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 SACKETT'S 
 
 INSTRUCTIONS 
 
 AND 
 
 REQUESTS FOR INSTRUCTIONS 
 
 IN JURY TRIALS. 
 
 ESPECIATXY ADAPTED TO THE PRACTICE OP THOSE STATES WHERE 
 SUCH INSTRUCTIONS ARE REQUIRED TO BE IN WRITING. 
 
 SECOND EDITION REVISED. 
 
 By martin L. NEWELL, 
 
 COUNSELOR AT LAW. 
 
 CHICAGO: 
 
 CALLAGE AN & COMPANY.
 
 Entered according to Act of Congress, in the year 1888, 
 
 By Callaghan & Company, 
 In the Office of the Librarian of Congress, at Washington. 
 
 T 
 1888 
 
 Stersotyp«d and Printed 
 
 by tno 
 
 Chic&go Legal Newi Company.
 
 PEEFACE TO THE FIEST EDITION. 
 
 In offering this work to the profession, it may not be im- 
 proper to state the considerations which induced its undertak- 
 ing, and the objects sought to be accomplished by it. JSTo 
 attempt has been made to write a formal treatise on the law 
 of instructions, or the practice of instructing juries; the design 
 has been rather to furnish the profession in those States where 
 instructions are required to be in writing, a work of practical 
 utility, by collecting together, in a somewhat connected form, 
 the decisions of the higher courts regarding the general form 
 and essential requisites of written instructions, to be given by 
 the court to the jury; and also, by furnishing carefully pre- 
 pared general instructions upon many of the more common 
 and intricate questions likely to arise in a general practice. 
 
 There is, perhaps, no other branch of the practice in which 
 a young practitioner feels the need of assistance so much as 
 in the preparation of his instructions, and requests for instruc- 
 tions to the jury. He generally commences the practice of his 
 profession not only without experience, but without even a 
 theoretical knowledge of the subject, and, in the absence of 
 some work of this kind, without any means of acquiring such 
 knowledge. If he refers to his usual text-books, he will find 
 stated the general principle of law which he seeks, together with 
 an account of its origin, history, mutations, contrary holdings 
 and the reasons upon which it is based, with illustrations drawn 
 from other systems of jurisprudence, while its exceptions, qual- 
 ifications and limitations are treated of in another chapter; all 
 of which may be proper enough for a learner, but it is of 
 little assistance in the attempt to give a concise and exact 
 statement of the whole of the law upon the point in question. 
 
 It not unfrequently happens that, for greater certainty, he 
 quotes, in his instructions, verbatim, from an opinion given by 
 the higher courts in a similar case, and ultimately finds, to his 
 
 (iii) 
 
 609844
 
 tv PEEFACE. 
 
 sur])rise, that while the language used by the court was proper 
 euouo'h, taken in connection with tlie facts in the case under 
 consideration, it was not intended to announce a principle of 
 universal application, and that, as applied to his own case, his 
 instructions are erroneous, although stated " in the very language 
 of the Supreme Court itself." 
 
 Judging from the number of new trials granted and cases 
 reversed, on the ground of technical and formal errors in the 
 instructions given, it would seem that the ease is not much 
 better with many of the older members of the profession. The 
 truth is, very few lawyers are able to write an elaborate set of 
 instructions upon intricate points of law amidst the distractions 
 of a hotly contested trial, without committing formal errors, 
 which cannot be detected by the judge who tries the case 
 in the time usually allowed for that purpose. The general 
 rule of law applicable to the case may be recalled readily 
 enough; but its exceptions and qualifications are apt to be 
 overlooked under such circumstances, and the practical result 
 is, that more new trials are granted, and more cases reversed, 
 on the ground of informality and technical errors in the in- 
 structions, than there are for tlie reason that either the counsel 
 or the court really mistook the principle of the law in the 
 case. In view of these facts it would seem that a work of 
 this kind is almost indispensable to the young practitioner, and 
 tliat to the experienced lawyer it may be of some assistance, 
 to say the least. 
 
 "While one instruction need not embody all the law of the 
 case, each instruction should, in itself, in a clear and concise 
 manner, correctly state the ])rinciple of law which it purports 
 to announce, with all its necessary e.\cej)tions and limitations, 
 without reference to the other instructions in the case. In the 
 following jjages are contained over two thousand general in- 
 structions, comj)lying with the above requisites, which cover 
 most of the more difficult points which are likely to arise in a 
 general i)ractice. It is, of course, impossible to antici])ate the 
 ever-varying facts of different cases, but it is believed that but 
 few cases will present themselves, involving difficult proposi- 
 tions of law, for which the necessary general instructions can 
 not be found in this work, or instructions embracing the prin- 
 cijiles desired to be enunciated, which can, by very slight
 
 I'EEFACE. V 
 
 verbal alterations, be adapted to the case in point, or at least 
 serve as a guide in drawing others adapted to the ])ecu]iar 
 facts of the case on trial. With any amount of aid from 
 others there will always be abundant opportunities for the ex- 
 ercise of learning and skill in drawing special instructions to 
 meet the facts of each particular case. 
 
 Upon some subjects the local statutes and decisions of the 
 courts of the several States diifer greatly, and it is manifestly 
 impracticable to adapt all the instructions here given to these 
 local laws and decisions; but as they are mostly of a general 
 nature, each practitioner, by slight alterations, can make them 
 conform to the statutes and practice of his own State. It 
 must be constantly borne in mind that the object of this w^ork 
 is not so nnicli to teach the law, as it is to assist in a correct 
 statement of it ; and it has been assumed that each lawyer 
 knows the laws peculiar to his own State. 
 
 When an instruction embodies a familiar principle of law, 
 it has not been deemed necessary to cite authorities in support 
 of it, but in all other cases one or more authorities are given. 
 
 It may not be safe to assume that no mistakes have been 
 made in attempting to state so many distinct propositions of 
 law, and upon so great a variety of subjects as are contained 
 in the following pages; but no pains or labor have been spared 
 to avoid errors, and it is confidently believed that not many 
 will be found. 
 
 F. Sackett. 
 
 Chicago, DeceTnber, 1880.
 
 VI PREFACE TO THE SECOND EDITION. 
 
 PREFACE TO THE SECOND EDITIO:^r. 
 
 The genera] favor with which the first edition of this work 
 lias been received, has induced the pnbh'slicrsto issue a second 
 and revised edition, in which such errors as have been discov- 
 ered are corrected, and snch improvements as have suggested 
 tliemselves, or been suggested by others, friends of the work, 
 are made. It is hoped that these improvements will render 
 the work of still greater service to tlie profession, and still 
 more deserving of credit. 
 
 An eminent jurist has said that instructions should be few 
 and those plain and simple as language can make them. 
 ("Walker, J., in Spynngdale Cem. Asso. v. Smithy 24 111., 480.) 
 But when we consider that, as a general rule, they are written 
 by lawyers in the bustle and hurry of the trial, during the 
 arguments of opposing counsel, often when the mind is tired, 
 and without previous study, it is not surprising that many of 
 them, as found in the reports, are not plain and simple as lan- 
 guage can make them. 
 
 In this edition, where it has been possible to do so without 
 changing the legal effect, all unnecessary and surplus words 
 have been stricken out, at all times kee])ing in view the object 
 of the instruction to convey to the minds of the jurors the 
 correct principles of the law to be applied by thetn to the evi- 
 dence in making up their verdict. 
 
 The form of the instructions given have been held to state 
 the law correctly in the cases where given, and may be easily 
 modified so as to make them applicable to other cases, bearing 
 in mind that an instruction is never proper unless based upon 
 the evidence in the case. 
 
 Martin L. Newell. 
 
 Minonk. Illinois^ May, 18S8.
 
 CHAPTER I. 
 
 mSTEUCTIONS— THEIR FOEMS AND EEQUISITES. 
 
 INTKODUCTION CHANGE OF THE COMMON LAW PEACTICE — INSTKUO- 
 
 TION TO BE IN WRITING — LAWS OF THE DIFFERENT STATES. 
 
 Sec. 1. statute mandatory — Instructions must be in writing. 
 
 2. Remarks by the Court calculated to influence the jury. 
 
 3. Writing may be waived. 
 
 4. Court may instruct without being asked. 
 
 5. Duty of the Court to instruct. 
 
 6. Instructions should be clear, accurate and concise. 
 
 7. Should not be arguiuentative. 
 
 8. Should be confined to matters of law. 
 
 9. Should not submit questions of law to the jury. 
 
 10. Degree of care in a given case is a question of law. 
 
 11. Abstract propositions of law not to be given, when. 
 
 12. Should not ignore facts proven. 
 
 13. Should not give undue prominence to portions of the evidence. 
 
 14. Should not give undiiS prominence to unimportant matters. 
 
 15. Should be given where there is any evidence, etc. 
 
 16. Must not assume controverted matters. 
 
 17. Matters not controverted may be assumed. 
 
 18. Presumptions of law may be assumed. 
 
 19. When all material allegations are proved. 
 
 20. Construction of contracts, for the Court. 
 
 21. Must be confined to the issues being tried. 
 
 22. Must be based upon the evidence. 
 
 23. One instruction may be limited by others. 
 
 24. Should be considered together. 
 
 25. Error in, will not always reverse, 
 
 26. Must be construed in connection with the evidence. 
 
 27. When error will reverse. 
 
 28. Should be harmonious. 
 
 29. Must require the jury to believe from the evidence. •, 
 
 30. Are not to be repeated, when. 
 
 31. Instructing as in case of non-suit. 
 
 32. Error in admitting evidence, obviated by. 
 
 33. When not obviated by, etc. 
 
 34. Effect of evidence limited by. 
 
 35. Jury may come in for further instructions. 
 
 36. Giving of further instructions discretionary. 
 
 37. Court may limit the time for instructions. 
 
 38. Jury judges of law in criminal cases, in some States. 
 
 a)
 
 mSTKUCTIONS. 
 
 mSTRUCTIONS. 
 
 In the orderly and regular progress of a cause before a jury, 
 in courts ^vhere the common law practice prevails, after the 
 cause has been argued by the counsel on both sides, the judge 
 proceeds to charge the jury orally, explaining to them the 
 nature of the action and of the defense, and the points in issue 
 between the parties, recapitulating the evidence which has 
 been produced upon both sides, and remarking upon it when 
 he deems it necessary or desirable, and directing or instruct- 
 ing the jury on all points of law arising upon the evidence ; 
 or, to quote the words of Chitty: '' It is the practice for the 
 judge at 7iisi prms not only to state to the jury all the evi- 
 dence that has been given, but to comment upon its bearing 
 and weight, and to state the legal rules upon the subject and 
 their application to the particular case, and to advise them as 
 regards the verdict they should give." 
 
 This common law practice, in many of the States, has been 
 changed by statute, so as to requij^ the court to instruct the 
 jury as to the law of the case only, and, either peremptorily 
 or at the request of either party, to reduce his charge to writ- 
 ing. The general character and scope of these changes in the 
 common law practice will appear from the following statutory 
 provisions of some of the States: 
 
 Illinois. — The court, in charging the jury, shall only instruct 
 as to the law of the case. Hereafter no judge shall instruct 
 the petit jury in any case, civil or criminal, unless such in- 
 structions are reduced to writing. 
 
 " And when instructions are asked which the court cannot 
 give, he shall on the margin thereof write the word, 'Re- 
 fused;' and such as he approves he shall write on the margin 
 thereof the word, 'Given;' and he shall in no case, after in- 
 structions are given, qualify, modify or in any manner explain 
 the same to the jury otherwise than in writing." R. S. 111., 
 1887, p. 976. 
 
 Colorado. — "In the trial of criminal cases in courts of record, 
 the instructions of the court to the jury shall be given in writ-
 
 TIIEIK FORMS AND REQUISITES. 9 
 
 in^, and before the ari^ument is made by counsel to the jxn-y, 
 if' the same shall be requested by the district attorney or by 
 the counsel for the defense." R. S. Colo., 1883, 362. 
 
 Minnesota. — " A party may, and, if required by the court, 
 shall, when the evidence is closed, submit, in distinct and con- 
 cise pro])Ositions, the conclusions of fact which he claims to 
 be established, or the conclusions of law which he desires to 
 be adjudged, or both; they may be written and handed to the 
 court, or, at the option of the court, oral, and entered in the 
 judge's minutes, but in either case they shall be entered, with 
 any exception that may be taken, if either party requires it." 
 R. S. Minn., 1878, 748. 
 
 Missouri. — " "Wlien the evidence is concluded, and before the 
 case is argued or submitted to the jury, or to the court sitting 
 as a jury, either party may move the court to give instructions 
 on any point of law arising in the cause, which shall be in 
 writing and shall be given or refused. The court may of its 
 own motion, give like instructions; and such instructions as 
 shall be given by the court, shall be carried by the jury to 
 their room for their guidance to a correct verdict according 
 to the law and evidence." E. S. Mo., 1879, 622. 
 
 Nebraska. — " It shall be the duty of the judges of the several 
 district courts in all cases both civil and criminal, to reduce 
 their charge or instructions to the jury to writing, before 
 giving the same to the jury, unless the so giving the same is 
 waived by the counsel in the case in open court, and so entered 
 in the record of said case; and either party may request 
 instructions to the jury on points of law, which shall be given 
 or refused by the court. All insti-uctions asked shall be in 
 w^'iting. 
 
 " If the court refuse a written instruction as demanded, but 
 give the same with a modification, which the court may do, 
 such modification shall not be by interlineation or erasure, but 
 shall be well defined, and shall follow some such characterizing 
 words as " changed thus, " which words shall themselves indi- 
 cate that the same was refused as demanded. 
 
 No oral explanation of any instruction authorized by the
 
 10 IKSTKUCTIONS. 
 
 ])recocHng sections shall, in any case, be allowed, and any in- 
 struction or charge, or any portion of a charge or instruction, 
 given to the jury by the court and not reduced to writing, aa 
 aforesaid, or a neglect or refusal on the part of the court to 
 perform any duty enjoined by the preceding sections, shall be 
 error in the trial of the case and sufficient for the reversal of 
 the judgment rendered therein." R. S. Neb., 1SS7, 330. 
 
 Kansas. — ""When the evidence is concluded and either party 
 desires special instructions to be given to the jury, such 
 instructions shall be reduced to writing, numbered and signed 
 by the party or his attorney asking the same and delivered to 
 the court; the court shall give general instructions to the jury, 
 which shall be in writing and be numbered, and signed by 
 the judge, if required by either party." When either party 
 asks for special instructions to be given to the jury, the court 
 shall either give such instructions as requested or positively 
 refuse so to do; or give the instructions with a modification in 
 such manner that it shall distinctly appear what instructions 
 were given in whole or in part, and in like manner those 
 refused, so that either party may except to the instructions as 
 asked for or as modified or to the modification or to the 
 refiisal. All instructions given by the court must be signed 
 by the judge and filed together with those asked for by the 
 parties as a part of the record. R. S. Kan., Chap. 80, § 275. 
 
 Dakota. — " The court, in charging the jury, shall only in- 
 struct as to the law of the case," and no court shall instruct 
 the petit jury in any case, civil or criminal, unless such instruc- 
 tions are reduced to writing; and when instructions are asked 
 which the judge cannot give, he shall write on the margin 
 thereof the word "Refused," and such as he approves he shall 
 write on the margin thereof the word "Given," and he shall 
 in no case, after instructions are given, qualify, modify or in 
 any manner explain the same to the jury, otherwise than in 
 writing; and all instructions asked for by counsel shall be 
 given or refused by the judge, without modification or change, 
 unless such modification or change be consented to by the 
 counsel asking the same. Dak. Comp. Laws, § 5048. 
 
 "The judge must then charge the jury; he may state the
 
 THEIR FORMS AKD REQUISITES. 11 
 
 testimony, and must declare the law, but inust not cliarge tlie 
 jury in respect to matters of fact; such charge must, if so 
 requested, be reduced to writing before it is given, unless by 
 tacit or mutual consent it is given orally, or unless it is fully 
 taken down at the time it is g;iven by a stenographic reporter, 
 appointed by the court." Ibid. 
 
 Arizona — Criminal Cases. — " In charging the jnry, the court 
 shall state to them all such matters of law as it may think 
 necessaiy for their information in giving their verdict. The 
 charges of the court to the jury shall be in writing, signed h}'- 
 the judge, and filed with the jtapers in the case, unless the de- 
 fendant consent, in open court, for the charges to be sriven 
 orall3\" Compiled Laws Arizona, p. 140. 
 
 Towa. — "When the argument is concluded, either party may 
 request instructions to the jury on points of law, which shall 
 be given or refused by the court. If the court refuse a writ- 
 ten instruction as demanded, but give the same with a modifi- 
 cation, which the court may do, such modification shall not 
 be by interlineation or erasure, but shall be well defined, etc. 
 
 " The court must read over all the instructions which it in- 
 tends to give, and none others, to the jnry, and must M-rite the 
 words ' Given,' or ' Eefused,' as the case may be, on the mar- 
 gin of each instruction. 
 
 "After argument, the court may also, of its own motion, 
 charge the jury, which sliall be exclusively in writing. The 
 coui't shall not make any oral explanation of any instruction 
 or charge." 
 
 Indiana. — "When the evidence is concluded, and either 
 ]^art_y desires special instructions to be given to the jury, such 
 instruction shall be reduced to writing, numbered and signed 
 by the party or his attorney asking the same, and delivered to 
 the court. 
 
 "When either party asks special instructions to be given to 
 the jury, the court shall either give each instruction as re- 
 quested or positively refuse to do so; or give the instruction 
 with a modification, in such manner that it sluill distinctly 
 appear what instructions were given in whole or in part, and
 
 12 INSTKUCTIONS. 
 
 in like manner those refused, so that either party may except 
 to the instructions as asked for or modified, or to the modifi- 
 cation. 
 
 "When the argument of the cause is concluded, the court 
 shall give general instructions to the jury, which shall be in 
 writing and signed by the judge, if required by either party." 
 
 Michigan. — " In all civil and criminal cases at law, circuit 
 courts, in cliarging or instructing juries, shall charge or instruct 
 them only as to the law of the case; and such charge or instruc- 
 tion shall be in writing, and may be given by the court upon 
 its own motion. 
 
 " Either party may present written requests for instructions 
 on any point of law arising in the case. Whenever instruc- 
 tions are asked which the court cannot give, he shall write in 
 the margin thereof ' Eefused ; ' and such instructions as the 
 court approves he shall designate by writing in the margin 
 thereof the word ' Given.' 
 
 "And the court shall in no case, orally qualify, modify or 
 in any manner explain the same to the jury." 
 
 Ohio. — " The court, after the argument is concluded, shall 
 immediately charge the jury, which, or any charge given 
 after the conclusion of the argument, shall be reduced to 
 writing by the court, if either ])arty ]-equest it, before the ar- 
 gument to the jury is commenced; and such charge, or any 
 charge or instruction provided for in this section, when so 
 written and given shall in no case be orally qualified, modified 
 or in any manner explained to the jury by the court." 
 
 Wisconsin. — " Upon the trial of every action, the judge pre- 
 siding shall, before giving the same to the jury, reduce to 
 writing and give as written his charge and instructions to the 
 jury; and all further and particular instructions given them 
 when they shall return after having once retired to deliberate, 
 unless a written charge be waived by counsel at the commence- 
 ment of the trial; and except that the charge or instructions 
 may be delivered orally when taken down by the official phono- 
 gra]jhic reporter of the court. Each instruction asked by 
 counsel to be given to the jury shall be given without change
 
 TIIEIE FORMS AND REQUISITES. 13 
 
 or modification, tlie same as asked, or refused in fnll. If any 
 judge shall violate any of the foregoing provisions, or make 
 pny comments to the jury upon the law or facts on the trial 
 in any action without the same being so reduced to writing or 
 taken down, the judgment rendered upon the verdict found 
 shall be reversed upon appeal or writ of error, upon the fact 
 appearing." 
 
 § 1. Statute M.andatory — Instructions must be in Writing, — A 
 
 judge on the trial of a cause has no authority to affect or 
 change the law as stated in written instructions, by any state- 
 ment not in writing. It is error for the court to instruct the 
 juiy orally, or to orally explain or modify an instruction. Ray 
 vs. Woolters, 19 111., 82; Head et al. vs. LayigwoHhy, 15 la., 
 235; JIa7Yl'm vs. IJelion, 50 Ind., 320; IlorioJivs. Willia)ns,2i 
 Minn., 187; State vs. Jojies, 61 Mo., 232; Mille?' vs. Bamp- 
 t07i, 37 Ala., 342; Widner vs. State, 28 Ind., 391; Strattan vs. 
 Paul, 10 la., 139; O'Doiinell-v^. Segar, 25 Mich., 367. 
 
 It is violation of the statute for the court to instruct the 
 jury orally as to the impropriety of certain modes of arriving 
 at their verdict. 111. Cent. Rd. Co. vs. Rammer^ 85 111., 526, 
 
 § 2. Remarks by the Court Calcnlated to Influence the Jury. — It 
 
 ^/n is not proper for a court to make remarks in the hearing of a 
 
 / jury calculated to influence their finding. SJcelly y&. Roland, 
 
 78 III, 438; Furliman vs>. Himtsville,b4: Ala., 263; Wannack 
 
 vs. Mayer, etc., 53 Ga., 162; Rasbrouck vs. Milwaukee^ 21 
 
 Wis., 217. 
 
 Remarks by the court to the jury touching tbe public neces- 
 sity of their agreeing, or otlier remarks calculated to hasten 
 , -, their verdict, however well meant, is a practice that cannot be 
 f sustained and is unwarranted by the law, and if made in a case 
 
 at law where the facts are sharply contested would vitiate the 
 verdict. FarnKam vs. Farnham, 73 111., 497. 
 
 Contra: Where a jury, after being out five hours, returned 
 into court and announced their inability to agree upon a ver- 
 dict, instructions upon their duty as to reconciling their views 
 and arriving at a verdict, if consistent with their consciences, 
 rather than that the parties should be put to the trouble and
 
 14 INSTKUCTIONS. 
 
 expense of trying the case again, nothing being said to tlie 
 prejudice of eitlier party, are held not erroneous. Pierce vs. 
 jRehfusSy 35 Mich., 53; Allen vs. Woodson, 50 Ga., 53. 
 
 § 3. In Writing may be Waived. — "While the statute requires 
 the instructions given to the jury shall be in writing, the par- 
 ties may waive that provision of the law, and when they do so 
 and consent that the court may instruct the jury orally, they 
 are estopped from afterwards objecting. Bates vs. Ball, 72 
 111., 108 ; Litzelman vs. Hoioell, 20 111. App., 588. 
 
 When oral instructions are not excepted to on that ground, 
 at the time, the error will be regarded as waived. State vs. 
 Sipult, 17 la., 575 ; Vamoey vs. State, 41 Tex., 630. 
 
 § 4. The Court may Instruct without Being Asked. — A judge 
 of the circuit court is at liberty to instruct, at his discretion, if 
 he reduces his instructions to writing, so that the jury can take 
 them with them in considering of their verdict. Brown vs. 
 The People, 4 Gilm., 439; Green vs. Lewis, 13 lil, 642; Chi- 
 cago vs. Keefe, 114 111., 222. 
 
 § 5. Duty of the Court to Instruct. — It is the duty of the 
 judge, when requested, to instruct the jury upon every point of 
 law pertinent to the issues. In preparing instructions each 
 party may assume any reasonable hypothesis in relation to the 
 facts of the case, and ask the court to declare tlie law as appli- 
 cable to it, and it is error to refuse an instruction so framed 
 because th^ case supposed does not include some other hypoth- 
 esis equally rational. People vs. Taylor, 36 Cal., 255 ; Hays 
 vs. Paid, 51 Penn. St., 134; Lyttle vs. Boyer, 33 Ohio St., 
 506; Ray vs. Goings, 112 111., 656. 
 
 Each party has the right to have the jury instructed upon 
 the law of the case clearly and pointedly, so as to leave no 
 reasonable ground for misapprehension or mistake; and if 
 the instructions of the court fail thus to instruct, it is error to 
 refuse one calculated to care the omission. Muldowney vs. 
 111. Cent. lid. Co.,Z'l Iowa, 176; Carpenter \^. State, 43 Ind., 
 371; Morris vs. Plait, 32 Conn., 75; Nels vs. State, 2 Tex., 
 280. 
 
 It is the duty of the judge to see that every case so goes to
 
 THEIK FOKMS AND REQUISITES. 15 
 
 the jury that they have clear and intelh'gent notions of the 
 points they are to decide, and to this end he should give 
 necessary instructions whether so requested by counsel or not, 
 and his failure so to do is held ground for a new trial where 
 the verdict was not one which eliectuated justice between the 
 parties. Owen vs. Oboen, 22 la,, 270; The State vs. Brainard, 
 25 la., 572. 
 
 It is the duty of the court to instruct the jury as to the 
 issues joined in the pleadings, and to determine from the 
 pleadings what allegations are admitted and what denied. 
 Pharo et al. vs. Johnson^ 15 la., 560; Potter vs. (7., P. 1. (& 
 P. P. Co., 46 la., 399; Dossier vs. Wisley, 32 Mo., 498. 
 
 § 6. Should be Clear, Accurate and Concise.— Instructions 
 should, in a clear, concise and comprehensive manner, inform 
 the jury as to what material facts must be found in order to 
 recover, or to bar a recovery. They should never be argu- 
 mentative, equivocal or unintelligible to t lie jury. Moshier 
 vs. Kitchel, 87 III, 19; Loeb vs. Wels, 64 Ind., 285. 
 
 Instructions should always be clear, accurate and concise 
 statements of the law as applicable to the facts of the case. 
 It was never contemplated, under the provision of the practice 
 act, that the court should be required to give a vast number 
 of instructions, amounting in the aggregate to a lengthy 
 address; such a practice is mischievous, and ought to be dis- 
 countenanced. A few concise statements of the law appli- 
 cable to the facts, is all that can be required, and all that can 
 serve any practical purpose in the elucidation of the case. 
 Adams vs. Smith, 58 111., 417; Trlsh vs. Newell, 62 111., 196; 
 State vs. Mix, 15 Mo., 153; KrausYs. Thieben, 15 111. App., 
 482. 
 
 § 7. Should not be Argnmentative. — It is erroneous to give 
 an instruction which is more in the nature of an argument 
 than a statement of the law governing the case, giving undue 
 prominence to facts relied upon, and reciting facts having no 
 tendency to support the theory presented. Ludwig vs. Sager, 
 84 111., 99; Thorpe vs. Growey, 85 111., 612; Peijnolds vs. 
 Phillips, 13 111. App., 557; Am. B. Soc. vs. Price, 115 111., 628.
 
 1 6 ' INSTRUCTIONS. 
 
 § 8. Should be Conftneil to Matters of Law. — The cliari^e of 
 the court to the jury should be strictly confined to matters of 
 law, and it is erroneous for the judge to tell the jury what 
 facts are proved and what are not. The court may instruct 
 the jury what is evidence, but not what it proves. Huss vs. 
 Steamboat^ etc., 9 la., 374; Thompsoji vs. Hovey^ 43 111., 198; 
 WamiocJc vs. Mayor^ etc.^ 53 Ga., 162. 
 
 § 9. Should not Submit Questions of Law to the Jury. — It is 
 
 error to give instructions to the jury which require them to 
 find and determine legal propositions. The court should 
 direct the jury what the law is on the facts which the evi- 
 dence tends to prove; or instruct them what the law is, if they 
 find the facts to be as alleged or claimed. Mitchell vs. The 
 Town of Fond du Lac, 16 111., 174; Hudson vs. St. Louis, etc., 
 R. Co., 53 Mo., 525; Thomas vs. Thomas, 15 B. Mon., 178. 
 
 When it appeared that there was a verbal contract between 
 the plaintiff and another, the question as to what the contract 
 was, was one of fact for the jury; but the question as to what 
 the legal effect of it was, was a question of law, and it was 
 error to submit both these questions to the determination of a 
 jury by instructions. WhitevQ. Murtland, 71 111., 250; Rohra- 
 lacJcer vs. Ware, 37 la., 85 ; Lapeer, etc., Ins. Co. vs. Doyle, 30 
 Mich., 159. 
 
 Whether a chattel mortgage is proved to have been duly 
 acknowledged and recorded is a question of law for the court, 
 and should not be submitted to the jury. Bailey vs. Godfrey, 
 54 111., 507. 
 
 In an action against a railroad company for damages for injury 
 to private property by the construction of its road upon a pub- 
 lic street, it was held to be error to instruct the jury to deter- 
 mine whether the company had constructed more tracks, or 
 u))on different lines, than were authorized by the city ordi- 
 nances. The number of tracks thus authorized was a ques- 
 tion of law, respecting which the court should have determined 
 the legal rights of the parties. Ingram et al. vs. The C, D. 
 k M. R. R. Co., 38 la., 669. 
 
 § 10. The Degree of Care Required in a Given Case is a 
 Question of Law. — The law prescribes the degree of care re-
 
 THEIR FORMS AND REQUISITES. 17 
 
 qnired in every class of cases — in other words, whether, in a 
 given case, a person is required to exercise slight care, reason- 
 able care or the utmost care and diligence, is determined by 
 the law, and is to be declared by the court; whether such care 
 has in fact been exercised in tlie conduct of a party, in a given 
 case, is a question of fact to be submitted to the jury. 
 
 In an action to recover for an injury caused by the neg- 
 ligence of the defendant, an insti-uction on the part of the 
 defendant that the plaintiff cannot recover unless the proof 
 shows that by the exercise of due or pivjjer care he could not 
 have averted the injury, is erroneous, as it submits a question 
 of law to the jury as to what is proper care^ and does not con- 
 fine them to the fact whether the plaintiff used ordinary care, 
 \yhich is all the law requires. StniUoii vs. Ce7it. Ciiq Horse 
 By. Co., 95 III, 25. 
 
 § 11. Abstract Propositions of Law Should not be Given, When. 
 
 — Instructions should be framed with reference to the circum- 
 stances of the case on trial, and not be expressed in abstract 
 and general terms, when such terms maj- mislead instead of 
 enlightening the jury. C. & A. Ed: Co. vs. Utley, 3S 111., 
 410; Parliman vs. Young, 2 Dak., 175, 
 
 Instructions containing mere abstract legal propositions 
 without any evidence to support them, are calculated to mis- 
 lead the jury, and should not be given. Stein vs. The Clty^ 
 etc., 41 la., 353; McNair vs. Piatt, 46 111., 211. 
 
 The giving of an instruction stating an abstract principle of 
 law in a criminal case is not an error, unless the principle 
 stated is erroneous. TJjpstone vs. The People, 109 III., 169. 
 
 § 12. Shoukl not Ignore Facts Proven. — When there is 
 evidence tending to prove a fact having an important bearing 
 upon the law of the case, though strongly contradicted, an 
 instruction is erroneous which ignores the existence of such 
 fact, and takes its consideration from the jury. Chicago P. 
 & P. Go. vs. Tilton, 87 III., 547. 
 
 When the court directs the attention of the jury to the 
 facts, it should refer them to all the facts bearing upon the 
 issues, so as to present the case fairly for both parties. Cash. 
 man vs. Cogswell, 86 111., 62 ; Snyder vs. The State, 59 Ind.,105. 
 
 ' 2
 
 18 IKSTKCCTIOXS. 
 
 An insti'uctlon wliicli iindcrtakos to give a summary of tlio 
 principal facts, but directs the attention of the jury only to 
 those favorable to one of the parties, leaving out of view all 
 that tends to illustrate the theory of the other party is objec- 
 tionable. Eocins vs. Gaorgey 80 111., 51; Newma^i^ vs. Mc- 
 Comas, 43 Md., 70. 
 
 § 13. Slioull not Give unlue Prominence to Portions of tlie Evi- 
 dence. — An instruction which singles out and gives undue 
 prominence to cei'tain facts, ignoring other facts proved and 
 of equal importance in a proper determination of the case, is 
 improper. Calef vs,. Thompso ft, '^IIW., 478; 'WestcJieatcr F. 
 L Co. vs. Earle, 33 Mich., 143; Jones vs. Jones, 57 Mo., 138; 
 Chose vs. Bahl Iron WorJcs, 55 Mich., 139. 
 
 § 14. Should not Give Prominence to Unimportant Facts. — An 
 
 instruction which calls special attention to particular points in 
 the evidence which are indecisive, and mere circumstances 
 bearing upon an issue of fact, and omits all reference to other 
 important circumstances in proof, is objectionable. Graves 
 vs. CoUoell, 9u 111., 012; Chesney v. Meadows, 90 111., 430. 
 
 § 15. Should be Given when there is any Evidence, etc. — ^When 
 the evidence tends to ju-ove a certain state of facts, the party 
 in whose favor it is given has a right to have the jury instruct- 
 ed on the hypothesis of such state of facts, and leave it to the 
 jury to find whether the evidence is sutlicient to establish the 
 facts supposed in the instruction. If the instructions are ])er- 
 tinent to any part of the testimony, they should, if correct, be 
 given without regard to the amount of evidence to which they 
 apply. Griel vs. Marks, 51 Ala., 566; State vs. Gibhons, 10 
 la., 117; Kendall vs. Brown, 74 111., 232; Jones vs. C (& iV. 
 W. R. Co., 49 Wis., 352. 
 
 "When an instruction is asked upon a question concerning 
 which there is no direct testimony, yet if there be any proof 
 tending to establish it, such question should be submitted to 
 tho jury, as the party asking the instruction is entitled to the 
 bencHt of whatever infei-ence the jury may think proper to 
 draw from the proof, however slight. Peoria Ins. Co. vs. 
 Anajjow, 45 111., 87; Flournoy vs. Andrews, 5 Mo., 513;
 
 THEIK FORMS AND EEQUISITES. 19 
 
 Camp vs. Phillips, 42 Ga., 289; C, & F. J. R. B. Co. vs. 
 Biiigenheimer, 116 111., 226. 
 
 § IG. Must not Assume Facts not Admitted. — It is the prov- 
 ince of the court to instruct the jury as to the law of the case, 
 and that of the jury to lind the facts proved by the evidence. 
 It is error for the court, in giving an instruction, to assume 
 that facts have been proved, or that a certain state of facts 
 exist. liussell vs. Minteer, 83 111., 150; Siier vs. The City, 
 etc., 41 la., 353; Slebert vs. Leonard, 21 Minn., 442; Jardieke 
 vs. Scropford, 15 Kans. 120; C. c& A. E. R. Co. vs. Robinson, 
 106 111., 142. 
 
 Instances: " In this case the plaintiff is entitled to recover 
 all damages proved to have been sustained by him on account 
 of the trespass committed by the defendant on plaintiff's 
 premises, as claimed in the declaration." Small vs. Brainerd 
 44 111., 355; Boddie vs. State, 52 Ala., 395; N. I. Life Ins. 
 Co., 94 U. S. Reports; Pech vs. Rltchey, 68 Mo., 114. 
 
 " If the jury believe from the evidence that Bond and Shinn 
 were together and acting in concert at the time of the assault, 
 they should find them equally guilty." Bond et al. v. The 
 People, 39 111., 26. 
 
 It will be seen that in the first of these examples, it is 
 assumed, as a fact, that a trespass had been committed, and in 
 the second, that an assault had been made. 
 
 An instruction commencing, " We will now direct your 
 attention to the question whether the defendant gave the 
 deceased strychnine with a crimiifal 'ntent" — held to be erro- 
 neous, as liable to be understood by the jury to assume the 
 disputed point, whether he gave her poison at all, leaving to 
 them only the question of intent. Snyder v. The State, 59 
 Ind., 105. 
 
 §17. Facts not Controverted maybe Assumed. — Wliere an 
 instruction assumes the existence of a fact in issue by the 
 pleadings, but which is admitted by the party objecting in his 
 testimony, and there is no evidence contradicting such admis- 
 sion, there will be no material error in giving such instruc- 
 tion. Tleartt vs. Rhodes, QQ 111., 351; ^\^eeks vs. Cottingham, 
 58 Ga., 559.
 
 20 INSTRUCTIONS. 
 
 If an instruction assumes tlie existence of facts not contro- 
 verted on the trial, and which under the circumstances, if 
 assumed, could not prejudice, there will be no error. Miller 
 vs. Kirhj, Ti 111., 242; Hughes vs. Monty, 24 la., 499; Davis 
 vs. The People, 114 111., 86. 
 
 It is often a matter of convenience, and avoids circumlocu- 
 tion, to assume the existence of certain facts about which the 
 parties are agreed, and neither party under such circumstances 
 can afterwards make such assumption aground of objection to 
 the instruction, Martin ^^. The People, 13 111., 341. 
 
 "When all the evidence on both sides tends clearly to prove 
 a fact, and if true does prove it, and there- is nothing to cast 
 doubt upon it, such fact may and generally should be assumed 
 as proved and the jury told that there is no evidence from 
 which they can find against the fact as proved. Druse vs. 
 ^Yheeler, 26 Mich., 189; Caldwell vs. Stephens, 57 111., 589; 
 Manrahan vs. The People, 91 111., 142; Ilauh vs. Brownell, 
 120 111., 161. 
 
 § 18. Instructions may Assume what the Law Presumes. — 
 When the circumstances proved are of such a character that 
 the law itself raises a presumption, the court may properly 
 instruct the jury to draw such inference. Ilerlelrath vs. 
 StooTcey, 63 111., 486; Griffin vs. C. R. I. & P. By. Co., 68 la., 
 638; 27 K W. Kep., 792. 
 
 In giving instructions, the judge should always abstain from 
 in any manner indicating an opinion as to the weight of evi- 
 dence, unless it is of that character which the law deems con- 
 clusive. Frame vs. Badger, 79 III., 441. 
 
 § 19. AVlien all Material Allegations are Proved. — Whenever 
 all the material facts necessary to enable the plaintiff to 
 recover are averred in the declaration, it is not improper for 
 the court to instruct the jury that, if the facts alleged in the 
 declaration liave all been proved, the plaintiff is entitled 
 to recover, unless the defendant has established by a prepon- 
 derance of evidence some one or more of the sjiecial defenses 
 pleaded. Amer. Cent. Ins. Co. vs. Pothschild, 82 111., 166. 
 
 An instruction which tells the jury, if the plaintiff lias made 
 out liis case as laid in his declaration, they must Hud for the
 
 THEIR FOKMS AND REQUISITES. 21 
 
 plaintiff, is not liable to the objection that it makes the jury 
 the judges of the effectof the averments in the declaration; it 
 merely empowers them to determine whether the proof intro- 
 duced sustains the averments made in the pleadings, which 
 they may well do. 0. & M. By. Co. vs. Porter, 132 111., 437. 
 
 § 20. Constrnction of Contracts. — It is the court that deter- 
 mines the construction of a contract. They do not state the 
 rules and principles of law by which the jury are to be bound 
 in construing the language which the parties have used in making 
 the contract. They give to the jury as matters of law what the 
 legal construction of the contract is, and this the jury are bound 
 absolutely to take. Eijser vs. Weissgerher, 2 la., 463; Lowry vs. 
 Megee, 52 Ind., 107; Kamjphouse vs. Gaffner, 73 111., 453; 
 Curtis vs. Marts, 14 Mich., 506; W. St. L. & P. Ry. Co. vs. 
 Jaggermon, 115 111., 407; Gage vs. Meyers, 59 Mich., 300. 
 
 What the terms of a contract are (if not in writing) is a 
 question of fact for the jury, but its meaning and legal effect 
 are questions of law for the court. Therefore it is not proper 
 in an instruction to submit to the jury the question of a party's 
 rights under a contract. Goddard vs. Foster, 17 Wall., 123; 
 ThomasvS). Thomas, 15 B. Mon., 178; Belden vs. Woodmansee, 
 81 111., 25; Lucas vs. Snyder, 2 G. Gr., 499. 
 
 Where a register's certificate of purchase was given in evi- 
 dence, it was held proper to instruct the jury that the certifi- 
 cate was evidence of title in the person to whom it was issued, 
 and that a judgment and execution against such jierson, to- 
 gether with a sheriff's deed thereunder, conveyed the title to 
 the grantee therein. While instructions should not assume 
 the existence of facts, still it is proper for the court to direct 
 the jury as to the legal effect of the evidence admitted. 
 Strihling vs. Prettyman, 57 III, 371; State vs. Delong, 12 la., 
 453. 
 
 If a contract is ambiguous in its terms it is the duty of the 
 court to determine what it means from the evidence, and 
 instruct the jury as to its meaning. Ogdeii vs. Kirhy, 79 III., 
 555; Stadden vs. Ilazzard, 37 Mich., 76; Am. Ins. Co. vs. 
 Butler, 70 Ind., 1. 
 
 AVhile instructions should not assume the existence of facts, 
 Vv'hich must be found by the jury, still it is proper for the
 
 22 INSTKUCTIONS. 
 
 court to direct tlic jury as to the legal effect of dociimentarj 
 evidence admitted. Stribling vs. Prettyman^ 57 111., 371; 
 Hanson vs. Eastman, 21 Miun., hO^; Lowry \B.Megee, 52 Ind., 
 107. 
 
 § 21. Slionld be Confined to the Issues Being Tried. — The in- 
 structions of the court should be restricted to the issues made 
 by the pleadings, and to the evidence. Nollen vs. ^Ylsner et 
 al., 11 la., 190; Iron Mount. Bank vs. IlurdocJc, 62 Mo., 70; 
 Hall vs. Strode, 28 K W. Rep., 312. 
 
 When the declaration alleges the personal negligence of the 
 defendant as the ground of liability, it is a fatal objection to 
 the instructions that they direct the attention of the jury to 
 other and different elements of liability. Ch. <£ Alt. M. li. 
 Co. vs. Ifoch, 72 111., 141; Cohan., C. & L E. R. Co. vs. 
 Troesch, 68 111., 545. 
 
 When the i^laintiff declai-es upon a completed sale, it is 
 erroneous for the court, in instructing for him, to submit to 
 the jury the question of an executory contract of sale. Seckel 
 vs. Scott, m 111., 106. 
 
 In an action on a warranty it would be error for the court 
 to instruct tlie jury as to what acts constitute fraud. Wallace 
 vs. Wren, 32 111., 146. 
 
 Wliere in an action upon an alleged express contract, evi- 
 dence was introduced without objection, putting the fact of 
 such contract in issue, it was held not to be error to instruct 
 tlie jury with reference to an express contract, even though 
 the pleadings put iir issue an implied contract only, llogers 
 vs. Millard, 44 la., 466. 
 
 § 22. Should be Based on the Evidence. — The instructions in 
 all cases should be based on the evidence, and not on the facts 
 of which there is no evidence. Eli vs. Tallman, 14 Wis., 28; 
 Hill vs. Canfield, 56 Penn. St., 454; Hoioe S. Mch. Co. vs. 
 0. Laymen, 88 111., 39; Atkins vs. Nicholson, 31 Mo., 488. 
 
 An instruction is properly refused when there is no evi- 
 dence tending to prove the hypothetical state of facts to 
 which it relates. C, B. & Q. R. R. Co. vs. Dickson, 88 111., 
 431. 
 
 It is error to give an instruction denying a party's right
 
 THEIR FOKMS AND REQUISITES. 23 
 
 uyton an assumed state of facts not shown by the evidence, 
 and calculated to give the jury to understand that, as a matter 
 of law, the party under the contract was bound in a certain 
 way not shown by the evidence. Harrison vs. Caehelin^ 27 
 Mo., 26; J^rantzws. Rose, 89 III., 590; SwarJc vs. Mchols, 24 
 Ind., 199; Borjie vs. Kreitzer, 46 Penn. St., 465. 
 
 An instruction, in an action of trespass for an assault and 
 battery, that the juiy is tlie sole judge of the amount of dam- 
 ages that the plaintitf should recover, without stating that the 
 damages should be estimated from the evidence, is erroneous. 
 Martin vs. Johnson, 89 111., 537. 
 
 The jury should not be. instructed in an action of trespass, 
 that they may give punitive damages if they believe from the 
 evidence the trespass was committed wantonly or willfully, 
 where there are no circumstances of wantonness or willfulness 
 to warrant such an instruction. ^Yaldron vs. Marcier, 82 111., 
 550; WengerxQ. Calder, 78 111., 275. 
 
 It is error to tell the jury that it is their duty to assess 
 damages if they believe in certain facts. Whether a plaintiff 
 has sustained damages, and if so, liow much, is a question to 
 be determined by the jury ; and it is projier for the court to 
 instruct them that if they believe certain facts they may, 
 or they are at liberty to, assess damages, but not that it is 
 their duty to do so. Chi. and iV. W. Ry. Co. vs. Ckisholm^ 
 79 111., 584. 
 
 § 23. One Tnstrnotion may be Limited by Others. — Although 
 an instruction, considered by itself, is too general, yet, if it is 
 properly limited by others given on the other side, so that it 
 is not probable it could have misled the jury, judgment will 
 not be reversed on account of such instruction. Carrington 
 vs. r. M. S. S. Co., 1 Cal, 475 ; Edwards vs. Cary, 60 Mo., 
 572 ; Kendall vs. Brown, 86 111., 387; Skiles vs. Caruthers, 
 88 111., 458. 
 
 § 24. S!ioiilil be Considered All Together.— It is the duty of 
 the jury to consider all the instructions together, and when this 
 court can see that an instruction in the series, although not 
 stating the law correctly, is qualified by others, so that the jury 
 were not likely to have been misled, the error will be obviated.
 
 24 IKSTEUCTIONS. 
 
 Anderson vs. ]VaIte)\ oi Mich., 113. State vs. Doiiavan^ 10 
 I^eb., 3G. 
 
 A charge to the juiy must be taken together, and it is not 
 necessary to insert in each separate instruction all the ex- 
 ceptions, limitations and conditions which are inserted in the 
 charge as a whole. People vs. Cleveland, _ 49 Cal., 578. 
 
 All the instructions should be considered together, and a 
 judgment will not be reversed because some one of them fails 
 to state the law applicable to the facts with sufficient qualifi- 
 cation, provi>ied tlie defects be cured in other instructions. 
 Rice vs. The City, etc., 40 Iowa, 638; The State vs. Maloy, 
 44 Iowa, 104. 
 
 § 25. Error will not Always Reverse. — Where it appears, 
 from the evidence, that a verdict is so clearly right that had 
 it been different the courts should have set it aside, such 
 verdict will not be disturbed merely for the reason that there 
 is error found in the instruction. Lnndy vs. Pierson, 83 111., 
 241; Burling vs. 111. Cent. Pul. Co., 85 111., 18; Phillips vs. 
 Ocmulgee, etc., 55 Ga., 633 ; People vs. Welch, 49 Cal, 177. 
 
 The refusal of instructions, which, though containing correct 
 propositions, could not, in view of all the facts developed 
 by the evidence, have prejudiced the party complaining,- will 
 not operate to reverse the case. Cross vs. Garrett, 35 Iowa, 
 480; Coolc et al. vs. Pohinson, 42 Iowa, 474. 
 
 § 26. ^Eiist be Constraed in Connection with the Evidence. — A 
 
 charge given by the court must be construed in connection 
 with the evidence in the case. It is sufficient if the instruc- 
 tions are correct when considered with reference to the case 
 iijion trial and the facts sought to be established. State vs. 
 Downer, 21 "Wis., 275; Huffman, vs. AcJdey, 34 M.O., 277. 
 
 § 27. When Error will Reverse. — When a case is close in its 
 lacts, or when there is a conflict in the evidence on a vital 
 point in the case, the rights of parties cannot be preserved 
 unless the jury are accurately instructed. Toledo, etc., Ry. Co. 
 vs. Shuclcman, 50 Ind., 42; Wabash Rd. Co. vs. HenA's, 91 111., 
 406. 
 
 An instruction which has a tendency to, and probably did, 
 mislead the jury when taken singly, is erroneous, even though
 
 THEIR FOEJIS AND KEQUISITKS. 2o 
 
 the instnictlons, Avlicn taken togctlier, embrace tlic law of the 
 case. Price ^•s. Mahoneij, 24 Icnva, 582 ; Pittshurg, etc., Bi/. 
 Co. vs. Krouse, 20 Ohio St., 223; Macl'ey vs. Peojple, 2 Col. 
 T., 13; Murray vs. Com., 79 Pu. St., 311. 
 
 § 28. Shojild 1)0 Harinonious. — The giving of a correct instrnc- 
 iion upon a point in the cate, will not obviate an error in an 
 instruction on the other side, when they are entirely variant 
 and there is nothing to show the jury which to adopt. 111. 
 Linen Co. vs. Hough, 91 111., G3 ; Yanslyck vs. Mills et al., 34 
 Iowa, 375. 
 
 One correct instruction will not always cure an erroneous 
 one. The court should harmonize the instructions, else they 
 are calculated to confuse and mislead the jury. Qiiinn vs. 
 ' Donovan, 85 111., 194. 
 
 Where one instruction states the defendant's liability more 
 strongly tlian the law warrants, and another of the series states 
 it correctly, and the two instructions relate to vital points in 
 issue, they are calculated to confuse the jury, and the latter 
 instruction will not cure the error. Steinmeyer vs. TJie Peo- 
 2?le, 95 111., 383. 
 
 § 29. Instructions must Require the Jury to Believe from the Evi- 
 dence. — An instruction which does not require the jury to 
 "believe from the evidence" the facts assumed in it, is objec- 
 tionable, even if the law in the instruction is correctly stated. 
 ParJier vs. Fisher, 39 111., 164. 
 
 It is not necessary that a jury should be told in each sentence 
 of an instruction that they should believe from the evidence. 
 If the lirst ]iart of the instruction contains this clause a jury 
 of intelligent men will not be misled if it is omitted in the 
 remaining portion. Gizler vs. ^Vitzel, 82 111., 322. 
 
 It is error to instruct the jury that it is necessary for the 
 plaintiff to prove a material fact, or that it should be made to 
 appear from the evidence '' to the satisfaction of the jury!'"' 
 The jury in a civil case are to decide facts upon the weight or 
 preponderance of the evidence, even though the proof does 
 not show such facts to their satisfaction. Stratton vs. Cent. 
 City Horse By. Co., 95 III., 25.
 
 26 IKSTKUCTIONS. 
 
 § 30. Instructions Need not be Repeated, When. — When the law 
 applicable to a case is given in clear and intelligible language, 
 the sole function of instructions is performed, and there is no 
 necessity for repeating the same idea in ditferent instructions, 
 varying only in form. The court is not only under no obliga- 
 tion to ])ermit a case to be argued through instructions, but it 
 is bound to prohibit it. A?u/e/'son vs. Walter, 34: Mich., 113; 
 Keelep vs. Siiipj)e, 86 111., 309; I. & C. R. Co. vs. Ilorst, 93 
 U. S., 91. 
 
 The right of a party to ask instructions must have some 
 limit, and the supreme court will not sustain an abuse of this 
 right. Fisher vs. Stevens, 16 111., 397; ^Vri<Jht vs. Ames, 28 
 Minn., 362. 
 
 It is not erroneous to refuse to give instructions asked for, 
 however correct or applicable, if they have in substance 
 already been given in the charge of the court. State vs. 
 Stanley, 33 la., 526; Cramer vs. The City of Burlington, 43 
 la., 315; Scott vs. Delaney, 87 111., 146; Crisman vs. McDon- 
 ald, 28 Ark., 8; Olive vs. The State, 11 :N'eb., 1. 
 
 § 31. Instnicting as in Case of Nonsuit. — It is not the prov- 
 ince of the court to decide upon the sufficiency of the testi- 
 mony pertaining to the facts in the case, nor to order the jury 
 upon the facts to find for either party. Oleson vs. Hendrich- 
 son, 12 la., 222; RoUnson vs. El. C. R. R. Co., 30 la., 401. 
 
 It is the settled practice never to instruct the jury as to the 
 weight of evidence. When conflicting, or tending to prove 
 the issue, however slightly, it must be left to tlie consideration 
 of the jury. But when it essentially varies from the plead- 
 ings and fails to sustain the issue, the court may, and should 
 when asked, exclude it from the consideration of the jury. 
 Excluding the evidence amounts to the same thing as instruct- 
 ing the jur}' to find for the defendant, as either course pro- 
 duces the same result. House vs. Wilder, 47 111., 510. 
 
 Where there is any one essential allegation of a declaration 
 whicli has no pi-oof tending to support it, it is the duty of the 
 court to exclude from the consideration of the jury all the 
 evidence in the case, or to charge the jury that there is no 
 evidence to support such essential allegation, and, for want of 
 Buch proof, to find for the defendant. Whether there is any
 
 THEIR FOEMS AND REQUISITES. 27 
 
 cvidcncG tending to prove any material allegation of a decla- 
 ration is a question of law for the court to determine. Pole- 
 vian, vs. Johnson^ 84 111., 269. 
 
 Contra: When there is no conflict in the evidence, the 
 court may direct the verdict or order a nonsuit. Greeniiuj 
 vs. Bishop, 39 "Wis., 552; Johnson vs. Moss, 45 Cal., 515; 
 Kelly vs. Ilendricl's, 26 Mich., 256; Am. Ins. Co. vs. Butler. 
 70 Ind., 1. 
 
 Where there is a mere scintilla of evidence to establish a 
 fact and the evidence is so overwhelmingly against it that the 
 court would set aside the finding of a jury, if based upon such 
 fact, then the question of the existence of such "fact need not 
 be submitted to the jury. Ilogan vs. Ciishing, 49 Wis., 169; 
 Co7n. of Marion Co. vs. ClarJc, 94 U. S., 278; May vs. /. C. 
 E. Co., 35 la., 585. 
 
 § 32. Error in Admitting Evidence, Obviated by. — If incom- 
 petent evidence is permitted to be introduced, which the court 
 afterwards instructs the jury not to consider, no prejudice is 
 wrought by its introduction. Cooli et al. vs. Robinson, 42 la,, 
 474. 
 
 § 33. When not Obviated by. — An error in the admission 
 of evidence is not obviated by an instruction to disregard such 
 evidence, unless the case is such that it clearly appears no 
 injustice or wrong has been done to the partv complaining. 
 Hoioe, etc., Co. vs. Rosine, 87 111., 105. 
 
 § 34. Effect of Evidence, Limited by. — If evidence is admitted 
 competent for one purpose which may have an improper 
 effect, the party aggrieved sliould ask an instruction explain- 
 ing its legitimate effect. Prior vs. White, 12 111., 261; Allison 
 vs. C. & N. W. R. R. Co., 42 la., 274. 
 
 Evidence admitted without objection cannot be excluded 
 from the consideration of the jury by instructions. Becker 
 vs. Becker, 45 la., 239. 
 
 Instructing that Evidence Tends to Prove. — An instruction 
 which tells the jury that they may consider certain evidence as 
 tending to prove a particular fact, making no comment as to
 
 2S INSTKUCTIONS. 
 
 its weight orefiFect, is not for that reason improper. Bcattle 
 V. mil, 60 Mo., 72. 
 
 § 35. Tlie Jury 3Iay Come, in for Further Instructions. — A jury 
 inay h(i called into court for further instructions, either by 
 agreement of counsel, or at their own request. State vs. 
 Pitts, 11 la., 343; Lee vs. Quirli, 20 111., 392; O'Shields vs. 
 State, 55 Ga., 696; J^arley vs. State, 57 Ind., 331. 
 
 If the jury should find an insufficient verdict, the court may 
 send them out under instructions to find formally and fully, 
 so as to determine the rights of the parties. Flinn vs. Bar- 
 low, 16 111., 39. 
 
 § 36. The Givin,2: of Further Instructions is in the Discretion of 
 the Court. — When the jury, in a criminal case, return into court 
 and say that they cannot agree, it is competent for the court, 
 of its own motion, to give them any additional instruction, 
 proper in itself, which may he necessary to meet the difficulties 
 in their minds. State vs. Pitts, 11 la., 313; Hogg vs. State, 7 
 Ind., 551. 
 
 A fresh discussion of the law or the evidence, on the part of 
 counsel in the presence of the jury, cannot be had, unless 
 allowed by the judge, in his discretion; nor is the judge 
 required to give additional instructions at the request of either 
 l^arty. In such matters much must be left to the discretion of 
 the judge. Nelson vs. Dodge, 116 Mass.. 367. 
 
 After a jury retire to consider their verdict and come into 
 court for further instructions, it is irregular to give such 
 instructions in the absence of a party. Davis vs. Pish, 2 G. Gr.. 
 417; O'Connor vs. Guthrie et al., 11 la., 80; Campbell vs. 
 Beclcett, 8 Ohio State, 210; Ilolerg vs. State, 3 Minn., 262. 
 
 § 37. Court May Tjiniit tlie Time^for Instructions. — Circuit 
 courts have the i)Ower, by reasonable and projjer rules, to pre- 
 scribe within what time, during the progress of tlie trial, tlie 
 instructions must be pj-esented to the court. P'rindiville vs. 
 The People, 42 111., 217. 
 
 § 38. In Criminal Cases the Jury are the Judges of the Law as well 
 as of the Facts of the Case. — In some states. — Wliile it is true, in
 
 TIIEIK FOIIMS AND REQUISITES. 29 
 
 the fullest sense, that a jury, in a criminal case,, are tlie judges 
 both of the fact and of the law, and may be so instructed by 
 the court, they should then be left to their own responsibility 
 alone to decide on the guilt or innocense of the prisoner, 
 giving him the beneft of all reasonable doubts, without any 
 reference to the possible future action of the court. Folk vs. 
 The People, 42 111., 331; Scknier vs. The People, 23 111., 17. 
 
 In the case of Schnier vs. The People, the court qualified 
 tlie general instruction that " the jury are the judges of the 
 law as well as of the facts," as follows: 
 
 " If the jury can say upon tlieir oaths that they know the 
 law better than the court does, they have the right to do so; 
 but before assuming so solemn a responsibility they should be 
 sure that they are not acting from caprice or prejudice; that 
 they are not controlled by their will or their wishes, but from 
 a deep and confident conviction that the court is wrong and 
 that they are right. Before saying this upon their oaths it is 
 their duty to reflect whether, from their habits of thought, 
 their study and experience, they are better qualified to judge 
 of the law than the court. If, under all these circumstances, 
 they are prepared to say that the court is wrong in its exposi- 
 tion of the law, the statute has given them the right." 
 Schnier vs. The People, 23 111., 17. See, also, Mullinix vs. 
 The People, 76 111., 211.
 
 CHAPTER II. 
 
 CREDIRILITT OF WITNESSES AND WEIGHT OF TESTIMONY INSTKUC- 
 
 TIONS APPLICABLE TO BOTH CIVIL AND CRIMINAL CASES. 
 
 Sec. 1. Credibility of witness and weight of testimony — Questions for 
 the jury. 
 
 2. Circumstances affecting the credit of the witness. 
 
 3. One credible witness entitled to more credit than a number of 
 
 others. 
 
 4. The jury have no right to disregard the testimony of a witness 
 
 without cause. 
 
 5. The credit of a witness depends upon two things. 
 
 6. When the jury may disregard the testimony of a witness. 
 
 7. Tlie jury should reconcile the testimony if possible. 
 
 8. A fact is proved if it can be reasonably inferred. 
 
 9. Willfully swearing falselv. 
 
 10. Impeachment of witnesses. 
 
 11. Bad reputation for truth. 
 
 12. Different statements out of court. 
 
 13. Contradictory statements out of court. 
 
 14. Contradictory statements out of court, explained. 
 
 15. Preponderance of the evidence. 
 
 16. Jury need not disregard the testimony of an impeached witness. 
 
 17. Negative evidence, what is not— Affirmative and negative 
 
 testimony. 
 
 18. Proof as to dates — Testimony as to, corroborated. 
 
 19. Burden of proof. 
 
 20. Parties. 
 
 21. Testimony of parties to be weighed by the jury. 
 
 22. Party failing to testJfy. 
 
 23. Corporation, witnesses for— How to be regarded. 
 
 24. Suits against — To be tried the same as others. 
 
 25. Verbal admissions — How weighed. 
 
 26. Admissions, all to be considered together— Jury may believe part 
 
 and reject part. 
 
 27. Admissions to be taken all together— How to be weighed. 
 
 28. When party not estopped by. 
 
 29. Offer to compromise — Party not bound by. 
 
 30. Continuance affidavit— Admissions in, how treated. 
 
 31. Party not bound by statements of his own witnesses. 
 
 32. Verdict to be determined by the evidence alone. 
 
 33. Statemeiits of counsel. 
 
 34. Witness excased from answering. 
 
 (30)
 
 CKEDI13ILITY OF WITNESSES. 31 
 
 CEEDIBILITr OF WITNESSES. 
 
 § 1. The Credibility of the Witnesses and the Weight of the 
 Testimony are Questions of Fact for the Jury. — The court instructs 
 the jury, that the credibility of the witnesses is a question 
 exchisively for the jury; and tlie law is, that where a number 
 of witnesses testify directly opposite to each other, the jury 
 are not bound to regard the weight of the evidence as evenly 
 balanced. The jury have a right to determine from the appear- 
 ance of tlie witnesses on the stand, tlieii- manner of testifying, 
 their apparent candor and fairness, their apparent intelligence, 
 or lack of intelligence, and from all the other surrounding 
 circumstances appeai-ing on the trial, which witnesses are the 
 more worthy of ci'edit, and to give credit accordingly. Wal- 
 lace ys. State, 28 Ark., 531; Ilalloivai/vs. Co7ii., 11 Bush, 341; 
 jStamj)o/sH vs. Steffens, 79 111., 3U3, State vs. Shields, 55 
 Conn., 256; Shellaharger vs. JSFefas, 15 Kan., 547; BaUoway 
 vs. Co7n., 12 Bush, 334; //. P. By. Co. vs. Ward, 4 Colo., 37; 
 Winchester vs. King, 48 Mich., 280. 
 
 You are the jftdges of the credibility of the witnesses, and 
 of the weight to be attached to the testimony of each and all 
 of them; and you are not bound to take tlie testimony of any 
 witness as absolutely true, and you should not do so, if yoa 
 are satisfied from all the facts and circumstances proved on 
 the trial, that such witness is mistaken in the matters testi- 
 fied to by him, or that, for any other reason, his testimony is 
 untrue or unreliable. Jxavariaugh vs. Wilso7i, 70 K. Y., 177; 
 Taylor vs. Randall, 3 Colo., 401. 
 
 You are instructed, that you are the judges of the credit 
 that ought to be given to the testimony of the different wit- 
 nesses, and you are not bound to believe anything to be a fact 
 because a witness has stated it to be so — provided you believe, 
 from all the evidence, that such witness is mistaken or has 
 knowingly testified falsely. Durant vs. The Peovle, 13 Mich., 
 351; See Wanchette vs. WanJess, 3 Colo., 174. 
 
 § 2. Circumstanees Affecting the Credit of a AVitness. — The 
 
 jury are instructed that, in determining the weight to be 
 given to the testinionj^ of the different witnesses in this case,
 
 S2 ■WEIGHT OF TESTlilONY. 
 
 tlie jury are authorized to consider the relationship of the 
 witnesses to the parties, if the same is proved; their interest, 
 if any, in the event of the suit; their temper, feeling or bias, 
 if any has been shown; their demeanor while testifying ; their 
 apparent intelligence, and their means of information; and to 
 give such credit to the testimony of each witness as, under all 
 the circumstances, such witness seems to be entitled to. Atr- 
 merman vs. Teetei\ 49 111., 400; Zampe vs. Kennedy^ 60 "Wis., 
 110. 
 
 In determining the issues in this case, we should take into 
 consideration the whole of the evidence, and all the facts and 
 circumstances proved on the trial, giving to the several parts 
 of the evidence such weight as you think they are entitled to. 
 And in determining the weight to be given to the testimony 
 of the several witnesses, you sliould take into consideration 
 their interest in the event of the suit, if any such is proved ; 
 their conduct and demeanor while testifying ; their apparent 
 fairness or bias, if any such appears ; their appearance on the 
 stand ; the reasonableness of the story told by them ; and all 
 the evidence and circumstances tending to corroborate or con- 
 tradict such witnesses, if any such are proved. £vans vs. 
 Lipscomb, 31 Ga., 71; FrencJi vs. Millard., 2 Ohio St., 44 ; 
 8ellar vs. Clelland, 2 Colo., 539. 
 
 The court instri.cts you, that in passing upon the testimony 
 of the witnesses for the defendant, you have a right to take 
 into consideration any interest which such witnesses may feel 
 in the result of this suit, if any is proved, growing out of their 
 relationship to the defendant or otherwise, and to give to the 
 testimony of such witnesses only such weight as you think it 
 entitled to, under all the circumstances proved on the trial. 
 
 If you believe, from the evidence, that any witness has 
 testified under a fear of losing his employment or a desire to 
 avoid censure or a fear of offending, or a desire to please his 
 employer, then such fact may be taken into account by you in 
 determining the degree of weight which ought to be given to 
 the testimony of such witness ; and, in such case, you have a 
 right to judge of the effect, if any, likely to be produced upon 
 the human mind by such feelings or motives, and how far 
 such feelings or motives, on the ]:art of a witness, may tend to 
 warp his judgment or pervert the truth; and, after applying
 
 ^ 
 
 CKEDiaiLlTY OF WITNESSES. 33 
 
 yunr own knowledge of human nature and of llio plulosop]i3'' 
 of tlie human mind to the investigation of the subject, are to 
 judge of tlie weight which ought to be given to the testimony 
 of such witness, taking tlie same in connection with all the 
 other evidence in the case. 
 
 AVhen witnesses are otherwise equally credible, and their 
 testiniony otherwise entitled to equal weight, greater weight 
 and credit should be given to those whose means of informa- 
 tion were superior; and also to those who swear affirmatively 
 to a fact, rather than to those who swear negatively, or to a 
 want of knowledge or want of recollection. Pool vs. Devers^ 
 30 Ala., 672; Blizzard vs. Applegate^ 61 Ind., 368. 
 
 In weighing the testimony of any or either of the witnesses 
 in this case, you may regard the apparent capacity and intel- 
 ligence of such witness, and judge from the evidence whether 
 he was able to see and understand the transaction, and alsc- 
 whether he was attentive or careless, or apparently prejudiced 
 or dispassionate; and also wliether, jutlging from the evidence, 
 he has any sinister motive that might lead liim to fabricate 
 that wliicli he did not see. People vs. Bocline, 1 Edm. Sel. 
 Cas., 36. 
 
 § 3. One Crertible Witness may be Entitled to More Credit tlian ' 
 a Number of Others. — The court instructs you that the testimony \ 
 of one credible witness may be entitled to more weight than 
 the testimony of many others, if, as to those other witnesses, 
 you have reason to believe, and do believe, from the evidence | 
 and all the facts before you, that such other witnesses have 1 
 knowingly testified untruthfully, and are not corroborated by \ 
 other credible witnesses, or by circumstances proved in the 1 
 case. Green vs. Taney, 4 C. L. 11., 52 e ; Rudolph vs. Lane, \ 
 57 Ind., 115; Blerhach vs. Goodyear Rah. Co., 54 Wis., 208. J 
 
 § 4. The Jury have no Right to Disreji:nrd the Testimony of any 
 Witness without Cause. — You are instructed, that if the testi- 
 mony of \ witness appears to be fair, is not unreasonable, and 
 is consistent with itself, and the witness has not been in any 
 manner impeached, then you have no right to disregard the 
 testimony of such witness from mere caprice or without 
 cause. It is the duty of the jury to consider the whole of the 
 3
 
 3± WEIGHT OF TESTIMONY. 
 
 evidence, and to render a verdict in accordance with the 
 weiglit of all the evidence in the case. City Baiik, etc., vs. 
 Kent, 57 Ga., 2S3; Smith vs. Grimes, 43 la., 356; RocJcford, 
 R. 1. (& jSt. L. Rd. Co. vs. Coultars, 67 111., 398; Oliver vs. 
 Fate, 43 Ind., 132. 
 
 While it is the duty of the jury to carefully scrutinize and 
 dispassionately weigh the evidence of all the witnesses in the 
 case, still it is your sworn duty to give proper credit to the 
 evidence of each and all of the witnesses, and, if possible, to 
 reconcile all of the evidence in the case with the presumi)tion 
 that each witness has intended to speak the truth, unless by 
 their manner of testifying on the witness stand, or by incon- 
 sistent statements sworn to, or by testimony inconsistent with 
 otiier credible evidence in the case, 3'ou are led to believe 
 that the testimony of some one, or more, of the witnesses is 
 untruthful or unreliable, or unless youare led to believe, from 
 a manifestation of interest, bias or prejudice, that such wit- 
 ness or witnesses have been inclined to exaggerate, color or 
 suppress the truth, or unless they have been impeached in 
 some of the modes known to the law, as explained in these 
 instructions. Chester vs. State, 1 Tex. App., 702; Jones vs. 
 State, 48 Ga., 163. 
 
 § 5. The Credit of a AVitness Depends upon Two Tilings : His 
 
 ability to know what occurred and his disposition for telling 
 the truth as to the occurrence. The statement of a witness 
 having superior opportunities for knowing what took place 
 and superior intelligence and memory, other things being 
 equal, is entitled to the greater weight before the jury. 
 
 One oi the tests for determining the credibility of a witness 
 is his interest in the result of the suit. As a general rule, a 
 witness who is interested in the result of a suit will not be as 
 honest, candid and fair in his testimony as one who is not so 
 interested, but the degree of credit to be given to each and 
 all of the witnesses is a question for the jury alone. Carver 
 vs. Louthain, 38 Ind., 530. ^ 
 
 § 6. Wlien the .Jury May Disregard the Testimony of a Witness. 
 
 — The jury are instructed, that in determining the questions 
 of fact in this case, they should consider the entire evidence
 
 CREDIBILITY OF WITNESSES. 35 
 
 introduced by the respective parties; but tlie jury are at lib- 
 erty to disregard the statement of all such witnesses, if any 
 there be, as have been successfully impeached, either by 
 direct contradiction or by proof of having made different 
 statements at other times, or by proof of bad reputation for 
 truth and veracity in the neighborhoods where they live — 
 excejit in so far as such witnesses have been corroborated by 
 other credible evidence, or by facts or circumstances proved 
 on the trial. Miller vs. The People^ 39 111., 458; Bowers vs. 
 The People, 74 111., 418; 0' Roxirle vs. O Rourhe, 43 Mich., 48. 
 
 § 7. The Jury Should Reconcile the Testimony, if Possible. — It 
 
 is the duty of the jury in passing upon the credibility of the 
 testimony of the several witnesses, to reconcile all the differ- 
 ent parts of the testimony, if possible. It is only in cases 
 where it is palpable that a witness has, deliberately and inten- 
 tionally, testified falsely as to some material matter, and is not 
 corroborated by other evidence, that a Jury is warranted in 
 disregarding his entire testimony. Although a witness may 
 be mistaken as to some part of his evidence, it does not follow, 
 as matter of law, that he has willfully told an untruth, or 
 that the jury would have the right to reject his entire testi- 
 mony. Gotlieb vs. Haihnayi, 3 Col., 53. 
 
 It is the duty of the jury to consider carefully all the testi- 
 mony in this case bearing upon the issues of fact submitted to 
 them, and, if possible, to reconcile any and all apparently con- 
 flicting statements of the witnesses, and if you find it practi- 
 cable to deduce from the evidence any theory of the case which 
 will harmonize the testimony of all the witnesses, it will be 
 your duty to adopt that theory, rather than one which would 
 require them to reject any of the testimony as intentionally 
 false. Rudolph vs. Lane, 57 Ind., 115. 
 
 You are further instructed, that if, after a full and fair con- 
 sideration thereof, you are unable to reconcile the statements 
 of all the witnesses in relation to the matters pertinent to the 
 issues submitted to you, then it will be your duty to consider 
 on which side is the preponderance of evidence, and to find 
 your verdict in accordance therewith. Taylor vs. State, 5 
 Tex. App., 1.
 
 36 "WEIGHT OF TESTIMONY. 
 
 § 8. A Fact is Proved if Reasonably Inferred. — The jury are 
 iustnicted that in detennining what facts are proved in this 
 case they should carefully consider all the evidence given 
 before them, with all the circumstances of the transaction in 
 question as detailed by the witnesses, and they may find any 
 fact to be proved which they think may be rightfully and rea- 
 sonablv inferred from the evidence given in the case, althous^h 
 there may be no direct testimony as to such fact. Brims vs. 
 State, ^^ Ind., 428. 
 
 § 9. Willfully Swearing Falsely. — If the jury believe, from 
 the evidence, that the witness A. B. has willfully sworn falsely 
 on this trial as to any matter or thing material to the issues 
 in the case, then the jury are at liberty to disregard his entire 
 testimony, except in so far as it has been corroborated by 
 other credible evidence, or by facts and circumstances proved 
 on the trial. Pierce vs. State, 53 Ga., 365; State vs. Kelltr- 
 man, 15 Kans., 133; Mead y^. McGraio, 19 Ohio St., 55 (but 
 see Jo7ies vs. The Peojyle, 2 Colo., 359); Iloge vs. Peo2)le, 117 
 111., 45. 
 
 § 10. Impeachment of Witnesses. — If the jury believe, from 
 the evidence, that the witness A. B. has been successfully im- 
 peached on this trial, or that lie has willfully sworn falsely as 
 to any matter or thing material to the issues in this case, then 
 the jury are at liberty to disregard his entire testimony, 
 except in so far as it has been corroborated by other credible 
 evidence, or by facts and circumstances proved on the trial. 
 Bowers vs. The People, 74 111., 418; Gill vs. Crosby, 63 111., 
 190; Gotlieb vs. Ilartman, 3 Colo., 60; Mhiich vs. The People, 
 8 W. C. K, 588. 
 
 § 11. Bad Repntation for Truth, etc. — The court further 
 instructs the jury, that if they believe from the evidence that 
 the witness A. B. is a person of bad reputation for truth and 
 veracity in the neighborhood were he resides, then, as a mat- 
 ter of law, this fact tends to discredit his testimony, and the 
 jury may entirely disregard it, except in so far as he is corrobo- 
 rated by other credible testimony, or by facts and circum- 
 btanccs proved on the trial.
 
 CREDIBILITY OF WITNESSES. 37 
 
 The court instrnct? you, that one of the modes recognized 
 bv law for impeaching the veracity of a witness, is tlie intro- 
 duction of ])ersons us witnesses who testify that they are 
 acquainted with tlie general reputation for truth and veracity 
 of the person sought to be impeached, in tli(i neighborhood in 
 which he resides; and, if tlie jury believe, from the evidence 
 in this case, that the general reputation of the witness A. B. 
 for truth and veracity in the neighborhood where he resides, 
 is bad, then the jury have a right to disregard the whole of 
 his testimony, and to treat it as untrue, exce])t where it is cor- 
 roborated by other credible evidence, or by facts and circum- 
 stances proved on the trial. 1 Greenl. on Ev., § 461. 
 
 "While tlie law permits the impeachment of a witness by 
 proving his general reputation for truth and veracity in the 
 neighborhood where he resides to be bad, yet, if you believe 
 that the jilaintiff, while on the stand, gave a truthful, ciindid 
 and honest statement of the facts and circumstances surround- 
 ing the transaction in question, then the jury should not dis- 
 regard his testimony, but you should give it such faith and 
 credit as in your opinion it is entitled to." Roy vs. Gomgs, 
 112 111., 6G6. 
 
 § 12, Different Statements Out of Court. — The court instructs 
 the jury, that one of the modes of impeaching a witness, is by 
 showing that he has made statements out of court at variance 
 with his statements on the witness-stand; and if the jury 
 believe from the evidence that the witness A. B. has made 
 statements at another time and place at variance with his evi- 
 dence in this case, regarding any material matter testified to 
 by him, then it is the province of the jury to determine to 
 what extent this fact tends to impeach, either his memory or 
 liis credibility, or detracts from the weight which ought to 
 be given to his testimony. Craig vs. liohrer\ 63 111., 325; 
 Glaze vs. Whitley, 5 Oreg., 164; 1 Greenl. on Ev., § 462. 
 
 The credit of a witness may be impeached by proof that he 
 has made statements out of court contrary to what he has tes- 
 tified on the trial, and if you believe from the evidence that 
 the witness A. B. made statements out of court on, etc., — to 
 etc., — contrary to what he has sworn upon the trial upon any 
 material matter, then these contradictory statements would
 
 38 WEIGHT OF TESTIMONY. 
 
 tend to impeach the witness, and you would be justified in 
 rejecting liis testimony, if, from all the other evidence in the 
 case, you believe such testimony to be untrue. 
 
 § 13. Contradictory Statements Out of Court. — If the jury 
 uelieve from the evidence that the witness A. B., before tes- 
 tifying in this case, has made any statements out of court con- 
 cerning any of the material matters, materially different and 
 at variance with what he has stated on the witness-stand, then 
 the jury are instructed by the court that these facts tend to 
 impeach either the recollection, or the truthfulness of the wit- 
 ness, and the jury should consider these facts in estimating the 
 weight which ought to be given to his testimony. 1 Greenl. 
 Ev., § 462; Glaze vs. Whitley, 5 Oreg., 164. 
 
 § 14. Contradictory Statements Out of Court Explained. — The 
 court instructs the jury, that if they believe that the witness 
 A. B., out of court and not under oath, stated to the defend- 
 ant and others, that he knew nothing about the matter, etc. — 
 and that the defendant had told him nothing, and that the 
 witness, when under oath, stated that his reason for so saying 
 was, because lie feared to offend the defendant and others, and 
 also stated on oath that the defendant did tell him, etc. — then 
 the fact of the witness making the statement out of court at 
 variance with what he stated under oath, does not necessarily 
 discredit the testimony of the witness under oath; the jury 
 should judge of the credit of the witness from his whole 
 statement, and give his evidence such weight as they believe 
 it entitled to, in view of all the evidence given on tlie trial. 
 
 § 15. Preponderance of Evidence. — ^The jury are instructed, 
 that the preponderance of evidence in a case is not alone 
 determined by the number of witnesses testifying to a partic- 
 ular fact, or state of facts. In determining upon which side 
 the preponderance of the evidence is, the jury should take into 
 consideration the opportunities of the several witnesses for 
 seeing or knowing tiie things about which they testify; their 
 conduct and demeanor while testifying; their interest or lack 
 of interest, if any, in the result of the suit; the j)robability or 
 improbability of the truth of their several statements, in view
 
 CKEDIUILITY OF WITNESSES. Oy 
 
 of all tlie other evidence, facts and circumstances proved on 
 the trial; and from all tliese circumstances determine upon 
 which side is the weight or ])reponderance of the evidence. 
 Mayor vs. Mead, 83 111., 19; TF/w^a/i'^r vs.P«^'7i'(?/',42 la., 585; 
 McRae vs. Laurence^ 75 N. C, 289; Riley v. Butler, 3G Ind., 
 51. 
 
 The court instructs you, as a matter of law, that where two 
 witnesses testify directly opposite to each other on a material 
 point, and are the only ones tliat testify directly to the same 
 point, you are notbound to consider the evidence evenly balanced 
 or the ]Mjint not proved; you may re^^ard all the surrounding 
 facts and circumstances proved on the trial, and give credence 
 to one witness over the other, if you think such facts and cir- 
 cumstances warrant it. Miller vs. Balthasser, 78 111., 302; 
 Durant vs. Rogers, 87 111., 508; Lawrence vs. Maxwell, 58 
 Barb., 511; Delvee vs. Boardinan, 20 la., 446; Johnson vs. 
 Wddden, 32 Me., 230. 
 
 The preponderance of evidence does not consist alone in the 
 greater number of witnesses testifying to a particular fact or 
 state of facts. The apparent consistency, fairness and con- 
 gruity of the evidence, and the reputation of the witnesses for 
 truth and veracity, where this is shown by the evidence, are 
 all facts to be considered by you in determining the preponder- 
 ance of the evidence, on either side. Rudol-ph vs. Lane, 57 
 Ind., 115. 
 
 You are instructed, that although the preponderance of the 
 evidence is not always determined by the number of witnesses 
 testifying in a case, yet, if in a case there are only one or two 
 witnesses who testify to a given state offsets, and six or seven 
 witnesses of equal candor, fairness, intelligence and truthful- 
 ness, and equally well corroborated bj' all the other evidence, 
 and who have no greater interest in the result of the suit, testify 
 against such state of facts, then the preponderance of the evi- 
 dence is determined by the number of witnesses. 
 
 You are instructed, that it does not necessarily follow that 
 a plaintiff has failed to establish his case (or a defendant his 
 defense) by a preponderance of proof, because he has testified 
 to a state of facts which are denied by the testimony of the 
 defendant. In such a case, in arriving at the truth, you have 
 a right to take into consideration every fact and circumstance
 
 40 WEIGHT OF TESTIMONY. 
 
 proven on the trial, sncli as the situation of the parties; their 
 acts at the time of the transaction and afterwards, so far as 
 they appear in evidence; their statements to third parties 
 in relation to the matters in question, as well as their state- 
 ments to each other in the presence of third parties, if any 
 such statements have heen proved; also their appearance on 
 the witness stand, and their manner of testifying in the case. 
 Mathews vs. Story, 54 Ind., 417; Klassen vs. Reigei\ 26 Minn., 
 59; Provmttain vs. Tindale, 80 Penn. St., 295; tStamj)ofsTci 
 vs. Steffins, 79 111., 303; K. P. R. Co. vs. Little, 19 Kans., 
 267. 
 
 When a witness swears that a certain conversation did take 
 place (or to a certain state of facts), and an other equally credi- 
 hle witness, with equal opportunities for knowing, testilies that 
 the conversation did not take place (or to a contrary state of 
 facts), if there is nothing in the case tending to corroborate 
 one witness more than the other, then in law, such conversa- 
 tion (or alleged state of facts) cannot be regarded as proved 
 by a preponderance of evidence. State vs. Gates, 20 Mo., 400. 
 
 If you believe, from the evidence, that the plaintiff has 
 sworn ];ositively that the defendant, etc., — and that the defend- 
 ant has sworn just as positively that he did not, etc., — and if 
 you further find, from the consideration of all the evidence 
 in the c:ise, that the testimony of defendant is entitled to as 
 much credit as that of the plaintiff, and corroborated to the 
 same extent,»tlien, so far as that point is concerned, you should 
 find for the defendant. 
 
 You are instructed that a man's reputation for truth and 
 veracity is made by what his neighbors and persons well 
 acquainted with him generally say of him in that regard; and 
 if they generally say he is untruthful, that makes his reputa- 
 tion for truth and veracity bad. Davis vs. Foster, 68 Ind., 238. 
 
 You are further instructed, that if a man's neighbors and 
 persons who are well acquainted with him, generally say that 
 they have never lieard an3'thing said about him as to his truth- 
 fulness, that is evidence tending to show that his general repu- 
 tation for truth and veracity among liis neighbors and acquaint- 
 ances is good. JJacls vs. Foster^ OS Ind,, 238; 1 Taylor's Law 
 of Evi., § 325.
 
 CKEDIIJILITY OF WITNESSES. 41 
 
 ^ IG. Jiiiy Need not Disrc;>:ar(l Testimony of Impeached AVit- 
 
 ness. — Xotu'itlistanding witnesses may be discredited by im- 
 peaching evidence, their testimony ought not to be wholly 
 disregarded if it is sustained by the corroborating evidence of 
 circumstances, or of other credible witnesses. Smith et al. vs. 
 Orimes et al.^ 43 la., 356. 
 
 The court instructs you, that while the law permits the im. 
 peachment of a witness, by proving his general reputation for 
 truth and veracity, in the neighborhood where he resides, to be 
 bad, still the degree of credence to which such a witness is 
 entitled, and the weight to be attached to his testimony, are 
 matters to be determined by you and by you alone, in view of 
 all the evidence and of all the facts and circumstances proved 
 on the irial. 
 
 And m this case, if you believe from the evidence that the 
 witness A. B., while u]ion the witness-stand, gave a fair, candid 
 and honest statement of the facts and circumstances sur- 
 rounding the transaction in question, then you should not dis- 
 regard his testimony, but you should give it such faith and 
 credit as, in your opinion, it is entitled to. 
 
 The testimony of a witness who has been impeached ought 
 not to be wholly disregarded by you if you feel justified, 
 from his deportment upon the stand, or the probability of his 
 testimony, in believing it, even if it receives no other corrobo- 
 ration. Green vs. Cochran^ 43 la., 544; Addison vs. The State, 
 48 Ala., 478; City Biz. vs. Kent, 57 Ga., 258. 
 
 § 17. Negative Evidence, What is Not. — The court instructs 
 the jury, that when one or more witnesses testify to being 
 present upon any occasion, and that certain facts then took 
 ])lace (or that certain words were then spoken) and other 
 witnesses of equal credibility, having equal means of knowing 
 what took place (or what was said), testify that they were 
 present on the same occasion, and that sucli fact did not take 
 place (or that the alleged v/ords were not spoken), then the 
 testimony of the latter witnesses is not what is known as 
 negative testimony, but it is entitled to be regarded by the 
 jury as affirmative testimony ; and in such a case it is the duty 
 of the jury to weigh all the testimony and give a verdict as 
 the weight may preponderate to the one side or other.
 
 42 WEIGHT OF TESTIMONY. 
 
 Soh2y vs. Thomas, 39 Wis., 317 ; FHzell vs. Cole, 42 111., 
 362 ; Sutherland vs. N'. T., etc., Rd. Co., 41 N. Y., 17. 
 
 You are instructed, as a matter of law, that if other tilings 
 are equal, affirmative testimony is in general entitled to more 
 weight than negative testimony. If you helieve from the 
 evidence that witness A. B. is a credible witness and you find 
 that he has sworn that he was present upon the occasion in 
 question and saw the defendant (pick up a ten-dollar bill and 
 hand it to P.) then this is what is known as affirmative testi- 
 mony, and is for that reason entitled to more weight than 
 negative testimony, and if you further believe from the 
 evidence that the witness C. D. is a credible witness and you 
 find that he has sworn that he also was present at the time in 
 question, and did not see the defendant (pick up any bill, etc.), 
 then his evidence upon this point is what is known as negative 
 evidence, and for that reason is entitled to less weight than 
 the testimony of the witness A. B. upon the same point, 
 provided you further believe from the evidence that the two 
 witnesses are otherwise entitled to equal credit and that both 
 have been corroborated to the same extent. Pool vs. Devers, 
 30 Ala., 672 ; Johnson vs. State, 14 Ga., 55. 
 
 § 18. Proof as to Dates, Testimony as to, Corroborated. — The 
 jury are instructed, that whether little or much reliance should 
 be placed upon the unaided memory of witnesses as to dates, 
 and whether greater weight should be attached to testimony 
 in regard to dates accompanied by written memorandum of 
 facts, containing the date in question, are questions exclusively 
 for the jury, and if the jury believe from the evidence that 
 greater weight should be attached to the latter class of testi- 
 mony, then the jury should give credit accordingly. 
 
 § 19. Burden of Proof. — The jury are further instructed, 
 tliat the burden of proof in this class of cases is always upon 
 the party holding the affirmative; and any matter asserted by 
 one party and denied by the other, can only be proved in law 
 by a ])re])onderance of the evidence; and in this case, if the 
 jury lind from the evidence that the plaintiff has proved the 
 alleged contracts by only one witness, and that the contract 
 has been denied by one witness of equal credibility and means
 
 CrwEDICILITY OF WITNESSES. 43 
 
 of knowledge, then as a matter of law such contract Las not 
 been proved, unless in the minds of the jury there have been 
 facts or circumstances proved corroborating the plaintiff's wit- 
 ness sufficient to outweigh the testimony on the part of the 
 defendant. 
 
 The court instructs you, as a matter of law, that the burden 
 of ]iroof is ujjon the ])laintiif, and it is for him to prove his 
 case by a preponderance of the evidence. If you iind that 
 the evidence bearing ui)on the plaintiff's case is evenly bal- 
 anced, or that it preponderates in favor of the defendant, then 
 the plaintiff cannot recover, and you should find for the de- 
 fendant. 
 
 § 20. Parties. — The jury are instructed, that while our 
 statute renders parties to a suit competent witnesses, and 
 allows them to testify, stiil the jury ai^e the judges of the 
 credibility and weight of such testimony; and in determining 
 such weight and credibility, the fact that such witnesses are 
 interested in the result of the suit, if it so appears from the 
 evidence, may be taken into account by the jury, and they 
 may give such testimony only such weight as they think it 
 fairly entitled to under all the circumstances of the case, and 
 in view of the interest of such witnesses. Hill vs. ISprviikle^ 
 76 K C, 355. 
 
 § 21. Testimony of the Parties to be Weighed by Jury. — The 
 
 com-t instructs the jury, that while the law makes the defend- 
 ant (or plaintiff) a competent witness in this case, yet the jury 
 have a right to take into consideration his situation and inter- 
 est in the result of your verdict, and all the circumstances 
 which surround him, and give to his testimony only such 
 weight as in your judgment it is fairly entitled to. NeUon 
 vs. Yorce^ 58 Ind., 455. 
 
 § 22. Party Failing to Testify. — The court instructs the jury, 
 as a matter of law, that while the statute of this State author- 
 izes a party to a suit to go upon the stand and testify in his 
 own favor, he is under no obligation to do so; and if he fails 
 to do so, the jury have no right to infer from this fact alone 
 anything prejudicial to such party, and no intendment should
 
 ii -WEIGHT OF TESTI:«0^■T. 
 
 1)3 made aojainst him because he does not testify' in his own 
 favor. Lowe vs. Massey, 62 111., 47. 
 
 The defendant had a right to offer himself as a witness in 
 his own behalf on this trial; that he has not done so was at 
 his own option ; and this omission on his part to testify in his 
 own favor is a proper subject for your consideration, and you 
 have a riglit to determine in view of all the facts and circum- 
 stances proved on the trial what inference you will draw fi'om 
 such omission to testify. Whitney vs. Bayley, 4 Allen, 73. 
 
 The law is that when a witness testifies to certain alleged 
 facts within the knowledge of a party to the suit, and which 
 tend to his prejudice, and he does not offer himself for a wit- 
 ness, and no reason is given why he is not called, then the 
 jury may take his failure to testify into consideration in deter- 
 mining what credit ought to be given to the witness who has 
 testitied to such alleged facts. Perkins vs. Hitchcock^ 49 Me., 
 468; Fidleru vs. Glidden^ 68 Me., 559. 
 
 § 23. Corporations — AVitnesses for, How Regarded. — The jury 
 are instructed that they liave no right to disregard the testi- 
 mony of defendant's witnesses through caprice, or without 
 cause, merely for the reason that they are in the employ of a 
 corporation (or a railroad company). The credibility of the 
 defendant's watnesses should be judged of, by the jury, pre- 
 cisely the same as they judge of the credibility of other wit- 
 nesses. 
 
 § 24. Suits against, to be Tried the Same as Others. — It is the 
 
 imperative duty of the jury to try this cause and to decide it 
 pj-ecisel}^ the same as they would if it was a suit between two 
 individuals; and the fact that the plaintiff is an individual and 
 the defendant a corporation, should make no difference with 
 the jury. In considering and deciding the case, the jury 
 should look solely to the evidence for the facts, and to the 
 instructions of the court for the law of the case, and lind their 
 verdict accordingly without any reference to who is plaintiff 
 or who is defendant. 
 
 § 25. Verbal Admissions, How Weighed. — The court instructs 
 the jury, that although parol proof of the verbal admissions of a
 
 CEEDIBILITY OF WITNESSES. 45 
 
 pajty to a suit, when it ap]:)cars tliat the admissions were nnder- 
 standingly and deliberately made, often afford satisfactory 
 evidence. Yet, as a general rule, the statements of a witness 
 as to the verbal admissions of a party should be receivod by the 
 jury with great caution, as that kind of evidence is subject to 
 nmch imperfection and mistake. The party himself may have 
 been misinformed, or may not have clearly expressed his 
 meaning, or the witness may have misunderstood him; and it 
 frequently hapjoens that the witness, by unintentionally alter- 
 ing a few of the expressions really used, gives an eifcct to the 
 statement completely at variance with what the party did act- 
 na]\y say. But it is the province of the jury to weigh such 
 evidence and give it the consideration to whicli it is entitled, 
 in view of all the other evidence in the case. Martin vs. Tlie 
 Toion, etc., 40 la., 390; Saveland vs. Green, 40 "Wis., 431; 
 Mauro v. Piatt, G2 111., 450. 
 
 You are further instructed, as a matter of law, that parol 
 evidence of the verbal admissions of a party to a suit, may be 
 evidence of the most satisfactory character, or it may be 
 regarded as belonging to the very M'cakest class of testimony, 
 depending npon the surrounding circumstances. 
 
 If you can see, from the evidence, that the alleged admis- 
 sions were clearly and understandingly made by the party, and 
 that they are precisely identified, and the language correctly 
 remembered and accurately repeated by the witness, then such 
 testimony is entitled to great weight. 
 
 But if it appears to the jury, from the circumstances proved, 
 that the party himself may have been nn'sinformed, or may 
 not have expressed his own meaning clearly and understand- 
 ingly, or that the witness may have misunderstood him, or 
 that the witness had no reason or motive for remembering the 
 exact language used, or wdiere, from lapse of time or for any 
 other reason, the jury can see that the witness is liable to be 
 mistaken, or unable to give the exact words really used by the 
 party, or their exact equivalents, then but little reliance should 
 be placed upon this class of testimony. Ilall vs. Lcyton, IG 
 Tex., 262. 
 
 § 2G. Admissions, All to be Considered Together — The Jury 
 may Believe Part and Reject Part. — The jury are instructed, that
 
 iG WEIGHT OF TESTIMONY. 
 
 the rule of lau', that the wliole of a declaration or an alleged 
 confession must all be taken together by the jury and con- 
 sidered by them, does not mean that the jury must believe it 
 all, if they accept any part of it as true. The jury may believe 
 such parts of the alleged declaration or statement, as in view 
 of all the facts and circumstances proved, they believe are true 
 or credible, and reject such portions, if any, as they believe to 
 be untrue or unreliable. 
 
 That while the jury are not required to give equal credence 
 to every part of the statements or admissions of the defendant, 
 if they believe, from the evidence, that any such statements 
 or admissions have been proved, yet the whole of such state- 
 ments sliould be carefully weighed and considered by the 
 jury in the light of all the surrounding circumstances appear- 
 ing in evidence — the motives which may have induced it — its 
 consistency with tlie other evidence ; and the jury, without 
 capriciously or causelessly accepting or rejecting any portion^ 
 should credit such parts as they find reason for believing, and 
 reject that part which they find reason for disbelieving, in view 
 of all the facts and circumstances proved on the trial. Ellaiid 
 vs. The State^ 52 Ala., 322 ; State vs. Ilollenscheit^ 61 Mo., 
 302 ; Eiley vs. State, 4 Tex. App., 53S; 1 Grecnlf. Ev., § 201, 
 202; Best on Ev., § 520. 
 
 § 27. Admissions to be Taken All Together — How to be Weighed. 
 
 — The admissions of a party, when ])roved, are evidence 
 against him, and, altliough such admissions are to be taken 
 together as a whole, the jui'y arenot bound to regard all parts 
 of them with equal confidence. The fact that they are against 
 his interest, or in favor of it, their improbability, inconsist- 
 ency, contradiction or corroboration, by other facts in proof, 
 are circumstances proper to be considered by the jury in 
 determining the weight to be given to such admissions or to 
 the several parts thereof. Riley vs. State^ 4 Tex. App., 538. 
 
 § 28. WHien Pai-ty not Estopped by. — The jury are instructed 
 that the admissions of a party to a civil suit, knowing his 
 rights, if clearly proved, are strong evidence against him; but 
 he is at liberty to prove that such admissions were mistakenly 
 made, or were untrue; unless some other person has been
 
 CKEDIBILITT OF WITNESSES. 47 
 
 induced by tlicm to alter his condition; in wliicli ease, as to 
 such persons, or those claiming under them, he is estopped 
 from disputing tlie truth of his admissions; but he is not 
 estopped as to other persons who have not acted upon the 
 faith of such admissions. Hay vs. Bell^ 24 111.. 444. 
 
 The court furtlier instructs you, that while the admissions 
 of a party are competent evidence to go to the jury, the party 
 against whom they are shown is always allowed to disprove 
 them, if they are not true. He may show that they are not 
 true, but were made for a purpose or in ignorance of the facts, 
 and if he shows that they were not true, iie will not be bound 
 by them — unless it appears from the evidence that the oppo- 
 site party, or those under whom he claims, have acted upon 
 such admissions and altered his or their condition on the faith 
 of such admissions. 1 Greenlf. Ev,, § 204. 
 
 § 29. Offer to Compromise, Party not Bound by. — The jury are 
 mstructed, that parties have a right to get together and buy 
 their ]3eace, by making concessions to each other; and any 
 offer or proposition of settlement, if made for that purpose 
 merely, will not be binding upon the party as an admission of 
 the amount due or claimed at the time. Barker vs. Bushnell, 
 75 111., 220; Paijne vs. Ed. (7o., 40 K Y. S. Ct., 8 Plummer 
 vs. Carrier, 52 N. H., 2S7 ; Ga>j vs. Bates, 99 Mass., 263. 
 
 § 30. Admissions in Affidavit for Continuance. — The court in- 
 structs the jury, that the plaintiff, by admitting the statements 
 contained in the affidavit for a continuance, which were read 
 in evidence before you, simply admits that if the said witness 
 A. B. were present here as a witness testifying in this case, 
 he would testify as stated in the affidavit; but the plaintiff' 
 does not admit that such testimony would be the truth ; he has 
 the same right to contradict such admitted testimony as though 
 the witness were present and had testified to the same matter 
 on the witness-stand. And if the jury believe, from all the 
 evidence in the case, tliat the said witness was not present on 
 the occasion testified to by the other witnesses, or did not hear 
 what was said, or did not know what took place, at the time 
 referred to, or is mistaken in his statement of the facts, or that, 
 for any other reason appearing in evidence, such admitted
 
 4S WEIGHT OF TESTIMONY. 
 
 testimony is not reliable, then the jury have a ri^lit to so re- 
 gard it, and give their verdict as seems to he warranted from 
 all the evidence in the case. U. S. L. Ins, Co. vs. Wrhjkt, 
 33 Ohio St., 533. 
 
 The court further instructs you that you are to give full 
 faith and credit to the matters of fact stated in the affidavit 
 for a continuance, and read to the jury as matters M'hich the 
 defendant expected to prove by the absent witness A. B., pre- 
 cisely to the same extent as if the said A. B. had been hero 
 personally present and examined as a witness, and had sworn 
 to the truth of those matters on the witness-stand. 
 
 You are further instructed that you are to give full credit 
 to the matters of fact stated in defendant's affidavit for a con- 
 tinuance, as to what he expects to prove by ilie said absent 
 witness A. B., precisely to the same extent as if the witness 
 had been present and examined in this case, and had sworn 
 precisely as set forth in the affidavit, as read to the jury. 
 
 And you should give such statements in the affidavit, as to 
 what defendant expects to prove by said witness, all the 
 weight to which they would be entitled if such statements had 
 been sworn to by the witness, on the witness-stand, in the pres- 
 ence of the jury. 
 
 That the admissions made in this case, relating to what de- 
 fendant expects to prove by the absent witness A. B., are to 
 be considered by yon the same as if the same witness had been 
 examined as a witness in the case, and had testified on oath, 
 before you, that he was present upon the occasion referred to 
 by the other witnesses, during the whole of the interview, etc., 
 etc.: and if such testimony has not been contradicted, or dis- 
 proved by other evidence in the case, or by circumstances 
 proved on the trial, then you must take such statement of fact 
 as true. 
 
 § 31. Party not Bound by Statfrnr^nt^ of His Own Witnesses. — 
 The court instructs the jury, that wIilju a ]>arty otfers a wit- 
 ness and places him on the witness-stand he thereby represents 
 him in general to be worthy of belief; but such party is not 
 thereby precluded from proving the truth of any particular 
 fact by any other competent testimony, in direct contradic- 
 tion to what such witness may have testified to; and tJiis is
 
 CREDIBILITY OF WITNESSES. 49 
 
 true not only when it appears tliat the witness was mistaken, 
 but also when tlie evidence may collaterally have the eli'ect of 
 showing that he was generally unworthy of belief. Skipper 
 vs. Georgia, 59 Ga., 63; Warren vs. Gabriel, 5i Ala., 235; 
 Gibhs vs. Ilayler, 41 N. T., 191; Blaclcbum vs. Com..^ 12 Bush 
 Ky., ISl; Becker vs. Koch, ION. E. Eep., 701. 
 
 § 32. Verdict to be Detenninccl by the Evidence Alone. — In 
 
 determining any of the questions of fact presented in this case 
 the jury should be governed solely by the evidence introduced 
 before them. The jury have no right to indulge in specula- 
 tions or conjectures not supported by the evidence. 
 
 § 33. Statements of Counsel. — The jury are instructed that 
 it is not proper for counsel, in the argument of a ease, to state 
 any matter or things bearing upon the questions of fact, and 
 claimed to be within his own personal knowledge, or which 
 may have been stated to him by others, not witnesses in the 
 case. 
 
 And you are further instructed to disregard all such state- 
 ments, if any have been made, and to make up your verdict 
 upon the evidence actually given in this case, without placing 
 any reliance upon, or giving any credit to, any statements of 
 counsel not supported by the evidence. 
 
 In determining any of the questions of fact presented in 
 this case you should be governed solely by the evidence intro- 
 duced before you. 
 
 The court instructs you, that an attorney is a competent 
 witness for his client on the trial of a cause; and the testimony 
 of such a witness should not be disregarded by you^ simply 
 because he is an attorney testifying in favor of his own client. 
 In such a case, you are the judges of the weight and credit 
 to which such testimony is entitled. You may consider 
 whether the statements of the witness are apparently fair and 
 candid, or otherwise; whether they are consistent with them- 
 selves, and to what extent, if any, they are corroborated or 
 contradicted by other evidence in the case, and give to the 
 testimony such faith and credit as you believe it entitled to, 
 in view of all the facts and circumstances appearing on the 
 trial. 
 
 4
 
 50 M'EIGHT OF TESTIMONY. 
 
 You arc instriscted, that while the law allows an attorney 
 on the trial of a cause to testify as a witness in favor of his 
 own client, still, the weight and credit which should be given 
 to such testimony are questions exclusively for you; and if, 
 from all the facts and circumstances appearing on the trial, 
 you are satisfied that the attorney, A. B., from feeling or 
 prejudice, or from devotion to the interests of his client, or 
 for any other reason, lias exaggerated or suppressed the truth, 
 or in any manner colored his testimony, as to any material 
 matter, then you have a right to take such fact into considera- 
 tion, together with all the other evidence in the case, in 
 determining what degree of weight or credit ought to be 
 given to his testimony. 
 
 Note. — It is of d .ubtful professional proprietj^ f or an attorney to become 
 a witness for his client on the trial of a cause, without first entirely with- 
 drawing from any further connection with the case as attorney; and an 
 attorney occupying the attitude of both witness and attorney for his client 
 subjects his testimony to criticism, if not suspicion. Ross et al. v. Demos, 
 45 III., 447; Best on Ev., § 184; 1 Greenlf. on Ev., § 36t, 386. 
 
 § 34:. Witness Excused from Answering. — In this case the 
 witness A. B. was asked whether, etc., and declining to answer 
 the question on the ground that the answer might criminate 
 himself, he was excused from answering. From this failure 
 to answer, the jury must not infer that, etc., — the jury are not 
 at liberty to suppose, infer or imagine what would have been 
 his answer, if one had been given. The case, so far as that 
 question to that witness is concerned, stands as if the question 
 had not been put. The jury must act upon the evidence in 
 the case and not upon what they may imagine the evidence 
 might have be^n. People vb. Brewer^ 27 Mich., 134.
 
 CHAPTER III. 
 ACCOUNT STATED. 
 
 Sec. 1 . Need not be stated in express terms. 
 
 2. Must be agreed to. 
 
 3. Settlement presumed to include all items. 
 
 4. Can only be opened for fraud or mistake. 
 
 5. Account rendered not objected to, admitted. 
 
 6. May be opened for fraud or mistake. 
 
 7. Contradicting' receipt. 
 
 8. Receipt, 2J>'i»in facie correct. 
 
 9. Settlement and receipt obtained by duress. 
 
 § 1. Need not be Stated in Express Terms. — The jury are 
 instructed, that in order to constitute an account stated, it is 
 not necessary that the admission of the parties, that tlie bal- 
 ance struck is correct, should be made in express terms. If a 
 creditor his rendered his account to the debtor, exhibiting tlie 
 items thereof, and the amount due thereby, and the account 
 is not objected to by the debtor within a reasonable time, the 
 acquiescence of the debtor therein is to be taken as an admis- 
 sion that the account was truly stated. Poioell vs. P. R. R.^ 
 65 Mo., 658; 1 Greenleaf Ev., Sec. 197; Freeland vs. Heron^ 
 7 Cranch, 147; ITat/es vs. Kelley, 116 Mass., 300. 
 
 § 2. Must be Agreed to. — In order to constitute an account 
 stated it must appear from the evidence that the parties either 
 expressly or impliedly agreed upon a balance due. And 
 although you may believe from the evidence that at the time 
 in question the parties got together and looked over their 
 accounts and struck a balance this would not be binding U[)on 
 the parties as an account stated unless you further believe from 
 the evidence that both the parties then agreed or understood, 
 that such balance should be regarded as the amount due from 
 the defendant to the ])laintilf. Reinhardt vs. Rines^ 51 Miss. 
 344; Cajpe G. Rd. Co. vs. Kimmel, 68 Mo., 83; • Stenton vs. 
 Jerome, 54 N. Y., 408. 
 
 (51)
 
 52 ACCOUNT STATED. 
 
 Altliongli yoiT may bolicve from the evidence tliat some 
 time about, etc., tliL' ])laintiff made out a statement of account 
 including items on botli sides of the account, and struck 
 what he called a balance and showed the same to the defend- 
 ant and I'cquested liim to make payment thereon — and further, 
 that the defendant made no objection to the statement of 
 account at that time, this alone would not be sufficient to 
 constitute an account stated, jjrovided that you further 
 believe from the evidence that the plaintiff did not leave the 
 statement with the defendant and that no balance was in fact 
 agreed upon by the parties or assented to by the defendant 
 as the amount due from one party to the other. Payne 
 vs. ^Yal'ker, 26 Mich. 60. 
 
 § 3. Settlement Presumed to Include all Items. — If you be- 
 lieve, from the evidence, that some time about, etc., the 
 plaintiff and defendant met together, and looked over their 
 accounts for the purpose of settling tlie same, and that they 
 then settled and agreed upon a balance due, then the law will 
 presume that such settlement embraced all the items that each 
 Jiad against the other that were then due; and in such case it 
 devolves upon tiie party asserting the contrary to prove, by a 
 preponderance of evidence, that the item, etc., was omitted by 
 consent of the parties, or by accident and unintentionally, or 
 by the fraud of the other party. Strauhher y&. Mohlei\ SO 
 III, 21; Allrecht vs. Gies, 33 Mich., 289. 
 
 § 4. Can Only be Opened for Fraud or Mistake. — If you be- 
 lieve, from the evidence, that some time on or about, etc., the 
 parties to this suit met and looked over their accounts to- 
 gether, and settled all matters between them, and struck a 
 balance and agreed upon that as the amount due from one to 
 the other, then, in the absence of mistake or fraud, neither 
 party will be allowed to go behind that settlement for the pur- 
 ])Ose of increasing or diminishing the amount so agreed upon. 
 1 Am. & Eng. Ency., 125. 
 
 You are instructed, that when two parties have a settlement 
 and adjust all their accounts, and agree upon the balance due, 
 neither party can afterwards open the settlement without first 
 showing that there was some fraud practiced on him, or amis-
 
 ACCOUNT STATED. 53 
 
 take made by both parties; and the burden of proof is upon 
 the party wishing to open the settlement, to show, by a pre- 
 ponderance of evidence, that there was a fraud practiced 
 upon him, or that the parties were laboring under a mistake 
 in relation to some matter of fact which entered into, or 
 affected the settlement. Qiihilan vs. Keiser, Q'o Mo., 603; 
 Wilson vs. F/'lshi/, 57 Ga., 239; Haws/cms vs. Lofig, 74 K. C, 
 781; Ki'onenherger vs. Bing^ 55 Mo., 121; White vs. Canip- 
 Ml, 25 Mich., 403. 
 
 § 5. Account Renilered not Objected to, is Ailmittcil. — Where a 
 party send-, by mail, a statement of account to another with 
 whom he has dealings, which is received, but not replied to 
 within a reasonable time, the acquiescence of the party is taken 
 as an admission that the acconnt is correctly stated; and what 
 is a reasonable time in this connection, is a question for the 
 jury to determine, under all the circumstances of the case, 
 considering the nature of the business, the distance of the 
 parties from each other, and the means of communication 
 between them. Bailey vs. Bensley, 87 111., 556 ; Darhy vs. 
 Lasirapes, 28 L. Ann., 605 ; Powers vs. P. lid. Co., 65 Mo. 
 658. 
 
 When two parties have running accounts with each other, 
 and a statement of the account is made by one party and sub- 
 mitted to the other, and the latter acquiesces in its correct- 
 ness, the law will regard it as a stated account, by which both 
 parties will be bound, unless it can be shown that some error 
 or mistake has been made, or fraud practiced; and the burden 
 of proving the error, mistake or fraud, is on the party alleg- 
 ing it. Bradley vs. Richardson, 2 Blackf . (U. S.), 354. 
 
 When two parties have a running account, and one makes a 
 statement of the account and sends it to the other, by mail, 
 and the latter keeps it an unreasonable time, without making 
 any objection to it, he must be held to have consented to its 
 being correct, and he will not afterwards be permitted to 
 question its correctness, unless he can show that there is some 
 error, mistake or fraud in the account, of which he was 
 ignorant when he so consented to it. Freas vs. Fruitt, 2 
 Col. T., 489.
 
 bi ACCOUNT STATED. 
 
 § 6. May be Opened for Fraud or 3Iistake. — Althongli yon 
 may believe, from the evidence, tliattlie plaintiff sent, and the 
 defendant received, the accounts of sales read in evidence on 
 this trial, and that the defendant made no objection to them at 
 the time they were received, still, if yon further believe, from 
 the evidence, that said accounts of sales contained erroneous 
 charges or false accounts, and that the plaintiff knowingly 
 concealed from the defendant the fact of their being erroneous 
 or false, and that the defendant did not, and could not, by the 
 exercise of reasonable care, have ascertained or discovered 
 such errors or false statements, then a failure on his part to 
 object to said accounts, at the time of receiving them, does not 
 in law estop him from afterwards showing the truth in refer- 
 ence to the matters contained in such statements. Ya)idever 
 vs. Stalesir, 39 j^. J. Law, 593; Petut vs. Crawford^ hi 
 Miss., 43; Anthony vs. Bay, 52 Howard, X. Y. Pr., 35; 1 
 Am. and Eng. Ency., 125; Dufy vs. Eicl^ey, 63 Wis., 312. 
 
 § 7. Contradicting Receipt. — The court instructs the jury that 
 a receipt is hui prima facie evidence of payment, and may be 
 contradicted by parol testimony; and if the jury believe, from 
 the evidence, that the plaintiff did the extra work for which 
 this suit is brought, at the request of the defendant, expressed 
 or implied, and that defendant has not been paid for the same, 
 and further, that the receipt introduced in evidence was not 
 intended to cover that item, or that the item was overlooked, 
 and by the mistake of the parties not included in the settlement 
 when the recei])t was given, then the jury should find for the 
 plaintiff as to that item. 2 Pars, on Cont., 555; 1 Greenl. Ev., 
 § 305; Branch vs. Bawson^ 36 Minn., 193. 
 
 § 8. Receipt Prima Facie Correct. — The jury are instructed, 
 that a re.ceipt which says on its face that it is a receipt in full, 
 must be taken to be in full of all matters which were claimed, 
 or could have been brought forward at the time it was given, 
 unless it appears, by a preponderance of the evidence, that 
 some item or matter of claim was omitted by mistake of the 
 parties, or by the fraud of the person taking the receipt. 1 
 Gieenl, Ev., § 212 ; ISlierman vs. Crosby, 11 Johns. 70.
 
 ACCOUNT STATED. 55 
 
 § 9. Settlement and Receipt Obtained by Duress. — If you 
 
 believe, from the evidence, that at the time of the alleged 
 settlement between the parties, and when the receipt in ques- 
 tion was given, the plaintiff was in embarrassed circumstances 
 financially, and that he had money due to him from the 
 defendant and from other persons, and that he was dependent 
 upon receiving prompt pay from the defendant and from such 
 other persons, to save himself from serious loss or financial 
 ruin, that defendant knew all this, and if the jury further 
 believe, from the evidence, that the plaintiff then claimed that 
 there was due to him from the defendant a much larger sum 
 than ($1,000), and that the defendant for the purpose of com- 
 pelling plaintiff to accept ($1,000) in full, of the amount so 
 claimed by him, refused to pay the plaintiff any portion of 
 what was due, except upon condition that the plaintiff should 
 accept the ($1,000) in full payment, and give a receipt in full 
 of all demands, and also threatened to take steps to stop pay- 
 ment to plaintiff by the other persons so indebted to him, and 
 that by these means the plaintiff was induced against his free 
 will and consent to accept the ($1,000) and to give the receipt 
 in full, then the plaintiff is not bound by such alleged settle- 
 ment nor by the receipt as a receipt in full. Vyne vs. Glenn, 
 41 Mich., 112; Sholeij vs. Mumford, 60 K Y., 49S; Stenton 
 vs. Jerome, 54 K. Y., 480. 
 
 If you believe, from the evidence, that at the time of the 
 alleged settlement and the giving of the receipt in question, 
 the defendant was indebted to the plaintiff for work and ma- 
 terial furnished under the building contract put in evidence, 
 and that he then claimed that there was then due to him from 
 the defendant more than ($1,000), and also that plaintiff was 
 indebted in a considerable amount for material used, and to 
 the men employed by him in doing said work, and that he 
 was dependent upon the money due to him from defendant to 
 pay what he owed for such labor and material, and that a fail- 
 ure to promptly pay these debts of his would result in serious 
 loss to him, and that defendant knew all this and refused to 
 pay the plaintiff any portion of what he owed him, except 
 upon condition that he accept ($1,000) in full payment and
 
 50 ACCOUJSfT STATED. 
 
 give a receipt to that effect, and that tlie plaintiff was induced 
 bj these means, against his free will and consent, to agree to 
 accept ($1,000) in full and to give the receipt in question, then 
 such settlement is not binding upon the plaintiff, nor is he 
 bound by the receipt as a receipt in full.
 
 CHAPTEK IV. 
 
 AGENCY. 
 
 Sec. 1. General instructions of principal. 
 
 2. Departure of business of principal. 
 
 3. Agency must be shown, when. 
 
 4. Agency presumed to continue, when. 
 
 6. Warranty within the apparent scope of, etc. 
 
 6. Public officer, principal not bound by acts of. 
 
 7. In case of torts. 
 
 8. Goods furnished minor child. 
 
 9. Goods furnished the wife. 
 
 10. Wife living separate from the husband without her fault. 
 
 11. In case of desertion by wife. 
 
 12. Ratification of agent's acts. 
 
 13. Ratification must be with full knowledge. 
 
 14. Ratification without full knowledge. 
 
 15. Ratification cannot be as to part only. 
 
 16. Permitting one to hold himself out as agent. 
 
 17. Agent personally liable. 
 
 18. Notice to an agent binding, when. 
 
 19. Good faith required of the agent. 
 
 20. Corporations only act by agents. 
 
 21. Corporations may ratify unauthorized acts. 
 
 22. Individual members, etc., cannot act. 
 
 § 1. General Instructions of Principal. — The jniy are in- 
 structed, that where the directions of the principal to his 
 agent are general as to the business which he is intended to 
 perform, then the principal is held to have confided in the dis- 
 cretion of his agent, and he will be answerable for all the acts 
 of the agent in the performance of the duty required. 
 
 § 2. Departure from Business of Principal. — The jury are 
 instrncted, that if the directions of the principal to his agent 
 are specific to do some specific thing, and the servant disre- 
 gards his specific instructions, and goes about doing something 
 else, not reasonably within the scope of the authority given, 
 
 (57)
 
 5 8 AGENCY. 
 
 the master will not be liable for sucli acts of tbe servant, 
 unless they are afterwards ratified by him. 
 
 § 3. Agency Miist be Shown, When. — The jury are instructed, 
 that the plaintiff cannot recover in this action against the 
 defendant C. D. for the acts or alleged trespasses of the said 
 A. B. without establishing the relation of principal and agent 
 between the said A. B. and the said C. D., and the mere fact 
 that the former was in the employ of the latter is not alone 
 sufficient to establish snch agency and the jury will not be 
 justified in finding a verdict against the defendant C. D., nnless 
 they believe from the evidence that the defendant C. D. 
 directed or authorized the seizure of the goods as charged in 
 the declaration, or that he ratified or approved the act after 
 it was done, or else that the said A. B. in seizing the goods was 
 acting as the agent of the said C. D. and within the scope of 
 his general authority as such agent. And tlie jury are further 
 instructed that if they believe from the evidence that the said 
 A. B. was in the employ of the said defendant at the time in 
 question in the capacity of, etc., and thai his duties were con- 
 fined to, etc., then it would not be within the scope of his 
 general authority as agent of the said C. D. to seize the goods 
 of the plaintiff as charged in the declaration. 
 
 You are instructed, that a principal is bound by the acts of 
 his agent only so far as those acts are specially authorized bj' 
 the principal, or are within the scope of the agent's apparent 
 authority; unless such acts are afterwards ratified by the prin- 
 cipal. 
 
 § 4, Agency Presumed to Continue, When. — The jury are 
 instructed, that it is a rule of law, that when a person is sliown 
 to have been an agent of another in a jmrticular business, and 
 continues to act as such agent, within the scojie of his former 
 authority, it will be presumed that his authority continues, 
 and his acts will bind his princi])al, unless the person with 
 whom he deals has notice that his agency has ceased, or until 
 after the lapse of such a length of time as ought to put a rea- 
 sonably prudent man on inquiry as to the continuance of such 
 agency. BarHey \&. lienssaJaer, etc., Co., 71 ]^. Y., 205; 
 Packer vs. Ilhikley, etc., 122 Mass., 484; Mur_phy vs. Otten-
 
 AGENCY. 59 
 
 heimer, 84 111., 39; Dowe^ etc.^ vs. Linder, 59 Ind., 007; Sum- 
 mermlle vs. Han. & St. Joe Rd. Co.^ 62 Mo., 391. 
 
 You are instructed, that no statement made by the witness, 
 T. B., either before or after the delivery of the note offered in 
 evidence, or in relation to the transaction out of which it 
 grew, is binding uj^on the defendants, unless it was made in 
 their presence and hearing without objection from tliem, or 
 unless the jury believe from the evidence that the said T. B. 
 was acting as the agent of the said defendants in regard to the 
 subject-matter of such statements at the time the statements 
 are alleged to have been made; and unless the jury believe 
 from the evidence that the said A. B. was at the time the 
 agent of the defendants and authorized 1o represent them 
 in regard to the said note, etc., etc., the jury should disregard 
 all evidence of any statements made by him to the plaintiffs 
 in the absence of the defendants, purporting to come from 
 them or to give expression to their wishes, intentions or pur- 
 poses in regard to, etc. 
 
 § 5. Warranty within the Apparent Scope of, etc. — The court 
 further instructs the jury, that while it is true that the ])rin- 
 cipal is not bound by the unauthorized acts of his agent, when 
 such acts are beyond the scope of the agent's apparent author- 
 ity, yet the principal is bound by a warranty, made by an agent, 
 of the quality of an article sold by the agent, when the buyer 
 is justified, from the nature of the business and the manner of 
 doing it, in believing that the authority to make the warranty 
 had been given, and the buyer had no means of knowing the 
 limitation of the agent's authority. 1 Parsons on Cont., 52; 
 Murray v. Brool's, 41 la., 45. 
 
 You are instructed, that it is a rule of law that a person 
 dealing with one known to be an agent, or claiming to be such, 
 is bound, at his peril, to see that the agent has authority to 
 bind his principal in such transaction, or that the agent is act- 
 ing within the scope of his apparent authority. Peahodij v. 
 Eord, 46 111., 242. 
 
 § 6. Public Officer. — The jury are instructed, that it is a . 
 general rule that if a special agent, whose authority is con- y 
 ferred by statute or by orders of court, or one acting in the /
 
 60 AGENCY. 
 
 capacity of a public officer, acts outside of tlie authority con- 
 ferred, the principal will not be bound by his acts. Dmrt v. 
 Hercules, 57 111., 446. 
 
 § 7. Ill Case of Torts. — The jury are instructed, that if a tort 
 or wrong is committed by an agent, in the course of his em- 
 ployment while pursuing the business of his principal, and it 
 is not a willful departure from such employment and business, 
 the principal will be liable for the act, although it is done 
 without his knowledge. N'ohle v. Caymitigham, 74 111., 51; 
 Coolcy on Torts, 533; Hamilton v. Third Ave. lid. Co.. 53 
 K T., 25. 
 
 You are instructed as a matter of law, that the principal is 
 held liable for the wrongful acts of his agents if done in the 
 course of his employment as such agent although the princi- 
 pal did not authorize, justify, or participate in such acts, or 
 even if the principal forbade the acts or disproved of them. 
 And, in this case, if you believe from the evidence that the 
 said A. B. did seize and take the property of the plaintiff men- 
 tioned in the declaration without legal or justifiable excuse for 
 so doing as explained in these instructions, and that in so doing 
 the said A. B. was acting as the agent of the defendant and 
 within the scope of his employment as such agent, then you 
 must find the defendant guilty of the trespasses complained of. 
 
 § 8. Goods Furnished Minor Cliild. — The court instructs the 
 jury, as a matter of law, that if a father permits his minor 
 child to purchase goods on his account, and the father pays 
 for them without objection, this will afford a presumption of 
 agency with full power to make like purchases in the future. 
 
 You are instructed that either an express promise, or cir- 
 cumstances from which a promise may be inferred, must be 
 proved, by a preponderance of the evidence, before the father 
 can be made liable for goods sold and delivered to his minor 
 child. Gotts vs. Clat^ 78 111., 229; Fowlhes vs. BaJier, 27 
 Tex., 135; Schouler's Domestic Rola., 329; Stoain vs. Tf/ler, 
 26 Yt, 9; Thayer vs. White, 12 Met., 343. 
 
 You are in-tructed, that either an express promise, or 
 circumstances from which a promise by the father may be 
 inferred, is essential, in all cases, to bind him for necessaries
 
 AGENCY. G 1 
 
 fnrnislierl his infant cliild by a third person. Where the father 
 and mother separate by mutual consent, and tlie father permits 
 the mother to take the children witli her, then the fatlier con- 
 stitutes the mother his agent to provide for his children, and 
 he is bound by her contracts for necessaries furnished for 
 them. McMillan vs. lee, 78 111., 443. 
 
 § 9. Goods Furnished the AVife. — The jury are instructed, 
 that where goods, necessary and suitable to the position in life 
 of a wife living with her husband, are sold to lier on the 
 credit of her husband, and charged to him, a Jury will be jus- 
 tified in finding that the wife was the agent of her husband to 
 make the purchases; and, in this case, if the jury believe from 
 the evidence, that the goods, for the price of which this suit 
 is brought, were fnrnished to the defendant's wife while she 
 was residing with liim, and that they were necessary and suit- 
 able to the position in life of the wife, then the defendant is 
 liable to pay for the same; unless the jury further believe, from 
 the evidence, that the defendant had forbidden the plaintiff 
 selling goods to his wife on credit. 1 Pars, on Cont, 287; 
 Schonler's Dom. Eela., 77. 
 
 You are instructed, as a matter of law, that if a husband 
 neglects to furnish his wife, while living with him, with all 
 articles of necessity suitable to his condition in life, then the 
 wife may procure them of others, and the husband will be 
 liable to pay for the same. 
 
 You are instructed, as a matter of law, that if a husband 
 neglects to provide his wife and family with articles of neces- 
 sity suitable to his condition in life, the wife may procure 
 them of others, and the husband will be liable to pay for 
 them. The term, article of necessity, in this connection, in- 
 cludes whatever things are proper to be nsed in the family, 
 and suitable to the manner of life which the husband author- 
 izes or permits. Clark vs. Cox^ 32 Mich., 204. 
 
 You are further instructed, as a matter of law, that a hus- 
 band will not be liable for necessaries purchased by his wife 
 without his knowledge or consent, if such goods are purchased 
 from one with whom there has been no previous dealings by 
 the wife on the credit of the husband; provided the jury 
 believe, from the evidence, that the husband had suitably
 
 G2 AGENCY. 
 
 supplied liis wife witli such necessaries, or with the money 
 with which to buy thera. A tradesman in such case supplies 
 goods to the wife at his peril, if the husband is guilty of no 
 neglect in the premises. Ihid. 
 
 § 10. AVife Livin;? Separate from the Hnsband without her 
 Fault. — If the jury, believing from the evidence that the plaint- 
 iff sold the goods for which this suit is brought, to the defend- 
 ant's wife while she was living separate and apart from 
 him without his consent, still the defendant will be liable to 
 pay for the same if the jury further believe, from the evidence, 
 that the goods furnished were necessary and suitable and 
 proper for the wife, regard being had to the condition in life 
 of herself and husband, and that the wife had good and suffi- 
 cient cause for living separate and apart from her husband, as 
 explained in these instructions; and also that he had failed and 
 refused to furnish her such necessaries or the money with 
 which to purchase them. Thorpe vs. Shaj)leigh, 67 Me., 235. 
 
 § 11. In Case of Desertion by Wife. — The jury are instructed, 
 as a matter of law, that if a wife deserts her husband without 
 sufficient cause, as explained in these instructions, or remains 
 separate from him without liis consent, and without good and 
 sufficient cause, he will not be liable for necessaries purchased 
 by her. Oinson \b. Heritage, 4:^ Ind., 73; Bevier vs. Gallo 
 way, 71 111., 517. 
 
 You are further instructed, that if you believe, from the 
 evidence, tliat the plaintiff sold the goods sued for, to the 
 defendant's wife, while she was living separate and apart from 
 her husband, without his consent, then to entitle the plaintiff 
 to recover in this suit he must prove, by a preponderance of 
 evidence, that the wife had just and legal reason to live separate 
 from her liusband, as explained in these instructions. Hea vs. 
 Durkec, 25 111., 504; ^Yilson vs. Bishop, 10 111. App., 5S8. 
 
 If you believe, from the evidence, that the merchandise for 
 which this action is brought was sold by plaintiff to defendant's 
 wife, and that at that time she was living apart from her hus- 
 band, and that the plaintiff was knowing to that fact, then to 
 entitle the plaintiff to recover, the burden of proof is on the 
 plaintiff to show, by a preponderance of evidence, that the
 
 AGENCY. 63 
 
 wife was living apart from her husband, with his consent, or 
 that the wife was justified in leaving her husband on account 
 of his cruel treatment, or that his conduct was so violent as to 
 lead her to reasonably fear personal violence, or on account of 
 some other fault of the husband, which rendered it improper 
 for her to live and cohabit with him. Ilea vs. Durkee^ 25 111., 
 503; Bevier vs. Galloivay, 71 111., 517. 
 
 You are instructed, that a husband is not bound by law to 
 support his wife, or even to furnisli her with necessaries, while 
 she is living separate and apart from him, if she so lives, with- 
 out his consent, and without any good or sufHcient reason or 
 cause therefor, as explained in these instructions. 
 
 And in this case, though you may believe, from the evi- 
 dence, that the goods in question were furnished by the plaint- 
 iff to the wife of the defendant, as claimed, and that the goods 
 were necessaries, and suitable and proper to a pej-son in her 
 condition and station in life, still, if you further believe, from 
 the evidence, that when the goods were furnished to Mrs. 
 "A," she was living separate and apart from her husband 
 without his consent, and without any good or sufHcient cause 
 therefor, as explained in these instructions, then the defendant 
 is not liable to pay for the goods so furnished, simply from 
 the relationship of husband and wife between himself and Mrs. 
 "A." Schouler's Dom. Eela., 90; 1 Bishop M. & D., § 573. 
 
 § 12. Ratification of Agent's Acts. — The law is, that where 
 a person's name is signed to a promissory note without his 
 autliority, he may afterwards ratify its execution and acknowl- 
 edge its binding validity upon him, and if lie does this his 
 relation to the note will be precisely the same as if he executed 
 it personally. Paul vs. Berry ^ 78 111., 158; Eadie vs. Ashhaugh, 
 44 la., 519. 
 
 You are instructed, that a principal who, with the full 
 knowledge of all the material facts affecting his rights, receives 
 the benefit of an unauthorized agreement, made for him by one 
 purporting to be his agent, is precluded thereby from question- 
 ing the agent's autliority in the transaction. PlJce vs. Douglass^ 
 28"Ark., 59. 
 
 You are further instructed, that a principal, when fully 
 informed of his agent's acts, must dissent from them in a
 
 64 AGENCY. 
 
 reasonable time, or lie will be beld to liave ratilied tbera. 
 And in tbis case, if you believe, from tlie evidence, tliat de- 
 fendant received full information of tlie acts of tbe said A. B. 
 in tlie premises, on or bcfoj'e, etc., and remained silent and 
 inactive until, etc., tlien tliat was not a reasonable time in 
 wliicli to dissent from tlie acts of tbe said A. B. Meyer vs. 
 Morgan^ 51 Miss., 21; Ilawlins vs. Lange, 22 Minn., 557; 
 Breed vs. Cent City Bh, 4 Col., 481; U. S. B. S. Co. vs. Rd., 
 37 Obio St., 450; Waterson vs. Bogers, 21 Kans., 529; Ileyn 
 vs. O'Bagan, 60 Micb., 150. 
 
 You are instructed, tbat altbougb you may believe, from 
 tbe evidence, tbat tbe said A. B. was not autborized to make 
 a bargain witb tbe plaintiff for tbe defendant, in relation to, 
 etc., yet if you believe, from tbe evidence, tbat tbe said A. B. 
 did make tbe contract for tbe defendant, as alleged and claimed 
 by tbe plaintiff, and tbat tbe defendant, witb full knowledge 
 of wbat bad been done, ratified tbe bargain so made, then tbe 
 contract will be as binding upon tbe defendant as if be bad 
 autborized tbe said A. B. to make tbe biirgain in tbe first 
 instance. City of Detroit vs. Jacl^son, 1 Doug. (Midi.), 106; 
 Hall vs. Chicago, etc., R. Co., 48 Wis., 317; Stewart vs. Maker, 
 32 Wis., 344; Drakely vs. Gregg, 8 Wall. (U. S.), 242. 
 
 § 13. Ratification Must be Avith Full Knowleilge. — Tbe Jury 
 are instructed, tbat before a person can be bound by tbe rati- 
 fication of an act, done on bis bebalf by one professing to act 
 as bis agent, it must appear, by a preponderance of tbe evi- 
 dence, tbat be was fully informed of all tbe material facts 
 affecting bis rigbts in tbe transaction, and unless it does so 
 appear, be will not be bound by an unautborized act, upon tbe 
 ground of ratification alone. Kerr vs. Sharp, 83 111., 199; 
 Bannon vs. Warfield, 42 Md., 22; Boberts vs. Rumley, 58 la., 
 301; ^tna Lis. Co. vs. A". TF. I. Co., 21 Wis., 458; Broctor 
 vs. Tows, 115 111., 138. 
 
 Tbat wben tbe act of ratifying tbe act of tbe agent is 
 claimed to be implied, from a knowledge of tbe facts, by tbe 
 principal, it must appear, by a preponderance of tbe evidence, 
 tbat tbe principal bad full knowledge of all tbe facts affecting 
 his interests in the transaction. Farwell vs. Meyer, 35 111. 
 40 ; Jemison vs. Barker, 7 Mich., 355 ; Corhn^'itt vs. Chicago, 
 114 111., 233.
 
 AGENCY. C5 
 
 § 14. Rjitific.ation without Full Knowledge. — The court in. 
 stnicts tlie jury, that it is a rule of law, that where an allcf^ed 
 principal does anything towards ratifying an act done in his 
 behalf by an unauthorized person, and the acts of ratification 
 are done in ignorance of, or under a mistake of, any of the 
 material facts affecting the interests of the principal, then the 
 act of ratification will not be binding on the principal. Mil- 
 ler vs. Board of^ etc., 44 Cal., 166. 
 
 § 15. Ratification Cannot be as to a Part Only. — The jury are 
 mstructed, as a matter of law, that if a person adopts a con- 
 tract made on his behalf by an agent, who had no authority to 
 make it, he must adopt it in its entirety; he cannot adopt it 
 in part and repudiate it in part. Southern E,cp. Go. vs. Palm- 
 er, 48 Ga., 85; Wldner vs. Lane, 14 Mich., 124; Henderson 
 vs. Cu7nviings, 44 III., 325; Kreder vs. Trustees, etc., 31 la. 
 547; Menkins vs. Watson, 27 Mo., 163; Saveland ys,. Green, 
 40 Wis., 431 ; TasJcer vs. Kenton Ins. Go., 59 N. H., 438 ; 
 Strasser vs. Gonldin, 54 Wis., 102. 
 
 § 16. Permitting One to Hold Himself Out. — If the jury be- 
 lieve, from the evidence, that at the time the contract in ques- 
 tion is alleged to have been made, the defendants knew that 
 the said A. B. was doing business and buying stock in their 
 names, as their agent, and made no objection to his so doing, 
 then the defendants would be bound by any contract within 
 the apparent scope of sucli business, and no secret arrange- 
 ment between the defendants and the said A. B. would be 
 binding on tlie plaintiff, unless he had notice of the same. 
 
 You are instructed, that if a person knowingly and volun- 
 tarily permit another to liold himself out to the world as his 
 agent, he will be held to adopt his acts, and be bound, as 
 principal, to the person who gives credit to the one acting as 
 such agent. Thurler vs. Anderson, 88 111., 167. 
 
 If you believe, from the evidence, that in the summer of, 
 etc., the defendants knew that A. B. was acting as their agent, 
 buying stock in their names, and voluntarily permitted him to 
 do so, and you further believe, from the evidence, that the 
 said A. B., while so acting, made the contract alleged in plaint- 
 ifi's declaration, then the defendants would be bound thereby, 
 6
 
 66 AGENCY. 
 
 whether the said A. B. was, in fact, their agent at that time or 
 not. 
 
 § 17. Agent Personally Liable. — If the jury believe, from the 
 evidence, that the defendant employed the plaintiff to do the 
 work in question, and that the plaintiff did the work under 
 such contract, and also that the defendant was then acting as 
 the agent of another in procuring said work to be done, still, 
 if the jury further believe, from the evidence, that when the 
 plaintiff was so hired to do the work, the defendant did not 
 disclose the fact that he was acting as such agent, and the 
 plaintiff then had no notice or knowledge of such agency, 
 then the defendant will be liable to pay the plaintiff for such 
 labor. 
 
 § 18. Notice to an Agent Binding, Wlien. — The jury are in- 
 structed, that notice to an agent of any fact concerning the 
 matters of his agency, is the same as notice to the principal. 
 The law prenimes that an agent transmits, or in some manner, 
 communicates, to his principal all information received by 
 him relating to the matter of his agency. Saulshuri/ vs. 
 Wimherlij, 60 Ga., 78; Roach vs. Carr, IS Kans., 329; Taggs 
 vs. Tenn. M. BTi., 9 Heisk., 479. 
 
 Notice to A^ent, not Binding, When. — The jury are instructed, 
 that a party is not chargeable with notice of facts within the 
 knowledge of his agent or attorney, where the agent or attor- 
 ney acquires such knowledge while acting as the agent or 
 attorney of another person. Harrington vs. McCollum^ 73 
 111., 476; Aultman & T. Co., vs. Webber, 4 111. App., 427. 
 
 § 19. Good Faith Required of the Agent. — The court instructs 
 the jury, as a matter of law, that if an agent makes any profit, 
 in the course of his agency, by any concealed management, 
 in either buying or selling, or other transaction, on account 
 of the principal, the profits will belong exclusively to the )u-in- 
 cipal. Cottom vs. Ilolliday, 59 III., 176; Love et al. vs. IIoss, 
 62 Ind., 255. 
 
 If you believe, from the evidence, that the defendant, A. 
 B., was the agent of the plaintiff" in making tlie purchase of
 
 AGENCY. 67 
 
 the (land) in question, and that as such agent he purchased the 
 {land) for {twelve) dollars per acre, for plaintiff, and charged 
 the plaintiff {Jifteeii) dollars per acre, representing to the 
 plaintiff that he was compelled to pay that price for the {land)^ 
 and received that amount of money from the plaintiff on that 
 account, and that the plaintiff, when he paid the money, was 
 ignorant of the pi^'ice actually paid by defendant, then the 
 plaintiff is entitled to your verdict for the difference between 
 the price of the {laiid) at {twelve) dollars per acre and its price 
 at {ffteen) dollars per acre, and interest on that sum at {six) 
 per cent. ])er annum, from the time the money was so paid by 
 the plaintiff. 
 
 § 20. Corporations only Act by Agents. — The court instructs 
 the jury, that corporations can only act or contract by their 
 officers or agents, and when a corporation holds certain per- 
 sons out to the public as authorized to act on its behalf, then 
 the corporation, like an individual, will be bound by all the 
 acts and contracts of such persons, which are done or made 
 within the apparent scope of their said agency. 
 
 And if you believe, from the evidence in this case, that the 
 defendant corporation appointed F., B. and H. as a building 
 committee, or voluntarily and knowingly held them, or any of 
 them, out to the public as such building committee, and as 
 authorized to act and make contracts on its behalf, in relation 
 to doing the work in question in this case, and that they did 
 make the contract with the plaintiff for doing the work in 
 question, then the corporation will be bound by the terms of 
 such contract. 
 
 § 21. Corporation May Ratify Unanthorized Acts. — A corpora- 
 tion, like an individual, may be bound by the acts of one as- 
 suming to act as its agents, if it ratify the acts of the person 
 so professing to act as agent. 
 
 Although you may believe, from the evidence, that the 
 plaintiff performed the services in question, for the defendant, 
 at the request of some officer or member of the corporation 
 not x^reviously authorized to contract in reference thGlelo, siilJ, 
 if you further believe, from the evidence, that the work in 
 question was prosecuted with the knowledge aua consent of
 
 68 AGENCY. 
 
 the officers and agents of tlie corporation Laving charge and 
 control of its property and affairs, and that the corporation 
 accepted and held the benefits arising from such labor and 
 services, then, as a matter of law, tlie corporation will be held 
 to have ratified tlic acts of snch unauthorized person, and it 
 will be bound thereby. 
 
 § 22. Individual Membei*s of Board Cannot Act. — The su] er- 
 
 visors have no power to act individually; it is only when con- 
 vened and acting together as a board of supervisors that they 
 represent and bind the county by their acts; and the chairman 
 of the board has no greater authority, in his individual capac- 
 ity, than any other member. 
 
 When the officers or agents of a public corporation have no 
 power with respect to a given matter, neither their acts nor 
 their individual knowledge in respect to the matter can, in 
 any way, bind or affect such corporation. Johnson vs. S. Dist.., 
 67 Mo., 319. 
 
 Individual members of a corporation cannot, unless author- 
 ized, bind the body by express promises; hence it follows that 
 / a corporate engagement cannot be implied from their unsanc- 
 
 / tioned conduct or their declarations. Benton vs. Brd. of 
 
 Sups., 84 111., 384; Harrison vs. Liston Dist., 47 la., 11. 
 
 The members of the county court can only bind their 
 county, in matters of claims, when acting as a court, and their 
 records are the only admissible evidence of their judicial acts. 
 McLaney vs. Co. of Marlon, 77 111., 488. 
 
 \
 
 CHAPTEE V. 
 
 ALTEEATION OF WRITTEN" INSTRUMENTS. 
 
 Sec. 1. Material alteration renders instrument void. 
 
 2. Not affected by iuiniuterial alteration. 
 
 3. Alteration by stranger. 
 
 4. Alteration by party not authorized. 
 
 5. Alteration adopted by maker. 
 
 6. Presumed to be made after execution. 
 
 7. No presumption of law as to when alteration was made. 
 
 § 1. Material Alteration Rentiers Instrument Void. — The court 
 instructs the jury, that any material alteration in the terms of 
 a promissory note, after it has once been made and delivered, 
 will render the note void as against all the parties to the note, 
 who did not know of and consent to the alteration at the time 
 it was made, or unless such persons have in some manner sub- 
 sequently ratified the act. Schnewind vs. HacJcet, 54 Ind., 
 248 ; Dicherman vs. Miner^ 43 la., 508 : Evans vs. Foreman^ 
 60 Mo., 449; Bradley vs. Mann, 37 Mich., 1 ; Greenfeld S. 
 Bk. vs. Stowell, 123 Mass., 196; Eewins vs. Cargill, 67 
 Me., 554 ; Brown vs. Straw, 6 Neb., 536 ; Fuller vs. Green, 
 64 Wis., 159. 
 
 The court instructs the jury that if they believe from the 
 evidence, that the words " after maturity," have been erased 
 in the note since the defendant A. B. signed it, without his 
 knowledge or consent, this would be a material alteration of 
 the note, and if done by any person then holding the note as 
 owner or by any one authorized by the owner to do so, would 
 render the note void as against the defendant A. B., although 
 the jury may believe from the evidence that the owner took 
 the note in the regular course of business before due, for value 
 and without notice of such alteration, unless the jury further 
 believe from the evidence that the said A. B., has in some 
 manner ratified the said act as explained in these instructions 
 upon that point. Holmes vs. Turmjper, 22 Mich., 427; 
 McCoy vs. Lockwood, 71 Ind., 319. 
 
 r69)
 
 70 ALTERATION OF WEITTEN IKSTKUMENTS. 
 
 If the jury believe from the evidence that the defendant 
 H. signed the note in question, as a surety for the other 
 makers of the note, and that, after he had so signed it, by an 
 arrangement between the otlier makers of the note and the 
 holder (the rate of interest was changed from six per cent, to 
 seven) without the knowledge or consent of the said H., such 
 an alteration was a material one, and releases the said H. from 
 all liability on the note, although such alteration was made 
 without any fraudulent intent on the part of those who made it. 
 (If proper, add clause as to ratification.) Harsh et al. vs. 
 Klei^Xyer, 28 Ohio St., 200 ; Cohurii vs. Webb, 56 Ind., 96 ; 
 Draper \8. Wood, 112 Mass., 315. 
 
 If the jury believe from the evidence that since the defend- 
 ant signed his name to the note In question, the same has been 
 altered without the defendant's knowledge or consent, by add- 
 ing the words, etc. — then the said note is void as to him, unless 
 the jury believe from the evidence that the defendant has in 
 some manner since the alteration was made ratified the same, 
 as explained in these instructions upon this point. Hamilton 
 vs. Hooper, 46 la., 515. 
 
 If the jury believe from the evidence that the (paper) read 
 in evidence by the plaintiff was changed or altered, by insert- 
 ing the words, etc. — by the plaintiff or by any one acting for 
 liim with his consent, but without the consent of the defendant, 
 after it was delivered to the plaintiff, then the jury should 
 entirely disregard such '^paper) as evidence in the case — unless 
 the jury further believe from the evidence that the defendant 
 has in some way ratified the alteration since it was made. 
 
 And in determining whether such change or alteration has 
 been made, the jury may take into consideration the appear- 
 ance of the paper, the statement of the witnesses, as well as 
 any and all otlier evidence of any fact or circumstance proved 
 in the case, tending to throw any light upon that question, 
 Gomstock vs. Smith, 26 Mich., 300. 
 
 § 2. Not Affected by Immaterial Alteration. — The jury are 
 instructed, that it is iiot every alteration in a written instru- 
 ment which will render it void against the maker, when done 
 without liis consent; to have that effect the alteration must 
 bo a material one, so as to change the terms of the instru-
 
 ALTERATION OF "WKITTEN INSTRUMENTS. 71 
 
 meiit; and in this case, althongh tlic jury may believe from 
 tlie evidence that the note in question, since it was made and 
 delivered, and without the consent of the defendant, has been 
 changed by erasing the words, etc. — and inserting, etc. — still 
 this would not be a material alteration, and would in no man- 
 ner affect the liability of the defendant thereon. Burnham 
 vs. Ayer, 35 :^. H. 351. 
 
 § 3. Alteration by a Stranger. — The jury arc instructed, 
 that tlie alteration of a written instrument by a stranger to it, 
 that is, by a person who is not the owner of it, and who claims 
 no interest under it, if done without the authority, consent or 
 knowledge of the owner or person interested in it, does not 
 render the instrument void, but the parties to it and those 
 claiming under them are still bound by its terms as originally 
 written. Brooks vs. Allen^ 62 Ind., 400; U. S. Bk. vs. Roberts^ 
 45 Wis., 373. 
 
 § 4. Alteration by Party not Authorized. — If a person profess- 
 ing to act as the agent of the holder or owner of a note makes 
 an alteration in it supposing he has authority to do so, when 
 in fact he has no such authority, then such alteration does not 
 render the note void. It will still be a subsisting obligation 
 according to its terms as originally written. 
 
 And in this case if the jury believe from the evidence that 
 the note in question was taken by the said A. B. as the agent 
 of C. D., this fact alone would not give him any authority to 
 alter the note, after he had received it from the defendant; 
 and if the jury further believe from the evidence that the 
 said A. B. after he had received said note did alter the same 
 by erasing the words " after maturity" without the knowledge 
 or consent of the defendant, this would not affect the plaintiff's 
 right of recovery on the note as originally written, provided 
 the jury further believe from the evidence that such alteration 
 was made without the knowledge or consent of the said C. D. 
 while he was the owner of the note. Brooks vs. Alleji, 62 
 Ind., 400. 
 
 That one who has been entrusted with a promissory note by 
 the maker to negotiate it has no implied authority to make an 
 alteration of any material stipulation expressed in the instru-
 
 72 ALTEKATIO:^ OF WRITTEN INSTRUMENTS. 
 
 ment; and it can make no difference whctlier an alteration is 
 favorable or unfavorable to the maker of the note; if made 
 without his knowledge or consent it renders the note void as 
 to him. Cohurn vs. Wehb, 56 Ind., 96; Lemay vs. Williams^ 
 32 Ark., 166; Hamilton vs. Hooper^ 46 la., 515; Greenfield 
 /Sav. BJc. vs. Stoioell, 123 Mass., 19G; Ilewins vs. Cargill^ 67 
 Me., 554; Aldrich vs. Sinith, 37 Mich., 408. 
 
 § 5. Alteration Adopted by Maker. — Although the Jury may 
 believe, from the evidence, that since the note was made and 
 delivered, it has been altered by striking out the words, etc., 
 —and inserting the words, etc., — still, if the jury further 
 believe, from the evidence, that since the said alteration was 
 made, and with full knowledge of all the facts, the defendant 
 lias promised to pay it, then he will be deemed to have adopted 
 the alteration, and will be bound to the same extent as though 
 the alteration had been made before the note was delivered. 
 Goodsjpeed vs. Cutler^ 75 111., 534; £van8 vs. Foreman, 60 
 Mo., 449; Steioart vs. First iV. Blc., 40 Midi., 348; KilMly 
 vs. Martin, 34 Wis., 635; Prouty vs. Wilson, 123 Mass., 297. 
 
 Note. — Upon the question, -whether the law presumes an evident altera- 
 tion or interlineation, in a written instrument, to have been made before or 
 after execution, the authorities are in conflict. 2 Pars, on Cont., 722, and 
 Note y. 
 
 § 6. Presumed to be Made after Execution. — The court in- 
 structs the jury, that all material interlineations in a deed are 
 presumed to have been made after the execution of the same, 
 and they render the deed void, unless they are explained by 
 the party claiming the benefit thereof; and in this case the 
 jury will consider the deed purporting to be executed by J. S. 
 to C, and read in evidence by the defendant, as void and 
 worthless, unless they believe, from the evidence, and from the 
 appearance of the deed, that the interlineations or erasures in 
 question, were made before or at the time of the execution 
 and delivery of the deed, or with the consent of the maker 
 thereof. Montag vs. Linn, 23 111., 551; 2 Pars, on Cont.> 
 721. 
 
 § 7. No Presumption of Law as to When Alteration Was Made. 
 — Where an instrument otiered in evidence has the appear-
 
 ALTEKATION OF WKIT'I'KN INSTRUMENTS. 73 
 
 ance of liaving been altered, as when a portion of it is in dif- 
 ferent ink, or handwriting, from the other portions, the law 
 raises no presum[)tion as to when the change was made, or by 
 whom; but these are questions of fact to be found by the jury; 
 and in determining these questions the jury should look at the 
 instrument itself, as well as to all the circumstances in evi- 
 dence, for an explanation, and thus determine whether the 
 alteration was before or after the execution of the instrument, 
 and with or without the consent of the maker. Milliken vs. 
 Martin, 06 111., 13. 
 
 In this case the parties have both introduced evidence tending 
 to show when the alleged alteration (or erasure) in the deed 
 from A. to B. was made, and in such cases the burden of proof 
 is upon (the party offering the deed) to show by a preponder 
 ance of evidence that the alleged alteration (or erasure) if one 
 has been made, was made before the deed was delivered; and 
 if the jury believe, from the evidence, that the deed in ques- 
 tion has been altered by, etc., then, unless (the party) has shown 
 by a preponderance of evidence that such alteration was made 
 before or at the time the deed was delivered, then such alter- 
 ation renders the deed void, and the jury should find, etc. 
 Willett vs. Shepard, 34 Mich., 106; Tyree vs. Eives, 57 
 Ala., 173; Haynes vs. Haynes, 33 Ohio St., 598.
 
 CHAPTER VI. 
 
 APPLICATION OF PAYMENTS. 
 
 Sec. 1. Debtor may direct, if be does not, creditor may. 
 2. When neither do, then the law will. 
 
 § 1. Debtor May Direct, If He Does Not, Creditor May.— The 
 jury are instructed, that tlie rule of law is, that a debtor, owing 
 his creditor money on distinct accounts which are all due, may 
 direct his payments to be applied upon either debt, as he 
 pleases. If the debtor makes no such appropriation, then the 
 creditor may apply the money as he sees fit; and if neither 
 party make a specific appropriation of the money, the law will 
 appropriate it as the justice and equity of the case may require. 
 2 Parsons on Cont., 629; Bon'nell vs. Wilder, 67 111., 327; 
 Whittciker vs. Grovcr, 54 Ga., 174; Jones vs. Williams.^ 39 
 Wis., 300; Mich. A. liy. Co. vs. Mellen, 44 Mich., 321. 
 
 Where one person is indebted to another upon different 
 accounts, or for different debts, and the debtor makes a pay- 
 ment, he has a right to direct upon which debt the payment 
 shall be applied, and if he does so direct the payment, the 
 creditor must apply the payment as directed. Miles vs. 
 Ogden, 54 Wis., 573. 
 
 A debtor, paying money to his creditor, has a right to direct 
 now it shall be applied, and the creditor has no right to dis- 
 regard the directions of the debtor in that respect. When the 
 debtor directs the application of money at the time of pay- 
 ment, such application can not be changed by the creditor 
 without the consent of the debtor. JacJcson vs. Bailey., 12 
 111., 159. Detroit II. & S. W. R. Co. vs. Smith, 50 Mich., 112. 
 
 If you believe, from the evidenc3, that at tlie time of the 
 alleged ]ra3'ments the defendant owed the plaintiff upon two 
 different accounts, both of which were due, and that the de- 
 fendant made ]\iym"nts to the plaintiff without designating 
 the debts to which such payments should be ajiplied, then the 
 
 (74)
 
 Al'I'I.ICATION OF PAYMENTS. 75 
 
 plahitifT had the right to make tlic aj)i)!ication to such debt as 
 he saw lit. Bean vs. Brown^ 54 N. II., 395. 
 
 § 2. AVhen Neither the Creditor nor the Debtor M<akes an Ap- 
 plication of the Payment, Tlien the Law Will 3Iake It. — When a 
 creditor holds two debts against anotlier, and one is secured 
 and the other not, and payments have been made by the debt- 
 or, and there is no evidence that he directed their applica- 
 tion, and no evidence of how they were applied, the law will 
 presume they were credited on the debt for which there was 
 no security. Hare vs. IStegall^ 60 III., 380. 
 
 When a debtor owes a creditor several debts, and makes 
 payments, he has a right to direct their application to any one 
 or more of the debts, as he may choose; but if he makes pay- 
 ments and gives no directions, then the creditor may apply 
 them as he may choose. When such payments are made, and 
 neither party makes the application, the law will apply them 
 in the manner most advantageous to the creditor. Harman 
 vs. Eiigleman, 49 Wis., 278; Langdon vs. Bowen^ 46 Yt, 512. 
 
 And if you further believe, from the evidence, that neither 
 the plaintiff nor the defendant made any specific application 
 of the payments, then the law will apply the payments upon 
 that debt which was first due in point of time. Sprague et al. 
 vs. HazenwinJcle^ 53 111., 419; Alle7i vs. Brown, 39 la., 330; 
 Mills vs. Samider, 4 Neb., 190; Nortlily vs. Emmerson, 16 
 Mass., 374; ^i. Allans vs. Fairley, 46 Yt., 448.
 
 CHAPTEE VII. 
 ATTACHMENT— PLEA TRAVERSING AFFIDAVIT. 
 
 Sec. 1. Non-residence. 
 
 2. About to depart from the State, etc. 
 
 3. What is not a departing from the State. 
 
 4. About to depart from the State, how proved. 
 
 5. Intent to depart, how shown. 
 
 6. Attachment on the ground of fraud. 
 
 § 1. Non-resident of the State. — If the jury believe, from the 
 evidence, that the defendant, G. "W. N., has not maintained a 
 residence in the State of Illinois previous, and did not reside 
 in this state at the issuing of the attachment in this case, ac- 
 cording to the legal interpretation of the word, as laid down 
 in these instructions ; that he had no fixed place of abode or 
 
 habitation; that he never kept house in ]\I ; that he spent 
 
 only a portion of his time in Illinois; that his family was 
 divided, unsettled and constantly moving about, part of the 
 time in Illinois and part of the time at some place or ])laces in 
 some of the eastern states, then the defendant was not a res- 
 ident of the State of Illinois in the true intent and meaning of 
 the statute, and they will find for the plaintiff, Pullian vs. 
 N'elson, 28 111., 112. See Residence and Domicile. 
 
 § 2. About to Depart from the State, etc. — The court instructs 
 the jury that the burden of proof is upon the plaintiff to es- 
 tablish, affii-matively, that the defendant was about to depart 
 from the state, with the intention of removing his effects 
 therefrom, at the date of the affidavit in question; and that a 
 failure to establish, by a preponderance of proof, either the 
 intention to remove from the state, or his intention to remove 
 his pro[;erty from the state, will entitle the defendant to a 
 verdict. Ilawldns vs. Alhriyht, 70 111., 87; Costonvs. Paige^ 
 9 Ohio St., 397 ; Hermann vs. Amedu, 30 La. Ann., 393. 
 
 The court instructs vou, that in order to sustain an attach- 
 
 (76)
 
 ATTACHMENT. 77 
 
 ment on the c^i-ouikI tliat tlio debtor is about to dejart from 
 the state, with the intention of having liis ell'ects- removed 
 from this state, it nnist ajipear from the evidence: 
 
 1st. That the debtor was about to depart from the state; 
 and, 2d, that such departure was witli the intention of having 
 his effects removed from the state. 
 
 § 3. What is Not a Departing from the State. — That to author- 
 ize the issuing of an attachment against the property of a 
 person, it is not enough that such person has expressed an in- 
 tention of removing from the state at some future time, but 
 the jury must believe, from the evidence, that the person was, 
 at tJie time of the issuing of the attachment writ, then about 
 to depart from the state. And in this case, unless the jury be- 
 lieve, from the evidence, that the defendant, at the time the 
 affidavit in question was made, was then about to remove from 
 the state, with the intention of having his effects removed 
 therefrom, they should find for the defendant. 
 
 The court instructs you that the simple fact of a debtor pre- 
 paring to depart from the state, with the intention of remov- 
 ing a ])ortion of his effects therefrom, is not of itself a suffi- 
 cient ground to sustain an attachment; provided you believe, 
 from the evidence, that there would remain other pro]3erty of 
 the debtor in this state sufficient to pay his debts, and that 
 there w^as no intention to withhold the payment of the debt 
 upon which this suit is brought. 
 
 § 4. About to Depart from the State — How Proved. — Tlie jury 
 are instructed that, in order to sustain the attachment writ in 
 this case, it is not necessary for the plaintiff to prove that the 
 defendant was about to remove from the state on the very day 
 the suit was begun; it is sufficient, if it appears from the evi- 
 dence, that the defendant was intending to leave the state, 
 with his property, within so short a time that it would pre- 
 vent the plaintiff from collecting his debt by an ordinary suit 
 at law. 
 
 Yon are instructed that if you believe, from the evidence, 
 that the defendant, at the date of the suing out of the writ of 
 attachment, was about to depart from this state, with the in-
 
 78 ATTACHMENT. 
 
 tention of having his effects removed from thip state, then you 
 should fiud the issue, as to tlie truth of the affidavit, in favor 
 of the plaintiff. 
 
 If you believe from the evidence that at the time the 
 attachment writ in this case was sued out the defendant had 
 property in * * * county in this state sufficient to 
 satisfy the amount of all indebtedness owing by him, which 
 was liable to execution, and which the defendant was not 
 about to remove from the state, and which might have been 
 discovered and reached by the plaintiff" by the exercise of 
 reasonable diligence, to satisfy any judgment which the cred- 
 itors of the defendant might obtain against him, then, as a 
 matter of law, you should tind that defendant was not about 
 to remove his property from this state, etc. 
 
 If you believe from the evidence that at the time when the 
 affidavit in question was made by the plaintiff, defendant 
 was indebted to plaintiff, and that defendant had departed 
 from this state with the intention of having his effects re- 
 moved from this state^ or that he was about to depart from 
 this state with the intention of liaving his effects removed 
 from this state, to the injuiy of the plaintiffs, and that such 
 removal, if accomplished, would have been an injury to the 
 plaintiff's, then you should find the issue upon the attachment 
 affidavit in favor of the plaintiffs. 
 
 § 5. Intent to Depart — How Shown, — The jury are in- 
 structed, that the intention of the defendant regarding his 
 alleged intention to remove, and whether in fact he was 
 about to remove himself or his property or effects from this 
 state, to the injury of the plaintiff, may be inferred from all 
 the circumstances given in evidence, including his declarations 
 and his conduct so far as they appear in evidence and have 
 any bearing upon those points — in other words, his intentions, 
 and whether he was about to carry out such intentions, may 
 be ascertained by you from all the various circumstances from 
 which reasonable men in the everyday concerns of life judge 
 of each other's intentions, so far as these various circum- 
 stances are shown by the evidence. 
 
 You are further instructed, that a party's intention to de- 
 l^art from the state, and to remove his ])roperty therefrom,
 
 ATTACHMENT. 79 
 
 can only be shown by liis acts and statements, and a parly will 
 be presumed to have intended what such acts and statements 
 fairly and reasonably imply. 
 
 And in this case, if you believe, from the evidence, that the 
 acts and statements of the defendant, at and about the time 
 the affidavit in question was made, were such as fairly and 
 reasonably showed an intention on his part, at that time, to 
 remove from the state, with the intention of havinjr his effects 
 removed therefrom, to the injury of his creditors, you should 
 find for the plaintiff. 
 
 § 6. Attachment on the Ground of Fraud. — Tliat the only issue 
 lor the jury to try is the one formed upon the affidavit in 
 attachment; and that is, whether or not, at the time the 
 attachment writ was sued out, the defendant was about to 
 fraudulently assign, conceal, or otherwise dispose of his prop- 
 erty, so as to hinder or delay his creditors in the collection of 
 their debts. McCrosky vs. Leach, 63 111., 61; Miller vs. 
 McN'air, 65 Wis., 452; Davison vs. IlacTcett, 49 Wis., 186. 
 
 The fraud, as alleged, is one of the substantial charges made 
 by the plaintiff in the affidavit, and it must be proved by a 
 preponderance of the evidence, as the law never presumes 
 fraud without evidence tending to show it. And, although 
 you may believe, from the evidence, that the defendant was 
 then about to assign and dispose of portions of his property, 
 still, unless the plaintiff has proved, by a preponderance of 
 the evidence, the fraudulent intent, as charged in the affidavit, 
 you should find the issues for the defendant. Lordxs. Defen- 
 dorf, 54 Wis., 496. 
 
 The law presumes that the business transactions of every man 
 are done in good faith and for an honest purpose, and any one 
 who alleges that such acts are done in bad faith, or for a dis- 
 honest ])urpose, takes upon himself the burden of showing, 
 by specific acts and circumstances tending to prove fraud, that 
 such acts were done in bad faith. And in this case, before 
 you would be warranted in finding a verdict for the plaintiff, 
 upon the issue of the truth of the afii lavit, you must believe, 
 from the evidence, that the defendant, at the time the attach- 
 ment writ was sued out, M'as about to fraudulently assign, con- 
 ceal, or otherwise dispose of his property, so as to hinder or 
 delay his creditors.
 
 CHAPTER VIII. 
 DEBT ON BOND. 
 
 Sec. 1. Presumption from proof of signature. 
 
 2. Sureties bound by action of principal. 
 
 3. Extent of agent's authority. 
 
 4. What proved by the record. 
 
 JMOTE. — Suit on replevin bond given to the coroner — Property replevied 
 from the sheriff, who held it on writ of attachment — Plea, non est factum — 
 Defence by the sureties, that they signed the bond in blank. 
 
 § 1, Pi*esximi)tion from Proof of Signature. — Tlie court in- 
 structs tlie jury, that if they believe, from the evidence, that 
 the signatures to the replevin bond introduced in evidence in 
 this case, are the genuine signatures of the defendants, then, 
 if there is no proof to the contrary, the presumption of law 
 is, that the said bond was signed and sealed by the defend- 
 ants, after the body of the bond was filled up, as it now 
 appears to be; and that it was regularly and properly de- 
 livered to the plain Lift, as coroner, in its present condition, 
 and that all the defendants intended it should be so delivered. 
 
 If you believe, from the evidence, that the defendants 
 signed the said replevin bond, with a blank space left in it 
 for the insertion of the penalty of said bond, knowing of such 
 blank space, and then delivered the same so signed to T. E., 
 or to his agent, with the intention that the said blank should 
 be filled, so as to make the bond an apparently perfect instru- 
 ment, and that the same should then be delivered to the said 
 plaintiff as a re]5levin bond in said case, and that it was there- 
 after presented to the ]ilaintiff, and accepted by him without 
 any notice, or knowledge on his part, that the same was 
 signed with the amount of the penalty in blank, and that 
 the plaintiff then had no knowledge or notice in respect to 
 eaid bond, beyond what now appears upon the face of it, then 
 you are instructed that said bond is valid and binding upon 
 the said defendants, and to the same extent that it would 
 
 (SO)
 
 DEBT ON IJOND. 81 
 
 have been if tlie said penalty had been written in, as the same 
 now ap|)ears, before the said defendants signed the same. 
 S/m't/i vs. Crookei\ 5 Mass., 538 ; State vs. Young et al.^ 23 
 Minn., "51 ; Inhabitants of S. Berwick vs. Huntress, 53 Me., 
 89 ; Pepper vs. State, 22 Ind., 309. 
 
 If you beh'eve, from the evidence, that the signatures to 
 the bond sued on in this case, are the genuine signatures of 
 the defendants, then, before any question of law can arise as 
 to any alleged signing of the same in blank, the burden of 
 iiroof is ujion the defendants to prove, by a preponderance of 
 evidence, that it was signed by them while there were blank 
 spaces in said bond not filled, as the same now aj)[;ear; and in 
 such case, unless the defendants have shown, by a prejjonder- 
 ance of evidence, that the said bond was signed by them while 
 there were such blank spaces unfilled, then, up,on that ques- 
 tion, you should find in favor of the plaintiff. 
 
 § 2. Sureties Bound by Action of their Principal. — Where the 
 sureties on a bond entrust it to their principal in an unfinished 
 condition, it will be presumed that they intend to vest him 
 with authority to perfect the bond, and to add other sureties 
 sufficient to secure its approval; and such authority is a con- 
 tinuing authority until some step is taken by the sureties 
 towards its revocation. Cawley, etc., vs. 27ie People, 95 111., 
 249; Pair vs. United States, IH Wall., 1. 
 
 If you believe, from the evidence, that the defendants, who 
 are sued as sureties in this case, signed the bond upon which 
 this suit is brought, while there was no writing in the body of 
 the piaper above their signatures, but a mere printed form, 
 with blank spaces left for the amount of the penalty and other 
 appropriate matters to make the same a perfect replevin bond, 
 they then knowing of such blank spaces; and that after they 
 had so signed the same, they delivered it to the said T. E., or 
 to his agent, with the understanding that such blank spaces 
 would be filled, so as to make it a perfect replevin bond, and 
 that it then would be delivered to the plaintiff, and that said 
 blank spaces were afterwards filled by the said T. E.,his agent 
 or attorney, as they now ai>|)ear; and that said bond was after- 
 wards presented to and accepted by the ])laintitf as a replevin 
 bond in said case, then the bond is valid and binding on tlie 
 6
 
 82 DEBT ON BOND. 
 
 defendants, no matter wliat Avas the nnderstandinf^ of tlic 
 parties at the time the defendants signed the same; provided 
 you further believe, from the evidence, that the plaintiff 
 when he accepted said bond, had no notice or knowledge of 
 such understanding or arrangement, or that the said bond had 
 been filled up otherwise than in accordance therewith. City 
 of Chicago \s,. Gage, 95 111., 593; Smith vs. GrooJcer,^ Mass., 
 583. 
 
 If you believe, from the evidence, that the said defendants, 
 or either of them, signed said bond while there was a blank, 
 left in it for the insertion of a penalty, and then delivered the 
 same to the witness A. E., as the agent of the said T. E., 
 for procuring said bond, with the understanding or agreement 
 on his part that the said blank should only be filled with a 
 penalty of four thousand dollars, and the said A. E., or the 
 said T. E., afterwards filled the said blank, or caused it to be 
 filled, with a penalty of eight thousand dollars; and if j^ou 
 further believe, from the evidence, that the said bond was 
 afterwards ])resented to and accepted by the ])laintiff as the 
 replevin bond in that case, without an^' notice or knowledge 
 on his part of such agreement or understanding, and without 
 any notice or knowledge in respect thereto, then the said bond 
 is as valid and binding in the hands of the plaintiff as though 
 no such agreement or understanding had been made or had. 
 City of Chicago vs. Gage, 95 111., ^593; Butler v. U. S., 21 
 Wall, 272; Wright vs. Harris, 31 la., 272; State vs. Pepper. 
 31 Ind., 70. 
 
 The court insti'ucts you, that although they may believe, 
 from the evidence, that the name of the defendant ]\I. was 
 written into the body of the bond, and also signed to the same, 
 after it had been signed by the other parties thereto, and after 
 it had been shown to the plaintiff, these facts alone would not 
 render said bond invalid as to such other parties; provided 
 you further believe, from the evidence, that said name was 
 written in and signed to said bond before the same was accejited 
 and approved by the ])laintiff, as the replevin bond in the case 
 mentioned therein. 
 
 You are instructed, that when the sureties on a bond sign 
 it in blank, and deliver it in that condition to the principal, 
 knowing, or having reason to know, that the princii)al intends
 
 DEBT ON EOND. 83 
 
 to fill the bliuilvS and deliver the same to the obligee, for the 
 purpose of obtaining possession of property on ihe faith of the 
 bond, and the principal afterwards fills the blanks, delivers 
 the bond, and obtains the pro])crtj, then the law will presume 
 that the sureties authorized the principal to fill the blanks, 
 and the sureties will be bound by the acts of the princijial to 
 the same extent that they would be bound, had the blanks been 
 filled before the said bond was signed by them; provided, the 
 ])erson receiving the bond, at the time he received it, had no 
 notice or knowled^re that the blanks in the bond were filled uj) 
 otherwise than in accordance with the instructions or under- 
 standing of the sureties. Butler vs. United States, 21 Wall., 
 272; Bartlett vs. The Board of, etc., 59 111., 364; Peper vs. 
 State, 22 Ind., 399; City of Chicago vs. Gage, 95 111., 593; 
 McCormick vs. Bay City, 23 Mich., 457; Staters. Young, 23 
 Minn., 551. 
 
 Where the surety in a bond signs it and delivers it to the 
 princijal, with the understanding that the principal shall pro- 
 cure others to sign the bond, before delivering it to the obligee, 
 and that after procuring such signatures, he may deliver it, 
 and the principal delivers the bond to the obligee without pro- 
 curing the signatures, the obligee, in absence of notice to the 
 contrary, has a right to presume that the principal was author- 
 ized to deliver the bond in the condition in which it was 
 delivered. Smith vs. The Board of Sujpervis'jrs, 59 111., 412. 
 
 § 3. Extent of Agent's Authority. — That a special agent's 
 authority is that which is given by the terms of his appoint- 
 ment, or that with which he is apparently clothed by the char- 
 acter in which he is held out to the world by the principal. 
 The principal is equally bound by the authority which he 
 actually gives, and by that which, by his own acts, he api)ears 
 to give; and when one of two innocent persons must suffer by 
 the act of a third person, he who has enabled such person to 
 occasion the loss must bear it. 
 
 § 4. Wliat Proved by the Record. — The couit instructs the 
 jury, that the certified copy of the record of judgment in the 
 replevin case of J. E. vs. T. 31. R. and others, is sufficient 
 evidence that the said J. E. did not prosecute that suit with
 
 84 DEDT ON EOKD. 
 
 effect, and that a return of llie property replevied in that case 
 was awarded by the coiii-t to the defendants in that suit. 
 
 If you believe, from the evidence, and under the instruction 
 of the court, that the bond sued on in this case was a valid 
 and bindino^ bond upon the defendants, and that the property 
 mentioned and described in the declaration in the replevin suit 
 of J. E. vs. T. 21. B. and others^ was not returned to the 
 defendants in that suit, or to any of them, before the com- 
 mencement of this suit, then you should find the issues in this 
 suit in favor of the plaintiff.
 
 CHAPTER IX. 
 
 DELlVEEr OF DEEDS. 
 
 Sec. 1. Deod takes effect from time of delivery. 
 
 2. What constitutes delivery. 
 
 3. No particular form or ceremony necessary. 
 
 4. Official bond — Delivery. 
 
 § 1. Deed Takes Effect from Time of Delivery. — The court 
 instructs the jury, that when the date of a deed and the de- 
 livery are different, a deed of real estate takes effect from the 
 date of its delivery, and not from the date of the deed. 3 
 Washburn R E., 257. 
 
 § 2. What Constitutes Delivery.— To constitute a delivery of 
 a deed the person who makes the deed must not only part with 
 the possession of it, but he must part with the right to con- 
 trol it, and with the right to recall it. 3 Washburn E. E., 251. 
 
 And if you believe, from the evidence in this case, that the 
 defendant executed the deed in question, sent it to the record- 
 er's office, and had it recorded, and then received it back again 
 into his possession, such fact alone would not constitute a deliv- 
 ery, and no title would pass until such deed was delivered to 
 the grantee or to some one for him. Watso?i v. Ryan., 3 Tonn., 
 Ch. 40; Boufes vs. Schultze, 2 Brad. (111. App.), 196. 
 
 § 3. No Particular Form or Ceremony Necessary. — The court 
 instructs the jury, that no particular form or ceremony is 
 iijcessary to constitute a delivery of a deed. It may be by 
 acts without words, or by words without acts, or by both ; 
 anything which clearly manifests the intention of the gi-antor 
 and of the person to whom it is delivered, that the deed shall 
 then become operative and effectual, that the grantor shall 
 lose all control over it, and that by it the grantee is to become 
 possessed of the estate, is a sufficient deliveiy. Gunnell vs. 
 Cockerill, 79 111., 79; Thatcher vs. St. Andrews Church, 37 
 Mich., 264. 
 
 (85)
 
 56 DELIVERY OF DEEDS. 
 
 A deed may be dclivore<:I to a str.mger, for tlie benefit of 
 the grantee named in the deed, who may be ignorant at the 
 time that the deed has been made, and if the grantee, when 
 informed uf the fact, assents to and accepts the conveyance, 
 the deed will take effect, and vest the title in the grantee; 
 unless the evidence shows that the rights of third parties have 
 intervened in the meantime. McPherson vs. Featherdone et 
 at., 37 Wis., 632; Concord Banh vs. BeUis, 10 Cush., 276. 
 
 The question of the delivery of a deed is one of act and in- 
 tent both; the fact that a deed passes from the hands of the 
 grantor to the grantee, if proved, is not necessarily a delivery 
 of the deed, within the meaning of the law. To constitute a 
 delivery, it must be delivered by the grantor and accepted by 
 the grantee, or by some one authorized by him, with the in- 
 tention that it shall then be an operative instrument, accord- 
 ing to its terms. Steele vs. Miller, 40 la., 402; Stiles vs. 
 Frolst, 69 111., 362. 
 
 You are instructed, that the delivery of a deed need not 
 necessarily be made to the grantee himself. If made to any 
 person for the grantee, and it is absolute and unconditional 
 and it appears to be for the grantee's benefit, his assent to the 
 delivery will be presumed. TJwmas vs. Candor, 60 111., 244. 
 
 § 4. Official Bond, How Delivered and Accepted. — Tlie juiy are 
 instructed, that the delivery of a bond {of county treasurer) is 
 not complete until it is acce])ted and approved by the board 
 of supervisors. The bond can only be accepted or rejected by 
 the board, as an organized body; the power cannot be dele- 
 gated. Cawletj vs. The People, 95 111., 249.
 
 CHAPTER X. 
 
 CARRIERS OF GOODS. 
 
 Sec. 1. Who is a common carrier of goods. 
 
 2. Liability of carrier for goods. 
 
 3. Tlie law of the State where the goods are to be delivered, governs. 
 
 4. Liability for all losses except by the act of God, etc. 
 
 5. What is meant by the act of God. 
 
 6. What is not an act of God. 
 
 7. Inevitable accident, what. 
 
 8. Must use reasonable care to avoid injury by act of God, etc. 
 
 9. Written receipt not required. 
 
 10. Line made up of several carriers. 
 
 11. First carrier liable, when (Illinois). 
 
 12. When liability of carrier commences. 
 
 13. Liability continues how long. 
 
 14. If goods are not delivered to consignee, they must be stored. 
 
 15. Railroad companies are not bound to deliver to consignee per- 
 
 sonally. 
 
 16. Express companies, duty and liability. 
 
 17. Warehousemen, care required of. 
 
 18. What is ordinary diligence and care. 
 
 19. Must carry within a reasonable time. 
 
 20. Shipping perishable property. 
 
 21. Receipt, -when 2'>f>ma facie evidence of goods in good order. 
 
 22. Bill of lading implies what — Contract. 
 
 23. Bill of lading, not conclusive of condition of goods. 
 
 24. Carrier does not insure condition of the goods. 
 
 25. Can restrict their common law liability only by special contract. 
 
 26. Legal duties imposed by law. 
 
 27. Exemption clause in receipt not binding. 
 
 28. Shipper will be presumed to agree to exemption clause, when. 
 
 29. Burden on the carrier to show loss within the exemption. 
 
 30. Liability not limited by notice. 
 
 31. Must exercise reasonable care to prevent loss within exemption. 
 
 32. Shipper bound by receipt, when. 
 
 33. Shipper not bound by notice printed on receipt. 
 
 34. Can not restrict liability arising from its own negligence. 
 
 35. Burden of proof. 
 
 Note. — In considering the following instructions, relating to common 
 carriers, it must be borne in mind that their liabilities are regulated by 
 statute in many of the states, and, consequently, they may not be the same 
 in different states. It is more especially true as regards their right to limit 
 their common law liability. 
 
 (87) .
 
 8S CAKKIEKS OF GOODS, 
 
 § 1. AVho is a Common Carrier of Goj*ds. — The jury arc 
 instrncted, that one wli", for liirc, carries passengers and their 
 baggage, or baggage al )ne, for all persons choosing to employ 
 him, from, to and between railroad depots and hotels, and 
 other places in a cit}^ is a common carrier of goods. Par- 
 o/ielee vs. Lowitz^ 74 111., 116; 2 Am. and Eng. Enc, TSl. 
 
 You are instructed, that express companies and railway 
 companies are common carriers, and are liable as such; they 
 are insurers for the safe delivery of the property inti'usted to 
 them for transportation; and they will not be excused for its 
 non-delivery, except they are prevented from delivei'ing it by 
 an act of God, or the juibiic enemy. Cooley on Torts, 640; 
 Edws. on Bail, § 551; Morrison vs. Davis, 20 Penn. St., 171; 
 Railroad Co. vs. Reeves^ 10 Wall., 176; Sherman vs. Welles, 
 2S Barb., 403; Langworthy vs. N. Y. & II. Rij. Co., 2 E. D. 
 Smith, 195. 
 
 § 2. Liability of Common Carriers of Goods. — The jury are 
 instructed, that a common carrier of goods, who receives and 
 undertakes to carry a trunk, for one not a passenger with such 
 carrier, is responsible for the delivery of the trunk and its 
 contents, as against everything but the act of God or the pub- 
 lic enemies, notwithstanding they consist of articles not usually- 
 carried as baggage, unless the owner has been guilty of some 
 fraud or deception in relation to the contents of gaid trunk. 
 Parmelee vs. Lowitz, 74 111., 116. 
 
 § 3. The Law of the State where the Goods are Delivered, 
 Governs. — The jury are instructed, that when goods are deliv- 
 ered to a common carrier in this state, and marked to a par- 
 ticular place or destination, the carrier im])liedly agrees to 
 carry and deliver the goods at that place, although it may be 
 beyond its own lines of carrying, unless there is sonic special 
 contract relieving the carrier from such implied obligation. 
 Cooley on Torts, 640; Milwaxihee, etc., Rd. vs. Sinith, 74 111., 
 197; Bohannan vs. Hammond, 42 Cal., 227; McMillan vs. 
 Mich., etc., Rd. Co., 16 Mich., 78. 
 
 § 4. Liable for all Loss, except by Act of God, etc. — The 
 
 court instructs the jurj', that a common carrier is liable for all
 
 CARRIERS OF GOODS. 89 
 
 losses of goods wlilcli do not arise from the act of God, or 
 the public enemies; while a warehouseman is only liable for 
 such losses as might have been guarded against by the exev- 
 cise, on his part, of ordinary care and diligence. -6'^. Z., A. c& 
 T. H. R. R Co. vs. Ilontgomery, 39 111., 335; Ked. Car , § 24, 
 25. 
 
 You are instructed, that where a common carrier undei-- 
 takes to transport goods, he will be held liable for their loss 
 or destruction, in the absence of a special contract in that 
 behalf, unless the loss or destruction was caused by the act 
 of God, or the public enemy. 
 
 § 5. What is Meant by Act of (rotl. — By the term, act of God, 
 IS meant superhuman — something beyond the power of man 
 to foresee or guard against. It means inevitable accident — 
 something that happens without the intervention of man. A 
 loss by fire is not a loss by act of God. Mer. D'lsjp. Go. vs. 
 Smith, 76 111., 512; Rod. on Car., Sec. 24. 
 
 By the term, act of God, is meant those events and accidents 
 which i)roc3ed from natural causes, and cannot be anticipated 
 and guarded against, or resisted; such as unexampled freshets, 
 violent storms, lightning and frosts. For losses occurring by 
 any of these means, a common carrier is not liable; provided, 
 he has not been guilty of any want of ordinary and reasonable 
 care to guard against such loss. Michaels vs. ISf. Y. Cent., 
 Ed. Co., 30 n! Y., 564; Parlier vs. Flag, 26 Me., 181; 
 Moore vs. Mich. Ed., 3 Mich., 23 ; Cox vs. Petterson, 30 Ala., 
 608 ; Chevallier vs. Siraham, 2 Tex., 115. 
 
 § 6. What is not an Act of God. — If the jury believe, from 
 the evidence, that the injury complained of could have been 
 jirevented by * * ^, or by any other means known and 
 recognized as suitable and proper for the purpose, then the 
 injury was not produced by an act of God, within the meaning 
 of the law. Bed. on Car., § 25. 
 
 § 7. Inevitable Accident, What. — If the jury believe, from 
 the evidence, tluit the injury complained of was the result of 
 inevitable accident, then the jury should find for the defend- 
 ant. And the jury are instructed, that the import and mean-
 
 'JO CAKKIEKS OF GOODS. 
 
 ing of the words " iiiGvitable accident" is this: Where one 
 is pnrsning a lawful avocation in a lawful manner, and some- 
 thing occurs which no ordinary skill or precaution could fore- 
 see or prevent, and, as a consequence, tlie accident takes place, 
 this is called inevitable accident. Red. on Car., etc., § 28. 
 
 § 8. Carrier Must Use Reasonable Care to Avoid Iiyury by Act 
 of God. — The jury are instructed, that a common carrier is 
 bound to use reasonable care and diligence to prevent loss or 
 injury to goods intrusted to it, by what are termed acts of 
 God ; that is, such care and diligence as ordinarily prudent 
 men usually exercise towards their own property, under like 
 circumstances; and if the carrier do not use such care and 
 diligence, and loss or damage results therefrom, he will be 
 liable therefor. 
 
 AV'hether, in this case, such care and diligence were or were 
 not used by the defendant, and whether any loss resulted 
 therefrom, are questions to be determined by the jury, in view 
 of all the facts and circumstances proved on the trial. Jll. 
 Cent. Rcl. Co. vs. McClellan, 54 III, 58. 
 
 § 9. Written Receipt Not Required. — The jury are instructed, 
 that to charge a common carrier with the receipt of goods, it 
 is not necessary that any written receipt should be given; 
 provided, tlie jury believe from the evidence, that the prop- 
 erty in question had actually come into the possessioTi of the 
 carrier, to be transported by it, and that it was afterwards 
 lost or destroyed, as alleged in the declai-ation. / C. Rd. 
 Co. vs. Smyser., 38 111., 354; Ilickox vs. Namjatuck Rd.., 31 
 Conn., 281; Eod. on Car., etc., § 101. 
 
 § 10. Line Made up of Several Carriers. — The jury are in- 
 structed, that under the bill of lading introduced in evidence in 
 this case, the defendant was bound to transport the goods safely 
 to the end of its route, loss from the act of God or the public 
 enemies excepted, and then deliver them to (next carrier, etc.) 
 and in such case the company would not be relieved from its 
 liability as a common carrier by simply unloading the goods 
 and storing them in a warehouse without delivery to the next 
 carrier. Whether the defendant did unload and store the
 
 CARRIERS OF GOODS. 91 
 
 p^oods or did, etc., arc questions of fact to be determined by 
 the jury, from the evidence. Irish vs. Milwaukee IM. Co., 
 19 j\[inn., 376; yFfna Ins. Co. vs. Wheeler, 49 K Y., 616: 
 Dunson vs. N'. J^., etc., R. Co., 3 Laws, 265. 
 
 The law is, that where goods are delivered to a carrier 
 marked to a particular ])lace beyond or not upon the line of 
 such carrier and the goods are unaccompanied by any other 
 direction for their transportation and delivery, then the car- 
 rier is only bound to transfer and deliver tliem according to 
 the established usage of the business in which the carrier is 
 engaged, whether that usage were known to that other party 
 or not. Eed. on Car., § 185; Yansajitmord \?>. St. John, 6 Hill, 
 157; F. &M. Bank vs. Champlain Trans. Co., 18 Yt, 140; 
 Converse vs. JVbrwich Trans. Co., 33 Conn., 166; Montgomery, 
 etc., Rd. Co. vs. Moore, 51 Ala., 394; Crawford vs. Southern 
 Rd. Co., 51 Miss., 222. 
 
 That when parts of a continuous line or route of transpor- 
 tation are owned by different carriers, then, unless there is 
 some contract expressed or implied to the contrary, each 
 carrier is only liable for losses and injuries occurring on his 
 own particular portion of the route. Montgomery, etc., Rd, 
 Co. vs. Moore, 51 Ala., 394; Ortt vs. M. & St. L. R. Co., 31 
 K W. Eep., 519. 
 
 § 11. First Ciriier Liable, When — (Illinois.) — The court in- 
 structs the jury, that tlie rule in this state is, that when goods 
 are delivered to a common carrier, in this state, marked to a 
 place not upon or beyond its line of road, with no other direc- 
 tion, and without any express contract as to the place of deliv- 
 er}^, the law will imply an undertaking, on the ]iart of the 
 carrier, to transport tlie goods to and deliver them at the place 
 to which they are marked. Milwaukee, etc., Rd. Co. vs. 
 Smith, 74 111., 197. 
 
 You are further instructed, that when there is no special 
 contract to the contrary, and goods are lost by any one carrier 
 in a line composed of several carriers, the first to whom the 
 goods were delivered will be liable to the owner for the goods 
 lost and the owner is not required to sue the carrier who act- 
 ually lost the goods, provided you believe from tlie evidence 
 that the first carrier either expressly or imi)liedly agreed to
 
 92 CAKEIERS OF GOODS. 
 
 carry the goods to tlieir destination as exjilained in tlio instj'uc- 
 tioss upon that point. C. <& N. W. lid. Co. vs. N. Line P. 
 Co., 70 111., 217. 
 
 Ton are instructed, as a matter of law, that where several 
 carriers by agreement unite to complete a line of transj)orta- 
 tion, the freight to be divided between them in definite pro- 
 ])ortions, and one of them receives goods for one freight to be 
 paid for the whole line and gives a through bill of lading, 
 then each carrier is the agent of all the others, and each is 
 liable for any damage done to the goods on whatever part of 
 the line the damage is received ; and, in this case, you are 
 further instructed that the bill of lading introduced in evi- 
 dence recites that the gouds therein mentioned were received 
 by the defendant corj oratic n at C. to be carried to ]^. Y. 
 (freight to be ]:aid, etc.), and if you believe from the evidence 
 that the defendant corporation at the time the goods is-ere 
 received had an arrangement or agreement (with the other 
 common carriers) by which they were all to unite and form a 
 completed line of transportation between C. and X. Y., each of 
 the connecting companies to have an agreed or definite part 
 of the freight as between themsel.ves, then the defendant 
 would be liable for any damage or loss happening to the goods 
 on any part of the entire route. Harp vs. The Grand Era., 
 !• Woods, 184. 
 
 § 12. When the Liability of the Carrier Commences. — The law 
 is, that as soon as property is received into the exclusive pos- 
 session of the common carrier, with its knowledge and con- 
 sent, for the purpose of being shipped, then the liability of a 
 common carrier commences, no matter whether it is received 
 into a car, dei)ot or warehouse. Edwds, on Bail., § 528; Coyle 
 vs. Western., etc., Corp., 47 Barb., 152; Barren vs. JEldridye, 
 100 Mass., 455; Michigan, etc., Rd. Co. vs. Schurtz, 7 Mich., 
 515. 
 
 You are instructed, that the liabilit_y of a common carrier, 
 for the safe delivery of pro| erty which has come into its pos- 
 session, is the same, whether it was received directly from the 
 owner or from another carrier, to whom it had been origi- 
 nally delivered. Gulliver vs. Adams Ex. Co., 38 111., 503. 
 
 § 13. Liability Continues, How Long. — The court instructs
 
 CARKIEKS OF GOODS. 93 
 
 tlie jury, that cominon carriers of goods must deliver the 
 goods shipped by them to the owner or consignee at the point 
 of destination, or store the goods, subject to the order of tlie 
 consignee; and they cannot relieve themselves from their 
 liabilities as common carriers until the goods are delivered to 
 the owner or consignee, or till they are placed in a warehouse 
 for safe keeping; and there nnist be some open, distinct act of 
 deliver}' to a warehouse in order to change the liability from 
 that of a common carrier to that of a warehouseman, and the 
 proof of this change rests on the carrier. The liability of a 
 common carrier will continue until a different liability attaches 
 on the part of some one. C. i& R. I. Rd. Co. vs. Warren., 
 16 III, 502; Francis vs. D. & S. Citij Ed. Co., 25 la., 60. 
 
 Note. — The clutj' of railroad companies and other common carriers, in 
 respect to notifying: the consignee of tlie arrival of the goods, or of deliver- 
 ing to them personally, will be governed, to some extent, by custom and 
 usage, and by the former course of dealing between the parties; and, per- 
 haps, to some extent, by the circumstances of the case. Redfield on Carriers, 
 sees. 104-106; McMillen vs. Mich. Southern Rd. Co., 16 Mich., 79; Buck- 
 ley vs. G. W. Rd. Co., 18 Mich., 121. 
 
 Although you may believe from the evidence that the goods 
 in question were safely carried by the defendant to S. and 
 there unloaded and safely deposited in a reasonably safe ware- 
 house and were afterwards burned (or stolen) without any 
 negligence on the part of defendant, still the defendant would 
 be liable as a common carrier for the loss of the goods as 
 explained in the instructions upon that point, provided you 
 further believe from the evidence that the goods were burned 
 (or stolen) before the plaintiff had had notice of their arrival 
 and before he could, by the use of ordinary and reasonable 
 diligence, have learned of the arrival of the goods and have 
 had a reasonable time in which to remove them. Wood vs. 
 Crocker, 18 Wis., 315; Ala. c& Teiin. Rd. Co. vs. Kidd, 35 
 Ala., 209; McCartrieij vs. N. Y. & Erie Rd. Co., 30 Penn St.^ 
 247; 3£oses vs. Boston & Me. Rd. Co., 32 N. H., 523; Rome 
 Rd. Co. vs. Sullimn, 14 Ga., 277; Eed. on Car., etc., § 9, 10. 
 [f you believe from the evidence that the goods in question 
 were carried by the defendant to C, and then unloaded from 
 the cars and the ]^laintiff notified of their arrival, then it 
 would be the duty of the plaintiff to pay the freight and
 
 9i CAKEIEES OF GOODS. 
 
 charges and remove tlie goods within a reasonable time there- 
 after; and if jou further believe from the evidence tliat the 
 plaintiff did not within a reasonable time after such notice 
 offer to pay said freiglit and charges and take away the goods, 
 and that thegoods were afterwards burned (or stolen), then the 
 defendant would not be responsible for the loss of the goods — 
 provided you further believe from the evidence that the de- 
 fendant was at the time exercising such care for the safety of 
 the goods as an ordinarily prudent person would usually take 
 of his own property under the same circumstances. Red. on 
 Car., etc., § 109,110. 
 
 § 14. K Goods are not Delivered to Consignee, They Must be 
 Stored. — If the jury believe, from the evidence, that the goods 
 of the plaintiff were carried by the defendant to tlieir destina- 
 tion, and not then and there delivered to the plaintiff, or to 
 some one for him, by reason of there being no one there to 
 receive them, or for any other cause not the fault of the plaint- 
 iff, then it was the duty of the defendant to store the goods in 
 an ordinarily safe warehouse. 
 
 You are instructed, that it is the dut}' of a carrier of goods, 
 when the goods have arrived at the place of destination, to 
 unload and place them in a convenient place for delivery, and 
 if the consignee is there ready to receive them, to deliver them 
 to him ; but if he is not there, the carrier must store them in 
 a reasonably safe warehouse, or place them nnder the charge 
 of competent and careful servants, ready to be delivered when 
 called for by those entitled to receive them; and if the carrier 
 fails to do this, and the goods are thereby lost or injured, the 
 carrier will be liable to the owner for such loss or injury: 
 Caftn vs. Mich. Cent. Ed. Co., 71 111., 96. Red. on Car., etc., 
 § 108; Mechanids Bank vs. Trans. Co., 23 Yt, 211; I^ew 
 Alhany & S. ltd. Co. vs. Campbell, 12 Ind., 55. 
 
 If you believe, from the evidence, that the defendant 
 received the goods of the plaiutirf, to be transported by it, as 
 charged in the declaration, then the responsibility of the 
 defendant as a common carrier lasted until the plaintiff's goods 
 reached their destination and were delivered to the plaintiff, 
 or his authorized agent, or were, by the defendant, stored in 
 an ordinarily safe warehouse of its own or some one else.
 
 CAKEIKRS OF GOODS. 95 
 
 § 15. Railroad Companies are not Bound to Deliver to Consignee 
 Personally. — The court instructs the jury, that railroad com- 
 panies are not bound to deliver goods carried by them to the 
 consignee personally. When tlie goods have i-eached their 
 destination, and the consignee is not present to receive them, 
 then the carrier may store them in a suitable warehouse, and 
 when the goods are thus stored, the duty and liability of the 
 company as a common carrier is terminated, and that of the 
 warehouseman begins. Cooley on Torts, 642; Chicago da A. 
 Rd.Co. vs. Scott, 42 111., 121; Eed. on Car., § 106. 
 
 § 16. Duty and Liability of Express Companies. — That an ex- 
 press company, as a common carrier, is not only required to 
 trans]!ort the goods to the place of destination, but the further 
 duty is enjoined upon it to deliver the goods to the consignee, 
 at his residence or place of bus'ness, if, with the exercise of 
 reasonable care and efforts in that behalf, such residence or 
 ])lace of business can be found. 
 
 The court further instructs you that where goods trans- 
 ported by an express company are by it tendered to the con- 
 signee, and he fails to receive and pay for them, it is the duty 
 of the express company to so notify the consignor, and when 
 this is done, the comjjany is relieved of its responsibility as a 
 common carrier, and holds the goods as a warehouseman, 
 subject to the order of the consignor, and not before. 
 
 The court further instructs you, as a matter of law, that an 
 express company can discharge itself of responsibility, as a 
 common carrier, in no other way than by an actual delivery of 
 the goods to the proper person, at his residence or place of 
 business, when, with reasonable efforts,*these can be found, 
 except by proving that the company has been excused from 
 so doing, or prevented by an act of God, or the public enemy. 
 Am.. Merchants TJ. Ex. Co. vs. AYolf, 79 111., 430. Eed. Car., 
 etc., § 61 ; StadhecJter vs. Conibs, 9 Eich (S. C), 193. 
 
 It is the duty of an express comi^any, upon receiving a 
 package of money to be forwarded, to safely carry and deliver 
 it to the consignee, and the only way it can relieve itself from 
 this responsibility is by showing performance, or its ])re- 
 vention by the act of God, or a public enemy. And in this 
 case, if you believe, from the evidence, that the defendant, at
 
 96 CAKEIEES OF GOODS. 
 
 the time in question, was a common carrier, and as such ' 
 received the money in question, to be carried and delivered to 
 the plaintiff at K., and that tlie defendant delivered said 
 money to one E., on a writing ]Hir porting to be an order of 
 the plaintiff, and that said order was a forgery, then such 
 delivery will not excuse the defendant, and the plaintiff is 
 entitled to i-ecover the amount of said money. Am. M. U. 
 Ex. Co. vs. Milk, 73 111., 224. 
 
 § 17. Care required of Warehousemen. — The jury are further 
 instructed, that when the carrier assumes the duty of ware- 
 houseman, he is bound to use ordinary care and diligence in the 
 preservation of the property. The building in which the 
 goods are stored must be a reasonably safe one, and under the 
 charge of careful and competent servants. 
 
 And if you further believe, from the evidence, that after the 
 goods arrived at their destination, and after a reasonable time 
 for the consignee to call for and receive the same, the defend- 
 ant retained possession of them, such possession would be in 
 the capacity of a warehousckeeper of goods for hire, and as 
 such warehouseman, the defendant was bound to use all 
 ordinary diligence and caution in the care of the same. Edwd. 
 on Bail., § 336; (7A/c., R. I. i& P. Rd. Co. vs. Fairclough, 52 
 111., 106. 
 
 That the ordinary diligence or care which a warehouseman 
 is bound to use, is that degree of care and attention which, 
 under the same circumstances, a man of ordinary prudence 
 and discretion would ordinarily use in reference to the par- 
 ticular goods, if they were his own property. Mote vs. C. <& 
 N. W. Rd. Co., 27 la., 22; Francis vs. D. & 8. C. Rd. Co., 
 25 la., 60. 
 
 § 18. What is Ordinary Diligence and Care. — That ordinary 
 diligence is such diligence as men of common prudence usually 
 exercise about their own affairs; and ordinary care is such 
 care as an ordinarily prudent person usually takes of his own 
 goods. C. & A. Rd. Co. vs. Scott, 42 111., 132. 
 
 A connnon carrier of goods is not an insurer as to the time 
 at which the goods shall arrive at their destination but he is 
 bound t'j carry them to their destination in a reasonable time.
 
 CARRIERS OF GOODS. 97 
 
 after they are received. McLaren vs. Detroit & C. 12. Co., 
 23 Wis., 13S; Parsons vs. Hardy, 14 Wend., 215. 
 
 If delay is occasioned by an inevitable accident or an act of 
 God, and loss or damage results from such delay without any 
 fault on the part of the carrier, such loss or damage is not 
 chargeable to the carrier. Naslwille R. Go. vs. David, G 
 Heisk. (Tenn.), 261; R. R. Co. vs. Reeves,lO Wall. (U. S.), 17G; 
 Hoadley vs. N. T. Co., 115 Mass., 301:. 
 
 If a carrier is transporting property of a perishable nature 
 and a delay is occasioned by an inevitable accident or an act of 
 God, he must use all reasonable efforts to avoid all unnoces- 
 sary damage to the property either by forMMrding it to its 
 destination by other means of conveyance, or in some other 
 way. If he is unable to forward it to its destination by the 
 exercise of reasonable efforts in that behalf in time to avoid a 
 total loss, he is justified in selling the property for the best 
 price it will bring, exercising reasonable discretion in that 
 regard; but, whether, in this case, there was any unusual delay 
 in transporting the goods in question, and whether such delay, 
 if any, was caused by inevitable accident, and whether the 
 defendant did everything that could reasonably be done to 
 avoid damage to the goods, are all questions of fact to be 
 determined by the jury, from the evidence in the case. 
 Express Co. vs. Smith, 33 Ohio. St., 511. 
 
 § 19. Must Carry within a Reasonable Time. — The jury are 
 instructed, that when a railroad compain^ contracts to forward 
 and deliver goods at any particular ]ioint it is bound to for- 
 ward and deliver the goods at that point within a reasonable 
 time, and it will not be released from its liabilit}' by delivery 
 to another connecting road; but it will still be liable for any 
 'iitveasonable delay, although the same occurs on account of 
 ilio crowded condition of the connecting road, or for any other 
 cause attributable to such road. Penn. Rd. Co. vs. Benz, 68 
 Penn. St., 272; King vs. Macon, etc., Rd. Co., 60 Barb., 169; 
 Toledo, TF. & W. R. R. Co. vs. Lockhart, 71 111., 627. 
 
 § 20. Shipping Perishable Property. — If the jury believe, 
 from the evidence, that the fruit in question was injured and 
 damaged by being frozen after it was received by the defend- 
 
 ' 7
 
 9S CAEKIEKS OF GOODS. 
 
 ant, and while in transit to C, and that carriers in the same 
 line of business were at that time accustomed to use refriger- 
 ator cars for the purpose of protecting fruit from the effects 
 of the weather, and that such injury or damage could have 
 been prevented by the use of reasonable and ordinary care on 
 the part of the defendant, either by shipping the same in re- 
 frigerator cars or by another means generally known and rec- 
 ognized among railroad men as suitable and proper for the 
 purpose of protecting fruit from the effects of the weather, 
 then the damage was not produced by an act of God, within 
 the meaning of the law, and the defendant would be liable 
 therefor. 
 
 Tou are instructed, as a matter of law, that where a com- 
 mon carrier accepts fruits liable to be affected by the weather 
 for transportation over long distances, in the winter season, 
 the character of his employment, independently of any special 
 contract to that effect, clearly implies that he will ship them 
 in such vehicles or cars as are reasonably suitable for the pur- 
 pose, and exercise such care and diligence as may be reason- 
 ably necessar}'- for their safe passage to their destination. 
 Whether, in this case, such care and diligence were or were 
 not used by the defendant, and whether any loss resulted 
 therefrom, are questions to be determined by you in view of 
 all the evidence in the case. Merehaiiti Dispatch Trans. Co. 
 vs. Comforth, 3 Col, 280. 
 
 If you believe, from the evidence, that the defendant, by 
 the exercise of reasonable diligence in the loading and ship- 
 ment of the (oranges) mentioned in the bill of lading, could 
 have transmitted the same to their destination in a sound and 
 undamaged condition, and the jury further believe, from the 
 evidence, that said (oranges), or any part thereof, arrived at 
 their destination in a damaged and unsound condition by rea- 
 son of the want of reasonable care and diligence on the part 
 of the defendant and without any fault or neglect on the part 
 of the plaintiff then you should find the issues in favor of the 
 plaintiff. 
 
 The court instructs you as a matter of law that where goods 
 are damaged while in the hands of a common carrier through 
 the negligence of the carrier, if they are only damaged and are 
 not rendered wholly worthless the owmer is bound to receive
 
 CAERIEKS OF GOODS, 01) 
 
 them and ho cannot ahandon them and ])rocecd against the 
 carrier as for total loss, but in such case the owner has a right 
 of action against the carrier for the depreciation in the value 
 of the goods occasioned by such damage and negligence pro- 
 vided no fault or negligence on the part of the plaintiff has 
 contributed to such loss or damage. /S/iaiv vs. /S. C. Rij. Co., 
 5 Rich., 462. 
 
 The court instructs yon that tlie clause embodied in the bill 
 of lading offered in evidence providing that the defendant 
 should not be liable for any loss or injury to said fruit, which 
 might occur by reason of the weather, would not relieve tlie 
 defendant from any loss or damage from its negligence or want 
 of ordinary care in providing suitable cars for the transporta- 
 tion of such fruit. Whether the defendant was guilty of neg- 
 ligence or want of ordinary care in not furnishing suitable 
 cars for the transportation of such fruit, is a question to be 
 determined by you from a consideration of all the evidence in 
 the case. 
 
 § 21. Receipt Prima Facie Evidence of Goods in Good Order. — 
 That the receipt introduced in evidence is prima facie proof 
 that the goods therein mentioned were in good order at the 
 time they were received by the defendant, and so far as re- 
 gards that question, the burden of proof is on the defendant 
 to show, by a preponderance of evidence, that the goods were 
 in a damaged condition at the time they were received by the 
 defencmnt, or else that the injury occurred from a cause for 
 w'hich the defendant is not liable, as explained in these in- 
 structions; provided, the jury believe, from the evidence, that 
 the goods were damaged when delivered to the plaintiff, as 
 charged in the declaration. Montgomery, etc., lid. Co. vs. 
 Moore, 51 Ala., 394. 
 
 . The bill of lading, introduced in evidence in this case, is 
 prima facie evidence that the box of goods was received by 
 the defendants, and was at that time in good order; and if the 
 defendants claim that it was not so in good order, it is incum- 
 bent on them to show this, and that they were deceived or 
 defrauded when the bill of lading was signed; and unless you 
 believe, from the evidence, that the defendants were so deceived 
 or defrauded, you will find a verdict for the plaintiff for the
 
 100 CARKIEKS OF GOODS. 
 
 amount of his loss, as sliown by tlie evidence; provided tliat 
 you find, from the evidence, tliat the plaiutiff demanded said 
 goods before the commencement of this suit, and that the 
 goods were not deliveicd on demand, as charged in the plaint- 
 iflf's declaration; and further, that said loss did not occur from 
 {causes excepted in the receipt). G. W. JR. R. Co. vs. McDon- 
 ald, 18 111., 172; Ked on Car, etc., § 259, 21:7. 
 
 Tou are instructed that the bill of lading in this case shows, 
 prima facie, that the goods in question were in good order 
 and condition when they were received by the railroad com- 
 ])any; and if you believe, from the evidence, that the goods 
 were not in good order and condition — natural wear and tear 
 and ordinary deterioration excepted — when delivered to the 
 plaintiff, then to avoid liability for injury to the goods, de- 
 fendants must show, by a preponderance of evidence, that the 
 goods were not as described in the bill of lading at the time 
 they were delivered, or that they were injured by some fault 
 or negligence of the. plaintiff, or by {some cause within the 
 exemption clause of the receipt). 
 
 § 22. Bill of Lading Implies What — Contract. — The jury are 
 instructed that the bill of lading, offered in evidence, recites 
 that the goods were in good order and condition when received 
 by the defendant, and by s;iid bill of lading the defendant con- 
 tracted to deliver said goods in like good order and condition 
 at P.; and if the jury believe, from the evidence, that the 
 goods were not delivered in as good order and condition as 
 when received by defendant — oidinary wear and tear and or- 
 dinary deterioration excepted— and that the plaintiff was in- 
 jured and has sustained damage thereby, then the ])laintiff is 
 entitled to recover, unless the jury believe, from the evidence, 
 that the damage or injury to such goods resulted from some 
 fault or negligence of the plaintiff, or from, etc. Bissell vs. 
 Price, 16 111., 408; Wallace K. vs. Long, 10 111. App., 504; 
 /. C. R. R. Co. vs. Cohh, 72 111., 148; Warden vs. Green, 6 
 Watts, 424. 
 
 § 23. Bill of Lading Not Conclusive of Condition of the Goods. — 
 
 The court instructs the jury, that a bill of lading, while^'ma^ 
 facie true, may be explained by other evidence; and if the
 
 CAKKIEKS OF GOODS. 101 
 
 jury believe, from tlie evidence in this ease, that the goods in 
 question were wet or otlierwise injured, ur in bad condition, 
 before they came into defendant's hands, and that they were, 
 externall}^, in good condition when defendant received them, 
 and tliat tlie jierson receiving the goods could not, without 
 o|)ening them, have ascertained their actual condition, then, 
 the fact of receipting for them as in good order and condition 
 will not preclude the defendant from showing their true con- 
 dition in this suit. Blssell vs. Price^ 16 111., 408; Carson vs. 
 flarris, 4 G. Gr., 51(); Porter vs. C. db N. W. Pul. Co., 20 
 Lu, 73; Ellis vs. Williard, 5 Selden, 529; Meyer vs. Pec7i\ 
 28 K Y., 590. 
 
 § 24. Carrier Does Not Insure Condition of the Goods. — The 
 
 court instructs the jury, that while common carriers are in- 
 surers for the delivery of the goods received by them, they 
 are not insurers that the goods will reach their destination in 
 the same condition in which they were shipped. They are 
 not liable for loss arising from ordinary wear and tear or ordi- 
 nary deterioration in quantity or quality during the journey, 
 nor for loss arising from the fault or negligence of the shipper. 
 
 § 25. Carriers can only Restrict their Common Law Liabilities 
 by Special Contract. — The law is, that a common carrier is boimd 
 to receive and carry goods offered to him for transportation, 
 if in proper condition for shipping, subject to all the inci- 
 dents of his business as a common carrier, and there can be no 
 presumption that the shi]")per intended to abandon any of his 
 legal rights; and the burden of proving a conti-act, by which 
 his common law liability, as explained in these instructions, 
 has been restricted, is upon the carrier. Western T. Co. vs. 
 Reiohall, 24 111., 460; McCoy vs. The K. & D. M. R. Co., 
 44 la., 424; N. Y. C R. R. Co. vs. Lochwood, 17 Wall. (U. S.), 
 357. 
 
 § 26. Legal Duty of Carriers Imposed by Law. — That the right 
 conferred upon railroad corporations, in their charters, to car- 
 ry passengers and property for compensation, is coupled with 
 the duty that they shall receive and carry passengers and 
 freight on their roads as tliey may be offered, under the liabili-
 
 102 CAKitlEKS OF GOODS. 
 
 ties and responsibilities which the law imposes upon common 
 carriers, as explained in their instructions; and these liabili- 
 ties cannot be avoided except by a special agreement to that 
 effect. P. c& B. I. Ry. Co. vs. Coal Valley, etc., Co., 68 111., 
 489; Wallace vs. Matthews, 39 Ga., 617; Thayer vs. St. Louis, 
 etc., Rd. Co., 22 Ind., 26. 
 
 § 27. Exemption Clause in Receipt Not Binding. — That where 
 goods are received by a common carrier, and a receipt or a 
 bill of lading is given, containing a clause exempting the car- 
 rier from certain liabilities therein mentioned, such receipt is 
 not binding upon the shipper, unless it appears, by a prepon- 
 derance of the evidence, that he knew of and assented to the 
 exemption; and whether he did so assent is a question of fact 
 for the jury. Field vs. G. & R. I. Rd. Co., 71 111., 458; 
 Red. Car, etc., § 114; N. J. Steam N. Co. vs. Merchants 
 Bank, 6 How. (U. S.), 344; Sager vs. Ry. Co., 31 Me., 228; 
 Yerner vs. Sweitzer, 32 Penn St., 208. 
 
 Exemption Clause Binding if Agreed to. — The court instructs 
 the jur}^, that when a common carrier, receiving goods for 
 transportation, gives a receipt for the goods, containing pro- 
 visions limiting the common law liability of the carrier, other 
 than those arising from its own fault or negligence, and the 
 shipper accepts the receij^t with a full knowledge of its terms, 
 and intends to assent to sucli restrictions, it becomes his con- 
 tract as fully as if he had signed it. But the simple accept- 
 ance of such a receipt does not conclusively bind the shippei-; 
 in order to bind him, it must appear, from tlie evidence, that 
 he had knowledge or notice of the terms of the receipt and 
 assented to them. Adams Ex. vs. Ilaynes Co., 42 111., 89; 
 Gaines vs. U. T. & Q. Co., 28 Ohio St., 418; Grace vs. 
 Adcmis, 100 Mass., 50.5; Levering vs. U. Tras. Co., 42 Mo., 
 94; Rd. Co. vs. Mfg. Co. 16 Wal., 329. 
 
 § 28. Shipper will be Presumed to Agree to Exemption Clause, 
 AVlien. — The court instructs the jury, that when a ship])er de- 
 livers goods to a common carrier to be trans])orted by the car- 
 rier, and takes a receipt for the goods in the nature of a bill 
 of lading, specifying in the body of it, so as to form a part of
 
 CAEKIEKS OF GOODS. 103 
 
 tlie receipt, tbe terms iipou wliicli tliey arc to be carried and 
 delivered, the sliipper will be bound by the terms of the re- 
 ceipt, unless it ap])cars, by the evidence, that some fraud or 
 imposition was practiced upon the shij)per to induce him to 
 take such a reccijit. Edwd. on Bail., § 561; Long vs. JSf. Y. 
 Cent. Ed. Co., 50 K Y., 76; Grace vs. Ada?ns, 100 Mass., 505. 
 You are further instructed, that the receipt introduced in 
 evidence in this case contains a stipulation exempting the de- 
 fendant from all loss or injury to the goods arising from, etc.; 
 and if you believe, from the evidence, that the plaintiff ac- 
 cepted the receipt without objection, then he is bound by its 
 terms. The law presumes that he read it, or was otherwise 
 informed of its contents, and if he accepted it without objec- 
 tion, that he assented to the conditions prescribed in it — unless 
 you further believe, from the evidence, that some fraud or 
 ftoncealment, or improper practice, was used to induce him to 
 take it. 
 
 § 29. Burden on the Carrier to Show Loss within Exemption. — 
 
 Where goods are received by a common carrier, to be carried 
 under the usual bill of lading, containing a clause exempting 
 the carrier from certain liabilities, other than those arising 
 from his own fault or negligence, which are assented to by 
 the shipper, and the goods are lost or injured, it is incumbent 
 upon the carrier to show that the loss resulted from one of 
 the causes excepted in the receipt, as explained in these in- 
 structions, or fi'om an act of God, or the public enemies. 
 Western T. Co. vs. Neiohall, 24 111., 466: Mitchell vs. The 
 U. S. Ex. Co., 46 la., 214; U. 8. Ex. Co. vs. Graham, 26 Ohio 
 St., 595; Eed. Car., etc., § 267; Shaw vs. Gardner, 12 Gray, 
 488. 
 
 § 30. Liability not Limited by Notice. — The jury are in- 
 structed, that a common carrier cannot discharge itself from 
 the duty to safely carry and deliver goods intrusted to it for 
 transportation, by notice, public or private, of the terms on 
 which it receives or carries goods or projjcrty; to make such 
 notice effectual, the shipper must assent to its terms. Edwd. 
 on Bailments, § 560; iV". J. Steam Man. Co. vs. Merchants 
 Banli, 6 How. (U. S.), 344; McMillan vs. MicJiUjan, etc., lid.
 
 104 CAKKIEKS OF GOODS. 
 
 Co., 16 Mich., 79; Blossom vs. Dodd, 43 K T. 264; Yernej 
 vs. Sweitzei\ 32 Penn. St., 208. 
 
 The court instructs you, that the common law liability of 
 a common carrier, as explained in these instructions, cannot be 
 restricted by notice, even when sncli notice is brought home 
 to the knowledge of the shipper. In order to give a notice 
 this effect, it must appear, by a preponderance of the evidence, 
 that the shipper expressly assented to the terms of the notice, 
 and whether he did so assent, is a question of fact for tht 
 
 § 31. Must Exercise Reasonable Care to Prevent Loss within 
 Exemption. — Although the jury may believe, from the evi- 
 dence, that the goods in question were destroyed {by fire), still, 
 if the jury further believe, from the evidence, that by the 
 exercise of ordinary prudence on the part of the defendant, or 
 its servants, such destruction might have been jirevented, then 
 the defendant is liable in this suit. Penn. Rd. Co. vs. Fries., 
 87 Penn. St., 234. 
 
 § 32. Shipper Bound by Receipt, Wlien. — The court instructs 
 the jury, that if a shipper take a receipt for his goods from 
 a common carrier, which contains conditions limiting the lia- 
 bility of the carrier, with a full understanding of such condi- 
 tions, and intending to assent to them, it becomes his contract 
 as full as if he had signed it, and he will be bound by the con- 
 ditions; but if a shipper accept such a receipt, because he has 
 no alternative but to receive it, and not intending to assent to 
 the conditions limiting the liability of the carrier, then he 
 will not be bound by such conditions. The Anchor Line vs. 
 Dater, 68 111., 369. 
 
 § 33. Sliipper not Bound by Notice Printed on Receipt. — The 
 
 court instructs the jury, that the printed notice upon the (bach 
 of the) receij)t, of the terms and conditions upon which the 
 defendant received and carried the goods in question, is not 
 binding u]»on the ])laintiff, unless the jury find, from the evi- 
 dence, that liis attention was particularly called to that notice 
 when he took the receipt, and that he expressly apsciiled to 
 the terms and conditions therein contained. The fact alone
 
 CARKIKRS OF GOODS. 105 
 
 that the i)laintiflf accepted the receipt is no evidence that he 
 assented to the terms of said notice. E. da W. Tr. Co. vs. 
 Datei\ 91 111., 195. 
 
 § 34. Can Not Restrict Liability Arising from its Ovvn Negli- 
 gence. — The law, on grounds of public ]x>licj, will not pernait 
 a common carrier of passengers or freight, to contract against 
 liability for its own actual negligence, or tliat of its servants 
 and employes. TJ. M. S. Co. vs. Ind.., etc., lid. Co., 1 Disney 
 (Ohio), 4SU; Erie, etc., Ed. Co. vs. Wilcox, 84 III, 239; Ind., 
 etc., Rd. Co. vs. Allen, 31 Ind., 394; Penn. lid. Co. vs. 3fc- 
 Closkey, 23 Penn. St., 526; School Dis., etc., vs. Boston, etc., 
 Rd. Co., 102 Mass. 552. 
 
 The court instructs the jury, that although they may believe, 
 from the evidence, that there was a special contract between 
 the plaintiff and the defendant, that defendant should not be 
 liable for any loss or injury to said goods, which might occur 
 by reason of * * * still, such a contract would not relieve 
 the defendant from loss resulting from negligence, or the want 
 of ordinary care and prudence on the part of the defendant, 
 or its servants. 
 
 And in this case, if you believe, from the evidence, that the 
 defendant w^as guilty of negligence, or any want of ordinary 
 care and caution, and that the loss complained of resulted 
 therefrom, without any fault upon the part of the plaintiff, 
 then he has a right to recover in this case. 111. C. Rd. Co. 
 vs. Smyser et al., 38 111., 354; L. i& C. Rd. Co. vs. Brownlee, 
 14 Bush, 590. 
 
 You are instructed, that by the terms of the receipt intro- 
 duced in evidence in this case the defendant is not liable for 
 any loss or damage to the goods in question, arising from or 
 caused {hy fi)'e) while in the possession of defen 'ants as com- 
 mon carriers, unless such ijii'e), or loss or damage was occa- 
 sioned by some want of ordinary prudence or reasonable care 
 on the part of the defendant; and although you may believe, 
 from the evidence, that said goods were destroyed {by fire) 
 while in the possession of the defendants, still the defendant 
 is not liable therefor, unless you further believe, from the evi- 
 dence, that the said defendant, or its servants, by the exercise 
 of ordinary diligence or reasonable care, might have avoided 
 such loss.
 
 106 CAKKIEKS OF GOODS. 
 
 Yoli are instructed that a common carrier is liable for the 
 full value of goods, if they are lost through his negligence, 
 notwithstanding the bill of lading provides that the carrier 
 shall not be liable beyond an amount therein named, provided 
 it is understood by the parties when the bil4 of lading is given, 
 that the sum so agreed upon is less than the value of the goods. 
 Whether, in this case, the goods in question were lost through 
 the negligence of the defendant, and whether the goods \vere 
 worth more than the price mentioned in the bill of lading, and 
 whether this fact was known to the defendant when the bill 
 of lading was given, are all questions of fact to be determined 
 by you from the evidence in the case. U. S. Ex. Co. vs. 
 JBackman, 28 Ohio St., 144. 
 
 § 35. Burden of Proof. — If goods are lost or damaged while 
 in the custody of a common carrier, the presumption of law is 
 that such loss or damage was occasioned by its default or neg- 
 ligence, and the burden of proof is on the carrier to show tliat 
 it arose from causes for which the carrier was not respon- 
 sible. Nelson vs. Woodrxiff., 1 Black., 156; Lindsey vs. Chica- 
 go, M. (& St. F. R. Co., 33 N. W. Rep., 7.
 
 CHAPTER XL 
 
 CAEEIEKS OF LIVE STOCK. 
 
 Sec. 1. Duties and liabilities, 
 
 2. Care required of. 
 
 3. Injuries without carrier's fault. 
 
 4. Hogs — Care required of carrier. 
 
 5. Degree of care to avoid delay. 
 
 6. Suit by carrier for freight charges. 
 
 7. Carrier's lien, 
 
 § 1. Duties and Liabilities of. — It is the duty of a railroad 
 company which undertakes to carry live stock for hire, to ex- 
 ercise all reasonable care, skill and judgment to provide cars 
 of sufficient strength to prevent the animals from breaking 
 through the same; and it will be responsible for a loss if 
 it occurs through its failure to exercise such care, skill and 
 judgment, although the animals be unruly and vicious. Smith 
 V. ]\"'ew Haven, etc., Rd. Co., 12 Allen, 531; Great W. Rd. Co. 
 V. Haiokms, 18 Mich., 427; McDaniel v. C. (& JV. W. Rd. 
 Co., 24 la., 412; Peters v. iV". 0. (& C. R.R., 16 La. Ann., 
 222; 0., etc., R. R. Co. v. Pratt, 89 U. S., 123. 
 
 § 2. What Care Required of Carriers of Live Stock. — The 
 
 jury are instructed, that the carrier of live stock must exer- 
 cise all reasonable care, skill and judgment to provide safe and 
 pro|)erly constructed cars, in which to carry the stock — to 
 provide stations or stopping places along the I'oad, wliere 
 cattle may be fed; and if it fails to exercise such care, skill and 
 judgment, and loss or damage results therefrom, the carrier 
 will be liable to the owner for the damage thus sustained, if 
 he is himself free from fault or negligence contributing to 
 such injury. 
 
 A common carrier for hire is bound to exercise all the care 
 and diligence which prudent and cautious men, in the same 
 business, usually employ, for the safety and preservation of the 
 
 (107)
 
 108 CARRIERS OF LIVE STOCK. 
 
 property confided to its care; and, in this case, if you believe, 
 from the evidence, that the defendant did not use all such rea- 
 sonable care and prudence to pi-ovide a safe and suitable car 
 for plaintiff's stock, or in the running and manag nicnt of the 
 train in question, and that, by reason of such want of cai-e 
 and diligence, plaintiff's stock was injured, as charged in the 
 declaration, then the defendant is liable for the resulting 
 damage to the amount proved by the evidence. Rhodes vs. 
 Louisville, eto.^ Rd. Co., 9 Bush, 6SS. 
 
 If a common carrier receives live stock to be transported 
 from one point to another, then he is bound to carry it safely 
 to the point of destination, and there have it ready to deliver 
 to the consignee and nothing will excuse such readiness to 
 deliver excei^t what are known as acts of God or the public 
 enemy, or such accidents as arise from the conduct, vicious 
 temjier or propensities of the animals themselves. Maynard, 
 vs. S., etc., Rd. Co., 71 K Y. ISO; Banlerg vs. J. C.Rd. Co., 
 9 S. C, 61; McCoy vs. R. & 1). M. Rd. Co., 44 la., 424; 6. 
 & Ala.Rd. Co.YS. Benlien, 52 Ala., 106; Angell Car., § 214. 
 
 § 3. Injuries without Carrier's Fault. — If the jury believe, 
 from the evidence, that the defendant furnished a suitable car 
 in whicli to shin the stock in question, and used all due care 
 in managing and transporting the same, and that the injur}' 
 complained of was caused by the [peculiar cliaracter of the 
 animals themselves, such as bad temper, unusual restiveness 
 or viciousness, then the defendant is not liable in this case. 
 Smith vs. iV". II., etc., Rd. Co., 12 Allen, 531; Evans vs. 
 Fltchhiirg, etc., Rd. Co., Ill Mass., 142. 
 
 You are instructed, that although they may believe, from 
 the evidence, that the car in which plaintiff's stock was shipped 
 was defective, in not having, etc., still, if you furtlier believe, 
 from the evidence, that such defect in no manner contributed 
 to the injury complained of, then the defendant should not be 
 held liable in this case by reason of such defect in said cai'. 
 
 If you believe, from the evidence, that the car in which the 
 stock was shipjied was then in a fafe and suitable condition 
 and was managed in a careful and prudent manner, and that 
 the injuries complained of were not caused by the carelessness 
 or bad management of those luiving charge of the train, then 
 you should find the defendant not guilty.
 
 CARRIERS OF LIVE STOCK. K 9 
 
 § 4. Cfire Required of Carriers of Hogs. — That wlien lioi^^s ;ue 
 shipi'od in railroad cars at a season of the year when, foi- tlieir 
 ])roi)er care and treatment, it is necessary to apply water to 
 prevent thetn from being suffocated or overheated, then it is 
 the duty of the i-ailroad comi)any to have proper stations and 
 apph'ances for furnishing such water, and to so run and manage 
 its trains as to afford reasonable opportunities to the persons 
 in charge of tlie stock to apply such water, and if it does not 
 exercise such care, skill and judgment, and loss or damage to 
 the stock results therefrom, the carrier will be liable to the 
 owner for the damage thus sustained; provided, lie is himself 
 free from fault or negligence contributing to such injury. 
 Edwd. on Bail., § CS2; Toledo^ etc., Rd. Go. vs. Thompson, 
 •71 III, 434. 
 
 § 5. Degree of Care Required to Avoid Delay. — The jury are 
 instructed, that the carrier of live stock for pay must exercise 
 reasonable diligence in the business, and complete the journey 
 within a reasonable time, and if ho does not do so, and the 
 stock is injured by the delay, tlie cari-ier will be liable to the 
 owner for all damage caused by such delay. Edwd. on Bail., 
 § 680; Tucker \&. Pacific lid. Co., 50 Mo., 385; Sisson vs. 
 Cleveland, 14 Mich., 489. 
 
 If you believe, from the evidence, that some time, on or 
 about, etc., the plaintiff shipped on board the defendant's cars 
 tlie (livestock) to be transported from O. to C, and that there 
 was no special contract between the parties in relation to the 
 time of starting the train or of its aiTival at C, then it was the 
 duty of the defendant to start the train and to make the jour- 
 ney within a reasonable time after so receiving the stock; and 
 if you further believe, from the evidence, that the cars con- 
 taining said stock did not arrive at C. within a reasonable time 
 after the stock was placed on the cars, and that, by reason of 
 such delay, the animals were unnecessarily reduced in weight, 
 or otherwise de|)reciated in value, and the ])laintiff thereby 
 damaged, then the defendant is liable for such damage in this 
 suit. 
 
 § 6. Suit by Carrier for Freight and Charges. — If the jury 
 believe, from the evidence, that at the time in question
 
 110 CAEKIEES OF LIVE STOCK. 
 
 the plaintiff was a common cai'rier, and in tlie ordinary course 
 of business received the goods in question, in the proper line 
 of transit, and paid freight and charges thereon to preceding 
 carriers or warehousemen, then the plaintiff is entitled to 
 reasonable charges for the transportation of said goods, besides 
 the amount so ])aid to others, althougli the jury may believe, 
 from the evidence, that said goods were damaged before they 
 reached the plaintiff, w^hile in the hands of some prioi* carrier; 
 provided the jury further believe, from the evidence, that said 
 goods were not injured after coming to the hands of plaintiff. 
 Bissell vs. Price, 16 111., 408; C. <& m W. Ed. Co. vs. iT. W. 
 U. F. Co., 38 la., 37T; Eed. Car., § 282. 
 
 § 7. Carrier's Lien. — The jury are instructed, that a com- 
 mon carrier has no lien upon, or right to detain, goods or mer- 
 cliandise shipped from one place, or at one time, for charges on 
 other goods shipped at another place, or anotlier time, unless 
 there is some contract to that effect expressed or implied 
 between the parties (except on proof of general usage, etc.). 
 Edwd. on Bail., § 645; Red. Car., § 279. 
 
 If 3"ou believe, from the evidence, that the plaintiff, before 
 the commencement of this suit by himself or his agent, 
 demanded the property in question of the defendant, and that 
 the defendant then refused to deliver the property, but did not 
 claim, at the time of refusal to retain it for the charges there- 
 on, then he is now estopped from setting up that claim as a 
 reason for not delivering the property on demand. 
 [!See Replevin and Trover.']
 
 CHAPTER XII. 
 CAEPJERS OF PASSENGERS AND BAGGAGE. 
 
 \See Neg ligence — Railfoad.] 
 
 Sec. 1. Common carrier defined. 
 
 2. Injury, jyriuta facie evidence of negligence. 
 
 8. Decree of care required of carrier of passengers. 
 
 4. Decree of care required of the passenger. 
 
 5. Jumping from the cars, not negligence, when. 
 
 6. Jumping from the cars, negligence, when. 
 
 7. Carrier not an insurer against accidents, when. 
 
 8. Pa!=senger takes all the risks necessarily incident to the mode of 
 
 travel. 
 
 9. Jjiability for baggage. 
 
 10. Trunk containing articles of special value, carrier should be noti- 
 
 fied. 
 
 11. Baggage, carrier's liability terminates, when. 
 
 § 1. Common Currier Defined. — If tlie jnry believe, from the 
 evidence, that the defendant corporation was engaged in tlie 
 business of transporting passengers and freight, for hire, upon 
 a railroad operated by said company, then the law denomi- 
 nates the defendant a common carrier. 
 
 § 2. Injury Prima Facie Evidence of Negligence.— If the jury 
 believe, from the evidence, that the plaintiff received an injury 
 while riding on the cars of the defendant, by reason of a col- 
 lision of said cars with other cars, and while he was himself 
 using all reasonable care and caution to avoid injury, as charged 
 in the declaration, then these facts will make o, prima facie 
 case of negligence agaimst the defendant; and the burden of 
 proof will be on the defendant to show that it, by its agents 
 and servants, did use all reasonably practicable care and pre- 
 caution to prevent such injury. Sliear. & Red. on Neg., 
 § 268; Edwd. on Bail., § 711; Cooley on Torts, 663. 
 
 If you believe, from the evidence, that the plaintiff was a 
 passenger on board the cars of the defendant, in the month of 
 
 (111)
 
 112 CAKKIERS OF PASSENGERS AND BAGGAGE, 
 
 last, and that those cars came in collision with another 
 
 train of cars, by and through the negh'gence of the defendant's 
 agents or servants, as charged in the declaration, aiid that hj 
 reason of such negligence the plaintiff was injured and sustained 
 damage, and also that he was himself using all reasonable care 
 and caution to avoid such injury, then you should tind a ver- 
 dict for the plaintiff, and assess his damages. C, B. & Q. 11. 
 R. vs. Georije, 19 111., 510. 
 
 If you believe, from the evidence, that the ])laintiff was a 
 passenger on board the defendant's cars, and was injured by 
 means of an accident occurring on the railroad of the defend- 
 ant, while the plaintiff was exercising all reasonable care and 
 caution to avoid the injury, as charged in the declaration, then 
 the burden of showing tliat such accident was not the result of 
 the negligence or lack of skill of the defendant, or its agents, 
 is cast upon the defendant. Sullivan vs. Philadelphia^ etc., 
 Rd. Co., 30 Penn. St., 231; Meier vs. Penn. Rd. Co., 61 
 Penn. St., 22.5; Boyce vs. Cal. Stage Co., 25 Cal., 400. 
 
 If you believe, from the evidence, that the plaintiff' was 
 injured by the overturning of the car in wliich he was a pas- 
 senger (or b}' a collision of the cars, etc.), and was thereby 
 injured, without any fault upon liis part, he thereb}' makes 
 out 2i prima facie c^id of negligence against the comi any, and 
 places upon it the burden of proving, by a preponderance of 
 evidence, that the accident resulted from a cause which could 
 not have been foreseen or prevented by the exerciire of all 
 reasonable care, vigilance and foresight on behalf of the com- 
 pany. P. C. <& H. L. R. R. Co. vs. Thompson, 56 II!., ISS; 
 Lemon vs. Chanslor, 68 Mo., 340; Ped. on Car., etc., § 531. 
 
 The court instructs you that where a railway car is thrown 
 from the track, and the passenger for hire is thereby injured, 
 the presumption is that the accident resulted either from the 
 fact that the track was out of order, or the train badly managed, 
 or both combined, and the onus is on the company to show, 
 i)y a ])i-eponderance of the evidence, that it was not negli- 
 gent in any of these respects. P. P. <& J. R. R. Co. vs. 
 Reynolds, 88 111., 418; Fairchildy^. Cal. Stage Co., 13 Cal., 
 599. 
 
 If you believe, from the evidence, that at the time in ques- 
 tion the plaintiff was a passenger on board of defendant's cars
 
 CARKIERS OF I'ASSENGEES AND BAGGAGE. 110 
 
 and tliat lie I'cceivcd an injury, as alleo-ed in tlie declaration, 
 and that he was himself, at the time, exercisinj^ all reasonable 
 care and caution to avoid the injury; and if yon further be- 
 lieve, from the evidence, that the accident and injury com- 
 plained of happened by reason of the negligent and unpkillfnl 
 construction of the track of defendant's railroad, or from the 
 want of reasonable care and attention in keeping the track in 
 repair, or in the management or control of the train on which 
 the i^laintiff was a passenger, then you should find a verdicc 
 for the plaintiff. 
 
 § 3. Degree of Care required of the Carrier of Passengers. — The 
 
 court instructs the jury, that common carriers of persons are 
 required to do all that human care, vigilance and foresight 
 can reasonably do, in view of the character and mode of con- 
 veyance adopted, to prevent accidents to passengers. 
 
 " 1. The court instructs the jury, that if they believe, from 
 all the evidence in this case, that on or about the 16th day of 
 February, 1880, the defendant was controlling and oi)crating 
 a train of cars on a railroad in this county, and that the defend- 
 ant received the plaintiff on its cars as a passenger, for hire, 
 then the cpurt instructs the jury that the defendant was bound 
 to make up its train, couple its cars, and manage and control 
 its cars and engines in such a careful, skillful and prudent 
 manner as to carry the plaintiff with reasonable safety as such 
 passenger. II. & St. J. E. R. Co. vs. Martin, 111 111., 219. 
 
 The utmost degree of care which the human mind is capable 
 of inventing is not required, but the highest degree of care 
 and diligence which is reasonably practicable, under the cir- 
 cumstances of the case, is required. Tidier vs. Talbot. 23 111., 
 357; Shear. & Red. on Neg., § 266; Edwd. on Bail., § 710; 
 Cooley on Torts, § 644; Edumrds vs. Lord, 49 Me., 279; 
 Sales vs. W. Stage Co., 4 la., 547; FaircMld vs. Cal. Stage 
 Co., 13 Cal., 599; Eed. Car., § 340; Taylor vs. Daij, 16 Vt., 
 566. 
 
 Carriers of passengers by railroad are bound to use all rea- 
 sonably practicable precautions, as far as human foresight will 
 go, for the safety of their ]3assengers; and they are answer- 
 able to injured passengers for slight neglect of themselves or 
 agents, in respect to the condition of the track, and conduct
 
 114 CAERJEES OF PASSEKGEUS AND BAGGAGE. 
 
 and jiianagQinent of their trains, if injury ensues therefrom, 
 and the passengers themselves are without fault. G. & C. U. 
 Ed. Co. vs. Yarwood, 17 111., 509; Fuller vs. iV^. Ed. Co., 21 
 Conn., 557. 
 
 You are instructed, that the law imposes upon common car- 
 riers of passengers the duty of providing for their safe con- 
 veyance, as far as human care and foresight can reasonably 
 secure that result; and the passenger takes no risks, except 
 such as are necessarily incident to the particular mode of con- 
 vej'ance or travel, while the carrier is using the utmost care 
 and diligence that is reasonably practicable. Hollsy vs. B. G. 
 Co., 8 Gray, 131. 
 
 The court instructs you, as a matter of law, that if there is 
 the least failure by a common carrier of passengers to exer- 
 cise all the care and diligence that is reasonably ]:>racticable, in 
 keeping its vehicles and appliances in safe condition, then the 
 duty of the carrier is not fullilled, and it is answerable for any 
 injury or damage of which such neglect is the proximate 
 cause; provided, the jierson injured is himself using reason- 
 able care and caution to avoid such injury, Bi'igys vs. Tay- 
 lor, 28 Vt., 180. 
 
 You are instructed, that it is the duty of a railway company 
 employed in ti'ansporting passengers, to do all that liuman 
 care, vigilance and fore^sight can reasonably do, consistent with 
 the mode of conveyance and the practical operation of the 
 road, in providing safe coaches, machinery, tracks and roadway, 
 for the safety of the passengers, and to keep the same in good 
 repair; and if, from the evidence in this case, you believe that 
 tlie plaintiff, while a passenger on tlie cars of defendant, re- 
 ceived an injury resulting from the negligence of the defend- 
 ant, or its servants, in either of the above particulars, you will 
 tind for the plalntilf ; provided, you further believe, from the 
 evidence, that the ])laintifi:'s own negligence did not contribute 
 to such injury. 
 
 The court instructs you, that the omission of any reasonably 
 practicable precaution which would tend to insure the safety 
 of the passenger, or lessen the danger to him, constitutes such 
 a neglect in the carriers of passengers as will make them 
 answerable in damages to a passenger injured by reason of such 
 neglect, if the passenger is himself free from fault.
 
 CARKIEUS OF PASSENGERS AND i:AGGAGE. 115 
 
 § 4. Degree of Care Required of the Passenger. — Tlic court 
 instructs the jury, that a passenger on a ])ub]ic conveyance, in 
 charge of a coinuion carrier, is only required to exercise such 
 care and foresight as is usual, under similar circumstances, with 
 careful persons possessing ordinary intelligence. 
 
 § 5. Jumping from the Cars Not Negligence, When. — The 
 court instructs the jury, that the fact, if proved, that the 
 plaintiff jumj^ed from the cars to the ground, while said cars 
 were in motion, and thus sustained the injury complained of, 
 will not alone deprive him of his right to a recovery against 
 defendant, if the jury further believe, from the evidence, that 
 an accident had occurred to the train, which resulted from 
 any want of reasonable care and caution on the part of the de- 
 fendant, and that the plaintiff had reasonable ground to be- 
 lieve, and did believe, that his life or limb was in danger, and 
 that it was necessary to leap fi-om the cars in order to avoid 
 the danger which threatened him. The question is not so 
 much whether there was, in point of fact, any danger in 
 remaining on the cars, as whether the plaintiff reasonably ap- 
 prehended danger, and so leaped from the cars to escape it. 
 Ewd. on Bail., § 719; Shearm. & Eed. on Neg., § 282; Buell 
 vs. JSr. Y. Cent. R. R. Co., 31 K Y., 314; Gcdena & C Rd. 
 Co. vs. Tarioood, 17 111., 509; Ked. Gar., § 382; S. W. Rd. Co. 
 vs. Panll\ 24 Ga., 356; Jngalls vs. Bills, 9 Met., 1; Ry. Co. 
 vs. Aspell, 23 Penn St., 147. 
 
 Although you may believe, from the evidence, that the 
 plaintiff lea;>ed from the cars while they were in motion at 
 the time of the alK god injury, and tliereb}'^ caused the injury 
 complained of, and that if he had remained on the car he 
 wouM not have been injured, still this would not relieve the 
 company from liability, provided you further believe, from the 
 evidence, that the plaintiff had reasonable grounds to believe, 
 Hud did believe, that his life or limb was in danger, and that 
 it was necessary to leap from the cars in order to avoid the 
 danger, and furtlier, that this apparent danger was brought 
 about by any negligence or want of reasonable care and fore- 
 sight on the part of the defendant. 
 
 § 6. Jumping from the Cars Negligence, When. — If the jury 
 believe, from the evidence, that the plaintiff' leaped from the
 
 116 CAEEIEKS OF i'ASSENGEKS AND BAGGAGE. 
 
 cars, at tlie time of the injury, under circumstances tliat would 
 not have justitied suci an act on the part of an ordinarily 
 careful and prudent man, and that the injury was caused by 
 such jumping, and that if he had remained on the car no 
 injury would have happened, then the plaintiff cannot recover 
 in this suit. Red. Car., § 83; Lucas vs. Taunton^ etc., lid. 
 Co., 6 Gray, 64: j Damoiit vs. N. 0. etc.^ Bd. Co.^ 9 La. Ann., 
 411. 
 
 § 1. Carrier not an Insurer against Accilents. — That while 
 the defendant was bound to do all that human care, vigilance 
 and foresight could reasonably do, consistent with the practical 
 operation of the road, in order to prevent injuries to its pas- 
 sengers, still the com.pany do not insure tlie absolute safety of 
 its ])assengers; and, in this case, if the jury believe from the 
 evidence that the injury complained of was occasioned by an 
 internal or hidden defect in the * * * M^hich a 
 thorough and careful examination would not disclose, and 
 which could not be guarded against by the exercise of a sound 
 judgment and the most vigilant oversight and care, then the 
 defendant is not liable for the injury so occasioned. P., C. & 
 E. L. R. E. Co. vs. Thompson, 56 111., 138; Eed. Car., § 310 ; 
 Ingalls vs. Biels, 9 Met. 1; Ladd vs. Ifew B. Bd. Co., 119 
 Mass., 412; Taylor vs. G^ T B. D. Co., 48 IS". H., 304; 
 McPadden vs. iV^. C Bd. Co., 44 ^. Y., 278; Sherlock vs. 
 AH i?ig, 4:4: Ind., 184; Grand B. & Ind. Bd. Co. vs. Boyd, 65 
 Ind., 526. 
 
 Tf you believe, from the evidence, that the injury to the 
 plaintiff in this suit happened to him by mere accident, with- 
 out any fault on the part of the defendant, or its employes, 
 then the ])laintiff cannot recover in this action. 
 
 If you believe, from the evidence, that the defendant exer- 
 cised all reasonably practicable care, diligence and skill, in the 
 consti'uction, preservation and repairs of its track, and in man- 
 aging and operating its road, at the tiine of the accident, and 
 that the accident could not have been prevented by the use of 
 the utmost practicable care, diligence and skill, then the plaint- 
 iff cannot recover in this action. 
 
 The court instructs you, that while connnon carriers of pas- 
 sengers are held to the very liighest degree of care and pru-
 
 CARRIERS OF PASSENGERS AND BAGGAGE. 117 
 
 dence wliicli is consistent with the jn-actical operation of tlicir 
 vehicles and the transaction of their business, still they are nut 
 absolute insurers of the personal safety of their passengers. 
 
 And, in this case, though you may believe, from the evi- 
 dence, that the plaintiii was injured while a passenger on de- 
 fendant's cars, still, if you further believe, from the evidence, 
 that the defendant and its servants were not guilty of any neg- 
 ligence which contributed to such injury, tlien the defendant 
 is not liable in this action. G. (& C. TJnion li. IL Co. vs. 
 Yarwood^ 15 111., 4GS. 
 
 § 8. The Passenger Takes all the Risks Necessarilj'' Incident to 
 the Mode of Convejance. — The jury are instructed, that plaintiff, 
 as a passenger on the defendant's car, as a matter of law, is 
 presumed to have taken upon himself all the risks necessarily 
 incident to that uiode of traveling ; and if the jury believe, 
 from the evidence, that without tlie fault of the defendant, but 
 by inevitable accident, plaintiff was injured, the jury should 
 iind for the defendant. 
 
 The court instructs you, as a matter of law, that a passen- 
 ger upon a railroad train takes all the risks attending that 
 mode of travel, except such as are caused or increased by the 
 negligence of tlie railroad company, or its servants. Grand 
 R. & Ind. Ed. Co. vs. Boyd, 65 lud., 526. 
 
 § 9. Liability for Baggage. — The jury are instructed, that a 
 common carrier of passengers, by receiving the baggage of a 
 traveler who has engaged his passage, becomes immediately 
 responsible for its safe delivery at the place of destination, and 
 nothing but the act of God or the public enemies will excuse 
 a non-delivery. 
 
 The court instructs you that the term baggage includes a 
 reasonable amount of money in a trunk, intended for traveling 
 expenses, and such articles of necessity and convenience as are 
 usually carried by passengers for their personal use, instruc- 
 tion, amusement or protection. Weeks vs. N'. Y., etc., R. R. 
 Co., 16 K Y. Sup. Ct., 669 ; Ilutchings vs. Western, etc., R. 
 R. Co., 25 Ga., 63; Dexter vs. Syracuse, etc., Rd. Co., 42 N. 
 Y., 326; Parmlee vs. Fischer, 22 111., 212; Porter vq. Eilde- 
 hrand, 11 Penu, St., 129; Hannibal, etc., Rd. Co. vs. Swift,
 
 118 CAERIEKS OF PASSENGERS AND BAGGAGE. 
 
 12 Wallace, 2G2; Gleason vs. Goodrich T. Co., 32 Wis., 85; 
 Toledo^ etc. J vs. Ilaminoiid, 23 Ind. 379. 
 
 The court instructs you, that the term bnggage does not 
 extend to money, merchandise, or other valuables which are 
 designed for purposes of business, and not lor the traveling 
 expenses, personal use, comfort, instruction, amusement or 
 protection of the passenger. Woods vs. Deoine, 13 III, 746. 
 
 You are instructed, that while the implied undertaking of 
 a common carrier to insure the safe delivery of bacffiiire as 
 against everything but the act of God, and the public 
 enemies, does not extend to the contents of a trunk consisting 
 of merchandise, money or other valuables, whicli are designed 
 for the purposes of trade or business; still the common carrier, 
 if he takes charge of such property for the purpose of trans- 
 porting, assumes the relation to it of an ordinary bailee, and 
 is bound to take such care of it, as men of ordinary care and 
 prudence would usually take of their own property under the 
 same circumstances. Peim. Co. vs. Miller, 35 Ohio St., 511. 
 
 § 10. If a Trunk Contains Articles of Special A^alue, Carrier 
 Should be Notified. — -The court instructs the jury, that a traveler 
 who presents to a carrier of passengers, a trunk or valise, such 
 as is commonly used for the transportation of wearing apparel, 
 represents by implication, that it cont lins only such articles 
 as are necessary for his comfort and convenience on the jour- 
 ney, and if it, in fact, contains merchandise, jewelry or other 
 valuables, and the fact is not mentioned, the traveler is guilty 
 of such a legal fraud as to absolve the carrier from the 
 extraordinary liability of insurer. Red. Car., etc., § 77 ; 
 Smith et al. vs. B. & M. Ry. Co., 11 N. II., 325 ; Magnin 
 vs. Dinsinore, 62 N, Y., 35. 
 
 The court instructs you, that a carrier of passengers is not 
 bound to inquire as to tlie contents of a trunk, delivered to it 
 as ordinary baggage, such as tiavelers usually carry, even if 
 the same is of considerable weight, but the carrier may rely 
 upon the representation, arising by implication, that it con- 
 tains nothing more than baggage. 
 
 The court instructs you, that where a person, under the 
 pretense of having baggage transported, places in the hands of 
 the agents of a railroad company, merchandise, jewehy and
 
 CAERIEKS OF PASSENGERS AND BAGGAGE. 119 
 
 Other vahiables, without notifying them of its character and 
 value, ho practices a fi-aiid upon the company, which will pre- 
 vent his ]-ecovery in case of loss, excei)t it occurs through 
 gross negligence of the company. Edwd. on Bail., § 529 ; 
 Mich. Cent. E. R. Co. vs. Carrow, 73 111., 348 ; WhUmore 
 vs. Steamboat, etc., 20 Mo., 513; Doyle vs. Klser, 6 Ind., 242- 
 
 § 11. Baggage — Liability of Carrier for Terminates, Wlien. — 
 
 The court instructs the jury, that tlu responsibility of a rail- 
 road company, as a common carrier, for the baggage of a 
 ]iassenger, terminates on the expiration of a reasonable time 
 for the passenger to come or send for the baggage, after the 
 arrival of the train at the passenger's place of destination. 
 After such reasonable time, the company may store the baggage 
 in its warehouse, and it will then hold it as a warehouseman 
 only. Chicago, etc., B. M., Co. vs. Boyce, 73 111., 510; Mote 
 vs. Chicago, etc., Rd. Co., 27 la., 22; Louisville, etc., Rd. Co. 
 vs. Mahn, 8 Bust., 184; Ross vs. Mo. Rd. Co., 4 Mo. App., 
 582; Angell on Car., § 114, 320.
 
 CHAPTEH XIII. 
 COMMISSION MERCHANTS. 
 
 [See Agenci/.] 
 
 Sec. 1. Commission men are agents. 
 
 2. Good faith required. 
 
 3. Degree of care required. 
 
 4. May conform to the rules of the market. 
 
 5. Must conform to rules and usages. 
 
 6. Margins. 
 
 7. Factor's liens. 
 
 8. Right to sell without permission. 
 
 9. May not sell, when. 
 
 10. Selling without orders — Damages must be shown. 
 
 11. Account stated. 
 
 12. Presumed to conform to custom and usage. 
 18. Eeal estate brokers. 
 
 BOARD OF TKADE CONTKACTS. 
 
 14. Contracts— Illegal. 
 
 15. Contracts — Legal. 
 
 § 1. Commission Men are Agents. — The Jury are instructed, 
 that commission merchants, who accept consignments of grain 
 from country shippers, and undertake to dispose of the same 
 for such shippers, and for a commission to be paid therefor, 
 are regarded as the agents for such shippers. Slack vs. 
 Tucker, %^ WalL (U. S.), 321; Edgerton vs. Michels, &Q 
 Wis., 124. 
 
 § 2. Good Faith Required. — The jury are instructed that 
 the law requires a factor or agent to exercise the utmost good 
 faith towards his principal; and he has no right to realize a 
 profit out of the property or fund of his princi]ial, intrusted 
 to his care by any concealed management of such property, or 
 b}' any violations of his instructions; and any such profit that 
 may arise in the management of his principal's property 
 belongs to the princij^al. Baljeoek vs. Ohison, 25 Ind., 75. 
 
 (120)
 
 COMMISSION MERCHANTS. 121 
 
 You arc fiirtlior instructed that an agent must not, in the 
 management of his prineijml's pro])erty, ])]ace himself in a 
 positit)n which is adverse to that of his principal ; and he is 
 not permitted to avail himself of any advantage his position 
 may give him to speculate off his principal, but all the profits 
 or advantages gained in the transaction belong to the prin- 
 cipal. 
 
 § 3. Degree of Care Required. — The Jury are instructed, that 
 the law holds a consignee, in the conduct of the business of 
 the consignor, to the same degree of care and diligence which 
 a prudent man would exercise in the management of his own 
 business. Story on Cont., § 361; Phillips \%.Moir^ 69 111. 155. 
 
 The jury are instructed, that when a shipper sends grain to 
 a commission man to be sold by the latter, and no instructions 
 are given as to the price to be obtained, or the time of sale, 
 then the commission man .may sell in his discretion, being 
 responsible for good faith and the exercise of that degree of 
 care, discretion and skill which is ordinarily possessed and used 
 by persons engaged in the same business. Cotton vs. Hlller^ 
 52 Miss., 7; Field vs. Farrington, 10 Wall. (U. S.), 141; 
 Rausell vs. Thrall^ 18 Neb., 484; Parlddll vs. Inday, 15 
 Wend., 431. 
 
 § 4. May Conform to Rules of the Market. — The court instructs 
 the jury, that a factor or commission man, while he cannot be 
 held as a guarantor of the I'esponsibility of persons to whom 
 he sells in the ordinary course of business, and in accordance 
 with the usages of the market where the sale takes place, must 
 nevertheless use all reasonable efforts, and resort to all reason- 
 ably available sources of information to learn the pecuniary 
 liability of the purchaser, and if he does not do so, and any 
 loss occurs by reason thereof, he will be liable for such loss. 
 Foster vs. Waller, 75 111., 464. 
 
 You are instructed, as a matter of law, that if there be a 
 custom or usage of long standing, and generally known at the 
 place to which property is consigned for sale, controlling the 
 time within which payments may be made upon what are 
 known as cash sales, then the consignor will be bound by the 
 custom or usage, whether he in fact knows of the usage or not.
 
 122 COMltflSSION MEECHANTS. 
 
 If you believe, from the evidence, that the defendant sold 
 the grain in question for cash on delivery, without giving any 
 credit to the purchaser, then it was his duty to obtain the pay 
 for the grain before he allowed it to go beyond his control, 
 unless you further believe, from the evidence, that there is a 
 custom or usage of long standing, uniform and generally 
 known among commission men doing business on the board of 
 trade, in {Chicago), tliat a sale for cash means a credit until 
 the next dny, and that the defendant sold the grain in question 
 with reference to such custom. Story on Cont., § 354; Deshler 
 vs. Beers, 32 III, 368. 
 
 If you believe, from the evidence, that during the time 
 covering the matters in controversy in this suit, the plaintiffs 
 were doing business as commission men on the board of trade, 
 in {Chicago), and that the defendant was accustomed to sliij) 
 grain to them, to be sold and disposed of by them, in the way 
 of their business, he is conclusively presumed to have intended 
 that the plaintiffs should transact such business accordinir to 
 the known, general and uniform rules and usages established 
 for conducting such business at that place, if the evidence 
 shows that there were any such rules and usages; and that 
 whether the defendant knew of such rules and usages or not 
 is immaterial; unless it be shown, by a preponderance of the 
 GNddence, that there was some special contract between the 
 parties to the contrary. Cothran v. jElliss, 107 111., 413. 
 
 If you believe, from the evidence, that, during the time in 
 question, the defendant was accustomed, from time to time, 
 to send grain to the plaintiffs, to be sold by them as com- 
 mission men, doing business on the board of trade, in {Chi- 
 cago), and that by the long established, uniform, and gen- 
 eral custom and usage of that business at that point, the grain 
 so shipped was placed in elevators and mixed with other 
 grain of the same kind and grade, and a receipt or certificate 
 issued by the warehousemen to the consignee, entitling him 
 to the amount of grain of the kind and grade specified in the 
 receipts; and if you further believe, from the evidence, that 
 it was in accordance with tlie same usage or custom for the 
 consignees to use such certificates in making sales of grain, in 
 the way of their general business, without regard to the ])ar- 
 ticular grain upon which the certificates were issued, then the
 
 COMMISSION MEKCHANTS. 123 
 
 plaintiffs would be justilied in so using the receipts received 
 by them iii)on receipt of defendant's grain, and the transfer 
 of such receipts, in connection with grain sold by them, would 
 not of itself be evidence of a sale of grain on account of de- 
 fendant, nor of a sale of his gi'ain. 
 
 If you believe, from the evidence in this case, that at tlie 
 time covering the transactions in question, it was the estab- 
 lished, general and uniform usage and custom for connnission 
 men doing business on the board of trade, in {Chica(jo\ to use 
 and transfer the receipts in their hands, for grain de|)Osited in 
 the elevators in that city, whenever a sale was made by them, 
 without regard to the ])articular person upon whose shipments 
 such receipts were issued, tlien the transfer of such receipts 
 would not alone be evidence of the sale, or intended sale, of 
 the grain of the person upon whose shipments the receipts 
 were issued. 
 
 § 5. Must Conform to Rules and Usages. — The court instructs 
 the jury, that when a pirincipal employs a commission man 
 to buy (or sell) grain on the board of trade in {^Chicago), the 
 commission man is not only bound to conduct the transaction 
 with all such reasonable and ordinary care and judgment as is 
 usually exercised by persons engaged in the same business, but 
 he is also required, in the transaction of the business intrusted 
 to him, to conform to all the known, uniform, general and 
 established rules and usages existing in that market, if any 
 such are shown to exist by the evidence; and if he fails to do 
 so, and any loss results therefrom, he will have to bear the 
 loss. Howe V. Suthei'lcmd, 39 la., 4Si. 
 
 § 6. Margins.^ — If the jury believe, from the evidence, that 
 before and at the time of the transactions in question, the de- 
 fendants were commission men, doing business on the board 
 of trade in {Chicago), and that some time about, etc., the par- 
 ties entered into a contract, whereby it was agreed that the 
 defendants should purchase grain in {Chicago) market for the 
 plaintiff, and hold the same until ordered by him to sell; and 
 that it was a part of the same agreement that the ])laintiff" 
 should place in the hands of the defendants a margin, or sum 
 of money, equal to {fioe) cents per bushel of the grain so to
 
 124: COMMISSION MEKCHANTS. 
 
 be purchased; and that in case the price of such grain should 
 fall in such market, while the said contract should run, that 
 then the said plaintiff should advance to the defendants addi- 
 tional margins, as they should from time to time demand; and 
 if the jury further believe, from the evidence, that pursuant 
 to that contract, the defendants did purchase the grain in 
 question for the plaintiff, and that the plaintiff did then place 
 in the hands of said defendants a margin {Jive) cents per bushel 
 of said purchase, and that after that the price of said grain 
 did fall in said market, then it became the duty of the plaintiff, 
 from time to time, upon reasonable notice, to advance to the 
 defendants additional margins, as the same should be de- 
 manded by them; and if he failed to do so, after reasonable 
 notice, then the defendants had a right to sell such grain; pro- 
 vided, they exercised good faith and reasonable discretion in 
 so doing. 
 
 And if you believe, from the evidence, that the parties 
 entered into the contract supposed, and stated in the last pre- 
 ceding instruction, and that the defendants bought the grain, 
 as therein supposed; then, if you further believe, from the 
 evidence, that the market price of the corn afterwards fell, in 
 said market; and further, that the defendants notified the 
 ])laintiti' of that fact, and demanded additional margins, and 
 that the plaintiff did not, within a reasonable time after such 
 notice and demand, advance the margins so demanded, then 
 the defendants had a right to sell said corn in tlu^r discretion, 
 being responsible only for the exercise of good faith in that 
 behaK. Oo^hett vs. Underwood, S3 111., 324; Moeller vs. Mc- 
 Lagaii, GO 111., 317; Denton vs. Jackson, 106 111., 433. 
 
 § 7. Factor's Lien. — The court instructs the jury, that a 
 commission man has a lien on the goods in his possession, not 
 only for his advances, commissions and expenses, made and 
 incurred upon those particular goods, but he also has a lien 
 for any general balance due to him; provided, there is no 
 special contract between the parties waiving such lien. 
 Schijfer vs. Fea<jin, 51 Ala., 335; Timn et al. vs. Howard, 
 .57 Ga., 410; 2 Kent Com., 640; Story on Agency, § 376; 
 Jarvis vs. Rogers, 15 Mass., 389.
 
 COMMISSION MEKCIIANTS. 125 
 
 § 8. Riujlit to Sell without Permission. — Tlie jury arc in- 
 structed, that a commission mcrcliant, who has received con- 
 signments of grain, with orders to hold the same, has a lien 
 thereon for any and all advances made and liabilities incurred 
 by him on snch grain; and when he has made advances iipnn 
 such grain to more than its value, or where such advances 
 and the proper charges and expenses are equal to its then 
 market value, and the commission man has I'easonable grounds 
 to believe that such grain is in danger of deterioration in 
 quality or depreciation in value, and the consignor, upon the 
 request of the consignee, neglects or refuses, after reasonable 
 notice, to make such advances good, and refuses or declines to 
 give permission to the consignee to sell the same, then the 
 commission merchant has a right to sell such grain, or so much 
 thereuf as is necessary to protect himself from loss, without 
 the orders of the consignor, and even contrary thereto, unless 
 there be an express agreement that this shall not be done. 
 Howard vs. iSmith, 56 Mo., 314; White vs. S?nith, 54 JST. Y., 
 522; Weed vs. Adams, 37 Conn., 378. 
 
 You are instructed, that when a commission man makes 
 advances, or incurs liabilities, in the discharge of his duties, 
 upon aconsignment of goods, he may sell the goods, or such 
 part thereof as shall be necessai-y to reimburse himself, for 
 such advances and liabilities, including his own proper charges, 
 in the exercise of a sound discretion, and in accordance with 
 the general rules and usages of the market, if any such ai-e 
 proved, and reimburse himself for all such advances, liabilities 
 and charges; provided, the consignor fails or neglects to 
 reimburse the commission man for such advances and liabili- 
 ties within a reasonable time after being notified so to do. 
 Story on Cont., 357. 
 
 § 9. When May not Sell. — The jury are instructed, that an 
 agent or factor, holding goods for his principal, has n > riaht, 
 without the authority of the principal, to sell such goods, 
 except it be to reimburse himself for actual advances made or 
 liabilities incurred, when he has no funds in his hands belong- 
 ing to his principal sufficient to reimburse himself for such 
 advances and liabilities, and when the principal fails or refuses
 
 126 com:viission merchants. 
 
 to provide funJi for such reitnbarsemgiit witliin a reason ible 
 time after demand therefor; and if he does sell such goods for 
 any other purpose, without the principal's authority, or while 
 he has funds in his hands belonging to his principal, suf- 
 ficient to reimburse himself for such advances and liabilities, 
 lie will render him -elf liable for all loss to the principal occa- 
 sioned by such sale. Story on Cont., § 357. 
 
 If you believe, from the evidence, that the defendant was 
 liokling the corn in question for the plaintiff, under an agree- 
 ment made between the parties that the defendant should so 
 hold it until ordered to sell by the plaintiff, provided, the 
 plaintiff should keep in the hands of the defendant a sum of 
 
 money, known as a margin, equal to at least , then tlie 
 
 defendant would have no right to sell the corn, in violation 
 of the plaintiff's directions {or vyithoat orders from Jiiin), on 
 the ground that the margin was exhausted, without first noti- 
 fying tlie plaintiff that it was so exhausted, and giving him 
 a reasonable time within which to put up the margin so agreed 
 upon, 
 
 § 10. Sellin;* witlimit Orders — Damage Must be SIiowti. — 
 
 Though the jury may find that the defendants were not 
 autliorized to sell the grain in question at the time they did 
 sell it, still, before tlie plaintiff would be entitled to recover 
 on that account, it must appear, by a )">re]:)onderance of evi- 
 dence, that he has suffered some damage thereby, and the 
 jury can only allow for that violation of duty, if it be a viola- 
 tion, such an amount of damages as the jiiry believe, from the 
 evidence, tlie plaintiff has sustained as the direct consequences 
 thereof. 
 
 § 11. Account Stated. — If the jury believe, from the evi- 
 dence, that the plaintiffs were commission men, doing busi- 
 ness in Chicago, and, in the Avay of their business, were from 
 time to time receiving grain, sent to them from the defendant, 
 to be sold for him by them, and were also, from time to time, 
 nr.d<iiig |iayments to defendant on account of such sales, or 
 advancing money to liini in connection with said business; 
 and further, that the plaintiffs, from time to time, sent to the 
 defendant, statements of the accounts between them, which
 
 COMMISSION MKKCIIANTS. 127 
 
 were received by defendant, and that he did not, within a 
 reasonable time, object to said statements and notify the 
 plaintiffs of said objection, then, as a matter of law, the jury 
 should regard the defendant as admitting that the accounts 
 were correctly stated, and he will be bound by them, unless it 
 is shown, by a preponderance of the evidence, that there was 
 some error or mistake in the accounts as rendered to him, of 
 which he was not informed at the time he so consented to 
 them. 
 
 § 12. Factors Presumed to Conform to Custom and Usa:2:e. — 
 
 That, when one person employs another to transact for him a 
 particular business, at a particular place or market, tlie em- 
 ployer is presumed to have given to the other authority to 
 act, in accordance with the rules and usages there established, 
 and generally known and adopted, though the principal may 
 be ignorant of them. 
 
 A person who deals in a particular market must be taken 
 to deal according to the known, general and uniform rules 
 and usages of that market, and he who employs another to act 
 for him at a particular place or market, in the absence of a 
 particular contract to the contrary, must be taken as intending 
 that the business to be done will be done according to the 
 rules and usages of that place or market, whether he, in fact, 
 knew of such rules and usages or not. Bailey vs. Bensley et 
 al., 87 111., 556. 
 
 § 13. Real Estate Brokers. — If the jury believe, from the 
 evidence, that the defendant solicited the plaintiff to use his 
 efforts to effect a sale of the premises in question, and told 
 him he would pay him (liberally for the same), and that rely- 
 ing upon that promise the plaintiff did use his efforts in that 
 behalf, and did perform services in endeavoring to effect such 
 sale, then the defendant is liable for what such services were 
 reasonably worth. McGill vs. Prcssley, 62 lud., 193; Hin- 
 ton vs. Coleman, 45 Wis., 165. 
 
 If you believe, from the evidence, that the plaintiff really 
 performed services for the defendant in endeavor to effect a 
 sale of the premises in question in the exi)ectation of being 
 paid therefor and that such services were of any value to the
 
 12S COMIMISSION MEE CHANTS, 
 
 defendant, and fnrtlier tliat tlie defendant knew at the time 
 that the plaintiff was performing such services with tlie ex- 
 pectation of being paid tlierefor, then the plaintiff is entitled 
 to recover what such services were reasonably worth, although 
 you may iind from the evidence that there was no express 
 promise to pay and no price agreed upon. McGill vs. Press- 
 ley, 02 Ind., 193. 
 
 You are instructed that the contract between defendant and 
 the said B. introduced in evidence in this case is a binding 
 contract between the parties thereto, and if you believe from 
 the evidence that the defendant agreed with the plaintiff that 
 if he would find a purchaser for or make a sale of said prop- 
 erty defendant would pay him, etc., and that in pursuance of 
 that agreement and promise the plaintiff by his efforts and 
 services procured tlie making of said conti-act of sale between 
 the said defendant and B., then the plaintiff is entitled to re- 
 cover no matter whether the said B. afterwards refused to 
 carry out said contract of sale or not. Love et at. vs. Miller 
 et al., 53 Ind., 294; Bees vs. Spruance, 45 111., 308; M'uldlcton 
 vs. Finda, 25 Cal., 76; Glendworth vs. Luther., 21 Barb., 145; 
 Rice vs. Almjo, 107 Mass., 550. 
 
 If you believe, from the evidence, that the defendant left a 
 description of the proi)erty with the plaintiff as real estate 
 agent for the ]nirpose of having him find a purchaser for the 
 property under an agreement to pay him, etc., and that no 
 time was fixed within which this was to be done, then the law 
 would imply that it was to be done within a reasonable time 
 thereafter, and if you further believe, from the evidence, that 
 the plaintiff, relying on such promise and agreement, did within 
 a reasonable time find a purchaser at the ])rice named, then 
 the plaintiff is entitled to his ])ay and commissions, although 
 you may further find from the evidence that the defendant 
 liad ah-eady sold the property before the ])laintiff found his 
 purcliaser; provided you further believe from the evidence 
 that the plaintiff did not know and had liad no notice of the 
 fact that the defendant had effected a sale of the property at 
 the time the j^lainiiff found his i)urchaser. Lane vs. Albright., 
 49 Ind., 275. 
 
 If you believe from the evidence that the defendant re- 
 quested the plaintiff to assist him in finding a purchaser for,
 
 COMMISSION MERCHANTS. 129 
 
 or in making sale of property in question, and tliat acting on 
 that request tlio plaintiff introduced to defendant as the pur- 
 chaser one A. B., and that the said A. B. did afterwards pur- 
 chase said property, then the plaintiff is entitled to a reason- 
 able compensation for his services although the contract of 
 sale was actually negotiated and eff'ected by the defendant 
 himself. Arringtoii vs. Cai'ij^ 5 Bax. (Tenn.), 501). 
 
 § 14. Contracts, Illegal. — The jury are instructed, that a 
 contract for the sale and future delivery of grain, by which the 
 seller has the privilege of delivering or not delivering, and the 
 buyer the ])rivilege of calling or not calling for the grain, just 
 as they choose, and which, on its maturity, is to be tilled by 
 adjusting the differences in the market vakie, is an option 
 contract, in the nature of a gambling transaction prohibited by 
 law. Pichering YS. Cease, 1^ 111., 328; Iii re Green, 7 Biss., 
 338; Jludolfvs. Winters, 7 Neb., 125. 
 
 A dealer on the board of trade has a right to sell and 
 agi-ee to deliver at some future time property which he does 
 not own at the time but which he expects to go into the 
 market and buy, but an agreement for a sale and future de- 
 livery of grain is a gambling contract and illegal if it is the 
 understanding and intention of both the parties at the time 
 that there is to be no actual sale, purchase, receipt or deliv- 
 ery of the grain, at the time fixed for the delivery thereof 
 but only that the parties shall only then settle and the 
 purchaser receive or pay the difference between the agreed 
 price and the market price according as the market price is 
 less or greater than the agreed price. Gregory vs. Weridall, 
 40 Mich., 432; Eamsey vs. Berry, 65 Mo., 574. 
 
 One of the questions to be passed upon by the jury, is this: 
 was there an actual hoiia fide contract between the parties, for 
 a sale of corn to be delivered by the seller and received by the 
 purchaser, or was it understood that no grain should be actually 
 purchased or delivered, but only that a settlement should be 
 made upon the basis of the market price at the time men- 
 tioned for delivery. KirTxpatrick vs. Bousell, 72 Penn. St. 
 155. 
 
 If the jury believe, from the evidence in this case, that the 
 deals or contracts showm in evidence were a mere contrivance for 
 9
 
 130 COMMISSION MERCHANTS. 
 
 enabling the parties thereto to hazard the deposit of money 
 on the fl actuations of the market vahie of Xo. 2 spring wheat, 
 and were not, in fact, real contracts for the sale of wheat by 
 the parties thereto, then the jury are instructed, as a matter of 
 law, that such deals or contracts were illegal and void, and would 
 be binJaig on neither party. Lowry vs. DlLlman, 59 Wis., 
 197; Barnard vs. Bachaus, 52 Wis., 593. 
 
 That by the conti-act for the sale of the wheat in question 
 neither party intended to deliver or receive any wheat under 
 the contract, but that the parties expected thereby to wager 
 the margin deposited, and that either party had the option to 
 annul the contract at any time by refusing to put up additional 
 margins, and that, in fact, the contract was a mere devise for 
 carrying out a wager on the market value of the wheat and was 
 not a hona fide sale or agreement to sell for future delivery 
 then the jury are instructed that such contract is illegal and 
 void. Toiiillii vs. Calleii^ 69 la., 229; First N'at. B. vs. 
 Oskaloosa P. Co.^ '6^ la., 41. 
 
 Although the jury may believe, from the evidence, that at 
 or about the time stated, the plaintiff and defendant entered 
 into a contract by which it was nominally and in terms agreed 
 between them, etc., still, if the jury further believe from the 
 evidence that at the time of making said agreetnant, neither 
 of the jxirties contemplated an actual sale and delivery of 
 said corn, but that it was understood between them that the 
 said deal was to be settled by the parties by the payment from 
 one to the other of the difference between the agreed price 
 and the market price on the day of settlement, then such a 
 contract is in law regarded as a gambling transaction and is 
 illegal and void, and neither party can sustain an action for a 
 breach of such contract. Teriney vs. I'oote, 4 111. App., 594. 
 
 § 15. Contracts Legal. — If the jury believe, from the evi- 
 dence, that the defendant employed the plaintiff to act for 
 him in the capacity of broker or commission man to purchase 
 and sell grain for him on the board of trade, and that, acting 
 under that employment, the plaintiff did in good faith con- 
 tract to purchase for the defendant 2,000 bushels of ISTo. 2 
 
 corn, to be delivered during the then next month of , 
 
 then the fact, if proved, tliat the defendant intended to resell
 
 COMMISSION MERCHANTS. 131 
 
 tlie same corn before the time of its delivery under sucli con- 
 tract of purchase, would not alone render the transaction a 
 gambling contract or in any manner invalidate it. Sawyer vs. 
 Tagrjarl, 14 Bush (Ky.), T27. 
 
 The jury are further instructed, that if one of the parties 
 to a contract for the future sale and delivery of grain con- 
 templates and intends an actual sale and delivery, then the 
 transaction would be legal and binding, irrespective of any 
 illegal purpose entertained by the other party; a contract 
 cannot be a gambling contract unless both parties concur in 
 the illegal intent. Gregory vs. Wendall, 40 Mich., 432; 
 Story vs. Solomon^ 71 JST. Y., 420; ^YaU vs. Sehieider, 59 
 Wis., 352. 
 
 The jury are instructed as a rule of law that when a cus- 
 tomer orders commission merchants to make contracts for the 
 purchase and future delivery of (lard) or other commodities 
 for him, and the commission merchants in pursuance of such 
 order do enter into valid contracts for the delivery at a future 
 time of the commodities so ordered, the law implies a conti-act 
 on the part of the customer to furnish to the coinmission 
 merchants sufficient funds to pay for the commodities so pur- 
 chased when delivered ; and the customer must also do and 
 perform with and loi his connnission merchants and for their 
 protection, whatever the law or the general and uniform 
 custom and usage of the place where the commission mer- 
 chants are ordered to make the purchase requires, provided 
 the jury believe, from the evidence, that there were any such 
 customs and usage at that place, and if the commission mer- 
 chants have made any such contracts as were ordered by the 
 customers and they have been required to pay out money on 
 account of such contracts they can recover of their customer, 
 at law, for the money so paid out ; provided the money so 
 paid has been paid in accordance with the usage and customs 
 of the market where such contract was made. 
 
 If' the jury believe, from the evidence, that tlie plaintiffs, a/ 
 commission merchants, did, at the time alleged, enter int( 
 contracts upon the board of trade in C, for the purchase of 
 etc., upon the order of the defendant and as ordered by him. 
 and that by the (rules of the board), or by the general and 
 uniform custom and usage prevailing among dealers on the
 
 132 COMMISSION MERCHANTS. 
 
 board, tlie plaintiffs were required to furnisli a certain sum 
 of money as margins upon such contracts, then and in that 
 case it became the duty of the defendant to furnish to the 
 plaintiffs a reasonable sum a^ such margins, when called upon 
 6D to do. And if the jury further believe from the evidence 
 that the plaintiffs did enter into such contracts, as aforesaid, 
 upon said board and upon the order of the defendant, and 
 were required by the (rules) or customs and usage afore- 
 said to put up margins, and that they called upon the defend- 
 ant for a reasonable sum of money as such margins, and that 
 the defendant when so called ujion neglected or refused, or 
 was unable to furnish the same within a reasonable time, then 
 the plaintiffs had the right to close out the contracts so made 
 by them, and thereby determine the loss, if any, sustained by 
 them bj' reason of such contracts, and call upon the defend- 
 ants to make good such loss; provided the jury believe, from 
 the evidence, there was no special contract or arrangement 
 between the parties, varying these rules or usagos and cus- 
 toms. Denton vs. 'fachson^ 106 111., 433; GorVU vs. Under- 
 wood, S3 111., 324; Miller vs. McLagan, 60 111., 317. 
 
 If the jury believe, from the evidence, that some time on 
 and about, etc., the plaintiff and the defendant entered into a 
 contract, whereby it was in good faith mutually agreed be- 
 tween them that defendant should sell to the plaintiff' 25,000 
 bushels No. 2 corn, at 43 cents per bushel, deliverable to 
 the plaintiff" at any time during the month of (November) 
 following, at the option of the defendant, the plaintiff to pay 
 for tiie same at the jirice of 43 cents ])er bushel on delivery, 
 tlien such contract would be valid and binding upon the par- 
 ties. Ibid. 
 
 If the jury believe, from the evidence, that on and about, etc. 
 the parties in good faith entered into a contract whereby it 
 was mutually agreed between them that defendant should sell 
 to the plaintiff 25,000 bushels of No. 2 corn at 43 cents per 
 bushel, deliverable to the plaintiff' at any time during the 
 month of, etc., at defendant's election, the plaintiff to pay for 
 the same at the ))rice aforesaid on delivery — and if the jury 
 further believe from the evidence that such contract was made 
 between the j-arties as members of the board of trade at, etc., 
 and under the rules of said board, and that it was one of the
 
 COIUMISSION MEECHANTS. 133 
 
 rules of said board or that there was any general and uniform 
 custom or usage among dealers on said board that when such 
 contracts had been made and the price of the grain should ad- 
 vance before the time of delivery of the same that then the 
 purchaser had the right to call upon the seller to put up or de- 
 posit a sum of monej'' as margins reasonably sufficient to insure 
 the performance of the contract by the seller and that in case 
 of his failure so to do that the purchaser should have the right 
 to go upon the board and purchase an equal amount of grain 
 at the then market price for account of the seller, charging him 
 with the difference between the contract price and such mar- 
 ket price — and if the jury further believe from the evidence 
 that on or about, etc., the market price of said corn on said 
 board of trade did advance to about 40 cents per bushel 
 and that plaintiff then requested defendant to put up such 
 margins, and defendant neglected and refused to do so 
 within a reasonable time after such demand, then the plaintiff' 
 had a right to go into the market and purchase for the account 
 of the defendant 25,000 bushels of No. 2 corn to be delivered, 
 etc., at the then market price. Follansbee vs. Adams, 86 111., 13. 
 
 And if the jury further believe from the evidence that on, 
 etc., the plaintiff did in good faith purchase 25,000 bushels of 
 iSTo. 2 corn at 49 cents per bushel for the account of the said 
 defendant to be delivered, etc., and that 49 cents was then 
 the fair market price thereof, then the plaintiff is entitled to 
 recover from the defendant the difference between the con- 
 tract price and the market price so paid. 
 
 If the jury believe from the evidence that some time about, 
 etc., the parties entered into a contract (as in the last preceding 
 instruction) and that such contract was made between the 
 jiarties as members of the board of trade at, etc., and under 
 the rules of said board of trade, then the court instructs you 
 that under the rules of said board introduced in evidence in 
 this suit, in case of an advance in the market price of said 
 corn before the delivery thereof, the plaintiff would have the 
 right to call upon the defendant to put up or deposit a sum of 
 money as margins reasonably sufficient to cover such advance 
 in price, and in the event of the defendant refusing to put up 
 such margins the plaintiff would have the right to go upon 
 the board and purchase the same quantity of No. 2 corn at the
 
 134 COMMISSION MEKCHANTS. 
 
 then market price for llie account of the defendant and charge 
 hhii with the difference between the contract price and tlie 
 market price so paid, ^\■hether in this case the price of corn 
 did advance as alleged bcfoj-e delivery and whether the plaintiff 
 did demand such margins and whether the defendant refused 
 to put such margins and whether the plaintiff did in good 
 faith purchase the 25,0U0 bushels of corn for the account of 
 the defendant and pay therefor — 49 cents a bushel, — are all 
 questions of fact to be determined by the jury from a prepon- 
 derance of the evidence in the case. 
 
 If the jury believe, from the evidence, that there was a con- 
 tract between plaintiff and defendant, which fixed the amount 
 of margins which plaintiff should keep good, then they are 
 instructed as a matter of law, that any custom of the board of 
 trade, as to the amount of margins usual or reasonable, is imma- 
 terial in this case, for the contract will govern as to that matter. 
 
 If tlie jury find, from the evidence, that there was a con- 
 tract between the parties as to the amount of margins which 
 plaintiff should put up for the protection of the defendants 
 in their deals for him, and that the plaintiff did not keep up 
 the margin which he had contracted to do, and that den)and 
 therefor was made by the defendants, and that upon such 
 demand the plaintiff neglected and refused to put such margins 
 within a reasonable time after such demand, then the defend- 
 ants would have a right to close out the plaintiff's deals in 
 accordance with the usages and customs prevailing among 
 dealers on the board of trade, provided the jury believe, from 
 the evidence, that there was, at the time, any general uniform 
 and well known usage or custom governing such matters 
 among dealers on the board of trade. Denton vs. Jackson, 
 lOG 111., 433. 
 
 If the jury believe, from the evidence, that at the time in 
 question a general and uniform custom and usage obtained 
 among commission merchants doing business on the board of 
 trade at, etc., to the purport and effect, that when one com- 
 mission merchant upon the order of a customer sold to another 
 commission merchant a quantity of any commodity for future 
 delivery and it afterwards occurred before the maturity of the 
 contract that the first commission merchant received from 
 another customer an order to purchase the same, or a larger
 
 COMMISSION MERCHANTS. ] 35 
 
 quantity of the same commodity for the same future delivery, 
 and he executed this second order by making a purchase from 
 the same commission merchant to M'hom lie had made the sale 
 in the other case, that then and in such case, the two commission 
 merchants would meet together and exchange or cancel both the 
 contracts as between themselves, adjusting the differences, if 
 any, in the prices between the two contracts and restoring the 
 margins, if any have been put up, and that from that time 
 forth the first commission merchant should liold such contract 
 of purcliase for the benefit of the customer for whom he had 
 sold in the first instance, so that the commodity of the selling 
 customer miglit, when delivered, be turned in on the order or 
 contract of the purchasing customer, and that in the meantime 
 the commission mercliant guaranteed to each of his customers 
 the performance of the contract as originally made on his be- 
 half, then tlie court instructs you that these customs and usages 
 are founded in commercial convenience and are not in contra- 
 vention of law but are binding on the parties. 
 
 The jury are instructed that by the laws of this State, ware- 
 house receipts are assignable by indorsement and the delivery 
 of a recei])t properly indorsed is equivalent to a delivery of 
 the grain called for by the receipt and a tender or offer of a 
 warehouse receipt properly indorsed is equivalent to a tender 
 of the grain called for by the receipt. Gregory vs. Wendall^ 
 40 Mich., 432; Davis vs. Russell, 52 Cal., 611.
 
 CHAPTER XIV. 
 COXDEM]S"ATION OF LAND— EMINENT DOMAIN. 
 
 Sec. 1. Measure of damages. 
 
 2. Compensation for land taken irrespective of benefits. 
 
 , 3. Damages not allowed for part not taken, when. 
 
 4. Compensation covers what injuries. 
 
 5. Appropriation of streets. 
 
 Note. — Concerning the amount of damaees or the principles upon which 
 compensation is to be measured to the owner of property taken for public 
 use there are no fixed rules embracing the whole subject universallj' appli- 
 cable throughout the different states. In determining the quantum of dam- 
 age, regard must be had to anj' constitutional or statutory provisions relat- 
 ing to the subject and also to the previous course of decisions in which those 
 provisions have not unfn quently originated. In states where the subject 
 is not expressly regulated by positive law the books abound in cases which 
 cannot be reconciled respecting what is and what is not proper to be taken 
 into consideration in the way of benefits on one hand or of injuries on the 
 other. 2 Dillon on Munic. Corp., § 486. 
 
 § 1. Measure of Damages.- — Tlie court instructs the jury that 
 it is their dut}' in this case to ascertain from the evidence the 
 just compensation to be made to the several claimants for the 
 ])roperty to be taken or damaged by the proposed improve- 
 ment. 
 
 Just compensation means the payment of such a sum of 
 money to the owner of the property proposed to be taken or 
 damaged as will make him whole, so that upon the receipt by 
 liim of the com] ensation and damage awarded he will not be 
 any poorer by reason of his property being so taken or dam- 
 aged. Bigeiowx&. W. W. Bd. Cb., 27 Wis., 4TS; 1 Eedlld. 
 on Ey., 261. 
 
 In estimating the compensation to be paid for the property 
 to be taken, the jury should exclude from their minds all con- 
 sideration of possible benefits, if any, to accrue from the im- 
 provement to the lots or parts of lots not proiDosed to be 
 taken. Ihj. vs. Gilson, 8 Watts, 243. 
 
 You are instructed that the measure of compensation to be 
 
 (136)
 
 CONDEMNATION OF LAND. 137 
 
 awarded to tlic owner of the land sought to be condemned in 
 this proceeding is the vahie of the land as a part of the lot to 
 which it belongs* and in determining such value the jury are 
 instructed not to take into consideration the effect which the 
 proposed improvement will have either upon the whole lot, 
 the part to be taken or the part that will remain after the im- 
 provement is made, the value of the portion which is pro- 
 posed to be taken should be determined wholly independently 
 of the jjurpose for which it is to be taken. 
 
 § 2. Compensation to be Made for Land Taken Irrespective of 
 Benefits. — In assessing the compensation to be made to the own- 
 ers of the land the jury should assess the value of the land 
 taken at what they believe, from the evidence, it is worth, irre- 
 spective of any benefits which may or may not accrue to the 
 remainder of the tract — and also any damage which the jur}"- 
 believe, fi'om the evidence, will result to the owner by reason 
 of the diminished value of the remainder of the tract, if any- 
 thing, in consequence of the appropriation of the land taken 
 (over and above special benefits when proper). 
 
 In ascertaining these amounts you are to take into considera- 
 tion not only the purposes to which the land is or has been 
 applied but any other beneficial purpose to which the jury can 
 see from the evidence it might reasonably be applied, and 
 which would affect the amount of compensation or damages. 
 Railway Co. vs. Longworth, 30 Ohio St., 108. 
 
 You are instructed, as a matter of law, that in ascertaining 
 the just compensation to be made to the owners of the several 
 tracts of land proposed to be taken, no benefit or advantage 
 which may accrue to lands or property not taken, should be set 
 off or deducted from the compensation coming to the owner 
 on account of the value of the land which is to be taken. 
 
 §. 3. Damages not Allowed for Part not Taken, When. — If you 
 
 believe, from the evidence, that the remainder of any lot or 
 parcel of land, part of which is ])ro posed to be taken for, etc., 
 will be specially benefited by the improvement, that is, that 
 it will receive benefits or advantages which do not accrue to 
 other property in the neighborhood, and that these special 
 benefits will increase its value beyond its value as a part of the
 
 13S EMINENT DOMAIN. 
 
 whole Jot before any part was taken, then yon should find that 
 the remainder of the property, or the part not taken, will not 
 be damaged by the contemplated improvement. 
 
 If you believe, from the evidence, with regard to any lot or 
 parcel of land m question, that the jnst compensation which is 
 to be awarded for the ]mrt proposed to be taken, when added 
 to the value of the remainder of the lot not taken, will be 
 equal to the value of the whole lot or parcel of land before 
 the taking, then you should not award any damages to that 
 l^ortion or parcel of the land not taken. 
 
 § 4, Compensation Covers Wliat Injuries. — In cases of this 
 kind damages are assessed and compensation made once for 
 all, and this proceeding will forever bar the claimant and all 
 persons holding the property under him from any future 
 claim for damages resulting from the building and operation 
 of the contemplated road in an ordinary and careful manner. 
 The compensation is, therefore, to be determined according to 
 the full measure of the rights acquired by the corporation, 
 and not according to the mode in which they propose to 
 exercise those rights in the first instance. The damages to be 
 assessed include all the injury to the remaining portion of the 
 land by cutting o2 access to or egress from the different 
 parts of the farm, or in rendering it inconvenient for use by 
 cutting it up into irregular pieces or in any mannei rendering 
 it less suitable for convenient and profitable occupation and 
 use, or for cutting it up into lots, provided the jury believe 
 from the evidence that the construction and operation of the 
 contemplated road across the claimant's farm will injuriously 
 affect its value in any of these modes. Drury vs. Midlana 
 Rd. Co., 127 Mass., 571; C. <& I. Ed. Co. vs. IlopJdns, 90 
 111., 316; 1 Redfld. on Ry., 2S8. 
 
 If you believe, from the evidence, that the lands of the 
 claimant adjoining tlu proposed railroad track, will be less valu- 
 able because of their exposure to fire, or for the reason that the 
 railroad will cut the lands into irregular fields, or will render 
 access to the different portions of the lands more inconvenient 
 or dangerous, then, these are all matters which may be taken 
 into account by you in estimating the claimant's damages. 
 You are not to fix any definite estimate of the amount of
 
 CONDEMNATION OF LAND. 139 
 
 damages ansiiig from these several sources. The true ques- 
 tion to be determined is, what is the market value of the 
 property as a whole, without the railroad, and what will be 
 its market value after the road is built and in operation, mak- 
 ing no allowance for any general benefits which the property 
 may derive from the building of the road, and which it will 
 share in common with the other property generally in the 
 vicinity. The value of the property taken and the deprecia- 
 tion in the market value of the remainder, if any, is the com- 
 pensation to which claimant is entitled. TJtica li. H. Co. in 
 re, 5G Barb., 456; Snyder vs. Railroad Co., 25 Wis., 60. 
 
 In determining whether the property in question will be 
 injuriously affected by the building and operation of the rail- 
 road, the jury may consider whether the pi'operty is adapted 
 to business purposes, or only useful as residence property; but 
 you are only to take these matters into consideration for the 
 purpose of determining whether the value of the pro])erty 
 will be depreciated, and the extent of such depreciation by the 
 building and operation of said railroad as contemplated. 
 
 Tou are further instructed, that in no event must the dam- 
 ages exceed the sum which would be obtained by determining 
 the difference between the actual value of the property in 
 question with the railroad constructed and operated in the 
 manner contemplated, and what that value vvould be, were the 
 railroad not built. 
 
 You are instructed that they should not take as a separate 
 and distinct basis for the assessment of damages, such remote 
 contingencies as frightening of horses, liability of fires, dan- 
 ger to persons from passing trains; such contingencies are only 
 to be considered for the purpose of determining whether and 
 to what extent the value of the property will be decreased by 
 the building and operation of the railroad. If, in consequence 
 of its exposure to such dangers, the actual value of the prop- 
 erty will be diminished to any extent, then such decrease in 
 value measures the actual loss to the owner. Blcsdi vs. C . c& 
 N. ^Y. R. i?., 48 Wis., 168. 
 
 If you believe, from the evidence, that in consequence of 
 the building and operation of the railroad the property in 
 question would be depreciated in value, whether from expos- 
 ure to lire, inconvenience from trains or from danger to per-
 
 140 EMINEIsT DOilAIN. 
 
 sons and pro pert}' , then sucli matters will be proper to be taken 
 into account by yon in determining whether and to what ex- 
 tent the said A, B. will be damaged by the construction of 
 said road. The real question for the jury is whether, in con- 
 sequence of tiie building and operation of the road, the 
 j-jroperty in question will be diminished in value. BlcscJi vs. 
 C. & N. W. R. R., 48 Wis., 168. 
 
 If you believe, from the evidence, that there will necessarily 
 be an increased danger to the premises in question from fire 
 arising from the building and operation of the contemplated 
 railroad, or that the cost of insuring the buildings thereon, 
 with their contents, will be necessarily increased by the build- 
 ing and operating of said road, and that the (rental) value of 
 the premises will be decreased in consequence thereof, then 
 these are facts proper to be considered by you in determining 
 the question of damage and the amount thereof, as regards 
 said premises. Lafayette^ etc., Rd. Co. vs. Murdoch et al., 68 
 Ind., 137; Sivinney vs. Ft. Wayne, etc., Rd. Co., 51 Ind., 205. 
 
 In assessing the claimant's damages your inquiry must be 
 confined to the marketable value of his land before and after 
 the right of way is appropriated, taking into account, in this 
 connection, the number of acres taken for the right of way, 
 the manner of its location, the way his land is cut by the rail- 
 road, and all other like matters appearing in evidence which 
 affect the value of the land, so as to be able to estimate its true 
 market value, as affected by the location of the railroad, before 
 and after such location. The difference in the market value 
 of the land before the appropriation of the strip for right of 
 ■way and after the right of way is taken, will constitute the 
 claimant's true measure of damages; provided you believe, 
 from the evidence, that the property will be less valuable after 
 the right of way is taken, in consequence of such taking. 
 IIartshor?i vs. R. C. d; N'. R. Co., 52 la., 613. 
 
 If you find, from the evidence, that the claimant's farm con- 
 sists of about (five liundred) acres of improved land, and that 
 defendant's right of way cuts the same in such a manner as to 
 injure the value of the same, by the manner in which it is 
 divided, then you are at liberty to consider all the ciicum- 
 stances and effects, if any, upon the lands, by reason of the 
 location of the railroad thereon, 3.nd all the inconveniences, if
 
 CONDEMNATION OF LAND. 141 
 
 any, directly caused by tlie railway in determining tlie efi'cci; 
 which the same would have upon the market value of the 
 lands. You must bear in mind it is the depreciation in the 
 market value of the premises, if any will result from the 
 building and operation of the road, which is the true measure 
 of damages, and for which you are to allow. You do not 
 allow anything for the matters which cause such depreciation, 
 except as you allow for them in allowing for the amount of 
 the depreciation itself. 
 
 § 5. Appropriation of Streets. — The court instructs the jury 
 that as the owner of the lots and buildings in question, the 
 said A. B. has a vested right of free access to and egress from 
 the lots and buildings over and along P. street in front of the 
 lots as the same are now located and used. That this is aright 
 of property that cannot be materially inijH'oved or destroyed 
 without his consent except upon payment to him of reason- 
 able compensation therefor; and, therefore, if you believe, 
 from the evidence, that the contemplated railroad will mate- 
 rially impair or injure the rights of ingress and egress in 
 the transaction of business upon the premises in question, he 
 is entitled to recover such damages as will compensate him for 
 the injury. Blesch vs. G. & N. W. Rd. Co., 48 Wis., 168: 
 Grand liapids, etc., Rd. Co. vs. Ileisel, 38 Mich., 62; Cent. 
 Branee U. P. Rd. Co. vs. Tioine, 23 Kans., 585. 
 
 If you find, from the evidence, that the property of the 
 said A. B. will be injuriously affected by the construction 
 and operation of the contemplated railroad along in front 
 of the said lots, then the measure of damages will be the 
 difference between the value of the property without the 
 railroad, and its value with the road built and in operation. 
 
 If the jury believe, from the evidence, that the running of 
 the cars and locomotives on the street in front of the prem- 
 ises in question, in the usual and ordinary manner of operating 
 such cars and locomotives, will create smoke and cinders and 
 throw them upon the premises, so as materially to impair the 
 reasonable use and enjoyment thereof, then you have a right 
 to take these matters into consideration in determining 
 whether or not the said A. B. will be damaged by the location 
 and operation of the railroad; but said damages, if any, must
 
 142 EMINENT DOMAIN. 
 
 be actnal damages, and tliej can only be considered for the 
 jmrpose of determining wliether the value of the property, 
 with the road constructed, will be less than it would be with- 
 out the railroad, and the extent of the depreciation in value, 
 if any. Chicago, etc., R. Co. vs. Mall, 90 111., 42. 
 
 The jury are instructed, that if they find from the evidence 
 that the plaintiff will enjoy any benefits peculiar to his land 
 from the railroad being built on this street, such benefits 
 must be deducted from his damages, if any are sustained by 
 him ; but such benefits as he will enjoy in common with the 
 whole community must not be so deducted. 
 
 In estimating the damages arising from (the widening of 
 the street) and the taking of the claimant's land therefor, the 
 juiy should allow as a set-off, any special benefits which will 
 accrue to that portion of the lot not taken in consequence of 
 (the widening of the street), provided, the jury believe, from 
 the evidence, that any such special benefit will accrue there- 
 from. The benefits which may be thus deducted or set off, 
 are such as are direct and special to the property of the claim- 
 ant, but not general benefits shared by his land in common 
 with other lands in the vicinity, or in common with other lots 
 abutting on the same street, no part of which is taken. Bene- 
 fits may be direct and special although other lots upon the 
 same street similarly situated will be similarly benefited. 
 Parks vs. Uamjpdeii, 20 Mass., 395; Cross vs. Plymouth, 125 
 Mass., 557. 
 
 If you believe, from the evidence, that the property in 
 cpiestion is city property, and mainly valuable to be built up 
 and occupied as a residence, or for building purj)oses, and that 
 it is in such close proximity to the proposed railroad that the 
 jar caused by the moving trains will affect the buildings 
 standing thereon, or the noise, smoke or increased danger 
 caused by the use of the railroad, will depreciate the market 
 value of the property, then such matters are proper to be 
 considered by you in estimating the amount of comjiensation 
 to which the plaintiff is entitled. You are not to fix any defi- 
 nite estimate of the amount of damages arising from the 
 f-everal sources. The real question to be determined, is, what 
 is the market value of the pro])erty as a whole without the 
 railroad, and what will be the market value of the remainder
 
 CONDEMNATION OF LAND, 143 
 
 after the road is built and in operation, making no allowance 
 for any general benefits which the property may do'ive from 
 the building of the road and wliich it will share in common 
 with other ]iroperty generally, in the vicinity. The value of the 
 property tal^en and the depreciation, if any, in the market 
 value of the remainder, added together constitute the compen- 
 sation to which the claimant is entitled in this proceeding. 
 In re N. Y. G. li. li., 15 Hun, 63; Chicago, etc. li. Co. vs. 
 Hall, 90 111., 42. 
 
 In considering the claim for damages to the part of the lot 
 not proposed to be taken, the question for the jury to deter- 
 mine is whether such remainder will be damaged by the pro- 
 posed improvement, and if the jury believe, from the evidence, 
 that the substitution of a street immediately in front of and 
 adjoining such remainder in the place or instead of the strip 
 of land proposed to be taken, will not decrease the value of 
 such remainder below its value considered as a part of the lot 
 before anj'- portion was proposed to be taken, then the jury 
 should not find any damages as to such remainder. 
 
 You are instructed that while you may and should consider 
 the various theories or modes detailed by the witnesses by 
 which they severally arrived at the amount of compens;ation 
 to be made or the value of the land to be taken, you may 
 adopt the theory or mode which appears to you to be the 
 best and fairest, if not inconsistent with the rules of law as 
 given in these instructions. 
 
 If you believe from the evidence that in any instance the 
 diminution of a lot by this proposed improvement will imjmir 
 tJie value of the part of the lot not taken, such impairment 
 should be considered as an actual injury to the part not taken, 
 and as the direct result of such taking, and for which, under the 
 constitution and laws of this state, the owner is entitled to 
 compensation, but he is only entitled, in this case, to recover as 
 damages the excess of damage, if any, above the benefits, if 
 any, which will accrue to the part not taken by reason of such 
 improvement. 
 
 You are further instructed, as a matter of law, that the owner 
 is entitled not simply to such compensation for the land taken 
 as the land would sell for at forced sale, but to such sum as 
 you believe from the evidence the land is fairly worth and
 
 144 EMINENT DOMAIN. 
 
 would bring in the market in tlie usual method of selling land 
 at private sale. 
 
 You are not to understand, from any of the instructions 
 given, that the value of the part of the lot to be taken is to be 
 estimated at its value for use independently of the balance of 
 the lot, but its value is to be estimated with reference to its 
 use in connection with and as a portion of the property not 
 taken.
 
 CHAPTER XV. 
 
 CONTRACTS. 
 
 Sec. 1. Capacity to contract. 
 
 2. Drunkenness. 
 
 3. Fraud and circumvention in procuring execution of contract. 
 
 4. Sifjnature procured by fraud. 
 
 5. What constitutes a contract — Assent of parties. 
 
 6. What a contract of sale. 
 
 7. Consideration necessary to a valid contract. 
 
 8. What IS a consideration. 
 
 9. New promise to perform a legal obligation. 
 
 10. Promise to receive part payment in full satisfaction. 
 
 11. Partial payment by a stranger. 
 
 12. Construction of contracts. 
 
 13. Contract modified. 
 
 14. Right to rescind contract for fraud. 
 
 15. Right to rescind for mistake of facts. 
 
 16. Notice of intention to rescind must be given, etc. 
 
 17. Rescinding by mutual consent. 
 
 18. Rescinding for non-performance. 
 
 19. Partial performance — Breach of contract. 
 
 20. Hardship will not excuse non-performance. 
 
 21. What is an act of God. 
 
 22. Burden of proving breach of contract. 
 
 23. Contract made on Sunday. 
 
 24. Marriage contract, how proved. 
 
 25. Unchastity no defense, when. 
 
 26. Desirability of parties contracting. 
 
 27. Breach of promise, how proved. 
 
 28. Promise obtained by fraud. 
 
 29. Offer to perform not necessary, when. 
 
 30. Subscription paper. 
 
 81. Composition agreement void — Fraud. 
 
 32. Sale of personal property — Future delivery. 
 
 33. No demand need be made, when. 
 
 34. Only act of God and public enemies will excuse non- performance. 
 
 35. Plairtiff must show readiness to perform. 
 
 36. Tender of performance. 
 
 37. Custom and usage enter into and form a part of the contract. 
 
 BUILDING CONTRACTS. 
 
 38. Certificate of architect. 
 
 10 (145)
 
 146 CONTKACTS. 
 
 § 1. Capacity to Contract. — Tlie jury are instructed, that 
 the law presumes that all adult persons have sufficient inteh 
 leetnal capacitj^to transact husiness witli ordinary intelligence, 
 and the party alleging incapacity must overcome this presump- 
 tion hy a preponderance of evidence. 2 Pars, on Cont., 572; 
 McCarty vs. Keanian, 86 111., 291. 
 
 The court instructs you, that the legal presumption is, that 
 all persons of mature age are of sound mind and memory, and 
 this presumption continues until the contrary is shown by a 
 preponderance of evidence. S'tlli/ vs. Waggoner^ 27 111., 395. 
 
 The court instructs you, as a matter of law, that when the 
 mind is so deranged that a person cannot comprehend and 
 understand the effect and consequences of an act, or the busi- 
 ness in which he may be engaged, then the law will relieve 
 him from the consequences of his acts; but so long as he is 
 possessed of the requisite mental faculties to transact rationally 
 the ordinary affairs' of life, he will not be released from the 
 responsibility that rests upon the ordinarj' citizen. Hariris vs. 
 Wamsley, 4:1 la., 671; 2 Pars, on Cont., 572; Titconib vs. 
 VantijU, 84 111. 372. 
 
 To establish such a want of mental capacity as will avoid a 
 contract on that ground, there must be such a degree of men- 
 tal derangement or imbecility of mind as will induce the belief 
 that the party was incapable of comprehending the effect and 
 consequences of his act in entering into the contract. 
 
 If a person is callable of reasoning correctly on the ordinary 
 affairs of life, or is capable of comprehending and understand- 
 ing the consequences which usually accompany ordinary acts, 
 he will be held to be of sound mind, and be bound by his con- 
 tracts. Baldwin vs. Dunton, 40 111., 188. 
 
 The court further instructs you, that mere mental Aveak- 
 ness of one of the parties to a contract, is not sufficient to avoid 
 tlie conti-act, or authorize the party to rescind it, if such weak- 
 ness does not amount to an inability to comprehend and under- 
 stand the terms and effect of the contract, unless it is acconi 
 panied by evidence of imposition or undue influence. Ibid. 
 
 § 2. Drunltenness. — The court instructs the jury, as a matter 
 of law, tliat to render a transaction voidable on account of the 
 drunkenness alone of a party to it, it should appear, from the
 
 CONTKACTS. 117 
 
 evidencG, tliat lie was so drunk as to have drowned his reason, 
 niemoi-y and jiid^-nicnt, and impaired liis mental faculties to an 
 extent that would render him wholly idiotic for the time 
 being. Bates vs. Ball, 72 111., lUS; Cavender vs. WadduKj. 
 ham, 5 Mo. A])p., 457; Millei^ vs. Finley, 26 Mich., 249; 
 Johnson vs. Pldfer, 6 JSTeb., 401. 
 
 If you believe, from the evidence, that the ])laintiff procured 
 intoxicating liquors and influenced the defendant to drink of 
 the same until he became so intoxicated that he lost the 
 rational use of his mental faculties, and so that he did not un- 
 derstand what he was doing, and, while he was in this condi- 
 tion, procured his signature to the contract in question, then 
 such contract would be void as against the said defendant, and 
 he is not bound thereby. Mitchell vs. Kingman^h Pick., 431; 
 1 Pars, on Cont., 383. 
 
 § 3. Fraud and Circumvention in Procuring Execution of Con- 
 tract. — If the jury believe, from the evidence, that the defend- 
 ant was induced by the plaintiffs, or either of them, to sign 
 the written contract offered in evidence, by the fi-aud and cir- 
 cumvention of said plaintiffs, or either of them, then such 
 written contract is void as against the defendant, and he is 
 only bound by the actual contract made between the parties, 
 as shown by other evidence in the case. 
 
 If you believe from the evidence that, at the time the con- 
 ti-act was made, the defendant was unable to read writing 
 
 readily and understandingly, and requested the said to 
 
 read the said contract to him (or the said proposed to 
 
 read the same to him), and did so read it to the defendant; 
 and if you further believe from the evidence that the said 
 
 , when reading the said instrument, misread the same 
 
 in any material part, and thus induced the defendant to sign 
 the said contract, when he would not otherwise have done so, 
 this would constitute fraud and circumvention within the 
 meaning of the law, and such contract is not binding on said 
 defendant, and the same is wholly void as to him. 
 
 § 4. Signature Procured by Fraud — Burden of Proof. — If the 
 
 jury believe from the evidence that the defendant signed the 
 (lease) in question, then the covenants on liis part therein con-
 
 148 COKTKACTS. 
 
 tained will be binding upon the defendant, unless tlie jury 
 furtlier'believe from tlrj evidence that he was induced to sign 
 the same bj some fraud practiced on him by the plaintiff; and 
 such fraud must not be presumed by the jury without proof, 
 it must be pi-oved by a pre])onderance of evidence. 
 
 Tou are further instructed, that although you may believe 
 from the evidence that the defendant signed the lease in 
 question without reading the same over, still he cannot release 
 himself from the performance of the covenants therein con- 
 tained, unless you further believe from the evidence that 
 the plaintiff fraudulently induced the defendant to sign said 
 lease without reading it or knowing its contents. 
 
 § 5. Wliat Constitutes a Contract — Assent of Parties. — The 
 
 court instructs the jury, that before there can be a contract 
 between two parties, the minds of the two parties must come 
 together and agree upon all the terms and conditions of the 
 contract; or, as is sometimes said, the minds of the contract- 
 ing parties must meet. 1 Par. on Cont., 475; Baler vs. John- 
 son, Co.^ 37 la., 186; Steel vs. Miller, 40 la., 402; Davidson 
 vs. Porter, 57 111., 300. 
 
 Tou are instructed, that if one person makes a proposition 
 to another, and the latter, without any formal acceptance of 
 the proposition, enters upon the performance of it, and pro- 
 ceeds to avail himself of its benefits, he will be as fully bound 
 as if he had in terms accepted the offer. Miller vs. 21anis, 
 57 111., 126. 
 
 § 6. "What a Contract of Sale. — The jury are instructed, that 
 to constitute a contract of sale of personal propei'ty, for future 
 delivery, the minds of the two parties must meet and agree 
 on the article to be sold, the price to be paid, the terms of 
 the payment, and the time, place and terms of delivery of the 
 property sold, so that each mind assents to all the require- 
 ments of the other; if any one of these matters is left open 
 for furtlier consideration and further settlement, there is 
 no complete bargain. 
 
 § 7. Consideration Necessary to a Valid Contract. — The court 
 instructs the jury, that any promise, for which there is no cou- 
 eideration, cannot be enforced at law.
 
 CONTRACTS. 149 
 
 § 8. What is Consideration. — The court instructs the jury, 
 that whatever works a benefit to the party promising, or what- 
 ever works any loss or disadvantage to the person to whom 
 the promise is made, aUhuugh witliout any benefit to the 
 promisor, is a sufficient consideration to support a contract or 
 agreement. 1 Pars, on Cont., 430; 1 Pars, on N. & B., 175. 
 
 One promise is a good consideration for another promise, 
 and if the jury believe, from the evidence, that at the time of 
 the alleged contract the plaintiff promised and agreed with 
 the defendant tliat he would, etc., and that in consideration 
 thereof the defendant then agreed with the ])laintiff that he 
 would, etc., then one of these promises is a good consideration 
 for the other, and the several agreements are binding upon 
 the respective parties. Dockray vs. Dumi, 37 Me., 442; Keis- 
 ter vs. Miller, 25 Penn. St., 401; 1 Pars, on Cont., 448. 
 
 § 9. New Promise to Perform Legal Obligation. — The court 
 instructs tlie jury, tliat if one party promise another to do 
 what he is already under legal obligation to perform, then 
 such a promise is not a good consideration for a promise by the 
 other party, and a promise by him upon such a consideration 
 is not binding, and cannot be enforced against liim by suit- 
 1 Pars, on Cont, 437; Collins vs. Godefreij. 1 B. & Ad", 950; 
 Early vs. Burt, 68 la., 716; Tucker vs. Vaughn, 23 N. W. 
 Rep., 846. 
 
 § 10. Promise to Receive Part Payment in Full Satisfaction. — 
 
 If the jury believe, from the evidence, that at the time of the 
 alleged agreement interposed as a defense in this case, the de- 
 fendant was indebted to the plaintiff in the sum of (^100), and 
 that tliat indebtedness was then due, then, although the jury 
 may further believe, from the evidence, that the plaintiff 
 promised the defendant that if he would pay ($50) of such in- 
 debtedness within {ten days) from that date^ he would take that 
 as ]iayment in full, and forgive him the balance of the debt; 
 and further, that relying upon that promise, the defendant 
 did, within ten days, pay the said sum of ($50), still such 
 ]iromise on the part of the plaintiff" was without consideration, 
 and void as to him, and he is not bound' thereby. 2 Pars, on 
 Cont, 618; Seymoiir vs. Minturn, 17 Johns., 169; Bryant vs. 
 Brazil, 52 la., 350.
 
 150 COKTRACTS. 
 
 § 11. Partial Payment by Straugei-s. — Though the jury may 
 believe, from the evidence, that, at the time of the alleged 
 agreement for a settlement of the matter in controversy in 
 this case, the defendant was indebted to the plaintiff in the 
 sum of about ($100), and that such indebtedness was tlien due, 
 still, if the jury further believe, from the evidence, that at 
 that time the plaintiff promised the defendant that if he would 
 raise ($50) and pay that sum ou the indebtsdnoss within {ten 
 days) from that date, that he would take that amount as ]^ay- 
 ment in full, and forgive him the balance of the debt; and 
 further, that relying upon that promise, and in consideration 
 thereof {the father of defendant) paid the plaintiff the said 
 sum of ($50,) then such payment by the father forms a good 
 consideration for the promise of tlie plaintiff, and he is b )und 
 thereby. 2 Pars, on Cont., 619; B:)yd vs. IlltchGock, 20 John., 
 76; Kellogg vs. Richards, 14r Wend., 116. 
 
 § 12. Construction of Contracts. — The court instructs the 
 jury, that when parties are making a bargain or entering into 
 a contract, they will be held to nuan and intend just what the 
 language used commonly imports, as ordinarily used in refer- 
 ence to the subject matter of the contract, and not what either 
 party may have secretly intended or meant. Madell vs. 
 Scharlan, QQ Wis., 138. 
 
 Still, if the jury believe, from the evidence in this case, 
 that, at the time of the miking of the alleged contract in this 
 ease, the plaintiff said * * * j^j-id if the jury fui'ther 
 believe, from the evidence, that the defendant understood 
 plaintiff to say * * * and that, acting on that understand- 
 ing, defendant replied * * * this language would not 
 constitute a binding bargain or contract between the parties. 
 Nichols vs. Mercer, 44 111., 250; 2 Pars, on Cont., 494. 
 
 § 13. Contract Motlificd. — If the jury believe, from the evi- 
 dence, that after the making of the written contract, the parties, 
 by parol agreement, modified the same as to the time of ])er- 
 formance, and as to the quality of, etc., to be delivered, and 
 that the plaintiff performed the said contract as so modified, 
 by delivering, etc., then both parties would be bound by the 
 contract as thus modified. Lee Grand Quarry vs. lielchai'd,
 
 CONTRACTS. 151 
 
 40 la., 101; 1 Greenl. Ev., § 303, 304; Cooh vs. Mm'jyhy, 70 
 111., 96; Seaman vs. O'Eara, 29 Mich., Q(S. 
 
 The jury are instructed, that although a sealed contract, 
 while it remains in force and is to he performed, cannot ho 
 shown to have heen changed by parol agiecment, still, a con- 
 tract under seal may be changed Ijy a subsequent verbal agree- 
 ment for the performance of additional work, or the fuinish- 
 ing of additional materials, or for the payment of an additional 
 sum of money, and if the work is subsequently ]:erfoniied, or 
 the material furnished in accordance with the terms of the 
 contract, as thus changed, the change will be binding upon 
 both the parties. Barton vs. Gray, 57 Mich., G22. 
 
 § 14. Right to Rescind Contract for Fraud. — The law is, that 
 if a party is defrauded in a contract by the false and fraudu- 
 lent representations of the other party, he may elect whether 
 he will stand by the contract or rescind it; he may stand by it 
 and recover damages, if any, resulting from the fraud, or he 
 may rescind the contract and recover back what he has paid. 
 ParJcer vs. Marquis, 64 Mo., 38; Watson C. (& M. Co. \q. 
 (Jasteel, 68 Ind., 476; Berrlnger vs. Beecher^ 58 Mich., 557. 
 
 You are instructed, that in order that representations may be 
 regarded as fraudulent, so as to be a ground for rescinding a 
 contract, they must be both false and fi'audulcntly made. If 
 they are made Avith an honest belief of their truth, at the time, 
 they are not fraudulent; but if made recklessly, and without 
 any knowledge or information on the subject calculated to in- 
 duce such belief, and they prove to be untrue, then they are 
 fraudulent within the meaning of the law. Parmlee vs. 
 Adol^h, 28 Ohio St., 10. 
 
 § 15. Right to Rescind for Mistake of Fact. — The court instructs 
 the jury, that where a contract is made under an honest mis- 
 take, as to a material fact affecting the right of the parties, it 
 may be rescinded by the party sought to be charged, upon 
 discovering such mistake; provided, that he is guilty of no 
 want of diligence in not ascertaining what the real facts were. 
 Byers vs. Chapin, 28 Ohio St., 300; 1 Story E(p Jur., § 134; 
 Pars. Cent., 460; Montgomery Co. vs. Am, E. Co., 47 Ia.> 91,
 
 152 CONTEACTS. 
 
 § 16. Notice of Intention to Rescind Mnst be Given, etc. — The 
 jury are instructed, that wlien a person intends to rescind a 
 contract on the ground of fraud, or on the ground of mistake, 
 he must give notice of his intention promptly, and as soon as 
 it can reasonably be done after discovering the facts which en- 
 title him to rescind, or else he will be held to have ratified the 
 contract. 
 
 And in this case, whether the defendant gave the plaintiff 
 notice of liis intention to rescind the contract in question, and 
 whether such notice was given as soon as it could reasonably 
 be done after the alleged discovery of the fact, relied upon as 
 giving the right to rescind, are questions of fact to be deter- 
 mined by tlie jury from the evidence in the case. Parinlee 
 vs. AMj>h, 2S Ohio St., 10; Byers vs. Chapin, 28 Ohio St., 
 300. 
 
 § lY. Rescinding by Mutual Consent. — The Jury are instructed, 
 that all contracts may be rescinded by the consent of all the 
 contracting parties, and this consent need not always be ex- 
 pressed in words. If either party, without rigiit, claims to 
 rescind the contract, the other party need not object; and if he 
 permit it to be rescinded, it will be done by mutual consent. 
 2 Par. on Cont., 678. 
 
 § 18, Rescinding for Non-Performance. — The jury are in- 
 structed, that when one party fails or refuses to perform his 
 part of the contract, with an intention to abandon it, or disables 
 himself Irom ] erforming it, the other party may treat the 
 contract as rescinded. 2 Par. on Cont, 678. 
 
 The court instructs you, as a matter of law, that a contract 
 cannot be rescinded by one of the parties alone, for non-per- 
 formance by the other, unless both can be restored to the con- 
 dition in which they were before the contract was made; and 
 if one of the parties has derived any advantage fi'om a partial 
 perfoi-mance by the other, he cannot hold the benetit of this 
 and rescind as to the residue, on the ground of the other's 
 non-performance. 2 Par. on Cont., 679. 
 
 If you believe, from the evidence, that the plaintiff lias 
 made all the payments called for by the contract read in evi- 
 dence, at the time and in the manner therein specilicd, exccjit-
 
 CONTKAOTS. 153 
 
 ing the last pajnieiit called for, and that when the last 
 payment became due he tendered to the defendant the full 
 amount thei-eof and demanded a deed of the premises ; and 
 further, that the defendant was then unable to convey the 
 premises in question to tlie ])laintifl: by a good and sutiicient 
 deed in fee simple, and clear of all incumbrances, and that he 
 failed and neglected so to do within a reasonable time there- 
 after, then the plaintiff had a right to treat said contract as 
 rescinded, and to sue for and recover back the money so paid 
 by him, with interest thereon at the rate of six per cent, per 
 annum, unless it appears, from a preponderance of the evi- 
 dence, that the parties, by some subsequent agreement, have 
 modified or otherwise waived the terms of said original agree- 
 ment. 
 
 If you believe, from the evidence, that before the time 
 mentioned in the contract for the delivery of the deed, the 
 lands mentioned in the contract had been sold for taxes, and 
 a tax deed, under said sale, delivered and recorded among the 
 land records of this county, then such tax deed would consti- 
 tute an incumbrance on said land, and the plaintiff was not 
 bound to accept the deed from the defendant until such tax 
 title should be released or conveyed to the defendant. 
 
 You are instructed, that under the contract read in evidence, 
 the plaintiff could not call upon the defendant for a deed until 
 the plaintiff had paid or tendered the last payment mentioned 
 in the contract, and unless it appears, from a preponderance 
 of the evidence, that throngh no fault of the plaintiff, and 
 after payment or tender of the entire amount of the purchase 
 money, the defendant, upon demand, has refused or neglected 
 to tender to the plaintiff a deed of the premises in question, 
 the jury should find the issues for the defendant. 
 
 § 19. Partial Performance — Breach of Contract. — The court 
 instructs the jury, as a matter of law, that where two parties 
 enter into a lawful contract upon sufficient consideration, and 
 one of the parties is ready and willing to perform, and makes 
 preparation to perform on his part, but is prevented from per- 
 forming by the other party, the party so ready and willing to 
 perform can recover all damages suffered by him by reason of 
 the default of the other party, iuchiding necessary expenses 
 incurred in making such preparation.
 
 154: CONTKACTS. 
 
 § 20. Hardship will not Excuse Non-Performance. — The jury 
 are instructed, as a matter of law, that where parties enter 
 into a valid and lawful contract for the performance of an act 
 not impossible in itself, then mere hardship, or even subse- 
 quent impossibility of performance, will not excuse a non- per- 
 formance of the contract, unless the impossibility of perform- 
 ance arise from an act of God. 
 
 § 21. AVhat an Act of God. — The jury are instructed, that to 
 make an act of God an excuse for not performing a covenant, 
 or for not complying with the terms of a contract, perform- 
 ance must be impossible by or through any known exercise of 
 human skill or power — something must occur which no ordi- 
 nary skill or precaution could have foreseen or prevented. 2 
 Par. on Cont., 672; Shear vs. ^¥right, 60 Mich., 159. 
 \See Act of God.] 
 
 § 22. Burden of Proving Breach of Contract. — The court in- 
 structs the jury, that to entitle the plaintiff to recover in this 
 case he must prove, by a preponderance of evidence, the con- 
 tract substantially as alleged in the declaration, and, also, the 
 breach of the contract as therein alleged and charged, and 
 unless he has done so, the jury should iind for the defendant. 
 
 The court instructs you, that to entitle the plaintiff to recover 
 in this case, he must prove every material allegation in his 
 declaration by a preponderance of the evidence; he must 
 show, by a preponderance of evidence, that {liere follow the 
 char'ges in the declaration). 
 
 § 23. Contract made on Sunday. — The court instructs the 
 jury, that so far as the law is concerned, parties can make a 
 valid contract as well on Sunday as on any other day. And, 
 in this case, if the jury believe, from the evidence, that the 
 parties did agree, the one to sell the corn and the other to 
 ])archase it, that contract would be binding upon both the 
 parties, although they themselves may have supj^osed that to 
 make the contract binding they would have to meet on some 
 other day to ratify it. Moore et al. vs. Murdoch et al., 26 
 Cal, 514; Richmond y>i. Moore, 107 111., 429. 
 
 Contra: The court instructs the jur}', that all contracts
 
 CON TK ACTS. 155 
 
 made in tliis state on Sunday, tliougli not absolutely void, are 
 voidable, and neither party can be bound to perform such a 
 contract against his will. Meriinether vs. Smith, 44 Ga., 541; 
 Pike vs. King, 16 la,, 49; Peake vs. Conlan, 43 la., 297; 2 
 Pars, on Cont., 757. Gilbert vs. Yachon, 69 Ind., 372. 
 
 § 24. Marriage Contracts, How Proved. — The court instructs 
 the jury, that to prove a contract of marriage an expressed 
 conti'act need not be shown. A mutual engagement may be 
 inferred from constant and devoted attention, gladly welcomed, 
 from reciprocal affection, and the interchange of letters ex- 
 pressive of earnest love. Rockafellow vs. Newcomb, 57 111., 
 186; 2 Pars, on Cont., 62; Royal vs. Smith, 40 la., 615. 
 
 The court instructs you, that the contract to marry may be 
 proved by either positive or circumstantial evidence, and 
 when it is proved, by one or the other mode; unless the evi- 
 dence discloses facts absolving the party from its observance 
 the party must be held liable for its breach precisely as in the 
 case of any other contract. Wrightman vs. Coats, 15 Mass., 1. 
 
 If you believe, from the evidence, that the defendant prom- 
 ised to marry the plaintiff, as alleged in the declaration, then 
 no actual promise of the plaintiff need be shown. Evidence 
 of her preparation for marriage and of her carrying herself as 
 consenting to and approving his promise, if such evidence has 
 been introduced, would be sufficient to establish a contract of 
 marriage between the parties; provided you believe from such 
 evidence that there was a marriage contract between the par- 
 ties. 
 
 A contract of marriage like any other contract may be 
 establislied either by express proof of the agreement or by the 
 proof of circumstances from which it may reasonably be im- 
 ])lied. The ]ilaintiff to maintain an action for a breach of a 
 marriage contract must show not only an express or implied 
 ])romise to marry on the part of the defendant but she must 
 also show by the evidence an ability and a readiness, or an 
 offer to perform on her part; but these conditions also may be 
 inferred by the jury as well as the promise itself from facts 
 and circumstances proved on the trial; provided the jury be- 
 lieve from such facts and circumstances, together with all the 
 evidence in the case, that the plaintiff was able, ready and 
 willing to perform the contract on her part.
 
 156 CONTRACTS. 
 
 § 25. Uuchastity no Defense, "VMien. — Tlie court instructs 
 the jury, that when a party enters into an engagement to 
 marry with a knowledge that the other party is unchaste, he 
 will be deemed to have waived the objection, and cannot 
 afterwards set it up as a reason for his refusal to comply 
 with his promise; but if either party shall be guilty of acts of 
 unchastity subsequent to the engagement, the other party is 
 absolved from the contract, whether such subsequent acts be 
 known to the latter or not. 2 Pars, on Cont., 66; Sprague vs. 
 Craig, 51 111., 288; Denslow vs. Ya7i Ilorn^ 16 la., 476. 
 
 § 26. Desirability of Party Contracting. — The court instructs 
 the jury that in actions of this kind the jury should not take 
 into consideration the desirability of the defendant as a hus- 
 band, nor whether the parties would be likely to live together 
 hai^pily or otherwise; that, in such cases, if there be a breach 
 of promise to marry, the woman loses the husband, not as he 
 might have been, but as he should be, under the circumstances 
 proved. 
 
 § 27. Breach of Promise, How Proved. — The jury aie in- 
 structed, that under a declaration alleging a promise to marry 
 upon request, direct and positive proof of request and refusal 
 are not required; these may be inferred from circumstances, 
 if the jury believe, from the evidence, that the circumstances 
 proved are such as show that what passed between the parties 
 was equivalent to a request and refusal. Southard vs. lioxfonL 
 6 Covven, 254. 
 
 You are instructed that under a declaration charging a 
 promise to marry upon request, or within a reasonable time, 
 such request need not necessarily be made by the plaintiff her- 
 self; and, in this case, if you find, from the evidence, that 
 there was a valid subsisting contract of marriage between the 
 plaintiff and defendant, and that no definite time was fixed by 
 the parties in the contract, then the law would presume a con- 
 tract to marry within a reasonable time; and if you further 
 believe, from the evidence, that after the expiration of a rea- 
 sonable time from the making of said contract, and before the 
 commencement of this suit, the plaintiff herself, or any one 
 authorized by her for that ]»urpose, called upon the defendant
 
 CONTKACTS. lo i 
 
 and requested him to marry tlic ])Iaintiff, and that ho refused 
 and neg'lccted to do so, then yon should find the issues for the 
 plaintiif. 
 
 And the court further instructs you that if they believe, 
 from the evidence, that the father of the plaintiff, acting for 
 her, for that purpose, called ujion the defendant and requested 
 him to marry the ]ilaintift', you may infer his authority to do 
 so from his relationship to the plaintiff, and such request is as 
 effectual for the purposes of this suit as though made by the 
 plaintiff" herself. 
 
 If you believe, from the evidence, that there was a mutual 
 promise of marriage between the psrties, that the plaintiff 
 was able, ready and willing to perform the contract on her 
 part and offered to perform it, and that the defendant abso- 
 lutely refused to perform the contract or that his acts and 
 conduct were such as to denote his refusal and intention not to 
 marry the ])laintiff, then the ])laintiff was not required to re- 
 quest him to marry her or to make a formal offer to marry 
 him to entitle her to recover in this case, unless you further 
 believe from the evidence that the plaintiff consented to annul 
 the contract, or that the defendant was justified in refusing to 
 carry out the same for the reasons set out in the instructions 
 given for the defendant. 
 
 Unless you believe, from the evidence, that the defendant 
 entered into a contract, either expressed or implied, to marry 
 the plaintiff, you nuist find for the defendant, and to entitle 
 the plaintiff to recover she must prove such express or im- 
 plied promise by a preponderance of evidence. 
 
 § 28. Promise Obtained by Fraud. — Although the jury may 
 believe from the evidence that the defendant agreed to marry 
 the plaintiff, still, if they further believe, from the evidence, 
 that defendant's consent to such mai-riage was obtained by 
 fraud, then the defendant would not be bound by such promise. 
 In determining the question of fraud it is proper for the jury 
 to cons'der the evidence tending to show plaintiff's repre- 
 sentations as to her previous character, and as to whetlier she 
 had always been a single woman, if you find from the evidence 
 that such representations were made to the defendant, that 
 they were made for the purpose of inducing defendant to
 
 158 CONTRACTS. 
 
 enter into sncli contract and that be was induced thereby to 
 enter into the same. 
 
 § 29. Offer to Perform not Necessary, When. — The jury are 
 instructed, that, if they believe, from the evidence, that there 
 was a valid contract for marriage between the plaintiff and 
 defendant, as charged in the declaration, and that, while such 
 contract was neither forfeited nor annulled by the plaintiff, 
 the defendant married another woman, then the plaintiff need 
 neither allege nor prove an offer to perform on her part ; the 
 law does not require a useless act. 
 
 You are instructed, that a promise to marry, without any 
 specified time for such marriage being mentioned, is, in law, a 
 jiromise to marry within a reasonable time; and if you be- 
 lieve, from the evidence, that such a contract for marriage 
 existed between the parties to tliis suit, as is alleged in the 
 
 count of the declai-ation, and that a reasonable time had 
 
 elapsed since the making of such contract, and before the 
 commencement of this suit, and that the defendant unjustifi- 
 ably failed on his part to fulfill such contract, or has married 
 another woman, then you should find the issues for the plaint- 
 iff ; and in case of the marriage of the defendant the plaintiff 
 need nut show a request to him to perform his part of his 
 contract with her. 
 
 § 30. Subscription Paper. — The court instructs the jury, 
 that where money is promised to be paid upon a subscription 
 paper, and the promise is based upon the fulfillment of certain 
 conditions, or the performance of certain work, or the attain- 
 ment of certain objects, set forth in the instrument subscribed, 
 then the performance of the conditions, or the labor, or the 
 attainment of the object, is sufficient consideration to support 
 the promise to pay. McCahe vs. O* Connor ^ 63 la., 134. 
 
 And in such a case, it is not necessary that the parties 
 named in the instrument should themselves perform the con- 
 ditions; it is sufficient if, upon the faith of the subscription, 
 tlie condition has been performed by some one. 1 Pars, on 
 Cont., 452; Congrerjational Society, etc., vs. Perry, 6 N. II., 
 1G4; Miller vs. Ballard, 46 111., 377; State, etc., vs. Cross, 9 
 Yt., 289.
 
 COJSTKACTS. 159 
 
 If you believe, from tlie evidence, that the defendant signed 
 the subscription paper introduced in evidence, and that the 
 ])laintiff, on the faith of that subscription, went on and (built 
 the ehurcli) and became personally liable for the cost thereof, 
 and that the defendant has not paid his subscription or ^/"O 
 rata share thereof, you should find the issues for the plaintiff. 
 Pryor vs. Cain, 25 111., 292. 
 
 If you believe, from the evidence, that the defendant at- 
 tended a public meeting in the town of , called for the 
 
 purpose of adopting measures for {huilding a church) by 
 private subscription, and that at that meeting the defendant 
 and others publicly announced what they would severally give 
 toward the undertaking and that the defendant then promised 
 that he would give % to have the said undertaking accom- 
 plished, and that tlie plaintiff, relying upon said promises so 
 made by the defendant and others, went on and ]ierformed 
 labor, or expended time and money, and completed the said 
 
 , then said defendant would be liable in this action; if 
 
 you find, from the evidence, that he has not paid the amount 
 so promised by him, then you should find for the plaintiff. 
 Wilson vs. McClure, 50 111., 366. 
 
 The court instructs you, that in this class of cases, if all the 
 money subscribed was necessarily expended in securing tlie 
 end designed, the several subscribers, if liable at all under the 
 evidence, are liable for the full amount subscribed, less such 
 sums as they have already paid thereon; but if the evidence 
 shows that an amount less than the amount subscribed was 
 necessarily expended, then the recovery should be Hmited to 
 i\\Q pro rata share of the amount necessarily expended, less 
 the sums, if any, already paid. Miller vs. Ballard, 46 111., 377. 
 
 § 31. Composition Agreement Void — Fraud. — On effecting a 
 composition agreement, the law demands the utmost good 
 faith on the part of the debtor. He cannot be pernn'tted to 
 induce a creditor to accept a part of a debt in lien of the 
 v/hole, by ])retending to be insolvent, when, in fact, he is not 
 so, and thereby defraud his creditors out of a portion of their 
 just debts. 
 
 Where a composition agreement is made, the debtor pro- 
 fesses to deal with all the creditors who enter into it, on terms
 
 160 CONTEACTS. 
 
 of perfect equality, and if at the same time lie has a secret 
 agreement with one of the creditors, which gives him an 
 undue advantage, this is a fraud upon the other creditors, 
 wiiich vitiates the composition agreement, and in such case a 
 creditor, althoagh he may have received the am jimt named 
 in the composition agreamjnt, may sue for and recover the 
 full amount of his original demand, less the amount received 
 under the composition agreement. Hefter vs. Cahn^ 73 111., 
 296. 
 
 In this case, if you believe, from the evidence, that for the 
 purpose of inducing any of his creditors who have signed the 
 composition agreement, to sign the same, the said defendant 
 made any secret or private agreement with such creditor, or 
 any of them, by which they were to receive more, or obtain 
 any advantages, other than as specified in such agreement, and 
 that the said plaintiff, when he signed the same and received 
 his dividend thereunder, had no knowledge of such secret 
 agreement, these facts would render the same agreement 
 fraudulent and void as to him, and he would have the right 
 to sue for and recover the full amount of liis original demand, 
 less the amount received under the composition agreement. 
 
 And in this case, if you believe, from the evidence, that at 
 or about the time that the plaintiff signed the composition 
 agreement in question, the defendant stated and represented 
 to the plaintiff tliat {a7iy matter as to his jpecunianj condition) 
 for the purpose of inducing the plaintiff to sign the said agree- 
 ment, and that the said plaintiff believed such statements and 
 representations to be true, and was thereby induced to sign the 
 said agreement; then,if you further believe, from the evidence, 
 that the said statements and representations were not true, and 
 that the defendant, at the time they were made, knew they 
 were not true, then the plaintiff would not be bound by the 
 said agreement, and he would have a right to sue for and 
 recover the full amount of liis original claim, less the amount 
 received under the composition agreement. Arnistrong vs. 
 M. N. Bank, 6 Biss., 520; El felt vs. Snow, 2 Sawyer, 91. 
 
 § 32. Sale of Porsonal Property — Future Delivery. — If the 
 
 jury believe, from the evidence, that in the winter of 1879 
 the defendant sold to the plaintiff', and the jjlaintiff" imrchased,
 
 CONTRACTS. 161 
 
 tlie best sixty head of cattle out of defeTidant"'s herd, that lie 
 was then feeding, to be delivered to the plaintiff between the 
 1st and the 13th of the following March, the plaintiff, on 
 such delivery, to pay therefor six cents per pound, gross 
 weight, of said cattle; and if the jury further believe, from 
 the evidence, that during the month of February the defend- 
 ant sold and delivered to another person twenty head of cattle 
 so sold, and thus put it out of his power to comply with his 
 said agreement, and that plaintiff was ready and willing to 
 take and pay for the cattle so purchased by him at the time 
 stipulated in said contract, and that the plaintiff' has sustained 
 damages from defendant's failure to deliver the cattle as 
 agreed, then the defendant is liable to the plaintiff" in this 
 action, and the measure of damages is the difference, if any, 
 between such contract price and what the cattle were worth at 
 the time and place when and where they were to have been 
 delivered by the terms of the contract. 
 
 If you believe, from the evidence, that in the fall of 18 — , 
 the defendant made a contract with the plaintiff for the sale 
 and delivery to him of one thousand bushels of number two 
 wheat, at $ — ]^er bushel, to be delivered at plaintiff's place of 
 business, in the city of S., at any time during the then next 
 month of April, whenever the plaintiff should demand the 
 same, the price to be paid as the grain was delivered; and fur- 
 ther, that during the said month of April, the plaintiff" de- 
 manded of the defendant the delivery of said wheat, and was 
 then ready and willing to pay for the same as fast as it should 
 be delivered, and that the defendant refused or neglected to 
 deliver the grain in accordance with such demand; and if you 
 further believe, from the evidence, that at the time of such de- 
 mand the market price of such wheat at the said city of S. was 
 more than the said agreed price, then you should find for the 
 plaintiff. jSleicfer ys. Wallham?i, 45 IU., 4:3. 
 
 § 33. No Demand Need be Made, AVheii, — If the jury believe, 
 from the evidence, that the defendant made with the plaintiff' 
 the agreement set out in either count of the plaintiff's declara- 
 tion, and that before the time for the delivery of the cattle the 
 defendant put it out of his power to comply with said agree- 
 ment, on his part, then it was unnecessary for the plaintiff to 
 11
 
 162 CONTRACTS. 
 
 make a demand for the cattle in order to fix the defendant's 
 liability; provided, it further appears, from the evidence, that 
 the plaintiff was ready and willing to take and pay for the 
 cattle, at the time and place agreed npon. 
 
 § 34r. Only Act of God, or Public Enemies, will Excuse Non- 
 Performance. — The court instructs the jury, that where a person 
 makes a contract to do a thing which is in itself possible to be 
 done, he will be liable for a breach of such contract, notwith- 
 standing it was beyond his power to perform it. WalJxier vs. 
 Tucl-er, TO 111., 527. 
 
 The court instructs you, as a matter of law, that where a 
 person contracts to sell stock (grain or other personal property), 
 and deliver the same at a specified place, upon a specified day, 
 inclemency of the weather, bad condition of the roads, sick- 
 ness, or other unforeseen contingency, furnishes no excuse for 
 the non-performance of the contract, unless it be expressly so 
 provided in the contract. Kritzinger vs. Sanborn, 70 111., 146. 
 [See Act of God.] 
 
 § 35. Plaintiff Must Show Readiness to Perform. — The court 
 instructs the jury, as a matter of law, that in a suit by a pur- 
 chaser of articles of personal property, to be delivered to him 
 at a certain time and place, in order to recover damages for 
 non-delivery, it is necessary for the plaintiff to prove that he 
 was ready and willing to receive and pay for the same at such 
 time and place. Kritzinger vs. Sanlorn, 70 111., 146. 
 
 If you believe, from the evidence, that the defendant made 
 with the plaintiff such a contract for the delivery of grain, as 
 is set forth in either of the counts of the plaintiff's declara- 
 tion, and that the plaintiff' was ready and willing to receive 
 such grain and pay for tlie same, as stated and alleged in such 
 count; and if you further believe, from the evidence, that the 
 defendant failed to perfoi-m his ])artof the contract, as alleged 
 in the same count of the declaration, without fault on the part 
 of the plaintiff, then the defendant is liable in damages for 
 such breach of the contract on his part, if any damages have 
 been thereby sustained by the plaintiff. 
 
 And, in such case, the measure of damages is the difference 
 between the contract price and the market value of the same
 
 CONTKACTS. 163 
 
 grain at the time and place where it should have been deliv- 
 ered under the contract. Metz vs. Albrecht, 52 111., 491. 
 
 The court instructs you. that while in a suit by a purchaser 
 of personal property, to be delivered at a certain time and 
 place, it is necessary, in order to recover damages for non- 
 delivery, for the plaintiff to prove that he was ready and will- 
 ing to receive and pay for the property at such time and p^acs, 
 stiLl, it is not necessary that these facts should be proved by 
 direct testimony thereto; they may be proved by the facts 
 and cii'cumstances appearing in evidence on the trial, if they 
 are of a character to satisfy the jury that such was the case. 
 
 When, by the terms of a contract, the two acts of soiling 
 and delivering, and receiving and paying, are to be done at 
 the same time, then, in an action for non-delivery, it is only 
 necessary for the plaintiff to show that he was ready and will- 
 ing to receive the property and pay for it at the time and place 
 agreed upon, and this may be proved by the facts and circum- 
 stances appearing in evidence on the trial, if they are of such 
 a character as to satisfy the jury that the plaintiff was so ready 
 and willing to take and pay for such property. 
 
 § 36. Tender of Performance. — The jury are instructed, that 
 if one party to a contract is able and ready, and offers to per- 
 form the agreement on his part, but is prevented from per- 
 forming by the other party, then such offer will be treated as 
 excusing non-performances by the party offering, and he may 
 recover the damages, if any, sustained in consequence of not 
 being allowed to perform on his part. 
 
 § 37. Custom and Tisane Enter Into and Form Part of a Con- 
 tract. — The court instructs the jury, as a matter of law, that 
 when a contract is entered into, the parties are supposed to 
 have reference to the known usages and customs which enter 
 into and govern the business or subject matter to which the 
 contract relates, if there are any such usages and customs, 
 unless such presumption is rebutted by the agreement itself. 
 
 Such customs as are universally known to exist, enter into 
 and form a part of every contract to which they are applicable, 
 although they are not mentioned^or alluded to in the contract. 
 2 Pars, on Cont., 636; Hughes vs. Stanley^ 45 la,, 622; Page
 
 164 COKTEACTS. 
 
 VS. Cole, 120 Mass., 37; Carter vs. Phila. Coal Co., 77 Penn. 
 St., 286; Castleman vs. /X J!/. Ins. Co., 14 Bush., 197. 
 
 Altliougli the usages of trade cannot be set up to contra- 
 vene an established rule of law, or to vary the terms of an 
 exjiress contract, yet all contracts made in the ordinary course 
 of business, without particular stipulations to the contrary, are 
 presumed to be made in reference to the usages and customs 
 of such trade, if any such exist. Loiiergan vs. Stewart, 55 111., 
 44. 
 
 A usage of trade, in order to be binding upon the parties, 
 must be generally known and established among those who aie 
 engaged in the business where the usage is claimed to exist, 
 and so well settled and so uniformly acted upon as to raise a 
 fair presumption that it was known to both the contracting 
 parties, and that they contracted in reference to it, and in con- 
 formity to it. Lyon <& Co. vs. Culbertson, 83 111,, 33 ; Co^- 
 inan et al. vs. Campbell <& Co., '61 iW., 98; Couch \q. The 
 Watson C)al Cj., 46 la., 17; Bisoh vs. Pollock, 41 Mich., 64. 
 
 The court instructs 3'ou, that a custom, to be binding as 
 such, must be general and uniform in the place or in the 
 branch of business where it is claimed to exist. It must be 
 certain, reasonable, and sufficiently ancient to afford the pie- 
 sumption that it is generally known. Leggat et al. vs. Sands 
 A. Co., 60 III, 158 ; Randall et al. vs. Smith, 63 Me., 105. 
 
 BIIILDING CONTRACTS. 
 
 § 38. Certificate of Arcliitect, etc. — If the jury believe, from 
 the evidence, that the contract read in evidence was made by 
 and between the plaintiffs and defendant and that plaintiffs 
 did the work and furnished the material for the building to 
 the satisfaction of the architects named therein, and that the 
 same was so certified by him, then the verdict should be for 
 the plaintiff upon that contract for the amount due thereon 
 after deducting payments and set-offs allowed by the archi- 
 tects, provided, the jury believe, from the evidence, that there 
 is any amount due thereon, after deducting such payments and 
 set-offs. 
 
 The law is that where a contract for building a house provides 
 that the work shall be done under the direction of an architect
 
 CONTEACTS. 165 
 
 therein named, the price agreed upon to be paid upon his cer- 
 tificate that the, etc., then the certificate of such architect 
 made in compliance with the agreement, is conchisive on the 
 rights of the parties. And if such contract also provides that 
 the architect's opinion, decision and certificate, shall in all 
 matters pertaining to such contract and the erection of such 
 building be binding and conclusive, tlien the certificate of such 
 architect, if made in compliance with such contract, is conclu- 
 sive on the parties, and his decision cannot be vaiied or 
 appealed from unless for fraud or mistake on the part of the 
 architect. 
 
 l^OTE. — The necessity for producincr the architect's certificate may be 
 waived. Hay den vs. Coleman, 73 N. T., 567. 
 
 By the terms of the contract introduced in evidence the 
 plaintiffs were to do the brick work and plastering on the de- 
 fendant's building therein mentioned under the superintend- 
 ence of the architect therein named, and payments were to be 
 made upon estimates by such architect, from time to time, as 
 the work should progress, not exceeding eighty-five per cent, 
 upon the work done, and when all the work should be done 
 and completed and so certified to by the architect, then the 
 whole amount of the contract price or balance thereof unpaid, 
 sliould be ]mid, and in order to entitle the plaintiffs to recover 
 for any final balance under such contract or for any additional 
 work done under the direction of such architect under the 
 provision of the contract, it is incumbent upon the plaintiffs 
 to prove that such final certificate was issued by the architect 
 and that the same had been presented to the defendant and 
 imyment thereunder demanded. Schenke vs. Rowell^ 7 Daly 
 (K T.), 286; Sullimn vs. Byrne, 10 S. C, 122.
 
 CHAPTER XVI. 
 DIYORCE. 
 
 Sec. 1. Residence and desertion. < 
 
 2. Husband has the right to select the residence. 
 
 3. Provocation for the wife leaving — Abusive language. 
 
 4. Separation by mutual consent. 
 
 6. Absence alone not proof of desertion. 
 
 6. Separation by mutual consent — Desire for reconciliation. 
 
 7. Grounds of desertion by wife. 
 
 8. Adultery excuse for desertion. 
 
 9. Cruelty as an excuse for desertion. 
 
 10. Acts of cruelty must be apprehended at the time. 
 
 11. Adultery as a ground for divorce. 
 
 12. Adultery must be proved. 
 
 13. Extreme and repeated cruelty, ground for divorce. 
 
 14. Drunkenness and threats. 
 
 15. Personal violence must be shown. 
 
 16. Personal violence not necessary, in some States. 
 
 17. Acts of cruelty must be repeated. 
 
 18. Acts of cruelty must be recent. 
 
 19. Reason for cruelty must exist when the bill is filed. 
 
 20. Acts of cruelty provoked by complainant. 
 
 21. Cruelty provoked by a refusal to cohabit. 
 
 22. Hysteria. 
 
 23. Complainant laboring under a delusion. 
 
 24. Burden of proof. 
 
 25. Condonation. 
 
 Note. — The following instructions, relating to the subject of divorce, 
 have been prepared m.ore especially with reference to the statute of Illinois 
 relating to divorce and the decisions under that statute; but, with very 
 slight changes, they can generally be adapted to the laws of most of the 
 other states. 
 
 § 1. Residence and Desertion. — The jniy are instructed, tliat 
 m law the domicile of the husband is that of the wife, and 
 her residence follows that of the husband. When a husband 
 acquires a new home, it is the duty of the wife to ^o with 
 him, and if she refuses, without justification, for two years, 
 the husband will be entitled to a divorce. Kennedy vs. Ken- 
 nedy, 87 III., 250; Hunt vs. Hunt, 29 N. J. Eq., 96. 
 
 (166)
 
 DIVOKCE. 167 
 
 § 2. Husband has the Right to Select the Residence. — That the 
 husband has the right to select his domicile, and to change 
 his residence, and it is the duty of the wife to accompany 
 liim, and if she refuses without some good and justifiable 
 cause, as explained in these instructions, he will not be guilty 
 of deserting his wife by selecting and going to a new home 
 and leaving her behind. Bcibhit vs. Babbit, G9 111., 277; 1 
 Bishop onM. and D., § 78S; Ashbaugh vs. Ashbaugh, 17 111., 
 476. 
 
 § 3. Provocation for the AVife Leaving — Abusive Language. — 
 
 That while the statute has not made abusive language, and the 
 application of coarse and vulgar epithets, a cause for divorce, 
 yet such conduct on the part of the husband toward his wife, 
 and charging her with a want of chastity without cause, if 
 proved, is sufficient to justify her in abandoning him, and in 
 living separate and apart from him. Bishop on M. and D., 
 § 726. 
 
 You are instructed, that the only ^juestion presented by the 
 issues in this case is, whether or not complainant and defend- 
 ant were living together as husband and wife, at, etc., on, etc., 
 and whether or not, at that time, the defendant willfully, and 
 without just or reasonable cause, deserted the com])lainant 
 and his iiome, and has willfully remained absent therefrom, 
 without just and reasonable cause, for the space of two years 
 prior to the filing of the complainant's bill in this case. 
 
 § 4. Separation by Mutual Consent. — The jury are instructed, 
 that where a husband and wife, by mutual consent, agree to 
 separate and live apart, and, pursuant to such agreement and 
 consent they do live separate and apart from each other, this 
 will not constitute such a desertion as is required under the 
 statute as a ground for divorce. Cox vs. Cox., 35 Mich., 461; 
 1 Bishop on M. and D., § 7b3. Seller vs. Beller, 50 Mich., 
 49. 
 
 § 5. Absence Alone not Proof of Desertion.— The jury are in- 
 structed, that absence alone does not constitute desertion. To 
 constitute desertion, within the meaning of the law, there 
 must not only be absence, but this must be coupled with
 
 ] 68 DIVORCE. 
 
 an intention, on the part of the party chari^ed, to desert and 
 ]iermanently abandon the otlier party; and in this case, if the 
 jury find from the evidence, that when the defcDdant left this 
 state, he went away with the intention of providing another 
 home for himself and wife, and of afterwards sending for her, 
 or of returning and taking her with him to his new home, this 
 would not amount to a desertion, although continued for more 
 than two years. Swan vs. Swan, 15 ISTeb., 453. 
 
 And in such case, before the comj)lainant will be entitled to 
 a divorce on the ground of desertion, the jury must further 
 believe, from the evidence, that after defendant left he changed 
 liis mind, and then determined not to come or send for com- 
 plainant, but did intend, from that time, to desert and abandon 
 her, and that such change or intention occurred two years or 
 more before the commencement of this suit. 1 Bishop on M. 
 and D., § 783. 
 
 § 6. Separation by Mutual Consent — Desire for Reconciliation. — 
 
 Although the jury may bijlieve, from the evidence, that at one 
 time the parties to this suit separated, by mutual consent, still, 
 if the jury further believe, from the evidence, that afterwards 
 the complainant desired to renew her marriage relations with 
 the defendant, and in good faith sought a reconcih'ation, and 
 expressed a desire to have him return and live with her, and 
 that lie refused to accord to that request, then, from that time, 
 defendant's absence, if proved, would constitute a desertion, 
 and if continued for a period of two years, without justifiable 
 cause, as explained in these instructions, would be good ground 
 for a divorce in favor of complainant. 1 Bishop on M. and 
 D., § 786. 
 
 Although you may believe, from the evidence, that some 
 time about, etc., defendant professed a desire to be reconciled 
 to complainant, and requested her to return and live with him, 
 still, if you further believe, from the evidence, that this 
 request was coupled with the qualification or condition that, 
 etc., such a qualification or condition was one that complainant 
 was under no obligation to assent to, and such an offer, if 
 proved, can not avail the defendant anything in this suit. 1 
 Bishop on Mar. and Div., § 786.
 
 DIVORCE. 169 
 
 § 7. Grounds of Desertion by Wife. — The jury are instructed, 
 that adultery on the part of the liusband, if known to tlie 
 wife (or extreme and repeated cruelty, or habitual drunJienness 
 for the jperiod of two years), if proved, is a good and sufficient 
 cause to justify a wife in leaving her husband and living sepa- 
 rate and apart from him. Schouler's Duni. Rel., 90; Stevens 
 vs. Story, 43 Yt, 327; Hancock vs. Meirick, 10 Cush., 41; 
 Rea vs. DurJcee, 25 111., 503. 
 
 § 8. Adultery Excuse for Desertion. — The jury are instructed, 
 that adultery ought not to be presumed, without proof, but 
 it should be clearly established by a preponderance of the evi- 
 dence in the case; and unless the Jury believe, from the evi- 
 dence in this case, that the complainant did, prior to defend- 
 ant's leaving him, or during her absence, commit adultery, 
 then the defendant was not justified in leaving complainant 
 and remaining absent from him for the space of two years — 
 "if the jury believe, from the evidence, that she did so leave 
 and remain absent — simply because of any suspicions of adul- 
 tery which she may have entertained, in respect to her hus- 
 band and {these women, or either of them). 
 
 You ai-e instructed, that if you believe, from the evidence, 
 that at the time defendant left complainant — if you believe, 
 from the evidence, slie did so leave, as charged — complainant 
 was the head of a family consisting of, etc., and continued to 
 live with juch family, then he had a perfect right to employ a 
 housekeeper during that time, and to associate with her in all 
 ways that are usual with men and virtuous females, and to 
 visit his neighbors and female acquaintances ; and these facts 
 alone, if proved, would afford no evidence that he was guilty 
 of adulter}^ with such persons. 
 
 § 9. Cruelty as an Excuse for Desertion. — The court instructs 
 the jury, as far as relates to the alleged acts of cruelty, that if 
 they believe, from the evidence, that the defendant did leave 
 the comijlainant, and remained away from him, as charged in 
 the bill, then to justify such leaving and absence, upon the 
 ground of cruel treatment, the jury must believe, from the 
 evidence, that the complainant actually committed an act, or 
 acts, of personal violence to the person of the defendant,
 
 170 DIVOECE. 
 
 prior to the time of the alleged desertion; and that abusive 
 language, or violent sallies of passion, is not such violence as 
 will justify desertion, if desertion has been proved; nor would 
 threats of violence justify the alleged desertion, if it has been 
 proved, unless they were made under such circumstances as 
 would justify a reasonable apprehension of bodily injury in 
 case she remained. Bishop on M. and D. § 795, et seq. 
 
 You are instructed, that such cruelty as would authorize a 
 jnarried woman to leave the house and home of her husband, 
 must be acts of phj^sical violence inliicted by him upon her 
 person; or such demonstrations or threats of actual violence, 
 made by hira toward her, as would induce a well-grounded 
 fear in a reasonable mind that such violent injuries would be 
 inflicted upon her by her husband in case she remained. Car- 
 ter vs. Carter, 62 111., 439. 
 
 § 10. Acts of Cruelty 3Iust be Apprehended at the Time. — With 
 reference to the alleged acts of cruelty, which are claimed to 
 have justified defendant's wife in leaving him, the court in- 
 structs the jury, that it is not material what had formerly been 
 the treatment of his wife by the defendant, if the jury be- 
 lieve, from the evidence, that after all the improper treatment 
 had ceased, she continued to live with him, without complaint 
 or objection ; and if there was no repetition of bad treatment 
 at the time she left, and no reasonable ground to fear or appre- 
 hend such treatment, at the time she left, then the law pre- 
 sumes that the former offenses, if there were any, had been 
 forgiven, and they would not justify her in leaving. 
 
 § 11. Adultery as a Groutul for Divorce. — The court instructs 
 the jury, that on a charge of adultery, as a ground for divorce, 
 a preponderance of evidence is sufficient to establish the 
 charge. It is not required that the jury be satisfied of the 
 truth of the charge beyond a reasonable doubt. Chestnut vs. 
 Chestnut, 88 111., 518. 
 
 § 12. Adultery 3Iust be Proved. — The jury are further in- 
 btructed, that the law does not allow the jury to presume the 
 adultery of the defendant, if the facts or circumstances relied 
 upon to establish it may as well be attributed to an innocent
 
 DIVORCE. 171 
 
 intent or motive as to a guilty one. Blake vs. Blake^ 70 111., 
 61S. 
 
 Where adultery is charged, as a ground for divorce, the act 
 charged is one that tends to degrade the parties, and inflicts 
 great injury upon society, and if the facts shown by the evi- 
 dence may as well be explained u])on the hj^pothesis of inno- 
 cence as of guilt, then you should always adopt the former 
 rather than the latter hypothesis. Cheatnut vs. Chestnut, 88 
 111., 518. 
 
 § 13. Extreme andRepeateil Cruelty as a Ground for Divorce. — 
 
 The court instructs the jury, that the extreme and repeated 
 cruelty required to constitute a cause for a divorce, must be 
 physical harm as contradistinguished from harsh or opprobri- 
 ous language, or even mental suffering. The cruelty must be 
 grave, and subject the person to great bodily harm. Hender- 
 son vs. Henderson, 88 111., 248. 
 
 A single act of cruelty does not constitute sufficient grounds 
 for a divorce. Tiiere must be extreme and repeated cruelty, 
 which must consist in physical violence, and not merely angry 
 or abusive epithets or profane language; angry or abusive 
 words, menaces or indignities do not constitute cruelty, within 
 the meaning of our statute. Embre vs. Emhre, 53 111., 391. 
 
 § 14. Drunkenness and Threats. — If the jury believe, from 
 the evidence, that during the time when defendant is charged 
 with cruelty, he was guilty of drunkenness from time to time, 
 and when intoxicated, was in the habit of making threats of 
 personal violence against the complainant, then these are facts 
 which the jury have a right to consider, in connection with 
 all the other evidence in the case, in determining whether de- 
 fendant has been guilty of extreme and repeated cruelty 
 toward the complainant, and also, whether she had reasonable 
 cause to apprehend bodily harm, or danger to life or limb, at 
 the time she filed her bill in this case. 
 
 If you believe, from the evidence, that the defendant, for a 
 period of two years prior to the beginning of this suit, was 
 frequently and customarily, or habitually given to the excess- 
 ive use of intoxicating drink, and had, during said two years, 
 or more, lost the power or the will, by the frequent indul-
 
 172 DIVOECE. 
 
 geuce, to control his appetite for it, then the defendant is 
 guilty of habitual drunkenness. Richards vs. Richards, 19 
 111. App., 465; Pratt vs. Pratt, 34 Yt., 323; Com. vs. AYMt- 
 7iey, 5 Gray, 85; LudioicTc vs. Com., 18 Penn. St., 174; Mag- 
 aliahy vs. Magahaky, 35 Mich., 210; Mur_phy vs. People, 90 
 111., 59. 
 
 § 15. Personal Violence Must be Shown. — That when a 
 charge of extreme and repeated cruelty is the ground of appli- 
 cation for divorce, unkind treatment, threats of personal vio- 
 lence, abusive language and opprobrious epithets, if proved, 
 without personal violence, do not constitute that degree of ex- 
 treme and repeated cruelty which the law requires, to author- 
 ize a decree of divorce for that cause. 
 
 To authorize a divorce, on the ground of extreme and 
 repeated cruelty, the acts complained of must consist of phys- 
 ical violence, or such as constitute bodily pain and suffering. 
 Mere angry or abusive words, profane language, menaces or 
 indignities, do not constitute cruelty, within the meaning of 
 our Illinois statute. 
 
 § 16. In some States Personal Violence not Necessary. — If the 
 jury believe, from the evidence, that recently before the 
 commencement of this suit the defendant was in the habit 
 of using profane, obscene and insujting language towards 
 the complainant in the presence of her mother and little 
 children (or others) to such an extent as to render her life 
 miserable, then this would constitute extreme cruelty for 
 which our statute authorizes a divorce. Goodman vs. Good- 
 man, 26 Mich., 417; McClung vs. McClung, 40 Mich., 493; 
 Kennedy vs. Kennedy, 73 N. Y., 369. 
 
 That to justify a verdict in favor of complainant actual 
 physical violence need not be proved, provided the jury believe, 
 from the evidence, that there is j-easonable ground to believe 
 that if the complainant is compelled to live and cohabit with 
 the defendant as his wife her life or health will be endangered 
 by his wrongful treatment of her. Black vs. Blaclx, 30 JM^. J. 
 Eq., 215. 
 
 If the jury believe, from the evidence, that the defendant 
 was in the habit before and at the time of the commencement
 
 DIVORCE. 1 ( o 
 
 of this suit of using violent, coarse and abusive language to 
 complainant and subjecting her to aggravating annoyances 
 and humiliating insults to such an extent as to endanger her 
 health or life, then this would be legal cruelty authoi'izing a 
 verdict in her favor. Latliain vs. Latham^ 30 Gratt. (Va)., 307. 
 The jury are instructed that the degree or kind of cruelty 
 tliat authorizes a divorce is any wrongful conduct on the part 
 of the defendant which tends to the bodily harm of complain- 
 ant, or involves danger to her health or life. And although 
 the ]\\Y^ may believe, from the evidence, that the defendant 
 has been in the habit of using angry words and coarse, violent 
 and abusive language towards the complainant, or of subject- 
 ing her to aggravating annoyances or humiliating insults, still, 
 if the jury further believe, from the evidence, that these 
 things merely tended to wound the feelings of the complain- 
 ant, but were not accompanied by any bodily injury or threat- 
 ened danger to life or health, they would not amount to legal 
 cruelty. Henderson vs. Henderson, 8S III., 248; Latham vs. 
 Latham, 30 Gratt. (Ya.), 307. 
 
 § 17. Acts of Cruelty Must be Repeated. — That a single act of 
 cruelty, if proved, does not constitute a sufficient ground for 
 a divorce. There must bo extreme and repeated cruelty, and 
 the acts of cruelty, to authorize a divorce, must be done so 
 recently before the filing of the bill, or under such circum- 
 stances, as to justify the complainant in reasonably apprehend- 
 ing, at the time that the bill is filed, that the acts of violence 
 or cruelty will be rej^eated if she continues to live with the 
 defendant in the relation of husband and wife. And it must 
 also appear from the evidence that the acts of cruelty com- 
 plained of were not provoked by the wrongful acts of the 
 complainant, or if they were so provoked, that they were out 
 of all reasonable proportion to the provocation. 
 
 § 18. Acts of Cruelty Must be Recent. — Even if the jury 
 should believe, from the evidence, that the defendant lias been, 
 at some former time, guilty of extreme and repeated cruelty 
 towards the complainant, still, if they believe, from the evi- 
 dence, that for several years after that, and before the filing 
 of this bill, the parties had lived together as man and wife,
 
 17-i DIVORCE. 
 
 and that defendant's treatment of liis wife, before and at the 
 time of the filing of the bill, was snch that she had no reason- 
 able ground for apprehending a repetition of cruel treatment 
 when the bill was tiled, the jury should find the defendant no,t 
 guilty. 
 
 § 19. Reason to Fear Cruelty Must Exist Wlien Bill is Filed. — 
 
 The court further instructs the jury, that to authorize a verdict 
 in this case for the complainant, the jury must believe, from 
 the evidence, that before and at the time the bill in this case 
 was filed, the treatment of the complainant by the defendant 
 was such as to constitute what the law deems extreme and 
 repeated cruelty: or in case such extreme and repeated 
 cruelty has been pi-acticed before, then sucli a state of facts 
 and circumstances must appear from the evidence as afforded 
 a reasonable ground for the comjilainant to believe that she 
 would, in the future, receive from her liusband such a degree 
 of bodily injury as to render it improper for her to continue 
 to live with him; and unless the jury believe, from the evi- 
 dence, that there was, at the time the bill in this case was 
 filed, reasonable ground for the complainant to appi'ehend 
 such cruel treatment from the defendant in the future, then 
 they should find for the defendant. 
 
 To authorize a divorce, upon the ground of extreme and 
 repeated cruelty, there must be acts or threats made recently 
 before the filing of the bill ; or the circumstances must be such 
 as to raise a reasonable appreljension of bodily hurt, and show 
 a state of personal danger of injury, incompatible with the 
 duties of married life, at tlie time the bill is filed. 
 
 The court instructs you, that the ultimate question for them 
 to decide is, whether, at the time the bill in this case was filed, 
 the defendant had been guilty of extreme and repeated cruelty, 
 and whether, at that time, the complainant had reasonable 
 cause to fear a continuance of such treatment; and in de- 
 termining these questions, the jury should not be influenced in 
 their judgment by any considerations other than such as bear 
 directly On these questions ; the jury have nothing to do with 
 any questions affecting the rights of the parties to property, or 
 their future means or manner of support. 
 
 If you believe, from the evidence, that the defendant had
 
 DIVORCE. 175 
 
 been guilty of cruel treatment towards the complainant, at 
 some considerable time prior to her leaving the defendant, 
 and of the filing of the bill in this case, this fact alone will not 
 authorize a verdict for the complainant; it must also ap))ear, 
 from the evidence, that at the time the comj)lainant filed her 
 bill in this case, she had reasonable cause to apprehend a 
 repetition of such treatment in the future. 
 
 The courts do not grant divorce on the ground of cruel 
 treatment, as a punishment of oiienses long since committed; 
 when they do grant divorces upon that ground, it is to pre- 
 vent the commission of such offenses in the future. 
 
 § 20. Acts of Cruelty provoked by Complainant. — If the Jury 
 believe, from the evidence, that defendant has been guilty of 
 acts of violence against the complainant, still, if they further 
 believe, from the evidence, that such acts were provoked by 
 complainant's misconduct, then the jury should not find the 
 defendant guilty, by reason of such acts of violence; provided, 
 such misconduct is proven to have existed, and to have been of 
 such character as might be reasonably expected to provoke 
 the acts charged against the husband. 1 Bishop on M. and D., 
 § 764; Skinner vs. Skinner, 5 Wis., 449; Harper vs. Harper, 
 29 Mo., 301, 
 
 The law will not authorize the granting of a divorce, on the 
 gronnd of extreme and repeated cruelty, if the acts com- 
 plained of were inflicted under wanton provocation on the 
 part of the complainant, or if they were only the working of 
 ordinary human passion, brought into exercise by the mis- 
 conduct of the complainant, unless the violence of the defend- 
 ant, in such case, is out of all reasonable propoi-tion to the 
 provocation. 
 
 The law will not permit a person, by her misconduct, to 
 wantonly provoke injury, and make the injury thus received 
 a ground for divorce, unless the injury is out of all reason- 
 able proportion to the provocation. The law considers, in 
 such cases, that the person complaining has the remedy for 
 all ordinary injuries in his own hands, and that there is no 
 occasion to resort to a court of equity. 1 Bishop on ]\L and 
 D., §§ 764 et seq.\ King vs. King, 28 Ala., 315. 
 
 Although the jury may believe, from the evidence, that the
 
 176 DIVOKCE. 
 
 defendant did use force and violence against the complainant, 
 still, if the jury further believe, from the evidence, that 
 complainant was guilty of misconduct of such a cliaracter as 
 might be reasonably expected to provoke such acts of force 
 and violence, and that the complainant pnrposelj incited and 
 provoked such acts of violence with the object and purpose 
 of affording her a pretended gronnd or excuse for com- 
 mencing a snit for divorce, and that such acts of force and 
 violence were not out of reasonable proportion to the provo- 
 cation but were only sncli as ordinarily reasonable men would 
 be likely to employ under similar circumstances, then the jury 
 are instructed that their verdict should be for the defendant. 
 
 § 21. Cruelty Provoked by a Refusal to Cohabit. — The court 
 instructs the jury, that if they believe, from the evidence, 
 that the complainant unreasonably, and without sufficient 
 cause, refused to accoi'd to the defendant the marriage rights 
 of cohabitation, and that the treatment complained of was 
 provoked by such refusal, then the complainant is not entitled 
 to a verdict in this cause, unless it appears, from the evidence, 
 that the injui-ies complained of were out of ail proportion to 
 such provocation. 
 
 The law imposes upon the husband and wife the duty of ac- 
 cording, each to the other, the right of sexual intercourse, to 
 a reasonable extent, unless there be some i^hysical cause render- 
 ing such indulgence improper or unhealthful, and that a with- 
 holding of such right, if proinpted or induced by motives of 
 dislike, or without proper cause, if proved, is such conduct as 
 the jurj' may properly consider in determining whether there 
 was provocation for the cruelty charged or proven. 
 
 § 22. Hysteria. — The court instructs the jury, that if they 
 believe, from the evidence, that at the time that the offenses 
 charged in the bill are alleged to have been committed, the 
 com])lainant was suffering from attacks of hysteria, and that 
 the tendency of that disease is to partially derange the mental 
 faculties, and to blunt the moral sensibilities, and to give a 
 person false and exaggerated views and impressions of what is 
 actually occurring around them ; and if the jury further believe, 
 from t/ie evidence, that the mind of the complainant at these
 
 DIVORCE. 177 
 
 times was so affected, then these facts are proper to be taken 
 into consideration by the jury, in connection with all the other 
 evidence in the case, in determining what degree of credibility 
 should be attached to her testimony relating to the commis- 
 sion of such offenses. 
 
 The court mstiaicts you, that the testimony of the doctors 
 {and the inedlcal worJcs introduced in evidence) is competent 
 and legal evidence of the facts stated {in the hooks) and testi- 
 fied to by the doctors, and should be treated by the jury as 
 evidence in the case, and considered by them in connection 
 with all the evidence in the case in arriving at a verdict. 
 
 § 23. Complainant Laboring under a Delusion. — If the jury 
 believe, from the evidence, that the complainant, before and 
 at the time she commenced this suit, had been, and that she is 
 still laboring under a delusion, that she was and is in danger 
 of bodily hurt from the defendant, and if the jury further 
 believe, from the evidence, that such delusion, if it existed, was 
 unfounded, and that no real cause for such fear on the y^art of 
 complainant existed at the time of the tiling of the bill, or at 
 any time since, and that this suit and the prosecution of it by 
 her are the product of such delusion, then you are instructed, 
 that you should find a verdict for the defendant. 
 
 § 24. Burden of Proof. — The court instructs the jury, that 
 the complainant is bound to establish her case by preponder- 
 ance of evidence; and unless she has done so, the jury should 
 find the issues for the defendant. 
 
 The law requires that the complainant, to entitle her to a 
 verdict, shall establish her case by a preponderance of evidence; 
 and if the jury find the testimony so contradictory, or so 
 evenly balanced, that they are unable to arrive at a satisfac- 
 tory conckision as to the truth or falsity of the charges 
 against the defendant, then the jury should find the issues for 
 the defendant. 
 
 § 25. Condonation. — The court instructs the jury, that in 
 ihe case of condonation, there is an express or implied agree- 
 ment that the party forgiving does so only on the condition that 
 the party forgiven will not repeat the offense, but will, in the 
 12
 
 178 DIVORCE. 
 
 future, perform all the marital duties the relation imposes. 
 Kennedy vs. Kennedy^ 87 111. 250; Sharp vs. /Sharp, IIG 111., 
 509. 
 
 That condonation is foi'giveness n])on condition that the 
 iiijuiy shall not be repeated, and it is dependent ujjon future 
 good usage and conjugal kindness; and it must be free, and 
 not obtained by force and violence or by fraud. 2 Bishop on 
 M. and D., § 33. 
 
 You are further instructed, that condonation of personal 
 acts of violence and cruelty may be avoided by abusive lan- 
 guage, and the use of opprobrious epithets. A wife having 
 forgiven her husband's acts of physical cruelty, may, from 
 the subsequent use of abusive and brutal language, and 
 charges of inlidelity, conclude that it will end as on former 
 occasions, in personal violence, and she is not bound to wait 
 and submit to personal violence. Farnliam vs. J^\irnham^ 73 
 III, 497. 
 
 The court instructs you, that the law is, that if the injured 
 party, husband or wife, cohabits with the other, subsequent to 
 an adulterous offense, the party injured having the ability to 
 prove the fact, it will be a bar to a proceeding for divorce for 
 thatotfense, the offense being considered as thereby condoned; 
 but the court further instructs you, that condonation is always 
 accompanied with the implied condition that the injury shal 
 not be repeated, and that the offending party will thereaftei 
 treat the other with conjugal kindness, or the offense will be 
 revived. Davis vs. Davis, 19 111., 331; 2 Bishop on M. and 
 
 r>., § 43.
 
 CHAPTER XVII. 
 
 EJECTMENT. 
 
 Sec. 1. Only legal titles involved. 
 
 2. One in possession of real estate presumed to be the owner. 
 
 3. Paper title shown by plaintiff. 
 
 4. Right to possession must be shown. 
 
 5. Title can only be conveyed by deed. 
 
 6. Title deduced from a common source. 
 
 7. Both parties claim under "J. W." 
 
 8. Priority of deeds. 
 
 9. Visible monuments control courses and distances. 
 
 10. Boundary on watercourse. 
 
 11. Boundaries a question of fact for the jury, and not for the sur- 
 
 veyor. 
 
 12. Plaintiff's deed by way of mortgage. 
 
 13. Poi^session prima facie evidence of title. 
 
 14. First possessor has the better title. 
 
 15. Deed from party in possession claiming title. 
 
 ADVERSE POSSESSION. 
 
 16. Title by prescription — AVithout color of title. 
 
 17. Must be hostile in its inception. 
 
 18. Permissive possession not hostile. 
 
 19. Possession subservient to the true owner. 
 
 20. Possession presumed to be under legal title. 
 
 21. Paper not necessary. 
 
 22. Possession by successive holder. 
 
 23. Deed not necessary to transfer possession. 
 
 24. Temporary line fence. 
 
 25. Line fence agreed upon. 
 
 26. Division line agreed upon through mistake. 
 
 27. Possession under color of title — Payment of taxes — Illinois. 
 
 28. Burden of proof — Limitation. 
 
 29. What must be shown under limitation law. 
 
 30. What constitutes possession. 
 
 31. Possession of wood lands. 
 
 32. Enclosure by natural objects. 
 
 33. Possession not under color of title. 
 
 34. Possession according to boundaries in title papers. 
 
 35. Notice by possession. 
 
 (179)
 
 180 E.TECTMENT. 
 
 § 1. Only Legal Titles Involved ( W?icre Common Law 
 Rule Prevails). — The court instructs the jury, that in an ac- 
 tion of ejectment it is only the legal rights of tlie parties, as 
 distinguished from their equitable rights, that the jury have 
 a right to consider. In this case, if the plaintiff shows a legal 
 title to the premises in controversy, as explained in the fol- 
 lowing instructions, then no equitable right in the defendant 
 will bar the plaintiff's right of recovery. Tyler on Eject, 30, 
 564; Sifnsys. Gray., ^^ Mo., 613; Dawson vs. Haijden, 67 111., 
 52 ; Buell vs. Irwin., 24 Mich., 145 ; JVkyte vs. Smith, 4 Saw- 
 yer (Oreg.), 17 ; Philljwtts vs. Blasdell, 8 J^ev., 61 ; Kelley 
 vs. HendricJcs, 57 Ala., 193. 
 
 § 2. One in Possession of Real Estate Presumed to be Owner. — 
 Tliat while it is true that, to entitle the plaintiff in ejectment 
 to recover, he must not only show title in himself, but he must 
 also show that he was entitled to the possession of the prem- 
 ises at the commencement of the suit, still, the law is, that 
 the one who shows the better legal title to real estate is always 
 presumed to be entitled to the possession of the | rojerty, un- 
 less the other party shows some valid legal right to the pos- 
 session of the property, as against the true owner. Thompson 
 vs. Burhans, 15 Ilun (K Y.), 581. 
 
 § 3. Paper Title Shown by Plaintiff. — The court instructs the 
 jury, that the deeds and papers introduced in evidence by the 
 plaintiff, in this case, are sufficient to vest the legal title to the 
 whole of the {description 'of the land) in the plaintiff, and to 
 authorize him to take the possession of the whole of that 
 tract of land, as bounded by the government survey lines, un- 
 less the defendant has shown an adverse possession to the 
 same, or to some part thereof, as explained in these instruc- 
 tions, for a period of twenty years or more, before the com- 
 mencement of this suit. 
 
 § 4. Right to Possession must be Shown. — The jury are in- 
 structed, that to entitle the plaintiff to recover in this case, it 
 is not sufficient for him to sliow that he holds the legal title to 
 the premises in controversy; it must further appear, from a 
 preponderance of the evidence, that at the time of the com-
 
 EJECTMENT. 181 
 
 mencomcnt of this suit, the plaintiff was tlicn entitled to tlie 
 possession of the premises. Kilgour vs. GocMey, S3 111., 109 ; 
 Gustln vs. Bamhmn, 34 Mich., 511 ; Lofz vs. Briggs^ 50 Ind., 
 3-46; Williams vs. Murphy, 21 Minn., 534; Sail I'^elipe, etc., 
 vs. Belshaw, 49 Cal., 655. 
 
 § 5. Title Can Only be Conveyed by Deed. — The jury are in- 
 structed, that there is no method known to the law for selling 
 real estate, so as to convey the legal title from one person to 
 another, except by deed, in writing and under seal, executed 
 and delivered by the person holding the legal title, or else 
 executed and delivered by some one authorized, in writing 
 and under seal, by the person holding the legal title, to make 
 such deed for and in the name of such owner. {In some states 
 a seal is dispensed %oith by statute.) 
 
 § 6. Title Deduced from a Common Source. — The court in- 
 structs the jury, as a matter of law, that where both parties, 
 in an action ot" ejectment, claim to derive title through or 
 under the same person, then neither party is bound to show 
 title back of that person, and the one having the better title 
 or right from that common source has the better title for all 
 the purposes of the suit. Miller vs. Hardin, 64 Mo., 545; 
 Sped vs. Gregg, 55 Cal., 198; Morrison vs. Wilkersen, 27 la., 
 374; Cronifh vs. Gore, 38 Mich., 381; Whisetihunt vs. Jones^ 
 78 N. C, 361. 
 
 § 7. Both Parties Claim under "j. W." — The jury are in- 
 structed, that in this case both parties claim title to the land 
 in question by conveyances from one "J. "W.," and the party 
 showing in himself the earlier and better title to the premises 
 from the said J. W. must be regarded by the jury as the legal 
 owner of the premises for all the purposes of this snit. 
 
 That the deed introduced in evidence in this case, from J. 
 W. and wife to the plaintiff, McK., is sufficient to vest the 
 legal title of the premises in McK. from the time it was 
 delivered to him; and the certificate of recording indorsed on 
 the back of said deed is sufficient evidence that the deed was 
 filed for record on the, etc.; and the deed from McK. and wife 
 to R. M. is sufficient to vest a legal title to an undivided half
 
 182 EJECTMENT. 
 
 of tlie premises in qnestion in the said R. ]\I. from the time 
 that deed was made and delivered to him. 
 
 § 8. Priority of Deed-. — The court further instructs the jury, 
 that the deed from J. W. and wife, having been made and 
 delivered to the defendant after the deed from the said J. W. 
 and wife to McK. was recorded, the plaintiffs must be deemed 
 to have the better legal title, so far as their respective titles 
 depend upon the deeds introduced in evidence. 
 
 If you believe, from the evidence, that after McK. hud 
 received his deed, and had had it recorded, the defendant also 
 took a deed for the same land from the said J. "W., and went 
 into possession under that deed, and made lasting and valuable 
 improvements on the land without any authority from the 
 plaintiffs, or either of them, then the taking of such possession, 
 and the making of said improvements, will not affect the 
 plaintiff's right to recover in this suit. Compensation for such 
 improvements, if any ought to be made, will be determined 
 hereafter in future proceedings before this court. 
 
 § 9. Visible Moimments Control Courses and Distances. — The 
 jury are instructed that in determining the boundary line 
 between two tracts of land, if there are visible monuments 
 fixed on the ground and referred to in the deed as marking 
 the boundary, and these can be ascertained, they will control 
 the courses and distances, if the line indicated by the monu- 
 ments differs from tliat called for by the courses and distances 
 given in the deed. Watsortys. Jones, 85 Penn. St., 117. 
 
 § 10. Boundary on "Watercoui-se. — The rule of law is that 
 where two persons own land adjoining, on the same side of the 
 stream or river, and are both bounded by the river, the pre- 
 sumption of law is that each owns to the middle of the stream 
 in front of his own land, and if the shore line dividing their 
 lands does not strike the river at rifjlit anerles to the stream 
 the boundary line from the shore to the middle of the river 
 is determined by extending the division line at the point 
 where it strikes the shore perpendicularly to the general course 
 of the stream opposite that point, that is, running the line 
 from the point wliere it strikes the thore to the nearest point
 
 EJECTMENT. 183 
 
 in the center of the river. ClarJc vs. Campaio, 19 Mich., 325; 
 Bay City G. L. Co. vs. Industrial, etc., 28 Mich., 182. 
 
 The court instructs you, as a m:itter of law, that where a 
 stream of water, such as a river or creek, is the l)ouiidary line 
 between two adjoining owners, and the stream alters its chan- 
 nel from year to year, by a slow, gradual and almost impei'- 
 ceptible wear upon one side and accretion on the other, then 
 the boundary shifts with the channel; but if the stream changes 
 its course visibly and violently, making what is known as a 
 cut-off in higli water, then the boundary does not change with 
 the stream, but it adheres to the original channel. Collins vs. 
 The State, 3 Tex. App., 323. 
 
 § 11. Boniidaries a Question of Fact for the Jury and not for tlie 
 Surveyor. — The jury are instructed that the question in this 
 case is not how would an accurate survey locate these lots in 
 question, but how did the original survey and stakes locat'^ 
 them. The only purpose of the evidence of the surveyors, 
 who have made the recent surveys, is to enable the jury to 
 locate the original boundaries, if possible, and not for the pur- 
 pose of determining where they ought to have been, or where 
 they would have been by an accurate survey. The original 
 starting points and boundaries are questions of fact for the 
 jury to find from the evidence, not only the evidence of the 
 surveyors, but all the other evidence in the case bearing upon 
 these points. Dlehl vs. Zayiger, Zd M.'\.i!\x.,Q01; Steway^t vs. 
 Carleton, 31 Mich., 270; Crwiin vs. Gore, 38 Mich., 381. 
 
 § 12. Plaintiffs Deed by Way of Moi^tgage. — So far as regards 
 this suit, it can make no difference whether the deed to the 
 plaintiff was by way of mortgage to secure the payment of a 
 snm of money or not. If it was so made, it was sufficient to 
 vest the legal title to the premises in McK., and his deed to 
 R. M. was sufficient to vest the legal title to an undivided half 
 of the premises in said M., and these two deeds are sufficient 
 to enable the plaintiff to sustain this action, unless the jury 
 find, from the evidence, nnder the instruction of the court, 
 that the defendant had som3 right to the possession of the 
 property other than such as he acquired by his alleged pur- 
 chase from the said J. W. nnder the deed introduced in evi- 
 dence by the defendant. Dijgen vs. Bird, 55 Ga., 650.
 
 184 EJECTMENT. 
 
 If you believe, from the evidence, that MciK.'s deed was 
 given to him by way of mortgage, or to secure the payment 
 of money, and that since that time the money so secured has 
 ail been i)aid, or settled up, between the parties, these facts 
 alone would not prevent the plaintiff from recovering in this 
 suit; such payment or settlement, if proved, might, in another 
 suit, entitle the defendant to a reconveyance of the land from 
 the plaintiff, but until such reconveyance the plaintiff remains 
 the legal owner of the land. 
 
 Even though you may believe, from the evidence, that the 
 deed from J. W. to the plaintiff ]\IcK. was made by way of 
 mortgage, or to secure the payment of money loaned, that cir- 
 cumstance alone would not affect the plaintiff's right to 
 recover in this case. The deed, though a mortgage, would 
 still be sufHeient to vest the legal title to the land in McK.; 
 provided, the jury find, from the evidence, that J. W. was the 
 owner of the property when he made the deed. 
 
 § 13. Possession Prima Facie Evidence of Title. — The conrt 
 instructs the jury, that in an action of ejectment, prior peace- 
 able possession by the plaintiff claiming to be the owner in fee, 
 if proved, is jprlini facie evidence of ownership and seizin, 
 and is sufficient to authorize a recovery nn^ess the defendant 
 shall showab3tter title. Sherwood vs. St. Paul., etc., lid. Co., 
 2L Minn., 127; B trger vs. Hjohs, 67 111., 592; D.ivis vs. 
 Thompson., 56 Mo., 39. 
 
 A person in the actual peaceable possession of real estate is 
 presumed to be the owner of the fee, until the presumption 
 is rebutted, and he is not required to show in what manner, 
 or by what title, he holds, until the plaintiff shows a better 
 title. Doty vs. Burdiclc, S3 111., 473; Sears vs. Taijlor, 4 
 Col., 38. 
 
 Open, visible and actual possession and occupation of real 
 estate by a person claiming to be ,the owner, is prima facie 
 evidence of title in the person so in possession. The words 
 prima facie evidence, mean evidence sufficient to establish 
 title, unless some person shows a better title. 
 
 If you believe, from the evidence, that for some years 
 before, and up to the time that J. W. delivered the deed of 
 the land in question to the plaintiff McK., the said J. W. was
 
 EJECniENT. 185 
 
 \n tliG actual, open and visible possession and occupation of 
 the lands in question, claiinin;^ to be the owner thereof, this 
 would be sufficient evidence to show title in him at the time 
 the deed was made, and the deed from him to plaintiff, intro- 
 duced in evidence in this case, would be sufficient to vest the 
 title to said- lands in the plaintiff, unless the defendant has 
 shown a prior or better title, as explained in these instructions. 
 
 § 14. First Possessor has the Better Title. — When both par- 
 ties, in an action of ejectment, claim title to the premises by 
 showing simply possession at different times, under claim of 
 ownership, then the first person is deemed to have the better 
 title, unless he delays for an unreasonable length of time to 
 assert his right to the property. MdHin vs. BonsacJt, 61 
 Mo., 556; Clarh vs. Clark, 51 Ala., 198; Liun vs. Eeed, 53 
 Miss., 73; Jones v. Easley, 52 Ga., 454; Southmayo vs. Henley, 
 45 Cab, 101. 
 
 § 15. Deed from Party in Possession Claiming Title. — The 
 court instructs the jury, that if they believe, from the evi- 
 dence, that J. W., before and up to the time of the making 
 of the deed to the plaintiff, was in the actual possession of the 
 property, claiming to own the same, then his deed to the 
 plaintiff was sufficient jpr'ima facie to vest the title in the 
 plaintiff as against the defendant; and if the jury furtlier 
 believe that that deed was recorded in the recorder's office of 
 this county, etc., and, also, tliat after that date the defendant 
 went into the posse.-sion of the land without any right or 
 license from the plaintiff, or from some person authorized by 
 him to give such right or license, then the jury should find the 
 issues for the plaintiff. 
 
 A.DVEESE POSSESSION. 
 
 Note. — As a treneral rule, adverse possession for the statutory period 
 without color of title, will bar a recovery by the person holding the record 
 title. In many of the states, questions connected with the subject of adverse 
 possession, are determined by the presence or absence of color of title; and 
 these distinctions should be borne in mind. 
 
 § 16. Title by Prescription — Without Color of Title. — The 
 
 court instructs the jury, that by the laws of this state, if a
 
 186 EJECTMENT.' 
 
 person goes into the possession of real estate, under a claim of 
 title, and continues in the open, exclusive, and uninterrupted 
 possession of the premises under such claim of title, for the 
 period of {twenty) years, he will be deemed to be true owner 
 thereof. Walbrun vs. Ballen, 68 Mo., 164; Belong vs. Mul- 
 chei\ 47 la., 445. 
 
 If the true and real owner of land permits another to take 
 possession of the land, claiming it as his own, and to continue 
 such possession, openly and publicly, under such claim of title, 
 for a period of {twenty) years or more, such possession will 
 ripen into a right and title in the ])ossessor, and forever after 
 prevent such true owner from taking possession of the prop- 
 erty; but in order to have this effect, the commencement of 
 the possession must have been hostile to the rights of the true 
 owner, and must be continued, openly and publicly, for the 
 full period of {twenty) years, under a claim of ownership, dur- 
 ing all that time. Peterson vs. McCuUough, 50 Ind., 35; 
 Bradley vs. West, 60 Mo., 33; Ambrose vs. Baley, 58 111., 506; 
 Yelverton vs. Seel, 40 Mich., 538; McCarde vs. BarricJclow, 
 69 Ind., 356. 
 
 § 17. Mast be Hostile in its Inception. — The jury are instructed, 
 that adverse possession, sufficient to defeat the legal title, 
 must be hostile in its inception, and continue uninterruptedly 
 for {twenty) years; it must be open, and of such a character 
 as to clearly show that the occupant claims the land as his own 
 and all of these things must be proved by a preponderance of 
 evidence. 
 
 Although you may believe, from the evidence, that one A. 
 B., more than twenty years before the commencement of this 
 suit, built a fence around the land in question {or otherwise im- 
 proved it), this alone does not show adverse possession in him. 
 To constitute adverse possession, it must further appear, from 
 the evidence, that what he did on the land was not with the 
 leave or permission of the owner, but was done under a claim 
 of right in himself, and in hostility to the right of the owner. 
 Russell vs. Davis, 38 Conn., 562; Foster vs. Letz, 86 111., 
 412. 
 
 S 18. Permissive Possession not Hostile. — The jury are in-
 
 EJECTMENT. 187 
 
 striictecl, tliat if a person enter into tlie possession of the lands 
 of another, with the consent of the owner, for any other pur- 
 pose except to claim the land as liis own, such possession alone, 
 no matter how long it is continued, will never bar the right of 
 the owner to take possession of his land when he sees fit to do 
 so. Collins vs. Johnson, 57 Ala., 304. 
 
 § 19. Possession Subservient to the True Owner. — Where pos- 
 session of real estate is taken under a claim consistent with or 
 in subordination to the title of the real owner, nothing but a 
 clear, unequivocal and notorious disclaimer of the title of such 
 owner will render such possession adverse. Tjler on Eject, 
 217. 
 
 § 20, Possession Presumed to be under Legal Title.— The 
 court instructs the jury, that where one person is shown to have 
 the legal title to land, and another p-serson is shown to be in 
 possession of the property, if there is no evidence to the con- 
 trary, the law presumes that such possession has been with the 
 consent of the owner, and not in liostih'ty to his rights; and if 
 the ]ierson in possession sets up a claim to the land by virtue 
 of such possession, the burden of proof is on him to show 
 affirmatively, by a pre]) nderance of the evidence, not only 
 that lie has been in the open, jniblic, and notorious possession, 
 but it must further a]")pear, from the evidence, that sucli pos- 
 session was commenced and continued in hostility to the true 
 owner, and under a claim of right as against him; and tliese 
 matters must be shown by clear and affirmative proof of such 
 facts as show that such possession was taken and continued in 
 hostility to such owner; tliey cannot be made out by inference 
 without such proof. Tyler on Eject., 860. 
 
 The rule of law is that if a person enters npon land witliout 
 any title or claim or color of title, the law will adjudge the 
 possession to be in subservience to the legal owner and no 
 length of such possession will render the holding adverse to 
 the title of the true ownei*. But if a man enters on land with- 
 out title, claim or color of title and he does not, in fact, go in 
 under the true owner, and such person after acquires what 
 he considers a good title, from that moment his possession 
 becomes adverse. Buckley vs. Taggart, 62 In.l., — ; Jaclismi 
 vs. Thomas, 16 Jolmson, 293; Harvey vs. Tyler, 2 Wal., 328.
 
 ISS EJECTMENT. 
 
 §21. Paper Title not Necessary. — It is not essential that a 
 party, who takes possession of lands and holds adversely to 
 the owner, should enter under a deed, or other written title, 
 to cause the limitation of (^?o<?/i?^?/) years to run in his favor. 
 It is sufficient if the party take possession under claim of own- 
 ership, and hold adverse possession, as explained in these 
 instructions, for the period of {twenty) years. Webbei' vs. 
 Andcrsoii, 73 111., 439. 
 
 The court instructs j^ou, that in order to maintain a defense 
 to th!s action, under the twenty years' limitation law, it is not 
 necessary that the defendant had a deed, or other written evi- 
 dence of title; but if, under a claim of title or ownership, the 
 defendant took actual possession of the land in question, and 
 has held actual, notorious and exclusive possession of the 
 land in question for a period of {twenty) years prior to the 
 commencement of this suit, claiming title thereto, then the 
 plaintiff is not entitled to recover. 
 
 The court further instructs you, that when a party enters 
 into the possession of land, which is vacant and unoccupied at 
 tiie time, claiming it as his own, such possession is hostile in 
 its inception to the owner; and when such possession is hostile 
 in its inception, and continues adversely for the period of 
 {twenty) years, and is visible, notorious and exclusive during 
 that period of time, such facts, if proved by the defendant, 
 are a legal defense in an action of ejectment. 
 
 If you believe, from the evidence, that the defendant en- 
 tered upon the land in question, claiming to be the owner, and 
 continuing in the actual, visible and notorious possession of 
 the same for a period of {twenty) years, under a claim of own- 
 ership, then the plaintiff is not entitled to recover. 
 
 § 22. Possession by Successive Holders, — The court instructs 
 the jury, that to constitute adverse possession, as explained in 
 these instructions, for the period of {twenty) years, it is not 
 necessary that the same person should himself have been in pos- 
 session of the premises for the whole of that period; it is suffi- 
 cient if the evidence shows that he and those under whom he 
 holds, either as heir or purchaser, have held such possession 
 for the full period of twenty years. 
 
 You are instructed, that although you may believe, from
 
 EJECTMENT. 189 
 
 the evidence, tliat one A. B. went into possession of the lands 
 in controversy, more than [twenti/) years before tlie com- 
 mencement of this suit, and held the same adversely to the 
 rights of the plaintiii", still the defendant, in this case, cannot 
 avail himself of the possessi(jn of the said A. B., unless it fur- 
 ther appears, from the evidence, that when the defendant 
 took possession of the land, he acquired the rights of the 
 said A. B.j by purchase or otherwise. 
 
 § 23. Deed not Necessary to Transfer Possession. — The jury 
 are instructed, that a deed is not necessary to transfer the pos- 
 session of land held adversely, from one person to another, 
 and when one person succeeds to the possession of another, 
 and it becomas necessary to connect the possession of the two, 
 in order to make the period required by law to bar the 
 owner's rights, the transfer of possession may be shown by 
 parol evidence; in such cases no deed is required. ' Webber 
 vs. Anderson, 73 Bl., 439. 
 
 § 24. Temporary Line Fence. — In this case, if the jury 
 l)elie\-e, from the evidence, that the defendant wrs allowed 
 by the owner of the property in controversy to take posses- 
 sion of it, and to build the division fence off the line, as a 
 matter of convenience to the parties, without any agreement 
 or intention to make that fence the permanent boundary line 
 between their adjoining lands, and that the defendant took 
 possession with the consent of the owner, as a matter of tem- 
 porary convenience, and without any understanding that the 
 property should thereafter belong to the defendant, then such 
 possession, no matter how long continued, will not bar the 
 right of the plaintiff to claim and take possession of the land, 
 if he has otherwise shown liimself entitled to the same. 
 
 If you believe, from the evidence, that the fence in ques- 
 tion, claimed by the defendant to be the line fence between 
 his land and that of the plaintiff, does not stand upon the true 
 survey line between said lands; and if you further believe 
 from the evidence, that the fence was placed where it now is 
 by agreement of the parties, merely for the convenience of 
 working the land, and not for the purpose of marking the boun- 
 daries according to title, then neither party would be bound
 
 190 EJECTMENT. 
 
 by the existence of the fence, as establishhig either an agreed 
 boundary line or adverse possession to the lands in contro- 
 versy. Soule vs. Barlow, 49 Yt, 329. 
 
 § 25. Line Fence Agreed Upon. — The jury are instructed, 
 that it is perfectly competent for parties owning adjoining 
 lands to settle, by agreement, where the division line shall be. 
 
 And, in this case, if you believe, from the evidence, that the 
 plaintiff and defendant owned adjoining tracts of land, of which 
 the land in controversy formed a part, and that they mutually 
 agreed upon the dividing line, and established it as between 
 themselves, and afterwards occnpy according to such line, then 
 it is wholly immaterial where the survey would put the line, 
 as each party would be bound by his agreement. 
 
 And in determining whether there was such an agreement 
 and establishing of the lina, it is competent for you to take 
 into consideration the act3 and statemjnts of the parties, the 
 acts done by each, and the fixing and adjustment of fences, 
 and imorovemants by them, under such alleged agreemant, if 
 any such are proved, togather with all the other evidence and 
 facts an 1 circumstances proved on the trial. Cutler vs. Calli- 
 so)i, 72 III, 113; Tamm vs. Kellogg, 49 Mo., 118; Smith vs. 
 Ilunllton, 20 Mich., 433; Terry vs. Chandler, 16 K Y., 354; 
 Jolce vs. Williams, 26 Mich., 332. 
 
 You are Instructed that the fact, if proved, that a line fence 
 was built on the line clalmjd by the defendant as the agreed 
 line, and that the ]3arties occupied up to the fence for a num- 
 ber of years, would not alone prove that the fence was built 
 iipon the true line, or that that line was established by agree- 
 ment of the parties, or by the persons under whom they hold. 
 In order that that line shall be conclusive upon the parties, 
 the jury must believe, from the evidence, either that the fence 
 was built upon the true line, that the adjoining owners in an 
 honest attempt to fix the dividing line between their lands, 
 agreed upon that line as the boundary line between them, or 
 that the defendant, for twenty years or more, occupied the land 
 in controversy adversely, as explained in these instructions 
 upon that point. Ghajpmin vs. Cooks, 41 Mich., 595. 
 
 § 26. Division Line Agreed upon Through 3Iistake. — The law
 
 EJECTMENT. 191 
 
 is tliat whore parties agree upon a division line between their 
 lands, and they occupy np to such line for a period of twenty 
 years, they will be held to the line so established, although 
 the line be not the true line, and was agreed upon by mutual 
 mistake. Smith vs. 31cKa;/, 30 Ohio St., 409; Yutzer vs. 
 Thomcm, 17 Ohio St., 130; Bader vs. Zeise, 44 Wis., 96. 
 
 The law is that if two adjoining proprietors occupy on the 
 opposite sides, and up to what they both erroneously suppose 
 to he the true dividing line, with no intent on the part of 
 either to claim b.^yond the true line, such possession would 
 not be an adverse possession of the land thus erroneously occu- 
 pied. Houx vs. JBatteen, 68 Mo., 84. 
 
 You are instructed, as a matter of law, that where one of two 
 adjoining land owners has possession for over twenty years of 
 a portion of the other's land, by reason of the division fence 
 not being on the line, such possession will not bar a recovery 
 of the land by the true owner, unless the fence was agreed 
 upon as tlie boundary line, and the possession taken and held 
 in pursuance of such agreement, or unless such possession is 
 adverse to the title of the true owner, as explained in these 
 instructions upon that point. MoNamara vs. Seatoii^ 82 111., 
 468. 
 
 § 27. Possession under Color of Title — Payment of Taxes — 
 Illinois. — The court instructs the jury, that the statute of this 
 state provides that every person in the actual possession of 
 lands, under claim and color of title made in good faith, and 
 who shall, for seven successive years, continue in such pos- 
 session, and shall also, during that time, pay all taxes legally 
 assessed on such lands, shall be held and adjudged to be the 
 legal owner thereof to the extent and according to the pur- 
 port of his paper title; and all persons holding under such 
 possession, by purchase, devise or descent, before said 
 seven years shall have expired, and who shall continue sucli 
 possession, and continue to pay the taxes, so as to complete 
 the same possession and payment of taxes for the said term of 
 seven years, are entitled to the benefit of tlie same statute. 
 
 § 28. Burden of Proof — Limitations. — The jury are instructed, 
 that where a party sets up the statute of limitations to bar an
 
 192 EJECTMENT. 
 
 otherwise legal title, the law holds him to a strict compliance 
 with every requirement of the statute, and if he fails to prove 
 such compliance, the statute will avail him nothing. 
 
 The court instructs you, that the burden of ])roof is upon 
 the party setting up the statute of limitations to bar a 
 recovery by the person holding the paper title to lands, to 
 show affirmatively, by a preponderance of evidence, the pa}'- 
 ment by him, or some one for him, of all taxes legally assessed 
 upon the land, and under color of title for seven successive 
 years; and in this case, if the jury believe, from the evidence, 
 that the defendant has failed to show color of title in himself, 
 or in those under whom he holds, together with payment of 
 all the taxes legally assessed in each and every year for seven 
 successive years, by the person or persons liaving such color 
 of title, then the statute of limitations cannot avail the 
 defendant. 
 
 That when the benefit of the statute of limitations is 
 claimed under color of title and payment of taxes for seven 
 successive years, the party claiming such baneHt must show 
 affirmatively the payment of all taxes legally assessed on the 
 premises in question during said period, and if he fails to 
 show the payment of any such tax, no matter how small in 
 ^amount it may be, the benefit of the statute must fail. 
 
 § 29. "VNHiat Miist be Shown Under Limitation Law. — The court 
 instructs the jury, that three things must concur in oi'der that 
 the statute of limitations, set up by the defendant in this case, 
 may avail as a bar to the plaintiff's right of recovery; pro- 
 vided, you believe, from the evidence, under the instruction 
 of the court, that the plaintiff has shown title, by deed, to the 
 premises in question in himself : 
 
 1st. There must be what is called in law, color of title; or 
 in other words, a conveyance, purporting on its face to convey 
 the title to said premises to the defendant, or to some one 
 under whom he claims. 
 
 2d. The defendant, or some party under whom he claims, 
 or the defendant, together with such person, must have had 
 actual possession of the premises in controversy for the s]iace 
 of seven successive years previous to the commencement of 
 this suit.
 
 EJECTMENT. 193 
 
 3d. That tlie person having the color of title must have 
 paid all the taxes legally assessed against the said premises 
 during said period of seven years; and if the jury believe, from 
 the evidence, that either of these three things are wanting, 
 the statute of limitation cannot avail as a defense. 
 
 The court instructs you, as a matter of law, that, as regards 
 the premises known and described as, etc., the defendant has 
 not shown any conveyance or color of title to himself, or to 
 any one through whom he claims, made seven years before 
 the commencement of this suit; and so far as these premises 
 are concerned, the statute of limitations, set up in this case, 
 cannot avail the defendant. 
 
 § 30. AVhat Constitutes Possession. — The court instructs the 
 jury, that it is not necessary that land should be inclosed with 
 a fence, or that a house should be erected upon, or that it 
 should be reduced to cultivation, to constitute possession of it. 
 Such improvements or acts of dominion over the land, as will 
 indicate to persons residing in the immediate neighborhood, 
 who has the exclusive control and management of the laud, 
 will be sufficient to constitute possession. 
 
 That where land is appropriated to such uses as it is natu- 
 rally fitted for, and the manner in which it is used, by the per- 
 sons claiming title, is such as to notify the public that such 
 person has asserted dominion over it, this will constitute pos- 
 session. IluUbard vs. Kiddo, 87 111., 578. 
 
 § 31. Possession of Woodland. — The jury are instructed, that 
 the rule of law is, that when the land in controversy is a tim- 
 ber lot, and it is exclusively controlled and used to supply a 
 farm in the neighborhood with fuel, or with posts and rails, 
 this will constitute possession, although the land does not join 
 the farm and is not inclosed. 
 
 You are instructed, that actual possession of land may arise 
 in any of the different ways of improving it, and which are 
 open and notorious in their character, and which show an in- 
 tention to appropriate it to some useful purpose, and indicate 
 an exclusive use and control of the property by the person 
 claiming possession. 
 
 The possession of land may be held in different modes — by 
 13
 
 19i EJECTMENT. 
 
 inclosure, bj cultivation, by the erection of buildings or otlier 
 improvements, or in any mode that clearly indicates an ex- 
 clusive appropriation of the property by the person claiming 
 to hold it. Tt'uesdale vs. Ford, 37 111., 2 LO. 
 
 § 32. Inclosure by Natural Objects. — If the jury believe, from 
 the evidence, that a slough on the east side of the premises in 
 question served substantially for the pur])ose of a fence, and, 
 in connection with otlier fences, made an inclosure of said 
 premises, the slough should be considered a fence, and the 
 Held an inclosed held, for the purpose of this trial. JBruma- 
 ghn vs. Bradshaw, 39 Cal., 24, 
 
 The court instructs you that a person may take and hold 
 possession of property by inclosing the same, and for that pur- 
 pose it is not neces&ary that a fence should surround every 
 portion of the land. The boundaries of a portion thereof may 
 be protected by a fence, and the remainder defined and piro- 
 tected by natural objects, such as a lake, a river or other water- 
 course, and such objects, when they are apparent and serve 
 the purposes of a fence, are as effective in defining the limits 
 of possession as a fence. 
 
 § 33. Possession not under Color of Title. — The court in- 
 structs the jury, that where a person claims possession of real 
 estate without a deed or instrument in writing calling for 
 boundaries, his possession will not extend beyond what he has 
 inclosed or actually occupies. JEge vs. Medlaj\ 82 l^enn. St., 
 86; Peterso)iw&. MoCullough, 50 Ind., 35; III. C. Rd. Co. vs. 
 Ind. & 111. G. By. Co., 85 III, 211. 
 
 You are instructed, that when a person has neither title nor 
 color of title to an inclosed tract of land, the fact that he, 
 during several years, cut fire-wood, and made rails from the 
 timber on it for the use of his farm, does not necessarily show 
 actual possession. Such acts, if isolated and only occasional, 
 may as properly be referred to continuous acts of trespass as 
 indicating possession. To constitute possession, such acts 
 should be exclusive and under claim of title. Austin vs. Rnst, 
 73 111., 491; Sepulveda vs. Seinilveda, 39 Cal., 13; Miller vs. 
 L. J. Ed. Co., 71 N. Y., 3.^0; Pullen vs. Hoplins, Lea 
 rTenn.), 741; Williai?is vs. Wallace, 78 K C, 354.
 
 EJECTMENT. 195 
 
 Though you may believe, from the evidence, that the de- 
 fendant went upon the land in question in the spring of, etc., 
 for the purpose of taking possession of the whole tract, and 
 make improvements thereon, claiming the whole tract, still, 
 if the jury further believe, from the evidence, that at that 
 time defendant had no deed, lease or other written evidence 
 of title to the premises, then such possession, in law, is con- 
 fined to the quantity of ground actually taken possession of by 
 the defendant. Humphries vs. Uaffniaii^ 33 Ohio St., 395. 
 
 § 34:. Possession Accojxling to Boundaries in Title Papers. — The 
 court instructs the jury, that where a party has title, or color 
 of title, to woodland, and uses the land for the purpose of ob- 
 taining wood for fuel or fencing, for a farm in the neighbor- 
 hood, under a claim of ownership, this will constitute a pos- 
 session; and so, if a person holding a deed for land, enters and 
 clears off, breaks up or improves a part, with intent to follow 
 up such act with other improvements on the land, this will be 
 a possession of the whole. Wilson vs. Williams, 52 Miss., 
 487; ^cott vs. Delcmey, 87 111., 146; Barger vs. Bobhs, 67 111.^ 
 592; Fugate vs. Pierce, 49 Mo., 441. 
 
 If you believe, from the evidence, that some time on or 
 about, etc., the defendant went onto a portion of the land in 
 controvers}', under his deed, introduced in evidence, and broke 
 up a portion of the land, and that at that time there was no 
 one else in the actual possession of said tract, or any part of 
 it, then such breaking and possession would extend to all 
 the land embraced in his deed. Blancliard vs. Pratt, 37 111., 
 243; Hmnphries vs. Huffman, 33 Ohio St., 395; Lynde vs. 
 Williams, 68 Mo., 360. 
 
 You are instructed, that a party who enters into the posses- 
 sion of real estate, under a conveyance from a person having 
 no title, or under a paper purporting to be a deed, but having 
 no seal, is presumed to enter according to the description in 
 such deed or paper, and his occupancy of a part, claiming the 
 whole, is construed as a possession of the entire tract which 
 the instrument or paper purports to convey. 
 
 The jury are instructed, as a matter of law, that if a person 
 enters upon uninclosed and unimproved land under color of 
 title which describes the extent of his claim by metes and
 
 198 EJECTMENT. 
 
 bounds, and he actually improves and occupies a part thereof 
 adversely to the true owner, claiming the whole tract, this 
 will be held to constitute possession of the whole tract, to the 
 extent of the boundaries in his paper title, although a portion 
 of the tract may not be actually improved or occui)ied by 
 him, provided no other person is in the actual possession of 
 the part not occupied or improved by him. 
 
 § 35. Notice by Possession. — The jury are instructed, that 
 possession under an unrecorded deed, to be notice to subse- 
 quent honafide purchasers, must be open, visible and exclu- 
 sive; and must be such as to apprise the community that the 
 occupant has appropriated the property to his own exclusive 
 use. 
 
 That where a person is in the actual, open and notorious 
 possession of land, claiming to own the same, this would 
 afford notice to the world of all his rights and equities in the 
 same. Siro7ig ys. Shea, 83 111., 575; Fraiikllii vs. JSfewsome, 
 53 Ga., 580. 
 
 That when a party is in the actual, open and visible posses- 
 sion of land, under an unrecorded deed, his possession will 
 afford notice to the world of his rights to the land, whatever 
 they may be, equally with that which would have been given 
 by the recording of his deed. Walde?i vs. Gridlei/, 36 111., 
 523; Sjgitler vs. Scofield, 43 la., 571.
 
 CHAPTER XVIII. 
 
 ESTOPPEL. 
 
 Sec. 1. General rule. 
 
 2. Intention not essential. 
 
 S. Knowinsly permitting another to deal with property as his own. 
 
 4. Representation by the acts of a party. 
 
 5. Representations must be acted upon. 
 
 6. Must be a fraudulent purpose or result. 
 
 7. Injury must be shown. 
 
 § 1. General Rule. — The court instructs tlie jury, that as a 
 general rule, a party will be estopped from denying his own 
 acts and admissions, which were expressly designed to influ- 
 ence the conduct of another, and whicli did so influence it, 
 and when such denial will operate to tlie injury of the person 
 so acting. 1 Greenlf. onEv., § 207; Kinnear vs. MacJ^ey, S."? 
 111., 96; KmxYQ. Clifford, 38 Wis., 651; Allum vs. Ferrij, 
 68 Me., 232; Creque vs, Sears, 17 Hun (N". Y.), 123. 
 
 The court further instructs you, that when a person, by his 
 words or conduct, voluntarily causes another to believe in the 
 existence of a certain state of things, and thereby induces 
 him to act on that belief so as to change his previous condi- 
 tion, the person inducing such belief will be estopped from 
 afterwards denying the existence of such state of things, to 
 the prejudice of the person so acting. People vs. Brown, 67 
 111., 435; Redman vs. Graham, 80 ]Sr. C, 231; Reedy vs. 
 Brunner, 60 Ga., 107; Harden vs. Joice, 2 Kas., 318; Wiii- 
 terinJc vs. Maynard, 47 la., 366. 
 
 That any statement or admission by one person, intended to 
 influence the conduct of another, if acted upon by the latter, 
 will be binding upon the former; and it is a nvitter of no 
 importance whether such representations are made in direct 
 language to the plaintiff himself, or wliether they may be 
 implied from the conduct of the ]iarty sought to be charged; 
 provided, such conduct was intended to influence the actions 
 of tbe other, and did so influence it, to the latter's prejudice. 
 
 (197)
 
 198 ESTOPPEL. 
 
 § 2. Intention not Essential. — The jury are instructed, that 
 to constitute an estoppel, it is not necessary that the party 
 should design to mislead; it is enongh if the act of declara- 
 tion was calculated to, and did, in fact, mislead another to his 
 injury, while acting in good faith and with reasonable diligence. 
 Blair vs. Wait, 69 JN". Y., 113; Mayer vs. Erhardt, 88 III, 
 452. 
 
 § 3. Knowingly Permitting Another to Deal with Property as 
 Owner. — That if the true owner of property stands by and 
 knowingly suffers another to sell his property, under a claim 
 of ownership, and does not give notice of his title to the party 
 purchasing, he will be estopped from afterwards setting up his 
 title to the property. Colwell vs. Brower, 75 111., 516; Car- 
 roll vs. Turner, 54 Ga., 177. 
 
 The jury are instructed, that whenever the circumstances 
 are such as to show that the true owner of property knows 
 tJiat another claims to own his property, and is selling or 
 incumbering it to an innocent party, and he fails to give notice 
 of his title, the law will regard the silence of the true owner 
 as a fraud upon the innocent party, and he will be estopped 
 from afterwards setting np his title to defeat such innocent 
 party. ISebright vs. Moore, 33 Mich., 92; Sheeny vs. Mal- 
 lory, 62 Mo.. 485. 
 
 In this case, although you may believe, from the evidence, 
 that plaintiff was, in fact, the owner of the property in ques- 
 tion, yet, if you further believe, from the evidence, that he 
 voluntarily and knowingly permitted and allowed A. E. to 
 have the possession of the property, and to exercise such acts 
 of ownership over it, and to so nse, manage and control the 
 property as to authorize and justify an ordinarily prudent man 
 in supposing that A. E. was, in fact, the owner of the property; 
 and if you further believe, from the evidence, that the defend- 
 ant, in good faith, bought the property in question from the 
 said A. E., supposing and believing that he was the owner 
 thereof, then the plaintiff is estopped from now setting up a 
 claim to the property on the ground that the said A. E. was 
 not such owner. 
 
 If you believe, from the evidence, that before the making 
 of the mortgage in question, the defendant represented to the
 
 ESTOPPEL. 199 
 
 ]")lainti(T that A. B., tlic mortgagor, was the owner of the horse 
 in question, and that the plaintiff believed such representations, 
 and, relying upon the truth thereof, loaned A. B. money, and 
 in good faith took the mortgage to secure said loan, then it is 
 wholly immaterial whether A. B. was really the owner of the 
 horse or not, as against the defendant, for the reason that he 
 is now estopped from denying such ownership as against the 
 plaintiff. 
 
 § 4. Representations by the Acts of a Party. — That if a person 
 knowingly and voluntarily so conducts himself in relation to 
 his business, as to justify persons dealing with him in suppos- 
 ing and believing that a certain state of facts exist, and such 
 persons do deal with him, relying on that inference and be- 
 lief, the person so conducting himself will not afterwards be 
 permitted to denj'- that such state of facts did exist, to the 
 prejudice of persons acting upon such belief. 
 
 If a married woman is in the possession of property, claim- 
 ing to own and control the same, and on her declaration of own- 
 ership employs a party to make improvements on the same, 
 under the belief that it is her separate propert}^, she will be 
 estopped from denying that she owned it, when sued for the 
 value of the labor performed. Nixon vs. Halley, 78 111., 611. 
 
 § 5. Representation Must be Acted on. — Before a party can 
 be estopped from denying the truth of any statement or ad- 
 mission formerly made by him, the jury must believe, from 
 the evidence, that such statements or admissions have induced 
 the other party to act differently from what lie otherwise 
 would have done, had not such statements or admissions been 
 made, and that to permit such denial would now prejudice the 
 rights of such party to his injury. 1 Greenl. Ev., § 209; 
 Henry vs. Meeh, 16 IST. E. Eep., 606. 
 
 § 6. Must be a Fraudulent Purpose or Result. — The jury are 
 instructed that, to conclude a party by an estoppel, there must 
 be a fraudulent purpose on the part of the party against whom 
 it is to be applied, or his acts must produce a fraudulent result; 
 there must be a change of conduct induced by the acts of the 
 party estopped, to the injury of another, in order to prevent 
 ''im from showing the truth.
 
 200 ESTOPPEL. 
 
 The doctrine of estonpcl is based uj^on a fraudulent purpose 
 and a fraudulent result, and if tlie element of fraud is wanting 
 there is no estoppel. Chandler vs. White, 84 111., 435. 
 
 That the doctrine of eqnitable estoppels is based upon a 
 fraudulent purpose and a fraudulent result ; if, therefore, tlie 
 element of fraud is wanting, there is no estoppel ; if both 
 parties were equally cognizant of all the facts and the declara- 
 tion>, or silence of one party produced no change in the con- 
 duct of the other, then there is no estoppel. Dorlarque vs. 
 Cress, 71 III, 380. 
 
 § Y. Injury Mxist Be ShowTi. — That a person is under no legal 
 obligation to tell the truth, at all times, regarding his own 
 business or property; and although the jury may believe, from 
 the evidence, that the plaintiff told the defendant at one time 
 {fhat the said horse belonged to A. B.), still, if the jury believe, 
 from all the evidence in the case, that that statement was 
 untrue, or contrary to the fact, then the plaintiff will not be 
 bound by such statement, unless the jury further believe, from 
 the evidence, that the defendant, believing the statement to 
 be true, has acted upon it and changed his condition, so that 
 now he will be injured, or in some manner prejudiced, by 
 permitting the truth to prevail.
 
 CHAPTER XIX. 
 FOKCIBLE ENTRY AND DETAINER. 
 
 Sec. 1. Title not involved. 
 
 2. Entry by force not necessary. 
 
 3. Entry by force or threats essential. 
 
 4. The real question in issue. 
 
 5. Possession by tenant. 
 
 6. What constitutes possession. 
 
 7. Possession when actual and real. 
 
 8. What not possession. 
 
 9. Burden of proof. 
 
 Note. — The following instructions are believed to present the general 
 rules of law pertaining to this action; but these laws differ in the different 
 states. 
 
 § 1. Title not Involved. — The court instructs the jury, that 
 in this action the title to the property in question is not 
 involved; the material questions in the case for the jury to 
 determine are the right to the possession of the premises. 
 Myers vs. Koening, 5 Neb., 419. 
 
 You are instructed, that the law requires a person who 
 claims title and the right to the possession of premises in the 
 actual, peaceable possession of another, to resort to his Jegal 
 remedies instead of taking the law into his own hands, and 
 gaining such possession by force, or by invading the actual, 
 peaceable possession of another. 
 
 That although you may believe, from the evidence, that 
 the defendant was the legal owner of the premises in ques- 
 tion, and was lawfully entitled to the possession thereof, 
 still, if you further believe, from the evidence, that plaintilf 
 was in the actual, exclusive and peaceable possession of the 
 premises, the defendant would have no right to forcibly enter 
 and expel the plaintiff therefrom. Cooley on Torts, 323; 
 Dilworth vs. Fee, 52 Mo., 130; Ruftalin vs. Misner, 70 111., 
 205. 
 
 You are instructed, as a matter of law, that in this state the 
 
 (201)
 
 202 FOKCIULE ENTET AND DETAINER. 
 
 owner in fee of lands is not permitted to enter upon the pos- 
 session of tlie same while they are in the actual and peaceable 
 occupation of another, against the will of the latter, and if he 
 does so, the law will require him to restore the possession to 
 such occupier. 
 
 § 2. Entry by Force not Necessary. — The court instructs the 
 Jury, that it is not necessary, in order to constitute a forcible 
 entry, that actual force or violence should be used; any entry 
 upon the possession of another, without his consent and 
 against his will, is a forcible entry, within the meaning of the 
 law. 
 
 If you believe, from the evidence, that the plaintiff was in 
 the actual and peaceable possession of the premises in question, 
 on, etc., and that on that day the defendant intruded into and 
 took possession of said premises, against the will and without 
 the consent of the plaintiff; and if you further believe, from 
 the evidence, that the plaintiff, before the commencement 
 of this suit, made a written demand upon the defendant to 
 surrender the possession of said premises {or according to the 
 reqtdrements of the statute)^ and that the defendant refused to 
 comply with such demand, then you will find a verdict for the 
 plaintiff. 
 
 If you believe, from the evidence, that the plaintiff was in 
 the peaceable possession of the premises sued for, and that 
 while he was so in possession, the defendant, at the time 
 alleged, entered upon such possession, without the consent 
 and against the will of the plaintiff, and still holds such pos- 
 session; and if you further believe, from the evidence, that 
 before the commencement of this suit, the plaintiff made a 
 written demand upon the defendant for the possession of said 
 premises {or following the requirements of the statute), then 
 you should find a verdict for the plaintiff. Ci'off vs. Bal- 
 linger, 18 111., 200; McCdrtney vs. Auer, 50 Mo., 395. 
 
 § 3. Entry by Force or Threats Essential. — The jury are 
 instructed that to authorize a verdict against the defendant, 
 the jury must believe from the evidence that the plaintiff 
 w^as in the actual possession of the premises prior to the 
 alleged forcible entry or detention, and that the defendant
 
 rORCILlLE EXTKY AND DETAINEE. 203 
 
 took the possess'on with force and violence, or by such a show 
 of force and threats as was i-easonably calculated to intimidate 
 the plaintiff, or else that the defendant kept such possession 
 unlawfully and by force and violence, or by threatening the 
 same. Archey vs. Knight, 61 Ind., 311. 
 
 The offenses of forcible entry and forcible detainer are 
 entirely distinct. Every forcible entry is forbidden by law, 
 and is, therefore, unlawful, wiiether the person taking such 
 forcible possession is legally entitled to the possession or not. 
 But every forcible detainer is not forbidden by law; if a ])er- 
 son gains peaceable possession and he is then legally entitled 
 to possession, he may hold such possession by force. Iloff- 
 onan vs. Harrington, 22 Mich,, 52. 
 
 The law is that if a person obtains an entry upon the pos- 
 session of another by stealth or stratagem, or in any other way 
 without actual force or violence, and the jury believe, from 
 the evidence, that such entry was for the piurpose and with the 
 intention of forcibly expelling the person in possession, and 
 the entry is followed up by an actual expulsion of such per- 
 son by means of personal threats or violence or superior force, 
 it will amount to forcible entry. Seitz vs. Miles, 16 Mich., 
 456; People vs. Sinith, 24 Barb. (S. C), 16. 
 
 You are instructed that if you believe, from the evidence, 
 that some time on and about, etc., the premises in question 
 were vacant and unoccupied, and that the plaintiff then made 
 a peaceable entry into said premises under a l)ona fide Q\di\va. of 
 right, and inclosed the same (with a wire fence), then this was 
 an actual possession by him. And if you further believe, 
 from the evidence, that after the plaintiff had so taken pos- 
 session, the defendant, in plaintiff's absence, took possession of 
 said premises and forcibly tore down the said fence and refused 
 to surrender possession to the plaintiff upon his demand, this 
 would amount to a forcible entry and detainer and you should 
 find the defendant guilty. Canvpbell vs. Coonradt, 22 Ivans., 
 704. 
 
 § 4. The Real Question in Issue. — The jury are instructed 
 that whether the plaintiff was lawfully or unlawfully in the 
 possession of the premises, is a matter of no consequence in 
 this suit. The material questions for the jury to determine by
 
 204: rORCIDLE ENTKY AND DETAINEE. 
 
 the evidence, are whether, in fact, at the time in question, the 
 plaintiff was in the actual, peaceable possession of the premises 
 in question, and whether the defendant entered upon such 
 possession against the will of the plaintiff, and retains such 
 possession; and if the jury find both these points in favor of 
 the plaintiff {and that he served a vnntten demand for such 
 possession tipoti the defendant before the commencemeyit of this 
 suit), then the jury should find the defendant guilty. Allen 
 vs. ToUas, 77 111., 169; Jones vs. Shay, 50 Cal., 50S. 
 
 If you believe, from the evidence, tliat prior and up to 
 
 about the day of, etc., the plaintiff was in the actual and 
 
 peaceable possession of the premises in question, either by 
 himself or his agent, and that while the plaintilf was so in pos- 
 session, the defendant inti'uded himself into such possession 
 without the consent of the plaintiff, such intrusion would be 
 unlawful, and will render the defendant liable in this action; 
 provided, you further believe, from the evidence, that {a 
 written demand was made upon him for the possession of said 
 premises) before the commencement of this suit, and that he 
 refused to surrender such possession. 
 
 § 5. Possession by Tenant. — If the Jury believe, from the 
 
 evidence, that prior and up to about the day of, etc., the 
 
 plaintiff was in the actual, peaceable possession of the prem- 
 ises in question, by A. B., his tenant, and that, on or about 
 that time, the said A. B., moved out without the knowledge 
 of the plaintiff, and left the premises temporarily unoccupied, 
 these facts would not authorize the defendant to enter upon 
 said premises and take the possession thereof without the con- 
 sent of the plaintiff; and if the jury further believe, from 
 the evidence, that the defendant did so take possession, then 
 the plaintiff would be entitled to a verdict {provided, tlie evi- 
 dence shows that the plaintiff caused a written demand for 
 such possession to he Tnade on the defendant hefore commenc- 
 ing this suit, and that the defendant refused to surrender such 
 possession). 
 
 If you believe, from the evidence, that -ju-ior and up to 
 
 about the day of, etc., the said plaintiff was in the actual 
 
 peaceable possession of said premises by one A. B., his tenant, 
 and that at or about that time the said tenant and the defend-
 
 •ORCILLE ENTKY AND DETAINER. 205 
 
 ant, for tlio purpose of deprlviiio; the plaintiU of sueli possas- 
 sion, entered into a eollusivc agreement or arrangement, by 
 wliich the said A. B. was to move out of said |»reniises, and 
 the said defendant was to immediately move in, and that this 
 collusive arrangement was carried out, and the defendant 
 thereby acquired the possession of such premises, such pos- 
 session would be unlawful, and render the defendant liable to 
 be removed therefrom in an action of forcible entry and de- 
 tainer (provided, a written demand was made by the plaintijQE 
 upon the defendant for such possession before comniinicing 
 the suit, and that he refused to surrender such possession). 
 
 . § 6. Wliat Constitutes Possession. — The Jury are instructed, 
 that it is not necessary, in order to establish possession of real 
 estate, that the claimant should actually reside upon it or have 
 it inclosed with a fence. It is enough if the party is doing 
 such acts thereon as indicate in an open, public, visible man- 
 ner, that he is exercising exclusive control over the land under 
 a claim of right to such exclusive possession. Pearson vs. 
 Eerr, 53 111., 115. 
 
 The court instructs you, as a matter of law, that in order to 
 constitute possession of real estate, it is not necessary that 
 the lands shall be resided upon or surrounded by a fence. 
 Any act that will equally well evince an intention to assert 
 and claim possession, such as raising crops, cutting grass, or 
 herding cattle thereon — provided such herding is open and 
 e:i:clusive— will constitute such a possession as will enable the 
 party to maintain an action of forcible entry and detainer 
 against any person who, without the consent of the party so 
 in possession, enters upon such possession and wrongfully and 
 forcibly holds the same. Goodrich vs. Van Land'mghain, 46 
 Cal., 601; Bradley vs. West, 60 Mo., 59; Pensoneau vs. 
 Bertlce, 82 111., 161. 
 
 § 7. Possession — When Aetna! and Real. — That when an act- 
 ual possession is relied upon, in this form of action, it must be 
 open, public and exclusive, or it will not be sufficient; and in 
 this case, if the jury believe, from the evidence, that the acts 
 which are relied upon by the plaintiff to indicate possession, 
 are of such a character that they may as well indicate acts of
 
 206 FORCIBLE ENTRY AND DETAINER. 
 
 trespass as an assertion of ownership or riglit to possession, 
 then thej are not sufficient to sustain tliis action. 
 
 If you believe, from the evidence, that at the time of the 
 alleged entry by defendant, the lands in question were uniii- 
 closed and uncultivated, and were used in common by the 
 neighborhood generally, and that the plaintiff only used them 
 as the other inhabitants did, then these acts alone would not 
 indicate such a possession as is required to maintain this ac- 
 tion. 
 
 § 8. What Not Possession. — If the jury believe, from the 
 evidence, that the acts from which plaintiff claims to have had 
 possession of the premises were not of such a character as to 
 arrest the attention of those in the vicinity, or to indicate to 
 them that he claimed exclusive possession, but were such as 
 would in reality indicate to the neighbors that his entries upon 
 the land were only casual, and not under any claim of right to 
 the exclusive possession thereof, then the defendant did nut 
 have such a possession as would sustain this action. 
 
 If you believe, from the evidence, that the lands in ques- 
 tion, at the time of the alleged entry by defendant, were un- 
 inclosed and uncultivated, and that plaintiff's cattle were only 
 pastured upon the said lands occasionally, with other cattle in 
 that vicinity, feeding there and on adjoining lands, and that 
 plaintiff" only occasionally took some trees from the land, such 
 acts would not be sufficient to show the possession required to 
 maintain this action. 
 
 If you believe, from the evidence, that shortly before the 
 alleged entry upon said premises by the defendant, and befor<; 
 any entry thereon by the plaintiff, the defendant had been in 
 possession of the said house, and that when he left he locked 
 the doors, taking with him the key to the outside door, and 
 that he retained possession of said key; and if you further be- 
 lieve, from the evidence, that some time about the, etc., and 
 while the defendant had said key in his possession, or under 
 his control, the plaintiff effected an entrance to said house 
 through one of the windows, without the knowledge or con- 
 sent of the defendant, then a possession thus acquired by the 
 plaintiff is not sufficient to sustain this action. Cooley on 
 Torts, 322, 323; SUinlein v. Ealstead, 42 Wis., 422; Wray 
 vs. Taylor, 56 Ala., 188.
 
 FOKCir.LE ENTKY AND DETAINER. 207 
 
 § 9. Burden of Proof. — The court instructs the jury, that in 
 this case the burden of proof is upon the plaintiff, and to sustain 
 his action he must prove, by a preponderance of the evidence, 
 that he was in the actual, open and exclusive possession of the 
 premises at the time of the alleged entry by defendant, and 
 that he, while the plaintiff was so in possession, intruded him- 
 self into said possession against the consent of the plaintiff. 
 And if the jury believe, from the evidence, that the plaintiff' 
 was not in the actual exclusive possession of the premises at 
 the time of the alleged entry of the defendant, the jury should 
 find the issues for the defendant.
 
 CHAPTER XX. 
 
 STATUTE OF FKAUDS. 
 
 Skc. 1. What is a promise to pay the debt of another. 
 
 2. "What is not a promise to pay the debt of another. 
 
 3. Contract not to be performed within a year. 
 
 § 1. What is the Promise to Pay the Debt of Another, — The 
 
 jury are instructed that in order to hold a person liable on a 
 verbal promise to pay for goods furnished to another, the 
 goods must be furnished exclusively upon the credit of such 
 promiser, and the creditor must have discharged the receipt 
 out of the goods at the time of the sale from all liability there- 
 for — he can not retain an option to claim payment from one 
 or the other at his future election — and in this case, if the jury 
 believe, from the evidence, that the plaintiff sold the goods to 
 one F. and charged them to him iTpon the promise that if F. 
 did not pay for the goods then the defendant would pay for 
 them, such a promise on the part of the defendant would be 
 within the statute of frauds and would not be binding unless 
 it were in writing. Welch vs. Marvin, 36 Mich., 59. 
 
 If the jui-y believe, from the evidence, that some time about, 
 etc., one F. applied to the plaintiff and desired to ]mrchase 
 from him, etc., on credit, and that |3laintift' refused to extend 
 such credit without some kind of security or assurance that 
 the debt would be paid, and tliat*thcreupon the defendant told 
 plaintiff" to let F. have the goods and tliat if F. did not ])ay for 
 them he would, then such a ])romise would be within the 
 statute of frauds, and the defendant would not be liable thereon. 
 Welch vs. Marvin, 36 Mich., 59; Cole vs. Hutchinson, 26 X. 
 W. E.ep., 319; Brown vs. Bradshaw, 1 Duer, 199. 
 
 § 2. Wliat is not a Promise to Pay the Debt of Another. — If 
 
 the jury believe, from the evidence, that some time on or 
 about, etc., one A. was indebted to the plaintiff in tlie sura of 
 
 ^ and tliat at or about that time the defendant ]nirchased 
 
 from A. a certain, etc., and as a part of the contract of pur- 
 chase, agreed to pay to the plaintiff $ of the purchase price 
 
 (208)
 
 STATUTE OF FKAUDS. 209 
 
 of said property to apjilj on the debt so due from A. to the 
 pliiintifT, then the defendant's promise would not be within 
 the statute of frauds as a promise to jiay the del^t of another, 
 and tlie plaintiff is entitled to recover nj)on such pi-omise in 
 this case. Lee vs. Newmaii^h^ Miss., 365; 5 Greenlf. (Me.), 
 81; 9 Cowan, 266; Williams vs. Rogers, 14 Busli. (Kj-)? '^^^' 
 Beanlslee vs. Morgner, 4 Mo. App., 139. 
 
 If the jury believe, from tlie evidence, that the defendant 
 entered into a contract with one F., by which it was agreed 
 tliat F. should build a house for defendant and furnish the 
 material tlierefor, and that thereupon the defendant prom- 
 ised plaintiff that if he would furnish F. the material for said 
 house he would see plaintiff paid out of the money coming to 
 F. under his contract, and that, relying upon that promise of 
 defendant, plaintiff let F. have the material charged in the 
 account sued on in this case, and that without such promise 
 the plaintiff wmild not have furnished the material, then the 
 defendant's promise is not within the statute of frauds, and 
 he is liable thereon. Eastdhvook vs. Gebhart, 32 Ohio St., 
 415; Calkins vs. Chandlier, 36 Mich., 320. 
 
 If the jury believe, from the evidence, that some time about, 
 etc., the defendant entered into a contract with one F., 
 whereby F. agreed to erect for the defendant a dwelling house 
 and furnish the material therefor, and that afterwards F. made 
 a contract wnth the plaintiff by which the plaintiff" agreed to 
 furnish certain materials, consisting of, etc., to be used in the 
 constructing of said house, and that the plaintiff did after- 
 wards, in pursuance of said last mentioned contract, furnish a 
 portion of said materials, and then refuse to furnish any more 
 until he could be assured of his pay for the same, and that 
 then the plaintiff and F. called on defendant in reference 
 thereto, and the defendant, in tlie conversation referring to 
 the said materials and the said buildings, said to the plaintiff", 
 I will pay for all the material which you put into that 
 building, and that ])laintiff, relying on that promise, afterwards 
 furnished material which went into that building, then such 
 promise of the defendant would not be within the statute of 
 frauds, and he would be liable thereon for the material so fur- 
 nished. Hartley \&.Ya7mer,^S 111., 591; Mon^isony^. Bakei\ 
 81 K C, 76; Thatcher vs. Rockwell, 4 Col., 375. 
 14
 
 210 STATUTE OF FIlAUDS. 
 
 Although the Jury may believe, from the evidence, that the 
 whole of the material for the price of which this suit is brought, 
 was charged ou the account books of the plaintiff to the said 
 F., still if the jury further believe, from the evidence, that 
 before the stuff was furnished, the defendant proni'sed to pay 
 for the same if it should be furnished to F., and that the ma- 
 terial was, in fact, furnished to F. upon the promise of the 
 defendant to pay for the same and not upon the account, credit 
 or promise of the said F., then the said plaintiff is entitled to 
 recover in this suit for the value of the material so furnibhod. 
 
 § 3. Contract not to be Performed within a Year. — The law is 
 
 that where a contract is not to be fully performed within one 
 year from the time it is made, it is not binding upon either of 
 the parties, but if work has been done or services performed by 
 one of the parties for the other, with his knowledge and con- 
 sent, under such a contract, the person ];erformihg the service 
 or doing the work may recover therefor what the same is rea 
 sonably worth. Towsley vs. Moore, 30 Ohio St., 184; Brown 
 on Frauds, Sec. 117 ; 3 Pars, on Cont., 38; Frary vs. SierUnij, 90 
 Mass., 461; Patton vs. IIicl-s,4:4: Cal., 509; Moore vs. Aldrich, 2.") 
 Texas, 276; Wm. Butcher Steel Worhs \s. AtJdnson.Q^lW., -^21. 
 The jury are instructed, that under the laws of this state, 
 an agreement that is merely verbal and not in writing, 
 and which by its terms is not to be fully performed 
 within one year from the making thereof, is not valid nor 
 binding on the parties; and though the jury may believe, 
 from the evidence, that there was an agreement between the 
 parties by which the defendant agreed to employ the plaintiff 
 for a period of two years, at a salary of twenty-five hundred 
 dollars for the first year and at an increased salary for the second 
 year, still if the jury further find, from the evidence, that such 
 contract was not reduced to writing, nor any note or memo- 
 randum thereof made and signed by the defendant or its author- 
 ized agent, then such contract would not be binding on the 
 defendant for a longer time than one year from the time the 
 same was made, and the defendant would have the right to 
 discharge the plaintiff at any time after the expiration of the 
 first year, and would only be liable to pay him at the contract 
 price for the services actually rendered. Brown on the 
 Statute of Frauds, § 118; Shnte vs. Dorr, 5 Wend., 201.
 
 CHAPTER XXL 
 
 FEAUDS AGAINST CREDITOKS. 
 
 Sec. 1. Sale with intent to defraud creditors. 
 
 2. Fraudulent, though with a good consideration, when. 
 
 3. Must be a change of possession — Fraud per se. 
 
 4. Must be outward, visible signs of change of possession. 
 
 5. Priority of possession under execution. 
 
 6. Retaining possession — Presumptive evidence of fraud. 
 
 7. Good faith a question for the jury, when. 
 
 8. Possession evidence of ownership. 
 
 9. Possession not evidence of ownership, when. 
 
 10. Only such change required as can reasonably be made. 
 
 11. Property in possession of a third party. 
 
 12. Symbolical delivery. 
 
 13. Possession by agent. 
 
 14. Possession of growing crops. 
 
 15. Temporary possession of vendee. 
 
 16. Person in debt may sell his property. 
 
 17. Sale by relatives not necessarily fraudulent. 
 
 18. Debtor miy transfer property in payment of debtf?. 
 
 19. Sale on credit. 
 
 20. Debtor may prefer creditor. 
 2T. Preferring wire as creditor. 
 
 22. Purchaser may be chargeable with notice of fraud. 
 
 23. Creditor not affected by knowledge, when. 
 
 24. What is sufficient notice of fraudulent intent. 
 
 25. Honest intent presumed. 
 
 CHATTEL MORTGAGE AS AGAINST JUDGMENT CEEDITOES. 
 
 2ij. Good between the parties without recording. 
 
 27. As to creditors, must be acknowledged and recorded. 
 
 28. Mortgagee must see to statutory requirements. 
 
 29. Acknowledgment and recording, how proved. 
 
 30. Mortgagee must talce possession of the property, when. 
 
 31 . Fraudulent mortgage void. 
 
 32. Note for more than amount due. 
 
 33. Mortgage of stock of goods. 
 
 34. Bath pirtie=! must intend tha fraud. 
 
 35. Good faith, how proven. 
 
 36. Intent to defrau 1 must exist at the time of, etc. 
 
 37. Subsequent acts will not render void. 
 
 (211)
 
 212 FEAUDS AGAINST CKEDITOKS. 
 
 38. Sale by mortgagor. 
 
 39. Mortgage to secure furt' er advances. 
 
 40. Possession by the mortgagee. 
 
 41. Possession by the mortgagor after default. 
 
 42. Mortgage to secure contingent liability. 
 
 43. Taking possession before debt due. 
 
 44. Sale by mortgagor for benefit of mortgagee. 
 
 Note. — In many of the states, the retaining of the possession of personal 
 property, by the vendor, after an absolute sale, is held, in favor of the credit- 
 ors of the vendor, to be prima fade or presumptive evidence of a fraudu- 
 lent intent on the part of the vendor, known to and participated in by the 
 vendee; but such presumption may be rebutted by evidence of good faith. 
 In some of the states such retaining of possession is held to be conclusive 
 evidence of fraud, in favor of the creditors of the vendor, and not subject 
 to exclanation. In other states the matter is regulated by statute. Bump 
 on Fraud. Conv., 60, and the cases there cited. 
 
 § 1. Sale with Intent to Defraud Creditors. — The jury are 
 instructed, that every sale or conveyance of property, made 
 by the parties with intent to hinder, delaj'- or defrand creditors 
 in the collection of their debts, is fraudulent and void as to such 
 creditors, whether such sale or assignment is made with or 
 withouta valuable consideration therefor. Camjphell v. Whit- 
 son, 68 111., 240. 
 
 § 2. Fraudulent, Though for a Good Consideration, "VMien. — 
 
 That a conveyance or sale of property made with the intent, 
 on the part of the vendor, to delay, hinder or defraud a par- 
 ticular creditor in the collection of his debt, is void as against 
 all the creditors of the vendor, if the intent be known to or 
 particii)ated in by the vendee, although made for a good and 
 valuable consid'eration. Bump on Fraud. Conv., 198; N'elson 
 vs. Smith, 28 111.. 495; Chappell vs. Clapp, 29 la., 191; Harri- 
 son vs. Jaguess, 29 Ind., 208; Castro vs. lilies, 22 Texas, 479; 
 Gardiner vs. Otis, 13 Wis., 460. 
 
 You are instructed, that if a purchaser knows that the 
 vendor has a fraudulent purpose in making the sale, and buys 
 with that knowledge, he is not a bona fide purchaser. 
 
 § 3. IMust be a Change of Possession — Fraud per se. — The 
 
 court instructs the jury, as a matter of law, that any sale or 
 conveyance of personal pro pert}', to be valid, as against the 
 creditors of the seller, must be accompanied and followed by
 
 FKAUDS AGAINST CREDITOKS. 213 
 
 a change in the possession of such ])ropertj, from the seller 
 to the purchaser, so far as the situation of the parties and the 
 character of the property will reasonably admit of a change of 
 possession. 
 
 That the change of the possession of personal property upon 
 a sale thereof, must not be merely nominal or momentary; it 
 must be real, actual and open, and such as may be publicly 
 known, so far as the circumstances will reasonably admit of. 
 A continued possession by the vendor of personal propert}', as 
 ostensible owner, after an absolute sale, renders the sale fraudu- 
 lent and void, as against creditors of the vendor. Wrlfjht vs. 
 Grover, 27 111., 426; Sutton vs. Bailout, 46 Iowa, 517; Cater 
 vs. Collins, 2 Mo. App., 225; Bosse vs. Thomas, 3 111. App., 
 472. 
 
 That any sale of personal property, when it is permitted to 
 remain with the vendor, if it is of that character of ])roperty 
 that it is capable of being removed, or of having a change in 
 the possession of it made, is fraudulent in law, as to creditors 
 and subsequent purchasers, notwithstanding the sale may be in 
 good faith, and for a valuable consideration. Ticknor vs. 
 McClelland, 84 111., 471. 
 
 § 4. Must be Outward, Visible Siffus of Change of Possession. — 
 
 The jury are instructed, that when persons are doing business 
 as a firm, and, in the way of their business, have in their pos- 
 session a stock of goods in store, and while they are so doing 
 business, they contract debts, then no sale or assignment of 
 such stock of goods, or any interest therein, will be valid, as 
 against the creditors of the firm, unless the creditors have 
 actual notice of the sale, or there is such a change in the pos- 
 session of the goods, and of the outward and visible signs of 
 ownership, as would indicate to the public, and to those deal- 
 ing with the stock, that such sale or transfer had been made. 
 ^Yrig^lt vs. McCormicJc, 67 Mo., 426. 
 
 If you believe, from the evidence, tliat some time about the 
 month of J. and B. commenced to do business as part- 
 ners, and, in the way of their business, had a stock of goods at 
 
 , and that while they were so doing business, that firm 
 
 became indebted to K. upon the note introduced in evidence, 
 and that afterwards J. sold out all his interest in the stock of
 
 21tt FKAUDS AGAINST CKEDITOKS. 
 
 goods to liis partner, such a sale would, in law, be fraudulent 
 and void as against K., unless you believe, from the evidence, 
 that K. liad actual notice of the sale, or unless the sale was ac- 
 companied and followed by all such changes in the possession 
 of the stock of goods, and in the manner of doing business in 
 connection therewith, as would, so far as the circumstances 
 would reasonably admit of, notify the public and persons deal- 
 ing with the firm, and with the stock of goods, that such sa'e 
 had been made. 
 
 Tou are instructed, as a matter of law, that any sale or as- 
 signment of personal property, when the possession of the 
 property is permitted by the purchaser to remain in the seller, 
 is fraudulent and void as against the creditors of the seller ; 
 and where the nature of the property and the situation of tlie 
 parties will admit oi it, in order to constitute a change of pos- 
 session, there must be some outward, open, visible change in 
 the relation of the parties to the goods, indicating a change in 
 the possession that could be seen and known by persons deal- 
 ing with the goods. PicTcdrd vs. Hopkins^ 17 111. App., 570. 
 
 If you believe, from the evidence, that before and up to the 
 time of the alleged sale from A. B. to the ])laintiff. A. B. had 
 been engaged in business as a retail merchant, and that the 
 goods in question, or any of them, were a part of his stock in 
 trade, and after the alleged sale A. B. and his former clerk 
 remained in chai-ge of the store, and that nothing was done by 
 the parties to notify the public that there had been a sale, 
 then the sale would, in law, be fraudulent and void as against 
 the creditors of A. B.; and if you further believe that A. B. 
 was indebted to the said K., before and at the time of the 
 alleged sale, then the property, while so remaining in the pos- 
 session of A. B., could lawfully be taken on an attachment 
 writ or execution, issued in favor of the said K., and against 
 the said A. B. 
 
 That when a person engaged in business as a retail mer- 
 chant, sells out his business and entire stock in trade to 
 another, in order to render the sale valid as against the credit- 
 ors of the seller, it is necessary that there be an actual change 
 of the possession of the property sold, from the former owner 
 to the purchaser, attended by such outward and visible signs 
 of a change of possession as could be seen and known to the 
 pubMc, or to persons dealing with the goods.
 
 FEAUDS AGAINST CREDITORS. 215 
 
 The court instructs you, that while a sale of property may 
 be good, as between the vendor and vendee, without actual 
 delivery, yet to make such sale valid and binding, as against 
 the creditors of the vendor, there nnist be a delivery of the 
 pro[)erty so sold; and such delivery must be an actual, manual 
 delivery, Avhen the property is susceptible of it; and when 
 the ])roperty is so heavy or bulky that manual delivery is im- 
 jnacticab^e, then there nmst be some outward public act done 
 by way of delivering tlie possession, which shows an intention 
 by the parties to change the possession from the seller to the 
 buyer, so far as it can reasonably be done nnder the circum- 
 stances of the case. Ticknor vs. McClelland, 81 111., 471; 
 Allen vs. Carr, 85 111., 388. 
 
 § 5. Priority of Possession under Execntion. — If the jury be- 
 lieve, from the evidence, that at the time of the alleged pur- 
 chase of the ])roperty, there was no act done by the seller 
 towards turning over the pro])erty to tlie plaintiff, and no act 
 done by the plaintiff towards taking p)ossession of the property, 
 then, as against the execution creditors of the seller, such a 
 sale would be fraudulent and void in law, and the execution 
 introduced in evidence, if received by the othcer {or levied 
 tipon the proj>e7'ty) before any acts were done towards chang- 
 ing the possession of it, would hold the piroperty as against 
 the plaintiff". 
 
 § 6. Retaining Possession — Presumptive Evidence of Fraud. — 
 
 The court instructs the jury, that the law presumes every sale 
 of personal property to be fraudulent and void, as against the 
 creditors of the seller, unless a change of possession of the 
 property, from the seller to the purchaser, accompanies and 
 follows the sale; and this change must be an open, visible 
 change, manifested by such outward signs as render it evident 
 to persons dealing with the property, that the possession of 
 the former owner, as such, has ceased. Osborne vs. Ratlijfe^ 
 53 la., 748. 
 
 In this case, although ^^ou may believe, from the evidence, 
 that the plaintiff' and the said A. B., before the execution, in- 
 troduced in evidence in this case, was issued and received by 
 the ofHcer {or levied ujyoro the property), went through with
 
 2 It) FKAUDS AGAINST CEEDITORS. 
 
 the forms of a sale from the latter to the former; ctill, if jou 
 further believe, from the evidence, that there was no apparent 
 change in the possession of the property accompanying such 
 sale, then the law presumes the sale to have been made with 
 a fraudulent intent on the ]:art of the seller, known to and 
 participated in by the plaintiff, and, in such case, the burden 
 of proof is on the plaintiif to show the good faith of the 
 transaction, by a preponderance of evidence. 
 
 You are further instructed, as a matter of law, that where 
 a sale of personal property is alleged to have been made, and 
 there is no change in the possession of the jn-operty accom- 
 jmnying or following the sale, then the law ])resumes tliatsuch 
 sale was made with intent to hinder, delay or defraud the 
 creditors of the seller; and to render such a sale valid and 
 binding, as against such creditors, the burden of proof is on 
 the purchaser to show, by a preponderance of evidence, that 
 the sale was bonajide and honest, and not designed as a mere 
 trick to cover up the ])roi erty. Wehster vs. Anderson^ 42 
 Mich., 551; Stem vs. Henley, QS Mo., 2G2: Gcisendorff vs. 
 Eagles, TO Ind., 418. 
 
 § 7. Good Faith a Question for the Jury, "VMien. — The jury are 
 instructed, that although the iaw presumes every sale of per- 
 sonal property, where the possession of the property is allowed 
 to remain with the seller, to be fraudulent and void, as against 
 the creditors of the seller, still, this presumption of law is not 
 conclusive on the parties, and whether the sale was, in fact, 
 made in good faith, is a question to be determined by thejui-y, 
 from a consideration of all the evidence in the case. 
 
 And in this ease, if you believe, from all the facts and cir- 
 cumstances attending the sale in question, as shown by the 
 evidence, that the sale was bona fide, and for a valuable con- 
 sideration, and not made with intent, or for the purpose of 
 hindering, delaying or defrauding the creditors of the said A. 
 B., then such a sale is as valid and binding as though the 
 possession of the property had passed to the plaintiff at the 
 time of the sale. Crawford vs. KirJcsey, 55 Ala., 282 : Itoh- 
 inson vs. Uhl, 6 Neb., 328; 31 organ vs. Bogue, 7 Kob., 429; 
 McCully vs. SwacJihainer, 6 Oreg., 438. 
 
 § 8. Possession Evidence of Ownership. — The court instructs
 
 FKAUDS AGAIKST CKEDITOES. 217 
 
 the jury, that possession of personal projicrtj is jprima facie 
 evidence of ownership, if there are no circumstances accom- 
 panying the possession to rebut the presumption of owner- 
 ship; and if the jury believe, from the evidence, that the 
 plaintiff had been in possession of the property in question for 
 
 months, prior and up to the time it was taken, and under 
 
 circumstances indicating ownership in him, then it is incum- 
 bent upon the defendant to show, by a preponderance of 
 testimony, that the title was not in the plaintiff, and unless 
 he has done so, they should find for the plaintiff, as to the 
 ownershi]3 of the property. Bergen vs. Riggs^ 34 111., 170. 
 
 § 9. Possession not Evidence of Ow^nersliip, AVlien. — The jury 
 are instructed, that although it is a general rule of law, that 
 possession of personal property is friiiia facie evidence of 
 title in the person in possession, still the possession may be 
 accompanied by such circumstances as to rebut such presump- 
 tion; and so in this case, although the jury may believe, from 
 the evidence, that the defendant was in possession of the prop- 
 erty when, etc., still, if the jury further find, from the evidence, 
 that such possession was attended or accompanied by such cir- 
 cumstances as rebut the presumption of ownership arising from 
 such possession, then such possession is not, of itself alone, 
 as en priiyia facie evidence of ownership in the defendant. 
 
 § 10. Only Sucli Cliange Required as can Reasonably be Made. — 
 
 In determining wdiat it takes to constitute a deliveiy and 
 change of possession of personal property npon a sale of it, 
 the jury should take into consideration the character of the 
 property, and the situation of the parties at the time of the 
 sale; and in this case, if the jury find, from the evid 'nee, that 
 the plaintiff purchased the property in question in good faith, 
 and for a valuable consideration, before the execution, intro- 
 duced in evidence, came into the hands of the ofiico]- [or loas 
 levied UTpon the iwoperty)^ that plaintiff had done everything 
 which could reasonably be done, under the circumstances, by 
 way of taking possession of the property, under the sale to 
 him, then the property would not be liable to be taken on the 
 execution. Bump on Fraud. Conv., 165 ; Cartright vs. Phimiix, 
 7 Cal., 281; Allen vs. Smith, 10 Mass., 308; Chase vs. Ral- 
 st07i, 30 Penn. St., 539.
 
 218 FKAUDS AGAINST CEEDITOES. 
 
 That the rule of law requiring a change of possession of per- 
 sonal property upon the sale of it, in order that the sale shall 
 not be fraudulent as against creditors, only requires such a 
 change of possession as the articles sold will conveniently and 
 reasonably admit of, and in the case of heavy and cumbersome 
 articles, an actual delivery of any essential part thereof, with 
 the intention of delivering the whole, is, in law, equivalent to 
 a delivery of the whole article sold. 1 Pars, on Cont, 443. 
 
 The court instructs you, that although a delivery of personal 
 property sold is necessary to pass the title thereto, as against 
 the creditors of the seller, yet such delivery need not neces- 
 sarily be an actual delivei-y; but anything which clearly shows 
 a surrender of ownership by the seller, and an assumption of 
 ownership by the purchaser, accompanied by such circum- 
 stances as would reasonably advise the world of such change 
 of ownership, is all that is necessary on that point. Plckard 
 vs. UopJdns, 17 111. A pp., 570. 
 
 § 11. Property in Possession of Tliird Person. — The court in- 
 structs the jury, that where personal property is sold, which, 
 at the time of the sale, is in the actual ])Ossession or under the 
 cuntrol of a third person, no other delivery of such ]iroperty 
 is necessary, than that the seller and purchaser, together with 
 such thii-d person, should agree that such third person should 
 thei-eafter keep possession of the property for the purchaser, 
 and he does so keep possession. Ibid. 
 
 § 12. Sj-mbolical Delivery. — The jury are instructed, that 
 the transfer of a bill of lading, on a sale or pledge of the 
 property shipped, is a symbolical delivery of the property to 
 the purchaser or pledgee, and, if proved, is a good delivery of 
 the ])roperty as against the creditors of the shippers. 1 Pars, 
 on Cont., 443; Mich. Cent. Ed. Co. vs. PMllijys, 60 111., 190. 
 
 § 13. Possession by Agent. — That a party may be in pos- 
 session of personal property, by his agent as well as by him- 
 self, and if the goods are sold in good faith, and for a valuable 
 consideration, and the possession is delivered to the purchaser, 
 it is not necessary that he should remain in the actual pos- 
 session of the property to guard liis title; but such possession 
 may be by an agant, and such agent may be the seller of the
 
 FKAUDS AGAINST CEEDITORS. 219 
 
 property, if llio ]»ossession is such as reasonably to advise the 
 creditors of the cluuige in the title of the property. Warner 
 vs. Carleto?i, 22 III., 415. 
 
 § 14. Possession of Growing Crops.— The conrt instructs the 
 jury, that upon the sale of personal property, where the goods 
 are purchased, and are incapable of being handed over from 
 one to another, there need not be a manual delivery; and in 
 , the case of the sale of standing corps, the possession will be 
 in the vendee until it is time to harvest them, and until then 
 lie is not required to take manual or actual possession of them. 
 Ticknor vs. McClelland.! S-i 111., -ITl. 
 
 § 15. Temporary Possession of Vendee. — If the jury believe, 
 ■ from the evidence, that the plaintiff ])urchased the property 
 in good faith, and paid a valuable consideration therefor, and 
 then took actual possession of the property under such sale, 
 and continued such possession long enough and under such 
 circumstances as to apprise the }mblic generally of a change 
 in the ownership of the property, then, although the jury 
 should find, from the evidence, that the plaintiff loaned the 
 property temporarily to the said A. B., this would not alone 
 render the sale fraudulent or void {or not presumptive evi- 
 dence of a fraudulent sale^ etc.), as against the creditors of the 
 said A. B. Cunningham vs. Ilaniilton., 25 111., 228. 
 
 § 16. A Person Indebted may Sell his Property. — That a party, 
 though in debt, may sell his property to any one he pleases, if 
 for an honest and fair consideration, and no lien exists to for- 
 bid it. If the transaction be an honest one, made in good 
 faith and for an adequate consideration, it matters not how 
 many creditors may be prevented thereby from reaching the 
 pro])erty. 
 
 The jury are instructed, that although a sale of a debtor's 
 proj.erty may have the effect to hinder and delay his creditors 
 in the collection of their debts, this fact alone will not render 
 the sale fraudulent or void; a debtor, however insolvent, may 
 lawfully sell his property, even for less than its worth, if it is 
 done with a honafide intention of applying the proceeds in 
 discharge of any legal liability. Bump on Fraud. Conv., 44; 
 Wdsonx^. Smith, 28 111., 495.
 
 220 FRAUDS AGAINST CEEDITOES. 
 
 You ai-e instructed, that a sale of proj^erty in good faitli 
 for a valuable consideration, when there is a delivery of the 
 property sold, passes the title to the purchaser, and the fact 
 tliat the seller was in debt will not, of itself, invalidate the 
 sale, although the purchaser may have known that fact at the 
 time of the purchase. 
 
 If you believe, from the evidence, that C. was indebted to 
 third persons at the time of the sale to the plaintiff, if such 
 sale has been proved, and that the plaintiff agreed to pay such 
 debts, this would constitute a good consideration for the sale 
 to the plaintiff, if the sale was made in good faith, War?ier 
 vs. Carleton, 22 111., 415. 
 
 § 17. Sale to Relatives not Necessarily Eraudulent. — A man 
 
 lias a perfect right to deal with his friends and relations, — to 
 buy or sell from or to them, and the presumption of law is, 
 that the dealings between relatives are fair and honest, with- 
 out any fraudulent intent, and no jiresumption of fraud attaches 
 to such dealings; and if a man finds himself in failing circum- 
 stances he has a right to prefer one creditor to another, — to 
 so dispose of his property that one of his creditors shall receive 
 his pa}' in full and others receive nothing. Xor there is any 
 presum{)tion of fraud in so doing. Schroeder vs. ^Valsh^ 12U 
 111., 410; Wightmcui vs. Hart, 37 111., 123; Waterman vs. 
 Donalson, 43 111., 29; Bump on Fraudulent Conveyances, 56. 
 
 § 18. Debtor may Transfer Propei-ty in Payment of Debts, — 
 
 The jury are instructed, that a person who is indebted and 
 unable to pay all his debts in full, has a right to prefer any 
 one, or more, of his creditors to the exclusion of all the others; 
 and in the payment of a Jjona fde indebtedness to one of his 
 creditors, a debtor may exhaust the whole of his property, so 
 as to leave nothing for the other creditors, \\A\o are equally 
 meritorious. Bump on Fraud. Conv., 183; State vs. Laurie, 1 
 Mo. App., 371; Green vs. Tanner, 49 Mass., 411; Kemp vs, 
 Walker, 16 Ohio, 118; Huhbard vs, Taylor, 5 Mich., 155. 
 
 That there is no law requiring a debtor, however insolvent, 
 to keep his property until a creditor can attach it or have it 
 levied upon by an execution. Such a debtor may, in good 
 faith, and for a valuable consideration, sell all liis propcj ty and
 
 FEAUDS AGAINST CREDITOKS. 221 
 
 api^ly the proceeds thereof to the ])ayment of any one or more 
 of his creditors, as he may see tit, if done in ^ood faith, al- 
 though it be done with the intention of defeating his other 
 creditors. 
 
 Yoii are instructed, that a conveyance of property made in 
 good faith to j)ay an Jionest debt, is not fraudulent, though tlie 
 debtor be insolvent and the creditor is aware, at tlie time of 
 the sale, that it will have the effect of defeating other creditors 
 in the collection of their debts. 
 
 In order to avoid the conveyance on the ground of fraud, 
 there nuist be a real design on the part of the debtor to pre- 
 vent the application of his property, in whole or in part, to 
 the satisfaction of his debts. A creditor violates no rule of 
 law when he takes payment or security for his demand, if done 
 in good faith, though others are thereby deprived of all means 
 of obtaining satisfaction of their equally meritorious claims. 
 Gray vs. -6^^;. John, 35 111., 222. 
 
 § 19. Sale on Credit. — The jury are further instructed, as a 
 matter of law, that in the case of an absolute and uncondi- 
 tional sale of goods, the fact that the vendor was indebted at 
 the time, that the sale was on credit, and that notes taken for 
 the nnpaid price were to be used in the payment of his debts, 
 will not alone establish fraud in such sale as against his cred- 
 itors. Miller et al. vs Kirhj, 74 111., 242. 
 
 § 20. Debtor may Prefer a Creditor. — That a debtor may pre- 
 fer one creditor, paying him in full, thus exhausting his whole 
 property, leaving nothing for his other creditors. He may, 
 a^so, partially pay a portion of his creditors in unequal pay- 
 ments, and wholly neglect his other creditors, and j-et the law 
 will not disturb such disposition of his property, if done in 
 good faith. 
 
 You are further instructed, as a matter of law, that a debtor 
 in failing circumstances has a right to prefer one creditor to 
 another, and to pay one creditor with goods obtained on credit 
 from another creditor. 
 
 And in this case, if you believe, from the evidence, that M. 
 was lawfully indebted to defendant, and finding that he could 
 not pay all his debts, transferred the goods in controversy to
 
 222 FEAUDS ACTAI^'ST CREDITORS. 
 
 defendant, in payment, or in part payment, of sncli indebted- 
 ness, then, upon tlie question of the ownership of the goods, 
 you should find a verdict for the defendant, unless you fur- 
 ther believe, from the evidence, that the defendant had notice 
 of the fraud practiced by M. in obtaining possession of the 
 goods, if such fraud has been proven. Butters vs. Ilaughwout, 
 42 111., 18. 
 
 § 21. Preferring Wife as Crelitor. — A husband indebted to 
 his wife, may prefer her to his other creditors, and make a 
 valid appropriation of his property to pay her claim, even 
 though he is thereby deprived of the means to pay other 
 debts. Ferguson vs. Spear, 65 Me., 277; Il'dl vs. Bowman, 
 35 Mich., 191. 
 
 § 22. Purchaser must be Chargeable with Notice of Fraud. — 
 
 The jury are instructed, as a matter of law, that it is not 
 sufficient, to vitiate a sale of personal property, that it was 
 made by the vendor to hinder, delay or defraud his creditors. 
 In order to vitiate such sale as against the purchaser, he must 
 have had knowledge or notice of such intent on the ]»art of 
 the seller. Miller vs. Kirhj, 74 111., 242; Batch vs. Jordan, 
 74 111., 414; Preston vs. Turner^ 36 la., 671; Drummond vs. 
 Couse et al., 39 la., 442. 
 
 The court instructs you, that while our statute declares, 
 every sale or assignment which is made with intent to defraud, 
 hinder or dela}'- creditors in the collection of their debts void, 
 still such sale or assignment will not be void as against the 
 purchaser, unless he knew, or had good reason to suppose, 
 that the sale was made by the seller \\\i\\ intent to defraud his 
 creditors, or to hinder or delay them in the collection of their 
 debts. Bump on Fraud. Con v., 195; Preston vs. Turntr, 39 
 la.. 671; Gentry vs. Robinson, 15 Mo., 260; Lipperd vs. 
 Edwards, 39 Ind., 165; Ilicls vs. Stone, 13 Minn., 434. 
 
 You are further instructed, that althonghthey may believe, 
 from the evidence, that A. B. sold the j>roperty in controversy 
 to the plaintiff for the purpose of hindering or delaying his 
 creditors, still, if you further believe, from the evidence, that 
 the plaintiflp, at the time of the purchase, had no notice or 
 knowledge of such purpose, then the sale would not be fraud-
 
 FEAUDS AGAINST CKEDITOKS. 223 
 
 u]ent or void, as to the plaintiff, by reason of the fraudulent 
 intent on the part of the said A. B. 
 
 You are instructed that to impeach a sale of personal prop- 
 erty upon the ground of a fraudulent intent on the part of 
 the seller, it is not necessary to establish a fraudulent intent 
 on the part of the purchaser; it will be sufficient if the 
 evidence shows that he knew of the fraudulent intent of the 
 seller, or had notice of such facts as would have put a man of 
 ordinary prudence upon inquiry, which would have led to a 
 knowledge of the fraudulent purpose of the seller. Jones vs. 
 Iletherlngtoyi, 45 la., 68 1; Zuver vs. Lyons, 40 la., 510. 
 
 § 23. Creditor not Affected by Knowledge, Wlien. — The jurv 
 are instructed, that wlien a person purchases goods witli the 
 knowledge that his vendor intends by the sale to defraud his 
 creditors, or to hinder and delay them in the collection of their 
 debts, such purchaser will not be affected if he takes the 
 goods, in good faith, in payment of an honest debt. A cred- 
 itor violates no rule of law when he lakes payment of his debt, 
 though he knows that other creditors are thereby deprived of 
 all means of obtaining satisfaction of their own equally mer- 
 itorious claims. G7Xiy vs. St. John, 35 111., 222. 
 
 § 24. What is Sufficient Notice of Fraudulent Intent. — The court 
 instructs the jury, that when a transfer of property is made, 
 with intent on the part of the person making it to hinder, delay 
 or defraud his creditors, and the party to whom the transfer 
 is made has knowledge of facts and circumstances from which 
 such fraudulent intent might reasonably and naturally be 
 inferred, by an ordinarily cautious person, then such transfer 
 is fraudulent and void as against the rights of the creditors. 
 Boies vs. Henney, 32 111., 130. 
 
 § 25. Honest Intent Presumed.— The court instructs the jury, 
 that the law presumes that all persons transact their business 
 honestly and in good faith, until the contrary appeal's, from a 
 preponderance of the evidence; and the burden of proving 
 fraud is always on the i^arty alleging it. 
 
 You are instructed, that all persons are presumed to be 
 innocent of intentional M-rong until they are proved to be
 
 224 FEACDS AGAINST CKEDITOES. 
 
 guilty; and all persons are presumed to transact their business 
 in good faith, and for a lawful purpose; and when an act can 
 as well be attributed to an honest intent and purpose, as to a 
 corrupt or unlawful one, then the jury are bound to attribute 
 the act to an honest intent and to a lawful purpose. 
 
 CHATTEL MOETGAGE AS AGAINST JUDGMENT CEEDITOKS. 
 
 Note. — The validity and legal effect of chattel mortgages are mostly 
 matters of statutory regulation. The following instructions, relating to 
 chattel mortgages, are drawn with reference to the laws of Illinois. 
 
 § 26. Good Between the Parties without Recording. — The court 
 instructs the jury, that the chattel mortgage, introduced in 
 evidence in this case, if made and received in good faith on the 
 part of the mortgagee, is sufficient to invest him with the 
 right to take the property therein described and to retain it for 
 the purpose of selling it, as provided in the mortgage, even 
 though it has not been recorded as required by law. Fuller 
 vs. Paige, 26 111., 358. 
 
 § 27. As to Creditors, Must be Acknowledged and Recorded. — 
 
 The jury are instructed, that, as between the parties to it, a 
 chattel mortgage is valid and binding without being acknowl- 
 edged or recorded, as provided by statute. 
 
 But to render a chattel mortgage valid as to third parties, 
 such as creditors and purchasers, in good faith, it must be ac- 
 knowledged before the justice of tlie peace in the town where 
 the mortgagor resides, and an entry of the mortgage, contain- 
 ing a description of the pro]oerty mortgnged, must be entered 
 on the justice's docket; and tiie mortgage must also be filed 
 for record in the office of the recorder of deeds of the county 
 where the mortgagor resides. 
 
 If the chattel mortgage is not acknowledged before a justice 
 of the peace of the town wliei-e the mortgagor resides, and an 
 entry of it made on his docket, or if it is not filed for record 
 in the office of the recorder of deeds, then, as to the creditors 
 of the mortgagor, it will be invalid, and they may levy an ex- 
 ecution on the property, as though no mortgage had been 
 made. Porter vs. Dementi 35 111., 478. 
 
 The jury are further instructed, that a chattel mortgage not
 
 FRAUDS AGA.INST CKEDITOKS. 225 
 
 acknowledojed or recorded, though obh'gatory and binding be- 
 tween the parties to it, is void as to creditors and uurciiasers 
 in good faith. Forest vq. Tink/iam, 2d IU., 1-11. 
 
 § 28. Mortgagee Must See to Statutory Retinirements. — The 
 court instructs the Jury, that it is the duty of the mortgagee to 
 see that his mortgage is entered upon the docket of the jus- 
 tice before whom it was acknowledged, and to see that a cor- 
 rect description of the property covered by the mortgage is 
 entered upon the justice's docket; otherwise, if the property? 
 or any portion of it, is incorrectly or erroneously described on 
 the docket, in any material particulai-, the mortgage itself will 
 be invalid, as against purchasers and creditors, so far as the 
 misdescription extends. 
 
 It is the business of the mortgagee to see that all these 
 requisites to the validity of the mortgage are complied with, 
 for the omission to do so will be at his peril. 
 
 § 29. Acknovvledgraent and Recording, How Proved. — The 
 
 court instructs the jury, that the certificate of the justice of 
 the peace, indorsed on the mortgage, \'& jprhna facie evidence 
 that the mortgage was duly acknowledged before such justice, 
 and entered upon his docket as required by law. And the cer- 
 tilicate of the recorder, indorsed on the mortgage, is 'priina 
 facie evidence that it was duly recorded at the time therein 
 stated. 
 
 § 30. Mortgagee Must Take Possession of the Property, When. 
 
 — The court instructs the jury, that the law requires a person 
 having a chattel mortgage on property, in order to hold the 
 property as against innocent purchasers and creditors, to take 
 possession of the property, under the mortgage, as soon as it 
 can reasonably be done, after the debt which it is made to 
 secure becomes due. If there is any unnecessary delay in tak- 
 ing such possession of the property, then the property will be 
 liable to be levied upon, or sold as the property of the mort- 
 gagor. Barbour vs. White^ 37 111., 161:. 
 
 § 31. Fraudulent Mortgage Void. — In determining the ques- 
 tion, whether the mortgage in this case was made in good 
 15
 
 226 FRAUDS AGAINST CREDITORS. 
 
 faith, the jury should take into consideration all the facts 
 and circumstances prove 1 on the trial; and if the jury believe, 
 from all the evidence in the case, that the mortgage was not 
 made in good faith, or for a valuable consideration, but was 
 made for the purpose of covering up the property of the 
 mortgagor, so as to keep it from his creditors, then these 
 facts would render the mortgage f]-andulent and void, as to 
 third persons having claims or liens on the property covered 
 by the mortgage. 
 
 That although 3'ou may believe, from the evidence, that the 
 mortgagor was indebted to the plaintiff, to the amount of the 
 debt mentioned in the mortgage, at the time the same was 
 made, still, if you further believe, from the evidence, that 
 the parties to the mortgage put a much larger amount of 
 property in the mortgage than was reasonably necessary to 
 secure the said debt, and that such excess of property was put 
 into the mortgage by the parties thereto for the purpose of 
 covering the same up, and with an intent to hinder, delay (ir 
 defraud the creditors of said mortgagor in the collection of 
 their debts, these facts would render the said mortgage void 
 as to such creditors, and you should find for the defendant. 
 
 § 32. Note for More than Amount Due. — Although the jury 
 may believe, from the evidence, that there was a good con- 
 sideration for the said note, to the extent of 8125, still, if the 
 jury further believe, from the evidence, that there was no 
 consideration for more than that amount, and that the said 
 note and chattel mortgage were given for a greater amount 
 than was due, for the purpose of defrauding, hindering and 
 delaying creditors of the said mortgagor, then the said note 
 and mortgage are wholly void, and confer no right whatever 
 
 upon the said, etc., not even for the §125. See Hoey vs. 
 
 Plerro)i, 67 Wis., 262. 
 
 § 33. 3Iortga;2;e of Stock of Goods. — The court instructs the 
 jury, that a chattel mortgage of a stock of goods, used in the 
 way of retail trade, and where the mortgagor is allowed to 
 continue in the possession of the property, and to sell the 
 goods in the usual course of trade, is, in law, fraudulent and 
 void, as against the creditors of the mortgagor, no matter
 
 FRAUDS AGAINST CREDITORS. 227 
 
 wliotlicr tlie parties intended any actual fraud or not. Davis 
 vs. Hansom, 18 111., 39!; Cheatham vs. IJawHns, 80 X. C, 
 161; Peiser vs. Peticolas, 50 Tex., 638; Anderson y&. Patter- 
 son^ 6-1 Wis., 557. 
 
 § 34. Eoth Parties Must Intend the Fraud. — Although tlie 
 jury may believe, from the evidence, that the said A. 13. made 
 the chattel mortgage, with intent to defraud, hinder or delay 
 his creditors, still, if the jury further believe, from the evi- 
 dence, that the plaintiff was not a party to such fraud, and had 
 no notice or knowledge of such fraudulent intent, but took 
 the mortgage in good faith and to secure a bona fide indebted- 
 ness, then the plaintiff will in no manner be aft'ected by the 
 fraudulent intent and purposes of the said A. B. 
 
 If you further believe, from the evidence, that the mort- 
 gage was acknowledged before a justice of the peace of the 
 town, in which the mortgagor lived at the time, and that it 
 was entered upon his docket, and then filed for record in the 
 recorder's office of this county; and further, that it was so 
 filed before the execution in /question came into the hands of 
 tiie officer (o/" loas levied on the pro2)ertij),l\\Qn you should find 
 the property in the plaintiff. 
 
 § 35. Good Faith, How Proved. — The court instructs the 
 jury, that in order to prove the good faith of the note and 
 mortgage, it is not necessary for the mortgagee to show the 
 consideration by those who saw the same paid or delivered. 
 It may be shown by the proof of facts and circumstances 
 which indicate good faith and valuable consideration. 
 
 § 36. Intent to Defraud Must Exist at Time of, etc. — To ren- 
 der a chattel mortgage fi-audulent, the intent to defraud must 
 exist when the mortgage is made. The mortgagor's subse- 
 quent conduct in dealing with the property, while it may be 
 considered by the jury in determining whether there was 
 fraud in the making of the mortgage, will not itself ]-ender 
 the mortgage void. Ilorton vs. Williams, 21 Minn., 187. 
 
 § 37. Subsequent Acts will not Render Void. — If the jury 
 believe, from the evidence, that the chattel mortgage in ques-
 
 228 FRAUDS AGAINST CEEDITOKS. 
 
 tion was ori,o-inallj made in good faith, and to secure a l>ona 
 fide indebtedness, tlien the mode of sale under the mortgage, 
 or the disposition of the property remaining after payment of 
 the indebtedness secured by the mortgage, can have no effect 
 to render the mortgage itself invalid or fraudulent, at the 
 time it was made. 
 
 § 3S. Sale by Mortgagor. — If the jury believe, from the 
 evidence, that the chattel mortgage introduced in evidence 
 was made in good faith, and to secure a hona fide indebted- 
 ness, then, even though the jury should further believe, from 
 the evidence, that the mortgagor, from time to time, sold off 
 certain portions of the property, with the knowledge and con- 
 sent of the mortgagee, these facts alone would not render the 
 mortgage void as to the balance of the property. Jaffray vs. 
 Greenbaum, 64 la., 492. 
 
 § 39. Mortgage to Secure Future Advances. — The court 
 instructs the jury, that a chattel mortgage, made in good 
 faith, to secure an existing indebtedness, and also further 
 advances, may be a good and valid mortgage. It is not essen- 
 tial to the validity of such a mortgage that it should show, on 
 its face, that it was made in part to secure such future advances. 
 Bump on Fraud. Conv., 229; Speer vs. Skinner^ 35 111., 282 ; 
 Miller vs. Locl'ioood, 32 Is". Y., 293; Shirras vs. Craig, 7 
 Cranch, 34; Tulley vs. JJarlow, 35 Cal., 302; Broion vs. 
 Kiefer, 71 K Y., 610. 
 
 If yoti belie\'e, from the evidence, that the note and mort- 
 gage in this case, were given to secure an actual indebtedness 
 existing at the time, as well as to secure furtlier advances, 
 loans or credits, contemplated by the parties at tlie time the 
 morti^age was made, then the fact that the note and mort- 
 gage were made for more than was actually due at the time, 
 does not alone render them void. 
 
 You are instructed that although the taking of the mort- 
 gage by the mortgagee for a greater amount than was actually 
 due may be regarded as one of the badges of fraud, yet this 
 fact alone does not render the mortgage fraudulent or void, if 
 no fraud was really intended. Pilie vs. Colvin, 67 111., 227. 
 
 If you believe, from the evidence, that the consideration
 
 FRAUDS AGAINST CREDITORS. 229 
 
 of tlie note and mortgage in question, was, in part, a former 
 indebtedness, due from the mortgagor to the mortgagee, and 
 in part for money loaned at tlie time they were given, and in 
 yiavt to secure future advances agreed to be made by the mort- 
 gagee to the mortgagor, this would not render the mortgage 
 void, if made in good faitli, and not to hinder, delay or 
 defraud creditors. 
 
 § 40. Possession by the Mortgagee. — If the jury believe, froin 
 the evidence, that the mortgagee had taken possession of the 
 property in question under the mortgage, and was in posses- 
 sion of it at the time the attachment writ was levied, then it is 
 immaterial whether the mortgage was recorded or acknowl- 
 edged before the justice of the peace in the town where the 
 mortgagor lived. 
 
 If you believe, from the evidence, that the mortgage in- 
 troduced in evidence in this case, was made in good faith, and 
 given for a good and valuable consideration, and that the 
 mortgagee had taken the property, and was in possession of it 
 under the mortgage when the attachment writ (or execution) 
 was issued and levied, then the mortgagor had but a right of 
 redemption in the property, and this right would not be sub- 
 ject to be taken by the creditors of the mortgagor, unless they 
 first paid to the mortgagee the amount of his claim against 
 the property. Nash vs. Normeiit^ 5 Mo. App., 5-15. 
 
 § 41. Possession by the Mortgagor after Default. — The jury 
 are instructed, as a matter of law, that when mortgaged chattels 
 have been reduced to possession, after default, and tlie title 
 has become absolute in the mortgagee, he may then loan the 
 property to the mortgagor, precisely as he nn'ght any of his 
 otiier property, and such repossession by the mortgagor would 
 not render the mortgage, or tlie mortgagee's title under it, 
 fraudulent or void as to creditors. Furik vs. Staats, 24 111., 
 632. 
 
 § 42. Mortgage to Secure Contingent Liability. — Although the 
 jury may believe from the evidence that the said A. B. was 
 not indebted to the ])laintift" at the time he made the mortgage 
 in question, still if the jury further believe from the evidence
 
 230 FEAUDS AGAINST CREDITORS. 
 
 that at tliat time the plaintiff was security for the said A. B. 
 as (a giiaraiitor) on certain notes, etc., and that the said chattel 
 nrortii'ago was in good faith given to secure the said plaintiff 
 against his contingent liability as such guarantor, then the 
 said mortgage would be a good and valid security in favor of 
 said plaintiff'. Goodheart vs. Johnson, 8S III., 58. 
 
 § 43. Taking Possession before Debt Due. — The jury are in- 
 structed that under the mortgage introduced in evidence it 
 was competent for the defendant to take possession of and sell 
 the mortgage property at any time when he should deem him- 
 self insecure, notwithstanding the debt had not matured or be- 
 come due and jmyable, and if the jury believe, from the evidence, 
 that tlie property in question was embraced in the mortgage, 
 and that the defendant, when he took the property in good 
 faith, deemed himself insecure, then he had a right to take the 
 |>roperty, when he did take it, and on that point the jury 
 should find for the defendant. Evan vs. Graham, 50 "Wis., 
 450. 
 
 § 44. Sale by Mortgagor for Benefit of Mortgagee. — Althougli 
 the jury may believe from the evidence that after the said 
 mortgage was given the mortgagor was permitted by the 
 plaintiff to sell and dispose of portions of the pro pei'ty covered 
 by the mortgage, still this would not render the mortgage void 
 as to the creditors of the mortgagor, provided the jury further 
 believe, from tlie evidence, that the said A. B. was actually in- 
 debted to the plaintiff — that the mortgage was made in good 
 faith to secure such indebtedness and that the permission by 
 the plaintiff to sell such propei'ty was given in writing and 
 only u])on condition that the avails of such sales should be 
 turned over to the plaintiff to be used in discharge of the in- 
 debtedness secured by the mortgage. Goodheart vs. Johnson, 
 88 111., 58.
 
 CHAPTER XXII. 
 FRAUDS, FALSE EEPRESENTATIONS, ETC. 
 
 Sec. 1. False representations. 
 
 2. Proof of fraud. 
 
 3. Fraud is never to be presumed. 
 
 4. Degrees of proof required. 
 
 5. Representations must be of the past or present. 
 
 6. Must be designed to injure. , 
 
 7. Injury must be shown. 
 
 8. Scienter must appear from the evidence. 
 
 9. Expressions of opinion, bragging, etc. 
 
 10. Representation as to law. 
 
 11. Mere silence is not fraud, when. 
 
 12. Purchaser knowing himself insolvent. 
 
 13. Purchase with intent not to pay. 
 
 14. Drawing check without funds. 
 
 15. Sale of personal property — Concealed defects. 
 
 16. Purchaser must exercise reasonable care. 
 
 17. Contract procured by fraud. 
 
 18. Stating as true — When a party has no reason for belief, etc. 
 
 19. Suit for fraud, what must be proved. 
 
 20. All the representations need not be proven. 
 
 21. Action not on the contract. 
 - 22. Co-defendant not guilty. 
 
 23. Sales — Procured by fraud. 
 
 24. Right to rescind. 
 
 25. Sale not void, but voidable. 
 
 26. Contract may be ratified, how. 
 
 27. What is a ratification. 
 
 28. Innocent purchaser from fraudulent vendee. ' 
 
 29. Purchaser without notice. 
 
 30. Transferred in payment of debt. 
 
 31. Attaching or execution creditor. 
 
 32. Purchaser must exercise reasonable caution. 
 
 33. Only bound to exercise reasonable caution. 
 
 § 1. False Representations. — The court instructs the jury, as 
 a matter of law, that if one person represents to another as 
 true that which he knows to be false, and makes the represen- 
 tation in such a waj and under sucli circumstances as to induce 
 
 (231)
 
 232 FRAUDS, FALSE EEI'EESENTATIOKS, ETC. 
 
 a reasonable man to believe that tbe matter stated is true, and 
 the representation is meant to be acted upon, and the person 
 to whom the representation is made, believing it to be true, 
 acts npon the faith of it, and suffers damage thereby, this is 
 fraud sufficient to sustain an action for deceit. 2 Hill on Torts, 
 13S; Coolej on Torts, 175. 
 
 § 2. Proof of Fraud. — The court instructs the jury, that 
 while fraud is not to be pi-esumed without proof, yet fraud, 
 like any other fact, may be proved by proving circumstaiices 
 from which the inference of fraud is natural and irresistible; 
 .ind if such circumstances are proved, and they are of such a 
 character as to produce, in the mind of the jury, a conviction 
 ')f the fact of fraud, then it must be considered that fraud is 
 proved. Cooley on Torts, 475; Watkins vs. Wallace, 19 
 Mich., 57; Da?iiel vs. Baca, 2 Cal., 326; Waddingham vs. 
 Loiker, 44 Mo., 132; Strausi vs. Kranert, 56 111., 254; Bumpus 
 vs. BunJtUs, 59 Mich., 95. 
 
 That while it is true the law never presumes fraud without 
 some evideuce of it, yet in order to show fraud, direct and 
 positive proof is not required; the jury may infer fraud from 
 the circumstances proved by the evidence, if, in the mind of 
 tlie jury, they are such as to show that a fraud was practiced, 
 as charged in the declaration. 
 
 The jury are instructed, as a matter of law, that fraud may 
 be proved by circumstantial evidence, as well as by direct and 
 positive proof. It may be inferred from strong presumptive 
 circumstances. And if the jury believe, from all the evidence 
 in this case, that {repeating the charges in the declaration), 
 then the jury should tind for the plaintiff. 
 
 § 3. Fraud is Never to be Presumed, but must be affirm- 
 atively proven by the party alleging the same. The law pre- 
 sumes that all men are fair and honest — that their dealings are 
 in good faith, and without intention to disturb, cheat, hinder, 
 delay or defraud others; where a transaction called in question 
 is equally ca])aiye of two constructions — one that is fair and 
 lionest and one that is dishonest — then the law is that the fair 
 and honest construction must ])revail and the transaction called 
 in(]uestion nuist be presumed to be fair and honest. Schroeder 
 vs. WaUh, 120 111., 410.
 
 FKAUnS, FALSE KEPEESENTATIONS, ETC. 266 
 
 § 4. Degree of Proof Requirod. — -That Avliile it is true that 
 the party alleging fraud must prove it, yet, in a civil action 
 like this, the party alleging the fraud is not bound to prove it 
 beyond a reasonable doubt. It is sutRcient if the fact of fraud 
 is establisiied, in the minds of the jury, by the greater weight 
 of the evidence. If, after a consideration of all the facts and 
 circumstances proved, the jury believe, from the evidence, the 
 defendant was guilty of the fraud, as charged in the declara- 
 tion, and that the plaintiff has sustained damage thereby, they 
 should lind the issues for the plaintiff. 
 
 , § 5i Representations must be of the Past or Present. — The 
 
 jhi-y are instructed, that before a party can annul or treat a 
 contract as void, by reason of alleged false or fraudulent rep- 
 resentations used in procuring it to l3c made, it must appear, 
 from the evidence, that the alleged false or fraudulent repre- 
 sentations were made regarding something which has already 
 transpired, or was then alleged to exist. No statement of one's 
 opinions as to what will or will not happen, or exist, in the 
 futui'e, can affect a contract or render it void. Every j:)crson, 
 in making a contract, is at liberty to speculate or express 
 opinions as to future events, and he cannot be held to answer 
 for their truth or falsity. Cooley on Torts, 483, 4S6; Payne 
 vs. /S'm^■^;^, 20 Ga.j 654; Eeed \&. SkJener,2>'i Ind., 373; Bristol 
 vs. Braidwood^ 28 Mich., 191; Tuck vs. Downing^ 76 111., 71. 
 
 § 6. Must be Designed to Injure. — The jury are instructed, 
 that in order to constitute actual fraud there must be contriv- 
 ance and design to injure anotlier. Actual fraud is not to be 
 presumed, but it must be proved by the party alleging it, by a 
 preponderance of evidence; and although actual fraud may be 
 ])roved by proof of facts and circumstances tending to show 
 fraud, still, if the motive and design of an act can as well be 
 traced to an honest and legitimate source as to a corrupt or 
 dishonest one, the former must always be preferred. 
 
 § 7. Injury Must be Shown, — The jury are instructed, that 
 in order that the defendant may avail himself of the defense 
 of fraud, set up in the pleas in this case, the jury must be- 
 lieve, from the evidence, not only that the statements and
 
 2 3 J: FEAUDS, FALSE EEPEESENTATIONS, ETC. 
 
 representations set forth in said pleas were made, but also tliat 
 such statements and representations were false — that they 
 were made with intent to deceive and defraud the defendant 
 — that the defendant was induced thereby to enter into the 
 contract, and that he has snstained damage by reason thereof, 
 Mitchell vs. Deeds, 49 111., 410; Cole vs. Miller, CO Ind., 
 463. 
 
 The court instructs you that a mere fraudulent representa- 
 tion is not of itself actionable. To entitle the plaintiff to 
 recover, he must not on!}'- show, by preponderance of evi- 
 dence, that the representations were made, and that they were 
 fal.<e and fraudulent, but he must also show affirmatively, by a 
 preponderance of evidence, that he has been injured thereby 
 — that lie is in some way placed in a worse condition than he 
 would have been had the statements been true. Bartlett vs. 
 Blaine, 83 111., 25. 
 
 § 8. Scienter Must Appear from the Evidence .^ — The jury are 
 instructed, that while fraud vitiates every contract, every 
 false affirmation does not amount to fraud. To constitute 
 fraud, a knowledge of the falsity of the representation must 
 rest with the ]xarty making it, and the representatiim must 
 be made with the intention that the other party shall act upon 
 it, and it must also appear that the other party did act u]ion 
 the representation, to his injury. Walker vs. Hough, 59 111., 
 375; Dwight vs. Chase, 3 111. App., 67. 
 
 § 9. Expression of Opinion, Bragii^ing, etc.— The jury are 
 instructed, that a purchaser cannot maintain an action against 
 his vendor for false statements in regard to the value of the 
 property purchased, or its good qualities, or the price he has 
 been offered for it. Dillnmn vs. Nadelhoffer, 19 111. App., 
 375. 
 
 That when a party, capable of taking care of his own inter- 
 ests, makes a bad or losing bargain, the law will not assist him, 
 unless deceit has been practiced, against which ordinary care 
 could not protect him. Hoetling vs. Wright, 72 111., 390; 
 Reel vs. Eioing, 4 Mo. App., 569; Livingston vs. Stro/ig, 107 
 111, 295. 
 
 You are instructed, that when parties are negotiating a trade
 
 FEAUDS, FALSE KEPKESENTATIONS, ETC. 235 
 
 for ]';ro!;ertj, wliicli tlierc is an opportunity for examinin^j 
 each lias a right to exalt the value of his own property to the 
 highest point the other party's credulity will bear, and dejn'e- 
 ciate the value of the other's property. Such boastful asser- 
 tions, or highly exaggerated descriptions, do not amount to 
 fraudulent misrepresentation or deceit. In such case, the 
 parties are npon equal groimd, and their own judgments must 
 be their guide in coming to conclusions. Couley on Torts, 
 483; Payne vs. Smith, 20 Ga., 654; Bristol vs. Braidwood, 28 
 Mich., 191; Miller vs. Craig, 30 111., 109; Reed vs. Sidener, 
 
 32 Iiid., 373; iLllis vs. Andrews, ^Q N. Y., 83; Bante vs. 
 Savage, 12 N"ev., 151. 
 
 All statements by a vendor of the value of property sold, 
 are not necessarily matters of opinion; if the vendor, know- 
 ing them to be untrue, makes thein with the intention of mis- 
 leading the purchaser, and of inducing him to forbear making 
 inquiries as to the value of the propertj^; and if the vendee 
 has not equal means of knowledge, and is induced by the state- 
 ments of the vendor to forbear making inquiries which he 
 otherwise would have made, and, relying on such statements, 
 is misled, to his injury, he may avoid the contract or recover 
 damages for the injury. Slmar vs. Canada f/, 53 N. Y., 298 ; 
 JVoiolin vs. Snow, 40 Mich., 699 ; Bacon vs. J^'risbie, 15 Ilun 
 (N. Y.), 26. 
 
 § 10. Representation as to the Law. — That a representation 
 as to what the law will or will not permit to be done, or a 
 representation regarding the legal rights of a party, is one 
 upon which the party to whom it is made, has no right to 
 rely; and if he does so, it is his own folly, and he cannot ask the 
 law to relieve hira from its consequences. J^tsh vs. Clelland, 
 
 33 111., 238; Tounsend vs. Cowles, 31 Ala., 428; People vs. 
 Supervisors, etc., 27 Cal., 655; Rogers vs. Place, 29 Ind., 577; 
 Upton vs. Tribilcoclc, 91 U. S. Rep., 45-49; Am. Ins. Co. vs. 
 Capps, 4 Mo. App., 571. 
 
 § 11, Mere Silence is not Fraud, AVhen. — That mere silence or 
 a failure to communicate facts within the sellers knowledge, 
 is not such a fraud as will avoid a contract, or render the seller 
 liable. To have that effect, there must be some conceal-
 
 236 FKATJDS, FALSE EEPEESENTATIONS, ETC. 
 
 meni, as bj witliliolding information when asked, or usinsj 
 some trick or device to mislead the purchaser. The seller 
 may let the purchaser cheat himself, if he sees fit to do so, 
 but he must not assist him, even to cheat himself. Kohl vs. 
 Lhidley, 39 111., 195. 
 
 § 12. Piirdiaser Knowing Himself Insolvent. — The jury are 
 instructed, that although they may believe, from the evidence, 
 that the defendant, at the time he purchased the goods in 
 question, was insolvent and knew himself to be so, and did 
 not disclose that fact to tlie person of whom he purchased the 
 goods, still the defendant would not be guilty of fraud so as 
 to vitiate the contract of sale; provided, the jury further 
 believe, from the evidence, that he then intended to pay for the 
 goods, and had reasonable grounds for believing that he 
 would be able to do so. Talcott vs. Ileaderson, 31 Ohio St., 
 162. 
 
 § 13. Piircliase with Intent not to Pay. — The jury are 
 instructed, as a matter of law, that in order to render a pur- 
 chase of propei'ty fraudulent, as between the parties, it is not 
 necessary that there should have been any false representa- 
 tions made by the purchaser to effect his purpose. If the 
 jniy believe, from the evidence, and fj'om the facts and cir- 
 cumstances proved on the trial, that the purchase in question 
 was made by the purchaser with the intention not to pay for 
 the property, then the transaction was fraudulent and void, 
 and vested no title in the purchaser. Cooley on Torts, 477; 
 Bowen vs. Sehiile7\ 41 111., 192; Shipinaoi vs. Sei/mou?; 4 
 Mich.j 274; Flower vs. Farewell, 18 III. App., 254. 
 
 § 14. Drawing Check withont Funds. — The jury are in- 
 structed, that a person who draws a check or order upon a 
 person in whose hands he lias no funds, and who he has no reason 
 to believe will honor the check or order, is guilty of fraud; 
 and if he thereby acquires possession of property, the owner 
 may repudiate the sale, and bring trover or replevin for the 
 property so obtained. Mathews vs. Cowan^ 59 111., 341. 
 
 § 15. Sale of Personal Property — Concealed Defects. — If the
 
 ., ._.. ..._._,..._., ^:r 
 
 FEAUDS, FALSE KEPEESENTATIONS, ETC. 
 
 jury believe, fi-om the evidence, that the ]ilaintifl: bon<>'ht the 
 horse in question from the defendant, and that the defendant 
 shortly befi>re, and at the time of the sale, stated and repre- 
 sented to the ]ilaintiff that the horse was sound and true, and 
 that the ]ilaintitf believed such statements and ro])rescntations, 
 and relied ui)on them in making the purchase; and if the jury 
 further believe, from the evidence, that at the time such 
 representations and sale were made, the said horse was not 
 sound, but then had a concealed disease or defect, which ren- 
 dered him unsound, and which could not be perceived by 
 ordinary skill or observation at the time, but which was known 
 to the defendant, then the defendant will be liable to tlie 
 plaintiff for the damages sustained by him by reason of such un- 
 soundness, if any has been shown by the evidence. 
 
 § 16. Purchaser Must Exercise Reasonable Care. — The jury 
 are further instructed, that if they believe, from the evidence^ 
 that the defect complained of was of such a nature and size, 
 and so obvious and visible to the senses that it could have been 
 discovered by the exercise of ordinary care and diligence, in 
 looking at and examining the horse, then the defendant is not 
 liable in this suit, unless the jury further believe, from the 
 evidence, that the defendant used some artifice or trick to 
 prevent the plaintiff from seeing or discovering the defect. 
 Ward vs. Borl:enhagen, 50 Wis., 4.59. 
 
 § 17. Contract Procured by Fraud. — If the jury believe, 
 from the e\'idence, that any untrue statements, as to the then 
 market value of [live hogs) in the ( Chicago) market, were 
 made by tlie plaintiffs, or by their agent, as an inducement to 
 the defendant to enter into the contract in question, and that 
 the defendant relied upon such statements, and was induced 
 thereby to enter into the contract, then such contract is void- 
 able as against the defendant, and it cannot be enforced as 
 ag-ainst him. 
 
 If you believe, from the evidence, that the parties made the 
 contract, as alleged by the plaintiffs, still, if you further be- 
 lieve, from the evidence, that at the time of the making of 
 the contract the plaintiffs, or either of them, willfully and 
 knowingly, by untrue statements, deceived the defendant in
 
 238 FKAUDS, FALSE KEPKESENTATIONS. ETC. 
 
 reo-ard to the then market vahie of the property in question, 
 as an inducement to him to enter into the contract, and that 
 the defendant, nnder the circumstances, was justified in rely- 
 ing upon the statements made to him. and did rely upon them 
 in entering into the contract, then the defendant cannot be 
 held to the performance of such contract, and your verdict 
 should be for the defendant. 
 
 § 18. Stating as True — When a Party has noRea«5on for Balief, 
 etc. — The court instructs the jury, that any willful misrei)re- 
 sentation of a material fact, made with a design to deceive 
 another, and to induce him to enter into a trade he would not 
 otherwise make, will enable the party wlio has been over- 
 reached to annul the contract; and it niakes no ditference 
 whether the party making the misrepresentation knew it to be 
 false or whether he was ignorant of the facts stated ; pro- 
 vided, the matter stated was material, and the party making 
 the statement stated it as true, when, in fact, he had no 
 apparently good reason for believing it to be tr e, and when 
 the other party, under the circumstances shown by the evi- 
 dence, was reasonably justified in relying upon the statement, 
 and did rely upon it in making the trade, and was deceived 
 and injured thereby. Cooley on Torts, 500; Beebe vs. Kiiapp, 
 28 Mich., 53, T6; Alloi vs. Eart, 72 111., 104; Litchfield vs. 
 Hutchinson, 117 Mass., 195. 
 
 That material representations, made by a vendor, of matters 
 assumed by liim to be within his personal knowledge, are false 
 and fraudulent, in a legal sense, if made with intent to de- 
 ceive the vendee, and if they are untrue, and are relied u])on 
 by the vendee in making the purchase, to his damage, altliough 
 the vendor did not know them to be untrue. Incl. P. c6 C. 
 Rd. Go. vs. Tijng, 63 N. Y., 653. 
 
 The law is, if a person recklessly makes a false representa- 
 tion of the ti'uth of a matter of which he knows notbing, for 
 the fraudulent purpose of inducing another to i-ely upon liis 
 statements, and to make a contract or do any act to his preju- 
 dice, and the other party does so rely and act upon it, and 
 thereby suffers an injury, the party making the representation 
 is liable in an action for fraud and deceit, as much so as if he 
 had known the statement to be false at the time it was made. 
 Beebe vs. K7iapp, 28 Mich., 53.
 
 FRAUDS, FALSE KEl'JaiSENTATlONS, ETC. 239 
 
 Whetlier in this case the defendant made tlie representa- 
 tions alleged, and whether they were false ; and if he did 
 make them, whether they were made for the fraudulent pur- 
 pose alleged, are questions exclusively for the jury, to be 
 determined by the weight of the evidence in the case. 
 
 § 19. Suit for Fraud — What Must be Proved. — The jury are 
 instructed, that this action is founded upon a charge of fraud 
 and deceit, and in order to constitute fraud, within the meaning 
 of the law, under the pleadings in this case, it must appear, by 
 a preponderance of the evidence, that the defendant intended 
 to commit and did commit a fraud upon the plaintiff, in man- 
 ner and form as charged in liis declaration, otherwise he can- 
 not recover, and the jury should find for the defendant. 
 
 That the plaintiff is not entitled to recover in this case un- 
 less you believe, from the evidence, that tiie defendant made 
 the representations alleged in the declaration; that such repre. 
 sentations were false; that defendant knew they were false, or 
 had no apparently good reason to believe they were true; that 
 they were made with intent to defraud the plaintiff; that 
 plaintiff was induced thereby to make the trade in question, 
 and has sustained damage by means thereof. Cooley on Torts, 
 474; JEames vs. Morgan, 37 111., 2G0; McKowii vs. Jt\irgaso)i, 
 47 la., 636. 
 
 § 20. All the Representations Need not be Proved. — To en- 
 title the plaintiff to recover in this case, it is not necessary 
 that he sliould sliow that all the representations charged were 
 made by the defendant, or, if made, that they were all untrue; 
 it is sufficient if the jury believe, from the evidence, that 
 some of the representations were made as cliarged, that they 
 were untrue and known to be so at the time by the defenduTit, 
 or that he had no good reason to suppose them to be true, that 
 they were calculated to deceive an ordinarily cautious ]:>erson, 
 and were intended by the defendant to deceive and defraud 
 the plaintiff — that without such false and fraudulent represen- 
 tations the property would not have been delivered (or the 
 credit given) and tliat the plaintiff has been damaged by the 
 fraudulent acts of the defendant. Smith vs. The Sijte, 55 
 Miss., 513; Beasley vs. The State, 59 Ala., 20.
 
 240 FRAUDS, FALSE KEi'KESENTATIOXS, ETC. 
 
 § 21. Action not on the Contract. — Tlie court instructs tlie 
 jury, that this suit is not brought upon the contract given in 
 evidence, but upon the alleged fraud and deceit set forth in 
 the declaration, and the alleged loss resulting therefrom to the 
 plaintiff; and if the jury believe, from the evidence, that the 
 defendant was guilty of the fraudulent acts set forth and 
 charged in the declaration, and that the plaintiff has sustained 
 any damage or loss by reason thereof, then the jury should 
 find the defendant guilty, and assess the plaintiff's damages. 
 
 § 22. Co-Defendant not Guilty. — Though the jury may be- 
 lieve, from the evidence, that the defendant A. B. made the 
 trade in question with intent to defraud the plaintiff, still, if 
 the jury further believe, from the evidence, that the other de- 
 fendants, or either one of them, took no part in the trade, and 
 had no knowledge of such intent, then the act of A. B, would 
 not bind such other defendant or defendants as did not take 
 part in the trade, and did not have knowledge of such intent; 
 unless it further appears, from the evidence, that such trade 
 was made in the interest of such other defendant or defend- 
 ants, or that he or they have since ratified the same. 
 
 If you believe, from the evidence, that the transaction com- 
 plained of took place between the plaintiff and the defendant 
 A. B., and that the other defendants had no part in or knowl- 
 edge of the transaction when it occurred, and no interest 
 therein, and have not since ratified or a])]iroved of the act, as 
 explained in these instructions, then such other defendants 
 cannot be made liable for the acts of the said A. B. 
 
 § 23. Sales — Procured by Fra'.id. — The court instructs the 
 jury, as a matter of law, that actual fraud vitiates and will 
 render void, at the election of the party injured, all contracts; 
 and a fraudulent ]nirchaser acquires no title to goods procured 
 through fraudulent representation. 
 
 And if a purchase of goods is effected by means of false and 
 fraudulent representations on the part of the ]Hirchaser, known 
 by him to be false, and which are relied ui)on by the sellei", 
 and but for which he would not have made the sale, then the 
 seller docs not, as against the purchaser, lose his title to the 
 goods, and he may bring trover or re])levin for them against 
 the purchaser, without first making a demand for them.
 
 FRAUDS, FALS7<: REPRESENTATIONS, ETC. 241 
 
 And in sucli a case, if the purcliaser lias given a note or 
 notes for the price of the goods, the seller may bring his suit 
 witliout making a previous tender of the notes; provided, the 
 notes are produced at the trial to be surrendei-ed to the de- 
 fendant. Coghill vs. Borinq, 15 Cal., 213; Thui'ston vs. 
 Blanchard, 22 Pick., IS; Nichols vs. Michael, 23 :N". Y., 261. 
 
 § 21. Right to Rescind. — The court instructs the jury, that 
 the law is, that where a person is induced to part with his 
 property, under a contract procured by fraud, on discover- 
 ing the fraud he may avoid the contract and claim a return 
 of the property. He has his election to affirm or disaffirm 
 the contract, but if he disaffirms it, he must do so at the 
 earliest practicable moment after the discovery of the fraud. 
 Cooley on Torts, 503; Cochran vs. Stewart, 21 Minn., 435; 
 Hall vs. Fullerton, 69 111., 448; Wright ys. Pelt, 36 Mich., 
 ,213; Pearsoll vs. Chapin, 44 Penn. St., 9. 
 
 § 25. Sale not Void, but Voidable. — That fraud, in the sale or 
 purchase of personal property, does not render the transaction 
 void, but only voidable, at the option of the party defrauded. 
 The vendor, when defrauded, may either avoid the contract, 
 or he may ratify it, while the property remains in the hands 
 of the purchaser; but after the property has passed into the 
 hands of a Jyonafide purchaser from the fraudulent vendee, the 
 seller cannot reclaim the property. Mich., etc., lid. Co. vs. 
 Fhillips, 60 III, 190. 
 
 § 26. Contract May be Ratified, How. — The court instructs 
 the jury, that even when a sale of goods is procured by the 
 fraud of the purchaser, the contract of sale is not absolutely 
 void; but the contract may be either avoided or ratified by the 
 seller; and if the seller does not, within a reasonable time after 
 discovering the fraud, do some act showing an intention to 
 rescind the sale, he will be held in law to have ratified the 
 sale. 
 
 "Where a sale of goods is procured by the fraudulent repre- 
 sentations of the purchaser, the contract of sale is not abso- 
 lutely void, but it may be either avoided or ratified by the 
 seller. 
 
 16
 
 212 FKAUDS, FALSE KEPRESENTATIONS, ETC. 
 
 And in tin's case, if you believe, from the evidence, that 
 tbe plaintiffs, after the}' discovered the fraud claimed by them 
 {brought a suit against tKe purchaser for the jprice of the goods 
 sold), that would be a ratification of the sale, and the ])laintiffs 
 would not now be permitted to claim the goods, as agaiiist 
 the creditors of the purchaser, who liad had an execution lev- 
 ied upon them. 
 
 Where a ])arty undertakes to rescind the contract of sale, on 
 the ground of the fraud of the other party, he must, as soon 
 as the fraud is discovered, take all reasonable measures to 
 rescind it; and if he undertakes to rescind the contract, he must 
 rescind the whole of it, and if he has received any money, or 
 other valuable thing under the contract, he must return, or 
 offer to return the same, so as to place both parties in the same 
 condition that they were in before the sale. Cooley on Torts, 
 504; 2 Hill, on Torts, 141; Balcoek vs. Case, Gl'Penn. St., 
 427; Jeioett vs. Petit, 4 Mich., 508; Coghill vs. Boring, 15 
 Cal., 213. 
 
 § 27. "Wliat is a Ratifioation. — The jury are instructed, that 
 when a party has been induced to sell property on credit by 
 fraudulent means, he has his election either to affirm the sale 
 or to disaffirm it on the ground of fraud ; and, in such a case, 
 if the seller, with a knowledge of all the material facts affect- 
 ing his interest, takes any steps to enforce the payment of the 
 price agreed upon, or puts it out of his power to restore the 
 other party, as nearly as ])ossible, to the same position he was 
 in before the sale, he will be held to have elected to affirm the 
 sale. 
 
 § 28. Innocent Purchaser from Fraudulent Vendee. — The court 
 instructs the jury, that when a ]iei'son who has ])ni'chased goods 
 and obtained possession of them l\y false and fraudulent rep- 
 resentations, sells them to an innocent purchaser for value 
 before they are reclaimed by the vendor, such innocent pur- 
 chaser will acquire a valid title to the goods. Cochran vs. 
 Stewart, 21 Minn., 435; Ohio, etc., Rd. Go. vs. Kerr, 49 111., 
 458; 2 Hill, on Torts, 143. 
 
 When a party sells goods and delivers them to the pur- 
 chaser under circumstances which would authorize liim to
 
 FRAUDS, FA.I.SE EEPKESENTATIONS, ETC. 248 
 
 rescind tlie sale as against tlie purchaser, yet, if 1 efore tliesale 
 is rescinded the purchaser sell them or ])]edge them as secu- 
 rity for an advance of money, to an innocent party, without 
 notice of the fraud, tnich innocent party will liold the goods 
 as against the original owner. 
 
 § 29. Purchaser without Notice, etc. — The jury are further in- 
 structed, that to entitle the plaintiff to reclaim the goods from the 
 defendant, the jury must believe, from the evidence, that M. 
 obtained the goods in controversy from the plaintiff by the 
 means of false and fraudulent representations, and that the 
 defendant, at or before the time he received them from M., 
 had notice of the manner in which M. had obtained them from 
 the plaintiff, or that defendant received them from M. witliout 
 any valuable consideration ; provided, the jury believe, from 
 the evidence, that M. purchased the goods from the plaiotiflf 
 and afterwards transferred them to the defendant. 
 
 The court instructs you, tliat where ]iersonal property is 
 sold, and no time of payment is fixed by the contract, then the 
 law will imply that payment was to be made before delivery, 
 and before tlie title would vest in the imrchaser; but when a 
 purchaser acquires possession of projierty before payment, by 
 fraudulent means, and sells it to a hona fide purchaser, with- 
 out notice, for a valuable consideration, before the lirst sale it 
 avoided or the property reclaimed, then the Ijona fide pur 
 chaser will hold the pro]3erty as against the original owner. 
 
 § 30. Transferred in Payment of Debt. — That where a person 
 purchases and obtains the possession of goods by fraudulent 
 ]'ei;retentations, and then sells and delivers them to his cred- 
 itor, in ]:ayment of a pre-existing debt, and the creditor accepts 
 tliem }):)na fide and without any notice of the fraud of his 
 vendor, such creditor is a purchaser for a valuable considera- 
 tion, and in law will bo protected as such against any claim of 
 the original owner, to the same extent as if lieliad paid a new 
 consideration for the goods, at the time he purchased them. 
 
 You are further instructed, that if you believe, from the 
 evidence, that M. purchased tlie goods from the plaintiff, on 
 credit, by means of the alleged fraud, and that the defendant, 
 in good faith, received the goods from M. in payment or part
 
 21-1 FKAUDS, FALSP: KEl'KESENTATIOKS, ETC. 
 
 payment of a pre-existing debt, tlien, to entitle tlie plaintiff to 
 a verdict for the guods as against the defendant, you must fur- 
 ther believe, from the evidence, that the defendant, when he 
 received the goods, had notice that M. obtained them by means 
 of the fraud alleged. 
 
 If you believe, from the evidence, that the defendant bought 
 the goods in controversy from M. in good faith, in payment, 
 or in part payment, of a debt which M. owed defendant, and 
 without any knowledge or notice of the means by which M. 
 obtained them from the plaintiff, then, on the question of own- 
 ership of the goods, you should find for the defendant, even 
 though you should further find, from the evidence, that M. 
 had obtained the goods from the plaintiff by means of fahe 
 and fraudulent representitions, as alleged. Butters vs. Ilaugh- 
 wout, 42 111., 18. {On this point the decisions in different 
 states are not uniform.) 
 
 § 31. Attaching or Execution Creditor,— The court instructs 
 the jury, as a matter of law, that where a party sells goods 
 and delivers them, under circumstances which would authorize 
 him to rescind the sale as against the purchaser, as explained 
 in these instructions, he will have the same right, as against 
 an attaching or execution creditor of the purchaser. Schwei- 
 zer vs. Tracy ^ 76 111., 345. 
 
 § 32. Purchaser Must Exercise Reasonable Caution. — A 'bona 
 fide purchaser from the fraudulent vendee of personal proj^erty, 
 before the defrauded vendor has avoided his contract of sale, 
 will get a good title to the property. 
 
 You are instructed, that the law imposes upon one purchas- 
 ing personal property, that degree of caution and diligence in 
 ascertaining the title of his vendor, which ordinarily prudent 
 business men usually exercise under like circumstances, and it 
 charges him with constructive notice of such facts only, as by 
 the exercise of such caution and diligence he would probably 
 have discovered. Cochran vs. Stewart^ 21 Minn., 435. 
 
 Ton are instructed, that every false affirmation does not 
 amount to a fraud. If, by an ordinary degree of caution, the 
 party comi)laining could have ascertained the falsity of the 
 representations complained of, then such party is not entitled
 
 FRAUDS; FALSE KEPKESENTATIONS, ETC. 245 
 
 to a verdict; and in this case, to entitle the plaintiff to a ver- 
 dict, jou must believe, from the evidence, not only that the 
 representations complained of were made, but also that they 
 were made under circumstances calculated to deceive a person 
 acting with reasonable and ordinary prudence and caution; 
 and in determining this question, the jury should consider all 
 the circumstances under which the alleged representations ap- 
 pear, from the evidence, to have been made, and whether, un- 
 der the circumstances, the representations were such as a 
 person of common and ordinary prudence would or should 
 have relied upon or such as would be likely to mislead such a 
 person. Eames vs. 31organ, 37 111., 200. 
 
 § 33. Only Boimd to Exercise Reasonable Caution. — The jury 
 are instructed, that although a party to a contract is bound to 
 exercise reasonable care and caution to prevent being de- 
 frauded, still, if the party with whom he is dealing makes use 
 of such false and fraudulent statements, representations and 
 acts, with respect to a material inducement to the contract, as 
 are calculated to mislead a person acting with common pru- 
 dence and reasonable discretion, and such person is thereby 
 induced to enter into a contract, or to. part with propert}^ which 
 he would not otherwise have done, then the party making use 
 of such false and fraudulent statements, representations or 
 acts, cannot be heard to say that the person so deceived and 
 misled did not make such inquiries as might have resulted in 
 a discovery of the falsity of the representations.
 
 CHAPTEE XXIII. 
 
 HIGHWAYS- 
 
 Sec. 1. How created. 
 
 2. Presumption from laying out and working highway. 
 
 3. Evidence of highway, how proved. 
 
 4. Condemnation, how proved — Actual location must prevail. 
 
 5. Monuments control courses and distances. 
 
 6. Prima facie evidence of location. 
 
 7. What is meant by dedication. 
 
 8. Dedication, what constitutes. 
 
 9. Dedication must be made by the owner. 
 
 10. No particular ceremony required. 
 
 11. No specific time required. 
 
 12. Dedication must be accepted. 
 
 13. Owner must intend to dedicate. 
 
 14. Dedication binding on the owner and all claiming under him. 
 
 15. Dedication by sale of lots bounded on streets. 
 
 16. Prescription — Twenty years' user. 
 
 17. Prescription — Travel must be confined to a particular route. 
 
 § 1. How Created. — The court instructs the Jury, that a pub- 
 lic highway may be acquired by condemnation under the stat- 
 ute by grant from the owner — and after {tvnenty) years' use by 
 the public, a grant will be presumed — and by dedication to and 
 acceptance of the highway by the ])ublic; the acceptance of 
 the highway may be inferred from travel by the ])ublic, or 
 from repairs made thereon by the proper public authorities. 
 Washburn on Easements, 125; Grube vs. Nichols^ 36 111., 96. 
 
 You are instructed, that the plaintiff is at liberty to rely 
 upon establishing the existence of the road by proving either 
 a condemnation under the statute, (twentij) years' continuous 
 adverse use by the public, or dedication by the owner. And 
 if you believe, from the evidence, that the plaintiff has proved 
 the establishment of the road in controversy by either one of 
 tliese three methods, as explained in these instructions, that is 
 sufficient upon the question of the existence of the road. 
 Summers vs. The State, 51 Tnd., 201. 
 
 (246)
 
 HIGHWAYS. 247 
 
 § 2. Prpsumption fi'om Laying Out and Working Highwaj'. — 
 
 If the jury believe, from the evidence, that a public road was 
 laid out over the place in question; that it was used and 
 traveled by the public, and that it was recug-nized and kept in 
 repair as such by the public authorities for a period of {five) 
 years, or more, before the commencement of this suit, then 
 these facts furnish a presumption, liable to be rebutted by 
 proof, that such road is a public highway. Daniels vs. The 
 People, 21 111., 439. 
 
 § 3. Existence of Highway, How Proved. — The jury are 
 further instructed, that the plaintiff is not bound to rely on 
 the record of the condemnation proceeding alone to establish 
 the existence of the road in question ; it is sufficient if the 
 jury believe, from the evidence, and under the instruction of 
 the court, that there was at the time in question a legal 
 highway, as explained in these instructions, at the point in 
 question. 
 
 A public highway may exist, one part by condemnation 
 under the statute, another by prescrii)tion, which means 
 (twent>j) years', or more, continuous, adverse use, and still 
 another part of the road may exist by dedication. 
 
 § 4. Condemnation, How Proved — Actual Location Must Prevail. 
 
 — The jury are instructed, that the plat and survey of a road 
 made by tliM dii'ection of the commissioners of highways is 
 prima facie evidence of the location of the road, but it is 
 not conchisive. If the jury believe, from the evidence, that 
 the commissioners eventually staked, laid out and opened the 
 road different from the plat and survey, then the actual loca- 
 tion must be proved. 
 
 § 5. Monuments Control Courses and Distances. — The jury 
 are instructed, that the rule of law is, if there is any discrep- 
 ancy between the courses and distances, as given in the order 
 of the commissioners, and the monuments mentioned in the 
 survey of the road, or actually placed on the ground, then the 
 monuments must prevail. Daniels vs. The People, 21 111., 
 439. 
 
 The monuments and lines actually run by the surveyor in
 
 248 HIGHWAYS. 
 
 snrvejing the road, and the staking and laying ont the road 
 on the ground, must always prevail in determining the location 
 of a ro:id. The notes of survey, and tlie plat returned by the 
 surveyor are hut matters of descri]ition, which serve to assist 
 in determining the place where the road is laid, but they are 
 not conchisive. 
 
 The actual surveying, staking, laying out and viewing the 
 line of the road upon the ground where it is laid constitutes 
 the location of the road; provided the road is actually opened 
 on that line. 
 
 , If you believe, from the evidence, that the surveyor actually 
 surveyed, laid out and located the road on the ground, on what 
 is known as the (north) line, under the direction of the hii^h- 
 way commissioners, then that would be the true line, although 
 the survey and plat called for a different line. Illner vs. The 
 People, 34 111., 29T. 
 
 § 6. Prima Facie Evitlence of Location. — The court instructs 
 the jury, that the petition, report of the commissioners, the 
 survey and ])lat of the surveyor in locating the road, at the 
 time the road is alleged to have been laid out, are required, 
 by law, to ba filed in the office of the town clerk, and Avlien 
 they are so filed they become a part of the public records for 
 the use of the public. And {the copies of) all such ];a])er8 as 
 have been used in evidence in this case are prima facie evi- 
 dence of the facts stated in them respectively. II'nier\&. The 
 People, 34 111., 297. 
 
 § 7. What is IMeant by Derlication. — By dedication is meant 
 a giving and granting of a right; and before the jury can tind 
 that there is a valid road by dedication, at the point in con- 
 troversy, they must believe, from the evidence, that the owner 
 of the land intended to give, and did give, to the ])ublic a right 
 of way over the land, and that the public accepted the gift. 
 Angell on Highways, § 132. 
 
 § 8. Dedication — AMiat Constitutes. — The jury are instructed, 
 that to constitute a dedication of land for a highway, as regards 
 the general jmblic, the owner of the fee must give the right 
 of way to the public, and it must be accepted and appro pri-
 
 HIGHWAYS. 249 
 
 ated to tliat use by travel, or a recognition' of it as a public 
 highway by repairs, or otlierwise, by the pro|)er public author- 
 ities. To show a dedication, the acts of both the dunur and 
 the public authorities, in these resjiects, must concur. State 
 vs. Tucker, 36 la., 485; ^ifiJc vs. The Town of Havana^ 88 
 111., 208; Tupper vs. Hudson, 46 Wis., 646. 
 
 § 9. Dedication Must be Made by the Owner. — The Jury are in- 
 structed, tliat a primary condition of every valid dedication of 
 land to public use is that it should be made b}'- the owner of 
 the fee. No one but the owner in fee can dedicate land to 
 public use. Baugan vs. Mann^ 59 111., 492; Porter vs. Stone 
 51 la., 373. 
 
 § 10. No Particular Ceremony Required. — That no particular 
 form or ceremony is necessary in the dedication of laud for a 
 public highway; all that is required is tliat the owner shall, in 
 some manner, manifest an intention to dedicate it, and that the 
 public shall accept the dedication. Morgan vs. Railroad Co., 
 96 U. S., 716; Skrainka vs. Allen, 2 Mo. App., 387. 
 
 § 11. No Specific Time Required. — The jury are instructed, 
 tliat no specific length of possession by the public is necessary 
 to constitute a dedication of ground as a street or highway. 
 It is only necessary that the owner should manifest an inten- 
 tion to dedicate it for that purpose either by writing, by dec- 
 larations or by acts, and that the public should accept the 
 dedication as made. City Chicago vs. Wright, 69 111., 318; 
 Gentleman vs. Soule, 32 111., 271. 
 
 To efi'ect a dedication tliere must be an intention so to do, 
 and such intention may be manifested by acts and accompany- 
 ing declarations. No particular time is necessary to consti- 
 tute a dedication; it may take place immediately, if the owner 
 of the property intends it shall do so, and the public accepts it. 
 Mees vs. City Chicago, 38 111., 322. 
 
 § 12. Dedication Must be Accepted. — The jury are instructed, 
 that a dedication of land to public use may be made by verbal 
 declarations, if accompanied by such acts as are necessary for 
 that purpose; but to make a valid dedication to the public, an
 
 250 HIGHWAYS. 
 
 intention to appropriate the right to the general use of the 
 public must exist; and in order to establish a dedication of 
 land to the public for a street or highway, there must not 
 on] J be an act of dedication of the land by the owner for that 
 purpose, but there must be some proof of its acceptance as 
 such by the public, acting through the proper authorities. 
 Kennedy vs. LeVan, 23 Minn., 513; III. Ins. Co. vs. Little- 
 field, 67 111., 368; Mansur vs. Baughey, 60 Ind., 364; Field 
 vs. Village, etc., 32 ILlch., 279. 
 
 § 13. Owner Must Intend to Dedicate. — The jury are instructed, 
 that there can be no valid dedication of laud to public use 
 without an intention, on the part of the owner, to so dedicate; 
 and althongh the jury may believe, from the evidence, that 
 the land at the point in question had been used by the public 
 as a highway with the knowledge and consent of the owner, 
 
 for years before, etc., still, this alone is not sufficient to 
 
 establish the existence of a highway by dedication; it nmst 
 further api)ear, from a preponderance of the evidence, that 
 the plaintiff intended to dedicate it to the use of the public as 
 a highway. Henderson vs. Alloway, 3 Tenu. Ch., 688; Man- 
 sur vs. State, 60 Ind., 357. 
 
 Although it is necessary, in order to show a dedication of 
 land to public use, that the owner intended tlius to dedicate it, 
 still, this intention may be manifested by acts or words, or 
 partly by both, and if the jury, after considering all the evi- 
 dence in the case, believe therefrom, that before, etc., that the 
 plaintiff intended to, and did dedicate the land in question to 
 ])ublic use, and with that intention, gave the public the right 
 to travel thereon and to use the same as a highway, and that 
 the public accepted the gift by using and working the road, 
 then this is evidence from which the jury may infer that there 
 was a dedication as claimed. White vs. jSmith, 37 Mich., 291; 
 Kennedy vs. Le Van, 23 Minn., 513. 
 
 § 14. Dedication Binding on the Owner, and all Claiming nnder 
 Him, — The jury are instructed, as a matter of laAv, that a valid 
 dedication, when once made and accepted, is binding not only 
 on the person making it. but also ujjou all persons claiming 
 under him by deed or otherwise. Ilees vs. City of Chicago, 
 38 111., 322.
 
 HIGHWAYS. 251 
 
 If tlie jury believe, from the evidence, that A. B., while he 
 was the owner of tlie land at the point in question, dedicated 
 it to public use as a hi_<^hway, as explained in these instruc- 
 tions, and that the public accepted the dedication, then the 
 portion so dedicated should be deemed to be a public high- 
 way. Town of Havana vs. Biggs, 58 111., 483; Bartlett vs. 
 Bangor, 67 Me., 4.G0; Summers vs. State^ 51 lud., 201. 
 
 § 15. Dedication by Sale of Lots Bounded on Streets. — That 
 when the owner of land, within or near a city or village, lays 
 it off into lots, blocks and streets, and makes a ])lat of the same, 
 marking thereon the streets and lots, and then sells one or 
 more of the lots, by reference to the plan or plat, he thereby 
 annexes to each lot sold a right of way in the street, which 
 neither he nor his successors in the title can interrui)t or take 
 away. Bartlett vs. Bangor, 07 Me., 460; Fisher et al. vs. 
 Beard, 32 la., 346; Waugh vs. Leech, 28 111., 488. 
 
 The court instructs the jury, as a matter of law, that if the 
 owner of a piece of land lays it out into lots and blocks, wiLh 
 streets and alleys, and then sells off a lot, bounding the lot by 
 one of the designated streets, then the purchaser of the lot 
 will acquire a right to have the street remain open for street 
 purposes, whether it is so mentioned in tlie deed or not, or 
 whether the street be accepted by the public authorities or 
 not. ClarJc vs. Elizabeth, 40 N. J. L., 172; Denon vs. Clem- 
 ents, 3 Col., 472; Deimtt vs. Ithaca, 15 Hor. (N. T.), 568; 
 Eastland vs. Fogo, 58 Wis., 274. 
 
 § 16. Prescription — (Twenty) Years' User. — If the jury be- 
 lieve, from the evidence, that a public road has been used by 
 the public over the place in question, for {twenty) years or 
 more, without interruption, and that the owners of the land 
 have acquiesced therein during all that time, then the law 
 presumes a grant or a dedication of the ground uix)u M'liich 
 the road runs, to the use of the public, for a common highway. 
 State vs. Green, 41 la., 693. 
 
 The court instructs you, that a peaceable, continuous and 
 uninterrupted use of a piece of ground, as a highway, by the 
 public for {tioenty) years, or more, creates what is called a pre- 
 scriptive right to use the road as such; and this right con-
 
 252 HIGHWAYS. 
 
 timics tin it is clearly and unmistakably abandoned by the 
 public. A partial or transient non-user of a road, by reason of 
 the travel being diverted to other roads, is not sufficient to 
 establish an abandonment of such road. Toion of Leioistown 
 vs. Proctor, 27 111., 414; Dexter vs. 2^ree, 6 N. E. Eep., 506. 
 
 § 17. Prescription — Ti-avel Must be Confined to a Particular 
 Route. — The jury are instructed, that the public cannot acquire 
 a right by prescription; that is, by a user for {twenty) years, 
 to travel over a tract of land generally. The travel and the 
 right of way must be contined to a specific line or way, that 
 could pro])er]y be called a road. That travel may slightly 
 deviate from the thread of a road to avoid an obstruction, and 
 still not change the road itself. Kelsey vs. Furinan, 36 la., 
 614; Davis vs. Clinton City Council, 10 K W. Eep., 768. 
 
 You are further instructed, that if various and distinct lines 
 of travel have been used at different times across a piece of 
 land, the time during which the different lines have been used 
 cinnot be so computed as to make up the requisite {tweyity) 
 years to establish a prescriptive right of way to any single line 
 of road. Gentleman vs. Soule, 32 111., 271. 
 
 If you believe, from the evidence, that the public acquiesced 
 in the placing of the obstruction complained of in the road in 
 question, by the defendant, and that tlie public accepted the 
 road spoken of by the 'witnesses as (" ^/i<e noi^th road''^') in lieu 
 of the road in question, and used the said substituted road for 
 a period of {five) years before the commencement of this suit, 
 then the public have waived their right in the defendant's 
 land at the point of the obstruction, and the plaintiff is not 
 entitled to recover in this suit. Gruhe vs. N'ichols, 36 111., 92.
 
 CHAPTER XXIV. 
 
 INSUKAXCE. 
 
 Sec. 1. Duty of court to interpret policy — Suit to be brought within 
 twelve mon'hs. 
 
 2. Non-payment of premium. 
 
 3. Estopped by unilorni course of business. 
 
 4. Application is made a warranty. 
 
 5. Warranty as to amount of incumbrances. 
 
 6. Fraud, knowledge of agent, knowledge of company. 
 
 7. Condition as to other insurance. 
 
 8. Other insurance known to the defendant. 
 
 9. Representations as to incendiarism. 
 
 10. Warranty as to title. 
 
 11. Non-compliance with conditions. 
 
 12. Furnishing proofs of loss. 
 
 13. Waiving proofs of loss. 
 
 14. Condition to render account of loss forthwith. 
 
 15. When agent cannot waive proofs of loss. 
 
 16. Premises becoming unoccupied. 
 
 17. Premises temporarily vacant. 
 
 18. False swearing in proofs of loss. 
 
 § 1. Dutyof the Court to Interpret the Policy — Suit to beBroxig-ht 
 within Twelve Months. — The jury are instructed tliat it is the 
 duty of the court to interpret and give the raeaning of the con- 
 tract or policy offered in evidence in this case, and the court 
 instructs the jury that by the terms of the policy, the plaintiff 
 cannot sustain this suit, unless it was commenced within twelve 
 months after the loss, if any occurred, or unless the defendant 
 has waived that provision of the policy,and if the jury believe, 
 from the evidence, that the loss in question occurred on, etc., 
 then the jury should find the issues for the defendant, imless 
 the jury further believe, from the evidence, that tlie defendant 
 jiad, in some manner, waived the necessity of commencing suit 
 within twelve months after the loss, as explained in these 
 instructions on that point. Riddlesbarger vs. Hartford Ins- 
 Co., 7 Wall., 386; Portage Co. Mutual Ins. Co. vs. West, 6 
 Ohio St., 699; Keim vs. Hoine Mutual Ins. Co., 42 Mo., 38; 
 
 (253)
 
 254 IXSUKANCE. 
 
 Peoria Marine F. Ins. Co. vs. Whitehill. 25 111., 466; Mer- 
 chants Mutual Ins. Co. vs. La Croix, 35 Tex., 249. 
 
 § 2. Non-Payment of Preminm. — If the jury believe, from 
 tlie evidence, that the preminm mentioned in the policy had 
 not been paid at the time of the lire, then, nnder the plead- 
 ings in this case, to warrant a finding for tlie plaintiff, the 
 jury must believe from the evidence that sucli payment was 
 either waived by the defendant or that the defendant agreed 
 with the plaintiff to wait for such payment until some definite 
 period of time subsequent to the happening of the loss — and, 
 in arriving at a conclusion upon these questions, the jury have 
 a right to consider the conduct of the j^arties in refei-ence 
 thereto, so far as it appears in evidence, together with all the 
 other evidence in the case. Southern Life Ins. C >. vs. BooJcer, 
 9 Heisk., 606; Mich. Mutual L. Ins. Co. vs. Powers, 42 Mich., 
 19; Beadle vs. Chenango County Mutual Ins. Co., 3 Hill, 
 161; Ayj'e vs. I^ev) England Mutual L. Ins. Co., 109 Mass., 
 430; liovxird vs. Continental Ins. Co., 48 Cal., 229. 
 
 The policy of insurance in this case contains a condition 
 that the company should not be liable for any loss occurring 
 when the premium note is wholly or iti jxart past due and un- 
 paid; and if you believe, from the evidence, that when the 
 loss occurred, there was any portion of the premium note due 
 and unpaid, then the defendant is not liable for such loss, un- 
 less you further b-ilieve, from the evidence, that the defend- 
 ant had in some manner waived or excused the prompt 
 payment of such premium note, as explained in these instruc- 
 tions. Garlick vs. Miss. Valley Ins. Co., 44 la., 553; Sha- 
 key vs. HaioJceye Ins. Co., 44 la., 540; Wheeler vs. Conn. 
 Mutual Life, 16 Hun, 317; Patch vs. Phcenix Mutual Ins. 
 Co., 44 Yt., 481; Sullivan vs. Cotton States L. Ins. Co., 43 
 Ga., 423. 
 
 You are instructed, that although you may believe, from 
 the evidence, that the witness A. B. agreed with the plaintiff 
 to extend the time of payment of the premium mentioned in 
 the policy, until, etc., still, in order to make such agreement 
 binding upon defendant, you must further believe, from the 
 evidence, that such an agreement was ratified by the insurance 
 Company, or that the said A. B. was either authorized by the
 
 INSUKANCE. 255 
 
 com]-)any to make the contract or that the defendant had 
 knowingly permitted him to act in such a way as to justify 
 the plaintiff in reasonably believing that he had such author- 
 
 ity. 
 
 § 3. Estopped by Uniform Course of Business. — The court 
 instructs you, as a matter of law, that a local agent of an in- 
 surance company may be authorized by the course of business 
 to waive the conditions and stipulations in the policy, and the 
 company maj'' be bound thereby, notwithstanding the policy 
 says that he may not do so; and if the jury believe, from 
 the evidence, tliat for a number of years it had been the uni- 
 form practice of the defendant to give notice of the time 
 when the premium would fall due, and to collect the same 
 through a local agent residing in the neighborhood, then good 
 faith required that this mode of collection should not be dis- 
 continued and payment required at the home office, under 
 penalty of a forfeiture, without notice to the plaintiff. Union 
 Cent. Life Ins. Co. vs. Pother, 33 Ohio St., 459; Mound City 
 Ins. Co. vs. Tioining. 19 Kans., 349; Ga. Ins. Co. vs. Ki7iner, 
 28 Graft., 88; McCmw vs. Old JS'. St. Ins. Co., 7§ K C, 149. 
 
 § 4. Application is Made a Warranty. — By the terms of the 
 policy introduced in evidence, the written application is made 
 a pai't of the contract of insurance; the effect of this clause is to 
 make the application part of the policy as effectually as if it 
 was embodied in the policy itself. 
 
 One of the conditions in the policy is that any false repre- 
 sentation made by the assured, of the condition of the prop- 
 erty, or of its occu} ancy, or of any fact material to the risk, 
 will avoid the policy; and so the court instructs you, as a mat- 
 ter of law, that any matter material to the risk, if contained 
 in the application, and if it was untrue, in fact, will avoid the 
 policy, whether it was made intentionally or not (unless you 
 find, from the evidence, that the company is estopped by the 
 conduct of its agent from setting up such matters in defense 
 as explained in these instructions). Jennings vs. Chenango 
 County Mut. Ins. Co., 2 Denio, 75. 
 
 § 5. Warranty as to Amount of Incumbrance. — The jury are
 
 256 INSCEANCE. 
 
 instructed, that amono; tlie questions in the apph"cations of 
 insurance, which the insured is required to answer, was this: 
 Istlie property incumbered, if so, to what amount? To which 
 the plaintiff answered: Yes, mortgaged, §1,000. Now, tlie 
 court instructs the jury, as a matter of law, that the amount 
 of incumbrance on the property insured at that time was 
 material to the risk, and if you believe, from the evidence, 
 that the property was then incumbered to the amount of, 
 etc., then this would be such a false representation as would 
 avoid the policy, and in such case it would make no diiference 
 whether the untrue answer was made by accident, mistake or 
 design. Unless the jury further believe, from the evidence, 
 that (here set out the matter claimed as an estoppel). Byers 
 Ys. Lis. Co., 35 Ohio, St., go;. 
 
 Ton are instructed that by the terms of the policy intro- 
 duced in evidence, the insured warrants the truth of all the 
 material statements contained in his application for insurance, 
 and among the matters so warranted by the plaintiff is the 
 statement tliat the incumbrances on the i:roperty insured only 
 amounted at that time to the sum of (81,000). This was a 
 representation of a then existing fact respecting the property 
 insured, which was material to the risk, and if it was not sub- 
 stantially true, this would render the policy voi 1. If, there- 
 fore, you believe from the evidence, that at the time of the 
 making of the said application there was other incumbrance 
 on said premises over and above the said (i?l,000) to the 
 amount of, etc., and that this was not called to the attention of 
 the agent who took the application and that he had no notice 
 or knowledge of such other incumbrance, this would render 
 the policy void, and the plaintiff cannjt recover in this suit. 
 Schumitsch vs. Ain. Ins. Co., 48 "Wis., 26; liyan vs. Sjjring- 
 field Ins. Co., 46 Wis., 671. 
 
 Although you may find, from the evidence, that there was 
 other incumbrance on the property over and above the ($1,000) 
 mentioned in the application for insurance, still, if you further 
 believe, from the evidence, that all the facts and circumstances 
 connected with such other incumbrance were called to the 
 attention of the agent who took said application, and that he 
 advised the plaintiff that, in view of such cii-cumstanees, it 
 would be unnecessary to mention such other incumbrance,
 
 INSUKANCE. 257 
 
 and tliat it was in consequence of such advice that such ad(h"tion 
 and incumbrance was omitted in the application, then the de- 
 fendant is estopped from urging such omission as a defense to 
 tliis action, and as to that question, you should find in favor 
 of the plaintiff. Rockford Lis. Co. vs. Nelson^ 75 111., 548; 
 Ilarrimayi vs. Queen^s Ins. Co.., 49 Wis., 71. 
 
 § 6. Fraud — Knowledge of Agent Knowledge of the Companj'. — 
 
 If the jury believe, from the evidence, that the application for 
 insurance was filled out or drawn up by the agent of the defend- 
 ant and that the insured honestly, frankly and fully disclosed 
 to such agent the real facts in regard to. etc., and that the in- 
 sured was induced to take out the policy and pay the pre. 
 mium by the assurances of such agent that the form in which 
 the facts in regard to, etc., were stated in the application was 
 the correct one, then the defendant is estopped from claiming 
 any advantage fr -m any misstatement in the said application 
 in regard to, etc., if the same has been proved. Lasher vs. 
 N. W. National Lis. Co., 55 How. (K Y.), Pr. 318; Maji^ 
 hattan F. Lis. Co. vs. Weill, 28 Gratt., 389; McCall vs. 
 Phmnix, etc., 9 W. Ya., 237; Rome Ins. Co. vs. Lewis, 48 
 Tex., 622. 
 
 If 3'-ou believe, from the evidence, that the plaintiff included 
 in the policy goods not belunging to him with intent to de- 
 f;aud the insurance company and purposely concealed wlio was 
 the true owner, or represented tliem to be his property, with 
 intent to cheat and defraud the company, then this would 
 render the policy void. 
 
 But if you believe, from the evidence, that at the time the 
 application for insurance was made he stated to the agent who 
 took the application that these goods were in his possession 
 but that he was not the owner of them, and that the agent 
 then informed him that he could include them in the insur- 
 ance as his goods and that the plaintiff acted on this infor- 
 mation and relied on this advice, then the plaintiff' cannot be 
 said to have intended to defraud the company. 
 
 If you believe, from the evidence, that at the time the 
 
 application was made the plaintiff could not readily write or 
 
 read writing and that the blanks in the ])rinted forms of 
 
 application were filled up by one A. B. and that he was then 
 
 17
 
 258 INSUKANCE. 
 
 acting as the agent of the insurance comjianj, and fuitlier that 
 there Avere false answers and statements therein, still if you 
 further believe from the evidence that such false answers and 
 statements were occasioned by the cai-elessness, mistake or 
 inadvertence of such agent, then the plaintiff would not be 
 bound by such false statements — although the policy contains 
 a clause thai the person who procures the insurance should be 
 deemed to be the agent of the assured, etc. Sj>i'agioe vs. 
 IloUand Purchase Ins. Co., 69 N. Y., 128. 
 
 § 7. Condition as to Other Insurance. — Tliat among the con- 
 ditions in the policy sued on, is one wliich provides: that if 
 the assured should thereafter procure any other insurance, etc.; 
 and the court instructs you, that if you lind, from the evidence, 
 that the plaintiff, after receiving the policy from the defend- 
 ant companj', and before the loss in question occui-red, obtained 
 other insurance upon the property, which had not expired at 
 the time of the fire, and that no notice thereof was given to the 
 defendant, its agents or officers, before the fire, or to which the 
 company or its agents did not consent, then this would render 
 the plaintiff's policy void, and he cannot recover in this sa t. 
 Ain. Ins. Co. \s.Gallati?i, 48 Wis., 36; Mellen \%. Hamilton 
 Fire Ins. Co.. 17 K T., 609; Burt vs. Peoples Mutual F. Ins. 
 Co., 2 Gray, 397; Shurtliff y&. Phosnix Lis. Co., 57 Me., 137; 
 Keiv Yorlc Cent. Ins. Co. vs. Watson, 23 Midi., 486; LocJcey 
 vs. Georgia Home Ins. Co., 42 Ga., 456; Jewett vs. Home Ins. 
 Co., 29 la., 562. 
 
 Although you may believe, from the evidence, that after 
 receiving the policy from defendant the plaintiff did procure 
 other insurance on the property in question (without having 
 the consent of the secretary written on the policy), still, if you 
 further believe, from the evidence, under the instructions of 
 the court, that A. B. was at the time the general local agent at 
 S., and had autlioi-ity to receive and take applications for in- 
 surance by defendants, and to make contracts for the company 
 in relation thereto — and further, that while the said A. B. was 
 so acting as agent, tlie plaintiff notified him of his intention to 
 take su'-h additional insurance, and afterwards told him he had 
 done so, and that neither the said agent, nor any one else on 
 behalf of defendant, notified the plaintiflE that such additional
 
 INSUKANCE. 
 
 259 
 
 insiu-ancc, without being indorsed on the policy (or consented 
 to in writing by the secretary), would render or had rendered 
 the policy void, then the defendant must be deemed to have 
 waived the condition in the policy regarding such additional 
 insurance, and the plaintiff's right of recovery will not be 
 affected thereby. J.m. Ins. Co. vs. Gallatin, 48 Wis., 36; 
 Geib vs. International Ins. Co., 1 Dill. Cir. Ct., 443; Goodall 
 vs. New England Mutual F. Ins. Co., 25 N. H., 109; Ins. Co. 
 of N. Am. vs. McDowell, 50 111., 120; Schenck vs. Mercer 
 Count ij Mutual Ins. Co., 24 K J., 447; Ilaj/wardvs. K Ins. 
 Co., 52 Mo., 181. Contra: Worcester Bank vs. Eartford F. 
 Ins. Co., 11 Gush., 265. 
 
 If you believe, from the evidence, that A. B. was the agent 
 of the defendant at S. for taking applications for in-^urance, 
 and for delivering policies for the defendant con pa ly, and 
 that he was notified by the plaintiff of the additional insurance 
 placed on plaintiff's property and that he did not object to the 
 same or suggest any breach of the condition of the original 
 policy in consequence thereof, then the defendant is estopped 
 from now setting up such additional insurance in avoidance of 
 its policy. 
 
 Although you may believe, from the evidence, that the 
 plaintiff, after receiving the policy from the defendant, and 
 before the loss in question, did obtain other insurance upon the 
 property to which the companj' did not consent and of which 
 they had no notice until after the fire, still, if you further be- 
 lieve, from the evidence, that the adjusting agent of the com- 
 pany, with full knowledge of all the facts relating to such 
 additional insurance, told the plaintiff to go on and make up 
 his proofs of loss witliout giving the plaintiff to understand 
 that the company would rely upon a forfeiture by reason of 
 the additional insurance, and that the plaintiff" did thereupon 
 go to the expense and trouble of making up such proofs of 
 loss and forwarding them to the company, this would amount 
 to a Avaiver of such forfeiture, and the company now cannot 
 claim the forfeiture for the purpose of avoiding its liability on 
 its policy. Penn Ins. Co. vs. Kittle, 39 Mich., 51. 
 
 You are instructed that if you believe, from the evidence, 
 that at the time of the making of the policy sued on, the as- 
 sured had other insurance on the same premises without the
 
 2G0 I^'SUKANCE. 
 
 consent of tlio defendant company written on the policy in. 
 question in this case, and that such other insurance was still 
 subsisting at the time of the fii'e, then these facts rendered the 
 defendant's policy void and the jury should Und for the de- 
 fendant. 
 
 § 8. Other Insurance KnowTi to the Defendant. — Although the 
 Jury nmy believe, from the evidence, that the ])laintitf had 
 other insui'anco on the property in question not indorsed upon 
 the policy, still, if tlie jury further believe, from the evidence, 
 that the existence of such other insurance was known to the 
 defendant when its policy was issued, then these facts would 
 amount to a waiver of the condition requiring additional in- 
 surance to be indorsed on the policy or consented to by the 
 defendant in writing. Richardson vs. Westchester F. Ins. 
 Co.s 15 Hr.n, 472; Carr vs. H'lbernia F. Ins. Co., 2 Mo. App,, 
 466; Goodall vs. ])few England Mutual F. Ins. Co., 25 ]^. H., 
 169; Ins. Co. of H. Am. vs. McDowell, 50 111., 120. 
 
 § 0. Representations as to Incendiarism. — Among the ques- 
 tions propounded to the insured, in the application for insur- 
 ance, was this: Incendiarism — have you any reason to believe 
 your piropcrty is in danger from it? and the answer is, No. 
 And the court instructs the jury, as a matter of law, that that 
 question and answer related to a matter which was material to 
 the risk, and if you believe, from the evidence, that at the 
 time that application was made and the policy sued on in this 
 case issued, the plaintiff knew that an attempt had then re- 
 cently been made to burn the premises insured, and that he 
 failed to disclose that fact to the defendant's agent who took 
 the application and delivered the policy, then these facts would 
 render the policy void, and the jury should find for the de- 
 fendant. North Am. Fire Ins. Co. vs. Throop, 22 Mich., 146. 
 
 If you believe, from the evidence, that a written a]-)plication 
 for insurance was made by the plaintiff to the defendant, and 
 that the policy sued on in this case was issued npon that appli- 
 cation, and also that the plaintiff stated in that application 
 that he had no reason to fear that his property was in dan- 
 ger from incendiarism, and if you further believe, from the 
 evidence, that, as a matter of fact, he then had such reason to 
 fear, then your vcrd.ct should bo for the defendant.
 
 INSURANCE. 201 
 
 Altliongh you miy believe, from the evidence, tliat there 
 liad once been an attempt made to burn tlie i)remiscs insured, 
 still, if yon further believe, from the evidence, that this was so 
 long a time before the application was made that tl>e plaintiff 
 did not then fear, and had no reasonable ground to believe 
 that his property was in danger from incendiaries, then a fail- 
 ure to disclose such attempt to burn the property would not 
 render the jiolicy void. North Ain. Fire Ins. Co. vs. Throop., 
 22 Mich., 146. 
 
 Although you may believe, from the evidence, that there 
 had once been an attempt to burn the premises insured, still, 
 if you further believe, from the evidence, that at the time tlie 
 application was made the plaintiff explained to the agent who 
 took the apph'cation, the facts and circumstances connected 
 with such attempt, and that the agent told him that it would 
 not be necessary to mention it in the application, etc., and 
 that for that reason the plaintiff answered, as he did, the 
 inquiry in relation to incendiaries, then such question and 
 answer or the failure to disclose or mention such attempt in 
 the application would not render the policy void. North Am. 
 Ins. Co. vs. Throop, 22 Mich., 146; Am. Ins. Co. vs. Gilbert, 
 27 Mich., 429. 
 
 § 10. Warranty as to Title. — The policy of insurance in this 
 case refers to the written application of the plaintiff" and makes 
 it a warranty of all the matter of facts therein stated. The 
 application contains these questions and answers: Title — is 
 your title to and interest in this property absolute? If not, 
 state its amount, and give the name, interest and amount of 
 others concerned; answer, Fes. The coui-t instructs the jury 
 that the legal effect of the poh'cy and of these questions and 
 answers is that they amount to a warranty that the ])laintiff 
 was the sole and absolute owner of the property. While the 
 deeds and title papers introduced in evidence show that the 
 title to an undivided half of the property was in one A. B. 
 at the time, and your verdict, therefore, must be for the 
 defendant, unless, etc. JEtna Ins. Go. vs. Iiesh,¥) Mich., 241. 
 
 § 11. Non-Compliance with Conditions. — Among the condi- 
 tions of this policy is this: (" If the interest of the assured in
 
 262 IKSUKANCE. 
 
 the pro])crtj bo otlier tlian tlie entire, unconditional and 
 sole ownership of the property for the use and benefit of the 
 assu)-ed, it must be so represented to the company, and so ex- 
 pressed in tlie written ]iart of this poh'cj, otherwise this policy 
 shall be void ;") and the court instructs you, that if you believe, 
 from the evidenje, that the plaintiff was not the sole and ab- 
 solute owner of the property insured, holding the same for 
 liis own use and benefit at the time he made the application 
 for insurance and he did not notify the agent of the comj^any 
 of that fact, then this would render the policy void, and the 
 plaintiff cannot recover, unless the jury further believe, from 
 the evidence, tiiat the agent of the company/ knew the facts in 
 relation to the ownership of the property or had knowledge 
 of such facts as ought to liave put a reasonably prudent and 
 careful man upon incpiiry with reference tliereto. Smith vs. 
 Commomoealth Lis. Co., 49 Wis., 322. 
 
 If you believe, from the evidence, that the agent who issued 
 the policy in question, was previously informed of the circum- 
 stances under which the ];la'ntiff held the title to the proj.erty, 
 and was furnisiied with full information which would have en- 
 abled him, by inquiry, to leain the facts in regard to plaintiff's 
 title, and that the agent, with such knowledge, issued the policy 
 without Sjecifj'ing in the policy the character of the plaintiff's 
 title, this was a waiver of the condition in the policy in refer- 
 ence thereto. Hid. 
 
 § 12. Furnishing Proofs of Loss. — The jury are instructed, 
 that the jolicy in this case i^rovides that the assured shall, 
 after a loss by fire, forthwith give notice of such loss to the 
 insurer, and as soon thereafter as possible, render to the com- 
 pany a ] articubr account of the loss, signed and sworn to by 
 him, stating, among other things, how the fire originated, etc.; 
 this particular account and certificate of the officer are what 
 are understood as " proofs of loss;" the meaning of this lan- 
 guage is that the assured shall, as soon after the fire as he rea- 
 sonably can under all the circumstances of the case, give notice 
 to the company of the loss and furnish to the company such 
 proofs of loss; that is, he shall not be guilty of any unnecessary 
 delay in giving such notice or in furnishing such proofs. 
 Columbia Ins. Co. vs. Lawrence^ 2 Peters, 25; llodgMns vs.
 
 INSURANCE. 203 
 
 j\Ioiit(jomeri/, etc., Ins. Co., 34 Barb., 213; JI(jCa7vnys. yEtna 
 Ins. Co., 3 Neb., 198 ; Niagara District Ins. Co. vs. Lewis, 12 
 U. C. C. P., 123. 
 
 "The court instructs the jury, that if you believe, from tlic 
 evidence, that WiUiam Grunert, the insured, was, at the time 
 of th ) lire (September 8, 1880,) absent from his home in Win- 
 chester, Illinois, and could not be found, so as to make proofs 
 of the loss within the time specified by the policy, then in tliat 
 case, such proofs of loss could be made by the agent of the 
 said William Grunert." Wood on Fire Ins., p. 693, §413; 
 Ai/res vs. Hartford Ins. Co., 17 Iowa, 176; Farmers'' Mutual 
 Ins. Co. vs. GrayviUe, 74 Pa. St., 17; 0^ Cmnor vs. Hartford 
 Fire Ins. Co., 31 Wis., 160; Northwestern Ins. Co. vs. Adhin- 
 son, 3 Bash (Ky.), 328; Sims vs. State Ins. Co., 47 Mo., 54; 
 Ger. F. Ins. Co. vs. Grunert, 112 111., 60. 
 
 You are instructed, that in this case, the policy provides, 
 among other things, that the loss shall not be payable, until 
 the expiration of (sixty days) after the proofs of loss have 
 been furnished, etc. And these proofs of loss are I'cquired to 
 be, etc, (following the policy). And if the jury believe, from 
 the evidence, that such proofs of loss had not been furnished 
 to the company at least (sixty days) before the commencement 
 of this suit, then the jury should find for the defendant, unless 
 the jury further believe, from the evidence, that the produc- 
 tion of such proofs of loss was in some manner waived or 
 excused by the defendant, as explained in these instructions 
 Ilamman vs. The Queen Ins. Co., 49 Wis., 7J. 
 
 The policy of insurance sued on in this case, provides that 
 (set out the provisions relating to furnishing proofs of loss and 
 forfeiture) this time and condition having been fixed by the 
 parties, they are bound by it, and if you believe, by the evi- 
 dence, that the plaintiff did not, within, etc., then he has for- 
 feited his right to recover in tiiis suit, and you should find for 
 the defendant, unless you further believe, from the evidence 
 that the defendant has in some way waived or excused the 
 necessity for furnishing such proofs of loss, as explained in 
 these instructions. Aurora F. & M. Ins. Co. vs. Kranich, 36 
 Mich., 289. 
 
 If ycu believe, from the evidence, that tlie jilaintiff gave to 
 the defendant, or to its authorized agents, notice and proofs
 
 26i INSURANCE. 
 
 of the alleged loss more tlian sixty days before the bringins; 
 of this suit, and that, under all the circumstances appearing in 
 evidence, he did so within a reasonable time after the alleged 
 loss, and without unnecessary or unreasonable delay, then the 
 defendant cannot defeat the plaintiff's right of rccovej-y on the 
 ground of alleged delay in giving notice or making proofs of 
 the loss, provided you believe, from the evidence, under the 
 instruction of the court, that the plaintiff is otherwise entitled 
 to recover. 
 
 If you believe, from the evidence, that the plaintiff did not, 
 within a reasonable time, and as soon as it could conveniently 
 be done, after the alleged loss, ser\e notice of the loss upon 
 the defendant com [-any or its agents, and that he was not 
 delayed in serving such notice by any act or statement of the 
 defendant company or its agents, then you should tind for the 
 defendant. 
 
 § 13. Waiving: Proofs of Loss. — If the jury believe, from the 
 evidence, that the plaintiff within, etc., furnished to the de- 
 fendant what purported to be proofs of loss, though not in 
 exact conformity with the terms of the policy, and that these 
 proofs were accepted by the company without objection or 
 without suggesting that they did not conform to the terms of 
 the policy and objecting to them for that reason, then the de- 
 fendant is estopped from claiming that such proofs were insuf- 
 ficient. Hamman vs. The Queen Ins. Co.., 49 Wis., 71; Ken- 
 ney vs. Home Ins. Co., 71 N. Y., 396; Spratteij vs. Hartford 
 Ins. Co., 1 Dill. Cir. Ct., 392; Patterson vs. Triumph Ins. Co., 
 64 Me., 500; St. Louis Ins. Co. vs. Xayle, 11 Mo., 278. 
 
 If you believe, from the evidence, that the plaintiff fur- 
 nished to the defendant within, etc., what pur]iorted to be 
 proofs of loss, though not in exact conformity to the require- 
 ments of the policy, and that they were objected to upon that 
 ground, still, if you further believe, from the evidence, that 
 the defendant then denied any liability to the plaintitf under 
 said policy, and dec^ucd that the company would ]iay no 
 alleged claim thereunder, then such declarations amounted to 
 a waiver of any further proof of loss, and the ))laintiff was 
 under no obligation to fuiiiish any others. IlanDnan vs. TJie 
 Queen Ins. Co., 49 Wis., 71; Bennett vs. Maryland Ins. Co.,
 
 INSUKANCE. 265 
 
 14 Blatclif., 422; Bogers vs. Traders' Ins. Co., 6 Paige Cb., 
 5S3; rh'dUps vs. Protection Lis. Co., 44 Mo., 220. 
 
 You are instructed, that the ])rovision in the policy in rela- 
 tion to the time of furnishing the j)roofsof loss is inserted for 
 the benefit of the company and if the company chooses to 
 waive it, it can do so. 
 
 Mere silence in regard to the furnisliing of such proofs is 
 not to be taken as a waiver of the right of the conijiany to in- 
 sist on a strict compliance with the terms of the contract. In 
 order to amount to a waiver, etc., you must find, from the 
 evidence, that there was either an express agreement between 
 the parties to that effect or else tliat there was such a course 
 of conduct on the part of the defendant as was reasonably cal- 
 culated to throw the insured off his guard and lead him to 
 believe that the company did not require sucli proofs. 
 
 And in this case, if you believe, from the evidence, that the 
 agent of the company said to the plaintiff after the com]\Tny 
 had notice of the loss and had inquired into the circumstances 
 attending it, that they would not pay any claim under that 
 policy for the reason (because the buikling was not occupied 
 at the time of the fire) this would amount to a waiver of the 
 necessity of furnishing proofs of loss. Auroi^a F. eft M. Ins. 
 Co. vs. Kranich, 36 Mich., 2S9; Keenan vs. Mo. St. Mutual 
 Ins. Co., 12 la., 126. 
 
 You are instructed that in order to effect a waiver of the 
 condition in the policy regarding, etc., you must believe, from 
 the evidence, that the officers or agents of the comjiany either 
 said or did something reasonably calculated to mislead the 
 plaintiff or throw him off' his guard in resi.ect to, etc.; mere 
 silence is not enough from which to infer a waiver of this 
 condition of the policy. And in this case, if you believe, from 
 the evidence, etc., this would not amount to a waiver of the 
 condition in the policy. Muller vs. S. S. F. Ins. Co., 87 
 Penn. St., 399 ; McDermott vs. Lycoming Ins. Co., 44 JS". Y. 
 S. Ct., 221. 
 
 The jury are instructed, that an insurance company may 
 waive, not only imperfections and deficiencies in the statement 
 of loss and proofs required by the policy, but it ma}' also waive 
 a prompt compliance with the provisions of the policy as to the 
 time of giving notice and presenting proofs of loss. And if
 
 266 INSUKANCE. 
 
 the jury. believe, from tlie evidence, that the ]ilaiiitiff, Lcfore 
 the expiration of a reasonable time for furnishing proofs of 
 loss after the fire, went to an agent of the company and re- 
 quested time for furnishing such proofs, and was then told by 
 the agent that the question of title was the only question so 
 far as tlie company was concerned, and that he might take 
 his own time to prepare and furnish proofs, to furnish tliem 
 at his convenience, and plaintiff, relying upon such statements, 
 neglected to prepare the proofs as soon as lie might otlierwisc 
 liave done, but did, afterwards, at his convenience and more 
 than sixty days prior to the bringing of this suit, furnish to 
 the company proofs of loss, then the com >any are estopped 
 from objecting that the proofs were not furnished in proper 
 time. Underwood vs. Farmers'' Joint Stock Ins. Co., 57 X. Y., 
 500; Djhn vs. Farmers^ Joint Slock Ins. Co.. 5 Lans., 275. 
 
 § 14. Condition to Render A cco'int of Loss Forthwith. — Policy 
 containing this provision: "Persons sustaining loss or damage 
 by fire shall forthwith give notice of said loss to the company, 
 and, as soon thereafter as possible, render a particular account 
 of such loss," etc. 
 
 § 15. "NVlien Agent Cannot Waive Proofs of Loss. — The jury 
 are instructed that the defendant company cannot be affected 
 by any statement which their agents at C. may have made to 
 the plaintiff upon the subject of his serving upon the comj^any 
 notice of loss or proofs of loss, as required by the policy, if the 
 jury believe, from the evidence, tl)at such statements were 
 made after the plaintiff had had a reasonable time after the fire 
 Mnthin which to have given such notice or to have made such 
 proofs, and he had not done so. 
 
 And if you believe, from the evidence, that the plaintiff did 
 not within a reasonable time and without unnecessar}' delay 
 })repare and serve upon the company the proofs of loss referred 
 to and explained in these instructions upon that point, then you 
 should find the issues for tlie defendant, unless you further be- 
 lieve, from the evidence, that prior to the expiration of a rea- 
 sonable tinie after the fire for delivering such proofs of loss, 
 consent was given by the agents of the company that the time 
 for presenting such proofs of loss might be extended.
 
 INSUKANCE. 2G7 
 
 § IG. Premises Becoming Unoccupied. — Tlie jury arc in- 
 structed that tlic policy of insurance in this case provides that, 
 if the premises insured become unoccupied and so remain 
 for thirty days without the assent of tlie company indorsed 
 thereon, then the policy should become void. And if the jury 
 beb'eve, from the evidence, that, at the time of the fire, the 
 premises were unoccupied, and that they had been so unoc- 
 cupied for thirty days, or more, before the tire, without the 
 consent of the company, then the policy had become void, and 
 the jury should lind for the defendant. 
 
 In determin ng, under the evidence, whether tlie premises 
 became unoccupied and so remained for tliirty days or more, 
 at and before the loss, you are instructed, as a matter of law, 
 that when the property insured is a dwelling liouse, the 
 occupancy required under such a policy as this, is such occti- 
 pancy as ordinarily attends a dwelling house; the word " unoc- 
 cupied" in the policy is to be construed in its ordinary and 
 popular sense; and if you believe, from the evidence, that 
 after the making of the jiolicy, the insured wnth his family 
 removed from the house and ceased to occupy the same as a 
 dwelling house until the loss, and that this had continued for 
 thirty days or more before the fire, then the policy became 
 void, and you should find for the defendant. Western As- 
 surance Go. vs. ^lason, 5 Brad., 141; Wkitney vs. Black 
 Elver Ins. Co., 72 K Y., 117. 
 
 One of the representations made by the plaintiff in the 
 application upon which the policy was issued was thia (set out 
 the representation as to occupancy) and the tpolicy provides 
 among other things that (set out the condition as to the prem. 
 ises becoming vacant). Now, if you believe, from the evi- 
 dence, that at the time of the tire the premises were vacant, 
 and that the defendant and its officers and agents had had no 
 knowledge or notice of this fact, then the plaintiff cannot 
 recover. Aurora F. <& M. Ins. Co. vs. Kranich., 38 Mich., 
 289 ; Cans vs. St. Paul F. Ins. Co., 43 Wis., 108. 
 
 If you believe, from the evidence, that the premises, 
 etc., were unoccupied at the time the policy was issued, and 
 that the agent of the company who took the a]fplication and 
 issued the policy knew this fact, then the fact, if proved, that 
 the premises were unoccupied at the time of the fire will con-
 
 268 INSURANCE. 
 
 etitute no defense to tliis action. Auroi\i F &, 3/. Ins. Co. vs. 
 Kranic\ 36 Mich., '289; JEtna Ins. Co. vs. Meyei^s, 63 Ind., 
 238. 
 
 § 17. Premises Temporarily Vacant. — Altlioiigli the jury may 
 believe, from the evidence, that the lionse was vacant and 
 unoccupied at the time of the lire, still, if the jury further be- 
 lieve, from the evidence, that such vacancy was but temporary, 
 and was occasioned by the fact that one tenant had but a day 
 or two before moved out to enable another tenant to move in, 
 and that such new tenant had engaged to move, and was abont 
 to do so when the fire occimed, this would not render the 
 premises vacant and unoccupied within the meaning of the 
 policy of insurance. AMiitney vs. Black River Ins. Co., 72 
 N. Y., 117; Cu7nmi7is vs. Agrimltural Ins. Co., 67 N. Y., 260. 
 
 § 18. False Swearing in Proofs of Loss, etc. — In regard to the 
 sworn statement of plaintiff in his proof of loss that (he was 
 the owner in fee simple of the premises, etc.,) the court 
 instructs 3'ou that although yon may believe, from the 
 evidence, that the plaintiff at the time was occupying the prem- 
 ises under a lease, these facts alone would not constitute a 
 defense to this action. In order to create a defense under the 
 condition of the policy in relation to false swearing, it must 
 appear, from the evidence, that the plaintiff not only swore 
 falsely, but that he did so willfully and knowingly and with 
 the intention of deceiving the officers of the company. Dogge 
 vs. Hat. Ins. Co., 49 Wis., 501 ; Ins. Co. vs. Mides, 14 Wal 
 lace, 375; Franklin Ins. Co. vs. Culver, 6 Ind., 137; Planters' 
 Mat. Ins. Co. vs. Dsfordet al., 38 Md., 328 ; Little vs. Fhamix 
 Ins. Co., 123 Mass., 380; Parker vs. A7nazo7i Ins. Co., 34 
 Wis., 363; Marion vs. Great Rejpuhlic Ins. Co., 35 Mo., 148; 
 iya7ikVm F. Lis. Co. vs. Vpdeg7\iff, 43 Penn. St., 350. 
 
 Although you may believe, from the evidence, that the 
 plaintiff was not the owner of the premises insured, but was 
 only occupying the same under a lease at the time of the loss, 
 still, if you further believe, from the evidence, that the 
 ])laintiff, wfien he SM-oi-e to his proofs of loss, owing to his 
 ignorance of tho English language, or of the meaning of the 
 •words "owner in fee simple" innocently and miwillingl}', and
 
 INSUKANCE. 269 
 
 without any intention to doecivc, swore falsely regarding his 
 interest in the proj;crty, this would not of itself prevent a 
 recovery in this case. 
 
 If you believe,froin the evidence, that the ])laintiff included 
 in his proofs of lois, which lie furnished to the company, 
 articles of property which did not belong to hini, knowingly 
 and with intent to defraud the company, knowing that he had 
 no right so to do, this would avoid the policy, and the ])laintitf 
 cannot recover in this suit. Farmer^ Mutual F. Ins. Co. 
 vs. Garrett, 42 Mich'., 289; Geih vs. International Ins. Co., 
 1 Dill. Cir. Ct., 443.
 
 CHAPTER XXV. 
 
 IXTOXICATIXG LIQUORS. 
 
 Sec. 1. Suit by wife — Statutory provisions. 
 
 ''I. What must be proved. 
 
 3. Defendan s jointly and severally liable. 
 
 4. Sufficient if the liquor sold contributed to, etc. 
 
 5. Owners of premises. 
 
 6. Suit against saloon-keeper and owner of buihling, jointly. 
 
 7. Propriety of the law not a question for the jury. 
 
 8. Burden of proof — What must be proved. 
 
 9. Proximate cause, what. 
 
 10. New or intervening cause. 
 
 11. Preponderance of the evidence sufficient. 
 
 12. Good faith not a mitigation of damages, when. 
 
 13. The verdict must be founded on evidence. 
 
 Note. — The statutes of the different states, giving a right of action for 
 injuries sustained in consequence of the intoxication of any person, vary 
 somewhat in their details, although they are similar in their gen?ral feat- 
 ures. The following instructions, adapted to this class of cases, with slight 
 changes, will generally be found applicable to the laws of most of the differ- 
 ent states. 
 
 § 1. Suit by a Wife — Statntory Provisions. — The jury are 
 instructed, that bj the law of this state, every person who 
 sells or gives intoxicating liquors to another, and thereby, in 
 whole or in part, causes the intoxication of such person, is 
 liable to the wife of the person so becoming intoxicated, for 
 any injury which she may sustain in her means of support, 
 resulting from the death of her husband, if liis death ensues 
 as a consequence of such intoxication. O' Hallo ran vs. Kings- 
 ton, IQ 111. App., 659. 
 
 The statute of this state provides that every wife, who 
 shall be injured in person or property, or means of supj^ort 
 in consequence of the intoxication, habitual or otherwise, of 
 her husband, may have a right of action in her own name 
 against any persons who shall, by selling or giving intoxi- 
 
 (270)
 
 INTOXICATING LIQUOKS. 271 
 
 eating liquors to her liusLand, have caused such intoxication 
 in whole or in part. 
 
 § 2. What Must be Proved. — The juiy are instructed, that 
 if they believe, from the evidence, that the plaintiff was the 
 wife, and is now the widow of the said F. M., and that the 
 said defendants, or any or either of them, or the servants, 
 employes or any person acting for said defendants, or any or 
 
 either of them, did on or about sell or give to the said 
 
 F. M. beer, or any intoxicating liquor, and thereby, in whole 
 or in part, cause the intoxication of the said M., and that 
 the said M., while nnder the influence of such intoxication, 
 and in consequence thereof, lost his life in manner and form 
 as charged in the declaration, and that the plaintiff was there- 
 by damaged in her means of support, then the jury should 
 find the said defendants, or such of them as are proved to 
 have contributed to such intoxication, in whole or in part, 
 guilty, and assess the plaintiff's damages. I'ountain vs. 
 Draper, 49 Ind., 441; Emory vs. Addis, 71 111., 273; ^ool- 
 heather vs. liisley, 38 la., 486 : Worley vs. Spurgeon, 48 la., 
 465 ; Kehrig vs. Peters, 41 Mich., 475 ; Flynn vs. Fogerty, 
 106 111., 263. 
 
 § 3. Defendants Jointly and Severally Liable. — The jury are 
 further instructed, that in actions of this kind, it is not neces- 
 sary to make all persons who have been guilty of selling in- 
 toxicating liquors to the deceased, defendants in a suit for 
 damages, if any, resulting from intoxication, caused by their 
 joint act and sales, but the person injured may sue any one or 
 more of the persons, who, by themselves, their agents or 
 employes, made such sale, and recover from him or them, if 
 found guilty, the damages sustained. 
 
 § 4. Sufficient if the Liquor Sold Contributed, etc. — The jury 
 are further instructed that though they may believe, from the 
 evidence, that the deceased had liquor in his house, or about 
 his person, or had bought or taken it at places other than at 
 the saloon of the defendants, still, this fact would constitute no 
 defense to this action; provided the jury believe, from the 
 evidence, that the deceased obtained intoxicating liquors at
 
 272 INTOXICATING LIQUOES. 
 
 the saloons of tlio defendant, which contributed to his intoxi- 
 cation, and that his death re.ni'ted as a cjnsequence of sucli 
 intoxication. R dh vs. Eppu^ 80 111., 233; Boyd vs. Vi^atU 
 27 Ohio St., 259; ^Voollieather vs. Bisleij, 38 la., 486. 
 
 In order to make a dram-shop keeper liable for injuries 
 occasioned by intoxication, which results from tlie drinkint^ of 
 intoxicating liquors sold by him, it is not necessary that such 
 inloxication should be wholly jiroduced by liquor sold by him; 
 it is on^y necessary to show that the liquor sold by him con- 
 tributed or assisted in producing such intoxication. O" Hal- 
 loran vs. Kingston, 16 111. A pp., 659. 
 
 Even though the jury believe, from the evidence, that the 
 intoxication complained of resulted in part from liquors drank 
 by the said B. before he -went to the saloon of the defendant, 
 still that fact affords no defense in this case, if the jury further 
 believe, from the evidence, that the defendant sold intoxicat- 
 ing liquors to deceased, and that the intoxicating liquors so 
 sold by defendant contributed or assisted to produce such 
 intoxication, and that deceased died in consequence of sucdi 
 intoxication. 
 
 § 5. Owner of the Premises, ete. — The jury are instructed, 
 that under our statute, the owner of premises upon which in- 
 toxicating liquors are kept for sale, contrary to law, is not 
 guilty of an offense if he, in good faith, leased them for a law- 
 ful purpose, and did not afterwards affirmatively assent to such 
 unlawful use; the more failure to prevent, or to attemi)t to 
 ]irevent, the illegal use or sale of the liquors, does not subject 
 him to the penalties of the statute. State vs. Ballingall^ 42 
 la., 87. 
 
 § 6. Suit against the Saloon-Keeper and Ovmer of the Bnilding 
 
 Jointly. — The court instructs the jury, that the law under m hich 
 this suit is brought, provides that every wife, who shall be 
 injured in person or property, or means of support, in conse- 
 quence of the intoxication, habitual or otherwise, of her hus- 
 band, may have a right of action, in her own name, against 
 any person or persons who shall, by selling or giving intoxi- 
 cating liquor to her husband, have caused such intoxication, in 
 whole or in part; aTid the law further provides, that any per-
 
 INTOXICATING LIQUORS. 273 
 
 son owning any building or premises where such liquors are 
 sold, knowing that intoxicating liquors are sold therein, and 
 knowingly permitting such sale, shall be liable jointly with the 
 person or persons selling or giving such intox'cating liquors, 
 for all damages which may be sustained in the manner above 
 stated. Loan vs. Illney, 53 la., S9. 
 
 The jury are furtlier instructed, that if they find, from the 
 evidence, that the defendant, H. H., is guilty, as charged in 
 the declaration, and if they further find, from the evidence, 
 that the other defendant, S. 11., was the owner of the building 
 or premises where the liquoi-s were sold or given to the de- 
 ceased, and that he then knew that the said defendant, H. H., 
 was keei)ing a saloon on said premises, and selling intoxicating 
 liquors therein, and knowingly permitted such sales, then the 
 jury will find both the defendants guilty, and assess the dam- 
 ages equally against both, if any damages have been proved. 
 
 § 7. Propriety of the Law not a Question for the Jury. — The 
 
 court instructs the jury, that it is not for them, in this case, 
 to inquire into or consider the propriety of the law now in 
 force, relating to the sale of intoxicating liquors, under which 
 this action is brought. The law, as it stands u]ion the statute 
 book of this state, should be enforced; and if the jury believe' 
 from the evidence in this case, that the defendants, or any or 
 either of them, contributed to the intoxication of plaintiff's 
 liusband. if such intoxication has been proved, and that in con- 
 sequence of such intoxication, her husband died, as alleged in 
 plaintiff's declaration, and that the plaintiff has been injured, 
 in her means of support, by reason of such death, then the 
 jury should find for the plaintiff, as against such of the de- 
 fendants as have b3eu proved to have contributed to such 
 intoxication, in whole or in part. 
 
 § 8. Burden of Proof— What Must be Proved. — The court 
 instructs the jury, that to entitle the plaintiff to recover, it 
 must be proved, by a preponderance of evidence, that the de- 
 fendants, or one of them, sold intoxicating liquors to the 
 deceased, and thereby contributed to cause his intoxication, in 
 whole or in part, and that his death resulted as a consequence 
 of such intoxication. 
 18
 
 274 IKTOXICATING LIQUORS. 
 
 To entitle the plaintiff to recover in this suit, it is no^" 
 enough for her to sh »\v that she has been injured iu her 
 means of support, hy the death of her husband ; it must 
 further appear, from the evidence, that such death was caused 
 by, or was in consequence of, his intoxication, and that defend- 
 ants, or one of them, sold, or gave him intoxicating liquors, 
 which produced such intoxication, in whole or in part; and 
 each of these particulars must be proved by a preponderance 
 of the evidence. 
 
 To entitle the plaintiff to recover in this suit, it is not 
 enough that the jury may believe, from the evidence, that the 
 defendants, or one of them, sold beer to the deceased, whio^i 
 contributed to cause his intoxication, in whole or in part; it 
 must fui'ther appear that the intoxication was the immediate 
 or proximate cause of liis death, and not merely xliat it wo>i 
 the remuti cause or occasion of his death. 
 
 The court instructs the jury, that to entitle the plaintiff to 
 recover against any one or more of the defendants, the jury 
 must believe, from the evidence, that such defendants sold or 
 gave intoxicating liquors to the deceased, and thereby caused 
 or contributed to cause, his intoxication, in whole or in part; 
 and so far as the injury complained of results from the death 
 of the deceased, it must appear that the death was caused by 
 such intoxication. Kratch et al. vs. Heihnan, 53 Ind., 517; 
 Ihjn vs. Fojarty, 106 III, 263. 
 
 § 9. Proximate Cause, AVhat. — In determining whether an 
 act is the proximate cause of an injury, the legal test is: Was 
 the injury of such a character as might reasonably have been 
 foreseen or expected, as tiie natural result of the act com- 
 plained of? A party is not, in law, chargeable with i-esults 
 Avhich do not naturally and reasonably follow as the conse- 
 quences of his conduct. 
 
 In determining whether the intoxication was the immediate 
 or proximate cause of the death of the deceased, the jury 
 should consider whether the causes, which actually produced 
 his death, were such as naturally resulted as a consequence of 
 the intoxication, and of such kind as might liave been reason- 
 ably antici])ated by a reasonable person. If they were not 
 such, then the intoxication cannot, in law, be regarded as the
 
 INTOXICATING LIQUORS. 275 
 
 immediate and proximate cause of his death, and tlie defend- 
 ants are responsible therefor. 
 
 If the jury believe, from tlie evidence, tliat the immediate 
 and proximate cause of the deatli of tlie deceased was either 
 apoplexy, heart disease or sunstroke, tlien tlie plaintiff cannot 
 recover in tliis case, unless the jury further believe, from the 
 evidence, that such disease was caused bj, or was the natural 
 and proximate result of tlie intoxication of the deceased, and 
 that such intoxication was caused, in whole or in part, by the 
 intoxicating: liquors furnished by the defendants, or one of 
 them ; and further, that such a result of the sale of tlie intox- 
 icating liquors mio-ht have been reasonably foreseen or antici- 
 pated by the defendants, at tlie time such liquors were sold. 
 
 As a matter of law, damages, to be recoverable, must be the 
 natural and reasonable result of the defendant's act; and if of 
 such a character as in the ordinary course of things woidd 
 flow from the act, they may be recovered, otherwise they are 
 too remote. A party cannot be lield resj^onsible for injuries 
 M'hich could not reasonably have been foreseen or ex]3ected, as 
 the result of his misconduct. Phillips vs. Diclerson, 85 111,, 
 11; 8hugaj't\B. Egan,^Z\\]., 56; Schrocder vs. Crawford, 94 
 111., 357; Hart vs. Duddleson, 20 111. App., 619. 
 
 An act is the proximate cause of an event only when, in the 
 natural course of things and under the particular circumstances 
 surrounding it, such an act would naturally produce the event, 
 and in order to create legal liability for damages, the injury 
 must be such as a man of ordinary experience and sagacity 
 could foresee might probably ensue from said act. 
 
 The court instructs the jury, that to entitle the plaintiff to 
 recover in this case, the damages claimed must be the direct 
 consequences of the act complained of. The relation of cause 
 r.iid effect must be shown to exist between the act complained 
 of and the injury; and this relation of cause and effect cannot 
 be made out by inchiding the illegal acts of a third person. 
 
 § 10. New or Intervening Cause. — The court instructs the 
 jury, as a matter of law, that while a man is answerable for 
 the natural and probable consequences of his own acts, still, if 
 his act happens to concur with something extraordinary, and 
 not reasonably to have been foreseen, and thus produce an in- 
 jury, he will not be liable therefor; provided, such extraor-
 
 276 INTOXICATING LIQUOES. 
 
 dinary and unforeseen condition was not produced by, or was 
 not the direct result of, Lis own wrongful act. 
 
 If the death of a party, who receives a wound while intoxi- 
 cated, can be traced as the natural and probable result of any 
 new and intervening cause, such as reckless exposure of him- 
 self, or amputation of the wounded limb, where an amputation 
 was not necessary, the liquor seller will not be responsible to 
 the wife for the death. 
 
 The damages to be recovered in an action must always be 
 the natural and proximate consequence of the wrongful act 
 complained of. If a new force or power has intervened, of 
 itself sufficient to stand as the cause of the mischief or injury, 
 the first must be considered as too remote. Schmidt vs. 
 Mitchell, 84 111., 195. 
 
 § 11. Preponderance of Evidence Sufficient.^ — The jury are 
 further instructed, that in civil actions of this kind, it is not 
 necessary that the fact of the sale of intoxicating liquors, or 
 any other fact necessary to a recovery, should be proved be- 
 yond a reasonable doubt; it is only necessary that the facts 
 should be proved to the satisfaction of the jury by a pre- 
 ponderance of the evidence. Mayers vs. Smith, 13 N. E. 
 Eep., 219. 
 
 § 12. Good Faith not a Mitiffation. When. — The jury are in- 
 structed, that although they may believe, from the evidence, 
 that any or either of the defendants, in good faith, instructed 
 his bar-keepei- not to sell liquor to the deceased, still, this fact 
 cannot be considered by the jury in miti<.'ation of the actual 
 damages sustained by the plaintiff, if any such have been 
 proved, in case you find such defendant or defendants guilty. 
 
 If the jury believe, from the evidence, that the deceased 
 died, from " the effect of what is known as (svnstrol'e), and 
 that that disease was, in a measure, caused by the habitual in- 
 toxication of tlie deceased, for a considerable time befo] e his 
 death, still, the defendants would not be liable for causing his 
 death, unless the plaintiff has proved, by a preponderance of 
 evidence, that the defendants, or one of them, furnished the 
 deceased with liquors, which caused such habitual intoxication, 
 in whole or in part.
 
 INTOXICATING LIQUOKS. 277 
 
 § 13. Verdict Must be. Founded on the Evidence, — In detei- 
 niiniiif^ any of the questions of fact presented in this case, the 
 jury should be govei'ned solely by the evidence introduced 
 before them; the jury have no right to indulge in sj^eculations 
 or conjectures, not supported by the evidence.
 
 CHAPTER XXVI. 
 LANDLOED AND TENANT. 
 
 Sec. 1. Relation of landlord and tenant must exist. 
 
 '2. Occupant liable for rent, when — lllinoiR!. 
 
 3. Lease not modified or surrendered — Suit for rent. 
 
 4. Surrender of premises, how eflFected. 
 
 5. Surrender must be assented to by landlord. 
 
 6. Eviction stops the rent. 
 
 7. Eviction from a part of the premises. 
 
 8. Forcible expulsion not necessary. 
 
 9. Acts of trespass, not eviction. 
 
 10. What is an eviction. 
 
 11. Landlord's lien for rent, by statute. 
 
 12. Levy of distress warrant not necessary to perfect lien. 
 
 13. Lien against purchaser from tenant, when. 
 
 14. Tenant holding over, contract implied. 
 
 15. New contract implied, when. 
 
 16. Contract not implied from holding over, when. 
 
 17. Wrongful holding uver — Illinois. 
 
 18. Tenant cannot deny landlord's title. 
 
 19. Landlord not bound to repair. 
 
 20. Title to crops. 
 
 21. Tenant's right to remove fixtures. 
 
 § 1. Relation of Landlord and Tenant Mast Exist. — The jury 
 are instructed, that this is a suit brought by the plaintiff to 
 recover rent for the use and occupation by the defendant of 
 the premises in question, and to entitle the plaintiff to recover 
 the jury must believe, from the evidence, not only that the 
 defendant occii])ied the premises, as alleged, but that he occu- 
 pied them as the tenant of the plaintiff. 
 
 Although the jury may believe, from the evidence, that the 
 plaintiff was the owner of the proj:)erty in question during tlie 
 time alleged and that the defendant occupied the same during 
 etc., still this would not authorize the plaintiff" to recover 
 unless the jury believe, from the evidence, that the defendant 
 acknowledged the rights of the plaintiff' in the property and he 
 held the same under tlie ]:)laintiff*. Lochtooocl vs. Thunder 
 
 (278)
 
 LANDLORD AND TENANT. 279 
 
 Baij^ etc.^ 42 Mich., 536; Moses vs. Arnold^ 43 Iowa, 187; 
 JSfoyes vs. Loving, 55 Me., 408; Cent. Hills Co. vs. Ilart, 124 
 Mass., 123; Moore vs. Harvey, 50 Yt., 297; Gallagher vs. 
 Jlirnilherger, 57 Ind., 63. 
 
 § 2. Occupant, Liable for Rent, When — Illinois. — The court 
 further instructs the jury, that under the laws of this state, in 
 all eases where lands belongini^ to one person are held and 
 occupied b}^ another, without any special agreement for the 
 Irent of such ])reniises, the owner of the land may sue for, and 
 recover as rent, a fair and reasonable satisfaction for such use 
 and occupation of his land. 
 
 The court further instructs the jury, that if they believe, 
 
 from the evidence, that the plaintllf, during the year was 
 
 the owner of the land for which rent is claimed in this suit, 
 and that the defendant, during the same year, used and occu- 
 pied said ]U'emises, by pasturing his cattle thereon, without 
 any special agreement as to the payment of rent, then under 
 the laws of this state, the plaintifl: has the right to recover in 
 this suit, what such use and occupation was reasonably worth, 
 under the evidence in this case. R. S. 111., Chap. SO, § 1. 
 
 § 3. Lease not Modified or Surrendered — Suit for Rent. — The 
 
 court instructs the jury, that if they believe, from the evidence, 
 that on or about, etc., the plaintiff and defendant entered into 
 a verbal contract, by which the defendant rented the premises 
 in question of the plaintiff for the then coming season, or for 
 the then next year, and agreed to [xay as rent therefor the 
 
 sum of % , and the jury further believe, from the evidence, 
 
 that that contract has never been modified, or rescinded, by 
 any subsequent agreement of the parties, and that the defend- 
 ant occupied the premises, under such original contract, then 
 the plaintiff will have the right to recover the amount, so 
 agreed to be paid as rent, from the defendant in this action. 
 
 If the jury believe, from the evidence, that the lease in 
 question was executed by the i)laintiff' and defendant, and that 
 the defendant went into the possession of the premises, under 
 said lease, and also, that said lease has never been canceled, or 
 surrendered, by the agreement of the parties, then the jury 
 should find for the plaintiff, for the time during which they
 
 280 LANDLORD AND TENANT. 
 
 believ(3, from the evidence, the rent lias remained imj.aid, at 
 
 the rate of S per year, unless the jury further believe, 
 
 from the evidence, that the contract was subsequently modi- 
 fied, by agreement of the parties, and the rent reduced to 
 
 $ per year, in wliich case the jury should calculate the 
 
 rent due, at the rate of § a^-ear, since the making of such 
 
 new arrangement, less the amount [laid thereon, if they find, 
 from the evidence, that any portion of the rent, coming due 
 after that date, has been paid. Strobie vs. Dills, 62 111., 432. 
 If the jury believe, from the evidence, tliat the plaintiff 
 and defendant executed the lease, introduced in evidence, and 
 that the defendant entered into possession of the premises, 
 therein described, under such lease, then the defendant is 
 liable to pay to the plaintiff the amount of the rent accrued 
 thereon, up to the day of, etc., aftei' deducting such payments 
 as the jury believe, from the evidence, have been made there- 
 on, unless the jury further believe, from the evidence, that 
 said lease has been canceled, surrendered or modified, by some 
 subsequent agreement between the parties. 
 
 § 4. Surrender of Premises, How Effected. — In respect to the 
 alleged surrender of the premises, the court instructs the jury, 
 that a valid surrender of a lease, and of the estate thereby 
 created, can only be made by a mutual agreement, or assent 
 of the landlord and tenant, to that effect. Helson vs. Thomp- 
 son, 23 Minn., 50S; Morgan vs. Smiih, 70 IS". Y., 537; Ladd 
 vs. Smith, 6 Oreg., 316. 
 
 § 5. Surrender Must be Assented to by Landlord. — The jury 
 are instructed, that no surrender of the premises in question, 
 by the defendant, could take effect unless the jilaintift', by him- 
 self or by some authorized agent, accepted such surrender; and 
 although the jury may believe, from the evidence, that the 
 defendant vacated the premises in controversy, and gave notice 
 thereof to the plaintiff, yet this alone would not exonerate 
 the defendant from the payment of rent thereafter, unless the 
 surrender was assented to by the plaintiff, as a surrender of the 
 possession to him. Taylor's Land, and Ten., § 515. 
 
 The jury are instructed, that although they may believe, 
 from the evidence, that the defendant moved away from the
 
 LANDLORD AND TENANT. 2S1 
 
 premises in question, and sent tlie keys of tlie building to 
 the plaintilt', and that the plaintiff retained the keys, this alone 
 would not constitute a surrender of the j)reniises by the de- 
 fendant, and an acceptance of such surrender by the plaintiff. 
 Townsend vs. Albert, 3 E. D. Smith, oGU; Withers vs. Larra- 
 lee, 48 Me., 570. * 
 
 That to constitute a valid surrender of a lease, or of leased 
 premises, there must be an offer to surrender by the tenant 
 and such offer must be accepted by the landlord. 
 
 § 6. Eviction Stops the Rent. — The principle upon which a 
 tenant is required to pay rent, is the benelicial enjoyment of 
 the premises unmolested in any way by tlie landlord; and in 
 this case, if the jury believe, from the evidence, that after de- 
 fendant went into possession of the premises, the plaintiff" took 
 possession' of any part of the premises leased, against the con- 
 gent of the defendant, and in such a way as to prevent the de- 
 fendant having the beneficial use of all the premises leased, 
 this in law is an eviction, and releases the defendant from the 
 payment of any more rent while such eviction continues. 
 
 § 7. Eviction from a Pai't of the Premises. — Althougli tlie 
 jury may believe, from the evidence, that the defendant has 
 never been disturbed in, or evicted fi'om, the main building 
 on tlie leased premises, and that he has had the use and enjo}^- 
 ment of the same, still, if they further believe, from the evi- 
 dence, tliat the plaintiff has taken possession of any material 
 part of the premises leased without the consent of the defend- 
 ant, this in law is an eviction, and the defendant is not bound 
 to pay any rent, during the time of such eviction, for the part 
 of the premises which he did use and occupy. Taylor's Land. 
 & Ten., § 378; WalJter vs. Tucker, 70 111., 527; Leiois vs. Payii, 
 4 Wend., 423; Colhurn vs. Morrill, 117 Mass., 262; Day vs. 
 Watson, 8 Mich., 535: Skaggs vs. Emerson, 50 Cal., 3. 
 
 § 8. Forcible Expulsion not Necessary. — Forcible expulsion is 
 not necessary to cause an eviction; any act done in violation 
 of the rights of the tenant without his consent, which de- 
 prives him of the beneficial use and enjoyment of a material 
 part of the premises leased, will amount to an eviction; if the
 
 2S2 LANDLORD A>'D TENANT. 
 
 juiy in tills case believe, from the evidence, that the plaintiff, 
 after making the lease, -without the consent of the defendant, 
 took possession of any material part of the premises leased, 
 then the defendant is released frum the payment of all rent 
 accruing after that date. Taylor's Land, and Ten., § 3S1. 
 
 If you believe, from the evidence in this suit, that the 
 plaintiff, after leasing the premises to the defendant, leased a 
 part of said premises to one II. W., who has since taken pos- 
 session of the same under the lease to him, then in law this is 
 an eviction from the time the said H. W. so took possession, 
 and the defendant is released from the payment of all rent ac- 
 cruing during such eviction. Smith vs. Wiseet al., 58 111., lil. 
 
 If you believe, from the evidence, that the defendant was 
 a tenant of the premises at the time in question, under a lease 
 from the plaintiff, and that against defendant's consent, and 
 without any understanding or agreement permitting it, the 
 plaintiff tOi>k possession of any material part of said premises 
 and evicted the defendant therefrom, and prevented him from 
 using and occupying the same, then such eviction worked an 
 extinguishment of all rent for the whole of said premises 
 from the time such eviction occurred, notwithstanding the 
 defendant continued to occui)y a portion of said premises 
 after that time. Price vs. P., Ft. W. d; C. By. Co., 34 111., 13. 
 
 § 9. Acts of Trespass not Eviction. — The court instructs the 
 jury, that to constitute an eviction there must be something 
 more than a mere trespass by the landlord; there must be some- 
 thing of a ]iermanent character done by him. with the intention 
 of depriving the tenant of the enjoyment of the ]iremises, or of 
 some part thereof. The question of eviction or no eviction is 
 a question to be decided by the jury, in view of all the facts 
 and circumstances proved on the trial. 
 
 The jury are instructed, that while the law is, that if the 
 tenant loses the benefit of the enjoyment of any material \)ov- 
 tion of the demised premises by the willfu' act of the landlord, 
 the rent is thereby suspended, yet to have this effect the act 
 of the landlord must be something more than a mere trespass; 
 it must be something of a permanent character, and have the 
 effect of dei)riving the tenant of the enjoyment of the ]»rem- 
 ises from which the eviction is alleged. Taylor's Land, and 
 Ten., § 380; Lynch v. Baldtoin, 69 111., 210.
 
 LANDLOKD AND TENANT. 283 
 
 § 10. AVliat Constitutes Eviction. — The court instructs the 
 jury, that some acts of interference by the landlord with the 
 tenant's enjoyment of the premises may be mere acts of tres- 
 pass, or they may amount to an eviction. The question 
 whether they ])artake of the latter character depends upon the 
 intention with which they are done, and the character of the 
 acts. If they clearly indicate an intention on the landlord's 
 part that the tenant should no longer continue to hold the 
 premises, and he thereby lose? the beneficial use of the same, 
 this would constitute an eviction; otherwise they, would 
 amount to no more than acts of trespass. Haynes et al. vs. 
 Sjnith, 63 111., 430; Taylor's Land, and Ten., § 380; Mijers vs. 
 Gemmel, 10 Barb., 537; Ilazlett vs. Powell, 30 Penn. St., 293; 
 Mirick vs. Hoppin, 118 Mass., 582. 
 
 To constitute an eviction the acts of interference by the 
 landlord with the tenant's possession must clearly indicate an 
 intention, on the part of the landlord, that the tenant shall no 
 longer continue to hold the premises, or some material part 
 thereof. Ilon'lss vs. Tlllson, 81 111., 607. 
 
 § 11. Landlord's Lien for Rent — By Statute. — The jury are 
 instructed, that the statute of this state gives a landlord a lien 
 upon the crops grown or growing upon the demised premises, 
 in any year, for the rent that shall accrue for that year, 
 whether the rent be payable in money, labor, or a share of the 
 crops raised; and this lien is not confined to any particular 
 crop, but embraces all the crops, or any portion of them, no 
 matter upon which particular part of the premises they were 
 raised, Thomp'^ori vs. Mead, 67 111., 395. 
 
 Under our statute the landlord has a lien upon the crops 
 grown and growing upon the demised premises, in any year, 
 for the rent thereof for that year, and such lien continues for 
 the period of six months after the expiration of the term for 
 whicli the premises were rented, and no levy of the crops thus 
 grown, or sale, under an execution against the tenant, will 
 divest tlie landlord of such lien. Miles vs. James, 36 111., 399. 
 
 The law of this state gives a landlord a lien upon the crops 
 grown or growing upon the premises, in any one year, for the 
 rent thereof for that year, and it does not matter whether 
 the crops are raised by the tenant to whom the premises were
 
 2S4: LANDLORD AND TENANT. 
 
 leased by the landlord in the first instance, or whether they 
 were raised by a sub-tenant under such prior lease. U/il vs. 
 Digliton, 25 111., 154. 
 
 § 12. Levy of Distress Warrant not Necessary to Perfect Lien. 
 
 — The court instructs the jury, that the law gives the landlord 
 a lien upon the crops grown or growing upon the rented prem- 
 ises, in any one year, for the rent of that year; that such lien 
 does not depend upon the levy of any distress warrant, but is 
 given by the statute, and no creditor of the tenant can defeat 
 the landlord's lien by levying an attachment or an execution 
 upon the property before the issuing of a distress warrant by 
 the landlord. Mead vs. Thomjpson^ 78 111., 62. 
 
 § 13. Lien against Purchaser from Tenant, AVhen. — That a 
 purchaser of grain raised by a tenant, upon which the landlord 
 lias a lien for rent, with full knowledge of that fact, and that 
 the rent is not fully paid, wall be liable to the landlord for the 
 rent due to the extent of the value of the grain purchased by 
 him. 
 
 The court instructs the jury, that the lien given to a land- 
 lord upon the crops grown or growing upon the demised 
 premises, in any one year, for the rent of that year, cannot be 
 defeated by a sal<^. of such crop, or any portion of it, by the 
 tenant to a person who has notice of the fact of the tenancy, 
 and that the crop was raised on the premises rented. 
 
 And when a purchaser of corn from a tenant knows of the 
 fact of tenancy, and that his vendor, as such tenant, had raised 
 the corn on the demised premises, this will be notice to him 
 of any lien the landlord may have upon the same for unpaid 
 rent. Watt vs. Scofield, 76 111., 261. 
 
 The court instructs the jury, that if they believe, from the 
 evidence, that when the defendant purchased the grain in 
 question he knew that A. B. rented from the plaintiff the land 
 M'hereon the grain was raised, and that he neglected and failed 
 to inquire into the facts regarding the plaintiff's lien thereon, 
 to the extent that a reasonably prudent man should have done 
 under the circumstances proved, then the jury should find for 
 the plaintiff. Prettyman vs. Unland, 11 111., 206. 
 
 § 14. Tenant Holding Over — Contract Implied. — The court
 
 LANDLORD AKD TENANT. 285 
 
 instructs the jury, that when a tenant holds over after the ex- 
 piration of his term. Avith the assent of the landlord, expressed 
 or implied, if there is no special agreement to the contrary, 
 it will be upon an implied agreement or liability to pay rent 
 thoroafter on the same terms as to amount and times of 
 payment as were provided in the original lease. Taylor's 
 Lmd. and Ten., § 525; Glapp vs. Noble, 84 III., '62; Weston 
 vs. Weston^ 102 Mass., 514; Sckuyler vs. Smith, 51 N. 7., 309; 
 Bacon vs. Brown, 9 Conn., 331; Finney vs. St. Louis et al., 
 39 Mo., 177. 
 
 When a person rents property for a definite period of time, 
 as for a year, and the tenant remains in ])Ossession of the 
 premises, holding over after the expiration of the term for 
 which the ]iroperty was rented, and after a reasonable time for 
 surrendering np the possession, with the consent of the land- 
 lord, expressed or implied, but without any new agreement, 
 the law will imply a new leasing for the same length of time 
 as the original leasing and upon the same terms. 
 
 In this ca^e, if you believe, from the evidence, that some 
 time, or about, etc., the defendant leased the premises in ques- 
 tion for the then next ensuing season {or year), agreeing to pay 
 
 therefor the sum of § ; and if you further believe, from 
 
 the evidence, that after the expiration of that lease the defend- 
 ant went on in the use and occupation of the premises, in the 
 same manner as he had used them under the lease, with the 
 consent of the plaintiff, but without any new contract between 
 the parties, until the month of, etc., then the law would imply 
 
 a new renting for the season {or year) of , upon the same 
 
 terms as the original renting. 
 
 Where a tenant ho-ds over after the expiration of his lease, 
 a continuance of the tenancy on the same terms will be pre- 
 sumed against him; and where a tenant, from year to year, 
 continues to occupy and enters upon another year, with the 
 knowledge of the landlord, without objection from him, a ten- 
 ancy for another year is thus created, upon the same terms 
 and conditions as those of the year before. 
 
 § 15. New Contract Implied, When. — That when a tenant, 
 under a lease from year to year, is notified by his landlord, 
 before the expiration of his term, that if he occupies the
 
 286 LANDLORD AND TENANT. 
 
 premises another year he will ha%'e to pay a certain increased 
 rent, and the tenant holds over without any further contract 
 or understanding between the parties, such act of holding over 
 will be construed as an implied agreement that he will hold 
 the premises upon the new terms imposed. Desjpard vs. 
 Walhridge, 15 K T., 374; Ilhjglns vs. Halligan, 46 111., 173; 
 Hunt vs. Bailey, 39 Mo., 257. 
 
 § 16. When Contract not Implied from Holfling Over. — If the 
 
 jury believe, from the evidence, that tlie plaintiff never con- 
 sented to remain in the ]iromisesfor any term after the expira- 
 tion of his lease, but merely held over for six or seven days, 
 and then moved out, and never paid any rent after the 
 expiration of his lease, nor did anything indicating any inten- 
 tion to stay in the premises for any further term after such 
 expiration, then he is only liable to pay the rent for the time 
 he did stay in the premises. 
 
 The jury are instructed, as a matter of law, that where a 
 tenant occupies premises under a lease for a year or years and 
 holds over after the expiration of the lease without making 
 any new arrangement with the landlord, regarding such hold- 
 ing over, then the tenant may, at the election of the landlord, 
 be treated as a tenant for another year upon the terms of the 
 original lease. Whether in this case the defendant did hold 
 over after the termination of his lease, and if he did, whether 
 such holding over was with the consent of the plaintiff, or 
 under any new arrangement between the parties, are all ques- 
 tions of fact to be determined by the jury from the evidence 
 in the case. 
 
 The jury are instructed, that the mere holding over by a 
 tenant after the exjDiration of his lea^^e without any new 
 arrangement or agreement with his landlord, is not of itself 
 sufficient to create a new tenancy from year to year, but in 
 snch case, if the landlord elects to consider such holding over 
 a renewal of the tenancy, it will in law amount to such re- 
 newal. But whether in this case, etc. (as in last instruction 
 to the end). 
 
 § 17. Wrongful Holding Over — Illinois. — The court instructs 
 the jury, that when a lease has expired by its terms and the
 
 LANDLOKD AND TENANT. 287 
 
 tenant holds over, sueli holding, though intentional, is not with- 
 in the statute imjiosing the j^enalt}' of double rent, unless snch 
 holding over is knowingly and willful!}' wrongful. When a 
 tenant continues to hold over, after the expiration of his lease, 
 under a reasonable belief that he was doing so rightfully, he does 
 not incur the penalty of donl:)le rent for holding over. 
 
 That the question whether the defendant wrongfully held 
 over the possession of the premises after the expiration of his 
 lease, is a question of fact to be determined by the jury, from 
 all the evidence in the case ; and though the jury may believe, 
 from the evidence, that the defendant did hold over wrong- 
 fully, still if they further believe, from the evidence, that the 
 defendant had reasonable grounds for believing, and did be- 
 lieve, he had a right to hold over, then he would not be liable 
 to the penalty of paying double rent for the premises. Stewart 
 vs. HaTnilton, 66 111., 255. 
 
 § 18. Tenant Cannot Deny Landloi'd's Title. — ^The court in- 
 structs the jury, as a matter of law, that a tenant is not per- 
 mitted to deny the title of his landlord to the premises leased 
 nor the title of those who hold under the landlord. And in 
 this case, if the jury believe, from the evidence, that the de- 
 fendant leased the ])romises in question from the mother of 
 the plaintiff, and took possession of the same under such lease, 
 and has not since surrendered u]) such ]iossession, then, if the 
 jury further believe, from the evidence, that the mother of 
 plaintiff is dead, and that she willed the premises to the plaint- 
 iff, as claimsd, then the defendant is not i')ermitted to deny 
 the plaintiff's title, so long as the defendant remains in such 
 possession. 
 
 § 19. Landlord not Bonnd to Repair. ^ — The jury are instruct- 
 ed, that under the lease introduced in evidence the landlord 
 was under no obligation to make repairs on the premises, or to 
 p^y for any made by defendant; and unless the jury believe, 
 from the evidence, that some subsequent agreement or arrange- 
 ment has been made by the parties, by which the ])laintiff has 
 agreed to make such repairs, or to pay for those made by de- 
 fendant, then, as to the question of repairs, the jury should 
 find for the plaintiff.
 
 288 LAKDLOKD AKD TE^■AXT. 
 
 That without some express agreement to that effect, a land- 
 lord is under no obligation to make rej^airs on the premises 
 during the time for which thej are leased. Taylor's Land, 
 and Ten., § 327. 
 
 § 20. Title to Crops. — The title to the crop raised on rented 
 land is not in the landlord, so as to empower him to sue for 
 and recover upon it in trespass, or its value in trover. He has 
 a special lien upon it given by statute, which maybe enforced 
 by distress for rent. Morrill vs. Barnes, 5T Ga., 404. 
 
 The law is, in the case of a leasing of land for a share of the 
 crops raised, to be divided after they are raised and gathered, 
 that the title to the whole of the crop will be and remain in 
 the tenant, until the crop has been divided and possession 
 given to the landlord of his share. Sargent vs. Courrier, QQ 
 111., 24.5; Townsend vs. Is^'^herger, 45 la., 670. 
 
 In farming on shares, the tenant, as against the landlord, is 
 entitled to the possession of the whole crop while it is grow- 
 ing, and may recover damages from the landlord if the cattle 
 of the latter wrongfully break into the lield and injure the 
 crop. Front vs. Hardin^ 56 Ind., 165. 
 
 Note. — It seems, the tenant, fanning land on shares, cannot sue the land- 
 lord in trespass to recover for injury done to the growing crop by live stock 
 belonging to the landlord, for the parties are co-tenants of the property. 
 Wells vs. HoUeiibeck, 37 Mich., 504. 
 
 § 21. Tenant's Right to Remove Fixtures. — If the jury believe, 
 from the evidence, that the defendant, while occupying the 
 ])remises in question under a lease from the plaintiff, erected 
 the (cj'ibs) in controversy for his own use and benetit while he 
 should occupy the farm and without any agreement or under- 
 standing with the plaintiff that they should be left on the 
 ))lace, then the defendant had a right to take down and remove 
 the cribs at any time before or at the expiration of his lease. 
 
 If the defendant leased the storeroom in question of the 
 plaintiff for the period of, etc., and afterwards, for his own use 
 and benefit, placed the (counters) in controversy in the build- 
 ing with the intention of removing the same at the expiration 
 of his lease, and without any agreement or understanding witli 
 the yjlaintiff that they would be left in the builcling, then the 
 de endant had the right, etc.
 
 LANDLORD AND TENANT. 2S9 
 
 Tbe Jury are instructed, as a matter of law, that a tenant's 
 right to remove a building or other improvement placed on 
 leased land is restricted to the duration of his tenancy. If not 
 removed before the tenant abandons the premises the build- 
 ing or other improvement becomes a part of the freehold and 
 belongs to the owner of the land. Griffin vs. Ransdell^ 71 
 Ind., 440 ; Watriss vs. Cambridge Bank, 124 Mass., 571 ; Mer- 
 ritt vs. Judd, 14 Cal., 59 ; Ewell on Fixtures, 143. 
 
 If a tenant omit to remove fixtures placed by him on the 
 leased premises, until after his right to use and occupy the 
 premises has expired, and his possession has become wrong- 
 ful, then he is deemed to have abandoned his right of re- 
 moval, and, if he afterwards remove them, he is a trespasser. 
 Cromie vs. Hoover, 40 Ind., 49. 
 19
 
 CHAPTER XXVII. 
 LIMITATIONS. 
 
 Sec. 1. Statute a bar, when. 
 
 2. Payment, a new promise. 
 
 3. When the statute begins to run. 
 
 4. Running accounts. 
 
 5. Absence from the State, 
 
 6. Debt revived by new promise. 
 
 7. ]\Iust be a promise to pay the debt. 
 
 8. What amounts to a promise. 
 
 9. What is not a promise. 
 10. Fraud and deceit. 
 
 § 1. Statute a Bar, When. — The court instructs the jury, 
 that in cases like the one on trial, unless the suit is commenced 
 within {five) years after the cause of action accrues, then the 
 statute of limitations is a complete bar. And, in this case, if 
 the jury believe, from the evidence, that suit was not com- 
 menced within {five) years after the cause of action accrued, 
 that is within {five) years after the debt sued for became due, 
 tlien the statute of limitations is a complete bar to this suit, 
 and the jury must find for the defendant; unless the jury 
 further believe, from the evidence, that the defendant has 
 made a new promise to pay the debt within {five) years of the 
 commencement of the suit. 
 
 § 2. Payment a New Promise. — If the jury believe, from 
 the evidence, that prior to the spring of, etc., there has been a 
 running account between the plaintiff and defendant, and that 
 at that time the defendant made a payment to the plaintiff 
 upon that account generally, then a suit by either ])arty for 
 any balance claimed to be due on such account could have 
 been brought by such party at any time within {five) years 
 from the date of such payment. 
 
 § 3. When the Statute Begins to Run. — As regards the de- 
 
 (290)
 
 LIMITATIONS. 291 
 
 fense of the statute of limitations interposed in tliiscase, the J1117 
 are instructed, that if one person gives credit to another until 
 he gets into a certain condition financially, or until the happen- 
 ing of a certain event or contingency, then a cause of action 
 will not arise until the party gets into such financial condition, 
 or until such event or contingency has happened ; and the 
 statute of limitations does not begin to run until the cause of 
 action has arisen, that is, until a suit could be brought for the 
 debt. 2 Par. on Cont., 370 ; See Bradly vs. Cole, 25 K W. 
 Rep., 851, note. 
 
 You are instructed, that the statute of limitations does not 
 begin to run, in any case, till the cause of action has accrued ; 
 that is, not till the party has a right to sue and recover on the 
 demand; and when a credit has been given, the statute does 
 not begin to run till the credit has expired. 
 
 And, in this case, if you believe, from the evidence, that 
 any credit was given by plaintiff to defendant, then the {five) 
 years' limitation did not begin to run until the expiration of 
 that credit. 
 
 § 4. Running Accounts. — The court instructs the jury, as 
 a matter of law, that in the case of running accounts between 
 ]iarties, the date of the last transaction, which was properly 
 the subject matter of entry in sucii account, or the date when 
 such item became payable, is the time at which the right of 
 action accrues for the recovery, by either party, of any balance 
 remaining due on such accounts. Bradly vs. Cole, 25 N. W. 
 Rep. 852, note. 
 
 If there be mutual running accounts between parties, and 
 there is any item for which a credit or a charge could be 
 pro|)erly made within {five^ years before bringing suit, or 
 where a payment has been made by one of the parties upon 
 the account within {^five^ years, such credit, charge or pay- 
 ment is evidence of a promise implied by law to pay thj 
 balance of such account. And, in such case, a suit for such bal- 
 ance, if brought witliin {^five) years after such credit, charge or 
 payment, is not barred by the statute of limitations. BuTch 
 vs. Woodworth, 36 K W. Rep. 721. 
 
 If you believe, from the evidence, that there are mutual 
 running accounts between the parties, and involved in this
 
 292 LIMITATIONS. 
 
 suit, and that any items thereof were created in favor of the 
 respective parties witliin i^fivi) years prior to the commence- 
 ment of this suit, then the statute of limitations should not 
 be allowed as a bar against any part of such accounts, whether 
 for plaintifl: or defendant. And, in such case, it is immaterial 
 whether such demands, or any part thereof, consist of book 
 accounts, or rest merely in memory; neitlier is it material, in 
 such case, whether any or all of such demands consist of 
 money loaned, goods furnished, labor performed, or for board 
 or rent. In either case tlie whole of such accounts should be 
 taken into consideration by the jury, without reference to the 
 statute of limitations. Angell on Lim., § 147; 2 Greenleaf 
 Ev., § 445; Ilannon vs. £ngleman, 5 N. W. Kep. 791. 
 
 § 5. Absence from the State. — The jury are instructed, that 
 if a party be out of the state, so that process cannot be served 
 .on him at the time the cause of action accrues, then the 
 statute does not commence to run until he returns witliin the 
 state again; and, in such case, it is not necessary that the party 
 should absolutely remove from the state, without an intention 
 of returning. Any absence from the state, when the cause of 
 action accrues, suspends the operation of the statute for the 
 time being. 
 
 You are instructed, that if a party is residing within this 
 state when the cause of action against him accrues, then, in 
 order that his absence from the state shall suspend the opera- 
 tion of the statute, it must appear not only that he has left 
 the state, but also that he resides out of the state. {111. 
 Statute.) Bradlij vs. Cole, 25 K. W. Rep. 857, note. 
 
 § 6. Debt Revived by New Promise. — The jury arc instructed, 
 that where there has once been a legal obligation to pay, and 
 it has become barred by the statute of limitations, the moral 
 obligation to pay the debt is a sufficient considei-ation to sup- 
 port a subsequent promise to pay; and in this case, though the 
 jury may find, from the evidence, as to any of the plaintiff's 
 demands, that the same were once due from the defendant, 
 but that the cause of action accrued more than {five) years 
 prior to the commencement of this suit, yet, if the jury 
 further find, from the evidence, that the defendant has, within
 
 LIMITATIONS. 293 
 
 tLe siild period of {ji^^e) years, promised the plaintiff to pay 
 such debt, then, as to snch demand, the jury should find for 
 the plaintiff. Bradly vs. Cole, 25 N. W. Eep., 857, note. 
 
 § 7. The Promise Must be a Promise to Pay the Debt. — The 
 
 jury are instructed, tliat when a new promise is relied upon to 
 take a case out of the statute of limitation, the promise must 
 be a promise to pay the debt. The word promise need not be 
 used, but there must be language used from which a promise 
 may be fairly implied. 
 
 § 8. What Amounts to a Promise. — If the jury believe, from 
 the evidence, that the defendant, upon the occasion when the 
 new promise is claimed to have been made, said to the plaint- 
 iff, ("/ know the deht is due, and ought to le paid,''''') this lan- 
 guage would authorize the jui-y to infer a promise to pay the 
 debt. 
 
 § 9. What is Not a Promise. — If the jury believe, from the 
 evidence, that upon the occasion referred to by the witnesses, 
 the defendant said, {''■that account is correct,^^) or, {^'^ I received 
 the money, ^^) or ("/ had. the goods,^^) or (" that is my note,^^) 
 this would not alone amount to a promise to pay the debt. 
 Ayers vs. R'lchards, 12 111., 146. 
 
 § 10. Fraud and Deceit. — The court instructs the jury, that 
 in the case of a claim or demand founded on fraud and deceit, 
 the statute of limitation does not begin to run until after the 
 fraud and deceit are discovered by the injured party. Mc- 
 Alpine WQ. Hedges, 21 Fed. Ke p., 689; Odell y&. Burnham, 
 01 Wis., 562; Parker vs. Kahn, 21 N. W. Eep., 74. 
 
 Though you may believe, from the evidence, tliat a fraud 
 was practiced upon the plaintiff in manner and form as charged 
 in his declaration, still, if you further believe, from the evi- 
 dence, that the plaintiff discovered the fraud, or by the use of 
 reasonable care and diligence could have discovered it, more 
 than [five) years prior to the commencement of this suit, then 
 the statute of limitations constitutes a bar to the plaintiff's 
 right to recover, and you should find for the defendant. 
 
 If you believe, from the evidence, that a fraud was prac-
 
 294 LIMITATIONS. 
 
 ticed upon the plaintiff, as charged in his declaration, still, if 
 you further believe, from the evidence, that it was done more 
 than {five) years prior to the commencement of this suit, then, 
 under the pleadings in this case, the statute of limitations bars 
 the plaintiff's right of recovery against the defendant.
 
 CHAPTER XXVIII. 
 
 MALICIOUS PROSECUTIO:^^. 
 
 Sec. 1. What must be proved. 
 
 2. Charge must be willfully false. 
 
 3. What is probable cause. 
 
 4. Arrest without probable cause. 
 
 5. Malice may be inferred from want of probable cause. 
 
 6. Burden of proof on the plaintiff. 
 
 7. What is a want of probable cause. 
 
 8. Want of probable cause cannot be inferred from malice. 
 
 9. Not necessary that a crime should have been committed. 
 
 10. The prosecution must be ended. 
 
 11. Discharge by the justice. 
 
 12. Advice of counsel. 
 
 13. Presumption from good character. 
 
 § 1. What Must be Proved. — The court instructs tlie jury, 
 that if they believe, from the evidence, that the defendant 
 maliciously caused the arrest and imprisonment of the plaint- 
 iff, without probable cause, as alleged in the declaration, then 
 the jury should find for the plaintiff, and assess his damages 
 at what they think proper, from the facts and circumstances 
 proved, not exceeding, however, the amount claimed in the 
 declaration. 
 
 If the jury believe, from the evidence, that the defendant 
 had probable cause to believe that the plaintiff was guilty of 
 the offense charged against him, then it is not material whether 
 tlie defendant was actuated by proper or improper motives in 
 instituting the criminal proceedings against the plaintiff. To 
 authorize a recovery in this class of cases it must not only 
 appear that the defendant was actuated by malice, but the jury 
 must further believe, from the testimony, that tlie defendant 
 hflid no probable cause, or no reasonable ground, to believe 
 that the plaintiff was guilty of the offense charged against 
 liim. And the court furtlier instructs the jury, that probable 
 cause means a reasonable ground of suspicion, supported by 
 circumstances in themselves sufficiently strong to warrant a 
 
 (295)
 
 296 MALICIOUS PKOSECUTION. 
 
 reasonably cautious man in the belief that the person accused 
 is guilty of the offense charged, Ames vs. Snider^ 69 111., 
 376; FlicMnger vs. Wagyier, 46 Md., 5S0; Josselyn vs. McAl- 
 lister, 22 Mich., 300; Carey vs. Sheets, 67 Ind., 375. 
 
 The court instructs the jury, that want of probable cause, 
 though negative in its character, must be shown by the plaint- 
 iff, by affirmative evidence, and the jury have no right to infer 
 it from any degree of malice which may be proved. Brown 
 vs. Smith, 83 111., 291; Cottrell vs. Richmond, 5 Mo. App., 
 588; Lavender vs. Hodgins, 23 Ark., 763; Smith vs. Zeyit, 59 
 Ind., 362; Evens vs. Thompson, 12 Heisk., 534. 
 
 § 2. Charge must be Willfully False. — To sustain the charge 
 of malice, the criminal charge must appear, by a preponder- 
 ance of the evidence, to have been willfully false. To sustain 
 a suit for malicious prosecution, the facts onglit to be such as 
 to satisfy any unprejudiced, reasonable mind that the accused 
 had no ground for the prosecution, except his desire to injure 
 the accused. Ilarjyham vs. Whitney, 77 111., 32. 
 
 § 3. "VMiat is Probable Cause. — That to constitute probable 
 cause for a criminal prosecution, there must be such reasona- 
 ble grounds of suspicion, supported by circumstances, sutii- 
 ciently strong in themselves, to warrant an ordinarily cautious 
 man in the belief that the person arrested is guilty of the 
 offense charged. Cooley on Torts, 181; Farnam vs. teeley, 
 56 K Y., 451; Wineliddle vs. PorterfieU, 9 Penn. St., 137; 
 Collins vs. Hayte, 50 111., 353; Fagnan vs. Knox, ^^ N. Y., 
 525. 
 
 Upon the question, whether the defendant had probable 
 cause for commencing, etc., the jury are instructed, that the 
 true inquiry for them to answer is not what were the actual 
 facts as to the guilt or innocence of the plaintiff, but what did 
 the defendant have reason to believe, and what did he believe in 
 reference thereto, at the time he made the complaint. Gal- 
 loway vs. Burr et at., 32 Mich., 332. 
 
 The jury are instructed, that a mere belief that an innocent 
 man is guilty of a crime, is not alone suflScient to justify caus- 
 ing his arrest — the facts must be such as would justify an ordi- 
 narily intelligent and a reasonably prudent person in entertain-
 
 MALICIOUS PROSECUTION. 297 
 
 ing sncli belief. Wliether, in tiiis case, such facts had come 
 to the knowledge of the defendant at the time he entered the 
 complaint against the plaintiff, is a question of fact for the 
 jury to determine from a preponderance of evidence. Haijs 
 y^^ Blizzard, 30 Ind., 457. 
 
 The jury are instructed, that in determining whether the de- 
 fendant had probable cause to believe that the plaintiff was 
 guilty, etc., they should consider that question in reference to 
 the facts and circumstances relating thereto, and whicli influ- 
 enced him in commencing proceedings against the plaintiff, as 
 they were known or as they reasonably appeared to be at the 
 time he made the complaint, and not by the facts an 1 circum- 
 stances as they have been developed by the evidence on this 
 trial. Scott vs. SJieler, 28 Gratt, 891. 
 
 If you believe, from the evidence, that defendant had prob- 
 able cause to institute the criminal proceedings, then the 
 plaintiff cannot recover in this suit; and probable cause is 
 deiined to be reasonable ground for suspicion, supported by 
 circumstances sufficiently strong themselves to warrant an im- 
 partial and reasonably cautious man in the belief that the pei*- 
 son accused is guilty of the offense with wliich he is charged. 
 Smith vs. Zent, 58 Ind., 362. 
 
 Probable cause for instituting a criminal prosecution is a 
 reasonable ground of suspicion, supported by circumstances 
 sufficiently strong in themselves to warrant a cautious man in 
 the belief that the person accused is guilty of the offense 
 charged. Galloway vs. Burr, 32 Mich., 332; Ames vs. Sni- 
 der, 69 111., 376. 
 
 § 4. Arrest without Probable Cause.— If the jury believe, 
 from the evidence, that the defendant maliciously caused the 
 arrest of the plaintiff, on a criminal charge, without probable 
 cause to believe that he was guilty of the crime alleged agiinst 
 him, as charged in the declaration, then the jury should lind 
 the defendant guilty. 
 
 § 5. Malice may be Inferred from Want of Probable Cause. — 
 
 The court instructs the jury, that if they believe, from the 
 facts and circumstances proved on this trial, that defendant 
 had not probable cause for prosecuting the plaintiff, and that
 
 298 MALICIOUS PROSECUTION. 
 
 lie did prosecute liim, as charged in tlie declaration, tlien the 
 jury may infer malice from such want of probable cause. 
 Cooley on Torts, 185; Ewin.g vs. Sanford, 19 Ala., 605; 
 RarT^rader vs. Moore, 44 Cal., 144; Pankett vs. Liverinore, 5 
 Clarke {l^.),2T7;' Kncg vs. Ward, 77 111., 603; IMlidaj/ v&. 
 Sterling, 62 Mo., 321; Edgeworth vs. Carson, 43 Mich., 241; 
 Wertheim vs. Altschuler, 12 N. W. Rep., 107. 
 
 If a criminal prosecution is shown to be without reasonable 
 or probable cause, the jury may infer malice. 
 
 "If you believe, from the facts and circumstances as given 
 in evidence, that the defendant had not probable cause for 
 the arrest and imprisonment of the plaintiff, then and in such 
 case you may infer malice from such want of probable cause." 
 Boy\^. Goings, 112 111., 662. 
 
 The jury are instructed, as a matter of law, that the com- 
 mencement of a criminal prosecution, simply for the purpose 
 of collecting a debt or private claim, is an abuse of the process 
 of the court, and would be conclusive evidence of malice on 
 the part of the person commencing such proceeding, and in 
 such case the advice of counsel would be no protection. 
 "Whether in this case the proceedings were commenced against 
 the plaintiff with a lonajide intention of prosecuting a sup- 
 posed criminal offense or merely for the purpose of securing 
 a private claim, are questions to be determined by the jury^ 
 from the evidence. Livingston vs. Burroughs, 33 Mich., 511. 
 
 The jury are instructed, that the prosecution of a person 
 criminally, with any other motive than that of bringing a 
 guilty person to justice, is a malicious prosecution. If made 
 to procure the surl-ender of the prosecutor's note, it is mali- 
 cious in law. 
 
 If you believe, from the evidence, that when the defend- 
 ant made the complaint before the justice, he did not have 
 probable cause to believe that such complaint was true, then 
 you may infer malice, and express malice need not be proved. 
 
 The jury are instructed, that while the law is, that they may 
 infer malice from the want of probable cause for the institu- 
 tion of the criminal prosecution against the plaintiff, if they 
 believe, from the evidence, that such prosecution was com- 
 menced without probable cause, still, the jury are not bound 
 t) infer malice from that fact. The law is, that malice may
 
 MALICIOUS TROSECUTION. 299 
 
 be, but it is not necessarily, inferred from want of probablo 
 cause for the commoncenient of a criminal prosecution. 
 Paiiket vs. Llvermore, 5 la., 277; Smith vs. Howard^ 28 la., 
 51; Cooley on Torts, 185. 
 
 § 6. Burden of Proof on the Plaintiff. — The jury arc in. 
 structed, that to warrant a conviction in this case, the plaintitf 
 must not only prove malice, but he must also show that there 
 was no probable cause for the prosecution in question; and 
 the defendant is not bound to prove probable cause unless the 
 plaintiff has introduced some evidence tending to show the 
 absence of it. And though the jury may believe, from tlie 
 evidence, that the plaintiff has shown malice on the part of 
 the defendant, in causing the criminal prosecution in question 
 to be commenced, still, if the jury further believe that the 
 plaintiff has failed to show, by a preponderance of evidence, 
 the want of probable cause, then the jury should find for the 
 defendant. 1 Hill, on Torts, 416 ; Burton vs. St. Paul, M. & 
 M. By. Co., 22 N. W. Eep. 300; Dwain vs. BescaUo, 5 Pac. 
 Eep. 903. 
 
 The jury are instructed, that to warrant a verdict for the 
 plaintiff in an action for malicious prosecution, there must be 
 malice on the part of the prosecutor, and a want of probable 
 cause for believing that the accused is guilty of the offense 
 charged. If the prosecuting witness acts in good faith, on 
 evidence, whether true or false, which is sufficient to create, 
 in the mind of a reasonably cautious man, a belief of the guilt 
 of the accused, he is protected and justified in commencing the 
 prosecution. 
 
 The jury are instructed, that the information that will 
 justify the making of a criminal complaint against another, 
 for the purpose of having him arrested, must be of such a 
 character, and obtained from such sources, that business men 
 generally of ordinary care, prudence and discretion, would feel 
 authorized to act upon it under similar circumstances. And, 
 in this case, if the jury believe, from the evidence, that the 
 defendant made the alleged affidavit, before the justice of the 
 peace, for the arrest of the plaintiff, and thnt he was arrested 
 in consequence thereof, then it is a question of fact to be 
 determined by the jury, from the evidence, whether the
 
 300 MALICIOUS PKOSECUTION. 
 
 defendant, when lie made the complaint, acted upon feueh 
 information as men of ordinary care, prudence and discretion 
 would have felt warranted in acting upon under similar cir- 
 cumstances. Livingston vs. Burroughs, 33 Mich., 511. 
 
 The jury are instructed, that to entitle the plaintiff to re- 
 cover, the jury must find, from the evidence, three material 
 points: first, that the prosecution complained of was com- 
 menced by the defendant through malice ; second, that it was 
 without probable cause:; and, third, that the prosecution was 
 determined and ended before the commencement of this suit. 
 And if the plaintiff has failed to show, by a preponderance of 
 evidence, either one of these three propositions, the jury 
 should find for the defendant. 
 
 § 7. What is a Want of Probable Canse. — If the Jury believe, 
 from the evidence, that the defendant instituted a criminal 
 proceeding against the plaintiff, as charged in the declaration, 
 and if they further find, from the evidence, that there were 
 no circumstances connected with the transaction, out of which 
 the prosecution grew, and that no information regarding it 
 came to the knowledge of defendant, which would warrant a 
 reasonable and prudent man in believing that the plaintiff was 
 guilty of the charge made against him, then there was no 
 probable cause for the prosecution. J/c Williams vs. Hohen, 
 42 "Md., 56; Harpham vs. Whitney, 77 111., 32. 
 
 § 8. Want of Probable Cause Cannot be Inferred from Proof of 
 Malice. — The court instructs the jury, that in order to sustain 
 the action for malicious prosecution, it must be proved, by a 
 preponderance of the evidence, that the prosecution com- 
 plained of was made with malice, and also without probable 
 cause; and if both these requisites are not so proved, the jury 
 should find for the defendant. Cooley on Torts, 184; Casper- 
 son vs. Sproule, 39 Mo. 39; Center vs. Spring, 2 Clarke (la.), 
 393; Ileyne vs. Blair, 62 K. Y., 19; Shidmore vs. Bricker, 
 77 111., 164. 
 
 Although the jury may believe, from the evidence, that the 
 criminal prosecution complained of was made by the defend- 
 ant through malice, still the jury must not infer want of prob- 
 able cause from such malice. Want of probable cause ran.st
 
 MALICIOUS PKOSECUTION. 301 
 
 be made to appear from the evidence, or el^e the jury must 
 tind for the defendant, no matter how malicious the jury may 
 find the defen laut's motives to have been, in instituting the 
 criminal prosecution. 
 
 § 9. Not Necessary that a Crime Should Have Been Committed. — 
 
 The court instructs the jury, that to justify an arrest on a 
 criminal charge, it is not required that a crime shall in fact 
 liave been committed. If the facts which come to a person's 
 knowledge are such as to create a belief that a crime bad been 
 committed by the person charged, in the mind of an impar- 
 tial, I'easonable man, this would be sufficient to constitute 
 probable cause for making an arrest, although no crime had 
 in fact been committed. Flichhiger vs. Wagner^ 46 Ind., 5S0. 
 
 If the jury believe, from the evidence, that the defendant, 
 when he instituted the prosecution complained of, honestly 
 believed the plaintiff was guilty of the offense charged, and that 
 defendant's belief was founded on a knowledge of circumstances 
 tending to show such guilt, and sufficient to induce, in the 
 mind of an ordinarily reasonable and cautious man, the belief 
 in such guilt, then such belief on the part of the defendant 
 negatives the idea of the want of probable cause. lilrsch vs. 
 Feeney^ 83 111., .548; Brennan vs. Tracy, 2 Mo. App., 540. 
 
 A party making complaint against another, and procuring 
 his anest upon a criminal charge, is not bound to prove his 
 guilt or procure the finding of an indictment against him, at 
 the peril of being personally liable in an action for damages. 
 If he acts upon probable cause, he is excusable, whatever the 
 result of the prosecution. 
 
 In an action for malicious prosecution, the burden of jiroof 
 is on the plaintiff" to show that the defendant acted maliciously, 
 and without any reasonable or probable cause. Calef vs. 
 ThoTTMS, 81 III, 478; FlecMnger vs. Wagner, 46 Md., 580; 
 £?'ennan vs. Tracy, 2 Mo. App., 540. 
 
 § 10. Tlie Prosecution must be Ended. — The jury are in- 
 structed, that in order to maintain an action for malicious pros- 
 ecution, it must apj:)ear, from the evidence, that the alleged 
 malicious prosecution has been legally terminated. Striking 
 the case from the docket, on motion of state's attorney, with
 
 302 MALICIOUS PROSECUTION. 
 
 leave to reinstate the same, is not a legal termination of the 
 prosecution. Blalock vs. Randall^ 76 111., 224; Clarlc vs. 
 Cleveland, 6 Hill., 344; Cardinal vs. Smith, 109 Mass., 159; 
 Leever vs. Hammill^ 57 Ind., 423; Casebeen vs. Bice, 23 JN". 
 W. Eep., 693. 
 
 § 11. Discharge by Justice. — That the fact that tlie plaintiff 
 was discharged bj the justice of the peace before whom he 
 was brought, upon the charge made against him, is not such 
 evidence of a want of probable cause as will alone sustain an 
 action for a malicious prosecution. Thor_pe vs. Balliett, 25 
 111., 339. 
 
 § 12. Advice of Counsel. — If a party about to commence a 
 criminal prosecution communicates to the state's attorney all 
 the material facts affecting the question of the guilt of the 
 party about to be accused, which are known to him, or of 
 which he had notice, and then acts upon his advice, the pre- 
 sumi^tion of malice is rebutted, and an action against him for 
 malicious prosecution will fail. Calef vs. Th'/mas, 81 111., 
 478; Andersen vs. Frlnd, 71 111., 475; McCarthy vs. Kitchen, 
 59 Ind., 500; Johnson vs. Ifiller, 29 K W. Eep., 743; Siniih 
 vs. Austin, 49 Mich., 286. 
 
 The court instructs the jury, as a matter of law, that when 
 a party communicates to counsel in good standing all the facts 
 bearing upon the guilt of the accused, of which he has knowl- 
 edge, or could have ascertained by reasonable diligence, and 
 in good faith acts upon the advice of such counsel in prosecut- 
 ing the party accused, he cannot be held responsible for mali- 
 cious prosecution. Josselyn vs. McAllister, 22 Mich., 300; 
 Ajidersen vs. Frind, 71 111., 475; Ash vs. Marlow, 20 Ohio, 
 119; Walter vs. SSample, 25 Pa. St., 275; Sharpe vs. Johnson, 
 59 Mo., 557; Acton vs. Coffman, 36 K W. Rep., 775. 
 
 The court instructs the jury, that if thej' believe, from the 
 evidence, that the defendant, before he instituted the criminal 
 ])rosecution, fully, fairly and truthfully stated all the facts and 
 circumstances in relation to the alleged crime, to respectable 
 counsel, and that such counsel advised him that lie had reason- 
 able cause to institute the criminal ])roceedings against the 
 plaintiff, and that the defendant, in good faith, acted upon such
 
 MALICIOUS riiOSECUTION. 303 
 
 advice, then the plaintiff cannot maintain this action, whether 
 the defendant in the criminal prosecution was guilty or not; 
 and the jury should fiud for the defendant, lioss vs. Innes, 
 26 111., 259. 
 
 The court instructs the Jui-y, that whether or not the defend- 
 ant did, before instituting the criminal proceedings, make a 
 full, fair and honest disclosure to the attorney of all the ma- 
 terial facts bearing upon the guilt of the plaintiff, of which 
 he had knowledge, and which he could have ascertained by 
 reasonable diligence, and whether, in commencing such pro- 
 ceedings, the defendant was acting in good faith upon the ad- 
 vice of his counsel, are questions of fact to be determined by 
 the jury, from all the evidence and circumstances proved in 
 the case. And if the jury believe, from the evidence, that the 
 defendant did not make a full, fair and honest disclosure of all 
 such facts to his counsel, then such advice can avail him noth- 
 ing in this suit. Roy vs. Goings, 112 111., 663. 
 
 If you believe, from the evidence, that the defendants insti- 
 tuted the criminal prosecution from a fixed determination of 
 their own, rather than from the opinions of legal counsel, or 
 that a full, fair and true statement of all the facts known to 
 them was not submitted to the counsel, then, in either case, 
 the opinion given by the counsel is no defense in this action, 
 if you believe, from the evidence, that the criminal charge was 
 false, and made without probable cause. "Before the defend- 
 ant can shield himself by the advice of counsel, it must appear 
 from the evidence, that he made, in good faith, a full, fair and 
 honest statement of all the material circumstances bearing 
 upon the supposed guilt of the plaintiff which were within 
 the knowledge of the defendant, or which the defendant could, 
 by the exexercise of ordinary care, have obtained, to a respect- 
 able attorney in good standing, and that the defendant in good 
 faith acted upon the advice of said attorney in instituting and 
 carrying on the prosecution against the plaintiff." Hoy vs. 
 Goings, 112 111., 663; Logan vs. Waytag, 57 la., 107; Porter 
 vs. Knight, 19 N. W. Eep., 282. 
 
 The jury are instructed, that if they believe, from the evi- 
 dence, that the plaintiff was charged, arrested and treated, as 
 stated in his declaration, and that the only ground for that 
 charge and arrest was the retention of the % , mentioned
 
 304 MALICIOUS PKOSECUTION. 
 
 b}' the witnesses, and tliat the defendant knew, at the time he 
 advited with his attorney, that the plaintiff, in good faith, 
 claimed the right to pay himself that money on his salary, and 
 that he did not state that fact to his attorney, then the attor- 
 ney's advice is no protection to him in this suit. 
 
 § 13. Presnniption from Good Character. — If the jury believe, 
 from the evidence, that the plaintiff, up to the time of his ar- 
 rest, uniformly bore a good reputation for honesty and integ- 
 rity, and that defendant knew his reputation to be such up to 
 the time of his arrest, then that fact is a proper one to be con- 
 sidered by the jury, in connection with all the other evidence 
 in the case, in determining whether or not defendant had prob- 
 able cause to believe, and did believe, in good faith, that the 
 plaintiff was guilty of the crime charged against him. Wood- 
 worth V. Mills, 61 Wis., 44.
 
 CHAPTER XXIX. 
 
 MALPKACTICE. 
 
 Sec. 1. Warranty of skill, knowledge and care implied. 
 
 2. Patient bound to follow instructions. 
 
 3. Burden of proof. 
 
 § 1. A Warranty of Skill, Knowledge and Care Implied. — The 
 
 court instructs the jury, that if a person holds himself out to 
 the public as a physician and surgeon, he must be held to pos- 
 sess and exercise ordinary skill, knowledge and care in his pro- 
 fession in every case of which he assumes the charge, whether 
 in the particular case he receives fees or not. MoNeoins vs. 
 Lowe, 40 111., 209; 1 Hill, on Torts, 224; MeCandless vs. 3£c- 
 Wha, 22 Penn., 261; Simonds vs. Henry, 39 Me., 155; Gei- 
 selman vs. Scott, 25 Ohio St., 86. 
 
 Where an injury results from a want of ordinary skill, or 
 from a failure to exercise ordinary skill or attention in the 
 treatment of a case, the physician or surgeon is held responsi- 
 ble for such injury. Barnes vs. Means, 82 111., 379. 
 
 The highest degree of care and skill is not required of a 
 physician to relieve him from liability for damages resulting 
 from-his treatment of a patient — only reasonable care and skill 
 are required. Eoltzman vs. Hoy, 118 111., 534. 
 
 While persons, who hold themselves out to the public as 
 physicians and surgeons, are not required to possess the high- 
 est degree of knowledge and skill which the most learned in 
 their profession may have acquired, yet they are bound to pos- 
 sess and exercise, in their practice, at least the average degree 
 of knowledge and skill possessed and exercised by the mem- 
 bers of their profession generally in the locality in which they 
 practice. Gates vs. Fleischer, 67 Wis., 504; Gramm vs. 
 Boener, 56 Ind., 497. See Smother vs. HanTiS, 34 la., 286; 
 Almon vs. Nugent, 34 la., 300. 
 
 Every person who offers his services to the public generally, 
 20 ■ (305)
 
 306 MALPKACTICE. 
 
 in any profession or business, impliedly contracts with those 
 who employ him, that he is a person of the skill and expe- 
 rience which is possessed, ordinai-ily, by those who practice, or 
 profess to understand the same art or business, and which is 
 generally regarded by those most conversant with that profes- 
 sion or employment, as necessary to qualify him to engage in 
 such business successfully. Holtziiian vs. Hoy, 118 111., 534. 
 
 A surgeon who offers his services to the ] ublic as such, im- 
 pliedly contracts with his employer, that he has ordinary 
 knowledge and skill in his profession; and also, that he will 
 use reasonable and ordinary care and diligence, in the exertiou 
 and application of his skill and knowledge, to accomplish the 
 purpose for which he is employed. 
 
 If the jury believe, from the evidence, that the defendant, 
 , held himself out to the public as a pJij'siciau and sur- 
 geon, and that he was employed to treat, as a surgeon, an 
 injury sustained by the plaintitf, as charged in the dec!ai'ation, 
 and that he undertook such em])loyment, and that he did not 
 treat the said injury with ordinary skill and knowledge, and 
 that the plaintiff sustained any injury or damage by reason 
 thereof, then the jury should find for the plaintifl:. Hallarn 
 vs. Means, 82 111., 379. 
 
 If the jury believe, from the evidence, that the plaintiff, 
 having broken his leg, em])loyed the defendant, as his physi- 
 cian and surgeon, to set and attend to the same, and that the 
 defendant, holding himself out as a physician and surgeon, 
 undertook and entered upon such employment, then the plaint- 
 iff was entitled to receive from the defendant the care, atten- 
 tion and skill of an ordinarily skillful, pliysician and sui'geon. 
 
 And if, from the evidence in the case, the jury further 
 believe, that the plaintiff did not receive from tlie defendant 
 such care, attention and skill, and that in consequence thereof, 
 and without fault on his part, the plaintiff sutlered increased 
 pain, and suffered the injury complained of in the declaration, 
 then the defendant is liable in this suit, and the jury should 
 render a verdict for the plaintiff. Kendall vs. Brown^ 86 
 111., 387. 
 
 The care and skill a surgeon should use in the practice of 
 his profession, should be proportionate to the character of the 
 injury he treats, within the limits of all ordinary skill and
 
 MALPKACTICE. 3U7 
 
 knowledge, and if the jury believe, from the evidence, that 
 the injury in question was severe, and that the defendant, 
 
 , did not treat it with the skill and care its severity 
 
 reasonably demanded, within the limits of ordinary surgical 
 skill and knowledge, and that the plaintiff was injured by the 
 want of such skill and care, they will find for the plaintiff. 
 
 If the jury believe, from the evidence, the plaintiff has sus- 
 tained any injury by reason of the unnatural or improper posi- 
 tion of the (ulna,) or either of the bones of the wrist or fore- 
 arm mentioned in the declaration, and that such improper or 
 unnatural position of said bones resulted from want of ordi- 
 nary skill, or from the negligence of the defendant, while 
 treating the injury in question, as ph3^sician or surgeon, then 
 the defendant would be liable in damages for said injury. 
 
 If the jury believe, from the evidence, that during the time 
 that the defendant was treating the injury in question, the prui- 
 ciples and practice of good surgery required that passive motion 
 should have been commenced and practiced in the wrist or fin- 
 gers of said plaintiff, and that the defendant did not advise or 
 practice such passive motion, and that tlie ])laintiff sustained 
 damage thereby, the defendant would be liable for the damage 
 so sustained. 
 
 If the jury believe, from the evidence, that the defendant 
 did not use ordinary skill and diligence as a surgeon, in the 
 treatment of the plaintiff's injuries, as alleged in the declara- 
 tion in this case, and that, as a consequence thereof, the 
 plaintiff has suffered damages, the jury should find for the 
 plaintiff and assess the damages in such an amount as they 
 believe, from the evidence, he has sustained, not exceeding 
 
 If the jury believe, fi-om the evidence, that the defendant, 
 in the treatment of the injury in question, did not exhibit tJie 
 knowledge and skill of an ordinary good surgeon, or did not 
 apply such knowledge and skill with reasonable care and at- 
 tention, and that by reason thereof the plaintiff suffered dam 
 age, it affords no excuse to the defendant that other surgeons 
 were called in and examined the injury, without his knowledge 
 or consent, unless it appears that the interference of such 
 surgeons in some manner tended to produce the injurious con- 
 sequences complained of.
 
 3U8 MALPEACTICE. 
 
 § 2. Patient Bound to Follow Instructions. — The court in- 
 structs the jury, that where a person employs a phj^sician or 
 snr<^Gon to treat a disease or an injury the patient is bound to 
 adopt and follow out all reasonable directions and require- 
 ments of the physician, relating to the treatment or care of the 
 disease or injury, and if he does not do so, and injurious con- 
 sequences, affecting the disease or injury, result from hi; 
 failure so to do, he cannot recover of the physician or surgeon, 
 alleging a want of skillfulness on the part of the physician or 
 surgeon. Gramin vs. Boener, 56 Ind., 497; Geiselniaii vs. 
 Scott, 25 Ohio St., 86. 
 
 The jury are further instructed, that it is the duty of a 
 patient to co-operate with his physician or surgeon, and to 
 conform to all reasonably necessary prescriptions and direc- 
 tions, regarding the care or treatment of the disease or injury; 
 and if he will not, or if, imder the pressure of pain, he cannot, 
 then he cannot hold his surgeon responsible for any injurious 
 consequences arising from his failure to obey such prescrip- 
 tions or instructions, if any such is shown by the evidence. 1 
 Hill, on Torts, 225. 
 
 If the jury find, from the evidence, that the defendant 
 directed the plaintiff to observe absolute rest as a part of the 
 treatment of the injury in question, and tliat that direction 
 •was such as a surgeon or physician of ordinary skill would 
 adopt or sanction, and further, that the plaintiff negligently 
 failed to observe such direction, or purposely disregarded the 
 same, and that such neglect or disobedience directly con- 
 tributed to the injuries of which the jilaintiff complains, then 
 he cannot recover in this action, although the jury may believe, 
 from the evidence, that the defendant's negligence or want of 
 skill also contributed to such injuries. Geiselmaii vs. Scott, 
 25 Ohio St., 86. 
 
 § 3. Burden of Proof. — The jury are instructed, that the 
 plaintiff, in this case, is bound to prove, by a preponderance 
 of evidence, some one or more of the charges of negligence 
 contained in the declaration, and that the-^e charges relate to 
 the setting or reducing the fracture of the plaintiff's leg, and 
 also to the subsequent treatment thereof; and unless the 
 plaintiff lias proved, by a pre[)onderance of evidence, tliat the
 
 MALPRACTICE. 309 
 
 log was not properly set in the first instance, or that the sub- 
 se(|uent treatment of the leg by the defendant was unskillful 
 and inipro[)cr, to such an extent as to show want of ordinary 
 skill, care, or attention to said leg, then it will be the duty of 
 the jury to render a verdict for the defendant. Kendall vs. 
 Brown, 86 111., 387; Iloltzmaii vs. ILij, 8 N. E. Rep., 832. 
 
 Although the jury may believe, from the evidence, that the 
 plaintiff's leg became shortened in consequence of the fract- 
 ure, or during the course of treatment subsequent to the 
 fracture, still the defendant is not liable in damages therefor, 
 unless the shortening was due to the want of reasonable and 
 ordinary care and skill on his part-; and if the jury further 
 believe, from the evidence, that the extension of the limb 
 could not well and safely be effected, nor the means and ap- 
 . |)lianees for that purpose be safely used, before the time for 
 bony I ni )n to commence, and that bony union, under proper 
 treatment, would not, and did not commence before the de- 
 fendant w^as discharged, and the plaintiff placed under the 
 charge of another surgeon, then the defendant would not be 
 liable in damages resulting from the shortening of the limb. 
 Kendall vs. Brown, 74 111. 232. 
 
 In a suit against a surgeon for malpractice in treating an 
 injury, the plaintiff is not entitled to recover anything on 
 account of the v^aiii and suffering caused by the injury, but 
 only for such i.ivhtionai pain, suffering and injury as is pro- 
 duced by the neifligeiiee Ki\ want of skill of the defendant in 
 the treatment. Weng&i Yti. Colder^ 78 111., 275.
 
 CHAPTER XXX. 
 MAKKIED WOMEN. 
 
 Sec. 1. May own, manage and convey her propsrfcy. 
 
 2. May employ her husband as her agent. 
 
 3. When liable for repairs on house. 
 
 4. May ratify the acts of her husband. 
 
 5. Husband may give to wife, when. 
 
 6. "When the proceeds of the farm belong to the husband. 
 
 7. W^iat is not her separate estate as to husband's creditors. 
 
 8. Wife may give her property to her husband. 
 
 9. Husband entitled to the earnings of minor children. 
 10. Work and labor of married women — Illinois. 
 
 Note. — The following instructions, relating to the rights and powers of 
 married women, are mostly adapted to the laws of those states where the 
 common law disabilities of married women have been removed or greatly 
 modified by sftatute. These laws vary greatly in the different states, and 
 this fact must be borne in mind. 
 
 § 1. She may Own, Manage or Convey. — The court instructs 
 tlie jury, that by the laws of this state a married woman may 
 own, in her own right, real or personal property obtained by 
 descent, gift or purchase, and she may manage, sell and con- 
 vey the same to the same extent and in the same manner that 
 her husband can property belonging to him. 
 
 Since the year 18 — the husband does not, by marriage, ac- 
 quire title to the money or property of the wife, but she 
 retains all her rights of property, and may deal with the same 
 as if she was unmari-ied. And money loaned by the wife to 
 the husband since the statute of 18 — , whetlier loaned before 
 or after marriage, is a proper personal charge against him 
 while living, and against his estate after his death. Whitford 
 vs. Daggett, 81: 111., 141; Vail et at. vs. Mayer, 71 Ind., f59. 
 
 The products of the land of a married woman, the rents of 
 her real estate, the increase from her stock, the interest on her 
 money, are all hers, as absolutely as the capital or things from 
 which they arise. 
 
 (310)
 
 MAIIKIED WOMEN. 311 
 
 The tact that a crop is raised on the land of a wife, under 
 the supervision of her husband, he contributing some personal 
 labor in controlling and managing the business, will not malce 
 the crop his, or subject it to the payment of his debts. Bon- 
 gard vs. Core, 82 111., 19: Montgomery vs. Hickman, 62 Ind., 
 598; Hamilton vs. Boothe^ 55 Miss., 60. 
 
 § 2. May Employ Husband as Agent. — Under the laws of this 
 state, a married woman owning either real or personal prop- 
 erty, in her own right, may employ her husband as her agent 
 to transact the business growing out of or relating to such 
 ])roperty, without thereby subjecting the property to the pay- 
 ment of the husband's debts. Olsen vs. Kern, 10 111. App., 
 578. 
 
 Although the jury may believe, from the evidence, that the 
 plaintiff, in the management of her farm, availed herself of 
 the services of her husband as her agent, and that he, from 
 time to time, bestowed a portion of his time and labor in such 
 management, still this alone would not subject the farm of the 
 plaintiff, or the proceeds thereof, to the payment of the hus- 
 band's debts. Wells vs. Smith, 54 Gar., 262. 
 
 If the jury believe, from the evidence, that during the sea- 
 son of 18 — the plaintiff was the owner of a farm, and raised 
 the property in question thereon, and that the husband as- 
 sisted in rai-^ing the same, still, if the jury further believe, 
 from the evidence, that in what the husband did he was sim- 
 ply acting as the agent of his wife, then the property so 
 raised would be the property of the wife and not of the hus- 
 band. 
 
 The fact, if proved, that the husband uses and enjoys the 
 separate property of his wife, and out of it procures the means 
 to support his family, does not render such property liable 
 for the debts of the husband. Blood vs. Barnes, 79 III., 437. 
 
 The fact, if proved, that a married woman allows her hus- 
 band to have a general use and control over her personal prop- 
 erty, such use and control being of a character consistent with 
 their common interests, and the proper enjoyment of it by 
 both, will not make it liable for his debts, or entitle his admin- 
 istrator to claim the same. Primmer vs. Glahaugh, 78 111., 94- 
 
 A husband may act as the agent of his wife in the manage.
 
 312 MAKKIED WOMEN. 
 
 ment and control of licr personal property, either generally or 
 specially, and if the ])roperty is in fact the property of the 
 wife, then such control and management does not alter the title 
 to the property or rendiu- it liable for the debts of the husband. 
 And, in this case, if the jury believe, from the evidence, that 
 the property was in fact the property of Mrs. G., then tlie 
 fact, if proved, that her husband did control and manage it, 
 will not make it liable for his debts. Brownwell vs. Dixon, 37 
 111., 19T; Raiilln vs. ^Ye8t, 25 Mich., 195. 
 
 When a married woman has rajney, or separate property 
 in her own right, her husband may act as her agent for the 
 control of her property or the investment of her funds. He 
 may lease her property and collect the rents, or invest her 
 money, or change the character of her investments, if author- 
 ized by lier, without subjecting her property to the payment 
 of his debts. Woi'tinaii vs. Price, 4:7 111., 22; Abhsy vs. Dego, 
 44 Barb., 374; BucUeij vs. Wells, 33 K Y., 518; Welch vs. 
 Kline, 57 Penn., 428; Cooper vs. Hare, 49 Ind., 394; Faller 
 vs. Aldeii, 23 Wis., 301. 
 
 § 3. Wlien Liable for Repairs on House. — And, in this case, if 
 the jury believe, from the evidence, that the defendant em- 
 ployed the plaintiff to perform the labor, or made a contract 
 with him to furnish the material for the improvement of the 
 house in question, and that at the time she did so she was in 
 the possession of the property, and then claimed and repre- 
 sented to the plaintiff that she was the owner of it, and, fur- 
 ther, that the plaintiff b3lieved such representations, and, 
 relying upon them, afterwards went on and performed the 
 labor and furnished the material for which this suit is brought, 
 then the defendant is estopped from denying that she was the 
 owner of the property, and for all purposes of this suit she 
 must be regarded as the owner of the property. 
 
 § 4. May Ratify the Act of a Husband. — In order that a mar- 
 ried woman shall be bound by the acts of her husband in sell- 
 ing or exchanging her property, it is not necessary that she 
 should expressly authorize him beforehand thus to act — she 
 may ratify the act afterwards. iVnd, in this case, if the jury
 
 MARRIED WOMEN. 31 3 
 
 believe, from the evidence, that the husband of plaintiff 
 exchanged the mule in que.-;tion with the defendant for a 
 mare of the defendant's, either as his own property, or acting 
 as the agent of the coraiplainant, and that at or about the time 
 of the trade, the complainant know that her husband had so 
 traded, and she did not, as soon as it could reasonably be done, 
 repudiate the act of her husband, nor claim the property, then 
 she must be deemed to have ratilied the act of the husband 
 in making the exchangi;, and slie cannot now recover the prop- 
 erty on the ground that she did not authorize the trade or 
 did not know the law. Lichtenberger vs. Graham^ 50 Ind., 
 288. 
 
 § .5. nuRband May Give to Wife, When. — A husband out of 
 debt, or when it does not injure existing creditors, may settle 
 property on his wife, either by having it conveyed directly to 
 her, or to another in trust for her, and subsequent creditoi-s 
 cannot reach it, and the money in question, if the jury believe, 
 from the evidence, that it was realized from the sale of such 
 property, will be hers. Lincoln vs. McLaugldin, 74 111., 11. 
 
 § 6. Wlien Proceeds of her Farm Belong to Husband. — The 
 
 court instructs the jury, that although they may believe, from 
 the evidence, that the farm on which the wheat in dispute was 
 grown, was owned by the i)lainTiiT, still, if they further believe, 
 from the evidence, that the plaintiff's husband, in his own 
 right, by his own labor, and that of his minor son or sons, 
 took care of and raised the crops grown thei-eon, then such 
 crops would be liable to an execution against him. 
 
 The court further instructs the jury, that although they be- 
 lieve, from the evidence, that the farm on which the wheat in 
 controversy was raised, was in fact owned by the plaintiff, 
 still, if they further believe, from the evidence, thut her hus- 
 band was allowed by lier to exercise full and complete author- 
 ity over said farm — to raise, sell and dispose of the products 
 of said farm in his own name, and for his own benefit, and 
 that the grain in question was raised by the labor of the hus- 
 band and men in his employ, assisted by his minor sons, then 
 she would be estopped from denying that her husband had an 
 interest in the crops so raised and grown on said farm, under
 
 314 MAKKIED WOMEN. 
 
 his supervision, and by the exertions of himself, the men in 
 his employ, and his minor son or sons. 
 
 If a married woman places her money or property in the 
 hands of her husbimd for the purpose of enabling him to 
 carry on a general business, nnder such circumstances as to 
 enable him to obtain credit on the faith of his being the owner 
 of such money or property, and he does thereby obtain credit, 
 then the entire capital so embarked in business, with the 
 increase thereof, will be liable for the husband's debts. Pat- 
 ton vs. Gates, 67 111., 164; Wilson vs. Looinis, 55 111., 352. 
 
 When the husband, as the head of the family, occupies and 
 cultivates the land of his wife, in his own name, then he is 
 considered in law as occupying the farm, with her consent, for 
 the common bene tit of the family. And the proceeds of his 
 toil upon such land are as much his ])roperty as though he had 
 occupied the land as a tenant, and had rented from some other 
 person. Stennett vs. Bradley^ 35 N. W. Kep., 467. 
 
 § 7. Wliat Not Separate Estate as to Creditors of Husband. — 
 
 The jury are instructed, that in determining the issues in 
 this case, they may take into consideration, together with all 
 the other evidence in the case, the circumstances attending the 
 management and use of the property in question, before and 
 at the time the same was taken on the {execution), introduced 
 in evidence by the defendant, so far as those circumstances 
 appear in evidence; and if, fi-om all the evidence in the case, 
 the jury believe that there was a collusive arrangement or 
 understanding between the plaintiiff and her husband, that the 
 said business should be carried on, in the name of the 
 plaintiff, by the husband for his own use and benefit, and 
 further, that at the time the said property was taken, the busi- 
 ness was carried on in the name of the plaintiff, under such 
 arrangement, by her husband, for his use and benefit, then 
 such conduct on the part of the plaintiff w^as fraudulent and 
 unlawful, as against the creditors of the husband, and the jury 
 should find that the property belonged to the husband. 
 
 The jury are instructed, that although they may believe, 
 from the evq'dence, that the plaintiff furnished the funds with 
 which the said goods were purchased and said business carried 
 on, at tlie time said property was taken, still, if the jury
 
 MARRIED WOMEN 815 
 
 farther believe, from tlie evidence, that tlie funds so furnished 
 by tlie plaintiff, were placed ii^tlie hands of her husband for 
 the purpose of enabling him ito carry on said business, for his 
 use and benefit, and that he was the sole manager thereof, 
 and that his skill and labor was devoted to carrying on 
 said business, without any agreement or arrangement as to 
 his salary or compensation, then the jury are instructed, 
 that the entire capital used in said trade or business, to- 
 gether with the increase thereof, cannot be considered the 
 separate estate of the plaintiff, but the same became liable for 
 the debts of her husband, and the property was subject to the 
 execution offered in evidence by the defendants. 
 
 Although the jury may believe, from the evidence, that 
 when the property in question was taken by the officer, the 
 business at the store, etc, was being conducted and carried on 
 in the name of the plaintiff, and that her husband claimed to 
 be acting only as the agent of the plaintiff, still, if the jury 
 also believe' from the evidonci, that, with plaintiff's knowl- 
 edge and consent, the use of her name in can-ying on said busi- 
 ness was only for the purpose of protecting the property of 
 her husband from his creditors, or was with the intent, on her 
 part, to secure to him some right in the property, to the prej- 
 udice of his ci-editors, then the jury are instructed, that sucli 
 •conduct, on the part of the plaintiff", was fraudulent as to sucli 
 creditors, and the verdict of the jury should be for the de- 
 fendant. 
 
 The court instructs the jury, as a matter of law, that if the 
 wife advance her own separate property or money, and place 
 the same in the hands of her husband, for the purpose of 
 enabling him to carry on any general trade or business, for his 
 use and benefit, and the husband engages in such business, and, 
 by his labor and skill, increases the property or funds while 
 in his hands, then the entire capital embarked in the enter- 
 prise, together with the increase, will not constitute the sep- 
 arate estate of the wife, but they will be liable for the debts 
 of the husband. .Robinson vs. Breems, 90 111., 351. 
 
 If the jury believe, from th3 evidence, that the property in 
 question really belonged to the defendant in the execution, but 
 was claimed and called the property of his wife, for the pur- 
 [^ose of covering up said goods, and keeping them from the
 
 316 MAEEIED WOMEN. 
 
 creditors of her husband, then the jury should find for the de- 
 fendant. Brownwell vs. Dixo^i, 37 II h, 197. 
 
 If the jury believe, from the evidence, that before and at 
 the time that the property in question was taken by the officer? 
 it was in the possession of the husband of the plaintiff, and 
 imder his exclusive control, then the jury are instructed, that 
 the fact, if proved, that the plaintiff received the property 
 from her father at the time of her marriage, or that it was 
 bought with money received from her father's estate, is not 
 alone sufficient to entitle her to hold the property against the 
 creditors of her husband; the }\wy must further believe, from 
 the evidence, that she so received the property {op money) 
 since the day of, etc. 
 
 § 8. Wife may Give Property to Her Husband — Tlie court 
 instructs the jury, that although tliey may believe, from the 
 evidence, that the notes or the money with M'hich the pro]> 
 erty in question was bought, was given to Mrs. G., and was 
 originally hers, still, if the jury further believe, from the evi- 
 dence, that Mrs. G. afterwards gave the said notes or money 
 to her husband to trade upon, or lay out as he saw fit, and 
 that he, with the said notes or money, bought the property in 
 question in his own name, without any understanding that the 
 property should be liers, then the property became tlie projo- 
 erty of the husband, as far as his creditors are concerned, and 
 was liable to the executions against him. 
 
 § 9. Husband Entitled to Earnings of Minor Children. — The 
 court instructs the jury, that the father is entitled to all the 
 earnings of his minor children until they become of age. And 
 so long as the father lives and resides with his family, he is 
 entitled to the earnings or wages of his minor children. 
 
 § 10. Work and Labor by Married Women — Hlinois. — The 
 
 court instructs the jury, that a married woman has the right 
 to sue for and recover for her personal labor, performed for 
 persons other than her husband, the same as if she were unmar- 
 ried; provided, the work is done under a contract, expressed 
 or implied, made with her and not with her liusband. 
 
 Where a married woman performs work and labor for a
 
 MARRIED WOMEN. 317 
 
 person, not her husband, under a contract, expressed or im- 
 plied, made with her, her husband has no legal right to collect 
 her wages, except by her authority, or with her consent; and 
 a payment to Iier husband in such a case, without her authority 
 or consent, will be no defense to an action brought by lier to 
 recover such wages. 
 
 If the jury believe, from the evidence, that the plaintiff per- 
 formed work and labor for the defendant under a contract, 
 either expressed or implied, made by her and that she has not 
 been paid therefor, then the jury should find for the plaintiff, 
 although they may believe, from the evidence, that the hus- 
 band has been paid for the same; if they further believe, from 
 the evidence, that such payment was made without her con- 
 sent, and the burden of proving such consent is on the de- 
 fendant. 
 
 The jury are further instructed, that they have no right to 
 presume that the husband had a right to collect or settle for 
 his wife's wages for labor performed by her under a contract 
 made by herself, simply from the fact of the relation of hus- 
 band and wife existing between them, or from the fact of their 
 living and cohabiting together, as husband and wife, at the 
 time. 
 
 If the jury believe, from the evidence, that the plaintiff 
 actually performed the services, for which this suit is brought, 
 for the defendant, and that at that time she had no knowledge 
 of any contract between her husband and the defendant in 
 relation to such services, or the mode of payment therefor, 
 then she would not be bound by any such contract, even if 
 the same has been proved. 
 
 "While it is the law, in this state, that a married woman may 
 receive and sue for her own earnings in her own name, yet 
 this rule only applies when the married woman performs such 
 labor under a contract, made by herself, either expressed or 
 implied, with the person for whom the labor is performed. 
 
 If a husband contracts with a person; at a fixed price, for 
 the services of himself and wife, and the wife, under such 
 contract, knowingly labors with her husband to carry out this 
 contract, then she cannot sue for the recovery of services so 
 rendered. 
 
 If the jury believe, from the evidence, that the husband of
 
 318 MAERIED WOMEN. 
 
 the plaintiff made a contract with the defendant for the 
 services of himself and wife, for the time in question, and that 
 the plaintiff, to carry out this contract of her husband, per- 
 formed the services for which this suit is brought, then such 
 a contract would be the contract of the husband, and tho 
 plaintiff cannot recover for such services. 
 
 Although the jury may believe, from the evidence, that the 
 plaintiff" performed the services in question, under a contract 
 made by lierself, still, if the jury further believe, from the 
 evidence, that her husband, before the commencement of this 
 suit, received pay for such services, with the knowledge and 
 consent of the plaintiff", such payment is as effectual for all 
 purposes as if made to herself, and she cannot recover in this 
 suit.
 
 CHAPTER XXXI. 
 
 MEASURE OF DAMAGES. 
 
 Sec. 1. Death from negligent act. 
 
 2. Death from intoxication — Suit by widow. 
 
 3. Exemplary damages. 
 
 4. Damages from intoxication, other than by death. 
 
 5. Personal injury. 
 
 6. Exemplary damages — In tort generally. 
 
 7. Assault. 
 
 8. Exemplary damages in assault. 
 
 9. Aggravation of damages. 
 
 10. Mitigation of damages. 
 
 11. Exemplary damages when not allowed. 
 
 12. Landlord and tenant — Premises not occupied — No rent paid. 
 
 13. Suit on replevin bond. 
 
 14. Libel. 
 
 15. Malpractice. 
 
 16. Breach of marringe contract. 
 
 17. Fraud and deceit. 
 
 18. In trespass and trover. 
 
 19. Labor and services — Part performance. 
 
 20. Contract to deliver — Part performance. 
 
 21. Refusal to deliver personal property. 
 
 22. Property bought for re-sale. 
 
 23. Refusal to accept personal property. 
 
 24. Slander, words actionable, jjer se. 
 
 25. Damages, when presumed. 
 
 26. Pecuniary circumstances of defendant. 
 
 27. Plaintiff's bad reputation may be shown. 
 
 28. Words spoken in the heat of passion. 
 
 29. Drunkenness in mitigation. 
 
 30. Plea of justification must be filed in good faith. 
 
 31. Exemplary damages may be given in slander, when. 
 
 32. Common carriers — Loss of baggage. 
 
 33. Goods lost. 
 
 34. Damages, how determined. 
 
 85. Exemplary damages in trespass. 
 
 36. Exemplary damages defined. 
 
 37. Malicious prosecution. 
 
 38. Damages in trespass or false imprisonment. 
 
 (319)
 
 320 MEASUKE OF DAMAGES. 
 
 § 1. Death from Negligent Act. — If the jury should find, 
 from the evidence, that the defendant is guilty of the wrong- 
 ful act, neglect or default, as charged in the plaintiff's declara- 
 tion, and that the same resulted in the death of A., then the 
 plaintiff is entitled to recover in this action for the benefit of 
 the {widow and next of kin of such deceased) such damages as 
 the jury may deem, from the evidence and proofs, a fair and 
 just compensation therefor, having reference only to the 
 pecuniary injuries resulting from such death, to such widow 
 and next of kin, not exceeding the amount claimed in the 
 declaration. Cooley on Torts, 270; C, B. & Q. Bd. Co. vs. 
 Payne, Adm., 59 111., 534; Raffertyvs,. Buchman. 46 la., 195; 
 Steel, etc., vs. Kurtz, 28 Ohio St., 191. 
 
 If you find, from the evidence, under the instruction of the 
 court, that the defendant is guilty of the wrongfnl act, neglect 
 or default, charged in the declaration in this suit, and that the 
 same resulted in the death of the deceased, and that the 
 plaintiff' is entitled to a verdict, then the plaintiff is entitled 
 to recover, for the benefit of the widow and next of kin, such 
 an amount as damages as you believe, from the evidence, a 
 just and fair compensation to such widow and next of kin, 
 having reference only to their pecuniary loss, resulting from 
 such death. C, B~ & Q. Ed. Co. vs. Payne, 59 111., 534; 
 C, M. <& St. P. B. B. vs. 115 111., 659; Penn Co. vs. Mar- 
 shall, 119 111., 399. 
 
 The jury are instructed, that in estimating the pecuniary 
 injury which the widow and children of the deceased have 
 sustained by his death, if the jury believe, from the evidence, 
 that they have sustained any injury for which the defendant 
 is liable, as explained in these instructions, then the jury have 
 a right to take into consideration the support of the said 
 widow and minor children, and the instruction and physical, 
 moral and intellectual training, as well as the ages of the said 
 minor children, so far as these matters have been proved, in 
 determining the amount of damages in this case. 1. C. Bd. 
 Co. vs. Welde)i, 52 111., 290 ; Tilley vs. II. B. Bd. Co., 29 
 K Y., 252 ; Costello vs. Landwehr, 28 Wis., 522. 
 
 The pecuniary circumstances of the widow and children, 
 whether they are rich or poor, cannot increase or diminish the 
 amount of damages which the plaintiff is entitled to recover in
 
 MEASURE OF DAMAGES. 321 
 
 this suit; and in case tlie jury find the issues for the plaintiff, 
 in assessing the damages which tlie plaintiff is entitled to 
 recover, the jury should disregard all testimony and state- 
 ments of the counsel, as to the ])ecuniary circumstances of the 
 widow and children. G. *& N. W. Rd. Co. vs. Bayfield^ 37 
 Mich., 205. 
 
 If you believe, from the evidence, that the widow of the 
 deceased, at the time of his death, and since, by reason of ill- 
 health, has been unable to perform labor to support herself 
 and family, this fact cannot increase or diminish the amount 
 which she is entitled to recover in this suit; and if you should 
 Und the issues for the plaintiff, then you are instructed, in 
 the assessment of damages, to disregard all the testimony in 
 the case as to such ill-health. 1. C. Rd. Co. vs. Baches^ 55 
 111., 379. 
 
 In this case, if you find for the plaintiff, you can only allow 
 such damages as will make good the pecuniary loss sustained 
 by the person for whose use this suit is brought. The mental 
 sufferings, or grief of survivors, or loss of domestic or social 
 happiness, or the degree of culpability of the defendant, are 
 not proper elements in the calculation of damages. You can 
 not award exemplary or vindictive damages; you must ascer- 
 tain, from the evidence, the pecuniary loss sustained in dollars 
 and cents, as nearly as 3'ou can approximate thereto, and 
 make that good. Kansas Pacific Ry. Co. vs. Cutter, 19 
 Kan., 83; Blake yb. Midland, etc., Rd. (7o., 18 Q. B. 93; 
 Oaldand & Co. vs. Fielding, 48 Penn., 320; Donaldson vs. 
 Miss., etc., Co., 18 la., 280. 
 
 The jury must found their estimate of tlie amount of such 
 loss upon such facts in proof as tend to show the extent of 
 the pecuniary loss sustained, taking into consideration the age 
 of the deceased, and all such other evidence as may afford 
 them the means of making the estimate. City of Chicago vs. 
 Major, 18 111., 349. 
 
 Note.— AVherc the statute limits the recovery the instructions may con- 
 form to the statute. 
 
 If, under the evidence and the instruction of the court, the 
 
 jury find the defendant guilty, then in assessing the damages 
 
 wdiich the plaintiff is entitled to recover, the jury should assess 
 
 the same with reference to the pecuniary loss sustained by the 
 
 21
 
 322 MEASUKE OF DAMAGES. 
 
 wife and cliildren of t]ie deceased, having regard to tlio prob- 
 able earnings of tlie deceased, taking into consideration tlie 
 age, business capacity, experience and habits, health, energy 
 and perseverance during what would probably liave been liis 
 lifetime if he had not been killed, so far as these several mat- 
 ters have been shown by the testimony, and also having regard 
 to the value of his services in the superintendence, attention 
 to and care of his family, and the education of his children, of 
 which they have been deprived by his death, not exceeding, 
 
 however, $ . Baltimore, etc., Rd. Co. vs. Wightman, 29 
 
 Gratt, 431; Mathews vs. Warner, 29 Gratt., 5T0. 
 
 If, under the evidence and the instructions of the court, you 
 find the defendant guilty, and that the plaintiff has sustained 
 any pecuniary loss from the death of her husband, then, in 
 assessing the amount of such damages, the jury f-hould 
 estimate the same with reference to the fact that it is the 
 legal duty of the husband to provide the wife present support 
 and maintenance in the future, and she is entitled to such a 
 sum as will make her whole in a pecuniary point of view, 
 having reference to the pecuniary advantage which the jury 
 believe, from the evidence, she might reasonably have expected 
 from the continuance of the life of her husband if he had not 
 been killed by the accident in question, not exceeding, how- 
 ever, the sura of % . Rafferty vs. Buck'inan, 46 la., 195; 
 
 Jsashoille, etc., Rd. Go. vs. Stevens, 9 Heisk., 12. 
 
 § 2. Death from Intoxication — Suit by AVidow. — If the jury 
 find, from the evidence, under the instructions of the court, 
 that the defendants, or either of them, are guilty, as cliarged 
 in the declaration, and that the plaintiff has suffered actual 
 damages, then it will be the duty of the jury to assess the 
 amount of such actual damages; and if the jury further be- 
 lieve, from the evidence, that there were any willful, wanton 
 and aggravating circumstances attending the sale of said in- 
 toxicating liquors, then the jury may, in addition to such actual 
 damages, find such further exemplary damages as they shall 
 
 deem proper, not to exceed in amount the sum of % , 
 
 demanded in the declaration. 
 
 The court instructs the jury, that in a suit by a wife for in- 
 jury to her means of support, caused by selling liquor to her
 
 MEASURE OF DAMAGES. 323 
 
 Imsband, she cannot recover exemplary damages, unless the 
 jury liud, from the evidence, that she has sustained actual 
 damages. Graham vs. Fulford^ 93 111., 59G; Gihnore vs. 
 Mathews^ 67 Me., 517. 
 
 That in estimating the actual damages which the plaintiff 
 has sustained, the jury should not take into consideration any 
 mortification to her feelings, or mental suH'ering on her part; 
 in estimating the actual dauiage, the jury can only consider 
 the pecuniary loss, if any, which she has sustained, as shown 
 by the evidence, but no allowance can be made for the grief 
 or bereavement of surviving relatives. Brantigan vs. WMte., 
 73 111., 561; Kans. P. Ed. Co. vs. Cutler, 19 Ivans., 83; /i«;«z:- 
 ingden Rd. Co. vs. Becker, Stt Penn. St., 419; March vs. 
 Walker, 48 Texas, 372. 
 
 In case the jury find the defendants guilty, then, in estimat- 
 ing the amount of actual damages which the plaintiff has sus- 
 tained, if any, the jury should not take into account the anguish 
 or pain of mind, or feelings, suffered by the plaintiff by reason 
 of her husband's death ; nor should they allow anything for 
 the support and maintenance of the children, or for any loss 
 which they may have sustained by the death of their father. 
 
 § 3, Exemplary Damages. — Although the jury may, in this 
 class of cases, give exem])lary damages if they find the defend- 
 ant guilty, and further find, from the evidence, that the plaint- 
 iff lias sustained any actual damages, yet the jury cannot give 
 any damages by way of punishment to the defendant, unless 
 they believe, from the evidence, that the plaintiff has sustained 
 some actual pecuniary damages; nor should they give exem- 
 plary damages, unless they find, from the evidence, some cir- 
 cumstances of aggravation in connection with the conduct of 
 the defendants \or some of thevi) calling for such damages. 
 Bates vs. JDavis, 76 111., 222; 3Ieidel vs. Aiithis, 71 111., 241. 
 
 If, under the evidence and the instruction of the court, the 
 jury find the defendant guilty, and they further believe, from 
 the evidence, that the plaintiff B. has suffered any pecuniary 
 loss in her means of support in consequence of, etc., then if 
 you further believe, from the evidence, that she has been ex- 
 cluded from society on account of her husband's habits of 
 intoxication, and that such intoxication has been in part pro-
 
 324 MEASURE OF DAMAGES. 
 
 duced by, etc., or tliat she has suffered mental aiignish and 
 shame on account of his drunkenness, and that this has been 
 caused in whole or part by, etc., then these facts may be taken 
 into account, in detei-mining whether or not, you should give 
 exemplary damages. Friend vs. Dunks^ 37 Mich., 25; See 
 Broionford vs. Swineford, 44 Wis., 282; Boyer vs. Barr, 8 
 ITeb., 68. 
 
 Note. — In Michigan it has been held that the foundation of the exem- 
 plary damages rests upon the wrong, dene willfully or wantonly, to the 
 complaining party herself. Gimsley vs. Perlrins, 30 Mich., 492. Under 
 the Iowa Statute it has been held that the allowance of exemplary damages 
 rests entirely in the discretion of the jury, and they are not limited to cases 
 ol tort. Goodenough, vs. McCren\ 44 la., 670. In Indiana it has been held 
 that exemplary dam ges cannot be given in any case where the sale is made 
 under circumstances rendering it a penal offense. Koerner vs. Oberly, 56 
 Ind., 284. 
 
 § 4. Damages from Intoxication Other than by Death. — If you 
 believe, from the evidence, that the husband of the plaintitf 
 before his death was in such circumstances that the plaintitt", 
 as his wife, required the proceeds, or a part of the proceeds^ 
 of his daily labor for her support, then she was entitled 
 to this support out of his daily labor; and if you further 
 believe, from the evidence, that while she was entitled to such 
 support the defendant sold him intoxicating liquors from 
 time to time which caused his intoxication (or contributed 
 to such intoxication) and that the plaintiff was thereby 
 deprived of her means of support in whole or in part, then 
 the defendant would be liable to respond in damages to the 
 amount of the support he so deprived her of. Schneider vs. 
 Hosier, 11 Ohio St., 98. 
 
 Every man who has a wife owes her maintenance and sup- 
 port, and if his only means of affording such support is out of 
 his daily labor, then, if a person sell bim intoxicating drinks 
 so as to produce intoxication and thereby renders him unfit 
 for labor and prevents him from pursuing liis only means for 
 the support of his wife, such person is liable to the wife for 
 the loss thus sustained by her. Ibid. 
 
 § 5. Personal Iiy'ury. — The jury are further instructed, that 
 if, under the evidence and the instructions of the court, they 
 find the defendant guilty, then, in estimating the plaintiff's
 
 MEASUKE OF DAMAGES. 325 
 
 damages, if any are proved, they have a right to take into 
 consideration the personal injury inflicted upon the plaintiff — 
 the pain and suffering undergone by him in consequence of his 
 injuries, if any are ])roved, and also any pernianent injury 
 sustained by him, if the jury believe, from the evidence, that 
 the plaintiff has sustained such permanent injury from the 
 wrongful acts complained of. Collins et ux. vs. The City, 
 etc., 33 la., 321; llolhrooh et at. vs. The U. & S. Rd. Co., 2 
 Kern., 236; titeamer N. W. vs. King, 16 IIow., 472; Ilusa 
 et ux. vs. iSteamJjoat War Eagle, 14 la., 3G3. 
 
 If, under the evidence and instructions of the court, the 
 jury find the defendant guilty, then, in assessing the plaintiff's 
 damages, the'.jury may talce into consideration not only the 
 loss, expenses and injmediate damage arising from the injuries 
 received at the time of the accident, but also the permanent 
 loss and damage, if any is proved, arising from any disability 
 resulting to the plaintiff from the injury in question, which 
 renders him less cajiable of attending to his business than he 
 would have been if the injury had not been received. Indian- 
 apolis vs. Gaston, 58 Ind., 224; Morris vs. Chicago, etc., R. R. 
 Co., 45 la., 29. 
 
 The jury are instructed, that if they find the defendant guilty, 
 under the testimony and instructions of the court, then in 
 assessing the plaintiff's damages, the jury may take into consid- 
 eration not only the bodily disability occasioned by the accident, 
 if any is proved, but also any impairment of plaintiff's mental 
 faculties and general health, if any such is proved, and which 
 the jury believe, from the evidence, will affect or impair his 
 future ability to attend to his ordinary business the same as if 
 the injury complained of had not occurred. 111. Cent. Rd. 
 Co. vs. Reed, 37 111., 484; Morris vs. C, B. d: Q. Ry. Co., 
 45 la., 29. 
 
 If the jury believe, from the evidence, that the plaintiff" 
 has been injured in health of body or strength of limb, or in 
 his ability to labor and attend to his affairs, and generally pur- 
 sue the course of life as he might otherwise have done, as well 
 since as before the accident, and if the jury further believe, 
 from the evidence, that such injuries were inflicted upon him 
 through the negligence or carelessness of defendant's servants 
 or employes, as charged in the declaration, and that the plaintiff
 
 326 MEASURE OF DAMAGES. 
 
 was at the time exercising all reasonable care and caution to 
 avoid such injuries, then the jury may assess such damages as 
 ■will recomj'.ense to the plaintiff all the loss he may have sus- 
 tained, as a necessary result of such injuries, as shown by the 
 evidence. Itidianapolis vs. Gaston, 58 Ind., 22-i. 
 
 If, under the evidence and instructions of the court, the jury 
 find the defendant guilty, then, in estimating the plaintiff's 
 damages, it will be projjer fur the jury to consider the effect 
 of tlie injury in future upon the plaintiff's health, if they be- 
 lieve, from the evidence, that his future health will be affected 
 by the injury in question ; and also the use of his hand, and 
 liis ability to attend to his affairs generally, in pursuing his 
 ordinary trade or calling, if the evidence shows that these will 
 be affected in the future; and also the bodily pain and suffer- 
 ing, the necessary expenses of nursing and medical care and 
 attendance, and loss of time, so far as these are shown by the 
 evidence ; and all damage, present or future, which, from the 
 evidence, can be treated as the necessary i-esult of the injury 
 complained of. Jll. Cent. Rd. Go. vs. Reed, 37 111., iSi; Wha- 
 len vs. St. Louis, etc., Rd. Go., 60 Mo., 323. 
 
 In determining the amount of damages the i~)laintiff is enti- 
 tled to recover in this case, if any, the jury have a right to, 
 and they should, take into consideration all the facts and cir- 
 cumstances in evidence before them; the nature and extent of 
 the plaintiff''s physical injuries, if any, testified about by the 
 witnesses in this case; her suffering in body and mind, if any, 
 resulting from such injuries; and also such prospective suffer- 
 ing and loss of health, if any, as the jury may believe, from 
 all the evidence before them in this case, she has sustained or 
 will sustain by reason of such injuries. H. & St. J. R. R. 
 Go. vs. Martin, 111 111., 227; G., B. dc Q. R. R. vs. Warner, 
 108 111., 545. 
 
 If the jury believe, from the evidence, under the instruction 
 of the court, that the plaintiff is entitled to recover, then, in 
 fixing the damaaes which he ought to recover, the jury should 
 take into consideration all the circumstances surrounding the 
 case, so far as these are shown by the evidence, such as the 
 circumstances attending tlie injury; the loss of time of the 
 plaintiff, if any, occasioned by the injury; the pain he has suf- 
 fered, if any; the money he has expended, if any, to be cured
 
 MEASURE OF DAMAGES. 327 
 
 of sncli injury; tlie business he was engaged in, if any, at tlie 
 time he was injured, and the extent and duration of the injury, 
 and give the plaintiff such damages as the jury believe, from 
 the evidence, he has sustained. Sedg. on Meas. of Damages, 
 618; C, R. I. c& P. Ed. Co. vs. Otio, 52 111., 410; Little vs. 
 Tingle, 20 Ind., 168. 
 
 § 6. Exemplary Dama.i^es — Tn Tort Generally. — The jury are 
 instructed, that in actions of this kind, if the jury iind the 
 defendant guilty, under the evidence and instructions of the 
 court, and if they further find, from the evidence, that the 
 injury com[)lained of was inflicted willfully or maliciously, and 
 that the plaintiff has sustained any actual damage thereby, 
 then the jury, in assessing damages, are not lim'tjd to mere 
 compensation for the actual damige sustainod, but they may 
 give hitn such further sum, by way of exem jlary or vindictive 
 damages, as a protection to the plaintiff, and as a salutary ex- 
 ample to others, to deter them from offending in like manner. 
 Pike vs. Dllliii'j, 48 Me., 539; Mg Williaras vs. Bragg, 3 
 Wis., 424; DllMe vs. Morris, 26 Conn., 416; Ousley vs. Har- 
 din, 23 111., 403. 
 
 § 7. Assault. — If the jury believe, from the evidence, 
 under the instruction of the court, that the plaintiff" is entitled 
 to recover in this case, then, in assessing his damages, the 
 jury are at liberty to take into account the extent of plaintiff's 
 injuries, so far as they liave bjen shown by the evidence^ 
 the pain and suffering endure 1 by him, if any, in consequence 
 of such injuries, his loss of tim3, and the costs of medical 
 attendance, if such loss of time and costs have been proved, and 
 award such damiges as the jury miy think proper and right, 
 in view of all the facts and circumstances proved on the 
 trial. 
 
 § 8. Exemplary Damages in Assault. — The jury are further 
 instructed, that if, under the evidence and the instruction of 
 the court, they find the defeniants, or any of them, guilty of 
 assault and battery, and that such assault and battery was un- 
 provoked by the plaintiff, and was maliciously, willfully and 
 wantonly committed on the plaintiff, and that the plaintiff was
 
 328 MEASURE OF DAMAGES. 
 
 seriously injured and damaged thereby, then the jury in fixing 
 the amount of the plaiutiii's damages are not eondned to the 
 actual damage proved, but they may give, in addition thereto, 
 such exem )lary damigas or smart monoy, as, in their judg- 
 ment, will be just and proper, as a punishment to the defend- 
 ant, in view of all tlie facts and circamstauoss proved on the 
 trial. 
 
 If the defendant, without provocation, a-saulted and bo:u 
 the plaintiff, as charged in the declaration, and that such 
 assault was a malicious, wanton and aggravated one; and if 
 the jury further believe, from tlie evidence, that justice and 
 the public good require it, then the law is, that the jurj' are 
 not confined in their verdict to the actual damages jjroven, 
 but they may give exemplary damages, not only to compensate 
 the plaintiff, but to punish the defendant, and to deter others 
 from the commission of like offenses. Bradshaw vs. Bach- 
 anan^ 50 Tex., 492; Titus vs. (7c'r7iT;i,s, 21 Kans., 722; Brown 
 vs. Swineford, 44 Wis., 282. 
 
 While the jury are not authorized by law to give exemplary 
 or punitive damages in this case in the event a verdict is found 
 for the plaintiff, yet, if the jury find for the plaintiff, full 
 compensatory damages should be awarded; and, in arriving at 
 compensatory damages, the jury are not necessarily restricted 
 to the naked pecuniary loss; for, besides damages for pecun- 
 iary loss or injury, the jury may allow such damages as are 
 the direct consequence of the act complained of, for injury to 
 the plaintiff's good repute, her social position, for pliysical 
 suffering, bodily pain, anguisli of mind, sense of sliame, humil- 
 iation and loss of honor. Wolf v&. Trbikle^ 103 Ind., 355; 
 3 N. E. Kep., 110. 
 
 § 9. Aj?gravrttion of Damages. — That, in an action of assault 
 and battery, the insult and indignity inflicted upon a person, 
 by giving him a blow with anger, rudeness or insolence, con- 
 stitute an element of damages. And in this case, if the jury 
 believe, from the evidence, that the defendant committed an 
 assault upon the plaintiff, as charged in the declaration, then 
 the jury, in assessing damages, maj- consider, as an aggrava- 
 tion of the wrong, the mental suffering and mortification of 
 feeling of the plaintiff, arising from the insult and indignity 
 of the defendant's blow. Elliott vs. Van Buren, 33 ]\[ich., 40.
 
 MEASUllE OF DAMAGES. 329 
 
 § 10. Mitis;:ition of Dama.*?es. — The jury are instructed, that 
 while angry and threatening words, and abusive language, are 
 no justification for an assault and battery, still they may be 
 considered by the jury in mitigation of damages, if it ai)i)ears 
 from the evidence that they were used, and were of such a 
 character as wunld naturally tend to excite the angry i)assions 
 of men, and were spoken so recently before the assault com- 
 plained of as that the hot blood and passion which they were 
 calculated to excite had not had time to cool. Thrall vs. 
 Knapi)^ 17 la., AA'i; I'ullerlon vs. Warrick, 3 Biackf., 219. 
 
 § 11. Exemplary Damages not Allows 1, When. — Though the 
 jury should believe, from the evidence, that the defendants, 
 or some of them, committed the trespasses complained of, still, 
 if the jury further believe, from the evidence, that such de- 
 fendant or defendants believed tliat in so doing they weie 
 only asserting wdiat they deemed to be a legal right, and did 
 not act oppressively, wantonly or maliciously, then the jury 
 should only assess such sum as damages as they believe, from 
 the evidence, the plaintiff has actually sustained. 
 
 While intoxication, of itself, is no excuse for an unlawful 
 act committed while under its influence, still it may be consid- 
 ered by the jury in its bearing upon the question of damages. 
 And, in this case, if the jury believe, from the evidence, that 
 an assault was committed by defendant, as chaiged, still, if 
 they further believe, from the evidence, that the defendant 
 was so intoxicated at the time that he did not know and realize 
 what he was doing, and that when not under the influence of 
 intoxication the defendant is a quiet and peaceable citizen, 
 then these facts may be considered by the jury, with all the 
 other evidence in the case, in determining whether he ought 
 to be made to pay smart money, over and above the actual 
 damages proved. 
 
 § 12. Landlord and Tenant — Premises not Ocenpied — Xo Rent 
 Paid. — The court instructs the jury, tliat if they believe, from 
 the evidence, under the instructions of the court, that the 
 plaintiff" has a right to recover; and if the jury further believe, 
 from the evidence, that the plaintiff' has paid no rent for the 
 preniises in controversy, then the measure of damages will be
 
 330 MEASURE OF DAMAGES. 
 
 the difference between the rent ao:reed to be paid for the use 
 of the land and the real value of the use of the laud, as shown 
 by the evidence. 
 
 Tlie court further instructs the jury, that the rent agreed to 
 be paid for the use of the land, as fixed in the lease, is pre- 
 sumed to be the true value of the use of said premises, unless 
 the evidence shows it to be otherwise ; and the agreed price 
 must be tak n by the jury as the true rental value of the 
 premises, for the purposes of this suit, unless the jury believe, 
 from the evidence, that the true rental value is more than the 
 price agreed, to be paid therefor by the plaintiff. 
 
 The measure of damages, in a case of this kind, is the dif- 
 ference beUveen the price agreed to be paid for the use of the 
 premises, not occupied, and the actual rental vahie of the same 
 premises, if they had been occupied, as stipulated in the lease; 
 and unless the jury believe, from the evidence, that the actual 
 value of the premises was more than the rent agreed to be 
 paid therefor, then the plaintiff, in any event, is only entitled 
 to recover nominal damage's, and such special damage as the 
 jury believe, from the evident j, the plaintiU has sustained by 
 reason of, etc. 
 
 § 13. Suit on Replevin Bond. — The jury are instructed, that 
 although this action is in form an action of debt, for the sum 
 
 of § , the penalty in the bond, the action is, in fact, an 
 
 action to recover for the damages alleged to have been sus- 
 tained by the plaintiff, by reason of the property mentioned in 
 said bond not having been returned to the defendant in the 
 replevin suit, according to tlie condition of the bond. 
 
 And if the jury find the issues for the plaintiff, they should, 
 by their verdict, find both the debt and the amount of the dam- 
 ages; the debt will be $ , the penalty mentioned in the bond, 
 
 while the damages will be such an amount as the evidence shows 
 the parties, for whose use this suit is brought, have sustained 
 by reason of the non-return of said property, according to the 
 condition of said bond. 
 
 The jury are instructed, that if they find, from the evidence, 
 under the instructions of the court, that the plaintiff is entitled 
 to a verdict, and that the parties for whose use the suit is 
 brought have sustained damage, as alleged, then it will be the
 
 MEASURE OF DAMAGES. 331 
 
 duty of the jury to assess the amount of such damao^es; and if 
 the jury furtlier believe, from tlie evidence, that the said T. 
 M. B. was sheriff of this county at the time the said ]:)roperty 
 was taken, and that the said sheriff was then lioldinp: tlie said 
 property, under, and by virtue of, a writ of attacliment in favor 
 of the other defendants in the replevin suit, for an indebted- 
 ness claimed to be due to them by one J. F., and that a judf^- 
 ment was afterwards rendered in said attachment suit for the 
 sum of {four thousancT) dollars, in favor of the ])laintiffs in 
 that suit, then the measure of damages in this case is the said 
 sum of {four thousand) dollars, and interest thereon, at the 
 rate of six per cent, per annum, since the date of eaid judgment, 
 and the further sum of {tioenty) dollars, defendant's costs in the 
 f aid replevin suit; provided, however, that if the jury believe, 
 from the evidence, that the value of the proi)erty taken by the 
 said J. E., in the replevin suit, was worth less tlian the amount 
 of said judgment, interest and costs, then the measure of dam- 
 ages, in this suit, will be the vahie of such property, as shown 
 by the evidence, and no more. Sedg. on the Meas. of Dam., 
 58.5; Jennings vs. Johnson, 17 Ohio, 15-1; JSfolle vs. -Epperhj, 
 6 Ind., 468; Hayden vs. Anderson, 17 la., 158. 
 
 The court instructs the jury, that if you fmd the issues for 
 the plaintiff, and believe, fi'om the evidence, that the property 
 in question was the property of E. L. "W., the defendant in 
 the execution, at the time it was taken by the sheriff, then in 
 estimating the amount of damages in this suit, you should as- 
 certain the amount remaining unpaid upon the judgment in 
 the case of J. G. vs. the said E. L. W"., for princiiial, interest 
 and costs, as shown by the evidence, calculating interest at the 
 rate of six per cent, per annum, from the date of said judg- 
 ment; and then, if you believe, from the evidence, that the 
 amount thus found to be due upon the judgment is less than 
 the value of the property in question, you will find as damages, 
 in this case, the sum remaining due upon said judgment, as 
 shown by the evidence. 
 
 On the other hand, if you find the amount remaining unpaid 
 upon said judgment to be equal to or greater than the value 
 of the property in question, then you will find as damages, in 
 this suit, the value of said property as shown by the evidence, 
 at the time it was taken from tiie sheriff', with interest thereon 
 at the rate of six per cent, per annum.
 
 332 MEASUEE OF DAMAGES. 
 
 § 14. Libel. — If the jury believe, from the evidence, that 
 the libel was published bj the defendant, as chai'ged in the 
 declaration, then the plaintiff is entitled to recover. The 
 amount of the recovery is to be determined by the jury, from 
 a consideration of all the evidence and circumstances proved 
 in the case; and in determining such amount, the jury will 
 consider the character of the charge, the general reputation 
 of the plaintiff at the time of the publication complained of, 
 whether the defendants had an opportunity to retract the 
 charge, whether it was maliciously made and persisted in, or 
 whether made as public journalists and for laudable purposes 
 and without malice, and all the facts proved in the case, hav- 
 ing a reference to this subject. Sheahan et al. vs. Collins, 20 
 III, 325. 
 
 If the jury find the issues for the plaintiff, and believe, from 
 the evidence, that the publication was made maliciously or 
 wantonly, and under circumstances evincing a disregard of the 
 rights of others, then, in making up their verdict, thej' u^ay 
 take into consideration the circumstances of the defendant as 
 to wealth and possession of property, so far as these a]:) pear, 
 from the evidence, and they may give a verdict for such sum 
 as, from the evidence, they think the plaintiff ought to receive, 
 and the defendant ought to pay, under all the circumstances 
 of the case. Hill, on Rem. for Torts, 456; Hunt vs. Bennett, 
 19 K. T., 173; Knight vs. Foster, 39 K H., 576; Humphries 
 vs. Parker, 52 Me., 502. 
 
 Although you may believe, from the evidence, that the 
 alleged article is libelous and was published of and concerning 
 the plaintiff, and that the defendant was guilty of its publica- 
 tion, still, if you further believe, from the evidence, that the 
 plaintiff sustained no actual or substantial injury to his feel- 
 ings, occupation or business thereby, and that the defendant 
 vt^as not actuated by malice, in fact, against the plaintiff", in 
 the publication, then the plaintiff can only recover nominal 
 damages. 
 
 The amount of damages in a case of this character, should you 
 find that any ought to be allowed, depends upon the question 
 of malice, express or implied, and you are to bear in mind 
 that malice in law, which is presumed from the ]Miblication of 
 a libelous article, means an absence of sufiicient legal excuse
 
 MEASURE OF DAMAGES. 066 
 
 for such publication, and in such cases, if there was no (nalice, 
 in fact, you can only assess compensatory damages — that is, 
 such damages only as will comjiensate the ]>laintifl for the 
 injury which you may believe, from the evidence, he has sus- 
 tained. 
 
 The jury, if they find the defendant guilty, must exercise a 
 sound discretion as to the amount of damages to be assessed 
 for plaintiff, and in estimating them, the jury are entitled to 
 consider the motives of the defendant, so far as they appear 
 from tlie evidence, that is as to whether they were malevolent 
 and show a settled, deliberate purpose to humiliate, injure or 
 disgrace the i)laintiff, and, if the jury so find, they may assess 
 the daiiij^ges at any amount, such as they may think will prop- 
 erly com; cnsate the plaintiff and properly punish the defend- 
 ant in view of all the circumstances proved on the trial. 
 
 § 15. Malpractice. — If the jury find, under the evidence 
 and the instructions of the court, that the plaintiff is entitled 
 to recover, then, in fixing the amount of damages, they should 
 take into account the present and future loss of the plaintiff's 
 hand, if any such loss has been proved, as well as compen- 
 sation for the pain and suffering endured by the plaintiff in 
 consequence of the want of skill, care and diligence of the 
 
 defendant , as shown by the evidence, and as charged 
 
 in the declaration, if the proof shows such loss and suffering 
 was enuiircd in consequence of the fault of the defendant. 
 
 §10. Breach of Marriage Contract. — The jury are instructed, 
 that in assessing damages for the breach of a marriage 
 contract, the general rule is, that the jury may take into con- 
 sideration all the injury, which the evidence shows the 
 plaintiff has sustained, and no more; and in this case, if the 
 jury find the issues for the plaintiff, the jury may take into 
 consideration the chai'acter and habits of the plaintiff, so far 
 as they are proved by the evidence ; and if the jury believe, 
 from the evidence, that at the time of the alleged breach of 
 contract, the plaintiff was addicted to lewdness, drunkenness, 
 or to the use of profane language, then these circumstances 
 should be considered by the jury in estimating the injuries 
 sustained by her. Sedg. on Mcas. of Dam., 428; Burnett vs. 
 Slmpkins, 24 111., 264.
 
 334 MEASURE OF DAMAGES. 
 
 If the jury Lclieve, from the evidence, that the defendant 
 entered into a marriage contract M-ith the plaintiff, and also 
 that he did seduce her, then they have a right to determine^ 
 from all the facts and circumstances, whether snch seduction 
 was consequent upon the promse of marriage, and if they so 
 lind, then the seduction may be taken by the jury in aggrava- 
 tion of the damages in this case, provided they find for the 
 plaintiff under the first {or other appropriate) count of the 
 declaration. 
 
 In this suit, if the jury believe, from the evidence, that the 
 defendant entered into a marriage contract with the plaintiff, 
 and afterwards refused to carry out the same, as charged in 
 the declaration, and farther, that the defendant, under such 
 promise of marriage, seduced the plaintiff and begot her with 
 child, then that circumstance may be taken into account by the 
 jury in estim^.ting the plaintiff's damages. TuUbs vs. Van 
 Kleel, 12 111., 446; Sheahan vs. Barrij, 27 Mich., 217; Will- 
 iaiiis vs. IlolUngsworth^ 6 Baxt. (Tenn.), 12; Wilde vs. Bagan, 
 57 Ind., 453. 
 
 If the jury b3lieve, from the evidence, that the defendant 
 entered into a marriage contract with the plaintiff, within five 
 years before the commencement of this suit, and that under 
 the pretense of such promise of marriage, he seduced and got 
 the plaintiff with child, and then neglected and refused to 
 marry the plaintiff, these circumstances and such violation of 
 faith may be taken into consideration by the jury in estimat- 
 ing the plaintiff's damages. 
 
 If the jury believe, from the evidence, that the defendant in 
 this case has attempted to prove that the plaintiff was a lewd 
 or base woman, and was of immoral or bad character, and that 
 he has failed to establish and prove the same by a preponder- 
 ance of evidence, and that such attempt was not made in good 
 faitli, orwas made without any reasonable hope or expectation 
 of establishing such facts, then such charge and failure on the 
 part of the defendant may be taken in aggravation of the 
 damages in this case; provided, the jury find the issues for tlie 
 plaintiff. Sedg. on Meas. of Dam., 427; Fidler vs. McKinley 
 21 111., 308; i)avis vs. Slagle, 27 Mo., 600; Denslow vs. Van 
 Horn, 16 la., 476. 
 
 The jury are instructed, that should they find for the
 
 MEASUKE Oy DAMAGES. OoO 
 
 plaintiff, tliej alone are the judges of the amount of damages 
 to be found, and in fixing the amount of such damages, the 
 jury may take into consideration the length of time tlie parties 
 were acquainted, the degree of intimacy existing between 
 them, so far as proved, and all the injuries shown to have been 
 sustained, whether they be from anguish of mind, blighted 
 affections, or disappointed hopes, and fix the aniount of such 
 damages at such a sum as they think ))roper, under the evi- 
 dence and the instruction of the court. Sedg. on Meas. of 
 Dam., 235, 426; Kniffen vs. McConnell, 30 N. Y., 2S5 ; 
 KingyQ. Kersey, 2 Ind., 402; Ro;per vs. Clay, 18 Mo., 3S3. 
 
 § 17. Fraiul and Deceit. — The jury are in:^tructed, that in an 
 action founded in fraud and deceit, if the jury find the 
 defendant guilty, the amount of recovery is not necessarily 
 confined or limited to the actual damages sustained. If the 
 fraud or deceit is shown, by the evidence, to have been de- 
 liberate, willful and wanton, the jury are at liberty to give 
 exemplary or punitive damages, in addition to the actual 
 damages sustained. McAwy vs. Wright, 25 Ind., 22. 
 
 The jury are instructed, that if they find the defendants, or 
 either of them, guilty, then the measure of the actual damage, 
 if any, sustained by the plaintiff, is the difference b.^twcen 
 the actual value of the property in question, in the condition 
 it was in when sold, and the value of the same property if it 
 had been as stated and rejiresented by the defendant, at the 
 time of the sale. Sedg. on Meas. of Dam., 338; Tliompson vs. 
 Bicrgey, 36 Penn., 403; Page vs. Parl^er, 40 N. II., 47. 
 
 § 18. .Trespass and Trover. — The court instructs the jury, 
 that where property, taken by a trespasser, has been appro- 
 priated to the owner's use by his consent, either expressed or 
 implied, that fact should go in reduction of damages. 
 
 And such consent is always implied when the ])ruperty has 
 been legally seized and held under legal process, either in favor 
 of a stranger or in favor of the trespasser himself. Bates vs. 
 Courtwright, 36 111., 518. 
 
 If, under the evidence and the instruction of the court, the 
 jury find the defendant guilty of the taking and conversion of 
 the property in question, in manner and form as charged in
 
 336 MEASURE OF DAMAGES. 
 
 the declaration, then the measure of the plaintiff's damn^^cs is 
 the value of the property at the time of the conversion, as 
 shown by a preponderance of the evidence, with six per cent, 
 interest thereon, fi-om the time of such conversion. Scdg. on 
 Meas. Dam., 547; Tenner/ vs. State Banlc, etc., 20 Wis., 152; 
 Yates vs. Mullen, 24 Ind., 277; Folk vs. Allen, 19 Md.. 467; 
 Cutting vs. Fanning, 2 la., 580; Rejpley vs. Davis, 15 Mich., 
 75. 
 
 § 19. AVork and Labor — Part rerformance. — If the jury, etc., 
 that the plaintifE worked for the defendant, as claimed, and 
 tliat such work was done under a special contract, as to the 
 price, and that the plaintiff went on and jierformed, under that 
 contract, a part of the w^ork so contracted for, and that the 
 defendant accepted the work done, and if the jury hnd, from 
 the evidence, under the instructions of the court, that the 
 plaintiff is entitled to recover, then the contiact price must 
 govern the measure of compensation to Avhich the ]ilaintiff 
 will be entitled for the work actually done, whether such price 
 be more or less than the work was actually worth. 
 
 § 20. Contract to Delivor — Part Performance. — If the jury, 
 etc., that the plaintiff agreed to furnish defendant a certain 
 {qtiantity of stone), at a given price per {cord) and that ho 
 furnished a part only of the (stone), but not the whole quantity 
 contracted for, and that the defendant accepted and appropri- 
 ated to his own use the {sto7ie) tlius furnislied, and if the jury 
 find, from the evidence, under the instruction of the court, 
 that the plaintiff is entitled to recover anything, then the jury 
 are instructed, that the contract price must govern as to the 
 ]irice of the (stojie) actually delivered, wliether such price be 
 more or less than they were reasonably worth. MGClelland 
 vs. Snider, 18 111., 58. 
 
 § 21. Refiisal to Deliver Personal Property. — In this cape, if the 
 jury, under the evidence and the instruction of the court, find 
 the issues for the plaintiff, then the measure of damage is the 
 difference between the contract price and the market price, at 
 the place of delivery, at the time of the alleged breach of con- 
 tract complained of. And in ai riving at the amount of dam-
 
 MEASUKE OF DAMAGES. 337 
 
 ages, the jury will estimate the qnantitj' of [Jiops) which has 
 not been delivered, and give the difference between the nuar- 
 ket price and the contract price on so nuich of the contract 
 as the ]wYy believe, from the evidence, remains to be per- 
 formed. Sedg. on Meas. Dam., 295; Carney vs. Newherry^ 
 24 111., 203; Bush vs. Holmes, 53 Me., 417; Cannon vs. Fol- 
 som, 2 la., 101; Crosby vs. Watkins, 12 Cal., 85; Ze/iner \s. 
 Dale, 25 Ind., 433. 
 
 The jury are further instructed, that upon a breach of a 
 contract to deliver articles of personal property, at a particu- 
 lar place, within a certain time, at a certain price, and when 
 the property has been paid for, and subsequently delivered, 
 but not delivered within the specified time, the measure of 
 damages is the difference in the value of the property at such 
 place, at the time of actual delivery, and its market value at 
 the same place at the time fixed in the contract for delivery. 
 
 If the jury believe, from the evidence, that a contract was 
 entered into by the defendant, as alleged in plaintiff's declara- 
 tion, for the sale of {thirty thousand hricJc), at the price of % — 
 {per thousand?), to be delivered on demand, and that the ])laint- 
 iff demanded said brick, as claimed by him, and that he M^as 
 then ready and willing to pay for the sam^^, and that upon 
 such demand the defendant refused to deliver the brick, then, 
 if you further believe, from the evidence, that the market 
 price of the same kind of brick, at the time and place of such 
 demand, was greater than the contract price, the measure of 
 damages will be the difference between such market price and 
 the price agreed upon. Sleuter vs. Wallhaum, 45 111., 43. 
 
 § 22. Property Bought for Re-Sale — If, under the evidence 
 in the case and the instructions of the court, you find for the 
 p'aintiffs, then, upon the question of damages, the court in- 
 strncts you that if you believe, from the evidence, that at the 
 time of said sale the plaintiffs had a contract for the re-sale of 
 said hams at {Salt Lake City), and that they had sold the same 
 as of the quality aforesaid, and that at the time of the sale to 
 the plaintiffs the defendants had knowledge of such contract 
 of re-sale, and knew that the ]i]aintiffs purchased said hams to 
 fill said contract of re-sale, and that the hams were shipped to 
 the purchaser at {Salt Lahe) before the plaintiffs had notice of 
 22
 
 338 MEASURE OF DAMAGES. 
 
 their quality, and that upon their arrival at {Salt Lale) the 
 said purchasers refused to receive or pay for the same, for the 
 reason that they were not, at the time of their shipment to 
 him, of the quality he had bargained for, then you will award 
 to the plaintiffs, as damages, snch sum of money as you may 
 believe, from the evidence, the plaintiffs had re-sold the 
 said hams for, less such sum as you may believe, from the 
 evidence, said hams were actually worth at the time of their 
 purchase by the plaintiffs; and you will further allow the 
 plaintiffs such sums of money, if any, as you may believe, from 
 the evidence, they were obliged to pay out on account of the 
 transportation of said hams to {8alt Lake City). Thome vs. 
 McVeagh, 85 III, 81; Lewis vs. Roimtree, 79 N. C, 122. 
 
 § 23, Refusal to Accept Personal Property. — The jury are 
 instructed, that the rule of law is, that when a purchaser of 
 personal property which, by the terras of the purchase, is to 
 be delivered at a specified time and place, and at a stijmlated 
 price, refuses to receive and pay for the property, and no part 
 of the purchase price had been paid, and if the price has, in 
 the meantime, declined, then, in an action by the vendor against 
 the vendee for refusing to comply with contract, the proper 
 rule of damages is the difl'erence between the contract price 
 and the current price at the time and place for delivery, as 
 fixed by the contract of sale and purchase. McNaught vs. 
 Dodso'n, 49 III, 446. 
 
 § 24. Slander — Words Actionable, per se. — If, from the evi- 
 dence, under the instructions of the court, the jury find the 
 defendant guilty, then the jury are to determine, from all the 
 circumstances of the case, as proved on the trial, what dam- 
 ages ought to be given to the plaintiff", and find their verdict 
 accordingly. 1 Hill, on Torts, 408. 
 
 If, from the evidence, under the instruction of the court, 
 vou find the defendant guilty, then, in fixing the amount of 
 the plaintiff's damages, you may take into consideration the 
 mental suffering produced by the utterance of the slanderous 
 words, if you believe, from the evidence, that such suffering 
 has been endured by the plaintiff; and the present and prob- 
 able future injury, if any, to plaintifl''s character, which the
 
 MEASURE OF DAMAGES. 339 
 
 uttering of the words was calculated to inflict. Fry vs. Ben- 
 nett^ 4t Duer, 247; True vs. Plunileij, 36 Me., 406; Swift 
 vs. Dickermann, 31 Conn., 285; Hamilton vs. Eno^ 16 Hun, 
 599; Bait vs. Budwig, 28 K W. Eep., 282. 
 
 § 25. Damages Presumed, When. — In an action for slander, 
 the law implies damages from the speaking of actionable 
 words. And also that the defendant intended the injury the 
 slander is calculated to effect. And in this case, if the jury 
 believe, from the evidence, and under the instructions of the 
 court, that the defendant is guilty, as charged in the declara- 
 tion, then they are to determine, from all the facts and cir- 
 cumstances proved, what damages ought to be given; and the 
 jury are not conlined to the mere pecuniary loss or injury 
 sustained. Mental suffering, injury to reputation or character, 
 if proved, are proper elements of damage. Balder vs. Young^ 
 44 111., 42. 
 
 § 26. Pecxiniary Circumstances of Defendant. — The jury are 
 instructed, that if they find the defendant guilty, tlien, in fix- 
 ing the amount of plaintiff's damages, they may take into con- 
 sideration, in connection with all the other evidence in the 
 case, the pecuniary circumstances and social standing of the 
 defendant, and the character and standing of the plaintiff, so 
 far as those have been shown by the evidence: and they may 
 also take into consideration the fact, if proved, that the de- 
 fendant has reiterated the slander on different occasions to 
 different persons. Harhisoji vs. School, 41 111., 141 ; Ilum- 
 phriesvQ. Pai'Tter^ 52 Me., 502; Lewis vs. Ghap7nan, 19 Barb., 
 K Y., 252. 
 
 § 27. Plaintiff's Bad Reputation may be Shown. — If the jury 
 believe, from the evidence, that the plaintiff"'s general reputa- 
 tion for chastity (for honesty), at and before the alleged 
 speaking of the words in question, was bad, tlien the jury have 
 the right to take this fact into account in assessing the plaint- 
 ifl''s damages, in case you find the defendant guilty. Duval vs. 
 Davey, 32 Ohio St., 604; Maxwell vs. Kenedy., 50 Wis., 545. 
 
 § 28. Words Spoken in Heat of Passion. — If the jury believe,
 
 310 MEASURE OF DAMAGES. 
 
 from tlie evidence, tliat any of tlie slanderous words, charojed 
 in the declaration, were spoken by tlie defendant in tlie Ijeat 
 of passion, in a quarrel or altercation provoked bj the jlaint- 
 iff, then the jury have a right to take this fact into considera- 
 tion in fixino; the amount of damages. 
 
 If the jury believe, from the evidence, that the slander- 
 ous words were spoken in the heat of passion, provoked 
 by plaintiff, and were spoken in the presence of persons well 
 acquainted with the plaiutitf, and were not cii-culated by de- 
 fendant afterwards; and further, that the plaintiff has not, in 
 fact, been injured by the speaking of the words, then the facts 
 may be taken into account by the jury in fixing the amount 
 of plaintiff's damages. 
 
 § 29. Drunkenness in Mitigation. — The court instructs the 
 jury, that if you find, from tlie evidence, that the defendant 
 is guilty of speaking the slanderous words, as charged in the 
 declaration; that the defendant was, at the time, intoxicated 
 with spirituous liquors to such an extent as to deprive him of 
 the rational exercise of his mental faculties, tiiis fact will be 
 proper to be considered by the jury in determining whether 
 the defendant was prompted in speaking the words by malice, in 
 fact, and whether he ought to be charged with exemplary or 
 punitive damages. Unveil vs. Howell, 10 Ired. (jST. C), 81; 
 Gates vs. Jleredith, 7 Ind., 110. 
 
 § 30. Plea must be Filed in Good Faitli. — If the jury believe, 
 from the evidence, and from the facts and circumstances 
 ]iroved on the trial, that when the defendant filed his plea of 
 justification, he had no reasonable liope or expectation of prov- 
 ing the truth of it, then, if the jury believe, from the evidence, 
 that the defendant is guilty of the slander charged in the dec- 
 laration, they may, in fixing the amount of the plaintiff's dam- 
 ages, regard the filing of the plea as an aggravation of the 
 original slander. Ilarhison vs. Schook, 11 III, 111; Swails vs. 
 Butcher, 2 Ind., 81. 
 
 Although you should find, from the evidence, that the de- 
 fendant has not sustained his plea of justification, still the fact 
 that he has filed such plea should not of itself be regarded by 
 the jury as an aggravation of the original offense, if they be-
 
 MEASUKE OF DAMAGES. 341 
 
 lieve, from the evidence, that it was filed in good faith, and 
 with an honest belief, on the part of the defendant, that he 
 would be able to sustain the plea by evidence. 
 
 § 31. Exemplary Damages may be Given in Slander, When. — If 
 the jury, under the evidence and the instructions of the court, 
 find the defendant guilty in this case, in assessing the plaint- 
 iff's damages, they are not confined to such damages as will 
 simply compensate the plaintiff for such injuries as the evi- 
 dence shows she has received, by reason of the speaking and 
 publishing of the defamatory words charged in the declara- 
 tion, but they may, in addition thereto, assess against the de- 
 fendant, by way of punishment to him and as an example to 
 others, such damages as the jury, in their sound judgment, 
 under all the evidence in the case, believe the defendant ought 
 to pa}^, not exceeding, in any event, the amount of damages 
 claimed by the plaintiff in the declaration; provided the jury 
 believe, from the evidence, that the defamatory words were 
 spoken maliciously or wantonly by the defendant. Temple- 
 ton vs. Graves, 59 Wis., 95. 
 
 If the jury find the defendant guilty, they should then de- 
 termine, from all the facts and circumstances proved, what 
 damages ought to be given to the plaintiff; and the jury are 
 not confined to the mere pecuniary loss or injury, but they 
 may give damages as a punishment to the defendant, as well 
 as to compensate the plaintiff for the stain inflicted u]ion her 
 character; provided the jury believe, from the evidence, that 
 the defendant, in speaking the defamatory words, was actuated 
 by malice in fact. 
 
 If the jury believe, from tlie evidence, that the defendant 
 is guilty of uttering the slanderous words charged in the dec- 
 laration, then they may take into consideration the pecuniary 
 circumstances of the defendant, and his position and influence 
 in society, so far as those matters have been shown, by the 
 evidence, in estimating the amount of damages which the 
 plaintiff ought to recover. Hosley \5. BrooTxs^ 20 111., 115. 
 
 Though the jury may beh'eve, from the evidence, that the 
 defendant was guilty of speaking the slanderous words charged 
 in the declaration, still, if the jury find, from the evidence, 
 that the words were spoken without actual malice on the part
 
 312 MEASURE OF DAMAGES. 
 
 of the defendant, though under cu-cumstances showing a want 
 of caution and a proper respect for the rights of the plaintitf, 
 and that the plaintiff has suffered no special damage from the 
 speaking of the words, then the jury should only give com- 
 pensatory damages, and in such case compensatory damages 
 are such as will pay the plaintiff for his expenses and trouble 
 in carrying on the suit, and disproving the slanderous words. 
 Armstrong vs. Piersoii^ 8 Clarke (la.), 29. 
 
 § 32. Coniraon Carriers — Lo3s of Baggage. — The court in- 
 structs the jury, that if they find for the plaintiff in this case, 
 in assessing his damages, they may include the value of all 
 such articles of necessity and convenience as are usually carried 
 by passengers for their personal use and comfort, instruction 
 and amusement, or protection, having regard to the object and 
 length of the journey in question, and which are sliown, by 
 the evidence, to have been lost by the defendant, if any such 
 loss has been shown. 
 
 § 33. Goods Lost.— The jury are mstructed, that the meas- 
 ure of damages, in case of a failure of a common carrier to 
 deliver goods according to contract, and which are lost, is their 
 market or actual value at the time when, and the place where, 
 they should liave been delivered; and such value is purely a 
 question of fact to be fixed by the jury, from the evidence in 
 the case. C. & N. W. By. Co. vs. Dickinson, 74 111., 249. 
 
 § 34. Damages, How Determined. — The jury are instructed, 
 that a party suing for an injury received can only recover such 
 damages as naturallj^ flow from, and are the immediate result 
 of, the act comi)lained of. The jury should be governed solely 
 by the evidence introduced before them, and they ])ave no 
 right to indulge in conjectures and speculations not supported 
 by the evidence. Indianapolis JB. <& W. lid. Co. vs. Birnei/j 
 n 111., 391. 
 
 If, from the evidence in the case, and under the instructions 
 of the court, the jury shall find the issues for the plaintiff, and 
 that the plaintiff' has sustained damages, as charged in the 
 declaration, then, to enable the jury to estimate tlie amount of 
 such damages, it is not necessar}' that any witness should 
 have expressed an opinion as to the amount of such damage.
 
 MEASURE OF DAMAGES. 343 
 
 but tlio jury may, tliemselves, make siicli estimate from the 
 facts and circumstances in proof, and by considering them in 
 connection with their own knowledge, observation and exiie- 
 rience in the business affairs of life. Ottauoa Gas L. Go. vs. 
 Graham, 28 111., 73. 
 
 § 35. Exemplary Damages — Tn Trespass. — If the jury believe, 
 from the evidence, that a trespass was committed, as charged 
 in the declaration, by the defendant, or his sei'vants, by his 
 direction, in a wanton, willful and insulting manner, and that 
 the plaintiU has suffered any actual damage therefrom, then 
 the jury are authorized to lind exemplary damages; that is, 
 such damages as will com])ensate the p/laintitf for the wrong 
 done to him, and to punish the defendant, and to furnish an 
 example to deter others from the like practices. Sedg. on 
 Meas. Dam., 35; Gutler vs. Smith, 57 111., 252. 
 
 In action of trespass to persons or property, when the evi- 
 dence shows the trespass to have been malicious and willful, 
 oppressive, or wantonly reckless, the jury may give what are 
 known as punitive or exemplary damages. III. & St. L. lid- 
 Co. vs. Coh\ 68 111., 53. 
 
 To justify the recovery of exemplary damages for a tres- 
 pass to property, it must be shown, by the evidence, that the 
 defendant was actuated by malice or a reckless disregard of 
 the plaintiff's rights, and when tM'O are sued, and one of them 
 is not chargeable with malice or recklessness, exemplary dam- 
 ages cannot be recovered against both. Becker vs. Dajpree, 
 75 111., 167. 
 
 § 36. Exemplary Damages Defined. — Exemplary damages 
 mean damages given by way of punishment for the commis- 
 sion of a wrong willfully or wantonly, or with some element 
 of aggravation. They are not the measure of the price of the 
 property, or actual damage sustained, but they are given as 
 smart money in the way of pecuniary punishment, to make 
 an example for the public good, and to teach other persons 
 not to offend in like manner. Bates vs. Davis, 76 111., 222. 
 
 Note. — This increase of damag-es dependent upon the conduct of the 
 defendant, is considered in some states as actual damage given for the 
 injury to \\i(t feeJhtgs of the complaining party, such as shame, mental anxi- 
 ety, or insulted honor, as in the next four instructions.
 
 3i4 MEASUEE OF DAMAGES. 
 
 § 37. Malicious Prosecution. — Tlie jury are instructed, that if, 
 from the evidence and instruction of the court you find the 
 defendant guilty, tlicn in assessing the amount of the plaintiff's 
 damages you have a right to take into account the ] eril to 
 which defendant was subjected of losing his liberty, and also 
 the injury to his reputation and feelings, if you find from 
 the evidence that he was injured in his reputation and feelings 
 by the charge made against him. Lavender vs. Hiidgens, 32 
 Ark., 763. 
 
 The jury are instructed, that in actions of this kind, if the 
 jury find the defendant guilty under the evidence and instruc- 
 tions of the court, and that the plaintiii lias sustained any injury 
 or damage by reason of the charge brought against him, then, 
 in assessing the plaintiff's damages, the jury are not limited to 
 mere compensation for the actual damage sustained by him; they 
 may give him such a further sum by way of exemplary or vindic- 
 tive damages as the jury may think right in view of all the 
 circumstances proved on the trial, as a protection to the plaintiff 
 and as a salutary example to others to deter them from offend- 
 ing in like manner. And in determining the amount of exem- 
 plary damages which would be pro]3er to give, the jury may take 
 into consideration the pecuniary circumstances of the defend- 
 ant so far as they have been proved. Winn vs. Pecldtam^ 42 
 Wis. 493. 
 
 § 38. Trespass or False Tmpi'isonment. — If , under the evidence 
 and instructions of the court you find the defendant guilty, and 
 if you believe from the evidence that the defendant was guilty 
 of willful, gross and wanton op]iression of tlie plaintiff, then, in 
 assessing the plaintiff's damages, you are not limited to the 
 amount of his actual pecuniaiy loss, but j'ou may also take 
 into consideration his physical pain or bodily suffering if any 
 is shown, also his mental suffering, such as anguish of mind, 
 sense of shame, humiliation, or loss of honor, rejmtation or 
 loss of social position, if you find that these things have 
 resulted from the acts complained of, and allow the plaintiflE 
 such comjiensation therefor as you think will make good the 
 injury sustained. Stewart et al. vs. Iladdox^ 63 Ind., 52; 
 Scripts vs. liiley, 38 Mich. 10; Fenelon vs. Butts, 53 Wis., 
 344.
 
 MEASURE OF DAMAGES. 315 
 
 In an action for false imprisonment the jnvy should only 
 allow what are known as compensatory damages — that is, such 
 an amount as will make good to the plaintiff the damages 
 actually sustained by him, ])rovided tlie jury find the defend- 
 ant guilty — and in this case, if the jury tind from the evidence 
 Tinder the instructions of the court that the defendant is guilty, 
 then, in fixing the plaintiff's damages you may include the 
 delay in his business, if proved, also any bodily pain or mental 
 anguish, if you believe, from the evidence, that such pain and 
 mental anguish were suffered by the ])laintiff in consetpience 
 of the acts complained of , and also any injury to the plaintiff's 
 business, profession, reputation or social position, if you believe, 
 from the evidence, that he has sustained such injury by reason 
 of the wrongful acts complained of, and give the plaintiff such 
 an amount as damages as you believe, from the evidence, will 
 compensate him for the damages thus received.
 
 CHAPTER XXXII. 
 
 NEGLIGENCE GENERALLY. 
 
 Sec. 1. Burden of proof. 
 
 2. Ordinary and reasonable care required of defendant. 
 
 3. Plaintiff must exercise reasonable care and prudence. 
 
 4. Master liable for negligence of servant. 
 
 5. Servant must be acting within the scope of his employment. 
 
 6. Wrongful act of ser* ant. 
 
 7. The negligence charged must be the proximate cause. 
 
 8. Contractor's negligence. 
 
 9. Contributory and gross negligence. 
 
 10. Comparative negligence. 
 
 11. Equal negligence. 
 
 12. Injury the result of negligence and accident. 
 
 13. Wrongful and voluntary exposure. 
 
 14. Ordinary care defined. 
 
 15. Gross negligence defined. 
 
 16. Collision on highway. 
 
 17. Danger from fire. 
 
 18. jSTegligence of counties ana towns. 
 
 19. Intoxication as contributory negligence. 
 
 § 1. Burden of Proof.— The burden of proving negligence 
 rests on tlie party alleging it; and where a person charges 
 negligence on the part of another as a cause of action, he must 
 jirove the negligence, by a preponderance of evidence. And 
 in tliis case, if the jury iind that the weight of the evidence is 
 in favor of the defendant, or that it is equally balanced, then 
 the ])laintiff cannot i-ecover, and tlie jury should find the issues 
 for the defendant. Cooley on Torts, 673; McQuilJcen vs. 
 Cent, etc., Co., 50 Cab, 7; Q. A. c& St. L. R. B. Co. vs Well- 
 hoener, 72 111., 60; Iloyt vs. Hudson, 27 Wis., 656; St. Paul 
 vs. Kuhy, 8 Minn., 154; Jeffersonville, etc., vs. Lyon, 55 Ind., 
 477; MurpJiy vs. Chiccujo., etc., Jid. Co., 45 la., 661; Strand 
 vs. C. & W. M. By. Co., 34 N. W. Rep., 715. 
 
 The court instructs you, that if you believe, from the evi- 
 dence, that the defendant was guilty of negligence, as charged 
 iu the declaration, and that the plaintiff was injured thereby, 
 
 (346)
 
 NEGLIGEJSrCE GENERALLY. 347 
 
 then, as regards tlie defendant's liability, it makes no differ- 
 ence whether such negligence appears or is proved by the tes- 
 timony on the jiart of the plaintiff, or by the defendant's own 
 witnesses. Keokuk^ etc., Co. vs. Tnce, 88 111., 608. 
 
 Yow are instructed, that in determining the question of neg- 
 ligence in this case, you should take' into consideration the 
 situation and conduct of both parties at the time of the alleged 
 injury, as disclosed by the evidence; and if you believe, from 
 the evidence, that the injury complained of was caused by 
 tlie negligence of the defendant's servants, as charged in 
 the declaration, and witliout any greater want of care and skill 
 on the [)art of plaintiff than was reasonably to be expected 
 from a person of ordinary care, prudence and skill in the situ- 
 ation in which he found himself placed, then the plaintiff" is 
 entitled to recover. Wharton on Neg., § 304. 
 
 § 2. Ordinary and Reasonable Care Reqnired of Defendant. — 
 'The jury are instructed, that it is the duty of a street railroad 
 company to exercise all reasonable care and prudence to carry 
 their passengers with safety; and if an injury to a passenger 
 results from the carelessness of its servants in the management 
 of its cars, from a defective track or from an overloaded car, 
 or from all combined, the company will be liable; provided, 
 the passenger's OMm negligence does not contribute to the in- 
 jury. Chicago, etc., liy. Co. vs. Young, 62 111., 238. 
 
 § 3. Plaintiff Mnst Exercise Reasonable Care and Prudence. — 
 
 The jury are instructed, that the plaintiff was bound to exer- 
 cise ordinary care and prudence in attempting to cross the street, 
 and though the jury may believe, from the evidence, that the 
 crossing in question was dangerous, still, if they further believe, 
 from the evidence, that the accident in question is attributable 
 to the want of ordinary care on the part of the plaintiff, then 
 she cannot recover in this suit, unless the jury further believe, 
 from the evidence, that the defendant was guilty of such gross 
 negligence as implies willful or wanton injury. Cooley on 
 Torts, 674; Indianapolis, etc., It. R. Co. vs. McClure, 26 
 Ind., 370; Litchfield, etc., Co. vs. Tai/lor,Sll\]., 590; Brown 
 vs. Hannibal, etc., Rd. Co., 50 Mo., 461 ; Cooper vs. Cent. R. 
 R. Co., 44 la., 134.
 
 3.1:3 KEGLIGEKCE GENERALLY. 
 
 The court instructs you, that wliile a person walking on a 
 public liiglnvay is bound to use all reasonable care and caution 
 to avoid injury, yet, he is not held to the highest possible de- 
 gree of precaution and prudence ; and to authorize a recovery 
 for injuries negligently inflicted, it is only necessary that it 
 apjiear, from the evidence, that he vras using reasonable care 
 and caution. 
 
 The court instructs you, that when a person is injured by 
 the negligence of another, he must, after the injury is received, 
 act as an ordinarily reasonable and prudent man would under 
 the circumstances, and use reasonable diligence to know wheth- 
 er medical aid is required, and to use all reasonable efforts 
 to have himself cured; and if he does not do so, he cannot 
 recover of the defendant for any suffering, injury or damage 
 which results from his failure to exercise such care and dili- 
 gence. Toledo, W. & W. Rd. Co. vs. Eddy, 72 111., 13S. 
 
 § 4. Master Liable for Negligence of Servant. — The master is 
 civilly liable for the tortious acts of his servants, whether of 
 omission or commission, or whether negligent, fraudulent or 
 deceitful, if done in the course of his employment, even though 
 the master did not authorize or know of such acts, or may 
 have forbidden them. But the act rnust be done, not only 
 while the servant is engaged in the service he is employed to 
 render, but it must pertain to the particular duties of that em- 
 ployment. Snyder vs. Hannibal Rd. Co., 60 Mo., 413; Rob- 
 inson vs. Wehb, 11 Bush (Ky.), 464; Eckert vs. St. Louis, etc., 
 2 i^fo. App., 36. 
 
 The court instructs you, that where a tort or wrong is com- , 
 mitted by an agent or employe, in the course of his employ- 
 ment, and while pursuing the business of his employer, the 
 employer will be liable for the damages resulting from the 
 wrongful act, although it is done without the employer's knowl- 
 edge or consent, unless the wrongful act is a willful departure 
 from such employment or business. 1 Add. on Torts, 31; 
 Cooley on Torts, 533; Goddard vs. Grand Trunk R. R. Co., 
 57 Me., 202; Phila., etc., R. R. Co. vs. Derby, 14 How., U. 
 S., 468; Bryant vs. Rich, 106 Mass., 180; Ind. R. R. Co. vs. 
 Anthony, 43 Ind., 183. 
 
 The court instructs you, that when the employer gives his
 
 NEGLIGENCE GEKKKALLY. 349 
 
 servant s^eneral directions as to tlie business wliich is entrusted 
 to liini to perform, then the employer is held to have confided 
 in the discretion of his servant, and is answerable for all the 
 acts of the servant in the performance of the duty required. 
 If you believe, from the evidence, that before and at the 
 time of the injury com])lained of, the said S. W. was in the 
 em|)loy of the defendants, and that in the course of such em- 
 ploy inont and while pursuing the business of his employers, 
 and while the plaintiff was walking in one of the public streets 
 in the city of 0., the said S. W., carelessly and negligently 
 permitted a horse that lie was riding to run against the plaint- 
 iff, and thereby injure the plaintiff, as charged in the declara- 
 tion, then you should find the issues for the plaintiff; pro- 
 vided, you further find, Ihat the ])laintiff was, at the time, exer- 
 cising all reasonable care and caution to avoid such injury. 
 
 § 5. Servant Must be Acting AVithin Scope of Employment.— 
 
 Although the jury may believe, from tlie evidence, that, at the 
 time in question, the said A. B. was in the general employment 
 of the defendant as, etc., and that he committed the wrongful 
 act complained of in the declaration, still, if the jury further 
 believe, from the evidence, that when the said A. B. [ran over 
 the plaintiff ) he was not acting within the scope his employ- 
 ment, or in furtherance of the defendant's business, but was 
 carrying into effect some purpose of his own not connected 
 with his employment, then the defendant would not be liable 
 for such act. 
 
 If you believe, from the evidence, that the injuries com- 
 plained of were caused by the negligence or carelessness of 
 the servants of the defendant, in the course of their employ- 
 ment as such servants, as charged in the declaration, and with- 
 out any fault on the part of the plaintiff, M-hich contributed to 
 the injury complained of, then the defendant is liable in this 
 action. 
 
 If you believe, from the evidence, that the injuries com- 
 plained of were caused by the want of reasonable care and 
 watchfulness of the servants of the defendant, in the course of 
 their employment as such servants, as charged in the declara- 
 tion, and that the plaintiff made use of all the care, exertion 
 and skill to avoid tlie injury, which could reasonably be ex
 
 350 KEGLIGENCE GENERALLY. 
 
 pected from a man of ordinary prudence, energy and skill, 
 under the circumstances shown by the evidence, then the de- 
 fendant is liable in this action. 
 
 The rule of law is, that a master is responsible for the 
 wrongful act of his servant, even if it be willful, reckless or 
 malicious ; provided, the act is done by the servant within the 
 scope of his employment, and in furtherance of his master's 
 business, or for the master's benefit. 1 Add. on Torts, 31. 
 
 § 6. Wrongful Act of Servant. — If the Jury believe, from 
 the evidence, that defendant's engineer, with intent to frighten 
 plaintiff's horses, unnecessarily and wantonly let oii steam or 
 blew a whistle, and thereby frightened plaintiffs horses, so 
 that they ran off and injured him while he was in the exercise 
 of all reasonable care and prudence in that behalf, then the 
 defendant is guilty, and the jury should find for the plaintiff. 
 Toledo^ etc.j lid. Co. vs. Harmon^ 47 111., 298. 
 
 § 7. The Negligence Charged Must be the Proximate Cause. — 
 The court instructs the jury, that the rule of law is, that every 
 person must be held liable fur all of those conccquences which 
 flow naturally and directly from this act, or which might have 
 been foreseen and reasonably expected as the result of his 
 conduct, but not for those consequences which do not flow 
 naturally and directly from his acts, or which he could not 
 have foreseen or reasonably liave anticipated as the result of 
 his conduct. Cooley on Torts, 68; Wharton on Xeg., § T4- 
 78; 2 Parsons onCont, 456; Rigby vs. Ileioitt, 5 Exch., 240; 
 1 Add. on Torts, 6; Fent vs. T. P. <& W. Ed. Co., 59 111., 
 349; BrasJiberg \&. MihcauJiee, etc., Ed. Co., 50 "Wis., 231. 
 
 If you believe, from the evidence, that the defendant was 
 guilty of the negligence or carelessness charged in the declara- 
 tion, and that the injury complained of was the natural con- 
 sequence of such negligence or carelessness, and such as might 
 have been foreseen and reasonably anticipated as the result of 
 such negligence or carelessness, then such carelessness or neg- 
 ligence should be regarded as the ap[)roximate cause of the 
 injury. 
 
 You are instructed, that although you may believe, from 
 the evidence, that the injury complained of was occasioned by
 
 NEGLIGENCE GENERALLr. 551 
 
 tlie acts of the defendant, still, if yon further believe, from 
 the evidence, that such injury was not the natural result of the 
 acts of the defendant, and could not have been foreseen or rea- 
 sonably expected to result from the conduct of the defendant, 
 then the defendant would not be liable. 
 
 You are instructed, that an act is not to be deemed the 
 proximate cause of an injury, unless the injury was such a con- 
 sequence of the act as, under the surrounding circumstances of 
 the case, might and ought to have been foreseen or anticiimted 
 by an ordinarily reasonable and prudent man, as reasonably 
 likely to flow from the act. Hoag vs. LalxC Shorey etc., lid. 
 Co., 85 Penn. St., 293. 
 
 § 8. Contractor's Negligence. — The conrt instructs the jury, 
 as a matter of law, that when work is contracted to bj done 
 by a contractor, the owner retaining or exercising no control 
 over the manner of doing the work, and the work isnotof itself 
 dangerous, but only becomes so by the negligence of the con- 
 tractor, then the employer is not liable for injuries resnlting 
 from the negligence of the contractor. Mijer vs. Uohhs, hi 
 Ala., 175; Pierrepoint vs. Loveless, 72 jST. Y., 211. 
 
 Although the jury may believe, from the evidence, that the 
 defendant was the owner of the premises adjoining the side- 
 walk in question, and that the work on the building and walk 
 was being done for hire, and that a dangerous and unsafe 
 opening had been left in the walk by reason whereof the 
 plaintiff was injured, as alleged, while exercising reasonable 
 care himself, still, if you further believe, from the evidence, 
 that before the time of the alleged injury, the defendant had 
 entered into a written contract with A. &. B. for an erection of a 
 building on said premises, and that the said A. &B. were then 
 reputed to be skillful, reliable and competent builders, and that, 
 at the time of the injury, said contractors were in the exclusive 
 possession of said premises and sidewalk, pursuant to the terms 
 of said contract, for the purpose of erecting said building and 
 doing said work, and were not subject to the control or 
 direction of the defendant as to the manner of doing the 
 work, and that the acts charged as the cause of the injury 
 were the acts of the said contractors or their employes, and 
 not of the defendant nor of his servants or agents, then the de-
 
 O02 NEGLIGENCE GENERALLY. 
 
 fendant would not be liable for such injury. Ryan et al. vs. 
 Gurran et al., 64 Ind., 345. 
 
 That when work is contracted to be done wliich is danger- 
 ous of itself, unless guarded, and the employer makes no pro- 
 vision in his contract for its being guarded, and makes no 
 reasonable effort to guard it himself, then he is negligent, and, 
 if injury results tlierefrom, he cannot escape liability, on the 
 ground that the work was done by a contractor. Wood vs. 
 Ind. S. D., 44 la., 27; Hale vs. Johnson, 80 111., 185. 
 
 The court instructs the jury, that it is a rule of law that 
 when certain work, and the manner of doing it, are assented 
 to by the employer, and damage to a third party must neces- 
 sarily or naturally result from the work and the manner of 
 doing it, then the employer will be liable. And in this case, 
 if the jury believe, from the evidence, that the defendant 
 employed the said A. B. to blast the rocks in question, for the 
 purpose of getting out the stone from the quarry, and that the 
 said A. B., in pursuance of such contract, did blast out the 
 stone in question, and that plaintiff's property was damaged in 
 consequence of such blasting, then the defendant would be 
 liable for such damage, provided you further believe, from 
 the evidence, that the said A. B. was not guilty of any special 
 negligence or want of ordinary care in doing said work, which 
 resulted in or contributed to such injury. Tiffin vs. McCor- 
 mack, 34 Ohio St., 638. 
 
 § 9. Contributory and Gross Negligence. — Although the jury 
 may believe, from the evidence, that the defendant's servants 
 were guilty of negligence, which contributed to the injury 
 {or death) in question, still, if the jury further find, from the 
 evidence, that the plaintiff {or deceased) was also guilty of 
 negligence, which directly contributed to the injury, then the 
 plaintiff cannot recover in this suit, unless the jury further 
 find, from the evidence, that the negligence of the dt fond- 
 ant's servants was malicious and willful or wantonly reckless, 
 showing an utter disregard for the rights and property of the 
 plaintiff {or the life of the deceased), and that the negligence 
 of the plaintiff was but slight, as explained in these instruc- 
 tions. Cooley on Torts, 674; Lafayette, etc., lid. Co. vs. 
 Adams, 26 Ind., 76; Mulherrm vs. Delaware, etc., Rd. Co.,
 
 KEGLIGENCE GENERALLY. 6i)6 
 
 81 Penn. St., oCj(j; Chicago, etc., lid. Co. vp. Dona/i.ue, 75 IH., 
 100; Broiiyn vs. Hannibal, etc., lid. Co., 50 Mo., 461; Cooper 
 vs. Cent. Rd. Co., 44 la., 134; Bm^hamv?,. iSt. Louis, etc., lid. 
 Co., 56 Mo., 338; Ilutchins vs. Priestly E. ^Y., etc., Co., 28 
 ]Sr. W. Rep., 85; Winchester vs. Case, 5 111. App., 486. 
 
 Although the jury may believe, from the evidence, that the 
 defendant was guilty of negligence upon the occasion in ques- 
 tion, which contributed directly to the injury complained of, 
 yet, if they further believe, from the evidence, tliat the plaintiff 
 was also guilty of negligence which contributed directly to the 
 injury, then the plainliff cannot recover in this suit, unless the 
 jury further find, from the evidence, that the conduct of tlie 
 defendant's servants was malicious and willful or wantonly 
 reckless. 
 
 The court instructs you, that if you believe, from the evi- 
 dence, that the {deceased) might, in the exercise of ordinary 
 care and caution, have seen the danger and avoided it, and that 
 his omission to do so directly contributed to the injury, then he 
 was guilty of such negligence as will prevent a recovery in this 
 suit, unless you further find, from the evidence, that the injury 
 was caused by the willful, intentional or wantonly reckless acts 
 of the defendant or its servants. 
 
 If you believe, from the evidence, that the defendant, or its 
 servants, were guilty of negligence, as explained in these in- 
 structions, upon the occasion referred to, and that the plaintiff 
 was injured thereby, as stated in the declaration, and that he 
 has sustained damage by reason thereof; and also that the plaint- 
 iff was himself guilty of slight negligence, which contributed 
 to the injury, and without which the accident would not have 
 happened, still the defendant would be liable in this case; 
 ]irovided, you further believe, from the evidence, that the 
 Fcrvants of the defendant saw the danger, to which the plaint- 
 iff was exposed, in time to have averted it, and by the exercise 
 of ordinary care and prudence could have ]M-evented the 
 injury. Wharton on ¥eg., § 301; Cooley on Torts, 675; 
 Harlan vs. St. Louis, etc.. Lid. Co., 65 Mo., 22. 
 
 Note. — In Illinois, Georgia and Tennessee, a party guilty of contributory 
 negligence, may recover for injuries sustained through the negligence of 
 another; provided, the negligence of the other party is gross and the con- 
 tributory negligence is slight, when compared with each other The in- 
 structions in this section are drawn with reference to this view of the law. 
 23
 
 NEGLIGENCE GENERALLY. 
 
 § 10. Comparative Negligence — Contributory Negligence Sligl:t. 
 — The court iustructs tlie jnrj, that while a person is bound 
 to use reasonable care to avoid injury, yet he is not held to 
 the hifrhest degree of care and prudence, of which the linnmn 
 mind is capable; and to authorize a recovery for an injury, he 
 need not be wholly free from negligence ; provided, his neg- 
 ligence is but slight, and the other party be guilty of gross 
 negligence, in comparison therewith, as defined in these in- 
 structions. Galena (& C. U. E. E. Co. vs. Jacobs, 20 111., 478; 
 (7., B. & Q. E. E. Co. vs. Eazzard, 26 111., 373; C, B. d? Q. 
 E. E. Co. vs. Deweij, Admx., 26 111., 255; 111. C. E. E. Co. 
 vs. Simmons, 38 111., 242; C. & A. E. E. Co. vs. Gretzner, 
 46 111., 76; C (& IST. W. E. E. Co. vs. Sweeny, 52 111., 325; C, 
 B. & Q. E. E. Co. vs. Damerell, 81 111., 450; C, B. & Q. E. 
 E. Co. vs. Lee, 68 111., 580; C, B. & Q. E. E. Co. vs. Johnson, 
 Admr., 103 111., 512; Chicago vs. Stearns, 105 111., 554; W., St. 
 L. <& P. Ey. Co. vs. Wallace, 110 111., .114; 3 Am. and Eng. 
 Ency., 367. 
 
 And fh this case, although the jury may believe, from the 
 evidence, that the plaintiff was guilty of slight negligence, yet 
 if the jury further believe, from the evidence, he was exercis- 
 ing ordinary care, and that the ]ilaintiff's negligence was but 
 slight, and that the defendant's servants were guilty of gross 
 negligence in comparison with the negligence of the plaintiff 
 as explained in these instructions, and that the injuries com- 
 plained of were caused by the negligence of the defendant's 
 servants, then the plaintiff is entitled to recover. 
 
 The court further instructs the jury, that if they believe, 
 from the evidence, that the plaintiff was exercising ordinary 
 care and prudence at the time in question and was guilty of 
 only slight negligence, which contributed to the injury, and 
 that the defendant {servants of the defendant) was wanting 
 in the care and prudence which a very careless man would 
 ordinarily exercise under the same circumstances, then the de- 
 fendant was guilty of gross negligence; and if the jury further 
 believe, from the evidence, that such gross negligence was the 
 cause of the injury in question, as charged in the declaration, 
 and tiiat the negligence of the plaintiff was but slight when 
 compared with the negligence of the defendant, then they 
 should find tlie issues for the plaintiff. Lycoming Lis. Co. 
 vs. Barringer, 73 111., 230.
 
 NEGLIGENCE GENERALLY. 355 
 
 The court instructs the jury, that while a person, walking 
 on a public highway, is bound to use all reasonable care and 
 caution to avoid injury, yet he is not held to the highest pos- 
 sible degree of ])recaution and prudence ; and to authorize a 
 recovery for injuries negligently inflicted, the plaintiff need 
 not be wholly free from negligence; provided, his negligence 
 is slight in itself, and the negligence of the other party is 
 gross in comparison with each otlicr. 
 
 And in this case, though the jury may believe, from the 
 evidence, that the plaintiff was guilty of slight negligence, yet, 
 if the jury further believe, from ihe evidence, that the defend- 
 ant was guilty of gross negligence, and that the injury com- 
 plained of was caused thereby, and that the negligence of the 
 plaintiff was but slight when compared wnth the negligence 
 of the defendant, then the plaintiff is entitled to recover. 
 
 The court instructs the jury, that the question of the liabil- 
 ity of the defendant does not depend wholly upon the absence 
 of all negligence upon the part of the plaintiff {or deceased), 
 but it depends upon the relative degree of care, (5r want of 
 care, manifested by both parties, as shown by the evidence. 
 And in this case, although the jury may believe, from the evi- 
 dence, that the plaintiff {or deceased) was not wholly wnthout 
 fault, yet, if they further believe, from the evidence, that lie 
 was exercising ordinary care and prudence, and that the de- 
 fendant was guilty of gross negligence, upon the occasion 
 referred to, and that the injury complained of was occasioned 
 by such gross negligence, and if you further believe, from the 
 evidence that the negligence of the plaintiff' was but slight in 
 comparison to the negligence of the defendant, then the jury 
 may find the defendant guilty. 
 
 The jury are instructed, that if they believe, from the evi- 
 dence, that upon the occasion referred to by the witness, a 
 bell was not rung nor a whistle sounded, at a distance 6f (80 
 rods) from the crossing, and kept ringing or whistling until 
 tlie crossing was reached, and that the plaintiff was lulled into 
 security by reason of such neglect on the part of the defend- 
 ant, and in attempting to cross the railroad track, was struck 
 and injured, as charged in the declaration, then the plaintiff 
 will be entitled to recover, in this suit, if he was exercising 
 such care at the time as a reasonably prudent man will adopt
 
 356 KEGLIGENCE GENERALLY. 
 
 for tlie security of liis person or property under similar cir- 
 cumstances, even though he was guilty of slight negligence; 
 if the jury believe, from the evidence, that his negligence 
 was but slight, and the negligence of the defendant was gross 
 in comparison therewitli. Chi. <& A. Rd. Co. vs. Elmore, 67 
 111., 176. 
 
 It was the duty of the defendant to use reasonable diligence 
 to keep the sidewalk in question in a reasonably safe condition, 
 and if the jury believe, from the evidence, that tiie defendant 
 failed to perform such duty, and that by reason of its negli- 
 gence in that regard the said sidewalk was permitted to reuiiiin 
 out of repair and in a dangerous condition, by reason whereof 
 the plaintitf, while exercising reasonable care on her part, 
 received the injury complained of, then the defendant is liable. 
 And the court further instructs the jury, that if they find, 
 from the evidence, that the plaintiS was herself guilty of som.e 
 negligence, but that the defendant was guilty of gross negli- 
 gence contributing to such injury, and that the plaintiff's neg- 
 ligence was slight as compared with the negligence of the 
 defendant, still she may be entitled to recover. City of Chi- 
 cago vs. Stearns, 105 111,, 554. 
 
 That in an action against a railroad company, to recover for 
 injuries occasioned by the alleged negligence of the company 
 in running its train, although the servants of the company 
 may have been guilty of negligence, contributing to the in- 
 jury com])lained of, still, if the plaintiff could, by the exercise 
 of ordinary care and prudence, have avoided the injui-y, he 
 cannot recover. Chicago c& A. Rd. Co. vs. Jacobs, 63 111., 178. 
 
 The court instructs the jury, that to entitle the plaintiff to 
 recover, the jury must believe, from the evidence, that the 
 injury complained of was occasioned by the carelessness or neg- 
 ligence of the defendant, or its servants, in the manner 
 charged in the declaration. And if the jury believe, from 
 the evidence, that the plaintiff was guilty of negligence, con- 
 tributing to the injury, then to entitle plaintiff to recover, the 
 jury must further believe, from the evidence, that the negli- 
 gence of the defendant was gross, and that of the plaintiff was 
 but slight, in comparison with each other; and if the jury 
 believe, from the evidence, that the negligent conduct of the 
 plaintiff contributed as much, or nearly as much, to produce
 
 NEGLIGENCE GENERALLY. S57 
 
 the injury as that of the defendant, or that he was not, at tlio 
 time, exercising ordinary care, then the plaintiff cannot re- 
 cover, and the jury should lind for the defendant. 
 
 The court instructs the jury, that even if they should he- 
 lie ve, from the evidence, that the deceased was guilty of 
 slight negligence, upon the occasion refen-ed to, still, if they 
 further believe, from the evidence, that he was in the exercise 
 of ordinary care and prudence, and that the servants and agents 
 of the company were guilty of gross negligence, and that the 
 negligence of the deceased was but slight, in comparison with 
 the negligence of the servants and agents of the company, 
 and, further, that the ])ersons for whose use this suit is 
 brought have sustained damage in the death of the deceased, 
 as charged in the declaration, then the jury should find the 
 issues for the plaintiff. 
 
 The jury are instructed, that the law is, that if a railroad 
 company is guilty of gross negligence, resulting in the death 
 of a ])erson, and such pierson while in the exercise of ordinary 
 care and prudence is guilty of only slight negligence in com- 
 parison to the negligence of the railroad company, contribu- 
 ting to the injury, such contributory negligence will not of 
 itself prevent a recovery against the company. P,^ P. c& J. 
 Pel. Co. vs. Champ, 75 111., 577. 
 
 The court instructs the jury, that even though they may 
 believe, from the evidence, that the deceased was guilty of 
 slight neglii^ence, yet, if they further find, from the evidence, 
 that the negligence of the deceased was but slight, and that 
 the negligence of the defendant was gross in comparison to 
 each other; and they further find, from the evidence, that the 
 death of the deceased was caused by such gross negligence on 
 the part of the defendant, then the negligence of the deceased, 
 if he was in the exercise of ordinary care at the time, will not 
 prevent a recovery in this case, if the jury find, from the evi 
 dence, that all the other material averments in the declaration 
 are proved. 111. Cent. Pd. Co. vs. Goddard, 72 111., 567; 3 
 Am. & Eng. Ency., 367. 
 
 § 11. Equal Negligence. — The court instructs the jury, tliat 
 though they may believe, from the evidence, that the defend- 
 ant was guilty of negligence, upon the occasion in question,
 
 358 NEGLIGENCE GEXKKALLT. 
 
 and tliat such negligence contributed to tlieinjurj conij^lained 
 of, yet, if the jury further believe, from the evidence, that the 
 plaintiff was also guilty of an equal, or nearly equal, degree of 
 negligence, directly contributing to the injury, and without 
 which it could not have occurred, 4;hen the jury should find 
 the de endant not guilty. 
 
 In this case, if you believe, from the evidence, that both the 
 deceased and the agents and servants of the railroad company 
 were guilty of gross negligence, contributing to the injury of 
 which the deceased died, then you should find your verdict for 
 the defendant. 
 
 § 12. Injury the Result of Xegli;^ence and Accident. — The court 
 instructs the jury, as a matter of law, that if a person receives 
 an injury as the combined result of an accident and of negli- 
 gence on the part of another, and the accident would not have 
 occurred but for such negligence, and the danger could not 
 have been foreseen or avoided by the exercise of reasonable care 
 and prudence, on the part of the person injured, then the per- 
 son guilty of the negligence will be liable for the injury re- 
 ceived. City of Aurora vs. Pulfer, Q'd 111., 270. 
 
 The court instructs you, that to entitle the plaintiff to 
 recover in this suit, it must apjiear, from the evidence, that 
 the injur}' complained of was occasioned by the want of atten- 
 tion, carelessness or negligence on the part of the defendant 
 or its servants, as charged in the declaration, and was not sim- 
 ply the result of an accident; and if you believe, from the 
 evidence, that the injury resulted from an accident which 
 could not have been foreseen or guarded against, by the exer- 
 cise of ordinary and reasonable care and prudence, on the part 
 of the defendant, then the ])laintift' cannot recover, and you 
 should find for the defendant. 
 
 § 13. Wrongful and Voluntary Exposure. — The jury are in 
 etructed, that if a man wrongfully gets upon a freight car and 
 voluntarily puts himself in a dangerous place on a car, while 
 in motion, he does so at his own risk; and if the persons in 
 charge of the car see him and do not notify him that he is in 
 danger, this is not such negligence as will render the company 
 liable — the persons in charge of the car are under no legal 
 obligation to notify him that such place is a dangerous one.
 
 NEGLIGENCE GENERALLY. 359 
 
 § 14. Ordinary Care Defined. — The court instructs tlie jury, 
 tluit ordinary care depends upon the circumstances of each 
 particular case, and is such care as a person of ordinary pru- 
 dence and skill would usually exercise under the same or simi- 
 lar circumstances. N'orfolh, etc., Rd. Co. vs. Ormshy, 27 
 Gratt., Crojiin vs. 21ie Village, etc., 50 Wis., 375. 
 
 Slight Negligence Defined. — That slij^ht negligence means the 
 absence of that degree of care and vigilance which persons of 
 extraordinary prudence and foresight are accustomed to use 
 under similar circumstances. Hammond vs. Town of, etc., 40 
 Wis., 35. 
 
 § 15. Gross Negligence Defined. — By the term gross negli- 
 gence, as used in these instructions, is meant a wrongful act or 
 omission, willfully and maliciously done or omitted, or wan- 
 tonly reckless conduct, showing an utter disregard of the 
 rights of others. 
 
 The term gross negligence, as used in this class of cases, 
 means the want of that degree of prudence and care which 
 even extremely careless and imprudent men are accustomed to 
 exercise, under the same or similar circumstances. 
 
 Gross negligence is defined to be the want of slight care, or 
 an utter disregard of consequences in the performance of a 
 given act. C, B. c& Q. R. R. Co. v. Johnson, 103 111., 523. 
 
 § 16. Collision on the Highway. — The Jury are instructed 
 as a matter of law, that the rights of footmen and horsemen, 
 on a public highway, a- e equal, and the law requires both 
 parties to use all reasonably prudent precautions to avoid acci- 
 dent and damage to themselves or others. 
 
 If the jury believe, from the evidence, that at the time of 
 the alleged injury the plaintiff was walking along one of the 
 public streets of the city of C, with his back towards the said 
 S. W. and at the same time the said S. W. was riding a horse 
 on the same street, in the direction of the ])laintiff, and that 
 the said S. W. saw, or by the exercise of reasonable care and 
 caution could have seen, the ])laintiff in season to have stopped 
 his horse, altered its course, or in some way avoided the accident; 
 and if the jury further believe, from the evidence, that the said
 
 3G0 NEGLIGENCE GENERALLx. 
 
 S. W. did not do so, but carelessly and ne<^Hgently permitted 
 tlie horse which he was riding to run against the plaintiff and 
 Icnock him down, and thereby injured him, as chai-ged in the 
 declaration, this would be negligence on the part of S. W.; and 
 if the jury further believe, from the evidence, that the said 
 S. W. was, at the time, in the employ of the said defendants, 
 and pursuing their business, then the defendants are liable for 
 such negligence; provided, the jury further believe, from the 
 evidence, that the plaintiff was himself without fault or neg- 
 ligence which contributed to the injury. And was at the time 
 exercising ordinary care to avoid personal injury. 
 
 Even though the jury should believe, from the evidence, 
 that the plaintiff was at first guilty of some degree of negli- 
 gence, still, if the jury fm'ther believe from the evidence that 
 the driver of the wagon actually saw the plaintiff and had a 
 full view of the situation before the accident and by the exer- 
 cise of reasonable and ordinary care could have avoided or 
 prevented the injury, and he then failed to exercise such care 
 and, in consequence of the want of such reasonable and ordi- 
 nary care on his part, the plaintiff received the injury com- 
 plained of, then the defendant is guilty. 
 
 A person about to cross a street in a city, in which there is 
 an ordinance against fast driving, has a right to presume, if he 
 has no knowledge or notice to the contrary, that others will 
 observe and conform to the ordinance in driving on said street, 
 and it would not be negligence on his part in such a case to 
 act on the presumjition that, in attempting to cross, he will be 
 exposed to a danger which could only arise through a disre- 
 gard of the ordinance by othei's. Baker vs. Pendergast, 32 
 Ohio St., 494. 
 
 If a person about to cross a street knows, or by the exercise 
 of reasonable care and caution could, that others are driving 
 along the street at the place of crossing at a rate of speed for- 
 bidden by the ordinance, or if he has the full means of know- 
 ing the rate at which tliey are driving, then the existence of 
 sucli an ordinance would not authorize a presumption which 
 Avas known to be otherwise, or which, by the exercise of ordi- 
 nary care and prudence, he might have known to be other- 
 wise. 
 
 In the use of a public highway a person has a right to
 
 NEGLIGENCE GENERALLY. 361 
 
 expect from others using the same higliway ordinary pru- 
 dence and care to avoid accidents, and to rely upon that 
 presumption indetei-mininii^ his own manner of usin<i; the road- 
 
 Although the jury may believe, from the evidence, tluit the 
 injury complained of resulted from the negligence of the 
 defendant, still this will not entitle the plaintiff to recover, if 
 the jur}' believe, from the evidence, that, by using reasonable 
 and ordinary care and judgment, the driver of plaintiS's team 
 might have avoided the injury. 
 
 In deciding whether the plaintiff's daughter was guilty of 
 negligence upon the occasion in question, or was exercising 
 ordinary care in driving the team as she did, the jury should 
 consider lier age and the fact that she was a woman, and she 
 would not be guilty of negligence if she used that degree of 
 care and judgment that a person of her age and sex would 
 ordinarily use. 
 
 If the jury believe, from the evidence, that defendant's 
 teamster in charge of his horses and wagon, was a person of 
 ordinary and reasonable skill in the business in which he was 
 engaged, and that he exercised the ordinai-y judgment and 
 skill of a prudent and competent teamster in driving defend- 
 ant's team, at the time of the alleged injui-y, but that by an 
 error of judgment, he contributed to the injury of plaintiff's 
 horse, without any want of ordinary care, skill or caution on 
 his part, then the verdict must be for tlie defendant. 
 
 § 17. Danger from Fire. — -The jui-y are instructed, that 
 the question of negligence or diligence dejiends ujion and 
 partakes of the surrounding circumstances })eculiar to each 
 case, and in tliis case, if the jury believe, from the evidence, 
 that defendant's mill, as it was accustomed to be used, endan- 
 gered the buildings of the plaintiff by reason of throwing out 
 fire and sparks from the chimney, then it became the duty of 
 the defendant to avail himself of some such well known a]>pa- 
 ratus, or other means, to prevent the escape of sparks and fire 
 from the cliimney as experience had shown to be reasonably 
 adequate for that purpose; whether such apparatus or means 
 was generally used on such chimneys or not, provided the jury 
 believe, from the evidence, that apparatus had been dis- 
 covered and was generally known to persons engaged in the
 
 362 NEGLIGENCE GENERALLY. 
 
 same or similar business wliieli would have lessened the dan- 
 gler, and were in tlieir nature and operation reasonably sus- 
 cejitible of baing applied to chimneys of the kind used by the 
 defendant. Hoyt vs. Jeffers^ 3i) Mich., 181. 
 
 If the jury believe, from the evidence, that the erection 
 and operation of defendant's mill endangered the plaintiff's 
 property by fire, then it was the duty of the defendant in the 
 erection and ©iteration of said mill to use such precautions, 
 and to take such measures to lessen the danger and prevent 
 the injury as an ordinarily prudent and careful man conver- 
 sant with the business and the danger and all the surround- 
 ings affecting the risks would ordinarily have used to protect 
 his own property from danger. And if the jury believe, from 
 the evidence, that the defendant fell short of this degree of 
 precaution, and operated his mill with less care and caution 
 than an ordinarily prudent and careful man would have used 
 under the same circumstances, and that a loss thereby accrued 
 to the plaintiff, then the defendant is liable, provided the jury 
 believe, from the evidence, that the plaintiff's own negligence 
 did not in any manner contribute directly to the injury. 
 
 If the jury believe, from the evidence, that the operation of 
 defendant's mill endangered the plaintiff's property by the es- 
 cape of sparks from the chimnej^ then, in adopting means to 
 check the flow of spai'ks, the defendant was bound not only to 
 adopt measures calculated to arrest the danger, if such means 
 were generally known and used, but he was bound to use the 
 means which, in the progress of science and improvement, have 
 been shown by experience to be the best for that purpose, if 
 the evidence shows that there are any such — unless it be some 
 recent invention not generally known or unreasonably expen- 
 sive. Whether the defendant's mill did endanger plaintiff's 
 property and whether the defendant had adopted such means 
 as experience had shown were best calculated to lessen the dan- 
 ger, etc., etc., are questions of fact to be determined by the 
 jury from the evidence in the case. 
 
 § 18. Ne/?ligence of County and Towns {By Statiote). — By the 
 statutes of this state, it is made the imperative duty of the board 
 of county commissiuncis, to keep or to cause all the bridges in 
 the county to be kejit in good and safe repair — and if the
 
 NEGLIGENCE GENERALLY. 303 
 
 board of county commissioners negligently suffer a bridge 
 in their county to remain out of repair after notice, etc., and 
 a person in the ordinary use of tlie bridge is thereby injured 
 in person or property, without any fault on his part, he will 
 have an action for damages against the county. House vs. 
 County Corns., 60 Ind., 5S0. 
 
 § 19. Intoxication as Contributory Negligence. — The court in- 
 structs the jury, as a matter of law, that a man cannot vohiu. 
 tarily place himself in a condition, whereby he loses such 
 control of his brain or muscles as a man of ordinary prudence 
 and caution in the full possession of his faculties would exer- 
 cise, and by such loss of control contribute to an injury to 
 himself, and then hold one ignorant of his condition liable in 
 ■damages. And if you believe, from the evidence, that at the 
 time of the alleged injury, the plaintiff was so intoxicated, that 
 he had lost such control of his brain or muscles as an ordinarily 
 prudent and cautious man in the full possession of his faculties 
 would exeicise under similar circumstances, and that the defend- 
 ants were ignorant of such condition, and if you further 
 find, from the evidence, that sucli intoxication contributed to 
 the alleged injury, then the plaintiff cannot recover. Strcmd 
 vs. C (& W. M. By. Co., 34 N. W. Kep., 715.
 
 CHAPTER XXXIII. 
 
 NEGLIGENCE— MUNICIPAL C0RP0EATI0:N'S. 
 
 Sec. 1. Liable for unsafe condition of streets, when. 
 
 2. Duty to k(!ep streets in a reasonably safe condition. 
 
 3. Duty to provide guards and notice. 
 
 4. Street includes sidewalk. 
 
 5. Accident and negligence. 
 
 6. Reasonable care and caution, what. 
 
 7. The care must be proportionate to the known danger. 
 
 8. No liability without negligence. 
 
 9. Sliglit negligence will not prevent recovery. 
 
 10. Streets and walks to be kept reasonably safe. 
 
 11. Negligence of driver. 
 
 12. Not obliged to open streets, etc. 
 
 13. Degree of care required. 
 
 14. Do not insure safety — Not liable for every accident. 
 
 15. Liable for the negligence of others, when. 
 
 16. Not liable for negligence of others, when. 
 
 17. Must have notice of defects, actual or constructive. 
 
 18. Defective sidewalk, notice presumed, when. 
 
 19. Injury to adjoining property, changing grade. 
 
 20. Liable for want of reasonable care only. 
 
 21. Defective plan of public improvement. 
 
 22. Changing watercourse. 
 
 23. Sewer out of repair. 
 
 24. Measure of damages. 
 
 § 1. Liable for Unsafe Condition of Streets, When. — Tlie court 
 instructs tlie jury, that the defendant corporation is bound by 
 hiw to use all reasonable care, caution and supervision to keep 
 its streets, sidewalks and bride^es in a safe condition for travel, 
 in the ordinary modes of traveling, by night as well as by day, 
 and if it fails to do so, it is liable for injuries sustained, incon- 
 sequence of such failure; provided, the party injured is himself 
 exercising reasonable care and caution; and the fact that the 
 plaintiff may, in some way, have contributed to the injury sus- 
 tained by him, will not prevent his recovery if, by oixlinary 
 care, he could not have avoided the consequences to himself 
 or the defendant's negligence. Cooley on Torts, 625; Mayor, 
 
 (364)
 
 NEGLIGENCE. 305 
 
 etc., vs. Didd, 58 Ga., 238; CeniervUle vs. Woods, 57 Ind., 
 192; Rowell vs. Williams, 29 la., 210; St. Paul vs. Kuhj, 
 8 Minn., 154. 
 
 Tf you believe, from the evidence, that tlic corporate author- 
 ities of the city of S. did not exercise all reasonable care and 
 supervision over that portion of the sidewalk wliere the injury 
 in question is alleged to have occurred, to keep it in good and 
 safe condition, and by that means allowed it to become defect- 
 ive and unsafe; and if you further believe, from the evidence, 
 that the ])laintiff, in attempting to walk along that portion of 
 the sidewalk, by reason of such defect was injured, and has 
 sustained damage thereby, as charged in the declaration, and 
 that he was at the time exercising reasonable care and caution 
 to avoid such injury, then the defendant is liable, and you 
 sliould find for the plaintiff. 
 
 § 2. Law Imposes the Duty to Ksep Streets in Reasonably Safe 
 Condition. — The law is, that where the city charter gives the 
 city authorities power to provide for keeping the streets m 
 repair, and to prohibit obstructions therein, then it is the duty 
 of the city authorities to keep the streets and sidewalks in a 
 safe condition for travel, so far as this can be done in the exer- 
 cise of reasonable care and prudence in that respect. Cooley 
 on Torts, 625; The People vs. The Mayor, etc., 03 III, 207; 
 Prideanx vs. Mineral Point, 43 "Wis., 513; Mayor, etc., vs. 
 Qooley, 55 Ga., 17. 
 
 The jury are instructed, as a matter of law, that any person 
 traveling upon a sidewalk of a city, which is in constant use 
 by the public, has a right, when using the same with due dili- 
 gence and care, to presume, and to act upon the prcsumjition, 
 that it is reasonablj' safe for ordinary travel throughout its 
 entire width, and free from all dangerous holes, obstructions 
 or other defects. Indianapolis vs. Gaston, 58 Ind., 224. 
 
 If the jury believe, from the evidence, that the ])laintiflr, 
 while passing along one of the sidewalks in said city, was 
 injured, as alleged in his declaration, and that the injury would 
 not have happened to him if the said sidewalk had been in a 
 reasonably good repair and safe condition, then the defendant 
 is liable ior such injury; provided, the jury believe, from the 
 evidence, that the plaintiff was exercising reasonable care and
 
 366 MUNICIPAL COKrOKATIONS. 
 
 caution to avoid injury while passing over said walk; and that 
 said city did not use reasonable care to keep said sidewalk in 
 safe condition. 
 
 § 3, Duty to Provide Guards and Notice. — The court instructs 
 the jury, that while a city has the right to construct sewers, 
 or other iuiprovements in its streets, yet, when it causes such 
 work to bo done, it is bound to take notice of the character of 
 the work and the condition in which the streets are left, 
 whether safe or dangerous. 
 
 If, in making improvements, 'it becomes necessary to leave 
 dangerous lioles or openings in the street, or to leave piles of 
 dirt, or other obstructions, in the street, in such a way as to 
 render it dangerous for wagons or carriages to pass, then it is 
 the duty of the city to put up guards or notices of some kind, 
 to warn travelers of the dangerous condition of the stret; 
 and if they do not do so, and persons are therebj* injured, 
 while in the exercise of reasonable care and prudence them- 
 selves, the city will be liable for the injuries thus sustained. 
 
 The court instructs the jury, that all incorporated towns, 
 villages and cities, whcthsr incorporated by special charter or 
 under general laws, have the power, and it is their duty, to 
 keep in repair the roads and bridges within their corporate 
 limits, and if injury results to any individual by reason of a 
 neglect of such duty, while he himself is exercising reasonable ' 
 care and prudence to avoid such injury, the cor]wration will 
 be liable in damages. The President^ etc.y vs. Meredith^ 54 
 111., 84. 
 
 § 4. Street Tnoludes Sidewalks. — The jury are instructed, 
 that the streets of a city extend to and include tliat portion 
 thereof occupied and used for sidewalks. In the grant by the 
 legislature of control over the streets of the city, to the city 
 authorities, control over the sidewalks passes to them as a part 
 of the street, and this imposes upon the city authorities the 
 duty of keeping the sidewalks in repair, as a part of the 
 street. City of B. vs. Bay, 42 111., 503. 
 
 § 5. Accident and Negligence. — The court instructs the jury, 
 that if they believe, from the evidence, that the plaintiff was
 
 NEGLIGENCE. 367 
 
 injured and sustained damage, as charged in tlie declaration, 
 and that sncli injury was the combined result of an accident, 
 and of a defect in the walk, and that the damage would not 
 have been sustained but for the defect, although tlie primary 
 cause of tlie injury was a pure accident, still, if the jury fur- 
 ther believe, from the evidence, that the plaintiff was guilty 
 of no fault or negligence, and the accident one which common 
 and ordinary prudence and sagacity, on the part of the plaint- 
 iff, could not have foreseen and provided against, then the 
 city is liable; provided, the jury believe, from the evidence, 
 that the city authorities were guilty of negligence in not 
 remedying such defect. Wilson vs. Atlanta^ 60 Ga,, 473. 
 
 § 6. Reasonable Care and Caution, AVliat. — The jury are fur- 
 ther instructed, that reasonable care and caution required of 
 the plaintiff, as mentioned in these instructions, means that 
 degree of care and caution which might reasonably be ex- 
 pected from an ordinarily prudent person, under tlie circum- 
 stances surrounding the plaintiff at the time of the alleged 
 injury. 
 
 § 7. Care Must be Proportionate to the Known Danger. — If the 
 
 jury believe, from the evidence, that the place where the acci- 
 dent in question occurred, was necessarily more dangerous 
 than the ordinary streets and sidewalks, and that, by the exer- 
 cise of ordinary care and prudence, this condition of things 
 could have been known to the plaintiff, or was known to him, 
 then the plaintiff was required to use more than ordinary care 
 and caution to avoid the accident, and if he failed to do so, 
 and thereby contributed to the injury, he cannot recover in 
 this suit. 
 
 Although the jury may believe, from the evidence, that the 
 city authorities had negh'gentlj^ suffered snow and ice to ac- 
 cumulate on the walk in question, until it was in a dangerous 
 condition for walking, still, if you further believe, from the 
 evidence, that this condition of the walk was known to the 
 plaintiff before he attempted to walk over it, and that he 
 might easily have avoided passing over such dangerous place, 
 then he was not using that reasonable care and prudence to 
 avoid injury which the law requires and he cannot recover in 
 this case. Schaefler vs. Sandusky, 33 Ohio St., 246.
 
 368 MUNICIPAL COEPOEATIONS. 
 
 The jury are instructed that a person has no right to know- 
 ingly expose himself to danger, and then recover dajnages he 
 might have avoided by the use of reasonable precaution ; and 
 if the jury believe, from the evidence, that the plaintiff, before 
 and at the time of the alleged injury, knew of the defect in 
 the sidewalk, and in going to his house on the night of the al- 
 leged injury could have taken another and safe route, of equal? 
 or nearly equal, distance, then the jury have a right to consider 
 his failure to take such other route, if such there was, into 
 consideration in determining whether the plaintiff was, at the 
 time of the injury, exercising due care and caution for his own 
 safety. Toion of iLlkhart vs. Iiltie)\ QQ Ind., 136. 
 
 § 8. No Liability without Negligence. — That munici; al cor- 
 porations, such as the defendant, are only liable for such 
 defects in their sidewalks as are in themselves dangerous or 
 such that a person exercising reasonable care and caution can- 
 not avoid danger in passing over it, if the jury believe, from 
 the evidence, that the defect in the sidewalk in question was 
 not in itself dangerous to the safety of a person passing over 
 it with reasonable care and caution, and that the alleged 
 injury was the result either of a mere accident without negli- 
 gence on the part of defendant, or that it resulted from a 
 want of reasonable care and caution on the part of the plaint- 
 iff, then the jury should find the defendant not guilty. 
 
 The jury are instructed that, in this case, there can be no 
 liability on the part of the defendant, unless there was neglect 
 of duty in respect to the repair of the sidewalk on the ]iart of 
 the officers of the city; and there can be no such neglect of 
 duty, unless the jury find from the evidence that the officers 
 of the city knew of the defect in the sidewalk complained of, 
 or with reasonable diligence could have known of it, long 
 enough before the accident occurred, to have had it repaired. 
 Sheil et al. vs. The City of Aj>phton, 49 Wis., 125. 
 
 It was the duty of the defendant city to keep and maintain 
 its streets and sidewalks in good order and repair, for the use 
 and convenience of the traveling public walking and passing 
 thereon, so far as this could be done by the exercise of all rea- 
 sonable care and oversight on the part of its officers. And if 
 the jury believe, from the evidence, that the sidewalk at the
 
 NEGLIGENCE. 369 
 
 time and place in question was out of repair and in a danger- 
 ous condition and that tlie city authorities knew of the defect, 
 or by the exercise of reasonable care might have known of it 
 in time to have remedied the defect before the accident in ques- 
 tion, and did not do so, then the city is liable in this suit, pro- 
 vided the jury further believe, from the evidence, that the 
 plaintiff was injured and suffered damage by reason of the 
 defective walk, as chai-gcd in the declaration, and that he was 
 himself in the exercise of ordinary care to avoid the injury. 
 
 § 9. Slight Negligence will not Defeat Recovery. — That a 
 traveler on a public street is held to tlie exercise of only ordi- 
 nary care. Slight negligence, which is a want of extraordi- 
 nary care, will not defeat a recovery for an injury, received in 
 consequence of a defect in the street; provided, the evidence 
 shows that the city authorities were guilty of negligence, in 
 permitting the defect to exist in the street, and that tlie 
 traveler was injured thereby, and was using ordinary care to 
 avoid the injury. Gu-fflii vs. The Town of Willow^ 43 Wis., 
 509. 
 
 § 10. Streets and Walks to be Kept Reasonably Safe. — The 
 court instructs the jury, as a matter of law, that a citj' is not 
 required to have its sidewalks so constructed {oi' kept in such 
 conditioji) as to secure immunity in using them; nor is it bound 
 to employ the utmost care and exertion to that end. Its duty, 
 under the law, is only to see that its sidewalks are reasonably 
 safe for persons exercising ordinary care and caution. 
 
 And in this case, if the jury believe, from the evidence, that 
 the sidewalk was so constructed as to be sufliciently level and 
 smooth for ordinary travel, and so built that it would not, by 
 reason of any peculiarities of its construction, cause snow or 
 ice to accumulate thereon, and that the accident was attribu- 
 table solely to the slippery condition of the sidewalk, occa- 
 sioned by a recent fall of snow, and that the sole cause of the 
 accident was the temp.orary slipperiness of that part of the 
 sidewalk caused by the recunt fall of snow thereon, such a con- 
 dition of the sidewalk would not be a defect for which the 
 city would be liable. City of Chicago vs. McGiven^ 78 Dl., 
 347. 
 
 24
 
 370 MUNICIPAL COKPORATIONS. 
 
 § 11. Negligence of Driver. — The law is, that the driver of 
 a private conveyance is the agent or servant of the person 
 riding in such conveyance, provided such driver is employed 
 by him or subject to his control, and if such person, while 
 riding along a public highway or street, is injured, in conse- 
 quence of obstruction or defects negligently permitted to re- 
 main in the street or highwaj^, and the driver is guilty of a 
 want of ordinary care and caution, and his negligence materi- 
 ally contributes to such injury, then the person injured cannot 
 recover, as against the city, for the injury thus received. 
 Prideaux vs. Mineral Pointy 43 Wis., 513; Red. Car., § 361; 
 Lockhart vs. Lichtenthaler, 46 Penn. St., 151. 
 
 § 12. Not Obliged to Open Streets. — The court instructs the 
 jury, that cities are under no legal obligation to open up 
 streets for the use of the public. The legal obligation of 
 a city to repair streets, sidewalks and bridges within its cor- 
 porate limits, only relates to such as are opened or constructed 
 under its authority, or those which its officers have assumed 
 control over. Craig vs. Sedalia, 63 Mo., 417; Shear. & Eed. 
 on Neg., § 127; Wilso7i vs. The- Mayor, etc., 1 Denio, 595; 
 Joliet vs. Verleij, 35 111., 58. 
 
 There is no legal obligation resting upon a city to build 
 sidewalks, construct gutters or pave streets, but when the 
 city does make these improvements for the benefit of the 
 ])ublic, it then becomes its duty to use all reasonable care and 
 exertions to keep them in repair. City of Alton vs. Ilojpe, 
 68 111., 167. 
 
 § 13. Degree of Care Required.— The jury are instructed, 
 that the defendant is not bound to any greater degree of care 
 and diligence than is sufficient to keep its streets and side- 
 walks in a reasonably safe condition, and if any accident occurs 
 when they are in such reasonably safe condition, the defend- 
 ant is not liable for such accident. 
 
 § 14. Do not Insure Safety. — The jury are instructed, that 
 a municipal corporation is not liable for every accident 
 that may occur from defects in its sidewalks or streets. Its 
 officers are not required to do everything that human energy
 
 NEGLIGENCE. 371 
 
 and ingenuity can possibly do to prevent the happening of 
 accidents or injury to the citizen. If they have exercised a 
 reasonable care in that regard, they have discharged their 
 duty to the public. City of Centralia vs. Krouse^ 6-i 111., 19. 
 
 The city is not an insurer or a warrantor of the condi- 
 tion of lier streets and sidewalks; nor is every defect therein 
 actionable, though it may cause the injury sued for. It is suf- 
 ficient to relieve the city from liability in this case if you find 
 from the evidence that the street (or walk) was in a reasonably 
 safe condition for travel at the time the accident is alleged to 
 have occurred. 
 
 If you believe, from the evidence, that at the place where 
 the plaintiff met with the injury complained of, the street (or 
 sidewalk) was at the time in a reasonably safe condition, your 
 verdict should be for the defendant. City of Ind. vs. Gas- 
 ton, 28 Ind., 22i. 
 
 § 15. Liable for Negligence of Others, When. — Although tlie 
 jury may believe, from the evidence, that the sidewalk in 
 question was constructed by a private person, and not under 
 the direction or supervision of the city, still this would not 
 exempt the city from liability from defects in the walk; ]iro- 
 vided, the jury believe, from the evidence, that the walk was 
 so constructed as to be dangerous for ordinary travel, and 
 that this defect was known to the ofhcei's of the city, or 
 that by the exercise of ordinary care they might have known 
 of such defect in time to have remedied it before the accident. 
 Bai'iies vs. TJie Toion of Ifeioton, 46 la., 567; Cooley on 
 Torts, 626 ; Wendell vs. Troy, 39 Barb., 329 ; Shear. & Red. 
 on Neg., § 147; Centerville vs. Woods, 57 Ind., 192 ; Phelps 
 vs. Manlato, 23 Minn., 276. 
 
 It is the duty of the city to use all reasonable care and vigi- 
 lance in the selection of agents, servants and contractors, in 
 making improvements, and to retain control and superintend- 
 ence over them in the performance of their duties, and to 
 enforce such ineasures of care and vigilance as will guard the 
 public against exposure to injury, so far as this can reasonably 
 be done. 
 
 The court instructs the jury, as a matter of law, that where 
 work is done upon the streets of a city, there is a reasonable pre-
 
 372 MUNICIPAL COEPOEATIONS. 
 
 sumption that it is done by the proper authorities of the city, 
 and in a suit to recover damages for an injury occasioned by 
 the negligent manner of doing such work, it is not necessary, 
 in the first instance, to jirove that it was done by persons em- 
 ployed by the city, as this will be presumed, unless the con- 
 trary appears from the evidence. 
 
 And, in this case, if the jury believe, from the evidence, 
 that the injury complained of was caused by a dangerous {pile 
 of dirt or opening), left in the street in question by persons 
 employed by the city, to place a sewer or water pipe in such 
 street, then the jury are instructed, that it is not necessary for 
 the plaintiff, in order to recover in this suit, to prove that the 
 city authorities had actual notice tliat such * * * was 
 left in said street; provided, the jury further believe, from 
 the evidence, that such work was done under the supervision 
 of the {street commissioner^ etc). City of Chicago vs. Brophy, 
 79 111., 27T. 
 
 If the jury believe, from the evidence, that the defendant 
 let out the job of filling up and grading {Main street) to other 
 persons, at so much per yard, the grading to be done un-der 
 the supervision of defendant's engineer, and that such engineer 
 went upon the ground with such other persons, and pointed 
 out to them where to take the soil from and where to ])ut it, 
 and such other persons did the work as directed by the engineer, 
 then the law is, that the relation of master and servant existed 
 between the city, the engineer and such other persons doing 
 the work, and the city is liable in all respects, the same as if 
 it had done the work by men employed by it in any other way. 
 Nevins vs. City of Peoria, 41 111., 502. 
 
 The jury are instructed, that if the city authoritic-s know- 
 ingly permit a person to occupy or obstruct a street, it is the 
 duty of such authorities to use all reasonable care and precau- 
 tions to see that the person so permitted properly guards and 
 protects such obstructions, and if the city authorities negli- 
 gently fail to perform such duty, the city will be liabiC to one 
 who is injured by such obstructions, if he is himself, at the 
 time, using reasonable care to avoid the injury. Whether, in 
 this case, the city authorities did know, etc., etc., are ques- 
 tions of fact for the jury, to be determined by the evidence- 
 City of Ind. vs. Doherty, 71 Ind., 5.
 
 NEGLIGENCE. 373 
 
 The defendant liad a riglit to construct water works for 
 municipal purposes, and for the use of the inhabitants of the 
 city, and for that purpose to lay pipes in the street, and to 
 permit others to do so, and the city is liable for any damage 
 sustained by a person while traveling in the street, by reason 
 of such work being done, unless tlie city authorities, or the 
 persons doing the work, wore guilty of negligence which occa- 
 sioned the injury, and while the party injured was himself 
 using reasonable care and caution to avoid the injury. City 
 of Logansport vs. DicJcs, 70 Ind., 65. 
 
 Although the jury may believe, from the evidence, that the 
 city officers had contracted with, etc., for the laying of the 
 water pipes in the street, still the city, notwithstanding such 
 contract, was charged with the duty of taking all reasonaljle 
 precaution to keep the street in a safe condition, for use in the 
 usual manner, so far as this could reasonably be done, while 
 the work was progressing, and if you believe, from the evi- 
 dence, that the city officers did not do this but were guilty of 
 negligence in permitting a dangerous, etc., and that the plaint- 
 iff was thereby injured, as alleged in his complaint, then the 
 city is liable for such iiijiny, provided the jury believe, from 
 the evidence, that the plaintiff was himself, etc. City of 
 Logansport vs. Dloks^ 70 Ind., 65; Butler vs. Bangor^ 67 
 Me., 385. 
 
 * 
 
 § 16. Not Liable for the Negligence of Othei-s, When. — The 
 
 jury are instructed, that when a party, without the consent of 
 the authorities of an incorporated town, digs or leaves open a 
 dangerous hole or pit in the street, and a person is thereby 
 injured, the town will not be liable for such injury, unless the 
 authorities have actual notice of the nuisance, or it has re- 
 mained a sufficient time, so that in the exercise of ordinary 
 care and diligence they ought to have had notice of the dan- 
 gerous condition of the street. Fahey vs. The President^ 
 etc., 62 111., 28. 
 
 The jury are instructed, that when the duty is imposed by 
 law upon a city corporation to keep its streets in safe condition, 
 for use by the public, the duty cannot be shifted off upon a 
 person employed by the city to perform it; and if an injury 
 results from the negligence of such person in the performance
 
 374 MUNICIPAL COEPOEATIONS. 
 
 of such duty, the corporation will be liable for the damage. 
 The City of Springfield vs. Le Claire, 49 111., 476. 
 
 The jury are instructed, that when a dangerous place is 
 made in the street by the unlawful act of third parties, un- 
 known or without the knowledge or consent of the city 
 authorities, the city cannot be deemed negligent until knowl- 
 edge or notice of such defect is brought home to the officers 
 of the city, unless the dangerous place has existed for such a 
 length of time before the injury, that the city authorities, in 
 the exercise of reasonable care and diligence, might, and ought 
 to have known of its existence. 
 
 The court instructs the jury, that when an act is done which 
 is unlawful in itself, such as j)lacin;j, cin obstruction in a public 
 street, which detracts from the safety of travelers, the author 
 will be held liable for an injury resulting from the act, although 
 other causes subsequently arising may contribute to the 
 injury. Welch vs. Lander^ 75 111., 93. 
 
 § 17. Miist Have Notice, Actual or Instructive. — If the jury 
 believe, from the evidence, that the sidewalk in which the 
 defect is alleged to have been, and where the plaintiff is alleged 
 to have been injured, was properly and safely constructed and 
 laid down, and that prior, and up to, or about the time of the 
 injury, it appeared to be in a pro]")er and safe condition, then, 
 if there be no evidence that the defendant had actual knowl- 
 edge of such defect, or that the defect existed for such length of 
 time before the in'ury, that the defendant, if exercising proper 
 care and di'igence, would have known of it, the jury should 
 lind the defendant not guilty. Schvjeicl'hardt vs. St. Louis, 2 
 Mo. App., 571; Ilutchins vs. Littleton., 124 Mass., 289; Chicago 
 vs. Stearns., 105 111., 554; Ilearn vs. Chicago., 20 111. App., 249. 
 
 Notwithstanding the jury may believe, from the evidence, 
 that the sidewa'k, at the time of the alleged injury, was de- 
 fective, yet this alone would not be sufficient evidence of negli- 
 gence on the part of the defendant. In order to charge tlie 
 defendant with negligence, it must appear, from the evidence, 
 not only that the sidewalk was defective at tlie time of tie 
 alleged injury, but it must further aj^pear that such defect was 
 actually known to the city through some of its otHcers, agents 
 or servants, or that the defect had existed for such a length of
 
 NEGLIGENCE. 375 
 
 time prior to the alleged injury, that tlu city, if exercising 
 ordinary diligence, would or should have known of the defect. 
 The City of Chicago vs. McCarthij, 75 111., 602; Bartlett vs. 
 Kitterij^ OS Me., 358. 
 
 A city is bound only to the exercise of reasonable prudence 
 and diligence in the construction of its sidewalks, and is not 
 required to foresee and provide against every possible danger 
 or accident that may occur. 
 
 It is only required to keep its sti-eets and sidewalks in a 
 reasonably safe condition, and it is not an insurer against acci- 
 dents. City of Chicago vs. Bixby, 84 111., 82. 
 
 § 18. Defective Sidewalk — Notice Presumed, When. — The court 
 instructs the jury, that when the sidewalk of a city is out of 
 repair, and remains so for such a length of time that the public 
 authorities of the city, in the exercise of reasonable care and 
 prudence, ought to have discovered the fact, then actual notice 
 to such authorities of the condition of the walk will not be 
 necessary to hold the city liable for injury sustained by a per- 
 son, in consequence of the dangerous condition of the street 
 if he is himself using reasonable care to avoid such injury 
 Shear. & Eed. Neg., § 148; 3Iayor vs. Sheffield, 4 Wall., 189 
 City of Sj)ringfeld y&. Doyle^ 76 111., 2n2; SchweieMa;rdtv&: 
 Si. Louis, 2 Mo. App., 571; Hume vs. N. Y., 74 N. Y., 264; 
 Albrittian vs. Iluntsville, 60 Ala., 480; Chicago vs. Dale, 115 
 111., 386. 
 
 The jury are instructed, that the defendant is bound to use 
 reasonable care and precaution to keep and maintain its streets 
 and sidewalks in good and sufficient repair, to render them 
 reasonably safe, for all ])ersons pas-ing on or over the same; 
 and if the jury believe, from the evidence, that the defendant 
 failed to use all reasonable care and precaution to keep its 
 sidewalk in such repair, and that the injury comi)lained of re- 
 sulted from that cause, as charged in the declaration, and that 
 the plaintiff sustained damage thereby, without negligence or 
 want of care on plaintiff's part, then lie is entitled to recover 
 in this suit. Chicago vs. Dale, 115 111., 386; Dillon on Munic- 
 ipal Corporations, § 996 et seg. 
 
 § 19. Injury to Adjoining Property — Changins: Giade. — The
 
 376 MUNICIPAL COEPOEATIONS. 
 
 jury are instructed, that a municipal corporation, while acting 
 within the scope of its authority, in making excavations in a 
 street, for the inirpose of opening it or improving it, if using 
 reasonable care and skill in performing the work, is not liable 
 to a lot owner for an injury resulting therefrom to his lot or 
 the buildings thereon. Shear. & Red. on Neg., § 129; City of 
 Quincy vs. Jones, 76 111., 231; Pontiao vs. Carter, 32 Mich., 
 164; Wegmann vs. Jefferson, 61 Mo., 55. 
 
 The jury are instructed, that while the corporate authorities 
 of cities are vested with power to grade their streets, yet the 
 mode in which the power is to be exercised, in reference to 
 the rights of others in the enjoyment of their property, is 
 limited in the same way and to the same extent as the power 
 of a private person in the use of his property, and if the au- 
 thorities of a city in altering or changing the grade of the 
 streets, do not do the work in good faith and with reasonable 
 care and skill, to avoid damaging the adjoining pro].erty 
 owners, the city will be liable to such owners for all damage 
 directly resulting therefrom. 2 Dil. on Corp., § 783; Callen- 
 der vs. Marsh, 1 Pick., 418; Hadcliff's Executors vs. Mayor, 
 etc., 4 Comst., 195; Delphi vs. Evans, 36 Ind., 90: Reading 
 vs. Kejypleman, 61 Penn. St., 233; Hendershott vs. Oitityyiwa, 
 46 la., 658; Mayor, etc., vs. Hill, 58 Ga., 595; City of B. vs. 
 Brolaw, 77 111., 195; Shear. & Redfld. Neg., § 144. 
 
 § 20. Liable for Want of Reasonable Care Only. — The jury 
 are instructed, that a city has full control over the grades of 
 its streets, and may lower or elevate them at will, and the 
 owner of lots adjacent to the street cannot call it to accoimt 
 for erj-or in judgment, in fixing the grade, nor recover dam- 
 ages for inconvenience or expense incurred in adjusting their 
 premises to the grade of the street, provided, the city author- 
 ities exercise reasonable care and skill in the performance of 
 this work. 
 
 That the authorities of a city have a right to alter the grades 
 of the streets at tlieir discretion, and if this is done with rea- 
 sonable care and skill, no liability arises from their acts. 
 Neither courts nor juries can inquire whether tlie grade 
 adopted is the best one or not, and, in this case, the only ques- 
 tion for the jury is whether, in doing the work in question,
 
 NEGLIGENCE. 377 
 
 the city officers acted in good faith, and with reasonable care 
 and skill, to avoid damage to the plaintiff's property. Lee vs. 
 The C Hi/ of Minn., 22 Minn., 13; Detroit vs. Bechnan, M 
 Mich., 12.5; Cheever vs. Ladd, 13 Blatchf., 258; Tate vs. Mo., 
 etc., Ed. Co., 64 Mo., 149. 
 
 Contra: The jury are instructed, that the owner of a lot 
 abutting on an unimproved street, or where no grade has been 
 established by the city authorities, erecting a building thereon, 
 assumes the risk of all damage which may result from the city 
 subsequently establishing a grade, and improving the street to 
 conform to such grade. The liabiHty of the city for injuries 
 to a building abutting on a street by the grading of the street, 
 only exists when the building was erected. 
 
 If the jury believe, from the evidence, that the city, in im- 
 • proving {Main street) in said city, fixed the grade and caused 
 to be constructed sewers and drains in said street, to carry off 
 the surplus water which necessarily, in case of rains, would 
 run down said street, by reason of said grading, and that, on or 
 about, etc., there came a rain, and said sewers or drains were 
 stopped up, or were otherwise defective, so that they would 
 not carry off the surplus water, and thereby the water from 
 said rain was forced into the basement of the plaintiff's build- 
 ing, and the plaintiff thereby damaged, then the jury should 
 find for the plaintiff to the amount which the proof shows 
 such damage to be. 
 
 The jury are instructed, that the city of has control of 
 
 all streets and sidewalks in said city; and if the jury believe, 
 from the evidence, that the sidewalk or street, in front of 
 plaintiff's premises, pitched toward his lot, and was permitted 
 so to be constructed by said city, or was permitted by said city 
 so to remain after being so built by others, after a reasonable 
 time in which to have changed it, then the city cannot shield 
 itself from liability for flooding plaintifl"'s premises, if the evi- 
 dence shows they were so flooded, on account of the pitch of 
 said street or sidewalk. Citij of Aurora vs. Gillet, 56 111., 
 132. 
 
 § 21. Defective Plan of Public Improvement. — The jury are 
 instructed, that a city cannot be made liable for injuries to 
 persons or property which arise from a defective plan of a
 
 3TS MUNICIPAL COKPOKATIOXS. 
 
 public improvement, altliongli tlie citj may bo liable for want of 
 reasonable care or skill in the execution of the work itself; and 
 although the jury may believe, from the evidence, that the plan 
 adopted by the city for draining the streets, was defective and 
 unskillful, and likely to result in injury to, etc., still the city 
 would not be liable for any injuries resulting from such defect 
 or want of skill in the plan adopted, provided the city was not 
 guilty of negligence or want of reasonable care and skill in 
 doing the work necessary to carry out the plan. Lansing vs. 
 Toolan, 37 Mich., 152; Detroit vs. Becl^man, 3i Mich., 125; 
 Darling vs. Daigor, 68 Me., 108; Dever vs. Ca-peUi, 4 Col., 
 25. 
 
 If the jury believe, from the evidence, that the city authori- 
 ties before the erection of the building in question, had so im- 
 proved and appropriated the street to ]mblic use as to fairly 
 and reasonably indicate to the public that the grade of the 
 street had been permanently fixed and that no change therein 
 would be made, and that the plaintiff or his grantor, relying 
 on such corporate acts as a final decision as to the wants of the 
 public regarding the grade of such streets, erected the build- 
 ing in conformity to such grade, then, if the jury further be- 
 lieve, from the evidence, that by the recent improvement and 
 change of grade of said street the plaintift''s building and 
 other improvements connected there witli have been injui-ed and 
 the plaintiff thereby damaged, then the defendant is liable 
 therefor. Cincinnati vs. Penny^ 21 Ohio St., 499; Mayer^ 
 etc., vs. mchol, 59 Tenn., 338; Elgin vs. Eat07i, 83 111., 535; 
 French vs. Milwaukee^ 49 Wis., 5S4; Dore vs. Milwaukee^ 
 42 Wis., 108. 
 
 § 22. Clianging Watorcoursesi. — The court instructs the jury, 
 that if a city, in exercising its power of changing the grade 
 of its streets, fails to exercise reasonable prudence and skill, 
 it will be liable for all damages that result from such failure. 
 
 And if a city, in fixing the grade of a street, or in after- 
 wards changing it, flows water uj)on a lot that it did not nat- 
 urally carry off, the city will be liable for damages, if any 
 are caused thereby, Ashley vs. Fort Ilnron^ 35 Mich., 2 6; 
 City of B. vs. Brokaw^ 77 111., 194; Kohs vs. Mlnnea., 22 
 Minn., 159.
 
 NEGLIGENCE. ST9 
 
 The court further instructs the jury, that a city has no more 
 power over its streets than a private person has over his own 
 land. A city has no right to turn surface water onto private 
 property, and if a city, in fixing the grade of a street, turns a 
 stream of water and mud onto the ground or into the cellar 
 of a citizen, or creates in his neighborhood a stagnant pool, 
 likely to generate disease, the city will be liable in damages, 
 the same as an individual would for doing the same thin";. 
 City of Aurora vs. Heed, 57 111., 29. 
 
 § 23. Sewer out of Repair. — The jury are instructed, as a 
 matter of law, that the city is under no legal obligation to 
 construct drains or sewers in any particular portion of the 
 city, but, if it does build drains or sewers for corporate pur- 
 poses, it is bound to exercise reasonable care and oversight 
 over them to keep them unobstructed and in repair, so that 
 adjoining proi)erty owners shall not be unnecestjarily injured 
 thereby. And in this case, if the jury believe, from tlio evi- 
 dence, that the city either built the sewer in question or has 
 adopted and controlled it as a part of the general sewerage of 
 the city, then the city was bound to use all reasonable and 
 ordinary care and supervision over it to keep it in such a 
 state of repair as that it should do no unnecessary injury to 
 plaintili's property ; and if you further believe, from the evi- 
 dence, that the city authorities did not exercise reasonable and 
 ordinary care and supervision over the said drain or sewer to 
 keup it in repair, but carele-sly and negligently permitted it to " 
 become choked up and out of repair, and that plaintiff's property 
 has been damaged thereby, as charged in his complaint, then the 
 city is liable for such damages, and the jury should find for 
 the plaintiflF, provided you further find, from the evidence, 
 that he was guilty of no fault or negligence which contributed 
 to such injury. City of South Bend vs. Paxon^ 67 Ind., 228. 
 
 § 24. Measure of Damages. — If the jury believe, from the 
 evidence, that the plaintiff was injured by reason of the de- 
 fendant negligently failing to keep its sidewalk in reasonably 
 good repair, or negligently allowing the same to remain in an 
 unsafe condition, as explained in these instructions, and with- 
 out fault on his part, and that he has sustained damage, then
 
 380 MUNICIPAL CORPOKATIONS. 
 
 tlie jury have a right to find for him such an amount of dam- 
 ages as the jury believe, from the evidence, will compensate 
 him for the personal injury so received, and for his loss of 
 time in endeavoring to be cured, and his expenses, necessarily 
 incurred in respect thereto, if any such loss or expenses have 
 been proved; and also for the pain and suffering undergone 
 by him, and any permanent injury, if any such has been proved.
 
 CHAPTER XXXIV. 
 
 NEGLIGENCE— RAILKOADS. 
 
 Sec. 1. Duty to furnish safe machinery, etc. 
 
 2. Liable for the acts of their servants, when. 
 
 3. Negligrence 2)er se. 
 
 4. Plaintiff must exercise ordinary care. 
 
 5. Right to prescribe rules. 
 
 6. Expelling' a person from the cars. 
 
 7. Passengers can only be put off at a station. 
 
 8. Injuries to persons. 
 
 FENCING THE TKACK. 
 
 9. Failure to comply with the law, negligence per se. 
 
 10. Fencing the track — Statutory provisions. 
 
 11. Company must exercise reasonable care. 
 
 12. Company held only for reasonable care — Casual breach in fence. 
 
 13. Stock unlawfully running at large. 
 
 14. Obligation to fence not limited to adjoining owner. 
 
 15. Cattle guards. 
 
 16. Plaintiff's contributory negligence. 
 
 17. Stock escaping and running at large. 
 
 18. What plaintiff must prove to recover. 
 
 INJUKIES BY FIRE. 
 
 19. Prima facie negligence. 
 
 20. Reasonable care required to prevent the spread of fire. 
 
 21. Must provide the most approved apparatus to prevent the spread 
 
 of fire. 
 
 22. Dry weeds and grass, accumulating along right of way. 
 
 23. Degree of care required of land owner. 
 
 24. Reasonable care and diligence only required of the company. 
 
 COLLISIONS AT HIGHWAY CEOSSINGS. 
 
 25. Crossings must be put in safe condition. 
 
 26. Reasonable care required at crossings. 
 
 27. Negligence by driver. 
 
 28. Signals to be given at crossings. 
 
 29. Rights and liabilities of companies and travelers, equal and 
 
 mutual. 
 
 30. Company not to suffer tall weeds or brush to obstruct the view. 
 
 (381)
 
 382 NEGLIGENCE. 
 
 31. Care required of travelers. 
 
 32. Care to be proportioned to known danger. 
 
 33. Contributory negligence — Gross negligence. 
 
 34. Negligence per se, in traveler. 
 
 35. Conduct in presence of sudden danger. 
 
 36. Danger must be the result of the negligence charged. 
 
 37. Injury to stock at crossing. 
 
 38. Neglect to ring the bell. 
 
 39. Burden of proof as to ringing the bell. 
 
 40. Must exercise reasonable care and watchfulness to avoid injuring 
 
 stock. 
 
 41 . Speed through cities and villages. 
 
 42. Speed not limited by ordinance, 
 
 CHILDREN. 
 
 43. Rules as to children — Contributory negligence. 
 
 44. Negligence as regards children. 
 
 SERVANTS. 
 
 45. Master and servant — Master liable to servf.nt, when. 
 
 46. Duty towards employes. 
 
 47. Servant does not take the risk of dangers not incident to the 
 
 business, 
 
 48. Servant not bound to inquire whether the road is safely con- 
 
 structed, etc. 
 
 49. Negligence of the company in employing servant. 
 
 60. Reasonable care only required for the safety of employes. 
 
 51. PJmploye assumes all ordinary risks. 
 
 52. Servant having knowledge of defects. 
 
 53. Servant must use reasonable care and caution. 
 
 54. Negligence of fellow servant. 
 
 55. Fellow servants defined. 
 
 56. Duty to make rules for the safety of servants, 
 
 § 1. Duty to Furnish Safe Machinery. — The court instructs 
 the jury, that it is the duty of railroad companies to. use all 
 reasonable means and efforts to furnish good and well con- 
 structed machinery, adapted to the purposes of its use, of good 
 material, and of the kind that is found to be safest when ap- 
 plied to use; and while they are not required to seek and 
 apply every new invention, they mustadopt such as are found, 
 by experience, to combine the greatest safety with practical 
 nse. Si. Louis, etc., Rd. Co. vs, Yalirius. 56 Ind., 511; 
 Wedgewood vs. Chicago, etc., Ed. Co., 41 "Wis., 478; Pitts- 
 burgh R. R. Co. vs. Nelson, 51 Ind., 150; Porter vs. Hanni- 
 bal, etc., Rd. Co., 60 Mo., 160; T., W. <& W. Ry. vs. Freder- 
 icls, 71 111., 294.
 
 EAILKOADS. 383 
 
 § 2. Liable for the Torts of their Servants, Wlien. — Eaihoad 
 companies are responsible to passengers for the unlawful acts 
 of their servants and agents employed in running their trains, 
 when such wrongful acts are committed in connection with 
 the business intrusted to them, and spring from, or grow im- 
 mediately out of, such business. Gasway vs. Atlanta, etc., 
 Rd. Co., 58 Ga., 216; Bass vs. Chicago, etc., Rd. Co., 42 Wis., 
 654; Brown vs. Hannibal, etc., Rd. Co., 66 Mo., 588. 
 
 You are instructed, that if the servants of a railroad com- 
 pany, while in the discharge of their duties, pervert the appli- 
 ances of the company to wanton or malicious purposes, to the 
 injury of others, the company is liable for such injuries. C, 
 B. & Q. Rd. Co. vs. Diclson, 63 111., 151. 
 
 § 3. Negligence, per se. — The court instructs the jury, that 
 it is negligent for persons engaged in using cars on a railroad 
 track to put a car in motion where it may do injury to others, 
 without making any provision for stopping it, or examining 
 to see whether any person is on or about other cars on .the 
 same track, with which the one put in motion may collide; 
 and if injury results therefrom to one who is guilty of no neg- 
 ligence himself, he will be entitled to recover for such injury. 
 Nohle vs. Cunningham, 74 111., 51; Qiiackenhush vs. Chi. <& 
 If. W. R. R. Co., 35 N. W. Eep., 523. 
 
 § 4. Plaintiff Must Exercise Ordinary Care. — The court in- 
 sti'ucts the jury, that in an action against a railroad company 
 to recover for injuries occasioned by the alleged negligence 
 of the company, in running its train, although the servants of 
 the com])any may have been guilty of negligence, contribut- 
 ing to the injury complained of, still, if the plaintiff could, by 
 the exercise of ordinary care and prudence, have avoided the 
 injury, he cannot recover. Chi. da Alto7i Rd. Co. vs. Jacobs, 
 63 III, ITS. 
 
 The court further instructs you, that to authorize a re- 
 covery for injuries done by a railroad company, it is not 
 enough to show the company guilty of negligence, but it 
 must appear, from the evidence, that the injured party em- 
 ployed all reasonable means to foresee and prevent the injury, 
 or else it must appear, from the evidence, that the injury was
 
 384 KEGLIGE^^CE. 
 
 caused by the willful or wantonly reclcless acts of the servants 
 of the company. Wharton on Neg., § 300. 
 
 If you believe, from the evidence, that the defendant was 
 guilty of negligence, as charged in the declaration, and that the 
 plaintiff waa injured thereby, and that the plaintiff w^as him- 
 self guilty of some slight degree of negligence, this would not 
 alone prevent a recovery, provided the jury further believe, 
 from the evidence, that the act of defendant which caused the 
 injury was done by tha defendant after discovering the plaint- 
 iff's negligence and that the defendant could have avoided the 
 injury by the exercise of reasonable care. Morris vs. The 
 Chicago,etc.,A^ la., 29; 27 Conn., 393; 50 Mo., 464; 18 Ga., 699. 
 
 § 5. Right to Prescribe Rules. — The jury are instructed, that 
 a railroad company has a right to require of its passengers the 
 observance of all reasonable rules, calculated to insure the 
 comfort, convenience, good order and behavior of all persons 
 on the train, and to secure the proper conduct of its business; 
 and if a passenger wantonly disregards any such reasonable 
 rule, the obligation to carry him farther ceases, and the com- 
 pany may expel him from the train at any regular station 
 using no more force than may be necessary for that purpose 
 JSandford vs. Eighth Ave., etc., lid. Co., 23 K Y., 343; I. C. 
 Rd. Co. vs. Whiiinore, 43 111., 420; Crauiford ys. Cincinnati, 
 etc., Rd. Co., 26 Ohio St., 580; State vs. Chovin, 7 la., 204; 
 Shelton vs. Lalce Shore, etc., Rd. Co., 29 Ohio St., 214. 
 
 The court further instructs you, that whatever rules tend to 
 the comfort, order and safety of the passengers on a railroad, 
 the companies are authorized to make and enforce; but such 
 rules nuist be reasonable and uniform. A rule setting apart a 
 car for the exclusive use of ladies, and genHemen accom)ianied 
 by ladies, is a reasonable rule, and it may be enforced. C. & 
 if. TF. Rd. Co. vs. Williams, 55 111., 185; Bass vs. Chi. c& N. 
 W. Rd. Co., 36 Wis., 450; Com. vs. Power, 7 Met., 596. 
 
 A railroad company has the lawful right to make all rea- 
 sonably necessary rules for the conduct of its employes, and 
 also of its passengers. 
 
 And whether such rules are adequate to secure the safety 
 of others, and the safe management of its trains, is a question 
 of fact for the jury. C, B. & Q. R. R. Co. vs. McZallen, 
 84 111., 109; Stone vs. C, etc., Rd. Co, 47 la., 82.
 
 RAILROADS. 385 
 
 The court further instructs 3'ou, tliat the use of grossly pro- 
 fane and abusive or obscene language, by a passenger in a 
 railway car where there are ladies, is such a breach of deco- 
 rum, no matter if it is provoked, as will work a forfeiture of 
 his right to be carried as a passenger, and the conductor has a 
 right to cause him to be expelled from the cars, using no more 
 force than is necessary for that purpose. (7., B. cfe Q. R. R. 
 Co. vs. Griffin^ 68 111., 499; Redfld. on Car., § 459; Yinton vs. 
 Middlesex, 11 Allen, 304. 
 
 A railroad company has a right to prescribe reasonable 
 rules for the government of its employes in the conduct of 
 its business ujion its trains, and passengers may be required to 
 conform to such rules, and a rule requiring a conductor to 
 eject from the train a passenger who refuses to produce a 
 ticket or pay his fare on demand is a reasonable one. Whether, 
 in this case, the defendant had such a rule and whether the 
 plaintiff did refuse to produce a ticket or pay his fare on de- 
 mand, etc., etc., are all questions of fact to be determined by 
 the jury by a preponderance of the evidence. Crawfoi'd vs. 
 Rd. Co., 26 Ohio St., 580; Toledo, W. & W. Rd. Co. vs. Wright, 
 68 Ind., 586. 
 
 A railroad company may refuse to receive as a passenger, a 
 person who is so intoxicated as to be disgusting, offensive, dis- 
 agreeable or annoying to the other passengers, generally, so 
 long as he continues in that condition, though he may have 
 purchased a ticket — though aslight intoxication, such as would 
 not seriously affect the conduct of the passenger, would not 
 justify a railroad company in refusing to receive and carry one 
 as a passenger who had purchased his ticket. Pittsburg, etc., 
 Rd. Co. vs. Van Dyne, 57 Ind., 576. 
 
 § 6. Expelling a Person from the Cars. — The jury are in- 
 structed, that if the conductor, or other person in charge of 
 a train of cars, attempts to expel a person, who, by the rules 
 of the company, has no right to ride thereon, he must use no 
 more force than is necessary to accomplish that purpose ; and 
 if he does use more force than is necessary, and the person so 
 put off is thereby injured, the company will be liable. 
 
 If a person gets on a railroad car, in order to ride without 
 payment of fare and without the consent of the persons in 
 25
 
 386 KEGLIGElN'CE. 
 
 charge of tlie train, lie may be ejected from the cars, pru- 
 dently, and in such a manner as not unnecessarily to endanger 
 his personal safety ; but if reasonable care and ])rudence are 
 not exercised, and the person is thereby injured, the company 
 will be liable, and it cannot excuse itself upon the ground that 
 the wrong was mutual. Breen vs. Tex. & P. Rd. Co., 50 
 Tex., 43. 
 
 You are further instructed, that to render a railroad com- 
 pany liable for injuries resulting from an expulsion from one 
 of its cars, it is not incumbent on the person injured to show 
 that actual force or violence were resorted to or used upon 
 his person. If you believe, from the evidence, that threats to 
 use force and violence were made, accompanied by acts of such 
 a character as were reasonably calculated to induce in the 
 mind of an ordinarily rational person the belief that force and 
 violence would be used, unless he leave the train, and plaintiff 
 left in consequence of such threats, then the threats would be 
 equivalent to the use of force and violence, as regards this 
 suit. 
 
 If you believe, from the evidence, that the plaintiff was 
 injured by the acts of the conductor of one of defendant's 
 trains, as charged in the declaration, and that such acts were 
 done by the conductor while acting for the company, and 
 within the scojje of his employment, as such conductor, then 
 such acts are in law the acts of the railroad company. 
 
 § 7. Passenger Can Only be Put Off at a Station — {Illinois 
 Statute). — That if a person on a railroad train or car, on rea- 
 sonable demand, refuse to pay his fare, the conductor of the 
 train may remove such person, or cause him to be removed 
 from the car, at any regular station, but only at a regular 
 station, unless the person to be removed consents to be put off 
 at some other place. 
 
 § 8. Tnjui'ies to Passengers. — The court instructs the jury, 
 as a matter of law, that railroad corporations are required to 
 use all reasonable precautions for the safety of the traveling 
 public, whether in the construction and operation of their 
 engines and cars, or the erection of their depots, or the con- 
 struction of their tracks or the approaches to their trains, and
 
 RAILROADS. 387 
 
 it is their duty to furnish safe approaches to their passenger 
 cars ; if anj of these are insecure or unsafe, when it could 
 have been avoided, by a reasonable effoi-t and precaution, and 
 injury results, the company will be liable for damages result- 
 ing therefrom. Chi. c& A. Rd. Co. vs. Wilson, 63 111., 1G7. 
 
 FENCING TRACK. 
 
 NoTR. — The obligation of railroad companies to fence the track of their 
 roads, to grive warning at highwaj- crossings, and their liability for damages 
 occasioned by fire escaping from their locomotives, are mainly imposed or 
 regulated by the statutes of the several states; and these statutes differ some- 
 what in their details. The following instructions can readily be adapted 
 to the statutes of the different states, by making the changes necessary for 
 that purpose. 
 
 § 9. Failure to Comply with the Law, Negligence per se. — 
 The jury are instructed, as a matter of law, that if a railroad 
 company, or its servants, fail to perform a duty prescribed by 
 statute or ordinance, such failure is negligence of itself; pro- 
 vided, it is the proximate cause of an injury to the person or 
 property of another. Penn. Co. vs. Ilensil^ 70 Ind., 569; 
 Thompson, Neg., 419, § 1232. 
 
 § 10. Statutory Provisions — Fencing the Track. — The jury are 
 instructed, that by the law of this state, every railroad corpo- 
 ration is required, within {six months) after any part of its line 
 is open for use, to erect, and thereafter maintain, fences on 
 both sides of so much of its road as is open for use, suitable 
 and sufficient to prevent cattle, horses, sheep, hogs or other 
 stock from getting onto such railroad; except at the cross- 
 ings of public roads and highways, and within such portions 
 of cities, and incorporated towns and villages, as are laid out 
 and platted into lots and blocks. 
 
 If you believe, from the evidence, that the {horse) in ques- 
 tion got upon the defendant's railroad track upon the occasion 
 referred to, not at the crossing of a public road or highway, 
 and not within any portion of a city, incorporated town or 
 village, which is laid out and platted into lots and blocks, and 
 that that portion of the road had been in operation six mouths 
 and more, before the accident in question; and if you fur- 
 ther believe, that the fence on the side of the track, at the
 
 388 NEGLIGENCE. 
 
 point in question, tlirongli tlio neglio^ence of the defendant, 
 was out of repair, and was not sufficient to prevent horses 
 getting onto such railroad, and that the (horse) got onto the 
 track by reason of the insufficiency of the fence, and was 
 there injured, as charged in the declaration, then it is imma- 
 terial whether the company was careful or negligent in run- 
 ning its engine and cars. The neglect to keep up a sufficient 
 fence fixes the liability of the company for all damage to stock 
 occasioned thereby; provided, the owner of the stock is 
 guilty of no fault or neirligence contributing to the injury. 
 If you believe, from the evidence, that the stock in question 
 got upon the defendant's railroad track at a point where the 
 company was, by law, bound to erect and maintain fences, as 
 explained in the preceding instructions; that that portion of 
 the road had been in operation [six months) and more, and 
 that the fence, where the stock got upon the track, was, through 
 tlie carelessness and neglect of the company, not then suitable 
 and sufficient to prevent the stock getting upon the track, and 
 that the stock did, in fact, get upon the track by reason of the 
 insufficiency of the fence, and was there injured and damaged, 
 without any fault or negligence on the pai t of the plaintiff, 
 then the plaintiff has a right to recover in this suit. 
 
 § 11. Company Must Exercise Reasonable Care. — The court 
 insti'ucts the jury, as a matter of law, that when, by the use 
 of ordinary care and diligence, on the part of the servants of 
 a railroad company, animals straying upon its ti'acks can be 
 saved from injury, then it is the duty of such servants to exer- 
 cise that degree of care, and a failure to do so, if proved, 
 renders the company liable for any damages thereby sustained. 
 T., P. <& W. Rd. Go. vs. Ligraham, 58 III, 120; Wharton 
 on Neg., § 357; ParJcer vs. Ed. Co., 34 la., 399; Ed. Co. vs. 
 Smith, 22 Ohio St., 227. 
 
 Although you may believe, from the evidence, that the 
 stock in question got upon the railroad track of the defend- 
 ant, without any negligence upon the part of the company, still 
 if you further believe, from the evidence, that the person in 
 charge of the engine, by the exercise of reasonable and ordi- 
 nary care, and without danger to his engine and train, could 
 have avoided the injury, and did not do so, then the comj^any
 
 EAILKOADS. 889 
 
 would be liable for such injury ; provided, that you further 
 believe, from the evidence, that the owner of the stock, or the 
 persons having it in charge, wore guilty of no negligence 
 which contributed to Guch injury. Wharton on Neg., § 893; 
 Chi. cfe N. W. Ed. Co. vs. Barrie, 55 111., 226; Fames vs. S. 
 <& L. Rd. Co., 98 Mass., 560; LocJce vs. St. Paul, etc., 15 
 Minn.. 350; JS'eedham vs. Railroad., 37 Cal., 409; Skejphard 
 vs. Railroad, 35 N. Y., 641. 
 
 The court further instructs you, that when a railroad com- 
 pany fails to fence its track, as required by statute, it innst see 
 that its servants so conduct its trains that injuries shall not 
 result to stocic tluit mvy got upon its track, if it can be done 
 by care and caution. If the company fails to fence its track, 
 it takes u[)on itself the hazard, and when injury results there- 
 from it must respond in damage. Toledo, P. <£; W. Rd. Co. 
 vs. Zaoer!/, 71 111., 522; Toledo, W, (& W. Rd. Co. vs. Mc- 
 Gimiis, 71 III., 346. 
 
 § 12. Company Only Held to Reasonable Care — Casual Breach 
 
 in Fence. — The court instructs the jury, that while railroad 
 companies are not required to keep such a guard on their 
 roads as to see a breach in the fence and repair it the instant 
 it occurs, still the law does require them to keep such a force 
 as will discover breaches and openings in their fences, and to 
 close them within a reasonable time ; and if they neglect to 
 do so within a reasonable time, it is a neglect of duty that will 
 render them liable for an injury to stock escaping onto the 
 road through such openings ; provided, the owner or the ])er- 
 son having the stock in charge is guilty of no negligence 
 which contributed to the injury. C. cfi N'. W. Rd. Co. vs. 
 Harris, 54 111., 528. 
 
 If you believe, from the evidence, that the defendant had 
 erected a fence suitable and sufficient to prevent horses and 
 cattle, sheep and other stock from getting upon the railroad at 
 the point where the animals in question got upon the track, 
 and had maintained the fence in good repair up to [the even- 
 ing before the accident), and that the injury was occasioned by 
 the fence being broken down at the time of the accident, then 
 negligence on the part of the defendant ought not to be 
 inferred, unless you further find, from the evidence, that the
 
 390 NEGLIGENCE. 
 
 servants of the company knew of the fence bcino; down, or 
 else tliat it had been down for sncli a length of time that, in 
 the exercise of reasonable care and watchfulness, they ought 
 to have known of its bringdown, and failed to repair it within 
 a reasonable time thereafter. C. & A. lid. Co. vs. Umphen- 
 our, 69 111., 198. 
 
 The court further instructs you, as a matte:- of law, that 
 when a railroad is inclosed by a suitable and sufficient fence, 
 and a casual breach occurs therein, without the knowledge or 
 fault of the companj^ and through such breach stock get u])on 
 the track and are injured, the company is not liable, nnless it 
 has had a reasonable time to discover such bi'each, or lias been 
 notified and fails to repair \vitliin tr reasonable time, and befoi-e 
 the injury occurred. Shearm. &Redfield on Neg., 517; Boh- 
 inson vs. The Grand Trunk Bd. Co., 32 Mich., 322 ; Davis 
 vs. Chicago, etc., lid. Co., 40 la., 292 ; Indianapolis, etc., Rd. 
 Co. vs. Truitt, 24 Ind., 162; Ind. c& St. Louis lid. Co. vs. 
 Ball, 88 111., 368. 
 
 If you believe, from the evidence, tliat on {the day lefore 
 the injury) the defendant had a good and sufficient fence to 
 prevent horses, cattle, sheep, hogs and other stock from getting 
 onto the track, at the point in question, and that after that it 
 was blown down, or broken down by trespassers, or otherwise, 
 without the fault of the defendant, and that wliile tlie fence 
 was so down, the plaintifli's stock got tJirough the broken fence 
 and was injured, before the defendant had a reasonable time 
 in which to repair it, then the defendant would not be liable 
 for injuries resulting from the fence being out of repair. 
 
 If you believe, from the evidence, that defendant had a 
 good and sufiicient fence on the side of its road, through 
 ])laintiff's farm or pasture, until shortly before the accident, 
 and that it was broken down by trespassers, or by unruly stock, 
 or blown down by wind, and that plaintiff's horses got througli 
 the fence before defendant had reasonable time to repair it, 
 then you should find for the defendant. 
 
 The court further instructs you, that when a railroad com- 
 pany builds and maintains a good and sufficient fence through 
 a farm, and it is blown down, burnt down, or thrown down by 
 trespassers, and without the fault of the railroad company, 
 then the company has a reasonable time in which to repair the
 
 EAILKOADS. 39 1 
 
 fence, and it is not responsible for any damages which mav 
 ensue solely from the insufficiency of the fence until such 
 reasonable time hae elapsed. / O. Bd. Co. vs. Swearingen^ 47 
 111., 20G; Gill vs. I2d. Co., 27 Ohio St., 240. 
 
 § 13. Stock Unlawfully Running at Jjur^e. — The court in- 
 structs the jury, that at the time in question it was unlawful 
 to permit cattle or liorses to run at large, at and within, etc., 
 and if the jury believe, from the evidence, that the plaintiff 
 voluntarily permitted the horse in question to run at large, at 
 and within, etc., and under such circumstances that it might 
 reasonably have been foreseen or anticipated that the horse 
 might get upon the defendant's track, then the ]:)laintiff can. 
 not recover of the defendant for the killing of the horse by 
 one of its trains, upon the ground alone that the company had 
 failed to fence its track at the place where the animal was 
 killed. Wharton on Neg., § 900 ; P. P., cfc J. Bd. Co. vs. 
 Champ, 75 111., 577; Indiana Bd. Co. vs. Shimer, 17 Ind., 
 295 ; Jef., etc., Bd. Co. vs. Adams, 43 Ind., 4 )2; Pearson vs. 
 MilwauJcee, etc., 45 la., 496. 
 
 The fact that the owner of stock permits it to run at lare-e, 
 in violation of the act prohibiting domestic animals from run- 
 ning at large, does not relieve railroad companies from their 
 duty to fence their roads, nor from their liability for stock in- 
 jured in consequence of their failure to do so; and the ques- 
 tion whether the owner of the stock has been guilty of con- 
 tributory negligence in permitting them to run at large, is one 
 of fact to be determined by the jury from all the circumstances 
 of the case. And to .render the owner of the stock guilty of 
 contributory negligence, in permitting his stock to run at large, 
 it must appear, from the evidence, that he did so under such 
 circumstances that the natural and probable consequence of so 
 doing was that the stock would go upon the railroad track and 
 be injured. Evnng vs. Chicago <& A. Bd. Co., 72 III., 25. 
 
 The court instructs you, that the fact, if proved, that the 
 plaintiff permitted his stock to run at large, in violation of the 
 law prohibiting domestic animals from running at large, does 
 not relieve the defendant from its duty to maintain a suitable 
 and sufficient fence along the line of its road, if you find, from 
 the evidence, under the instructions of the court, that the de-
 
 392 NEGLIGENCE. 
 
 fendant was otherwise bound to do so; nor from liability for 
 stock injured in consequence of its failure to do so, if you find, 
 from the evidence, under the instructions of the court, that 
 the defendant is othei'wise liable therefor. Rd. Co. vs. Lull, 
 2S Mich., 510; L. Is''. A. & O. \s. WMicsell, 68 lud., 297; 
 \Vhiie\s. Utica, etc., Rd. 6*0., 15IIun, 833; Cairo Rd. Co.yQ' 
 Murray, 82 111., 76. 
 
 The question whether the plaintiff wac guilty of contributory 
 negligence in permitting his cattle to run at large, is one of 
 fact to be determined by the jury from all the circumstances of 
 the case. And to render him guilty of contributory ncgl igcnce, 
 in permitting his stock to run at large, the jury mnt;t believe, 
 from the evidence, that he did so under such circumstances 
 ihat the natural and ])robable consequence of so doing was, 
 that the stock would go upon the railroad track and be injured. 
 In the absence of an order of the county commissioners (or 
 a vote of the inhabitants, etc.,) permitting stock to run at large, 
 the plaintiff was in duty bound to keep his stock on his own 
 premises, or to use all ordinary and reasonable means and appli- 
 ances for that purpose, and if he knowingly and voluntarily 
 suffered his stock to run at large, in the immediate vicinity of 
 that part of defendant's road where it was not bound by law 
 to fence, as explained in these instructions, and if you further 
 believe, from the evidence, that the (colts), while so suffered 
 to run at large, got upon the track of defendant's road at a 
 point where it was not bound by law to fence as explained, etc., 
 and were then killed, the plaintiff cannot recover unless such 
 killing was willful or wantonly reckless. I7id. (& C. <& L. 
 Rd. Co. vs. Harter, 38 lud., 557; £arnes vs. JS. (& L, R. Co., 
 98 Mass., 560. 
 
 § 14. Obligation to Fence not Limited to Acyoining Owner. — 
 
 The obligation to construct and maintain fences uj)on both 
 sides of their roads, imposed by the laws of this state upon 
 railroad companies, is not limited to owners and occu])iers of 
 adjoining lands, but extends to tlie j)ublic generally. 
 
 "Where cattle running at large without the fault of the 
 owner, enter the inclosed field of another person through 
 which a railroad passes, and thence go upon the track of the 
 road by reason of a want of sufhcient fence, and are injured,
 
 KAILKOADS. 393 
 
 t]ie raili-oad company will bo liable, provided they have not 
 built a good and sufficient fence (according to tlie statute) or 
 had allowed the fence to become out of repair after notice 
 thereof, and a reasonable time for its repair, lid. Co. vs. 
 StejphensoR et al., 24 Ohio St., 4S. 
 
 § 15. Cattle Guards. — In order to keep its road securely 
 fenced, the statute of this state requires a railroad company 
 to construct and keep in repair cattle guards on each side of its 
 track at all highway crossings. And in this case, if the jury 
 believe, etc. Plttsbut'g, O. db St. L. Rd. Co. vs. di^by^ 55 Ind., 
 567 
 
 § 16. Plaintiff's Contributory Negligence. — The jury are in- 
 structed, that when a railway company fences its track, as 
 required by statute, and the fence afterwards becomes de- 
 fective, an action against the company for injuries to liorses 
 or cattle straying upon the track, through such defective fence, 
 cannot be maintained, if it appears that the owner of the 
 animals was guilty of negligence, which naturally and directly 
 contributed to such injury. Jones vs. The Sheboygan cfi Fond 
 du Lao Ed. Co., 42 Wis., 306. 
 
 § 17. Stock Escaping and Running at Large. — If the jury be- 
 lieve, from the evidence, that the horse in question broke 
 out of the pasture and went upon the railroad track, without 
 any fault or negligence on the part of the plaintiff, and was 
 there killed, and that such killing was the i-esult of negligence, 
 and of a want of ordinary care and reasonable caution on the 
 part of defendant's servants, then the plaintiff was not guilty 
 of such contributory negligence as will prevent a recovery in 
 this case. T., P. c& W. Rd. Co. vs. Johnson, 74 III, 83. 
 
 § 18. What the Plaintiff Must Prove to Recover. — The court 
 instructs the jury, that to entitle the plaintiff to recover, he 
 must prove every material allegation in his declai-ation, b}"^ a 
 preponderance of evidence. The jury must believe, from the 
 evidence, that the place where the animal got upon the track 
 was at a point where the defendant was bound by law to fence; 
 tJ»at is, that it (was not at the crossing of a public road or
 
 394: NEGLIGENCE. 
 
 highway, and was not within that portion of any city, incor- 
 porated town or village, which is laid out and platted into lots 
 and blocks); and further, that defendant's road, at that point, 
 had been in operation {six months) or more, and that the fence, 
 through the negligence or carelessness of the defendant, was 
 not sufficient to turn horses, cattle and othei- stock; and if the 
 plaintiff has failed to prove either of these things, by a ]irepon- 
 derauce of evidence, the y.wy should liud for the defendant. 
 
 INJURIES BY FIKE. 
 
 § 19. Prima Facie Ne2:ligenee. — The court instructs the jury, 
 that if they believe, from the evidence, that the plaintiii's 
 property was injured by fire, caused by fire or sparks escaping 
 from defendant's locomotive, while passing along the railroad, 
 in manner and form as charged in tlie plaintiff's declaration, 
 then, under the laws of this state, these facts make a ^yrima 
 facie case of negligence against the defendant; and the bur- 
 den of proof is then upon the defendant to rebut this 'prima 
 facie case, by showing affirmatively that at the time in ques- 
 tion the engine was properly constructed and equipped with 
 the best approved appliances for preventing the escape of fire; 
 that these appliances were all in good repair and condition, as 
 regards the escape of fire, or that all reasonable care and cau- 
 tion had been taken to keep them in such i-epair and condition, 
 and that the engine was carefully and sivillfully handled, as 
 regards the escape of fire therefrom; provided, the plaintiff 
 was guilty of no fault or negligence contributing to the injury. 
 P., a d3 St. Louis Ed. Co. vs. Campbell, bO 111., 443; Kellogg 
 vs. G. & N. W. Ed. Co., 26 Wis., 223; Kesee vs. C. c& R. W., 
 30 Ta., 78; Cooley on Torts, 661. Contra: Wharton on Neg., 
 § 868-870. 
 
 § 20. Reasonable Care Required to Prevent Spread of Fire. — 
 
 It is the duty of a raih-oad company to take all reasonable pre- 
 cautions to prevent the spread of fire from its locomotives. 
 And while property owners adjoining take the risk of injuries 
 unavoidably produced by fire used for generating steam, yet, 
 for any negligence in the use of it, the company will be liable. 
 Proof of the destruction of property, by fire escaping from
 
 EAILKOADS. 395 
 
 a locomotive, raises a prima facie Ciise of negligence, which 
 the defendant must rebut b/ showing the absence of negli- 
 gence, by a preiionderance of evidence, or that the plaintiff's 
 own fault or negligence contributed to the injury. Coale vs. 
 Hannibal, etc., R. R. Co., 00 Mo., 227. 
 
 If the jury believe, from the evidence, that plaintiff's prop- 
 erty was injured by lire escaping from defendant's engine, 
 while passing along the railroad, as charged in plaintiff's decla- 
 ration, then this makes 2^ prima facie case of negligence against 
 the defendant; and it is not enough to rebut i\\h prima facie 
 case to show that the engine was originally constructed with 
 the best and most approved appliances and improvements to 
 ])revent the escape of fire. The law imposes upon the com- 
 pany and its employes the duty of keeping a vigilant, careful 
 watch to see that the engine is kept in proper repair, so as not 
 to be unnecessarily dangerous to property in the vicinity of 
 the road; and unless the defendant has shown, by a preponder- 
 ance of evidence, that the engine in question was in such good 
 repair and condition at the time of the injury cum[)lained of, 
 or that all reasonable ]jrecautions had been taken to have it in 
 such repair and condition, then the defendant has not rebutted 
 such prima facie case made against it; provided the jury 
 believe, from the evidence, that the plaintift''s own fault or 
 negligence did not contribute to the injury. C. <& A. Rd. 
 Co. vs. Quaintance^ 58 111., 3S9 
 
 § 21. Must Provide Most ImproAed Apparatus to Prevent 
 Escape of Fire,— The jury are instructed, that railroad compa- 
 nies ai-e required by law to keep constantly in use the most ap- 
 proved machinery and apparatus to prevent the escape of fire 
 from their engines, to the injury of property along their lines^ 
 so far as this can be done by the exercise of all reasonable care, 
 skill and vigilance. T., P. & W. Rd. Co. vs. Pindar, 53 111., 
 447; G. & A. R. R. Co. vs. Pennell, 94 111., 449; C. & A. R. 
 R. Co. vs. Quaintance, 58 111., 389. 
 
 The law does not require a railroad company to provide and 
 use the very best known appliances that mechanical skill and 
 ingenuity have been able to devise and construct to prevent the 
 escape of sparks from its locomotives, but they are required to 
 use all reasonable means to that end, and where a new improve-
 
 396 KEGLIGEJSrCE. 
 
 inp.nt of such appliances has been made, or a new invention 
 introduced, which has been tested and generally approved as 
 better than that it is using, it is i-equired to adopt and use the 
 better appliances. Toledo W. <& W. Rd. Go. vs. Corii^ 71 
 III, 493. 
 
 The court further instructs the jury, that no matter what 
 mechanical appliances were on the smoke-stack, or engine, to 
 prevent the escape of lire, if the jury believe, from the evi- 
 dence, that the tire got out through the negligence of the 
 defendant's engineer or fireman, in such case the defend- 
 ant would be liable, and the jury should find the issues for 
 the plaintiff; provided, the jury further find, from the evidence, 
 that the plaintiff's own negligence did not contribute to the 
 spread of the fire. 
 
 If the jury believe, from the evidence, that at the time in 
 question the tire escaped from defendant's engine, tlirough the 
 negligence of its servants and employes, and was thereby com- 
 municated to the fence and fields of the plaintiff, and further, 
 that the plaintiff's own negligence in no manner contributed 
 to the starting or spread of the fire, then the jury should find 
 for the plaintiff, and assess his damages at such an amount as 
 the evidence shows the plaintiff' has sustained by reason of the 
 
 fire. 
 
 If the jury believe, from the evidence, that the fire in ques- 
 tion originated from defects in the construction of defendant's 
 engine, which might have been I'emedied or prevented by the 
 exercise of reasonable care and skill, then the defendant is liable 
 for all the damage caused by such tire, so far as the same has 
 been proved, if any has been proved; provided, the jury further 
 believe, from the evidence, that the plaintiff"'s own fault or 
 negligence in no manner contributed to the lighting or spread- 
 ing of snch tire. 
 
 If the jury believe, from the evidence, that the defendant's 
 servants, in charge of the engine, did not exercise reasonable 
 care and caution in the running and management of the said 
 engine, and that the tire in question was caused by their failure 
 so to do, then the defendant is liable for all the damage, if any, 
 sustained by "the plaintiff, and occasioned by said fire; provided, 
 the jury further believe, from the evidence, that the plaintiff's 
 own fault or negligence in no manner contributed to the light- 
 ing or spreading of said fire.
 
 RAILROADS. 397 
 
 § 22. Dry WcjMlsaiul Grass. — If tlie jury beliovc, from the 
 evidence, that the defendant, negligently and carelessly, al- 
 lowed dry grass, weeds, and other combustible material, to 
 accumulate on its right of way adjoining plaintiff's premises, so 
 as to unnecessarily increase the hazard from fire, and that by 
 reason of such accumulation of combustible miaterial, the fire 
 was kindled, and communicated to the fence and field of the 
 plaintiff, and further, that the plaintiff's own negligence in no 
 manner contributed to the kindling or the spreading of the 
 fire, tlien the jury should find for the plaintiff the amount of 
 damages, if any, which are proved to liave resulted from said 
 fire. And in such case it makes no difference whether the 
 best appliances to prevent tlie escape of fii-e were or were not 
 used on the engine from which the fire escaped, if the jury 
 believe, from tlie evidence, that the fire did escape from de- 
 fendant's engine. Flyim vs. San Francisco Rd. Co., 40 Cal., 
 14; Ilartin vs. W. U. Ed. Co., 23 Wis., 437; H we7j \s. 
 Nourse, 54 Me., 256; Ingersoll vs. Stockridge. etc., lid. Co., 
 8 Allen, 438; /. C. Ed. Co. vs. Nunn, 51 111., 78; Wharton on 
 Neg., § 873; Poepper vs. M. etc., Ed., G7 Mo., 715; Jo7ies vs. 
 M^C. E. E. Co., 59 Mich. 437. 
 
 If the jui'y believe, from the evidence, that anyone ormore 
 of the fires which are complained of by the plaintiff in this 
 case, were caused by, or originated from, defects in the con- 
 struction of the defendant's engine, which might have been 
 remedied by the exercise of reasonable and ordinary care and 
 skill, or from the carelessness of the defendant's servants in 
 charge of the engine, and that the ])laintiff was damaged there- 
 by as charged in the declaration, and that the plaintiff was 
 guilty of no negligence which contributed to the injury, then 
 the jury should find the issues for the plaintiff, and assess his 
 damages at such a sum as they believe, from the evidence, he 
 has sustained from such careless or negligent acts. 
 
 § 23. Degree of Care Required of Land Owner. — Tiie court 
 instrncts the jury, that the owner of land adjoining a railroad 
 track is as much bound to keep liis land free from unusual and 
 dangerous accumulations of combustible matter as a railroad 
 company is its right of way. And if the owner or occupant 
 permits an unusual and dangerous accumulation of dead grass,
 
 398 " NEGLIGEXCE. 
 
 dry leaves, or other combustible material to accnmnlate on his 
 land next to the company's right of way, and a fire is ignited 
 on the right of way, and is thence communicated to the lields 
 adjoining, by means of such unusual and dangerous accumula- 
 tions of combustible material, then the negligence of the 
 owner will be held to liave contributed to the loss and injury, 
 and in such a case the owner of the property injured cannot 
 recover for such injury, unless the jury believe, from the evi- 
 dence, thatliis negligence was but slight, and the negligence 
 of the railroaJ comi)any w^as gross, as explained in these 
 instructions. C. & N. ^Y. vs. Simonsori, 25 111., 504; Ohio & 
 31. Rd. Co. vs. ShayiefeeU ^7 Hh, 497. 
 
 The jury are instructed, that in determining the question, 
 wlicther or not the defendant was guilty of negligence, which 
 contributed to the fire in question, in permitting grass, dry 
 weeds or leaves to accumulate within its right of way at the 
 point where the fire in question occurred, the jury should con- 
 sider and determine from the evidence, whether the defend- 
 ant permitted such an accumulation of dry grass, weeds and 
 leaves or other combustible material upon its right of way at 
 the point in question, as would not have been likely to be per- 
 mitted by an ordinarily careful and prudent man upon his own 
 premises, if his property were exposed to the same hazard. 
 Snyder vs. Pittsburg, etc., Rd. Co., 11 "W. Ya., 14. 
 
 The court instructs you, as a matter of laAV, that it is not 
 negligence on the part of the owner,' or occupant, of ]'roperty 
 injured by fire escaping from an engine passing along a rail- 
 road, that he has used the property in the manner, or permitted 
 the .^ame to be used, or remain in the condition in which it 
 would have been used or remained, had no railroad passed 
 through or near it. Fltjnn vs. San Francisco & San Jose Rd. 
 Co., 40 Cal., 14; Kellogg vs. C. & N. TF". Rd. Co., 26 Wis., 
 223 ; Rd. Co. vs. Salmon, 39 K J. L., 299. 
 
 The court instructs you, that the defendant was not bound 
 to furnish the very best or most improved kind of machinery 
 or apparatus to prevent the escape of fire from its engine ; and 
 if you believe, from the evidence, that the engine, etc., con- 
 nected with the same were reasonably safe, and such as are 
 ordinarily used for the purpose for which these were intended, 
 and that the defendant was not otherwise guilty of negligence, 
 then the defendant would not be liable in this case.
 
 EAILROADS. 399 
 
 Althoiigh you may believe, from tlie evidence, that an 
 improvement has been made and patented upon engines similar 
 to the one in question, or upon the apparatus used in connec- 
 tion therewith, for preventing the escape of lire, yet the 
 defendant was not, on that account, bound to purchase or use 
 such improvement; tlie defendant was only under obligation 
 to use reasonable and ordinary care In providing suitable and 
 safe machinery, and to provide such as was reasonably safe. 
 Wharton on Neg., § 635, 822; Camp Point Mfg. Co. vs. 
 Ballou, 71 111., 417. 
 
 § 24. Reasonable Care and Diligence only Required by the Com- 
 pany. — The court instructs the jury, that raih-oad companies 
 are only bound to exercise reasonable diligence and care to 
 prevent fire or sparks from escaping from their locomotives, 
 while running on their roads, and in keeping their track or 
 right of way free and clear from combustible material, so as 
 to prevent injury by fire to farms or projjerty along the lines 
 of their roads; and, in this connection, reasonable care and 
 diligence is such care and diligence as a careful, prudent and 
 skillful man would observe, under like circumstances, to pre- 
 vent injury to his own property, equally exposed; and if the 
 jury believe, from the evidence, that the defendant, in this 
 case, did exercise all such reasonable care, diligence and skill 
 to prevent injury, by a fire, to the property of the plaintiff, 
 that is all the law required, and the defendant is not guilty of 
 negligence. 
 
 Although you may believe, from the evidence, that the fire 
 in question originated on defendant's right of way, by reason 
 of fire escaping from one of its engines, still, if you further 
 believe, from the evidence, that such engine was properly con- 
 structed, and had all the most approved appliances and inven- 
 tions for preventing the escape of fire, and that the defendant 
 exercised all reasonable care, diligence and watchfulness to 
 keep the same in repair, and further, that the defendant used 
 all reasonable care and diligence to prevent dry weeds and 
 grass, and other combustible materials, from accumulating un 
 and near its right of way where the fire originated, and also 
 that defendant's servants used all such care and diligence, both 
 in running and managing the engine, and in keeping the track
 
 400 NEGLTGENCE. 
 
 clear to prevent fires, as prudent and careful men are accus- 
 tomed to use under like circumstances, then you should find 
 the defendant not guilty. 
 
 Though you may believe, from the evidence, that the plaint- 
 iffs timber and grass were injured by reason of fire escaping 
 from defendant's engine, as charged in the dec''aration, still, 
 the defendant is not liaWe therefor, if you further believe, 
 from the evidence, that the engine in question and its ap])li- 
 ances for preventing the escape of fire, were the most ap- 
 proved construction, and were then in good condition and 
 repair, as regards the escape of fire; and provided, you fur- 
 ther believe, from the evidence, that the defendant, its agents 
 and servants, were not guilty of any neglect of reasonable care 
 in reference to the lighting or spread of said fire. 
 
 The jury are instructed, as a matter of law, that although 
 they may believe, from the evidence, that sparks from de- 
 fendant's engine set fire to plaintiff's barn, as alleged in the 
 declaration, still, if the evidence further shows that the engine 
 was in gocd condition, protected by all modern improvements 
 and appliances to prevent the escape of fire, not out of repair, 
 that the engineer in charge of the same was competent and 
 skillful, that he handled the engine in a proper and skillful 
 manner, then the law is for the defendants, and the jury have 
 no discretion in the matter, and they should find the defendant 
 not guilty. 
 
 Although the jury may believe, from the evidence, that the 
 injury complained of was caused by sparks escaping from de- 
 fendant's locomotive, this alone is not sufficient to prove 
 negligence on the part of defendant. In order to warrant a 
 verdict in this case, the jury must believe, from the evidence, 
 not only that the injury was caused by sparks escaping from 
 defendant's engine, but it must further appear from a pre- 
 ponderance of the evidence, that the defendant was guilty of 
 negligence in permitting such st arks to escape, or in permit- 
 ting (as alleged in the declaration). Ruffner vs. (7., etc.^ Rd. 
 Co., 34 Ohio St., 96. 
 
 If the jury believe, from the evidence, that the defendant 
 constructed a highway crossing at the point in question, and 
 that, taking into account the location, nature of the ground 
 and all the surroundings of the place, the crossing was con-
 
 KAILEOADS. 401 
 
 structed in such a manner as to render it easy to approach and 
 cross by travelers and teams on the highway, without danger 
 to persons using reasonable and ordinary care, then the de- 
 fendant did ail tliat was required of it in making the cross- 
 ing, and would not be guilty of negligence, as regards the 
 manner of constructing the crossing. Ind.^ St. L. lid. vs. 
 Stout, 53 Ind., 143. 
 
 HIGmvAT CE08SINGS. 
 
 § 25. Must be put in Safe Condition. — By the law of this 
 state, every corporation owning or operating a railroad in this 
 state, is required to construct reasonably safe crossings at all 
 points where it intersects a public highway; and it is liable 
 for all injuries resulting from neglect of this dntj'-, if the 
 party injured is guilty of no negligence contributing to such 
 injury. Farley vs. The C, R. I., etc., Ed. Co., 42 la., 234. 
 
 § 26, Reasonable Care Required at Highway Crossings. — The 
 
 jury are instructed, that although a person may be improperly 
 or unlawfully upon a railroad track, that fact alone will not 
 discharge the company or its employes from the observance 
 of reasonable care ; and if such a person is run over by the 
 train, and killed or injured, the company will be responsible, 
 if its employes could have avoided the accident by the exer- 
 cise of reasonable and ordinary care and watchfulness. Isabel 
 vs. Hannibal, etc., Bd. Co., 60 Mo., 475. 
 
 § 27. Negligence of Driver. — According to the admitted 
 facts in this case, the plaintiff (or deceased), at the time of the 
 accident, was being driven across the railroad track by one 
 E., in a lumber wagon, and you are instructed by the court, if 
 you believe, from the evidence, that there was any negligence 
 on the part of the driver of the wagon, which contributed to 
 the injury in question, then that negligence has the same effect 
 on the plaintiff's right to recover as if the negh'gence had 
 been that of the plaintiff (or deceased) himself. Lake Shore 
 & Mich. Southern Bd. Co. vs. Miller, 25 Mich., 274. 
 
 If the jury believe, from the evidence, that the driver of 
 the wagon was employed by the plaintiff to drive, etc., and 
 26
 
 402 KEGLIGENCE. 
 
 that there was ueglic^ence on the part both of the defendant 
 and of the driver, which contributed directly to the accident, 
 then tlio jury have no right to strike a balance between them, 
 so as to find a verdict for tlie plaintiff, but in such case the 
 jury should find a verdict for the defendant. 
 
 If you believe, from the evidence, that the defendant was 
 guilty of negligence or a want of ordinary care and skill in the 
 construction of its track at the road crossing in question, and 
 that the plaintiff was injured thereby in attempting to cross 
 the track, and that he was not himself guilty of any negli- 
 gence that contributed directly to such injury, and that such 
 injury caused his death, then your verdict should be for the 
 plaintiff. Ind. & &t. L. lid. Co. vs. Stout, 53 Ind. l-iS. 
 
 The jury are instructed, that the defendant had a right to 
 build its road across the highway described in the complaint, 
 but, in doing so, it was required to restore the highway to its 
 former state of usefulness, so far as it was rca onably practicable, 
 and so as not unnecessaiily to im]>air the usefuhiess of the 
 highway or render it unnecessarily dangerous in crossing. But 
 whether, in this case, the defendant was gnilty of a want of 
 ordinary care and skill, etc., etc., are questions of fact to be 
 determined by the jury from all the evidence in the case. 
 
 If you believe from the evidence, that the driver of the 
 team was guilty of any degree of negligence, which contrib- 
 uted directly to the injury, then the jury should find for the 
 defendant, even though you believe, from the evidence, that 
 the negligence of the defendant, in some measure, caused the 
 injury complained of. 
 
 Although the jury may believe, from the evidence, that at 
 the time of the injury complained of, the plaintiff was riding 
 in a wagon driven by one A. B., and that the said A. B., as 
 such driver, was guilty of negligence which contributed 
 directly to the injury complained of, still, if the jury further 
 believe, from the evidence, that the plaintiff was merely rid- 
 ing for pleasure with the said A. B., and upon his invitation, 
 and that the plaintitf had no right nor authority to control the 
 movements of the said horses and wagon or their driver, and 
 did not exercise any such control, then the contributory negli- 
 gence of the driver would not prevent a recovery by the 
 plaintiff in this suit, provided the jury further believe, from
 
 EAILEOADS. 403 
 
 the evidence, tliat the defendant was guilty of negh'gencc, as 
 charged in the declaration, and that the plaintiff was injured 
 thereby, and also, that the plaintiff was not himself guilty of 
 any negligence which contributed to the injury Dye7' vs. 
 Erie Rd. Co., 71 N. Y., 228. 
 
 § 28. Signals to be Given at Road Crossings. — The court in- 
 structs the jury, that, by the laws of tliis state, every railroad 
 company is required to have a bell of at least (30) pounds 
 weight and a steam whistle placed and kept on each locomo- 
 tive, and to cause the same to be rung or wdiistled at the dis- 
 tance of, at least, {eighty) rods from the place where the rail- 
 road crosses a public highway, and to keep the same ringing 
 or whistling until the highway is reached. 
 
 If the jury believe, from the evidence, that the defendant's 
 agents or servants in charge of the engine in question, omitted 
 to ring a bell or sound a whistle continuously for the distance 
 of {eightif) rods before reaching the highway crossing, sucli 
 omission constitutes ^ prima facie case of negligence on the 
 part of the defendant; and if the jury further believe, from 
 the evidence, that the plaintiff was struck and injured at the 
 railroad crossing in question, as charged in the declaration, in 
 consequence of the omission to ring the bell or sound the 
 whistle, while he was himself exercising all reasonable care 
 and caution, in that behalf, then the defendant is liable to the 
 plaintiff for the loss and damage sustained by him, by reason 
 of such injury, if any such loss or damage has been proved. 
 
 The jury are instructed, as a matter of law, that the omis- 
 sion by the defendant, or its servants, to ring the bell or sound 
 the whistle at public crossings, if proved, is not of itself suffi- 
 cient to authorize a recovery by a party injured, if the jury 
 believe, from the evidence, that the complaining party might, 
 by the exercise of ordinary care, have avoided the accident, 
 notwithstanding such omission. 
 
 § 29. Rights and Liabilities of Railroad Companies and Travel- 
 ers are Equal and Mutual. — The court instructs the jury, that 
 railroad companies, under their charters, have the same rights 
 to use that portion of the public highway over which their 
 track passes as the public have to use the same highway.
 
 404 NEGLIGENCE. 
 
 Their rights and those of the piibh'c, as to the use of the high- 
 way at snch point of intersection, arc mutual and reci|)rocal; 
 and, in the exercise of such rights, both the company and 
 those using the highway must have due regard for the safety 
 of others, and use every reasonable effort to avoid injury to 
 others, Ind. & St. Louis lid. Co. vs. /Siahles, 62 111., 313; 
 Shearm. & Red. on Neg., § 481; Penn. lid. Co. vs. Ueileman, 
 49 Penu. St., 60; Cleveland, etc., Rd. Co. vs. Terry, 8 Ohio 
 St., 570. 
 
 The jury are instructed, that if a railroad crosses a common 
 road on the same level, those traveling on either have a legal 
 right to pass over the point of crossing, and to require rea- 
 sonable care and caution of those traveling on the other road 
 to avoid a collision; that while a passing train, from its force 
 and momentum, will have tiie preference in crossing first, yet 
 those in charge of it are bound to give reasonable warning, 
 so that a person about to cross with a team and wagon may 
 stop and allow the train to pass, and such wai-ning must be 
 reasonable and timely, so far as the circumstances will reasona- 
 bly admit of. C, B. cfi Q. Rd. Co. vs. Lee, 87 111., 454. 
 
 If the jury believe, from the evidence, that the injury com- 
 plained of was occasioned by a collision between the team and 
 wagon of the plaintiff and a locomotive engine of the defend- 
 ant, on a public road, at a place where such road crossed the 
 railroad of the defendant, and that the plaintiff used ordinary 
 care and caution to avoid a collision, and that the collision was 
 owing to the negligent, careless and unskillful manner in which 
 the servants of the defendant managed the locomotive and 
 train of cars attached, as charged in the declaration, then the 
 jury should find a verdict for the plaintiff. 
 
 The court further instructs the jury, that if they believe, 
 from the evidence, that the engineer or fireman on the loco- 
 motive which struck the wagon of the deceased, and caused 
 his death — if they believe, from the evidence, his death was 
 so caused — could, by the exercise of reasonable care and watch- 
 fulness, have seen the deceased in time to liave stopped said 
 engine, and avoided the injury, without danger to themselves 
 or train, then the railroad company is liable for the want of 
 such care and watchfulness, and the injury occasioned tliereby; 
 provided, the jury further believe, from the evidence, that
 
 KAILROADS. 405 
 
 the deceased was, at the time, exercising all reasonable care 
 and caution to avoid the injury. Chi. <& Alton JRd. Co. vs. 
 Murray, 62 111., 326. 
 
 The defendant's servants in this case were not bound to use 
 extraordinary care or extraordinary means to prevent acci- 
 dents, they were only bound to use what in that peculiar busi- 
 ness is ordinary care and diligence, and the paramount duty of 
 the emyjloyes on the train was the protection of the passen- 
 gers, the pro]ierty in the train and the train itself. If you 
 believe, from the evidence, that in the usual and ordinaj-y 
 management of the train for the safety of the passengers and 
 property, the eno;ineer had to ]3erform other duties besides 
 watching the track ahead, such as gauging his steam, watching 
 his time table, examining his machinery, watching for the 
 station signals, then he had a lawful right to perform these 
 duties, and he was not bound to neglect them in order to watch 
 the track ahead while performing his duties. And if the jury 
 find, from the evidence, that the engineer in charge of the 
 engine was attending to any or all of these duties at the time 
 of the accident, and that for this reason the stock was not dis- 
 covered in time to save them by using ordinary means to stop 
 the train, then the defendant is not liable. lid. Co. vs. Smith, 
 22 Ohio St., 227. 
 
 § 30. Company Must not Suifer Tall Weeds or Brash to Obstruct 
 the View of the Track. — The court instructs the jury, that it is 
 negligence in a railroad company to permit or suffer brush or 
 tall weeds to grow upon its right of way, so as materially to 
 obstruct the view of the track or approaching trains by 
 persons about to cross the track; and, in this case, if the jury 
 believe, from the evidence, that the defendant permitted and 
 suffered brush and tall weeds to grow upon its right of way, 
 so as to obstruct materially the view of the track and of 
 approaching trains by persons about to cross the railroad on 
 the crossing in cpiestion, and that but for such obstruction the 
 injury in question would not have happened, then the com- 
 pany is liable, in this case, unless the jury further believe, from 
 the evidence, that the plaintiff's own negligence directly con- 
 tributed to the injury. Wharton on Neg., § 386; O^JIm'avs. 
 Radaoii River Ed. Co., 38 N. Y., 445; Artz vs. C, etc., lid.
 
 406 NEGLIGENCE. 
 
 Co., 34 la., 153; hid., etc., Ed. Co. vs. Keeley, 23 Ind., 133; 
 Tahor vs. 3fo. V. Rd. Co., 46 Mo., 353; /. cfi St. Louis vs. 
 Siniih, 78 111., 112. 
 
 If tlie jury believe, from the evidence, tliat the plaintiff was 
 free from negligence, on his j^art, in attempting to cross the 
 track of the railroad, and that the defendant's servants in 
 charge of the engine were guilty of negligence, either in run- 
 ning over the crossing in question at a greater speed than 
 was usual, and than was reasonably safe to persons about to 
 cross the tiack, or in not ringing the bell or sounding the 
 whistle continuously for the distance of {eighty) rods before 
 reaching the crossing, and that by reason of such negligence 
 the plaintiff or his property was injured, and the plaintiff 
 thereby damaged, then the jury should hnd the issues for the 
 plaintiff. 
 
 § 31. Care Required of Traveler^!. — The jury are instructed, 
 as a matter of law, that both tlie plaintiff {or the deceased) 
 and the railway company had an equal right to cross the 
 street at the p<jin' where the accident happened, and that the 
 law imposes upon both parties the duty of using reasonable 
 and prudent precautions to avoid accident and danger; and, 
 while it was incumbent upon the railway company, in running 
 its train on the occasion referi'ed to, to give the required 
 signal by ringing the bell or sounding the whistle {eighty) rods • 
 before i caching the crossing, it was also the duty of the plaint- 
 iff' (or deceased) to look out for the approach of the train, and 
 to observe all reasonable precautions before attempting to 
 cross the track. 
 
 Every person is bound to know that a railroad crossing is a 
 dangerous place, and he is guilty of neglect unless he ap- 
 proaches it as if it were dangerous. And if the jury believe, 
 from the evidence, that the plaintiff {or the deceased), as 
 he approached the railroad track, did not look or listen to as- 
 certain if a train was coming, and observe all reasonable pre- 
 cautions to avoid danger, but, on the contrary, drove directly 
 onto the track, where the accident happened, without taking 
 any steps to ascertain if a train was apinoaching, then he was 
 guilty of such negligence as precludes a recovery in this case,^ 
 unless the jury believe, from the evidence, tliat the servants
 
 EAILEOADS. 407 
 
 of the railway company, upon such occasion, were guilty of 
 gross negligence, as explained in these instructions. Lake 
 Shore Ed. Co. vs. Miller, 25 Mich., 274; C. <& Jf. W. Rd. Go. 
 vs. Batch, 79 111., 137; Davis vs. N. T. Cent., 47 K Y., 400; 
 Allyn vs. Railroad, 105 Mass., 77; Bellefontaine Rd. Co. vs. 
 Hunter, 33 lud., 353; Peiin. Rd. Co. vs. Beale, 73 Pcnn. St., 
 504. 
 
 A person about to cross the track of a railroad, upon a pub- 
 lic highway, is bound to exercise all reasonable care and cau- 
 tion to avoid inj\uy upon the crossing. In his a]i]iroacli to 
 the crossing, it is incumbent upon him to exorcise care and 
 caution by looking and listening for any tiain that may be a]> 
 proaching, so as to avoid a collision; otherwise he cannot re- 
 cover for an injury so received, unless it appears that the 
 injury was inflicted willfully or wantonly [or through gross neg- 
 ligence). Ilearne vs. Southern, etc., Rd. Co., 50 Cal., 482; 
 Toledo, etc., Rd. Co. vs. Shuckrnan, 50 Ind., 42; Haines vs. 
 m. Cent. Rd. Co., 41 Iowa, 227. 
 
 The court instructs the jury, as a matter of law, that it is 
 the duty of a person approaching the crossing of a railroad, 
 with a wagon and team, along a highway, to listen and to look 
 both ways along the railroad before going ujion it. If, from 
 a rise in the ground or other obstructions, or if, by reason of 
 a defect of his sense of sight or hearing, he cannot determine 
 with certainty whether or not a train of cars is approaching 
 without stopping, and, if necessary, going in advance of his 
 team to examine, it is his duty to do so. If, in such case, he 
 goes upon the track without taking such ]u-ecaution, he does 
 so at his own peril, and cannot recover, if injury results. C, 
 B. & Q. Rd. Oo. vs. Lee, 87 111., 454; Dolan vs. Delaware, 
 71 N. Y. 285. 
 
 § 32. Care Mast be Proportioned to Known Danger. — If the 
 
 jury believe, from the evidence, that where the ]mblic high- 
 way crossed the railroad track, and where the accident hap- 
 pened, was a difficult place to cross with a loaded team, and 
 that the said A. B. was acquainted with the ])lace and the dif- 
 ficult}^ of crossing, then he was bound to use reasonable care 
 and caution to avoid injury, and that the degree of care and 
 caution reqinrcd of him was such as would have been reason-
 
 408 NEGLIGENCE. 
 
 ably proportionate to the known difficulty and danger in 
 crossing. 
 
 § 33. Contributory Negligence — Gross Negligence. — The jury 
 are instructed, that if" they believe, from the evidence, that 
 the said A. B. was guilty of negh'gence, which materially con- 
 tributed to the accident, by driving upon tiie track of the rail- 
 road without lirst looking and listening to see if a train was 
 approaching, then the defendant cannot be found guilty in 
 this case, unless the jury believe, from the evidence, that the 
 defendant's servants were guilty of gross negligence, which 
 caused the accident. And the jury are instructed, that in this 
 connection gross negligence means a willful act or ouiission, or 
 one which shows a reckless disregard of life or ])roperty. 
 
 The court further instructs the jury, that while a traveler 
 on the highway is not required to leave his wagon, or to use 
 any other unusual means to discover an approaching train, he 
 cannot voluntarily close his eyes to danger, or needlessly ex- 
 pose himself to it, and then claim compensation for an injury 
 thus received. And if the jury believe, from the evidence, 
 that the said A. B., if he had looked, could have seen the 
 approaching train, for a distance of, etc., before the train 
 reached the crossing, and that either he did not look, or else 
 paid no attention to the train, but went upon the track while 
 the train was approaching, and so near to the crossing as to 
 cause the accident, then he was guilty of gross negligence, and 
 cannot recover in this suit. liockford, etc., Rd. Co. vs. Byam^ 
 80 Ilk, 528; Benton vs. Cent. Ed. Co.,^^ la., 192; Cleveland, 
 etc., Rd. Co. vs. Elliott, 28 Ohio St., 3i0 ; Fletcher vs. Atlan- 
 tic^ etc., Rd. Co., 64 Mo., 484. 
 
 If the jury believe, from the evidence, that the defendant's 
 employes sounded the whistle, or rung the bell of the engine 
 for {eighttj) rods before reaching tlie crossing, and used all sucli 
 ordinary care and diligence as is generally used by careful and 
 skillful engineers, brakemen, and emploj-es of railroad compa- 
 nies under like circumstances, and if the jury further believe, 
 from the evidence, that the said A. B. was sitting on his 
 wagon, with his back turned in the direction of the approach- 
 ing train, so as to jirevent his seeing it, and that he could have 
 seen the train in time to avoid the injury if he had turned and
 
 EAILEOADS. 409 
 
 looked in the direction of the approaching train, then the jury 
 must find the defendant not guilty. 
 
 The court instructs the jury, as a matter of law, that it was 
 the duty of the deceased, in approaching the raih-oad crossing, 
 to have exercised that degree of care and prudence for his 
 personal safety, which an ordinarily prudent man would do, 
 and if the jury believe, from the evidence, that the deceased, 
 by the exercise of that degree of care and prudence, could 
 have discovered theapproaciiing train in time to stop his team 
 and avoid the collision, then the plaintilf cannot recover, un- 
 less the jui-y find, from the evidence, that the Injury was 
 caused by the willful conduct of the person in charge of the 
 engine, or by conduct so utterly reckless as to show an utter 
 disregard for the life of the deceased. 6'., B. cL- Q. Rd. Co. 
 , vs. Lee, 68 111., 576. 
 
 The defendant's servants in charge of the engine which 
 struck the deceased had a right to assume that he was rational, 
 and would exercise reasonable care and caution to keejj him- 
 self out of danger until they saw something in his conduct 
 which jvas inconsistent with such assumption. And if the 
 jury believe, from the evidence, that when the persons in 
 charge of the engine first came in sight of the deceased, ho 
 was so far removed from the track as to be free from danger 
 of collision, then they had a right to assume that he would re- 
 main at such safe distance, unless there was something in the 
 circumstances calculated to rebut such presumption, or until 
 he manifested a purpose to place himself in a dnngerous posi- 
 tion. Chicago, B. I. <& P. Ed. Go. vs. Austin, 69 111., 426. 
 
 § 34. Negligence per se in Traveler. — The court instructs the 
 jury, as a matter of law, that it is not the exercise of ordinary 
 care and prudence for a person to drive with a team directly 
 onto a railroad crossing, without making an effort, by stop- 
 ping or listening, or otherwise, to ascertain whether a train is 
 approaching, or whether it is safe to drive onto the track 
 with his team. 
 
 The jury are instructed, that ordinary care and caution is 
 that degree of care and caution which persons of common 
 pn-udence are accustomed to exercise for their own safety, 
 and in this case the driver was bound to use that de^jree of care
 
 410 NEGLIGENCE. 
 
 and caution to avoid injury; and if the jury believe, from tlie 
 evidence, that by the exercise of that degree of care and cau- 
 tion on his part, the injury complained of might have been 
 avoided, then the plaiutifl" cannot recover in this suit. 
 
 If the jury believe, from the evidence, that the driver of 
 the wagon, before he drove onto the crossing, knew that he 
 was approaching and about to cross the railroad track at the 
 time in question, and that by looking and listening he might 
 have discovered the train in time to have avoided the injury, 
 and he did not make any effort by looking, listening or other- 
 wise, to ascertain whether a train was ap])roaching, but drove 
 dii'ectly onto the track as he approached it, then this was 
 such negligence on his ynvt as will ])revent a recovery by the 
 plaintiff in this suit. Jifl. Co. vs. ElUott, 23 Ohio, 3i0 ; Rd. 
 Co. vs. Crawford., 24 Ohio St., 631; Peiin Co. vs. Hathgab^ 
 32 Ohio St., 66. 
 
 § 35. Coiifliict in Pr?spn?e of Surllen Danger. — The jury are 
 instructed that in the face of sudden, unexpected and deadly 
 danger, a person is not expected or required to be cool and 
 collected, and to act with perfect prudence and deliberate 
 judgment; in such case he is only required to use such degree 
 of prudence and judgment as ordinarily careful and prudent 
 men would be likely to exercise under the same or similar 
 circumstance. And if the jury believe, from the evidence, 
 that the deceased used ordinary care and prudence to avoid 
 accident in ap})roaching the crossing, and that when he be- 
 came aware of his danger, he used such care as men of ordi- 
 nary prudence under like circumstances would be likely to use 
 to avoid or escape injury, then his negligence did not contrib- 
 ute to the injury. Ind. c& St. L. Rd. Co. vs. Stout., 53 Ind., 
 113; C. & N. k R<j. Co. vs. Miller. 16 Midi., 532. 
 
 If the jury believe, from the evidence, that at the time of 
 the accident in question, the plaintiff was seated in his wagon 
 near the track of defendant's road (or as the case may be) and 
 that the servants or agents of defendant were guilty of negli- 
 gence in, etc., and that the plaintiff was thereby put in great 
 danger of life or limb, or liad reasonable ground to believe, 
 and did believe, that he was thereby put in such danger, and 
 that it was necessary to leap from his wagon in order to avoid
 
 EAILKOADS. 411 
 
 the threatened danger, and that in consequence of such belief 
 he did jump from his wagon, and thereby caused the injury 
 complained of, when, if he had remained in the wagon ho 
 would have sustained no injury, this alone would not dej)rive 
 him of the right to recover in this suit, jn-ovided you iind 
 from the evidence, under tlie instruction of the court, that the 
 defendant is otherwise guilty and the i)laintiif otherwise en- 
 titled to recover, Djcr vs. Erie lid. Co.. 71 N. Y., 228 ; 
 JioU vs. JV. Cent. Rd. Co., 16 Ilun, 496; Schultz vs. Chiavjo., 
 etc., Rd. Co., 44 Wis., 638. 
 
 § 36. Damage Must be the Result of the Negligence Chargo;!. — 
 
 Tlie court instructs the jury, that the neglect to sound the 
 whistle or ring the bell of an engine is not of itself such negli- 
 gence as will justify a recovery for damages, to person or pro]-)- 
 erty, injured upon the track. To entitle the plaintiff to re- 
 cover for such injury, it must appear, from the evidence, that 
 the injury was the result of such omission to ring the bell or 
 sound the whistle. Ind. <& St. L. Rd. Co. vs. Blackman, 63 
 111., 117. 
 
 The jury are instructed, that it is not enough to create a 
 liability for injuries caused by a railroad train, to prove the bell 
 was not rung, or the whistle sounded. The jurj' must fui-tlier 
 believe, from the facts and circumstances proved, that the ac- 
 cident was caused by reason of such neglect. 
 
 The jury are insti-ucted, that although they may believe, 
 from the evidence, tliat the {<:oio) in question was killed by the 
 defendant's locomotive, and that there was a failure to ring 
 the bell or blow the whistle, for a distance of {ei(jJit;/)Yo([> be- 
 fore reaching the crossing, still, if the jury fiii'tlier believe, 
 from the evidence, that there was no c<,»nnection bctu-ecn the 
 failure to ring the bell, or blow the whistle, and the killing of 
 the {goio), then the jury should find the defendant not guilty, 
 unless they find, from the evidence, that the injury was occa- 
 sioned by some negligence or misconduct, other than the fail- 
 ure to ring the bell or sound the whistle. 
 
 The jury are instructed, tliat whether the failure to ring 
 the bell, or sound the whistle, on approaching the highway, 
 by the train in question, was, or was not, the cause of the in- 
 jury complained of, is a question of fact, to bo determined by
 
 412 KEGLIGENCE. 
 
 the jury, from a consideration of all the evidence in the case. 
 Illinois Cent. Rd. Co. vs. Benton^ 69 111., 174. 
 
 § 37. Injury to Stock at Crossing. — The jury are instructed, 
 as a matter of law, that it would be gross negligence, in j^ersons 
 in charge of an engine, not to see and observe stock if they are 
 on or near a railroad crossing, at least {^forty) rods before 
 reaching that point, if there was nothing in the way to prevent 
 them seeing, if they had looked. 
 
 And in this case, if the jury believe, from the evidence, that 
 the plaintiff's horse was injured by the defendant's engine, 
 while the horse was on a highway crossing, and that the per- 
 sons in charge of the engine could have seen the horse on the 
 track, or in dangerous proximity to it, in season to have stopped 
 the cars and prevented the injury, and did not see him, or 
 feeing him, in season to have avoided the injury, did not do so, 
 this would be gross negligence, for which the company would 
 be liable, unless the jury believe, from the evidence, that the 
 ])laintitf was himself guilty of negligence, which contributed 
 directly and materially to the injury. C. B. & Q. Rd. Co. vs. 
 Cauffman, 38 111., 424; Wharton on [N'eg., § 397; Parker y&. 
 Railroad, 34 la., 399. 
 
 The court instructs the jury, that in a suit against a railroad 
 company for injuries inflicted at a highway crossing, if it ap- 
 pears, from the evidence, that no bell was rittig, or whistle 
 sounded, for the distance of {eighty) rods before reaching the 
 crossing, and also that the com[mny was guilty of {other neg- 
 ligence), which may have caused the injury; and if it is doubt- 
 ful whether the injury was caused by the failure to ring the 
 bell or sound the whistle, or by {such other negligence), or by 
 both combined, then the company will be liable for the injury; 
 provided, the jury believe, from the evidence, that the injury 
 resulted from either or both of said causes, and that the plaint- 
 iff himself was free from fault or negligence. 
 
 § 38. Neglect to Ring the Bell, etc., Prima Facie Evidence of 
 Negligence. — The jury are instructed, that in a suit against a 
 railroad company for killing stock at a road crossing, an omis- 
 sion, on the part of the comjiany, to ring a bell or sound a 
 whistle continuously for a distance of at least {eighty) rods
 
 RAILROADS. 413 
 
 before reacliing the crossing, if proved, constitutes a prima 
 facie case of negligence against tliecouipanj. Illinois Gent. 
 Rd. Co. vs. Gillis, 68 111., 317. 
 
 § 39. Burden of Proof as to Rina;in? Bell. — The court in- 
 structs the jury, that it is not for the defendant to prove that 
 tlie bell was rung and kept ringing for eighty rods before the 
 engine reached the highway crossing. It is incumbent upon 
 the plaintiff to prove, by a preponderance of the evidence, that 
 said bell was not rung and kept ringing for eiglity rods before 
 the engine reached said crossing. P.^ D. & E. Ry. Co. vs. 
 Foltz, 13 III. App., 53.5. 
 
 The court instructs the jury that it is not for the defendant to 
 show that its engineer and fireman used due care and diligence 
 to avoid injuring the plaintiff's mare. It is incumbent upon 
 the plaintiff to prove by a ]-»re;x)n'loranco of evidence in the 
 case, that said engineer and fireman so negligently and care- 
 lessly managed the ti'ain and engine, that said engine ran over 
 said mare, and thereby killed her, 
 
 § 40. Must Exercise Reasonable Care and AVatchfulness to Avoid 
 Ii\juring Stock. — If the jury believe, from the evidence, that 
 the {cmo) in question was killed by a passing train of cars on 
 the defendant's road, and that before she was killed she was 
 in plain view of the engine driver and fireman in charge of 
 the engine, and that she was seen, or could have been seen, by 
 them by the use of ordinary care and attention, in time to have 
 slackened the speed of the train and avoidad the accident, and 
 that no efforts were made by them in that direction, this was 
 such negligence as renders the company liable; provided, the 
 jury find, from the evidence, that plaintiff's own negligence 
 did not contribute to the injury. 
 
 The court instructs the jury, as a matter of law, that a rail- 
 road company is liable for stock killed upon its track, where 
 such killing results from the want of ordinary care and caution 
 in the running of its trains, and the plaintiff's own negligence 
 does not materially contribute to the injury. To render the 
 company liable in such cases, it is not necessary that tlie kill- 
 ing should be wanton'y or willfully done by its servants or em- 
 ployes. Rock ford, R. L & St. L. Rd. Co. vs. Rafferty, 73 
 111., 58.
 
 414: NEGLIGENCE. 
 
 The court instructs the jury, thcat if they believe, from the 
 evidence, tliat the persons in charge of the engine and train 
 of cars in question, by ordinary care, skill and prudence, could 
 have seen the animals, or that they did see them in season, so 
 that by the use of ordinary care and skill, and without danger 
 to the train, they might have stopped the train before striking 
 the animals, and thus avoided the injury, and did not do so, 
 this would be such negligence as would render the defendant 
 liable for the injury and damage sustained by the plaintiff; 
 provided, the jury believe, from the evidence, that the ani- 
 mals were injured, and that plaintiff thereby sustained damage, 
 in manner and form as charged in the declaration; and also 
 that plaintiff's own fault or negligence did not contribute to 
 the injury. T., P. & W. Ed. Co. vs. Bray, 57 111., 514. 
 
 § 41. Speed through Cities and Villa.ges — Limited by Ordi- 
 nance. — The jury are instructed, that when a railroad company 
 runs its trains through a city, incorporated town or village, at 
 a greater rate of speed than is permitted by the ordinance of 
 the city, town or village, and stock is killed by such train while 
 so running, the killing will be presumed to have been done 
 through the negligence of the company. T., P. & W. R. R. 
 Co. vs. Deacon, 63 III., 91; Monahan vs. JxeohuTc, etc., Rd. Co., 
 44 la., 523; Bruslerg vs. Milwaukee, etc., Rd. Co., 50 Wis., 
 231. 
 
 The court instructs the jury, that it is gross negligence on 
 the part of a railroad company to run its trains through a city, 
 incorporated town or village, at a rate of speed prohibited by 
 law; and if a railroad company does so run its trains, and 
 thereby causes the death of a person, who is himself in the 
 exercise of reasonable care and caution to avoid injury, the 
 company will be liable. C. cfc A. Rd. Co. vs. Becker, 84 111., 
 483. 
 
 It is the duty of a railroad company, whose road runs 
 through a city or village, to run its trains while in the city or 
 village at such a rate of speed as to have them under control, 
 60 as to be able to avoid injury to ])ei'sons or property, though 
 there is no ordinance of such city or village on the subject; 
 and if it fail to do so, it will be guilty of negligence. Chi. & 
 Alton Rd. Co. vs. Engle;^4 III., 397. 
 
 The court instructs the jury, that, by the laws of this state,
 
 EAILKOADS. 415 
 
 if a railroad corporation, by its agents or servants, runs an 
 engine, or train of cars, in or through the limits of any incor- 
 porated city, town or village, at a greater rate of speed than is 
 permitted by the ordinance of such city, town or village, then 
 the corporation is liable for all damage done to the person or 
 property of any person injured by such engineer train of cars. 
 
 § 42. Speed, when not Limited by Ordinance. — If the jury 
 believe, from the evidence, that the {colt), when injured, was 
 straying upon the depot grounds and track of the defendant, 
 then it is not material at what rate of speed the cars were 
 running, if within reasonable limits, and the defendant's serv- 
 ants were not guilty of negligence in any other respect. The 
 defendants are not bound to run their cars with reference to 
 the safety of stock straying upon their track. It iiad a right 
 to run its trains at any rate of speed consistent with tlie safety 
 of persons and property rightfully on its cars, or right of 
 way. 
 
 § 43. Rules as to Children — Contributory Negligence. — That a 
 party seeking to recover damages caused by negligence or 
 misconduct of another, if old enough to exercise reasonable 
 care and caution, must show, by a preponderance of evidence, 
 that his own negh'gence or misconduct did not concur with 
 the negligence of the party charged in producing the injury 
 complained of; and if the party injured is not old enough to 
 exercise reasonable care and caution, then it must appear, 
 from the evidence, that the negligence or misconduct of the 
 persons whose care and circumspection, under the circum- 
 stances, should have been exeicised, did not concur with the 
 negligence of the party charged, in producing the injury com- 
 plained of; or else, in neither case, would the comjilaining 
 party be entitled to recover, unless it further appears, from 
 the evidence, that such concuriing negligence was slight, and 
 the negligence of the party charged was gross, as explained in 
 these instructions. City of Chicago vs. Major, 18 111. 349; 
 StiUson vs. E; etc., Rd. Co., 67 Mo., 671. 
 
 Note. — Upon the question, whether the contriltutory negligrence of a 
 parent or guardian can be imputed to a child of tender years, so as to pre- 
 vent a recovery for injuries inflicted upon the child, the authorities are not 
 agreed. See Wharton on Neg., § 310, aud cases there referred to.
 
 416 NEGLIGENCE. 
 
 If the jury believe, from the evidence, that the deceased, 
 at the time of the injury, from his age, required the care and 
 oversight of some older person, in order to insure his personal 
 safety, and, further, that at the time of the injury reasonable 
 care and oversight were not 'exercised by the person having 
 the charge and control of the child, and that such want of 
 reasonable care contributed directly to the injury, then the 
 ])laintiff caimot recover, unless the jury further believe, from 
 the evidence, that such contributory negligence was but 
 slight, and the negligence of the defendant was gross, as ex- 
 ])lained in these instructions. J. M. c& I. Rd. Go. vs. Boioen, 
 40 Ind., 545. 
 
 As pertinent to the question of reasonable care, regarding 
 the child, the jury may consider whether it appears, from the 
 evidence, that he was of such tender years as to need, for his 
 personal safety, the care and oversight of some older person ; 
 and, if the jury so Und, from the evidence, then they should 
 inquire whether it appears, from the evidence, that at the 
 time of the accident some older person was exercising such 
 care and oversight over the person of the child, as ordinarily 
 judicious and careful persons, having the care of children of 
 like age, usually exercise over them. Eocmsville, etc., Rd. 
 Co. vs. Wolf, 59 Ind., 89. 
 
 The jury are instructed, that the rule as to contributive 
 negligence of a child, is that it is required to exercise only 
 that degree of care which a person of that age would natu- 
 rally and ordinarily use, iji the same situation and under the 
 same circumstances. St. Louis., etc., Rd. Co.., vs. Yalirms, 56 
 Ind., 511; McMillan vs. Burlington., etc., Rd. Co.., 46 la., 
 231; Cleveland, etc., Rd. Co. vs. Manson, 31 Ohio St., 451; 
 Chicago, etc., Rd. Co. vs. Murray, 71 111., 601; Baltimore 
 etc., Rd. Co. vs. McDonnell, 43 Md., 534; Gov. St. Rd. Co. 
 vs. Jlanlon, 53 Ala., 70; Isahel vs. Hannibal, etc., Rd. Co., 60 
 Mo., 475. 
 
 Where the parents of an infant or a child, too young to be 
 allowed on the public streets alone, are unable to give him their 
 personal care, but do intrust liim to the care and supervision 
 of a suitable person, the negligence of the latter cannot be im- 
 puted to the parents nor to the child. Waltei's vs. C, R. I. 
 & P. Rd. Co., 41 la., 71.
 
 KAILEOADS. 417 
 
 The jury are instructed, that in determining the relative 
 degrees of care, or want of care, inanifested by the parties, at 
 the time of the injury, tlie age and discretion of the party in. 
 jured are proper subjects of inquiry for the jury. The law- 
 does not require that a child shall exercise the same degree of 
 care and caution as a person of mature years, but only such 
 care and cautiun as a person of his age and discretion would 
 naturally and ordinarily use. Kerr vs. Forgue^ 54 111., 482; 
 Casey vs. N. T. C. R. R. Co., Abb. (N. T.) K Cas., 104. 
 
 If the jury believe, from the evidence, that the deceased, at 
 the time of his death, was between {Jive and six) years of age, 
 and that he went upon the railroad track of the defendant, 
 and that the engineer in charge of the engine in question, 
 through the want of ordinary and reasonable care, skill or at- 
 tention, ran the engine against the deceased and killed him, 
 in manner and form as charged in the plaintiff's declaration, 
 then the plaintiff has a right to recover in this case; provided, 
 the jury believe, from the evidence, that the said deceased, 
 by reason of his tender years, was incapable of exercising any 
 more care or discretion than he did manifest at the time of the 
 accident. 
 
 § 44. Negligence as Regards Children. — The jury are in- 
 structed, that legal negligence is the omission of such care or 
 caution, as persons of ordinary prudence usually exercise or 
 deem sufficient, under the circumstances of the case. And in 
 this case, if the jury believe, from the evidence, that the child 
 in question was injured through the negligence of the defend- 
 ant, as charged in the declaration, then it will be for the jury 
 to determine, from the evidence, whether the parents of the 
 child were in the exercise of ordinary care and prudence, for 
 the safety of the child, regard being had to his age and in- 
 telligence and all the surrounding circumstances. Johnson's 
 Adm'r, etc., vs. Chicago & iT. W. Rway Co., 49 Wis., 529. 
 
 § 45. Master and Servant — Master Liable to Servant, When. — 
 
 The jury are instructed, that a master or employer is bound to 
 use reasonable care, skill and judgment to furnish suitable 
 machinery and implements, properly constructed, and ordi- 
 narily skillful and trustworthy agents or workmen; and if the 
 
 27
 
 418 NEGLIGENCE. 
 
 employer does not nse siicli care, skill and judgment, and in- 
 jury results therefrom to an euiploye, the employer will be 
 liable for such injury. 
 
 "While a master is not an insurer that the servants he em- 
 ploys are skillful and prudent, or that the workmanship or 
 materials employed in his business are absolutely proper or 
 suitable, yet he is bound to use all reasonable care and skill in 
 their selection and construction, so far as regards the safety of 
 the persons in his employ. Shearm. & Red. on Is'eg., § 89-92; 
 JVoyes vs. Smith, 28 Yt., 59; Buzzell vs. Laco'iiia, etc., Co., 48 
 Me., 113; McGatrick vs. ^Yason, 4 Ohio St., 566; Lewis vs. 
 ;^i!;. Louis, etc., Rd. Co., 59 Mo., 496; Baxter vs. Roberts, 44 
 Cal., 187; Acl'erson vs. Dennison, 117 Mass., 407; Strahlen- 
 dorf \s. Rosenthal, 30 Wis., 674; Richardson vs. Cooper, 88 
 111., 270. 
 
 It is the duty of a railroad company, towards those who are 
 in its employ, to have its road, bridgesand other appurtenances, 
 constructed of good and sound material, so far as this is reason- 
 ably practicable, having in view the business done upon the 
 road. In their construction they should equal those of the 
 average roads doing the same class of business, so far as relates 
 to the safety of its employes, and the utmost care and vigi- 
 lance, which is reasonably practicable, must be bestowed by 
 the company to keep them in safe condition. 
 
 § 46. Duty Towards Employes. — The jury are instructed, 
 that it is the duty of a railway company, as employer, to use 
 all reasonable care and foresight to provide safe structures, 
 competent employes, and all appliances necessary to the safety 
 of the employed, and to adojjt such rules and regulations for 
 running its ti'ains as will avoid injury to its employes, so far 
 as this can reasonably be done; and having adopted such rules, 
 to use all reasonable etfoi'ts to conform to them, or the com- 
 pany will be responsible for consequences resulting from a 
 departure from them. (Jhicago, etc., Rd. Co. vs. Taylor, 69 
 111., 461. 
 
 A railroad compan}'^ is bound to use all reasonable precau- 
 tions for the safety of its employes, and should furnish such 
 machinery, and keep it in such condition as would be least 
 likely to cause injuries, so far as this can reasonably be done.
 
 KAILROADS. 419 
 
 It is not, however, bound to tlie exercise of extraordinary 
 care, and is required to furnish such appliances only as are 
 reasonably well calculated to insure the safety of its employes. 
 
 The jury are further instructed, tliat a railroad company, as 
 regards its employes, must use all ordinary care and super- 
 vision to keep its roadway in a good and safe condition; and 
 if its agents, charged with the duty of inspecting and repair- 
 ing its track, have notice of defects in it, or by reasonable care 
 and diligence could have learned them, and omit to make 
 repairs, in consequence of^which an employe is injured, while 
 he is himself using reasonable care and prudence, then there 
 is a want of such care on the ])art of the company as the law 
 requires, and the company would be liable for such injuries. 
 Locl:e vs. Sioux City, etc., Ed. Co., 46 la., 109; LaJce Shore, 
 etCy Ed. Co. vs. Fitzixitrick, 31 Ohio St., 479. 
 
 A railroad company is bound to use all reasonable care and 
 caution to provide suitable and safe material and skillful work- 
 manship in the construction of its road and appurtenances, and 
 to exercise reasonable care and watchfulness, to keep the same 
 in good repair and safe condition, and if the company do not 
 do so, and in consequence thereof an injury happens to one of 
 its servants or employes, while in the exercise of reasonable 
 care and caution himself, the company will be liable for tlie 
 injury thus sustained. Brickman vs. S. C Ed. Co., 8 C. S.? 
 173. 
 
 A railroad company rnust use reasonable care and caution 
 in the selection of its rolling-stock, and in the employment of 
 competent persons to manage its business, so that no unneces- 
 sary risk shall be incurred by any of its servants in the dis- 
 charge of their duties; and if the company does not do so, and 
 an injury happens to one of its servants, by reason of such neg- 
 lect, the company will be liable for the injury thus sustained, 
 provided the person injured is using reasonable care and cau- 
 tion to avoid the injury. 
 
 It is a duty the law imposes upon railroad companies that 
 they shall do everything that reasonably can be done to fur- 
 nish safe cars to its employes, to be used by them in working 
 on the railroad, and it is not a duty that can be delegated to 
 its officers and agents, so as to avoid liability on the |)art of 
 the company.
 
 420 NEGLIGENCE. 
 
 And in this case, if the jury believe, from the evidence, that 
 the company, through the negh'gence and want of reasonable 
 care of its servants and agents, neglected and failed to furnish 
 a safe car upon the occasion in question, but did, through neg- 
 ligence and want of reasonable care and caution, furnish one 
 that was out of repair, as charged in the declaration, and that 
 by reason of such defect the plaintiff [or the deceased), while 
 nsing ordinary care, and in the discharge of his duty, was in- 
 jured {or hilled), then the jury should find the defendant 
 guilty ; provided, they further believe, from the evidence, that 
 the plaintiff {or the deceased) did not know of such defect, and 
 could not have known the same, by the use of reasonable care 
 and caution on his part. Berea S. Co. vs. Kraft, 31 Ohio St., 
 287. 
 
 § 47. Servant Does not Take the Risk of Dangers not Incident 
 to the Business. — The court instructs the jury, that where a 
 servant is injured by something not incident to his employ- 
 ment, but by a temporary peril, to which he is exposed by the 
 negligent act of his employer, without any negligence on the 
 servant's part, he is entitled to recover damages, from the em- 
 ployer, on account of such injury. That when a servant is 
 employed in a business, and at a place not dangerous, and the 
 employer negligently and carelessly creates a peril at the place 
 where the servant is at work, and the servant is injured there- 
 by, then the servant will be entitled to recover for such injury, 
 if he is himself without fault contributing to such injury. 
 Wharton on Neg., § 549 ; Fairhanl-s vs. Haentzsche, 73 111., 
 236; Q. 31. Co. vs. Kitts, 42 Mich., 34. 
 
 § 48. Servant not Bound to Inquire, etc. — The jury are in- 
 structed, that an em})loye of a railroad company, assisting in 
 running its trains, is not bound to know or inquire whether the 
 road has been safely and properly constructed. 
 
 There is an imj^lied undertaking on the part of the com- 
 pany, with its employes, that all that can reasonably be done 
 to render the road safe, has been done. C. <& JV. W. Rd. Co. 
 vs. Sweet, 45 111., 197. 
 
 § 49. Negligence of the Company in Employing Servant. — T])o
 
 EAILROADS. 42 1 
 
 jury are instructed, as a matter of law, that if a servant of a 
 railroad company, while himself using reasonable care and 
 caution, to avoid injury, be injured through the incomi)etency 
 and unskillfulness of a fellow servant, or in consequence of 
 defects in the machinery or track, and tlie jury believe, from 
 the evidence, that the company was guilty of a want of ordi- 
 nary care and attention in the employment, or in the retention 
 of such fellow servant, or in the construction or repair of its 
 machinery or track, the comi:»any will be liable in damages, 
 which result from such negligence, if any such damage is 
 proved. Haurathj vs. N. C. Ed. Co., 46 Mo., 280 ; Ilarkins 
 vs. Standard, etc., 122 Mass., 400; Iluiitiiig, etc., Rd. Go. vs. 
 Decker, 84 Penn. St., 419. 
 
 § 50. Reasonable Care Only Required for Safety of Employes. — 
 
 As respects the duty of a master or employer towards a serv- 
 ant or employe, in his service, the court instructs the jury, 
 as a matter of law, that the master, or employer, is not bound 
 to provide machinery which is absolutely safe. The law im- 
 poses on the master, or emploj^er, only the obligation to use 
 reasonable and ordinary care, skill and diligence, in procuring 
 and furnishing suitable and safe machinery. Wharton on ^q^., 
 % 205; Wright vs. The N. T. Gent. Ed. Go., 25 Is". Y., 562; 
 Cooley on Torts, 557; Ladd vs. New Bedford, etc., Rd. Go., 
 119 Mass., 412; Indianapolis, etc., Rd. Go. vs. Love, 10 Ind., 
 554; I'ort Wayne, etc., vs. Gildersleeve, 33 Mich., 137; Gauij) 
 Point, etc., Go. vs. Ballou, 71 111., 417. 
 
 The court instructs the jury, that no person, or cor])oration, 
 is responsible for injuries to an employe, occasioned by the 
 carelessness, negligence or unskillfulness of a fellow servant, 
 engaged in the same line of service; provided the emi^loyer 
 has taken proper care and caution to engage proper servants 
 to perform the duties assigned to them. Nor is the em ])1 oyer 
 liable for injuries thus sustained, if the person injured was, 
 while engaged as such servant, acquainted with the character 
 of such fellow servant for capacity, prudence and skill. 
 
 The rule of law is, that when a person engages in the serv- 
 ice of another, he undertakes, as between himself and his em- 
 ployer, to run all the ordinary risks incident to such service; 
 and this includes the risk of occasional carelessness, negligence
 
 422 Nl:G^IGK^'OK. 
 
 or unskillfulness on the part of liis fellow sorvant? CTigapfcd in 
 the same line of duty and service; provided, the employe]- has 
 exercised reasonable care and caution to engage competent and 
 careful persons to discharge the duties assigned to them. 
 Smith vs. Lowell Mfg. Co., 124 Mass., 114. 
 
 § 51. Employe Assumes all Ordinary Risks.-- TiiC jury arc 
 instructed, that where a person enters into the service of a 
 railroad company, he thereby undertakes to run all the ordinai-y 
 risks incident to the employment, including his own negli- 
 gence or unskillfulness, and that of his fellow servants, who 
 &,re engaged in the same line of duty, provided the company 
 has taken reasonable care and precaution to engage competent 
 servants to discharge the duties assigned to them. T.^ W. cfc 
 W. Rd. Co. vs. DurUn, 76 Ilk, 395, 
 
 The jury are instructed, that a servaiit, when he engages in 
 a particular employment, is presumed to do so with a knowl- 
 edge of, and a taking of the risks of its ordinary hazards, 
 whether from the carelessness of fellow servants in the same 
 line of employment, or from latent defects in the machinery 
 and appliances used in the business, or the ordinary dangers 
 in the use of the same. 
 
 If the jury believe, from the evidence, that the plaintiff (or 
 deceased) was engaged in the employment of the defendant 
 when he was injured, and that such injury was received while 
 in the discharge of his duty as such employe; and if the jury 
 further believe, from the evidence, that such injury was 
 occasioned either by his own negligence, carelessness or want 
 of skill, or by that of his fellow servants, engaged in the same 
 line of duty or service, as explained in these instructions, then 
 the jury should find for the defendant; provided, they further 
 believe, from the evidence, that the defendant was not guilty 
 of any lack of care or prudence in selecting or retaining such 
 fellow servants, to discharge the duties assigned to them. 
 
 The jury are instructed, that where an employment is 
 attended with danger, a servant engaging in it assumes the 
 hazard of the ordinary perils which are incident to it; and if 
 he receives an injury from an accident, which is an ordinary 
 peril of the service undertaken by him, he cannot I'ecover 
 damages for such injury. T., W. <& W. Rd. Co. vs. Black, 88 
 111., 112.
 
 EAILEOADS. 423 
 
 § 52. Servant Having Knowledge of Defects. — The jury are 
 fiirtlicr instnu-tcd, as a matter of law, that an employe of a 
 raih'oad company caimot reco\er from the comj)auy for an 
 injury sulTored in tlie course of the business about which he is 
 emp]o3'ed, from defective machinery nsed tlierein, or from the 
 dangerous condition of the track, after he has knowledge of 
 such defect or dangerous condition, and continues his work 
 without objection. C. & A. Rd. Co. ys. Munroe^ 85 111., 25; 
 Fort Wayne, etc., led. Co. vs. Gildersleeve, 33 Mich., 133; 
 Jolinmn vs. ^Vestern., etc., Rd. Co.., 55 Ga., 133; Way vs. Rl. 
 Cent. Rd. Co., 40 la., 341 ; S— vs. Ward, 40 Mich., 420. 
 
 The jury are instructed, as a matter of law, that it is the 
 duty of one in the employ of a railroad company, to see that 
 the machinei-y which he uses is in rejiair, so far as this can be 
 done by the exercise of such care and prudence as would be 
 exercised by a prudent and careful man engaged in the same 
 business; and when such machinery is found to be out of 
 repair, to report the fact to the company; and if he does not 
 do so. it is negligence on his part, and tlie company will not 
 be liable for any injury sustained by him, occasioned by such 
 machinery being out of repair. T., W. <& W. Rd. Co. vs. 
 Eddy, 72 111., 138; Cent. Rd. Co.y^. Kemiey, 58 Ga., 485. 
 
 The jury are instructed, that if a servant discovers that 
 machinery, used in the line of his emi)loyment, is out of order, 
 and dangerous to himself, and he does not stop using the 
 same, and give notice thereof to his employer, or his agents, 
 and wait until it is put in proper condition, but continues to 
 use it, and is injured by reason of its being in such unsafe 
 condition, then the employer will not be liable for the injury, 
 if he is otherwise without fault. Richardson vs. Coo^per^ 88 
 111., 270. 
 
 § 53. Servant Must use Reasonable Care and Caution. — It is the 
 duty of the servants of the company to use all reasonable care 
 and diligence to see that the machinery used by tliem in the 
 performance of their duties, is in fit condition for use, and re- 
 port the defects, if any, to the company, and if they do not do 
 so, it 'will be negligence on their part. C. & N. . Rd. Co, 
 vs. Jackson, 55 111., 492; Lumley vs. Caswell^ 47 la., 159. 
 
 The jury are instructed, that although machinery furnished
 
 424 NEGLIGENCE. 
 
 by a railroad company, for tlie use of its employes, may be un- 
 safe, yet if an employe, knowing the character of the machinery, 
 continues to use it, he is bound to exercise care and caution, 
 reasonably commensurate with the apparent danger, and if he 
 fails to do so, and is injured, -his negligence will preclude a 
 recovery against the company, on account of such injury, jf'., 
 IF. (& W. Ed. Co. vs. Ashbury, 84 111., 429. 
 
 § 54. Negligence of Fellow Servant. — The jury are instructed, 
 that the rule of law, that an action will not lie by a servant 
 against his master or employer, for an injury sustained through 
 the negligence or default of a fellow servant, applies only to 
 cases where the injuries complained of occur without the fault 
 of the employer, either in the act which caused the injury, or 
 in the employment of the person who caused it. 
 
 While it is true that a common emploj^er is not responsible 
 to a servant for an injury caused by the negligence of his fel- 
 low servant, engaged in the same line of employment, yet it 
 is the duty of the employer to use all reasonable care, caution 
 and prudence to provide safe structures, competent employes, 
 and all appliances necessary to the safety of the employed, and 
 to adopt all reasonable rules and regulations to avoid injuries 
 to the employed, and, having adopted such rules, to conform 
 to them, or be responsible for consequences resulting from a 
 departure therei'rom. Chicago (& iV. W. Rd. Co. vs. Taylor, 
 69' 111., 4G1. 
 
 The master docs not warrant the cc'mpetency of his servants 
 to the other servauts. The exteut of the master's undertak- 
 iug is, that he will exercise reasonable care in the selection of 
 an employe, and if his incomjietency is discovered, will 
 dismiss him from service. The master will be liable, where 
 the injury is imputable to his negligence, in the selection of 
 the servant, or in retaining him after his incompetency is 
 known. Colurnbus, C. c& I. Cent. Ed. Co. vs. Troesch, 68 
 111., 545. 
 
 § 55. Fellow Servants Defined. — That when the employment 
 of a person working for a railroad comj)any is in a different 
 department of labor from other servants, and when he is not 
 associated with such other servants in the performance of their
 
 RAILROADS. 425 
 
 respective duties, but is wholly sej^arated and disconnected 
 from them, in the performance of his duties, then the railroad 
 company is liable for the nef^ligence of such other servant, if 
 proven, and it results in injury to the person so employed, 
 without his fault. Schroeder vs. Md. Co., 47 la., 375; Lom- 
 bard vs. Ed. Co., 47 la., 494. 
 
 If the jury believe, from the evidence, that at the time of 
 the accident complained of, the plaiutilf was in the employ of 
 the defendant, as brakeman on one of its freiffht trains, and 
 that while so employed, and in the line of his duty, he received 
 an injury, resulting from a defective brake on one of defend- 
 ant's cars, and that there were other persons in the employ of 
 the company, whose duty it was to examine the cars and see 
 th-it the brakes were in good repair and safe condition, then 
 the court instructs the jury, as a matter of law, that the i)laint- 
 iff and such other persons were not fellow servants engaged 
 in the same grade or line of service, within the meaning of 
 the law. Long vs. P. Ed. Co. 65 Mo., 225; Nashville Ed- 
 Co. vs. Jones, 9 Heisk., 27. 
 
 If the jury believe, from the evidence, that at the time of the 
 accident in question, the plaintiff was in the employ of the de- 
 fendant as fireman on one of its locomotives, and that while so 
 employed, and in the line of his duty, he received an injury, 
 resulting from the negligence or want of ordinary care and 
 skill of the engineer in charge of the same locomotive, then 
 the court instructs the jury, as a matter of law, that the plaint- 
 iff and engineer were fellow servants, engaged in the same 
 grade or line of service, within the moaning of the law, and 
 the defendant, if otherwise without fault, would not be liable for 
 such injury. Yaltez vs. O. & M. Ed. Co., 85 111., 500; Lehigh 
 ■ Valley Co. vs. Jones, 89 Penn. St., 432; Beselvs. N~. Y.,etc., 
 Ed. Co., 70 IST. Y.,171; Eagsdale vs. Memjjhis, etc., Ed. Co., 
 59 Tenn., 426. 
 
 If the jury believe, from the evidence, that, at the time of 
 the accident in questio^i, the plaintiff was in the employ of the 
 defendant coni|)any as a brakeman on one of its trains, and 
 that while so employed he received an injury which was occa- 
 sioned by the ties on the track, at the point where the acci- 
 dent occurred, being rotten and unfit for use, and that the fail- 
 ure to replac/j such ties with sound ones resulted from the
 
 426 NEGLIGENCE. 
 
 neo;ligence of the road master and section men having diarge 
 of that part of the road, and that the plaintiff was himself 
 guilt}'' of no negligence contributing to the injury, then the 
 plaintiff has a right to recover. Houston, etc., Rd. Co. vs. 
 Dunham, 49 Tex., 181. 
 
 Although the jury may believe, from the evidence, that at 
 the time of the accident in question, the {Jjrcike) was defective 
 and that the injury complained of resulted therefrom, still, if 
 the jurj' further believe, from the evidence, that none of the 
 officers or agents of the company knew of the defect, and 
 that it was of such a character that it could not be discovered 
 by the exercise of reasonable and ordinary care in that behalf, 
 then the company would not be liable for such injury. Cen- 
 tral Rd. Co. vs. Kenney, 58 Ga. 
 
 If the jury believe, from the evidence, that at the time of 
 the accident in question the plaintiff was in the employ of the 
 defendant corporation as a mechanic engaged in the repairs 
 of its cars, and that, while so employed and in the line of his 
 duty, he received an injury, resulting from the negligence or 
 want of ordinary care and skill of an engineer, in charge of a 
 locomotive engaged in switching cars, then the court instructs 
 the jury, as a matter of law, that the said plaintiff and the said 
 engineer were not fellow servants engaged in the same grade 
 or line of service, and tlie plaintiff is entitled to recover in 
 this suit, provided the jury further believe, from the evidence, 
 that the plaintiff", at the time of the injury, was exercising 
 reasonable care and caution to avoid such injury. Pittsburg, 
 etc., Rd. Go. vs. Powers, 74 111., 311; ConU a: Sullivan vs. 
 Toledo, etc., Rd. Co., oS Ind., 26. 
 
 Negligence of Defendant and of Fellow Servant. — If the jury be- 
 lieve, from tlie evidence, that the defendant was guilty of neg- 
 ligence, as charged in the declaration, and that the plaintiff by 
 reason thereof was injured and damaged as claimed by him, 
 and that he himself was guilty of no want of ordinary cai-c 
 that contributed to the injury, then the defendant is liable in 
 this action, although you may further believe, from the evi- 
 dence, that the negligence of a fellow servant contributed to 
 such injury. In such cases the rule of law is that contributory 
 negligence to defeat an action must be that of the plaintiff' or
 
 KAILROADS. 427 
 
 of some person for whose acts lie is responsible. Shetter vs. 
 C. d: i\^. W. Rd. Co., 49 Wis., 509. 
 
 § 56. • Duty to make Proper Rules for Safety of Servant. — That 
 it is the duty of a railway company to make all reasonable and 
 proper regulations for the safety of its employes. And thid 
 being an affirmative fact, it devolves upon the company to 
 show an observance of the duty when sued by a servant for 
 an injury received when in its service, and negligence is shown. 
 Sheai-m. & Ked. on Neg., § 93. 
 
 A railroad company is not liable for an injury which liap- 
 pens to an employe in consequence of a disregard of its plain 
 instructions, if known to the person injured, although other 
 employes also disregard the same instructions. Wolsey vs. 
 Railroad Qo., 33 Ohio St., 227. 
 
 If the jury believe, from the evidence, that the defendant, 
 before the injury in question, had adopted a rule for the con- 
 duct of its employes requiring them, etc., and that the plaint- 
 iff had knowledge of such rule, but neglected to avail himself 
 of its ]irovisions, and in consequence of such neglect sustained 
 the injury complained of, then he cannot hold the defendant 
 liable therefor. Ihid. 
 
 The defendant had the right to make such rules and regu- 
 lations for the conduct of its servants and agents, while en- 
 gaged in its service, as in its judgment was reasonable and 
 proper, or would conduce to the safety and comfort of its em- 
 ployes; and all servants, while engaged in such service, with a 
 knowledge of such rules and legulations, are bound to act in 
 conformity therewith; and if injuries are sustained by them, 
 while acting in violation thereof, no recovery can be had of 
 the defendant therefor if such violation was the cause of, or 
 materially contributed to, such injury. "Whether, before tlie 
 injury complained of, the defendant in this case had adopted 
 a rule requiring, etc., and whether the plaintiff had knowledge 
 of such rule, and whether he was violating such rule when he 
 was injured, and whether, if he was so violating it, such vio- 
 lation contributed to the injur^^, are questions of fact, to be 
 determined by the jury from the evidence. Ihid.
 
 CHAPTER XXXV. 
 
 NEGOTIABLE INSTRUMENTS. 
 
 Sec. 1. Presumption in favor of the holder. 
 
 2. The presumption can only be overcome by proof. 
 
 3. Innocent purchaser — Taken as security. 
 
 4. Note taken in payment or part payment, etc 
 
 5. Assignee with notice from assignee without notice. 
 
 6. Indorsement in blank. 
 
 7. Assignee after maturity. 
 
 8. Assignee without consideration. 
 
 9. Assignee before maturity without notice, etc. 
 
 10. Burden of proof. 
 
 11. Assignee with notice of suspicious facts. 
 
 12. Who is deemed a bona _fide holder. 
 
 13. Assignee with knowledge. 
 
 GUAKA.NTOR OF COLLKCTION — INDORSER OK A.SSIGNOK ILLINOIS. 
 
 Sec. 14. Liability fixed by statute— Illinois. 
 
 15. Intention does not govern. 
 
 16. Due diligence defined. 
 
 17. Suit unavailing — Due diligence defined. 
 
 18. Part of note collectible against uiaker. 
 
 19. Maker removed from the State. 
 
 20. Insolvency of maker. 
 
 21. Execution returned — No property found. 
 
 22. Insolvency may be proved by other evidence. 
 
 23. Return of the officer not conclusive. 
 
 24. Execution for justice, no evidence as to real estate. 
 
 25. Possession of persona! property, no evidence of ownership. 
 
 GUARANTOK OF I'AYMKiS'T. 
 
 26. Guarantor — Liability generally. 
 
 27. Name of a third person on the back of the note — Presumptions. 
 
 28. Liable until the note is paid. 
 
 29. Delay will not release. 
 
 30. Consideration for guaranty. 
 
 31. Release of guarantor or surety by alteration of the note. 
 
 32. Extending time — Release of guarantor. 
 
 33. Subsequent promise to pay. 
 
 INDORSER. 
 
 34. Demand of payment and notice. 
 
 (428)
 
 NEGOTIAliLE INSTRUMENTS. 429 
 
 35. Failure of consideration — Burden of proof. 
 
 36. Considpration, when presumed. 
 
 37. Abandonment of claim a good consideration. 
 
 38. Disputed claim must be sustainable. 
 
 39. Want of consideration. 
 
 40. Note obtained by fraudulent representations. 
 
 41. Representations must be material. 
 
 42. Note obtained by fraud and circumvention. 
 
 43. Note void by fraud and circumvention. 
 
 44. Fraud in the consideration not sutlicient. 
 
 45. Signing without reading. 
 
 46. Mistake as to legal effect. 
 
 47. Reasonable care, what. 
 
 48. Must use reasonable care to avoid imposition. 
 
 49. Burden of proof. 
 
 50. Fraud may be waived. 
 
 51. Note stolen or wrorgfully obtained. 
 .52. Duress — Abuse of criminal process. 
 
 53. Lawful imprisonment not duress. 
 
 54. Giving note not payment. 
 
 55. New party — New consideration. 
 
 § 1. Pre.sum|)tions in Favor of the Holder. — The court in- 
 structs the jury, that the possession of a note, indorsed in 
 blank, unaccompanied by any declaration or other evidence in 
 regard to it, is prima facie evidence that the holder is the 
 owner of it; that he took it for value before it became due, 
 and in the regular course of business. 1 Pars, on Notes and 
 Bills, 255; Fettee vs. Proiit, 3 Gray, 502; Warren vs. Gil- 
 man, 15 Me., YO; Dugan vs. U. S., 3 Wlieat., 172; Kelhj vs. 
 Ford^ 4 la., 140; Goodman vs. Shnonds, 20 How., 343; Cook 
 vs. Helms, 5 Wis., 107; Farwell vs. Myers, 36 III, 510; 
 tStoddard vs. Burton, 41 la., 582. 
 
 That the indorsee of a promissory note, in the absence of 
 proof to the contrary, is presumed in law to have taken it in 
 due course of trade before maturity, for value and in good 
 faith. 
 
 When a note is indorsed without date, the presumption of 
 law is, in the absence of proof to the contrary, that it was in- 
 dorsed before it became due. 
 
 When the assignment of a promissory note is without date, 
 the law raises a presumption tliat the transfer was made before 
 the maturity of the note, and to rebut this presumption the 
 burden of proof is upon the person alleging tliat the note was 
 assigned after maturitv. Richards vs. Betzer, 53 111., 466.
 
 420 NEGOTIABLE INSTKUMENTS. 
 
 § 2. Presumption can only be Overcome by Proof. — A person 
 questioning tha good faith of the assignment of a note in the 
 hands of an assignee, in order to defeat a recovery, must prove, 
 by a preponderance of evidence, that the assignment was made 
 after the maturity of the note, or that it was not made for 
 vahie, or that the transaction was for some fraudulent purpose; 
 or tliat the assignee took the note with notice of the defeuse 
 interposed by the defendant. 1 Pars, on N, & B., 255; Cook 
 vs. Helms, 5 Wis., 107; Dejpuy vs. Schuyler^ 45 111., 306. 
 
 The c >urt instructs the jury, that the note introduced in evi- 
 dence is sufficient j-jirm^ facie evidence to entitle the plaint- 
 ifE to recover the full amount thereof, principal and interest, 
 according to the terms of the note, less the credits indorsed 
 thereon. 
 
 If you believe, from the evidence, that the note in qnestion 
 was assigned and indorsed by the payee thereof, to the plaintiff; 
 and if you also find that there is no evidence that it was 
 assigned after maturity, or that the plaintiff took it with notice 
 of the alleged defense thei-eto, or that it was so assigned with- 
 out consideration, then the law will presume that it was in- 
 dorsed to plaintiff" before it was due; that he paid a valuable 
 consideration therefor, and that he had no notice of any 
 defense to the said note. 
 
 § 3. Innocent Purchaser — Taken as Security. — The court in- 
 structs the jury, that the indorsee of a promissory note, before 
 its maturity, taking it as security for a pre-existing debt, in 
 the ordinary course of business and without any express agree- 
 ment, is deemed a holder for a valuable consideration, and he 
 will hold the note free from defenses on the part of the maker, 
 of which he had no notice at the time of taking it. 1 Par- 
 sons on N. & B., 218; Bowman vs. Millison^ 58 III., 36; 
 Carlisle vs. Wishart, 11 Ohio, 172; Outiorite vs. Porter, 13 
 Mich., 533; Stevens vs. Campbell, 13 "Wis., 375; Contra: 
 Stalker vs. McDonald, 6 Hill, 93; Cook vs. Helms, 5 Wis., 
 107; Grimm vs. Warner, 45 la., 106. 
 
 § 4. Note Taken in Payment or Part Payment, etc. — If the 
 
 jury believe, from the evidence, that before the alleged trans- 
 fer of the note, the said A. B. {payeS) was indebted to the
 
 NEGOTIAHLE INSTRUMENTS. 431 
 
 plaintiff, and tluit the said note was assif^ned to tlie plaintiff 
 by the said A. B. in {part) payment of such an indebtedness, 
 then the plaintiff is what is known in law as an innocent pur- 
 chaser of the note; provided, the jury further believe, from 
 the evidence, that he took the note in good faith before it 
 became due, and without any notice of the alleged defense 
 thereto. Clary vs. Sarrency, 58 Ga., 83. 
 
 § 5. Assignee with Notice from an Assignee witliout Notice. — 
 
 The court instructs the jury, that if a note is assigned before 
 maturity, for vahie, to a honafide purchaser, without notice, the 
 assignee will be protected against any defense by the maker; 
 and a subsequent purchaser of the note from such assignee, 
 even with notice, will succeed to his rights in the same condi 
 tion he held them. A defense to the note having been once 
 cut off by its transfer to an innocent holder, will not be re 
 vived by a subsequent assignment to a person with notice of 
 such defense. Woodioorth vs. Hantoon, 40 111., 131. 
 
 The law is, that the holder, for value, of a negotiable note, 
 may recover on the note, though he was fully informed, when 
 he received it, that it was obtained from the maker by fraud; 
 provided, such holder obtains it from a person who took the 
 note, in the usual course of business, in good faith and for 
 value. Riley vs. ShawaoJcer, 50 Ind., 592. 
 
 § 6. Indorsement in Blank. — A note is said to be indorsed 
 
 in blank when the indorser's name is written on the back, 
 leaving a blank over the name for the insertion of the name 
 of an indorsee, or person to whom it is indorsed. And when 
 the indorsement remains in blank, the n®te may be passed 
 from person to person by mere delivery, and the last holder- 
 has the riofht to till in his own name as indorsee, and brino- 
 suit on the note in his own name, as though it had been 
 indorsed directly to him in the first instance. 2 Parsons on 
 Notes and Bills, 19, 20; Palmer vs. Marshall, 60 111., 289. 
 
 § 7. Assignee after Maturity. — An assignee of a promissory 
 note, who takes it after maturity, is supposed to have notice 
 of any defense that exists against it; and such defense may 
 be made as effectually against the note in the hands of such
 
 432 NEGOTIABLE INSTRUMENTS. 
 
 assignee as if the suit had been brouglit by the original payee 
 of the note. Davis vs. Neleigh, 7 Neb., 78. 
 
 § 8. Assignment without Consideration. — The jury are in- 
 structed, that when a promissory note is assigned without any 
 consideration therefor, the assignee takes it as a mere volun- 
 teer, and holds it subject to all its infirmities, the same as 
 if he had had actual notice of them at the time of the assign- 
 ment, or as if the note had been assigned to him after its 
 maturity. 1 Parsons on Notes and Bills, 262. 
 
 § 9. Assignee before Maturity witliont Notice, etc. — Tlie 
 court instructs the jury, as a matter of law, that the consider- 
 ation of a negotiable note cannot be imj:)eached in the hands 
 of an innocent purchaser, for value, who has received it in 
 good faith before ii b3cam3 due, without any notice of such 
 defense. 
 
 § 10. Burden of Proof. — If the jury believe, from the evi- 
 dence, that the defendant made the note in question, then, 
 under the issues in this case, the defendant assumes the burden 
 of proving, by a preponderance of evidence, not only that 
 the consideration of the note has failed in part {or has wholhj 
 failed), as alleged in his pleas, but also that the plaintiff took 
 the said note after it became due, or without pajnng any con- 
 sideration therefor, or that he had notice of the alleged fail- 
 ure of consideration at the time he purchased the note, if it 
 appears, from the evidence, that he did purchase it. 
 
 § 11. Assignee with Notice of Suspicious Facts. — The court 
 instructs the jury, that where a i^erson takes an assignment of 
 a promissory note for a vahiable consideration, before due, 
 and is not guilty of bad faith, even though he may be guilty 
 of gross negligence, he will hold it by a title valid against all 
 the world, and it will not be subject to the defense of a fail- 
 ure of consideration in his hands. Lafayette Sav. Bk. vs. St. 
 Louis, 4 Mo. A pp., 270. 
 
 A party who takes commercial paper, by indorsement be- 
 fore due, without knowledge of any defects of title or defense 
 lo it, and for a valuable consideration, will take a good title
 
 KEOOTIAIJLE INSTRUMENTS, 433 
 
 unaffected by any defense goincj to the consideration. Sus- 
 picion of the defect of title, or knowledge of circumstances 
 which would excite suspicion in the mind of a prudent man, 
 will not defeat his title, or let in a defense not otherwise ad- 
 missible against it in his hands. That result can only be pro- 
 duced by bad faith on his |;art. ComMock vs. TLmnah, 76 111., 
 531 ; Edwd. on B. & N., 318 ; Goodman vs, Uarmy, 4 A. & E. 
 870 ; 1 Pars, on N. & B., 258 ; Goodman vs. SimondSj 20 
 How., 343-363 ; Farrell vs. Lovett, 68 Me., 326. 
 
 Although the assignee of a note may have reason to know, 
 or may actually know, whon he buys it, for what the note was 
 given, that fact alone will not make him chargeable with 
 knowledge of special defenses to it; and in this case, although 
 the jury may believe, from the evidence, that the plaintiff 
 knew when he purchased the note that it was given for, etc., 
 yet, if the jury further believe, from the eviden-3, that he had 
 no notice of the special defense now set np by the defendant, 
 and had no reason to suspect it, he will not be chai'geable with 
 notice of the same ; nor can he be affected with such de- 
 fense in this suit; provided, the evidence shows that the said 
 note w^as assigned to him in good faith for a valuable considera- 
 tion, before the maturity of the note. Borde^i vs. Clarh^ 26 
 Mich., 410, 
 
 § 12, Who Deemed a Bona Fide Holder. — A holder of negoti- 
 able paper, who takes it before maturity, for a valuable con- 
 sideration, in the usual course of business, without knowledge 
 of facts which impeach its validity, as between antecedent 
 parties, is deemed a hona fide holder, Crosby vs. Tanner, 40 
 la., 136; Twdchell vs, McMuHrie, 77 Penn. St., 383, 
 
 In order to defeat a promissory note in the hands of a hona 
 fide holder, it is not enough to show that he took it under cir- 
 cumstances calculated to excite suspicion. To defeat the note 
 in his hands it must appear, by a preponderance of evidence, 
 that he was guilty of a want of honesty, or of bad faith in 
 acquiring it, Johnson vs. TFc///, 27 Ohio St., 374; Shreeves 
 YB. Allen, 79 111., 553; Hamilton vs. Marls, 63 Mo., 167; 
 Moorehead \?,. Gilmore, 77 Penn. St., 118, 
 
 The jury are instructed, that a party about to take an assign- 
 ment of a promissory note, is under no obligation to call upon 
 28
 
 434 NEGOTIABLE lASTEUMENTS. 
 
 the maker and make inquiry as to possible defenses, wliicli he 
 may have, but of which the purchaser has no notice, either 
 from something appearing on the face of the paper, or from 
 facts communicated to him at the time. Houry vs. Ejpjpinger, 
 o4 j\[icli., 29; Murray vs. Beckiaith, 81 111., 43. 
 
 § 13. Assignee with Knowledge. — If the jury believe, from 
 th3 evidence, that the ]:)]aintiff, before he purchased said note, 
 knew, or, as an ordinarily prudent man, had reason to believe, 
 from circumstances brought to his knowledge, before he pur- 
 chased it, that the defendant had, or claimed to have, a defense 
 to said note, or to some part of it, then the plaintiff is not an 
 innocent liolder of said note. 1 Pars, on ]^. &B., 258; Edwd. 
 on B. & N., 320. 
 
 If the jury believe, from the evidence, that the plaintiff is 
 not an innocent holder of said note, as explained in these in- 
 structions, then the defendant is entitled to set up the same 
 defenses to it that he could have set up if suit had been 
 brought by the payee of said note. 
 
 GUARANTOR OF COLLECTION — INDOESER OR ASSIGNOR, UNDER 
 THE STATUTE OF ILLINOIS. 
 
 Note. — The liability of an indorser or assignor of a promissory note, un- 
 der the statutes of Illinois, is substantitiUy the same as that of a guarantor of 
 collection by the law merchant, except, perhaps, that the guarantor is entitled 
 to reasonable notice if the holder fails to collect from the maker. 2 Pars, 
 on N. & B., 141; Wolf e \b. Brown, b Ohio St., 304; Day vs. Elmore, ^ 
 Wis., 190; GilUvgham vs. Bonrdman. 29 Me., 79: Ransom vs. Sherwood, 
 26 Conn., 48 i": Camden vs. Doremus, B How., 515; G>'ee)i vs. Thvnipson, 
 83 la., 293; Judson vs. Goal-ins, 37 III., 286. 
 
 § 14. Liability Fixed by Statute — Illinois. — The Jury are in- 
 structed, that under the laws of this State, the assignor of a 
 promissory note is liable to pay the same to the assignee; pro- 
 vided, the assignee shall have used due diligence to collect tljc 
 same from the maker, by the institution and prosecution of a 
 suit against him; and if the jury believe, from the evidence, 
 that the institution of such suit would have been unavailing to 
 collect the note, or any part of it, from the maker, or if the 
 maker had absconded, resided out of, or had left the state 
 when the note became due, then the assignor would be liable
 
 NEGOTIABLE INSTRUMENTS. 435 
 
 without the institution of a suit, tlie same as if due diligence 
 by suit had been used against the maker. Mason vs. Barton^ 
 51 111., 349; Beattie vs. Browne, 64 111., 360. 
 
 § 15. Intention does not Govern. — The jury are mstrncted, 
 that it is immaterial in this case what idea the defendant had 
 as to his liability as the indorser of the note; such liability is 
 fixed by law. And if the jury believe, from the evidence, 
 that the defendant sold and indorsed the note, then he is liable, 
 in law, as the indorser, whatever may have been his intention 
 or understanding at the time. Ilawkinson vs. Olson, 48 111., 
 277. 
 
 § 16. Due Diligence Defined. — The court instructs the jury, 
 that in order to hold the indorser of a note liable on his in- 
 dorsement, it is not necessary that the holder, in his attempts 
 to collect the note of the maker, should have used the greatest 
 possible degree of diligence. He is only required to use such 
 diligence as is ordinarily used by careful, vigilant and prudent 
 men in the conduct of their own affairs. 2 Pars, on N. & B., 
 141. 
 
 If the jury believe, from the evidence, that the plaintiff 
 instituted a suit on the note in question, against the maker, in 
 the circuit court of the county in which the maker resided, at 
 the first term of said court after the note became due, and 
 prosecuted said suit to final judgment, with all reasonable dili- 
 gence, and, after the judgment was obtained, with all reason- 
 able diligence caused an execution to issue thereon, and j)laced 
 the same in the hands of the sheriff of said county; and if the 
 jury further believe, from the evidence, that the sheriff at no 
 time during the life of the execution, was able to find property 
 of the defendant in the execution to satisfy the same, or any 
 part thereof, and that at the expiration of [ninefi/) days from 
 its issue he returned the execution, no property found, then the 
 plaintiff is entitled to recover in this suit the amount of said 
 note and interest, provided the jury further believe, from the 
 evidence, that during the time the sheriff so held the execu- 
 tion, and ever since that time, said A. B. has had no property, 
 out of which the said execution, or any part thereof, could 
 have been made by the exercise of ordinary diligence on the 
 part of the plaintiff. Judson vs. Goohin^ 37 111., 286.
 
 436 KEGOTIAULE INSTEUMENTS. 
 
 If the jury b2Hcve, from the evidence, that the plaintiff 
 prosecuted the maker of the note bj suit at the first term of 
 court after the note was due, and recovered judgment upon it 
 at said term, and, with all reasonable diligence, had his execu- 
 tion issued to the sheriff of the county where the maker of 
 the note resided, and the sheriff returned the said execution, in 
 whole [or in part) unsatisfied, and no property found, then 
 the plaintiff is entitled to recover; provided the jury believe, 
 from the evidence, that the defendant, in the execution, has 
 had no property in liis possession liable to be taken on said 
 execution, as explained in these instructions, since the maturity 
 of the said note, and before the commencement of this suit, or 
 no such property known to the plaintiff" or his attorney, or 
 which they might have discovered, by the exercise of reason- 
 able care and diligence directed to that end. 
 
 In order to render the assignor of a promissory note liable 
 on his indorsement, upon the ground thnt the holder hasused 
 due diligence to collect the note from the maker, the assignee 
 must show, by a preponlerance of evidence, that he instituted 
 a suit against the maker and prosecuted it to judgment, at the 
 earliest prarjiticable time, and that he took steps to enforce 
 payment of the judgment, by issuing an execution thereon, and 
 placing the same in the hands of the proper officer, as soon as 
 this could be done by the exercise of reasonable diligence in 
 that behalf. 
 
 Our statute, in relation to promissory notes, makes the in- 
 dorser or assignor of a promissory note liable only in case the 
 assignee has used due diligence to collect the money from the 
 maker. 
 
 Due diligence does not consist in merely instituting a suit 
 against the maker and prosecuting it to judgment, but, in 
 order to show this diligence, the assignee must show, by a 
 preponderance of evidence, that within the county where the 
 suit was commenced he had used all the means that the law 
 has furnished him with to enforce the collection of the money. 
 Holhrook vs. Yihhard^ 2 Scam., 465; Wilson vs. Binford, 54 
 Ind., 569. 
 
 § 17. Wliat is Due Diligence — Suit Unavailin;*. — That when 
 a note is assigned by the payee, the intention of the law is,
 
 NEGOTIABLE INSTRUMENTS. 437 
 
 tliat the assip^nee sliall make the amount out of the maker of 
 the note, if it can be done bj reasonable diligence. 
 
 Due and reasonable diligence means such diligence as a care- 
 ful, diligent and prudent man would ordinarily exercise in 
 the conduct of his own affairs. Judson vs. Gookins^ 37 111., 
 2S6. 
 
 The jury are instructed, that when the indorsee seeks to 
 recover against the indorser of a promissory note, upon the 
 ground that a suit against the maker would have been unavail- 
 ing, the fact, if proved, that the maker was solvent when the 
 note came due, will not afl'ect the liability of the indorser, if 
 it appears, from the evidence, that such solvency did not con- 
 tinue until a suit against the maker could have been made 
 availing. 
 
 If the jury believe, from the evidence, that on or about, 
 etc., the defendant sold to the plaintiff the note shown in evi- 
 dence, and then and there assigned the same to him by writing 
 his name on the back thereof, and that at the time when the 
 note came due the said makers, and each of them, was insolv- 
 ent, and have ever since remained so, and that a suit against 
 them would have been unavailing, then the jury should find 
 the issues for the plaintiff, and assess the damages at the 
 amount due on said note. MoChirg vs. Fryer, 15 Pcnn. St., 
 293; Grilligham vs. Bordman, 29 Me., 79; Bull vs. Bliss, 30 
 Yt, 127; Stone vs. Bochefeller, 29 Ohio St., 625; Miles vs. 
 Linnell, 97 Mass., 298. But see Bosman vs. Akerly, 39 Mich., 
 710; Frank vs. Marsh, 29 Wis., 649; Craig vs. Perkins^ 40 
 K. Y., 181. 
 
 § 18. Part of Note Collectible against Maker. — Though the 
 jury may believe, from the evidence, that by the use of reason- 
 able diligence against the makers, a portion of the note could 
 have been made out of them, but not the whole of it, then the 
 plaintiff is entitled to recover, in this action, the residue of 
 the debt, which could not have been made by suit, and reason- 
 able diligence against the makers. 
 
 § 19. Maker Removed from the State. — The law does not 
 require that the assignee of a promissory note shall resort to 
 the extraordinary process of attachmeat against the maker
 
 438 NEGOTIARLE INSTRITMENTS. 
 
 before he can hold the indorser liable. If the juvy believe, 
 from the evidence, that before the maturity of the note in 
 question the maker of the note had removed from this state 
 and was residing out of this state when the note became due, 
 then the plaintiff had a rio-ht to ]:»roceed at once against the 
 defendant and hold him responsible for the payment of the 
 note. Titus vs. Seward, QS Ind., 456. 
 
 § 20. Insolvency of Maker. — If the Jury believe, from the 
 evidence, that the plaintiff could not have collected the amount 
 of said note, or any part of it, from the maker, by due dili- 
 gence, in the institution and prosecution of a suit against him, 
 at any time after the note became due, and before the com- 
 mencement of this suit, then the plaintitt'is entitled to recover. 
 
 If the Jury believe, from the evidence, that the maker of 
 the note in question, at the time the same came due, had no 
 property except what was exemi^t from execution, as explained 
 in these instructions, and that he was insolvent, and that that 
 condition of things continued to the commencement of this 
 suit, then the plaintiff w^as under no obligation to commence a 
 suit against the maker of the note, in order to hold the de- 
 fendant liable. 
 
 If the Jury believe, from the evidence, that at all times, after 
 the note came due, the institution of a suit, by the plaintiff 
 against the maker, would have been unavailing to collect the 
 amount of said note, or any part of it, then the Jury should 
 find, for the plaintiff. 
 
 If the Jury believe, from the evidence, that at the time when 
 the note fell due, the maker was notoriously insolvent, and has 
 60 continued up to the time of the commencement of this suit) 
 and that the prosecution of a suit against him would have 
 been unavailing to obtain the amount due on the note, or any 
 part thereof, the Jury should find for the plaintiff. 
 
 § 21. Execution Returned — Xo Property Fonnd. — The court 
 instructs the jury, that the return, by a constable, of an execu- 
 tion, issued against the maker of the note, unsatisfied, or no 
 property found, is proper evidence to be considered by the 
 Jury, with all the other evidence in tlie case, as tending to 
 show that the defendant in the execution had no personal
 
 NEGOTIABLE INSTRIIMENTS. 439 
 
 property, subject to execution, while tlie execution was in the 
 hands of the officer, nor at the time of such return. 
 
 The execution returned, no property found, by the sheriff of 
 this county, is proper evidence to be considered by the jury, 
 with all the other evidence in the case, as tending to show that 
 the maker of the note had no personal or real property in this 
 county, subject to execution, during the time the sheriff held 
 such execution, nor at the time of said return. 
 
 § 22. Insolvency may be Proved by Other Evidence. — The 
 
 court further instructs the jury, that the fact that a suit against 
 the maker would have been unavailing, may be proved by any 
 other legal testimony, as well as by the return of an execution 
 against him unsatisfied. To entitle the plaintiff to recover, it 
 is only necessary for the jury to believe, from the evidence, 
 that such suit would have been unavailing. 2 Pars, on N. & 
 B., 142; J2oherts vs. IlasMl, 20 111., 59. 
 
 § 23. Return of the Officer not Conclusive. — The court in- 
 structs the jury, that the executions, introduced in evidence 
 with the returns thereon indorsed of no property found, ai'e 
 not alone conclusive evidence that the maker of the note was 
 at the time insolvent, or that due diligence against him would 
 have been unavailing. Roljerts vs. Haskell^ 20 111., 59. 
 
 § 24. Execution from Justice, no Evidence R3garding Real 
 Estate. — The jury are further instructed, that the return of an 
 officer, of no property found, on an execution issued by a 
 justice of the peace, is no evidence that the defendant in the 
 execution did not have real estate in the county, liable to exe- 
 cution, at the date of such return. 
 
 § 25. Possession of Personal Property Evidence of Ownership. 
 — The court instructs the jury, that when one person sells per- 
 sonal property to another, and retains possession of it, the 
 property would be subject to \Qy^ under an execution against 
 the seller, so long as it remains in his possession, such a sale 
 being, in law, fraudulent, as against subsequent purchasers 
 in good faith, and execution creditors of the seller. Bump on 
 Fraud. Cor.., 60.
 
 440 NEGOTIABLE INSTEUilEKTS. 
 
 If tlie jnry believe, from the evidence, that A. B., the 
 maker of the note in question, had in his possession property 
 subject to execution, as explained in these instructions, suffi- 
 cient in value to liave p>aid the notes, at any time after a judg- 
 ment might have been obtained against him, by tlie use of 
 reasonable diligence, and before the commencement of this 
 suit, then the jury should find for the defendant. 
 
 The possession of personal property is jpriina facie evi- 
 dence of ownership; and in tliis case, if the jury believe, from 
 the evidence, that after the maturity of the note, and after a 
 judgment might have been obtained thereon against the maker, 
 and before the commencement of this suit, A. B., the maker 
 of the note, was in possession of personal property, sufficient 
 in value to have paid the note, over and above his propei-ty 
 exempt from execution, then it was the duty of the plaintilf 
 to use all reasonable diligence to make the debt out of the 
 maker of the note, by getting a judgment and levying an exe- 
 cution on such property, and trying the tit'e to the same, if it 
 was claimed by others; and if the jury believe, from the evi- 
 dence, that tiie plaintiff did not do so, and that on this trial he 
 lias failed to overcome or remove the presumption of owner- 
 ship arising from such possession, by a preponderance of evi- 
 dence, then the jury should find for the defendant. 
 
 If the jury believe, from the evidence, that at, or about, the 
 time the note in question became due, and shortly afterwards, 
 the maker had ])roperty in his possession, not exempt from ex- 
 ecution, as exj)]ained in these instructions, sufficient to have 
 paid the said note, or any considerable part of it, then the pre- 
 sumption of law is, that such property belonged to him, and 
 that by the use of due diligence in the institution and prosecu- 
 tion of a suit against the maker, the amount of the note, or a 
 "|iart of it, could have been made out of the maker; and the 
 burden of proof is on the plaintiff to show, by a preponder- 
 ance of the evidence, that such property did not belong to the 
 said S. M., or that, for some reason, it was not available for the 
 payment of said note. 
 
 To render the assignor of a note liable thereon, tlie holder 
 must have used due diligence to collect it, by the institution 
 or prosecution of a suit against the maker, unless it appears, 
 by a preponderance of the evidence, that the institution oi 
 such suit would have been una vail ins;.
 
 NEGOTIABLE IKSTKUMENTS. 441 
 
 To excuse tlie holder of a note from the use of diligence to 
 collect it of the maker, it is not sufficient to show that the 
 maker had no visible property in his hands, or possession; it 
 must be further proved, by a preponderance of evidence, that 
 he ai)parently had no means with which to pay the note, or 
 was so insolvent as to be unable to pay it. 
 
 The court instructs the jury, that, even though they should 
 believe, from the evidence, that at the time the note fell due, 
 the maker, S. M., was insolvent, still, if the jury should fur- 
 ther believe, from the evidence, that had the plaintiff used 
 due diligence in the collection of the note, he could have col- 
 lected the same from the maker, then the jury will iind for 
 the defendant. 
 
 If the jury believe, from the evidence, that after a judg- 
 ment might have been obtained against the maker of the 
 note, and before the commencement of this suit, he had per- 
 sonal property, not exempt from execution, as explained in 
 these instructions, sufficient to have paid the debt, or some 
 considerable part of it, such state of facts raises a presum]>tion 
 that the note, or such part of it, could hav^e been collected of 
 the maker. 
 
 If the jury believe, from the evidence, that S. M., the 
 maker of the note, was in possession of, and had under his 
 control, personal property during, etc., such possession is pre- 
 sumptive evidence that he owned said property; and unless 
 the jury believe, from the evidence, that some one else owned 
 the property, the presumption would be that it really belonged 
 to the said S. M. Eolerts vs. Haskell, 20 111., 59. 
 
 GUARANTOR OF PAY31ENT. 
 
 Note. — There is much diversity of opinion among the courts of the 
 different states, as to tlae nature of the contract to be implied from the 
 blank indorsement of one not a party to the bill or note, when the paper is 
 negotiable, and the indorsement is made before its delivery to the payee. 
 In some states, one indorsing in such manner, is prima fade, regarded as a 
 guaran or; in others, as an indorser; and in others, as a joint promisor, or 
 surety. But in most of the states, the effect of such an indorsement is held 
 to depend upon the intention of the parties, which may be ascertained by 
 parol evidence. 2 Pars, on N. & B., 119. 
 
 § 26. Guarantor— Liability Generally. — The jury are in-
 
 4A:'2i NEGOTIABLE INSTRUMENTS. 
 
 stnicted, that a guarantor of a promissory note cannot be made 
 liable beyond tlie express terms of his contj-act or imdertak- 
 ing. He has a right to prescribe the terms and conditions 
 upon which he will assume a responsibility, and no other per- 
 son has a right to change those terms, not even with the 
 design of diminishing the probabilities of ultimate loss by the 
 guarantor; and it is wholly immaterial whether the change is 
 advantageous to him or nut. Ryan vs. The Trustees^ 14 111., 
 20. 
 
 § 27. Name of Third Person on Back of Note. — That the 
 signature of a third party, in blank, on the back of a note in 
 the hands of the payee, is presumptive evidence that it was 
 placed there as a guaranty at the time of the execution of the 
 note. 
 
 If the jury believe, frorn the evidence, that the defendant 
 wrote his name on the back of the note in question before it 
 was delivered to the paj'ce, then the presumption of law is, 
 that he indorsed the note as a guarantor of the payment of the 
 same, and in such case the defendant would become liable to 
 pay the note at maturity, if it was not then paid by the maker ; 
 unless the jury further believe, from the evidence, that it was 
 expressly agreed and understood by the parties to the note, 
 when the defendant indorsed it, that he did not indorse it as 
 guarantor of the payment. 
 
 That where the name of a person, not the payee of a note, is 
 indorsed on it, before delivery, in the absence of evidence to 
 the contrai-y, he indorses it as a guarantor. Glickauf vs. 
 Kaufmanii, 73 111., 37. 
 
 § 28. Liable until Note is Paid.— That the liability of the 
 guarantor of a note continues until the note is paid or barred 
 by the statute of limitations, and he is not discharged by a 
 mere delay in bringing suit against the maker. I^arkhurst vs. 
 Vail, 73 111., 343. 
 
 § 29. Delay wiU not Release. — That mere delay, on the part 
 of a creditor, to proceed against the principal debtor, does not 
 discharge the surety; all that the surety has a right to require 
 is that the creditor should do no aflirmative act to its preju-
 
 NEGOTIABLE INSTRUMENTS. 44,3 
 
 dice. YiUars vs. Palmer, 67 111., 204; Edwd. on B. & K, 
 292; 2 Pars, on K. & B., 246. 
 
 § 30. Consideration for Gnaranty. — The jury are instructed, 
 as a matter of law, that to render a contract of guaranty bind- 
 ing, it must be upon a good or valuable consideration. If a 
 guaranty is placed upon the back of a note, at the time of its 
 execution or before its delivery to the payee, so as to form a 
 part of the original transaction, then no other consideration 
 need be shown. 
 
 But when the name of a guarantor is written on the back of 
 a note, after its delivery to the payee, then, to make the guar- 
 antor h'able, the jury must believe, from the evidence, that 
 there was some new considei'ation for such guaranty. Jodijn 
 vs. ColUnson, 26 111.. 61; 2 Pars, on N. & B., 126; Ware vs. 
 Adams, 24 Me., 177; White vs. White, 30 Yt., 338. 
 
 If a third party signs his name, as a guarantor, upon a 
 promissory note, before its delivery to the payee, the con- 
 sideration of the note will be ])resumed to be the consideration 
 of the guaranty; but if he signs it after delivery to the payee, 
 then a consideration must be shown. 
 
 If the jury believe, from tlie evidence, that the defendant 
 signed his name on the back of the note in question at the 
 time it was made, and before, or at the time, it was delivered 
 to the payee, then the defendant would be bound by his con- 
 tract of guaranty, without any consideration therefor, other 
 than the consideration of the note, provided the jury believe, 
 from the evidence, that the defendant signed the note in the 
 capacity of guarantor. 
 
 § 31. Release of Guarantor or Surety — Alteration of Note. — The 
 
 law is that, if a promissory note is signed by a party, as surety 
 or guarantor, while blank as to (time and place of payment) 
 and in this condition is intrusted to the principal to deliver 
 to the payee, and the principal tills up these blanks differently 
 from what had been agreed upon, then the surety or guaran- 
 tor makes the principal his agent for tilling such blanks, and 
 he will be bound by the note as thus filled up. Gottrupt vs. 
 Williamson; 61 Ind., 599. 
 The law is, that if a party to a negotiable instrument.
 
 444 NEGOTIABLE INSTKUMENTS. 
 
 intrust it to the custody of another with blanks not filled up, 
 whether it be for the accommodation of the person to whom 
 it is intrusted, or to be used for his own benefit, the instru- 
 ment carries on its face an implied authority to fill up the 
 blanks and perfect the instrument. As between such party 
 and an innocent third party, the person to whom the note 
 was intrusted, must be deemed to be the agent of the party 
 who committed the instrument to his custody. Bank of P. 
 vs. JS'eal, 22 How., 96. 
 
 If the jury believe, from the evidence, that the name of 
 C. H. was placed on the note in suit after the execution of 
 the guaranty, then the burden of proving, by a preponderance 
 of evidence, that said name was placed upon said note with 
 the knowledge and consent of the defendant, is upon the plaint- 
 iff, and if the evidence, upon this point, is equally balanced, the 
 jury nmst find for the defendant. 
 
 Whether the adding of the name of C. H. to the note, after 
 the execution of the guaranty, was a benefit or an injury to the 
 guarantor, is not a subject of inquiry for the jury — the only 
 question for them is, was it done after the guaranty was writ- 
 ten, and, if yes, was it done with or without the consent of 
 the defendant; and 'if the jury believe, from the evidence, 
 that it was so dune, without his consent, this would render his 
 guaranty void, although such signing may have been a benefit 
 to the defendant. 
 
 § 32. Release of Guarantor — Extending Time. — The court in- 
 structs the jury, that a valid agreement between the payee or 
 holder and the principal maker of a promissory note, for an 
 extension of the time of payment of the note for a definite 
 and fixed period of time, after its maturity, will release the 
 guarantor {or surety), unless he consents to the agreement at 
 the time it is made, or afterwards ratifies it. Edwd. on B. & 
 X., 29J; 2 Pars, on N. & B , 245; Danforth vs. Simple, 73 
 111., 170; Tracey vs. Quillon et al.^ 65 Ind., 249; Barron vs. 
 Cady, 40 Mich., 259; Kittle vs. Wilson, 7 Neb., 76. 
 
 If you believe, from the evidence in this case, that tlifi 
 defendant executed the guaranty on the note before its deliv- 
 ery to the payee, and if you further believe, that at the time 
 he so executed the said guaranty, it was understood and agreed
 
 NEGOTIAIJLE INSTKUMENTS. 4i5 
 
 by him, tliat the name of C. II. should l)e added to tlie note 
 as one of the makers thereof before the delivery of the same, 
 and if you further believe, from the evidence, that the name 
 of C. H. was so added, in pursuance of said agreement, and 
 understanding of the defendant, then the defendant is liable 
 upon the guaranty, and you should find for the plaintiff, and 
 assess liis damages at such sum, as you believe, from the evi- 
 dence, is due upon the note. 
 
 An agreement to extend the time of payment of a nofe, 
 after its maturity, made between tlie Jiokler and the princijial 
 maker, to have the effect to release the indorser. must bo a 
 valid agreement, ujion a sufficient consideration, and one that 
 the maker could enforce as against the payee or holder of the 
 note. An agreement to continue to pay usury {or an agrce- 
 ment to continue to pay interest at the rate mentioned in the 
 note') would not be such an agi'eement, and it would not release 
 the indorser. Stewart vs. ParJxer, 55 Ga., 656; White vs. 
 Whitne^J, 51 Ind., 124; Ilyersvs. First Nat. ^/T'., 78 111., 257; 
 Weed & Co. vs. Oberreich, 38 Wis., 325; Facocett vs. Fresh- 
 water, 31 Ohio St., 637. 
 
 A contract to extend the time of payment on a note, in con- 
 sideration of money actually paid, is a binding contract, and 
 releases the surety on the note, if made without his knowledge 
 or consent, whether the money so paid be regarded as usury 
 or not. 
 
 The contract of a surety is construed strictly in his favor; 
 and he cannot be held responsible, beyond the precise terms of 
 his contract; and any binding contract by which the holder of 
 a note agrees to give additional time to the maker, without 
 the assent of the guarantor, will release him, and this whether 
 the contract is made before or after the maturity of the note. 
 
 In this case the defendant A. J3. is sued as an indorser or 
 guarantor of the note in question, and if the jury believe, from 
 the evidence, that at or about the time the note became due, 
 the plaintiff', without the knowledge or consent of the defend- 
 ant, made an agreement with the maker of the said note to 
 extend the time of ])ayment of the same for the jieriod of, 
 etc., provided the maker of the said note would pay interest 
 thereon in advance for such extension, at the rate of, etc., and 
 that, in pursuance of such agreement, such advance intei-est
 
 446 NEGOTIABLE INSTECIHENTS. 
 
 was then and there paid, then such agreement to extend the 
 time of ]iayment of said note would release the defendant 
 from all liability thereon. Randolph vs. Flemming^ 59 Ga., 
 776. 
 
 If the jury believe, from the evidence, that the defendant 
 A. B. signed the note in question merely as surety and for the 
 accommodation of the other makers of said note, and that 
 this fact was known to the plaintiff when the note was given, 
 and that at or about the time that the note came due, the 
 plaintiff, without the knowledge or consent of said A, B., 
 made an agreement with the other makers of said note to ex- 
 tend the time of payment of the same for the period of (sixty 
 days)j in consideration that such other makers of said note 
 would pay interest thereon, in advance, for such extension, at 
 the rate of, etc., and that in pursuance of such agreement 
 such advance interest was then and there ]:)aid, then such 
 agreement to extend the time of payment of said note would 
 release the defendant A. B. from all liability thereon. Faio- 
 cett vs. Freshwater^ 31 Ohio St., 637; Wi/ine vs. Colorado 
 Springs Co., 3 Col., 155. 
 
 § 33. Siil)?eT[uent Promise fo Pay. — The court instructs the 
 jury, as a matter of law, that a promise, by the indorser of a 
 note, to pay it, made after the maturity of the note, and with 
 the knowledge, on the part of the promisor, of all the material 
 facts relating to the non-payment of the note by tlie makei-, 
 amounts to a waiver of proof of the insolvency of the maker, 
 and of the necessity of using diligence to collect the same by 
 the institution and ])rosecution of a suit against him. And, in 
 this case, if the jury believe, from the evidence, that since the 
 note became due, the defendant, with full knowledge of all 
 the facts relating to the liability and responsibility of the 
 maker, promised the plaintiff to pay the note, then the jury 
 should find for the plaintiff, regardless of the insolvency of the 
 maker. 1 Pars, on K & B., 584; Edwd. on B. & K, 650; 
 Tehhetts vs. Dowd, 23 Wend., 379; Hughes vs. Bowen, 15 la., 
 446. 
 
 That the rule of law is, that when the holder of a promissory 
 note is guilty of such laches as will release an indorser, and the 
 indorser afterwards promises to pay the note, with full kuowl-
 
 NEGOTIABLE INSTKUMENTS. 44:7 
 
 cdoTQ of the facts, Avlucli would operate to discharge him, then 
 the indorser will still be liable upon his indorsement. Whether 
 the indorser, in such case, knows or does not know that he is 
 released from liability, as a matter of law, makes no difference; 
 it is enough if he knows the facts, and makes the promise. 
 Edwd. on B. & N., 651; TeUbeits vs. Dowd, 23 Wend., 379. 
 
 If the jury believe, from the evidence, that since the note 
 sued on became due, the defendant, with full knowledge of all 
 the facts relating to the non-payment of the note by the maker, 
 has promised to pay it, then the law presumes that the maker of 
 the note was insolvent at the time the note became due, and 
 that a suit against him would have been unavailing. 
 
 If the jury believe, from the evidence, that the maker of 
 the note was solvent at and since its maturity, and that the 
 defendant was released from his liability thereun as indorser, 
 by the failure of the plaintiff to sue the maker, still, if the 
 jur}' believe, from the evidence, that the defendant, with full 
 knowledge of all these facts, afterwards promised to pay it, 
 then his antecedent liability therefor is, in law, a sufficient 
 consideration to support his promise to pay the same. 
 
 When the principal maker and the holder of the note agree, 
 for a valuable consideration, to extend the time of payment of 
 the note, without the knowledge or consent of the surety or 
 guarantor, such an agreement will release the surety or guaran- 
 tor; but if the surety subsequently promises to pay the note, 
 with knowledge, at the time, of such previous extension, this 
 will be a waiver of any defense which he might have had by 
 reason of the extension. 
 
 INDOKSEK. 
 
 § 34. Demand of Payment and Notice, — The jury are in- 
 structed, that in order to hold an indorser of a promissory 
 note upon his indorsement, the law requires the holder to pre- 
 sent the note to the maker for payment, and if payment is 
 refused, to immediately notify the indorser. Whether in this 
 case the plaintiff did, etc., present the said note for payment 
 and immediately give notice of non-payment to the indorser, 
 are questions of fact to be determined by the jur3\ 
 
 As a matter of law, if the holder of negotiable paper neg-
 
 448 NEGOTIABLE INS'IKUMENTS. 
 
 ]ects to have it protested for non-payment by the maker, ho 
 thereby makes the paper his own and releases the indorser; 
 and it makes no difference whether the maker was insolvent 
 at the time the note came due, or that the indorser will sus- 
 tain no injury from want of notice of non-payment by the 
 maker. Whitfen vs. TTW^A?!, 34 Mich., 92. 
 
 Demand of payment from the maker and notice of non- 
 payment of a promissory note may be waived by the indorser 
 bv any act of his calculated to put the holder off his guard 
 and prevent him from treating tlie note as he otherwise would 
 have done in regai'd to such demand and notice, and in this 
 case, if the jury believe, from the evidence, that shortly be- 
 fore or abont the time the note came due, plaintiff saw the 
 defendant and spoke to him in reference to the payment of 
 the note, and that defendant then stated (it's all right, I in- 
 dorsed the note expecting to pay it when due, and will call in 
 and see about it), this would amount to a waiver of a demand 
 on the maker for payment and of notice to the defendant of 
 non-payment. Edward on P. Notes, 633; Love vs. Vl?iing, 7 
 Met., 212; Bale \s. Danfort/i, 46 "Wis., 554. 
 
 Any conduct on the part of an indorser, towards the holder 
 of negotiable paper, calculated to put a person of reasonable 
 prudence off his guard and to induce him to omit demand of 
 payment from the maker or to give notice of the dishonor of 
 the paper, will dispense with the necessity for taking these 
 steps. And in this case, if the jury believe, from the evi- 
 dence, that the defendant shortly before, and about the time 
 the note b. came due (requested the plaintiff not to ]:)rotest the 
 note) or (that he said to the plaintiff that arrangement for the 
 payment of the note was about being made, and to hold on, 
 etc.), this would amount to a waiver of demand on the maker, 
 for the payment of the note and of notice of non-p.ayment. 
 Bof/dvs. Bank, 32 Ohio St., 520; 1 Pars, on N. & Bills, 582- 
 592; 2 Daniel's Neg. Inst., Sec 1103. 
 
 § 35. Failure or Want of Considoration — Burden of Proof. — The 
 court instructs the jury, that under the laws of this state, the 
 note offered in evidence in this suit isj^rim.a facie evidence 
 of an honest indebtedness owing from the maker to the ]iayee 
 of the note, at the time it was made and delivered; and, unless
 
 NEGOTIABLE INSTRUMENTS. 419 
 
 the defendant has established, by a preiionderance of evidence, 
 that the note was given without consideration (or that the 
 consideration has failed), in whole or in part, or that since it 
 was made and delivered, the note, or some part thereof, has 
 been paid, then the jury should allow the plaintiff in this suit 
 the amount of said note, principal and interest. 
 
 That when, in a suit upon a note, the defendant sets up a 
 failure of the consideration of the note, either in whole or in 
 part, as a defense to the action, he must establish such failure, 
 by a preponderance of the evidence; and, in this suit, if the 
 jury find that the defendant has not proved the failure of the 
 consideration, as alleged in his pleas, by a preponderance of 
 the evidence, the jury should find for the plaintiff for the face 
 of the note and interest. 
 
 That the production of the note in evidence entitles the 
 -pWmtlfi, j)ri??ia facie, to recover the amount which appears to 
 be due by the face of the note, after deducting the payments, 
 if any, that have been made thereon; and the burden of prov- 
 ing any defense to said note is upon the defendant, and unless 
 he has proved his alleged defense, by a preponderance of evi- 
 dence, the jury should disregard such defense in arriving at 
 their verdict. 
 
 § 36. Consideration Presumed, Wlien. — The court instructs 
 the jury, that it is not necessary, in the first instance, for the 
 plaintiff to show any consideration for the giving of said note; 
 the note itself imports consideration, and is sufficient to entitle 
 the plaintiff to recover, unless the jury believe, from the evi- 
 dence, that the defendant has shown some good and valid 
 defense to the same, and the burden of proof is on him to 
 show such defense. 
 
 The jury are further instructed, that the law implies that 
 every promissory note that is made and delivered, was given 
 for a good and valuable consideration; and, in this case, the 
 burden is upon the defendant to prove, by a preponderance 
 of the evidence, that tlie note in question was given without 
 consideration, and unless he has done this, the jury should 
 find for the plaintiff. 
 
 § 37. Abandonment of Claim a Good Consideration. — If the 
 
 29
 
 450 NEGOTIABLE INSTRUMENTS. 
 
 jury believe, from the evidence, that at the time the note was 
 given, tlie jDayee of the note, in good faith, claimed to have a 
 lien upon said lands, for the payment of a debt due him, or 
 some riglit or interest in or to the land, and that the note was 
 given in consideration of his giving up and abandoning such 
 claim, and that he did thereupon give up and abandon said 
 claim, that would be a sufEcient consideration for the note, 
 and it would not matter, in such case, whether his claim was 
 a valid one in law or not. 1 Chitty on Con., 29; Illndert vs. 
 SeJmeider, 4 111. App., 203. 
 
 § 38. Disimted Claims must be Sustainable. — The jury are in- 
 structed, that to render the forbearance of a claim, or an 
 agreement not to enforce an alleged claim, a sufficient consid- 
 eration for a promissory note, it is essential that the claim it- 
 self, if well founded, be sustainable, either at law or in equity, 
 in favor of the person for whose benefit the note is given; 
 and the court instructs the jury that a claim based upon the 
 settlement of a criminal charge cannot be sustained, either at 
 law or in equity, and if the jury believe, from the evidence, 
 that the note in question was given in settlement of a criminal 
 charge, then it is without consideration. Heaps vs. Dunham, 
 95 111., 583; Parsoas vs. Pendleton, etc., 59 Ind., 36; Tucl'er 
 vs. Rank, 42 la., 80; O. d: C. Rd. Go. vs. Potter, 5 Oxag,, 
 228. 
 
 § 39. Want of Consideration. — The court instructs the jury, 
 that the want of a consideration destroys the validity of a note 
 in the hands of the payee, or in the hands of any one charge- 
 able with notice of a want of consideration, and this without 
 regard to the good faith of the transaction in which the note 
 was given; and, in this case, if the jury believe, from the evi- 
 dence, that the note was given without any good or valuable 
 consideration, they should find for the defendant; provided, 
 that the jury further believe, from the evidence, that the note 
 was assigned to the plaintiff after its maturity, or that he had 
 notice of such want of consideration when it was assigned to 
 him. 
 
 If the jury believe, from the evidence, that the note in ques- 
 tion was given without a good or valuable consideration, then,
 
 NEGOTIABLE INSTRUMENTS. 451 
 
 although the jury may further believe, from the evidence, that 
 the plaintiff has promised to pay the note since it was made 
 and delivered, such a promise would not be binding on the 
 defendant, unless it was made upon some new and valuable 
 consideration; unless the jury further believe, from the evi- 
 dence, that the note was assigned to the plaintiff before its 
 maturity, and that he had no notice of such want of considera- 
 tion when he purchased the note. 
 
 § 40. Note Obtained by Fraudulent Representation. — As re- 
 gards the defense set up in this case, that the note was obtained 
 by false and fraudulent representations, the court instructs the 
 jury, that to defeat a recovery on that ground, the jury must 
 believe, from the evidence, that the alleged representations 
 were made, as charged; that they were false when they were 
 made; that the said A. B. then knew them to be false; that 
 they were such as a man of ordinary caution and prudence 
 would be likely to rely upon; that the said defendant did rely 
 upon the truth of them, and was induced thereby to give the 
 note in question, and that he has been, in some manner, injured 
 by such representations. 
 
 § 41. Representations must be Material. — If the jury believe, 
 from the evidence, that the defendant got for his note all that 
 he expected to get, so far as relates to quantity and value, in 
 the transaction in which the note was given, then he is liable 
 upon the note, although the said A. B. may have deceived him 
 in relation to his own interest in the property, or in any other 
 matter not affecting the value of the property or of the con- 
 sideration of the note. 
 
 § 42. Obtained by Fraud and Circumvention. — If the jury be- 
 lieve, from the evidence, that the defendant was induced by 
 the plaintiff, or by any one acting for him, to sign the note 
 offered in evidence in this case, by fraud or circumvention, in 
 manner and form as alleged in defendant's plea, then the said 
 note is void as to the defendant, and he is not liable thereon. 
 
 If the jury believe, from the evidence, that the said A. B. 
 was the agent for the plaintiff, and that he obtained said note 
 from the defendant as such agent, and further, that when dc-
 
 452 NEGOTIABLE INSTErilENTS. 
 
 fendant signed the note he was unahle to read writing readily, 
 and requested the said A. B. to read the same to him [or the 
 said A. B. offered to read the same to him), and did read it 
 to the defendant, and if the jury further believe, from the 
 evidence, that the said A. B., when reading said note, niisread 
 the same in any material part, and thus misled the defendant, 
 and induced iiim to sign said note, when he would not other- 
 wise have done so, then these facts would constitute fi'aud 
 and circumvent'on, within the meaning of the law, and the 
 note is not binding upon the defendant, but is wholl}'- void as 
 to him. Edwd. on B. & K, 325; Chitty on Bills, 73. 
 
 The jury are instructed, that the question for their determi- 
 nation in this case is not whether the note was given for [a 
 jpatent right), but the real question is, was there any trick, 
 artifice or fraud practiced upon the defendant to procure his 
 signature. And unless the defendant has shown, by a predon- 
 derance of evidence, on this trial, that his signature was ob- 
 tained to said note by some trick, artifice or fraud, so that he 
 signed the same without knowing that he was signing a note, 
 then the jury should find for the plaintiff upon that issue. 
 
 The defense set up by the defendant in this case is, that he 
 did not make the note, and also that his signature thereto was 
 obtained by fraud and circumvention. As regards the latter 
 of these defenses, the jury are instructed that it is wholly im- 
 material what the note was given for, or what deception was 
 practiced on him in relation to the consideration of the note; 
 provided the jury believe, from the evidence, that the defend- 
 ant did sign the note in fact, and know that he was signing 
 the note when he did so. 
 
 § 43. Fraud and Circumvention, Void by. — The court instructs 
 the jury, that, by the laws of this state, if any fraud or circum- 
 vention be used in obtaining the making or execution of a 
 promissory note, such note will be absolutely void as against 
 the maker, whether in the hands of the party committing the 
 fraud, or in the hands of any assignee of the instrument. 
 
 The court instructs the jury, that in a suit by the assignee 
 of a promissory note, the fact, if proved, that the execution 
 of the note was procured by fraud or circumvention, is a good 
 defense, and it is immaterial whether the assignee took the
 
 NEGOTIAULE IKSTKUMENTS. 453 
 
 note with or witliout notice of sueli defense; provided, tlie 
 maker used reasonable cai-e and caution to avoid being imposed 
 upon. Hewitt vs. Jones, 72 111., 218. 
 
 Tliat if a person is induced, through a fraud practiced upon 
 him, to sign a promissory note, under the belief that it is an 
 instrument of an entirely different character, and he is guilty 
 of no negligence on his part, the note will be void in whoseso- 
 ever hands it may be, as having been obtained tlirough fraud 
 and circumvention. Iluhbard vs. Rankin, 71 111., 129. See 
 Yan Brunt vs. Langley, 85 111., 281. . 
 
 In this state, if the signature of a person is obtained to a 
 note by tlie fraud or circumvention of the payee thereof, or 
 of any person acting for him, then such a note will be wholly 
 void, even in the hands of a l)07iajide assignee without notice; 
 provided, it appears, from the evidence, that the maker of the 
 note was not chargeable with any want of reasonable care and 
 caution to avoid being imposed upon. Griffiths vs. Kellogg, 
 39 Wis., 290. 
 
 If the jury believe, from the evidence, that the defendant 
 was induced to execute the note in question by false and fraud- 
 ulent re; resentations made to him, regarding the character of 
 the instrument which he was desired to sign, so that he was 
 led to believe the p^aper presented was a wholly different in- 
 strument, then the note is void as to him, and the plaintiff 
 cannot recover thereon; provided, the jury further believe, 
 from the evidence, that the defendant was not chargeable with 
 any negligence which contributed to the deception. DeCamp 
 vs. Hamrna, 29 Ohio St., 467: Iluhbard vs. Ranhln, 71 111., 
 129; Gills vs. Linalurg, 22 Mich., 473. 
 
 § 44. Fraud in the Consideration not Sufficient. — The court 
 
 instructs the jury, that fraud and circumvention, in obtaining 
 the execution of a note, within the meaning of the statute, 
 is not a fraud which relates to the quality, quantity, value or 
 character of the consideration of the note. It means some 
 trick, artifice or device, by means of which a jierson is induced 
 to give the note in question, under the belief that he is giving 
 an instrument of a different character; as when a person is 
 induced to give a note under the belief that it is a receipt (or 
 is induced to give a note for one amount, under the belief that
 
 454: NEGOTIALLE INSTKUitENTS. 
 
 it is for a difTerent amount). Latham vs. Smith, 45 111., 25; 
 Butler vs. Cams, 37 Wis., 61. 
 
 To render a promissory note void in the hands of a })ona 
 fide assignee, on the ground of fraud and circumvention, the 
 fraud nnist relate to the execution of the note itself, and not 
 to the consideration. The fraud must relate to the nature and 
 character of the instrument, or to the amount or other terms 
 of the note, in order to come within the terms, fraud and cir 
 cnmvention, in procuring the execution of the instrument. 
 
 The jnry are further instructed, that in tliis suit {pr under 
 the plea of fraud and circujnvention, etc.), the jury have 
 nothing whatever to do with the question, whether the machine 
 received by the defendant was worth much or little, or whether 
 he was deceived and defrauded in the consideration of the 
 note. So far as the question of {fraud, etc.,) is concerned, the 
 only question for the jury to consider is, whether the defend- 
 ant's signature to the note was obtained by fraud and circum- 
 vention — that is, by some fraudulent trick or device. 
 
 § 45. Signing without Reading. — If the jury believe, from 
 the evidence, that the defendant did sign the note, and fur- 
 ther, that he was induced, by the representations of the said 
 A. B. regarding the contents of the paper thus signed by him, 
 not to read it over, and if the jury further believe, from the 
 evidence, that in relying upon such representations, the 
 defendant acted as the great mass of men, in his station in life 
 and engaged in the same busines-, would have acted, and that 
 in that regard he used ordinary and reasonable care and cau- 
 tion to avoid being imposed upon, then the plaintiff, as regards 
 the question of fraud, stands in precisely the same position 
 as the original payee would have stood, if suit had been 
 brought in his name. 
 
 Though the jury may believe, from the evidence, that the 
 person who took the note in question, practiced a fi-aud upon 
 the defendant, to induce him to give the note, still, if the 
 defendant signed the same, knowing that he was giving such 
 a note as the one in controversy, this is not what the law means 
 by obtaining the execution of a note by fraud or circumven- 
 tion. 
 
 § 46. Mistake as to Legal Effect. — If the jury believe, from
 
 NEGOTIABLE INSTRUMENTS. 4:00 
 
 the evidence, that the defendant, at tlie time he signed the 
 note in question, was mistaken as to its legal effect, still, if the 
 jury further believe, from the evidence, that he did sign the 
 note, that he read the note over, and knew its contents at the 
 time he signed it, then the mistake, on his part, as to the 
 legal effect of the note, cannot affect the plaintiff's right to 
 recover in this suit. 
 
 § 47. Reasonable Care, What. — The jury are instructed, that 
 when a person executes a note, he must be diligent and use 
 all reasonable means to prevent a fraud being ])racticed on 
 him, and if he does not do so, he will be liable to an innocent 
 purchaser of the note, before maturity. He is not required 
 to use every possible precaution, bat only such as would be 
 expected from men of ordinary prudence, in the same station 
 of life and of the same general business experience. 
 
 In order to make the defense of fraud and circumvention ^ 
 in obtaining the execution of a note, available against an inno- 
 cent assignee thereof, before maturity, it is only necessary to 
 show that the maker of the note used ordinary care and cau- 
 tion to prevent being imposed upon, in the execution of the 
 note, and that the execution of the same was obtained by 
 fraud and circumvention. 
 
 In order to make the defense of fraud and circumvention, 
 in obtaining the execution of a note, available against such 
 note, in the hands of an innocent assignee, before maturity, it 
 is not necessary that the maker should use the highest degree 
 of care and caution, to avoid being imposed upon; it is only 
 necessary to use sa(;h reasonable caution as generally governs 
 the conduct of a majority of prudent men. 
 
 § 48. 3Iust Use Reasonable Care to Avoid Imposition. — That a 
 person, before executing a promissory note, should use all 
 reasonable and ordinary precautions to avoid impositions, and 
 if able to read writing readily, he should examine it himself, 
 and if not able to read, he should have it read to him, by some 
 one in whom he has confidence, unless some trick or artifice 
 is used, or false statement made, reasonably calculated to 
 induce him to neglect such ordinary prudence. Jioss vs. 
 Doland, 29 Ohio St., 473; JSfebeclcer vs. Cutsinger, 48 Ind., 
 436.
 
 456 NEGOTIABLE IKSTECMENTS. 
 
 Where one voluntarily signs a negotiable promissory note, 
 supposing it to be an obligation of a different character, but 
 has full means of information in the premises and neglects to 
 avail himself thereof, relying upon the re]iresentations of an- 
 other, he cannot set up such ignorance and mistake against an 
 innocent holder for value, who takes it before maturity. If, 
 however, his signature was procured through artifice or fraud- 
 ulent representations, without negligence on his part (under 
 such circumstances that reasonable and ordinary care would 
 not enable him to discover the fraud or imposition), then the 
 maker is not liable on the note. DeCanip vs. Haimna, 29 
 Ohio St., 467; Mead vs. Manson, 60 111., 49; State BanJc vs. 
 McCoy, 69 Penn. St., 204; Douglas vs. Matting, 29 la., 498. 
 
 Although the jury may believe, from the evidence, that a 
 person representing himself as the agent of A. B., the payee 
 named in the note in suit, applied to the defendant to become 
 an agent of the said A. B. for the sale of (seed drills), to be 
 manufactured by the said A. B., and that it was agreed be- 
 tween said agent and the defendant (that defendant should 
 only be rerpiired to pay an agreed share of the money col- 
 lected by him from such sales, etc.), and that the defendant 
 signed the note offered in evidence, supposing, at the time, that 
 he was only signing certain papers constituting himself such 
 agent, in pui-suance of such agreement, and that he was de- 
 ceived as to the character of such paper by the false and 
 fraudulent representations of said agent in reference thereto, 
 still the defendant will be liable upon said note, provided you 
 further believe, from the evidence, that the defendant was 
 able to read writing, and did not read the paper, or without 
 unreasonable efforts in that behalf might have learned the true 
 character of the paper, bj^ procuring the same to be read to 
 him by some person having no interest in deceiving him ; and 
 also that the plaintiff took the note in the ordinai-y course of 
 business, for value and before due, and without any notice of 
 the fraud practiced upon the defendant. Hoss vs. Dolan, 29 
 Ohio St., 473. 
 
 § 49. Bxirden of Proof. — That the allegation that his signature 
 v/as obtained by fraud and circumvention, is one upon which 
 the defendant has the burden of proof j and before he can
 
 NEGOTIABLE INSTKUMENTS. 457 
 
 derive any benefit from that allegation, lie must prove the 
 truth of it, by a preponderance of evidence; and unless lie 
 has done so, the jury should find for the plaintiff, upon that 
 issue. 
 
 The jury are further instructed, that when a person sets up 
 fraud and circumvention, to defeat a recovery on a note, and 
 supports such defense by his own testimony aione, and the 
 other party to the transaction, by his testimony, denies the 
 statements of the defendant, in respect to such fraud, and 
 both parties are equally credible, have equal opportunities for 
 knowing, and testify apparently with equal fairness, candor 
 and truthfulness, and neither is corroborated by other evidence. 
 or by other facts or circumstances shown on the trial, then 
 the defense of fraud is not proven. 
 
 The court instructs the jury, that if they believe, from the 
 evidence, that the defendant signed his name to the note, 
 introduced in evidence, then the note will entitle the plaintiff 
 to recover, unless the defendant has established, by a prepon- 
 derance of evidence, that the signature to the note was obtained 
 by fraud or circumvention. 
 
 Although the jury may find, from the evidence, that there 
 was an agreement between the agent of the said A. B. and the 
 defendant, to the purport and effect of the agreement set 
 out in the last instruction, and that the defendant, by the false 
 and fraudulent representations of the said agent, was induced 
 to affix his signature to a printed blank which would be in the 
 form of a promissory note when the blanks were filled, but 
 without any intention of executing a promissory note, and then 
 delivered the said paper so sign<3d by him to said agent, and 
 gave him no authority to till said blanks or to write anything 
 over his signature, still the defendant would be liable in this 
 case, if you further believe, from the evidence, that the agent, 
 or the said A. B., afterwards filled the blanks in the form in 
 which it is now written, and that the plaintiff took the note in 
 the ordinary course of business for value and before due, with- 
 out any notice of the fraud practiced upon defendant. Hoss 
 vs. Doland, 29 Ohio St., 473. 
 
 § 50. Fraud May be "Waived. — If the jury believe, from 
 the evidence, that after the giving of the note in question the
 
 ■158 KEG0TIAT5LE INSTEUMENTS. 
 
 defendant learned all the facts regarding, etc., and that after 
 discovering such facts, and at or about the time the note came 
 due, he requested the plaintiff to give him time to pay it, stat- 
 ing that he would pay it, and that the plaintiff, in pursuance 
 of such request, did give him additional time after the note 
 came due in which to pay it, then the defendant thereby 
 waived the alleged fraud, and he will now be Hable on the 
 note, although at the time he asked for time to pay it he did 
 not know that the facts, now set up as a defense, would make a 
 defense in law. Rijidshoj)/ ys>. Daman et al.^ 28 Ohio St., 
 516. 
 
 § 51. Note Stolen, or Wrongfully Obtained. — If the jury be- 
 lieve, from the evidence, that the defendant signed the note 
 in question, in tliis case, knowing that it was a note, and they 
 also believe, from the evidence, that the note was assigned to 
 the plaintiff, for a valuable consideration, before the maturity 
 of the note, in the regular course of business, and that the 
 plaintiff, at the time of such assignment, had no notice that 
 the note was not properly put into circulation, then the plaint- 
 iff will have a right to recover, even though the jury may 
 further believe that the note was obtained from the maker by 
 fraud {or that it loas stolen from, etc.,) or otherwise wrongfully 
 put into circulation. Clark vs. Johnson, 54 111., 296; Barsen 
 vs. Huntington, 21 Mich., 415. 
 
 That, although the jury may believe, from the evidence 
 that the note in question was lost by the defendant {or stolen 
 from hhn), or otherwise wrongfully put into circulation, still, 
 if the jury further believe, from the evidence, that the 
 plaintiff took the same, in the regular course of business, in 
 good faith, for a valuable consideration, and before maturity, 
 and without any knowledge of the manner in Avhich it got into 
 circulation, then the jilaintiff' is entitled to recover on the note. 
 Franldin, etc., vs. Ile'insman, 1 Mo. App., 336; Shiphj vs. 
 Carroll, 45 111., 285; Marry vs. Lardner, 2 Wall., 110; Gava- 
 gan vs. Bnjant, 83 111., 376. 
 
 The court instructs the jury, that in order to defeat the title 
 of the purchaser, for value, before maturity, of stolen negoti- 
 able promissory notes, the circumstances proved must be such 
 as to lead the jury to believe, from the evidence, that the pur-
 
 NEGOTIABLE INSTEUMENT8. 459 
 
 chase was made in bad faith, or with notice of the want of 
 title in the seller; mere proof of negligence or want of caution 
 on the part of such a purchaser, is not alone sufficient to defeat 
 his title or right to recovery. Duchess Co. Mutual Ins. Co. 
 vs. IlachfieUi.lZ N. Y., 226. 
 
 § 52. Duress — Abnso of Criminal Process. — The court in- 
 structs the jury, that if they believe, from the evidence, that 
 the note sued upon, in this case, was obtained from the de- 
 fendant through a wrongful perversion or abuse of criminal 
 process, as explained in these instructions, then such note is 
 void in the hands of the payee, or in the hands of any person 
 taking it after maturity, or with notice of the manner in which 
 it was obtained. Boiveti vs. Buck., 2S Yt., 309 ; Faij vs 
 Oailey, 6 Wis., 42 ; Cappell vs. Hall, 7 Wal., 538 ; Sc/iejik vs. 
 P/>elj)s, et al., 6 Brad. (111)., 612. 
 
 If the jury believe, from the evidence, that L., the payee of 
 the note, caused criminal process to be issued against the de- 
 fendant, and used it to enforce a settlement of a doubtful 
 claim, and that while defendant was under arrest, under such 
 process, the said L. used threats against the defendant, to in- 
 duce him to sign the note in controversy, and that such threats 
 were of such a character, and made under such circumstances, 
 as to be likely to terrify a man of ordinary and reasonable 
 firmness, and that under the influence of such threats, and 
 while under such arrest, the defendant signed the notes, then 
 the law is that such note is void, etc. 
 
 If the jury believe, from the evidenje, that one of tlie 
 plaintiffs swore out a warrant for the arrest of the said A. B., 
 upon a charge of (procuring goods of the plaintiffs by false 
 pretenses) and caused the said A. B. to be arrested upon said 
 warrant and taken to, etc., for the purpose of getting the note 
 out of the defendant or otherwise securing an indebtedness 
 due to them, and that they did by this means procure the note 
 in question, and then turned the said A. B. loose without at- 
 tempting further to prosecute him upon the criminal charge, 
 then this was an unwarranted use of criminal process of the 
 state, and the plaintiffs cannot recover upon a note so procured, 
 even if the said (A. B.) had been guilty of procuring goods of 
 them by false pretenses.
 
 460 NEGOTIABLE INSTRUMENTS. 
 
 The jnry are further instructed, that whether or not the pa:cl 
 A. B. owed tlie plaintiff for goods, or whether or not he was 
 guilty of (obtaining goods from them by false pretenses) are 
 questions not involved in this suit (so far as regards the right to 
 recover on the note). The only question for the jury to pass 
 upon in connection with the criminal case, is whether the plaint- 
 iff nsed the criminal process of the state, n )t with the in- 
 tention, in good faith, of prosecuting the criminal, but for the 
 purpose of securing a private debt, and if the jury believe, 
 from the evidence, that it was used for the latter purpose, and 
 that the note was obtained b}'' means of such arrest, then the 
 note is void, and it cannot be enforced in their hands. 
 
 Note. — If suit is brought by an assignee of tiie note, qualify these instruc- 
 tions to meet that state of the case. 
 
 The court instructs the jury, that free consent is of the 
 essence of every contract, and if there be compulsion there 
 is no consent; and moral compulsion, such as tliat produced by 
 threats to inflict great bodily harm, as well as that produced 
 by unlawful imprisonment, is regarded, in law, as sufficient to 
 destroy free agency. 
 
 Threats made by a party liaving a warrant for an arrest, and 
 threats to execute it, or threats to continue a prosecution after 
 an arrest under the warrant, unless the demands of the person 
 making the threats are complied with, are sufficient to avoid 
 a contract entered into through fear induced by such threats; 
 provided, the claim is of doubtful validity, or is disputed by 
 the party tlireatened. 
 
 It is against public policy that criminal process should be 
 used for the purpose of effecting the settlement of a doubtful 
 claim ; and, in this case, if the jury believe, from the evidence, 
 that the ]^laintiff obtained and used a warrant for the arrest of 
 the defendant, for the purpose of eifecting a settlement of a 
 doubtful claim against him, and thereby obtained the notes in 
 question, then such notes are void. 
 
 If the jury believe, from the evidence, that the execution 
 of the notes sued upon was obtained by mrians of threats 
 against the defendant, as stated in such defendant's ]:)lea, and 
 that such threats were of such a chai-acter as to be likely 
 to terrify a man of ordinary and reasonable firmness, then
 
 NEGOTIABLE INSTKUMENTS. 4G1 
 
 duress would be establisliedj aud the notes thus obtained arc 
 void. 
 
 § 53. Lawful Imprisonment not Duress. — The jury are in- 
 structed, that a lawful imprisonment is not such duress as 
 will, alone, enable a party to avoid a note made, while so 
 imprisoned, on the ground of duress. 
 
 And, in this case, although the jury may believe, from the 
 evidence, that the notes in question were executed and deliv- 
 ered while the defendant was under arrest, still, if the jury 
 further believe, from the evidence and under the instructions 
 of the court, that such arrest was legal, then such arrest alone 
 will not render the said notes void. Heaps vs. Dunham et al., 
 95 III., 5S3. 
 
 The court further instructs the jur}", that there is no evi- 
 dence in this case authorizing the arrest of the defendant, at 
 the time in question, and if the jury believe, from the evi. 
 dence, that the notes were given while the defendant was 
 under arrest, and that the giving of the notes was induced by 
 threats to prosecute the defendant for the offense of, etc., ae 
 stated and set out in the papers introduced in evidence in this 
 case, or to further prosecute the defendant under such arrest, 
 unless he sliould give such notes, then the said notes were 
 obtained by duress, and are void as against the defendant; 
 provided, the jury further believe, from the evidence, that 
 the defendant, at the time, denied the justice and legality of 
 the claim for which the notes were given. 
 
 If you believe, from the evidence, that the plaintiff mali- 
 ciously, and without probable cause for such arrest, caused the 
 defendant to be arrested for the purpose of compelling the 
 defendant to settle up, or secure the payment of, etc., and 
 that while under such arrest, and for the purpose of securing 
 his discharge therefrom, the defendant executed and delivertjd 
 the note in question, then the note was given under what 
 the law terms duress, and the defendant is not liable thereon. 
 [For Malice and Prohahle Cause, iSee MaUcious Frosecutio)i.] 
 
 § 54. Giving Note not Payment. — The court instructs the 
 jury, as a matter of law, that the giving of a note in settlement 
 of an account is not a payment of the account, unless the note
 
 462 NEGOTIABLE INSTRUMENTS. 
 
 is of itself paid, or unless it is expressly agreed by and be- 
 tween the parties that the note shall of itself operate as pay- 
 ment of such account, and in this case, unless you find, from 
 the evidence, that the note offered to be surrendered up by 
 the plaintiff was taken by him under an agreement with the 
 defendant, that the note should operate as payment of the ac- 
 count sued on, then the plaintiff's suit here is not barred or 
 prejudiced, by the giving of said note. 
 
 § 55. New Party — New Consideration. — Tiiat where one be- 
 comes a party to a note, after it has once been delivered, and 
 the consideration passed, he will incur no liability unless there 
 is a new consideration for his promise and a re-delivery of the 
 note. WiUlamsys,. Williams^Ql M-O.^QQi, Briggsv&.Dowimig, 
 48 la., 550.
 
 CHAPTER XXXVI. 
 
 NOTICE. 
 
 Sec 1. Notice to agent, 
 
 2. Notice to corporation. 
 
 3. Facts calling for inquiry. 
 
 4. Recitals in deed. 
 6. Unrecorded deeds. 
 
 § 1. Notice to Affeiit. — The Jury are instructed, tliat it is a 
 rule of law that notice to an agent is notice to his princiiial, 
 and that what is known to an agent is known to his principal; 
 provided, such notice or knowledge is received by the agent 
 while he is acting as such agent. Wade on Notice, § 672; 
 Asto?' vs. Wells, 4 Wheat., 466. 
 
 Notice to an agent, in order to bind the principal, must be 
 brought home to the agent, while engaged in the business or 
 negotiation of the principal to which the notice relates; and 
 when it would be a breach of trust in the former not to com- 
 municate the knowledge to the latter. Pringle vs. Dunn, 37 
 Wis., 449. 
 
 While it is a general rule of law, that a notice to an agent 
 is notice to his principal, still, in order to bind a person by 
 notice to his agent, it must appear, from the preponderance 
 of the evidence, that the alleged agent was the agent of the 
 party sought to be charged in relation to the very matter to 
 which the notice relates, and that the notice or information 
 came to the knowledge of the agent while he was acting as 
 such agent. Wade on Notice, § 689. 
 
 § 2. Notice to Corporation. — The court instructs the Jury, 
 that notice to a corporation can only be given by giving it to 
 some officer authorized to represent the corporation in the 
 particular matter to which the notice relates ; or else to some 
 person whose situation and relation to the corporation imply 
 authoritv to represent the corporation in such matter. 1 Pars. 
 
 (463)
 
 464 NOTICE. 
 
 on Cont., GG', Keenan vs. Duhuque, etc., 13 la., 375; Fulton Bh. 
 vs. Ifew Yo?'k, etc., 4 Paige, 127; Ilousatomc Bk. vs. 21a7'tin, 
 1 Met, 294; BJc. of the U. S. vs. Davis, 2 Hill, 451; Far- 
 mers', etc., BJc. vs. Payne, 25 Conn., 444. 
 
 You are further instructed, tliat a single director, simply as 
 such, has no authority to represent or bind a corporation ; and 
 although you may believe, from the evidence, that the said A. 
 B. was a director in the defendant corporation, and that be- 
 fore, etc., and while he was such director, he had knowledge, 
 or was informed of the fact, etc., still, these facts alone would 
 not show notice to the defendant, nor bind the corporation in 
 respect to such notice. 
 
 § 3. Facts Calling foi' Inquiry. — The court instructs the Jury, 
 that whatever is sufficient to put a purchaser of land upon in- 
 quiry, as to the existence of an unrecorded deed, is sufficient 
 notice of such deed. That in general, where notice isrequu-ed 
 to affect the rights of parties, a knowledge of such facts as 
 ought to put an ordinarily prudent person upon inquiry, is 
 deemed in law equivalent to notice of the facts, to the knowl- 
 edge of which such inquiries would have led. Bump on 
 Fraud. Con., 232; Forles vs. How, 102 Mass., 427; Beaton vs. 
 Fraiher, 84 III., 330; Rice vs. Melendy, 41 la., 395. 
 
 Whatever is notice enough to excite attention, and put a 
 party on his guard, and call for incniiry, is notice of every- 
 thing to which such inquiry might have led; and every un- 
 usual circumstance is ground of suspicion, and prescribes in- 
 quiry. Russell vs. Rauson, 76 111., 167. 
 
 The court instructs you, that to charge a person with notice, 
 on the ground that he had knowledge of such facts as ough.t 
 to have put him upon inquiry, it must appear, from the evi- 
 dence, that tlie information he had received was of that char- 
 acter that it was calculated to excite the attention of an ordi- 
 narily prudent person, and that such person, by the exorcise 
 of reasonable and ordinary diligence, could, upon inquiry and 
 investigation, arrive at the knowledge of the fact with which 
 he is sought to be charged. City of Chicago vs. Witt^ 75 
 III, 211. 
 
 § 4. Recitals in Beefl. — The jury are further instructed, 
 that tlie recitals in the deed in the chain of title, under which
 
 NOTICE. 4G5 
 
 a person claims, are such notice to a purchaser of the property 
 as will put him on inquiry as to the nature and elfect of the 
 matter referred to in the recitals. C. <& R. 1. R. R. Co. vs. 
 Kennedy^ 70 111., 350 ; Mosle vs. Kuhlman, 40 la., 108. 
 
 § 5. Unrecorded Deeds. — The court instructs the jury, that 
 a deed is valid between the parties without being recorded. 
 The object of the recording law is to furnish notice as to the title 
 to real estate, and of liens and incumbrances thereon ; but in 
 default of recording, if parties have such notice in any other 
 form, all the purposes of the law are elfected to the same 
 extent as though the deed were recorded. Russell vs. Rauson^ 
 76 111., 167; IShotwell vs. Harrison, 30 Mich., 179. 
 30
 
 CHAPTER XXXVII. 
 PAETNEESHIP. 
 
 Sec. 1. Who are in fact partners. 
 
 2. Partnership — How formed. 
 
 3. As to third persons. 
 
 4. Holding oneself out as a partner. 
 
 6. Pai tnership in the name of one partner. 
 
 6. Test of partnership — Partners as between themselves. 
 
 f 7. Powers of partners to bind their firm. 
 
 8. What acts do bind — Partner using partnership creditor effects. 
 
 9. Acts beyond the scope of the partnership business. 
 
 10. Bound by ratification. 
 
 11. When fraud of one partner binds the other. 
 
 12. Notice of disi-olution necessary, when. 
 
 13. Cannot sue each other at law. 
 
 14. When may sue at law. 
 
 § 1. Wlio are Partners, in Fact. — The court instructs the 
 jury, that to constitute a partnership, as to the alleged partners 
 themselves, it is only necessary that each of them contributes 
 either capital, labor, credit or skill and care, or two or more 
 of these, and that all the contributions are put together into a 
 common stock or common enterprise, to be used for the pur- 
 pone of can-ying on business for the common benefit. Pars, 
 on Part, 54; Story on Part, § 2. 
 
 § 2. Partnership — How Formed. — A partnership can only 
 exist as between the ]:!arties themselves, in pursuance of an 
 express or an implied agreement, to which the minds of the 
 parties have assented; the intention, or even belief, of one 
 party alone cannot create a partnership without the assent of 
 the others. Story on Part, § 8t); Pars, on Part, 6; Phillips 
 vs. Phillips, 49 111., 437. 
 
 § 3. As to Third Persons. — The jury are instructed, that 
 parties may so conduct themselves as to be liable to third per- 
 sons as partners, when, in fact, no partnership exists as 
 
 (46())
 
 PAETNEKSHIP. 4G7 
 
 between themselves. The public are authorized to judge from 
 appearances and professions, and are not bound to know the 
 real facts. 
 
 Persons may be co-partners, as to third persons, and brought 
 within all the liability of partners, as to third persons, who 
 are not partners as between themselves; and they will be so 
 regarded, as to third persons, if they voluntarily and know- 
 ingly so conduct themselves as to reasonably justify the pub- 
 lic, or persons dealing with them, in believing that they are 
 partners. ISpeer vs. Bishop^ 2-i Ohio St., 598; Daileij vs. 
 Coo)is, 64 Ind., 545. 
 
 § 4. Holding Oneself Ont as Partner. — The court instructs 
 the jury, that if a person voluntarily and knowingly holds 
 .himself out, by his acts or language, to the public or to third 
 persons, as the partner of another, and a third person deals 
 with that other on the faith of an existing partnership, then 
 the person so holding himself out will be liable as a partner to 
 the person so dealing, notwithstanding there was, in "'^act, no 
 such partnership. Pars, on Part., 61; Smith vs. KnU/Jit, 71 
 111., 148; Peck vs. Lush, 38 la., 93; Story on Part., § 64; Jen- 
 kins vs. Crane, 54 Wis., 253. 
 
 If you believe, from the evidence, that prior and up to the 
 time of the giving of the note, the defendant A. E. volun- 
 tarily and knowingly so conducted himself, in connection Mnth 
 the business carried on at, etc., as to reasonably justify the 
 public and persons generally dealing at that place, in suppos- 
 ing and believing that he was a partner with said C, and that 
 the plaintiffs, before they sold the goods, had been informed 
 that the said A. E. was interested as a partner in that business, 
 and that at the time they sold the goods and took the notes 
 they supposed and believed that he was a partner, and acted 
 on that supposition, then he would be liable on the note as a 
 partner, whether he was, in fact, a partner or not. 
 
 If you believe, from the evidence, that prior and up to the 
 time of the giving of the note introduced in evidence in this 
 case, A. E. voluntarily and knowingly so conducted himself, in 
 connection with the business of the firm of F. & E., as to jus- 
 tify the plaintiffs, and persons generally dealing with the firm, 
 in supposing and believing ihat he was a member of that firm,
 
 468 PAETKEKSIIIP. 
 
 and tliat tlie plaintiffs, before they sold the goods for wliicli 
 the note was given, had knowledge of these facts, and were 
 thereby induced to believe that A. E. was a partner in that 
 firm, and that, at the time they sold the goods and took the 
 note, they did suppose and believe that he was a member of 
 the firm, then he would be liable on the note as a partner, 
 whether he was, in fact, a partner or not. 
 
 When persons hold themselves out to the world by their 
 acts or declarations as partners, they will be liable as such, 
 whether such relation really exists between them or not. If 
 they knowingly permit their names to a])pear in the style of 
 the firm in the business cards, notices or advertisements of the 
 firm, they cannot esca])e liability for debts contracted in the 
 name of the firm. Ellis vs. Bronsoii^ 40 111., 455; Baryiett, 
 etc.^ vs. Blachnar, 53 Ga., 98; Uodd vs. Bishop, 30 La. An., 
 Part 2d, 1178. 
 
 If you believe, from the evidence, that prior and up to the 
 time the note introduced in evidence in this case was given, 
 A. E., voluntarily and knowingly, allowed and permitted the 
 business of the firm of F. & E. to be conducted in such a way 
 as to justify the public generally, and persons dealing with 
 the firm, in supposing and believing that he was a member of 
 the firm, and that the plaintiffs, before and at the time they 
 suld the goods, and took the note in question, had reason to 
 believe, and did believe, from the manner in which the busi- 
 ness was conducted, that he was a member of the firm, then 
 the plaintiff's will have a right to hold him liable on the note 
 as a member of the firm. 
 
 And in such a case, it is immaterial whether A. E. made 
 any representations personally to the plaintiff that he was a 
 member of the firm or not. 
 
 § 5. Partnership in the Name of one Partner. — The court 
 instructs the jury, that although they may believe, from the 
 evidence, that the business at S. was carried on in the name 
 of J. C. alone, this fact would not be conclusive that no part- 
 nership existed. The question of partnership does not de- 
 pend upon the name of the firm, but upon the agreement of 
 the parties as to the ownership of the property, and as to the 
 disposition to be made of the profits of the business.
 
 PAKTNEltSUIP. 4G9 
 
 If you believe, from the evidence, tliat L. and C. entered 
 into an agreement, bj which they were to engage in the busi- 
 ness of, etc., and that the business should be carried on in the 
 name of L.,with money to be furnished by C, L. agreeing to 
 contribute his time and labor to the business, and that the 
 parties should share equally in the ])rofits thereof, and if you 
 further believe, from the evidence, that the parties did engage 
 in such business, under that agreement, then they were part- 
 ners, so far as third persons were concerned. 
 
 § 6. Test of Partnership — Partners as between Themselves. — 
 The court further instructs the jury, that the criterion for de- 
 termining whether a partnership exists as between the part- 
 ners themselves, is to ascertain the intention and understand- 
 ing of the parties themselves, at the time the partnership is 
 alleged to have existed. Pars, on Part., 58. 
 
 And in this case, if 3'ou believe, from the evidence, that J. 
 and E., at the time in question, did not intend, or understand 
 that a partnership existed between them, and there was no 
 agreement that they should share the profits of the said busi- 
 ness of, etc., then, as to the matte:s involved in this suit, the 
 question of partnership should have no bearing on your minds, 
 in arriving at your verdict in this case. 
 
 That the best evidence and usual test of a partnership is the 
 sharing, between the alleged partners, of the pi-ofits and losses 
 of the business; and if you believe, from the evidence, that 
 there never was any agreement between J. and E. to share the 
 profits and losses of the business in question, then this would 
 be evidence tending to show that no partnership did, in fact, 
 ^ exist between them. 
 
 § 7. Power of Partner to Bind the Firm. — Every partner pos- 
 sesses full and absolute authority to bind all the partners, by 
 his acts or contracts, in relation to the business of the firm, in 
 the same manner, and to the same extent, as if he held full 
 power of attorney from them; and as between the firm and 
 third paities, who deal with it, in good faith and without no- 
 tice, it is a matter of no consequence whether the partner is 
 acting fairly with his co-partners, in the transaction, or not, if 
 he is acting within the apparent scope of his authority, and
 
 470 PAKTNERSHIP. 
 
 professedly for the firm. Pars, on Part, 172; Story on Part., 
 § 101; Pahlman vs. Taylor, 75 III, 629; First Natl. Bank 
 vs. Carjpenter^ 41 la., 518. 
 
 If a partnership, as such, engages in any transaction outside 
 of its regular business, the acts and declarations of one part- 
 ner, if proved, with respect to that transaction, bind the firm 
 as much as though they were made with respect to some mat- 
 ter in the course of its ordinary and customary business. San- 
 dilands vs. Marsh, 2 B. & Aid., 673; Boardnian et al. vs. 
 Adams et al., 5 la., 224. 
 
 § 8. \^\2Li Acts do not Bind — Partner Using Partnership Credit 
 or Effects. — The jury are instructed, that one partner has no 
 right to apply the funds or securities, or other effects of the 
 .partnership, in payment of his own private debts, without the 
 consent of his co-partners ; and if he does so, the creditor deal- 
 ing with such partner, if he knows the circumstances, will be 
 deemed to have acted in bad faith, and in fraud of the other 
 partners, and the transaction will be void as to them. Pars. 
 on Part., Ill; Story on Part., § 132. 
 
 You are further instructed, that one partner has no right 
 or authority to use the credit of the partnership, or to gi\e a 
 note, in the name of the firm, for his own debt, or in his own 
 individual transactions, without the consent ot his copartners; 
 and if he does so, the note or security given will be void in 
 the hands of any person who has knowledge of the ]3urpose 
 for which, and the circumstances under which, such note or 
 security was given. 
 
 You are further instructed that, when a note, or other 
 security, is given in the name of the firm, by one partner, in 
 payment of his own individual debt, the law raises a presum]> 
 tion that it was done without the knowledge or consent of 
 the other partners, and the burden of ])roving such knowledge 
 and consent, is ui)on the party alleging it. Story on Part., 
 § 133; Pars, on Part, 112. 
 
 § 9. Acts Beyond the Scope of Partnership Business. — The court 
 instructs the jury, that each member of a firm is presumed 
 to have, and has, authority to bind the firm within the scope 
 of the partnership business; but 'v\ order to bind the fii'm in
 
 PARTNERSHIP. 471 
 
 matters outside of or beyond the apparent scope of the part- 
 nership business, the authority of one partner to act for the 
 firm, must be shown, precisely the same as if any other 
 person had performed the act. McN'air vs. Piatt, 46 111., 
 211 ; Boardman et al. vs. Adams et al. 5 la., 224. 
 
 § 10. Bound by Ratification. — The jury are instructed, that 
 while one partner cannot rightfully ai)propriate partnership 
 funds to the payment of his individual debts, yet, if he does 
 do so, his acts, when they come to the knowledge of the 
 other members of the firm, should be clearly and promptly 
 repudiated; and if, when such knowledge comes to the other 
 members of the firm, they do not, within a reasonable time 
 thereafter, repudiate the transaction, they will be deemed to 
 have ratified it, and will be bound to the same extent as though 
 they had expressly authorized it in the first instance. Whether, 
 in this case, the debt in question was paid out of partnership 
 funds by the said A. B., and whether the other partners had 
 knowledge of that fact, and whether they did repudiate the 
 transaction, and notify the said, etc., of that fact, as soon as it 
 could reasonably be done, are all questions to be determined 
 by the jury, from a consideration of all the evidence in the 
 case. Pars, on Part., Ill; Marine Co., etc., vs. Qarver, ^^ 
 111., m. 
 
 § 11. When Fraud of one Partner Binds the Other. — The 
 
 court instructs the jury, that if a fraud is committed by one 
 ]:)artner, in the name of the firm, in the course of the partner- 
 ship business, it will bind the firm, even though the other 
 partners had no knowledge of the fraud, or participation in the 
 transaction to which it relates. Story on Part., § 131; Pars, 
 on Part., 150. 
 
 § 12. Notice of Dissolution Necessary, Wlien. — The court in- 
 structs the jury, that the law is, that when a partnership is 
 dissolved, and one of the partners continues the business as 
 before, the retiring partner, to protect himself from future 
 liabilities, should see that public notice of such dissolution, or 
 of his retirement, is given in some manner, so as fairly and 
 reasonably to notify the public of the fact of his withdrawal from
 
 4:72 PAKTNEESHIP. 
 
 the firm; and if lie does not do so, persons dealing witli the part- 
 ner who continues the business, without actual notice of the 
 dissolution, will have a right to relj on the credit of the origi- 
 nal firm. Pars, on Fart., 410; Story on Part., § 65, 160. 
 
 When one partner withdraws from the firm, and the busi- 
 ness is continued by the other partners, the retiring partner 
 should see that persons who have formerly dealt with the firm 
 have reasonable notice of such retirement, or else those who 
 continue to deal with the firm, without actual notice of his 
 withdrawal, can hold him liable as a member of the firm. 
 HoUgreve vs. Wmtker, 85 111., 470; Davis vs. Willis, 47 Tex., 
 154; Haynes vs. Carter^ 12 Heisk., 7; Austin vs. Holland, 69 
 K T., 571; Gilcrist vs. Brande, 58 Wis., 184. 
 
 § 13. Cannot Sue Each Other at Law. — The court instructs 
 the jury, that, under our practice, one partner cannot maintain 
 an action at law against his coj^artner for work and labor per- 
 formed, or for money paid, laid out or expended for, or on 
 account of, the partnership, nor for the use or occupation of 
 any of the pai-tuership property. 
 
 If you believe, from the evidence, that the plaintiff and 
 defendant were copartners during any portion of the time cov- 
 ered by the accounts in question, then you should exclude 
 from their consideration, all items of account, concerning, or 
 growing out of, the partnership business, if any such have 
 been proved. 
 
 If you believe, from the evidence, that the plaintiff and de- 
 fendant were partners as to a portion of the plaintiff's claim, 
 and not partners as to the residue, then the fact of partnership 
 will in nowise interfere with the plaintiff's right to recover as 
 to such residue. 
 
 If you believe, from the evidence, that the parties to this 
 suit, at the time in question, were partners, as to the said, etc., 
 and in the use thereof, and that the charges in plaintiff's bill 
 of particulars in relation to said, etc., and to the use thereof, 
 are matters pertaining to the said partnership, and growing 
 out of the same, and have never been settled or adjusted be- 
 tween the parties, then such matters cannot be litigated in this 
 suit, and you should disregard all such items in making up 
 vour verdict.
 
 PAKTNEESniP. 473 
 
 § 14. When May Sue at Law. — Altliongh the jury may be- 
 lieve, from the evidence, that the plaintiff and defendant were 
 formerly partners, and that the account sued on grew out of 
 their partnership business, and is claimed by the plaintiff as 
 the balance due to him, upon a settlement of such business, 
 still, if the jury further believe, from the evidence, that the 
 partnership had been dissolved, and the partnership business 
 settled between the parties, and a balance struck and agreed 
 upon as the amount due to the plaintiff, before the commence- 
 ment of this suit, then the plaintiff can maintain a suit for sueli 
 balance. Wi/cof vs. Panielly 10 la., 332; Jiidgwai/ vs. Grant, 
 17 111., 117.
 
 CHAPTER XXXVIII. 
 
 REPLEVIN. 
 
 NO PLEA OF JUSTIFICATION. 
 
 Sec 1. When the action lies. 
 
 2. Right of possession of property sufficient. 
 
 3. Burden of proof and what must be proved. 
 
 4. Wrongful detaining — Burden of proof. 
 
 5. Wrongful detention — How proved. 
 
 6. Demand, when not necessary. 
 
 7. Demand, when necessary — Plea von cepit and von definuet only. 
 
 8. Wrongful taking or a demand must be proved. 
 
 9. Demand, what essential to. 
 
 PLEA OF JUSTIFICATION. 
 
 10. Replevin against an officer. 
 
 11. Execution conclusive as to third persons or if not disputed. 
 
 12. Execution and indorsements, 2}>'i»tnfocie evidence, when. 
 
 13. Justification under execution, when demand necessary. 
 
 14. Interest of joint owner. 
 
 15. Property replevied from an officer — Burden of proof. 
 
 16. Plea of property in A. and B., attachment creditors. 
 
 17. Plea, property in a stranger. 
 
 18. Possession evidence of title. 
 
 19. Lien of execution — By statute. 
 
 20. Fraudulent sale. 
 
 21. Temporary possession by vendor. 
 
 22. Growing crops, when personal property. 
 
 23. Levy on crops and taking possession. 
 
 24. Property cannot be taken from one holding it under a replevin 
 
 bond. 
 
 25. Property of minor child. 
 
 26. Right of property in the plaintiff, to a part. 
 
 27. Building, personal property, when. 
 
 28. Liens of judgment and chattel mortgage. 
 
 29. Trover, property not found. 
 
 30. Bailee cannot deny bailor's title. 
 
 STOCK DISTRAINED. 
 
 31. Right to distrain cattle trespassing. 
 
 32. Must be taken, damage feasant. 
 
 (474)
 
 EEPLEVIN. 475 
 
 Note. — The common law rules governing' the action of replevin are vari- 
 ously modified by statute and by local usag^e, or practice, in the different 
 Btates; but the following instructions will be found to be generally applica- 
 ble to the practice in most of the states. 
 
 NO PLEA OF JUSTIFICATION. 
 
 § 1. Wlien the Action Lies. — The jury are instructed, tliat to 
 entitle the plaintiff to recover under the issues in this case, it 
 is only necessary that he should |)rove, by a preponderance of 
 the evidence, tliat he was the owner of the property in ques- 
 tion, and entitled to the possession of tlie same when this suit 
 was commenced, and that it had been wrongfully taken from 
 his possession by the defendant, or that it was then wrongfully 
 detained by him. Hill, on Rem. for Torts, 2; Eanon vs. Tar- 
 lell, 9 Cush., 407; Eggleston vs. Mundij, 4 Mich., 295; Flat- 
 ner vs. Good, 29 K W. Eep., 56; Moore's Justice, § 315 
 et seq. 
 
 § 2. Right to Possession of Property SufScient. — Tliat it is not 
 essential to a recovery by the plaintiff in this suit, that he 
 should have been, at any time, the absolute owner of the prop- 
 erty; it is sufficient if the proof shows, that before and at the 
 time of the commencement of tliis suit, the plaintiff was en- 
 titled to the possession of the property; that he denianded the 
 same of the defendant, before commencing the suit, and after 
 the plaintiff became entitled to such possession, and that the 
 defendant refused to surrender tlie property to the plaintiff 
 upon such demand. Campbell vs. Williams^ 39 la., 640. 
 Ilill. on Eem. for Torts, 20; Nolle vs. Epperhj, 6 Ind., 414; 
 Loomis vs. Youle, 1 Minn., 175; Bramwell vs. Rart, 12 Ileisk., 
 356. 
 
 The jury are instructed, that it is not necessary, in order to 
 support this action, as regards the issue of wrongful detention, 
 that there should have been a wrongful taking of the prop- 
 erty by the defendant; provided, the jury believe, from the 
 evidence, that the defendant had the same in his possession 
 when this suit was commenced, and then wrongfully detained 
 the same after a demand by the plaintiff for the possession 
 thereof. 
 
 If the jury believe, from 'lie evidence, that at the time this
 
 476 EEPLEVIN. 
 
 suit was commenced, the plaintiff was lawfully entitled to the 
 immediate possession of the property described in the decla- 
 ration, and that the defendant had the same in his possession, 
 and that before the snit was commenced, and while the plaint- 
 iff was 60 entitled to such possession, there was a demand 
 made for the property by the plaintiff, and a refusal to deliver 
 the same by the defendant, then the jury should find for the 
 plaintiff, upon the issue of wrongful detention. 
 
 In this action, the title of ownership of the property is not 
 necessarily involved. If the jury believe, from the evidence, 
 that the defendant Iiad the property in his possession, and that 
 the plaintiff made a demand on him for it before commencing 
 this suit, then the party who was entitled to the possession of 
 the property at that time, is the one entitled to 3^our verdict 
 in this case, as regards the issue of wrongful detention. 
 
 § 3. Burflen of Proof — Wliat Mnst be Proved. — The jury are 
 instructed, that before the plaintiff can recover in this action he 
 must prove, by a preponderance of evidence, that at the time 
 of the commencement of this suit he was the owner of the 
 ])roperty in question, or that he was then entitled to the im- 
 mediate possession of the same, and he must also fui-ther 
 prove, by a preponderance of the evidence, that the defend- 
 ant wrongfully took the property in question, or else that he 
 wrongfully detained it from the plaintiff, after a demand made 
 upon him by the plaintiff for the property. Bardwell vs. 
 StuUut, 23 N. W. Eep., 344. 
 
 In actions of this kind, if there is no evidence of a wrong- 
 ful taking of the property, and no proof of a demand of the 
 property before the commencement of the suit, then the 
 ])laintitf is not entitled to recover, unless the jury find, from 
 the evidence, and the instructions of the court, that the de- 
 fendant has, in some other manner, manifested an intention to 
 resist the plaintiff's claim to the property, or his right to the 
 possession thereof. 
 
 In this case neither a wrongful taking nor a wrongful de- 
 tention of the property is to be presumed without proof, but 
 to warrant a verdict against the defendant, his guilt must be 
 proved, by a preponderance of the evidence.
 
 REPLEVIN. 477 
 
 § 4. Burden of Proof of Wrongful Retaining. — The court in- 
 structs the jury, that to entitle the plaintiff to recover ujion 
 the issue of detention, it is incumbent upon the plaintiff to es- 
 tablish, by a preponderance of evidence, that the goods and 
 property replevied were in the possession of the defendant, or 
 under his control, and that he detained the same from the 
 plaintiff at the time the suit was commenced; and unless the 
 jury believe, from the evidence, that the property in question 
 was in the possession of the defendant, or subject to his con- 
 trol at the time the suit was commenced, and that he then 
 detained the fame from the plaintiff, then, as to the issue of 
 wrongful detention, the jury should find for the defendant. 
 Reynolds vs. McCormick, 62 111., 412. 
 
 § 5. Wrongful Detention, How Proved. — The court instructs 
 the jury, that if they believe, fi'om the evidence, that the 
 plaintiff was entitled to the possession of the property before, 
 and at the time of, the commencement of this suit, and that a 
 demand for the possession was made by the plaintiff upon the 
 defendant, and a delivery of the property refused by him, 
 while the plaintiff was so entitled to possession, and before the 
 commencement of this suit, then such demand and refusal are 
 evidence of a wrongful detention ; but they are not necessarily 
 the only evidence of such detention ; other facts and circum- 
 stances tending to show such detention, if proved, are proper 
 evidence to be considered by the jury; and if they believe, 
 from the evidence, and from such other facts and circum- 
 stances as the jury find to have been proved, that there was a 
 wrongful detention of the property, as explained in these in- 
 structions, then the proof of demand and refusal was unneces- 
 sary to prove a wrongful detention. 
 
 § 6. When Demand not Necessary. — If the jury believe, from 
 the evidence, under the instruction of the court, that the 
 plaintiff was the owner of the property, and entitled to the 
 possession of it, and that the defendant took the property 
 wrongfully from the possession of the plaintiff, then a demand 
 and refusal befoi-e the commencement of this suit is not neces- 
 sary to be proved, under the issues in this case, to entitle the 
 plaintiff to recover. Dickson vs. Randal^ 19 Kans., 212; 
 Jones vs. ^^ard, 77 N. C, 337. 
 
 ^
 
 478 EEPLEVIN. 
 
 When property is wrongfully taken from the possession of 
 the party legally entitled thereto, then no demand for the 
 property is necessary to enable the person bo entitled to the 
 possession to bring his suit in replevin. And in this case, if 
 the jury believe, from the evidence, that the plaintiff was the 
 owner of the {heifer) in quetion, and that defendant went to 
 plaintiff's pasture and took the {heifer) therefr- m without 
 plaintiff's permission, and against his will, then no demand 
 was necessary before commencing this suit. Gilchrist vs. 
 Moore^ 7 la., 9; Hill, on Eem. for Torts, 67; Nevyman vs. 
 Jenne^ 47 Me., 520; Stillman vs. Squire^ 1 Denio, 327; 
 Rhoades vs. Drummond, 3 Col., 374. 
 
 The court instructs the jury, that by this plea in this case, 
 the defendant claims title to the property in himself, {and in 
 one A. £.), and denies the right of property and of possession 
 in the plaintiff; and although the jury may believe, from the 
 evidence, that the defendant came rightfully into possession 
 of the projierty, still, under the pleadings in this case, it 
 is wholly unnecesKiry for the plaintiff to prove a demand 
 and refusal before commencing the suit, to entitle him to 
 a verdict of wrongful detention; provided, the jury further 
 believe, from the evidence, under the instructions of the 
 court, that the ])laintiff was entitled to the possession of tl e 
 property at the time of the commencement of the suit, lea- 
 ver vs. Dingley, 4 Greenlf., 306; Leiois vs. Masters^ 8 Blackf., 
 244; Hill, on Eem. for Torts, 66; Smith vs. McLean, 24 la., 
 322; Lewis vs. Smart, 67 Me., 206. 
 
 If the jury tind, from the evidence, under the instructions 
 of the court, that the defendant came lawfully into the 
 possession of the property in controversy, then they will find 
 for the defendant, unless they further find, from the evidence, 
 that the plaintiff, prior to the commencement of this suit, 
 made a demand upon the defendant for the property, and that 
 the defendant refused to surrender it upon such demand, un- 
 less the jury further find, from the evidence, that before the 
 commencement of this suit the defendant had, in some man- 
 ner, manifested an intention to resist the plaintiff's claim to 
 the property, or to deny his right to the possession thereof. 
 
 § 7. \Mien Demand Necessary — Pleas Non Cepit and Non De- 
 timiit Only. — If the jury believe, from the evidence, that the
 
 EEPLEVIN. 479 
 
 property in question came into the possession of the defend- 
 ant with the knowledge and consent of the plaintiff, then, 
 before the plaintiff could properly commence this suit, he 
 would have to make a demand on the defendant for a return 
 of the property, and unless it appears, from a preponderance 
 of the evidence, that he did make such demand, the jury 
 should find for the defendant, unless the jury further believe, 
 from the evidence, that the defendant, before the commence- 
 ment of this suit, had, by his conduct or language, or by both, 
 manifested an intention to disregard and repudiate any claim 
 of right or title in tlie property by the plaintiff. Hill, on 
 Eem. for Torts, 67; Lewis vs. Masters^ 8 Blackf., 244; Kel- 
 logg vs. Oleson, 2 N. W. Eep., 364. 
 
 That if the jury believe, from the evidence, that the de- 
 fendant borrowed the property in controversy from the 
 plaintiff for a tem])orary use or purpose, giving the plaintiff 
 to understand that he would return the property when- 
 ever the plaintiff should desire it, then the plaintiff would 
 not be entitled to commence this suit until after he had 
 first demanded the property from the defendant; and if the 
 plaintiff has failed to show such demand and refusal, by a 
 preponderance of evidence, then the jury should find for the 
 defendant; provided, the jury further find, from the evi- 
 dence, that before the commencement of this suit, the defend- 
 ant had done no act inconsistent with the plaintiff's right to 
 the property, or showing an mtention to repudiate the same. 
 Simpson vs. Wretm, 50 111., 222; Story on Bailments, § 266; 
 Moore's Justice, 322. 
 
 § 8. Wrongful Taking or Demand must be Proved. — If the jury 
 believe, from the evidence, that at the time this suit was brought, 
 the plaintiff' was entitled to the possession of the property, 
 still he is not entitled to recover in this suit upon the issue of 
 wrongful detention, unless it appears, from the evidence, tliat 
 the defendant wrongfully took the property, or unless the 
 plaintiff has proved a legal demand for the property before 
 this suit was brought, or some other facts and circumstances 
 showing an unlawful detention by the defendants, as explained 
 in these instructions.
 
 480 KEPLEVIN. 
 
 § 9. "VMiat Essential to a Demand. — In order to make a legal 
 demand of articles of personal property by one person from 
 another, such property must be indicated by name or by proper 
 words of description, or reference, so as to apprise the party 
 upon whom the demand is made what particular property is 
 demanded; otherwise such demand would not be sufficient 
 whereon to brhog replevin for the detention of such property. 
 
 [See Trover.] 
 
 PLEA OF JUSTIFICATION. 
 
 § 10. Replevin against an Officer. — The court instructs the 
 jury, that if they believe, from the evidence, that the defend- 
 ant R. was a constable of this county at the time of the levy 
 of the execution, ojffered in evidence in this case, and that 
 under such execution, as such constable, he levied upon the 
 property in question on, etc., at, etc., and also that the prop- 
 erty so levied upon was then the property of the defendant in 
 the execution, then the jury should find for the defendant. 
 
 The justice's docket, introduced in evidence in this case, is 
 sufHcient evidence of the rendition of the judgment mentioned 
 in the plea, and the jury should consider that fact as j^roved. 
 
 § 11. Execution Conclusive as to Third Person, or if not Dis- 
 puted. — That tlie execution with the indorsement thereon, in- 
 troduced in evidence in this case, is sufficient proof of the issu- 
 ing of the execution mentioned in the plea, the time when the 
 same was received by the officer, the date of the levy, and the 
 sale of the property in question, and the jury should consider 
 all these matters proved, as they appear in the execution and 
 the indorsements thereon. 
 
 § 12. Execution and Indorsements Prima Facie Evidence, When. 
 
 — The jury are instructed, that as regards the defendants, C, 
 D. and E. {the officer and plaintiffs in execution), the indorse- 
 ments and return of the officer ujion the execution read in evi- 
 dence, 2iTQ prima facie proof of the time when the execution 
 came into the hands of the officer, the time of the levy, upon 
 what property the same was levied, and what became of the 
 ]:)ro]:)erty. Hill, on Rem. for Torts, 391; Phillips vs. ElwelU 
 14: Ohio St., 210; Harper vs. Moffit et al, 11 la., 527.
 
 REPLEVIN. 481 
 
 § 13. Justification nnili^r Execution — WHien Demand Necessary. — 
 The jury are instructed, that if they believe, from the evidence, 
 that the defendant A. B. was an acting constable in and for 
 the county of C, and tliat as such constable, the execution 
 shown in evidence came into his hands, to be executed by him, 
 and that while the property in dispute was in the possession 
 and under the control of one or both of the defendants in said 
 execution, the said constable levied the execution upon the 
 property in controversy, as the property of one or both of the 
 defendants, such taking and levy would not be unlawful as to 
 the plaintiff, and in such case, unless the jury believe, from the 
 evidence, that a demand for the property was made before 
 bringing this suit, then the defendant would not be guilty of 
 a wrongful taking, or of a wrongful detention. Tuttle vs. 
 RoUnson, 78 111., 332. 
 
 § 14. Interest of Joint Owner. — One of the questions before 
 the jury in this case is the ownership of the property at the 
 time the execution was placed in the hands of the officer {or 
 was levied on the property in controversy)'^ and if the jury 
 find, from the evidence, that "W. J., the defendant in the ex- 
 ecution, owned the property levied on, or had an interest 
 therein as partner at the time of the delivery of the execution 
 to the officer (cr at the time the execution was levied on the 
 'property), then the property, or such interest therein, was sub- 
 ject to the lien of such execution and to a sale under the same, 
 and the plaintiff cannot recover. 
 
 § 15. Property Replevied from an Officer — Burden of Proof. — 
 The jury are instructed that the burden of proof is on the 
 ]ilaintiff to establish, by a preponderance of evidence, his right 
 to the possession of the property in controversy; and if the 
 jury believe, from the evidence, that the plaintiff has not es- 
 tablished his right to the possession of the property at the 
 time of the levy, by a preponderance of the evidence, the jury 
 should find for the defendant. 
 
 § 16. Plea of Property in A. and B., Attachment Debtors. — The 
 
 jury are instructed, that if they find, from the evidence, and 
 under the instructions of the court, that at the time the attach- 
 31
 
 482 REPLEVIN. 
 
 ment writ was levied, A. or B. bad any interest in the prop 
 erty in question, which was subject to the attachment writ, as 
 explained in these instructions, then the jury should find the 
 right of property in the said A. and B., or in one of them, as 
 the case may be, and find the defendant not guilty. 
 
 If the jury find, from the evidence, under the instruction 
 of the court, that neither A. nor B. had any intei-est in the 
 property, and further, that the plaintiff was the owner of, and 
 entitled to the possession of the property at the time this suit 
 was commenced, then the jury should find the property in the 
 plaintiff, and find the defendant guilty; provided, the jury 
 further find, from the evidence, that the defendant wrongfully 
 took, or wrongfully detained the property, as charged in the 
 declaration, and as explained in these instructions. 
 
 § 17. Plea, Property in a Stranger. — The court instructs the 
 jury, that the defendant in this case, with his otlier pleas, has 
 pleaded property in himself, and also in one A. B.; and if the 
 jury believe, from the evidence, that the defendant has shown 
 property in himself, or in the said A. B., he will be entitled 
 to a verdict from the jury, that they find the property in the 
 defendant, or in the said A. B., as the fact may be found by 
 the jury. 
 
 § 18. Possession Evidence of Title. — The court instructs the 
 jury, that under the issues in this case, the burden of proving 
 property in himself, so far as the right of property is con. 
 cerned, is upon the plaintiff; and if possession of the property 
 has been shown by the evidence to liave been with the said 
 A. B. at the time it is alleged to have been levied upon, then 
 such possession is prima facie evidence of title in the said 
 A. B. Hill, on Rem. for Torts, 62; Martin vs. Bay, 1 Black., 
 291. 
 
 § 19. Lien of Execution by Statxite. — The jury are instructed, 
 that the execution read in evidence, was a lien upon all the 
 personal property of A. B., the defendant therein, from the 
 time the execution came into the hands of the ofiicei-, and that 
 no sale or transfer of such property, by the said A. B., after 
 tliat timj, could destroy or affect such lien. And if the jury
 
 REPLEVIN. 483 
 
 believe, from the evidence, that the alleged sale and delivery 
 of the property, by A. B. to the plaintiff, was made after the 
 execution came into the hands of the officer, such sale would 
 be void as against the execution creditors, no matter whether 
 made in good faith and for a valuable consideration or not, 
 and the property could properly be taken on the execution. 
 Childs vs. Jones, 60 Ala., 352; Marsh vs. Newton^ 71 Ind., 22. 
 
 § 20. Fraudulent Sale. — If the jury believe, from the evi- 
 dence, that the property in question was sold to the plaintiff 
 by the defendant in the execution, before the execution came 
 into the hands of the officer (before the execution was levied^ 
 etc.), still, if the jury further believe, from the evidence, that 
 such sale was made to hinder or delay the creditors of the said 
 defendant in the collection of their debts, and that the plaint- 
 iff knew of the purpose of such sale and was a party to it, 
 assisting in such fraudulent purpose, then such sale was void 
 as against the execution creditors, whether the plaintiff" paid 
 a valuable consideration for the property or not. 
 
 If the jury believe, from the evidence, that the property in 
 controversy was in the possession of the plaintiff, he claiming 
 to be the owner thereof at the time it was taken upon the 
 execution, this is, prima facie evidence of ownership in him. 
 And if the jury further believe, from the evidence, that while 
 the plaintiff was so in possession the defendant took the same 
 from him, then the jury sLould find the right of property in 
 the plaintiff', unless the jury further find, from the evidence, 
 that the plaintiff did not own the property, or that the sale 
 thereof from C. to the plaintiff, was made with a view, on the 
 part, of C, of hindering, delaying or defrauding his creditors, 
 and that the plaintiff knew, or had good reason to know, of 
 such fraudulent purpose, at the time he purchased the prop- 
 erty. 
 
 § 21. Temporary Possession by Vendor. — If the jury believe, 
 from the evidence, that before the execution came into the 
 hands of the officer (or was levied upon the property), the 
 plaintiff" bought the property from the defendant, in the exe- 
 cution, in good faith, for a valuable consideration, and on the 
 same day took actual possession of the property, then, although
 
 484: EEPLEvm. 
 
 tlie jury may further believe, from tlie evidence, that he 
 afterwards loaned the property hack to the defendant in the 
 execution, for a temporary purpose, such loaning back, if made 
 in good faith, would not alone render or make void the plaint- 
 iff's title to the property, nor make it subject to the execu- 
 tion. 
 
 § 22. Growing Crops, Wlien Personal Property. — The court 
 instructs the jury, that growing crops, in law, are regarded for 
 some purposes as personal property, and for some purposes as 
 a part of the real estate upon which the crops are growing. 
 As between seller and purchaser of real estate, they are re- 
 garded as bolonging to the real estate, and will pass with the 
 conveyance of the land to the purchaser, un"'ess they are ex- 
 pressly reserved in writing. Carpenter vs. Jones, 63 111., 517. 
 
 § 23. Levy on Crops and Taking Possession. — Although the 
 law requires an oflBcer, in levying on personal property, to take 
 the same into his possession, yet, in the case of growing crops, 
 or other bulky or heavy articles, it only requiies him to take 
 such possession thereof, as the article, from its nature, will 
 reasonably admit of; and if the jury believe, from the evi- 
 dence in this case, that the officer, in attempting to make the 
 levy in question, went to the fields of grain levied on, and had 
 the same in his immediate view and ]:)resence, and notified the 
 defendant in the execution that he had taken the crops, under 
 the execution introduced in evidence, this would be a sufficient 
 levy on the property in question. Fierce vs. Roche^ 40 111., 
 292. 
 
 § 24. Propei-ty Cannot be Taken from one Holding it nnder 
 Replevin Bond. — If the jury believe, from the evidence, that 
 before the time of the levy of the execution, in this case, the 
 plaintiff has commenced a suit in rei)levin, etc., for the goods 
 in controversy, and that the goods were delivered to him 
 under the bond given by him in the replevin suit and that, at 
 the time of the levy of the execution, the action of replevin 
 was still pending and plaintiff's bond was still held by the 
 officer for the return of the goods, then the plaintiff had, during 
 the pendency of such replevin suit, the legal right to the pos-
 
 KEPLEVIN. 485 
 
 session of said goods. The action of rej^ilevin is a proceeding 
 against the property as well as against the person, and where 
 the plaintiff gives a bond and receives the property from the 
 ofScer who replevies it until the end of the replevin suit, the 
 property is regarded as in the custody of the law, the plaint- 
 iff becomes its custodian, and property so held cannot be 
 levied upon and taken from the plaintiff in replevin, and any 
 attempt to take it is a trespass. 
 
 § 25. Property of Minor Child. — If the jury believe, from 
 the evidence, that the plaintiff with the knowledge, permission 
 and consent of his father, earned money during his minority 
 in working for persons other than his father and that the 
 father consented to said earnings being paid to his son and that 
 they were so paid to him, then the money so earned was the 
 property of the plaintiff, and he could appropriate and use it 
 as he saw fit so far as the issues in this case are concerned. 
 
 If the jury believe, from the evidence, that the plaintiff 
 received the horse, when a colt, as a gift from his father, and 
 that the father at the time he made the gift had other prop- 
 erty, enough to pay all the debts he owed at that time, then it 
 is a matter of no importance whether he had property enough 
 to pay all his debts last spring or at any other time since such 
 gift was made. 
 
 § 26. Right of Property in the Plaintiff to a Part, etc. — In ren- 
 dering their verdict in this case, the jury have a right to find 
 the right of property, in a portion of the property in question^ 
 in one party, and the remainder in another party, if they be- 
 lieve, from the evidence, that such is the fact. If the jury do 
 so find, they should so state in their verdict. 
 
 § 27. Building Personal Property, When. — The court instructs 
 the jury, that where a building is owned by one person, and 
 the land on which it stands is owned by another, then the 
 building is personal property; and it will always remain per- 
 sonal property until the ownership of the land, and that of 
 the building, unite in the same person. Crljjpui vs. Morri- 
 son, 13 Mich., 23. 
 
 Where one wrongfully places his building upon the lot of
 
 4:86 KEPLEYIN. 
 
 anotlier, in sucli a way as to attach it to the ground, the build- 
 ing will belong to the owner of the land; but where one right- 
 fully and lawfully places his building on the land of another, 
 without any intention of having it belong to the owner of the 
 land, then it will not belong to such owner. Cooley on Torts, 
 307; 1 Hill, on Torts, 470; AdatTis vs. Goddard, 48 Me., 212; 
 1 Hill, on Eeal Prop., 5. 
 
 Where the building of one person stands upon the land of 
 another, a purchaser of the land will not become the owner of 
 the building, unless the owner of the building has abandoned 
 the possession of it, so that the purchaser of the land has no 
 notice of the builder's rights in the premises. 
 
 To make a house a part of the real estate, it is not neces- 
 sary that it should be so affixed that detaching it will disturb 
 the earth, or rend any part of the building. Where a house 
 is erected on a lot by any person claiming to own the land, 
 and intended by him, at the time, as a permanent fixture, the 
 house wnll become a part of the real estate, no matter how it 
 may be built upon the land. 
 
 If the jury believe, from the evidence, that R. was the 
 owner of the land on which the building in question stands, 
 and that M., as the tenant of R., placed the building on the 
 land with R.'s consent, and with the understanding or agree- 
 ment with E. that M. might remove the same at the expi- 
 ration of his lease, then the building would be personal prop- 
 erty, and it would not be conveyed by a conveyance of the 
 land, so long, at least, as M. and those holding under him con- 
 tinued in possession of the property, under the lease. Cooley 
 on Torts, 306; Barnes vs. Bar/ies, 6 Yt., 388; Smith vs. 
 £enso7i, 1 Hill., 176. 
 
 The jury are instructed, that although a building is prima 
 facie real estate, and belongs to the owner of the land on 
 which it stands, still it may be personal property, and owned 
 by a person who is not the owner of the land; and the build- 
 ing is personal property when it is erected by the builder, 
 with his own means, and for his own use, on the land of 
 another, in ])ursuance of an undei-standing between him and 
 the owner of the land, that the building shall belong to the 
 builder. 
 
 If the jury believe, from_the evidence, that M. took pos-
 
 EEPLEVIN. 487 
 
 session of tlie land on which the building stands, under a lease 
 from R., with the privilege of removing an^'^ improvements 
 placed thereon by himself, at or before the expiration of the 
 lease, and further, that M. continued to hold over and occupy 
 the premises, either by himself or his tenant, after the expi- 
 ration of the lease, with the knowledge and consent of R., then 
 the law would presume that such holding over was upon the 
 same terms as to the right to remove improvements, as were 
 contained in the original lease. 
 
 If the jury believe, from the evidence, that before the 
 house in question was built, the plaintilS and defendant entered 
 into a contract, by which defendant agreed to purchase the 
 land where the house was built from the plaintiff, and, under 
 that contract, went into possession of the land and erected the 
 house thereon, with the intention of having it remain there as 
 a permanent fixture to the land, then the house, as soon as it 
 was built, became a part of the real estate, and in law belonged 
 to the owner of the land, and any alleged contract authorizing 
 the defendant to remove the house therefrom, would have to 
 be in writing to be binding on the plaintiff. Crum vs. Hill, 
 40 Iowa, 506; 1 Hill, on Torts, 469; Groff vs. aConner^lQ 
 111., 421, 
 
 § 28. Lien of Judgment and Chattel Mortgage. — The jury are 
 instructed, that a judgment is not a lien upon personal prop- 
 erty of the debtor; an execution becomes a lien upon such 
 property from the time it is received by the officer {or levied 
 on the property), and not before. 
 
 If the jury believe, from the evidence, that plaintiff's chattel 
 mortgage was made in good faith to secure a honafide indebt- 
 edness, and that it was acknowledged, entered upon the justice's 
 docket, and recorded in the recorder's office, before the execu- 
 tion came into the officer's hands {or was levied on the 'prop- 
 erty), then the mortgage will hold the property in preference 
 to the execution. 
 
 If the jury believe, from the evidence, that the plaintiff's 
 only claim to the property in question was derived from the 
 mortgage in evidence, and that the property was allowed to 
 remain in the possession of the mortgagor, after the expiration 
 of the time for the payment of the debt secured by said mort-
 
 488 KEPLEVIN. 
 
 gage, and after a reasonable time for the mortgagee to take 
 possession of tlie proi;erty, and that while it was so in the 
 possession of the mortgagor, the execution introducetl in evi- 
 dence was placed in the hands of the officer {or was levied on 
 the property)^ then the law is, that the proj:!erty was liable to 
 such execution. Whisler vs. lioberts, 19 111., 274. 
 
 § 29. Trover — Property not Found. — The jury are instructed, 
 that if they believe, from the evidence, that the plaintiii" was 
 the owner of the property in question, and entitled to the pos- 
 session thereof before and at the time of the conunencement 
 of this suit, and that the defendant was guilty of the wrongful 
 taking {or of the wrongful detention) of the same, then, if for 
 any cause, the property, or any part of it, was not fonnd or 
 taken on the replevin writ, the plaintiff is entitled to recover 
 in this suit the value of the property not so found or taken, 
 and such damages, if any are proved, as the plaintiff has sus- 
 tained by the wrongful taking and detention {or by the wrong- 
 ful detention^ of the remainder of the property. 
 
 If the jury believe, from the evidence, that either from 
 want of title, or from want of demand for the possession of 
 the property before suit was brought, the plaintiff had no right 
 to the possession of the property, as explained in these instruc- 
 tions, when the replevin writ was issued, then he cannot recover 
 for the value of the property in controversy in this suit. 
 
 § 30. Bailee Cannot Deny Bailor's Title. — The court instructs 
 the jury, that if they believe, from the evidence, that the 
 defendant borrowed the property in controversy from the 
 plaintiff" for a temporary use or purpose, with the understand- 
 ing that he would return the property when demanded, and 
 that afterwaids, and before the commencement of this suit, 
 the plaintiff" made such demand, and that, upon such demand, 
 the defendant refused to deliver up the possession of the 
 property, then the jury should find the right of property in 
 the ])laintiff, and the defendant guilty of a wrongful detention 
 of the same. Simpson vs. W7'enn, 50 111., 222. 
 
 The court further instructs the jury, that if tliey believe, 
 from the evidence, that the defendant borrowed the ])roperty 
 in controversy from the plaintiff", then the defendant becnmo
 
 REPLEVIN. 4:S9 
 
 tlie bailee of the plaintiff, and he cannot set up title to tlie 
 property in hini.solf in this action to defeat the plaintiii's right 
 of recovery; and if the jury further believe, from the evi- 
 dence, that before the commencement of this suit, the ])laint- 
 iif demanded the property from the defendant, and that he 
 refused to give it up, claiming it as his own, then tlie jury 
 should find the projierty in the plaintiff, and the defendant 
 guilty of a wrongful detention. 
 
 STOCK DISTRAINED. 
 
 § 31, Right to Distrain Cattle Trespassing. — The court in- 
 structs the jury, that, by the laws of this state, if any {cattle 
 or hogs) shall be wrongfully trespassing upon the premises of 
 another, the owner or occupier of such prem'ses may take 
 such animals into his possession, and keep the same until all 
 damages, with reasonable charges for keeping and feeding, 
 are paid, or until such occ.ipier or owner of the premises shall 
 have had reasonable time to recover the same by suit against 
 the owner of the stock; provided, that within {twenty-four 
 hours) from the time of taking up said stock, the person so 
 taking them up notify the owner that he has done so. 
 
 The jury are instructed, that at the time and place of the 
 committing of the alleged tresjiass, as complained of in this 
 suit, no one was bound to fence his land against cattle that 
 were permitted by the owner to run at large in the public streets 
 or highways, and in such ease, when cattle are allowed to run 
 at large in the public highway, the owner is bound to take 
 such measures as will ])revent their escaping from the high- 
 way upon the adjoining lands of others; and if they do so es- 
 cape, they are, within the meaning of the law in this case, 
 wrongfully upon the land of such other person, whether such 
 lands are protected by a good and sufficient fence or not. 
 
 When the cattle of one person are wrongfully trespassing 
 upon the lands of another, as explained in these instructions, 
 the owner of the land has a right to take up such cattle while 
 so trespassing, and to detain them in his possession to secure 
 the payment of the damages done, if any, together with rea- 
 sonable charges for feeding and keeping the same; and he has 
 {twenty-four hours) in which to notify the owner that he has 
 taken them up.
 
 490 REPLEVIN. 
 
 If the Jury believe, from tlie evidence, that the cattle in 
 question either escaped from the defendant's pasture or were 
 permitted by him to run at large in the public highway, and 
 while so upon the public highway, they escaped therefrom, 
 and went upon the plaintiff's land without his knowledge or 
 consent, then they were wj-ongfully upon such land, and the 
 owner had a right, while they were there, to distrain them, 
 by taking them into his possession, aud keeping the same 
 until all damages, with reasonable charges for keeping and 
 feeding the stock, were paid by the owner; provided, that 
 within [twenty-four hours) from the time of taking up said 
 stock he notified the owner that he had done so. 
 
 § 32. Mnst be Taken Damage Feasant. — The court instructs 
 the jury, that, to warrant the distraining of cattle dunaqe 
 feasant, the cattle must be upon the premises owned or 
 occupied by the party distraining at the time they are dis- 
 trained. 
 
 The fact, if proved, that cattle may have passed over the 
 premises owned or occupied by a person, will not warrant a 
 distraint of the cattle after they get onto the premises of 
 another. 
 
 The owner or occupier of land has no right to distrain cattle 
 found upon his premises for damages done at another time 
 than the one when the distraint is made, whether such dam- 
 age was done upon the same or uj)on other lands of the party 
 distraining.
 
 CHAPTEK XXXIX. 
 RESIDENCE AND DOMICIL. 
 
 Sec. 1. Residence and domicil defined. 
 
 2. Domicil of husband tliat of wife. 
 
 3. Change of domicil or residence. 
 
 § 1. Residence and Domicil Defined. — The court instructs the 
 jury, that there may be a distinction between a man's domicil 
 and his residence; a person may have a domicil in one place 
 and his residence in another— a man's domicil is that place 
 where he has his true, tixed and permanent home; two things 
 must concur to establish a domicil, the fact of residence and 
 the intention of remaining, while to constitute residence with- 
 in the legal meaning of the term, it is sufficient if the person 
 has a settled, fixed abode for the time being for business or 
 for other purposes. 
 
 § 2. Domicil of Husband That of Wife.— The jury are further 
 instructed, as a matter of law, that the domicil of the husband 
 upon marriage at once becomes the domicil of the wife, and 
 the domicil of the wife continues to be the same as that of the 
 husband so long as they remain together as husband and wife. 
 Bouvier's Law Die; Webster's Die; Board of Sups. \&. Dav- 
 enport, 40 III, 197. 
 
 § 3. Cliange of Domicil or Residence. — The court instructs 
 the jury, that to constitute a change of domicil, there must 
 be the act of removal combined with the intention of remain- 
 ing. If the jury believe, from the evidence, that J. L., the 
 husband of the defendant, some time and about, etc., removed 
 from this state to, etc., with the intention of taking up his 
 permanent residence there and without the intention of return- 
 ing to this state as a place of residence, and that he never did 
 return to this state, then the domicil of the said J. L., at the 
 time of his death, was not in this state. Hayes vs. llayes^ 74 
 111., 312. 
 
 (491)
 
 492 EESIDENCE AND DOMICIL. 
 
 The domicil of the husband is that of the wife so long aa 
 thej live together as husband and wife, and the domicil of 
 the widow continues to be that of her late husband until she 
 changes it of her own volition, and if she does change her 
 domicil of her own motion and \olition hy taking up her 
 permanent residence elsewhere, then the presumption that her 
 domicil is that of her late husband ceases. Kennedy vs. 
 Kennedy, 87 111., 250; timith vs. Smith, 28 N. W. Eep., 296.
 
 CHAPTER XL. 
 SALE OF PEKSONAL PKOPERTr. 
 
 Sec. 1. When the title passes. 
 
 2. Conditional sale, 
 
 o. Transfer of the bill of lading'. 
 
 4. A thief acquires no title — He can convey none. 
 
 § 1. AVhen Title Passes. — There is a difference between a 
 sale of personal property and an agreement to sell; under a 
 mere agreement to sell no title passes; but whenever parties 
 have agreed upon the terras of a sale and the precise prop- 
 erty sold is identified and nothing remains to be done but to 
 deliver it, and it appears, from the evidence, that the parties 
 understood and intended the title to pass without actual de- 
 livery, then the title will pass without such delivery; but 
 where anything remains to be done, by way of selecting out 
 or separating the property from other property of the same 
 kind, for the purpose of identifying the property sold, then 
 no title will pass until the property has been so selected and 
 identitied. Robinson \&. Hirshfelder, 59 Ala., 503; Smith vs. 
 Sparhnaii, 55 Miss., 649 ; Fletcher vs. Ingrain, 46 Wis., 191; 
 nalm et al. vs. Fredricks, 30 Mich., 223. 
 
 If the jury believe, from the evidence, that tlie lumber which 
 the plaintiff claims to have bought was standing in a pile by 
 itself, and that the plaintiff and the said A. B., upon the 
 occasion in question, were speaking of that particular lot of 
 lumber and the plaintiff said, I will take the lumber at $20 
 per 1,000, and the said A. B. replied, you can have it (or the 
 lumber is yours), this would constitute a valid sale and suf- 
 ficient to pass the title at that time to the plaintiff, although 
 the quantity of lumber in the pile was then unknown, and it 
 was necessary to measure the lumber to ascertain the quantity 
 or the amount of money to be paid therefor. Burrows vs. 
 Wldtal-er, 71 N. Y., 291. 
 
 If the jurv believe, from the evidence, that at the time of 
 
 (493)
 
 494 SALE OF PERSONAL PEOPEETY. 
 
 the alleged sale A. was indebted to B. in the sum of $ , and 
 
 that A. turned out and sold the lumber in question to B., under 
 an agreement between tliem that the same should be applied 
 in payment or in part payment of such indebtedness, and that 
 they then put the lumber in chai-ge of one C, and that lie 
 agreed to take charge of the same and look after it for B., 
 then such transaction amounted to a completed sale and 
 transfer of the title, although the jury may further be- 
 lieve, from the evidence, that the amount of the lumber was 
 to be ascertained by future measurement, and the purchase 
 price to be determined by future inspection, the purchaser to 
 ]}ay any excess of the purchase price over his debt, and the 
 seller to make good any deficiency. Colwell vs. Keystone Iron 
 Co., 36 Mich., 51. 
 
 If the jury believe, from the evidence, that the plaintiffs 
 delivered the property in question to the said P. under an 
 agreement by which P. was to hold the same as the property 
 
 of the plaintiffs until he paid them the sum of % ,in weekly 
 
 installments of $ — , per week, and that the said P. has never 
 
 fully paid the said sum of % , but did attempt to sell the 
 
 said projjerty to the defendant, and that the defendant took 
 the property in goud faith, still the defendant,* in such case, 
 acquires no better title to the property than the said P. him- 
 self had, and the jury should find the right of property in the 
 plaintiff. Sanders vs. Keber et al., 28 Ohio St., 630. 
 
 § 2. Conditional Sale. — The jury are instructed, as a matter 
 of law, that where personal property is agreed to be sold and 
 is delivered under an agreement that the same is to be paid 
 for in future installments payable at different times, the owner- 
 ship and title of the property to remain in the vendor until 
 the full payment of the purchase price, then the full payment 
 is a condition precedent, and until a full performance tlie 
 property does not rest in the pui-chaser. 
 
 If the jury believe, from the evidence, that the plaintiff sold 
 the machine in question to A. B. at an agreed price to be paid 
 at a future time, and then delivered the said machine to the 
 said A. B., but upon the exjiress condition and agreement 
 that no title should ]:»ass to him until after the purchase price 
 was paid in full, and that, in the meantime, the title should 
 remain in the ])laintiff, then, if the jury further believe, from
 
 SALE OF PERSONAL PEOPEKTT. 495 
 
 the evidence, that the purchase price has never been paid in 
 fill], the machine still remains the property of the plaintiff. 
 Jowers vs. Blandy, 58 Ga., 379; Bradshaw vs. Warner, 54 
 Ind., 58. 
 
 The court instructs the jury, that although the written con. 
 tract introduced in evidence in terms speaks of the said ma- 
 chines as having been rented from the said plaintiff to the 
 said P. and calls for installments of payments to be paid as 
 rent, still, if the jury believe, from the evidence, and from all 
 the facts and circumstances proved on the trial, that a sale was, 
 in fact, intended between the parties, and that stipulated pay- 
 ments were in reality understood to be payments upon the 
 purchase money, and that the machine was delivered by the 
 said plaintiff to the said P. under such contract, and if the jury 
 further believe, from the evidence, that the defendant after- 
 wards purchased the said machine from the said P. in good 
 faith, relying upon his possession and apparent ownershi]), and 
 paid him for the same, and without any knowledge that the 
 plaintiff had not been paid in full therefor or that he set up 
 any claim to the said machine, then the jury should find the 
 right of property in the defendant. Oeer vs. Churchy 13 Bush, 
 430; Domestic Sewing Maddne Co. vs. Anderson^ 23 Minn., 57. 
 
 § 3. Transfer of Bill of Lading. — The jury are instructed, as 
 a matter of law, that the transfer of a bill of lading in g0(;d 
 faith in the ordinary course of business and for valuable con- 
 sideration operates to transfer to the holder thereof the title 
 to the goods mentioned or covered by the bill of lading. Davis 
 vs. Russell, 52 Cal., 611; Cochrane vs. Riply, 13 Bush, 495;^ 
 Cent. Sav. Bk. vs. Garrison, 2 Mo. App., 58 ; Price vs. Wis- 
 cojisin, etc., Ins. Co., 43 Wis., 267. 
 
 § 4. A Tliief Acquires no Title and Can Convey None. — The 
 
 court instructs the jury, that by a larceny of goods a thief ac- - 
 quires no title to them, and if he attempts to sell the goods he 
 cannot convey any title to them as against the person from 
 whom they were stolen. But whether, in this case, the horse 
 formerly belonged to the plaintiff, and whether the said A. B. 
 stole the horse from him, etc., etc., are all questions of fact to 
 be determined by the jury from the evidence in the case. 
 Breclienridge vs. McAfee, 55 Ind., 141.
 
 CHAPTER XLI. 
 
 SLANDER AND LIBEL. 
 
 SLANDER NO PLEA OF JUSTIFICATION 
 
 Sec. 1. Nature of the action. 
 
 2. Malice and damages presumed from speaking actionable words. 
 
 3. All the words need not be proved. 
 
 4. Malice defined. 
 
 5. Words presumed to have been used in their ordinary meaning. 
 
 6. Charge of fornication or adultery. 
 
 STATUTE OF LIMITATIONS PLEADED. 
 
 7. Charge of dishonesty. 
 
 8. Charge of arson by innuendo. 
 
 9. Charge of murder by innuendo. 
 
 10. Words must be proved iis charged. 
 
 11. Words not spoken maliciously, 
 
 12. Anger no justification. 
 
 13. Anger in mitigation. 
 
 14. Slanderous words explained. 
 
 PLEA OF JUSTIFICATION. 
 
 15. All the words need not be proved. 
 
 16. Plea of justification, how proved. 
 
 17. When the plea does not impute crime. 
 
 18. Plea of justification filed in good faith. 
 
 19. Office of the plea of justification. 
 
 20. Repeating reports. 
 
 LIBEL. 
 
 21. Libel defined. 
 
 22. Malice defined. 
 
 23. Damages presumed, when. 
 
 24. Plea of justification. 
 
 25. Malice, when presumed. 
 
 26. How the words are to be understood. 
 
 27. Plea of justification an aggravation of damages. 
 
 28. Plea of justification, when not an aggravation. 
 
 29. Mitigation of damages. 
 
 80. No plea of justification filed. 
 
 31. General issue impliedly admits, etc. 
 
 (496)
 
 SLANDER AND LIIiEL. 497 
 
 NO ri.KA OF JUSTIFICATION FILFD. 
 
 § 1. Nature of the Action. — The court instructs the jury, 
 that slander is regarded in ]aw as a malicious wrong and 
 injury, and an action for it has as legitimate a standing in a 
 Court of justice as any other action. 
 
 § 2. Malice and Damage Presumed from Speaking Actionable 
 Words. — The jury are instructed, that words that impute to a 
 party the commission of the crime of {larceny) are actionable 
 in themselves, and the law presumes that the party uttering 
 them intended maliciously to injure the person concerning 
 whoiri they are spoken, unless the contrary appears from the 
 circumstances, occasion or manner of the speaking of the 
 words. 
 
 All the plaintiff is bound to prove on his part to entitle 
 him to recover in this case is the speaking, by the defendant, 
 of enough of tlie slanderous words charged in the declaration 
 to amount to a charge of {stealing or larceny) against the 
 plaintiff; and if the jury believe, from the evidence, that the 
 defendant is guilty of the speaking of the slanderous words, 
 charged in the declai-ation, of and concerning the plaintiff, 
 then express malice or ill-will need not be proved. Malice, 
 in its legal sense, means a wrongful act, done intentionally, 
 wnthout just cause or excuse. Smart vs. Blanchard, 42 N. H., 
 137; LicJ& vs. Owen, 47 Cal., 252; Wilson vs. Noonan, 35 
 AVis., 321; RearicJc vs. Wilcox, 81 111., 77; Pennington vs. 
 Meeks, 4t5 Mo., 217; Indianapolis, etc., vs. Ilorrel, 53 Ind., 
 527. 
 
 If the jury beh'eve, from the evidence, that the defendant 
 spoke and publislied,of and concerning the plaintiff, the words 
 charged in the declaration, then the law presumes they were 
 spoken maliciously, and with a view to defame and injure the 
 plaintiff; and this presumption of law can only be rebutted by 
 evidence that the words were spoken in what is known as a 
 privileged commiknication, as explained in these instructions 
 (and there is no evidence that they were so spoken in this 
 case). 
 
 If the jury believe, from the evidence, that the defendant, 
 in speaking of the plaintiff, in the presence and hearing of 
 32
 
 498 SLANDER AND LIBEL. 
 
 Others, used the words, "She is a whore," or "She is a damned 
 whore," {or other actionahle words char geclin the declaration)^ 
 then the words are actionable in thenHelves, and the hiw im- 
 ph'es that they were used witli a malicious intent to defame 
 the character of the plaintiif, and express malice need not be 
 proved. Klewin vs. Bawnan. 53 Wis., 244. 
 
 If the jury believe, from the evidence, that the defendant 
 spoke the words charged in the declaration, in the presence 
 and hearing of others, intending to charge the defendant witli 
 having committed the crime of, etc., then the law wull imply 
 malice, and malice need not otherwise be proved. 
 
 § 3. All the AVords Need not be Pi'oved. — The court instructs 
 the jury, that while it is necessary to entitle the plaintiff to 
 recover in an action of slander, that lie should prove the slan- 
 derous words alleged in the declaration, still it is not necessary 
 to prove all the words that are charged to have been spoken. 
 It is sufficient to prove, substantially, the words in some one 
 or more of the statements of slanderous words contained in the 
 declaration. Hill, on Rem. for Torts, 375. 
 
 To authorize a verdict for the plaintiff in an action of 
 slander, it is not necessary that all the slanderous words alleged 
 in the declaration should be proved, unless it takes them all to 
 constitute the slander charged; and, in this case, if ihe jury 
 believe, from the evidence, that a sufficient number of the 
 words charged in the declaration to amount, in their common 
 meaning, to a chai-ge of {larceiiy) against the plaintitf, have 
 been proved to have been spoken by the defendant, as charged 
 in the declaration, then the jury sliould find the issues for the 
 plaintiff. BaA'er vs. Young, 44il\\ , 42; Du f res)ie ys. Weise, 
 4G Wis., 290; Bolt vs. Bicdwkj, 28 K W. Eep., 282. 
 
 § 4. Malice Defined. — The jury are instructed, that the tei-m 
 malice has, in \a.\v, a two-fold signification. There is what is 
 known as malice in fact and malice in law, qf implied malice; 
 in the legal sense, as applied to this case, malice signifies the 
 motive which prompts a wrongful act intentionally done with- 
 out justification or legal excuse, as explained in these instruc- 
 tions.
 
 SLANDER AND LIBEL. 499 
 
 § 5. Words Presumed to be Used in tlieir Ordinary Meaninir. — 
 
 The jury aie instructed, that when one ] erson utters slander- 
 ous words concerning another, which, in their ordinary and 
 common signification, impute the crime or offense of, etc., it 
 must be presumed it was in that sense tliey were used, and un- 
 derstood by the bystanders wlio heard them, unless other 
 words are used at tlie same time which limit or qualify the or- 
 dinary meaning of the slanderous words used; and a defend- 
 ant, when sued, cannot excuse his guilty conduct by an 
 explanation in his testimony, tliat he did not use the words to 
 impute the crime or offense tliereb}^ indicated; provided, the 
 jury believe, from the evidence, that the defendant spoke the 
 words, as charged. Miller vs. Johnson, 79 111., 58. 
 
 § 6. Charge of Fornieation or Adultery. — The court instructs 
 the Jury, that words, which, in their common acceptation, 
 amount to a charge of fornication or adultery, if spoken in the 
 presence of others, and not spoken under privileged circum- 
 stances, or for justifiable ends, as explained in these instruc- 
 tions, are slanderous and actionable in themselves, and the law 
 will imply malice from the mere speaking of such words. 
 SchmisseuT vs. Kreilieh, 92 111., 347; Dufresne vs. Weise, 46 
 Wis., 290; Bolt vs. Budwig, 28 K W. Rep., 282. 
 
 The words, etc., charged in the declai-ation, do amount to a 
 charge of fornication or adultery; and if the jury believe that 
 the defendant uttered those words of and concerning the 
 plaintiff, in the presence and hearing of others, as charged in 
 the declaration, the jury should find the defendant guilty. 
 
 STATUTE OF LIMITATIONS PLEADED. 
 
 § 7. Charge of Dishonesty. — If the jury believe, from the 
 evidence, that at or about the time charged in the declaration, 
 the plaintiff was engaged in the business of, etc., and that the 
 defendant, in a conversation with the plaintiff, in the presence 
 and hearing of other persons, within {one year) before the 
 commencement of this suit, said to the pilaintiff, " You are a 
 rascal; yon have put your property out of your hands to cheat 
 your creditors out of their pay," and that this was said with 
 an intent to charge the plaintiff' with having fraudulently con- 
 veyed his property witli intent to defraud his creditors, or to
 
 500 SLAXDEK AND LI TEL. 
 
 hinder or delay tliem in tlie collection of their just debts, then 
 the jury should find the defendant guilty, and assess the plaint- 
 ifif's damages at what they think is jnst and right, under the 
 evidence in this case. Cooley on Torts, 202; Nelson vs. Bor- 
 chenius, 52 111., 236; PhilUps vs. Jloefer, 1 Penn. St., 62; 
 F'dzgerrold vs. Hedfield, 51 Barb., 484; On- vs. Skojield, 56 
 Me., 483. 
 
 If the jury believe, from the evidence, that at or about thc! 
 time stated in the declaration the plaintitf was engaged in the 
 business of, etc., and that the defendant, in a conversation with 
 the plaintiff, in the presence and hearing of other persons, and 
 within {o7ie yea)') before the commencement of this suit, said to 
 the plaintiff, " You have put your property out of your 
 hands," etc., and that these words were spoken without quali- 
 fication by other language or circumstances, sliowing that the 
 defendant did not intend the natuial and ordinary meaning of 
 the words used, then the jury should find the defendant 
 guilty, and assess the plaintiff's damages at what they deem to 
 be right and proper under the evidence. 
 
 Words spoken of another which, in their common accepta- 
 tion, charge him witli selling or disposing of his property with 
 an intent to defraud, hinder or de^ay his creditors of their just 
 debts, are actionable in themselves without showing special 
 damage arising therefrom. The law will imply both malice 
 and damage from the speaking of such words, if the jury 
 believe, from the evidence that such words were spoken, as 
 charged in the declaration. 
 
 § 8. Charge of Arson by Tnnuenflo. — The court instructs the 
 jury, that'if they believe, from the evidence, that before the 
 time when the slanderous words are chai-ged to have been 
 spoken, the defendant's dwelling house had been burned, and 
 that afterwards, and within {one year) before the commence- 
 ment of this suit, the defendant, in the presence and hearing 
 of third persons, spoke the words, "She burned my house up," 
 or the words, "I have got rid of my old house burner," or the 
 words, "She is an old house Imrner;" and if the jury further 
 believe, from the evidence, lliat in the speaking of said words, 
 the defendant intended to convey the idea and to charge that 
 the plaintiff had willfully and feloniously burned the said
 
 SLAKDEK AND LIUEL. 501 
 
 house of defendant, and tluit the peisons liearing tlic laniruage 
 so understood him, then the speaking of such words would be 
 slanderous, and the jury should liud the defendant guilty. 
 
 § 9. Charge of Murder, by Innuendo.— If the jury believe, 
 from the evidence, that the defendant, within {one yea?') be- 
 fore the commencement of this suit, in speaking of and con- 
 cerning the plaintiff, spoke the words, " She killed my father,'' 
 in the presence and hearing of third persons ; and further, that 
 in speaking these words, the defendant intended to charge the 
 plaintiff with having willfully and feloniously caused the death 
 of defendant's father, then such words were slanderous, and 
 tlie jury should find for the plaintiff. 
 
 § 10. Words Must be Proved as Charged. — The jury are in- 
 structed, that to entitle the plaintiff' to recover in this suit, lie 
 nmst prove the speaking of the words alleged in the declaia- 
 tion; other words of like meaning, or equivalent words or 
 expressions, will not sutfice. 
 
 Though the jury may believe, from the evidence, that the 
 defendant spoke words which are equivalent to the words 
 charged in the declaration, and which convey the same mean- 
 ing, still, if the jury further believe, from the evidence, that 
 the words proved are not, substantially, the same words as tliose 
 charged in the declaration, then the plaintiff is not entitled to 
 recover. JFlinn vs. Barlow^ 16 111., 39. 
 
 The plaintiff is not entitled to recover upon the proof of 
 the sjeaking of words which are only similar to, or have the 
 same meaning as, the words charged in the declaration, but 
 are not the same words. She can only recover upon proving 
 the speaking of the material words of some one or more of 
 the slanderous statements charged in the declaration, precisely 
 as therein charged. WMaoe vs. Dixon, 82 111., 202. 
 
 The burden of ])roof in this case is upon the plaintiff, and 
 to entitle her to recover, it is incumbent on her to prove, by a 
 preponderance of all the evidence, that the defendant spoke 
 of and concerning the plaintiff" the slanderous charges, or some 
 one or more of the slandei'ous charges, contained in lier dec- 
 laration, in the precise words and language in which they 
 are therein set forth.
 
 502 SLAKDER AND LIBEL. 
 
 And if the jurv believe, from all the evidence in the caeo, 
 that the plaintiff lias failed to establish the speaking of such 
 Avords, by a preponderance of all the evidence, then the jni'V 
 should find the defendant not guilty. 
 
 Proof of the speaking of the following words {a7}y words 
 different from those charged in the declaratioii) — if the jury 
 find, from the evidence, tliat the speaking of such words lias 
 been proven — does not prove any of the charges laid in the 
 declaration in this case. 
 
 In an action for slander, so many of the words complained 
 of must be proved as will establish the slander, in the precise 
 words charged in the declaration; other words of similar im- 
 port, or equivalent words, if proved, will not sustain the 
 action. 
 
 § 11. Words not Spoken l^Ialieionsly. — The jury are instructed, 
 that to constitute slander, it is not necessary that a person 
 should intend to make a false charge; the real test is, did the 
 speaker intend by the words used, to make the charge alleged 
 in the declaration, did the hearers understand that he so 
 intended, and was the charge false? Shull vs. Haynwnd, 23 
 Minn., QQ. 
 
 An action for slander will not lie, for words spoken under 
 such circumstances as would lead persons present to believe 
 that they were not spoken as truth, and were not intended by 
 the speaker, or understood by the hearers, as intended to con- 
 vey tlie charge complained of in the declaration; and in this 
 case, though the jury may believe, fi'orn the evidence, that 
 the defendant did speak the slanderous words charged in the 
 declaration, still if the jury further believe, from the evidence, 
 and the facts and circumstances proved on the trial, that the 
 defendant did not intend to impute, and the hearers did not 
 understand him to impute, to the plaintiff, the offense which 
 the words might, under other circumstances, naturally import, 
 then the jury should find the defendant not guilty. 
 
 Though the jury may believe, from the evidence, that the 
 slanderous words were spoken as alleged in ]ilaintiff's declara- 
 tion, still, if the jury further believe, from the evidence, that 
 the words were not s])oken maliciously, and that the cliaracter 
 of the plaintiff' has not been injured thereby, then the jury are
 
 SLANDER AND LIBEL. 603 
 
 at liberty to bring in a verdict for the plaintiff for nominal 
 damages only. 
 
 If the jury believe, from the evidence, that the defendant 
 in speaking the words charged, was not actuated by malice, 
 but simply rejieated them as something lie had lieard from 
 others, and without any malice towards the plaintiff, and did 
 not intend to be nnderstood as imputing any offense to lier, 
 then the jury should find for the defendant. And it is a ques- 
 tion for the jury to determine from all the facts and circum- 
 stances proved, and from all the evidence in the case, whether 
 the defendant did thus repeat the words, and whether he acted 
 maliciously in so doing. Cuiniaerfoi'd vs. McAvoy, 15 III., 
 311. 
 
 § 12. Anger no Justification. — The court instructs the jury, 
 that anger is not a justification for the use of slanderous words, 
 and it ought not to be considered, even in mitigation of dam- 
 ages, unless the anger is provoked by the very person against 
 whom the slanderous words are used. Janch vs. Janch^ 60 
 Ind., 135. 
 
 In this case, if the jury believe, from the evidence, that the 
 defendant spoke of the plaintiff, any of the slanderous words 
 charged in the declaration, then it matters not who commenced 
 the conversation, or that the defendant was angi-y at the time, 
 unless his anger was wrongf ull}^ provoked, in whole or in part, 
 by the acts or language of the pilaintiff herself. 
 ^ If the jury believe, from the evidence, that the defendant 
 spoko in the presence and hearing of others, of and concern- 
 ing the plaintiff, the slanderous words charged in the declara- 
 tion, then it is immaterial whether the words were uttered 
 with or without anger or passion on the part of the defend- 
 ant, unless the jury further believe, from the evidence, that 
 such passion was wrongfully caused or provoked by the ];)laint- 
 iff; and even in such ease, anger or passion would be no jus- 
 tification, it could only be considered by the jury in mitigation 
 of damages, in case they find the plea of justif'cition not estab- 
 lished by a preponderance of testimony, and find the defendant 
 guilty. Bolt vs. Budwig, 28 N. W. Eep., 282. 
 
 § 13. Anger in Mitigation, When. — The jury are instrnclcd, 
 thafi while it is true, that angar or passion is not a justilicati<.)n
 
 50i SLAXDER AND LILEL. 
 
 for the nsG of slanderous words, or cveu a mitigating circum- 
 stance, unless provoked by the ]jersou against whom the slan- 
 derous words are spoken, yet, if the party com[)laining does 
 wrongfully provoke such anger, the fact may be taken into 
 account and considered by the jury in fixing the amount of 
 their verdict, in case they tind the defendant guilty. Free- 
 man vs. 2'insleyy bO 111., 49-± ; McCllntocJc vs. C'/v'cX", 4 la., 
 453. 
 
 Though the jury may believe, from the evidence, that some 
 of the slanderous words, charged in the ('eclaiation, were 
 uttered by the defendant, as charged, still, if the jury further 
 believe, from the evidence, that the words were spoken in Xhh 
 heat of passion, during a quarrel between the defendant on 
 one side, and the plaintiff and one A. B. on the other, and 
 that in the course of such altercation, the said A. B. and the 
 said plaintiff, without cause or provocation on the part of the 
 defendant, used violent and abusive language against the 
 defendant, and called him vile names, calculated to provoke 
 the passions, and that the slanderous words were used by 
 defendant while laboring under excitement and passion, caused 
 by such aljuse, then, while it is true that these facts do not 
 constitute a defense to the action, if proved, they are proper 
 to be taken into considei'ation by the jury as mitigating cir- 
 cumstances on behalf of the defendant. 
 
 § 14. Slanderous Words Explained. — Although the jury may 
 believe, from the evidence, that the defendant, in sj)eaking of 
 the plaintiff", U[:on the occasion referred to by the witnesses, 
 did say ("You are a thief, you stole my corn''); still, if the 
 jury further believe, from the evidence, that he accompanied 
 that charge with such explanations as Avouid show to the by- 
 stan lers, who lieard the conversation, that he only meimt to 
 charge the defendant with a trespass, and not with a crime of 
 larceny, then, so far as that chai-ge is concerned, the jury 
 should find for the defendant. Mitchell vs. Strong, 17 III, 
 597. 
 
 Though the jury may believe, from the evidence, that the 
 defendant did speak some of the slanderous words complained 
 of, still, if the jury further believe, from the evidence, that 
 the defendant in the same conversation, and in presence of the
 
 SLANDER AND LIBEL. 505 
 
 same persons, voliuitarilj and in good faith, recalled or took 
 back the slanderous language, or qualified such slanderous 
 words, so that the persons present would clearly understand, 
 from the wliole conversation, that the offense of {larceny) was 
 not imputed or charged upon the plaintiff, then such slander- 
 ous words will not afford the plaintiff' anj ground of action in 
 this case. 
 
 PLEA OF JUSTIFICATION FILED. 
 
 § 15. All the Words Need not be Proved. — The court in- 
 structs the jnry that the plaintiff is not bound to prove the 
 s[)eaking of all the words charged in the declaration; if tlie 
 jury believe, from the evidence, that the defendant si)oke of 
 and concerning the plaintiff, in the presence of others, any of 
 tlie slanderous Nvords charged in the declaration, the fair im- 
 port of which would be to charge the plaintiff" with the crime 
 of {larceny), then he is entitled to a verdict, unless the defend- 
 ant has estab'ished the truth of his plea of justification, by the 
 evidence, in the minds of the jury, beyond any reasonable 
 doubt {or hy a preponderance of the evidence). 
 
 § 16. Plea of Justification, How Proved. — The court instructs 
 the jury, as ; matter of law, that where a plea of justification, 
 in an action for slander, accuses the plaintiff" of a crime, the 
 defendant, in order to sustain the plea, must prove the guilt 
 of the plaiiiriff", as charged in the plea, beyond a reasonable 
 doubt. So far as the degi-ee of proof is concerned, the plaint- 
 iff" occupies the same position as if he were on trial upon an 
 indictment for the" off"ense charged. Merk vs. Gelzhaenser, 
 50 Cal., 631; Corhleyy^. Wilson, 71 111., 209. 
 
 The court instructs the jury, that, in this case, the plea of 
 justification alleges that the plaintiff was guilty of the crime 
 of {perjury), and to prove the truth of that plea, it is incum- 
 bent upon the defendant to prove everything requisite to 
 constitute the crime of {^-perjury) beyond a reasonable doubt. 
 Barton ^^.Thompson^Ai'o la., 30; Mott vs. Dawson, 4:Q la., 533. 
 
 The court further insti-ucts the jury, as a matter of law, 
 that in order to sustain his plea of justification, in this case, it 
 is incumbent upon the defendant to prove, to the satisfaction
 
 506 SLANDEK AND LIBEL. 
 
 of the jury, beyond all reasonaVe doubt, tliat the ])]aintiff was 
 guilty of the crime of {perjury), as alleged in said ]Dlea. 
 
 Among the other things necessary for the defendant to 
 prove, to the satisfaction of tlie jui'}', in order to maintain tl e 
 ])lea of justification, in tliis case, is the fact tluit the plaintiff, 
 before he testified as a witness in the case of E. v.-. S., referred 
 to b}'- the witnesses, was sworn to testify to the truth, the 
 wliole truth and nothing but the truth, by some officer au- 
 thorized by law to aiminister the oath. And if the jury find, 
 from the evidence, that tlie defendant has failed to prove that 
 fact upon this trial, beyond a reasonable doubt, then, as a 
 matter of law, tlie justification is not made out. 
 
 Contra: The court instructs the jury, that if they believe, 
 from the evidence, that the plaintiff was guilty of the crime of 
 {perjury), in manner and form as charged in the plea of justifi- 
 cation, filed in this case, then the jury should find for the de- 
 fendant. 
 
 In order to sustain the plea of justification, it is not neces- 
 sary that the defendant should establish the truth of that plea 
 beyond a reasonable doubt; it is sufficient if it is established by 
 a preponderance of the evidence. Coolcy on Toi-ts, 208; 
 Elliott vs. Yan Buren, 33 Mich., 49; Blaeser vs. Milwaukee, 
 etc., 37 Wis., 31 ; Knowles vs. Scrihier, 57 Me., 495 ; lioths- 
 child vs. Am. Cent. Ins. Co., 62 Mo., 356 ; Burr vs. Wilson, 
 22 Minn., 206 ; Jones vs. Graves, 26 Ohio St., 2. 
 
 The jury are further instructed, that though they believe, 
 from the evidence, that the plaintiff did testify, on the trial of 
 E. vs. S., that the trees in question were on the north side of 
 tiie hedge, that fact will not be sufficient to maintain the de- 
 fendant's plea of justification, unless the jury further be'ieve, 
 from the evidence, that the question of the location of said 
 trees, with reference to said hedge, was a material question in 
 the trial of said cause; and, also, that the plaintift' knowingly 
 and willfully testified to what he knew to be untrue in that 
 particular. 
 
 If the jury believe, from the evidence, that the plaintiff 
 was called as a witness in the case of E vs. S., and that, be- 
 fore testifying, he has sworn by {some officer anthorizecJ to ad- 
 minister oaths) to tell the truth, the whole truth and nothing 
 but the trutli, and that upon said trial the said ])laintiff know-
 
 SLANDER AND LICEL. 507 
 
 iiigly, willfully and falsely testified that the trees in question 
 were on the soutli side of a hedge, and that the question of 
 the location of said trees, in reference to said hedge, was a 
 material question on the trial of said cause, then the defense 
 of justification is made out, and the juiy should find for the 
 defendant. 
 
 The court further instructs the Jury, that if they believe, 
 from the evidence, that the plaintiff w^as sw^orn by, etc., to tell 
 the truth, the whole "truth and nothing but the truth, and 
 that he swore to the statements set forth in the defendant's 
 plea of justification, and that in so swearing he knowingly and 
 willfully swore to what was not true, and that such testimony 
 was material upon the trial of the suit of E. vs. S.^ then, and 
 in that case, the defendant would be justified in telling the 
 plaintiff that he swore falsely on that trial, or that he swore to 
 a lie on that trial. 
 
 § 17. Wlien the Plea Does not Impute Crime. — The court in- 
 structs the jury, that it is sufficient for the defendant to estab- 
 lish his plea of justification by a preponderance of evidence; 
 and if the jury believe, from the evidence, that the defend- 
 ant's plea of justification, in this case, has been proved by a 
 preponderance of evidence, the jury should find the defendant 
 not guilty, although they find that the defendant spoke the 
 words alleged. The law does not require the truth of such a 
 plea to be established beyond a reasonable doubt. 
 
 If the jury believe, from the evidence, that the defendant 
 spoke and published of and concerning the plaintiff the al- 
 leged slanderous words, in manner and form as charged in the 
 declaration, then the jury should find the defendant guilty, un- 
 less they further find, from the evidence, that the defense of 
 justification, set up in the defendant's plea, has been estab- 
 lished on this trial, by a preponderance of the evidence. 
 
 The court further instructs the jurj^, that if they believe, 
 from the evidence, that the defendant spoke and ]Hiblished of 
 and concerning the plaintiff the slanderous words chajged in 
 plaintiff's declaration, in manner and form as therein stated, 
 then the law will imply malice and a consequent mjury, unless 
 the jury further find that the defense of jastitication has been 
 established by a preponderance of evidence.
 
 508 SLAXDEK AA'D LILiEL. 
 
 § 18. Plea of Jmtlflcation in Good Faith. — Tlic court nislinets 
 the lury, that, altlioiigli the j should tiud, from llie evidence, 
 that ihe defendant in this case has not sustained his plea of 
 justification, still, the fact thi he lias lied such plea must 
 not of itself he regarded hj the jury as evidence of malice on 
 the part of the defendant. Ilarover vs. Ilarover 78 111., 412. 
 
 The court instructs the jury, that if they believe, from the 
 evidence, that the jiroof offered by defendant to sustain his 
 p'ea of justification, tended to ])rove said plea, then they 
 should consider that circumstance in arriving at tlieir conclu- 
 sion, as to whether the said plea was filed in good faith by the 
 defendant, and with the belief that he could sustain the same 
 by evidence. 
 
 r 
 
 § 19. Office of the Plea of Jnstifioation. — The court instructs 
 the jury, that in this state a defendant has a right to file as 
 many pleas as he deems necessary for his defense, and it is no 
 objection that the pleas are inconsistent with each other; each 
 plea stands by itself and forms a distinct issue. 
 
 And in this case, the fact that defendant has filed a plea 
 justifying the speaking of the words charged, does not relieve 
 the plaintiff from the necessity of proving the speaking of the 
 M-ords alleged. The plea of justification cannot be used to 
 convict the defendant; he is not bound to make his defense 
 till there is evidence showing his guilt. Fariiaii vs. Childs, 
 66 111., 541:. 
 
 § 20. Repeating Report. — If the jury believe, from the evi- 
 dence, that the defendant is guilt}^ of sjieaking the slanderous 
 words charged in the declaration, then the fact, if proved, 
 tliat defendant gave the statement as a report in the neighbor- 
 hood, and mentioned his authority for the statement, would 
 not exonei'ate him from liability. Fowlei' vs. Chicheste?'. 26 
 Ohio St., 9. 
 
 The jury are instructed, that, although they may believe, 
 from the evidence, that the defendant spoke the slanderous 
 words, charged in the declaration, of and concerning the plaint- 
 iff, yet, if the jury further believe, from the evidence, that the 
 defendant did not originate the slander, tiiat he merely re. 
 ported what some one else had said to him, or in his presence,
 
 SLANDEK AND LIBEL. 509 
 
 and that lie acted witliout malice in repeating it, and that the 
 ])lainti!f was, in reality, in no manner injured by the slander, 
 then the jury may give nominal damages only. 
 
 LIBEL. 
 
 § 21. Libel Defined. — The court instructs the jury, as a mat- 
 ter of law, that a libel may be defined to be a malicious de- 
 famation, expressed either by printing, writing, or by signs or 
 pictures tending to blacken the memory of one who is dead, 
 or to impeach the integrity, honesty, virtue or reputatiim of 
 one who is alive, and thereby expose him to public liatred, 
 contempt or ridicule, or pecuniary injury. 
 
 That every publication by writing or printing, which falsely 
 charges upon, or imputes to any one a crime which renders 
 him liable to punishment, or which alleges against him, that 
 which is calculated to make him infamous, odious or ridicu- 
 lous in public estimation, \% jprima facie a libel, and malice is 
 implied from the publication against the publisher thereof. 
 
 The jury are instructed, that conductors and publishers of 
 newspapers are not privileged to publish libel in the dissemi- 
 nation of news, but are liable for libelous publications, like other 
 ]iersons, without proof of ex])ress malice or actual ill-w^ill 
 against the person libeled. 
 
 § 22. Malice Defined. — Malice, or the term malicious, used 
 in the statute defining libel, means a wrongful act done in- 
 tentionally without just cause or excuse, and the law presumes 
 a malicious motive for making a charge which is false and 
 injurious, when no justifiable motive appears. There is also 
 malice in fact, that is, an actual, spiteful, malignant or revenge- 
 ful disposition, or ill-will against another. If the jury believe, 
 from the evidence, that the defendant published, etc., and 
 that the publication was injurious in itself and without excuse 
 or justification, as explained in the instructions upon that 
 point, then the law implies malice; and if there was actual in- 
 tention in the publication to injure the plaintiff, then there 
 was malice in fact, if there was no lawful justification. 
 
 Any unlawful act done willfully to the injury of another is, 
 as against that person, malicious, and it is not necessary that
 
 510 SLANDEK AND LIBEL. 
 
 the doer of sncli act should have ill-will or pursue auj- general 
 bad designs, in order to make him liable for such unlawful 
 acts; and in order to constitute malice in the publisher of a 
 libel, it is not necessai-y that the publisher should have personal 
 ill-will towards the person libeled, and an article published 
 against one in a newspaper, if false and defamatory, is action- 
 able, though the editor believed it to be true, and acted in 
 good faith ; and the law will imply malice from the publication 
 of such false and defamatory article, 
 
 § 23. Damages Presumed, When. — That language published 
 about any one, imputing an indictable offense, or fraud or 
 swindling or dishonesty in a particular transaction, or want of 
 integrity, is actionable without proof of special damage, and 
 damage is presumed in such case. If, therefore, the jury 
 believe, from the evidence, that the defendant published of 
 and concerning the plaintiff the language alleged in the dec- 
 laration, at the time alleged, and that such language imputed 
 to said plaintiff the offense or charge of dishonesty, swin- 
 dling or of fraud, and that the plaintiff suffered injury by 
 reason of said publication in his person, reputation, feelings or 
 business, and that no excuse or justification, as explained in 
 these instructions, has been shown in evidence, then the jui*y 
 could find the defendant guilty. 
 
 The law implies damages from the publication of libelous 
 words, without special proof of damages, and it also implies 
 that the person who publishes the libel, intends the injury 
 which the libel is calculated to produce. 
 
 If, therefore, the jury find, from the evidence, that the de- 
 fendant published the libel, or libels, charged in the declara- 
 tion, and that they were calculated to injure the plaintiff, by 
 exposing him to ridicule and contempt, shame or disgrace, or 
 to injuriously affect his reputation in the community, as to 
 honesty and integrity, then, unless justification is proved, the 
 jury ought to find the defendant "guilty." 
 
 § 24. Plea of Justification Filed . — If the jury believe, from 
 the evidence, that the defendant published the libel, as charged 
 in i)laintift"'s declaration, and that he has failed to show, by a 
 preponderance of evidence, the truth of the charges made
 
 SLANDER AND LIBEL. 511 
 
 against the plaintiff, in tlie pica of justification, tliun tlio jury 
 blioiild lind a verdict for plaintiff, and assess liis daninges at 
 siicli a sum as tlie jury believe, from tlie evidence, the plaint'tf 
 ought to recover, not exceeding the amount claimed in tlie 
 declaration. 
 
 The court instructs the jury, that if they believe, from the 
 evidence, that ])laintiff has proved the publication, as charged 
 in his declaration, and that defendant has failed to })rove, by 
 a preponderance of evidence, the truth of the plea of justili- 
 cation, as pleaded by him, then, and in such case, the jury 
 should render their verdict in favor of the plaintiff for such 
 an amount as they should believe, from the evidence, he is 
 entitled to recover. 
 
 If you believe, from the evidence, that the defendant com- 
 posed and published the printed article in plaintiff's declara- 
 tion mentioned and set out, as therein stated, then the jury 
 should Und the defendant guilty, unless they further believe, 
 from the evidence, that the charges, statements and insinua- 
 tions in said printed article are true, as stated in defendant's 
 plea. 
 
 § 25. Malice Presumed. Wlien. — If tlie jury believe, from 
 the evidence, that defendant ])ublished the libel of and con- 
 cerning the plaintiff, as charged in plaintiff''8 declaration, then 
 the law presumes malice on the part of the defendant against 
 the plaintiff, and it rests upon the defendant to rebut this pre- 
 sumption of malice, and if he has not done so, by a prepon- 
 derance of evidence, then tlie jury should find for the 
 plaintiff, unless they believe, from the evidence, the truth of 
 the facts stated in the plea of justification, filed by defendant. 
 
 § 26. How the Wonls Are to be Understood. — That the words 
 alleged to be libelous are to be taken in the sense that is most 
 natural and obvious, and in that sense in which those persons 
 to whom the publication should c:)me, would be most likely to 
 understand them. It is not necessary that the words pub- 
 lished should charge any specific crime or act of dishonesty in 
 direct terms, but if the necessary inference to be drawn from 
 the language used, is a chai-ge of an indictable offense or an 
 act of dishonesty, taking the words in their usual and ordinai-y 
 meaning, then they are actionable.
 
 512 SLANDEK AND LIBEL. 
 
 That wliere a person receives information, wliicli, if true, 
 is injurious to the character of another, he is not justified in 
 publishing that information to the prejudice of that other per- 
 son, merely because he believes it to be true or because he is 
 ignorant of its truth or falsity. 
 
 It is for the jury to determine, from the evidence, what is 
 the meaning of the words which are charged to have been 
 published of the plaintiff; they are to be construed in tlieir 
 plain and ordinary sense, and are to be taken to mean wliat 
 persons of ordinary intelligence would reasonably take them 
 to mean. 
 
 The declaration alleges, in the first count, that the words 
 alleged meant that plaintiff, for several mouths, had wrong- 
 fully, fraudulently and dishonestly, and with intent to cheat, 
 refused to pay rent to B. In order to sustain the defense of a 
 justification under this count, the jury must be satisfied, from 
 the evidence, that plaintiff's refusal or omission to pay rent 
 due, if there was such refusal and such rent due, was wrongs 
 ful, fraudulent, dishonest and with intent to cheat B. out of 
 the rent. 
 
 In the second count of the declaration it is alleged that the 
 words mentioned meant to charge that plaintiff", as a tenant, 
 was dishonest, and was one who would cheat and defraud a 
 landlord. This relates to plaintiff's character as a tenant, 
 and, in order to justify the charge imputed in these words, 
 the jury must be satisfied from the evidence, that, in respect 
 to plaintiff's dealings with B. in the matter of the tenancy, 
 plaintiff is shown to have been dishonest and intending to 
 cheat and defraud B., as his landlord. 
 
 § 27. Plea of Justification an Aggravation of Damages, Wlicn. — 
 
 If the jury believe, from the evidence, that the plea of justi- 
 fication in this case was not filed in good faith, and with an 
 honest expectation that the same could be proved, but was 
 resorted to for the purpose of injuring the plaintiff, then, if 
 the jury find defendant guilty, they may regard the plea of 
 justification as an aggravation of the original offense. 
 
 If the defendant, in this case, is found guilty of publishing 
 the libels, and tliat they have the meaning imputed to the 
 words in the declaration, and the attempted justification by
 
 SLANDER AND LI;;EL. 513 
 
 the dcfciulant is not made out, tlie jury liavc tlie right to 
 consider, from the evidence, whether the justification was 
 attempted in good faith, with an honorable intention and ex- 
 pectation of proving its truth, and if the jury find, from the 
 evidence, that it was not so pleaded, then tlie attempted justi- 
 fication amounts to a republication of the libel, and is an 
 aggravation of the damages. 
 
 § 28. Not an Aggravation of Damages, When. — The jury are 
 instructed, that when a plea of justification of libelous publi- 
 cations is filed in good faith, and with an honest expectation 
 that the same can be proved, and evidence is introduced 
 honestly, for the purpose of supporting it, such evidence may 
 be considered by the jury in mitigation of damages, even 
 though it be insufficient to prove the truth of the plea. 
 
 The filing of a plea of justification in this case does not 
 necessarily aggravate the damages, even though the jury find 
 that it has not been proved; provided, the jury further be- 
 lieve, from the evidence, that defendant filed such plea, be- 
 lieving in good faith that it was true, and that he could pro^'e 
 it. Thomas vs. Dunaway, 30 111., 373. 
 
 § 29. Mitigation of Damages. — In the event that the jury 
 do not find the plea of jiistification to be true, but do find the 
 defendant guilty, then the jury, in estimating the amount of 
 plaintiff's damages, may properly take into consideration such 
 facts, if any are proven, as may tend to show whether or not 
 the publication complained of was made by defendant in a hona 
 ■fide belief that the publication was true. . 
 
 And the jury may also take into consideration, in the esti- 
 mation of damages, any acts of the plaintiff connected with 
 the publication complained of, if any such are proven, which 
 were calculated to provoke the publication. 
 
 § 30. No Plea of Justification Filed. — If the jury believe, from 
 the evidence, that the defendant published the libel, as charged 
 in the declaration, then the plaintiff is entitled to recover in 
 this suit. 
 
 The court instructs the jury, that the evidence offered by 
 the defendant, in regard to plaintiff's general character, is evi- 
 33
 
 514 SLANDER AND LILEL. 
 
 dence, not in justification of the alleged libel, but in excuse or 
 extenuationj^ and for the purpose of diminishing the amount 
 of plaintiff's damages. If tlie plaintiff lias proved the pnbli- 
 c.ition of the libel, as alleged, then he is entitled to a verdict, 
 and the amount of his damages, if any, is to be determined by 
 all the evidence in the case. 
 
 § 31. General Issue Impliedly Admits, etc. — In this case, the 
 defendants, by their plea of not guilty, admit that the plaint- 
 iff is not guilty of the charge alleged in the libel, as set out in 
 the declaration. 
 
 The jury are instructed, that all the evidence admitted re- 
 garding the plaintiff's general character, and the existence of 
 reports and rumors affecting it, was not received for the pur- 
 pose of showing the plaintiff" guilty of the matters referred to, 
 his innocence being admitted by the defendant's plea of not 
 guilty; this evidence was received in excuse and in mitigation 
 of the plaintiff's damages, and for no other purpose.
 
 CHAPTER XLII. 
 TENDER. 
 
 Sec. 1. What constitutes a valid tender. 
 
 2. Burden of proof. 
 
 3. Tender as a gift or present. 
 
 4. On condition of receipt in full. 
 
 6. WiUingness to pay but no tender. 
 
 6. Acceptance of tender. 
 
 7. Specifying objections to acceptance, a waiver, etc. 
 
 8. Express waiver of production of the money. 
 
 9. Tender must be kept good. 
 
 10. Tender after suit brought. 
 
 11. Tender waived. 
 
 § 1. What Constitutes a Valid Teiifler. — As regards the plea 
 of tender filed in this case, the court instructs the jiu-y, that 
 to constitute good tender of any amount of money, it is neces- 
 sary for the ])arty indebted, absolutely and unconditionally, to 
 oifer to pay to the other party the amount tendered in current 
 money, such as is made a legal tender by law, and actually 
 offer the money at the time the tender is claimed to have been 
 made by producing the money and showing it to the person to 
 whom the money is due, unless such person waives the per- 
 formance of, or compliance with, some or all of these condi- 
 tions. 3 Greenlf. Ev., § 601, 602; I^ose vs. Duncan, 49 Ind., 
 269; Cot/iran vs. Scayilan. 34 Ga., 555; Hunter vs. Wai'iier^ 
 1 Wis., 141; Post vs. Springstead, 49 Mich., 90. 
 
 The court further instructs the jury, that to have a tender 
 of any avail, the amount tendered must be the precise sum, or 
 more than the amount due, and the tender must be kept good 
 by bringing the money tendered into court and depositing it 
 for the benefit of the plaintiff. Pars, on N. & B., 621; Henly 
 vs. Streator,b Ind., 207; PillshurywB. Willoughby,iSl Me., 274. 
 
 The jury are instructed, as a matter of law, that in order to 
 constitute a valid tender, the money must be offered to, and 
 
 (515)
 
 516 TENDER. 
 
 exhibited in view of, the person to whom the tender is to be 
 made, unless it appears, from a preponderance of the evidence, 
 that such person, by his conduct or words, prevented the 
 tender or excused the exliibition of the money in his sight. 
 DicHfiso?iY8. Iliajes, IN. W. Rep., 834; Gui/i?na?iYs. Kearn, 
 8 Neb., 502; Pinney vs. Jorgenseii^ 27 Minn., 26; Hoffman vs. 
 Van Dieman, 62 Wis., 362. 
 
 Although the jury may believe, from the evidence, that 
 before this suit was brought the defendant tendered to the 
 
 plaintiff the sum of % , still such tender cannot avail 
 
 him here, unless the jury further believe, from the evidence, 
 that the defendant lias kept that tender good by bringing the 
 money into this court for the use of the plaintiff. Aulgee vs. 
 Clay, 109 111., 487. 
 
 To constitute a good and sufficient tender, the debtor must 
 offer to pay and tender to the creditor the precise amount 
 which he intends to pay and allow the creditor to keep; he 
 cannot offer the creditor more than he admits is due or intends 
 to pay, and require the creditor to make change, and after 
 taking out the amount tendered to himself pay over the bal- 
 ance to the debtor. 
 
 § 2. Burden of Proof. — Upon the question of tender, the 
 court instructs the jury, that the burden of proof is upon the 
 defendant, and to entitle him to a verdict upon that issue, it 
 must appear, by a ]ireponderance of the evidence, that the 
 defendant, before the commencement, of the suit, uncondi- 
 tionally offered to pay to the plaintiff a certain definite sum in 
 legal tender money ; that the money was actually produced 
 and shown to the plaintiff"; that the amount so tendered was 
 offered in payment of the debts and demands sued on in this 
 case, or in such a way as to cover these demands, and that the 
 amount offered was equal to the amount due upon the claims 
 upon which the tender was made; and, further, that the 
 tender has been kept good by the payment of the amount so 
 tendered into court for the plaintiff; unless the jury find, from 
 the evidence and under the instructions of the court, that 
 some one or more of these requisites of a good tender have 
 been waived or dispensed with by the plaintiff, as explained in 
 these instructions. Pulsifer vs. Shepard, 36111., 513.
 
 TENDER. 517 
 
 § 3. Temlor as a Gift or Present. — Tliougli the jnry may be- 
 lieve, from tlie evidence, that upon the occasion referred to 
 by the witnesses, the defendant did produce, count out and 
 
 actually offer to the plaintiff the sum of $ , still, if the 
 
 jury further believe, from the evidence, that such offer was 
 accompanied by the statements, on the part of the defendant, 
 that he owed the plaintiff nothing, that he wonld make him a 
 present of that amount of money, etc. {(ifi>/ wjrds deiiijbig the 
 indebtedness^ hut offermg a bonus)^ then this would not con- 
 stitute a tender of any amount upon the demands involved in 
 this suit; and if the jury further find, from the evidence, that 
 no other tender has been made by the defendant, then, upon 
 the question of tender, the jury should find for the plaintiff, 
 even though the jury believe, from the evidence, that the de- 
 fendant has attempted to keep such alleged tender good by 
 paying the mone}' into court. 2 Greenlf. Ev., § 605 ; Sim- 
 tnons vs. Wilmott, 3 Esp., 94. 
 
 § 4. On Condition of Receipt in Full, etc. — Though the jury 
 may believe, from the evidence, that on the occasion referred 
 to by the witnesses, the defendant actually tendered to the 
 
 plaintiff the sum of % , in payment of the demand sued on 
 
 in this case, and that that sum w^as all or more than was then 
 due thereon, still, if tiie jury further believe, from the evidence, 
 that that tender or offer of payment was coupled wither made 
 only upon the condition that the plaintiff should give the 
 defendant a receipt in full of all demands, then this was a con- 
 dition which the defendant had no right to impose upon tlie 
 ]3laintiff upon such tender, and such a tender cannot avail the 
 defendant anj- thing in this suit. 2 Greenlf. Ev., § 605; Wood 
 vs. Hitchcock^ 20 Wend., 47; Sutton vs. Hawhins, S C. & P., 
 259; 2 Pars, on N. & B., 625. 
 
 § 5. Willingness to Pay, but no Tender. — That a mere ex- 
 pression of a willingness or a readiness to pay, or a proposition 
 to pay, whatever is due, without specifying any certain sum, 
 and without actually producing and offering some definite sum 
 of money, does not constitute a valid tender. To constitute a 
 good and sufficient tender, the person indebted must offer to 
 pay a definite, certain sum of money, and he must specify upon
 
 518 TENDER. 
 
 what demands ho proposes to pay it, whether npon any par- 
 ticular indebtedness, or in nayment of all that is due from him 
 to the party to whom the tender is made, unless the jury be- 
 lieve, from the evidence, that the actual production of the 
 money was dispensed with, or waived by the creditor. East- 
 man vs. Rapids^ 21 la., 570; Steele vs. Briggs, 22 111., 643. 
 
 Though the jury may believe, from the evidence, that some 
 time about, etc., the parties mot and had a conversation about 
 the matters in controversy in this suit, and that in that con- 
 versation, defendant told the plaintiff that he was ready to 
 pay him whatever was due, that he had the money in his pocket, 
 and if the plaintiff would name the sum he would pay him, 
 still, this would not amount to a valid tender. It should further 
 appear, from a preponderance of the evidence, that the de- 
 fendant offered to pay some certain, definite sum, and that he 
 then actually produced the money in view of the plaintiff, un- 
 less the plaintiff in some manner, by act or words, dispensed 
 with the production of the money. 
 
 § 6. Acceptance of Tender. — The court instructs the jury, as 
 a matter of law, that if a party tender to another a certain sum 
 of money, in full satisfaction and discharge of a disputed claim, 
 and the other party receive it on the terms proposed, it will 
 constitute a perpetual bar to any further recovery on the same 
 account. Jenks vs. Burr, 56 111., 451; Colter vs. O'Gonnell, 
 48 la., 552. 
 
 The jury are instiMicted, that the law is, that where money 
 is offered by one person to another, in satisfaction of a disputed 
 claim, and the offer be accompanied by such acts and declara- 
 tions as amount to a condition that if the money is accepted, 
 it must be accepted in full satisfaction of the claim, then the 
 party to whom it is offered, is bound to understand, that if he 
 takes the money, he takes it subject to the conditions upon 
 which it is offered; if he does not intend to take the money 
 on those conditions, he must not take it at all. Preston vs. 
 Grant, 34 Yt., 201. 
 
 And in this case, if the jury believe, from the evidence, that 
 before the commencement of this suit, in an interview between 
 plaintiff and defendant, the defendant offered and proposed to 
 pay the plaintiff $ , upon condition that he would ac-
 
 TENDER. 519 
 
 ccpt the samo in fall ))a3nn3nt of tlio dcnand snccl for in this 
 suit, and that he would pay the money upon no other condi- 
 tion, claiming that he owed the plaintiff no more tiian that 
 sum, and if the jury furtlnr believe, from the evidence, that 
 the plaintiff acce])ted, and took the money under that offer, 
 then he must be deemed to have taken the money in full pay- 
 ment and full satisfaction of such demands, no matter what 
 protests or objections to so receiving the money he may have 
 made at the time. 
 
 § 7. Specifying Objection to Acceptance, a Waiver, etc. — The 
 court instructs the jury, that the law is, that when one person 
 makes a tender to another, and the tender is not accepted, and 
 the person to whom the tender is made, places his refusal to 
 receive the tender upon certain specified objections, such, for 
 instance, as that the amount tendered was insufficient, he can- 
 not, after suit is brought, raise other objections which might 
 have been easily remedied at the time, if they had been made 
 then. Stohes vs. Recknagel^ 38 N. T. Sup. Ct,, 368; Whelan 
 vs. Reilley, 61 Mo., 565. 
 
 The jury are instructed, as a matter of law, that when one 
 undertakes to make a tender, and the other party refuses to 
 receive the amount proffered on the ground of its insufficiency, 
 and makes no other objection, this will be a waiver of any 
 informalities in the m.ode or manner of making the tender. 
 Whelan vs. Reilley^ 61 Mo., 565. 
 
 If the jury believe, from the evidence, that the plaintiffs 
 were the owners of the property in question, and that the de- 
 fendants had the same, claiming a lien thereon, for {^freight 
 etc), and that they refused to deliver up the goods unless the 
 plaintiffs would pay them an amount larger than the jury be- 
 lieve, from the evidence, they were entitled to demand, and 
 so told the plaintiffs or their agent, then no tender of any 
 amount was necessary; provided, the jury believe, from the 
 evidence, that the plaintiffs were ready and offered to pay the 
 amount that was actually due. 
 
 § 8. Express Waiver of Profluction of the Money. — If the jury 
 believe, from the evidence, that at some time before the com- 
 mencement of this suit, the plaintiff and defendant met and
 
 5 20 TENDER. 
 
 talked over tlie matter of the claims sued on in tliis case, and, 
 that upon that occasion, the defendant offered to pay to the 
 
 plaintiff § , or any other certain sum, in payment of the 
 
 demand in question in this suit, and, at the same time, put his 
 hand in his pocket for the purpose of taking out the money 
 so offered, and that the plaintiff" then said to him, that he need 
 not take out liis money, that he would not accept any such 
 sum, or words to that effect, then this would amount to a 
 waiver of the necessity, on the part of the defendant, of act- 
 ually producinc^, exhibiting and offering the money to the 
 plaintiff. Guthiaari vs. Kearn, 8 J^eb., 502. 
 
 § 9. Tender Kept Good. — If the jury believe, from the evi- 
 dence, that prior to the commjncemant of this suit, the de- 
 fendant tendered to the plaintiff, or to the person authorized 
 by him to collect the account sued on in tliis suit, the sum of 
 
 % , and that that was the full amount of what was then 
 
 due to the plaintiff", and that the defendant afterwards, at the 
 trial before the justice, paid that amount into the hands of the 
 justice, and left it with him to be paid to the plaintiff, or to 
 be brought into this court on appeal, if an ap]:eal should be 
 taken, and that the same was sent by the justice to this court 
 upon the appeal, and has since remained here, subject to the 
 order of the plaintiff, these facts constitute a good tender, 
 and upon that issue the jury should find for the defendant. 
 Aulger vs. Clay, 109 111., 487. 
 
 If the jury believe, from the evidence, that before tlie 
 commencement of this suit the defendant made a tender of 
 
 % in payment of the demand sued upon, and that he 
 
 has kept that tender good, as explained in the former instruc- 
 tions in this case, then, to entitle the plaintiff to recover, he 
 must show, by a preponderance of evidence, that at the time 
 
 of such tender there was more than % due to him; and 
 
 unless he has done so, the jury must find the issue of tender 
 in favor of the defendant. 
 
 § 10. Tender after Suit Brought. — If the jury believe, from 
 the evidence, that some time on, or about, etc., and since the 
 commencement of this suit, the defendant, by his attorney, 
 tendered to the plaintiff in payment of the demands now in
 
 TENDER. 521 
 
 question, tlio sum of $ for sncli debts and the costs 
 
 incurred in the suit up to that time; and further, that at that 
 
 time there was no more than the said sum of $ due to 
 
 the plaintiff incUiding such costs; and further, that the defend- 
 ant has kept that tender good by paying the said sum of 
 
 $ into this court for the use of the plaintiff, then, upon 
 
 the question of tender, the jury should find a verdict for the 
 defendant. Barnes vs. Greene, 30 la., 114. 
 
 § 11. Tender Waived. — When a person declares there is 
 nothing due him when an offer is made to pay him an alleged 
 claim, he thereby excuses any formal tender, and he cannot 
 afterwards object that the money was not counted out and 
 presented to him. Lacy vs. Wilson, '24 Mich., 479. 
 
 A tender regularly and lawfully made discharges a lien, and 
 while the debt is not discharged thereby, yet the security is 
 destroyed at once. JEslow vs. Mitchell, 26 Mich., 600.
 
 CHAPTER XLTII. 
 
 TEESPASS. 
 
 INJURIES TO THE PERSON". 
 
 Sec. 1. Assault defined. 
 
 2. Asf^ault and battery defined. 
 
 3. Plaintiff's first assault' — Plea of general issue only. 
 
 4. Aiding, abetting, etc. 
 
 6. Evil intent or negligence required. 
 
 6. Expelling trespasser. 
 
 7. Repelling force by force. 
 
 8. In defense of person. 
 
 9. Self-defense— Excessive force, 
 
 10. Drunkenness no justification. 
 
 11. Words no provocation — Mitigation of damages. 
 
 12. Words of provocation no justification. 
 
 13. Preponderance of evidence sufficient. 
 
 FALSE IMPRISONMENT. 
 
 14. What constitutes. 
 
 15. Trespassers are jointly and severally liable. 
 
 16. Who are liable as joint trespassers. 
 
 17. Who are not liable as joint trespassers. 
 
 ■ 18. Part of defendants only guilty — Form of verdici^ 
 
 19. Good faith in mitigation of damages. 
 
 20. Exemplary damages. 
 
 INJURIES TO PERSONAL PROPERTY — NO PLEA OF JUSTIFICATION. 
 
 Sec. 21. What constitutes a trespass. 
 
 22. What possession suflScient. 
 
 23. Possession by agent. 
 
 24. Possession against a wrongdoer. 
 
 25. Special property defined. 
 
 PLEA OF JUSTIFICATION. 
 
 26. Intent immaterial. 
 
 27. Acts, prima fade tresp.^ss. 
 
 28. Trespass, ab initio. 
 
 29. Justification by an officer- Writ of restitution. 
 
 30. Property taken on execution. 
 
 31. What constitutes a levy. 
 
 (522)
 
 TEESl'ASS. 523 
 
 Sec 33. Lfvy, -wTien invalicl. 
 
 33. Officer selling fjrrowinjgr crops. 
 
 34. Trespasser by ratification or adoption. 
 
 85. Landlord liable — Seizure under a distress warrant. 
 
 36. Landlord, when not liable. 
 
 37. Actual damajres only. 
 
 38. Exemplary damages. 
 
 TRESPASS TO REAL ESTATE. 
 
 39. Actual possession sufficient. 
 
 40. Trespasser by ratification. 
 
 41. Trespass by agent. 
 
 42. Entry under legal process. 
 
 43. Trespass, ab initio, 
 
 44. Entry obtained by fraud. 
 
 45. Joint trespassers. 
 
 46. Taking personal property, aggravation, etc. 
 
 TRESPASS BY ANIMALS. 
 
 47. Animals not permitted to run at large. 
 
 48. Owner of lands not bound to fence. 
 
 49. Animals lawfully running at large — Land protected by fence. 
 
 50. What is a sufficient fence — By statute. 
 
 51. Animals escaping through division fence. 
 
 52. Burden of proof. 
 
 ^3. Entry through plaintiff's portion of the fence. 
 
 INJURIES TO THE PERSON. 
 
 § 1. Assault Defined. — The court instructs the jnrv, thatevei'j 
 person has a ri^ht to complete and perfect immunity from 
 hostile assaults that threaten danger to liis person — a right to 
 live in society without being unnecessarily or wrongfully put 
 in fear of personal harm; and an assault is an attempt with un- 
 lawful force to inflict bodily injury upon another, acco)n]ianied 
 with the apparent present ability to give effect to the attempt 
 if not prevented. Cooley on Torts, 160; Harrison vs. ^7y, 
 120 m., 83. 
 
 Whoever attempts to strike, touch or do any violence to an- 
 other, however small, in a wanton, willful, angry or insulting 
 manner, having an intention and an apparent ])resent ability to 
 do some violence to such person, is guilty of an assault. 
 
 § 2. Assault and Battery Defined. — The jury are instructed, 
 that an assault and battery consists in an injury actually done
 
 524 TEESPASS. 
 
 to the person of another in an angry or revengeful, rnde or 
 insolent manner. Any unlawful beating of another, however 
 slight, is an assault and battery; and the degree of bodily 
 pain and injury, if the assault and battery are proved, is only 
 important as affecting the measure of damages. Cooley on 
 Torts, 162; Harrison vs. Ely, 120 111., 83. 
 
 If the jury believe, from the evidence, that the defendant 
 some time on, or about, etc., struck and kicked the plaintiff, as 
 alleged in plaintiff's declaration, without any sufficient provo- 
 cation therefor, as explained in these instructions, and that 
 the plaintiff was injured by such striking and kicking, and has 
 suffered any damage therefrom, then the jury should find the 
 issues for the plaintiff. 
 
 The court further instructs the jury, that if they believe, 
 from the evidence, that the defendant assaulted and beat the 
 plaintiff, as charged in the declaration, then they should find 
 a verdict fur the plaintiff, unless they further believe, from 
 the evidence, that such assaulting and beating, when done, 
 were reasonably and apparently necessary in defense, etc., and 
 that the force and violence used by the defendant were no 
 more than a reasonable man would have deemed reasonably 
 necessary in such defense. 
 
 § 3. Plaintiff's First Assault — Flea of General Issne Only. — The 
 
 jury are instructed, that under the pleadings in this case, even 
 if you find the plaintiff made the lirst assault, that fact can- 
 not be considered by the jury as a justification of the conduct 
 of the defendants, if you find, from the evidence, that they, or 
 either of them, also made an assault upon the plaintiff. In 
 such case, the plaintift''s first assault can only be considered in 
 mitigation of damages. 
 
 Under the pleadings in this case, the only question for the 
 jury to determine is, whether the defendants, or either of 
 ♦them, committed an assault and battery upon the person of 
 the plaintiff, as charged in the declaration ; and if you find, 
 from the evidence, that the defendants, or either of them, 
 committed the assault and battery complained of, it cannot be 
 claimed, as a justification for such assault by the defendant or 
 defendants, that the plaintiff made the first assault. 1 Chitty 
 on Plead., 501; 2 Greenl. Ev., § 95.
 
 TRESrA£S. 525 
 
 § 4. Aiding, Abetting, etc. — The coni't instniets llio jury, 
 tliat a jierson who encourages, advises, aids, or abets an unlaw- 
 ful assault and battery, is liable for all the damages directly 
 resulting therefrom. And in this case, if the jury believe, 
 from the evidence, that the defendant, A. B., unlawfully as- 
 saulted and injured the plaintiff, as alleged in the declaration, 
 then, if the jury further believe, from the evidence, that the 
 other defendants, or either of them, aided, abetted, advised, 
 or encouraged such assault, by tlie said A. B., the jury should 
 nut only lind the said A. B. guilty, but they should also find 
 such of the other defendants guilty as they believe, from tlie 
 evidence, aided, abetted, advised, or encouraged the commis- 
 sion of such assault. 
 
 If several persons commit an unlawful assault and battery 
 upon the person of another, then each person who participates 
 ^n such assault is guilty, and liable to the party injured for all 
 the damage he may sustain in consequence of such assault. 
 
 And if any one incites, advises, or encourages an unlawful 
 assault and battery, then he is also liable as princij^al, and to 
 the same extent as though he had actually particii)ated in 
 committing the assault, and inflicting the injury. Cooley on 
 Torts, 125, 133; Barden vs. Felch, 109 Mass., 154; 2 Hill, on 
 Torts, 293. 
 
 "When several persons unite in an act which constitutes a 
 wrong to another, intending at the time to commit the act, or 
 do it under circumstances which fairly show that they intended 
 the consequences which followed, then the law will compel 
 each to bear the responsibility of the misconduct of all, and 
 the party injured is at liberty to enforce his remedy against all, 
 or against any one or more of the number. Page vs. free- 
 man, 19 Mo., 421; Wright vs. Lathroj), 2 Ohic, 33; Turner 
 vs. EitcJicock, 20 la., 310. 
 
 § 5. Evil Intent or Negligence Required. — The court instructs 
 the jury, that the defendant ought not to be found guilty in 
 this action, unless the jury believe, from the evidence, that the 
 defendant, in inflicting the injury complained of, was guilty of 
 some wrong or evil intent, or want of care and prudence ; and 
 if the jury believe, from the evidence, that the defendant 
 struck the blow without any wrong or evil intent, or want of
 
 526 TEEsrAss. 
 
 reasonable care an 1 prudence, tliej should find tlic defendant 
 not guilty. 
 
 If the jury believe, from the evidence, that the defendant 
 struck tlie plaintiff, under an honest belief that the blow was 
 necessary in self-defense, and to prevent great bodily harm to 
 himself, and that the circumstances were such, at the time, as 
 to cause a reasonably prudent and courageous man to entertain 
 such belief, and to apprehend such harm, then the jury should 
 find the defendant not guilty. 2 Addison on Torts, § 790; 
 Cooley on Torts, 164; PaxtojiYQ. Boyer, 67 III, 132. 
 
 The jury are instructed, that in this case, the plaintiff can- 
 not recover, unless the jury find, from the evidence, that the 
 shooting was willful and intentional. 
 
 If the jury believe, from the evidence, that the defendant 
 did not assault the plaintiff, but that, having the pistol in his 
 hand for a lawful pur[iose, he, by the negligent or careless 
 handling of the pistol, or by accident, discharged the pistol, 
 and the plaintiff thereby received an injury, he cannot recover 
 damages for such injury in this action. Krai vs. Lull, 49 
 Wis. 403. 
 
 If the jury believe, from the evidence, that the defendant 
 had a pistol in his hands, but was not attempting to discharge 
 it towards the plaintiff, and that the plaintiff assaulted the 
 defendant, and by pushing and jostling him, caused the pistol 
 to go off and thereby received an injury, without any intention 
 on tlie part of the defendant that the pistol should be dis- 
 charged, then the defendant would not be liable in this action 
 for any injury consequent upon the discharge of the pistol. 
 Krai vs. Lull, 49 Wis., 403. 
 
 § 6. Expelling Trespasser. — The jury are instruc'^ed, that no 
 one has a right to go upon the premises of another, even though 
 it be his office, store, or place of business, after the owner has 
 forbidden him to do. so. 
 
 If a person enters upon the possession of another, and is 
 requested to depart and refuses to do so, the owner of the 
 premises may lawfully eject him therefrom; provided, he uses 
 no more force than is reasonably necessary for that purpose. 
 1 Hill, on Torts, 186; Woodman vs. Howell, 45 111., 367; 
 McCdrty vs. Fremont, 23 Cal., 196; LLarrison vs. LLarrison, 
 43 Vt, 417; Addison on Torts, 793.
 
 TEESPASS. 527 
 
 § 7. Ropelling Force by Force. — The court instructs the jury, 
 that if they believe, from the evidence, that the defendant 
 assaulted and beat the plaintiff in the reasonably necessary 
 defense of his own person, after havini^ been first assaulted by 
 the plaintiff, and that he used no more force than was ap|)ar- 
 ently necessary for such defense, then the jury should find the 
 issues for the defendant. 
 
 "While the law will not excuse or justify the use of more 
 force than is reasonably necessary in self-defense, and to pre- 
 vent receiving bodily harm, still, the law does make a reason- 
 able allowance for the infirmity of human judgment under the 
 influence of sudden passion or provocation, and it does not 
 require men to measure with mathematical exactness, the de- 
 gree of force necessai-y to re])el an assault. The jury must 
 judge from all the facts and circumstances, proved on the 
 trial, whether the defendant did assault the plaintiff, and 
 whether he did use more force and violence than was reason- 
 ably necessary under the circumstances. 
 
 If the jury believe, from the evidence, that the plaintiff 
 made the first assault upon the defendant, then the defendant 
 had a right to resist force by force, and to use so much force 
 as was reasonably necessary to defend himself; and in case 
 the jury find, from the evidence, that the plaintiff made the 
 first assault upon the defendant, then to warrant a verdict for 
 the plaintiff, the burden of proof is upon him to show that 
 the defendant did use more force than was reasonably neces- 
 sary under the circumstances to defend himself. Ayei's vs. 
 Bristol, 35 Mich., 501. 
 
 § 8. In Defense of Possession. — That a person in the actual, 
 peaceable and exclusive possession of property has a right to 
 guard such possession by using force, if necessary, for that 
 purpose. And in this case, if the jury find, from the evidence, 
 
 that at the time of the alleged assault, and for months 
 
 before that time, the defendant was in the actual, peaceable 
 and exclusive possession of the {house) where the disturbance 
 is alleged to have occurred, and that at the time in question 
 the plaintiff was attempting and endeavoring, by force, to 
 enter such {house) against the will and orders of the defend- 
 ant, then the defendant had a right to prevent such entry by
 
 528 TRESPASS. 
 
 using force, and to use so much force as was reasonably neces- 
 sary for that purpose. 
 
 § 9. Self-Defense — Excessive Force. — Though the jury should 
 believe, from the evidence, that the plaintiff made the first as- 
 sault upon the defendants or some one or more of them, still, 
 if they further believe, from the evidence, that the defendant, 
 when so attacked, repelled plaintiff's assault with more force 
 and violence, and did more injury to the plaintiff, than was 
 i-easonably necessary for their own protection from injury at 
 his hands, then, as a mitter of law, the defendants using such, 
 excessive force would be guilty of assault and battery, and you 
 should so find by your verdict. 2 Addison on Torts, § 792; 
 Adams vs. Waggoner^ 33 Ind., 531; Close vs. Coojper^ 34 Ohio 
 St., 98. 
 
 The court further instructs the jury, that although you may 
 believe, from the evidence, that the plaintiff met the defend- 
 ants in a threatening attitude, armed with a club, and threat- 
 ened that he was gong to use the club over their heads, still, 
 if you further believe, from the evidence, that the defendants 
 there and then disarmed the plaintiff, and put it out of his 
 power to do them any injury, then, as a matter of law, it was 
 the duty of the defendants to have desisted from any further 
 violence towards the plaintiff. And if you further believe, 
 from the evidence, that the defendants, or either of them, 
 used more force and violence towards the plaintiff than was 
 reasonably necessary in so disarming the plaintiff, or if you 
 believe, from the evidence, that after they had disarmed him, 
 the defendants, or either of them, committed any further 
 assault and battery upon the plaintiff than was necessary for 
 their own protection, then such defendants would in law 
 become the aggressors, and you should find such defendant, or 
 defendants, guilty. 
 
 While the law makes reasonable allowance for the infirm- 
 ities of human judgment under the influence of sudden pas- 
 sion, and does not require men to measure with matiiematical 
 exactness the degree of foice necessary to repel an assault, 
 still, it does require all men, even under the influence of 
 sudden jiassion, to exercise reasonable discretion and forbear- 
 ance in the infliction of injuries upon the person of another.
 
 TRESPASS. 529 
 
 And, in this case, thongli tlie Jury may believe, from the evi- 
 dence, tliat the plaintiflf first made an attack nj^on t' e defend- 
 ants, or some one of tlicm, still, if you further believe, from 
 the evidence, that in re])enin2^ snch attack, the defendant, or 
 either of them, used a degree of force and violence towards 
 the ]ilaintilf greater than was apparently and reasonably 
 necessary to repel snch attnck, and thereby cansed unneces- 
 sary injury to the jilaintifT, then it is your sworn duty, as 
 jurors, to find a verdict of guilty against such one, or more, 
 of the defendants as you find, from the evidence, took part in 
 using such excess of force and violence. 
 
 Although the jury may believe, from the evidence, that 
 the plaintiff caught hold of the defendant, and was about to 
 strike or injure him with a {hatGhef), still, if the jury further 
 believe, from the evidence, that the defendant used more 
 force and violence than was apparently and reasonably neces- 
 sary to prevent injury to himself, then such excess of force 
 would be unlawful, and the defendant, as to such excess, would 
 be guilty of an unlawful assault upon the plaintiff. 
 
 § 10. Drunkenness no Justification. — Although the Jury may 
 believe, from the evidence, that the defendant was drunk at 
 the time he assaulted, and kicked, and struck, the plaintiff, if 
 such assaulting, kicking and striking have been proved, still, 
 the fact of drunkenness alone would be no excuse or justifica- 
 tion for such assault, 
 
 § 11. Words of Provocation — Mitigation of Damages. — That, 
 while words of provocation do not justify an assault and bat- 
 tery, they may properly be considered in mitigation of dam- 
 ages; and if the jury believe, from the evidence, that, just 
 before the assault com])lained of, the plaintiff used words to 
 the defendant calculated to provoke a breach of the ];eace, 
 and menaced the defendant with his fists, then such facts and 
 circumstances may be considered by the jury in mitigation of 
 damages, in case they find the defendant guilty. 1 Hill, on 
 Torts, 185; Keyes v. Devlin, 3d E. D. Smith, 518; Ireland 
 vs. Elliott, 5 Clarke (la.), 478; Suggs vs. Anderson, 12 Ga., 
 461; Brown vs. Swineford, 44 Wis., 282; Burke vs. Melvin, 
 45 Conn., 243. 
 34
 
 530 TRESPASS. 
 
 § 12. AVords of Provocation no Justification. — If tliG jury 
 believe, from the evidence, that the defendant committed the 
 assault and battery complained of, in anger, caused by words 
 spoken by tlie plaintiff, then the jury are instructed, as a mat. 
 ter of law, that words alone do not excuse or justify an assault 
 and battery ; they can only go in mitigation of damages. 
 
 If the jury believe, from the evidence, that the plaintiff, 
 immediately before the assault complained of, used violent 
 and abusive language to and concerning the defendant, and 
 menaced and threatened him with personal injury, then these 
 facts are proper to be taken into account, with all the other 
 evidence in the case, in assessing the plaintiff's damages, if 
 they find the defendant guilty. 
 
 § 13. Preponderance of Evidence SuflBcient. — That in this ac- 
 tion, the plaintiff is only reqnired to make out his case, by 
 a preponderance of evidence, to entitle him to recover; and 
 any of the evidence in the case, either circumstantial or 
 positive and direct, which tends to produce belief in the mind 
 of the jury, is proper to be considered by them, in determining 
 whether or not the defendant is guilty. Miller vs. Balthasser^ 
 78 111., 302. 
 
 FALSE IMPRISONMENT. 
 
 § 14-. "WHiat Constitutes. — The court instructs the jury, that 
 in order to sustain a charge for false imprisonment, it is not 
 necessary for the plaintiff to show that the defendant used 
 violence or laid hands on him, or shut him up in a jail or 
 prison ; but it is sufficient to show that the defendant, at any 
 time or place', in any manner, restrained the plaintiff of liis 
 liberty, or detained him in any manner from going where he 
 wished, or prevented him from doing wliat he wished; pro- 
 vided, this is done without legal authority, as explained in 
 these instructions. Cooley on Torts, 169; Brusliaher vs. 
 Stagemann, 22 Mich., 266 ; 2 Addison on Torts, 697; Hawk 
 vs. Ridgway, 33 111., 473; Bonesteel vs. Bonesteel, 28 Wis., 
 245; Ilarkins vs. State^ 6 Tex. App., 452; Murphy \^. Martin, 
 58 Wis., 276; Gelzenleuchter \b. Neimeyer, 64 Wis., 316. 
 
 If the jury believe, from the evidence, that the defendant
 
 TRESPASS. 531 
 
 met the plaintiff at S., and took the plaintiff into his custody, 
 and there kept liini, and brought him to M. against his will, 
 and offered to deliver him into the custody of the sheriff", 
 then the defendant is guilty as charged in tlie declaration, and 
 the jury should iind for the plaintiff; un'ess the jury further 
 lind, from the evidence, under the instructions of the court, 
 that the defendant was warranted in law in making such arrest, 
 as explained in these instructions. Ilawk vs. liidgway, 33 111., 
 473. 
 
 To constitute an arrest and imprisonment, it is not necessary 
 that the party making the arrest should actually use violence 
 or force towards the party arrested, or that he should even 
 touch his body. If he profess to have authority to make the 
 arrest, and lie commands the person, by virtue of such pre- 
 tended authority, to go with him, and the person obey the 
 order, and they walk together in the direction pointed out by 
 the person claiming the right to make the arrest, this is an 
 arrest and imprisonment witliin tlie meaning of the law. 2 
 Addison on Torts, § T99; Cooley on Torts, 169. 
 
 In order to constitute an arrest, an actual laying on of the 
 hands, or personal violence, is not necessary; it is simply nec- 
 essary that the arrested party be within the control of the 
 officer or other person making the arrest, and submits him- 
 self to such control, in consequence of some claim of right to 
 make the arrest, or threat to make it, by such officer or other 
 person. 
 
 Any deprivation of the liberty of another, without his con- 
 sent, whether it be by actual violence, threats, or otherwise, 
 constitutes an imprisonment within the meaning of the law. 
 
 § 15. Trespassers are Jointly and Severally Liable. — The court 
 instructs the jury, that in an action of trespass, if the jury be- 
 lieve, from the evidence, that a trespass lias been committed, 
 as alleged in the declaration, and that there was more than 
 one wrong-doer engaged in the trespass, then such wrong- 
 doers are jointly and severally liable, and the plaintiff" is 
 under no obligations to sue all who are engaged in the tres- 
 pass — he may, at his election, proceed against any one ox more 
 of such wrong-doers. Ously vs. Hardin^ 23 111., 403.
 
 533 TKESPASS. 
 
 § 16. Who Lia'ole .is Joint Trespassers. — The court instructs 
 the jury, that the law is, tliat all ijarties who engage in making 
 an illegal or unlawful arrest, are trespassers; and if tlie jury 
 believe, from the evidence, tliat the defendants, or either of 
 them, restrained the plaintiif of liis libeity, as charged in plaint- 
 iff's declaration, and without authority of law, as explained in 
 these instructions, then such persons are liable to the plaintiif 
 in this action. Callaghan vs. Mijers^ 89 III., 506. 
 
 If the jiir3^ believe, from the evidence, that the defendants, 
 or either of tliem, arrested the plaintiff, as charged in the 
 declaration, without lawful authority for making such arrest, 
 as explained in these instructions, then 3^our verdict sliould be 
 for the plaintiff, and against such of the defendants as are 
 shown, by the evidence, to have participated in making tlie 
 arrest. 
 
 If the jury believe, from the evidence, that A. B., one of 
 the defendants, and he alone, assumed the immediate control 
 and detention of the plaintiff at the time in question, still, if 
 you further believe, from the evidence, that the other defend- 
 ants, or any of them, were then present, acting in concert with 
 the said defendant A. B., and were wrongfulh' inciting him 
 to arrest or imprison the plaintiff, then such other defendant 
 or defendants will be equally liable with the said A. B.; pro- 
 vided you find him guilty, under the evidence and instruc- 
 tions of the court. Whitney vs. Turner^ 1 Scam. (III.), 253. 
 
 If the jury believe, from the evidence, that the plaintiff 
 had not connnitted any offense alleged in the defendants' 
 pleas, and that both of the defendants concurred in laying 
 hands on him and arresting him, then the jury are instructed 
 that they should find both the defendants guilty, and assess 
 the plaintiff's damages. 
 
 If the jury believe, from the evidence and under the in- 
 structions herewith giveUj that the defendants M. and M. were 
 both engaged in the common purpose of unlawfully arresting 
 the plaintiff, and that M. had laid hold of the plaintiff, and 
 that M. imnudiately afterwards, in pursuance of said common 
 purpose of unlawfully arresting said plaintiff, struck said 
 plaintiff with a club, and that said striking wms done in the 
 presence of M., and that M. did not try to prevent the same, 
 but on the contrary thereof, adopted and approved said act of
 
 TRESPASS. 533 
 
 said M. in striking said plaintiff, then the jurj are instructed 
 that said M. is as responsible in tliis action for said striking as 
 is M. Mullin vs. S^pangenber'g^ 112 111., 112. 
 
 § 17. AVhen not Liable as Joint Trespasser. — Although the 
 jury may believe, from the evidence, that the defendant C. 
 proved up his claim before the justice of the peace, as testi- 
 fied to by the plaintiff, still, unless you further believe, from 
 the evidence, that the said C. aided, advised or assisted in the 
 arrest of the plaintiff, then you should find the said C. not 
 guilty, unless you further find, from the evidence, that since 
 the arrest he has approved or adopted the acts of those who 
 did cause it. Cooley on Torts, 129; Avrill vs. Willia77is, 4 
 Denio, 295; Abbott vs. Kimball^ 19 Vt, 551; SnydacJcer vs. 
 Brisse, 51 111., 357. 
 
 If a person makes an application, in good faith, to a justice 
 of the peace, for legal process, for a supposed just claim, and 
 then attempts to prove it up before the justice, and does no 
 more, this alone will not render him liable for the errors or 
 mistakes, or even for the malicious acts, of such justice. 
 
 To warrant a verdict of guilty against the defendants, L. 
 and E.., the jury must believe, from the evidence, that they 
 aided, abetted, encouraged or assisted in making the arrest, 
 before or at the time the same was made, or else that it was 
 done in their behalf and for their benefit, and that they have 
 ratified and approved of the arrest since it was made; and if 
 neither of these things appear to be jiroved by a jiroponder- 
 ance of the evidence, then the said defendants, L. and K., 
 should be acquitted. 
 
 § 18. Part of Defendants Only Gtiilty — Form of Ver^Ioc. — If 
 
 the jury believe, from the evidence, i:.nder the instructions of 
 the court, that some of the defondantr, are guilty of the tres- 
 passes alleged in the declaration, and some not guilty, then 
 the jury should find, in their verdict, in favor of the plaintiff 
 and against those of the dele^dants who are so proven to be 
 guilty, and as to the other d'^fendants, that they are not guilty, 
 and, in either case, mention /ag the defendants by name. 
 
 § 19. Good Faith in Miti;5ation of Damages. — If, from the evi- 
 dence, under the instructions of the court, the jury find the
 
 534 TEESPASS. 
 
 defendants, or any one of tliem, ^^uilty, as cliarg^cd in the dec- 
 laration, still, if you furtlier find, from the evidence, that in 
 making the arrest complained of, snch parties, in good faith 
 and without malice, were only pursuing what they supposed 
 were tlieir just rights, by legal remedies, then this fact may 
 be considered by the jury in fixing the amount of damages, 
 and as tending to show that only actual damages should be 
 given. 
 
 § 20. Exemplary Damages. — If the jury find the defendants, 
 or any of them, guilty of the arrest charged in the decla- 
 ration, and if you further find, from the evidence, that such 
 arrest was maliciously and wantonly made, then, in assessing 
 the plaintiff's damages, the jury may give what, in law, are 
 called exemplary or vindictive damages; that is, such damages 
 as will not only give the plaintiff compensation for the dam- 
 ages actually suffered by him, but will also afford a whole- 
 some example to others in like cases. 
 
 The court instructs the jury, that if they believe, from the 
 evidence, that said defendants, or any one of them, at the time 
 in question, injured the plaintiff, and put indignities upon her 
 person, from vindictiveness, or a wanton or reckless disregard 
 of her age or her infirmities, they may assess exemplary dam- 
 ages against the defendants, or such of them as the evidence 
 shows are guilt}^, as charged in the declaration. 
 
 Exemplary or vindictive damages should not be given in a 
 case of this kind, unless the jury find, from the evidence, not 
 only that the defendants are guilty, but also that they acted 
 maliciously or wantonly, and with wrongful intent, nor unless 
 all the defendants against whom a verdict is rendered, were 
 actuated by such malice, wantonness or evil intent. 
 
 INJURIES TO PERSONAL PROPERTY NO PLEA OF JUSTIFICATION. 
 
 § 21. What Constitutes Trespass, etc. — The court instructs 
 the jury, that the gist of this action is the unlawful (taking 
 and carrying away of the personal property of the plaintiff', 
 from his possession, by the defendant); and if the jury believe, 
 from the evidence, that at tlie time of the alleged trespass, 
 the plaintiff was the owner of the property in question, and
 
 TRESPASS. 535 
 
 had it in his possession, and that tlie defendant, without the 
 consent of the plaintiff and ao-uinst liis will, took the property 
 from the possession of the jilaintiff and converted the same to 
 his own use, then the jury sliould find the issues for the 
 plaiutilf. 
 
 § 22. What Possession SnflRcient. — The court instructs the 
 jury, tliat a trespass to personal property consists in the unlaw- 
 ful disturbance, by force, of another's possession of such 
 i>roperty, and in order to sustain the action it is only necessaiy 
 that the plaintiff show that, at the time of the alleged trespass, 
 he was the general owner of the property, and then in the act- 
 ual possession of it, either by himself, his agent or servant, 
 and, further, that the defendant unlawfully interfered witli the 
 property, either by injuring it, or by taking it and carrying it 
 away without lawful right, and against the will of such owner. 
 Scott vs. Bryson, 74 111., 420; Cooley on Torts, 436; Addison 
 on Torts, § 442; 1 Hill, on Torts, 501; Miller vs. Clay, 57 
 Ala., 3 62. 
 
 In order to maintain an action for trespass to personal prop- 
 erty, it is suiScient if the evidence shows that the plaintiff had 
 what is called a special property therein, together with the 
 actual possession of the property, and a right to such posses- 
 sion; and that the defendant unlawfully, and without right, 
 interfered with or disturbed such possession, either by injur- 
 ing the propert}'' or by taking it and carrying it away, against 
 the will of the person so in possession. Miller vs. Kirhy, 74 
 III, 242; Cooley on Torts, 436; Addison on Torts, § 442; 1 
 Hill, on Torts, 501. 
 
 § 23. Possession by Agent. — If the juiy believe, from the 
 evidence, that at the time of the alleged trespass the plaintiff 
 was th^ owner of the {property) in question, and was in ]ios- 
 session of it, by himself, his agent or servants, and that the 
 defendant took and carried away said property, and converted 
 it to his own use, as alleged in the declaration, then the jury 
 should find the defendant guilty. 
 
 If the jury believe, from the evidence, that at the time of 
 the alleged trespass the plaintiff was the owner of the {animal) 
 in controversy, and that the same was in the actual j jssession
 
 536 TKESPASS. 
 
 of liis (Iroi/ier), as his agent or servant, then the possession of 
 the {Jjrother) was the possession of tlie plaintiff; and if the 
 jury further believe, from the evidence, that while the prop- 
 erty was so in the ])os!«ession of the plaintifl", the defendant 
 io()\i and carried it away, as charged in the declaration, the 
 jury should hnd the defendant guilty. 
 
 § 2-t. Po.^session as against a AVrong-Doer. — That a person 
 who is in the actual, peaceable and exclusive possession of j-er- 
 sonal property, without showing any other right, has a sufK- 
 cient title in the property to maintain trespass against one 
 who, with force, intermeddles witli such possession without 
 showing any right or title to the property, or to the posses- 
 sion thereof. Cooley on Torts, 430; Addison on Torts, 
 § 442; Scott vs. Brysoii, 74 111., 420; Miller vs. Kirlij, T4 
 III, 242. 
 
 § 25. Special Property Defined. — The court instructs the 
 jury, as regards the term "special projjerty," that a ])ersou 
 who is not the general owner of personal property, but has it 
 in his ]DOssession, with the right to such possession for tlie 
 time being, even as against the general owner, is deemed in 
 law to have a special property in the property so in his pos- 
 session, and such a person may maintain trespass against any 
 one who unlawfully, with force, interferes or meddles with 
 such possession. 
 
 PLEA OF JTSTinCATIOlSr. 
 
 § 26. Intent Immaterial. — To render a person guilty of tres- 
 pass to personal property it is not essential that he should intend 
 to do a wrongful act. It is enough if he willfully or negli- 
 gently and unlawfully, by force, interfere with personal prop- 
 erty in the actual, peaceable and exclusive possession of an- 
 other, without the consent and against the will of the latter. 
 
 § 27. Acts, Prima Facie Trespass. — The law is, that when 
 the rights of private property are invaded by one whose acts 
 would constitute a tres])ass, unless he is ])rotected by legal au- 
 thority, then it is incumbent upon such person to show, by a
 
 TRESPASS, 537 
 
 pre^tonderancc of evidence, tliat lie was justified, by legal au- 
 thority, to do the acts complained of; and if he is unable to do 
 this, he must be regarded as a trespasser. It is not enough 
 that such a person intended to perform an official duty, but 
 autluirity of law for the act complained of must exist, or he 
 will be a trespasser. Linhlom vs. Ramsey, 75 111., 240, 
 
 It is the duty of every one who assumes to interfere with 
 the ])roperty of another, to ascertain that he has right and 
 autliority so to do, and he cannot excuse himself to any one 
 who has been injured by his unlawful conduct, by merely 
 showing tliat he was acting in good faith and without any in- 
 tention to do wrong. And if the jury believe, from the evi- 
 dence, that the defendants, or any of them, took away from 
 the plaintiff's house any of his personal piroijerty forcibly and 
 ■ against his will, and without an}'- right or authority, as ex- 
 plained in these instructions, then the jury should find for the 
 plaintiff", as against such defendants, and assess his damages, if 
 any, at the amount of his actual injury or damage, as shown 
 by the evidence, although such defendants may have supposed 
 they were right in what they did, and were not actuated by 
 any malicious or wrongful motive. 
 
 § 28, Trespass, Ab Initio. — If the jury believe, from the 
 evidence, that before, and at the time of the alleged trespass, 
 the plaintiff was the owner of, and in the actual, peaceable 
 possession of the {horse) in question, and that the defendant 
 F., against the will of the said plaintiff, took the {Jiorse) from 
 his possession, and (within a day or two thereafter), drove and 
 used the said {Jwrse), for his own pleasure and profit, and 
 while using the {horse), willfully and wantonly, or without 
 reasonable care and caution, drove the said {horse) at an un- 
 reasonable rate of speed, and overheated and theieby injured 
 the said {horse), then the jury should find the defendant guilty 
 of trespass in the original taking of the piroperty ; although 
 the jury may further believe, from the evidence, that the de- 
 fendant was at the time a constable, having in his hands to 
 serve the execution introduced in evidence, and that he took 
 said {hoi'se) by virtue of said execution. 
 
 § 29. Justification by an Officer— Writ of Eestitntion.— The 
 
 court instructs the jury, as a matter of law, that the papers in
 
 538 TRESPASS. ' 
 
 tlie case of {31. B. vs. J. W.), in the justice's court, and intro- 
 duced in evidence in this case, authorized the constable, who 
 served the writ of restitution in that case, to use so much force 
 as was necessary to remove the jilaintiff in this suit, his family 
 and property, from the premises described in that writ. And 
 if the jury should find, from the evidence, that the premises 
 described in that writ, are the same as those described in the 
 declaration in tliis case, and that the trespasses complained of 
 are the acts done in execution of said writ, and tliat the con- 
 stable W., in executing the wu'it, used no more force than was 
 necessary in removing the plaintiff and his family and goods 
 from the premises described in the writ, they should find the 
 defendants not guilty. 
 
 The court instructs the jury, that the papers in the case of 
 (J/. B. vs. J. W.) in the justice's court, and introduced in 
 evidence in this case, authorized the constable, who served 
 tlie writ of restitution in that case, to use so much and no 
 more force than ^?as necessary to remove the plaintiff in this 
 suit, his family and property from the ]">remises, described in 
 that writ. If the jury should find, from the evidence, that 
 the premises, described in that wi-it, are the same as those 
 described in the declaration in this case, and that the con- 
 stable W., in executing the writ, used more force than was 
 necessary, in removing the plaintiff and his family and goods, 
 and tliereby unnecessarily injured the plaintiff or his property, 
 the defendant B. would not be guilty of such excess of force 
 or injury, unless it appears, from the evidence, that he ordered, 
 advised or assisted in such excess of force and injury, or after- 
 wards approved of the same. 
 
 § 30. Property Taken on Execution. -If the jury believe, 
 from the evidence, that before the execution, introduced in 
 evidence in this case, came into the hands of the said defend- 
 ant F., the plaintiff had bought the property in question, in 
 good faith, for a valuable consideration, of the defendant in 
 the execution, and had taken the same into his possession, 
 then, if the jury further believe, from the evidence, that the 
 said defendant F., acting as constable, seized and took said 
 property from the possession of the plaintiff, upon said execu- 
 tion, he would be guilty of trespass in taking said property,
 
 TRESPASS. 639 
 
 and if eitlier of the other defendants are shown, bj the evi- 
 dence, to have advifeed, directed, or aided the said F. in 
 taking the said propert}', then the jury shonld find such 
 other defendants also guilty of said trespass, equally with the 
 said F. 
 
 § 31. What Constitutes a Levy. — The court instructs the 
 jury, that to constitute a valid levy upon personal property, it 
 must be within the power and control of the officer when the 
 levy is made; and lie must take it into his possession within 
 a reasonable time thereafter; and when the character of the 
 property will admit of it, in such an open, public and unequiv- 
 ocal manner as to apprise the public that it has been taken 
 on execution. He must so deal with the property, in order to 
 constitute a good levy, as that, without the protection of the 
 execution, his acts would make him a trespasser. 
 
 To render a levy on personal property complete, the officer 
 must do some act, which, if he was not protected by his writ, 
 would amount to a trespass; if a delivery bond is not given, 
 he must, to affect third persons, take the property into his 
 possession as soon as it can conveniently be done. 
 
 It is not a sufficient levy of an execution on personal prop- 
 erty, as against third persons, for an officer to indorse a levy, 
 with an inventory of the property, on the execution, in the 
 presence of the judgment debtor, while the projerty is before 
 them; the officer must also take the property into his posses- 
 sion. Ilavely vs. Lowry^ 30 111., 446. 
 
 § 32. Levy Invalid, When. — The court further instructs the 
 jury, that if property seized, under an execution, is permitted 
 to remain with the defendant for an unreasonable time after 
 the levy, with the consent of the creditor, the levy will be 
 deemed fraudulent and void as against a subsequent execution. 
 Davidson vs. Waldron^ 31 III., 120. 
 
 The law will not sustain a levy which is only colorable, and 
 designed to shield the property from the claims of other par- 
 ties — and, in this case, though the jury may believe that the 
 execution in question was levied on the property in contro- 
 versy at the time indorsed on the execution, still, if the jury 
 further Lelieve, from the evidence, that such levy was not
 
 540 TRESPASS. 
 
 made in good faitli, aud witli a lonajide intention of satisfj^- 
 ing the said execution out of said jirupertj, but that, with the 
 knowledge and consent of the j^laiutili's in the execution, the 
 said levy was made for the puri^ose of covering up said jirop- 
 ertj, and keeping it for the benetit of the said {defendant in 
 executioii)^ then such levy was absolutely void, as against the 
 
 other creditors of the said , and the jurj- should so find, in 
 
 determining the rights of the parties in this suit. Murphy 
 vs. ISwadener^ 33 Ohio St., 85. 
 
 § 33. Officer Selling Growing Crops. — If the jury believe, 
 from the evidence, under the instructions of the court, that 
 the defendant F. was guilty of trespass, in manner and form 
 as alleged in the declaration, in levying upon and selling the 
 property in question, and that the defendant B. bought the 
 property at such sale, and took it and carried it away, claim- 
 ing it under such sale, then B. would also be guilty of trespass 
 jointly with said F., although such taking and carrying away 
 was done at a subsequent time. 
 
 If the jury believe, from the evidence and under the instruc- 
 tions of the court, that the defendants, or either of them, 
 levied upon aud sold the property in question, and, in so 
 doing, were guilty of trespass, as charged in plaintiff's declara- 
 tion, and that the defendant B., after the sale, entered on the 
 premises described in the plaintiff's declaration, and carried 
 away corn, wheat and oats, grown thereon, claiming the same 
 under such sale, then the jury should find the said defendant 
 B. equally guilty with the other defendants who are shown, 
 by the evidence, to have conducted, managed, aided or advised 
 said sale. 
 
 § 34. Trespasser by Ratification or Adoption, — The court in- 
 Btructs the jury, as a matter of law, that if an act of trespass 
 is committed in the name of another person, or professedly in 
 the interest of such other person, and the latter subsequently 
 ratities the act by claiming any benefit under it, he would be 
 bound by the act to the same extent as if lie had expressly 
 authorized it before it was done. Smith vs. Zcso, 42 Mich., 6. 
 
 If the jury believe, from the evidence, under the instruction 
 of the court, that the defendant A. B. (the ofhcer), is guilty of
 
 TRESPASS. 541 
 
 a wrongful talcing of the ])i-opei'ty of tlio plaintiff nndor the 
 execnticm intruchiced in evidence, and tliat after the j^roj^erty 
 had been so taken tiie plaintiif went to the defendant C. B. 
 (plaintiff in execution), and recpiested him to con-ent to a 
 release of the jn-operty by the officer, and that he refused to 
 so consent, then the jury may find the said defendants both 
 guilty, although the defendant C. D. was not ])resent at tl e 
 time of the taking, and did not direct the officer to levy on 
 the particular property in question. Cook vs. Jlojjpei-, 23 
 Mich., 511. 
 
 § 35. Landlord Lialde — Seizure under Distress Warrant. — The 
 
 coni-t instructs the jury, that if an officer, in executing a disn 
 tress wan-ant, seizes the property of a stranger, and the land- 
 lord ratifies the act, and retains the property, after knowledge 
 of the facts, he will thereby render himself liable for the 
 tresjniss committed by the officer. Becker vs. Du Pree, 75 
 111., 1G7. 
 
 It is a rule of law, that where one person does an act pro- 
 fessedly for the benefit of another, and as acting for him, bnt 
 without any previous authority whatever, from such other 
 person, to do the act, if, after the act is ]^erformed, the person 
 for whose benefit it was done, with full knowledge of all the 
 facts, adopts and ratifies the act, by availing himself of the 
 benefits accruing to himself therefrom, he will be liable to all 
 the consequences to the same extent as thongh he had fully 
 authorized the act before it was done. 
 
 § 36. When Landlord not Liable.— The court instructs the 
 jury, that the delivery of a distress w^arrant to an officer, with 
 direction to execute it, will not alone render the landlord lia- 
 ble for the unautJiorized and unlawful acts of the officer and 
 his assistants; and, in the absence of proof to the contrary, it 
 will not be presumed that the landlord directed the officer to 
 seize the property of any person other than the tenant named 
 in the warrant. 
 
 Tlie jury are further instructed, that if an officer executing 
 a distress warrant seizes the property of a stranger, without 
 the knowledge or consent of the landlord, the landlord will 
 not be liable as a trespasser for the acts so done, unless he, in
 
 543 TEESl'ASS. 
 
 soino inaTinD!', with knowledge of tlio facts, approve and ratify 
 the uet after it is done. 
 
 § 37. Actual Damages O ilr. — Tf the jury believe, from the 
 evidence, that the defendants, or either of them, while exe- 
 cuting a writ (of replevin) against J. D., took and carried 
 away the property of the plaintiff, as alleged in liis declara- 
 tion, and tliat such defenJants, at the time tlie property was 
 taken, believed the same to be the property of the said J. 
 D., and described in tlie writ of rei)levin, and that the same 
 was not taken in a reckless, w^anton, oppressive or malicious 
 manner, and that all of the pro])erty so taken was afterwards 
 returned to the plaintiff, then the plaintiff is entitled to re- 
 cover in this s;iit no more damage than the jury believe, from 
 the evidence, he actually sustained. 
 
 § 33. Exemplary Daraa^^es. — If, from the evidence, under 
 the instructions of the court, the jury tind the defendant guilty, 
 as charged in the declaration, tlien, if tlie jury further find, 
 from the evidence, that the taking of the pi-operty was done 
 under such circumstances, or in sucli a manner, as evinced a 
 disposition on the part of tlie defendant to maliciously and 
 wantonly possess himself of such property, regardless of the 
 plaintiff's right thereto, then the jury are not confined in their 
 estimate of damages to the actual value of the property taken, 
 but they may assess, in addition thereto, such punitive or ex- 
 emplary damages, by way of punishment to the defendant, as 
 to the jury shall seem just and proper, in view of all the evi- 
 dence in the case. 
 
 TRESPASS TO REAL ESTATE. 
 
 § 39. Actual Possession Sufficient, etc. — The court instructs 
 the jury, that a person in the actual and peaceable possession 
 of land, will be ]n-esumed to be the owner, in the absence of 
 any proof of title, and he may maintain trespass against any 
 one who wrongfully invades his possession, 
 
 Altliough possession of land maj^ have been acquired wrong- 
 fully by the plaintiff, this will not justify even the owner of 
 the property in entering and taking possession forcibly, against
 
 TRESPASS. 543 
 
 til 3 will of tliG person in possession. Cooloy on Torts, 320; 
 111., etc., vs. CM, 82 111., 183; AuslhivQ. Bailee/, 31 Yt, 219; 
 m. & St. L. Ed. Co. vs. Colh, 68 111., 53; Vcm Aulen vs. 
 Munroe, 38 Mich., 725. 
 
 In order to maintain an action for trespass, it is only neces- 
 sary for the plaintiff to prove that lie was in the actual and 
 l)eaceab^e possession of the property upon which the trespass 
 is alleged to have been committed, and that the defendants, or 
 some one or more of them, unlawfully interfered with such pos- 
 session. 
 
 A person in the actual, peaceaWe po'^scssion of premises, is 
 presumed to be there rightfully, and no one, not even the 
 owner of the property, has a right to go u])on the premises 
 and forcibly eject the person so in possession, or remove his 
 property therefrom against his will, nnless the person so 
 entering lias some legal process from a court of competent 
 jurisdiction, authorizing him so to do. 
 
 § 40. Trespasser by Ratification.— The conrt instructs the 
 jury, as a matter of law, that if they believe, from the evi- 
 dence, that before and at the time of the alleged trespass, the 
 plaintiff was in the actual, peaceable possession of the prem- 
 ises in question, and that at the time alleged some person pro- 
 fessing to act for and in the interest of the defendant, W., in 
 the absence of the plaintiff, and against his will, broke into 
 the said rooms and removed the plaintiff's effects therefrom, 
 without legal authority so to do, as explained in these instruc- 
 tions, and, further, that immediately after all this had been 
 done, the defendant, W., knowing the facts, went in, and by 
 himself, or his agent, took possession of the premises, and 
 retained such possession, this would, in law, be a ratification 
 by the defendant, W., of the acts of such other parties, and 
 he would be liable therefor to the same extent as though he 
 had participated in the acts of such other parties. 
 
 § 41. Trespass by an Agent. — The jury are instructed, that 
 the law is, that what one does by an agent is the same as if 
 done by himself; and if the jury believe, from the evidence, 
 that the defendant, W., shortly before the alleged trespass, 
 employed A. B. as his agent or attorney to evict the plaintiff
 
 54:4: TRESPASS. 
 
 from tlie premises mentione 1 in the declaration, and that in 
 pursuance of that em])]ojnient, and in the way of his said 
 agency, the said A. B. took any steps towards getting the pos- 
 session of said property away from the plaintiff, then the de- 
 fendant, W., would be liable for all the acts of the said A. B. 
 in attempting to obtain such possession, to the same extent as 
 if he had done the same acts himself. 
 
 § 42. Entry under Legal Process. — The court instructs the 
 jury, that this is an action against three defendants, charging 
 a joint trespass on real estate, and if the jury find, from the 
 evidence, under the instructions of the court, that befoi'S, and 
 at the time of the alleged trespass, the said defendant, F., was 
 a constable, and had in his possession, to execute, the execu- 
 tion introduced in evidence, and by virtue thereof had levied 
 upon and taken in execution the crops in question, and at the 
 time of the alleged trespass entered upon the land for the pnir- 
 pose of making a sale of said property, by virtue of said levy, 
 and that the defendants, T. and B., entered upon said land 
 along with the constable, for the purpose of attending said 
 sale, as spectators or bidders upon the property, then the de- 
 fendants are not liable for trespass in this suit, unless they un- 
 necessarily injured said real estate or the crops growing 
 thereon, or other property situate on said premises. 
 
 § 43. Trespasser Ab Initio. — The jury are instructed, that a 
 person obtaining lawful and peaceable entry into the premises 
 of another, may become a trespasser from the beginning, by 
 an abuse of the privilege for which he professed to enter; 
 and such abuse may consist in doing any unlawful act or thing 
 injurious to the occupier of the premises and against liis will. 
 Cooley on Torts, 462; 1 Hill, on Torts, 105; Snydaeker vs. 
 Bwsse, 51 111., 357; Purrin(jton vs. Loring, 7 Mass., 3S8; 
 Kimball vs. C-uster, 73 111., 3S9. 
 
 Although the jury may find, from the evidence, that the 
 defendant, F., at the time of the alleged tresjxass, was acting 
 as sheriff of this county, and that he had in his hands to 
 execute, the execution introduced in evidence, and that he 
 entered upon the i)rcmises in question for the purpose of 
 making a levy upon the personal property situate thereon.
 
 TRESPASS. 545 
 
 and did malcc sncli levy, and took and carried away paid pi-op- 
 erty, professing to act nnder said execution, still, if the jury 
 further believe, from the evidence, that the plaintiff was the 
 owner of the pro]3erty, and in the peaceable ]^ossession of it 
 at the time, and that the defendant, F., in making said levy 
 and in taking away said property, did not act with reasonable 
 care and prudence, but liandled the same in a rough and 
 grossly nogligent manner, and that the goods were materially 
 injured thereby, then such conduct was an abuse of the process 
 of court, and the execution furnishes no protection to the said 
 defendant, F., for the acts so committed, and the jury should 
 find liim guilty of trespass in making the original entry upon 
 said premises. 
 
 The law is that, if a person has lawful authority to enter 
 the premises for one purpose and he forcibly enters for a 
 different purpose against the will of the person in possession, 
 he will be guilty of a trespass. Norton vs. Craig, 68 Me., 275. 
 
 § 44. Entry Obtained by Fraud. — The jury are instructed, 
 that actual injurious force is not necessary to constitute tres- 
 pass upon the premises of another, and that if a person obtains 
 a lawful and peaceable entry into the dwelling-house of 
 another, and then abuses the privi'ege for which he professed 
 to enter, he will be a tres])asser from the beginning. Such 
 abuse may consist in doing any act or thing injurious to the 
 occui)ierof the premises. 
 
 And in this case, if the jury believe, from the evidence, that 
 the said A. B., by preconcert with the other defendants, and 
 by false pretenses or by any subterfuge, obtained an entrance 
 into the dwelling-house of the plaintilf, and after such entry, 
 contrary to the express command, or against the known wishes 
 of the plaintiff's {^ife), unbolted and opened the door of 
 said house for the purpose of allowing the other defendants 
 to enter, and that they did then and there enter, then the 
 entry of all the defendants was a trespass, and the jury should 
 find the defendants guilty. KiirJjall etal. vs. Custer^ 73 111., 
 389. 
 
 § 45. Joint Trespassers. — The court instructs the jury, as a 
 matter of law, that in an action of trespass, if it appears that 
 35
 
 5i6 TEESPASS. 
 
 a trespass has been committed, all who encouraged, advised 
 or assisted in the act of trespass, are equally guilt j, ^vhether 
 thej were present and took part in the act or not. Barnes 
 vs. Ennenga^ 63 la., 497. See Boswell vs. Gates^ 56 la., 143. 
 
 In this case, if the jury believe, from the evidence, that the 
 trespass complained of in the plaintiff's declaration, was actually 
 committed by some one, then the law is, that any and all per- 
 sons who encouraged, advised or assisted in such trespass are 
 equally guilty with the person or persons who actually com- 
 mitted the trespass, by going upon the premises, etc. And if 
 the jury further believe, from the evidence, that any, or either 
 of the defendants encoui-aged, advised or assisted in the com- 
 mission of such trespass, they should find such person or per- 
 sons guilty. 
 
 If the jury believe, from the evidence, that before, and at 
 the time the trespass is alleged to have been committed, the 
 plaintiff was in the actual, ]!eaceable possession of the premises, 
 described in the declaration, and that in his absence and with- 
 out his knowledge or consent, some person broke open the 
 doors and entered the premises, and removed therefrom the 
 personal property mentioned in the declaration, without right, 
 as explained in these instructions, then the person so breaking 
 into said premises, and every other person who commanded, 
 encouraged, advised or assisted in such acts, if the evidence 
 shows that there were such other persons, are all equally 
 guilty of trespass. 
 
 § 46. Taking Personal Property, Aggravation, etc. — That 
 while this is an action for an alleged trespass to real estate, 
 still, the taking and carrying away of the personal property 
 described in the plaintiff's declaration, may be included in 
 estimating the damages for trespassing on the real estate; 
 provided, the jury find, from the evidence, that the defendants 
 are guilty of trespassing upon the real estate, as charged in 
 the declaration, and that they did take and carry away such 
 personal property. 
 
 TKESPASS BY ANIMALS. 
 
 Note. — The statutes and local laws and customs of the diflFerent states, 
 relating to domestic animals running at large, as well as those requiring the
 
 TRESPASS. 547 
 
 owner of lands, under certain circumstance?, to protect them by a sufficient 
 fence, are so various, it is not easy to classify them. Souie of those laws 
 provide, that unle«s the owner causes his lands to be fenced with such a 
 fence as is prescribed, he shall maintain no action for trespasses commitfed 
 by domestic animals on said land. In some states th3 common law requir- 
 ing tlie owners of such animals to keep theui on his own land, is in force. 
 In other states, from the earliest period, domestic animals have been 
 allowed to run at la-ge in the highways, and on unenclosed lands, either by 
 general law or custom or by vote of the township or county. A more com- 
 mon provision is one requiring the respective owners of adjoining premises 
 to build and maintain one half of the partition fence between them, the 
 respective portions being determined by agreement, by prescription or by 
 an order of the fence viewers. 
 
 In preparing instructions relating to these matters, no attempt has 
 been made to do more than to furnish a few, examples of the most general 
 character. 
 
 § 47. Animals not Perinittecl to Run at Large. — The court 
 instructs the jury, that by the general law of this state it is 
 unlawful to suffer or permit domestic animals, such as horses, 
 cattle, sheep and hogs, to run at large in the public streets 
 or highways, or on other unenclosed lands (except it be in 
 counties, towns, cities or villages where such running at large 
 is authorized by a vote of the legal voters of such counties, 
 towns, cities or villages). 
 
 § 48. Owner of Lands not Bound to Fence. — The jury are 
 further instructed, that no person in this state is bound to 
 fence his lands or premises against domestic animals, such as, 
 etc., except in those counties, cities or towns where, by a spe- 
 cial vote ctf the legal voters thereof, such animals are permit- 
 ted to run at large. And the jury are further instructed, that 
 there is no legal evidence in this case, that domestic animals 
 could lawfully be permitted to run at large in tlie town of S., 
 at the time when the trespasses complained of are alleged to 
 have been committed. 
 
 If the jury believe, from the evidence, that, at the time of 
 the alleged trespass, the plaintiff was in the actual and peace- 
 able possession of the premises in question, and that the de- 
 fendant, at the sine time, suffered and permitted his hogs and 
 cattle to run at large, and that while they wei-e so running at 
 large they entered and went upon the plaintiff's field, as 
 charged in the declaration, and that the plaintiff' was thereby
 
 5-18 TEESPASS. , 
 
 damaged, tlien he is entitled to recover in tliis case, wlietlior 
 his premises were pru'.eeted by a good and sufficient fence or 
 not. 
 
 § 49. Animals Lawfully Rimning at Large— Land Protected by 
 Fence. — If tlie jury believe, from the evidence, that, at the 
 time of the alleged trespasses, the plaintiff was in the actnal 
 and peaceable possession of the premises in question, and had 
 the same protected by "a good and sufficient fence " {or by a 
 good and legal fence, as exj)lained in these instructions^ along 
 the highway, and that the defendant's cattle and hogs brolce 
 and entered the plaintiff''s field, as charged in the declaration^ 
 and further, that tlie plaintiff's crops were tliereby damaged ; 
 then the jury should find the defendant guilty ; and, in such 
 case, it is immaterial whether the defendant knowingly jier- 
 mitted the animals to run at large, or whether they escaped 
 from his pasture into the highway without his fault. 
 
 The jury are instructed, that in this state, cattle and horses 
 {except hulls, etc.) are permitted to run at large on the higli- 
 ways and open, unenclosed grounds, and all persons leave their 
 lands and crops exposed to the intrusion of such animals at 
 their peril. And in order to recover for injuries done to crops, 
 l)y cattle escaping onto the land, where sucli crops are grow- 
 ing, from the highway, or from unenclosed lands adjoining, 
 the injured party must show that he has his premises sur- 
 rounded by "a good and sufficient fence" {or hy good and law- 
 ful fence, etc). 
 
 Tliough the jury may believe, from tlie evidence, that the 
 defendant's cattle went upon plaintiff's land, and injured the 
 crops tliereon growing, as stated in liis declaration, still, 
 if the jury further believe, from the evidence, that tlie said 
 premises Avere not enclosed by "a good and sufficient fence" 
 (or hj a good and lawful fence, etc.), and that tlie cattle went 
 upon said j')remises, from the adjoining highway or unenclosed 
 fields, by reason of tliere being no good and sufficient fence 
 around [)laintift''s land, then he cannot recover in this case, 
 and the jury should find the defendant not guilty. 
 
 § 50. What a Sufficient Fence — By Statute.— The jury are 
 instructed, in this state, fences (four and one-half feet high.
 
 TKESl'ASS. 5 -±9 
 
 in good repair, consisting of raiis, timber, boards and posts, 
 hedges, or whatever the fence viewers of the town, where the 
 fence is situated, shall consider equivalent to a fence, four and 
 a half feet high, consisting of rails, timber, or boards and 
 posts), are deemed in law legal and sufficient. 
 
 § 51. Animals Escapiuis: through Division Fence. — The conrt 
 instructs the jury, that when two or more persons have en- 
 closed lands adjoining, each owner is required by law to make 
 and maintain a just proportion of the division fence between 
 them, and the part and proportion of such fence, to be built 
 and maintained by each, may be fixed and settled by the agree- 
 ment of the parties themselves; and if they are unable to 
 agree, then by the fence viewers of the towm. 
 
 When the owners of adjoining lands are unable to agree, 
 concerning the proportion of fence to be made or maintainedj 
 the matter may be submitted to the fence viewers of the 
 town, as provided by the statute, and their decision, w^hen 
 made, will be binding upon both the parties. 
 
 In order to maintain the issues on his part, the plaintiff has 
 only to prove that he was in the possession of the premises 
 described in the declaration, at the time of the alleged tres- 
 pass, and that the cattle and hogs of the defendant went upon 
 said prejnises, as charged, through that portion of the fence 
 which it was the duty of the defendant to make and maintain 
 — if the evidence shows that he was bound to make and main- 
 tain any portion of said fence, as explained in these instruc- 
 tions. 
 
 If the jury believe, from the evidence, that the cattle and 
 hogs of the defendant, broke and entered the plaintiff's field, . 
 as charged in the declaration, then it is wholly immaterial to 
 the issues in this case, whether the plaintiff's fence along the 
 highway, or his portion of the division fence, was in good or 
 bad condition, provided, the jury further believe, from the 
 evidence, tliat the animals in question did not get through 
 plaintiff's fence along the highway, nor through his portion 
 of the said division fence. 
 
 § 52. Burden of Proof. — That the burden of proving the 
 trespasses, complained of in plaintiif's declaration, is upon the
 
 550 TRESPASS. 
 
 plaintiff, and if lie lias failed to prove the same, or anj^ of 
 them, by a preponderance of evidence, then the jury must find 
 for the defendant, as to all the trespasses which the plaintiff 
 has failed so to prove. 
 
 § 53. Entry through Plaintiffs Portion of the Fence. — If the 
 
 jury believe, from the evidence, that at the time in question, 
 there was a line fence between the lands of plaintiff and defend- 
 ant, that a portion of said fence was owned by each of the 
 parties, then each was bound to keep in repair his own portion 
 of the fence; and, if the jury further believe, from the evi- 
 dence, that the plaintiff did not keep his portion in goe)d and 
 sufficient repair, and that by reason of such insufficiency, the 
 aniu'ials in question came upon the plaint ff's land, and com- 
 mitted the trespasses complained of, then the defendant is not 
 liable for any of the injuries occasioned by said stock. Scott 
 vs. BucT^, 85 111., 334. 
 
 If the jury believe, from the evidence, that the division 
 fence in question, before the time of the alleged trespasses had 
 been divided between the adjoining o\vnors by agreement, and 
 the portion of the fence to be kept in repair by each had been 
 assigned to him, so that each had a designated portion of the 
 fence to build and keep in reiair, then it was the duty of the 
 defendant to keep up such a fence on his portion of the line, as 
 would turn his own stock, at all events. And, if the jury fur- 
 ther believe, from the evidence, that the defendant did not do so, 
 and that his stock got upon the plaintiff's land, as charged in 
 the declaration, through that portion of the fence M'hicli the 
 defendant was bound to build and repair, and then injured the 
 plaintiff's cro])s, then the jury should find for the plaintiff. 
 Osburnvs. Adavis, 70 111., 281. 
 
 The law of this state, requiring the owners of adjoining 
 lands that are enclosed to each build and maintain his propor- 
 tion of the division fence, is intended exclusively for the ben- 
 etit of said adjoining owners; and in this case, if the jury 
 believe, from the evidence, that the cattle of the defendant 
 broke into, or went upon the lands of one A. B., adjoining 
 the lands of the plaintiff, and from thence came in upon the 
 lands of the plaintiff, and injured the crops there growing, 
 then the defendant is liable for such injury, whether the fence
 
 TRESPASS. 551 
 
 between tlic pLaiiitiff's land and that of the said A. B. was a 
 good and sufficient fence or not. Cooley on Torts, 339; 
 Lawrence vs. Comls, 37 IT. H., 331; Loi'd vs. Woivmoood, 
 29 Me., 2S2; Lynns vs. MerricJc, 105 Mass., 71; Cooh vs. 
 Morea, 33 Ind., 497; Aylesworth vs. Herrington^ 17 Mich., 
 417; McManus vs. Finan, 4 la., 2S3. 
 
 Wlien two or more persons have adjoining lands enclosed 
 in one common field by outside fences, and have no division 
 fence, then, if there is no agreement or arrangement between 
 them to the contrary, each person is bound to keep his own 
 stock upon his own land, and if he does not dd so, and injury 
 results therefrom to an adjoining owner, he will be liable in 
 trespass therefor. 1 Addi. on Torts, § 379; Bradbury vs. 
 Gilford, 53 Me., 99; Aylesworth vs. Herrimjton, 17 Mich., 
 417.
 
 CHAPTER XLiy. 
 
 TKOYER. 
 
 Sro. 1. By general owner. 
 
 2. By one having a special property. 
 
 3. By one in possession. 
 
 4. What interest the plaintiff must have. 
 
 5. Suit by servant or agent. 
 
 6. Burden of proof. 
 
 7. Plaintiff must prove conversion. 
 
 8. Property lost — Negligence of defendant. 
 
 9. Demand and refusal, prima facie evidence of conversion. 
 
 10. When demand not necessary. 
 
 11. What amounts to a conversion. 
 
 12. Title claimed by purchase from the owner. 
 
 13. Tender. 
 
 14. Price not paid, right to possession, when. 
 
 15. Temporary possession, not delivery, when. 
 
 16. Suit against ■warehousemen. 
 
 17. Warehousemen's lien. 
 
 18. Tender, waiver of production of money. 
 
 19. Measure of damages in suit by general owner. 
 
 20. Damages in suit by one having special property. 
 
 21. Damages in suit by lien holder. 
 
 22. Suit against lien holder. 
 
 23. Price paid not conclusive evidence of value. 
 
 24. Price paid 2}>'iinnfacie evidence of value. 
 
 25. What constitutes a sufficient demand. 
 
 26. Demand by agent — Ground of refusal must be stated. 
 
 § 1. By General Owner. — The court instructs the jiiry, that 
 if they believe, from the evidence, that the plaintiff was the 
 owner of the property in question, and entitled to the posses- 
 sion thereof, before and at the time of the commencement 
 of this suit, and that while he was so entitled to such posses- 
 sion, and before the commencement of this suit, he made a 
 legal demand of the defendant for the property, and that the 
 defendant tlien had the proj^erty in his possession, and refused 
 and neglected to surrender the same to the plaintiff upon such 
 demand, this would be evidunce of the conversion of the 
 
 (552)
 
 TKOVEE. bi)6 
 
 property by the defendant, and the jury should find for the 
 plaintiff. Piiterbano^h's Com. Law, 497; Moore's Justice, 
 § 301; 4 Am. & Eng. Encj., 117; Cuoley on Torts, 442. 
 
 § 2. By One Having a Special Property. — If the jury believe, 
 from the evidence, that the {animal) in question was not the 
 property of the defendant, but was the property of one A. 13., 
 and that the said A. B. had placed the same in the possession, 
 and in the care and custody, and under the control, of tlie 
 plaintiff, until he should call for the same, and that the plaint- 
 iff, at the time of the alleged conversion, was entitled to the 
 possession of the {aniinal) then the j^laintiff had such a pro]D- 
 erty in it as will enable him to sustain this action; provided, 
 the jury further find, from the evidence, that the defendant 
 wrongfully took said [iroperty and converted the same to his 
 own use, as charged in ]ilaintiff's declaration. Cooley on 
 Torts, 443 ; Moore's Justice, § 304. 
 
 § 3. Suit by One in Possession. — That when a person is in 
 the rightful and peaceful possession of property, and a stranger, 
 or person not the owner, wrongfully takes it from him, and 
 converts it to the taker's own use, then the person in posses- 
 sion can recover the full value of the property in this form 
 of action for the wrong done — his possession being sufficient 
 evidence of title in liim against a wrong-doer, or one showing 
 no right or title to the property. Cooley on Torts, 445; 1 
 Hill, on Torts, 495; Craig vs. Gilbreth, 47 Me., 416; Moorman 
 vs. QuicJc, 20 Ind., 67; Boweii vs. Fen.iier\ 40 Barb., 383; 
 Moore's Justice, § 305. 
 
 Though you may believe, from the evidence, that the said 
 A. B. was the general owner of the property, and is now enti- 
 tled to the possession thereof, still, if you further believe, 
 from the evidence, that before the time of the alleged con- 
 version, the said A. B., as such owner, placed the said prop- 
 erty in the possession, and under the care and control, of 
 the plaintiff, for the purpose of having the same fed and taken 
 care of by him {or stored hy him), then such right and posses- 
 sion by the plaintiff of the property in question constitutes a 
 sufficient special property therein to enable the plaintiff to 
 maintain this suit; provided, you further believe, from the
 
 554 TROVEE. 
 
 evidence, that before the commencement of" this suit, and 
 while the plaintiff so had it in his possession, tJie defendant 
 wrongfully took the pro| ertyand converted it to his own use, 
 within the meaning of the law, as explained in these instruc- 
 tions. 
 
 That although the law is, that to entitle the plaintiff to 
 recover in this form of action, he must show that at the time 
 of the alleged conversion he was the general owner of the 
 property, and entitled to the immediate possession, or that he 
 had a special right or interest in the property, with an im- 
 mediate right of possession, yet, in this case, if you iind, from 
 the evidence, that the general ownership of the property %vas. 
 in one A. B., but that the plaintiff had the actual possession, 
 charge and control of the property at the time of the alleged 
 conversion, not as the agent or servant of the said A. B., then 
 the plaintiff had such a property in the {animal) as will en- 
 able him to recover in this suit; provided, you find the de- 
 fendant guilty of the wrongful conversion of the property, as 
 charged in the declaration. Cooley on Torts, 442; Stephenson 
 vs. Little, 10 Mich., 433; Owens vs. Weedman, 82 111., 409; 
 Dudley vs. Ahner, 52 Ala., 572; Staples vs. Smith, 48 Me., 
 470; 1 Hill, on Torts, 495. 
 
 § 4. What Interest Plaintiff Must Have. — The court instructs 
 the jury, that this is what is known in law as an action of 
 trover, or trover and conversion, and, to entitle the plaintiff to 
 recover, the jury must believe, from the evidence, that the 
 plaintiff was the absolute owner of the property in question, 
 or else that he had some special interest therein, which 
 entitled him to the possession of the propei'ty at the time of 
 the alleged conversion. Cooley on Torts, 442 ; 2 Greenl. on 
 Ev., § 637. 
 
 § 5. Suit by Servant or Ajrent. — The jury are further in^ 
 structed, that when a person has ]iersonal property in his care 
 and custody, as the servant or agent of the owner, and the 
 property is taken from the possession or premises of the 
 owner (or strays away, and is taken u]) by a person not the 
 owner), then the duty devolving upon the servant or agent, 
 as such, will not entitle him to maintain an action of trover for
 
 TEOVER. 555 
 
 the property. Cooley on Torts, 4-i7; Farmers' BJc. vs. Mc- 
 Kee, 2 Penii. St., 318. 
 
 § 6. Burden of Proof. — The court instructs the jury, that in 
 order to rrjaintain this action, the plaintiff must prove, by a 
 preponderance of evidence, that he was either the general 
 owner of the property in controversy, and lawfully entitled to 
 the possession thereof at the time of the alle.ojed conversion, 
 or that he had some special interest in it at the time of the 
 alleg'cd conversion, which entitled him to the possession of the 
 property; and if the jury believe, from the evidence, that at 
 the time, etc., the plaintiff' was not the general owner of the 
 property, and had no special interest in it, but was holding it 
 as the more servant or agent of the owner, then they must 
 ■ Und for the defendant. 2 Greenl. on Ev., § 636 and 642. 
 
 In order to sustain this action, the plaintiff must show, by a 
 preponderance of evidence, that at the time he demanded the 
 {animal) from the defendant, if such demand has been proved, 
 he was the owner of the property, and entitled to the imme- 
 diate possession thereof, or that he had some right or interest 
 in the same, which entitled him to the possession of it at the 
 time; and if you find, from the evidence, under tlie instruc- 
 tion of the court, that he has failed to prove either of these 
 things, by a preponderance of evidence, then you should find 
 for the defendant. Forth vs. Pui'sley^ 82 111,, 152. 
 
 § Y. Plaintiff Must Prove Conversion. — That to warrant a 
 verdict, in this case, for the plaintiff, the jury must find, from 
 the evidence, not only that the plaintiff' was the general or 
 B])ecial owner of the property, with the right to immediate 
 possession at the time of the alleged conversion, but it must 
 further appear, from the evidence, that the defendant wrong- 
 fully converted the property to his own use. Greenl. on Ev., 
 § 636, 642; Moore's Justice, § 30T. 
 
 You are instructed that a wrongful taking and carryins^ 
 away of the personal property of another does not alone con- 
 stitute trover, or trover and conversion. To render the taker 
 liable, it must further appear that the property was taken and 
 carried away by the person taking it, with an intent to convert 
 the same to his own use, or that he has since the taking actually
 
 556 TEOVEK. 
 
 converted it to his own use. And in tins case, althono-li yon 
 may believe, that tlie defendant wi'ongfully took and removed 
 the property mentioned in the declaration, and placed the 
 same in, etc., fur safe keeping, intending to then store it for 
 the use of the plaintiff, and to hold the same subject to his 
 order, and so notified the plaintiff, then the defendant would 
 not be guilty of a wrongful conversion of the property. 
 Niemetz vs. ISt. Louis, etc., 5 Mo. App., 59. 
 
 Although you may believe, from the evidence, that the de- 
 fendant came rightfully into the possession of the property in 
 question by finding the same (or taking the same up as an es- 
 tray) still, if you furtlier believe, from the evidence, that the 
 plaintiff was the actual owner of tlie property, and entitled to 
 the possession thereof, and that these facts were known to 
 defendant, or that he had good reason to believe them to be 
 true, and that he then, knowingly and intentionally, converted 
 the same to his own use by selling the same, then this would 
 constitute a wrongful conversion within the meaning of the 
 hiw, and you should find for the plaintiff. 
 
 § 8. Property Lost— Negligence of Defendant. — -If the jury 
 believe, from tlie evidence, under the instructions of the court, 
 that the defendant came riglitfally into the possession of the 
 property, and while he held it so in possession, and before any 
 demand was made on him for it, tlie {animal) was accidently 
 killed, without any willful intention on tlie part of tlie defend- 
 ant {or that the said goods were lost or stolen out of the posses- 
 sion of the defendant), though he may have been guilty of 
 negligence in that behalf, then the plaintiff" cannot recover in 
 this suit, althougli the juiy may believe, from the evidence, 
 that a demand was made by the plaintiff upon the defendant 
 for the property before the property was commenced. 1 Ad- 
 dison on Torts, § 407,471; Cooley on Torts, 449; Bovolin vs. 
 Nye, 10 Cush., 410. 
 
 § 9. Demand and Refusal Prima Facie Evidence, etc. — The 
 
 jury are instructed, that when one person has property of an- 
 other, whether rightfully or wrongfully, in his possession, and 
 the owner is entitled to the immediate possession of the ])rop- 
 erty, then a demand for such possession by the owner and a
 
 TROVER. 557 
 
 refn?;al to deliver the property by tlie one so having it in pos- 
 session, is prima facie evidcncQ of a wrongful conversion of 
 the property to his own use by the latter. 4 Am. & Eng. 
 Ency., 115. 
 
 § 10. AVlion Demand not Necessary. — The Jury are further 
 instructed, as a matter of law, that v;hile, in some cases, a de- 
 mand by the owner, for the possession of property in the 
 hands of another, and a refusal to deliver the same by such 
 other person, is prima facie evidence of a wrongful conver- 
 sion of the property to his own nse by the person so having it 
 in his possession, still, such demand and refusal are never essen- 
 tial before commencing a suit to entitle the ]:)laintift' to recover; 
 provided, it appears, from the evidence, that, before the com- 
 mencement of this suit, the defendant had actually converted 
 the property to his own use, by intentionally killinor or destroy- 
 ing it, or by selling or otherwise disposing of it for his own 
 benefit, and so as to deprive the ]:»laintiff of it without his con- 
 sent. Gottlieb vs. Hartman, 3 Col., 53; Kenrick v. Mogei's, 
 4 N. W. Kep., 46. 
 
 § 11. What Amounts to Conversion. — The jury are instructed 
 as a matter of law, that when the property of one person 
 comes rightfully into the possession of another, to be held by 
 him temporarily for some specific purpose, and when that is 
 accomplished, tlien to be returned to the owner, if the person 
 so taking possession of the property willfully kills or destroys 
 it, or sells it, or otherwise disposes of it, for his own use and 
 benefit, and so as to deprive the owner of it without his con- 
 sent, this, if proven, will amount to a wrongful conversion of 
 the property, and no demand for the possession need be made 
 by the owner before commencing suit to recover the value of 
 the propert3^ Cooley on Torts, 44S; 4 Am. & Eng. Ency., 
 108; Moore's Justice, § 307. 
 
 If you find, from the evidence, that before and at the time 
 of the alleged c<)nversic)n, the ])laintiff was the owner of the 
 property in question, and entitled to the immediate possession 
 thereof, and that M'hile the plaintiff was such owner and en- 
 titled to such possession, and before the commencement of this 
 suit, the defendant wrongfully took the property into his pos-
 
 558 TKOVEK, 
 
 session, and that wliilo the property was so in his possession 
 the {animal^ was killed (or the goods were lost or stolen from 
 his possession), before the commencement of this suit, this will 
 constitute a wrongful conversion of the property, and you 
 should find the defendant guilty; and, in such case, it is wholly 
 immaterial whether the plaintiff made a demand for the prop- 
 erty before commencing the suit or not. 1 Addison on Torts, 
 § 471; Cooley on Torts, 448. 
 
 § 12. Title Claimed by Piiroliase from the Owner. — The jui'y are 
 instructed, that as between the parties themselves, the title to 
 personal property passes without delivery whenever the sale 
 is completed, and the ]iarties intend it as such. An agree- 
 ment to sell an article by weight or measure, where the article 
 is selected and identified, and the price agreed upon, may be 
 a completed sale without delivery, if the parties intend it as 
 such. Benj. on Sales, § 311; Riddle vs. Varnum, 20 Pick., 
 280; Beed vs. Burgess, 34 111., 193; Prescoit vs. LocJce, 51 K 
 H„ 94; Bussell vs. Carrington^ 42 N. Y., 118; Morse vs. 
 Sherman, 106 Mass., 430; Lester vs. East, 49 Ind., 588; Wil- 
 Mnson vs. Holiday, 33 Mich., 386; McClung vs. Kelley, 21 
 la., 508. 
 
 As between the parties, delivery is not essential to the com- 
 pletion of a sale of chattels. If the sale is completed and 
 nothing remains to be done but to deliver the property, then 
 the purchaser may take the goods at any time after the sale; 
 provided, he takes them before any lien attaches in the hands 
 of the vendor and the transaction is conducted in good faith. 
 Oruikshank vs. Cogswell, 26 111., 366. 
 
 If you believe, from the evidence, that the defendant agreed 
 to sell, and did sell, the {animal) in question to plaintiff for 
 
 S , and that it was agreed, at the time, that he should 
 
 have thirty days in which to pay the money, then no delivery 
 was necessary to vest the title of the proi)erty in the plaintiff". 
 
 If you believe, from the evidence, that the defendant bar- 
 gained and sold the {animal) in question to the plaintiff, at a 
 given price, to be delivered when paid for, and that the plaint- 
 iff" afterwards, and within a reasonable time thereafter, and 
 before the comn^encement of this suit, paid the purchase jirice 
 in full, or paid a part thereof, and tendered to the plaintiff
 
 TEOVER. 559 
 
 the rcniainder, and tlien demanded tlie possession of the 
 property, and that defendant, upon such demand, refused to 
 deliver possession, and afterwards sold the {a?ii7nal) to another 
 person, without the consent of the plaintiff, then the plaintiff 
 is entitled to recover in this suit. Ililliard on Sales, 119. 
 
 § 13. Tender. — The jury are instructed, that a tender of 
 any amount of money, if proved, in this case, lias the same 
 effect on the rights of the parties as a payment of the same 
 amount would have had if made at the same time. Beuj. 
 on Sales, § 712. 
 
 § 14. Price not Paid — Right to Possession, When. — The court 
 instructs the juiy, that in the case of a sale of personal 
 property, at a stipulated price, and when no time of payment 
 is agreed upon, the law presumes tliat payment is to bo 
 made at the time of delivery; and in such case, until the pur- 
 chase price is jiaid, no such title passes to the purchaser as 
 will enable him to maintain trover against the vendor for the 
 conversion of the property, unless there has been a delivery 
 of the property under the sale, or a tender of full ])ayment 
 has been made. Benj. on Sales, § 677; Soutkivestern^ etc., 
 Co. vs. Plant, 45 Mo., 517 ; Scudder vs. Bradhurry, 106 
 Mass., 422; Mich., etc., Ed. Co. vs. Phillips, 60 111., 190. 
 
 In the case of a sale of personal property for cash, which is 
 not paid at the time, and the property remains with the seller, 
 he has a right to retain possession of the property until he is 
 paid in full therefor, and if the purchase price is not paid, he 
 may, after demanding payment of the purchaser, and waiting 
 a reasonable time thereafter for payment to be made, sell 
 the property to another person without rendering himself 
 liable to an action of trover therefor, nnlcss such payment is 
 either made or tendered in full before such sale is made. 
 
 If you believe, from the evidence, that the plaintiff bought 
 the (Jioi'se) in question from the defendant, and gave his note 
 for a part of the purchase price, and that the defendant has 
 since sold the note to a third person, in good faith, for a val- 
 uable consideration, and before the note became due, then, for 
 the purposes of this suit, you should consider the case as 
 though the note had been paid and the {horse) paid for in full 
 by the plaintiff.
 
 560 TKOVEE. 
 
 § 15. Temporary Possession — Not Delivery, "VMien. — That in 
 the case of the sale of personal property, when the possession 
 of the property is not transferred at the time of the sale, it is 
 not enough to constitute delivery of the property that the 
 purchaser obtains the temporary possession or control of the 
 property for a specific purpose. To have the effect to vest 
 the title in the purchaser in such a case, the jury must believe, 
 from the evidence, that the possession was transferred by the 
 seller to the purchaser with the intention of vesting the title 
 to the property in the purchaser, under the contract of sale. 
 
 § 16. Suit against Warehousemen. — If the jury believe, 
 from the evidence, that at the time of the alleged conversion 
 the property in controversy was the property of the plaintiffs, 
 and that they were entitled to the possession of it, and that 
 the defendants then had the same in their possession, and if 
 the jury further believe, from the evidence, that the plaint- 
 iffs, by their duly authorized agents, demanded the property 
 of the defendants, and that they refused, without right, as ex- 
 plained in these instructions, to deliver up the property, this 
 demand and refusal \& prhna facie evidence of a con\'ersion of 
 the property by the defendants to their own nse. 
 
 If you believe, from the evidence, that the property in 
 controversy belonged to the plaintiffs, and that they were en- 
 titled to the possession of the same, at the time of the alleged 
 conversion of the property, and, also, that the plaintiffs de- 
 manded the same of the defendants before the commencement 
 of this suit, and at the same time offered to pay to them all 
 the freight, storage and other charges which had accrued upon 
 the ])roperty in question, then, if you further find, from the 
 evidence, that the defendants refused, upon such demand, to 
 deliver the ]:)roperty to the plaintiff's unless the freight and 
 charges upon other goods, not received or stored by the 
 defendants at the same time with the goods in question, were 
 also paid, then these facts would amount to a wrongful con- 
 version of the property by the defendants to their own use, 
 and you should find the defendants guilty. Edwd. on Bail., 
 § 350, 351. 
 
 § 17. Warehonseman's Lien. — The court instructs the jury, 
 that a warehouseman, on receiving goods in the regular course
 
 TKOVER, 561 
 
 of his biisiiioss, has a lien TT])on the goodu for anj advances 
 wliich he may have made to the cavi'ier for the carriage of the 
 goods, and also for liis reasonable charges for storage. 
 
 And, in this case, if you believe, from the evidence, that the 
 defendants, A. and J3., on or about, etc., received the property 
 in question in the regular course of their business as ware- 
 housemen, and paid to the carrier the sum of $ , which 
 
 had accrued for the carriage of the goods, and afterwards kept 
 the goods in store, then the defendants would have a right to 
 retain the possession of the goods until the sum advanced by 
 them, and all proper chai-ges for storage, was paid or tendered. 
 Ilale vs. Barrett^ 20 111., 105. 
 
 § 18. Tender — Waiver of Production of Money. — If the jury 
 believe, from the evidence, that the plaintiffs were the owners 
 of the property in question at the time of the alleged demand 
 and tender, and that the defendants then had the same in their 
 possession, as warehousemen, claimmg the right to hold the 
 ])roperty until certain charges thereon should be paid, and 
 that while they so held the goods, and before the commence- 
 ment of this suit, the plaintiffs, by their agent, made a demand 
 on the defendants for the property, and then offered to 
 
 pay the sum of % upon defendants' claim upon said 
 
 goods, and that the sum so offered covered all that was then 
 due to defendants for storage and all other charges on said 
 goods, and, if the jury further believe, from the evidence, 
 that upon such demand and offer the defendants refused to 
 surrender the pro]")erty, and told the person making such de- 
 mand that he need not trouble himself to take out the money 
 so proposed to be paid, as it would not be accepted, nor would 
 the goods be delivered, unless plaintiffs first paid the sum of 
 
 % ~ in discharge of defendants' claim on the goods, then 
 
 this was a waiver of the necessity for producing and exhibit- 
 ing to the defendants the money so proposed to be paid in 
 order to constitute a good tender of that amount for the pur- 
 poses of this suit. Benj. on Sales, § Y14; Hazzard v&. Loring^ 
 10 Cush., 267; 2 Greenl. Ev., § 603; 2 Pars, on K &B., 623. 
 
 The debtor has no right to insist that the creditor shall 
 admit that no more is due in respect of the debt for which 
 the tender is made. He may exclude any presumption against 
 36
 
 5G2 TEOVEE. 
 
 himself that lie admits the payment to he onh' for a part, hut 
 he can go no further, and his tender will not he good if he 
 adds a condition that the creditor shall acknowledge that no 
 more is due. Benj. on Sales, § 722; Buuoen vs. Owen, 11 Q. 
 B., 131. 
 
 § 19. Measure of Damages — Suit by General Owner. — If, 
 under the evidence and the instructions of the court, you find 
 the defendant guilty, then the measure of the plaintiff's dam- 
 ages will be the value of the property at the time of the 
 conversion, and six per cent, interest thereon since that date. 
 Tenney vs. State Batik^ etc., 20 Wis., 152; Htird vs. TluUell^ 
 26 Conn., 389; Yater vs. Mullen, 24 Ind., 277; Polh vs. 
 Allen, 19 Mo., 467; Cutter vs. Faiuiing, 2 la., 580; Eejpley 
 vs. Davis, 15 Mich., 75. 
 
 § 20. Damages, One Hiivin^ Special Property. — Though the 
 jury may believe, from the evidence, that tho defendants are 
 guilty, still, if the jury fui'tlier find, from the evidence and 
 under the instructions of the court, that the plaintiff was not 
 the general owner of the property, nor responsible to the 
 general owner for its return, but only had a special interest 
 therein as, etc., then he can only recover the value of such 
 special interest. And if the jurj' further find tliat there is no 
 evidence before them tending to show the value of such 
 special interest, then the jury can only give a verdict in favor 
 of the plaintifl: for nominal damages. 
 
 § 21. Danias^es, Lien Hold.'Ar. — Though the jury may believe, 
 from the evidence, under the instruction of the court, that the 
 defendants are guilty of a wrongful conversion of the property 
 in question, still, if the jury further believe, from the evidence? 
 that the plaintiff was not the general owner of the property, 
 but only had a lien thereon to secure an indebtedness due to 
 him, tlien he can only recover the amount of such lien, includ- 
 ing principal and interest; provided you find, from the evi- 
 dence, that the value of the property exceeds the amount of 
 such inlebtedness. And in case the. jury find the amount of 
 such lien to be greater than the value of the property, then 
 the measure of damages will be tho value of the property at 
 the time of the conversion, with six per cent, interest thereon.
 
 TROVER. 5G3 
 
 § 22, Suit against a Lien Holder. — If the jury, from the 
 evidence, under the instructions of the court, find the defend- 
 ants guilty, then they may assess the plaintiff's damages at 
 the value of the property at tlie time the demand was made, 
 with interest thereon at the rate of {six) per cent, per annum 
 from that time, less whatever amount the jury find, from 
 the evidence, was due to the defenilants for {/"/'eight and 
 charges). 
 
 § 23. Price Paid not Conclusive Evidence of Value. — The jury 
 are instructed, that the price paid or agreed to be paid for the 
 {horse) in question is not conclusive evidence of the value of 
 the {horse). The jury should fix the value of the property 
 from a consideration of all the evidence in the case bearing 
 upon that point. 
 
 § 21. Price Paid Prima Facie Evidence of Value. — While the 
 price ])aid for the property in question is not conclusive evi- 
 dence of its value, it may be taken into account and considered 
 by the jury, with the other evidence in the case, in determin- 
 ing what was the actual value of the property. 
 
 § 25. The Demand — Wliat Constitutes. — The court instructs 
 the jury, that no particular form of words is necessary in mak- 
 ing a demand for tlie possession of property before bringing a 
 suit. If tlie jur}'- believe, from the evidence, that, before com- 
 mencing this suit, the plaintiff had an interview with the de- 
 fendant, and that, from the language then used by plaintiff, 
 the defendant understood the plaintiff came for, and was ask- 
 ing to have the property in dispute given up to him, and that 
 with that undei'standing, defendant said * * * this in 
 law would be equivalent to a demand and refusal. Cooley on 
 Torts, 452. 
 
 The court instructs you, that while no particular form of 
 words is necessary in making a demand for the possession of 
 personal property, still, to constitute a valid demand, the lan- 
 guage used must be such as to clearly denote that a demand 
 is then made for the possession of the property, and so as to 
 leave no reasonable grounds for doubt as to what property is 
 referred to ; and the demand must be made by some person
 
 564 TKOVER. 
 
 authorized to receive the possession, and then and there pres- 
 ent to receive it- 
 
 To constitute a legal demand of jn-operty, in this class of 
 cases, it is not necessary for the demanding party to make 
 use of the word "demand," or to specify, by name or partic- 
 ular description, the property demanded; but any language 
 which makes known to the party on whom the demand is 
 made that the demandant desires the possession of the prop- 
 erty, and informs him, by reference or otlierwise, what prop- 
 erty he desires possession of, is sufficient to constitute a demand. 
 Cooley on Torts, 452. 
 
 § 26. Demand by Agent — Ground of R fasal Must be Specified. 
 
 — The court instructs the jury, that a party holding jn-operty, 
 which he refuses to deliver on demand, because he doubts the 
 authority of the person making the demand, must place his 
 refusal distinctly upon that ground, or that excuse will not 
 avail him upon the trial. If the refusal to deliver is placed 
 upon any other ground at the time, the party cannot, after suit 
 is brought, place his refusal upon different grounds, as an ex- 
 cuse for not delivering the property. 
 
 When a demand is made by an agent, and the person from 
 whom the demand is made has reasonable grounds for doubt- 
 ing the agent's authority, he may lawfully refuse to comply 
 with the demand. The evidence of agency should be such 
 as an ordinarily jirudent man would feel justified in acting 
 upon, knowing that he would be liable for the value of the 
 property if he should deliver it to a person not authorized to 
 receive it. Ligalls vs. Bulldey^ 13 111., 315; Kivie vs. Dale^ 
 14. 111. App., 308. 
 
 \See Be2:)Ieiin.]
 
 CHAPTER XLV. 
 USUKT. 
 
 SUIT BY PAYEE OF NOTE. 
 
 Sec. I. Interest forfeited. 
 
 2. Presumption from the pa5'ment of usury. 
 
 3. Interest paid to be credited on principal. 
 
 4. Excess paid as commissions, etc., when not usurious. 
 
 5. Attempt to evade the statute. 
 
 6. Contract must be proved as pleaded. 
 
 SUIT BY ASSIGNEE, 
 
 7. Note given for usury. 
 
 8. Not growing- out of antecedent transactions. 
 
 9. Bona fide holder. 
 
 SUIT BY PAYEE OF NOTE. 
 
 § 1. Interest Forfeited. — The court instructs the jury, that 
 where a piirt}" contracts for, or receives a greater rate of inter- 
 est than is allowed by law, and usury is pleaded, he cannot 
 recover an}'- interest whatever on the principal sum loaned, 
 and all payments made upon the interest so agreed to be paid, 
 if any are proved, must be allowed as payments upon the 
 ]5rincipal. 
 
 § 2. Presumption from the Payment of Usury. — The court 
 furliier instructs the jury, that if they believe, from the evi- 
 dence, under the instructions of the court, that any usurious 
 interest has been paid by the defendant, and accepted by the 
 plaintiff, upon the transaction in question, then that fact is 
 prima facie evidence of a usurious contract to pay such 
 usury. Whether there was a usurious contract or not in this 
 case, is a question of fact to be determined by the jury, from 
 a consideration of all the evidence in the case. Heinlack v. 
 CraUree, 77 111., 182. 
 
 (o65)
 
 506 tJSUKT. 
 
 § 3. Interest Paitl to be Creilited on Princii)al. — The court in- 
 structs the jury, that if tliey believe, from the evidence, that 
 
 the defendant borrowed of the plaintiff the sum of § , for 
 
 which he f^ave the note sued on in this case, and that, at the 
 time the money was so borrowed, it was agreed by the parties 
 that the defendant should pay for such loan, besides the inter- 
 est mentioned in the note, additional interest equal to 
 
 per cent, per annum {or the sum of $ ), then such addi- 
 tional interest {or additional sum) made the transaction usu- 
 rious; and, under the statute of this state, forfeits the whole of 
 the interest. 
 
 And if you further believe, from the evidence, that the de- 
 fendant has paid any interest on said note, then such payment 
 must be credited as payment on the principal sum loaned, and 
 you should find accordingly. 
 
 If you believe, from the evidence, that at or about the time 
 the note sued on in this case was given, the defendant bor- 
 rowed of the plaintiff the sum of (81, -^OO) for the ]^eriod of 
 {tioo) years, and that in consideration thereof, and to secure 
 the payment of the sum so borrowed, the defendant executed 
 and delivered the note for (S'2,000), bearing interest at the rate 
 of (eight) per cent, per annum fi-om date, and if you further 
 believe, from the evidence, that the (§100) included in the 
 note, in excess of the (§1,900) borrowed, was allowed and 
 agreed to be paid as interest on the sum borrowed, then the 
 transaction was a usurious loaning of money, and, under the 
 laws of this state, the plaintiff has forfeited the whole of tlie 
 interest accruing upon the note, and your verdict should be 
 for the amount originally loaned, less all the payments made 
 thereon, whether of principal or interest, if any such pay- 
 ments are shown by the evidence. Harris vs. Bi^essler, 119 
 111., 467. 
 
 § 4. Excess Paid as Commissions, etc. — If the jury believe, 
 from the evidence, that the said A. B. was employed by the 
 defendant to obtain for him a loan of money, with the under- 
 standing or agreement that he w^ould pay or compensate the 
 said A. B. for his services in obtaining said loan, and also tliat, 
 at or about the date of the note in question, the said A. B. 
 negotiated a loan from the plaintiff to the defcnlant — that
 
 usuKT. 567 
 
 siicli loan was subsequently made, and tlie note in qnestion in 
 til is suit given to secure the payment of such loan, then, if 
 the jury further believe, from the evidence, that upon such 
 loan being made, the defendant agreed to pay the said A. B, 
 the sum of ($100) for his services in effecting such loan, and 
 that the said sum of ($100) was not paid by the defendant, 
 but, by agreement of all the parties, was included in said note, 
 as a part of the principal thereof, this would not render the 
 transaction usurious, and the jury should find for the plaintiff 
 the full amount called for by said note, both principal and 
 interest, after ci'editing thereon all payments, if any are shown 
 by the evidence to have been made upon the said note. 
 Philips vs. liolerU, 90 111., 4^2; Cox vs. Life Ins. Co., 113 
 111., 3S2. 
 
 § 5. Attempts to Evade the Statute. — The jury are instructed, 
 as a matter of law, that every shift, device or trick which 
 may be resorted to for the purpose of evading tlie statute 
 against usurious contracts, will bring the transaction within 
 the statute, as clearly as if its provisions had been directly 
 and in terms violated; and if tlie transaction is, in truth and in 
 fact, a loaning of money for a payment, made or agreed to be 
 made, greater than the interest on the loan at the rate of 
 {eight) per cent, per annum, the transaction is usurious. 
 
 And in this case, if you believe, from the evidence, that the 
 defendant borrowed from the plaintiff the sum of dol- 
 lars, and paid, or agreed to pay therefor, any sum greater, or 
 in excess of the interest, at the rate of {eight) per cent, per 
 annum, on the money borrowed, this would render the trans- 
 action usurious, and, under the laws of this state, would for- 
 feit all interest upon said loan — and this would be so, even 
 though the parties called the excess so paid, or agreed to be 
 paid, a present or a bonus from the defendant to the plaintiff, 
 or commissions paid to the plaintiff" as an inducement to him 
 to make the loan. 
 
 § 6. Contract Must be Proved as Pleaded. — The court in- 
 structs the jury, that the defense of usury, under our prac- 
 tice, must be specially pleaded, and strictly proved as pleaded. 
 Under the pleadings in this case, the defendant, in order to
 
 568 rsuKT. 
 
 sustain Lis defense of nsnry, must show, by a preponderance 
 of the evidence, that tliu contract of loaning was, etc., and 
 
 that he paid {or agreed to pay) the sum of S , over and 
 
 above the interest called for by the notes, for the purpose of 
 giving plaintiff more tban {evjit) per cent, interest on the 
 money loaned. And if the jury believe, from the evidence 
 that the agreement was other than that above stated, or that 
 any other sum than tliat above stated was paid {or agreed to 
 he paid) as usury, then the defense of usury is not made out, 
 and the jury should find for the plaintiff for the amount due 
 u])on the note, including interest. Frank vs. Morris^ 57 III.? 
 138. 
 
 SUIT BY ASSIGNEE, ETC. 
 
 § 7. Note Given for Usuiy. — The jury are instructed, that 
 if they believe, from the evidence, that the only consideration 
 for the note sued on was illegal or usurious interest, agreed 
 to be paid by the defendant, as alleged in his plea, then the 
 jury should hud the issues for the defendant; provided, they 
 further believe, from the evidence, that the note was assigned 
 by the payee after it became due, or that the plaintiff had 
 notice of such usurious transaction at the time the note was so 
 assigned to him. 
 
 A note given for usuiious interest is given for an illegal 
 consideration, and is not binding upon the maker, unless it is 
 in the hands of an innocent ])urchaser, who takes it in the 
 regular course of business before due, for value, and without 
 notice of such consideration; and if you believe, from the evi- 
 dence, that the note in question, in this case, was given for 
 usury, and that tlie same was assigned by the payee thereof 
 after it became due, or that the plaintiff had notice of such 
 illegal consideration at the time he purchased the note, then 
 you should find for the defendant. 
 
 § 8. Note Growing out of Aiitecodont Usurious Transactions. — 
 
 The jury are instructed, that the defendant in one of his pleas, 
 to which your attention has been called, has set up the defense 
 of usury ; an i, regarding that defense, the court instructs you, 
 as a matter of law, that if promissory notes are once tainted
 
 TJSUET. 5C9 
 
 witli usury, tlic renewal of them, if tlie usury is added into 
 the new notes, will not free the transaction from usury. The 
 rule in such cases is, that the defense of usury may be in- 
 terposed so long as any portion of the original debt remains 
 unpaid in the hands of the original payee, or of any assignee 
 thereof, if the note is assigned after maturity, or with notice 
 of such defense; and in this case, if the jury believe, from 
 the evidence, that the defendant has proved all the allegations 
 of his plea of usury, as therein stated, by a preponderance of 
 the evidence, then ujion the question of usury the jury should 
 find in favor of the defendant. 2 Parsons onlSTotcs and Bills, 
 420; Gray vs. Brown, 22 Ala., 262; Bridge x^. Huhhard, 15 
 Mass., 96; Wall'er vs. Ba7il\ etc., 3 How., 62; Powell vs. 
 Waters, 8 Cowan, 685; House vs. Davis, 60 111., 362. 
 
 If you be'ieve, from the evidence, that the note in question 
 was given in consideration of a usurious loaning of money, as 
 stated and set forth in the defendant's plea, and also that the 
 note was assigned or indorsed by the payee thereof to the 
 plaintiff after it became due, or that the plaintiff had notice, 
 when the note was assigned to him, that it was given upon 
 such usurious loaning of money, then he can only recover in 
 this case the amount of the money actually loaned, less all 
 payments made by the defendant thereon, whether of princi- 
 pal or interest, if any such yiayments are proved, and you 
 should find your verdict accordingly. 
 
 § 9. Bona Fide Holder. — Although the jury may believe, 
 from the evidence, that the note in question was given upon 
 the usurious loaning of money, as stated and set forth in the 
 defendant's plea filed in this case, still, if the jury further be- 
 lieve, from the evidence, that the note was assigned to the 
 plaintiff before it became due, for a valuable consideration, 
 and that the plaintiff had no notice of such usurious transac- 
 tion at the time of the assignment to him, then he is entitled 
 to recover in this suit the face of said note, princij^al and in- 
 terest, less the ].ayments indorsed thereon, and the jury should 
 find their verdict accordingly.
 
 CHAPTER XLVI. 
 WAKRANTY. 
 
 Sec. 1. What constitutes a warranty. 
 
 2. Intention not material. 
 
 3. Wliat does not amount to a warranty. 
 
 4. Mere praise or boasting does not amount to a warranty. 
 
 5. Warranty must form a part of the contract. 
 
 6. Warranty after the sale. 
 
 7. Sale by sample — Implied warranty. 
 
 8. Purchaser has reasonable opportunity to inspect. 
 
 9. Sale, when not by sample. 
 
 10. Warranted equal to sample. 
 
 SALES FOE FUTURE DELIVERY. 
 
 11. Implied warranty of kind and quality. 
 
 12. Implied warranty. 
 
 13. Implied warranty of manufacturer. 
 
 14. Purchaser may return propTty, or keep it and recoup, etc. 
 
 15. Machine on trial —Should give notice in reasonable time. 
 
 16. To be returned in a reasonable time. 
 
 17. When no implied warranty. 
 
 18. Defense — Fraud and breach of warranty. 
 
 19. War anty of the soundness of a horse. 
 
 20. Defect must exist at the time of warranty. 
 
 21. Visible defects not warranted against. 
 
 22. Artifice to prevent examination by purchaser. 
 28. Burden of proof. 
 
 24. Measure of damages. 
 
 § 1. AVhat Constitutes Warranty. — Tlie court instructs tlie 
 jury, that to constitute a warranty it is not necessary that the 
 word "warranty" or any particular word should be used in 
 the contract; but if the jury believe, from the evidence, that 
 the defendant made use of the expression, etc., and that under 
 the circumstances the plaintiff had reasonable ground to 6U]> 
 pose that a warranty was intended by the defendant, and tliat 
 he did so suppose, and in making the purchase relied upon 
 such supposed warranty, then tlie jury should find that there 
 
 (570)"
 
 WAREANTT. 571 
 
 was a warranty in fact. Benj, on Sales, § 013; Thome vs. 
 Mc VeagJi, 75 111., 81; 1 Pars, on Cont., 462, 403; lid. vs. Stout, 
 17 Wal., 657; Simar vs. Canadmj, 53 K Y., 298; 2 Kent's 
 Com., 485; Moore's Justice, § 120. 
 
 JN^o particular words or form of expression is necessary to 
 create a warranty, nor need the word warranty be nsed. If 
 the representation is positive and relates to a matter of fact, 
 and not to a matter of opinion, and the other party receives 
 the statement as true, and relies npon it in making the trade, 
 snch representation will constitute a warranty. Rohinson vs. 
 Harvey., 82 111., 58; Smithers vs. Biroher, 2 Mo. A pp., 99. 
 
 To constitute an exp^ress warranty, the word warrant need 
 not be used, nor is any precise form of expression necessary to 
 create a warranty ; any affirmation of the quality of an article 
 or thing sold made by the seller, at the time of the sale, for 
 the purpose of assuring the buyer of the truth of the fact 
 affirmed, and to induce him to make the purchase, if so re- 
 ceived and relied upon by the purchaser, will amount to an 
 exj^ress warranty. Warder vs. Bowen, 17 N. W. Hep, 943 ; 
 Patrick vs. Leach, 8 Neb., 531. 
 
 And in this case, if the jury believe, from the evidence, that 
 the note sued on was given by the defendant towards the pur- 
 chase price of, etc., sold to him by the plaintiff, and that upon 
 such sale the plaintiff represented to the defendant that the 
 said {jnachlnc, lohen jproperly used, was capable, etc.,) and that 
 the said defendant, relying upon such representations, pur- 
 cliased the said {^machine) upon the faith of the truth thereof, 
 this, in law, would amount to a warranty that the said {machine) 
 was, etc. 
 
 § 2. Intention not Material. — The jury are instructed, that 
 to constitute a warranty it is not necessary to show that tlie 
 seller intended to cheat or deceive the purchaser in the sale 
 of the property. It is wholly imm.aterial whether or not the 
 seller believed his representations to be true at the time; 
 the purchaser's right to recover for a breach of warranty, in 
 such cases, does not depend upon the seller's intention to de- 
 ceive, but upon the intention to warrant, or upon the fact of 
 a warranty. 
 
 In order to constitute a warranty upon a sale, it is not
 
 ( Ji WARRANTY. 
 
 necessary that tlie representation should have been intended 
 by the vendor as a warranty. If the representation is clear 
 and positive as to the kind or quality of the article, and not 
 a mere expression of opinion, and the purchaser understands 
 it as a warranty, and, relying upon it, purchases the property, 
 then the vendor cannot escape liability by claiming that he 
 did not intend what his language declared or fairly implied. 
 Hawl'ins vs. Peinberton^ 51 N. Y., 198; Sjxirling vs. Marks, 
 86 III, 125. 
 
 § 3. AVhat Does not Amount to a "Warranty. — The jury are 
 instructed, that while it is true, if the seller of personal prop- 
 erty asserts, as a fact, anything regarding its qualities, and 
 concerning which the buyer is ignorant, and the purchaser 
 relies upon the statement in making the purcliase, the asser- 
 tion will amount to a warranty of the fact asserted ; still, it is 
 also true, that if the vend )r merely states an opinion, or gives 
 his judgment upon a matter of which he has no special knowl- 
 edge, and upon which the buyer also might reasonably be ex- 
 pected to have an opinion and to exercise judgment, this is not 
 a warranty. Benj. on Sales, § 5G7; Wdlmaii vs. Wilcox^ 30 
 Me., 170; Chapman vs. 31urch, 19 John., 290; Polhemiis vs. 
 Heiman, 45 Cal., 573; Moore's Justice, § 121. 
 
 The mere expression of an opinion or re])resentations con- 
 cerning the qualities or cajmbilities of an article sold by the 
 vendor, do not, of themselves, constitute a warranty; to amount 
 to a warranty the language used must form a part of the con- 
 tract of sale, and be such as to import oi amount to a promise 
 that the article in question does possess the qualities and capa- 
 bilities mentioned in the alleged promise or contract, and the 
 expressions or representations must be relied upon by the 
 buyer, as a wai-ranty, in making the purchase. Worth vs. Mc- 
 Connell, 42 Mich., 473. 
 
 To constitute a warranty there must not only be an affirma- 
 tion by the seller respecting the quality of the article sold, 
 but tlie affirmation must be made with a view of assurinff the 
 buyer of the truth of the fact asserted, and it must be re- 
 ceived and relied upon by the buyer in making the purchase. 
 
 While, to constitute a warranty, the term warrant need not 
 be used, nor any precise foirn of expression employed, still,
 
 WAiiEAJJTY. 5 < O 
 
 to constitute a binding warranty, there must be an affirmation 
 as to the quality or condition of the thin_<j^ sold, made by the 
 sel'er, at or before the sale, for the purpose of assui'ing- the 
 buyer of the truth of the fact asserted, and of inducing him 
 to make the i)urchase. and it must be so received and relied 
 upon by tlie pureh.iser. Banj. on Sales, § 613; Ilatolchis vs. 
 Berry, 5 Gilm., 36; Bishop vs. Small, 63 Me., 12; Byrne vs,. 
 Jansen, 50 Cal., 624; Humphreys vs. Comline, 8 Blackf.,5()8; 
 Ilahn vs. Voolittle, IS Wis., 197; Ilawhhis vs. Peinherton^ 
 6l*N. Y., 198. 
 
 § 4. Mere Praise or Boasthig not a Warranty. — The jury are 
 instructed, that mere praise or boasting indulged in by the 
 owner of })ersonal property, when offering it for sale, does not 
 amount to a warranty of its quality or condition, if such praise 
 or boastful remarks are but expressions of opinion or judg- 
 ment concerning the property; provided, the purchaser has 
 an opportunity to examine the property at the time, and does 
 or does not do so, and w-here no artilice is used to prevent him 
 making an examination. Byrne vs. Jaiisen, 50 Cal., 624. 
 
 When parties are negotiating a trade for property which 
 there is an opj)ortunity for examining, the owner of the prop- 
 erty has a right to extol the value or desirable qualities of 
 his property to the highest point which the credulity of the 
 purchaser will bear, if he confines himself to mere expression 
 of opinion or judgment. Such boastful assertions or highly 
 exaggerated descriptions do not amount to a warranty; in such 
 cases tlie parties are upon equal ground, and the purchaser 
 must exercise his own judgment and abide the consequences. 
 
 § 5. Warranty Must Form Part of the Contract. — The court 
 instructs the jury, that to constitute a valid and binding war- 
 ranty, the agreement to warrant must enter into and form a 
 part of the contract of sale. If the agreement to warrant 
 the article is not made at the time the trade is consummated 
 or closed up, then it must be made during the negotiation 
 between the parties, and so shortly before the sale and under 
 such circumstances that the purchaser was reasonably justified 
 in regarding it as continuing until the bargain was finished. 
 and as forming one of the terms of the contract of sale. Benj.
 
 574: • WARKANTr. 
 
 on Sales, § 611; Vuic3?it vs. Lelcmd, 100 Mass., 432; WiJmot 
 vs. Ilicrd, 11 Wead., 584; Cougar vs. Chamherlain, 14 Wis., 
 258; Summers y^.Yauglm^ 35 lud., 323; Brya)it w&. Crosby^ 
 40 Me., 9. 
 
 § 6. Warranty after the Sale. — Tliat a warranty made after 
 tlie contract of sale is concluded, if proved, is not binding, un- 
 less it is made as a new and separate contract, and upon some 
 new consideration passing between the parties; and though 
 the jury may believe, that upon the occasion in question, ttie 
 plaintiff said to the defendant {the horse is sound and true, 
 and all right), still, if the jury further believe, from the evi- 
 dence, that this was not said until after the trade was com- 
 pleted, this alone would not constitute a binding warranty. 
 Toioell vs. Gatev}ood, 2 Scam., 22. 
 
 In order to make out the defense of warranty, and a breach 
 thereof, it must appear, from the evidence, that the represen- 
 tations relied upon, if any were made, were made before the 
 defendant accepted the proj crty in question, under the con- 
 tract of sale; and unless the jury believe, from the evidence, 
 that the alleged warranty was made before the contract of sale 
 was completed and the property delivered to the defendant, 
 and accepted by him, as in compliance with the contract, then 
 the jury should hnd for tlie plaintiff upon the question of 
 warranty; provided, you find, from the evidence, that the 
 property was so delivered and accepted by the defendant. 
 
 In order to constitute a warranty there must not only be an 
 affirmation by the seller, respecting the quality or condition 
 of the article sold, but it must be made with the view of 
 assuring the buyer of the truth of the fact asserted, and must 
 be relied upon by him, and be one of the inducements to him 
 to purchase the goods. 
 
 § 7. Sale by Sample — Implied Warranty. — The jury are in- 
 structed, that when goods are offered for sale under such cir- 
 cumstances that there is no reasonable opportunity to inspect 
 them by the purchaser, and the vendor exhibits what he rep- 
 resents to be a sample of the goods so offered, and a sale is 
 thereby effected, tlien the vendor impliedly warrants the qual- 
 ity of the bulk of the goods so sold to be equal to that of the
 
 WARKANTY. 575 
 
 sample. Bonj. on Sales, § 648; Beirne vs. Dord^ 1 SoldeDj 
 95; S. C, 2 Sandf. Sup. Ct., 89; Bradford vs. Manbij^V6 
 Mass., 139; Farmer vs. Gray, 20 ^". W. Rep., 276. 
 
 If the jury believe, from the e\'idence, that there was a 
 contract between the parties, by which it was a^^reed that the 
 
 plaintiff should sell and deliver cases of, etc., and that 
 
 the plaintitf had wnth him what he represented as a sample of 
 the goods to be delivered, then there was an implied warranty 
 that the bulk of the articles so contracted to be delivered 
 sh'ould be equal in value to the sample so shown ; and if the 
 goods forwarded to the defendant were not equal in quality 
 to the sample, he was under no obligation to keep them. 
 
 § 8. Purchaser has Reasonable Opportunity to Inspect, etc. — 
 
 That it is an implied condition in all sales by sample, that the 
 buyer shall have a fair opportunity of examining the bulk of 
 the articles sold, and of comparing them with the sample be- 
 fore determining whether he will accept them or not. Benj. 
 on Sales, § 594, 6-48; Lorymer vs. Smithy 1 B. & C, 1. 
 
 § 9. Sale, AVlienNot by Sample. — Although the jwvy may be- 
 lieve, from the evidence, tliat, at the time of the alleged sale, 
 the plaintiff had with him, and showed to the defendant, what 
 he represented to be a fair sample of the goods in question, 
 still, if the jury further believe, from the evidence, that the 
 defendant had an opportunity to inspect the goods in question, 
 «,nd did inspect them, as far as lie desired to do so, and refused 
 to purchase by the sample shown him, then there was no im- 
 plied contract on the part of the plaintiff that the goods sold 
 should equal the sample in quality or value. 
 
 § 10. Warranted Equal to Sample. — If the Jury believe, from 
 the evidence, that the note in suit in this case w^as given by 
 the defendant for a part of the purchase price of {a macfdne), 
 sold by the plaintiff to the defendant, then, if the jury further 
 believe, from the evidence, that the plaintiff, as a part of the 
 contract of sale, warranted ifhe machine) so sold to be similar 
 Inmake and equally as good as a sample (maGhine) then shown to 
 the defendant, if you find, from the evidence, that such sample 
 was shown, and if you also find, from the evidence, that the
 
 676 TTAEEAirrT. 
 
 {machine) sold was not Riinilar in construction or equal Iv as 
 good as the sample, and that the defendant is damaged by 
 reason tliereof, then the jury should deduct the amount of 
 such damage from the amount due on the note, and render a 
 verdict in favor of the plaintiff for the balance; provided, 
 you find, from the evidence, that such damage is less than the 
 amount due on the note; and if you find the amount due on 
 the note to be less than the amount of such damage, then you 
 should deduct the amount due on the note from the amount 
 of such damage, and return a verdict in favor of the defend- 
 ant for the balance so found. 
 
 SALES FOR FUTL'KE DELIVERY. 
 
 § 11. Implied AVarranty of Kind and Quality. — The Jury are 
 instructed, that in a sale of goods for future delivery by name 
 or description (as, for instance, wheat or No. 2 corn), if the 
 property is not inspected by the buyer, then tliei'e is an 
 implied warranty that the goods shall answer the description 
 given, and be salable and merchantable; and if pro])erty is 
 tendered under such a contract, which does not answer such 
 implied warranty, the jmrchaser is not bound to accept it. 
 Benj. on Sales, § G56; Merriam \Q.Jfield, 24 Wis., 640; 3Ic- 
 Clung vs. Kelley, 21 la., 50S. 
 
 The law is, that under a contract to deliver a certain number 
 of bushels of wdieat, there is an implied warranty that the 
 wheat is to be of a fair, merchantable quality; provided, the 
 buyer has had no opportunity to inspect it; and if the jury 
 believe, from the evidence, that the wheat which plaintiff 
 Oifei-ed to deliver to defendant was not of a fair, merchantable 
 quality, then the defendant was under no obligation to accept 
 the wheat, even though it was tendered. Moore's Justice, 
 § 123. 
 
 § 12. Implied "Warranty. — The court instructs the jury, that 
 in the case of a sale of personal pro]:)erty, where there is no 
 oi)])ortunity for the purchaser to inspect it, there is an implied 
 warranty that the property is of a fair, merchantable quality, 
 in good condition, and fit for the use to which it is usually 
 applied. Merriam vs. Fleld^ 39 "Wis., 578; Van Wyck vs. 
 Allen, 69 N. Y., 61.
 
 WARRANTY. 677 
 
 Tliougli tlie jury may believe, from the evidence, tliat tlio 
 parties entered into a contract by which the ])laintilf a<>;reed to 
 deliver, and the defendant agreed to take brick, as alleged in 
 the declaration in this case, still, if the jury further believe, 
 from the evidence, that, as a part of the same contract, plaint- 
 iff warranted and agreed that the brick so to be delivered 
 should be the same in quality, or as good as those used in the 
 construction of, etc.; and if the jury further believe, from the 
 evidence, that the brick claimed to have been tendered by the 
 plaintiff were not as good in quality as those used in the con. 
 struction of, etc., then the defendant was not bound to accept 
 nor pay for the bricks so tendered. 
 
 § 13. Implied Warranty of Manufacturer. — The court instructs 
 the jury, that every manufacturer of machinery impliedly 
 contracts with the person for whom an article of machinery is 
 made, in the absence of a special agreement to the contrary, 
 that the article manufactured shall be reasonably fit for the 
 purpose for which it is made, and if the article is not so fit, 
 then the manufacturer is liable for the damage occasioned by 
 such nntitness. 
 
 Where a manufacturer sells a commodity, by a well known 
 market description, and the commodity is not present at the 
 time and place of trade, and is not seen or examined by the 
 purchaser, the law will imply a warranty, on the part of the 
 seller, that the commodity is of a fair, merchantable quality, 
 corresponding to the description under which it is sold. And 
 the same rule applies where the seller holds himself out as 
 the manufacturer of the commodity sold, or sells under cir- 
 cumstances reasonably warranting the purchaser in believing 
 him to be selling as a manufacturer. Chi. P'lc'g c& Prov. 
 Go. vs. Tilton^ 87 111., 547; Robinson Machine Worlds vs. 
 Chandler^ 56 Ind., 575; Thomas vs. Slinpsori, 80 N. C, 4. 
 
 If the jury believe, from the evidence, that the defendant 
 purchased the machine in question of the plaintiff, and that 
 the plaintiff was the manufacturer of said machine, or repre- 
 sented himself as such manufacturer, and that the defendant 
 did not have a reasonable opportunity to inspect the machine 
 before purchasing it, then the law implies a warranty, on the 
 part of the plaintiff, that the machine was one reasonably fit 
 37
 
 578 WARRAKTT. 
 
 and suitable for the purpose for which it was sold to the de- 
 fendant. And if the jury f urtlier believe, from the evidence, 
 that the machine, at the time it was sold, was not reasonably 
 fit and suitable for such purpose, and that the defendant, by 
 reason thereof, has sustained damage to an amount equal to 
 or greater than the amount of the note sued on, then the jury 
 should tind for the defendant; provided, you further believe, 
 from the evidence, that the note in question was given for a 
 part of the purchase price of the machine. Benj. on Sales, 
 § 657; Pars, on Cont., 467; 3lann vs. Enerston, 32 Ind., 355; 
 Bird vs. Mayer, 8 Wis., 362. 
 
 If the jury believe, from the evidence, that the plaintiff sold 
 the machine in question to the defendant, and that at the time 
 of such sale the plaintiff made a verbal warranty that, etc., and 
 
 agreed to take back the machine, at any time within 
 
 months from the date of such sale, and return the money paid 
 therefor, in case the warranty should fail, and if the jury fur- 
 ther believe, from the evidence, that said machine did not 
 meet the requirements of such warranty, and that the defend- 
 ant, within the said months, notified the plaintiff' of such 
 
 failure, and to come and remedy the defect or take the ma- 
 chine away, and that the plaintiff did neither, then the prop- 
 erty still belongs to the plaintiff, and he cannot recover in this 
 suit for the price of the machine. 
 
 § 14. Purchaser may Return the Property or Recoup, etc. — The 
 rule of law is, in the case of a sale of personal property with 
 a warranty, either expressed or implied, in the absence of fraud 
 on the part of the seller, that if the thing purchased does not 
 answer the terms of the warranty the purchaser may return, 
 or offer to return, the lu-operty within a reasonable time, and 
 thereby defeat the right on the part of the vendor to recover 
 any part of the ])urchase money; or the purchaser may keep 
 the property, and, when sued for the price, may set up the 
 breach of warranty in recou])ment of the plaintiff's damages. 
 But, in such case, the vendor may recover the value of the 
 thing sold, if it has any value for any purpose, notwithstand- 
 ing its unfitness for the use for which it was sold. Wander 
 and another vs. Fisher, 48 Wis., 338.
 
 WAEKANTT. 579 
 
 § 15. Macliine on Trial — Should Give Notice in "Reasonable Time. 
 
 — Where a party sells {a reaping/ and moivhig machijie), with 
 an agreement, at the time, that if it should not prove to be a 
 good machine, he will take it back or make it all right, he is 
 under no obligation to take back the machine or make it all 
 right, unless called upon to do so within a reasonable time 
 after the sale. 
 
 § 16. To be Returned in Reasonable Time. — If the jury be- 
 lieve, from the evidence, that the agreement between the par- 
 ties was that defendant was not to keep the machine unless it 
 suited him, and that he was to have the privilege of returning 
 it if it displeased him, then, if he was not satisfied with the 
 machine, he was bound to return it within a reasonable time, 
 and if he did not do so, lie Avill be held to have elected to 
 keep the machine, and pay for it at the agreed price. 
 
 § 17. AVhen no Implied Warranty. — The court instructs tlie 
 jury, that where a person buys an article of personal property, 
 and, before purchasing it, inspects the article, or has a reasonable 
 opportunity to inspect it, and fails to do so, there is no implied 
 warranty, on the part of the seller, as to the quality or value 
 of the article purchased, so far as these might reasonably 
 have been discovered by such inspection. 
 
 Where a person purchases an article of per.-onal property, 
 and at the time of the purchase the article is present and sub- 
 ject to reasonable inspection and examination of the buyer, as 
 to its quality or value, then the purchaser takes the property 
 at his own risk, so far as regards its workmanship and ma- 
 terial, unless the seller expressly warrants the character of the 
 same, or there is some concealed defect or fraud practiced. 
 
 If the jury believe, from the evidence, that the defendant 
 purchased of the plaintiff the apples in question, at an agreed 
 price, and that, at the time of such purchase, the defendant 
 actually inspected the apples, and knew their condition, then 
 the defendant is liable to the plaintiff for the full price so 
 agreed upon, whatever may have been the actual condition of 
 the apples at the time of the purchase. 
 
 If you believe, from the evidence, that the defendant pur- 
 chased of the plaintiff the apples in question, at an agreed
 
 580 WAEEANTT. 
 
 price, and, at the time of such pm-cliase, actually inspected a 
 part of the apples, and might have inspected the remainder 
 if he had wished to do so, and that the bulk of the apples 
 were of like quality with those which he did inspect, then the 
 defendant is liable to the plaintiff for the full price so agreed 
 upon, whatever may have been the actual condition of the 
 apples at the time of the purchase. 
 
 § 18. Defense — Fraud and Breach of Warranty. — The court 
 instructs the jury, that where a party purchases an article of 
 personal property, and at the time of the purchase the article 
 is present and subject to his reasonable examination, as to its 
 construction, quality and value, then the purchaser takes the 
 property at his own risk, so far as regards construction, work- 
 manship, material and value, unless the seller expressly war- 
 rants the character of the article in respect to these particu- 
 lars, or unless he practices some trick, fraud or deceit upon 
 the purchaser. 
 
 § 19. AVarranty of the Soundness of a Horse. — If the jury 
 believe, from the evidence, that ihe plaintiff sold the horse in 
 question to the defendant, and that just before or at the time 
 of such sale, the plaintiff made any declaration or affirmation 
 to the defendant regarding the condition of the horse, to the 
 effect (" The horse is perfectly sound, well broke and true to 
 work"), for the purpose of assuring the defendant of the 
 truth of that statement, and for the purpose of inducing him 
 to buy the horse, and if the jury further believe, from the evi- 
 dence, that the defendant did believe such statement to be true, 
 and, relying upon the truth thereof, bought the horse in ques- 
 tion, this, in law, would constitute a warranty (" that the horse 
 was perfectly sound, well broke and true to work"); and if 
 the jury further believe, from the evidence, that such state- 
 ment was not true at the time, but, on the contrary, that said 
 horse was unsound or not well broken, etc., and that by reason 
 thereof the defendant has been damaged, this would constitute 
 a breach of the warranty, upon which the plaintiff would be 
 liable for the amount of such damages. Van Horsen vs. 
 Cameron^ 54 Mich., 609. 
 
 If you believe, from the evidence, that during the negotia-
 
 ■WAKKANTT. 581 
 
 tlon between the parties which led to the trade in question, 
 the plaintiff said to the defendant ("The horse is sound and 
 true, and I would not be afraid to warrant him, but you know 
 my warranty would not amount to anything"), and did not 
 afterwards take back or qualify this language, this would 
 amount to a binding warranty that the horse was sound and 
 true at the time; provided, the defendant relied upon the 
 truth of such statement, and purchased on the strength of it. 
 Cook vs. Mosley, 13 Wend., 277. 
 
 If the jury believe, from tlie evidence, that just before and 
 at the time, etc., the plaintiff said to the defendant, I am no 
 judge, etc., and the defendant replied, etc., this would amount 
 to a warranty that the horse's eyes were sound, provided the 
 jury further believe, from the evidence, that the defendant 
 intended to convey the idea that the horse was sound and that 
 the plaintiff so understood him and relied upon that declara- 
 tion in making the purchase. Patrick vs. Leach, 8 Keb., 530. 
 
 § 20. Defect Must Exist at Time of Warranty. — That a war- 
 ranty made at the time of a sale of a horse, that he is sound 
 and free from vice, is not a warranty that the horse will re- 
 main sound or free from vice. And if you believe, from the 
 evidence, that the horse in question was sound and free from 
 vice at the time of the sale, then, although the jury may 
 further believe, from the evidence, that the horse afterwards 
 became diseased, unsound or vicious, still, such after-acquired 
 disease or vice would be no defense to an action brought to 
 recover on a promissory note given for the purchase price of 
 the horse. 
 
 § 21. Visible Defects not Warranted against. — The court in- 
 structs the jury, that although they may believe, from the 
 evidence, that the plaintiff, at the time of the sale, did say he 
 would warrant the said horse to be perfectly sound, still, if 
 they further believe, from the evidence, that the defendant 
 had all reasonable opportunities, tlien and there, to inspect 
 and examine the said horse, and if you further believe, from 
 the evidence, that there were no defects or blemishes about 
 the said horse's {eyes) which were not perfectly visible to an 
 ordinarily skillful and cautious observer, then such blemishes 
 or defects would not be covered by said warranty.
 
 582 WAEKANTY. 
 
 A general warranty of the soundness or quality of an 
 article of personal property sold, does not include or cover 
 defects or blemishes which are known to the purchaser, or 
 which are open and visible to a person of ordinary skill and 
 intelligence, at the time of the sale. To cover such defects, 
 they must be expressly named or mentioned in some way, 
 and warranted against, unless some art is used by the vendor 
 to conceal, and he does conceal, such defects. Benj. on 
 Sales, § 616; Brown, vs. Bigeloio, 10 Allen, 242; Mulvaney 
 vs. Bosenhurger, 18 Penn. St., 203 ; YandewalJcer vs. Osmer, 
 65 Barb., 556. 
 
 § 22. Artifice to Prevent Examination by Purchaser. — The 
 
 jury are instructed, that the general rule that a warranty does 
 not protect against defects that are plain and obvious to the 
 senses of the purchaser, and which it required no special skill 
 to detect, has no application if the vendor uses any art or trick 
 to conceal the delect, and does conceal it, or if he uses any arti- 
 fice or trick to withdraw the attention of the purchaser away 
 from the defect, so as to prevent him noticing what he might 
 otherwise have noticed. Chadsey vs. Green, 24 Conn., 562; 
 Brown vs. Bigeluio^ 10 Allen, 242. 
 
 If the jury believe, from the evidence, that the plaintiff 
 warranted the horse sold to be sound, at tlie time of the sale, 
 and that, at that time, the eyes of the horse, or either of them, 
 was so affected that the sight was impaired, and that the de- 
 fect was of such a character that it could not be discovered by 
 a person of ordinar3' care and skill in such matters, and was 
 not discovered by the defendant, or, if the jury believe, from 
 the evidence, that at the time in question, the plaintiff, by 
 words or conduct, intentionally threw the defendant off his 
 guard, so that he did not examine the horse's eyes as closely 
 as he otherwise would, and, for that reason, did not discover 
 the said defects, then the warranty of the plaintiff would 
 cover such defects. 
 
 § 23. Burden of Proof. — The court instructs the jury, that 
 in so far as the defendant relies upon a warranty of the qual- 
 ity of the pro])erty sold and a breach of the same, the burden 
 of p]-oving the warranty is upon the defendant; and, unless
 
 WARRANTY. 583 
 
 he lias proved both the warranty and the breach alleged, by 
 a preponderance of evidence, he will not be entitled to any 
 benefit therefrom in this suit Biiriis vs. Nichols, 89 111., 
 480. 
 
 To entitle the plaintiff to recover, in this suit, it is not only 
 necessary for the jury to find, from the evidence, that the 
 plaintiff warranted the animal in question to be sound, at the 
 time of the sale, but it must further appear, from the evi- 
 dence, that tlie animal was unsound at that time; and, unless 
 both these facts appear, from the evidence, the jury should 
 find for the plaintiff, so far as regards the alleged warranty. 
 Bowman vs. Clemmer, 50 Ind., 10. 
 
 In a suit to recover the price agreed to be paid for goods 
 sold and delivered, if the defendant relies upon a warranty and 
 breach, he must show the same by a preponderance of testi- 
 mony, in order to make the defense available. Maltman vs. 
 Williamson, 69 111., 423. 
 
 In this case it is incnimbent on the defendant to establish, by 
 a prejionderance of the evidence, the warranty alleged in the 
 declaration, and also a breach of such warranty as therein 
 stated; and if, after carefully considering all the evidence in 
 the case, 3^ou find the weight of the evidence is with the plaint- 
 iff upon either of these points, or is equal in weight with that 
 of the defendant, regarding either the warranty or the breach 
 of it, then, as a matter of law, you should find in favor of the 
 plaintiff upon the question of warranty. 
 
 § 24. Measure of Damages. — The jury are instructed, that 
 the measure of damages for a breach of warranty of the sound- 
 ness or quality of an article of personal property is the differ- 
 ence between the actual value of the defective article at the 
 time of the sale and what it would have been worth if it had 
 been as warranted. Ferguson vs. Hosier, 58 Ind., 438 ; Ault- 
 man vs. Reiherlngton, 42 Wis., 622. 
 
 If you believe, from the evidence, that the plaintiff sold 
 goods to the defendant, and expressly warranted them, or at 
 the time of the contract used any words which were intended 
 to lead, and which did, in fact, lead the defendant to believe 
 that plaintiff intended to warrant the quality of said goods, in 
 manner and form as charged in the declaration, and that the
 
 584 "WAKEAKXr. 
 
 goods so sold did not fill the warranty, and for that reason 
 were not as good in quality as those contracted to be sold to 
 the defendant, then the defendant is entitled to a reduction 
 from the plaintiff's claim to an amount equal to the difference 
 between the actual value of the goods and what they would 
 have been worth if they had answered the warranty.
 
 CHAPTER XLVIL 
 WATERCOURSES. 
 
 Sec. 1. Watercourse defined. 
 
 2. No right to divert ancient watercourse. 
 
 3. Owner of soil, owner of surface and subterranean water. 
 
 4. No rig-ht to obstruct the natural flow of surface water. 
 
 5. Prescriptive right to obstruct the flow of water. 
 
 § 1. Watercoui'se Defined. — To constitute a waterconrse 
 there must be a stream of water, including banks, bed and 
 water. It is not necessary to prove that the water flows con- 
 tinuously. It may be dry at certain seasons of the year and 
 yet be called a stream of water, but it must, at some period of 
 the year, be a stream of water ilowing in a well defined chan- 
 nel. SehUchter vs. Philips, 67 Ind., 201 ; Peck vs. Herring- 
 ton, 109 III., 611. 
 
 A stream of water flowing over a man's land is a current of 
 water flowing in one line or course, between banks or sides, in 
 a certain direction. It may be dry in a dry time, but it must 
 Jiave a well detined existence as a stream, when there is water 
 to run in it. 
 
 Occasional, sudden and temporary outbursts of water which 
 in times of heavy showers and freshets fill up low land or 
 marshy places and ravines, and overflow and inundate adjoining 
 lands, are not deemed watercourses, unless such water flows 
 ofE through a well defined channel which it has worn for itself. 
 
 § 2. No Right to Divert Ancient Watercourse. — If the jury 
 believe, from the evidence, that the nature of the country was 
 such that after heavy rains or the melting of snows it naturally 
 and necessarily collected together large quantities of water on 
 defendant's land, and that such water was regularly discharged 
 through a well defined channel which the force of the water had 
 made for itself and that the water had been accustomed to flow 
 through that channel from time immemorial, then such chan- 
 
 (585)
 
 686 WATERCOUESES. 
 
 nel is an ancient waterconrse, and the defendant would have 
 no right to change the direction of such watercourse even on 
 his own land, so as to discharge the water onto the plaintiff's 
 land at a point different from what it had been accustomed to 
 flow. ScMichter vs. Philips, 67 Ind., 201. 
 
 The owner of land through which a watercourse passes, has 
 a right to receive the water, when the water in its natural 
 cliannel enters his land, and to use it while it is passing over 
 or through his land, but he must restore the water to its orig- 
 inal natural channel whenever it leaves his land, to enter that 
 of an adjoining owner. Angell on Watercourses, § 108. 
 
 § 3. The Owner of the Soil is the Owner of the Surface and Subter- 
 ranean Water. — The court instructs the jury, as a matter of law, 
 that water that percolates through the soil, beneath the sur- 
 face, with a known channel — water which temporarily flows 
 upon, or over the surface from falling rains or melting snows, 
 without a channel, but simply as the natural and artificial ele- 
 vations and depressions of the surface may guide it, is re- 
 garded as a part of the land and belongs to the owner thereof, 
 and he makes such use of the water as he sees flt, while it 
 remains on his land. Taylor vs. J^tckas, 54 Ind., 167. 
 
 § 4. No Right to Obstruct the Natural Flow of Surface Water. 
 
 — If the jury believe, from the evidence, that the plaintiff is 
 the owner (or occnpant) of the premises described in the dec- 
 laration, and that said premises are higher ground than the 
 adjoining premises occupied by the defendant, and that the 
 natural flow of the water is from the premises of the plaint- 
 iff towards and onto the premises occupied by defendant, then 
 the defendant is bound to receive upon his land, all the water 
 which thus naturally flows from plaintiff's land onto his, and 
 the defendant has no right to obstruct in any way, such nat- 
 ural flow of the water to the injury of the plaintiff. And if 
 the jury further believe, from the evidence, that the defend- 
 ant did so obstruct the natural flow of the water, from the 
 plaintiff's land onto his own, to the injury of the plaintiff, then 
 the plaintiff has a right to recover such an amount as dam- 
 ages, as the jury believe, from the evidence, the plaintiff has 
 sustained.
 
 WATERCOURSES. 587 
 
 The jury are instructod, that the phaintiff has no right, by 
 ditches or other artificial means, to divert the water from his 
 own land upon the land of the defendant. lie has only the 
 right to the natural flow of the water from his own land onto 
 the land adjoining. 
 
 If the jury believe, from the evidence, that, prior to the acts 
 complained of, the plaintiff, by the construction of the ditch 
 or ditches, or by an artificial embankment, had collected 
 together the surface water upon his own land (or had dug out 
 springs), and thereby caused such water to flow in unnatural 
 quantities upon the premises of defendant, or was thrown 
 back uj^on defendant's premises in a different manner from 
 what the same would naturally have flowed, and to his 
 injury, then the defendant had a right to protect his premises 
 from such unnatural flow of water by, etc. 
 
 If the jury believe, from the evidence, that the water from 
 plaintiff's land did not naturally drain from his land by a 
 flowing upon the defendant's land, but that he, by drains or 
 other artificial means, attempted to, and did, drain the water 
 from his own land, and caused it to flow in unnatural quanti- 
 ties upon defendant's land, and that defendant only stopped 
 such uimatural flow by stopping the lower end of snch 
 ditches or other means of draining such lands, then he was 
 justified in so doing, and is not liable for such acts, provided 
 the jury believe, from the evidence, that such drains oi- 
 ditches had not existed for twenty years before tlie acts com- 
 plained of. 
 
 § 5. Prescriptive Right to Obstruct Flow of Water. — If the 
 
 jury believe, from the evidence, that, more than twenty years 
 before the commencement of this suit, the owners of the prem- 
 ises in question, and now occupied by the plaintiff and the de- 
 fendant, respectively, tlirew up an embankment of earth upon 
 what was then understood and agreed to be the line between 
 them, and that the defendant and his grantors have ever since 
 maintained such embankment, not higher than it was origi- 
 nally built, but sufficiently high to prevent the flow of water 
 from plaintiff's premises onto defendant's land, except in times 
 of great freshets and high water, then the defendant has ac- 
 quired, by prescription, the right to maintain and continue such
 
 588 WATEKCOUKSES. 
 
 embankment; and if the jury further believe, from the evi- 
 dence, that after said enibankment had been thus maintained 
 for twenty years or more, the plaintiff cut channels through 
 the same for the purpose of draining his own land onto de- 
 fendant's land, then the defendant had a right to till up such 
 channels.
 
 CHAPTER XLVIII. 
 
 CONTESTING WILLS. 
 
 CAPACITY IN GENERAL, ETC. 
 
 Sec. 1. The right to make a will. 
 
 2. Helatives have no legal or natural rights. 
 
 3. The essentials of a will. 
 
 4. The jury must take the law from the court. 
 
 5. Witnessing a will — What is sufficient. 
 
 INSANITY UNSOUND MIND. 
 
 6. The issue to be tried. 
 
 7. Burden of proof. 
 
 8. Sound and disposing mmd and memory. 
 
 9. The test of testamentary capacity. 
 
 10. Testamentary capacity defined. 
 
 11. Partial insanity — Monomania. 
 
 12. Delusi jn regarding wife or child'd property. 
 18. Sanity presumed. 
 
 14. Insanity — Rule for determining. » 
 
 15. Settled insanity presumed to continue. 
 
 16. Intoxication. 
 
 17. Drunkenness — When insanity. 
 
 18. Intoxication may produce insanity. 
 
 19. Failure of memory. 
 
 20. Old age does not necessarily incapacitate. 
 
 21. Previously expressed purpose. 
 
 22. Will may be referred to as showing mental condition. 
 
 23. Expert testimony. 
 
 24. Testimony of subscribing witness. 
 
 UNDUE INFLUENCE. 
 
 25. Issue to be tried — Burden of proof. 
 
 26. What must appear. 
 
 27. The influence must afPect the will, etc. 
 
 28. It must destroy the free agency. 
 
 29. Legitimate influence. 
 
 30. Legitimate advice or persuasion. 
 
 testator's MOTIVES, ETC. 
 
 31. Testator's motives cannot be questioned. 
 
 32. Motives may be inquired into, when. 
 
 33. Unlawful cohabitation with legatee, etc. 
 84. Testator influenced by groundless fears. 
 35. Provisions of the will may be considered. 
 
 (589)
 
 590 COJS^TESTING WILLS. 
 
 CONTESTING ON APPEAL FROM PROBATE COURT — INSANITY. 
 Sec. 86. Model instructions — Eraser vs. Jennison, 42 Mich., 206. 
 
 CONTESTING IN CHANCERY INSANITY. 
 
 37. Model instructions — American Bible Soc. vs. Price, 115 111., 623. 
 
 § 1. The Right to Make a Will. — The court instructs the 
 jury, as a matter of liiAv, that every person of {comjpetent age, 
 as fixed hy statute) and of sound mind, has a right to make a 
 disposition of his estate by will, and to so devise his property 
 as to divest those who would otherwise inherit it as his legal 
 heirs, of their interest therein. Generally, the object of a last 
 will and testament is to enable the testator to devise his prop- 
 erty as to him may seem best. 
 
 § 2. Relatives Have no Legal or Natural Rights, etc. — The 
 jury are instructed, that no next of kin, no matter how near 
 they may be, can be said to have any legal or natural rights 
 to their kinsman's estate, which can be asserted against the 
 wnl! of said kinsman. The law of the land has placed every 
 person's estate wholly under the control of the owner, subject 
 to such final disposition of it as he may choose to make by his 
 last will and testament, limited only by the statutory rights of 
 his widow. 
 
 Children have no natural or legal rights to the estate of 
 their father which can be asserted against his disposition of it 
 by will. 
 
 A11 parents have a right to judge as to who are the proper 
 objects of their bounty; and, if free from undue influence 
 and insane delusions, and of sufficient mental capacity, may 
 give their property to any ]ierson whomsoever. A child has 
 no legal or natural right to the estate of its father which 
 courts or juries can recognize against the will of the father. 
 J^race vs. BIarA\ 17 N". E. Eep., GQ. 
 
 A man nia^^ change his will as often as it pleases him to do 
 so, and the fact that he has changed it is of itself no evidence 
 against the validity of the last will. The fact that the testa- 
 tor had executed previous wills, different in their character 
 from the one last executed, if shown by the evidence, is im- 
 material in this case. 
 
 The jury have nothing to do with the fairness or unfair-
 
 CONTESTING WILLS. 591 
 
 n3ss or the equity or inequity of the testamentary disposi- 
 tions of the property; tlie only question for them to try is 
 this: Is the writing offered the will of the deceased? And 
 your verdict must be either that it is his will or that it is not. 
 
 § 3. Essentials of a ^Ym—{See Different Siaiuies).— The 
 court instructs the jury, that to entitle a will to probate four 
 things must concur: 
 
 yirst. It must be in writing and signed by the testator, or 
 in his presence by some one under his direction. 
 
 Second. It must be attested by two or more credible wit- 
 nesses. 
 
 Third. Two of the attesting witnesses must testify that 
 they saw the testator sign the will in their presence, or that 
 he acknowledged the same to be his act and deed. 
 
 Fourth. The two witnesses must declare on oath, or affirma- 
 tion, that they believe the testator to have been of sound 
 mind and memoi-y at the time of signing or acknowledging the 
 same. 
 
 § 4. The Jury Should Take the Law from the Court. — The 
 
 court instructs the jury, that it is their sworn duty, as jurors, 
 to accept the law of tliis case from the court; and the jury 
 are not permitted to determine what the law is according to 
 their own unaided judgments, but, in arriving at a conclusion, 
 they mnst determine the question of facts from the evidence, 
 and be governed by the instruction of the court as to the law. 
 
 § 5. Witnessing AVill — What is Sufficient — {See the Different 
 Statutes). — The court instructs the jury, that if they believe, 
 from the evidence (given by the subscribing witnesses), that 
 the deceased signed the papei-, purporting to be his will, in 
 the presence of one of the subscribing witnesses, and acknowl- 
 edged it to be his act and deed to the other, and tliat they 
 subscribed the same as such witnesses, at his request and in his 
 presence, and if the jury further believe, that the deceased was 
 of sound mind and memory at the time, then this is a compli- 
 ance with tlie law, and is ^riraa facie evidence of the due 
 execution of tlie will. 
 
 The court instructs the jury, that it is not necessary that
 
 592 CONTESTING M'lLLS. 
 
 the subscribing witnesses should know at the time of attest- 
 ing it that it is the will, or that the j should know the contents 
 of it. 
 
 If the witnesses to a will, while signing their names thereto, 
 as such witnesses, are in such a place that the testator can see 
 them, if he chooses to, they are to be regarded as in his pres- 
 ence, within the meaning of the statute, and it is not neces. 
 sary that they shall be in the same room with the testator, or 
 that he shall actually see them sign. Ambre vs. Weishaar^ 
 74 111., 109. 
 
 INSANITY — UNSOUND MIND. 
 
 § 6. Issue to be Tried. — The jury are instructed, that the 
 only question in this case for them to try is this: Is the writ- 
 ing offered the will of A. B., deceased ? And your verdict will 
 be, either that it is his will, or that it is not. 
 
 The question to be passed upon by the jury is this: "Was 
 the mind and memory of the deceased, at the time of the mak- 
 ing of the alleged will, sutHciently sound to enable him to 
 know and understand the business in which he was engaged 
 at the time he executed the will, judging his competence of 
 mind by the nature of the act to be done, and from a consider- 
 ation of all the circumstances in the case. Trisk vs. Newell^ 
 62 111., 196. 
 
 That, in the examination of wills, the sanity or insanity of 
 the testator is always a question of fact, to be decided by the 
 jury upon the whole evidence, according to the plain princi- 
 ples of common sense. 
 
 § 7. Biirdon of Proof. — The jury are instructed, that when 
 a will is proved, including soundness of mind and memory, on 
 the part of the testator, by the testimony of two subscribing 
 witnesses, and unsoundness of mind is alleged as a ground for 
 setting the will aside, the fact of insanity, or of unsoundness of 
 mind, must be established with reasonable certainty; the evi- 
 dence of insanity should preponderate, or the will must be 
 taken as valid. If there is only a bare balance of evidence, or 
 a mere doubt only, of the sanity of the testator, the ])resump- 
 tion in favor of sanity, if proved as above stated, must turn
 
 CONTESTING WILLS. 593 
 
 tlie scale in favor of the paiiity of tlie testator. Jarman on 
 Wills, 5 Am. Ed., 104; Eed. on Wills, 31-50; FerJdns \i\ 
 Perkins, 39 N. H., 163; Brools vs. Barrett, 7 Pick., 94 
 Turner vs. Cook, 36 Ind., 129; Dickie vs. Carter, 42 111., 376 
 Terry VQ. Buffington, 11 Ga., 337; In re Caff man, 12 la., 491 
 Cotton vs. Ulmer, 45 Ala., 378. 
 
 When the party insistinor on the probate of the will has es- 
 tablished the sanity of the testator, at the making of the will, 
 by the oath or affirmation of two of the subscribing witnesses, 
 and that the will was legally executed, acknowledged and wit- 
 nessed, as explained in these instructions, then a jpriina facie 
 case is made out; and in such a case, the party seeking to con- 
 test the will, on the ground of insanity, fraud, compulsion, or 
 for any other cause, takes u])on himself the burden of proving 
 the ground relied upon; and the cause relied upon must be 
 proved by a preponderance of evidence; and if the question 
 is left evenly balanced, the verdict should be in favor of the 
 validity of the will. 
 
 The juiy are instructed, that the burden of proof is upon 
 the party asserting the sufficiency of the will to prove that, at 
 the time of its execution, the testator was of sound mind and 
 memo!-y, within the meaning of the law, as explained in these 
 instructions, and this is to be determined by the jury, not 
 alone from the statemenis or evidence of any one or more 
 persons, or class of witnesses, but from a consideration of the 
 whole of the evidence in the case. 
 
 The burden of proving testamentary capacity is on the party 
 alleging it, to the end of the trial, and such person must pro- 
 duce evidence sufficient to outweigh that which is opposed to 
 sanity, or else sanity is not proved — and if the jury find that 
 the evidence relating to the testator's mental soundness is 
 equally balanced, then they must not allow the presumption 
 of sanity to decide the question in favor of soundness. The 
 burden of proof is upon the party alleging it to establish men- 
 tal capacity by other evidence than tlie presumption of sanity. 
 Fraser vs. Jennison, 42 Mich., 206. 
 
 § 8. Sound an;l D'spnsinj? Mii d nl Memory. — The law is, 
 that to be of sound and disposing mind and memory, so as 
 to be capable of making a valid will, it is sufficient if the 
 38
 
 594: CONTESTING WILLS. 
 
 testator has an -nndcrstanding of tlie nature of the bnsniess in 
 which he is engaged — a recollection of the property he means 
 to dispose of — of the persons who are the objects of his bount}'' 
 and the manner in which it is to be distributed among thera. 
 It is not necessary that he should compreliend the provisions 
 of his will in their legal form. It is sufficient if he under- 
 stands the actual disposition which he is making of his prop- 
 erty at the time. 
 
 If the mind and memory of a testator are sufficiently sound 
 to enable him to know and understand the extent and amount 
 of his property, and his just relations to the natural objects of 
 his bount}', and the business in which he is engaged, at the time 
 of executing his will, then he is of sound mind and memory 
 within the meaning of the law. Jarman on Wills, 5 Am. Ed., 
 103, et seq.; 1 Red. on Wills, 123-135 ; Freeman vs. Easley, 
 7 N. E. Eep. 
 
 § 9. Test of Testamentary Capacity. — The jury are instructed, 
 that a testator, not affected with any morbid or insane delusion 
 as to any of the natural objects of his bounty, possesses testa- 
 mentary capacity, within the meaning of the law, if he has a 
 clear understanding of the nature of the business in which he 
 is engaged, of the kind and value of the property devised, and 
 of the persons who are the natural objects of his bounty, and 
 of the manner in which he desires his property to be distrib- 
 uted. Fraser vs. Jennison, 42 Mich., 206. 
 
 The will in question in this case is not a valid will unless the 
 jury believe, from the evidence, that the testator, A. B., not 
 only intended to make such a disposition of his property, as is 
 here made, of his own free will, but was also capable of know- 
 ing what he was doing, of understanding to whom he was 
 giving his property and in what proportions, and whom he 
 was dej)riving of it as his heirs who would otherwise have in- 
 Jierited it; and was also capable of understanding the reasons 
 for giving or withholding his bounty as to them. MeGinnis 
 vs. Kempsif, 27 Mich. 363; Eraser vs. Jennison^ 42 Mich., 206. 
 
 § 10. Testamentary Capacity. — The jury are instructed, that 
 what is meant by testamentary caimcity, as used in these 
 instructions, is a rational understanding on the part of the
 
 CONTESTING WILLS. 695 
 
 testator at the time of the making of his will, of the business 
 he was engaged in, of the kind and value of the property 
 devised, of the persons who were the natural objects of his 
 bounty, and of the manner in which he wished to dispose of his 
 property, unaffected by any morbid and insane delusion regard- 
 ing any of these subjects. 
 
 The jury are instructed, that in order to make a valid will 
 the law requires that a person shall be of sound and disposing 
 mind and memory, as defined in these instructions — and testa- 
 mentary incapacity does not necessarily require that a person 
 shall be technically insane. Weakness of intellect, whether it 
 arise from extreme old age, from d'sease or great bodily 
 infirmity or suffering, or from intemperance, or from all of 
 these combined, may render the testator incapable of making 
 a valid will, provided, such weakness really disqualifies him 
 from knowing or appreciating the nature, effects or conse- 
 quences of the act he is engaged in. McGmnis vs. Kem-pfoj^ 
 27 Mich., 363. 
 
 § 11. Partial Insanity — Monomania. — The court instructs the 
 jury, that " a man who is very sober and of right understand- 
 ing in all "other things, may, in some one or more particulars," 
 be insane; that thei'C is a partial insanity, and a total insanity; 
 and that such partial insanity may exist as it respects particu- 
 lar persons,' things or subjects, while, as to others, the person 
 may not be destitute of the use of reason. And, althouarh a 
 testator has some insane delusion upon some subjects, yet, if 
 he has mind enough to know and appreciate his relation to the 
 natural objects of his bounty, and the character and effect of 
 the dispositions of his property, then he has a mind sufliciently 
 sound to make a valid will. 
 
 The court instructs the jury, that the law recognizes the 
 diff'erence between general and partial insanity, and if the jury 
 believe, from the evidence, that the will here offered was made 
 at a time when the testator was laboring under the influence 
 of partial insanity, and is the product of such partial insanity, 
 then it is as invalid as if made under the effects of an insanity 
 ever so general. 
 
 A person may have, upon some subjects, and even generally, 
 mind and memory, and sense to know and comprehend ordi-
 
 596 CONTESTING WILLS. 
 
 nary transaction?, and yet npon the subject of tliose who would 
 naturally be the objects of his care and bounty, and of a rea- 
 sonable and proper disposition as to them of his estate, he may 
 be of unsound mind. 1 Eed. on Wills, 63 j Jarman on Wills, 
 5 Am. Ed., 77, 113. 
 
 § 12. Delusion Regarding "Wife or Child's Property. — The 
 court instructs the jury, that if they believe, from the evi- 
 dence in this case, that at the time the will in controversy was 
 executed, the testator was laboring under an insane delusion in 
 regard to the value of his wife's propert}', and that he was in- 
 fluenced or controlled in the making of said will by said deli - 
 sion, or that the said testator was laboring under an insane 
 delusion in regard to M'hat amount of property he had already 
 ffiven to his daucrhter, and that in making said will he was in- 
 fluenced or controlled by such delusion, then the said testator 
 was not of sound mind and memory, as is contemplated and 
 required by the law, and any pai^er purporting to be a will 
 executed by him under such circumstances, is not a valid and 
 legal will, and the jury should find the issues for the contest- 
 ants. 1 Ked. on Wills, 72, 90; 1 Jarm. on Wills, lUO et seg.; 
 Am. Bible Soc, 115 111., 623. 
 
 § 13. Sanity is Presumed. — The court instructs the jury, that 
 in all cases involving questions of sanity and insanity, prhno 
 facie the person is sane, and when there is only evidence suf- 
 ticient to raise a doubt of a person's insanity, the presumption 
 in favor of sanity must prevail. When a will or other instru- 
 ment is made by a person of competent age, and under no 
 legal disability, it will be taken and held to be valid and bind- 
 ing until incompetency is established, by a preponderance of 
 evidence. Wyatt vs. Walker, 44 ill., 485. 
 
 § 14. Insanity — How Determined. — The jury are instructed, 
 that in determining whether or not a man is insane, he should 
 be compared with himself, and not with others. His manner, 
 talk and actions at a time when it is alleged he was insane, 
 should be com])ared with liis manner, talk and action at a time 
 when he was sane. 
 
 § 15. Settled Insanity Presumed to Continue. — The jury are
 
 CONTESTING WILLS. 697 
 
 instructed, that wlien settled insanity is once shown to exist, it 
 is presumed to continue until restoration to reason is shown; 
 but such presumption arises only in cases of settled insanity, 
 and if complete restoration of reason is thown, then no more 
 presumption of insanity arises in the case of the execution of 
 a will than if the testator's mind had never been affected. 1 
 Eed. on Wills, 112. 
 
 . While it is true that, in the absence of any evidence, tlie 
 law always presumes that a man is sane, yet if insanity, either 
 partial or total, be proved to exist at any time before the 
 making of a will, it will be presumed to have continued, 
 unless the contrary be shown, by a preponderance of the evi- 
 dence. JIe?iH?is vs. Zightner, 18 111., 282. 
 
 § 16, Intoxication. — The jury are instructed, that neither 
 intoxication, nor the actual stinmlus of intoxicating liquor at 
 the time of executing a will, incapacitates the testator, unless 
 the excitement be such as to disorder his faculties and pervert 
 his judgment. 1 Jarman on Wills, 5 Am. Ed., 97; Gore vs. 
 Gibso}^ 13 M. & W., 623; Gardner vs. Gardner, 22 Wend., 
 526; Thompson vs. Kyner, 65 Pa. St., 368; In re Convey'' s 
 Will, 52 la., 197. 
 
 § 17. Drunkenness Insanity, When. — The court instructs the 
 jury, that drunkenness itself is a species of insanity, and may 
 invalidate a will made- during the drunken fit; and long-con- 
 tinued habit of intemjierance may gradually impair the mind 
 and destroy its faculties, so as to produce insanity of another 
 kind; drunkenness long continued, or much indulged in, may 
 produce on some minds, and with some temperaments, perma- 
 nent derangement and fixed insanit}'. Whether in this case 
 intemperate habits or drunkenness on the part of the deceased 
 have been proved, and whether his mind was thereby affected, 
 and to what extent, if any, are questions of fact to be deter- 
 mined by the jury, from a con.^ideration of all the evidence. 
 1 Eed. on Wills, 160-162; 1 Jarm. on Wills, 5 Am. Ed., 97; 
 Wharton & Stille, § 36 et seq.; Ray Med. Jur., § 390. 
 
 § 18. Intoxication May Produce Insanity. — The court instructs 
 the jury, that while it is not the law, that a dissipated man
 
 598 iONTESTING WILLS. 
 
 cannot execute a will, nor that one who is in the habit of ex- 
 cessive indulgence in strong drink must be wholly free from 
 its influence when performing such an act; yet, if fixed mental 
 disease has supervened upon intemperate habits, the man is as 
 incompetent to execute a valid will as though such mental 
 disorder resulted from any other cause. 1 Red, on "Wills, 92 
 et seq. 
 
 § 19. Failure of Memory. — If the testator's mind is sound, 
 although his jnomoi'y maj' be impaired, he may be of, sound 
 mind and memory in the sense in which the phrase is used in 
 law; and in order to destroy the capacity of a person to make 
 a will, on account of failure of memory, the failure nmst be 
 sush as to extend to his immediate fami'y, relatives and 
 friends, and the nature, extant and value of his property. 1 
 Eed. on Wills, 95 et seq. 
 
 § 20. Old Age Does not Necessarily Incapacitate. — The jury 
 are instructed, that a man may freely make his last will and 
 testament, no matter how old he may be ; provided, he has 
 the requisite mental cajmcity, and is a free agent in making it. 
 The control which the la^ gives a man over the disposal of 
 his property may be one of the most efficient means he has in 
 old age of commanding the attentions usually required by his 
 infirmities.' 1 Red. on Wills, 95 et seq. See Ames' Will vs- 
 Blades, 51 la., 596. . . 
 
 § 21. Previously Expressed Purposes. — The , court instructs 
 the jury, that in determining whether the ])aper in question 
 offered as a will is entitled to be so regarded, the paper itself 
 may be considered in connection with all the other evidence 
 in the case in determining the question of sanity or unsound- 
 ness of mind. And if the jury believe, from the evidence, 
 that the' deceased, before executing the will, had expressed 
 any fixed purpose? and intentions regarding the disposition of 
 his property, at variance with the provisions of the alleged 
 will, then the jury should consider whether or not the provis- 
 ions of the will are inconsistent with sanity itself, and with 
 his previously expressed and fixed puri:)oses, and if the jury 
 find that they are so, then these facts also should' be weighed
 
 CONTESTING WILLS. 599 
 
 by the jury in determining the question of sanity or nnsonnd- 
 ness of mind of the deceased at the time of its execution. 
 D>je vs. Youn(/, 5b la., 4:'d3\. /Stevenson \&. Stevenson, 62 la,, 
 163. 
 
 § 22. Will may be Referred to as Showing, etc. — The jury 
 are instructed, that while the provisions of the will may be 
 considered by. the jury, in connection with all the other evi- 
 dence in the case, for the purpose of determining the mental 
 condition of the testator at the time of its execution, still, in 
 order to defeat the will upon the ground alone of the charac- 
 ter of such dispositions, they must not only be in some degree 
 extravagant, and ap]mrently unreasonable, but they' must de- 
 part so far from what should bo regarded as natural and 
 a.pparently reasonable, as to appear fairly attributable to no 
 other cause than that of a disordered intellect or unsound 
 mind. In re Cmvefs Will 52 la., 197; 2 K W. Rep., 1081. 
 
 The jury are instructed, that the unequal distribution of his 
 property, by will, is not of itself any evidence of the insanity 
 gf the testator. 
 
 In determining the question of the validity of this will the 
 jury have a right, and it is their duty, to take into considera- 
 tion the provisions of the will itself, in connection with all the 
 other evidence that has been offered in reference to the ques- 
 tion whether the deceased was, or was not, of sound mind and 
 memory at the time of its execution. Ihid. 
 
 § 23. Expert Testimony. — The testimony of medical men of 
 large experience in their profession, upon the question of tlie 
 existence or non-existence of 'Soundness of mind, is, as a gen- 
 eral rule, entitled to more consideration than the testimony of 
 unprofessional witnesses, who have not devoted their attention 
 to the same class of studies. , 
 
 The jury are instructed, that while it is true that the testi- 
 mony of medical men of large experience, as a general rule, 
 in this class of cases, is entitled to more consideration or 
 weight in the minds of the jury than that of unprofessional 
 men, still, whether the testimony of the medical men, who 
 have testified in this case, is entitled to more weight than that 
 of other ^vitnesses, is a question entirely for the jury, to be
 
 600 COI^TESTING WILLS. 
 
 determined by tliein from a careful consideration of all tlie 
 evidence in the case. Meeker vs. Meekei\ 37 JST. W. Hep., 
 773; Blale vs. Eourke, 3S K W. Rep., 3U2. 
 
 § 24. Testimony of Subscribing AVitnesses. — The court in- 
 structs tlie jury, that the mere fact that a person is a subscrib- 
 ing witness to a will, does not entitle his opinon of the com- 
 petency of the testator to execute the same, to anymoie 
 weiglit than the opinion of any other witness equally credible 
 and intelligent, and with equal opportunities forjudging; and 
 if it happens that he is selected, at the moment, merely for 
 the purpose of meeting the legal requirements, his opinion as 
 to the testator's strength of mind may be of very little weight 
 or importance. 
 
 The weight of the evidence, from the opinions of sub.;crib- 
 ing witnesses, depends upon the same considerations which 
 affect the weight of the opinion of any other witnesses upon 
 the question of the testator's competency. Whetlier a sub- 
 scribing witness or not, we must look at the intelligence of the 
 man, and the means he enjoyed of forming the opinion which 
 he advances, and give little or more weight to his opinion ac- 
 cordingly. 
 
 UNDUE INFLUENCE. 
 
 § 25. Issue to be Tried. — The jury are instructed, as a mat- 
 ter of law, the only question, in this case, for them to try, is 
 this: Is the writing here offered the will of A. B., deceased? 
 And your verdict will be, that it is his will or that it is 
 not. 
 
 And the real inquiry to be determined is: Did the said A. 
 B., deceased, make and execute the alleged will, in all its ])ro- 
 visions, of his own free will and volition, so that it now ex- 
 presses his own wishes and intention, or was he constrained or 
 coerced, through the undue influence, restraint or coercion of 
 others, in making his will, to act against his own desire and 
 intention, as regards the disposition of his property, or any 
 part of it? 
 
 The burden of proof is upon the contestants to show that 
 the making of the will M'as obtained by undue influence; and
 
 CONTESTING WILLS. 601 
 
 in order to defeat the probate of the will on this account, it 
 must aj^pear to your satisfaction, by a preponderance of the evi- 
 dence, that undue influence was employed; and, to constitute 
 undue influence, it must appear to be such influence or restraint 
 as caused the execution of the will by the decedent, against 
 his own preference or desire in the matter. Mere advice or 
 persuasion to induce a testator to make a will or influence the 
 disposition of his property by will, is not undue influence. 
 WeMer vs. SulllvMi, 12 N. E. Rep., 319; 58 la., 260. 
 
 § 26. What Must App?ar. — The jury are instructed, that no 
 general rule can be laid down as to what constitutes undue in- 
 flueiice in this class of cases, farther than this, that in order 
 to make a good will a man must be a free agent, and feel at 
 liberty to carry out his own wishes and desires; and any re- 
 straint, threats or intimidations brought to bear upon the tes- 
 tator, which he has not the strength of mind or will to resist, 
 if exerted so as to coerce him against his desire and purpose 
 into the making of his will, or any of its provisions, is undue 
 influence within the meaning of the law. And whether such 
 undue influence existed in this case must be determined by 
 the jury, from a consideration of all the evidence, in view of 
 the law as given you by the court. Bradford vs. Vinior, 26 
 K W. Eep., 401. 
 
 The influence exercised over a testator which the law re- 
 gards as undue or illegal, must be such as to destroy his free 
 agency in the matter of making his will; but it matters not 
 liow little the influence, if the free agency is destroyed it 
 vitiates the act which is the reult of it; and the amount of 
 undue influence which will be sufficient to invalidate a will 
 may vary with the strength or weakness of the mind of the 
 testator; and the influence which would subdue and control a 
 mind and will naturally weak, or one which had become im- 
 paired by age, disease or other cause, might have no effect to 
 overcome a mind naturally strong and unimpaired. 1 Ked. 
 on Wills, 510. 
 
 To avoid a will on the ground of undue influence, it must 
 be made to appiear, by the evidence, that it was obtained by 
 means of influence amounting to moral coercion, destroying 
 free agency, or by importunity which could not be resisted, so
 
 602 CONTESTING WILLS. 
 
 that the testator was constrained to do that which was against 
 his actual will, and which influence he was unable to withstand, 
 or too weak to resist. Brick vs. Brick, QQ N. Y., 144; Barnes 
 vs. Bar7ies, 66 Me., 285. 
 
 The exercise of undue influence need not be shown by direct 
 proof; it may be inferred from circumstances; but the circum- 
 stances nmst be such as to lead justly to the inference that un- 
 due influence was employed, and that the will did not express 
 the real wishes of the testator. Ju re /Smif/i's Will, 22 Wis., 
 543; Samson vs. Samson, 25 K W. Eep., 237, Note. 
 . The jury are instructed, that any influence exercised upon 
 the testator, if proved, by reason of which his mind was so em- 
 barrassed and restrained in its operations that he was not mas- 
 ter of his own opinions and wishes, in respect to the disposi- 
 tion of his estate, was undue influence within the meaning of 
 the law. 
 
 Any command or importunity addressed to the testator, if 
 carried to such a degree as to control or restrain the free play 
 of his will, judgment or discretion, in any matter affecting 
 his will, was undue influence; and, if proved, in this case, will 
 render the will in question invalid, though uo force was used 
 or threatened. ■ • 
 
 ^ 27. Undue Influence Must Aff'ect the Will, etc. — That to~ in- 
 validate a will, on the ground of undue influence, it must ap- 
 pear, by a preponderance of the evidence, that such' undue 
 influence was practiced with respect .to the will, or as to some 
 matter or circumstance so connected with it, as to raise a pre- 
 sumption that such undue influence affected the provisions of 
 the* will; any degree of influence exercised over the testator 
 which does not affect the making of the will or any of its pro- 
 visions can not iuA'alidate it. 1 Red. 6n Wills, 625 ^ ^SaTnson 
 vs. Sa?nson, 25 N. W. Fwep., 237, Note. 
 
 § 28. It Must Destroy Free Ajsency. — That the influence 
 which will, vitiate a will on the ground of undue influence' 
 must amount to such a degree of restraint and coercion as fo 
 destroy the testator'afree agency. To have that effect, in this 
 case, the jury must believe, from the evidence, that the will 
 in question was Obtained by such a degree of restrg-int and co-
 
 CONTESTING WILLS. 603 
 
 ercion upon the mind and will of the deceased as to destroy 
 his free agency in some matter connected with the will, so 
 that the will itself does not express his wishes or desires, but 
 those of some other person. It is immaterial what arguments, 
 influence or persuasion were brought to bear upon the testator; 
 provided only, that in making his will he carried into effect 
 his own will and intention, and not those of another. 
 
 § 29. Legitimate Influence. — The court instructs the jury, 
 that any degree of influence over another, acquired by kind- 
 ness and attention, can never constitute undue influence within 
 the meaning of the law, and although the jury may believe, 
 from the evidence, that the deceased, in making his will, was 
 influenced by the said A. B., still, if the jury further believe, 
 from the evidence, that the influence which was so exerted 
 was only such as was gained over the deceased by kindness 
 and friendly attentions to him, then, such influence cannot be 
 regarded, in law, as undue influence, and the verdict should 
 be in favor of the validity of the will. 1 Red. on "Wills, .522 
 et> seg.; In re CarroVs Will, 50 "Wis., 437. 
 
 It is not unlawful for one, by honest advice or persuasion, 
 to induce a testator to make a will, or to influence him in the 
 disposition of his property by will. To vitiate a will on 
 account of undue influence it must appear, from the evidence, 
 that there was something wrongfully done amounting to a 
 species of fraud, compulsion or other improj^er conduct. 
 Toe vs. McCord, 74 111., 33; Fierce vs. Fieixe, 38 Mich., 
 412. 
 
 It is not unlawful 'for a person, by honest intercession and 
 persuasion, to induce a will in favor of himself or any other 
 person; neither is it unlawful to induce the testator to make 
 a will in one's favor by f«,ir speeches and kind conduct, for this 
 does not amount to that kindof comjjulsion, improper conduct 
 or undue influence, which, in a legal sense, would render 
 invalid 'the will. To have such an effect it must amount to a 
 fnoral force and coercion, destroying free agency. It must not 
 be the influence of affection and attachment, nor be the mere 
 desire to gratify the wishes of another, but the compulsion in 
 this case, in order to render the will invalid, must be of such 
 a degree and ' character as to prevent the exercise of that dis-
 
 604 CONTESTING WILLS. 
 
 cretion wliicli is essential to a sound, disposing niiud. Dickie 
 vs. Carter, 42 III., 376. 
 
 § 30. Legitimate Advice or Persuasion. — That, in tliis case, 
 though the jury may believe, from the evidence, that the said 
 A. B. did use arguments and importunities to influence the 
 deceased in the making of the will in question, still this fact 
 will, in no manner, affect the validity of the will, if the jury 
 further believe, from the evidence, that such arguments and 
 importunities did not deprive the deceased of his free agency 
 or prevent him from doing as he pleased with his property, 
 even though the will might not have been made in all of its 
 provisions as it is, but for such argument and persuasion. 
 
 Though the jury may believe, from the evidence, that the 
 testator, in making the will in question, acted upon tlie sug- 
 gestions and advice, or under the influence, of the said A. B., 
 this will not, in any manner, affect the validity of the will; 
 provided he acted freely and from his own conviction in -the 
 disposition of his property, though the provisions of tlie will 
 are not the same as they would have been but for such sug- 
 gestions, advice or influence. In re CarroVs Will, 50 Wis., 437. 
 
 § 31. Cannot Question Testator's Motives. — The jury are in- 
 structed, that if, from the evidence, they believe that the 
 mind and memory of the testator was sufiiciently sound to en- 
 able him to know and understand the extent, nature and 
 amount of his property, and his just relations to the natural 
 objects of his bounty, and to know and understand the business 
 in which he was engaged, when he executed his will, then the 
 jury have no right to inquire into or question the testator's 
 motives for the disposition of his estate. That is a question 
 under the absokite dominion of the testator. 
 
 § 32. Motives May be Inquired into, When. — That while it ig 
 true that a testator's motives for the disposition of his estate 
 are not matters affecting the validity of a will, yet this rule 
 only applies iu cases where it does not appear that the testator 
 was of unsound mind, or possessed of insane delusions, which 
 affected his act ; and, in this case, if the jury believe, from the 
 evidence, that at, etc., the mind of the deceased was affected
 
 CONTESTING WILLS. 605 
 
 by any insane delusion regarding, etc., and that any of the 
 provisions of the alleged will were prom])ted by motives based 
 upon, or arising out of such delusion, this would render tlie 
 will invalid. 
 
 The court further instructs the jury, that if it be manifest, 
 from the will itself, that the testator believed that a sufficient 
 provision had been made outside of the will for the support 
 of his wife, and if it shall also be apparent from the will, that, 
 in the making of the will, the testator was influenced by that 
 belief, and that he would have provided differently for her 
 had he not entertained such belief, and if the jury furtlier 
 find, from the evidence, that such belief was unfounded, and 
 had, in no manner, been reasonably evidenced to him, then the 
 jury have a right and ought to take these things into con- 
 sideration in determining whether the testator was of sound 
 mind when he signed his will. 
 
 § 33. Unlawful Cohabitation. — The jury are instructed, that 
 illicit sexual intercourse between a testator and his devisee, 
 however immoral or illegal it may be, does not necessarily 
 render the will of the testator invalid; nor could that circum- 
 stance, in any manner, affect the validity of the will if it was 
 made by him with a sound and disposing mind and memory, 
 and as a free agent. 1 Red. on "Wills, 531-533; Dean vs. 
 Negley, 41 Penn. St., 312; Eclert vs. Floiorij, 43 Penn. St., 46. 
 
 The jury are instructed, that if they believe, from the evi- 
 dence, that the testator and the said Mrs. P., before and at the 
 time the will was made, were living in unlawful cohabitation, 
 then the law will presume that undue influence was used by 
 her over the deceased in the making of the will in question, and 
 the burden of the proof is upon her to show that no such 
 undue influence was used. Leighton vs. Orr, 44 Iowa, 679; 1 
 Red. on Wills, 531-533; Wallace vs. Harris, 32 Mich., 380. 
 
 § 34. Groundless Fears. — If the jnry believe, from the evi- 
 dence in this case, that the testator A. B., at the time of the 
 making of the will in question, had attained extreme old age, 
 that his nervous system had become more than ordinarily sen- 
 sitive, and that he had become timid and fearful, and that he 
 was in constant dread of injury from the said E. B.^ then, al-
 
 6U6 CONTESTING WILLS. 
 
 though the jury may believe, from the evidence, that no real 
 cause existed for the said testator to be ajDprehensive of evil, 
 or to fear injury from the said E. B., and that such apprehen- 
 sions and fear proceeded from a morbid delusion of the testa- 
 tor, still, if the jury believe, from the evidence, that said will 
 was the result or offspring of such delusion, and does not ex- 
 press the real wishes and intentions of the testator, then the 
 jury should Und that the said paper is not the will of the said 
 A. B. 
 
 If the jury believe, from the evidence in this case, that the 
 said A. B., at the time of the executing of the said paper 
 offei'ed in evidence as his last will and testament, was greatly 
 advanced in age, in feeble health, and laboring under the fear 
 of bodily hurt {or impriscnwient) at the hands of the said E, 
 B., and that the said paper was the result or offspring of such 
 fears, and was not the result of his own free will, then the 
 jury should find that the said paper is not the will of the said 
 A. B. 
 
 § 35. Provisions of the Will May be Considered. — That in 
 determining the question of the validity of this will you have 
 the right, and it is your duty, to take into consideration the 
 provisions of the will itself, in connection with all the other 
 evidence in the case bearing upon the question, whether the 
 said A. B. was coerced by threats or fear of bodily harm into 
 making the will in question, or whether he, in his lifetime, of 
 his own free will and volition, made and executed the said 
 will so that it expresses his own wishes and intention. 
 
 § 36. On Appeal from Probate Court. — In Fraser vs. Jenni- 
 son, 42 Mich., 206, 3 K W. Rep., 576, the following instruc- 
 tions were given for the proponents on the trial of an appeal 
 from the probate court. 
 
 " Gentlemen of the jury: you are called upon, in this case, 
 to determine whether Alexander D. Fraser, on the seventeenth 
 of May, 1877, possessed sufficient mental capacity to make a 
 will. 
 
 "A paper has been offered in evidence, which the propon- 
 ents claim to be his last will and testament. If you believe the 
 testimonj' of the subscribing witnesses, the paper was executed
 
 CONTESTING WILLS. 607 
 
 in accordauce willi the laws of this state; but conceding; this 
 to be true, it is claimed on behalf of the contestants that the 
 paper is void, because Mr. Fraser, at the time of its execution, 
 did not possess sufficient mental vigor or capacity to compre- 
 hend and realize what he was doing. This is the question of 
 fact, or the principal question of fact, you must determine 
 from the evidence that has been admitted. You must be 
 careful, gentlemen of the jury, to conJine 3'our attention to the 
 evidence introduced and not permit your minds to be influ- 
 enced by any statements made in your presence or hearing by 
 the counsel in this case, as to matters that were not permitted 
 to go in evidence. 
 
 " The rule, gentlemen, stated by the weight of authority, 
 undoubtedly is, that a less degree of mind is required to exe- 
 cute a will than a contract. Although the testator must un- 
 derstand substantially the nature of the act, the extent of his 
 property, his relations to others who may or ought to be the 
 object of his bounty, and the scope and bearing of the pro- 
 visions of his will, and must have sufficiently active memory 
 to collect in his mind, without prompting, the elements of the 
 business to be transacted, and to hold them in his mind a suf- 
 ficient length of time to perceive, at least, their obvious rela- 
 tions to each other, and be able to form some rational judg- 
 ment in reference to them, yet he need not have the same 
 perfect and complete understanding and appreciation of any of 
 these matters, in all their bearings, as a person in sound and 
 vigorous health of body and mind would have, nor is he re- 
 quired to know the precise legal effect of every provision con- 
 tained in his will. 
 
 "To use still another form of expression, gentlemen, the 
 will is not valid unless the person making it not only intends, 
 of his own free will, to make such a disposition, but has capac- 
 ity to know what he is doing, or understanding to whom he 
 is giving his property, in what proportions, and who he is de- 
 priving of it, as his heirs or devisees under the will he makes. 
 When a man has mind enough to know and appreciate the 
 natural object of his bounty, and the character and effect of 
 the disposition of the will, then he has mind sufficiently sound 
 to enable him to make a valid will.
 
 608 CONTESTING WILLS. 
 
 ""Witli tliese instructions in your mind, weigh the testimony 
 of all the witnesses. Many of these were persons who spoke 
 from actual knowledge of the deceased. Consider the testi- 
 mony of those as well as that of the experts, and give to eacb 
 and every one of them such weight as you may deem proper. 
 This question of capacity is entirely and exclusively for your 
 disposition and decision. 
 
 "It rests upon the proponents to satisfy you, by a preponder- 
 ance of proofs, that the deceased was of sound mind when the 
 paper was executed. As bearing upon the state of Mr. 
 Fraser's mind, his declarations — that is, what he said to persons 
 — have been admitted, and are to be construed by you for this 
 purpose only, not as proving any facts stated in the declara- 
 tion. 
 
 "If, under these instructions, you reach the conclusion that 
 A. D. Fraser possessed sufficient mental capacity on the 17th 
 of May, 1877, to make his will, your verdict should be for the 
 proponents. If, on the other hand, you determine he did not 
 possess this mental capacity, your verdict should be for the 
 contestants." 
 
 § 37. On Contest in Chancery. — In American Bible SoG. vs. 
 Price, 115 111., 623, 5 K E. Eep., 126, the following instruc- 
 tions, as to testamentary capacity, given for the proponents, 
 were approved : 
 
 " The court instructs the Jury, that if they believe, from the 
 evidence, that Isaac Foreman, at the time he signed the paper 
 in dispute, had mind and memory sufficient to transact his or- 
 dinary business, and that, when he made the will, he knew and 
 understood the business he was engaged in, then the jury 
 should find said paper writing to be the will of said Foreman. 
 
 " The court instructs the jury, that the owner of property 
 who has ca]:)acity to atten 1 to his ordinary business, has the 
 lawful right to dispose of it, either by deed or by will, as he 
 may choose, and it requires no greater mental capacity to 
 make a valid will than to make a valid deed. And if such an 
 owner chooses to disinherit his heir, or leave his property to 
 some charitable object, he has a legal right to do so, and such 
 disposition of his property is valid, whether it be reasonable or 
 unreasonable, just or unjust; and the reasonableness or jus-
 
 CONTESTING "WILLS. 609 
 
 tice or propriety of the will are not qnestions for the jury to 
 ]iass upon. If, therefore, the jury believe, from the evidence, 
 that when he executed the pai;er in dispute, Isaac Foreman 
 had capacity enough to attend to his ordinary businees, and 
 to know and understand the business he was engaged in, then 
 he had the right and the capacity to make such a will, and tlie 
 jury should find the i)aper in dispute to be the will of said 
 Foreman. The court instructs the jury, that even if they 
 find, from the evidence, that Isaac Foreman had, during some 
 portion of liis life, eccentricities or peculiarities, or even an 
 insane delusion or partial insanity on the subject of religion, 
 or masonry, or education, or any other subject, yet if they 
 find, from the evidence, that at the time he m^de the will in 
 question, he had sufficient mind and memory to understand 
 his ordinary business, and that he knew and understood the 
 business he was engaged in, and intended to make such a will, 
 the jury should find such will to be the will of said Isaac 
 Foreman. 
 
 "The court instructs the jury, that eccentricities or pecul- 
 iarities, or radical or extreme notions or opinions upon re- 
 ligion, colleges, education, or masonry and secret societies, will 
 not necessarily render a man incapable of making a will, and 
 if the jury find that, in making the will in dispute, Isaac Fore- 
 man had sufficient mind and memory to understand the busi- 
 ness he was engaged in when he made the will, then the jury 
 should find in favor of said will, though said Foreman may 
 have had eccentricities and peculiarities, or extreme notions 
 and opinions upon religion, colleges, education, or masonry or 
 secret societies. 
 
 "The court instructs the jury, that, in order to make a valid 
 will, it is only necessary that a man shall have mental capacity 
 sufficient for the trans;!ction of the ordinary affairs of life, 
 and possessing this, though he may be feeble in mind and 
 body from sickness or old age, he has the legal right to dis- 
 pose of his property just as he pleases, without consulting 
 either his family or his acquaintances. And if the jury believe, 
 from the evidence, that when he executed the ]^a])er in dis- 
 pute, Isaac Foreman knew what lie was doing, and executed 
 it as his will, understanding its nature and effect, and that, at 
 39
 
 610 CONTESTIXG WILLS. 
 
 the time, lie had sufficient mind and memory to transact his 
 ordinaiy business, such as buying or selling or renting prop- 
 erty, or collecting or leaving out nKmcy or settling accounts, 
 tlien the jury should find the paj)er in dispute to be the last 
 will and testament of said Isaac Foreman." 
 
 On the part of the contestants, the following instructions 
 were given and approved: 
 
 "If the jury believe, from the evidence, that, although Isaac 
 Foreman had sufficient capacity to attend to the ordinary busi- 
 ness atfairs of life, yet that, with regard to subjects connected 
 with the testamentary disposition and disti'ibution of his prop- 
 erty and the natural objects of his bounty, he was insane, and 
 that while laboring under such insanity he made the will in 
 question, and that in making it he was so far influenced or con- 
 trolled by such insanity as to be unable rationally to compre- 
 hend the nature and effect of the provisions of the will, and 
 was thereby led to make the will as he did, then the jury 
 must find the will not to be the will of the said Isaac 
 Foreman. 
 
 "An insane delusion is a fixed and settled belief in facts not 
 existing, which no rational person would believe; such delusion 
 may sometimes exist as to one or more subjects; and it the 
 jury believe, from the evidence in this case, that Isaac Fore- 
 man was laboring under such insane delusions upon subjects 
 connected with the testamentary disposition of his iirc)perty, 
 and the natural objects of his bounty, when he made the will 
 in question, and was, thereby, rendered incompetent to com- 
 prehend, rationally, the nature and effects <;f the act, and that 
 but for tuch delusions he would not have made the will as he 
 did, then the jury should find against the validity of the will."
 
 CHAPTER XLIX. 
 
 WOEK, LAi30E AND SERVICES. 
 
 Sec. 1. Implied contract. 
 
 2. Promise to pay implied, when. 
 
 3. Professional service, price implied. 
 
 4. Warranty of skill and care implied. 
 
 5. Ordinary skill defined. 
 
 6. Acceptance of work. 
 
 7. Usual 8'oing' wages implied, when. 
 
 8. Not bound by acceptance, when. 
 
 ENTIRE CONTRACT. 
 
 9. Fulfillment prevented by defendant. 
 
 10. Substantial performance. 
 
 11. Entire contract — Leaving without good cause. 
 
 12. Payment a condition precedent. 
 
 13. Burden of proof. 
 
 14. Pretext for leaving. 
 
 15. Must be substantial cause for leaving, etc. 
 
 16. Entire contract — Rule of damages. 
 
 17. Mast demean himself respectfully. 
 
 18. Leaving on account of sickness. 
 
 19. Discharged or compelled to leave, etc. 
 
 20. Distharged without good cause — Measure of damages. 
 
 21. Workmen must avoid unnecessary damages. 
 
 22. Services by member of the family. 
 
 23. Stranger a member of the family. 
 
 24. Services of a child. 
 
 25. When promise may be inferred. 
 
 26. Emancipation of minor. 
 
 27. Minor can only disaffirm contract after majority. 
 
 28. Gratuitous labor. 
 
 29. Agreed price must govern. 
 
 30. Contract presumed to continue, when. 
 
 31. Evidence of reasonable worth. 
 
 32. Burden of proof of payment. 
 
 33. Offer to compromise. 
 
 34. Effect of pleading set-off. 
 
 35. Written contract varied by paroL 
 
 (611)
 
 612 WOKK, LABOR AND SERVICES. 
 
 § 1. Implied Contract. — The court instructs the jury, that 
 when a contract lor work and labor is entered into, and the 
 terms agreed upon by the parties, with t1ie understanding that 
 it shall be reduced to writing, and one of the parties to the 
 agreement enters upon the pei-formance of it, without objec- 
 tion from the other party, the contract in all its terms will be 
 as binding as if it had been reduced to writing. Miller vs. 
 McMaimis, 57 111., 126. 
 
 § 2. Promise to Pay Implied, When. — While one person can- 
 not make another his debtor without the consent of the latter, 
 or recover for services rendered for another, without a request 
 expressed or implied, yet, if one stands by and sees another 
 doing work for him, beneficial in its nature, and overlooks it 
 as it progresses, and does not interfere to prevent or forbid it 
 but appropriates such labor to his own use, then, in the ab- 
 sence of a special contract, a request will be implied, and the 
 person for whom the work has been done will be liable to pay 
 for the work what the same was reasonably worth, unless it 
 expressly appears, from the evidence, that it was done as a 
 gift or gratuity. 1 Pars, on Cont., 445; De Wolf vs. City of 
 Chicago^ 2f3 111., 44-5; Allen vs. Richmond, etc., 41 Mo., 302. 
 
 The court instructs you, that when one person labors for 
 another with his knowledge and consent, and the latter volun- 
 tarily takes the benefit of such labor, then the law will presume 
 that the laborer is to be paid for his labor, unless the contrary' 
 is shown by the evidence, and if no special contract is pi-oved, 
 fixing the price, then the laborer is entitled to have what his 
 services are reasonably worth. Trustees of Farmlngton, etc., 
 vs. Allen, 14 Mass., 172. 
 
 Work and labor, if done at the request of the promisor, 
 are a good consideration for a promise to pay for the same; 
 and if the evidence shows that work and labor have been done 
 and performed for another, with his knowledge and consent, 
 or if he has voluntarily accepted and received the benefit 
 resulting from such work and labor, then, unless there is evi- 
 dence to the contrary, a request to perform it may be inferred 
 from these facts. 
 
 When work and labor are done and performed for the 
 benefit of another, with his knowledge and consent, and he
 
 "WOKK, LADOE AND SEKVICES. 613 
 
 receives the benefit arising therefrom, then the law will pre- 
 sume a promise on his part to pay for the same; unless it 
 appears, from all the evidence in the case, that such work and 
 labor were done under a special contract, or as a gratuity or a 
 gift. O'Connor vs. Bechwith,4:l Mich., C57. 
 
 Where no Price is Fixed. — If the jury believe, from the 
 evidence, that the plaintiff performed labor and services for 
 the defendant at his request, and that no price was fixed or 
 agreed upon, then the law will imply a promise from the 
 defendant, to pay the plaintiff, for such work and labor, what 
 the same are reasonably worth. 
 
 § 3. Professional Sei'vices, Price Impliefl. — If the jury be- 
 lieve, from the evidence, that the plaintiff rendered the pro- 
 fessional services to defendant, or to his family, at his request, 
 as claimed by the plaintiff, then the plaintiff is entitled to 
 recover what the jury may believe, from the evidence, such 
 services were reasonably worth, according to the usual charges 
 of the (niedicaT) profession in the vicinity, where the plaintiff' 
 lives, if the same is shown by the evidence, after deducting 
 what payments, if any, the jury may believe, from the evi- 
 dence, have been made therefor. 
 
 § 4. Warranty of Skill and Care Implied. — If the jury be- 
 lieve, from the evidence, that the defendant employed the 
 plaintiff to thresh his grain at an agreed price, then the plaint- 
 iff was bound in law to do the work in a workmanlike man- 
 ner. And should the jury further believe, from the evidence, 
 that the ] ai itiff, through negligence, want of care or skill, 
 performed tlie work in a wasteful and slovenly and unwork- 
 manlike manner, and tliat the defendant was thereby damaged 
 in an amount equal to, or greater than, the sum claimed for 
 the threshing, then the jury should tind for the defendant. 
 
 If you believe, from the evidence, that the plaintiffs were 
 the owners of, or in possession of, a threshing machine, which 
 they were using about the country for hire, and that the de- 
 fendant employed them to thresh his grain, at an agreed 
 price, and that the plaintiffs knowingly undertook and per- 
 formed such threshinfi:: with a machine defective and out of
 
 614 ■WORK, LACOK AND SERVICES. 
 
 repair, and that the defendant was thereby damaged, then the 
 defendant has the right to offset the amount of such damages 
 against the plaintiffs' claitn for tlireshing. Garfield vs. Huls, 
 54 111., 427. 
 
 When a person engages to work for another, he impliedly 
 contracts that he has a reasonable amount of skill lor the 
 employment, and that he will use it, as well as reasonable care 
 and diligence; and a failure to do so, to the injury of his 
 employer, will prevent him from receiving the full contract 
 price. The employer may recoup or set off against the con- 
 tract price the damages he may sustain for want of reasonable 
 skill, or the observance of reasonable care and diligence in the 
 performance of the work, if the same are proved by the evi- 
 dence. 2 Pars, on Cont., 54; Parlter vs. Piatt, 74 111., 430. 
 
 "When a person holds himself out to the public, or to those 
 hiring him, as a person having the requisite experience and 
 skill to perform any work or service requiring special knowl- 
 edge or skill, he impliedly warrants that he possesses such 
 knowledge as will enable him to do the work and perform the 
 service, in a workmanlike and in an ordinarily skillful manner. 
 
 If you believe, from the evidence, that the plaintiff repre- 
 sented to the defendant that he was experienced and skilled in 
 the business of {maldjig cheese), and that he was employed by 
 the defendants in that business, then there was an implied war- 
 ranty on his part, that his work should be done in an ordi- 
 narily good and workmanlike manner; and if you further be- 
 lieve, from the evidence, that the plaintiff was not skilled or 
 experienced in said business, and did not do his work in an 
 ordinarily good and workmanlike manner, then the defendant 
 had a right to discharge him from such employment. Park- 
 ham\&. Daniel, 56 Ala., 604. 
 
 If you believe, from the evidence, that some time on or 
 about, etc., the defendant employed the plaintiff to manufact- 
 ure {cheese) for him during the then succeeding summer, and 
 that he commenced to work under that contract, and that he 
 did not do his work in an ordinarily good, workmanlike and 
 skillful manner, and that the defendant was thereby damaged 
 to the extent of the value of such services, then the plaintiff 
 is not entitled to recover for any jiart of such labor; provided, 
 you further believe, from the evidence, tliat the defendant dis-
 
 ■^'ORK, LABOR AND SERVICES. G15 
 
 cliarged the plaintiff witliin a reasonable time after discovering 
 the manner in which such work was done. 
 
 If you believe, from the evidence, that the plaintiff wa 
 employed by defendant to superintend {the manufactm'e of 
 cheese) for him, and that he worked for the defendant at that 
 business, for a time, still, if you further believe, from the evi- 
 dence, that his work was not done in an ordinarily skillful and 
 workmanlike manner, and that the defendant was thereby dam- 
 aged, and that during the progress of the work the defendant 
 did not, and by the exercise of reasonable care in that behalf 
 could not, know of the defective manner in which said work 
 was done, then you should set off the amount of such damage 
 against the value of the work so done by the plaintiff. 
 
 § 5. Ordinary Skill Defined. — The jury are instructed, that 
 what is meant by ordinary skill, in these instructions, means 
 that degree of skill which men engaged in that particular art 
 or business usually employ; not that which belongs to a few 
 men only of extraordinary endowment and capacities, but such 
 as is generally possessed by men engaged in the same business. 
 Wmigh vs. ShimJc, 20 Penn. St., 130. 
 
 § 6. Acceptance of Work. — If the jury believe, from the evi- 
 dence, that the defendant inspected the work in question, and 
 knew its character and quality, and, with such knowledge, ac- 
 ce]ited the work done and materials furnished by the plaintiff 
 as in com])liance with and a full performance of the contract 
 on ]ilaintift''s part, then the plaintiff is entitled to recover 
 whatever, if anything, the jury shall find, from the evidence, 
 is unpaid upon the contract price. /Strawn vs. Cogsivell, 28 
 111., 457. 
 
 You are instructed, that no particular words or form is nec- 
 essary to amount to an acceptance of work done or material 
 furnished. Such acceptance may be by words or acts, if they 
 are such as show that the party knew the character and qual- 
 ity of the work and material, and was satislied therewith. 
 
 § 7. Usual Going "Wages Imi)licd, When. — That when a per- 
 son employs a person to labor for him, without any contract 
 as to price, and, with knowledge of all the facts, accepts the
 
 616 WOKE, LALOK AKD SEUVICES. 
 
 services without complaint, he will be presumed to have con- 
 tracted to pay at the usual and going price for such services; 
 and the fact, if proven, that the servant did not perform his 
 work well, wall not excuse the employer from paying such 
 price. If he desires to relieve himself from such liabilityj the 
 employer ought to discharge the servant. 
 
 § 8. Not Bound by Acceptance, Wlien. — The court instructs 
 the jury, that when a party accepts work done for him, or 
 material furnished, he does not thereby waive objections to 
 any latent defects that may be in the work or in the mate- 
 rials, and which, at the time of acceptance, are not open to 
 inspection and are not known to him. Korf v&. Lull, 7U 111., 
 420 ; Garfield vs. Euls, 54 111., 427. 
 
 Though you may believe, from the evidence, that the 
 plaintiff performed the work in question, and that the defend- 
 ant saw the work, from time to time, as it was being done, and 
 made no complaint in reference thereto, but accepted the work 
 as done, still, if you further believe, from the evidence, that 
 the defendant was not a judge of such work, or that the alleged 
 defects, if they existed, could not have bsen seen by him, by 
 reasonable diligence on his part, and were not seen by him, 
 then he would not be estopped from showing the defective 
 character of the work, if such defects exist; and if you further 
 believe, from the evidence, that the work was not done in a 
 good and workmanlike manner, by reason of the defective 
 machinery, or of the careless manner of working the same, 
 and that the defendant was damaged thereby, then you may 
 deduct the amount of such damage from the price of the work, 
 as found by you under the evidence. 
 
 ENTIRE CONTEACT. 
 
 § 9. Fulfillment Prevented by Defendant. — If the jury believe, 
 from the evidence, that the plaintiff has furnished the mate- 
 rial and completed the building, mentioned in the contract, in 
 a good and workmanlike manner, then, although the jury may 
 further believe that the same was not completed within the 
 time limited in the contract in that behalf, still, if the jury 
 further believe, from the evidence, that the delay complained
 
 AVOKK, LAliOK AND SERVICES. 617 
 
 of wds caused by tlio defendant himself, and without fault on 
 the [jart of the plaintiff, then the plaintiff' is entitled to re- 
 cover the balance, if any, unpaid upon the contract price, witli 
 {six) per cent, interest thereon, from the time the same was 
 payable by the terms of the contract. Straion vs. Cogswells 
 28 111., 457. 
 
 Although you should believe, from the evidence, that the 
 plaintiff did nut fully and in all particulars build and furnish 
 the liouse according to the contract, still, if you further 
 believe, from the evidence, that he substantially completed it, 
 leaving but little to be done, and so far {lerformed his contract 
 as to erect a house useful to the defendant, and that defend- 
 ant has taken possession and is using the same, then the jury 
 should allow to the plaintiff the contract price for building 
 the same, less such amount as it would take to construct these 
 parts omitted or neglected to be built by the plaintiff. Gold- 
 smith vs. Hcmd, 26 Ohio St., 101. 
 
 If you believe, from the evidence, that the plaintiff, by the 
 consent of the defendant or by an agreement with him during 
 the progress of the work, constructed some parts of the build- 
 ing of materials different from that required by the written 
 agreement, or of a size and form different from tliat mentioned 
 in the written agreement, still if you further believe, from 
 the evidence, that the building as constructed was useful to 
 the defendant, then the plaintiff" is entitled to recover the con- 
 tract price for erecting said building, less the difference in 
 value of these parts so constructed, and their vahie, if they 
 had been constructed according to the written contract, credit- 
 ing the defendant, of course, with such amounts as you find, 
 from the evidence, the defendant has paid upon the contract. 
 Goldsmith vs. Hand, 26 Ohio St., 101; White vs. Oliver, 26 
 Me., 92. 
 
 You are instructed, that changes and alterations in the plan 
 and design of the work in question are authorized to be made 
 hj defendant by the terms of the written contract introduced 
 in evidence without in any manner invalidating the contract, 
 except in so far as it should be so changed or altered: and if 
 you believe, from the evidence, that any change or alterations 
 were ordered during the progress of the work by the defend- 
 ant or by any one authorized by hira to order tliem, and that
 
 618 WORK, LABOR AND SERVICES. 
 
 sucli alterations and changes were made by the plaintiff, and 
 that they required additional labor or material to be furnished 
 by the plaintiff, then he is entitled to receive for such addi- 
 tional labor what the same was reasonably worth. 
 
 Although you may believe, from the evidence, that during 
 the time the plaintiff was in the employ of defendant he did 
 not turn out good work, still, if you further believe, from 
 the evidence, that plaintiff's failure to turn out good work 
 was owing to no fault of his, but was owing to defendant's 
 neglect to furnish proper tools, stock or machinery, after 
 notice by plaintiff to furnish the same, if such notice has 
 been proved, then such failure to turn out good work would 
 not alone justify defendant in discharging the plaintiff, nor 
 affect the plaintiff's right to recover in this suit; provided 
 you find that defendant did discharge the plaintiff for such 
 reason before the expiration of the time for which he was 
 hired, and that plaintiff has sustained damage thereby. 
 
 § 10. Substantial Performance. — The rule of law is, that 
 when a job of work is actually and substantially performed, 
 though not in exact conformity with the contract in immaterial 
 particulars, or with variations assented to by the employer, 
 or when the employer accepts the work as and for a com- 
 pleted performance of the contract, then the workman may 
 recover for his work and labor what the same are reasonably 
 worth. White vs. Hewitt, 1 E. D. Smith, 895; Dermott vs. 
 Jones, 23 How., 220; Diitro vs. Walter, 31 Mo., 516. 
 
 The law is, that when a party makes a special agreement to 
 do certain work in a particular manner, within a fixed time, 
 and he fails to do it in the manner or within the time agreed, 
 yet, if he acts in good faith, and the other party receives any 
 benefit from the work which is done, the law implies a prom- 
 ise by him to pay such sum therefor as the benefit which he 
 receives is reasonab'y worth to him. Snow vs. Ware, 13 Met., 
 42; Yeazie vs. Bangor, 51 Me., 509; Blood vs. Enos, 12 Yt, 
 625; ParTcs vs. Steed, 1 Lea (Tenn.), 206. 
 
 § 11. Entire Contract — Leaving witliont Good Cause. — The 
 
 court instructs the jury, that where one is hired for a definite 
 time and leaves his employer against his employer's consent,
 
 WORK, LAUOR AND SKRVICES. C19 
 
 and witliont his fault, before sncli time has expn-cd, he can 
 recover nothing for the work he has di>ne; and this rule holds 
 as well where the wages are coni[)uted by the n-onth, oi" week, 
 as where they are computed for a gross sum for the wliole 
 time. The contract in such cases is entire, and the perform- 
 ance of the whole service is a condition ]irecedent to the 
 laborer's right of recovery. 2 Pars, on Cont., SO; Miller vs. 
 Goddard, 34 Me., 102; Beabvs. Jloor, 19 Johns., 337; Webster 
 vs. Wade, 19 Cal., 291. 
 
 The court instructs 3'ou, that a contract to work for a given 
 number of months, at a fixed price per month, is an entire 
 contract for the whole number of months agreed upon, and 
 when a person agrees to work for another for a given number 
 of months, and to perform such services as are incident to his 
 employment, at a fixed price per month, if he quits such serv- 
 ice before the expiration of the number of months agreed 
 upon, witliont a good and sutficient cause, and without the 
 consent of his employer, he cannot recover for the work which 
 he has already performed. Ilensell vs. Errioksoii, 28 111., 257; 
 2 Pars, on Cont., 36. 
 
 The court instructs you, that where a party agrees to labor 
 for a year for a certain sum, he must labor for that time to be 
 entitled to any compensation, unless he leaves with the con- 
 sent of his employer, or the treatment and conduct of the em- 
 ployer towards him is such as to reasonably justify him in 
 leaving. If he quits before the expiration of the time for 
 which he agreed to labor, without any sufficient cause, or for 
 any cause which he has himself wrongfully provoked, he can- 
 not recover for the time he has labored. 
 
 § 12. Payment a Condition Precedent. — If the jury believe, 
 from the evidence, that the services claimed and sued for in 
 this suit, were rendered under a contract to work for a longer 
 time than the plaintiff did work, and that the defendant was 
 to make monthly payments for such services, by the terms of 
 the same contract, and that he failed to make such payments 
 as stipulated, then, upon such failure, the plaintiff had a right 
 to abandon the service and to collect of the defendant what 
 the services rendered would amount to at the stipulated price. 
 FollioU vs. Hunt, 21 111., 654.
 
 G20 WORK, LABOR AND SERVICES. 
 
 § 13. Burden of Proof. — If tlie jury believe, from tlie evi- 
 dence, that the plaintiff made a contract with defendant to 
 work for him {eight) months from, etc. (or to work from that 
 time nutil defendant's corn should be gathered in the fall), at 
 an agreed price per month, and if the jury further believe, 
 from tlie evidence, that before the end of the term so agreed 
 upon the plaintiff left the employ of the defendant, then the 
 burden of proof is upon the plaintiff to show, by a preponder- 
 ance of evidence, that he left with defendant's consent, or was 
 discharged by him, or that the plaintiff had just and reasonable 
 cause for leaving when he did, otlierwise he can recover noth- 
 ing for the work done under such contract. 
 
 § 14. Pretext for Leaving. — If the jury believe, from the 
 evidence, that the plaintiff agreed to work for the defendant, 
 at a stipulated price for the period of {one year)^ if they could 
 agree, then, in order to justify the plaintiff in leaving defend- 
 ant's service before the expiration of that period, if it appears 
 from the evidence tliat he did so leave, there must have been 
 some good reason for disagreeing with, and becoming dissat- 
 isfied with, tiie defendant. The plaintiff would have no right 
 to manufacture a pretext for disagreeing with the defendant, 
 and then take advantage of that. Whether such good reasons 
 did exist in this case is a question of fact to be determined by 
 the jury from the evidence. 
 
 § 15. Must be Substantial Cause for Leaving, etc.^ — The court 
 further instructs the jury, that when a ]}erson hires out to 
 work for another for a certain fixed time, he has no right, on 
 account of any frivolous or fanciful disagreement with his 
 employer, or liis employer's family, to break such contract 
 and leave his employer's service. In order to justify sucli 
 leaving there must be some good and substantial cause, wliich 
 the jury can say, from the evidence, would justify a reason- 
 able person in leaving such employment, or else the employer 
 must in some manner prevent or waive a further performance 
 of the contract. 
 
 Note. — The doctrine announced in the foregoing instructions regarding 
 the right of recovery of an employe, leaving his employer's service without 
 good cause, before the expiration of the time tor which he was hired, is not
 
 WOKK, LAnOR AND SERVICES. 621 
 
 acknowledged in some states. Tt is hi-ld, in these states, that, in such cases, 
 if the employer has derived any benefit from the hxbor performed, over and 
 above the damage resulting to him from the breach of the contract, the law, 
 thereupon, raises an implied promise to pay to the extent of the reasonable 
 worth of the excess. In such cases the next live instructions will be 
 proper. 
 
 § 16. Entire Contract — Rnle of Damages. — The law is, that 
 when a person agrees to work for another for a fixed and def- 
 inite period, and he performs labor under such coTitract which 
 is of benefit or value to the employer, and then leaves before 
 the expiration of the term for which he was hired, without 
 his employer's consent and without reasonable cause, altliough 
 he cannot enforce payment, according to the contract, he is 
 entitled to recover what his services are reasonably worth, 
 over and above the damages sustained by the employer from 
 the breach of the contract by the laborer, less any payments 
 which may have been made on the contract. 2 Pars, on 
 Cont., 38; Pixie?' vs. Nichols^ 8 la., 106; Briitoii vs. Tur- 
 ner, 6 N. H., 481; Fentoii, vs. CUrle, 11 Yt., 560; Ralston 
 vs. Kohl, 30 Ohio St., 92; Eakiii vs. Harrison, 4 McCord, 
 249. 
 
 If you believe, from the evidence, that the plaintiff per- 
 formed any work for defendant, as claimed, and that the 
 services were of any benefit to the defendant, and that the 
 same have not been fully paid for, then, although you may 
 further find that the work was done under an agreement to 
 work for a definite time, at a given price, and that plaintiff 
 left such employment before the expiration of that time, with- 
 out defendant's consent, and without any good or reasonable 
 cause therefor, still, the plaintiff is entitled to receive ])ay for 
 such services what they were reasonably worth; unless you 
 further believe, from the evidence, that the defendant sus- 
 tained damage inconsequence of plaintiff's so leaving, in which 
 case plaintiff will be entitled to recover what such services were 
 reasonably worth over and above such damages, if anything, 
 less the payments which have been made thereon, if any are 
 shown by the evidence. 
 
 If you believe, from the evidence, that plaintiff performed 
 labor for the defendant, as claimed by him, and that such labor 
 was performed under a contract to work for defendant for a
 
 622 WORK, LAEOE AND SEKVICES. 
 
 fixed and definite period of time, and that sucli services were 
 of benetit or value to the defendant, and have not been paid 
 for in full, and, further, that plaintiff left defendant's employ 
 before the expiration of said peiiod of time withuut any good 
 or reasonable cause therefor, then the plaintiff is entitled to 
 recover what such services were reasonably worth, if anything, 
 over and above the damages sustained by the defendant, if any 
 are shown by the evidence to have been sustained by him, on 
 account of the plaintiffs so leaving, less any payments which 
 have been made to the plaintiff on account of such work, if 
 any are sliown by the evidence. 
 
 The court instructs you, as a matter of law, that if one per- 
 son agrees to work for another for a fixed and definite period 
 of time, at an agreed price, to be paid at the expiration of the 
 time, or from time to time, as the work progresses, and the 
 laborer leaves the service of his employer before the expira- 
 tion of the full time of his employment, without some good 
 and reasonable cause therefor, and against the will of the em- 
 ployer, then he will only be entitled to receive for the work 
 actually done what the same was reasonably worth, over and 
 above tlie damages, if any, sustained by the employer, in con- 
 sequence of the laborer leaving before the time fixed in that 
 belialf. 
 
 If you believe, from the evidence, that some time on or 
 about, etc., the plaintiff and defendant entered into a contract 
 by which the plaintiff agreed to work for the defendant for 
 
 the period of months from, etc., at the agreed price of 
 
 $ per month, to be paid monthly, and that the work sued 
 
 for in this case was done under that contract, and if you fur- 
 ther believe, from the evidence, that without any good or 
 reasonable cause therefor the plaintiff left the defendant's em- 
 ploy before the expiration of the time fixed in the contract, 
 and without the consent of defendant, and that the defendant 
 was thereby damaged, then the plaintiff can only recover the 
 reasonable value of his services over and above such damage; 
 and if you believe, from the evidence, that such services were 
 reasonably worth no more than the amount of such damage, 
 then you should find for the defendant. 
 
 § 17. Must Demean Himself Respectfully. — The court instructs 
 the jury, that when a person is employed by another he nuist,
 
 WOKK, LACOE AND SERVICES. 023 
 
 in Ills intercourse witli liis employer and those Lavinoj control 
 of his business, and with those doing business with such em- 
 ployer, abstain from all vulgarity and obscenity of language 
 and conduct, if required to do so, and must be respectful and 
 obedient to the reasonable commands of his employer and 
 those having control of his business. And a failure in anj' of 
 these requirements would be good ground for discharging such 
 person before his term of em[)loyment expires. Ilamlbi et al. 
 vs. Race, 78 111., 422; Brink y&] Fay, 7 Daly (K Y.), 5C2. 
 
 § 18. Leaving on Account of Sickness. — The jury are in- 
 structed, that even if they believe, from the evidence that the 
 work sued for in this case was done under a special contract, 
 by which the plaintiff agi-eed to work for a fixed and specified 
 time, and that plaintiff left defendant's employ before the ex- 
 piration of that time, still, if the jury further believe, from 
 the evidence, that plaintiff" was compelled to so quit work on 
 account of sickness (or on account of sore eyes), then he would 
 be entitled to recover for the time he actually did work at the 
 agreed price, if the jury find, from the evidence, that there 
 was an agreed price between the ])arties; and if the jury find 
 there was no agreed price, then what such labor was reasonably 
 worth. HuUbard vs. Belden, 27 Yt., 645; Green vs. Gilbert, 
 21 Wis., 395. 
 
 § 19. Discharged or Compelled to Leave, etc. — The court in- 
 structs the jury, that while the law is that a person who en- 
 gages to labor for another for a si^ecified period, at a given 
 price, has no right to recover for his work, etc., unless he per- 
 forms his entire contract, or is excused therefrom by the em- 
 ployer, or is, in some manner, justified in quitting before the 
 expiration of the time; yet if he is prevented from performing 
 his contract by the employer, or is discharged from his em- 
 ployment, or is, from ill-usage, compelled to abandon the serv- 
 ice, he may then recover what his labor, actually performed, 
 will amount to at the contract price. Angel vs. Hanna, 22 
 111., 429; Mitchell vs. Scott, 41 Mich., 108; Webb vs. U. M. 
 L. Ins. Co., 5 Mo. App., 51. 
 
 § 20. Discharge without Good Cause — Measure of Damages. — 
 
 That when one person hires another to work for him for a
 
 624 WOEK, LAEOE AND SERVICES. 
 
 definite, fixed time, at an agreed price for the wliole time, or 
 at so much per month, the employer cannot legally discharge 
 the workman without his consent, or without some good and 
 reasonable cause, until the expiration of such time; and if he 
 does do so he will still be liable to the workman for the full 
 amount of his wa::;es for the whole time covered by the origi- 
 nal agreement, except that in case the workman earns any- 
 thing, or by reasonable exertion and effort might have earned 
 something during the unexpired portion of the time, then 
 the employer will be entitled to a credit for the sum so 
 earned, or that might have been earned, by the use of reason- 
 able effort and diligence directed to that end. Foioler vs. 
 Armour^ 24 Ala., 194; King v^. Steir^en, 4:4: Penn. St., 99; 
 Jiicks vs. Yates, 5 Ind.. 115. 
 
 If you believe, from the evidence, that on or about, etc., 
 the defendant employed the plaintiff to make cheese for him 
 during the cheese-making season of A. D. 18 — , and agreed 
 
 to pay him for his services at the rate of $ per day, and 
 
 that afterwards the plaintiff commenced to work for defend, 
 ant under said contract, and that, before the end of such season, 
 defendant discharged plaintiff from such employment without 
 the fault of the plaintiff, and against his will, then the plaint- 
 iff is entitled to recover, at the rate of S per day, for all 
 
 that portion of the unexpired term after said discharge, during 
 which, the evidence shows, he was necessarily unemployed by 
 reason of such discharge, if you believe, from the evidence, 
 that he was during any portion of said time necessarily unem- 
 ployed by reason of such discharge. 
 
 § 21. Workman Must Avoid Unnecessary Damaj^e. — The court 
 instructs the jury, that when a person hired to work for an- 
 other for a fixed and definite time is wrongfully discharged 
 by his employers before the time expires, he must use all rea- 
 sonable means and efforts to find other employment during 
 the unexpired time covered by the contract, so as to avoid 
 imnecessary damage to himself by reason of such discharge. 
 The object of the law in such cases is to pay the workman 
 for the labor performed by him, and also to compensate him 
 for any damage resulting to him from such discharge, and
 
 WOEK, LABOR AND SERVICES. 625 
 
 wliicli could not be avoided by reasonable effort on liis part. 
 Ilearne vs. Garrett^ 49 Tex., G19. 
 
 § 22. Services by a Member of the Family. — The court instructs 
 the jury, tliat while it is the general rule of law, that where 
 one renders services for another, which are accepted by the 
 other, the law will imply a promise to pay for such services; 
 yet,, if such services are rendered by one who is a member of 
 the family, receiving support therein as such, then no such 
 implication arises; nor can a recovery be had for services so 
 rendered, except upon evidence, showing a promise to pay for 
 the same, or such facts and circumstances as lead the jury to 
 believe, from the evidence, that it was understood by the 
 parties that the services were to be paid for. ThorpYS,. Bate- 
 man, 37 Mich., 68; Smith vs. Johnson, 45 la., 308; Sprague 
 vs. Waldo, 38 Yt, 139; Davis vs. Goodenow, 27 Yt, 715; 
 Earjs vs. McConnell, 42 Ind., 285. 
 
 If you believe, that during the time in question, the plaint- 
 iff was living in defendant's family as a member thereof, that 
 he was clothed and fed by defendant, that he was cared for 
 in sickness and in health by other members of defendant's 
 family, and in all respects treated as a member of the family, 
 then the law will not imply a promise on the part of the de- 
 fendant to pay for the services rendered during that time, and 
 in such case he should not recover for such services; unless you 
 further believe, from the evidence, that defendant has prom- 
 ised to pay for the same, or unless the facts and circumstances 
 proved lead you to believe, from the evidence, that there was 
 an understanding between the parties that plaintiff was work- 
 ing for wages. 
 
 If you believe, from the evidence, that plaintiff was a mem- 
 ber of defendant's family during the whole of the time for 
 which the services in question are charged, and was treated 
 and cared for the same as the other members of his family, 
 then there is no implied promise raised to pay for any services 
 he may have performed, simply from the fact that defendant 
 accepted the services and received tlie benefit thereof. 
 
 § 23. Stranger a Member of the Family. — If the jury believe, 
 from the evidence, that the plaintiff worked for defendant, and 
 40
 
 626 \70KK, lal;ok and services. 
 
 that liis time and labor were reasonably worth more than his 
 board and washing, then the plaintiff is entitled to recover 
 what his time and services were reasonably worth, over and 
 above what he has received or been paid, if any thini^, as shown 
 by the evidence; unless the evidence further shows that the 
 plaintiff agreed to do the work for his board and washing, or 
 that there was some other special contract between the parties 
 fixing the price of the labor. Wells vs. Perkins^ 43 "Wis., 
 160; Sword vs. Keith, 31 Mich., 247. 
 
 If you believe, from the evidence, that the plaintiff per- 
 formed labor for the defendant for which he has not been 
 paid, and that such labor and services were reasonably worth 
 more than the price of his board and washing, then, before 
 the defendant can avail himself of the defense that plaintiff 
 agreed to work for his boai-d and washing, the defendant must 
 prove the existence of such a contract by a preponderance of 
 evidence. And if you find that the evidence bearing upon 
 this point is in favor of the plaintiff", or that it is equally bal- 
 anced, then you should allow the plaintiff' what his services 
 were reasonably worth, over and above what he has had, as 
 shown by the evidence. 
 
 § 24. Services of Child. — The court instructs the jury, that 
 although a child may be over age, still, as long as the relation 
 of parent and child continues to exist the same as before he 
 became of age, the law raises no implied promise to pay for 
 the services of the child. Ililler vs. Miller, 16 111., 296; 
 Hart vs. Hess, 41 Mo., 441; ^Vells vs. Perlins, 43 Wis., 160; 
 Adams vs. Adams, 23 Ind., 50; Smith vs. Smith, 30 IST. J. Eq., 
 564. 
 
 If you believe, from the evidence, that the plaintiff con- 
 tinued to reside with his father after becoming of age, and was 
 treated as a member of the family the same as before coming 
 of age, then, to entitle him to recover for services performed 
 during that period of time, you must believe, from the evi- 
 dence, that at the time the services wee rendered, it was 
 expected by both parties that he should be paid for such serv- 
 ices, or else that the circumstances were such as to reason- 
 ably justify the plaintiff in expecting pay for his services. 
 
 If you believe, from the evidence, that when the services
 
 woKK, la:.or and services. 627 
 
 in question were performed, the plaintiff lived with liis father, 
 tlie same as his other children did, and appai-ently the same as 
 lie had done before coming of age ; then to entitle him to 
 recover, it is incumbent upon the plaintiff to prove, by a pre- 
 lionderance of evidence, an express hiring or promise to pay, 
 or circumstances from which snch hiring or promise may 
 reasonably be inferred. Steel vs. Steely 12 Penn. St., 0-i; 
 nihlish vs. Hihlish, 71 Ind., 27. 
 
 Ordinarily when one person does work for another who 
 knowingly permits the work to be done for him and he 
 receives the benefit thereof, the law raises a presinnption that 
 the laborer is to be paid for his labor, but there is no such 
 presumption between father and son while living together in 
 the same family and one does work for the other. 
 
 If you believe, from the evidence, that the plaintiff was 
 living with his father as a member of his father's family wdien 
 the work in question was done, then it is not enough that the 
 plaintiff intended or expected to be paid for his labor — this 
 intention or expectation must have been mutual. It is not 
 necessary that there should have been any express contract in 
 so many words between the parties, but besides the mere 
 doing of the work imder the direction of the father, in order 
 to warrant a verdict for the plaintiff, the jury must believe, 
 from the evidence, that when the work was done there was an 
 expectation of receiving i;ay on the j\art of the plaintiff and 
 an intention to pay on the part of the father. Jliblish vs. 
 HihlisK 71 Ind., 27. 
 
 § 25. When Promise may be Inferretl. — If the Jury believe, 
 from the evidence, that the plaintiff, after becoming of age, 
 and during the time in question, was treated differently from 
 the other children of the family, and did the work of a serv- 
 ant, and was treated as such, then these are circumstances 
 which the jury may consider, with all the other evidence in 
 the case, in determining whether the parties expected and 
 understood that compensation should be made for plaintiff's 
 labor and services. 
 
 § 26. Emancipation of Minor. — A father, by agreement with 
 his minor child, may relinquish to the latter the right which
 
 62S WOKK, LAEOE AND SERVICES. 
 
 he would otherwise have to his services, and may authorize 
 those who employ him to pay liim his wages, and he will then 
 have no right to demand those wages, either from the em- 
 ployer or from the child. Monaghan vs. School Dist.^ etc., 
 38 Wis,, 100. 
 
 You are instructed, that while it is in general true that a 
 father is entitled to the services and earnings of his son, until 
 he arrives at the age of twenty-one years, still, the father may 
 emancipate his minor son, and by agreement with him relin- 
 quish the right which he would otherwise have to the son's 
 services and earnings. And this the father may do, although 
 he is insolvent at the time. Wamlold vs. Ylcl^^ 50 Wis., 456. 
 If you believe, from the evidence, that A. B., the son of 
 the plaintiff, made a contract upon his own account with the 
 defendant, by which he agreed to work for the defendant 
 from, etc., and defendant was to pay him, etc., and that the 
 work for which this suit is brought was done by the said A. 
 B. under said contract, and if the jury further believe, from 
 the evidence, that such contract for services by the said A. B. 
 was made with the knowledge and consent of the said plaintiff, 
 or that the plaintiff knew of the existence of such contract 
 while the work was progressing, and did not repudiate the 
 contract or notify the defendant of his objection thereto, then 
 the son was entitled to receive his own earnings, and a pay- 
 ment to the son would be a good payment. Burdsall vs. 
 Waggoner, 4 Col., 261. 
 
 § 27. Minor Can only DisafTirm Contrart after Majority — {By 
 
 Statute). — By the laws of this state a minor is bound by his 
 contracts unless he disaffirms them within a reasonable time 
 after attaining his majority ; disaffiiniance before majority is 
 of no effect. If a minor renders personal services under a 
 contract, and accepts payment for them according to the con- 
 tract, he cannot maintain an action by his next friend to 
 recover again. Murj^hy vs. Johnson, 45 la., 57; Jones vs. 
 Jones, 46 la., 466. 
 
 § 28. Gratuitous Labor, — That while the law will in general 
 hold a party for whom work has been i)erformed, with his 
 knowledge and consent, liable to pay for the same, yet a party
 
 WORK, LAi:OR AND SERVICES. 629 
 
 is under no obligation to pay for work done by one wlio vol- 
 unteers to do it without ])ay, or as a gratuity; and tlie fact 
 that such work has been beneficial to the party for whom it 
 was done, creates no obligation to ]iay for it, if, at the time 
 it was being done, it was understood by the parties to be gra- 
 tuitous. 
 
 If you believe, from the evidence, that the plaintiff made 
 his home at defendant's house during the time for which he 
 claims pay for his services, and that he did not, at that time, 
 intend to charge the defendant for the services he rendered, 
 and both the parties regarded the same as a donation, or as an 
 equivalent for living at defendant's house, then he cannot re- 
 cover for such services in this suit. Broxighton vs. ISmwrt^ 59 
 III., 440; Morris vs. Barnes^ 35 Mo., 412. 
 
 Labor done, and services rendered by one person for an- 
 other, without the knowledge or request of the person for 
 whom the work is done or service rendered, no matter how 
 meritorious or beneficial to the latter, afford no ground of ac- 
 tion in favor of the person doing the work, or rendering the 
 service. Bartholomew vs. Jaclison, 20 John., 28. 
 
 And in this case, though you may believe, from the evi- 
 dence, that the plaintiff rendered services which were of value 
 and beneficial to the defendant in saving his crops, still, if 
 you further believe, from the evidence, that such services 
 were rendered without the knowledge or request of the de- 
 fendant, and that he has never agreed to pay for the same, 
 then the plaintiff cannot recover for such services. Coe vs. 
 Wager, 42 Mich., 49. 
 
 § 29. Agreed Price Must Govern. — If the jury believe, from 
 the evidence, that the plaintiff rendered the services for the 
 defendant, as claimed and sued for in this case, at an agreed 
 price, and that he has not been fully paid for the same, then 
 the jury should render a verdict in favor of the plaintiff for 
 such an amount as the services actually rendered would come 
 to at the stipulated price, less such an amount as the jury be- 
 lieve, from the evidence, has been paid thereon. 
 
 § 30. Contract, Presumed to Continne, When. — The court in- 
 structs the jury, that where a person enters the employ of
 
 630 WOKK, LAEOK AND SEIiYICES. 
 
 another nncTer a special contract, fixinf^ the time of service and 
 the price to be paid therefor, and he continues in such em- 
 ployment after the term has ended, without any new contract 
 or agreement, he will be considered as holding under the 
 original contract, so far as the price of his labor is concerned. 
 G. & B. S. Ilch. Co. vs. BulHey, 48 111., 189; Vail vs. N. 
 e/"., etc.^ Co., 32 Barb., 504; Ranch vs. Albright^ 36 Penn St., 
 367. 
 
 If you believe, from the evidence, that there was no con- 
 tract between plaintiff and defendant that plaintiff should work 
 for defendant for any definite period of time, you should find 
 for the plaintiff for the time he did work, if any, at the rate 
 per month agreed upon, if you find, from the evidence, that 
 any price was agreed upon between the parties. 
 
 § 31. Evidence of Reasonable AVortli. — If the jury believe, 
 from the evidence, that the plaintiff did the work in question, 
 as claimed, and that there was no special contract as to the 
 price, then, in coming at the vahie of the services, the jury 
 should take into account the nature of his employment, the 
 kind of service required of him, and the degree of care and 
 attention bestowed by him on the defendant's affairs, so far as 
 these things have been shown by the evidence, if they do so 
 appear. 
 
 If, in this case, you find for the plaintiff, and you believe, 
 from the evidence, that no special price was agreed upon, then, 
 in arriving at the value of the services, you should consider 
 the means of knowledge of such value i)ossessed by the several 
 witnesses who have testified in relation to such value. Those 
 witnesses who helped to do the Avork, if any such are shown 
 by the proof, all things being equal, would generally afford 
 better and more reliable evidence of such value than those 
 who speak from theory or general knowledge only, especially 
 if the evidence shows that they never did such work or saw it 
 done. 
 
 § 32. Burden of Proof of Payment. — The juiy are instructed, 
 that the burden of proof as to any payment claimed to have 
 been made to the plaintiff for services rendered, is upon the 
 defendant. And in case of a conflict of testimonv as to such
 
 WOKK, LAl^OR AND SERVICES. 631 
 
 payments, the rule of law is, that if the weight of evidence 
 against the payment exceeds, or even only equals the weight 
 of evidence in favor of their having been made, then the jury 
 should consider such payments not proved. 
 
 § 33. Offer to Compromise. — The jury are instructed, that the 
 plaintiff is in no manner bound by any offer that he may have 
 
 made to accept $ in settlement of his claim; provided the 
 
 jury believe, from the evidence, that such offer was made 
 solely for the purpose of bringing about an amicable settle- 
 ment with defendant, or by way of compromise; nor in such 
 case should such offer be regarded as an adinission that no 
 more than that sum was due. Monell vs. Burns, 4 Deuio, 
 121. 
 
 § 34. Effect of Pleading Set-Off.— The court instructs the 
 jury, that the defendant has pleaded in this case a plea of set- 
 oft", accompanied by a bill of particulars, in which he has 
 charged the plaintiff for board and clothes, etc., daring the 
 entire period of time in question, and the fact of pleading 
 such plea and making such charges are circumstances proper 
 to be taken into consideration by the jury, together with, all 
 the evidence in the case, in determining whether or not it was 
 understood by defendant at the time that plaintiff was ])erform- 
 ing the services in question without any expectation of pay 
 therefor. 
 
 The court instructs you, that the defendant has pleaded in 
 this case non-assumpsit and set-oft"; that by tlius pleading the 
 defendant does not admit the contract relied upon by the 
 plaintift"; an implied contract as well as a special contract is 
 denied by the plea of non-assumpsit, and the plaintiff is 
 required to prove h's case, by a preponderance of the evidence^ 
 before he is entitled to recover, notwithstanding the plea of 
 set-off; and unless you find the greater weight of evidence in 
 favor of the plaintiff's claim, you should find for the defend- 
 ant. 
 
 One promise is a sufficient consideration to support another 
 promise, and where a person does an act beneficial to another, 
 or agrees to do so, that forms a sufficient consideration to 
 support an agreement to pay for the same.
 
 632 WOKK, LABOK AND SEEVICES. 
 
 § 35. Written Contract Variod by Parol. — A contract under 
 seal may be charged by a subsequent verbal agreement to pay 
 an additional sum for the same work and materials mentioned 
 in the agreement. And in this case, if the jury believe, from 
 the evidence, that there was a subsequent verbal agreement 
 between the parties, varying the terms of the written agree- 
 ment, and that the work in question was done in compliance 
 with the latter agreement, it will be binding between the 
 parties. Cook vs. Mur^hyylO 111., 96; Seaman vs. 0' Ilarra, 
 29 Mich., 66.
 
 CHAPTER L. 
 
 GENERAL INSTEUCTIONS IN CRIMtN[AL CASES. 
 
 Sec. 1. Presumption of innocence — Degree of proof. 
 
 2. Every allegation must be proved. 
 
 3. Prisoner entitled to every reasonable hypothesis. 
 
 4. Probability not sufficient. 
 
 5. Preponderance of evidence not sufficient. 
 
 6. Crime must be proved beyond a reasonable doubt. 
 
 7. All the evidence should be considered. 
 
 8. The guilty ninety-nine. 
 
 9. The jury should endeavor to reconcile testimony. 
 
 10. Want of motive. 
 
 11. Accused under no obligation to testify. 
 
 12. Failure to testify — No presumption against the defendant. ' 
 
 13. Testimony of accused to be weighed by the jury. 
 
 14. Testimony of the accused should be considered by the jury. 
 
 15. Circumstantial evidence competent. 
 
 16. Circumstantial evidence defined. 
 
 17. Facts must all be consistent with guilt and inconsistent with in- 
 
 nocence. 
 
 18. Degree of certainty required, 
 
 19. One fact inconsistent with guilfc. 
 
 20. Direct evidence not required. 
 
 21. Admission in criminal cases — Must all be taken together. 
 
 22. Confessions must be treated like other evidence. 
 
 23. Confessions to be received with caution. 
 
 24. Confessions, when corroborated. 
 
 25. When sufficient to convict. 
 
 26. Testimony of accomplice. 
 
 27. Fabrication of testimony. 
 
 28. Contradictory and inconsistent statements. 
 
 29. One witness sufficient, when. 
 
 80. The crime charged must be proved. 
 
 31. Statements of prosecuting attorney not based on evidence. 
 
 . 32. Reasonable doubt defined. 
 
 33. Duty of the jury to determine doubts. 
 
 34. Reasonat'le doubt in circumstantial evidence. 
 
 35. Attempt to escape — How considered. 
 
 36. Jury the judges of the law in some States. 
 
 37. Alibi, proof of. 
 
 38. Alibi need not be proved beyond a reasonable doubt. 
 
 (633)
 
 634 GENERAL INSTKUCTIONS IN CRIMINAL CASES. 
 
 39. Alibi — Burden of proof. 
 
 40. Doubt as to identity of defendant. 
 
 41. Proof of identity. 
 
 42. Good character presumed. 
 
 43. Former good character proved. 
 
 44. Omission to prove good character. 
 
 45. Proof of good character — Effect of. 
 
 46. Proof of good character, vs^hen proper. 
 
 47. Guilt proved, notwithstanding good character. 
 
 XoTE. — The rules already given under the head of " Credibility of Wit- 
 nesses — Weight of Testimon}-," apply, in the main, equally to civil and 
 criminal suits. The following rules, relating to degree of proof and weight 
 of evidence, apply more especially to criminal prosecutions. 
 
 § 1. Presumption of Innocence — Degree of Proof. — The court 
 instructs tlie jury, that, in this case, the law raises no pre- 
 sumption against the prisoner, but every presumption of the 
 law is in favor of his innocence; and, in order to convict him 
 of the crime alleged in the indictment, or of any lesser crime 
 included in it, every material fact necessary to constitute such 
 crime must be proved beyond a reasonable doubt; and if the 
 jury entertain any reasonable doubt upon any single fact or 
 element necessary to constitute the crime, it is your duty to give 
 the prisoner the benefit of such doubt, and acquit him. S)iy- 
 der vs. State^ 59 Ind., 105. 
 
 § 2. Every Allegation Must be Proved. — The court instructs 
 the jury, that it is incumbent upon the prosecution to prove 
 every material allegation of the indictment as therein charged. 
 Nothing is to be presumed or taken by implication against 
 the defendant; the law presumes him innocent of the crime 
 with which he is charged until he is proven guilty beyond a 
 reasonable doubt by competent evidence. And if the evidence, 
 in this case, leaves upon the minds of the jury any reasonable 
 doubt of defendant's guilt, the law makes it your duty to acquit 
 him. 
 
 § 3. Prisoner Entitled to Eveiy Reasonable Hypotbesis. — The 
 
 defendant is entitled to every presumption of innocence com- 
 patible with the evidence in the case, and if it is possible to 
 account for the death of the deceased ui)on any reasonable 
 hypothesis other than that of the guilt of the defendant, then
 
 GENEKAL INSTEUCTIONS IN CRIMINAL CASES. 635 
 
 it is your duty to so account for it, and find the defendant 
 not guilty. 
 
 § 4. Probability not Siifiioiont. — The court instructs tlie jury, 
 that in criminal cases, even where the evidence is so strong 
 tliat it demonstrates the probability of the guilt of the party 
 accused, still, if it fails to establish, beyond a reasonable doubt, 
 the guilt of the defendants, or of one or more of them, in 
 manner and form as charged in the indictment, then it is the 
 duty of the jury to acquit any defendant or defendants, as to 
 whose guilt they entertain such reasonable doubt. 
 
 § 5. Preponderance of Evitlence not Sufficient. — That, in law, 
 the accused is always presumed to be innocent until his guilt 
 is established by evidence; and to authorize a conviction, such 
 guilt nmst be established beyond a reasonable doubt — a mere 
 preponderance of evidence is not sufficient. 
 
 § 6. Crime Must be Proved Beyond a Reasonable Donbt. — The 
 
 court instructs the jury, that before a conviction can be right- 
 fully claimed by the people, in this case, the truth of every 
 material averment contained in the indictment must be proved 
 to the satisfaction of the jury, beyond any reasonable doubt. 
 That, as a matter of law, the defendants are presumed to be 
 innocent of the crime charged in the indictment until such 
 time as the guilt of the parties charged is proved, as alleged, 
 by competent evidence, beyond any reasonable doubt, dress- 
 ier vs. The People, 117 111., 424. 
 
 § 7. All the Evidence Should be Considered. — That in order to 
 fairly determine whether the defendants are proven guilty of 
 the crime of {hurglarif), in manner and form as charged in the 
 indictment, beyond any reasonable doubt, as the law requires, 
 the jury should take into consideration all of the evidence 
 elicited from the defendants' witnesses, as well as that detailed 
 for the prosecution ; and if, after a full and dispassionate con- 
 sideration of- all the evidence in the case, you still entertain 
 any reasonable doubt as to whether the defendants, or any of 
 them, committed the crime, in manner and form as charged in 
 the indictment, then you should acquit the person or persons 
 as to whose guilt you entertain such reasonable doubt.
 
 636 GENERAL INSTEL'CTIONS IN CRIMINAL CASES. 
 
 § 8. The Guilty Ninety-Nine. — The policy of our law deems 
 it better that many guilty ])ersoDS should escape rather tlian 
 one innocent person should be convicted and punished; so 
 that, unless you can say, after a careful consideration of all the 
 evidence in tlie case, that every material allegation of the 
 indictment is proved beyond a reasonable doubt, you should 
 Hud the defendant not guiltj. 
 
 § 9. Jury Should Endeavor to Reconcile Testimony. — The jui'j 
 are instructed, that in passing upon the testimony of {defend- 
 ants) witnesses, in this case, they should endeavor to reconcile 
 their testimony with the belief that all the witnesses have 
 endeavored to tell the truth, if they can reasonably do so under 
 the evidence, and if reasonably possible attribute any differ- 
 ences or contradictions in their testsmony, if any exist, to 
 mistake or misrecollectioUj rather than a willful intention to 
 swear falsely. 
 
 § 10. Want of 3Iotive. — That when the evidence fails to 
 show any motive to commit the crime charged, on the [ ai-t of 
 the accused, this is a circumstance in favor of his innocence. 
 
 And, in this case, if the jury Und, upon careful examination 
 of all the evidence, that it fails to show any motive, on the 
 part of the accused, to commit the crime charged against him, 
 then this is a circumstance Mhicli the jury ought to consider in 
 connection with all the other evidence in the case in making 
 up their verdict. Clough vs. State, 7 Keb., 320. 
 
 § 11. Accused under no Obligation to Testify. — The court in- 
 structs the jury, that while the statute of this state provides 
 that a person charged with crime may testify in his own be- 
 half, he is under no obligation to do so, and tlie statute 
 expressly declares that his neglect to testify shall not create 
 any presumption against him. 
 
 § 12. Failure to Testify — No Presumption against Defendant. 
 — The court instructs the jury, that while the statute of this 
 state provides that a person charged with crime may testify 
 in his own behalf, he is under no obligation to do so, and the 
 statute expressly declares that his neglect to testiiy shall not
 
 GENERAL INSTKL'CTIONS IN CKIMINAL CASES. G37 
 
 create any presumption against liim. Tlie jury should decide 
 the case with reference alone to testimony actually introduced 
 before them, and without reference to what might, or might 
 not, have been proved, if otlier persons had testified. 
 
 § 13. Testimony of the Accused to be Weighed by the Jury. — 
 
 The court instructs the jury, that altliough the law makes the 
 defendants in this case competent witnesses, still, the jury are 
 the judges of the weight which ought to be attached to their 
 testimony ; and, in considering what weight should be given 
 it, the jury should take into consideration all . the facts and 
 circumstances surrounding the case, as disclosed by the evi- 
 dence, and give the defendants' testimony only such weight as 
 they believe it entitled to, in view of all the facts and circum- 
 stances proved on the trial. Bressler vs. ThePeople,, 117 111., 
 441. 
 
 The law gives persons accused of crime the right to testify 
 in their own behalf, but their credibility and the weight to be 
 given to their testimony, are matters exclusively for the juiy; 
 therefore, in weighing the testimony of the defendants, A B 
 and C D, in this case, you have a right to take into consideration 
 the manner of testifying, the reasonableness or unreasonableness 
 of their account of the transaction, and interest in the result of 
 the case to them, as affecting their credibility. You are not 
 required to receive blindly the testimony of such accused per- 
 sons as true, but you are to consider whether it is true and 
 made in good faith, or only for the purpose of avoiding con- 
 viction. 
 
 The jury in criminal cases are not bound to believe the tes- 
 timony of the defendant any further than it may be corrobo- 
 rated by other credible evidence in the case. Ilirschman vs. 
 The Peo])le, 101 111., 568. 
 
 In determining the weight to be given to the testimony of 
 the different witnesses, you should take into account the inter- 
 est or want of interest they have in the case, their manner on 
 the stand, the probability or improbability of their testimony, 
 with all other circumstances before you which can aid you in 
 weighing their testimony. The defendant has testified as a 
 witness, and you should weigh his testimony as you weigh 
 that of any other witness. Consider his interest in the result
 
 63S GENERAL INSTRUCTIONS IN CRIMINAL CASES. 
 
 of the case, his manner, and the probabih'ty or the improba- 
 bility of his testimony. Anderson vs. The State, 104 Ind., 
 467. 
 
 The rule of law which throws around the defendant the 
 presumption of innocence, and requires the state to establish, 
 beyond a reasonable doubt, evej-y material fact averred in the 
 indictment, is not intended to shield those who are actually 
 guilty, from just and merited punishment, bnt is the humane 
 provision of the law, which is intended f(:>r the protection of 
 the innocent, and to guard, so far as human agencies can, against 
 the conviction of those unjustly accused of crime. Anderson 
 vs. State, 104 Ind., 467. 
 
 § 14. Testimony of the Accused Should be Considered by the 
 Jury. — That the jury have no right to disregard the testimony 
 of the defendant on the ground alone that he is a defendant, 
 and stands charged with the commission of a crime. The law 
 presumes the defendant to be innocent until he is proved 
 guilty; and the law allows him to testify in his own behalf) 
 and the jury should fairly and impartially consider his testi- 
 mony, together with all the other evidence in the case, and if, 
 from all the evidence, the jury have any reasonable doubt 
 whether, at the time of the shooting complained of, the pistol 
 was accidentally dischai-ged, they should give the defendant 
 the benefit of the doubt and acquit him. Moses vs. State, 58 
 Ala., 117; Nelson vs. Yorce, 55 Ind., 455; Bressler vs. People, 
 117 111., 441. 
 
 § 15. Circumstantial Evidence Competent, etc. — The court in- 
 structs the jury, that circumstantial evidence is legal and com- 
 petent in criminal cases; and if it is of such a character as to 
 exclude every reasonable hypothesis, other than that the de- 
 fendant is guilty, it is entitled to the same weight as direct 
 testimony. 
 
 If the jury believe, from the evidence, beyond a reasonable 
 doubt, that the defendant deliberately and intentionally shot 
 John Mann, in manner and form as charged, and as he was pass- 
 ing along the public highway, and that from the effects of such 
 shooting the said John Mann died, as charged in the indict- 
 ment, it meters not that such evidence is circumstantial, or
 
 GENERAL INSTRUCTIONS IN CRIMINAL CASES. G39 
 
 made up from facts and circiirastancos, provided, the jury be- 
 lieve such facts and ciiciimstunces pointing to his guilt, to have 
 been proven, beyond a reas^onable doubt, by the evidence. 
 Schoolcraft Y&. Peojple, 111 III., 277. 
 
 § 16. Circumstantial Evidence Defined. — The court further 
 instructs the jury, tliat what is meant by circumstantial evi- 
 dence in criminal cases, is the proof of such facts and circum- 
 stances connected with or surrounding the commission of the 
 crime charged, as tend to show the guilt or innocence of the 
 party or parties charged; and if these facts and circumstances 
 are sufficient to satisfy the jury of the guilt of the defendants, 
 or any of them, beyond a reasonable doubt, then such evidence 
 is sufficient to authorize a jury in finding a verdict of guilty, as 
 to such of the defendants as the jury are so satisfied, beyond 
 a reasonable doubt, from the evidence, are guilty. Law vs. 
 State, 33 Tex., 37. 
 
 § 17. Facts Must all be Consistent with Guilt and Inconsistent 
 witli Innocence. — The jury are instructed, as a matter of law, 
 that where a conviction for a criminal offense is sought upon 
 circumstantial evidence alone, the people must not only show, 
 by a preponderance of evidence, that the alleged facts and cir- ' 
 cumstances are true, but they must be such facts_ and circum- 
 stances as are absolutely incompatible, upon any reasonable 
 hypothesis, with the innocence of the accused, and incapable 
 of explanation, upon any reasonable hypothesis, other than 
 that of the guilt of the accused. 1 Greenl. on Ev., § 12. 
 
 In criminal cases, where the prosecution rely upon circum- 
 stantial evidence alone for a conviction, it is not enough that 
 all the circumstances proved are consistent with and point to 
 the defendant's guilt. To authorize a conviction upon cir- 
 cumstantial evidence alone, the circumstances must not only 
 all be in harmony with the guilt of the accused, but they 
 must be of such a character that they cannot reasonably be 
 true, in the ordinary nature of things, and the defendant be 
 innocent. Com. vs. Goodwin, 14 Gray, 55. 
 
 To authorize a conviction on circumstantial evidence alone, 
 the circumstances should not only be consistent with the 
 prisoner's guilt, but they must be inconsistent with any other
 
 640 GENERAL INSTRUCTIONS IN CRIMINAL CASES. 
 
 rational conclusion, or reasonable hypothesis, and snch as to 
 leave no reasonable doubt in the minds of the jury of the 
 defendant's guilt. 
 
 § 18. Degree of Certainty Required. — The rule of law is, that 
 to warrant a conviction on a criminal charge upon circumstan- 
 tial evidence alone, the circumstances should be such as to 
 produce nearly the same degree of certainty as that which 
 arises from direct testimony, and sufficient to exclude all rea- 
 sonable doubt of the party's guilt. The circumstances ought 
 to be of such a nature as not to be reasonably accounted for 
 on the supposition of the prisoner's innocence, but be per- 
 fectly reconcilable with the supposition of his guilt. People 
 vs. Padillia, 42 Cal., 535, 
 
 The court instructs the jury, that it is an invariable rule of 
 law, that to warrant a conviction for a ci'iminal offense upon 
 circumstantial evidence alone, such a state of facts and cir- 
 cumstances must be thown as that they are all consistent with 
 the guilt of the party charged, and such that they cannot, 
 upon any reasonable theory, be true and the party charged be 
 innocent. Beavers vs. State, 58 Ind., 530; Block vs. State, 1 
 Tex. App., 368. 
 
 § 19. One Fact Inconsistent with Gnilt. — The jury are in- 
 structed, that where the prosecution relies upon circumstantial 
 evidence alone for a conviction, the jury must be satisfied, be- 
 yond a reasonable doubt, that the crime has been committed 
 by some one, in manner and form as charged in the indictment; 
 and then they must not only be satisfied that all the circum- 
 stances proved are consistent with the defendant's having 
 committed the act, but they must also be satisfied that the 
 facts are such as to be inconsistent with any other rational 
 conclusion, than that the defendant is the guilty person. 
 
 If there is any one single fact proved to the satisfaction of 
 the jury, by a preponderance of evidence, which is inconsistent 
 with the defendant's guilt, this is sufficient to raise a reason- 
 able doubt, and the jury should acquit the defendant. 
 
 In order to justify the inference of legal guilt, from cir- 
 cumstantial evidence, the existence of the inculpatory facts 
 must be absolutely incompatible with the innocence of the
 
 GENERAL INSTEUCTFONS IN CRIMINAL CASES. 641 
 
 accnsod npon any rational theory, and incapable of explanation 
 upon any other reasonable hypothesis than that of his <4'uilt. 
 
 § 20. Direct Evidence not Required. — The court further in- 
 structs the jury, that, while they must ba conv need of .the 
 guilt of the defendant, beyond a reasonable doubt, fi-oni the 
 evidence, in order to warrant a conviction, still, ihe pioof need 
 not be the direct evidence of persons who saw the offense 
 committed; the acts constituting the crime may be proved by 
 circumstances. 
 
 § 21. Admission in Criminal Cases — Must be all Taken To- 
 getiier. — Wliere the verbal admission of a person, charged with 
 crime, is offered in evidence, the whole of the admission must 
 be taken togetlier; as well that part which makes for the ac- 
 cused, as that which may make against him; and if the part 
 of the statement which is in favor of the defendant is not dis- 
 proved, and is not, apparently, improbable or untrue, when 
 considered with all the other evidence* in the case, then such 
 part of the statement is entitled to as much consideration from 
 the jury as any other part of the statement. 
 
 The jury are instructed, that wdiere evidence is given tend- 
 ing to show admissions made by the defendant in a criminal 
 case, the defendant is entitled to have the whole of the state- 
 ment or admission heard and considered by the jury. But 
 the jury are not obliged to believe, or disbelieve, all of such 
 statement; they may disregard such parts of it, if any, as are 
 inconsistent with the other testimony, or which the jury be- 
 lieve, from the facts and circumstances proved on the trial, 
 are untrue, Conner vs. State, 34 Texas, 659; Roscoe's Crim. 
 Ev., 55; Riletj vs. State, 4 Tex. App., 538; Eiland vs. State, 
 52 Ala., 322; State vs. Ilollenscheit, 61 Mo., 302. 
 
 § 22. Confessions Must be Treated Like Other Evidence. — If 
 
 the jury believe, from the evidence, that the defendant made 
 the confession, as alleged, and attempted to be proved in this 
 case, the jury should treat and consider such confession ] re- 
 cisely as they would any other testimony; and hence, if the 
 jury believe the whole confession to be true they should act 
 npon the whole as true. But the jury may believe part of the 
 41
 
 \/ 
 
 642 GENERAL INSTKUCTIONS IN CEIMINAL CASES. 
 
 testimony and reject tlie balance if tliej see sufficient grounds, 
 in the evidence, for so doing; the jury are at liberty to judge 
 of it like other evidence, in view of all the circumstances of 
 the case as disclosed by the evidence. Jacltson vs. The Peo- 
 ple, 18 111., 269. 
 
 § 23. Confession to be "Received with Caution. — The court 
 instructs the ]\xvy, that the confessions of a prisoner out of 
 court are a doubtful s;^ecies of evidence, and should be acted 
 upon by the jury with great caution, and, unless they are sup- 
 ported by some other evidence tending to show that the pris- 
 oner committed the crime, they are rarely sufficient to warrant 
 a conviction. 
 
 § 24. Confession Wlien Corroborated. — Upon the subject of 
 
 confessions the court further instructs the jury, that the 
 credit and weight to be given to them depend very much 
 upon what the confessions are; if the crime, itself, as charged, 
 is proved by other testimony, and it is also proved that the 
 defendant was so situated tliat he had an opportunity to com- 
 mit the crime, and his confessions are consistent with such 
 proof and corroborative of it, and the witness who swears to 
 the confession is, apparently, truthful, honest and intelligent, 
 then, confessions so made may be entitled to great weight 
 with the jury. 
 
 If the jury believe, from the evidence, that the confessions, 
 or admissions, testified to by the w tn 3ss A. B. as liaving 
 been made to him by the defendant, were so made, and that 
 they were the spontaneous and voluntary act of the defend- 
 ant, and if the jury further believe, that such confessions 
 have been corroborated by satisfactory proof that the {prop- 
 erUj loas stolen)^ and that the defendant was so situated that 
 he had an opportunity to commit the crime, then, such con- 
 fessions and admissions may be entitled to great weight in 
 the minds of the jury; and if the jury believe, from all the 
 evidence, beyond a reasonable doubt, that the defendant is 
 guilty, tlien they should so find by their verdict. 
 
 § 25. When Sufficient to Convict. — If, in tliis case, a convic- 
 tion is asked, on the ground of admissions, unsupported by
 
 GENERAL INSTRUCTIONS IN CRIMINAL CASES. 6-i3 
 
 otlier evidence, such admissions or confessions should be 
 clear and unequivocal, and such as to convince the jury, beyond 
 a reasonable doubt, of the defendant's guilt. 
 
 If the evidence, tending to show admissions of guilt, is sus- 
 tained by evidence of other facts, then such admissions, even 
 if not unequivocal, should be taken into consideration with all 
 the other evidence in the case, by the jury, and allowed such 
 weight as, in the opinion of the jury, they are entitled to. 
 
 § 26. Testimony of Accomplice. — That the witness A. B. is 
 what is known in law as an accomplice; and that, while it is a rule 
 of law that a person accused of crime may be convicted upon the 
 uncorroborated testimony of an accomplice, still, a jury should 
 always act upon such testimony with great care and caution, 
 and subject it to careful examination in the light of all the 
 other evidence in the case ; and the jury ought not to convict 
 upon such testimony alone, unless, after a careful examination 
 of such testimony, they are satisfied, beyond any reasonable 
 doubt, of its truth, and that they can safely rely upon it. 
 Best, Evi., § 171; 1 Greenl. Evi., § 38C. 
 
 If the jury believe, from the evidence, that the witness A. 
 B. was induced to become a witness, and testify in this case, 
 by any promise of immunity from punishment, or by any hope 
 lield out to him, by any one, that it would go easier with him 
 in case he disclosed who his confederates were, or in case he 
 implicated some one else in the crime, then, the jury should 
 take such fact into consideration, in determining the weight 
 which ought to be given to his testimony thus obtained, and 
 given under the influence of such promise or hope. 
 
 § 27. Fabrication of Testimony. — The jury are insti'ucted, 
 that if they believe, from the evidence, that the accused be- 
 lieved that the circumstances surrounding him were calculated 
 to awaken suspicion against him, and that he was ignorant of 
 the nature and course of criminal proceedings, and, under 
 such belief, was induced by his friends to fabricate testimony, 
 then, the jury may take these facts into consideration in con- 
 sidering the conduct of the defendant in relation to fabricat- 
 ing such testimony, and in determining his guilt or innocence. 
 Toe vs. The People, 49 111., 410.
 
 64:4 GENERAL INSTEUCTIONS IN CKIMINAL CASES. 
 
 § 28. Contrailictorj' and Inconsistent Statements. — If the jury 
 find, from the evidence, that the accused, at or about the time 
 of his arrest, made false and contradictory statements, calcu- 
 lated to excite suspicion against him, still, these statements, if 
 they can reasonably be attributed to any other motive or 
 cause than that of a consciousness of guilt of the crime charged 
 in the indictment, and a desire to conceal it, then they should 
 be so attributed and explained, and in such case they should 
 not be regarded as any evidence of guilt of the crmie 
 charged. 
 
 The court further instructs the jury, that the fact that wit- 
 nesses disagree in minor points in their recollection and recital 
 of transactions does not necessarily militate against the candor 
 of any of them. It may only indicate a failure of observation 
 or recollection. Jurors have not the right to captiously or 
 unreasonably disregard the testimony of witnesses, but, unless 
 there appears something which indicates a lack of candor or 
 untruthfulness on the part of the witness, the testimony of all 
 the witnesses should receive proper and candid consideration 
 by -the jury, in an honest discharge of their sworn duties. 
 State vs. licDlvitt, 69 la., 459. 
 
 § 29. One AVitness Suffifient — {Except in Treason or Per- 
 jury). — The court instructs the jniy, that the evidence of 
 one credible witness swearing, directly, to any material fact 
 in this case, if uncontradicted by other evidence, or by facts 
 and circumstances proven, is sufficient proof of that fact for the 
 purposes of this trial. 
 
 § 30. The Precise Crime Charged Must be Proved. — The jury 
 are further instructed, that if the evidence leaves a reasonable 
 doubt in the mind of the jury whether the defendant is guilty 
 of the precise crime with which lie is charged in the indict- 
 ment, then the jury should tind the defendant not guilty; 
 although the evidence may show conduct of no less tui-pitude 
 than the crime charged, that is not enough to authorize a con- 
 viction in this trial. Stuart vs. The People^ T3 111., 20. 
 
 § 31. Statements of Prosecuting Attorney not Based on Evidence. 
 
 — The jury are instructed, that it would be highly improper 
 and wrong for them to regard the statements of the prosecut-
 
 GENERAL INSTRUCTIONS IN CRIMINAL CASES. 045 
 
 infr attorney that, etc., as entitled to any weight whatever in 
 this ease. And tliis is true of any and all other statements of 
 his that are not based on the evidence in the case, if any such 
 have been made. Ken7iedy vs. The People, 40 111., 4S8. 
 
 The court further instructs the jury, that the allusions and 
 references of the prosecuting attorney to the supposed preva- 
 lence of crime in the community, should in no way influence 
 or prejudice your minds against the defendant in this case. 
 Your duty is diicharged wlien you have determined his guilt 
 or innocence of the charge contained in this indictment, and 
 there is no other question involved in the case. 
 
 § 32. Reasonable Doubt Defined. — The jury are instructed, 
 that the reasonable doubt which entitles an accused to acquittal 
 is a doubt of guilt reasonably arising from all the evidence in 
 the case. The proof is to be deemed to be beyond reasonable 
 doubt when the evidence is sufficient to impress the judgment 
 of ordinarily prudent men with a conviction on which they 
 v/ould act, without hesitation, in their own most important 
 concerns or affairs of life. 3 Greenlf. on Ev., § 29; Com. vs. 
 Webster, 5 Cush., 320. 
 
 The court instructs the jury, that in a legal sense a reason- 
 able doubt is a doubt which has some reason for its basis; it 
 does not mean a doubt from mere caprice or groundless con- 
 jecture; a reasonable doubt is such a doubt as the jury are able 
 to give a reason for. 3 Greenlf. on Evi., 13th Ed., § 29, n. 2. 
 
 The court instructs the jury, that a reasonable doubt, within 
 the meaning of the law, is such a doubt as would cause a rea- 
 sonable, prudent and considerate man, in the graver and more 
 important affairs of life, to pause and hesitate before acting 
 upon the truth of the matter charged or alleged. May vs. 
 The People, 60 111. 119. 
 
 The court instructs the jury, that in considering this case 
 you should not go beyond the evidence to hunt for doubts, 
 nor should you entertain such doubts as are merely chimerical 
 or based upon groundless conjecture. A doubt, to justify an 
 acquittal, must be reasonable, and arise from a candid and im- 
 partial consideration of all the evidence in the case ; and then 
 it must be such a doubt as would cause a reasonable, prudent 
 and considerate man to hesitate and pause before acting in the
 
 Q4:6 GENERAL INSTELX'TIONS IN CRIMINAL CASES. 
 
 graver and more important affairs of life. If, after a careful 
 and impartial consideration of all the evidence in tlie case, yon 
 can say and feel that you have an abiding conviction of the 
 guilt of the defendant, and are fully satisfied of the trutli of 
 the charge, then yon are satisfied beyond a reasonable doubt. 
 Miller vs. The People, 39 111., 457; People vs. Finley, 38 
 Mich., 4S2; Spies vs. People, 12 ^. E. Eep., 905; State vs. 
 Pierce, 65 la., 85. 
 
 The term "reasonable doubt," as used in these instrnctions, 
 means a donbt which has some good reason for it, arising out 
 of the evidence in the case ; such a doubt as you are able to 
 find, in the evidence, a reason for; it means such a doubt as 
 would cause a prudent man to pause and hesitate before 
 accepting as true and acting upon any mattei-s alleged or 
 cliarged in the graver and more important affairs of life. As 
 applied to evidence in criminal cases, it means an actual and 
 substantial doubt, growing out of the unsatisfactory nature of 
 the evidence in the case. It does not mean a doubt whicli arises 
 from some mere whim or vagary, or from any groundless sur- 
 mise or guess, and, while the law requii-esyou to be satisfied, 
 from the evidence, of the defendant's guilt, beyond a reason- 
 able doubt, it, at tlie same time, prohibits you from going out- 
 side of the evidence to hunt up doubts upon which to acquit 
 the defendant. In arriving at your verdict, it is your duty to 
 carefully and candidly consider the entire evidence in the 
 case, and in so doing, you should entertain such doubts only 
 as arise from the evidence, and are reasonable, as defined in 
 these instructions. 3 Greenleaf on Evidence, § 29; Common- 
 wealth vs. Webster, 5 Cush., 320. 
 
 § 33. Duty of the Jury to Determine Doubts. — If, after a care- 
 ful comparison and candid consideration of all the evidence in 
 the case, you have a doubt of the defendant's guilt, it will then 
 be your duty to determine whether such doubt is reasonable 
 and sufficient in law to acquit the defendant. And, if after 
 applying the law defining such doubts, as laid down in these 
 instructions, you find that the doubt in question is not a rea- 
 sonable one, then it will not b) sufficient in law to acquit the 
 defendant. A doubt to justify an acquittal must be a reason- 
 able one. and it must arise from a careful and candid investi-
 
 GENERAL INSTRUCTIONS IN CRIMINAL CASES. 647 
 
 .^ation of all the evidence in tlie case, and unless the d(Ji]ht is 
 a reasonable one and docs so arise it will not be sutHcieut in 
 law to authorize a verdict of not guilty. 
 
 § 34. Reasonable Doubt in Circumstantial Evidence. — The law 
 
 requiring the jury to be satisfied of th^ defendant's guilt be- 
 yond a reasonable doubt, in order to warrant a conviction 
 does not require that you should be satisfied beyond a reason- 
 able doubt of each link in the chain of circumstances relied 
 upon to establish the defendant's guilt; it is sufficient if, taking 
 the testimony all together, you are satisfied beyond a reason- 
 able doubt that the defendant is guilty. Houser vs. State, 58 
 Ga., 78; Jarrell vs. State, 58 Ind., 293; State vs. Jlayden^ 45 
 la., 11; Bressler vs. People, 117 111., 422. 
 
 § 35. Attempt to Escape, How Considered. — Evidence has 
 been introduced as to an attempted escape from jail by the 
 defendant while in the custody of the sheriff of this county, 
 on this charge. If you find, from the evidence, that the defend- 
 ant did thus attempt to escape from custody, this is a circum- 
 stance to be considered by you, in connection with all the 
 other evidence, to aid you in determining the question of 
 guilt or innocence. Anderson vs. State, 4 JS^. E. R., 63; L04 
 Ind., 467. 
 
 § 36, Jury Judges of the Law as well as of the Facts — Illinois. — 
 
 "If the jury can say, upon their oaths, that they know the law 
 better than the court does, they have the right to do so; but 
 before assuming so solemn a responsibility they should be sure 
 that they are not acting from caprice or prejudice; that they 
 are not controlled by their will or their wishes, but from a 
 deep and confident conviction that the court is wrong and that 
 they are right. Before saying this upon their oaths it is their 
 duty to reflect whether from their habits of thought, their 
 study and experience, they are better qualified to judge of the 
 law than the court. If, under all these circumstances, they 
 are prepared to say that the court is wrong in its exposition 
 of the law, the statute has given them the right." Schnier 
 vs. The People, 23 111., 17; see, also, Mullinix vs. The Peo- 
 ple, 76 III., 211; Spies et al. vs. The People, 12 N". E. Rep., 
 905—122 111., 1.
 
 GJ:S GENERAL IKSTEUCTIONS IN CKIillXAL CASES. 
 
 IiKliaim. — In this case you are the sole judges of the law, 
 and the right to determine the law goes to this extent: that, 
 even if all the facts alleged in the indictment are established 
 by the evidence beyond a reasonable doubt, you have still 
 the right to determine whether or not such facts, when so 
 established, constitute a public offense, under the laws of this 
 state, and if you determine they do not, you have the right 
 to acquit the defendant. You are not bound by the ins'.ruc- 
 tions given you by the court as to the law, but are at liberty 
 to disregard such instructions, if you see fit to do so, and de- 
 termine the law for yourselves. Anderson vs. State, 5 jS^. E. 
 R, 711. 
 
 § 37. Proof of an Alibi. — One of the defenses interposed by 
 the defendants, in this case, is what is known, in law, as an 
 aim, that is, that the defendants were at another place at the 
 time of the commission of the crime, and the court instructs 
 the jury, that such a defense is as proper and as legitimate, if 
 proved, as any other, and all the evidence bearing upon that 
 point should be carefully considered by the jury; and if in 
 view of all the evidence, the jury have any reasonable doubt 
 as to whether the defendants were in some other place when 
 the crime was committed, they should give the defendants the 
 benefit of the doubt, and find them not guilty. Davis vs. 
 State, 5 Bax. (Tenn.), 612; Wileij vs. State, 5 Bax., 662. 
 
 § 38. Alibi Need not be Proved beyond a Reasonable Donbt. — 
 
 As regards the defense of an alibi, the jury are instructed, that 
 the defendant is not required to prove that defense beyond a 
 reasonable doubt to entitle him to an acquittal; it is sutficient 
 if the evidence upon that point raises a reasonable doubt 
 of his presence at the time and place of the eommi sion of 
 the crime charged. State vs. Harden, 46 la., 623; State vs. 
 Jaynes, 78 K C, 504; Iloioard vs. The State, 50 Ind., 190; 
 State vs. Watso?i, 7 S. C, 63. 
 
 § 39. Burden of Proof — Alibi. — The defendants claim, as one 
 of their defenses, what is known in law as an alibi,' that is, 
 at the time the robbery with which they are charged was 
 being committed they were at a different place, so that they 
 could not have participated in its commission.
 
 GENEEAL INSTKUCTIONS IN CKIMINAL CASES. 6i9 
 
 The burden is upon cacli defendant to prove this defense 
 foi- himself, bj a preponderance of evidence; that is, bj the 
 greater and superior evidence. 
 
 The defense of alibi, to be entitled to consideration, must 
 be such as to show that, at the very time of the commission of 
 the crime cliarged, the accused was at another place, so far 
 awaj or under such circumstances that he could not with any 
 ordinary exertion have reached the place where the crime was 
 committed so as to have participated in the commission thereof. 
 
 If the proof of alibi fails to show as to either defendant on 
 trial, you will not consider it as to him ; but if it does so show 
 as to either, you will give it full consideration as to the de- 
 fendant of whom it so shows. State vs. Maker, 37 N. W. 
 Eep. 2; 2 Bish. Crim. Pro., §§ 29-32; MulUns vs. The 
 People, 110 111., 45. 
 
 The court instructs the jury, as a matter of law, that where 
 the people make out such a case as would sustain a verdict of 
 guilty, and the defendant offers evidence, the burden is on 
 him to make out his defense, and as to an alibi j and when 
 the proof is in, then the primary question is (the whole evi- 
 dence being considered, both that given for the defendant and 
 for the people), is the defendant guilty beyond a reasonable 
 doubt? The law being that wlien the jury have considered all 
 the evidence, as well that touching the question of the alibi 
 as the criminating evidence introduced by the prosecution, 
 then, if they have any reasonable doubt of the guilt of the 
 accused of the offense with which he stands charged, then 
 they should acquit — otherwise, not. Ackerson vs. The People 
 (111.), 16 K. E. Eep., 847. 
 
 § 40. Doubt as to Defenclant or Somebody Else. — In determin- 
 ing the question as to whether tlie evidence does point as 
 strongly to the guilt of the {three) unknown men testified to 
 by the witnesses, A. and B., as it does to the prisoners at the 
 bar, it is competent for the jury, and, in fact, they should take 
 into consideration the fact, if proven in the case, that a few 
 minutes before the commission of the burglary, the said {three) 
 unknown men were near the place where the crime was com- 
 mitted; and also consider whether they did not, then and there, 
 have the same opportunity to commit such crime as the de- 
 fendants did.
 
 '-\ 
 
 650 GENERAL INSTRUCTIONS IN CRIMINAL CASES. 
 
 The court instructs tlio jury, that before they can convict 
 the defendant in this case, it must apj^ear, from the evidence, 
 beyond a reasonable doubt, that the defendant, and not some- 
 body else, committed the offense charged in the indictment. 
 It is not sufficient that the evidence shows that the defendant 
 or somebody else committed the crime, nor that the probabili- 
 ties are that the defendant and not somebody else committed 
 the crime, unless those probabilities are so strong as to re- 
 move all reasonable doubt as to whether the defendant or some 
 one else is the guilty party. Lyoyis vs. The People^ 68 111., 271. 
 
 If, from a consideration of all the evidence in this case, the 
 jury entertain a reasonable doubt as to whether the offense 
 charged was committed by the defendants or by other persons, 
 the jury should acquit; and the same rule applies as to the 
 question of guilt or innocence of each defendant; that is to say, 
 that if the evidence leaves the jurors in reasonable doubt as to 
 any one defendant, such defendant sliould be acquitted. 
 
 The jury are instructed, that it is a rule of law that although 
 it may be positively proved that one of two or more persons 
 committed a crime, yet if there is any reasonable doubt as to 
 which is the guilty party, all must be acquitted. Campbell 
 vs. The People, 16 111., 1. 
 
 § 41. Proof of Identity. — Tlie court further instructs the 
 jury, that to justify a conviction of the defendants, their iden- 
 tity as the guilty persons must be proved, beyond every rea- 
 sonable doubt, and the jury are not bound to believe that the 
 witness was able to identify the prisoners with certainty be- 
 cause he swears positively to their identity; and the jury should 
 not so believe, if they themselves are satisfied, from the cir- 
 cumstances proved, that there is a reasonable doubt as to 
 whether the witness was able to and did identify the defend- 
 ants, or any of them, as the guilty persons. 
 
 So far as regards the question of identity of the defendants 
 the court instructs the jury, that if they believe, from the 
 evidence, and tlie circumstances proved, that there is reason- 
 able doubt whether the witness might not be mistaken as to 
 their identity, then before the jury would be authorized to 
 convict the prisoners the corroborating circumstances tend'ng 
 to establish their identity must be such as, with other testi-
 
 GENEEAL INSTRUCTIONS IN CRIMINAL CASES. G51 
 
 monj, produces a degree of ceitainty in the mind of the jniy 
 60 great that they can say and feel that they have no reason- 
 able doubt as to the identity of the defendants. 
 
 § 4^. Good Character Presumed. — The court instructs the 
 jury, that the character of an accueed person is, in law, pre- 
 sumed to be good nntil the contrary appears from the evi- 
 dence, and he is under no obligation to prove a good character 
 until his character is, in some manner, attacked, and the jury 
 will not be justified in drawing any inference unfavorable to 
 the defendant, from the fact he has offered no proof as to 
 good character in this case. 
 
 § 43. Former Good Character Proved. — If the jury believe, 
 from the evidence, that while the defendant A. resided in 
 the town of C. his general reputation and character for honesty 
 were good, then the presumption of law is, in the absence of 
 proof to the contrary, that that reputation has continued good 
 down to the time of the commission of the offense chai-ged in 
 this indictment. And the said defendant was under no obli- 
 gation to introduce further proof on the point of good char- 
 acter, unless he saw fit so to do, and his omission to introduce 
 further testimony upon that point should not be regarded by 
 the jury as a circumstance against him, or as tending, in any 
 degree, to prove his guilt in this case. 
 
 § 44. Omission to Prove Good Character. — That the law not 
 only presumes that every person is Innocent until he is proven 
 to be guilty, but the law also presumes that a person has a good 
 character and re]5utation for {honesty) until the contrary is 
 shown by the evidence ; and the jury have no right to con- 
 sider the omission on the part of the defendants, E.. and H., to 
 introduce evidence of good character as a circumstance against 
 them, or as tending to show their guilt in this case. 1 Whar- 
 ton on Crim. Law, § 637; State vs. Tozier, 49 Me., 404; 
 People vs. Bodine, 1 Denio, 2S1. 
 
 § 45. Proof of Good Character — Effect of — The jury are in- 
 structed, that in all criminal trials where the prosecution 
 depends upon circumstantial evidence alone, which is not con-
 
 652 GENERAL INSTEUCTIONS IN CEIMINAL CASES. 
 
 elusive in its cliaracter, previous good character on the part 
 of the accused, if proved, is entitled to great weight in favor 
 of innocence. 
 
 That upon a prosecution for burglary or larceny, proof of 
 previous good character for honesty, on the part of the party 
 charged, is proper evidence to be considered by the jury, in 
 connection with all the other evidence, in determining the guilt 
 or innocence of the party charged ; and if the case is otherwise 
 doubtful, satisfactory proof of previous good character will 
 amount to complete defense. 
 
 That where there is a serious conflict in the testimony as to 
 the commission of an offense like that charged in this case, 
 evidence of the previous good character of the defendant, as 
 to such offenses, should be considered by the jury, in connec- 
 tion with all the other evidence given on the trial, in determin- 
 ing whether the defendant would be likely to commit, and did 
 commit, the offense in question. Kistler\&. State, 54 Ind.,400. 
 
 That in doubtful cases, evidence of good chai-acter is con- 
 clusive in favor of the party accused; and if, from the evidence, 
 you find that the facts and circumstances proved and relied 
 upon to establish the defendant's guilt are in doubt, or that the 
 intent of the defendant to commit the crime is in doubt, then, 
 if the prisoner has, by evidence, satisfied you that he was a man 
 of good character up to the time of the alleged offense in this 
 case, the presumption of law is, that the alleged crime is so 
 inconsistent with the former life and character of the defend- 
 ant that he could not have intended to commit such a crime, 
 and it would be your duty to give the defendant the benefit 
 of that presumption, and acquit him. 
 
 § 46. Proof of Good Character Always Proper. — The court in- 
 structs the jury, that evidence of previous good character is 
 competent evidence in favor of a party accused, as tending to 
 show that he would not be likely to commit the crime alleged 
 against him. 
 
 And in this case, if the jury believe, from the evidence, 
 that prior to the commission of the alleged crime the defend- 
 ant had always borne a good character {for honesty) among 
 his acquaintances and in the neighborhood where he lived, 
 then this is a fact proper to be considered by the jury, with
 
 GENERAL INSTRUCTIONS IN CRIMINAL CASES. 653 
 
 all the other evidence in the case, in dcteruiinlng the question 
 whether the witnesses who have testified to facts tending to 
 criminate him have been mistaken or have testified falsely or 
 truthfully; and if, after a careful consideration of all the evi- 
 dence in the case, including that hearing iijion his previous 
 good character, the jury entertain any reasonable doubt of the 
 defendant's guilt, then it is their sworn duty to acquit him. 
 Lee vs. State, 2 Tex. App., 338; 3 Greenl. Ev., § 2.5-26; 1 
 Wliart. Crim. Law, § 636, -643; Stewart vs. The State, 22 
 Ohio, 477. 
 
 § 47. Guilt Proved Notwithstan.lin^ Proof of Good Character, — 
 
 If the jury believe, from the evidence, beyond a reasonable 
 doubt, that the defendant committed the crime in question, as 
 charged in the indictment, it will be your sworn duty, as 
 jurors, to find the defendant guilty, even though the evidence 
 may satisfy your minds that the defendant, previous to the 
 commission of the alleged crime, had sustained a good repu- 
 tation and character for honesty. Hirschman vs. The People, 
 101 111., 575. 
 
 The court instructs the jury, as a matter of law, that the 
 defendant has put in evidence his general reputation for hon- 
 esty and integrity; that such evidence is permissible under the 
 law, and is to be by the jury considered as a circumstance in 
 this case. But the court further instructs the jury, that if, 
 from all the evidence in this case, they are satisfied beyond a 
 reasonable doubt of the guilt of the accused, then it is the duty 
 of the jury to find him guilty, notwithstanding the fact that 
 heretofore the accused has borne a very good character for 
 honesty.
 
 CHAPTER LI. 
 
 ACCESSOKIES. 
 
 Sec. 1. Accessory defined. 
 
 2. Accessory defined — Illinois. 
 
 3. Aiding or abetting may be by words or acts. 
 
 4. Concert of action need not be by express agreement. 
 
 5. Aiding or abetting assault. 
 
 6. Aiding or abetting murder. 
 
 7. Advising or encouraging, not being present. 
 
 8. Aiding or abetting in burglary. 
 
 9. Present, but not aiding or assisting. 
 10. Any one or more may be found guilty. 
 
 Note. — At common law, persons participating in a crime are cither prin- 
 cipals or accessories. If the crime is felony, they are alike felons. Princi- 
 pals are such either in the first or second degree. Principals in the first 
 degree are those who are the immediate perpetrators of the act. Principals 
 in the second degree are those who did not with their own hands commit 
 the act, but who were present, aiding and abetting it. 
 
 An accessory before the fact is he who, being absent at the time the 
 felony is committed, does yet procure, counsel or comnjand another to com- 
 mit a felony. In many, if not most, of the states, an accessory before the 
 fact is by statute declared to be in law, as he is in reason, either actually or 
 substantially a principal. 
 
 § 1, Accessory Defined, — The court instructs the jury, that an 
 accessory is one who stands by and aids, abets or assists, or who, 
 not being present aiding, abetting or assisting, hath advised, 
 enconraged, aided or abetted the perpetration of the crime 
 charged. lie who thus aids, abets, assists, advises or enconr- 
 ages, is considered a principal and pnnished accordingly. 
 Iowa Code, § 4314 ; State vs. Hessian^ 58 la,, 68. 
 
 § 2, Accessory Defined— Illinois,— R, S.,. Cli. 38, § 274,— The 
 court instructs the jury, as a matter of law, that an accessory 
 is he who stands by, and aids, abets or assists, or who, not 
 being present aiding, abetting or assisting, hath advised, en- 
 couraged, aided or abetted the perpetration of the crime. 
 He who thus aids, abets, assists, advises, or encourages, shall 
 
 (654)
 
 ACCESSOKIES. 655 
 
 be considered as principal and punished accordingly. Every 
 such accessory, when a crime is committed within or without 
 this state, by his aid or procurement in this state, may be 
 indicted and convicted at the same time as the principal, or 
 before or after his conviction, and whether the princi})al is 
 convicted or amenable to justice or not, and punished as prin- 
 cipal. Coates vs. The People, 72 III., 303, 
 
 If the jury believe, from the evidence, beyond a reasonable 
 doubt, that the defendant deliberately and intentionally shot 
 * * * with a loaded revolver, as charged in the indictment, 
 and that the defendant A. B. in any way or maimer aided, 
 advised or encouraged such shooting, then the jury should 
 find the defendants both guilty; provided, the jury further 
 find, from the evidence, beyond a reasonable doubt, that such 
 shooting was not necessary, and did not reasonably appear to 
 be necessary to save their own lives, or to prevent them, or 
 either of them, receiving great bodily harm. Smith vs. The 
 People, T4 111., 144. 
 
 § 3. Aiding, Advising, etc., may be by Words or Act?.- — The 
 
 court instructs the jury, that the advising or encouraging that 
 may make one an accessory i) crime need not be by words. 
 It may be by words or acts, signs or motions, done or inade for 
 the purpose of encouraging the commission of the crime. 
 Brennan vs. The People, 15 111., 511. 
 
 § 4. Concert of Action Need not be by Express Agreemeiit. — 
 
 The jury ai-e instructed, that while the law requires, in order 
 to find all the defendants guilty, that the evidence should 
 prove, beyond a reasonable doubt, that they all acted in concert 
 in the commission of the crime charged, still it is not necessary 
 that it should be positively proven that they all met together 
 and agreed to commit the crime; such concert may be ])roved 
 by circumstances; and if, from all the evidence, the jury are 
 satisfied, beyond a reasonable doubt, that the crime was com- 
 mitted by the defendant, and that they all acted together in 
 the commission of the crime, each aiding in his own way, this 
 is all the law requires to make them all equally guilty. Mil- 
 ler vs. The People, 39 111., 457.
 
 656 ACCESSOKIES. 
 
 § 5. Aiding or Abetting Assanlt. — TLe court instructs tlie 
 jury, that the rule of law is that, as to each of the defendants; 
 in order to warrant a verdict of guilty as to him, it must 
 appear, from the evidence, that an assault was committed, in 
 manner and form as charged in the indictment, and that he 
 was present, taking part in the assault, or was aiding and abet- 
 ting in tlie same, or that he had advised or encouraged the 
 commission thereof. 
 
 And in passing u'pon the guilt or innocence of each one of 
 the defendants, if the evidence fails to establish, beyond a 
 reasonable doubt, that he was present, taking part in, or aiding 
 or abetting the assault, or if he was not present, that he had 
 advised or encouraged the same, then as to such defendant, 
 the verdict should be not guilty. 
 
 If the jury believe, from tae evidence, beyond a reasonable 
 doubt, that any one or more of the defendants attempted to 
 kill or murder the said A. B., in manner and form as charged 
 in the indictment, and that any one or more of the other de- 
 fendants now on trial, with the intent only to commit an assault 
 and battery, and not to murder the said A. B., joined in the 
 attempted assault, and combined with those who did so intend 
 to murder,^ to assault and beat th3 said A. B., then all who so 
 combined and aided in the attempt to commit said assault 
 would be guilty of an assault with an intent to kill and mur- 
 der, in manner and form as charged in the indictment. 
 
 § 6. Aiding or Abetting Murder. — The court further instructs 
 the jury, that if they believe, from the evidence, beyond a 
 reasonable doubt, that the siiid A. B. was unlawfully killed, 
 with malice aforethought, in manner and form as charged in 
 the indictment, and that the defendant C. D. was present 
 and in any manner aided, abetted or assisted in such killing 
 or advised or encouraged the same, then the jury should find, 
 him guilty, although they may believe, from the evidence, 
 that some other person fired the fatal shot (struck the fatal 
 blow), and although no motive on his part for the killing has 
 been shown. 
 
 If the evidence, facts and circumstances, proved on the trial, 
 convince the jury, beyond a reasonable doubt, that the said A. 
 B. was unlawfally killed, with malice aforethought, in manner
 
 ACCESSORIES. 657 
 
 and form as charged in tlie indictment, and that the defendant 
 C. D. was present, and in any manner aided, assisted or 
 abetted such killing, then the jury should find him guilty, 
 though there was no human eye witnessed the fact of such 
 killing. 
 
 § 7. Advising and Encouraging, not Being Present. — The 
 court instructs the jury, that if they believe, from the evi- 
 dence, beyond a reasonable doubt, that any one or more of the 
 defendants is guilty of the offense cliarged in the indict- 
 ment, and that any other of the defendants stood by at 
 the time and aided, abetted or assisted in the commission of 
 the crime, or who, not being present, had advised or encour- 
 aged the commission of the same, then such other persons, so 
 aiding, abetting, advising or encouraging, are, in law, guilty 
 as principals, and the jury should so find by their verdict. 
 Sharp vs. State, 6 Tex. App., 650; State vs. Hamilton, 13 
 Nev., 386; State vs. Maloij, 44 la., 104. 
 
 § 8. Aiding and Abetting in Burglary. — If the jury believe, 
 from the evidence, beyond a reasonable doubt, that a burglary 
 was committed, as charged, and that the defendant A. B. 
 was standing by, aiding, abetting, assisting or encouraging 
 the commission of the crime, then it is the duty of the jury 
 to find him guilty, in manner and form as charged in the 
 indictment. 
 
 § 9. Present, but not Aiding or Assisting. — Though the jury 
 may believe, from the evidence, that the said A. B. was mur- 
 dered at tho time and place in question, and that the defend- 
 ant C. D. was present at the time of such murder, still, if the 
 jury are not satisfied, from the evidence, beyond a reasonable 
 doubt, that the said C. D. was previously aware of the purpose 
 to commit such murder, or that he, in some way, aided, abetted 
 or assisted in the killing, or advised or encouraged it, then 
 they should find the said C. D. not guilty, though they further 
 believe, from the evidence, that he subsequently failed to dis- 
 close the killing, or even concealed the same. State vs. Maloy^ 
 44 la., 104. 
 42
 
 658 ACCESSORIES. 
 
 § 10. Any one or More maj' be Found Guilty. — The court in- 
 structs the jury, that if, from a consideration of all the facts 
 and circumstances detailed in evidence, the jury believe, from 
 the evidence, beyond a reasonable doubt, that the defendants, 
 or any one or more of them, are guilty of the crime charged 
 in the indictment, they should so find, by their verdict, as to 
 each particular defendant. It is not necessary to find all the 
 defendants guilty in order to find any one or more of them 
 guilty.
 
 CHAPTEH LII. 
 
 ASSAULTS. 
 
 ASSAULT WITH INTENT TO COMMIT MUEDER. 
 
 Sec. 1. Assault defined. 
 
 2. Must be such as would be murder if death had ensued. 
 
 3. Person presumed to have intended the natural consequences, etc. 
 
 4. Reckless shooting — Wanton injury. 
 6. The intent must appear. 
 
 6. The intention to kill must exist. 
 
 7. Circumstances showing deliberation. 
 
 8- The intent may be proved by circumstances. 
 
 9. A blow in the heat of passion, etc. 
 
 10. Incapable of forming intent from drunkenness. 
 
 11. The intent must be proved beyond a reasonable doubt. 
 
 12. The verdict may be for an assault with a deadly weapon. 
 
 13. May find defendant guilty of assault with intent to commit man- 
 
 slaughter. 
 
 ASSAULT WITH A DEADLY WEAPON. 
 
 14. Assault with a knife. 
 
 15. Proof of instrument of the same kind sufficient. 
 
 16. What sufficient to prove. 
 
 17. Wliat necessary to prove. 
 
 18. No crime without intent. 
 
 19. Presumption of intent may be rebutted. 
 
 20. A deadly weapon defined. 
 
 ASSAULT WITH INTENT TO COMMIT MUKDER. 
 
 § 1. Assault Defined. — The court instructs the jury, that an 
 assault is an unlawful attempt, coupled with a present ability, 
 to commit a violent injury on the person of another. And in 
 this case, unless the jury believe, from the evidence, beyond a 
 reasonable doubt, that the defendant made an attempt to shoot 
 the witness A. B. with a loaded pistol or revolver, intending 
 to shoot him, and with a then present ability to shoot him, 
 then the jury should find the defendant not guilty. 
 
 (659)
 
 660 ASSAULTS. 
 
 § 2. Must be Such as Would be Murder if Death had Ensued. — 
 
 In order to justify a verdict of guilty of the crime of an assault 
 with intent to commit murder, the facts and circumstances 
 ])roved in the case must be such that if death had resulted 
 from the shooting, the jury would have found the defendant 
 guilty of willful murder. Kuij vs. Stat'', 21 Ga., 220; Stale 
 vs. Malcomh, 8 la., 413 ; Sharp vs. State, 19 Ohio, 379. 
 
 § 3. Presumed to Intend the Natural Consequences, etc. — The 
 
 jury are instructed, that the natural and probable consequences 
 of every act deliberately done by a person of sound mind, are 
 presumed to have been intended by tlie author of such act. 
 And if the jury believe, from the evidence, beyond a reason- 
 able doubt, that the defendant did shoot the said A. B., as 
 charired in tlie indictment, and that the natural and ordinary 
 consequences of such shooting would be the death of the said 
 A. B., then the presumption of law is that the defendant did 
 shoot the said A. B. with intent to kill him; and if the shoot- 
 ing was done with malice aforethought, either expressed or 
 implied, as explained in these instructions, the jury should 
 find the defendant guilty of an assault with an intent to commit 
 murder. 
 
 § 4. Reckless Shooting — Wanton Injury. — If the jury believe, 
 from the evidence, beyond a reasonable doubt, that the de- 
 fendant pointed the gun at the said A. B., and discharged the 
 same, either with malice aforethought, or with a reckless and 
 total disregard of human life, and that the use of the said 
 weapon, as used by the said defendant, was likely to kill the 
 said A. B., then the said defendant is guilty of an assault with 
 an intent to commit murder. 
 
 § 5. Intent Must Appear. — Before the jury can find the de- 
 fendant guilty of an assault with intent to commit murder, 
 the jury must believe, from the evidence, beyond a reasonable 
 doubt, that the defendant shot the said A. B. under such cir- 
 cumstances as manifest a deliberate intention unlawfully to 
 take away the life of said A. B.; or else, under circumstances 
 showing that no considerable provocation for the assault ex- 
 isted, or where all the circumstances of the transaction show
 
 ASSAULTS. 661 
 
 an abandoned and malignant heart on the part of the defend- 
 ant at the time. 
 
 Before the jnrj can convict, under the indictment in this 
 case, they must be satisfied, from the evidence, beyond a rea- 
 sonable doubt, that the defendant intended to murder the prose, 
 cuting witness — that he had this intent at the time of the firing 
 and that he fired the shot without any reasonable apprehension 
 of receiving from the prosecuting witness any great bodily 
 harm; or else, where there was no considerable provocation, 
 or where all the circumstances show an abandoned and malig- 
 nant heart. 2 Bish. on Crim. Law., § 759. 
 
 § 6. Intention to Kill Must Exist. — The jury are instructed, 
 that in order to convict the defendant of an assault with 
 intent to murder the said A. B., it is necessary for the people to 
 prove that the defendant maliciously and deliberately formed 
 an intention to kill the prosecuting witness A. B., and that 
 with such deliberately formed intention, he attempted to carry 
 such intention into effect, and was only prevented from so 
 doing by some interposition not of his own will; or else, under 
 circumstances showing that there was no considerable provo- 
 cation for the attack on the said A. B., or where all the cir- 
 cumstances show an abandoned and malignant heart, and 
 this must be established beyond a reasonable doubt; and if the 
 prosecution have failed so to prove these matters, then the 
 jury must acquit the defendant of the ofl^ense of an assault 
 with an intent to commit murder. 2 Whar. on Crim. Law, 
 G. 1279; 1 Bish. on Crim. Law, § 492. 
 
 § 7. Facts Showing Deliberation. — That to reduce an unlaw- 
 ful killing of a human being from the crime of murder to that 
 of manslaughter, on the ground that it was not done with 
 malice aforethought, it must appear, from the evidence, that it 
 was done under such a sudden impulse of passion as was ap- 
 parently irresistible, provoked by a serious and highly pro- 
 voking injury upon the person of defendant, or by an attempt 
 by the deceased to commit a seriously personal injury upon 
 defendant. 
 
 And if the jury believe, from the evidence, beyond a rea- 
 sonable doubt, that the defendant, after the {alleged provoca-
 
 662 ASSAULTS. 
 
 tioii) was given, deliberately went to the lionse, some dis- 
 tant, and got bis gun, and returned witb it, and sbot the said 
 A. B,, as cbarged in tbe indictment, tben malice is presumed, 
 unless its presence is rebutted by the other evidence in the 
 case; and the defendant is also presumed to have intended the 
 natural consequences of his acts, and in such case, if death had 
 ensued, it would have been murder, and the jury should find 
 the defendant guilty of an assault with intent to murder. 
 
 § 8. Intent may be Proved by Circumstances. — That to con- 
 stitute the offense charged in this case, the intent alleged in 
 the indictment is necessarily to be proved, but direct and 
 positive testimony is not necessary to prove the intent ; it may 
 be inferred from the evidence, if there are any facts proved 
 which satisfy the jury, beyond a reasonable doubt, of its ex- 
 istence. Roberts vs. The People, 19 Mich,, 401, 
 
 If the jury are satisfied, from the evidence, beyond a reason- 
 able doubt, that the defendant at and within this county with- 
 in the period of, etc., intentionally and unlawfully shot a pistol 
 loaded with powder and leaden ball, at and against the said S, 
 C, then another question for you to determine will be whether 
 or not the defendant, at the time he tired the said pistol, in- 
 tended to take the life of the said C; and in determining this 
 question it will be proper for you to consider the distance that 
 the defendant was from C. at the time he fired the pistol, the 
 character of the weapon used, the manner in which it was 
 loaded and used, and whether it was such a weapon as would 
 be likely to take the life of a man at the distance the defend- 
 ant was from C, used in the manner in which it was used at 
 the time the shot was fired, so far as these matters appear from 
 the evidence. 
 
 You may also take into consideration whether it is true that 
 the defendant made any declaration or statement at the time 
 or immediately before the shooting, as to what his intentions 
 were, and also his testimony regarding his intentions at the 
 time of the shooting, and also the testimony regarding the 
 defendant's character and reputation as a peaceable and quiet 
 citizen, and if, after considering all these matters together with 
 all the other evidence in the case, you believe, from the evi- 
 d£>nce, beyond a reasonable doubt, that the defendant intention-
 
 ASSAULTS. 663 
 
 ally and unlawfully sliot tlie said pistol at and against the said 
 C, with the intention thereby to take the life of the said C, 
 then you should lind the defendant guilty. 
 
 The jury are further instructed that they may take into con- 
 sideration whether it is true that the defendant made any dec- 
 laration or statement at the time, or immediately before the 
 shooting, as to what his intentions were, and also his testimony 
 regarding his intentions at the time of the shooting, if any, 
 and also the te timony regarding the defendant's character and 
 reputation as a peaceable and quiet citizen; and if, after con- 
 sidering all these matters, together with all the other evidence 
 in the case, the jury entertain any reasonable doubt as to 
 whether the defendant intentionally shot the said pistol at or 
 against the said C, or if they entertain any reasonable doubt 
 s to whether the defendant fired the pistol with the intention 
 thereby to take the life of the said C, then the defendant is 
 not guilty of an assault with intent to murder. Rollins vs. 
 State, 62 Ind., 46. 
 
 § 9. Blow in Heat of Passion without Intention to Kill. — If the 
 
 jury believe, from the evidence, that at the time of the affray 
 between the parties, a sudden quarrel arose, and that the blow 
 was given in the heat of passion, and without premeditation, 
 and without any intention to kill, then the offense would not 
 amount to an assault with an intent to murder. 
 
 § 10. Incapable of Forming Intent from Drunkenness. — The 
 court instructs the jury, that, in this case, in order to warrant 
 a conviction of the defendant, the jury must be satisfied, from 
 the evidence, not only that the defendant made an assault 
 upon the said A. B., as charged in the indictment, but it must 
 also appear, from the evidence, that, at the time he made the 
 assault, he had formed in his own mind a deliberate intention 
 to take the life of the said A. B.; and, if the jury further 
 believe, from the evidence, that at the time of the a'leged ar- 
 sault, the defendant was so deeply intoxicated or besotted with 
 drink that he was incapable of entertaining or forming any 
 positive intent to kill the said A. B., then the jury should ac- 
 quit the defendant of the crime of an assault with intent to 
 commit murder. Mooney vs. The State, 33 Ala., 419; State
 
 6Q4: ASSAULTS. 
 
 VS. Garvey, 11 Minn., 154; Pigman vs. State^ 1-4 Ohio, 555; 
 1 Bishop Crim. Law, § 492; Pays vs. State^ 5 Tex. App., 35; 
 Parke vs. State, 5 Tex. App., 552. 
 
 § 11. Must be Proved beyond a Reasonable Doubt. — The jury 
 are instructed, that if they believe, from the evidence in the 
 case, that there is a reasonable doubt as to whether the pris- 
 oner, at the time of the shooting, was under reasonable appre- 
 hension that the prosecuting witness intended to inilict upon 
 him great bodily harm, and that he fired the shot in self- 
 defense, then the jury must acquit. Lawlor vs. The P€Oj>Le, 
 74 111., 230. 
 
 If the jury have a reasonable doubt, from the evidence in 
 the caee, whether .the gun was accidentally or intentionally dis- 
 charged, the defendant is entitled to the benefit of such doubt, 
 and the jury should find the defendant not guilty. State vs. 
 Connor^ 59 la., 357. 
 
 § 12. Verdict May be for an Assault with a Deadly Weapon. — 
 
 The court further instructs the jury, that under the indictment 
 in this case, they may find the defendant guilty of an assault 
 with intent to murder, or guilty of an assault with a deadly 
 weapon, with intent to commit a bodily injury, when no con- 
 siderable provocation appears, or when the circumstances of 
 the assault show an abandoned and malignant heart, and if, after 
 a full and careful consideration of all the evidence, the jury 
 have a reasonable doubt, whether the defendant is guilty of an 
 assault with an intent to kill, but do believe, from the evidence, 
 beyond a reasonable doubt, that defendant is guilty of an as- 
 sault with a deadly weapon, and with intent to do great bodily 
 injury upon the person of the said A. B., where no considera- 
 ble provocation appears, or under circumstances which show 
 an abandoned and malignant heart, then the jury should so 
 find by their verdict. 
 
 § 13. May Find Defendant Guilty of an Assault with Intent to 
 Commit Manslaughter. — If you find, from the evidence, that the 
 defendant, at the time and place charged in the indictment, 
 unlawfully assaulted said Ryan with a pistol, and shot liim in 
 the breast, and you further find that said assault was made
 
 ASSAULTS. CC5 
 
 upon reasonable provocation, in tlie heat of blood, but without 
 malice, and withput legal excuse, and with the intent to kill, 
 "Ihen you would be justified in finding the defendant guilty of 
 tin assault with intent to commit manslaughter. fState vs. 
 White, 45 la., 325; State vs. Connor, 59 la., 357. 
 
 ASSAULT WITH A DEADLY WEAPON WITH INTENT, ETC. 
 
 § 14. Assault with a Knife Charged. — If the jury believe, 
 from the evidence in this case, that the defendant made an 
 assault upon the said A. B., with any sharp, deadly weapon, 
 capable of producing a dangerous cutting wound, in manner 
 and form as charged in the indictment, then the jury should 
 find the defendant guilty, 
 
 § 15. Proof of Instrument of the Same Kind. Sufficient. — It is 
 
 immaterial, in this case, whether the alleged injury was in- 
 flicted with a knife, or not, provided the jury believe, from 
 the evidence, beyond a reasonable doubt, that the defendant 
 made an assault-upon the said A. B., with some sharp, cutting 
 instrument, capable of inflicting a dangerous cutting wound, 
 and of doing great bodily injury, with intent to inflict upon 
 the person of the said A, B. a bodily injury, without any con- 
 siderable provocation therefor, or under circumstances show- 
 ing a malignant heait, in manner and form as charged in the 
 indictment, for in such case the jury should find the defend- 
 ant guilty. Koscoe's Crim. Ev., 705; 2 Whar. on Crim. Law, 
 § 1059. 
 
 If the jury believe, from the evidence, beyond a reasonable 
 doubt, that the defendant did make an assault upon the said 
 A. B., with a deadly weapon, in manner and form as charged 
 in the indictment, and that there was no considerable provo- 
 cation given for such assault, or that the circumstances of the 
 assault showed an abandoned and malignant heart on the part 
 of the defendant, at the time, then the jury should find the 
 defendant guilty. 
 
 § 16. AVliat Suffi.'ient to Prove. — That all that is necessary 
 for the people to prove in this case, in order to warrant a 
 conviction, is enough to satisfy the jury, from the evidence,
 
 6GQ ASSAULTS. 
 
 beyond a reasonable doubt, that the defendant -witliin 
 
 years before the finding of tbis indictment, within the county 
 of, etc., made an assault upon the person of the said A. B., 
 with a revolver, loaded with powder and ball; that the same 
 was then and there a deadly weapon, and that such assault was 
 made with intent to inflict, upon the person of the said A. B., 
 a bodily injury, when no considerable provocation appeared, 
 or when the circumstances of the assault showed an abandoned 
 and malignant heart on the part of the defendant, at the time. 
 
 § 17. What Necessar,- to Prove. — The court instructs the 
 jury, that to authorize a conviction in this case every material 
 allegation in the indictment must be proved, beyond any rea- 
 sonable doubt. Among the material allegations in this indict- 
 ment are: 1st. An assault with a deadly weapon. 2d. That 
 the deadly weapon was a knife, or some other weapon capable 
 of producing a wound similar to that of a knife. 3d. That 
 the assault was made upon the said A. B. with intent to inflict 
 upon him a bodily injury. 4th. That there was no considerable 
 provocation for the assault, or that it was made under circum- 
 stances showing an abandoned or malignant heart. 
 
 If the evidence fails to establish either one of these essential 
 elements of the offense charged, beyond a reasonable doubt, 
 then it will be the duty of the jury to acquit the defendant. 
 
 In this case it is incumbent upon the prosecution to prove 
 not only that an assault was made, as charged in the indict- 
 ment, but also that the assault was made with the intent 
 therein charged. 
 
 § 18. No Crime without Intent. — A criminal intent, as ex- 
 plained in these instructions, is always necessary to constitute 
 a crime, and when such criminal intention does not appear, 
 from all the facts and circumstances proved on the trial, then 
 the act complained of cannot be deemed a crime. Misadven- 
 ture or accident, when the circumstances rebut the presump- 
 tion of criminal intention and of criminal negligence, as ex- 
 plained in these instructions, are not deemed, in law, criminal, 
 however injuriously they may affect persons or property. 
 And, in this case, if the jury believe, from the evidence, that 
 while the defendant and the prosecuting witness were strug-
 
 ASSAULTS. 667 
 
 glino; together, the pistol in question was discharged, accident- 
 ally, then the jury should find the defendant not guilty. 
 
 In this case, if the prosecution has failed to establish, be- 
 yond a reasonable doubt, that the defendant intended to use, 
 and did use, the pistol in question, at the time of the difficulty, 
 for the purpose of inflicting an injury upon the said A. B., in 
 manner and form as charged in the indictment, or with an 
 iiitent to do him a bodily injury, the jury should acquit the 
 defendant. 
 
 § 19. Presumption of Intent may be Rebutted. — The court in- 
 structs the jury, that intent is the gist of all crimes, and 
 although the law presumes that a person intends the natural 
 results of his own acts, yet such presumption may be rebutted 
 by the circumstances of the case; and if the circumstances and 
 surroundings of a case show that there was no malice, and that 
 there was no intention to do what was actually done in the way of 
 inflicting the injury, then there can be no guilt. And if, under 
 the evidence in this case, the jury can reasonably find that the 
 shooting was not intentional, nor the result of criminal negli- 
 gence, as explained in these instructions, but was the result of 
 accident or misadventure, then the jury should find the defend- 
 ant not guilty. 
 
 § 20. A Deadly Weapon Defined. — The court instructs the 
 jury, that by the words "a deadly weapon," the law means any 
 weapon which is likely, from the use made of it at the time, 
 to produce death or do great bodily harm. 2 Whar. on Crim. 
 Law, § 94:4; 1 Bish. on Crim. Law, § 335; Reynolds vs. State^ 
 4 Tex. App., 327.
 
 CHAPTEK LIII. 
 BURGLAEY. 
 
 Sec. 1. What constitutes burglary. 
 
 2. Prima fade case — Intent presumnd. 
 
 3. Intent must be proved. 
 
 4. What constitutes a breaking. 
 
 5. What constitutes an entry. 
 
 6. May be found guilty of larceny 
 
 § 1. What Constitutes Burglary. — If the jury believe, from 
 the evidence, beyond a reasonable doubt, that the defendants, 
 or either of them, willfully, maliciously, feloniously and forci- 
 bly, did bi'eak and enter the house of the said A. B. (in the 
 night time)", at and within this county, with intent, the goods 
 and chattels of the said A. B., then and there in the sa^'d dwell- 
 ing-house being, feloniously and burglariously to steal, take and 
 carry away, then the jury should find the defendants, or such 
 of them as you so find to have broken and entered such dwell- 
 ing-house, guilty of the crime of burglary. 
 
 If the jury believe, from the evidence, that the defendant 
 broke and entered the dwelling-house of the said A. B., with 
 a felonious intent, in manner and form as charged in the in- 
 dictment, either by entering through an open window or door, 
 or by raising a window or opening a door, such entering of tlie 
 house constitutes the crime of burglary. 
 
 § 2. Prim a Facie Case — Intent Presumed. — If the jury believe, 
 from the evidence, that the defendant was found, on the 
 night in question, in the house of the said A. B., and in the 
 bed-room of the witness E. D., and that he entered the house 
 by raising a window, then such being in the house, unless 
 explained in some way by the evidence, consistently Avith 
 innocence, will justify the jury in presuming that such entry 
 was made with a felonious intent, in manner and form as 
 charared in the indictment. Com. vs. 'SAedd, 140 Mass., 451.
 
 BUEGLAET. 669 
 
 § 3. Intent Must Appear. — The jury are instructed, that in 
 order to convict the defendant of the crime of bnrgkry, as 
 charged in the indictment, the prosecution must prove to the 
 satisfaction of the jury, and to the exckision of every reason- 
 able doubt, not only that the defendant willfull}^, forcibly, 
 maliciously and burglariously broke and entered the house of 
 the said A. B., but also that he broke and entei-ed said house 
 with the intent and for the purpose of stealing the goods and 
 chattels of the said A. B., then and there being in said 
 house; and if the prosecution has failed to prove either of 
 these essential elements of the crime, as charged in the indict- 
 ment, beyond a reasonable doubt, then the jury should acquit 
 the defendant. 
 
 § 4. What Constitutes a Breaking. — The court instructs the 
 jury, that while it is necessary, in order to constitute the crime 
 of burglary, that there should be a breaking and an entry of 
 the building described in the indictment, with the intent 
 therein charged, yet to constitute a breaking into the building 
 it is not necessary that any injury should be done to the build- 
 ing, its doors or windows; such breaking may be actual or 
 constructive. An actual breaking may be by lifting a latch 
 and oj^-ening a door, by turning back or opening the lock and 
 opening the door, removing or breaking a pane of glass, or 
 raising a window, or anything by which an obstruction to 
 entering the building by the body, or any part of it, is removed, 
 is a breaking within the meaning of the law. Timmons vs. 
 State, 34 Ohio St., 426; Dennis vs. People, 27 Mich., 151 ; 
 State vs. Reid, 20 la., 413; Harris vs. People, 44 Mich., 305. 
 
 A constructive breaking is committed when admission is 
 obtained by threats, or by fraud, or false pretenses. Johnson 
 vs. Com., 85 Penn. St., 54. 
 
 § 5. What Constitutes an Entry. — And to constitute an entiy 
 within the meaning of the law it is not necessary that the 
 whole body should be introduced into the building. It is 
 sufficient if the hand, or even a finger, or any instrument held 
 in the hand is introduced into the building for the purpose 
 and with the intent charged in the indictment. 3 Greenlf. 
 Evi., § 76-77; Eoscoe's Grim. Evi., 341-346; 1 Bishop Grim. 
 Law, § 327.
 
 670 BUEGLAET. 
 
 § 6. May be Found Guilty of Larceny. — The jury are in- 
 structed, that under an indictment for bnrglarj the accused 
 may be found guilty of a larceny, and in this case, if the jury 
 are not satisfied, from the evidence, that the defendant com- 
 mitted the burglary, as charged in the indictment, still, if the 
 jury believe, from the evidence, beyond a reasonable doubt, 
 that the defendant did steal the goods described in the indict- 
 ment, from the possession of the said A. B., then the jury 
 may, under this indictment, find the defendant guilty of lar- 
 ceny.
 
 CHAPTER LIV. 
 
 CKIMI^^AL CONSPIKACIES. 
 
 Sec. 1. Conspiracy defined. 
 
 2. Circumstantial evidence competent proof. 
 
 3. Sufficient proof of common design. 
 
 4. Participants after the conspiracy is formed. 
 
 5. Not necessary that the design should succeed. 
 
 6. Not necessary that the meeting should have been for unlawful 
 
 purposes. 
 
 7. A common design the essence of the charge. 
 
 8. Conspiracy to commit an assault — Defendant's instructions. 
 
 9. Conspiracy to cheat and defraud. 
 
 § 1. Conspiracy Defined. — The court instructs the jury, as 
 a matter of law, that a conspiracy is a combination of two or 
 more persons by some concert of action to accomplish some 
 criminal or unlawful purpose, or some purpose, not in itself 
 criminal or unlawful, by criminal or unlawful means. State 
 vs. Rowley. 12 Conn., 101; Smith vs. Peojple^ 25 111., IT; 
 Alderman vs. Peojple^ 4 Mich ., 414. 
 
 § 2. Circumstantial Evidence Competent Proof. — The court 
 instructs the jury, as a matter of law, that the evidence in 
 proof of a conspiracy will, in general, be circumstantial ; and, 
 although the common design is the essence of the charge, it is 
 not necessary to prove that the defendants came together and 
 actually agreed, in terms, to have that design and to pursue it 
 by common means. Spies et al. vs. The People, 12 N. E. 
 Rep., 865; 3 Greenl. on Ev., § 83; The Mussel-Slough Case, 
 5 Fed. Rep., C80; 2 Wharton's Crim. Law, § 1398; 2 Bishop 
 Cj-im. Pro., § 227; Tucl^er vs. Fi7ich, 66 Wis., 17. 
 
 The court instructs the jury, as a matter of law, that if the 
 jury, from the acts of the parties, as proven, and from all the 
 facts and circumstan^f in evidence, believe, beyond a reason- 
 able doubt, that the defendants did pursue the common object 
 of, etc., as clmT^ged in the indictment, and by the same means, 
 
 (071)
 
 672 CEIMINAL COKSPIRACIES. 
 
 one performing one part, and anotlier another part, so as to 
 aceomplisli the common object, then the jury would be justi- 
 fied in the conchision that the defendants were engaged in a 
 conspiracy to effect that object. Kosc. Crim. Ev., 416; Smith 
 vs. The Peox>le, 25 111., 1. 
 
 § 3. Sufficient Proof of Common Design. — The court instructs 
 the jury, as a matter of law, that while it is necessary, in order 
 to establish a conspiracy, to prove a combination of two or 
 more persons, by concerted action to accomplish tiie crimina' 
 or unlawful purpose alleged in the indictment, yet it is not 
 necessary to prove that the parties ever came together and 
 entered into any formal agreement or arrangement between 
 themselves to effect such purpose; the combination, or com- 
 mon design, or object, may be regarded as proved, if the jury 
 believe, from the evidence, beyond a reasonable doubt, that 
 the parties charged were actually pursuing, in concert, the 
 unlawful object stated in the indictment, whether acting sepa- 
 rately or together, by common or difteient means; providing 
 all were leading to the same unlawful result. U. S. vs. Cole, 5 
 M. C. Lane, 513. 
 
 § 4. Participants after the Conspiracy is Formed. — The court 
 instructs the jur3^ as a matter of law, that all who take part in 
 a conspiracy after it is formed, and while it is in execution, 
 and all who, with knowledge of the facts, concur in the plans 
 originally formed and aid in executing them, are fellow con- 
 spirators. Their concurrence, without proof of an agreement 
 to concur, is conclusive against them. They commit the 
 offense when they become partners to the transaction, or further 
 the original plan. Peojple vs. Mather, 4 Wend., 229. 
 
 § 5. Not Necessary that the Design Should Succeed. — The 
 court instructs the jury, as a matter of law, that to constitute 
 the crime of conspiracy it is not necessary that the conspira- 
 tors should succeed in their designs. Nor is any overt act 
 necessary to complete the crime; the offense is complete 
 when the confederacy to pursue the common purpose is made. 
 State vs. Ridley, 31 Me., 386; Alderman vs. The People, 4 
 Mich., 414; State v&. Pulle, 12 Minn., 164; State vs. Straw, 
 42 N. H., 393 ; Johnson vs. State, 3 Tex. Ai^p., 590.
 
 CKIMINAL CONSriKACIES. 673 
 
 The court instructs the jury, as a matter of law, that to con- 
 stitute the crime of conspiracy it is not necessary that the con- 
 spirators should succeed in their design; it is enough if the 
 connnou design was formed, in manner and form as charged 
 in the indictment, and that any act was done iu furtherance 
 of such design by any one of the conspirators. If the con- 
 spiracy, charged in the indictment, has been proved to the 
 satisfaction of the jury, beyond a reasonable doubt, then the 
 act of any one of the conspirators, in furtherance of the com- 
 mon design, if proved, will be regarded as the act of all. State vs- 
 Norton^ 23 N. J. L., 33 j Com. vs. Cwwninshield, 10 Pick., 497. 
 
 § 6. Not Necessary that the Meeting Should Have Been for an 
 Unhiwtul Purpose. — Though the jury may believe, from the evi- 
 dence, that when the parties came together upon the occasion 
 in question, they met for some lawful purpose, yet, if the 
 jury furtlier believe, from the evidence, beyond a reasonable 
 doubt, that they then joined in attempting to accomplish the 
 unlawful purpose stated in the indictment, in manner and form 
 as therein alleged, then this would be sufficient evidence of a 
 conspiracy to accomplish such purpose, and it is unnecessary 
 to prove any previous plan or understanding to that effect 
 by the parties. Lowery vs. State^ 30 Tex., 402; 3 Greenlf. 
 Evi., § 93. 
 
 § 7. A Common Design, the Essence of the Charge. — A com- 
 mon design, or purpose, by two or more persons, is the essence 
 of the charge of conspiracy, and this common design must be 
 proved in order to warrant a conviction, either by direct evi- 
 dence or by the proof of such circumstances as naturally tend 
 to prove it, and sufficient, in themselves, to satisfy the jury of 
 the existence of such common design beyond a reasonable 
 doubt. 
 
 § 8. Conspiracy to Commit an Assault — Defendant's Instructions 
 
 — The jury are instructed, that iu order to warrant a convic- 
 tion in this case, the prosecution must prove, beyond a reason- 
 able doubt, that the defendants, or some two of them, are guilty 
 of the crime charged in the indictment. 
 
 To authorize a conviction in this case, it is not enough for 
 43
 
 674 CKIMIKAL CONSPIEACIES. 
 
 the prosecution to prove that an assault was committed; it 
 must further appear, from the evidence, beyond a reasonable 
 doubt, that at least two of the defendants had formed a common 
 design to assault the said A. B., or else took part in such 
 assault, or were present, aiding, abetting, advisingor encourag- 
 ing the same, otherwise the jury should find all the defendants 
 not guilty. 
 
 Although tlie jury may believe, from the evidence, that the 
 defendant A. struck the prosecuting witness at the time in 
 question, still, unless the jury further believe, from the evi- 
 dence, beyond a reasonable doubt, that one of the other defend- 
 ants was present, aiding, abetting, advising or encouraging 
 such striking, the striking alone would not constitute a con- 
 spiracy. 
 
 Although the jury may believe, from the evidence, beyond 
 a reasonable doubt, that one of the defendants threw a stone 
 and struck the prosecuting witness, still, tliat of itself would 
 not authorize a conviction in this case. To authorize a convic- 
 tion for conspiracy, it should further appear, from the evi- 
 dence, to the exclusion of every reasonable doubt, that one or 
 more of the other defendants took part in the difficulty, or in 
 some manner aided, abetted, advised or encouraged the same, 
 and that tliis was done in pursuance of a common design. 
 
 Although the jury may believe, from the evidence, beyond 
 a reasonable doubt, that, upon the occasion in question, there 
 was an assault and battery committed upon the said A. B., by 
 two or more of the defendants, still, this alone would not bo 
 sufficient to warrant a conviction for the crime of conspiracy; 
 provided, the jurj- believe, from the evidence, that each of the 
 parties so assaulting acted upon his own motion and without 
 any reference to the acts or intention of the other defendants, 
 and without any concert of action to accomplish a common 
 design or purpose. 
 
 § 9. Conspiracy to Cheat and Defrand — Illinois. — The court 
 instructs the jury, as a matter of law, that if any two or more 
 persons conspire and agree together, with the fraudulent or 
 malicious intent wrongfully and wickedly to injure the person, 
 character, business or property of another, or to obtain money 
 or other property by false pretenses, or to do any illegal act,
 
 CRIMINAL CONSriRACIES. 675 
 
 injurious to the public trade, healtli, morals, police or admin- 
 istration of public justice, or to prevent comjietition in the 
 letting of any contract by the state or the authorities of any 
 county, city, town or village, or to induce any person not to 
 enter into such competition, or to commit any felony, they 
 shall be deemed guilty of a conspiracy; and every such of- 
 fender, and every person convicted of conspiracy, at common 
 law shall be imprisoned in the penitentiary not exceeding three 
 years, or fined not exceeding $1,000.
 
 CHAPTER LV. 
 HOMICIDE. 
 
 Sec. 1. Homicide generally. 
 
 MUKDEK GENEKALLT. 
 
 2. Murder defined. 
 
 3. Express malice. 
 
 4. Implied malice. 
 
 5. Presumption from killing. 
 
 6. Involuntary killing — Act naturally tending. 
 
 7. Involuntary killing — In the commission of a crime. 
 
 8. Blow with a deadly weapon. 
 
 9. Same — No considerable provocation appearing. 
 
 10. Words not sufficient provocation. 
 
 11. The cause of death must be proved. 
 
 12. Wound not necessarily fatal — Death from neglect. 
 
 MDEDEE — FIEST AND SECOND DEGKEES. 
 
 13. Murder defined. , 
 
 14. Of the first degree. 
 
 15. Of the second degree. 
 
 16. Elements of murder in the first degree. 
 
 17. Killing, willfully, etc. 
 
 18. No length of deliberation, etc., required. 
 
 19. Premeditated design. 
 
 20. Same — Mutual combat. 
 
 21. Intoxication as affecting intent. 
 
 22. By poisoning — Material averments to be proved. 
 
 23. Not necessary to prove the particular poison or quantity. 
 
 24. Death hastened by poison, etc. 
 
 25. Circumstantial evidence must exclude, etc. 
 
 26. Circumstances pointing as strong to some other person. 
 
 27. Pointing to suicide. 
 
 28. Doubt as to which of two or more is guilty. 
 
 29. Murder not reduced to manslaughter by provoking words. 
 80. Verdict may be for lesser crime. 
 
 31. Verdict may be for manslaughter. 
 
 MANSLAUGHTEE. 
 
 82. Manslaughter defined. 
 
 33. Voluntary. 
 
 84. Involuntary. 
 
 (676)
 
 HOMICIDE. 677 
 
 Sec. 35. Malice defined. 
 
 36. Malice denotes any wicked or corrupt motive. 
 
 37. Malice presumed, when. 
 
 38. Malice aforethought. 
 
 39. Malice implied. 
 
 40. Intent, how proved. 
 
 41. Presumed to intend the natural consequences of his act. 
 
 42. Criminal responsibility. 
 
 43. When not responsible. 
 
 44. Burden of proof. 
 
 45. Reasonable doubt as to sanity. 
 
 46. Sanity presumed — Insanity must be proved. 
 
 47. Impulse of passion no defense. 
 
 48. Act must be in consequence, etc. 
 
 49. Partial insanity. 
 
 50. Insanity the efEcient cause, etc. 
 
 51. The test of insanity. 
 
 52. Drunkenness no excuse for crime. 
 63. Justifiable homicide — Self-defense. 
 
 54. Danger need not be real, if reasonably apparent. 
 
 55. Force may be resisted by force. 
 
 56. Assailant retiring from the fight. 
 
 57. Defense of habitation. 
 
 58. Attack provoked by defendant. 
 
 59. Danger must be reasonably apparent. 
 
 HOMICIDE. 
 
 § 1. Homicide Generally. — The Jury are instructed that the 
 killing of a human being may be either justifiable, excusable, 
 or felonious and criminal. The killing is justifiable when 
 done in the necessary, or apparently necessary, defense of 
 one's self or family from great bodily harm, attempted to be 
 committed by force. It is excusable when one, in doing a 
 lawful act, by mere accident unfortunately kills another. 
 Such killing, when it is neither justifiable nor excusable, is 
 felonious and criminal, and it may be either murder or man- 
 slaughter. 
 
 MUEDEK GENEEALLT. 
 
 § 2, Mnrder Defined. — The crime of mnrdei" is committed 
 when a person of sound memory and discretion unlawful!}' 
 kills any reasonable creature in being, under the peace of the 
 state, with malice aforethought, either expressed or implied
 
 678 HOMICIDE. 
 
 Euss. on Cri., 482; Wliart. Am. Grim. Law, 356; 3 Greenlf. 
 Evi., § 130. 
 
 § 3. Express Malice. — Express malice is that deliberate in- 
 tention unlawfully to take away the life of a fellow-creature, 
 which is manifested bj external circumstances capable of 
 proof. 
 
 § 4. Implied Malice. — Malice is implied when no consider- 
 able provocation appears, or when all the circumstances of the 
 killing show ar. abandoned and malignant heart. R. S. 111., 
 Ch. 38, § 140. 
 
 § 5. Presumption from Killing. — The jury are instructed, that 
 if the killing of the person mentioned in the indictment is 
 satisfactorily shown by the evidence, beyond all reasonable 
 doubt, to liave been the act of the defendants, or either of 
 them, then the law pronounces such killing murder, unless it 
 appears, from the evidence, that circumstances existed excusing 
 or justifying the act, or mitigating it, so as to make it man- 
 slaughter, as explained in these instructions. Brown vs. State ^ 
 4 Tex. App., 275. 
 
 § 6. Involuntary Killing — Act Naturally Tending. — The court 
 further instructs the jury, that when an unlawful, unintentional 
 killing of a human being happens in the commission of an 
 unlawful act, which in its consequences naturally tends to 
 destroy the life of a human being, the offense will be murder 
 and not manslaugliter. 2 Whar. on Grim. Law, 967. 
 
 § 7. Involuntary Killing — In the Commission of a Crime. — The 
 
 court further instructs the jury, that when an unlawful, unin- 
 tentional killing of a human being happens, or is committed 
 in the prosecution of any felonious intent, as explained in these 
 instructions, the killing will be murder and not manslaughter. 
 If the jury believe, from the evidence, beyond a reasonable 
 doubt, that at the time of the alleged killing the defendants 
 had entered the house of the deceased, for the purpose of 
 stealing and carrying away any article of personal property 
 therein, and that, in the prosecution of that purpose, or in his
 
 HOMICIDE. 679 
 
 efforts to escape from the house with such property, the 
 defendant struck the deceased and tlierebj caused his dcatli, 
 then such killing would be murder and not manslaughter, and 
 it would be wholly immaterial whether such killinsr was in- 
 tentional or not. 2 Bish. on Crim. Law, 720; Bissott vs. 
 State, 53 Ind.. 408. 
 
 If the jury believe, from the evidence, beyond a reasonable 
 doubt, that the said J. was killed by the defendant, and also, 
 that at the time the defendant was engaged in an attempt to 
 rob the deceased, then the defendant is guilty of murder in the 
 lirst degree, although he may have had no intention to take 
 the life of the said J. Monihaii vs. State^ 7 Ind., 126. 
 
 If the jury find, from the evidence, beyond a reasonable 
 doubt, that at the time of the alleged killing, the defendants, 
 or either of them, made an attack upon the deceased for the 
 purpose or with the intent of feloniously taking from him, by 
 force and against his will, his money, watch or other articles 
 of personal property, and that in the prosecution of that pur- 
 pose either one of the defendants sti-uck the deceased, and 
 thereby caused his deatli, in manner and form as charged in 
 the indictment, then such killing would be murder, not only 
 on the part of the one who struck the blow, but also on the 
 part of any one or more of the defendants who were present, 
 aiding or assisting in the original attempt to take the property 
 of the deceased by force or against his will ; if the jury tind, 
 from the evidence, beyond a reasonable doubt, that either of 
 the other defendants was so present, aiding and abetting ; and 
 in such case it would be wholly immaterial whether the blow 
 was struck with the intention of taking the life of the de- 
 ceased, or only of disabling him. 
 
 § 8. Blow with Doatlly Weapon. — If the jury believe, from 
 the evidence, beyond a reasonable doubt, that the defendant 
 killed the deceased by striking him on the head with a stick, 
 that the size of the stick was such, that in the hands of a man 
 of ordinary strength, striking with it a violent blow on the head, 
 it was a dangerous weapon, and that the natural consequence 
 of the blow struck by the defendant upon the head of the 
 deceased was to destroy his life, and that his death was caused 
 by such blow, then the jury should find the defendant guilty
 
 680 HOMICIDE. 
 
 of murder; provided, that they further believe, from the evi- 
 dence, beyond a reasonab'o doubt, that the blow was struck 
 with malice aforethought, ur when no considerable provocation 
 appeared. 2 Whart. on Crim. Law, 971. 
 
 If the I'ury believe, from the evidence, beyond a reasonable 
 doubt, that the defendant struck the deceased, and knocked 
 him down, in manner and form as charged in the indictment, 
 willfully and intentiimally, and without legal excuse or justifi- 
 cation, as the same is explained in these instructions, and that 
 the deceased died in consequence of such striking and knock- 
 ing down, in manner and form as charged in the indictment, 
 then the jury should find the defendant guilty. 
 
 And if the jury further believe, from the evidence, beyond 
 a reasonable doubt, that the defendant struck the deceabcd on 
 the head with such a stick, that the violence of the blow 
 knocked him down and produced insensibility, speechlessness 
 and other symptoms of a fatal character, and that, suffering 
 
 great agony, he died within the sj^ace of or thereabouts, 
 
 after the blow was given, then these are ciicum stances which 
 the jury should take into consideration, together with all the 
 other evidence in the case, in determining whether or not the 
 blow was what occasioned the death of the deceased. Davis 
 vs. The People, 19 111., 74; Keenan vs. Com., 44 Penn. St., 55. 
 
 § 9. Blow with Deadly Weapon — Xo Considerable Provocation 
 etc. — If the jury believe, from the evidence, beyond a reason- 
 able doubt, that on or about, etc, the defendant and deceased 
 met at, etc., within the county, etc., and a quarrel ensued be- 
 tween them, and that the defendant then and there struck tlie 
 deceased a blow on the head with a dangerous and deadly 
 weapon, as charged in the indictment, without any consider- 
 able provocation, or without such provocation as was appar- 
 ently sufficient to excite sudden and irresistible passion, and 
 that, on the same day, d, ceased died frcjm the effect of that 
 blow, then tlie jury should find tlie defendant guilty of mur- 
 der, unless the jury further find, from the evidence, that the 
 defendant inflicted the fatal blow in self-defense to save his 
 own life, or to prevent great bodily harm to liimself, and 
 under such circumstances that a reasonable person might rea- 
 sonably ai)prehend danger to his own life, or great bodily harm 
 to himself.
 
 HoanciDE. 6S1 
 
 § 10. Words no Safficiont Provocation. — The court instructs 
 tlie jurj, that no provocation by words only, however oppro- 
 brious, will mitigate an intenHonal killing so as to reduce the 
 killing to manslaughter. 2 "Whart. Crira. Law, 970; Ray vs. 
 State, 1^ Ga., 223; Bapp vs. State, 14 B. Monroe, 494; State 
 vs. Starr, 38 Mo., 270; Martin vs. People, 30 Wis., 210. 
 
 And although the jury may believe, from the evidence^ 
 that insulting and o])probrious epithets were used by the de- 
 ceased to the defendant, yet, if the jury further believe, from 
 the evidence, beyond a reasonable doubt, that the defendant 
 immediately revenged himself by the use of a dangerous and 
 deadly weapon, in a manner likely to cause the death of the 
 deceased, and did, thereby, cause his death, then the defend- 
 ant is guilty of murder, and the jury should so find by their 
 verdict. 
 
 § 11. Cause of the Death Must be Proved. — The court in- 
 structs the jury, that it is incumbent upon the people to show 
 by ])roof, beyond a reasonable doubt, that the deceased came 
 to liis death by reason of the injury inflicted on him by the 
 pistol ball in question. The people must show, not that such 
 injur}"- was probably the cause of the death, but tliat it Avas 
 the efficient and immediate cause of death; and the evidence 
 must establish this fact beyond any reasonable doubt, and if 
 this has not been done the jury should find the defendant not 
 guilty. 
 
 § 12. Wound not Necessarily Fatal — Death from Neglect. — 
 
 The law is, that if one unlawfully inflicts upon another a 
 wound which is not in its nature necessarily mortal, but 
 which might be cured by proper care and surgical treatment, 
 and the person injured neglects to procure such care, or 
 refuses to receive such surgical treatment, and he die of the 
 wound owing to such want of care and treatment, this will 
 not excuse the person inflicting the wound ; and if, in such 
 case, the jury further believe, from the evidence, beyond a 
 reasonable doubt, that the injury was inflicted by accused with 
 malice aforethought, as explained in these instructions, and 
 that the deceased died from such wounds, then the jury 
 should find the accused guilty of murder. 3 Greenl. Ev..
 
 682 HOMICIDE. 
 
 §139; 2 Bishop Grim. Law, § 679-6S0 ; State vs. Bautley, 44 
 Conn., 53T ; Williams vs. The State, 2 Tex. App., 271. 
 
 Upon the question, what was the cause of the death of the 
 deceased, the coart instructs jou that in order to convict 
 the defendant under this indictment, you must be able, from 
 the evidence, to trace the death to the injury alleged to have 
 been inflicted by the defendant and that, too, beyond any rea- 
 sonable doubt. People vs. Cook, 39 Mich., 236. 
 
 If you believe, from the evidence, beyond a reasonable 
 doubt, that the gunshot wound was in itself mortal and rea- 
 sonably calculated from its nature and extent to produce death 
 witliout any medical or surgical treatment, then it would be 
 no defense that the deceased, under better or different medical 
 treatment, might or probably would have recovered, nor will 
 the law justify a verdict of acquittal, merely upon the ground, 
 if proved, that the medicine administered or the surgical 
 treatment adopted to restore or relieve the deceased in point 
 of fact co-operated with the wound in producing death. It 
 would be enough if you believe, from the evidence, beyond a 
 reasonable doubt, that the gunshot wound would of itself have 
 resulted in death and that it did in fact contribute directly to 
 the death, provided also, you further believe, from the evi- 
 dence, beyond a reasonable doubt, that the said wound was in- 
 flicted with malice aforethought. People vs. Cool', 39 Mich., 
 236; Bowles vs. State. 58 Ala., 335. 
 
 On the other hand, if you entertain any reasonable doubt as 
 to whether the gunshot wound was mortal in itself, or rea- 
 sonably calculated from its nature and extent to produce death, 
 and whether death did ensue solely from (morphine poison.) 
 and to which the wound did not materially contribute, then 
 you should acquit the defendant. 
 
 If one person inflicts wounds upon another, which are 
 dangerous in themselves, though not necessarily fatal, but 
 wliich do produce death through a chain of natural causes and 
 effects, uninfluenced by human action, then the wounds are to 
 be regarded as the cause of the death. And in this case if you 
 believe, from the evidence, beyond a reasonable doubt, that the 
 defendant did inflict wounds ujwn the deceased, in manner and 
 form as charged in the indictment, and that these wounds were 
 dangerous in themselves though not necessarily fatal, and that
 
 HOMICIDE. 683 
 
 these wounds caused congestion of the brain, and that the 
 deceased died of such congestion or that the congestion caused 
 him to expose himself to the inclemency of the weather, and 
 that such exposure was the immediate cause of his death, still, 
 in law, it will be held that the defendant, bv inflictino- the 
 wounds, caused the death of the deceased. Kelley vs. IState^ 
 53 Ind., 311. 
 
 If the jury believe, from the evidence, beyond a reasonable 
 doubt, that the defendant, with malice aforethought, shot at 
 and hit the deceased with the pistol ball, and thereby inflicted 
 upon him a wound of which he afterwards died, in manner and 
 form as charged in the indictment, then the defendant is guilty 
 of murder, although the jury may further believe, from the 
 evidence, that the wound was not necessarily mortal, and that, 
 with proper care and treatment, the deceased might have re- 
 covered. It is sufHcient, in such cases, to warrant a conviction 
 of the defendant, if the jury find, from the evidence, beyond 
 a reasonable doubt, that the deceased died from the effect of 
 the wound, and not from his own misconduct or positive ill- 
 treatment of his physician or others. 
 
 MTEDEE FIEST AND SECOND DEGREE. 
 
 § 13. Murder Defined. — The court instructs the jury, that, 
 in this state, whoever kills a human being, with malice afore- 
 thought, is guilty of murder. 
 
 If a person forms in his mind a purpose, design or intention 
 to unlawfully kill a human being with malice but without 
 premeditation, and he does so kill a human being, then the 
 offense comes within our statute defining murder in the sec- 
 ond degree; but if the element of premeditation is also pres- 
 ent before the fatal blow is struck, then it is muider in the 
 first degree. Archie vs. State, 64 Ind., 56. 
 
 § 14. Of the First Degree. — The jury are further instructed, 
 that all murder which is perpetrated by means of poisoning, 
 or lying in wait, or any other kind of willful, deliberate and 
 premeditated killing (or which is committed in the perpetra- 
 tion or attempt to perpetrate any arson, rape, robbery, mayhem 
 or burglary) is murder of the first degree.
 
 684 HOMICIDE. 
 
 § 15. Of the Seconfl Degree. — Tlie jury are further instruct- 
 ed, that whoever commits murder otherwise than by means 
 of poison or lyin^ in wait, or other kind of willful, deliberate 
 and premeditated killing (or which is committed, etc.), is 
 guilty of murder in the second degree. 
 
 The jury are instructed, as a matter of law, that when the 
 unlawful killing of a human being is the result of malice sud- 
 denly produced at the time a fatal blow is struck and the 
 killing is without premeditation or deliberation, then such 
 killing is murder in the second degree. McQueen vs. State, 
 
 1 Lea (Tenn.), 285. 
 
 § 16. Elements of Murder in the First Degree. — The court 
 instructs the jury, that under our statute, to constitute murder 
 in the first degree, the jury must be satisfied, beyond a reason- 
 able doubt, from the evidence, not only that the defendant, 
 without any justifiable cause or legal excuse, as explained in 
 these instructions, killed the deceased in manner and form as 
 charged in the indictment, but they must further believe, from 
 the evidence, beyond an}' reasonaljle doubt, that at the time 
 the defendant struck the fatal blow he had formed in his 
 mind a deliberate, willful and premeditated purpose to kill the 
 deceased, and that he struck the blow with the intention of 
 effecting that purpose (or that he killed the deceased while 
 attempting to perpetrate the crime, etc.) Pj'inues vs. State, 
 
 2 Tex. App., 369; State vs. Melton, 67 Mo., 594; Cox vs. 
 State, 5 Tex. App., 493. 
 
 Although the jury may believe, from the evidence, beyond 
 a I'easonable doubt, that the defendant, without justifiable cause 
 or legal excuse, as explained in these instructions, killed tlie 
 deceased, still, if you entertain any reasonable doubt whether 
 thekilling was willful, deliberate and premeditated, or whether 
 the fatal blow was struck with deliberate intent on the i^art of 
 the defendant that the blow should take the life of the de- 
 ceased, (or in the attempt to commit, etc.), then the jury 
 should only find the defendant guilty of murder in the second 
 degree. 
 
 § 17. Killing Willfully, etc. — That under our statute, the 
 defendant in this case cannot be found guilty of murder in the
 
 HOMICIDE. GS5 
 
 first degree unless the jury are satisfied, from the evidence, 
 beyond a reasonable doubt, not only that the defendant is 
 guilty of feloniously killing the deceased, but it must further 
 appear, from the evidence, beyond a reasonable doubt, that 
 such killing was done willfully, deliberately and with premedi- 
 tation; that is, that it was done intentionally, sanely and with 
 prior deliberation. And unless all these appear, from the 
 evidence, beyond a reasonable doubt, the jury cannot lawfully 
 find the defendant guilty of murder in the first degree. 
 "Wharton's Law of Homicide, 368. 
 
 § 18. No Length of Deliberation, etc., Required. — The jury are 
 instructed, that while the law requires, in order to constitute 
 murder of the first degree, that the killing shall be willful, de- 
 liberate and premeditated, still, it does not require that the 
 willful intent, premeditation or deliberation, shall exist for any 
 length of time before the crime is committed; it is sufficient 
 if there was a design and determination to kill distinctly formed 
 in the mind at any moment before or at the time the blow is 
 struck; and in this case, if the jury believe, from the evidence, 
 beyond a reasonable doubt, that the defendant feloniously 
 struck and killed the deceased, as charged in the indictment, 
 and that before or at the time the blow was struck the defend- 
 ant had formed in his mind a willful, deliberate|and premedi- 
 tated design or purpose to take the life of the deceased, and 
 that the blow was struck in furtherance of that design or pur- 
 pose, and without any justifiable cause or legal excuse therefor, 
 as explained in these instructions, then the jury sliould find 
 the defendant guilty of murder of the first degree. 2 Whar. 
 on Crim. Law, 948; Whar. Law of Hom., 382; 2 Bish. on 
 Crim. Law, § 750. Contra: Binns vs. State^ 'o^ Ind.. 428; 
 Fahnestock vs. The State, 23 Ind., 231-2G3; Ealbert vs. State, 
 3 Tex., 656. 
 
 To constitute mnrder in the first degree there must have 
 been an unlawful killing done, purposely and with premedi- 
 tated malice. If a person has actually formed the purpose 
 maliciously to kill, and has deliberated and premeditated upon 
 it beforb he performs the act, and then performs it, he is 
 guilty of murder in the first degree, however short the time 
 may have been between the purpose and its execution. It is
 
 686 HOMICIDE. 
 
 not time that constitutes the distinctive difference between 
 murder in the first and in the second degree ; an unlawful 
 killing, with malice, deliberati -n and premeditation constitutes 
 the crime of murder in the first degree. It matters not how 
 short the time, if the party has turned it over in his mind, 
 and weighed and deliberated upon it. FahnestocJc vs. State, 
 23 Ind., 231 ; Miller vs. State, 54 Ala., 155 ; State vs. Weiners, 
 66 Mo., 13; State vs. Ahmook, 12 Nov., 369. 
 
 § 19. Premeditated Design. — If the jury believe, from the 
 evidence, beyond a reasonable doubt, that the defendant shot 
 the deceased, and thereby caused his death, in manner and 
 form as charged in the indictment, then no matter what the 
 provocation, and no matter what the other surrounding cir- 
 cumstances may have been, unless the act of shooting was jus- 
 tifiable, as explained in these instructions, then the defendant 
 is guilty (of murder in the first degree) ; provided, you fur- 
 ther believe, from the evidence, beyond a reasonable doubt, 
 that the defendant did the shooting with a premeditated design 
 to kill the deceased. Roman vs. The State, 41 Wis., 312. 
 
 If the jury believe, from the evidence, beyond a reasonable 
 doubt, that the defendant sought a difliculty with the deceased 
 for the purpose of killing him, and with that design provoked 
 a fight with him, and in the fight did kill him in pursuance of 
 his intent of taking the life of the deceased, then the jury 
 will find the defendant guilty of murder. 
 
 If the jury believe, from the evidence, that the defendant 
 sought a quarrel with the deceased and first struck him a vio- 
 lent blow with his fist, in the expectation that the deceased 
 would resent the blow, and in his turn attack the defendant, 
 so that he might have a chance to shoot or stab the deceased, 
 and thereby take his life, and further, that in accordance with 
 such expectation the said deceased did thereupon attack the 
 defendant with his fists, and the defendant then shot the de- 
 ceased, as charged in the indictment, such killing would be 
 murder in tlie first degree. State vs. Christian, 'o^ Mo., 138. 
 
 The jury are in.-tructed, that the mere fact of an unlawful 
 killing, if proved, raises no presumption that the killing was 
 murder in the first degree, and unless the circumstances show, 
 beyond a reasonable doubt, that some degree of deliberation
 
 HOMICIDE. 6S7 
 
 took place before the killing (or in the a1 tempt, etc.), then 
 the conviction can only be for murder in the second degree. 
 Newton vs. tState^ 6 Neb., 136. 
 
 § 20. Premeditated Design — 3Iutiial Combat. — If the jury 
 believe, from the evidence, that at the time of the alleged kill- 
 ing the defendant and the deceased met together, and mutu- 
 ally agreed to engage in a personal combat, and did engage 
 in snch combat, then, if the jury further believe, from the 
 evidence, beyond a reasonable doubt, that the deceased was 
 unarmed, and that the defendant, in anticij)ation of having a 
 difficulty with deceased, had armed himself with a deadly 
 weapon without the knowledge of the deceased, with the 
 intention of using the same some time during the contest, and 
 did so use it, and thereby killed the deceased, then such kill- 
 ing would be nmrder in the first degree. State vs. Chrutlan^ 
 66 Mo., 13S. 
 
 If the jury believe, from the evidence, that at the time of 
 the alleged killing, the defendant and the deceased met, and 
 upon a sudden cause of quarrel arising between them, mutually 
 agreed to engage in a personal combat, and did so engage in 
 such combat, and if the jury further believe, from the evi- 
 dence, beyond a reasonable doubt, that during such quarrel the 
 defendant, Mathout the knowledge of the deceased, made use 
 of a deadly weapon, in such a manner as would be likely to 
 cause the death of the deceased, and did so cause it, then the 
 defendant was guilty of murder; and if the jury further 
 believe, from the evidence, that the defendant so used the 
 said deadly weapon, deliberately, and with malice afore- 
 thought, and with intent to take the life of deceased, or to do 
 him great bodily harm, then such killing would be murder in 
 the first degree. State vs. Christian^ ^<o Mo., 138. 
 
 § 21. Intoxication as Affecting Intent. — That while it is a 
 general rule of law that voluntary drunkenness is no excuse 
 or justification for a crime perpetrated under its influence, 
 still, in cases of this kind, drunkenness, if proved, may some- 
 times be considered by the jury for the purpose of determin- 
 ing whether the accused, at the time of the alleged offense, was 
 capable of forming a willful, deliberate and premeditated.
 
 688 HOMICIDE 
 
 design to take life; and in this case, although the jury may 
 believe, from the evidence, beyond a reasonable doubt, that 
 the defendant killed the deceased, in manner and form as 
 charged in the indictment, still, if you further believe, from 
 • the evidence, that before and at the time the defendant struck 
 the fatal blow he was so deeply intoxicated by spirituous 
 liquors as to be incapable of forming, in his mind, a design, 
 deliberately and premeditatedly, to do the act, then such kill- 
 ing, under such a state of intoxication, would only be murder 
 of the second degroe. Greenlf. Evi., § 148; Wharton's Law 
 on Homicide, 369; Adcwis vs. State, 29 Ohio St., 412. Contra: 
 State vs. Cross, 27 Mo., 332. 
 
 § 22. By Poisoning — 3Iaterial Averments to be Proved. — The 
 court instructs the jury, as a matter of law, that the burden of 
 proof is on the prosecution to establish, by the evidence, every 
 material allegation in the indictment, beyond a reasonable 
 doubt; and if they have failed to do so, the jury must acquit 
 the defendant. 
 
 That in order to convict the defendant of the crime charged 
 against him, the jury must iiud, from the evidence: 
 
 First. That the deceased came to his death by poison. 
 
 Second. That it was administered to him by the defendant 
 in his lifetime. 
 
 Third. That defendant administered the poison to the 
 deceased willfully and knowingly; and with the intention of 
 depriving him of life; and, 
 
 Fourth. That the deceased actually died from the effects 
 of the poison so administered to him. 
 
 And if the jury entertain any reasonable doubt upon either 
 of these material propositions, then the prosecution has failed 
 to establish its case, and the juj-y must acquit the defendant. 
 
 § 23. Not Necessary to Prove the Particular Poison or Quan- 
 tity. — The jury are instructed, that in this class of cases, where 
 the indictment charges that death was caused by pioisoning, it 
 is not necessary to prove the particular substance or kind of 
 poison used, nor is it necessary to give direct and positive proof 
 what is the quantity which would destroy life, nor is it neces- 
 sary to prove that such a quantity was found in the body of
 
 HOMICIDE. GS9 
 
 the deceased. It is sufficient, if the jnry are satisfied, by the 
 evidence, beyond a reasonable doubt, that the death was caused 
 by poison of some kind, and that the poison was administered 
 by the accused, with the intention of causing death. 3 Greenl. 
 Ev., § 135; Whart. Am. Law of Horn., 323. 
 
 § 24. Death Hastened by, etc. — Although the Jury may be- 
 lieve, from the evidence, that a few days preceding the death 
 of the deceased, he was suffering from {any disease), still, if 
 the jury further believe, from the evidence, beyond a reason- 
 able doubt, that the death of the deceased was hastened by 
 the subsequent administration of arsenic given by the defend- 
 ant, and that it was given by her for the purpose of hastening 
 his death, then the jury should find the defendant guilty, in 
 manner and form as charged in the indictment. 2 Greenl. 
 Ev., § 139 ; 2 Bishop on Grim. Law, § 679-680 ; Wharton Am. 
 Law, Horn., 241. 
 
 § 25. Circiim itantial Evidence Must Exclude, etc. — The jury 
 are instructed, that when circumstances alone are relied upon 
 by the people for a conviction, the circumstances nmst be such 
 as apply exclusively to the defendant, and such as are recon- 
 cilable with no other reasonable Iiypothesis than that of the 
 defendant's guilt; and they must satisfy the mind of the jui'y, 
 beyond a reasonable doubt, of the guilt of the defendant. 
 
 And in this case, if the jury find, from the evidence, that 
 all the criminating circumstances relied upon by the people 
 for a conviction will as well apply to another person as to the 
 defendant, or if they are reconcilable with any reasonable hy- 
 pothesis other than that of the defendant's guilt, or if they 
 do not satisfy the mind of the jury, beyond a reasonable doubt, 
 of the guilt of the defendant, then he cannot be legally con- 
 victed, and you must acquit him. 
 
 § 26. Circumstances Pointing as Strongly to Some Other Person. 
 
 — Should the jury believe, from the evidence, that the deceased 
 died from the effect of poison, adnn'nistered to him by some 
 one, still, if the jury further find, from the evidence, that 
 some other j^erson had the same opportunity to administer the 
 poison that the defendant had, and that all the circumstances 
 44
 
 690 HOMICIDE. 
 
 point as clearly to some other person as having administered 
 the poison, as to the defendant, then these facts are sufficient 
 to raise a reasonable doubt, in the mind of the jury, as to the 
 guilt of the defendant, and the jury should acquit him. 
 
 § 27. Pointing to Suicide. — Although the jury shonld be- 
 lieve, from the evidence, beyond a reasonable doubt, that the 
 deceased died from the effect of poisoning, still, if the jury 
 further find, from the evidence, that he had the same oppor- 
 tunities for taking the poison himself, without the aid of the 
 defendant, that the defendant had to give it to him, and if it 
 is possible in any reasonable manner to explain all the facts 
 and circumstances proved on the trial, consistently with the 
 hypothesis that he did take the poison himself, either for the 
 purpose of committing suicide, or as a medicine, then this is 
 sufficient to raise a reasonable doubt in the minds of the jury 
 as to the guilt of the defendant, and they should render a ver- 
 dict of not guilty. 
 
 § 28. Doubt as to AVhicli of Two or More is Guilty. — Although 
 the jury may believe, from the evidence, that the deceased 
 was killed at the time and in the manner mentioned in the 
 indictment, and that the shot that caused his death was fired 
 by E. F., or by the defendant C. D., still, if the jury are unable, 
 from the evidence, to determine by which of said persons the 
 shot was fired, then the jury should consider the case pre- 
 cisely the same as though it had been proved that some person 
 other than the defendant fired the fatal shot. 
 
 The jury are instructed, that if they find, from a considera- 
 tion of all the evidence, that it points as clearly to one A. 
 B. as the person who committed the crime in question, as 
 it does to the defendant, or if, after a fair and full considera- 
 tion of all the evidence, the jury entertain a reasonable doubt 
 as to whether the said A. B. or the defendant is the guilty 
 party, then the jury should acquit the defendant. 
 
 § 29. Murder Not Reduced to 31anslaugliter by Provoking 
 Words. — The court further instructs the jury, that where a 
 person strikes another with a deadly weapon, in a manner cal- 
 culated or likely to produce death, uo words of reproach, or
 
 HOMICIDE. 691 
 
 abuse, or gestures, however irritating or provoking, amount 
 to considerable provocation in law, so as to reduce the crime 
 of killing from murder to manslaughter, in case such blow re- 
 sults in death, Peo^ple vs. Turleij, 50 Cal., 469; Bh^d vs. 
 State, 50 Ga., 585. 
 
 In the case of a voluntary killing of a human being, without 
 lawful excuse or justification, in order to reduce the offense 
 from murder to manslaughter, there must be a serious and 
 higlily provoking injury inflicted upon the person killing, suf- 
 ficient to excite an irresistible passion in a reasonable person, 
 or an attempt, by the person killed, to commit a serious per- 
 sonal injury on the person killing. 
 
 § 30. "Verdict May be for Lesser Crime. — The indictment in 
 this case charges the highest degree of felonious homicide 
 known to the law, that is, murder in the first degree, and un- 
 der this indictment, if the evidence requires it. as explained 
 in these instructions, the jury may find the defendant guilty 
 of either murder in the first or second degree, or of voluntary 
 or involuntary manslaughter, or the jury may find the defend- 
 ant not guilty. Archey vs. State, 60 Ind., 56. 
 
 If the evidence, under the instruction of the court as to the 
 law of the case, require it, you may find the defendant guilty 
 of murder in the first or in the second degree, or j^ou may find 
 him guilty of manslaughter, or you may find him not guilty. 
 If all the allegations in the (first count of the) indictment have 
 been proved to your satisfaction, beyond a reasonable doubt, 
 you should find the defendant guilty of murder in the first 
 degree. If all the allegations of the indictment have been 
 l>roved beyond a reasonable doubt, except the allegation of 
 deliberate or premeditated killing, you should find the defend- 
 ant guilty of mui-der in the second degree; and if you find, 
 from the evidence, bej^ond a reasonable doubt, that the de- 
 fendant did unlawfully kill the deceased, upon a sudden quarrel, 
 and without malice, or uniiit'^Mtionally, while the defendant 
 was attempting to commit any unlawful act not amounting to 
 felony, then the offense would be manslaughter; or if the jury 
 have any reasonable doubt, arising upon all the evidence in 
 the case, as to the defendant being guilty of one of these 
 crimes, they should simply find the defendant not guilty. 
 Binns vs. State, QQ Ind., 428; Adams vs. State, 29 Ohio St., 462.
 
 692 HOMICIDE. 
 
 § 31. Yertliot may be for Manslaiiffhter. — The jury are in- 
 Btructed, that under an ind'ctment for nnirder, a party accused 
 may be found guilty of manslaughter. And in this case, if 
 after a careful and dispassionate consideration of all the proof 
 and circumstances in evidence before you, you have any rea- 
 sonable doubt as to whether the defendant is guilty of murder, 
 then you should consider whether he is guilty of manslaughter; 
 and if from a full and careful consideration of all the evidence 
 before you, you believe, beyond a reasonable doubt, that the 
 defendant is guilty of manslaughter, you should so find b}' 
 your verdict (and in that event it will be your duty to fix, by 
 your verdict, the term for which he shall be confined in the 
 penitentiary, which may be for any length of time, not less 
 than one year, and it may be for the term of his natural life). 
 Schnier vs. The People, 23 111., 1. 
 
 MANSLAUGHTER. 
 
 § 32. Manslaughter Defined. — ISEanslaughtor is the unlawful 
 and felonious killing of another without any malice, either 
 expressed or implied (and without any mixtu]-e of deliberation 
 whatever). It may be voluntary or involuntary. 
 
 § 33. Voluntary. — In cases of voluntar^Mnanslaughter, there 
 must be a serious and highly provoking injury inflicted upon 
 the person killing, sufficient to excite an irresistible -passion in 
 a reasonable person, or an attempt by the person killed to 
 commit a serious personal injury on the person killing. The 
 killing must be the result of the sudden, violent imjDulse of 
 passion, su]iposed to be irresistible; for if there should appear 
 to have been an interval between the assault or provocation 
 given, and the killing, sufficient for the voice of reason and 
 humanity to be heard, the killing: hall be attributed to deliber- 
 ate revenge, and punished as murder. Bruner vs. State, 58 
 lud., 159; JSTye vs. The People, 35 Mich., 16. 
 
 If the jury believe, from the evidence, beyond a reasonable 
 doubt, that the defendant unlawfully and feloniously sti-uck 
 the deceased a blow which caused his death, then to reduce 
 the killing from murder to manslaughter, the jury must be- 
 lieve, from the evidence, that the ])rovocation for tlie blow
 
 Ho:siiciDE. 693 
 
 arose at the time the blow was given, and that the passion 
 was not the result of a former i^rovocation; that such passion 
 was either anger, rage, sudden resentment or terror, which 
 rendered the defendant incapable of cool reflection upon the 
 character and results of his acts, and that the act was directly 
 caused by passion arising out of such provocation. Bayett vs. 
 IState^ 2 Tex. App., 93; ISeaU vs. State^ 59 Tenn., 459. 
 
 § 34. Involuntary. — Involuntary manslaughter consists in 
 the killing of a hnman being without any intent to do so, in 
 the commission of an unlawful act, or a lawful act which 
 probably might produce such a consequence, in an unlawful 
 manner. 
 
 If the jury believe, from the evidence, beyond a reasonable 
 doubt, that the defendant killed the deceased without any 
 legal excuse or justification, as explained in these instructions, 
 still, if the jury further believe, from the evidence, that the 
 instmment tised was not a deadly weapon, and that when the 
 defendant sti'uck the blow it was not his intention to take the 
 life of the deceased, but only to chastise him, then you should 
 find the defendant guilty of manslaughter. 2 Whar., § 94tlr- 
 931. 
 
 The jury are instructed, that if from motives of hatred, 
 revenge, jealousy, or for any wrong or injury, real or imagi- 
 nary, a sane person kills another, the killing will be referred to 
 malice, and must be regarded as murder. If, however, the 
 killing is the result of a sudden, violent impulse of passion, 
 caused by a serious or highly provoking injury inflicted upon 
 the person killing, and which is sufficient, in the minds of the 
 jury, to excite an irresistible passion in a reasonable person, 
 and the interval of time between the provocation and the kill- 
 ing is not sufficient for the passions to cool and the voice of 
 reason and humanity to be heard, then the killing is man- 
 slaughter, and not murder. Schnier vs. The Peojple, 23 111., 
 1; Fisher vs. The People, 23 111., 283. 
 
 The jury are instructed, that if they believe, from the evi- 
 dence, that defendant voluntarily got into a difficulty, or 
 flght, with the deceased, but did not intend to kill him, at the 
 time, and did not decline further fighting before the fatal 
 blow was struck, and then drew his knife, and with it struck
 
 694 HOMICIDE. 
 
 and killed the deceased, then the jury should find the defend- 
 ant guilty of manslaughter; although the jury may further 
 helieve, from the evidence, that the cutting and killing were 
 done in order to prevent the deceased from getting the 
 advantage in the fight, or doing the defendant great bodily 
 injury. 
 
 MALICE AND INTENT. 
 
 § 35. Malice Defined. — The court instructs the jury, that 
 malice, within the meaning of the law, includes not only anger, 
 hatred and revenge, but every other unlawful and unjustifiable 
 motive. State vs. Goodenow, 65 Me., 30 ; State vs. Weeners, 
 QQ Mo., 13. 
 
 § 36. Malice Denotes any Wicked or Corrupt Motive. — That 
 malice is not confined to ill-will towards an individual, but it 
 is intended to denote an action flowing from any wicked and 
 corrupt motive. A thing done with a wicked mind, and at- 
 tended with such circumstances as plainly indicate a heart re- 
 gardless of social duty, and fully bent on mischief, indicates 
 malice within the meaning of the law ; hence, malice is implied 
 from any deliberate and cool act against another, however 
 sudden, which sliows an abandoned and malignant heart. 
 Archey vs. State, 64 Ind., 56. 
 
 § 37. Malice Presumed, "Wlien. — The court instructs the jury, 
 that if, without such provocation as is apparently sufiicient to 
 excite irresistible ])assion, a person strikes another with a deadly 
 weapon, likely to occasion death, altlioiigh he had no previous 
 malice or ill-will against the party struck, yet he is presumed 
 to have had such malice at the moment of striking, and if 
 death results from the blow it will be murder. 
 
 § 38. Malice Aforethought. — The jury are instructed, that 
 the deliberate intention, called malice aforethought, need be 
 only such deliberation and thought as enables a jierson to ap- 
 preciate and understand, at the time the act was committed, 
 the nature of his act and its probable results. 
 
 To constitute malice aforethought, no particular time need
 
 HOMICIDE. 695 
 
 intervene between the formation of the intention and the act; 
 
 it is enough if the intent to commit the act, with a full appre- 
 ciation of the result likely to follow, was ])resent at the time 
 the act was committed, and that the act was not the result of 
 some sudden heat of passion, provoked by some cause calcu- 
 lated to override the judgment, and before sufficient time 
 elapsed for reason to resume its sway. Nye vs. Peo^le^ 35 
 Mich., 16. 
 
 § 39. 3Ialice Implied. — The jury are instructed, that malice 
 is always implied in law from a willful and criminal act, unless 
 the evidence shows that the defendant was acting from some 
 innocent or proper motive. 
 
 § 40. Intent, How Proved. — Upon the question of intent, the 
 court instructs the jury, that the law presumes a man to intend 
 the reasonable and natural consequences of any act intention- 
 ally done; and this presumption of law will always prevail, 
 unless, from a consideration of all the evidence bearing upon 
 the point, the jury entertain a reasonable doubt whether such 
 intention did exist. 
 
 § 41. Presumed to Intend the Natural Consequences of the Act. 
 — That the law presumes that a person intends all the natural, 
 probable and usual consequences of his act; that when one 
 person assaults another violently with a dangerous weapon, 
 likely to kill, not in self-defense, or in defense of habitation, 
 property or person, and not in a sudden heat of passion caused 
 by a provocation apparently sufficient to make the passion irre- 
 sistible or involuntar}', and the life of the party thus assaulted 
 is actually destroyed in consequence of such assault, then the 
 legal and natural presumption is that death or great bodily 
 harm was intended, and in such case the law implies malice, 
 and such killing would be murder. 
 
 The accused is presumed to have been of sound mind, at the 
 time of the alleged killing, unless the evidence leaves a reason- 
 able doubt, in the minds of the jury, u]K)n that point. The 
 law presumes, that every sane person contemplates and intends 
 the natural, ordinary and usual consequences of Jiis own volun- 
 tary acts, unless the contrary appears, from the evidence; and
 
 696 HOillCIDE. 
 
 if a man is shown by the evidence, beyond a reasonable doubt, 
 to have killed another by any act, the natural and ordinary 
 consequences of which would be to produce death, then it will 
 be presumed that the death of the deceased was designed by 
 the slayer, unless the facts and circumstances of the killing or 
 the evidence creates a reasonable doubt whether the killing: 
 was done purposely. Archey vs. Slaie, 64 Ind., 56. 
 
 INSANITY AS A DEFENSE. 
 
 § 42. Crlniiii;»l Responsibility. — Tlie jury are instructed, as a 
 matter of law, that if a person lias cap^acity and reason suf- 
 ficient to enable him to distinguish between right and wrong 
 as to the particular act in question — that is, if he has knowl- 
 edge and is conscious that the act he is doing is wrong and 
 would deserve punishment— he is, in the eye of the law, of 
 sound mind and memory, and ca]3able of cummitting crime. 
 Brin.liey vs. The State. 58 Ga., 296. 
 
 If you believe, from the evidence, beyond a reasonable 
 doubt, that at the time of committing the alleged act the de- 
 fendant was able to distinguish riglit from wrong, then you 
 cannot acquit him on the ground of insanity. 
 
 If you believe, from the evidence, be3^ond a reasonable 
 doubt, that the defendant committed the crime in manner and 
 form as cliarged in the indictment, and at the time of com- 
 mitting such act was able to distinguish right from wrong, 
 you should tind him guilty. 
 
 If, from all the evidence in the case, you believe, be3'ond a 
 reasonable doubt, that the defendant couniiitted the crime of 
 which he is accused, in manner and form as charged in the 
 indictment, and that at the time of the commission of such 
 crime the defendant knew that it was wrong to commit 
 such crime, and was mentally capable of choosing either to do 
 or not to do the act or acts constituting such crime, and of 
 governing his conduct in accordance with such choice, then 
 it is your duty, under the law, to find him guilty, even though 
 you should believe, from the evidence, that at the time of the 
 commission of the crime he was not entirely and perfectly 
 sane, or that ho was greatly excited or enraged, or under the 
 influence of intoxicating liquor. JDimn vs. Peojple^ 109 111., 635.
 
 HOMICIDE. G97 
 
 In tills case it is claimed for the defendant, that at the time 
 of the commission of the act his mind and judgment were 
 affected by an insane delnsion, that, etc., and to such an extent 
 as to render him of unsound mind, and not responsible for his 
 acts. 
 
 In reference to this point the court instructs the jury, that 
 although they may believe, from the evidence, that the de- 
 fendant, at the time he tired the pistol, did believe and suppose, 
 that, etc., this would not exempt him from liability for his 
 acts, if the jnry believe, from the evidence, beyond {^reason- 
 able doubt, that he intentionally fired the shot which killed 
 the deceased, and that he knew and was conscious at the time, 
 that the act he was doing was wrong and punishable by the 
 laws of the land. State vs. Mewheater, 4G Iowa, 88. 
 
 § 43. When not Responsible. — If the jury believe, from the 
 evidence, that at the time when the fatal blow is alleged to 
 have been struck, the defendant was so far affected in his 
 mind and memory that he was not able to distinguish right 
 and wrong, and had not knowledge and nnderstanding of the 
 character and consequences of his act and poAver of will to 
 abstain from it, then he was not a legally responsible being, 
 and the jury should find him not guilty. State vs. Hewherter, 
 46 Iowa, 88; 1 Whar. Grim. Law, T Ed. ; Com. vs. Rogers, 7 
 Mete, 500; Freeman vs. People, 4 Denio, 10; State vs. Hu- 
 ting, 21 Mo., 464; Willis vs. People, .5 Tiffany, 715; A?ider- 
 son vs. State, 45 Ga., 11; People vs. Coffman, 24 Cal., 230. 
 
 Note. — Three distinct theories have been propounded as to the degree of 
 evidence requisite to justify a conviction on the issue of insanity. The first 
 is, that insanity, as a defense of confession and avoidance, must be proved 
 by the defendant beyond a reasonable doubt, and, unless this be done, the 
 case of the prosecution being otherwise proved, the jury are to convict. 
 The second is, that the jury are to be governed by the preponderance of the 
 evidence, and are not to require insanity to be made out beyond a reasonable 
 doubt. A third view is, that on such an issue the prosecution must prove 
 sanity beyond a reasonable doubt. Under one or the other of the last two 
 rules the following instructions will be proper. 
 
 § 44. Burden of Proof. — The court instructs the jury, that 
 m all criminal cases, before conviction can be had, the jury 
 must be satisfied, from the evidence, beyond a reasonable
 
 698 HOMICIDE. 
 
 doubt, that the defendant is guilty, in manner and form as 
 charged in tlie indictment. 
 
 § 45. Reasonable Doubt as to Sanity. — In order to sustain the 
 defense of insanity it is not necessary that the insanity of the 
 accused be established, by a preponderance of evidence; if, 
 upon the whole evidence, the jury entertain a reasonable doubt 
 as to the sanity of the accused they must accpiit him. Hopps 
 vs. People, 31 111., 385; People vs. Wilson, 49 Cal., 13; State 
 vs. BruGe, 48 la., 530; See State vs. ^^ingo, m Mo., 181. 
 
 While it is true the law presumes every man to be sane and 
 responsible for his acts until the contrary appears, from the 
 evidence, still, if there is evidence in the case tending to rebut 
 this presumption sufficient to raise a reasonable doubt upon the 
 issue of insanity, then the burden of proof is upon the people 
 to show, by the evidence, beyond a reasonable doubt, that the 
 defendant was sane, as explained in these instructions, at the 
 time the alleged offense was committed. Cone vs. McKie, 1 
 Gray, 61; Greenl. Ev., 13 Ed., § 81. 
 
 § 46. Sanity Presumed — Insanity Must be Proved. — The court 
 instructs the jury, that the law presumes every one to be sane 
 and responsible for his acts until the contrary be shown by the 
 evidence, and when insanity is set up as a defense to an 
 alleged criminal act, the burden of proof is upon the defend- 
 ant to show, by a preponderance of evidence, that he was 
 affected by insanity, or b}^ some insane delusion, as explained 
 in these instructions, at the time of the act, to such an extent 
 that he did not know what he was doing, or that he did not 
 know that what he was doing was wrong. 1 Whar. Grim. 
 Law, Y Ed., 55; State vs. Laurence^ 57 Me., 574; Com. vs. 
 Eddy, 7 Gray, 583; Eerris vs. T/te People, 35 K T., 125 ; 
 Loeffner vs. State, 10 Ohio St., 599; State vs. Hundley, 46 
 Mo., 414; State vs. Felte7\ 32 Iowa, 50; Dacey vs. The Peo^ple, 
 116 111., 555. 
 
 § 47. Impulse of Passion no Defense. — The jury are instructed 
 that one who, in possession of a sound mind, commits a ci'im- 
 inal act under the imjMilse of passion, or revenge, wliicli may 
 temporarily dethrone his reason, or for the time being control
 
 HOMICIDE. 699 
 
 his win, cannot be shielded from the consequences of the act 
 bj the plea of insanity. 
 
 § 48. Act Must be in Consequence, etc. — That insanity will 
 only excuse the commission of a criminal act when it is made 
 to appear, affirmatively, by a preponderance of the evidence, 
 that the person committing it was insane, and that the offense 
 was the direct consequence of his insanity. State vs. SticMey, 
 41 Iowa, 232. 
 
 § 49. Partial Insanity. — That the law recognizes partial as 
 well as general insanity; that a person may be insane upon one 
 or more subjects, and sane as to others; that he may be labor- 
 ing under a mental delusion u])on some particular matter, or 
 regarding a particular person, aud generally sane upon all other 
 subjects. As regards the guilt or innocence of a party 
 charged with the commission of crime it makes no difference 
 whether the act charged was produced by general insanity or 
 by mental delusion regarding some particular subject or person. 
 If the person charged is, at the time of the alleged offense, 
 laboring under a mental delusion, and the act itself is the prod, 
 uct of such delusion, and the party, at the time, did not know 
 or realize that he was doing wrong, or committing a crime, 
 then he cannot be held criminally responsible for the act. 
 
 § 60. Insanity the Efficient Cause, etc.- — The court instructs 
 the jury, that when a person is on trial on an indictment for 
 murder, and the defense of insanity is set up, and it appear.-', 
 from the evidence, that at the time of doing the act charged 
 the prisoner was not of sound mind, but was affected with 
 insanity, and such affection was the efficient cause of the act, 
 and that he would not have done it, but for the affection, 
 then he ought to be acquitted. 
 
 § 51. Insanity — Test of Insanity. — The court instructs the 
 jury, that the law presumes every man to be sane until the 
 contrary is shown, and when insanity is set up as a defense by 
 a person accused of crime, in oi-der that the defense may 
 avail, the jury ought to believe, from the evidence, that, at 
 the time of the commission of the crime, the mind of the
 
 700 HOMICIDE. 
 
 accused was so far affected with insanity as to render him 
 incapable of distinguishing between right and wrong in respect 
 to the killing ; or if he was conscious of the act he was 
 doing, and knew its consequences, that he was, in consequence 
 of his insanity, wrought up to a frenzy which rendered him 
 unable to control his actions or direct his movements. 
 
 To constitute a defense, the unsoundness of mind, or in- 
 sanity, must be of such a degree as to create an uncontrollable 
 impulse to do tlie act charged by overruling the reason and 
 judgment, and obliterating the sense of right and wrong as to 
 the particular act done, and depriving the accused of the 
 power of choosing between them. 
 
 § 52. Druukenness no Excuse for Crime. — The jury are in- 
 structed, that voluntary intoxication or drunkenness is no ex- 
 cuse for crime committed under its influence, nur is any state 
 of mind resulting from drunkenness, short of actual insanity 
 or loss of reason, any excuse for a criminal act. State vs. 
 Coleman^ 27 La. Ann., 691; Beasley vs. State, 50 Ala., 149; 
 State vs. Thomjyson, 12 Nov., 140 ; Fitzpatruh vs. People^ 
 98 111., 270 ; Cobhath vs. State, 2 Tex. App., 391. 
 
 In relation to the question of drunkenness as an excuse for 
 crime, the court instructs the jury, that if a person is sober 
 enough to intend to shoot at another, and actually does shoot 
 at and hit him, without any justification therefor, then the law 
 ]iresumes that such person is sober enough to form the specilic 
 intention to kill the one shot at, and, in such case, he is crimi- 
 nally responsible for his act. Estes vs. State, 55 Ga., 31 ; 1 
 Wharton Crim. Law, § 32. 
 
 The jury are further instructed, as a matter of law, that if 
 a person voluntarily becomes intoxicated, even total insanity, 
 if the immediate result of such intoxication, does not excuse a 
 criminal act committed while under the influence of such intox- 
 ication. 1 Wharton on Crim. Law, § 32. 
 
 The jury are further instructed, that wdiile intoxication or 
 drunkenness is no excuse for a criminal act committed under 
 its influence, still settled insanity produced by intoxication 
 excuses an act committed imder its influence and caused by it, 
 in the same way as insanity produced by any other cause. 1 
 Wharton Crim. Law, § 33.
 
 HOMICIDE. 701 
 
 If the jury believe, from the evidence, heyond a reasonable 
 donbt, that the defendant committed the act char^^ed, in 
 manner and form ascharged in the indictment, still, if the jury 
 further believe, from the evidence, that the defendant, at the 
 time, was in such a state of mental insanity (not produced by 
 the immediate effects of intoxicating drink) as not toliave been 
 conscious of what he was doinj^, or that the act itself was 
 wrong, then they should find the defendant not guilty. U. 
 8. vs. Drevj, 5 Mason IT. S. Reports, 28; Carter vs. State, 12 
 Tex., 500; Maconnehey vs. State, 5 Ohio St., 77; Bales \s,. 
 State, 3 W. Ya., 685; Fisher vs. State, 64 Ind., 435. 
 
 The jury are instructed, that under our law voluntai-y drunk- 
 enness is no excuse for the commission of a crime. Wliere, 
 without intoxication, the law would impute a criminal intent, 
 proof of drunkenness will not avail to disprove such intent. 
 Rafferty vs. The People, 66 111., 118. 
 
 The jury are instructed, that although they may believe, 
 from the evidence, that the defendant committed the criminal 
 act, in manner and form as charged in the indictment, still, if 
 the jury further believe, from the evidence, that at the time 
 he so committed the act he was so affected by what is known 
 as delirium tremens that he did not know the nature of the 
 act, nor whether it was wrong or not, and that such delirium 
 was induced by antecedent and long-continued use of intoxi- 
 cating drinks, and not as the immediate effect of intoxication, 
 then the defendant cannot be held criminally responsible for 
 such act, and the jury shoukl find the defendant not guilty. 
 Bailey vs. State, 26 Ind., 422. 
 
 Although drunkenness, in itself, is no excuse or palliation 
 for crime committed while under its influence, yet mental un- 
 soundness, superinduced by excessive drunkenness, and con- 
 tinuing after the intoxication has subsided, may be an excuse; 
 provided such mental derangement be sufficient to deprive the 
 accused of the ability to distinguish between right and wrong. 
 Beasley vs. The State, 50 Ala., 149. 
 
 Although it is the law in this state that a criminal offense 
 consists in a violation of a public law, in the commission of 
 Mdiich there must be a union or joint operation of act and in- 
 tention, or criminal negligence, yet where, without intoxica- 
 tion, the law will impute to the act a criminal intent, as in the
 
 702 HOMICIDE. 
 
 case of wanton killing without provocation, voluntary drunk- 
 enness is not available to disprove such intent. Uj>sto)ie vs. 
 People, 109 111., 177. 
 
 If you believe, from the evidence, beyond a reasonable 
 doubt, that the defendant, when voluntarily intoxicated, com- 
 mi tted the homicide charged in the indictment, under such 
 circumstances as would have constituted such an act by one 
 not intoxicated, murder, then you are instructed that such in- 
 toxication would not reduce the crime of the defendant from 
 murder to manslaughter, nor would such intoxication be any 
 excuse or defense to the act. Ibid. 
 
 The court further instructs you, that if you believe, from 
 the evidence, beyond a reasonable doubt, each of the following 
 propositions, to wit: that at about two hours before the com- 
 mission of the alleged homicide defendant was sane, and had 
 the power to abstain from drinking alcohol; that defendant 
 then knew that the drinking of alcohol by him would have 
 the effect to render him insane or crazy; that defendant, so 
 knowing the effect of alcohol upon him, and being sane, and 
 having the power to abstain from taking alcohol, did then and 
 there voluntaril}^ drink alcohol; that the alcohol so drank by 
 the defendant then and there made him insane or crazy; tliat 
 while insane or crazy from the effects of such alcohol defend- 
 ant committed the act charged in the indictment, at tlie time 
 and place, and in the manner and form, therein charged — then 
 you should find defendant guilty. Upstone vs. The People, 
 109 111., 177. 
 
 Insanity resulting from habitual intoxication, though volun- 
 tary, if it lias been long continued and has produced disease, 
 which has so far perverted or destroyed the mental faculties 
 as to render the person so affected incapable, by reason of such 
 disease, of acting from motives or of distinguishing between 
 right and -A'rong when sober, is a defent^e to a prosecution for 
 a crime committed while in that condition. Fisher vs. State, 
 G4 Ind., 435; Gillooley vs. /State, 58 Ind., 182. 
 
 The court instructs the jury, that voluntary intoxication 
 furnishes no excuse for a 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.
 
 HOMICIDE. 703 
 
 SELF-DEFENSE. 
 
 r§ 53, Jiiptifi.ahle Homicide — Self-Defenso. — The jury are in- 
 structed, tliat justifiable homicide is the killing of a human 
 being in self-defense, or in defense of habitation, property or 
 person, against one who manifestly intends or endeavors, by 
 violence or surprise, to commit a felony on either. 
 
 A bare fear of any of these offenses is not sufficient to justify 
 the killing. It must appear that the circumstances were suffi- 
 cient to excite the fears of a reasonable man, and that the party 
 killing acted under the influence of those fears. Thompson vs. 
 State, 55 Ga., 47; Wall vs. State, 51 Ind., 453; State ys. Stoc/i- 
 ton, 61 Mo., 382. 
 
 The jury are instructed, as a matter of law, that if a person 
 believes, and has reasonable cause to believe, that another has 
 sought him out for the purpose of killing him, or of doing him 
 great bodily harm, and that he is prepared therefor with deadly 
 weapons, and the latter makes demonstrations manifesting an 
 intention to commence an attack, then the per, on so threatened 
 is not required to retreat, but he has the right to stand and de- 
 fend himself, and pursue his adversary until he has secured 
 himself from danger; and if, in so doing, it is necessary, or 
 upon reasonable grounds it appears to be necessary, to kill his 
 antagonist, the killing is excusable upon the grounds of self- 
 defense. State vs. Alley, 68 Mo., 124; Forteiiberry \s. State, 
 55 Miss., 403; J^rwin vs. State, 29 Ohio St., 186. 
 
 If the jury believe, from the evidence, that the defendant 
 procured the stick with which the blow in question was struck, 
 only for the purpose of self-defense, and did not intend to use 
 it for any other purpose, and that the deceased was armed with 
 a deadly w^eapon, and was turning to attack the defendant, 
 and that the defendant was aware of these facts and knew or 
 had good ground to believe and did believe when he struck, 
 etc., that that was the only mode by which he could avoid 
 great bodily harm to himself, and that he used no more force 
 than was reasonably necessary for his own defense, then liis 
 act was not unlawful, and the jury should find the defendant 
 not guilty. Jfarts vs. State, 26 Ohio St., 162. 
 
 K § 64. Danger Need not be Real, if Reasonably Apparent. — The 
 
 court instructs the jury, that tlie law is: If a person is as-
 
 704: HOMICIDE. 
 
 sauUed in such a way as to induce in liira a reasonaL'e belief 
 that he is in actual dan»3r of losing his life, or of sulfering 
 great bodily harm, he will be justified in defea lini^ himielf, 
 although the danger be not real, but only apparent. Such a 
 jierson will not be held responsible, criminally, if he acts in 
 self-defense, from real and honest convictions as to the clmrac- 
 ter of the danger, induced by reasonable evidence, although he 
 may be mistaken as to the extent of the actual danger. Steui- 
 meyer vs. The People^ 95 111., 3S3; Roach vs. The People, 11 
 111., 25; State vs.P''/'aii?ibu}'g,4:01i\..,5o5; State ys. Pohan, 19 
 Kas., 28; Creim vs. The People, 120 III., 317. 
 
 A person need not be in actual imminent peril of his life, 
 or of great bodily harm, before he may slay his assailant; it is 
 sufficient if, in good faith, he has a reasonable belief, from the 
 facts as they appear to him at the time, that he is in such 
 imminent peril. Murray vs. Com., 79 Pa. St., 311; Roach vs. 
 The People, 71 111., 25. 
 
 That the rule of law on the subject of self-defense is this: 
 Where a man in the lawful pursuit of his business is attacked, 
 and when, from the nature of the attack, there is reasonable 
 ground to believe that there is a design to take his life or to do 
 him great bodily harm, and the party attacked does so believe, 
 then the killing of the assailant, under such circumstances, will 
 be excusable or justifiable homicide, although it should after- 
 wards appear that no injury was intended and no real danger 
 existed. 
 
 If the jury believe, from the evidence, that the defendant 
 was assaulted by the deceased in such a way as to induce in 
 the defendant a reasonable and well-grounded belief that he 
 was actually in danger of losing his life or of suffering great 
 bodily harm, then he was justified in defending himself, 
 whether the danger was real or only apparent. Actual or 
 positive danger is not indispensable to justify self-defense. 
 The law considers that men, when threatened with danger, 
 are obliged to judge from appearances and determine there- 
 from as to the actual state of things surrounding them; and, in 
 such cases, if persons act from honest convictions, induced 
 by reasonable evidence, they will not be held responsible, 
 criminally, for a mistake as to the extent of the actual danger. 
 Parker vs. State^ 55 Miss., 414; Bode vs. State, 6 Tex. App.,
 
 HOMICIDE. 705 
 
 421; Kennedy vs. Com.^ 14 Bush. (Ky.), 340; West vs. State^ 
 o9Ind., 113. 
 
 If the jury believe, from the evidence, that at the time the 
 said defendant is alleged to have shot the deceased, the circum- 
 stances surrounding the defendant wei-e such as in sound reason 
 would justify, or induce in his mind, an honest belief that he 
 was in danger of receiving, from the deceased, some great 
 bodily harm, and that the defendant, in doing what he then 
 did, was acting from the instinct of self-preservation, then he is 
 not guilty, although there may, in fact, have been no real or 
 actual danger. 
 
 In considering whether the killing was justifiable on the 
 ground that the killing was in self-defense, the jury should 
 consider all the circumstances attending the killing, the con- 
 duet of the parties at the time and immediately prior thereto, 
 and the degree of force used by the prisoner in making what 
 is claimed to be this self-defense, as bearing upon the question 
 whether the blows, if given, were actually given in self-de- 
 fense, or whether they were given in carrying out an unlaw- 
 ful purpose; and if the jury believe, from the evidence, that 
 the force used was unreasonable, in amount and character, and 
 such as a reasonable mind would have so considered, under 
 the circumstances, it is proper for the jury to consider that 
 fact in determining whether the killing was in self-defense. 
 Close vs. Coo;per, 34 Ohio St., 98. 
 
 § 55. Force may be Resisted by Force. — The jury are in- 
 structed, that under the laws of this state a person has a right 
 to resist an unlawful attack by force; and if it be necessary to 
 preserve the life of the person assailed, or to prevent great 
 bodily injury to him, the repelling force may go to the extent 
 of taking the life of the assailant. 
 
 § 56. Assailant Retiring from the Fight. — The jury are in- : 
 str.,cted, that although they may believe, from the evidence, 
 that the defendant commenced the fight in question, and made 
 the first attack upon the deceased, still, if the jury further 
 believe, from the evidence, that the defendant afterwards, and 
 before the fatal blow was struck, ceased to fight, and in good 
 faith withdrew from the conflict by retreating, or otherwise, 
 45
 
 706 HOMICIDE. 
 
 then tlie riglit of deceased to employ force against the defend- 
 ant ceased; and if the deceased did not then desist from 
 attempting to use violence towards the defendant, then the 
 defendant's right to defend himself i-evived ; and if he then 
 found himself in apparent danger of losing his life, or of sus- 
 taining great bodily injury at the hands of the deceased, he 
 had the same right to defend himself that he would have had 
 if he had not originally commenced the conflict. Terrell vs. 
 The Cominonwealth^ 13 Bush. (Ky.), 246. 
 
 To justify the taking of life, in self-defense, it must appear, 
 from the evidence, that the defendant not only really, and in 
 good faith, endeavored to decline any further struggle, and to 
 escape from his assailant before the fatal blow was given, but 
 it must also appear that the circumstances were such as to ex- 
 cite the fears of a reasonable person that the deceased intended 
 to take his life, or to inflict on him great bodi'y harm, and that 
 the defendant really acted under the influence of these fears 
 and not in a spirit of revenge. Parish vs. The State, 14 J^eb.j 
 60; State vs. Sorenson, 32 Minn., 118. 
 
 § 57. Defense of Habitation. — The law is that one assailed 
 with a deadly weapon in his own house, is not obliged to flee. 
 If such a person is violently assaulted, without being in fault, 
 he may repel force by force, and if, in the reasonable exercise 
 of his right of self-defense, and using no more force than is ap- 
 parently necessary in defense of himself and habitation, he 
 kills his assailant, the killing is justifiable homicide. Bunyan 
 vs. State, 57 Ind., SO; State vs. Ilar/nan, 78 K C, 515; State 
 vs. Mlddleham, 62 la., 150. 
 
 If the jury believe, from the evidence, that the defendant, 
 in defense of himself, inflicted uix)n the deceased the wounds 
 or stabs which caused his death, while deceased was mani- 
 festly intending and endeavoring, in a violent manner, to enter 
 the habitation of defendant, for the purpose of assaulting or 
 offering personal violence to him. or to any member of his 
 family being therein, then the killing would be justifiable, and 
 the jury should find the defendant not guilty. 
 
 If the jury believe, from the evidence, that just prior to his 
 death the deceased attempted, in a violent manner, to enter 
 the dwelling of the defendant, for the purpose of assaulting
 
 HOMICIDE. 707 
 
 liim, or offering personal violence to the defendant, being in 
 said dwelling, or any other person being or dwelling therein, 
 and that the defendant, in reasonably resisting such attempt 
 of the deceased, unintentionally and without malice, killed 
 him, then the killing was justifiable or excusable, and the jury 
 ought to acquit the defendant. 
 
 The jury, in considering whether the killing was in defense 
 of habitation, should consider all the circumstances attending 
 the killing, and the conduct of the parties at the time, and 
 immediately previous thereto, and the means and force used 
 as bearing upon the question of whether the killing was in 
 defense of habitation, in good faith, or whether it was done 
 maliciously and in a spirit of hatred or revenge. Greschia vs. 
 The People, 53 III, 295. 
 
 § 58. Attack Provoked by tlie Defendant. — The court instructs 
 the jury that a partj^ charged with an unlawful or deadly 
 assault upon another, cannot avail himself of the claim of neces- 
 sary self-defense if the necessity for such defense was brought 
 on by his own deliberate, wrongful act. Adams vs. The 
 People, 47 111., 376. 
 
 § 59. Danger Must Be Reasonably Apparent. — The court in- 
 structs the jury, that although they should find, from the evi- 
 dence, that the said A. B. and the defendants got into a quar- 
 rel at the time in question, and that the said A. B. followed 
 the defendant up in a threatening manner, still, the defendant 
 would have no right to assault the said A. B. with a deadly 
 weapon in a manner calculated to take life, or do great bodily 
 injury, unless the circumstances were such as to lead a reason- 
 able person to believe that such an assault Avas necessary, on 
 the part of the said defendant, in self-defense, to prevent re- 
 ceiving a great bodily injury himself. Judge vs. State, 58 
 Ala., 406; Jaclison vs. State, 6 Bax. (Tenn.), 452; Davis vs. 
 People, 88 111., 350. 
 
 The court instructs the jury, that if a man kills another 
 through mere cowardice, or under circumstances which are 
 not, in the opinion of the jury, sufficient to induce a reason- 
 able and well-grounded belief of danger to life, or of great 
 bodily harm, in the mind of an ordinarily courageous man,
 
 708 HOMICIDE. 
 
 the law will not justify the killing on the ground of self- 
 defense. 
 
 If the jury believe, from the evidence, that defendant had 
 no reason to believe that deceased intended to take his life, or 
 to inflict on him any great bodily harm, or to do anything 
 more than to have a fair fight, and that defendant struck the 
 fatal blow in revenge, or in a reckless spirit, the defendant is 
 not entitled to claim exemption from punishment on the 
 ground that the killing was in self-defense. 
 
 That no one has a right to kill another, even in self-defense, 
 unless such killing is apparently necessary for such defense. 
 Before a person can justify taking the life of a human being, 
 on the ground of self-defense, he must, when attacked, employ 
 all reasonable means within his power consistent with his safety 
 to avoid the danger and avert the necessity for the killing.
 
 CHAPTER LVI. 
 
 IN"STRUCTIO>^S IN THE ANARCHISTS' CASE. 
 
 The instructions given by the court in the trial of the Anarchists at 
 Chicago, and approved by the Supreme Court of Illinois. August Spies et 
 al. vs. The People, 122 111. Sup. Court Repts., 79; 12 Northeastern Re- 
 porter, 865; 10 Western Reporter, 701. 
 
 FOK THE PEOPLE. 
 
 1. Definition of murder. 
 
 2. Penalty. 
 
 3. Liberty of speech limited — Accessory defined. 
 
 4. Conspiracy to overthrow the law. 
 
 5. An act done in pursuance of a common design may be shown by cir- 
 
 cumstantial evidence. 
 
 6. Conspiracy to excite people to sedition, etc. 
 
 7. Conspiracy may be shown by circumstantial evidence. 
 
 8. Offense is committed where parties further the original plan. 
 
 9. Circumstantial evidence competent. 
 
 10. Meaning of circumstantial evidence. 
 
 11. Defendants as witnesses — Rule as to credibility. 
 
 12. Rule as to the presumption of innocence. 
 
 13. The reasonable doubt. 
 
 14. Jury the judges of the law. 
 
 15. Not at liberty to disbelieve as jurors, if they believe as men, 
 
 16. The jury may find all guilty or all not guilty. 
 
 17. The form of the verdict. 
 
 FOR THE DEFENDANTS. 
 
 1. The jury are the judges of the law and the facts. 
 
 2. They have the right to disregard the instructions of the court. 
 
 3. The law presumes the defendants innocent. 
 
 4. Reasonable doubt raised by evidence or ingenuity of counsel. 
 
 5. Verdict of not guilty means that the guilt has not been proven. 
 
 6. The jury are not to convict upon mere suspicion. 
 
 7. The burden of proof is on the prosecution. 
 
 8. The indictment is only a mere accusation. 
 
 9. Presumption of innocence not a mere form. 
 
 10. Material allegations of the indictment to be provedbeyond a reason- 
 
 able doubt. ' 
 
 11. The burden of proof on the people. 
 
 12. Reasonable doubt defined. 
 
 13. Rule of evidence different from that in civil cases. 
 
 (709)
 
 710 INSTEUCTIONS IN THE ANAKCHISTs' CASE. 
 
 14. If the evidence fails to establish guilt, jury must acquit. 
 
 15. Mere probabilities are not sufficient to convict. 
 
 16. Personal opinions not to be the basis of your verdict. 
 
 17. The jury the judges of the credibility of witnesses. 
 
 18. What is sufficient to raise a reasonable doubt. 
 
 19. What will justify the inference of guilt from circumstantial evidence. 
 
 20. Accomplices as witnesses. 
 
 21. Inducements held out to accomplices to be considered. 
 
 22. Persons induced to become witnesses by promises of immumfy. 
 
 23. The jury should act with caution upon the evidence of accomplices. 
 
 24. Omission to testify creates no presumption against defendants. 
 
 25. The jury should endeavor to reconcile the testimony of defendants' 
 
 witnesses. 
 
 26. The jury have no right to disregard the testimony of the defendants. 
 
 27. Rule as to verbal admissions of defendants. 
 
 28. Improper for the jury to regard statements of the proseouting 
 
 attorney. 
 
 29. The rule where conviction is sought upon circumstantial evidence. 
 
 30. Proof that the defendants contemplated the commission of the crime 
 
 not enough to warrant their conviction. 
 
 31. Rule where the proof shows conduct of no less turpitude than the 
 
 crime charged. 
 
 32. Allusions of the prosecuting attorney to dangerous views entertained 
 
 by the defendants. 
 
 33. The right to arm for defense and protection. 
 
 34. Right to repel an illegal attack by force. 
 
 35. Burden not on the defendants to show who threw the bomb. 
 
 36. There must be a direct connection between the advice and the con- 
 
 summation of the crime. 
 
 37. The person who threw the bomb must have been acting under the 
 
 teaching of the defendants, etc. 
 S8. Not liable for the throwing of the bomb unless it was in furtherance 
 of the common design. 
 
 INSTRUCTIONS GIVEN BY THE COURT ON ITS OWN MOTION. 
 
 1. Instructions to be in writing — Practice, 
 
 2. Jury to scrutinize the instructions. 
 
 3. General rule of law applying to the case. 
 
 INSTRUCTION ON MANSLAUGHTER GIVEN FOR DEFENDANTS. 
 1. Manslaughter defined— Jury may find defendants guilty of man- 
 slaughter. 
 
 INSTRUCTIONS FOR THE PEOPLE. 
 
 1. Definition of Murder. — The court instructs the Jury, in the 
 language of the statute, that murder is the unlawful killing of 
 a human being, in the peace of the people, with malice afore-
 
 INSTKUCTIONS IN TUB ANAKCIllSTS' CASE, 711 
 
 thought, either ex]ircssed or implied. An unlawful killing; 
 may be perpetrated by poisoning, striking, starving, drowning, 
 stabbing, shooting, or by any other of the various forms or 
 means by which human nature may be overcome, and death 
 thereby occasioned. Express malice is that deliberate inten- 
 tion, unlawfully to take away the life of a fellow creature, 
 which is manifested by external circumstances, capable of 
 proof. Malice shall be implied when no considerable provoca- 
 tion appears, or where all the circumstances of the killing 
 show an abandoned and malignant heart. 
 
 2. Penalty. — The court instructs the jury, that whoever 
 is guilty of murder shall suffer the penalty of death, or 
 imprisonment in the penitentiary for his natural life, or for a 
 term not less than fourteen years. If the accused, or any of 
 them, are found guilty by the jury, the jury shall lix the 
 punishment by their verdict. 
 
 3. Liberty of Speech Limited — Accessory Befinefl. — The court 
 
 instructs the jury that, while it is provided by the Constitution 
 of the State of Illinois that "ever}'- person may freely speak, 
 write and publish on all subjects," he is, by the Constitution, 
 held responsible under the laws for the abuse of the liberty so 
 given. Freedom of speech is limited by the laws of the land 
 to the extent, among other limitations, that no man is allowed 
 to advise the committing of any crime against the person or 
 property of another. And so the statute provided: "An 
 accessory is he who stands by and aids, abets or assists, or who, 
 not being present aiding, abetting or assisting, hath advised, 
 encouraged, aided or abetted the perpetration of the crime. 
 He who thus aids, abets, assists, advises or encourages, shall 
 be considered as principal and punished accordingly." 
 
 4. Conspiracy to Overthrow the Law. — The court further 
 instructs the jury, as a matter of law, that if they believe from 
 the evidence in this case, beyond a reasonable doubt, that the 
 defendants, or any of them, conspired and agreed together, or 
 with others, to overthrow the law by force, or to unlawfully 
 resist the officers of the law, and if they further believe, from 
 the evidence, beyond a reasonable doubt, that in pursuance of
 
 712 INSTKUCTIOKS IK THE ANAKCHISTS' CASE. 
 
 such conspiracy, and in fui'therance of the common object, a 
 bomb was thrown by a member of such cons]«racy at tlie 
 time, and that Matthias J. Degan was killed, then, such of tlie 
 defendants, as the jnry believe, from the evidence, beyond 
 a reasonable doubt, to have been parties to such conspiracy, 
 are guilty of murder, whether present at the killing or not, 
 and whether the identity of the person throwing the bomb be 
 established or not. 
 
 5. An Act Done in Pursnance of a Common Design Maybe SIiomti 
 by Circumstantial Evidence. — The court instructs the jur}' that 
 a conspiracy may be estaljlished by circumstantial evidence, 
 tlie same as any other fact, and that such evidence is legal and 
 competent for that purpose. So, as to whether an act com- 
 mitted was done by a member of a conspiracy may be estab- 
 lished by circumstantial evidence, whether the identity of the 
 individual who committed the act be established or not, and, 
 also, whether an act done was in pursuance of the common 
 design, may be ascertained by the same class of evidence; and 
 if the jury believe, from the evidence in the case, beyond a 
 reasonable doubt, that the defendants, or any of them, con- 
 spired and agreed together, or with others, to overthrow 
 the law by force, or destroy the legal authorities of this city, 
 county or state, by force, and that in furtherance of this com- 
 mon design, and by a member of such conspiracy, Matthias J. 
 Degan was killed, then these defendants, if any, whom the 
 jury believe, from the evidence, beyond a reasonable doubt, 
 were parties to such conspiracy, are guilty of the murder of 
 Matthias J. Degan, whether the identity of the individual 
 doins: the killino; be established or not, or whether such de- 
 fendants were present at the time of the killing or not. 
 
 6. Conspiracy to Excite People to Sedition, etc. — If these de- 
 fendants, or any two or more of them, conspired together, 
 with or not with any other person or persons, to excite the 
 people, or classes of the people of this city to sedition, tumult 
 and riot, to use deadly weapons against and take the lives of 
 other persons, as a means to carry their designs and purposes 
 into effect, and in pursuance of such conspiracy, and in further- 
 ance of its objects, any of the persons so conspiring publicly,
 
 mSTKUCTIONS IN THE ANAECUISTs' CASE. T13 
 
 by print or spooeh, advised or enconrnged the commission of 
 murder without designating time, place or occasion at which 
 it should be done, and in pursuance of and induced by such 
 advice or encouragement murder was committed, then all of 
 such conspirators are guilty of such murder, whether the per- 
 sons who perpetrated such murder can bo identified or not. If 
 such murder was committed in pursnance of such advice or 
 encouragement, and was induced thereby, it docs not matter 
 what change, if any, in the order or condition of society, or 
 what, if any, advantage to themselves or others, the conspir- 
 ators proposed as a result of their conspiracy. Nor does it 
 matter whether such advice or encouragement had been fre- 
 quent and long continued or not, except in determining whether 
 the perpetrator was or was not acting in pnrsuance of such 
 advice and encouragement, or was or was not induced thereby 
 to commit the murder. If there was snch conspiracy, as in 
 this instruction is recited, and such advice or encouragement 
 was given, and murder committed in pursuance of or induced 
 thereby, then all of snch conspirators are guilty of murder. 
 Nor does it matter, if there was such a conspiracy, how im- 
 practicable or impossible of success the ends and aims were, 
 nor how foolish or ill-arranged were the plans for its execu- 
 tion, except as bearing on the question whether there was or 
 was not such conspiracy. 
 
 7. Conspiracy may be Sllo^^^l by CnTumstantial Evidence. — The 
 
 court instructs tlie jury, that a conspiracy may be established 
 by circumstantial evidence the same as any other fact, and that 
 such evidence is legal and competent for that purpose. So, 
 as to whether an act committed was done by a member of a 
 conspiracy, may be established by circumstantial evidence, 
 whether the identity of the individual who committed the 
 act be established or not, and also whether an act done was in 
 pursuance of the common design may be ascertained by the 
 same class of evidence; and if the jury believe, from the evi- 
 dence in this case, beyond a reasonable doubt, that the defend- 
 ants, or any of them, conspired and agreed together, or with 
 others, to overthrow the law by force or destroy the legal 
 authorities of this city, county or state by force, and ihat in 
 furtherance of the common design, and by a member of such
 
 714 INSTKUCTIONS IN THE ANAKCHISTS' CASE. 
 
 conspiracy, Matthias J. Degan was killed, then these defend- 
 ants, if any, whom the jury believe, from the evidence, beyond 
 a reasonable doubt, were parties to such conspiracy, are guilty 
 of the murder of Matthias J. Degan, whether the identity of 
 the individual doing the killing be established or not, or 
 whether such defendants were present at the time of the kill- 
 ing or not. 
 
 8. Offense Committed where Parties Further the Original Plan. — 
 
 The jur}'- are instructed, as a matter of law, that all who take 
 part in the conspiracy after it is formed, and while it is in 
 execution, and all who, with knowledge of the facts, concur in 
 the plan originally formed, and aid in executing them, are 
 fellow conspirators. Their concurrence, without proof o-f any 
 agreement to concur, is conclusive against them. They commit 
 the offense when they become parties to the transaction or 
 further the original plan with knowledge of the conspiracy. 
 
 9. Circnmstantial Evidence Competent. — The court instructs 
 the jury, as a matter of law, that circumstantial evidence is 
 just as legal and just as effective as any other evidence, pro- 
 vided the circumstances are of such a character and force as to 
 satisfy the minds of the jury of the defendants' guilt beyond 
 a reasonable doubt. 
 
 10. Meaning of Circumstantial Evidence. — The court instructs 
 the jury, that what is meant by circumstantival evidence in 
 criminal cases, is tlie proof of such facts and circumstances 
 connected with or suri'ounding the commission of the crime 
 charged, as tend to show the guilt or innocence of the party 
 charged, and if these facts and circumstances are sufficient to 
 satisf}' the jury of the guilt of the defendants, beyond a rea- 
 sonable doubt, then such evidence is sufficient to authorize the 
 jury to find the defendants guilty. 
 
 The law exacts the conviction wherever there ig legal evi- 
 dence to show the defendants' guilt beyond a reasonable doubt, 
 and circumstantial evidence is legal evidence. 
 
 § 11. Defendants as Witnesses — Rule as to Credibility. — The 
 court instructs the jury, as a matter of law, that when the de-
 
 INSTRUCTIONS IN THE ANARCHISTS' CASE. 715 
 
 fendants, August Spies, Micliael Schwab, Albert R. Parsons 
 and Samuel Fieldcn, testified as witnesses in this case, each 
 became as any other witness, and the credibility of each is to 
 be tested by and subjected to the same tests as are legally ap- 
 plied to any other witness; and in determining the degree of 
 credibility that shall be accorded to the testimony of any one 
 of said above named defendants, the jury have a right to take 
 into consideration the fact that he is interested intlie result of 
 the prosecution, as well as his demeanor and conduct upon the 
 witness stand and during the trial, and the jury are also to take 
 into consideration the fact, if such is the fact, that lie has been 
 contradicted by other witnesses. And the court further in- 
 structs the jury, that if, after considering all the evidence in 
 this case, they find that any one of said defendants, August 
 Spies, Michael Schwab, Albert R. Parsons and Samuel Fielden, 
 has willfully and corruptly testified falsely to any fact materifil 
 to the issue in this case, they have the right to entirely disre- 
 gard his testimony, excepting so far as his testimony is cor- 
 roborated by other credible evidence. 
 
 12. The Rule as to the Presumption of Innocence. — The rule 
 which clothes every person accused of crime with the pre- 
 sumption of innocence, and imjjoses upon the state the burden 
 of establishing his guilt beyond a reasonable doubt is not in- 
 tended to aid any one who is in fact guilty of crime to escape, 
 but is a humane provision of law, intended, so far as human 
 agencies can, to guard against the danger of any innocent per- 
 sons being unjustly punished. 
 
 13. The Reasonable Doubt. — The court instructs the jury, 
 as a matter of law, that, in considering the case, the jury are 
 not to go beyond the evidence to hunt up doubts, nor must 
 they entertain such doubts as are merely chimerical or con- 
 jectural. A doubt, to justify an acquittal, 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 prudent man to hesitate 
 and pause, it is insufficient to authorize a verdict of not guilty; 
 if, after considering all the evidence, you can say you have an
 
 716 INSTEUCTIONS IN THE AN-ARCIIISTS' CASE. 
 
 abidinf^ conviction of the truth of the charge, you are satis- 
 fied beyond a reasonable doubt. 
 
 14. Jury Judges of the Law. — The court instructs the jury, 
 that they are the judges of the law as well as the facts in this 
 case, and if they can say upon their oaths, that they know the 
 law better than the court itself, they have the right to do so. 
 But before assuming so solemn a responsibility they should 
 be assured that they are not acting from caprice or prejudice ; 
 that they are not controlled by their will or their wishes; but 
 from a deep and confident conviction that the court is wrong, 
 and that they are right. Before saying this u pon their oaths, it is 
 their duty to reflect whether from their study and experience 
 they are better qualified to judge of the law than the court. 
 If, under all these circumstances, they are ]H-epared to say 
 that the court is wrong in its exposition of the law, the stat- 
 ute has given them that right. 
 
 15. Not at Liberty to Disbelieve as Jurors, if they Believe as 
 
 Men. — The court further instructs the jury, as a matter of law, 
 that the doubt which the juror is allowed to retain on his own 
 mind, and under the influence of which he should frame a ver- 
 dict of not guilty, must always be a reasonable one. A doubt 
 produced by undue sensibility in the mind of any juror, in 
 view of the consequences of his verd'ct, is not a reasonable 
 doubt, and a juror is not allowed to create sources or materials 
 of doubt by resorting to trivial and fanciful suppositions and 
 remote conjectures as to possible state of facts, differing from 
 that established by the evidence; you are not at liberty to dis- 
 believe as jurors, if you believe as men; your oath imposes on 
 you no obligation to doubt where no doubt would exist if no 
 oath had been administered. 
 
 16. The Jury May find all Guilty or all not Gnilty. — In this 
 case the jury may, as in their judgment the evidence warrants, 
 find any or all of the defendants guilty or not, or all of them 
 not guilty; and if in their judgment the evidence warrants, 
 they may, in case they find the defendants or any of them 
 guilty, fix the same penalty for all of the defendants found 
 guilty, or different penalties for the different defendants found
 
 INSTRUCTIONS IN THE ANARCUISTS' CASE. 717 
 
 guilty. In caso they find the defendants, or any of them, 
 guilty of mui'der, they should fix the penalty either at death 
 or at imprisonment in tlie penitentiary for life, or at imprison- 
 ment in the penitentiary for a term of any number of years 
 not less than fourteen. 
 
 17. The Form of the Verdict. — If all the defendants are 
 found guilty, the form of your verdict will be: 
 
 We, the jury, find the defendants guilty of murder, in man- 
 ner and form as charged in the indictment, and fix the pen- 
 alty . 
 
 If all are found not guilty, the form of your verdict will be: 
 
 We find the defendants not guilty. 
 
 If part of the defendants are found guilty and part not 
 ■guilty, the form of your verdict will be: 
 
 We, the jury, find the defendant or defendants (naming 
 liim or them) not guilty; and we find the defendant or de- 
 fendants (naming him or them) guilty of murder, in manner 
 and form as charged in the indictment, and we fix the pan- 
 alty . 
 
 INSTRUCTIONS FOR THE DEFENDANTS. 
 
 1. The Jury are the Jmlj^es of the Law and Fact. — The jury 
 are instructed for the defense as follows : Thejury in a crim- 
 inal case are, by the statute of Illinois, made judges of the law 
 and evidence; and under these statutes it is the duty of the 
 jury, after hearing the arguments of the counsel and the in- 
 structions of the court, to act upon the law and facts, accord- 
 ing to their best judgment of such law and such facts. 
 
 2. The Jury Have a Right to Disregard the Instructions of the 
 Court. — The jury are the judges of the law and the facts, and 
 you have a right to disregard the instructions of the court, 
 provided, you, upon your oath, can say that you believe you 
 know the law better than the court. 
 
 3. The Law Presumes the Defendants Innocent. — The jury 
 are instructed that the law presumes the defendants innocent 
 in this case, and not guilty as charged in the indictment, and
 
 718 INSTRUCTIONS IN THE ANAECHISTS' CASE. 
 
 the presiim])tion should continue and prevail in the minds of 
 the jury until they are satisfied by the evidanco, beyond all 
 reasonable doubt, of the guilt of the defendants; and acting 
 on this presumption, the jury should acquit the defendants, 
 unless constrained to find them guilty by the evidence convin- 
 cing them of such guilt, beyond all reasonable doubt. 
 
 4. Reasonable Doubt Raised by Evidence or Ingenuity of Counsel. 
 
 — The court instructs the jury, that upon the trial of a criminal 
 cause, if a reasonable doubt of any facts necessary to convict 
 the accused is raised in the minds of the jury, by tlie evidence 
 itself, or by the ingenuity of counsel, upon any hypothesis 
 reasonably consistent with the evidence, that doubt is decisive 
 in favor of the prisoner's acquittal. 
 
 5. A Verdict of Not Guilty Means that the Gnilt has not been 
 Proven. — A verdict of not guilty means no more than this: 
 That the guilt of the accused has not been demonstrated in the 
 precise, specific, and narrow forms prescribed by law. The 
 evidence, to convict the accused, must not merely be beyond 
 all reasonable doubt consistent with the hypothesis of his or 
 their guilt, but it must also be beyond all reasonable doubt 
 inconsistent with any hypothesis of innocence that can be 
 reasonably drawn therefrom. 
 
 6. The Jury are not to Convict upon Mere Suspicion. — The court 
 
 instructs the jury that, under the law, no jury should convict a 
 citizen or citizens of crime upon mere suspicion, however 
 strong, or simply because there is a ]u-eponderance of all the 
 evidence in the case against him or them, or simply because 
 there is a strong reason to susj^ect that he or they is or are 
 guilty; but before the jury can lawfully convict, they must 
 be convinced of the defendants' guilt beyond ail reasonable 
 doubt. 
 
 7. Burden of Proof is on the Prosecution. — The court further 
 instructs the jury that in this case the law does not require of 
 the defendants that they prove themselves innocent, but the 
 law im))Oses ujjon the prosecution to prove that the defendants 
 are guilty, in manner and form as charged in the indictment.
 
 INSTKUCTIONS IN THE ANAKCIIISTS' CASE. 719 
 
 to the satisfaction of the jniy, beyond all reasonable doubt: 
 and unless tliej have done so the jury should liud them not 
 guilty, 
 
 8. The Indictment only a Mere Acensation. — The jury are 
 furtlier instructed, that the indictment in this case is of itself 
 a mere accusation or charge against the defendants, and is not, 
 of itself, any evidence of the defendants' guilt; and no juror 
 in this case should permit himself to be, to any extent, influ- 
 enced against the defendants, because or on account of the 
 indictment in this case. 
 
 9. Presumption of Innocence not a Mere Form. — The jury are 
 instructed furtlier, that the presumption of innocence is not a 
 mere form, to be. disregarded by the jury at pleasure, but it is 
 an essential, substantial part of the law of the land, and bind- 
 ing on the jury in this case ; and it is the duty of the jury to 
 give the defendants in this case the full benefit of this pre- 
 sumption, and to acquit tlie defendants, unless they feel com- 
 pelled to find them guilty as charged, by the law of the land 
 and the evidence in the case, convincing: them of their ffuilt 
 as charged, beyond all reasonable doubt. 
 
 10. Every Material Allegation of the Indictment to be Proved 
 Beyond a Reasonable Doubt. — The jury are instructed, by the 
 court, that in this case the burden of proof rests upon tlie 
 prosecution to make out and prove to the satisfaction of the 
 jury, beyond all reasonable doubt, every material allegation in 
 the indictment, and unless that has been done the jury should 
 find the defendants not guilty. 
 
 11. Burden of Proof on the Peoi>le, etc. — Tlie court fur- 
 ther instructs the jury, that in this case, to justify a conviction 
 of any one of the defendants, the burden is on the prosecution 
 to prove, by creditable evidence, to the satisfaction of the 
 jury, beyond all reasonable doubt, that such defendant is guilty, 
 as charged in the indictment, of the murder of Matthias J. 
 Degan; and if the evidence fails thus to satisfy the jury of 
 the guilt of any one or more, or all of the defendants, it is 
 the duty of the jury to acquit each and every of the defend-
 
 720 IJSrSTKUCTIOKS IN THE AiS'ARCHISTs' CASE. 
 
 ants, as to whom tlieie is such faihire of proof. The jury 
 are not at liberty to adopt unreasonable theories or supposi- 
 tions in considering the evidence, in order to justify a vei'dict 
 of conviction, as to any defendant; but if any reasonable view 
 of the evidence is or can be adopted, which admits of a rea- 
 sonable conclusion, that the defendants, or any of them, are, or 
 is, not guilty, as charged in the indictment, or which raises 
 and sustains a reasonable doubt of said guilt, it is the duty of 
 the jury to adopt such view of the evidence and acquit those 
 to whom that conclusion applies. 
 
 12. The Reasonable Doubt, Defined. — A reasonable doubt is 
 that state of the mind, which, after a full comparison and con- 
 sideration of all the evidence, both for the state and defense, 
 leaves the minds of the jury in that condition that they can- 
 not say that they feel an abiding faith amounting to a moral 
 certaintj^, from the evidence in the case, that the defendants 
 are guilty of the charge as laid in the indictment. If you have 
 such doubt — if 3"our conviction of the defendants' guilt, as laid 
 in the indictment, does not amount to a moral certainty from 
 the evidence in the case — then the court instructs you that you 
 must acquit the defendants. 
 
 13. Rule of Evidence Different from Civil Cases.— The court 
 further instructs the jury that this is not a civil case, but it is 
 a criminal prosecution; and that the rules, as to the amount of 
 evidence in this case, are different from those in a civil case 
 and a mere preponderance of evidence would not warrant the 
 jury in finding the defendants guilty, but before the jury can 
 convict ihe defendants they must be satisfied of their guilt, 
 beyond all reasonable doubt, and unless so satisfied, the jury 
 should find the defendants not guilty. 
 
 14. If the Evidence Fails to Establish Guilt, etc., Jury 3Iust 
 Acquit, — The court instructs the jury, that in criminal cases, 
 even where the evidence is so strong that it demonstrates the 
 probability of the guilt of the parties accused, still if it fails to 
 establish, beyond a reasonable doubt, the guilt of the defend- 
 ants, or of one or more of them, in manner and form as charged 
 in the indictment, then it is the duty of the jui-y to acquit any
 
 INSTKUCTIONS IN THE ANAECHISTs' CASE. 721 
 
 defendant or defendants as to whose guilt they entertain such 
 reasonable doubt. 
 
 15. Mere Probabilities not Sufficient to Warrant a Conviction. — 
 
 Tlie jury are instructed, that mere probabilities are not sutH- 
 cient to warrant a conviction; nor is it sufficient that the 
 greater weight or preponderance of the evidence supports the 
 allegations of the indictment; nor is it sufficient that upon 
 the doctrine of chances it is more probable that the defend- 
 ants are guilty. To warrant a conviction of the defendants, 
 or any of them, they must be proved to be guilty so clearly 
 and conclusively that there is no reasonable theory upon which 
 they can be innocent, when all the evidence in the case is con- 
 sidered together. 
 
 16. Personal Opinions not to be the Basis of Your Verdict. — 
 
 Your personal opinions as to facts not proven cannot properly 
 be considered as the basis of your verdict. You may believe, 
 as men, that certain facts exist, but as jurors, you can only act 
 upon evidence introduced upon the trial, and from that, and 
 that alone, you must form your verdict, unaided, unassisted 
 and uninfluenced by any opinions or presumptions not formed 
 npon the testimony. 
 
 17. The Jury the Judges of the Credibility of Witnesses. — The 
 
 court instruct the jury, that they are the sole judges of the 
 facts in this case, and of the credit to be given to the respect- 
 ive witnesses who have testified; and in passing upon the 
 credibility of such witnesses they have a right to take into 
 consideration their prejudices, motives or feelings of revenge, 
 if any such have been proven or shown by the evidence in 
 this case; and if the jury believe, from the evidence, that any 
 witness or witnesses have knowingly and willfully testified 
 falsely as to any material fact or point in this case, the jury 
 are at liberty, unless corroborated by other credible evidence, 
 to disregard the testimony of such witness or witnesses in 
 toto. 
 
 18. TVliat is SuiTicient to Raise a Reasonable Doubt. — The 
 jury are instructed that if there is any one single fact proved 
 
 46
 
 722 INSTKUCTIONS IN THE anarchists' case. 
 
 to the satisfaction of the jury, by a preponderance of evidence, 
 which is inconsistent with the guilt of the defendants, or any 
 of them, this is sufficient to raise a reasonable doubt, and tlie 
 jury should acquit such of the defendants as to whom such 
 fact has thus been proved. 
 
 19. Wliat will Ju^itify Inference of Guilt from Circnmstantial 
 Evidence. — That in order to justify an inference of legal guilt 
 from circumstantial evidence, the existence of the inculpatory 
 facts must be absolutely incompatible with the innocence of the 
 accused upon any rational theory, and incapable of explana- 
 tion upon any other reasonable hypothesis than that of their 
 guilt. 
 
 20. Accomplices as Witnesses. — The jury are instructed, that 
 the witnesses, Gottfried, "Waller and Wilhelm Seliger, are 
 what is known, in law, as accomplices, and that, while it is a 
 rule of law that a person accused of crime may be convicted 
 upon the uncorroborated testimony of an accomplice, still, a 
 jury should always act upon such testimony with great care 
 and caution, and subject it to careful examination in the light 
 of all the other evidence in the case, and the jury ought not 
 to convict upon such testimony alone, unless, after a careful 
 examination of such testimony, they are satisfied, beyond any 
 reasonable doubt, of its truth, and that they can safely rely 
 upon it. 
 
 21. Inducements Held out to Accomplices to be Considered. — 
 
 The jury are instructed that if they believe from the evi- 
 ence that the witnesses, Gottfried, Waller and Wilhelm Seliger, 
 were induced to become witnesses and testify in this case by 
 any promise of immunity from punishment, or by any hope 
 held out to them, or either of them, by any one, that it would 
 go easier with them in case they disclosed who their confed- 
 erates were, or in case they imj^licated some one else in the 
 crime, then the jury should take such facts in consideration in 
 determining the weight which ought to be given to their tes- 
 timony thus obtained and given under the influence of such 
 promise or hope.
 
 INSTEUCTIOXS IN THE ANARCHISTS' CASE, 723 
 
 22. Persons Indiicod to Become Witnesses by Promises of Im- 
 numity. — If the jury believe, from tlie evidence, that aiij of 
 tlie witnesses for the prosecution were induced or influenced 
 to become witnesses and testify in this case by any promise or 
 intimation of immunity from pnnisliment, or by any ho) e 
 held out to them by any one that it would be better for them 
 or go easier with them in case of their testifying in the case, 
 then the jury should take such facts into consideration in de- 
 termifiing the weight which ought to be given to such testi- 
 mony thus obtained, and given under the influence of such 
 promise or hope. Such testimony should only be received by 
 the jury with great caution and scrutinized with great care. 
 
 23. The Jnry Should Act with Caution npon the Evidence of 
 Accomplices. — The court instructs the jury that, while it is the 
 law of this state, that a person accused of crime may be con- 
 victed upon the uncorroborated testimony of an accomplice or 
 accomplices, still, a jury should always act upon such testimony, 
 if at all, with great caution and care, and subject it to critical 
 examination, in the light of all the other evidence in the case; 
 and the jury ought not to convict upon such testimony alone, 
 unless, after a careful examination of such testimony, they are 
 satisfied, beyond any reasonable doubt, of its truth, and that 
 they can safely rely upon it. 
 
 24r. Defendant's Omission to Testify Creates no Presumption 
 against Him. — The court instructs the jury, that while the 
 statute of this state provides that a person charged with crime 
 may testify in his own hehalf, he is under no obligation to do 
 so, and the statute expressly declares that his neglect to testify 
 shall not create any presumption against him. 
 
 25. The Jnry Should Endeavor to Reconcile the Testimony of 
 Defendants' Witnesses. — The jury are instructed, that in passing 
 upon the testimony of defendants' witnesses, in this case, they 
 should endeavor to reconcile their testimony with the belief 
 that all the witnesses have endeavored to tell the truth, if 
 they can reasonably do so under the evidence, and if reason- 
 ably possible, attribute any diflerences or contradiction? in 
 their testimony, if any exist, to mistake or misrecollection, 
 rather than to a willful intention to swear falsely.
 
 724 INSTEUCTIONS IN THE ANARCHISTS' CASE. 
 
 26. The Jury Hare no Ri;5ht to Disregard the Testimony of the 
 Defendants. — The jury have np right to disregard the testimony 
 of the defendants on the ground alone that they are defend- 
 ants and stand charged witli the commission of a crime. The 
 law presumes the defendants to be innocent until tliej are 
 proved guilty, and the law allows them to testify in their own 
 behalf, and the jury should fairly and impartially consider 
 their testimon3", together with all the other evidence in the 
 case. 
 
 27. Rule as to Verbal Admissions of Defendants. — The court 
 further instructs the jury, that when tlie verbal admission of a 
 person charged with crime is offered in evidence, the whole of 
 the admission must be taken together, as well that part which 
 makes for the accused as that which may make against him, and 
 if part of the statement, which is in favor of the defendants, is 
 not disproved and is not apparently improbable or untrue, 
 when considered with all the other evidence in the case, then 
 such part of the statement is entitled to as much consideration, 
 from the jury, as any other part of the statement. 
 
 28. Improper for the Jury to Regard Statements of the Prosecnt- 
 ing Attorney. — The jury are instructed, that it would be highly 
 improper and wrong for them to regard any statements of the 
 prosecuting attorneys that are not based on the evidence in 
 the case, if any such have been made, as entitled to any weight 
 whatever in this case. 
 
 29. The Rule Wliere Conviction is Sought npon Circumstantial 
 Evidence. — The jury are instructed, as a matter (^i law. that 
 where a conviction for a criminal offense is sought upon cir- 
 cumstantial evidence alone, the ])eople must not only show by 
 a preponderance of evidence, that the alleged facts and cir- 
 cumstances are true, but they must be such facts and circum- 
 stances as are absolutely incompatible, upon any reasonable 
 hypothesis, with the innocence of the accused, and incapable 
 of explanation, upon any reasonable hypothesis other than that 
 of the guilt of the accused. And in this case, if all the facts 
 and circumstances relied on by the people to secure a convic- 
 tion can be reasonably accounted for upon any theory consist-
 
 INSTKUCTIONS IN THE ANAKCUISTs' CASE. 725 
 
 cnt with the innocence of the defendants, or any of them, 
 then the jury shuuld acquit tlie defendants, or such of thcni 
 as to whom the facts proven can fhus be accounted for. 
 
 30. Proof that the Defendants Contemplated the Commission of 
 the Crime, not Enough to Warrant Tlieir Conviction. — It is not enough 
 to warrant the conviction of a person accused of crime, that he 
 contemplated the commission of such crime. The actual com- 
 mission of such crime by the accused, or the proof of such 
 facts as will satisfy the jury, beyond all reasonable doubt, of 
 the guilt of the accused, must be presented, and if any reason- 
 able hypothesis exists that such crime may have been committed 
 by another in no way connected with the defendants, the ac- 
 cused should be acquitted. 
 
 31. The Rule Where the Evidence Shows Conduct of no Less 
 Turpitude than the Crime Charged. — The jury are further instruct- 
 ed, that if the evidence leaves a reasonable doubt in the mind of 
 the jury, whether the defendants are guilty of the crime with 
 which they are charged in the indictment, then the jury should 
 find the defendants not guilty; although the evidence may 
 show conduct of no less turpitude than the crime charged, 
 that is not enough to authorize a conviction in this trial. 
 
 32. Allusions and References of the Prosecuting Attorney to 
 Dangerous Views Entertained by Defendants. — The court further 
 instructs the jury, that the allusions and references of the 
 prosecuting attorneys to the su])]xjsed dangerous character of 
 any views entertained, or princij)le3 contended for, by the 
 defendants, or any of them, should, in no way, influence or 
 prejudice your minds against the defendants in this case; your 
 duty is discharged when you have determined their guilt or 
 innocence of the charge contained in this indictmentj and there 
 is no other question involved in this case. I 
 
 33. The Right to Arm for Defense and Protection. — Individuals 
 and communities have the legal right to arm themselves for 
 the defense and protection of their persons and property, and 
 a proposition by any person publicly proclaimed to arm for 
 such protection and defense is not an ofliense against the laws 
 of this state.
 
 72G INSTRUCTIONS IN THE ANAECHiSTs' CASE. 
 
 34. Right to Repel an Illegal Attack by Force. — The jury are 
 instructed, that if the defendants, or some of them, agreed 
 together or with others, that'in the event of the workingmen 
 or strikers being attacked, they (defendants) would assist the 
 strikers to resist such attack, before you can find that such 
 agreement constituted a consiuracy, jou must be satisfied, be- 
 yond all reasonable doubt, that such contemplated or antici- 
 pated assault or attack to be resisted, as aforesaid, was justified 
 and lawful, and that such contemiilated resistance was illegal. 
 And if, on the other hand, such contemplated or anticipated 
 assault or attack was unjustified and illegal, and such coutem- 
 plated resistance simply the opposing of force, wrongfully and 
 illegally exercised, by force sufticient to repel the said assault, 
 then the facts assumed in this instruction do not constitute 
 conspiracy. 
 
 35. Burden Not on the Defendants to ShoAV Who Threw the 
 Bomb. — The defendants do not assume the burden of yjroof in 
 this case at any stage of the proceedings, and the burden is 
 not cast upon them to prove that the person who threw the 
 bomb was not acting under their advice, teaching or procure- 
 ment; therefore, unless the prosecution has established in the 
 minds of the jury, beyond all reasonable doubt, that some of 
 the defendants threw the said bomb, or that the person who 
 did so throw the same was acting under the advice and pro- 
 curement of the defendants, or some of them, the defendants, 
 and all of them, should be acquitted. Such advice ma}' not 
 necessarily be as to the bomb, but generally, so as to include it. 
 
 36. There Must Be a Direct Connection between the Advice anl 
 the Consummation of the Crime. — It will not do to guess away 
 the lives or liberty of the people, nor is it proper that the 
 jury should guess that the person who threw the bomb which 
 killed Degan was instigated to do the act by the procurement 
 of the defendants, or any of them; that fact must be estab- 
 lished beyond all reasonable doubt in the minds of the jury, 
 and it will not do to say that because the defendants may have 
 advised violence, therefore, when violence came, it was the 
 result of such advice. There must be a direct connection 
 established, by credible testimony, between the advice and the
 
 INSTRUCTIONS IN THE ANAKCillSTs' CASE. 727 
 
 consummation of the crime, to the satisfaction of the jury be- 
 yond a reasonable doubt. 
 
 37. The Person Who Threw the Bomb Must Have Been Acting 
 under the Teachinu; of the Defendants, etc. — Although the defend- 
 ants, or some of them, may have spoken, written or published 
 their views to the effect that a social revolution should be 
 brought about by force, and that the ofhcers of the law 
 should be resisted, and to this end dynamite should be used 
 to the extent of taking human life; that ])ersons should arm 
 to resist the law, and that the law should be throttled and 
 killed, and although such language might cause persons to 
 desire to carry out the advice given, as aforesaid, and do the 
 act wliich caused officer Degan's death, yet the bomb might 
 have been thrown and Degan killed by some one unfamiliar 
 with, and unprompted by the teachings of the defendants, or 
 any of them. 
 
 Therefore the jury must be satisfied, beyond all reasonable 
 doubt, that the person throwing said bomb was acting as the 
 result of the teaching or encouragement of the defnndants, or 
 some of them, before the defendants can be held liable there- 
 for, and this you must find from the evidence. 
 
 38. Not Liable for the Throwing of the Bomb Unless it was in 
 Furtherance of the Common Design. — If you find at a meet- 
 ing, held May 3d, at 54 W. Lake street, at which some 
 of the defendants were present, it was agreed, that in the 
 event- of a collision between the police, the militia or fire- 
 men and the striking laborers, certain armed organizations 
 of which some of the defendants were members, sliould 
 meet at certain places in Chicago, that a committee should 
 attend public places and meetings where an attack by the 
 police and others might be expected, and in the event of 
 such attack, report the same to said organization to the end 
 that such attack might be resisted and the police stations of 
 the city destroyed, still, if the evidence does not prove, beyond 
 all reasonable doubt, that the throwing of the bomb which 
 killed Matthias J. Degan, was the result of any act in further- 
 ance of the common design herein stated, and if it may have 
 been the unauthorized and individual act of some person act-
 
 728 INSTKUCTIONS IN THE ANAKCIIISTs' CASE. 
 
 ing upon his own responsibility and volition, then none of 
 the defendants can be held responsible therefor on account of 
 said West Lake street meeting. 
 
 IKSTEUCTIONS GIVEN BY THE COUET ON ITS OWN MOTION. 
 
 1. Instructions to be in Writing — Practice. — The statute re- 
 quires that instructions by the court to the jury shall be in 
 writing and only relating to the law. The practice under the 
 statute is, that the counsel should prej;are, on each side, a set 
 of instructions and present them to the court, and, if approved, 
 to be read by the court as the law of the case. 
 
 2. Jury to Scrutinize all Instructions. — It may have been, by 
 reason of the great number presented, and the hui'ry and 
 confusion in the midst of the trial, with a large audience to 
 keep in order, that there should be some apjiareut inconsist- 
 ency, but if they are carefully scrutinized such inconsistency 
 will probably disappear; in any event, however, the gist or 
 pith of all is, that if advice and encouragement to murder was 
 given, and if murder was done in pursuance of and immedi- 
 ately induced by such advice and encouragement, then those 
 who gave such advice and encouragement are guilty of murder. 
 
 3. General Rule of Law Apiilying to the Case. — If the evidence, 
 either direct or circumstantial, or both, proves the innocence 
 of one or more of the defendants so fully that there is no rea- 
 sonable doubt of it, then your duty to them requires you to 
 acquit them. If it does so prove them guilty, then your duty 
 to the state requires you to convict whoever is so proved 
 ffuiltv. The acts of each defendant should be considered with 
 the same care and scrutiny as if he alone were on trial. If a 
 conspiracy having violence and murder as its object is fully 
 proved, then the acts and declarations of each conspirator in 
 furtherance of the conspiracy are the acts and declarations of 
 each one of the conspirators; but the declarations of any con- 
 spirator before or after May 4th, which are merely narrative as 
 to what lias been or would be dune, and not made to aid in 
 carrying into etfect the object of the conspiracy, are only evi- 
 dence aijainst the one who makes them. What was the fact
 
 INSTKUOTIONS IN THE ANARCHISTS' CASE. 729 
 
 and what arc tlic facts the jury must determine from the evi- 
 dence, and from that alone. If there are any unguarded ex- 
 pressions in any of tlio instructions which seem to assume the 
 existence of any facts, or to be any intimation as to what is 
 proved, all such expressions must be disregarded and the evi- 
 dence only looked to to determine the fact. 
 
 INSTEUCTION ON MANSLAUGHTER GIVEN FOR THE DEFENDANTS. 
 
 1. Manslaughter Defined — Jury May Find Defendants Guilty of 
 Manslaughter. — The court instructs the jury, in the words of 
 the statute, that manslaughter is the unlawful killing of a 
 human being, without malice express or implied, and without 
 any mixture of deliberation whatever. It must be voluntary 
 on the sudden heat of passion, caused by provocation appar- 
 ently sufficient to make the passion irresistible, and involuntary 
 in the commission of the unlawful act, or without willful act 
 and without due cause or circumspection. Whoever is guilty 
 of manslaughter, shall be imprisoned in the penitentiary for 
 his natural life or for any number of years. If the accused is 
 found guilty by the jury, they sliould fix the punishment by 
 their verdict. The jury are instructed that under an indict- 
 ment for murder, a part of the accused maybe found guilty of 
 manslaughter; and if, in this case, after a full and careful con- 
 sideration of all the evidence before you, you believe, beyond a 
 reasonable doubt, that the defendants, or any one of them, are 
 guilty of manslaughter, you may so find by your verdict.
 
 CHAPTER LVII. 
 INTOXICATING LIQUOES. 
 
 SALES GENERALLY. 
 
 Sec. 1. What constitutes the offense. 
 
 2. Burden of proof as to license. 
 
 3. One sale, delivered at dift'erent times. 
 
 4. Sales by servant or employe. 
 
 5. When not liable for the act of the servant. 
 
 6. Charge must be proved as alleged. 
 
 7. Sales by alleged agent — Agency must be provod. 
 
 8. Single transaction one offense. 
 
 SALES TO MINORS. 
 
 9. The offense. 
 
 10. Burden of proof as to written order. 
 
 11. Knowledge of minority immaterial. 
 
 12. Knowledge and intent material. 
 
 SELLING TO I'ERSONS IN THE HABIT OF GETTING INTOXICATED. 
 
 Sec. 13. The offense. 
 
 14. Meaning of the term " in the habit." 
 
 15. Intent necessary. 
 
 16. Knowledge or criminal intent necessary. 
 
 17. The habit must exist at the time. 
 
 18. In the habit of drinking, not enough. 
 
 19. Drunkenness defined. 
 
 SALES GENERALLY. 
 
 § 1. What Constitutes the Offense. — The court instructs the 
 jury, that in order to find the defendant guilty, it is only 
 necessary that the jury believe, from the evidence, beyond a 
 reasonable doubt, that the defendant, either by himself, his 
 agent or servant, within [eigJtteen) months before the day of, 
 etc., at and within the county of W., sold or gave away in- 
 toxicating h'quors in less quantities than, etc., the said defend- 
 ant not having a license to sell the same. It is not necessary 
 to prove that the sale or giving away was on the day laid in 
 
 (730)
 
 INTOXICATING LIQUORS. 731 
 
 tlic indictment, nor that the defendant himself actually dealt 
 out the liquor. 
 
 If the jury believe, from the evidence, beyond a reasonable 
 doubt, that the defendant, either as princii)al or as clerk, serv- 
 ant or bar-tender, sold or i!;ave away intoxicating liquor in 
 less quantity than, etc., within this county, and within {eighteen) 
 months before the iinding of this indictment, without having 
 first obtained a license therefor, as chai-ged in the indictment, 
 then the jury should find the defendant guilty. 
 
 If the jury believe, from the evidence, beyond a reasonable 
 doubt, that the defendant, either by himself or by another 
 ]")erson, as his agent or servant, sold or gave away intoxicating 
 liquors in less quantities than, etc., in manner and form as 
 charged in the indictment, then the jury should find the de- 
 fendant guilty upon as many of the counts of the indictment 
 as there are of such sales or giving away of liquor so proven. 
 
 § 2. Burden of Proof as to License.— If the jury believe, 
 from the evidence, beyond a reasonable doubt, that tlie de- 
 fendant by himself, agent or servant, made the sales, as 
 charged in the indictment, then it is not necessary for the 
 people to show, by proof in the first instance, that he had no 
 license to sell intoxicating liquors. That is a matter of de- 
 fense, and should be proved by the defendant if he had such 
 license. Potter vs. Deyo, 19 Wend., 3H1; 1 Greenl. Ev., 
 § 79; Smith vs. Joice, 12 Barb., 21; Wharton Grim. L., 2431; 
 Pendergrast vs. Peru, 20 111., 51; Gerring vs. State, 1 Mc- 
 Cord, 573; Contra: Mehan vs. State, 7 Wis., 670 
 
 § 3. One Sale Delivered at Different Times. — If the jury be- 
 lieve, from the evidence, that the defendant, on the occasion 
 testified to by the witnesses, sold to the said A. B. (one gallon) 
 and no less, and that the quantity so sold was drawn from the 
 cask and placed in a keg (or bottles) separate by itself and set 
 away for the said A. B. as his proj^erty and charged to him 
 (or paid for by him), then in such case the title to the whole 
 quantity so sold and set apart passed to the purchaser, althougli 
 he may have taken away but a part of it at the time of the 
 sale, and in such case it is a matter of no consequence whafj 
 may have been the motives of the parties in making such sale,
 
 732 INTOXICATI>'G LIQUORS. 
 
 and the jury should Hiid for the defendunt. Dolson vs. State, 
 57 Ind., 69. 
 
 § 4. Sales by Servant or Employe. — If the jury believe, from 
 the evidence, beyond a reasonable doubt, that the defendant 
 was keeping a saloon, at the time in question, at S., in this 
 county, and that the witnesses who have testitied in this case, 
 or any of them, obtained intoxicating liquors at such saloon in 
 less quantities than, etc., within {eighteen) months before the 
 finding of this indictment, then the defendant is liable, whether 
 such liquor was furnished by himself or by his employe or bar- 
 tender ; provided, the jury further believe, from the evidence? 
 that the defendant, at the time, had no license to sell such 
 liquors. 
 
 If the jury believe, from the evidence, beyond a reasonable 
 doubt, that intoxicating liquors were obtained at the saloon, 
 etc., as claimed by the prosecution, and that the saloon where 
 such liquors were obtained belonged to the defendant, and 
 was at the time in his possession, or under his control, then, 
 if there is no evidei ce to the contrary, the presumption of law 
 would be that the liquors so obtained were sold by the de- 
 fendant, either by himself, his agent or servant. 
 
 § 5. "Wlien not Liable for Act of Servant. — If a clerk or 
 bar-keeper in a saloon sell intoxicating liquor, without the 
 knowledge and against the instructions of his employer, the 
 latter is not criminally responsible for the act. Lathro]) vs. 
 State, 51 Ind., 192; Com. vs. Putnam, 4 Gray, 16. 
 
 Though the jury may believe, from the evidence, that the 
 said A. B. obtained intoxicating liquors at defendant's place of 
 business from one W., who was then acting as the agent or 
 servant of defendant, as alleged, still, if the jury further 
 believe, from the evidence, that before that time the defend- 
 ant had instructed the said agent or servant, in good faith, not to 
 sell or give away intoxicating liquors, and with a lonafide intent 
 to have such instructions obeyed, and further, that the said W., 
 in selling or giving away said liquors, was acting in violation 
 of said instructions, and against the wishes of the defendant, 
 then the jury should lind the defendant not guilty of the sale 
 80 made.
 
 INTOXICATING LIQUOKS. 733 
 
 A sale by an agent, against the known will and instructions 
 of his principal, will not render the principal liable. Ander- 
 son vs. State, 22 Ohio St., 305. 
 
 Although the jury may believe, from the evidence, that the 
 bar-tender of the defendant sold intoxicating liquor to the said 
 A. B., as charged in the indictment, and that the said A. B. 
 was at the time a person in the habit of getting intoxicated, still, 
 if the jury further believe, from the evidence, that such sale 
 was without the knowledge or consent of the defendant, and 
 against his wishes, then the defendant would not be liable 
 therefor, and the jury have no right to presume that the 
 defendant authorized his bar-tender to make such sale simply 
 because he was employed as bar-tender at defendant's saloon; 
 if the jury find there is no evidence to the contrary, the pre- 
 sumption of law is, that the bar- tender only had authority from 
 the defendant to make such sales as were lawful. State vs. 
 Mahoney, 23 Minn., 181. 
 
 § 6. Charge Must be Proved as Alleged. — The jury are in- 
 structed, that the crime charged against the defendant in the 
 indictment in this case, is that of having sold intoxicating 
 liquors without a license to sell the same ; and unless the prose- 
 cution has proved some one or more of the sales charged in 
 the indictment, beyond a reasonable doubt, the jury should 
 find the defendant not guilty. 
 
 Unless the jury believe, from the evidence, beyond a reason- 
 able doubt, that the defendant made some one or more of the 
 sales charged against him, either as principal, agent, clerk or 
 servant, within {eighteeii) months before the finding of the in- 
 dictment in this case, then the jury must find the defendant 
 not guilty. 
 
 The jury are instructed, that in this case it is not indispen- 
 sable for the people to show that the defendant himself actu- 
 allv sold or furnished the liquors in question to (Me loitnesses). 
 It is sufiicient, if the jury believe, from the evidence, beyond 
 a reasonable doubt, that the liquors were sold as charged in 
 the indictment by the defendant, or his agents or servants, 
 at any time within {eighteen) months before the finding of the 
 indictment, and that at the time the defendant had no license 
 to sell intoxicating liquors.
 
 734 INTOXICATING LIQUORS. 
 
 § 7. Sales by Alleged Agent — Agency must be Proved. — Al- 
 though the jury may believe, from the evidence, that one A. 
 B., at the time and place alleged, did unlawfully sell intoxL 
 eating liquors, still, unless the prosecution have proved by 
 evidence so as to satisfy the jury, beyond any reasonable doubt, 
 that the said A. B. when he made such sales was acting as the 
 agent, clerk, bar-tender or servant of the defendant, then, as 
 to such sales made by the said A. B., the jury should find the 
 defendant not guilty. 
 
 § 8. Single Transaction One Offense. — The jury ai'e instructed, 
 that where two or more glasses of intoxicating liquor are 
 called for by one person, and are sold at one time as part of 
 the same transaction, and all paid for by the same person, such 
 transaction constitutes but one selling within the meaning of 
 the law under which this prosecution is brought. 
 
 SALE TO MINOES. 
 
 § 9. Sale to Minors. — If the jury believe, from the evidence, 
 beyond a reasonable doubt, that the defendant, by himself, 
 agent or servant, within {eigJiteen) months before the finding 
 of the indictment in this case, within this county, sold or gave 
 away any intoxicating liquor to A. B., and that at that tim3 
 the said A. B. was under the age of twenty-one j-ears, and 
 further, that such sale was made without a written order of 
 the parents, guardian or family physician of the said A. B. 
 
 then the jury should find the defendant guilty under the 
 
 count of the indictment. 
 
 § 10. Burden of Proof as to Written Order. — The jury are 
 instructed, that all that is necessary for the prosecution to 
 prove, in order to wai-rant a conviction in this case, is to sat- 
 isfy the minds of the jury by the evidence, and beyond any 
 reasonable doubt, that the defendant, by himself, agent or 
 servant, at and within this county, within {eighteen) months 
 before the finding of this indictment, sold or gave intoxicating 
 liquors to either of the parties, as charged in the indictment, 
 and that, at that time, the person to whom the sale was made, 
 or the liquor given, was a minor under the age of twenty-one
 
 INTOXICATING LIQUORS. 735 
 
 years; provided, the defendant has failed to show that he had 
 a written order, etc. 
 
 The fact of the defendant having a written order from par- 
 ents, guardian or family physicians autliorizing a sale to a 
 minor, is a matter of defense, and if the people liave proved 
 to the jury by the evidence, beyond a reasonable doubt, the 
 sale or giving of intoxicating liquors to a minor, as charged in 
 the indictment, then the jury should find defendant guilty; 
 unless the jury believe, from the evidence, that at the time of 
 such sale he had such written order. State vs. Cornan^ 48 
 la., 567. 
 
 § 11. Knowledge of Minority Immaterial. — The jury are 
 instructed, that if they believe, from the evidence, that the 
 defendant by himself, his agent or servant, sold or gave intox- 
 icating liquor to the said A. B., and that the said A. B. was 
 at that time a minor, under the age of twenty-one years, then 
 it is wholly immaterial whether the defendant knew, or did 
 not know, that the said A. B. was a minor, nor whether the said 
 defendant was himself deceived in regard to the age of the f aid 
 minor. A person engaged in the business of selling intoxicat- 
 inor liquors, sells to a minor at his peril, and is equally guilty 
 whether he knows,' or does not know, the age of the person to 
 whom he is selling. State vs. Ilartjie lei, 24 Wis., 60; Com.xs. 
 Jimjuons, 98 Mass., 6; 3 Greenl. Ev., § 21; State vs. Cain, 
 9 W. Ya., 559; Com. vs. Flnne(jayi, 124 Mass., 324; Roljonje 
 vs. Burnham, 124 Mass., 277; McCutcheon vs. People, 69 
 111., 601. 
 
 § 12. Knowledge and Intent Material. — The jury are in- 
 structed, as a matter of law, that intent is necessary to the 
 commission of a crime, and it is a good defense to a charge of 
 selling intoxicating drink to a minor, that the dealer had good 
 reason to believe, and did believe him to be of age. Whether 
 in this case the defendant did sell to a minor, and whether he 
 took reasonable care to find out whether the said A. B. was a 
 minor, and w^hether he, in good faith, believed him to be 
 over the age of twenty-one years, are questions of fact to be 
 determined by the jury, from tlie evidence in the case. Faul- 
 ler vs. People, 39 Mich., 200 ; Bobbins vs. State, 63 Ind., 235;
 
 736 INTOXICATING LIQUORS. 
 
 Anderson vs. State^ 22 St. Ohio, 305; Acller vs. State, 55 
 Ala., 16. 
 
 SELLING TO A PERSON IN THE HABIT, ETC. 
 
 § 13. Selling to a Pei-son in the Habit, etc. — The court in- 
 structs the jury, that by the laws of this state it is unlawful 
 for any person, by himself, or by his agent or servant, to sell 
 or give intoxicating liquor to a person when he is intoxicated, 
 or to a person who is in the habit of getting intcxicated. 
 
 The jury are instructed, that if they believe, from the evi- 
 dence, beyond a reasonable doubt, that the defendant either 
 in person or by his agent or servant, within {eighteen months) 
 before the finding of the indictment in this case, sold or gave 
 to A. B. intoxicating liquor, and further, that the said A. B., 
 at the time of such selling or giving, was a person in the 
 habit of getting intoxicated, then the jury should find the 
 defendant guilty. 
 
 § 14. Meaning of the Words " in the Habit of Getting Intox- 
 icated," — The court further instructs the jury, that in giving a 
 construction to the statute under which this indictment was 
 found, the jury should give to the words "in the habit of 
 getting intoxicated," their common ordinary signification and 
 meaning ; the words mean in the law just what they mean in 
 common, ordinary conversation. 
 
 § 15. Intent Necessary. — Although the jury may believe, 
 from the evidence, that the dofen 'ant sold intoxicating liquors 
 to the said A. B., as charged in the indictment, and that the 
 said A. B. was at the time a person in the habit of getting in- 
 toxicated, still if the jury further believe, from the evidence, 
 that before making such sale, defendant made inquiry of per- 
 sons well acquainted with the said A. B., as to whether he was 
 in the habit of getting intoxicated, and was told that he was 
 not, and that the defendant used j-easonable care before selling 
 said liquor, in good faith, to ascertain wliether the said A. B. 
 was in the habit of getting intoxicated, and that when he sold 
 the said liquor he honestly and in good faith believed that the 
 said A. B. was not in the habit of getting intoxicated, then
 
 INTOXICATING LIQUOES. 737 
 
 the jury should find tho defendant not guilty. Crdbtree vs. 
 State, 30 Ohio St., 382. 
 
 § 16. Knowledge or Criminal Intent Necessary. — Tlie jury are 
 instructed, that if they believe, from the evidence, beyond a 
 reasonable doubt, that the defendant sold or gave to the said 
 A. B., intoxicating liquor, as charged in the indictment, and 
 that the said A. B. was, at the time, in "the habit of getting 
 intoxicated, then it is wholly immaterial whether the defend- 
 ant knew or did not know that the said A. B. was a person in 
 the habit of getting intoxicated. A person engaged in the 
 business of selling intoxicating drinks, selling to a person who 
 is in the habit of getting intoxicated, sells at his peril, and he 
 is equally guilty whether he does or does not know the habits 
 of the person to whom he is selling. Barnes vs. The State, 
 19 Conn., 397. 
 
 § 17. Habit Must Exist at the Time, etc. — The jury are 
 instructed, that although they may believe, from the evi- 
 dence, beyond a reasonable doubt, that the said A. B. was at 
 one time addicted to the use of intoxicating liquor, so as to be 
 in the habit of getting intoxicated, still, if the jury further 
 find, from the evidence, that before the time of the alleged 
 sale in question in this suit the said A. B. had reformed, or 
 partially reformed, his habits in that respect, and was not, at 
 the time in question, in the habit of getting intoxicated, then 
 the jury should find the defendant not guilty. 
 
 The court instructs the jury, that unless the prosecution 
 have proved, by the evidence, to the satisfaction of the jury, 
 beyond a reasonable doubt, that the said defendant did, by 
 himself, agent or servant, sell or give to tlie said A. B. intox- 
 icating liquors, and also that the said A. B. was, at the time 
 of such sale or giving away, a person then in the habit of 
 getting intoxicated, the jury should find the defendant not 
 guilty. 
 
 The court further instructs the jury, on the part of the de- 
 fendants, as a matter of law, that before they can convict the 
 defendants they must believe, from the evidence, beyond a 
 reasonable doubt, that the person named in the indictment 
 had been in the habit of getting intoxicated at the time 
 47
 
 738 INTOXICATING LIQUORS. 
 
 of the allegod sale, and whether lie was or not in such habit 
 is a question for the jurj to determine, from all the evidence 
 in the case. Gallagher vs. The Peojyle, 11 JN". E. Rep., 335; 
 120 111., 179. 
 
 § 18. In the Habit of Drinking, Not Enongh. — The jury are 
 instructed, that it is not enough to warrant a conviction in this 
 case, tliat it shall appear, from the evidence, beyond a reason- 
 able doubt, that the said A. B. was a person in the habit of 
 drinking intoxicating liquors at the time in question; it must 
 appear not only that he was in the habit of drinking intoxicat- 
 ing liquors, but that he was, at the time, drinking them to 
 such an excess as to be in the habit of getting intoxicated. 
 
 § 19. Drunkenness Defined. — The court instructs the jury 
 that a man is drunk in a legal sense when he is so far under 
 the influence of intoxicating liquor that his passions are visibly 
 excited or his judgment impaired by the liquor. State vs- 
 Pierce, 65 la., 85; 1 Bouv. Law Die, 510.
 
 CHAPTER LVIII. 
 LARCENY. 
 
 Sec. 1. Larceny defined. 
 
 2. Value of property stolen must be proved. 
 
 3. Name of the owner, etc., must be proved. 
 
 4. Special property sufficient. 
 
 5. Identity of the accused must be established. 
 
 6. Criminating circumstances. 
 
 7. Person having possession of property must be produced. 
 
 8. What constitutes a taking and carrying away. 
 
 9. Lost property found. 
 
 10. Estrays, larceny of. 
 
 11. Taking must be with felonious intent. 
 
 12. Taken under claim or right of title. 
 
 13. Possession obtained by fraud. 
 
 14. Money stolen umst be proved to be genuine. 
 
 15. Recent possession of stolen property. 
 
 16. Possession explained. 
 
 17. Petit larceny — Second offense — Illinois. 
 
 EMBEZZLEMENT LARCENY BY BAILEE, ETC. 
 
 18. Meaning of the term. 
 
 19. Felonious intent necessary. 
 
 20. Taken with honest intent to repay defendant, etc. 
 
 21. No felonious intent, when. 
 
 22. Embezzlement by banker — Illinois. 
 
 23. Embezzlement by clerk, etc. — Illinois. 
 
 24. Venue of possession. 
 
 DIFFERENT DEGREES OF LARCENY. 
 
 25. Rule for finding value of property. 
 
 26. Form of verdict — Illinois. 
 
 LARCENY. 
 
 § 1. Larceny Defined. — The court instructs the jury, tliat 
 larceny is the felonious stealincr, taking and carrying away of 
 the personal goods, money, bond, bill, note or other personal 
 property of another. 
 
 (739)
 
 740 LAECENY. 
 
 § 2. Value Must be Proved. — That among tlic material aver- 
 ments contained in the indictment necessary to be proved in 
 order to warrant a conviction, is the one that the property 
 alleged to have been stolen had some value, and if the prosecu- 
 tion have failed to prove, affirmatively, some value to said 
 property, then it is the duty of the jury to acquit the accused. 
 A simple statement of counsel as to the value of the property 
 will not suffice; it must be proved in some of the ways known 
 to the law, or the verdict should be not guilty. State vs. 
 Krleger, 68 Mo., 98. 
 
 § 3. Name of the Person Injured Must be Proved. — The court 
 
 instructs the jur}', that it is essential in all cj-iminal prosecu- 
 tions, that the name of the jmrty injured should be proved, as 
 charged in the indictment ; and, if the p">roof shows in this 
 case, that the property stolen belonged to C. B. and not to A. 
 B., as charged in the indictment, the jui'y must acquit the 
 defendant. 
 
 It is necessary for the prosecution to prove the ownership 
 of the property, as alleged in the indictment; and, unless the 
 jury believe, from the evidence, that the said A. B, was the 
 owner of the (Jwrse), mentioned in the indictment, the jury 
 must find the defendant not guilty. McBride vs. Com.^ 13 
 Bush. (Ky.), 337; BoUnson vs. State, 5 Tex. App., 519. 
 
 § 4. Special Property Sufficient. — As to the ownership of the 
 property, the court instructs the jury, that if the said 0. D. 
 had the ac'ual care, custody and right to use the said {horse), 
 and was in the actual possession at the time of the alleged 
 taking, not as the agent or servant of the real owner, this 
 would be, for the purposes of this trial, sufficient evidence of 
 ownership to sustain the allegation in tlie indictment, that he 
 was the owner. Crockett vs. State, 5 Tex, App., 526. 
 
 § 5. Identity of the Accused. — If the jury are satisfied from 
 the evidence, beyond a reasonable doubt, that a larceny was 
 committed in manner and form as charged in the indictment 
 by some one or more of the defendants, and that this was done 
 in pursuance of a common purpose entertained by all for the 
 benefit of all, and according to a plan or scheme contrived or
 
 LAKCENT. 741 
 
 agreed upon by all of the defendants, then the Jury will be 
 warranted in finding them all guilty, although you may be 
 in doubt as to the identity of the particular defendant who 
 actually took and carried away the property in question. 
 Neville vs. State, 60 Ind., 308. 
 
 § 6. Criminating Circumstances. — If the jury believe, from 
 the evidence, beyond a reasonable doubt, that the prosecuting 
 witness, A. B., had money in his possession, of the kind and 
 character mentioned in the indictment, and that the same was 
 stolen from him, in manner and form as charged in the indict- 
 ment, and that the defendant had an opportunity to steal the 
 same, at and about the time it is alleged to have been stolen, 
 and that shortly thereafter the defendant was seen to be spend- 
 ing the same kind of money lavishly, and for articles of or- 
 nament and luxury, apparently unsuited to his circumstances 
 and condition in life, then tliese are circumstances tending to 
 show the guilt of the defendant, and should be considered by 
 the jury in connection with all the other evidence in the case, 
 in determining the guilt or innocence of the defendant, unless 
 he has given a satisfactory account of how he obtained the 
 money which he was spending. 
 
 § 7. Person Having Possession of Pi'operty mnst be Produced. — 
 
 It is a rule of law, that when property is, by the owner, placed 
 in the care and custody and under the control of another, and 
 such property is alleged to have been stolen from the posses- 
 sion of such other ]:»erson, then, if it is in tiie power of tlie 
 lirosecntion to produce the person, so having such possession, 
 as a witness, he must be produced, in order to show that the 
 property was not taken with his consent; and, in such case, the 
 evidence of such ])erson cannot be supplied by other proof, 
 nor can the accused be convicted without it, 2 Kuss. on Grim., 
 122; State vs. Osborne, 28 Iowa, 9. 
 
 § 8. What Constitutes Taking and Carrying Away. — To con- 
 stitute larceny there must be a felonious taking and carrying 
 away of the property mentioned in the indictment or some 
 part of it but it is not necessary that the prt)perty should be 
 carried or removed to any particular distance from the jilace
 
 742 LAKCENY. 
 
 wliere it is taken, and in th's case, if the jury believe, from the 
 evidence, beyond a reasonal)1e doubt, that the defendant took 
 the property mentioned in the indictment or any part of it 
 from the place where it Mas left by the owner and concealed 
 the same (in the same room or building) with intent to steal 
 the property so taken, this would be a sufficient taking an'l 
 carrying away of the property to constitute the crime of lar- 
 ceny. Nutzel vs. State^ 60 Ga., 264; State vs. Green^ 81 E". 
 a, 560. 
 
 § 9. Lost Goods Found. — The law is that if a man finds goods 
 that are actually lost or are reasonably supposed by him to have 
 been lost, and he appropriates them to his own use with intent 
 to take entire dominion over them as his own, this is not lar- 
 ceny, provided he believes, and has good reason to believe, that 
 the owner cannot be found. Baker vs. The State, 29 Ohio 
 St., 184; Wharton Grim. Law, 650 ; 1 Bishop Grim. Law, § 419. 
 
 The finder of lost property is not bonnd to make any search 
 for the owner. He is under no legal obligation to advertise 
 it in a newspaper or to search the papers to see if the loss has 
 been advertised. And, although the jury may believe, from 
 the evidence, that the said A. B. lost the property mentioned 
 in the indictment, and that the defendant found the same, and 
 afterwards converted it to his own use, still, if you further 
 believe, from the evidence, that at the time he so found it 
 there was nothing in the nature of the property, or in the cir- 
 cumstances under which it was found, to indicate to the de- 
 fendant who the owner was, or where he could be ascertained, 
 and that the defendant, at the time he found the property, 
 did not intend to steal the same, then you should find him not 
 guilty, although you may believe that he afterwards purposely 
 concealed the fact that he liad found the property and con- 
 verted it to his own use. Brooks vs. State, 35 Ohio St., 46. 
 
 It is not necessar}^, to the conviction of the defendant, that 
 he should have known, or have had reason to believe he 
 knew, the particular person who owned the property at the 
 time of the alleged finding; or that he should have had the 
 means of identifying the owner immediately, at that time. If 
 tlie jury believe, from the evidence, beyond a reasonable doubt, 
 that the prosecuting witness A. B. was the owner of the prop-
 
 LAECENT. 743 
 
 erty described in tlie indictment, and that the defendant found 
 the same, and that at the time of the linding he had reason- 
 able gronnd to believe, from the nature of the property, or 
 from the circumstance under which he found it, that if he 
 did not conceal the fact that he had found it, but dealt hon- 
 estly with it, the owner would appear or be ascertained, then, 
 if he purposely concealed the fact that he had found the prop- 
 erty, he would be guilty of larceny ; provided, the jury fur- 
 ther believe, from the evidence, that at the time the defend- 
 ant first took the property into his possession, he intended to 
 convert it to his own use. BrooJcs vs. State, 35 Ohio St., 46. 
 
 § 10. Larceny of Estrays. — If the jury find, from the evi- 
 dence, be3^ond a reasonable doubt, that the animal mentioned 
 in the indictment was an estray, and that the defendant took 
 it into his possession, or found it running witli his stock and 
 took care of and fed it with his own stock, and tliat wlien he 
 first got it into his possession he did not intend to steal it or 
 feloniously convert it to his own use, then he would not be 
 guilty of the crime of larceny, although you may find, from 
 the evidence, beyond a reasonable doubt, that he afterwards 
 killed the animal and converted it to his own use, witli intent 
 to deprive the owner of it. Starch vs. State, 63 Ind., 283 ; 
 Grwjs vs. State, 58 Ala., 425. 
 
 If the jury believe, from the evidence, beyond a reasonable 
 doubt, that the defendant took the animal mentioned in the 
 indictment into his possession while the same was running in 
 the public highway, and that at the time he so took the ani- 
 mal he knew it was not his own, and that he intended then to 
 steal and convert it to his own use and to deprive the owner 
 of his property, whoever he might be, and that in pursuance 
 of such intention he afterwards killed the animal and con- 
 verted it to his own use, this would amount to the crime of 
 larcenj' ; provided, you find all the other allegations of the 
 indictment proved, by the evidence, beyond a reasonable 
 doubt. Starch vs. State, 63 Ind., 283; State vs. JIarii?i, 28 
 Mo., 530; Com. vs. Masoti, 105 Mass., 163. 
 
 § 11. Taking must be with Felonious Intent. — The court in- 
 structs the jury, that every unlawful taking of the goods and
 
 744 LARCENY. 
 
 chattels of another, without his knowledge or consent, does 
 not amount to a larceny; to make it such, the taking must be 
 such, and accompanied by such circumstances, as show a felo- 
 nious intent, that is, an intent to steal the property. Mason 
 vs. State, 32 Ark., 23S; Hart vs. State, 57 Ind., 102; Com. vs. 
 Hurd, 123 Mass., 438. 
 
 Even though the jury may believe, from the evidence, that 
 the money in question was taken from the said A. B. conti ary 
 to his will and without his knowledge, still, if the evidence 
 shows that the defendant, when he obtained the money, did 
 not intend to steal it, but took it only for safe keeping, intend- 
 ing to return the same to the owner, then the jury should 
 acquit the defendant. 
 
 The court instructs the jury, that every unlawful taking 
 and carrying away of the personal goods of another, will not 
 amount to larceny; to constitute larceny, a felonious intent 
 must be shown to have accompanied the original taking; that 
 is, the goods nmst have been taken with an intent to steal the 
 same. State \q. Wood, -^(j la., 116; Ilum^hrey v^. State, %Z 
 Ind., 223. 
 
 § 12. Taken under Claim of Right or Title. — The jury are 
 further instructed, that although they may believe, from the 
 evidence, beyond a reasonable doubt, that the defendant took 
 and carried away the property in question, as charged in the 
 indictment, still, if they further believe, from the evidence, 
 that the defendant took the property under a claim of title 
 honestly entertained, then he is not guilty of larceny; and, in 
 such case, it makes no difference whether he did, in fact, have 
 any legal right to the possession of the property or not. 
 State vs. Bond, 8 Clarke (la.), 540; 2 Whar. on Crim. Law, 
 § 1770. 
 
 The intent being necessary to complete the crime of lar- 
 ceny, if a person, under the honest impression that he has a 
 right to the property, said to have been stolen, takes it into his 
 possession under such claim of right, this would not be lar- 
 ceny; and, in this case, if the prosecution have failed to prove, 
 beyond a reasonable doubt, that the property in question was 
 taken by the defendant, knowing, at the time, that it was the 
 property of another, and with the intention of feloniously
 
 LAKCENY. 745 
 
 converting the same to his own use, then it is your duty to 
 acquit the defendant. 
 
 The court further instructs the jury, that where property is 
 taken under a claim of right, and there be any fair ])retense 
 of right to the property, and the jury beheve, from the evi- 
 dence, tliat such claim is made in good faith, then it is the 
 duty of the jury to find the defendant not guilt}'. 
 
 Although you may believe, from the evidence, that the 
 defendant would be liable in an action of tresjoass fortlievahic 
 of the property in question, still, unless the prosecution have 
 proved, beyond a reasonable doubt, that the defendant feluni- 
 ously stole the same, then you must acquit the defendant. 
 
 § 13. Possession Obtained by Fraud with Intent, etc. — If the 
 jury believe, bej'ond a reasonable doubt, that the defendant, 
 at or about the time stated in the indictment (at the saloon of 
 E. M.), in this county, by any fraudulent means or representa- 
 tion, induced the said A. B. to take out his money, and that, in 
 consequence thereof, the said A. B. did take out his money, 
 and that in pursuance of such intent, the said defendant did 
 then and there feloniously steal, take and carry away said 
 money, in manner and form as charged in the indictment, then 
 the jury should Und the said defendant guilty of larceny. 
 
 If the jury believe, from the evidence, beyond a reasonable 
 doubt, that the defendant obtained the possession of the money, 
 described in the indictment, fraudulently and with an intent 
 then and there to steal the same, and of feloniously convert- 
 ing the same to his own use, in manner and form as charged 
 in the indictment, then this in law would amount to a larceny, 
 notwithstanding the said A. B. knowingly and intentionally 
 parted with the possession of the money. 3 Greenl. on Evi., 
 § 160; 2Whar. on Grim. Law, § 1787. 
 
 § 14. Money Must be Proved to be Genuine. — The jury are in- 
 structed, that to warrant a conviction under this indictment, 
 the jury must believe, from the evidence, that one or more of 
 the treasury notes, bank bills or other money, alleged to have 
 been taken by the defendant, was a genuine bill or note ; and if 
 the jury find that the people have failed to produce any proof 
 of the genuineness of such treasury note, bank bill or other
 
 746 LARCENY. 
 
 m ->ney, and that there is no such evidence before the jury, 
 then the jury should find the defendant not guilty. Collins 
 vs. The Feoj)le, 39 111., 233 ; 1 Starkie on Evidence, 829, note. 
 
 § 15. Possession of Stolen Property. — The court instructs the 
 jury, that the possession of stolen property recently after the 
 theft by the person charged, if unexplained, is a circumstance 
 tending to prove his guilt; and if the jury believe, from the 
 evidence, that the defendant was found with the stolen prop- 
 erty in his possession, then, in determining the w^eight to be 
 attached to that circumstance, as tending to prove guilt, the 
 jury shall consider all the circumstances attending such pos- 
 session — the proximity of the place where found to the place 
 of the larceny; the lapse of time since the property was 
 taken; whether the property was concealed; whether the 
 party admitted or denied the possession; the demeanor and 
 character of the accused; whether other persons had access 
 to the place where the property was found. All these cir- 
 cumstances, so far as they have been proved, are proper to be 
 taken into account by the jury in determining how far the 
 possession of the proj^erty by the accused, if it has been 
 proved, tends to show his guilt. 3 Greenl. Evi., § 32; Co7ik- 
 wriglit vs. The People^ 35 111., 2u4; State vs. Hodge, 60 
 K H., 510. 
 
 The court instructs the jury, that the possession of recently 
 stolen property is usually regarded, in law, as a criminating 
 circumstance, strongly tending to show that the possessor stole 
 the property, unless the facts and circumstances surrounding 
 or connected with such possession, or other evidence, explains 
 or shows such possession might have been acquired honestly. 
 Possession of stolen property, immediately after the theft, is 
 sufficient to warrant a conviction, unless attending circum- 
 stances, or other evidence, so far overcomes the presumption 
 thus raised as to create a reasonable doubt of the prisoner's 
 guilt, when an acquittal should follow. SaJdinger vs. The 
 People, 102 111., 241 ; Fowle vs. State, 47 Wis., 545 ; State vs. 
 Pennyman, 68 la., 216; Johnson vs. Miller, 29 N. W. 
 Kep., 743. 
 
 In this case, if the jury believe, from the evidence, beyond 
 a reasonable doubt, that the property described in the indict-
 
 LARCENY. 747 
 
 ment was stolen, and that the defendant was found in the 
 possession of the property soon after it was stolen, then snch 
 possessi n is, in law, a strong; criminating circumstance, tend- 
 ing to show the guilt of the defendant, nnless the evidence, 
 and the facts and circumstances proved, show that he may 
 have come honestly in possession of the same. Smith vs. 
 State, 58 Ind., 3i0; Wathins vs. State, 2 Tex. App., 73. 
 
 § 16. Possession Explained. — The court instructs the jnry, 
 that while possession of stolen property recently after the 
 theft, if unexplained, is a circumstance tending to show the 
 guilt of the possessor, still, in this case, if the jury believe 
 from the evidence, tliat the defendant bought the property in 
 question at, etc., openly and publicly, and unconnected with 
 any suspicious circumstances of guilt, this is a satisfactory 
 account of his possession of the property, and removes every 
 presumption of guilt growing out of such possession. Jones 
 vs. The People, 12 III., 259. 
 
 § 17. Petit Larceny, Second Offense — Illinois Statute. — The 
 
 cou:t instructs the jury, as a matter of law, that in case of a 
 second conviction of the offense of petty larceny, by any per- 
 son over the age of eighteen years, the punishment shall be 
 by imprisonment in the penitentiar}^, for a term not exceeding 
 three years; and on the trial under an indictment for petty 
 larceny, a duly certified copy of the record of a former con- 
 viction and judgment of any court of record in this state for 
 a like offense against the party indicted, shall he j^rima facie 
 evidence of such former conviction, and may be used in evi- 
 dence against such party ; provided, that such former con- 
 viction and judgment shall be set forth in apt words in the 
 indictment. 
 
 LARCENY AS BAILEE EMBEZZLEMENT. 
 
 § 17. Meaning of the Term. — The court instructs the jury, 
 that the meaning of the word embezzlement is the fraudulently 
 removing or secreting jiersonal pro [lerty, with which a party 
 has been intrusted, for the purpose of applying it to his own 
 use. There can be no embezzlement, within tlie legal mean-
 
 748 LAKCENY. 
 
 ing of the word, unless the party, when he takes the proj^erty 
 or money, does it secretly, with an intent to defraud the 
 owner. People vs. Hurst, 28 N. "W. Kcp., 838. 
 
 The court instructs the jury, as a matter of law, that if any 
 bailee of any bank bill, note, money or other proj^erty, shall 
 convert the same to his own use, with intent to steal the 
 same, or secretes the same with intent so to do, he shall be 
 deemed guilty of larceny. (Illinois.) 
 
 The court instnict the jury, as a matter of law, that who- 
 ever embezzles or fraudulently converts to his own use, or 
 secretes, with intent to embezzle or fraudulently convert to his 
 own use, money, goods or property delivered to him, which 
 may be the subject of larceny, or any part thereof, shall be 
 deemed guilty of larceny. (Illinois.) 
 
 § 18. Felonious Intent Necessary. — That to constitute the 
 crime of larceny a felonious intention, that is an intention to 
 steal, must always exist. And, under our statute, making the 
 conversion of property to his own use by a bailee larceny, the 
 crime is not made out by merely showing a conversion of the 
 property to his own use by the bailee, but it must further ap- 
 pear that such conversion was with an intent to steal the same. 
 The jury are instructed, that the taking or conversion of per- 
 sonal property which renders a person guilty of simple lar- 
 ceny, or of embezzlement, is a feloniously taking or conver- 
 sion, and before you can convict the defendant in this case^ 
 you must be satisfied, from the evidence, beyond a reasonable 
 doubt, that the property mentioned in the indictment, or some 
 part of it, was converted to his own use by the defendant, 
 with an intention, at the time, to steal the same. Phelps vs. 
 The People, 55 111., 334; People vs. Ilushand, 36 Mich., 306; 
 ma vs. State, 57 Wis., 377; People vs. Gallancl, 55 Mich., 628. 
 
 § 19. Taken with Intent to Repay Himself. — If tlie jury be- 
 lieve, from the evidence, that the defendant did take and 
 convert to his own use money belonging to the said A. B., 
 and which came into his hands as the clerk of the said A. B., 
 still, if the jury further believe, from the evidence, that when 
 defendant so took said money, he honestly and in good faith 
 intended and expected to replace said money, and make the
 
 LARCENY. 749 
 
 same good to tlie said A. B., then tlic jury should uotfiud the 
 defendant guilty under this indictment. 
 
 § 20. No Felonious Intent, Wlien. — If the Jury believe, from 
 the evidence, that the defendant, as clerk or salesman of the said 
 A. B., received moneys belonging to him, and honestly and 
 fairly charged liimself with the same on the account books 
 kept for that purpose, and afterwards used the money for his 
 own benefit, without the knowledge of the said A. B., never 
 attempting to conceal the fact, but acknowledged the same 
 when spoken to about it, and promised to repay it as soon as 
 lie was able, these facts are all proper to be taken into account 
 by the jury, with all the other evidence in the case, in deter- 
 mining the question whether the defendant used the money 
 with any felonious or fraudulent intent; and if, upon a consider- 
 ation of all the facts and circumstances proved, the jury have 
 any reasonable doubt of such felonious and fraudulent intent, 
 they should find the defendant not guilty. 2 Bishop on Grim. 
 Law, § 360. 
 
 § 21. Embezzlement by Banker — Illinois Statute. — If you be- 
 lieve, beyond a reasonable doubt, from the evidence, that the 
 defendant was engaged in the business of banking, and in such 
 business received on deposit with intent to defraud, from one 
 
 S. D., the sum of $ , or any other sum, that at the time 
 
 such deposit was made said D. was not indebted to the de- 
 fendant, that at the time of receiving said deposit the defend- 
 ant was insolvent, and knew himself to be so, and that said 
 deposit or any portion of it was lost to said D., then you 
 should find the defendant guilty. Miwphy vs. People^ 19 111. 
 App., 125. 
 
 A depositor of money in a bank is a person who places his 
 money therein for safe keeping. Ihid. 
 
 It is not necessary tliat the prosecution should prove, by 
 direct and positive evidence, that the defendant was insolvent 
 
 on the day of, etc., or that he knew he was insolvent, but it 
 
 is sufficient, if you are satisfied beyond a reasonable doubt, from 
 all the circumstances in evidence in the case, that he was in- 
 solvent at that time, and took and converted the deposit with 
 fraudulent intent. Ibid.
 
 750 LARCENY. 
 
 It is your province, as jurors, to say under your oaths, from 
 tlie evidence, whether or not the defendant was insolvent at 
 the time he received the dejjosit. Ihid. 
 
 § 22. Embezzlement by Clerk. — The court instructs the jury, 
 as a matter of law, that if any officer, ao;ent, clerk or servant, 
 of any incorporated company, or if a clerk, agent, servant or 
 apprentice of any person or co-partnership, or society, em- 
 bezzles or fraudulently converts to his own use, or takes and 
 secretes with intent so to do, without the consent of his com- 
 pany, emplo^-er or master, any property of such com]3any, 
 employer, master, or another, which has come to his posses- 
 sion, or is under his care by virtue of such office or employ- 
 ment, he shall be deemed guilty of larceny. 
 
 § 23. Venue of Conversion. — If the jury believe, from the 
 evidence, beyond a reasonable doubt, that the defendant had 
 in his possession, in thiscoimty, money which belonged to the 
 said A., and that while he so held it, in this county, he formed 
 the purpose and intent to convert the same to his own use, 
 with intent to steal the same, and that he did afterwards, in 
 pursuance of such intent, convert the same to his own use, 
 then he would be guilty of larceny as bailee, no matter 
 whether he actually converted the same to his own use in this 
 county or in the county of S. 
 
 Although the jury may believe, from the evidence, beyond 
 a reasonable doubt, that the defendant bad in his possession, in 
 this county, money of the said A., and afterwards converted t'le 
 same to his own use, still, if you further believe, from the evi- 
 dence, that he carried said money into the county of S., and 
 then for the first time formed a purpose in his own mind of 
 con\erting the same to his own use, and did afterwards con- 
 vert the same, etc., in the said county of S., then the jury 
 should find the defendant not guilty. Camj>bell vs. State, 35 
 Ohio, 70. 
 
 § 2i. Rule for Determining tlie Valne of Property. — The court 
 further instructs the jury, as a matter of law, if they find the 
 defendant guilty of the larceny, as charged in the indictment, 
 it will then be their duty to find, from the evidence in the
 
 LAKCENT. 751 
 
 case, the value of the ]-)roperty stolen, and to state such value, 
 as found in their verdict; and if, after a careful consideration 
 of all the evidence in the case, the jury luive a reasonable 
 doubt, arisinc^ from all the evidence, as to the value of such 
 property being greater than twenty dollars (Iowa), it will be 
 their duty, under the law, to find the value to be twenty dol- 
 lars, or less, as shown by the evidence. State vs. IFoocZ, 46 la., 
 116; State vs. McCarty, 34 N. W. Eep., 606. 
 
 § 25. Larceny — Form of Verdict — Illinois. — The court in- 
 structs the jury, as a matter of law, that if they find the de- 
 fendant not guilty they will so state in their verdict; and that, 
 if they find the defendant guilty, they will so state in their 
 verdict, and, if guilty, they will also state in their verdict, 
 the value of the money or property stolen; if they find such 
 value to be above fifteen dollars they will fix in their verdict 
 his term of imorisonment, which may not be less than one 
 nor more than ten years in the penitentiary. If they find the 
 value of the money or property to be fifteen dollars, or less, 
 they will so state, leaving the term of imprisonment in the 
 jail or workhouse to be fixed by the court.
 
 CHAPTER LIX. 
 
 MALICIOUS MISCHIEF. 
 
 Sec. 1. The offense. 
 
 2. Malice, how proved. 
 
 3. Ownership, how proved. 
 
 4. Ownership must be proved as alleged. 
 
 5. Injury must be proved as alleged. 
 
 6. Malice must be proved. 
 
 7. Malice against the owner must be proved. 
 
 § 1. Malicious Mischief. — The jury are instructed, tliat in 
 this case the defendant is charged with having willfully and 
 maliciously, etc.; and if the jury believe, from the evidence, 
 beyond a reasonable doubt, that the defendant committed tlie 
 crime, in manner and form as charged in the indictment, 
 within {eighteen months) before the finding of the indictment 
 in this case, then the jury should find the defendant guilty. 
 
 § 2. Malice, How Proved. — If the jury believe, from the 
 evidence, bej'ond a reasonable doubt, that the defendant 
 intlicted the injury upon the property in question, in manner 
 and form as charged in the indictment, willfully and wan- 
 tonly, and without any reasonable excuse being given there- 
 for, then the law will imply malice against the owner of the 
 property. 2 Whar. Crim. Law, 7 Ed., 20JS. 
 
 § 3. Ownership, How Proved. — When personal property 
 left in the care and custody, and under the control of a person 
 not the absolute owner, but having a legal right to such pos- 
 session, not as agent or servant of such owner, is injured, the 
 person having such control and possession has such an interest 
 in the property as will authorize the property to be laid in tlie 
 indictment, for maliciously injuring the same, as the property 
 of the person so having it in charere. 2 Whar. Crim, Law, 2 
 Ed., 1818; Peo;ple vs. Rorr, 7 Barb., 9. 
 
 (752)
 
 MALICIOUS MISCHIEF. 753 
 
 If the jury believe, from the evidence, beyond a reasonable 
 doubt, that the property in question was, at the time of the 
 alleged injury, either the absolute projierty of the said A. B., 
 or that it was left in liis possession by the owner, with the 
 right to use and control the same, and with an absolute right 
 to the possession thereof at the time of the alleged injury, 
 then the ownership of the property is properly laid in the 
 indictment, as the property of the said A. B. 
 
 § 4. Ownership Must be Proved as Alleged. — That the prop- 
 erty in the animal injured is laid in the said A. B., and it is 
 material for the prosecution to prove that he had a general or 
 special property in the animal ; and unless this has been proved 
 to the exclusion of every reasonable doubt, the defendant is 
 entitled to an acquittal. 
 
 § 5. Injury Must be Proved as Alleged. — If the jury believe, 
 from the evidence, that the animal described in the indict- 
 ment was injured by some one, in some manner, this will not 
 authorize the jury to find the defendant guilty, unless they are 
 satisfied, beyond a reasonable doubt, that the injury was in- 
 flicted by the defendant, and in the manner desci'ibed in the 
 indictment. 
 
 If the jury believe, from the evidence, that the animal 
 might reasonably have been injured by some other person, or 
 in some othei' manner than that charged in the indictment, 
 this is sufficient to raise a reasonable doubt, and the defendant 
 should be acquitted. 
 
 § 6. Malice Must be Proved. — This being an indictment for 
 malicious mischief, malice is a necessary element to be proved, 
 or made to appear from the facts or circumstances proved. 
 Without this ingredient the crime is not complete, and the 
 act complained of would be only a trespass, for which tlie 
 party injured would be compelled to resort to a civil action 
 for redress. Gaskill vs. State^ 56 Ind., 550. 
 
 § 7. Malice against the Owner Must be Shown, — That the 
 malice necessary to constitute this offense must exist against 
 the owner of the property, or against some one having a gen- 
 
 48
 
 754 MALiciors mischief. 
 
 era! or special interest therein. Malice against the animal, if 
 proved, will not warrant a conviction. IState vs. Enslow^ 10 
 la., 115; 2 Bishop Crim. Law, § 964; U. S. vs. Gideon^ 1 
 Minn., 292. Contra: Moshj vs. State, 28 Ga., 190. 
 
 In order to convict the defendant upon this indictment, the 
 prosecution must prove, to the satisfaction of the jury, that the 
 defendant knew or supposed the animal in question belonged 
 to the said A. B., and so knowing or supposing, willfully and 
 deliberately injured the same, through malice towards the said 
 A. B.; and unless this has been done it is your duty to acquit 
 the defendant. JS'ewton vs. State, 3 Tex. App., 245, 
 
 If the jury believe, from the evidence, that the defendant 
 shot and injured the animal in question, in manner and form 
 as charged in the indictment, recklessly and wantonly, and 
 without any provocation, then the law will presume malice 
 against the owner, and the jury should find defendant guilty. 
 MoshyyQ. State, 28 Ga., 190. 
 
 If the jury believe, from the evidence, beyond a reasonable 
 doubt, that the defendant injured the (property in question) 
 that the injury was a serious one and was done willfully and 
 deliberately for the purpose of gain or benefit to himself, then 
 the jury may find the defendant guilty, in manner and form as 
 charged in the indictment, although the evidence does not 
 show that the defendant had any personal malice towards the 
 owner of the property. Brown vs. State^ 26 Ohio St., 176.
 
 CHAPTER LX. 
 
 PERJURY. 
 
 Sec. 1. The offense — How proved, etc. 
 
 2. Proof to authorize conviction 
 
 3. Materiality, when sufficient. 
 
 4. One witness, when sufficient. 
 
 6. Authority of officer administering the oath must be shown. 
 
 6. The testimony alleged must be proved 
 
 7. No reasonable grounds of belief. 
 
 8. Testimony must be knowingly and willfully false, 
 
 9. Official character of the justice must be proved. 
 
 10. That the accused was sworn must be proved. 
 
 11. More than one witness required. 
 
 12. Every material allegation must be proved. 
 
 13. Materiality must be shown. 
 
 14. The test of materiality. 
 
 PEKJUEY. 
 
 Note. — Perjury assigned upon testimony given by defendant on a trial 
 before a justice of the peace, in swearing that he " bought the horse of A. 
 B., and paid ^100 cash for it at the time." 
 
 § 1. Charge must be Proved in Manner and Form, etc. — If the 
 jury believe, from tlie evidence, beyond a reasonable doubt, 
 that the defendant knowingly and willfully testified falsely, 
 in manner and form as charged in the indictment in this case^ 
 then the jury should find the defendant guilty. 
 
 § 2. Proof to Anthorize Conviction. — If the jury believe, from 
 the evidence, beyond a reasonable doubt, that some time ou 
 or about, etc., upon the trial of an action of {replevin), in 
 
 which the value of the property did not exceed % , and 
 
 then pending before one R. L., an acting justice of the peace 
 of this county, the said defendant was sworn as a witness, by 
 said justice, and then testified that he bought the {horse) of A. 
 B., and paid $100 in cash for it at the time, in manner and 
 form as charged in the indictment, and if the jury further be- 
 
 (755)
 
 756 PEEJUKY. 
 
 lieve, from the evidence, beyond a reasonable doubt, that 
 M'hether he liad so bought tlie {hoi'se) of A. B., and paid $100 
 in cash for it at the time, uas a material question on such trial, 
 and that such testimony was imtrue and false, and known to 
 the defendant to be untrue and false at the time he gave such 
 testimony, tlien the jury should find the defendant guilty. 
 
 § 3. Materiality Sufficient, Wlien. — The jury are instructed, 
 as a matter of law, that to render testimony material in a case 
 it is not necessary that it should bear directly ui)on the main 
 issue in the case ; it is sufheient if it is material to any ques- 
 tion arising upon the trial, and such as, if it were true, might 
 properly influence the justice or the jury before whom the 
 case is being tried in any matter affecting the rights of the 
 parties. 2 Bishop on Crim. L., § 994; 3 Greenl. Evi., § 195; 
 Com. vs. Grant, 116 Mass., IT. 
 
 In this case, if the jury believe, from the evidence, beyond 
 a reasonable doubt, that a suit was being tried before the said 
 E. L., an acting justice of the peace in this county, in manner 
 and form as charged in the indictment, and also that one of 
 the questions which arose on said trial was, etc. (or thai any 
 witness testified that, etc.), then the court instructs you, as a 
 matter of law, that whether the said defendant bought the 
 horse of A. B., and paid Si 00 in cash for it, at the time; was 
 a material question on said trial, and if the jury further be- 
 lieve, Irom the evidence, beyond a reasonable doubt, that the 
 defendant then and there Avas sworn as a witness by the said 
 justice, on said trial, and testified that, etc., and that such testi- 
 mony was false, and that the defendant knew it to be false 
 when he so testified, then the jury should find the defendant 
 guilty. 
 
 § 4. One Witness SiifficiVnt, "NVlien. — The conrt instructs the 
 Jury, that as to each and all of the material averments in the 
 indictments, except the allegation of the falsity of the testi- 
 mony therein stated and set forth, they may be proved by tlie 
 testimony of one witness alone; provided, the jury are satis- 
 fied, beyond a reasonable doubt, of the truth thereof b}' tlie 
 testimony of such witness; and as regards proving the falsity 
 of such testimony, the court instructs the jury, Ihat while that
 
 PERJUKT. 757 
 
 fact cannot be established by the testhnony of one witness 
 alone, it is not absolutely necessary that it be established by 
 the testimony of two witnesses; it may be proved by the tes- 
 timony of one witness and other corroborating facts or cir- 
 cumstances corroborating such witness; provided, the jury 
 are satisfied, beyond a reasonable doubt, from the testimony of 
 such witness, and such corroborating facts and circumstances, 
 that such testimony was false in fact. V. 8. vs. Wood^ 14 
 Peters, 430; 1 Greenl. Evi., § 257; State vs. Baymon^ 20 
 la., 5S3. 
 
 § 5. Authority of the Officer Must be Showm. — The jury are 
 further instructed, that while it is necessary for the prosecu- 
 tion, in order to warrant a conviction for perjury, to show 
 that the person administering the oath was authorized, by 
 law, to administer oaths, still, if it be shown, by the evidence 
 beyond a reasonable doubt, that the oath was administered by 
 a person who was then an acting justice of the peace in and 
 for the county where the oath was administered, this is suffi- 
 cient evidence of his authoi-ity to administer the oath. Iverr 
 vs. People, 42 111., 307; State vs. Furlong, 26 Me., 69; Wes- 
 ton vs. Lu'niley, 33 Ind., 486. 
 
 § 6. Testimony Alleged Must be Proved. — The jury are fur- 
 ther instructed, that while it is incumbent upon the peo- 
 ple, in order to warrant a conviction, to prove, as one of 
 the material averments in the indictment, that the defendant 
 did testify to one or more of the statements of testimony con- 
 tained in the indictment, still, it is not necessary that they 
 should be proved in the precise words alleged; it is sufficient 
 if they are, substantially, proved in language and effect as 
 therein stated. Peoj^le vs. Waryier, 5 Wen., 271j; 3 Greenl. 
 Evi., § 193; Taylor vs. State, 48 Ala., 157. 
 
 § 7. No Reasonable Grounds of Belief. — The jury are in- 
 structed, that while false swearing, under an honest belief that 
 the statements are true, is not jterjury, still, the jury are to 
 determine, from all the evidence in the case, whether such 
 honest belief existed; and if the jury believe, from the evi- 
 dence, beyond a reasonable doubt, that the defendant swore
 
 758 PEKJUKY. 
 
 falsely, as cliarged in the indictment, and that he had no rea- 
 sonable grounds for believing his statements to be true, and did 
 not honestly and in good faith believe them to be true, then 
 he is guilty of perjury. Johnson vs. The Peojjle, etc., 94 111., 
 505; 3 Greenl. Evi., § 200. 
 
 § 8. Testimony Must be Willfully and Knowingly False. — That 
 although the jury may believe, from the evidence, that the 
 defendant testified as stated in said indictment, and that that 
 testimony was false, still, if the jury have a reasonable doubt 
 whether the defendant, knowingly and willfully, testified 
 falsely in giving such testimony, the jury should find the 
 defendant not guilty. 
 
 The court further instructs the jury, that to warrant a verdict 
 of guilty in this case the prosecution must establish, by evi- 
 dence, to the satisfaction of the jury, beyond a reasonable 
 doubt, not only that the defendant testified on the occasion 
 referred to, that, etc., as charged in the indictment, but also 
 tliat that testimony was false, and furthermore, that the de- 
 fendant knew it to be false, or had no good reason to believe 
 it to be true, at the time he testified. 
 
 § 9. Official Character of the Justice Must be Proved. — That 
 among the material averments in the indictment is the state- 
 ment that the defendant was sworn by R. L.; that the said ~R. 
 L. was a justice of the peace, having power and authority to 
 administer such oath; the averment that the said R. L. was 
 a justice of the peace, like the other averments in the indict- 
 ment, must be proved, by the evidence, beyond a reasonable 
 doubt, and although this may be proved by showing that he 
 was an acting justice of the peace in and for this county — if 
 it be a fact that he is so, still, this fact must be established by 
 proof; and it is not sufficiently proved, if the juiy find from 
 the evidence, that it is only shown that he acted as a justice 
 in the trial of the cause set out in the indictment. 
 
 § 10. That the Accused was Sworn ]\rust be Proved. — That to 
 authorize a conviction in this case it must appear, among 
 other things, that the defendant was sworn, as a witness, before 
 giving his alleged testimony ; and this must be proved, beyond
 
 PEKJTET. 759 
 
 a reasonable donbt; and if the jury entertain any reasonable 
 doubt as to whether the defendant was afRrmed instead of 
 being sworn, in the usual manner before testifying, the jury 
 should find the defendant not guilty. lUtesviaii vs. State, 4S 
 Ind., 473. 
 
 § 11. More Than One Witness Reqnired. — If the jury find 
 that the several witnesses who have testified for the prosecu- 
 tion {or the witnesses, A., B. and C), have each testified to 
 separate and distinct facts or circumstances, then such testi- 
 mony must be considered by the jury as the testimony of a 
 single witness upon each specific point testified to by them; 
 and if the jury further believe, from the evidence, that only 
 one of said witnesses has testified to facts tending to show the 
 falsity of the testimony, set forth in the indictment, and upon 
 which the perjury is assigned, then the prosecution has failed 
 to prove the falsity of such testimony as required by law, un- 
 less the jury further find, from the evidence, that the testi- 
 mony of such witness has been corroborated upon that point 
 by other facts or circumstances proved on the trial. State vs. 
 Heed, 57 Mo., 252 ; 2 Wharton Crim. Law, § 2276 ; State vs. 
 Eaijmond, 20 la., 582; Grusen vs. The State, 10 Ohio St. 
 258 ; Hendricks vs. State, 26 Ind., 493. 
 
 The jury are further instructed by the court, that the law 
 presumes the testimony of the defendant set out in the in- 
 dictment to be true and of equal value to the testimony of any 
 other one witness; and in order to convict the defendant of 
 perjury the ]ieople must satisfy the jury, beyond a reasonable 
 doubt, of its falsity, and that by the testimony of more than 
 one witness, or by the testimony of one witness and other 
 proofs tending to corroborate such witness; and unless the 
 falsity of the testimony alleged in the indictment has been es- 
 tablished by an amount of evidence greater than the testimony 
 of one witness bearing upon that point, the jury must find the 
 defendant not guilty, whatever may be their opinion regard- 
 ing his guilt or innocence. 
 
 § 12. Every Material Allegation Must be Proved. — That be- 
 fore the jury will be warranted in finding the verdict of guilty 
 in this case, they must be satisfied, beyond a reasonable doubt,
 
 760 PEKJUEY. 
 
 from tliG evidence introduced before tliem, that the defendant 
 was sworn as a witness bj R. L., on the trial of an action of 
 {?'ejylevln) pending before him, as an acting justice of the 
 peace of this county, wherein A. was plaintiff and B. was de- 
 fendant ; that the value of the propei'tj in question, in said 
 suit, did not exceed $ ; that upon such trial the defend- 
 ant testified upon oath that he bought the horse of one A. B., 
 and paid SlOO in cash for it at the time; that whether he had 
 so bought the horse was a material question on that trial; that 
 such testimony was false, and that the defendant knew it to 
 be false at the time he so testified; and, unless the prosecution 
 have proved each and all of the matters above enumerated, 
 beyond a reasonable doubt, by evidence introduced before the 
 jury, the jury must find the defendant not guilty. 2 "Wharton 
 Grim. Law, § 2211; Pankey vs. State^ 1 Scam., 80; Montgovi- 
 ery vs. State, 10 Ohio, 220; State vs. Fassett, 16 Conn., 457. 
 
 § 13. Materiality Must be Shown. — The jury are further 
 instructed, that among the material averments in the indict- 
 ment is the statement, that whether the said defendant had 
 bought the horse therein referred to of A. B. and paid $100 
 for it in cash at the time, became a material question on said 
 trial; and to warrant a conviction in this case, the fact of such 
 materiality must be established to the satisfaction of the jury, 
 beyond a reasonable doubt; and if, after a careful considera- 
 tion of all the evidence, and in view of the principles of law 
 given you in these instructions, you entertain any reasonable 
 doubts as to whether the fact above stated did become material 
 on said trial, you should find the defendant not guilty. 2 
 Bishop Grim. Law, § 994; Bullock vs. Koon, 4 Wen., 531; 
 State vs. Thrift, 30 Ind., 211 ; Wood vs. People, 59 JST. Y. 117 ; 
 State vs. Aikens, 32 la., 403. 
 
 § 14. Test of ]\[ateriality. — That the true test of whether 
 the alleged testimony of the defendant was material on said 
 trial is this: Was it of such a character that, if true, it should 
 properly influence the action of the justice or the jury on the 
 trial in any matter affecting the rights of the ])arties to that 
 suit; and if the jury find, from the evidence, that the alleged 
 testimony could not properly influence the action of the jus-
 
 PEKJUKT. 701 
 
 tice, or jury, in any matter affecting the riglits of tlie parties 
 to the suit, then it is wholly immaterial whether it was true or 
 false, and the jury should find the defendant not guilty. 2 
 Bishop Crim. Law, § 994; State vs,. Keenan^ 8 Rich., 456; State 
 vs. Shupe, 16 la., 36; State vs. Lavalley, 9 Mo., 824; 3 Greenl. 
 Ev., § 195.
 
 CHAPTER LXI. 
 RAPE. 
 
 Sec. 1. The offense defined — Consent obtained bj- threats. 
 
 2 . Submission through fear. 
 
 3. Child under lawful age. 
 
 4. Complaining to others. 
 6. Consent given. 
 
 6. Prosecutrix bound to resist. 
 
 7. Power of resistance not overcome by force or fear. 
 
 8. Contact of sexual organs necessary — Penetration. 
 
 9. Character of the prosecutrix may be shown. 
 
 10. Character of the. prosecutrix no defense. 
 
 11. No outcry made. 
 
 12. What is an assault with intent. 
 
 13. The reasonable doubt as to the intent. 
 
 RAPE. 
 
 § 1. Rape Defined — Consent Obtained by Threats. — Tlie court 
 instructs tlie jury, that rape is the carnal knowledge of a fe- 
 male, forcibly and against her will, and where threats of per- 
 sonal violence are made to overcome her will, and she believes 
 that her person is in danger from such threats, and is induced 
 thereby to submit to the will of the person making such 
 threats, and he has sexual connection with her, then the law 
 considers such carnal knowledge as having been forcibly had, 
 and against the will of the female. 
 
 § 2. Submission through Fear. — The court instructs the jury, 
 that where a female submits to sexual intercourse tlirouo:h 
 fear of personal violence, and to avoid the infliction of great 
 personal injury upon herself, then such carnal intercourse is 
 indictable and punishable as a rape. 
 
 If the jury believe, from the evidence, beyond a reasonable 
 doubt, that the defendant had sexual intercourse with the said 
 A. B. against her will, then the defendant may be guilty of 
 the crime of rape, although the said A. B. did not make the 
 
 <762)
 
 RAPE. 763 
 
 utmost physical resistance of which she was capable to prevent 
 such intercourse, provided the jury further hcHeve, from the 
 evidence, beyond a reasonable doubt, that the defendant 
 threatened to use force and to do her great bodily injury in 
 case she did not submit, and that she did submit to such sex- 
 ual intercourse through fear that the defendant would do her 
 great bodily injury. State vs. Rut\ 21 Kans., 583. 
 
 If you believe, from the evidence in this case, that an act 
 of sexual intercourse did take place between the defendant 
 and the prosecutrix, as averred in the indictment, then, the 
 question as to whether or not she did voluntarily consent to such 
 act, is a question of fact for you to determine, from the evi- 
 dence in the case. The defendant insists that she did volun 
 tarily consent thereto, and that he used no force or coercion 
 of any kind to compel such consent, but that she yielded to 
 his desires upon his request alone. While the prosecution 
 insists that she did not voluntarily consent, but that she resisted 
 to the full extent of her ability, and only yielded when her 
 will was overpowered, and that if she finally submitted to her 
 fate it was against her will, and for fear of more serious con- 
 sequences. You are to say from the evidence, which, if 
 either, is right, and, if, after giving due weight to all the evi- 
 dence, you find the prosecutrix did voluntarily consent to such 
 act of intercourse, and not under coercion, you should acquit; 
 but if you find, beyond a reasonable doubt, that the act was 
 by force, and against her will, and find the other facts averred 
 in the indictment established beyond a reasonable doubt, you 
 should convict. Anderson vs. The State^ 4 N. E. K, 63; 104 
 Ind., 467. 
 
 § 3. Child unfler Lawful A,2:e. — By the laws of this state a 
 female child under the age of years is incapable of giv- 
 ing legal consent to an act of sexual intercourse, so that every 
 act of carnal connection with such a child will constitute the 
 crime of rape, whether with or without the consent of such 
 child; and in this case, if you believe, from the evidence, be- 
 yond a reasonable doubt, that the defendant had carnal con- 
 nection with the said A. B., and that at the time she was 
 
 under the age of years, then the defendant is guilty of 
 
 rape and the jury should so find.
 
 TCtt KAFE. 
 
 § 4. Complaining to Others. — If tlie jury believe, from llie 
 evidence, tliut the prosecuting witness told her {hushand) of 
 the assault, alleg d to have been made on her, at the earliest 
 opportunity, then that is a corroborating circumstance tend- 
 ing to sustain the truth of her statements. /Stale vs. Niles^ 
 47 Yt., 82 ; Pefferling vs. State, 40 Texas, 486. 
 
 That in this class of cases the main facts can nsnally be 
 proved only by tlie woman on whom the assault is committed, 
 and by the proof of corroborating circumstances. 
 
 If the jury believe, from the evidence, that at the time the 
 offense is alleged to have been committed, the prosecuting 
 witness made nu outcry, and did not immediately complain of 
 the offense to others, but concealed it for a considerable length 
 of time afterwards, then the jury should take this circumstance 
 into consideration with all the other evidence, in determining 
 the question of the guilt or innocence of the accused, and 
 whether a rape was in fact committed or not. 
 
 Though the jury may believe, from the evidence, that tlie 
 prosecuting witness did not tell her {mother^ or others of the 
 alleged outrage upon her until, etc., still, if the jury believe, 
 from the evidence, beyond a reasonable doubt, that the defend- 
 ant was guilty of the crime charged in the indictment, and, if 
 the jury further believe, from the evidence, that at the time of 
 the alleged outrage the defendant threatened to take her life if 
 she ever told of what had occurred, and she was afraid she 
 would lose her life, or suffer some great bodily harm, if she 
 should tell of the injuries complained of, then these facts 
 would excuse the prosecuting witness from communicating the 
 knowledge of sucli injury to others. Turner vs. The People, 
 33 Mich., 3G3. 
 
 § 5. Consent Given. — If the jury believe, from the evidence, 
 that the prosecuting witness, L. X., w^as a female above the 
 age of {teii) years at the time of the alleged offense, then she 
 was capable in law of giving her consent to any carnal knowl- 
 edge of her by the defendant; and before you can find tlie 
 accused guilty, you must be satisfied, from the evidence, be- 
 yond a reasonable doubt, that he had carnal knowledge of the 
 said L. X. forcibly and against her will. 
 
 To authorize a conviction for rape the jury must believe,
 
 KAPE. 765 
 
 from tlic evidence, beyond a reasonaLle doubt, that the de. 
 fendant had carnal connection with the prosecuting witness 
 against her will, and that she did not yield her consent during 
 any part of the act. To constitute the crime of rape the will 
 of the female alleged to have been outraged, must have been 
 overcome either by force, violence, or fear. If she consents 
 in the least during any part of the act, there is not such an 
 opposing will as the law requires to convict on the charge of 
 rape. Broion vs. The People^ 36 Mich., 203 ; XJlrich vs. The 
 People, 39 Mich., 245. 
 
 § 6. Prosecutrix Bound to Resist. — If the jury believe, from 
 the evidence, that at the time the rape is alleged to hav.e been 
 committed, the prosecuting witness had it in her power to 
 resist the defendant, and prevent the offense by kicking, strik- 
 ing and biting him, or by any other mode calculated to repel 
 his attack, and that she failed to make all the resistance then 
 in her power to make, then this is a circumstance that the jury 
 should take into consideration with all the other evidence in 
 the case, and as tending to show that no rape was committed. 
 Anderson vs. The State, 104 Ind.,46T; Matthews vs. The State. 
 19 Neb., 330. 
 
 If the jnry believe, from the evidence, that the force and 
 resistance used by the prosecutrix, and relied upon by tlie 
 prosecution for a conviction, at the time of the commission of 
 the alleged raj^e, were so feebly exerted by her as to have in- 
 vited rather than discournged the advances of the accused, 
 they may well doubt whether the rape was committed, and, if 
 they do so doubt, tliey should iind the defendant not guilty. 
 People vs. Morrison, 1 Parker Crim. li., 625 ; People vs. 
 Allot, 19 Wend., 192; Hull vs. State, 22 Wis., 580; Croghan 
 vs. State, 22 Wis., 444; State vs. Cross, 12 la., m. 
 
 § 7. Power of Resistance not Overcome by Force or Fear. — If 
 
 the jury believe, from the evidence, that the prosecutrix, at 
 the time of the alleged offense, was a strong, robust woman, 
 and that the defendant made no threats of personal violence, 
 and in no manner deprived her of her strength, then the jury 
 may well doubt whether the crime of rape was committed ; 
 and if they do so doubt, they cannot convict the defendant of 
 that crime.
 
 766 EAPE. 
 
 That it is a -u-ell settled principle of law that when the 
 accuser and the accused are both in the possession of heahh 
 and strength, and of the ordinary amount of physical and 
 mental power, and in circumstances to fully exercise that 
 power, the perpetration of the crime of rape is of difficult, if 
 not impossible, occurrence. 
 
 § 8. Contact of Sexnal Organs Necessary — Penetration. — The 
 court further instructs the jury, that in a prosecution for rape 
 upon a female above the age of {ten) years, where the people 
 rely exclusively upon proof that threats and intimidation are 
 employed to gain the consent of the female upon whom the 
 rape is charged, such threats and intimidation, together with 
 actual contact of the sexual organs, must be proved, beyond a 
 reasonable doubt, before the accused can be convicted of rape. 
 
 § 9. Character of the Woman May be Shown. — The jury are 
 instructed, that in prosecutions of this kind the character of 
 the woman may be called in question for the purpose of atfect- 
 ing her credibility as a witness, and as a circumstance affecting 
 the probability of the act of intercourse being voluntary or 
 against her will, and if the jury believe, from the evidence, 
 that the prosecuting witness is a woman of bad fame or evil 
 repute, they may take this fact into consideration for that 
 purpose, together with all the other evidence in the case, in 
 determining the amount of credit to which her testimony may 
 be entitled. Anderson vs. The State, 4 N. E. Eep., 63. 
 
 § 10. Character of Prosecntrix no Defense. — All pei'sons are 
 entitled to equal protection before the law; and it matters not 
 what may have been the previous character of a woman, she 
 cannot be assaulted with impunity; and where the law does 
 not discriminate, 3'ou, as a jury, cannot; hence an assault upon 
 any woman with the intent to commit a rape is a crime, and 
 the person making the assault is amenable to the law. 
 
 And in this case, if you believe, from the evidence, that de- 
 fendant made an assault upon A. B., and that said assault was 
 committed with intent to commit a rape as charged in the 
 indictment, you should find the defendant guilty. Peffer- 
 Ihig vs. The State, 50 Texas, 486.
 
 EAPE. 767 
 
 Evidence has been introduced as to the moral character of 
 the prosecuting witness, and* as to her reputation for chastity 
 and virtue. You are not to understand from this that a rape 
 cannot be committed upon a woman of bad moral character. 
 A woman may be a common prostitute and may still be the 
 victim of a rape. This evidence has been introduced only for 
 the purpose of affecting her credibility as a witness, and as a 
 circumstance affecting the probability of the act of intercourse 
 being voluntary or against her will, upon the theory that a 
 person of bad moral character is less likely to speak the truth 
 as a witness, than one of good moral character, and that a 
 woman who is chaste and virtuous will be less likely to consent 
 to an act of illicit carnal intercourse, than one who is unchaste. 
 So that whatever conviction this evidence may produce in 
 your minds as to whether she is of good or bad moral charac 
 ter, or as to whether she is chaste or unchaste, you will treat 
 it as a circumstance affecting her credibility to aid you in 
 determining whether her story is true or false, and the act of 
 intercourse voluntary or against her will. Anderson vs. State, 
 4N. E.R, 63; 104 Ind. 467. 
 
 § 11. No Outcry Made. — If the jury believe, from the evi- 
 dence, that at the time of the alleged rape other people were 
 at the same time in the same house, who might easily have 
 heard her had she made any outcry, and that she in fact made no 
 outcry at the time defendant was attempting to have connec- 
 tion with her, these facts will tend to raise a presumption that 
 no rape was committed upon her at the time. State vs. 
 Eagerman, 47 la. 151. 
 
 § 12. Assault with Intent to Commit a Rape. — The jury 
 should convict the defendant of an assault with intent to com- 
 mit a rape, if they believe, from the evidence, beyond a rea- 
 sonable doubt, that at the time in question he committed an 
 assault on the prosecutrix for the purpose of having carnal 
 intercourse with her, and that in making the assault he in- 
 tended to use whatever force might be necessary to overcome 
 the prosecutrix and accomplish his purpose. State vs. 
 Cannada, 68 la., 397; Krum vs. State, 19 Neb., 728. 
 
 It must be shown in this case by the evidence, beyond a
 
 768 RAPE. 
 
 reasonable doubt, not only that the defendant committed an 
 assault upon the female, but that he did so with intent to 
 compel her, by force and against her will, to have sexual 
 intercourse with him notwithstanding any resistance she might 
 make. State vs. McDevitt, 69 la., 549; State vs. Kendall, 
 34 K W. Eep., 843. 
 
 In order to convict the defendant of an assault with an intent 
 to commit a rape, the jury must be satisfied beyond a reason- 
 able doubt, from the evidence, that the defendant assaulted 
 the prosecuting witness with the intent at the time to over- 
 come any resistance which might be offered by her. And so 
 although the jury may believe that the defendant, inflamed 
 with passion, went to the bed of the prosecuting witness with 
 intent to have carnal connection with her, still, if j-ou have any 
 reasonable doubt, from the evidence, as to whether he 
 intended to accom]ilish liis purpose by force and to overcome 
 by violence or fear any force that might be offered to resist 
 him, or whether he went with the design only to accomplish his 
 purpose if he could without force or threats, then the act 
 would only amount to an assault or assault and battery, but 
 tlie "defendant cannot be convicted of an assault with an 
 intent to commit a rape. People vs. Lynch, 2'3 JMich., 274. 
 
 If you are satisfied beyond a reasonable doubt, from the 
 evidence, that the defendant took hold of the prosecuting wit- 
 ness with intent to have carnal intercourse with her against 
 her will, and with an intent to accomplish his object at all 
 events by his strength and power, or by threats of violence, 
 against any resistance which she might offer, then he v;as 
 guilty of an assault with intent to commit a rape, whether 
 he succeeded in his purpose or not. People vs. Lynch, 29 
 Mich., 274. 
 
 § 13. The Intent Must be Slio\\-n Beyond a Reasonable Donl)t. — 
 
 Thejury arefurtlier instructed, as a matter of law, that the intent 
 18, in this case, the essence of the offense charged, and, although 
 you may find, from the evidence, that the defendant did com- 
 mit an assault upon the prosecutrix for the purpose of having 
 carnal intercourse with her, still, if, after considering all the 
 evidence in the case, you are not satisfied be3'ond a reasonable 
 doubt, that, at the time of committing the assault, he intended
 
 KAPE. 7G9 
 
 to compel lier by force and a^^ainst her will, to have sexual 
 intercourse with hira, notwithstanding any resistance she 
 might make, then it will be your duty, under the law, to 
 acquit the defendant. State vs. Cannada, 68 la., 397; Kriim 
 vs. The State, 19 Neb., 728; State vs. Kendall, 34 N. W. Eep., 
 843. 
 
 49
 
 CHAPTER LXII. 
 EOBBERY. 
 
 Sec. 1. Robbery defined. 
 
 2. Facts constituting' robbery. 
 
 3. The taking must be by force or fear. 
 
 4. Property must be proved as charged. 
 
 5. The verdict may be for larceny. 
 
 6. What is meant by taking from the person, etc. — People's in- 
 
 structions in State vs. Calhoun, Iowa. 
 
 KOBBEKT. 
 
 1. Robbery Defined. — The court instructs the Jury, that rob- 
 bery is the felonious and violent taking of money, goods, or 
 other valuable thing from the person of another, by force or 
 intimidation. 
 
 The court instructs the jury, as a matter of law, that robbery 
 is the felonious and violent taking of money, goods or other 
 valuable thing, from the person of another by force or in- 
 timidation. Every person guilty of robbery, shall be impris- 
 oned in the penitentiary not less than one year nor more than 
 fourteen years ; or if he is armed with a dangerous weapon, 
 with intent, if resisted, to kill or maim such person, or being 
 so armed, he wounds or strikes him, or if he has any confed- 
 erate present so armed, to aid or abet him, he may be impris- 
 oned for any term of years or for life. (Illinois.) 
 
 § 2. Facts Constituting; Robbery. — If the jury believe, from 
 the evidence, beyond a reasonable doubt, that some time about 
 the day of, etc., A. B, was at the saloon of E. M., in this 
 county, and that he then had in his possession any of the treasury 
 notes or bank bills described in the indictment in this case, and 
 that such notes or bills were genuine, and of some value, and 
 furtlier, tliat one C. D. requested the said A. B. to loan him 
 some money, and that thereupon the said A. B. took out his 
 said treasury notes or bank bills for the purpose of making 
 
 (770)
 
 KOI513ERT. 771 
 
 siicli loan, and further, that the said defendant then grubbed 
 the said money and forcibly took the same from the jierson 
 of the said A. B., and then ran away with said money, with 
 the intention of stealing the same, this would constitute rob- 
 bery on the part of the defendant, and the jury should find 
 him guilty, in manner and form as charged in the indictment. 
 Roscoe's Crim. Evi., 893. 
 
 The jury are instructed, that to constitute the crime of rob- 
 bery, it is not necessary that any force be used to obtain 
 possession of the property. It is sufficient if such possession 
 is obtained from the person of the owner, against his will, by 
 threats or menaces of personal violence against him. Shinn 
 vs. State, 64 Ind., 13. 
 
 To constitute the crime of robbery it is not necessary that 
 the property should be actually taken from the person of the 
 owner; if it is in his personal custody, and is taken in hig 
 presence, without his consent, by force, or by putting him in 
 fear, it is sufficient to maintain an indictment for robbery. 
 Roscoe's Crim. Evi., 895 ; State vs. Calhoun, 34 N. W. Eep., 
 194; 2 Bish. C. L., § 975; Whart. Crim. Law, § 1696. 
 
 § 3. Taking Must be by Force or Fear. — To justify a verdict 
 of guilty of robbery, in manner and form as charged in the 
 indictment, it must appear, from the evidence, to the satisfac- 
 tion of the jury, beyond a reasonable doubt, that some one or 
 more of the treasury notes, or bank bills, described in the 
 indictment, were taken from the person or from the immedi- 
 ate presence and possession of the said A. B. by the defendant 
 by force, or by putting him in fear ; and unless this has been 
 proved, beyond a reasonable doubt, the jury should acquit the 
 defendant from the charge of robbery, 
 
 § 4. Property Must be Proved, as Charged. — In order to 
 convict the defendant on the charge of robbery, the people 
 must prove, beyond a reasonable doubt, that the bills or treas- 
 ury notes mentioned in the indictment, or some of them, 
 were feloniously, and against the will of the faid A. B., taken 
 from his person or from his immediate presence and posses- 
 sion, in manner and form as charged in the indictment ; and 
 unless this has been so proved, the jury should find the 
 defendant not guilty of the charge of robbery.
 
 772 EOBBEKT. 
 
 § 5. Vordiot may be for Larceny. — Tf, in view of all the evi- 
 dence in this case, the jnry entertain any reasonable donbt as 
 to whether the defendant obtained the goods in question from 
 the possession of the plaintiff by force or intimidation, but do 
 believe, from the evidence, beyond a reasonable doubt, that the 
 defendant feloniously took the property in question from the 
 possession of tlie plaintiff by stealth or by fraud, with intent 
 to steal the same, in manner and form as charged in the indict- 
 ment, then the jury may find the defendant guilty of the crime 
 of larceny. 
 
 Note. — Statement. The defendant bound the prosecuting witness and 
 putting her in fear by this violence be extorted from her information of the 
 place where she kept her money and watch in another room of the house. 
 Leaving her bound he went into that room and took the money. The 
 Supreme Court of Iowa held that the money was taken from her person . in 
 the sense of the words used in the statute. Citing 2 Bish. Crim. Law, § 975; 
 Whart Crim. Law, § 1696. The following instructions for the State were 
 sustained. (State vs. Calhoun, 4 N. W. Rep. 194.) 
 
 § 6. Wliat is Meant by Taking from tbe Person. — It is provided 
 by our statutes that if any person with force or violence, or 
 by putting in fear, steal and take from the person of another 
 any proi^erty that is subject of larceny, he is guilty of robbery. 
 
 Under this statutory provision, it is not essential that the 
 stealing and taking, if any, was literall^^ from the person, or, 
 in other words, that the property, if any, was on, or at- 
 tached to, or touching, the literal physical person of the party 
 alleged to have been robbed, but it is sufficient if the stealing 
 and taking, if any, was done in the immediate presence of such 
 person, and while the pro)3erty was under the control and in 
 the custody of such party. 
 
 If, therefore, you find from the evidence, beyond a reason- 
 able doubt, that the defendant, in this county and state, at a 
 time within three years next preceding the finding of the 
 indictment in this case, did steal and take from the immedi- 
 ate presence of the said N. B., named in the indictment, the prop- 
 erty named in the indictment, or some part of it, and that 
 the stealing and taking, if any, was accomplished with force or 
 violence towards said N. B., or by putting her in fear, and 
 you further so find that the ]iroperty, if any, thus stolen, was 
 at the time owned b}', or in the possession of, said N. B,, and
 
 ROBBERY. 773 
 
 was of some value, then and in sueli case you should return 
 a verdict of guilty of robbery; but if you do not so find as to 
 these several matters, you cannot find the defendant guilty of 
 robbery. 
 
 It is not necessary, in order to constitute a stealing and car- 
 rying away in the immediate presence of tlie said N. B., that 
 it should have deen done, if done, in her immediate view or 
 where she could see it done. And if you find, from the evi- 
 dence, beyond a reasonable doubt, that the defendant made a 
 violent assault u])on said N. B. by choking her and causing 
 her to fall upon the floor of one of the rooms or apartments 
 of her house, and then tied her hands and feet for the purpose 
 and with the intention of stealing some money or property in 
 the house, and you further so find that she, through fear of 
 personal violence, told defendant where her money or watch 
 was in an adjoining room or rooms, and you further so find 
 that thereupon defendant passed through a door or doors into 
 such room or rooms, and did there, within hearing of said N. 
 B., take and carry away from said room or rooms the property 
 described in the indictment, or some part thereof, and 3'^ou 
 further so find that such property was under her immediate 
 control, and that such taking, if any, was against the will of 
 the said N. B., and was without any right or claim of right of 
 defendant in said property, and with the intent to permanently 
 deprive her thereof, then, and in such case, there would be 
 a sufficient stealing and takiug from the immediate presence 
 of the said ]^. B., wnthin the meaning of the law. 
 
 It is charged in the indictment that, at the time of the 
 alleged robbery, the defendant was armed with a dangerous 
 M-eapon, with intent, if resisted, to kill or maim the said 'N. 
 B., and, being so armed, did wound said N. B. If you find 
 the defendant guilty of robbery, you will determine whether 
 this charge in the indictment is sustained. The only evi- 
 dence relied upon by the state, as tending to show that 
 defendant was armed with a deadly weapon, is the evi- 
 dence tending to show that, at the time of the alleged robbery, 
 the defendant had with him the piece of cord or rope intro- 
 duced in evidence. It is for you to say from the evidence, 
 whether he did have and used such cord or rope; and, if he 
 did, whether the same was a dangerous weapon; and, if it was,
 
 774 KOBBEKY. 
 
 whether he intended bj the use of it (if he did use it) if re- 
 sisted, to kill or maim said ]^. B. therewith or did wound her. 
 A dangerous weajion is one which, from the use made of it 
 at the time, is likely to produce death, or do great bodily 
 harm; and unless you find that said cord or rope was of such 
 a character you cannot hnd that the defendant was armed 
 with a dangerous weapon. If it was only calculated to pro- 
 duce, from the use of it (if used), a slight injury upon the 
 person of the said N. B., then it would not be a dangerous 
 weapon wnthin the meaning of the law.
 
 CHAPTER LXIII. 
 
 MISCELLANEOUS CRIMINAL INSTRUCTIONS. 
 
 Sec. 1. Attempt to commit a crime. 
 
 2. Bigamj-. 
 
 3. Concealing' stolen property. 
 
 4. Counterfeiting. 
 
 5. False pretenses. 
 
 6. Forgery. 
 
 7. Habitual criminal. 
 
 8. Taking property without consent of owner. 
 
 9. Seduction. 
 
 § 1. Attempt to Commit a Criminal Offense. — The court in- 
 structs the jui-y, as a matter of Jaw, that whoever attempts to 
 commit any offense prohibited by law, and does any act towards 
 it but fails, or is intercepted or prevented in its execution, 
 where no express provision is made by law for the punishment 
 of such attempt, shall be punished, when the offense thus at- 
 tempted is a felony, by imprisonment in the penitentiary not 
 less than one, nor more than five years; in all other cases, by 
 fine not exceeding three hundred dollars, or by confinement in 
 the county jail not exceeding six months. 
 
 § 2. Bigamy — Illinois Statute. — The conrt instructs the jury, 
 as a matter of law, that whoever, having a former husband or 
 wife living, marries another person, or continues to cohabit 
 with such second husband or wife in this state, shall be deemed 
 guilty of bigamy, and be imprisoned in the penitentiary not 
 less than one nor more than five years, and fined not exceeding 
 $1,000. Pi'ovided^ nothing herein contained shall extend to 
 any person whose husband or wife shall have been continually 
 absent from such person for tlie space of five years together, 
 prior to said second marriage, and he or slie not knowing such 
 husband or wife to be living within that time. Also, nothing 
 herein contained shall extend to any person who is, or shall 
 be at the time of such second marriage, divorced by lawful 
 
 (775)
 
 Y76 MISCELLANEOUS INSTKUCTIOKS. 
 
 authority from the bands of such former marriage, or to any 
 person where the former marriage hath been, by lawful 
 authority, declared void. 
 
 It shall not be necessary to prove either of the marriages by 
 the register or certificate thereof, or other record evidence; 
 but the same may be proved by such evidence as is admissible 
 to prove a marriage in other cases. The offense may be al- 
 leged to have been committed, and the trial may take place in 
 the county where cohabitation shall have occurred. 
 
 § 3. Concealing Stolen Property. — The court instructs the 
 jury, as a matter of law, that every person, who, for his own 
 gain, or to prevent the owner from again possessing his prop- 
 erty, shall buy, receive or aid in concealing stolen goods, or 
 anything the stealing of which is declared to be larceny, or 
 property obtained by robbery or burglary, knowing the same 
 to have been so obtained, shall be imprisoned in the peniten- 
 tiary not less than one nor more than ten years, or if such 
 goods or other property or thing does not exceed the value of 
 fifteen dollars, he shall be fined not exceeding one thousand 
 dollars and confined in the county jail not exceeding one year. 
 
 § 4, Counterfeiting — Illinois Statnte. — The court instructs the 
 jury, as a matter of law, that whoever shall make, pass, utter 
 or publish, with an intention to defraud any other person, or 
 with like intention shall attempt to pass, utter or publish, or 
 shall have in his possession, with like intent to pass, utter 
 or publish, any fictitious bill, note or check purporting to be 
 the bill, note or check, or other instrument of writing for 
 payment of money or property of some bank, corporation, 
 co-partnership or individual, when, in fact, there shall be no 
 such bank, corporation, co-partnership or individual in exist- 
 ence, the said person, knowing the said bill, note, check or 
 instrument of writing for the payment of money or ]>roperty 
 to be fictitious, shall be imprisoned in the penitentiary not 
 less than one nor more than twenty years. 
 
 § 5. False Pretenses — Illinois. — The court instructs the jury, 
 as a matter of law, that whoever, with intent to cheat or de- 
 fraud another, designedly by color of any false token or writ-
 
 MISCELLANEOUS INSTKUCTIONS. 777 
 
 ing, or bj any false pretense, obtains the signature of any per- 
 son to any written instrument, or obtain from any person any 
 money, personal property or other valuable thing, shall be 
 fined in any sum not exceeding $2,000, and imprisoned not 
 exceeding one year, and shall be sentenced to restore the prop- 
 erty so fraudulently obtained, if it can be restored. No per- 
 son indicted for such offense, shall be acquitted, for the reason 
 that the facts set forth in the indictment, or appearing in evi- 
 dence, may amount to a larceny or other felony; nor shall it 
 be deemed essential to a conviction, that the property in the 
 goods or things so obtained shall pass with the possession to 
 the person so obtaining it. 
 
 § 6. Forgery — Illinois Statute. — The court instructs the jury, 
 as a matter of law, that every person who shall falsely make, 
 alter, forge or counterfeit any record or other authentic mat- 
 ter of a public nature, or any charter, letters patent, deed, 
 lease, indenture, writing obligatory, will, testament, codicil, 
 annuity, bond, covenant, post note, check, draft, bill of ex- 
 change, contract, promissory note, due bill for the payment of 
 money or property, receipt for money or property, power of 
 attorney, any auditor's warrant for the payment of money at 
 the treasury, county order, or any accountable i-eceipt, or an}'- 
 order or warrant, or request for the payment of money or the 
 delivery of goods or chattels of any kind, or for the delivery 
 of any instrument of writing or acquittance, release or receipt 
 for money or goods (or any acquittance, release or discharge of 
 any debt, account, action, suit, demand or other thing), real or 
 personal, or any transfer or assurance of money, stock, goods, 
 chattels, or other property whatever, or any letter of attorney 
 or other power to receive money, or to receive or transfer 
 stock or annuities, or to let, lease, dispose of, alien or 
 convey any goods or chattels, lands or tenements, or other 
 estate, real or personal, or any acceptance or indorsement of 
 any bill of exchange, promissory note, draft or order, or assign- 
 ment of any bond, writing obligatory, or promissory note for 
 money or other property, or any ticket or pass for the passage 
 of any person upon any raih-oad or other conveyance, or for 
 the admission of any person to any entertainment for which a 
 consideration is required, or any other written instrument of
 
 778 MISCELLANEOUS INSTRUCTIONS. 
 
 anotlier, or purporting to be sucli, bj which any pecim'arj de- 
 mand or obliijation, or any right in any property is, or pur- 
 ports to be, created, increased, conveyed, transferred, dimin- 
 ished or destroyed, or shall counterfeit or forge the seal or 
 handwriting of another, with intent to damage or defraud any 
 person, body politic or corporate, whether the said person, 
 body politic or corporate, reside in or belong to this state or 
 not, or shall utter, publish, pass or attempt to pass as true 
 and genuine, or caused to be uttered, published, passed or at- 
 tempted to be passed as true and genuine, any of the above 
 named false, altered, forged or counterfeited matters, as above 
 specified and described, knowing the same to be false, altered, 
 forged or counterfeited, with intent to prejudice, damage or 
 defraud any person, body politic or corporate, whether the 
 said person, body corporate or politic, reside in this state or 
 not, every perton so offending shall be deemed guilty of 
 forgery, and shall be imprisoned in the penitentiary, etc. 
 
 § 7. Habitual Criminals. — Illinois Statute. — The court in- 
 structs the jury, as a matter of law, that whenever any person 
 having been convicted of either of the crimes of burglary, 
 grand larceny, horse-stealing, robbery, forgery or counterfeit- 
 ing, shall thereafter be convicted of any one of such crimes, 
 committed after such first conviction, the punishment shall be 
 imprisonment in the penitentiary for the full term provided 
 by law for such crime at the time of such last conviction there- 
 for ; and whenever any such person, having been so convicted 
 the second time, as above provided, shall be again convicted of 
 any of said crimes, committed after said second conviction, the 
 punishment shall be imprisonment in the penitentiary for a 
 period not less than fifteen 3'ears. Provided, that such former 
 conviction or convictions, and judgment or judgments, shall be 
 set forth in apt words in the indictment. 
 
 § 8. Taking Property without Consent of the Owner. — The 
 
 court instructs the jury, as a matter of law, that, in the lan- 
 guage of the statute, whoever willfully and maliciously takes, 
 drives, rides or uses any horse, ox or other draught animal, or 
 takes or uses any vehicle or boat, the ]iro])erty of another, 
 without the consent of the owner or person having legal cus-
 
 MISCELLANEOUS INSTRUCTIONS. 779 
 
 tody, care and control of the same, shall be fined not exceed- 
 ing three hundred dollars, or be confined in the county jail 
 not exceeding one year. The provisions of this section shall 
 not apply to any case of taking the property of another with 
 intent to steal the same. 
 
 § 7. Seiliiction. — The jury are instructed that illicit inter- 
 course alone does not constitute the crime of seduction. To 
 constitute this offense it must appear from the evidence, be- 
 yond a reasonable doubt, that the complaining witness yielded 
 to some sufficient promise or inducement held out to her by 
 the defendant and had been thereby drawn aside from the 
 path of virtue which previous to that time she had been 
 honestly pursuing. People vs. ClarJc, 33 Mich., 112. 
 
 If an unmarried man by his visits and attentions to an 
 unmarried female gains her affections and confidence and 
 importunes her to sexual intercourse with him, and she, 
 through her love for and confidence in him, yields to his 
 solicitations, this is seduction. Smith vs. Yaryan^ 69 Ind., 445. 
 
 Though the jury may believe, from the evidence, beyond 
 a reasonable doubt, that the defendant had sexual intercourse 
 with the complaining witness, still, if the jury further believe, 
 from the evidence, that he had such intercourse by force and 
 against the will of the said A. B., this would not constitute 
 the crime of seduction, and the jury should acquit the defend- 
 ant of that charge. State vs. Vewis, 48 la., 578.
 
 INDEX 
 
 [References are to pages.] 
 
 Acceptance of Work — Work, Labor and Services 615 
 
 Accessory Defined 711 
 
 Accessories — See Aiders and Ahhettnrs 655 
 
 Accidents. 
 
 Carrier not an Insurer against 116 
 
 Inevitable Accident, what 89 
 
 Injuries from 108 
 
 Injuries from Accident and Negligence 358, 366 
 
 Accomplice. 
 
 Testimony of 722 
 
 Inducements held out to, considered 722 
 
 Induced to Become by Promises 723 
 
 To be Acted upon with Caution 643, 722 
 
 Account Stated. 
 
 Need not be in Express Terms 51 
 
 Settlement Presumed to Include all Items 52 
 
 Can only be Opened for Fraud or Mistake 52 
 
 If Rendered and not Objected to, is Admitted 63 
 
 May be Opened for Fraud or Mistake 54 
 
 Receipt may be Contradicted 54 
 
 Receipt Prima Facie Correct 54 
 
 Must be Agreed to 61 
 
 Running Accounts 53 
 
 Settlement and Receipt Obtained by Duress 55, 56 
 
 Act op God. 
 
 What is Meant by 89 
 
 What is not 89 
 
 Common Carrier not Liable for Loss occasioned by, etc 88 
 
 Carrier must use Reasonable Care to avoid Injury by 90 
 
 Adverse Possession 186 
 
 Admissions 44 
 
 Verbal, How Weighed 44 
 
 All to be Considered toget her 46 
 
 Jury may Believe Part and Reject Part 44, 45 
 
 In Affidavit for Continuance 47, 48 
 
 When Party not Estopped by 46 
 
 Affidavit 47 
 
 For Continuance 47, 48 
 
 (781)
 
 782 INDEX. 
 
 Agency 57 
 
 Scope of General Instructions 57 
 
 Departure from Business of Principal 57 
 
 Agency must be Shown, When 58 
 
 Agency Presumed to Continue, When 58 
 
 Warranty by Agent 59 
 
 Public Officer a Special Agent 59 
 
 When Principal Liable for Torts 60 
 
 Goods Furnished Wife or Minor Child 60, 61 
 
 Wife living Sepani e without her Fault 62 
 
 Goods Furnished after Desertion by Wife 61, 62, 03 
 
 Agent Personally Liable, When 66 
 
 Notice to Agent, When Binding 66 
 
 Good Faith Required of Agent 66 
 
 Corporations only Act by Agent 67 
 
 Individual Members of Board Cannot Act 68 
 
 Hatification of Agent's Acts 63 
 
 Principal must Dissent from Unauthorized Acts 63 
 
 Must be with Full Knowledge 64, 65 
 
 Cannot be as to Part Only 65 
 
 Corporations may Ratify, etc 67 
 
 Permitting One to Hold Himself Out, etc 65 
 
 Aiders, Abettors, Etc 
 
 In Trespass 525 
 
 In Criminal Cases. 
 
 Accessory Defined 654 
 
 Aiding, Advising, etc.. May be by Words or Acts 655 
 
 Need not be by Express Agreement 671 
 
 Aiding or Abetting Assault 656 
 
 Aiding or Abetting Murder 656 
 
 Aiding or Abetting Bursrlary 657 
 
 Advising and Encouraging, not being Present 657 
 
 Present, not Aiding or Abetting 657 
 
 One or More May be Found Guilty 658 
 
 Alibi. 
 
 Legitimate Defense 648 
 
 Need not be Proved beyond a Reasonable Doubt 648 
 
 Burden of Proving 648 
 
 Doubt as to Defendant or Somebody Else 649 
 
 Altering Written Instruments 69 
 
 Material Alteration Renders Void 69, 70 
 
 Adopted by Maker 72 
 
 If not Material does not Render Void 70, 71 
 
 Presumed to be Made after Execution 72 
 
 No Presumption of Law as to when Made 72, 73 
 
 By Stranger 71 
 
 By Party not Authorized 71, 72
 
 INDEX. 783 
 
 ANAHcnisTs' Case Tnrtkuctions 7C9 
 
 Right to Arm for Defense, etc 725 
 
 " " Repel Attack 726 
 
 Animals 
 
 Trespass by Domestic Animals — Tresi)ass 548 
 
 Application op Payments 74 
 
 Debtor may direct, if he does not, Creditor may 74 
 
 When neither Debtor nor Creditor makes an Application, then 
 
 the Law w il 1 make it 75 
 
 Creditor has no Right to Disregard Directions of the Debtor. . 74 
 
 If Debtor makes Application, Creditor can not Cliange 74 
 
 The Law will apply ou the Debt first due 75 
 
 Assault. 
 
 Af^sault Defined 659 
 
 With Intent to Commit Rape 767 
 
 Damages for Assault 827 
 
 With I)itent to Commit Miuder. 
 
 Assault Defined 6")9 
 
 Must be such as would be Murder if Death had ensued 6r,0 
 
 Doubt as to Intent 660 
 
 Presume to Intend Natural Consequences, etc 660 
 
 Reckless or Wanton In j iiry 660 
 
 Facts showing Deliberation 661 
 
 Intent may be Proved by Circumstances 662 
 
 Intent must Appear 660 
 
 Intent to Kill must exist 661 
 
 Blow in Heat of Passion 663 
 
 Incapable of forming Intent from Drunkenness 663 
 
 Must be Proved beyond Reasonable Doubt 664 
 
 Every Material Allegation must be Proved 634 
 
 Verdict may be for Assault with Deadly Weapon 664 
 
 May be found guilty of an Assault with Intent to Commit man- 
 slaughter 664 
 
 With Deadly Weajwu, etc. 
 
 Assault with a Knife Charged 665 
 
 Proof of Instrument of the same kind 665 
 
 What C«nstitutes the Crime 665 
 
 What Necessary to Prove 666 
 
 No Crime without Intent 666 
 
 Presumption of Intent may be Rebutted 667 
 
 Deadly Weapon Defined 667 
 
 Assignee op Commercial Paper — Negotiable Instruments 431 
 
 Attacitment — Plea in A hatement to Affidavit 76 
 
 Non-resident of the State 76 
 
 About to Depart from the State 76, 77 
 
 What is not a Departing from the State 77 
 
 About to Depart from the State — how proved 77. 78 
 
 Intent to Depart — how shown 78, 79
 
 78i INDEX. 
 
 Attachment — Confhmed. 
 
 On the Ground of Fraud 79 
 
 The Fraud must be Proven by a Preponderance of the Evidence. 233 
 
 Good Faith Presumed 79 
 
 Attempt to Commit an Offense 775 
 
 Attorney. 
 
 Statement of, to Jury 49, 50 
 
 As Witness 50 
 
 Statements of Prosecuting Attorney 724 
 
 Baggage— Carriers of. 
 
 Bigamy 775 
 
 Bills op Lading. 
 
 Implies what Contract 100 
 
 Not Conclusive 100 
 
 Board of Trade Contracts. 
 
 Contracts Legal IGO, 135 
 
 Contracts Illegal 129 
 
 Margins 123 
 
 See Commission Merchants 120 
 
 Bonds. 
 
 Signing in Blank 80, 81, 82 
 
 Delivery 82 
 
 Building. 
 
 When Personal Property 485 
 
 Building Contracts. 
 
 Certificate of Architect 164, 165 
 
 Burden op Proof. 
 
 Is on the Party holding the A fErmative 42, 43 
 
 Breach of Contract 154 
 
 In Divorce 177 
 
 In Ejectment 180 
 
 Statute of Limitation 191 
 
 In Forcible Entry, etc 207 
 
 Under Dram Shop Act 273 
 
 In Malicious Prosecution 299 
 
 In Malpractice 308 
 
 Failure or Want of Consideration 448 
 
 Contesting Will 592 
 
 In Criminal Cases 718 
 
 Is on the People 719 
 
 Burglary. 
 
 What Constitutes 668 
 
 Prima Facie case of 668 
 
 Intent Charged must be Proved 669 
 
 What Constitutes a Breaking 669 
 
 What Constitutes an Entry , 669 
 
 May be found Guilty of Larceny 670
 
 INDEX. 785 
 
 BuRGL AKY— Con fin tied. 
 
 Proof of Identity. 
 
 Must be proved beyond Reasonable Doubt 735 
 
 Care and Diligence. 
 
 Ordinary Care and Diliofence, what 96 
 
 Reasonable Care and Caution, what 367 
 
 Must be Proportionate to Known Danger 367 
 
 Reasonable Care Required 347 
 
 Plaintiff mxist exercise Reasonable Care 34 
 
 Cap^iers — Common Carriers 87, 119 
 
 Character. 
 
 Good, Presumed 651 
 
 Proof of Good 651 
 
 Former Good Character 651 
 
 Omission to Prove 651 
 
 Effect of 651 
 
 Always Proper 652 
 
 Guilt notwithstanding 653 
 
 Chattel Mortgage — Frauds against Creditors 224 
 
 Children. 
 
 Father Entitled to Earnings of Minor 316 
 
 Contributory Negligence of 415 
 
 Goods furnished Minor Child 60 
 
 Father may Emancipate Minor Child 627 
 
 Minor can Disaffirm Contract, when 628 
 
 CiRCtTMSTANTiAT- EVIDENCE— jE'<;?cZence 638 
 
 Commission Merchants. «» 
 
 Are Agents 120 
 
 Good Faith Required 120 
 
 Degree of Care Required 121 
 
 May Conform to Rules of the Market 121 , 122, 123 
 
 Must Conform to Rules and Usages 123 
 
 Margins 123, 124 
 
 Factors' Lien 124 
 
 Right to Sell Without Permission 125 
 
 When may not Sell 125 
 
 Selling without Orders 126 
 
 Account Si ated 126 
 
 Presumed to Conform to Custom and Usage 127 
 
 Real Estate Brokers 127 
 
 Contracts Illegal 129, 130 
 
 Contracts Legal 130, 131 
 
 Common Carriers — Of Passengers and Baggage Ill 
 
 Common Carrier Defined Ill 
 
 Injury prima facie Evidence of Negligence Ill, 112 
 
 Degree of Care required of the Carrier 113, 114 
 
 50
 
 786 INDEX. 
 
 Common Carriers — ContUrved. 
 
 Degree of Care required of the Passenger 115 
 
 Passenger takes all Risks necessarily incident to the Mode of 
 
 Conveyance 117 
 
 Jumping from the Cars not Negligence, when 115 
 
 Jumping from the Cars Negligence, when 116 
 
 Not an Insurer against Accident 116 
 
 Liability for Baggage 117 
 
 If a Trunk contains Articles of special value Carrier should be 
 
 Notified 118 
 
 Not bound to Inquire as to the Contents of a Trunk 118 
 
 Placing Valuables in the hands of, as Baggage, is a Fraud 118, 119 
 
 Liability for Baggage terminates, when 119 
 
 Of Goods 87 
 
 Who is a Common Carrier 88 
 
 Liability of Common Carrier 88 
 
 Law of the State where the Goods are delivered, governs 88 
 
 Liable for all Loss except by Act of God, etc 88, 89 
 
 What is meant by Act of God 89 
 
 What is not an Act of God 89 
 
 Inevitable Accident, what 89 
 
 Must use B.easonable Care to Avoid Injury by Act of God 90 
 
 Written Receipt not required 90 
 
 Line Made up of Several Carriers 90, 91 
 
 When liability of Carrier commences 92 
 
 Liability Continues how long 92, 93 
 
 If Goods are not Delivered to Consignee they must be Stored.. 94 
 Railroad Companies are not Bound Jo Deliver to Consignee 
 
 Personally 95 
 
 Duty and Liability of Express Companies 95 
 
 Care Required of a Warehouseman 96 
 
 What is Ordinai-y Diligence and Care 96 
 
 Must Carry within a Reasonable Time 97 
 
 First Carrier Liable for Loss 91 
 
 Shipping Perishable Goods 97, 98. 99 
 
 Receipt prima facie Evidence of Goods in good order 99, 100 
 
 What Contract Bill of Lading Implies 100 
 
 Bill of Lading not Conclusive of Condition 100 
 
 Carrier does not Insure Condition of 101 
 
 Can only restrict Common Law Liabilities by contract 101 
 
 Legal duty of. Imposed by Law 101 
 
 Exemption Clause in Receipt not Binding 102 
 
 Exemption Clause Binding if agreed to 102 
 
 Shipper will be Presumed to Agree to Exemption Clause, when 102 
 
 Burden on Carrier to Show Loss within Exemption 103 
 
 Liability not Limited by Notice 103 
 
 Receipt Evidence of Exemption 103 
 
 Must Exercise Reasonable Care to prevent Loss within Exemp- 
 tion 104
 
 INDEX. 787 
 
 Common Carriers— Continued. 
 
 Shipper Bound by Receipt, when 104 
 
 Shipper not Bound by Notice Printed on Receipt 104 
 
 Cannot Restrict Liability arising from Negligence 105, lOG 
 
 Burden of Proof, Damaged Goods 106 
 
 Of Live Stock 107 
 
 Duties and Liabilities of 1 07 
 
 What care Required of 107, 108 
 
 Injuries without Carrier's Fault 108 
 
 Care Required of Carriers of Hogs 109 
 
 Degree of Care Required to Avoid Delay 109 
 
 Suit by Carrier for Freight and Charges 109, 110 
 
 Carrier's Lien 110 
 
 Composition Agreement. 
 
 Party not Bound by Offer to Compromise 47, 631 
 
 Concealing Stolen Property 776 
 
 Condemnation op Land 136 
 
 Measure of Damages , ^. 136 
 
 Compensation Irrespective of Benefits 137 
 
 Damages not Allowed for Part not Taken 137 
 
 Compensation Covers What Injuries 138, 139 
 
 Appropriation of Streets 141 
 
 Condonation — Divorce 177 
 
 Confessions in Criminal Cases— Evidence 641 
 
 Consideration— CoH^rac^ 149 
 
 Conspiracy. 
 
 Defined 671 
 
 Usually Proved by Circumstances 671, 712, 713, 714 
 
 Proof of Formal Agreement not Necessary 671 
 
 Sufficient Proof of Common Design 672 
 
 Who are Deemed Guilty 672 
 
 No Overt Act Necessary 672 
 
 Common Design or Purpose Must be Proved 673 
 
 Conspiracy to Commit an Assault 673 
 
 Participants after Conspiracy is Formed 672 
 
 Conspiracy to Cheat, etc 674 
 
 " " Overthrow the Law 711 
 
 " " Excite People to Violence 712 
 
 Offense Committed when Parties Further the Original Plan.. 714 
 
 Contesting Wills— TFiZ/s 589 
 
 Counterfeiting 776 
 
 Continuance. 
 
 Affidavit for 47 
 
 Contracts 145 
 
 Capacity to Contract 146 
 
 Drunkenness as a Ground of Avoidance 146
 
 788 INDEX. 
 
 Contracts — Continued. 
 
 Fraud and Circumvention in Procuring Execution of 147 
 
 Signature Procured by Fraud 147 
 
 What Constitutes 148 
 
 The Minds of the Parties must Meet 148 
 
 Need not be any Formal Acceptance 148 
 
 Of Sale, what is 148 
 
 Consideration Necessary 148 
 
 What is Consideration 149 
 
 One Promise is a Good Consideration for Another Promise .... 149 
 
 New Promise to Perform Legal Obligation 149 
 
 When Promise to Receive Part Payment is without Considera- 
 tion 149 
 
 Partial Payment by Stranger, etc 150 
 
 Construction of 150 
 
 Performed as Modii5ed by Parol 150 
 
 Right to Rescind for Fraud 151 
 
 Right to Rescind for Mistake of Fact 151 
 
 Notice of Intention to Rescind must be Given 152 
 
 Rescinding by Mutual Consent 152 
 
 Rescinding for Non- performance 152 
 
 When may Recover for Partial Performance 153 
 
 Hardship will not Excuse Non-performance 154 
 
 Act of God will Excuse, what is 154 
 
 Burden of Proving Breach of 154 
 
 Made on Sunday are Valid 154 
 
 Made on Sunday not Void but Voidable 154, 155 
 
 Subscription Paper 158, 159 
 
 For Labor, Presumed to Continue, when 629 
 
 Custom and Usage enter into 163 
 
 BiiUding Contract. 
 
 Certificate of Architect 164 
 
 Marriage. 
 
 How Proved 155 
 
 No Actual Promise need be Shown 155, 156 
 
 When Offer to Perform is not Necessary 158 
 
 Unchastity no Defense, when 156 
 
 Desirability of Party Should Not be Considered by Jury 156 
 
 Breach of Promise, how Proved 156 
 
 Promise Obtained by Fraud 157 
 
 Composition Agreement 159 
 
 Good Faith Required 159 
 
 Secret Agreement Renders Void as to others 160 
 
 Sale of Personal Froperty. 
 
 Future Delivery 160 
 
 No Demand for Delivery Need be Made, when 161 
 
 Only Act of God, etc., will Excuse Non-performance 162 
 
 Plaintiff Must Show Readiness to Perform 162 
 
 Measure of Damages 162, 163
 
 INDEX. 789 
 
 Co^TUACTS—Confiimcd. 
 
 Tender of Perforiuance 163 
 
 What Excuses Performance 162 
 
 Payment and Delivery Concurrent Acts 163 
 
 Option Contracts. 
 
 Option Contract Defined 129 
 
 Option Contract is Prohibited by Law 129 
 
 Custom and Usage Enter into and Form a Part of, when 163, 127 
 
 Corporations, 
 
 Suit against, How to be Tried 44 
 
 Witnesses for. How Regarded 44 
 
 Counsel — Statements of 49 
 
 Court. 
 
 Remarks by, in Presence of Jury •. 13 
 
 Credibility of Witnesses — Witness 30 
 
 Criminal Cases. 
 
 Rule of Evidence in 720 
 
 Where Evidence Fails to Establish Guilt 720 
 
 Mere Probabilities not Sufficient 721 
 
 Personal Opinion of Jurors 721 
 
 Custom and Usage — Commission Merchants 120 
 
 Enter Into and Form Part of a Contract 163 
 
 To be Binding Must be Generally Known and Established. . .. 163 
 
 Factors are Presumed to Conform to 127 
 
 Damages — Measure of Damages 342 
 
 Deadly Weapon. 
 
 Defined 667 
 
 Debt on Bond 80 
 
 Presumption from P oof of Signature 80 
 
 Sureties Bound by Action of their Principal 81 
 
 Extent of Agents' Authority 83 
 
 What is Proved by the Record in Replevin Suit 83, 84 
 
 Dedication — Highivays 248 
 
 Deed. 
 
 Takes Effect from Time of Delivery 85 
 
 What Constitutes Delivery 85 
 
 No Particular Form or Ceremony Necessary 85, 86 
 
 Need not be Delivered to the Grantee Personally 86 
 
 Must be Both Delivered and Accepted 86 
 
 Not Necessary to Transfer Adverse Possession 189 
 
 Title to Real Estate can only be Conveyed by 181 
 
 Priority of 182 
 
 By Way of Mortgage 183 
 
 Defendant in Criminal Cases. 
 
 Omission to Testify 723 
 
 Rule as to Credibility 714 
 
 Jury have no Right to Disregard 724
 
 790 INDEX. 
 
 Defexdakt IX CniMTNAL Cases — Continued. 
 
 Verbal Admissions of 724 
 
 Anarctiy, Dangerous Views 725 
 
 Burden not on Defendant 7il6 
 
 Delivery. 
 
 Of Official Bond 86 
 
 Of Deeds 85 
 
 Demand and Refusal. 
 
 Demand Need not be Made, when 657, 477 
 
 What Constitutes 430, 563 
 
 No Particular Form of Words Necessary 480, 563 
 
 Must be made by Party Authorized 563 
 
 Demand by Agent 564 
 
 GrourwJ of Refusal must be Specified 564 
 
 What Essential to a Demand 480 
 
 Evidence of Conversion 556 
 
 When Demand not Necessary in Trover 557 
 
 Departing from; the State — Attachment 76, 77 
 
 Desertion — Divorce 166 
 
 DiSTRAiNtNQ ^TOCK— Replevin 489 
 
 Divorce. 
 
 Residence and Desertion 166 
 
 Domicile of Husband is that of the Wife 166 
 
 Husband has Right to Select the Residence 167 
 
 Abusive Language Provocation for Wife leaving 167 
 
 When Desertion the only Issue 167 
 
 Separation by Mutual Consent 167 
 
 Absence Alone not Proof of Desertion 167 
 
 Desire for Reconciliation after Separation by Mutual Consent. 168 
 
 Refusal to Become Reconciled, Desertion, when 168 
 
 When Refusal to Become Reconciled not Desertion 168 
 
 Adultery as a Ground for 170 
 
 Adultery Must be Proved 170 
 
 Extreme and Repeated Cruelty as a Ground for 171 
 
 Drunkenness and Threats 171 
 
 Personal Violence Must be Shown 172 
 
 In Some States not Necessary 172 
 
 Acts of Cruelty Must be Repeated 173 
 
 Acts of Cruelty Must be Recent , 173 
 
 Reason to Fear Cruelty Must Exist When Bill is Filed 174 
 
 Acts of Cruelty Provoked by Complainant 175 
 
 Cruelty Provoked by Refusal to Cohabit 176 
 
 Hysteria 176 
 
 Laboring: under a Delusion 177 
 
 Burden of Proof 177 
 
 Condonation 177, 173 
 
 Desertion. 
 
 Grounds of, by Wife 163
 
 INDEX. 791 
 
 DivOTfCE — Continued. 
 
 Adultery, Excuse for 169 
 
 Cruelty as an Excuse for 169 
 
 Acts of Cruelty must be Apprehended at the Tiuie 170 
 
 Doubt. 
 
 Reasonable, Defined 645 
 
 As to Which of Two or More Persons is Guilty 649 
 
 Drunkenness. 
 
 Defined 738 
 
 As Affecting Capacity to Contract 146 
 
 As a Ground of Avoidance of a Contract 146 
 
 Shown in Mitigation in Slander 340 
 
 No Justification in Trespass 529 
 
 As Affecting Testamentary Capacity 597 
 
 Insanity Produced by Drunkenness 597 
 
 As Affecting Intent in Criminal Cases 687 
 
 No Excuse for Crime 700 
 
 Duress — Negotiable Instruments 469 
 
 Ejectment. 
 
 Only Legal Titles Involved 180 
 
 One in Possession of Real Estate Presumed to be Owner 180 
 
 Paper Title shown by Plaintiff 180 
 
 Right to Possession must be Shown 180 
 
 Title can only be Conveyed by Deed 181 
 
 Title Deduced from a Common Source 181 
 
 Both Parties Claim under same Person 181 
 
 Priority of Deeds 182 
 
 Visible Monuments Control Courses and Distance 182 
 
 Boundary on Watercourse 182 
 
 Boundaries a Question of Fact for the Jury 183 
 
 Plaintift"'s Deed by way of Mortgage 183 
 
 Possession ^jn»«(7/afie Evidence of Title 184 
 
 Defendant need not show by what Right he holds Possession 
 
 until Plaintiff has shown Title 184 
 
 First Possessor has the Better Title 185 
 
 Deed from Party in Possession Claiming Title 185 
 
 Adverse Possession in Ejectment. 
 
 Title by Prescription, without color 185 
 
 Must be Hostile in its Inception 186 
 
 Permissive Possession not Hostile 186 
 
 Possession Subservient to the True Owner 187 
 
 Presumed to be under Legal Title 187 
 
 Paper Title not Necessary 188 
 
 Possession by Successive Holders 188 
 
 Deed not Necei^sary to Transfer Possession 189 
 
 Temporary Line Fence 189 
 
 Line Fence Agreed upon 190 
 
 Agreed upon by Mistake 190
 
 792 INDEX. 
 
 Ejectment — Con finned. 
 
 Possession under Colc'r of Title 191 
 
 Burden of Proof— Limitations 191 
 
 What must be Shown under Limitation Law 192 
 
 What Constitutes Possession 193 
 
 Possession not under Color of Title 194 
 
 Inclosure by Natural Objects 194 
 
 Payment of Taxes, Seven Years — llrinois 191 
 
 Possession of Woodlands 193 
 
 Possession According to Boundaries in Title Papers 195 
 
 Notice by Possession 196 
 
 Embezzlemi kt 75 
 
 See Larceny 747 
 
 Eminent Domain 136 
 
 Estoppel. 
 
 General Rule 197 
 
 Intention Not Essential 198 
 
 Knowingly Permitting Another to Deal with Property as 
 
 Owner 1 98 
 
 Representations by the Acts of a Party 199 
 
 Representations must be Acted on 1 99 
 
 Must be a Fraudulent Purpose or Result 199 
 
 Injury Must be Shown 200 
 
 Holding Oneself out as Partner 467 
 
 Permitting One to Hold Himself out as Agent 650 
 
 Evidence. 
 
 Preponderance of, how Determined 38, 39, 40 
 
 Negative, What is Not 41, 42 
 
 Preponderance of, Sutficient in Suit for Sale of Intoxicating 
 
 Liquors 276 
 
 Weight of, a Question of Fact for the Jury 31 
 
 Weight of — Degree of Proof in Cr'nninal Cases. 
 
 Presumption in Favor of Innocence 634 
 
 Every Allegation Must be Proved beyond a Reasonable Doubt 634 
 
 Prisoner Entitled to Every Reasonable Hypothesis 634 
 
 Probability of Guilt not Sufficient 635 
 
 Preponderance of, not Sufficient 635 
 
 Jury Should Consider all the Evidence '. .. 635 
 
 The Guilty Ninety-Nine 636 
 
 Better that many Guilty Persons Escape, etc 636 
 
 Jury Should Endeavor to Reconcile 636, 723 
 
 Want of Motive 636 
 
 Accused Need Not Testify 636 
 
 Failure to Testify no Presumption against, etc 636 
 
 Testimony of Accused to be Weighed by the Jury 637 
 
 The Defendant as a Witness 637 
 
 Testimony of, should be Considered 638 
 
 Circumstantial. 
 
 Competent, etc 638
 
 INDEX. 793 
 
 EYiDKncK—Confiiiued. 
 
 Defined 639 
 
 Must all be Consistert with Guilt, etc 6:19 
 
 Must all be Inconsistent with Innocence 639 
 
 Circumstantial Evidence Defined 714 
 
 What will Justify Inference of Guilt from 722 
 
 When Conviction is Sought upon 724 
 
 Degree of Certainty Required from 640 
 
 One Fact Inconsistent with Guilt 640 
 
 Direct Evidence Not Required 641 
 
 Must Exclude every Reasonable Hypothesis of Innocence 640 
 
 Admissions and Confessions in Criminal Cases. 
 
 Must all be Taken Together 641 
 
 Must be Treated Like Other Evidence 641 
 
 Out of Court be Received with Caution 642 
 
 Effect when Corroborated. 642 
 
 When Sufiicient to Convict 642 
 
 Testimony of Accomplice to be Received with Caution 643 
 
 Fabricated Testimony Explained 643 
 
 Contradictory and Inconsistent Statements 644 
 
 One Witness Sufficient, when 644 
 
 Crime Charged must be Proved 644 
 
 Statement of Prosecuting Attorney not Based on Evidence.. .. 644 
 
 Reasonable Doubt Defined 645 
 
 In Circumstantial fjvidcnce 647 
 
 In the Anarchists' Case 715 
 
 Rule of Reasonable Doubt does not Extend to Each Link in the 
 
 Chain of Testimony 647 
 
 Duty of Jury to Determine Doubts 646 
 
 Attempt to Escape, how Considered 647 
 
 Execution. 
 
 Conclusive, when 480 
 
 Indorsement Conclusive, when 480 
 
 Justification under 481 
 
 Interest of Joint Owner Taken on 481 
 
 Lien of by Statute 482 
 
 False Imprisonment — Tresjmss 530 
 
 False Pretenses 776 
 
 Fences. 
 
 Line Fence Agreed upon 190 
 
 Inclosed by Natural Objects 194 
 
 Railroad Track to be Fenced 387 
 
 What a Sufficient Fence — 548 
 
 Owner Bound to Fence Against What — -See Trespass 550 
 
 Forcible Entry and Detainer 
 
 Title not Involved 201 
 
 Entry by Force not Necessary 202 
 
 Entry, by Force or Threats Essential 202
 
 794 INDEX. 
 
 Forcible Entky and Detainer — Continued. 
 
 The Real Question in Issue 203 
 
 Possession by Tenant 204 
 
 What Constitutes Possession 205 
 
 Possession Must be Actual and Real 205 
 
 What not Possession , 206 
 
 Burden of Proof 207 
 
 Forgery 777 
 
 Fraud. 
 
 Is Never Presumed without Proof 232 
 
 Right to Rescind Contract for 151 
 
 Of Partner Binds the Firm, when 471 
 
 Against Creditors. 
 
 Sale with Intent to Defraud Creditor^ ' 212 
 
 Fraudulent, Though for a Good Consideration, when .... 212 
 
 Must be a Change of Possession 212 
 
 Retaining Possession after Sale, Fraud jyer se 213 
 
 Must be Oatward Visible Signs of Change of Possession 213, 214 
 
 Priority of Possession under Execution 215 
 
 Retaining Possession — Presumptive Evidence of Fraud 215 
 
 Good Faith a Question for the Jury, when 216 
 
 Possession Evidence of Ownership 216 
 
 Possession not Evidence of Ownership, when 217 
 
 Only Such Change Required as Can Reasonably be Made 217 
 
 Property in Possession of Third Person 218 
 
 Symbolical Delivery 218 
 
 Possession may be by Agent 218 
 
 Possession of Growing Crops 219 
 
 Temporary Possession of Vendee 219 
 
 Temporary Possession of Vendor 483 
 
 Person Indebted may Sell his Property 219 
 
 Sale to Relatives not Necessarily Fraudulent 220 
 
 Debtor may Transfer Property in Payment of Debts 220 
 
 Sale on Credit 221 
 
 Debtor may Prefer Creditor 221 
 
 Preferring Wife as Creditor 222 
 
 Purchaser must be Chargeable with Notice of Fraud 222 
 
 Creditor not Affected by Knowledge, when 223 
 
 Wiiat is Sufficient Notice of Fraudulent Intent 223 
 
 Honest Intent Presumed 223 
 
 Chattel Mortgages as against Judgment Creditors, 
 
 Good between the Parties without Recording 224 
 
 As to Creditors must be Acknowledged and Recorded 224 
 
 Mortgagee must see to Statutory Requirements 225 
 
 Acknowledgment and Recording, how Proved 225 
 
 Mortgagee must Take Possession, when 225 
 
 Fraudulent Mortgage Void 225 
 
 Note for More than Amount Due 226
 
 INDEX. 
 
 795 
 
 Fraud — Conthmed. 
 
 Mortgage of Stock of Goods 226 
 
 Both Parties must Intend the Fraud 227 
 
 Good Faith, how Proved 227 
 
 Intent to Defraud must Exist at the Time 227 
 
 Subsequent Acts will not Render Void 227 
 
 Sales by Mortgagor 228 
 
 Mortgage to Secure Future Advances 228 
 
 Possession by Mortgagee 229 
 
 Possession by Mortgagor after Default 229 
 
 Mortgage to Secure Contingent Liability 229 
 
 Taking Possession before Debt Due 230 
 
 Sale by Mortgagor for Benefit of Mortgagee 230 
 
 Fraud and Circumvention in Procuring Contract 
 
 Fraud and Circumvention in Procuring ^ote—See Negotiable 
 
 Instruments 451 
 
 Fraud, Fat,se Representations, etc. 
 
 False Representations 231 
 
 Proof of Fraud 232 
 
 Never to be Presumed 232 
 
 Degree of Proof Required 233 
 
 Representations must be of the Past or Present 233 
 
 Must be Designed to Injure 233 
 
 Injury must be shown 233 
 
 Scienter must Appear from the Evidence 234 
 
 Expression of Opinion 234 
 
 Each may Exalt Value of his own Property 235 
 
 All Statements as to Value of Property 235 
 
 Representation as to the Law 235 
 
 Mere Silence is not Fraud, when 235 
 
 Purchaser Knowing Himself Insolvent 236 
 
 Purchaser must Exercise Reasonable Care 237 
 
 Purchase with Intent not to Pay 236 
 
 Drawing Check without Funds 236 
 
 Sale of Personal Property— Concealed Defects 236 
 
 Contract Procured by Fraud 237 
 
 Stating as True when a Party has no Reason for Belief 238 
 
 Suit for Fraud— What must be Proved 239 
 
 All the Representations need not be Proved 239 
 
 Action not on the Contract 240 
 
 Co-Defendant not Guilty 240 
 
 Sales Procured by Fraud 240 
 
 Right to Rescind 241 
 
 Sales not Void but Voidable 241 
 
 Contract may be Ratified, How 241 
 
 What is Ratification 242 
 
 Innocent Purchaser from Fraudulent Vendee 242 
 
 Purchaser without Notice 243 
 
 Goods Transferred in Payment of Debt 243
 
 796 INDEX. 
 
 Fraud, False Represkxtations, etc. — Continued. 
 
 Attaching or Execution Creditor 244 
 
 Purchaser must Exercise Reasonable Caution 244 
 
 Every False Atfirmation does not Amount to Fraud 544 
 
 A Party only Bound to use Reasonable Caution 245 
 
 Shipping Valuables as Baggage is a Fraud on the Carrier 118 
 
 Must be Discovered Before the Statute of Limitations begins to 
 
 Run 293 
 
 Good Faith Presumed 79 
 
 Growing Crops. 
 
 Possession of 219 
 
 Title in 288 
 
 When Personal Property 484 
 
 Levy on and Taking Possession . . . . 484 
 
 Officer Selling 540 
 
 Guarantor — Negotiable Instrunients 434 
 
 Habitual Criminals 778 
 
 Highways. 
 
 How Created 246 
 
 Presumption from Laying out and Working 247 
 
 Existence of, how Proved 247 
 
 Condemnation, how Proved 247 
 
 Actual Location must Prevail 247 
 
 Monuments Control Courses and Distances 247 
 
 What is Prima Facie Evidence of Location 248 
 
 Collision on 359 
 
 Dedication. 
 
 What Constitutes '. 248 
 
 What is Meant by 248 
 
 IVIustbeMade by Owner 249 
 
 No Particular Ceremony Required 249 
 
 No Specific Time Required 249 
 
 Must be Accepted 249 
 
 Owner must Intend to Dedicate 250 
 
 Binding on the Owner and all Claiming under Him 250 
 
 By Sale of Lots Bounded on Streets 251 
 
 Prescription. 
 
 What is 25 1 
 
 Travel must be Confined to Particular Route 252 
 
 Appropriation of. 141, 144 
 
 Highway Crossing — Negligence by Railroad Companies 401 
 
 Homicide. 
 
 Generally 677 
 
 Murder Defined 677 
 
 Express Malice Defined 678 
 
 Implied Malice Defined 678 
 
 Presumption from Killing 678 
 
 Voluntary and Involuntary 678
 
 INDEX. 797 
 
 HosncTDE — Conthnied. 
 
 Involuntary Killing, in the Commission of a Crime 678 
 
 Blow with a Deadly Weapon 679 
 
 Blow with a Deadly Weapon, no Considerable Provocation. . . 680 
 
 Words no SufBcient Provocation 681 
 
 Party Intends Natural Results of his Acts 695 
 
 Cause of the Death Must be Proved 681 
 
 Wound not Necessarily Fatal 681, 682 
 
 Murder in the First Degree 688 
 
 Murder in the Second Degree 683 
 
 Elements of Murder in First Degree 684 
 
 Killing Willfully, etc., 684 
 
 No Length of Deliberation Required 685 
 
 Premeditated Design 686 
 
 Premediated Design, Mutual Combat 687 
 
 Intoxication Affecting Intent 687, 700 
 
 Drunkenness no Excuse for Crime 687, 700 
 
 Murder by Poisoning 688 
 
 Death Hastened by Poisoning 689 
 
 How Proved by Circumstantial Evidence 689 
 
 Must Exclude every Reasonable Hypothesis, etc 689 
 
 Doubt as to which of Two or More 689, 690 
 
 Circumstances Pointing Strongly to some Other Person 689 
 
 " " toSuicide 690 
 
 ManslauffJtter 
 
 Words of Provocation will not Reduce Murder to Manslaughter 690 
 
 Verdict may be for Manslaughter 691. 692 
 
 Verdict may be for Lesser Crime 691 
 
 Voluntary and Involuntary Defined 692, 693 
 
 Malice. 
 
 Defined 694 
 
 Presumed, when 694 
 
 Aforethought 694 
 
 Implied, when 695 
 
 Malice Denotes any Wicked or Corrupt Motive 694 
 
 Intent, How Proved 695 
 
 Insanity. 
 
 Test of Criminal Responsibility 696 
 
 When not Responsible 677 
 
 Different Rules as to Burden of Proof 697 
 
 Reasonable Doubt as to Sanity 698 
 
 Sanity Presumed 698 
 
 Impulse of Passion no Defense 698 
 
 Act must be in Consequence of, etc 699 
 
 Partial '. 699 
 
 Must be the Efficient Cause 699 
 
 Test of ; 699 
 
 Drunkenness 7C0. 701,702 
 
 Self-Defense. 
 
 Danger Need Not be Real 703
 
 798 INDEX. 
 
 Homicide — Conthmed. 
 
 Force may be Resisted by Force 705 
 
 Assailant Retiring' from the Fight 705 
 
 Defense of Habitation 706 
 
 Attack Provoked by Defendant 787 
 
 Danger Must be Reasonably Apparent 703, 707 
 
 Reasonable Doubt as to Apparent Danger 707, 703 
 
 HrrsBAND AND Wipe — Married Women 310 
 
 Identity, Proof of 650 
 
 Indictment. 
 
 Only a Mere Accusation 719 
 
 Impeachment op Witness 33 
 
 Innocent Purchaser. 
 
 From Fraudulent Vendee 242 
 
 Withouf. Notice 242 
 
 Taking Note as Security 430 
 
 Taking Note in Payment 430 
 
 Assignee with Notice from Assignee without 431 
 
 Insanity. 
 
 Insane Delusion 610 
 
 As Affecting Criminal Responsibility 699 
 
 Partial 595 
 
 See Homicide 677 
 
 •' Wills, Contesting 589 
 
 Instructions. 
 
 Their Form and Requisites 7 
 
 Statute of Illinois 8 
 
 " Colorado 8 
 
 " "Minnesota 9 
 
 " "Missouri 9 
 
 " " Nebraska 9 
 
 " " Kansas 10 
 
 " Iowa 11 
 
 "Indiana 11 
 
 " "Michigan 11 
 
 " " Ohio 11 
 
 " " Wisconsin 11 
 
 " " Dakota 10 
 
 " " Arizona * 11 
 
 Must be in writing 13 
 
 Improper for Court to Make Remarks 13 
 
 In Writing may be Waived 14 
 
 Court may Instruct without Being Asked 14 
 
 Duty of Court to Instruct 14 
 
 Should be Clear, Accurate and Concise 15 
 
 Should not be Argumentative 15 
 
 Should be Confined to Matters of Law 16 
 
 Should not Submit Questions ot Law to the Jury 16
 
 INDEX. 790 
 
 Instructions — Confinued. 
 
 Degree of Care Required in a Given Case is a Question of La-w. 16 
 
 Abstract Propositions of Law Should Not be Given, when. ... 17 
 
 Should not Ignore Facts Proven 17 
 
 Should not Give Undue Prominence to Portions of the Evidence. 18 
 
 Should not Give Prominence to Unimportant Facts 18 
 
 Should be Given When There is any Evidence, etc 18 
 
 Must not Assume Facts Not Admitted 19 
 
 Facts not Controverted may be Assumed 19 
 
 May Assume What the Law Presumes 20 
 
 When all Material Allegations are Proved 20 
 
 Construction of Contracts 21 
 
 Should be Confined to the Issues Being Tried 22 
 
 Should be Based on the Evidence 22 
 
 One Instruction may be Limited by Others 28 
 
 Should be Considered all Together 23 
 
 Error Will not Always Reverse 24 
 
 Must be Construed in Connection with the Evidence 24 
 
 When Error Will Reverse 24 
 
 Should be Harmonious 25 
 
 Must Require the Jury to Believe from the Evidence 25 
 
 Need not be Repeated, when 26 
 
 Instructing as in Case of Non-suit 26 
 
 Error in Admitting Evidence Obviated by 27 
 
 When not Obviated by 27 
 
 Effect of Evidence Limited by 27 
 
 Jury may Come in for Further Instructions 28 
 
 The Giving of Further Instructions is in the Discretion of the 
 
 Court 28 
 
 Court may Limit the Time for 28 
 
 In Criminal Cases, Jury are the Judges of the Law and Facts. 28 
 Insurance. 
 
 Duty of the Court to Interpret the Policy 253 
 
 Suit to be Brought within Tv/elve Months 253 
 
 Non-Payment of Premium 254 
 
 Estoppel by Uniform Course of Business 255 
 
 Application is Made a Warranty 255 
 
 Warranty as to Amount of Incumbrance 255 
 
 Fraud, Knowledge of Agent of the Company 257 
 
 Condition as to Other Insurance 258 
 
 Other Insurance known to the Defendant 260 
 
 Representations as to Incendiarism 260 
 
 Warranty as to Title 261 
 
 Non-compliance with Conditions 261 
 
 Furnishing Proof of Loss 262 
 
 Waiving Proof of Loss 264 
 
 Condition to Render Account of Loss Forthwith 266 
 
 Promises Becoming Unoccupied 267 
 
 Premises Temporarily Vacant 268 
 
 False Swearing in Proofs of Loss 269
 
 800 INDEX. 
 
 Intent. 
 
 When Material in Trespass 536 
 
 In Criminal Cases — Assault with Intent, etc 659 
 
 Felonious Intent — Larceny 739 
 
 Party Presumed to Intend Natural Results of bis Acts 695 
 
 Intoxicating Liquors — Civil Damages. 
 
 Suit bj- Wife, Statutory Provisions 270 
 
 What must be Proved 271 
 
 Defendants Jointly and Severally Liable 271 
 
 Sufficient if the Liquor Sold Contributed 271 
 
 Owner of Premises not Liable, when 272 
 
 Suit against Saloonkeeper and Owner of Building' Jointly 272 
 
 Propriety of the Law not a Question for the Jury 273 
 
 Burden of Proof, what must be Proved 273 
 
 Proximate Cause, what 274 
 
 New or Intervening Cause 275 
 
 Preponderance of Evidence Sufficient 276 
 
 Good Faith not a Mitigation, when 276 
 
 Verdict must be Founded on the Evidence 277 
 
 Selling Liquor without License 730 
 
 Joint Wrongdoeks — Aiders, Abettors, etc 654 
 
 Jury.. 
 
 Have no Right to Disregard the Testimony of a Witness withr 
 
 out Cause 33 
 
 When may Disregard Testimony of a Witness 34 
 
 Should Reconcile the Testimony, if Possible 35 
 
 Weight of 'i'estimony a Question of Fact for the 
 
 Verdict of, to be Determined by the Evidence Alone 49 
 
 May Believe Part of an Admission and Reject Part 45 
 
 Propriety of the Law not a Question for 273 
 
 May come in for Further Instructions 28 
 
 In Criminal Cases are the Judges of the Law and Facts 28. 647 
 
 In the Anarchists' Case 716, 717 
 
 Must Take the Law from the Court 591 
 
 Not to Disbelieve as Jurors if they Believe as Men 716 
 
 Have the Right to Disregard Instructions 717 
 
 Not to Convict on Suspicion 718 
 
 Judges of the Credibility of Witnesses 721 
 
 Duty to Scrutinize all Instructions 728 
 
 General Rule of Law Governing Juries 728 
 
 Landlord and Tenant. 
 
 The Relation must Exist 278 
 
 Suit for Rent 279 
 
 Occupant Liable for Rent, when — Illinois 279 
 
 Surrender of Premises, How effected 280 
 
 Surrender Must be Assented to by Landlord 280 
 
 Eviction Stops the Rent 281 
 
 Eviction from Part of Premises 281
 
 INDEX. 801 
 
 Landlokd and TEt^At^T— Continued. 
 
 1 Forcible Expulsion not Necessary 281 
 
 '1, Acts of Trespass not Eviction 282 
 
 ' What Constitutes Eviction 283 
 
 Landlord's Lien for Rent — Illinois 283 
 
 Levy of Distress Warrant not Necessary to Perfect Lien 284 
 
 Lien against Purchaser from Tenant, when 284 
 
 Tenant Holding Over — Contract Implied 284 
 
 New Contract Implied, when 285 
 
 When not Implied 286 
 
 Wrongful Holding Over — Illinois 286 
 
 Tenant cannot Deny Landlord's Title 287 
 
 Landlord not Bound to Repair 287 
 
 Title to Crops is in the Tenant 288 
 
 Tenant's Right to Remove Fixtures 288 
 
 Larceny. 
 
 Crime Defined 739 
 
 Every Material Allegation Must be Proved 634 
 
 Rule for Determining Value of Property 751 
 
 Value Must be Proved 740 
 
 Name of Party Injured Must be Proved 740 
 
 Special Property Sufficient 740 
 
 Identity of Accused 741 
 
 Criminating Circumstances Proved 741 
 
 Person Having Possession of Property Must be Called as a Wit- 
 ness 741 
 
 Taking Must be with Felonious Intent 74y 
 
 Taken under Claim of Right 744 
 
 Possession Obtained by Fraud, with Intent 745 
 
 Money must be Proved to be Genuine 745 
 
 Presumption from Possession of Stolen Property 746 
 
 Possession Explained 747 
 
 What Constitutes the Taking and Carrying Away 74 1 
 
 Lost Goods Found 742 
 
 Larceny of Estrays 743 
 
 Venue of Conversion 750 
 
 Forms of Verdict 751 
 
 As Bailee. 
 
 Meaning of the Term - 747, 750 
 
 Felonious Intent Necessary 748 
 
 Taken with Intent to Repay Himself 748 
 
 Levy of Execution. 
 
 What Constitutes 539 
 
 Invalid, when 539 
 
 . Colorable Levy Invalid 539 
 
 Libel. 
 
 Libel Defined 509 
 
 Malice Defined 609 
 
 51
 
 802 INDEX. 
 
 Libel — Continued. 
 
 Damages Presumed 510 
 
 Plea of Justification Filed 510 
 
 Malice Presumed, when 511 
 
 Plea of Justification an Aggravation, when 512 
 
 Not an Aggravation 518 
 
 Mitigation of Damages 513 
 
 General Issue Impliedly Admits, etc 514 
 
 No Plea of Justification Filed 513 
 
 Liberty of Speech — Anarchists'' Case 711 
 
 Lien. 
 
 Of Common Carrier 110 
 
 Factor's Lien 124 
 
 Of Landlord for Rent — Illinois 283 
 
 Levy of Distress Warrant not Necessary 284 
 
 Landlord's Lien against Purchaser from Tenant 284 
 
 Of Judgment and Chattel Mortgage 487 
 
 Of Warehouseman 560 
 
 Limitations. 
 
 Statute a Bar, when 290 
 
 Payment a new Promise 290 
 
 When the Statute Begins to Run 291 
 
 Running Accounts 291 
 
 Absence from the State 292 
 
 Debt Revived by New Promise 292 
 
 Must be a Promise to Pay the Debt 298 
 
 What Amounts to a Promise 293 
 
 What is not a Promise 293 
 
 Does not begin to Run until Fraud Discovered 293 
 
 Malice. 
 
 How Proved 295 
 
 Express, Defined 678 
 
 Implied, Defined 678 
 
 Implied, when 695 
 
 Aforethought 694 
 
 Presumed, when 695 
 
 3IALICI0US MiscniEP. 
 
 Crime Defined 752 
 
 Malice, how Proved 752 
 
 Ownership, how Proved 752 
 
 Ownership Must be Proved as Alleged 753 
 
 Injury Must be Proved as Alleged 753 
 
 Malice Must be Proved 753 
 
 Malice against the Owner Must be Shown 753 
 
 Malicious Prosecution. 
 
 What Must be Proved 295 
 
 Want of Probable Cause must be Proved 296 
 
 Charge Must be Willfully False 296
 
 INDEX. 803 
 
 Malicious Proskcuticx — Con firmed. 
 
 Arrest without Probable Cause 297 
 
 What is Probable Cause 296 
 
 Malice may be Inferred from Want, etc 297 
 
 Burden of Proof on the Plaintiff , 299 
 
 What is Want of Probable Cause 300 
 
 Cannot be Inferred from Proof of Malice ' 300 
 
 Not Necessary that a Crime should have been Committed 301 
 
 The Prosecution Must be Ended 301 
 
 Discharge by Justice 302 
 
 By Advice of Counsel 302 
 
 Presumption from Good Character 304 
 
 Mai-practice . 
 
 Warranty of Skill, etc., Implied 305 
 
 Patient Bound to Follow Instructions 308 
 
 Burden of Proof 308 
 
 Ordinary Skill Defined 305, 306 
 
 Manslaughter— ifom(C(VZ^ 692 
 
 Defined, in the Anarchists' Case 729 
 
 Margins 123 
 
 Married Women. 
 
 May Own, Manage or Convey 310 
 
 May Employ Husband as Agent 311 
 
 When Liable for Repairs on House 312 
 
 May Ratify the Act of Husband 312 
 
 Husband May Give to Wife, when 313 
 
 When Proceeds of her Farm Belong to Husband 313 
 
 What not Separate Estate as to Creditors 314 
 
 Wife may Give Property to her Husband 316 
 
 Husband Entitled to Earnings of Minor Children 316 
 
 Work and Labor by— Illinois 316, 317 
 
 Husband Liable for Goods Furnished Wife, when 61 
 
 Living Separate without her Fault 62 
 
 Desertion of Husband by 62, 63 
 
 Master and Servant. 
 
 Master Liable for Injury to Servant, when 417 
 
 Negligence, Railroad Companies 382 
 
 Measure of Damages. 
 
 Generally, How Determined 342 
 
 Death from Negligent Act 320, 321, 322 
 
 Death from Intoxication. 
 
 Suit by Widow 322 
 
 Damage cannot be Given for Mortification or Mental Suffering 
 
 of Wife 823 
 
 Exemplary Damages 323 
 
 Damages from Intoxication other than Death 324 
 
 Personallnjury. 
 
 From Defective Sidewalk. .. - 375
 
 804 INDEX. 
 
 Measuke op Damages — Continued. 
 
 Damages May be Allowed for Pormanent Injury 325 
 
 Exemplary Damages in Tort Generally 327 
 
 Exem plary Damages Defined 343 
 
 False Imprisonment 344 
 
 Fraud and Deceit. 
 
 Not Necessarily Confined to Actual Damage 335 
 
 What is Actual Damage 335 
 
 In Assault 
 
 Exemplary Damages 827,343 
 
 Aggravation of Damages 828 
 
 Mitigation of Damages 329 
 
 Exemplary Damages Not Allowed, when 329 
 
 Landlord and Tenant. 
 
 Premises Not Occupied— No Rent Paid 829 
 
 In Libel. 
 
 Jury should Consider, what 332 
 
 Filing Plea of Justification an Aggravation of 340 
 
 When Not an Aggravation 340 
 
 Mitigation of 340 
 
 Slander. 
 
 Words Actionable, per se 338 
 
 Damages Presumed, when 839 
 
 Pecuniary Circumstances of Defendant 839 
 
 Words Spoken in Heat of Passion 339 
 
 Drunkenness in Mitigation 340 
 
 Plea of Justification must be Filed in Good Faith 840 
 
 Exemplary Damages may be Given, when 341 
 
 Plaintiff's Bad Reputation may be Shown 339 
 
 In Suit on Bond. 
 
 Replevin 330 
 
 In Malpractice. 
 
 Jury should Consider, what 333 
 
 In Malicious Prosecution 344 
 
 Marriage Contract. 
 
 Breach of Marriage Contract 833 
 
 In Fraud and Deceit 335 
 
 Exemplary Damages Defined 843 
 
 Work and Labor. 
 
 Part Performance 836 
 
 Contract to Deliver — Part Performance 836 
 
 Refusal to Deliver Personal Property 336 
 
 Property bought for Re-sale f 37 
 
 Refusal to Accept Personal Property 838 
 
 Common Carriers. 
 
 Loss of Baggage 842 
 
 Goods Lost 842 
 
 In Breach of Contract for Future Delivery 160
 
 INDEX. 805 
 
 Measure op Damages— CowfiMMcd. 
 
 //( TresiMss. 
 
 Good Faith in Miti<?ation 533 
 
 Exemplary Damages 343 
 
 In Trover. 
 
 Suit by General Owner 662 
 
 By One Having Special Property 562 
 
 By Lien Holder 5G2 
 
 Against Lien Holder 663 
 
 In Warranty. 
 
 On Breach of 683 
 
 On Entire Contract. 
 
 On Breach of 623 
 
 For Work and Labor 621 
 
 Mistake op Fact. 
 
 Right to Rescind Contract for 151 
 
 Motive. 
 
 Want of, in Criminal Cases 636 
 
 Municipal Corporations. 
 
 Liable for Unsafe Conditions of Streets, when 364 
 
 Duty Imposed by Law 365 
 
 Duty to Provide Guards and Notice 366 
 
 Streets Liclude Sidewalks 366 
 
 Accident and Negligence 366 
 
 Reasonable Care and Caution, what 367 
 
 Care must be Proportionate to the Known Danger 367 
 
 No Liability without Negligence 368 
 
 Slight Negligence will not Defeat Recovery 369 
 
 Degree of Care required 370 
 
 Negligence of Driver 370 
 
 Not Obliged to Open Streets 370 
 
 Do not Insure the Safety 370 
 
 Liable for Negligence of Others, when 371 
 
 Not Liable for the Negligence of Others, when 373 
 
 Defective Sidewalk — Notice of Presumed, when 875 
 
 Must have Notice, Actual or Constructive 374 
 
 Changing Grade of Street. 
 
 Injury to Adjoining Property 375 
 
 Liable for Want of Reasonable Care Only 376 
 
 Contra 377 
 
 Changing Watercourses 378 
 
 Measure of Damages 380 
 
 Defective Plan of Public Improvement 877 
 
 Sewer out of Repair 379 
 
 Murder — Homicide 676 
 
 Definition, Anarchists' Case 710 
 
 Penalty, " " 711
 
 806 INDEX. 
 
 Negligence, Generally. 
 
 Burden of Proof 346 
 
 Degree of Care Required 347 
 
 Ordinary Care Required 347 
 
 Plaintiff must Exercise Reasonable Care 347 
 
 Of Servant, Master Liable for 348 
 
 Servant must be Acting within Scope of EmploA-nient 349 
 
 Wrongful Act of Servant 350 
 
 Must be Proximate Cause 350 
 
 Of Contractor 351 
 
 Contributory and Gross 352 
 
 Comparative Negligence 354 
 
 Death Caused by 354 
 
 Equal Negligence 357 
 
 Injury the Result of Accident, and 358 
 
 Voluntary Exposure to Danger 358 
 
 Ordinary Care Defined 359 
 
 Slight and Gross Defined 359 
 
 Collision on Highway 359 
 
 Of Common Carrier. 
 
 Injury to Passenger, Prima Facie Evidence of Ill 
 
 Cannot be Avoided by Contract 101 
 
 Not Liable, when 88 
 
 Of Railroad Comjxinies, 
 
 Duty to Furnish Safe Machinery, etc 382 
 
 Liable for Torts of Servant. . . . ; 383 
 
 Negl igence, per se 383 
 
 Plaintiff must Exercise Ordinary Care 383 
 
 Right to Make Rules 384 
 
 Expelling Passenger 385 
 
 Passenger can Only be Put Off at Station 386 
 
 Danger from Fire 361 
 
 Injuries to Passengers 386 
 
 Fencing Track. 
 
 Failure to Comply with the Law, Negligence per se 387 
 
 Statutory Provision 387 
 
 Must Exercise Reasonable Care to Prevent Injury to Animals. . 388 
 
 Casual Breach in Fence 389 ' 
 
 Stock Unlawfully Running at Large 391 
 
 Obligation to Fence not Limited to Adjoining Owner 392 
 
 Cattle Guards 893 
 
 Plaintiff's Contributory Negligence 393 
 
 Stock Escaping and Running at Large 393 
 
 What must be Proved 393 
 
 Rights and Liabilities at. Equal and Mutual 403 
 
 View of Track Obstructed by Weeds 405 
 
 Care Required of Travelers 406 
 
 Care Must be Proportionate to Known Danger 407 
 
 Contributory and Gross Negligence 408
 
 INDEX. 807 
 
 Negligence, Generally— CoH('i«Mf(?. 
 
 Negligence per se in Traveler 409 
 
 Conduct in Presence of Sudden Danger 410 
 
 Negligence Charged Must Cause Damage 411 
 
 Injury to Stock at 4i2 
 
 Neglect to Ring Bell Prima Facie Evidence, etc 412 
 
 Burden of Proof as to Ringing Rell 413 
 
 Must Exercise Reasonable Care and Watchfulness to Avoid 
 
 Injuring Stock 413 
 
 Speed through Cities Limited by Ordinance 414 
 
 Speed through Cities not Limited by Ordinance 415 
 
 Contributory Negligence of Children 415 
 
 Negligence as Regards Children 417 
 
 Injuries hy Fire. 
 
 Prima Facie Negligf nee 894 
 
 Reasonable Care to Prevent Spread of F.re 394 
 
 Must Provide Approved Apparatus 395 
 
 Dry Weeds and Grass 397 
 
 Care Required of Land Owner 397 
 
 Degree of Care Required of Company 399 
 
 Highivay Crossing. 
 
 Must be Put in Safe Condition 401 
 
 Care Required at 401 
 
 Negligence of Driver 401 
 
 Signals to be Given at 403 
 
 Master Liable to Servant, 
 
 Liable to Servant, when 417 
 
 Duty Towards Employes 418 
 
 Bound to Employ Reasonable Care and Skill 421 
 
 Servant Takes no Risks not Incident to Business 420 
 
 Servant not Bound to Inquire, etc 420 
 
 Negligence in Employing Servant 420 
 
 Degree of Care Required 421 
 
 Employe Assumes all Ordinary Risks 422 
 
 Servant Having Knowledge of Defects 423 
 
 Servant must JJ>e Reasonable Care 423 
 
 Negligence of Fellow-Servant 424 
 
 Fellow-Servant Defined 424 
 
 Duty to Make Rules, etc 425 
 
 Negligence of Defendant and of Fellow-Servant 426 
 
 Of Municipal Corporations. 
 
 Slight, of Plaintiff, will not Defeat Recovery 354 
 
 Of Driver 401 
 
 Municipal Corporations 3fi4 
 
 Negotiable Instruments. 
 
 Presumption in Favor of the Holder 429 
 
 Presumption can Only be Overcome by Proof 430 
 
 Taken as Security — An Innocent Purchaser 430 
 
 Not Taken in Payment or Part Payment, etc 430
 
 808 INDEX. 
 
 Negotiable Instkuments — Continued. 
 
 Assignee with Notice from an Assignee without 431 
 
 Indorsement in Blank 431 
 
 Assignee after Maturity 431 
 
 Assignee before Maturity without Notice, etc 432 
 
 Assignment without Consideration 432 
 
 Assignee with Notice of Suspicious Facts 432 
 
 Who Deemed a Bona Fide Holder 483 
 
 Assignee with Knowledge 434 
 
 Liability of Guarantor of Collection or Assignor under Illinois 
 
 Statute— Note 434 
 
 Liability Fixed by Statute 434 
 
 Intention does not Govern 435 
 
 Due Diligence Defined 435 
 
 Proof of Due Diligence 436 
 
 Suit Unavailing 436 
 
 Part of Noto Collectible 437 
 
 Insolvency of Maker 438 
 
 Maker Removed from State 437 
 
 Execution Returned — No Property Found 438 
 
 Insolvency, How Proved Otherwise 439 
 
 Return not Conclusive 439 
 
 Execution from Justice 439 
 
 Possession of Personal Property Evidence of Ownership. . .439, 440, 441 
 
 Guarantor of Payment. 
 
 Liability of Indorser and Guarantor 441 
 
 Liability Fixed by Contract 441 
 
 Name of Third Person on Back of Note 442 
 
 Liability Continues how Long — Till Note is Paid 442 
 
 Delay will not Release 442 
 
 Consideration Necessary 443 
 
 What Agreement Releases Guarantor 444 
 
 Subsequent Promise to Pay 446 
 
 Release — Extending Time 444 
 
 Failure or Want of Consideration. 
 
 Burden of Proof 448 
 
 Consideration Presumed 449 
 
 Abandonment of Claim Good Consideration 449 
 
 Claim must be Sustainable 450 
 
 Without Consideration, Void, when 450 
 
 New Party, New Consideration 462 
 
 Obtained b;/ Fraudulent Re])resentations. 
 
 What Must be Proved 451 
 
 Representation Must be Material 451 
 
 Obtained by Fraud and Circumvention. 
 
 Void, when 451, 4.52 
 
 Fraud in Consideration not Sufficient 452 
 
 Signing without Reading 454 
 
 Mistake as to Legal Effect 454
 
 INDEX. 809 
 
 Negotiable Instruments — Confhnied. 
 
 Maker must use Reasona^ile Care to Avoid, etc 455 
 
 What is Reasonable Care 455 
 
 Burden of Proof 456 
 
 Fraud may be Waived 457 
 
 Stolen or Wrongfully Obtained 458 
 
 Maker Liable, when 458 
 
 Duress, What — Abuse of Criminal Process 459 
 
 Moral Coercion 459 
 
 Lawful Luprisonment not Duress 461 
 
 Notice. 
 
 Carrier's Liability not Limited by 103 
 
 Of Exemption Bindin? on Shipper, whon 102 
 
 Of Exemption not Binding Shipper, when 102 
 
 To Municipal Corporation, of Defective Sidewalks, Presumed, 
 
 when 375 
 
 Must have Actual or Constructive Notice of Defective Side- 
 walks 
 
 By Possession 374 
 
 To Agent, Notice to Principal 66 
 
 To Corporation, How Given 463 
 
 Facts Culling for Inquiry 464 
 
 Recitals in Deed 464 
 
 Of Unrecorded Deed 465 
 
 To Agent, Binding, when 463 
 
 Option Contracts — Commission Merchants 129 
 
 Partnership. 
 
 Who are Partners in Fact 466 
 
 How Formed 466 
 
 As to Third Persons 466 
 
 Holding Oneself Out, etc 467 
 
 In the Name of one Partner 468 
 
 Test of Partnership 469 
 
 Power to Bind the Firm 469 
 
 What Acts do not Bind 470 
 
 Partner Using Credit or Efrects of 470 
 
 Acts Beyond the Scope of Business 470 
 
 Bound by Ratification 471 
 
 When Fraud of one Partner Binds the Firm 471 
 
 Notice of Dissolution Necessary, when 471 
 
 Cannot Sue Each Other at Law 472 
 
 When may Sue at Law 474 
 
 Parties. 
 
 Competent Witnesses 43 
 
 Not Compelled to Testify— Failure 43 
 
 Testimony of, to be Weighed by Jury 43 
 
 Verbal Admissions of, How Weighed 44, 45, 46 
 
 When not Estopped by Admissions 46
 
 810 rNDEx. 
 
 Parties — Continued. 
 
 When not Bound by Offer to Compromise 47 
 
 Not Bound by Statements of his own Witness 48 
 
 Capacity to Contract 146 
 
 Failing to Testify 43 
 
 Passengeks — Commo7i Carriers Ill 
 
 Payment. 
 
 Part Payment in Full 149 
 
 Part Payment by Strangers 150 
 
 Giving a Note not Payment 461 
 
 Performance, 
 
 Tender of 163 
 
 Prevented by Defendant 616 
 
 Substantial 618 
 
 Payment, Condition Precedent 619 
 
 Perjury. 
 
 Charge must be Proved 755 
 
 Proof to Authorize Conviction 755 
 
 Materiality of Evidence Sufficient, when 756 
 
 One Witness Sufficient, when 756 
 
 Authority of Officer must be Shown 757 
 
 Testimony must be Proved as Alleged 757 
 
 Must be Willingly and Knowingly False 758 
 
 No Reasonable Grounds of Belief 757 
 
 Official Character of Justice must be Shown 758 
 
 That the Accused was Sworn must be Shown 758 
 
 More than one Witness Required, when 759 
 
 What must be Proved 759 
 
 Materiality must be Shown 760 
 
 Test of Materialty 760 
 
 Plea. 
 
 Of Justification in Libel 
 
 Of Justification in Slander must be Filed in Good Faith 508 
 
 Of Justification in Slander, How Proved 505 
 
 When Plea does not Impute Crime, How Proved 607 
 
 Office of the Plea 508 
 
 Possession. 
 
 What Sufficient to Maintain Trespass 
 
 Of Real Estate Presumed to be under Legal Title 187 
 
 Right to, must be Shown in Ejt ctment 180 
 
 Prima Facie Evidence of Title 184 
 
 One First in Possession has the Better Title 185 
 
 Deed from Party Claiming 185 
 
 What Constitutes, of Real Estate ]93 
 
 What Constitutes, of Woodland 193 
 
 Enclosure by Natural Objects 194 
 
 Not under Color of Title 194
 
 INDEX. 811 
 
 Possession — Confhaud. 
 
 According to Boundiirics in Title P.ipors 195 
 
 Notice by 196 
 
 Of Personal Property. 
 
 Change of, on Sale of — Frauds agahist Creditors 212 
 
 Of Personal Property, Evidunce of Title 216, 429 
 
 Temporary Possession by Vendor 483 
 
 Sufficient to Maintain Trespass 535, 542 
 
 As against a Wrongdoer 536 
 
 Evidence of Title in Trover 552 
 
 Temporary, not Delivery, when 560 
 
 Symbolical Delivery of 218 
 
 May be by Agent 218 
 
 Of Growing Crops 218 
 
 Temporary, of Vendee 219 
 
 Possession Advekse — Ejectment 185 
 
 Presumptions. 
 
 Of Innocence 715, 717 
 
 Not a Mere Form 719 
 
 Prescription — Highways 251 
 
 Principal and Agknt — Agency 57 
 
 Prosecuting Attorney. 
 
 Statements of 624 
 
 Proximate Cause. 
 
 What is 274 
 
 Negligence Charged Must be 350 
 
 Public Officer. 
 
 Is a Special Agent 59 
 
 Individual Members of Board Cannot Act 68 
 
 Purchaser 
 
 Must Exercise Reasonable Caution 244 
 
 Rape. 
 
 Crime Defined 762 
 
 Submission through F>';ir 762 
 
 Child under Lawful Age 763 
 
 Complaining to Others 764 
 
 Consent Given - 764 
 
 Female Bound to Resist 765 
 
 Power of Resistance not Overcome, etc 765 
 
 Contact of Sexual Organs Necessary 766 
 
 Character of the Woman may be Shown to Affect Credit 766 
 
 Character of Woman no Defense 766 
 
 No Outcry Made 767 
 
 Assault with intent, etc 767 
 
 Reasonable Doubt as to Intent 768 
 
 Ratification. 
 
 What is 242
 
 812 IJS'DEX. 
 
 ItATIFICATIOX — ^0"fhl1ie(L 
 
 Fraudulent Purchase may be Ratified , 241 
 
 Act of Partner may be Ratified 472 
 
 Of Agent's Acts — Ayenctj 63 
 
 Trespasser by 540 
 
 Real Estate Brokers 127, 128 
 
 Reasonable Doubt. 
 
 Raised by Evidence 718 
 
 " " Ingenuity ot Counsel 718 
 
 In the Anarchists' Case 715, 718, 720 
 
 What is Sufficient to Raise — Evidence 721 
 
 Receipt. 
 
 Prima Facie Correct 54 
 
 May be Contradicted 54 
 
 Evidence of Goods in Good Order 99 
 
 Notice of Exemption in Carrier's Receipt, when Binding on 
 
 Shipper - 104 
 
 When Notice of Exemption not Binding on Shipper 104 
 
 Replevin. 
 
 When the Action Lies 475 
 
 Right to Possession Sufficient 475 
 
 Burden of Proof 476 
 
 What Must be Proved 476 
 
 Wrongful Detention, How Proved 476 
 
 When Demand not Necessary 477 
 
 Contesting Plaintiff's Title, no Demand Necessary 477 
 
 When Demand Necessary i78 
 
 Wrongful Taking or Demand Must be Proved 479 
 
 What Essential to a Demand 480 
 
 Against an Officer. 
 
 Property Taken on Execution -480 
 
 Execution Conclusive, when 4?0 
 
 Executions and Indorsements Prima i^an'e Evidence, when.... 480 
 
 When Demand Necessary 478 
 
 Levy on Interest of Joint Owner 481 
 
 Plea of Property in A. and B 481 
 
 Burden of Proof 481 
 
 Plea of Property in a Stranger 482 
 
 Possession Evidence of Title 482 
 
 Lien of Execution by Statute 482 
 
 Fraudulent Sale as against Execution 483 
 
 Temporary Possession by Vendor 483 
 
 Growing Crops, When Personal Property 484 
 
 Levy on G ro w ing Crops, and Taking Possession 484 
 
 Building Personal Property, when 485 
 
 Lien of Judgment and Chattel Mortgage 487 
 
 Trover. Property Not Found 488 
 
 Bailee Cannot Deny Bailor's Title 488
 
 INDEX. 813 
 
 Repleytn — Continued. 
 
 Right to Distrain Cattle Trespassing 489 
 
 Must be Taken Damage Feasant 49 ' 
 
 Property held under Replevin Bond 484 
 
 Plaintiff's Right to a Part of the Property 485 
 
 Property of Minor Child 485 
 
 Residence and Domicil. 
 
 Defined 491 
 
 Doinicil of the Husband that of the Wife 491 
 
 Change of 491 
 
 Robbery. 
 
 Crime Defined 770 
 
 Facts Constituting 770 
 
 Taking Must be by Force or Foar 77 1 
 
 Property Must be Proved as Charged 771 
 
 Verdict may be for Larceny 772 
 
 What is Meant by Taking from the Person 772 
 
 Dangerous Weapon, etc 774 
 
 Sale. 
 
 What is a Contract of 148 
 
 Of Personal Property, Future Delivery ^(0 
 
 Procured by Fraud 151, 157 
 
 Contract of, may be Rescinded for Fraud 151 
 
 Contract of, may be Ratified 241 
 
 Fraudulent as against Creditors 483 
 
 By Simple, Implied Warranty 574 
 
 When Not by Sample 575 
 
 When the Title Passes 493 
 
 Conditional Sale 494 
 
 Tranfer of Bill of Lading 495 
 
 A Thief acquires no Title, He can Convey None 495 
 
 For Future Delivery. 
 
 Implied Warranty of Kind and Quality 576 
 
 OfMachineon Trial 579 
 
 Selp-Depense — Homicide 703 
 
 Selling Liquor "without a License. 
 
 What Constitutes the Offense 730 
 
 Burden of Proof as to License 731 
 
 One Sale, Delivered at Diff 'rent Times 731 
 
 Sales by Servant or Employe 732 
 
 When Not Liable for Act of Servant 732 
 
 Charge Must be Proved as Alleged 733 
 
 Agency Must be Proved 734 
 
 Single Transaction One Offense 734 
 
 Sale to Minors 734 
 
 Burden of Proof as to Written Order 734 
 
 Knowledge of Minority Immaterial 735 
 
 Knowledge and Intent Material 735
 
 814 INDEX. 
 
 Selling LiQroR ■without a License — Continued. 
 
 Selling to a Person in the Hiibit, etc 7 736 
 
 Meaning of "In the Habit of Getting Intoxicated " 736 
 
 Habit Must Exist at the Time 737 
 
 In the Habit of Drinking, Not Enough 738 
 
 Knowledge or Criminal Intent Necessary 737 
 
 Intent Necessary ^ 736 
 
 Drunkenness Defined 738 
 
 Settlement— ^ccoimf Stated 51 
 
 Sidewalks — Municipal Corporations 364, 369 
 
 Slander. 
 
 Nature of the Action 497 
 
 Malice and Damage Presumed, when 497 
 
 Malice Defined 498 
 
 All the Words Need Not be Proved 498, 505 
 
 Words Presumed to be Used, How 498 
 
 Charge of Dishonesty 499 
 
 Charge of Adultery, etc 499 
 
 Charge of Arson by Inuendo 500 
 
 Charge of Murder by Inuendo 501 
 
 Words Must be Proved as Charged 501 
 
 Words Not Spoken Maliciously 502 
 
 Anger no Justification 503 
 
 Anger in Mitigation, when 503 
 
 Slanderous Words Explained 504 
 
 Piea of Justification, How Proved 505 
 
 When the Plea Does Not Impute Crime 507 
 
 Plea of Justification Filed in Good Faith 508 
 
 Ofiice of the Plea of Justification 508 
 
 Repeating Reports 508 
 
 Special Propeuty 
 
 Defined 536 
 
 Trover, by One Having 533 
 
 In Malicious Michief 752 
 
 Statements op Counsel 49 
 
 Statute of Frauds . 
 
 What is a Promise to Pay the Debt of Another 208 
 
 What is not 208 
 
 Contract not to be Performed within a Year 210 
 
 Streets — See Municipal Corporations. 
 
 Appropriation of 141, 144 
 
 Subscription Paper. 
 
 Suit on 158 
 
 SuNDAT. 
 
 Contracts Made on 154 
 
 Seduction 779 
 
 Sureties. 
 
 Signing Bond in Blank 82, 83
 
 * INPEX. S15 
 
 Takixg Property without Consent op Owner 778 
 
 Tender. 
 
 What Constitutes a Valid Tender 515 
 
 Burden of Proving 516 
 
 Made as a Gift or Present not Valid 517 
 
 Made on Condition not Valid 517 
 
 Willingness to Pay no Tender 517 
 
 If Accepted, Must be upon Terms Proposed 518 
 
 Specifying Objection a Waiver of Others 519 
 
 Production of Money may be Waived 519 
 
 Kept Good 520 
 
 After Suit Brought 520 
 
 Equivalent to Payment, when 559 
 
 On Condition of Receipt in Full 517 
 
 Tender Waived 521 
 
 Title. 
 
 In Action of Ejectment only Legal Title Involved 180 
 
 One in Possession of Real Estate Presumed to have 180 
 
 Can Only be Conveyed by Deed 181 
 
 Deduced from a Common Source 181 
 
 One Having Prior Deed has Legal Title 182 
 
 Possession Prima Facie Evidence of 184 
 
 First Possessor has Better 185 
 
 Deed from Party in Possession Claiming 185 
 
 By Prescription, without Color of Title 185 
 
 By Payment of Taxes under Color of Title 191 
 
 Not Involved in Forcible Entry and Detainer 201 
 
 Trespass — Injuries to the Person 523 
 
 Assault and Assault and Battery Defined 523 
 
 Plaintiff's First Assault 524 
 
 Aiding, Abetting, etc 525 
 
 Evil Intent or Negligence Required 525 
 
 Expelling Trespasser 526 
 
 Repelling Force by Force 527 
 
 In Defense of Possession 527 
 
 Self-Defense, Excessive Force 528 
 
 Drunkenness no Justification 529 
 
 Words or Provocation no Justification 530 
 
 Words of Provocation in Mitigation of Damages 529 
 
 Degree of Proof Required 630 
 
 False ImjJrisonment. 
 
 What Constitutes 530 
 
 Who Liable as Joint Trespassers 531 
 
 When Not Liable as Joint Trespassers 532 
 
 Part of Defendants Guilty, Form of Verdict 533 
 
 Good Faith in Mitigation 533 
 
 Exemplary Damages, when 534 
 
 njuries to Personal Property. 
 
 What Constitutes 534
 
 816 INDEX. 
 
 TRESPASf? — Continued. 
 
 What Possession Sufficient 535 
 
 Possession by Agent 635 
 
 Possession as against Wrongdoer 636 
 
 Special Property Defined 536 
 
 Intent Immaterial 536 
 
 Acts Prima Facie Trespass 536 
 
 Trespass ab Initio 537 
 
 Justification by an Officer 537 
 
 Property Taken on Execution 538 
 
 What Constitutes a Levy 539 
 
 Levy Invalid, ■when 539 
 
 Officer Selling Growing Crops 540 
 
 Seizure under Distress Warrant 541 
 
 When Landlord not Liable 541 
 
 Exemplary Damages 542 
 
 Actual Damages Only 642 
 
 On Real Estate. 
 
 Actual Possession Sufficient, etc 542 
 
 Trespasser by Ratification 540, 543 
 
 By an Agent 543 
 
 Entry Under Legal Process 544 
 
 Abuse of Legal Process 544 
 
 Entry Obtained by Fraud 545 
 
 Joint Trespassers 545 
 
 Taking Personal Property an Aggravation 546 
 
 *^«/ Domestic Animals. 
 
 Different Laws in Different States — Note 546 
 
 Not Permitted to Run at Large 547 
 
 Owner of Land not Bound to Fence, when 547 
 
 Lawfully Running at Large 548 
 
 Land Protected by Fence 548 
 
 What is a Sufficient Fence 548 
 
 Escaping through Division Fence 549 
 
 Burden of Proof 549 
 
 Entry through Plaintiff's Portion of the Fence 650 
 
 Bound to Fence against what Stock 550 
 
 Trover. 
 
 By General Owner 552 
 
 By one Having a Special Property 533 
 
 By one in Possession 553 
 
 What Interest Plaintiff Must Have 554 
 
 Suit by Servant or Agent 554 
 
 Burden of Proof 555 
 
 Must Prove Conversion 555 
 
 Property Lost not Conversion 656 
 
 Negligence of Defendant 556 
 
 Demand and Refusal Prima Facie Evidence, etc 556 
 
 When Demand not Necessary 557
 
 IKDEX. 
 
 817 
 
 TfiOVKR — Con fin ued. 
 
 Willful Destruction of Property a Conversion 557 
 
 Title Claimed by Purchase from Owner 558 
 
 Tender Equivalent to Payment 559 
 
 When Title Passes without Payment 659 
 
 Temporary Possession by Vendee 560 
 
 Suit against Warehouseman 560 
 
 Warehouseman's Lien 560 
 
 Tender Waiver of Production of Money 561 
 
 Measure of Damages — Suit by General Owner 562 
 
 Damages, one Having Special Property 562 
 
 Damages by Lien Holder 562 
 
 Damages — Suit against Lien Holder 563 
 
 Price Paid Prima Facte Evidence of Value 563 
 
 Price Paid not Conclusive Evidence of Value 563 
 
 The Demand, What Constitutes 563 
 
 Demand by Agent, Ground of Refusal 564 
 
 Trunk — Common Carrier 118 
 
 Usury. 
 
 Interest Forfeited 565 
 
 Presumption from Payment of 565 
 
 Interest Paid to be Credited on Principal 566 
 
 Excess Paid as Commissions 566 
 
 Attempts to Evade the Statute 567 
 
 Contract must be Proved as Pleaded 567 
 
 Note Given for Usury 568 
 
 Note Growing out of Antecedi'nt Transactions 568 
 
 Bona fide Holder of Note 569 
 
 Verdict. 
 
 'J'o be Determined by the Evidence 49 
 
 Must be Founded on the Evidence 49 
 
 Forms, in the Anarchists' Case 716 
 
 Not Guilty, Meaning of 718 
 
 Warehouseman. 
 
 Care Required ot 96 
 
 Trover against , 560 
 
 Lien of 660 
 
 Warranty. 
 
 By Agent 59 
 
 What Constitutes 570 
 
 No Particular Form of Words Required 571 
 
 Intention not Material, when 571 
 
 What Does not Amount to 572 
 
 Mere Expressions of Opinions not 672 
 
 Praise or Boasting not 573 
 
 Must Form Part of the Contract 573 
 
 Warranty after Sale 574 
 
 Sale by Sample, Implied 674 
 
 52
 
 818 INDEX. 
 
 Waebanty— Co»f!'n!<ei. 
 
 Reasonable Opportunity to Inspect, etc. 575 
 
 Sale when not by Sample ^ . . . . 575 
 
 Warranted Equal to Sample 575 
 
 Sale for Future Delivery. 
 
 Implied Warranty 576 
 
 Implied, of Kind and Quality 676 
 
 Implied of Manufacturer 577 
 
 Of Machine on Trial 579 
 
 To be Returned within Reasonable Time 579 
 
 May Return Property or Recoup 578 
 
 When no Implied Warranty 579 
 
 When Purchaser has Opportunity to Inspect 579 
 
 Fraud and Breach of Warranty 680 
 
 Of the Soundness of a Horse 580 
 
 Defect must Exist at Time of 581 
 
 Visible Defects not Warranted against 581 
 
 Artifice to Prevent Examination 682 
 
 What Plaintiff Must Prove 682 
 
 Measure of Damages 583 
 
 Of Skill and Care Implied, when '. 305 
 
 Of Skill and Care of Workman Implied 613 
 
 Watercourses. 
 
 Defined 685 
 
 No Right to Divert Ancient Watercourse 585 
 
 Owner of the Soil, Owner of the Surface and Subterranean Water 586 
 
 No Right to Obstruct Flow of Surface Water 587 
 
 Prescriptive Right to Obstruct Flow of Water 687 
 
 Wills, Contesting. 
 
 Who May Make 590 
 
 Relatives have no Legal Claim, etc . 590 
 
 Essentials of a Will 591, 607 
 
 Jury Should Take the Law from the Court 591 
 
 Witnessing— What Sufficient 591 
 
 Degree of Mind Required 607 
 
 Less than to Execute a Contract 607, 608 
 
 Jnsanlly or Unsound Mind. 
 
 Issue to be Tried 592 
 
 Burden of Proof 692 
 
 What is Sound and Disposing Mind 593 
 
 Test of Testamentary Capacity 59 1, 607, 608, 609, 610 
 
 What is Testamen ary Capacity 594 
 
 Partial Insanity, Monomania 595 
 
 Eccentricities 609 
 
 Delusion Regarding Wife or Child's Property 696 
 
 Sanity is Presumed 596 
 
 Insanity — How Determined 596 
 
 Settled Insanity Presumed to Continue 696 
 
 Drunkenness 597 
 
 Drunkenness, Insanity, when 597
 
 INDEX. 819 
 
 Wrr Ls, Contesting — Continued. 
 
 May Produce Insanity 597 
 
 Drunkenness as Affecting Testamentary Capacity 597 
 
 Partial Failure of Memory 598 
 
 Old Age Does Not Incapacitate 598 
 
 Previously Expressed Purposes 598 
 
 Will May be Referred to • 599 
 
 Expert Testimony — Hew Judged 599 
 
 Testimony of Subscribing Witness — How Judged 600 
 
 Undue Influence. 
 
 Issue to be Tried 600 
 
 No General Rule— What Must Appear 601 
 
 MustAffect the Will 602 
 
 Must Destroy Free Agency 602 
 
 Legitimate Influence, What 603 
 
 Legitimate Advice or Persuasion 604 
 
 Cannot Question Testator's Motives 604 
 
 Motives May be Inquired into, when 604 
 
 Presumption from Unlawful Cohabitation 605 
 
 Effect of Groundless Fears 605 
 
 Provisions of Will may be Considered 606 
 
 Contest on Appeal from Probate Court. 
 
 Model Instructions 606 
 
 Contest in Chancery. 
 
 Model Instructions 608 
 
 Witness. 
 
 One Sufficient, when. ' 644, 756, 759 
 
 Credibility of, Question of Faet for the Jury 31 
 
 Circumstances Affecting the Credit of 31, 32,33 
 
 One Credible Witness may be Entitled to More Credit than a 
 
 Number of Others 33 
 
 Jury Have no Right to Disregard the Testimony of, without 
 
 Cause 33 
 
 When the Jury may Disregnrd the Testimony of 84 
 
 The Jury Should Reconcile the Testimony of, if Possible 35 
 
 Credit of a Witness Depends on Two Things 34 
 
 A Fact is Proved if Reasonably Inferred 36 
 
 Impeachment of. 86 
 
 Willfully Swearing Falsely 80 
 
 Bad Reputation for Truth 36 
 
 Different Statements Out of Court 37 
 
 Contradictory Statements Out of Court 38 
 
 Jury Need Not Disregard Testimony of Impeached Witness. . 41 
 
 Contradictory Statements Out of Court Explained 38 
 
 Testimony of, as to Dates 42 
 
 Excused from Answering 50 
 
 A Party as. 
 
 Testimony of, to be Weighed by Jury 43 
 
 Verbal Admission of. How Weighed 44 
 
 Admission of, all to be Considered Together 45, 46
 
 820 INDEX. 
 
 Witness — Continued. 
 
 Admission of, Jury may Believe Part and Reject Part 45 
 
 Admission of, How to be Weighed 44, 45 
 
 For a Corporation, How Regarded 44 
 
 Attorney as 60 
 
 In Criminal Cases, Anarchists' Case 714 
 
 HJxperts. 
 
 Medical Testimony 599 
 
 Woodland — Ejectment 193 
 
 Words op Provocation — Horn icicle 690 
 
 Work, Labor and Services. 
 
 Implied Contract 612 
 
 Promise to Pay Implied, when 612 
 
 Where no Price is F.xed 613 
 
 Professional Services, Price Implied 613 
 
 Warranty of Skill and Care Implied 613, 614 
 
 Ordinary Skill Defined ! ' 615 
 
 Effect of Accepting Work 615 
 
 Usual Wages Implied, when 615 
 
 Not Bound by Acceptance, when 616 
 
 Entire Contract. 
 
 Fulfillment Prevented by Defendant 616 
 
 Alterations of Plans 617 
 
 Substantial Performance 618 
 
 Leaving Employ w thoul Good Cause 618 
 
 Payment a Condition Precedent 619 
 
 Burden of Proof 620 
 
 Pretext for Leaving 620 
 
 Must be Substantial Cause for Leaving 620 
 
 Right to Recover in Different States — Note 620 
 
 Rule of Damages 621 
 
 Servant must Demean Himself Respectfully 622 
 
 Leaving on Account of Sickness 623 
 
 Discharged or Compelled to Leave without Good Cause 623 
 
 Measure of Damages 623 
 
 Workman must Avoid Unnecessary Damage 624 
 
 Services by Member of Family 625 
 
 Stranger Member of Family 625 
 
 Services of Child 626 
 
 When Promise to Pay Child may be Inferred 627 
 
 Emancipation of Minor 627 
 
 Minor can Disaffirm Contract, when 628 
 
 No Implied Promise to Pay for Gratuitous Labor 628 
 
 Agreed Price must Govern 629 
 
 Contract Presumed to Continue, when 629 
 
 Evidence of Reasonable Worth 630 
 
 Burden of Proving Payment 630 
 
 Not Bound by Offer to Compromise 631 
 
 Effect of Pleading Set-Off 631 
 
 Written Contract Varied by Parol 632
 
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