs. Bussell, 250 111. 416. It will not be presumed that books and papers, if produced, would establish fact that adversary alleges they will prove. Cartier vs. Troy Lumber Co., 138 111. 533. No unfavorable inference will arise from mere non-production of ex-employe. Tuthill vs. Belt Ey. Co., 145 App. 50. No presumption can arise where the evidence not produced is the self-serving declaration and writings of adverse party. Law vs. Woodruff, 48 111. 399. 1114 REFUSAL OR FAILURE TO PRODUCE EVIDENCE Where a party refuses to produce books or papers, his oppo- nent iiiay give secondary evidence or have parol proof of their contents, if they are shown to be in possession of opposite party; and if such evidence is imperfect, vague or uncertain as to dates, sums, boundaries, etc., every intendment and presumption shall be aganist the party who might remove all doubt by producing the higher evidence. Eector vs. Rector, 8 111. 105. Counsel may comment on fact that evidence was not pro- duced. Con. Coal Co. vs. Schrieber, 167 IlL 539. When neither party to a civil suit calls an available witness, whatever presumption will be indulged from failufe to call such witness will be against the party to whose interest such wit- ness would most likely incline. Ziimiierinan vs. Zimmerman, 149 App. 231. The presumption of law arising from the non-production or destruction of evidence by one party cannot relieve the other party from burden of proving his ease. It will justify the ad- mission of secondary evidence, and when the evidence is conflict- ing, the presumption will have its full force and operation. Gage vs. Parmelee, 87 111. 329; Clough vs. Kyne, 40 App. 234. Refusal of Witness to Answer : Persistent and unreasonable refusal of wdtness to answer ques- tions propounded to him, based upon objection that same are immaterial, may be considered as showing existence of facts un- favorable to objecting party. Harding vs. Amer. Glucose Co., 182 111. 551. In civil action, if party, upon ground of privilege, refuses to answer relevant questions, presumption is that testimony, if given, or the evidence, if produced, would be unfavorable to him. Stock Exchange vs. Board of Trade, 196 111. 396. If witness refuses to answer, on cross examination, competent questions relating to important or vital matters, in respect to wdiich he testified in chief, his direct testimony should be excluded. Dowie vs. Black, 90 App. 167. Failure of Party to Testify : In civil case, no intendment should be made against a party because he does not testify for himself. Moore vs. Wright, 90 111. 470; Lowe vs. Massey, 62 111. 47; Vil- lage of Princcville vs. Hitchcock, 101 App. 588; XII 111. Notes 478, §40. But where, being a witness, party fails to testify to material fact within his knowledge, inference may be created against him. 111. Mutual Fire Ins. Co. vs. M'alloy, 50 111. 419. Any allusion to or comments by prosecution in criminal case on fact that defendant has not testified as witness in own behalf, especially where allowed by court, over defendant's objection, is such a violation of the letter and spirit of the statute, and such an error as to require a reversal of judgment of conviction, when proof of guilt is not so clear and conclusive that court can affirm- atively sav accused could not liave been harmed from that cause. Austine vs. People, 102 111. 261; Farrell vs. People, 133 111. 244. REFUSAL OR FAILURE TO PRODUCE EVIDENCE 1115 It is the duty of court in all criminal cases, when defendant does not testify in own behalf, to see that no allusion is made to that fact by prosecution. Indirect and covert reference to the neglect of defendant to testify may be as prejudicial to his rights as a direct comment upon such neglect. But it does not necessarily follow that every reference to the law on that subject is prohibited. The true test is, was the ref- erence calculated or intended to direct the attention of the jury to defendant's neglect to avail himself of his legal right to testify. Watt vs. People, 126 111. 9. So a remark made by prosecutor to jury that the "enticing and taking away of prosecuting witness is not denied by defendant," is not such a reference to failure of defendant to testify as vio- lates the statute. Bradshaw vs. People, 153 111. 156. The remark b}^ assistant State's Attorney to jury, after sum- ming up the fact in evidence in prosecution for receiving stolen property, "What does he say? What explanation does he make?" does not call the attention of jury to fact that accused did not testify in his own behalf where it is apparent from remainder of his statement that he referred to the statement of accused in presence of the officers, when charged with the offense. Lipsey vs. People, 227 111. 364. The neglect of defendant to testify in his own behalf in a crim- inal prosecution creates no presumption against him, and any reference or comment upon such neglect to testify, made by the prosecuting attorney is error. Gilmore vs. People, 87 App. 128. It is highly improper and unprofessional in counsel for prose- cution in his argument to jury to refer to the fact that accused was not placed on the stand as a witness, as one of the reasons why he should be convicted, and the fact that such counsel was stopped by the court and the jury directed to disregard that por- tion of the argument may not cure the wrong done, in the minds of the jury. Angelo vs. People, 96 111. 209 ; People vs. Anuis, 261 111. 157. Reference by counsel for state to the statute thus: "Gentle- men, the law prohibits us from commenting upon the fact that the defendant did not take the stand in this case," is ground for reversal. Jackson vs. People, 18 App. 508. Right to Explain: Evidence may be given in behalf of the party who fails to pro- duce evidence, to explain such failure and thereby rebut any inference or presumption that might otherwise arise therefrom. Worth vs. Lowenstein, 219 111. 222; Hope vs. West Clii. St. Ey. Co., 82 App. 311. Secondary Evidence: No advantage can be taken of failure to produce documents called for, except to give secondary evidence. Hoagland vs. G. W. Tel. Co., 30 App. 304. 1116 REGISTERS OF BIRTHS, DEATHS, ETC. REGISTERS OF BIRTHS, DEATHS AND MARRIAGES Admissibility: Registers of births, deaths and marriages, made pursuant to the statute and within its refjuirements, arc admissible in evi- dence to prove the facts recorded. On account of credit due to the officials empowered to record the facts in tiie public interest, such registers are evidence of the facts without the usual test oi truth. Howard vs. 111. T & S. Bank, 189 111. 568. Certified copies of original death certificate of physician re- corded in office of county clerk are admissible to show cause of death. Nat'l Council vs. O'Brien, 112 App. 40; XII 111. Notes 505, §238. But if accompanied by undertaker's certificate and offered as a whole, is inadmissible. Globe Mut. Life Ins. Co. vs. Meyer, 118 App. 155. Certificate must not state conclusions of clerk, but should cer- tify a copy of the entry in the registry, Ewing vs. Cox, 158 App. 25. And if of sister state, there must be proof of law of such state requiring such register to be kept. Sokel vs. People, 212 111. 238; Tucker vs. People, 117 111. 88; Mur- phy vs. People, 213 111. 154. REGISTRATION OF TITLES See Abstracts of Title, Title, Tax Deeds, Color of Title, Good Faith. Weight and Sufficiency: — Title : Prima facie title is not sufficient. Glos vs. Wheeler, 229 111. 272 ; XIV 111. Notes 800, § 5. Nor is it sufficient for applicant to prove only such a title as would enable him to maintain a bill to remove a cloud. Waugh vs. Glos, 246 111. 604. Applicant must show title in himself good as against the world. Tower vs. Glos, 256 111. 121; Glos vs. Holberg, 220 111. 107; Glos vs. Cessna, 207 111. 69. But defendant who claims only part of the premises included in application, cannot complain as to failure to prove title as against the world as to lots to which he sets up no claim, Mundt vs. Glos, 231 111. 158. Life estate cannot be registered unless the fee simple title to the land has first been registered. Cowman vs. Glos, 255 111. 377. Conveyances under which applicant claims must identify prem- ises so that thev may be ascertained by the description. Glos vs. Bragdon, 229 111. 223 ; Glos vs. Ehrhardt, 224 111. 532. It is not enough that there is an abstract of title in the exam- iner's report, showing plat of such addition had been filed for REGISTRATION OF TITLES 1117 record, but which neither copies the plat nor gives any descrip- tion by which any lot or block of the addition can be located. Glos vs. Bragdon, 229 111. 223. If pieces of property are separated, then all should have an identical chain of title in order to include the property in one application. Culver vs. Waters, 2-lS 111. 163. Proof of a deed to applicant, coupled with possession by him for a period of sixteen years, but without proof of payment of taxes for at least seven successive years during that period, does not show title as against the world, and the applicant must, iu such case, show title from the government. Glos vs. Holberg, 229 111. 167. Title in fee in application for initial registration is not shown by proof of deeds and tax receipts unconnected wdth any chain of title from the government, and which fall short of establish- ing a title under the Statute of Limitations. Glos vs. Kingman & Co., 207 111. 26. Proof of possession of land under claim and color of title made in good faith, coupled with payment of taxes upon the property for a period of seven successive years, is sufficient, in absence of other evidence, to authorize registration of the title. Glos vs. MUiow, 211 111. 117. Proof by applicant that he had been in possession of the lots since he acquired title at a foreclosure sale, coupled with proof of master's deeds to the lots, and certified copies of the decree upon whicli they were based, is not sufficient, where there is no proof of payment of taxes nor any evidence of any plat or sub-division showing that the lots had any legal existence. Glos vs. G. B. L. & H. Assn., 229 111. 387. Proof of title to a tract of land, followed by proof of a deed to a certain block of a subdivision of such tract, is not sufficient to show title to such lot, where no plat of the subdivision is of- fered in evidence, and it is not shov^'n that there was any such sub-division, or that there was any part of tract known by the lot number mentioned in tbe deed. Glos vs. Ehrhardt, 224 111. 532. — Invalidity of Tax Deeds: It is not incumbent upon appli- cant to show the invalidity of a tax deed held by a defendant. The burden of establishing its validity rests upon the holder. Wangh vs. Glos, 246 111. 604; Meilahon vs. Eowley, 238 111. 31; Glos vs. Taleott, 213 111. 81; Glos vs. Kingman & Co., 207 111. 26. Failure to prove the invalidity of a tax deed is not fatal to a decree ordering the same set aside upon re-payment of the hold- er's expenditures, where the proof shows that latter 's rights under the tax deed are barred. Glos vs. Mikow, 211 111. 117. — Pai/ment of Taxes: Payment of taxes under color of title may be shown by any competent evidence, including the testimony of a person having knowledge of their payment; and such pay- ment is established by tax receipts and the testimony of the holder of color of title that he paid the taxes each year, even though the 1118 RELATIONSHIP initials of payor do not correspond with those given in several of the tax receipts introduced in evidence. Tobias vs. Kaspzyk, 247 111. 80, Proof of the payment of all state, county, town, school, road, park, drainage and coi-poration taxes assessed against the prop- erty raises the presumption, in absence of evidence to contrary, that all taxes assessed against the property, during the period covered by the proof, were paid. Glos vs. Mikow, 211 111. 117. — Occupancy: Allegation that premises were occupied by applicant must be proven, and proof must identify the premises occupied bv the applicant as the premises described in application. Miiialik vs. Glos, 247 111. 597. And applicant must prove allegation that land is unoccupied. Allegation is not a negative one which requires no proof, nor is the aoplication itself evidence of the fact. ' Jaeksou vs. Glos, 243 111. 280; Brooke vs. Glos, 243 III. 392. — Adverse Title: If an applicant establishes title in himself, he is not required to affirmatively show the invalidity of defend- ant's claim of title. Glos vs. Hoban, 212 111. 223. If he establish his right to have his title registered, the estab- lishment of an adverse title rests upon party relying thereon, and the applicant is not required, in the first instance, to show its invalidity. Glos vs. Holberg, 220 111. 167. — Corporate Existence of Applicant: Absence of a formal denial of corporate existence of applicant is an admission thereof. Gage vs. Cons. Elec. Co., 194 111. 30. RELATIONSHIP See Descent and Distribution, Legitimacy, Pedigree, Hus- band AND Wife, Parent and Child. RELEASE See Waiver, Parol, Abandonment. RELEASE OF CONTRACT: Parol Evidence: Parol evidence is admissible to show contracts under seal have been released, abrogated, cancelled and surrendered by an exe- cuted parol agreement, and the question whether a sealed con- tract is so abrogated is a question for the jury. Alsehuler vs. SchifP, 164 111. 298; Goldsborough vs. Gable, 140 111. 269; Eobinson vs. Hardy, 22 App. .512; Bloomquist vs. Johnson, 107 App. 154; Milligen vs. Hinbaiigh, 70 App. 537; Danforth vs. Mclntyre, 11 App. 417. And such release may be deduced from circumstances or a course of conduct in evidence clearly evincing an abandonment. Lai-cher vs. Ijoeffler, 190 111. 150; Harrison vs. Polar Star Lodge^ 116 111. 279; Holbrook vs. Elec App. Co., 90 App. 86. RELEASE 1119 A contract under seal may be released, abrogated, cancelled and surrendered by an executed parol agreement. Alseluiler vs. Schiff, lti4 111. 298; Goldsborough vs. Gable, 140 111. 269; Pelouze vs. Gibbous, 157 App. 186. An executory sealed contract cannot be altered, modified or changed by a parol agreement, but it may be surrendered and can- celled by an executed parol agreement. Breitman vs. Fischer, 216 111. 142; Starin vs. Kraft, 174 111. 120; White vs. Walker, 31 111. 422; Worrell vs. Forsythe, 141 111. 22; Baker vs. Pratt, 15 111. 568; XII 111. Notes 518, §348. Thus where a lease has been fully executed as modified by a parol agreement, evidence of the parol agreement is admissible. Snow vs. Griesheimer, 220 111. 106; Harmes vs. McCormick, 30 App. 125. Parol evidence showing a waiver of some provision of an execu- tory contract under seal is admissible and such waiver is not a modification or change in the terms of the original contract. Becker vs. Becker, 250 111. 117; Zemple vs. Hughes, 235 111. 424. The terms of a contract under seal cannot be varied except by an instrument of the same dignity, and this notwithstanding such contract would have been valid without seal, but the mere waiver of one of the terms of a condition of such contract, which waiver operates merely by way of release or discharge, but leaves the contract otherwise unchanged, may be shown by parol Morehouse vs. Terrell, 111 App. 460. SEAL: Not necessary to release. I. C. E. E. Co. vs. Eeed, 37 111. 4S5; Bailey vs. Cowles, 86 111. 333; Eyan vs. Duulap, 17 111. 40; Benjamin vs. MeConuell, 9 111. 536. BURDEN OF PROOF GENERALLY: The burden of proving an accord and satisfaction or a release is upon the party alleging it. Wallner vs. Chi. Trac. Co., 150 App. 242. ADMISSIBILITY OF RELEASE: May be given in evidence under general issue in action of case. Balswicz vs. C. B. & Q. E. E. Co., 240 111. 238 ; Hartley vs. C. & A. R. E. Co., 214 111. 78; Hartley vs. C. & A. E. E. Co., 197 111. 440; Papke vs. Hammond, 192 111. 631 ; Kapschki vs. Koch, 180 111. 44 ; City of Chicago vs. Babcock, 143 111. 358. And upon its offer the court may direct a verdict. Hartley vs. C. & A. E. E. Co., 214 111. 78; O'Donnell vs. Brinks Express Co., 95 App. 411. If plaintiff denies the execution of the release which defend- ant offers, it is proper for court to refuse to direct. Sargent Co. vs. Baublis, 215 111. 428. (In the latter case the court on its own motion submitted spe- cial interrogatories concerning the release.) Must be specially pleaded in action of trespass. Kenyon vs. Sutherland, 8 111. 99. In action against a railroad company for damages to land caused by overflow alleged to be due to defendant's wrongful act in obstructing a stream and changing its course, a release exe- cuted by plaintiff to another railroad whose tracks parallels defend- ant 's, for all damages sustained by plaintiff on account of his land 1120 RELEASE being overflowed up to a date previously to the time the dam- ages sued for began to occur, is not admissible. Ramev vs. B. & O. S. W. R. E. Co., 235 ill. 502, EFFECT AS EVIDENCE: In General: A release of all damages, signed by plaintiff and under his seal, is a bar to the action unless it can be impeached for fraud in the execution. Hartley vs. C. & A. R. R. Co., 214 111. 78; C. R. I. & P. R. R. Co. vs. Lewis, 109 111. 120; Henimick vs. B. and O. S. W. E. E. Co., 263 111. 241. If a party is mentally incompetent to know what he is doing, or is deceived or tricked into signing a release, when he thought he was signing something else, such fact may be shown in his action at law for damages and release is not a bar to the action, but if lie is mentally capable of knowing and understanding what he is doing, and does know and understand that he is making a settlement of his claim, the release must be set aside in equity before an action at law for damages can be maintined. Turner vs. Consumers Coal Co., 254 111. 187; Clark vs. Amer. Bridge Co., 180 App. 134. Joint Liability: — Contract: If instrument in terms provides that the obligor seeking to obtain a release shall remain subject to the right of contribution in favor of his co-o])ligors in case they are compelled to pay more than their share of the claim, then the provisions in the release that it shall not operate to discharge such co-obligors may be given effect according to its terms. Parmelee vs. Lawrence, 41 111. 405; Mooie vs. Stanwood, 9S 111. 605; Thomason vs. Clark, 31 App. -104; Mueller vs. Uobscluietz, 89 111. 176; Dupee vs. Blake, 148 111. 453. A plain, unconditional and unambiguous release of one joint debtor operates in law to discharge the co-obligor, and extrinsic evidence is not admissible to establish a contrary intention not appearing on the face of the instrument or from the circumstances connected with its execution. The intention of the parties to a written agreement is to be determined from the contract itself, and not from their previous understandings or agreements. Clark vs. Mallory, 185 111. 227. — In Tort: A release of one of several joint tort feasors is a release as to all, and an accord and satisfaction with one of them is a bar to an action against the others. Walhier vs. Chi. Trae. Co., 245 111. 148; City of Chicago vs. Babcock, 143 111. 358; W. Chi. St. Ry. Co. vs. Piper, 165 111. 325; XIV 111. Notes 333, § 21. "Where a suit is begun against several tort feasors, a dismissal of the suit as against one will not bar the action against the others, in absence of proof of a release or accord and satisfaetio7i. W. Chi. St. Ry. Co. vs. Piper, 165 111. 325; City of Chicago vs. Smith, 95 App. 335. There is no such privity between joint tort feasors because both are sued in the same suit, or both liable for the same injury, as to conclude the defendant, wiio is not a party to the contract, release or establishment, or the plaintiff, by the express terms of the RELEASE 1121 written contract, and plaintiff or defendant may contradict it by parol evidence. Gore vs. Henrotin, 165 App. 222. A covenant not to sue a sole tort feasor is considered in law a release and a bar to an action against him. But the rule is otherwise where there are two or more tort feasors, and the cove- nant is with one of them not to sue him. In such case, the cove- nant does not operate as a release of either the covenantee or the other tort feasors, and the latter cannot give in evidence a covenant as bar to an action against him. C. & A. E. E. Co. vs. Averill, 224 111. 516; Yeates vs. I. C. E. E. Co., 145 App. 11. IMPEACHMENT FOR FRAUD: Right to Impeach: Fraud in the execution of an instrument is practiced when the instrument is misread to the party signing it, or where there is a surreptious substitution of one paper for another, or where, by some other trick or device a party is made to sign an instrument which he did not intend to execute. Jackson vs. Security lus. Co., 233 111. 161 ; Papke vs. Hammond, 192 111. 631. In an action at law, a written release of damages under a seal cannot be impeached for fraud not inhering in the execution thereof, but which only goes to the extent of the consideration. Papke vs. Hammond, 192 111. 631. But this rule does not include a release not under seal. F. & M. L. Ins. Co. vs. Caine, 224 111. 599; Titsworth vs. Hyde, 54 111. 386; Jackson vs. Security Ins. Co., 233 111. 161. Question for Jury: Fraud is a question of fact for the jury. Turner vs. Consumers Coal Co., 254 111. 187; Chi. St. Ey. Co. vs. Uhter, 212 111. 174; I. D. & N. W. Ey. Co. vs. Fowler, 201 111. 152; Pioneer vs. Eomanowicz, 186 111. 9; Chi. City Ey. Co. vs. MeClain, 211 111. 589; Pawnee Coal Co. vs. Eoyce, 184 111. 402. Admissibility of Evidence to Show Fraud: That the signature w^as obtained by the false representations that it merely covered a claim for a month's wages may be shown. I. C. E. E. Co. vs. Welch, 52 111. 183. Or that the party signing it was led to believe that it was a paper to enable the paymaster to tell where the money went. And being lold he should sign his name for the money, did so. Nat'l Syrup Co. vs. Carleson, 47 App. 178; Affd., 155 111. 210. Or that an illiterate woman, unable to read or write, was in- duced by her physician, during her illness, in absence of any one to whom she could look for advice, to sign a release on the representation that it was a receipt to show what money expended for her benefit had been expended for. Eagle Packet Co. vs. Defries, 94 111. 598. Or that one suffering a great physical pain and laboring under the effect of opiates, was induced by fraudulent practices to sign a release under the belief that he was only signing a receipt for money. C. E. I. & P. Ey. Co. vs. Lewis, 109 111. 120. Thai the execution of a paper was fraudulently obtained from Ev.— 71 1122 RELEVANCY one suiifering severe pain, in ignorance of its contents and under the representations that it was necessary to have her name. Chi. City By. Co. vs. McClain, 211 111. 589. Or that a release was signed without any intention to execute a release, but on account of the fraudulent representations that it was merely a receipt for money paid to a physician. Chi. City Ey. Co. vs. Uhter, 212 111. 174. Evidence that after the collision in which plaintiff was hurt, defendant's claim agent circulated papers containing formal re- lease of damages for the signatures and addresses of injured pas- sengers, upon the representation that he would then answer tele- grams from their friend, and that he afterwards distributed sums of one and two dollars among the parties so signing, including plaintiff, for the alleged purpose of defraying their expenses caused by the delay, nothing being said about releasing damages, tends to show that plaintiff's signature was obtained to the release by fraud. C. & A. E. E. Co. vs. Jennings, 217 111. 494. Plaintiff in action for personal injuries claiming that he was induced to sign a release by misrepresentations, and had no knowl- edge of its contents, may be asked whether, at the time he signed his name, he knew in any way that he was settling with the com- pany for damages on account of his injury, but cannot state his understanding as to the purpose or purport of the paper. Nat'l Syi-up Co. vs. Carleson, 155 111. 210. A release of damages may be regarded as not fairly obtained, and hence as inoperative, where the party executing the release is unable to read it, and it is not read to him, but is represented to him, by party claiming the benefit, as being for another purpose. Pioneer Cooperage Co. vs. Eomanowicz, 18(5 111. 9. Burden of Proof: The burden of proving fraud is upon party alleging it. Miller vs. St. L. & P. Co., 176 App. 439; St. L. & B. Ey. Co. vs. Erlinger, 112 App. 506; C. & A. E. E. Co. vs. Jennings, 114 App. 622; Affd., 217 111. 494; XIV 111. Notes 334, § 24. RELEVANCY See Offer of Evidence, Order op Proof, Cross Examination, Rebuttal, Objections, Positive and Negative. Defined: Relevant evidence is evidence w'hich, if admitted, has a natural tendency to prove the fact in controversy. People vs. Gray, 251 111. 431; XII 111. 'Notes 481, §52. Tendency to Prove : Evidence tending to prove the material facts or either of them, is admissible although it may not establish the whole case or be conclusive. B. & O. S. W. E. E. Co. vs. People, 156 111. 189; Cent. Ey. Co. vs. All- inon, 147 111. 471; Avery vs. Moore, 133 111. 74; Miller vs. Chrisnian, 25 111. 269. To determine the relevancy of evidence, the question is not RELEVANCY 1123 whether it is sufficient of itself to make out the case or defense, but whether it tends to prove it. Comstock vs. Gage, 91 111. 328; Hough vs. Cook, 69 111. 581; Hunter vs. Harris, 29 App. 200. But it is not error for the court to reject evidence which is not pertinent to the issue, considered by itself, and which is not fol- lowed by any evidence which would make it j)ertinent. Doran vs. Mullen, 78 111. 342. Remoteness : How long before or after a transaction in issue evidence of col- lateral matters shall extend, must be determined by the trial court in the exercise of its sound legal discretion, in view of the cir- cumstances of each particular case. Gardiner vs. Meeker, 169 111. 40 ; Larmine vs. Carley, 114 111. 196 ; Tnule vs. Meyer, 82 111. 535; Eureka Coal Co. vs. Brandwood, 72 111. 625. And must not be conjectural. Pioneer Con. Co. vs. Sanberg, 98 App. 36. One accused of crime may prove any fact or circumstances tending to show that the crime was committed by another than himself. It is difficult to define the precise limits which must control its admission. It may be so remote in point of time as to be immaterial. To a great extent it must be left to the trial judge to determine upon the facts before him how far evidence of this description may have any tendency to throw light on the fact to be found. People vs. Pezutte, 255 111. 583. Explanatory Testimony: Where certain evidence is sought to be introduced which is material to the issue, other evidence, incidental thereto, and which is necessary in order to properly explain such material evidence, is likewise competent. Hajward vs. Scott, 114 App. 531. As to Competency: Competency is one thing and what evidence may prove is an entirely different thing. Willoughby vs. Dewey, 54 111. 266. The evidence must relate to some issue presented by the plead- ings and tend to establish some fact or facts legally competent for the consideration of the jury. City of Joliet vs. Conway, 119 111. 489; Eobinson vs. Craft, 154 App. 213. Limiting Effect: ,, If evidence is properly admissible under any issue of the case or for any purpose, it should not be excluded. The effect, how- ever, should be limited to its proper office in the case, by instruc- tion offered by party desiring to limit the purpose for which it is admitted. Harmon vs. Peoria Ey. Co., 160 App. 458; People vs. Hagenow, 236 111. 514; Euggles vs. Gatton, 50 111. 412. Connection with Other Testimony: — In General: Facts and circumstances which, when stand- ing alone, might have little probative force, are admissible if, when taken together with all the other facts and circumstances appear- 1124 KELEVANCY ing in evidence, they tend to fairly prove the averments of the declaration. Heffernan vs. Bail, 109 111. 231. — Proof Aliunde: Testimony not manifestly relevant should not be excluded when its relevancy may be made to appear by proof aliunde. Cent. Ry. Co. vs. Allmon, 147 111. 471. — Promise to Connect: Court may admit apparently irrele- vant evidence upon assurance that it ^11 be followed by other testimony in connection with which its relevancy will be appar- ent. City of Alton vs. Hartford Ins. Co., 72 111. 328 ; Dunning vs. Mathews, 16 111. 308. When the materiality and relevancy of a question asked is apparent, it is not necessary, upon objection to it, to state what is expected to prove by it. Hair Co. vs. Manley, 102 App. 570. Order of Proof: It is the right of a party, when he offers evidence, in the proper order, which proves or tends to prove any necessary fact in the case, to have it go to the jury, for the reasonable presumption is that it will be followed by such other proof as is necessary for its proper connection ; and if it is not, it then becomes irrele- vant, and if desired, may be withdrawn from the jury. Rogers vs Brent, 10 111. 573. When Relevancy Determinable: When evidence is offered which, at the time, does not appear to have any relation to the case, and the offer to introduce is unac- companied by a statement that its relevancy will appear in the progress of the trial, it may properly be rejected, and its exclu- sion under such circumstances will not become erroneous because it may afterwards become relevant in the further development of the case; in such event, the rejected evidence should be offered again, when, if excluded, an exception would lie. Lonergan vs. Stewart, 55 111. 44. Motion to Strike Out : When evidence has been received under a promise that a link necessary to its competency Avill be established by other evidence and a motion to strike out such evidence is made and overruled because of such promise, such a motion must be renewed if such pronuse is not kept, in order to urge on appeal the incompetency of the evidence so received. Chi. City Ry. Co. vs. Hyndshaw, 116 App. 367; XIV 111. Notes 853, §109. Admission of Irrelevant Testimony: — Right of Adverse Party: Where the objecting party has in- troduced like irrelevant testimony, he cannot complain if the court permits the adverse party to produce evidence of a like irrele- vant nature to rebut the evidence he has himself offered. 111. Steel Co. vs. Wiersbicky, 206 111. 201 ; C. C. C. & St. L. Ry. Co. vs. Highsmith, 59 App. 651. But the right to object is not necessarily waived by reason of REPAIRS AFTER ACCIDENT 1125 failure of adverse party to object, when objecting party himsell; offered the irrelevant testimony. Fitzsinimons vs. Biaun, 199 111. 390. — Bight to Rehut Incompetent Testimony : The proper de- fense against incompetent evidence is an objection, and its in- troduction without objection does not make evidence competent to contradict it. Parties cannot by mere silence or consent cre- ate a right to try an immaterial issue when they might have had the adverse evidence kept out or stricken out. People vs. Newman, 261 111. 11; Maxwell vs. Durkin, 185 111. 546. But after the admission of the objectionable evidence, party may offer proof upon the matter and is not thereby estopped to complain, where he has first objected to the incompetent testi- mony. A party has a right to meet his adversary's case as made under the rulings of the trial judge, and after making objection and reserving proper exceptions, may combat the testimony of adverse party, whether correctly admitted or not, without losing his rights on appeal. Chi. City Ey. Co. vs. Uhter, 212 111. 174; Winn vs. Cliristian Coal Co., 156 App. 179. (See Objections.) — Cross Examination as to Irrelevant Matters: If counsel chooses to cross examine a witness as to facts which were not ad- missible in evidence, the other party has a right to examine him as to the evidence thus given. Doggett vs. Green, 163 App. 369. — Hearsay: Hearsay evidence which has been received with- out objection, will be treated as competent. Mason vs. Truitt, 257 111. 18; Hoover vs. Empire Coal Co., 149 App. 258; Pitman vs. Gatey, 10 111. 186. REPAIRS AFTER ACCIDENT Admissibility: I The question of negligence must be determined from what oc^ curred before or at the time of the injury, and evidence of repairs made after the injury is not admissible as an implied admission of negligence on the part of defendant. Kath vs. E. St. L. Sub. Ey. Co., 232 111. 126; Howe vs. Medaris, 183 111. 288; City of Bloomington vs. Legg, 151 111. 9; Weber Wagon Co. vs. Kehl, 139 111. 644; Marder vs. Leary, 137 111. 319; Hodges vs. Pereivil, 132 111. 53; Village of Warren vs. Wright, 103 111. 298; Village of Mt. Morris vs. Kanode, 98 App. 373 ; XII 111. Notes 484, §70. But is competent for the purpose of disproving correctness of alleged representations, photographs, measurements, location. Sample vs. C. B. & Q. E. Co., 233 111. 564; Kath vs. E. St. Louis Kv. Co., 232 111. 126; City of Taylorville vs. StafCord, 196 111. 288. Where injury is alleged to have been caused by defective con- dition of defendant's tracks, and on direct examination witness testifies ties were not bad enough to take out at time of accident, it is proper to permit plaintiff, on cross examination, to show that tbey were rotten a week afterwards and that witness did then take them out. Hayes vs. Wabash E. E. Co., 180 App. 511. 1126 REPLEVIN REPLEVIN PLEADING: A 0)1 Cepit: Plea of non cepit only puts in issue the taking of the prop- erty. This plea admits the right of property to be in plaintiff, and if defendant succeed on the plea, he is not therefore entitled to a return of the property. If he insists on a return, he must contest plaintitf's right to the property. This he may do by formally traversing plaintiff's allegation of right, or by pleading specially that the right of property is in some one other than plaintiif. Defendant is bound to take this course before he can contest plaintiff's right to the property. The object of these alle- gations by defendant is to procure a return of the property and to impose on plaintiff the necessity of proving title to sustain his action. Natl. Cash Eegister Co. vs. Wait, 158 App. 168. Property in Defendant: On an issue upon a general plea of property in defendant, he may show any legal title to the property, no matter how derived. O 'Conner vs. Union Transfer Co., 31 111. 230. An averment in plea of property in defendant, being but in- ducement to a traverse of the averment in the declaration of property in plaintiff, and such a plea having put plaintiff to proof of property in himself, any evidence which tends to show plaintiff is not the owner, is legitimate, and it is error to reject it on the trial of the issue. Constantine vs. Foster, 57 111. 36; Baldwin vs. Smith, 143 App. 56. Burden of Proof: Under such pleas, is upon defendant. Amos vs. Sinnot, 5 111. 440; Contra, Jones vs. Glathart, 100 App. 630; Second Natl. Bank vs. Timet, 124 App. 501. Where defendant pleads property in himself or in a third person, and traverses plaintiff's right, averment of property in defendant or third person is only an inducement to the traverse, and plaintiff must take issue on the traverse and not the induce- ment. Chandler vs. Lincoln, 52 111. 74. A plea setting up property in third person, and avowing for rent from him, admits the taking of the goods, and the only bur- den resting upon plaintiff is to prove the goods are his and not the property of such third person. Kraiise vs. Curtis, 73 111. 450. WEIGHT AND SUFFICIENCY: Plaintiff's Title: Plaintiff must recover upon the strength of his own title, and if such title is denied, he has the burden of showing a general or special property in the goods. Perkins Vs. Knisely, 204 111. 275; Pease vs. Ditto, 189 111. 456; Eeyn- olds vs. McCormaek, 62 111. 412; Jackson vs. Craw, 149 App. 559; Weiner vs. Temple, 145 App. 498. Demand: Where a party obtains possession of property lawfully, an ac- REPLEVIN 1127 tion of replevin cannot be maintained to recover it until a de- mand has been made and possession refused. O. & M. Ey. Co. vs. Is'oe, 77 111. 513; Rosenbaum vs. King, 114 App. 648; Wabash Ey. Co. vs. House, 101 App. 397; Ehle vs. Dietz, 3.2 App. 547 ; XIV 111. Notes 355, § 40. No demand is necessary to be shown where the possession is wrongfully acquired, or an actual conversion is shown. Burdick vs. Peer, 170 App. 604; Hayes vs. Mass. Life Ins. Co., 125 111. 61^6; Sanitary Can Co. vs. Hines, 149 App. 244; MeConnell vs. Hanipe, 147 App. 50; Sehnert vs. Keonig, 99 App. 513; Howards Com. Co. vs. Natl. Live Stock Bank, 93 App. 473; Eichey vs. Ford, 84 App. 121. Proof of circumstances which show that a demand would have been unavailing- (as a refusal by defendant to listen to one, or a statement that he will not deliver), is stifficient to excuse a demand. Sinamaker vs. Eose, 62 App. 118; Keller vs. Eobinson, 153 111. 458. When defendant pleads general issue, property in himself and in third persons whose bailiff he is, avows the taking and demands a return, it is not necessary for plaintiff to prove a demand for the goods previous to the issuing of the writ of replevin. Kingman & Co. vs. Ecineimer, 58 App. 173. After the commencement of suit, a controversy arose as to a demand, and defendant said, ' ' I waive all demand ; you can go ahead with your replevin." Held, that defendant had waived the necessity of a demand and was estopped from claiming that no demand was made. Hamilton vs. Seeger, 75 App. 599. Demand and refusal after writ issued are not admissible as tending to prove demand unavailing. Keller vs. Eobinson, 153 111. 458. Insolence in making demand inadmissible. Alexander vs. Boyle, GS App. 139. Possession: It is essential to the right of recovery that plaintiff prove his general or special ownership of the property or his right to its possession. Pease vs. Ditto, 185 111. 317; Amick vs. Young, 69 111, 542. Where an action is brought for the recovery of property wrong- fully taken from party entitled to possession, it is only necessary for him to prove his right of possession of the property to entitle him to a recovery. Blakely Co. vs. Pease, 95 App. 341. Person entitled to possession, means one having qualified or special interest, legal or equitable. Pease vs. Ditto, 189 111. 456 ; Fullerton vs. Morse, 162 111. 43. Where chattels are taken from one without any legal authority, his prior possession is sufficient to warrant recovery against the tort feasor. Cummins vs. Holmes, 109 111. 15; Blakely Co. vs. Pease, 95 App. 341. Mortgaged Property: — Insecurity: In replevin to recover jDroperty taken under insecurity clause in mortgage, mortgagee may show that probable cause existed for believing his debt was unsafe and insecure. Hogan vs. Aiken, 18l"lll. 448. 1128 REPLEVIN — Verbal Consent to Sale: The purchaser of mortgaged chat- tels, on bringing replevin against assignee of the mortgage, who took possession of the property, claiming a breach by reason of the sale, may show that the original mortgagee, before he as- signed the mortgage, gave his verbal consent to the sale. Anderson vs. Brewing Co., 173 111. 213. — Admissions of Assignor: The admissions of the assignor of a chattel mortgage, against his own interest, made before he assigned the instrument, are admissible against his assignee, Anderson vs. Brewing Co., 173 111. 213. — Burden of Proof: If the replication to a plea charging that the plaintiff sold the property without defendant's consent, in violation of the mortgage, consists merely in a denial of all the allegations of the plea, the burden of proof is upon defendant. Mathews vs. Granger, 196 111. 164. — Admissibility of Mortgage: Under plea of property in de- fendant, a chattel mortgage, the conditions of which have been broken, is admissible in evidence. Such mortgage is sufficient to enable mortgagee to recover the property in action of replevin. Cleaves vs. Herbert, 61 111. 126; Knitting Mills vs. Obstfeld, 154 App. 637. Burden is on plaintiff to show that property is covered by the mortgage. Myers vs. Van Norman, 87 App. 500. DEFENSES: Admissibility of Evidence: — Bill of Sale : Where plaintiff introduces in evidence a bill of sale purporting to be made to him by defendant, an affidavit denying its execution is not required before defendant may in- troduce evidence that he did not execute same. Plea of non est factum is unknown in replevin. Cronk vs. People, 131 111. 56. — Admissions: Statements of vendee as against attaching cred- itors of vendor competent. Lewis vs. Swift, 54 111. 436. Acts and declarations of third person in possession of property are competent. Amick vs. Young, 69 111. 542; XIV 111. Notes, 361, § 113. The statements and declarations of a vendor of chattels, made in absence of vendee, before the sale, are admissible in evidence in suit by a person claiming the chattels, to prove title in plaintiff before sale. Such statements and declarations are binding upon the vendee as a privy by purchase from vendor. Gill vs. Crosby, 63 111. 190. — Fraud of Vendor: In replevin to recover a stock of goods claimed by plaintiff to have been acquired from defendant by him under a contract to trade it for plaintiff's farm, defendant may show that plaintiff misrepresented to him material matters. Eobinson vs. Yetter, 238 111. 320. — Official Character: Where defendant sets up defense that he was a constable, and took the property under an execution in his hands against the owTier of the property, and the direct ques- tion is raised as to whether he was a constable or not, he must REPLEVIN 1129 show that he was a constable de jure; evidence that he was an acting constable is not sufficient. Outhouse vs. Allen, 72 III. 5i:9. And oral testimony is incompetent for purpose of showing defendant de jure officer. Larsen vs. Ditto, 90 App. 384; Vaughn vs. Owens, 21 App. 249. Defendant justifying as constable must prove that he was con- stable. Bryan vs. Eeeves, 20 App. 673. — Validity of Process: The general rule is that an officer may justify his seizure of property under an execution if it is regu- lar on its face, and appears to have been issued by a court of competent jurisdiction, without making proof of the judgment on which it was issued. Outhouse vs. Allen, 72 111. 529; Bunn vs. Gardner, 18 App. 94. The burden of proof is upon defendant, who pleads that he took the property as an officer under an execution, to support the execution by proof of a valid judgment existing at the time the execution was issued. Shue vs. Ingle, 87 App. 522. — Claimed hy Third Person: As a general rule, a sheriff or constable has only to produce a fi, fa., regular on its face, to justify his levy upon and seizure of property ; but Avhen he levies upon property claimed by some one else than the defendant in execution, and he denies the ownership, and the officer claims the sale by the debtor was fraudulent as to creditors, he must go further and show the execution was issued on a judgment. Johnson vs. Hollaway, 82 111. 334. ACTIONS ON BONDS: In General: Where affidavit and writ in replevin action, the appearance of defendant, writ of retorno hahenelo with its endorsements, and a docket record of replevin judgment are introduced, it is sufficient prima facie evidence of breach of condition to prosecute suit with effect. Hunter vs. Comm. Sec. Co., 181 App. 260. The material facts to be proved are the termination of the re- plevin suit, judgment in defendant's favor, and the order for the writ retorno hahendo. It is wholly unimportant what led to that result or in what phraseology it was declared. Where suit is dis- missed, plaintiff can only ^liow "title in mitigation of damages. He is estopped from setting up want of jurisdiction of court in re- plevin suit. Bierman vs. Columbia Mfg. Co., 179 App. 69. Conclusiveness of Adjudication: The surety contracts with reference to the action of his prin- cipal in prosecuting the replevin suit, and he is therefore con- cluded by the judgment orders made in that suit ; and the record showing a change of venue and judgment of dismissal, with order for the return of the property, is conclusive evidence against him, of the breach of the conditions of his bond. Schott vs. Youree, 142 111. 233. In action on bond, defendant, who was plaintiff in replevin suit, 1130 REPLEVIN cannot urge title in himself if such replevin suit has been deter- mined against him on the merits. Birma vs. ^^hiir, 152 App. 505. Measure of Damages : — 3Ierits Not Determined: Title to property and mitigation of damages may be pleaded on a replevin bond where there is a non-suit in replevin. Gilbert vs. Sprague, 196 111. 444; Hanelictt vs. Gardner, 138 111. 571; Kalprath vs. Greeiibiirg, 147 App. 380; Palmer vs. Emery, 91 App. 207; Washburn vs. Birke, 84 App. 587; XIV 111. Notes 366, § 170. Or where same is dismissed for want of jurisdiction. O 'Donnell vs. Colby. 153 111. 324. It is proper, in assessing damages, to allow defendant to prove, in mitigation of damages, that the interest of plaintiff in the chat- tels was that of a lien holder, merely; but it is not proper, in absence of a ph-a, to permit defendant to show such a lien was subordinate to the lien of his principal, the plaintiff in the replevin suit. Magerstadt vs. Harder, 199 111. 271. When suit is dismissed or plaintiff takes or suffers a non-suit he may show such facts as would establish his right to maintain his suit in replevin. But if it appear in a suit on such bond that the replevin suit could not have been successfully prosecuted, then the prima facie right to recover upon bond is established. Weber vs. Hertz, 87 App. 601. Plaintiff can only plead property in himself. He may plead and prove any qualified title, but it must be in himself. Holler vs. Coleson, 23 App. 324. — Burden of Proof: Burden to shov/ title to goods is on plain- tiff. Fabian vs. Traeger, 117 App. 176; Affd., 215 111.- 220. Where defense is that merits were not tried burden is on de- fendant to prove ownership. Stevison vs. Earnest, 80 111. 513; Gullett vs. Otey, 19 App. 182. Where failure of defendant to return goods is traversed burden is on plaintiff to prove return of goods. Eichardson vs. Gilbert, 135 App. 363. Where the plea traverses the allegation that a return of the goods was awarded, the burden is upon plaintiff, if he seeks to re- cover the value of the goods, to show a judgment awarding it, and failing to do so, he will be entitled to no more than nominal damages. Fellheimer vs. Hainline, 65 App. 384. — Files Former Suit: The affidavit, declaration, writ and en- dorsements thereon, and other papers and files in the replevin suit, when identified, and the judgment, are admissible in evidence on behalf of plaintiff. Stevison vs. Earnest, SOi 111. 513. — Alternative Judgment: AA^here plaintiff has not returned the goods or paid the alternative judgment, the amount of such alternative judgment is the measure of damages. Martin vs. Hertz, 224 111. 84. — Return of Part of Goods: When a return of the property is awarded, plaintiff may return part of the goods, provided they REPORTS 1131 are separable from and in no way dependent upon the others for use or value, and if they are in the same coudition as when taken, the defendant will be bound to receive them. Such a return will be a defense pro tanfo to a suit on the bond. Edwin vs. Cox, 61 App. 5G7. If plaintiff after judgment of return, fails to return all the property, and that which is returned is injured, the measure of the damages in suit on bond is the value of the goods not returned, with legal interest from the time of the replevin, and deterio- ration in value of those returned, resulting from the injury, with legal interest from tlie date of their return. Franks vs. Matson, 211 111. 338. Where the merits of the case have not been tried, and the action is brought to recover for failure to return a number of reapers and mowers, the measure of damages is the fair cash market value of the machines at the time and place of the replevy, and in the condition they then and there were, and this value is to be ascer- tained without regard to the guaranties of any manufacturing company, or agreements of other persons to set up such machines in working order, to supply broken parts or other qualifications whatever. Piano Mfg. Co. vs. Downey, 100 App. 36. — Nominal Damages: "Where plaintiff dismisses his suit or suffers non-suit without a trial on the merits, he may show, in action on the bond, in mitigation of damages, that the property involved was in fact his property, and upon such showing being made, there can be recovery only for nominal damages. Lyon & Healy vs. Pease, 86 App. 251. — I"fl7(?f; . Testimony compounded of fact and opinion, in valuing the use of property by those acquainted with the kind and its uses, is proper for consideration in estimating damages in replevin. Butler vs. Mehrling, 15 111. 488 ; Keith vs. Edwards, 42 App. 250. — Affidavit Competent: An affidavit made by a plaintiff is competent evidence against him in a suit on the bond, and he is estopped to deny that the property replevied was of less value than stated in his affidavit. Love vs. People, 94 App. 237. The value stated in a replevin affidavit, writ and bond, is prima, facie evidence of value as against the sureties in action on bond, and is conclusive evidence of value if there is no evidence in the record to contradict it. Martin vs. Hertz, 224 111. 84; Eicbardson vs. Gilbert, 135 App. 363. REPLICATION See Chancery, Answers. REPORTS See Books, Foreign LzVw% Best and Secondary. 1132 REPRESENTATIVE CAPACITY REPRESENTATIVE CAPACITY Action by Administrator: — General Issue: The question of the appointment of plaintiff as administrator is not put in issue by plea of general issue, so as to require proof of such appointment. C. & A. E. E. Co. vs. Smith, 180 111. 453; Fischer vs. Stiefel, 179 111. 59; Hughes vs. Eector, 161 111. 409; Tate vs. C. C. C. & St. L. E. E. Co., 147 App. 155; McKinley vs. Braden, 2 111. 64; XII 111. Notes 633, §494. — Collateral Attack: Grant of administration is conclusive and not subject to attack in a collateral proceeding. Balsewicz vs. C. B. & Q. E. E. Co., 240 111. 238. — Parol: Parol evidence is not admissible to prove who was the administrator of an estate ; such fact being a matter of record, the best evidence thereof is the record and it should be produced or accounted for according to the rules of evidence. Williams vs. Jar rot, 6 111. 120, REPUTATION See Character, Libel and Slander. Homicide, Malicious Prosecution, Impeachment, Pecuniary Circumstances. RES ADJUDICATA See Former Adjudication, Identity, Judgments. RES GESTAE In General: An act or declaration can only be considered as part of the res gestae when it illustrates, explains or interprets other parts of the transaction of which it is itself a part. Chi. City Ey. Co. vs. Uhter, 212 111. 174; Mathes vs. Chi. City Ey. Co., 178 App. 34. Declarations, to become part of the res gestae, must have been made at the time of the act done which they are supposed to char- acterize, and have been well calculated to unfold the nature and quality of the facts which they were intended to explain and so harmonize with them as obviously to constitute one transaction. C. & E. I. E. E. Co. vs. Chancellor, 165 111. 438. Time of Act or Declaration: — //(. General: That which occurs before or after the act is done, may not be part of the res gestae, although the interval of separation is verv brief. Chi. City Ey. Co. vs. Uhter, 212 111. 174; Penn. Co. vs. MeCafFery, 173 111. 169; Montague vs. People, 141 111. 75; Leeklider vs. Chi. City Ey. Co., 142 App. 139; XII 111. Notes 485, §75. RES GESTAE 1133 And a declaration made a minute or more after the transaction may be inadmissible. Boyd vs. West Chi. St. Ey. Co., 112 App. 50. There is no inflexible rule fixing the time within which a state- ment must be made to make it part of the res gestae. If the state- ments are substantially concurrent with the act, and there is no time for deliberate fabrication, they are part of the res gestae. E. St. L. Ey. Co. vs. Allen, 54 App. 27; Muren C. & I. Co. vs. Howell, 217 111. 190; C. & E. I. E. E. Co. vs. Chancellor, 165 111. 438. The transactions in which the parties are absorbed may last for weeks so as to make what is said and done in connection with them, part of the res gestae. McMahon vs. Chi. City Ey. Co., 239 111. 334. The true inquiry is whether the declarations are a verbal act, illustrating, explaining or interpreting other parts of the trans- action of which they are themselves a part, or merely a history of a completed past affair. In the one case, they are competent, in the other, thev are not. McMahon vs. Chi. City Ey. Co., 239 111. 334; C. W. & D. Ey. Co. vs. Becker, 128 111. 545; C. & E. I. E. E. Co. vs. Chancellor, 165 111. 438; Boyd vs. Chi. St. Ey. Co., 112 App. 50; Svvanson vs. Chi. St. Ey. Co., 148 App. 135 ; XII 111. Notes 485 ; § 79. _ — Abortion: In prosecution for abortion, declarations by de- ceased, made over a year prior to her death, relative to act of self- abortion, are not admissible as part of res gestae. Clark vs. People, 224 111. 554. — Personal Injuries Generally: Statements of injured person, to be competent as part of res gestae, must be made at time of accident. C. VV. & D. Ey. Co. vs. Becker, 128 111. 545 ; West Chi. St. Ey. Co. vs. Carr, 170 111. 478; City of Salem vs. Webster, 192 111. 369; Greinke vs. Chi. City Ey. Co., 234 111. 564 ; C. B. & Q. Ey. Co. vs. Johnson, 36 App. 564. Statement of pain and suffering, two or three days after sup- posed accident, forms no part of the res gestae. Globe Ace. Ins. Co. vs. Gerish, 163 111. 625. Request by conductor of train to boy standing near, to assist him in pushing a grip car, is admissible as part of res gestae, in action for injuries resulting from starting of car a few minutes thereafter. Swanson vs. Chi. City Ey. Co., 242 111. 388. Testimony that bystander ran to plaintiff and said "you are badly hurt" is inadmissible not being part of the res gestae. Mathes vs. Chi. City Ey. Co., 178 App. 34. Declarations of conductor in charge of train, as to precautions he had taken to guard against danger of collision, and made on eve thereof, are admissible as part of the res gestae. C, & E. E. E. Co. vs. Holland, 122 111. 461. Admitting statements of the driver of a street car, just after the car was stopped, and while plaintiff was under it, is support- able under the doctrine of res gestae. Quincy Ey. Co. vs. Gnuse, 137 111. 264. Exclamations and complaint of pain, made morning after injury are admissible, but not statements and declarations of injured. W. Chi. St. Ey. Co. vs. Kennelly, 170 111. 508. 1134 RES GESTAE The declarations of an injured man, made hours after his injury, as to its cause, are not so connected with tlie circumstances and the time of the accident to be part of the res gestae, and are in- competent. Globe Ace. Ins. Co. vs. Gerish, 163 111. 625. A statement made by injured person as to manner in which in- jury occurred, made to a man about twelve feet away when the injury occurred, and who ran to the injured man immediately and heard the statement, is admissi))le as part of res gestae. Muren C. & I. Co. vs. Howell, 217 111. 190. Testimony that plaintiff answered "Yes" to a question as to whether she was hurt, asked by a witness upon reaching her, im- mediately after she fell, is competent as part of the res gestae. Springfield Ey. Co. vs. Hoeffner, 175 111. 634. Statements by deceased, made in hospital after injury occurred, are not part of res gestae. Sullivan vs. Guth & Co., 14S App. 538. A remark made by a motorman to a person who was attempting to flag the car in time to prevent collision with a fire engine, which collision occurred almost immediately after tlie remark, is so closely connected as to be competent when the person to whom the remark was made is testifying as to his attempt to prevent the collision. Chi. City Ey.'Co. vs. McDonnough, 221 111. 69. Entry in police record, of accident at point near station, made sometime after accident occurred, is not admissible. Penn. Co. vs. McCaffery, 173 111. 169. A declaration by a motorman running an electric car, made while the car was still on the body of one it had run down, that the reason he did not stop the car was that he could not reverse same, is admissible as part of res gestae. Springfield Ry. Co. vs. Welsch, 155 111. 511; Quincy By. Co. vs. Gmise, 137 111. 264. Evidence of what a flagman did and said at time of accident is competent. Penn. Co. vs. Eudel, 100 111. 603. A statement by deceased as to manner in which injury was sustained, made minute or more after accident, is not competent as part of res gestae. Boyd vs. Chi. St. Ey. Co., 112 App. 50, Statements of engine crew, shortly after accident, part of res gestae. St. L. Con. Ey. Co. vs. Allen, 54 App. 27. Statement by conductor, at moment of accident, admissible as res Gestae . Eeiten vs. L. S. Elev. Co., 85 App. 657, — Mine Injuries: The conversation between state inspector and mine examiner, two hours after accident, as to whether ex- aminer had marked place where accident occurred, is incompetent. Belskis vs. Bering Coal Co., 246 111. 63. Exclamations and declarations of pain, made while under debris, are competent. Haywood vs. Bering Coal Co., 145 App. 506. Statements of person injured in mine, to brother to whose RES GESTAE 1135 house he had been removed, after accident, do not constitute part of res gestae. Hoover vs. Empire Coal Co., 149 App. 258. — Passenger and Carrier: A statement made by a companion of one claiming to be a passenger, after car had gone a block, is not part of res gestae, but is competent only to discredit such com- panion. Chi. U. Trac. Co. vs. Lowenrosen, 125 App. 197. In action for wrongful ejection from a street car for refusal of plaiutilf to pay cash fare upon rejection of transfer tendered by him, a conversation between plaintiff and conductor issuing transfer, is admissible as part of res gestae. Chi. U. Trac. Co. vs. Brethaiier, 125 App. 204. . Conductor's declarations as to position of train just before col- lision, admissible to show precautions used. C. & E. I. Ey. Co. vs. Holland, 122 111. 461. Statements of motorman, made after accident, and at different place, incompetent. Chi. U. Trac. Co. vs. Daly, 129 App. 519. The declaration of a person injured by a railway train, as to cause of the injury, made after declarant was removed from place of injury, is not admissiWe as part of res gestae. Penn. Co. vs. McCaffery, 173 111. 169 ; XII 111. Notes 486, § 82. Statements by an injured boy, after he had walked to the side- walk and sat down, in answer to a question as to what was the matter, that the conductor threw him off the car, are not a part of the res ejestae and are incompetent. Chi'. W. D. Co. vs. Becker, 128 111. 545. In action against street car company for injuries received from being struck by elbow of conductor while he was scuffling with husband of plaintiff after dispute over transfer, the conversation and dispute between conductor and plainlift"s husband, concern- ing transfer are admissible as part of res gestae. McMahon vs. Chi. City Ey. Co., 239 111. 334. In action against street railway company for injuries due to alleged negligent stopping of ear, evidence that plaintiff notified conductor of her desire to alight at a particular place, made any time after becoming a passenger, is admissible. Chi. City Ey. Co. vs. Bundy, 210 111. 39. Statements made to and by a conductor after the accident are not part of the res gestae and should not be admitted. Cowen vs. St. L. & S. Ey. Co., 169 App. 236. To be admissible in evidence as part of the res gestae declarations of a person about to start on a journey must be contemporaneous with and explanatory of the act of departure. For such declar- ations to be admissible in evidence they must be made in connection with an act proven. The rule is that the res gestae generally remains with the loeus in cjuo and it does not follow the parties after the principal act is completed. C. & E. I. E. Co. vs. Chancellor, 165 111. 438 ; Neice vs. C. & A. E. R. Co., 165 App. 627. — Eohhery: Exclamations of prosecuting witness, made at time defendants were running away, that he was robbed, in con- 1136 RES GESTAE nection wiih question as to which way they went, are admissible as part of the res gestae. Bow vs. People, 160 111. 438. — Forgery: Evidence of different forgery by defendant, at time of commission of the one charged, is competent as part of the TBS QCStdS Cross vs. People, 47 111. 152 ; Steele vs. People, 45 111. 152, — Domieile: Declarations of a person, while going to a place, are admissible on issue of domicile. Matzenbaugh vs. People, 194 111. 108. — At Delivery of Deed: Declarations of grantor, at time of making deed, admissible. Lamb vs. Manning, 171 111. 612. — Payment: Statements accompanying payment are admissible. Eiggs vs. Cook, 9 111. 336. When payment of note is alleged to have been made at particular time, and in a particular office, all that was said and done at the time and place is admissible as part of the res gestae. Thorp vs. Goeway, 85 111. 611; McFarland vs. Lewis, 3 111. 344. — Suretyship: If a father, executing a note, signs his son's name, and procures others to become sureties, what he says to the sureties at the time of their signing, as to the son being principal with him is competent as part of the res gestae, where the son after- wards ratifies the execution of the note. By such ratification, with the knowledge of the facts, the son makes the acts and declarations of the father his own. Paul vs. Berry, 78 111. 158. — Sales: Conversation during negotiations for a sale, relative to what was done during the sale, is admissible. Benedict vs. Dakin, 148 App. 301. Statements made long after transaction incompetent as part of res gestae. Frike vs. Orr, 109 App. 200. — Book Entries: Book entries constituting parts of chain or combination of transactions between the parties, are admissible as part of res gestae. C. & N. W. Ey. Co. vs. Ingersoll, 65 111. 399; Eeynolds vs. Sumner, 126 111. 58; Monroe vs. Snow, 131 111. 126. Book entries made at time of transaction and recorded in the presence of the adverse party, are competent as part of the res gestae. Wiggins vs. Wilson, 123 App. 663. . — Stul)s of Check Book: Entries contained upon stub of check book are not part of the 7'cs gestae in action against estate to re- cover alleged indebtedness claimed to have been shown by such entries. McKenzie vs. Barrett, 148 App. 414. — Execution of Instruments: Declarations accompanying ex- ecution of note, admissible. Latham vs. Smith, 45 111. 25 ; Butz vs. Schwartz, 32 App. 156. Declarations accompanying making of grant, admissible. Brauer vs. Callender, 105 111. 88. Declarations of mortgagor competent. Bushnell vs. Wood, 85 111. 88. RES GESTAE 1137 Declarations showing reason for attaching separate paper to deed admissible. Lamb vs. Manning, 171 111. 612. — Facts Impressing on Witness' Mind Facts Testified To: Evi- dence of witness, of certain transactions which he claimed im- pressed certain alleged facts upon his mind, is not part of the res gestae and is not competent. Beyer vs. P. B. k C. T. Co., 156 App. 47. — Malicious Prosecution: Defendant should be allowed to prove all circumstances out of which the prosecution arose, and the various steps, as part of the res gestae. Banker vs. Ford, 152 App. 12. — Marriage: Where a party writes a letter referring to a pro- posal of marriage by party addressed, offering to convey to him certain property, acts and declarations of writer, prior to date of letter, are competent as part of res gestae, to show writer con- templated marriage. Kennedy vs. Borah, 157 App. 90. Letters addressed to woman, written by husband after alleged marriage, found in his possession and bearing his signature, are competent as part of the res gestae. Laurence vs. Laurence, 164 111. 367. — Mnrder: Statements made by either defendant or those standing by, referring to commission of the crime, made contemp- oraneously with or immediately after the same, in any way con- nected with or explanatory of such crime, are admissible as part of the res gestae. Haines vs. People, 138 App. 49. What the brother of deceased said when he was disarmed by the witness, cannot be proven as part of res gestae, where witness has not testified that deceased and brother were acting in concert, and it appears the brother was, at the time, directing his efforts against another man than accused. Morello vs. People, 226 111. 388. Declarations of deceased, in absence of defendant, made fifteen minutes prior to killing, embodying threats by defendant, are in- admissible as part of the res gestae, Montag vs. People, 141 111. 75. Evidence of intoxication of accused at time of commission of crime is admissible as part of res gestae. Eaflferty vs. People, 66 111. 118. Where line of defense .justified the shooting of person killed in self defense of accused, in rebuttal of that theory it is competent to show the person killed was not aggressive, but, on the contrary, acted on the defense, and to that end, any of the declarations, explanatory of accompanying acts, w^ould be admissible as part of res gestae. Wilson vs. People, 94 111. 299. (See HoMiciDE-i?e5 Gestae.) — Assault mth Intent to Kill: The acts and declarations of the people surrounding accused at time of alleged assault, are part of res gestae. Davids vs. People, 192 HI. 176. Acts of third person in attempting to prevent assault, and fact Ev.— 72 1138 RES GESTAE that defendant theatened to shoot the person interfering, are ad- missible as part of the res gestae. Powers vs. People, 42 App. 427. — Intoxicating Liquors: In action by parent for loss of sup- port by son, resulting from alleged improper sale of liquor to him by defendant, evidence that defendant permitted prostitutes to visit his saloon; and that plaintiff's son associated with them is admissible as part of the res gestae. Malioney vs. Goldblatt, 16S App. 563. — Rape: In prosecution for rape or assault with intent to com- mit rape, it may be proven by testimony of third persons that prosecutrix made complaint to them, provided such complaint was made as soon as practicable, and without unreasonable delay. Stevens vs. People, 158 111. Ill; People vs. Weston, 23G ill. 104. But not where prosecutrix does not tc3tify. People vs. Lewis, 252 111. 281. Memorandum : A memorandum and entries made at or about the time of trans- action to which they relate, in the regvdar and usual course of business, and of the employment and duties of the person who made them, are admissilile as part of the res gestae. Fitzgerald vs. Benner, 219 111. 485; Dreiske vs. Jones & Adams Co., 133 App. 572; Lawrence vs. Stiles, 16 App. 489; XII 111. Notes 485, §77. Narration: To be part of res gestae, declaration, whether verbal or written, must accompany the act which is subject of inquiry, and explain, illustrate, qualify, limit or characterize it, and must not be nar- rative of past events, for if it be wholly so, it will be entirely excluded, and if part of the declaration be so, that part will be excluded. McMahon vs. Clii. City Cy. Co., 239 111. 334; Belskis vs. Dering Coal Co., 246 111. 63 ; Qty of Chicago vs. McKecliney, 205 111. 372. A statement or declaration must be so connected with the trans- action they explain, as to form one of the characteristics of the transaction, or form with it one continuous transaction. Lamb vs. Coal Co., 140 App. 195. Recital of manner of accident, some time after occurrence there- of, is not part of the res gestae. Winn vs. Christian County Coal Co., 156 App. 179. In action against street car company and transfer company for injury, a conversation between witness for street car company and driver of cab collided with, after event had fully transpired, in which it is claimed the driver stated it was all his fault, is not part of the res gestae, being narrative of past transaction, Springfield Con. Ky. Co. vs. Puntenny, 200 111. 9. Statements, recitals of past events and mere hearsay, which do not accompany the performing of any act material to the case, are not part of the res gestae. Legris vs. Marcotte, 129 App. 67. Facts Accompanying Act: Whenever it becomes important to show occurrence of any fact or event, it is competent and proper also to show any accompany- RES GESTAE 1139 ing act, declaration or exclamation which relates to or is explan- atory of such fact or event. Such acts, declarations or exclam- ations are known to the law as res gestae. Fit^Geraia vs. Benner, 219 111. 485; Kyner vs. Boll, 182 111. 171; Lauder vs. People, 104 111. 248. What a party says in doing an act or directing it to be done is to be taken in connection with the act done, to explain it. Hurd vs. Haggerty, 24 111. 172. Declarations of one partner, in reference to an entry upon the books, open to all partners, as to why it was made, is proper as part of the res gestae. Plurd vs. Haggerty, 24 111. 172. Declarations accompanying an act, which show the purpose thereof, are part of the res gestae. Souleyret vs. O'Gara Coal Co., 161 App. 60. Tn action for forcible ejection from street car, testimony that complainant dropped her transfer on rear platform, and called con- ductor's attention to it is competent. Chi. Union Trac. Co. vs. Mahoney, 230 111. 562. Conduct and exclamations of passengers at time of accident are competent as showing rashness and undue alarm. G. & C. U. Ey. Co. vs. Fay, 16 111. 558. In action for injuries from alleged negligence in too suddenly stopping street car, testimony of another passenger that the car was suddenly stopped, knocking everybody in the car down, is admissible. W. Chi. St. Ey. Co. vs. Kennelly, 170 111. 508. In personal injury case, speed of train and ringing of bell are admissible as part of the res gestae. Chi. G. T. Co. vs. Kinnare, 76 App. 394. Entries made by bank officers on discounting and renewing a note are admissible as part of the res gestae. Eeynolds vs. Sumner, 126 111. 58. In action for injury resulting from an explosion, the conse- quences of such . explosion to others is competent as part of res gestae. Hertz vs. C. I. & S. Ey. Co., 154 App. 80. In action for unlawful ejection from street car, all that was said and done by conductor in making such ejection is competent as part of res gestae. Chi."Un. Trac. Co. vs. Brethauer, 223 111. 521; Chi. Un. Trac. Co. vs. McClevey, 126 App. 21. And generally whatever took place at the car where the acci- dent occurred, is part of the res gestae and properly admitted in evidence. E. St. L. Ey. Co. vs. Burns, 77 App. 529. General conduct with the exclamations voluntarily thrown out by appearances of imminent peril may be regarded as part of the res gestae. G. & C. V. Ey. Co. vs. Fay, 16 111. 558. And that of bystanders as to cause of accident. Golden vs. South Chi. St. Ey. Co., 180 App. 244. Although it may appear that other persons than plaintiff were ^^^^ ^ 'west Chi. St. Ey. Co. vs. Kennelly, 170 111. 508. 1140 RES GESTAE Verbal statements accompanying evidential fact are competent evidence. ' Benedict vs. Dakin, 148 App. 301. A declaration explanatory of an act, and in connection with such act, is admissible as part of the res gestae. Neice vs. C. & A. Ey. Co., 165 App. 627. Statements of conductor and his actions relating to transfers may be admissible as part of the res gestae. Chi. Trac. Co. vs. Mahoney, 230 111. 562. On bill by corporation to restrain disclosure of formula, state- ments of discoverer of formula, concerning his work and investi- gations then in progress, or cases under treatment, are competent. Keeley Co. vs. Hargreaves, 236 111. 316. Spontaneous Expressions : Declarations, to be part of res gestae, must be spontaneous and not statements Avhich are deliberate and prepared for a purpose. P. C. C. & St. L. Ey. Co. vs. Chicago, 144 App. 293. In action to recover for damages by mob violence, dispatch from mayor to governor, describing conditions and asking for troops, prepared by legal department of city, is incompetent. P. C. C. & St. L. Ey. Co. vs. Chicago, 144 App. 293. Self Serving Statements: Self serving statements are admissible when part of the res gestae. Bindley Co. vs. Watson, 151 App. 123. Statements merely self-serving and hearsay are not part of the res gestae. Mahon vs. Schroeder, 142 App. 538. Letters written by insured, to agent of company, when self-serv- ing, are incompetent. Helbig vs. Citizens Ins. Co., 234 111. 256. Declarations of Agent: Where a person, with authority, acts for another in the trans- action of certain business, what he may have said respecting the subject matter of such business, is admissible against such prin- cipal, as a verbal act, and as part of the res gestae. Prussian Ins. Co. vs. Empire Co., 113 App. 67; Summers vs. H. S. B. Co., 50 App. 381; Prickett vs. Madison Co., 14 App. 454; XII 111. Notes 486, § 80. To make declarations of an agent admissible so as to bind a prin- cipal, it is essential that, at the very time of making such decla- rations, such agent be transacting business of the principal, so that the statements of the agent become part of the res gestae. Lowden vs. Wilson, 233 111. 340; Matyenbaugh vs. People, 194 111. 108; Summers vs. Hibbard & Co., 153 111. 102; Prussian Ins. Co. vs. Empire Co., 113 App. 67 ; Young vs. Grand Lodge, 149 App. 603. Statements made by agent, while conducting the affairs of his principal and relating to transaction then depending, are admiss- ible as part of the res gestae. Hoffman vs. Chi. T. & T. Co.. 198 111. 452; Maher vs. Chicago, 38 111. 266; D. & H. Canal Co. vs. Mitchell, 92 App. 577. But admissions of agent, made long after transaction in question, RESIDENCE 1141 in answer to question not in usual course of business, are not com- petent against his principal. Andolman vs. C. & N. W. Ry. Co., 153 App. 169; M. C. Ey. Co. vs. Cougar, 55 111. 503. By-standers : Declarations of by-standers may, where spontaneous expressions, regard being had to circumstances, be admissible as part of the res gestae. Davids vs. People, 192 111. 176; Haines vs. People, 138 App. 49; Golden vs. S. Chi. St. Ey. Co., 180 App. 244. Statements of Employees : Statements of conductor who issued transfer, in reference to transfer privileges, are admissible. Chi. U. Trac. Co. vs. Brethauer, 223 111. 521. In action against carrier for injury to horses in shipment, con- versation between engineer and conductor of train, out of presence of plaintiff, does not constitute part of res gestae. Stewart vs. Vandalia E. E. Co., 103 App. 652. Admissions by conductor of train, made after accident occurred, are inadmissible. Gould vs. A. E. & C. Ey. Co., 141 App. 344; C. & A. E. R Co. vs. Fietsain, 19 App. 55; H, & St. L. Ey. Co. vs. Martin, 11 App. 386. Declarations made at time of accident are admissible. Muren Coal Co. vs. Howell, 217 111. 190; Springfield Con. Ey. Co. vs. Hoeflfner, 175 111. 634; E. St, L. Ey. Co. vs. Allen, 54 App. 27, In action for negligence of servant in placing order of com, delivered to plaintiff, in such a position as to allow a horse of plaintiff to eat same, causing death, a conversation between plain- tiff and servant, relating to negligence of servant in placing corn contrary to plaintiff's direction, does not constitute part of res gestae. Davis vs. Gwinn, 162 App. 72. RESIDENCE See Citizenship, Domicile, Contested Elections. Inhabitant Defined: An inhabitant is one who lives in a place, and has there a fixed bona fide residence; the term is to be distinguished from the term "citizen"; one may be at the same time a citizen of one country and an inhabitant of another. Spragins vs. Houghton, 3 111. 377. Corporations : The residence of a corporation must be considered to be in the state by whose laws it was created and where it has its principal office or place of business. S. & M. Ey. Co. vs. Morgan Co., 14 111. 162; Hubbard vs. U. S. Mort- gage Co., 14 App. 40 ; XI 111. Notes 1056, § 67. Whether a corporation is a foreign corporation depends upon the place of its organization. Iroquois Furnace Co. vs. Wilkins Co., 77 App. 59. The mere fact that a foreign corporation is licensed to do busi- 1142 RESIDENCE ness in this slate does not make it a eitizen of this state or a corpo- ration of this state. Sprague vs. Voting Maeh. Co., 134 App. 379. The introduction of evidence in assumpsit of a written contract between plaintiff and defendant, reciting that defendant was a "company registered in England under the Companies' act," tends to show defendant's non-residence. A.-W. Oil Fields vs. Miller, 21G 111. 272. The residence of a corporation for purpose of suit against it is where, by authority, it exercises its coi'ijorate functions. (J. & D. W. By. Co. vs. Bank of N. A., 82 ill. 493; Bristol vs. C. & A. Ey. Co., 15 ill. 436; Penn. Co. vs. Sloan, 1 App. 3G4; Eoche vs. E. I. Ins. Co., 2 App. 3GU; Lancashire ins. Co. vs. Corbett, 62 App. 236. A foreign corporation is not a person within the jurisdiction of the state until it has complied with the laws of such state. Estate of Speed, 216 111. 23. A corporation doing business in this state is a resident of this state for purpose of remedy for debt wherever the contract was made. ;,, . Wabash E. E. Co. vs. Duggan, 142 111. 248. Proof of a foreign statute under which plaintiff corporation was organized, together with proof of certiticate of incorporation issued in pursuance thereof, is sufficient to establish plaintiff's existence as a corporation de facto. Coziens vs. Chi. Brick Co., 166 111. 213; Dean & Son vs. W. B. Conkey, 180 App. 162. A certificate of Secretary of the state in which a corporation is organized, and a copy of the original record in his office, properly certified, with evidence showing that it assumed to act as a corpo- ration and do business in its corporate capacity, make a prima facie case of the existence of a de facto corporation. Concord Apart. House Co. vs. Alaska l^ef. Co., 78 App. 682. Under plea of nul tiel corporation, the burden of proving corpo- rate existence is upon plaintiff, and proof of its existence as a cor- poration de facto is sufficient. Coizens vs. Chi. Brick Co., 166 111. 213; Concord Apart. House Co. vs. Alaska Eef. Co., 78 App. 682. Attachment : Teinporary journey to another state with no intention of avoid- ing process or changing residence, no ground for. Boggs vs. Bindskoff, 23 111. 65. Residence consists of action and intention, and latter may be proved by party's own statement. Wells vs. Parrott, 43 App. 656; XII 111. Notes 181, § 1. Declarations by defendant's wife, in his absence, held insufficient to show intent to leave state. Jaycox vs. Wing, GO 111. 182. "Whether a person who moves from another state to this gains a residence in this state, within the meaning of our attachment law, is a question of intention dedueible from facts and circumstances. Wells vs. People, 44 111. 40. The non-residence of a defendant in attachment proceeding is sufficiently shown where it is proven that he left the state to avoid RESIDENCE 1143 the service of process in a divorce proceeding, and took up his residence in another state, "intending to remain there indefinitely. Witbeck vs. Marshall Co., 1S8 111. 154. Absence from the state, with a fixed abode in another place, with the intention of remaining permanently away, at least for a time, for business or other purposes, will constitute a non-residence with, in the meaning of the attachment act, even if there is an inten- tion to return at the expiration of the sojourn in the foreign state; but a casual or transitory absence from the state will not con- stitute such a non-residence. The absence must be so protracted as to amount to the preven- tion of legal remedies by ordinary process; and in determining whether one has ceased to be a resident, it is important to know whether the purpose of his absence is such as to admit the acqui- sition of residence elsewhere. Something more than the transient visit of a person for a time at a place is necessary to make him a resident ; there must be a set- tled fixed abode ; and intention to remain permanently, at least for a time, for business or other purposes, is required to constitute a residence within the legal meaning of the term. A domicile of a citizen may be in one state or territory and his actual residence in another. Jenks vs. Rounds, 87 App. 284, Must be proved as of date of issue of writ. Wittbeek vs. Marshall Co., 188 111. 154. ■ Is question of fact to be determined by jury. •■^^ Wittbeek vs. Marshall Co., 188 111. 154. In Divorce Proceedings: Although the word residence is not the same in meaning ^^ith the word "domicile," a residence being more transient in its nature, yet, ivithin the meaning of the divorce act, there must be some in- tent of permanent business or stay. It cannot be acquired by going to a place with the purpose of returning immediately, or by a visit to this state to bring suit while the party's domicile and business is in another state. Way vs. Way, 64 111. 406. A husband came to this state a little more- than two years before the filing of his bill against his wife for divorce, as he testified, with the intention of becoming a resident, and that such had been his intentions ever since. During a part of that time, he was absent on visits to his former home, and he testified, and was not contradicted, that such visits were for temporary purposes, and his residence during the whole time was in this state : Held, tliat his testimony was sufficient to make out a prima facie case of residence in this state. Albee vs. Albee, 141 HI. 550. The residence of one's origin is not lost by reason of special duties out of the state in the naval service, during a portion of the neces- sary time, even though during part of that time the petitioner kept house with his wife in another state. Knowleton vs. Knowleton, 155 111. 158. "Where complainant has resided in the state the required time, 1144 RESIDENCE but moves to another county just prior to bringing the suit, legal residence there for jurisdictional purposes depends upon good faith m going and intention to reside there permanently, and not upon the length of residence at new home, and complainant may testify directly. Hill vs. Hill, 166 HI. 54; Way vs. "Way, 64 HI. 406; Derby vs. Derby, 14 App. 645. Where offense was committed in this state, and bill is filed in county in which complainant lives, jurisdiction to grant divorce exists though complainant may not liave resided iu state for one whole year next preceding filing of bill. Dings vs. Dings, 123 App. 318. But the proceeding must be had in county in which complainant resides; the statute expressly so provides, and its language is im- perative and cannot be evaded. Spangler vs. Spangler, 19 App. 28 ; Davis vs. Davis, 30 111. 180. The residence of the wife, for purpose of maintaining suit for divorce, is not necessarily that of her husband. Hill vs. Hill, 166 111. 54. "Where there is a permanent separation between husband and wife, residence of wife does not follow the husband, and she may acquire a residence in a state other than that of her husband, if the change is made in good faith, and not for purpose of procuring a divorce. Chapman vs. Chapman, 129 111. 386. "Whenever facts occur entitling a wife to a divorce, she has a right to acquire a new domicile, separate from her husband. Acquisi- tion is determined by permanency as in other cases. Derby vs. Derby, 14 App. 645 ; Lazovert vs. Lazovert, 14 App. 653. A married woman may be a resident of this state though she has no domicile here, and if while she is such resident, the offense which supplies the ground of divorce is committed, thereafter her resi- dence becomes her separate and legal domicile. Bowman vs. Bowman, 24 App. 165. Residence by complainant for less than one year will not author- ize proof of cruelty or desertion in another state, in order to obtain a divorce. People vs. Beattie, 137 HI. 553. Averment in answer that "it is true complainant and defend- ant are and have been actual residents of the state of Illinois for more than one year last past," not an admission of one year's residence, where answer not filed same date as bill. Bechlenburg vs. Bechlenburg, 232 111. 120. Where complainant having sufficient residence files bill against defendant, who has not such, defendant may file cross bill praying divorce. Sterl vs. Sterl, 2 App. 223. In suit for separate maintenance, sheriff's return of summons sufficiently establishes residence of defendant. Raab vs. Raab, 150 App. 554. For Purpose of Taxation: A ''residence" in Illinois, contemplated by Inheritance Tax act is synonymous with "domicile" or "abode. 5 J RESIDENCE 1145 A residence, once established, is presumed to continue, and one alleging that a change has taken place, has burden of proof. Declarations, while admissible on question of change of residence, are entitled to but little weight when inconsistent with acts of party making them. To bring about a change of residence, there must not only be an intent to make the change, but same must actually be effected by abandoning the old residence and permanently locating in a new one. One who has decided to move from Illinois to the home of his daughter in another state, as soon as his business is settled, but in the meantime, is taken ill, and is taken by his daughter to her home for medical treatment and care, where he dies within a short time, will be deemed a resident of Illinois at time of his death, within meaning of Inheritance Tax act, where it appears such change was not expected to be permanent, everything being left undisturbed in the old home. People vs. Estate ol Moir, 207 111. 180; Holt vs. Hendee, 248 111. 288; XIV 111. Notes 778, §681. That the owner of credits, who resides in another state, has an agent in Illinois who receives applications for loans, and to trans- act other business, and the owner comes to Illinois once a month, but only temporarily to transact business with reference to such credits, does not constitute him a resident of Illinois, and in absence of proof tliat the documents evidencing such credits were actually in Illinois, there is no ground for separating the taxable situs from the domicile of the creditor. Heyward vs. Board of Review, 189 111. 234. Whether going from one state to another effects a change of domicile, is largely a matter of intent, and any declarations of the party, so connected with the act of going that they characterize the act, are admissible as evidence tending to establish the intent of the party. Matzenbaugh vs. People, 194 111. 108. That a person voluntarily submits to be taxed in another district is competent on question of residence. Ilelle vs. Deerfield Township, 96 App. 642. For Purpose of Administration: One having a permanent abode in a foreign state who comes to Illinois for temporary purposes, intending to return to his fixed abode, is not a resident of Illinois. Petition of Mulford, 217 111. 242. In strict legal sense, the domicile of a person is where he has his true, fixed, permanent home, and principal establishment, and to which, whenever he is absent, he has the intention of returning. Actual residence is not indispensable to retain a domicile after it has once been acquired, but is retained by mere intention not to change it and adopt another. Hays vs. Hays, 74 111. 312; Holt vs. Hendee, 248 HI. 288. As to Statute of Limitations: It is not necessary that there should be the actual change of a party's domicile in the strict legal sense of the word, — that is, an 1146 RESISTANCE TO OFFICERS abandonment of his domicile in this state and the acquiring of a domicile elsewhere, — to bring him within the meaning of our Statute of Limitations, but he must have acquired a fixed and permanent abode at a different place out of this state, at least, for the time being. relz vs. Schuell, 130 111. 379; McClure vs. Putnam, 142 App. 497. As Affecting Descent : Where an ante-nuptial contract was made between parties in a foreign country, in regard to the property to be acquired during marriage, and it appears the contract contemplated no change of domicile, but was to be performed in the place where made, it does not affect the real estate acquired in this country by the husband, after their emigration. Besse vs. Pelloc-houx, 73 111. 285; Long vs. Hess, 154 111. 482. The fact that adopted children were infants at time of emigra- tion of parents, incapable of assenting to a change of domicile, or of waiving rights, does not att'ect their status as to the real prop- erty acquired in the new domicile by the parents adopting them, the law of the new domicile being effective to control the dis- tribution. Long vs. Hess, 154 111. 482 ; Besse vs. Pellochonx, 73 111. 285. The statute relating to descent, so far as it attempts to change the common law rule whereby personal property follows the per- son of its owner, and its distrilmtion pursuant to the law of his domicile, applies only to property "in this state." Debts have no fixed situs, and hence are governed by the common law. They must still accompany and remain with the owner. The possession of evidence of indebtedness of a non-resident for the purpose of safe-keeping, at the time of his death, does not pass the title, and they are governed by law of owner's domicile on his death. Cooper vs. Beers, 143 111. 25; Carpenter vs. Conim. Trust Co., 161 App. 398. The domicile of the wife is that of the husband, and will remain, not only until it has been abandoned, but also until a new domicile is acquired by actual residence within another jurisdiction, coupled v.dth the intention of making the last acquired residence a per- manent home, and personal estate will be distributed according to the law of the domicile of the decedent. Cooper vs. Beers, 143 111. 25. Parties to Suit: In absence of any showing to the contrary, it will be presumed that the plaintiff' resided in the county where suit was brought. Traders Ins. Co. vs. Humphrey, 1U9 App. 24G. RESISTANCE TO OFFICERS In Executing Process : To constitute the offense, the officer or person must be authorized to execute process and the process legal which must be alleged in the indictment and proved on the trial. Jurisdiction and author- ity to issue must be shown and officer, at the time and place, be authorized in law to serve or execute same. RESTRAINT OF TRADE 1147 To prove accused guilty, the process must appear on its face to be a lawful process, which niiyht be lawfully executed at such time and place; that officer resisted was authorized to execute it and that accused obstructed, resisted or opposed the officer in executing or attempting to execute same. Bowers vs. People, 17 111. 372; XIII 111. Notes 1012, § 1, Mode of obstruction need not be averred ; it is a matter of evidence. McQuaid vs. People, S 111. 7n. Defendant may show ownership of property. Smith vs. People, 99 111. 445. RESISTING ARREST Circumstance Tending to Prove Guilt : That the accused resisted arrest may be shown in the first in- stance, the burden being upon the accused to show that such re- sistance was not for the purpose of avoiding arrest and prosecution for the charge on which he was being tried. McKeavitt vs. People, 208 111. 4(30. RESTRAINT OF TRADE Contracts — Validity : — Applying to Whole State: A contract in restraint of trade may be good which embraces within reasonable limits, parts of different states, but a contract which applies to the whole state is void and cannot be enforced. v Union Strawboard Co. vs. Bonfield, 193 111. 420; Lanzit vs. Sefton Mfg. Co., 184 111. 326; Hursen vs. Gavin, 162 111. 377; XI 111. Notes 982, § 149. A contract not to manufacture a product within a certain spec- ified territory, within which, only, it can be manufactured success- fully, is an agreement in total or general restraint of trade and void. Harding vs. Anier. Glucose Co., 182 111. .5.51. — Partial Restraint: Contracts in total restraint are void for the reason that they are injurious to the public, depriving it of the industry of the party restrained, and also because of the injury to the party himself by being deprived of the opportunity to pur- sue his avocation for the support of himself and family ; but a contract which is only in partial restraint of trade and is reason- able in its provisions as to time and place, and supported by a sufficient consideration, is valid, and the restraint is held to be reasonable whenever it is such, only, as affords a fair protection to the interests of the one in whose favor it is made. Andrews vs. Kingsbury, 212 111. 97; Linn vs. Sigsbee, 67 111. 75. Damag'es : Opinions of experts incompetent as to amount of damages suf- fered by plaintiff by breach of contract. Linn vs. Sigsbee, 67 111. 75. 1148 RESULTING TRUST So, in an action to enjoin breach of contract not to engage in the newspaper business in a certain city in any capacity for a certain period, proof that the newspaper defendant proposed to manage occupied a different field from complainant's paper is not material and is properly excluded. Andrews vs. Kingsbury, 212 111. 97. RESULTING TRUST See Trusts. REVENUE STAMPS See Stamp Act. REWARDS Burden of Proof: To entitle a person to reward, he must show a rendition of the services required after knowledge of and with a view to obtaining the reward. C. & A. Ry. Co. vs. Sebring, 16 App. 181 ; XIV 111. Notes 375, § 2. A person claiming a reward for obtaining information concern- ing the identity of a thief must show that he was the first to give the desired information, for if he w^ere not the first to gain and impart the information, he cannot recover. Higgins vs. Lessig, 49 App. 459. Knowledge of Reward: A reward cannot be recovered unless the claimant knew at the time of the performance of his services that the reward had been offered and in consideration thereof and with a view to earning the same, rendered the services specified in the offer. Williams vs. W. Chi. St. Ey. Co., 191 111. 610; Ensminger vs. 'Horn, 70 App. 605. The Promise: Where a circular is issued with the knowledge and approval of a bank, for the arrest of a thief, evidence of such facts is sufficient to show a promise by the bank. Bank of Minneapolis vs. Griffin, 66 App. 577; First National Bank vs. Hart, 55 111. 62. Notice of Acceptance: The rule as to the payment of an offered reward is based on the principles applicable to contracts; it being universally held that if one having knowledge of an offered reward does that for which the offer is made, by such performance there is a meeting of minds and a contract made. In the case of an offered reward for the doing of a certain thing, the act of one who, knowing of this, performs the conditions, REWARDS 1149 creates a contract ; the performance constitutes both acceptance and fulfillment. Van Vlissingen vs. Manning, 105 App. 255. Where a person, on the faith of a promise of reward made at a public meeting, expends money in the accomplishment of the object sought to be attained, it is not necessary that he should give promissor notice that he has done so to entitle him to maintain an action upon the promise. Wilson vs. McClure, 50 111. 366. Performance by Plaintiff: Where one employs another to pursue and capture a horse-thief and pays the expenses, he will be entitled to the reward offered for the apprehension and conviction of such thief. County of Montgomery vs. Eobinson, 85 111. 174. Claimant who procures the arrest of a party for whom a reward is offered is entitled to the reward, notwithstanding formal arrest is made by another. Swanton vs. Ost, 74 App. 281; First Katl. Bank vs. Hart, 55 111. 62. Defenses : Defendant may show that the information given him and for which the recovery was claimed was in his possession and was not new to him. Higgins vs. Lessig, 49 App. 459; Williams vs. W. Chi. St. Ey. Co., 191 111. 610. If reward is for apprehension, arrest and conviction of a crim- inal, each must be shown. The oft'er is an entirety and cannot be apportioned. Plaintiff must recover for all or none. Williams vs. W. Chi. St. Ey. Co., 191 111. 610; Ilogan vs. Stophlet, 179 111. 150. Where a sum of money is claimed by different persons, the fact that one of them sues for and recovers the amount does not consti- tute a bar to the action of the others for the same. Swanton vs. Ost, 74 App. 281. Where several persons associate for the purpose of tracing a crim- inal and finally find him, after an expenditure of some time and money, and then employ a local officer to make the arrest, the officer is not entitled to the whole reward merely because he has made the actual seizure. It will make no difference that such persons do not disclose to the officer the real name of the criminal, nor that they mistake the offense for which he is charged, and this with the purpose of keep- ing the whole of the reward to themselves; they are under no obligations to disclose to the officer. INIahoney vs. Whyte, 49 App. 97. Who May Receive: If railroad company makes no restrictions in offer, an employe is not excluded. C. & A. Ey. Co. vs. Sebring, 16 App. 181; S. C, 19 App. 222. There is nothing in the position that a person holds with a rail- road company to look after crimes and matters connected civilly and criminally with the company, which makes it against public policy for him to recover a rew^ard for the arrest of a criminal. Bank of Minneapolis vs. Griffln, 66 App. 577. 1150 EIPARIAN RIGHTS Sheriff cannot recover reward for appehension of criminal in his own county. Hogan vs. Stoplilet, 179 111. 150. Where the consideration for a reward for the recovery of money is that a person shall testify in behalf of the person offering it, the contract is illegal and void as against public policy. Boehmer vs. Foval, 55 App. 71. A bank director cannot take a reward offered for the detection of a robber of the bank and the recovery of the money stolen; his position is that of a trustee, and he is bound to act in that be- half, so far as he acts at all, without reward; and it makes no difference that his services as director were not compensated. Stacy vs. State Bank, 5 111. 91. RIPARIAN RIGHTS See Waters and Watercourses. ROBBERY See Possession, Receiving Stolen Property, Confessions, Accomplices, Corpus Delicti, Separate and Similar Offenses, Character, Intent. DISTINGUISHED FROM PRIVATE STEALING: As distinguished from larceny from the person, the gist of the offense is the force or intimidation and the taking from the person, against his will, a thing of value belonging to the person assaulted. The only difference between private stealing from the person of another, and robbery, lies in the force or intimidation used. Hall vs. People, 171 111. 540; Burke vs. People, 148 111. 70; XIV 111. Notes 435, §3. CORPUS DELICTI: It it appear that one makes an assault on another and against the will of the one assaulted takes from his person his money, goods or other valuable thing, by force or intimidation, the offense is shown. In regard to the force or violence with which the goods are taken, the principle is this: that the power of the owner to retain the possession of his goods was overcome by the robber, either by actual violence physically applied, or by putting him in such fear as to overpower his will, as if a thing be feloniously taken from the per- son of another, with such violence as to occasion a substantial cor- poral injury, or if it be obtained by a violent struggle with the pos- sessor, but where it appears that the article is taken without any sensible or material violence to the person, as snatching a hat from the head, or cane or umbrella from the hand of the wearer, — rather by sleight of hand and adroitness than by open violence and without any struggle on his part, — it is merely larceny from the person. It may be different if the article is so attached to the person or clothing as to create resistance and violence is used to ROBBERY 1151 p.,.. overcome it. AMien force is nsed to prevent the resistance of or to overpower the person robbed, tlien such force makes the offense robbery. Hall vs. People, 171 111. 540. FROM THE PERSON: The taking from the person is not understood to mean that the goods are actually on the person in a strict sense. Robbery ma}^ be conmiitted by violence or putting in fear, and feloniously taking money or other thing of value from the person, or in his presence, and under the immediate control of the person assaulted. O'Dounell vs. People, 224 III. 218; Burke vs. People, 148 111. 70. It must appear that the property was taken against will of owner. Hall vs. People, 171 111. 540. WEIGHT AND SUFFICIENCY: Manner of Taking- : The evidence must show that the taking of the property was accomplished either by physical force or by putting the owner in fear. There must be violence or intimidation of such character as that the injured party is put in fear. The fear must be of such a nature as in reason and common experience is likely to induce a person to part wdth his property against his will and to put him, as it Avere, under the temporary suspension of the power of exer- cising his will through the influence of the terror impressed. Steward vs. People, 224 111. 434; O'Doimell vs. People, 224 111. 218; Hall vs. People, 171 111. 540. Prosecuting witness testified to the taking from her of a hand- bag containing money, and that the hand bag was taken with such force as to bruise her arm, and it was lame for several days. Such taking was by force, and the act w^as robbery. Klein vs. People, 113 111. 596. If it appear that the defendant made an assault on the person alleged to have been robbed, and against his will took from his person his money, goods or other valuable thing by force or in- timidation, the offense of robbery will be shown. Burke vs. People, 148 111. 70. Proof that defendant, a physician, induced a person who had been brought to his office by a confederate, to undergo an exami- nation, and to pay an exorbitant amount for treatment does not justify a conviction for robbery, where methods used to obtain the money, though disreputa])le, do not amount to violence or in- timidation, even though the victim testifies he paid the money be- cause defendant's manner frightened him. Stewart vs. People, 224 111. 434. The fact that complaining witness was assaulted by a husband upon Ijeing discovered in a compromising situation with latter 's wife, and afterwards, and unconnected with the assault, the com- plaining witness gave his notes for a considerable sum to settle the matter, is not sufficient to convict the husband and wife of assault with intent to commit robbeiy, even though they might have con- spired together to extort money from him. Rippetoe vs. People, 172 111. 173. Evidence that accused unbuttoned the vest of prosecuting wit- 1152 ROBBERY ness, and took his pocketbook from the inside pocket, and that prosecuting witness was drunk and did not realize what accused was doing, and that he made no resistance, is not sufficient to sustain a conviction for robbery. Hall vs. People, 171 111. 540. Mere proof that one of two defendants charged with robbing prosecuting witness of his purse in a crowded street car was one of the men who "backed" prosecuting wdtness from the car door to the platform, is not sufficient to justify his conviction, in absence of any proof that he acted with the intent to aid the other defend- ant in securing the purse, or that there was any conspiracy or con- certed action between them, or even any acquaintance with each other prior to the robbery. People vs. Williams, 242 111. 197. The Property Taken: ^ Value and Idcntitij: It is not necessary to accurately de- scribe or prove the particular identity or value of the property taken from the person, further than to show it was the property of the person assaulted or in his care, and had a value. No spe^ cific value need be proven. Burke vs. People, 148 PJ. 70; Sheehan vs. People, 131 111. 22; XIV 111. Notes 436, § 8. The gist of the crime of robbery is the force or intimidation used and the felonious taking from the person of another, money or other thing of value against his will, and hence a conviction wall not be reversed although the proof of the character and denomin- ations of the money taken might not be sufficient to sustain a con- viction for larceny. Schroeder vs. People, 196 111. 211. Where a foreign coin was one of the articles taken, it is not error to allow witness to testify that they saw the accused, after the rol>bery, with foreign coin in his possession, without identify- ing the coin as to the amount or other particulars, where accused admits he had a similar coin and explains his possession of it but does not attempt to show that it was different in amount from one stolen. People vs. Deluce, 237 111. 541. ^Ownership: Proof of robbery from the person is sufficient prima facie evidence of the ownership of the money taken. Bow vs. People, 160 111. 438. Evidence that the prosecuting witness was carrying a pair of shoes under his arm when assaulted by accused, and that he stated to the police officer, after the assault, that he had lost his shoes, is sufficient evidence of the ownership of the property, where the indictment alleges that it w^as the property of prosecuting witness. Howard vs. People, 193 111. 615. — Intent: Where the fact of violence and the taking of the property has been proven, the felonious intent may be inferred. Howard vs. People, 193 111. 615. — Bes Gestae: Exclamations of prosecuting witness, made at time defendants were running away, that he was robbed, in con- RULES OF COURT 1153 nectioii with question as to which way they went, are admissible as part of res gestae. Bow vs. People, 160 111. 438. Identity of Defendant: Testimony by prosecuting witness that he had a good look at the man, and that defendant was that man, coupled with the fact that such defendant was picked out by the prosecuting witness, three weeks after the crime, from among a crowd of twenty-five hundred men, and pointed out to the police, is sufficient to justify a verdict of conviction as against the testimony of two witnesses who saw the robber some distance from them, running from the scene of the crime, who testified that defendant was not the man. People vs. Williams, 242 111. 197. Recognition of voice is competent. Ogden vs. People, 134 111. 599. One charged with crime may directly or indirectly make admis- sions of material facts tending to establish his guilt or disprove his defense, but not amounting to a confession, and these are admis- sible against him. Bow vs. People, 160 111. 488. On trial of two persons, prosecutor was asked if he had not been approached by somebody in interest of defendants, and if he had taken any money to settle the case, to which he replied, "Yes sir, I took twenty-five dollars from the uncle of one of defendants in payment of my watch, as I supposed," etc. Held, incompetent. Graham vs. People, 115 111. 566. Character of Defendant : Where husband and wife are charged with assault with intent to commit robbery, evidence which tends merely to show that the wife was not a virtuous woman is irrelevant and incompetent. Rippetoe vs. People, 172 111. 173. RULES OF COURT Judicial Notice: Trial court will take judicial notice of its own rules. Unless entered of record rules are of no validity. Cramer vs. Comm. Men 's Assoc, 260"^ 111. 516. Appellate Court will not take judicial notice of the rules of the trial court. Anderson vs. McCormick, 129 111. 308; Bonuey vs. McClelland, 138 App. 449; XII 111. Notes 473, § 4; Cf. Northern Coal Co. vs. Mueller Bros., 171 App. 342. Appellate Court will take judicial notice of rules of municipal court of Chicago. Sixby vs. Chi. City Ey. Co., 178 App. 218. Admissibility of Evidence to Establish : — Record: The record in which the rules of court are entered is the only competent evidence to prove their existence. Printed rules and testimony that they were adopted by the judges, is in- competent. Roby vs. Title Guaranty Co., 166 111. 336; XIV 111. Notes 438, § 8. — Affidavits: As to existence of rules are not competent. Davis vs. N. W. Elee. Co., 170 III. 595; Chicago City Ey. Co. vs. Gregory, 123 App. 259. Ev.— 73 1154 RULES IN ACTIONS FOR NEGLIGENCE Their non-existence must be proven by the testimony of the clerk of the court. Affidavits to the effect that there was no general rule or order of court does not establish the non-existence of such rule or order. Hughes vs. Humphrey, 102 App. 194. — Certified Copy: Filing a certified copy of a general order for the opening of depositions does not bring such order before Appel- late Court; that can only be done by a l)ill of exceptions. Sturtevant vs. Sullivan, 69 App. 47. Nor does the statement of the judge that he is familiar with the rules make them a part of the record. Thompson vs. Amer. Breed. Assn., 114 App. 131. RULES IN ACTIONS FOR NEGLIGENCE ADMISSIBILITY: Injuries to Third Persons : — By PlaintijJ : Rule of defendant is admissible as tending, with other evidence to show negligence. Not competent for pur- pose of founding a cause of action upon breach. Chi. City Ey. Co. vs. Lowitz, 218 111. 24; L. S. & M. S. Ky. Co. vs. Ward, 135 111. 511; C. & E. I. E. E. Co. vs. Jennings, 89 App. 335; C. & A. E. E. Co. vs. Logue, 58 App. 142; XII 111. Notes 482, § 59; Contra, C. E. I. & P. Ey. Co. vs. Downey, 96 App. 398. Not that plaintiff knew of the existence of such rule, but that it is merely a statement of what is a fair regard for the rights of the public. C. C. S. & St. L. Ey. Co. vs. Eyan, 165 111. 88; Devine vs. Chi. Junc- tion Ey. Co., 167 App. 195. Evidence showed deceased and servant had knowledge of rule. Chi. City Ey. Co. vs. Mc-Donough, 221 111. 69. — As a Defense: The private rules and regulations of a com- pany, prescribing the duty and powers of its servants and em- ployees, cannot affect persons having no notice of them. As the company is liable for the acts of its servants in the course of their employment, both in the rightful use and in the abuse of the powers conferred upon them or even in their willfull acts, evidence that its servants exceeded their authority is not admissible to defeat a recov- ery against the company by one injured by their acts, unless he had notice of the extent of the servant's powers. L. S. & M. S. Ey. Co. vs. Brown, 123 111. 162; I. C. E. E. Co. vs. Downs, 122 App. 545; Fitzpatriek vs. Bloom. City Ey., 73 App. 516. Nor may a witness give his opinion as to construction of rule. Penn. Co. vs. Stoelke, 104 111. 201. Evidence that a rule of the post-office department requires a transfer mail clerk to use extraordinary vigilance in guarding mails and not to leave them exposed is competent in action to recover for the death of a clerk killed by a freight train while attempting to cross the tracks to receive mail from an incoming passenger train. C. & A. E. E. Co. vs. Kelly, 182 111. 267. So rules of other companies using same tracks as defendant railroad company are admissible as bearing upon question of RULES IN ACTIONS FOR NEGLIGENCE 1155 ordinary care, regardless of whether defendant company or any of its employees had any knowledge of same. C. M. & S. p. Ry. Co. vs. O 'Sullivan, 143 111. 48. Injury to Employe : — Violation by Employe: Rules adopted by company are proper evidence bearing on question of ordinary care on part of person injured, and also upon question of negligence on part of defendant ; the adoption of a rule is impliedly a statement that the rule is reasonable and that it is necessary for the protection of employees. Devine vs. Chi. Jimct. Ry. Co., 167 App. 195. It is competent for servant to prove extent and character of plant in showing necessity for rules, but where plant is made up of several distinct mills, evidence should be confined to particular mill where injury occurred. Tijans vs. 111. Steel Co., 250 111. 554. Evidence of rules is admissilile for purpose of defeating action by servant to recover for injuries by reason of violation of known rules by such servant. C. & W. I. R. R. Co. vs. Flynn, 154 111. 448; Abend vs. T. H. & I. Ry. Co., Ill III. 202; I. C. R. R. Co. vs. Patterson, 03 111 290; Zoilesney vs. Univ. Club, 155 App. 633. The violation of a rule of a stock yards company requiring a certain track to be used by out-going trains exclusively is not negligence per se on part of engineer using such track to enter the yards, where he never had notice of the rule, and there is evidence tending to show the rule was not enforced but was disregarded habitually with the knowledge and acquiescence of the company. St. Louis Nat'l S. Y. Co. vs. Godfrey, 198 111. 288. — Customary Obedience: Evidence is inadmissible to show cus- tomary obedience where there is no contention of habitual violation. Bennett vs. Chi. City Ry. Co., 243 111. 420. — Uabitual Disobedience: Abrogation of a rule may be shown by proof of its habitual violation with knowledge of the employer. Kenny vs. Marquette Mfg. Co., 243 111. 396; C. & W. I. Ry. Co. vs. Flynn, 154 111. 448; Campbell vs. C. R. I. & P. Ry. Co., 149 App. 120; Preble vs. Wabash Ry. Co., 149 App. 584; Penu. Co. vs. Stoelke, 104 111. 201. Knowledge of the emploj^er of the violation may be actual or constructive. If it is continued for such a length of time that the employer might reasonably have known it, knowledge will be pre- sumed. Hampton vs. C. & A. R. R. Co., 236 111. 249; Coburn vs. M. E. M. Ry. Co., 149. App. 132. Parol E\'id.eiice of Rules : If rule is in writing, it is best evidence. Bennett vs. Chi. Citv Ry. Co., 243 111. 420; St. L. A. & T. H. R R. Co. vs. Bauer, 156 111. 106. Permitting counsel to read a rule, which in itself is competent, to a witness, instead of offering the printed rule, is not error unless specifically objected to. C. & A. R. R. Co. vs. Logue, 158 111. 621 ; St. L. & A. T. H. R. R. Co. vs. Bauer, 156 111. 106. 1156 SAFER METHOD SAFER METHOD Injury to Servant: If a servant, knowing the hazards of his employment as the business is conducted, is injured while engaged therein, he cannot maintain an action against the master for the injury merely on the ground that there was a safer mode in which the business might have been conducted, the adoption of which would have prevented the injury. C. & E. I. E, E. Co. vs. Heerey, 203 111. 492; Simmons vs. C. & T. E. E. Co., 110 111. 340; Penn. Co. vs. Lynch, 90 111. 334; E. J. & E. Ey. Co. vs. Myers, 226 111. 358. The question is not as to whether other modes were safe or safer, but was the mode adopted reasonably safe, and the admission of evidence as to a safer mode is error. Brossman vs. Drake Standard Co., 232 111. 412; Shook vs. Majestic Coal Co., 165 App. 586; Bohn vs. Standard Laundry Co., 148 App. 494; Kennedy vs. C. & C. Coal Co., 180 App. 42; William Grace Co. vs. Kane, 129 App. 247; XIII 111. Notes 479, § 620. SALES See Parol, Warranty, Specific Performance, Description, Identity, Possession, Infants, Brokers, Confusion of Goods, Customs and Usage, Pecuniary Circumstances, Fraudulent Conveyances, Market Price, Set Off and Counter Claim. SANITY AND INSANITY See Wills, Legal Conclusions, Mental and Physical States, Witnesses, Former Testimony. Presumptions : — In General: The presumption of law, before inquest found, is in favor of sanity. Norton vs. Clark, 253 111. 557; Kelly vs. Nusbaura, 244 111. 158; Isle vs. Cranby, 199 111. 39 ; XII 111. Notes 476, § 26. — • Contimmnce: Settled insanity proven once to have existed, is presumed to continue, until rebutted by proof. In re estate of Weedman, 254 111. 504; Trish vs. Newell, 62 111. 196; Titcomb vs. Van Tyle, 84 111. 371; Stitzel vs. Farley, 148 App. 635. If of a character likely to be merely temporary, as if it is the result of a sudden or violent disease, there is no presumption of its continuance. Taylor vs. Pegram, 151 111. 106; Trish vs. Newell, 62 111. 196. There is a distinction in the inferences to be drawn from proof of an habitual or apparently confirmed insanity, and that which may be only temporary. In the first case, proof is required to show a restoration ; while in the other, the party alleging insanity must bring his proof of a continued derangement to that point of tipie which bears directly upon the suliject in controversy. Trish vs. Newell, 62 111. 196. SANITY AND INSANITY 1157 — Paralysis: There is no presumption of law that a person rendered unconscious and incapable of mental action by stroke of paralysis will continue so for four months. Trish vs. Newell, 62 111. 196. — Absurd Belief: General insanity is not a necessary infer- ence from mere belief in matters of opinion, however absurd, as for example, a belief in Spiritualism. Orchardson vs. Cofield, 171 111. 14; Owen vs. Crumbaugh, 228 III. 380; Tiubey vs. Eichardsou, 224 111. 136. Nor a belief in Swedenborgian theory. tieott vs. Scott, 212 111. 597. — Suicide: The act of self-destruction raises no presumption of insanity, the law presumes a normal condition, — hence, that all men are sane. Grand Lodge vs. Wieting, 168 111. 408 ; Crum vs. Tliornley, 47 111. 192. Yet such act, and the mode and manner of its accomplishment may be considered, together with all facts and circumstances in determining question of sanity of deceased. Grand Lodge vs. Wieting, 168 111. 408 ; Crum vs. Thornley, 47 111. 192. — Heredity: It cannot be presumed that a person was insane merely because his mother had been so. Snow vs. Benton, 28 111. 306. Burden of Proof: — In Civil Action: In civil action, one alleging insanity has burden of proof. Austin vs. Austin, 260 111. 299; Kelly vs. Nusbaum, 244 111. 158; Isle vs. Cranby, 199 111. 39; Blanchard vs. Blanchard, 191 111. 450; Egbers vs. Egbers, 177 111. 82; Argo vs. Cofiiin, 142 111. 368; XII 111. Notes 1059, § 4. Insanity being an abnormal condition must be proven as a ques- tion of fact. Grand Lodge vs. Wieting, 168 111. 408. If a party not insane seeks to avoid an instrument given while mental faculties were temporarily impaired, the burden of proof is upon such party to show the mental incapacity and not upon the other to show mind was not impaired. C. W. D. Ey. Co. vs. Mills, 91 111. 39 ; Beaty vs. Hood, 229 lU. 562. So when it is sought to set aside a judgment and sale of land under it, on ground of insanity of defendant at time judgment ^vas rendered, it devolves upon party averring such insanity to prove it by a clear preponderance of the evidence. Titcomb vs. Van Tyle, 84 111. 371. — In Criminal Action: In criminal action the- legal presump- tion that all men are sane makes it unnecessary for prosecution to prove, in first instance, the sanity of accused, but if he prove facts or circumstances tending to prove his insanity, the burden of proof thereupon devolves upon prosecution to show the sanity of accused beyond a reasonable doubt. People vs. Casey, 231 111, 261; Jamison vs. People, 145 111. 357; Montag vs. People, 141 111. 75; Dacey vs. People, 116 111. 555; Chase vs. People, 40 111. 352; XI 111. Notes 1240, § 110. — Restoration: Burden of proof is upon party alleging restora- tion. Menkins vs. Lightner, 18 111. 282; Severns vs. Broffey, 155 App. 10; Stitzel vs. Farley, 148 App. 635. 1158 SANITY AND INSANITY — After Inqutst Found: The legal presumption is that all per- sons of mature age are of sane memory, and this presumption con- tinues until inquest found, when, perhaps, the presumption is re- versed, until rebutted by evidence that sanity has returned. Titcomb vs. A'an Tyle, 84 111. 371; C. W. D. Ry. Co. vs. Mills, 91 111. 39; Severns vs. Broifey, 155 App. 10. Admissibility of Evidence: — Acts and Declarations: Declarations of a testator are com- petent to show the state of his mind and mental capacity. Norton vs. Clark, 253 111. 557; Wilkinson vs. Service, 249 111. 146; Hurley vs. Caldwell, 244 111. 448. Acts and declarations of a person alleged to be insane, or pre- disposed to suicide, are competent to prove contrary state of mind. Jvimpertz vs. People, 21 111. 374. In prosecution for murder, where insanity is pleaded in defense and self-possession and coolness of accused, at and immediately after the act, is urged as showing insanity, evidence that thirty years before, accused was engaged in smuggling is admissible to account for such coolness, on the theory that such experience edu- cated nerves of accused to withstand shocks. Hopps vs. People, 31 111. 385. — Good Character: Where defense is insanity, evidence of uniform good character as a man and a citizen is proper for jury to consider in determining whether a person whose character has been uniformly good, has, in an insane moment, committed the crime charged. Under plea of insanity, he is entitled to all benefit which may be derived from fact of good character, as tending, slightly it may be, to the conclusion that he could not have been sane at time the deed was done. If a man, of a sudden, fall from a high position to the commission of outrageous crimes, it would not be an unnat- ural or forced inference that he may have been affected by insanity at the time. Hopps vs. People, 31 111. 385. — Insanity of Collateral Kin: If there is evidence tending to show jnental unsoundness, it is competent to show the insanity of testator's collateral blood relation, no further removed than uncles and aunts, without making proof that it was hereditary in *-* |t O -M Q /"* ^- p T» Martin vs. Beatty, 254 111. 615; Dillman vs. McDanel, 222 111. 276. — Record of Inquest: Admissible. Jefferson vs. Supreme Tent, 132 App. 242; Donnelly vs. Chi. City Ey. Co:, 163 App. 7; Scliniidt vs. K. & L. of S., 176 App. 213. Insanity, and insanity of a continuing character, may be shown by proper finding, upon inquest regularly held. Laugdon vs. People, 133 111. 382. — • Record of Former Suit: The record of a former suit in which there was a verdict of a jury finding complainant mentally incom- petent to make a deed sought to be set aside, is not admissible in subsequent proceedings by defendant to former suit against stran- gers to that proceeding, to set aside a deed to them from same grantor upon same ground. Bollnow vs. Roach, 210 111. 364. — Appointment of Conservator: (See Wills, — Testamentary Capacity.) SANITY AND INSANITY 1159 Expert and Opinion Evidence : — Admissihility of Expert Testimony: A medical witness who has heard all the evidence bearing on question of sanity of a per- son may be asked whether or not, upon that evidence, he is of the opinion such person was of sound or unsound mind. Schneider vs. Manning, 121 111. 376. A medical expert may give his opinion, in answer to hypothetical questions, that the person described is sane or insane. Garrus vs. Davis, 234 111. 326. Depositions of experts may be admitted. Jefferson vs. Sui:)reme Tent, 152 App. 242. — Aelmissihility of Non-Expert Evidenee: Non expert witnesses who have had opportunity to observe a person may give opinion as to mental condition or capacity. Austin vs. Austin, 260 111. 299; Mayfield vs. French, 246 111. 435; Ring vs. Lawless, 190 111. 520; Craig vs. Southard, 148 111. 37; Amer. Bible Society vs. Price, 115 111. 623: XII 111. Notes 522, § 367. Rule is same in criminal cases. Jamison vs. People, 145 111. 357. Non expert cannot give opinion of sanity based on hypothetical case. Pittard vs. Foster, 12 App. 132. Testimony of doctors upon subject of mental capacity is not entitled to any greater weight than that of laymen who are men of good common sense and judgment. Austin vs. Austin, 260 111. 299 ; Carpenter vs. Calvert, 83 111. 62. Non exi^erts who have had opportunities to observe a person may give their opinions of his mental condition or capacity, at the same time stating their reasons, and the facts observed upon which they base their opinions, including conversations as a part of the observed facts, but to render such testimony admissible, they must be limited to conclusions drawn from the specific facts thus dis- closed. Jamison vs. People, 145 111. 357. It is competent to admit the opinions of witnesses' who are not experts, touching the testator's sanity, first stating the observa- tious on which opinions are based. After detailing facts upon which an opinion is based, they may give to the jury that opinion, to be received by them and to be valued according to the intelligence of the witness and his capacity to form an opinion. U. Trac. Co. vs. Lawrence, 211 111. 373. A non professional witness may give his opinion as to whether another acts in a childish manner or has failed mentally. C. P. & St. L. R. R. Co. vs. Richter, 85 App. 591. A witness who is not an expert may detail facts and circum- stances from which the jury might form an opinion, and may then give his ow^n conclusions from such facts in the form of an opinion. Graham vs. Deuterman, 244 111. 124 ; Snell vs. Weldon, 239 111. 279. Witness must first detail facts and circumstances. Without such detail opinion is worthless. Brainard vs. Brainard, 259 111. 613. And such witness may make comparison of the mental condi-^ tion before and after an alleged impairment. :- N. Y. C. St. L. Ry. Co. vs. Luebeck, 157 111. 595. 1160 SANITY AND INSANITY It is not necessary, to allow a non-expert witness to speak of men- tal impairment, that the impression testilied to must have been- formed at the time of a particular act or fact, it may be the re- sult of observation of a continued condition, or a series of facts. N. Y. C. & St. L. Ey. Co. vs. Luebeek, 157 ill. 595. — Competency of Witnesses: The fact that a person did not discuss with witnesses business affairs or relatives, does not dis- qualify such witnesses to give opinions. Wetzel vs. Firebaugli, 251 111. 190. Witness who was acquainted with testator and had seen him fre- quently, is competent to express opinion as to his mental capacity, though he has never seen him transact business. King vs. Lawless, 190 111. 520 ; Keithley vs. Stafford, 126 111. 507. But a non-expert witness is not competent to give opinion as to insanity at the time of death of a person when he had but a pass- ing acquaintance with him, and to whom he had not spoken for eight months or a year before his death occurred. Grand Lodge vs. Wieting, 168 111. 408. — Province of Court: Whether a non-expert witness has suffi- cient knowledge of another to express an opinion on subject of his mental condition is to be determined by the court. Martin vs. Beatty, 254 111. 615; Graham vs. Deuterman, 244 111. 124; Grand Lodge vs. Wieting, 168 111. 408; People vs. Payne, 161 App. 640. — In Actions for Wrongful Death: In action by personal rep- resentative of a person wrongfully killed, against estate of party killing, to recover compensation for the death, evidence of insanity of latter party at time of his wrongful act causing the death, is inadmissible when offered in defense of the action. Mclntyre vs. Sholty, 121 111. 660; A. O. V. W. vs. Holdon, 51 App. 200. (See Intoxication.) Weight and SuflEiciency: — In General: Though the mind of a person may be, to some extent, impaired by age or disease, still if he has capacity to com- prehend and -act rationally in the transaction in which he is en- gaged, if he can understand the nature of his business and the effect of what he is doing, and can exercise his will with reference thereto, his acts will be valid. Martin vs. Harsh, 231 111. 384; XII 111. Notes 1059, § 5. No rule can be laid down as to the quantum of evidence neces- sary to establish insanity, except that it must be sufficient to over- come the legal presumption of sanity, and to overbalance the testi- mony tending to sustain such presumption. Green vs. Phoenix M. L. Ins. Co., 134 111. 310. Evidence to overcome presumption of sanity must be clear and satisfactory. McCarty vs. Kearnan, 86 111. 291. Defense of insanity may be established by preponderance of evi- dence. Hopps vs. People, 31 111. 385. — Intoxication: Mere drunkenness is not sufficient to release a party from his contracts. To render a transaction voidable on account of the drunkenness of a party to it, the drunkenness must SANITY AND INSANITY 1161 have been such as to have drowned reason, memory and judgment, and to have impaired the mental faculties to such an extent as to render the party non compos mentis for the time being. Martin vs. Harsh, 231 111. 384. — Confincme7it in and Discharge from Asylums: Proof that one accused of assault was confined in an insane asylum some years previously, with the opinions of witnesses that his insanity con- tinued at time of assault, is insufficient to relieve him of criminal liability, where he is shown to have transacted business in the ordi- nary manner for several years. Meyer vs. People, 156 111. 126, Discharge from asylum may be regarded as evidence of restora- tion to sanity. Clay vs. Hammond, 199 111. 370; Langdon vs. People, 133 111. 382. Insanity of a continuing character, such as to raise a presump- tion of continuance, is not proven by confinement in an aslyum, there having been no finding of such character. Langdon vs. People, 133 111. 382. Nor is it proven by removal of a person from the penitentiary in which he is confined, to an asylum for the insane; there is no inquest or legal adjudication in such case, the removal being made upon the advice of the attending physician or the warden. Langdon vs. People, 133 111. 382. — Record of Inquisition: Record of insanity inquisition is ad- missible. The judicial determination is not conclusive, but is competent to be considered. Donnelly vs. Chi. City Ey. Co., 163 App. 7. But a finding of a jury that a person was then insane and that "disease with her is hereditary" rendered on an ex parte hearing, the purpose being to give authority for confinement in asylum is not admissible as against beneficiary on insurance certificate, where breach of warranty is claimed to establish fact of insanity in blood relatives. Schmidt vs. K. & L. of S., 176 App. 213. — As to Overcoming Presumption of Sanity: The evidence to prove insanity must be sufficient to overcome the presumption of sanity, and any evidence that may be produced in support of the presumption. Green vs. Phoenix Ins. Co., 134 111. 310. — Appointment of Next Fnend: The presumption that all adult persons are of sound mind and capable of managing their own affairs is not rebutted by an order of the court, based on an ex parte affidavit, appointing affiant to act as next friend of the party alleged in the affidavit to be of unsound mind. Isle vs. Cranby, 199 111. 39. — Change from Temperance to Intemperance: "Where evidence shows that a man, once temperate and reserved, became addicted to the use of intoxicating liquors, and talkative, yet transacted his business in a shrewd manner, such evidence is insufficient to show insanity such as will vitiate a mortgage, where attending physician testifies that no evidences of insanity appeared. Thulin vs. Anderson, 154 App. 41. 1162 SEALS SCHOOL TEACHER See Work and Services, Burden of Proof. SEALS See Consideration, Eelease, Parol, Corporations, RxVtifica- TION. JUDICIAL NOTICE: Seals of Notaries Public of Sister State: — Acknowledgments: Courts will take judicial notice of no- tary's seal. Kanisay vs. People, 197 111. 594; Hardin vs. Curtiss, 45 111. 252; XII 111. Notes 473, § 8. The letters "L.S." following the name of the notary in a cer- tificate of acknowledgment, as indicated in an abstract of title, sutBciontly indicate that an official seal was attached to such cer- tificate. Bucklen vs. Hasterlik, 155 111. 423, — Affidavits: The official seal and jurat of a foreign notary public are not prima facie evidence of his authority to adminis- ter oaths, if the jurat contains no recital of the fact of such authority. Trevor vs. Colgate, 181 111. 129; Desnoyers Shoe Co. vs. First Natl. Bauk, 188 111. 312; Ferris vs. Com. Bank, 158 111. 238. An affidavit as to execution of a warrant of attorney to con- fess judgment is void where the foreign notary public before whom the affidavit was made does not certify, under his official seal, that he has authority to administer oaths, and no other evi- dence of such fact was filed therewith. Desnoyers Shoe Co. vs. First Natl. Bank, 188 111. 312. Of Notaries of the County: Courts will talie judicial notice of the notaries public of the county in which they sit, hence jurat need not be authenticated by notarial seal. Schaeffer vs. Kin^el, 123 111. 430; Hertig vs. People, 159 111. 237; Thielman vs. Burg, 73 111. 293. Seal of State : The great seal of its own or a foreign government is judicially noticed, without jDroof, by every court. C. & A. E. E. Co. vs. Keegan, 152 111. 413. Even though the state or province be only a portion of a larger federation. Calhoun vs. Eoss, 60 App. 309. Clerk of Court of Record: Seal of clerk of court of record of sister state will be judicially noticed. Williams vs. Williams, 221 111. 541. It is not necessary, under act of Congress, for it to appear, either by attestation of the clerk or of the certificate of the judge, that the seal annexed is the seal of the court. Where the clerk of a court of record certifies to a transcript of proceedings under the seal of the court, and the presiding judge SEALS 1163 of the court certifies tliat tlie attestation is in due form, it is all the act of Congress requires. Hull vs. Webb, 78 App. G17. PRIVATE SEALS : Word "Seal": An inslrument in which the M'ord "seal" appears following the signature of the maker is a sealed instrument whether a scrawl is made around the word seal or not. Nor is it essential that there be a recital of the seal in the body of the instrument. Jackson vs. Security Ins. Co., 233 111. 161. But a statement in a note that it is sealed, if no seal is affixed, does not make note sealed instrument. Vauce vs. Fuuk, 3 111. 263. "L. S.": Document which contains in body statement that it is sealed by parties, and which has letters "L. S." in print opposite signa- tures is sealed instrument. Ankeuy vs. McMahon, 4 111. 12. Printed : Person who places his signature opposite scrawl already made, whether printed or written, thereby makes it his own. Ankeny vs. McMahon, 4 111. 12; Jackson vs. Security Ins. Co., 233 111. 161. Question for Court: As to Avhether instrument is under seal. Schwartz vs. Herrenkiml, 2G 111. 208. Record Copy: Where a certified copy of a deed is produced as evidence, and the word "seal," surrounded by a scroll, is found where a seal is usually placed, as the recorder in making the copy never at- taches a seal or wafer or wax, the presumption will be indulged that the original was properly sealed. Deiniiiger vs. McConnell, 41 111. 227. Partnership : Scrawl affixed to partnership signature of firm name, by mem- ber with authority, has effect as seal of all members. Eames vs. Preston, 20 111. 389'. Adoption of Seal: rj , - AVhen a sealed instrument purports on its face to be sealed by all its signers, and there are several seals to it, but not so many as there were names, the court will presume that each person signing it adopted some one of the seals. Eyau vs. Cook, 172 111. 302; McLean vs. Wilson, 4 111. 50; Trodgen vs. Cleveland Stone Co., 53 App. 206; XIV 111. Notes 538, § 3. But the obligors will be permitted to rebut such presumption by plea and proof, Davis vs. Burton, 4 111. 41. If one executes an instrument wdth a seal, and others sign after him without a seal, they are presumed to adopt the seal already affixed; it is otherwise if a party signs an instrument, not affixing a seal, and others sign and seal after him, without his consent, — that is, as to the first signer, a simple instrument. Eames vs. Preston, 20 111. 389. 1164 SEALS PRIVATE CORPORATION: Presumption : — Fruper Seal: Where the signature of one having authority executing the instrument is proven, and seal is affixed, the seal affords prima facie evidence that it is the seal of the corporation. Phillips vs. Cotfee, 17 111. 154; Wagg- Anderson Co. vs. Lesher Co., 78 App. 678; XI 111. Notes 1100, 391. This rule does not dispense with evidence that the seal is the seal of the corporation, but adopts as a rule of prima facie evi- dence that when an instalment is duly executed by one having authority, the seal he attaches is the seal of the corporation until it is impeached and shown otherwise. Eeed vs. Fleming, 209 111. 390; Phillips vs. Coffee, 17 111. 154. — Scrawl: AA^iere the execution of an instrument is in the name of a company by its agents, with a scrawl for a seal, it will be presumed, in absence of proof, that the seal used was the proper and only seal of the company. Miller vs. Superior Mach. Co., 79 111. 450; I. C. E. R. Co. vs. John- son, 40 111. 36; Conkey vs. Goldman, 125 App. 161. — Authority to Use: When the seal is proven to be the seal of the corporation, and to have been set to the deed by the agent, it is prima facie evidence of his authority to do the act. Springer vs. Bigford, 160 111. 495; Ashley Wire Co. vs. 111. Steel Co., 164 111. 149; Phillips vs. Coffee, 17 'ill. 154. — Act of Corporation: Instrument bearing seal of corporation, and purporting to be its act, is presumed to be the act of the cor- poration, though signature is that of corporate officer, and not name of corporation. Con. Coal Co. vs. Peers, 150 111. 344; Sawyer vs. Cox, 63 111. 130; Phillips vs. Coffee, 17 111. 154; Conkey vs. Goldman, 125 App. 161. The seal of a corporation appearing upon an instrument is prima facie evidence of the assent of the corporation and the authority to execute the instrument. Eeed vs. Fleming, 209 111. 390. — Bill of Sale: By vice-president. Springer vs. Bigford, 160 111. 495. — Lease: By president. Private seal. Con. Coal Co. vs. Peers, 150 111. 344. — Appeal Bond: By attorney. I. St. L. Ey. Co. vs. Morganstern, 103 111. 149. By agent, with scroll for seal. Miller vs. Superior Mach. Co., 79 111. 450. — Deed: Purporting to bind corporation, signed by president and vice-president and not in name of corporation. Sawyer vs. Cox, 63 111. 130. Vice president. Not signed by secretary. Smith vs. Smith, 62 111. 493. — Lease: President of company for corporation. President of company described as party of second part and covenant "by party of second part." N. W. Distillery Co. vs. Brant, 69 111. 658. — Promissory Notes: Warrant of attorney to confess judg- ment. McDonald vs. Chisholm, 131 111. 273; Anderson Trans. Co. vs. Fuller, 73 App. 48. SEDUCTION 1165 — Mortgage: By president. Uniou Life Ins. Co. vs. White, 106 111. 67. — Voluntary Assignment: Vice-president. Wagg-Anderson Co. vs. Leslier & Co., 78 App. 678. What Sufficient Proof of Authority : Where execution by corporation of an instrument in suit is denied by verified plea, all other proof having been made, it is not essential that proof of authority of executing officer be shown, if corporation, being a party denying such execution, has acted under the instrument in question and has thus recognized its existence. Conkey Co. vs. Goldman, 125 App. 161. Certified Copy of Instrument: Where a certified copy of an instrument executed in behalf of a corporation and as its act, shows, after name of president, the word, (seal), this affords prima facie evidence that it is the seal of the corporation. It is not necessary to make a fac simile of the corporate seal in the copy. Anthony vs. International Bank, 93 111. 225. Admissibility of Instrument : Contract is admissible in evidence if subject is within powers of corporation, though writing is not under seal. SiberUug vs. Miller, 207 111. 413; Green vs. Blodgett, 159 111. 169. SECONDARY EVIDENCE See Best and Secondary. SEDUCTION See Alienating Affections, Criminal Conversation, Bast- ardy. Loss of Service: — Presumplions and Burden of Proof: A minor has no right of action. Kight of action for seduction of female in her minority is in parent. Heaps vs. Dunham, 95 111. 583; XIV 111. Notes 540, § 2. Action may be sustained, not only by the parent, but by a guardian, master or other person, (brother-in-law), standing in loco parentis to person seduced. If person seduced is a minor, the action will be sustained whether she resided with plaintiff or elsewhere, at time of seduction, if she was legally under the control of, or might be required to per- form service for plaintiff. Ball vs. Bruce, 21 111. 161. The father must prove that the relation of master and servant existed, but it is little more than legal fiction, and proof of the nominal relation of master and servant is sufficient to give the father a standing in court. Proof of the slightest service is suffi- cient, and when proven, and the cause otherwise established, the 11G6 SEDUCTION extent of the recovery is not limited to the value of the services lost to the parent as a master, but the shame and mortification of the father, the injury to the good name and character of the family of which he is the head, and the mental suffering of the father because of the dishonor to his family, are proper elements of damages. (Jarretson vs. Becker, 52 App. 255, The right of the mother to the custody of a minor child does not arise in the lifetime of the father, unless so ordered by the court in a proper case, and in the absence of proof to the contrary, it will be presumed that the father is still alive and the right of action remains in him. Hobson vs. Fullerton, 4 App. 282. AVhere there is no proof of the relation of master and servant actually existing between the mother and daughter, there must be some proof that the mother was entitled to the wages of her daughter at the time of the alleged seduction, in order to sustain the right of action by the mother. Hobson vs. Fullerton, 4 App. 282; Heap vs. Dunham, 95 HI. 583. Where it appeared that a daughter, though an adult, had, since arriving at her majority, resided with her father as one of the famih% the same as when in minority, and had since her mother's death, a period of seven years, been his housekeeper, and cared for his minor children, occasionally, with her father's consent, doing washing and other housework away from their home, it was held that the relation of master and servant was sufficiently shown. Bayles vs. Burgard, 48 App. 371. The age of the daughter is immaterial. If a minor and un- married, the father is entitled to her services. The relation of master and servant need not be otherwise proven. If an adult, it must appear that she resided in the family, and there must be some proof of slight acts of service, and if such be proven, the age of the daughter is immaterial. Garretson. vs. Becker, 52 App. 255. A father may recover for loss of service of an adult daughter w^ho, though married, was separated from her husband, and a member of such father's family, where loss of service was the result of an illegal carnal assault. Palmer vs. Baiim, 123 App. 584, — Weight and Sufficiency: Slight acts of service will be suffi- cient to support the action. Ball vs. Bruce, 21 HI. 161; White vs. Murtland, 71 111. 250; Gar- retson vs. Becker, 52 App. 255. Actual service or actual residence with parent at the time, is not required. It is only necessary to show that the parent has the legal right, at the time, to command the services of the child. White vs. Murtland, 71 111. 250; Anderson vs. Ryan, 8 111. 583; Bayles vs. Burgard, 48 App. 371. Defenses : — Chastity of Daughter: General reputation of the daughter for chastity is involved in the issue, and the testimony of others than herself may be introduced to show their own criminal inti- macy with her, and the time and place. White vs. Murtland, 71 HI. 250. SEDUCTION 1167 Particular acts of immorality as well as general bad character of party seduced, must be confined to what occurred previous to defendant's misconduct. White vs. Murtlaiul, 71 111. 250. If the seduced is examined as a witness, it is not proper to ask her whether, about time the child was begotten, she had not had intercourse with other men. Doyle vs. Jessup, 29 111. 460. Witness was asked if he had "observed and was acquainted with the disposition" of the woman, and to state whether or not she was a pert, forward girl. Court said question ' ' called for no acts, but the mere opinion of witness as to her disposition. She might have been both pert and forward without being lewd." White vs. Murtland, 71 111. 250. — Consent of Daughter: Evidence that the daughter yielded willingly to the intercourse is not admissible for the defendant. White vs. Murtland, 71 111. 250. — lielease hy Daughter: Not admissible. Heaps vs. Dunham, 95 111. 583. — Force: Proof that force was used will not defeat parent's case, but will aggravate the injury. White vs. Murtland, 71 111. 250. That the act was yielded to without force or seduction, makes no diiference in right of action ; it is enough that the act was done. Leucher vs. Steileu, 89 111. 545; Palmer vs. Baum, 123 App. 584. — Opposition of Parents: Defendant offered to prove that his parents were opposed to his keeping company with the plaintiff's daughter, on account of his youth and indiscretion, and that plain- tiff had been notified of such fact, not directly from defendant's parents, which the court refused to admit. Such evidence was in- admissike. If the offer had been to prove that plaintiff' had been warned against defendant on account of his bad habits, or profli- gate character, the evidence would have been admissible. But knowledge of plaintiff that defendant's parents were opposed to his keeping company with the daughter on the mere ground of youth and indiscretion, would not indicate that a seduction was apprehended. Mains vs. Cosner, 62 111. 465. — Identity: The legal name of a person need not be alleged in a declaration; it is sufficient if that name by which the person is known, and which has been adopted by such person is employed. Palmer vs. Baum, 123 App. 584. Damages : — Pecuniary Circumstances: In action by father for debauch- ing his infant daughter and getting her with child, it is competent to show the pecuniary circumstances and position in society of both plaintiff and defendant. But this is not for purpose of ascertaining what amount of damages defendant is able to pay, but with a view to ascertaining the extent of plaintiff's injury, perhaps fixing a standard of ex- emplary damages. White vs. Murtland, 71 111. 250; Grable vs. Margrave, 4 111. 372. — Exemplary: Exemplary damages may be recovered. Ball vs. Bruce, 21 111. 161; XIV 111. Notes 541, § 10. 1168 SEPARATE AND SIMILAR OFFENSES But in action by the father, for seduction of adult married daughter, punitive damages should not be allowed, when it appears that there was no excessive viciousness, deliberate malice, brutal- ity or other special elements tending to aggravate the otfense committed, and that offense Mas almost a matter of invitation. Palmer vs. Baum, 123 App. 584. — Loss of Service: Necessary expenses of attendance, society and comfort, are elements of damages. Grable vs. Margrave, 4 111. 372; Bayles vs. Burgard, 48 App. 371; Leucher vs. Steileu, 89 111. 545. But not expense of rearing child. Palmer vs. Baum, 123 App. 584. — Disgrace : The disgrace cast upon the family is a material element. Mighell vs. Stone, 175 111. 261; Grable vs. Margrave, 4 111. 372; Bayles vs. Burgard, 48 App. 371. — Abortion: Medical attendance and expenses caused thereby, are admissible. It is an essential element of the wrong leading to the loss of service which is ground of action. It is immaterial under what circumstances injury was wrought. It is no defense that crime was rape and not seduction. White vs. Murtland, 71 111. 250. — Means Used: Proof of sexual intercourse between defendant and plaintiff's minor daughter while living with her father, fol- lowed by pregnancy, confinement and birth of child, is proof enough of seduction to sustain suit by father. Leucher vs. Stileu, 89 111. 545. — Promise of Marriage: Is admissible because tending to show that defendant sought the society of plaintiff's daughter under the pretense of honorable motives, and that the illicit intercourse was, therefore, a result of seduction on his part in the strict sense of the word. Mighell vs. Stone, 175 111. 261; Mains vs. Cosner, 62 111. 465. But .iury should be instructed not to consider such promise of marriage in aggravation of damages. Mains vs. Cosner, 62 111. 465. — Offer of Marriage: After suit brought, inadmissible to mit- igate damages. White vs. Murtland, 71 111. 250. — Breach of Promise : Seduction, if in consequence of the promise, mav be given in evidence in aggravation of damages. Tubbs vs. Van Kleek, 12 111. 446. SELF DEFENSE See Homicide. SEPARATE AND SIMILAR OFFENSES See Confessions, Bastardy, Gaming, Admissibility of Evidence: — In General: The general rule is that proof of a distinct, substantive offense cannot be admitted in support of a prosecu- tion for another offense. People vs. Jennings, 252 111. 534; People vs. Cleminson, 250 111. 135; Bromm vs. People, 216 111. 148: Bishop vs. People, 194 111. 365; Janzen vs. People, 159 111. 440'; Lyons vs. People, 137 111. 602; Hickman vs. People, 137 111. 75; XI 111. Notes 1241, § 118. SEPARATE AND SIMILAR OFFENSES 1169 Proof of misconduct not connected with the charge upon which accused is being tried should not be admitted, as such evidence is likely to prejudice the jury against the defendant and cause them to lose sight of the issues which they have sworn to try. Addison vs. People, 193 111. 405; Farris vs. People, 129 111. 521; Baker vs. People, 105 111. 452; Hayward vs. People, 96 111. 492; Giflford vs. People, 87 111. 210. In a criminal case evidence tending to prove a similar but dis- tinct offense from that for which the accused is being tried, is not admissible for the purpose of raising an inference that he committed the crime of which he is accused. Bishop vs. People, 194 111. 365; Parkinson vs. People, 135 111. 401. As a general rule, proof of other acts is inadmissible unless they are part of the res gestae. People vs. Gibson, 255 111. 302; People vs. Gray, 251 111. 431. The mere proximity of time within which two offenses may be committed does not necessarily make one a part of the other. Im- mediateness is not the tru"e test. There must be a casual relation or logical and natural connection between the two acts or they must form parts of but one transaction. People vs. Gibson, 255 111. 302. "Where a person is on trial for a particular offense, and a com- plete detached narrative of that offense by a witness involves the recital of another offense, it is not error to permit him to complete the detailed narrative of the offense for which the party is indicted, notwithstanding the recital of another offense for which he is not indicted. Parkinson vs. People, 135 111. 401. The test of admissibility of evidence is the connection of the facts proved with the crime charged, and whatever testimony tends directly to show the defendant guilty of the crime charged is competent, although it tends to show him guilty of another offense. People vs. Moeller, 260 111. 375; People vs. Jennings, 252 111. 534; Andrews vs. People, 117 111. 195. Where evidence offered tends to prove the offense alleged, it is not inadmissible because it tends to prove another offense. People vs. Eardin, 255 111. 9; People vs. Jennings, 252 111. 534; People vs. White, 251 111. 67; Williams vs. People, 166 111. 132; Farris vs. People, 129 111. 521; Orr vs. People, 63 App. 305; McDonald vs. People, 25 App. 350. When facts and circumstances amount to proof of another crime than that charged, and there is ground to believe that the crime charged grew out of it or was in any way caused by it, such facts and circumstances may be proved, to show the quo animo of the accused. Henry vs. People, 198 111. 162. — To Show Guilty Knowledge: The rule precluding evidence of distinct crimes other than the one charged in the indictment is subject to the exception that where it M^as necessary to show guilty knowledge or a particular intent to establish the offense charged, proof of other offenses by the defendant, of the same character, may be introduced. People vs. Hagenow, 236 111. 514. Where defendant is accused of renting rooms for purpose of Ev. — ^74 1170 SEPARATE AND SIMILAR OFFENSES keeping therein a common gaming house, guilty knowledge may be shown by proof that on former occasion premises had been rented to same party for gaming purposes. People vs. Viskniskki, 255 111. 384. — Embezzlement: Where defendant is charged with embez- zlement, by the fraudulent conversion to his own use, of money placed in his hands to be loaned for the owner, it is not competent for the prosecution to prove that defendant had collected or secured money belonging to other parties, and on several occasions, which he had fraudulently converted to his own use. The evidence should be confined to charge set forth in the indictment. Kribs vs. People, 82 111. 425. — Extortion: On a charge of extorting money by threats, evi- dence that accused, on former occasion, threatened to kill the same party unless he paid him money is competent to characterize the conduct and language of accused at the time the money was extorted. Glover vs. People, 204 111. 170. — Sexual Crimes: On principle there can be no distinction as to the admission of this class of evidence between a prosecution where the charge is incest or adultery, and a prosecution where the charge is rape upon a female child under the age of consent, if such testimony is admissible in the first two classes of cases, logically it must be admissible in the last named class. People vs. Gray, 251 111. 431. In prosecution for rape without force, other offenses with pros- ecuting witness are admissible. People vs. Grav, 251 111. 431; Ambach vs. People, 247 111. 451; People vs. Duncan, 261 111. 339; XIV 111. Notes 295, § 14. But acts of intercourse between accused and other parties than the prosecuting witness are not admissible. People vs. Gibson, 255 111. 302; Dalton vs. People, 224 111. 333; Janzen vs. People, 159 111. 440. Confessions by accused of crime other than that charged in the indictment, while not admissible as a substantive fact, may, when not separable from a competent confession, go to the jury under cautionary direction from the court. Wistrand vs. People, 218 111. 323; Gore vs. People, 162 111. 259. Proof of previous acts of incest with prosecuting witness are admissible. People vs. Turner, 260 111. 84; David vs. People, 204 111. 469; Bolen vs. People, 184 111. 338. Where defendants charged with living together in open adultery, prior and subsequent acts of improper familiarity or of adultery, between the parties, whether occurring in the same or other juris- dictions, may be proved in explanation of, or to characterize, the acts of the parties complained of as constituting the offense charged. Crane vs. People, 168 111. 395. — Forgery: Evidence of another forgery, committed by accused at the time of commission of offense for which he is on trial, is competent in identifying the party and transactions, and as res gestae. Cross vs. People, 47 111. 152; Steele vs. People, 45 111. 152. SEPARATE AND SIMILAR OFFENSES 1171 Evidence of statements or admissions in reference to the note for the forgery of wliich accused is being tried, are admissible, but what he has said of another note said to have been forged is not admissible to prove the charge upon which he is being tried. Fox vs. People, 95 111. 71. Evidence is admissible to show that defendant had, about the same time, in his possession, or uttered or attempted to utter, other forged instruments of same description. Anson vs. People, 148 111. 494; Fox vs. People, 95 111. 71; Cross vs. People, 47 111. 152 ; Steele vs. People, 45 111. 152. — Illegal Sale of Drugs: The fact that a bill of particulars alleged that a sale of cocaine was made by defendants on a certain date, without stating to whom the sale was made or that it was made by a clerk, does not preclude proof "that the defendants kept for sale a certain catarrh powder, which was a compound of cocaine, and that their clerk made a sale of the same in absence of defendants, where it is not denied that the clerk w^as authorized to sell and was expected to sell what was called for. And where defendants contested authority of clerk to make the sale counted on, proof of other sales before and after the one on which the prosecution is based, is competent for purpose of show- ing the manner of conducting the business and the authority of the clerk, as w^ell as upon the question of intent. People vs. Zito, 237 111. 434. -. — Receiving Stolen Goods: Proof that accused on former occasion received some of the same goods through the same chan- nel is competent as tending to show guilty knowledge. People vs. Baskin, 254 111. 509; Lipsey vs. People, 227 111. 364. — ■ Lottery: Proper, in such case, to admit in evidence, on be- half of prosecution, not only the ticket sold, but the bill and advertisement delivered to the purchaser, which explained the purpose and character of the scheme, and also other tickets and bills or advertisements of similar kind, sold and delivered by accused to other parties, as tending to prove the intent with which the ticket was sold. Thomas vs. People, 59 111. 160; Dunn vs. People, 40 111. 465. — Larceny: "Where larceny is of jcAvels, and effected by sub- stitution of imitations, other imitations substituted by accused in other instances are admissil)le to show ability. Gindrat vs. People, 138 111. 103. Inadmissible to prove independent crimes, even though of same general character, nor his willingness to commit a similar offense at the time. Bishop vs. People, 194 111. 365. — Homicide: Admitting proof of the killing of a person other than one named in indictment, and an assault upon another, by defendant, in same difficulty, is proper where the evidence is in- separable from that of the killing of the person named in the in- dictment, and relates to one and the same transaction. Hiekam vs. People, 137 111. 75; XII 111. Notes 920, §43. — -False Pretenses: Where defendant is accused of obtaining money by means of worthless draft, other drafts similar to that 1172 SEPARATE AND SIMILAR OFFENSES mentioned in indictment, found in his possession, are competent as tending to show guilty knowledge and intention. Wbiteniau vs. People, S3 App. 3(59. But evidence tending to show that defendant was in the habit of making false pretenses or resorting to fraudulent practices in making of sales of horses is inadmissible. Jacksou vs. People, 126 111. 139. — Burglary: Where accused charged with burglary in enter- ing a hotel, proof that the keys of other hotels were found on his person, one of which unlocked the door of the room where he was discovered, is admissible as tending to disprove his statement that he was intoxicated and did not know how he came to be in the hotel. Brueu vs. People, 206 111. 417. Where burglary is of a series of connected transactions proof of the entire series is admissible. People vs. Moeller, 260 111. 375. — Conspiracy: Whenever in a conspiracy or other similar case it is necessary to prove a particular intent, and the evidence in regard to the crime charged tends to show two intents as to one or more of the defendants, one intent being an innocent or other intent than the one charged, and the other intent being the cor- rupt intent charged, evidence of other similar offenses is admissible as to such defendants for the sole purpose of proving such corrupt intent, if such evidence tends to prove such intent. People vs. Pouchot, 174 App. 1. In prosecution against two defendants for conspiracy, evidence of commission of similar offense by one of the defendants, is inad- missible. Johnson vs. People, 124 App. 213; Towne vs. People, 89 App. 258; Cf. People vs. Warfield, 172 App. 1. Where issue is whether a party is guilty of a general conspiracy, distinct overt acts of conspiracy may be given in evidence, and when issue is whether party is guilty of a specific overt act, it is com- petent to show other overt acts constituting a part of the res gestae. McDonald vs. People, 126 111. 150. — Con-fhdence Game: It is proper, for purpose of showing guilty knowledge, to prove that the defendant obtained money of other persons by the same scheme, by which he obtained money of com- plaining witness. People vs. Donaldson, 255 111. 19; People vs. Weil, 243 111. 20S; People vs. Weil, 244 111. 176. Evidence of similar transactions in which accused made use of bogus checks as alleged, is admissible for purpose of showing guilty knowledge. Juretich vs. People, 223 111. 484. Evidence of similar transactions practiced by accused upon other parties is admissible not for purpose of showing a willingness on part of accused to commit the offense charged, but to show guilty knowledge of which he claims himself to be innocent. Dubois vs. People, 200 111. 157; Morton vs. People, 47 111. 468. — Abortion : To show guilty knowledge, proof of abortions per- SERVICE 1173 formed by defendant upon other women than deceased, is admis- sible. People vs. Hagenow, 23G 111. 514. SEPARATION OF WITNESSES See Exclusion and Separation of Witnesses. SERVICE See Judgments, Foreign Judgments, Justice of the Peace, Judicial Notice, Records, Parol. OFFICIAL RETURN: Judicial Notice: Courts will take judicial notice of its own officers and w^hen terms expire. Glos vs. Greiner, 226 111. 546; Dyer vs. Last, 51 111. 179; Brackett vs. People, 115 111. 29; XII 111. Notes 473, §8. But this only w'hen officer assumes to act as such. Brush vs. Lenuon, 76 111. 496; Chambers vs. People, 5 111. 351. Presumptions : Every presumption in favor of the return will be indulged and it will not be set aside upon the uncorroborated testimony of the party upon whom service purports to have been made. A sound public policy, the security of the litigants, and the stability of legal proceedings demand that the return of the sworn officer shall not be set aside or impeached except upon satisfactory evidence. Hilt vs. Heimberger, 235 111. 235; Callender vs. Gates, 45 App. 374; Sullivan vs. Niehoff, 27 App. 421; XIV 111. Notes 140, §68. How Questioned: Before judgment, by plea in abatement. Waterbury Nat'l Bank vs. Reed, 231 111. 246; Elec. Co. vs. Mfg. Co., Ill 111. 309; Union Natl. Bank vs. Chi. Natl. Bank, 90 lU. 56; Siebert vs. Thorpe, 77 111. 43; Callender vs. Gates, 45 App. 374. Amendment : AVhere the officer is willing and desirous of correcting his return, so as to show a legal service, parol evidence is admissible for the purpose of showing the propriety of amending his return. Spellmeyer vs. Gaff, 112 111. 29. After the death of the officer, parol evidence is incompetent to aid return. Wilson vs. Greathouse, 2 111. 174. Effect as Evidence: The sheriff's return of service does not import absolute verity, but is only 2irima facie evidence of the truth of the matters therein stated. ■ _, „„ _„ ,^ Hilt vs. Heimberger, 235 111. 235; Siebert vs. Thorpe, 77 111. 43; Hickey vs. Stone, 60 111. 458; Harper vs. Mangel, 98 App. 526; Newman vs. Greeley State Bank, 92 App. 638; Contra, Fitzgerald vs. Kimball, 86 111. 396 ; Bottsford vs. O 'Conner, 57 111. 72. When May be Contradicted: Where the rights of third persons have been acquired ni good 1174 SERVICE faith, the return of an officer showing service of summons cannot be contradicted ; but as against parties acquiring rights with notice, the return is not conclusive and may be impeached by clear and satisfactory evidence. Hilt vs. Heimberger, 235 111. 235; Jones vs. Neely, 82 111. 71. If officer, by fraud or collusion with a party, or by mistake, makes a false return, a court of equity has full power and jurisdiction to interpose and give the appropriate relief, and to permit the party injured to aver against the truth of the return and to show it to be false, although it is a matter of record. Waterbury Natl. Bank vs. Eeed, 231 111. 246; Kochman vs. O'Neill, 202 111. 110; How vs. Mortell, 28 111. 478; Harper vs. Mangel, 98 App. 526. In regard to injunctions, after a judgment at law, it may be stated as a general principle that any facts which prove it to be against conscience to execute a judgment and of which the injured party could not have availed himself in a court of law, or of which he might have availed himself at law but was prevented by fraud or accident unmixed with any fraud or negligence in himself or agents, will authorize a court of equity to interfere. Higgins vs. Mullock, 73 111. 205 ; Owens vs. Eanstead, 22 111. 161. In setting aside default official return may be contradicted. Wildav vs. McConnell, 63 111. 278. COLLATERAL PEOCEEDINGS: Domestic Judgment of Court General Jurisdiction: Where a return is without date, but decree recites the defend- ants were duly served, it will be presumed court became satisfied, in some legitimate mode and by proper evidence, that service was in season. Eivard vs. Gardner, 39 111. 125; Harrison vs. Hart, 21 App. 348. — Recital of Service in Judgment: Such a finding, like any other judicial determination, can never be contradicted, varied or explained in a collateral proceeding by parol or other evidence beyond or outside of the record itself. The question must be tried by the record, and while finding may be rebutted by other portions of the same record, it cannot be overcome by other means. If, by an inspection of the whole record, it is seen there was no jurisdiction, the finding is overcome. , I. C. E. R. Co. vs. People, 189 111. 119 ; Lancaster vs. Snow, 184 111. 534; Swift vs. Yauaway, 153 111. 197; Dickison vs. Dickison, 124 111. 483; Hunter vs. Stoneburner, 92 111. 75; Haywood vs. Collin, 60 111. 328. Where court has proceeded to adjudicate a case, it will be pre- sumed that the court had evidence of such service or appearance as conferred jurisdiction of the person. The question is primary and must be first determined, but the presumption may be rebutted. If record shows insufficient service, and fails to show the court otherwise acquired jurisdiction, then the presumption is rebutted, and court will be held to have acted upon insufficient service. When the return appears in the record, and there is no finding from which it may be inferred the court otherwise acquired juris- diction, it will be held that the court acted on the service appear- ing in the record. .--.\. Bottsford vs. O'Conner, 57 HI. 72. (See Eecords.) SERVICE 1175 Courts Inferior Jurisdiction: There is no presumption in favor of judgment of court of in- ferior and limited jurisdiction, but tlie facts must appear in the record, showing the jurisdiction. Osgood vs. Blackinore, 59 111. 261. SUBSTITUTED SERVICE: Copy of Bill: — Affidavit Before Foreign Notary: An affidavit of the service of process upon defendant in another state, made before a notary- public of such state, is not competent evidence of the fact in absence of proof as to authority of the officer to administer oaths, and does not confer jurisdiction. Trevor vs. Colgate, 181 111. 129. The certificate of clerk of a court of record of foreign state, under his official seal, and attached to jurat of justice of the peace resid- ing in the county, stating that the justice was authorized to take acknowledgment and administer oaths, is sufficent proof of his authority to administer the oath to the person making the affidavit of service of notice. Williams vs. "Williams, 221 HI. 541. — Service in the State: Not good by copy of the bill. Townsand vs. Townsand, 21 111. 540. — Applies to Infants: Statute, which provides for service on defendants residing or being without the state, by the delivery of a copy of the bill and notice of commencement of the suit, applies to and includes non-resident infants as well as adults. Hale vs. Hale, 146 HI. 226. — Summons Need Not Issue: The statute does not make the issue and return of summons necessar^^ to the validity of a service by a copy of the bill, with a notice of the commencement of the suit, as to non-resident defendants. Cloyd vs. Trotter, 118 111. 391. — Of the Notice: The notice of the commencement of a chanc- ery suit and the copy of bill to which notice is attached, are to be considered as one instrument, and the fact that the term at which defendant is to appear is not stated in notice does not render service thereof insufficient, if the term of court appears from at- tached copy of bill. Williams vs. Williams, 221 111. 541. — Period of Service and Default: Service of a notice and copy of bill less than thirty days before term at which defendant is required to appear does not preclude acquiring of jurisdiction where default is not entered until term following the one at which defendant was required to appear, the beginning of which is more than thirty days from the time notice and copy were served. Williams vs. Williams, 221 111. 541. Publication : — Corporation: Proof may be made of the publication of a notice by an agent of the publisher, notwithstanding publisher may be a corporation. A corporation may have an agent as well as an individual or a co-partnership. Maass vs. Hess, 140 111. 576; XIV 111. Notes 141, § 72. 1176 SET-OFF AND COUNTER CLAIM A certificate, with the corporate seal attached, made by an agent of corporation other than the president, is sufficient where it is shown by the minutes of the board of directors, that such agent was expressly authorized to make certificates of publication. Pentzel vs. Squire, 161 111. 346. The seal of a corporation publishing a delinquent tax list need not be affixed to the certificate of publication made by its president, the act being an individual and not a corporate act. Hertig vs. People, 159 111. 237. If a publisher's certificate is signed by his agent, his authority must appear. But if the publisher is a firm or corporation, sig- nature of a member of firm or officer, showing his official connection with the newspaper is enough. Fox vs. Turtle, 55 111. 377; Smith vs. Smith, 62 111. 493. — How Certificate Must Be Signed: A certificate of publication of notice which does not purport to be signed by the publisher or his agent, and which shows on its face it was not so signed, is of no efi'ect, as it does not comply with statute. Kearney vs. City of Chicago, 163 111. 293. — Extrinsic Evidence to Aid: Defective certificate of publica- tion may be aided by extrinsic evidence. "Barnett vs. Wolfe, 70 111. 76; Eue vs. City of Chicago, 66 111. 256; Drainage Dist. vs. Highway Comrs., 238 111. 521. Certificate of publisher is not the only evidence that may be had with reference to proof of publication. McChesney vs. People, 178 111. 542; Lingle vs. City of Chicago, 172 111. 170; Harris vs. Lester, 80 111. 307; Kiely vs. Barton, 32 App. 524; I. C. B. B. Co. vs. People, 189 111. 119. And is admissible though objector appears specially. Lingle vs. City of Chicago, 172 111. 170. To fix the date of an undated notice, reference may be had to the date of a newspaper containing the notice. Pinch vs. Sink, 46 111. 169; Goudy vs. Hall, 36 111. 313. Judgment void for want of service of process cannot be made valid 1)3^ parol evidence. Haywood vs. Collins, 60 111. 328. Evidence extrinsic to the record is inadmissible to impeach a decree and to prove that the court had no jurisdiction, e. g. to prove absence of service by publication. Eeedy vs. Camfield, 159 111. 254; Connelly vs. Eue, 148 111. 207; Bickerdike vs. Allen, 157 111. 95; Seilbeck vs. Grothman, 248 111. 435. SET-OFF AND COUNTER CLAIM See Assumpsit, Money Counts. Burden of Proof: — In General: Although recoupment, considered as a right, enables a delinquent defendant, conceding to the plaintiff a right of action, to prevent a recovery or reduce its amount, it is not upon any merit of his own, but for the fault of the plaintiff, in connec- tion with the same transaction on which he sues. The burden of proving such fault rests upon him and is the same that it would be SET-OFF AND COUNTER CLAIM 1177 if he n^ere plaintiff suing for the damages caused by it ; and if that fault consists in the breach of another agreement, independent of the one in which plaintiff sues, but contained in the same instru- ment, and relating to the same subject matter, he must show, in like manner, that he is not himself in default as to that agreement. Harber Bros. vs. Moffat Cycle Co., 151 111. 84; Purcell vs. Sage, 2U0 111. 342 ; N. S. Lumber Co. vs. S. S. Lumber Co., 176 App. 96. A defense of recoupment is admissible under general issue. Hubbard vs. Eoehe, 133 App. 602. In pleading a set-off the defendant as to it assumes the attitude of a plaintiff and is bound to prove, in reference to it, the same facts as if he had instituted his action upon it. Lairfl vs. Warren, 92 111. 204; Eussell vs. Excelsior Co., 120 App. 23; Kelly vs. Garrett, 1 Gil. 649; Holmes vs. McKenuan, 120 App. 320; Messmore vs. Larson, 86 111. 268; XIV 111. Notes 552, §38. — Must Exist at Commencement of Action: Plea is an affirm- ative one, and it is incumbent upon defendant to prove as well the genuineness of the demand he seeks to set off as that it was due him when suit w^as brought. Osgood vs. Groseclose, 159 111. 511; Ellis vs. Cothran, 117 111. 458; Pettis vs. Westlake, 4 111. 535; Brass vs. Green, 113 App. 58. Since the claim sought to be set off against plaintiff's demand must have been owned by defendant when suit was brought, an assignment of an open account, made on day of trial, is not admis- sible to prove a sale of the account to defendant. Ewens vs. Wilbor, 208 111. 492. — Affecting Burden of Plaintiff: A plea of set-off, counter claim or recoupment, does not relieve plaintiff of his burden in first instance of making out a prima facie case. Eobinson vs. Parish, 62 111. 130. What Subject of Set Off: AVherever an action can be maintained in assumpsit for money had and received, on the common counts, such a demand ought to be a subject of set off. Money paid under a mistake of fact may be set-oft' by defendant in assumpsit against a debt claimed to be due plaintiff. When one person obtains money of another, which it is inequitable and unjust for him to hold, the person entitled to it may maintain an action for money had and received for its recovery. Promise may be implied, and it is intended by statute that any promise to pay money, express or implied, is proper set- off. Gary vs. Niblo, 155 App. 338; Com. Union Assn. vs. Seammon, 133 111. 627 ; Devine vs. Edwards, 101 111. 138. A joint indebtedness cannot be set off against a separate demand, nor can a separate demand be set off against a joint indebtedness. Dameier vs. Bayor, 167 111. 547. Nor unliquidated damages arising from a separate transaction. Bevier vs. Horn, 180 App. 547. It is not necessary to show a distinct agreement that the one demand shall be applied in liquidation or in set-off of the other, in order to establish a mutual credit between parties. It is sufficient to show that credit was given under circumstances warranting 1178 SET-OFF AND COUNTER CLAIM conclusion tliat parties acted upon understanding that such appli- cation was to be made. Ealeigli vs. Kalcigh, 35 111. 512. Sufficiency of Evidence: Preponderance of evidence is all that is required to establish defense of set-off or recoupment. Laird vs. Warren, 92 ill. 204; Bonuell vs. Wilder, 67 111. 327; Choc- olate Co. vs. Crocker Co., 125 App. 241; Leathe vs. Thomas, 109 App. 434. Recoupment is in the nature of a cross action. In order to sustain such defense, defendant is subject to same requirements in respect to evidence to which he would have been subject had he brought a distinct action against plaintiff to recover for the same matter. Harber Bros. vs. Moffat Cycle Co., 151 111. 84; Winship vs. Wine- man, 77 App. 161; Hedstrom vs. Baker, 13 App. 104; Mendel vs. Fink, 8 App. 378. Defendant must sustain his plea of set off, when interposed, by a preponderance of the evidence, before he can recover under it. Laird vs. Warren, 92 111. 204; Osgood vs. Groseclose, 159 111. 511; Mendel vs. Fink, 8 Aj^p. 378; Hedstrom vs. Baker, 13 App. 104. But any evidence, no matter by whom introduced, tending to make for the defendant, would be evidence for him, and by which he would have a right to sustain that part of his defense to which it. is pertinent. He is not limited to proofs which he introduces, but may have the benefit of evidence which makes in his favor, although introduced by the plaintiff. Laird vs. Warren, 92 111. 204; Boudinot vs. Winter, 190 111. 394. Defendant must prove that he is not in default ; that he has per- formed the essential requirements of the contract or w^as ready and willing to do so. Purcell Co. vs. Sage, 200 111. 342. Affirmative Judgment: A set-oft' or counterclaim can be pleaded where there is an in- debtedness from plaintiff to defendant which might be made the subject of an independent suit. Set-off usually arises out of a transaction extrinsic to plaintift"s cause of action, and which, if allowed, may exceed the allowable claim of plaintiff. In recoup- ment, the demand sued for and that recouped must arise out of the same transaction. And in action at law, while defendant may recoup unliquidated damages arising out of same transaction to the extent of the plaintiff' 's claim, he cannot have an affirmative judgment for any excess of damages. Bostrom vs. Becker, 172 App. 410. Special damages cannot be recovered or recouped unless they are specially set forth in appropriate pleas. Koch vs. Merk, 48 App. 26. After assignment of a contract and notice of such assignment to the other party, such other party has no right to purchase claims against assignor of such contract and interpose them as against the assignee. Felthousen vs. Lanward Pub. Co., 159 App. 416. In an action commenced before a justice of the peace, a set-off SIDEWALKS 1179 cannot be interposed if the amount claimed by reason thereof is in excess of the jurisdiction of the justice. Turginson vs. Meyer, 155 App. 553. SETTLEMENT See Compromise and Settlement, Payment. SIDEWALKS NOTICE OF MUNICIPALITY AS TO CONDITION: Actual : — Officer: The evidence must show that notice of the defective condition was brought to an officer or agent of the city charged with a duty respecting it, in order to constitute actual notice to city. Lifschitz vs. City of Chicago, 150 App. 201. — -Notice to Policeman: Notice to a policeman is notice to the city, where policemen have for several years been charged with duty of reporting defects in sidewalks, by writing in a book kept for that purpose, with the knowledge of the superintendent of the streets, who resorted to such reports for information. City of Joliet vs. Looney, 159 111. 471. Courts take notice that the affairs of a large city are admin- istered through different departments whose spheres of duty are entirely independent of each other; and to charge the officers in charge of streets and sidewalks with notice of everything concern- ing their condition that may come to the attention of a police officer, without, at least, showing in the first instance, or offering to show later, as a condition of the admission of the evidence, that the police officer was charged with a duty in such respect, w^ould lead to great abuse, and would open up numerous collateral issues that ought not be allowed to creep into the case on trial. Reid vs. City of Chicago, 83 App. 554; City of Chicago vs. Davies, 100 App. 427: XIII 111. Notes 886, §1018. — ■ Other Officers-: Notice to a city treasurer, police magistrate or other municipal officer, whose duties in no way relate to the care of streets, is not notice to city so as to charge it with lia- bility. City of Savannah vs. Trusty, 98 App. 277. — Admissions of Officers: The statements, after an accident, of a trustee of the village, who was chairman of the street com- mittee at the time, and as such had the condition of the streets especially in charge, is competent as tending to show thai he and the village authorities generally knew before the injury occurred that the street was defective. Mount Morris vs. Kanode, 98 App. 373. — Private Night Watchman: Notice to private night watchman is not to city officer by whom actual notice may be shown. But such witness is not incompetent to testify to facts and circumstances tending to show constructive notice to city. City of Ottawa vs. Hayne, 214 111. 45. 1180 SIDEAVALKS — Ordinance : An ordinance making it the duty of certain offi- cials to keep the streets and sidewalks in good condition is admis- sible, the purpose of the evidence being to show that complaints of defective condition of the walk w^ere made to the proper parties. City of Gibsou vs. Murray, 216 111. 589. Constructive : Lajjse of Time: Actual notice is not the only test of the liabilitv of a city, as it is chargeable with constructive notice if the sidewalk has been out of repair so long that the city, through its proper officers, in exercise of reasonable diligence, could have discovered the defects. ^.„ ^4. City of Joliet vs. Johnson, 177 111. 178; City of Chicago vs. Gillett, 108 App. 455; XIII 111. Notes 886, §1025. Proof of the length of time a sidewalk has been continuously out of repair immediately prior to plaintiff's injury therefrom, is competent on question of notice, where the city is denying that the walk was out of repair, or that it had notice that it was. City of Elgin vs. Nofs, 200 111. 252; City of Chicago vs. Dalle, llo 111. 386; Goodsall vs. City of Joliet, 150 App. 519. Such evidence is not confined to the exact place of accident, but^ is competent where at or near the place. City of Elgin vs. Nofs, 200 111. 252 ; City of Taylorville vs. Stafford, 196 111. 288. And within a reasonable time before and after the accident. City of Chicago vs. Jarvis, 226 111. 615; City of Bloomington vs. Osterle, 139 111. 120; City of Chicago vs. Dalle, 115 111. 386; City of Chicago vs. Stearns, 105 111. 554. Other Accidents: Proof that numerous other persons had previously stumbled and fallen at the same place is competent, not for the purpose of showing independent acts of negligence, but as tending to show that the common cause of the accident was a dangerous and unsafe thing, and the frequency of such accidents also tends to raise presumption of knowledge. City of Chicago vs. Jarvis, 226 111. 014; City of Taylorville vs. Stafford, 196 111. 288; City of Bloomington vs. Legg, 151 111. 9; Brodie vs. City of Lewistown, 164 App. 335. Evidence of subsequent accident is inadmissible. City of Chicago vs. Vesey, 105 App. 191. — Ordinance: An ordinance requiring property owners to re- pair a sidewalk, passed some months prior to time plaintiff was injured on such walk, is admissible in order to show notice. City of Beardstown vs. Clark, 204 111. 524. — Resolution: Is admissible. City of Aurora vs. Pennington, 92 111. 564. Ordinances making it the duty of policemen to endeavor to re- move obstructions from sidewalks, or report same to department of public works, is admissible on question of notice, unless same is not controverted. Bibbins vs. City of Chicago, 193 111. 359. Such evidence tends, in some degree, at least, to show that city authorities knew, before happening of accident, that sidewalk, at point in controversy, needed repairs. City of Bloomington vs. Pennington, 92 111. 564. Dangerous Condition: — Opinions of Witnesses: Opinion of person not shown to be SIGNATURES 1181 expert, as to whether side walk was safe or dangerous, inadmissible. Village of Fairbury vs. Eogers, 98 111. 554. Opinion as to whether sidewalk was in condition for people to walk over, incompetent. City of Mt. Vernon vs. Brooks, 39 App. 426. Statement by witness that walk was "in poor condition," is not prejudicial where he afterwards gives reason. City of Joliet vs. Johnson, 177 111. 178. Question whether a sidewalk made of rough planks, laid on stringers, is properly constructed is not a question for expert altogether, only to be put to and answered by one who has a repu- tation for skill in such work and in the handling of tools and quality and adaptation of materials. Any man of common sense and ordinary observation and experience can pronounce as satis- factorily upon such a question as the most aci?omplislied mechanic, and it is error to exclude such testimony from the jury. Alexander vs. Mt. Sterling, 71 111. 366. DEFENSES : Construction By Other Cities: It is incompetent for defendant to give evidence of the manner in which other cities and towTis of similar size and character in the immediate section of the country constructed their sidewalks. City of Champaign vs. Patterson, 50 111. 61. Number of Miles of Sidewalk : Immaterial. City of Chicago vs. Elzeman, 71 111. 131. NOTICE OF INJURY: Giving of notice must be averred and proved. Ouimette vs. City of Chicago, 242 111. 501; Walters vs. City of Ot- tawa, 240 111. *259. Notice is required, though action by employe of city. Condon vs. City of Chicago, 249 111. 596. Notice is not required in action by administrator under statute. Prouty vs. City of Chicago, 250 "ill. 222. General issue requires proof of notice. Condon vs. City of Chicago, 249 111. 596. Notice must give hour of accident. Ouimette vs. City of Chicago, 242 111. 501 ; Zyciuski vs. City of Chi- cago, 163 App. 413. SIGNATURES See Handwriting, Forgery, Photographs, Denial of Execu- tion. Subscribing Witness, Seals. Knowledge : AVhere the signature to a written instrument is proven to be genuine, the instrument affords prima facie evidence that its con- tents w^ere known to the subscriber and that it was his act, and the burden of overcoming such prima facie showing is upon those who assert the contrary. Jones vs. Abbot, 235 111. 220; Todd vs. Todd, 221 HI. 410; Compher vs Browning, 219 111. 429; Sheer vs. Sheer, 159 111. 591; Hartford Ins. Co. vs. Gray, 80 111. 28 ; XII 111. Notes 478, § 36. 1182 SIMILAR FACTS AND TRANSACTIONS And there is no distinction in this respect between those who can and tliose who cannot write. Doran vs. Mullen, 78 111. 342. Sufficiency: In general, where a signature is required, party's name printed on the instrument with his sanction will suffice. Morrison vs. People, 196 111. 454. Or written at his dictation. Morton vs. Murray, 176 111. 54; Elston vs. Montgomery, 243 111. 348. SILENCE See Confessions, Admissions and Declarations. SIMILAR FACTS AND TRANSACTIONS See Separate and Similar Offenses, Habits, Intent, Animals, Accident, Sidewalks, Fires, Eminent Domain. Similar Accidents: — In General: Proof of similar accidents is admissihle where arising from same physical defect, but not where accident results from conduct of particular individual. Sladler vs. Chi. City Ey. Co., 180 App. 313; XII 111. Notes 486, § 87. Evidence of similar accidents from same cause, though of slight probative force, is sometimes admitted as tending to show the dan- gerous character of machine. The better rule allows such evi- dence on question of master's knowledge of condition of appliance, and for that purpose only. Similar accidents would create a pre- sumption of knowledge. Strong vs. Armour, 154 App. 649. Such evidence is admissible, not for purpose of showing inde- pendent acts of negligence, but as tending to show the common cause of these accidents as a dangerous and unsafe thing. Lowe vs. Alton Baking Co., 158 App. 458. To render evidence of a similar accident, resulting from same cause, competent, it must appear that the instrument or agency causing the injury was in substantially the same condition at time of such other accidents as at time of accident complained of. City of Bloomiugton vs. Legg, 151 111. 9; City of Aurora vs. Plum- liier, 122 App. 143; Vance vs. Monroe Co., 149 App. 499. — Action Against City: Proof that numerous other persons than plaintiff had been injured on account of same defect in sidewalk, is admissible as tending to show dangerous condition, and also as tending to raise presumption of knowledge, on part of city, of such condition. City of Chicago vs. Jarvis. 226 111. 614; City of Taylorville vs. Stafford, 196 111. 288; City of Bloomington vs. Legg, 151 111. 9; City of Chicago vs. Powers, 42 111. 169; XIII 111. Notes 895, § 1090. Evi Lyconiiug Ins. Co. vs. Rubin, 79 111. 402; L. B. & M. Ry. Co. vs. Winslow, 66 111. 219; Foster vs. Shepherd, 258 111. 164. "Where, over objection, incompetent evidence has been received, in a jury trial, it must appear that the verdict rendered was not affected by it or the judgment will be reversed, even though it was afterAvards stricken out, as such testimony may influence the jury, notwithstanding the efforts of the court to counteract it." Chi. City Ry. Co. vs. "White, 110 App. 23; Tumalty vs. Parker, 100 App. 382; Chi. IT. Trac. Co. vs. Arnold, 131 App. 599; Adams vs. Rnssell, 85 111. 284; Crty of Chicago vs. Brenuan, 61 App. 247; Rollins vs. Duffy, 18 App. 398. Error in admitting incompetent evidence is not cured by its subsequent striking out, where it is apparent counsel knew it would have to be stricken out, but secured its admission for the evident impression it -would make on the minds of the jurors even though it should be immediately stricken out. Foster vs. Shepherd, 258 111. 164. — Instruction Alone: If it is apparent a verdict could not SUBSCRIPTION 1211 have been returned unless the jury had considered improper ele- ments of damage, the error is not cured by instruction. I. C. R. E. Co. vs. Trustees of Schools, 1212 111. 40(5. — When Harmless: Where in view of all instructions, it does not appear that the evidence, improperly admitted, in any way affected the party. Henrietta Coal Co. vs. Martin, 221 111. 460; Ledwell vs. Chi. City Ey. Co., 160 App. 596. "Where the court refused to strike out the answer of a witness because no objection was made to the question, but the answer was afterwards stricken out by consent of counsel conducting the examination, it was held that the party moving to strike out the answ^er had no legal ground of complaint. Weber Wagon Co. vs. Kehl, 139 111. 644. "Wliere from whole evidence evil mentioned was reasonably cer- tain to appear. Chicago vs. Jarvis, 226 111. 615, Where evidence tending to increase the measure of damages is improperly admitted, luit the court, in instructing the jury, directs them in assessing the damages, not to allow anything for the kind of damages referred to in the evidence improperly admitted, and instructs them as to the proper measure of damages in the case, the error is harmless, unless it appears from the verdict that the jury were misled bv the admission of such evidence. 111. Steel Co. vs. Ostrowski, 93 App. 57; Affirmed, 194 111. 376. Review : An improper and unresponsive answer to a proper question will not be reviewed unless a ruling of the trial court is taken upon motion to strike out or withdraw such answer. Natl. Syrup Co. vs. Carlson, 155 111. 210; City of Chicago vs. Didier, 131 App. 406. SUBSCRIBING WITNESS See Wills, Privileged Communications, Impeachment. Execution of Instrument: In action on instrument signed by mark, the witness need not be produced. Execution may be proved by secondary evidence. Snyder vs. Travers. 45 App. 253; XII 111. Notes 511, §290. Prior to statute, if subscribing witness was without state, execu- tion might be proven from handwriting of subscribing witnesses. Hartford Ins. Co. vs. Gray, 80 111. 28; Newsoni vs. Luster, 13 111. 176; Wiley vs. Bean, 6 HI. 302, SUBSCRIPTION WRITING AS EVIDENCE OF PROMISE: A subscription paper is evidence to all who see it, that the per- sons whose names appear upon it as subscribers have promised to pay the amount set opposite their respective names. McClure vs. Williams, 43 111. 356. ,i 1212 SUICIDE BURDEN OF PROOF: In au action on a subscription conditioned upon a certain amount being subscribed, it is incumbent on plaintiff to show affirmativelj^ that the amount named has been subscribed before suit. Without such proof, he cannot recover. G. & S. W. E. R. Co. vs. Ennor, 116 111. 55. DENIAL OF EXECUTION: Must be put in issue by sworn plea. Williard vs. Trustees, 66 111. 55. ADMISSIBILITY OF PAROL EVIDENCE: Stock Subscriptions: — In, General: Parol evidence is incompetent to show that stock subscriptions, on their face unconditional, were, in fact, condi- tional. Corwith vs. Culver, 69 111. 502; Merriek vs. Consumers Heat Co., Ill App. 153. Nor to show contemporaneous secret agreement between sub- scriber and corporation. Stone vs. Vandalia Coal Co., 59 App. 536; Lyon vs. Worchester, 49 App. 639. Representations not fraudulently made are inadmissible to vary written subscription. Hays vs. O. O. & F. R. R. Co., 61 111. 422 ; Dill vs. Wabash Valley R. R. Co., 21 111. 90; XII 111. Notes 516, § 330. — Delivery: Parol evidence is admissible to show that written agreement was to take effect on conditions. Such proof is not admitted for the purpose of changing terms, but for the purpose of determining whether contract had legal existence. Great West Tel. Co. vs. Lowenthal, 154 111. 261 ; 0. O. & F. R. R. Co. vs. Hall, 1 App. 612. Book Subscription : Evidence offered to show that the book was not prepared in accordance wdth certain representations of the person who took the subscription is inadmissible as being an attempt to vary the terms of the written instrument by parol. Williams vs. Gottschalk, 231 111. 175. Church Subscriptions: An unconditional subscription for the erection of a church can- not be varied by parol proof of a representation that the building would be erected upon a certain site. Howell vs. Trustees of M. E. Church, 61 App. 121. SUBSTITUTED SERVICE See Service. SUICIDE See Experiments, Sanity and Insanity. Defined : The word "suicide" means voluntary, intentional self-destruc- tion, and not self-destruction by one who at the time is incapable, by reason of unsoundness of mind, of resisting an insane impulse SUICIDE 1213 to take his own life or to understand the general nature or con- sequences and effect of his act. Supreme Council Eoyal Arcauum vs. Pels, 209 111. 3S. Presumptions : In tlie absence of proof of cause of death, natural or accidental causes will be presumed. Kuights Templar vs. Crayton, 209 111. 550; F. & C. Ins. Co. vs. Weise, 182 111. 496; Amer. Home Circle vs. Schneider, 134 App. 601; XII 111. Notes 55, § 11. The presumption of the law is that all men are sane and pos- sessed of the love of life; are animated by the instincts of self- preservation and the natural desire to avoid personal injuries and death. This presumption, in the absence of countervailing proof, may be sufficient within itself to establish prima facie that death occurred otherwise than by self-destruction, and to cast upon the defendant company the burden of producing evidence on the point. Wilkinson vs. Aetna Ins. Co., 240 111. 205. Where the evidence shows that the assured has suffered an injury which caused his death, and there is no proof from which it can be determined whether the injury was accidental or self-inflicted, the presumption is that the injury was accidental. Wilkinson vs. Aetna Ins. Co., 240 111. 205. Burden of Proof: — -Benefit Society: A benefit society has the burden of showing that the deceased committed suicide, where such defense is relied upon, notwithstanding the proofs of death tend to show that fact, and in the absence of such proof, death by natural or accidental causes may be presumed. Knights Templar vs. Crayton, 209 111. 550 ; Supreme Lodge K. O. T. M. vs. Stensland, 206 111. 124; Kumbold vs. Eoyal League, 206 111. 513; XII 111. Notes 1203, § 881. Infants are not bound by admissions. Knights Templar vs. Crayton, 209 111. 550. But where certificate stipulates association will not pay benefits where member commits suicide, whether sane or insane, except it be committed in delirium, or while member is under treatment for insanity, beneficiary must prove by a preponderance of the evi- dence that the act came within the exception. Supreme Court of Honor vs. Peacock, 91 App. 632. A clause exonerating society from liability unless beneficiary prove affirmatively that member had been judicially declared in- sane, or was under treatment, merely relieves beneficiary from proving degree of insanity in case he proves any of the facts spec- ified. Supreme Lodge Eoyal Arcanum vs. Pels, 209 111. 33. — Accident Policy: The burden resting upon plaintiff in action upon accident policy to establish, by a preponderance of the wliole evidence, that assured met an accidental death, is not shifted to defendant company by pleas raising the defense of a stipulation in the policy that if deceased committed suicide while insane only premiums should be recovered, so as to require the defense to be proven by preponderance of the evidence. Wilkinson vs. Aetna Ins. Co., 240 111. 205 ; F. & C. Ins. Co. vs. Weise, 182 111. 496. 1214 SUNDAY Weight and Sufficiency: Defense of suicide upon an insurance policy need only be estab- lished by a preponderance of the evidence. William vs. Court of Honor, 120 App. 263 j Aff., Williams vs. Court of Honor, 221 111. 152. Admissibility of Evidence : — Habits and Temperament: Proof of the habits and temper- ament of the insured is competent on the question whether the injuries received by him Avere accidental or intentionally self-in- flicted ; and if defendant files a plea presenting the defense of sui- cide, proof of such habits and temperament is admissible as evi- dence in chief. Wilkinson vs. Aetna Ins. Co., 240 111. 205. — Written Statement Found o)i Body: A written statement found on the body of deceased, addressed to "father, mother and sister," unsigned, but written upon a page of a book found on the person of deceased, and making disposition of effects, indicating his desire as to funeral services, is proper to be admitted in evi- dence as tending to show that he came to his death by his own act. Welrl vs. Mutual Life Ins. Co., 61 App. 187. Inducing- Another to Commit : Proof that accused induced another person to commit suicide by taking poison is sufficient to warrant his conviction for murder, but in such cast strict proof that the poison was taken by his procurement is required. Burnett vs. People, 204 111. 208. The survivor of an attempted double suicide cannot be convicted of murder in absence of evidence that he actually killed deceased or that he did or said something which aided or encouraged her to kill herself. Burnett vs. People, 204 111. 208. Homicide : On the trial of a wife and her paramour for the murder of her husband by administering poison to him, declaration of deceased, made at different times within the j^ear liefore his death, and prior to his last sickness, that he intended to take his own life, not accompanied by any act of deceased which they might explain, being merely hearsay, are inadmissible on the part of the defense. Sell)ert vs. People, 143 111. 571. Circumstance Tending to Prove Guilt : Fact that accused attempted suicide while in jail may be proven. People vs. Duncan, 261 111. 339. SUNDAY See Judicial Notice. SURETYSHIP See Principal and Surety. SURVEYS, FIELD NOTES AND MONUMENTS See Boundaries, Plats. SURVEYS, FIELD NOTES AND MONUMENTS 1215 SURVEYOR'S RECORD: Admissibility : Certilicate of county surveyor is not evidence; a copy of his record of a survey is prima facie evidence. Kylo vs. Town of l^oyau, 87 ill. 04; XJL 111. Notes 509, § 272. And may be made by iiis successor. Waterman vs. Eaymond, 34 111. 42. Prior Survey: A survey recorded as the true survey of certain commons, made four days before making of recorded plat the purpose of which is to designate the "limits and position" of such commons, is admis- sible in ejectment to explain meaning of platted lines appearing upon certified copies of plat already in evidence. Wiggins Terry Co. vs. L. E. & St. L. Ry. Co., 178 111. 473; England vs. Vanderniark, 147 111. 76. Weight and Sufficiency: The survey and plat of a public road made and returned by the highway commissioners when they located it, is legitimate evidence as to location of road, but is not conclusive as to where the place or precise line may be found, but is open to correction by parol evidence. Hiner vs. People, 34 111. 397; Town of Lovington vs. Adkins, 232 111. 510. But survey of boundary established in conformity wdth well recognized method of surveying irregular section and recognized by adjoining OAvners cannot be questioned collaterally. Blooniington Cem. Assn. vs. People, 139 111. 1(5. FIELD NOTES: Presumption : The held notes and plat of survey of public lands are presumed to be correct until contrary is shown. Town of Kane vs. Farrelly, 192 111. 521. Authentication : — In General: Field notes are not admissible without authen- tication. Owens vs. Crossett, 105 Til. 354. — Field Notes Certified hij Town Clerk: A document certified by the town clerk to be a copy from an original plat and field notes of a re-survey of a road made and certified by a county surveyor, and filed in town clerk's office, before the act of 1861, is not com- petent evidence to establish the location of a public road. Nor are the original notes of any but a county surveyor admissible in evi- dence in such case. But a copy from the books of the county sur- veyor is made so by statute. Gray vs. Waterman, 40 111. 522, — Sn.rvey From Field Notes Not Properly Certified: Two wit- nesses testified that they made a survey of the line from a copy of the original field notes, not certified by a competent authority to be a true copy. The field notes from which they ran the lines were shoAvn, in particulars affecting the correctness of the survey, to be a copy of the original field notes: Held, that the copy used by witnesses was admissible. England vs. Vandermark, 147 111. 76. 1216 SURVIVORSHIP Weight : Field notes are important evidence in ascertaining where mon- uments are located; but if the location of monuments is clearly shown by other evidence to be at a distance different from that given in the field notes and plat, the latter must give way. Ofijilvie vs. CoiJeland, 145 111. 98. MONUMENTS: Presumption as to Existence : Monuments mentioned in description of land as marking its boundaries are presumed to exist until contrary is shown. Kleiner vs. Bowen, 166 111. 537. May be Shown by Extrinsic Evidence : The location of a monument may be shown by extrinsic evidence. Village of Itasca vs. Schroeder, 182 111. 192 ; Kleiner vs. Bowen, 166 111. 537; Smiley vs. Fries, 104 111. 416; Chi. Dock Co. vs. Kinzie, 93 111. 415; XI 111. Notes 660, § 49. Weight as Evidence: Monuments placed by the original surveyor mark the true bound- aries of city lots and are the most satisfactory evidence of loca- tion of boundary lines, controlling field notes and maps of survey as well as distances, courses and quantity. Kuglin vs. Bock, 181 111. 165; City of Decatur vs. Niedermeyer, 168 111. 68 ; England vs. Vandermark, 147 111. 76 ; People vs. Stahl, 101 111. 346; Bauer vs. Gottmanhausen, 65 111. 499. SURVIVORSHIP See Death, Descent and Distribution, Heirship, Presump- tions. Burden of Proof: Where two or more persons perish in a common disaster, there is no presumption of survivorship and if survivorship is claimed it must be proven, and the party having the burden of proof must fail if the proof cannot be made. Middeke vs. Balder, 198 111. 590 ; XII 111. Notes 55, § 13. The effect of the rule is that the parties are treated as having all died at the same instant, and that no one takes anything from any of the others by reason of such others' death. Middeke vs. Balder, 198 111. 590; Affirming, 92 App. 227. SUSTAINING WITNESS See Contradiction and Sustaining Witness. SWORN COPIES See Copies, Records. TAX DEEDS See Good Faith, Tax Receipts, Taxes, Ejectment, Adverse Possession. TAX DEEDS 1217 Color of Title : A lax deed is prima facie evidence that sale was conducted in the maimer required by law, and affords presumptive proof in the first instance of the sufficiency and validity of the process upon which the sale was made, which is the basis of the tax deed, and the prima facie case made by the production of the tax deed must be overcome by proof. Tifft vs. Greene, 211 111. 389 ; Glos vs. Mulcahy, 210 111. 639 : Gage vs. Gentzel, 144 111. 450; XIV 111. Notes 770, §628. Paramount Title : A tax deed cannot be received as evidence of a paramount title unless the proceedings anterior to the execution of the tax deed required by statute, — that is, a judgment, precept, notice, etc., have been had. Glanz vs. Zlabek, 233 111. 22; Met. El. Ry. Co. vs. Eschner, 232 111. 210; Kepley vs. Scully, 185 111. 52; Anderson vs. McCormick, 129 111. 308. So one desiring to avail himself of the effect of a tax deed as evidence of title, and not color of title merely, should introduce in evidence the anterior proceedings on which same is founded. Kepley vs. Foulke, 187 111. 162. Burden of Proving Validity: it is incumbent upon complaint, in bill to remove a tax deed as cloud upon title, to allege and prove invalidity of tax deed. Langlois vs. People, 212 111. 75 ; Gage vs. Curtis, 122 111. 520. And the rule is the same where proceedings are for partition and to cancel tax deed. Glos vs. Carliu, 207 111. 192. A defendant in a burnt record proceeding who fdes a cross bill claiming title in himself by virtue of tax deeds, and asking to have certain petitioner's deed set aside as clouds upon the title, has the burden of proving the validity of his deeds. Gage vs. Parker, 178 111. 455; Kelle vs. Egan, 256 111. 45. Affidavit of Notice : The fact that no affidavit of notice can be found in the county clerk's office raises a presumption that the notice was not given, and makes it the duty of the party claiming under a tax deed to prove that the notice was actually given, — otherwise his claim lacks the statutory element of good faith, and cannot prevail against a paramount title. Dalton vs. Lucas, 63 111. 337. In proceeding to set aside a tax deed, a copy of the affidavit for notice by publication is properly admitted, wliether sufficiently certified by the county clerk or not, where deputy clerk producing same testified that he has examined the records and the copy offered in evidence and compared same, and that such copy is a true one. Gins vs. Boettcher, 193 111. 534. Parol Evidence: Parol evidence cannot be introduced to supply defects or omis- sions in the affidavit. If the affidavit does not contain the specified facts, the deed is unauthorized and nugatory regardless of what the real facts may be or what may be proven. Esker vs. Heffernian, 159 111. 38; Perry vs. Bowman, 151 111. 25; Gage vs. Mayer, 117 111. 632. Ev.-^77 1218 TAXES And where a party, on application for tax deed, files his affidavit showing that a certain person is owner of the land, he will be estopped from denying such person was owner of the land at time of making the affidavit. Towle vs. Quante, 246 111. 568; Hughes vs. Carnes, 135 111. 519. So if a tax deed fails to show land was sold for taxes of a par- ticular year, it cannot be explained by parol testimony. Maxcy vs. Clabaugh, 6 III. 26. TAXES See Tax Receipts, Tax Deeds. VALIDITY AND COLLECTION OP TAXES: Presumptions and Burden of Proof: — Assessment: Presumption is that the assessment was legally made. People vs. I. C. E. R. Co., 252 111. 262; Monticello Sem. vs. Board of Eeview, 242 111. 477; In re Maplewood Coal Co., 213 111. 283; XIV 111. Notes 756, § 489. Presumption is that all officers who have had any connection with it have properly discharged their duties. People vs. A. T. & S. F'. Ey. Co., 261 111. 33. — Lawful Purpose: The presumption is that a tax was levied for a lawful purpose. People vs. Guzenhauser, 237 111. 262. — Justness: The presumption is that the tax is just, and that all officers having any connection with it have properly discharged their duties. These presumptions can only be overcome by clear and explicit testimony. Tolman vs. Eaymond, 202 111. 197; People vs. Keener, 194 111. 16; P. D. & E. Ey. Co. vs. People, 116 111. 401 ; People vs. A. T. & S. F. Ey. Co., 261 111. 33. — Municipal Organization: In proceeding to collect tax levied by a village having a proper certificate of organization, proof that such village included within its limits the territory of a prior municipal corporation is incompetent, as constituting collateral attack upon organization of such village. People vs. Pederson, 220 111. 554. — Municipal Bonds: Those objecting to judgment in county court against lands, for tax levied to pay town bonds, are re- quired to prove their allegation that the election for the issuance of the bonds was held without sufficient call and notice. Hutchinson vs. Self, 153 111. 542. — Overvaluation l)y Assessor: The mere fact of over-valuation of property in assessing it for taxation will not, of itself, estab- lish fraud on part of assessor. People vs. Odin Coal Co., 238 111. 279; Barkley vs. Dale, 213 111. 614; Spring Valley Coal Co. vs. People, 157 111. 543; Burton Stock Car Co. vs. Traeger, 187 111. 9 ; Keokuk Bridge Co. vs. People, 161 111. 514 ; Keokuk Bridge Co. vs. People, 145 111. 596. Where valuation is so grossly unreasonable as to show assessor could not have been honest in his valuation it is accepted as evi- dence of fraud. State Board vs. People, 191 111. 528; Sanitary Dist. vs. Gifford, 257 111. 424. TAXES 1219 — Undervaluation : Mere undervaluation, unless glaring or gross, is not in itself evidence of fraud. First Nat. Bank vs. Holmes, 246 111. 362; Barkley vs. Dale, 213 lU. 614. — Exemptions: The burden is upon one who asserts that prop- erty is exempt. Monticello Sem. vs. Board of Review, 242 111. 477; I. C. R. R. Co. vs. People, 119 111. 137. Proof that notes and mortgages assessed in the name of a cer- tain person as trustee are the property of an institution of learn- ing, is not sufficient to show that they are exempt from taxation, but it must also be shown that they are not being used with view to profit. Monticello Sem. vs. Board of Review, 242 111. 477. — In Action of Debt: In action of debt to recover taxes, costs and penalties due on property which has been forfeited to the state for want of bidders, at a tax sale, a prima facie case is made by introducing in evidence a certified copy of the tax judgment, sale, redemption and forfeiture record, together with the proof that the defendants were owners of the property in the years for which the unpaid taxes were levied. Carrinf^ton vs. People, 195 111. 484. In action of debt for taxes, the collector's warrant, together with the tax judgment, sale, forfeiture and redemption record, are prima facie evidence of the assessment and levy of the taxes, the years for which they were assessed and levied, and that the taxes were due and unpaid, and the lands forfeited to the state. If it is established that the lands were forfeited to the state, it will be presumed that there was an offer of the property for sale and failure to sell for want of bidders. Elmwood Cem. Co. vs. People, 204 111. 468. It is indispensable to the right of the people to recover in action of debt for general taxes on lots forfeited to the state for taxes for the years 1895, 1896, 1897, 1898, 1899, that it be proven that defendant was the owner of such lots on the first day of April, 1899, and on the first day of Mav in the other years. Coombs vs. People, 198 111. 586. In action for debt for general taxes under section 230 of the Revenue act, certified copies of the collector's warrants, and the tax judgment, sale, redemption and forfeiture record, showing that the property was assessed to the defendant for the years in question, make a prima facie case of ownership in the defendant. Harding vs. People, 202 111. 122. State may show, in action of debt for taxes, that defendant is owner of real estate in question, although assessed in name of an- other party. Coombs vs. People, 198 111. 586. In action for personal taxes, if the county collector's return is not in evidence, the liability may be shown by proving the assessment, extension of the taxes and their non-payment ; but the return of the town collector coupled with the testimony of a clerk in the county treasurer's office that books showed tlie taxes to be unpaid, is not sufficient to sustain a judgment. Carney vs. People, 210 111. 434. 1220 TAXES — Application for Judgment and Sale: In proceeding for judg- ment and order of sale for delinquent taxes, proof of the sworn re- poi-t of the list of delinquent taxes, together with proof of the publi- cation thereof and notice of the application, makes a prima facie case authorizing a judgment against the property without further proof. People vs. C. I. & St. L. Ry. Co., 243 111. 221. Upon application for judgment against delinquent lands, it is not error to admit parol evidence of facts relating to the publica- tiou of the delinquent list. •■'""' McChesney vs. People, 178 111. 542. '"*^ On application for judgment of sale against real estate for delinquent personal property tax for the preceding year, the bur- den of disproving the collector's prima facie case, by showing that the objector was not a resident within the jurisdiction of the as- sessor and had no personal property there subject to taxation at the time such tax was assessed is upon the objector. King vs. People, 193 111. 530. The burden of proving an appropriation ordinance invalid because it purports to be for the fiscal year subsequent to the one in which it is passed, is upon objector, and if he fails to introduce such ordinance in evidence, relying upoji proofs as to its sub- stance, and the levy ordinance, which was in evidence, recites that the appropriation was for the "current" fiscal year, the objection is not sustained by the proof. People vs. C." B. & Q. Ry. Co., 189 111. 397. PAYMENT UNDER COLOR OF TITLE: Burden of Proof: To constitute a bar, payment of taxes by or on behalf of party having color of title for seven successive years, is indispensable. It is not enough that the taxes have actually been paid for that period. The proof must show they have been paid by or on be- half of person having color of title and actual possession, and bur- den is on party claiming under such title to prove payment by clear and satisfactory evidence. Manternaeht vs. Studt, 230 111. 356; White vs. Harris, 206 111. 584; Bell vs. Neiderer, 169 111. 54; Timmons vs. Kidwell, 138 111. 13; XI 111. Notes 80, § 177. If a party relies upon seven years Limitation act, and the pay- ment of taxes under color of title, he must show affirmatively that he paid the taxes for the ref[uisite number of years. The law will not presume payment of them liy him. Irwin vs. Miller, 23 111. 401; Timmons vs. Kidwell, 138 111. 13; Jayne vs. Gregg, 42 111. 413. Degree of Proof: Where payment of taxes under color of title is relied upon to sustain adverse possession, proof thereunder must be clear and convincing. Manternaeh vs. Studt, 230 111. 356; Travers vs. MeElvain, 181 111. 382; Burns vs. Edwards, 163 111. MeCauley vs. Malion, 174 111. 384; HuYlbut vs. Bradford, 109 111. 397; Hardin vs. Gouveneur, 69 111. 140. TAXES 1221 Parol Competent: Payment of taxes may be proven by parol. Ellstou vs. Keuuicott, 52 111. 272; Kawson vs. Fox, 65 111. 200; Milliken vs. Marlin, 66 111. 13; Irwin vs. Miller, 23 111. 401; Gage vs. Hamp- ton, 127 111. 87. Proof of payment of taxes may be made otherwise than by pror duction of receipts. The payment of taxes, like the payment of money in discharge of a debt, may be proved by parol evidence, although receipts may be given. Hinehman vs. Whetstone, 23 111. 108. Continuity: Payment of taxes under the seven years statute of limitations is not shown where there is no tax receipt in evidence for one of the 3^ears during the period relied upon where such payments are sought to be proven solely by receipts. Miller vs. Eich, 204 111. 444. Color of Title must Concur : The first payment of taxes is the payment from the time of which limitation begins to run, and must be made after the acqui- sition of the claim and color of title, and the taxes must be paid by the claimant for a period of seven successive years. The payment of taxes and color of title must concur. White vs. Harris, 206 111. 584; Blair vs. Johnson, 215 111. 552; Mc- Caiiley vs. Mahon, 174 111. 384; Stearns vs. Gittings, 23 111. 387. Without Possession : If the holder of color of title to vacant land fails to unite pos- session with such color, the fact he pays the taxes before the true owner takes possession is of no avail. Stalford vs. Goldriiig, 197 111. 156. By Mortgagor's Grantee: oO Establishes no right. Alsup vs. Stewart, 194 111. 595. ' Act of Ownership: Proof of payment of taxes under color of title must be clear and convincing, as such jDayment, when established, operates to defeat the paramount title or any other title relied upon. MeCauley vs. Mahon, 174 111. 384. Not Confined to Disputed Tract : Where a person has gone into possession of land under color of title, proof of acts of ownership need not be confined to acts on disputed tract. Fislier vs. Benehof, 121 111. 426. Mesne Conveyances: Plaintiff in ejectment who relies upon proof of payment of taxes while in possession under color of title acquired by another party, cannot recover without proof of the mesne conveyances through which he claims connection with such color. Scott vs. Bassett, 174 111. 390. Special Assessments Not Presumed: Where plaintiff proved he had paid all state, county, city, town, school, park and corporation taxes, it will be presumed, in absence of evidence to contrary, that no other tax or assessment was im- posed upon the property, and hence, that he had paid all taxes assessed on the property. It will not be presumed, in absence of 1222 TAXES evidence to contrary, that property has been specially assessed, — the presumption is the other way. It devolves upon the defendant to show that such is the case, that the property has been specially &SSGSSGQ City of Chicago vs. Middlebrook, 143 111. 265. Receipts : Payment of taxes for seven successive years is not established where part of the tax receipts relied upon contain descriptions too uncertain to identify the payments as having been made upon the particular property in dispute, and there is no oral evidence connecting them therewith. r,.,,. . ...> -i Bell vs. Neiderer, 169 111. 54; XI 111. Notes 80, § 1§6. Tax receipts are not sufficient to establish a claim of ownership or to show an exercise of dominion in lands, w^here the descrip- tion contained therein does not correspond with the description of the land. Harms vs. Kranz, 167 111. 421. But where it is positively sworn by a person that he paid all the taxes on a tract of land for seven successive years, and that at the time he had no claim to any other land in the locality, it can make no difference that some of the tax receipts given in evidence do not accurately describe the land. Park Commissioners vs. Coleman, 108 111. 591. Where the evidence shows that all the taxes on the land stand- ing in the name of a party, were paid by him, this will be suffi- cient, even though the description in some of the tax receipts and in the assessment may not be strictly accurate. Sholl vs. German Coal Co., 139 111. 21. Collector's Books: The word "paid" on a collector's book, opposite the tract of land, affords no evidence that the taxes were paid by the person in whose name it was listed. Irwin vs. Miller, 23 111. 401. To prove the payment of taxes on a tract of land for the year 1873, a book in the custody of the county clerk, entitled "Collec- tor's book for the town for the year of 1873," was offered in evi- dence. This book showed that the east eighty acres of the quarter section was assessed to A. J. Merrin. Under the head ' ' when and by whom paid," were the words, "Dec. 6, A. J. Merrin." As to the other eighty acres, the book showed that the same was assessed to Richard Merrin, and paid by him Dec. 13. The collector failed to make a return in the book. Held, that the entries in the col- lector's book were competent evidence to prove payment of taxes for the year 1873, and that the misspelling of the tax payer's name did not affect their admissibilitv. Taylor vs. Lawrence, 148 111. 388. Proof of loss of tax receipts will authorize parol evidence of their contents, but will not authorize the introduction of the col- ' lector's book to prove by the word "paid," entered on them, the contents of the lost recept. Irwin vs. Miller, 23 111. 401. Where tax receipts relied upon are defective, in not showing by exact description the land on which the taxes were paid, the col- TAX RECEIPTS 1223 lector's books ai-e properly admitted to show what land was assessed against the chuniant for the year in question. Receipts may also be supplemented or contradicted by parol. Stumpf vs. Osterha^e, 111 111. 82. An entry in a tax collector's book, showing who had paid the taxes on a certain tract of land in a certain year, is admissible to explain a discrepancy in the tax receipt which misstated the number of the township in describing the land. Catlin Coal Co. vs. Lloyd, 176 111. 275. TAX RECEIPTS See Payment. Judicial Notice : The courts will take judicial notice, without proof, of the initials usually used in description of land in tax receipts. Paris vs. Lewis, 85 111. 597 ; McChesney vs. City of Chicago, 173 111. 75; Hull vs. Croft, 132 App. 509. Before their admission in evidence, proof of the execution of tax receipts by the officer is not required. Proof of execution of an official instrument is not always necessary. As a general rule, courts take judicial notice of the public officers, and in some cases of their signatures, within their respective jurisdictions. Wolcott vs. Gibbs, 97 111. 118. Receipts are admissible, and prima facie evidence that the taxes were paid by the parties therein named. Bacon vs. P. E. E. Co., 162 App. 162. Parol Evidence to Explain : — To Identifij Land: Parol evidence as to the land on which taxes were, in fact, paid, is admissible to supplement or contra- dict the evidence of written receipts for taxes. Neiderer vs. Bell, 174 111. 325; Stumpf vs. Osterhage, 111 111. 82; Sholl vs. German Coal Co., 139 111. 21 ; Winslow vs. Cooper, 104 111. 235; Hardin vs. Gouveneur, 69 111. 140; Elston vs. Kennicott, 52 111. 272; XI 111. Notes 80, § 181. — To Identify Payor: Upon the question on whose account and for whom payment of taxes has been made, the tax receipts there- for are not conclusive. Like other receipts, they are susceptible of explanation. Band vs. Schofield, 43 111. 167 ; Paris vs. Lewis, 85 111. 597 ; Harding vs. Gouveneur, 69 111. 140; Elston vs. Kennicott, 46 111. 187. The payment of taxes may be proven by parol evidence. Tax receipts may be explained, and if a mistake has been made in description of the land or in name of person who actually made the payment, resort may be had to parol to rectify the mistake. Gage vs. Hampton, 127 111. 87. If an agent has paid in his own name instead of that of his prin- cipal, such fact may be shown. It is not indispensable that express request be proven, but may be inferred from circumstances. When the proof shows the payment of taxes by a person having no interest in the land, and a subsequent compensation thereof by the owner, the presumption is that payment was made for owner and that the person was his agent in making it. Paris vs. Lewis, 85 111. 597; Hardin vs. Gouveneur, 69 111. 140; Har- ris vs. DeWolf, 136 App. 338. 1224 TAX SCHEDULE — Abhreviations : Parol evidence is admissible to explain abbre- viations. McChesney vs. City of Chicago, 173 111. 75. Admissibility of Receipts: — Ill General: A tax receipt which simply shows that "dol- lars" were received, and fails to state that whatever amount was received was in full of the taxes assessed, and there is no charac- ter opposite the figures to indicate what they are designed to rep- resent, is fatally defective. Cook vs. Norton, 43 111. 391. A tax receipt which erroneously states the number of acres in a tract of land, but describes the legal subdivision, is good, and the statement of the quantity is immaterial. Morrison vs. Norman, 47 111. 477. Tax receipts which omit the number of the township and range are not sufficient to establish payment of taxes in connection with possession, in absence of extrinsic evidence supplying the omis- sion. ■j,^ , San. District vs. Allen, 178 111. 330. A tax receipt may be admissible that simply names the year for which taxes are paid, without giving day or month. Cook vs. Norton, 43 111. 391, So a tax receipt dated but with blank left to be tilled in to indi- cate the year for which the taxes were levied, unfilled by collector, is proof that the taxes were for the year of its date, where receipts are produced for the previous and succeeding year. Elston vs. Keunk'ott, 52 111. 272. — Objections: A general objection goes only to their compe- tency or relevancy, and not to any objection that might be obviated by the party offering them. Under such objection the party is not bound to prove the signature of officers signing the same. Wakott vs. Gibbs, 97 111. 118. A party desiring to avail himself of an objection that the tax receipts introduced in evidence showed upon their faces that cer- tain words had been added in different ink, should introduce testi- mony showing such fact or incorporate the receipts into the record for inspection of reviewing tribunal. Mickey vs. Barton, 194 111. 446. ,,. TAX SCHEDULE See Value. TECHNICAL TERMS See Abbreviations, Expert and Opinion, Parol. TELEaRAMS Judicial Notice: Judicial notice will be taken that telegraph messages are written. People vs. West. Un. Tel. Co., 166 111. 15. TELEGRAMS 1225 Original Defined. The question as to what is the original message depends upon Avhose agent the telegraph is. Where the party sending the mes- sage is the responsible party, and sends the message for the pur- pose of giving directions to be acted upon, the message delivered at the end of the line is the original. Morgan vs. People, 59 111. 58; XII 111. Notes 491, § 114, ;' Where the person to whom the telegram is sent takes the risk of transmission, or is the employer of the telegraph company, the message delivered to the operator is the original and must be pro- duced as the best evidence. Anlienser Busch Assn. vs. Hutmacher, 127 111. 652; Chisholm vs. Beaver Lake Lbr, Co., 18 App. 131. But when the person sending the message takes the initiative so that the telegraph company is to be regarded as his agent, the original is the message actually delivered at the end of the line. Auheuser Busch Assn. vs. Hutmacher, 127 111. 652. In regard to the particular end of the line where inquiry is to be made for the original, it depends upon which party is responsi- ble for the transmission across the line, or in other words, whose agent the telegraph is. The first communication in a transaction, if it is all negotiated across the wires, will be effective in the form in which it reaches its destination. In such case, inquiry should first be made for the very dispatch delivered. Chisholm vs. Beaver Lake Lbr. Co., 18 App. 131. Admissibility : — Pidiminary Proof: It is indispensable in every case and under all circumstances to show that the person sought to be charged with the consequences of a telegraphic message either sent or caused the message to be sent. The person who is alleged to have sent the message must at least be shown to have authorized the telegraph company to make some communication. t Chisholm vs. Beaver Lake Lumber Co., 18 App. 131. • — Best and Secondary: In the absence of proof of loss or de- struction of a telegraphic dispatch, and of notice to produce the same, parol evidence is not admissible to prove its contents. C. & St. L. E. Co. vs. Mahoney, 82 111. 73. Where dispatch is sought to be used in evidence, the original must be produced and its execution proven, precisely as any other instrument, or its loss or destruction shown, and then a copy must be proved to be a true and compared copy before its admission. Mattison vs. Noyes, 25 111. 481. The original telegram filed in the sending of^ce is the best evi- dence of its contents, and the copy retained for the files of the receiving office is not admissible, where it is not sho^^^l that it was a copy of the original, or that the original was lost or destroyed. Young vs. People, 221 111. 51. Fact of sending telegram and existence of matter to which it relates may be proved by parol. C. & St. L. Ey. Co. vs. Mahoney, 82 111. 73. But parol proof of contents, without producing original or identifving sender, is improper. C. & I. E. E. Co. vs. Eussell, 91 111. 299. 1226 TELEPHONE CONVERSATIONS — Admissions: Admissions made by telegraph, though made to one not a party to suit, may be shown. E. & P. Dispatch Co. vs. Cecil, 11:^ 111. 180. — Self -Serving : Telegrams merely hearsay and self-serving in character are incompetent. Woods vs. T. St. L. & W. Ry. Co., 159 App. 1209. Explanation : What was m^^ant by language of telegram is not a question to be determined by opinions of witnesses. Penn. Co. vs. Connell, 127 III. 419. Contract of Telegraph Company: Knowledge of conditions cannot be presumed. Assent must be proven. The fact that sender has for years used blanks does not justify the court in holding that sender, as matter of law, had knowledge. Beggs vs. Postal Tel. Co., 258 111. 238* In action against telegraph company to recover damages re- sulting from alleged incorrect transmission of message, if plain- tiff prove such inaccuracy, the company, to exonerate themselves, must show how the mistake occurred. In absence of any such proof on their part, jury must presume want of ordinaiy care on part of company. Tyler Co.'vs. W. U. Tel. Co., 60 111. 421. TELEPHONE CONVERSATIONS Admissibinty: — Identity of Voice: When a person places himself in con- nection with a telephone system through an instrument in his office, he thereby invites communications in relation to his busi- ness through that channel. Conversations so held are as admis- sible as personal interviews by a customer with an unknown clerk in charge of an ordinary shop in relation to the business there carried on. God-air vs. Ham Nat 'I. Bank, 225 111. 572; E. I, & P. Ey. Co. vs. Pot- ter, 36 App. 590; Contra, Obermann Brew. Co. vs. Adams, 35 App. 540; Kimbark vs. I. C. & E. Co., 103 App, 632. Conversations held over such phone by him or by any authorized person for him, or by one professing to represent him in relation to his business carried on there, are admissible. The fact that the voice at the telephone was not identified does not render the conversation inadmissible. Gallagher vs. Singer Maeh. Co., 177 App. 198; XII 111. Notes 497, §173. The converse of this must be true, that if a person use a tele- phone in his place of business, and express a desire to commu- nicate with a third party through his telephone, and a conversation takes place over the telephone, under such circumstances, the fact that the voice was not identified does not render the conver- sation inadmissible, but is a question of fact for the jury to say whether or not this proof identifies the speaker. Eogers Grain Co. vs. Taunton, 136 App. 533; Wiekes vs. Wheeler, 157 App. 578. TENDER 1227 — Preliminary Proof: In order that a telephone eonver^tion may be competent, the party testifying must be able to identify the voice of the person to whom he was speaking, or proof that it was over telephone under the control of that party or other proof of identity mnst be made. Pumphrey vs. Giggey, 150 App. 473; Rueckheim Bros. vs. SerVis Co., 146 App. 607. — ■ Bystander: A bystander in a telephone office is competent witness to testify to a part heard by him of a conversation by telephone, such conversation being shown aUitnde to have be- tween parties to the suit and upon the subject matter thereof. Miles vs. Andrews, 153 111. 262; Gait vs. Woliver, 103 App. 71; Snively vs. Colburn, 78 App. 93. — Res Gesta£: A telephone convereation to a third person may be admitted as part of the res gestae though defendant was not present. FitzGerald vs. Beuner, 219 111. 485. Burden of Proof: Is upon the party alleging a telephone conversation, to estab- lish that same was had. Straus vs. Natl. Bank, 163 App. 310. TENDER See Assumpsit. Burden of Proof and Presumptions : The burden of proof upon a plea of tender devolves upon party alleging it. Pulsifer vs. Shepard, 36 111. 513; XIV 111. Notes 793, § 20. A tender is of a strict right and ought to be made out clearly. Bucheneau vs. Horney, 12 111. 336; Wynkoop vs. Cowing, 21 111. 569; Kerney vs. Gardiner, 27 111. 162. Where it is established that a tender of money was made, it will be presumed sufficient in amount, if not objected to. Conway vs. Case, 22 111. 127. Party to Whom Made : A tender must be made to the creditor or to some person au- thorized to receive it. Steele vs. Biggs, 22 111. 643. Tender to servant without authority to receive same is insuf- ficient. McGuire vs. Bradley, 118 App. 60. Sufficiency of Tender: — Production of Money: A party attempting to make a tender must be able to show the money is in his power or reach to per- fect it, if accepted. A refusal to accept may under certain cir- cumstances dispense with the actual count of the money, but never can be received as an excuse for not having the money at command. Steele vs. Biggs, 22 HI. 643. — Count of Money: Money must be in sight and capable of immediate delivery, and the tender must be absolute unless the production of the money be dispensed with by the absolute refusal of creditor to receive it. Wynkoop vs. Cowing, 21 111. 569. 1228 TENDER Party to whom tender is made must be allowed sufficient op- portunity to examine and determine what is tendered, Newlin vs. Prevo, 90 App. 515. — Medium: The tender must be made in legal tender notes, or in gold and silver coin of the United States, or in such other money as is made a legal tender by the various acts of Con- gress, or in such articles as the contract requires. Hanna vs. Raetkin, 43 111. 462; People vs. Dubois, 18 111. 334. — Check : A tender of money in a bank check is sufficient if not objected to for such reason. Eankin vs. Eankin, 117 App. 636; Cf., Harding vs. Com. Loau Co., &4 111. 251; Sloan vs. Petrie, 16 111. 262. — More than Amount Due: it is not a good ground for ob- jection to a tender that it is too much or because it does not amount to the debt due, together with another debt, which the party to whom the tender is made insists on receiving at the same time. N. Chi. St. Ky. Co. vs. LeGrand Co., 95 App. 435. — Specific Amount: A tender, to be available, must be of a specifie amount and offered to be paid without annexing any terms or conditions. Leischner vs. Kaiser, 156 App. 123; Pulsifer vs. Shepard, 36 111. 513. A debtor must tender the full amount of the debt. Thayer vs. Meeker, 86 111. 470. If, however, he owes the creditor divers distinct sums of money, he may tender any of them. Morgan vs. Herriek, 21 111. 481. ^''■^1^ After Suit Brought: To make a good tender after suit brought, it is essential that there should be brought into court not only the sum admitted to be due, but also the plaintiff's costs up to that time. Eogers Grain Co. vs. Jansen, 117 App. 137. And include interest and costs. Sweetland vs. Tuthill, 54 111. 215. — Eeasonable Attorney's Fees: After suit is begun to fore- close a trust deed or mortgage which provides for a reasonable solicitor's fee, the tender, in order to be effective, should include the amount of the solicitor's fee earned up to the time of the tender, and must be kept good. Healy vs. Mut. Life Ins. Co., 213 111. 99; Fuller vs. Brown, 167 111. 293; Grain vs. McGoon, 86 111. 431. In taxing such fees the chancellor should exercise his own judg- ment, and not be wholly governed by the opinion of attorneys as to the value of the services. He has the requisite skill and knowl- edge to form some idea as to what is fair and reasonable com- pensation, and he should exercise that judgment. He should, no doubt, consider the opinions of witnesses and evidence of the sum usually charged and paid for such services, but should not be wholly controlled by opinions of attorneys as to their value. Healy vs. Mut. Life Ins. Co., 213 111. 99; Goodwillie vs. Milliman, 56 111. 523. — Offer Not Sufficient: Proof of a mere offer to pay money without showing an ability to make the payment is insufficient. Berger vs. Peterson," 78 111. 633; Liebrandt vs. Myron Lodge, 61 111. 81. TENDER 1229 — Must Be Unconditional: A tender, to be good, must be offered without annexing any terms or eomlitions. Dunbar vs. Springer, 256 111. 53; Conn. Life Ins. Co. vs. Stinson, 86 App. 668; Pulsifer vs. Shepard, 36 111. 513. A tender whieli is made conditional upon its acceptance as a full liquidation is not a legal tender. Iless vs. Peck, 111 App. 111. — -Place of Tender: As provided by contract. Wood vs. Merchants Savings Co., 41 111. 267; Steele vs. Riggs, 22 111. 6-13. — ■Time of Tender: A tender of amount of debt and inter- est according to contract, at any time before commencement of suit, will be sufficient. :Monroe vs. Chaldeck, 78 111. 429. Objections: One alleging specific reason for refusing tender waives other grounds. Eankin vs. Eankin, 216 111. 132. Effect of Tender : _ Debtor admits every fact wdiicli creditor would be required to prove to entitle him to amount tendered. Price vs. Jester, 137 App. 565; Mason vs. Uodelhofer, 102 App. 116; Co. of LaSalle vs. Hathaway, 78 App. 95; Ins. Co. vs. Manchester, 77 App. 673. Bringing tender into court is an admission of defendant's lia- bility on the issue of facts and leaves for determination only the question of the amount of damages. Goebel vs. C. B. & Q. Ev. Co., 149 App. 649 ; T. St. L. & W. Ey. Co. vs. Beals, 137 App. 430; Monroe vs. Chaldeck, 78 111. 429. Where tender is made before trial and not relied upon in plead- ings, explanation of reason for tender is admissible. Maekey vs. KerAvin, 222 111. 371. Where tender is made after suit brought, under plea and gen- eral issue also filed and plaintiff accepts same as parcel of amount claimed, he is not thereby precluded from further maintenance of his action. Where a tender is made and accepted after the action is brought, it becomes a question of fact in what sense plaintiff received the money tendered. FoAvlor vs. Thompson, 173 App. 333 ; Alexander vs. Loeb, 230 111. 454. Keeping" Tender Good : A tender to be kept good must be kept ready to be paid sub- ject to the order of the party to whom it is to be made, at any time he decides to accept it. Healy vs. Prot. Ins. Co., 213 111. 99; Aulger vs. Clay, 109 111. 487; Mason vs. Stevens. 91 App. 623; Brooks vs. Lawyer, 61 App. 366; XIV 111. Notes 795, § 12. A tender, to avail, must be kept good by bringing of the money into court. Dunbar vs. DeBoer, 44 App. 615; McDaniel vs. Upton, 45 App. 151, And this where the demand is of unliquidated damages, under the statute, for a toi-t, as where the demand is of a debt. Dunbar vs. DeBoer, 44 App. 615. And this as well where the suit is begun before a justice of the peace, where the plea of tender may be oral, as where the suit 1230 THREATS is begun before a superior court, where the plea must be in writ- ing McDaniel vs. Uptou, 45 App. 151. Wliere the suit is brought before a justice, and taken up on appeal the tender will not avail if not kept good before a jus- tice, upon a bringing in of the money into court above and plead- ing it. McDaniel vs. Upton, 45 App. 151. It will make no difference that evidence is introduced before the justice, the party appearing and moving for a continuance. Mcbaniel vs. Upton, 45 App. 151. AVhere, after making a tender, the party deposited the money to his own use, and a part of the sum was drawn out, and it is not shown that other money was kept ready to supply its place when called for, it was held that the tender was not kept good. Grain vs. McGoon, 86 111. 431. And tender should be kept good by bringing the money into court. O 'Kiley vs. Suver, 70 III. 85 ; Webster vs. Pierce, 35 111. 158. THREATS See Duress, Extortion, Wills, Malicious Prosecution, As- sault xVND Battery, Homicide. CRIMINAL PROSECUTIONS: Homicide : — Of Defendnnt: Declarations of intention and threats are admissible in evidence, not because they give rise to a presump- tion of law as to guilt, which they do not, but because from them, in connection with other circumstances and on proof of the cor- pus delicti, guilt may be logically inferred. Henry vs. People, 198 111. 162; Painter vs. People, 147 111. 444; XI 111. Notes 1243, § 135. Threats of accused to do violence to the person eventually slain, and all declarations and demonstrations of personal hos- tility are admissible as evincing malice and premeditation and tending to prove the criminal intent charged. McCoy vs. People, 175 111. 224; Painter vs. People, 147 111. 444; Westbrook vs. People, 126 111. 81 ; Leach vs. People, 53 111. 31. And although accompanied by acts amounting to another offense. Henry vs. People, 198 111. 162. Threats against the deceased by the accused shortly before the homicide are admissible in evidence for the purpose of showing animus, it being for the jury to determine whether they were the result of momentary anger, or were the expression of a deliber- ate intention. McCoy vs. People, 175 111. 224; XII 111. Notes 920, § 44. Threats of accused may be shown whether deceased knew of them or not. Palmer vs. People, 138 111. 356 ; Eaflferty vs. People, 72 HI. 37. Threats against officers, or a class to which deceased belonged, are admissible, though name not mentioned and threats not com- municated to deceased. Eafferty vs. People, 72 111. 37. THREATS 1231 Where a person makes a threat that he will use a revolver upon one whom he supposes to be a constable, in case he attempts his arrest, showing a purpose to resist arrest by any officer, it will be competent evidence against him on trial for the subsequent killing of a constable while attempting to arrest him, as tending to show malice and evil intention on his part, and to give char- acter to his act in killing deceased, whether the latter knew of his threats or not. Palmer vs. People, 138 111. 356. A Statement by defendant, talking about his ti-ou])le with de- ceased prior to homicide, that he, defendant, "was part Indian, — bad medicine, and that something serious would grow out of this trouble," competent as tending to show a threat. Schoolcraft vs. People, 117 111. 271. It may be shown that defendant was intoxicated. That recon- ciliation was had. That plaintiff and deceased were in the habit of quarreling one day and becoming friends the next. That threats were the mere ebullitions of passion, and not the expres- sions of a deliberate intention. Jury should take into considera- tion all the circumstances under which threats were made, with a view to determining whether or not they were the expression of a deliberate purpose or design to kill. Bolzer vs. People, 129 111. 112. A threat to defend one's self in event of being attacked does not imply the same malice and evil intent as a threat to kill, unaccompanied by qualifying words. Bolzer vs. People, 129 111. 112. Threats cannot be testified to by witness who did not hear defendant make same, but gained knowledge of same through conversation with deceased shortly before killing. Montag vs. People, 141 111. 75. — Of One Defenda/nt: Threats made by one before conspiracy formed are inadmissible against the other co-defendants. Wilson vs. People, 94 111. 299. Where a number of persons act together or in concert to chas- tise or beat certain other persons, and one of the persons is killed, expressions and statements made by some of the assailants are properly admitted in evidence on the trial of one of them for mur- der, as characterizing the mission on which he was engaged at the time they were made. Lyons vs. People, 137 111. 602; Schoolcraft vs. People, 117 111. 271. To bind all the defendants by an incriminating statement of one upon the theory that it was made in the presence of all, the evidence must show specifically who of the defendants were pres- ent wiien statement was made. People vs. Barkas, 255 111. 516. ' ' ' — Of Deceased: On plea of self-defense, proof of threats bjr deceased against accused, made to third pereon before homicide, are admissible, even though not shown to have been communi- cated to accused. Neathery vs. People, 227 111. 110; Siebert vs. People, 143 111. 571; Price vs. People, 131 111. 223; Campbell vs. People, 16 111. 17; XII HI. Notes 920, § 44. 1232 THREATS Previous threats are admissible for purpose of giving charac- ter to any attack deceased may liave subsequently made upon defendant. Leigh vs. People, 113 111. 372. Threats are admissible on question of justification. Walker vs. People, 133 111. 110. But if defendant is the aggressor, he is not entitled to prove previous threats. Adams vs. People, 47 111. 376. AVhere threats to take life are made, before a party may attack or inflict harm upon the person making the threats, there must be some overt act from which an intentio.i may be reasonably inferred to carry into eifect the threats, and the danger must be imminent. Wilson vs. People, 94 111. 299. Where wife and her paramour are charged with murder of her husband by administering poison, declarations of deceased, made at different times within the year before his death, and prior to his last sickness, that he intended to take his own life, not accompanied by any act of deceased which they might explain, being mere hearsay, are not admissible on part of defense. Siebert vs. People, 143 111. 571. Wliere death charged resulted from an attempted abortion, proof that deceased, over a year before her death, exhibited to witness an instrument which she asserted she had used to pro- cure an abortion upon herself, saying she would do it again, if necessary, rather than have children, is hearsay and incompetent. .,,y..r Clark vs. People, 224 lU. 554; Howard vs. People, 185 111. 552. — Of Third Persons: Antecedent threats do not justify an assault by the person against whom they are made, Imt they are proper to be considered in connection with the acts, at the time of the assault, of the person who made such threats. People vs. Williams, 240 111. 633. That day before homicide father of deceased was threatening to kill accused on sight is admissible on question of j^unishment. Nowacryk vs. People, 139 111. 336. Evidence as to apprehension of danger by deceased from others than accused is inadmissible. Schoolcraft vs. People, 117 111. 271. Arson : — Threats of Third Persons: Threats of a third person other than prisoner on trial, against the victim of the crime charged, are mero hearsay and inadmissible. Such threats of a third person are inter alios acta; they are too remote from the inquiry to be received and have no legal tendency to establish tlie inno- cence of accused. Innocence of participation cannot be shown by the admissions or confessions of a third person not under oath, and which are orily hearsay. The proof must connect such third person with the fact, that is, the perpetration of some deed enter- ing into the crime itself. There must be proof of such a train of facts and circumstances as tend to clearly point to him rather than accused as the guilty party. Extra-judicial statements of TIMBER 1233 third persons cannot be proven by hearsay imless such statements were i)ai1. oL' res gestae. Carlton vs. People, 150 111. 181. — Of Defendant: Previous threats of accused that he would burn out ])roseeuting witness are admissible. Cailtou vs. People, 150 111. 181. Assault: Previous threats of accused are admissible. Sharj) vs. People, 29 111. 464. CIVIL ACTIONS: Admissibility : Threats must have been communicated to defendant. ISorgenfrei vs. Schroeder, 75 111. 397; Forbes vs. Snyder, 94 111. 374. Previous threats are competent only to give character or col- oring to some act of party making same. Forbes vs. Snyder, 94 111. 374. Unless threats to be proven are so recent as to become a part of the transaction in question, they are inadmissible. Cummins vs. Crawford, 88 111. 312; Hulse vs. Tollman, 49 App. 490; Stucker vs. Thompson, 139 App. 145; Doyle vs. Cavanaugh, 139 App. 359. In trespass for assault, testimony of witnesses that they heard plaintiff make threats against life of defendant some twenty days before is inadmissible. Cummins vs. Crawford, 88 111. 312; Hulse vs. Tollman, 49 App. 490; Stucker vs. Thompson, 139 App. 145; Doyle vs. Cavanaugh, 139 App. 359. Evidence of threats made by one party to an altercation against the other is only competent when the party alleged to have made the threats makes some hostile demonstration prior to being attacked by the other party. Hefferman vs. Lloyd, 145 App. 583 ; Forbes vs. Snyder, 94 111. 374. Threats are inadmissible in mitigation of damage. Cummins vs. Crawford, 88 111. 312. Weight and Sufficiency: In action on case ' for malicious burning of a house, positive and direct evidence that defendant did the act is not indispensable to a recovery, but circumstantial evidence is sufficient. Proof of threats immediately preceding the burning, followed by the burning, is sufficient to justify the jury in finding the party guilty. " Smalley vs. Smalley, 81 111. 70. If the person in the exercise of a right, is approached by an- other in a menacing manner, and is told if he does the act his menace indicated, he w^ould kill him, such a declaration, instead of a threat to kill, should rather be regarded as a warning to the other party not to do violence. Chapman vs. Cowry, 50 111. 512. ; TIMBER See Waste, Trespass. Criminal Action: Defendant mav testifv as to intent. Mettler vs." People, 135 111. 410. ..^^,_j^ . ,.,_... Ev.— 78 '' ■'" " 1234 TIMBER Consent of cemetery association in defense may be shown by parol. Mettler vs. People, 135 111. 410; Kev., 36 App. 324. Trespass in Cutting-: — ■ Title: Plaintiff suing as owner must aver and prove that he holds title in fee simple to land. David vs. Correll, 68 App. 123; Behymer vs. O'Deli, 31 App. 350; Whitesides vs. Divers, 5 111. 336; Wright vs. Bennett, 4 111. 257; Jarrott vs. Vaughn, 7 111. 132; Edwards vs. Hill, 11 111. 22; XIV 111. Notes 1161, § 7. Reversioner or remainderman, though not in possession, may now have his action in trespass against any other person, whether in possession of premises or not, for an injury to his right or interest in the land. White vs. Main, 149 App. 345! But it is not necessary to show that defendant knew that the land belonged to plaintiff. Watkins vs. Gale, 13 111. 152. . Intent: Where one cuts timber, knowing it not to be upon his ow^n land, or upon land which he had a license to cut from, the law presumes that the trespass was wilful. Watkins vs. Gale, 13 111. 152. It nuist appear that accused committed the wrong knowingly and wilfully, under such circumstances as show him guilty of criminal negligence. It does not apply to a person who cuts timber under the mistaken belief that he is the owner. David vs. Correll, 74 App. 47; Watkins vs. Gale, 13 111. 152; White- craft vs. Vandever, 12 111. 235. — ■ Want of License: The want of license to enter and cut tim- ber must be averred in the declaration and proven by plaintiff upon the trial. Abney vs. Austin, 6 App. 49; Whitecraft vs. Vandever, 12 111. 235. — How Proof of Title Made: By showing a connected chain of title from the government or by deed conveying to plaintiff, and actual possession of land by plaintiff or prior possession by his grantor. Behymer vs. O'Deli, 45 App. 616. Plaintiff cannot prove his title by defendant's admission, not made for purpose of suit. Such admission is not best evidence. Mason vs. Park, 4 111. 532. Proof of actual possession by a person claiming title in fee simple is presumptive evidence of title in him. and sufficient to cast the burden of contesting title upon defendant. Abney vs. Austin, 6 App. 49. A mortgage, even after condition broken, is not such an out- standing title as that a stranger can use it to defeat an action of this character. Abney vs. Austin, 6 App. 49. — Punishment of blaster: It must be proven that the serv- ant committed the act under express or implied authority. Satterfield vs. W. W. Tel. Co., 23 App. 446. It is not sufficient to show that the trees were cut by persons employed by the defendant to cut timber on his own land and appropriated by them to the use of defendant. Gushing vs. Dill, 3 111. 460. See Date, Experiments. TITLE 1235 TIME TIME BOOKS See Books op Account, Memorandum. TITLE See Patents, Ejectment, Adverse Possession, Taxes, Limita- tions, Trespass, Good Faith, Tax Deeds, Legal Conclusions, Expert and Opinion, Delivery, Possession, Forcible Entry and Detainer, Trover and Conversion. Presumptions : — Validity of Title and Possession: Title from general gov- ernment being shown, presumptions in favor of its validity and of legal possession under such title arise, and remain until over- come by evidence to contrarv. Zirngibl vs. Calumet Dock Co., 157 111. 430. — From Possession: It is presumed that a claimant of prop- erty who is in possession, holds the legal title thereto. Glos vs. Huey, 181 111. 149; Harland vs. Eastman, 119 111. 22. — Continuance of Possession: On proof of a person's pos- session of land at a particular time, there may be a presumption of a continuance of such possession thereafter, but not of a prior possession. Glos vs. Kemp, 192 111, 72; White vs. White, 105 111. 313; XII 111. Notes 477, §34. And upon conveyance, it will be presumed that grantee con- tinued in possession of same as the grantor had done before. Sholl vs. German Coal Co., 139 111. 21. — .^5 to Continuance of Ownership: Ownership of real prop- erty, proven as of a specific day, is presumed to continue until some change or alienation is shown. Eggers vs. Hardwiek, 155 App. 254. — Good Faith: Color of title will be presumed to have been acquired in good faith. Peabody Coal Co. vs. Burri, 255 111. 292; Godfrey vs. Dickison Power Co., 228 111. 487. Bad faith must be proven. Godfrey vs. Dickison Power Co., 228 111. 487, Good faith is a question of fact. Dawson vs. Edwards, 189 111. 60; Sexson vs. Barker, 172 111. 361, Burden of Proof: — To Esfahtish Title: In action for breach of covenant of seizin the burden of proof is upon the defendant to show title in himself. Baker vs. Hunt, 40 111. 264. A faction of a religious society has the burden of establishing title to church property which has been in possession of trustees 1236 TITLE representing other faction, and their predecessors, for more than twenty years. Kims vs. Eobertson, 154 111. 394. — In Disputing Right of Possession: The person who is in the actual and peaceable possession of land will be deemed to be rightfully in possession, and burden of proof is upon him who would dispute that possessory right. Hanimoud vs. Doty, 184 111. 246 ; FitzGerald vs. Quinn, 165 111. 354. But in ejectment, the law does not presume that person is rightfully in possession to land to which he holds no legal title. Sonnenianu vs. Mertz, 221 111. 362. Admissibility of Evidence to Show Title : — In General: Title to premises should be shown by the deeds, or in absence of such deeds, by the records thereof; abstracts of title made by an abstract company are not competent for that purpose, nor are inventories filed in connection with an estate, where not prepared under authority of defendant. Pumphrey vs. Giggey, 150 App. 473. — Tax Deeds: A tax deed cannot be received as evidence of a paramount title unless the proceedings anterior to the execu- tion of the tax deed, required by statute, — that is, a judgment, precept, notice, etc., have been had. Glanz vs. Ziabek, 233 111. 22; Met. El. Ry. Co. vs. Eschner, 232 111. 210; Kepley vs. Scully, 185 111. 52; Anderson vs. McCorraick, 129 111. 308. So one desiring to avail himself of the effect of a tax deed as evidence of title, and not color of title merely, should introduce in evidence the anterior proceedings on which same is founded. Kepley vs. Fouke, 187 111. 162. A tax deed as color of title is prima facie evidence that sale was conducted in manner required by law, and affords presumptive proof, in first instance, of sufficiency and validity of process upon which the sale w^as made, which is the basis of the tax deed, and the prima facie case made by the production of the tax deed must be overcome by proof. Tiflft vs. Greene, 211 111. 389; Glos vs. Mulcahy, 210 111. 639; Gage vs. Gentzel, 144 111. 450. — Sheriff's Deed: Judgment, execution and levy must be pro- duced before deed can be read as evidence of title. Stribling vs. Prettyman, 57 111. 371. (See Deeds.) Return of execution need not be proven. Holman vs. Gill, 107 111. 467; Kinney vs. Kuoebel, 47 111. 417. — Master's Deed: Where a decree authorizes the making of a deed, and it has been made, it is legitimate evidence of title. Order confirming sale need not be shown. Redmond vs. Cass, 226 111. 120; Walker vs. Sehum, 42 111. 462. — Guardian's Deed: Wliere a record fails to show that the guardian had reported the sale, or that it was confirmed such deed does not transfer the title of the minor. Phelps vs. Nasworthy, 226 111. 254; Musgrave vs. Conover, 85 111. 374; Young vs. Keough, 11 111. 642. — Txecord of Unacknowledged Deed: Is incompetent to prove title, and is inadmissible for anv purpose except to show notice. Winter vs. Dibble, 251 111. 200. TITLE 1237 — Deed to Corporation: In ejectment by a corporation, en- titled to hold real estate, under which it claims title, deed cannot be doiied admission ni)on alleged ground that the corporation exceeded its powers in taking conveyance. Railway Co. vs. Keegan, 185 111. 70. — Entry Book: The statute makes the official certificate of the register or receiver of any land oftice evidence of an entry of any tract of land in his district, and such entry cannot be proven by a book certified by state auditor to county clerk. Neiderer vs. Bell, 174 111. 325; Huls vs. Buntin, 47 III. 396. — Official Certificates of General Land Office: The official cer- tificate of a register or receiver of any land office of the United States, to any matter of fact on record in his office, is competent to prove the fact so certified to. The exemplification of books and records of general land office, certified by recorder, is competent evidence of truth of its recitals. Wyman vs. City of Chicago, 254 111. 202; Black vs. C. B. & Q. Ry. Co., 237 111. 500; Wilcox vs. Jackson, 109 111. 201; 8eeley vs. Wells, 53 lU. 120; XII 111. Notes 505, §238. The act of Congress granting lands to state of Illinois, donat- ing lands in aid of construction of Central Railroad, and the certified schedules issued by Secretary of Interior and the Com- missioner of General Laud Office, are evidence of title in the State. Sawyer vs. Cox, 63 111. 130. The record, or a transcript thereof, of the list purporting to contain the tracts of land in such county, selected by I. C. R. R. Co., and purporting to be certified by Commissioner of General Land Office, is prima facie evidence of title by the company to the lands to be selected. I. C. R. R. Co. vs. Union County, 94 111. 70. — Wills: An original will, without proof of probate, is inad- missible to show title. Bartlow vs. C. B. & Q. Ry. Co., 243 111. 332; Hicks vs. Deemer, 187 111. 164. But the statute making a copy of the record admissible in evi- dence does not preclude the admission of an original probated will. AVhen the original has been probated, it is admissible in evidence. Brack vs. Boyd, 202 111. 440; Stevenson vs. Ernst, 80 111. 513. — Foreign Wills: A foreign will, duly probated in another state (a duly authenticated copy having been recorded in this state), need not be probated in Illinois or have the formalities entitling it to probate here in order to enable it to pass title to real estate here. Amrine vs. Hamer, 240 111. 572. A duly authenticated and certified copy of a will, admitted to probate in a foreign state, operates as constructive notice only from the date of the filing of the same for record. Catholic Univ. vs. Boyd, 227 111. 281. But the probate of a will in one state, though conclusive as to personal property, if made at testator's domicile, can have its 1238 TITLE only force as a devise of land in another state by virtue of some law 01 the state wherein the land is situated. Dibble vs. Winter, 247 111. 243. — Parol: The want of title in a person cannot be proven by parol testimony. To prove title or want of it, the best evi- dence must be produced or its absence properly accounted for to admit secondary evidence. Kirkpatrick vs. Clark, 132 111. 342; Osborn vs. People, 103 111. 224; Mix vs. People, 92 111, 549; Munford vs. Miller, 7 App. 62, So an admission of owner is incompetent to show title. Lavery vs. Brooke, 37 App. 51; Mason vs. Parks, 4 111, 532; Cf., Heimam vs. Kinnare, 92 App. 232. ' ^ — ' Parol testimony is not admissible as to what records show con- cerning the ownership of land. Pumphrey vs. Giggey, 150 App. 473; Cornwell vs. Cornwell, 91 111. 414; Hardin vs. Forsythe, 99 111. 312. The opinions of witnesses are not competent to prove that a person is not a land owner. Osborn vs. People, 103 111. 224. Termination or expiration of plaintiff's title cannot be shown on cross examination by asking witnesses if certain persons named did not own the premises. City of Chicago vs. Peck, 196 111. 260. The title to or ownership of land cannot be established in a judicial proceeding, by the affidavit of a person who has exam- ined the tract index book of the public records, and who therein deposes that he found a deed or deeds on record to the party in whom the title is alleged to be vested. Shreve vs. Town of Cicero, 129 111. 226. — Expert and Opinion: Sufficiency of any title to real estate is a question of law and not of fact to be proven by the opinions of witnesses. That a title is defective or sufficient cannot be shown by the opinions of examiners. Evans vs. Gerry, 174 111. 595; Mead vs. Alt'geld, 136 111. 298, Admissions and Declarations: — To Impeach Deed: Where a person has executed a deed, he cannot invalidate it by any parol declarations he may make. Potter vs. Barringer, 236*111. 224; Shea vs. Murphy, 164 111. 614; Nicewander vs. Nieewander, 151 111. 156; XII 111. Notes 499, § 198, Even though he may not have yet surrendered the actual pos- session. Hart vs. Eandolph, 142 111. 521. The declaratioiiis of a grantor after he has made a conveyance of land are not admissible to affect the grantee or the title con- veyed. Biliott vs. Western Coal Co., 243 111. 614; Lang vs. Metzger, 206 111. 475; Hagan vs. Waldo, 168 111. 646; Shea vs. Murphy, 164 111. 614. Unless grantee is present and assenting. Higgins vs. White, 118 111. 619; Gridley vs, Bingham, 51 111. 153; Myers vs. Kinzie, 26 lU. 36. Admissions and declarations made prior to the execution of the deed are not admissil)le for sole purpose of impeaching same. Shields vs. Bush, 189 111. 534; Hart vs. Eandolph, 142 111. 521; Guild vs. Hull, 127 111. 523. Declarations of ownership by one in actual possession, though TITLE . 1239 after conveyance, althonpjli not made an incident to any particu- lar acts of dominion are part of r Defined : — Common Law: An act or omission diminishing the value of the estate or its income. Bond vs. Lockwood, 33 111. 212; XIV III. Notes 1003, §2. Whatever does lasting damages to the freehold to the injury of the inheritance is waste. Stewart vs. Wood, 48 App. 378. Anything is waste which changes the character of the inherit- ance ; hence even acts which increase the pecuniary value of an estate may amount to waste. Palmer vs. Young, 108 App. 252. — Permissible: Consists in the mere neglect or omission to do what will prevent injury ; as to suffer a house to go to decay for want of repairs. Con. Coal Co. vs. Savitz, 57 App. 659. — Voluntary: Consists in the commission of some destructive act, as pulling down a house. Con. Coal Co. vs. Savitz, 57 App. 659. Who May Commit: Waste can only be committed by one in the rightful possession of land. Palmer vs. Young, 108 App. 252. Remedy : — licatraimng: The remedy by injunction is fully established and has not only virtually superseded the old common law action of waste, but has to a great extent taken the place of an action on the case for damages. An injunction will be granted in all cases where a legal action would lie to recover possession of the land wasted or to recover damages. Davis vs. Carsley Mfg. Co., 112 App. 112; Palmer vs. Young, 108 App. 252; Dorr vs. Dudderar, 88 111. 107; Smith vs. Price, 39 111. 28. WASTE 1287 Who May Maintain : — 'TrespaJis : By a reversioner in fee. Page vs. Davidson, 2li 111. 111. But not by an executor who has but power to lease for a term and afterwards to divide and sell. Page vs. Davidson, 22 111. 111. Nor by a mortgagee. His common law remedy is by an action on the case. Williams vs. Chi. Ex. Co., 8G App. 167; Min. Trust Co. vs. Verhulst, 74 App. 350. — Rephrin: Mortgagee may maintain for buildings severed before attached to other, realty. Dorr vs. Dudtlerar, 88 111. 107. — Remainderman: At common law an action for waste w^ould not lie by a remainderman against the tenant for life, if there were a mesne remainderman ; but in equity the ultimate remainderman is allowed to maintain bill for injunction. Palmer vs. Young, 108 App. 252; Ohio Oil Co. vs. Daughetee, 240 111. 361. — Base or Determinable Fee: A court of equity will interfere to enjoin "equitable waste" by the owner of a base or determinable fee only when the contingency which is to determine the estate is reasonably certain to happen. Flfer vs. Allen, 228 111. 507; Gannon vs. Peterson, 193 111. 372. — Opening Coal Mine: Is not "equitable waste" w^hich may be enjoined by executory devisee whose interest is mere expectancy. Gannon vs. Peterson, 193 111. 372. Is not waste by widow to work mines opened by the husband. Lenfers vs. Henke, 73 111. 405. And after assignment of dower, she is entitled to royalties where contract entered into by husband in his lifetime for working mine. Priddy vs. Griffith, 150 111. 560. — Opening New Oil Wells: Bv life tenant is waste. Ohio Oil Co. vs. Daughetee, 240 111. 361. •' Weight and Sufficiency: Waste must be of such a character as to charge the owner with a wanton and unconscientious abuse of his rights. Fifer vs. Allen, 228 111. 507; Gannon vs. Peterson, 193 111. 372. Or if bill by mortgagee, that the loss of security may endanger his debt. He need not affirmatively show a prosecution of his debtor to insolvency or that debtor is wholly insolvent. Miller vs. Cook, 135 111. 190. Inasmuch as the removal of a building or other improvement permanently attached to the freehold is per se an injury to the free- hold, the removal thereof will be regarded as w^aste, and a court of equity will restrain same whether mortgagee is solvent or in- solvent. Palmer vs. Young, 108 App. 252. Justification : Cutting timber in excess of what is allowed to the holder of the particular estate, can be permitted, under modification in this country of the common law rule, only where the estate is benefited rather than injured by the act, as where the land is wild land and the cutting is for the purpose of clearing for cultivation. 1288 WATERS AND WATERCOURSES Cutting timber may or may not be waste, it depends upon cir- cumstances. Stewart vs. Wood, 48 App. 378. (In case cited, right of holder of life estate by deed was re- stricted to three purposes, (1) such as was necessary for improve- ments on the premises in ordinary repairs, (2) a sufficient amount for ordinary firewood for the grantor and his wife and tenants thereon, (3) such timber as was going to decay.) Testimony of witnesses stating amount of wood actually cut and sold, from personal knowledge, outweighs that of witnesses estimating value of the wood per acre. McDole vs. McDole, 39 App. 274. WATERS AND WATERCOURSES See Expert and Opinion, Burden of Proof: The navigable capacity of an artificial slip or ditch connected at one end with a navigable stream is a question of fact, and bur- den of proving such capacity is on him who asserts it. Ligare vs. C. M. & N. Ey. Co., 166 111. 249; People vs. Economy Light Co., 241 111. 290; XIII 111. Notes 928, § 3. Judicial Notice: Courts will take judicial notice of a navigable river and its tribu- taries and feeders, and of the fact, notwithstanding such river is a natural outlet for drainage from surrounding territory, and re- ceived large quantities of sediment and debris from its tributaries; its navigability is not necessarily destroyed thereby. Canal Conirs. vs. E. Peoria, 179 111. 214; Wice vs. C. & N. W. Ry. Co., 93 App. 266. But when question arises as to small bodies of water, the loca- tion and size of which are not generally known, the court may not take judicial notice of their navigability. People vs. Board of Supervisors, 122 App. 40; Wilcox vs. Jackson, 109 111. 261. Court will take judicial notice that the north branch of the Chicago River, across which extends the bridge at or near Kinzie street, is a navigable stream. Wice vs. C. & N. W. Ry. Co., 93 App. 266. Court will take judicial notice that the Chicago river is situ- ated in the midst of the city where a dense population exists, and near which much of the business of the city is transacted. Harmon vs. City of Chicago, 110 111. 400. Court will take judicial notice that a particular creek, in its natural channels, flows into a particular river in the state at a particular place. Canal Comrs. vs. E. Peoria, 75 App. 450. And that it empties its waters and the waters of its tributaries with all the accompanying sand and other alluvial deposits, in the river near proposed improvements. Canal Comrs. vs. E. Peoria, 75 App. 450. WEATHER 1289 Admissibility of Evidence: — Statutory Declaration: Competent to show stream is navi- gable. People vs. City of St. Louis, 10 111. 351. — Ebb and Flow of Tide: Is not the test of navigable waters, and waters which are navigable in fact are navigable in law. Wohulte vs. Warren, 218 111. 108. — Use for Trade: Where shown that a stream or other body of water is of use to the public at large for the purpose of trade or connnerce, this is sufficient to prove the navigability of the water. Schulte vs. Warreu, 218 111. 108; J. C. R. K. Co. vs. Healy, 9-4 111. 416. — FlotabUity: Merely because a watercourse may, in times of periodical freshets, for a few days or weeks, be capable of floating mill logs, but in its natural state and during a greater portion of the year, is incapable of such floatage, the stream cannot be re- garded as a highway for that purpose at any time. The bed and banks of such stream, it not being navigable, belong to the riparian proprietors, and are wholly and absolutely private, and there being no claim of prescription or user, not subject to the servitude of the public interest in that regard, nor to be considered as a public highway by water. Hubbard vs. Bell, 54 111. 110. — Practical Utility: A stream to be navigable, must, in its ordi- nary natural condition, furnish a highway over which commerce is or may be carried on in the customary modes in which such com- merce is by water. A stream is navigable in fact only where it affords a channel for useful commerce and of practical utility to the public as such. The fact that there is water enough in places for row boats or small launches answering practically the same purpose, or that hunters and fishermen pass over the water with boats ordinarily used for that purpose does not render the waters navigable. People vs. Economy Power Co., 241 HI. 290. WEALTH See Pecuniary Circumstances. WEATHER Admissibility of Evidence: --Official Records: The meteorological observations of the United States signal service come within the rule which admits in evidence official registers or records kept by persons in public office, in which they are required by statute or by the nature of their office to write down particular transactions occurring in the course of their public duties, or under their personal observation. C. & N. W. Ry. Co. vs. Trayes, 17 App. 136; XII 111. Notes 505, § 234. The letter-press book in which the custodian of the records of a local weather bureau takes copies of the blanks on which weather 1290 WEIGHT AND SUFFICIENCY conditions were made up each month, constitutes the record of the local bureau, where the original blanks were sent to the gen- eral department after copying. C. &. E. I. R. Co. vs. Zapp, 209 111. 339; S. 0., 110 App. 553. Competency of Witnesses: Evidence of officials of weather bureau is competent to fix the time of "day-break." Sullivan vs. City of Chicago, 167 App. 152. WEIGHT AND SUFFICIENCY See Particular Actions. Civil Action: — In General: In civil cases, neither party is required to pro- duce more than a preponderant weight of the evidence. To require that jury be satisfied, imposes a higher degree of proof than the law requires. Sonneman vs. Mertz, 221 111. 362; Eolfe vs. Eich, 149 111. 436;. Scholton vs. Cent. City Ry. Co., 95 111. 25; Elam vs. Majestic Coal Co., 155 App. 375; Freedman vs. Shuflitowski, 182 App. 5; XII 111. Notes 535, § 471. — 'Criminal Charge in Civil Suit: Where a criminal offense is charged in pleadings of a civil suit, such offense must be proven beyond a reasonable doubt. As to other issues presented in the pleadings, only a preponderance of evidence is required to estab- lish same. Mclnturff vs. Ins. Co. of N. A., 248 111. 92; Franklin Union vs. People, 220 111. 355; People vs. Sullivan, 218 111. 419; Germania Ins. Co. vs. Klewer, 129 111. 599; McConnel vs. Del. Ins. Co., 18 111. 228; Harbinson vs. Shook, 41 111. 141; Smith vs. Lawley, 149 App. 480; Contra, Oliver vs. Oliver, 110 111. 119; Roberts vs. Woods, 82 App. 630. But the rule applies only where the charge of criminality is made in the pleadings, and not where criminality appears but inci- dentally. Grimes vs. Hilliary, 150 111. 141; Sprague vs. Dodge, 48 111. 141; Pley vs. Lavette, 167 App. 494. — Quaere: Rule not applicable to other than infamous offenses? Crane vs. Schafer, 140 App. 647; Soloman vs. Buechle, 119 App. 595. Even though the declaration charge a criminal act, proof beyond a reasonable doubt is not required if such declaration sets up facts which constitute unlawful confederation at common law. Sutton vs. Workmeister, 164 App. 105. In actions for slander and libel, it is sufficient for defendant to establish truth of matter charged by a preponderance of the evi- dence. Hawver vs. Hawver, 78 111. 412. A preponderance of evidence, only, is sufficient to establish a charge of adultery. Heyman vs. Heynian, 210 111. 524; Lenning vs. Lenning, 176 111. 180; Stiles vs. Stiles, 167 111. 576; Chestnut vs. Cliestnut, 88 111. 548. The guilt of defendant need not be established beyond a reason- WEIGHT AND SUFFICIENCY 1291 able doubt, on charge of bastardy. A preponderance of evidence is sufficient. Lewis vs. People, 82 111. 104; People vs. Chrisman, 66 111. 162; Allison vs. People, 45 111. 37; Mauu vs. People, 35 111. 467; Gehin vs. People, 87 App. 158. — Reformation' of Instrument: Relief is forbidden whenever the evidence is loose, equivocal or contradictory, or in its texture open to doubt or opposing presumptions. 'Parol evidence of mis- take must be established beyond a reasonable doubt. Courts of equity do not grant the high remedy of reformation upon a prob- ability nor upon a mere preponderance of evidence, but only upon certainty of the error. Lines vs. Willey, 253 111. 440; Cf. Perry vs. Elliott, 261 111. 553. — Notice of Unrf corded Deed: The title of a subsequent pur- chaser whose deed is first recorded will not be defeated on the ground of notice of a prior unrecorded deed, unless the proof of such notice is so clear and positive as to leave no reasonable doubt that the taking of the second conveyance was an act of bad faith towards the purchaser. The fact of notice must be proven by direct evidence or by other facts from which it may be clearly inferred, and the inference must not be probable, but necessary and unquestionable. Lowden vs. Wilson, 233 111. 340; Eobertson vs. Wheeler, 162 111. 566. — Due Care: Due care is not established from mere occurrence of an accident and a consideration of the human instinct of self preservation. And in the absence of any direct testimony tending to show due care, there can be no recovery. Newell vs. C. C. C. & St. L. Ey. Co., 261 111. 505. Penal Action: In action of debt to recover a penalty, more than a mere pre- ponderance of the evidence is necessary in order to authorize a recovery. A. T. & S. F. F. Ey. Co. vs. People, 227 111. 270; Gilbert vs. Bone, 79 111. 341; T. P. & W. Ey. Co. vs. Foster, 43 111. 480: Gunkel vs. Bachs, 103 App. 494. Proof need not be beyond reasonable doubt. I. M. Mut. Ins. Co. vs. People, 65 App. 355. Criminal Prosecution: — Evidence as a WJiolc: It is sufficient if evidence, as a whole, satisfies the jury, beyond a reasonable doubt. Proof of each link in the chain is not necessary. People vs. See, 258 111. 152; People vs. Scarbak, 245 111. 435; Keat- ing vs. People, 160 111. 480. '■ The reasonable doubt which a jury may entertain must be in regard to the guilt of the accused considering the whole evidence, and not in regard to the sufficiency of proof of any particular fact in the case. _ Henry vs. People, 198 111. 162 ; Williams vs. People, 166 111. 132. — Circumstantial Evidence: Before conviction can properly be had upon purely circumstantial evidence, guilt of accused must be so thoroughly established as to exclude every reasonable hypothesis of his innocence. Purdy vs. People, 140 111. 46; Parsons vs. People, 218 111. 386; Dunn vs. People, 158 111. 586; Marzen vs. People, 173 111. 43; Dunn vs. People, 172 111. 582; People vs. York, 262 111. 620; People vs. Rischo, 262 111. 596. Proof that accused attempted suicide while in jail is admissible 1292 WEIGHT AND SUFFICIENCY as a circumstance to be taken into consideration by the jury, and its weight is to be determined by them. People vs. Duncan, 261 111. 339. Or flight before or after indictment found. People vs. Duncan, 261 III. 339 j Barron vs. People, 73 111. 256; Fox vs. People, 95 111. 71. Eesisting arrest may be shown. McKeavitt vs. People, 208 111. 460. Finger print evidence is admissible with other evidence as a means of identification. People vs. Jennings, 252 111. 534. Or foot prints. People vs. Hannibal, 259 111. 512; People vs. Carleton, 150 111. 181; People vs. Dunn, 158 111. 586. Silence of a person when accused of crime, when occasion afforded opportunity to speak, may be shown as a circumstance or implied confession. People vs. Tielke, 259 111. 88; Ackerson vs. People, 124 111. 563; Watt vs. People, 126 111. 9; Gannon vs. People, 127 111. 507. But this only when accused remains silent. Accusation may not be shown when accused at once denies guilt, even though what he said and the whole of the conversation is admitted. People vs. Harrison, 261 111. 517. A confession is not equivalent to statements or admission of fact criminating in their nature. McCann vs. People, 226 111. 562; Michaels vs. People, 208 111. 603; Johnson vs. People, 197 111. 48. It is for the jury to say what weight a confession is entitled to. People vs. Gukowski, 250 111. 231; People vs. Tielke, 259 111. 88; May vs. People, 92 111. 343. — Justification or Excuse: Burden is upon defendant, but it is erroneous to instruct the jury that it is incumbent upon him to establish satisfactorily such defense. Appleton vs. People, 171 111. 473; Smith vs. People, 142 111. 117; Wacaser vs. People, 134 111. 438; People vs. Casey, 231 111. 261. Expert and Opinion: The opinions of professional men and of experts are not always of a conclusive character. Such opinions are not to be lightly esteemed. They are proper and legitimate evidence to be consid- ered in connection with other evidence, and they may, and often do, tend to elucidate the true meaning of the case. C. B. & Q. Ry. Co. vs. Gregory, 58 111. 272 ; C. & A. Ey. Co. V8. Shan- non, 43 111. 338; XII 111. Notes 533, § 454. Weight to be accorded to an opinion of expert witness depends largely upon his means of information and knowledge as well as his bias and inclination or relation to the parties. McMahon vs. Chi. City Ey. Co., 239 111. 334; Kerfoot vs. City of Chicago, 195 111. 229; Franklin vs. Krum, 171 111. 378. The weight and value of the testimony of expert witnesses large- ly depends upon the foundations of fact and of reason upon which their opinions stand. Cram vs. City of Chicago, 94 App. 199; C. &. N. W. Ey. Co. vs. Town of Cicero, 154 111. 656. And such basis is proper to be shown, either in chief or on cross examination. C. & N. W. Ey. Co. vs. Town of Cicero, 154 111. 656. Opinions of physicians on question of mental capacity are en- WHOLE OF UTTERANCE 1293 titled to no greater weight than opinions of laymen who are men of good common sense and judgment. Austin vs. Austin, 2G0 111. 299; Carpenter vs. Calvert, 83 111. 62. Judicial Notice: Facts of which courts take judicial notice need not be proved. Vahle vs. Brackenseik, 145 111. 231; Sechrist vs. Petty, 109 111. 188. Judicial notice is a term used to express the duty or power of the court to accept, for purposes of trial, the truth of certain Avell known facts without recpiiring proof. It is that judicial knowledge of a fact as a rule of evidence which dispenses with the necessity of offering proof as to such fact. City of Chicago vs. Williams, 254 111. 360. WHOLE OF UTTERANCE See Cross Examination. Admissibility : — Admissions and Conversations: If a party prove an admis- sion by his adversary, as tending to support his cause of action or defense, the adversary is entitled to prove such other parts of the- conversation as tend to explain or even destroy the admission. Foster vs. Shepard, 258 111. 164; Chi. City Ey. Co. vs. Bundv, 210 111. 39; C. E. I. & P. Ey. Co. vs. Eininger, 114 111. 79; Johnson vs. Moulton, 2 111. 532; Corning vs. DoUmeyer, 123 App. 188; XII 111. Notes 488, § 102. Although the remainder w'ould, if offered independently, be in- competent on the ground that the statements were self-serving. Olson vs. Brundage, 139 App. 559. The conversations of a party to the suit relative to the subject matter of the suit are, in themselves, evidence against him in the suit, and if a counsel chooses to ask a witness as to anything which may have been said by an adverse party, the counsel for that party has a right to lay before the court the whole which was said by his client in the same conversation, — not only so much as may ex- plain or qualify the matter introduced by the previous examina- tion, but even matter not properly connected with the part intro- duced on the previous examination, provided, only, that it relate to the subject matter of the suit, because it would not be just to take part of a conversation as evidence against a party, without giving the party, at the same time, the benefit of the entire residue of what he said on the same occasion. Morris vs. Jamieson, 205 111. 87. The whole of an admission is to be taken together, and when part of a conversation or statement is put in evidence by one party, the other is entitled to put in the whole, so far as it is relevant; and it makes no difference whether the whole statement comes out on direct examination, or part of it is drawn out on cross exam- ination. Morris vs. Jamieson, 205 111. 87; Barnes vs. Northern Trust Co., 169 111. 112; Mclntyre vs. Thomson, 14 App. 554. Ordinarily an admission is to be taken as an entirety, and when part of a statement is introduced as an admission against a party, he is entitled to introduce any other part relevant to the matter in issue which will explain, qualify, limit or modify the effect of the admission. Merchants L. & T. Co. vs. Egan, 222 111. 494. 1294 WHOLE OF UTTERANCE The general rule is that where confessions or admissions are introduced by one party, the opposite party is entitled to the whole conversation, and where the answer of a party to a ques- tion is sought to be introduced and such answer could not be under- stood or would be unintelligible without stating the question also, the question is admissible; but this rule does not include what the witness may have said further than his language may be neces- sary to understand what was said by defendant. Young vs. Bennett, 5 111. 43; Hatch vs. Potter, 7 111. 725. Statements made by a party against his interest may be ac- cepted and acted upon by the jury as true, and they may reject other statements made in his favor, though made at the same time and as part of the same conversation. Schmidt vs. Pfau, 114 111. 494. Where one party to a suit proves part of a conversation, the other party has a right to all that was said at the time, limited to the same subject, since it may qualify or explain what has been testified to. Norton vs. Clark, 253 111. 557; Black vs. W. St. L. & P. By. Co., Ill 111. 351; Scott vs. People, 141 111. 195. Party who seeks to introduce part of a conversation can not complain if opposite party puts whole conversation before the jury. Lockport vs. Licht, 123 App. 426. Where a conversation is detailed by a witness, the party against whom the evidence is offered is entitled to the whole conversation which occurred at the time. Phares vs. Barber, 61 111. 271 ; Hatch vs. Potter, 7 111. 725. — Confessions: Where prosecution proves statement or admis- sions of a defendant, the whole must be received in evidence, but the jury are not bound, as a matter of law, to believe the entire statement. If a part of such statement is disproved or contra- dicted by other evidence, the jury have the right to give effect to such contradictory evidence, and reject such part of defendant's statements as are not entitled to credence and accept the rest. Hanrahan vs. People, 91 111. 142. If a defendant is charged with a crime and unequivocally denies it and this is the whole conversation, it cannot be introduced m evidence against him as a confession. If he makes a reply admit- ting the truth of the statement wholly or in part both the state- ment and reply are competent. People vs. Harrison, 261 111. 517. Those portions of a confession introduced in evidence which are in favor of the accused are entitled to as much consideration by the jury as those which are against him, where they are not dis- proved by other testimony, and are not improbable or untrue, when considered with all the other evidence. Burnett vs. People, 204 111. 208. — Former Testimony: If a party, on cross examination, is in- terrogated with reference to certain testimony given by him on a former trial, it is proper to permit him on re-direct examination to repeat the whole of his testimony on the former trial covering the points as to which he was cross examined. 111. steel Co. vs. Wierzbicky, 206 111. 201. Where, on a second trial in prosecution for murder, the testi- WHOLE OF UTTERANCE 1295 mony of defendant on former trial is admitted in evidence, the entire testimony is admissible, and it is error to limit a cross ex- amination as to only that part of the testimony which the other party introduced. Other questions and answers propounded to the defendant, which tend to explain, qualify, correct or in any way throw light upon the matters touched upon in the questions and answers proven by the People, are proper, being necessary to a full and accurate understanding of the statements or admissions sought to be proven. That the witness who was called to detail the statements made by accused, when testifying as a witness on the former trial, was the official court reporter, has no effect to change or modify this rule. No special weight is, by statute, given to stenographic notes, and the former evidence of a witness may be established by any person who heard the testimony and can swear to it from memory. Miller vs. I^eople, 216 111. 309. When complainants, to prove allegations of bill, offer portions of defendants' testimony in another case showing they had taken securities from a safety-deposit box, defendants are not entitled to prove other portions of their testimony where, under the plead- ings in that case, such testimony was not admissible. Millard vs. Millard, 221 111. 86. If upon a former trial a party called a witness, upon a subse- quent trial such party may offer not only the direct but also the cross-examination of such witness. Doggett vs. Greene, 163 App. 369. Where, for purpose of impeaching a witness, a witness is asked concerning certain former testimony, and denies making the state- ments in substance, he may not, during such cross examination, explain or state his version of the former testimony, but may do so on re-direct. Bressler vs. People, 117 111. 422. — Accounts-: Where party calls for and introduces books of ac- count, he is bound to admit those items which make against him as well as those which operate in his favor, unless he can show that the items to his prejudice have been improperly inserted. Howell vs. Moore, 127 111. 67; Moore vs. Wright, 90 111. 470; Mark vs. Miles, 59 App. 102. If a party put in evidence an account for any purpose, he makes the whole of it evidence. Moore vs. Wright, 90 111. 470; Carey Lumber Co. vs. Hunt, 54 App. 314. Where party in bill of particulars admits a credit, in action of account, the debits .as well as the credits must be considered. Thompson vs. Hovey, 43 111. 197. — Depositions: Plaintiff, in taking deposition, examined wit- nesses as to certain conversation of one of defendants, but on the trial concluded not to introduce this proof, and read the remain- ing part of the deposition. Defendants claimed the right to read the whole of the omitted part and thereby prove their own declara- tions. It was not competent for defendants to prove their own declarations, and court properly refused to allow them to read the whole of the deposition. Forbes vs. Snyder, 94 111. 374. 1296 WHOLE OF UTTERANCE Depositions taken by one party and not withdrawn by him, he failing or refusing to read same, adverse party may introduce ques- tions and answers from same in both direct and cross examination, and he is not precluded from reading the cross examination on the theory that by introducing the direct examination he makes the witness his own and cannot cross examine him. Doggett vs. Greene, 254 111. 134; Adams vs. Eussell, 85 111. 284. A party taking a deposition may abandon same on the trial, and in this condition opposite party may use it. Ey. Co. vs. Anda Co., 131 App. 426. Cross examination cannot be read by adverse party, where proper objection is made to the competency of the witness at time of taking deposition. Achilles vs. Achilles, 137 lU. 589. — Letters: Where a letter is offered in evidence, particular parts of which are desired by the party offering them to go before the jury, he may read that part of the letter to the jury and is not required to read the whole letter. The other party has the right to read the whole letter if he so desires. Slingloff vs. Brimer, 174 111. 561. Where a part of a letter is offered by one party, and the other party desires the whole letter in evidence, he may, when he comes to the defense, introduce the same, but he cannot compel the ad- verse party to introduce the entire letter. . Raphael vs. Hartman, 87 App. 634; Imperial Hotel Co. vs. daflin Co., 55 App. 337. Where part of a letter is competent, the whole may be received. Page Fence Co. vs. I. S. B. Co., 162 App. 492. Where passages in a letter are read by one party, the other party has the right to introduce the whole of such letter in evidence. Beasley vs. People, 89 111. 571. A party who calls upon his adversary for the production of documentary evidence cannot, when it is produced, claim the bene- fit of such portion thereof as may be to his advantage and at the same time reject that tending against him and also deprive his opponent of the right to its use. Boudinot vs. Winter, 190 111. 394. — Libelous Publication: Where part of libelous article is in- troduced, defendant may introduce whole article. Lodge vs. Hampton, 116 App. 414. Where part is detailed, party against whom it is used is entitled to whole. Hatch vs. Potter, 7 111. 725. — Written Statement of Party: Counsel may read to the jury parts of a written statement made by party to suit, without otter- ing the the whole statement in evidence. If adversary desires to put the whole statement in evidence, he may do so. Vischer vs. N. E. R. Co., 171 App. 544. Effect of Accompanying" Explanation: Where accompanying statements are not in themselves unreason- able or improbable, nor is there anything in the nature of the tran- saction or the evidence tending to impeach them, the admission, with the accompanying declaration, which serves as an answer to WILLS 1297 the admission, is to be received in evidence and the answer is con- clusive. Morris vs. Janiieson, 205 111. 87; Bailey vs. Pardridge, 35 App. 121; Schmidt vs. Pfau, 114 111. 494. If a party calls for the admission he is bound to take all that was said upon the occasion, concerning the matter in dispute, whether it makes for or against him. Moore vs. Wright, 90 111. 470. Where a party relies upon the admissions of the other party, the whole of the admissions must be taken together. Arnold vs. Johnson, 2 111. 196. Where part of evidence of incompetent witness is excluded, con- nected statement as to same transaction must be excluded. Admis- sion against interest cannot be retained and explanation rejected, Hawley vs. Hawley, 187 111. 351. WIDOW See Husband and Wife, Trusts, Witnesses. WILLS See Admissions and Declarations, Affidavits, Ambiguity, Best. AND Secondary, Burden of Proof, Coroner's Inquest, De- scription, Expert and Opinion, Fiduciary Relations, Hus- band and Wife, Impeachment, Intestacy, Knowledge, Legal Conclusions, Letters, Lost Instruments, Presumptions, Priv- ileged Communications, Sanity and Insanity, Subscribing Witnesses, Title, Witnesses. CONSTRUCTION: In General: In construing wills, the paramount rule is to ascertain the inten- tion of the testator and give it effect if not prohibited by law. Coon vs. McNelly, 254 111. 39 ; XIV 111. Notes 1055, § 226. The object of construction is to ascertain the intention which the testator has expressed in the language of the will and not one which he may be supposed to have had in his mind but has not expressed. Crabtree vs. Dwyer, 257 111. 101. In construing ambiguous provisions of a will or codicil, rela- tions of the parties, nature and situation of the subject matter, purpose of the instrument and motives which may be reasonably supposed to have influenced testator in disposition of his property may be considered. Wardner vs. Baptist Mem. Board, 232 111. 606. Whole will should be taken together in ascertaining intention of testator. Wimbush vs. Wimbush, 253 111. 407; Heisen vs. Ellis, 247 111. 418; Terhune vs. Com. S. D. Co., 245 111. 622. Such a construction should be adopted, if it can be reasonably done, as will give force and effect to every word and clause of the will. Bergman vs. Arnhold, 242 111. 218; Orr vs. Yates, 209 111. 222; Morrison vs. Schorr, 197 111. 554; Eyer vs. Williamson, 256 111. 540. None can be arbitrarily rejected as meaningless or surplusage. Winter vs. Dibble, 251 111. 200. Ev.— 82 1298 WILLS Language of Will: liiteiilion of the testator to be ascertained is not one which may be inferred existed in the mind of the testator but is the one expressed in the language of the will, and surrounding circum- stances cannot be received to import into the will an intention not therein expressed. Karsten vs. Karsten, 254 111. 480; Williams vs. Williams, 189 111. 500. Extrinsic evidence is not admissible to make a will for testator, even though it establishes fact that he intended to make a will. Karsten vs. Karsten, 254 111. 480. The rules for admission and exclusion of evidence in regard to wills are substantially same as those relating .to contracts, and evidence is not admissible to show testator's intention except to enable the court to interpret the language used and circumstances under which testator used it. Noble vs. Fiekes, 230 111. 594. Where will contains no latent ambiguity, the testator's inten- tion must be determined from language of will itself, and extrinsic evidence cannot be resorted to. In construing a will, evidence of condition of the testator's mind at the time he executed will, whether he lived with his family, how much of a family he had, etc., is admissible to give the court the testator's situation so that the will may be read in the light in which it was written. Hawhe vs. C. & W. I. Ey. Co., 165 111. 5(51. As to Intestacy : It is presumed that a testator, when he makes and publishes his will, intends to dispose of his entire estate, unless the presumption is rebutted by provisions or evidence to the contrary. Northern Trust Co. vs. Wbeaton, 249 111. 606; Taubenham vs. Dunz, 125 111. 524. When a party makes a will, it will be presumed he intends to dispose of his entire estate, unless the presumption is clearly re- butted by its provisions or evidence to the contrary. The courts will so construe a will as not to make the testator die intestate as to any part of his estate, unless it is impossible to so construe it as to give effect to what may fairly be collected to have been his intention. Eyer vs. Williamson, 256 111. 540; Lewis vs. Sedgewick, 223 111. 213; Hayward vs. Loper, 147 111. 41; Biggerstatf vs. Van Pelt, 207 111. 611; Hoffner vs. Custer, 237 111. 64. And such presumption is strengthened by absence of any residu- ary clause. Felkel vs. O'Brien, 231 111. 329. This presumption is so strong that the court will adopt any reasonable construction of a will rather than hold that the testator intended to die intestate as to any of his property. Eyer vs. Williamson, 256 111. 540; Lewis vs. Harrower, 197 111. 315. If a will actually fails to dispose of all the testator's property, leaving a part thereof intestate, the presumption against intestacy does not authorize the court to place a construction upon the will itself not .iustified by the language used, for purpose of making it dispose of all the property. Jacobs vs. Ditz, 260* 111. 98; Wixson vs. Watson, 214 111. 158; Bond vs. Moore, 236 111. 576. In a will, cancelled clauses making provision for unborn child WILLS 1299 cannot be considered as tending to prove the testator's intention to disinherit the cliihl. Luiio vs. K;i(lnitzcr, 166 111. 609. Surrounding- Facts and Circumstances: Court will consider will in light of facts surrounding testator. Wallace vs. Foxwell, liSO 111. 616; XIV 111. Notes 1056, §232. While extrinsic evidence is not admissible to import into a will an intention not expressed in it, it is competent to show that fact or circumstance referred to by the testator, when necessary to identify the subject of disposition or object of the testator's bounty. In construing a will, the court should always endeavor to read its expression in the sense in which employed by the testator, and for this purpose may consider it in the light of the facts and circum- stances surrounding the testator at the time the will w^as made. Perry vs. Bowman, 151 111. 25. In seeking intention, relation of parties, nature and situation of the subject matter, purpose of instrument and motives which might reasonably be supposed to intluence the testator in disposition of his property may be considered. Rule as to exclusion of evidence offered to explain written instruments does not exclude the cir- cumstances in which the testator was placed or the collateral facts surrounding him at time the will was executed. The law is not so unreasonable as to deny the reader of any instrument same light which the writer enjoyed. Coon vs. McNelly, 254 111. 39. But evidence of the surrounding circumstances will not be per- mitted to change expressed intentions. Crabtree vs. Dwyer, 257 111. 101; HoUenbeck vs. Smith, 231 484; Stisser vs. Stisser, 235 111. 207; Collins vs. Capps, 235 111. 560. Although a will speaks only from the time of the testator 's death, if his intention, as communicated in his will, is not clear, evidence of condition of his estate at time of making the will is admissible. Dearlove vs. Otis, 99 App. 99. But evidence is inadmissible to prove surrounding circumstances for purpose of importing into the will an intention not there in some way expressed. Bingel vs. Voltz, 142 111. 214. To enable court to arrive at intention of a testator in making disposition of his property, extrinsic evidence or testimony is proper to show the circumstances under which will was made, as to state and condition of his property, of his familv, and the like. Kaufman vs. Brekenridge, 117 111. 305; Felkel vs.' O'Brien, 231 111. 329; Gano vs. Gano, 239 111. 539; Richards vs. Miller, 62 111. 417; Missionary Society vs. Mead, 131 111. 338. Declarations of Testator: As with deeds, so with walls, parties making them cannot invali- date them by their own parol declarations, made either previously or subsequently, and evidence of such declarations is properly excluded when the validity of the will is on trial. Dickie vs. Carter, 42 111. 376; Taylor vs. Pegram, 151 111. 106. Declarations of testator as to disposition of his property, con- flicting with the will, are not admissible. Martin vs. Beatty, 2.54 111. 615. Declarations of testator as to extent of interest he intended to give devisee by his wall are clearly incompetent evidence. The 1300 WILLS testator's intention must be determined from the language of the will. Kirkland vs. Conway, 116 111. 438. Proof of declarations of the testatrix to a witness with refer- ence to an intended disposition of her property, inconsistent with the disposition made thereof by the will, is not admissible, there being no question as to fact that the testatrix was of sound mind and memory. Conipher vs. Browning, 219 III. 429. Testator 's declarations are not admissible to vary meaning of will. HoUeiibeck vs. Smith, 231 111. 484. In construing wills, courts cannot resort to the declarations of testator, either before or after execution of will, to control its provisions. Brownfield vs. Wilson, 78 111. 467. Parol declarations of testator, made prior to execution of will, and inconsistent with its provisions, are inadmissible. Bevelot vs. Lestrade, 153 111. 625. Prior declarations of testator, or prior wills cannot be received in evidence for purpose of varying or controlling operation of the contested will. Floto vs. Floto, 233 111. 605. Where question is whether the words of description employed in devise of land were used with reference to an old plat or a new one, evidence of declarations of testator showing that he was in the habit of using the words of description with reference to new plat is competent; but such declarations, in so far as they indi- cate an intention to provide for the devisee, are incompetent, and will be presumed not to have been considered by court where the result would be the same without them. Hoffner vs. Custer, 237 111. 64. Testator cannot destroy will by what he may have said before or after execution. Crumbaugh vs. Owen, 23S 111. 497. Statements of testator, whether made before or after will was executed, cannot be received to prove what was intended by the written words of the will. Peet vs. Peet, 229 111. 341. Testimony by the person who wrote the will, as to what was his understanding of testator's conversation at the time will was made cannot be received in evidence to vary the meaning of the will as evidenced by the language used therein. Hollenbeck vs. Smith, 231 111. 484. Declarations of testator, made at time of erasing clause in his will which made provision for an unborn child, are not admissible to prove intention to disinherit such child. Lurie vs. Eadnitzer, 166 111. 609. Whether conversations of testator in relation to disposition of property, prior to making will, are too remote to be admissible, rests with the court. Hiififman vs. Graves, 245 111. 440. Declarations of testator, made after execution of will, are ad- missible after its loss, to prove not only that it had not been can- celled, but also to prove its contents. In the Matter of Page, 118 111. 576. WILLS 1301 "Where a bequest is made to executors, of a sum of money to be used and disposed of by them according to verbal directions given them, parol is admissible to show what those instructions were, and to show performance. Oagney vs. O'Brien, 83 111. 72. Ambiguity : Where there is no ambiguity in the terms used, or where the language of the instrument has a settled legal meaning, the instru- ment itself is the only criterion of the intention of the parties and its construction is not open to oral evidence. Crabtree vs. Dwyer, 257 111. 101 ; Deemer vs. Kessinger, 206 111. 57. Parol evidence is inadmissible in absence of latent ambiguity. Hawhe vs. C. & W. I. E. Co., 165 111. 561; Hayward vs. Loper, 147 111. 41; Taubenham vs. Dunze, 125 111. 524; Heslop vs. Gatton, 71 111. 528; Peet vs. Peet, 229 111. 341 ; XIV 111. Notes 1055, § 227. Extrinsic evidence is admissible to determine existence of latent ambiguity. Whitcomb vs. Rodman, 156 111. 116. A latent ambiguity raised by extrinsic evidence is explainable by extrinsic evidence. Graves vs. Eose, 246 111. 76. While surrounding facts and circumstances may be proven to explain a latent ambiguity, such evidence cannot be admitted to explain an ambiguity which appears on the face of the will, or to supply omissions or deficiencies in the will. Karsten vs. Karsten, 254 111. 480; Engelthaler vs. Engelthaler, 196 111. 230; Penn. Ins. Co. vs. Bauerle, 143 111. 459. A mere verbal omission may be supplied. Eyer vs. Williamson, 256 111. 540. But evidence that testator did not own certain lands devised does not show a latent ambiguity, but a mistake of testator in mak- ing will, and is not such as may be corrected by extrinsic evidence. Graves vs. Eose, 246 111. 76. Extrinsic evidence cannot be heard to alter, detract from or add to the provisions of a will. But in case of a latent ambiguity, parol evidence is admissible for purpose of identifying the property in- tended to be devised. Bowen vs. Allen, 113 111. 53. Extrinsic evidence is not admissible to alter, detract from or add to the terms of a will, and a will cannot be reformed to con- form to any intention of the testator not expressed in the will itself, however clear that intention may appear from proof of ex- trinsic facts. Eodiseh vs. Moore, 257 111. 615; Graves vs. Eose, 246 111. 76. Extrinsic evidence is not admissible to show that land devised as being in a certain section was intended to be described as in a certain other section. Lomax vs. Lomax, 218 111. 629; Williams vs. Williams, 189 111. 500; Bingel vs. Yolz, 142 111. 214. The law requires that all wills of land shall be in writing and extrinsic evidence is never admissible to alter, detract from or add to the terms of a will. Parol evidence is not admissible for purpose of showing testator intended to devise lands situate in different sec- 1302 WILLS tions from those mentioned in tlie will, and that the draughtsman of the will, by mistake, inserted the wrong numbers. Kurtz vs. Hibiier, 55 111. 514. But where a testator devised lands by a certain description, there being two conflicting plats, the later one being a re-survey of the original block, extrinsic evidence is admissible to show whether the description employed by testator was used with reference to old plat or new one. Hoffner vs. Custer, 237 111. 64. In absence of a latent ambiguity, extrinsic evidence is not ad- missible to show an intention on the part of the testator to make legacies a charge upon his real estate. Hayues vs. McDonald, 252 111. 236; Wentworth vs. Eeed, 166 111. 139. If the words of the testator as to the donee and the subject of the gift are unambiguous, such, words cannot be varied by evi- dence of extraneous facts, however clearly a different intention may appear. Vestal vs. Garrett, 397 111. 398. For purpose of determining the object of the testator's bounty, a court may inquire into every material fact relating to the per- son who claims to be interested in the will, in order to identify the person intended by the testator as legatee. Parol evidence is ad- missible of any extrinsic circumstances tending to show what per- son or persons or what things were intended by the party, or to ascertain his meaning in any other respect. A nickname may be shown, as may also a name gained by reputation. Coon vs. McNelly, 254 111. 39. The rule is that while surrounding facts and circumstances may be proven to explain a latent ambiguity which is not found upon the face of the instrument itself, extrinsic evidence cannot be ad- mitted to explain an ambiguity which appears upon the face of the will, or supply its omission and deficiencies, since that would be to make a will for testator. Carston vs. Carston, 254 111. 480. Where an ambiguity in a w'ill is not latent, extrinsic evidence is inadmissible to explain will or show intention of testator. Haywood vs. Loper, 147 111. 41. Parol evidence is admissible in explanation of a latent ambiguity that arises where writing, on its face, appears clear and unam- biguous, but the meaning is rendered uncertain by extrinsic evi- dence, or from matters of which the court will take judicial notice, and where uncertainty is so created, it may be removed by extrin- sic evidence. Graves vs. Eose, 246 111. 76. Where the devise of "the homestead" is followed by a descrip- tion which is incomplete but not incorrect, parol testimony is competent to prove the legal description of the homestead premises. Morall vs. Morall, 236 111. 640. Where the description of land devised in a will is apparently unambiguous, but the township, range, county and state are not specified, the court will take judicial notice, from its knowledge of governmental surveys, that the apparently unambiguous de- WILLS 1303 scription is, in fact, uncertain, and may permit the township, county, range and state to be supplied by extrinsic evidence. Graves vs. Ivose, 24G 111. 7G. Reference to number of acres cannot control plain words of a will. Graves vs. Eose, 246 111. Tfi; Williams vs. Williams, 189 111. 500,-, Bingel vs. Volz, 142 111. 214; Bishop vs. Morgan, 82 111. 351. When there is a latent ambiguity in description of object or sub- ject of the gift, and such ambiguity can be removed by rejecting false words, leaving a complete intelligible description, it is the duty of the courts to so do, as where there are two descriptions, one good and the other ])ad, the latter may be rejected. Vestal vs. Garrett, 197 111. 398; Collins vs. Capps, 235 111. 560; Gano vs. Gano, 239 111. 539 ; Emmert vs. Hays, 89 111. 11. Where a will reveals, when applied to the property, a latent am- biguity in the description, the extrinsic evidence which may be resorted to to remove ambiguity does not include declarations of testator at time he wrote the will, as to what he intended to give plaintiff. The language used must be construed according to its terms, aided by such light as may be shed on testator's surround- ings and environment, by parol testimony. The court may use parol testimony to put itself in the testator's place, but not to frame a new will. Mason vs. Ely, 38 111. 138. In construing wills, parol testimony is competent to prove the circumstances surrounding the testator, the condition of his prop- erty, his relations to his family, etc., but not to prove his declara- tions before or after executing the will. Eansdell vs. Boston, 172 111. 439. When there is a gift to a society for charity, without clearly- describing the particular society, and there are two or more soci- eties carrying on the same charity, a latent ambiguity exists, and extrinsic evidence is admissible for the purpose of determining the society or institutions intended by the donor at the time of the execution of his will. Hitchcock vs. Board of Home Missions, 259 111. 288. Opinion Evidence: Witnesses cannot be permitted to answer questions which indi- rectly call for their opinions as to the proper construction of par- ticular provisions. McFarland vs. McFarland, 177 111. 208. Foreign Laws : In construing a foreign will affecting land in Illinois, proof of laws or usages of the foreign state, with w^hieh testator is shown or presumed to be familiar, may be received, not to establish a rule of law binding upon the court of the forum, but to enable it to correctly construe the language of the will in the sense in which it was used. Peet vs. Peet, 229 111. 341. Memoranda : A memorandum in the handwriting of testator, found among his papers, but unsigned and unattested, cannot be received in aid of construction. '*' "* Penn Co. vs. Bauerlee, 143 111. 459. 1304 WILLS Judicial Notice: It is a matter of common knowledge that most all religious de- nominations maintain missions or missionary societies for the ad- vancement of the cause of religion. Hitchcock vs. Board of Home Missions, 259 111. 288. Presumptions : It will be presumed, in absence of anything in the will to the contrary, that will was made in view of the statutes then existing, and that the same were intended by the intestate to prevail in ease of a contingency not provided for in the will. Kudolpli vs. Eudolph, 207 111. 266. That qualifying words were intended to have some meaning. Tea vs. Millen, 257 111. 624. In construing a will, it must be presumed that the testator knew the law. Greenwood vs. Greenwood, 178 111. 387; Nangle vs. Midlany, 113 App. 457. That he had knowledge of the fact that his marriage would in- validate his will, and if his desire and intention remained the same, he must execute another. Sloniger vs. Sloniger, 161 111. 270. Words presumed to be used in strict and primary sense, unless a contrary intention appears from context. Eiehards vs. Miller, 62 111. 417 ; XIV 111. Notes 1057, § 239. Language must be presumed to have been intended to have legal effect which law assigns it. Summers vs. Smith, 127 111. 645. Person is presumed to know and intend the effect of words he uses. Jones vs. Jones, 124 111. 254. It is not to be presumed that a testator intended by his will to accomplish that which the law would do without any will. Anderson vs. Anderson, 191 111. 100. Testator is presumed to know that unborn child not provided for in will would receive its share under statute, where not disin- herited. Lurie vs. Eadnitzer, 166 111. 609. Bequest of "all my property, wherever same may be," etc., raises presumption that testator intended to dispose of after ac- quired realty. Missionary Soc. vs. Mead, 131 111. 338. Upon devise of quarter section, except so many acres, presimip- tion is that devise embraces all land included in government sur- vey, but presumption may be rebutted by proof that testator had adopted a boundary by which number of acres would be limited. Smith vs. Denison, 112 111. 367. The presumption in favor of a per capita distribution yields readily in favor of a faint indication of the testator that the dis- tribution shall be per stirpes. Similarly, the presumption in favor of a per stirpes distribution, arising from the use of the words "heirs, heirs at law," etc., without the use of the words "to be equally divided," etc., will yield to a contrary intention on the part of testator, either expressed or implied. Baker vs. Baker, 152 App. 620. WILLS 1305 The law favors the vesting of estate rather than that the title shall be in abeyance. Alettler vs. Warner, 243 111. GOO; Flanner vs. Fellows, 206 111. 136; Jacobs vs. Ditz, 260 111. 98. Whether legal or equitable, Annstroiig vs. Barber, 239 111. 389. Where death of the first taker is coupled with a condition which may or may not happen, devise over will be presumed to refer to the death of the first taker at any time ; but this presumption yields to a contrary intention shown by the will. Winter vs. Dibble, 251 111. 200, TESTAMENTARY CAPACITY: What Constitutes: — In General: The mental capacity required in making deeds, contracts or transacting ordinary business is not essential to the making of a will, but it is sufficient if the testator understands the business in which he is engaged, his property, the natural objects of his bounty, and the disposition which he desires to make of his property. In re Estate of Weedman, 254 111. 504; Greene vs. Maxwell, 251 111. 335; XIV 111. Notes 1026, § 12. General rule is that a person who is capable of transacting ordi- nary business is also capable of making a valid will. If he is cap- able of buying and selling property, settling accounts, collecting and paying money or borrowing or loaning money, he must usually be regarded as capable of making a valid disposition of his prop- erty by will. Drum vs. Caps, 240 111. 524; Freeman vs. Easly, 117 111. 317; Meeker vs. Meeker, 75 111. 260. To constitute a sound and disposing mind, it is not necessary that the mind should be unbroken, unimpaired, unshattered by dis- ease, or otherwise, or that testator should be in full possession of his reasoning powers. So if testator be in a dying state, he has capacity if, when his attention is aroused, his mind acts clearly and with discriminating judgment in the act to be done and its rela- tions. McCoy vs. Sheehy, 252 111. 509; Campbell vs. Campbell, 130 111. 466; Bevelot vs. Lestrade, 153 111. 625. The test of testamentary capacity is, did testator at time of exe- cuting the instrument purporting to be his will, have sufficient mind and memory to enable him to understand the particular busi- ness in which he was then engaged? If he was able to remember who were the natural objects of his bounty, recall to mind his property and make disposition of it understandingly, according to some purpose or plan formed in his mind, he was possessed of testa- mentary capacity. Austin vs. Austin, 260 111. 299. The true inquiry in every case is, did the person whose testa- mentary capacity is questioned, have, at time of making his will, such mind and memory as enabled him to understand the busi- ness in which he was then engaged, and the effect of the disposition made by him of his property ? If he did, he was possessed of the sound mind and memory required by the statute. Owen vs. Crumbaugh, 228 111. 380; Johnson vs. Farrell, 215 111. 542, 1306 WILLS Testamentary capacity means capacity to understand effect of particular instrument in controversy. Uillman vs. McDanel, 222 111. 276. Capacity may be dependent to some extent on. amount of estate and complication of devise. Taylor vs. Pegram, 151 111. 106; Trish vs. Newell, 62 111. 196. — Insane Delusion: An insane delusion may be said to be a belief in a state or condition of things in the existence of which no rational person would believe. Louby vs. Key, 258 111. 558; Snell vs. Weldon, 243 111. 496; Schnei- der vs. Manning, 121 111. 376. An insane delusion is a belief in something impossible in the na- ture of things, or impossible under the circumstances surrounding the afflicted individual and which refuses to yield either to evi- dence or reason. Such a delusion does not exist unless it is one whose fallacy can be certainly demonstrated, for, unless such demonstration can be made, it can not be said no rational person would entertain the belief. Drum vs. Capps, 240 111. 524. A belief which a rational person may entertain, however erro- neous, does not constitute an insane delusion. Hutchinson vs. Hutchinson, 250 111. 170. If, without evidence of any kind, a testator imagines or con- ceives something to exist which does not, in fact, exist, and which no rational person would, in the absence of evidence, believe to exist, he is afflicted with an insane delusion. Owen vs. Crumbaugh, 228 111. 380. Admissibility of Evidence: — In General: It is the duty of the court to see whether par- ticular evidence is relevant or tends to prove the point at issue, and if the question involved is the testamentary capacity of the testator, all evidence not tending to throw any light upon that question, and which can only mislead the jury, should be rejected. Floto vs. Floto, 233 111. 605. It is improper to exclude all evidence as to capacity to transact ordinary business. Trubey vs. Eichardson, 224 111. 136. Where fraud, undue influence or want of testamentary capacity is charged, all the surrounding facts, including the bequest itself, its propriety or impropriety, its reasonableness or unreasonable- ness, in view of the situation, relations and circumstances of the testator, may be considered as bearing upon the issues thus raised. MeCommon vs. McCommon, 151 111. 428; Dowie vs. Sutton, 227 111. 183. Evidence as to testator's feelings towards children and cause therefor is admissible to show condition of his mind at time will was executed. Wilkinson vs. Service, 249 111. 146. Where probate of a will is resisted, on ground of mental in- capacity of testator and undue influence exercised by his wife, to whom the bulk of his property is given, any evidence is proper which tends to show testator's mental condition, the annoyance to which he was subjected by the continual importunities of his wife, his susceptibility to those in whose care he was, and his helpless- ness in their hands, from want of mental vigor induced by long WILLS 1307 illness, to resist any influenoo tliat might be brought to bear upon him. Eeynolds vs. Adams, 90 111. i;U. Financial condition of those having claim upon testator's bounty may be taken into consideration in connection with the will itself, in determining question of testamentary capacity. Healea vs. Keenan, 244 111. 484. Evidence that testator knew of financial condition of relative admissible to determine reasonal)leness of will. Dillman vs. McDanel, 222 111. 27(3. Oral evidence in reference to testator's not liolding an equitable title to all the lands which he was devising is admissible. On the question of mental capacity, it tends to show that his memory was good, his sense of justice unimpaired, that his judgment as to the best means of preventing subsequent litigation with those holding the eciuitable title was sound. Brownfield vs. Brownficld, 43 III. 147. So fact that testatrix misstated value of her property to scrivener is admissible on question of mental capacity. Waugh vs. Moan, 200 111. 298. — Declarations of Testator: Declarations are admissible to show testator's state of mind. Wilkinson vs. Service, 249 111. 146; XIY 111. Notes 1061, §259. _ Declarations of testator, while not admissible to modify will or to show it was executed under duress or undue influence, may be proven to show mental condition of testator. Norton vs. Clark, 253 111. 557 ; England vs. Fawbush, 204 111. 384. Admissible whether made before or after execution of will, so far as they tend to show mental capacity at time will was executed. Nieman vs. Sehnitker, ISl 111. 400; Hill vs. Bahrns, 158 111. 314. Declarations of testator with reference to a disposition of his property, contrary to the provisions of the will, are admissible up- on subject of his testamentary capacity, provided there is other proof of lack of testamentary capacity, otherwise they are not ad- missible. Hurley vs. Caldwell, 244 111. 448. Declaration that he had treated all his children alike are inad- missible to show incapacity to make later will. Hill vs. Barhus, 158 111. 314. While declarations of a testator are not admissible to show an express revocation of his will, or the fact that it was executed under duress or to prove undue influence, they may, nevertheless, be proven to show his mental condition at time of the execution of the will, or so near the time that same state of affairs must have still existed. Eeynolds vs. Adams, 90 111. 134. Declarations by testator, at different periods of his life, with reference to his intended disposal of his property, are admissible in evidence if consistent with the provisions of the will, but not if inconsistent therewith, except in so far as they may have a ten- dency to show mental condition of the testator. Cheney vs. Goldy, 225 111. 394. Verbal declarations of testator to the effect that his son man- aged his business in the country, and another person managed it 1308 WILLS in town, are admissible as bearing upon testator's mental condi- tion ; though such declarations are not evidence of their truth. Healea vs. Keenan, 244 111. 484. Contestant has a right to prove declarations of testatrix in so far as they are relevant to the question of her mental capacity, although they have occurred in conversations, and, necessarily, may prove so much of the conversations as will enable the jury to understand the declaration. Norton vs. Clark, 253 111. 557. On bill by daughter to contest her mother's will for undue influence and want of mental capacity, a conversation between the mother and daughter, in presence of a third person, before the will was executed, which concerns persons who are defendants to the bill, is admissible upon the question of mental capacity, with- out a special showing, in the first instance, that what was said by the daughter was necessary to an understanding of what was said by the mother. Garrus vs. Davis, 234 111. 326. A will executed in accordance with the provisions of statute cannot be destroyed by proof of the declarations of testator be- fore or after making the will, except in so far as such declarations bear upon the question of testamentary capacity. Owen vs. Crumbaugh, 238 111. 497. Where the alleged fact of the testator's belief in the infidelity of his wife is first brought out by contestants' evidence and is made one of the main premises of hypothetical question on the subject of testator's sanity, it is proper to permit, in rebuttal, proof of fact that testator had stated to witnesses, after investiga- tion of reports of his wife's infidelity, he believed them to be untrue. Floto vs. Floto, 233 111. 605. Declarations of testator are competent in contest involving valid- ity of will, to show state of testator's mind, but not to prove facts Wilkinson vs. Service, 249 111. 146; Baker vs. Baker, 202 111. 595; Eeynolds vs. Adams, 90 111, 134. — Inequality of Distribution: Inequality of distribution is not, of itself alone, a circumstance tending to show unsoundness of mind. Abrahams vs. Wooley, 243 111. 365; Nicewander vs. Nicewander, 151 111. 156; Meeker vs. Meeker, 75 111. 260; XIV 111. Notes 1029, §27. But if Other facts and circumstances are proven _ tending to show unsoundness of mind, then the inequality of distribution may be considered in connection with other evidence. Donnan vs. Donnan, 236 111. 341; Graham vs. Deuterman, 206 111. 378; Kaenders vs. Montague, 180 111. 300; Snell vs. Weldon, 243 111. 496. Former Wills: Former similar wills are admissible on ques- tion of mental capacity, and proof of sanity when executing such former wills is also competent. Nieman vs. Schnitker, 181 111. 400. Proof of other wills and declarations of testator, conforming substantially with the disposition of the property made by the WILLS 1309 will in question slionld he confined to wills and declarations made at a time when the testator was conceded to be sane. Dillman vs. McDanel, 222 111. 276. — Letters of Testator: Letters from testator tending to show a rational businesslike purpose to make a will substantially like the one in contest are competent as tending to show the mental condition of the testator. Baker vs. Baker, 202 111. 595. And although too remote in point of time, if standing alone, they are, nevertheless, admissible if the subject matter is repeated in other letters which are competent in point of time. Baker vs. Baker, 202 111. 595. Where alleged that testator was suffering from an insane delu- sion, a letter written by him to his sister a few months before the will was made, showing that he believed all women were at- tempting to poison him, and that his sister was one of his "mur- derers," is admissible in evidence without extrinsic proof as to where it was written or of its having been sent to the party ad- dressed. Dowie vs. Sutton, 227 111. 183. — Letters of Third Persons: Letters to a testator are not com- petent to prove his mental condition, unless there is proof of some act by him with reference to them, which the contents of the letters are admissible to explain. Snell vs. Weldoii, 239 111. 279. Letters found in an envelope which had "spirit communica- tions" marked upon it in handwriting claimed to be the testator's, are not admissible where there is no evidence that testator ever acted upon their contents in any way, or approved thereof, and there is nothing in them having any reference to the will. Cnimbaugh vs. Owen, 238 111. 497. — Appointment of Conservator: The records of the county court showing the appointment of a conservator for the testator some years after the execution of the will in contest are properly denied admission. Entwistle vs. Meikle, 180 111. 9. Evidence that a conservator was appointed for testatrix two years or more after the wull was made is inadmissible. Wetzel vs. Firebaugh, 251 111. 190. Record showing appointment of conservator before making of will is not admissible to prove inability to make a will. In re Estate of Weednian, 254 111. 504; Fittard vs. Foster, 12 App 132; Heirs of Critz vs. Pierce, 106 111. 167. — As to Mental Condition of Blood Relatives: If there is other evidence tending to show mental unsoundness of testator, it is com- petent to show insanity of collateral blood relatives, not further removed than uncles and aunts, without making proof that their insanity was hereditary in character. Dillman vs. McDanel, 222 111. 276. _ - And it is error to refuse the admission of such testimony. Martin vs. Beatty, 254 111. 615. Where it was shown that testator had three strokes of paraly- sis, one before making his will, from effects of which he partially recovered, and the second shortly after making his will, and that 1310 WILLS the last resulted in his death, there was no error in excluding proof that disease had affected testator's ancestors and blood relatives, as that could not show the effect of the malady on the mind. Meeker vs. Meeker, 75 111. 260. Moral Character: Not an element to be considered on question of testamentary capacity. Wickes vs. Walden, 228 111. 56. Evidence which tends only to blacken reputation of testator is not admissible. Snell vs. Weldon, 239 111. 279; Carpenter vs. Calvert, 83 111. 62. Evidence which tends to show that many years before the will was executed the testator had been guilty of the theft of small articles from his neighbors is not admissible. Graham vs. Deutermau, 217 III. 235. Proof of dissolute or profligate character or that conduct was disgraceful and reprehensible is not admissible. Snell vs. Weldon, 239 111. 279. — Opinion and Expert Evidence: Opinion of witness as to whether testator had capacity to execute will is inadmissible, whether such witness is an expert or not. Wetzel vs. Firebaugh, 251 111. 190; Garrus vs. Davis, 234 111. 326; Keithly vs. Strafford, 126 111. 507; Carpenter vs. Calvert, 83 111. 62. Witness cannot be asked "whether or not testator was able to carry in his mind and memory the nature and extent of his prop- erty," nor "whether or not he was able to understandingly exe- cute a will. " _ , Baily vs. Beall, 251 111. 577; Baker vs. Baker, 202 111. 59o; Taylor vs. Pegram, 151 111. 106. Nor whether "testatrix was able to understand the business in which she was engaged." Wetzel vs. Firebaugh, 251 111. 190. But witness may be asked "whether or not testatrix had mind enough to know what property she had or who were her relatives." Voodry vs. Univ. of 111., '251 111. 48. And whether or not at time of making the will testator wa3 capable of transacting ordinary business. Keithley vs. Stafford, 126 111. 507. And witnesses may be cross-examined as to what they mean by ' ' ordinary business. ' ' Kowcliffe vs. Belson, 261 111. 566. But not "whether the witness did not transact ordinary busi- ness with testator." Healea vs. Keenan, 244 111. 484. Opinion as to mental capacity may be given by non-expert wit- Mayville vs. French, 246 111. 434; Craig vs. Southard, 148 111. 37; XIV 111. Notes 1032, § 50. But he must first detail facts and circumstances upon which opinion is based. Brainard vs. Brainard, 259 111. 613. Testimony of a witness that testator "acted foolish" when he went about the house should be stricken out on motion, where witness states no facts upon which her conclusions are based. And a statement by testator's sister, when asked what she thought of the testator's mental condition from her talks with him, that "me WILLS 1311 and my sister just talked and had a good cry over it, we seen his mind was gone" should he stricken out on motion. Wallace vs. Whitman, 120J ill. 59. Whether a non-expert witness has sufficient knowledge of another to express an opinion on his mental condition is to be determined by the court. Martin vs. Beatty, 254 111. 615; Graham vs. Deuterman, 244 111. 124. May detail facts and circumstances from which the jury may form an opinion and then give his own conclusion in the form of an opinion. Graham vs. Deuterman, 244 111. 124; Wallace vs. Whitman, 201 111. 59 ; Snell vs. Weldon, 239 111. 279. A witness may state any fact known to him in relation to testa- tor's capacity to transact ordinary business, and all he knows in regard to the vigor and strength of his mental powers. Neigh- bors and acquaintances, if men of good common sense, are com- petent to give their opinions as to his mental capacity. Taylor vs. Pegram, 151 111. 106. Opinions of witnesses that a testator was not competent to tran- sact ordinary business affairs are properly admitted though they had never seen him transact any business, where they testify they had observed that he never transacted any business, but that his wife or some other member of the family always acted in such affairs, even though the testator was present and was the party directly interested. Ring vs. Lawless, 190 111. 520. The fact that testatrix did not discuss business affairs or rela- tives does not disqualify witness from giving opinion as to mental capacity. Wetzel vs. Firebaugh, 251 111. 190. — As to Time of Mental Capacity: Proper to show mental ca- pacity of testator both before and after the execution of pur- ported will. A^oodry vs. Univ. of 111., 251 111. 48. Mental condition of the testator after will had been executed can be shown only where evidence will tend to show his condition at that time, and not if subsequent condition appears to have arisen from a new cause which was not in operation when will was executed. Todd vs. Todd, 221 111. 410. Testimony which had reference to condition of the mind of the testatrix long after she made a will, and which did not tend to show unsoundness of mind as would invalidate the writing of her will, is properly rejected. Dickie vs. Carter, 42 111. 377. Facts shown, whether anterior or subsequent, depend for their force upon the clearness and certainty with which they tend to demonstrate the condition of mind and memory at the very time of execution of will. Trubey vs. Richardson, 224 111. 136. A party seeking to establish a will must prove testator was of disposing mind and memory at time he made it, and this can- not be shown merely by proof that he was so at some anterior period. 1312 WILLS Defendants having put in evidence testimony of subscribing witnesses, given when will was admitted to probate, it then devolves upon plaintiff to show incompetency of testator, by proof suffi- cient to overcome prima facie case made by testimony of sub- scribing witnesses. Holloway vs. Galloway, 51 111. 159. Introduction of evidence of testator's mental capacity two years anterior to execution of will may be made. Yoodry vs. Univ. of 111., 251 111. 48. But testator's actions eighteen years before supposed will was made are too remote. Healea vs. Keenan, 244 111. 482. Proponents having testified as to testator's mental capacity to business transactions during the period of several years before and after execution of the will, contestants cannot, on cross examina- tion, extend their inquiry to cover the full period up to time of testator's death. Eutwistle vs. Meikle, 180 111. 9. Proponents having been permitted to introduce evidence as to testator's mental condition covering a period prior to and long subsequent to execution of the will, contestants may introduce evidence covering same period. Petefish vs. Becker, 170 111. 448. And may call for any particular act or conduct of testator ob- served by witness. Petefish vs. Becker, 176 111. 448. Burden of Proof: The proponents have the burden of proof in the first instance, of establishing prima facie the capacity of the testator. Hollenbeck vs. Cook, 180 111. 65; Wilbur vs. Wilbur, 129 111. 392; XIV 111. Notes 1029, § 30. Testimony of subscribing witnesses as to sanity of testator is sufficient to make out a prima facie case in support of validity of the will ; the burden is then upon the contestants to show the con- trary. Wilkinson vs. Service, 249 111. 146; Waters vs. Waters, 222 111. 26; Baker vs. Baker, 202 111. 595; Pendlay vs. Eaton, 130 111. 69. Contestants must show incapacity by preponderance of the evi- dence. Adams vs. M. E. Church, 251 111. 260. It is not sufficient that evidence raises a doubt as to the testator's sanity. Entwistle vs. Meikle, 180 111. 9; Taylor vs. Pegram, 151 111. 106. The evidence of incapacity must clearly preponderate to author- ize setting aside of a will. Norton vs. Clark, 253 111. 557. And contestants have burden of overcoming added presumption of sanity by a preponderance of evidence. Egbers vs. Egbers, 177 111. 82. An instruction should give proponents benefit of presumption. Todd vs. Todd, 221 111. 410. Burden is upon party asserting validity of will to make proof of testamentary capacity; but when such proof is made, the law adds the presumption of sound mind, which applies to all men, and evidence of want of testamentary capacity must be sufficient WILLS 1313 to neutralize both the testimony in favor of testamentary capacity and the presuini)lion ot" law. Johnson vs. Johnson, 1M7 111. 86; Entwistle vs. Meikle, 180 111. 9; Carpenter vs. Calvert, 83 111. 62; Trish vs. Newell, 62 111. 196. While proponents may make a prima facie case by testimony of subscribing witnesses or certificate of oath of the attesting witnesses at time of probate, yet they are not limited to either of such methods, but may prove mental capacity of testatrix and execution of will by an}' legitimate evidence. Voodry vs. Univ. of 111., 251 111. 48; Kaul vs. Lyman, 259 111. 31. Weight and Sufficiency: — Ability to Transact Business: Person incapable of transact- ing any business whatever is lacking in testamentary capacity, but iiaability to transact ordinary business does not necessarily de- prive one of testamentary capacity. Hurley vs. Caldwell, 244 111. 448. The inability of a testator to perform or transact ordinary busi- ness is not a correct or reliable test of testamentary capacity. Sinnet vs. Bowman, 151 111. 146; Eowclift'e vs. Belson, 261 111. 566. Ability to transact ordinary business is too stringent a test of testamentary capacity. Waugh vs. Moau. 200 111. 298; Ring vs. Lawless, 190 111. 520. The disposal for little or no consideration, and without appar- ent reason, of much valuable property by testator, after a severe illness which left him partly paralyzed, to a person to whom he was under no obligation, whereas prior to his illness he had been very close in his dealings and penurious in his habits, indicates a marked change of mentality and tends to show unsoundness of* mind. Dillman vs. MeDanel, 222 111. 276. '' — Old Age and Physical Suffering: To sustain a charge of want of sufficient mental capacity to make a will, something more than physical suffering, disease and old age must be shown. Beemer vs. Beemer, 252 111. 452; Waters vs. Waters, 222 111. 26; i Woodmen vs. 111. Bank, 211 111. 578. Advanced age and loss of memory do not, of themselves, con- stitute incapacity. Johnson vs. Farrell, 215 111. 542; Schmidt vs. Schmidt, 201 111. 191. Sickness, even to extent of being in a dying condition, does not prove want of capacity to make a will, if, when aroused, the mind of testator acts clearly in respect to the thing being done. McCoy vs. Sheehy, 252 111. 509; Bevelot vs. Lestrade, 153 111. 625. Evidence that testator's physical and mental faculties had failed to some extent ; that he sometimes failed to recognize slight ac- quaintances at first sight ; that he entertained religious views some- what peculiar though common to many other people ; that he preferred fasting to medicine for indigestion ; does not show want of testamentary capacity, where there is no evidence of any actual occurrence showing such want of capacity. Wallace vs. Whitman, 201 111. 59. Proof that testator and grantor was of advanced age, that his eye-sight, sense of hearing and general health w^ere much impaired, and that his mind, sjmipathizing with his bodily infirmities, was Ev.— 83 1314 WILLS weaker than it had formerly been, will not alone justify setting aside his will and deeds for mental incapacity. Kelley vs. Kelley, 168 111. 501. Hardening of arteries is not in itself sufficient to destroy testa- mentary capacity. Drum vs. Capps, 240 111. 524. — Belief in Christian Science: Belief in Christian Science does not destroy capacity. Trubey vs. Eichardson, 224 111. 136. — Belief in Swedenhorgianism: Belief in Swedenborgianism and enthusiasm in promulgating its faith, furnish no evidence of monomania, insane delusion or insanity. Scott vs. Scott, 212 111. 597. — Belief in Spiritualism: Is not insanity, and no evidence of want of testamentary capacity. Cnimbaugh vs. Owen, 228 111. 380. But where through that belief, one is led into the delusion that another is a divinity or gifted with supernatural powers and a will is prompted by that delusion, it cannot be sustained. Orchardson vs. Cofield, 171 111. 14. Before a will can be set aside upon the ground that it was made by alleged spirit directions, it must be shown not only that testator believed the alleged directions, but that he so yielded to them that the will was not the result of his deliberate judgment. Crumbaugh vs. Oven, 238 111. 497. — Prejudice and Antipathies: Prejudice against natural ob- jects of person's bounty is not necessarily an insane delusion. Drum vs. Capps, 240 111. 524; Bauchens vs. Davis, 229 111. 557; Schmidt vs. Schmidt, 201 111. 191; Huggins vs. Drury, 192 111. 528. While injustice, unfairness, prejudice and anger without reason- able cause do not disqualify a person from making a valid will, still where such manifestations appear habitually in respect to same subject without any reason, and are adhered to after their falsity is demonstrated, they become strong evidence of mental de- rangements, and evidence of their existence without cause, in respect to an only son, is of more weight than if parties were not closely related. Snell vs. Weldon, 243 111. 496; XIV 111. Notes 1028, §24. Proof of declarations of the testatrix to the effect that she was afraid of being poisoned is not evidence' of an insane delusion, without proof of such facts and circumstances as not only would show she had no grounds for her fear, but also that it would not, under the circumstances, have arisen in a rational mind. And it is not necessarily evidence of an insane delusion that the testatrix was afraid of a drunken man, even though he be her own son, nor that she should fear that in his drunken mad- ness he might break any law, human or divine. Bradley vs. Palmer, 193 111. 15. — Senile Dementia: Does not necessarily establish want of testamentary capacity. Graham vs. Deuterman, 244 111. 124. "''^'''^^Snicide: The act of self destruction cannot judicially be regarded as proof, per se, of insanity. It is but a fact to be con- sidered, with all the other facts in the case. Wilkinson vs. Service, 249 111. 146; Crum vs. Thornley, 47 111. 192. WILLS 1315 — Expert and Opinion: Opinion of non-expert witness that testator is not of sound mind and memory is entitled to no weight where he states no facts or circumstances which would induce a reasonable belief of unsoundness of mind. Omission of facts and circumstances renders such testimony practically worthless. Brainard vs. Brainard, 259 111. 613. Opinions of witnesses that testator was mentally incompetent to transact business or make a will, based largely upon the fact that testator was near-sighted and feeble, are entitled to little weight, where the evidence shows that at time covered by testis mony of the witnesses testator did transact business and fully understood the business in which he was engaged when making the will, Graham vs. Deiiterman, 217 111. 235. The value of non-expert opinion as to testator's testamentary capacity depends upon means of knowledge of the witnesses, the facts upon which their opinions are based and their capacity to correctly interpret such facts. Baker vs. Baker, 202 111. 595. Opinions of witnesses that a testator was forgetful and weak- minded are entitled to but little weight in the face of positive evi- dence of many intimate business acquaintances that during such time such conditions were claimed to exist, the testator successfully pursued his occupation, and was a sober, industrious, capable busi- ness man. Schmidt vs. Schmidt, 201 111. 191. Opinions of physicians on question of mental capacity are en- titled to no greater weight than opinions of laymen who are men of good common sense and judgment. Austin vs. Austin, 260 111. 299; Carpenter vs. Calvert, 83 111. 62. All persons having means of observation are permitted to testify concerning the capacity of a testator so far as it may tend to shed light upon the issue, and may give their opinions as to his men- tal capacity, based upon such observation. The weight or effect of such opinions depends upon the means of knowledge of the witness and the facts upon which they are based, possible of delinea- tion, and the capacity of witness to correctly interpret what he has observed. Therefore, the facts upon which the opinion is based may be gone into, either to sustain and give force to the opinion, or to discredit it, and the inquiry as to the testator's mental condition should not be limited to the mere question as to whether he was able to transact ordinary business, but witness should be allowed to state and describe his mental condition, his memory, judgment and facts observed by the witness. Craig vs. Southard, 148 111. 37. Where a preponderance of the evidence shows that a testator, at time of making his will, was in full possession and proper exercise of all his mental faculties, an opinion of a medical ex- pert, based upon an hypothesis or state of facts not inconsistent with legal sanity, that the testator was insane is of little weight, and does not, of itself, justify the court in refusing to direct a verdict for the proponents. Owen vs. Crumbaugh, 228 111. 380. 1316 WILLS — Omission to Name Child : The omission to name a child in a last will does not, of itself, prove that the testator was incapaci- tated, nor will such omission destroy its validity. Snow vs. Benton, 28 111. 306; Giaybeal vs. Gardner, 146 111. 337. — Holographic Will: An holographic will which is rational upon its face, and in accord with the existing facts which sur- rounded the testator at time of its execution, establishes, within itself, testamentary capacity. Hannaut vs. Penstone, 255 111. 274. UNDUE INFLUENCE: What Constitutes: '■-ui^In General: Undue influence is wrongful influence. Hurd vs. Eeed, 260 111. 154; Waters vs. Waters, 222 111. 26; XIV 111. Notes 1037, §96. Undue influence is any improper or wrongful constraint, machi- nation or urgency of persuasion whereby the will of a person is overpowered and he is induced to do or forbear an act which he would not or would do if left to act freely. Smith vs. Henline, 174 111. 184. Must be directly connected with the execution of the instrument and be operative when Avill was made. It must be influence espe- cially directed toward procuring the will in favor of a particular beneficiary, and be such as to destroy the freedom of the testator's will and render instrument obviously more the offspring of the will of others than his own. Bowles vs. Bryan, 254 111. 148; Snell vs. Weldon, 239 111. 79. — Free Agency: Undue influence must be such as to deprive the testator of free agency. Compher vs. Browning, 219 111. 429; Johnson vs. Farrell, 215 111. 542; Woodmen vs. 111. T. & S. Savings Bank, 211 111. 578; Taylor vs. Pegram, 151 111. 106. — By Whom Exercised: Undue influence is a species of con- structive fraud. It is immaterial by whom the undue influence is exercised, whether by a beneficiary or an outsider. ■ Smith vs. Henline, 174 111. 184; Cheney vs. Goldy, 225 111. 394. — When Operative: Must be directly connected with the execu- tion of the instrument and be operative when the will was made. Hurd vs. Eeed, 260 111. 154; Bowles vs. Bryan, 254 111. 148; Snell vs. Weldon, 239 111. 279; Larabee vs. Larabee, 240 111. 576; Floto vs. Floto, 233 111. 605; Wickes vs. Walden, 228 111. 56. — Affection and Persuasion: Influence secured through affec- tion is not undue influence. Waters vs. Waters, 222 111. 26; Nieewander vs. Nicewander, 151 111, 156; Bevelot vs. Lestrade, 153 111. 625. Mere persuasion or advice, however importunate, is not undue influence. Thompson vs. Bennett, 194 111. 57; Wileoxon vs. Wileoxon, 165 lU, 454; Yorty vs. Webster, 205 111. 630. But it would be if it went to the extent of depriving the testa- tor of his free agency. Dowie vs. Sutton, 227 111. 183. i So evidence showing only that in ordinary business affairs testa- tor acted under advice of devisee is inadmissible since that alone would not tend to show undue influence in executing will, Brownfield vs. Brownfield, 43 111. 147. WILLS 1317 Admissibility of Evidence: — Inequality of Distribution: AVhile inequality of a distribu- tion is not in itself evidence of undue influence, it may be con- sidered as a circumstance in connection with other evidence. Donnan vs. Donnaii, 25(3 III. L>44; Si-hniidt vs. Schmidt, 201 111. 191; Francis vs. Wilkinson, 147 111. 370: Nicewander vs. Nicewander 151 111. 156. But not if standing alone. Abrahams vs. Wooley, 243 111. 3(55. It is not shown by fact that will leaves all to certain children, disinheriting others. Waters vs. Waters, 222 111. 26. All the surrounding facts, including bequest itself, its pro- priety, or impropriety, its reasonableness or unreasonableness, in view of the situation and circumstances of testator, may be con-; sidered. MeCommon vs. McCommon, 151 111. 428. Whether will is just, wise and proper is immaterial. Carpenter vs. Calvert, 83 111. 62. — Conduct of Beneficiaries: As bearing on the subject of undue, influence, proof of previous similar conduct of the party claimed to have exercised such undue influence is admissible, as tending to show his influence over the testator. England vs. Fawbush, 204 111. 384; Wilbur vs. Wilbur, ]38 111. 446. Evidence that chief beneficiary in a will had made arrangements in advance for having it drawn, sent for the scrivener and the witnesses, talked with, testator in his sick room about the will, wrote it himself and read it to testator, corrected the testator as to amount of a certain legacy, and held testator up in bed while he signed the will, is sufficient to go to the jury upon question of undue influence. England vs. Fawbush, 204 111. 384. Where a will is written or procured to be written by a person largely benefited by it, such circumstances excite stricter scrutiny and require stricter proof of volition and capacity. The proof re- quired in such cases must be such as to fully satisfy the court or jury that the testator knew what he was doing and what disposi- tion he was making of his property when he made the will. The active agency of beneficiary of a will in procuring it to be drawn, especially in the absence of those who have at least equal claims upon the justice of the testator, and where testator is enfeebled by old age and disease, is a circumstance which indicates probable exercise of undue influence. Where the mind is wearied and debili- tated by long continued and serious and painful sickness, it is susceptible to undue influence and is liable to be imposed upon by fraud and misrepresentations. Donnan vs. Donnan, 256 111. 244. Fact that proponents, at time of preparation of wiU, requested those who witnessed it to examine the testator, with the view of determining whether, in their opinions, he was of sound min(L does not, of itself, cast doubt upon his capacity. Brainard vs. Brainard, 259 111. 613. — Declarations of Testator: The declarations of a testator are not admissible as proof of facts stated, a,nd he cannot invalidate his 1318 WILLS will by declarations made either before or after its execution. They are not admissible to show that a will was executed under duress or undue intluenre, or to show fraud. Norton vs. Clark, 253 111. 557; England vs. Pawbush, 204 111. 384;' Bevelot vs. Lestrade, 153 111. C25; Dickey vs. Carter, 42 111. 376; XIV 111. Notes 1039, § 112. But declarations at different periods of life, as to the views and intentions of the testator in the disposition of his property may be introduced, if consistent with the provisions of the will, but are not competent to be considered to invalidate a will as having been made under undue influence. Cheney vs. Goldy, 225 111. 394; Compher vs. Browning. 219 111. 429. Made before the execution of the will, are admissible to show he had disposed of his property in conformity with expressed intentions, on contest of will for undue influence. Wombacher vs. Barthehne, 194 111. 425; Harp vs. Parr, 168 111. 459; Taylor vs. Pegram, 151 111. 106. Declarations of testator are not admissible to show will was executed under duress or undue influence, or to show fraud, but may be proven where they tend to show mental condition at time of execution of will, or so near the time that the same state of affairs must have existed. Norton vs. Clark, 253 111. 557; England vs. Fawbush, 204 111. 384. Declarations of testator, made either before or after the will was executed, which are in conflict with its terms, are not admissible even on question of undue influence. Waters vs. Waters, 222 111. 26. — Admissions of Devisees: Admissions and declarations of devisees and legatees are inadmissible to affect the rights of those claiming under the will. Kellan vs. Kellan, 258 111. 256; Cimiff vs. Cuniff, 255 111. 407; Campbell vs. Campbell, 138 111. 612. Are inadmissible to show undue influence. Campbell vs. Campbell, 138 111. 612; Cuniff vs. Cuniff, 255 111. 407. Or mental incapacity or insanity. McMillan vs. McDill, 110 111. 47. Except where legatee is sole beneficiary interested in sustaining will. Egbers vs. Egbers, 177 111. 82; McMillan vs. McDill, 110 111. 47; Mueller vs. Eebham, 94 111. 142 ; Brainard vs. Brainard, 259 111. 613, Or except where admissions are of sole complainants. Eowcliffe vs. Belson, 261 111. 566. And if deceased, admissible against one who had succeeded by devise on the ground of privity of estate. Mueller vs. Eebham, 94 111. 142. Such evidence is incompetent as against the party making them as it could not affect the issue without affecting the other defend- ants. McMillan vs. McDill, 110 111. 47. — Prior Wills: Prior wills and other declarations of the testa- tor in substantial harmony with the provisions of the will in con- test are admissible, as tending to rebut charge of undue influence. Freund vs. Becker, 235 111. 513; Kaendors vs. Montague. 180 111. 300; Taylor vs. Pegram, 151 111. 106 ; Harp vs. Parr, 168 111. 459. But a previous will, the provisions of which are entirely variant from those of the one in controversy, is inadmissible. Should such WILLS 1319 a will show an approximation in its provisions to those of the will in contest, it would be admissible. Rowe vs. Taylor, 45 111. 485. — Letters: Letters of testator tending to sliow a rational and business-like purpose to make a will in sul)staiitial compliance with one in contest are admissible to disprove charge of undue influence Baker vs. IJaker, 202 111. 595. Letters by testator to his devisee are admissible as tending to show affection of former for latter. Slingloff vs. Bruiier, 174 111. 561. When complainant charges that defendant devisee made false statements to testatrix in regard to his habits, to poison her mind against him, letters of complainant to testatrix are admissible to show her independent knowledge of the facts. Donnan vs. Doniiaii, 250 111. 244. — Contracts of Testator: Where undue influence by wife is alleged, a contract between testator and his wife, made several months before their marriage, concerning the terms of her em- ployment by him as a housekeeper, and containing nothing to show the wife exercised undue influence in procuring the subse- quent execution of the will is not admissible. Smith vs. Smith, 168 111. 488. A contract between testatrix and a niece, relative to taking care of testatrix in case she became incapacitated, is competent on ques- tion of undue influence only, and not as to capacity to make a will. Wetzel vs. Firebaugh, 251 111. 190. _ — Illicit Relations: Existence of illicit relations may be con- sidered to determine Avhether influence was undue. Snell vs. Weldon, 239 111. 279. May be considered in connection with proof tending to show constraint and interference. Smith vs. Heuline, 174 111. 184. — Friendly Relations: Evidence of friendly relations between testator and daughter whom he practically disinherited, and the care bestowed upon him by her, is admissible in connection with the intrinsic evidence of the will itself. Piper vs. Andricks, 209 111. 564. So declarations showing such kindly relations are admissible but not to invalidate the will. Bevelot vs. Lestrade, 153 111. 625. — Opinions: Whether a certain person could use any unusual influence over the testator and whether witness had ever seen any such person use influence over him are not proper questions, as such conclusions should be drawn, if at all, by the jury, from facts shoAvn and not by the opinions of witnesses. Larabee vs. Larabee, 240 111. 576; Michael vs. Marshall, 201 111. 70. Proof that testatrix was a woman who was easily influenced and susceptible to flattery is not admissible, that matter being one of mere opinion or conclusion on the part of the witness. Compher vs. Browning, 219 111. 429. Witnesses should not be asked whether there was any fraud, duress or undue influence. Adams vs. M. E. Church, 251 111. 268. It is not proper to allow witnesses to express opinions as to 1320 WILLS whether supposed influence of one of the devisees over the testator sprang from affection or fear. Witness should state the facts, leaving the jury to draw inferences therefrom, j. : . CarpeDter vs. Calvert, 83 111. 62. .;^i.^ — Knowledge of Contents: Knowledge of contents may he shown by proof that testatrix told subscribing witnesses that she had read it and that it was as she M^anted it. Swearingen vs. Inman, 198 111. 255. — Circumstantial Evidence: Undue influence may be proven by circumstantial evidence. Lord vs. Eeed, 254 111. 350. Direct or positive evidence of undue influence in procuring the execution of a will is not required, but in absence of such proof, there must be evidence of facts from which inference of existence of undue influence may be naturally and reasonably drawn. ^i ./i, Beemer vs. Beemer, 256 111. 312; Bowles vs. Bryan, 254 111. 148; Dowie vs. Sutton, 227 111. 183; XIV 111. Notes 1040, §114. — Allegations and Proofs: A will can be impeached only upon the particular grounds alleged in the bill. Huffman vs. Graves, 245 111. 440; Swearingen vs. Inman, 198 111. 255; Flinn vs. Owen, 58 111. 111. Complainant in bill is confined to charges made by bill. Waters vs. Waters, 222 111. 26; Purdy vs. Hall, 134 111. 298. Presumptions : Proof of testator's signature is prima facie evidence that he understood the contents. Todd vs. Todd, 221 111. 410. A testator is presumed to have understood the nature and con- 'fpTii's of Viis will Jones vs. Abbott, 235 111. 220; Compher vs. Browning, 219 111. 429. Irrespective of his ability to read or write. ■ Doran vs. Mullen, 78 111. 342 ; Wombaeher vs. Barthelme, 194 111. 425. Presumption is in favor of a will when person who is provided for therein is one with whom testator had maintained intimate and affectionate relations during his life. A'lU iih Waters vs. Waters, 222 111. 26; Harp vs. Parr, 168 111. 459. Illicit relation, of itself, does not raise presumption of undue influence. ■^'■- Norton vs. Clark, 253 111. 557; Smith vs. Henline, 174 111. 184. No presumption that a will made by a parent in favor of a child was procured by the child's undue influence arises from the rela- tion, in absence of evidence that a confidence was in fact reposed in the child. ; ■ ^ Huffman vs. Graves, 245 111. 440; Bisliop vs. Hilliard, 227 111. 382. Confidential relation of beneficiary to testator does not raise inference of undue influence. f Michael vs. Marshall, 201 111. 70; Brownfield vs. Brownfield, 43 111, 147. Proof of a fiduciary relation between testator and principal dev- isee, who was dominant party to the relation, casts upon devisee burden of overcoming presumption of undue influence, but does not change the rule that, upon the whole case, burden is on con- testant to establish undue influence by a preponderance of evidence. Weston vs. Teufel, 213 111. 291. WILLS 1321 Burden of Proof: Burden of proving undue influence is upon party alleging, Kellan vs. Kellan, 25S 111. 256; Lord vs. Eeed, 254 111. 350; Swear-j ingen vs. Inman, 198 111. 255. It is tantamount to fraud, and like it, must be proven by party alleging it. Eowe vs. Taylor, 45 111. 485. General rule as to gifts or conveyances to one standing in a fiduciary relation is not applicable to wills. Michael vs. Marshall, 201 111. 70; Cf. Weston vs. Teufel, 213 111. 291. In order to cast upon one standing in confidential relation- ship with testator burden of proving absence of fraud or undue influence in making a will, such person must be shown to have been directly connected with making of the will, in some way, and it is not enough to show he was present in the house when will was executed. In re Will of Barry, 219 111. 391; English vs. Porter, 109 III. 285. Weight and Sufficiency: Where will is j^roeured by person to be benefited by it, strict proof of volition is required. Donnan vs. Dounan. 256 111. 244; Cheney vs. Goldy, 225 111. 394; England vs. Fawbush, 204 111. 384. i Facts shown must be inconsistent with hypothesis of innocence^ Compher vs. Browning, 219 111. 429. Failure of complainants, in contesting will for undue influence, to connect beneficiary with making of will either by agency, pro- curement, suggestion or knowledge, is a strong circumstance indi-t eating absence of undue influence. Harp vs. Parr. 168 111. 459. The fact that a man may have married a woman for the selfish object of acquiring an interest in her property is not, of itself, any proof of subsequent exercise of undue influence by him in pro- curing his wife to draw a will in his favor. Thompson vs. Bennett, 194 111. 57. Dependence of testator upon his wife, caused by his enfeebled physical condition, and her kindness to him, would naturally lead to belief that she would possess great influence over him ; but that, in connection with unequal distribution of his property, will not be sufficient to overcome the presumption that her influence was not improperly used. Meeker vs. Meeker, 75 111. 260. Proof that testatrix, who was old and feeble, reposed great con- fidence in her son, who acted as her agent and procured his attorney to draw the will ; that the son and attorney were alone with testatrix at that time, and will made the son practically the only beneficiary of a large estate, whereas other children and grandchildren were given but small amounts, establishes prima facie the charge of undue influence by the son. Leonard vs. Burtle, 226 111. 422. EXECUTION: Form: The law does not prescribe any particular form for a will. Gnmp vs. Gowans, 226 111. 6.35. It is not necessarily an objection to a will that it is written on 1322 WILLS several pieces of paper. Such fact is not fatal to the validity of the will. All that is required is that all the separate sheets of paper should be in the room and in the presence of attesting wit- hgssgs Harp vs. Parr, 168 111. 459; Palmer vs. Owen, 229 111. 115; XIV 111. Notes 1034, § 73. The law indulges no presumption as to the condition of an in- strument when it was executed, or whether there has been a subse- quent change. Webster vs. Yorty, 194 111. 408. Declaration: The law does not require that a party executing a will make a declaration that it is his will. Robinson vs. Brewster, 140 111. 649; Dickie vs. Carter, 42 111. 376, Signature: ^ h > The signature of the testator is just as effective when he makes his mark as when he signs his name. Bevelot vs. Lestrade, 153 111. 625; Eobinson vs. Brewster, 140 111. 649. The law makes no requirement in order to make a valid will that it be signed by testator in his own hand. The name may be signed by some one else by his or her direction, if it is acknowl- edged in presence of two witnesses. Elston vs. Montgomery, 242 111. 348. Proof of physical condition of testator showing he could not have signed it, is competent on appeal from order of probate, to con- tradict subscribing witnesses. Craig vs. Trotter, 252 111. 228. The presumption is that a person able to write, and under no physical disability, would personally sign his will. Elston vs. Montgomery, 242 111. 348. The fact that a will contains the clause, "1 have hereunto set my hand and seal," does not necessarily import testatrix signed will with her own hand ; nor require the signature to be proven to be her own handwriting, even though attesting witnesses are dead when will is offered for probate. Elston vs. Montgomery, 242 111. 348. Proof tending to show that signature to the will Mas not in the handwriting of the testatrix does not tend to overcome the prima facie case made by attestation clause, and proof that the signatures of the witnesses were genuine. Elston vs. Montgomery, 242 111. 348. Acknowledgment : It is not necessary that attesting watnesses see signature of testator upon face of the will, nor that an acknowledgment of sig- nature be made to them by testator. The statutory requirement is satisfied if testator acknowledged execution of will, and such acknowledgment need not be in language. Any act, sign or ges- ture of testator will suffice, which indicates an acknowledgment of the will with unmistakable certainty. ' Elston vs. Montgomery, 242 111. 348; In re Will of Barry, 219 111. 391; Gould vs. Theo. Seminary, 189 111. 282. Proof of either signing or acknowledging in presence of wit- nesses is sufficient, and proof of both is not required. Webster vs. Yorty, 194 111. 408. WILLS 1323 Where testator requests witnesses to attest his will, this is suffi- cient to authorize inference that he had executed the paper as a will and is equivalent to an acknowledgment that he had signed paper as a will. Harp vs. Parr, 168 111. 459. Where person who drew the will, and who superintended its execution, spoke of it as testator's will in his presence, and re- quested witnesses in the testator's presence to sign it as his will, it is sufficient. The silence and presence of the testator give con- sent to these declarations on the part of the person and amount to an acknowledgment by testator of the will as his act and deed. Harp vs. Parr, 168 111. 459. Where attestation clause is read in presence of testator and attesting witnesses, and thereupon testator handed witnesses the pen and saw them sign as such, the acknowledgement is sufficient though testator uttered not a word. Allison vs. Allison, 46 111. 61. Necessity of Witnesses: Attesting witnesses are regarded, in law, as persons placed around the testator in order that no fraud may be practiced upon him in the execution of his will, and to judge of his capacity. Smith vs. Goodell, 258 111. 145. It is necessary that there be two witnesses to make an instru- ment a valid will. Highland vs. Highland, 109 HI. 366; Gump vs. Gowans, 226 HI. 635. The law requires two. Sloan vs. Sloan, 184 111. 579. Requirement is the same to nuncupative will. Arnett vs. Arnett, 27 111. 247. And it is necessary that such witnesses sign the instrument. An attesting witness must be a subscribing witness, and it is not competent to prove a will by a person who was present and wit- nessed its execution but did not sign as an attesting witness. Calkins vs. Calkins, 216 111. 458; Sloan vs. Sloan, 184 lU. 579. So on appeal to circuit court from order denying probate, a third party who was present at the execution and attestation of the will, cannot testifv as to such facts. Sloan vs. Sloan, 'lS4 111. 579; See Voodry vs. Univ. of 111., 251 HI. 48; Kaul vs. Lyman, 259 111. 30.' > In probate court, proof of due execution is confined to sub- scribing witnesses, but on appeal to circuit court, after probate is refused, proponent may resort to any legitimate evidence as in chancery. Gould vs. Theo. Seminary, 189 111. 282. Presence of Witnesses when Testator Signs: It is not required that a will should be signed in presence of two or more credible witnesses. It is sufficient if two attesting wit- nesses heard testator acknowledge he signed it. Yoe vs. McCord, 74 111. 33; Hohart vs. Hobart, 154 HI. 610; Gould vs. Theo. Seminary, 189 111. 282; Holloway vs. Galloway, 51 111. 159. Presence of Testator's Signature: A will is not invalid because the signatures of attesting wit- 1324 WILLS riesses were attached before that of testator, who signed the instru- ment directly afterward and as part of same transaction. Gibson vs. Nelson, 181 111. 122. It is not necessary that attesting witnesses see signature of the testator upon face of the will. Gould vs. Theo. Seminary, 189 111. 282. Presence of Testator: ; A will must be signed by subscribing witnesses in presence of 'testator. It is not sufdcient that they acknowledge their signa- tures in his presence. O til Calkins vs. Calkins, 216 111. 458. Attestation to be in presence of testator must take place within the uninterrupted range of his vision; the presence of testator means contiguity, with such an uninterrupted view between testator and subscribing witnesses that he could, if so disposed, see the act of attestation, whether in the same room or in an adjoining room. Sehofield vs. Thomas, 236 111. 417; Dniry vs. Corawell, 177 111. 43; Witt vs. Gardiner, 158 111. 176; XIV 111. Notes 1036, §82. It is wholly immaterial whether the attestation be in the same room or in a different room. Witt vs. Gardiner, 158 111. 176; Ambre vs. Weishaar, 74 111. 109, If attesting witnesses sign the will at a place within scope of vision of testatrix, and where, considering her position and state of health at the time, she might have seen the signing if she so de- sired, the will is sufficiently attested in her presence even though she may not have actually seen witnesses sign. Ellis vs. Flannigan, 253 111. 397; In re Tobin, 196 111. 484. As to Presence of Other Witness: It is not required that attesting witnesses be in the presence of each other when they sign the will. riinn vs. Owen, 58 111. Ill; Mead vs. Presbyterian Church, 229 111. 526. Witnesses' Knowledge of Instrument: Witnesses need not know instrument is will. Elston vs. Montgomery, 242 111. 348; In re Will, of Barry, 219 111. 391; Webster vs. Yorty, 194 111. 408; Gould vs. Theo. Seminary, 189 111. 282. Attestation : Attestation is act of witnessing actual execution of an instru- ment and subscribing the name of witness in testimony of the fact. Calkins vs. Calkins, 216 111. 458. I The act of attestation consists in the subscription of the names of the witnesses to attestation clause. Sloan vs. Sloan, 184 111. 579. A will is not entitled to probate where one witness does not testify that he saw testatrix sign the will, or that she acknowledged it to be her act and deed, his only competent testimony being that he could not remember whether testatrix or any one else was pres- ent when he signed his name, or whether he signed at request of testatrix, although it was his impression that he did, and that the will and signature thereto were in handwriting of the testatrix. Greene vs. Hitchcock, 222 111. 216. A will is not sufficiently attested if subscribing witnesses signed WILLS 1325 their names where it was impossible for testator to have personal knowledge of their act, even tlioiigh he had requested them to sign, saw them take the will into an adjoining room and saw signatures on the will when it was brought back. Calkins vs. Calkins, 21(j ill. 458. All the statute requires in the execution of the will is that testator shall either sign the will in presence of the witnesses, or acknowledge his signature to them; and, therefore, the testimony of one of the subscribing witnesses that testator signed the will in his presence, or acknowledged his signature to him, but he could not remember which, was allowed to go to the jury. . ^on Browufield vs. Brownfield, 43 111. 147. Formal clause of attestation is not indispensable. The attesta- tion clause may consist of a simple word, such as witness, attest, or there may be no words of attestation. >■ Mead vs. Presbyterian Church, 229 111. 526; Calkins vs. Calkins, 216 111. 458. Presumptions : If a will, including attestation clause, which recites that will had been signed, is in the testator's handwriting, is properly attested and bears the testator's genuine signature, it will be presumed that it was signed at the time of attestation. Gould vs. Theo. Seminary, 189 111. 282. Where attestation clause does not show that testator was present, there is no presumption that he was present, and proof must so show. Schofield vs. Thomas, 236 111. 417. A testator is presumed to have understood the nature and con- tents of the will which he signed, and proof of his signature to the will is as a general rule, 'prima facie that he understandingly exe- cuted the same. Todd vs. Todd, 221 111. 410; Sheer vs. Sheer, 159 111. 591. So declarations made after execution are admissible to show such knowledge. Eobinson vs. Brewster, 140 111. 649. The law presumes that a will properly executed is valid. Brownfield vs. Brownfield, 43 111. 147. Proof of signature raises presumption that testator knew and approved contents, McCommon vs. McCoinmon, 151 111. 470; Purdy vs. Hall, 134 111. 298; Keithley vs. Stafford, 126 111. 507; Eobinson vs. Brewster, 140 111. 649; XIV 111. Notes 1049, §186. Proof that testatrix, in presence of attesting witnesses, acknowl- edged the instrument to be her act and deed is prima facie suffi- cient to establish the will, even though attestation clause may con- tain a recital which is shown to be untrue, that she signed in the presence of such witnesses. Elston vs. Montgomery, 242 111. 348. And proof that the signature was not in the hand of testator does not tend to overcome this presumption. Elston vs. Montgomery, 242 Jll. 348. Proof of signatures of deceased witnesses to the attestation clause is sufficient prima facie to establish due execution of will. Elston vs. Montgomery, 242 111. 348. 1326 WILLS Proof of handwriting of a deceased witness to a will is prima facie sufacient as to him, especially where signature of the wit- nesses are attached to an attesting clause that the will or codicil was signed and sealed in their presence. Under the statute on wills, upon trial in circuit court de novo, on appeal from county court, proof of testator's signature to a will may be made by testimony other than that of a surviving sub- scribing witness, where one witness is dead. The fact that the sole surviving subscribing witness to a will failed to notice whether or not it was signed, and cannot remember whether he saw the signa- ture or not, does not overcome the prima facie case made in favor of its due execution by the testimony of the witness that he signed it at the request of the testator and in his presence. Hobart vs. Hobart, 154 111. 610. Competency of Subscribing Witnesses: The term "credible," as applied to subscribing witnesses to a will, means competent. Smith vs. Goodell, 258 111. 145; Fearn vs. Postlewaite, 240 111. 626; Gump vs. Gowans, 226 111. 635. A credible witness means one who would be legally competent to testify, in a court of justice, to the facts which he attests by sub- scribing his name to the will. O'Brien vs. Bonfield, 213 111. 428. ■^ A witness who, for any legal reason, is disqualified from giv- ing testimony generally, or by reason of interest or other disquali- fying cause is incompetent to testify in respect to the particular subject under investigation, is not a credible witness. Jones vs. Grieser, 238 111. 183. The competency of a witness is to be determined by the state of facts existing at the time of the attestation, and not that existing at the time the will is offered for probate. Judy vs. Judy, 261 111. 470; Smith vs. Goodell, 258 111. 145; Johnson vs. Johnson, 187 111. 86. They must be competent witnesses at the time pf the attestation, otherwise the will is not well executed. Fearn vs. Postlewaite, 240 111. 626. The interest which disqualifies a witness must be a present, certain, legal interest of a pecuniary nature. The test is whether he will either gain or lose financially as the direct result of the suit, or whether the judgment or decree will be evidence for or against him in another action. Smith vs. Goodell, 258 111. 145; O'Brien vs. Bonfield, 213 111. 428; Boyd vs. McConnell 209 111. 396; Jones vs. Grieser, 238 111. 183. The interest, to be disqualifying, must be a present, certain and vested financial interest in the subscribing witness or in his or her husband or wife. Pyle vs. Pyle, 158 111. 289. It is the real and actual interest that disqualifies a witness and not the belief, understanding or feeling in regard to such interest. Pyle vs. Pyle, 158 111. 289. A devisee is not a competent Mdtness. Crowley vs. Crowley, 80 111. 469; Fearn vs. Postlewaite, 240 111. 626. The fact that a subscribing witness is a beneficial devisee renders devise to him null and void unless there are sufficient subscrib- WILLS 1327 ing witnesses without him, but such person is a competent sub- scribing witness to the residue of the will. Harp vs. I'arr, 168 111. 459. : Wife or husband of devisee or legatee is incompetent. Chi. T. & T. Co. vs. Brown, 183 111. 42; Fisher vs. Spence, 150 111. 253. And this notwithstanding the will, if established, would be against the interest of spouse of witness as heir at law. Sloan vs. Sloan, 184 111. 579. An executor is an incompetent witness. Fearn vs. Postlewaite, 240 111. 626; Jones vs. Greiser, 238 111. 183. But he may be compelled to abandon his executorship, if his testimony be needed, and testify to execution of the will. Smith vs. Goodell, 258 111. 145; Fearn vs. Postlewaite, 240 111. 626; Jones vs. Greiser, 238 111. 183. Wife of an executor is an incompetent witness and will cannot be probated though person named as executor makes written re- lease. Eowlett vs. Moore, 252 111. 436; Fearn vs. Postlewaite, 240 111, 626; XIV 111. Notes 1035, § 78. A partner of an executor named in a^ will is not a competent witness where the partnership articles provide that he shall share in the fees earned by the other partner while acting as an execu- tor or administrator. a Smith vs. Goodell, 258 111. 145. Trustees, acting without compensation for educational institu- tion wdiich is beneticiary, are not disqualified, Boyd vs. McConnell, 209 111. 396. Trustees, pastor and members of beneficiary church are cprp.- petent witnesses, '~:f "n Adams vs. M. E. Church, 251 111. 268. But parties to the proceedings for probate of will and trustees to carry into effect its provisions are incompetent to testify to execution and attestation, when contestants are heirs at law of the testator. In re Tobin, 196 111. 484. A person is not incompetent to testify as a subscribing witness because his grandson is a legatee. ■/ O'Brien vs. Bonfield, 213 111. 428. Wife or husband incompetent under section of Wills act, are not rendered competent by Section Five of the act relating to Evidence and Depositions. Gump vs. Gowans, 226 111. 635. The rule of law prohibiting a husband or wife testifying either for or against the other's interest is based on public policy, inde- pendent of interest. Fearn vs. Postlewaite, 240 111. 626. Amendment to Wills Act, making husband or wife of any devisee or beneficiary competent to witness will, is not retroactive and cannot affect the validity of wills executed by testators who have died before statute took effect. Eowlett vs. Moore, 252 111. 436. Subsefiuent release of benefits will not render witness competent. Smith vs. Goodell, 258 111. 145; Fisher vs. Spenee, 150 111. 253. .p. The competency of an attesting Avitness is to be tested by the 1328 WILLS facts existing at the time of attestation. If then competent, any subsequent incompetency will not prevent probate of the will, and if then incompetent, subsequently acquired competency will not validate the will. Competent attesting witness is not rendered incompetent by purchasing interest of devisee. In re Will of Delaveigne, 259 111. 589. After acquired interest may be shown for purpose of affecting credibility. In re will of Delvergne, 259 111. 589. As may conviction of felony after attestation. In matter of Noble, 124 111. 266. REVOCATION : Where a joint and mutual will shows on its face that the provi- sions of one were consideration for the provisions of the other, no evidence other than the will itself and the acts of the parties is necessary to prove a compact which will prevent revocation by the survivor, who has taken advantage of the provisions made by the other. Frazier vs. Patterson, 243 111. 80; XIV 111. Notes 1040, § 115. As with deeds, so with wills, parties making them cannot in- validate them by their own parol declarations, made either pre- viously or subsequently, and evidence of such declarations is prop- erly excluded. Dickie vs. Carter, 42 111. 377. As a general rule, if a will is traced to the testator's possession, and at his death cannot be found, the presumption is, in the absence of anything to contrary, that he destroyed it ammo revocandi. ^„ „^, „^ Taylor vs. Pegram, 151 111. 106; Stetson vs. Stetson, 200 111. 601; St. Mary's Home vs. Dodge, 257 111. 518. Declaration of testator not admissible in direct proof of revocation. Eeynolds vs. Adams, 90 111. 134. Where testator has wholly or partially destroyed or mutilated, torn or cancelled his will, declarations made by him at the time of doing such act are admissible as part of the res gestce to show with what intent he mutilated or destroyed the instrument. Sab- sequent declarations of testator are admissible to show intent, and also admissible to show partial mutilation, cancellation or tearing of the will. Burton vs. Wylde, 261 111. 397. And are admissible to show total destruction of the will. Boyle vs. Boyle, 158 111. 228 ; Burton vs. Wylde, 261 111. 397. Declaration of disinherited heir at law that she destroyed will is inadmissible. Boyle vs. Boyle, 158 111. 229. The declaration, written or oral, made by testator after the exe- cution of the will, are, in event of its loss, admissible, not only to prove that it had not been cancelled, but also to show contents. In re Page, 118 111. 576. Where a will is found in a mutilated condition, in possession of testator after latter 's death and there is no evidence to fix the spoliation on any other person the court will presume that it was done by the testator with the intention of cancelling the will. Marshall vs. Coleman, 187 111. 556. WILLS 1329 '' But all presumptions of this sort weigh lightly and may be rebutted by proof of actual facts. Burton vs. Wyldo 261 111. 397. Where will is in possession of testator up to the time of his decease, it is presumed that marks and erasures thereon were those of testator. Pyle vs. Murphy, 180 App. 18. PROBATE : Admissibility of Evidence: — Jn General: A party seeking to procure a will to be admitted to probate must produce the subscribing witnesses, as witnesses in the probate court if they are still living and sane and are within the jurisdiction of the court and on appeal from an order of the pro- bate court refusing to admit the alleged will, the party seeking the probate is not relieved from the duty of submitting to the circuit court the testimony of the subscribing witnesses. St. Mary's Ilome vs. Dodge, 257 111. 518; In re Will of Barry, 219 111. 391; Thompson vs. Owen, 174 111. 229; XIV 111. Notes 1043, § 139. On question of mental capacity of testator, on probate of will executed in legal form, only the testimony of subscribing witnesses is competent. In re Estate of Weedman, 254 111. 504; O'Brien vs. Bonfield, 213 111. 428; Moody vs. Freund, 208 111. 78; Claussenius vs. Claus- senius, 179 111. 545. And no contradictory evidence is admissible, except that fraud or compulsion may be shown. Therefore, proceedings for appointment of conservator for testator is inadmissible. In re Estate of Weedman, 254 111. 504. li .ui Any competent evidence is admissible to show fraud, compulsion or other improper conduct. But the fraud so contemplated does not embrace lack of testamentary capacity. Stuke vs. Glaser, 223 111. 316. While it is not necessary for subscribing witnesses to testify that testator was of sound mind and memory at time of signing or acknowledging will, yet it is essential that they testify they be- lieved such fact. Hill vs. Kehr, 228 111. 204; In re Will of Ingalls, 148 111. 287. Subscribing witnesses must declare that they believed the testa- tor was of sound mind and memory at time of signing or acknowl- edging will, but are not required to use the exact language of the statute, it being sufficient if they state their belief in equivalent words. Bice vs. Hall, 120 111. 597. Proof that subscribing witnesses did not know whether testator was of sound mind and memory or not is insufficient proof of same. Allison vs. Allison, 46 111. 61. Right to probate the will is not dependent upon belief of attest- ing witnesses formed after their attestation. Waugh vs. Moan, 200 111. 298. If a witness entertains a belief, at time of execution of will, that testator is of sound mind and memory, it wdll meet the require- ments of the statute. "^ ^^ Hill vs. Kehr, 228 111. 204. Ev.— 84 1330 WILLS The belief as to sanity to which subscribing witnesses are required to depose, is that entertained by them at time will was executed, and not their belief at time their testimony is taken. Id re Will of Ingalls, 148 111. 287. '* Identity of mutilated will need not be established by evidence of subscribing witnesses. Webster vs. Yorty, 194 111. 408. The fact that testatrix was in a comatose condition at the time it is claimed she signed the will, cannot be shown by witnesses other than the subscribing witnesses, upon application to the county court for probate, nor upon appeal to the circuit court, where it is not claimed such condition was brought about by some person as a trick to obtain her signature, since a comatose condi- tion resulting from disease would go to the question of testa- mentary capacity, upon which the parties are limited to the testi- mony of the subscribing witnesses. Stuke vs. Glaser, 223 111. 316. — Proceedings in County Court: Upon the subject of the testa- mentary capacity, no evidence can be heard on either side except that of the subscriliing witnesses. Kaul vs. Lyman, 259 111. 30; Stuke vs. Glaser, 223 111. 316; O'Brien vs. Bonfield, 213 111. 428; Andrews vs. Black, 43 111. 256; Walker vs. Walker, 3 111. 291; XIV 111. Notes 1029, §32. But upon fraud, compulsion or other improper conduct, con- testants may introduce competent evidence for purpose of invali- dating for such reason. Stuke vs. Glaser, 223 111. 316; Claussenius vs. Claussenius, 179 111. 545; Harp vs. Parr, 168 111. 459; Heirs of Critz vs. Pierce, 106 111. 167. ■ — Appeal from Order Admitting Prohate: Both parties con- fined, on subject of testamentary capacity, to testimony of witneses to the will. )ji Hill vs. Kehr, 228 111. 204; Stuke vs. Glaser, 223 111. 316; Greene vs. Hitcheock, 222 111. 216; O'Brien vs. Bonfield, 213 111. 428; In re Arrowsmith, 206 111. 352; Hobart vs. Hobart, 154 111. 610. Evidence other than that of the testimony of subscribing wit- nesses is admissible on behalf of contestants to show physical inability of testator to sign the will. iCraig vs. Trotter, 252 111. 228. — Appeal from Order Denying Prohate: Proponents are not limited to subscribing witnesses, but may support same by any evi- dence competent to establish a will in chancery. Kaul vs. Lyman, 259 111. 30; Stuke vs. Glaser, 223 111. 316; Hill vs. Kehr, 228 111. 204; Greene vs. Hitchcock, 222 111. 216; In re Barry, 219 111. 391; Webster vs. Yorty, 194 111. 408. Contestants are limited on subject of testamentary capacity to testimony of subscribing witnesses. ^ »f?7/ Stuke vs. Glaser, 223 111. 316; In re Arrowsmith, 206 111. 352; lU. Masonic Home vs. Graeey, 190 111. 95; Heirs of Critz vs. Pierce, 106 111. 167. (See Affidavits.) — Impeachment of Subscribing Witnesses: As to a witness whom a party is required by law to call, the rule is that the truth- fulness and integrity of the witness is not vouched for, and the party so producing the witness may bring forward proof of pre- vious declarations at variance, on material points, with his testi- WILLS 1331 mony, for the purpose of impeaching him or contradicting his testimony on such points. Thoiupsuu vs. Uwcii, 174 111. 229. To admit aifidavits of subscribing witness for purpose of im- peaching him, the affidavit should be produced and attention of witness specifically called to such parts of it as it is thought his testimony contradicts. In re Noble, 124 111. 266. Proponents being compelled to produce subscribing witnesses in county court, may prove the affidavits of such witness made in county court, for purpose of contradicting testimony given by them in circuit court, where there is a conflict. In re Will of Barry, 219 111. 391; Thompson vs. Owen, 174 111. 229. If one of the subscribing witnesses to a will is impeached, with reference to matters stated in his testimony in proceedings to con- test will, such impeachment does not relate back to time will was executed. Johnson vs. Johnson, 187 111. 86. ,tl)B - — Death, Absence or Incapacity of Witness: Death of a sub- scribing witness merely changes the form of proof, and permits secondary evidence of the attestation and execution of the will. Proof of testator's signature by other testimony than that of sub- scribing witnesses comes under the designation of "other necessary evidence. ' ' Hobart vs. Hobart, 154 111. 610; XIV 111. Notes 1043, § 141. Proof of the signatures of the deceased witnesses to attesta- tion clause, reciting that testator acknowledged the instrument to be his act and deed, in their presence and in the presence of each other, and that they subscribed their names as witnesses, is suffi- cient prima facie to establish the due execution of the will, without further proof of the signature of the testator. Elston vs. Montgomery, 242 111. 348. Though there be no formal attestation clause, the inference arises, from the mere fact of attestation, that the witnesses believed testator possessed testamentary capacity at the time of executing the will. More vs. More, 211 111. 268. Testimony of a surviving subscribing witness may be sufficient for probate of will, where the other is dead and the attestation is duly proven. ' f 'ijir.?, m(I| Eobinson vs. Brewster, 140 111. 649. In case of deceased, insane or absent witness, the court may admit proof of handwriting of such witness, and admit the instru- ment to probate as though it had been proven by such subscribing witness in his or her proper person. Proof of handwriting of the subscribing witness in such a case raises the presumption that wit- ness duly attested the will in presence of the testator and believed him to possess testamentary capacity. Calkins vs. Calkins, 216 111. 458. — Admissibility of Attestation Clause: Probate of will does not depend upon the recollection of a subscribing witness. An attesta- tion clause in due form, and bearing the signature of the witnesses, which they admit to be genuine, is competent evidence, tending to 1332 WILLS establish the execution of the will, where the only defect in the proof is the failure of witnesses to recollect that all the formalities prescribed in the statute and recited in the attestation clause have been complied with. Thoiupsou vs. Owen, 174 111. 229; See Also Elston vs. Montgomery, 242 III. 348. Where the attestation clause contains all the particulars of a good execution, it will always be prima facie evidence of due execu- tion and will prevail over the testimony of the witnesses who give evidence tending to show that some of the requisites were omitted. Thompson vs. Owen, 174 111. 229. The statements of the attestation clause are entitled to their due weight, and the mere inability of an attesting witness to recollect the facts therein stated will not defeat the probate. In re. Estate of Kohley, 200 111. 189. — Depositions: The mere presence of one of the counsel at the taking of a deposition of a subscribing witness to a will, under section 4 of the Wills act, is not ground for striking deposition from files. In re Estate of Arrowsmith, 206 111. 352. A deposition of a subscribing witness, taken under section 4 of the Wills act, upon a commission issued by county court, may be read in circuit court on appeal from county court's order admit- ting the will to probate. In re Estate of Arrowsmith, 206 111. 352. Interrogatories in deposition of subscribing witness, inquiring whether he would have signed the instrument except in the pres- ence of the testatrix, and whether all the things mentioned in the attestation clause were complied with, which clause recited the doing of the things required by the statute to make a valid will, are improper, and the interrogatories and answers should be sup- pressed. Greene vs. Hitchcock, 222 111. 216. Weig-ht and SuiRciency: To entitle a will to probate, four things must be proven : The will must be in writing, and signed by the testator, or in his pres- ence by some one under his direction ; it must be attested by two or more credible witnesses; two witnesses must prove that they saw testator sign the will in their presence or that he acknowledged the same to be his act and deed ; they must swear that they believed him to be of sound mind and memory at the time of the acknowl- edgement of the same. In re Estate of Kohley, 200 111. 189; Harrison vs. Weatherby, 180 111. 418 : Canatsey vs. Canatsey, 130 111. 397 ; Crowley vs. Crowley, 80 111. 469. But the proving of the signatures of the witnesses may con- stitute such proof where witnesses are deceased or incapable. Thompson vs. Owen, 174 111. 229. Nor is it required that subscribing witnesses be able to recollect that all the formalities prescribed by statute and recited in the attestation clause were actually complied with. -)'■" Mead vs. Presbyterian Church, 229 111. 526; Schofield vs. Thomas, 236 111. 417;"Doran vs. Mullen, 78 111. 342. It is sufficient to admit a will to probate to show due formal WILLS 1333 execution thereof, and that testator was of sound mind and mem- ory at tlie time. iJice vs. Hall, li'O 111. 597. Probate should be refused where one witness cannot recollect as to presence ot testator, or whether he signed at testator's request. Greene vs. Hitchcock, 222 111. 21G. Where witnesses signing by mark cannot identify instrument or swear they believed testator of sound mind, probate should be refused. Crowley vs. Crowley, 80 III. 469. That witness knew testator must either sign or acknowledge sig- nature in his presence is no proof that same was done. Greene vs. Hitchcock, 222 111. 21G. Evidence of one witness as to signing in presence of witnesses and testator is sufficient, where testimony of other witness to con- trary is contradicted by his own affidavit made on first hearing in county court. Senn vs. Gruendling, 218 111. 4.58. Probate court cannot admit will to probate w^here one of two subscribing witnesses cannot remember any circumstance connected with transaction, but circuit court, on appeal from order denying probate, may hear any evidence competent to prove due execution of will, Kaul vs. Lyman, 259 III. 30; Voodry vs. U. of I., 251 111. 48. If testimony of the two attesting witnesses to a codicil added to a will is sufficient to establish the codicil, upon application to probate will, it is also sufficient to establish the will. Hill vs. Kehr, 228 111. 204; Mayville vs. French, 246 111. 434. A will is established, (except such portions as are revoked or altered by the codicil) by proof of a codicil wa^itten on the same paper, or clearly and unmistakably referring to the will, so as to preclude all doubt of its identity without further proof. Hobart vs. Hobart, 154 111. 610; XIV 111. Notes 1043, §143. Where same witnesses subscribed and attested both will and codicil, written upon same sheet of paper, testimony by such wit- nesses that they were present and saw the will and codicil executed, and that they believed testatrix to be of sound mind and under no restraint, "when she signed the will," is sufficient proof of both will and codicil. Fry vs. Morrison, 159 Til. 244. Where the attestation clause signed by the witnesses, who are both dead, recites that instrument was acknowledged by testatrix in their presence, to be her act and deed, proof tending to show the signature to the will was not in handwriting of testatrix does not tend to overcome the prima facie case made out by the attesta- tion clause and proof that signatures of the witnesses were genuine. Elston vs. Montgomery, 242 111. 348. Wliere proof shovred that testatrix, during her last illness, said she wanted her husband to have her property, and at the same time that she wanted another person to have something, and that she would finish it or fix it tomorrow ; that she lived six days there- after, and was all the time in condition to make a will in writing, the words so spoken under such circumstances do not amount to 1334 WILLS such a declaration as should be admitted to probate as a nun- cupative will. Morgan vs. Stevens, 78 111. 287. Establishment of Lost Wills: The contents of a lost or destroyed will may be proven by the testimony of a single witness. The declarations, written or oral, of testator, made after the execution of the will, are, in event of its loss, admissible not only to prove it had not been cancelled, but also as secondary evidence of its contents. In re Page, 118 111. 576. Lost or destroyed wills cannot be established upon unsatisfactory evidence, and the distribution of estates determined upon unsatis- factory evidence, such as that of a single witness, who testifies that after death of the testatrix, she found, and gave to her husband, a paper enclosed in a wrapper of the same color and size as the one shown to her in court a year and a half after the incident occurred, and which is claimed to be a fac simile of the alleged will. St. Mary's Home vs. Dodge, 257 111. 518. ^" Clear proof of execution, attestation and contents of a will and 'that the will was last seen in the possession of the widow some weeks after the testator's death, justifies the presumption that the widow performed her duty under the law, and delivered it to the probate court, and such proof, coupled with the testimony of the clerk of such court, that he has made diligent search among the files and records of his office and has been unable to find the will, makes a prima facie case that the will has been lost. Cassem vs. Prindle, 258 111. 11. To establish the contents of a lost will, it is not essential that the subscribing witnesses be able to repeat its exact language, and it is sufficient if they are able to recollect with certainty the sub- stance of the will, where it is a very simple one. Cassem vs. Prindle, 258 111. 11. Where will is destroyed by heirs, devisees bound only to show, on general terms, the disposition made. Anderson vs. Irwin, 101 111. 411. Proof of sanity not indispensable in absence of proof to contrary, in bill to establish destroyed wall. Anderson vs. Irwin, 101 111. 411. ^ "'^here commission, appointed to restore destroyed records, found a copy to be such and ordered it recorded, though copy only had one attesting witness, same is admissible in evidence, the presump- tion being that the court, as well as the commission, had sufficient evidence to justify their action. Transportation Co. vs. Gill, 111 111. 541. CONTEST IN CHANCERY: Order of Proof: The burden of sustaining a will being upon the party affirming its validity, such party should open and close. Harp vs. Parr, 168 111. 469 ; Bevelot vs. Lestrade, 153 111. 625 ; Tay- lor vs. Cox. 153 111. 220; XIV 111. Notes 1049, § 186. This view is unaftected by the fact that upon a prima facie case WILLS 1335 being made, the presumption of sanity arising, burden of proof is cast upon the contestant to show, by a preponderance of all the evidence, that the deceased, at time of the execution of the will, was wanting in testamentary capacity. Craig vs. Soutliard, 14S 111. M7. It is for proponents of a will to offer all the evidence of testa- mentary capacity in first instance, and if they desire to present opinions of experts, based upon an hypothesis of facts testified to by their witnesses, they should do so before closing in chief. Albrecht vs. Hittle, 248 111. 72. But after contestant has offered his evidence, proponent has a right to examine expert witnesses as to what conclusions, in their opinions, should be drawn from such evidence. Albrecht vs. Hittle, 248 111. 72. Admissibility of Evidence: — In General: Validity of will may be established by any legit- imate evidence. Webster vs. Yorty, 194 111. 408. While proponent may make a prima facie ease by the testimony of subscribing witnesses or the certificates of the oath of attesting witnesses at the time of probate, yet he is not limited to either of such methods, but may prove the execution of the will and the mental capacity of the testator by any legitimate evidence. Voodry vs. Univ. of Ills. 251 111. 48 ; Kaul vs. Lyman, 259 111. 30. Verdict of coroner's jury admissible to show that testator com- mitted suicide. Pyle vs. Pyle, 158 HI. 289. Testimony of disinterested party who drew will, that will was in same condition as to paper on which it was writteii, as when executed, is admissible where fraud and substitution is charged. Harp vs. Parr, 168 111. 459. The condition a will was in, as regards attached papers, at the time of execution of a codicil, and the intention of the testator as to what should constitute his will, may be shown by parol. Shaw vs. Camp, 163 111. 144. Scrivener may testify as to what his directions were and that he followed them. Healea vs. Keenan, 244 111. 482. Where contestants introduce in evidence executor's inventory, it is proper to refuse to permit them to introduce oral testimony of value of estate, where they do not offer such proof to impeach the inventory, but merely to show the value of the estate, without stating whether they expect to prove such value to be less or greater than is shown by the inventory. Abrahams vs. Wooley, 243 111. 365. Refusal to permit party to prove that he had no authorized attorney to appear is proper, as jury are not concerned with plead- ings. :. Larabee vs. Larabee, 240 111. 576. — Affidavits of Suhscrihing Witnesses: Original affidavits filed on probate of will admissible. Harp vs. Parr, 168 111. 459; Potter vs. Potter, 41 111. SO. In general, the oaths of subscribing witnesses are competent. ' Entwistle vs. Meikle, 180 111. 9. ' l" 1336 AVITHHOLDING EVIDENCE But not when record shows taken after will probated. Godfrey vs. Phillips, 209 111. 584. Certificate of oath of subscribing witness at tnne of first probate is admissible, notwithstanding the witnesses have already testified to the same effect. Kellan vs. Kellan, 258 111. 256. Whether declaration is in form of an af^davit or questions and answers is immaterial. Baker vs. Baker, 202 111. 595. Introduction of the will itself and proof of death and the certifi- cate of the oaths of the subscribing witnesses make a 2)rima facie case in favor of the validity of the will. Waters vs. Waters, 222 111. 26 ; Baker vs. Baker, 202 111. 595 ; Thomp- son vs. Bennett, 194 111. 57; Wilbur vs. Wilbur, 129 111. 392; Wilkinson vs. Service, 249 111. 146. — Order Admitting to Probate : Order of court admitting will to probate is incompetent. Craig vs. Southard, 148 111. 37; Purdy vs. Hall, 134 111. 298. — Indorsement on Will hy Judge: Admitting endorsement show- ing will to be proved and admitted to probate, is reversible error, Weston vs. Teufel, 213 111. 291. But where covered by agreement of attorneys, is not ground for reversal. Larabee vs. Larabee, 240 111. 576. — Certified Copy of Will: It is error to admit certified copy of will. Original should be produced, or absence accounted for. Purdy vs. Hall, 134 111. 298. But proponents may introduce certified copy where original is in hands of contestants. Nieewander vs. Nicewander, 151 111. 156. Burden of Proof: See Ante: Testamentary Capacity, Undue Influence, Burden OF Proof, — Wills. WITHHOLDING EVIDENCE. See Destruction, Suppression and Fabrication, Refusal to Produce. WITNESSES. See Absent Witness, Accessories, Accomplice, Acknowledg- ments, Adverse Party, Affidavits, Age, Agency, Arbitration and Award, Attorneys, Bias and Hostility, Bigamy, Book- keeper, Contradiction and Sustaining Witness, Corroboration, Credibility, Cross Examination, Cumulative Evidence, Depo- sitions, Detectives, Expert and Opinion, Former Conviction, Former Testimony, Grand Jurors, Handwriting, Husband and Wife, Hypothetical Questions, Immunity, Impeachment, Infants, Interpreters, Justice of Peace, Leading Questions, New Trial, Objections, Order of Proof, Offer of Evidence, Parties WITNESSES 1337 AND Persons Interested as Witnesses, Pedigree, Photographs, Privileged Communications, Kecalling Witness, Refusal or Failure to Produce Evidence, Exclusion and Separation of Witnesses, Value, Voir JJire, Wills. COMPETENCY IN GENERAL. Presumptions and Burden of Proof: The presuinption is that one ofiPered as a witness is competent to testify, and the burden is therefore east upon one who objects, to state and prove the grounds of his objection. Boyd vs. McConnell, 209 111. H96; Campbell vs. Campbell, 130 111. 46G; XIV 111. Notes, 1117, §48. Person objecting must state and prove grounds of his objection. S. C. Institute vs. Estate of Avery, 157 App. 568; Standley vs. Moss, 114 App. 612. J^ ff , J Where ^^^tness is competent, only as to certain matters, upon objection being made, party offering him must state for what pur- pose he is introduced. Stewart vs. Kirk, 69 111. 509. Courts will not inquire into proceedings -before the grand jury for purpose of determining whether the evidence heard by that body was sufficient to support the indictment, unless all the wit- nesses were incompetent or all the testimony upon which the indict- ment was found was incompetent. It will not be presumed, merely because the prosecuting witness did not testify, that there was no competent evidence given which would warrant the grand jury in returning the indictment. People vs. Duncan, 261 111. 339; People vs. Bladek, 259 111. 69. Objections: — Specific Objections: General objection is insufficient where witness competent as to certain matters. Colston vs. Olroyd, 204 111. 435. An objection to question propounded to witness is not suffi- cient to raise question of competency. Such objection must be specific. Daey vs. Goll, 150 App. 9 ; Christiansen vs. Dunham Co., 75 App. 267. Where specific objection is made, based upon incompetency of witness, it is not necessary to repeat special ground of objection to every question thereafter asked. Taylor vs. Pegram, 151 111. 106. Objection by all defendants, where witness testifying is compe- tent as against one, is insufficient. Holroyd vs. Millard, 142 App. 392. — On Appeal: An objection to the competency of witness can- not be made for first time on appeal. Dewees vs. Osborne, 178 111. 39; Dotv vs. Doty, 159 HI. 46; Cotter vs. Sullivan, 162 App. 396; Holroyd vs. Millard, 142 App. 392; Willen- borg vs. Murphy, 36 111. 344; Hipole vs. De Puie, 51 111. 528; XI 111. Notes, 191, § 463. Party has no cause of complaint because of admission of evi- dence offered by himself. Botts vs.'Botts, 142 App. 216. — Waive)-: A party against whom a disqualified witness is offered may object and bring the matter to the attention of the court before the evidence is given, or he may, if he sees proper, 1338 WITNESSES waive the disqualification and permit the witness to testify, and by failing to make his objection in apt time, he is presumed to have waived his right Chi. Trust Co. vs. Sagola Lbr. Co., 242 111, 468. Where a party is aware of the grounds that disqualify a witness, he cannot be permitted to sit by and speculate as to the character of the evidence and afterwards object to the competency of the witness if his evidence turns out to be unfavorable to him. CM. Trust Co. vs. Sagola Lbr. Co., 242 111. 468. Objection is not waived by failure to interpose it at time of taking a deposition, but such objection is good if taken on the liearin^ >nV ^'kelsey vs. Snyder, 118 111. 544; Cf. Mer. L. & T. Co. vs. Egan, 222 111. 494. Where the disqualification is absolute, objection is not waived if not interposed at time of taking deposition. Albers Com. Co. vs. Sessell, 193 111. 153; Warren vs. Warren, 105 111. 568; Kelsey vs. Snyder, 118 111. 544. ,, But if objection is one which might be obviated, objection must be made at time of taking deposition. Albers Com. Co. vs. Sessell, 193 111. 153; Clausen vs. Stone, 29 111. 114; Harmon vs. Thornton, 3 111. 351. Failure of guardian ad litem to object is not a waiver. Johnston vs. Johnston, 138 111. 385. Personal representative may waive objection by stipulation. Mitchell vs. Sawyer, 115 111. 650. Where objection made, cross examination of incompetent wit- ness before master is not a waiver of objection. Achilles vs. Achilles, 137 111. 589. Subsequent calling of party is waiver of objections to his compe- tency as a witness in his own behalf. Becker vs. Foster, 64 App. 192. — Motion to Exclude: Where the incompetency of a witness is known to the adverse party at the time the evidence is given, he cannot afterwards raise the question of his competency by a motion to exclude his evidence. Chi. Trust Co. vs. Sagola Lbr. Co., 242 111. 468 ; Chi. U. Trac. Co. vs. ,,, ,, May, 221 111. 530; Hanford vs. Obrecht, 49 111. 146. determination of Competency: — Question of Law: Competency of witness is question of law. ,, .,_ Wiekliff vs. Lynch, 36 111. 209; Kelly vs. People, 29111. 287, And in determining such question, the court is not only the judge of the law, but also the facts necessary to be determined. Hoeh vs. People, 219 111. 265. Competency of weak-minded persons is for the court. People vs. Enright, 256 111. 221. — Examination on Voir Dire: When objection is made to wit- ness on ground of his incompetency, it is the duty of the court, l)ef()re his evidence is taken, to determine the question of his com- petency, and may do so by inquiring of the witness under his voir dire. He may also hear additional evidence to properly determine the question. White Mem. Home vs. Haeg, 204 111. 422 ; Campbell vs. Campbell, 130 111. 466; Ronan vs. Bluhm, 173 111. 277. A witness who is objected to because of interest in event of suit,' may be examined on his voir dire, but resort cannot be had to WITNESSES 1339 both modes. And when other evidence is heard, the proposed wit- ness cannot be introduced for the purpose of disproving the in tore st Diversy vs. Will, 28 111. 216; Walker vs. Collier, 37 111. 363. Court should permit examination on voir dire. 8. C. Institute vs. Avery, 157 App. 568. Capacity and Qualifications : — Athiest: An athiest is a competent witness. Ewing vs. Baily, 36 App. 191. There is no longer any test of qualification respecting religious belief or want of such belief, as affecting the competency of wit- nesses to testify in a court of justice. Hronek vs. People, 13-i 111. 139; McAmore vs. Wylie, 49 App. 615; See also. Cent. Mil. E. E. Co. vs. Eockafellow, 17 111. 541; Noble' vs. People, 1 111. 54, XIV 111. Notes, 1113, § 23. — 3Ientally Deficient Witnesses: One so mentally deficient as to be incapable of comprehending the nature and obligation of an oath is not a competent witness. [ Conley vs. People, 170 111. 587. In absence of any statute to contrary, an insane person is com- petent as a witness if he understands the nature of an oath and has sufficient mental power to give correct account of what he has seen or heard. People vs. Enright, 25G 111. 221. Mental derangement which does not affect the subject matter of the testimony, either at time of testifying or at time of occurrence testified to, does not render witness incompetent. People vs. Enright, 256 111. 221. Fact that conservator was appointed for person does not, of itself, render him incompetent. People vs. Enright, 256 lU. 221; Champion vs. McCarthy, 228 111. 87. Where proof shows the mind of witness is not so far enfeebled as to prevent an intelligent appreciation of his responsibility as a witness and a fair recollection and understanding of the matters about which he testifies, his deposition may be given in evidence, although it is proven by record that a conservator had previously been appointed on the ground that he was of feeble mind, not cap- able of transacting business, where it does not show nature or extent of his mental impairment, or that it was permanent. Tucker vs. Shaw, 158 111. 326. Where insanity is such as to render party incompetent as a witness, other persons Miio are parties directly interested in the event of the suit are also incompetent. Holton vs. Dunker, 198 111. 407. But rule does not apply in suit by next friend, where real party in interest has not been adjudged insane, nor had a conservator, and who testified on trial. Tompkins vs. Tompkins, 257 111. 557. — Infants: Intelligence, ability to comprehend the meaning of an oath, and the moral obligation to speak the truth, and not age, are the tests by which to determine the competency of a child to testify. Shannon vs. Swanson, 208 111. 52 ; Sokel vs. People, 212 111. 238 ; Draper vs. Draper, 68 111. 17; Featherstone vs. People, 194 111. 325; Ep- stein vs. Berkowsky, 64 App. 498 ; McAmore vs. Wiley, 49 App. 615. 1340 WITNESSES ■'ijL. Grand Jurors: Grand jurors are competent as impeaching witnesses. People vs. Nail, 242 111. 284; Hoge vs. People, 117 111. 35; Bressler vs. People, 117 111. 42'Z. Grand jurors may be compelled to testify to proceedings in the jury room, if it is necessary for purposes of public justice or for the protection of private rights. Kirseh vs. Walter, 151 App. 378. Competent to prove facts which came to their knowledge while acting in such capacity. Granger vs. Warrington, 8 111. 299. f Cannot impeach their return on indictment, nor can this be. done by any other person authorized by law to be present in the grand jury room. People vs. Nail, 242 111. 284; Shoop vs. People, 45 App. 110; Gitchell vs. People, 146 111. 175. Affidavits are competent to support indictment. People vs. Strauch, 153 App. 544. Blit cannot be received to disclose fact that certain witnesses were present during examination of others. People vs. Arnold, 248 111. 169 ; Gilmore vs. People, 87 App. 128. — Witnesses Names Not On Indictment: It is within the sound discretion of the court to allow witnesses to be examined other than those whose names are endorsed on the indictment. People vs. Lutzow, 240i 111. 612; Hauser vs. People, 210 111. 253; Cross vs. People, 198 111. 291; Gore vs. People, 162 111. 259; Simons vs. People, 150 111. 66; Gifford vs. People, 148 111. 173; Gates vs. People, 14 111. 433. PARTY IN GENERAL. Common law disqualification because of interest removed by stat- ute generally. Feitf vs. Chi. City Ey. Co., 211 111. 279; In re Estate of Maher, 210 111. 160. COMPETENCY OF PARTY AS AGAINST INSANE PERSON. Where adverse party is insane, parties directly interested are incompetent. Holton vs. Dunker, 198 111. 407. But where suit brought by next friend, ward alleged mentally- incompetent but never having been so adjudged, and he himself testi- fying, adverse party is competent. Tompkins vs. Tompkins, 257 111. 557. COMPETENCY OF PARTIES AND INTERESTED WIT- NESSES AGAINST HEIRS, LEGATEES. DEVISEES, TRUS- TEES AND LEGAL REPRESENTATIVES. Generally : Where the adverse party sues or defends as heir, legatee, devisee or personal representative, a party directly interested in the event of the suit is not competent to give testimony in his own behalf as to transactions between such party and the deceased, as against such heirs, legatees, devisees, trustees or legal representatives. Vail vs. Kynearson, 249 111. 501; Gladville vs. McDole, 247 111. 34; Wilson vs. Wilson, 158 111. 567; Stodder vs. Hoffman, 158 111. 486; Taylor vs. Pegram, 151 HI. 106; Griffin vs. Strong, 148 111. 587; Michael vs. Maoe, 137 111. 485; Ferbrache vs. Ferbraehe, 110 111. 210; Plain vs. Both, 107 HI. 588; Sargent vs. Maxwell, 151 App. 307; Pierce vs. Jacobs, 157 App. 441; XIV 111. Notes, 1123, §95. WITNESSES 1341 Nor is he competent to testify to conversations or admissions of deceased person where adverse party so sues or defends. Elwell vs. Hicks, 238 111. 170; Loeb vs. Steru, 198 111. 371; Kelsey vs. Snyder, 118 111. 544; Dyer vs. Hopkins, 112 111. 168; Waterman vs. Spaulding, ,51 111. 425; Miller vs. Mathias, 145 App. 465. Rule applies as well in favor of heir by one degree as in behalf of immediate heir. Under the word "heirs" are comprehended the heirs of heirs, ad infinitum. Merrill vs. Atkin, 59 111. 19; Crocker vs. Smith, 10 App. 376. Where adverse party sues or defends in a representative capac- ity, a party in interest is incompetent unless called by such adverse party. Elwell vs. Hicks, 238 111. 170; Loeb vs. Stern, 198 111. 371; Grafton Stone Co. vs. St. L. C. & St. P. Ky. Co., 199 111. 458; Alexander vsi Hoffman, 70 111. 114. Where the opposite parties and the only opposite parties having any interest in the litigation are defending as executors, the adverse party is an incompetent witness. ;« Litch vs. Clinch, 136 111. 410. A party in interest is incompetent where adverse party sues o^ defends as heir, unless called bv such heir. Fletcher vs. Shepard, 174 111. 262; Leavitt vs. Leavitt, 179 111. 87; Blanchard vs. Blanchard, 191 111. 450; Vail vs. Eyuearson, 249 111 501; Drury vs. Henderson, 143 111. 315. Where representative attempts to prove admission against in. terest by defendant, after death of intestate, such defendant has jv right, not only to deny making such statement, but may also prove such other parts of the conversation as tend to explain or destroy the admission. Foster vs. Shepard, 258 111. 164; Stewart vs. Kirk, 69 111. 509. It is only when called to testify in his own interest that a party or interested person is disqualified as a witness. He is competent when called by the partv opposed to him in interest. Duffy vs. Duffy, 243 111. 476; Hofner vs. Custer, 237 111. 64; Pyle vs. Pyle. 158 111. 289 ; McKay vs. Eiley, 135 111. 586 ; Keenan vs. Blue, 146 App. 7. Heirs at law are competent witnesses upon behalf of claimant against the estate of their ancestor. Their testimony is adverse to their own interest. . Neish vs. Gannon, 198 111. 219, Any party or person interested may testify to facts occurring after the death of the deceased person. Hilt vs. Heimberger, 235 111. 235; Eogers vs. Tyley, 144 111. 652; Carr vs. Carr, 177 111. 454. Though devisees under will and defendants in bill to contest same. t Hollo-way vs. Galloway, 51 111. 159. When any agent of any deceased person shall, in behalf of any person suing or being sued as administrator, testify to any con- versation or transaction between such agent and the opposite party, such opposite party may testify concerning same conversation or transaction. Loeb vs. Stern, 198 111. 371; Jacquin vs. Davidson, 49 111. 82. Party is only competent as to same conversation or transaction given in evidence by agent. Symonds vs. Caldwell, 112 App. 341. 1342 WITNESSES Such ageiit must be called by the administrator to testify to such conversation, and cannot be first called by opposite party in inter- est to testify to conversation between himself and his principal. Elwell vs. Hicks, 238 111. 170. Where agent of deceased testifies as to consideration of note, sureties mav testify as to that fact. Marshall vs. Karl, 60 111. 208. It is only when an agent testifies to a transaction or conversation between such agent and the opposite party that such party may testify concerning the same conversation or transaction. Moore vs. Botto, 159 App. 522. A mere custodian of an instrument is not such agent as will render admissible evidence of claimant against personal repre- sentative. .^>i!r.';':i! Comer vs. Comer, 24 App. 526. Nor one who, as mere scrivener, draws mortgage for deceased and takes acknowledgment. Spencer vs. Boardman, 118 111. 55S. ': Party is not competent to testify as to matters occurring after termination of agency. First Natl. Bank vs. Dunbar, 118 111. 625. Where complainants claim as heirs, and put in evidence conver- sation with adverse party, between themselves and adverse party or disinterested witnesses and such adverse party, latter is com- petent to testify to the same conversation though all were prior to decease of ancestor. Vail vs. Eynearson, 249 111. 501. Widow is competent to rebut testimony as to her conversations with witnesses testifying, if not in presence of husband. Judy vs. Judy, 261 111. 470. Witness is not competent, however, to testify generally in the case, but is limited to denial or qualification of specific conversation. Calkins vs. Calkins, 220 111. Ill; Butz vs. Schwartz, 135 111. 180. Where any person having a direct interest in the event of the suit testifies therein on behalf of party suing or defending as representative, heir or party in interest, as to conversations or transactions between ancestor and adverse party, such adverse party is competent as to such conversations or transactions so given in evidence. Plain vs. Eoth, 107 111. 588; Freeman vs. Freeman, 62 111. 189; Louchs vs. Paden, 63 App. 545; XIV 111. Notes, 1130, §140. See also Vail vs. Ryuearson, 249 111. 501; Colston vs. Olroyd, 204 111. 435. Where heir testifies as to conversation with adverse party, in presence of decedent, adverse party is competent in rebuttal. Blanchard vs. Blanehard, 191 111. 450. Adverse party is not competent in rebuttal as to conversation or acts wdth or in presence of deceased, where same is testified to by disinterested witnesses. Volbracht vs. White, 197 111. 298. Where heirs testify to conversation with adverse party, since death of ancestor, adverse party may testify as to same conversation. Pease vs. Hunt, 60 App. 585. Where witness testifies in behalf of personal representative as to WITNESSES 1343 conversation between representative and adverse party, latter may testify. Straubher vs. Mobler, 80 111. 21 ; Stewart vs. Kirk, G9 111. 509. Where administrator brings action for rent accruing sul)sequent to death of his intestate, party chiiiuing as heir is competent. Pearce vs. I'eaice, 83 App. 77. Where administrator testifies to conversation with adverse party, latter may testify about same conversation. Parish vs. Vaucil, 132 App. 495. And this though conversation was in life time of decedent. Peim vs. Oglesby, 89 111. 110. If personal representative calls adverse party in interest, he is a competent witness when so called, and cross examination as to matters testified to in chief is competent and cannot be disregarded because witness would not have been competent unless so called. Bertelot vs. Stoner, 164 App. 605. Where part of evidence of incompetent witness is excluded, con- nected statement as to same transaction must be excluded. Admis- sion against interest cannot be retained and explanation rejected. Hawley vs. Hawley, 187 111. 351. Where conversations or admissions of interested party in pres- ence of deceased are given in evidence by disinterested witnesses, not agents, adverse party is incompetent. Volbracht vs. White, 197 lU. 298; Euckman vs. Alwood, 71 111. 155; Maher vs. Title Guarantee Co., 95 App. 365. The conversations or admissions to which an interested party may testify are the conversations or admissions which others have testified that he made, — not the conversations or admissions made by the deceased person ; and the party so called as a witness is com- petent to testify only to such admissions or conversations as are said to have been made by him out of the presence of the deceased person. Volbracht vs. White, 197 111. 298. Where witness, not an agent or party to suit, or interested, testi- fies to a conversation, party is limited in his testimony to the con- versation testified to by the witness. Donlevy vs. Montgomery, 66 111. 227 ; Darling vs. Wood, 168 App. 272, Where a witness, on behalf of executor of deceased, shall testify as to any admission or conversation by adverse party or party in interest, occurring prior to death and in absence of deceased, such adverse party or party in interest may testify to same admissions or conversations. Stevens vs. Brown, 12 App. 619. In suit to enforce vendor's lien against widow and heirs of vendee, plaintiff is competent as to conversation with a witness occurring before death and in absence of such deceased person given in evidence against him. Stonecipher vs. Hall, 64 111. 121. ■ Where administrator calls interested party as witness, he is competent to testify in behalf of other party to all matters brought out on examination by administrator. Harnish vs. Miles, 111 App. 105. Where Deposition of Deceased Taken: t When, in any civil action, a party sues or defends as the trustee 1344 WITNESSES or conservator of any idiot, habitual drunkard, lunatic or dis- tracted person, or as executor, administrator, heir, legatee or devisee of any deceased person, or as guardian or trustee of any such heir, legatee or devisee, and the deposition of such deceased per- son shall be read in evidence at the trial, any adverse party or party in interest may testify as to all matters and things testified to in such deposition by such deceased person. Turner vs. Lee, 254 111. 141; Tanner vs. Clapp, 139 App. 353. Deposition of party in relation to transactions, conversations and connnuuications had with adverse party, taken, filed and read, cannot be considered where adverse party becomes deceased with- out having testified and his personal representative is substituted. Smith vs. Billings, 177 111. 446. Interest : — In General: In chancery, a witness is not necessarily incom- petent because a party to the record. Aekmau vs. Potter, 239 111. 578. Nor is it a fatal objection that he has an interest in the event of the suit, but his interest must be against the party whose inter- ests are sought to be prejudiced by his testimony. Aekman vs. Potter, 239 111. 578; Dyer vs. Martin, 5 111. 147. The test of interest is wdiether he would gain or lose as a direct result of the suit. The interest must be a legal interest in the event of the suit, which is certain, direct and immediate, as other- wise it goes merely to the credibility of his testimony and not to his competency. Wetzel vs. Firebaiigh, 251 111. 190; Campbell vs. Campbell, 130 111. 466. The test of such interest is whether he will either gain or lose by the direct legal operation and effect of the judgment, or that the record will be legal evidence for or against him in some other action. Feitl vs. Chi. City Ey. Co., 211 111. 279; McClure vs. Otrit-h, 118 111. 320; Thompson vs. Wilson, 56 App. 159; Boyd vs. MeConnell, 209 111. 396; Smith vs. Goodell, 258 111. 145. The rule is that it is the real and actual interest that disqualifies the witness, and not the belief, understanding or feeling in regard to such interest. Pyle vs. Pyle, 158 111. 289. Children of incompetent witness are not incompetent from the fact that the establishment of her claim would inure to their bene- fit as her prospective heirs. Boyd vs. Boyd, 163 111. 611. Mother is competent for children claiming as heirs. Stewart vs. Kirk, 69 111. 501. Witness is never disqualified from testifying because of interest in result of suit if the extent of his own liability or claim has been previously established, and is certain, and a judgment either way would not directly and certainly increase such liability or claim. Weaver vs. Ritchie, 152 App. 130 ; Curtenius vs. Wheeler, 10 111. 462. — Equal Interest: When the witness has an interest in favor of the party calling him, he may still be competent if it appear that he has an equal interest on the .other side. Then his interests are WITNESSES 1345 equally balanced, and his mind in a state of equipoise, which leaves him inditi'erent to the result, as if he had no interest in the event. Baker vs. Updike, 155 111. 54; White vs. Koss, 147 111. 4:27; Kemann vs. Buckmaster, 85 111. 403; XIV 111. Notes, 1125, §110. Principal is a competent witness to prove execution in action against personal representative of deceased surety on note. Sconce vs. Henderson, 102 111. 376. — Pecuniary Interest: Courts of equity will disregard mere matters of form and will look to the substance and see on which side of the controversy lies the real interest of a party to the suit who is interested therein, and determine the competency of the witness from his interest in the case, regardless of the mere ques- tion of pleadings, when the question is as to his interest in the case. Bardell vs. Brady, 172 111. 420. Witness must be under a contingent or present liability or must be directly interested in result of proceeding. Estate of Ward vs. Williams, 153 App. 56. Where the position of witness is such as result of suit will ren- der him liable, he has a direct interest rendering him incompetent. Butz vs. Schwartz, 135 111. 180. Interest must be a pecuniary one ; a moral interest will not ren- der witness incompetent. Clark vs. Gibbons, 56 App. 357. Competency of witness may be affected by his liability for costs. Smith vs. Smith, 168 111. 488. Witness will not be excluded on ground of interest where inter- est is in doubt. Campbell vs. Campbell, 130 111. 466; Christiansen vs. Dunham Co., 75 App. 267. — Time of Interest: Interest must exist at time when witness is offered for examination or when his deposition is taken. Smith vs. Newton, 38 111. 230; Bank vs. Sandmeyer, 164 App. 141. But testimony taken on former trial inadmissible where, on sub- sequent hearing, personal representative is substituted for the adverse party. Eussell vs. Happ, 76 App. 417; Trunkey vs. Hedstrom, 131 111. 204. And same rule applies to depositions. Smith vs. Billings, 177 111. 446. Nor is testimony of adverse party competent where taken before master, but before hearing heirs or personal representatives are substituted for deceased ancestor. Clark vs. Harper, 215 111. 24; Allen vs. Allen, 157 App. 362. — Dower Interest: A witness is not incompetent by reason of the existence of an inchoate right of dower which depends upon contingency of survivorship. Ackman vs. Potter, 239 111. 578; Pain vs. Parson, 179 111. 185; Pyle vs. Pyle, 158 111. 289. Widow is not competent to testify to delivery of deed where interest reserved to her is greater than her dower interest, but may testify to delivery of deed, effect of which would deprive her of dower. White vs. Willard, 232 111. 464. — Disclaimer of Interest: Disclaimer of interest does not render witness competent where made for purpose of testifying. Volbracht vs. White, 197 111. 298 ; Albers Com. Co. vs. Sessell, 193 111. 153; Sullivan vs. Corn Pro. Co., 245 111. 9: Dyer vs. Hopkins, 112 111. 168. Ev.— 85 1346 WITNESSES But otherwise where he disclaims interest and it appears that he has no interest. Smith vs. West, 103 111. 332 ; Scheerer vs. Seheerer, 109 111. 11 ; Smith vs. Smith, 168 Jll. 4SS; Campbell vs. Campbell, 130 111. 466. Interest as Affecting Particular Persons : — Personal Representatives : Where administrator, independent of liis office of administrator, has no interest in the subject matter of the litigation, he is a competent witness. Yokem vs. Hicks, 93 App. 667; Shea vs. Doyle, 65 App. 471. In action on insurance policy by administrator of assured, plaintiff is competent witness regardless of whether or not he is interested in the suit as assignee of the policy. Casualty Co. vs. Maxwell, 127 App. 19. Administrator is competent witness in suit on behalf of estate, even though his wife is sole heir of intestate. Statute is not against the party suing or defending as personal representative, but against the party suing or defending adversely. Bailey vs. Eobison, 244 111. 16; I. C. E. R. Co. vs. Eeardon, 157 111. 372; Steele vs. Clark, 77 111. 471; Patterson vs. Collar, 34 App. 632; XIV 111. Notes, 1127, § 122. Heir at law competent witness for or against administrator on claim against estate. Freeman vs. Freeman, 62 111. 189; Patterson vs. Collar, 34 App. 632; Neish vs. Gannon, 198 111. 219. Upon application to require executor to disclose assets, he is not competent witness as to facts occurring prior to death of deceased. Booth vs. Tabbernor, 23 App. 173. It is discretionary with the court whether he shall be examined or not. Mer, Trust Co. vs. Egan, 222 111. 494; Wade vs. Pritehart, 69 111. 279. One who, during progress of a will contest, had procured his discharge as executor, and neither as party or otherwise, retains any interest in the suit, is competent, although before such dis- charge he was called as witness and withdrawn upon objection. Smith vs. Smith, 168 111. 488. On second trial of a cause, where administrator substituted for deceased plaintiff, such administrator is competent to testify as to former testimony of his intestate. C. & E. I. E. E. Co. vs. O'Connor, 119 111. 586; Melnturff vs. Ins. Co. of N. A., 248 111. 92. — Co-Defendants: A defendant is not incompetent against co- defendant from the fact that he is a defendant. He may testify if his evidence does not necessarily involve his own interest. Aekman vs. Potter, 239 111. 578. Where defendant is incompetent to testify in his own behalf, he is an incompetent witness for his co-defendant. Whitmer vs. Rucker, 71 111. 410; Linn vs. Linn, 261 111. 606. Nor is he competent to testify in his own interest when called by a co-defendant. Stuart vs. Fellows, 128 111. 480; Way vs. Harriman, 126 111. 132. Such co-defendant cannot be made competent by waiver of bene- fit of testimony to himself. Sullivan vs. Corn Products Co., 245 111. 9. Dismissing a witness as complainant and naming him as a WITNESSES 1347 defendant has no effect to render him an adverse party in interest to complainants. Volbracht vs. White, 197 111. 298; Bardell vs. Brady, 172 Til. 420; Pyle vs. Pyle, 158 111. 289; Wagonseller vs. Prettyman, 12 App. 341, A person who is by law a necessary party to a bill cannot be made a competent witness by being omitted. He is treated as in- competent the same as if he were a party to the suit. Alexander vs. Hoffman, 70 111. 114. In chancery proceedings, a complainant cannot deprive a party to the record of the testimony of a witness not a necessary or proper party, by making him a co-defendant. Pain vs. Parson, 179 111. 185. Where the only question is to whom defendant is to account, whether a co-defendant or complainant, and he makes no claim to the fund or his liability, he is a competent witness. White vs. Boss, 147 111. 427; Smith vs. West, 103 111, 332; Brad- shaw vs. Combs, 102 111. 428. Where defendant permits a bill to be taken pro confesso against himself, and thereby admits liability, he is competent against his co-defendant heir. Eann vs. Eann, 95 111. 433. — StockJiolders and Officers: Stockholders in a corporation are interested witnesses and incompetent to testify against represen- tative of deceased person in behalf of the corporation. Ittner Brick Co. vs. Ashby, 198 111. 562; Albers Com. Co. vs. Sessell, 193 III. 153; Con. Ice Mach. Co. vs. Kiefer, 134 111. 481; First Natl. Bank vs. Dunbar, 118 III. 625; Thrasher vs. Pike Co. Ey, Co., 25 111. 393. Though holding but one share and not a stockholder at time of transaction in question. Nichols vs. Estate of Cunningham, 181 App. 190. Must be stockholder at time of testifying; it is immaterial that witness was a stockholder at time of transaction involved. Bank vs. Sandmeyer, 164 App. 141. Stockholder in defendant company is incompetent to testify to facts and conditions existing prior to death of injured party. Natl. Woodenware Co. vs. Smith, 108 App. 477; Con, Ice. Mach. Co. vs. Kiefer, 134 111. 481. Stockholders cannot be made competent by any transfer of stock made for purpose of qualifying. First Natl. Bank vs. Sandmeyer, 164 App. 141; Christiansen vs. Towing Co., 75 App. 267. Stockholder must transfer his stock, execution of release to cor- poration is not sufficient. Thrasher vs. Pike Co. Ey. Co., 25 111. 340. An officer (secretary), who is not a stockholder, is competent. Casey vs. Sawyer Biscuit Co., 163 App. 145. Witness is not necessarily incompetent by reason of being a paid officer or agent of corporation, where adverse party sues or defends in a representative capacity. S. C. Institute vs. Avery, 157 App. 568. As cashier of, or clerk in bank. Young vs. First Natl. Bank, 51 111. 73. The secretary of a corporation, although a stockholder, is a com- 1348 WITNESSES petent witness to identify the books of the corporation and records of the company. Peake vs. Wabash Ey. Co., 18 111. 88; Nichols vs. Estate of Cunning- ham, 181 App. 190. Where the effect of testimony of stockholder is to charge him- self, and the preponderance of his interest is in opposition to his testimony, he is competent, though the effect of his testimony may charge personal representative of deceased stockholder. Thayer vs. El Plomo Mining Co., 40 App. 344. — Servants or Employes: Servant is not disqualified as witness on ground of liability over. He is only disqualified where judgment would be evidence against him of his liability. If witness should be subsequently sued by plaintiff for same wrong, judgment would be neither evidence for nor against him. He would not be relieved from liability by the judgment. Feitl vs. Chi. City Ey. Co., 211 111. 279; I. C. E. E. Co. vs. Weldon, 52 111. 290 ; C. & A. R. R. Co. vs. Flaherty, 202 111. 151 ; C. & A. R. R, Co. vs. Gore, 202 111. 188; XIV 111. Notes, 1126, §117. But where foreman, whose negligent order caused death, is made co-defendant, he cannot testify in own behalf or be called as a wit- ness by a co-defendant. The purpose for which he was made co-defendant can have no bearing. Sullivan vs. Corn Products Co., 245 111. 9. — Trustees of College : Acting without compensation, are compe- tent witnesses in favor of will, though institution is a beneficiary. Boyd vs. MeConnell, 209 111. 396. — Member of Church or Benefit Society: Members and trustees of a church, which is a beneficiary under a will, are competent to testify in favor of the will. The connection is purely voluntary and the church cannot impose any legal liability upon the members. As the trustees, pastor and members do not obtain any right to property bequeathed to a church, they are competent witnesses. Adams vs. M. E. Church, 251 111. 268; Ferraria vs. Vasconcellos, 31 111. 25. On the same principle that a stockholder in an ordinary corpora- tion is incompetent, a member of a benefit association is an interested witness and is incompetent to testify in behalf of society in suit on a benefit certificate by the personal representative of beneficiary. Cronin vs. Supreme Council, 199 111. 228; Speer vs. Amer. Star Assn., 157 App. 554. Where action is brought by beneficiary named in the certificate, members or officers are not incompetent. Sherett vs. Royal Clan, 37 App. 446. Beneficiary is a competent witness. Modern Woodmen vs. O'Connor, 182 App. 562. Nor is such beneficiary incompetent in action of interpleader between conflicting claimants. Farrenkoph vs. Holm, 142 App. 336. — Agent: Where liability of agent depends upon effect of testi- mony, agent is incompetent witness. Off vs. Trapp, 109 App. 49 ; Butz vs. Schwartz, 135 lU. 180. The mere fact of agency does not make agent incompetent wit- ness. Where neither the character of agency nor agent's conduct in that relation subject him to liability over to principal, he is a competent witness. Wright vs. Whitaker, 137 App. 598. WITNESSES 1349 Agent of adverse party, in action by personal representative, is incompetent to testify that payment on note was mistake. Bruner vs. Battcll, 83 111. 317. — Assignee of Corporate Stock: Plaintiff, in action against cor- poration for damages for refusal to transfer on its books stock of which he is the holder, is competent though assignor is deceased. Firemen's Ins. Co. vs. Peck, 126 111. 493. — Guardian and Ward: Guardian should not be allowed to tes- tify in favor of claim which wrongs and defrauds his ward. Ex parte Guernsey, 21 111. 443. Ward is competent witness in controversy with guardian. McFarland vs. MeFarland, 4 App. 157. Surety is competent witness in action by ward against guardian and surety. Seago vs. People, 21 App. 283. Minors having become of age, next friend, suing for them, com- petent after dismissal. Freeman vs. Easley, 117 111. 317. Ward is competent to testify to matters relating to deceased guardian other than his admissions or conversations, in action against sureties on his bond. People vs. Borders, 31 App. 426. — Next Friend: A procheim ami, or next friend by whom suit is prosecuted in behalf of an infant, is merely a manager or con- ductor of the suit. He is not a party of record, nor a party to the suit in any sense within the meaning of the rule as to competency of witnesses. The infant is the party both of record and in interest. I. C. R. E. Co. vs. Becker, 119 App. 221. — Donee: Donee claiming under gift from father is an incom- petent witness to uphold gift. Administrator is competent in interest of donee. Yokem vs. Hicks, 93 App. 667. — Partners: As against the administratrix of a deceased part- ner, surviving partner is not a competent witness. Mer. Bank vs. Fearman, 130 App. 116. In suit against executrix of member of alleged firm, on note executed in partnership name, surviving partners, though not sued, are not competent. Hnrlbut vs. Meeker, 104 111. 541. Other co-partners are incompetent in behalf of plaintiffs in action against legatee to establish a partnership between plaintiffs and deceased. Bragg vs. Geddes, 93 111. 39. On bill against executor by one claiming to be partner of defend- ant's testator, and thereby owner of interest in funds in hands of executor, which complainant asks to be decreed to him, such com- plainant is incompetent to testify to facts occurring prior to death of alleged partner. Loucks vs. Paden, 63 App. 545. — Grantees: Where one claims as heir and seeks to assert title because of that relation, defendants, who claim under deed from 1350 WITNESSES the ancestor, are not competent witnesses to defeat the right of heir under Statute of Descent. Leavitt vs. Leavitt, 179 111. 87; Fletcher vs. Shepard, 174 111. 262 Wilson vs. \Yilson, 158 111. 567; Yail vs. Kyneaison, 249 111. 501 Drury vs. Henderson, 143 111. 315; Way vs. Harriman, 126 111. 132 Ebert vs. Gerding, 116 111. 216; XIV 111. Notes, 1127, §135. Grantees are incompetent to testify as to delivery of deeds sought to be set aside. White vs. Willard, 232 111. 464; Linn vs. Linn, 261 111. 606. The purpose of the rule is to protect the estates of deceased persons from assaults of strangers. A suit by heir to set aside deed to another is not an assault upon the estate, but an attack upon the grantee. The result of setting aside the deed is to aug- ment the estate of the deceased. The theory of the statute is that as the mouth of the deceased is closed by death, so the mouth of his antagonist should, in the courts, be closed by law. Seaton vs. Lee, 221 111. 282. In such case, complainant is a competent witness. Vail vs. Eynearson, 249 111. 501; Grindle vs. Grindle, 240 111. 143; Hofner vs. Custer, 237 111. 64; Seaton vs. Lee, 221 111. 282; White vs. White, 231 111. 298; Fleming vs. Mills, 182 111. 464; Laurence vs. Laurence, 164 111. 367; Mueller vs. Eebham, 94 111. 142; Pigg vs. Carroll, 89 111. 205. A suit against grantees of deceased, which is not defended by the executor, heirs, legatees or devisees of deceased, is not one in which plaintiff is prohibited by the statute from testifying as to personal transactions with deceased. Gage vs. Eddy, 179 111. 492; Goelz vs. Goelz, 157 HI. 33; Grindle vs. Grindle, 240 111. 143. (Note: Goelz vs. Goelz, 157 111. 33; Gage vs. Eddy, 179 111. 492, are not cases where adverse parties sued or defended as heirs, lega- tees, devisees or personal representatives of deceased grantor. In former case, adverse parties were defending as immediate and remote grantees of a deceased person and not as heirs, and com- plainant claimed as equitable owner, and was competent ; in latter case, deceased grantor was merely a mesne conveyancer, and neither his heirs nor personal representatives were interested. In Grindle vs. Grindle, 240 111. 143, defendants were claiming as grantees, and neither the widow nor such children as were parties complainant, were incompetent, announcing the same rule as in Seaton vs. Lee, 221 111. 282 ; Hudson vs. Hudson, 237 111. 9. In White vs. White, 231 111. 298, complainant held competent but he claimed under contract with deceased, and defendant took as grantee of deceased.) In bill by subsequent grantee against heirs of prior gi-antee, to have prior deed set aside, grantor of complainant is incompetent where deed to complainant was simply to enable him to maintain the bill, which, if maintained, would result in interest to the witness. McCann, vs. Atherton, 106 111. 31. Grantee of deceased grantor may testify in support of deed where adverse party does not claim or bring suit as heir but as purchaser. Camfield vs. Plummer, 212 111. 541. — Makers of Negotiable Instruments: In suit by administrator upon promissory note given to his intestate, a party defendant, I WITNESSES 1351 though a surety, is incompetent as to an alleged alteration of the note by deceased. Lowman vs. Aubery, 72 111. 619. In suit upon note against administrator of surety, testimony of the maker, not a party to the suit, is competent to prove execution of note by surety. In such case, the interest of the maker is equally balanced. Sconce vs. Henderson, 102 111. 376, Where plaintiff sues as legatee of the payee of a promissory note, the makers are not competent to testify as to the consideration of the note. McAyeal vs. Gullett, 202 111. 214; Keenan vs. Blue, 146 App. 7; Eich- ardson vs. Eicbardson, 148 111. 563; Lockwood vs. Onion, 56 111. 506; Pierce vs. Jacobs, 157 App. 441; Mohlke vs. People, 117 App. 595: Kelly vs. Fallon, 108 App. 108. And wife is not competent to testify for maker as to agreement, although she kept books of account. Gifford vs. Wilkins, 24 App. 367. And the fact that such legatee assigns the note to another, who subsequently re-assigns it to such assignor, is immaterial. MacAyeal vs. Gullett, 202 111. 214. In action at law on death of payee of note, the principal maker of the note is not competent on behalf of the surety to prove agree- ment for extension of time. English vs. Landon, 181 111. 614; Dodson vs. Henderson, 113 111. 360. It is immaterial that maker has made default. Langley vs. Dodsworth, 81 111. 86. But on bill in equity by sureties to enjoin action at law on a note by administrator of payee, the maker is competent to testify to agreements of extension. English vs. Landon, 181 111. 614; Dodgson vs. Henderson, 113 111. 360 ; Bradshaw vs. Combs, 102 111. 428 ; Combs vs. Bradshaw, 6 App. 115; Dist. Phillips vs. Love, 54 App. 526. In action of trover brought by administrator to recover value of promissory note, a maker, not a party to the suit, whose liability over for payment depends upon outcome of suit, is incompetent. First Natl. Bank vs. Bressler, 38 App. 499. In suit by beneticiaries to charge trustees mth notes which were not collected, the makers are competent to show that they had a valid defense. Waterman vs. Alden, 144 111. 90. Debtor is not competent to prove usury after decease of creditor. Buck vs. Bleakley, 45 111. 100. In action by assignee of deceased payee, makers are competent witnesses as to fraud and circumvention. Leach vs. Nichols, 55 111. 273. See McAyeal vs. Gullett, 202 111. 214, Defendant is incompetent to testify to statement made to him by deceased executor, if not made in presence of co-executor, Berdan vs. Allan, 10 App. 91. Relating" to Particular Actions and Proceedings: — Ademption : Though children of witness would be heir to item or amount freed by ademption, she is a competent witness in prov- ing ademption of legacy to her brother. Tanton vs. Keller, 61 App. 625 ; Affd. 167 111. 129. — Advancements: Son not competent as against other heirs of 1352 WITNESSES his father, viz., children of a deceased brother, to establish advance- ment by father to such deceased brother, nor may he testify to any facts occurring before death of brother. Comer vs. Comer, 119 111. 170. On hearing exceptions to final report of administrator, there is no objection to competency of heir disputing the correctness of the report, to testify as to who were parties to a bill by other heirs against himself, the other heirs and the administrator for the pur- pose of establishing the fact of an advancement. Long vs. Long, 132 III. 72. — Citation to Discover Assets: It is discretionary with the court whether a party alleged to have property belonging to the estate shall be examined as a witness under oath. It is the court that orIIs niTTi Mer. Trust Co. vs. Egan, 222 111. 494; Wade vs. Pritchard, 69 111. 279; Booth vs. Tabbenor, 23 App. 173; XIV 111. Notes, 1127, § 133. — Dedication: Complainants and persons interested in establish- ing alleged dedication by ancestor are incompetent against heirs. Schneider vs. Sulzer, 212 111. 87. But see Marlow vs. Rich, 252 111. 442. — Bill for Accounting: On bill against executors for an account- ing for money due complainant by their testator, complainant is incompetent to testify as to contract. Vose vs. Strong, 144 111. 108. — Creditor's Bill: Complainant in creditor's bill is not compe- tent as to admissions of deceased in action defended by personal representative. Pratt vs. Pratt, 96 III. 184. — Claims Against Estates: "Widow of deceased is competent to testify against claim as to transactions in lifetime of deceased, but is incompetent to testify to conversations or admissions of deceased. Gregory vs. Gregory Estate, 129 App. 96. She is competent against estate where son files claim for neces- saries furnished her while parents were living apart through fault of husband. Todtleben vs. Eudowski, 181 App. 318. Heirs at law are competent witnesses upon behalf of claimant. Neish vs. Gannon, 198 111. 219; Patterson vs. Collar, 34 App. 632. And are competent against claim. Byers vs. Thomson, 66 111. 421; Douglas vs. Flillerton, 7 App. 102; Eobnett vs. Robnett, 43 App. 191; Seass vs. Wright, 138 App. 6. Husband of heir at law of deceased is competent. Freeman vs. Freeman, 62 111. 189. In proceeding to sell land to pay claim on note made by deceased to payee who had become deceased, heirs of maker are incompetent as to admissions against interest by payee. Daey vs. Goll, 242 111. 606. Claimant is incompetent as to any matters occurring before death of decedent. Branger vs. Lucy, 82 111. 91; Kempton vs. People, 139 App. 563. But is competent to testify to facts occurring after such decease. Parrish vs. Vancil, 132 App. 495; Vigus vs. O'Bannon, 118 HI. 334. Or concerning which administrator has testified. Parrish vs. Vancil, 132 App. 495. Or to rebut testimony of witness, called by adverse party, as to WITNESSES 1353 a settlement occurring between him and executor subsequent to death of deceased. Straubher vs. Mohler, 80 111. 21. Physician, claimant, competent as to transactions and conversa- tions testified to by widow with him, since death of decedent. Pease vs. Hunt, 60 App. 585. Complainant not competent witness to prove his claim on bill against executors and trustees. Grinton vs. Strong, 148 111. 587. Executor is competent on behalf of claimant. Boyd vs. Jennings, 46 App. 290. But where executor is residuary legatee, he is incompetent as to transactions between his testator and decedent against whose estate claim was filed. Steward vs. Sears, 89 App. 454. — Action for Wrongful Death: An administratrix, widow of intestate, suing under the injuries act for benefit of herself and next of kin, is competent to testify as to injuries and earnings of deceased, but is inhibited from detailing any admission or con- versation with her late husband. Horney vs. St. L. & N. Ey. Co., 165 App. 547 ; Lingreen vs. I. C. R. B. Co., 61 App. 174; I. C. E. E. Co. vs. Reardon, 56 App. 542; XIV 111. Notes, 1127, § 131. Where she witnessed accident, may testify as to what she saw, if otherwise competent. Lingreen vs. I. C. E. E. Co., 61 App. 174, Defendant is incompetent as to matters occurring anterior to death. Forbes vs. Snyder, 94 III. 374. Defendant is incompetent to testify as to conversations with deceased or warnings as to use of a machine. Kohl vs. Clarkson, 182 App. 519. But is competent as to alleged admissions against interest after death of decedent. Foster vs. Shepard, 258 111. 164. Testimony of widow called as witness on behalf of contestant not competent to prove condition of testator's health nor his habits of life shortly before his death. Donnan vs. Donnan, 256 111. 244. Where plaintiff, administrator, is father of deceased, his wife is an incompetent witness though, as one of next of kin, she also has direct interest in suit as concerning her separate interest. Thomas vs. Anthony, 261 111. 288; Craig vs. Miller, 133 111. 300. In proceeding under Dram Shop Act, defendant is a competent witness in his own behalf. Eeget vs. Bell, 77 111. 593. ^ — Proceedings Relating to Mortgages: Complainant is incom- petent in suit against heirs of mortgagor. Drury vs. Henderson, 143 111. 315; EitzMueller vs. Neuer, 130 App. 380; Morrison vs. Morrison, 140 111. 560; XIV 111. Notes, 1128 § 135. He cannot testify as to amount due and this where deed is claimed to be mortgage, and for that reason alleges his testimony would be of benefit to heirs. Reed vs. Kidder, 70 App. 498. 1354 WITNESSES Complainant is incompetent as to heirs and devisees of deceased grantee of mortgagor. Stiger vs. Bent, 111 111. 328. On bill to set aside foreclosure against mortgagor and executors of mortgagee, complainant is competent against mortgagor to testify that he gave her the land. In this case complainant resided on the land at time of filing original bill, but was not made party thereto. Sanford vs. Davis, ISl 111. 570. ]\Iortgagor is incompetent to testify that mortgage was not acknowledged, on bill filed by wife against executor of deceased mortgagee to enjoin sale under power. Warrick vs. Hull, 102 111. 280; Crane vs. Crane, 81 111. 165. Where executor files bill, a necessary party is incompetent to testify to payments made by his co-defendant to deceased. Kichardson vs. Hadsall, 106 111. 476. So in suit by administrator against mortgagor and subsequent purchasers from him, latter are not competent witnesses to prove payments. J Eoester vs. Byrne, 72 111. 466. Original mortgagee is incompetent against heir, where bill filed by assignee of mortgagee. Plain vs. Eoth, 107 111. 588. But if heir testifies to conversation between ancestor and com- plainant, latter is competent as to such conversation. Plain vs. Roth, 107 111. 588. Mortgagor is incompetent to testify to payments made on bill filed by personal representatives of mortgagee. Telford vs. Howell, 220 111. 52. Heir of mortgagor is incompetent on bill against heirs of mort- gagee to set aside foreclosure. Ebert vs. Gerding, 116 111. 216. Mortgagor is incompetent to testify on bill by executor of deceased assignee of mortgagee. Stevens vs. Hay, 61 111. 399. Nor is heir of mortgagor competent to prove usury where bill filed by personal representative of mortgagee. Mester vs. Zimmermann, 7 App. 156. Complainants, on bill against heirs of deceased mortgagee to have mortgage cancelled, are incompetent to testify to transaction with mortgagee in his lifetime. McGooden vs. Bartholic, 132 App. 392. Where bill filed against heirs, one who claims as a purchaser of part of the land included in mortgage, is incompetent against heir. Morrison vs. Morrison, 140 111. 560. — Bill to Establish Trust: On bill against heir to establish trust, complainant is incompetent to testify in own behalf. Johnston vs. Johnston, 138 111. 385; Michael vs. Mace, 137 111. 485; Kelsey vs. Snyder, 118 111. 544. On cross bill to establish trust against heirs, complainant is incom- petent. Mahoney vs. Mahoney, 65 111. 406; Holderraan vs. Gray, 130 111. 442; Boyd vs. Boyd, 163 111. 611. Widow is incompetent, Connelly vs. Dunn, 73 111. 218. WITNESSES 1355 Nor may widow, by statements after her husband's death, make evidence for herself and prove such statements. Laucaster vs. Blaney, 140 111. 1'03. But children of complainant, in bill to establish trust against heirs of deceased husband, are competent in her behalf. Boyd vs. Boyd, 163 111. 611. The children may testify to declarations of deceased at time deed was being drawn. Boyd vs. Boyd, 163 111. 611. On bill by widow and heirs to establish trust in favor of ancestor, widow is competent witness in her own behalf and behalf of heirs. Powell vs. Powell, 114 HI. 329. But defendant is incompetent to testify in his own behalf to any- thing but matters falling within the exception of admissions, con- versations or transactions to which other witnesses have testified. Powell vs. Powell, 114 111. 329. On bill to establish resulting trust by heirs of deceased mother against the heirs of their step-father, complainants are incompe- tent witnesses. Koester vs. Miller, 149 111. 195. — Partition: On bill for partition by heir who seeks to set aside deed to another heir, latter is incompetent, as he defends as grantee. Linn vs. Linn, 261 111. 606; Leavitt vs. Leavitt, 179 111. 87; Pleteher vs. Shepard, 174 111. 262. Thus grantee is not competent in his own behalf to prove the delivery of the deed as against an heir or devisee of the land. Hayes vs. Boylan, 141 111. 40O; Walls vs. Eitter, 180 111. 616. So heir of deceased is incompetent to testify against other heirs that a re-conveyance by her to her father, of land previously con- veyed by him to her, was destroyed at her father's request, thus intending to re-invest title in her. Fletcher vs. Shepard, 174 111. 262. In such case, complainant is a competent witness. Seatou vs. Lee, 221 111. 282; Hudson vs. Hudson, 237 111. 9; Grindle vs. Grindle, 240 111. 143; Vail vs. Eynearson, 249 111. 501. Where among those who are conceded to be heirs there arises a controversy as to the division of the estate among them, they may testify as such testimony does not tend to reduce the estate among them. Laurence vs. Laurence, 164 111. 367. In proceeding for partition among heirs of a common ancestor, and for the adjustment of advancements among them, the heirs are competent witnesses for and against each other. Pigg vs. Carroll, 89 111. 205. The right to testify is denied so long as relation to estate as heir is a controverted question. In re Estate of Maher, 210 111.- 160 ; Crumley vs. Worden, 201 111. 105; Laurence vs. Laurence, 164 111. 367. Where heirship claimed through disputed marriage, claimant incompetent where adverse party defends as heir. Crane vs. Stafford, 217 111. 21. Husband of co-tenant is competent for the reason that the litiga- tion is concerning the separate property of the wife, r Grindle vs. Grindle, 240 111. 143. 1356 WITNESSES' Husband is competent witness on behalf of wife in respect to advancements as affecting rights of the parties. Pigg vs. Carroll, 89 111. 205; Mueller vs. Eebhani, 94 111. 142; XIV 111. Notes, 1125, §113. Where all parties claim under same will, party in interest is competent. Fleming vs. Mills, 182 111. 464. Where parties suing and defending claim property as heirs of different deceased persons, they are alike incompetent in their own behalf. Gilliam vs. Wright, 246 111. 398. Likewise are the husbands of co-tenants. Gilliam vs. Wright, 246 111. 398; Heintz vs. Dennis, 216 111. 487. Thus where complainants claim title as heirs of grandparent and defendants claim as heirs of parent, neither party is competent to testify against interest of others. Worrell vs. Torrence, 242 Jll. 64. Where heir sets up advancem'ent, he is incompetent in his own behalf. Comer vs. Comer, 119 111. 170. Nor where one child claims property under contract with parent, is such child competent in her own behalf, nor her husband, to prove the contract. ■'" Way vs. Harriman, 126 111. 132; Stodder vs. Hoffman, 158 111. 486; Jones vs. Aljbott, 235 111. 220. Defendant is incompetent to testify where complainant sues as devisee. Winter vs. Dibble, 251 111. 200. Defendants disputing title of a deceased person whose heirs are asserting such title as complainants in bill for partition, are not competent witnesses, Wilson vs. Wilson, 158 111. 567. On bill by one heir against two co-heirs, where one defendant claims entire estate, alleging resulting trust, the other defendant disclaiming any interest, the latter will be a competent witness for his co-defendant. ;; c'-y Scheerer vs. Scheerer, 109 111. 11. On cross bill by widow to have resulting trust declared in her favor, she is not a competent witness to establish the trust as against Connelly vs. Dunn, 73 111. 218; Lancaster vs. Blaney, 140 111. 203; Boyd vs. Boyd, 163 111. 611. So widow is incompetent to testify to advancements made to deceased, resulting in benefits to land. Barnard vs. Barnard, 119 111. 92. If adverse party testifies as to what property widow brought with her upon her marriage, she may testify as to such matter. .1.,; Connelly vs. Dunn, 73 111. 218. Widow may testify to facts occurring after death of husband d,nd also in rebuttal of admissions testified to have been made by her. Gillespie vs. Gillespie, 159 111. 84. But widow is not competent to rebut testimony concerning con- versations with or in presence of her husband. Judy vs. Judy, 261 111. 470. Where a witness testifies to interview with alleged widow, such WITNESSES 1357 widow is competent to testify in respect to same, by showing that it never occurred, and that she never saw such witness before. Joues vs. Gilbert, 135 111. 127. Widow is not competent against heirs to avoid an ante-nuptial contract made by her. Achilles vs. Achilles, 137 111. 589; Taylor vs. Taylor, 144 111. 436; Yarde vs. Yarde, 187 111. 636; Stokes vs. Stokes, 240 111. 330; Collins vs. Phillips, 259 111. 405; XIV 111. Notes, 1125, §113. Persons whose interests lie with sustaining bill, their interests being dependent upon title alleged by complainant, are competent as witnesses when called by defendants whose interests are adverse to that of witness. A witness is competent when called by the party opposed to him in interest. Duflfy vs. Duffy, 243 111. 476. On bill for partition by heir, one who files cross bill for specific performance of a contract to convey, made by her with ancestor, is an incompetent witness, nor may her husband testify in her behalf. GladviUe vs. McDole, 247 HI. 34. In partition proceedings by widow, to which her children and those of former wife of deceased are parties, the children by former wife are not competent witnesses against complainant's children to testify as to declarations of their father that the land was their mother's and would eventually be theirs. Such step-children are, however, competent witnesses against complainant as doweress and grantee of homestead. Kirby vs. Kirby, 236 111. 255. The fact that other children of deceased ancestor were made defendants does not prevent their testifying for their co-defendant if their interests were in fact adverse to her interest. If deed sought to be set aside were held invalid and witnesses would share with complainants, their interests would be hostile to the sustaining of the deed of their co-defendant, and thus competent as against com- plainants. Jones vs. Jones, 213 111. 228. — Bill to Set Aside Deed: Complainant suing as heir is com- petent in own behalf as defendant defends as grantee and not as heir. Seaton vs. Lee, 221 111. 282; Hudson vs. Hudson, 237 111. 9; Vail vs. Eynearson, 249 111. 501; Dean vs. Long, 122 HI. 447. But such complainant is not competent where defense is by administrators and heirs of grantee. Guild vs. Warne, 149 111. 105; Hudson vs. Hudson, 237 111. 9. Where suit is by heir or devisee to set aside deed by ancestor, defendant grantee does not defend as heir and is incompetent in his own behalf. Leavitt vs. Leavitt, 179 111. 87; Pyle vs. Pyle, 158 111. 289; Hayes vs. Boylan, 141 111. 400; Vail vs. Eynearson, 249 111. 501. Such grantees cannot testifv as to delivery of the deeds. White vs. Williard, 232 111. 464; Linn vs. Linn, 261 111. 606. On bill by heirs of infant to set aside deed made during infancy, defendant grantee is incompetent to testify to acts of ratification by grantor. Sayles vs. Christie, 187 111. 420. On bill against heirs and administrators of deceased grantee to 1358 WITNESSES set aside deed executed by complainant and her husband to intes- tate, she is an incompetent witness. Crane vs. Crane, 81 111. 165. Where devisee seeks to set aside deed against widow and heirs of grantee, widow is incompetent to testify generally. Griffin vs. Griffin, 125 111. 430. But she is competent to prove that after her husband's death, she found the deed among his papers, that being a fact occurring after death of such deceased husband. Griffin vs. Griffin, 125 111. 430; Baker vs. Baker, 239 111. 82; White vs. Willard, 232 111. 464. Where deed made in attempt to convey under provision of will is attacked by heirs of deceased, complainants are not incompetent to testify against son of deceased grantee. Fleming vs. Mills, 182 111. 464. Where if deed is sustained, party's interest is greater than if deed is set aside, his co-defendant is a competent witness against him. Ackman vs. Potter, 239 111. 578. And so, if interest is with complainant if deed is cancelled, de- fendant may testify for co-defendant who claims under deed. Jones vs. Jones, 213 111. 228. In proceedings under Burnt Records Act, grantor of deed with full covenants is, as against persons claiming as heirs, incompetent to prove ownership and conveyance of property described in lost deed. King vs. Worthington, 73 111. 161. Where a party is an incompetent witness, testimony favorable to defendants cannot be considered and all other parts of his testi- mony accompanying and explaining same be excluded. Hawley vs. Hawley, 187 111. 351. — Specific Performance: Neither complainant nor her husband is competent where defendants claim as heirs of ancestor alleged to have made contract. Gladville vs. McDole, 247 111. 34; Vail vs. Eynearson, 249 111. 501; Heintz vs. Dennis, 216 111. 487; Shovers vs. Warwick, 152 111. 355; Shaw vs. Schoonover, 130 111. 448; XIV 111. Notes, 1125, §113. Such complainant cannot testify as to the contract. Cassell vs. Cassell, 104 111. 361 ; Wachter vs. Blowney, 104 111. 610. But is competent to testify as to performance of contract so far as it affects land held by children or heirs, not as heirs but as voluntary grantees, though testimony cannot be considered as to land held by them as heirs. Oswald vs. Nehls, 233 111. 438 ; Allen vs. Allen, 157 App. 362. And fact that administrator w^as joined as co-defendant does not render complainant incompetent where no relief is granted against estate or land held by children as heirs. Oswald vs. Nehls, 233 111. 438. Complainant is competent to testify to same conversations and transactions, between him and deceased, put in evidence by defendants. Calkins vs. Calkins, 220 111. Ill; Vail vs. Eynearson, 249 111. 501; Marshall vs. Peck, 91 111. 187; Colston vs. Olroyd, 204 111. 435. Where one defendant defaults and admits he should convey, he is a competent witness against his co-defendant, defending as heir, if called by the adverse party. Aeicman vs. Potter, 239 111. 578 ; Eann vs. Eann, 95 111. 433. WITNESSES 1359 But omitting necessary party will not render him competent. Alexander vs. Hoffman, 70 111. 11-i. Statute is for benefit of heirs and not of strangers. Complainant is a competent witness after dismissal of suit as to minor heir. Walsh vs. Wright, 101 111. 178; Cf. Alexander vs. Hoffman, 70 111. 114; Ackman vs. Potter, 239 111. 578. Where bill is filed by son, under oral contract with deceased father, against mother who claims as grantee, he is a competent witness. White vs. White, 231 111. 298. In action against heirs and devisees to enforce contract of testator to devise to complainant, heirs and devisees are competent witnesses against complainant. Weingartner vs. Pabst, 115 111. 412. Where heir of deceased wife sues to compel surviving husband to comply with ante-nuptial contract, husband is incompetent to testify to acts and declarations of wife showing contract to be inoperative. Dunlop vs. Lamb, 182 111. 319. Wliere children of a life tenant file bill to compel executors and trustees of grantor to deliver deed executed by their testator, and make life tenant a co-defendant, such co-defendant is an incompetent witness against executors and trustees, where latter file cross bill to cancel deed and the lease of such tenant, as the effect of his testimony is to diminish the estate. Miller vs. Mears, 155 111. 284. — Bill to Contest Will: Complainant is not competent to testify as to transactions occurring prior to and at time of decease of testator, where executors and legatees are parties defendant. The fact that contest is between heirs of deceased is immaterial. Waugh vs. Moan, 200 111. 298 ; Bevelot vs. Lestrade, 153 111. 625. They are not competent to testify in refutation of charges as to certain acts which witnesses for defendants testify were stated to them by testator in absence of such complainants. Wickes vs. Walden, 228 111. 56. Where complainant is incompetent, his wife is incompetent. Wickes vs. Walden, 228 111. 56; Bevelot vs. Lestrade, 153 111. 625. Nor is husband of a complainant competent. Smith vs. Smith, 168 111. 488. Administrator wdth will annexed is incompetent against heirs on bill to construe will where his interest is adverse to heirs. Anderson vs. Anderson, 191 111. 100. Executor whose interest lies in sustaining will is incompetent. Jones vs. Abbott, 235 111. 220; Godfrey vs. Phillips, 209 111. 584; Bardell vs. Brady, 172 111. 420; Jones vs. Greiser, 238 111. 183. Nor is his wife competent. Jones vs. Abbott, 235 111. 220 ; Harp vs. Parr, 168 111. 459. Executor or trustee procuring discharge is competent. Smith vs. Smith, 168 111. 488. Person refusing to act as executor is competent and though made defendant, if he files disclaimer and is dismissed. Campbell vs. Campbell, 130 111. 466. Partner of executor who, by contract in a business partnership agreement, would receive thereunder part of commission of executor, is incompetent as against contestants. Baily vs. Beall, 251 111. 577. Competency of an attesting witness is to be tested by the facts 1360 WITNESSES existing at time of attestation. If then competent, any subsequent incompetency will not j)revent probate of will, and if then incom- petent, subsequently acquired competency will not validate the will. Competent attesting witness is not rendered incompetent by pur- chasing interest of devisee. In re will of Delavergne, 259 111. 589. "Where executor is bound by contract with testator, to execute prior will, without compensation, he is competent on part of con- testants in a proceeding to set aside a second will. Godfrey vs. Phillips, 2U9 111. 58-4. The test of interest which determines competency is whether he would gain or lose as a direct result of the suit. The interest must be a legal interest in the event, which is certain, direct and imme- diate, as otherwise it goes merely to the credibility of the witness and not to his competency. Wetzel vs. Firebaugh, 251 111. 190; Dowie vs. Sutton, 126 App. 47. Legatee, not heir, who has no interest by descent, is competent for contestant. Keithly vs. Stafford, 126 111. 507. Defendant, principal beneficiary or devisee, incompetent in favor of will. Jones vs. Abbott, 235 111. 220; Taylor vs. Pegram, 151 111. 106; Crowley vs. Crowley, 80 111. 469. Nor is his deposition competent. Freeman vs. Easley, 117 111. 317, Competent as to facts occurring after death of testator. Holloway vs. Galloway, 51 111. 159. Beneficiary of will and trustees to carry it into effect, are incom- petent where heirs at law are contesting. In re Tobin, 196 111. 484; XIV 111. Notes, 1129, §137. Where interest of one who is heir and legatee is in favor of setting aside the will, she is incompetent, though defendant, and called by complainant. Dougherty vs. Gaflfney, 239 111. 640; Winter vs. Dibble, 251 111. 200: Nor does the fact that an agreement not to contest, together with acceptance of legacy, render her competent as to other heirs than complainant. Dougherty vs. Gaflfney, 239 111. 640. Devisees under will, made defendants, are incompetent for com- plainant, where they would receive a larger part of estate as heirs than as devisees. They should not be excluded as heirs and on that ground alone. Their interests should first be ascertained. Campbell vs. Campbell, 130 111. 466. The fact that legatee has been promised by contestants of will the amount of his legacy or more if they are successful, does not disqualify him as witness. Wetzel vs. Firebaugh, 251 111. 190. A person whose interests are adverse to those of executors, devisees and legatees, named as a defendant instead of complainant, is not competent in behalf of complainant. Pyle vs. Pyle, 158 111. 289. One of the heirs at law, complainant in a bill filed to set aside will, is not competent to give testimony impeaching the will, where adverse parties defend as devisees. Taylor vs. Pegram, 151 111. 106. I WITNESSES 1361 On bill by heirs at law, against parties defending as legatees, where the object of the suit is not merely to adjust the rights of the heirs-at-law, but to take the estate from the legatees, some of whom are not heirs at law, and vest it in the heirs at law, such heirs are not competent to show want of testamentary capacity. Brace vs. Black, 125 111. 33. A contestant is incompetent to prove want of testamentary capacity. Taylor vs. Pegi'am, 151 111. 106. Members and trustees of a church which is beneficiary under a will are competent in favor of will. Adams vs. M. E. Church, 251 111. 268. As are trustees of a college where they receive no compensation. Boyd vs. MeConnell, 209 111. 396. The fact that the complainant calls a defendant beneficiary as a witness, for purpose of proving genuineness of certain letters, does not remove the disqualification of the witness to testify in her own behalf on the issues of the case. Garrus vs. Davis, 234 111. 326. Wife of legatee is not competent for the reason that she cannot testify either for or against her husband. Wetzel vs. Firebaugh, 251 111. 190. Where acts and declarations of interested party, at and during the time of the execution of the will, are testified to by disinterested persons, he is not thereby rendered competent to contradict their statements as to what he said and did on the occasion of the making of the will. Volbracht vs. White, 197 111. 298. Surviving husband is incompetent to testify to any fact of trans- action, the knowledge of which was obtained by means of the mar- riage relation. Wetzel vs. Firebaugh, 251 111. 190 ; Schreffler vs. Chase, 245 111. 395. He cannot testify to any conversations, with testatrix and other witnesses, in his presence during the marriage. Wetzel vs. Firebaugh, 251 111. 190. Widow is incompetent if her interest lies with the side offering her testimony, regardless of whether she is complainant or defendant. Baker vs. Baker, 202 111. 595; Freeman vs. Fteeman, 117 111. 317. Widow incompetent as to mental capacity of testator where based on conversations with him, although testimony adverse to her interest. Donnan vs. Donnan, 236 111. 341. Widow not competent to testify as to any fact or transaction, the knowledge of which she obtained by reason of the marriage relation. And this is the case as to amount of notes and mortgages owned by husband. Stephens vs. Collison, 256 111. 238. In suit by heirs to set aside will, a divorced wife of testator is not competent to give such testimony in regard to conversations or occurrences which happened during the existence of the marriage, as would tend to overthrow the will. Wickes vs. Walden, 228 111. 56. Ev.— 86 1362 WITNESSES Person incompetent as a witness will not be rendered competent by executing release of his interest made for that purpose only. Volbracht vs. White, 1^7 111. 298. Subjects of Testimony: — Admissions and Conversations of Deceased: Where any person having a direct interest in the event of the action testifies therein on behalf of party suing or defending as representative, heir or party in interest, as to conversations or transactions between ancestor and adverse party, such adverse party is competent as to such conversations or transactions so given in evidence. Plain vs. Roth, 107 111. 588 ; Colston vs. Olroyd, 204 111. 435. Where the heir testifies to a conversation between ancestor and adverse party, latter is competent witness as to same conversation. Plain vs. Roth, 107 111. 588; Freeman vs. Freeman, 62 111. 189; Louehs vs. Paden, 63 App. 545; XIV 111. Notes, 1130, § 140. Where heir testifies as to conversation with adverse party in presence of decedent, adverse party is competent in rebuttal. Blanchard vs. Blanchard, 191 111. 450. Adverse party is not competent in rebuttal as to conversations, or acts with or in presence of deceased, where same is testified to by disinterested witnesses. Volbracht vs. White, 197 111. 298. Where disinterested witness testifies to any conversation or state- ment of a party interested adversely to executors, devisees and legatees, such conversation or statement being made in presence of deceased, the party making such statement is not competent to testify thereto, — the conversations and statements to which he can testify being those made by him out of presence of deceased, and testified to by a disinterested witness. Volbracht vs. White, 197 111. 298. Adverse party is competent as to conversations or admissions, alleged to have been made against interest, after death of intestate, and may not only deny making same, but may prove whole con- versation though it destroy the admission. Foster vs. Shepard, 258 111. 164; Vail vs. Rynearson, 249 111. 501; Stewart vs. Kirk, 69 111. 509. But he is not competent to explain a conversation attributed to him by his own witness, though witness, after cross examination on the point, is subsequently recalled by administrator. Richeson vs. Sternberg, 65 111. 272. Party is limited in denial or explanation of conversations or transactions to that testified to by personal representative or wit- nesses in latter 's behalf. Calkins vs. Calkins, 220 111. Ill; Donlevy vs. Montgomery, 66 111. 227. — Facts Occurring After Decease of Ancestor: A party may testify as to facts occurring after the death of the deceased person. Hilt vs. Heinberger, 235 111. 235; Emerich vs. Hileman, 177 111. 368. Widow may testify as against heirs that she had not abandoned homestead. Carr vs. Carr, 177 111. 454. Heirs may testify as to facts and circumstances occurring after death of ancestor. Kingman vs. Higgins, 100 HI. 319. ■il WITNESSES 1363 Though devisees under will and defendants in bill to contest same. HoUoway vs. Galloway, 51 111. 159. — Testimony Adverse to Interest: Interested witness may testify against interest when called by party against whom his interest lies. Hoffner vs. Custer, 237 Uh 64; Godfrey vs. Phillips, 209 111. 584; McClure vs. Obrich, 118 111. 320i; Remann vs. Buckmaster, 85 111. 403. It is only when called to testify in his own interest that a party or interested person is disqualified as a witness. He is competent when called bv the party opposed to him in interest. Duffy Vs. Duffy, 243 111. 476; Pyle vs. Pyle, 158 111. 289; McKay vs. Riley, 135 111. 586. If such witness be called by adverse party, and is cross examined as to same point, such testimony given in cross examination cannot be thereafter objected to. Bertelot vs. Stoner, 164 App. 605; Harnish vs. Miles, 111 App, 105. — Admissions, Conversations and Transactions of Deceased Agent: In suit on contract, party is not competent as witness to admission of or conversation between himself and agent, unless same was made or had in presence of surviving agent of adverse party, and then only, except where conditions are such that, under pro- visions of sections 2 and 3 of the Act in regard to Evidence and Depositions, he would have been permitted to testify if deceased person had been principal and not agent. Rothstein vs. Siegel, Cooper & Co., 102 App. 600; Zeigler vs. Clin- ton Ins. Co., 84 App. 442; (Jones and Addington 111. Statutes, Annotated, H 5521) ; XIV 111. Notes, 1131, § 144. And the foregoing rule applies to actions on penal bonds. Henry vs. Tiffany, 5 App. 548. Insured is not a competent witness against defendant insurance company as to conversation with deceased agent. Zeigler vs. Ins. Co., 84 App. 442. Beneficiary in certificate is incompetent to testify to any conver- sation with deceased treasurer of local lodge. Grand Lodge vs. Young, 123 App. 628. If conversation or admission is given in evidence by disinterested person, it must appear that at the very time of making declarations, such agent be transacting or doing the business of the principal, so that the statements of the agent become a part of the res gestae. Grand Lodge vs. Young, 149 App. 603. A party may testify to payment of insurance premiums to deceased agent of insurer. (Amendment of 1899 changed statute to read ' ' conversation ' ' instead of ' ' transaction. ' ' ) Helbig vs. Citizens Ins. Co., 234 111. 250; Affg. 138 App. 115; S. S. 120 App. 158. And mav also testifv to delivery of the policy. Helbig vs. Citizens Ins. Co., "234 111. 250. Incompetency of adverse party is not removed by his reading in evidence a portion of a deposition by the agent, taken by the defend- ant, but not put in evidence by such defendant. Doggett vs. Greene, 254 111. 134. "Where agent of party becomes deceased after giving testimony in case where new trial is granted, adverse party -wall not thereby 1364 WITNESSES become competent to testify on second trial, even under stipulation that on future trial agent's testimony taken by stenographer should be read as deposition. TTunkey vs. Hedstrom, 131 111. 204. But where such testimony is read in evidence, adverse party may then testify concerning such matters so read. Chi, Trust Co. vs. Sagola Lbr. Co., 242 111. 468, It is only conversations and transactions between the party suing and a deceased agent of the principal sued that are excluded. A party to a suit may testify as to transactions of a deceased agent of adverse party with persons not parties to the suit. C. C, C, & St. L. By. Co. vs. Best, 68 App. 532. — Books of Account: A witness is competent to identify a book of original entry kept by himself, notwithstanding he has a pecu- niary interest in result of litigation and adverse party is defending in representative capacity. McGlasson vs. Housel, 127 App. 360; Eichardson vs, Allmon, 40 App. 90; Ailing vs. Breeze, 27 App. 595; Nichols vs. Estate of Cun- ningham, 181 App, 190; Miller vs. Pratz, 179 App. 204. HUSBAND AND WIFE. In General: Husband and wife are incompetent to testify for or against each other except where the wife would, if unmarried, be plaintiff or defendant ; or where the cause of action grows out of a personal wrong or injury done by one to the other, or grows out of the neglect of the husband to furnish wife with suitable support ; and except the litigation shall be concerning the separate property of the wife, and suits for divorce; and except, also, upon policies of insurance, so far as relates to the amount and value of the property alleged to have been destroyed ; or in actions against carriers, so far as relates to loss of property and the amount and value thereof ; or in all matters of business transactions which were had and con- ducted by such married woman as agent of her husband, except as to admissions or conversations to the other, whether made by him to her, by her to him, or by either to third persons. Sehreffler vs. Chase, 245 111. 3&5; Way vs. Harriman, 126 111. 132; Mueller vs. Eebham, 94 111. 142; XIV 111. Notes, 1114 et seq., §§31 et seq. The underlying reason of the rule prohibiting a husband or wife from testifying for or against each other's interests is founded on the broad ground of public policy, Fearn vs, Postlewaite, 240 111. 626. Admissions, Conversations and Acts: On ground of public policy, neither the husband nor wife may testify to communications and conversations occurring between them during coverture, and that inability continues even after rela- tion is severed by death or divorce. Wickes vs. Walden, 228 111. 56; Geer vs. Goudy, 174 HI. 514; Goelz vs. Goelz, 157 111. 33. Widow is not competent witness to testify to any fact or trans- action, the knowledge of which was obtained by means of marriage relation, whether same be severed by death or divorce, Donnan vs, Donnan, 256 111. 244; Stephens vs. Collison, 256 111. 238; Reeves vs, Herr, 59 111. 81 ; Griffith vs. Griffith, 162 111, 368. WITNESSES 1365 And this is true though called against her interest, Abrahams vs. Wooley, 243 111. 365; Donnan vs. Donnan, 236 111. 341. Widow may testify to facts occurring after husband's death. Gillespie vs. Gillespie, 159 111. 84; Griffin vs. Griffin, 125 111. 430; Grose vs. Kutledge, 81 111. 266. "Wife is not competent to testify to any conversations with her husband during coverture. State Bank vs. Barnett, 250 111. 312. Irrespective of her interest in the suit. Baker vs. Baker, 239 111. 82. (Note: Deniston vs. Hoagland, 67 111. 265, was decided prior to amendment of 1874 ; Galbraith vs. McLean, 84 111. 379, was decided upon authority of Deniston case, and Christy vs. Ashlock, 93 App. 651, on these authorities. See Goelz vs. Goelz, 157 111. 33; Donnan vs. Donnan, 236 III. 341.) Widow may testify to acts, e. g., delivery of deed. Baker vs. Baker, 239 111. 82; White vs. Willard, 232 111. 464; Grif- fin vs. Griffin, 125 111. 430. May also testify in rebuttal denying statements testified to have been made in presence of such witnesses but not in presence of husband. Judy vs. Judy, 261 111. 470. Husband is incompetent to testify to any fact or transaction, the knowledge of which was obtained by means of the marriage relation. Wetzel vs. Firebaugh, 251 111. 190; Schreffler vs. Chase, 245 111. 395. Surviving husband is incompetent as to any conversation of deceased wife, but he is competent witness to testify to the delivery of a deed by her. Weigand vs. Eutschke, 253 111. 260. Facts obtained from one by the other because of the marital rela- tion shall not be made public through testimony in a court of law. Facts which come to his or her knowledge by means equally acces- sible to any person not standing in the relation of husband or wife, may be testified to by surviving spouse, where otherwise competent. In this action, plaintiff beneficiary, a physician, was allowed to testify as to physical condition of wife at time and prior to applica- tion for policy. Supreme Lodge of Mystic Workers vs. Jones, 113 App. 241. A third person, hearing conversation between husband and wife, may give evidence of it. Gannon vs. People, 127 111. 507; People vs. Lamberg, 160 App. 644. Where marriage is void, alleged second wife is competent as to admissions of husband that he had never been divorced from first wife. Cole vs. Cole, 153 111. 585; Clark vs. People, 178 111. 37; Hoch vs. People, 219 111. 265. Competency of Wife : — Actions By or Against Hushand: In actions by husband, wife is not competent in his behalf. Gordon vs. Reynolds, 114 111. 118; Eendleman vs. Eendleman, 156 111. 568; Keithley vs. Wood, 151 111. 566. In suit by husband concerning property in which wife has no interest, he is not competent. Francis vs. Ehoades, 146 111. 635 ; Keithley vs. Wood, 151 111. 566. Wife incompetent in action for criminal conversation. Groom vs. Parables, 28 App. 152. 1366 WITNESSES "Wife is not competent witness in foreclosure to prove defense of payment. Gemkow vs. Link, 225 111. 21. Where husband exchanges property and takes deed for that obtained in wife's name, she is not a competent witness for the Imsband. Mitchell vs. McDougal, 62 111. 498. In action against sureties of a note, wife of principal maker is not competent witness for defendant, for reason her husband is directly interested in result of suit. Craig vs. Miller, 133 III. 300; Phares vs. Barbour, 49 111. 370. Wife is incompetent for husband as to transactions which occurred before marriage. Eoxburgh vs. Eoxburgh, 162 App. 364. In action for slander, wife of defendant is not a competent wit- ness for him. Hawver vs. Hawver, 78 111. 412. In action of trespass, wife is incompetent for husband. Eeidel vs. Crocker, 161 App. 608; Poppers vs. Wagner, 33 App. 113. Though called to deny exclamation testified to by plaintiff as hav- ing been made by her. Wolf vs. Van Housen, 55 App. 295. Nor is she competent in action of replevin against him for house- hold goods. Ginsburg vs. Morrall, 105 App. 213. — Agency: Statute permits wife to testify for her husband when she has acted as agent of her husband in the particular business transaction. Dannewitz vs. Miller, 179 App. 185; Lumbard vs. Holdiman, 115 App. 458 ; Pettingill vs. Drake, 14 App. 424. She may testify as to conversations with parties where she acted as agent. MeDavid vs. Eork, 92 App. 482. To make wife competent, it must appear she was authorized by her husband to conduct some business transaction for him, which she did conduct. Mere conversation with party is not enough. Donk Bros. Coal Co. vs. Stroetter, 229 111. 134. If she makes a contract as her husband's agent, she is competent to prove same. Eobertson vs. Brost, 83 111. 116; Elec. Vehicle Co. vs. Price, 138 App. 594; XIV 111. Notes, 1116, §42. Agency must be shown. Powell vs. Powell, 114 111. 329; Mitchell vs. Hughes, 24 App. 308. Competency is limited to extent of agency. Poppers vs. Miller, 14 App. 87; I. C. E. E. Co. vs. Messnard, 15 App. 213. Where she is administratrix and brings action, she is competent to testify against estate as to acts done as agent of her deceased husband. Eobnett vs. Eobnett, 43 App. 191. — -In Actions By or Against Both: Where both are defendants, each is competent in own behalf. Vercler vs. Jansen, 96 App. 328; Kelly vs. Hale, 59 App. 568. See also Thomas vs. Anthony, 179 App. 463. Where husband and wife are jointly sued upon a contract lia- bility, the wife is not a competent witness. Thomas vs. Anthony, 261 111. 288; Eev. 179 App. 463; Hyman vs. Harding, 162 111. 357. WORDS AND PHRASES 1367 This where interests are so identified that testimony of one could not affect person testifying without affecting the other. Thomas vs. Anthony, 261 111. L'S8. Competency of Husband : — Separate Property of Wife: The husband may testify in all cases where litigation concerns separate property of wife, unless wife is herself incompetent by reason of capacity in which opposite party sues or defends. Linkeraan vs. Kuepper, 226 111. 473; bmith vs. Long, 106 111. 485; Eads vs. Thomson, 109 111. 87; Ftmk vs. Eggleson, 92 111. 515; McNail vs. Zeigler, 68 111. 224; XIV 111. Notes, 1116, § 41. "Where litigation concerns separate property of wife, and action is one in which she would, if unmarried, be defendant, husband is competent to testify for or against her. Booker vs. Booker, 208 111. 529; Cassem vs. Huestis, 201 111. 208. In partition, husbands of co-tenants are competent. Grindle vs. Grindle, 240 111. 143. He is competent on behalf of wife in litigation concerning her sole and separate property. He is also competent in reference to trans- actions where he has acted as agent of wife. Pain vs. Farson, 179 111. 185. Competency is not affected by unnecessarily making him a party. Pain vs. Farson, 179 111. 185. In actions for slander brought by wife, husband is competent wit- ness for her. Hawver vs. Hawver, 78 111. 412. Husband is competent on behalf of wife as to her separate prop- erty in regard to transactions before marriage. Otis vs. Spencer, 102 111. 622. Where wife is incompetent to testify in her own behalf, husband is likewise incompetent to testify for her. Gillam vs. Wright, 246 111. 398; Heintz vs. Dennis, 216 111. 487 Mann vs. Forein, 166 111. 446; Shovers vs. Warrick, 152 111. 355 Shaw vs. Schoonover, 130 111. 448 ; Way vs. Harriman, 126 111. 132 Treleaven vs. Dixon, 119 111. 548. Criminal Actions: A wife is incompetent to testify for or against her husband m criminal case. ,, ^^., People vs. Duncan, 261 111. 339; Hoch vs. People, 219 111. 265; Hiler vs. People, 156 111. 511. May testify for joint defendant, if grounds of defense distinct from that of her husband. ^ _, ^^^ Gillespie vs. People, 176 111. 238; Creed vs. People, 81 111. 565. May testify against co-defendant, where nolle prosequi is entered as to the husband. Love vs. People, 160 111. 501. Or in corroboration of husband, where he has pleaded guilty. Graff vs. People, 208 111. 312. Husband is incompetent to testify for or against wife in criminal case. Miner vs. People, 58 111. 59. WORDS AND PHRASES. See Custom and Usage, Abbreviations, Expert and Opinion, Judicial Notice, Parol, Presumptions. 1368 WORDS AND PHRASES Presumptions : Technical words are presumed to be used technically, and words of definite legal meaning and signification are to be understood in that definite legal sense. Aetna Ins. Co. vs. Hoppin, 249 111. 406. Words in a contract will be presumed to have been used in sense in which they were used and understood by the courts of justice. DeClerque vs. Barber Paving Co., 1G7 lU. 215; Myers vs. Ruddy, 154 App. 438. Where local terms and phrases are used in a contract, presump- tion is that parties employed them according to their local signifi- cation. Myers vs. Walker, 24 111. 134. Parol Evidence: Where certain words used in a written instrument have acquired a particular meaning by local or trade usage, and such usage is shown to have been so general, uniform and frequent as to warrant the inference that parties had knowledge of and contracted with reference to the usage, it is competent to show that meanmg by parol. Chi. Portland Cement Co. vs. Ilof man, 168 App. 71 ; Packard vs. Van- Schoick, 58 111. 79; XII 111. Notes, 519, §§ 351 et seq. The meaning of terms of art and science, technical phrases, and words of local meaning, when employed in an agreement, may be proved by extrinsic evidence. Myers vs. Walker, 24 111. 134; A. T. & S. F. Ey. Co. vs. Goelz, 51 App. 151. When a word has a general w^ell defined signification, it is not competent to change that meaning by evidence. On the contrary, if a word is employed which has no definite and specific general mean- ing, its local meaning may be proved. Galena Ins. Co. vs. Kupfer, 28 111. 332; Western Ey. Co. vs. Mo. Mall. Iron Co., 91 App. 28; Lord vs. Owen, 35 App. 382; XI 111. Notes, 991, § 198. An experienced builder and contractor may testify as to the accepted meaning among builders of technical words used in a con- tract for erecting a building, but it is not permissible to prove by such witnesses the proper construction of the entire contract, aark vs. Shirk, 170 111. 143. If it is not certain from the face of a contract in w^hat sense terms were used by the parties, parol evidence is admissible to enable the court to determine in w^hat sense such terms were understood by them. Irvin vs. Powell, 188 111. 107; Dornfield vs. Volkman, 138 App. 421; Peabody vs. Dewey, 51 App. 260. Parol evidence is admissible to show that certain words and phrases used in a trade contract have a well known and established meaning among the merchants -and dealers engaged in the class of trade which is the subject matter of the contract. Steidtman vs. Lay Co., 234 111. 84. Where a particular word or phrase has a particular or technical meaning in a particular neighborhood, or at a particular period, and that word or phrase is used in an instrument made at that place or time, it is competent to show that meaning by parol. Broadwell vs. Broadwell, 6 111. 599; Barrett vs. Stowe, 15 111. 423; Ball vs. Benjamin, 56 111. 105. WORK AND SERVICES 1369 Parol is competent to show meaning of abbreviations in land descriptions. MeChesney vs. City of Chicago, 173 111. 75. In a suit against an express company, abbreviations in a receipt may be explained by parol. Amor. Express Co. vs. Lessem, 39 111. 313; Tailoring Co. vs. Adams Express Co., 158 App. 374. Expert evidence should not be received as to the meaning of a condition in a contract, to understand which no previous study or habit is necessary. Lord vs. Owen, 35 App. 382. The term "current funds" has a specific legal and well known meaning that cannot be contradicted or explained. Galena Ins. Co. vs. Kupfer, 28 111. 332; Marc vs. Kupfer, 34 111. 286. It is wholly unnecessary to call a workman in marble to prove the legal meaning of a contract "to erect a monument," or what would be understood by such a contract in the trade, because there could be no dispute as to its meaning. The law would attach to this language a precise signification. Sanford vs. Eawlings, 43 111. 92. Testimony of experienced railroad men is competent to explain and define terms used in his occupation, such not being opinion evidence. Garrity vs. Cath. Order of Foresters, 148 App. 189. WORK AND SERVICES. See Assumpsit, Attorneys, Physicians and Surgeons, Medical AND Surgical Services. PRESUMPTIONS AND BURDEN OF PROOF. Nature and Time of Employment: A general hiring is presumed to be at will. Davis vs. Fidelity Ins. Co., 208 111. 375; V(5gel vs. Pekoe, 157 111. 339; Orr vs. Ward," 73 111. 318 ; Brougham vs. Paul, 138 App. 455. But such presumption may be rebutted by admissions of parties. Doerr vs. Brune, 56 App. 657. An employment generally, fixing no term of service, which con- tinues for several years, will be treated as a hiring by the year. Miller vs. Ci'nnemon, 168 111. 447. Continuing to render labor and services in an employment, after the expiration of a definite term, raises presumption of a new hir- ing upon like terms. Glucose Sugar Co. vs. Flinn, 184 111. 123; Ingalls vs. Allen, 132 111. 170; Morgan vs. McCaslin, 114 App. 427; Moline Plow Works vs. Booth, 17 App. 574; XIII 111. Notes, 417, §16. The terms of a written contract for services will be presumed to continue from year to year so long as the employment lasts, until the contrary is shown. Hears vs. O'Donoghue, 58 App. 345. But if employe receives notice of a reduction of wages there- after to be paid, and continues in service without objection, pre- 1370 WORK AND SERVICES sumption will be that he consented to new terms and performed services thereunder. Crane Plow Works vs. Adams, 142 111. 125. But such presumption does not arise where after the termina- tion of the services under the contract, the employer requested the employe to do certain other work, at a different place, but at the same price, especially when request is made after considerable time had elapsed after completion of service under agreement. Ingalls vs. Allen, 132 111. 170. Proof that services were of a slightly different character or were performed at a different place is not sufficient to overcome the pre- sumption arising from a continuation in employment. Ingalls vs. Allen, 132 111. 170. No time being fixed, the presumption is that services were to be- gin at once or within a reasonable time after the execution of the contract. Barnard vs. Babbitt, 54 App. 62. Wlien the plaintiff declares generally for work and labor done, and materials furnished, and defendant files the general issue with notice that he will insist on the trial that the work done was per- formed under a written contract, the burden is not thrown on plaintiff to show an abandonment of the special contract, until de- fendant has proven the averment in his notice. Kobinson vs. Parish, 62 111. 130. As to Compensation: Where extra work and labor is performed or materials furnished of the same character as other portions agreed in special contract, it will be presumed that the additional work was to be paid for at the same rate, but not if work is of different character. Chicago & G. E. E. R. Co. vs. Vosburg, 45 111. 311. Party affirming that a certain compensation was agreed upon has burden of proving same. Howard vs. Goebel, 62 App. 497. Presumption is that services rendered by one admitted into the family were gratuitous. Heffron vs. Brown, 155 111. 322; Collar vs. Patterson, 137 111. 403. But this presumption may be overthrown and the reverse estab- lished by proof of an express or implied contract. Keyes vs. Thornton, 150 App. 523. On claim against estate for services rendered deceased in his life time, his declarations to the effect that he was not well treated by claimant, as well as his declarations, not in claimant's presence and hearing, as to money paid to latter, are incompetent. Neither is it competent to show that other relatives offered deceased a home with them. Avery vs. Moore, 34 App. 115. ADMISSIBILITY OF EVIDENCE. To Establish Express Contract: An express contract may be proven by facts and circumstances which show that both the parties, at the time the services were ren- dered, contemplated or intended pecuniary compensation other than such as naturally arises out of family relation. Brooks vs. Ostrander, 158 App. 78; McClory vs. Lancaster, 44 App. 212. WORK AND SERVICES 1371 An express contract may be proven not only by an actual a^ee- ment, by direct evidence, by the express words used by the parties, but also by circumstantial evidence. Heffron vs. Brown, 155 111. 322. May be established by admissions made to members of claimant's family. Vogel vs. Murphy, 182 App. 631. To Establish Implied Contract: An implied contract may be proven by circumstances showing that the parties intended to contract and the general course of dealing between them. Neish vs. Gannon, 198 111. 219; Sherman vs. Whitesides, 190 111. 576; Miller vs. Miller, 16 111. 295; Keyes vs. Thornton, 150 App. 523; XI 111. Notes, 1021, § 376. To Show Amount of Compensation: — The Contract: Plaintiff has same right to prove a special con- tract for services under the common counts as he has to rely upon an implied contract. Chi. E. & B. Co. vs. Johnson, 44 App. 224. And the measure of damages is fixed by the contract itself, and the party suing does not waive his rights to insist upon the con- tract as the measure of damages by introducing evidence in rebut- tal, tending to show what his services were reasonably worth. Sands vs. Potter, 59 App. 206; Affd. 165 111. 397._ While a contract continues executory, plaintiff must declare specially, but when it has been fully performed on his part and nothing remains to be done under it except for plaintiff to pay, plaintiff may declare generally in indehitatus assumpsit. Union. El. E. E. Co.. vs. Nixon, 199 111. 235; Sands vs. Potter, 165 111. 397; Gibson vs. O 'Gara Coal Co., 151 App. 424. And the contract and evidence of its performance is admissible in evidence under the common counts where it has been so fully executed that nothing remains to he done except to pay the amount due. Sands vs. Potter, 165 111. 397; Gibson vs. O'Gara Coal Co., 151 App. 424. On issue as to whether a contract for services was at a yearly salary or general, for what the same w^ere reasonably worth, proof of what the contract was at the beginning of the employment is competent. Mears vs. O'Donoghue, 58 App. 345. The burden of proving a special plea setting up a contract dif- ferent from that set up by plaintiffs is upon defendant. Osgood vs. Groseclose, 159 111. 511. Where labor is performed under a special contract fixing the amount of compensation therefor, the contract and it alone must control in fixing the amount of compensation to be paid. The com- pensation in such case forms a part of the agreement, and cannot be altered or varied by parol evidence showing that the work was worth less than was agreed to be paid for it. C. & G. E. E. E. Co. vs. A^osburg, 45 111. 311. Where one seeks to recover for work, w^hich he claims to have done without a special contract, if it appears that the work was begun under a contract in writing, which he says has been re- 1372 AVORK AND SERVICES scinded, he may be required to produce the contract in order that the court may see whether his claim is well founded. Cook County vs. Harms, 10 App. 24. Where services are rendered under a special contract as to price to be paid, the contract must control, and evidence of the reason- able value of such services is inadmissible. Peoples Adjustment Co. vs. Darrow, 172 111. 62. Value of Services: Inquiry under a quantum meruit is not what benefits immediate or remote have been derived from services rendered, but what is the value of such services. Eotlistein vs. Seigel, 102 App. 600. In action for wages, the value of the services of plaintiff to third parties is inadmissible. Connelly vs. Cover, 102 App. 426. Reasonable value is immaterial where there is an express con- tract fixing the value of the services. Wilson vs. Wilson, 125 App. 325. In action of assumpsit on common counts to recover commissions for securing options on coal lands, where plaintiff claims that he w^as to fix his own commissions, and also that defendant corpora- tion's president agreed to pay him five dollars per acre, but de- fendant claims the price agreed upon was fifty cents per acre, evi- dence as to value of land and also of reasonable value of plaintiff's services is admissible. Donk Bros. Coal Co. vs. Stroetter, 229 111. 134. In assumpsit for services rendered, evidence of value is admissi- ble where there is nothing to show there was any agreement to pay therefor a particular amount or at a particular rate. Heffron vs. Brown, 155 111. 322 ; XI 111. Notes 445, § 88. In action on alleged parol contract for services rendered in care of plaintiff's parents, where making of alleged contract is denied, and amount of compensation alleged to have been promised is claimed to be unreasonable and improbable, the party seeking to recover may prove her qualifications as a teacher of music, and the value of her services as such, not for purpose of recovery on quan- tum meruit, or for recovery of any more or less than alleged con- tract price, but for the purpose of answering the claim that the alleged contract was an unreasonable one, and therefore improb- able that it was entered into. Waldron vs. Alexander, 136 111. 550. Reasonable value of services may be proven though plaintiff sues on common counts, relying upon an executed special con- tract, where there is no dispute as to such services but the evidence as to the special contract is so irreconcilable as to warrant jury- in believing the minds of the parties had not met. People's Adjustment Co. vs. Darrow, 172 111. 62. — Opinion Evidence: The value of services, when sought to be proven by a witness other than plaintiff, should be shown by sub- mitting to such witness hypothetical questions based upon testi- mony given by other witnesses in the case. Snyder vs. Zeller, 113 App. 34. Unless such witness has personal knowledge of all the services rendered and their character. Walters vs. Mason, 159 App. 560. WORK AND SERVICES 1373 Witnesses who testify, the one that she had been a housekeeper for four years and knew the value of a housekeeper's services, and the other that she had been eleven years in the employment business and acquainted with the wages of housekeepers during that time, are competent to state their opinions as to value of services rendered as a housekeeper. Heffron vs. Brown, 155 111. 322. Witness may not state his opinion as to value of services without showing a sufficient knowledge to form an opinion. Oil Company vs. Boyer, 137 App. 518. Witness testifying as to probable cost of work may assume that contract would have been completed without accident and within the stipulated time. Hays vs. Wagner, 220 111. 256. In action to recover for work and labor, where plaintiff testified he was to receive for his services "the custom of the country," testimony by a witness who did not profess to have knowledge of services claimed to have been performed, the kind thereof, or the manner of performing, is inadmissible to show what the services were worth. Byrne vs. Byrne, 47 111. 507. — Compensation Paid Servants: In order to establish amount agreed to be paid for a particular service, it is not competent to permit evidence as to terms of settlement made by servant to a helper, Dixon vs. Million, 142 App. 559. — Compensation Paid Others: The reasonable value of services rendered and paid for is not established by inference or presump- tion from amount paid for such services. Hoover vs. B. & 0. S. W. E. K. Co., 158 App. 292 ; Sclimitt vs. Kur- rus, 234 111. 578. Price paid is admissible but slight evidence of value. Coffeen Coal Co. vs. Barry, 56 App. 587; Chi. City Ey. Co. vs. Menely, 79 App. 679. Nor is price paid another for same or similar services admissible on issue of reasonable value of services. Scott vs. Wright, 138 App. 105. Receipts taken by a party, in themselves, prove nothing, as they are neither evidence of the value of the work, nor where nor for whom performed. Grove vs. Miles, 58 111. 338. Evidence of charges is admissible without first showing same are customary and usual where there is no usual or customary charge in the locality for like services. Fleming vs. Chi. City Ey. Co., 163 App. 185; McCarthy vs. Spring Valley Coal Co., 149 App. 275. — Attorney's Fees: In fixing the amount of a reasonable fee, examination should be directed to what is customary for such legal services, where contracts have been made with persons competent to contract, and not what is reasonable, just and proper for the solicitor in the particular case. Metheny vs. Bohn, 164 111. 495; Zempner vs. Kozminski, 171 App. 570; XI 111. Notes, 495, § 134. Where to be allowed by court, it is not bound by testimony of 1374 WORK AND SERVICES attorneys at the bar, but can and should take into consideration his own knowledge of the value of such services. Gentleman vs. San. Dist., 260 111. 317. And evidence should be preserved in the record, otherwise decree cannot be supported. Methenv vs. Bolm, 164 111. 495. discharge' OF EMPLOYE. Admissibility of Evidence : Justification may be made without special plea, and is admissible under general issue. McCurdy vs. Alaska Com. Co., 102 App. 120; Hoffman vs. Worlds Col. Expos., 55 App. 290. Burden of showing good and sufficient cause for discharging servant rests upon employer relying on such defense, after servant has proven contract and full performance by him up to time of his discharge, and his willingness to perform. Ludwig vs. Boot Eng. Co., 148 App. 632; Campbell vs. Fierlein, 134 App. 207. In suit for breach of contract of hiring, the amount of damages is the contract price, and the burden of showing what plaintiff did or could have earned by reasonable diligence in other employment in case of his discharge before expiration of contract is on de- fendant. Kelly vs. L. & N. Ey. Co., 49 App. 304; Worlds Col. Exp. vs. Rich- ards, 57 App. 601. In action for breach of contract, master may show acts justifying discharge, though servant may not have been discharged for that reason. Orr vs. Ward, 73 111. 318. Master may show immoral conduct, and may testify as to infor- mation received as to same. Weaver vs. Halsey, 1 App. 558. Proof that servant habitually associated with disreputable people is competent in justification of his discharge. Gould vs. Magnolia Metal Co., 207 111. 172. That a deduction was made from wages of servant by reason of absences is not proof of sufftcient defense depriving master of right to discharge. Mandel Bros. vs. Hocquard, 99 App. 75. Where contract is proven, the wrongful discharge, what servant had been paid, his readiness and ability to work, and what he earned after his discharge, a prima facie case is made. Morris vs. Taliaferro, 75 App. 182. Where an employe is wrongfully discharged, he is not after- wards required to offer to work before he can recover for breach of the contract by reason of such wrongful discharge. Stumner vs. Wilson, 82 App. 384. Where no services have been performed under a contract of hiring, the employe may maintain action for breach of contract, the measure of damages being the wages agreed upon, less that sum earned or which could have been earned by him through the exer- cise of reasonable diligence in seeking other employment. Browns vs. Board of Education, 29 App. 572; Moline Plow Co. vs. Booth, 17 App. 574. In action for damages for wrongful discharge, burden is upon X-RAYS 1375 servant to show that he was engaged for a definite period and was discharged, without sufficient cause, before the end of it. Mandel Bros. vs. Hocquard, 99 App. 75. Letters written by plaintiff after he had been told not to come back to work until notified, which stated he did not consider him- self discharged, and asking for information on that point, are properly admitted in evidence in action for wages, where their effect is limited by instruction, to show notice to the employer that the employe did not understand he was discharged. Eeiter vs. Standard Scale Co., 237 111. 374. If the servant has not worked elsewhere, the employer may show that he could, by reasonable effort, have gained other employment, and may diminish the damages by whatever he can show plaintiff to have earned thereat. Doherty vs. Sehipper & Block Co., 157 App. 413. The burden of proving that other work was or could have been obtained is upon the employer. School Directors vs. Orr, 88 App. 648 ; Brown vs. Board of Education, 29 App. 572. Evidence of the net earnings of the servant during the unex- pired term is admissible under general issue, in action for damages. Fuller vs. Little, 69 111. 229 ; XIII 111. Notes, 420, § 52. The burden of proving a just excuse for abandoning employment is upon the servant. Griffin vs. Kelirer, 24 App. 243. An employe wrongfully discharged cannot hold himself in readiness to perform his contract for service and by successive suits upon the theory of constructive service recover the various installments of salary as they accrue according to the terms of the contract of employment. Such employe can have but a single action — and that for the damages occasioned by the wrongful dis- charge ; and a recovery in one action, upon whatever theory insti- tuted, is a bar to all subsequent actions. Doherty vs. Sehipper & Block Co., 157 App. 413. XRAYS. See Photographs. INDEX [references are to pages] ABANDONMENT Easement Burden of proof, 1 Direct evidence as to intention, 1 Of wife or children Husband to provide liome. 2 When not presumed, 2 Admissibility of evidence, 2 Weight and sufficiency of evidence, 2 Of street By citv, 1 Proof, 1 Of homestead, 617, 669 ABATEMENT Matters of record, 3 Not necessary to plead. 3 Jfotion to dismiss substituted for, 3 Other action pending, 4 When should be sho\\ n. 4 When plea not sustained, 4 Previous action on same claim, 4 Former action for different usee, 4 Suit pending in another state, 4 Order of proof and participation Default, 4 Pleading over, 4 Re -plea ding, 4 ABBREVIATIONS . Judicial notice, 5, 753 Initials, 5 Contractions, 5 Omitted names, 5 Official character, 5 Land descriptions, 5 Sex, 758 Parol evidence Written instruments, 5 Legal significance, 5 Technical use, 5 Ballot markings, 6 ABDUCTION Intent, 6 Gist of offense, 6 Presumptions and burden of proof Chastity, 6 Admissibility of evidence Declarations of abducted female, 6 Previous associations, 6 Inducements, 6 Consent of parents, 6 Consent of female, 6 1377 1378 INDEX [references are to pages] ABDUCTION (Continued) Weight and sulFiciency, 6 Enticing from lionie, G Illicit relations, 7 ' Chastity, 266 ■• Burden of proof, 217 ABILITY TO ACT, 290 ABODE Domicile, 451 Kesidence, 1141 ABORTION Admissibility of evidence Relation of accused and woman, 7 Other efforts and attempts, 7 Soliciting practice, 7 Expert and opinion, 8 Declarations, 8 Hotel register, 8 Presumptions and burden of proof, 8, 217 Criminal intent, 8 Jurisdiction, 8 Expert and opinion, 516 ABROAD Deposition taken abroad, 432 ABSENCE Death presumed from, 396 ABSENCE OF RECORD Certiticate of clerk, 257 Proof by witness, 257 ABSENT WITNESS I'resumptions Where witness has knowledge and is available, 9 Ex-employe, 9 Where witness incompetent, 9 Eye-witnesses, 9 Right to explain, 9 Former testimony, Right to introduce — Coroner's inquest, 9 Contradictory, 9 Witness out of jurisdiction. 9 Witness kept away by adverse party, 9 Proof by bill of exceptions, 10 Proof by person hearing former testimony, 10 Proof by stenograpliic notes or abstract of counsel, 10 Criminal action, 10 Impeachment after admitting affidavit for continuance, 84 ABSTRACTS OF TITLE Delined, 10 Admissibility Destroyed deeds, 10 Where no higher grade of evidence, 11 Accuracy, 11 Burnt records act, 11 Torrens land act, 11 Where destroyed court records restored, 12 To show conveyance, 12 Preliminary proof Necessity for, 12 Deed los't, 12 Registration of title, 12 Statutory requirement, 12 Sufficiency of, 12 Burnt records act. 12 INDEX 1379 [referexces are to pages] ABSTRACTS OF TITLE (Continued) Meanint^f of abbreviations, 12 ]Made in ordinary course of business, 12 Handwriting of abstractors, 12 Affidavits, i-4 Contents and sufficiency Acknowledpnient of deeds, 14 At time of transaction, 14 Entries from government — patents, 14 All facts of record impairing title, 14 Aider by affidavits Celibacy of grantor, 15 Identity of parties. 15 Information and belief, 15 Sworn or letter press copies Opportunity for verification. 15 Under burnt records act, 15 Uncertified copy of, 16 Entirety, 16 Whole of In ejectment, 16 Objections On application to register title, 16 Presumptions and burden of proof, 10, 217 Date of signing, 16 Deeds lost, 16 Statutory requirements, 16 Best and Secondary Evidence, 166 Date, .39,3 ABSURDITY Of line of conduct, 997 ABUTTING OWNERS Presumptions Partv wall, 1033 ACCEPTANCE See assent. 128 Voluntary convej'ances. 129 ACCESS Legitimacy. 778 To place of concealing stolen proiJerty As evidence of taking, 770 ACCESSORIES After the fact Proof of principal felony, 17 Concealing murder, 17 Indictment for larceny, 17 Indicted and tried with principal, 17 Before the fact Weight and sufficiency of evidence, 17 Words, acts, signs or motions, 17 Assenting by presence, 17 Principal guilty, 18 Conviction of principal, 18 Affirmative nature of action. 18 ACCIDENT No other accident Proof inadmissible, 18 Impossibility, 18 Conditions relating to At time of accident. 18 AVhere unchanged. 18 Prior condition, 18 Prior time, 18 Surrounding conditions. 19 1380 INDEX [keferexces are to pages] ACCIDENT (Continued) Export and opinion, 516 Judicial notice, 754 Presumption No presumption of negligence from accident, 1002 Repairs after accident, 1125 Pliotograpii of scene of. 981 Similar accident's, 1182 Insurance against, 972, 1274. ACCOMPLICE Defined, 19, 699 Competency Without entering nolle, 19 Corroboration Discretion of court, 19 When required, 19 Extent, 19 Acts and declarations Of one admissible against all, 19 Feigned complicity, 19 Cross examination Inducements or promises, 19 Expectation of leniency, 19 Weight and sufficiency Convictian without other evidence, 20 Where contradictory, 20 Prosecution for incest. 699 ACCORD AND SATISFACTION Proof of satisfaction, 20 Receipt obtained by false representation, 20 Must be full satisfaction, 20 Intent, 20 Acceptance of remittance, 20 Credit to debtor Rescission of contract of settlement, 20 Payment of a less sum Release not under seal, 20 Joint tort feasors Release to one. 21 Acceptance and retention of checks In full payment, — affirmative proof, 21 Good faitii, 21 Bona fide dispute, 21 Deceit by mistatement of facts, 21 Liquidated demand, 22 Agreement to take less, 22 Less sum secured for larger sum unsecured, 22 Admissibility under pleadings No7i est facium, 22 Nil debit, 22 General issue, 22 Burden of proof, 23, 218 On party alleging, 23 ACCOUNTANT Rook-keeper, 201 Conclusions of witnesses, 290 ACCOUNT BOOKS See books of account, 188 ACCOUNTS Settlement Presumption from giving note, 1008 Payment Parol proof. 1071 Limitations, 797 INDEX 1381 [REFERENCES ARE TO PAGES] ACCOUNT STATED Defined, 23 Admissibility of original character of debt, 24 Admissions, 24, 38 In pleading, 24 To strangers, 24 Book of entry, 24 Verbal admissions, 24 Presumptions Assent, — indorsement of 0. K., 24 Express promise not necessary, 24 Retention Avitliout objection, 24 Matters included, 25 Correctness, 26 Receipt of account, 26 Burden of proof, 26, 218 Settlement, 26 Fraud, 26 Question for jury, 26 Cross examination, 26 ACCUSED Credibility, 539 Immunity, 683 Injiocence Presumption, 1022 Failure to testify, 1114 ACKN WLEDGMENTS Necessity for Deeds, 26, 27 Contracts, 27 Certified copy of unacknowledged deed, 27 Ancient deeds, 27 Governor's deed, 27 Release of dower, 27 Authority of officer Notary public, 27 Justice of peace, 27 Clerk court of record, 27 Certificate of clerk showing party not officer, 27 Certificate showing authority, 27 Extrinsic competent to show, 28 Letters J. P., 28 Certificate Objection obviated by grantor's testimony, 28 Signature, — failure of officer to write, 28 Date, — M-ant of. 28 Scope and weight, 28 Prima facie evidence of execution, 28 Date of deed Presumption from, 29 Amendment and aid Executed in foreign state, 29 By officer, 29 * Impeachment Burden of proof, 29 Certificate, — by what judged, 29 Between parties, 30 Clear proof, 30 Disinterested witness, 30 Signature not in handwriting of grantor, 30 Parol evidence, — action of ejectment, 30 By wife, 31 Officer as witness, 31 Record of unacknowledged instrument, 1096 1382 INDEX [refeeences are to pages] ACKNOWLEDGMENTS (Contiimed) Testimony of grantor, 31 Conspiracy of grantee, 31 When certificate not overcome, 31, 32 Burden of proof, 218 ACQUAINTANCE Of witness Party at telephone, 1226 With handwriting, 604 With subject testified to as expert, 513 ACT OF LEGISLATURE See judicial notice, 746, 747 Legislative acts and journals, 776 Statutes, 1195 to 1197 ACTIONS Identity of judgment recited in bond, 682 Identity of second suit, 682 Identity of matter formerly adjudicated, 564 Of parties to former action, 565 ACTS AND DECLARATIONS Accomplice Of one admissible against all, 19 Feigned complicity, 19 To show fraud, 576 Intention of donor, 593 Of one in ])Ossession, 52, 905, 1240 ACTS OF OWNERSHIP Presumption from, 1241 ACTUAL WEALTH See pecuniary circumstances, 969 ADEMPTION Presumption, 1002 ADJOINING LAND OWNERS Presumptions Party wall. 1033 ADJOURNMENT OF COURT Parol proof, 1101 Regvilarity of jtulicial proceedings, 33 Presumption, 1002 ADJUDICATION See former adjudication, 563 Judgments, 738 Records, 1099 ADMINISTRATION Letters of Post evidence, 170 ADMINISTRATOR Representative capacity, 1132 As witness, 1346 ADMISSIBILITY OF EVIDENCE General rule, 33 By whom determined, 33 ADMISSIONS AND DECLARATIONS Account stated Correctness, 24 To strangers, 24 Book of entry, 24 Verbal, 24 In general, 34 No foundation nece'ssary where that of party to suit, 34, 688 Self serving statements, 37 Implied admissions, 37, 1292 Destruction and suppression of evidence, 37, 437 INDEX [references are to pages] ADMISSIONS AND DECLARATIONS (Continued) Tender, o7, 1239 Silence, 37, 1292 In presence of another, 38 Account stated, 38 Reports of employees, 38 Out of presence of adverse party, 38 Whole of utterance, 1293 Compromise and settlement, 284 Infants, 705 Weak minded persons, 40 Having conservator, 40 Parties to record, 40 In general, 40 Nominal party, 41 Parties in interest Joint obligors, 41 Community of interest, 42 Third parties, 41 In general, 41 Tenants in common, 39 Where community of interest, 42 Deceased persons In general, 42 Testator, 1299. 1307, 1318, 1328 Relating to title, 42, 1239 Gifts, 42 To impeach contracts. 43 To show suicide. 43, 400 To establish heirsliip, 43 To show assignment of note, 43 Marriage, 44 Counsel Right to make, 44 Right to withdraw, 44 To avoid continuance, 44 Made at former trial, 44 By silence, 44 Effect, 44 Officers, 45 Co-obligors, 45 Not against county, 45 After retiring from ofKce, 45 Partnership Existence of partnership in question, 45. 956 To show existence of partnership. 45, 956 After dissolution, 46 Admissions of dormant partner, 46 Relating to book entries, 46 As limited by scope of business, 4G Principal and agent, In general, 46 Relating to pending negotiations, 49 Fact of agency, 47, 87 Necessity of authority in agent. 47 To enlarge agent's authority. 47 To prove conversion by agent. 47 Relating to matters within scope of employment, 47 Agent's books as admissions against him, 50 As part of res gesfce, 50, 1140 When agent's declarations hearsay, 50 After termination of agencj% 49 Landlord and tenant, 50 Principal and surety, 50, 1045 1383 1384 INDEX [REFERENCES ARE TO PAGES] ADMISSIONS AND DECLARATIONS (Continued) Keluting tu negligence, 51, IKJo, 113'J, 1141 Master and Servant, 51, 1141 Grantor and grantee, 52 Impeachment of deed, 52, 1238 To sustain deed, 53 Disparagement of grantee's title, 53 Reformation of deed, 53 Made in absence of grantee, 53 Time of making. 54 Mental condition, 54 Declarations of grantor, 54 Undue influence or fraud, 54 In reference to boundary line, 54 Alleged fraudulent conveyance, 583 Vendor and purchaser, 54, 55, 50 Admissions of vendee, 54 Prior to sale, 54 Statements as to OAvnership, 55 Subsequent to sale. 55 Impeachment of vendee's title, 55 To construe contract, 55 Payment of purchase money, 56 Fraud, 56 To show price of goods, 56 Mortgagor and mortgagee. 56. 57 Contemporaneous with extcution, 56 Subsequent to execution, 56 As against person claiming through mortgagor, 56 As against subsequent incumbrancers, 56 To show acquiescence in sale, 57 Mortgagor's intention. 57 Attachment against mortgagor, 57 Matters affecting title. 57, 123S To overcome record title, 57 As proof of title, 57 To impeach title, 57 r>y party in possession, 58 To prove title in declarant, 53-58 To prove title in deceased person, 1240 To prove title in another, 58 To explain title, 58 In disparagement of title, real pro])erty, 58 In disparagement of title, personal property, 905 To show extent of possession, 58 To prove ownership of personal property, 58, 999 Privies, 59, 60 In estate, 59 In blood, 59 Administrator, 59 Assignor and assignee, 59, 131 Heirs, 00 Devisee's, 60, 1318 Parties to contract, 00 Corporations. 60 Corporate officers, 60 Directors and stock-holders, 01 Books of account, 195 Notes and bonds, 61, 184 In general, 61 As to time of apparent alteration, 61 Impeachment of assignment, 61 To show ownership, 61 INDEX 1385 [references are to pages] ADMISSIONS AND DECLARATIONS (Continued) Former owners, 131 Declarations relating to notes not in issue, 61 Matters concerning domicile, 61 In general, 61 Paupers, 61 Intent, 62 Insurance, 62 Books of society, 62 Declarations of insured, 62, 713, 717 Eeligious association, 62 Trusts, 62 Express trust in land, 62 Resulting trust, 63, 1256 Admissions of trustee, 63 Pleadings, 63, 64 Former pleadings, 63, 568 Equity competent at law, 63 Amended pleading, 63 Bill of particulars, 63 Demurrer, 63 Affidavit, 63 Pleading not filed, 63 Plea of 7wn est factum, 63 Bill and answer, 64, 113 Of co-defendant, 64 Withdrawal of plea, 64 Sworn answer to amended bill, 570 Stipulations, 570, 1204 Former testimony Although compulsory, 64 Depositions, 65 In another case, 65, 432 Right of court to compel, 65 To avoid incumbrance of record, 65 Estoppel, 65 In pais, 65 Recitals in agreements, 65 Inducement to action, 65 Weight and sufficiency, 66, 67, 68 Deceased person, 66 Occurring several years prior, 67 Full knowledge of rights, 67 ]\Iarriage contract, 68 Verbal, 68 Of accused in bigamy, 177 Of accused in liomicide, 639 Cloud on title, 274 As concerning limitations New promise, 799 Adverse possession, 1240 Former pleadings Common law, 568 Chancery, 569 Stipulations, 570 Answers, 113 Of maker of note Against surety, 610 Of insured Benefit society, 62, 713 Life, 717 Of officers of insurance company, 720 Admissions of devisee, 1318 Admissions of employees, 1134 1386 INDEX [references" are to pages] ADOPTION JUiidi'ii of proof, 69, 218 I'resuinptions, 6'.), 1003 Jurisdiction of court, 69 Record must show jurisdiction, 09 Admissibility of evidence, 69 Parol when, 69 ^Vhen jurisdiction cannot be attacked, 69 ADOPTION OF STATUTES Construction, 558 ADULT See age, 85 ADULTERY Definition, 69 Averment of marriage, 69 Proof of marriage, 69 Preponderance of evidence, 09 Circumstantial evidence, 69 Weight and sufficiency, 70 Presumptions, 71 Opinion evidence, 71, 516 Character and reputation of parties, 71 Chastity, 71 Alleged paramour, 71 Letters and correspondence as part of res gestae, 72 After filing bill, 72 Recrimination as defense, 73 Criminal conversation, 363 Statutory offense, 73 Bill for dower, 72 As bar to dower, 455 Burden of proof, 218 Weight and sufficiency of proof, 1290 ADVANCEMENTS Delined. 73 How established, 73 Must be in writing, 73 Deed, not indicating on face, 73 Consideration of love and affection, 73 Account book, 73 Lost instrument evidencing, 74 Quit claim deed to ancestor, 74 Note paid by parent, 74 Destruction of evidence, 74 Intent of donor, 74 Declarations of donor, 75 Parol, 75, 930 Presumptions, 75 Value, 76 Repayment, 76 Gifts^ 592 Husband and wife, 75 Parent and child, 75, 76 Trusts, 1254, 1255 ADVERSE PARTY Right to call, 76 Effect of calling or naming as nominal party, 76, 1347 Effect of disclaimer of interest, 77 Contradiction and impeachment, 77, 686 Witnesses, 1340. etc. ADVERSE POSSESSION Presumptions, 77 Essential elements, 78 In general, 78 Possession, 78 Payment of taxes, 7r INDEX 1387 [references are to pages] ADVERSE POSSESSION (Continued) Admissibility of evidence, 79 Weight and sufficiency, 71) Questions of law and fact, 80 Burden of proof, 218 Ejectment, 478 Possession, 997 Title, 1241 Trespass, 1346 ADVERSE WITNESS See bias and hostility, 173 Credibility. 354 ADVERTISEMENT Bucket shops, 214 False pretenses, 540 Lottery, 811 Rewards, 1148 Warranty, 1284 ADVICE OF COUNSEL See attorneys, 142 Malicious prosecution, 820, 821 Privileged communications, 1047 to 1051 Trespass, 1245 AFFECTION AND PERSUASION As undue influence, 1316 AFFIDAVITS Abstracts of title, 14 Where deeds lost, 14 Celibacy, 15 Identity of parties, 15 Information and belief, 15 Defined, 80 Form, 81 In general, 81 Jurat, 81 Amendment, 81 Ex parte affidavits, 81 Presumptions, 81 Judicial notice, 82 Particular affidavits, 82, 83 Voters. 82 Attachment bond. 82 Change of venue, 82 Of merits. 82 For introduction of copies, 82, 158 In aid of plea, 83 In replevin As eyidence of value, 1131 Counter affidavits Default. 412 Judgments by confession, 741 New trial. 866 AFFIDAVITS FOR CONTINUANCE Admissibility of affidavits, 83, 84 In general, 83 As an admission. 83 Under different form of action, 83 Whole of, 83 Containing statements of opinion, 83 Judicial admission, 84 EfTect of admitting, 84 Civil actions, 84 Criminal action, 84 Impeachment of absent witness, 84 1388 INDEX [referekces are to pages] AFFIRMANCE AND AVOIDANCE OF CONTRACTS By infants, 704 Katitication in general, 10G4 AFFIRMATIVE Burden of proof, 84 In general, 84 Determined by pleading. 85 Weight, 85 AFTER THE FACT Accessories Concealing murder, 17 Indictment for larceny, 17 Indicted and tried with principal, 17 AGE Admissibility of evidence, 85, 86 Family record, 85 School record, 85 Declarations of deceased persons, 86 Confession, 86 Competency of witnesses, 86 Opinions of witnesses, 86 Inspection by jury, 86 Burden of proof, 218 Conclusions of witnesses, 288 Expert and opinion, 516 As aflfoctins' contributory negligence, 701 AGED WITNESS, 772 AGENCY Admissions and declarations Necessity of authority in agent, 47 To enlarge agent's authority. 47 To prove conversion by agent, 47 Eelating to matters within scope of employment, 47 After termination of agency, 49 Relating to pending negotiations, 4 9 Agent's books as admissions against him, 50 As part of res (lestae, 50, 114U When agent's declarations hearsay, 50 Fact of agency Admissions of agent, 47. 87, 88 Admissions of principal, 88 Circumstantial evidence, 88 Color of agency must be known, 88 Order of proof, 86 Authority, 86 Knowledge of party, 86 Presumptions, 87 Corporate agents, 87 Continuance of relation. 87 Burden of proof, 87, 218 Admissibility of evidence, 87, 88, 89 Declarations and acts of agent, 87 Admissions of principal, 88 Circumstantial, 88 Prior course of dealing, 89 Parol, 89 Conclusions of witnesses as to, 287 Husband and wife Presumptions and burden of proof. 655 Competency of wife as witness, 661 AGREEMENT To pav for services, 130 Parol," 913 To extend contract sued upon, 137 INDEX 1389 [references are to pages] AGREEMENT (Continued) I'ni'xi'cutecl, 917 Alterations in 93, 1003 AGRICULTURE Expert and opinion, 516 Judicial notice Crops, 756 AIDING AND ABETTING Accessories Before the fact, 18 ALCOHOL See, imst, liquors ALIAS Passing under, 550 ALIBI Defined, 90 Burden of proof, 90, 219 Degree of proof, 90 Weight and sufficiency, 90 Exact time, 90 Presumptions, 90 Legitimate defense, 91 Rebuttal, 91 Hotel register, 91 Impeachment, 91 ALIENATION OF AFFECTIONS Right of action, 91 Matters to be proved, 91 Presumptions, 92 Conversations, 93 Character, 92 Damages, 92 Gist of action, 92 Mitigation, 92 Divorce decree, 92 Abduction, 266 ALLEGATIONS AND PROOFS Must agree, 92 No allegation. 93 Matters not denied. 93 ALLEYS AND SIDEWALKS Judicial notice, 744 ALMANACS See judicial notice. 754, 760 ALTERATIONS AND ERASURES Question of law and fact. 93 Admissibility of instruments, 93 Presumptions, 94, 1003 Fact of alteration, 94 As to validity of instrument, 95 Time of alteration, 95 Burden of proof, 95, 219 In general, 95 Notes, 96 Admissibility of evidence to show or explain alteration, 96, 97 Parol evidence, 96 Opinion evidence, 96 Comparison of instruments, 96 Copies, 96 Affidavit, 96 Pleading, 97 Witnesses, 97 Authority to make, 97 ALTERNATIVE QUESTION When leading, 772 1390 INDEX [references ARE" to PAGES] AMBIGUITY Admissibility of parol evidence, 97 to 103 Contracts, 97 Contracts for conveyance, 436, 678, 679 Deeds, 100 to 102 Wills, 102, 1297 Letters, 785 Burden of proof, 219 AMENDMENT Affidavits, 81 Public record By clerk, municipal corporation, 1083, 1085, 1088 Officer's return, 1173, 1176 AMENDMENT AND AID Acknowledgment foreign state Proof of foreign law, 29 AMOUNT OF EVIDENCE Wlicre crime charged in civil case, 1290 ANCESTOR Admissions of Pedigree, 973 Value, 1264 Title, 1239 In'sanity of, 1157, 1158 ANCIENT DOCUMENTS Definition, 103 Proof of execution. 103 Burden of proof, 103 Necessity of showing, 103 Acknowledgment, 104 Subscribing witness, 104 Power of attorney, 104 Delivery, 104 Presumption, 104 Extrinsic in aid, 104 Foundation for admission, 105 How laid, 105 ANCILLARY USE OF EVIDENCE, 417, 441 ANIMALS Injuries by animals, 105 Domestic animals, 105 Wild animals, 105 Vicious animals, 106 Defenses, 107 Similar conduct of, 1185 Animals injured or killed, 108 Dogs, 108 Fowls, 108 Race horses, 108 Diseases of animals, 109 Burden of proof as to knowledge of character of, 219 Expert and opinion, 516 Habits of animals Malicious mischief, 603 Judicial notice, 754 Bloodhounds Tracking by, 627 ANIMUS See credibility, 354 Motives Witness. 861 Bias and hostility, 173 ANIMUS REVOCANDI Wills, 1328 ■ ANNUITY TABLES, 796 INDEX 1391 [references are to pages] ANSWER Answers iindpr oath In general, 110 Dismissal of bill, 111 Two defendants, 111 Information and belief. 111 Matters not responsive. 111 Matters in evidence, 111 Spirit of charge. 111 Bills for divorce, 113 Oath waived, 112 Unsworn ansAvers, 112 As evidence. 112 Admissible as admission. 6-1, 112 Conclusiveness, 112 Impeachment of defendant, 112 Hearing on bill and answer. 113 Fact admitted by answer, 113 Exceptions, 113 Admissibility of answer of one defendant, 113 Admissibility as admission, 570 In garnishment, 592 ANTECEDENTS (loss examination as to, 371 ANTE LITEM MOTAM, 973 ANTE NUPTIAL CONTRACT Presumptions and burden of proof. 113, 219 Knowledge of extent of husband's property, 113 Admissibility of evidence, 114 Competency of witnesses, 114 As bar to dower, 455 ANTI SALOON TERRITORY Admissibility of evidence. 114 Records of election creating, 114 Government license, 115 Former prosecutions, 116 Good faith, 116 Weight and sufhciencv, 116 APPARENT DANGER As defense, homicide, 649 APARTMENT HOUSES Judicial notice, 754 APPEAL BONDS Pleading, 117 Of the declaration, 117 Set off, 117 Nul tiel record, 117 Non est factum, 117 Non dam)iificatus. 117 Admissibility of evidence, 117 Prosecution with effect. 119 Issuance of execution. 119 Cost and damages, 119 When lease competent. 119 Costs and damages, 120 Correctness of fee bill, 120 The bond. 117 Mistake in name of party. 118 True intent, 118 " • Defense in original action, 118 Judgment and decree. 119 Certified transcript, 119 APPEARANCE See age, 86. 516 1392 INDEX [references are to pages] APPEARANCE (ContiniUMl) Attorneys, 143 Expert and opinion, 516 Judgments, 738 Photographs, 984, 985 APPLIANCES J)i'nion'strative, 416 Experiments, 506 APPOINTMENT OF CONSERVATOR As concerning testamentary capacity, 1309 APPRENTICES Consent of parties, 120 Parol competent in action for services, 120 Enticing apprentice, 120 Measure of damages, 120 ARBITRATION AND AWARD Admissibility of evidence by arbitrators, 120 Admissibility of submission and award, 121 Presumptions and burden of proof, 121 Matters submitted, 121 Ratification by partner, 121 Impeachment in equity, 121 In general, 121 Admissibility of parol evidence, 121 Arbitrators as witnesses, 122 ARCHITECT'S CERTIFICATE iSoe building contracts, 214 Assumpsit, 131 Parol, 930 ARGUMENT OF COUNSEL Attorney's opening statement, 148 Reading books, 188 Failure of witness to testify, 1114 Recalling witness after, 891 ARREST Illegal Effect extradition proceedings, 535 By private persons False imprisonment. 536 Justification, 536, 537 General issue, 537 Intent and malice, 537 INIanner of treatment, 537 Responsible parties, 537 Cross examination as to, error, 699 Resisting, 1147 ARSON Corpus delicti, 122 Threats, 123 Of accused, 123 Of third persons, 123 To defraud insurer, 123 Intent, 123 Insurer, 123 Policy, 123 ARTICLES IN EVIDENCE, 417, 638 ASSAULT AND BATTERY Burden of proof, 123, 220 Intent, 123 Self defense, 123 lender pleadings, 124 Admissibility of evidence, 124 In general, 124 Under particular pleadings, 124 INDEX 1393 [references are to pages] ASSAULT AND BATTERY (Continued) Threats, 125 Character of party, 126 As to damages, 126 Weight and sufficiency, 127 Abduction, 266 Pecuniary circumstances of parties, 969 ASSENT Contract of carrier Shipper's assent, 128 Carrier's assent, 129 Contract of telegraph company, 129 Conveyances, 129 Voluntary settlements, 129, 912 Work and services, 130 General rule, 130 Physician, 130 Burden of proof. 220 ASSESSOR'S SCHEDULES Parol, 930 As evidence of value. 722, 1264 Eminent Domain, 492 ASSIGNMENT Presumptions, 130 Negotiable instruments, 130 Admissibility of evidence. 131 Opinion of witness, 131 Admissions, 131 Ante-nuptial contract, 220 Parol Negotiable instruments, 930 Judgment, 930 Corporate stock, 931 ASSIGNMENT OF NOTE Admissions and declarations Deceased persons, 43 Of prior holder, 131 ASSIGNOR Admissions of, 131 ASSUMPSIT Common counts, 131 In general, 131 Indebitatus assumpsit, 132 Money had and received, 132 Goods sold and delivered, 132 Work and services. 132 Special contract, 133 Building contracts, 134 Abandoned contract, 134 Obligation by statute, 134 Policy of insurance, 134 Breach of contract, 134 Breach of warranty, 134 Pay in articles of personal property, 134 Promissory note, 135 Partnership account, 135 Rent, 135 Moneycoimts, 857 General issue Matters provable generally, 135 Abandonment of contract, 136 Payment. 136 Unlawful contract, 136 Recoupment and set-off, 136 Custom and usage, 137 1394 INDEX [keferences are to pages] ASSUMPSIT (Continued) Y^aXTAa QWA I'lTmature iU'tion, Ki? Faihuc and want of consideration, 137 Bankruptcy, 138 Statute of frauds, 138 Ultra vires, 138 Breacli of warranty, 138 Contracts of guaranty, 139 Tender, 139 Fraud and circumvention, 139 Insurance contracts, 139 Burden of jiroof, 220 ASSUMPTION OF FACTS Cross examination, 3G7 Hypothetic^,! questions, 637 ATHEIST Sec witnesses, 1339 ATTACHMENT Burden of proof, 140, 231 Admissibility of evidence, 140 In genera], 140 Possession, 140 Affidavit not evidence of indebtedness, 140 Acts of ownership, 140 Creditor at time of transfer, 140 Creditor impeaching deed, 141 Admissions and declarations, 57 Against mortgagor, 57 ATTACHMENT BOND Amdavits, 83 ATTESTATION Acknowledgments, 26 Wills, Defined, 1234 ATTESTING WITNESS Privileged communications, Attorney as, 1049 Wills, 1333 ATTORNEYS Judicial notice, 142 Privileged communications, 1047 Advice as defenses Malicious prosecution, 830 Trespass, 1245 As witnesses, 143 Competency, 142 Nominal withdrawal, 142 Attorney's minutes, 142 Authority, 143 Presumption, 143 Inquiry as to, 376 Fees and services, 143 Right to practice, 143 Retainer defined. 143 Charged on firm books, 144 When services need not be proven, 144 No special contract, 144 Injunction, 146 Negligence, 147 Presumption. 147 Dealings with clients. 147 Presumptions. 147 Burden of proof, 231 Proving former testimony of absent witness by. 572 Stipulations, 44, 1204 INDEX 1395 [references are to pages] ATTORNEY'S OPENING STATEMENT ..-lurT, ^,^ „.; Adniissihilitv of I'vidonce to ilis|)iovp, 148 AUTHENTICATION Books of account, 190 .3 Foreign laws, 560 Copies, 328 Certificates, 256 Records. 1107 Handwriting, 602 Judgments sister state, 556 Judgments foreign countries, 557 AUTHENTICATION OF RECORD Not controlled by common law, 1107 Act of congress not exclusive, HOT AUTHORITY Burden of proof, 221 Of counsel Wlien may not be enquired, 370 AUTOMOBILES Expert and opinion, 517 Speed, 1194 Warranty, 1281 AWARD Burden of proof, 222 Arbitration and award, 120 B BAD CHARACTER See character, 263 Credibility, 358 Impeachment, 695 to 698 BAD FAITH See good faith, 595 Color of title, 479 Knowledge of adverse claim, 1241 BAD REPUTATION Of engine, 765 Of employe, 600 BAGGAGE Loss of, by innkeeper, 706 BAIL See bonds, 184 to 186 ' it. Recognizance, 1077 to 1080 BAILMENT Breach of contract Presumptions and burden of proof, 149 Demand and refusal, 149 Question for jury, 149 Burden of i)roof, 222 BALANCES OF ACCOUNT, 189 BALLOTS Abbreviations, 6 Admissibility Contested elections, 319 IM BANK CHECKS Presumptions, 1007 See post. Checks BANKRUPTCY ^ Burden of proof, 222 See fraudulent conveyances, 582 Must be pleaded," 138 Insolvency, 709, 710 1396 INDEX [references are to pages] BANK OFFICER As expert as to handwriting. 605 As expert as to genuineness of money, 768 BANKS AND BANKING Burden of proof. 222 Books of account, 195 Custom and usage, 384 I'resumptions, 1006 See post, Che'cks BASTARDY Proeoedings in general, 150 Civil, 150 Who may maintain, 150 Non-resident, 150 Unmarried woman, 150 Admissibility of evidence, 151 Depositions, 151 Offers of compromise, 151 Complaint, 151 Child. 151 Naming child, 151 Poverty of mother, 151 General reputation. 151 Admissions of defendant, 151 Admissions of prosecuting witness, 151 Conception and gestation, 152 Date, 152 Inquiry in general, 152 Cross examination, 153 Corroboration. 154 Opinion and expert, 154 Weight and sufficiency. 154 Burden of proof, 154 Mother unmarried woman, 154 Degree of proof. 154 Credibility of witnesses, 154 Settlement, 155 Impeachment of receipt, 155 Burden of proof, 222 Abduction, 266 BATTERY See assault and battery, 123 BEASTS See animals. 105 BED AND CLOTHING EXHIBITED, 417 BEER, 116 BEFORE THE FACT Accessories, 17 Weight and sufficiency of evidence, 17 W^ords. acts, signs or motions, 17 Assenting by presence, 17 Principal guilty, 18 Conviction as principal, 18 Affirmative nature of action, 18 BEHAVIOR Of witness, 357 BELIEF Insane delusion, 1306 BELIEF AND INFORMATION False imprisonment, 539 Malicious prosecution, 814, 815 BELLS Ringing of Positive and negative, 994 INDEX 1397 [references are to pages] BEQUESTS Soo wills. 1297 BENEFICIARIES !See insurance, 711 Wills, 1297 Witnesses, 1359 BENEFIT ASSOCIATIONS See insurance, 711 to 717 BEST AND SECONDARY In general Necessity of production. 156 Existence of writing. 156 Document beyond jurisdiction, 156 Voluminous documents, 156 Written instruments in general, 157 Wrongful withholding or destruction of evidence, 157 Lost or destroyed writing. 158 Party destroying evidence cannot ofl'er, 439 Preliminary proof. Discretion of court, 158 Affidavits. 158 Showing purpose for which evidence offered, 159 Notice to produce, 159 Loss of original, 162 Due search, 163 Examination of witnesses, 165 Degrees of secondary evidence, 165 Private writing Newspapers, 166 Abstracts of title, 166 Letters and letter press copies, 166 Sale of mortgaged property, 167 Memorandum, 167 Telegram. 167 Deeds, 167 Record of unacknowledged instrument. 168 Private books, 168 Contracts, 168 Articles of partnership, 168 Architect's certificate, 168 Duplicates and copies, 168 Notes, 169 Receipts, 169 Mortgage, 169 Wills. 169 Official writings Required to be in writing, 169 Not required to be in writing, 169 Particular records, 169 Court records, 170 Corporate records, 171 Objections, waiver and consideration, 172 Contested elections, 320 Corporations. 346 BIAS AND HOSTILITY In general. 173 Admissibility, 173 Cross examination, 173 Details, 173 Direct evidence. 175 Cross examination of hostile witness, 175 Hostility of dving declarant, 175 BIBLE, 85 BIGAMY In general, 175 1398 IND^X [references are to pages] BIGAMY (Continued) xVttual marriage, 175 Lawful spouse living, 176 Question of law and fact, 176 Validity of marriage, 276 Capacity of accused to contiact. 176 Presumption as to compliance witli law, 177 Record evidence, 177 Ecclesiastical ceremony, 177 Admissions of accused, 177 Opinion evidence, 177 Certificate of oflicer officiating, 177 Board of health record of marriage, 177 Dissolution of former marriage, 178 Burden of proof, 178 Degree of proof, 178 Intent, 178 Competency of second wife, 178 BILL AND ANSWER IN CHANCERY Admission's and declarations, 6o, 113 Date of filing bill, 393 BILLS OF DISCOVERY See discovery, 444 BILL OF EXCEPTIONS Absent witness Former testimony, 10, 179 Admissibility to show former testimony, 179 Party to suit, 179 Deceased witness, 179 Absent witness, 10, 179 Efi'ect of admitting by consent, 179 BILL OF LADING Presiunptions, 179 Condition of goods, 179 Ownership, 179 Contract of carriage, 179 Admissibility of evidence, 180 Contradiction by carrier, 180 To prove verbal consent. 180 Forwarding line, 180 Parol, 931 BILL OF PARTICULARS Admissions and declarations, 63 Where bill withdraMn on second trial, 63 Civil actions, 180 Purpose, 180 Right to, 181 Requisites and sufficiency, 181 Scope and efiect, 181 Amendment, 182 Reading to jury, 182 Admissibility, 182 Criminal trials, 182 Right to, 182 Scope and effect, 183 Reading to jury, 183 BILLS OF SALE Parol, 931 Warranty, 1285 BILLS AND NOTES See post negotiable instruments BIRTH Registers of births, deaths and marriages, 1116 Pedigree, 972 Of child, as evidence of rape, 1059 INDEX 1399 [referexces are to pages] BLANK CONTRACT ' •• -v.^. Admissible to idcntiry parlies, G7G As evidence tif eoiitract, U17 BLOOD HOUNDS, 627 BLUE PRINT, 442 BOARD OF HEALTH RECORD, 177 BODILY FEELINGS See mental and phj'sical states. 844 BOMB Demonstrating, 418 Throwing, 310 BONDS Burden of proof, 184 Parol, 931, 932 Admissibility of evidence Official capacity, 184 Validity, 184 Recitals, 184 Admissions, 184, 1045 Certified copy. 185 Approval of bond, 185 Pleadings in former suit, 185 Books and records, 185 Official orders, 185 Judgments, 186 Weight and suffieien'cy of evidence Bond for payment of money, 186 Penal bond, 186 Bond for deed, 186 Attachment bond, 186 See ante. Appeal Bonds BOOK ACCOUNT See account stated, 23 ' Books of account. 188 Of stranoers, not admissible as corroborative evidence, 42 BOOKKEEPER As expert To show result of calculation. 201 Improper method of book-keeping, 201 ~[ BOOKS On mechanics, 187 ■^<^rr Medical books, 187 Reading from, 187 Experts, 187 Law books. 187 Criminal action. 187 Civil action, 187 Scientific books, 187 Attached to deposition, 843 BOOKS OF ACCOUNT r. Defined In general, 188 Cash book. 189 Ledger, 189 Agent's record of business. 189 Engine inspection book, 189 Order book of merchant, 189 Pass book of merchant, 189 Memoranda, 1S9 Only book, 189 Necessity of production, 189 Admissibility, 189 In general, 189 1400 INDEX [references are to pages] BOOKS OF ACCOUNT (Continued) J'roliminary proof, 190 Copies, 190 Books transcribed from memoranda, 192 Books compiled from time cards, 193 Entries made by third parties, 193 Entries not relating to business conducted, 193 As part of res gesim, 193, 1136 To explain payment of note, 194 To show failure of payment, 195 Corporate books. 195 Partnership books, 195 Building and loan association books, 105 Bank books, 195 Effect of dilapidation, 197 As part of cross examination, 197 Effect of admission, 197 BOOKS OF ENTRY Account stated, 24 BOUNDARIES Presumptions, 201 Admissibility of evidence, 202 Extrinsic to identify monument, 202 Declarations and statements, 202 C4eneral reputation, 203 Plats, 203 Weight and sufficiency Surveyor's monuments, 203 Acquiescence, 203 Of parol agreement, 203 Estoppel, 204 Statutes defining Judicial notice, 741 BRANDS See ownership, 903, 904 Trade marks. 1242 BREACH OF COVENANT Burden of proof. 223 BREACH OF PEACE See assault and battery, 123 BREACH OF PROMISE Contract of marriage, 204 Burden of proof, 204 May be inferred, 204 Letters admissible to show contract, 204 Hearsay incompetent, 205 Engaged to another, 205 Express contract, 205 Breach" of contract, 205 Request and refusal, 205 Defenses, 205 Married plaintiff, 205 Infancy, 205 Lewd conduct of plaintiff, 205 Immoral consideration. 205 Sentiments of plaintiff, 205 Damages Exemplary, 207 Pecuniary circumstances, 207 Expense of preparation, 208 Seduction, 208 Venereal disease, 208 Money value of home, 208 INDEX 1401 [references are to pages] BREACH OF PROMISE ((\intinu(>(l) Defaiiiatioii of eluuacter, 208 Mitigation, 208 Burden of proof, 223 Abduction, 266 BRIBERY Defined, 209 Admissibility of evidence, 209 Cancelled checks as corroboration, 209 Jurisdiction of court, 209 Animus, 209 Weight and sufficiency, 209 BROKERS Actions for commissions, 210 Valid contracts of sale, 210 Procuring cause, 211 When contract and sale not essential, 212 License, 212 BUCKET SHOP Presumptions, 213 Weight and sufficiency No intention to deliver, 213 Intention of keeper, 213 No inquiry of customer. 213 Circulars as to requirements, 214 Signing by customer. 214 Corporate stocks, 214 Intention, 214 Expert and opinion. .'jlR BUGGY INTRODUCED IN EVIDENCE, 417 BUILDING CONTRACTS Admissibility in evidence, 214 Under pleading, 214 Weight and sufficiency of evidence, 215, Parol, 932 BUILDINGS Burden of proof, 214 Removal as constituting waste, 1287 BULLET, 417 BURDEN OF PROOF Defined, 503, 215 Account stated Settlement, 26 Fraud, 26 Adoption. 69 Agency, 87 Bigamy, 178 General rules, 215 As determined by pleadings, 216 Affirmative. 216 As to shifting of burden, 216 Negative in issue, 216, 861 Where license required, 217, 861 Abandonment, 217 Abduction, 217 Abortion. 217 Abstracts of title, 217 Acceptance, 218 Accident, 218 Accord and satisfaction, 218 Account stated, 218 Acknowledgment, 218 Adoption, 218 Adultery, 218 1402 INDEX [keferences are to pages] BURDEN OF PROOF (Continued) AdviTso possession, 218 Age, 218 Rape without forte, 218, 1062 Rape with force, 218 Agency, 218 Alibi, 219 Alterations, 219 Ambiguity, 219 Knowledge of character of animals, 219 Ante nuptial contract, 219 Assault and battery, 220 Assent, 220 Contract of carrier, 220 Restrictive conditions, 220 Assignment, 220 Assumpsit, 220 Attachment, 221 Plea in abatement, 221 Ownership, 221 Fraudulent, 221 Attorneys, 221 Authority, 221 In general, 221 Of law, 221 Agent, 221 Corporate officer, 221 Partner, 221 Stranger, 222 Award, 222 Banks, 222 State of account, 222 Payment of check, 222 Bankruptcy, 222 Bad faith, 222 Negotiable instruments, 222 Color of title, 222 Bailment, 222 Bastardy, 222 Bonds, 222 Breach of promise. 223 Breach of covenant, 223 Breach of promise, 113 Breach of contract, 223 Brokers, 223 . Buildings, 223 Cancellation of instruments. 223 General rule, 223 Fraud and undue inlluence, 223 Insanity, 223 Chastity, 224 Citizenship, 224. 272 Cloud on title. 224 Competency of witnesses. 225 Compromise and settlement. 225 Computation, 225 Confession and avoidance, 225 Confusion of goods, 225, 302 Consideration, 225 Instruments under seal, 225 Release, 225 Illegal, 225 IXJJEX 1403 [references are to TACiES] BURDEN OF PROOF (Contiimed) I'loiiiis.sory note, 2:JG Partial 226 Conspiracy, 226 Contempt", 226 Contested elections, 226, .T16 Contracts, 226 Terms and conditions, 226 Construction. 226 Illegal consideration, 226 Of sale, 226 Different contract, 226 Conveyances, 227 Fraud, 227 ^^oliintarv conveyances, 227 Cliild to parent. "227 Parent to child. 227 Corporations, 227, 349 Plea of mil iid corporation, 227 Execution of mortgage, 227 Absence of corporate antliorization, 349 Absence of authority of oilicer, 349 Corporate existence. 349 Legal corporation, 349 Ultra vires. 349 Credit. 227 Creditor's bill, 228 Death, 228 Debt, 228 Dedication, 228 Default. 228 Deed, 228 As mortgage. 228 Bill to set aside, 228 Duress, 228 Insanity and undne infhience. 228 Delivery on condition, 228 Proof of conditions. 416 Lost deeds, 228 Denial of execution, 228 Descent and distribution. 229 Existence of heirs, 229 Intestacy. 229 Will established. 229 Descent of realty, 229 Desertion, 229 Discount, 229 Divorce, 229 Domicile, 229 Dower, 229 Due care. 230 Duress. 230 Ejectment. 230. 472 In general. 472 Immediate possession. 472 Existence of ]>ropert3-, 472 Identity of property, 472 Compliance with statute, 472 Embezzlement. 230 Eminent domain, 230. 498 Pight to condemn. 230 Value, 230 1404 INDEX [references are to pages] BURDEN OF PROOF (Continued) Title, 230 Damages, 230 Estoppel, 230 Exemption, 230 Experiments, 231 False imprisonment, 231 Fellow servant, 231 Fiduciary relation, 231 Fires, 231 Fire arms, 544 Forfeiture, 231 Fraud, 232 Fraud and deceit, 232 Gifts, 232 Gambling contracts, 232 Garnishment, 232 Guardian and ward, 232 Guaranty, 232 Highways, 232 Prescription, 232 Abandonment, 232 Dedication, 232 Existence, 232 Obstructing, 232 Homestead, 233 In general, 233 Assertion of lien, 233 Abandonment, 233 Husband and wife, 233 Agency of wife, 233 Agency of husband, 233 Identity, 233 Property sold by description, 233 Stock of goods, "233 Larceny, 234 Persons, 234 Infancy, 234 Civil actions, 234 Criminal, 234 Innkeeper, 234 Insanity, 234 Civil action, 234 Criminal action, 234 Lucid interval, 234 Restoration, 234 Will proponents, 234 Insolvency, 235 Insurance, 235 Benefit society, 235 Death, 235 Assessment, 235 Notice, 235 Amendment, 235 Violation of law, 235 Forfeiture, 236 Accident company, 236 Fire insurance, 236 Identity of property, 236 Intestacy, 236 Interest, 236 Usury, 236 Payment to extend note, 236 INDEX 1405 [references are to pages] BURDEN OF PROOF (Continued) Joint liability, 23fi Partnership, 236 On note, 237 Impeachment of judgment, 237 Jurisdiction, 237 Knowledge, 237 Contents of writing, 237 Of defect, 237 Of danger, 237 Larceny, 238 Lease, 238 Legislative acts and journals, 238 Legitimacy, 238 Libel and slander, 238 Criminal responsibility, 238 Civil action, 238 License, 238 Limitations, 238 Life tables, 238 Malicious prosecution, 239 Want of probable cause, 239 Malice, 239 Malpractice, 239 Mandamus, 239 Manslaughter, 239 Marriage, 239 Master and servant, 239 Negligence, 239 Promise to repair, 239 Medical and surgical services, 239 Action by physician. 239 Contract of corporation. 240 Recovery as damages, 240 Mental state, 240 Money paid. 240 Money had and received, 240 Negative in issue, 240 Negligence, 240 Negotiable instruments, 241 Notaries public, 241 Notice of injury, 241 Novation, 241 Officers, 242 Existence of office, 242 Duty, 242 False return, 242 Ordinances, 242 Existence of, 242 Continuance in force. 242 Unreasonableness, 242 Ownership, 242 Personal property, 242 Streets and alleys, 242 Notes, 242 Insurance, 242 Partnership, 242 Existence, 242 Secret, 242 Payment, 243 Penalties, 243 Physicians and surgeons, in actions for malpractice. 243 Plat correct, 243 1106 INDEX [references are to pages] BURDEN OF PROOF (Continiiod) vtArrrT I'ossosssioii, 2415 Bill to icmovo cloud, 243 Burglary and larceny, 243 Forcible entry and detainer, 243 Principal and agent, 243 I'rincipal and surety. 244 Promise to repair, 244 Quo warranto, 244 Receipt, 244 Receiving stolen property, 244 Larceny, 244 Guilty knowledge, 244 Identity of property, 244 Rescission, 244 Recognizance, 245 Recoupment, 245 Reformation of instruments, 245 Refusal to produce evidence, 245 Release, 245 Replevin, 245 Replevin bond, 246 Replication. 246 Residence, 246 Resisting arrest, 246 Resulting trust, 246 Reward, 246 Sales, 246 Identity, 246 Compliance with order, 246 Under trust deed, 246 School teacher, 247 Right to teach, 247 Seduction, 247 Cround for discharge of servant, 247 Set-off. 247 Settlement, 247 Signature, 247 Specific performance, 247 Suicide, 247 Benefit society, 247 Accident company, 247 Survivorship, 247 Taxes, 247 Validity, 248 Exemption, 248 Payment, 248 Tax deed. 248 Tender, 248 Timber. 248 Title, 248 Trade marks, 249 Trespass, 249 Trover, 249 Trust, 249 Trust funds. 249 Undue influence, Wills, 249 Deeds, 249 Usury, 249 Vagabond. 249 Value, 249 Vendor's lien, 249 INDEX 1407 [references are to pages] BURDEN OF PROOF (Contiiuicd) W'luie, 24y \'oluiitary conveyance, 250 Waiver of terms of contract, 250 Warranty, 250 i Water and watercourses, 250 Boundary, 250 Navioability, 250 Water late, 250 Wills, 250 Testamentary capacity, 250 Undue influence, 251 Witnesses, 251 Disqualifying interest, 251 Written statements to impeach, 251 Work and services, 251 On plea of nil debit, 400 On one asserting deed absolute on face, to be a mortgage, 411 BURGLAR'S TOOLS, 253, 417 BURGLARY Euildinc-, 252 Hotel, 252 Stable. 252 Dwelling, 252 ■' ^ - Engine room, 252 Ownership, 252 Possession, 252 '^-' "* By partnership, 253 • Corporations, 252 Intent, 252 Intoxication, 252 Consent of owner, 252 Identification of burglar, 253 Possession of stolen property. 253 Disposition of stolen goods. 253 Burglar's tools. 253, 417 Keys, 253 Experiments, 253 Time of entry, 253 .:ii.J Conduct and false statements, 254 BURNING Arson. 122 Fires, 544 BURNT RECORDS Abstracts of title Where proper affidavit filed, 11 Sworn or letter press copies, 15 Sworn answer in burnt records proceeding, 110 Eecords, 1080 BUSINESS See admissions and declarations, 34 Abstracts made in due course, 13 TA'> Agency, 89 Gambling contracts, 587 Account stated, 23 Books of account, 188 Custom and usage, 382 Judicial notice, 754 Tifft r/esfrr. 1132 BUSINESS EXPERIENCE As showing knowledge of instrument signed, 372 On question of duress, 462 BUSINESS IMPROVEMENTS Judicial notice. 744 1408 INDEX [references are to pages] BY-LAWS Corporations, 338 Insurance, 714, 715 Prosumptions, 1023 BY-STANDER See declarations as part of res gestce, 643, 1141 CALCULATION Conclusions of witnesses, 290 Burden of proof, 225 Best and secondary, 167 CALENDAR Judicial notice, 754 CANADA THISTLES Admissibility of evidence, 254 CANCELLATION OF INSTRUMENTS Burden of proof General, 255 Fraud and undue influence, 255 Insanity, 255 Parol evidence, 255 Weight and sufficiency, 255 Fraud, 255 Delay, 256 CANCELLED CLAUSES IN WILL, 1299 CANCELLED CHECKS, 209 CAPACITY Conclfisions of witnesses. 291 Experiments, 507, 508, 509 Expert and opinion, 517 Infants, 700, 701 Wills, 1305 to 1316 Of woman to bear children, 616, 1020 CAPACITY IN WHICH PERSONS ACT Written contracts, 929 CARBON COPY, 192 CARE Burden of proof, 230 Expert and opinion, 522 Habits, 599 to 602 Presumption, 1017 Conclusions of witnesses, 287 Insurance, 718 CARNAL KNOWLEDGE See Adultery, 69 Criminal conversation, 363 Incest, 699 Rape, 1156 Seduction, 1165 CARRIERS Assent, 128 Bailment, 148 Bill of lading, 179 Burden of proof, 220, 224 Experiments, 506 Customs and usage, 388, 398 Judicial notice, 759 i?es gesUe, 1132 to. 1141 Presumptions, 1006 CASH BOOK As evidence, 189 INDEX 1409 [references are to PACiES] CATALOG Wanaiitv, 1284 CAUSE Deatli, 399, 400 Expert ami opinion, 518 to 521 Experiments, 500 Insurance, 712, TKJ, 718, 719 Nuisance, 869 to 872 Presumptions, 1014 Similar facts, 1182 to 1184, 1187 Suicide. 12i:i, 1214 CAUSE AND RESULTS Cross examination, 371, 373 CAUSE OF INJURY Statements and declarations, 844 CELIBACY Abstracts of title Ailidavits. 15 CELEBRATION OF MARRIAGE, 829 CEMENT .hulicial notice of composition, 755 CENSUS Judicial notice, 755 CEREMONY Marriage As proof of, 829 CERTIFICATE OF ACKNOWLEDGMENT Presumptions of authority from, 27, 28 Signature, omission, 28 Seal, omissions, 28 Scope and woiglit, 28 CERTIFICATE OF DEPOSIT Parol, 932 CERTIFICATE OF NATURALIZATION, 272 CERTIFICATE OF PUBLICATION, 932, 1175, 1176 CERTIFICATE OF SALE Parol, 932 CERTIFICATE OF TAXES, 932 CERTIFICATE OF TEACHER, 932 CERTIFICATES Admissibility Non-existence of record, 256 Certificate of probate judge, 257 Municipal clerk, 257 Clerk of foreign district court. 257 Clerk of county and circuit courts, 257 Comptroller of currency. 258 Comptroller of city. 258 Register of land office, 258 Clerk of supreme court, 258 Secretary of state, 258 Election canvassers, 259 Auditor's certificate. 259 Surveyor's certificate, 259 Weight and siifficiency Certificate of acknowledgment, 259 Mine engineer, 259 Presumptions. 259 Amendment, 260 Of officers in proof of records In general, 1098 Clerk of county court and countv clerk, 1085 Of city, 1088 1410 INDEX [references are to pages] CERTIFICATES (Continued) Private corporations, 1092 Records of federal government, 1094 Recorder, 1096 Judicial records. 1107 to 1110 CERTIFICATES OF EVIDENCE Admissibility, 260 Former adjudication To show issues, 565 Proof of former testimony by, 573 CERTIFIED COPIES See copies, 328 Records, 1094, 1095, 1098 Public records, 1098 CERTIORARI Admissibility of evidence Before writ issued, 260 After writ issued, 260 Return of writ, 260 CESTUI QUE TRUST Admissions of, 1256 Admissions of trustee as against, 63 CHAIN SIMILE, 626, 1066 CHANCERY Burden of proof, 261 When upon defendant, 261 No replication, 261 Issues and proof, 261 Of the bill, 261 Unverified answer, 262 Sworn answer, 262 Admissibility of answer of one defendant, 262 Bill as an admission, 569 CHANGE Presumptions against, 1008 CHANGE OF VENUE Affidavit, 82 CHARACTER Civil actions In general, 263 Criminal actions In general, 263 General reputation, 264 Relevant traits, 264 Particular acts, 264 Time, 264 Number of witnesses, 264 Weight, 264 Character of witnesses, 265 To repel presumption of fraud. 577 Issue of insanity, 645 Of impeaching witness. 699 Impeachment by proving reputation bad, 695 Alienating affections, 92 Bastardy, 151 Breach of promise, 208 Criminal conversation, 364 False imprisonment, 536, 539 Homicide Accused 631 Deceased, 633 Impeachment by reputation, 695 Libel and slander, 794 INDEX 1411 [refekences are to pages] CHARACTER (Continued) Malicious prosecution, 814 Rape Cliastity of prosecutrix, 1058 Cimstity of defendant, 1058 Seduction, 1166 On issue of testamentary capacity, 1310 CHARTER Judicial notice, 743 Corporations, 344, 350 CHARTS See diagrams, 441 Plats, 992 Surveys, field notes and monuments, 1214 CHASTITY Presumption, 6 Burden of proof, 224 Abduction, 6, 266 Presumption and burden of proof, 6. 266 Declarations of abducted female, 266 Previous associations, 266 Alienation of afTections. 266 Assault and batterj^ 266 Bastardy, 266 Breach of promise, 266 Knowledge of defendant, 266 Mitigation of damages, 267 Criminal conversation, 267 Admissibility of evidence, 267 Homicide, 267 Rape, 268 Character of prosecutrix, 268 Character of defendant, 268 Seduction Competent, 268 Time, 268 Embezzlement, 268 Cliastity of prosecutrix, 268 Credibility of witnesses, 268 CHATTEL MORTGAGE Parol, 932 Identity of property, 932 Conditional delivery, 932 Presumptions, 1007 Admissions and declarations Contemporaneous with execution, 56 Subsequent to execution, 56 As against person claiming through mortgagor, 56 As against subsequent incumbrancers, 56 Of assignor, against interest, 59 CHATTELS Declarations of former owner, 905 Declarations of party in possession, 999 CHEAT See conspiracy, 306 False pretenses, 540 Fraud. 574 CHECKS Accord and satisfaction Acceptance in full payment, 21 Without funds, false pretenses, 540 As corroborative evidence, 590 Presumptions, 1007 1412 INDEX [references are to pages] CHECKS (Continued) As to compromise and settlement, 281 From giving check, 1007 Custom of depositors to check, 754 Secondary evidence as to contents, 803, 804 Tender by, 1228 Stubs, not part of res gestcc, 1136 Caneelk^d checks, 209 CHEMIST AS EXPERT, 534 CHICAGO CITY DIRECTORY Judicial notice, 755 CHICAGO CITY RAILWAY COMPANY Judicial notice, 744 CHICAGO RIVER Judicial notice, 741, 761, 1288 CHILD See age, 85 Bastardy Naming cliild, 151 Introducing in evidence, 151 Full period of gestation, 154 Guardian and ward, 598 Infants, 700 Intelligence, opinion as to, 524 Legitimacy, 777 Parent and child. 907 Opinion as to paternity, 529 Presumptions, 1022 Giild bearing, presumption, 1020 Birth of as evidence of rape, 1059 Witnesses, 1339 CHOSES IN ACTION Declarations of former owner, 131 CHRISTIAN NAMES Judicial notice, 673 Presumptions. 674 CHRISTIAN SCIENCE Belief in as aft'ecting testamentary capacity, 1314 CHURCH DOCTRINE Preacher departing from, 521 CHURCH REGISTERS, 1090 CHURCH SOCIETIES Judicial notice, 755 CIGARETTES Judicial notice, 755 CIRCUIT JUDGES Presumption, 1007 CIRCULARS Bucket shop transactions, 214 Fraud and deceit, 579 Warrantv. 1284 CIRCUMSTANTIAL EVIDENCE Defined, 269 Legal evidence, 269 Kinds, 270 Inferences and presumptions, 270 Value, 270 CITIES See corporations, 338 Jiulicial notice, 743 to 745 Ordinances, 892 Sidewalks, 1179 Records, 1087 IXDKX 1413 [referexcbs are to pages] CITIZENS iSoo citizenship, 272 Contested elections, 3] 6 Domicile, 451 CITIZENSHIP Burden of proof, 224, 272 Presumptions, 272 Certificate of naturalization, 272 TJecords of naturalization, 272 CITY DIRECTORY Admissibility, 273 Chicago citj^ directory Judicial notice, 755 CITY RECORDS, 1087, 1097 J CIVIL ACTION Presumption of innocence, 1022 3 Presumption of knowledge of law, 1025 Criminal charge in, 1290 CIVIL SERVICE RULES, 332 Loi .aoiJj,. CLAIMS AGAINST ESTATES Presumptions, 909 Express contracts, 910 Implied contracts, 910 Habits as to payment of money, fiOl Pecuniary circumstances, 971 Declarations of deceased as to payment and treatment, 1370 Admissions of deceased to establish contract, 1371 Witnesses, competency Personal representatives, 1346 Widow, 1352 Heirs at law, 1352 Claimant. 1352 CLAIMS ALLOWED Presumptions, 1007 CLERK Books of account, 191 Of attorney Privileged communications, 1047 CLERK'S CERTIFICATE Date, 392 See certificates, 256 CLIMATE Judicial notice, 760 CLOTHING See demonstrative evidence, 273 CLOUD ON TITLE Burden of proof, 225, 278 Defined, 273 Necessity of proving title, 274 Color of" title, 274 Ownership and possession, 275 Vacancy of property, 277 Admissions, 277 Presumptions as to title, 277 Admissibility of quit claim deed, 278 Admissibility of foreign deed, 278 Weiglit and sufficiencv, 278 -^- COAL MINE Opening, — not waste, 1287 C. 0. D. Judicial notice, 279 Admissibilitv of evidence, 279 Parol. 279 Un INDEX [REFERENCES ARE TO PAGES] CO-DEFENDANT See accessories, 17 Accomplices, 19 Homicide, 640 Confessions, 296 Corroborations, 352 Credibility, 358 Destruction of evidence by, 438 Right to cross examine, 366 Witnesses, 1346 Admissions in answer of, 64 Admissions in conspiracy, 308 Answers of, 113 CODICIL Sec wills. 1297, 1333 CO-HABITATION See adultery, 69 Bigamy, 175 Criminal conversation, 362 . Divorce, 446 Marriage, 827 COLLATERAL ATTACK Foreign judgments. 554 Service in general, 1173 Records Judgments in general, 1103 COLLATERAL FACTS Account books not evidence of, 198 To show good faith, 1187 Fraud, 1184 No previous accidents, 18 Repairs after accident, 1125 Similar facts and transactions, 1182 Separate and similar offenses, 1168 COLLATERAL KIN Insanitv of. 1158 COLLATERAL MATTERS When answer of witness conclusive, 174 COLLEGE STUDENT, 1038, 322 COLLUSION See conspiracy, 306 Fraud, 574 COLOR OF TITLE Cloud on title, 274 Defined, 279 Tax deeds, 280, 1216 Admissibilitv to show, 280 COMMERCIAL AGENCY Statements to as proof of fraud, 577 COMMISSIONS Broker Presumptions, 1008 COMMON CARRIER Judicial notice, 755 COMMON COUNTS Assumpsit, 131 COMMON DISASTER Survivorship. 1216 COMMON KNOWLEDGE Judicial notice, 755 COMMON LAW Presumptions, 1008 INDEX 1415 [references are to pages] COMMON LAW (Continued) Presumption as to existence, 558 ■ Indicia! notice. 748 COMMUNICATIONS See privileged communications. 280 By telephone as evidence, 122G By telegraph, 1224 COMPARISON OF HANDWRITING See handwriting. 602 COMPARISON OF INSTRUMENTS Alterations. 96 Forgery, 562 Records, 1098 Ordinances. 896 COMPETENCY OF EVIDENCE For one purpose, 280 As to one party. 280 COMPETENCY OF WITNESSES See witnesses, 1336 COMPLAINT Of prosecutrix, 1057 Confidence game, 299 To show fraud. 577 COMPOSITION WITH CREDITORS See compromise and settlement. 281 COMPROMISE AND SETTLEMENT Presumptions Receipts, 281 Checks, 281 Complete settlement, 283 Burden of proof, 282 In general, 282 By surety, 283 Subject matters. 283 Promissory notes, 283, 1008 Agreement. 283 Prior action, 283 Offers of compromise Competency, 284 As consideration of doubtful claim, 284 COMPTROLLER OF CITY, 258 COMPTROLLER OF CURRENCY, 258 COMPULSORY EXAMINATION See physical examination, 985 COMPUTATION Burden of proof, 225 Expert and opinion, 290 Attorneys, 1048 CONCEPTION AND GESTATION Bastardy. 152 CONCLUSIONS See conclusions of witnesses, 285 Legal conclusions. 775 Expert and opinion. 518 CONCLUSIONS OF WITNESSES In general, 285 Due care. 285 Defect, 285 Agency, 287 Temperature, 285 As to admissions or conversations of another, 287 Existence of road, 288 Existence of street, 288 Age, 288 Cruelty, 288 1416 INDEX [references are to pages] CONCLUSIONS OF WITNESSES (Continued) WAT Insolvency, 288 Relating to personal injuries generally 288 Existence of oral contract, 288 Authority, 288 As to misrepresentations, 289 As to employment, 289 Indebtedness", 290 Fright of animals, 290 Result of calculation, 290 Value of time, 290 Profits, 290 Possession, 290 Sewerage conditions, 290 Consent to terms of contract, 290 Use of partnership funds, 290 Ability to act, 290 Condition of goods, 291 Pain and suffering, 291 Vision, 291 Hearing. 291 CONCLUSIVE EVIDENCE See former adjudication, 503 Former judgment. 738 to 740 CONCRETE Judicial notice, 755 CONDEMNATION PROCEEDINGS See eminent domain. 4S:; CONDITION OF MERCHANDISE Kxpert tcstifvino- as to, 521 CONDITIONAL ADMISSION OF EVIDENCE, 889 CONDONATION Defined, 450 Presumptions, 450 Specific acts, 450 Knowledge, 450 Subsequent conduct, 450 Cohabitation, 450 CONDUCT Absurdity of, 997 Destruction, suppression and fabrication of evidence, 437 Of prosecutrix in action for rape, 1059 Estoppel by conduct. 65 Admissions may be implied from Silence, 1214 Flight or alias, 550 Resisting arrest, 1147 Attempted suicide, 1291 Refusal to produce evidence. 1113 Of Avitness on trial, to show interest. 357, 358 Opinion as to, 521 Surprise, 765 Of passengers, 1139 CONDUCTOR ^ Admissions as res qcstcr, 1141 CONFEDERATES S(>e cons])iracv. 308 CONFESSION AND AVOIDANCE Burden of proof, 225 CONFESSIONS Definitions In general, 292 Implied, 292 Admissibility General' rule, 292 INDEX 1417 [references are to pages] CONFESSIONS (Continued) Wlion accusation denied, 1292 Province of court, 293 Copies. 293 In foreign lanp^uage, 293 Made to detectives, 293 Voluntary confession, 294 ^Yhole must be given, 294 Confession of facts, 294 When obtained by deceit, 294 When obtained by personal violence, 294 Coroner's inquest, 295 Before grand jury, 295 Admissions not amounting to confession, 296 Silence when accused. 1292 As to joint defendants, 296 Weight and sufficiency In general. 297 Partially discredited confession, 297 Uncorroborated confession. 297 To sustain conviction. 297 Verbal admissions, 297 Extra-judicial, 298 Implied confessions, 298 To establish corpus delicti, 298 Confessions of third persons, 298 CONFIDENCE GAME Pleading Indictment, 299 Bills of particulars, 299 Variance, 299 Admissibility of evidence Similar oflfenses, 299 Uncompleted attempt. 299 Former complaints, 299 Reliance upon statements. 300 Fictitious letters and telegrams, 300 Opinion. 300 Contract legally binding, 300 Weight and sufficiency Sale of stock, 301 CONFIDENTIAL COMMUNICATIONS See attorneys, 142 Privileged eomiiiuiiications, 1047 CONFIDENTIAL RELATION See Hduciarv relations, 542 CONFUSION OF GOODS Burden of proof, 302 t - Presumptions IMinn^ling bv consent 302 conjectures' and IMPRESSIONS ^^'itnl■ss cannot testify as to. 511 That witness "took" from what partv said ''SS CONNECTION BETWEEN FACTS OFFERED AND FACTS TO BE PROVEN Dffer of evidence, 884 Order of proof, 889 CONSENT See assent, 128 Of parents Abduction, 6 Of female, 6 CONSENT OF PARTIES Apprentices. 120 1418 INDEX [references are to pares] CONSEQUENCES OF ACTS PRESUMED INTENDED, 621 CONSIDERATION Love and afl'ection, 73 Recital of in deed is hearsay, 411 Inadequacy of As proof of fraud, 577 Fraudulent conveyance, 587 Burden of proof, 225 When instrument under seal, 225 Release, 225 Illegal, 225 Promissory note, 226 Partial, 226 Different consideration. 226 Presumptions and burden of proof, 302 Sealed instrument, 302 Contract of sale, 303 Parol evidence, 303 Want of consideration, 303 Marriage, 305 Deeds as evidence, 306 Action on contract, 306 Failure and want of Pleading, 137 Resulting trusts, 1253 CONSPIRACY Burden of proof. 226 Nature and elements of crime, 306 In general, 306 The agreement, 306 Gist of the offense, 306 Admissibility of evidence In general, 307 Overt acts, 307 Documentary, 307 To show motive. 308 Other offenses. 308 Acts and declarations, 308 Weight and sufficiency of evidence, 310 Degree and burden of proof, 311 Pleading and proof, 311 Indictment, 311 Bill of particulars, 312 CONSTABLE \'ali(lity of process. 1120 CONSTRUCTION OF STATUTES Adopted statutes. 1197 CONSTRUCTION OF WILLS, 1297 to 1305 CONTEMPTS Burden of proof, 226 Defined In general, 312 Civil, 312 Criminal. 313 Jurisdiction, 313 Indictable offense, 313 Jury trial, 313 Immunity, 313 Intention, 314 Fact of contempt-pleadings, 314 Bill of particulars, 314 Special interrogatories, 314 INDEX 1419 [references are to pages] CONTEMPTS (Continued) Criminal, 314 Constructive, 314 Civil, 315 iSworn answer, 315 Burden of proof, 315 Admissibility of evidence, 315 Degree of proof Civil, 316 Criminal, 316 CONTEMPORANEOUS ORAL AGREEMENT Nut i)rovable by parol, 917 CONTENTS Presumption as to knowledge, 764 CONTENTS AND SUFFICIENCY See abstracts of title, 14 CONTESTED ELECTIONS Presumptions Notice of election, 316 Right of person to vote, 316 For whom vote cast, 316 Proclamation of results, 316 Burden of proof In general, 226 Illegality of votes, 226, 316 Condition of ballots. 226, 317 Preservation of ballots. 317 Questions of law and fact, 317 Admissibility of evidence In general, 317 Circumstantial evidence, 317 As to how ballot was marked, 318 Voters affidavits, 318 Declarations of voter, 318 To inspect ballot, 318 Ballots, 318 To show voters not legal voters, 319 Missing ballots, 319 To show voter's age, 319 Certificate of election, 320 Weight and sufficiency of evidence Judge's return, 320 Buying votes, 320 Best and secondary, 320 Residence of voter, 320 In general, 320 Defined, 320 Permanent abode, 321 Intention, 321 Time, 321 Sleeping and eating. 321 College students, 322 Previous voting in same district, 322 Voting in another precinct, 322 Continuance, 322 School district plat, 322 Abandonment. 322 Temporary residence, 322 Temporary absence, 322 Pauper, 323 Witnesses, 323 Determination of competency, 323 Privilege of voter, 323 1420 ^^I^EX [references are to pages] fj rp achment bv inoving, 687 CONTRIBUTORY NEGLIGENCE Admissions and declarations relating to, 51 Infants presumed incapable of, 701 CONVERSATIONS Admissions and declarations, 33 Telephone, 1226 CONVERSION See trover and conversion, 1248 INDEX 1421 [references are to pages] CONVEYANCES Assent Voluntary settlements, 129 Burden of proof Fraud, 227 Voluntary conveyances, 227 Child to parent, 227 Parent to child, 227 Presumptions, 1011 Acknowledgments, 26 Deeds, 409 Delivery, 413 Consideration, 302 CONVICTION See former conviction, 566 CO-OBLIGORS Admissions Officers, 45 Principal and surety, 50 Privies, 59 COPIES Abstracts of title, 15, 16 Carbon copy, 192 Private writings Admissibility, 328 Contracts, 328 Contract in law report, 168 Letters, 329 Telegrams, 329 Letter press copies, 329 Corporate records, 329 Power of attorney, 329 Lease and mortgage, 329 Public writings Land ofhce entries, 330 Land patents, 330 Ordinances, 330 Bond registers, 331 Records of county clerk and recorder, 331 Internal revenue collector, 332 Civil service commission, 332 Court records, 333 Cause pending, 333 Public officials, 333 Judgments, 333 Naturalization proceedings, 334 Depositions, 334 Ship enrollment. 334 Appointment of administrator, 334 L^nacknowledged instruments, 334 No seal, 334 Surveys, 334 Compared "copies, 562, 896, 1098 Proof of correctness, — what sufficient, 562 Foreign judgments, 557 See Records. 1080 CORONER'S INQUEST Admissibility of verdict in subsequent proceedings In general, 334. 400 Actions for negligence, 336 Actions on insurance policy, 336 Bill to contest will. 336 Admissible in entirety, 336 1422 INDEX [REFERKNCES ARE TO PAGES] CORONER'S INQUEST (Continued) Name and seal of coroner, 336 Proceedings in sister state, 336 Weight and ell'ect of verdict, 336 Admissibility of depositions In general, 337 The affidavit, 337 Stenographic notes, 337 Parol evidence, 337 Admissions of accused, 337 Immunity, 685 CORPORATE OFFICERS Admissions and declarations, 60 CORPORATE RECORDS Best and secondary evidence, 171, 340 In general, 1091 CORPORATE STOCK Presumption from possession. 903 Names of holders on stock books, 906 Presumption as to regularity of issue, 1011 Market price, 825 CORPORATIONS Admissions and declarations Corporate officers, 60 Directors and stockholders, 61 Admissibility of evidence Articles of incorporation, 338 Articles of consolidation, 338 Bill of sale, 338 Certificate of comptroller of currency, 338 Contracts, 338 Deeds, 339 Execution of bonds, 339 Judicial decrees against corporations, 339 Leases, 339 Letters, 339 Opinion evidence, 340 Parol evidence, 340 Parol as to existence of corporation in criminal action, 343 Corporate records and books, 340. 1091 Weight and sufficiency of evidence On plea of mil tiel corporation, 342 To establish corporate existence, 342 Acceptance of special act, 344 Corporate obligations, 345 Ratification of acts of officers, 345 Residence, 345 Best and secondary evidence 346 Presumptions, 346 Issue of stock, 346 Ownership of stock, 346 Execution of mortgages, 346 Execution of contracts, 346 Authority of officers and agents, 347 Seals, 347 Subscriptions, 348 Receipt of notice of directors' meeting, 348 Authorization of acts of officers, 348 Existence of corporation, 348 Burden of proof Absence of corporate authoiization, 349 Absence of authority of officer, 349 Corporate existence, 349 INDEX 1423 [references are to pages] CORPORATIONS (Continuod) Legal corporation, 349 Ultra vires, 349 Plea of vul ticl corporation, 227 Execution of mortgage, 227 Estoppel, 349 Competency of stock-holders and officers as witnesses, 359, 1347 Judicial notice, 350, 214 Coriiorate signature, 250 CORPUS DELICTI Defined, 350 Particular offenses, 350 Degree of proof, 351 Admissibility of evidence, 351 Circumstantial evidence, 351 Confessions, 351 CORRECTION OF DEPOSITION, 435 CORRESPONDENCE Letters, 779 Wliole of utterance, 1296 CORROBORATION Accomplice, 19, 352 Discretion of court, 19 AVlien required, 19 Extent, 19 Extra judicial confessions, 352 In general, 352 Corpus delicti, 353 Acts and declarations, 353 Former declarations, 353 Competent by prosecutrix, 353 CORROBORATIVE TESTIMONY, 356 CO-SURETY As to transactions with deceased, 1350 Admissions, 41 COUNSEL See attorneys, 142 Malicious prosecution, 821 Privileged communications, 280 Trespass, 1246 Admissions and declarations Right to make, 44 Right to withdraw, 44 To avoid continuance, 44 Made at former trial, 44 By silence, 44 Effect, 44 Stipulations, 1204 COUNTER AFFIDAVITS New trial, 866 Judgments by confession, 741 Default, 412 COUNTER CLAIM, 1176 COUNTER PART OF DOCUMENT, 165 COUNTY JUDGES Presumption, 1012 Judicial notice, 750 COUNTY SEAT Judicial notice. 742 COURSE OF DEALING Admissibility as to gambling contracts, 587 Agency, 89 [KEi^ERENCES ARE TO PAGES] COURTS Officers Judicial notice, 743, 749 Rules of court, 1153 Records Judicial notice, 751 Judicial, 1099 Adjournment Roo-ularity of judicial proceedings, 33 COURT ORDERS AND ACTIONS Judicial notice, 752, 753 COURT RECORDS Best and secondary evidence, 170, 1099 COURT ROOM Exclusion of Avitnesses, 504 COVERTURE See husband and wife, 654 Marriaoe, 827 CREDIBLE WITNESS Subscribing witness to will Defined, 1326 Credibility, 354 CREDIBILITY Matters afi'ecting credibility Presumptions, 354 Opportunity for knowing, 354 Religious belief, 355 Positive and negative statements, 355 Probability of statements, 355 Exaggeration, 355 Difl'erent versions, 355 Contradictory statements, 355 Intentional falsehood, 356 Corroborated testimony, 356 Intelligence and capacity of witness, 356 Deportment and demeanor of witness, 357 Number of witnesses, 357 Financial standing, 357 Omission in former trial, 357 Insanity, 357 Attorney and witness, 357 Suborning evidence, 357 Relationship, 358 Custody of officer, 358 Leaving court room, 358 Circumstances, 358 Character of witness, 358 Accomplice, 358 Interest of witness not a party, 358 Efforts of compromise, 358 Marriage, 359 Parties of record, 359 Employee, 360 Compensation, 360 Before grand jury, 360 Demand of bribe, 360 Reward, 360 Detectives, 440 , . Province of court May not determine credibility, 360 ^ May call witness, 361 ■' Province of jury Number of witnesses, 362 INDEX 1425 [references are to pages] CREDITOR Pxclatioiisliip Impoaoliing conveyance, 582 CREDITOR'S BILL Imnniiiity, 685 Burden of proof, 228 Fraud, 574 Fraudulent conveyances, 580 Husband and wife, 654 CRIME Charged in civil cases, 1290 Presumption of innocence, 1022 Infants Presumption as to capacity, 701 Other charges not relevant in proof of, 1168 ■McM-e fact of arrest, 566 CRIMINAL ACTION Former testimony Absent witness. 10 CRIMINAL CHARGE IN CIVIL SUIT, 1290 CRIMINAL CONVERSATION :\rarriaoe, .-562 Competency of witnesses, 363 Seduction Proof by corre'spondence, 363 Defendant failing to testify, 363 Defenses Death of wife, 363 Consent of wife, 363 Suit against another defendant, 363 Forgiveness of wife, 363 Recrimination, 363 Conduct of parties, 363 Connivance of husband, 363 Damages Loss of services, 364 Chastity of plaintiff's wife, 364 Chastity of defendant, 364 Exemplary damages, 364 Social rank, 364 Pecuniary circumstances, 364 Aggravation of damages, 364 Mitigation, 365 Chastitv, 267 CRIMINAL INTENT Accomplice Corroboration required, 19 Homicide, 621 Intent In general, 726 CRIMINATING DOCUMENTS Compelling produotion, 1051 CROPS .Judicial notice as to maturity, 756 CROSS EXAMINATION Accomplice, 19 Account stated, 26 Bastardy, 153 Bias and hostility, 173, 175 Showing arrest or indictment as matter of impeachment, 699 Right to cross examine In general, 365 On default, 365 1426 INDEX [references are to pages] CROSS EXAMINATION (Contiimcd) By both parties, 365 Rifjht of co-defendants. :;f)6 Parol foundation for secondary, 366 Direct irrelevant, 366 In ejectment, 366 Conduct and mode Repetition, 367 Right to recall, 367 Assuming material facts, 367 Assuming answers untrue, 367 Exclusion after cross examination, 367 Memorandum, 367 Opening defense, 368 Leading questions, 368 Variant statements, 368 Matters tending to degrade witness In general, 370 Occupation, 370 Habits, 371 Drunkenness, 371 Cause and results, 371 Antecedents, 371 Former prosecutions, 371 Interest In general, 371 Relation as employee, 371 Financial interest, 371 Bias and hostility, 371 Matters irrelevant Contradiction, 372 Conversation with third party, 372 Business experience, 372 Defense not relied upon, 372 Financial condition, 372 Limit Discretion of court, 372 Direct examination. 372 Inconsistent conduct, 373 Improbability, 373 Time, place and circumstance, 373 Cause of result, 373 As to experts, 374 Re-direct, 375 As to direct examination in miscollaiicous instances, 375 Impeachment Inconsistent statements, 687 By writings, 691 CRUELTY As ground for divorce, defined. 446 CUMULATIVE EVIDENCE Limiting number of witnesses Facts conceded, 379 Principal issue, 380 Collateral matters, 380 Experts, 380 Practice, 380 Emphasis by re-examination, 381 New trial Civil causes, 381 Criminal actions, 381 Impeaching evidence, 381 Continuance for, 382 INDEX 1427 [references are to pages] CUSTODIAN OF PAPERS, 163 CUSTOM AND USAGE In general Defined, 382 What constitutes, 382 Nature and requisites, 382 Extent of custom or usage, 383 Admissibility, 383 Number and competency of witnesses, 384 Judicial notice, 384 Contracts Presumption as to contracting with reference to, 385 Admissibility of custom and usages, 386 Employer and employee, 387 Railroads Ballasting track, 388 Operation of yards, 388 Method of doing work, 388 Permitting persons to ride in cars not for passengers, 388 Inspection of engine and cars, 388 Receiving and transporting shipments, 388 Use of track as foot path, 388 Permitting shippers to ride, 389 Regulation of laborers' living quarters, 389 Boarding and alighting from trains, 389 Recommending employees, 389 Street railways Position of conductor on cars, 389 Position of passengers on cars, 389 Boarding and alighting from cars, 389 Regulating cars at street crossings, 390 Running on particular tracks. 390 Stopping cars at particular place, 390 Mines and mining, 390 Public officers, 391 Foreign customs and usages, 391 Transfer companies, 391 Manufacturers, 391 Building trades, 391 Commercial transactions, 392 Packing companies, 392 Elevators, 392 Pleading Assumpsit, 137 Case. 383 CUSTOMARY OBEDIENCE Of employers' rules, 1155 DAMAGES Action on bond, 186 Alienating affections, 92 Apprentices Loss of service. 120 Assault and battery, 126 Breach of promise, 207 Criminal conversation, 265 Dram shops, 456 Effect of tender, 1229 Eminent domain Compensation for land taken, 483 Damages for injury to property not taken. 493 1428 INDEX [REFERENCES ARE TO PAGES] DAMAGES (Continued) Expert and opinion, 522 False imprisonment, 540 Fires, 548, 549 Injury and pain, 758 Insurance, 713 Benefit societies, 713 Fire insurance, 722, 725 Libel and slander, 790, 794 Malicious prosecution, 822 Nuisance, 1187 Pecuniary circumstances, 969 Presumptions, 1012, 1013 Seduction, 1167 Set off and counterclaim. 1176 Similar settlement as proof of, 484, 1186 Trespass, 1246 Trover and conversion, 1251 View by jury, 1269 Wage3, earning capacity and domestic relations, 1273 Warranty, 1285 AVork and services, 1370, 1371 DANGER Expert and opinion, 523 DATE Rule of fixing, 393 Judgment, 393 Clerk's certificate, 393 Abstracts of title, 393 Firing bill in chancery, 393 Deed Presumption as to execution, 393 Presumption from acknowledgment, 28 Presumption as to delivery. 394 Filing. 394 Forcible entry and detainer, 394, 553 Penal action, 394 Cutting timber, 394 Contract Delivery, 394 Parol, 395, 916 Pleading and proof Assumpsit on contract, 395 Case, 395 Negotiable instruments Execution, 395 Assignment, 395 Indorsement, 395 Fixing by fact that witness heard of occurrence, 613 Presumptions, 1013. 1014 DAY BREAK Judicial notice, 760 Weather bureau records, 1290 DEADLY WEAPONS Judicial notice, 396 Defined, 306 In prosecution for homicide Intent and malice from use of, 627 Habit of carrying, 627 Possession. 627 Rale to defendant, 628 DEAF WITNESS Method of examining. 396 INDEX 1429 [references are to pages] DEALERS AS EXPERTS, 518 DEALINGS I'lesumption of good faith in general, 597 DEATH Burden of proof, 228 As affecting competency of witness, 1340 As affecting confidential communications, 1050 Seven years absence Presumptions, 396 Admissibility of evidence, 397 Weight and sufficiency, 398 Credibility of witness contradicting, 399 Cause of death. 299 Presumptions, 399 Admissibility of evidence, 399 In homicide prosecutions, 628 Continuance of life, 400, 1014 Damages presumed from fact of, 1012 Registers of births, deaths and marriages. 1110 Presumption as affecting validity of marriage, 832 Coroner's inquisition as to cause of, 400 DEBT Burden of proof, 228, 400 On plea of nil debit, 400 On plea of no7i est factum, 400 Effect of plea of payment, 400 Actions on specialties, 400 Effect of plea of -non est fnctiim, 400 Effect of plea of nul tiel record, 401 Actions on records In general, 401 Judgments, 401 Money counts, 401 Verbal promise, 401 Payment presumed from lapse of time, 964 No presumption of written evidence, 1021 Pre-existing No presumption from giving of check. 1007 For penalty, degree of proof, 976 Existence of Fraudulent conveyances, 581 Insolvency, 709 Reason for execution of instrument, 860 DECEASED OFFICER Certificate of acknowledgment Weight, 28 DECEASED PERSONS Admissions and declarations In general, 39, 42 Privies in estate, 59 Of insured in action on benefit certificate, 62, 713 Of insured in life policy, 717 Books of account, 200 To show gift an advancement. 36. 75 Book account to show advancement, 73 For or against heirs at law, 42, 1240 In disparagement of title, 53, 1239 As to mistake in deed, 53 Grantor's declarations to establish trust against grantee, 54 To show mental condition at time of making deed, 54 Not admissible to show undue influence, 54 Relating to title, 42 Gifts, 42 1430 INDEX [references are to pages] DECEASED PERSONS (Continued) To impeach contracts, 42 To show suicide, 43 To show assignment of note, 43 Marriage, 44 Of holder of note, 61, 131 Weight and sufficiency, 66 Competency of witnesses In general. 1340 to 1364 Husband and wife. 1364 to 1367 In relation to boundaries, 54, 202 As to dedication, 402 Depositions to show fornier testimony, 438 Deposition of deceased party in evidence, 1343 Lost depositions, 809 Dying declarations, 463 Death, cause of Presumptions, 1014 Seven years' absence, 1014 Former testimony Stenographer's notes, 570 Bill of exceptions, 179, 1202 Certificates of evidence, 260 Subject in general, 570 Coroner's inquest In general, 334 Concerning abortion, 8 In action against dram shop keeper. 460 Habits To aid presumption of payment, 967 To show due care, 599 To rebut allegation of suicide, 601 To aid ancient documents, 103 As to legitimacy, 778 To establish heirship, 43 As to pedigree, in general, 973 As to age, 86 Homicide prosecutions Threats of deceased, 629 Statements in general, 643 To show suicide, 43, 647 Knowledge Of contents of instrument, 764 Love of life Presumption, 1027 Photographs As proof of identity, 984 Privileged communications, 1050 Official registers of deaths, 1116 I^es gestce in general, 1132 Residence Inheritance tax, 1144 For purpose of administration, 1145 As affecting descent, 1146 Stenographers' notes. To show former testimony, 1201 Suicide Presumption, 1041 In general, 1212 Survivorship, 1216 Trusts, 1252 Value Admission of ancestor. 1264 INDEX 1431 [references are to pages] DECEASED PERSONS (Contimu d) Wages, earning capacity and domestic relations, 1376 Support of family, 1278 ;t')ijllir Wills Declarations of testator to aid construction, 1299 Memoranda to aid construction, 1303 Declarations to show testator's state of mind, 1307 Letters of testator, 1309 Letters to testator, 1309 Declarations inadmissible to show undue influence, 1317 To aid proof of revocation, 1328 To establisli lost will, 1334 DECEASED WITNESS Former testimony, 570 Bill of exceptions. 179 Certificates of evidence, 260 Stenographers' notes, 1201 Interpreter, 733 DECEIT See fraud and deceit, 579 Admissibility of confession obtained by, 294 DECISIONS OF SISTER STATE, 559 DECLARATION OF TRUST Parol. 936 DECLARATIONS Admissions and declarations, 33 to 68 Eef^ gestce, 1132. DECREE Best and secondary, 170 Judgments, 758 Draft of. not record. 1099 DECREE IN CHANCERY Presumptions. 1015 DEDICATION Burden of -roof. 228, 402 Presumptions, 402 Admissibility of evidence Parol in general, 402 Direct proof by owner, 403 Plats and platting, 403 Explanation of plat, 403 Acts and declarations. 403 Not listed for taxation, 404 Owner's motives, 404 Condemnation proceedings, 404 Fencing premises, 404 Adjusting assessment, 404 Condition in deed, 404 ITser, 405 Weight and sufficiency of evidence Acts and declarations, 405 Blank in plat. 405 Judgment recovered for obstructing, 406 Fencing out road, 406 Building sidewalk, 406 As to intent, 407 As to acceptance, 407 Estoppel to deny, 408 DEED AS MORTGAGE Presumption, 411 Burden of proof. 411 Parol evidence, 411 Weight and sufficiency, 412 1432 INDEX [keferences are to pages] T n "".' 3 '3^ •■•" ri"; DEEDS Admissions and declarations Fraud and undue influence, 54 Advancements, 73 Acknowledgment, 26 Ambiguity, 100 Best and secondary, 167 Burden of proof As mortgage, 228 Bill to set aside, 228 Duress. 228 Insanity and undue influence, 228 Delivery on condition, 228, 415 Lost deeds, 228 Admissibility Guardian's deed, 409 Master's deed, 409 Sheriff's deed, 409 Tax deed, 409 Foreign deed, 409 Warranty deed, 410 Delivery In general, 414 Execution of deed, 410 Recording, 410 Description, 410 Consideration, 411, 306 Date Presumption as to execution, 393 Escrow, 500, 416 Forcible entry and detainer, 551 Parol As mortgage, 934 Terms, 934 As trust, 934 Consideration, 934 Invalidating deed, 934 Sustaining deed, 935 Description, 935 Parties, 935 Interest, 935 Reservation, 935 Date, 935 Acceptance, 935 Delivery, 936 Recording, 936 Bill to correct mistake, 936 Bill to redeem, 936 Presumptions, 1015, 1016 As to release of homestead, 617 Notice of unrecorded deed, 1067 See posi, voluntary conveyances DE FACTO CORPORATIONS See corporations, 342, 343, 344 DEFAMATION Libel and slander, 787 DEFAULT Burden of proof. 228 Admission by default, 412 Right to introduce evidence after, 412 Motion to set aside default, 412 Counter affidavits, 412 Right to cross examine, 365 INDEX 1433 [referknces are to pages] DEFECT Siniilar accident, 1182 Knowledge of. 287 Expert on Opinion. 525, 526 DEFENSE OF HABITATION Tloniic'ido. 651 DEFINITIONS Abstracts of title, 10 Accomplice, 19, 099 Account stated, 23 Adultery, 69 Advancements, 73 Affidavits, 80 Alibi. 90 Ancient documents, 103 Arson, 122 Attestation of wills, 1324 Bills of discovery, 444 Books of account, 188 Bribery, 209 Burden of proof, 215, 503 Circumstantial evidence, 269, 501 Cloud on title, 273 Condonation, 450 Confessions, 292, 503 Contempts, 312 Corpus delicti, 350 Credible witness Wills. 1326 Cruelty, 446 Cumulative. 504, 1067 Custom and Usage, 382 Deadly weapons, 396 Domicile, 451 Duress. 461 Dying declarations, 463, 634 Estoppel, 504 Evidence, 501 Fiduciary relations, 542 Gambling contracts, 585 Gifts. 592 Good faith. 595 Habitual drunkenness, 449 Heirs, 1341 Impotency, 448 Inhabitant, 1141 Inn keepers. 706 Insane delusion, 1306 Insolvency, 709 Interest, 730 Judicial notice, 761, 1293 Larceny, 706 Leading questions, 771 Lottery, 811 Malice Homicide. 622 Malicious prosecution, 817 Motion to direct verdict, 442 Necessaries. 702 Novation, 867 Nuisance. 869 Original telegram. 1225 Official records. 1080 Patrons of disorderly house, 446 1434 INDEX [references are to pages] DEFINITIONS (Continued) Pedigree, 973 Pledge, 992 Positive evidence, 994 Preponderance, 503 Presumptions, 502, 1000 Prima facie, 502 Privileged communications, 793 Probable cause, 815 Ratification, 1064 Real evidence, 501 Reasonable doubt, 1065 Rebuttal, 503, 1067 Receiver of stolen property, 1076 Relevancy, 1112 Relevant, 503 Bes gestce, 501 Residence of voter, 320 Retainer, 143 Suicide, 1212, 712 Telegrams, original, 1225 Testamentary capacity, 1305 Testimony, 501 Undue inflvience, 1316 Usury, 1260 Waiver, 1279 Waste, 1286 DEGRADE Questions tending to degrade witness, 370 DEGREES OF SECONDARY EVIDENCE, 165 DEGREE OF PROOF See weight and sufficiency, 1290 Penalties, 974 Reasonable doubt, 1165 DELIBERATION Presumption, 1016 DELIVERY Intent, 413 Presumptions, 414 Deeds, 414 Personal property as payment, 415 Date of contract, 415 Parol evidence Conditional delivery, 415 Opinions of witnesses, 416 Of ancient documents, 104 As relating to gifts, 594 See Acknowledgments, 26 DELUSION, 1306 DEMAND Bailment, 149 Forcible entry and detainer, 553 Replevin, 1126, 1127 Trover and conversion, 1250 DEMAND FOR BRIBE As affecting credibility, 360 DEMEANOR OF WITNESS As affecting credibility, 357 Opinion as to. 521 DEMONSTRATIVE EVIDENCE In general, 416 Preliminary proof, 417 Admissibility generally In general, 417 INDEX 1435 [references are to pages] DEMONSTRATIVE EVIDENCE (Contiimod) Ancillary, 417 Particular instances, 417 Objections, 418 Experiments Mechanical demonstration, 507 DEMURRER Admissions and declarations, 63 DEMURRER TO EVIDENCE IMust be in writing, 418 What it admits, 418 Joinder, 418 DENIAL OF EXECUTION Issues raised, 411) In general, 419 Guaranty of promissory note, 419 Covenant on lease, 419 Delivery, 419 Authority of agent, 419 Where instrument not set out, 419 Foreclosure, 419 - The affidavit Who should make, 420 When filed, 420 As evidence, 420 Admissibility of evidence In general, 420 Authority of corporate officer, 420 Alteration, 421 Personal obligation, 421 Policy of insurance, 421 Lease, 421 Bonds, 421 Preponderance sufficient, 421 DENTIST Expert. 525 DEPARTMENT RECORDS Federal government, 1094 To establish anti-saloon territory, 115 Weather bureau, 1289 DEPORTMENT AND DEMEANOR OF WITNESS As affecting credibility, 357 Opinion as to, 521 DEPOSITS Judicial notice of manner of withdrawing, 754 Embezzlement, 482 Books of account, 196 DEPOSITIONS Admissions and declarations In another case, 65 Admissible in bastardy case. 151 Admissions in to prove trust, 1258 Books attached to. 843 Refusal of witness to attach exhibits, 434 Who may take, 422 Notary public. 422 Disinterested persons. 422 Naming commissioner, 422 Caption and certificate Character of officer certifying. 422 Form, 423 Waiver of issuance of commission, 423 Time of taking, 423 Swearing witness, 423 1436 INDEX [keferexces are to pages] DEPOSITIONS (Continued) Certificate to identify, 423 Necessity for notarial seal, 423 Accompanying deposition, 433 Indorsements, 424 Notice Necessity for, 424 Names of witnesses, 424 Residence of witness, 424 Objections, 424 Waiver, 424 Filing interrogatories, 424 What insufficient, 425 What sufficient, 425 Claim against estate, 425 Joint debtors, 425 Affidavit, 524 Adjournments, 425 Opening, 426 Attendance of witnesses, 426 Objections and motions to suppress, 426 Grounds, 426 Time, 428 Form, 429 Admissibility in evidence Immaterial evidence, 430 Copies, 430 Taken in another suit, 430 Stipulation, 431 Party making evidence for himself, 431 Other parties, 431 Hearsay, 431 Like matters, 431 Taken in foreign language, 432 Former testimony, 432 Taken at coroner's inquest, 432 Subscribing witness, 432 Dictated or written by attorney. 432 When deponent present at trial, 432 Presence of attorney, 432 After substitution of new parties, 432 Parts untrustworthy, 432 Weight as evidence, 433 Parties entitled to use May be used by either party, 433 Subsequent party to suit, 433 Efifect of use, 433 Right to examine deponent at trial, 433 Attaching exhibits Statutory provisions, 434 Copies of originals, 434 Refusal to, 434 Election of method of examination, 435 Errors and corrections, 435 Second depositions, 435 Misdemeanors, 435 Rendering adverse party competent, 435, 1343 Examination of witness, 435 DEPUTY Authentication of record, 557 DESCENT AND DISTRIBUTION Burden of proof Existence of heirs, 229 Intestacy, 229 INDEX 1437 [references are to pages] DESCENT AND DISTRIBUTION (Continued) Will t'stablishcd, 221/ Lcfiitimacy, 777 Pedigree, 972 Intestacy, 734 Heirship. 616 DESCENT OF REALTY, 229 DESCRIPTION Admissibility of evidence Contracts for sale of real estate, 436 Deeds, 436 Wills, 436 Burden of proof, 436 Ambiguity, 100 Of persons Wills, parol, 1302 Identity, 673 Parol, 928, '935, 950 Wills, 1301 to 1303 DISCOUNT Burden of proof, 229 DESERTION Burd(>n of proof. 229 Grounds for divorce Burden of proof, 447 Time of absence, 447 Intention, 448 Reasonable cause, 448 Offer to return, 448 Consent, 448 Uncorroborated testimony, 448 DESTRUCTION, SUPPRESSION AND FABRICATION OF EVIDENCE Destruction and suppression Presumptions, 437 Right to prove, 438 Destruction by co-defendant or joint obligor, 438 Relief from burden, 438 Fabrication Presumption, 438 Right to prove, 438 Appearance of document, 438 Secondary evidence Party destroying cannot offer secondary, 439 Weight and sufficiency, 439 DETECTIVES Credibility Criminal action, 440 Civil actions, 441 DEVISE Parol to identify property, 1301 DEVISEES Admissions and declarations, 60, 1318 DIAGRAMS Parol explanation, 936 Admissibility In general, 441 Preliminary proof, 441 Ancillary use. 441 Plat of street and intersections, 441 Division fence, 442 Location of property, 442 Survey, 442 Blue print, 442 Profile of improvement, 442 Ii38 INDEX [references are to pages] DILAPIDATION Of account book, 197 DILIGENCE Due search, 163 Lost instruments. 801 DIRECT EVIDENCE Abandonment of homestead, 620 As to insolvency, 710 Defendant in action of malicious prosecution, 819 False pretenses Intention, 541 Reliance upon representations, 541 Fraud, 576 Grantor as to intent, 582 Fraud and deceit, 579 Gamblinfj contracts, 586 Good faith in acquiring title, 596 Intoxication, 735 Malicious intent, 621 Ownership, 905 Intention, 725 DIRECT EXAMINATION Adverse party, 76 Cross examination. 373 Bias and hostility, 173 LeadinjT questions, 772 DIRECTING ATTENTION, 773 DIRECTING VERDICT Motion Defined, 442 When motion waived, 443 Evidence Not weighed, 443 Taken as true, 443 Plaintiflf entitled to benefit of all evidence, 443 Scintilla rule, 443 DIRECTORS MEETING Notice of, 348 DIRECTORY City, 273 Chicago city directory Judicial notice, 755 DISASTER Survivorship, 1216 DISCHARGE IN BANKRUPTCY, 222 DISCHARGE OF EMPLOYE Cause of, 1374 Husband may testify as to drunkenness, 457 DISCONNECTION OF TERRITORY Judicial notice, 741 DISCOVERY Bills of discovery, 444 Defined, 444 Jurisdiction in equity, 444 Cumulative remedy, 444 Necessary averments of bill. 444 Who entitled to relief, 444 Incriminating matters, 445 Answer, 445 Immunity. 685 DISCREDITING WITNESS TTow far party may discredit own Avitness, 686 DISCRETION OF COURT Cross examination, 372 INDEX 1-A39 [references are to pages] DISCRETION OF COURT (Continued) Recallino; witness, 1070 Order of proof. 889 Limiting number of witnesses, 379 View by jury, 1268 Leading question. 774, 775 Evidence after argument, 891 DISEASES OF ANIMALS Exi)ert testimony a.s to, 109 DISGRACE As ell'ecting privilege of witness, 683 As element of damage in aetion for seduction, 1168 DISOBEDIENCE Of employer's rules, 1155 Of witness Order of exclusion, 504 Contempts, 312 DISPOSITION OF ANIMALS, 107, 754 DISORDERLY HOUSE Admissibility of evidence General reputation. 445 Circumstantial evidence, 446 Patrons defined, 446 DISTANCE Experiments, 507 Expert and opinion, 517, 528, 529, 531 Judicial notice, 745 Speed, 1192. 1194 DIVORCE Alienating affections, 92 Burden of proof, bigamy, 229 Degree of proof, 446 Answer, 446 Cruelty Defined, 446 Abusive language, 447 Drunkenness, 447 Failure to support, 447 Complaint by wife, 447 Single act, 447 Two or more acts, 447 Action by husband, 447 Desertion Burden of proof, 447 Time of absence, 447 Intention, 448 Reasonable cause, 448 Offer to return, 448 Consent, 448 Uncorroborated testimony, 448 Impotency Defined. 448 Burden of proof, 448 Lapse of time, 449 Drunkenness Habitual drunkenness defined, 449 After filing suit, 449 Sobriety. 449 What sufficient proof, 449 Negative testimony, 449 Defenses Adultery, 449 Connivance, 449 1440 INDEX [REFERENCES ARE TO PAGES] DIVORCE (Continued) Condonation Defined, 450 Presumptions, 450 Specific acts, 450 Knowledge, 450 Cohabitation, 450 Witnesses Number of, 450 Divorced wife. 450 DOCKET AND MINUTES OF JUDGE, 738 DOCKETS OF JUSTICES OF PEACE In general, 762 False imprisonment, 539 Malicious prosecution, 822 Copies, 1105 DOCTOR Malpractice, 989 ,,„.„. orr Expert as to mental and physical states, 514, 519. 845, 849 to 855 Physicians and surgeons, 987 Medical and surgical services, 836 Assent to services, 130 Compelling to testify. 854 Osteopath, 854 DOCUMENTARY EVIDENCE Abstracts of title, 10 Account stated, 23 Affidavits, 80 Affidavits for continuance, 83 Ancient documents, 103 Answers, 110 Bill of exceptions, 179 Bill of lading, 179 Books, 187 Books of account, 188 Certificates, 256 Certificates of evidence. 260 City directory, 273 City and village records. 1087 Copies, 328, 1097 Coroner's inquest, 334 Corporate records, 338, 340, 1091 Deeds. 409 Depositions, 422 Diagrams, 441 Dying declarations, 468, 1214 Foreign judgments, 554 Former pleadings, 568 Hospital records, 653 Hotel registers, 654 Instructions, 710 Inventory of estate. 904 Judges dockets and minutes, 738 Judgments, 738 Legislative journals, 776 Letters, 779, 1309, 1319 WTiole of letters. 1296 Letter press copies, 786 ]\Iemorandum, 838 Newspaper, 863 Ordinances, 892 Patents, 961 Photographs, 981 Ti^DEX 1441 [references are to paces] DOCUMENTARY EVIDENCE (Continued) Plats. 9'JO Police records, 994 Receipts, 1071 Records. 1080 See Posi, records School recoid. 86 Registers of births, deaths and marriages, 1116 Rules of court, 1153 Rules in actions of negligence, 1154 Stenographer's notes. 1201 Stereoscopic view, 1204 Stipulations. 1204 Surveys and field notes, 1214 Tax deeds, 1216 Tax receipts. 1223 Telegrams. 1224 Train bulletins, 1243 Weather report, 1289 Wills. 1237 Authentication, see ante, authentication Acknowledgments. 26 Advertisement, 214, 540, 811, 1148, 1284 Alterations and erasures, 93 Ambiguity, 97 Anti-saloon territory Record of election creating, 114 Government license. 115 Assessor's schedules, 930, 1264 Ballots, 319 Best and secondary Document beyond jurisdiction. 156 Voluminous documents, 156 Wrongful withholding of evidence, 157 Lost or destroyed writing, 158 Preliminary proof, 158 Notice to produce. 159 When notice not necessary, 159 Loss of original, 162 Due search, 163 Degrees of secondary evidence. 165 Counterpart. 165 Letters and letter press copies, 166 Telegram. 167 Deed, 167 Unacknowledged instrument, 168 Contract in court report. 168 Duplicates and copies, 168 Official writings, 169 Court records, 170 Corporate records, 171 Objections, waiver and consideration, 173 Blueprint, 442 Catalogue, 1284 Certificates Non existence of record. 256 Miscellaneous certificates, 257 Weight and sufficiency, 259 Presumptions, 259 Official certificates of general land oflfice 1237 Certified and examined copies Records in general. 1097 Must be certified copy of record, not record, 1097 1442 INDEX [references are to pages] DOCUMENTARY EVIDENCE (Continued) Erasures and intt-'ilineations, 1098 Copies difl'ering, 1098 Aid by parol, 1099 Letter press copies, 329 Checks, see ante, checks Circular, 579, 1284 Civil service rules, 333 Conspiracy Bank books, 307 Police records, 307 Copies Private writings, 328 Public writings. 330 Ship enrollment, 334 Compared copy, 562, 896, 1098 Carbon copy, 192 Duplicates, 168 Counterpart, 165 Sworn copies, 1109 Copies attached to deposition, 434 Foreign ordinance, 896 Corporate records Articles of incorporation. 338 Corporate record and books. 340. 1091 Cross examination As to writing. 369 Counsel entitled to memorandum. 842 Denial of execution, 419 Destruction, fabrication and suppression of evidence, 437 Foreign judgments, 554 iJnio-i' Foreign law, 558 Handwriting, 602 Illegally obtained evidence, 682 Immunity, 682 Incriminating documents, 1051 Indebtedness Not presumed evidenced by writing. 1021 Lost instruments Preliminary proof for secondary evidence,. 802 Due search. 803 Proof of contents. 803 Proof of execution. 804 Particular instruments. 804 to 810 Lost wills, 811 Newspaper article, 788 Objections, 874 Order of proof, 892 Official registers School record, 86 Registers of births, deaths and marriages. 1116 Ship enrollment. 904 Weather reports, 1289 Internal revenue record, 115 Registers of land office, 475 Parol Interpretation of writings. 913 Impeachment By written statements generally, 325, 690 Public documents Statutes. 1195 Foreign law, 558 Legislative journals, 776 INDEX [references are to pages] DOCUMENTARY EVIDENCE (Continued) Payment Need not be proved by, 'J03 Production of documents, 1051 Release, 111 'J When may be oU'ered, 892 Wliole of, 1296 Destruction of documentary evidence Party destroying cannot oiler secondary, 439 Subject in general, 437 Best and secondary Subject in general, 156 Refusal or failure to produce Subject in general, 1112 DOGS See animals, 108 DOLLAR Abbreviation Judicial notice, 753 DOMESTIC JUDGMENTS See judgments. 738 DOMESTIC RELATIONS injury to person, 1273 ^Vrongful death, 1276 Action by widow, 1279 Homicide, 630 See Husband and Avife, 655 Infants, 700 Work and services, 1370 DOMICILE Admissions and declarations Paupers, 61 Intent, 62 Burden of proof, 229 Presumptions, 451 Defined In general, 451 Infants, 451 Married women, 452 Persons iion compos, 452 Pauper, 452 Person in military or naval service, 453 College students, 453 Admissibility of evidence Declarations, 453 Voting, 453 Party's own testimony. 453 Avoidance of process, 453 Real inquiry, 454 DOUBT Reasonable doubt, 1291 Defined, 1065 Subject in general, 1065 DOUBTS AND RUMORS As to paternity of child, 778 DOWER Adultery, 72 Burden of proof To show seizure, 329, 454 Proof necessary In general, 454 Marriage, 454 Death of husband, 454 Seizin of husband Burden of proof, 229, 454 1443 1444 INDEX [refekences are to pages] DOWER (Continued) Estate of inheritance, 454 Estate in remainder, 454 Time of seizin, 454 Title deeds, 454 To bar dower Degree of proof, 455 Adultery, 455 Ante nuptial contract, 455 Post nuptial contract, 455 Eminent domain, 455 Limitations, 455 Value Proof of by life tables, 455 Inchoate, 456 DRAFT OF DECREE, 1099 DRAINAGE .Judicial notice, 756 DRAM SHOPS Civil action for damages Presumptions, 456 Burden of proof, 456 Admissibility of evidence, 456 DRUGS illegal sale, 1171 DRUNKENNESS Dram shops, 456 Homicide, 645 Intoxication, 734 Of witness, 737 As ground for divorce Habitual drunkenness defined, 449 After filing suit, 449 Sobriety, 449 What suiUcient, 449 Negative testimony, 449 DUE CARE Burden of proof, 230 Habits admissible on issue of, 599 Conclusions of witnesses, 285 Presumption, 1017 Weight of presumption, 1291 Presumption as to love of life, 1027 Presumption from proof of habits, 1020 Expert and opinion, 522 Proof where no eye witnesses, 599 Weight and sufficiency of proof, 1291 DUPLICATE COPY To prove aitcration, 96 As degree of secondary evidence, 165 Books of account, 192 Patents, 962 DURESS Burden of proof, 230 Defined In general, 461 Threats of civil action, 461 Threats of criminal prosecution, 461 Parties Surety, 461 Husband and wife, 461 Parent and child, 461 Innocent third party, 461 INDEX 1445 [references are to pages] DURESS (Continued) W'liat may be considered Laches, 462 Weight and sufficiency, Threats, 462 Duress of goods, 463 Imprisonment, 463 DUST Explosions, 534 DaTiiago from. 496 DUTIES OF SERVANT Opinion, 522 DUTY Officers, , 301 FIDUCIARY RELATIONS Defined, 542 Undue influence, 542 Question of fact, 542 Presumptions, 542 FIELD NOTES, 1215 FINAL SETTLEMENT Of guardian, 599 FINANCIAL CIRCUMSTANCES Money lent, 859 As alTecting damages, 969 Fraud Purchaser, 577 Vendor, 582 Fraudulent conveyances, 582 Beneficiary of gift, 593 Of those having claim on testator's bounty As test of testamentary capacity, 1307 In proof of gambling contracts, 587 Payment of debt, 968 Not considered as affecting credibility, 356, 357 INDEX 1455 [references are to pages J FINANCIAL CIRCUMSTANCES (Continued) Question calculated merely to show wealth of party, 372 On issue of forgery, 607 FINGER PRINTS Expert. 523 FIRE ARMS Presumptions and burden of proof, 544 FIRE ENGINE Speed, 1194 FIRE INSURANCE, 721 FIRES By locomotives Questions for jury, 544 Presumptions, 544 Prima facie case. 545 Want of negligence. 545 Proper equipment. 545 Other fires, 545, 546 Direct evidence, 546 Ordinances, 547 Weight and sufficiency of evidence, 547 Ownership of property. 548 Ownership of engine. 548 Elements and measure of damages, 548 FIRING PISTOL Experiments, 508 FIRM See partnership, 955 FIXTURES Intention, 549 Reservation, 550 FLIGHT, 550 FLOTABILITY As test of navigabilitv, 1289 FOOTINGS IN BOOKS OF ACCOUNT, 189, 201 FOOT PRINTS Identity, 574 FORCE Rape, 1061 Robbery, 1150 Seduction. 1167 FORCIBLE ENTRY AND DETAINER Nature of action, 550 Possession, 551 Burden of proof. 551 Title, 551 Force, 552 Notice and demand, 553 Deeds, 551 Date of entry, 553. 394 Conveyance after suit, 553 After acquired title, 553 Ejectment, 553 Immoral purpose. 553 FOREIGN COUNTRIES Judgments. 557 Deposition taken in, 432 FOREIGN COURT Judicial notice. 757 FOREIGN DEED, 409 FOREIGN JUDGMENTS Sister state Necessity and presumption as to jurisdiction. 554 1456 INDEX [references are to pages] FOREIGN JUDGMENTS (Continued) Conclusiveness, 554, 555 Admissibility, 555 Justice of peace judgments, 555, 1106 AVeight and sufRciencj' as evidence, 556 Authentication, 556, 1107 Copy, 557 Ck)urts of foreign countries Conclusiveness, 557 Authentication, 557 Possession as evidence of ownership, 903 FOREIGN LANGUAGE Interpreter. ~'-l2 Deposition taken in, 433 FOREIGN LAW Construing foreign will, 1303 Acknowledgments Proof of to aid, 39 Pleading, 558 Judicial notice, 558 Presumptions Existence of common law, 558 Construction of statute, 558 Adoption of statutes. 558 Similarity of laws, 559 Interest laws, 731 Judicial construction. 559 Printed reports and statutes, 559 Foreign legislative acts, 560 Parol evidence, 560 Expert, evidence, 560 Proof before court, 560 FOREIGN WILLS, 1237 FORFEITURE Burden of proof, 231 FORGERY Qtiestions of law and fact, 560 Presumptions and burden of proof, 561 Secondary evidence, 561 Photographs, 561 Other forgeries, 561 Possession of other forged instruments, 561 Admissions and confessions, 562 Proof as to correctness of copy, 562 Venue, 562 Signature not in handwriting of defendant, 56S Variance, 563 Witness, 563 Financial circumstances, 607 FOREMAN Entries in book as part of res gestce, 193 Memoranda of, 839 As witness where joint defendant, 1348 FORMER ADJUDICATION Identity of subject matter, 563 Parol, 564 Where shown by record, 564 Competency of pleadings and files, 565 Certificate of evidence, 565 Identity of parties Parol. 565 FORMER CONVICTION Impeachment of witness Admissibility, 566 INDEX 1457 [references are to pages] FORMER CONVICTION (Continued) liit'amoiia crime, 566 ]\hist. be conviction, 566 Manslaughter. 566 Record proof criminal action, 566 Proof in civil action, 567 Presumption as to identity, 567 FORMER JEOPARDY Admissibility of evidence, 568 Pleading and practice, 568 Felonies and misdemeanors, 568 Identity of action Proof bv parol. 568 FORMER OPINIONS, 368, 694 FORMER OWNER Admissions In disparagement of title to real property. 58, 1239 In disparagement of title to personal property, 905 To prove ownersliip of personal property, 58 As proof of value, 1264 Of assignor of note, 131 FORMER PLEADINGS Former adjudication To show identity of action, 565 As admissions Common law, 568 Chancery, 113, 569 Stipulations, 570 Authentication, 569 Lost pleadings. 569 FORMER STATEMENTS Impeachment bv proof of, 687 FORMER TESTIMONY Admissions, although compulsory, 64 Judicial notice, 757 Effect of introducing testimony of deceased witness, 1343 Deceased witness Civil actions, 570 Criminal actions, 571 _ . ■ , -^ ,,-, As to testimony in criminal prosecutions, in subsequent civil suit, 5<1 Cross examination not test, 571 Living witness Insane witness, 1201 Absent witness, 9 Witness present at trial. 572 Subsequent incompetency of witness, 572 Secreted witness, 572 For purpose of impeachment, 572 Parol, 573 Whole of utterance, 1294 Depositions, 574 Where deposition not introduced, 572 FORMER WILLS As relating to testamentary capacity, 1308 As relating to undue influence. 1318 FOUNDATION FOR IMPEACHMENT, 688 FOWLS See animals, 108 FRAUD ^ , _„„ Presumptions and burden of proof, 5(4, 233 .^ In general, 574 Fiduciary relations, 575 Charge in negative form, 575 1458 INDEX ■ [references are to PAGESl FRAUD (Continued) I'arol Where contract in writing, 575 Financial condition, 577 Cliaracter and reputation, 577 Other fraudulent acts, 577 Preponderance, 578 Doubt may remain, 578 Admissions and declarations, 54 Kxpert and opinion. 523 FRAUD AND CIRCUMVENTION As to consideration, 304 FRAUD AND DECEIT Elements, 579 .."Sii ,c PlaintiflF's reliance, 579 Circumstantial evidence, 579 Weight and sufficiency, 579 Rescission, 580 FRAUDULENT CONVEYANCES Presumption Motive, 580 Voluntary conveyance, 581 Relationship, 580 Preference to creditor, 581 Inadequacy of consideration. 581 Similar sales, 583 Direct testimony as to good faith, 582 Financial condition of parties, 583 Declarations of grantor, 583 Knowledge of parties, 584 Specific intent, 584 Mortgage exceeding debt, 584 Grantor as witness, 585 FREIGHT RATES Judicial notice not taken of, 760 Proof of fairness and reasonableness. 585 Cro'ss examination of expert, 37G G GAMBLING CONTRACTS Defined, 586 Burden of proof, 586, 233 Presumptions, 586 Intention, 586 Course of dealing, 587 Similar transactions, 587 Correspondence between parties, 588 Contract not conclusive, 589 Mutuality of intention, 589 Preponderance of evidence, 589 Financial circumstances of parties, 970 GAMING Judicial notice, 757 Losses Immunity of defendants, 685 Competency of husband as to, 590 Recovery of money lost Burden of proof, 590 Immiinity, 590 GAMING HOUSE Guilty knowledge, 591 Proof beyond reasonable doubt, 591 Immunity, 682 INDEX 1459 [references are to pages] GARMENT Kxibition to jury, 417, 638 GARNISHMENT Burden of proof, 232 Admissibility of answer, 593 Disproving answer, 592 Good faith in assignment, 597 GAS Value, — subject of larceny, 770 Nuisance, 870 GATE, 417 GAUGE READINGS From war department, 992 GENERAL ISSUE See I'ost, Pleading and Proof GENUINENESS OF HANDWRITING See handwriting. t)()2 GEOGRAPHICAL FACTS, 742, 757 GEOLOGICAL FORMATIONS Judicial notice, 757 GESTATION Bastardy, 152, 153 Expert, 154 GESTURES As provocation, homicide, 648 GIFTS Defined, 592 Presumptions, 593 Burden of proof, 2.32, 593 Declarations of donor, 593, 595 Declarations of deceased persons, 42 Delivery, 594 Intention, 595 Clear proof, 595 GOD Belief in as affecting competency of witnesses, 1339 GOOD CHARACTER In civil actions, 263 In criminal actions. 284 GOOD FAITH Accord and satisfaction, 21 As to color of title Defined, 595 Presumptions, 596 Grantor's ancestors, 596 Intermediate owner. 596 Direct testimony of occupant, 596 Bringing of suit. 597 Garnishment. 597 Guardian and Ward. 597 Libel and slander, 597 Business transactions generally. 597 Direct testimony by grantor, 582 GOODS Market price, 823 Expert opinion as to condition of, 518 GOVERNMENT LICENSE Anti saloon territory, 115 GOVERNMENT REGULATIONS Judicial notice, 757 GOVERNOR'S DEED Need not be acknowledged, 27 1460 INDEX [references are to pages] GRAND JURORS Aliidavits To impeach return, 598 In support of indictment, 598 As impeaching witnesses, 695 GRAND JURY Immunity, 684 Examination of witnesses ("ompetencv of evidence before, 598 GRANTOR AND GRANTEE Fraudulent conveyances Intention. 582 Financial condition, 582 As witness, 585 Competency, as to transactions with deceased person, 1349 Declarations of former owner as against grantee, 42, 52, 57, 1233 GRANTOR'S DECLARATIONS As to ownership of personal property, 54, 58, 905, 999 As to ownership of real estate, 1238 GROANS As part of res gestae, 846, 1133 GUARANTY Burden of proof, 232 Circumstantial ]>roof. 1285 GUARDIAN AND WARD Burden of proof, 232 Presumptions as to transactions. 598, 1020 Guardian's account, 598 Effect of final settlement, 599 Receipts of ward, 599 Effect of judgment against guardian, as to surety, 1046 GUARDIAN'S DEED As evidence of title, 1236 GUARDIANSHIP Proof of as to mental capacity, 1309 GUILT Not presumed, 1022 IVIust be proved beyond reasonable doubt, 1065 Proof of. when issue in civil case. 1290 Admission of from conduct. 1291 GUN Presumption from injuries by, 1019 Experiment in firing, 508 Homicide, 627 H HABEAS CORPUS, 540 HABITATION Defense of Prosecution for homicide, 641 HABITUAL DISOBEDIENCE Of employers' rules, 1155 HABITS On question of suicide, 601 As affecting credibility of witness, 371 Intoxication. 602, 736* As to negligence, 599, 602 Of employees generally, 600 Of third persons. 601 As to contracts for payment of money, 601 Insane plaintiff in personal injury action, 602 Animals Malicious mischief. 602 INDEX H61 [references are to pages] HABITS (Continued) Injury by dog, 105 Of carrying weapon, 627 HAIR Opinion evidence of Specimens, 627, 675 HANDWRITING Expert and opinion, 523, 604 Genuineness Comparison in general, 602 By court, 603 By jury, 603 By witnesses, 603 Competency of witnesses, 604, 605 Examination of witness, 606, 983 Photograpliic copy, 607 Motive for executing, 607 As test of insanity, 607 HARDENING OF ARTERIES As alfecting testamentary capacity, 1304, 1314 HARVEST TIME Crops Judicial notice, 756 HATRED Bias and hostility of witness, 173 HEALTH AND PHYSICAL CONDITION Opinions, 523 Presumptions, 1020 Mental and physical states In general, 844 HEARING Conclusions of witnesses, 291 Fact, not opinions, 286 Of signals, 996 Whether witness would have heard, 996 As positive evidence, 994, 995 HEARSAY In general, 607 EfTect where hearsay admitted, 1125 Declarations in absence of party to be bound, 608 Statements of third persons Criminal actions, 609 By-standers, a's part of ret gefito', 1141 Value, 611 Receipts of third persons, 612 In action against co-surety, 1072 Reference to such third person, 612 Ex parte affidavits, 609 Agents' reports, 609 Officers, 609 Recitals in deeds, 009 Letters, 610, 781 Declarations of maker of note, 610 Declarations of plaintiff in action for breach of promise, 611 Medical books, 611 On issue of partnership Declarations of alleged partners, 611 As to phvsical condition of plaintiff, 611, 612 Value, 611 Receipts of third persons In action against co-surety, 1072 Miscellaneous instances, 612 Impeachment of hearsav evidence, 615 Weight, 616 Self serving declarations, 38 1462 I^'^EX [REFEKENCES ARE TO PAGES] HEAVENLY BODIES Course of Judicial notice, 754 HEIRS Admissions and declarations, GO, 1318 Presumption as to person leaving, 616 Dolincd, 1341 HEIRSHIP Admissions and declarations, 43 Presumptions, 616 Conclusions of witness, 616 Certificate of jjrobate judge, 616 Wciglit and suHiciency, 616 Decree in partition, 616 Petition in probate, 617 Pedigree In general, 972 Intestacy, 734 HEREDITY No presumption of insanity from. 1157 Degree of relationship of collateral kindred, 1158 HIGHWAYS Abandonment, 1 Burden of proof, 232 Dedication, 402 Expert and opinion, 524 Obstructing, 881 HISTORY .Tudicial notice. 757, 617 HISTORICAL FACTS ()])inions inadmissible, 524, 617 HOLOGRAPHIC WILL Testamentary capacity, 1316 HOMESTEAD lUirdon of proof, 233, 618 Presumption Abandonment, 1, 617 Release in warranty deed, 617 From occupancy of wife, 618 Value, 618 Weiglit and sufficiency of evidence, 619 Voting, 619 Direct testimony of claimant, 620 Judicial notice of subdivision, (ISO Competency of widow, 669 HOMICIDE Innocence Presumption as to, 620 Malicious intent Direct testimony, 621 Presumption, 621 Malice Defined, 623 Presumptions, 624 Necessity of proof, 624 Motive Not essential. 624 Tm[)roper 7-elations, 624 Corpus delicti. 350, 625 Defined, 625 Circumstantiiil proof, 625 Extra judicial confessions, 625 Circumstantial evidence INDEX 1463 [refer KNCES ARE TO PAGES] HOMICIDE (Coiitimu'd) " '^' Legal evidence, 625 Kinds. 026 Weiglit. 626 Chain simile, 626 Deadly weapons .hidicial notice, 627 Intent and motive from use of, 627 Habit of carrying 627 Possession, 627 Sale to defendant, 627 Cause of death, 628 Threats of defendant Principle u])oii wliich admitted, 628 Knowledge of assailed, 628 Conspirators, 628 Hearsay, 628 Nature and weight, 628 Explanation, 629 Threats of deceased Not communicated, 629 Overt act, 629 Purpose of proof, 630 Of suicide, 647 Threats of third persons Admissibility, 630 Domestic relations Of deceased, 630 Of accused, 630 Previous quarrels, 630 Character of accused In general, 631 General reputation, 631 Particular acts, 631 Time, 632 Proof by stipulation, 632 Limiting number of witnesses, 632 Weight, 632 Character of deceased In general, 632 When defendant assailant. 633 Where circumstances doubtful. 633 ]\Iust first be attacked by defendant. 633 Particular acts, 634 Dying declarations In general, 463 Defined, 634 Principle upon which admitted, 634 Fixed belief, 634 Actual danger of death, 634 Preliminary proof, 634 Officers and oflRcial character Knowledge of accused. 636 Ordinance defining duties. 636 Excessive brutality of officer. 637 Admissibility of warrant, 637 Threats against officers as a class, 637 Physical objects in evidence. 638 Separate oflfenses, 638 Admissions and confessions Constitutional privilege, 639 Implied confessions. 639 Where accusation denied, 1292 1464 INDEX [references are to pages] HOMICIDE (Continued) Co-defendants and conspirators, 640 Whole of admissions, 641 Value, 641 Ees gestce Acts and statements of accused, 642 Acts and statements of injured persons, 643 Acts and statements of bystanders, 643 Insanity Presumption, 644 Burden of proof, 644 Non expert testimony, 644 Good character, 645 Degree of insanity, 645 Degree of proof, 645 Intoxication Defense or excuse, 645 Mode of proof, 646 Opinion as to degree, 647 Alibi Burden of proof, 647 Purpose, 647 Cross examination, 647 Threats of suicide by deceased, 647 Provocation Words and gestures, 648 Self defense Modern doctrine, 648 Purpose of the defense, 649 Apparent danger, 649 Actual danger, 649 Size and strength of deceased, 649 Belief of a reasonable person, 649 Good faith, 650 Accused aggressor, 650 Defense of habitation, 651 Doubt as to admissibility in favor of accused, 651 Burden of proof, 651 Reasonable doubt, 652 Weight and sufficiency, 652 Assault of enfeebled person, 652 Aiding and abetting, 653 HONESTY Reputation for, inadmissible to impeach, 695 Business transactions generally, 597 HORSES Diseases of Expert as to, 109 Where other horses diseased, 1185 Value of race horse, 108 Runaway horse, 1185 Frightening, 1185 Management Judicial notice, 754 HORSE RACING .ludicial notice, 758 HOSPITAL RECORDS Competencv. 653 HOSTILE WITNESS In general, 173 Leading questions, 792 HOSTILITY OF DYING DECLARANT, 175, 470 INDEX 1465 [references are to pages] HOTEL Innkeepers, 700 HOTEL REGISTER, 654 HUSBAND AND WIFE Dying decliiiatioiis of, 409 Abandonment of wife or cliildren, 2 Advancements, 75 Alienating affections, 91 Ante nuptial contracts, 113 Bigamy, 175 Criminal conversation, 3G3 Divorce, 446 Fraudulent conveyances, 580 Gaming Competency of husband as witness, 590 Gifts, 593 Infants, 700 Legitimacy, 777 Marriage, 827 Medical and surgical services, 836 Seduction, 1164 Agency of husband. 233, 655 Agency of wife, 233, 655 Ownership of property, 656 Family expense, 657 Transfer of chattels, 657 Admissions of husband, 657 Admissions of wife, 658 Competency of husband as witness In general, 658 Separate property of wife, 658 To recover money lost at gaming, 590 Bill to declare resulting trust. 659 Action for personal injury, 6."J9 Malpractice. 659 Bill for partition, 659, 1355 Where husband administrator, 660 Where husband interested in event of suit. 1366 Adverse party heir or personal representative, 660 Void marriage, 661 Divorced husband, 661 Competency of wife as witness Criminal action, 661, 1367 Where acting as agent, 661. 1366 Attesting witness to will. 662 Where sued for family expense. 663 Admissions and declarations of husband, 663, 1342 Action by or against husband. 663 Husband next friend, 664 Where marriage denied, 665 Divorced wife, 665 Bigamous wife. 665 Competency of widow as witness Admissions and transactions generally, 665, 1342, 1364 Disproving alleged admissions. 666 Claim against estate. 666, 1352 Ante nuptial contracts, 666 Delivery of deed, 666 Will contests, 667, 1361 Partition and resulting trust. 667 Action as administratrix. 668, 1353 Action by or against personal representative, 668 Concerning benefit certificate, 669 1466 INDEX [REFERENCES ARE TO PAGES] HUSBAND AND WIFE, (Continued) Abandonment of homestead, 669 Sec Witnesses. 13()4 HYPOTHETICAL QUESTIONS Right to ask, 669 Purpose, 669 Prior proof. 670 Inferences from circumstances, 670 Each question complete, 670 Recitation as to actual facts, 670 Part of facts, 670 Usurping functions of jury, 671 Opinions based on testimony heard or read, 671 Opinions based on hearsay, 672 Opinions based on personal knowledge, 072 Sniliciency of statement of facts recited, 672 Obscure question, 672 Objections to question, 672 Cross examination, 673 On inquiry as to vahie, 1264 Right to ask non expert, 1159 ICE Removal as waste, 1246 Opinion as to difficulty passing over on sidewalk, 530 IDENTITY I'roperty subject of larceny, 767 Provable by parol, 928 Misnamed corporation, 929 Mortgage debt assumed, 940 Engine causing fire, 548 Of action, 682 Persons Former jeopardy, parol proof, 568 Former conviction, 567 Former adjudication, 563 Leading questions proper as to, 773 / Parties in issue, to render testimony at former trial admissible, 5.'>7 INCOMPLETE WRITTEN AGREEMENT Parol evidence as to. '.)'20 INCONSISTENT STATEMENTS Impeachment, 687 INCORPORATION Parol nroof in criminal case, .)4.> INCRIMINATING QUESTIONS AND DOCUMENTS Immunitv, 648 . j o As to abortion, by woman not in presence of accused, 8 Production of incriminating documents, lOol INDEBTEDNESS Presumption as to written evidence, 10^1 Hearsay, 614 INDECENT ASSAULT Impeachment by reputation, 695 INDEPENDENT PAROL CONTRACTS, 920 INDICTMENT Cross examination as to, error, 5bb . - n i ,.,ri uin.dpr 792 Record of indictment and acquittal incompetent in libel and slandci, <92 Identity, 677 Presumption from same name, 10.il Witnesses names not indorsed on, competency, lo4U INDORSORS See post, negotiable instruments INDORSEMENTS ON NOTES To bar statute of limitations, 799 See pofit. negotiable instruments INDORSEMENT ON INDICTMENT Name of witness, 1340 INDUCING ANOTHER TO COMMIT SUICIDE, 1214 INEQUALITY OF DISTRIBUTION As affecting testamentary capacity, 1308 On question of undue influence, 1317 INFAMOUS CRIMES Conviction of as affecting credibility, 699 Petit larceny, 766 INFANCY Burden of proof Civil cases, 234 Criminal actions, 234 INFANTS Competency of as witnesses, -00 Burden of proving defense of infancy, -00, lUb>irden of proof, 822 Damages, 823 MALPRACTICE I'Lvpert and opinion, 525 Burden of proof, 239, 989 Action by wife Competency of husband as witness, 659 MANDAMUS r.urden of proof. 239 MANIPULATION OF LIMBS, 506, 508 MANUFACTURERS Custom and usage, 391 MANSLAUGHTER Burden of proof. 239, 652 Former conviction, 566 See Homicide, 620 MAPS, 939 MARK Signature to will. 1322 Identifying such signature, 603 MARKET PRICE Subject in general, 823 to 826 Judicial notice, 758 Proved bv newspaper, 863 MARKS AND BRANDS Identity, 680 Ownership, 904 MARRIAGE Subject in general, 827 to 836 Registers of births, deaths and marriages, 1116 Admissions and declarations. 44, 68 Proof of in adultery, 69 Bigamy, 175 Validity of, 176 Burden of proof, 239 As atl'ecting credibility of witnesses, 359 Criminal conversation Actual marriage must be shown, 362 Invalidating will Presum])tion testator had knowledge of, 1304 MARRIED WOMEN See Husband and Wife, 654 Witnesses. 1364 MASTER AND SERVANT Admissions and declarations, 51 Burden of proof Negligence, 239 INDEX 1487 [references are to pages] MASTER AND SERVANT (Continued) Promise to repair, 239 As to fellow servant, 239 Presumptions Due care by master, 1028 Promise to repair, 1053 Repairs after accident, 1125 Safer method, 1156 Work and services, 1369 See, Ante, Injurv to Person MASTER IN CHANCERY Presumptions, 1028 MASTER'S DEED As evidence of title, 1236 MASTER'S REPORT OF SALE, 939 MATRIMONIAL STATE Presumption of continuance, 831 MATTERS OF COMMON KNOWLEDGE Judicially noticed. 755 MATTERS OF SCIENCE AND ART Expert and opinion evidence, 512 MATTERS OF RECORD Not required to plead, 3 MATTERS NOT OF RECORD How may be proven, 1038 Certificate of clerk incompetent, 1083 MATURITY OF CROPS Judicial notice, 756 MAYHEM Subject in general, 836 MEANING OF WORDS AND PHRASES Parol, 926 Words and phrases Presumption as to use, 1368 Parol to explain, 1368 Ambiguity. 99 MEANS OF KNOWLEDGE Expert, 513 Credibility, 354 MECHANICAL TESTS, 507 MECHANICS Books on, 187 Demonstrative evidence, 417 Experiments, 506 Expert and opinion evidence. 379, 525 MEDICAL AND SURGICAL SERVICES Recovery as damages, 836 Action for by physician, 987 MEDICAL BOOKS, 187 MEETINGS Records of Highway commissioners, 1086 Town meetings, 1086 Park commissioners, 1089 MEMBERS OF FAMILY Pedigree, 973 Work and services, 1370 MEMORANDA To aid construction of will, 1303 To show advancements, 74 MEMORANDUM Best and secondary evidence, 167 Ancient documents Aid by memorandum, 104 1488 INDEX [references are to pages] MEMORANDUM I Continued) To take contract out of statute of frauds, 1119 Refreshing memory Made by witness himself, 838 Time of making, 838 Ma(ie by another, 838 Personal knowledge, 839 Correctness, 839 Right to use, 840 By books of account, 197, 843 Independent recollection, 840, 842 As independent evidence, 842 Copies of memorandum, 843 Riglit to inspection by counsel on cross examination, 367 MEMORY Refreshing See, ante, memorandum See, post, refreshing memory MENTAL AND PHYSICAL STATES Pain and suffering Hearsay as to ailments before injury, 611 Appearance as to, by non expert, 529 Complaint by party, 844 Witnesses Right to compel giving testimony, 854 Non experts. 854 Weight of non expert testimony, 855 Cause of injury, 844, 845 Expert and opinion evidence, 848 iv Condition prior and subsequent to injury, 846, 847 Absence of complaint, 847 i : Expert and opinion evidence Cause of injury, 848 As to commission of crime, 849 Basis of expert testimony, 851 Objective symptoms, 851 Subjective symptoms, 852 Self serving statements of injured party, 852 MENTAL CAPACITY Infants as witnesses, 700 Sanity and insanity, 1156 Mental and physical states, 844 Expert and opinion, 530 Wills. 1305 MENTALLY DEFICIENT WITNESSES, 1339 MERCANTILE AGENCY Admissions to as showing fraud, 577 MERCHANTS Custom and usage, 392 Experts as to business transactions, 518 MESSAGES Telegrams, 1224 Telephone conversations, 1226 MESSENGER'S STATEMENTS HEARSAY, 856 MIND Opinion as to another's intention, 524 MINE ROYALTIES, 1186 MINERALS Removal as Avaste, 1246 MINERS AS EXPERTS, 527 MINES AND MINING Custom and usage, 390 Expert and opinion, 527 I INDEX 1489 [references are to pages] MINES AND MINING (Continued) Habits, 600 Wages, earning capacity and domestic relations, 1279 ]\Tine records and reports, 1090 MINORS Stipulation not binding upon. 1206 MINUTES OF CLERK OF COURT Duty of clerk. 1100 MINUTES OF JUDGE Not recorded. 73S MISCONDUCT OF JURORS New trial, 863 View by iury, 1270 MISDEMEANORS Former jeopardy, 568 Conviction of as affecting credibility, 566 Incapacity of infant to commit, 701 Depositions may be taken, 975 MISNOMER As to party to contract, 929 MISREPRESENTATION By infant, of age, 701 Reliance upon False pretenses, 541 Fraud, 578 Fraud and deceit. 579 MISTAKE Reformation of instruments, 1110 Building contracts, 215 Cancellation of instrument, 255 Parol, 923 As to name Parol proof of, 929 In deed Parol proof of, 410 MITIGATION OF DAMAGES See ante, damages MODELS Experiments, 507 Demonstrative evidence, 417 MONEY Larceny Identity. 767 " Value, 771 Tender, 1227 MONEY COUNTS A.ssumpsit, 131 Set off and counterclaim, 1176 Money had and received, 857 Money paid, 858 Money lent. 859 MONEY ORDERS Hearsay, 613 As proof of support of mother, 1278 MONUMENTS, 1216, 203 MORAL CHARACTER As nffectinir testamentary cijiacity. 1310 MORTALITY TABLES, 796 MORTGAGOR AND MORTGAGEE Admissions and declarations Contemporaneous Avith execution, 56 Subsequent to execution. 56 As against person claiming through mortgagor. 56 1490 INDEX [references are to pages] MORTGAGOR AND MORTGAGEE (t nntiiiued) *''''^'''^ '^"-^ As a<;aiiist subsequent iiuuinbrancers, 56 To show acquiescence in sale, 57 Mortiiagor's intention, 57 Attachment against mortgagor, 57 MORTGAGES I'arol In general. 939 Priority, 940 Third parties, 940 Identity of property, 940 Fraud, "940 Mortgage debt assumed, 940 Deed as mortgage, 411 Presumptions, 1029 Best and secondary evidence, 169 Admissions and declarations. 57 Exceeding debt Evidence of fraudulent conveyance, 584 Subject matter of chattel mortcaiie, 680, 932 MOTION TO SET ASIDE DEFAULT, 412 MOTION TO STRIKE OUT EVIDENCE, 1207, 1068 MOTIVES Subject in general. 859 to 861 On issue of genuineness of handwriting, 607 MUNICIPAL CORPORATIONS Dedication. 402 Abandonment of streets, 1 Eminent domain, 483 Ordinances, 892 Officers, 886 Quo warranto, 1050 Records Matters not of record, 1083 Voluminous records, 1084 Best evidence, 1087 Parol evidence, 1087 Amendment, 1088 Copy original evidence, 1088 Sidewalks, 1179 Penalty for violation of ordinance, 976 Judicial notice. 743 MUNICIPAL ORDERS Warranty, 1281 MURDER Accessories, 17 See Homicide, 620 MUTILATION Wills, 1328 Book of account, 197 Presumed testator mutilnted book, 74 MUTUAL BENEFIT SOCIETY Admissions and declarations, 62 See Insurance, 711 N NAMES Judicial notice, 758 Mistakes in name of party to contract, 929 Abbreviations, 5 INDEX 1491 [references are to pages] NAMES (Continued) Initials, 674 No presumption of sex from use of initials, 1001 Middle initial or name not material, G74 Judicial notice Equivalents and contractions, 673 Nickname, 676 Going under alias, 550 Same name Petitioner and voter, 674 Father and son, 674 Grantee and former owner, 674 Former conviction of witness, 1021 On engine causing fire. 548 On wagon, presumption, 1032 Owner of stolen property, 677 Of deceased, prosecution for homicide, 626 NAMING CHILD Bastardv. 151 NARRATION Not part of res gestae, 1138 When hearsay, 611 NATURAL CONSEQUENCES Presumption of intent, 1023 Same as to homicide, 621 NATURAL EVIDENCE Demonstrative evidence, 416 View by jury, 1268 NATURAL LAWS Judicial notice of, 759 NATURALIZATION Citizenship, 271 NAVIGABILITY Waters and watercourses, 1288, 1289 NECESSARIES Opinion as to, 286 Of infant Not positively defined, 702 Furnishing to infant, 702, 908 Furnishing to wife, 656 NECESSITY Opinion testimony, 512 NEEDY CIRCUMSTANCES Of creditor, 968 NEGATIVE See Positive and Negative. 994 Negative in issue, 861 NEGATIVE IN ISSUE Burden of proof, 240 Subject in general, 861 NEGLIGENCE Presumptions, 1029, 1030 Burden of proof, 240 Vision and hearing, 291 Attempts and efforts, 517 Observation and exercise of senses by witnesses, 528 Space and distance, 531 Not established by proof of safer method. 1156 Admissions and declarations, 51 Declarations of agent, 1133 Conclusions of witnesses as to due care, 287 Relating to personal injuries generally, 288 1^92 INDEX [REFERENCES ARE TO PAGES] NEGLIGENCE (Continued) Expert and opinion evidence As to due care, 5^2 Danger, 522 Duties of servant, 522 ,,.,,. ^ , _„_ ]\lechanics, machinery and building trades, 525 Mines and mining, 527 Railroads, 529 Sidewalks, 530 Attorneys, 147 Injury to person of infant, 701 Liability of infants for torts. 702 Customary method of doing work. 384. 388 Mere happening of accident, 1002 Instinct of self preservation Love of life, 1027 Weight and sufficiency of, 1291 Ordinances, 892 Habits, 599 . Similar facts and transactions, 118^ Repairs after accident, 1125 Promise to repair, 1053 Pecuniary circumstances, 969 Rules in actions for negligence, 1154 Hes gestce, 1132 Admissions and declarations, 51, 1141 Expert and opinion. 509 IMedical and surgical services, 836 Sidewalks, 1179 Experiments, 506 Physical examination, 985 Bailment, 149 Coroner's inquest, 334 Explosives, 534 Ownership. 901 Exhibition of injury, 505 Wages, earning capacity and domestic relations, 1273 Fires by locomotives, 544 Photographs, 981 Fire arms, 544 Release, 1118 Accident, 18 Custom and usage, 384, 387 Life tables, 796 Representative capacity, 1132 Infants, 701 Safer method, 1156 Speed, 1191 Mental and physical states, 844 Intoxication, 734 Witnesses, 1347, 1353 NEGOTIABLE INSTRUMENTS Accord and satisfaction Agreement to accept less sum. 22 Action by surety Competency of note as to amount paid, 859 Admissions and declarations Of maker that he had paid note, 37 Of one partner to show same partnership debt, 46 ^-, -.01 Of payee or holder of note as against subsequent purchaser, CI, 131 As affecting alterations, 61 To impeach assignment, 61 Of prior holder, 131 INDEX 1493 [references are to pages] NEGOTIABLE INSTRUMENTS (Contimioil) As evidence of advanccnnent, 74 Atlidavit of non est fiu'tum not evidence, 83 Alterations and erasures Subject in general, 93 Presumptions, 1003 Assignment Bad faith, burden of proof, 220, 222 Declaration of holder prior to, 131, 59, 43 Burden of proof, 241 Check Payment by bank, 222 Acceptance' as compromise and settlement, 281 Check stubs As res gestce, 1136 Competency of witnesses Wife of maker in action against surety, GGl Maker, as against estate of deceased payee, 1350 Consideration Impeachment, 921 Presumed, 1008 Illegal, burden of proof, 225 Want or failure, burden of proof, 221 Date Of assignment, 130, 395 Execution, 395 Indorsement, 395 Declarations of maker Against surety, hearsay, 610 Declaration of prior holder, 131, 59, 43 Delivery As pledge, defense to collateral note, 993 Conditional, 416 Plea of non est factum, 419 Parol as to. 922 Denial of execution In general, 419 Authority of corporate officers, 420 Alteration, 421 Foreclosure of mortgage, 421 Duress In general, 461 Financial circumstances, 859 Forgery Proof of financial circumstances, 970 Fraud by parol, 921 Gambling contracts, 585 Garnishment of maker, 232 Gifts, 594 Good faith, 597 Handwriting, 602 Indorsement Date, presumption, 1031 Infants, 704 Interest Defined. 730 Presumptions. 730 Laws of sister state, 731 Abbreviations, 753 Joint liability Eff"ect of verified plea, 237 Knowledge of contents from signing Presumption, 1025 1494 INDEX [references are to pages] NEGOTIABLE INSTRUMENTS (Continued) Law merchant Judicial notice, 758 Limitations, In general, 797 Burden of proof, 238 Lost instruments Ift general, 801 Checks, 804 Promissory notes, 810 Parol, 940, 941 Delivery, 922 Usury, 922 Capacity in which person signs, 929 Actual date of assignment, 930 Contemporaneous agreement with delivery, 940 Contract of indorsor, 926 Motive As evidence of genuineness, 8G0 Non joinder, 866 Ownership Notes, presumed from possession, 902, 1032 Draft, 903 Mortgage, 903 Certificate of deposit, 903 Partnership transaction, 959 Partnership obligation, 221 Payment By giving note, presumption. 964, 1034 May be shown under general issue, 965 Burden of proof, 965 Parol, 965 Indorsements and credits, 966, 800 When limitations begin to run, 799 Presumption from giving check, 963 Habits to aid presumption, 601 Books of account to explain payment, 194 Books of bank not party, 196 Photographs, 983 Pleading Admissibility under common counts, 135 Premature action, pleading, 137 Failure and want of consideration, 137 Defense of breach of warranty, 138 Tender, 139 Possession As evidence of payment, 963 As evidence of ownership, 997 By one of two joint payees, 955 Presumptions, 1031 Proof of execution on foreclosure, 420 Rate of exchange Judicial notice not taken of, 756 Regularity of issue, 1031 Secondary evidence, 169 Settlement By giving note, 283 Acceptance of check, 281 Signature Knowledge, 1181 Stamp act, 1195 Tender By check, 1228 INDEX 1495 [references are to pages] NEGOTIABLE INSTRUMENTS (Continued) Usury Burden of proof, 249 In general, 1260 Face value not evidence of actual value in action for physical loss, 249 NEIGHBORS Declarations as to pedigree, 973 As impeaching witnesses, 697 NEW PROMISE, 797 NEWSPAPERS Libelous article Best evidence, 788 Market price, 863 Publishing no notice of conveyance, 863 Service by publication, IITG NEW TRIAL Impeaching verdict, 863 Newly discovered evidence, 865 Counter affidavits, 866 Cumulative evidence, 381 NEXT FRIEND Impeachment, 688 As affecting competency as witnesses, 1349 NICKNAME Identity of devisee, 1302 NIL DEBIT Accord and satisfaction, 23 NOISE Eminent domain, 496 Expert, 528 NOLLE PROSEQUI Accomplice, 19 NOMINAL PARTY Admissions and declarations, 41 Competency as witness, 76, 1344, 1348 NON ACCESS Legitimacy, 778 NON EST FACTUM Accord and satisfaction, 22 Admissions and declarations, 63 Denial of execiition, 419 NON EXPERT WITNESS Qualification question for court, 510 See Expert and Opinion, 509 Conclusions of witnesses, 285 Wills Qualification, 1310 Weight and sufficiency of opinions, 1315 NON JOINDER, 866 ' V NON OCCURRENCE Positive and negative proof. 995 NON PRODUCTION OF EVIDENCE See Refusal and Failure to Produce Evidence, 1112 Production of documents, 1051 Best and Secondary, 156 Absent witness, 8 NORTHHAMPTON LIFE TABLES, 796 NOTARIES PUBLIC Presumptions, 1031 Right to take deposition, 422 Burden of proof, 241 Foreign notaries Right to administer oath, 751 liU6 INDEX [REFERENCES ARE TO PAGES] NOTARIES PUBLIC (Contimud) Higlit to take arkuowledgmcnts, 1031 Within the county, 82 Record of notary as to protest, 1090 NOTE AS DYING DECLARATION, 460 NOTES AND BONDS Admissions and dechirations In general, 61 As to time of apparent alteration, 61 Impeachment of assignment, 61 To show ownership, 61 Declarations relating to notes not in issue, 61 See, ante, negotiable instruments NOT GUILTY IN CRIMINAL ACTION All defenses admissible under, 368 NOTICE Notice to city Of injury, 1181 Service, 1174 Customs, 764, 385 Of taking depositions, 424 Forcible entry and detainer T^ Waiver, 553 Service, 553 Presumptions, 1031 Manifestation of surprise, 765 NOTICE TO PRODUCE DOCUMENTS To admit secondary evidence, 159 'i ancient document, 103 OMISSIONS Parol evidence to supply those in documents In records, 943 Documents, in general, 917 INDEX 14UD [references are to pages] OPENING STATEMENT Attorneys, 148 OPERATION OF RAILROADS Judicial notice, 7.')9 Expert and opinion, 520 OPINIONS AS ADMISSIONS, 694 OPINION EVIDENCE As to mental and physical states, 848 Fixed belief of dying declarant, 465 Fright of horse, 290 Temperature, 287 Appearance of person, 523 Appearance of animals, 516 Reputation, 696 Intoxication, 734 Identity, 695 Speed, 1191 Misrepresentations, 578 Values, 1264 On question of sanity, 1159 Concerning testamentary capacity, 1315 As to handwriting, 604 To prove bigamy, 177 Adultery, 71 Bastardy, 154 See expert and opinion, 509 Mental and physical states, 844 Legal conclusions, 775 Wills Construction, 1303 Testamentary capacity, 1310 Undue influence, 1319 Conclusions of witnesses, 285 Title, 1238 Sanity and insanity, 1156 Malpractice, 989 Time of opinion, 511 OPPORTUNITY As affecting credibility, 354 As to weight of positive and negative evidence, 996 OPTIONS, 941 ORAL TESTIMONY See parol interpretation of writings, 913 ORDER OF PROOF Abatement, 4 Determination of order, 889 Evidence depending upon preliminary proof, 889 After argument of counsel, 891 Anticipating defense, 891 Documentary evidence, 891 As to cross examination, 892 Default, 412 Offer of evidence, 884 Rebuttal, 1067 Recalling witness, 1070 Impeachment, 685 Cross examination, 365 ORDINANCES Warranty Article warranted to comply with, 1285 Burden of proof, 242 Judicial notice, 743 Motives in passing, 859 1500 INDEX [references are to pages] ORDINANCES (Continuod) \ iolatioii Degree of proof, 976 When prima facie negligence, 1192, 1194 Sidewalks Admissibility to show complaint to proper parties as to sidewalks, 1180 Validity Presumption, 892 Not admissible in homicide to show duties of officer, 636 Book and pamphlets, 894 Records, 895 Copies, 895 As determined by pleadings, 895 Different ordinances covering same subject matter, 897 Presumption ordinance still in force, 893 Not necessary to show latest revision, 893 Weight and sufficiency Ordinance books, 900 In actions of injury generally From defective sidewalk, 898 From careless driving, 898 Street railways, 899 Railroads. 899 Tanks and boilers, 900 Presumption of negligence from violation, 1032 Of city in foreign state. 896 ORGANIZED FIRE DEPARTMENT Judicial notice, 744 ORIGINAL ENTRIES Books of account. 188 ORIGINAL EVIDENCE Disparagement of title by party in possession is, 1239 Copy of city record is, 1088 Disparagement of title, 42, 1239 Admissions in general 34, 40 ORIGINAL TELEGRAM, 1225 OSTEOPATH As expert witness, 854 OTHER ACCIDENT See accident, 18 Similar facts and transactions, 1183 Sidewalk injuries, 1180 OTHER OFFENSES Separate and similar offenses, 1168 OUSTER, 901 OWNERSHIP Where matter of inducement, 901 Presumption from jiossession, 902 Names on railway cars and engines, 903 Marks and brands, 904 Wills, 904 Direct evidence, 905 Grantor's declarations, 905 As to ownership of real estate, see title, 1235 Declarations of party in possession of personal property, 58 Acts of party claiming to own, 999 OWN witness' Party not allowed to impeach, 686 May refresh memory if surprised by, 686 INDEX 1501 PAIN AND INJURY -Judicial iiDticc, 758 PAIN AND SUFFERING Judicial notice, 758 Appearance as to, 529 Hearsay as to ailments before injury, 611 Exclamations as part of res (jc.stiV In general, 1153 Mental and physical states, 846 Opinion, non-expi'rt, 529 PAMPHLET Fraud and deceit, 579 Ordinances, 894, 893 As proof of warranty, 1284 PAPER MONEY Expert witness, 7G8 PAPERS AND FILES Are part of judicial record, 1102 Admissibility of originals from another county, 1101 Unauthenticated files, sister state, 561 To show former adjudication, 565 PARAMOUR As furnishing a motive, 625 PARDON As aflfecting disability of witness, 906 PARENT AND CHILD Custody of child, 907 Emancipation, 907 Liability for torts, 908 Liability for necessaries, 908 Compensation for services, 909 Express contract, 910 Implied contract, 910 Voluntary conveyances Parent to child, 910 Child to parent, 912 Married woman cannot bastardize child, 779 See infants. 700 Gifts, 592 PARISH REGISTER Admissibilitv. 827 PAROL INTERPRETATION OF WRITINGS Extrinsic rendering uncertain. 914 Conversations and negotiations, 914 Recitals not part of contract, 915 Date, 916 Existence of written contract, 916 Different writings, 916 Part in writing, 917 Unsigned writing, 917 Contemporaneous agreements, 917 Delivered instruments, 917 Reservations. 917 Prior contract, 918 Intention, 918 As to strangers, 918 Subsequent agreements. 919 Separate parol agreements. 920 Contract not intended binding, 921 Fraud and deceit, 921 Consideration, 921 Delivery. 922 Usury. "922 Illegal agreements, 923 1502 INDEX [references are to pages] PAROL INTERPRETATION OF WRITINGS (Continued) Mistake, !);•:! Cunc'i'ilation of instruments, 923 Custom and usage, 924, 386 Cliaracter of transaction, 924 Construction by parties, 925 Surrounding circumstances, 925 Words and terms, 926 Identity of subject matter, 928 Condition of subject matter, 929 Identity of person, 929 Capacity in Avhicli persons act, 929 .Interpretation of paitieular writings Advancements, 930 Architect's certificate, 930 Arbitration and award, 930 Assessor's schedules, 930 Assignment, 930 Bills of sale, 931 Bills of lading, 931 Bonds, 931 Building contracts, 932 Certificate of deposit, 932 Certificate of publication, 932 Certificate of sale, 932 Certificate of teacher, 932 Certificate of taxes, 932 Chattel mortgage, 932 Compromise and settlement, 933 Contracts generally, 933 Deeds, 934, 935 Declaration of trust, 936 Diagrams, 936 ]']mployment contract, 936 Insurance policy, 937 Inventory, 937 Judgments, 937 Lease, 938 Letters, 939 License, 939 Maps, 939 Master's report of sale, 939 Messages, 939 Mortgages, 939, 940 Negotiable instruments, 940 Options, 941 Ordinances, 941 Partnership contracts. 941 Passenger, railway ticket, 942 Plats, 942 Pledge, 942 Power of attorney, 942 Principal and surety, 942 Receipts, 942 Records, 943, 944 lies adjudicata, order of court, 944 Return of process. 945 Rules, 945 Sales contracts, 945, 946 Settlement, 947 Statutes, 947 Subpoena, 947 Subscriptions, 947 Summons, 948 INDEX 150:^ [REFEREXCEK are to PAOESl PAROL INTERPRETATION OF WRITINGS (Continued) Trusts. 94 S Voluntary settlements, 948 ^Y:lrrantv. 948 Wills. ',)4S. 949, 950, 951 """"^UZif^^^^nL, .,ot provable by parol wHhc.t notU. to produce, or showing loss or destruction, IGO To prove independent facts Payment, though receipt given. 9G5 ^ Matters in pais, concerning courts, 170 Government license, 115 Existence and identity of record 1081 Where written evidence wrongtully withlieW, 15/ Other insurance, 723 Fact of sending telegram. 1225 Rescission of contract in general, 1076 Reformation of instruments m general, 1110, 1111 To show instruments security Bill of sale as mortgage, 931 , , , .-,. Security may be shown to become absolute, 411 Deed as mortgage, 411 . . ^ . .r-. Deed as mortgage no defense in ejectment, 4<4 Ambiguity in general, 97 Parol as to wills, 1299 Mistake of fact, 1110 Mistake of law, 1110 Consideration, 303 Delivery, 415 Dates of writings, 395 Priority of various writings, 395 That contract never had existence, 415 Assent to contract of carrier, 128 Contract of telegraph company 129 Conveyances as voluntary settlement, 1^9 Parol' warranty accompanying bill ot sale, 1^S5 Sale by sample, 1282 , ,n-- o Subsequent contract as rescission, Wa. ^ Abandonment of contract, 11S9, 2 Acceptance of contract, 1189 , . . ,. .- „ .04 To show contents of exhibits beyond jurisdiction. 434 To prove alteration of instrument. 96 To complete and aid trust, 1257, 1258 j, i9f>n To explkin part performance under Statu e of Frauds, 1200 Rebutting presumption of adoption of seal, 1163 Administrator Appointment of, 1132 Abbreviations Explanation, 5 Abstracts of title . , Aid by parol, 15 Account stated Verbal admissions, 34 Acknowledgment Amendment by parol, 29 Advancements No part by parol, 75 r j ^ ■r^ Parol incompetent as to intention of donor, 74 Adverse possession ^ Transfer provable by parol. iJ ^^ Family record not provable by parol, 85 1504 INDEX [kefekences are to pages] PAROL IN GENERAL (Continued) Agency Parol to explain written appointment, 89 Alterations and erasures Parol admissible, 96 Ambiguity Parol admissible, 97 Ancient documents Parol in aid of, 104 Ante-nuptial agretMuent Parol inadmissible, 114 Appeal bond Impeachment by parol, 119 Award Parol incompetent to enlarge, 121 Scope and effect, 930 Parol incompetent to identify subject matter, 682 Assent to voluntary conveyances Parol admissible as to condition of property, 130 Document beyond jurisdiction, result of examination, 156 Voluminous documents, 156 Whether records or writings show certain fact, 157 Documents wrongfully withheld, 157 Documents lost or destroyed, 158 Levy by officer, 170 Ministerial acts of officer, 170 Amount of appeal bond, 170 Lost deposition, where witness alive, 170 Bill of lading, contradiction by carrier, 180 Approval of bond, 185 Book account, contents of Inadmissible, 197 Explanation of signs in book account, 201 Boundaries Parol competent to identify, 202 To show general reputation, 203 Parol agreement as to. 203 Cancellation of instruments, 255 Certificate of naturalization Identity of holder, parol competent, 272 Impeachment incompetent, 272 Cloud on title Parol to show, 276 C. 0. D. Parol competent to explain, 279 Compromise and settlement Parol to show non compliance with conditions, 282 Consideration Want of, 303 Ballots For whom cast, 318 Confession before coroner When not reduced to writing, 337 Corporation Identity of as party to contract, 340 No delivery of corporate stock. 340 As to existence of corporation, 343 WHiere corporation fails to make record, 346 Date of judgment, 393 Parol admissible to show execution issued before, 393 Filing of documents, 394 Date of contract, 395 INDEX [references are to pages] PAROL IN GENERAL (Continued) IJi'difatiun Parol admissible to show, 403 Deed Parol as to time of filing, 410 Ambiouity in description, 410 Deed as mortgage, 411 Becoming absolute by parol, 411 Delivery Deed, 4l4 Contracts, conditional, 415 Bond, 416 Negotiable instruments, 416 Depositions Parol competent where lost, 171 Destruction of evidence Party destroying cannot oflVr parol, 439 Dying declarations Where reduced to writing, 4G8 Location of lot, 474 Fixtures Peservation by parol inadmissible, 550 Foreign judgments Parol as to jurisdiction, 555 Foreign law Statutes, 560 Common law, 560 Former adjudication Parol to show issues raised, 564 Not where shown by record, 564 Parties to former action, 677 Same in criminal cases, 677 Former conviction Criminal trials, 566 Civil actions, 567 Former jeopardy Parol as to identity of persons in crime, 568 Former testimony Parol competent, 573 Fraud Where contract in writing, parol competent. 575 Fraudulent conveyances, 582 Guardian and ward Recei])t of ward, parol competent. 599 Homestead Parol competent to show premises, 619 Government license Parol to show, 115 Devise When parol competent to identify, 678 Personal property Subject matter of contract, 680 Where subject of sale, 680 Subject of mortgage, 680 Property insured, 681 Subject of larceny, 681 Contents of variant statements on impeachment. 691 Insurance Parol as to measure of damages on benefit policy, 713 To connect beneficiary with contract. 715 Accident policy, parol to vary, 717 Lost policy, parol to show contents, 719 Fire policy, parol to vary, 723 1505 1506 INDEX [references are to pages] PAROL IN GENERAL (Continued) Waiver, 723 Other insurance, 723 Incompetent to contradict receipt, 724 Justices docket Parol to impeacli service, 762 Parol to show alteration or correction of record, 762 To show wrong entry of judgment, 702 Legislative acts and journals Parol to identify, 776 Parol to show adoption, 777 Letters Parol as to contents where not lost, 784 Parol to explain, 784, 785 Parol to supplement, 786 Libel and slander Explanation of intent, 796 Limitations New promise where contract in writing, 798 To pay judgment, 799 Declarations of party in possession, 57 Lost instruments Substance sufficient, 803 Must be proof of execution, 804 Malicious prosecution Termination of prosecution, 822 Marriage Record evidence not required, 827 Memorandum Contents of, 842 Motive In passing ordinance, parol incompetent, 860 Notary public Of sister state, authority to administer oath, 82 Ordinances Adoption cannot be shown by parol, 876 Objections Must be specific, 876 Process Parol admissible to amend, 945 Partition Parol partition, efTect, 954 Partnership Parol by strangers, where written articles exist, 956 For purpose of trading in land, 958 Patents, for land ImpeaclimeTit by parol. 962 Patent ambiguity Contracts for conveyance, 678 Payment Parol competent though receipt given, 965 Pledge Parol evidence as to, 993 Principal and surety Signing on condition. 1045 That contract was conditional, 1045 As surety. 1045 To identify party to be indemnified, 1045 Ratification Of sealed instrument, 1064 Receipts Contradiction by parol, 1071 ' INDEX 1507 [references are to pages] PAROL IN GENERAL (Continupd) J5astardy settlement, inipeaclimeiit, 155 To joint tort feasor, 21 Rescission of contracts, 1077 Recognizance Parol as to identity of principal, 1079 Approval by sheriff. 1079 Consent to conditions, 1079 Payment of clerk's fees Parol competent, 1082 Lost or destroyed records, 1082 Matters not of record, 1083 Writings must be in court, 1083 Records of county board, 1084 Higliway commissioners records Cannot be varied by parol, 1097 City and village record's Parol incompetent to enlarge or contradict, 1087 Where record failed to be made, competent, 1088 Taxes Payment of may be proven by parol, 1088 Records of boards of education Parol as to, 1089 Records of board of local improvements, 1089 Drainage records, 1090 Private corporations Parol as to records, 1091 Recording of deed, 1096 Aid of certified copy, 1099 Orders of courts and defects, 1101 Papers and files of judicial records, 1101 Amending judicial records, 1103 Contradiction of judicial records, 1103 Return of proees Contradiction, 1105 Dockets and judgments of justices of peace, 1105 Transcript of record, 1110 Reformation of instruments, 1111 Release of contract, 1118 Consent to sale of property under chattel mortgage, 1128 Justification of officer in replevin, 1129 Representative capacity, 1132 Reservations In deed, 935 Rules of court, 1153 Rules in actions for negligence, 1155 Rumors As to death from absence, 398 Service by publication Parol to aid, 1176 Parol to impeach decree showing, 1176 Specific performance Parol to aid description of premises, 1189 Acceptance may be shown by parol, 1189 As to title, 1190 Statutes Act essential to validity, 1196 Contradiction record of secretary of state, 1196 Identifying legislative journals, 1196 Signing of document By another, parol to show, 1201 Stipulations Parol suflficipnt. 1205 1508 INDEX [refekences are to pages] PAROL IN GENERAL (Continued) bubscription tontiacts I'arol incompetent to vary, 1212 Monuments Location, 1216 Taxes Payment, 1221 Tax deeds To aid affidavit, 1217 Tax reeeipts Parol competent to supplement, 1223 Telegrams Contents, parol incompetent, 1225 Fact of sending, parol competent, 1225 Title to real estate Parol incompetent to show, 1238 Declarations as estoppel, 57 Trusts Resulting, not defeated by parol agreement, 1252 Parol competent to show, 1256 Express, parol incompetent to create, 1256 Parol competent to aid, 1257 Usury Parol competent to show, 1261 Waiver May be shown by parol, 1280 Warranty Where not contained in written contract, 1284 Wills Ambiguity, 1301 Oral testimony as to testator not holding title, 1307 Revocation and destruction of will, 1328 Words and phrases in written instruments Parol competent to explain, 1368 PARTIALITY Cross examination of witnesses as to, 377 Credibility, 358 Bias and "hostility, 173 PARTIES AND PERSONS INTERESTED AS WITNESSES Credibility Parties of record, 951 Criminal action, 952 Other persons interested, 952 Proof of interest On direct examination, 953 Cross examination, 952 PARTICULAR ACTS Homicide Character of accused, 631 To impeach witness, 264, 696 To show incompetency of employe Negligent acts, 1183 Habit's as to negligence, 600 Habits as to use of intoxicating liquors, 600 To show character of animals, 107, 1185 To diminish damages in action for assault, 126 • PARTICULAR TRAIT Reputation to be confined to, 264 Of servant, 601 PARTITION Judicial partition, 953 Parol partition, 954 Solicitor's fees, 954 INDEX 1509 [references are to pages] PARTNERS ('()iiilH't(>ncy as witnesses as to transactions with deceased partner, 1349 PARTNERSHIP Burden of proof, 336 Articles of, 168 Existence of Presumptions, 955 Burden of proof, 955 Admissions and declarations of partners, 956 Articles of partnership, 957 Proof by stranger where articles in writing, 941 Land trading ]iartnership. 941 Contract firm obligation, 941 Denial of partnership under general issue, 958 Weight and sufficiency, 958 Liability of parties, 959 Dissolution Evidence to show notice, 960 Partnership books, 961 Presumption as to partners' interest, 961 Presumption as to compensation, 961 Admissions and declarations, 45, 46 PART PAYMENT Application, 964 Indorsements and credits on notes, 966 As affecting limitations, 800 By strangers, Snn PART PERFORMANCE Taking contract out of Statute of Frauds, 1200 PARTIES TO CONTRACT Admissions and declarations, 60 PARTIES IN INTEREST Admissions and declarations, 41 PARTY Existence of party to suit, 143 Admissions of party Nominal party, 41 Parties to record, 40 Third parties, 41 Privies, 59 Substantial identity as to former testimony, 571 Parol identity of parties to contract. 929 Construction of contract by parties, 925 Proof of interest of party, 952 Leading questions to adverse party, 772 Competency of nominal party as witness, 76, 1344, 1348 Person whose name forged, not necessary as witness, 563 Refusal to testify, personal privilege Immunity, 0R3 No intendment in civil cases, 1114 Right to call adverse party, 76 Not to be excluded from court room. 504 When privileges of imnumity waived. 684 Impeachment of own witness by party, 686 Parties and persons interested as witnesses, 951 PARTY IN POSSESSION Admissions and declarations of, 58 PARTY WALL Presumptions, 1033 PASS BOOK Of merchant, 189 Bank book, 195 1510 INDEX [references are to pages] PASSENGER Relation Ticket need not be produced, 942 Pre.snnii)tion of negligence, injury by carrier, 1030 Injury to ])a.ssengpr Burden of proof, 240 Custom and usage, 388, 389 Behavior of, as evidence of danger, 1139 PATENTS Evidence of title, 961 Entry book, 962 Eecordation, 962 Impeachment by parol, 962 Scliool patents. '962 PATENT AMBIGUITY Deeds, 100 Contracts for conveyance, 928 ^^■ritten contracts in general, 914 PATERNITY Opinion incompetent, 529 Profcrt of child improper, 151 PAUPER Residence of, 323 Admissions and declarations, 61 Domicile, 452 PAVEMENT Judicial notice, 745 PAYMENT Burden of proof, 243, 965 Presumptions Possession of instrument, 963 From giving note. 964 From giving check, 963 Application, 964 Recitals in deed. 964 Admissibility under general issue, 965 May be shown by parol, 965 Receipt explainable by parol, 966 Habits of deceased person, 967 Weight of receipt, 968 Degree of proof, 968 Indorsement of credits, 968, 799, 800 8ee onie, part payment PECUNIARY CIRCUMSTANCES, 969 to 972 PECUNIARY CONDITION To show motive or reason, 970 PECUNIARY INTEREST Declarations of deceased against, 42 As to value, 1264 Rendering witness incompetent as to transactions with deceased, 1344 PEDIGREE Defined, 972 Presumptions and burden of proof, 972 Hearsay evidence in general, 973 Declarations, 973 Conclusions of witness, 616 Decree in partition, 616 Petition in probate, 617 Legitimacy, 777 Intestacy,' 734 Heir defined, 1341 PENALTIES Presumption, 1034 INDEX 1511 [references are to pages] PENALTIES (Continued) Burden of proof, 243 In fjoneral, 974 PERFORMANCE See specific performance, 1189 Statute of frauds, 1200 Duty of officer Presumption, 1031 In action for negligence, 1029 PERJURY Materiality of testimony, 976 Elements of offense, 977 Kegularity in appointment of officer, 977 Testimony on which perjury assigned, 979 Necessity of two witnesses, 979 Subornation of perjury, 980 Presumptions, 1034 PERSON Inspection of To determine age, 86 Physical examination, 985 Identity of. 673 PERSONAL INJURY See ante, injury to person See ante, negligence PERSONAL PROPERTY Burden of proof Ownership, 242 Presumption from possession, 902 Owner of How affected by statements of former holder. 244 Declarations as to ownership by party in possession, 58 Party may prove his own acts. 999 " See also, ante, negotiable instruments Identity of property sold by description Burden of proof, 233 Parol as to bill of sale, 931 Parol as to chattel mortgage, 932 Larceny, 767 As payment Presumption as to delivery, 415 Specific performance. 1191 PERSONAL REPRESENTATIVE Representative capacity When appointment not in issue, 1132 Parol incompetent to show, 1132 As witness For or against estate of deceased person, 1346 PETIT JURORS See ante, jurors PHOTOGRAPHS Stereoscopic views. 1204 Legitimate evidence, 981 Jury may take to jury room. 981 Scene of accident, 981 Not admissible where arranged by party, 981 Preliminary proof, 982 Documents, 983 Real property, 983 Machinery, 9*84 Persons, 984 Of injury, 984 To shoAV injury. X-ray, 984, 985 1512 INDEX [REFERENCES ARE TO PAGES] PHOTOGRAPHS (Continued) Copy of writing On issue of genuineness, fa07 PHRASES ^Meaning of, 1268 Abbreviations Judicial notice, 753 Custom and usage, 386 Parol, 926 Presumptions Technical words, 1042 PHYSICAL CONDITION Mental and physical states, 844 PHYSICAL EXAMINATION In general, 985 to 987 Exhibition of iniiiry, 505 PHYSICAL EXHIBITS Exhibition of injury, 505 Demonstrative evidence, 416 Physical examination, 985 View by jury, 1268 Diagrams, 491 Plats, 990 PHYSICIANS AND SURGEONS Action for services, 987 Right to practice Criminal prosecutions, 989 Malpractice, 989 Right to compel giving testimony, 854 Op'inion as to mental and physical states, 848 As to commission of crime, 849 Objective symptoms. 851 Subjective symptoms, 852 Weight of opinion as to mental capacity, 855 Assent to services. 130 Osteopath a's expert, 584 PHYSICS Judicial notice, 759 PISTOL Firing of Experiment, 508 Firearms, 544 Homicide, 627 Habit of carrying. 627 PLACE OF ACCIDENT Sliown by photographs, 981 PLACITA Not part of record. 1102 PLANS AND SPECIFICATIONS Eminent domain, 495 PLASTER CAST, 418 PLATS Record of presumed correct, 1034 Subject in general, 990 to 992 Conveyance by reference, 678 PLEADINGS AND PROOFS Abatement Facts of record need not be pleaded, 3 May participate in proof of damages after default, 4 Abbreviations Necessary to allege how used. 5 Accessory Allegations when principal and accessory joined in one count, 17 IxNDEX 1513 [references are to pages] PLEADINGS AND PROOFS (Continued) Accord and satiafaetion Under plea of nil debet, 22 In action of trespass, 22 Case, 23, 1119 Admission Fact admitted in pleading cannot be disproved, 64 Admissions and declarations Former pleadings, 63 Equity competent at law, 63 Amended pleading, 63 Bill of particulars, 63 Demurrer, 63 Affidavit, 63 Pleading not filed, 63 Plea of non est factum, 63 Of co-defendant, 6-4 Withdrawal of plea, 64 Adultery After filing bill, 72 Need not be pleaded as defense to divorce, 449 Affirmative Determined by pleadings as to burden of proof, 85, 216 Allegations and proofs Must agree, 92 Where no allegations, 93 Matters not denied, 93 Alterations, 97, 421 Answer to bill requiring discovery May be disproved, 112 Fact admitted by answer, 113 Appeal bonds Bond set out in haec verba, 117 Averment as to amount of judgment, 117 Non est factum, admits material averments, 117 Plea of non damnificatus, 117 Recitals in bond, 118 Arbitration and award Impeachment, parol incompetent, 121 Assault and battery Burden of proof under particular pleading, 124 Plea of son assault demesne necessary to justification, 124 Preservation of peace to diminish damages, 125 Matters in discharge specially pleaded, 125 Assumpsit Burden of proof under common counts, 131 Indebitatus assumpsit, where agreement not for payment of money, 132 When count for money had and received sustained. 132 Goods sold and delivered, when indebitatus assumpsit will lie, 132 Date of contract, 395 Common counts sufficient for work and services, 133 Executory contract, must declare specially, 133 Special contract, when fully performed, under common counts, 133 Abandoned contract, recovery under common counts, 134 Obligation by statute, 134 Policy of insurance, 134 Admissibility of policy without proof of execution, 723 Breach of contract. 134 Breach of warranty, 134 Pay in articles of personal property, 134 Promissory note under common counts, 135 Partnership account. 135 1514 INDEX [references are to pages] PLEADINGS AND PROOFS (Continued) Kent, i;;") General issue, 135 Matter of defense after commencement of suit. 136 General issue admits capacity in which defendant is sued, 136 Tender and Statute of Limitations, 136 Abandonment of contract, 136 Payment competent under general issue, 136, 965 Unlawful contract, 136 Recoupment, under general issue, 136 Joint liability, denial. 958 Set oil must be pleaded or notice given, 136 Special damages in recoupment, 137 Custom and usage as affirmative defense, 137, 383 Premature action, 137 Failure and want of consideration, 137 Bankruptcy must be pleaded, 138 Statute of Frauds, 138 Ultra vires, must be pleaded, 138 Breach of warranty, 138 Guaranty, defense want of notice, 139 Tender, "l39 Fraud and circumvention, 139 Insurance contracts, special pleas, 139 Best and secondary Action or pleading as notice to produce, 161 Bigamy Proof must show laAvful spouse living at time of cohabitation, 176 Bill of lading Contract limiting liability under general issue, 180 Bill of particulars Scope and effect, 181 Bonds Contradiction of recitals incompetent, 184 Breach of promise Date of contract, 205 Chastity, 266 Brokers License, proof unnecessary under common counts, 212 Defense, under general issue, 213 Building contract Admissibility under common counts, 214 Burden of proof as determined by pleadings, 216 Certiorari Admissibility, in relation to date of issuing writs, 260 Chancery Burden of proof as to new matter, 261 Answer taken as true when heard upon bill and answer without replication, 261 Material allegations not denied, 261 Unverified answer, 262 Facts admitted by answer, 262 Sworn answer, 262 Character Proof of by stipulation, 265 Chastity Breach of promise, 266 Confidence game SufHciency of indictment, 299 Consideration "Want and failure of, 137 Corporations Corporate existence. 342 INDEX ]515 [references are to pages] PLEADINGS AND PROOFS (COntiiuuMl) Where instrument executed by corporation, 343 Corporate signature, denial under oath, 350 Custonr and usage As atlirniative defense in assumpsit, 137, 383 In action for personal injury, 383 Particular custom and usage, defense to contract, 383 Date Assumpsit, 395 Case, 395 Debt Non est factum, 400 Plea of payment, 400 Nul tiel record imju-opor plea, 401 Money counts improper, 401 Default Substantive defense inadmissible after, 412 Demurrer to evidence, 418 Denial of execution What plea admits, 419 What put in issue, 419 Authority of agent, 419 Where instrument not set out, 419 Authority of corporate officers, 420 Proof of execution in foreclosure, 420 Denial of personal obligation, 421 Execution of bond, 421 Execution of policy of insurance, 421 Directing verdict, 443 Discovery Effect of answer, 445 Divorce Adultery as defense need not be pleaded, 449 Ejectment Declaration must state character of estate, 473 Homestead under plea of not guilty, 473 Limitations under general issue, 473 Denial of interest by verified plea, 473 Plea denying possession, 473 Proof of demand unnecessary, under general issue, 473 Default by one defendant, 474 Proof where title from common source, 477 On denial of common source, 477 Proof as to time of bringing suit, 479 False imprisonment Plea of general issue, 537 ^Matters in discharge must be specially pleaded, 537 Forcible entry and detainer Possession material question, 551 Title not subject to inquiry, 551 Foreign judgments Declaration against one, judgment against lie and others inad- missible, 555 Foreign law Must be pleaded, 558 Except in action on case, 558 Former jeopardy Need not be pleaded, 568 Former pleadings Subject in general, 568 As admissions, 63 Not admissible to contradict witness not party, 693 1516 INDEX [references are to pages] PLEADINGS AND PROOFS (Contimicd) i'luud and ciicuuiveiition Assumpsit, 139 Infancy Burden of proof on plea, 700 Insurance Suicide must be specially pleaded, 1?>9 Admissibility of policy without proof of execution, 723 Interest laws of sister state I\Iust be pleaded, 731 Joint liability, denial, 958 Judicial notice Matters of, proof not required, 7G1 Libel and slander Proof of words used, 7S7 Want of notice, 789 Justification, plea, 791 Effect of plea, 793 Privileged communications, admissible under general issue, 793 Truth of charge i)iadmissi))le under general issue for any purpose, 794 Bad reputation of plaintiff, competent in mitigation of damages, 795 Limitations Defense only by plea, 797 Money counts Proof in general, 857 Not guilty In criminal action, 568 In ejectment, 473 Non-joinder Of parties plaintiff, shown under general issue, 8GG As to defendants, defense may be interposed under general issue, 867 Ordinances Cause predicated on, specially pleaded, 967 As defense, admissible under general issue, 897 Ownership When matter of inducement, 901 Partnersliip Joint liability may be denied under general issue, 958 Payment Admissible under general issue, 965 Physical examination Motion papers incompetent, 986 Quo warranto Counts distinct, 1054 Recognizance Writ as declaration, 1077 Weight and sufficiency under plea of mil tiel record, 1079 Reformation of instruments in equity Parol evidence, 1111 Release Proof of competent under general issue in case, 1119 Must be specially pleaded in action of trespass, 1119 False imprisonment, matters in discharge nuist be specially pleaded, 537 Replevin Plea of non cepit raises issue of taking of property, 1126 Property in defendant, any legal title comi)etent, 1126 Action on replevin bond, merits undetermined, competent, 1130 Representative capacity Not put in issue by plea of general issue, 1133 Not subject to attack in collateral proceedings, 1132 Set off and counterclaim Defense of recoupment admissible under general issue, 1177 Set off must be pleaded, 136 INDEX 1517 [references are to pages] PLEADINGS AND PROOFS (Continued) ^^^^'parcir competent to aid description though statute of frauds pleaded. 1189 Allegations and progf must agree, 1190 Stipulation 4 Inadmissible on second trial, 1200 Striking out evidence, 1207 T3.X dpods Parol evidence incompetent to supply defects, 1217 Tender Burden of proof on plea, 1227 Effect as admis'sion, 1229 . , ,• iooq May be explained where not relied upon in pleadings, 1^29 Timber Want of license must be averred, 1234 Trespass . „ _ , j -.0^^ Justification must be specially pleaded, 1244 Trusts Parol admissible to show resulting trust, 1256 Inadmissible to create express trust, 1256 Admissible to aid express trust, 1257 ^^" Must be pleaded on bill in chancery or common law, 1262 Venue Necessity of proof, 1266 Wages, earning capacity and domestic relations Snecial contract must be alleged. 1275 Testimonv as to wages competent though no special damages al- leged, 1276 Fact of next kin, 1276 Under mines and miners act, 1279 Weight and sufficiency Criminal charge in civil suit, 1200 Work and services Value, proper inquiry under qvaninm mernit, 1372 Justification for discharge of employe, under general i.sue, 1374 PLEDGE In general, 942 Presumptions, 1034 Defined. 992 Delivery of note of third person, 992 Delivery in general, 993 Written transfers, 993 Defense to collateral note. 993 POLICE RECORDS, 307, 994 POLICY See insurance. 717. 719 POLITICAL SUB-DIVISIONS Judicial notice, 742 POISON . • 1 ROS As exhibit to jury m homicide, 638 Inducing another to commit suicide by taking, i-i* POOR Support of Judicial notice, 742 POPULATION Judicial notice. 742 POSITIVE AND NEGATIVE Positive defined. 994 ,. nnt- Admissibility of negative testimony. 995 Witness may state he would have heard, 996 Weight. 996 1518 INDEX [refekences are to pages] POSSESSION Admissions and declarations, 58 Conclusions of witness, 290 Presumptions, 997 Of deed, presumption as to delivery, 414 Payment, 963 Real property Witness may state who is in possession, 999 Transfer may be proven by parol, 999 Ownership of property in possession of husband, G56 POSSIBILITY As evidenced by instance's, 18, 378 Opinion as to accident, 516 POSTAL REGULATIONS, 628 .Judicial notice, 759 POST MORTEM EXAMINATION Homicide, 628 Compellinof physician to make, 854 POST NUPTIAL CONTRACT As l)ar to dower, 455 POST OFFICE Judicial notice, 759 Similar complaints to inspector, 299 POWDER BURNS Experiments, 534 Clothing, 638 POWER OF ATTORNEY, 104, 942 POWER OVER ESTATE Presumptions, 1036 PRECAUTIONS TO AVOID ACCIDENT. 1188 PREDECESSORS IN TITLE Admissions of As to real property, 52 Personal property, 59, 905 Made duiinji possession, to show ownership, 999 PRE-EXISTING DEBT No presumption of payment from giving note, 964 Check, 1007 PREFERENCE OF CREDITOR FraiKhih'ut conveyance, 581 PREGNANCY Relevancy of in actions for rape, 1059 Presumption as to age of woman, 1020 PREJUDICE Against Hebrew race Not judicially noticed, 759 Bias and hostilitv. 173 PREJUDICE AND ANTIPATHIES As test of testamentary capacity, 1314 PRELIMINARY PROOF Abstracts of title, 12 Best and secondary, 158 Dying declarations, 467 Impeachment, 688 Preliminary proof not required to admit admissions of party, 34, 688 Photographs, 982 PREMATURE ACTION Assumpsit, 137 PREMISES Repute as disorderly house, 445 Former leasing for gaming house, 591 PREPONDERANCE Number of witnesses considered, 362 Fraud, 578 INDEX 1519 [references are to pages] PREPONDERANCE (Continued) Fiiiud 11 nd deceit, 580 Fraudulent conveyances, 581 Gambling contracts, 589 Gifts, 595 Defined, 503 Weight and sufficiency in general, 1290 Reasonable doubt, in general, 1065 Bastardy, 154 Alibi, 90 Penalties, 976 Violation of ordinance, 976 PRESCRIPTION See dedication, 402 PRESUMPTIONS Defined, 1000 Effect, 1000 How must arise, 1001 No presumption on a presumption, 1001 Presumption of fact, 502 Presumption of law, 502 Particular presumjitions Abandonment of homestead, 1 Abbreviations, 1001 Abduction, 6, 1001 Abortion, 8 Absent witness, 9, 1001 Abstracts of title, 16 Accident, 1002 Account stated, 1003 Acknowledgment, 1002 Ademption, 1002 Adjournment of court, 1002 Adoption, 1002 Adultery, 1003 Advancements, 1003 Adverse possession, 77, 1003 Alibi, 1003 Alterations and erasures. 1003 Ancient documents, 1004 Anti- saloon territory, 1004 Animals, 1004 Ante nuptial contract. 1004 Apportionment of debts, 1004 Arbitration and award, 1004 Assent, 1005 Attorneys, 1005 Bailment, 1005 Banks and banking, 1006 Bastardy, 1006 Bill of exceptions, 1006 Boundaries, 201. 1006 Breach of promise, 1006 Buildings. 1006 Carriers, 1006 Character, 1007' Chattel mortgages, 1007 Check, 1007 Circuit judges, 1007 Claims allowed, 1007 Color of title, 1007 Commissions, 1008 Common law, 1008 Compromise and settlement, 1008 1520 INDEX [kefekknces ake to pages] PRESUMPTIONS iCoiitimu-d) Confusion of goods, 1008 Consideration, 1008 Contested elections, 31G, 1008 Continuance, 1008, 1009 Continuance of cause, 1010 Contracts, 1010 Conveyance, 1011 Corporations, 1011 County jud<;es, 1012 Credibility, 354 Customs and usages, 1013 Damages, 1012, 1013 Date, 1013 Death, 1014 Declarations, 1015 Decree in cliancery, 1015 Dedication, 1015 Deeds, 1015, 1016 Deliberation, 1016 Delivery, 415 Depositions, 1016 Descent and distribution, 1016 Destruction and suppression of evidence, 437, 1016 Divorce, 101? Domicile, 451 Due care, 1017 Ejectment, 471 Elections, 1017 Embezzlement, 1017 Employment, 1017 Ivpiitable defense, 1018 Examination of title, 1018 Exemptions, 1018 Fabrication of evidence, 1018 False pretenses, 1018 Fiduciary relations, 1019 Fire arms. 1019 Flight, 1019 Foreign law, 1019 Fraud, 1019 Fraudulent conveyances, 1019 Gaming, 1020 Gifts, 1020 Good faith, 1020 Guardian and ward, 1020 Habits, 1020 Health and physical condition, 1020 Heirship, 1020 Highways, 1020 Homestead, 1020 Indebtedness, 1031 Identity, 1021 Infants, 1022 Innkeepers, 1023 Innocence, 1022 Insolvency, 1022 Insurance, 1023 Intent, 1023 Interest, 1023 Interpreter, 1023 Intestacy, 1023 Jmlicial* sales, 1023 Judgments, 1023, 1024 INDEX 1521 [references are to PA(iES] PRESUMPTIONS (Coiit i.uu-d) Jurisdiction, 1024 Justice of peace, 1025 Knowledge. 1025 Lands, 1026 Landlord and tenant, 1026 Larceny, 1026 Lease, 1026 Legislative acts and journals, 1026 Legitiniacv, 1026 Letters, 1026 Libel and slander, 1027 Loans, 1027 Love of life, 1027 Malicioiis mischief, 1027 Malicious prosectition, 1027 Market price, 1028 Marriage. 1028 Master and servant, 1028 Master in chancery, 1028 Mortgages, 1029 Motives, 1029 Municipal corporations. 1029 Names, 1029 Negligence, 1029, 10,30 Negotiable instruments, lOol Notaries public, 1031 Notice, 1031 Novation, 1031 Officers. 1031 Official business, 1031 Ordinances, 1032 Ownership. 1032 Parent and child. 1032 Partnership. 1033 Party walls. 1033 Payment, 1033 Penalties, 1034 Perjuries, 1034 Physicians and surgeons, 1034 Plats, 1034 Pledge. 1034 Possession. 1034. 1035 Power of city, 1035 Power over estate. 1036 Proceeding at law. 1036 Purpose, 1036 Principal and agent. 1036 Public documents, 1036 Quo tvarranfo, 1036 Tvecognizance, 1086 Records, 1037 Receipts, 1037 Recordation, 1037 Refusal to produce evidence, 1037 Release, 1037 Resulting trust, 1037, 1038 Residence. 1038 Robberv. 1038 Safetv," 1038 Sales," 1038 Sanity and insanity, 1039 Seals," 1039 Seduction, 1040 1522 INDEX [references are to pages] PRESUMPTIONS (Contimu'd) Scttlcnu-iit, 1040 Special assessment, 1040 Speed, 1040 Statutes, 1040 Stipulations, 1041 Suicide, 1041 Surveys and field notes, 1041 Survivorship, 1041 Taxes, 1041 Tax deeds, 1043 Technical words, 1043 Tender, 1043 Timber, 1043 Usury, 1043 Value, 1043 Voluntary conveyance, 1043 Voter, 1043 Waters and watercourses, 1043 Wills, 1043, 1044 Witness, 1044 Work and service, 1044 PREVIOUS CONVICTION, 566 PRICE ISIarket price, 833 Public sale, 1363 Some evidence of value, 1363 PRIMA FACIE EVIDENCE DEFINED, 502 PRIMARY EVIDENCE See Best and Secondary, 156 Admission's, 34 PRINCIPAL AND AGENT Admissions and declarations, 46 to 50 Presumptions, 1036 Burden of proof, 343 Agency, 86 Husband and wife, 655 Competency of wife as witness, 661 Witnesses, 1348 PRINCIPAL AND SURETY Burden of proof, 344 Admissions and declarations, 50 Parol to show signing, on condition, 1045 Admissions of principal, 1045 Judgments against principal, 1046 Receipt by co-surety, 1073 Actions on official bonds, 888 ^risnaming of corporation, 1045 PRINTED ARTICLE Secondarv evidence in action for libel. 788 PRIOR EXISTENCE No presumption from present existence, 1009 Possession of real estate, 1335 PRISON RECORD Inadmissible to show former conviction, 567 PRIVATE CORPORATIONS See corporations, 338 Records, 1091 Seals, 1164 Books of account as admissions, 195 PRIVATE STATUTES Judicial notice as to, 1195 PRIVIES Admissions and declarations In estate, 59 INDEX 1523 [references are to pages] PRIVIES (Continued) In blood, 5U Administrator, 59 Assignor and assignee, 59 Heirs, 60 Devisees, 60 Parties to contract, 60 Former testimony, 571 PRIVILEGE OF WITNESS Immunity in general, C82 Voter, 323 As to slander, 793, 1051 Compulsory inspection of person, 986 Under bill of discovery, 685 Fraudulent conveyances, 585 Caming losses, 685 PRIVILEGED COMMUNICATIONS Attorney and client The relation, 1047 Attorney may testify as to relation. 1047 Matters of privilege, 1048 Attorney as scrivener and attesting witness, 1049 Presence of third parties, 1049 Who may claim, 1050 Waiver, 1050 Public officials, 1050 Election officers, 1051 Legal proceedings, 793 Witness, 1051 Voter, 323 Immunity in general, 682 Husband and wife In general, 663 In presence of third person, 644 Court proceedings generally. 793 PRIVITY Admissions of those in privity. 59 To admit former testimony, 571 PROBABLE CAUSE False imprisonment, 536 Libel and slander, 787 Malicious prosecution, 814 PROBABILITY OR IMPROBABILITY OF STATEMENTS As affecting tredibility, 355 Cross examination, 373 PROBATE OF WILL, 1328 to 1336 PROBATE COURT Presumption as to jurisdiction, 1024, 1103 PROBATE JUDGE Certificate of, as showing heirship, 616 PROBATIVE FORCE Province of jury, 361 PROCEEDING AT LAW Presumption, 1036 PROCESS Date of execution. 393 Lost execution, 162 Return of officer in foreign judgment. 554 Conclusiveness of recital in judgment, 554 Judicial notice as to official return, 1173 Presumed regular, 1173 Amendment. 1173 Effect as evidence, 1173 1524 INDEX [references are to paces] PROCESS (Continued) \\ lion may be contradicted, 1173 Recital of service in domestic judgment, 1174 By publication, 1175 Process part of record, 1102 Defective process contradicting decree, 1105 Failure of judgment to recite service, 1105 I'arol to aid or contradict. 1105 PRODUCTION OF DOCUMENTS Immunity, 1051 Power of court and scope of order, 1051 Notice to produce, 1052 Copies of documents, 1053 Papers for fishing purposes, 1051 Where party know same indispensable, 1052 Refusal to produce evidence, 1112 Destruction, suppression and fabrication of evidence, 437 PROFERT Child in bastardy proceedings, 151 Age, 86 PROFILE OF IMPROVEMENT, 442 PROFITS Eminent domain, 489, 493 Expert, 518 Wages and earning capacity, 127G Bookkeeper, 201 Conclusions of witnesses, 290 PROMISE OF MARRIAGE See breach of promise, 204 PROMISE TO REPAIR Injury to person, 1053 Landlord and tenant, 1054 PROMISSORY NOTES Best and secondary, 169 Compromise and settlement. 283 See, -avte, negotiable instruments PROOF Defined, 501 When unnecessary Matters judicially noticed, 761 Preponderance sufficient in civil cases. 1290 Reasonable doubt. 1067 Beyond reasonable doubt defined. 1065 Order of proof in general, 889 • ' Offer of evidence, 884 PROOF OF DEATH As admission of suicide, 1213 Benefit society, 712, 720 PROOFS OF LOSS Fire insurance. 725 PROPER CUSTODY Ancient documents to come from, 104 PROPER MANAGEMENT OF RAILROADS Custom and usage, :!SS Expert and opinion. 529 PROPERTY See. 8 Right of counsel to inspect memorandum, 367 Memoranda made by witness, 80S Made by another, 838 Memoranda as independent evidence, 8 12 Reading stenograjilier's notes to jury, 1203 Of own witness, where testimony surjirise, 686 Leading questions. 773 REFUSAL OR FAILURE TO PRODUCE EVIDENCE In civil actions Presumptions, 1112 Refusal of witness to answer, 1114 Failure of party to testify, 1114 Right to explain, 1115 Absent witness, 8 In criminal actions Failure of party to testify, 1114 Destru'ction, suppression and fabrication of evidence, 437 Production of documents, 1051 Immunity, 682 Privileged communications, 1047 REGISTERS OF BIRTHS, DEATHS AND MARRIAGES, 1116 REGISTRATION OF TITLES Subject in general, 1116 Abstract's of title, 10 Good faith, 595 Title in general, 1235 Tax deeds, 1217 Color of title, 279 Possession. 999 REGULATIONS OF POST OFFICES Judicial notice, 759 RELATIONSHIP Legitima'cy, 777 Pedigree, 972 Parent and child, 907 Husband and wife, 655 May be shown by cross examination, 371 As effecting credibility, 358, 360 RELATIVE Declaration's of as to pedigree, 973 RELEASE Accord and satisfaction, 21 In assumpsit, 139 Burden of proof, 245 Presumptions, 1037 Parol evidence, 1118 Seal not necessary. 1119 Admissibility of release, 1119 Effect as evidence, 1120 Impeachment of release, 1121 Abandonment of contract, 2 Waiver. 1279 Subsequent agreements, 910 Need not be pleaded in action of case, 1119 Must be pleaded in trespass, 1244 1534 INDEX [references are to pages] RELEVANCY DfliiK'd, 1122 Tendency to prove, 1122 Remoteness, 1123, 995 As to competency, 1123 Limitinj,^ eliect, 1123 Connection witli other testimony, 1123 Order of proof, 1124 ^lotion to strike ovtt, 1124 Right of adverse party, 1124 Right to rebut incompetent testimony. 1125 Cross examination as to irrelevant matters, 1125 Hearsay, whicii has been received, 1125 Motives, 860 Unreasonableness or absurdity, 997 Handwriting, G07 Similar facts and transactions Subject in general. 1182 Separate and similar offenses Subject in general, 1168 No other accident, 18 Conditions relating to accident, 18 Character of litigants Civil actions in general, 263 Bastardy. 151 False imprisonment. 593 Libel and slander. 794 Malieiou's prosecution, 814, 817 Breach of promise, 208 Criminal conversation, 364 Sedu'ction, 1116 On question of sanity, 645 Criminal actions in general, 264 Homicide, 631 Rape, 1058 Pecuniary circumstances Subject in general, 969 Wages, earning capacity and domestic relations, 1273 Acts between strangers Books of account as corroborative testimony, 198 Judgments between strangers, 739 Service of process, 1173 Similar contracts with others. 1186, 1187 RELIANCE UPON REPRESENTATIONS Confidence game, 300 False pretenses, 541 Fraud, 578 l''i'aud and deceit, 579 RELIGIOUS ASSOCIATIONS Admissions and declarations, 62 .hidicial notice, 755 RELIGIOUS BELIEF As alleeting credibility, 355 As aireeting com])etencv, 1339 RELIGIOUS CONSOLATION, 465 REMAINDERMAN Damage, waste, 1287 Xot affected bv payment on mortgage by widow, 800 REMOTE TRANSACTIONS Confidence game, 299 Homicide, 630 Friiud. 1184 Positive and negative, 995 INDEX 1535 [references are to paces] REMOTE TRANSACTIONS (( (.iilimicd ) Letters of tostator, i:!l)'.i Bcs (jcstw, li:!8 REPAIRS AFTER ACCIDENT, 1125 REPETITIONS 111 cmss examination, 367 REPLEVIN Burden of proof, 245 Pleading Non cepit, 1126 Property in defendant, 1126 Burden of proof. 1126 Weight and sufficiency Plaintiff's title, 1126 Demand. 1126 Possession, 1127 Mortgaged property, 1127 Defenses Admissibility of evidence, 1128 Actions on bonds In general, 1129 Comdusivcness of adjudication. 1129 Measure of damages, 1130. 11 31 REPLICATION Hearing on bill and answer, 112, 261 REPLIES ° By persons referred to, 612 To letters Need not be introduced, 779 REPORTS Accidents to miners. 1090 Contract set out in law report, 168 Proof of foreign law, 559 Reading to jury, 188 Insurance State reports of benefit society, <14 Reports of agent Hearsay. 609 REPORTS AND STATUTES Proof of law of sister state, 559 REPRESENTATIONS Reliance upon False pretenses, 541 Fraud, 578 Fraud and deceit, 579 Opinions of witnesses. 578 REPRESENTATIVE CAPACITY, 1132 REPRESENTATIVES Statements of. when binding, 88 Admissions of, 49 .,, , i -nr-? Competency of as to transactions with '\^^^^'''\^^^^ .^.^ Personal representative, competency as witness. 1346. 1348 REPUTATION Of disorderly house, 443 To repel presumption of fraud. 577 Impeachment of witness by. 695 Of engine among employees, 765 Character in general. 263 Libel and slander. 794 Malicious prosecution, 817. 814 False imprisonment, 536 Homicide As proof of insanity, 645 1536 INDEX [references are to pages] REPUTATION (Continued) Character of accused, 631 Character of deceased, 632 Reputation of employees, 600, 601, 765 Chastity, 266 As to title to real property, 1242 REPUTE Location of boundaries, 203 Location of lot, 679 REPUTED OWNERSHIP, 999, 476, 79 REQUEST AND REFUSAL Breach of promise, 205, 206 RES ADJUDICATA, 944 .See former adjudication, 563 I'ormcr jeopardx', 568 RESCISSION OF CONTRACT Fact of rescission, 1076 Circumstantial evidence, 1077 Setting aside in equity, 1077 Abandonment of contract, 2 Release, 1118 Fraud and deceit, 580 Subsec^uent agreements, 919 Mistake, 923 Cancellation of instruments. 255 Reformation of instruments, 1110 Burden of proof, 244 RESEMBLANCE Profert of child to show, 151 RESERVATION Fixtures, 550 By deed. 935 RES GESTAE Evidence defined, 501 In general, 1132 Time of act or declaration, 1132 Statements of injured person, 1133 Statements of prosecuting witness, 1135 Different forgeries, 1136 Book entry, 1136 Stubs of check book, 1136 IVIemorandum, 1138 Must not be narrative, 1138 Fact accompanying act, 1138 By-standers, 1139, 1141 Self serving declarations, 1140 Declarations of agent, 1140 Statements of employees, 1141 RESIDENCE Burden of proof. 246 Inhabitant defined, 1141 Of corjjoration, 1141 In attachment proceedings, 1142 Divorce proceedings, 1143 Purposes of taxation, 1144 Purpose of administration, 1145 As to statute of limitation's, 1145 As affecting descent, 1146 Parties to suit, 1146 Citizenship in general, 272 Contested elections, 320 Domicile, 451 INDEX 1537 [references are to pages] RESISTANCE TO OFFICERS 111 tit'iu'ial. 114G RESISTING ARREST In gt'iu'ial, 1147 RESOLUTIONS County Board As to defaulter, 186 RESTRAINT OF TRADE Subject in 22 Bad faith in obtaining possession, 583 Homicide, 639 Husband and wife, 658 Incest, 699 Infants, not bound by, 705 Insured, 721 Letters, 779, 828 1542 INDEX [REFERENCES ARE TO PAGES] SELF DISSERVING STATEMENTS AND ACTS (Continued) LiniitiitioMs, 7i)8 Declarations as to ownership, 905 Partnership, 956 Pedigree, 973 Principal and surety, 1045 Accused in prosecution for rape, 1057 Prosecutrix in prosecution tor rape, 1058 Admission of mistake. 1111 Assignor of mortgage, 1128 Title, 1239 Trespass, 1247 Trover and conversion, 1248 Trusts, 1256, 1257 Whole of, 1294 Wills, 1318 SELF SERVING ACTS AND STATEMENTS In corroboration, 355 Dying declarations, 470, 635 Admissions and declarations, 37 Letters, 782, 783 As res gestae, 1140 Hearsay, 608 A's to ownership of personal property, 999 Title, 1239 •, .• , + «ro Of injured party, not to be taken into consideration by experts, 8o2 Replevin. 1128 " Homicide, 642, 643 Part payment Limitations, 798 Pain and suffering, 844, 852 Payment, 966 Pedigree, 973 Complaint of prosecutrix in action for rai)e. 1057 Person robbed, 1152 Telegrams, 1226 Letters While transactions in fieri, 783 Depositions containing, 1295 Conii)etency of witnesses to testify as to, 1362 SENILE DEMENTIA, 1314 SEPARATE ORAL AGREEMENTS Wlicii inav be shown bv parol. 920 SEPARATE AND SIMILAR OFFENSES Admissibility of eviden'ce, 1168 In general, 1168, 1169 To show guilty knowledge, 1169 Embezzlement, 1170 Extortion, 1170 Bastardy, 151 Sexual crimes, 1170 Criminal conversation, 364 Forgery, 1170 Illegal sale of drugs, 1171 Receiving stolen goods, 1171 Lottery, 1171 Larceny, 1171 Homicide, 1171 False pretenses, 1171 Purglary, 1172 Conspiracy, 1172 Confidence game, 1172 Abortion, 1172 See similar facts and transactions, 1182 INDEX 1543 [references are to pages] SEPARATION OF WITNESSES See exclusion aiul separtvtioii of witnesses, 504 SERVANT Sec. •ante, master and servant SERVICE Subject in general, 1173 Foreign judgments In general, 554 Foreign justices of peace, 763 Domestic judgments, 1105 Notice in forcible entry and detainer, 553 See, ante, return of process SERVICES Work and service's, in general, 1309 Of infant, 705 Expert as to value of, 1372, 533 Value where fixed by 'contract, 1373 Professional Presumed necessarily rendered, 130 Presumption as to agreement to pay for, 130 By member of family, 909, 1371 Attorneys, 143 SET OFF AND COUNTER CLAIM Burden of proof, 247 Pleading, 136 What subject of set off, 1177 Must exist at commencement of action, 1177 As affecting burden of plaintifl's, 1177 Sufficiency of evidence, 1178 Special damage's must be pleaded, 1178 Allirmative judgment, 1178 SETTLEMENT Presumptions, 1040 From giving note, 964 From lapse of time, 967 Payment, 963 Burden of proof, 247 For same accident, 1186 Price paid others in eminent domain, 484 Bastardy, 155 Offer of, as admission, 773 See compromise and settlement, 281 SEXUAL CRIMES Similar offenses, 1170 SEXUAL INTERCOURSE Non access Married woman, as to spurious offspring, 778 Incapa'city to consent, 1057 Female under age, 1056 SHERIFF Deed as evidence of title, 1236 Sale, as evidence of value against officer, ]3G5 Judicial notice that sheriff is jail keepei' 749 SHIFTING OF BURDEN OF PROOF, 215 SHIP ENROLLMENT, 334 SHOE PRINTS See foot|)rints, 574 SHOP BOOK AS EVIDENCE, 193, 839 SHORTHAND NOTES See 'stenographer's notes, 1201 SICKNESS Non expert witness As to effect of injury, 850 Generally, 854 1544 INDEX [references are to pages] SIDEWALKS liijuriL's to person, 1179 Admissibility of evidence, 1180 Notice of injniy, 1181 Opinion evidence Ice upon as hindering tralTit, 530 Proper construction, i>?A Care of pedestrian, 531 SIGNATURE Acknowledgment Failure of olFiccr to write oilice, 28 Failure to attach seal, 28 Failure to sign, 28 Handwriting Genuineness in general, 602 Fac simile, 603 Photograph, 607, 983 Forgery "party whose signature alleged to be forged, as witness, 563 Corporate signature, 350 Of officers of court Judicial notice, 750, 751 As to proof by subscribing witness, 1211 Tax receipts, 1223 By mark, 603, 1322 Seals Notary of county, 1162 Presumption of knowledge from signing, 1181 Sufficiency of printed signature, 1182 Sufficiency of signature written at dictation, 1182 Presumption as to knowledge by bank, 1006 Wills generally, 1322 Acknowledgment of testator, 1322 Necessity of witnesses, 1323 Presence of witnesses when testator signs, 1323 Presence of testator's signature, 1323 Witness' knowledge of instrument, 1324 Attestation defined, 1324 SILENCE As confession, 292 Where accused denies guilt, 1292 By attorneys at judicial proceedings, 44 SIMILAR ACCIDENTS In general, 1182 Sidewalk injiu-ies, 1180 SIMILAR COMPLAINTS Conlidence game, 299 Fraud, 577 Nuisance, 870 SIMILAR FACTS AND TRANSACTIONS Similar accidents, 1182 Fraud, 1184 Animals, 1185 (jlambling transactions, 1185 Sales, 1185 Guaranty, 1186 Other contracts, 1186 Mine royalties, 1186 Settlement for injuries, 1186 Signing of bond by corporation. 1187 Nuisan'ce, 1187 As evidence of adecpiacy of consideration, 1187 As evidence of bona fide transaction, lls7 INDEX 1545 [references are to pages] SIMILAR FACTS AND TRANSACTIONS (Continued) Violation of bnildiiij^ line it'stiiftions, 1187 Payment of insurance piemiuni, 1188 Previous negligence, 1188 Fires by locomotives, 546 In eminent domain, price paid for other lands, 486 See separate and similar offenses, 1168 SIMILAR FRAUDS, 577 SIMILAR OFFENSES See separate and similar offenses, 1168 SIMILAR SALES, 485, 1185 SISTER STATES Judgments, 554 Laws of, 558 Notary public, presumption, 1031 Interest laws, 731 Ordinance of city of Proof by certified copy, 896 Observance of Sunday Judicial notice, 767 SITUATION See diagrams, 441 Plats, 990 Photographs, 981 Surveys, field notes and monuments, 1215 View by jury, 1268 SLANDER and" LIBEL See libel and slander, 787 SMOKE AND CINDERS Emnient domain, 496 SOCIAL RANK Criminal conversation, 364 Seduction, 1167 SODOMY, 1188 SOIL CONDITIONS Judicial notice, 760 SOLICITOR Foes and 'services, 1373 SOLVENCY See insolvency, 709 SON Same name as father Presumption as to conveyance, 674 Emancipation, 705 SPACE AND DISTANCE Opinions How far witness could see, 531 Distance between objects, 531 Experiments, 507 Judicial notice, 744, 745 Speed. 1194 SPARK ARRESTER Use of on engines, 545 SPECIALTY See, ante, parol interpretation of writings Seal's SPECIAL ASSESSMENTS Presumptions, 1040 SPECIFIC ACTS In seduction, 1167 In prosecution for rape, 1058 Similar facts and transactions in general. 1182 Cross examination. 566 Inadmissible in rebuttal of proof of good character, 264, 631 1546 INDEX [kefekences are to pages] SPECIFIC PERFORMANCE .Mutuality of contract, 1189 Parol to a id description, 1189 Agent's authority, 1189 Parties' understanding of contract, 1189 Consideration, 1189, 303 Acceptance, 1189 Abandonment of contract, 1189 Title AfTidavits, when part of attract. 1190 Subject of description, in general, 4o6 Statute of frauds Parol contract to convey, 1200 Part jDerforman'ce, 1200 Weight and sufiiciency, 1200 Written contract to convey. 1201 Contract signed by another, 1201 Burden of proof, 247 Allegations and proofs, 1190 Weight and sufficiency, 1190 Remedy as matter of course, 1190 Declarations of intention to give, 1190 Burden of establishing contract, 1191 Readiness to perform, 1191 Change of contract, 1191 Relating to personal property, 1191 Competency of witnesses, 1358 SPECIFIC PERIL Circumstantial evidence, as proof of death, 397 SPEED Of railroad train, 1191 Street car, 1193 Fire engine. 1194 Wagon.'^1194 Automobile, 1194 Horses, 1195 SPIRITUALISM Relief in as affecting testamentary 'capacity, 1314 SPOLIATION Sec Destruction, svippression and fabrication of evidence, 43'? SPOUSE See husband and wife, 655 STAINS Blood-stained clothing Rape, 1059 Demonstrative evidence, 417 STAMP ACT, 1195 STATE LAWS See. ante, sister state's STATE OF FEELINGS See bias and hostility, 173 STATE OF HEALTH See mental and physical states. 844 STATUS As to heirship Decree in partition, 616 Judgments to ])rove against strangers, 557 STATUTE OF FRAUDS Pleading Equity, 1198 Common law action, 1198 Executed contracts, 1198 Executory contracts, 1198 INDEX 1547 [references are to pages] STATUTE OF FRAUDS (Continued) DelL'iise personal, 119S Agreement not to be performed Avithin one year, 1198 Promise to answer for delit, default or miscarriage of anotlier, 1199 Oral contract to convey, 1199 Written contract to convey, 1199 As to matter of description Contract to convey, 1189 Ratification of sealed instrument, 10C4 No application to reformation of instrument, 1111 Abrogation of release by parol, 1118 Waiver by parol. 1280 STATUTE OF LIMITATIONS See limitations, 797 STATUTES Judicial notice, 1195 I'resumptions, 1196 Admissibility of evidence to impeach, 119G Weight and sufficiency, 1197 Construction where adopted from foreign state, 1197 Foreign statutes, 558 Abstract of title, 16 STATUTES OF SISTER STATE Con'struction, 558 Printed copies, 560 Copy of legislative act, 5G0 Parol proof. 560 STATUTORY OFFENSES Intent. 727 STEALING See burglary, 252 Embezzlement, 480 Larceny. 766 Receiving stolen property, 1072 Robbery. 1 1 50 STENOGRAPHIC NOTES Former testimony Absent witness, 10. 1202 Insane witness, 1201 Deceased witness, 1201 Impeachment of witness. 1202 Witness disqualilied. 1203 Bill in equity for new trial. 1203 Identity of action, 1203 Prosecution for perjury, 1203 Refreshing memory of jury, 1203 As independent evidence, 1203 Preliminary proof, 1203 Transcript,"^ 1204 STEPFATHER Liability for necessaries furnished infant. 705 STEREOSCOPIC VIEW, 1204 STIPULATIONS Of attorney Trial. 1204 Consent to judgment. 1204 Arbitration stipulation, 1205 Effect as evidence Unfiled, 1205 Oral agreement, 1205 Will be enforced. 1205 Recitals, 1205 Minors, 1206 1548 INDEX [references are to pages] STIPULATIONS (Continued) Persons not parties, 1206 Subsequent trial, 1200, 570 Exhibits, 1206 When may be withdrawi;, 1206 Excess of authority, 1206 Criminal trial, 1206 Depositions Contained in suit on file in Appellate Court, 4:U Proof of character by, 632 Eminent donuiin, 495 STOCKHOLDERS Admissions in books against, 195 Ownership of stock, 346, 903, 906 As witnesses, 1347 Admissions of, 61 Books of private corporations as against, 1091 Presumption as to notice of meeting, 1011 STOCKHOLDERS' MEETING Notice of. 34S. 1011 STOCK IN CORPORATION .Market price, 825 STOCK SUBSCRIPTION In general, 1211, 1213 Presumption, 1011 Parol as to contract, 947 STOLEN GOODS I'ccciviiiii- stolen property. 1072 STOPPING CAR Opinion. 511 STRANGERS Admissibility of judgment against stranger to action, 739 Slay prove written contract by parol, 918 As to proof of partnersliip contract, 956 Agency, 89 Books of private corporation, 1091 Admissions of strangers. 41 Affidavits of third persons, 609 Statements in general, 608 Letters, 610. 781 Receipts, 1072, 612 Invoking statute of frauds, 1198 Relevancy of business transactions with, 1186 Gambling contracts with, 1185 Nuisance as to, 1187 Violation of building line restriction, 1187 Judgment, as proof of heirship, 616 Judgment to prove status of tlie person. 557 Books of account not admissible as corroborative evidence, 42 Threats of 'strangers, 1232 As impeaching witnesses. 697 Admissions to strangers, 24, 798, 704 '^]ilv testify to conversation between husband and wife, 644 STREAkS •ludicial notice. 760, 761 STREET RAILWAYS Custom and usages, 389, 390 Opinion Operation and management, 531 Speed, 1193 STREETS Judicial notice, 744, 745 Dedication, 403 INDEX 1549 [references are to pages] STREETS (Continued) V\ hen paity to conveyance ewtoppcd to deny, 408 Abandonment, 1 STRENGTH Of assailant, homicide, 632 Rt'ciuired to tire jiistol. 508 STRIKING OUT EVIDENCE Propriety of motion, 1207 Time for motion, 1208 Form of motion, 1208 Answer to cross examination, 1208 Scope of motion, 1208 Stating grounds, 1208 Improper answer, 1208 Irresponsive answer, 1208 Improper evidence, 1208 Refusal of witness to answer on cross examination, 1209 Evidence admissible for any purpose, 1209 Failure to object, 1209 Evidence conditionally admitted, 1209 Waiver, 1209 Effect of striking out, 1210 When harmles's, 1211 Review, 1211 Proper defense against incompetent testimony, 1068 STUBS OF CHECK BOOK Entries not part of res gestae, 1136 STUDY As basis for qualification of experts, 513 SUBJECT MATTER Identity by ])arol. 928 SUBJECTIVE SYMPTOMS, 852 SUBORNATION As admission, 438, 357 Of perjury, 883, 980 SUBPOENA, 947 SUBSCRIBING WITNESSES In general, 1211 Not privileged, 1049 Impeachment, 686 Wills, 1329, 1330, 1326 To ancient documents, 104 SUBSCRIPTION Writing as evidence of promise, 1211 Burden of proof, 1212 Presumptions, 1011 Denial of execution, 1212 Admissibility of parol evidence. 1212, 947 Stock 'subscriptions, 1212 Book subscription. 1212 Church subscription. 1212 SUBSEQUENT AGREEMENTS I'arol, 919 SUBSTITUTED ARTICLES, 417, 418 SUBSTITUTED SERVICE See sei'\iee, 1173 SUFFERING Declarations of as part of res gestae, 1133, 846 SUFFICIENCY See weight and sufticiency. 1290 SUGGESTIVE QUESTIONS See leading questions, 771 1550 INDEX [REFERENCES ARE TO PAGES] SUICIDE Habits of deceased on question of, 601, 1214 Burden of proof, 247, 1213 Admissions and declarations, 43 Defined, 1212 Presumptions, 1213 Inducing another to commit, 1214 Declarations of deceased in prosecution for homicide, 647 Attempted suicide, 1041 As bearing on question of sanity, 1157 Attempt as evidence of guilt, 1041 SUMMONS Parol to aid service, 948 Failure of judgment to recite service, 1105 Parol evidence to contradict return against parties who have acquired rights under, 1105 Summons part of record contradicting recitals as to notice, 1105 Service in general, 1173 SUNDAY Judicial notice, 761 SUPPORT OF POOR .(udicial notice. 742 SUPPORT OR SOLE SUPPORT, 1278, 1279 SUPPRESSION OF EVIDENCE See destruction, suppression and fabrication of evidence 438 SUPREME BEING Belief in as affecting competency. 1339 Belief in as alfe'ctino- credibility, 355 SUPREME COURT CLERK Certificate, 258 SURETYSHIP See juincipal and surety, 1045 SURGEONS See physicians and surgeons, 987 SURPRISE By party's own witness Questioning as to former statements, 686 Self-serving manifestations. 765 SURROUNDING CIRCUMSTANCES Parol to aid interpretation of writings, 925 To aid construction of wills, 1299 SURVEYS FIELD NOTES AND MONUMENTS Subject in general, 1214 to 1216 Surveyor's record, 1215 Surveyor incompetent to impeach certificate to plat, 991 Statements of deceased surveyor, 202 Plat to aid surveyor's testimony, 203 SURVIVORSHIP, 1216 SUSPICION AS TO ALTERATION, 93 SUSTAINING WITNESS, 324 SWEDENBORGIANISM Belief in as affecting testamentary 'capacity, 1314 SWORN ANSWERS J- i J^' See answers, 110 Chancery, 262 Contempts, 315 I'ormer pleadings, 570 SWORN COPIES Unrecorded deed, 332 Copies, 328 Record, 1097, 331 Judicial records, 1109 Ordinance of city of sister state. 896 INDEX 1551 [references are to pages] SWORN COPIES (Continued) Of corporation, are ori;^inal not secondary evidence, 346 Secondary evidence, 167, 170 Abstracts of title, 15 SYMPTOMS Subjective and objective As basis for expert testimony, 851, 852 TABLES See life tables, 796 TAKING VIEW iMiiincnt domain. 483 Photographs, 981 View bv jury, 1268 TAMPERING With witnesses, 883 Subornation of perjury, 980 With jurors, 883 TAXATION Property not listed for As sliowinsj dedication, 404 TAX COLLECTOR'S BOOKS, 1222 TAX DEEDS Admissibility to show color of title, 280, 1217 Paramount iitle. 1217 Burden of proving validity, 1217 Parol evidence to aid affidavit, 1217 TAXES Burden of proof Validity, 248 Exemption, 248 Payment, 248 Validity and collection of. 1218 Payment under color of. 1220 Proof of payment by parol, 1221 Payment of as evidence of liquor selling, 115 Special assessment not presumed, 1221 Collector's books, 1222 TAX RECEIPTS Judicial notice, 1223 Parol eviden'ce to explain. 1223 Admission in general, 1224 TAX SCHEDULE As evidence of value, 1264 Insurance, 722 TEACHER Burden of proof Right to teach, 247 Certificate, impeachment, 922 TECHNICAL WORDS Presumption's, 1042 Parol In general. 913 W^ords and terms, 926 Expert and opinion, 526 Abbreviations, 5 TELEGRAMS Best and secondary. 167 Judicial notice. 1224 Original defined, 1225 1552 INDEX [keferences are to pages] TELEGRAMS (Contimu'd) Admissibility, J22J Contract of telegraph company Assent. l:.'2(i TELEGRAPH MESSAGE Judieial notice. 7(11 TELEPHONE CONVERSATIONS, 1226 TEMPERATURE, 532 TENANT fSee, ante, landlord and tenant TENANTS IN COMMON .Admissions of against each other, 39 TENDER Bnrdeii of proof. 248, 1227 Presumption's, 1227 Party to whom made, 1227 Sufficiency of tender Production of money, 1227 Count of money, 1227 IMedium, 1228 Check, 1228 More than amount due, 1228 Specific amount, 1228 After suit brought, 1228 Reasonable attorney's fees, 1228 Offer not sufficient, 1228 Must be unconditional, 1229 Place of tender, 1229 Objections, 1229 Effect. 1229 Explanation of tender, 1229 Keei)ing tender good, 1229, 1230 TERMS OF COURT Jiulicial notice, 75.3 TERMS OF PUBLIC OFFICERS .Judicial notice, 749 TERMS OF TRADE AND ART Ambiguity, 99 Expert and opinion, 526 Words and phrases, 1367 TEST Experiments, 507 Explosives, 534 As to te'st of lapse of time in- court room, 509 Expert and opinion. 514 TESTAMENTARY CAPACITY Wills. 1,305 to 1.315 TESTIMONY DEFINED, 501 THEATRICAL MANAGER Custom and usage, 386 THIRD PARTIES Admissions and declarations In general, 41 Community of interest, 42 Parties referred to for information. 44 See, ante, self serving acts and statements, self dis'serving acts and state- ments, strangers THREATS Subject in general, 1230 In civil actions, 1233 Duress, 461, 462 Extortion, 535 Assault and battery, 125 1NDP:X 155c [references are to pages] THREATS (Continued) Rlalieious prosociitioii, 818 Arson, 12;{ To comniit suicide, 647 Homicide, 1230 Of defendant, 628, ]2:i0 Of one defendant, 1231 Of deceased, 629, 1231 Of third persons, 630, 1232 Of suicide by deceased, 647 TIMBER Subject in general, 1233 Waste, 1286 Trespass, 1243 TIME As affecting alibi, 1)0 Time of alteration. 95 Death from absence, 396 Date, 393 Experiment's Capacity of witness to estimate, 509 Stopping train, 507 Of serving notice to produce papers, 161 Through which res gestcc may extend, 1133 Payment Presumption of, from lapse of time, 964 TIME BOOKS Books of account, 193 ]\Iemorandum, 839 TIME CARDS Books compiled from, 193 TITLE Parol Specific performance, 1190 Burden of proof, 248 Presumption as to examination, 1018 Admissions and declarations To overcome record title, 57 As proof of, 57 To impeach, 57 Opinion incompetent, 532 Subject in general, 1235, 1242 Patents, 961 Adverse possession, 77 Trespass, 1245, 1246 Good faith, 595 Possession, 999 Forcible entry and detainer, 551 Ejectment, 471 Eminent domain, 490 TOBACCO Cigarettes Judicial notice, 755 TOOLS Burglai-'s' tools, 253 TORRENS LANDS ACT Abstracts of title, 11 TORT ACTIONS See, ante, negligence TORT FEASOR Parol explanation of receipt to, 918 Belease to, 1120 TOWN RECORDS, 1085 1554 INDEX [references are to pages] TRACKS l-'oot prints, 574 Trackini;- by bloodhound, 627 TRADE MARK JJuidcn of proof, 249 Siibjoft in general, 1242 TRADE NAME [Selling by Warranty, 1283 TRADITION Ah relating to boundaries, 203 Pedigree. 973 TRAILING BY BLOODHOUNDS. 627 TRAIN BULLETINS, 1243 TRANSACTIONS WITH DECEASED PERSONS Competency of witnesses, 1340 See, ante, claims against estate Deceased jiersons TRANSCRIPT Stenographer's notes, 1204 TRANSFER COMPANIES Custom and usage, 391 TRANSLATION Deposition in foreign language, 432 Of testimony of alien, 732 TRAVELING SALESMEN JUDICIALLY NOTICED. 754 TREATISES Books, 187 TRESPASS Burden of proof, 249 Subject in general, 1243 Assault and battery. 123 TRESPASS QUARE CLAUSUM FREGIT, 59 TRIAL Cross examination, 365 Default, 412 Demurrer to evidence, 418 Directing verdict, 442 Leading questions, 771 Order of proof, 889 Of!'er of evidence, 884 (Objections. 872 New trial, 363 Rebuttal, 1067 Admission of evidence after argument, 891 Striking out evidence, 1207 Stipulations, 1204 Demonstrative evidence, 416 Physical examination, 985 Exhibition of injury, 505 View by jury, 1268 Voir dire, 1272 Recalling witness. 1070 TROVER AND CONVERSION Burden of proof, 249 Title and possession, 1248 Conversion defined. 1249 Demand and refusal, 1250 Damages, 1251 TRUSTEE Admissions and declarations Against cestui que trust, 63 Declarations of cestui que trust, 1256 5.;. INDEX 1555 [references are to pages] TRUST FUNDS 15iir(k>n of proof, 249 TRUSTS Burden of proof, 249 Kesulting trusts, 1252 Not defeated by parol agreement, 1252 Consideration, 1253 Presumptions, 1253 Burden of proof, 1255 Parol evidence, 1256 Competency of widow to establish, 667 Express trusts Parol to create, 1256 Parol to aid, 1257 Weight and sufficiency of writings, 1258, 1259 Trusts ex maleficio, 1259 Admissions and declarations, 62 TRUTH Witness testifying to truth No presumption as to. 1044 Justification in libel and slander, 791, 794 u ULTRA VIRES Defense of must be specially pleaded, 138 Burden of proof, 349 Services of physician to emplove of corporation, 989 UNACKNOWLEDGED INSTRUMENT C'ertiliod copy of record, 334 Record, 168, 334, 1096 Execution. 476 UNAUTHENTICATED TRANSCRIPT Of foreign proceedings Forger V, 561 UNCERTIFIED COPY OF CERTIFIED COPY, 16 UNCOMPLETED ATTEMPTS Confidence game, 299 UNDERSTANDING OF WITNESS OF CONVERSATION Witness cannot be asked, 288 Libel and slander, 788 UNDUE INFLUENCE What constitutes, 1316 Burden of proof, 249 Fiduciary relations, 542 Duress, 461 Parent and child, 910 Wills, subject in general, 1316 to 1321 Admissions and declarations of grantor Not admissible to show, 54 UNFILED STIPULATION, 1205 UNIFORMITY OF USAGE When necessarv, 382 UNITED states' REVENUE COLLECTOR'S RECORD, 116 UNLAWFULNESS OF BUSINESS Opinion incompetent. 532 UNLIQUIDATED DEMAND Accord and satisfaction, 22 UNRECORDED DEED Declarations as against grantees, 53, 1240 Ejectment, 475 Notice, 1067, 1291 Copy, 333 155G INDEX [references are to pages] UNSIGNED WRITING W'oiyht as sliuwiiig real contract, 917 UNSWORN ANSWERS See answers, 112 Chancery, 262 Former pleadings, 570 USAGE See custom and usage, 382 USER Dedication, 402 Corporations, 343 Boundaries, 203 USURY Burden of proof, 249, 1260 Defined, 1260 Presiuuption's, 1260 Admissibility of evidence, 1261 Weigiit and sufficiency, 1261 Pleading, 1262 Laws of sister state, 731 V VALUE Judicial notice, 761 Admissions of ancestor, 1264 Proof in action against officer for failure to make levy, 1265 Subject in general, 1262 Cost, 1263 OflTers, 1263 Similar 'sales, 1263 Tax schedules, 1264 Market price, 823 Medical and surgical services As damages, 836 Action by physician, 987 Life tables, 796 Larceny, 770 Robbery, 1152 Eminent domain, 487 Recitals in deeds, 396 Dower, 455 Embezzlement, 482 Affidavit in replevin suit, 1131 Expert and opinion, 532, 533 VELOCITY See speed, 1191 VENEREAL DISEASE Bniu'h of promise. 208 VENDOR AND VENDEE See, ante, sales Grantor and grantee VENDOR'S LIEN Burden of proof, 249 VENUE Subject in general, 1265 VERACITY Lnpeachment by reputation for, 695 No presumption of veracity, 1044 VERDICT See directing verdict, 442 Impeachment of verdict by jurors, 863 Demurrer to evidence, 418 INDEX 1557 [references are to pages] VERIFICATION By plea, not evidence, 83, 420 Effect as to plea of non joinder. 8G7 Joint liability may be denied by unveritied i)lea, 958 Burden of proof, 237 Unverified plea admissible as admissions, 570 Effect of amending verified affidavit, 81 VIEW BY JURY Subject in general, 1268 Eminent domain, 498 VILLAGE Judicial notice, 743 Ordinan'ces, 892 Records, 1087 Sidewalk injuries, 1179 VISION Conclusions of -witnesses, 291 Experiments, 507 Expert. 528 VOICE Identity, 675, 1153 Telephone conversations, 1226 VOIR DIRE Subject in general. 1272 VOLUMES OF FOREIGN STATUTES When admissible. 559 To aid acknowledament. 20 VOLUMINOUS ACCOUNTS AND DOCUMENTS Best and sccondarv. 156 VOLUMINOUS RECORDS, 1084 VOLUNTARY CONVEYANCES Advancements in general. 72 In general, 129, 1005, 1016 Knowledge of grantee. 129 Imposing obligation, 130 Consideration, 302 Delivery, 414 Fiduciary relations. 542 Fraudulent conveyances, 581 Husband and wife. 666 From parent to child Fraud and undue influence, 910 Consideration, 911 Delivery and recordation, 911 Acceptance. 912 From child to parent Presumptions and burden of proof, 912 Presumptions, 1042, 1015 Trusts, 1252 Fraud Burden of proof, 227 Presumption from conveyance of entire estate, 581, 1038 By party indebted, 581 VOLUNTARY SETTLEMENTS Parol, 948 VOTER Declarations of voter, 318 Privilege. 323 Presumptions Identity, 1042 Right to vote, 1043 1558 INDEX [referencks are to pages] VOTER (Continued) Illegal voting, 1043 Party alliliation, 1043 VOTING As evidence of abandonment of homestead, 619 w WAGES, EARNING CAPACITY AND DOMESTIC RELATIONS injury to person, 1273 Wrongful death, 1276 Deceased support or sole support, 1278 WAGON Speed, 1194 Noise, 528 Initials on as evidence of ownership, 900 WAIVER Defined, 1279 Burden of proof. 250, 1279 Parol proof of waiver, 1280 Release in general, 1118 Rescission of contract, 1076 Objections, 878 Depositions Notice to take, 424 Of notice to produce documents, IGO, 172 Of notice in forcible entry and detainer, 553 Of incompeten'cy of witnesses. In general. 1337 Second wife in bigamy prosecutions, 178 Of incompetent testimony, 879 Immunity, 684 WARD See. ante, guardian and ward WAREHOUSEMEN liiudeii of proof as to negligence, 149 WARRANT Of officer Admissible in prosecution for homicide. 637 WARRANT FOR ARREST Admissible in action for false imprisonment, 539 WARRANTY False pretenses, 541 Burden of proof, 250 - Implied warranty, contracts of sale, 1281 Manufacturer as vendor, 1281 Sale by sample, 1282 Article supplied to order, 1282 For particular purpose, 1282 Vendor not manufacturer, 1282 Burden of proof and presumptions, 1283 Admissibility of evidence, 1283 Time of warranty, 1284 Parol to vary written contract, 945, 948, 1284 Pecf)U])meiit. 1285 WARRANTY DEED No presTunption as to release of homestead, 617 When not eviden'ce of title, 1242 WASTE Defined. 1286 Maintaining action, 1287 \\'eight and sufficiency, 1287 Justification, 1287 INDEX 1559 [refekexces are to pages] WATERS AND WATERCOURSES IJurdoii of piH)()t', :J3() Navigability, 1288 Opinions, 534 WEALTH Pecuniary circumstances, 969 Of adverse party Impeachment, 372 Of witness, cannot be considered, 357 WEAPONS Evidence concerning in prosecution for homicide, 627 In general, 396 Exhibiting in evidence, 417 Fire arms, 544 Experiments, 508 .Tudicial notice, 761 WEARING APPAREL P^xhibiting before jury, 417 WEATHER Official records, 1289 Seasons Judicial notice, 760 Memorandum. 840 WEIGHT AND SUFFICIENCY Civil actions in general, 1290 Criminal charge in civil suit. 1290 Reformation of instruments, 1291 Notice of unrecorded deed, 1294 Due care, 1291 Penal action, 1292, 976 Criminal prosecutions Evidence as a whole, 1291 Circumstantial evidence, 1291, 273 Justification or excuse, 1292 Expert and opinion, 1292, 515 Judicial notice, 1293 Certificate of acknowledgment, 28 Cloud on title, 278 Admissions and declarations, 66, 67, 68 WHISKEY Judicial notice, 761 WHISTLE Positive and negative evidence as to sounding of, 994 WHOLE OF UTTERANCE Admissions and conversation's, 1293 Confessions, 1292, 1293 Former testimony, 1294 Books of account. 1295 Bill of particulars, 1295 Depositions, 1295 Letters, 1296 Libelous publication, 1296 Written statements of party, 1296 Eff'ect of accompanying explanation, 1296 Homicide Admissions of accused. 641 ^Yhen does not justify admitting accusation, 641, 292 WIDOW Husband and wife. 665 Competency as witness, 1364 Dower, 454 Homestead, 617 1560 INDEX [references are to pages] WILLS Burden of proof, 250 Best and secondary evidence, 169 As proof of ownership, 904 As evidence of title, 1237 Lost wills. 811 Construction In general, 1297 Language of will, 1297, 1298 As to intestacy, 1298 Surrounding facts and circumstances, 1299 Declarations of testator, 1299, 1300 Ambiguity, 1301, 1302, 1303 Opinion evidence, 1303 Foreign laws, 1303 Memoranda, 1303 Judicial notice, 1304 Presumptions, 1304 Testamentary capacity What constitutes, 1305 Admissibility of evidence, 1306 Declarations of testator, 1307 Inequality of distribution, 1308 Former wills, 1308 Letters of testator, 1309 Letters of third persons, 1309 Appointment of conservator, 1309 Mental condition of blood relatives, 1309 Moral chara'cter, 1310 Opinion and expert evidence. 1310 Time of mental capacity, 1311 Burden of proof, 1312 Ability to transact business, 1313 Old age and physical suffering. 1313 Belief in Christian Science, 1.314 Belief in Swedenborgianism, 1314 Belief in Spiritualism, 1314 Prejudice and antipathies, 1314 Senile dementia, 1314 Suicide, 1314 Expert and opinion, 1315 Omission to name child, 1316 Holographic will, 1316 Undue influence What constitutes. 1316 Free agency, 1316 By whom exercised, 1316 When operative, 1316 Affection and persuasion, 1316 Inequality of distribution. 1317 Conduct of beneficiaries, 1317 Declarations of testator, 1317 Admissions of devisee, 1318 Prior wills, 1318 Letters, 1319 Contract's of testator, 1319 Illicit relations, 1319 Friendly relations, 1319 Opinions, 1319 Knowledge of contents. 1320 Circumstantial evidence, 1320 Allegations and proofs, 1320 Presumptions, 1320 INDEX 1561 [references are to pages] WILLS (Continued) Burden of proof, 1321 Weight and sufficieney, 1321 Execution 1-orm, 1321 Declaration. 1322 Signature, 1322 Acknowledgment, 1322 Necessity of witnesses, 1323 Presence of witnesses when testator signs, 1323 Presence of testator's 'signature. 1323 Presence of testator. 1324 Presence of other witnesses, 1324 Witness' knowledge of instrument, 1324 Attestation, 1324, 1325 Presumptions, 1325, 1320 Competency of subscribing witnesses, 132G, 1327, 1328 Revocation, 1328, 1329 Probate Admissibility of evidence, 1329 Proceedings in county court. 1330 Appeal from order admitting probate, 1330 Appeal from order denying probate, l^^^^O^ Impeachment of subscribing witnesses. 1330. 1331 Death, absence or incapacity of witness, 1331 Admissibility of attesting clause, 1331 Depositions, 1332 Weight and sufficiency, 1332, 1333 Establishment of lost wills, 1334 Contest in chancery Order of proof. 1334 Adniissibilitv of evidence, 1335 Affidavit of "^ subscribing witnesses, 1335, 1336 Order admitting to probate. 1336 Indorsement on will by judge, 1336 Certified copy of will. 1336 WITHDRAWAL OF TESTIMONY See striking out evidence. 1207 WITHHOLDING EVIDENCE Destruction, su])pression and fabrication of evidence, 437 Refusal or failure to produce evidence, 1112 Refusal to testify, 1114 WITNESSES Competency in general <• -.oo-r Presumptions and burden of proof, 1.^37 Objections. 1337 Determination of competency, 1338 Capacity and qualifications, atheist, 1339 Mentally defi'cient witnesses, 1339 Infants, 1339 Grand jurors, 1340 + i,aa Witnesses' names not indorsed on inrlittment, 16W Party in general, 1340 Competency of party as against insane pei-son, 1..40 Competency of parties and interested witnesses as against heirs, legatees, devisees, trustees and legal representatives In general. 1340 W'here deposition of deceased taken, 1343 Interest in general, 1344 Pecuniary interest. 1345 Time of interest, 1345 Dower interest, 1345 Disclaimer of interest, 1345 1562 INDEX [references are to pages] WITNESSES (Continued) IV'isonal rej)resentatives, 1346 Co-dcfcndant.s, 1346 8tockliol(lcrs and officers, 1347 Servants oi' employees, 1348 Trustees of college, 1348 Member of cliurcli or benefit society, 1348 Agent, 1348 Assignee of corporate sto'ck, 1349 Guardian and ward, 1349 Next friend, 1349 Donee, 1349 Partners, 1349 Grantees, 1349, 1350 Makers of negotiable instruments, 1350 Ademption, 1351 Advancements, 1351 Citation to discover assets, 1353 Dedication, 1352 Bill for accounting. 1352 Creditors' bill, 1352 Claims against estate, 1352 Action for wrongful death, 1353 Proceedings relating to mortgages, 1353 Bill to establish trust, 1354 Partition, 1355 Bill to set aside deed, 1357 Specific performance, 1358 Bill to contest will, 1359 Admissions and 'conversations of deceased. 1362 Facts occurring after death of ancestor,, 1362 Testimony adverse to interest, 1363 '' '" Admissions, conversations and transactions of deceased agent, 1363 Husband and wife, 1364 Admissions, conversations and acts, 1364 Competency of wife as witness, 1364 Competency of husband, 1367 Criminal actions, 1367 Examination and matters relating to Testimony of deceased witness, 570 Testimony of insane witness, 571 Opinions of ordinary witnesses, 509 Conclusions of witnesses, 285 Expert witnesses, 509 Non expert witnesses, 854 Compelling attendance of experts, 854 Contradiction and sustaining witness, 324 Refusal of witness to answer, 1114 Privilege of witness, 323, 682, 1051 Mode of ascertaining competency, 1272 Failure to call, presumptions from, 1113, 9 Biu'den of proof as to, 251 Presumj)tion of identity from name, 567 Compelling production of documents, 1051 Privileged communications. 1047 Exclusion and separation of witnesses, 504 Bias and liostility, 173 Credibility, 354 Ci'oss examination, 365 Redirect examination, 375 Former conviction, 566 Former testinuuiy, 570 Infants as witnesses, 1339 INDEX 1563 [references are to pages] WITNESSES (Continued) Intoxication as affecting credibility, 737 Limiting number of, 379 Truthfulness, no presumption, 1044 Recalling witness, 1070 Impeachment, 085 Incidental impeachment, 686 Refreshing memory of own witness. 686 Impeachment of absent witness. 687 Impeachment of impeaching witness, 699 Offer of evidence, 884 Offer of testimony of competent witness, 886 Order of proof, 889 Objections, 872 Leading questions, 771 Hypotlu'tical questions, 669 Hearsay, 607 Interpreter, 732 Legal conclusions, 775 Parties and persons interested as witnesses, 951 Absent witness, 8 Attorneys, 142 Deaf witness, 396 Detectives, 440 Arbitrators. 122 Rebuttal, 1067 Witness whose name alleged to be forged, 563 Stenographers, 1201 Voir dire, 1272 Present at trial, former testimony, 572 Secreted witness, 572 Questions tending to degrade witness, 370 Party not bound by testimony of witness required to call, 325 Contradictory statements not proof of fact, 687 Pardon, 906 Corroboration, 353 Accomplice, 19 Receiving evidence out of order, 891 Cumulative evidence, 379 Emphasis by re-examination. 381 Calling of eye witness by court. 365 Calling by court for cross examination, 361, 366 Cross examination by several counsels, 366 Privileged communications, 1051, 793 WORDS AND GESTURES As jirovocation Homicide prosecutions. 648 WORDS AND PHRASES Presunii)tions. 1368 Parol, 1368, 926 Abbreviations, 5 Judicial notice, 753 AmbiouitA'. 99 WORK AND SERVICES Assent, 130 Nature and time of employment, 1369 Presumption as to compensation. 1370 Establishment of express contract, 1370 Proof of implied contract, 1371 Proof as to amount of compensation, 1371 Value of services. 1372 Discharge of em]iloyee, 1374 Parent ^and child, 909 1564 INDEX [references are to pages] WRITINGS Whole of, 913 Recital?, 915 Parol proof of documents beyond jurisdiction, 156 Altoratioii, 93 WRITTEN EVIDENCE 8oo. ante, documeiitarv WRITTEN INSTRUMENTS Oti'cred to contradict witness, 369 Wlicii oflcrod by defendant, 892 WRONG DOERS \\lien binding one another by admissions, 308 WRONGFUL ACTS Similar acts See separate and similar offenses, 1168 X RAY Admissibility in general, 984 Admission of X ray of norma! member, 984 Preliminary proof, 985 Qiialiiication of X ray expert, 985 Result of observation by experts, 985 Weight, 985 Jury may take, 985 YEAR Judicial notice of seasons, 760 YEAST, 418 YOUTH As affecting competency, 1339 Contributory negligence, 701 Presumption as to capacity, 700 ZEAL OF WITNESS As affecting credibility, 358 I LAW LIBRARY OF LOS ANGELES COUNTY LAW LIBRARY UNIVi-iN-iTY OF CAUFaiS% LOS ANGELA UC SOUTHERN REGIONAL LIBRARY FACILITY AA 000 697 007 3 m r-5?f. '^\ r OF LOS ANGELES COUHl 4