INSTRUCTIONS 
 
 AND 
 
 REQUESTS FOR INSTRUCTIOiXS 
 
 FROM THE COURT TO THE JURY IN 
 JURY TRIALS. 
 
 MORE ESPECIALLY ADAPTED TO THE PRACTICE OF THOSE STATES WHERE 
 SrCH INSTRt'CTIONS ARE REQUIRED TO BE IN WRITING. 
 
 BY 
 
 FEEDERICK SACKETT, 
 
 CHICAGO: 
 PUBLISHED BY S. A. WELLS, 1G2 LA SALLE ST. 
 1881.
 
 Entered According to Act of Congress, in the year 1880, by 
 
 FKEDEEIC'K SACKETT, 
 In the Office of the Librarian of Congress, at "Washington. 
 
 T 
 m) 
 
 JAMESON .1- MOKSK, PKINTEKS, 
 102 & 104 Clark St., Chicago.
 
 PREFACE 
 
 In offering this work to the profession, it may not be improper to 
 state the considerations which induced its undertaking, and the objects 
 sought to be accomphshed by it. No 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 to the j)rofession in those 
 states where instructions are required to be in Avriting, a work of prac- 
 tical 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 prepared 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 instructions to the jury. He gen- 
 erally commences the practice of his profession not only without expe- 
 rience, 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, qualifications, and limitations are 
 treated of in another chapter; all of which may be proper enough for 
 a learner, but 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 imfrequently 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 surprise, that while 
 the language used by the court was proper enough, taken in connection 
 with the facts in the case under consideration, it'Avas 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 case is not much better with many of the older 
 
 G67465
 
 i V 1' K E F A C E . 
 
 iiicmbcrs of tho profession. The tnitli is, very few lawyers are able to 
 write an elaborate set of instructions upon intricate points of law amidst 
 tlie 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 appli- 
 cable to the case may be recalled readily enough; but its exceptions 
 and qualilications 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 
 instructions than there arc for the 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 indispens- 
 able to the young practitioner, and that 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 princijjle of law which it purports to announce, with all its 
 necessary exceptions and limitations, without reference to the other 
 instructions in the case. In the following pages are contained over 
 two thousand general instructions, complying with the above requi- 
 sites, which cover most of the more difficult points which are likely to 
 arise in a general practice. It is, of course, impossible to anticipate 
 the ever-varying facts of different cases, but it is believed that but few 
 cases will present themselves, involving difficult propositions of law, 
 for which the necessary general instructions can not be found in this 
 work, or instructions embracing the principles desired to be enunciated, 
 which can, by very slight verbal alterations, be adapted to the case in 
 point, or at least serve as a guide in drawing others adapted to the 
 peculiar facts of the case on trial. With any amount of aid from others 
 there will always be abundant opportunities for the exercise 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 differ 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 tho object of this 
 work is not so much to teach the law, as it is to assist in a correct state- 
 ment of it; and it has been assumed that each lawyer knows the laws 
 peculiar to his own state.
 
 1' II !■: FACE. V 
 
 Wlieii 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.
 
 PAET I. - 
 
 Instructions — Their Fornn and 
 Requisites.
 
 PART I. 
 
 IXSTRUOTIONS— THEIR FORM AND REQUISITES. 
 
 In the orderly and regular progress of a cause before a jury, 
 ill courts where 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 neces- 
 sary or desirable, and directing or instructing 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 nisi prius not 
 only to state to the jury all the evidence 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 partic- 
 ular 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 require 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 writing. 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 instructions 
 are reduced to writing. 
 
 "And when instructions are asked which the court cannot give, 
 he shall on the margin thereof write 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 tv 
 the jury otherwise than in writing."
 
 10 INSTKUCTIOXS : 
 
 Iowa. — "Wlu'ii the ai-i:;uiiRMit is conchidud, eitlu'r ]t;irty may 
 request iii.-tnictions to tlie jury on points of law, which shall he 
 given or refused by the eourt. If the court refuse a written 
 instruction as demanded, hut i^-ive tlie same with a modification, 
 Avhich the court may do, siu-h nioditication shall not he by inter- 
 lineation or erasure, hut shall he well defined, etc. 
 
 "Tlie court must read over all the instructions which it intends 
 to give, and none others, to the jury, and must write the Avords 
 'Given,' or 'Eefused,' as the ease may he, on the margin of each 
 instruction. 
 
 "After argument, the court may also, of its own motion, charge 
 tlie jury, which shall i)e exclusively in writing. The court shall 
 not make any oral explanation of any instruction or charge." 
 
 Indiana. — "When the evidence is concluded, and either party 
 desires special instructions to be given to the jury, such instruc- 
 tions shall be reduced to writing, numbered and signed l)y 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 recpiested 
 <^r positively refuse to do so; or give the instruction with a mod- 
 ification, in such manner tliat it shall distinctly ap^iear 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 modified, or to the modification. 
 
 "When the argument of the cause is eoncludec>, the court sliall 
 give geiiei'al instructions to the jui-y, which shall be in writing 
 and signed by the judge if recpiired by either party." 
 
 Michigan. — "Hereafter, in all civil and criminal cases at law, 
 circuit courts, in charging or instructing juries, shall cliarge or 
 instruct them only as to the law of the case; and such charge or 
 instruction shall be in writing, and may be given by the court 
 upon its own motion. 
 
 "luther party may present written requests for instructions 
 on any point of law arising in the case. Whenever instructions 
 are asked which the court cannot give, he shall write in the 
 margin thereof 'Refused;' and such instructions as the court 
 approves lie shall designate by writing in the margin thereof the 
 word '(jiven.' 
 
 "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 chai-ge given after 
 the conclusion of the argument, shall be reduced to writing 
 by the court, if either party request it before the argument
 
 THEIR FORM AND REQUISITES. 11 
 
 to the jui-v is eoinmenccd; and such charge, or any charge or 
 instruction, ])r()vi(UMl i'or in this section, when so written and 
 given shall in no case be orally qualiiied, modified or in any 
 manner explained to the jury by the court." 
 
 Wisconsin. — " Upon the trial of every action, the judge presiding 
 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 commencement of the trial ; 
 and except that the charge or instructions may be delivered orally 
 wdien taken down by the official phonographic reporter of the 
 court. Each instruction asked by counsel to be given to the 
 jui-}' shall be given without change or modification, the same as 
 asked, or refused in full. If any judge shall violate any of the 
 foregcung provisions, or make any 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 Mandatory— 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 statement not in 
 writing. It is error for the court to instruct the jury orally, or 
 to orally explain or modify an instruction. Ray vs. ■ Woolters^ 
 19 111., 82; Head et al. vs. Langworthy, 15 la., 235; Hardin 
 vs. Helton, 50 Ind., 320; Horton vs. Williams, 21 Minn., 187; 
 State vs. Jones, 61 Mo., 232; Miller vs. Hampton, Z1 A\2i., 
 312; Widjier vs. State, 28 Ind., 391; Strattan vs. Paul, 10 
 la., 139. 
 
 It is a violation of the statute for the court to instruct the 
 jury orally as to the impropriety of certain modes of arriving 
 at their verdict. III. Cent. Ed. Co. vs. Hammer, 85 111., 520. 
 
 Remarks by the Court Calculated to Influence tlie Jury. — It is not 
 
 proper for a court to make remarks in the hearing oi a jury 
 calculated to influence their finding. Shelly vs. Boland, 78 
 111., 138; Furhman vs. Huntsville, 51 Ala., 263; Wannaclc vs. 
 Mayer, etc., 53 Ga., 162; Hashrouck vs. Milwaukee, 21 Wis,, 
 
 217.
 
 12 , instructions: 
 
 liemarks by the court to the jury touching the public neces- 
 sity of their airreeiuir, or other remarks calcuhited to luisten 
 thcii- venlict, however well meant, is a practice that cannot be 
 sn.stained and is unwarranted by the law. and il" made in a case 
 at law where the facts are shai-ply contested would vitiate the 
 verdict. ]-'<ini/iaiii vs. Farnhtim, l'-\ 111., 4'.>7. 
 
 Contra: AVhere a j ury, after 1 )eing out five hours, returned into 
 court and announced their inability to agree upon a verdict, in- 
 structions upon their duty as to reconciling their view^s and arriving 
 at a verdict, if consistent with their consciences, rather than 
 that the parties should 1)0 put to the trouble and expense of try- 
 ing the case again, nothing being said to the i)rejudice of either 
 party, ai-e held not erroneous. Pierce vs. Rehfuss, 35 Mich., 
 53 ; Allen vs. Woodson, 50 Ga., 53. 
 
 § 2. In Writing may be Waived. — "While the statute requires that 
 the instructions given to the jury shall be in writing, the parties 
 may waive that provision of the law, and when they do so and 
 consent that the court may instruct the jury orally, they an; 
 estopped from afterwards objecting. Bates vs. Ball, 72 111., 
 108. 
 
 A\nien 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; Yamoey vs. State, 41 Tex., 639. 
 
 § 3. The Court may Instruct without beinsr Asked. — A judge of the 
 circuit court is at liberty to instruct at his disc-retion if he 
 reduces his instructions to writing, so that the jury can take 
 them with them in considering of their verdict. Broion vs. 
 TJte People, 4 Gilm., 439; Green vs. Lewis, 13 111., 642. 
 
 § 4. Duty of the Court to Instruct. — It is the duty of the judge, 
 when recpiested, 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 the law as applicable to it, 
 and it is ei'ror to refuse an instruction so framed because the 
 case supposed does not include some other hypothesis etpially 
 rational. People vs. Taylor, 36 Cal., 255; Hays vs. Paul, 51 
 Penn. St., 134,
 
 THEIR FORM AND REQUISITES. 13 
 
 Each party lins the right to have the jury instructed upon tlie 
 law of tlie case clearly and pointedly, so as to leave no reasona- 
 ble groinid for misapprehension or mistake; and if the instruc- 
 tions of the court fail thus to instruct, it is error to refuse one 
 calculated to cure the omission. Muldowney vs. III. Cent. lid. 
 Co., 32 Iowa, 176; Carpente?' vs. State, 43 Ind., 371; Morris 
 vs. Piatt, 32 Conn., 75 ; Nels vs. State. 2 Tex., 280. 
 
 It is the duty of the judge to see tliat every case so goes to the 
 jury that they have clear and intelligent notions of the points 
 they are to decide, and to this end he should give necessary in- 
 structions whether so requested by counsel or not, and his fail- 
 ure so to do is held ground for a new trial where the verdict 
 was not one which effectuated justice between the parties. — 
 Oxoen vs. Oioen, 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. C, R. I. d; P. R. Co., 46 
 la., 399 ; Dassler vs. Wisley, 32 Mo., 498. 
 
 § 5. 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 argumentative, equiv- 
 ocal, or unintelligible to the jury. Moshler vs. Kitchell, 87 
 111., 19. 
 
 Instructions should always be clear, accurate and concise 
 statements of the law as aj)plicable to the facts of the case. It 
 was never contemplated under the provisions of the practice act 
 that the court should be required to give a vast number of in- 
 structions, amounting in the aggregate to a lengthy address; 
 such a practice is mischievous, and ought to l)e discountenanced. 
 A few concise statements of the law applicable 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 
 III., 417; Trish vs. Newell, 62 III, 196; State \^. Mix, 15 
 Mo., 153.
 
 i-i I N s r u icT roNs • 
 
 § G Should Not be Argimionlalivo. — It is erroneous to ^ivc an 
 iiistriietioii whieli is inoic in the nature of an ariruuient than a 
 statement of the law f^oveniiiig the ease, o;iviiiu^ un(hie prouii- 
 nence to facts relied upon, and reeitini^ faints liaviu<^ no tendency 
 to support the theory presented. Ludwuj vs. Sager, S-i 111,, 
 'J'J; Thorpe vs Groioey, 85 111., 012. 
 
 § 7. Should l»i' Conliui'd to .Matters of Law. — The charge of the 
 couit to the jui-y should he 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 wdiat it proves. Russ vs. Steamboat, 
 etc.; *J la., 374; Thompson vs. Hovey, \Z 111., 198. 
 
 § 8. Should Not Submit Questions of Law to the Jurj-. — It is error 
 to give instructions to the jury which require thein to find and 
 determine legal propositions. The court should direct the jury 
 what the law is on the facts ^vhich the evidence 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 Lae, 
 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 ei-ror to 
 sul.)mit both these questions to the determination of a jury l)y 
 instructions. White vs. Murtland, 71 111., 250: Rohrahacher 
 vs. Ware, 37 la., 85; Lapeer etc., Lis. Co. vs. Doyle, 30 
 Mich., 150. 
 
 "Whether a chattel mortgage is proved to have been duly 
 acknowledged and recoided is a question of law for the court, 
 and should not l)e submitted to the jury. Bailey vs. Godfrey, 
 54 111., 507. 
 
 In an a(;tion against a i-ailroad company for damages for in- 
 jury to private property by the construction of its road upon a 
 public street, it was held to be error to instruct the jury to de- 
 termine whether the company had constructed more tracks, or 
 upon different lines, than were authorized by the city ordinances.
 
 THEIR FORM AND REQUISITES. 15 
 
 The iiuiubcr of tracks thus authorized was a question of hiw, 
 respecting which the cf)urt shouhl liave determined the legal 
 rights of the parties. Ingram et al. vs. The 6% D. di 3£. It. 
 R. Co., 38 la., GC9. 
 
 The Dej?ree of Care Required in a Given Case is a Question of Law. — 
 
 The law prescribes the degree of care required in every class of 
 cases — in other words, whether, in a given case, a person is re- 
 quired to exercise slight care, reasonable 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 the 
 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 negligence 
 of the defendant, an instruction on the part of the defendant 
 that the plaintiff cannot recover unless the proof shows that by 
 the exercise of due or proper care he could not have averted the 
 injury, is erroneou?, as it submits a question of law to the jury as to 
 what is proper care, and does not confine them to the fact 
 whether the plaintiff used ordinary care, which is all the law 
 requires. Stratton vs. Cent. City Horse By. Co., 95 111., 25. 
 
 § 9. Abstract Propositions of Law Sliould Not be Given, When. — In- 
 structions should be framed with reference to the cii-cumstances 
 of the case on trial, and not be expressed in abstract and general 
 terms, when such terms may mislead instead of enlightening the 
 jury. C (& A. Rd. Co. vs. Utley, 38 111., 410. 
 
 Instructions containing mere abstract legal propositions with- 
 out any e\idence to support them, are calculated to mislead the 
 jury, and should not be given. Stein vs. The City, etc., 41 la,, 
 353; McNair vs. Piatt, 46 111., 211. 
 
 §10. Should not Ignore Facts Proven. — When there is e^adonce 
 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. c& P. Co. vs. Tilton, 
 87 111., 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
 
 IG instructions: 
 
 as to present tlie case fairly for botli parties. Cushman vs. 
 Cogswell, S6 111., G3; Snyder vs. The State, 59 Incl., 105. 
 
 An instruction which undertakes to give a summary of the 
 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 objectionable, ^vans 
 vs. George, 80 111., 51; Newman vs. Mc Comas, 43 Md., 70. 
 
 §11. Should not Give Undue Prominence to Portions of the Evidence. — 
 
 An instruction which singles out and gives undue prominence to 
 certain facts, ignoring other facts proved and of equal importance 
 iii a proper determination of the case, is improper. Calef vs. 
 Thompson, 81 111., 478; Westchester F.I. Co. vs. Earle, 33 
 Mich., 143; Jones vs. Jones, 57 Mo., 138. 
 
 § 12. Should not Give Prominence to Unimportant Facts. — An in- 
 struction 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. Cohoell, 
 90 111., 612; Chesney vs. Meadoios, 90 111., 430. 
 
 § 13. Should be Given when there is Any Evidence, etc. — When the 
 evidence tends to prove a certain state of facts, the party in whose 
 favor it is given has a right to have the jury instructed on the 
 hypothesis of such state of facts, and leave it to the jury to find 
 whether the evidence is sufficient to establish the facts supposed 
 in the instruction. If the instructions are pertinent to any part 
 of the testimony, they should, if correct, be given without regard 
 to the amount of e\*idence to which they apply. Griel vs. Marks, 
 51 Ala., 5GG; State vs. Gibbons, 10 la., 117; Kendall vs. Brown, 
 74 111., 232. 
 
 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 the 
 jury, as the party asking the instruction is entitled to the benefit 
 of whatever inference the jury may think proper to draw from 
 the proof, however slight. Peoria Ins. Co. vs. Anapoio, 45 
 111. 87 ; Flournoy vs. Andrews, 5 Mo., 513 ; Camp vs. Phillips, 
 43 Ga., 289.
 
 T II i: 1 It !• < » R M A N D It 10 Q l' I S I T K S . 1 < 
 
 § 14. Must not Assume Facts not Admitted. — It is tlie province of 
 the court to instruct the jury as to tlu; htw of the case, and tliut 
 of the jury to iiiid the facts proved hy tlie evidence. It is error 
 for the court, in n-ivini;; an instruction, to assume that facts have 
 liceu proved, or that a certain state of facts exist. IIuhhM vs. 
 Minteer, 83 Ilh, 150; Stier vs. The City, etc., 41 la., 353; 
 Siebert vs. Leonard, 21 Minn., 442. 
 
 Instances: "In this case the phiintiff is entitled to recover all 
 damai^es proved to have heen sustained by hini on account oi 
 the trespass coniinitted l)y the defendant on plaintiff's ])rcinises, 
 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, 610; Peck vs. Ritchey, ^^ 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 equallv guiltv." Bond et al., vs. The 
 People, 39 111., 2(5. 
 
 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 atten- 
 tion to the question whether the defendant gave the deceased 
 strychnine with a criminal intent" — held to be erroneous, 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 
 (piestion of intent. Snyder vs. The State, 59 Ind., 105. 
 
 § 15. Facts not Controverted may be Assumed. — Where an instruc- 
 tion assumes the existence of a fact in issue l)y the pleadings, Imt 
 which is admitted by the party objecting in his testimony, and 
 there is no evidence contradicting' such admission, there will be 
 no material error in giving such instruction. Ileartt vs. Rhodes, 
 m 111., 351 ; Weeks vs. Cottingham, 58 Ga., 559. 
 
 If an instruction assumes the 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. Kirhy, 
 74 111., 242; Hughes vs. Monty, 24 la., 499. 
 
 It is often a matter of convenience, and avoids circumlocution, 
 to assume the existence of certain facts al)out which the parties 
 are agreed, and neither party under such circumstances can after- 
 
 2
 
 18 instructions: 
 
 waixls make such assumption a ground of objection to the instruc- 
 tic^n. Martin vs. The People, 13 111., 341. 
 
 An instruction which assumes a certain fact, without leaving 
 the jury to find the same from the evidence, is not erroneous 
 when there is no dispute made as to such fact and it is not denied 
 by either party. CaldivcU vs. Stephens, 57 Mo., 589; Jlanra- 
 han vs. The People, 01 111., 112. 
 
 § 16. Instructions may Assume what the Law Pi'esumes. — ^When the 
 circumstances proved are of such a character that the law itself 
 raises a presumption, the court inay properly instruct the jury 
 to draw such inference. Ilerkelrath vs. Stookey, G3 111., 480. 
 
 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 conclu- 
 sive. Frame vs. Badger, 79 111., 441. 
 
 § 17. When all material Allegations are Proved. — A\Tienever 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 have 
 all been proved, the plaintiff is entitled to recover, unless the 
 defendant has established by a preponderance of evidence somic 
 one or more of the special defenses pleaded. Amer. Cent. Ins. 
 Co. vs. Bothchild, 82 111., 166. 
 
 An instruction which tells the jury, if the plaintiff has made 
 out his case as laid in his declaration, they must find for the 
 plaintiff, is not liable to the objection that it makes the jury the 
 judges of the eifect of the averments in the declaration ; it merely 
 empowers tliem to determine whether the proof introduced sus- 
 tains the averments made in the pleadings, wdiich they may well 
 do. O. <:6 M. Rij. Co. vs. Porter, 92 111., 437. 
 
 § 18. Construction of Contracts. — It is the court, that determines 
 the construction of a contractt. They do not state the rules aiid 
 principles of law by which the jury are to be bound in constru- 
 ing the language which the ])arties have used in making the 
 contract. They give to the jnry as matters of law what the legal 
 construction of the contract is, and this the jury are bound abso- 
 lutely to take. Eijser vs. Weissgerher, 2 la., 463: Lowrij vs.
 
 Til EI U FORM AND REQUISITES, 19 
 
 Megee, 52 Ind., lUT; Kamphouse vs. Gaffner, 73 111., 453; 
 Curtis vs. Martz, 14 Mich., 506. 
 
 AVhat the terms of a contract are (if not in writing) is a f|ues- 
 tion of fact for the jury, but its meanini^ 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 \s,. Foster^ ITAVall., 123; Thomas 
 vs. Thomas, 15 13. Men., ITS; 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 certificate 
 was evidence of title in the person to whom it was issued, and 
 that a judgment and execution against such person, together 
 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, 
 57 111., 371 ; State vs. Belong, 12 la., 453 ; Durham vs. Daniels, 
 2 Greene, 518. 
 
 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. Ogden vs. Kirhy, 79 111., 555. 
 
 While instructions should not assume the existence of facts, 
 which must be found by the jury, still it is proper for the court 
 to direct the jury as to the legal effect of documentary evidence 
 admitted. Strihling vs. Prettymnan, 57 111., 371; Hanson vs. 
 Eastman, 21 Minn., 509; Loiory vs. Megee, 52 Ind., 107. 
 
 § 19. Should be Conflnedto the Issues Being Tried. — The instruc- 
 tions of the court should be restricted to the issues made by the 
 pleadings, and to the evidence. Nollen vs. Wlsner et al., 11 
 la., 190; Iron Mount. Bank vs. Murdoch, G2 Mo., 70. 
 
 When the declaration alleges the personal negligence of the 
 defendant as the gi-ound 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. R. R. Co. \s. 
 Mock, 72 111., 141; Oolum., C. k- /. R. R. Co. vs. Troesch, m 
 111., 545.
 
 20 instructions: 
 
 When the plaintiff dechires upon a completed sale, it is erro- 
 neous for the court, in instructing for liini, to submit to the jury 
 the question of an executory contract of sale. SecJcel vs. Scott, 
 oO 111., 106. 
 
 In an action on a warranty it would be error for the court to 
 instruct the jury as to what acts constitute fraud. Wallace vs. 
 Wren, 32 111., 140. 
 
 Where in an action upon an alleg-ed express contract, evidence 
 was introduced without objection, putting the fact of such con- 
 tract in issue, it was held not to be error to instruct the jury with 
 reference to an express contract, even though the pleadings put 
 in issue an implied contract only. Bogers vs. Millard, 44 
 la., 466. 
 
 § 20. 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; 
 mil vs. Canfield, 56 Penn. St., 454; Howe S. Mch. Co. vs. 
 O. Laymen, 88 111., 39; Atkins vs. B'icholson, 31 Mo., 488. 
 
 An instruction is properly refused when there is no evidence 
 tendino- to prove the hypothetical state of facts to which it re- 
 lates. ^ C, B. & Q. B. R. Co. vs. Dickson, 88 IlL, 431. 
 
 It is error to give an instruction denying a party's right upon 
 an assumed state of facts not shown by the evidence, and calcu- 
 lated 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. Cachelin, 27 Mo., '^Q', Frantz 
 vs. B.OSC, 89 111., 590; SioarJc vs. Mchols, 24 Ind., 199; Bogle 
 vs. Kreitzer, 46 Penn. St., 465. 
 
 An instruction, in an action of trespass for an assault and bat- 
 tery, that the jury is the sole judge of the amount of damages 
 that the plaintiff should recover, without stating that the dama- 
 ges should be estimated from the evidence, is erroneous. 3[ar- 
 tin 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
 
 TJl EI li FORM AND REQUISITES, 21 
 
 to warrant such an instruction. Waldron vs. Marcier^ 82 111., 
 550; Wenger vs. Calder, 78 111., 275. 
 
 It is error to tell the jury that it is their duty to assess dam- 
 ages if they believe certain facts. "Whether a plaintiff has sus- 
 tained damage, and if so, how much, is a question to be deter- 
 mined by the jury; and it is proper 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 N. W. Ihj. Co. vs. Chinholm, 79 111., 584 
 
 § 21. One Instruotion May be Limited by Others. — Although an 
 instruction, considered by itself, is too' general, yet if it is prop- 
 erly limited by others given on the other side, so that it is not 
 j)robable it could have misled the jury, judgment will not be 
 reversed on account of such instruction. Carrington vs. P. M. 
 S. S. Co., 1 Cal., 475; Edwards vs. Cary, 60 Mo., 572; Ken- 
 dall vs. Brown, 86 111., 387; Skiles vs. Caruthers, 88 111., 458. 
 
 § 22. Should be Considered Altogether. — 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 stat- 
 ing the law correctly is qualified by others, so that the jury were 
 not likely to have been misled, the error will be obviated. 
 Toledo, W. and W. R. W. Co. vs. Ingraham, 77 111., 309. 
 
 A charge to the jury must be taken together, and it is not 
 necessary to insert in each separate instruction all the exceptions, 
 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 qualifica- 
 tion, provided the defects be cured in other instructions. Rice 
 vs. The City, etc., 40 Iowa, 638 ; The State vs. Maloy, 44 Iowa, 
 104. 
 
 § 23. 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 merelv for the reason that there is error found
 
 22 instructions: 
 
 ill the instruction. Lundy vs. Pierson, 83 111., 241; Burling 
 vs. III. Cent. Ed. Co., 85 111., 18; Phillips vs. Ocmtdgee, etc., 
 55 Ga., 633. 
 
 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; 
 Cook et al. vs. Eohinson, 42 Iowa, 474. 
 
 Must be Construed in Connection witli the Evidence. — A charge given 
 by the court must be construed in connection with the evi- 
 dence in the case. It is sufficient if the instructions are correct 
 when considered with reference to the case upon trial and 
 the facts sought to be established. State vs. Downer, 21 Wis., 
 275; Huffman vs. Ackley, 34 Mo., 277. 
 
 § 24 When Error will Reverse. — When a case is close in its facts, 
 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., Ey. Co. vs. ShucJcman, 
 50 Ind., 42; Wahash Ed. Co. vs. TIen7.:8, 91 111., 400. 
 
 An instruction which has a tendency to, and probably did, 
 mislead the jury when taken singly, is erroneous, even though 
 the instructions, when taken together, embrace the law of the 
 case. Price vs. Mahoney, 24 Iowa, 582 ; Pittsburg, etc., Ey. 
 Co. vs. Krouse, 20 Ohio St., 223. 
 
 § 25. Should he Harmonious. — The giving of a correct instruc- 
 tion upon a point in the case, will not obviate an error in an 
 instruction on the other side, when they are entirely varient and 
 there is nothing to show the jury which to adopt. III. Linen 
 Co. vs. Hough, 91 111., 63; Vanslyck 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 cal- 
 culated to confuse and mislead the jury. Quinn vs. Donovan, 
 85 111., 194. 
 
 Where one instruction states the defendant's liability more 
 strongly than the law warrants, and another of the series states
 
 TnEIIi FORM AND KEQUISITES. 23 
 
 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. The People^ 
 95 in.. 383. 
 
 § 26. Instructions must Require the Jury to Believe from the Evidence. 
 
 An instruction Avdiich does not requii-e the jury to "believe from 
 the evidence" the facts assumed in it, is objectionable even if 
 the law in the instruction is correctly stated. Parker 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 iirst part 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. Witzel^ 82 111., 322, 
 
 It is error to instruct the jury that it is necessary for the 
 plaintiif to prove a material fact, or that it should be made to 
 apj^ear 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., 95 111., 25. 
 
 § 27. Instinictions Need Not be Repeated, When. — AYlien 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 different instructions 
 varying only in form. The court is not only under no obliga- 
 tion to permit a case to be argued through instructions, but it is 
 bound to prohibit it. Anderson vs. Walter, 34 Mich., 113; 
 Keeler vs. Stuj)pe, 86 111., 309. 
 
 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. 
 
 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 \^. The City of Burlington, 42 la., 315; Scott 
 vs. Delaney, 87 111., 146.
 
 24 instructions; 
 
 § 28. Instructiu^ as in Case of Nonsuit. — It is not the province of 
 the court to decide upon the sufficiency of the testimony per- 
 taining; to the facts in the case, nor to order the jury upon the 
 facts to find for either party. Oleson v?^. Ilemlrickson, 12 la., 
 222; Rohl)iso)i vs. III. O. I?. R. Co., 30 la., 401. 
 
 It is the settled practicje never to instruct the jury as to the 
 weight of evidence. When conllicting, or tending to prove the 
 issue, however slightly, it must be left to the consideration of 
 the jurv. But when it essentially varies from the pleadings 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 instructing the jury to 
 find for the defendant, as either course produces the same result. 
 House vs. Wilder, 47 111., 510. 
 
 Where there is any one essential allegation of a declaration 
 which has no proof 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 sup- 
 port such essential allegation, and, for want of such proof, to 
 find for the defendant. Whether there is any evidence tending 
 to prove any material allegation of a declaration is a question of 
 law for the court to determine. Poleman vs. Johnson, 84 
 111., 269. 
 
 Contra — When there is no conflict in the evidence, the court 
 may direct the verdict or order a nonsuit. Greening vs. Bishop, 
 39 Wis., 552; Johnson vs. Moss, 45 Cal. 515. 
 
 § 29. Error in Admitting: Evidence, Obviated By. — If incompetent 
 evidence is permitted to be introduced, which the court after- 
 wards instructs the jury not to consider, no prejudice is wrought 
 by its introduction. Cook et al. vs. Rohinson, 42 la., 474. 
 
 When Not Obviated By. — An error in the admission of evidence 
 is not obviated by an instruction to disregard such evidence, un- 
 less the case is such that it clearly appears no injustice or wrong 
 has been done to the party complaining. Howe, etc., Co. vs. 
 Rosine, 87 111., 105. 
 
 Effect of Evidence, Limited By. — If evidence is admitted compe- 
 tent for one purpose which nuiy have an improper effect, the
 
 TIIEIU FORM AND REQUISITES. 25 
 
 party aggrieved should ask an instruction explaining its legitimate 
 effect. Prior vs. White, 12 III, 261; Allison vs. C. dd iV. W. 
 R. E. Co., 42 la., 274. 
 
 Evidence admitted without objection cannot be excluded from 
 the consideratio!! of the jury by instructions. Becker vs. Becker, 
 45 la., 239. 
 
 § 30. The Jury May Come in for Further Instructions. — A jury 
 may be called into court for further instructions, either by agree- 
 ment of counsel, or at their own request. State vs. Pitts, 11 
 la., 343 ; Zc6 vs. Quirk, 20 III, 392; O' Shields vs. State, 5 li 
 Ga., 696. 
 
 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. Barlow, 
 16 111., 39. 
 
 § 31. The (firing 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 be necessary to meet the difficulties in their minds. 
 State vs. Pitts, 11 la., 343; Hogg vs. State, 7 Ind., 551. 
 
 A fresh discussion of the law or the evidence, on the j)art 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 party. 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 instruc- 
 tions in the absence of a party. Davis vs. Fish, 2 G. Gr., 447 ; 
 O^ Connor ys,. Guthrie et al., 11 la., 80; Campbell vs. Beckett^ 
 8 Ohio State, 210. Hoherg vs. State, 3 Minn., 262. 
 
 § 32. Court May Limit the Time for Instructions. — Circuit courts 
 have the power, by reasonable and proper rules, to prescribe 
 within what time during the progress of the trial, the instructions 
 must be presented to the court. Prindiville vs. The People^ 
 42 111., 217.
 
 26 instructions: their form and requisites. 
 
 § 33. In (.'runinal Cases the Jury are the Judges of the Law as well as of 
 the Facts of the Case.— In some states. — While it is true, in the fullest 
 sense, that a jury, in a criminal case, are the 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 innocence of the prisoner, giving him the benefit 
 of all reasonable doubts, without any reference to the possible 
 future action of the court. Hdk vs. The Peojple^ 42 111., 331; 
 Schnier vs. The People, 23 111., 17. 
 
 In the case of Schnier vs. The People, the court qualified the 
 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 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 \q. The People, 76 111., 211.
 
 PAET II. 
 
 Instructions in Civil and Crinn- 
 inal Cases.
 
 PART II. 
 
 INSTRUCTIONS 
 
 CREDIBILITY OF WITNESSES— WEIGHT OF TESTIMONY. 
 
 The Credibility <>f the Witnesses and the Weif?lit of the Testimony are 
 (Questions of Fact for the Jury. — The court iiistriK'ts the jury, that 
 the credibility of the wituesses is a question excbisively for the 
 jury; and the hiw is, that where a number of witnesses testify 
 directly opposite to each other, the jury are not bound to regaivl 
 the weif>;lit of the evidence as evenly balanced. The jury liavo 
 a right to determine froui the appearance of the witnesses on 
 the stand, their manner of testifying, their apparent candor aud 
 fairness, their apparent intelligence or lack of intelligence, aud 
 fi-om all the other surrounding circumstances appearing on the 
 trial, which witnesses are the more worthy of credit, and to give; 
 ci-edit accordingly. Wallace vs. State, 28 Ark., 531 ; Jlolloway vs. 
 Com., 11 Bush, ;U4; Stampofski vs. Stefens, 79 111., '30:]. 
 
 That the jury ai-e the judges of the credibility of the witnesses, 
 and of the weight to be attached to the testimony of each and 
 all of them; and the jury are not bound to take the testiuiony of 
 any witness as absolutely true, and they should not do so, if they 
 are satisfied from all the facts and circumstances proved on the 
 trial, that such witness is mistaken in the matters testified to by 
 him, or that, for any other reason, his testimony is untrue or 
 uui-eliable. 
 
 The jury are instru(tted, that they are the judges of the credit 
 that ought to be given to the testimony of the different wit- 
 nesses, and they are not bound to believe anything to be a fact 
 because a witness has stated it to be so — provided the jury 
 Ijclieve, from all the evidence, that such witness is mistaken or 
 hus knowingly testified falsely.
 
 30 CREDIBILITY or witnesses: 
 
 Circumstances Affecting the Credit of .1 Witness. — The jury are in- 
 structed that, in determinino- the weio-ht to be ij-iven to the testi- 
 monyof the different witnesses in this case, the jnry 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 lias been sliown ; their de- 
 meanor 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. Ammennan vs. Teeter, 49 111., 400. 
 
 In determining the issues in this case, the jury 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 the jury think they are entitled to. 
 And in determining the weight to be given to the testimony of 
 the several witnesses, the jury should 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 contradict 
 such witnesses, if any such are proved. Evans vs. Lipscomb, 
 
 31 Ga., 71; French vs. Millard, 2 Ohio St., 44. 
 
 The court instructs the jury, that in passing upon the testi- 
 mony of the witnesses for the defendant, the jury 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 they think it 
 entitled to, under all the circumstances proved on the trial. 
 
 If the jury 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 the jury 
 in determining the degree of weight which ought to be given to the 
 testimony of such witness ; and in such case the jury have a right to 
 judge of the effect, if any, li^.iely to be produced upon the 
 human mind by such feelings or motives, and how far such
 
 ■WEIGHT OF TESTIMONY. 31 
 
 feelings or motives, on tlie pai't of a witness, may tend to warp 
 his judgment or pervert the truth; and tlie jnry, after applying 
 their own knowledge of human nature, and of tlie philosojdiy 
 of the human mind, to the investigation of the subject, are to 
 judge of the weiglit which ought to l)e given to tlie testimony 
 of such witness, taking the same in connection with all the other 
 evidence in the case. 
 
 That when witnesses are otherwise equally credible, and their 
 testimony otherwise entitled to equal weight, greater weiglit and 
 credit should be given to those whose means of information 
 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. 
 
 In weighing the testimony of any or either of the witnesses 
 in this case, the jury may regard the apparent capacity and 
 intelligence of such witness, and judge from the evidence, 
 whether he was able to see and understand the transaction, and 
 also whether he was attentive or careless, or apparently preju- 
 diced or dispassionate; and also whether, judging from the 
 evidence, he has any sinister motive that might lead him to 
 fabricate that which he did not see. People vs. Bodine, 1 Edm. 
 Sel. Cas., 36. 
 
 One Credible Witness may be Entitled to More Credit than a Number of 
 Others. — The court instructs the jury, that the testimony of one 
 credible witness is entitled to more weight than the testimony of 
 many others, if as to those other witnesses the jury have 
 reason to believe, and do believe, from the evidence and all the 
 facts before them, that such other witnesses have knowingl}'^ 
 testified untruthfully, and are not corrol)orated by other credible 
 witnesses, or by circumstances proved in the case. 
 
 The Jury have no Right to Disregard the Testimony of any TTitness 
 without Cause. — The jury are instructed, that if the testimony 
 of a witness appears to be fair, is not unreasonable, and is 
 consistent with itself, and the witness has not been in any 
 manner impeached, then tlie jury 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 evidence
 
 32 CREDIIULITY OF WITNESSES! 
 
 and to render their verdict in accordance with the weight of 
 all the evidence in the case. City Bank, etc., vs. Kent, 57 Ga., 
 283; Smith vs. Grimes, 43 la., 35G; Boclford, E. I. cfc St. L. 
 Ed. Co. vs. Coultars, G7 111., 398. 
 
 That 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 the sworn duty of the jury 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 pre- 
 sumption that each witness has intended to speak the truth, 
 unless by their manner of testifying on the witness stand, or by 
 inconsistent statements sworn to, or by testimony inconsistent 
 with other credible evidence in the case, the jury are led to 
 believe that the testimony of some one, or more, of the wit- 
 nesses is untruthful or unreliable, or unless the jury are led to 
 believe, from a manifestation of interest, bias, or prejudice, that 
 such witness 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. 
 
 When 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 introduced 
 by the respective parties ; but the jury are at liberty to disregard 
 the statements 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 neigh- 
 borhoods where they live-/-except 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 IlL, 418. 
 
 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 different pai-ts of the 
 testimony if possible. It is only in cases where it is palpable 
 that a witness has, deliberately and intentionally, testified falsely
 
 WEIGHT OF TESTIMONY. 66 
 
 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 nntruth, or that the jury would have the 
 right to reject his entire testimony. 
 
 It is the duty of the jury to consider carefully all the testi- 
 mony in this case bearing npon the issues of fact submitted to 
 them, and if possible, to reconcile any and all apparently con- 
 flicting statements of the witnesses, and if the jury find it prac- 
 ticable to deduce from the evidence any theory of the case 
 which will harmonize the testimony of all the witnesses, it will 
 be the duty of the jury to adopt that theory, rather than one 
 which would require them to reject any of the testimony as in- 
 tentionally false. Rudolph vs. Lane^ 57 lud., 115. 
 
 The jury are further instructed, that if, after a full and fair 
 consideration thereof, they shall be unable to reconcile the state- 
 ments of all the witnesses in relation to the matters pertinent 
 to the issues submitted to the jury, then it will be their duty to 
 consider on which side is the preponderance of evidence, and to 
 find their verdict in accordance therewith. 
 
 Impeachment of TVitnesses. — If the jury believe, from the evi- 
 dence, that the witness A. B. has been successfully impeached 
 on this trial, or that he 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, T4: 111., 418; Gill vs. Crosby, 03 111., 190. 
 
 Willfully Sweai-in^ Falsely. — If the jury believe, from the evi- 
 dence, 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. 
 
 3
 
 34: CREDIBILITY OF WITNESSES.* 
 
 Bad Reputation for Truth, Etc. — The court further instructs the 
 jury, that if they l)elieve from the evidence that the witness A. 
 B. is a person of had reputation for truth and veracity in the 
 neighborhood where he resides, then as a matter of hxw this fact 
 tends to discredit his testimony, and the jury may entirely dis- 
 regard it, except in so far as he is corroborated by other credible 
 testimony, or by facts and circumstances proved on the trial. 
 
 The court instructs the jury, that one of the modes recognized 
 by law for impeaching the veracity of a witness, is the intro- 
 duction of persons as witnesses who testify that they are 
 acquainted with the general character for truth and veracity, of 
 the person sought to be impeached, in the neighborhood in 
 which he resides; and if the jury believe, from the evidence in 
 this case, that the character 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, except where it is corroborated by other 
 credible evidence, or by facts and circumstances proved on the 
 trial. 
 
 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 tlie jury believe, from the 
 evidence, that the witness, A. B., has made statements at another 
 time and place at variance with his evidence in this case, regard- 
 ing any material matter testified to by him, tlien it is the prov- 
 ince of the jury to determine to what extent this fact tends to 
 impeach, either his memory or his credibility, or detracts from 
 the weight which ouglit to be given to his testimony. Craig/ 
 vs. Rohrer, G3 111., 325; Glaze vs. W/diley, 5 Oreg., 164. 
 
 Tliat the credit of a witness may be impeached by proof that 
 he has made statements out of court contrary to what he has 
 testified on the trial, and if the jury 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 mate- 
 rial matter, then these contradictory statements would tend to 
 impeach the witness, and the jury would be justified in reject-
 
 WEIGHT OF TESTIMONY 
 
 35 
 
 ing his testimony if, from all the other evidence in the case, they 
 believe such testimony to be untrue. 
 
 Contradictory Statements Out of Court.— If the jury believe, from 
 the evidence, that the witness A. B., before testifying in this 
 case, has made any statements out of court concerning any of 
 the material matters, materially different and at variance with 
 what he has stated on the witness-stand, then the jury are in- 
 structed by the court that these facts tend to impeach either the 
 recollection, or the truthfulness of the witness, and the jury 
 should consider these facts in estimating the weight which 
 ought to be given to his testimony. 
 
 Jury Need Not Disregard Testimony of Impeached Witness. — Notwith- 
 standing witnesses may be discredited by impeaching evidence, 
 their testimony ought not to be wholly disregarded if it is sustained 
 by the corroborating evidence of circumstances, or of other cred- 
 ible w^itnesses. Smith et al. vs. Grimes et al.^ 43 la., 356. 
 
 The court instructs the jury, that while the 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 ; still the degree of credence to which such a witness is en- 
 titled, and the weight to be attached to his testimony, are matters 
 to be determined by the jury and by them alone, in view of all 
 the evidence and of all the facts and circumstances proved on 
 the trial. 
 
 And in this case, if you believe from the evidence that the 
 witness A.>B., while upon the witness-stand, gave a fair, candid 
 and honest statement of the facts and circumstances surround- 
 ing the transaction in question, then the jury should not dis- 
 regard his testimony, but they should give it such faith and 
 credit as in their opinion it is entitled to. 
 
 The testimony of a witness who has been impeached ought 
 not to be wholly disregarded by the jury if they feel justified, 
 from his deportment upon the stand, or the probability of his 
 testimony, in believing it, even if it receives no other corrobora- 
 tion. Green vs. Cochran^ 43 la., 544.
 
 86 CKEDIBILITYOFWITXESSES: 
 
 Contradictory Statements Out of Court Explained. — The court in- 
 structs the jury, that if they believe that the witness A. B., out 
 of court and not under oath, stated to the defendant and others, 
 that ho knew nothing about the matter, etc. — and that the de- 
 fendant had tohl him nothing, and that the witness, wlien under 
 oath, stated that his reason for so saying was, because he 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 evi- 
 dence given on the trial. 
 
 ^ Pi-eponderance 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 particular 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 the 
 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 probability or improbability of the truth 
 of their several statements, in view of all the other evidence, 
 facts and circumstances proved on the trial ; and from all these 
 circumstances determine upon which side is the weight or pre- 
 ponderance of the evidence. Mayor vs. Mead, 83 111., 19; 
 Wliittaker vs. Parker, 42 la., 585. 
 
 ~- The court instructs the jury as a matter of law, that where 
 two witnesses testify directly opposite to each other on a mate- 
 rial point, and are the only ones that testify directly to the 
 same point, the jury are not bound to consider the evidence 
 evenly balanced or the point not proved; the jury may regard 
 all the surrounding facts and circumstances proved on the trial, 
 and give credence to one witness over the other, if they think 
 such facts and circumstances warrant it. Miller vs. BaUhasser, 
 78 111., 302; Durant vs. Rogers, 87 111., 508; Lawrence vs.
 
 WEIGHT OF TESTIMONY. 37 
 
 Maxwell, 58 Barb., 511; Delvee vs. Boardman, 20 la., 446; 
 Johnson vs. Whidden, 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 the jury in determining the prepon- 
 derance of the evidence, or either side. Rudolph vs. Lane, 57 
 Iiid., 115. 
 
 The jury are instructed, that although the preponderance of 
 the evidence is not always determined by the nural)er of wit- 
 nesses testifying in a case, yet, if in a case there are only one or 
 two witnesses who testify to a given state of facts, and six or 
 seven witnesses of equal candor, fairness, intelligence and truth- 
 fulness, and equally well corroborated by 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. 
 
 The jury are instructed, that it does not necessarily follow that 
 a plaintiff has failed to establish his case (or a defendant his de- 
 fense) by a preponderance of proof, because he has testified to 
 a state of facts wnich are denied by the testimony of the de- 
 fendant. In such a case, in arriving at the truth, the jnry have 
 a right to take into consideration every fact and circumstance 
 proven on the trial, such as the situation of the parties, their 
 acts at the time of the transaction, and afterwards, so far as they 
 aippear in evidence; their statements to third parties in relation 
 to the matters in question, as well as their statements to each 
 other in the presence of third parties, if any such statements 
 have been proved, as well as their appearance on the witness- 
 stand, and their manner of testifying in the case. 
 
 When a witness swears that a certain conversation did take 
 place (or to a certain state of facts), and another equally cred* 
 ible witness, with equal opportunities for knowing, testifies 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 conversation (or
 
 J 
 
 38 CREDIBILITY OF witnesses: 
 
 alleged state of facts) cannot be regarded as proved by a pre- 
 ponderance of evidence. State vs. Gates, 20 Mo., 400. 
 
 If the jury believe, from the evidence, that the plaintiff has 
 sworn positively that the defendant, etc. — and that the defendant 
 has sworn just as positively that he did not, etc. — and if the jury 
 further find, from the consideration of all the evidence in the 
 case, that the testimony of defendant is entitled to as much 
 credit as that of the plaintiff, and corroborated to the same ex- 
 tent, then, so far as that point is concerned, the jury should find 
 for the defendant. 
 
 Negative Evidence, "What Is Not. — The court instructs the jniw^ 
 that when one or more witnesses testify to being present upon 
 any occasion, and that certain facts then took place (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 occa- 
 sion, and that such fact did not take place (or that the alleged 
 words were not spoken), then the testimony of the latter wit- 
 nesses is not what is known as negative testimony, but it is en- 
 titled to be regarded by the jury as affirmative testimony; and in 
 such a case it is the duty of tlie jury to weigh all the testimony 
 and give a verdict as the weight may preponderate to the one 
 side or other. Sohey vs. Thomas, 39 Wis., 317; Frizell vs. Cole, 
 42 111., 362. 
 
 Proof as to Dates, Testimony as to, Corroborated. — The jury are in- 
 structed, 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 testimony, then the jury should 
 give credit accordingly. 
 
 r 
 
 IJnrdeii of Proof. — The jury are further instructed, that the bur- 
 den of proof in this class of cases is always upon the party 
 holding the aflirmative ; and any matter asserted by one party
 
 ■VVKKillT OF TESTIMONY. 6\J 
 
 and denied by the other, can only be proved in law by a pre- 
 ponderance of the evidence; and in this case, if the jury find 
 from tlie evidence that the plaintiff has proved the alleged con- 
 tracts by only one witness, and that the contract has been de- 
 nied by one witness of equal credibility and means of knowl- 
 edge, then as a matter of law such contract has not been jH'Oved, 
 unless in the minds of the jury there have been facts or circum- 
 stances proved corroborating the plaintiff's witness sufficient to 
 outweigh the testimony on the part of the defendant. 
 
 The court instructs the jury, ais a matter of law, that the 
 burden of proof is upon the plaintiff, and it is for him to prove 
 his case by a preponderance of the evidence. If the jury find 
 that the evidence bearing upon the plaintiff's case is evenly bal- 
 anced, or that it preponderates in favor of the defendant, then 
 the plaintiff cannot recover, and the jury should find for the 
 defendant. 
 
 Parties. — The jury are instructed, that while our statute ren- 
 ders parties to a suit competent witnesses, and allows them to 
 testify, still the jury are the judges of the credibility and weight 
 of such testimony; and in determining such weight and credi- 
 bility, the fact that such witnesses are interested in tlie 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 cir- 
 cumstances of the case, and in view of the interest of such wit- 
 nesses. 
 
 The court instructs the jury, as a matter of law, that while 
 the statute of this state authorizes 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 be made against him because he does not 
 testify in his own favor. Zoioe vs. Massey, 02 111., 47. 
 
 Testimony of the Parties to be Weighed by Jury. — The court in 
 structs the jury, that while the law makes the defendant (or 
 plaintiff) a competent witness in this case, yet the jury have a 
 vio-lit to take into consideration his situation and interest in the 
 
 C3
 
 40 CREDIBILITY OF WITNESSES : 
 
 result of your verdict, and all the circumstances which surround 
 him, and give to his testimony only such weight as in your judg- 
 ment it is fairly entitled to. 
 
 Corporations— Witnesses for, How Regarded. — The jury are in- 
 structed that they have no right to disregard the testimony 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 wit- 
 nesses should be judged of, by the jury, precisely the same as 
 they judge of the credibility of other witnesses. / 
 
 Snits Against, to be Tried tlie Same as Otliers. — It is the imperative 
 duty of the jury to try this cause and to decide it precisely the 
 same as they wT)uld 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 con- 
 sidering 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 find their verdict accordingly with- 
 out any reference to who is plaintiff or who is defendant. 
 
 Verbal Admissions, How Weig:lied. — The court instructs the jury, 
 that although parol proof of the verbal admissions of a party 
 to a suit, when it appears that the admissions were understand- 
 ingly 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 received by the jury 
 with great caution, as that kind of evidence is subject to much 
 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 
 happens that the witness, by unintentionally altering a few of 
 the expressions really used, gives an effect to the statement com- 
 pletely at variance with what the party did actually say. But it is 
 the province of the jui'y to weigh such evidence and give it the 
 consideration to which it is entitled, in view of all the other 
 evidence in the case. Martin vs. The Toicn, etc., 40 la., 300; 
 Savcland vs. Green, 40 Wis., 431; Mauro vs. Piatt, Q^IW., 
 450.
 
 WEIGHT OF TESTIMONY. 41 
 
 The jury 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 weakest class of testimony, depending 
 upon the surrounding circumstances. 
 
 If the jury can see, from the evidence, that the alleged ad- 
 missions were clearly and understand ingly 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 misinformed, or may not 
 have expressed his own meaning clearly and understandingly, 
 or that the witness may have misunderstood him, or that the 
 witness had no reason or motive for remembering the exact 
 language used, or where, 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. 
 
 Admissions, All to be Considered Together— Tlie Surj may Believe Part 
 and Reject Part. — The jury are instructed, that the rule of law, 
 that the whole of a declaration, or an alleged confession, must 
 all be taken together by the jury, and considered by them, does 
 not mean that the jury must believe it all, if they acicept 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 statements 
 should be carefully weighed, and considered by the jury, in the 
 light of all the surrounding circumstances appearing in evi- 
 dence — tlfe motives which may have induced it — its consistency 
 with the other evidence; and the jury, without capriciously or
 
 42 CREDIBILITY OF WITNESSES! 
 
 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. Eiland vs. The State^ 
 52 Ala., 322; State vs. Hollenscheit, 61 Mo., 302. 
 
 Admissions to be Taken Alto^etlier— How to be Weighed. — The ad- 
 missions of a party, when proved, are evidence against him, and 
 although such admissions are to be taken together as a whole, 
 the jury are not 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, inconsistency, contradiction or 
 corroboration, by otlier 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. 
 
 When Party 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 induced by them to alter his con- 
 dition ; in which case, as to such persons, or those claiming under 
 them, he is estopped from disputing the truth of his admissions; 
 but he is not estopped as to other persons who have not acted 
 upon the faith of such admissions. Bay vs. Bell, 2-1 111., 441:. 
 
 The court further instructs the jury, 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. lie 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, he will not be bound 
 by them — unless it appears from the evidence that the opposite 
 party, or those under whom he claims, have acted upon such 
 admissions and altered his or their condition on the faith of 
 such admissions. 
 
 Offer to Compromise, Party not Bound by. — The jury are instructed, 
 that parties have a right to get together and buy their *peace, by 
 making concessions to each other ; and any offer or proposition
 
 WETOIIT OF TESTIMONY. 4:o 
 
 of settlement, if made for that jjiirpose merely, will not he 
 bindino- upon the party as an admission of the amount due or 
 claimed at the time. 
 
 Admissions in Affiilavit for Continuance. — The court instructs the 
 jurv, that the plaintiff, by admitting the statements contained in 
 the affidavit for a continuance, which were read in evidence before 
 you, simply atlinits 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 testi- 
 mony 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, that 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 testimony is not reliable, then the jury have a right 
 to so regard it, and give their verdict as seems to be warranted 
 from all the evidence in the case. 
 
 The court farther instructs the jury, that they 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 which the defendant 
 expected to prove by the absent witness, A. B., precisely to the 
 same extent as if the said A. B. had been here personally present 
 and examined as a witness, and had sworn to the truth of those 
 matters, on the witness-stand. 
 
 The jury are further instructed that they are to give full credit 
 to the matters of fact stated in defendant's affidavit for a contin- 
 uance, as to what he expects to prove by the 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 the jury should give such statements in the affidavit as 
 to what defendant expects to prove, by said witness, all the weight 
 to which they wonld be entitled if such statements had been 
 sworn to by the witness, on the witness-stand, in the presence of 
 the jury.
 
 44: CEEDIBILITY OF WITNESSES*. 
 
 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 bj the jury, 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 disproved by other 
 evidence in the case, or by circumstances proved on the trial, 
 then the jury must take such statement of fact as true. 
 
 Party not Bound by Statements of His Own Witnesses. — The court 
 instructs the jury, that when a party offers a witness and places 
 him on the witness-stand, he thereby represents him in geueral 
 to be worthy of belief; but such party is not thereby precluded 
 from proving the truth of any particular fact by any other com- 
 petent testimony, in direct contradiction to what such witness 
 may have testified to; and this is true not only when it appears 
 that the witness was mistaken, but also when the evidence may 
 coUalerally have the effect of showing that he was generally 
 unworthy of belief. 
 
 Terdict to be Determined 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 speculations or conjectures not 
 supported by the evidence. 
 
 Statements of Counsel. — The jury are instructed, that it is not 
 proper for counsel, in the argument of a case, to state any mat- 
 ter or things bearing upon the questions of fact, and claimed to 
 be within his own personal knowledge, or which niav have 
 been stated to him by others, not witnesses in the case. 
 
 And the juiw are further instructed to disregard all such 
 statements, if any have been made, and to make up their verdict 
 upon the evidence actually given in this case, without placing 
 any reliance upon, or giving any credit to, any statements of 
 counsel not supj)orted by the evidence. 
 
 In determining any of the questions of fact presented in this 
 case, the jury should be governed solely by the evidence intro- 
 duced before them.
 
 AV EIGHT OF TESTIMONY. ' 45 
 
 Note. — It has been hold that it is of doubtful profossional propriety for 
 an attorney to become a witness for his client on the trial of a cause, without 
 first entirely withdrawing from any further connection with the case as 
 attorney; and an attorney occupying the attitude of both witness and attor- 
 ney for his client subjects his testimony to criticism, if not suspicion. Ross 
 el uL, V. Demo88, 45 111., 447; Best on Ev., § 184; 1 Greenlf. on Ev., § 364, 380. 
 
 The court instructs the jury, 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 the jury, simply 
 because he is an attorney testifying in favor of his own client. 
 In such a case, the jury are tlie judges of the weight and credit 
 to which such testimony is entitled. The jury 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 con- 
 tradicted by other evidence in the case, and give to the testimony 
 such faith and credit as the jury believe it entitled to, in view of 
 all the facts and circumstances appearing on the trial. 
 
 The jury are instructed, 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 the jury; and if, from all 
 the facts and circumstances appearing on the trial, the jury ai-e 
 satisfied that the attorney, A. B., from feeling or prejudice, or 
 from devotion to the interests of his client, or for any other 
 reason, has exaggerated or suppressed the truth, or in any man- 
 ner colored his testimony, as to any material matter, then the 
 jury have a right to take such fact into consideration, together 
 with all the other evidence in the case, in determining what de- 
 gree of weight or credit ought to be given to his testimony.
 
 PAET III. 
 
 Instructions in Civil Actions.
 
 ^ 
 
 a> 
 
 PART III. 
 
 IXSTRUCTIOXS IX CIYIL ACTIONS. 
 
 ACCOUNT STATED. 
 
 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 the balance struck is cor- 
 rect, should be made in express terms. If a creditor has rendered 
 his account to the debtor, exhibiting the items thereof, and the 
 amount due thereby, and the account is not objected to by the 
 debtor, witliin a reasonable time, the acquiescence of the debtor 
 pQ therein is to be taken as an admission that the account was truly 
 >Ti Stated. Powell vs. F. R. B., 65 Mo., 658; 1 Greenleaf Ev., 
 ^ sec. 197; Freeland vs. Heron, 7 Cranch, 147; Hayes vs. Kelley, 
 f^ 116 Mass., 300. 
 
 Settlement Presumed to Indude all Items. — If the jury believe, 
 f roittf the evidence, that some time about, etc., the plaintiff and 
 deffetidifnt jmet tosjether, and looked over their accounts for the 
 pui^sp! oil settling the same, and that they then settled and 
 agr^d -iip5g>n a balance due, then the law will presume that such 
 settlement embraced all the items that eacii had against the other 
 that were then due; and in such case it devolves upon the party 
 asserting the contrary to prove, by a preponderance of evidence, 
 that tl}^ item, etc., was omitted by consent of the parties, or by 
 ac(33ent and unintentionally, or by the fraud of the other party. 
 Strauhher vs. Mohler, 80 111., 21. 
 
 Can Only be Opened for Fraud or Mistake. — If the jury believe, 
 from the evidence, that some time on or about, etc., the parties 
 to this suit met and looked over their accounts together, and 
 settled all matters between them, and struck a balance and
 
 50 INSTRUCTIONS 
 
 ao;i'eed upon that as the amount due from one to the other, then, 
 in the absence of mistake or fraud, neither party will be aMowed 
 to go behind that settlement for the purpose of increasing or 
 diminishing the amount so agreed upon. 
 
 The JU17 are instructed, that when two parties have a settle- 
 ment 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 a 
 mistake 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. 
 
 Aceoimt Rendered not Objected to, is Admitted. — Where a party 
 sends, by mail, a statement of account to another with whom he 
 has dealings, w^iich is received, but not replied to within a reasona- 
 ble time, the acquiescence of the party is taken as an admission 
 that the account 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. 
 
 When two parties have running accounts with each other, and a 
 statement of the account is made by one party and submitted to 
 the other, and the latter acquiesces in its correctness, 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 alleging it. 
 
 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 cor- 
 rect, and he will not afterwards be permitted to question its
 
 IN CIVIL ACTIONS. 51 
 
 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. 
 
 May be Opened for Fraud or Mistake. — AUhough the jury may 
 believe, from the evidence, that the plaintiff sent, and the de- 
 fendant 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 the jury further believe, from 
 the evidence, that said accounts of sales contained erroneous 
 charges or false accounts, and that the plaintiff knowingly con- 
 cealed from the defendant the fact of their being erroneous or 
 false, and tliat the defendant did not, and could not, by the exer- 
 cise 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 reference to the 
 matters contained in such statements. 
 
 Contradicting Receipt. — The court instructs the jury, that a 
 receipt is but 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 in- 
 tended to cover that item, or that the item was overlooked, and 
 by the mistake of the parties not included in the settlement 
 when the receipt was given, then the jury^ should find for the 
 plaintiff, as to that item. 2 Pars, on Cont., 555. 
 
 Receipt Pi-iraa Facie Correct. 4-Tlie jury are instructed, that a 
 receipt 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. \
 
 53 INSTRUCTIONS 
 
 ALTERING WRITTEN INSTRUMENTS. 
 
 Material Alteration Renders lustrnnieut Void. — The court instructs 
 the jury, that any material alteration in the terms of a promis- 
 sory 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 
 Icnow of and consent to the alteration at the time it was made, 
 or unless such persons have in some manner subsequently ratified 
 the act. Schnewind vs. Hacket, 54 Ind., 248; Dickerman vs. 
 Miner ^^Z la., 508; Evans vs. Foreman, 60 Mo., 441); Bradley 
 vs. Mann, 37 Mich., 1. 
 
 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 evi- 
 dence, that since the said alteration was made, and with full 
 knowledge of all the facts, the defendant has promised to pay it, 
 then he will be deemed to have adopted the alteration, and will 
 be bound to the same extent as thouo-h the alteration had been 
 made before the note was delivered. Goodsjpeed vs. Cutler, 75 
 in., 534; Evans vs. Foreman, 60 Mo., 449. 
 
 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 and consent, by add- 
 ing the words, etc. — then the said note is void as to him, unless it 
 appears from the evidence that the defendant has, in some man- 
 ner, since the alteration was made, ratified the same, as explained 
 in these instructions. Hamilton vs. Hooper, 46 la., 515. 
 
 The jury are instructed, that it is not every alteration in a 
 written instrument wliicli will render it void against the maker, 
 when done without his consent ; to have that effect the alteration 
 must be a material one, so as to change the terms of the instru- 
 ment; and in this case, although the jury may believe from the 
 evidence that the note in question, since it was made and deliv- 
 ered, and without the consent of the defendant, has been changed 
 by erasing the words, etc. — and inserting, etc. — still this would
 
 IN CIVIL ACTIONS. 
 
 not be a material alteration, and would in no manner affect the 
 liability of the defendant thereon. Burnham vs. Ayer, 35 N. 
 IL, 351. 
 
 If the jury believe, from the evidence, that the (paper) read in 
 evidence by tlie plaintiff, was chani^ed or altered, by inserting 
 the words, etc. — l)y tlie plaintiff, or by any one acting for him, 
 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 altera- 
 tion since it was made. 
 
 And in determining whether such change or alteration has 
 been made, the jury may take into consideration the appearance 
 of the paper, the statement of the w^itnesses, as well as any and 
 all other evidence of any fact or circumstance proved in the case, 
 tending to throw any light upon that question. 
 
 Presnmed to be Made After Execution. — The court instructs the 
 jury, that all material interlineations in a deed are presumed to 
 have been made after the execution of the same, and they ren- 
 der the deed void, unless they are explained by the J^arty claim- 
 ing 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 be- 
 fore 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. 
 
 No Presumption of Law as to When Alteration Was Made. — Where 
 
 an instrument offered in evidence has the appearance of having 
 been altered, as when a portion of it is in a different ink, or 
 handwriting, from the other portions, the law raises no presump- 
 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 determinino- 
 these questions the jury should look at the instrument itself, as 
 well as to all the circumstances in evidence, for an explanation,
 
 -54 INSTRUCTIONS 
 
 and thus determine whether the aUeration was before or after 
 the execution of the instrument, and with or without the con- 
 sent of the maker. MUliken vs. Marlin, GO 111., 13. 
 
 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. 
 
 APPLICATION OF PAYMENTS. 
 
 Debtor May Du-ect— If He Does Not, Creditor May. — The jury are in- 
 structed, that the rule of law is, that a debtor, owing his cred- 
 itor 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 spe- 
 cific appropriation of the money, the law will appropriate it as 
 the justice and equity of the case may require. 2 Parsons on 
 Cont., G29; Bonnell vs. Wilder, 67 111., 327. 
 
 That 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 cred- 
 itor must apply the payment as directed. 
 
 That a debtor, paying money to his creditor, has a right to 
 direct how it shall be applied, and the creditor has no right to 
 disregard the directions of the debtor in that respect. When 
 the debtor directs the application of money at the time of pay- 
 ment, such aj^plication cannot be changed by the creditor with- 
 out the consent of the debtor. Jackson vs. Bailey, 12 111., 159. 
 
 If the jury believe, from the evidence, that at the time of 
 the alleged payments the defendant owed the plaintiff upon two 
 different accounts, both of which were due, and that the defend- 
 ant made payments to the plaintiff without designating the debts 
 to which such payments should be applied, then the plaintiff had 
 the right to make the application to such debt as he saw fit.
 
 IN CI VI L ACTIONS. 5D 
 
 TVlien Xeither the Creditor nor tlie Debtor Makes an .Application of the 
 Payme:it, Then the Law Will Make It. — When a creditor holds two 
 debts against another, and one is secured and the other not, and 
 payments have been made by the debtor, and there is no evi- 
 dence that he directed their application, 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. Stegall, 
 60 111., 380. 
 
 When a debtor owes a creditor several debts, and makes pay- 
 ments, he has a right to direct their application to any one or 
 more of the debts, as he may choose; but if he makes payments 
 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. 
 
 And if the jury 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. Sj>rague et al. vs. 
 HazenwinHe, 53 111., 419; Allen vs. Brown, 39 la., 330. 
 
 ATTACHMENT— PLEA IN ABATEMENT TO AFFIDAVIT. 
 
 About to Depart from the State, Etc. — The court instructs the jury, 
 that the burden of proof is upon the plaintiff to establish affirm- 
 atively, that the defendant was al)Out 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 property from the state, will 
 entitle the defendant to a verdict. JIawJdns vs. AlhrigJd, TO 
 111., 87. 
 
 The court instructs the jury, that in order to sustain an attach- 
 ment on the ground that \\\^. debtor is about to depart from the 
 state, with the intention of having his effects removed from this 
 state, it must appear from the evidence :
 
 56 INSTRUCTIONS 
 
 1st. That the debtor was about to depart from the state ; and, 
 2d, that such departure was with the intention of having his 
 effects removed from the state. 
 
 Wliat is not a Departing ft'om the State. — That to autliorize the 
 issuing of an attacliment against the property of a person, it is 
 not enough that such person has expressed an intention of re- 
 moving from tlie state at some future time, but the jury must 
 believe, from the evidence, that tlte person was, at the time of 
 the issuing of the attachment writ, then about to depart from 
 the state. And in this case, unless the jury believe, 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 the jury, that the simjDle fact of a debtor 
 preparing to depart from the state, with the intention of remov- 
 ing a portion of his effects therefrom, is not of itself a sufficient 
 ground to sustain an attachment ; provided, the jury believe, 
 from the evidence, that there would remain other property of 
 the debtor in this state sufficient to pay his debts, and that there 
 was no intention to withhold the payment of the debt upon which 
 this suit is brought. 
 
 About to Depart fi-om the State— How Proved. — The jury are in- 
 structed, that in order to sustain the attachment writ in this 
 case, it is not necessary for the plaintiff to prove that the defend- 
 ant was about to remove from the state, on the werj day the 
 suit was begun ; it is sufficient, if it appears from the evidence, 
 that the defendant was intending to leave the state with his 
 propei-ty, within so short a time that it would prevent the plain- 
 tiff from collecting his debt by an ordinary suit at law. 
 
 The jury are instructed, that if they believe, from the evi- 
 dence, that the defendant, at tlie date of the suing out of the 
 writ of attachment, was about to depart from this state, with the 
 intention of having his effects removed from this state, then the 
 jury should find the issue, as to the truth of the affidavit, in 
 favor of the plaintiff.
 
 IN CIVIL ACTIONS. Oi 
 
 Intent to Depart— How Shown. — The jury are fiirtlier instructed. 
 that a party's intention to depart from the state, and to remove 
 his property therefrom, can only be shown by his acts and state 
 ments, and a party will be presumed to have intended what 
 such acts and statements fairly and reasonably imply. 
 
 And in this case, if the jury 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 reason- 
 ably showed an intention on his part, at that time, to remove from 
 the state, with the intention of having his effects removed there- 
 from, to the injury of his creditors, the jury should find for the 
 plaintiff. 
 
 Attachment on the (iround of Fraud. — That the only issue for 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, con- 
 ceal, or otherwise dispose of his property, so as to hinder or 
 delay his creditors in the collection of their debts. 
 
 That 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 the 
 jury 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, the 
 jury should find the issues for the defendant. 
 
 That 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 
 dishonest purpose, 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 the 
 jury would be warranted in finding a verdict for the plaintiff, 
 upon the issue of the truth of the affidavit, they must believe, from 
 the evidence, that the defendant, at the time the attachment 
 writ was sued out, was about to fraudulently assign, conceal, or 
 otherwise dispose of his property, so as to hinder or delay his 
 creditors.
 
 58 INSTRUCTIONS 
 
 COMMON CARRIERS OF PASSENGERS AND BAGGAGE 
 
 Coiiunon Carrier Defined. — If the jury believe, from the evi- 
 dence, that the defendant corporation was engaged in the bnsi- 
 ness of transporting passengers and freight, for liire, upon a 
 railroad operated by said company, then the law denominates 
 the defendant a common carrier. 
 
 Injury Prima Facie Evidence of Negligence. — If the jnry believe, 
 from the evidence, that the plaintiff received an injury while 
 riding on the cars of the defendant, by reason of a collision of 
 said cars with other cars, and while he was himself using all reason- 
 able care and cantion to avoid injury, as charged in the declara- 
 tion, then these facts will make a prima facie case of negligence 
 against the defendant; and the burden of proof will be on the 
 <lefendant to show that it, by its agents and servants, did nse all 
 reasonably practicable care and precaution to prevent such 
 injury. Sher. & Red. on Xeg., § 268; Edwd. on Bail, § 711; 
 Cooley on Torts, GG3. 
 
 If the jury believe, from the evidence, that the plaintiff was 
 a passenger on board the cars of the defendant, \n the month of 
 
 last, and that those cars came in collision with another 
 
 train of cars, by and through the negligence of the defendant's 
 agents or servants, as charged in the declaration, and that by 
 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 the jury should iind a 
 verdict for the plaintiff, and assess his damages. C. B. d: Q. 
 B. B. vs. George, 19 111., 510. 
 
 If the jury believe, from the evidence, that the plaintiff wns 
 a passenger on board the defendant's cars, and was injured by 
 means of an accident occurring on the railroad of the defendant, 
 while the plaintiff was exercising all reasonal)le care and caution 
 to avoid the injury, as charged in the declaration, then the bur- 
 den of showing that such accident was not the result of the 
 negligence or lack of skill of the defendant, or its agents, is 
 cast upon the defendant. Snlliva7i\&. Philadelphia, etc., Rd. 
 Co., 30 Penn. St., 234; Meier vs. Penn. Rd. Co., 6-i Penu. St., 
 225 ; Boyce vs. Cal. Stage Co., 25 Cal., 460.
 
 IN CIVIL ACTIONS. 50 
 
 If the jury believe, from the evidence, that the plaintiff was 
 injured, by the overturning of the car in which he was a pas- 
 senger (or by a collision of the cars, etc.), and was thereby injured, 
 without any fault upon his part, he thereby makes out a prima 
 facie case of negligence against the company, 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 exercise of all reasonable care, vigi- 
 lance and foresight on behalf of the company. P. C. ch II. L. 
 It. H. Co. vs. Thompson, 56 111., 138. 
 
 The court instructs the jury, that where a railway car is 
 thrown fj'ora the track, and the passenger for hire is thei-eby 
 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 
 sliow, by a preponderance of the evidence, that it was not negli- 
 gent in any of these respects. P. P. <J& J. P. P. Co. vs. Pet/- 
 
 nolds, 88 ill., 418. 
 
 [See Part I., Sec. 19.] 
 
 If the jury believe, from the evidence, that at the time in 
 question the plaintiff was a passenger on board of defendant's 
 cars, and that he received an injury, as alleged in the declara- 
 tion, and that he was himself, at the time, exercising all reasona- 
 ble care and caution to avoid the injury; and if the jury further 
 believe, from the evidence, that the accident and injury com- 
 plained of hajopened by reason of the negligent and unskillful 
 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 ti'ain on which 
 tlie plaintiff was a j)assenger, then the jury should find a verdict 
 for the plaintiff. 
 
 Degree of Care Keqnii'ed of the Carrier of Passengers. — The court 
 instructs the jnry, that common carriers of jDersons are required 
 to do all that human care, vigilance and foresight can reasonably 
 do, in view of the character and mode of conveyance adopted, 
 to prevent accidents to passengers.
 
 60 INSTRUCTIONS 
 
 The utmost degree of care wliicli the human uiind is capable 
 of inventing is not required, hut the highest degree of care and 
 diligence which is reasonably practicable, under the circum- 
 stances of the case, is required. Tuller vs. Talhot, 23 111., 357; 
 Sher. & Eed., on Keg., § 266; Edwd. on Bail., § 710; Cooley on 
 Torts, § 644; Edvmrds vs. Lord, 49 Me., 279; Sales vs. W. 
 Stage Co., 4 la., 547; Fairchild vs. Cal. Stage Co., 13 Cal., 
 599. 
 
 The carriers of passengers by railroad are bound to use all 
 reasonably practicable precautions, as far as human foresight 
 will <sp, for the safety of their passengers; and they arc answer- 
 able to injured passengers for slight neglect of themselves or 
 agents, in respect to the condition of the track, and c(^nduct and 
 management of their trains, if injury ensues therefrom, and the 
 passengers themselves are without fault. G. c5 C. if. Rd. Co. 
 vs. Yarwood, 17 111., 509. 
 
 The jury are instructed, that the law imposes upon common 
 carriers 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 conveyance 
 or travel, while the carrier is using the utmost care and diligence 
 that is reasonably ^practicable. 
 
 The court instructs the jury, as a matter of law, that if there 
 is the least failure by a common carrier of passengers to exercise 
 all the care and diligence that is reasonably practicable, in keep- 
 ing its vehicles and appliances in safe condition, then the duty 
 of the carrier is not fulfilled, and it is answerable for any injury 
 or damage of which such neglect is the proximate cause; 2^i'<>- 
 vided, the person injured is himself using reasonable care and 
 caution to avoid such injury. 
 
 The jury are instructed, that it is the duty of a railway com- 
 pany employed in transporting passengers, to do all that human 
 care, vigilance and foresight can reasonably do, consistent with 
 the mode of conveyance and the practical operation of the road, 
 in 25i"oviding 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, the jury believe
 
 IN CIVIL ACTIONS. 01 
 
 that tlic plaintiff, while a 2)as3cnger on the caivs of defendant, 
 received an injury resulting from the negligence of the defend- 
 ' ant, or its servants, in either of the above particulars, they will 
 iind for the plaintiff; provided, the jury further believe, from 
 the evidence, that the plaintiff's own negligence did not con- 
 tribute to such injury. 
 
 The court instructs the jury, that the omission of any reasona- 
 bly practicable precaution which would tend to insure the safety 
 of the passenger, or lessen the danger to him, (constitutes such a 
 neo-lect in the carriers of passengers as will make them answera- 
 ble in damages to a passenger injured by reason of such neglect, 
 if the passenger is himself free from fault. 
 
 [See Part I., Sec. 19.] 
 
 Degree of Care Required of the Passenger. — The court instructs the 
 jury, that a passenger on a public conveyance, in charge of a 
 common carrier, is only required to exercise such care and fore- 
 sio-ht as is nsual, under similar circumstances, with careful persons 
 possessing ordinary intelligence. 
 
 [See Contributory Negligence.] 
 
 Juinping From the Cars Not Negligence, When — The court instructs 
 the jury, that the fact, if proved, that the plaintiff jumped 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 jurj' further 
 believe, from the evidence, that an accident had occurred to the 
 train, and that the plaintiff had reasonable ground to believe, 
 and 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 dan- 
 ger 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 apprehended danger, 
 and so leaped from the cars to escape it. Ewd. on Bail., § 
 719; Sherm. & Redfle on Neg., § 282; Btiell vs. JV. Y. Cent. 
 R. E. Co., 31 N. Y., 314 ; Frink vs. Potter, IT III, 40G ; Galena 
 & C. Ed. Co. vs. Yarioood, 17 111., 509.
 
 62 INSTRUCTIONS 
 
 Jumping From the Cars Negligence, Wlien — If tlie jury believe, from 
 the evidence, that the plaintiff leaped from the cars, at the time 
 of the injury, under circumstances that would not have justified 
 such 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 plaintiif cannot recover in this suit. 
 
 Carrier Not an Insurer Against Accidents. — That while the defend- 
 ant was bound to do all that human care, vigilance and fore- 
 sight could reasonably do, consistent with the practical operation 
 of the road, in order to prevent injuries to its passengers, still 
 the company do not insure the absolute safety of its passengers; 
 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 * -^ * * which a thorough and care- 
 ful examination would not disclose, and which could not bo 
 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. c& H. L. J2. Ii. Co. vs. 
 TJiomjtson^ 56 IIL, 138. 
 
 If the jury believe, from the evidence, that the injury to the 
 plaintiif in this suit happened to him by mere accident, without 
 any fault on the part of the defendant, or its employes, then the 
 plaintiff can not recover in this action. 
 
 If the jury believe, from the evidence, that the defendant ex- 
 ercised all reasonably practicable care, diligence and skill in the 
 construction, preservation and repairs of its track, and in man- 
 aging and operating its road, at the time 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 plaintiff 
 cannot recover in this action. 
 
 The court instructs the jury, that while common carriers of 
 passengers are held to the very highest degree of care and pru- 
 dence, which is consistent with the practical operation of their 
 vehicles and the transaction of their business, still they are not 
 absolute insurers of the personal safety of their passengers.
 
 IN CIVIL ACTIONS. 63 
 
 And ill this case, though the jury may believe, from the evi- 
 dence, that the plaintiff was injured while a passenger on de- 
 fendant's cars, still, if the jury further believe, from the evidence, 
 that the defendant and its servants were not guilty of any neg- 
 ligence which contributed to such injury, then the defendant is 
 not liable in this action. G. cfi C. Union R. 11. Co. \s.Yar- 
 wood, 15 IlL, 4G8. 
 
 The Passenger Takes all the Risks Necessarily Incident to the Mode of 
 Conveyance. — The jury are instructed, that plaintiff, as a pas- 
 senger on the defendant's car, as a matter of law, is presumed 
 to have taken upon himself all the risks necessarily incident to 
 that mode of traveling; and if the jury l)elieve from the evidence, 
 that without the fault of the defendant, but by inevitable acci- 
 dent, plaintiff was injured, the jury should find for the defendant. 
 
 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 the jury, 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, instruction, 
 amusement or protection. Weeks vs. IV. Y., etc., 7?. i?. Co., 10 
 X. Y. Sup. Ct., 669; Ilutchings vs. Western, etc., R. R. Co., 25 
 Ga,, 63; Dexter vs. Syracuse, etc., Rd. Co., 42 N. Y., 326; 
 Parinlee vs. Fischer, 22 111., 212. 
 
 The court instructs the jury, that the term baggage does not 
 extend to money, merchandise, or other valuables which are de- 
 signed for purposes of business, and not for the traveling ex- 
 penses, personal use, comfort, instruction, amusement or protec- 
 tion of the passenger. Woods vs. Devine, 13 111., 746. 
 
 If a Trnnk Contains Articles of Special Yalne, Can-ier Shonld 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^vearing apparel, represents by
 
 64: INSTRUCTIONS 
 
 implication, that it contains only sncli articles as are neces- 
 sary for his comfort and convenience on the journey, and if 
 it, in fact, contains merchandise, jewelry, or other valuables, 
 and the fact is not mentioned, the traveler is guilt}^ of such a 
 legal fraud as to absolve the carrier from the extraordinary lia- 
 bility of insurer. 
 
 The court instructs the jury, that a carrier of passengers is not 
 bound to inquire as to the contents of a trunk, delivered to it 
 as ordinary baggage, such as trav^elers usually carry, even if tlie 
 same is of considerable weight, but the carrier may rely upon 
 the representation, arising by implication, that it contains 
 nothins: more than ba^ffao-e. 
 
 Tlie court instructs the jury, that where a person, under the 
 pretense of having baggage transported, places in the hands of 
 the agents of a railroad company, merchandise, jewelry and 
 other valuables, without notifying them of its character and 
 value, he practices a fraud upon the company, which will pre- 
 vent his recovery in case of loss, except it occurs through gross 
 negligence of the company. Edwd. on Bail., § 529 ; Mich. Cent. 
 R. R. Co. vs. Carrow, 73 111., 3-i8; Whitmore vs. Steajnhoat, 
 etc., 20 Mo., 513; Doyle vs. Kiser, 6 Ind., 242. 
 
 Baggage— Liability of Carrier for Terminates, T^lien — The court in- 
 structs the jury, that the responsibility of a railroad company, as 
 a common carrier, for the baggage of a passenger, 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 pas- 
 senger'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., It. , It. Co. 
 vs. Boyce, 73, 111., 510.
 
 IN CIVIL ACTIONS. 65 
 
 COMMON CARRIERS OF GOODS. 
 
 Note.— In consideriiif-r tlie 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 diff(>rent states. This is more especially true as regards their right to 
 limit their common law liability. 
 
 Who is a Common Carrier of (Joods. — Tlie jury are instructed, that 
 one who, for hire, carries passengers and their baggage, or bag- 
 gage alone, for all persons choosing to employ hiin, from, to and 
 between railroad depots and hotels, and other pUi(!es in a city, 
 is a common carrier of goods. 
 
 The jury are instructed, that express companies, and railway 
 companies, are common carriers, and are liable as such ; they 
 are insnrers for the safe delivery of the property intrusted to 
 them for transportation ; and they will not be excused for its 
 non-delivery, except they are prevented from delivering it by 
 an act of God, or the pnblic enemy. Cooley on Torts, 04(> ; 
 Edwds. on Bail., § 551. Morrison vs. Davis, 20 Penn. St., 
 171; Railroad Co. vs. Reeves, 10 AValL, 170. 
 
 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 re- 
 sponsible for the delivery of the trunk and its contents, notwith- 
 standing the contehts consist of articles not nsually carried as 
 baggage, unless the owner has been guilty of some fraud or 
 deception in relation to the contents of said trunk. Parmelee 
 vs. Lowitz, 7Jt 111., 116. 
 
 The Law of the State, where the Goods are Delivered, Governs. — The 
 
 jury are instructed, that when goods are delivered to a connnon 
 carrier in this state, and marked to a particular pla(;e or desti- 
 nation, the carrier impliedly agrees to carry and deliver the 
 goods at that place, although it may be beyond its own linos 
 of carrying, unless there is some special contract relieving the 
 
 6
 
 66 INSTRUCTIONS 
 
 carrier from such implied ol)ligation. Cooley on Torts, 040; 
 MihvauJcee, etc., lid. vs. Smith, 74 111., 107; Bohannan vs. 
 Hammond, 42 Cal., 227; McMillan \&. Mich., etc., Rd. Co., 
 10 Mich., 79. 
 
 The court further instructs the jury, that the rule of law 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 direction, and without any express contract 
 as to the place of delivery, the law will imply an undertaking, 
 on the i3art t)f the carrier, to transport the goods to and deliver 
 them at the j^lace to which they are marked. Milwaukee, etc., 
 Rd. Co. vs. Smith, 74 111., 197. 
 
 Liable for all Loss, except by Act of tlod, Etc. — The court instructs 
 the jury, that a common carrier is lialde for all losses of goods 
 which do not arise from an act of God, or the public enemies ; 
 while a Avarehouseman is only liable for sucli losses as might 
 have been guarded against by the exercise, on his part, of ordi- 
 nary care and diligence. St. L. A. & T. II. R. R. Co. vs. Mont- 
 gomery, 39 111., 335. 
 
 The jury are instructed, that where a common carrier under- 
 takes to transport goods, he will be lield liable for their loss <u- 
 destruction, in the absence of a sj^ecial contract in that behalf, 
 unless the loss or destruction was caused by the act of God, or 
 the public enemy. 
 
 Wliat is Meant by Act of (iod. — By the term act of God, is meant 
 something 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 lire is not a loss by act of God. Mer. Dlsp. Co. vs. 
 Smith, 76 111., 542. 
 
 By the term act of God, is meant those events and accidents 
 which proceed from natural clauses, 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 sucli loss.
 
 IN CIVIL ACTIONS. 67 
 
 What is Not an Act of (Jo(l. — If the jury belicvo, from tlie evi- 
 deiux', that the injury coiiiijhuued of couhl liave been prevented 
 lyy -X- * *^ ^yy. ]yy g,jy (,tli(3i- incuus known and reco^ui7:ed as 
 suitable and proper for the purpose, then the injury ^vas not 
 produced by an act of God, within the meaning of the law. 
 
 Inovitalile Accident, Wliat. — If the jury believe, from the evi- 
 dence, that the injury complained of was the result of inevitable 
 accident, then the jury should find for the defendant. And the 
 jury are instructed, that the import and meaning of the words 
 " inevitable accident " is this : Where one is pursuing a lawful 
 avocation in a lawful manner, and something occurs which no 
 ordinary skill or precaution could foresee or prevent, and as a 
 consequence the accident takes place, this is called inevitalde 
 accident. 
 
 Carrier must use Reasonable Care to Avoid Injury by Act of Ood.— 
 
 The jury are instructed, that a common carrier is bound to use 
 reasonaljle 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 
 toward 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. 
 
 "Wliether, in this case, such care and diligence were or were 
 not used by the defendant, and whether any loss resulted there- 
 from, are questions to be determined by the jury, in view of all 
 the facts and circumstances proved on the trial. III. Cent. lid. 
 Co. vs. McClellan, 54 111., 58. 
 
 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, 
 the jury believe from the evidence, that the property in (juestion 
 had a(;tually come into the possession of the carrier, to be trans- 
 ported by it, and that it was afterwards lost or destroyed, as 
 alleo-ed in the declaration.
 
 6S INSTKL'CTIOXS 
 
 When the Liability of the Carrier Commences. — The law is, that as 
 soon as property is received into the exclusive possession of the 
 common carrier, with its knowledge and consent, for the pur- 
 pose of being shipped, then the liability of a common carrier 
 commences, no matter whether it is received into a car, depot 
 or wai-ehouse. Edwds. on Bail., § 528; Coylc vs. Western^ etc., 
 Corp., 47 Barb., 152; Barren vs. Eldridge, 100 Mass., 455; 
 Michigan, etc., Rd. Co. vs. Sohurtz, 7 Mich., 515. 
 
 The jury are instructed, that the liability of a common car- 
 rier, for the safe delivery of property which has come into its 
 possession, is the same, whether it was received directly from 
 the owner or from another carrier, to whom it had been oriffi- 
 nally delivered. Gulliver vs. Adams Erja. Co., 38 111., 503. 
 
 Liability Continues, How Long-. — The court instructs the jury, that 
 common carriers of goods must deliver the goods shipped b}^ 
 them to the owner or consignee at the point of destination, or 
 store the goods, subject to the order of the consignee; and they 
 cannot relieve themselves from their liabilities as common car- 
 riers until the goods are delivered to the owner or consignee, or 
 till they are placed in a warehouse for safe keeping; and there 
 nmst be some open, distinct act of delivery, to a warehouse in 
 order to change the liability fi-om 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 <& li. I. Rd. Co. vs. Warren, 16 111., 502; Francis vs. D. <i; 
 8. City Rd. Co., 25 la., 60. 
 
 Note. — The dutj' of raih'oad companies and other common carriers, in 
 respect to notifying the consignee of the arrival of the goods, or of deliv- 
 ering to tliem personally, will be governed, to some extent, by custom and 
 iisage, and by the former course of dealing between the parties; and pei-- 
 haps, to some extent, by the circumstances of the case. Redfield on Car- 
 riers, sees. 104-100; McMillc.n vs. Mich. Southern Rd. Co., Id Mich., 79; 
 Buckley vs. G. W. Rd. Co., 18 Mich., 121. 
 
 If Goods are not Delivered to Consignee, they must be Stored. — If tiie 
 jury believe, from the evidence, that the goods of the plaintiif 
 were carried by the defendant to then* destination, and not then 
 and there delivered to the plaintiff, or to some one for him, by
 
 IN CIVIL ACTIONS. 69 
 
 reason of there being no one there to receive them, or for any 
 other cause not the fault of the })lalnti(f, then it was the duty of 
 the defendant to store the goods in an ordinarily safe warehouse. 
 
 The jury are instructed, that it is the duty of a carrier of 
 goods, when the goods liave 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 safely 
 store them under 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. Calui vs. Mich. Cent. Rd. Co., 71 
 IIL, 90. 
 
 If the jury believe, from the evidence, that the defendant 
 received the goods of the plaintiff, to be transported by it, as 
 charged in the declaration, then the responsibility of the de- 
 fendant as a common carrier lasted until the plaintiff's goods 
 reached their destination and were delivered to the plaintiff, (;r 
 his authorized agent, or were, by the defendant, stored in an 
 ordinarily safe ^varehouse of its own or some one else. 
 
 Railroad Companies are not Bound to Deliver to Consignee PersoajiUy. — 
 
 The court instructs the jury, that railroad comj^anies are not 
 bound to deliver goods carried by them to the consignee per- 
 sonally. When the goods have reached 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, 6-42 ; Chicago dt A. Ed. Co. vs. Scott, 42 111., 
 122. 
 
 Duty and Liability of Express Companies. — That an express com- 
 pany, as a common carrier, is not only i-cquired to transport the 
 goods to the place of destination, but the further duty is en- 
 joined upon it to deliver the goods to the consignee, at his resi- 
 dence, or place of business, if, with the exercise of reasonable 
 care and efforts in that behalf, such residence or place of busi- 
 ness can be found.
 
 70 INSTRUCTIONS 
 
 The court further instructs the jury, that wliere 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 company 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 the jury, 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 busi- 
 ness, 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 U. Ex. Co. vs. Wolf, 79 111., 430. 
 
 That it is the duty of an exjiress company, 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 prevention 
 by the act of God, or a public enemy. And in this case, if 
 if the jury believe, from the evidence, that the defendant, at 
 the time in question, was a common carrier, and as such received 
 the money in question, to be carried and delivered to the pUiintiff 
 at Iv., and that the defendant delivered said money to one E., on 
 a writing purporting to be an order of the plaintiff, and that 
 said order was a forgery, then such deli^'ery will not excuse the 
 defendant, and the plaintiff is entitled to recover the amount of 
 said money. Am. M. U. Ex. Co. vs. Milk, 73 III, 22-1. 
 
 Care Requii'ed of Warehousemen. — The jury are further instructed, 
 that when the carrier assumes the duty of wai-ehousemen, 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 com- 
 petent servants. 
 
 And if the jury 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 defendant
 
 IN CIVIL ACTIONS. 71 
 
 retained possession of tliem, such i)()Sscssion would 1)C in the 
 capacity of a warehousekeeperof goods for hire, and as siuh ware- 
 houseinan,tho defendant was bound to use all ordinary diligence 
 and caution in the care of the same. Edwd. on l>ail., § 33G; 
 Chic. E. L cO P., Ed. Co. vs. Fairdough, 52 111., lo(>. 
 
 That the ordinary diligence or care which a warehouseman i3 
 bound to use, is that degree of care and attention which, under 
 the same circumstances, a man of ordinary prudence and dis- 
 cretion would ordinarily use in reference to the particular goods, 
 if they were his own property. Mote vs. C. (& JV. W. Ed. Co., 27 
 la., 22; Fra?ic{s vs. D. dh S. C. Ed. Co., 25 la., GO. 
 
 Wliat is Ordinary Diligonce and Care. — That ordinary diligence 1.3 
 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. Ed. Co. vs. Scott, 42 111., 132. 
 
 Must CaiTy Within a Reasonable Time. — The jury are instructed, 
 that when a railroad company contracts to forward and deliver 
 goods at any particular point, it is bound to forward and deliver 
 the goods at that point within a reasonable time, and it will not 
 be released from its liability by delivery to another connecting 
 road; but it will still be liable for any unreasonable delay, 
 although the same occurs on account of the crowded condition 
 of the connecting road, or for any other cause attributable to such 
 road. Penn. Ed. Co. vs. Be?i3, 68 Peim. St., 272; Kiyig vs. 
 Macon, etc., Ed. Co., GO Barb., IGO; Toledo, W. dj W. E. E. Co. 
 vs. Lockhart, 71 111., G27. 
 
 First Canier Liable for Loss. — The jury are instructed, that if 
 there is no special contract to the contrary, and goods are lost 
 by one carrier in a line composed of several cari-iers, the first to 
 whom the goods are delivered, and who agreed to transport 
 them to their destination, will be liable to the owner in case the 
 goods are lost, and he will not be recpiired to sue the carrier who 
 actually lost the same. Chicago & N. W. E. TF. Co. vs. R, 
 Line Packet Co., 70 111., 217.
 
 12 INSTEUCTIONS 
 
 Receipt Prima Facie Evidence of Goods in Good Order. — That the 
 receipt introduced in evidence is prima facie jiroof that the 
 goods therein mentioned were in good order at the time tliey 
 were received by the defendant, and so far as regards that ques- 
 tion, the burden of proof is on the defen<Uint to show, by a pre- 
 ponderance of evidence, that the goods were in a (himaged con- 
 dition at the time they were received hy the defendant, or else 
 tliat the injury occurred from a cause for which the defendant 
 is not liable, as explained in these instructions; provided, the 
 jury belie\-e, from the evidence, that the goods were damaged 
 ^vhcn delivered to the plaintiff, as charged in the declaration. 
 Montgomery, etc., Rd. 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 oi-der, 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 the 
 jury believe, from the evidence, that the defendants were so 
 deceived or defrauded, they will find a verdict for the plaintiff 
 for the amount of his loss, as shown by the evidence; provided, 
 that the jury find, from the evidence, that the plaintiff demanded 
 said goods before the commencement of this suit, and that tlie 
 goods were not delivered on demand, as charged in the plain- 
 tiff's declaration; and further, that said loss did not occur from 
 {causes excepted in the receipt). G. W. R. R. Co. vs. McDon- 
 ald, IS 111., 172. 
 
 The jury are instructed that the bill of lading in this case 
 shows, prima facie, that the goods in question w-ere in good 
 order and condition when they were received by the railroad 
 company; and if the jury 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 tlie time 
 they were delivered, or that they were injured by some fault oi-
 
 IN CIVIL ACTIONS. 
 
 7S 
 
 nci^ligeuce of the plaintiff, or by {some cause within the exemjj- 
 tion clause of the receipt). 
 
 [See Pari /., Sec. 8.] 
 
 Bill of Lading Implies What, Contract. — The jury arc instructed, 
 that the l)ill of lading, offered in evidence, recites that the goods 
 were in good order and condition when received by the defend- 
 ant, and by said bill of lading the defendant contracted to de- 
 liver 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 — ordinary wear and tear and ordinary deterioration 
 excepted — and that the plaintiff was injured and has sustained 
 damage thereby, then tlie plaintiff 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. 
 
 Bill of Lading Not Conclusive of Condition of the Goods. — The court 
 instructs the jury, that a bill of lading, while _2>/'M^i«yac^(? true, 
 may be explained by other evidence; and if the jury believe, 
 from the evidence in this case, that the goods in question were 
 wet or otherwise injured, or in bad condition, before they came 
 into defendant's hands, and that they were, externally, in good 
 condition when defendant received them, and that the person 
 receiving the goods could not, without opening them, have 
 ascertained their actual condition, then, the fact of receipting 
 for them as in good order and condition, v/ill not preclude the 
 defendant from showing their true condition in this suit. Bis- 
 sell vs. Price, 10 111., 408 ; Carson vs. Harris, 4 G. Gr., 516 ; 
 Porter vs. C. c6 J^. W. Rd. Co., 20 la., 73. 
 
 Carrier Does Not Insure Condition of the Goods. — The court instructs 
 the jury, that while common carriers ai-e insurers for the deliv- 
 ery 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 
 ordinaiy wear and tear, or ordinary deterioration in quantity or
 
 74 INSTRUCTIONS 
 
 quality daring the journey, nor for loss arising from the fault or 
 negligence of the shipper. 
 
 Carriers can only Restrict their Common Law Liabilities by Special 
 Contract. — The law is, that a eoninion carrier is bound to receive 
 and carry goods offered to him for transportation, if in proper 
 condition for shipping, subject to all the incidents of his busi- 
 ness as a common (carrier, and there can be no presumption that 
 the shipper intended to abandon any of his legal rights; and 
 the burden of proving a contract, by which his common law 
 liability, as explained in these instructions, has been restricted, 
 is upon the carrier. Western T. Co. vs. N'ewhall^ 24 111., 466 ; 
 McCoy vs. The K. & D. M. R. Co., 44 la., 424. 
 
 Leg-al Duty of Carriers Imposed by Law. — That the right conferred 
 upon railroad corporations, in their charters, to carry passengers 
 and property for compensation, is coupled with the duty that 
 they shall receive and carry passengers find freight on their 
 roads as they may be offered, under the liabilities and respon- 
 sibilities which the law imposes upon common carriers, as ex- 
 plained in their instructions; and these liabilities cannot be 
 avoided except by a special agreement to that effect. P. & It. 
 I. Rij. Co. vs. Coal Valley., etc., Co., *o% 111., 4S0; Wallace vs. 
 Mattheios, 39 Ga., 617; Thayer vs. St. Louis, etc., Ed. Co., 22 
 Ind., 20. 
 
 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 carrier from certain 
 liabilities therein mentioned, such receipt is not binding upon 
 the shipper, unless it appears, by a preponderance 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. C. c& 
 R. I. Rd. Co., 71 111., 458. 
 
 Exemption Clause Binding if Agreed to. — The court instructs the 
 jury, that when a common carrier, receiving goods for trans- 
 portation, gives a receipt for the goods, containing provisions 
 limiting the common law liability of the carrier, other than those
 
 IN CIVIL ACTIONS, 
 
 Y5 
 
 arising fi-oiii its own fault or negligence, and the shipper accepts 
 the receipt witli a full knowledge of its terms, and intends to 
 assent to such restrictions, it becomes his contract as fully as if 
 he had signed it. But the simple acceptan(;e of such a receipt 
 does not conclusively hind the sliippcr; in order to bind him, it 
 must appear, from the evidence, that he had knowledge or notice 
 of the terms of the receipt and assented to them. Adams Ex. 
 vs. Ilayjies, Co. 42 111., 89. 
 
 Shipper will be Presumed to A^-ee to Exemption Clause, Wlien.— 
 
 The court instructs the jury, that when a shipper delivers goods 
 to a common carrier to be transported by the carrier, and takes 
 a receipt for the goods in the nature of a bill of lading, specify- 
 ing in the body of it, so as to form a part of the receipt, the 
 terms upon which they are to be carried and delivered, the 
 shipper will be bound by the terms of the receipt, unless it ap- 
 pears, by the evidence, that some fraud or imposition was prac- 
 ticed upon the shipper to induce him to take such a receipt. 
 Edwd. on Bail., § 561 ; Long vs. iT. T. Cent. Bd. Co., 50 N. Y., 
 76; Grace vs. Adams, 100 Mass., 505. 
 
 The jury are further instructed, that the receipt introduced 
 in evidence in this case contains a stipulation exempting the 
 defendant from all loss or injury to the goods arising from, etc.; 
 and if the jury 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 in- 
 formed of its contents, and if he accepted it without objection, 
 that he assented to the conditions prescribed in it — unless the 
 jury further believe, from the evidence, that some fraud or con- 
 <;ealment, or improper practice, was used to induce him to 
 take it. 
 
 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
 
 70 INSTRUCTIONS 
 
 show that the loss resulted from one of the causes excepted in 
 the receipt, as explained in these instructions, or from an act of 
 God, or the public enemies. Western T. Co. vs. Newhall, 24 
 111., 40G; Mitchell vs. The U. S. Ex. Co., -40 la., 214. 
 
 Liability not Limited by Notice. — The jury are instructed, that a 
 connnon 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 property; to make such notice effectud, the 
 shipper must assent to its terms. Edwd. on Bailments, § 560; 
 N. J. Steam Man. Co. vs. Merchants' Baoik, 6 How. U. S., 
 344; McMillan vs. 3fichigan, etc., Bd. Co., 16 Mich., 79; 
 Blossom vs. Dodd, 43 N. Y., 204 ; Verner vs. Sweitzer, 32 Penn. 
 St., 208. 
 
 The conrt instructs the jury, that the couimon law liability of 
 a common carrier, as explained in these instructions, cannot be 
 restricted l)y notice, even when such 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 cjuestion of fact for the jury. 
 
 The jury are instructed, that by the terms of the receipt in- 
 troduced in evidence in this case, the defendant is not liable for 
 any loss or damage to the goods in question, arising from or 
 caused (l)y fire) while in the possession of defendants as common 
 carriers, unless such {fire), or loss, or damage was occasioned by 
 some want of ordinary prudence or reasonable care, on the part 
 of the defendant; and although the jury may believe, from the 
 evidence, that said goods were destroyed (by fire) while in the 
 possession of the defendant, still the defendant is not liable 
 therefor, nnless the jury further believe, from the evidence, that 
 the said defendant, or its servants, by the exercise of ordinary 
 ^ diligence or reasonable care, might have avoided such loss. 
 
 Must Exercise Reasonable Care to Prevent Loss Within Exemption.— 
 
 Although the jury nuiy believe, from the evidence, that the 
 goods in question w^ere destroyed {hy fire), still, if the jury fur- 
 ther believe, from the evidence, that by the exercise of ordinary
 
 IN CIVIL ACTIONS 
 
 jiriKleiK'C on the part of tlie defeiidaut, or its servants, bucIi 
 destruction miirht have been prevented, then the defendant is 
 liable in this suit. 
 
 Sliipper Bound by Receipt, When — Tlie coui-t instructs the jury, 
 that if a shipper take a receipt for his goods from a connnou 
 carrier, which contains conditions limiting the liability of the 
 carrier, with a full understandmg of such conditions, and in- 
 tending to assent to them, it becomes his contract as full as if 
 he had signed it, and he will be bound by the conditions; 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. 
 
 Shipper not Bonml hy Notice Printed on Receipt. — The court instructs 
 the jury, that the printed notice printed upon the {J>ac?£ of the) 
 i-eceipt, of the terms and conditions upon which the defendant 
 received and carried the goods in question, is not binding upon 
 the plaintiff, unless the jury find, from the evidence, that his 
 attention was particularly called to that notice when he took the 
 receipt, and tliat he expressly assented to the terms and condi- 
 tions therein contained. The fact alone that the plaintiff ac- 
 cepted the receipt is no evidence that he assented to the terms 
 of said notice. 
 
 Cannot Resti'ict Liability Arising from its Own Negligence. — The law, 
 on grounds of pul)lic policy, will not permit a common carrier 
 of passengers or freiglit, to contract against liability for its own 
 actual neo-lio'ence, or that of its servants and emploves. U. 31 
 S. Co. vs. Ind.^ etc., ltd. Co., 1 Disney (Ohio), 480; Erie., etc., 
 lid. Co.xs. Wilcox, 84- 111., 239; Lid., etc., Rd. Co. vs. Allen, 
 ?.l Ind., 394; Penn. Rd. Co. vs. 3IcClosJ>:ey,m Penn. St., 526; 
 School JDis., 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 tiie 
 plaintiff and the defendant, that defendant should not be liable 
 for any loss or injury to said goods, wliicii might occur by reason 
 or " * * still, such a contract would not relieve the de-
 
 78 I N S T R r C T I O N S 
 
 fendant from loss resulting from negligence, or the want <>f 
 ordinary care and prudence on the part of the defendant, or its 
 servants. 
 
 And in this case, if the jury believe, from the evidence, that 
 the defendant was guilty of negligence, or any want of ordinary 
 care and caution, and that the loss complained of resulted there- 
 from, without any fault upon the part of the plaintiff, then lie 
 has a right to recover in this case. III. O. Rd. Co. vs. Sniyser 
 et al, 38 111., 354. 
 
 COMMON CARRIERS OF LIVE STOCK. 
 
 Duties and Liabilities of. — It is the duty of a railroad com- 
 pany which undertakes to carry live stock for hire, to exer- 
 cise 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 vs. J^ew 
 Haven, etc., Rd. Co., 12 Allen, 531 ; Great W. Rd. Co. vs. Jlaio- 
 kins, 18 Mich., 427; McDaniel vs. C. c§ N. W. Rd. Co., 24 
 la., 412. 
 
 What Care Required of Caniers of Live Stock. — The jury are 
 instructed, that the carrier of live stock must exercise all rea- 
 sonable care, skill and judgment to provide safe and properly 
 constructed cars, in which to carry the stock — to provide stations 
 or stopping places along the road, where cattle may be fed; and 
 if it fails to exercise such care, skill and judgment, and loss or 
 damage results therefrom, the carrier wull be liable to the owner 
 for the damage thus sustained, if he is himself free from fault 
 or negligence contributing to such injury. 
 
 The court instructs the jury, as a matter of law, that a com- 
 mon carrier for hire is bound to exercise all the care and dili- 
 gence which prudent and cautious men, in the same business, 
 usually employ, for the safety and preservation of the property 
 confided to its care; and, in this case, if the jury believe, from
 
 IN CIVIL ACTIONS. 79 
 
 the evidence, that the defendant did not use all such reasonable 
 care and prudence to provide a safe and suitable car for plain- 
 tiff's stock, or in the running and management of the train in 
 question, and that, by reason of such want of care and diligence, 
 phiintiff's stock was injured, as charged in the declaration, tlien 
 the defendant is lia'ole for the resulting damage to the anujunt 
 proved by the evidence. 
 
 Injiu'ies Without Carrier's Fault. — If the jury believe, from the 
 evidence, that the defendant furnished a suitable car in whicli 
 to ship the stock in question, and used all due care in managing 
 and traiisporting the same, and that the injury complained of 
 was caused by the peculiar character of the animals themselves, 
 such as bad temper, unusual restiveness or viciousness, then the 
 defendant is not liable in this case. 8m.ith vs. N. IL, etc., Rd. 
 Co., 12 Allen, 531. 
 
 The jury 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 the jury further be- 
 lieve, from the evidence, that such defect in no manner con- 
 tributed to the injury complained of, then the defendant sliould 
 not be held liable in this case by reason of such defect in said 
 car. 
 
 If the jury believe, from the evidence, that the car in which 
 the stock was shipped was then in a safe 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 having charge of the train, then 
 the jury should find the defendant not guilty. 
 
 Care Required of Carriers of Hog-s. — That Mdien hogs are shipped 
 in railroad cars at a season of the year when, for their pnjper 
 care and treatment, it is necessary to apply water to prevent 
 them from being suffocated or overheated, then it is the duty of 
 the railroad company to have proper stations and appliances for 
 furnishing such water, and to so run and manage its trains as 
 to afford reasonable opportunities to the persons in charge of 
 the stock to apply such water, and if it does not- exercise such
 
 80 INSTKUCTIONS 
 
 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, he is himself free from fault or neg- 
 ligence contributing to such injury. Edwd. on Bail., § GS2] 
 Toledo, etc., Rd. Co. vs. Thompson, 71 111., 434. 
 
 Degree of Cai'e Required to Avoid Delay. — The jury are instructed, 
 that the carrier of live stock for pay must exercise I'easonalde 
 diligence in the business, and complete the journey within a 
 reasonable time, and if he does not do so, and the stock is in- 
 jured by the delay, the carrier will be liable to the owner for all 
 damage caused by such delay. Edwd. on Bail., § 680; Ger- 
 man vs C. <:€' iV^ W., la., 137; Tucker vs. Pacific Rd. Co., 50 
 Mo., 385; Slsson vs. Cleveland, 14 Mich., 489. 
 
 If the jury believe, from the evidence, that some time, on or 
 about, etc., the plaintiff shipped on board the defendant's cars 
 the {live stock) 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 arrival at C, then it was the 
 duty of the defendant to start the train and to make the journey 
 within a reasonal;)le time after so receiving the stock; and if the 
 jury further l)elleve, from the evidence, that the cars containing 
 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 
 depreciated in value, and the plaintiff thereby damaged, then 
 the defendant is liable for such damage in this suit. 
 
 Stilt by Carrier for Freight and Charges. — If the jury believe, from 
 the evidence, that at the time in question the plaintiff was a 
 common carrier, and in the ordinary course of business received 
 the goods in question, in the j^roper line of transit, and paid 
 freight and charges thereon to preceding carriers or warehouse- 
 men, then the plaintiff is entitled to reasonable charges for the 
 transportation of said goods, besides the amount so paid to 
 others, although the jury may believe, from the evidence, that 
 said goods were damaged before they reached the plaintiff, while 
 in the hands of some prior carrier; provided the jury further
 
 IN CIVIL ACTIONS. 81 
 
 believe, froin the evidence, tliat said goods were not injured 
 after coming to the hands of phiintiff. Bissell vs. I*rice, 10 
 IlL, 40 S. 
 
 Carrier's Lien. — The jury are instructed, that a common car- 
 rier has no lien upon, or right to detain, goods or merchandise 
 shipped from one place, or at one time, for charges on other 
 goods shipped at another phice, or another time, unless there is 
 some contract to that effect expressed or implied Ijetween the 
 parties (except on proof of general usage, etc). Edwd. on Bail., 
 §615. 
 
 If the jury believe, from the evidence, that the plaintiff, be- 
 fore 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 thereon, 
 then he is uom^ estopped from setting up that claim as a reason 
 for not delivering the property on demand. 
 [Sec Demand and Refusal.] 
 
 CONTRACTS. 
 
 Capacity to Contract. — The jury are instructed, that the la\y 
 presumes that all adult persons have sufficient intellectual 
 capacity to transact business with ordinary intelligence, and the 
 party alleging incaj)acity must overcome this presumption by a 
 preponderance of evidence. 2 Pars, on Coiit., 572; MoCarty 
 vs. Kearnan, 86 111., 291. 
 
 The court instructs the jury, 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. 
 
 The court instructs the jury, 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 ordi-
 
 82 INSTKUCTIONS 
 
 nary affairs of life, lie will not be released from the responsi- 
 l)ility that rests npon the ordinary citizen. Harris vs. Watnsley, 
 41 la., 071; -i Pars, on Cont., 572; Tltcoiiib vs. Vantyle, 84 
 III, y72. 
 
 That to establish such a want of mental capacity as will avoid 
 a contract on that gronnd, there mnst 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 
 consecpiences of his act in entering into the contract. 
 
 That if a person is capable of reasoning correctly on the 
 ordinary affairs of life, or is capable of comprehending and 
 understanding the consequences which usually accompany ordi- 
 nary acts, he will be held to be of sound mind, and be bound 
 by his contracts. Baldwin vs. Dunton, 40 111., 188. 
 
 The court further instructs the jury, that mere mental weak- 
 7iess of one of the parties to a contract, is not sufficient to avoid 
 the contract, 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 accompanied 
 by evidence of imposition or undue influence. 
 
 Dnuilienness. — The court instructs the jury, as a matter of law, 
 that to render a transaction voidable on account of the drunken- 
 ness alone of a party to it, it should appear, from the evidence, 
 that he was so drunk as to have drowned his reason, memory 
 and judgment, and impaired his mental faculties to an extent 
 that Avould render him wholly idiotic for the time being. Bates 
 vs. Ba.ll, 72 111., 108. 
 
 If the jury l)elieve, from the evidence, that the plaintiff pro- 
 cured intoxicating li(uiors 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 
 understand 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^ 5 Pick., 431; 
 
 1 Pars, on Cont., 383. 
 
 [See Insanity,
 
 IN CIVIL ACTIONS. 83 
 
 Frsiiid .inil Circumvention in I'rocariug' Execution of Contract. — If the 
 
 jury believe, from the evidence, that the defendant was induced 
 by the plaintiffs, or cither of them, to sign the written contract 
 offered in evidence by the fraud and circumvention of said 
 plaintiffs, or either of them, then such written contract is void as 
 against the defendant, and he is only bound by tlie actual con- 
 tract made between the parties, as shown by other evidence in 
 the case. 
 
 If the jury believe, from the evidence, that at the time the 
 contract 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 the jury 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 wholW void as to him. 
 
 Signature Procured by Fraud— Burden of Proof. — If the jury believe, 
 from the evidence, that the defendant signed the {lease) in ques- 
 tion, then the covenants on his part therein contained will be 
 binding upon the defendant, unless the jury further believe, 
 from the evidence, that he was induced to sign the same by some 
 fraud practiced on him by the plaintiff; and such fraud must 
 not be presumed by the jury without proof, it must be proved 
 by a preponderance of evidence. 
 
 The jury are further instructed, that although they may be- 
 lieve, 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 the jury further believe, from the evidence, that 
 the plaintiff fraudulently induced the defendant to sign said 
 lease without reading it or knowing its contents. 
 
 TVliat Constitutes a Contract— Assent of Parties. — The court instructs 
 the jury, that before there can be a contract between two par-
 
 84: INSTRUCTIONS 
 
 ties, the ininds of the two parties mast come together and agi-ee 
 nj)oii all the terms and conditions of the contract: or, as is some- 
 times said, the minds of the contracting parties must meet. 1 
 Par. on Cont., 475; Baker vs. Johnson Co., 37 la., 18G; Steel 
 vs. Ililler, 40 la., 402; Davidson vs. Porter, 57 IlL, 300. 
 
 The jury are instructed, that if one person makes a proposi- 
 tion 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 l)e as fully bound 
 as if he had in terms accepted the offer. Miller vs. Manis, 57 
 111., 126. 
 
 Wliata Conti-act of Sale. — The jury a'-e instructed, that to con- 
 stitute a contract of sale of personal property, for future deliv- 
 ery, 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 pay- 
 ment, and the time, place and terms of delivery of the property 
 sold, so that each mind assents to all the requirements of the 
 other ; if any one of these matters is left open for further con- 
 sideration and further settlement, there is no complete bargain. 
 
 Consideration Necessary to aTalid Contract. — The court instructs the 
 jury, that any promise, for which there is no consideration, can 
 not be enforced at law. 
 
 Wliat is Consideration, — The court instructs the jury, that what- 
 ever works a benelit to the party promising, or whatever works 
 any loss or disadvantage to the person to whom the promise is 
 made, although without any benefit to the promiser, is a sufficient 
 consideration to support a contract or agreement. 1 Pars, on 
 Cont., 430; 1 Pars, on K & B., 175. 
 
 That one promise is a good consideration for another promise, 
 and if the jury l)elieve, from the evidence, that at the time of 
 the alleged contra(;t the plaintiff promised and agreed with the 
 defendant that he would, etc., and that in consideration thereof 
 the defendant then agreed with the plaintiff 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.
 
 IN CIVIL ACTIONS. 85 
 
 New Promise to Perform Legal Obligation. — The court instructs the 
 jury, that if one party promise another to do what he is ali'cady 
 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 
 camiot be enforced against him by suit. 1 Pars, on Coiit., 437; 
 Collins vs. Godefrey, 1 B. & Ad., 950. 
 
 Promise to Receive Part Pajanent in Full Satisfiiction. — If the jury 
 believe, from the evidence, that at the time of the alleged 
 agreement interposed as a defense in this case, the defend- 
 ant was indebted to the plaintiff in the sum of ($100), and that 
 that 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 indebtedness 
 within {ten days) from that date, he would take that as payment 
 in full, and forgive him the balance of the debt; and further, 
 that relying upon that promise, the defendant did, within ten 
 days, 23ay the said sum of ($50), still such jDromise 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. 
 
 Partial Payment by Strangers. — Though the jury may believe, 
 from the evidence, that at the time of the alleo-ed ag-reement for 
 a settlement of the matter in controversy in this case, the de- 
 fendant was indebted to the plaintiff in the sum of about ($100), 
 and that such indebtedness was then due, still, if the jury fur- 
 ther believe, from the evidence, that at that time the plaintiff 
 promised the defendant that if he would raise ($50) and pay that 
 sum on the indebtedness within {ten days) from that date, that 
 he would take that amount as payment 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 the 
 plaintiff, and he is bound thereb3\ 2 Pars, on Cont., 619; 
 Boyd vs. Ilitchcock, 20 John., 76 ; Kellogg vs. Richards, 14 
 Wend., 116.
 
 86 INSTRUCTIONS 
 
 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 mean and intend just what the language 
 used commonly imports, as ordinarily used in reference to the 
 subject matter of the contract, and not what either party may 
 have secretly intended or meant. 
 
 Still, if the jury believe, from the evidence, in this case, that 
 at the time of the making of the alleged contract, in this case, 
 the plaintiff said * * * and if the jury further believe, 
 from the evidence, that the defendant understood plaintiff to 
 sav * * * and that, acting on that understanding, defend- 
 ant replied * * * this language would not constitute a 
 binding bargain or contract between the parties. I^ichols vs. 
 Ilercer, 44 111., 250; 2 Pars, on Coiit., 494. 
 
 Contract Modified. — If the jury believe, from the evidence, that 
 after the making of the written contract, the parties, by parol 
 agreement modiiied the same as to the time of performance, 
 and as to the quality of, etc., to be delivered, and that the 
 plaintiff performed the said contract as so modified, by deliver- 
 nig, etc., then both parties would be bound by the contract as 
 thus modified. Leo Grand Quarry vs. Eeicharcl, 40 la., 161; 
 1 Greenl. Ev., § 303, 304; Cook vs. Marpluj, 70 111., 96. 
 
 The jury are instructed, that although a sealed contract, while 
 it remains in force and is to be performed, cannot be shown to 
 have been changed by parol agreement, still, a contract under 
 seal may be changed by a subse(pient verbal agreement for the 
 performance of additional woi'k, or the furnishing of additional 
 materials, or for the payment of an additional sum of money, and 
 if the work is subsequently performed, or the material furnished 
 in accordance with the terms of the contract, as thus changed, 
 the change will be binding upon both the parties. 
 
 Rij?lit to Rescind Contract for Frand. — The law is, that if a party 
 is defrauded in a contract by the false and fraudulent represent- 
 ations 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
 
 IN CIVIL ACTIONS. 87 
 
 tlie contract and recover back what he has paid. Parker vs. 
 Marquis, 6-i Mo., 38. 
 
 Tlie jury are instructed, that in order that representations 
 may be regarded as fraudulent, so as to be a ground for rescind- 
 ing a contract, they must Ije both false and fraudulently made. 
 If they are made with 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, aud they prove to be untrue, then they are 
 fraudulent within the meaning of the law. Parnilee vs. 
 Acloljyh, 28 Ohio St., lU. 
 
 Ri-^ht to Rescind for Mistake of Fact. — The court instructs the 
 jury, that wliere a conti-act is made under an honest mistake, 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. Chajnn, 
 28 Ohio St., 300 
 
 Notice of Intention to Rescind mnst be Given, Etc. — The jury are 
 instructed, that when 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 entitle him to rescind, 
 or else he will be held to have ratified the contract. 
 
 And in this case, whether the defendant gave the j^laintiff 
 notice of his intention to rescind the contract in question, and 
 whether such notice was given as soon as it could i-easonably be 
 done after the alleged discovery of the fact, relied upon as giv- 
 ing the right to rescind, are questions of fact to be determined 
 by the jury from the evidence in the case. Parmlee vs. 
 Adolph, 28 Ohio St., 10; Byers vs. Chapin, 28 Ohio St., 300. 
 
 Rescinding- by Mutual Consent. — The jury are instructed, that all 
 contracts may be rescinded by the consent of all the contracttino- 
 parties, and this consent need not always be expressed in words. 
 If either party without right 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.
 
 88 INSTRUCTIONS 
 
 Rescinding- for Non-performance. — The jury are instructed, that 
 when one party fails or refuses to perform his part of the con- 
 tract, with an intention to abandon it, or disables himself from 
 performing it, the other party may treat the contract as re- 
 scinded. 2 Par. on Cont., GTS. 
 
 The court instructs the jury, as a matter of law, that a con- 
 tract cannot be rescinded by one of the parties alone, for non- 
 performance by the other, iiidess both can be restored to the 
 condition in which they were before the contract was made; 
 and if one of the parties has derived any advantage from a par- 
 tial performance by the other, he cannot hold the benefit of this 
 and rescind as to the residue, on the ground of the other's non- 
 performance. 2 Par. on Cont., 679. 
 
 If the juj'y believe, from the evidence, that the plaintiff has 
 made all the payments called for by the contract, read in evi- 
 dence, at the time and in the manner therein specified, except- 
 ing the last payment called for, and that when the last payment 
 became due he tendered to the defendant the full amount 
 thereof and demanded a deed of the premises ; and further, that 
 the defendant was then unable to convey the premises in ques- 
 tion to the plaintiff by a good and sufficient deed in fee simple, 
 and clear of all incumbrances, and that he failed and neglected 
 so to do within a reasonable time thereafter, then the plaintiff 
 had a right to treat said contract as rescinded, and to sue for 
 and reco\er back the money so paid Ijy him, with interest thereon 
 at the rate of six per cent, per annum, unless it appears, from a 
 preponderance of the evidence, that the parties, by some subse- 
 quent agi'eement, have modified or otherwise waived the terms 
 of said origin.al agreement. 
 
 If the jury 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 constitute an 
 incumbrance on said land, and the plaintiff w'as not bound to 
 accept the deed from the defendant until such tax title should 
 be released or conveyed to the defendant.
 
 IN CIVIL ACTIONS, 
 
 89 
 
 The jury are instructed, that under the contract read in evi- 
 dence, the phiintiff could not call upon the defendant for a deed 
 until the plaintiff had paid or tendered the last payment men- 
 tioned in the contract, and unless it appears, from a preponder- 
 ance of the evidence, that through 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. 
 
 Partial Performance — Breach of Contract. — The court instructs the 
 jury, as a matter of law, that where two parties enter into a law-^ 
 ful contract upon sufhcient consideration, and one of the parties 
 is ready and willing to perform, and makes preparation to per- 
 form on his part, but is prevented from performing 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, including necessary expenses incurred in making such 
 preparation. 
 
 Hardship will not Excuse Non-Performance. — The j u ry 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 subsequent impossibility of 
 performance will not excuse a non-performance of the contract, 
 unless the impossibility of performance arise from an act of God. 
 
 What 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, performance must be 
 impossible by or through any known exercise of human skill or 
 power — something must occur which no ordinary skill or pre- 
 caution could have foreseen or prevented. 2 Par. on Cont., G72. 
 
 [See Act of God] 
 
 Burden of Proving Breach of Contract. — The court instructs the 
 jury, that to entitle the plaintiff to recover in this case he must 
 prove, by a preponderance of evidence, the contract substan- 
 tially as alleged in the declaration, and, also, the breach of the
 
 90 INSTRUCTIONS 
 
 contract as tlierein alleged aud cliarged, and nnless lie lias done 
 so, the jury should find for the defendant. 
 
 The court instructs the jury, 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 
 charges in the declaration). 
 
 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 purchase it, that con- 
 tract would be binding upon both the parties, although they 
 themselves may have supposed that to make the contract bind- 
 ino- they would have to meet on some other day to ratify it. 
 Moore et al. vs. Murdoch et al.., 26 Cal., 514. 
 
 Contra. — The court instructs the jury, that all contracts made 
 in this state on Sunday, though not absolutely void, are voidable, 
 and neither party can be bound to perform such a contract against 
 his will. Meriwether vs. Smith, 44 Ga., 541 ; Pike vs. King, 
 1<) la., 49; Feahe vs. Conlan, 43 la., 297; 2 Pars, on Cont., 
 757. 
 
 3Iarria?e Conti-acts, How ProTed. — The court instructs tlie jury, 
 that to prove a contract of marriage an expressed contract 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 expressive of earnest 
 love. Rockafelloio vs. Newcomh, 57 111., 186; 2 Pars, on Cont., 
 62; Royal vs. Smith, 40 la., 615. 
 
 The court instructs the jury, 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 evidence 
 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. 
 
 If the jury believe, from the evidence, that the defendant 
 promised to marry the plaintiff, as alleged in the declaration,
 
 IN CIVIL ACTIONS. 91 
 
 then no actual jDromise of the phiiutiff need he shown. E\-i- 
 dence of her preparation for marriage and of lier ean-ying 
 lierself as consenting to and apj^roving liis promise, if such 
 evidence has heen introduced, would he sufficient to estahlish a 
 contract of marriage hetween the parties. 
 
 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 plaintiif and defendant, as 
 charged in the declaration, and that while such conti-act was 
 neither forfeited nor annulled by the plaintiff, the defendant 
 married another woman, tlien the plaintiff need neither allege 
 nor prove an offer to perform on her part — the law does not 
 require a useless act. 
 
 The jury are instructed, that a promise to marry, without any 
 sj^ecified time for such marriage being mentioned, is, in law, a 
 promise to marry within a reasonable time; and if the jury 
 believe, from the evidence, that such a contract for marriage 
 
 existed between the parties to this suit, as is alleged in the 
 
 count of the declaration, and that a reasonable time had elapsed 
 since the making of such contract, and before the commence- 
 ment of this suit, and that the defendant unjustifiably failed on 
 his part to fulfill such contract, or has married another woman, 
 then the jury should find the issues for the plaintiff; and in case 
 of the marriage of the defendant the plaintiff need not show a 
 request to him to perform his part of his contract with her. 
 
 Uncliastity no Defense, When. — The court instructs the jury, that 
 when a party enters into an engagement to marry with a knowl- 
 edge that the other party is unchaste, he will be deemed to have 
 w^aived the objection, and cannot afterwards set it up as a reason 
 for his refusal to comply wdth his promise ; but if either party 
 shall be guilty of acts of uncliastity subsequent to the engage- 
 ment, the other party is absolved from the contract, whether 
 such subsequent acts be known to the latter or not. 2 Pars, on 
 Cont., QQ; Sprague vs. Craig^ 51 111., 28S; Densloto vs. Van 
 Horn, 16 la., 476. 
 
 Desirability of Party Contracting. — The court instructs the jury, 
 that in actions of this kind the jury should not take into con-
 
 92 INSTRUCTIONS 
 
 sideration the desirability of the defendant as a husband, nor 
 whether the parties would be likely to live together happily 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. 
 
 Breach of Promise, How Proved. — The jury are instructed, that 
 under a declaration alleging a promise to marry upon recpiest, 
 direct and positive proof of request and refusal are not recpiired ; 
 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. 
 
 The jury 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 the jury find, from the evidence, that 
 there was a valid subsistino; 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 the jury further 
 Ijelieve, from the evidence, that after the expiration of a reason- 
 able 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 purpose, called upon the defendant 
 and requested him to marry the plaintiff, and that he refused 
 and neglected to do so, then the jury should find the issues for 
 the plaintiff. 
 
 And the court further instructs the jury, that if they believe, 
 from the evidence, that the father of the plaintiff, acting for her, 
 for that purpose, called upon the defendant and requested 
 him to marry the plaintiff, the jury 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. 
 
 Subscription Paper. — The court instructs the jury, that where 
 money is promised to be paid upon a subscription paper, and 
 the j)romise is based upon the fulfillment of certain conditions,
 
 IN CIVIL ACTIONS. 93 
 
 or tlie performance of certain work, or the attainnicnt of certain 
 objects, set forth in tlie instrument subscribed, then the per- 
 formance of the conditions, or tlie laljor, or tlie attainment of 
 the object is sulficient consideration to support the promise to 
 
 pay. 
 
 And in such a case, it is not necessary that the parties named 
 in the instrument should themselves perform the conditions; it 
 is sufficient if, upon the faith of the subscription, the condition 
 lias been performed by some one. 1 Pars, on Cont., 452; Con- 
 gregational Society, etc., vs. Perry, 6 N. II., 164; Miller vs. 
 Ballard, 4G 111., 377; State, etc., rs. Cross, 9 Yt., 289. 
 
 If the jury believe, from the evidence, that the defendant 
 signed the subscription paper introduced in evidence, and that 
 the plaintiff, on the faith of that subscrij)tion, went on and (built 
 the church) and became personally liable for the cost thereof^ 
 and that the defendant has not paid his subscription or pro rata 
 share thereof, the jury should find the issues for the plaintiff. 
 Prijor vs. Cain, 25 111., 292. 
 
 If the jury believe, from the evidence, that the defendant a;t- 
 tended a public meeting in the town of , called for the pur- 
 pose of adopting measures for (building a churcli) 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 accomplished, 
 
 and that the plaintiff, relying upon said promises so made by 
 the defendant and others, went on and performed labor, or ex- 
 pended time and money, and completed the said , then 
 
 said defendant would be liable in this action; if the jury find, 
 from the evidence, that he has not paid the amount so pi-omised 
 by him, then the jury should find for the plaintiff. ^Yilson vs. 
 McClure, 50 111., 366. 
 
 The court instructs the jury, that in this class of cases, if all 
 the money subscribed was necessarily expended in securing the 
 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
 
 94 INSTRUCTIONS 
 
 necessarily expended, then the recovery should be limited to 
 the jpro rata share of the amount necessarily expended, less the 
 suras, if an}', already paid. Miller vs. Ballard, 46 111., 377. 
 
 Composition Agreement* — On effecting a composition agreement, 
 the law demands the utmost good faith on the part of the 
 debtor. He cannot be permitted to induce a creditor to accept 
 a part of a debt in lieu of the whole, by pretending to be insol- 
 vent, when, in fact, he is not so, and thereby defraud his credit- 
 ors out of a portion of their just debts. 
 
 Where a composition agreement is made, the debtor professes 
 to deal with all the creditors who enter into it, on terms of j)er- 
 fect equality, and if at the same time, he has a secret agree- 
 ment with one of the creditors, which gives him an undue ad- 
 vantage, this is a fraud upon the other creditors, which vitiates 
 the composition agreement, and in such case a creditor, although 
 he may have received the amount named in the composition 
 agreement, may sue for and recover the full amount of his 
 original demand, less the amount received under the composi- 
 tion agreement. Ilefter vs. Calm, 73 111., 296. 
 
 In this case, if the jury 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 ad- 
 vantages, other than as specified in such agreement, and that the 
 said plaintiff, when he signed the same and received his divi- 
 dend 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 his original demand, less the amount received 
 under the composition agreement. 
 
 And in this case, if the jury 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 that {<:inij matter as to his pecuniary conditioii) for 
 the purpose of inducing the plaintiff to sign the said agreement, 
 and that the said plaintiff believed such statements and repre- 
 sentations to be true, and was thereby induced to sign the said
 
 IN CIVIL ACTIONS. 95 
 
 agreement; then, if the jury 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 his original claim, less the amount received 
 under the composition agreement. Armstrong vs. M. JV. Banh, 
 6 Biss., 520; Elfelt vs. Snow, 2 Sawyer, 94. 
 
 Sale of Personal Property— Future Delivery.— If the jury believe, 
 from the evidence, that in the winter of IS 79, the defendant 
 sold to the plaintiff, and the plaintiff purchased the best sixty 
 head of cattle out of defendant's herd, that he was then feeding, 
 to be delivered to the plaintiff between the 1st and the 15th 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 defendant 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 
 l)y 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 
 j)laintiff in this action, and the measure of damages is the differ- 
 erence, 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 the jury 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 $ — per 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 further, that 
 during the said month of April, the plaintiff demanded 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 neerlected to deliver the o-rain in
 
 06 INSTRUCTIONS 
 
 accordance with such demaiicl; and if the jury further l)elieve, 
 from the evidence, that at the time of such demand the market 
 price of such wlieat at the said city of S. was more than the said 
 agreed price, then the jury should find for the plaintiff. Sleuter 
 vs. Wallhaum, 45 111., 43. 
 
 No Demand Need 1)6 Made, When. — If the jury believe, from the 
 evidence, that the defendant made with the plaintiff the agree- 
 ment set out in either count of the plaintiff's declaration, and 
 that before the time for the delivery of the cattle tlie detendant 
 put it out of his power to comply with said agreement, on his 
 part, then it was unnecessary for the plaintiff to 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 upon. 
 
 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, notwithstanding it was 
 beyond his power to perform it. WalJcer vs. Tackei\ TO 111., 
 527. 
 
 The court instructs the jury, 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 sj^ecified dav, 
 inclemency of the weather, bad condition of the roads, sickness, 
 or other unforeseen contingency, furnishes no excuse for the 
 non-performance of the contract, unless it be expressly so pro- 
 vided in the contract. Kritzinger vs. Sanhorn, 70 111., 14G. 
 [See Act of God; also Part I. Sec. 20.] 
 
 Plaintiff must Show Readiness to Perform. — The court instructs 
 the jury, as a matter of law, tliat in a suit by a purchaser of 
 articles of personal property, to be delivered to him at a certain 
 time and j^lace, 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 i>lace. 
 Kritzinrjer vs. Sanhorn^ 70 111.^ 146.
 
 IN CIVIL ACTIONS. 97 
 
 If the jury 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 the same, as stated and alleged in such 
 count; and if they further l)elieve, frcjm the evidence, that the 
 defendant failed to perform his part of 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". 
 
 [See Part I., Sec. 17.] 
 
 And in such case, the measure of damages is the difference 
 between the contract price and the market value of the same 
 grain at the time and place where it should have been delivered 
 under the contract. 3Ietz vs. Albrecht, 52 111., 491. 
 
 The court instructs the jury, that while in a suit by a pur- 
 chaser 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 
 willing to receive and pay for the property at such time and 
 place; still, it is not necessary that these facts should be proved 
 by direct testimony thereto; they may be proved by the facts 
 and circumstances 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 selling 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 willing to receive 
 the property and pay for it at the time and place agreed upon, 
 and this may be proved by the facts and circumstances appear- 
 ing 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. 
 
 Tender of Performance. — The jury are instructed, that if one 
 party to a contract is able and ready, and offers to perform the 
 agreement on his part, but is prevented from performing by the 
 other party, then such offer will be treated as excusing non-per-
 
 98 INSTRUCTIONS 
 
 formaiice by the party offering, and he may recover the dam- 
 ages, if any, sustained in consequence of not being allowed to 
 perform on his part. 
 
 [For the Law of Warranty, See Warranty.] 
 
 Option Contracts. — The jnry 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 
 privilege of calling or not calling for the grain, just as they 
 choose, and which, on its maturity, is to be filled by adjusting 
 the differences in the market value, is an option contract, in the 
 nature of a gambling transaction prohibited by law\ Pickering 
 vs. Cease, 79 111., 328; Li re. Green., T Biss., 338; Hudolf vs. 
 Winters, 7 Neb., 125. 
 
 CUSTOM AN D USAGE. 
 
 Custom and Usage Enter Into and Form Part of a Contract. — The 
 
 court instructs the jnry, as a matter of law, that when a contract 
 is entered into, the parties are supjDosed to have reference to the 
 known nsages 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 pi-esumption is 
 rebutted by the agreement itself. 
 
 That 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 
 vs. Cole, 120 Mass., 37; Carter vs. Phila. Coal Co., 77 Penn. 
 St., 286. 
 
 That although the usages of trade cannot be set up to contra- 
 vene an established rule of law, or to vary the terms of an ex- 
 press contract, yet all contracts made in the ordinary course of 
 business, without particular stipulations to the contrary, are pre- 
 sumed to be made in reference to the usages and customs of 
 such trade, if any such exist. Lonergan vs. Stewart, 55 111., 41:. 
 
 That a usage of trade, in order to be binding upon the parties, 
 must be generally known and established among those who are
 
 IN CIVIL ACTIONS. 99 
 
 engaged in the business where the usage is claimed to exist, and 
 so well settled and so nniforndy acted upon as to raise a fair 
 presunij)tion that it was known to both the contracting parties, 
 and that they contracted in reference to it, and in conformity to 
 it. Lyon dc Co. vs. ddhertson, 83 111., 33; Cojfman et al. vs. 
 Campbell c& Co., 87 111., 98; Couch vs. The Watson Coal Co., 
 46 la., 17. 
 
 The court instructs the jury, that a custom, to be binding as 
 such, must be general and uniform in the place or in the Ijranch 
 of business where it is claimed to exist. It must be certain, 
 reasonable, and sufficiently ancient to afford the presumption 
 that it is generally known. Leggat et al. vs. Sands A. Co., G»J 
 111., 158; Randall et al. vs. Smith, 63 Me., 105. 
 
 Factors Presumed to Conform to. — That, when one person em- 
 ploys another to transact for him a particular business, at a par- 
 ticular place or market, the employer 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. 
 
 That 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 par- 
 ticular 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. 
 
 [See Factors and Commission Me7i.]
 
 100 INSTRUCTIONS 
 
 DEMAND AND REFUSAL. 
 
 Wliat Constitutes. — The court instructs the jury, that no par- 
 ticular form of words is necessary in making; a demand for the 
 possession of property before bringing a suit. If the jury be- 
 lieve, from the evidence, that, before connnencing this suit, the 
 plaintiff had an interview with the defendant, and that, from 
 the language then used by plaintiff, the defendant understcxxl 
 the plaintiff came for, and was asking to have the property in 
 dispute given up to him, and that, with that understanding, de- 
 fendant said "''■ * * * this in law would be equivalent to 
 a demand and refusal. 
 
 The court instructs the jury, 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 tliat 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 authorized 
 to receive the possession, and then and there present to re- 
 ceive it. 
 
 To constitute a legal demand of property, 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 particular 
 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 property, and in- 
 forms him, by reference or otherwise, what property he desires 
 possession of, is sufficient to constitute a demand. 
 
 Demand by Agent— Gr round of Refusal Must be Specified.— The court 
 instructs the jury, that a party holding property, which he re- 
 fuses 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
 
 IN CIVIL ACTIONS. 101 
 
 at tlic time, the party cannot, after suit is brought, place his re- 
 fusal upon (lilterent grounds, as an excuse for not delivering the 
 property. 
 
 That when a demand is made by an agent, and the person 
 from whom the demand is made has reasonable grounds for 
 doubting the agent's authority, he may lawfully refuse to com- 
 ply with the demand. The evidence of agency should be such 
 as an ordinarily prudent 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. 
 Ingalls vs. Bulkley^ 13 111., 315. 
 
 DEBT — N BOND. 
 
 Note.— Suit on replevin bond given to the coroner— Property replevied 
 from the sheriff, who held it on writ of attachment— Plea, non eat factum— 
 Defence by the sureties, that they signed the bond in blank. 
 
 Pi-esumpliou from Proof of Signature. — The court instructs the 
 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 defendants, after the body of 
 the bond was filled up, as it now appears to be; and that it was 
 regularly and properly delivered to the plaintiff, as coroner, in 
 its present condition, and that all the defendants intended it 
 shoidd be so delivered. 
 
 If the jury 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 
 ao-ent, with the intention that the said blank should be filled, so 
 as to make the bond an apparently perfect instrument, and that 
 the same should then be delivered to the said plaintiff as a re- 
 plevin bond in said case, and that it was thereafter presented to 
 the plaintiff, and accepted by him without any notice, or knowl- 
 edge on his part, that the same was signed with the amount of 
 the penalty in blank, and that the plaintiff then had no knowl-
 
 J 02 INSTRUCTIONS 
 
 edge or notice in respect to said bond, beyond what now appears 
 upon the face of it, then the jury are instructed that said bond 
 is valid and binding upon the said defendants, and to the same 
 extent tliat it would have been if the said penalty had been 
 written in, as the same now appears, before the said defendants 
 signed the same. Smith vs. CrooJcer, 5 Mass., 538; State vs. 
 Young et al., 2^ Minn., 551; Inhabitants of S. Berwick vs. 
 Huntress, 58 Me., 89; Pepper vs. State, 22 Ind., 399. 
 
 If the jury believe, 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 proof is 
 upon the defendants to prove, by a preponderance of evidence, 
 that it was signed by them Avhile there were blank spaces in 
 said bond not filled, as the same now appear; and in such case, 
 unless the defendants have shown, by a preponderance of evi- 
 dence, that the said bond was signed by them while there were 
 snch blank spaces unfilled, then, upon that question, the jury 
 should find in favor of the plaintiff. 
 
 Sureties Bound by Action of tlieii- Principal. — Where the sureties 
 on a bond entrust it to their principal in an unfinished condi- 
 tion, it will be presumed that they intend to vest him with 
 authority to perfect the bond, and to add other sureties sutficient 
 to secure its approval; and such authority is a continuing au- 
 thority until some step is taken by the sureties towards its revo- 
 cation. Caioleij, etc., vs. The People, 95 111., 249. 
 
 If the jury believe, from the evidence, that the defendants, 
 who are sued as sureties in this case, signed the bond uj^on 
 which this suit is brought, while there was no writing in the 
 body of the paper 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 j^erfect replevin 
 bond, they then knowing of su(di blank spaces; and that after 
 they had so signed the same, they delivered it to the said T. E., 
 or to liis agent, with the understanding that such blank spaces 
 would 1)0 filled, so as to make it a perfect replevin bond, and 
 that it then would be delivered to the plaintiff, and that said
 
 IN CIVIL ACTIONS. 103 
 
 blank spaces were afterwards filled by the said T. E., his agent 
 or attorney, as they n<jw appear; and that said bond was after- 
 wai-ds presented to and accepted l)y the plaintiff as a rei)levin 
 bond in said case, then the bond is valid and binding on the de- 
 fendants, no matter what was the understanding of the parties 
 at the time the defendants signed the same; pro%aded, the jury 
 fiii-ther believe, from the evidence, that the plaintiff, when he 
 acce}ited said bond, had no notice or knowledge of such under- 
 standing or arrangement, or that the said bond had been filled 
 np otherwise than in accordance therewith. Cltu of Chicago 
 vs. Gage, 95 111., 593. 
 
 If the jury believe, from the evidence, that the said defend- 
 ants, or either of them, signed said bond while there was a blank 
 left in it for the insertion of a j^enalty, 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 the jury further be- 
 lieve, from tlie evidence, that the said bond was afterwards pre- 
 sented to and accepted by the plaintiff as the replevin bond in 
 that case, without any notice or knowledge on his part of such 
 agreement or understanding, and without any notice or knowl- 
 edge in respect thereto, then the said bond is as valid and bind- 
 ing 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. 
 
 The court instructs the jury, that although they may believe, 
 from the evidence, that the name of the defendant M. 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 the jury 
 further believe, from the evidence, that said name was written 
 in and signed to said bond before the same was accepted and 
 appi'oved by the plaintiff, as the replevin bond in the case men- 
 tioned therein.
 
 104 INSTRUCTIONS 
 
 The jury 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 principal intends 
 to fill the blanks and deliver the same to the obligee, for the 
 purpose of obtaining possession of propert}' on the faith of the 
 l)ond; and the principal afterwards fills the blanks, delivers the 
 bond, and obtains the property, 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 principal to the same 
 extent that they would be l)ound, had the blanks been filled be- 
 fore the said bond was signed by them; provided, the person re- 
 ceiving the bond, at the time he received it, had no notice or 
 knowledge that the blanks in the bond were filled up otherwise 
 than in accordance with the instructions or understanding of the 
 sureties. Butler vs. United States, 21 Wall., 272; Bartletty%. 
 The Board of, etc., 59 111., 364; Peeper vs. State, 22 Ind., 399; 
 Cltii of Chicago vs. Gage, 95 111., 593 ; McCorinich vs. Bay City, 
 23 Mich., 457; State x&. Young, 23 Minn., 551. 
 
 Where the surety in a bond signs it and delivers it to the prin- 
 cipal, with the understanding that the principal shall procure 
 others to sign the bond, before delivering it to the obligee, and 
 that after procuring such signatures, he may deliver it, and the 
 princii3al delivers the bond to the obligee without procuring the 
 signatures, the obligee, in absence of notice to the contrary, has 
 a right to presume that the princijjal was authorized to deliver 
 the bond in the condition in which it was delivered. Smith vs. 
 The Board of Supervisors, 59 111., 412. 
 
 Extent of Agent's Authority. — Tluit a special agent's authority is 
 that which is given by the terms of his appointment, or that 
 with which he is apparently clothed by the character in whicli 
 he is held out to the world by the principal. The principal is 
 equally bound by the authority which he actually gives, and b" 
 that which, by his own acts, he appears to give; and wher _^e 
 ( )f 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. 
 
 What Proved by the Record. — The court instructs the jury, that 
 tlie certified copy of the record of judgment in the replevin
 
 IN CIVIL ACTIONS. 105 
 
 case oft/. E. vs. T. M. R. and others, is sufficient evidence that 
 tlie said J. E. did nut prosecute that Suit with effect, and that a 
 return of the property replevied in that case was awarded by the 
 court to the defendants in that suit. 
 
 If the jury believe, from the evidence, and under the instruc- 
 tion of the court, that tlie bond sued on in this case was a valid 
 and binding bond upon the defendants, and that the property 
 mentioned and described in the declaration in the replevin suit 
 of J. E. vs. T. M. B. and others, was not returned to the defend- 
 ants in that suit, or to any of them, before the commencement 
 of this suit, then the jury should find the issues in this suit in 
 favor of the plaintiff. 
 
 [See Measure of Damages.] 
 
 DIVORCE. 
 
 Note. — The following instructions, relating to the subject of divorce, 
 have been prepared more 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. 
 
 Residence and Desertion. — The jury are instructed, that in 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 his wife to go with hiin, and if she re- 
 fuses, without justification, for two years, the husband will be 
 entitled to a divorce. Kennedy vs. Kennedy, 87 111., 250. 
 
 Husband has the Right to Seiect the Residence. — That the hnsl )and 
 has the right to select his domicile, and to change his residence, 
 and it is the duty of the wife to accompany him, and if she re- 
 fuses without some good and justiihible 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. Bab- 
 hitt vs. Babhitt, OU 111., 277; 1 Bishop on Mar. and J)iv., § 7SS. 
 
 Pi'OYocation lor the Wife Leavin?— Abusive Lan!^uag:o. — That while 
 the statute has not nuidc abusive language, and the application 
 of coarse and vulgar epithets, a cause for divorce, yet i^ucli con-
 
 106 INSTRUCTIONS 
 
 duct on the part of a husband toward his wife, and charging her 
 with a want of chastity without cause, if proved, is suthcient to 
 Justify her in abandoning him, and in living separate and apart 
 from him. Bishop on Mar. and Div., § 726. 
 
 The jury are instructed, that the only question presented by 
 the issues in this case is, whether or not the complainant and 
 defendant were living together as husband and wife, at, etc., on, 
 etc., and whether or not, at that time, the defendant wilfully, 
 and without just or reasonable cause, deserted the complainant 
 and his home, and has wilfully 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. 
 
 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 consti- 
 tute such a desertion as is required under the statute as a ground 
 for divorce. Cox, vs. Cox^ 35 Mich., 461; 1 Bishop on Mar. 
 and Div., § 7S3. 
 
 Absence Alone not Proof of Desertion. — The jury are instructed, 
 that absence alone does not constitute desertion. To constitute 
 desertion, within the meaning of the law, there must not only be 
 absence, bnt this must be coupled with an intention, on the part 
 of the i^arty charged, to desert and permanently abandon the 
 other party; and in this case, if the jury find from the evidence, 
 that when the defendant 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. 
 
 And in such case, before the complainant w^ill be entitled to 
 a divorce on the ground of desertion, the jury must further be- 
 lieve, from the evidence, that after defendant left he changed 
 his mind, and then determined not to come or send for com- 
 plainant, bnt did intend, from that time, to desert and abandon 
 her, and that such change of intention occurred two years or 
 more before the commencement of this suit. 1 Bishop on Mar. 
 and Div., § 783.
 
 IX CIVIL ACTIONS, lOj 
 
 Separation by Mutual Consent— Desire for Reconciliation. — AltlioiiL^h 
 the jury may believe, from the evidence, that at one time the 
 parties to this suit separated, by mutual consent, still, if the jurv 
 further believe, from the evidence, that afterwards the com- 
 plainant desired to renew her marriage relations with the de- 
 feudant, and in good faith sought a reconciliation, and expressed 
 a desire to have him return and live with her, and that he 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 Mar. and Div., § 786. 
 
 Although the jury 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 the jury further believe, from the evidence, that this request was 
 coupled with the qualification or condition that, etc., such a rjual- 
 ification 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., § T86. 
 
 Grounds of Desertion by TTife. — The jury are instructed, that 
 adultery on the part of the husliand, if known to the wife {or 
 extreme and repeated cruelty, or hahitual dritnkenness for the 
 period of tico years), if proved, is a good and sufficient cause to 
 justify a wife in leaving her husband and living separate and apart 
 from him. Schouler's Dom. Rel., 90; Stevens vs. Story, 43 Yt., 
 327; Hancock vs. MeiricJc, 10 Cusli., 41; Rea vs. Durhee, 25 
 111., 503. 
 
 Adulter}' 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 evidence in the 
 case, and unless the jury believe, from the evidence in this case, 
 that the complainant did, prior to defendant's leaving him. or 
 during her absence, commit adultery, then the defendant was 
 not justified in leaving complainant and remaining absent from
 
 108 
 
 INSTRUCTIONS 
 
 ]iiin for the space of two years — if the jury believe, from the 
 evidence, that she did so leave and remain absent — simply be- 
 cause of any suspicions of adultery which she may have enter- 
 tained, in respect to her husband and {these women, or either of 
 them). 
 
 The jury are instructed, that if they believe, from the evi- 
 dence, that at the time defendant left complainant — if they be- 
 lieve, from the evidence, she did so leave, as charged — com- 
 plainant was the head of a family consisting of, etc., and con- 
 tinued to live with such family, then lie 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 adultery with such persons. 
 
 Cruelty as an Excuse for Desertion. — The court instructs the jury, 
 as far as relates to the alleged acts of cruelty, that if they be- 
 lieve, from the evidence, that the defendant did leave the com- 
 plainant, and remained aM^ay from him, as charged in the bill, 
 then to justify such leaving and absence, upon the ground of 
 cruel treatment, tlie jury must believe, from the evidence, that 
 the complainant actually committed an act, or acts, of personal 
 violence to the person of the defendant, 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 deser- 
 tion has been proved ; nor would threats of violence justify the 
 alleged desertion, if it has been proved, unless they vrere made 
 under such circumstances as would justify a reasonable appre- 
 hension of bodily injury in case she remained. 
 
 The jury are instructed, that such cruelty as would authorize 
 a married woman to leave the house and home of her husband, 
 must be acts of physical violence inflicted by him upon her per- 
 son; or such demonstrations or threats of actual violence, made 
 by him 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. Carter vs. 
 Carter, 62 ill., 439.
 
 IN CIVIL ACTIONS. 109 
 
 Acts of Cruelty Must be Apprehended at tlic Time. — With reference 
 to the alleged acts of cruelty, ^vhi(•h are claimed to have justified 
 defendant's wife in leaving him, the court instructs the jury, 
 that it is not material what had formerly been the treatment of 
 his wife by the defendant, if the jury believe, from the evidence, 
 that after all the improper treatment had ceased, she continued 
 to live with him, without complaint or objection, and there was 
 no repetition of bad treatment at the time she left, and no rea- 
 sonable ground to fear or apprehend such treatment, at the time 
 she left, then the law presumes that the former offenses, if there 
 were any, had been forgiven, and they would not justify her in 
 leaving. 
 
 Adultery as a Ground for Diyorce. — The court instructs the jury, 
 that on a charge of adultery, as a ground for divorce, a prepon- 
 derance of evidence is sufficient to estaV)lish 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., 548. 
 
 Adultery Must be Proved. — The jury are further instructed, 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 intent or motive as to . 
 a guilty one. 
 
 That wliere 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 evidence 
 may as well be explained upon the hypothesis of innocence as 
 of guilt, then the jury should always adopt the former rather 
 than the latter hypothesis. Chestnut vs. Chestnut, 88 111., 54-8. 
 
 The jury are instructed, that it is wholly immaterial, in this 
 case, whether the complainant has or has not committed adultery 
 with the said A. B., or with any other woman, since the commence- 
 ment of this suit, as there is no such issue on trial before the 
 
 jury. 
 
 Extreme and Repeated Cruelty as a Ground for Divorceo — The court 
 instructs the jury, that tlie extreme and repeated cruelty required 
 to constitute a cause for a divorce, must be physical harm, as
 
 110 INSTRUCTIONS 
 
 contradistinguished from harsh or opprobrious Language, or even 
 mental suffering. The crueUy must be grave, and subject the 
 person to great bodily harm, Henderson vs. Henderson, S8 
 III, 248. 
 
 That a single act of cruelty does not constitute sufficient 
 grounds for a divorce. There 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. Ernbre vs. Enibre, 53 111., 391. 
 
 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 in- 
 toxicated, 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 defendant has been guilty of 
 extreme and repeated cruelt}^ 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. 
 
 Personal Yiolence JIust be Shown. — That when a charge of ex- 
 treme and repeated cruelty is the ground of application for di- 
 vorce, unkind treatment, threats of personal violence, abusive 
 language and opprobrious ejDithets, if proved, without personal 
 violence, do not constitute that degree of extreme and repeated 
 cruelty which the law requires, to authorize a decree of divorce 
 for that cause. 
 
 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 be 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 circumstances, as to justify 
 the complainant in reasonably apprehending, at the time that 
 the bill is filed, that the acts of violence or cruelty will be re- 
 peated if she continues to live with tl\e defendant in the relation 
 of husband and wife.
 
 IN CIVIL ACTIONS. Ill 
 
 To authorizo a divorce, oii tlie ii;roun(l of extreme ami repeated 
 cruelty, the acts complained of must consist of physical violence, 
 or such as cause Ixxlily pain and suft'erin/^. Mere an<^rv or 
 abusive words, i)rofane lani!;uage, menaces or indignities, do not 
 constitute cruelty, within the meaning of our statute. 
 
 Acts of Cruelty Must be Recent. — Even if tl/e jnryshovdd believe, 
 from the evidence, that the defendant has Ijeen, at some former 
 time, guilty of extreme and repeated cruelty toward the com- 
 plainant, still, if they believe, from the evidence, that for sev- 
 eral years after that, and before the filing of this bill, the parties 
 had lived together as man and wife, and that defendant's treat- 
 ment of his wife, before and at the time of the filing of the bill, 
 was such that she had no reasonable ground for apprehending 
 a repetition of cruel treatment when the bill was filed, the jury 
 should find the defendant not guilty. 
 
 Reason to Fear Cruelty Must Exist When Bill is Filed. — The court fur- 
 ther 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 had been practiced 
 before, then such a state of facts and circumstances must appear 
 from the evidence as afforded a reasonable ground for the com- 
 plainant to believe that she would, in the future, receive from 
 her husband such a degree of bodily injury as to render it im- 
 proper for her to continue to live with him; and unless the jury 
 believe, from the evidence, that there was, at the time the bill 
 in this case was filed, reasonable grounds for the complainant to 
 apprehend such cruel treatment fi-om the defendant, in the 
 future, then they should find for the defendant. 
 
 To authorize a divorce, upon the ground of extreme and re- 
 peated cruelty, there must be acts or threats made recently be- 
 fore the filing of the bill; or the cii'cumstancos must be such as 
 to raise a reasonable apprehension of bodily hurt, and show a 
 -state of personal danger of injury, incompatible with the duties 
 of married life, at the time the bill is filed.
 
 112 INSTRUCTIONS 
 
 The court instructs the jury, 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 reason- 
 able cause to fear a continuance of such treatment; and in de- 
 termining these questions, the jury should not be influenced i'l 
 their judgment by any considerations other than such as bea.' 
 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 the jury believe, from the evidence, that the defendant had 
 been guilty of cruel treatment toward the complainaut, 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; to authorize a verdict against tho 
 defendant, it must also appear, from the evidence, that at tho 
 time the complainant filed her bill in this case, she had reason:i- 
 ble cause to apprehend a repetition of such treatment in the 
 future. 
 
 The courts do not grant divorce on the ground of cruel treat- 
 ment, as a punishment of offenses long since committed ; when 
 they do grant divorces upon that ground, it is to prevent the 
 commission of such offenses in the future. 
 
 Acts of Cruelty Provoked by Complainant, — If the jury believe, 
 from the evidence, that defendant has been guilty of acts of vio- 
 lence 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. 
 
 The law will not authorize the granting of a divorce, on the 
 ground of extreme and repeated cruelty, if the acts complained 
 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 misconduct of the
 
 IN CIVIL ACTIONS. IK' 
 
 coiupluiiiiint, unless the violciiee of tlie (lefeiidant, in Biicli case, 
 is out of ill I jji-oportion to the provocation. 
 
 The hiw will not permit a person, by her misconduct, to wan- 
 tonly provoke injury, and make the injury thus received aground 
 for divorce, uidess the injury is out of all proportion to the provo- 
 cation. The law considers, in such cases, that the person com- 
 plaining has the remedy for all ordinary injuries in his own 
 hands, and that there is no occasion to resort to a court of erpiity. 
 
 Cruelty Provoked by a Refusal to Cohabit. — The court instructs the 
 jury, that if they believe, from the evidence, that the complain- 
 ant unreasonably, and without sufficient cause, refused to accord 
 to the defendant the marriage rights of cohabitation, and 
 that the treatment complained of was provoked by such re- 
 fusal, then the complainant is not entitled to a verdict in this 
 cause, unless it appears, from the evidence, that the injuries 
 complained of were out of all proportion to such provocation. 
 
 The law imposes upon the husband and wife the duty of ac- 
 cording, each to the otlier, the right of sexual intercourse, to a 
 reasonable extent, unless there be some physical cause render- 
 ing such indulgence improper or unhcalthful, and that a with- 
 holding of such riglit, if prompted or induced by motives of 
 dislike, or without proper cause, if proved, is such conduct as the 
 jury may properly consider in determining whether there was 
 provocation for the cruelty charged or proven. ■ 
 
 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 complainant 
 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 ex- 
 aggcrate<l views and impressions of what is actually occurring 
 around them; and if the jury further believe, from the evidence, 
 that the mind of the complainant at these times was so affe(;ted, 
 then these facts are pi-oper 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 commission of such offenses. 
 
 8
 
 114: INSTKUCTIONS 
 
 The court instnicts the jury, that the testimony of the doctors 
 {and the medical toorks 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 evi- 
 dence in the case, and considered by them in connection with 
 all the evidence in the case, in arriving at a verdict. 
 
 Burden of Proof. — The court instructs the jury, that the com- 
 plainant is bound to establish her case by preponderance of evi- 
 dence; 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 ver- 
 dict, 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 satisfactory conclu- 
 sion as to the truth or falsity of the charges against the defend- 
 ant, then the jury should find the issues for the defendant. 
 
 Condonation. — The court instructs the jury, that in the case of 
 condonation, there is an express or implied agreement that the 
 party forgiving does so only on the condition that the party for- 
 given will not repeat the oifense, but will, in the future, perform 
 all the marital duties the relation imposes. Kennedy vs. Kennedy^ 
 87 111., 2.50. 
 
 That condonation is forgiveness upon condition that the in- 
 jury shall not be repeated, and it is dependent upon future 
 good usage and conjugal kindness; and it must be free, and not 
 obtained by force and violence, or by fraud. 2 Bishop on Mar. 
 and Div., § 33. 
 
 The jury are further instructed, that condonation of personal 
 acts of violence and cruelty may be avoided by abusive language, 
 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 infidelity, 
 conclude that it will end as on former occasions, in personal vio- 
 lence, and she is not bound to wait and submit to personal vio- 
 lence. Farnham vs. Farnliam^ T3 111., 497. 
 
 The court instructs the jury, that the law is, that if the injured 
 party, husband or wife, cohabits wnth the other, subsequent to
 
 IN CIVIL ACTIONS. 
 
 li; 
 
 an adulterous offense, tlie party injured liavin«,' the ability to 
 prove the fact, it will be a bar to a proceeding for divorce for 
 that offense, tlie offense being considered as thereby condoned ; 
 but the court further instructs the jury, that condonation is 
 always accompanied with the implied condition that the injury 
 shall n(.t be repeated, and that the offending party will there- 
 after treat the other with conjugal kindness, or the offense will 
 be revived. Davis vs. Davis, 10 111., 334; 2 Bishop on Mar. 
 and Div., § 43. 
 
 DELIVERY OF DEEDS. 
 
 Deed Takes Effect from Time of Delivery. — The court instructs the 
 jury, that when the date of a deed and the delivery are differ- 
 ent, a deed of real estate takes effect from the date of its deliv- 
 ery, and not from the date of the deed. 
 
 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 control it, 
 and with the right to recall it. 
 
 And if the jury believe, from the evidence in this case, that 
 the defendant executed the deed in question, sent it to the re- 
 corder's office, and had it recorded, and then received it back 
 again into his possession, such facts alone would not constitute a 
 delivery, and no title would pass until such deed was delivered 
 to the grantee or to some one for him. 
 
 No Particular Form or Ceremony Necessary. — The court instructs the 
 jury, that no particular form or ceremony is necessary to consti- 
 tute a delivery of a deed. It may be by acts without words, or 
 l)y words without acts, or by both; anything which clearly man- 
 ifests the intention of tlie grantor and of the person to whom it 
 is delivered, that the deed shall then become operative and ef- 
 fectual, that the grantor shall lose all control over it, and that 
 by it the grantee is to become possessed of the estate, is a suffi- 
 cient delivery. GunneU\'&. CocJceriU, T9 111., 79. 
 
 A deed may be delivered to a stranger, for the benefit of the 
 grantee named in the deed, who may be ignorant at the time that
 
 116 INSTRUCTIONS 
 
 the deed has been made, and if the grantee, when informed of 
 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. Featherstone et al., 37 Wis., 632; 
 Concord Bank vs. BelUs, 10 Cnsh., 276. 
 
 That the question of the delivery of a deed is one of act and 
 intent 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 deliv- 
 ery, it must be delivered by the grantor and accepted by the 
 grantee, or by some one authorized by him, with the intention 
 that it shall then be an operative instrument, according to its 
 terms. Steele vs. Miller, 40 la., 402; Stiles vs. Probst, 69 
 111., 362. 
 
 The jury are instructed, that the delivery of a deed need not 
 necessarily be made to the grantee himself. If made to any per- 
 son 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. Thomas vs. Candor, 60 111., 244. 
 
 Official Boud, Hoav Delivered and Accepted. — The jnry are in- 
 structed, that the delivery of a bond {of county treasurer) is not 
 complete until it is accepted and approved by the board of super- 
 visors. The bond can only be accepted or rejected by the board, 
 as an organized body ; the power cannot be delegated. Cawley 
 vs. The^People, 95 111., 249. 
 
 EJECTMENT. 
 Only Legal Titles Involved.— (ir/tere Common Law Rule Prevails.) — The 
 court instructs the jnry, that in an action of ejectment it is only 
 the legal rights of the parties, as distinguished from their equi- 
 table rights, that the jury have a right to consider. In this case, 
 if the plaintiff shows a legal title to the 2:)remises in controversv 
 as explained in the following instructions, then no equitable right 
 in the defendant will bar the i^laintiff's right of recovery, Tyler 
 on Eject., 36, 564; Sims vs. Gray, 66 Mo., 613; Dawson vs.
 
 INCIVIL ACTIONS. 117 
 
 Ilayden, 07 111., 52; Buell vs. Trwin, 24 Mich., 145; Whijtex^. 
 Smith, 4 Sawyer (Oreg.), 17; Philljpotts vs. Blasdell, 8 Nev., Gl. 
 
 Olio ill Possession of Real Estate Presumed to be Owner. — That while 
 it is true that, to entitle the plaintiff in ejectment to recover, ho 
 must not only show title in himself, hut he must also show that 
 he was entitled to the possession of the premises at the commence- 
 ment 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 property, unless the other party shows 
 some valid legal right to the possession of the property, as against 
 the true owner. 
 
 Paper Title Shown by Plaintiff. — The court instructs the jviry, 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, unless the defendant 
 has shown an adverse possession to the same, or to some part 
 thereof, as explained in these instructions, for a period of twenty 
 years or more, befoi'e the commencement of this suit. 
 
 Right to Possession Must be Shown. — The jury are instructed, that 
 to entitle the plaintiff to recover in this case, it is not sufficient 
 for him to show 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 commencement of this suit, 
 the plaintiff was then entitled to the possession of the premises. 
 Kilgonr vs. GocJdey, 83 111., 109; Gustin vs. Barnhain, 34 
 Mich., 511; Lotz vs. Briggs, 50 Ind., 346; Williams vs. Mur- 
 phy, 21 Minn., 534; San Felipe, etc., vs. Belshaio, 49 Cal., 655. 
 
 Title Can Only be Conveyed by Deed. — The jury are instructed, 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 aiul delivered by 
 the person holding the legal title, or else executed and delivered 
 by some one authorized, in writing and under seal, by the per-
 
 118 INSTKUCTIOXS 
 
 son holding the legal title, to make such deed for and in the 
 name of such owner. {In some states a seal is dispensed lolth 
 hy statute.) 
 
 Title Deduced from a Common Source. — The court instructs the 
 jury, as a matter of law, that whei'e both parties, in an action of 
 ejectment, claim to derive title through or under the same per- 
 son, then neither party is bound to show title back of that per- 
 son; and the one having the better title bv right from that 
 common source has the better title for all the purposes of the 
 suit. Miller \s. Hardin, O-l Mo., 545; Sped vs. Gregg, 55 
 Cal., 198; Morrison vs. Wilkersen, 27 la., 371. 
 
 Both Parties Claim Under "J. W." — The jury are instructed, 
 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. nnist be regarded by the jury as the legal owner of the 
 premises for all the purposes of this suit. 
 
 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, endorsed 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 H. M. 
 is sufficient to vest a legal title to an undivided half of the 
 premises in question in the said E.. M. from the time that deed 
 was made and delivered to him. 
 
 Priority of Deeds. — 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 the jury believe, from the evidence, that after McK. had 
 received his deed, and had had it recorded, the defendant also 
 took a deed for the same land from the said J. AY., and went 
 into possession under that deed, and made lasting and valuable
 
 IN CIVIL ACTIONS. 119 
 
 improvements on tlic land without any authority from the 
 })hiiiitiffs, or either ot" tlieui, then the takini^ of such possession, 
 and the making of said improvements, will not affect the plain- 
 tiff's right to recover in this suit. Compensation for such im- 
 provements, if any ought to he made, will be determined here- 
 after in future proceedings before this court. 
 [See Part I., Sec. 18.] 
 
 Plaintitrs Deed by way of Morti?ag'e. — 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 sum of money 
 or not. If it was so made, it was sufficient to vest the legal title 
 to the premises in McKay, 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 plain- 
 tiffs to sustain this a(;tion, unless the jury find, from the evi- 
 dence, under the instruction of the court, that the defendant had 
 some right to the possession of the property other than such as 
 he ac(piired by his alleged purchase from the said J. W. under 
 the deed introduced in evidence by the defendant. Biggen vs. 
 Bird, 55 Ga., 650. 
 
 If the jury believe, from the evidence, that McK.'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 all 
 been paid, 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, l)ut until such reconveyance the plaintiff remains the 
 legal owner of the land. 
 
 Even though the jury may believe, from the evidence, that tho 
 deed fi-om J. W. to the plaintiff, McK., 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, Tlie deed, though a mortgage, would still be suf- 
 ficient 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.
 
 120 INSTKUCTIONS 
 
 Possession Prima Facie Evidence of Title. — The court instructs the 
 jury, that iu an action of ejectment, prior peaceable possession 
 I)}' tlie plaintiff claiming to be the owner in fee, if proved, is 
 2)rima facie evidence of ownership and seizin, and is sufHcient 
 to authorize a recovery unless the defendant shall show a better 
 title. Sherwood vs. St. Paul, etc., Rd. Co., 21 Minn., 127; 
 Barger vs. Hoohs, 67 111., 592 ; Davis vs. Thompson, 56 
 Mo., 39. 
 
 That a i3erson 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 sho^v in what manner, or by 
 what title, he holds, until the plaintiff shows a better title. 
 Dottj vs. BurdicJc, 83 111., 473. 
 
 That of)en, visible and actual possession and occupation of 
 real estate by a person claiming to be the owner, is jprima 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 the jury believe, from the evidence, that for some years 
 before, and uji to the time that J. W. delivered the deed of the 
 land in question to the plaintiff, McK., the said J. W. was in 
 the actual, open and visible possession and occupation of the 
 lands in question, claiming 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, introduced 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. 
 
 First Possessor Has the Better Title. — AVhen both parties, 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 jDroperty. Martin vs. Bonsach, 61 Mo., 556; Clark vs. 
 Clark, 51 Ala., 498; Lum vs. Eeed, 53 Miss., 73; Jones vs. 
 Easley, 53 Ga., 454; Southmayo vs. Henley, 45 Cal., 101.
 
 I N C I V I L A C r I O N S . 121 
 
 Deed from Party in Possession Claiming- Title. — Tlic court instructs 
 the jury, that if they believe, from the evidence, 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 suffi<nent jyrima 
 facie to vest the title in the plaintiff as against tlic defendant; and 
 if the jury further believe that that deed was recctrded in the re- 
 corder's office of this county, etc. ; and, also, that after that date the 
 defendant went into the possession of the land without any riglit 
 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. 
 
 ADVERSE POSSESSION. 
 
 Note. — As a general 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 ad- 
 verse possession, are determined by the presence or absence of color of 
 title; and those distinctions should be borne in mind. 
 
 Title by Prescription— Witliout Color of Title. — The court instructs 
 the jury, that by the laws of this state, if a person goes into the 
 possession of real estate, under a claim of title, and continues 
 in the oj^en, exclusive, and uninterrupted possession of the 
 premises under such claim of title, for the period of [Uventy) 
 years, he will be deemed to be the true owner thereof. 
 
 That if the true and real owner of land permits another to take 
 possession of the land, claiming it as liis 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 possessor, and forever after prevent 
 such true owner from taking possession of the property; but in 
 order to have this effect, the conmiencement of the possession 
 must have been hostile to the rights of the true owner, and must 
 be continued, openly and publi(;ly, for the full period of {ticenti/) 
 years, under a claim of ownership, during all that time. Peter- 
 son vs. MeCullough, 50 Ind., 35; Bradley \&. West, 60 Mo., 
 33; Ambrose vs. Baley, 58 111., 506.
 
 122 INSTEUCTIONS 
 
 Must be Hostile in its Inception. — The jury are instructed, that ad- 
 verse possession, sufficient to defeat the legal title, inust be hos- 
 tile 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. 
 
 That although the jury may believe, from the evidence, that 
 one A. B., more than 20 yeai-s before the commencement of this 
 suit, built a fence around the land in cpiestion ((>r otherwise im- 
 proved it), this alone does not shovv^ adverse possession in him. 
 To constitute adverse possession, it must further appeal-, 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. 
 
 Permissive Possession not Hostile. — The jury are instructed, that 
 if a person enter into the possession of the lands of another, with 
 the consent of the owner, for any other purpose except to claim 
 the land as his own, such possession alone,, no matter how long it 
 is continued, will never bar the right of the owner to take pos- 
 session of his land when he sees fit to do so. 
 
 Possession Subservient to the True Owner. — That where possession 
 of real estate is taken under a claim consistent with or in sub- 
 ordination 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. Tyler on Eject., 217. 
 
 Possession Presumed to be Under Legal Title. — Tlie court instructs 
 the jury, that where one person is shown to have the legal title 
 to land, and another person is shown to be in possession of the 
 property, if there is no evidence to the contrary, the law pre- 
 sumes that such possession has been with the consent of the 
 owner, and not in hostility to his rights; and if the person in 
 possession sets up a claim to the land by virtue of such posses- 
 sion, the burden of proof is on him to show affirmatively, by a 
 preponderance of the evidence, not only that he has been in the 
 open, public, and notorious possession, but it must further ap-
 
 IN CIVIL ACTIONS. 123 
 
 pear, from the evidence, that sucli po.ssession was eoiinnenced 
 and continued in hostility to the true owner, and under a claim 
 of right as against him ; and these matters must he shown by clear 
 and affirmative proof of such facts as show that such possession 
 was taken and continued in hostility to such owner; the}- can 
 not be made out by inference without such pro<jf. Tyler on 
 Eject, SCO. 
 
 Paipcr 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 {Uventy) years to run in his favor. It is suffi(;ient 
 if the party take possession under claim of ownership, and hold 
 adverse possession, as explained in these instructions, for the 
 period of {twenty) years. WeJjber vs. Anderson^ 73 111., 439. 
 
 The court instructs the jury, that in order to maintain a de- 
 fense to this action, under the twenty years' limitation law, it is 
 not necessary that the defendant had a deed, or other written 
 evidence of title, but if, under a ch Jm 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 commence- 
 ment of this suit, claiming title thereto, then the plaintiif is not 
 entitled to recover. 
 
 The court further instructs the jury, that when a party enters 
 into the possession of land, which is vacant and unoccupied at 
 the 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 the jury 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 {tioenty) years, under a claim of ownership, 
 then the plaintiff is not entitled to recover.
 
 124 INSTRUCTIONS 
 
 Possession by Successive Holders. — The court instructs the jury, 
 that to constitute adverse possession, as explained in these in- 
 structions, for the period of [tioenty] years, it is not necessary 
 that the same person should liimself have been in possession uf 
 the premises for the whole of that period ; it is sufficient, if the 
 evidence shows, that he and those under whom he holds either 
 as heir or purchaser, have held such possession for tlie full peri(Kl 
 of twenty years. 
 
 The jury are instructed, that although they may believe, from 
 the evidence, that one A. B. went into possession of the lands in 
 controversy, more than {twenty) years before the commencement 
 of this suit, and held the same adversely to the rights of the 
 plaintiff, still the defendant, in this case, cannot avail himself of 
 the possession of the said A. B., unless it further appears, from 
 the evidence, that when the defendant took possession of tlie 
 land, he acquired the rights of the said A. B., by purchase, or 
 otherwise. 
 
 Deed not Necessary to Transfer Possession. — The jury are instructed, 
 that a deed is not necessary to transfer the possession of land 
 held adversely, from one person to another, and when one per- 
 son succeeds to the possession of another, and it becomes neces- 
 sary to connect the possession of the two, in order to make the 
 period required by law to bar the owner's right, the transfer of 
 possession may be shown by parol evidence; in such cases no 
 deed is required. Wehher vs. Anderso7i, 73 111., 439. 
 
 Temporary Line Fence. — In this case, if the jury believe, from the 
 evidence, that the defendant was allowed by the owner of the 
 property in controversy to take possession of it, and to build the 
 division fence off the line, as a matter of convenience to tiie 
 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 temporary convenience, and without any under- 
 standing that the property should tliereafter belong to the de- 
 fendant, then such possession, no matter how long continued, 
 will not bar the right of the plaintiff to claim and take posses-
 
 IN CIVIL ACTIONS. 125 
 
 sion of the land if he has otherwise sliown himself entitled to 
 the same. 
 
 If the jury 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 sur- 
 vey line between said lands; and if the jury 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 by 
 the existence of the fence, as establishing either an agreed 
 l)Oundary line or adverse possession to the lands in controversy. 
 Soule vs. Barloic, 49 Vt., 329. 
 
 tine 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 the jury 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 mu- 
 tually agreed npon the dividing line, and established it as be- 
 tween themselves, and afterwards occupy 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 line, it is competent for the jury to take 
 into consideration the acts and statements of the parties, the 
 acts done by each, and the fixing and adjustment of fences, and 
 improvements by them, under such alleged agreement, if any 
 such are proved, together with all the other evidence and facts 
 and circumstances proved on the trial. Cutler vs. Callison, 72 
 111., 113; Tamm vs. Kdlogg, 49 Mo., 118. 
 
 Possession Under Color of Title — Payment of Taxes — Illinois. — Tlic 
 coui't 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 possession, and shall also, dur-
 
 126 INSTRUCTIONS 
 
 iiig that time, pay all taxes legally assessed on such lands, shall 
 be held and adjudged to be the legal owner thereof to the ex- 
 tent and according to the purport 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 such 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 the same 
 statute. 
 
 Burden of Proof. — The jury are instructed, that where a party 
 sets up the statute of limitations to bar an 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 the jury, that the burden of proof 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 affirma- 
 tively, by a preponderance of evidence, the payment 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 having 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 benefit 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. 
 
 What Must be Shown Under Limitation Law. — The court instructs 
 the jury, that three things must concur in order that the statute 
 of limitations, set up by the defendant in this case, may avail as
 
 IN CIVIL ACTIONS. 127 
 
 a bar to the plaintiff's right of recovery ; provided, you believe, 
 from the evidence, under the instruction of the court, that the 
 phiintiff 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 tlie space of seven 
 successive years previous to the commencement of this suit. 
 
 3d. That the 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 
 statnte of limitation cannot avail as a defense. 
 
 The court instructs the jury, 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 com- 
 mencement of this suit; and so far as these premises are con- 
 cerned, the statute of limitation, set up in this case, cannot avail 
 
 the defendant. 
 
 [See Part I., Sec. 18.] 
 
 What Constitutes Possession. — The court instructs the jury, that 
 it is not necessary that land should be enclosed with a fence, or 
 that a honse should be erected upon, or tliat it should be re- 
 duced to cultivation, to constitute possession of it. Such im- 
 provements or acts of dominion over the land as will indicate, to 
 persons residing in the immediate neighborhood, who has the 
 exclusive control and manao-ement of the land, will l)e sufficient 
 to constitute possession. 
 
 That where land is appropriated to such uses as it is naturally 
 fitted for, and the manner in which it is used, by the persons 
 claiming title, is such as to notify the public that such person 
 has asserted dominion over it, this will constitute possession. 
 Ilubhard vs. Kiddo, 87 III., 578.
 
 128 INSTRUCTIONS 
 
 Possession of Woortland. — Tlie jury are instructed, that the rule 
 of law is, that when the land in controversy is a timber lot, and 
 it is exclusively controlled and used to supply a farm in the 
 neighborhood with fuel, or with posts and rails, this will consti- 
 tute possession, although the land does not join the farm, and is 
 not enclosed. 
 
 The jury 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 
 intention 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 — l)y 
 inclosure, by cultivation, by the erection of buildings, or other 
 imj^rovements, or in any mode that clearly indicates an exclusive 
 approjiriation of the property by the person claiming to hold it. 
 Truesdale vs. Ford, 37 111., 210. 
 
 Enclosure by Natural Objects. — If the jury believe, from the evi- 
 dence, that a slough on the east side of the premises in question 
 served substantially for the purpose of a fence, and, in connec- 
 tion with other fences, made aii enclosure of said premises, the 
 slough should be considered a fence, and the field an enclosed 
 field, for the purpose of this trial. Brumagim vs. Bradshaw, 
 39 Cal., 24. 
 
 The court instructs the jmy, that a person may take and hold 
 possession of property by inclosing the same, and for that pur- 
 pose it is not necessary that a fence should surround every por- 
 tion of the land. The boundaries of a portion thereof may be 
 protected by a fence, and the remainder defined and protected 
 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. 
 
 Possession Not Under Color of Title. — The court instructs the jnry, 
 that where a person claims jiossession of real estate without a 
 deed or instrument in writing calling for boundaries, his posses- 
 sion will not extend beyond what he has enclosed or actually
 
 IN CIVIL ACTIONS. 129 
 
 occupies. Ege vs. Medlar^ 82 Peiin. St., 8G ; Peterson vs 
 McCullough, 50 Iiid., 35; III (J. Rd. Co. vs. Lid. cij III. C. Ry. 
 Co., 85 111., 211. 
 
 The jury are instructed, that when a person has neither title 
 or color of title to an enclosed tract of land, the fact that he, 
 during several years, cut fire-wood, and made rails from the tim- 
 ber 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 ex- 
 clusive and under claim of title. Austin vs. Rust, 73 111., 491; 
 Sepulveda vs. Sepulveda, 39 Cal., 13. 
 
 Though the jury may believe, from the evidence, that the 
 defendant went upon the land in question in the sjDring of, etc., 
 for the purpose of taking possession of the whole tract, and 
 made 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 confined to the 
 quantity of ground actually taken possession of by the de- 
 fendant. 
 
 Possession According to Boundaries in Title Papers. — The court in- 
 structs the jury, that where a party has title, or color of title, to 
 woodland, and uses the land for the purpose of obtaining wood 
 for fuel or fencing, for a farm in the neighborhood, under a 
 claim of ownership, this will constitute a possession; 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. 
 Wislson vs. Williams, 52 Miss., 487; Scott vs. Delaneij, 87 111., 
 146; Barger vs. Ilohhs, 67 111., 592; Fitgate vs. Fierce, 49 
 Mo., 441. 
 
 If the jury believe, from the evidence, that some time on or 
 abont, etc., the defendant went on to a portion of the land in 
 controversy, 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
 
 130 INSTEUCTIOiSrS 
 
 sucli breaking and j)ossessiou would extend to all the land em- 
 braced in his deed. Blanchard vs. Pratt, 37 111., 243. 
 
 The jury are instructed, that a party who enters into the pos- 
 session 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 wdiole, 
 is construed as a possession of the entire tract, which the instru- 
 ment or paper purports to convey. 
 
 Notice by Possession. — The jui-y are instructed, that possession 
 under an unrecorded deed, to be iiotice to subsequent hona fide 
 purchasers, must be open, visible, and exclusive; and must be 
 such as to apprise the community that the occupant has appro- 
 priated the property to his own exclusive use. 
 
 That where a person is in the actual, open, and notorious pos- 
 session of land, claiming to own the same, this would afford 
 notice to the world of all his rights and equities in the same. 
 Sti'onrj vs. Shea, S3 111., 575 ; Franklin vs. Newsome, 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 re- 
 cording of his deed. ^Yalden vs. Gridley, 36 111., 523; Sjpitler 
 vs. Scofield, -13 la., 571. 
 
 ESTOPPEL. 
 
 General Rule. — The court instructs the jury, that as a general 
 rule, a i^arty will be estopped from denying his own acts and 
 admissions, which were expressly designed to influence the con- 
 duct of another, and which did so influence it, and when sucli 
 denial w^ill operate to the injnry of the person so acting. 1 
 Greenlf. on Ev., § 207; Klnnear vs. Mackey, 85 111., 96; Knox 
 vs. Clifford, 38 Wis., 651. 
 
 The court further instructs the jury, that when a person, by 
 his words or condu(;t, voluntarily causes another to believe in the 
 existence of a certain state of things, and thereby induces him
 
 IN CIVIL ACTIONS. 131 
 
 to act on that belief so as to change his previous condition, 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. Browyi, G7 111., 435. 
 
 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 matter of no im- 
 portance whether such representations are made in direct lan- 
 guage to the plaintiff himself, or whether they may be implied 
 from the conduct of the party sought Jo be charged; provided, 
 such conduct was intended to influence the actions of the other, 
 and did so influence it, to the latter's prejudice. 
 [See Principal and Agent.] 
 
 Intention not Essential. — The jury are instructed, that to consti- 
 tute an estoppel, it is not necessary that the party should design 
 to mislead; it is enough if the act or declaration was calculated 
 to, and did, in fact, mislead another to his injury, while acting 
 in good faith and with reasonable diligence. Blair vs. Wail, 
 69N. Y., 113. 
 
 Knowingly Permitting Another to Deal with Property as Oi^Tier. — That 
 if the true owner of pi'operty 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 prop- 
 erty. Colwell vs. Browe?\ 75 111., 516; Carroll vs. Turner, 51 
 Ga., 177. 
 
 The jury are instructed, that whenever the circumstances are 
 such as to show that the true owner of property knows that 
 another claims to own his property, and is selling or incumber- 
 ing 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 up- 
 on the innocent party, and he will be estopped from afterwards 
 setting up his title to defeat such innocent party. Sehright vs. 
 Moore,^^ Mich., 02; Sweeiuj vs. Mallory, G2 Mo., 185. 
 
 In this case, although the jury may believe, from the evidence, 
 that plaintiff was, in fact, the owner of the property in question, 
 yet, if the jury further believe, from the evidence, that he vol-
 
 132 INSTRUCTIONS 
 
 iintarilj and knowingly permitted and allowed A. E. to have the 
 possession of the property, and to exercise such acts of owner- 
 ship 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 the 
 jury further believe, froui the evidence, that the defendant, 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 prop- 
 erty on the ground that the said A. E. was not such owner. 
 
 If the jury believe, from the evidence, that before the making 
 of the mortgage in question, the defendant represented to the 
 plaintiff that A. B., the 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. 
 
 Representations hy 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 supposing and believing that 
 a certain state of facts exist, and such persons do deal with him, 
 relying on that inference and belief, the person so conducting 
 himself will not afterwards be permitted to deny that such state 
 of facts did exist, to the prejudice of persons acting upon such 
 belief. 
 
 That if a married woman is in the possession of property, 
 claiming to own and control the same, and, on her declaration 
 of ownership, employs a party to make improvements on the 
 same, under the belief that it is her separate property, 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, 
 [See "Married Women."] 
 
 Representation Must Be Acted On. — That before a party can be 
 estopped from denying the truth of any statement or admission 
 formerly made by him, the jury must believe, from the evidence,
 
 IN CIVIL ACTIONS. 166 
 
 that such statements or admissions liave induced tlic other part v 
 to act differently from what he otherwise woukl liave done, had 
 not such statements or admissions been made, and that to per- 
 mit such denial would now prejudice the rights of such party 
 to his injury. 1 Greenlf. on Ev., § 209. 
 
 Must Be a Fraiiduient Purpose or Result. — The jury are instructed 
 that, to conclude a jKirty 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 prodirce a fraudulent result; 
 there must be a change of conduct induced by the acts of the 
 party estopj^ed, to the injury of another, in order to prevent 
 him from showing the truth. 
 
 The doctrine of estoppel is based upon a fraudulent purpose 
 and a fraudulent result, and if the element of fraud is wantina" 
 there is no estoppel. Chandler vs. White, 84 111., 435. 
 
 That the doctrine of equitable estoppels is based upon a fraud- 
 ulent purpose and a fraudulent result; if, therefore, the element 
 of fraud is wanting, there is no estoppel; if both parties were 
 equally cognizant of all the facts and the declarations, or silence 
 of one party produced no change in the conduct of the other, 
 then there is no estoppel. Dorlarque vs. Cress, 71 111., 380. 
 
 Injury Must Be Shown. — That a person is under no legal obli- 
 gation to tell the t]-uth, at all times, regarding his own business 
 or property, and although the jury may believe, from the evi- 
 dence, that the i)laintiff told the defendant at one time (that tJie 
 said horse helonged to A. B.), still, if the jury believe, from all 
 the evidence in the case, that that statement was untrue, or con- 
 trary to the fact, then the plaintiff wnll 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 in- 
 jured, or in some manner prejudiced, by permitting the truth to 
 prevail. 
 
 [See Principal and Agent and Partnership.]
 
 134: INSTRUCTIONS 
 
 FACTORS OR COMMISSION MEN. 
 
 Commission Men Are Agents. — The jury are instructed, tliat com- 
 mission merchants, wiio 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. 
 
 Good Faith Required. — The jury are instructed, that the law 
 requires a factor or agent to exercise the utmost good faith 
 towards his j)rincipal ; and he has no right to realize a profit out 
 of the property or fund of his principal, intrusted to his care, 
 by any concealed management of such property, or by any vio- 
 lations of his instructions ; and any such profit that may arise in the 
 management of his principal's property belongs to the principal. 
 
 The jury are further instructed, that an agent must not, in 
 the management of his principal's property, place himself in a 
 position 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 ad- 
 vantages gained in the transaction belong to the principal. 
 
 Degree of Care Reqiiii-ed, — The jury are instructed, that the law 
 holds a consignee, in the conduct of the business of the con- 
 signor, to the same degree of care and diligence which a pru- 
 dent man would exercise in the management of his own busi- 
 ness. Story on Cont., § 301 ; Pliillips vs. Moir, 60 111., 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 wliich is ordinarily possessed and used by persons engaged 
 in the same business. Cotton vs. Hiller, 52 Miss., 7. 
 
 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 responsibility of persons to whom he sells
 
 IN CIVIL ACTIONS. 135 
 
 in tlie ordinarv course of l)usiness, and in a(;cordancc willi tlio 
 usages of the market where the sale takes i)lace, inust nevoitheless 
 use all rcasonahle efforts, and resort to all rcasonal)ly available 
 sources of information to it-arn the pecuniai-y 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. 
 ^¥aller, 75 111., 4(54. 
 
 The jury are instructed, as a matter of law, that if there be a 
 custom or usage of long standing, not unlawful, and generally 
 known at the place to which property is consigned for sale, con- 
 trolling the time within which payments may be made upon 
 what are known as cash sales, then the consignor will be l)ound 
 by the custom ov usage, whether he in fact knows of the usage 
 or not. 
 
 If the jury ])elievc, 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, un- 
 less the jury 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)^ that a sale for cash means a credit until the next day, 
 and that the defendant sold the grain in question with reference 
 to such custom. Story on Cont., § 354; Dcshler vs. Beers, 32 
 111., 368. 
 
 If the jury 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 tliat the defcMidant was accustomed to ship 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 according 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 sut-h rules and usages or not is immatei-ial, unless it be 
 shown, by a preponderance of the evidence, that tliei'e Avas some 
 special contract between the parties to the contrary.
 
 ISG INSTEUCTIONS 
 
 If the jury 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 commission 
 men, doing business on tlie board of trade, in {Chicago), and that 
 by tlie long established, uniform, and general 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 the jury further believe, 
 from the evidence, that it was in accordance with the same usage 
 or custom for the consignees to use such certificates in making 
 sales of grain, in the way of their general business, without re- 
 gard to the particular grain upon which the certificates were 
 issued, then the plaintiffs would be justified in so using the re- 
 ceipts received by them upon 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 defendant, nor of a sale of his grain. 
 
 if the jury believe, from the evidence in this case, that at the 
 time covering the transactions in question, it was the established, 
 general, and uniform usage and custom for commission men do- 
 ing 1)usiness on the board of trade, in {Chicago), to use and trans- 
 fer the receipts in their hands, for grain deposited in tlie eleva- 
 tors in that city, whenever a sale was made l)y them, without 
 regard to the particular person upon whose shipments such re- 
 ceipts were issued, then 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. 
 
 Must Conform to Rules and Usages. — The court instructs the jury, 
 that when a principal 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 exer- 
 cised 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
 
 I N C I V I L A C T I O N 3 . 107 
 
 rules and usages existing in that market, if any such arc 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. Iloioe vs. 
 Sutherland, 30 la., 484. 
 
 Marg:iiis. — If the jury believe, from the evidence, that before 
 and at the time of the transactions in question, the defendants 
 were commission men, doing business on the board of trade in 
 {Chicago), and that some time about, etc., the parties entered into 
 a contract, whereby it was agreed that the defendants should 
 purchase grain in the {Chicago) market for the plaintiff, and hold 
 the same until ordered by him to sell; and that it w-as a part of 
 the same agreement that the plaintiff should place in the hands 
 of the defendants a margin, or sum of money, equal to {five) cents 
 per bushel of the grain so to 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 additional nuirgins, as they should from time 
 to time demand; and if the jury further believe, from the evi- 
 dence, that, pursuant to that contract, the defendants did purchase 
 the grain in question for the plaintiif, and that the plaintiff did 
 then place in the hands of said defendants a margin of {five) 
 cents per bushel of said purchase, and that after that the price 
 of said grain did fall in said nuirket, then it became the duty of 
 the plaintiff, from time to time, upon reasonable notice, to ad- 
 vance to the defendants additional margins, as the same should 
 be demanded 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. 
 
 If the jurv believe, from the evidence, that the parties entered 
 into the contract su]>posed, and stated in the last preceding 
 instruction, and that the defendants bought the grain, as therein 
 supposed; then, if the jury further believe, from the evidence, 
 that the market price of the corn afterwards fell, in said mar- 
 ket; and further, that the defendants notified the plaintiff of that 
 fact, and demanded additional margins, and that the plaintiff 
 did not, within a reasonable time after such notice and demand, 
 advance the maro-ins so demanded, then the defendants had a
 
 138 INSTEUCTIONS 
 
 riii'ht to sell said corn in their discretion, being responsible only 
 for the exercise of good faith in that behalf. Corhctt vs. Under- 
 wood, S3 111., 324; Moeller vs. McLagan, 60 111., 317. 
 
 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 be- 
 tween the parties waiving such lien. Schifj-er vs. Feagi)i, 51 
 Ala., 335; Tison et al. vs. Howard, 57 Ga., -ilO. 
 
 Right to Sell Witliout Permission. — The jury are instructed, that 
 a commission merchant, wdio has received consignments of grain, 
 with orders to hold the same, has a lien thereon for any and all 
 advances made and liabilities incurred by him on such grain ; 
 and when he has made advances u23on 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 reasonable grounds to believe that such gi-ain 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 thereof as is necessary to protect himself 
 from loss, without the orders of the consignor, and even con- 
 trary thereto, unless there be an express agreement that this 
 shall not be done. Howard vs. Smith, 56 Mo., 314; WJiite vs. 
 Sinith, 54 E". Y., 522; Weed vs. Adams, 87 Conn., 378. 
 
 The jury are instructed, that when a commission man makes 
 advances, or incurs liabilities, in the discharge of his duties, 
 upon a consignment of goods, he may sell the goods, or such 
 part thereof as shall be necessary 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 are proved, 
 and reimbui'se himself for all such advances, liabilities and 
 charges; provided, the consignor fails or neglects to reimburse
 
 IN CIVIL ACTIONS. 
 
 139 
 
 1 <i 
 
 the commission man for sncli advances and liabilities witliii 
 reasonal.lc time after l)eiiig notilied so to do. Story on Cont., 
 357. 
 
 When May not Sell. — The jury are instructed, that an agent or 
 factor, holding goods for his principal, has no right, without the 
 authority of the principal, to sell such goods, except it he to re- 
 ind)urse himself for avtiiul advances made or liabilities incurred, 
 \vhen he has no funds in his hands belonging to his principal 
 sutHcient to reimburse himself for such advances and liabilities, 
 and when the principal fails or refuses to provide funds for such 
 reimbursement within a reasonable 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, belong- 
 ing to his principal, sufficient to reimburse himself for such ad- 
 vances and liabilities, he will render himself liable for all loss 
 to the principal occasioned by such sale. Story on Cont., § 357. 
 
 If the jury believe, from the evidence, that the defendant was 
 holding 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 plain- 
 tiff should keep in the hands of the defendant a sum of money, 
 
 known as a margin, equal to at least then the defendant 
 
 would have no riMit to sell the corn, in violation of the plain- 
 tiff's directions {or without orders from, him), on the ground 
 that the margin was exhausted, without first notifying the plain- 
 tiff that it was so exhausted, and giving him a reasonable time 
 within which to put up the margin so agreed upon. 
 
 Selling Without Orders — Damage Must be Sliomi. — Though the 
 jury may find that the defendants were not authorized to sell 
 the grain in question at the time they did sell it, still, before the 
 plaintiff would be entitled to recover on that account, it must 
 appear, by a preponderance of evidence, that he has suffoi-ed 
 some damage thereby, and the jury can only allow for that vio- 
 lation of duty, if it be a violation, such an amount of damages 
 as the jury believe, from the evidence, the plaintiff has sustained 
 as the direct consequences thei*eof.
 
 liO INSTRUCTIONS 
 
 Account Stated. — If the jury believe, from the evidence, that 
 the plaintiffs were commission men, doing business in Chicago, 
 and, in the way of their business, were from time to time re- 
 ceiving grain, sent to them from the defendant, to be sold for 
 him by them, and were also, from time to time, making payments 
 to defendant on account of such sales, or advancing money to 
 him 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 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 admit- 
 ting 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 con- 
 sented to them, 
 
 [See further, Account Stated, also Custom and Usage.} 
 
 FORCIBLE ENTRY AND DETAINER. 
 
 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. 
 
 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 Feb., 419. 
 
 The jury are instructed, that the law requires a person who 
 claims title and the right to the possession of premises in the 
 actual, jDcaceable possession of another, to resort to his legal 
 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 the jury may believe, from the evidence, that 
 the defendant was the legal owner of the premises in question, 
 and was lawfully entitled to the possession thereof, still, if the
 
 IN CIVIL ACTIONS. 1 H 
 
 jury furtlier believe, from the evidence, tliat the phtiiitiff was in 
 the actnal, exchisive and peaceable possession ot" the premises, 
 the defendant would have no right to forcibly enter and expel 
 the plaintiff therefrom. Cooley on Torts, 323; Dihourtk vs. 
 Fee, 52 Mo., 130; Iluftalin vs. Misner, 70 III, 205. 
 
 The jury are instructed, as a matter of law, that in this state 
 the owner in fee of lands is not permitted to enter npon the 
 possession of the same while they are in the acjtual and peace- 
 able 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. 
 
 Entry by Force not Necessary. — The court instructs the juiy, that 
 it is not necessary, in order to constitute a forcible entry, that 
 actual force or violence should be used ; any entry upon the pos- 
 session of another, without his consent and against his will, is a 
 forcible entry, within the meaning of the law. 
 
 If the jury believe, from the evidence, that the plaintiff was 
 in the actual and peaceable possession of the premises in ques- 
 tion, on, etc., and that on that day the defendant intruded into 
 and took possession of said premises, against the will and with- 
 out the consent of the plaintiff; and if they further believe, from 
 the evidence, that the plaintiff, before the commencement of 
 this suit, made a written demand upon the defendant to surren- 
 der the possession of said premises {or according to the require- 
 ments of the statute), and that the defendant refused to comply 
 with such demand, then the jury will find a verdict for the 
 plaintiff. 
 
 If the jury 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 possession; and if 
 the jury further believe, from the evidence, that before the 
 commencement of this suit, tlie plaintiff' made a written demand 
 upon the defendant for the possession of said premises {or fol- 
 lowing the reqmrements of the statute), fhcn the jury sliould 
 find a verdict for the plaintiff. Orqif vs. Ballliiger^ 18 III., 
 2Q0\ McCartney vs. Auer, 50 Mo., 3D5.
 
 142 INSTRUCTIONS 
 
 The Real Question in Issne. — 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 ma- 
 terial questions for the jury to determine by the evidence, are 
 whether, in fact, at the time in question, the plaintiif 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 loritten demand for such possession topon the defend- 
 ant before the commencement of this suit), then the jury should 
 find the defendant guilty. Allen vs. Tohias, 77 III, 169 ; Jones 
 vs. Shay, 50 Cal., 508. " 
 
 If the jury believe, from the evidence, that 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 him- 
 self or his agent, and that while the plaintiff was so in posses- 
 sion, the defendant intruded himself into such possession with- 
 out the consent of the plaintiff, such intrusion would l)e unlaw- 
 ful, and will render the defendant liable in this action ; provided, 
 the jury further believe, from the evidence, that {a written 
 demand was made upon him for the possession of said premi- 
 ses) before the commencement of this suit, and that he refused 
 to surrender such possession. 
 
 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 premises 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 author- 
 ize the defendant to enter upon said premises and take the 
 possession thereof without the consent 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 ver- 
 dict {provided, the evidence shows that the plaintiff caused a 
 written demand for such possession to he made on the defend- 
 ant before commencing this suit, and that the defendant re- 
 fused to surrender such possession).
 
 IN CIVIL ACTIONS. 143 
 
 If the jury believe, from the evidence, tliut jjrior and up to 
 
 about the day of, etc., the said plaintiff wa^ in the a<,-tual 
 
 peaceable possession of said premises by one A. B., his tenant, 
 and that at or about that time the said tenant and the defendant, 
 for the purpose of depriving the plaintiff of such possession, en- 
 tered into a collusive agreement or arrangement, by which the 
 said A. B. was to move out of said premises, and the said de- 
 fendant was to immediately move in, and that this collusive 
 arrangement was carried out, and the defendant thereby ac- 
 quired the possession of said premises, such possession would be 
 unlawful, and render the defendant liable to be removed there- 
 from in an action of forcible entry and detainer (provided, a 
 written demand was made by the plaintiff upon the defendant 
 for such possession before commencing the suit, and that he re- 
 fused to surrender such possession). 
 
 What 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 enclosed 
 with a fence. It is enough if the party is doing su(;h acts 
 thereon as indicate in an open, pul)lic, visible manner, that he is 
 exercising exclusive control over the land under a claim of right 
 to such exclusive possession. 
 
 The court instructs the jury, 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 — jirovided, such herding is open and exclusive — 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 LanrUngham, 46 Cal., (501 ; Bradley vs. West, 
 60 Mo., 59; Pensoneaii, vs. Bertke, 82 III., 161. 
 
 Possession Must be Actual and Real. — That Avhen an actual posses- 
 sion is relied upon, in this form of action, it must be open, pub- 
 lic and exclusive, or it will not be sutHcient; and in this case, if
 
 144 INSTRUCTIONS 
 
 the jury believe, from the evidence, that the acts which are re- 
 lied upon by the plaintiff to indicate possession, are of such a 
 character that they may as well indicate acts of trespass as an 
 assertion of ownership or right to possession, then they are nut 
 sufficient to sustain this action. 
 
 If the jury believe, from the evidence, that at the time of the 
 alleged entry by defendant, the lands in question were unen- 
 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 in- 
 dicate such a possession as is required to maintain this action. 
 
 What Not Possession. — If the jury believe, from the evidence, 
 that the acts from which plaintiff claims to have had pcjssession 
 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 not have such a 
 possession as would sustain this action. 
 
 If the jury believe, from the evidence, that the lauds in ques- 
 tion, at the time of the alleged entry by defendant, were unen- 
 closed 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 the jury believe, from the evidence, that shortly before 
 the alleged entry upon said premises by the defendant, and 
 before any entry thereon by the plaintiff, tlie 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 the jury 
 further believe, 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
 
 IN CIVIL ACTIONS. 
 
 14; 
 
 through one of the windows, without the knowledge or consent 
 of the defendant, then a possession tlius acquired by the plain- 
 tiff is not sufficient to sustain this action. Cooley on Torts, 
 322, 323 ; Stehdein vs. JIaUtead, 42 Wis., 422. 
 
 Burden of Troof. — 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, wliile the i)laintiff 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. 
 
 FRAUD AND DECEIT. 
 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 representation in 
 such a way and under such circumstances as to induce a reasona- 
 ble man to believe that the matter stated is true, and the repre- 
 sentation is meant to be acted upon, and the person to whom 
 the representation is made, believing it to be true, acts upon the 
 faith of it, and suffers damage thereby, this is fraud sufficient 
 to sustain an action for deceit. 2 Hill, on Torts, 13S; Cooley 
 on Torts, 175. 
 
 Proof of Fraud. — The court instructs the jury, that while fraud 
 is not to be presumed without proof, yet fraud, like any other 
 fact, may be proved by proving circumstances from which the 
 inference of fraud is luitural and irresistible; and if such cir- 
 cumstances are proved, and they are of such a character as to 
 produce, in the mind of the jury, a conviction of the fact of 
 fraud, then it must be considered that fraud is proved. Cooley 
 on Torts, 475; WatJclns vs. Wallace,!^ Mich., 57; Daniel vs. 
 Baca, 2 Cal., 32G; Waddingham vs. Loker, 44 Mo., 132; 
 Strauss vs. Kranert, 56 111., 254.
 
 146 INSTRUCTIONS 
 
 That while it is true the law never presumes fraud without 
 some evidence 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 the 
 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 find for the plaintiff. 
 
 Degree of Proof Required. — That while it is true that tlie 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 rea- 
 sonable doubt. It is sufficient if the fact of fraud is established, 
 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 declaration, and that the 
 plaintiff has sustained damage thereby, they should find the 
 issues for the plaintiff. 
 
 Representations must be of the Past or Present. — The jury are 
 instructed, that before a party can annul or treat a contract as 
 void, by reason of alleged false or fraudulent representations 
 used ill procuring it to be made, it must appear, from the evi- 
 dence, that the alleged false or fraudulent representations were 
 made regarding something which had 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 future can affect a 
 contract or render it void. Every person, 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, 486; Payne vs. Smith, 20 Ga., 654; Beed vs. 
 Sidener, 32 Ind., 373; Bristol vs. Braidwood, 28 Mich., 191; 
 Tuck vs. Doioning, 76 111., 71.
 
 IN CIVIL ACTIONS. 147 
 
 Must be Desired to Injure. — The jury are instructed, that in 
 order to constitute actual fraud there must be contrivance and 
 design to injure another. Actual fraud is not to be presumed, 
 but it must be proved by the party alleging it, by a preponder- 
 ance of evidence^ and although actual fraud may be proved 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. 
 
 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 believe, from the 
 evidence, not only that the statements and representations set 
 forth in said pleas were made, but also that such statements and 
 representations were false — that they were made with intent to 
 deceive and defraud the defendant — that the defendant was in- 
 duced thereby to enter into the contract, and that he has sustained 
 damage by reason thereof. Mitchell vs. Deeds, 49 111., 410. 
 
 The court instructs the jury, that a mere fraudulent repre- 
 sentation is not of itself actionable. To entitle the plaintiff to 
 recover, he must not only show, by preponderance of evidence, 
 that the representations were made, and that they were false 
 and fraudulent, but he must also show affirmatively, by a prepon- 
 derance of evidence, that he has been injured thereby — that he 
 is in some way placed in a worse condition than he would have 
 been had the statements been true. Bartlett vs. Blaine, S3 111., 25. 
 
 Scienter Must Appear from the Evidence. — The jury are instructed, 
 that while fraud vitiates every contract, every false affirmation 
 docs not amount to fraud. To constitute fraud, a knowledge of 
 the falsity of the representation must rest with the party making 
 it, and the representation 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 upon the representation, to his injury. 
 Walker vs. Hough, 59 111., 375. 
 
 Expression of Opinion. — The jury are instructed, that a pur- 
 chaser cannot maintain an action airainst his vendor for false
 
 118 INSTRUCTIONS 
 
 statements in regard to the value of the property purchased, or 
 its good qualities, or the price he has been offered for it. 
 
 That when a party, capable of taking care of his own inter- 
 ests, makes a bad or hx-iing bargain, the law will not assist liiin, 
 unless deceit has been practiced, against which ordinary care 
 could not protect him. Noetliiig vs. Wright, 72 111., 390. 
 
 The jury are instructed, that when j)arties are negotiating- a 
 trade for property, which there is an opportunity for examining, 
 each has a right to exalt the value of his own property to the 
 highest point the other party's credulity will bear, and depre- 
 ciate the value of the other's property. Such boastful assertions, 
 or highly exaggerated descriptions, do not amount to fraudulent 
 misrepresentation or deceit. In such case, the parties are upon 
 equal ground, and their own judgments must be their guide in 
 coming to conclusions. Cooley on Torts, 483; Payne vs. Siaith^ 
 20 Ga., 654; Bristol y&. Braidwood, 28 Mich., 191; Miller ys,. 
 Craig, 36 111., 109; Reed vs. Sidener, 32 Ind., 373; Ellis vs. 
 Andrews, 56 K Y., 83. 
 
 All statements by a vendor of the value of property sold, are 
 not necessarily matters of opinion; if the vendor, knowing them 
 to be untrue, makes them with the intention of misleading the 
 purchaser, and of inducing him to forbear making inquiries as 
 to the value of the property ; and if the vendee has not equal 
 means of knowledge, and is induced by the statements of the 
 vendor to forbear making inquiries which he otherwise would 
 have made, and, relying on such statements, is misled, to his in- 
 jury, he may avoid the contract or recover damages for the in- 
 jury. Simar vs. Ganaday, 53 N. Y., 298. 
 
 Representation as to the Law. — That a representation as to what 
 the law will or will not j^ermit to be done, or a representation 
 rcgai-ding 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 him from its 
 consequences. Fish vs. Clelland, 33 111., 238; Tounsend \&. 
 Oowles, 31 Ala., 428; People vs. Supervisors, etc., 27 Cal., 655; 
 Rogers vs. Place, 29 Ind., 577; Upton vs. Trihilcoch, 91 U. S. 
 Rep., 45-49.
 
 IN CIVIL ACTIONS. 14!) 
 
 Mere Silence is not Fraud, When — That mere silence or a failure 
 to cornniiniicate facts within the seller's knowled<^e, is not sucli 
 a fraud as will avoid a contract, or render the seller liable. To 
 have that effect, there must be some concealment, as by with- 
 holding information when asked, or using 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. Kold vs. Lindley^ 89 III., 195. 
 
 Purchaser Knowing: Himself Insolvent. — The jury are instructed, 
 that although they may believe, from the evidence, that the de- 
 fendant, at the time he purchased the goods in question, was in- 
 solvent, and knew himself to be so, and did not disclose that fact 
 to the person of whom he purchased the goods, still the defend- 
 ant 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. Henderson, 31 Ohio St., 162. 
 
 Purchjise with Intent not to Pay. — The jury are instructed, as a 
 matter of law, that in order to render a purchase of property 
 fraudulent as between the parties, it is not necessary that there 
 should have been any false representations made by the pur- 
 chaser to effect his purpose. If the jury believe, from the evi- 
 dence, and from the facts and circumstances 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. Sc/iuler,4:l 111., 192. 
 
 Drawing- Check Without Funds. — The jury are instructed, that 
 where a person draws a check or order upon a pei'son in whose 
 hands he has 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 j)roperty, the owner may repudiate the 
 sale, and bring trover or replevin for the property so obtained. 
 Matlieios vs. Cowan, 59 III., 341.
 
 150 INSTRUCTIONS 
 
 Sale of Personal Property— Concealed Defects. — If the jury believe, 
 from the evidence, that the phiintiff bought the horse in ques- 
 tion from the defendant, and that the defendant shortly before, 
 and at the time of the sale, stated and represented to the plaintiff 
 that the horse was sound and true, and that the plaintiif believed 
 such statements and representations, and relied upon 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 rendered 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 defendanit will 
 be liable to the plaintiff for the damages sustained by him by 
 reason of such unsoundness, if any has been shown by the evi- 
 dence. 
 
 Contract Procured by Fraud. — If tlie jury believe, from the 
 evidence, that any untrue statements, as to the then market 
 value of {live hogs) in the {Chicago) market, were made by the 
 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 conti'act, then such contract is voidable as against the 
 defendant, and it cannot be enforced as against him. 
 
 If the jury believe, from the evidence, that the parties made 
 the contract, as alleged by the plaintiffs, still, if the jury further 
 believe, from the evitlence, that at the time of the making of the 
 contract the plaintiffs, or either of them, wilfully and know- 
 ingly, by untrue statements, deceived the defendant in regard 
 to the then market value of the property in question, as an 
 inducement to him to enter into the contract, and that the de- 
 fendant, under the circumstances, was justified in relying upon 
 the statements made to him, and did rely upon them in entering 
 into the contract, then the defendant cannot be held to the per- 
 formance of such contract, and the verdict should be for the 
 defendant. 
 
 Stating as True — When a Party has no Reason for Belief, Etc. — The 
 
 court insti'ucts the jury, that any wilful misrepresentation of a 
 material fact, made with a design to deceive another, and to in-
 
 IN CIVIL ACTIONS. 151 
 
 duc3 him to enter into a trade he would not otherwise make, 
 will enable the party who has been overreached to annul the 
 contract; and it makes no difference whether the party making 
 the misrepresentation knew it to l)e false or whether he was 
 ignorant of the facts stated; provided, 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 l)elieving it 
 to be true, and when the other party, under the circumstances 
 shown by the evidence, 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. Ktiapp, 28 Mich., 53,76; Allen vs. Hart, 72 111., 
 lO-t; Litchfield vs. Hutchinson, 117 Mass., 195. 
 
 That material representations, made by a vendor, of matters 
 assumed by him to be within his personal knowledge, are false 
 and fraudulent, in a legal sense, if made with intent to deceive 
 the vendee, and if they are untrue, and are relied upon by the 
 vendee in making the purchase, to his damage, although the 
 vendor did not know them to be untrue. Ind. P. <j& C. Rd. 
 Co. vs. Tyng, 63 K Y., 653. 
 
 Suit for Fraud— Wliat 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 prepon- 
 derance of the evidence, that the defendant intended to commit, 
 and did commit a fraud upon the plaintiff, in manner and form 
 as charged in his declaration, otherwise he cannot recover, and 
 the jury should find for the defendant. 
 
 That the plaintiff is not entitled to recover in this case unless 
 the jury believe, fi'om the evidence, that the 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 plain- 
 tiff was induced thereby to make the trade in question, and has 
 sustained damage by means thereof. Cooley on Torts, 47-1; 
 Eames vs. Morgan, 37 111., 260.
 
 152 INSTRUCTIONS 
 
 Action Not on the Contract. — The court instructs the 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 decla- 
 ration, 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. 
 
 Co-Defendant Not Guilty. — Though the jury may believe, from 
 the evidence, that the defendant, A. B., made the trade in ques- 
 tion with intent to defraud the plaintiff, still, if the jury fur- 
 ther believe, from the evidence, that the other defendants, or 
 either one of them, took no part in the trade, and had no knowl- 
 edge 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 defendants, or that he or 
 thej^ have since ratified the same. 
 
 If the jury believe, from the evidence, that the transaction 
 complained of took place l)etween the plaintiff and the defend- 
 ant, A. B., and that the other defendants had no j)art in or 
 knowledge of the transaction when it occurred, and no interest 
 therein, and have not since ratified or approved of the act, as 
 explained in these instructions, then such other defendants cannot 
 be made liable for the acts of the said A, B. 
 
 Sales — Procnre;! by Fraud, — 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 
 purchaser acquires no title to goods procured through fraudulent 
 rej)resentation. 
 
 And if a jiurchase of goods is effected by means of false and 
 fraudulent rej^resentations on the part of the purchaser, known 
 by liim to be false, and whicli are relied upon by the seller, and 
 but for which he would not have made the sale, then the seller
 
 IN CIVIL ACTIONS. 153 
 
 does not, as against tlie purcliascr, lose his title to the goods, 
 and he may l)ring tn^ver or replevin for them against the pur- 
 chaser, without iirst making a demand for them. 
 
 And in such a case, if the purchaser has given a note or notes 
 for the price of the goods, the seller may bring his suit without 
 inaking a previous tender of the notes; provided, the notes are 
 produced at the trial to be surrendered to the defendant. Cog- 
 kill vs. Boring^ 15 Cal., 213; Thurston vs. Blanchard, 22 
 Pick., 18; Nichols vs. Michael, 23 N. Y., 2G4. 
 
 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 discovering 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 dis- 
 affirms 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 vs. Pelt, 36 Mich., 213; Pear soil vs. Chapin, 44 Penn. 
 St., 9. 
 
 Sale not Void, but Yoidable. — 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 l)07ia fide purchaser from the fraudulent vendee, the seller 
 cannot reclaim the property. Mich., etc., Rd. Co. vs. Phillijps, 
 60 IlL, 190. 
 
 Contract May be Ratified, How. — The court instructs the jury, 
 that vww wlien a sale of goods is procured ])y 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.
 
 154 INSTEUCTIONS 
 
 Where a sale of goods is procured by the fraudulent repre- 
 sentations of the purchaser, the contract of sale is not absolutely 
 void, but it may be either avoided or ratified by the seller. 
 
 And in this case, if the jury believe, from the evidence, that 
 the plaintiffs, after they discovered the fraud claimed by them 
 (brought a suit against the purchaser for the price of the 
 goods sold), tliat would be a ratification of the sale, and the 
 plaintiffs would not now be permitted to claim the goods, as 
 against the creditors of the purchaser, who had had an execution 
 levied upon them 
 
 Where a party 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; BahcocJc vs. Case, 61 Penn. St., 427; Jewett vs. 
 Petit, 4 Mich., 508; Coghill vs. Boring, 15 Cal., 213. 
 
 What is a Ratification. — 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 affecting his interest, 
 takes any steps to enforce the payment of the j)i'ice agreed 
 upon, or puts it out of his power to restore the other party, as 
 nearly as possible, to the same position he was in before the 
 sale, he will be held to have elected to affirm the sale. 
 
 [Sec Ratification.] 
 
 Innocent Purcliaser from Frandulent Vendee. — The court instructs 
 the jury, that when a j)erson who has i3urchased goods and obtained 
 possession of them by false and fraudulent representations, sells 
 them to an innocent purchaser for value before they are 
 reclaimed by the vendor, such innocent purchaser will acquire 
 a valid title to the goods. Cochran vs. Stevjart, 21 Minn., 435; 
 Ohio, etc., Rd. Co. vs. Kerr, 49 111., 458; 2 Hill, on Torts, 143.
 
 IN CIVIL ACTIONS. 155 
 
 That wlicn a party sells goods and delivers them to the pur- 
 chaser under circumstances which would authorize him to rescind 
 the sale as against the purchaser, yet if before the sale is re- 
 scinded, the purchaser sell them or pledge them as security for 
 an advance of money, to an innocent j)arty, without notice of the 
 fraud, such innocent party will hold the goods as against the 
 original owner. 
 
 Purchaser -witliout Notice, Etc. — The jury are further instructed, 
 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 i)laintiff, or 
 that defendant received them from M. without any valuable 
 consideration; pi-ovided, the jury believe, from the evidence, 
 that M. purchased the goods from the plaintiff and afterwards 
 transferred them to the defendant. 
 
 The court instructs the jury, that where personal 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 the title would vest in the purchaser; but when a 
 purchaser acquires possession of property before payment, by 
 fraudulent means, and sells it to a hona fide purchaser, witliout 
 notice, for a valuable consideration, before the first sale is avoided 
 or the property reclaimed, then the hona fide purchaser will 
 hold the 2:)roperty as against the original owner. 
 
 Transferred in Payment of Debt. — That where a person purchases 
 and o])tains the possession of goods by fraudulent represent- 
 ations, and then sells and delivers them to his creditor, in pay- 
 ment of a preexisting debt, and the creditor accejits them, hona 
 fide, and without any notice of the fraud of his vendor, such 
 creditor is a purchaser for a valuable consideration, and in hiw 
 will be protected as such against any claim of the origiiuil 
 owner, to the same extent as if he had paid a new consideration 
 for the goods, at the time he purchased them.
 
 156 INSTRUCTIONS 
 
 The jury are further instructed, that if they believe, from 
 the evidence, that M. purchased the goods from the phiintiff, on 
 credit, by means of the alleged fraud, and that the defendant, 
 in good faith, received the goods from M. in payment or part 
 payment of a preexisting debt, then, to entitle the plaintiff to 
 a verdict for the goods as against the defendant, the jury must 
 further 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 the jury believe, from the evidence, that the defendant 
 bought the goods in controversy from M. in good faith, in pay- 
 ment, 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, the jury should find for the defendant, even 
 though the jury should further find, from the evidence, that M. 
 had obtained the goods from the plaintiff by means of false and 
 fraudulent representations, as alleged. Butters vs. Haugh- 
 wout, 42 111., 18. {On this point the decisions in different 
 states are not uniform.) 
 
 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 instruc- 
 tions, he will have the same right, as against an attaching or 
 execution creditor of the purchaser. Schweizer vs. Tracy, 76 
 111., 345. 
 
 Purchaser Must Exercise Reasonable Caution, — A hona fide pur- 
 chaser from the fraudulent vendee of personal property, before 
 the defrauded vendor has avoided his contract of sale, will get 
 a good title to the property. 
 
 The jury are instructed, that the law imposes upon one pur- 
 chasing 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
 
 IN CIVIL ACTIONS, 157 
 
 exercise of such caution and diligence he wouhl prohably have 
 discovered. Cochran vs. Stewart, ''ll Minn., 435. 
 
 The jury are instructed, that every false affirmation d(jes not 
 amount to a fraud. If, by an ordinary degree of caution, the 
 party complaining could have ascertained the falsity of the rep- 
 resentations complained of, then such party is not entitled to a 
 verdict; and in this case, to entitle the plaintiff to a verdict, the 
 jury must believe, from the evidence, not only that the repre- 
 sentations 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 de- 
 termining this question, the jury should consider all the circum- 
 stances under which the alleged representations appear, fi-om the 
 evidence, to have been made, and whether, under the circumstances, 
 the representations were such as a person of common and ordinary 
 prudence would or should have relied upon or such as would 
 l)e likely to mislead such a person. Eames vs. Morgan, 37 
 111., 260. 
 
 Only Boiiiid to Exercise Reasonable Caution. — The jury are in- 
 structed, that althougli a party to a contract is bound to exercise 
 reasonable care and caution to prevent being defrauded, .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 caculated to mis- 
 lead a person acting with common prudence and reasonable 
 discretion, and such person is thereby induced to enter into a con- 
 tract, or to part with property 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 repre- 
 sentations.
 
 158 INSTRUCTIONS 
 
 FRAUD AS AGAINST CREDITORS. 
 
 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 facie, or presumptive evidence of a fraudulent 
 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 explana- 
 tion. In other states the matter is regulated by statute. Bump on Fraud. 
 Conv., 60, and the cases there cited. 
 
 Sale with Intent to Defraud Creditoi-s. — The jury are instructed, 
 that every sale or conveyance of property, made by the parties 
 with intent to hinder, delay or defraud creditors in the collection 
 of their debts, is fraudulent and void as to such creditors, whether 
 such sale or assignment is made with or without a valuable con- 
 sideration therefor. 
 
 Fraudulent, Though for a Good Consideration, Wlien.-^— That a con- 
 veyance or sale of j)roperty made with the intent, on the part of 
 the vendor to delay, hinder or defraud a particular creditor in 
 the collection of his debt, is void as against all the creditors of 
 the vendor, if the intent be known to, or participated in by 
 the vendee, although made for a good and valuable consideration. 
 Bump on Fraud. Conv., 198; Nelson vs. Smith, 28 111,, 495; 
 Chajypel vs. Clapp, 29 la., 191; Harrison vs. Jaquess, 29 Ind., 
 208; Castro vs. lilies, 22 Texas, 479; Gardinier vs. Otis, 13 
 Wis., 460. 
 
 The jury 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 ho7ia fide purchaser. 
 
 Must be a Change of Possession— Fraud per se. — The court in- 
 structs the jury, as a matter of law, that any sale or conveyance 
 of personal property, to be valid, as against the creditors of the 
 seller, must be accompanied and followed by a change in the 
 possession of such propert}^, from the seller to the purchaser, so 
 far as the situation of the parties and the character of the prop- 
 erty will reasonably admit of a change of possession.
 
 IN CIVIL ACTIONS. 159 
 
 That a change of tlie 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 public^ly known. 
 so far as the circumstances will reasonably admit of. A con- 
 tinued possession by tlie vendor of personal property, as osten- 
 sible owner, after an absolute sale, renders the sale fraudulent 
 and void, as against creditors of the vendor. Wright vs. Grover, 
 27 111., 42G; Sutto7i\s. Ballou, 46 Iowa, 517; Cater vs. Col- 
 lins, 2 Mo., App. 225. 
 
 That any sale of personal property, when it is permitted to 
 remain with the vendor, if it is of that character of property 
 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 III, 471. 
 
 Must be Outward, Visible Signs of Change of Possession. — The jury 
 are instructed, that wdien persons are doing business as a firm, 
 and in the way of their business, have in their possession a stock 
 of goods in store, and while they are so doing business, they con- 
 tract 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 j)ossession of the goods, and of the out- 
 ward and visible signs of ownership, as would indicate to the 
 public, and to those dealing with the stock, that such sale or 
 transfer had been made. 
 
 If the jury believe, from the evidence, that some time about 
 
 the mouth of J. and B. commenced to do business as 
 
 partners, 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 Iv. upon the note introduced in evidence, 
 and that afterwards J. sold out all his interest in the stock of 
 goods to his partner, such a sale would, in law, be fraudulent 
 and void as against K., unless the jury believe, from the evidence, 
 that K, had actual notice of the sale, or unless the sale was ac- 
 companied and followed by all such changes in the possession of
 
 ICO INSTRUCTIONS 
 
 the stock of goods, and in the manner of doing business in con- 
 nection therewith, as would, so far as the circumstances w^ould 
 reasonably admit of, notify the public and persons dealing with 
 the firm, and with the stock of goods, that such sale had been 
 made. 
 
 The jury are instructed, as a matter of law, that any sale or 
 assignment 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 the parties 
 will admit of it, in order to constitute a change of possession, 
 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 dealing with the goods. 
 
 If the jury believe, from the evidence, that before and up to 
 the time of the alleged sale from A. B. to the plaintiff, 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 charge of tlie 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 the jury 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 possession of 
 A. B., could lawfully be taken on an attachment writ, or execu- 
 tion, issued in favor of the said Iv., and against the said A. B. 
 
 That when a person engaged in business as a retail merchant, 
 sells out his business and entire stock in trade to another, in 
 order to render the sale valid, as against the creditors of the 
 seller, it is necessary that there be an actual change of the pos- 
 session of the property sold, from the former owner to the pur- 
 chaser, attended by such outward and visible signs of a change 
 of possession as could be seen and known to the public, or to 
 persons dealing with the goods. 
 
 The court instructs the jury, 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
 
 IN CIVIL ACTIONS. 101 
 
 creditors of the vendor, there must be a delivery of tlic property 
 so sold; and sncdi delivery must be an actual manual delivery, 
 when the pro[)erty is susceptible of it; and when the property is 
 so heavy or bulky that manual delivery is impracticable, theii 
 there must be some outward public act done by way of deliver- 
 ing the 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 under the circumstances of the case. 
 
 Priority of Possession Under Execution. — If the jury believe, from 
 the evidence, that at the time of the alleged purchase of the 
 property, there was no act done by the seller towards turning 
 over the property to the plaintiff, and no act done by the plain- 
 tiff towards taking possession of the property, then, as against 
 the execution creditors of the seller, such a sale would be fraud- 
 ulent and void in law, and the execution introduced in evidence, 
 if received by the officer {or levied upon the property) before 
 any acts were done towards changing the possession of it, would 
 hold the property as against the plaintiff. 
 
 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 sucJi, 
 has ceased. 
 
 In this case, although the jury may believe, from the evidence, 
 that the plaintiff and the said A. B., before the execution, intro- 
 duced in evidence in this case, was issued and received by the 
 officer {or levied upon the property), went thi'ough with the 
 forms of a sale from the latter to the former; still, if the jury 
 further believe, from tlie 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 part of the seller, known to and par- 
 ticipated in by the plaintiff, and, in such case, the burden of 
 
 11
 
 1G2 INSTKUCTIONS 
 
 proof is on tlio plaintiff to show the good faith of the transaction, 
 by a preponderance of evidence. 
 
 The jury 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 property accompany- 
 ing or following; the sale, then the law presumes that such 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 hona 
 fide and honest, and not designed as a mere trick to cover up 
 the property. 
 
 Good Faith a Question for the Jury, When. — The jury are instructed, 
 that although the law presumes every sale of pei'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 jDresumption 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 the jury, from a consideration of 
 all the evidence in the case. 
 
 And in this case, if the jury believe, from all the facts and 
 circumstances attending the sale in question, as shown by the 
 evidence, that the sale was hona fide, and for a valuable consider- 
 ation, 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. 
 [See Part I., Sees. 14 and 15.] 
 
 Possession Evidence of Ownership. — The court instructs the jury, 
 that possession of personal pro23erty vs, prima facie evidence of 
 ownership, if there are no circumstances accompanying the pos- 
 session to rebut the presumj)tion of ownership; and if the jur}' 
 believe, from the evidence, that the plaintiff had been in posses- 
 sion 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 incumbent upon the defendant to
 
 IX CIVIL ACTIONS. 1G3 
 
 sliow, by a preponderance of tcstiinony, that tlic title ^vas not in 
 the phiiiitilt", and indess he has done so, they should find for the 
 phiintiff, as to the ownership of the property. Berfjen vs. Rigyn, 
 34 111., 170. 
 
 Possession not Evidence of Ownership, Wlien. — The jury arc in- 
 structed, that although it is a general rule of law, that possession 
 of personal property \&^rima facie evidence of title in the per- 
 son in possession, still the possession may be accompanied by 
 such circumstances as to rebut such presumption; and so in this 
 <;ase, although the jury may believe, from the evidence, that the 
 defendant was in jjossession of the property when, etc., still, if 
 the jury further find, from the evidence, that such possession 
 was attended or accompanied by such circumstances as rebut the 
 presumption of ownership arising from such possession, then 
 such possession is not, of itself alone, even prima facie evidence 
 of ownership in the defendant. 
 
 Only Siicli Clian^e Required as can Reasonably be Made. — In deter- 
 mlning what it takes to constitute a delivery and change of pos- 
 session of personal property upon a sale of it, the jury should take 
 into consideration the character of the property, and the situa- 
 ti(m of the parties at the time of the sale; and in this case, if the 
 jury find, from the evidence, that the plaintiff purchased the 
 l)roperty in question in good faith, and for a valuable considera- 
 tion, before the execution, introduced in evidence, came into the 
 hands of the o^aev {or was levied upon the property), t]vAi plaintiff 
 had done everything which could reasonably be done, under the 
 circumstances, by way of taking possession of the property, un- 
 der the sale to him, then the property would not be liable to be 
 taken on the execution. Bump on Fraud. Conv., 165 ; Cartright 
 vs. Fhcenix, 7 Cal., 281; Allen vs. Smith, 10 Mass., 308; Chase 
 vs. Ralston, 30 Penn. St., 539. 
 
 That the rule of law requiring a change of possession of per- 
 sonal property u^^on 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 reasoiuibly 
 admit of, and in the case of heavy and cumbersome articles, an 
 actual delivery of any essential part thereof, with the inteiition
 
 104 INSTRUCTIOXS 
 
 of Jelivering tlie whole, is iu law equivalent to a delivery of the 
 Avhole article sold. 1 Pars, on Cout., 44:3. 
 
 The court instructs the jur}^, that although a delivery of per- 
 sonal property sold is necessary to pass tlie title thereto, as 
 against the creditors of the seller, yet such delivery need not 
 necessarily be an actual delivery; but anything which clearly 
 shows a surrender of ownership by the seller, and an assumption 
 of ownershiiD by the purcliaser, accompanied by such circum- 
 stances as would reasonably advise the world of such change of 
 ownersliij^, is all that is necessary on that j^oint. 
 
 Property in Possession of Third Person. — The court instructs the 
 jury, that where personal property is sold, which, at the time of 
 the sale, is in the actual possession or under the control of a third 
 person, no other delivery of such property is necessary, than tliat 
 the seller and purchaser, together with such third person, should 
 agree that such third person, should tliereafter keep possession 
 of the property for the purchaser, and he does so keep possession. 
 
 Symbolical 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 
 j^ledgee, and if proved, is a good delivery of the property as 
 against the creditors of the shippers. 1 Pars, on Cout., 443; 
 Jfich. Cent. Rd. Co. vs. Phillips, GO 111., 190. 
 
 Possession by Agent. — That a party may be in possession of j^er- 
 sonal property, by his agent as well as by himself, and if tlie 
 goods are sold in good faith, and for a valuable consideration, 
 and the possession is delivered to the purchaser, it is not neces- 
 sary that he should remain in the actual possession of the prop- 
 erty to guard his title; but such possession may be by an agent, 
 and such agent may be the seller of the property, if the posses- 
 sion is such as reasonably to advise the creditors of the change 
 in the title of the ]Droperty. Warner vs. Carleton, 22 111., 415, 
 
 Possession of Growing Crops. — The court 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,
 
 IN CIVIL ACTIONS. 
 
 there need not 1)C a manual delivery; and in the ease of the sahj 
 of standing crojis, the possession will 1)0 in the vendee until it i> 
 time to harvest them, and until then he is not required to take 
 manual or actual possession of them. Tlclaior \'s>. McClelland, 
 84 in., 471. 
 
 Temporary Possession of Vendee. — If the jury believe, from the 
 evidence, that the plaintiff purchased 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 ap- 
 prise the public 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 evidence of a fraudulent sale, etc.) as against 
 the creditors of the said A. B. Cunningham vs. Haimilton, 
 25 IlL, 228. 
 
 A Person Inilebted m-iy Sell his Property. — That a party, though in 
 debt, may sell his property to anyone he pleases, if for an 
 honest and fair consideration, and no lien exists to forbid 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 property. 
 
 The jury are instructed, that although a sale of a debtors 
 property 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 honafiie intention of applying the proceeds in discharge 
 of any legal lialjilit}'. Bump on Fraud. Conv., 44; Nelson vs. 
 Smith, 28 111., 495. 
 
 The jury are instructed, that a sale of property in good faith, 
 for a valuable consideration, when there is a delivery of the 
 property sold, passes the title to the purchaser, and the fact that 
 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.
 
 IGG INSTRUCTIONS 
 
 If the jury believe, from the evidence, that C. was iiiclel)ted 
 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. Warner vs. 
 Carleton, 22 111., 415. 
 
 Debtor may Transfer Property iii 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 hotia fide indebtedness to one of his creditors, a debtor 
 may exhaust the whole of his property, so as to leave nothing 
 for the other creditors, who are equally meritorious. Bump 
 on Fraud. Conv., 183; State vs. Laurie, 1 Mo. App., 371 ; Green 
 vs. Tanner, 49 Mass., 411; Kemp y&. Walker, 16 Ohio, 118; 
 Jluhhard 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 his property and apply the 
 proceeds thereof to the payment of any one or more of his 
 creditors, as he may see fit, if done in good faith, although it be 
 done with the intention of defeating his other creditors. 
 
 The jury are instructed, that a conveyance of property made 
 in good faith to pay an honest debt, is not fraudulent, though 
 the debtor be insolvent and the creditor is aware, at the 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 must be a real design on the part of the debtor to prevent 
 the application of his property, in whole or in part, to the satis- 
 faction 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 ob- 
 taining satisfaction of their equally meritorious claims. Gray 
 vs. St. John, 35 111., 222.
 
 IN CIVIL ACTIONS. 107 
 
 Sale on Credit. — The jury are further instructed, as a matter of 
 law, that hi the case of an absohite and unconditional 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 unpaid price 
 were to be used in the payment of his debts, will not alone 
 establish fraud in such sale as against his creditors. Miller et 
 al. vs. Kirhj, 74 111., 24:2. 
 
 Debtor may Prefer a Creditor. — That a debtor may prefer one 
 creditor, paying him in full, thus exhausting his whole property, 
 leaving nothing for his other creditors. lie may, also, partially 
 pay a portion of his creditors in unequal payments, and wholly 
 neglect his other creditors, and yet the law will not disturb such 
 disposition of his property, if done in good faith. 
 
 The jury 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 the jury l)elieve, 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 defendant, in payment, or in part payment, of such indebted- 
 ness, then, upon the question of the ownership of the goods, 
 the jury should find a verdict for the defendant, unless they 
 further 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. Batters vs. Ilaugh- 
 wout, 42 III, 18. 
 
 Preferring Wife as Creditor. — A husband indebted to his wife, 
 may prefer her to his other creditors, and make a valid appro- 
 priation 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; Hill vs. Boioman, 35 Mich., 191. 
 
 Purchaser must be Chargeable with Notice of Fraud. — The jury are 
 instructed, as a matter of law, that it is not sutficient, 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
 
 1G8 INSTRUCTIONS 
 
 notice of such intent on the part of the seller. Miller vs. 
 K'lrlxj, 74 111., 242; Hatch vs. Jordan, 74 TIL, 414; Preston 
 V8. Tamer, 36 la., 671; Drummond vs. Cause et al., 3D la., 
 442. 
 
 The court instructs the jury, that while our statute declares 
 every sale or assignment which is made with intent to defraud, 
 hinder or delay creditors in the collection of their debts void, 
 still such sale or assignment will not be void as against the pur- 
 chaser, unless he knew, or had good reason to suppose, that the 
 sale was made by the seller with intent to defraud his creditors, 
 or to hinder or delay them in the collection of their debts. 
 Bump on Fraud. Conv., 105; Preston vs. Turner, 39 la., 671; 
 Gentry vs. Pohlnson, 15 Mo., 260; Lipperd vs. Edwards, 39 
 Ind., 165; IBchs vs. Stone, 13 Minn., 434. 
 
 The jury are further instructed, that although they may be- 
 lieve, from the evidence, that A. B. sold the property in con- 
 troversy to the plaintiff for the purpose of hindering or delay- 
 ing his creditors, still, if the jury further believe, from the 
 evidence, that the plaintiff, at the time of the purchase, had no 
 notice or knowledge of such purpose, then the sale would not 
 be fraudulent or void, as to the plaintiff, by reason of the fraud- 
 ulent intent on the part of the said A. B. 
 
 The jury are instructed, that to impeach a sale of personal 
 property 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 fi-audulent purpose of the seller. Jones vs. Uethering- 
 ton, 45 la., 681; Zuver vs. Lyons, 40 la., 510. 
 
 Creditor not Affected by Knowledge, When. — The jury are in- 
 structed, that when a pei-son purchases goods with the knowl- 
 edge that his vendcM- intends by the sale to defraud his creditors, 
 or to hinder or 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 creditor violates no rule
 
 IN CIVIL ACTIONS. 109 
 
 of law when lie tako^; payinoiit of \ua debt, though he knows 
 that other creditors are thereby deprived of all means of obtain- 
 ing satisfaction of their own equally meritorious claims. Gmj/ 
 vs. St. John, 35 111., 222. 
 
 What is Siifncient Notice of Fraudulent Intent. — The court instructs 
 the jui-y, 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 X)arty to whom the transfer is made has 
 knowledge of facts and circumstances from which such fraud- 
 ulent intent might reasonably and naturally l)e 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. 
 
 [See Notice.] 
 
 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 contrai-y appears, from a prepon- 
 derance of the evidence; and the burden of proving fraud is 
 always on the i:)arty alleging it. 
 
 The jury are instructed, that all persons are presumed to be 
 innocent of intentional wrong until they are proved to be guilty; 
 and all pei'sons 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 JIOKTGAGE AS AGAINST JUDGMENT CREDITORS. 
 
 Note. — The validity and legal effect of chattel mortgages are mostly 
 matters of statutory regulation. The followuig instructions, relating to 
 chattel mortgages, are drawn with reference to the laws of Illinois: 
 
 Good Between the Parties Without Koeording-. — 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.
 
 170 INSTRUCTIONS 
 
 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 bindino- without beinec acknowledo-ed or recorded, 
 as provided by statute. 
 
 But to render a chattel mortgage valid as to third parties, 
 such as creditors and purchasei's, in good faith, it must be ac- 
 knowledged before the justice of the peace in the town where 
 the mortgao-or resides, and an entry of the mortgage, containing 
 a description of the property mortgaged, must be entered on the 
 justice's docket ; and the mortgage must also be filed for record in 
 the office of the recorder of deeds of the county where the mort- 
 gagor resides. 
 
 If the chattel mortgage is not acknowledged before a justice 
 of the peace of the town wdiere 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 execu- 
 tion on the property, as though no mortgage had been made. 
 Porter vs. Dement, 35 111., 478. 
 
 The jury are further instructed, that a chattel mortgage not 
 acknowledged or recorded, though obligatory and binding be- 
 tween the parties to it, is void as to creditors and purchasers in 
 good faith. Forest vs. TinkJiam, 29 111., 141. 
 
 Mortgagee Must See to Statutory Requii-ements. — 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 justice before whom 
 it was acknowledged, and to see that a correct 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 incor- 
 rectly or erroneously described on the docket, in any material 
 particular, the mortgage itself will be invalid, as against pur- 
 cliasers and creditors, so far as the misdescription extends. 
 
 It is the business of the mortgagee to see that all these requi- 
 sites to the validity of the mortgage are complied with, for 
 the omission to do so will be at his peril. 
 
 Acknowledgment and Recording, How Proved. —The court instructs 
 the jury, that the certificate of the justice of the peace, endorsed
 
 IN CIVIL ACTIOXS. 171 
 
 on the mortgage, is jprimxt facie evidence that the mortgage 
 was duly acknowledged before such justice, and entered upon 
 his docket, as reqnired by hiw. And the certificate of tlie re- 
 corder, endorsed on the mortgage, is jprima facie evidence that 
 it was duly recorded at the time therein stated. 
 
 Mortf?agee Mnst Take Possession of tlie Property, When. — The court 
 instructs the jury, that the law requires a person having a chat- 
 tel 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 taking such possession of 
 the property, then the property will be liable to be levied upon,* 
 or sold as the property of the mortgagor. Barhour vs. White, 
 37 III, 16i. 
 
 Fraudulent Mort^a^e Toid. — In determining the question, whether 
 the mortgage in this case was made in good faith, the jury 
 should take into consideration all the facts and circumstances 
 proved on the trial; and if the jury believe, from all the evi- 
 dence in the case, that the mortgage was not made in good 
 faith, or for a valuable consideration, but was made for the pur- 
 pose of covering up the property of the mortgagor, so as to keep 
 it from his creditors, then these facts would render the mortgage 
 fraudulent and void, as to third persons having claims or liens 
 on the property covered by the mortgage. 
 
 That although the jury may believe, fi'om the evidence, that 
 the mortgagor M'as indebted to the plaintiff, to the amount of the 
 debt mentioned in the mortgage, at the time the same was made, 
 still, if the jury 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 mort- 
 gage by the parties thereto for the purpose of covering the same 
 up, and with an intent to hinder, delay or defraud the creditors 
 of the said mortgagor in the collection of their debts, these facts 
 would render the said mortgage void as to such creditors, and 
 tne jury should find for the defendant.
 
 172 INSTEUCTIONS 
 
 Note for More than Amount Due. — Although the jury may believe, 
 from the evidence, that there was a good consideration for the 
 said note, to the extent of $125, 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 morto-ao-e 
 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. 
 
 Mortgage 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 whether the parties in- 
 tended any actual fraud or not. Davis vs. Hansom, IS 111., 39G. 
 
 Both Parties Must Intend the Fraud. — Although the jury may be- 
 lieve, from the evidence, that the said A. B. made the chattel 
 mortgage, with intent to defraud, hinder, or delay his creditors, 
 still, if the jury further believe, from the evidence, 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 hona fide indebtedness, then the 
 plaintiff will in no manner be affected by the fraudulent intent 
 and purpose of the said A. B. 
 
 If the jury 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 re- 
 corder's office of this county; and further, that it was so filed 
 before the execution in question came into the hands of the 
 officer {or was levied on the property), then the jury should find 
 the property in the plaintiff. 
 
 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
 
 IN CIVIL ACTION'S. 
 
 who saw the same paid or delivered. It may bo shown by the 
 proof of facts and circumstances which indicate *^ood faith and 
 a vahiable consideration. 
 
 Intent to Defraud Must Exist at Time of Etc. — To render a chattel 
 mortgage fraudulent, the intent to defraud must exist when the 
 mortgage is made. The mortgagor's subsecpient conduct in 
 dealing with tlie property, while it may be considered by the jury 
 in determining whether there was fraud in the malving of the 
 mortgage, will not itself render the mortgage void. Ilorton vs. 
 Williams, 21 Minn., 187. 
 
 Subsequent Acts will not Render Void. — If the jury believe, from 
 the evidence, that the chattel mortgage in question was originally 
 made in good faith, and to secure a honafide indebtedness, then 
 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. 
 
 Sales 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 hoiia fide indebtedness, 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 consent of the mortgagee, 
 these facts alone would not render the mortgage void as to the 
 balance of the property. 
 
 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 essential to the validity of such a 
 mortg;ige that it should show, on its face, that it was made in 
 part to secure such future advances. Bump on Fraud. Conv,, 
 229; SpeeT vs. SJdnner, 85 111., 2S2; Miller vs. Loehioood^ 32 
 X. Y., 293; Shirras vs. Craig, 7 Cranch, 34; TMey vs. Har- 
 low, 35 Cab, 302.
 
 174: INSTRUCTIONS 
 
 ' If the jury believe, from the evidence, that the note and 
 mortgage in this case, were given to secure an actual indebted- 
 ness existino; at the time, as well as to secure further advances, 
 loans or credits, contemplated by the parties at the tnne the 
 mortgage was made, then the fact that the note and mortgage were 
 made for more than was actually due at the time, does not alone 
 render them void. 
 
 The jury 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. Pihe vs. Colvin, 67 111., 227. 
 
 If the jury believe, from the evidence, that the consideration 
 of the note and mortgage in question, was, in part, a former in- 
 debtedness, due from the mortgagor to the mortgagee, and in 
 part for money loaned at the time they were given, and in part 
 to secure future advances agreed to be made by the mortgagee 
 to the mortgagor, this would not render the mortgage void, if 
 made in good faith, and not to hinder, delay or defraud creditors. 
 
 Possession by the Mortgag:ee. — If the jury believe, from the evi- 
 dence, that the mortgagee had taken possession of the property 
 in question under the mortgage, and was in possession of it at 
 the time the attachment writ was levied, then it is immaterial 
 whether the mortgage was recorded or acknowledged before the 
 justice of the peace in the town where the mortgagor lived. 
 
 If the jury 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 mort- 
 gagee 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 subject to be taken by 
 the creditors of the mortgagor, unless they first paid to the mort- 
 gagee the amount of his claim against the property. 
 
 Possession by the Mortgagor after Default. — The jury are instructed, 
 as a matter of law. that v/hen mortgaged chattels have been re-
 
 IN CIVIL ACTIONS. 175 
 
 du(;c(l to posjiossion, after default, and the title has become ahsc*- 
 lute ill the mortgagee, he may then loan the property to the 
 mortgagor, precisely as he might any of his other property, and 
 such repossession by the mortgagor would not render the mort- 
 gage, or the mortgagee's title under it, fraudulent or void as to 
 creditors. Funk vs. Staats, 24 111., 632. 
 
 HIGHWAYS. 
 
 How Created. — The court instructs the jury, that a public 
 highway nuiy be acquired by condemnation under the statute, 
 by grant from the owner — and after {tvjenty) years' use by the 
 public, a grant will be presumed — and by dedication to and 
 acceptance of the highway by the public; the acceptance of 
 the highway may be inferred from travel by the public, or from 
 repairs made thereon by the projier public authorities. Wash- 
 burn on Easements, 125 ; Gruhe vs. Nichols, 30 111., 90. 
 
 The jury 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, {tioenty) years' continuous ad- 
 verse use by the public, or dedication by the owner. And 
 if the jury believe, from the evidence, that the plaintiff has 
 proved the establishment of the road in controversy I)y either 
 one of these three methods, as explained in these instructions, 
 that is sufficient upon the question of the existence of the road. 
 
 Presumption from Laying Out and Working Highway. — 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 pub- 
 lic, and that it was I'ecognized 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. 
 
 Existence of Higliway, How Proved. — The jury are further in- 
 structed, that the plaintiff is not bound to rely on the record of 
 the condemnation proceeding alone to establish the existence of
 
 17G INSTEUCTIONS 
 
 tlie road in question; it is sufficient if the jury believe, from 
 the evidence, and under the instruction of the court, that there 
 M-as, at the time in question, a legal highway, as explained in 
 these instructions, at the point in question. 
 
 Tliat a public highway may exist, one part by condemnation 
 under the statute, anotlier by prescription, which means {tioenty) 
 years, or more, continuous adverse use, and still another part of 
 the road may exist by dedication. 
 
 Condemnation, How Proved— Actual Location must Prevail.— The jury 
 are instructed, that the plat and survey of a road made by the 
 direction of the commissioners of highways \% prima facie evi- 
 dence of the location of the road, but it is not conclusive. If 
 tlie 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 location must be proved. 
 
 Monuments Control Courses and Distances. — The jury are instructed, 
 that the rule of law is, if there is any discrepancy 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. 
 
 That the monuments and lines actually run by the surveyor 
 in surveying the road, and the staking and laying out the road 
 on the ground, must always prevail in determining the location 
 of a rojid. The notes of survey, and tht. plat returned by the sur- 
 veyor are but matters of description, which serve to assist in 
 determining the place where the road is laid, but they are not 
 conclusive. 
 
 That the actual surveying, staking, laying out and viewing 
 the line of tlie road upon the ground where it is laid constitutes 
 the location of the road ; provided, the road is actually opened 
 on that line. 
 
 If the jury 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 
 hi.^-hway commissioners, then that would be the true line, 
 although the survey and plat called for a different line. Iliner 
 vs. The People, 34 111., 29T.
 
 IN CIVIL ACTIONS. 177 
 
 Pi'ima Facie Evidence of Location. — The court instructs the jurv, 
 that the petition, report of the commissioners, the survey and 
 plat of the surveyor in locating the road, at the time the road is 
 alleged to have been laid out, are required, by law, to be filed 
 ill the office of the town clerk, and when they are so filed they 
 become a part of the public records for the use of the public. 
 And {the copies of) all such papers as have been used in evi- 
 dence in this case are iwhna facie evidence of the facts stated 
 in them respectively. Illner vs. The People, 3i 111., 297. 
 
 What is Meant by Dedication. — By dedication is meant a giving 
 and granting of a right; and before the jury can find that there 
 is a valid road by dedication, at the point in controversy, they 
 must believe, from the evidence, that the owner of the land in- 
 tended to give, and did give, to the public a right of way over 
 the land, and that the public accepted the gift. 
 
 Dedication— What Constitutes. — The jury are instructed, that to 
 constitute a dedication of land for a highway, as regards the 
 general public, the owner of the fee must give the right of way 
 to the public, and it must be accepted and appropriated to that 
 use by travel, or a recognition of it as a public highway by 
 repairs, or otherwise, by the proper public authorities. To show 
 a dedication, the acts of both the donor and the public author- 
 ities, in these respects, must concur. State vs. Tucker, 36 la., 
 485; Fisk vs. The Town of Havana, 88 III, 208. 
 
 Dedication must be Made by the Owner. — The jury are instructed, 
 that a primary condition of every valid dedication of land to 
 public use is that it should be made by the owner of the fee. 
 No one but the owner in fee can dedicate land to public use. 
 Baugan vs. Mann, 59 111., 492, 
 
 No Particular Ceremony Required. — That no particular form or 
 ceremony is necessary in the dedication of land for a public 
 highway; all that is required is that the owner shall, in some 
 manner, manifest an intention to dedicate it, and that the public 
 shall accept the dedication. Morgan vs. Railroad Co., 9G 
 U.S., 710. 12
 
 ITS I N S T li I' C T I O X S 
 
 No Specific Time Reqtiii-etl Tlie jury are instrnctcd, that no 
 
 specific length of possession hy the puhlic is necessary to cun- 
 stitute a dedication of ground as a street or highway. It is only 
 necessary that the owner shouhl manifest an intention to dedi- 
 cate it for that purpose either by writing, by dechirations, or by 
 acts, and that tlie pul)lic sliould accejjt the dedication as made. 
 City Chicago vs. Wri<j1d, <;'J 111, 318; Gentleman \^. Soule, 32 
 III, 271. 
 
 That to effect a dedication there must be an intention so to 
 do, and such intention may be manifested by acts and accom- 
 panying declarations. No particular time is necessary to con- 
 stitute a dedication ; it may take place immediately, if the owner 
 of the property intends it shall do so, and the public accepts it. 
 Hees vs. City Chicago, 38 111,, 322. 
 
 Dedication must be Accepted. — The jury are instructed, that a 
 dedication of land to public use may be made by verbal declara- 
 tions, if accompanied by such acts as are necessar}^ for that pur- 
 pose; but to make a valid dedication to the public, an 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 pub- 
 lic for a street or highway, there must not <Mdy 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. Le Van, 
 23 Minn., 513; III Ins. Co. vs. Zittlejield, 07 111., 368. 
 
 Owner Must Intend to Dedicate. — The jury are instructed, that 
 there can be no valid dedication of land to public use without 
 an intention, on the part of the owner, to so dedicate; and al- 
 though the jury may believe, from the evidence, that the land at 
 the point in (|uesli(Mi, had lieen 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 estaldish the ex- 
 istence of a highway by dedication; it nmst further appear, from 
 a preixniderance of the evidence, that the plaintiff intended to 
 dedicate it to the use of the public as a highway. 
 
 That although it is necessary, in order to sIkjw a dedication of 
 land to ])ublic use, that the owner intended thus to dedicate it,
 
 IN CIVIL ACTIONS. 
 
 179 
 
 still, this intention may be manifested by acts or words, or partly 
 by both, and if the jury, after considering all the evidence in the 
 case, believe therefrom, that before, etc., that the plaintiif in- 
 tended to, and did dedicate the land in qnestion to public use, 
 and with that intention, gave the public the right to travel 
 thereon, and to use the same as a highway, and tliat 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 dedi- 
 cation as claimed. 
 
 Dedication Binding on the Owner, and all Claiming Under Him.— 
 
 The jury are instructed, as a matter of law, that a valid dedica- 
 tion, when once made and accepted, is binding not only on the 
 person making it, but also upon all persons claiming nnder him 
 by deed or otherwise. Rees vs. City of Chicago, 38 111., 322. 
 If the jury believe, from the evidence, that A. B., while he 
 was the owner of the land at the point in question, dedicated it 
 to public use as a highway, as explained in these instructions, 
 and that the public accepted the dedication, then the portion so 
 dedicated should be deemed to be a public highway. Town of 
 Havana vs. Biggs, 58 111., -1:83, 
 
 Dedication by Sale of Lots Bonnded 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 plat of the same, marking there- 
 on 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 interrupt or take away. Bartlett vs. Bangor, 
 G7 Me., 400; Fisher et al. vs. Beard, 32 la., 346. 
 
 The court instructs the jnry, as a matter of law, that if the 
 owner of a piece of land lays it out into lots and blocks, with 
 streets and alleys, and then sells off a lot, bounding the lot by one 
 of the designated streets, then tlie purchaser of the lot will ac- 
 quire a right to have the street remain open for street purposes, 
 whether it is so mentioned in the deed or not. 
 
 Prescription— (Twenty) Tears' User. — If the jury believe, from the 
 evidence, that a public road has l)een used by the public over the 
 place in question, for {twenty) years or more, without interrup-
 
 180 INSTRUCTIONS 
 
 tioii, and that tlie owners of the land have acquiesced tlicrein, 
 during all that time, then the law ]n-csumes a grant or a dedica- 
 tion of the ground upon which the road runs, to the use of the 
 jniblic, for a common highway. State vs. Green^ 41 la., 693. 
 
 The court instructs the jury, that a peaceable, continuous and 
 uninterrupted use of a piece of ground, as a highway, by the 
 public for {twenty) years, or more, creates what is called a pre- 
 scriptive right to use the road as such; and this right continues 
 till it is clearly and unmistakably abandoned by the public. A 
 partial or transient non-user of a road, l)y reason of the travel 
 being diverted to other roads, is not sufficient to establish an 
 abandonment of such i-oad. Toiun of Leicistoion vs. Proctor, 
 27 111., 414. 
 
 Prescription— Travel Must be Confined to a Particular Route. — The 
 
 jury are instructed, that the public cannot acquire a right by 
 pi-escription ; that is, by aiiser for {twenty) years, to travel over a 
 ti'act of land genei'ally. The travel and the right of way must 
 be confined to a sjiecific line or way, that could properly 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. Fiirman, 36 la., 614. 
 
 The jury 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 
 cannot be so computed as to make up the requisite {twenty) years 
 to establish a prescri})tive right of way to any single line of road. 
 Gentleman vs. Soule, 32 111., 271. 
 
 {See Adverse Possession.] 
 
 If the jury l)elieve, from the evidence, that the pul)lic acqui- 
 esced in tlie placing of the obstruction ('()nq)lained of in tlie 
 road in question, l)y the defendant, and that tlie public accepted 
 the road spoken of by the witnesses as {"the north road") in lieu 
 of the road in question, and used the said substituted road for a 
 l^eriod of {Jive) 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. Nichols^ 36 111., 92.
 
 IN CIVIL ACTIONS. 181 
 
 INTOXICATING LIQUORS. 
 
 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 general 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: 
 
 Suit by a Wife— Statutory Provisions. — The jury are instructed, 
 that hy the law of this state, every person ^vho 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 his death ensues as a consequence of such 
 intoxication. 
 
 The statute of this state 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 
 persons who shall, by selling or giving intoxicating liquors to 
 her husband, have caused such intoxication in whole or in part. 
 
 Wliat Must be Proved. — The jury 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 defend- 
 ants, 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 
 
 other intoxicating liquor, and thereby, in whole or in part, cause 
 the intoxication of the said " M.," and that the said M., while 
 under 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 thereby damaged in her 
 means of support, then the jury should find the said defend- 
 ants, 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. Fountain vs. Draj)e7\ 49 Ind., -i-il ; Emory vs. 
 Addis, 11 111., 273 ; Woolheather vs. Risley, 38 la., 48G ; 
 Worley vs. Sjnii'geon, 48 la., 465.
 
 1 82 INSTRUCTIONS 
 
 Dcfendiints Jointly ami Severally Liahlo. — Tlie jury are fuitlier in- 
 stnictod, that in actions of this kind, it is not nc(;essary to make 
 all persons who have been iJ^uilty of selling intoxicating liquors 
 to the deceased, defendants in a suit for damages, if any, result- 
 ing 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 sus- 
 tained. 
 
 Siiincioiit if the Liquor Sold Contributed, Etc. — The jury are fur- 
 ther instructed that though they may believe, from the evidence, 
 that the deceased had li(|uor in his liouse, or about his piM'son, 
 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 the saloons of the de- 
 fendant, which contributed to his intoxication, and that his 
 death resulted as a consequence of such intoxication. Roth vs. 
 Eppy, 80 111., 283; Boyd vs. Watt, 27 Ohio St., 259; Wool- 
 heather vs. Risley, 38 la., 486, 
 
 In order to make a dram-shop keeper liable for injuries 
 occasioned by intoxication, which results from the drinking of 
 intoxicating liquors sold by him, it is not necessary that such 
 intoxication should be wholly produced by liquor sold by him; 
 it is only necessary to show that the liquor s(;ld by him con- 
 tributed or assisted in producing such intoxication. 
 
 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 
 l)elieve, from the evidence, that the defendant sold intoxicating 
 li(jUors to deceased, and that the intoxicating liquors so sold by 
 defendant contributed or assisted to produce such intoxication, 
 and that deceased died in coosequence of such intoxication. 
 
 Owner of the Premises, Etc. — The jury are instructed, that under 
 our statute, the owner of premises upon which intoxicating licpiors 
 are kept for sale, contrary to law, is not guilty of an offense if 
 he, in good faith, leased them for a lawful pur^xjse, and did not
 
 IN CIVIL ACTIO XS. 183 
 
 afterwards affirmatively assent to such unlawful use; tlie mere 
 failure to prevent, or to attempt to prevent, the illegal use or 
 sale of the liquors, does not subject him to the penalties of the 
 statute. Stccte vs. B ailing (j all ^ 42 la., 87. 
 
 Ssiit Against the Saloou-Keeper and Owner of tlie Building- Jointly.— 
 
 The court instructs the jury, that the law under which this suit 
 is brought, provides that every wife, who shall be injured in. 
 person or property, or means of support, in consequence of the 
 intoxication, habitual or otherwise, of her husband, may have a 
 right of action, in her own name, against any person or persons, 
 who shall, by selling or giving intoxicating liquor to her hus- 
 band, have caused such intoxication, in whole or in part ; and the 
 law further provides, that any person 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 giv- 
 ing such intoxicating liquors, for all damages which may be sus- 
 tained in the manner above stated. 
 
 The jury are further instructed, that if they find, from the 
 evidence, that the defendant, II. II., is guilty, as charged in the 
 declaration, and if they further find, from the evidence, that the 
 other defendant, S. H., was the owner of the building or prem- 
 ises, where the liquors were sold or given to the deceased, and 
 that he then knew that the said defendant, II. II., was keeping 
 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 damages equally against 
 both, if any damages have been proved. 
 
 Propriety of tlie 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 upon 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 husband, if such intoxication has 
 been proved, and that in consequence of such intoxication, her
 
 184 INSTRUCTIONS 
 
 liiisl);uul (lied, as alleged in plaintiffs declaration, and that the 
 j)laintiff has been injured, in her means of supiH)rt, by reason ol" 
 such death, then the jury should find for the plaintiff, asairainst 
 such of the defendants as have been proved to have contributed 
 to such intoxication, in whole or in ])art. 
 
 Biinlen 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 the evidence, that the defendants, or one of 
 them, sold intoxicating liquors to the deceased, and thereby con- 
 tributed to cause his intoxication, in whole or in part, and that 
 his death resulted as a consequence of such intoxication. 
 
 To entitle the plaintiff to recover in this suit, it is not enough 
 for her to show that she has been injured in her means of sup- 
 port, by the death of lu'r husband; it nnist further appear, from 
 the evidence, that such death was caused by, or was in conse- 
 quence of, his intoxication, and that defendants, or one of then), 
 sold, or gave, him intoxicating licpioi's, which produced such in- 
 toxication, 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 defend- 
 ants, or one of them, sold beer to the deceased, M'hich contribu- 
 ted to cause his intoxication, in whole or in part; it must fur- 
 ther appear that the intoxication was the imnuMliate or })roxinuite 
 cause of his death, and not merely that it was the remote cause 
 or occasion of his death. 
 
 The court instructs the jury, that to entitle the plaintiff to re- 
 cover against any one or more of the defendants, the juiy must 
 believe, from the evidence, that such defendants sold or gave 
 intoxicating liquors to the deceased, ami thereby caused or con- 
 tributed to cause, his intoxication, in whole or in part; and so 
 far as the injury com])lained of results from the death of the 
 deceased, it must appear that the death was caused by such in- 
 toxication. 
 
 Proxhuatc Cause, What — In (let(u-mining whether an act is tlu; 
 proxinuite cause of an inpiry, tlu; legal test is: Was the iiipu-y 
 of such a character as miu-ht I'easonablv have been foreseen or
 
 IN CIVIL ACTIONS. 1S5 
 
 expected, as the natural result of the act complained of ? A 
 party is not, in law, chargeable with results which do not natu- 
 rally and reasonably follow as the consequences 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 intoxica- 
 tion, and of such kind as might have been reasonably anticipated 
 by a reasonable person. If they were not such, then the intoxica- 
 tion can not, in law, be regarded as the immediate and proxi- 
 mate cause of his death, and the defendants are responsible 
 therefor. 
 
 If the jury believe, from the evidence, that the immediate and 
 proximate cause of the deatli of the deceased, was either apo- 
 plexy, heart disease, or sunstroke, then the plaintiff cannot recover 
 in this case, unless the jury further believe, from the evidence, 
 that such disease was caused by, or was the natural and proxi- 
 mate result of the 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 fur- 
 ther, that such a result of the sale of the intoxicating liquors 
 might have been reasonably foreseen or anticipated by the de- 
 fendants, at the time such liquors were sold. 
 
 The court instructs the jury, as a matter of law, that 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, would flow from the act, they may be recov- 
 ered, otherwise they are too remote. A party cannot be hehl 
 responsible for injuries which could not reasonably have been 
 foreseen or expected, as the result of his misconduct. PTiillijps 
 vs. Dickerson, 85 111., 11; Shugart vs. Egan, 83 111., 56. 
 
 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 re- 
 cover in this case, the damages claimed must be the direct con-
 
 186 INSTRUCTIONS 
 
 sequences of the act complained of. The relation of cause and 
 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 including the illegal acts of a third i)erson. 
 
 New or Intervening Cause. — The court instructs the jury, as a 
 matter of law, that while a man is answerable for the natural 
 and pi'ol)able consequences of his own acts, still, if his act hap- 
 pen to concur with something exti'aordinary, and not reasonal)ly 
 to have been foreseen, and thus produce an injury, he will not 
 be liable therefor; j)rovided, such extraordinary and unforeseen 
 condition was not produced by, or was ncjt the direct result of, 
 his own wrongful act. 
 
 If the death of a party, who receives a wound while intoxi- 
 cated, (-an be traced as the natural and probable result of any 
 new and intervening cause, such as reckless exposure of himself, 
 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 com- 
 2)laincd 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. 
 
 [See " Negligence," Proximate Cause.'\ 
 
 Preponderance of Evidence Sufficient. — The jury are further in- 
 structed, that in civil actions of this kind, it is not neccessary 
 that the fact of the sale of intoxicating liquors, or any other fact 
 necessary to a recovery, should be proved beyond a reasonable 
 doubt ; it is only necessary that the facts should be proved to 
 the satisfaction of the jury by a preponderance of the evidence. 
 
 Oood Faith not a Mitigation, When — TJie jury are instru('ted, that 
 although they may believe, from tlie evidence, that any or either 
 of the defendants, in good faith, instructed his bar-kee})er not 
 to sell liquor to the deceased, still, this fact cannot be considered
 
 IN CIVIL ACTIONS. 187 
 
 by the jury in mitigation 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 effects of what is known as {sunstroJce), and that that 
 disease was, in a measure, caused by the habitual intoxication of 
 the deceased, for a considerable time before 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. 
 
 Verdict Must be Fouiuled ou the Evidence. — 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 speculations or conjectures, not 
 supported by the evidence. 
 
 LAN D LO RD AND TENANT. 
 
 Lease Not Modified or Surrendered — Suit for Reut. — The court in- 
 structs 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 ques- 
 tion, of the plaintiff, for the tlien coming season, or for the then 
 
 next year, and agreed to pay as rent therefor the sum of § , 
 
 and the jury further believe, from the evidence, that that con- 
 tract has never been modified, or rescinded, by any subsequent 
 agreement of the parties, and that the defendant 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 ques- 
 tion, was executed by the plaintiff 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 sur- 
 rendered, by the agreement of the parties, then the jury should
 
 188 INSTRUCTIONS 
 
 tind for the plaintiff, for the time (luring which they believe, 
 from the evidence, the rent lias remained unpaid, at the rate of 
 8 per year, unless the jury further believe, from the evi- 
 dence, that the contract was subsecpieiitly modified, by agree- 
 ment of the parties, and the rent reduced to $ per year, in 
 
 which case, the jury should calculate the rent due, at the rate of 
 
 $ a year, since the making of such new agreement, less the 
 
 amount paid thereon, if they find, from the evidence, that any 
 portion of the rent, coming due after that date, has l)een jmid. 
 Strobie vs. Dills, G2 111., 432. 
 
 If the jury believe, from the evidence, that the plaintiff and 
 defendant executed the lease, introduced in evidence, and tliat 
 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., after deducting such payments as the jury be- 
 lieve, from the evidence, have been made thereon, unless the 
 jury further believe, from the evidence, that said lease has been 
 canceled, surrendered, or modified, by some subsequent agree- 
 ment between the parties. 
 
 Oeciipant, Liable for Rent, When— Illinois. — The court further in- 
 Btructs the jury, that under the laws of this state, in all cases 
 where lands belonging to one pel-son, are held and occupied by 
 another, without any special agreement for the rent of such 
 premises, the owner of the land may sue for, and recover as 
 rent, a fair and reasonable satisfaction for such use and occu})a- 
 tion of his land. 
 
 The court further instructs the jury, that if they believe, 
 from the evidence, that the 2:)lainti£f, 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 occupied 
 said premises, by pasturing his cattle thereon, witho.ut any 
 special agreement as to the payment of rent, then under the 
 laws of this state, the plaintiff has tlie riglit to recover in this 
 suit, what such use and occupation was reasonably worth, under 
 the evidence in this case. R. S. of 111., chap. 80, § 1. 
 
 Surrender of Premises, How EJlected. — In respect to the alleged 
 surrender of the j^i'emises, the court instructs the jnry, that a
 
 IN CIVIL ACTIONS. 189 
 
 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. Nelson vs. Thompson^ 23 Mum., 508 ; 
 Morgan vs. Smith, 70 N. Y., 537 ; Ladd vs. Smith, 6 Oreg., 31G. 
 
 SniTender Must be Assented to by Landlord. — The jury are in- 
 structed, that no surrender of the premises in question, by the 
 defendant, could take effect unless the plaintiff, by himself 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 as- 
 sented to by the plaintiff, as a surrender of the possession to 
 him. Taylor's Land. & Ten., § 515. 
 
 The jury are instructed, that although they may believe, from 
 the evidence, that the defendant moved away from the premises 
 in question, and sent the keys of the building to the plaintiff, 
 and that the plaintiff retained the keys, this alone would not 
 constitute a surrender of the premises by the defendant, and an 
 acceptance of such surrender by the plaintiff. . Toionsend vs. 
 Albert, 3 E. D. Smith, 560; Withers vs. Larrahee, 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. 
 
 Eviction Stops the Rent. — The principle upon which a tenant is 
 required to pay rent, is the beneficial enjoyment of the premises 
 unmolested in any way by the landlord; and in this case, if the 
 jury believe, from the evidence, that after defendant went into 
 possession of the premises, the plaintiff took possession of any 
 part of the premises leased, against the consent of the defendant, 
 and in such a way as to prevent the defendant having the 
 beneficial use of all the premises leased, this in law is an evic- 
 tion, and releases the defendant from the payment of any more 
 rent while such eviction continues. 
 
 Eviction from a Part of the Premises. — Although the jury may be- 
 lieve, from the evidence, that the defendant has never been dis-
 
 190 IX STRUCT IONS 
 
 turbed in, or evicted from, the main building on the leased 
 premises, and that he has had the use and enjoyment of the 
 same, still, if they further believe^ from the evidence, that the 
 plaintiff has taken possession of any material part of the prem- 
 ises leased without the consent of the defendant, tliis 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. 
 Walter vs. Tucker, 70 111., 527; Zewis vs. Pa7/n, 4 Wend., 
 423; Colburn vs. Morrill, 117 Mass., 262; Dai/ vs. Watson, 8 
 Mich., 535 ; SJcaggs vs. Emerson, 50 Cal., 3. 
 
 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, whicth deprives him of 
 the beneficial use and enjoyment of a material part of the 
 premises leased, will amount to an eviction; if the jury in this 
 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 from the payment of all rent accruing after that 
 date. Taylor's Land. <k Ten., § 381. 
 
 If the jury 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 11. "W., who has since taken posses- 
 sion of the same under the lease to him, then in law this is an 
 eviction from the time the said II. W. so took possession, and 
 the defendant is released from the payment of all rent accruing 
 during such eviction. Smith vs. Wise et al., 58 111., 141. 
 
 If the juiy believe, fi'om the evidence, that the defendant 
 was a tenant of the premises at the time in cpiestion, under a 
 lease from the plaintiff, and that against defendant's consent, 
 and without any understanding or agreement permitting it, the 
 plaintiff took possession of any material part of said premises 
 and evicted the defendant tlierefroni, 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 defend-
 
 IN CIVIL ACTIONS. 101 
 
 ant continued to occupy a portion of said premises after that 
 time. Price vs. P., Ft. W. <& C. Ry Co., 34 111., 13. 
 
 Acts of Trespass not Eviction. — The court instructs the jury, that 
 to constitute an eviction there must be something more than a 
 mei-e trespass by the landlord ; there must be something of a 
 permanent character done by him, with the intention of depriv- 
 ing the tenant of the enjoyment of the premises, or of some 
 part thereof. The question of eviction or no eviction, is a ques- 
 tion 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 por- 
 tion of the demised premises by the wilful act of the landlord, 
 the rent is therel^y 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 depriving the tenant of the enjoyment of the premises from 
 which the eviction is alleged. Taylor's Land, and Ten., § 380; 
 Lynch vs. Baldwin., 69 111., 210. 
 
 What 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 trespass, or they 
 may amount to an eviction. The question whether they partake 
 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 
 loses the beneficial use of the same, this would constitute an 
 eviction; otherwise they would amount to no more than acts of 
 trespass. Ilaynes et al. vs. Smith, 63 111., 430 ; Taylor's Land, 
 and Ten., § 380; Myers vs. Gem.mel, 10 Barb., 537; Hazlett 
 vs. Powell, 30 Penn. St., 293; Mirich vs. Hojppin, 118 Mass., 
 582. 
 
 To constitute an eviction the acts of interference by the land- 
 lord with the tenant's possession must clearly indicate an inten- 
 tion, on the part of the landlord, that the tenant shall no longer 
 continue to hold tlie premises, or some material part thereof. 
 Morriss vs. Tillson, 81 111., 607.
 
 192 INSTRUCTIONS 
 
 Landlord's Lien for Rent — Illinois. — The jury are instructed, that 
 the statute of this state gives a landlord a lien upi^n 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 conhned to any particular crop, but eml)races all the 
 crops, or any portion of them, no matter upon which particular 
 part of the premises they were raised. Thom/psoa vs. Mead, 
 (>7 111., 305. 
 
 That 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 foi- the 
 period of six months after the exj^iration of the term for which 
 the premises were rented, and no levy of the crops thus grown, 
 or sale, under an execution against the tenant, will divest the 
 landlord of such lien. Miles vs. James, 36 111,, 309. 
 
 That 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 we)-e 
 leased by the landlord in the first instance, or whether they 
 were raised by a sub-tenant under such prior lease. Uhl vs. 
 Bighton, 25 111., 154. 
 
 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 premises, in any 
 one year, for the rent of that year; that su(;h 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 land- 
 lord's lien by levying an attachment or an execution upon the 
 property before the issuing of a distress warrant by the land- 
 lord. Mead vs. Thompson, 78 111., 02. 
 
 Lien Against Purchaser from Tenant, When. — That a purchaser of 
 
 grain raised by a tenant, upon which the landlord has a lien for 
 rent, with full knowledge of that fact, and that the rent is not 
 fully jiaid, will be liable to the landlord for the rent due to the 
 extent of the value of the grain purchased by him.
 
 IN CIVIL ACTIONS. 103 
 
 Tlio cdurt instructs the jury, that the lien given to a landlord 
 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 sale 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 sucli 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. 
 
 Waft vs. Scojield, T6 III, 201. 
 
 The court instructs the jury, that if they believe, from the 
 evidence, that when the defendant purchased the grain in cjues- 
 tion he knew that A. B. rented from the plaintiff the land 
 whereon the grain was raised, and that he neglected and failed 
 to inquire into the facts regarding the plaintiif^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. Prettijmati vs. Unland, 77 111., 206. 
 
 Tenant Holding Over— Contract Implied. — The court instructs the 
 jury, that when a tenant holds over after the expiration of his 
 term, with tlie 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 thereafter on the 
 same terms as to amount and times of payment as were provided 
 in the original lease. Taylor's Land, and Ten., § 525. Clapp 
 vs. Nolle, 81: 111., 62; Weston vs. Weston, 102 Mass., 514; 
 Sckuyler vs. Smith, 51 N. Y., 309; Bacon vs. Brown, 9 Conn,, 
 334; Finney vs. St. Louis et al., 39 Mo., 177. 
 
 That when a person rents property for a definite period of 
 time, as for a year, and the tenant remains in possession of the 
 premises, holding over after the expiration of the term for 
 which the property was rented, and after a reasonable time for 
 surrendering up the possession, wnth the consent of the land- 
 lord, expressed or implied, but without any new agreement, the 
 law will imjDly a new leasing for the*same length of time as the 
 original leasing and upon the same terms. 
 
 13
 
 194 INSTRTCTIOXS 
 
 111 this case, ii' the jury believe, from the evidence, that some- 
 time, or about, etc., the defeiidaiit leased the premises in ques- 
 tion for the then next ensuing season {()r year), agreeing to pay 
 
 therefor the sum of 8 ; and if the jury further believe, from 
 
 the evidence, that after the expiration of that lease the defend- 
 ant went on in the use and occupation of tlie premises, in the 
 same manner as he had used them under the lease, with the 
 consent of the plaintiff, but Avithout any new contract between 
 the parties, until tlie 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. 
 
 AVhere a tenant holds over after the expiration of his lease, a 
 continuance of the tenancy on the same terms will be presumed 
 against him; and where a tenant, from year to year, continues 
 to occui)y and enters upon another year, with the knowledge of 
 the landlord, without objection from him, a tenancy for another 
 year is thus created, upon the same terms and conditions as those 
 of the year before, 
 
 New Contract Implied, IVlieii — That when a tenant, under a lease 
 from year to year, is notified by liis landlord, before the expira- 
 tion of his term, that if he occupies the premises another year 
 he wall have to pay a certain increased rent, and the tenant 
 holds over without any further contract or understanding be- 
 tween 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. Despard vs. W(dhrid<je, 15 N. Y., 374; 
 Iliggins vs. Ilalligan, 46 111., 173; Hunt vs. Bailey, 39 Mo., 
 257. 
 
 Wnms^fiil Holdiiiir Over — Illiiiids. — The court instructs the jury, 
 that when a lease has expired by its terms and the tenant holds 
 over, such holding, though intentional, is not within the statute 
 imposing the penalty of double rent, unless such holding over is 
 knowinglv and wilfully wrongful. When a tenant continues 
 to hold over, after the expiration of his lease, under a reason- 
 able l)elief that he was doing so rightfully, he does not incur the 
 penalty of double rent for holding over.
 
 IN CIVIL ACTIONS, 195 
 
 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 wrongfully, 
 still if they further believe, from the evidence, that the defend- 
 ant had reasonable grounds for believing, and did believe, he 
 had a riffht to hold over, then he would not be liable to the 
 penalty of paying double rent for the premises. Stewart vs. 
 Hamilton, ^^ 111., 255. 
 
 Tenant Cannot Deny Landlord's Title. — The court instructs the 
 jury, as a matter of law, that a tenant is not permitted 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 defendant leased the 
 premises in question from the mother of the plaintiff, and took 
 possession of the same under such lease, and has not since sur- 
 rendered up such possession, then, if the jury further believe, 
 from the evidence, that the mother of plaintiff is dead, and that 
 she willed the premises to the plaintiff, as claimed, then the 
 defendant is not permitted to deny the plaintiff's title, so long 
 as the defendant remains in such possession. 
 
 Landlord not Bound to Repah*. — The jury are instructed, that 
 under the lease introduced in evidence the landlord was under 
 no obligation to make repairs on the premises, or to pay for any 
 made by defendant; and unless the jury believe, from the evi- 
 dence, that some subsequent agreement or arrangement has been 
 made by the parties, by which the plaintiff has agreed to make 
 such repairs, or to pay for those made by defendant, then as to 
 the question of repairs the jury should find for the plaintiff. 
 
 That without some express agreement to that effect, a landlord 
 is under no obligation to make repairs on the premises during 
 the time for which they are leased. Taylor's Land, and Ten., 
 § 327. 
 
 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
 
 196 INSTKUCTIOXS 
 
 upon it ill trespass, or its value in trover. lie lias a special lien 
 iilHiii it i^iven by statute, which may be enforced by distress for 
 rent. Morrill vs. Barnes, 57 Ga., 40-i. 
 
 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, QC^ 111., 245. 
 
 In farming on shares, the tenant, as against the landlord, is 
 entitled to the possession of the whole (n-op while it is growing, 
 and may recover damages from the landlord if the cattle of the 
 latter wrongfully break into the field and injure the crop. 
 Front vs. Hardin, 56 Ind., 165. 
 
 Contra. — The tenant, farming land on shares, cannot sue the 
 landlord 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. Ilollenheck, 37 Mich., 504. 
 
 LI BE L.— (See Slander.) 
 
 Plea of Justification Filed If the jury believe, from the evi- 
 dence, that the defendant published the libel, as charged in 
 plaintiff's declaration, and tliat lie has failed to show, by a pre- 
 ponderance of evidence, the truth of the chai'ges made against 
 the plaintiff, in the plea of justification, then the jury should 
 find a verdict for plaintiff, and assess his damages at such a sum 
 as the jury believe, f)'om the evidence, the plaintiff ought to 
 recover, not exceeding the amount claimed in the declaration. 
 
 The court instructs the jury, that if they believe, from the 
 evidence, that plauitiff has proved the puldication, as charged 
 in his declaration, and that defendant has failed to prove, by a 
 ]>rcponderance of evidence, the truth of the plea of justification, 
 as pleadecl by him, then and in such case, tlie jury should i-ender 
 their verdict in favor of the plaintiff for such an amount as they 
 shall believe, from the evidence, he is entitled to recover. 
 
 If the jury ])elieve, from the evidence, that the defendant 
 composed and published the printed article in plaiuliff's decla-
 
 IN CIVIL ACTIONS. 197 
 
 ration mentioned and set out, as therein stated, tlien tlie jury 
 should find the defendant guilty, unless they further believe, 
 from the evidence, that tlie charges, statements and insinuations 
 in said printed article are true, as stated in defendant's plea. 
 
 And if the jury find the defendant guilty, they will find such 
 damages for the jjlaintiff as they believe, from all the circum- 
 stances of the case, appearing in evidence, he ought to receive 
 from the defendant, not exceeding the amount claimed In the 
 declaration. 
 
 Malice Presumed, Wlien. — If the jury believe, from the evidence, 
 that defendant published the libel of and concerning the plain- 
 tiff, as charged in plaintiff's declaration, then the law presumes 
 malice on the part of the defendant against the plaintiff, and it 
 rests upon the defendant to rebut this presumption of malice, 
 and if he has not done so, by a preponderance of evidence, then 
 the jury should find for the plaintiff, unless they believe, from 
 the evidence, the truth of the facts stated in the plea of justifi- 
 cation, filed by defendant. 
 
 Plea of Justiflcatioii an Aggravation of Damages, Wlien. — If the jury 
 believe, from the evidence, that the plea of justification 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 pur- 
 pose of injuring the plaintiff, then, if the jury find defendant 
 guilty, they may regard the plea of justification as an aggrava- 
 tion of the original offense. 
 
 Not an Aggravation of Damages, When. — The jury are instructed, 
 that when a plea of justification of libelous publications is filed 
 ^y^ in good faith, and with an honest expectation that the same can 
 be proved, and evidence is introduced honestly, for the purj)Ose 
 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 neces- 
 sarily aggravate the damages, even though the jury find that it 
 has not been proved; provided, the jury further believe, from 
 the evidence, that defendant filed such plea, believing in good
 
 198 INSTRUCTIONS 
 
 faitli tliat it was true, and that he coiihl prove it. Thomas vs. 
 JJunaicay, oO IlL, 373, 
 
 Mitijration of Daiiiaises. — In the event that the jury do not find 
 the plea of justitication to be true, but do find the defendant 
 guilty, then the jury, in estimating the amount of plaintifrs 
 damages, may properly take into considei-ation sueh facts, if any 
 are proven, as may tend to show whether or not the publi(;ation 
 complained of was made by defendant in a homi fide belief that 
 the publication M'as true. 
 
 And the jury nuiy also take into consideration, in the estima- 
 tion 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. 
 
 >o Plea of Justification Filed. — If the jury believe, from the evi- 
 dence, 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 evidence, 
 not in justification of the alleged libel, but in excuse or extenu- 
 ation, and for the purpose of diminishing the amount of plain- 
 tiffs damages. If the plaintiff has })roved the publication of 
 the libel, as alleged, then he is entitled to a verdictt, and the 
 amount of his damages, if any, is to be determined by all the 
 evidence in the case. 
 
 General Issue Impliedly Admits, Etc. — In this case, the defendants, 
 by their plea of not guilty, admit that the plaintiff 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 regard- 
 ing the plaintifi's general character, and the existence of reports 
 and rumors affecting it, was received not for the purpose of show- 
 ing the plaintiff guilty of the matters referred to, his innocence 
 being admitted by the defendant's plea of not guilty; this evi- 
 dence was received in excuse and in mitigation of the plaintili's 
 damages, and for no other purpose.
 
 IN CIVIL ACTIONS. 199 
 
 LIMITATIONS. 
 
 Statute a Bar, When. — The court instructs the jury, that in cases 
 like the one on trial, unless the suit is comnienccd within {five) 
 years after the cause of action accrues, then the statute of limita- 
 tions is a complete bar. And, in this case, if the jury believe, 
 from the evidence, that suit was not commenced within {five) 
 years after the cause of action accrued, that is within {five) years 
 after the debt sued for became due, then the statute of limita- 
 tions is a complete bar to this suit, and the jury must find for 
 the defendant; unless the jury further believe, from the evi- 
 dence, that the defendant has made a new promise to pay the 
 debt within {five) years of the commencement of the suit. 
 
 Payment a New Promise. — If the jury believe, from the evi- 
 dence, 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 party 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. 
 
 When the Statute Begins to Run. — As regards the defense of the 
 statute of limitations interposed in this case, the jury are in- 
 structed, that if one person gives credit to another until he gets 
 into a certain condition financially, or until the haj^pening 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 begrin to rmi until the cause of action has 
 arisen, that is, until a suit could be brought for the debt. 2 Par. 
 on Cont., 370. 
 
 The jury are instructed, that the statiite 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.
 
 200 IXSTRrCTIONS 
 
 Aii;l. ill this case, if the jiirv liclicx-c, from the cvidcncL', tliat 
 CA\\ credit \vas i;-i\i'n l»y phiintilf to dofeiulant, then the (^''"f) 
 yeaivs' liinitatiou did not begin to run until the expiration of that 
 credit. 
 
 Ksiniiiiiir Acrouuts. — The eourt instrucls the jnr\', as a nuutei- of 
 hiw, that ill the case of running accounts het\s'ecn parties, the 
 date of the last transaction, which "was properly the sul)ject 
 matter of entry in such account, or the date when such item 
 became payable, is the time at which the right of action accrues 
 for the I'ccovery, ])\ cither l)arty, of any hahmcc remaining due 
 on such accounts. 
 
 If there be mutual running accounts between parties, and there 
 is any item for whicli a credit or a chai'ge could be properly made 
 within (Jive) years before bringing suit, or where a payment has 
 been nuxde by one of the parties upon tlie account within (Jive) 
 years, such credit, charge or payment is evidence of a promise 
 implied by law to i)ay the balance of such account. And, in sucli 
 case, a suit for such balance, if brought within (Jive) years after 
 such credit, charge or payment, is not barred by the statute of 
 limitations. 
 
 If the jury believe, from the evidence, that there are mutual 
 running accounts between the parties, and involved in this suit, 
 and that any items thereof were created in favor of the respect- 
 ive parties within (Jii'e) years }>rior to the coninioncement of 
 this suit, then the statute of limitations should not be allowed as 
 a bar against any part of such accounts, whether for plaintiff 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; neither is it material, in such case, whether 
 any or all of such denuinds consist of money loaned, goods fur- 
 nished, labor performed, or for board oi- I'ent. In either case 
 the whole of su(;h accounts should be taken into consideration 
 by the jury, without reference to the statute of limitations. 
 Angel on Lim., ^ 147; 2 Greenleaf Ev., § 445. 
 
 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
 
 IN CIVIL ACTIONS. 201 
 
 commence to ran until he returns within the state again; and, 
 in such case, it is not necessary that the party shoukl absolutely 
 remove from the state, without an intention of returning. Any 
 absence from the state, when the cause of action accrues, sus- 
 pends the operation of the statute for the time being. 
 
 The jury are instructed, that if a Jiarty is residing within thi;. 
 state wlien the cause of action against him accrues, then, in 
 order that his absence from the state shall suspend the operation 
 of the statute, it must appear not only that he has left the state, 
 but also that he resides out of the state. {III. Statute.) 
 
 Debt Revived by New Promise. — The jury are 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 consideration to support a subse- 
 quent pi'omise 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 com- 
 mencement of this suit; yet, if the jury further find, from the 
 evidence, that the defendant has, within the said period of {five) 
 years, promised the plaintiff to pay such debt, then, .as to such 
 demand, the jury should find for the plaintiff. 
 
 The Pi-omise Must be a Promise to Pay the Debt. — The jury are in- 
 structed, that 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. 
 
 What Amounts to a Promise. — If the jury believe, from the evi- 
 dence, that the defendant, upon the occasion when the new 
 promise is claimed to have been made, said to the plaintiff, (" / 
 know the debt is due, and ought to he paid,'') this language 
 would authorize the jury to infer a promise to pay the debt. 
 
 Wliat is Not a Promise. — If the jury believe, from the evidence, 
 that upon the occasion referred to by the witnesses, the defend-
 
 202 INSTRUCTIONS 
 
 ant said, (^'that account is correct ") or (" T received the money,") 
 or ('" / had the goods,") or {"that is my note,") this would not 
 alone amount to a j^roniise to pay the debt. Ayers vs. Richards, 
 12 in., 140. 
 
 Fraud and Deceit. — The court instructs the jui-y, tliat in the 
 case of a claim or denumd founded on fraud aud (k'ceit, the 
 statute of limitation does not begin to i-un until after the fraud 
 and deceit are discovered by the injured })arty. 
 
 Though the jury may believe, from the evidence, that a fraud 
 was practiced upon the plaintiff in manner and form as charged 
 in his declaration, still, if the jury fuilher believe, from tlie 
 evidence, that the })laintiff discovered the fraud, or by the use 
 of reasonable cai'e aud diligence, could have discovered it more 
 than {Jive) years prior to the commencement of this suit, then 
 the statute of limitations constitutes a bar to the plaintiff's i-ight 
 to recover, and the jury should lind foi- the defendant. 
 
 If the jury believe, from the evidence, that a fraud was prac- 
 ticed upon the plaintiff, as charged in his declaration, still, if 
 you further believe, from the evideiu-e, that it was done more 
 than {Jive) years prior to the coiumeucement of this suit, then, 
 under the pleadings in this case, the statute of limitations bars 
 the j)laintiff's right of recovery against the defendant. 
 
 MALICIOUS PROSECUTION. 
 
 Wliat Must be Proved. — The court instructs the jury, that if they 
 believe, from the evidence, that the defendant maliciously caused 
 the arrest and imprisonment of the plaintiff, uithout probable 
 cause, as alleged in the declaration, tlnni tlu? j'"'y should liud for 
 the plaintiff, and assess his damages at what they thiuk })ro})er, 
 from the facts and circumstances proved, not exceeding, how- 
 ever, the amount claimed in the decdaration. 
 
 If the jury believe, fi-oni the evidence, that the defendant 
 had pi'obable cause to believe that the plaintiff was guilty of 
 the offense charged against him, then it is not material whether 
 the defendant was actuated by i)roper or improper motives in 
 institutiug the crimiiuil proceediuirs against the plaintiff. To
 
 IN CIVIL ACTIONS. 203 
 
 authorize a i*ecovery in this chiss of cases it must not only 
 appear that the defendant was actuated by malice, but the jury 
 must further believe, from the testimony, that the defendant 
 had no probable cause, or no reasonable ground, to believe that 
 the plaintiff was guilty of the offense charged against him. 
 And the court further instructs the jury, that probable cause 
 means a reasonable ground of suspicion, supported by circum- 
 stances in themselves sufficiently strong to warrant a reasonably 
 cautious man in the belief that the person accused is guilty of 
 the offense charged. Ames vs. Snider, 69 111., 376 ; Flickinger 
 vs. ^Yagl^er, 46 Md., 580. 
 
 Want of Probable Cause must be Proved. — The court instructs the 
 juiy, that want of probable cause, though negative in its charac- 
 ter, must be shown by the plaintiff, by affirmative evidence, and 
 the jury have no right to infer it from any degree of malice 
 which may be proved. Broion vs. Smith, 83 111., 291. 
 
 Charge must be Wilfully False. — To sustain the charge of malice, 
 the criminal charge must appear, by a preponderance of the 
 evidence, to have been wilfully false. To sustain a suit for 
 malicious prosecution, the facts ought to be such as to satisfy 
 any unprejudiced, reasonable miiul that the accused had no 
 ground for the prosecution, except his desire to injure the ac- 
 cused. Ilarphain vs. WJiitnerj, 77 111., 32. 
 
 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 against him, as charged 
 in the declaration, then the jury should find the defendant 
 guilty. 
 
 What is Probable Cause. — That to constitute probable cause for 
 a criminal prosecution, there must be such reasonable grounds 
 of suspicion, supported by circumstances, sufficiently 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. Feeley, 56 N. Y., 451; Winehiddle 
 vs. Porterfield, 9 Penn. St., 137; OolUns vs. Ilayte^ 50 111., 
 353; Fagnan vs. Knox, QQ N. Y., 525.
 
 204: INSTKUCTIONS 
 
 If the jury believe, from the evidence, that (lefciulaut h.a'l 
 probable cause to institute the criiaiual })i'()i'ee(linn's, then the 
 plaintiff cannot recover in this suit ; and proliahle (rause i^ 
 defined 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 person 
 accused is guilty of the offense ^ith which he is charged. >Siiiith 
 vs. Zent, 59 lud., o(>2. 
 
 Probable cause for instituting a criminal pro^^ecution is a 
 reasonable ground of suspicion, snp})<)rted by circumstances 
 sufficiently strong in themselves to warrant a cautious man in 
 the belief that the person accused is guilty of the offense 
 charged. Gallaway vs. Burr, 32 Mich., 332; Ames vs. Snider, 
 69 IlL, 376. 
 
 Malice may be Inferred from Want of Probable Canse. — The court 
 instructs the jury, that if they believe, from the facts and cir- 
 cumstances proved on this trial, that defendant Iiad not probalile 
 cause for prosecuting the plaintiff, and that he did })r()secute 
 him, as charged in the dec-laration, then the jmy may infer 
 malice from such want of })i-obable cause. Cooley on Torts, 
 185; Ewing vs. Sanford, 19 Ala., 605; llarhrader vs. Moore, 
 44: Cal., 144; Panhett vs. Livermore, 5 Clark, la., 277; Kruij 
 vs. Ward, 77 111., 603; Holliday vs. Sterling, 62 Mo., 321. 
 
 That if a crinnnal prosecution is shown to be witliout reason- 
 able or probable cause, the jury may infer malice. 
 
 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 pro- 
 cure the surrender of the prosecutor's note, it is malicious in law. 
 
 If the jury believe, from the evidence, that when tlu' defendant 
 made the complaint before the justice, he did not have jirobable 
 cause to believe that such complaint was true, then the jui-y mav 
 infer malice, and express malice need not lie proved. 
 
 The jury are instructed, that while the law is, that they may 
 infer malice from the want of prol)ablo cause for the institution 
 of the criminal prosecution against the plaintiff, if they believe,
 
 IN CIVIL ACTIONS. 205 
 
 from the evidence, that such prosecution Vv'as commenced vrith- 
 out probable cause, still, the jury are not bound to infer malice 
 from that fact. The law is, that malice may be, but it is not 
 necessarily, inferred from want of probable cause for the com- 
 mencement of a criminal prosecution. Panket vs. Livermore, 
 5 la., 277; Smith vs. Howard, 2S la., 51; Cooley on Torts, 185. 
 
 Burden of Proof on the Plaintiff. — The jury are instructed, that 
 to warrant a conviction in this case, the plaintiff nnist not only 
 prove malice, bat he must also show that there was no probable 
 cause for the prosecution in question ; and the defendant is not 
 l)ound 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 the evidence, that the plaintiff has 
 shown malice on the part of the defendant, in causing the crim- 
 inal prosecution in question to be commenced, still, if the jury 
 further believe that the plaintiff has failed to show, by a pre- 
 l^onderance of evidence, the want of probable cause, then the 
 jury should find for the defendant. 1 Hill, on Torts, 416. 
 
 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 evi- 
 dence, 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 prose- 
 cution. 
 
 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 that he was arrested in consequence 
 thereof, then it is a question of fact to be determined by the
 
 206 IXSTKUCTIOXS 
 
 jury, from the evidence, whether the defeiKhuit, whcMi lie m:u\v 
 the complaint, acted upon such inforuKitiou us men df ordinary 
 care, prudence and discretion would have t'clt warranted in act- 
 ing upon under similar circumstances. Livinyston vs. Bur- 
 roughs, 33 Mich., 511. 
 
 The jury are instructed, that to entitle the plaintiff to recover, 
 the jury must find, from the evidence, three material j^oints — 
 first, that the prosecution complained of was commenced 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 plain- 
 tiff has failed to show, by a preponderance of evidence, either 
 one of these three propositions, the jury shouhl find for the 
 defendant. 
 
 What is a Want of Probable Cause. — 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 circum- 
 stances connected with the transaction, out of which the pros- 
 ecution grew, and that no information regarding it came to the 
 knowledge of defendant, whi(di would warrant a reasonable an<l 
 prudent man in believing that the plaintiff was guilty of the 
 charge made against him, then there was no probable cause for 
 the prosecution. Mc Williams vs. Jlohen, 42 Md., 56 ; Ilarj)- 
 ham vs. Wldtney, T7 111., 32. 
 
 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 preponder- 
 ance of the evidence, that the prosecution complained of was 
 made with malice, aiul also without probable cause; and if 'ootli 
 these recpiisites are not so proved, the jury should find for the 
 defendant. Cooley on Torts, 184; Casjyersoii \ii. Sproule, ^VJ 
 Mo., 39; Center vs. Spring, 2 Clarke, la., 393 ; Ilet/iie vs. Blair, 
 62 N. Y., 19; Slddmore vs. Bricher, 77 111.. li;4. 
 
 Although the jury may believe, from the evidence, that the 
 criminal prosecution complained of was made by the defendant 
 through malice, still the jury nnist not infer want of prolnil)le
 
 IN CIVIL ACTIONS. 207 
 
 cause from such malice. Want of probable cause must be uiade 
 to appear from the evidence, or else the jury must find for 
 defendant, no matter how malicious the jury may find the 
 defendant's motives to have been, in instituting the criminal 
 prosecution. 
 
 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 have been committed. 
 If the facts which come to a person's knowledge are such as to 
 create a belief that a crime had been committed by the person 
 charged, in the mind of an impartial, reasonable man, this would 
 be sufficient to constitute probable cause for making an arrest, 
 althouirh no crime had in fact been committed. 
 
 If the jury believe, from the evidence, that the defendant, 
 when he instituted the prosecution complained of, honestly be- 
 lieved the plaintiff was guilty of the offense charged, and that 
 defendant's belief was founded on a knowledge of circum- 
 stances tending to show such guilt, and suificient 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. 
 
 A party making complaint against another, and procuring 
 his arrest 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 proof is 
 on the plaintiff to show that the defendant acted maliciously, 
 and without any reasonable or probable cause. Calef vs. 
 Thomas, 81 111., 478. 
 
 The Prosecution mnst be Ended. — The jury are instructed, that in 
 order to maintain an action for malicious prosecution, it must 
 appear, from the evidence, that the alleged malicious prosecu- 
 tion has been legally terminated. Striking the case from the 
 docket, on motion of state's attorney, with leave to reinstate the
 
 208 INSTRUCTIONS 
 
 same, is not a legal tenninatiuu of the pi\)soc'Uii()ii. Blaloch 
 \s,. BandalljIQ 111., 224; Clark vs. Cleveland, (> Hill., o44; 
 Cardinal vs. Smith, 100 Mass., 159; Leever vs. Ilainmlll, 57 
 Iiid., 423. 
 
 Discliarge by Justice. — That the fact that the plaintiff was dis- 
 charged by the justice of the peace before whom he was broiiglit, 
 upon the charge made against him, is not such evidence of a 
 M'ant of probable cause as will alone sustain an action for a 
 malicious prosecution. Thorpe vs. Balliett, 25 111., ;];J0. 
 
 Advice of Counsel. — If a party about to commence a criminal 
 prosecution communicates to the state's attorney all the material 
 facts affecting the (piestion of tlic guilt of the party about to be 
 accused, which are known to him, or of which he had notice, 
 and then a(;ts upon his advice, the presumption of malice is re- 
 butted, and an action against him for malicious prosecution will 
 fail. Calef vs. Thomas, 81 111., 478; Andersen vs Frind, 71 
 111,475. 
 
 The court instructs the jury, as a matter of law, that when a 
 party communicates to counsel in good standing all the facts 
 l)caring upon the guilt of the accused, of which he has knowledge, 
 or could have ascertained by reasonable diligence, and in good 
 faith acts nj^on the advice of such counsel in prosecuting the 
 party accused, he cannot be held responsible for malicious 
 prosecution. Josselyn vs. McAllister, 22 Mich., 300; Andersen 
 vs. Frind, 71 111., 475; Ash vs.'Marlow, 20 Ohio, 119; W<dter 
 vs. Sample, 25 Pa. St., 275; Sharpe vs. Johnson, 59 Mo., 557. 
 
 The court instructs the jury, that if they believe, from the 
 evidence, that the defendant, before he instituted the crimiiuil 
 prosecution, fully, faii-ly aiul truthfully stated all the facts and 
 circumstances in relati(jn to the alleged crime, to respectable 
 counsel, and that such (!ounsel advised him that he had reason- 
 able cause to institute the criminal proceedings against the 
 })laintiff, and that the di^fendant, in good faith, acted upon such 
 advice, then the plaintiff cannot maintain this action, whether 
 the defendant in the criminal prosecution was guilty or not; ami 
 the jury should find for the defendant. Boss vs. lanes, 20 
 111., 259.
 
 IN CIVIL ACTIONS. 200 
 
 The court instructs the jury, that whetlier or not the defend- 
 ant did, before instituting the criminal proceedings, make a 
 full, fair and honest disclosure to the attorney of all the material 
 facts bearing upon the guilt of the phiintiif, of which he had 
 knowledge, and which he could have ascertained by reasonable 
 diligence, and whether, in commencing such proceedings, the 
 defendant was acting in good faith upon the advice 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 nothing in this suit. 
 
 If the jury believe, from the evidence, tliat the defendants 
 instituted 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 the 
 jury believe, from the evidence, that the criminal charge was 
 false, and made without probable cause. 
 
 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 w^as the retention of the $ , mentioned by 
 
 the witnesses, and that the defendant knew, at the time he ad- 
 vised 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 attorney's advice 
 is no protection to him in this suit. 
 
 Pi-esumption from Good Character. — If the jury believe, from the 
 evidence, that tlie plaintiff, up to the time of his arrest, uni- 
 formly bore a good reputation for honesty and integrity, and 
 that defendant knew his reputation to be such up to tlie time of 
 his arrest, then that fact is a proper one to be considered by the 
 jury, in connection with all the other evidence in the case, in 
 determining whether or not defendant had probable cause to 
 believe, and did believe in good faith, that the plaintiff was 
 guilty of the crime charged against him. 
 
 14
 
 210 INSTRUCTIONS 
 
 MALPRACTICE. 
 
 A Warranty of Skill, Kuowleils?e and Care Implied. — The court in- 
 structs the jury, that if a person liohls himself out to the pul)lic 
 as a physician and surgeon, he must be hehl to possess and ex- 
 ercise ordinary skill, knowledge and care in his profession in 
 every case of which he assumes the charge, whether in the par- 
 ticular case he i-eceives fees or not. McNevins vs. Lome, 40 111., 
 209; 1 Hill on Torts, 224; McOandless vs. 3fcWha, 22 Penn., 
 261; Simonds \&. Henry, 39 Me., 155; Geiselman vs. Scott, 
 25 Ohio St., 86. 
 
 The jury are instructed, that where an injury results from a 
 want of ordinary skill, or from a failure toexei'cise ordiiuiry skill 
 or attention in the treatment of a case, the physician or surgeon 
 is lield responsible for such injury. JBarnes vs. Means, 82 
 111., :579. ' ' 
 
 That the highest degree of care and skill are not required of a 
 physician to relieve him from liability for damages resulting from 
 Liis treatment of a patient — only reasonable care and skill are 
 requii'ed. 
 
 That while persons, who hold themselves out to the puldic as 
 physicians and surgeons, are not required to possess the highest 
 desri'ee of knowledo^e and skill which the most learned in their 
 profession may have acquired, yet they are bound to possess and 
 exercise, in their practice, that degree of knowledge and skill 
 which is ordinarily possessed by physicians and surgeons in 
 practice. Gramvx vs. Boener, 56 Ind., 497. 
 
 The court instructs the jury, that every person who offers his 
 services to the public generally, in any profession or business, 
 impliedly contracts with those who employ him, that he is a per- 
 son of the skill and experience which is possessed, ordinarily, 
 by those who ju-actice, or profess to miderstand the same art or 
 business, and which is generally regaided by those most con- 
 versant with that pi'ofession or employment, as necessary to 
 (pialify him to engage in such business successfully. 
 
 The court instructs the jury, that a surgeon who offers his 
 services to the public as such, impliedly contracts with his em-
 
 IN CIVIL ACTIONS. 211 
 
 plover, that he has ordinary knowledge and skill in his profes- 
 sion ; and also, that he will use reasonable and ordinary care and 
 diligence, in the exertion and application of his skill and knowl- 
 edge, 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 pliysician and sur- 
 geon, and that he was employed to treat, as a surgeon, an injury 
 sustained by the plaintiff, as charged in the declaration, and that 
 he undertook such employment, and that he did not treat the 
 said injury with ordinary skill and knowledge, and that the plain- 
 tiff sustained any injury or damage by reason thereof, then the 
 jury should find for the plaintiff. 
 
 If the jury believe, from the evidence, that the plaintiff, hav- 
 ing broken his leg, employed the defendant, as his physician 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 plaintiff was entitled to 
 receive from the defendant the care, attention and skill of an 
 ordinarily skillful physician and surgeon. 
 
 And if, from the evidence in the case, the jury further believe, 
 that the plaintiff did not receive from the defendant such care, 
 attention and skill, and that in consequence thereof, and without 
 fault on his part, the plaintiff suffered increased pain, and suf- 
 fered the injury complained of in the declaration, then the de- 
 fendant is liable in this suit, and the jury should render a verdict 
 for the plaintiff. Kendall vs. Brown^ 86 111., 387. 
 
 The court instructs the jury, that the care and skill a surgeon 
 should use in the practice of his profession, should be propor- 
 tionate to the character of the injury he treats, within the limits 
 of all ordinary skill and 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 ordi- 
 nary surgical skill and knowledge, and that the plaintiff was in- 
 jured 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-
 
 212 INSTRUCTIONS 
 
 tioii of the (iihia), or either of the bones of the wrist or forearm 
 mentioned in the dechiration, and that such improper or unnatu- 
 i-al position of said bones resulted from want of ordinary skill, 
 or from the negligence of the defendant, while treating the in- 
 jury in question, as physician or surgeon, tluMi 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 prin- 
 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 the plaintiff 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 treat- 
 ment of the plaintiffs injuries, as alleged in tlie declaration in this 
 case, and that, as a consequence thereof, the plaintiff has suffered 
 damages, the jury should find for the ])laiiitiff and assess the 
 damages in such an amount as they believe, from the evidence, 
 he has sustained, not exceeding S • 
 
 If the jury believe, from the evidence, that the defendant, in 
 the treatment of the injury in (picstion, did not exhibit the 
 knowledge and skill of an ordinary good surgeon, or did m^t ap- 
 ply such knowledge and skill with i-easonahle care and attention, 
 and that by reason thereof the plaintiff suifered damage, 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 consequences complained of. 
 
 Patient Bound t<» Follow Instructions. — The court instructs the jury, 
 that whei-e a pei'son emjiloys a ])hysician or surgeon to treat a 
 <lisease or an injury, the patient is liouud to adopt and i'ollow 
 "Ut all reasonable directions and recpiirements of the physician, 
 relating to the treatment or cai'e of the disease or injury, and if 
 he does not do so, and injurious consequences, affecting the dis- 
 ease or injury, results from his failure so to do, he cannot recover
 
 IN CIVIL ACTIONS. 213 
 
 of the physician or surgeon, alleging a want of skillfulness on 
 the part of the physician or surgeon. Gramm vs. Boenei^ 50 
 Inch, 497; Geiselman vs. Scott, 25 Ohio St., 86. 
 
 The jury are further instructed, that it is the duty of a patient 
 to cooperate with his physician or surgeon, and to conform to 
 all reasonably necessary prescriptions and directions, regarding 
 the care or treatment of the disease or injury; and if he will 
 not, or if, under the pressure of pain, he cannot, then lie cannot 
 hold his sui-geon responsible for any injurious consequences aris- 
 ing from his failure to obey such prescriptions 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 di- 
 rected the plaintiff to observe absolute rest as a part of the treat- 
 ment of the injury in question, and that that direction was such 
 as a sui'geon or physician of ordinary skill would adopt or sanc- 
 tion; and further, that the plaintiff negligently failed to observe 
 such direction, or purposely disregarded the same, and that such 
 neglect or disobedience directly contributed to the injuries of 
 which the plaintiff 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. Geiselman vs. Scott, 25 Ohio St., 80. 
 
 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 charo-es of nes^lio-ence contained in the dec- 
 laration, and that these charges relate to the setting or reducing 
 the fracture of the plaintiff's leg, and also to the subsequent treat- 
 ment thereof; and unless the plaintiff has proved, by a prej)on- 
 derance of evidence, that the leg was not properly set in the first 
 instance, or that the subsequent treatment of the leg by the de- 
 fendant was unskillful and improper, 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. 
 
 Although the jury may believe, from the evidence, that the 
 plaintiff's leg became shortened in consequence of the fracture, 
 or during the course of treatment subsequent to the fracture, 
 still the defendant is not liable in damages therefor, unless the
 
 211 INSTKUCTIONS 
 
 shorteniiio- was due to the want of reasonable and onlinarv 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, uor the means and appliances for that purpose be 
 safely used, befoi-e the time for bony union to commence, and 
 that bony union, under proper treatment, would not, and did not 
 connnenco before tlie defendant was discharged, and the plaintiff 
 placed under charge of another sui-geon, then the defendant 
 would not be liable in danuiges resulting from the shortening of 
 the limb. Kendall vs. Brown, 74 111., 232. 
 
 In a suit against a surgeon for nialpi-actice in treating an in- 
 jury, the plaintiff is not entitled to recover anything on account 
 of the i)ain and suffering caused by the injury, but only for such 
 additional pain, suffering and injury as is produced, by the negli- 
 gence or want of skill of the defendant, in the treatment. Wen- 
 ger vs. Ccdder, 78 III, 275. 
 
 [See Measure of Damages.] 
 
 MARRIED WOMEN. 
 
 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 disabililies ot married women have been removed or greatly- 
 modified by statute. Those laws vary greatly in the different states, and 
 this fact must be borne in mind. 
 
 She May Own, Manage or Convey. — The (•< »urt instructs the j ury, that 
 by the laws of this state a mari-icd woiuan nuiy own, in her owu 
 right, real or personal property obtained by descent, gift or pur- 
 chase, and she may manage, sell and convey the same to the 
 same extent and in the same manner that her husband can 
 property belonging to him. 
 
 The court instructs the jury, that since the year IS — the hus- 
 ])and does not, by marriage, ac(piire title to the money or prop- 
 erty of the wife, but she retains all her rights of property, and 
 may deal with the same as if she was unmarried. And money 
 loaned by the wife to the husband since the statute of 18 — , 
 whether loaned before or after marriage, is a proper personal 
 charge against him while living, and against his estate after his 
 death. WJdtford vs. Daggett, 84 111., 144.
 
 IN CIVIL ACTIONS. 215 
 
 Tlie court instructs the jury, that 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. 
 
 The fact 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 make 
 the crop his, or subject it to the payment of his debts. Bon- 
 gard vs. Core, 82 111., 19. 
 
 May Employ Hnsbaiid as Agent. — That under the laws of this state 
 a married woman owning either real or personal property, in 
 her own right, may employ her husband as her agent to transact 
 the business growing out of or relating to such property, without 
 thereby subjecting the property to the payment of the husband's 
 debts. 
 
 Although the jury may believe, from the evidence, that the 
 plaintiif, 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 lal)or in such manage- 
 ment, still this alone would not subject the farm of the plaintiff, 
 or the proceeds thereof, to the payment of the husband's debts. 
 Wells vs. Smith, 54 G-ar., 262. 
 
 If the jury believe, from the evidence, that during the season 
 of 18 — the plaintiff was the owner of a farm, and raised the 
 property in question thereon, and that the husband assisted in 
 raising the same, still if the jury further believe, from the evi- 
 dence, that in what the husband did he was simply acting as the 
 agent of his wife, then tlie property so raised would be the 
 j)roperty of the wife and not of the husband. 
 
 The court instructs the jury, that 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, 79 111., 437. 
 
 The court instructs the jury, that the fact, if proved, that a 
 married woman allows her husband to have a general use and 
 control over her personal property, such use and control bein^-
 
 21 G INSTRUCTIONS 
 
 of a clianu'tcr consistent witli their eoiiiinoii interests, and the 
 proper enjoyment of it hy hoth. will not uuikc it liable for his 
 debts, or entitle his administrator to claim the same. Primmer 
 vs. Clahaugh, 78 111., !)4. 
 
 The jnry are instructed, that a husband may act as the agent of 
 Ids wife in the management and control of her personal property, 
 either generally or specially, and if the property is in fact the 
 property of the wife, then such conti-ol and management does 
 not alter the title to the property or rendei" it lial)le 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 the fact, if proved, that her husl)and did control and 
 manage it, will not make it liable for his debts. Brownwell vs. 
 Dixon, ;)7 111., li>T. 
 
 The jurv are instructed, that in this state, when a married 
 woman has money, 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 
 colle(^t the rents, or invest her money, or change the character 
 of her investments, if authorized by her, without subjecting her 
 property to the payment of his debts. Wortman vs. Price, 47 
 111., '22. 
 
 When Liable for Repairs on House. — And, in this case, if the jury 
 believe, from the evidence, that the defendant employed the 
 plaintiff to perform the labor, or made a contract with him to 
 furnish the material for tin; improvement of the house in ques- 
 tion, and that at the time she did so she was in the possession of 
 the property, and then claimed and represented to the plaintiff 
 that she was the owner of it; and, further, that the plaintiff 
 believed such representations, and, relying upon them, after- 
 wards 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 puri)oses of this suit she must be regarded as the 
 
 owner of the property. 
 
 [See Estoppel.]
 
 IN CIVIL ACTIONS. 217 
 
 ( Husband 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 creditors cannot reach 
 it, and the money in question, if the jury believe, from the evi- 
 dence, that it was realized from the sale of such property, will 
 be hers. Lincoln vs. MoLaughlin, T-i 111., 11. 
 
 When Proceeds of her Farm Belong to Husband. — The court in- 
 structs the jury, that although they may believe, from the evi- 
 dence, that the farm on which the wheat in dispute was grown, 
 was owued by the plaintiff, 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 thereon, 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, that her husband was 
 allowed by her to exercise full and complete authority 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 husband 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 his supervision, and by 
 the exertions of himself, the men in his emiDloy, and his minor 
 son or sons. 
 
 The court instructs the jury, that if a married woman places 
 her money or property in the hands of her husband, for the 
 purpose of enabling him to carry on a general business, under 
 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 hus- 
 band's debts. Patton vs. Gates, 67 111., 101; Wilson vs. 
 Loomis. 55 111., 352.
 
 218 • INSTRUCTIONS 
 
 Tluit when the liusband, 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 fai-m, with her consent, for 
 the common benefit of the family. And the proceeds of his 
 toil upon such land are as mnch his property as though he had 
 occupied the land as a tenant, and had rented from some other 
 person. 
 
 Wliiit >'ot Separate Estate as to Creditors of Hiisbiuid. — 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, from all the evidence in tliQ case, the jury believe that 
 there was a collusive arrangement or understanding between the 
 plaintiff and her husband, that the said business should be car- 
 ried 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 business was carried on in the name of the plain- 
 tiff, under such arrangement, by her husband, for his use and 
 benelit, then such conduct on the part of the }daintiff was 
 fraudulent and unlawful, as against the creditors of the hus- 
 band, and the jury should find that the property belonged to the 
 husband. 
 
 The jury are instructed, that although they may believe, from 
 the evidence, that the plaintiff furnished the funds with which 
 the said goods were purchased, and said business carried on. at 
 the time said prope/ty was taken; still, if the jury fui-ther be- 
 lieve, from the evidence, that the funds so furnished by the 
 plaintiff, were placed in the hands of her husband for the pur- 
 pose of enabling him to carry on said business, for his use and 
 benefit, and that he was the sole manager thereof, and that his 
 skill and labor were devoted to (tarrying on said business, with- 
 out any agreement or arrangement as to his salary or compensa- 
 tion, then the jury are instructed, that the entire capital used 'in 
 euid trade or business, together with the increase thereof, cannot
 
 IN CIVIL ACTIONS. 219 
 
 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 de- 
 fendants. 
 
 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 plaintiff; still, if the jury also believe, from 
 the evidence, that, with plaintiff's knowledge and consent, the 
 use of her name in carrying on said business 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 prejudice of his creditors, 
 then the jury are instructed, that such conduct, on the part of 
 the plaintiff, was fraudulent as to such creditors, and the verdict 
 of the jury should be for the defendant. 
 
 The court instructs the jnry, 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 pui-pose of ena- 
 bling 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 enterprise, to- 
 gether with the increase, will not constitute the separate estate 
 of the wife, but they will be liable for the debts of the husband. 
 Rohinson vs. Breems, 90 111., 351. 
 
 If the jury believe, from the evidence, that the j^roperty in 
 question really belonged to the defendant in the execution, but 
 was claimed and called the property of his wife, for the purpose 
 of covering up said goods, and keeping them from the creditors 
 of her husband, then the jury should find for the defendant. 
 Broivnwell vs. Dixon^ 37 111., 197. 
 
 If the jury believe, from the evidence, that before and at the 
 time tha/t the property in question was taken by the officer, it 
 was in the possession of the husband of the plaintiff, and under 
 his exclusive control, then tlie jury are instructed, that the fact, 
 if proved, that the plaintiff received the property from her
 
 220 INSTRUCTIONS 
 
 father tit the time of her inarriage, or tliat it was bought with 
 money received from her father's estate, is not alone sufficient 
 to entitle her to liold the property against the creditors of her 
 husband; the jury must further believe, from the evidence, that 
 
 she so received the property {or rnoney) since the day of^ 
 
 etc. 
 
 Wife may Give Property to her Husband. — The (^ourt instructs the 
 jury, that although they may believe, from the evidence, that 
 the notes or the money with which the property in question was 
 bought, was given to Mrs. dr., and was originally hers, still, if 
 the jury further believe, from the evidence, that Mrs. G. after- 
 wards gave the said notes or money to lier 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, 
 Mathout any nnderstanding that the property should be hers, 
 then the property became the property of the husband, as fai- 
 as his creditors are concerned, and was liable to the executions 
 against him. 
 
 Husband Entitled to Earnings of Minor Children. — The court in- 
 structs tlie jury, tiiat the father is entitled to all the earnings of 
 his minor children until they l)ecome 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. 
 
 Work and Labor by Married Women— Illinois. — The court instructs 
 the jury, tliat a married wonuin has the right to sue for and re- 
 cover for her personal labor, performed for jiersons other than 
 her husband, the same as if she were unmarried ; provided, the 
 work is done under a contract, expressed or implied, made with 
 her and not with her husband. 
 
 The jury are further instructed, that where a married woman 
 performs work and labor for a person, not her husband, under 
 a contract, expressed or implied, 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 her husband in such a case, 
 without her authority or consent, will be no defense to an action 
 brought by her to recover such wages.
 
 IN CIVIL ACTIONS. 221 
 
 If the jury believe, from the evidence, that the phxiiitiff 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 husl)and has been 
 paid for the same; if they further believe, from the evidence, 
 that such payment was made without her consent, and the bur- 
 den of proving such consent is on the defendant. 
 
 The jury are further instructed, that they luive no right to pre- 
 sume 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 husband and 
 wife existing between tliem, 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 act- 
 ually performed the services, for which this suit is brought, for 
 the defendant, and that at that time she had no knowledo-e 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. 
 
 The court instructs the jury, that 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. 
 
 The jury are further instructed, that if a husband contracts 
 with a person, at a fixed price, for the services of himself and 
 M'ife, and the wife, under such contract, knowingly labors with her 
 husband to carry out this contract, then she cannot sue for and 
 recover for services so rendered. 
 
 If the jury believe, from the evidence, that the husband of 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, performed the services 
 for which this suit is brought, then such a contract would be the 
 contract of the husband, and the plaintiff cannot recover for 
 jjuch services.
 
 222 INSTRUCTI0N8 
 
 Although tlie jnrv may believe, from the evidence, that tlie 
 ]>huiitiff |H'rftinii(Ml tlu; services in (jucstion, iiiidcr a contracr 
 made by herself, still, if the jury further believe, from the evi- 
 dence, 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 purjioses as 
 if made to herself, and she cannot recover in this suit. 
 
 MEASURE OF DAMAGES. 
 
 Death from Negligent Act. — If the jury should find, from the 
 evidence, that the defendant is guilty of the wrongful act, neg- 
 lect, or default, as charged in the plaintiffs declaration, andtliat 
 the same resulted in the death of A., then the plaintiff is entitled 
 to recover in this action for the benefit of the {loidow and next 
 of Jdn of stick deceased) such damages as the jury may deem, 
 from the evidence and proofs, a fair and just compensation there- 
 for, having reference only to the pecuniary injuries resulting 
 from such death, to such widow and next of kin, not ex(;eeding 
 the amount claimed in the declaration. Cooley on Torts, 27o, 
 C, B. & Q. Ed. Co. vs. Payne, adm., 59 111., 534; Raffertyys,. 
 SucJcman, 40 la., 195. 
 
 If the jury find, from the evidence, under the instruction of 
 the court, that the defendant is guilty of the wrongful act, neg- 
 lect, or default, cliargcd in the declaration in this suit, and that 
 the same resulted in the death of the deceased, and that tlu^ 
 plaintiff is entitled to a verdict, tlien the plaintiff is entitled to 
 recover, for the benefit of the widow and next of kin, such an 
 amount as damages as the jui-y l»elieve, 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. Pai/iM, 59 111., 584. 
 
 The jury are instructed, that in estimating the pecuniary in- 
 jury which the widow and children of the deceased liave sus- 
 tained by his death, if the jury believe, from the evidence, that 
 they have sustained any injury, for which the defendant is lial>le 
 as explained iu these instructions, then the jury have a right to
 
 IN CIVIL ACTIONS. 
 
 223 
 
 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. /. C. Rd. Co. vs. Welden, 52 111., 290; 
 Tilley vs. //. R. Rd. Co., 29 N. 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 
 this suit; and in case the jury find the issues for the plaintiff, in 
 assessing the damages which the plaintiff is entitled to recover, 
 the jury should disregard all testimony, and statements of the 
 counsel, as to the pecuniary circumstances of the widow and 
 children. 
 
 If the jury 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 the jury should find 
 the issues for the plaintiff, then they are instructed, in the assess- 
 ment of damages, to disregard all the testimony in tlie case as to 
 such ill-health. /. C. Rd. Co. vs. BacJies, 55 111., 379. 
 
 In this case, if the jury find for the plaintiff, they can only 
 allow such damages as will make good the pecuniary loss sus- 
 tained 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. The 
 jury cannot award exemplary or vindictive damages; they must 
 ascertain, from the evidence, the pecuniary loss sustained in 
 dollars and cents, as nearly as they can approximate thereto, and 
 make that good. Kansas PacifiG Ry. Co. vs. Cutter, 19 Kan., 
 83; BlaJie vs. Midland, etc., Rd. Co., 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 the amount of such 
 loss upon such facts in proof as tend to show the extent of the
 
 2'24: INSTRUCTIONS 
 
 ptH-uiiiarv loss sustained, takiiii;- into coiisidcnition tlie age of tlie 
 deceased, and all such other evidence as may afford them the 
 means of making the estimate. Cltt/ of Chicago vs. JIaJor, 18 
 III, 349. 
 
 Death from Intoxication— Suit by Widow. — If the jury find, from 
 the evidence, under the instructions of the court, that the defend- 
 ants, or either of tliem, are guilty, as charged in the detdai-ation^ 
 and that the plaintiff has suffered actual damages, then it will be 
 the duty of the jui-y to assess the amount of such actual damages; 
 and if the jury further believe, from the evidence, that there 
 were any wilful, wanton and aggravating circumstances attending 
 the sale of said intoxicating liquors, then the jury may, in addi- 
 tion to such actual damages, find such further exemplary dam- 
 ages as they shall deem proper, not to exceed in amount the sum 
 
 of s , demanded in the declaration. 
 
 [See Part I., Sec. 20.] 
 
 The court instructs the jury, that in a suit l)y a wife for injury 
 to her means of supjiort, caused by selling liquor to her husband, 
 she cannot recover exemplary damages, unless the jury find, from 
 the evidence, that she has sustained actual damages. Graham 
 vs. Fill ford, 93 111., 590; Gilmore vs. Mathews, 07 Me., 517. 
 
 That in estimating the actual damages which the plaintiif has 
 sustained, the jury should not take into considei-atioii any nioi-ti- 
 fication to her feelings, or mental suffering on her part; in esti- 
 mating the actual damage, the jury can only consider the pecu- 
 niary loss, if any, which she has sustained, as sliown by the 
 evidence. Brantigan\^. White, 73 111., r)!*)!. 
 
 In case the jury find the defendants guilty, then, in estimating 
 the amount of actual damages which the plaintiff has sustained, 
 if any, the jury sliould not take into account the anguish or ]iain 
 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 wliich they may 
 have sustained by the death of their father. 
 
 Exemplary Damages. — Altliough tlie jiu-y may, in this class of 
 cases, give exemplai-y damages if they find the defi-ndant guilty,
 
 IN CIVIL ACTIONS. 225 
 
 and f iirtlier find, from the evidence, that tlie plaintiff has sustained 
 any actual damages; yet the jury cannot give any damages by 
 Avay of punishment to the defendant, unless they believe, from 
 the evidence, that the plaintiff has sustained some actual pecuniary 
 damages ; nor should they give exemplary damages, unless they 
 find, from the evidence, some circumstances of aggravation in 
 connection with the conduct of the defendants {or some of them) 
 calling for such damages. Bates vs. Davis, 76 111., 222 ; Meidel 
 vs. Anthis, 71 111., 241. 
 
 Personal Injury — 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 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 proved, and also any permanent 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., 32 la., 324; 
 HoXbrooh et al. vs. The U. & S. Rd, Co., 2 Kern., 23G; 
 Steamer N. W. vs. King, 16 How., 472; Buss et ux. vs. Steam- 
 hoatWar Eagle, 14 In., 363. 
 
 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 take into consideration not only the loss, 
 expenses and immediate damage arising from the injuries re- 
 ceived at the time of the accident, but also the permanent loss 
 and damage, if any is proved, arising from any disability result- 
 ing to the plaintiff from the injury in question, which renders 
 him less capable of attending to his business than he would 
 have been if the injury had not been received. 
 
 The jury are instructed, that if they find the defendant guilty, 
 under the testimony and instructions of the court, then in assess- 
 ing the plaintiff's damages, the jury may take into consideration 
 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 
 
 15
 
 226 INSTKLCTIOXS 
 
 believe, from the evidence, -will affect or impair his future 
 ahilitv to attend to his ordinary business the same as if the 
 iiijui-N- couiplaiiUMl (if liad not o(H-ni-rcd. 111. Cent. Rd. Co. vs. 
 Reed, 37 III, 48-1; Morris vs. C. B. c& Q. Ry. Co., 45 la., 21). 
 
 If the jury believe, from the evidence, that the defendant has 
 been iiijured in health of body or strength of limb, so that his 
 abilitv to liilior and attend to his affairs, and generally pursue 
 the course of life lie miglit otherwise have done, as well since as 
 before the accident; and if the jury further believe, from the 
 evidence, that such injui-ies were inflicted upon him through 
 the nefi-lisence or carelessness of defendant's servants or em- 
 ployes, as charged in the declaration, and that the plaintiff was 
 at the time exercising all reasonable care and caution to avoid 
 such injuries, then the jury may assess such damages as will 
 recompense to the plaintiff all the loss he may have sustained, 
 as a necessary result of such injuries, as shown by the evidence. 
 Indianapolis vs. Gaston, 58 Ind., 224. 
 
 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 proper for the jury to consider the 
 eifect of the injury in future upon the plaintiff's health, if they 
 believe, from the evidence, that his future health will be affe(*ted 
 by the injury in question; and also the use of his liand and liis 
 ahility to attend to his affairs generally, in pursuing his ordinary 
 ti-ade or calling, if the evidence shows that these will be affected 
 iu the future, and also the bodily pain and suffering, the neces- 
 sary 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, cait be 
 treated as the necessary result of the injury complained of. 
 III. Cent. Rd. Co. vs. Reed, 37 111., 4S4; ]V/ialen vs. St. Louis, 
 etc., Rd. Co., GO Mo., 323. 
 
 If the jury believe, from the evidence, under the instruction 
 of the court, that the plaintiff is entitled to recover, then in 
 fixiniT the damaires whicli lie ouirlit to recovci", tlic iurv should 
 take into consideration all the cnnnimstances surrounding the 
 case, so far as these ai-e shown by the evidcn(-e, 8U(;h as the 
 circumstances attending the injury, the loss of time of the
 
 IN CIVIL ACTIONS, 227 
 
 plaintiff, if any, occasioned by the injury, the pain he has suf- 
 fered, if any, the money he lias expended, if any, to be cured 
 of such injury, the business he was engaged in, if any, at the 
 time he was injured, and the extent and dnration of the injury, 
 and give the phiintiff such damages as the jury believe, from 
 the evidence, he has sustained. Sedg. on Meas, of Damages, 
 618; C. R. L cj6 P. Rd. Co. vs. Otto, 52 111., 416; Little vs. 
 Tingle, 26 Ind., 168. 
 
 Exemplary Damages — In Tort Generjilly. — The jury are instructed, 
 that in actions of this kind, if the jury find the defendant guilty, 
 under the evidence, and instructions of the court ; and if they 
 further find, from the evidence, that the injury complained of 
 was inflicted wilfully or maliciously, and that the plaintiff has 
 sustained any actual damage thereby, then the jury, in assessing 
 damages, are not limited to mere compensation for the actual 
 damage sustained, but they may give him a further snm by way 
 of exemplary or vindictive damages, as a protection to the 
 plaintiff, and as a salutary example to others, to deter them f i-om 
 offending in like manner. Pike vs. Pilling, 48 Me., 539; 
 3fo Williams vs. Bragg, 3 Wis., 424; Pibble vs. Morris, 26 
 Conn., 416; Ousleg vs. Hardin, 23 Ilk, 403. 
 
 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 have been shown, by the evidence — the pain and suffering 
 endured by him, if any, in consequence of such injuries, his loss 
 of time, and the costs of medical attendance, if such loss of time 
 and costs have been proved, and award such damages as the jury 
 may think proper and right, in view of all the facts and circum- 
 stances proved on the trial. 
 
 Exemplary Damages in Assault. — The jury are further instructed, 
 that if, under the evidence, and the instruction of the court, 
 they find the defendants, or any of them, guilty of the assault 
 and battery, and that such assault and battery was unj)rovoked 
 by the plaintiff, and was maliciously, wilfully and wantonly
 
 228 INSTRUCTIONS 
 
 coniniitted on the plaintiff, and that the phiiutiff was seriously 
 injured and damaged thereby, then the jurv in lixiiii:; the amount 
 of the plaintiff's damages, are not conlined to the actual damage 
 proved, but they may give in addition thereto such exemplary 
 damages, or smart money, as, in th€ir judgment, will be just and 
 proper, as a punishment to the defendant, in view of all the facts 
 and circumstances proved on the trial. 
 
 That the defendant, without provocation, assaulted and beat 
 the plaintiff, as charged in the decdaration, and that such assault 
 was a malicious, wanton and aggravated one; and if the jury fur- 
 ther believe, from the evidence, that justice and the public good 
 require it, then the law is, that the jury are not confined in their 
 verdict to the actual damages proven, but they may give exem- 
 plary damages, not only to compensate the plaintiff, but to 
 punish the defendant, and to deter others from the commission 
 of like offenses. 
 
 Aggravation of Damages. — That in an action of assault and bat- 
 tery, the insult and indignity inflicted upon a person, by giving 
 him a blow with anger, rudeness or insolence, constitute an ele- 
 ment of damages. And in this case, if the jury believe, from 
 the evidence, that the defendant committed an assault upon the 
 idaintiff, as charged in the declaration, then the jury, in assess- 
 ing damages, may consider, as an aggravation of the wrong, the 
 mental suifering and mortification of feeling of the plaintiff, 
 arising from the insult and indiijnitv of the defendant's blow. 
 
 Mitigation of Damages 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 con- 
 sidered by the jury in mitigation of damages, if it appears, from 
 the evidence, that tliey were used, and were of sudi a cliaractcr 
 as would naturally tend to excite tlie angry passions of men, and 
 were spoken so recently before the assault complained of as that 
 the hot blood and passion whidi they were calculated to excite had 
 not had time to cool. TJrrall vs. KnapiK 17 la., 4(;8; FuUerton 
 vs. Frt;T?VZ-, 3 Blackf., 211>. 
 
 Exemplary Damages Not Allowed, Wlien. — Though tlic jury should 
 believe, from the evidence, that the defendants, or some of them,
 
 IN CIVIL ACTIONS. 229 
 
 committed the trespasses complained of, still if the jury farther 
 believe, from the evidence, that such defendant or defendants 
 believed that in so doing they were only asserting what they 
 deemed to be a legal right, and did not act oppressively, wan- 
 tonly, or maliciously, then the jury should only assess such sum 
 as damages as they believe, from the evidence, the plaintiff has 
 actually sustained. 
 
 That 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 charged, 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 intoxica- 
 tion 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. 
 
 Landlord and Tenant — Premises not Occupied— No Rent Paid. — The 
 
 court instructs the jury, that 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 premises in controversy, 
 then the measure of damages will be the difference between the 
 rent agreed to be paid for the use of the land and the real value 
 of the use of the land, as shown by the evidence; 
 
 The court further instructs the jury, that the rent agreed to 
 be paid for the use of the land, as fixed in the lease, is presumed 
 to be the true value of the use of said premises, unless the evi- 
 dence shows it to be otherwise; and the agreed price must be 
 taken 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. 
 
 That the measure of damages, in a case of this kind, is the 
 difference between the price agreed to be paid for the use of the
 
 2o0 INSTIiUCTIOXS 
 
 ])iHMiiises, not occupied, und the actual rental value of the same 
 prcuiisi's, it' tlicv had been <)ccui)ied, 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 nomiiuil damages, and such special damage as the jury 
 believe, from the evidence, the plaintiff has sustained by reason 
 of, etc. 
 
 Suit on Replevin IJoiid. — The jury are instructed, that although 
 
 this action, is in form an action of debt, for the sum of 8 , the 
 
 penalty in the bond, the action is, in fact, an action to recover 
 for the damages alleged to have been sustained 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 
 the 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- 
 
 aijes; the debt will be S , the penalty mentioned in the bond, 
 
 wliilo the damaiics will hi' sucji 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 con- 
 dition 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 duty of 
 the jury to assess the amcMuit of such damages; and if the jury 
 further believe, from the evidence, that the said T. M. !>. was 
 sheriff of this county at the time the said property was taken, 
 and that the said sheriff was then holding the said property un- 
 der, and by virtue of, a writ of attachment in favor of the other 
 defendants in the replevin suit, for an indebtedness claimed to 
 be due to tiicm by one J. F., and that a judgnu'iit was after- 
 wards rendered in said attachment suit for the sum of (four 
 thousand) dollars, in favor of the plaintiffs in that suit, then the 
 measure of damages in this case is the said sum of {four thoustind) 
 dollars, and interest thereon, at the rate of six per cent, per an-
 
 IN CIVIL ACTIONS. 231 
 
 num. since tlie date of said judgment, and the further sum of 
 {tweiitij) doUars, defendant's costs in the said replevin suit; pro- 
 vided, however, that if the jury believe, from the evidence, that 
 the vahie of the property taken by the said J. E., in the replevin 
 suit, was worth less than the amount of said judgment, interest, 
 and costs, then the measure of damages in this suit will be the 
 value of such property, as shown by the evidence, and no more. 
 Sedg. on the Meas. of Dam., 585; Jennings \'^. Johnson, 17 
 Ohio, 154; Nolle vs. Ejyjyerly, Ind., 468; Ilayden vs. Aji- 
 derson^ 17 la., 158. 
 
 The court instructs the jury, that if you find the issues for the 
 plaintiif, and believe, from 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 esti- 
 mating the amount of damages in this suit, you should ascertain 
 the amount remaining unpaid upon the judgment in the case of 
 J. G. vs. the said E. L. W., for principal, interest and costs, as 
 shown by the evidence, calculating interest at the rate of six per 
 cent, per animm, from the date of said judgment; 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 re- 
 maining 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 the sheriff, with interest thereon at the 
 rate of six per cent, per annum. 
 
 Libel. — If the jury believe, from the evidence, that the libel 
 was published by the defendant, as charged in the declaration, 
 then the plaintiff is entitled to recover. The amount of the re- 
 covery 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 tlie character 
 of the charge, the general rejmtation of the plaintiff at the time 
 of the publication complained of, whether the defendants had an
 
 232 INSTKUCTIONS 
 
 (.}»l><)i-tiniity to retract tlic charge, whether it was maliciously uiade 
 and pci'sihted in, or whether made as puhlic jounialists, and tor 
 laudaMc juii'ikiscs and without malice, and all the facets proved iu 
 the case, having a rel'erence to this subject, Sheahan et al. vs. 
 Collim, 20 111., 325. 
 
 If the jury tin<l the issues for the ])laintiff, and believe, from 
 the evidence, that the publication wtvs made nuilieiously or 
 wantonly, and under circumstances evincing a disregard of the 
 rio-lits of others, then, in making up their verdict, they may take 
 into consideration the circumstances of the defendant as to wealth 
 and possession of property, so far as these appear, from the evi- 
 dence, and they may give a verdict for such a sum as, from the 
 evidence, they think the ])laintiff ought to receive, and the de- 
 fendant fmght to pay, under all the circumstances of the case. 
 Hill, on Rem. for Torts, 450; Hunt vs. Bennett, 19 X. Y., 173; 
 Knifjht vs. Foster, 39 N. II., 570; Humphries vs. Parker, 52 
 Me., 502. 
 
 Malpractice. — If the jury find, under the evidence, and tlie in- 
 structions of the court, that the plaintiff is entitled to re<-over, 
 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 compensaticm for the pain 
 and suffering endured by the plaintiff in consccpience <»f 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 suifering was endured in consequence of the 
 fault of the defendant. 
 
 Breach of Marriajre fontract. — The jury are instructed, that in 
 assessing damages for the brcsach of a marriage contract, the 
 general rule is, that the jury may take into consideration all the 
 injnrv, wliii-h tlu; evidence sIkjws, 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 character 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
 
 IN CIVIL ACTIONS. 233 
 
 these circumstances should be considered by the jury in esti- 
 mating the injuries sustained by lier. Sedg. on Meas. of Dam., 
 428 ; Burnett vs. Simpkins, 24 IlL, 264. 
 
 If the jury believe, from the evidence, that the defendant 
 entered into a marriage contract with the plaintifP, and also that 
 he did seduce her, then they have a right to determine, from all 
 the facts and circumstances, whether such seduction was conse- 
 quent ujion the promise of marriage, and if they so find, then 
 the, seduction may be taken by the jury in aggravation 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 further, that the defendant, under such prom- 
 ise of marriage, seduced the plaintiif and begot her with child, 
 then that circumstance may be taken into account by the jury 
 in estimating the plaintiff's damages. Tiibhs vs. YanKleek^ 12 
 111., 446. 
 
 If the jury believe, from the evidence, that the defendant en- 
 tered into a marriage contract with the plaintiff, within five years 
 before the commencement of this suit, and that under the pre- 
 tense of such promise of marriage, lie 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 estimating 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 preponderance 
 of evidence, and that such attempt was not made in good faith, 
 or was 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 the plaintiff. 
 Sedg. on Meas. of Dam., 427; Fidler vs. McKinleij, 21 111., 308; 
 Davis vs. Slagle, 27 Mo., 600; Denslow vs. Van Horn, 16 la., 
 476.
 
 234 INSTRUCTIONS 
 
 Tlie jury are instructed, that should they find iov the plaintiff, 
 tliey 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 consideraticm the length of time the 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 amount of sucli damages at such a sum as 
 they think proper, under the evidence and the instruction of the 
 court. Sedg. on Meas. of Dam,, 235, 420; Kniffea vs. Mc Con- 
 nelly 30 N. Y., 285 ; King vs. Kersey, 2 Ind., 402 ; Roper vs. Clay, 
 IS Mo., 383. 
 
 Fraud and Deceit. — The jury are instructed, that in an action 
 founded in fraud and deceit, if the jury find the defendant 
 guilty, the aniounlr 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 deliberate, wilful and 
 wanton, the jury are at liberty to give exemplary or punative 
 damages, in addition to the actual damages sustained. JfcAvoy 
 vs. ]Vr!;//,f, 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 between 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 re[)resented by the defendant, at tlie time of the 
 sale. Sedg. on Meas. of Dam., 338; Thompson vs. Burgey, 3G 
 Penn., 403; Page vs. Parker, 40 N. II., 47. 
 
 Trespass and Trover. — The court instructs the jury, tliat wliore 
 property, taken l)y a trespasser, has been appropriated 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 property has 
 been legally seized and held under legal process, either in favor 
 of a stranger or in favor of the trespasser himself. Bates vs. 
 Courtw right, 3G 111., 518.
 
 IN CIVIL ACTIONS. 235 
 
 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. forui as charged in the 
 declaration, then the measure of the phaintiff's damages is the 
 value of the property at the tiuie of the conversion, as shown 
 by a preponderance of the evidence, with six per cent, interest 
 thereon, from the time of such conversion. Sedg. on Meas. 
 Dam., 547; Ten ne ;/ vi^. State Bank, etc., ^iO ^\s., la'2; Yates 
 vs. Mullen, 24 Ind., 277; Polk vs. Allen, 19 Mo., 4G7; Catting 
 vs. Fanning, 2 la., 580; Repley vs. Davis, 15 Mich., 75. 
 
 Work and Labor— Part Performance If the jury, etc., that the 
 
 plaintiff worked for the defendant, as claimed, and that such 
 work was done under a special contract, as to the price, and that 
 the plaintiff went on and performed, under that contract, a part 
 of the work so contracted for, and that the defendant accepted 
 the work done, and if the jury find, from the evidence, under 
 the instructions of the court, that the plaintiff is entitled to 
 recover, then the contract price must govern the measure of com- 
 pensation to which the plaintiff will be entitled for the work 
 actually done, whether such price be more or less than the work 
 was actually worth. 
 
 Contract to Deliver— Part Performance — If the jury, etc., that the 
 plaintiff agreed to furnish defendant a certain {quantity of 
 stone), at a given price per {cord), and that he furnished a part 
 only of the {stone), but not the whole quantity contracted for, 
 and that the defendant accepted and appropriated to his own 
 use the {stone) thus furnished, 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 price of the {stone) 
 actually delivered, whether such price be more or less than they 
 were reasonably worth. McClelland vs. Snider, 18 111., 58. 
 
 Refusal to Deliver Personal Property. — In this case, 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 differ- 
 ence between the contract price and the market price, at the
 
 236 INSTRUCTIONS 
 
 place of delivery, at the time of the alleged breach of contract 
 complained of. And in arriving at the amount of damages, the 
 jury will estimate the (juantity of {hops) which has not been 
 delivered, and give the difference between the market price and 
 the contract price on so much of the contract as the jury be- 
 lieve, from the evidence, remains to be performed. Sedg. or. 
 Meas. Dam., 295; Carney vs. JSfcichemj,'!-^ 111., 2(j;i; Bunh \>. 
 Holmes, 53 Me., 417; Cannon vs. Folsom, 2 la., 101; Crosby 
 vs. WatJdns, 12 Cal., 85; Zehner vs. Dale, 25 Ind., -1:33. 
 
 The jury are further instructed, that upon a breach of a con- 
 tract to deliver articles of personal property, at a particular 
 place, within a certain time, at a certain price, and when the 
 property has been paid for, and subsequently delivered, l)Ut not 
 deli\-ered 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 j)laintiff's declara- 
 tion, for the sale of {thirty thousand bric/i), at the price of s — 
 (j)er thoiisa7i(l), to be delivered on demand, and that the plain- 
 tiff demanded said brick, as claimed by him, and that he was 
 then ready and willing to pay for the same, 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 diff(!reiice between such market price and the price agreed 
 upon. /Slduter vs. Wallbaum, 45 111., 43. 
 
 Property Bought for Re-Sale If, under the evidence in the 
 
 case, and the instructions of the court, you find for the plain- 
 tiffs, then, upon the question of damages, the court instructs 
 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 Lahe City), and that they had sold the same as of the 
 quality aforesaid, and that at the time of the sale to the plain- 
 tiffs the defendants had knowledge of such contract of re-sale,
 
 IN CIVIL ACTIONS. 237 
 
 and knew that the plaintiffs purchased said hams to fill said 
 contract of re-sale, and that the hams were shipped to the pur- 
 chaser at {Salt Lake) before the plaintiffs had notice of their qual- 
 ity, and that upon their arrival at {Scdt Lake) the said purchasers 
 refused to receive or pay for the same, for the reason, that they 
 w^ere 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, such sum of money as you may believe, from the evi- 
 dence, 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 (o pay 
 out on account of the transportation of said hams to {Salt Lake 
 City.) Thome vs. McVeagh, 75 111., 81. 
 
 Refusal to Accept Personal Property. — The jury are instructed, 
 that the rule of law is, that when a purchaser of personal prop- 
 erty whicli, by the terms of the purchase, is to be delivered at a 
 specified time and place, and at a stipulated 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, de- 
 clined, then in an action by the vendor against the vendee for 
 refusing to comply with contract, the proper rule of damages is, 
 the difference between the contract price and the current price 
 at the time and place for delivery, as fixed by the contract of 
 sale and purchase. MoN'aught vs. Dodson, 49 111., 446. 
 
 Slander— Words Actionable, per se. — If, from the evidence, 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 damages ought to be given to 
 the plaintiff, and find their verdict accordingly. 1 Hill, on 
 Torts, 408, 
 
 The jury are further instructed, that if, from the evidence, 
 under the instruction of the court, they find the defendant 
 guilty, then, in fixing the amount of the plaintiff's damages, 
 they may take into consideration the mental suffering produced 
 by the utterance of the slanderous words, if they believe, from
 
 238 IX ST RUCTIONS 
 
 the evidence, that such suffering ha> been endured by the phain- 
 tiff; and the present and probable future injury, if any, to 
 plaintiff's character, which the uttering of the words was cal- 
 culated to inflict. Fry vs. Bennett, 4 Duer., 247; True vs. 
 Fluiiiley, 30 Me., 4G0; Svnft vs. Diehermann, 31 Conn., 285. 
 
 Dainii^es Presumed, AVlieu. — 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 cal- 
 culated 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 declaration, then they are 
 to determine, from all the facts and circumstances proved, what 
 damages ought to be given; and the jury are not confined to the 
 mere pecuniary loss or injury sustained. Mental suffering, in- 
 jury to reputation or character, if proved, are proper elements of 
 damage. Baker vs. Yoimg, 44 111., 42. 
 
 Pecuniary Ch-ciiinstances of Defendant. — The jury are instructed, 
 that if they find the defendant guilty, then, in fixing the amount 
 of plaintiffs damages, they may take into consideration, in con- 
 nection M'ith 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 defendant has reiterated the slander 
 on different occasions to diff-erent persons. JTarhison vs. Schoak, 
 41111,141; ILcm2)hries y&. Parker, 52 Me., 502; Leiois vs. 
 Chapman, 19 Barb., X. Y., 252. 
 
 Words Spoken in Heat of Passion. — If the jury believe, from tlie 
 evidence, that any of the slandennis words, charged in tlic 
 declaration, were spoken by the defendant, in the heat of pas- 
 sion, in a quarrel or altercation, provoked by the plaintiff, then 
 the jury have a right to take this fact into consideration in fixing 
 the amount of damages. 
 
 If the jury believe, from the evidence, that the slanderous 
 words were spoken in the lieat of passion, provoked by ])1aintiff, 
 and were sjjoken in the presence of persons well acipuiinted
 
 IN CIVIL ACTIONS. 239 
 
 with the pLahitlff, and were not circuhxtecl by defendant after- 
 wards; and farther, that the pLiintiff 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. 
 
 Drunkenness in ^litigation. — The court instructs the jury, that if 
 you find, from the 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 exer- 
 cise of his mental faculties, this fact will be proper to be con- 
 sidered by the jury in determining whether the defendant was 
 prompted in sjDeakiug the words by malice, in fact, and whether 
 he ought to be charged with exemplary or punative damages. 
 Howell vs. Hoioell, 10 Ired., N. C, 84; Gates vs. Meredith, 7 
 Ind., 440. 
 
 Plea Must be Filed in Good Faith. — If the jury believe, from the 
 evidence, and from the facts and circumstances proved on the 
 trial, that when the defendant filed his plea of justification, he 
 had no reasonable hope or expectation of proving the truth of 
 it, then if the jury believe, from the evidence, that the defend- 
 ant is guilty of the slander charged in the declaration, they may, 
 in fixing the amount of the plaintiff's damages, regard the filing 
 of the plea as an aggravation of the original slander. Tlarhison 
 vs. Schook, 41 111., 141; Swails vs. Butcher, 2 Ind., 84. 
 
 The court instructs the jury, tliat although they should find, 
 from the evidence, that the defendant has not sustained his plea 
 of justification, still, the fact that he has filed such plea should 
 not of itself be regarded bv the jury as an afforravation of the 
 original offense, if they believe, 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. 
 
 Exemplary Damages may be Given in Slander, Wlien. — If the jury, 
 under the evidence, and the instructions of the court, find the 
 defendant guilty in this case, in assessing the plaintiff's dam- 
 ages, they are not confined to such damages as will simply com- 
 pensate the plaintiff for such injuries as the evidence shows she
 
 240 INSTRUCTIONS 
 
 lias received, by reason of the speaking and iiul.lisliing of the 
 defamatory words, charged in the declaration, bnt they may, in 
 addition thereto, assess against the defendant, by way of pnnish- 
 nient to him, and as an example to others, snch damages as the 
 jury, in their sound judgment, under all the evidence in the 
 case, believe the defendant ought to pay, not exceeding, in any 
 event, the amount of damages claimed by the plaintiff in the 
 declaration; provided, tiie jury believe, from the evidence, that 
 the defamatory words were spoken maliciously or wantonly by 
 the defendant. 
 
 If the jury find the defendant guilty, they should then deter- 
 mine, from all the facts and circumstances proved, what dam- 
 ages 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 com- 
 pensate the plaintiff for the stain inllicted upon her character; 
 ]irovided, 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 the evidence, that the defendant is 
 guilty "of uttering the slanderous words charged in the declara- 
 tion, then they may take into consideration the pecuniary cir- 
 cumstances of the defendant, and his position and influence in 
 society, so far as those matters have been shown, by the evi- 
 dence, in estimating the amount of damages which the i)laintiff 
 ought to recover. Ilosley vs. Brooks, 20 111., 115. 
 [See Part I., Sec. 20.] 
 
 Though the jury may believe, from the evidence, that the 
 defendant was guilty of speaking the slanderous words charged 
 in the declaration, still, if the jury find, from the evidoice, that 
 the words were spoken without actual malice on the part of the 
 defendant, though under circmnstances showing a want of cau- 
 ticni and a proper respect for the rights of the {ilaintiff, an<l that 
 the plaintiff has suffered no spiM-ial daninge from the speaking 
 of the words, then the jury should only give c-onipensatory dam- 
 ages, 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. Armstrony vs. Pier- 
 son, 8 Clarke, la., 21).
 
 IN CIVIL ACTIONS. 241 
 
 Common Carriers-Loss of Baggage. — The court instructs 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 shown, by the evidence, to 
 have been lost by the defendant, if any such loss has been shown. 
 
 Goods Lost. — The jury are instructed, that the measure of dam- 
 ao-es, in case of a failure of a common carrier to deliver goods 
 according to contract, and which are lost, is then- market or 
 actual value at the time when, and the place where, they should 
 have been delivered; and such value is purely a question of fact 
 to be fixed by the jury, from the evidence in the case. C. c& JV. 
 W. R<j. Co. vs. DicUnsoii, 74 III, 249. 
 
 Damages, How Determined. — The jury are instructed, that a 
 party suing for an injury received can only recover such dam- 
 afi-es as naturally flow from, and are the immediate result of, 
 the act complained of. The jury should be governed solely by 
 the evidence introduced before them, and they have no right to 
 indulge in conjectures and speculations not supported by the 
 evidence. Indianapolis B. & W. Rd. Co. vs. Birney, 71 111., 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 the amount of 
 such damages, it is not necessary that any witness should have 
 expressed an opinion as to the amount of such damage, but the 
 jury may, themselves, make such estimate from the facts and 
 circumstances in proof, and by considering them in connection 
 with their own knowledge, observation and experience in the 
 business affairs of life. Ottaioa Gas L. Co. vs. Graham, 28 
 111., 73. 
 
 Exemplary Damages— In Trespass. — If the jury believe, from the 
 evidence, that a trespass was committed, as charged in the decla- 
 ration, by the defendant, or his servants, by his direction, in a 
 
 wanton wilful and insulting manner, and that the plaintiff has 
 
 16
 
 242 iNSTurcTioNS 
 
 suffered any actual damage therefrom, then the jui-vare author- 
 ized to find exemi)lary damages; that is, such damages as will 
 comix'usate tlie phiintilf for the wrong done to hun, and to 
 punisli the defendant, and to furnish an example to deter others 
 from the like practices. Sedg. on Meas. Dam., 35; Cutler vs. 
 Smith, 57 111., 252. 
 
 Tlie jury are instructed, that in action of trespass to pei-sons 
 or property, when the evidence shows the trespass to have been 
 malicious and wilful, oppressive, or wantonly reckless, the jury 
 may give what are known as punitive or exemplary damages. 
 III. cO St. L. Ed. Co. vs. Cohh, 68 111., 53. 
 
 The court instructs the jury, that to justify the recovery of 
 exemplary damages for a trespass to property, it nmst be shown, 
 by the evidence, that the defendant was actuated by malice or a 
 reckless disregard of the plaintiff's rights, and when two are 
 sued, and one of them is not chargeable witli malice or reck- 
 lessness, exemplary damages cannot be recovered against both. 
 JBecIcer vs. Dupree, 75 111., 167. 
 
 Exemplary Damages Defined. — Exemplary damages mean dam- 
 ac^es given by way of punishment for the connnission of a wa-ong 
 wilfully or wantonly, or with some element of aggravation. 
 They are not the measure of the pi-ice of the property, or actual 
 danuige sustained, l)ut they are given as smart money in the way 
 of pecuniary punishment, to make an example for the pul)lic 
 good, and to teach other persons not to offend in like manner. 
 Bates vs. Davis, 76 111., 222. 
 
 MUNICIPAL CORPORATIONS— Negligence. 
 
 Liable for Unsafe ("(nidition <>f Streets, When. — Tlie court instructs 
 the jury, that the defendant corporation is l)ound by law to use 
 all reasonable care, caution and supervision to keep its streets, 
 sidewalks and bridges in a safe condition lor tra\el, in tlie or- 
 dinary modes of traveling, by night as well as by day, and if it 
 fails to do so, it is liable for injuries sustained, in conseipience 
 of such failure; provided, the party injured is himself exercising
 
 IN CIVIL ACTIONS. 243 
 
 reasonable care and caution; and the fact that the plaintiff may, 
 in some way, have contributed to the injury sustained by him, 
 will not prevent his recovery if, by ordinary care, he could not 
 have avoided the consequences to himself of the defendant's 
 negligence. Cooley on Torts, 625; Mayoi\ etc.,\&. Dodd, 58 
 Ga., 238; Centerville vs. Woods, 57 Ind., 192; Rowell vs. Will- 
 iams, 29 la., 210; St. Paul vs. Kuby, 8 Minn., 154. 
 
 If the jury believe, from the evidence, that the corporate 
 authorities of the city of S. did not exercise all reasonable care 
 and supervision over that portion of the sidewalk where 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 
 defective and unsafe; and if the jury further believe, from the 
 evidence, that the plaintiff, 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 cau- 
 tion to avoid such injury, then the defendant is liable, and the 
 jury should find for the plaintiff. 
 
 Law Imposes the Duty to Keep Streets in Reasonably Safe Condition.— 
 
 The law is, that- wliere the city charter gives the city authorities 
 power to provide for keeping the streets in repair, and to pro- 
 hibit obstructions therein, then it is the duty of the city author- 
 ities to keep the streets and sidewalks in a safe condition for 
 travel, so far as this can be done in the exercise of reasonable 
 care and prudence in that respect. Cooley on Torts, 625 ; The 
 People vs. The Mayor, etc., 63 111., 207; Prideaux v^. Mineral 
 Point, 43 Wis., 513; Mayor, etc., vs. Cooley, 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 diligence 
 and care, to presume, and to act upon the presumption, that it 
 is reasonably 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 plaintiff, while 
 passing along one of the sidewalks in said city, was injured, as 
 alleged in his declaration, and that the iniury would not have
 
 244 I N S T R I- C T I O X s 
 
 happened to liiui if the said sidewalk had been in a reasonably 
 good repair and safe condition, then the defendant is liable for 
 such injury; provided, the jury believe, from the evidence, that 
 the plaintiff was exercising reasonable care and caution to avoid 
 injury while passing over said walk; and that said city did not 
 use reasonable jcare to keep said sidewalk in safe condition. 
 
 Duty to Provide Guards and Notice. — The court instructs the jury, 
 that wliile a city has the right to construct sewers, or otlier im- 
 provements, in its streets, yet, when it causes such work to be 
 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 dan- 
 gerous. 
 
 If, in making improvements, it becomes necessary to leave 
 dangerous holes or openings in the street, or to leave piles of 
 dirt, or otlier obstructions, in the street, in such a way as to ren- 
 der 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 
 Avarn travelers of the dangerous condition of the street; and if 
 they do not do so, and persons are thereby injured, while in the 
 exercise of reasonable care and prudence themselves, the city 
 will be liable for the injuries thus sustained. 
 
 The court insti-ucts the jury, that all incorporated towns, vil- 
 lages, and cities, whether inc^orporated by special charter or under 
 general laws, have the power, and it is their duty, to keep in 
 repair the )-oads and bridges within tlicir 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 pru- 
 dence to avoid such injury, the corporation will be liable in dam- 
 ages. The President, etc., vs. Meredith, 54 111., S-i. 
 
 Street Includes Sidewalks. — The jury are instructed, that the 
 streets of a city extend to and include that portion thereof occu- 
 pied and used for sidewalks. In tlie grant by the legislature of 
 control over the streets of tlie 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 duties of keeping tlie 
 sidewalks in repair, as a part of the street. City of B. vs. Bay, 
 42 111., 503.
 
 IN CIVIL ACTIONS. 245 
 
 Accident and Negligence. — Tlie court instructs the jury, that if 
 tliey believe, from the evidence, that the phiintiff was injured 
 and sustained damage, as charged in the declaration, and that 
 such injury was the combined result of an accident, and of a de- 
 fect in the walk, and that the damage would not have been sus- 
 tained but for the defect, although the primary cause of the in- 
 jury was a pure accident, still, if the jury further believe, from 
 the evidence, that the plaintiff was guilty of no fault or negli- 
 gence, and the accident one which common and ordinary pru- 
 dence and sagacity, on the part of the plaintiff, 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. 
 
 Reasonable Care and Caution, What. — The jury are further in- ^ 
 
 structed, that reasonable care and caution required of the plaintiff, ) 
 
 as mentioned in these instructions, means that degree of care and / 
 caution which might reasonably l)e expected from an ordinarily 
 
 prudent person, under the circumstances surrounding the plaintiff ^ 
 at the time of the alleged injury. 
 
 Care Must be Proportionate to the Known Danger. — If the jury be- 
 lieve, from the evidence, that the place where the accident in 
 question occurred, was necessarily more dangerous than the 
 ordinary streets and sidewalks, and that, by the exercise of ordi- 
 nary 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 con- 
 tributed to the injur}', he cannot recover in this suit. 
 
 Slight Negligence will not Defeat Recovery. — That a traveler on a 
 public street is held to the exercise of only ordinary care. Slight 
 negligence, which is a Avant of extraordinary 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 the traveler was injured thereby, and was 
 using ordinary care to avoid the injury. Gujjin vs. The Toicii 
 of Willow, 43 Wis., 503.
 
 246 INSTRUCTIONS 
 
 Streets and Walks to be Kept Reasonably Sale. — The court iiistnicts 
 the jurv, as a matter of law, that a city is not required to have 
 its sidewalks so constructed {or lept in such condition) as to 
 secure innnunity in usin-»; tlieni; nor is it bound to employ the 
 utmost care and exertion to tlmt 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 sufficiently 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 attributable 
 solely to the slippery condition of the sidewalk, occasioned by a 
 recent fall of snow, and tliat the sole cause of the accident was 
 the temporary slipperiness of that i)art of the sidewalk caused 
 by the recent fall of snow thereon, such a condition of the side- 
 walk would not be a defect, for -which the city would be liable. 
 City of Chicago vs. McGiven, 78 111., 347. 
 
 Deg-ree of Care Reciuired. — The jury are instructed, that the de- 
 fendant is not bound to any greater degi-ee of care and diligence 
 than is suffii-ient to keep its streets and sidewalks in a reasonably 
 safe condition, and if any accident occurs when they are in such 
 reasonably safe condition, the defendant is not liable for such 
 accident. 
 
 Negligence of Driver. — The law is, that the driver of a private 
 conveyance is the agent or servant of the pei'son riding in such 
 conveyance, and if such person, while riding ahnig a public high- 
 way or street, is injured, in consequence of obstruction or delects 
 negligently permittted to remain in the street or highway, and 
 the driver is guilty of a want of ordinary care and caution, and 
 his nc-ligence materially 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. 
 
 Not Obliged to Open Streets.— Tlic court instructs the jury, that 
 cities are under no legal obligation to open up streets loi" the 
 use of the public. The legal obligation of a city to repair
 
 IN CIVIL ACTIONS. 24:7 
 
 Streets, sidewalks and bridges, within its corporate limits, only 
 relates to snch as are opened or constructed under its authority, 
 or those which its officers have assumed control over. Crai<j 
 vs. Sedalia, 63 Mo., 417; Sher. & Red. on Neg., § 127; Wilso7i 
 vs. The Mayor, etc., 1 Denis, 595; Joliet vs. Verley, 35 111., 58. 
 There is no legal obligation resting npon a city to build side- 
 walks, construct gutters, or pave streets, but when the city does 
 make these improvements for the benefit of the public, it then 
 becomes its duty to nse all reasonable care and exertions to keep 
 them in repair. City of Alton vs. Ilojje, 68 111., 167. 
 
 Do not Insure the Safety. — The jury are instructed, that a munic- 
 ipal 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 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, 64 111., 19. 
 
 Liable for Negligence of Others, When. — Although the 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 for defects in the walk; provided, the jury be- 
 lieve, from the evidence, that the w^alk was so constructed as to 
 be dangerous for ordinary travel, and that this defect was known 
 to the officers 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. Barnes vs. The Town of 
 Newton, 46 la., 567; Cooley on Torts, 626; Wendell vs. Troy, 
 39 Barb., 329; Sher. & Red. on Xeg., § 147. 
 
 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 measures of care and vigilance as will guard the 
 public against exposure to injury, so far as this can reasonably 
 be done.
 
 24:8 I N S T U U C T I O N S 
 
 I 
 
 Tlie court instructs the jun', as a matter of law. that where 
 work is done upon the streets ot" a city, there is a reasonal)U? 
 presumption that it is done hy the proper authorities of the city, 
 aiid in a suit to recover damages for an injury occasioned h\' th(^ 
 negligent manner t)f doing such work, it is not necessary, in tlie 
 first iustance, to prove that it was done hy persons employed hv 
 the citv, as this will be presumed, unless the contrary apj^ears 
 from the evidence. 
 
 And, in this case, if the jury believe, from the evidence, that 
 the injui-y complained of was caused by a dangerous {2)tle of 
 diii, or openiuj/), left iu the street in question by pei*sons em- 
 j)loyed 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 j^rove that the city 
 authorities had actual notice that such * "■ "" was left in 
 said street; provided, the jury further believe, from tlie evidence, 
 that such work was done under the supervision of the {street 
 comm.issioiier, etc). Olt;/ of Chicago vs. Bvophy^ 79 111., 277. 
 
 If tlu! jury believe, from the evidence, that the defendant let 
 out the job of filling up and grading {Main street) to other per- 
 sons, at so much per yard, the grading to be done under the 
 supervision of defendant's engineer, and that such engineer 
 went upon the ground with such other persons, and pointe(l out 
 to them where to take the soil from and where to put it, and 
 su(;h 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 woi-k by men employed by it in any other way. Nevins 
 vs. City of Peoria, 41 111., 502. 
 
 Not Liable for the Xe^Hfjoiice of Otliers, When. — The jury are 
 instructed, that when a party, wnthout the consent of the author- 
 ities of an incor[)orated town, digs oi- leaves open a dangerous 
 hole or pit in the street, and a person is thereby injured, the 
 town will not l)e liable for such injury, unless the authorities 
 have actual notice of tlie nuisance or it has remained a sufficient 
 time, so that iu the exercise of ordinary care and diligence they
 
 IN CIVIL ACTIONS. 2-1-9 
 
 ought to have had notice of the dans^erons condition of the 
 street. Fahey vs. The President, etc., 62 Ilh, 28. 
 
 The jury are instructed, that when the duty is imposed by Law 
 upon a city corporation to keep its streets in safe condition, foi- 
 use l)y the public, the duty cannot be shifted off upon a person 
 emph)yed by the city to perform it; and if an injury results 
 from the negligence of such person in the performance 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, unknown or 
 without the knowledge or consent of the city authorities, the 
 city cannot be deemed negligent until knowledge 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 placing an obstruction in a public 
 
 street, which detracts from the safety of travelers, the author 
 
 will be lield liable for an injury resulting from the act, although 
 
 other causes subsequently arising may contribute to the injury. 
 
 Weick vs. Lander, 75 111., 93. 
 
 [See Contractor's Negligence.] 
 
 BefectiTe Sidewalk— Notice Presumed, When — The court instructs the 
 iurv, tliat when the sidewalk of a city is out of repair, and re- 
 mains so for such a length of time tliat 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 authori- 
 ties of the condition of the walk will not be necessary to hold the 
 city liable for injury sustained by a person, in consequence of 
 the dangerous condition of the street, if he is himself using rea- 
 sonable care to avoid such injury. Sher. and Red., § 148; 
 Mayor vs. Shejield,4:^sd\., 189; City of Springfield \^. Doyle, 
 76 ill, 202; Schweickhardt vs. St. Louis, 2 Mo. App., 571. 
 
 The jury are instructed, that the defendant is bound to use rea- 
 sonable care and precaution, to keep and maintain its streets and
 
 250 INSTRUCTIONS 
 
 sidewalks in good and sufficient repair, to render tlicm reason- 
 ably safe, for all persons passing 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 tliat the injurv (•(tiiiplained of resulted fi-om that 
 cause, as charged in the de('laration, and that the plaintiff sus- 
 tained damage thereby, without negligence or want of care oil 
 plaintiff's part, theii he is entitled to recover in this suit. 
 
 Must Have Notice, Actual or Constructive. — If tlie jury believe, from 
 the evidence, that the sidewalk, in which the defect is alleged t(^ 
 have been, and where the plaintiff is alleged to have been in- 
 jured, was properly and safely constructed, and laid down, and 
 that prior, and up to, or about the time of the alleged injury, 
 it appeared to be in a proper and safe condition, then, if there 
 be no evidence that the defendant had actual knowledge of such 
 defect, or that the defect existed for such length of time before 
 the injury, that the defendant, if exercising proper care and 
 diligence, would have known of it, the jury should find the de- 
 fendant not guilty. SchweicJchardt vs. St. Louis, 2 Mo. 
 App., 571. 
 
 Notwithstanding the jury may believe, from the evidence, 
 that the sidewalk, at the time of the aHeged injury, was defect- 
 ive, yet this fact alone would not be sufficient evidence of neg- 
 ligence on the part of the defendant. In order to charge the 
 defendant with negligence, it must appear, from the evidence, 
 not only that the sidewalk was defective at the time of the alleged 
 injury, but it must further appear that such defect was actually 
 known to the city through some of its officers, agents, or servants, 
 or that the defect had existed for such a length of time })rior to 
 the alleged injury, that the city, if exercising ordinary diligence, 
 would or should have known of the defect. The City of Chi- 
 cAKjo vs. 3r<-Carth;/, 75 111., (!02. 
 
 A city is l)ound only to the exercise of reasonable j^rudence 
 and diligence in the construction of its sidewalks, and is not re- 
 (piired to foresee and provide against every jwssible danger or 
 accident that inav occur.
 
 IN CIVIL ACTIONS. 251 
 
 It is only required to keep its streets and sidewalks in a rea- 
 sonably safe condition, and it is not an insurer against accidents. 
 Citij of Chicago vs. Bixhy, 84 111., 82. 
 
 Injury to Adjoining Property — Clianging- Grade. — The jury are 
 instructed, that a nninicipal corporation, while acting within 
 the scope of its authority, in making excav^ations in a street, for 
 the purpose of opening it or improving it, if using reasonable care 
 and skill, is not liable to a lot owner for an injury resulting 
 therefrom to his lot or the buildings thereon. Slier, cfe Red. on 
 Neg., § 129; City of Quinoy vs. Jones, 76 111., 231; Pontiao 
 vs. Carter, 32 Mich., 161; 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. Sher. & Red. on 
 Neg., § 114; City of Pehin vs. Brenton, 76 111., 477; ^¥ei<JU' 
 man vs. Washington, 1 Black., 39 ; Madison vs. Ross, 3 Ind., 
 236; Milwaukee vs. Davis, 6 Wis., 377; Puke vs. Rome, 20 
 Ga., 635. 
 
 The jury are instructed, as a matter of law, that if a city, in 
 exercising its powder of changing the grade of its streets, fails 
 to exercise reasonable prudence and skill, it wnll be liable for all 
 damages that result from such failure. City of B. vs. Brokaw, 
 Ti III, 194. 
 
 The jury are instructed, that if the authorities of a city, in 
 altering or changing the grade of the streets, do not do the 
 work in good faith and wnth reasonable care and skill, to avoid 
 damaging the adjoining property owners, the city will be liable 
 to such owners for all damage directly resulting therefrom. 
 Roberts vs. The City of Chicago, 26 111., 249. 
 
 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 
 low^er or elevate them at will, and the owner of lots adjacent to 
 the street cannot call it to account for error in judgment, in fix- 
 ing the grade, nor recover damages for inconvenience or expense
 
 252 IXf^TKUCTION'S 
 
 incurred in adjusting their premises to the grade of the street; 
 provided, the city authorities exercise reasonable care and skill 
 in the performance of this work. 
 
 Tiiat the authorities of a city have a right to alter the grades 
 of the streets at their discretion, and if tliis is done with reason- 
 able care and skill, no liability :u-ises from their acts. Xeithc - 
 courts nor juries can incjuire whether the grade adopted is the 
 best one or not, and in this case, the only cpiestion for the jury 
 is whether, in doing the work in (piestion, the city officers acted 
 in good faith, and with i-easonable care and skill, to avoid dam- 
 age to the plaintiff's property. Lee vs. The City of Minn., 22 
 Minn., 13; Detroit vs. Beckman^Z^ Mich., 125; Cheever vs. 
 Ladd, 13 Blatchf., 258; r^^^-^vs. J/o. etc., Rd. 6'o., 6-1 Mo., 140. 
 
 A city has no more power over its streets than a private indi- 
 vidual has over his own land, and it cannot, nnder the plea of 
 public convenience, be permitted to exercise that dominion to 
 the injury of the property of any one else, in a mode that would 
 i-ender a private individual responsible in damages, without be- 
 ing resi^onsible itself. 
 
 If the jury believe, from the evidence, that the city, in im- 
 proving {Main, street) in said cit}', tixed 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 trading, and that, on or 
 aboiU, 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 building, and the 
 plaintiff therel^y damaged, then the jury should find for the 
 plaintiff's 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 il 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 con- 
 structed 1)y said city, or was permitted by said city so to remain 
 after being so built by others, after a reasonable time in whicli 
 to have changed it, then the citv cannot shield itself JVoni lia-
 
 IN CIVIL ACTIONS. 253 
 
 bility for flooding plaintiff's premises, if the evidence shows they 
 were so flooded, on account of the pitch of said street or side- 
 walk, Cltij of Aurora vs. Gillett, 56 111., 132. 
 
 Changing Water Courses. — The court instructs the jury, that if a 
 city, in exercising its power of changing the grade cif 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 afterwards 
 changing it, flows water upon a lot that it did not naturally carry 
 off, the city will be liable for damages, if any are caused thereby. 
 Ashley vs. Fort Iluron^ 35 Mich., 29(); City of B. vs. Brokaw^ 
 77 111., 194; Kohs vs. Minnea., 22 Minn., 159. 
 
 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 on to private 
 property, and if a city, in fixing the grade of a street, turns a 
 stream of water and mud on to the ground or into the cellar of 
 a citizen, or creates in his neighborhood a stagnant j^ool, likely 
 to generate disease, the city will be liable in damages the same 
 as an individual would for doing the same thing. City of 
 Aurora \s. lieed, 57 111., 29; JIayor, etG.,ys. Thompson, 2d 
 Ark., 569. 
 
 Measure of Damag-es. — If the jury believe, from the evidence, 
 that the plaintiff was injured by reason of the defendant negli- 
 gently failing to keej) its sidewalk in reasonably good repair, or 
 negligently allowing the same to remain in an unsafe condition, 
 as explained in these instructions, and without fault on his part, 
 and that he has sustained damage, then the jury have a right to 
 find for him such an amount of damages as the jury believe, 
 fi-om the evidence, will comj^ensate 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 tlie paiii 
 and suffering nndergone by him, and any permanent injury, if 
 any such has been proved. 
 
 [See Measure of Damages.]
 
 254: INSTRUCTIONS 
 
 NEGLIGENCE. GEN ERALLY. 
 
 Burden of Proof. — Tlie burden of proving negligence rests on 
 the party alleging it; and where a person cliarges negligence on 
 the part of another as a cause of action, he must jM-ove the neg- 
 ligence, by a pi-cponderance of evidence. And in this case, if 
 the jury find that the weight of the evidence is in favor of the 
 defendant, or tliat it is equally balanced, then the plaintiff can- 
 not recover, and the jury shoidd find the issues for the defend- 
 ant. Cooley on Torts, 673; IfcQailken vs. Cent., etc., Co., 50 
 Cal., 7; Q. A. d; St. L. R. R. Co. vs. Wellhoener, 72 111., GO; 
 Iloyt vs. Hudson, 27 Wis., 65G; St. Paul vs. Kuhy, 8 Minn., 
 \h^', Jeffersonmlle, etc., vs. Lyon, 55 Ind., 477; JSEurphy vs. 
 CJiicago, etc., Rd. Co., 45 la., GOl. 
 
 The court instructs the jury, that if they Ixdieve, from the 
 evidence, tliat the defendant was guilty of negligence, as charged 
 in the declaration, and that the plaintiff w^as injured thereby, 
 then, as regards the defendant's liability, it makes no difference 
 whether such negligence appears or is proved by the testimony 
 on the part of the plaintiff, or by the defendant's own witnesses. 
 Keohuh, etc., Co., vs. True, 88 111., G08. 
 
 The jury are instructed, that in determining the question of 
 negligence in this case, they 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 the jury believe, 
 fi-om the evidence, that the injury complained of w^as caused by 
 the nen-li-rence of the defendant's servants, as charged in the 
 declaration, ami without any greater want of care and skill on 
 the part of plaintiff than was reasonably to be expected . from a 
 person of ordinary care, prudence and skill in the situation in 
 which he found himself placed, tlieii the plaintiff is entitled to 
 recover. Wharton on Neg., § 304. 
 
 Ordinary and Reasonable Care Re(|nlred of Defendant. — The jury arc 
 instructed, that it is the duty of a street railroad company to 
 exercise all reasonable cai-c and prudence to carry their passen- 
 gers with safety; and if an injury to a passenger results from
 
 IN CIVIL ACTIONS. 255 
 
 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 passengers 
 own negligence does not contribute to the injury. Chicago, 
 etc., Ry. Co. vs. Yoicnrj^ 62 111., 238. 
 
 Plaintiff Must Exercise Reasonable Care and Prudence. — The jury 
 are instructed, that the plaintiff was bound to exercise 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 dangeroiis, still, if tliey further believe, from the 
 evidence, that the accident in question is attriljutable to the 
 want of ordinary care on the j)art of the plaintiff, then she can- 
 not recover in this suit, unless the jury further believe, from the 
 evidence, that the defendant was guilty of such gross negligence 
 as implies wilful or wanton injury. Cooley on Torts, 674; 
 Indiandpolis, etc., li. li. Co. vs. McClure, 26 Ind., 370; 
 Litchfield, etc., Co. vs. Taylor, 81 111., 590; Brown vs. Han- 
 nihal, etc., Rd. Co., 50 Mo., 461 ; Cooper vs. Cent. R. R. Co., 
 44 la., 134. 
 
 The court instructs the jury, that while a person walking on 
 a jTublic highway is bound to use all reasonable care and caution 
 to avoid injury, yet, he is not held to the highest j)ossible degree 
 of j)i*ecaution and prudence; and to authorize a recovery for 
 injuries negligently inflicted, it is only necessary that it appear, 
 from the evidence, that he was using reasonable care and caution. 
 
 The court instructs the jury, 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 whether 
 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 diligence. Toledo, 
 W. c& W. Rd. Co. vs. Eddy, 72 111., 138. 
 
 Master Liable for Negligence of Servant. — The master is civilly 
 liable for the tortuous acts of his servants, whether of omission 
 or commission, or whether negligent, fraudulent or deceitful.
 
 25G INSTRUCTIONS 
 
 if (lone in the course of lils employment, even thou:j;h the mas- 
 ter (lid not authorize or know of such acts, or may have for- 
 l)iJ(,len them. JJut the act must he (^lone, not only while the 
 servant is enofaofed in the service he is emploved to rendei-, hut 
 it must pertain to the i)ai-ticul:ir duties of that employment. 
 S/i//(le?' vs. IIa7inihal lid. Co., GO Mo., 413; liohinson vs. Wthb, 
 11 Bush., Ky., 464. 
 
 The court instructs the jury, that where a tort or wrong is 
 committed hy an agent or employe, in the course of his employ- 
 ment, and while pursuing the husiness of liis employer, the em- 
 ployer will be liable for the damages resulting from the wrong- 
 ful act, although it is done without the employer's knowledge 
 or consent, unless the wrongful act is a wilful departure from 
 such employment or business. 1 Add. on Torts, 81; Cooley on 
 Torts, 533; Goddard vs. Gra7id Trunk R. R. Co., 57 ke., 
 202; PUla., etc., R. R. Co. vs. Derly, 14 How., U. S., 468; 
 Bryant y%. Rich, 106 Mass., 180; Ind. R. R. Co. vs. ArtthoJiy, 
 43 Ind., 183. 
 
 The court instructs the jury, that when the em])loyer gives 
 his servant general dii-ections as to the business -which is en- 
 trusted to him to perform, then the employer is held to have 
 confided in the discretion of his seiA-ant, and is answerable feu- 
 all the acts of the servant in the performance of the duty re- 
 quired. 
 
 If the jury believe, from the evidence, that before and at the 
 time of the injury complained of, the said S. AV. was in the em- 
 ploy of the defendants, and that in the course of such employ- 
 ment, and wliile pursuing the business of liis employers, and. 
 while the plaintiff was walking in one of the pul)lic streets in 
 the city of C, the said S. W., carelessly and negligently per- 
 mitted a horse that he was riding to run against the plaintiff, 
 and thereby injui'c the plaintiff, as charged in the declaration, 
 then the jury should find the issues for the plaintiff; pn^vided, 
 the jury further find, that the ]daintiff was at the time exercis- 
 in<; all reasonable care and cautinn to avoid such injury. 
 
 Senant Msist be Acting Within Scope of Employment. — Although 
 the jury may believe, ironx the evidence, that at the time in 
 question the said A. B. was in the general employment of the
 
 IN CIVIL ACTIONS. 257 
 
 defendant as, etc., and that he committed the wrongful act com- 
 plained of in the declaration, still, if the jury further believe, 
 from the evidence, that when the said A. B. (/'an, over the plain- 
 tiff) he was not acting within the scope of his employment, or 
 in furtherance of the defendant's business, but was carrying into 
 effect some purpose of his own not connected with his employ- 
 ment, then the defendant would not be liable for such act. 
 
 If the jury 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 employment as 
 such servants, as charged in the declaration, and. without any 
 fault on the part of the plaintiff, which contributed to the injury 
 complained of, then the defendant is liable in this action. 
 
 If the jnry believe, from the evidence, that the injuries com- 
 plained of were caused by the want of reasonable care and 
 Avatchfulness 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 the injury, which could reasonably be expected 
 from a man of ordinary prudence, energy and skill, under the 
 circumstances shown by the evidence, then the defendant is 
 liable in this action. 
 
 The rule of law is, that a master is responsible for the wrong- 
 ful act of his servant, even if it be wilful, 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. 
 
 Wrongful Act of Servant. — If the jm-y believe, from the evidence, 
 that defendant's engineer, with intent to frighten plaintiff's 
 horses, unnecessarily and wantonly let off steam or blew a 
 whistle, and thereby frightened plaintiff's horses, so that they 
 ran off and injured him while he was in the exercise of all rea- 
 sonable care and prudence in that behalf, then the defendant is 
 guilty, and the jury should find for the plaintiff. Toledo^ etc.^ 
 Rd. Co. vs. Harmon^ 47 111., 29S. 
 
 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 for all of those consequences which flow naturally 
 
 17
 
 258 INSTRUCTIONS 
 
 and directly from liis act, or which niii;'ht have l)eon foreseen 
 and reasonably expected as tlie 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 
 have anticijnited as the result of his conduct. Cooley on Torts, 
 (58; AVhaiton on Xeg., § 74-78; 2 Parsons on Cont., 456; Illghy 
 vs. ILvHtt, 5 Exch., 240; 1 Add. on Torts, G; Fent vs. T. P. tfc 
 W. Ud. Co., 59 111., 349. 
 
 If the jui-y believe, from the evidence, that the defendant was 
 guilty of the negligence or carelessness charged in the declara- 
 / tion, and that the injury complained o^ was the natural con- 
 
 sequence of such negligence or carelessness, and such as might 
 have been foreseen and reasonably anticij)ated as the result of 
 such negligence or carelessness, then such carelessness or negli- 
 gence should be regarded as the approximate cause of the 
 injury. 
 
 1'he juiy are instructed, that although they may believe, from 
 the evidence, that the injury complained of was occasioned l)y 
 the acts of the defendant, still, if the jury 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 defen<hint would not be liable. 
 
 The jury are instructed, that an act is not to be deemed the 
 
 proximate cause of an injury, unless the injury was such a con- 
 
 l sequence of the act as, under the surrounding circumstances of 
 
 the case, might and ouglit to have been foreseen or anticipated 
 
 by an ordinarily reasonaljle and prudent man, as reasonably 
 
 likely to flow from the act. Iloag vs. Lahe Shore^ etc., Rd. Co., 
 
 85 Penn. St., 293. 
 
 [See Proximate Cauae.'^ 
 
 Contractor's »frli?rence. — The (^ourt instructs the jnr\', as a mat- 
 ter of law, that wlien woi-k is contracted to be done by a con- 
 tractor, the owner retaining or exercising no control over the 
 manner of doing the work, and the work is not of itself danger- 
 ous, luit only becomes so by the negligence of the contractor, 
 then the employer is not lialfle for injuries resulting from the 
 negligence of the contractor.
 
 IN CIVIL ACTIONS. 259 
 
 That when work is contracted to be done which is dangerous 
 of itself, unless guarded, and the employer makes no in-ovision 
 in his contract for its being guarded, and makes no reasonal)lc 
 effort to guard it himself, then he is negligent, and if injury 
 i-esults therefrom, he cannot escape liability, on the ground that 
 the work was done l)y a contractor. Wood ys^ Ind. S. D., 44: la., 
 27; Hale vs. Johnson, 80 111., 185. 
 
 Contributory and Gross Neglig-ence. — Although the jury may be- 
 lieve, 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 can- 
 not recover in this suit, unless the jury further find, from the 
 evidence, that the negligence of the defendant's servants was 
 malicious and wilful, or wantonly reckless, showing an utter dis- 
 re«-ard foi- the rights and property of the plaintiff {or the life 
 of the deceased), 'An^ that the negligence of the plaintiff was 
 but slight, as explained in these instructions. Cooley on Torts, 
 674; Lafayette, etc., Rd. Co. vs. Adams, 26 Ind., 76; Mulher- 
 rin vs. Delaware, etc., Rd. Co., 81 Penn. St., 366; Chicago, etc., 
 Rd. Co. vs. Donahue, 75 111., 106; Brown vs. Hannibal, etc., 
 Rd. Co., 50 Mo., 461; Cooper vs. Cent. Rd. Co., 44 la., 134; 
 Burham vs. 8t. Louis, etc., Ltd. Co., 56 Mo., 338. 
 
 That although the jury may believe, from the evidence, that 
 the defendant was guilty of negligence upon the occasion in 
 question, which contributed directly to the injury complained 
 of, yet, if they further believe, from the evidence, that the 
 plaintiff was also guilty of negligence which contributed directly 
 to the injury, then the plaintiff cannot recover in this suit, unless 
 the jury further find, from the evidence, that the conduct of 
 the defendant's servants Avas malicious and wilful, or wantonly 
 reckless. 
 
 The court instructs the jury, that if they believe, from the 
 evidence, 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
 
 2G0 INSTRUCTIONS 
 
 suit, unless the jury further fiiul, from the evidence, that the 
 injurv was caused by the wilful, intentiunul or wantonly reckless 
 acts of the defendant or its servants. 
 
 If the jury believe, from the evidence, that tlie 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 plaintiff 
 was himself guilty of slight negligence, which contributed to the 
 injury, and without which the accident would not have hap- 
 pened, still the defendant would be liable in this case; provided, 
 the jury further believe, from the evidence, that the servants of 
 the defendant saw the danger, to which the plaintiff was exposed, 
 in time to have averted it, and l)y the exercise of ordinary care 
 and prudence, could have prevented the injury. Wharton on 
 Xeg., § 301; Cooley on Torts, 075; Harlan vs. St. Louis, etc., 
 Rd. Co., 65 Mo., 22. 
 
 Note.— In Illinois, Georgia and Tennessee, it soems to be hold that 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 contributory negligence is slight. The next twelve 
 instructions are drawn with reference to this view of the law. 
 
 Contributor J Xegliireiice Slight. — The court instructs the jury, that 
 while a person is hound to use reasonable care to avoid injury, 
 yet he is not held to the higliest degree of care and prudence, of 
 which the human mind is capable; and to authorize a recovery 
 for an injury, he need not be wholly free from negligence; pro- 
 vided, his negligence is but slight, and the other party be guilty 
 of <rross nefj-liirence, as defined in these instructions. 
 
 And in this case, although the jury may believe, from the 
 evidence, that the plaintiff was guilty of some slight negligence, 
 vet if the jury further believe, from the evidence, that the 
 l>laintiff's negligence was but slight, and that the defendant's 
 sL'rvants were gnilty of gross negligence, as explained in these 
 instructions, and that the injuries complained of were caused 
 ilicrcby, then the plaintiff is entitled to recover. 
 
 The court further instructs the jury, that if they believe, from 
 the evidence, that the plaintiff was guilty of only slight negligence,
 
 IN CIVIL ACTIONS. 261 
 
 which contributed to the injury, and that the defendant {servant-^ 
 of the defendant) were w^anting in the care and prudence whicli 
 a very careless man woukl ordinarily exercise under the same cir- 
 cumstances, then the defendant was guilt}^ 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 that the negligence of the plaintiff was but 
 slight, then they should find the issues for the plaintiff. Lycom- 
 ing Ins. Co. vs. Barring er.^ 73 111., 230. 
 
 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 possible degree \y^ 
 of precaution and prudence ; and to authorize a recovery for in- 
 juries 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. 
 
 And in this case, though the jury may believe, from the evi- 
 dence, that the plaintiff was guilty of some slight negligence, 
 yet, if the jury further believe, from the evidence, that the de- 
 fendant 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, then the plaintiff is entitled to recover. 
 
 The court instructs the jury, that the question of the liability 
 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, or want of care, mani- 
 fested by both parties, as shown by the evidence. And in this 
 case, although the jury may believe, from the evidence, that the 
 plaintiff {or deceased) was not wholly without fault, yet, if they 
 further believe, from the evidence, that the defendant was guilty 
 of gross negligence, upon the occasion referred to, and that the 
 injury complained of was occasioned by such gross negligence; 
 and further, that the negligence of the plaintiff was but slight, 
 then the jury may find the defendant guilty. 
 
 The jury are instructed, that if they believe, from the evidence, 
 that upon the occasion referred to by the witness, a bell was not 
 rung nor a whistle sounded, at a distance of (80 rods) from the 
 crossing, and kept ringing or whistling until the crossing was
 
 262 INSTKUCTIONS 
 
 1-eac'hcd, and that the plaintiff was lulled into security by reason 
 of such neglect on the part of the defendant, and in attempting 
 to cross the railroad track, was struck and injured, as charged in 
 the declaration, then the plaintiff will he entitled to recover in 
 this suit, even though he was guilty of slight negligence, if the 
 jury believe, from the evidence, that his negligence was but 
 slight. Chi. A A. lid. Co. vs. Elmore, 07 111., 170. 
 
 The court instructs the jury, that to entitle the plaintiff to re- 
 cover, the jury must believe, froni the evidence, that the injury 
 complained of was occasioned by the carelessness or negligence 
 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, contributing to the injury, 
 then to entitle plaintiff to re('Over, the jury must further believe, 
 from the evidence, tliat the negligence of the defendant was gross, 
 and that of the plaintiff' was but slight; and if the jury believe 
 from the evidence, that the negligent conduct of the plaintiff 
 contributed as much, or nearly as much, to produce the injury 
 as that of the defendant, then the plaintiff cannot recover, and 
 the jui-y should iiud for the defendant. 
 
 That in an action against a railroad (jompany, to recover for 
 injuries, occasioned by the alleged negligence of the company in 
 running its train, althougli the servants of the company may have 
 'been guilty of negligence, contributing 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. 
 Chicago c5 A. Rd. Co. vs. Jacobs, 63 111., 178. 
 
 Death Caused by Neglif?ent Acts. — Tlic court instructs the jury, 
 that even if they sliould believe, from the evidence, that the 
 deceased was guilty of some negligence, upon the occasion 
 referred to, still, if they further believe, from the evidence, that 
 the servants and agents of the company were guilty of gross 
 negligence, and that the negligence of the deceased was but 
 slight, aiul, fui'ther, that the persons for whose use this suit is 
 brouglit have sustained damage in tlie death of the deceased, as 
 charged in the declaration, then the jury should find the issues 
 for the })laintiff.
 
 IN CIVIL ACTIONS. 263 
 
 The jury are instructed, that the law is, that if a railroad 
 company is guilty of gross negligence, resulting in the death of 
 a person, and such person is guilty of only slight negligence 
 contributing to the injury, such contributory negligence will not 
 of itself prevent a recovery against the company. jP,, P. cfe J. 
 Rd. Co. vs. Chamj), 75 III, 577. 
 
 The court instructs the jury, that even though they may be- 
 lieve, from the evidence, that the deceased was guilty of some 
 negligence, yet, if they further find, from the evidence, tliat the 
 negligence of the deceased was but slight, and that the negli- 
 gence of the defendant was gross ; 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 negli- 
 gence of the deceased will not prevent a recovery in this caso, 
 if the jury find, from the evidence, that all the other material 
 averments in the declaration are proved. III. Cent. Rd. Co. vs. 
 (Joddard, 72 111., 567. 
 
 Equal Negligence. — The court instructs the jury, that though 
 they may believe, from the evidence, that the defendant was 
 guilty of negligence upon the occasion in question, and that 
 such negligence contributed to the injury complained of, yet, if 
 the jury further believe, from the evidence, that the plaintiff 
 was also guilty of an equal, or nearly equal, degree of negli- 
 gence, directly contributing to the injury, and without which it 
 could not have occurred, then the jury should find the defend- 
 ant not guilty. 
 
 In this case, if the jury believe, from the evidence, that both 
 the deceased and the agents and servants of the railroad com- 
 pany were guilty of gross negligence, contributing to the injury 
 of which the deceased died, then the jury should find their ver- 
 dict for the defendant. 
 
 Injury the Result of Negligence 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 neg-lio-ence on the 
 part of another, and the accident would not have occurred but 
 for such negligence, and the danger could not have been fore- 
 seen or avoided by tl^e exercise of reasonable care and prudence,
 
 264 INSTKUCTIOXS 
 
 oil the part of the person injured, then tlie [tei'son guilty of the 
 negligence will be liable for the injury received. City of Au- 
 rora vs. Pulfer, Qio 111., 270. 
 
 The court instructs the jury, that to entitle tJie plaintiff to 
 recover in this suit, it nnist appear, from the evidence, that the 
 injurv coni[)l;uned of was occasioned by the want of attention, 
 carelessness or negligence on the part of the defendant or its 
 servants, as charged in the declaration, and was not simply the 
 result of an accident; and if the jury believe, from the evi- 
 dence, that the injury resulted from an accident which could 
 not have been foreseen or guarded against, by the exercise of 
 ordinary and reasonable care and prudence, on the part of the 
 defendant, then the plaintiff cannot recover, and the jury should 
 find for the defendant. 
 
 Wrongful and Voluntary Exposure. — The jury are instructed, that 
 if a man wrongfully gets uj)on 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 j^ersons 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. 
 
 Ordinary Care Defined. — The court instructs the jury, that ordi- 
 nary care depends upon the cir('umstances of each ])articular 
 case, and is such care as a person of ordinary ])rudeuce and skill 
 would usually exercise under the same or similar circumstances. 
 Norfolk, etc., Rd. Co. vs. Ormshij, 27 Gratt, 455. 
 
 Slij^lit Nefjlijjfcnce Doflned. — That slight negligence means the 
 absence of that degree of care and vigilance which persons of 
 extraortliuary })ru(lence and foi'csight are ac(;ustomed to use 
 under siniilar circumstances. Hammond vs. Town of, etc., 40 
 Wis., 35. 
 
 Gross Ncg'litjonce Defined. — That by the term gross negligence, 
 as used in these iii-tructioiis, is meant a wi'ongful act or omis- 
 sion, wilfully uuJ maliciously done, or o^nitted, or wantonly
 
 IN CIVIL ACTIONS. 265 
 
 reckless conduct, showing an utter disregard of the rights of 
 others. 
 
 That 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. 
 
 Collision on the Highway. — The jury are instructed, as a matter 
 of law, that the rights of footmen and horsemen, on a public 
 highway, are equal, and the law requires both parties to use all 
 reasonably prudent precautions to avoid accident 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 that at the same time the said S. W. was riding a horse on 
 the same street, in the direction of the plaintiff, and that the 
 said S. W. saw, or by the exercise of reasonable care and cau- 
 tion could have seen, the plaintiff 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 
 S. W. did not do so, but carelessly and negligently permitted 
 the horse Avhich he was riding to run against the plaintiff and 
 knock him down, and thereby injured him, as charged 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 negli- 
 gence which contributed to the injury.
 
 2G6 INSTEUCTIONS 
 
 NEGLIGENCE BY RAILROAD COMPANIES. 
 
 Duly to Funiisli Safe Macliiiu'ry, Etc. — The court instructs the 
 jury, that it is the duty (;f railroad companies to use all reason- 
 able means and efforts to furnish good and well constructed 
 machinery, adapted to the purposes of its use, of good material, 
 and of the kind that is found to be safest Avhen applied to use; 
 and while they arc not required to seek aiul apply every new 
 invention, they must a(l()[)t such as are found, l)y experience, to 
 combine the greatest safety with practical use. St. Louis, etc., 
 Rd. Co. \s.Valirius, 56 Ind., 511; Wedgeioood vs. Chicago, 
 etc., Rd. Co., 41 Wis., 478; Pittsburgh R. R. Co. vs. Nelson, 
 51 Ind., 150; Porter vs. Ilanrdhal, etc., Rd. Co., GO Mo., 160. 
 
 Liable for the Torts of their Servants, When. — Kail road com- 
 panies are responsible to passengers for the unlawful acts of 
 their servants and agents em})loyed in running their trains, when 
 such wrongful acts are committed in connection with the busi- 
 ness intrusted to them, and spring from, or grow immediatelj 
 out of, such business. Gasway vs. Atlanta, etc., Rd. Co., 58 
 Ga., 216; Bass vs. Chicago, etc., Rd. Co., 42 Wis., 654; Broion 
 vs. Ilannihal, etc., Rd. Co., ^Q Mo., 588. 
 
 The jury are instructed, tliat if the servants of a railroad 
 company, while in the discharge of their duties, pervert the 
 appliances of the company to wanton or malicious purposes, to 
 the injury of others, the company is liable for such injuries. C, 
 B. <Jb Q. Rd. Co. vs. Dickson, 63 111., 151. 
 
 Negligence, per se. — The court instructs the jury, that it is neg- 
 ligent 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 niotioii may <';»llid('; and if injury 
 results therefrom to one who is guilty of no negligence himself, 
 he will l)e entitled to recover for such injury. ,Nohle vs. Canning- 
 ham, 74 111., 51.
 
 IN CIVIL ACTIONS. 2C7 
 
 Plaintiff Must Exercise Ordinary Care. — The court instniets the 
 jury, that in an action against a raih'oad 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 injury com- 
 plained of, still, if tlie plaintiff could, by the exercise of ordinary 
 care and prudence, have avoided the injury, he cannot recover. 
 Chi. & Alton Ed. Co. vs. Jacohs, 63 III, 178. 
 
 The court instructs the jury, that to authorize a recovery 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 pai-ty employed all reasonable means 
 to foresee and prevent the injui-y, or else it must appear, from 
 the evidence, that the injury was caused by the wilful or wan- 
 ■i:only reckless acts of the servants of the company. Wharton 
 on Neg., § 300. 
 
 Right to Prescribe Rules. — The jury are instructed that a rail- 
 road comjiany has a right to require of its passengers the observ- 
 ance 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 pas- 
 senger wantonly disregards any such reasonable rule, the obliga- 
 tion to carry him farther ceases, and the C(jmpany may expel 
 him from the train at any regular station, using no more force 
 than may be necessary for that purpose. Sandford vs. Eighth 
 Ave., etc., Rd. Co., 23 N. Y., 343; /. C. Ed. Co. vs. Whitmore, 
 43 111., 420; Craioford vs. Cincinnati, etc., Ed. Co., 26 Ohio 
 St., 580; State vs. Chovin, 7 la., 204; Shelton vs. Lake Shore, 
 etc., Ed. Co., 29 Ohio St., 214. 
 
 The court instructs the jury, that whatever rules tend to the 
 comfort, order ard safety of the passengers on a railroad, the 
 companies are authorized to make and enforce; but such rules 
 must be reasonable and uniform. A rule setting apart a car for 
 the exclusive use of ladies, and gentlemen accompanied by 
 ladies, is a reasonable rule, and it may be enforced. C. & N. 
 W. Ed. Co. xs. Williams, 55 111., 185; Bass vs. Chi. cfc iY. F. 
 Ed. Co., 36 Wis., 450.
 
 2G8 INSTKUCTIONS 
 
 A railroad company has tlie lawful right to make all reason- 
 ably necessary rules for the conduct of its employes, and also of 
 its passengei'S. 
 
 And whether such rules are adecpiate to secure the safety of 
 others, and the safe managonient of its trains, is a question of 
 fact for the jury. 6'., B. d- Q. R. R. Co. vs. McLallen, 8i 111., 
 100. 
 
 Tlic court instructs the jury, that the use of grossly profane 
 and abusive, or obscene language by a passenger in a railwav 
 car, where there are ladies, is such a l)i'cach of decorum, 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. C, B. di Q. R. R. Co. vs. Griffin 
 68 111., 499. 
 
 Expelliii!,' a Person from the Cars. — The jury are instructed, that 
 if the condiu'.tor, 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 in- 
 jured, 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 
 charge of the train, ho may be ejected from the cars, prudently, 
 and in such a manner as not unnecessarily to endanger his per- 
 sonal safety; but if reasonable care and prudence are not exer- 
 cised, and the person is thereby injured, the company will be 
 liable, and it cannot excuse itself upon the ground that the 
 wi'oiig was mutual. 
 
 The jury are instructed, that to render a railroad company 
 lial)le 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 per- 
 son. If the jury believe, from the evidence, that threats to use 
 force and violence M'ere made, accoinpanie*! bv acts of such a 
 character as were reasoiuibly calculated to induce in the mind 
 of an ordinarily rational person the belief that force and vio-
 
 IN CIVIL ACTIONS. 2G0 
 
 leiice would be used, unless he leave the train, and plaintiff left 
 in consequence of such threats, then the threats would be equiv- 
 alent to the use of force and violence, as regards this siiit. 
 
 If the jury 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 
 scope of his employment, as such conductor, then such acts are 
 in law the acts of the railroad company. 
 
 Passenger Can Only be Put Off at a Station — Illinois Statute. — That 
 if a person on a railroad train or car, on reasonable demand, re- 
 fuse 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 re- 
 moved consents to be put off at some other place. 
 
 Injuries to Passengers. — The court instructs the jury, as a matter 
 of law, that railroad corporations are required to use all reason ■ 
 able 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 construction of their tracks, 
 or the approaches to their trains, and it is their duty to furnish 
 safe approaches to their passenger cars — if any of these are in- 
 secure or unsafe, when it could have been avoided, by a reason- 
 able effort and precaution, and injury results, the company will 
 be liable for damages resulting therefrom. Chi. d; A. Rd. Co. 
 y^.Wilson, 63 Ill.,l6T. 
 
 [/See Common Carriers of Passengers.] 
 
 Note. — The obligation of railroad companies to fence the track of their 
 roads, to give warning at highway 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 
 somewhat 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. 
 
 FENCING TRACK. 
 
 Statutory Provisions— Fencing the Track. — The jury are instruced, 
 tliat by the law of this state, every raili-oad corporation is required, 
 within {six m'onths) after any part of its line is open for use, to 
 erect, and thereafter maintain, fences on both sides of so much
 
 270 INSTRUCTIONS 
 
 of its road as is open for use, suitable and siitHc;ient to prevont 
 cattle, horses, sheep, hogs, or other stock, from getting on to such 
 railroad; except at the crossings 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 l)locks. 
 
 If the jury believe, from the evidence, tiiat the {Jiorae) \\\ 
 question got upon the defendant's railroad track upon the occa- 
 sion referred to, not at the crossing of a public; road or highway, 
 and not within any portion of a city, incorporated town, or vil- 
 lage, which is laid out and platted into h)ts and l)locks, and that 
 that portion of the road had been in operation six months and 
 more, before the accident in question; and if the jury further 
 believe, that the fence on the side of the track, at the point in 
 question, through the negligence of the defendant, was out of 
 repair, and was not sufficient to prevent horses getting on to such 
 railroad, and that the (Jiorse) got on to the track by reason of the 
 insufficiency of the fence, and was there injured, as charged in 
 the declaration, then it is immaterial whether the company was 
 careful or neirli"'ent in runnini; 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 negligence contributing to 
 the injury. 
 
 If the jury believe, from the evidence, that the stock in ques- 
 tion, 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 (.s-i.c months) and more, and that the 
 fence, where the stock got upon the track, was, through the 
 carelessness and neglect of the company, not then suital)le 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 insuf- 
 ficiency of the fence, and was there injufcd and damaged, with- 
 out any fault or negligence, on part of the plaintiff, thou the 
 plaintiff has a right to recover in this suit. 
 
 Company Must Exercise Reasonable Care. — The court instructs the 
 jury, as a matter of law, that when, by the use of ordinaiw care 
 and diligence, on the part of the servants of a i-uilroad company,
 
 IN CIVIL ACTIONS. 271 
 
 animals straying upon its tracks can be saved from injury, then 
 it is the duty of such servants to exercise that degree of care, 
 and a faihire to do so, if proved, renders the company liable for 
 any damages thereby sustained. T.^ P. & ^Y. Rd. Co. vs. 
 Ingraham, 58 111., 120; Wharton on Neg., § 397; Parker vs. 
 Ed. Co., 34 la., 399. 
 
 Although the jury may believe, from the evidence, that the 
 stock in question got upon the railroad track of the defendant, 
 without any negligence upon the part of the company, still, if 
 the jury further believe, from the evidence, that the person in 
 charge of the engine, by the exercise of reasonable and ordinary 
 care, and without danger to his engine and train, could have 
 avoided the injury, and did not do so, then the company would 
 be liable for such injury; provided, that the jury further believe, 
 from the evidence, that the owner of the stock, or the persons 
 having it in charge, were guilty of no negligence which con- 
 tributed to such injury. Wharton on Neg., §893; Chi. <£ iV. 
 W. Rd. Co. vs. Barrie, 55 111., 226; Fames vs. S. c& L. Rd. Co., 
 98 Mass., 560; Locke vs. St. Paul, etc., 15 Minn., 350; Reed- 
 ham \%. Railroad, 37 Cal., 409; Shephard \&. Railroad, Zb 
 N. Y., 641. 
 
 The court instructs the jury, that when a railroad company 
 fails to fence its track, as required by statute, it must see that 
 its servants so conduct its trains that injuries shall not result to 
 stock that may get upon its track, if it can be done by care and 
 caution. If the company fails to fence its track, it takes upon 
 itself the hazard, and when injury results therefrom, it must 
 respond in damage. Toledo, P. t& W. Rd. Co. vs. Lavery, 71 
 111., 522; Toledo^,W. i& W. Rd. Co. vs. MoGinnis, 71 111., 346. 
 
 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 reasona- 
 ble time, it is a neglect of duty that will render them liable for
 
 272 INSTRUCTIONS 
 
 :iii injury to stock escaping on to the road through such open- 
 ings; provided, the owner or the person having the stock in 
 charge is guilty of no negligence which contrihnted to the 
 injury. C. c6 V. W. AV. Co. vs. Harris, 54 111., 528. 
 
 If the jury 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 evening 
 hefore the acoident), and that the injury was occasioned by the 
 fence being broken down at tlie time of the accident, then neg- 
 ligence on the part of the defendant ought not to be inferred, 
 unless the jury further find, from the evidence, that the servants 
 of the company knew of the fence being down, or else that it 
 had been down for such a length of time that, in the exercise of 
 reasonable care and wat('hfulness, they ought to have known of 
 its being down, and failed to repair it within a reasonable time 
 thereafter. O. (& A. Rd. Co. vs. [Jmphenour, 09 111., lOS. 
 
 The court instructs the jury, as a matter of law, that when a 
 raili-oad is enclosed by a suitable and sufficient fence, and a 
 a casual breach occurs therein, without the knowledge or fault 
 of the company, and through such breach stock get upon the 
 track and are injured, the company is not liable, unless it has 
 had a reasonable time to discover such breach, or has been noti- 
 fied and fails to repair within a reasonable time, and before the 
 injury occurred. Sherm. & Tledfield on Xeg., 517; Robinson 
 vs. The Grand Trunk Rd. Co., 32 Mich., 322; Davis vs. Chi- 
 cago, etc., Rd. Co., 40 la., 292; Indianapolis, etc., Rd. Co. vs. 
 Truitt, 24 Ind., 162; Ind. cj& St. Louis Rd. Co. \^. Hall, 88 
 III, 308. 
 
 If the jury believe, from the evidence, that on {the day hefore 
 the injurij) the defendant had a good and sufficient fence to 
 prevent horses, cattle, shee]), hogs and other stock from getting 
 on to the track, at the point in (juestion. ami that afti'r that it 
 was blown down, or broken d(jwn by trespassers, or otherwise, 
 without the fault of the defendant, and that while the fence 
 was so down, the plaintiff's stock got through the broken fence 
 and was injured, l^eforc the defendant had a reas(.inable time in
 
 IN CIVIL ACTIONS. 273 
 
 which to repair it, then the defendant would not bo liable for 
 injuries resulting from the fence being out of repair. 
 
 If the jury believe, from the evidence, that defendant had a 
 good and sufficient fence on the side of its road, through plain- 
 tiff's farm or pasture, until shortly before the accident, and tliat 
 it was broken down by trespassers, or by unruly stock, or blown 
 down by wind, and that plaintifPs horses got through the fence 
 before defendant had reasonable time to repair it, then the jury 
 sliould find for the defendant. 
 
 The court further instructs the jury, that when a ralli'oad 
 company 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 com- 
 pany, then the company has a reasonable time in which to repair 
 the fence, and it is not responsible for any damages which may 
 ensue solely from the insufficiency of the fence until such rea- 
 sonable time has elapsed. /. C. Rd. Co. vs. Swearingeri, 47 
 III, 206. 
 
 Stock Unlawfully Rniiniu^ at Large. — The court instructs the jury, 
 that at the time in question it was unlawful to permit cattle or 
 horses 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 plaintiff cannot 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. 
 (& J. Rd. Co. vs. Champ., 75 111., 577; Indiana Rd. Co. vs. 
 Shimer, 17 Ind., 295; Jef., etc., Rd. Co. vs. Adams, 43 Ind., 
 402. 
 
 The fact that the owner of stock permits it to run at large, in 
 violation of the act prohibiting domestic animals from running 
 at large, does not relieve railroad companies from their duty to 
 fence their roads, nor from their liability for stock injured in 
 consequence of their failure to do so; and the question whether 
 the oM'ner of the stock has been guilty of contributory uegli- 
 
 18
 
 27-i INSTKUCTIONS 
 
 g;eiice in permitting them to run at large, is one of fact to be 
 determined bv 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 circum- 
 stances that the natural and j)n)bable consequence of so doing 
 was that tlie stock would go upon the railroad track and be 
 injured. Ending vs. Chicago cf? A. Rd. Co., 72 111., 25. 
 
 The court instructs the jury, that the fact, if proved, that the 
 plaintiff permitted his stock to i-un at lai'ge, in violation of the 
 law prohibiting domestic animals fi'om 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 the jury find, 
 from the evidence, under the instructions of the coui-t, that the 
 defendant was otherwise bound to do so; nor from liability for 
 stock injured in consecpience of its failure to do so, if the jury 
 find, from the evidence, under the instructions of the court, that 
 the defendant is otherwise liable therefor. 
 
 The question whether the plaintiff was guilty of conti-ibutory 
 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 negligence, in 
 permitting his stock to run at large, the jury must believe, from 
 the evidence, that he did so under such circumstances that the 
 natural and proi)able conseipience of so doing was, that the stock 
 would go u])on the railroad track and be injured. 
 
 PlaintilTs Contributory Negligence. — The jury are instructed, that 
 *v^hen a railway company fences its track, as required by statute, 
 and the fence afterwards becomes defective, an action against 
 the company for injuries to horses or cattle straying upon tlie 
 track, thi'ough such defective fence, cannot be maintained, if it 
 appears that the owner of the animals was guilty of negligence, 
 which natui-ally and directly (contributed to such injury. Jones 
 vs. The Slteboijga/i ib Fond du Lac Rd. Co., 42 Wis., 300. 
 
 Stock Escapiiisr and Running at liarire. — If the jury believe, from 
 the evidence, that the horse in (piesrioii broke out of the pasture 
 and went upon the railroad track, without any fault or neg-
 
 IN CIVIL ACTIONS. ZIO 
 
 ligeiice on the i:)art of the phxintiff, and was there killed, and 
 that such killing was the result of negligence, and of a want of 
 ordinary care and reasonable caution on the part of defendant's 
 r^ervants, then the plaintiff was not guilty of such contributory 
 negligence, as will prevent a recovery in this case. T., P. *& 
 TF. Rd. Co. vs. Johnson^ 74 111., 83. 
 
 What the PlaintifT Must ProTe to Recover. — The court instructs 
 the jury, that to entitle the plaintiff to recover, he must prove 
 every material allegation in his declaration, by 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 
 Vv^here the defendant was bound by law to fence; that is, that it 
 (was not at the crossing of a public road or highway, and was 
 not within that portion of any city, incorporated town or village, 
 which is laid out aiul 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 other stock; and if the plaintiff has failed to prove 
 cither of these things, by a prei^onderance of evidence, the jury 
 should find for the defendant. 
 
 INJURIES BY FIEE. 
 
 Prima Facie Negligence. — The court instructs the jury, that if 
 they believe, from the evidence, that the plaintiff's j^roperty was 
 injured by fire, caused by fire or sparks escaping from defend- 
 ant's locomotive, while passing along the railroad, in manner 
 and form as charged in the plaintiff's declaration, then, under 
 the laws of this state, these facts make a prima facie case of 
 negligence against the defendant ; and the burden of proof is 
 then upon the defendant to rebut this prima facie case, by 
 showing affirmatively that at the time in question the engine 
 was properly constructed and equipped with the best approved 
 appliances for preventing the escape of fire; that these aj^pli- 
 ances were all in good repair and condition, as regards the 
 escape of fire, or that all reasonable care and caution had been 
 taken to keep them in such repair and condition ; and that the en-
 
 276 
 
 I X S T K I' C T I n X R 
 
 gine was carefully and skillfully haudled, as regards the escape 
 of lire therefrom; provided, the plaintiff was guilty of no fault 
 or negligence contributing to the injury. 1\, C. t§ St. Louis 
 lid. Co. vs. Campbell, 80 111., 443 ; Kellogg vs. C. d; JV. W. lid. 
 Co., 26 Wis., 223; Kesee vs. C. & N. W., 30 la., 78; Cooleyon 
 Torts, 661. Contra— \Y\vAYton on Neg., S 868-870. 
 
 Reasonable Care Required to Prevent Spread of Fire. — It is the 
 
 duty of a railroad company to take all reasonaMe precautions to 
 prevent the spread of fire from its locouK^tives. And while 
 property owners adjoining take the risk of injuries unavoidably 
 produced by fire used for generating steam, yet, for any neg- 
 ligence in the use of it, the company will be liable. 
 
 Proof of the destruction of property, by fire escaping from a 
 locomotive, raises a prima facie case of negligence, which the 
 defendant must rebut, by showing the absence of negligence, by 
 a iirepondcrance of evidence, or that" the plaintiff's own fault or 
 negligence contributed to the injury. Coale vs. Hannibal, etc., 
 R. B. Co., 60 Mo., 227. 
 
 If the jury believe, from the evidence, that plaintiff's prop- 
 erty was injured by fire escaping from defendant's engine, while 
 j'tassing along the railroad, as charged in plaintiff's declaration, 
 then this makes a prima facie case of negligence against the 
 defendant ; and it is not enough to rebut this prima facie case 
 to show that the eno;ine was orio-inallv constructed with the best 
 and most approved appliances and improvements to prevent 
 the escape of fire. The law imposes upon the company and its 
 employes the duty of keeping a vigilant, careful watch to see 
 that tlie engine is kept in proper repair, so as not to be un- 
 necessarily dangerous to property in the vicinity of the road; 
 and unless the defendant has shown, by a prepoiulerance of 
 evidence, that the engine in question was in such good repair 
 and condition at the time of the injury complained of, or that 
 ;ill reasonable precautions had been taken to have it in such re- 
 jiair and condition, then tlie defendant has not rebutted such 
 prima ficie case made against it; provided the jury believe, 
 from the evidence, that the jtlaintiff's own fault or negligence 
 did not eontri1)Utc to the injury. C. dj A. lid. Co. vs. Quain- 
 tance, 58 111., 381).
 
 IN CIVIL ACTIONS 277 
 
 Must Provide Most Approved Apparatus to Prevent Escape of Fire.— 
 
 The jury are instructed, that raihoad companies are required by 
 law to keep constantly in use the most approved 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. cfe W. Pul. Co. vs. Pindar, 53 111., 447. 
 
 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- 
 ment 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 required to adopt and use the 
 better appliances. Toledo W. & W. Rd. Co. vs. Com., 71 111., 
 493. 
 
 The court instructs the jury, that no matter what mechanical 
 appliances were on the smoke stack, or engine, to prevent the 
 escape of fire, if the jury believe, from the evidence, that the 
 fire got out through the negligence of the defendant's engineer 
 or fireman; for in such case the defendant 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 fire escaped from defendant's engine, through 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 question 
 originated from defects in the construction of defendant's en- 
 gine, which might have been remedied or prevented by the 
 exercise of reasonable care and skill, then the defendant is liable 
 for all the damage caused by such fire, so far as the same has
 
 278 IXSTRUCTIOXS 
 
 l)oen proved, if any has been proved; ])r()\id('d, the jury further 
 l)elit've, from thi> evidenee, that tlie ])laiutiff"s own fauh or iieg- 
 ligeiiee in iid inannei- citntrihuted to the lighting or spreading of 
 such lire. 
 
 If the jurv 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; jirovided, 
 the jury fui-ther believe, from the evidence, that the plaintiffs 
 own fault or negligence in no maimer contributed, to the light- 
 ing or spreading of said fire. 
 
 Dry WtHMls and Grass. — If the jury believe, from the evidence, 
 that the defendant, negligently and carelessly, allowed dry grass, 
 weeds, and otlier combustible matei'ial, to accumulate on its 
 right of way adjoining j^laintiff's premises, so as to mmecessarily 
 increase the hazard from fire, and that by reason of such accu- 
 mulation of combustible material, the fire was kindled, and 
 communicated to the fence and field of the plaintiff; and fur- 
 ther, that the plaintiff's own negligence in no manner contrib- 
 uted to the kindling or the spreading of the fire, then the jury 
 should find for the plaintiff" tlu^ amount of damages, if any, 
 which are proved to have resulted from said fire. And in such 
 case, it makes no difference whether the best appliances to pre- 
 vent the escape of fire were or were not nsed on the engine 
 from which the fire escaped, if the jury believe, from the evi- 
 dence, that the fire did escape from defendant's engine. Flijnn 
 vs. San Francisco Rd. Co., 40 Cal., 14; Martin vs. W. U. lid. 
 Co., 23 Wis., 437; Hewey vs. Nourse, 54 Me., 256; IngersoU vs. 
 Stonl^ridge, etc., Rd. Co., 8 Allen, 438; I. C. Rd. Co. vs. ])^unn, 
 51 111., 78; Wharton on Neg., § 873. 
 
 If the jury believe, from the evidence, that any one or more 
 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 i'east)iuible and ordinary care and
 
 IN CIVIL ACTIONS. 279 
 
 skill, or from the carelessness of the defendant's servants in 
 charge of the engine, and that the plaintiff was damaged thereby 
 as charged in the declaration, and that the plaintiff was guilty 
 of no negligence which contribnted to the injury, then the jury 
 should find the issues for the plaintiff, and assess his damages at 
 such a sura as they believe, from the evidence, he has sustained 
 from such careless or negligent acts. 
 
 Degi-ee of Care Required of Land Owner. — The court instructs the 
 jury, that the owner of land adjoining a railroad track is as 
 much bound to keep his land fi-ee from unusual and dangerous 
 accumulations of combustible matter as a railroad company is 
 its right of way. And if the owner or occupant j^ermits an un- 
 usual and dangerous accumulation of dead grass, dry leaves, or 
 other combustible material to accumulate 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 fields adjoining, by 
 means of such unusual and dangerous accumulations of com- 
 bustible material, then the negligence of the owner wnll he held 
 to have contributed to the loss and injury, and in such a case 
 the owner of the property injured cannot recover for such in- 
 jury, unless the jury believe, fi'om the evidence, that his neg- 
 ligence was but slight, and the negligence of the railroad com- 
 pany was gross, as explained in these instructions. O. di iT. W. 
 vs. 8imo7ison, 25 111., 504; Ohio c& M. Rd. Co. vs. Shanefeet. 
 47 111., 497. 
 
 The court instructs the jury, as a matter of law, that it is not 
 negligence on the part of the owner, or occupant, of property 
 injured by fire escaping from an engine passing along a raili-oad, 
 that he has used the property in the manner, or permitted the same 
 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. Flynn 
 vs. San Francisco c& San Jose Rd. Co., 40 Cal., 14; Kdlogg 
 vs. C. di N. W. Rd. Co., 26 Wis., 223. 
 
 The court instructs the jury, 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 
 the jury believe, from the evidence, that the engine, etc., con-
 
 280 INSTRUCTIONS 
 
 iiected with tlio same were reasonably safe, and sucli as are 
 ordinarily used for the }»urpose for which these were intended, 
 and tlial the defendant was not otherwise iruihy of negligence 
 then the defendant would not he liahle in this ease. 
 
 Ahhough the jury may believe, from the evidence, that an 
 iin[)rovenuMit has been iua(h^ and patented upon engines similar 
 to the one in (question, or npon the apparatus used in connection 
 therewith, for preventing the escape of th-e, yet, the defendant 
 was not, on that account, bound to purchase or use such im- 
 provement; the defendant was only under obligation to use 
 reasonable and (jrdinary care in providing suitable and safe 
 machinery, and to provide such as was reasonably safe. Whar- 
 ton on Neg., § 635, 822 ; Camp Point M'f'g. Co. vs. Ballon, 
 n 111., 417. 
 
 Reasonable Care and Dilig-ence only Refiulrcd by the Company. — The 
 
 (•ourt instructs the jury, that railroad companies are only bound 
 to exercise reasonable diligence and care to prevent fire or 
 S]^arks from escaping from their locomotives, while running on 
 thcii- roads, and in keeping their track or right of way free and 
 clear from condjustible material, so as to prevent injury by tij-e 
 to farms or property along the lines of their roads; and, in this 
 connection, reasonable care and diligence is such care and dil- 
 igence as a careful, prudent and skillful man would observe, 
 under like circumstances, to prevent injury to his own property, 
 equally exposed; and if the jury believe, from the evidence, 
 that the defendant in this case, did exennse all such reason- 
 able care, diligence and skill to prevent injury, by a tire, to the 
 property of the plaintiff, that is all the law required, and the 
 defendant is not guilty of negligence. 
 
 Although the jury 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 they 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 watchiuhiess to 
 keep the same in repair; and further, that the defendant used
 
 IN CIVIL ACTIONS. 2S1 
 
 all reasonable care and diligence to prevent dry weeds and grass, 
 and other combustible materials, from accumulating on and near 
 its right of way where the iire originated, and also that defend- 
 ant's servants used all such care and diligence, both in running 
 and numaging the engine, and in keeping the track clear to 
 prevent tires, as prudent and careful men are accustomed to use 
 under like circumstances, then the jury should find the defend- 
 ant not guilty. 
 
 Though the jury may believe, from the evidence, that the 
 plaintiff's timber and grass were injured by reason of fire 
 escaj)ing from defendant's engine, as charged in the declara- 
 tion, still, the defendant is not liable therefor, if the jury 
 further believe, from the evidence, that the engine in question 
 and its appliances for preventing the escape of fire, were of 
 the most approved construction, and were then in good condi- 
 tion and repair, as regards the escape of fire; and provided, the 
 jury further 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. 
 
 HIGHWAY CROSSINGS. 
 
 Must be put in Safe Condition. — By the laws of this state, every 
 corporation owning or operating a railroad in this state, is re- 
 quired 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 duty, if the party injured is guilty 
 of no negligence contributing to such injury. Farley vs. The 
 a, R. I. etc., Rd. Co., 42 la., 234. 
 
 Reasonable €are Required at Hiarlnray Crossings. — The jury are 
 instructed, that although a person may be improperly or unlaw- 
 fully 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 
 conld have avoided the accident by the exercise of reasonable 
 and ordinary care and watchfulness. Isabelws,. Hannibal^ etc.^ 
 Rd. Co., 60 Mo., 475.
 
 :>82 INSTRUCTIONS 
 
 Signals to be Given at Road Crossings. — Tlie court instruots the 
 jurv, that, hv the hiwv. of this state, every raib-oad couipaiiy is 
 re(iuired to have a bell of at least (30) pounds wei^-ht and a steam 
 whistle placed and kept on each locomotive, and to cause the 
 same to be rung or whistled at the distance of at least {eighty) 
 rods from tlic place where the railroad crosses a public highway, 
 and to keep the same ringing or whistling until the highway is 
 reached. 
 
 If the jury believe, from tlie evidence, tluit the defendant's 
 agents or servants in charge of the engine in (piestion, omitted 
 to ring a bell or sound a whistle continuously for the distance 
 of {eighty) rods before reaching the highway crossing, such omis- 
 sion constitutes a prima facie case of negligence on the part 
 of the defendant; and if the jury further believe, from the evi- 
 dence, 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 ])rovcd. 
 
 Rights and Liabilities of Railroad Companies and Travelers are Eqnal 
 and Mntnal. — The court instructs the jury, that railroad com- 
 panies, under their charters, have the same rights to use that 
 poi'tion of the public highway over which their track passes as 
 the public have to use the same highway. Their rights and 
 those of the public, as to the use of the highway at such point 
 of intersection, are mutual and reciprocal; and, in the exercise 
 of such rights, both the company and those using the higliway 
 must have due regard for the safety of others, and use every 
 reasonable effort to avoid injury to others. Ind. i& St. Louis 
 Rd. Co. vs. Stahles, 62 III, 313 ; Sherra. & Red. on Neg., § 481 ; 
 Penn. Rd. Co. vs. Ileileman, 49 Penn. St., GO; Cleveland, etc., 
 ltd. Co. vs. Terry, 8 Ohio St., 570. 
 
 The jury are instructed, that if a railroad crosses a connnon 
 road on the same level, those traveling on either liave a legal 
 right to pass over the })oint of crossing, and to re(piire reasona-
 
 IN CIVIL ACTIONS. 2S3 
 
 ble 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 the 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 warning must be reasonable 
 and timely, so far as the circumstances will reasonably admit of. 
 C. B. i& 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 tiie plaintiff and a locomotive engine of the defendant, 
 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 serv- 
 ants of the defendant managed the locomotive and train of 
 cars attached, as charged in tlie 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 locomotive 
 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 watchfulness, have seen 
 the deceased in time to have 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 thereby; provided, the jury further 
 believe, from the evidence, that thd deceased was, at the time, 
 exercising all reasonable care and caution to avoid the injury. 
 Chi. (& Alton Ed. Co. vs. Murray, 62 111., 326. 
 
 Company Must not Suffer Tall Weeds or Brush 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
 
 284: INSTRUCTIONS 
 
 to grow upon its right of way, so as to obstruct materially the 
 view of the traek and of approaching trains by persons about 
 to cross the railroad on the crossing in question, and that but for 
 such obstruction the injury in (piestion would not have haj)- 
 pened, then the company is liable, in this case, unh^ss the jui-y 
 further believe, from the evidence, that the plaintifPs own neg- 
 ligence directly contributed to tlie injury, Wharti)n on Xeg., 
 § 386; O'Mara vs. Hudson River Rd. Co., 38 N. Y., 445; 
 Artz vs. C, etc., Rd. Co., 34 la., 153; Lid., etc., Rd. Co. vs. 
 Keeley, 23 Ind., 133; Tahor vs. Mo. V. Rd. Co., 46 Mo., 353; 
 /. dc St. Louis vs. Smith, 78 111., 112. 
 
 If the jury believe, from the evidence, that the plaintiff was 
 free from negligence, on his part, in attempting to cross the 
 track of the railroad, and that the defendant's servants in charge 
 of the engine were gnilty of negligence, either in running over 
 the crossing in question at a greater speed than was usual, and 
 than was reasonably safe to persons about to cross tlie track, or 
 in not ringing the bell or sounding the wliistle continuously for 
 the distance of {eighty) rods before reaching the crossing, and 
 that by reason of such negligence the phxintiff or his proi)erty 
 was injured, and the plaintiff thereby damaged, then the jury 
 should find the issues for the plaintiff. 
 
 Care Required of Travelers. — The jury are instructed, as a matter 
 of law, that both the plaintiff {or the deceased) and the railway 
 company had an equal right to cross the street at the point 
 where the accident happened, and that the law imposes upon 
 both parties the duty of using reasonable and prudent precau- 
 tions to avoid accident and danger; and, while it was incumbent 
 upon the railway company, in running its train on the occasion 
 referred to, to give the required signal l)y ringing the bell or 
 sounding the whistle {eighty) rods before reaching the crossing, it 
 was also the duty of the plaintiff {or deceased) to look out for 
 the a}iproach of the train, and to observe all reas()nal)le })recau- 
 tions 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 approaches 
 it as if it were dangerous. And if the jui-y Ijclieve, from the
 
 IN CIVIL ACTIONS. 235 
 
 evidence, that the plaintiff {or the decerned), as he approached 
 the raih-oad track, did not look or listen to ascertain if a train 
 was conjing, and observe all reasonable precautions to avoid 
 danger, but, on the contrary, drove directly on to the track, where 
 the accident happened, without taking any steps to ascertain if a 
 train was aj)proaching, then he was guilty of such negligence as 
 precludes a recovery in this case, unless the jury believe, from 
 the evidence, that the servants of the railway company, upon such 
 occasion, were guilty of gross negligence, as explained in these 
 instructions. Lake Shore Rd. Go. vs. Miller, 25 Mich., 274; C. 
 c6 N. W. Ed. Co. vs. Hatch, 79 111., 137; Dcvvis vs. iV". T. Cent., 
 47 N. Y., 400 ; Allyn vs. Railroad 105 Mass., 77 ; Belief ontaine 
 Rd. Co. vs. Hunter, 33 Ind., 353 ; Penn. Rd. Co. vs. Beale, 73 
 Penn. St., 504. 
 
 A person about to cross the track of a i-ailroad, upon a public 
 hicrhway, is bound to exercise all reasonable care and caution 
 to avoid injury upon the crossing. In his approach to the cross- 
 ing, it is incumbent upon him to exercise care and caution by 
 looking and listening for any train that may be approaching, so 
 as to avoid a collision; otherwise he cannot recover for an injury 
 so received, unless it appears that the injury was inflicted wilfully 
 or wantonly {or through gross negligence). Heurne vs. South- 
 ern, etc., Rd. Co., 50 Cal., 482; Toledo, etc., Rl. Co. vs. Shuck- 
 man, 50 Ind., 42; Haines vs. III. 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 upon 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 cer- 
 tainty, 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 precaution, he does so at his own 
 peril, and cannot recover i£ injury results. C, B. <& Q. Rd. Co. 
 vs. Lee, 87 111., 454. 
 
 Cai-e 3Iast be Proportioned to Known Danger. — If the jury believe, 
 from the evidence, that where the public highway crossed the
 
 286 INSTRUCTIONS 
 
 railroad track, and wliore the accident happened, wa?^ a difficult 
 place to cross with a loaded team, uiid that the said A. 15. was 
 acquainted with the place and the ditliculty of crossing-, then he 
 was hound to use reasonahle care and caution to avoid injury, 
 and that tlie degree of care and caution recjuii-ed of him was 
 such as would have l)een reas()nal)ly proportioiuite to tlie known 
 difficulty and danger in crossing. 
 
 Contributory Negligence— Gross Negligence. — The jury are in- 
 structed, that if they l)elieve from the evidence, that the said 
 A. B. was guilty of negligence, which materially (•ontril)uted to 
 the accident, by driving upon the track of the raih-oad without 
 first looking and listening to see if a train was approaching, 
 tlicn 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 negli- 
 gence means a wilful act or omission, or one which shows a 
 reckless disregard of life or property. 
 
 The court further instructs the jnry, 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 can- 
 not voluntarily close his eyes to danger, or needlessly expose 
 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 cross- 
 ing, and that either he diil not look, or else })aid no attention to 
 the train, but went upon the track while the train was approach- 
 ing, and so near to the crossin<j as to cause the accident, then lu; 
 was guilty of gross negligence, and cannot recover in tl^is suit. 
 Boc^ford, etc., Rd. Co. vs. Byam, 80 111., 528; Benton vs. 
 Cent. Rd. Co., 42 la., 192-; Cleveland, etc., Rd. Co. vs. Elliott, 
 28 Ohio St., 340; Fletcher vs. Atlantic, etc., Rd. Co., C4 Mo., 
 484. 
 
 If the jury believe, from the evidence, that the defendants 
 employes sounded the whistle, or rung the bell of the engiiH; 
 for {eifjhtij) rods before reaching the crossing, and uscij all such 
 ordinary care and diligence, as is generally used by carctul
 
 IN CIVIL ACTIONS. 287 
 
 and skillful engineers, brakemeii, and employes of railroad compa- 
 nies under like circumstances ; and if the j ury further believe, from 
 the evidence, that the said A. B. was sitting on his wagon, with 
 his back turned in the direction of the approaching train, so as 
 to preveut his seeing it, and that he could have seen the train in 
 time to avoid tlie injury if he had turned and 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 railroad crossing, to 
 have exercised that degree of care and prudence, for his per- 
 sonal 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 the approaching train in time to stop his team and 
 avoid the collision, then the plaintiff cannot recover, nnless the 
 jury find, from the evidence, that the injury was caused by the 
 wilful conduct of the person in charge of the engine, or by con- 
 duct so utterly recklesi; as to show an utter disregard for the life 
 of the deceased. (7., B. & Q. Rd. Co. vs. Lee, 68 111., 576. 
 
 Railroad Companies Only Required to Exercise Reasonable Care.— 
 
 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 keep himself out 
 of danger until they saw something in his conduct which was 
 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, he 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 remain at such safe distance, 
 nnless there was something in the circumstances calculated to 
 rebut such presumption, or until he manifested a purpose to 
 place himself in a dangerous position. Chicago, li. I. <& P. 
 Ed. Co. vs. Austin, 69 111., 426. 
 
 Negligence perse 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 j)erson to drive with a team directly on to a
 
 288 INSTKUCTICiTS 
 
 railroad crossing, without making an effort, by stopping or listen- 
 ing, or otherwise, to ascertain whether a train is approaching, or 
 whether it is safe to drive on to the track with his team. 
 
 Damage Must be the Result of the Negligence Charged. — The court in- 
 structs the jury, that tlie neglect to sound the whistle or ring the 
 bell of an engine is not of itself such negligence as will justify 
 a recovery for damages, to person or property, injured upon the 
 track. To entitle the plaintiff to recover 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. c& 
 St. L. Rd. Co. vs. Blackman, 63 111., 117. 
 
 The jury are instructed, that it is not enough to create a 
 liability for injuries cansed by a railroad train, to prove the bell 
 was not rung, or the whistle sounded. The jury must fnrther 
 believe, from the facts and circumstances proved, that the accident 
 was caused by reason of such neglect. 
 
 The jury are instructed, that although they may believe, from 
 the evidence, that the (coio) 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(//if//) rods before 
 reaching the crossing; still, if the jury further believe, from the 
 evidence, that there was no connection l)etween the failure to 
 rintr the bell, or blow the whistle, and the killing of the (coio), 
 then the jury should find the defendant not guilty, unless they 
 find, from the evidence, that the injury was occasioned by some 
 neo-lio-ence or misconduct, other than the failure to ring the bell 
 or sound the whistle. 
 
 The jury are instructed, that 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 injury com- 
 plained of, is a question of fact, to be determined by the jury, 
 from a consideration of all the evidence in the case. Illinois 
 Cent. Put. Co. vs. Benton, CO 111., 17-1. 
 
 lujury to Stock at Crossing. — The jury arc instructed, as a mat- 
 ter of law, that it would be gross negligence, in pei'sons in 
 cftarge of an engine, not U) see and observe stock if they are on
 
 IN CIVIL ACTIONS. 289 
 
 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 jnry believe, from the evidence, that 
 the plaintiff's horse was injnred by the defendant's engine, while 
 the horse was on a highway crossing, and that the persons 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 seeing 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 plaintiff was him- 
 self guilty of negligence, which contributed directly and 
 materially to the injury. C. B. t§ Q. Rd. Co. vs. Cauffman^ 
 SS'Ill., 424; Wharton on Neg., § 397; Parker vs. Railroad, 
 34 la., 399. 
 
 The court instructs the jury, that in a suit against a railroad 
 company, for injuries inllicted at a highway crossing, if it 
 appears, from the evidence, that no bell was rung, or whistle 
 sounded, for the distance of {eighty) rods before reaching the 
 crossing, and also that the company was guilty of {other negli- 
 gence), which may have caused the injury; and if it is doubtful 
 whether the injury was caused by the failure to ring the bell or 
 sound the whistle, or by {such other negligence)^ or by both com- 
 bined, 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 plaintiff himself 
 was free from fault or neo-lio-ence. 
 
 [See Part 1., Sees. 19 and 20.] 
 
 Neglect to l^ing the Bell, Etc., Prima Facie Evidence of Negligence.— 
 
 The jury are instructed, that in a suit against a railroad com- 
 pany for killing stock at a road crossing, an omission, on the 
 part of the company, to ring a bell or sound a whistle contin- 
 uously for a distance of at least {eighty) rods before reaching the 
 crossing, if proved, constitutes a prima facie case of negligence 
 against the company. Illinois Cent. Rd. Co. vs. Oillis^ 68 
 Ilk, 317. 
 
 19
 
 290 INSTRUCTIONS 
 
 Must Exercise Reasonable Care aiul Watdifiihiess to Avoiil Injuring 
 Stock. — If the jury believe, from the evidence, that the {cow} 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 eni^ine driver and fireiuan in charge of the engine, and that 
 slie was seen, or could have been seen, l)y them by the use of 
 ordinary care and attention, in time to have slackened the speed 
 of the train and avoided the accident, and that no efforts were 
 made by them in that direction, this was such negligence as 
 renders the company liable; provided, the juiy find, from the 
 evidence, that plaintiff's own negligence did not contribute to 
 the injury. 
 
 The court instructs the jury, as a matter of hiw, 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 the killing 
 should bo wantonly or wilfully done by its servants or employes. 
 RocJcford, R. I. i& St. L. Rd. Co. vs. Raffert}/, 73 III, 58. 
 
 The court instructs the juiy, that if they believe, from tl)c 
 evidence, that the pei-sons 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 tlnis avoided the injury, and did not do so, this 
 would be such negligence as would render the defendant liul)le 
 for the injury and damage sustained by the plaintiff; j^rovidod, 
 the jury believe, from the evidence, that the animals were injured, 
 and that plaintiff thereby sustained damage, in manner and form 
 as charged in the declaration; and also that plaintiffs own fault 
 or negligence did not contribute to the injury. T., P. tC' W. Rd. 
 Co., vs. Braij, 57 III., 51-L 
 
 Si)ee<l Through Cities and Villaj^es — Limited by (h'dinance. — The 
 
 jurv are instructed, that when a railroad company runs its trains 
 through a city, incoriX)rated town or village, at a greater rate of 
 speed than is permitted by the ordinance of the city, town or
 
 IN CIVIL ACTIONS. 291 
 
 village, and stock is killed by suck train while so running, the 
 killing will be presumed to have been done through th(3 neg- 
 ligence of the company. J'., P. c6 W. R. R. Co. vs. Deacon, 03 
 111., 91. 
 
 The court instructs the jury, that it is gross negligence on the 
 part of a railroad company to run its trains through a city, in- 
 corporated 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. S A. Rd. Co., vs. Becker, %i Ilk, 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, so as to be 
 able to avoid injury to persons 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, 84 Ilk, 397. 
 
 The court instructs the j ury, that, by the laws of this state, if 
 a railroad corporation, by its agents or servants, runs an engine, 
 or train of cars, in or through the limits of any incorporated 
 city, town or village, at a greater rate of speed than is per- 
 mitted by the ordinance of such city, town or village, then the 
 corporation is liable for all damage done to the person or prop- 
 erty of any person injured by such engine or train of cars. 
 
 Speed when not Limiteil by Ordmance. — 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 reason- 
 able limits, and the defendant's servants were not guilty of neg- 
 lio-ence 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 had a right to run its trains at any rate of speed 
 consistent with the safety of persons and property rightfully 
 on its cars, or right of way. 
 
 Rules as to Children — Contributory Negligence. — That a party seek- 
 ing to recover damaijes caused bv negliacence or misconduct of
 
 292 INSTRUCTIONS 
 
 another, if old ciiougli to exercise reasonable care and caution, 
 must show, by a preponderance of evidence, that his own neg- 
 ligence 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 neg- 
 lio-ence or misconduct of the persons whose care and circum- 
 spection, under the circumstances, should have been exercised, 
 did not concur with the negligence of the i)arty charged, in 
 producing the injury complained of; or else, in neither case, 
 would the complaining party be entitled to recover, unless it 
 further appears, from the evidence, that such concurring neg- 
 ligence was slight, and the negligence of the party charged was 
 gross, as explained in these instructions. Citij of Chicago vs. 
 \ajor, 18 111., 349. 
 
 Note.— Upon the question, whether the contributory negligence 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, and cases there referred to. 
 
 If the jury believe, from the evidence, that the deceased, at 
 the time of the injury, from his age, rccpiircd the care and over- 
 sight 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 reasona- 
 ble care contributed directly to the injury, then the plaintiff 
 cannot recover, unless the jury further believe, from the evi- 
 dence, that such contributory negligence was but slight, and 
 the negligence of the defendant was gross, as explained in these 
 instructions. 
 
 As pertinent to the question of reasonable care, regarding the 
 child, the jury may consider whether it appears, from the evi- 
 dence, that he was of such tender years as to need, for his per- 
 sonal safety, the care and oversight of some older person; and, 
 if the jury so find, from the evidence, then they should inquire 
 whether it appcnrs, from the evidence, that at the time of the 
 accident some older person was exercising such care and over- 
 sio-ht over the person of the cliild, as ordinarily judicious and
 
 IN CIVIL ACTIONS. 293 
 
 careful persons, having the care of children of like age, usually 
 exercise over them. Evansville^ etc., Rd. Co. vs. Wolf., 59 Ind., 89, 
 
 The jury are instructed, that the rule as to contributive negli- 
 gence of a child, is that it is required to exercise only that 
 degree of care which a person of that age would naturally and 
 ordinarily use, in the same situation and under the same cir- 
 cumstances. St. Louis., etc., Rd. Co. vs. Valirhis., 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, Yl 111., 601; Baltimore, etc., Rd. Co. vs. 
 McDonnell, 43 Md., 534; Gov. St. Rd. Co. vs. Ilanlon, 53 Ala., 
 70; Isabel 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 entrust him to the care and supervision of 
 a suitable person, the negligence of the latter cannot be imputed 
 to the parents nor to the child. Walters vs. C, R. I. & P. Rd. 
 Co., 41 la., 71. 
 
 The jury are instructed, that in determining the relative 
 degrees of care, or want of care, manifested by the parties, at 
 the time of tlie injury, the 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 caution as a person of his age and discretion would 
 naturally and ordinarily use. Kerr vs. Forgue, 54 111., 482. 
 
 If the jury believe, from the evidence, that the deceased, at 
 the time of his death, was between {five 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 attention, ran 
 the engine against the deceased and killed him, in manner and 
 form as charged in the plaintiff's declaration, then the j)laintiff 
 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 dis- 
 cretion than he did manifest at the time of the accident. 
 [See Note, p. 289.1
 
 294 ixsTurcTioxs 
 
 blaster anil Sen-ant— Master Liable to Servant, When. — The jiii-y arc 
 instructed, that a master or employer is bound to use reasonable 
 care, skill and judgment to furnish suitable machinery and im- 
 plements, properly constructed, and ordinarily skillful and trust- 
 ^V()rrlly agents or workmen; and if the employer does not use 
 such care, skill and judgment, and injury results therefrom to 
 an employe, the employer will be liable for such injury. 
 
 That while a master is not an insurer that the sei-vants he 
 employs are skillful and prudent, or that the workmanship (U* 
 materials employed in his business are absolutely proper or suita- 
 ble, 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. Sherm. tfe Red. on Neg., § 80-92; Nones 
 vs. Smith, 28 Vt., 59; Buzzell vs. Laco)iia, etc,^ Co.^ 48 Me., 
 113 ; McGatrich vs. Wason, 4 Ohio St., 5GC; Lewis vs. St. LouiSy 
 etc., Rd. Co., 59 Mo., 490; BaUer vs. Bo7)erts, 44: Cal., 187; 
 Ackerson vs. Dewiison, 117 Mass., 407; Stnckle/idorfxs,. Rosen- 
 thal, 30 AVis., 674; Richardson vs. Cooper, 88 111., 270. 
 
 The court instructs the jury, that it is the duty of a railroad 
 company, towards those who are in its employ, to have its road 
 bridges, and other appurtenances, constructed of good and sound 
 material, so far as this is reasonably practicable, having in view 
 the business done upon the road. In their construction they 
 should equal those of the average roads deling the same class of 
 business, so far as relates to the safety of its employes, and the 
 utmost care and vigilance which is reasonably practicable must 
 be bestowed by the company to keep them in safe condition. 
 
 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 adopt such rules and regulations for running its trains a^^ will 
 avoid injury to its employes, so far as this can reasonably 1)0 
 done; and having adopted such rules, to use all reas()nal)le 
 efforts to conform to them, or the company will bo responsible 
 for conserpiences resulting from a departure from them. Chi- 
 cago, etc., Rd. Co. vs. Taylor, GO 111., 4G1.
 
 IN CIVIL ACTIONS. 295 
 
 A railroad company 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. It is 
 not, however, bound to the 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, that a railroad company, as re- 
 gards its employes, must use all ordinary care and supervision 
 to keep its roadway in a good and safe condition ; and if its agents, 
 charged with the duty of inspecting and repairing its track, 
 have notice of defects in it, or by reasonable care and diligence 
 could have learned them, and omit to make repairs, in conse- 
 quence 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 part of the company as the law requires, and the 
 company would be liable for such injuries. Loclte vs. Sioux 
 Citfj, etc., Ed. Co., 46 la., 109; Lake Shore, etc., Ed. Co. vs. 
 Fhzpati'lclc, 31 Ohio St., 479. 
 
 The court instructs the jury, that a railroad company is bound 
 to use all reasonable care and caution to provide suitable and 
 safe material and skillful workmanship 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 the injury thus sustained. 
 
 The jury are further instructed, that a railroad company must 
 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 unnecessary risk shall be incurred by any 
 of its servants in the discharge of their duties; and if the com- 
 pany does not do so, and an injury happens to one of its servants, 
 by reason of such neglect, the company will be liable for the 
 injury thus sustained, provided the person injured is using 
 reasonable care and caution to avoid the injury. 
 
 The court instructs the jury, that it is a duty the law 
 imposes upon railroad companies that they shall do everything
 
 296 INSTRUCTIONS 
 
 tliiit reasonably (;an 1)C doiu^ to fiii'iiisli safe (^ars to its employes, 
 to l)c' ust'd l)y them in workiiiii; on the railroad, and it is not a 
 dnty that can be delegated to its olHeers and agents, so as to avoid 
 liability on the part of the company. 
 
 And in this case, if the jni-y believe, from the evidence, that 
 the company, through the negligence and want of reasonalde 
 care of its servants and agents, neglected and failed to furnish a 
 safe car upon the occasion in cpicstion, l>ut did, tln-ough negli- 
 gence 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 using 
 ordinary care, and in the discharge of his duty, was injured {or 
 killed), then the jury should find the defendant guilty; provided, 
 they further believe, from the evidence, that the i)laintiff {or the 
 deceased) did not know of sucli 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. 
 
 Servant Does Not Take (lie Risk <»f Daiiijers Not Incident to the Business. 
 
 — The (;ourt instructs the jury, that whore a servant is injuixMl 
 by something not incident to his employment, but by a tempo- 
 rary 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 employer, on account of 
 sucli 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 thereby, then the servant will 
 be entitled to recover for such injury, if he is himself without 
 fault contributing to such injury. AVharton on Neg., § 541); 
 FairhanJcs vs. Ilaentzsche, 73 111., 236. 
 
 Servant Not Bound to Inquire, Etc. — The jury are instructed, that 
 an employe of a railroad company, assisting in running its 
 trains, is not bound to know or in(|uirc whether the road has 
 been safely and iiroperly constructed. 
 
 There is an implied undertaking on the part of the company, 
 with its employes, that all tliat can reasonably be done to I'ender 
 the road safe, has been done. C. cfc iV^. W. Rd. Co. vs. Stocet 
 45 111., l'J7.
 
 IN CIVIL ACTIONS. 297 
 
 Negligence of the Company in Employing Servant. — The jury are in- 
 structed, as a matter of law, that if a servant of a railroad com- 
 pany, while liimself using reasonable care and caution, to avoid 
 injury, be injured through the incompetency and unskillfulness 
 of a fellow servant, or in consequence of defects in the 
 machinery or track, and the jury believe, from the evidence, 
 that the company was guilty of a want of ordinary 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, tlie company will be liable in damages, which result from 
 such negligence, if any such damage is proved. 
 
 Reasonable Care Only Required For SJifety of Employes. — As respects 
 the duty of a master or employer towards a servant 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 imposes on the master, or 
 employer, only the obligation to use reasonable and ordinary 
 care, skill and diligence, in procuring and furnishing Suitable 
 and safe machinery. Wharton on Neg., § 205 ; Wi'lgltt vs. The 
 iV: Y. Cent. Ed. Co., 25 K Y., 562; Cooley on Torts, 557; 
 Ladd vs. Ifeio Bedford, etc., Rd. Co., 119, Mass., 412; Indian- 
 apolis, etc., lid. Co. vs. Love, 10 Ind., 554; Fort Wayne, etc., 
 vs. Gildersleeve, 33 Mich., 137; Camp Point, etc., Co. vs. 
 BaUou, 71 111., 417. 
 
 The court instructs the jury, that no person, or corporation, is 
 responsible for injuries to an employe, occasioned by the care- 
 lessness, negligence, or unskillfulness of a fellow-servant, 
 engaged in the same line of service ; provided, the employer has 
 taken proper care and caution to engage proper servants to per- 
 form the duties assigned to them. Nor is the employer liable 
 for injuries thus sustained, if the person injured was, while en- 
 gaged 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 service 
 of another, he undertakes, as between himself and his employer, 
 to run all the ordinary risks incident to such service ; and this 
 includes the risk of occasional carelessness, negligence, or un-
 
 298 INSTRUCTIONS 
 
 skill f'iilii(s> (Ml the p.art of his fellow-servants engaged in the 
 same line of duty and service; provided, the employer has exer- 
 cised reasonable care and caution to engage competent and careful 
 persons to discharge the duties assigned to them. 
 
 Kiiiploye Assimies all Ordinary Risks. — The juiy aic instructed, 
 tliat where a person enters into the service of a railroad com- 
 pany, lie thereby nndertiikes to run all tlic ordinary risks 
 incident to the employment, including his own negligence or 
 nnskillfulness, and that of his fellow-servants, who are engaged 
 in the same line of duty, provided the (;onipany has taken 
 reasonable care and precaution to engage competent servants to 
 discharge the duties assigned to them. 7'., IK <i; W. Rd. Co. 
 vs. DurMn, 76 111., 395. 
 
 The jury are instructed, that a servant, when he engages in a 
 particular employment, is presumed to do so with a knowledge 
 of, and a taking of the risks of its ordinaiy hazards, whether 
 from the carelessness of fellow-servants in the same line of em- 
 ployment, or from latent defects in the machinery and appli- 
 ances used in the business, (^r the ordinary dangers in the use of 
 the same. 
 
 If the jnry believe, from the evidence, that the plaintiff (oy 
 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 sucli employe; and if the jury 
 further believe, from the evidence, that such injury was 
 occasioned either bv his own nej^-liijence, 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 gnilty of 
 any lack of care or pi-udcnce in selecting or retaining such 
 fellow-servants, to discliaige the duties assigned to them. 
 
 The jury are instructed, that where an employment is 
 attended with danger, a servant engaging in it assumes the haz- 
 ard of the ordinary perils which are incident to it; and if he 
 I'eceives an injui-y from an accident, which is an oi-dinary })eril 
 of the service undertak-en hy him, lie cannot recover damages 
 for such injury. T., W. cb W. lid. Co. vs. Black, 88 111., 112.
 
 IN CIVIL ACTIONS. 299 
 
 Servant Having Knowledge of Defects. — The jury are furtlier in- 
 structed, as a matter of law, that an employe of a railroad 
 company cannot recover from the comj)any for an injury 
 suffered, in the course of the business about which he is 
 employed, from defective machinery used therein, or from the 
 dangei'ous condition of the track, after he has knowledge of 
 such defect, or dangerous condition, and continues his work 
 without objection. C. c6 A. Rd. Co. vs. Manroe, 85 111., 25; 
 Fort Wayne, etc., Rd. Co. vs. Gildersleeve, 33 Mich., 133; 
 Johnson vs. Western, etc., Rd. Oo., 55 Ga., 133; Way vs. III. 
 Cent. Rd. Co., 40 la., 341. 
 
 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 
 machinery which he uses is in repair, so far as this can be do7ie 
 by the exercise of such care and prudence as would be exercised 
 by a prudent and careful man, engaged in the s^tme 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 negli- 
 gence on his part, and the 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. 
 
 The jury are instructed, that if a servant discovers that 
 machinery, used in the line of his employment, 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. Cooper, 88 111., 270. 
 
 Servant must use Reasonable Care and Caution. — It is the duty of 
 the servants of the company to use all reasonable care and dil- 
 igence to see that the machinery used by them in the perform- 
 ance of their duties, is in fit condition for use, and report the 
 defects, if any, to the company, and if they do not do so, it will 
 be negligence on their part. C. cfi iV^ W. Rd. Co. vs. Jackson, 
 55 111., 492. 
 
 The jury are instructed, that although machinery furnished 
 by a railroad company, for the use of its employes, may be un-
 
 300 INSTRUCTIONS 
 
 sale, 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. T., W. c5 IF- 
 Bd. Co. vs. Aslibury, 84 III., 429. 
 
 Neglicrence of Fellow-Servant. — The jury are instructed, that tlie 
 rule of law, that an action will not lie by a servant against his 
 master or employer, for an injury sustained through the neg- 
 ligence 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. 
 
 That while it is true that a common employer is not respon- 
 sible to a servant for an injury caused by the negligence of his 
 fellow-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 consecpiences resulting from a de- 
 parture therefrom. Chicago & iH. ^Y. Rd. Co. vs. Taylor, 09 
 III, 401. 
 
 The jury are instructed, that the master does not warrant the 
 competency of his servants to the other servants. The extent of 
 the master's undertaking is, that he will exercise reasonable care 
 in the selection of an employe, and if his incompetency is dis- 
 covered, will dismiss him from service. The master will be 
 lialile, where the injury is imputable to his negligence, in the 
 selection of the servant, or in retaining him after his incom- 
 petency is known. Coluriibus, C. ct' I. Cent. lid. Co. vs. T/'oesch, 
 68 lU., 545. 
 
 Fellow-Serrants Defliied. — That when the employment of a per- 
 son working for a railroad company is in a different department 
 of labor from other servants, and when he is not associated with
 
 IN CIVIL ACTIONS. 
 
 301 
 
 such other servants in the performance of their respective du- 
 ties, but is wholly separated and disconnected from them, in the 
 performance of his duties, then the railroad company is liable 
 for the negligence of such other servant, if proven, and it results 
 in injury to the person so employed, without his fault. 
 
 If the jury believe, from the evidence, that at the time of the 
 accident complained of, the plaintiff was in the employ of the 
 defendant, as brakeman on one of its freight 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 defendant's 
 cars, and that there were other persons in the employ of the 
 company whose duty it was to examine the cars, and see that 
 the brakes were in good repair and safe condition, then the 
 court instructs the jury, as a matter of law, that the plaintiff 
 and such other persons were not fellow-servants engaged in the 
 same grade or line of service, within the meaning of the law. 
 
 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 plaintiff and en- 
 gineer were fellow-servants, engaged in the same grade or line 
 of service, within the meaning of the law, and the defendant, if 
 otherwise without fault, would not be liable for such injury. 
 Valtez vs. 0. c& If. Rd. Co., 85 III, 500. 
 
 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 this being an 
 affirmative fact, it devolves upon the company to show an ob- 
 servance of the duty when sued by a servant for an injury 
 received when in its service, and negligence is shown. Sherm. 
 & Eed. on IN'eg., § 93.
 
 303 INSTRUCTIONS 
 
 NEGOTIABLE INSTRUMENTS. 
 
 Presumptions in Fsivor of the Holder. — Tlio court instructs the 
 jury, that the possession of a note, indorsed in Idank, unuceora- 
 panied by any dechiration or other evidence in regai'd to it, is 
 j^i'hiia fiU'ie evidence that the hohler is tlie owner of it; that he 
 took it for vahie befoi-e it became due, and in the reguhir course 
 of business. 1 Pars, on Notes and Bills, 255; Pettee vs. Prouf, 
 3 Gray, 502; Warren vs. Gilman, 15 Me., TO; Dugan vs. U. S., 
 3 Wheat., 172; J\^ell>/ vs. Ford, 4 la., 140; Goodman vs. Sim- 
 onds, 20 How., 343; Cook vs. Helms, 5 Wis., 107; Farwell vs. 
 Mijers, 30 111., 510; Stoddard 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. 
 
 That when a note is indorsed without date, the presumption 
 of law is, in the al)sence of proof to the contrary, that it was 
 indorsed before it became due. 
 
 That when the assignment of a promissory note is without 
 date, the law raises a ju-esumption that the transfer was made 
 before the maturity of the note, and to rebut this presumption 
 the burden of proof is upon the person alleging that the note 
 was assigned after maturity. Richards vs. Betzer, 53 111., 4G0. 
 
 Presumption can only be Overcome by Proof. — That a person rpies- 
 tioning the 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 n(^te, or that it was not made for value, or 
 that the transaction M'as for some fraudulent purpose; or that 
 the assignee took the note with notice of the defense interposed 
 by the defendant. 1 Pars, on X. & B., 255; Cook vs. Helms, 
 5 Wis., 107; Bepuy vs. Schuyler, 45 111., 306. 
 
 The court instructs the jury, that fhe note introduced in evi- 
 dence is sufficient prima, facie evidence to entitle the plaintiif 
 to recover the full amount thereof, principal and interest, 
 accordiuir to the terms of the iiote, less the credits indorsed 
 thereon.
 
 IN CIVIL ACTIONS. 803 
 
 If the jury believe, from the evidence, that the note in question 
 was assigned and indorsed by the payee thereof , to tlie phxintiff; 
 and if the jury 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 thereto, or that it was so assigned without con- 
 sideration, then the law will presume that it was indorsed to 
 plaintiff before it was due; that he paid a valuable considera- 
 tion therefor, and that he had no notice of any defense to the 
 said note. 
 
 lunoceat Parcliaser— Taken as Security. — Tlie court instructs the 
 jury, that the indorsee of a promissory note before its maturity, 
 taking it as security for a preexisting debt, in the ordinary 
 course of business, and without any express agreement, 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 Parsons on N". tfe 
 B., 218; Bowman vs. Millison, 58 111., 36; Carlisle vs. Wlshart, 
 11 Ohio, 172; Oatwaite vs. Porter, 13 Mich., 533; Stevens vs. 
 Campbell, 13 Wis., 375. Contra — Stalker vs. McDonald, 6 
 IliU, 93; Cook vs. Helms, 5 Wis., 107. 
 
 Note Taken in Payment or Part Payment, Etc. — If the jury believe, 
 from the evidence, that before the alleged transfer of the note, 
 the said A. B. i^payee) was indebted to the plaintiff, and that the 
 said note was assigned to the 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 purchaser 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. 
 
 Assignee With Notice from an Assignee Without Notice. — The court 
 instructs the jury, that if a note is assigned before maturity, for 
 value, to a honaji'le 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 condition he held them. A 
 defense to the note having been once cut off by its transfer to
 
 304: INSTRUCTIONS 
 
 an innocent holder, will not be revived by a subsequent assign- 
 ment to a person with notice of such defense. Woodioorth vs. 
 Iluntoon, 40 111., Voi. 
 
 The law is, that the holder, for value, of a negotiable note, 
 mav recover on tlie note, th(^ui;-h 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. 
 Rileij vs. Shawacher, 50 Ind., 592. 
 
 Indorsement in IJlank. — That 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 pei-son to whom it is indorsed. And when the in- 
 dorsement remains in l)bink, the note may be passed from per- 
 son to person by mere delivery, and the last holder has the right 
 to till in his own name as indorsee, and bring suit on the note 
 in his own name, as though it had been indorsed directly to him 
 in the first instance. 2 Parsons on Xotes and Bills, 19, 20; 
 Palmer vs. Mamhall, 00 111., 289. 
 
 Assignee After Matnrity. — That 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 assignee as if the 
 suit had been brought by the original payee of the note. 
 
 Assi^ment Without Consideration. — The jury arc instructed, that 
 when a promissory note is assigned without any consideration 
 therefor, the assignee takes it as a mere volunteer, and holds it 
 subject to all its infirmities, the same as if he had had actual 
 notice of them at the time of the assignment, or as if the note 
 had been assigned 1o him after its maturity. 1 Parsons on 
 Xotes and Bilk, 2(>2. 
 
 Assignee Before Miitnrity Without Notice, Etc. — Tne court instructs 
 the jury, as a matter of law, that the (consideration of a nego- 
 tiable note cannot l)e impeached in the hands of an innocent 
 purchaser, for value, who has received it in good faith, before 
 it became due, witliout any notice of such defense.
 
 TN CIVIL ACTIONS. 805 
 
 If the jury believe, from the evidence, that the defendant 
 made the note in question, then, under the issues in tins case, 
 the defendant assumes the burden of proving, by a preponder- 
 ance of evidence, not only that the consideration of the note has 
 failed in part {or has lo holly failed), as alleged in his pleas, but 
 also that the plaintiff took the said note after it became due, or 
 without paying any consideration therefor, or that he had notice 
 of the alleged failure of consideration at the time he purchased 
 the note, if it appears, from the evidence, that he did pur- 
 chase it. 
 
 Assignee with Notice of Suspicious Facts. — The court instructs the 
 jury, that where a person takes an assignment of a promissory 
 note for a valuable 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 failure of consideration in his 
 hands. 
 
 That a party wh(-) takes commercial paper, by indorsement, 
 before due, without knowledge of any defects of title or defense 
 to it, and for a valuable consideration, will take a good title 
 unaffected by any defense going to the consideration. Suspicion 
 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 admissible 
 against it in his hands. That result can only be produced by 
 bad faith on his part. Oomstock vs. Hannah, 76 111., 531; 
 Edwd. on B. & K, 318; Goodman vs. Harvey, 4 A. & E., 870; 
 1 Pars, on N. & B., 258; Goodman vs. Simonds, 20 How., 
 343-363. 
 
 Although the assignee of a note may have reason to know, or 
 may actually know when 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 evidence, that he had no notice of the 
 special defense now set up by the defendant, and had no reason 
 
 20
 
 306 INSTRUCTIONS 
 
 to suspect it, he Avill not be cluirgeable witli notice of the same; 
 nor can he be affected with such defense in tliis suit; provided, 
 the evidence shows that the said note was assigned to him in 
 good faith, for a vahiablc consideration, before the maturity of 
 the note. 
 
 Wlio Deemed a Bona Fide Holder. — A hohler of negotiable paper, 
 who takes it belorc maturity, for a vahiablc consideration, in the 
 usual course of business, without knowledge of facts wliich im- 
 peach its validity, as between antecedent parties, is deemed a 
 hona fide holder, Crosbij s%. Tanner^ 40 la., 136; Twitchell 
 vs. McMurtrie, 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. Way, 27 Ohio St., 374; Shreei^es vs. 
 Allen, 79 111., 553; Hamilton vs. Marks, 63 Mo., 167; Moore- 
 head vs. 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 
 the maker and make inquiry as to possible defenses, which 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. Iloury vs. Eppinger, 34 
 Mich., 21); Murray vs. Bechwith, 81 111., 43. 
 
 Assiernep with Knowledare. — If the jnry believe, from the evi- 
 dence, that the jtlaintitf, bofoi-e ho purchased said note, knew, 
 or, as an ordiuai-il\' pi-udciit man, liad reason to Ix'licve, from cir- 
 cumstances brouglit to his knowledge, before he purchased 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 
 holder of said note. 1 Pars, on X. <Sz B., 258; I'Mwd. on IJ. ^^: 
 Ts"., 320. 
 
 If the jury believe, from the evidence, tliat the ])hiintiff is not 
 an innocent holder of said note, as explained in these instruc-
 
 IN CIVIL ACTIONS. 307' 
 
 tions, 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, 
 under the statutes of Illinois, is substantially the same as that of a guar- 
 antor 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; Wolfe vs. Brown, 5 Ohio St., 304; Day vs. Elmore, 
 4 Wis., 190; Oillingham vs. Bourdinan, 29 Me., 79; Ransom vs. Sherwood, 
 26 Conn., 437; Camden vs. Doremiis, 3 How., 515; Green vs. Thompson, 33 
 la., 293; Judson vs. Gookins, 37 111., 286. 
 
 Liability Fixed by Statute — Illinois. — The j ury are instructed, that 
 under the laws of this state, the assignor of a promissory note is 
 liable to pay the same to the assignee; provided, the assignee 
 bhall have used due diligence to collect the same from the 
 maker, by the institution and prosecution of a suit against him; 
 aud if the jury believe, from the evidence, that the institution 
 of such suit would have been uuavailing 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 without the institution of a 
 suit, the same as if due diligence by suit had been used against 
 the maker. Mason vs. Barton^ 54 111., 349; Beattie vs. 
 Browne, 64 111., 360. 
 
 Intention does not Govern. — The jury are instructed, 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 defend- 
 ant 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. Ilawhinson vs. Olson, 48 111., 277. 
 
 Due Diligence Defined. — The court instructs the jury, that in 
 order to hold the indorser of a note liable on his indorsement, it 
 is not necessary that the holder, in his attempts to collect the
 
 308 INSTRUCTIONS 
 
 note of the maker, should have used the greatest possible degree 
 of diligence. He is only required to use such diligence as is ordi- 
 narily used by careful, vigilant and prudent men in the conduct 
 of their own affairs. 2 Pars, on N. & B., l-il. 
 
 If the jury believe, from the evidence, that the plaintiff insti- 
 tuted a suit on the note in (piestion, 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 prose- 
 cuted said suit to final judgment, with all reasonable diligence, 
 and, after the judgment was o1)tained, with all reasonable dil- 
 igence caused an execution to issue thereon, and placed the 
 same in the hands of the sheriff of said county; and if the jury 
 furHier 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 [ninety) days from its 
 issue he returned the execution, no property found, then the plain- 
 tiff is entitled to recover in this suit the auiount of said note 
 and interest, provided the jury further believe, froiu the evidence, 
 that during the tiuie the sheriff' so held the execution, and ever 
 since that time, said A. I>. 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. Jud- 
 son vs. GooJcin^ 37 111., 286. 
 
 If the jury believe, from the evidence, that the plaintiff 
 prosecuted the maker of the note by 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 shei-iff oE the county where the maker of the 
 note resided, and the sheriff returned the said execution, in 
 Avliole {or in j)<t,rt) unsatisfied, and no property found, then the 
 plaintiff is entitled to recover; provided the jury believe, from 
 iho evidence, that the defendant in the execution has had no 
 2>roperty in his possession liable to l)e taken on said execution, 
 r.s explained in these instructions, since the maturity of the said 
 note, and before the commencement of this suit, or no such prop- 
 erty known to the plaintiff or his attorney, or which they might 
 have discovered, by the exercise of reasouable care and diligence 
 directed to that end.
 
 IN CIVIL ACTIONS. 309 
 
 The court instructs the jury, that in order to render the 
 assignor of a promissory note liable on his indorsement, upon 
 the ground that the holder has used due diligence to collect the 
 note fi-om the maker, the assignee must show, by a preponder- 
 ance of evidence, that he instituted a suit against the maker and 
 prosecuted it to judgment, at the earliest practicable 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. 
 
 The court instructs the jury, that our statute, in relation to 
 promissory notes, makes the indorser 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 preponder- 
 ance of evidence, that within the county where the suit was 
 commenced he had used all the means that the law has furnished 
 liim with to enforce the collection of the money. Holhrook vs. 
 Yihhard, 3 Scam., 405. 
 
 What is Due Diligence — Suit Unavailing. — That when a note i'-, 
 assigned by the payee, the intention of the law is, that the assignee 
 shall make the amount out of the maker of the note, if it can be 
 done by 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. GooJciym, 37 111., 286. 
 
 The jury are instructed, that when the indorsee seeks to re- 
 cover against the indorser of a promissory note, upon the ground 
 that a suit against tlie maker would have been unavailing, the 
 fact, if proved, that the maker was solvent when the note came 
 due, will not affect the liability of the indorser, if it appears, 
 Irom the evidence, that such solvency did not continue 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 evidence,
 
 310 INSTRUCTIONS 
 
 and then and there assigned the same to him by writing liis 
 name on the back thereof, and that at the time when the note 
 came due the said makers, and each of them, was insolvent, 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. 
 
 Part of Note Collectable .Vj?aiiist Maker. — Tliougli the jury may be- 
 lieve, from the evidence, that l)y the use of reasonable diligence 
 ao-ainst 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 reasonable diligence against the 
 
 makers. 
 
 [See Part I., Sec. lo.] 
 
 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 diligence in the 
 institution and prosecution of a suit against him, at any time 
 after the note became due, and before the commencement of 
 this suit, then the plaintiff is entithul to recover. 
 
 If the jui-y believe, from the evidence, that the; maker of the 
 note in question, at the time the same came due, had no prop- 
 erty except what was exempt from execution, as explained in 
 these instructions, and that he was insolvent, and that that con- 
 dition of things continued to the commencement of this suit, 
 then the plaintiff was under no obligation to commence a suit 
 against the maker of the note, in order to hold the defendant 
 liable. 
 
 If the jury believe, from the evidence, tliat at all times, after 
 the note came due, the institution of a suit, by the plaintiff, 
 ao-ainst 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 lias 
 so continued up to the time of the commencement of this suit, 
 and that the prosecution of a suit against him would have been
 
 IN CIVIL ACTIONS. 
 
 311 
 
 unavailing, to obtain the amonnt due on the note, or any part 
 thereof, the jury should fiud for the plaintiff. 
 
 Execution Returned— No Property Found The court instructs the 
 
 jury, that the return, by a coustable, of an execution, 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 the case, as tending to show that the defend- 
 ant in the execution had no personal property, subject to execu- 
 tion, while the execution was in the hands of the officer, nor at 
 the time of such return. 
 
 That the execution returued 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 propei-ty in this 
 county, subject to execution during the time the sheriff held such 
 execution, nor at the time of said return. 
 
 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 neces- 
 sary for the jury to believe, from the evidence, that such suit 
 would have been unavailing. 2 Pars, on N. & B., 142 ; Roberts 
 vs. Haskell, 20 111., 59. 
 
 Return of the Officer Not Conclusive The court instructs the jury, 
 
 that the executions, introduced in evidence with the returns 
 thereon indorsed, of no property found, are 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. 
 Roberts vs. Haskell, 20 111., 59. 
 
 Execution from Justice, no Evidence Regarding Real Estate. — The jury 
 are further instructed, that the return of an officer, of no prop- 
 erty 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 execution, at the date of such 
 return.
 
 312 ixsTitrcTioNS 
 
 Possession of Pei*soiial Property Evidciioe of (hvnorship. — The court 
 instnu-ts the jurv, that when one porsou sells j)crsou;il ])ropertv 
 to another, and retains possession of it, the property would l)e 
 subject to levy under an execution against the seller, so long as 
 it remains in his possession, such a sale being, in law, fraudu- 
 lent, as against subsequent purchasers, in good faith, and execu- 
 tion creditors of the seller. IJuni}) on I' rand. Con., 60. 
 
 If the jury believe, from the evidence, that A. B., the maker 
 of the note in (piestion, had in his possession property subject to 
 execution, as explained in these instructions, sufficient in value 
 to have paid the notes, at any time after a judgment might have 
 been obtained against him, by the use of reasonable diligence, 
 and before the commencement of this suit, then the jury should 
 find for the defendant. 
 
 That the possession of personal property is jprima facie 
 evidence of ownership; and in this 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 proj^erty, sufficient in 
 value to have paid the note, over and above his property exempt 
 from e\e(nition, then it was the duty of the plaintiff to use all 
 reasonable diligence to make the debt out of the maker of the 
 note, by getting a judgment, and levying an execution on such 
 property, and trying the title to the same, if it was claimed by 
 others; and if the jury believe, from the evidence, that the 
 plaintiff did not do so, and that on this trial he has failed to 
 overcome or remove the presumption of ownershij3 arising from 
 such possession, ]»y a preponderance of evidence, then the jury 
 should find for the defendant. 
 
 If the jury believe, from the evidence, that at, or about, the 
 time the note in (piestion became due, and shortly afterwards, 
 the maker had j)roperty in his ])ossession, not e\em[>t from exe- 
 cution, as explained in these instructions, sufficient to have paid 
 the said note, or any considerable part of it, then the presump- 
 tion of law is, that such pnjperty belonged to him, and that I)y 
 the use of due diligcmcc! in the institution and j)rosecution of a 
 suit again&t the maker, the amount of the note, or a part of it,
 
 IN CIVIL ACTIONS. 313 
 
 could have been made out of the maker; and the burden of proof 
 is on the plaintiff to show, bj a preponderance of the evidence, 
 that such jiroperty did not belong to the said S. M., or that for 
 some reason it was not available for the payment of said note. 
 
 The court further instructs the jury, that to render the 
 assignor of a note liable thereon, the 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 of such suit would have been 
 unavailing. 
 
 That to excuse the 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 apparently 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 further 
 believe, from the evidence, that had the plaintiff used due dili- 
 gence in the collection of the note, he could have collected the 
 same from the maker, then the jury will find for the defendant. 
 
 If the jury believe, from the evidence, that after a judgment 
 might have been obtained against the maker of the note, and 
 before the commencement of this suit, he had personal 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 presumption that the note, or such 
 part of it, could have 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, per- 
 sonal property during, etc., such possession is presumptive 
 evidence that he owned said property; and unless the jury 
 believe, from the evidence, that some one else owned the prop- 
 erty, the presumption would be, that it really belonged to the 
 said S. M. Bohevts vs. Haskell, 20 111., 59.
 
 ol-i INSTRUCTIONS 
 
 GUARANTOR OF PAYMENT. 
 
 Note.— Parsons says: "There is much diversity of opinion among the 
 courts of the different states, as to the 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 statts, one indorsing in such manner, is, prima facie, re- 
 garded as a guiirantor; in others, as an indorscr; and in others, as a joint 
 promissor, or surety. But in most of the states, the effect of such an 
 indorsement is hold to d<!pond upon the intention of the parties, which may 
 be ascertained by parol evidence." 2 Pars, on N. <t B., ll'J. 
 
 Guarantor— Liability tJenorally. — The jury arc instructed, that a 
 o-uarantor of a promissory note cannot l)e made liable beyond 
 the express terms of his contract or nudcrtakluij;'. Ho lias a 
 right to prescribe the terms and conditions upon which he will 
 assume a respousilnlity, and no other person has a right to 
 change those terms, not even with the design of dimiuishing the 
 probabilities of ultimate loss by the guarantor; and it is wholly 
 immaterial whether the change is advantageous to him or not. 
 Ryan vs. The Trusteef^, 14 111., 20. 
 
 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 
 guiii-anty at the time of the execution of the note. 
 
 If the jury believe, from the evidence, that the defendant 
 wrote his name on the back of the note in (piestion before it Avas 
 delivered to the i)ayee, 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; nidess 
 the jury further believe, from the evidence, that it was expressly 
 agreed and understood by the parties to the note, when the de- 
 fendant indorsed it, that he did not indorse it as guaraiitor of 
 the payment. 
 
 That where the name of a person not the payee of a note is 
 indorsed on it, l)efore delivery, in the absence of evidence to the 
 contrarv, he indorses it as a guarantor. Glichauf vs. Kauf- 
 m.ann, To ill., 37
 
 IN CIVIL ACTIONS, 
 
 315 
 
 LiaWe Until Note is Paid. — That the liability of the t^niarautor of 
 a note continues until the note is paid or ])arred by the statute 
 of limitations, and he is not discharged by a mere delay in 
 bringing suit against the maker. Parkhurst vs. Vail, 73 111., 
 o±o. 
 
 Delay Will Not Release. — That mere delay, on the part of a cred- 
 itor, 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 affirmative act to his prejudice. Villars 
 v:. Palmer, 67 111., 20i; Edwd. on B. & N., 292; 2 Pars, on 
 N. & B., 24G. 
 
 Consideration for (guaranty. — The jury are instructed, as a matter 
 of law, that to render a contract of guaranty binding, it must 
 be upon a good or valuable consideration. If a guaranty is 
 placed upon tlie back of a note, at the the time of its execution 
 or before its delivery to tlie payee, so as to form a part of tlie 
 original transaction, then no other considerati(jn need be shown. 
 
 But when the name of a guarantor is written on the back of 
 a note, after its delix-ery to the payee, then to make the guaran- 
 tor liable the jury must believe, from the evidence, that there 
 was some new consideration for such guaranty. Joslyn vs. Ool- 
 Imsoii, 26 111., 61; 2 Pars, on N. & B., 126; Ware vs. Adams^ 
 21 Me., 177; White vs. White, 30 Vt., 338. 
 
 The court instructs the jury, that if a tliird party signs his 
 name, as a guarantor, upon a promissory note, before its delivery 
 to the payee, the consideration of the note will be presumed to 
 be the consideration of the guaranty ; but if he signs it after 
 delivery to the payee, then a consideration must be shown. 
 
 Release of tfuarantor. — The court instructs 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, after its maturity, will release the guarantor {or 
 i<urety), unless he consents to the agreement at the time it is 
 made, or afterwards ratifies it. Edwd. on B. & IST., 291 ; 2 Pars, 
 on N. & B., 215; Danforthy^. Simple, 73 111., 170.
 
 31G INSTKUCTIONS 
 
 The jury are further instructed, that an agreement to extend 
 the thue of payment of a note, after its maturity, made between 
 the holder and the principal maker, to have the effect to release 
 the indorser, nnist be a valid agreement, upon a sufficient con- 
 sideration, and one that tlie maker could enforce as against the 
 pavee or holder of the note. An agreement to continue to pay 
 usury {or an agreement to continae to pay interest at the rate 
 mentioned in the note) M'ould not be such an agreement, and it 
 would not release the indorser. Stewart vs. Parker, 55 Ga., 
 C5G; White vs. Wliitney, 51 Ind., 12-i; Myers vs. First Nat. 
 BJc., TS III., 257; Weed c6 Co. vs. Oherreioh, 38 Wis., 325; Faw- 
 cett vs. Freshwater, 31 Ohio St., 037. 
 
 That in order that an agreement between the creditor and 
 principal debtor on a note, to extend the time of payment, shall 
 operate to discharge a guarantor, or be available to hiui as a de- 
 fense, the agreement must be such a one as can be enforced by 
 the principal against the creditor. 
 
 That a contract to extend the time of payment on a note, in 
 consideration 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. 
 
 That 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. 
 
 Subsequent Promise to Pay. — The court instructs the jury, as a 
 matter of law, that a promise, ])y 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 the maker, 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 
 prosecution of a suit against him. And, in this case, if the 
 jury believe, from the evidence, that since the note became due,
 
 IN CIVIL ACTIONS. 317 
 
 the defendant, with full knowledge of all the facts relating to 
 the liability and responsibility of the maker, promised the plain- 
 tiff to pay him the note, then the jury should find for the plain- 
 tiff, regardless of the insolvency of the maker. 1 Pai-s. on X. 
 & B., 584; Edwd. on B. & N., 650; Tebhetts vs. Dowd, 23 
 Wend., 379; Ilmjlies 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 knowl- 
 edge of the facts, which 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. & K, 651; Tehhetts 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 defend- 
 ant was released from his liability thereon as indorser by the 
 failure of the plaintiff to sue the maker, still, if the jury believe, 
 from the evidence, that the defendant, with full knowledge of 
 all these facts, afterwards promised to pay it, then his ante- 
 cedent liability therefor is, in law, a sufficient consideration to 
 support his promise to pay the same. 
 
 That when the principal maker and the holder of the note 
 agree, for a valuable consideration, to extend the time of pay- 
 ment of the note, without the knowledge or consent of the 
 surety or guarantor, such an agreement will release the surety 
 or guarantor; 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.
 
 318 INSTRUCTIONS 
 
 Failure or Want of Coiisitleration— Burden of Proof. — Tho court 
 instructs the jury, tluit uiidcr the hiws of this state, the note 
 offered in evidence in this suit is prima facie evidence of an 
 honest indebtedness owing from the maker to the payee of tlie 
 note, at the time it was made and delivered; and, unless the 
 defendant has established, by a preponderance of evidence, that 
 the note was given without consideration (or that the considera- 
 tion 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 plain- 
 i\^, prima facie, to recover the amount which appears to l)e due 
 by the face of the note, after deducting the payments, if any, 
 that have been made thereon ; and the burden of proving any 
 defense to said note is upon the defendant, aiul unless he has 
 proved his alleged defense by a preponderance of evidence, the 
 jury should disregard such defense in arriving at their verdict. 
 
 Consideration Presumed, "When. — The court instructs the jury, 
 that it is not necessary, in the first instance, for the j)laintiff to 
 show any consideration for the giving of said note; the note 
 itself imports consideration, and is sufficient to entitle the plain- 
 tiff to recover, unless the jury believe, from the evidence, that 
 the defendant has shown some good and valid defense to the 
 same, and the burden of proof is on him to sliow 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 defendiuit to prove, l)y a preiiondcrance of the evi-
 
 IN CIVIL ACTIONS. 319 
 
 dence, that the note in question was given without considera- 
 tion, and unless he has done this, the jury should find for the 
 plaintiff. 
 
 Abandonment of Claim a Good Consideration. — If the jury believe, 
 from the evidence, that at the time the note was given, the payee 
 of the note, in good faith, claimed to have a lien upon said 
 lands, for the payment of a debt due him, or some right or 
 interest in or to the land, and that the note was given in con- 
 sideration of his giving up and abandoning such claim, and that 
 he did thereupon give up and aliandon said claim, that would 
 be a sufficient consideration for the note, and it would not matter, 
 in such case, whether his claim was a valid one in law or not. 
 
 Disputed Claim must be Sustainable. — The jury are instructed, 
 that to render the forbearance of a claim, or an agreement not 
 to enforce an alleged claim, a sufficient consideration for a 
 promissory note, it is essential that the claim itself, 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 con- 
 sideration. Heaps vs. Dunham, 95 111., 583 ; Parsons vs. Pen- 
 dleton, etc., 59 Ind., 36; Tucker vs. Rank, 42 la., 80; O. c£' C. 
 Bd. Co. vs. Potter, 5 Greg., 228. 
 
 Want of Consideration. — The court instructs the jnry, 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 chargeable 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 jui-y believe, from the evidence, 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 assimied to him.
 
 320 INSTRUCTIONS 
 
 If the jury believe, from the evidence, that the note in ([ues- 
 tiun was ^ivon without a i2;(K)d or vahiable consideration, then, 
 ahhoui-'h 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 l)indinii: on the defend- 
 ant, nnless it was made npon some new and valuable considera- 
 tion; nnless the jury further believe, from the evidence, that the 
 note was assigned to the plaintiff before its maturity, and that 
 he had no notice of such want of consideration when he pur- 
 chased the note. 
 
 Note Obtained by Fraudulent Representation. — As regards the de- 
 fense 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 tlie 
 said A. B. then knew them to be false; that they were such as a 
 man of ordinary caution and prudence would l)e 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. 
 
 Representations must be Maiterial. — If the jury believe, from the 
 evidence, that the defendant got for his note all that he ex- 
 pected to get, so far as relates to quantity and value, in the 
 transaction in which the note was given, then he is liable npon 
 the note, althongli the said A. B. may have deceived him in rela- 
 tion to his own inteiv^^t in the pi-operty, or in any other matter 
 not affecting the value of the property or of the consideration of 
 the note. 
 
 Obtained by Fraud and Circumvention. — If the jury l)elieve, from 
 the evidence, that the dei'eudiuit wa^ induced by the plaintiff, 
 or by anyone acting for him, to sign the note offered in evidence 
 in this case, l)y fraud or circumvention, in manner and form as 
 alleged in defendant's plea, then the said note is void as to the 
 defendant, and lie is not lial)le thereon.
 
 IN CIVIL ACTIONS. 321 
 
 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 defend- 
 ant signed the note he was unable to read writing readily, and re- 
 quested the said A. B. to read the same to him [oi- 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, misread the same in 
 any material part, and thus misled the defendant, and indnced 
 him to sign said note, when he would not otherwise have done 
 so, then these facts would constitute fraud and circumvention 
 within the meaning of the law, and the note is not binding upon 
 the defendant, but is wholly void as to him. Edwd. on B. & N., 
 o25; Chitty on Bills, 73. 
 
 The jury are instructed, that the question for their determina- 
 tion in this case is not whether the note was given for {a patent 
 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 preponderance of 
 evidence, on this trial, that his signature was obtained 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. 
 
 That 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 imma- 
 terial what the note was given for, or what deception was prac- 
 ticed on him in relation to the consideration of the note; pro- 
 vided the jury believe, from the evidence, that the defendant 
 did sign the note in fact, and knew that he was signing the note 
 when he did so. 
 
 Frand and Circumvention — Illmois Statute. —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. 
 
 21
 
 322 INSTRUCTIONS 
 
 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 l>v fraud or circuinventicui, is a good defense, 
 and it is innnatei'ial whether the assignee took the note with or 
 without notice of such defense; provided, the maker used rea- 
 sonable care and caution to avoid being imposed upon. Hewitt 
 vs. Jones, 72 111, 218. 
 
 That if a person is induced, through a fraud practiced upon 
 him, to sign a promissory note, under the belief that it is an in- 
 strument of an entirely different cliaracter, and he is guilty of 
 no negligence on his part, the note will be void in whosesoever 
 hands it may be, as having been obtained through fraud and 
 circumvention. Hubhard vs. Banhin, 71 111., 129. 
 
 That in this state, if the signature of a person is obtained to a 
 note by the 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 hona fide assignee, without notice; pro- 
 vided, it appears, from the evidence, that the nuiker 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 representations made to him, regarding the character of 
 the instrument which he was desired to sign, so that he was led 
 to believe the paper presented was a wholly different instru- 
 ment, 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 neg- 
 ligence which contributed to the deception. DeCamjp vs. 
 Ilamma, 29 Ohio St., 4G7; Iluhhard vs. Rankin, 71 111., 129. 
 
 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 person is induced to give the note
 
 IN CIVIL ACTIONS. 323 
 
 in question, under tlie belief that lie 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 it is for a different 
 amount). Latham vs. Smith, 45 111,, 25; Butler vs. Cams, 
 37 Wis., 61. 
 
 That to render a promissory note void in the hands of a hona 
 fide assignee, on the ground of fraud and circumvention, the 
 fraud must 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, ill order to come within the terms fraud and circumven- 
 tion, in procuring the execution of the instrumeut. 
 
 The jury are furrher instructed, that in this suit {or utider the 
 plea of fraud and cirGumvention, 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 defendant's 
 signature to the note was obtained by fraud and circumvention 
 — that is, by some fraudulent trick, or device. 
 
 Signing Withont Reading. — If the jury believe, from the evidence, 
 that the defendant did sign the note; and further, that he was 
 induced, by the representations of the said A, B. regarding the 
 c<mtents of the paper thus signed by him, not to read it over; 
 and if the jury further believe, from the evidence, that in rely- 
 ing upon such representations, the defendant acted as the great 
 mass of men, in his station in life, and engaged m the same 
 business, would have acted, and that in that regard he used 
 ordinary and reasonable care and caution 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 fraud upon 
 the defendant, to induce him to give the note, still, if the
 
 324 IN S T R U T I O N 3 
 
 defendant signed the same, knowing that lie was giving such a 
 note as the one in controversy, this is not wiiat the law means by 
 ol.taini ug the execution of a note by fraud or circumvention. 
 
 Mistake as to Legal Ellect. — If the jury believe, from the evi- 
 dence, that the defendant, at the 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. 
 
 Reasonable Care, Wliat. — The jury are instructed, that when a 
 person executes a note, he must be diligent, and use all reason- 
 able means to prevent a fraud being practiced on him, and if he 
 does not do so, he will be liable to an innocent purchaser of the 
 note, befoi-e maturity. He is not required to nse every possible 
 pi-ecaution, l)ut only such as would be expected from men of 
 ordinary prudence, in the same station of life, and of the same 
 general lousiness experience. 
 
 That in order to make the defense of fraud and circumven- 
 tion, in obtaining the execution of a note, available against an 
 innocent assignee thereof, before maturity, it is only necessary 
 to show that the maker of the note used ordinary care and cau- 
 tion to prevent l)eing iuiposed iqx)ii, in the execution of the 
 note, and that the execution of the same was obtained by 
 fraud and circumvention. 
 
 That in order to make the defense of fraud and circumven- 
 tion, 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 neces- 
 sary to use such reasonable caution as generally governs the con- 
 duct of a majority of prudent men. 
 
 Must Use Reasonable (are to Avoid [niposition. — That a person, be- 
 fore executinor 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
 
 IN CIVIL ACTIONS. 325 
 
 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, rcaioiiably calculated to induce him to 
 neglect such ordinary prudence. Hoss vs. Doland^ 29 Ohio 
 St., 473. 
 
 Burden of Proof. — That the aUeijation that his signature was 
 obtained by fraud and circumvention, is one upon which the 
 defendant has the burden of proof; and before he can derive 
 any benefit from that allegation, he must prove the truth of it, 
 by a preponderance of evidence : and unless he has done so, the 
 jury should find for the plaintiff, uj)on that issue. 
 
 The jury ai-e further instructed, that when a person sets up 
 fraud and circumvention, to defeat a recover}- on a note, and 
 supports such defense by his own testimony alone, 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 
 equall}' credible, have equal oppoi-tunities for knowing, and 
 testify apparentl}^ with equal fairness, candor, and truthful- 
 ness, 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, intro- 
 duced in evidence, then the note will entitle the plaintiff to 
 recover, unless the defendant has established, by a preponder- 
 ance of evidence, that the signature to the note was obtained by 
 fraud or circumvention. 
 
 Note Stolen, or Wrongfnlly Obtained. — If the jury believe, from 
 the evidence, that the defendant signed the note in question, in 
 this 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 plaintiff 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 was stolen.
 
 326 INSTKUCTIONS 
 
 from etc)^ or othenvise wrongfully put into circulation. Claris 
 vs. Johnson, 54: 111., 21M). 
 
 That, although the jury may believe, from the evidence, that 
 the note in question was lost by the defendant {or stolen from 
 him), 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 g(3od faith, for a 
 valuable consideration, and before maturity, and without any 
 knowledge of the manner in which it got into circulation, then 
 the plaintiff is entitled to recover on the note. FranJdln, etc., 
 vs. Ileinsman, 1 Mo. App., 33G; Shiply vs. Carroll, 45 111., 
 285; Murry vs. Lardner, 2 Wall, llo. 
 
 Din-ess— Abuse of Criminal Process. — The court instructs the jury, 
 that if they believe, from the evidence, that the note sued upon, 
 in this case, was obtained from the defendant through a wrong- 
 ful 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. 
 
 If the jury believe, from the evidence, that L., the payee of 
 the note, caused crimiiuil process to be issued against the de- 
 fendant, and used it to enforce a settlement of a doubtful claim, 
 and tliat while defendant was under arrest, under such process, 
 the said L. used threats against the defendant, to induce 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 lirmness, and that 
 under the influence of su(;h threats, and while under such arrest, 
 the defendant signed the notes, then the law is that such note 
 is void, etc. 
 
 Note. — If suit is brought by an assignee of the note, qualify these 
 instructions 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 that produced by 
 threats to inflict great bodily harm, as well as that produced by 
 unlawful imprisonment, is regarded, in law, as sutiicient to 
 destroy free agency.
 
 IN CIVIL ACTIONS. 32? 
 
 That threats made by a party having 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 tlireats are complied with, are sufficient to 
 avoid a contract entered into tlirough fear induced by such 
 threats; provided, the claim is of doubtful validity or is dis- 
 puted by the party threatened. 
 
 That 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 plaintiff obtained and used a warrant for the arrest of 
 the defendant, for the purpose of effecting 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 means of threats against 
 tlie defoidant, as stated in such defendant's plea, and that such 
 threats were of such a character as to be likely to terrify a man 
 of ordinary and reasonable firmness, then duress would be estab- 
 lished, and the notes thus obtained are void. 
 
 Lawful Imprisonment not Duress. — The jury are instructed, 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 jnry may believe, from the 
 evidence, that the notes in question were executed and delivered 
 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. Jleajps vs. Dunham et al., 95 111., 
 583. 
 
 The court further instructs the jnry, that there is no evidence 
 in this case authorizing the arrest of the defendant, at the time 
 in question, and if the jnr}' believe, from the evidence, 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., as stated and set out in the
 
 328 INSTRUCTIONS 
 
 papers iiitnxlncod in ovidonce in this case, or to furtliei- pros- 
 ecute tlie defendant under such arrest, unless he sliouhl 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 the jury believe, from the evidence, that the plaintiff 
 maliciously, and without pi'obable 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 delivered the 
 note in question, then the note was given under what the law 
 terms duress, and the defendant is uoi liable thereon. 
 
 [For Malice and Probable Cause, See Malicious Prosecution.] 
 
 NOTICE. 
 
 Notice to Ag:ent. — The jury are instructod, that it is a i-ule of 
 law that notice to an agent is notice to his principal, and that 
 what is known to an agent is known to his principal; provided, 
 such notice or knowledge is received 1)V the agent while he is 
 acting as such agent. 
 
 That 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. Pi'iu.(jle vs. Dunn, 37 
 Wis., 449. 
 
 That while it is a gcnci-al rule of law, that a notice to an 
 agent is notice to his principal, still, in order to bind a person 
 bv notice to his agent, it must appear, from the preponderance 
 of the evidence, that the alleged agent was the agent of the 
 party songht 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. 
 [See Principal and Agent.]
 
 IN CIVIL ACTIONS. 329 
 
 Notice to Corporation. — The court instrncts the jury, that noti(;e 
 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 situa- 
 tion and relation to the corporation imply authority to represent 
 the corporation in such matter. 1 Pars, on Cont., ()6 ; Keenan 
 vs. Dubuque, etc., 13 la., 375 ; Fulton Bh. vs. Neio YorJc, etc., 
 4 Paige, 127; Housatonic Bh. vs. Martin, 1 Met., 294; Bh. 
 of the U. S. vs. Davis, 2 Hill., 151 ; Farmers', etc., Bh. vs. 
 Payne, 25 Conn., 444. 
 
 The jury are further instructed, that a single director, simply 
 as such, has no authority to represent or bind a corporation ; 
 and although the jury may believe, from the evidence, that the 
 said A. B. was a director in the defendant corporation, and 
 that before, etc., and while he was such director, he had knowl- 
 edge, or was informed of the fact, etc., still, these facts alone 
 would not show notice to the defendant, nor bind the corpora- 
 tion in respect to such notice. 
 
 Facts Calling for Inquiry. — The court instructs the jury, that 
 whatever is sufficient to put a purchaser of land upon inquiry, 
 as to the existence of an unrecorded deed, is sufficient notice of 
 such deed. That in general, where notice is required 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 knowledge of which such 
 inquiries would have led. Bump on Fraud. Con., 232 ; Forhes 
 vs. How, 102 Mass., 427 ; Beaton vs. Frather, 84 111., 330 ; 
 Bice vs. Melendy., 41 la., 395. 
 
 Whatever is notice enough to excite attention, and put a party 
 on his guard, and call for inquiry, is notice of everything to 
 which such inquiry might have led ; and every unusual circum- 
 stance is ground of suspicion, and prescribes inquiry, Russell 
 vs. Bauson, 76 111., 167. 
 
 The court instructs the jury, that to charge a person with 
 notice, on the ground that he had knowledge of such facts as 
 ought to have put him upon inquiry, it must appear, from the 
 evidence, that the information he had received was of that char- 
 acter that it was calculated to excite the attention of an ordi-
 
 330 INSTRUCTIONS 
 
 luirilv prudent persioii, and that such person, by the exercise of 
 reasonable and ordinary diligence, could, upon inquiry and 
 investigation, arrive at the knowledge of the fact with which he 
 is sought to he charged. City of Chicago vs. Witt, 75 111., 211. 
 
 Kooitals in IK'od. — The jury are further instructed, that the 
 recitals in a deed in the chain of title, under which a person 
 claims, are such notice to a purchaser of the property as will 
 put him on inquiry as to the nature and effect of the matter rc- 
 feri-ed to in the recitals. C. cfc E. I. R. R. Co. vs. Kennedy, 
 TO 111., 350; Mosle vs. Kuhlnian, 40 la., 108. 
 
 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 effected to the same extent as though the 
 deed were recorded. Eussell vs. Bauson, 7C III., 107. 
 
 PARTNERSHI P. 
 
 Who 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 stt»ck or 
 common enterprise, to be used for the purpose of carrying on 
 business for the connuon benelit. Pars, on J'art., 54; Stoi-v on 
 Part., § 2. 
 
 Partnersliip — How Formal. — A partnership can only exist as 
 between the parties themselves, in pursuaiun^ of an express or 
 an implied agreement, to which the minds of the parties liave 
 assented; the intention, or even belief, of one party alone cannot 
 create a partnership without the assent of the others. Story on 
 Part., § SO; Pars, on Part., 0; Phillips vs. Phillips, 49 111., 437.
 
 IN CIVIL ACTIONS. 
 
 331 
 
 As to Third Persons. — The jury are instructed, that parties may 
 so conduct themselves as to be liable to third persons as part- 
 ners, when, in fact, no partnership exists as between themselves. 
 The public are authorized to judge from appearances and pro- 
 fessions, and are not bound to know the real facts. 
 
 That persons may be copartners, 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 public, 
 or persons dealing with them in believing that they are partners. 
 
 Holding Oneself Out 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 hold- 
 ing himself out will be liable as a partner to the person so deal- 
 ing, notwithstanding there was, in fact, no such partnership. 
 Pars, on Part., 61; Smith vs. Knight, 71 111., 118; Peck \&. 
 Lusl', 38 la., 93; Story on Part, § 61. 
 
 If the jury 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 with 
 the business carried on at, etc., as to reasonably justify the pub- 
 lic, and persons generally dealing at that place, in supposing and 
 believing that he was a partner with said C, and that the plain- 
 tiffs, 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 supposi- 
 tion, then he would be liable on the note as a partner, whether 
 he was in fact a partner or not. 
 
 If the jury 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 
 justify the plaintiffs, and persons generally dealing with the firm,
 
 332 INSTRUCTIONS 
 
 in supposing and believing that he was a member of that firm, 
 and that the plaintiffs, before they sold the goods for which the 
 note was given, had knowledge of these facts, and were thereliv 
 induced to believe that A. E. M'as a partner in that fn-m, and 
 that at the time they sold the goods and took the note they did 
 suppose and believe that lie was a member of the firm, then he 
 v.'ould be liable on the note as a partner, whether he was in fact 
 a partner or not. 
 
 That when pei-sons hold themselves out to the world by their 
 acts or declarations as pai-tncrs, they will be liable as such, 
 whether such relation really exists between them or not. If 
 they knowingly permit their names to appeal- in tlie style of the 
 firm in the business cards, notices or advertisements of the firm, 
 they cannot escape liability for debts contracted in the name of 
 the firm. Ellis vs. Bronson, 40 111., 455; Barnett^ etc., vs. 
 Blaclmar, 53 Ga., 98. 
 
 If the jury 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 E. <Sc 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 sold the 
 goods, and took the note in question, had reason to believe, and 
 did believe, from the maimer in which the business was con- 
 ducted, that he was a member of the firm, then the plaintiffs 
 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 M-as a member 
 of the firm or not. 
 
 [See Estoppel.] 
 
 Partnership in the Name of one Partner. — The court instructs the 
 jury, that although they may l)elieve, from the evidence, that the 
 ])usiness at S. was carried on in the name of J. C. alone, this 
 fact Would not be conclusive that no partnership existed. The 
 question of 23artnership does not dejiend upon the name of the
 
 IN CIVIL ACTIONS. 333 
 
 firm, but upon the agreement of the j^arties as to the ownersliip 
 of the property, and as to the disposition to be made of the 
 profits of the business. 
 
 If the jury believe, from the evidence, that L. & C. entered 
 into an agreement, by which they were to engage in the business 
 of, etc., and that the business should be carried on in the name 
 of L., witli money to be furnished by C. ; L. agreeing to con- 
 tribute his time and labor to the business, and that the parties 
 should share equally in the profits thereof; and if the jujy fur- 
 ther believe, from the evidence, that the parties did engage in 
 such business, under that agreement, then they were partners, 
 so far as third persons were concerned. 
 
 Test of Partnership— Partners as Between Themselves. — The court 
 further instructs the jury, that the criterion for determining 
 whether a partnership exists as between the partners themselves, 
 is to ascertain the intention and understanding of the parties 
 themselves, at the time the partnership is alleged to have 
 existed. Pars, on Part., 58. 
 
 And in this case, if the jury 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 agree- 
 ment that they should share the profits of the said business of, 
 etc., then as to the matters involved in this suit, the question of 
 partnership should have no bearing on the mind of the jury, in 
 arriving at their verdict in this case. 
 
 That the best evidence and usual test of a partnership, is the 
 sharing, between the alleged partnei-s, of the profits aud losses 
 of the business; and if the jury 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. 
 
 Power of Partner to Bind the Fh-m. — Every partner possesses 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
 
 334 INSTRUCTIONS 
 
 attorney from thorn; uiid as between the firm and tliird parties, 
 who deal with it, in good faith and without notice, it is a matter 
 of no consequence M'hether the partner is acting fairly witli Ids 
 co-partnei-s, in the transaction, or not, if he is acting within the 
 ai)j)arent scope vi his authority, and professedly for the firm, 
 l^ars. on Part., 172; Story on Part., § 101; Pahlman vs. 
 Tdijhr, 75 111., 629; First JVatl. Bank vs. Carpenter^ 41 la., 
 518. 
 
 That if a partnership as such engages in any transaction out- 
 side of its regular husiness, the acts and declarations of one 
 partner, if proved, with respect to that transaction, bind the 
 firm as much as though they were made with respect to some 
 matter in the course of its ordinary and customary business. 
 SaudUands vs. Marah^ 2 B. & Aid., 673: Boardnian, et al. 
 vs. Adams, et al., 5 la., 224. 
 
 Wliat Acts do not Bind— Partner Using: Partnersliip Credit or Effocts.— 
 
 The jury are instructed, that one }»artner has no right Xo apjily 
 the funds, or securities, or otlier 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 dealing with such part- 
 ner, if he knows the circumstances, will be deemed to have acted 
 in bad faith, and in fraud of the other partners, and the transac- 
 tion will be void as to them. Pars, on Part., Ill; Story on 
 Part., § 132. 
 
 The jury are further instructed, that one partner has no right 
 or authority to use the credit of the partnership, or to give a 
 note, in the name of the firm, for his own debt, or in his own 
 individual transactions, without the consent of 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 purpose for 
 which, and the circumstances under which, such note or security 
 was given. 
 
 Tlie jury 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 presump- 
 tion that it was done without the knowledge or consent of the 
 other partners, and the burden of proving such knowledge and
 
 IN CIVIL ACTIONS. 335 
 
 consent, is upon the party alleging it. Story on Part., § 133: 
 Pars, on Part., 112. 
 
 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 partner- 
 ship business; but in order to bind the firm in matters outside 
 of or beyond the apparent scope of the partnership 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. McNair vs. Piatt, 46 111., 211; Boardman, et al. vs. 
 Adams, et al., 5 la., 224. 
 
 Bound by Ratification. — The jury are instructed, that while one 
 partner cannot rightfully appropriate 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 trans- 
 action, they will be deemed to have ratified it, and will be 
 bound to the same extent as though they had expressly author- 
 ized 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. Carver, 42 111., (r>(S. 
 
 [See Principal and Agent.} 
 
 When Fraud of one Partner Binds the Otlier. — The court instructs 
 the jury, that if a fraud is committed by one partner, in the 
 name of the firm, in the course of the partnership) 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. Storv on Part., § 131; Pars, on Part., 150.
 
 33G INSTRUCTIONS 
 
 Notice of Dissolution Necessary, When. — The court instructs the 
 jury, that the law is, that when a partnership is dissolved, and 
 one of the partners continues the business as before, the re- 
 tirino- 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 the .firm; and if he 
 does not do so, persons dealing with the partner who contiuues 
 the l)usiness, without actual notice of the dissolution, will have 
 a right to rely on the credit of the original firm. Pars, on Part., 
 410; Story on Part., § 65, 100. 
 
 That when one partner withdraws from the firm, and the 
 business 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 
 (vontinue to deal with the firm, without actual notice of his with- 
 drawal, can hold him liable as a member of the firm. 
 
 Cannot Sue Each Other at Law. — The court instructs the jui-y, that 
 under our practice, one partner cannot maintain an action at 
 law against his copartner for woi-k and labor performed, 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 partner- 
 ship property. 
 
 If the jury believe, from the evidence, that the plaintiff and 
 defendant were copartners during any portion of the time 
 covered by the accounts in question, tlu'u the jury should 
 excbide from their consideration, all items of account concern- 
 ing, or growing out of, the partnei-ship business, if any such have 
 l)een proved. 
 
 If the jury believe, from the evidence, that the plaintiff and 
 defendant 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 the jury believe, from the evidence, that the parties to this 
 ^uit, 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 par-
 
 IN CIVIL ACTIONS. 337 
 
 ticulars 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 between the 
 parties, then such matters cannot be litigated in this suit, and 
 the jury should disregard all such items in making up their 
 verdict. 
 
 When Maj Sue at Law. — Although the jury may believe, from 
 the evidence, that the plaintiff and defendant were formerly 
 partners, and that the account sued on grew out of their partner- 
 ship 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 commencement of this suit, then 
 the plaintiff can maintain a suit for such balan(;e. Wycoff vs. 
 Pariiell, 10 la., 332; Ridgway v^. Grant, 17 111., 117. 
 
 PRINCIPAL AND AGENT. 
 
 General Instructions of Principal. — The jury are instructed, that 
 where the directions of the principal to his agent are general as 
 to the business which he is intended to perform, then the prin- 
 cipal is held to have confided in the discretion of his agent, and 
 he will be answerable for all the acts of the agent in the per- 
 formance of the duty required. 
 
 Departure from Business of Principal. — The jury are instructed, 
 that if the directions of the principal to his agent are specific to 
 do some specific thing, and the servant disregards his specific 
 instructions, and goes about doing something else, not reasonably 
 wnthin the scope of the authority given, the master will not be 
 liable for such acts of the servant, unless they are afterwards 
 ratified by him. 
 
 Agency Presumed to Continue, Wlien.- — The jury are instructed, 
 that it is a rule of law that when a person is shown to have been 
 
 22
 
 338 INSTRUCTIONS 
 
 an agent of another in a particular business, and continues to act 
 as such agent, within the scope of his former authority, it will 
 be prcsunicd that his authority continues, and his acts will bind 
 his principal, 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 reasonably prudent man on en- 
 cpiiry as to the continuance of such agency. Barldey vs. Eenssa- 
 laer, etc. Co., 71 N. Y., 205; Packer vs. IlhiJdeij, etc., 122 
 Mass., 484; Murphy vs. Ottenheimer, 84 111., 39; Howe, etc., 
 vs. L'uider, 59 Ind., 307; Summerville vs. Ilan. (& St. Joe Rd. 
 Co., 02 Mo., 391. 
 
 The jury are instructed, that a principal is l)()und by the acts 
 of his agent only so far as those acts are specially authorized by 
 the principal, or are within the scope of the agent's apparent 
 authority ; unless such acts are afterwards ratified l)y the principal. 
 
 Warranly Within tlie Apparent Scope of, Etc. — The court further in- 
 structs the jury, that while it is true that the principal is not 
 bound bv the unauthorized acts of his agent, when such acts are 
 beyond the scope of the agent's apparent authority, yet the prin- 
 cipal 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 believ- 
 ing 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 vs. Brooks, 41 
 la., 45. 
 
 The jury are instructed, that it is a rule cf 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 j.rincipal in such transaction, or that the agent is acting 
 within the scope of his apparent authority. Peabody vs. Ilord, 
 46 111., 242. 
 
 Pnblic Officer. — The jury are instructed, that it is a general rule 
 that if a special agent, whose authority is conferred by statute or 
 l)y orders of court, or one acting in the capacity of a public 
 officer, acts outside of the authority conferred, the princijial will 
 not be bound by his acts. iJart vs. Jlercides, 57 111., 446.
 
 IN CIVIL ACTIONS. 339 
 
 In Case of Torts. — The jury are instructed, that if a tort or 
 wrong is committed by an agent, in the course of his eniph.)y- 
 ment wliile pursuing the business of his principal, and it is not 
 a M^lful dejiarture from such employment and business, the 
 princijDal will be liable for the act, although it is done without 
 his knowledge. Noble vs. Cunningham, Y4: 111., 51; Cooley on 
 Torts, 533; Hamilton vs. Third Ave. Rd. Co., 53 N. Y., 25. 
 
 Goods Furuislied Minor Child. — The court instructs the jury, as a 
 matter of law, that if a father permits his minor child to pur- 
 chase goods on his account, and the father pays for them with- 
 out objection, this will afford a presumption of agency with full 
 power to make like purchases in the future. 
 
 The jury are instructed, that either an express promise, or 
 circumstances 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. Clark, 78 111., 229; Foiolhes vs. Baler, 27 
 Tex., 135; Schouler's Domestic Rela., 329; Swain vs. Tyler, 
 26 Vt., 9; Thayer vs. White, 12 Met., 343. 
 
 The jury are instructed, that either an express promise, or 
 circumstances from wlii(;h a promise by the father may be in- 
 ferred, is essential, in all cases, to bind him for necessaries fur- 
 nished his infant child by a third person. Where the father 
 and mother separate by mutual consent, and the father permits 
 the mother to take the children with her, then the father consti- 
 tutes 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. 
 
 Gfoods Furnished the Wife. — The jury are instructed, that where 
 goods, necessary and suitable to the position in life of a wife 
 living with her husband, are sold ta her on the credit of her 
 husband, and charged to him, a jury will be justified in finding 
 that the wife was the agent of her husband to make the pur- 
 chases; and in this case, if the jury believe, from the evidence, 
 that the goods, for the price of which this suit is brought, were 
 furnished to the defendant's wife while she was residing with 
 liira, and that tlicy were necessary and suitable to the position in
 
 340 INSTRUCTIONS 
 
 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; Schouler's Dom. Rela., 77. 
 
 The jury are instructed, as a matter of law, that if a husband 
 ueo-leets to furnish his wife, while living witli 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. 
 
 In Case of Desertion by Wife. — The jury are instructed, as a matter 
 of law, that if a wife deserts her husl)and without sufficient 
 cause, as explained in these instructions, or renuiins sci)arate 
 from him without his consent, and without good and sufficient 
 cause, lie will not be liable for necessaries purchased by her. 
 Oinson vs. Heritage, 45 Ind., 73. 
 
 The jury are further instructed, that if they believe, from the 
 evidence, that the plaintiff sold the goods sued for, to the defend- 
 ant'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 preponderaiu;e of evi- 
 dence, that the wife had just and legal reason to live separate 
 from her husband, as explained in these instructions. Bea vs. 
 Durkee, 25 III, 5(i4. 
 
 If the jury believe, from the evidence, that the merchandise 
 for which this action is brought, was sold by plaintiff to defend- 
 ant's wife, and that at that time she M'as living apart from her 
 husband, and that the plaintiff was knowing to that fact, iheu to 
 entitle the plaintiff to recover, the burden of proof is on the 
 ])laintiff to show, hy a preponderance of evidence, that the wife 
 was living apart from her husband, witli his consent, or that the 
 wife was justitied in leaving her husband on account of his cruel 
 ti'eatmcnt, or that his conduct was so violent as to lead her to 
 reasonably fear personal \ii>UMice, or on account of some other 
 fault of the husband, which rendered it improper for her to live 
 and cohabit with him. liea vs. Durhcc, 25 111., 503. 
 
 The jury are instructed, that a husl^and i-; not bound by law 
 to support his wife, or even to furnish her with necessaries,
 
 IN CIVIL ACTIONS. 341 
 
 while she is living separate and apart from him, if she so lives, 
 without his consent, and without any good or sufficient reason or 
 cause therefor, as explained in these instructions. 
 
 And in this case, though the jury may believe, from the evi- 
 dence, that the goods in question were furnished by the plaintiff 
 to the wife of the defendant, as claimed, and that the goods were 
 necessaries, and suitable and proper to a person in her condition 
 and station in life, still, if the jury 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 sufficient 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. Rela., 90. 
 
 [For Good and Sufficient Cause of Desertion, See Divorce.] 
 
 Ratification of Agent's Acts. — The law is, that where a person's 
 name is signed to a promissory note without his authority, he 
 may afterwards ratify its execution and acknowledge its binding 
 validity upon him, and if he does this his relation to the note 
 will be precisely the same as if he had executed it personally. 
 Paul vs. Berry, 78 111., 158; Eadie vs. Ashbaugh^l^ la., 519. 
 
 The jury are instructed, that a principal who, with the full 
 knowledge of all the material facts affecting his rights, receives 
 the benefits 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. Pike vs. Douglass, 
 28 Ark., 59. 
 
 The jury are further instructed, that a principal, when fully 
 informed of his agent's acts, must dissent f roui them in a reason- 
 able time, or he will be held to have ratified them. And in 
 this case, if the jury believe, from the evidence, that defendant 
 received full information of the acts of the said A. B. in the 
 premises, on or before, etc., and remained silent and inactive 
 until, etc., then that was not a reasonable time in which to dissent 
 from the acts of the said A. B. Meyer vs. Morgan, 51 Miss., 
 21; Hawkins vs. Lange, 22 Minn., 557.
 
 34:2 INSTRUCTIONS 
 
 The jury are instructed, that although the jui-v may l)ellGve, 
 from the evidence, that the said A. B. was not authorized to 
 make a hargain wh\\ the phiintiff for the defendant, in rehxtiou 
 to, etc., yet if tlie jury believe, from the evidence, that the said 
 A. B, did make the contract for the defendant, as alleged and 
 claimed by the plaintiff, and that the defendant, with full 
 knowledge of what had been done, ratified the bargain so made, 
 then the contract will be as binding upon the defendant as if lie 
 had authorized the said A. B, to make the bargain in the first 
 instance. 
 
 Ratification Must be With Full Knowledge. — The jury arc instructed, 
 that before a person can be bound by the ratification of an act, 
 (lone on his behalf by one professing to act as his agent, it must 
 apjiear, by a preponderance of the evidence, that he was fully 
 informed of all the material facts affecting his rights in the trans- 
 action, and unless it does so appear, he will not be bound by an 
 unauthorized act, upon the ground of ratification alone. Jferr 
 vs. S/utrj), 83 111., 109; Bannon vs. Warfield, 42 Md., 22. 
 
 That when the act of ratifying the act of the agent is claimed 
 to be implied, from a knowledge of the facts, by the principal, 
 it must appear, l)y a j)ivpondcrance of the evidence, that the 
 principal had full knowledge of all the facts affecting his inter- 
 ests in the transaction. Farioell vs. Meyer, 35 111., 40. 
 
 Ratification Witliout Full Knowledge. — The coui't instructs the 
 jury, that it is a rule of law, that where an alleged principal 
 does anything tcnvards 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 affect- 
 ing the interests of the |)rincipal, then the act of ratification 
 will not be binding on the })rincipal. Miller vs. Board of\etG.y 
 -14 Cab, 100 
 
 Ratification Cannot be as to a Part Only. — The jury are instructed, 
 as a mattci- of law, that if a person adopts a contract made on 
 Ids behalf liy an agent, who had no authority to make it, he 
 must adopt it in its entirety; he caimot adopt it in part and 
 repudiate it in part. Southern Ej'J). Co. vs. Palmer, 48 Ga.,
 
 IN CIVIL ACTIONS. 343 
 
 85 ; Wldner vs. Lane, 14 Mich., 124; Henderson vs. Cummings, 
 44 111., 325; Kreder vs. Trustees, etc., 31 la., 547; MenJdns 
 vs. ^Vatson, 27 Mo., 163; Saveland vs. Green, 40 Wis., 431. 
 
 Perinitting One to Hold Himself Out. — If the jury believe, from 
 the evidence, that at the time the contract in question is alleged 
 to have been made, the defendants knew that the said A. B. M^as 
 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 
 such business, and no secret arrangement between the defend- 
 ants and the said A. B. would be binding on the plaintiff, unless 
 he had notice of the same. 
 
 The jury are instructed, that if a person knowingly and volun- 
 tarily permit another to hold himself out to the world as his 
 agent, he will be held to adopt his acts, and be bound, as principal, 
 t^) the person who gives credit to the one acting as such agent. 
 Thurher vs. Anderson, 88 111., 167. 
 
 If the j iiry l)elieve, from the evidence, that in the summer of, 
 etc., the defendants knew that A. B. was acting as their asent, 
 buying stock in their names, and voluntarily permitted him to 
 do so; and the jury further believe, from the evidence, that the 
 said A. B., while so acting, made the contract alleged in plain- 
 tiff's declaration, then the defendants would be bound thereby, 
 whether the said A. B. was, in fact, their agent at that time or 
 not. 
 
 [See Estoppel.] 
 
 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 con- 
 tract, 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.
 
 344 INSTRVCTIONS 
 
 Notice to an Affent Binding, When. — The jiirv arc instructed, tluit 
 notice to an agent of any fact concerning the matters of liis 
 agency, is the same as notice to the principal. The hwv \n-v- 
 snmes tliat an agent transmits, or, in some manner, communi- 
 cates, to his ]>rin(npal all infornuition received by him relating 
 to the nuittcr of his agency 
 
 Notice to Af?ent not Binding:, When. — The jury are instructed, that 
 a party is not chargeable with notice of facts within the knowl- 
 edge of liis agent or attorney-, where the agent or attorney 
 acquires such knowledge wliile acting as the agent or attorney 
 of another person. Harrington vs. MoCoUum, 73 111., 476. 
 
 [See Notice.] 
 
 Good Faith Required of the Aarent. — The court instructs the jury, 
 as a matter of law, that if an agent makes any profit, in the 
 course of his agency, b}' any concealed management, in either 
 buying or selling, or other transaction, on account of the pi-in- 
 cipal, the profits will belong exclusively to the principal. Cot- 
 toin vs. Jlolliday, 59 111., 17(5. 
 
 If the jury believe, from the evidence, that the defendant, 
 A. B., was the agent of the plaintiff in making the purchase of 
 the {land) in question, and that as such agent he purchased the 
 {land) for {twelve) dollars per acre, for plaintiff, and charged 
 the plaintiff {ffteen) dollars per acre, representing to the plain- 
 tift' that he was compelled to pay that price for the (land), and 
 received that amount of money from the plaiutiif on that ac- 
 count, and that the plaintiff, when he paid the money, was 
 ignorant of the price actually paid by defendant, then the 
 plaintiff is entitled to a verdict for the difference between the 
 price of the {land) at {tioelve) dollars per acre and its price at 
 {jlfteeii) dollars per acre, and interest on that sum at {six) per 
 cent, per annum, from the time the money was so paid by the 
 
 plaintiff. 
 
 \Sce FactovH and Covimisaion Men.] 
 
 Corporations only Act by Aprents. — The court instructs the jury, that 
 corporations can only act or contract by their officers or agents, 
 and when a (;orporation holds certain persons out to the })ublic
 
 IN CIVIL ACTIONS. 
 
 345 
 
 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 the jury 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 ques- 
 tion, then the corporation will be bound by the terms of such 
 contract. 
 
 Corporation May Ratify Unauthorized Acts. — A corporation, like 
 an individual, may be bound by the acts of one assuming to act 
 as its agent, if it ratify the acts of the person so professing to 
 act as agent. 
 
 Although the jury 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 
 previously authorized to contract in reference thereto, still, if 
 the jury further believe, from the evidence, that the work in 
 question was prosecuted with the knowledge and consent of the 
 officers and agents of the corporation having 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, the corporation will be held to have ratified 
 the acts of such unauthorized person, and it will be bound 
 thereby. 
 
 Individual Members of Board Cannot Act. — The supervisors have 
 no power to act individually ; it is only when convened and act- 
 ing 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 capacity, 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
 
 340 INSTRUCTIONS 
 
 individual knowledge in respeet to the matter can, in any way, 
 bind or affect such corporation. 
 
 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 Swps.^ 
 84 111., 384. 
 
 The members of the county court can only bind their county, 
 ill matters of claims, when acting as a court, and their records 
 are the only adinissable evidence of their judicial acts. McLaney 
 vs. Co. of Marion, 77 111., 488. 
 
 REPLEVIN. 
 
 Note. — The common law rules governing the action of replevin are vari- 
 ously modified by statute and by local usage, or practice, in the different 
 states; but the following instructions will be found to be generally applicable 
 to the practice in most of the states : 
 
 NO PLEA OF JUSTIFICATION FILED. 
 
 When the Action Lies. — The jury are instructed, that to entitle 
 the plaintiff to recover under the issues in this case, it is only 
 necessary that lie should prove, by a preponderance of the evi- 
 dence, that he was the owner of the pro23erty in question, and 
 entitled to the possession of the same when this suit was com- 
 menced, and that it had been wrongfully taken fi-om his posses- 
 sion l)y the defendant, or that it was then wrongfully detained 
 by him. Hill, on Eem. for Torts, 2 ; Esson vs. Tarhell, 9 Gush., 
 407; Eggleston vs. Mmuhj, 4 Mich., 295. 
 
 Ilijjlit to Possession of Properly SulTicient. — That 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 property; it is suf- 
 "^"cient if the proof shows, that before and at the time of the 
 c<jmn)encement of this suit, the plaintiff' was entitled to the 
 possession of the property; that he deniandcil the same of the 
 defendant, before commencing the suit, and after the plaintiff
 
 IN CIVIL ACTIONS. 347 
 
 became entitled to such possession, and that the defendant re- 
 fused to surrender the property to the plaintiff upon such de- 
 mand. Camjpbell vs. Williams, 39 la., 640; Hill, on Rem. for 
 Torts, 20; Noble y^. Ejpperly,'^ Ind., 414; Loomis vs. Youle, 
 1 Minn., 175. 
 
 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 property 
 by the defendant; provided the jury believe, from the evidence, 
 that the defendant had the same in his jDossession 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 the evidence, that at the time this 
 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 suit was commenced, and while the plaintiff 
 was so entitled to such possession, there was a demand made for 
 the property by the plaintiff, and a refusal to deliver the same 
 ])y the defendant, then the jury should find for the plaintiff, 
 upon the issue of wrongful detention. 
 
 That, in this action, the title or ownership of the property is 
 not necessarily involved. If the jury believe, from the evidence, 
 that the defendant had the property in his possession, and that 
 the plaintiff made a demand on liim 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 your verdict in this 
 case, as regards the issue of wrongful detention. 
 
 Burden of Proof— What Must 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 com- 
 mencement of this suit he was the owner of the property in 
 question, or that he was then entitled to the immediate posses- 
 sion of the same, and he must also further prove, by a prepon- 
 derance of the evidence, that the defendant 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 jjroperty.
 
 348 INSTRUCTIONS 
 
 Tlie jury are instructed, that in actions of this kind, if there 
 is no evidence of a wroni^ful taking of the property, and ii<> 
 jir(M»f of a demand of the property before the commencement of 
 the suit, then the plaintiff is not entitled to recover, unless the 
 jury find, from the evidence, and the instructions of the court, 
 that the defendant has, in some other manner, manifested an in- 
 tention to resist the plaintiff's claim to the property, or his right 
 to the possession thereof. 
 
 The jury are instructed, that in this case neither a wrongful 
 taking nor a wrongful detention of the property is to be pre- 
 sumed without proof, but to warrant a verdict against the 
 defendant, his guilt must be proved, by a preponderance of the 
 evidence. 
 
 Burden of Proof of Wronjarful Detaining. — The court instructs the 
 jury, that to entitle tlie })laintilf to recover upon the issue of de- 
 tention, it is incumbent upon the plaintiff to establish, 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 evi- 
 dence, that the property in question was in the possession of the 
 defendant, or subject to his control at the time the suit was 
 commenced, and that he then detained the same from the plain- 
 tiff, then, as to the issue of wrongful detention, the jury should 
 find for the defendant. Reynolds vs. McCormick^ 62 111., 412. 
 
 Wrongful Detention, How Proved. — The court instructs the jury, 
 that if they believe, from 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 tliat a demand for the 
 possession was made by the plaintiff upon the defendant, and a 
 delivery of the pi-operty 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 circumstances tending to show such 
 detention, if proved, are proper evidence to be considered l)y 
 the jury; and if they believe, from the evidence, and from such
 
 IN CIVIL ACTIONS. 349 
 
 other facts and circumstances as the jury find to have been 
 proved, tliat there was a wrongful detention of the property, as 
 explained in these instructions, then the proof of demand and 
 refusal was unnecessary to prove a wrongful detention. 
 
 When Demand N(>t 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 before the 
 commencement of this suit is not necessary to be proved, under 
 the issues in this case, to entitle the plaintiff to recover. 
 
 That 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 so 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 question, and that defendant went to plaintiff's 
 pasture and took the {heifer) therefrom without plaintiff's per- 
 mission, and against his will, then no demand was necessary 
 before commencing this suit. Gilchrist vs. Moore, 7 la., 9; 
 Hill, on Rem. for Torts, 67; Newman vs. Jemie, 47 Me., 520; 
 StiUman vs. Squire, 1 Denio, 327. 
 
 The court instructs the jury, that by his plea in this case, the 
 defendant claims title to the property in himself {and in one 
 A. JS.), 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 prop- 
 erty, still, under the pleadings in this case, it is wholly unneces- 
 sary 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 plaintiff was entitled 
 to the possession of the property at the time of the commence- 
 ment of this suit. Seaver vs. Dingley, 4 Greenlf ., 306 ; Lewis 
 vs. Masters, 8 Blackf., 244; Hill, on Rem. for Torts, ^^', Smith 
 vs. McLean, 24 la., 322. 
 
 If the jury find, from the evidence, under the instructions of 
 the court, that the defendant came lawfully into the possession
 
 350 INSTRUCTIONS 
 
 of the property in controversy, then they will find foi- the 
 defendant, nnless they fnrther find, from the evidence, tliat the 
 plaintiff, prior to the coniinenceinent of this suit, made a 
 demand npon the defendant for the property, and that the de- 
 fendant refused to surrender it npon such demand; unless 
 the jury further find, from the evidence, that before the com- 
 mencement of this suit the defendant had in some manner mani- 
 fested an intention to resist the plaintiff's claim to the proj)erty, 
 or to deny his right to the possession thereof. 
 
 Wlien Demand Necessary— Pleas Xon Copit and Non Detinuit Only.— 
 
 If the jnry believe, from the evidence, that the j)i''>P^i"ty in 
 question came into the possession of the defendant with the 
 knowledge and consent of the plaintiff, then, l)efore the jilaintiff 
 could properly commence this suit, he would have to make a 
 demand on the defendant for a return of the property, and nn- 
 less it appears, from a prepondei*ance of the evidence, that he 
 did make such demand, the jury should find for the defendant, 
 nnless the jury further believe, from the evidence, that the de- 
 fendant, before the commencement 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 the prop- 
 erty by the plaintiff. Hill, on Rem. for Torts, 67; Lewis vs. 
 Masters, 8 Blackf., 244. 
 
 That if the jury believe, from the evidence, that the defend- 
 ant borrowed the property in controversy from the plaintiff for 
 a temporary use or purpose, giving the plaintiff to understand 
 that he would return the property whenever the plaintiff should 
 desire it, then the plaintiff would not be entitled to connnence 
 this snit 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 evidence, that before the commencement of this suit, 
 the defendant had done no act inconsistent with the [daintiff's 
 right to the property, or showing an intention to repudiate the 
 same.
 
 IN CIVIL ACTIONS. 
 
 351 
 
 Wrongful Taking- or Demand must be Proved. — If tlie 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, that the defend- 
 ant 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 un- 
 lawful detention by the defendant, as explained in these instruc- 
 tions. 
 
 What Essential to a Demand. — In order to make a legal demand 
 of articles of personal j)roperty 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 bring 
 replevin for the detention of such property. 
 [See Demand and Refusal.] 
 
 PLEA OF JUSTIFICATION FILED. 
 
 Replevin Against an Officer. — The court instructs the jury, that 
 if they believe, from the evidence, that the defendant, R., was a 
 constable of this county at the time of the levy of the execution, 
 offered 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 property so levied upon was then 
 the property of the defendant in the execution, then the jury 
 should find for the defendant. 
 
 The jury are instructed, that the justice's docket, introduced 
 in evidence in this case, is sufficient evidence of the rendition of 
 the judgment mentioned in the plea, and the jury should con- 
 sider that fact as j)roved. 
 
 Execution Conclusive as to Thii'd Person, or if not Disputed. — That 
 the execution with the indorsement thereon, introduced in evi- 
 dence in this case, is sufficient proof of the issuing of the execu- 
 tion mentioned in the plea, the time when the same was received
 
 352 INSTRUCTIONS 
 
 hv 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 api)car in the execution and the indorsements 
 thereon. 
 
 Exociition and Indorsements Prima Facie Evidence, Wlien. — The jury 
 are instructed, that as regards the defendants, C, D. and E. {the 
 officer and 'plaintiff fi in execution), the indorsements and return 
 of the officer upon the cxecntion read in evidence, are 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 property. Hill, on Rem. 
 for Torts, 391; Phillips vs. Elwell, 14 Ohio St., 240; Harper 
 y&. Mofft et al., n la., 527. 
 
 Justiflcation under Execution — When Demand Necessary. The jury 
 are instructed, that if they ])elieve, from the evidence, that the 
 defendant, A. B., was an acting constable in and for the county 
 of C, and that as such constable, the execution shown in evi- 
 dence 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 
 controversv, 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 
 Ijringing this suit, then the defendant would not be guilty of a 
 WTonfful taking, or of a wrongful detention. 
 
 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 AV. J., the defendant i)i the execution, owned the 
 property levied on, or had an interest therein as partner at the 
 time of the delivery of the execution to the oificer {or at the 
 time the execution was levied on the property), then the prop- 
 erty, or such interest therein, was subject to the lien of such 
 execution and to a sale under the same, and the plaintiff cannot 
 recover.
 
 IN CIVIL ACTIONS 353 
 
 Property Replevied from an Officer — Burden of Proof. — The jury 
 are instructed that the burden of proof is on the plaintiff to 
 establish, by a preponderance of evidence, his right to the pos- 
 session of the property in controversy; and if the jury believe, « .- 
 from the evidence, that the plaintiff has not established 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. 
 
 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 attachment writ 
 was levied, A. or B. had any interest in the property in ques- 
 tion, which was subject to the attachment writ, as explained in 
 these instructions, then the jury should find the right of prop- 
 erty 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 interest in the prop- 
 erty, and further, that the plaintiff was the owner of, and entitled 
 to the possession of the property at the time this suit was com- 
 menced, 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. 
 
 Plea, Property in a Strang-er. — The court instructs the jury, 
 that the defendant in this case, with his other pleas, has pleaded 
 property in himself, and also in one A. B. ; and if the jury be- 
 lieve, 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 j)roperty in the defendant, or 
 in the said A. B., as the fact may be found by the jury. 
 
 Possession Evidence of Title. — The court instructs the jury, tnat 
 under the issues in this case, the burden of jd roving property in 
 himself, so far as the right of property is concerned, is upon the 
 plaintiff; and if possession of the property has been shown by 
 
 23
 
 354 INSTRUCTIONS 
 
 the evidence to liave been witli 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. 15. Hill, on Pveni. for 
 Torts, 62; Martin vs. Hay, 1 Black., 291. 
 
 Lien of Execution by Statute. — The jurv 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 exe- 
 cution came into the hands of the officer, and that no sale or 
 transfer of such property, by the said A. B., after that time, 
 could destroy or affect such lien. And if the jury believe, from 
 the evidence, that the alleged sale and delivery of the property, 
 bv A. B., to the })laintift", 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. 
 
 Fraudulent Sale. — If the jury believe, from the evidence, that 
 the property in (piestion 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 col- 
 lection of their del)ts, and that the plaintiff 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 credit- 
 ors, 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 execu- 
 tion, this is prima facie evidence of ownership in him. And if' 
 the jurv furtlier l)elieve, fi-oiii the evi(U'nce, that while the 
 plaintiff was so in possession the defendant took tlie same from 
 him, then the jury should 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
 
 IN CIVIL ACTIONS. 355 
 
 from C. to the plaintiff, was made with a view, on the part of 
 C, of hindering, delaying, or defranding his creditors, and that 
 the plaintiff knew, or had good reason to know, of such fraudu- 
 lent purpose, at the time he purchased the property. 
 [See Fraud as to Creditors.] 
 
 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 execution, in good faith, for 
 a valuable consideration, and on the same day took actual pos- 
 session of the property, then, although the jury may further 
 believe, from the evidence, that he afterwards loaned the prop- 
 erty back 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 plaintiff's title to the property, 
 nor make it subject to the execution. 
 
 Growing Crops When 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 regarded as belonging to the real 
 estate, and will pass with the conveyance of the land to the 
 purchaser, unless they are expressly reserved in writing. 
 
 Levy on Crops and Taking Possession. — Although the law requires 
 an officer, 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 requires him to take such possession 
 thereof, as the article, from its nature, will reasonably admit of; 
 and if the jury believe, from the evidence 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 presence, and notified the defendant in the execution that 
 lie had taken the crops, under the execution introduced in 
 evidence, this would be a sufficient levy on the property in 
 question.
 
 356 INSTRUCTIONS 
 
 Building Personal Property, When. — The court instructs tlie jury, 
 that where a l)uilding is owned by one person, and the hind on 
 which it stands is owned by another, then the building is per- 
 sonal property; and it will always remain personal property 
 until the ownership of the land, and that of the building, unite 
 in the same person. 
 
 The jury are insti-ucted, that where one wrongfully places his 
 building upon the lot of anotlicr, in such a way as to attach it to 
 the ground, the Iniilding will belong to the owner of the land; 
 but where one rightfully 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; Adams vs. 
 Goddard, 48 Me., 212; 1 Hill, on Eeal Prop., 5. 
 
 The jury are further instructed, that 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. 
 
 The court instructs the jury, that, to make a house a part of 
 the real estate, it is not necessary that it should be so affixed that 
 detachiuff it will disturb the earth, or rend anv i)art 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 will 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 l)uilding in (juestion stands, and that 
 M., as the tenant of II., placed the building on the land with 
 It.'s consent, and with the understanding or agreement with II. 
 that M. might remove the same at the expiration of his lease, 
 then the building would be personal property, and it would not 
 be conveyed by a conveyance of the land, so long at least as M. 
 r.nd those holding under him ccmtinued in possession of the 
 ])roperty, under the lease. Cooley on Torts, 306; Barnes vs. 
 Barnes, 6 Vt., 3SS; Smith vs. Benson, 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
 
 IN CIVIL ACTIONS. 357 
 
 it stands, still it may be personal property, and owned by a per- 
 son who is not the owner of the land ; and the building is per- 
 sonal property when it is erected by the builder, with his own 
 means, and for his own use on the land of another, in pursuance 
 of an understanding 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 possession 
 of the land on which the building stands, under a lease from R., 
 Mnth the privilege of removing any improvements placed thereon 
 by himself at or before the expiration of the lease; and further, 
 that M. continued to liold over and occupy the premises, either 
 by himself or his tenant, after the exj^iration of the lease, with 
 the knowledge and consent of R., then the law would presume 
 that such holding over was ujion 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 plaintiff 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 fix- 
 ture 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 Toils, 469; Graff y&. O' Conner, 16 111., 421. 
 
 Lien of Judgment and Chattel Mortgage. — The jury are instructed, 
 that a judgment is not a lieu upon personal property of the 
 debtor; an execution becomes a lieu 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 bona fide 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 {<)r was levied on the propertij),
 
 358 INSTRUCTIONS 
 
 then the mortgage will hold the property in preference to the 
 execution. 
 
 If the jury believe, from the evidence, that the plaintiffs only 
 claim to the property in (pu'stion was derived from the mortgage 
 in evidence, and that the property was allowed to remain in the 
 possession of the mortgagor after the ex})iration of the time for 
 the payment of the debt secured by said mortgage, and after a 
 reasonable time for the mortgagee to take possession of the 
 property, and that while it was so in the possession of the mort- 
 ("•a-'-or, the execution introduced in evidence was placed in the 
 hands of the officer {or was levied on the property)^ then the 
 law is, that the property was liable to such execution. WJdsler 
 vs. lioherts, 10 111., 274. 
 
 Trover— Property Not Found. — The jury are instructed, that if 
 they believe, from the evidence, that the plaintiif was the t)wner 
 of the property in question, and entitled to the possession thereof 
 before and at the time of the commencement 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 
 2)roperty, or any part of it, was not found or taken on the 
 replevin writ, the plaintiff is entitled to recover in tliis suit the 
 value of the property not so found or taken, and such damages, 
 if any are proved, as the plaintiff has sustained by the wrongful 
 taking and detention {or hy the wrongfd detention) oi the re- 
 mainder of the proj^erty. 
 
 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 jdaintiff had no right to the posses- 
 sion of the property, as exphiined in these instructions, when the 
 replevin writ was issued, then he cannot recover for the value of 
 the property in controversy in this suit. 
 
 Bailee Cannot Deny bailor's Title. — The court instructs the jnry, 
 tliat if they Itelievc, from the evidence, that the defendant bor- 
 i-owed the property in controversy from the plaintiff for a tem- 
 porary use or purpose, witli the understanding that he would 
 rctiini the property wlien demanded, and that afterwards, and
 
 IN CIVIL ACTIONS. 359 
 
 before the commencement of this suit, the plaintiff made snch 
 deaiaud, and that, upon snch 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. Wreim, 
 50 111., 222. 
 
 The court further instructs the jury, that if they believe, from 
 the evidence, that the defendant borrowed the property in con- 
 troversy from the plaintiif , then the defendant became the bailee 
 of the plaintiff, and he cannot set up title to the property in 
 himself in this action to defeat the plaintiff's right of recovery ; 
 and if the jury further believe, from the evidence, that before 
 the commencement of this suit, the plaintiff demanded the prop- 
 ei-ty from the defendant, and that he refused to give it up, claim- 
 ing it as his own, then the jury should find the property in the 
 plaintiff, and the defendant guilty of a wrongful detention. 
 
 STOCK DISTRAINED. 
 
 Right to Distrain Cattle Trespassing. — The court instructs 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 premises may take such animals into 
 his possession, and keep the same until all damages, with rea- 
 sonable charges for keeping and feeding, are paid, or until such 
 occupier 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 trespass, as complained of in this suit, 
 no one was bound to fence his land against cattle that were per- 
 mitted by the owner to run at large in the public streets or 
 highways; and in such case, when cattle are allowed to run at 
 large in the public highway, the owner is bound to take such 
 measures as will prevent their escaping from the highway upon 
 the adjoining lands of others; and if they do so escape, they are, 
 within the meaning of the law in this case, wrongfully upon the
 
 360 INSTRUCTIONS 
 
 land of such other person, whether such hinds are protected by 
 a irood and sufficient fence or not. 
 
 Tlie jury are instructed, that when the cattle of one person 
 are wi-on<^fully trespassing upon the lands of another, as ex- 
 plained in these insti-uctions, 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 
 anv, together with reasonable charges for feeding and keeping 
 the same; and he has {Hoenfi/four hoiir.s) in which to notify 
 the owner that he has taken them up. 
 
 If the jury believe, from the evidence, that the cattle in ques- 
 tion either escaped from the defendant's pasture or were per- 
 mitted by him to run at large in the public highway, and while 
 so upon the public highway, they escaped therefrom, and went 
 upon the jdaintifPs land without his knowledge or consent, then 
 tlu'V were wrongfully upon such land, and the owner had a 
 i-ight, while they were there, to distrain them, by taking them 
 into his possession, and keeping the same until all damages, 
 with reasonable charges for keeping and feeding the stock, were 
 paid by the owner; provided, that within {fioenf//-four hourti) 
 from the time of taking up said stock he notified the owner that 
 he had done so. 
 
 Must be Taken Damage Feasant. — The court instructs the jury, 
 that, to warrant the distraining of cattle dainage feaxanf,\\\c 
 cattle nuist be upon the premises owned or occupied by the 
 party distraining at the time they are distrained. 
 
 The fact, if proved, that cattle may have passed over the 
 premises owned or occupied by a person, will not warrant a dis- 
 traint of the cattle after they get on to the pi-emises of another. 
 
 The court further instructs the jury, that the owner or occu- 
 pier of laud has no right to distrain {;attle found upon his prem- 
 ises for damages done at another time than the one when the 
 distraint is nuide, whether such damage was done upon the same 
 or upon other lands of the party distraining. 
 
 [See Trespass by Domestic Animals.]
 
 IN CIVIL ACTIONS. 361 
 
 SLANDER. 
 
 NO PLEA OF JUSTIFICATION FILED. 
 
 Nature of the Action. — The court instructs the jury, that slander 
 is regarded in law as a malicious wrong and injury, and an ac- 
 tion for it has as legitimate a standing in a court of justice as 
 any other action. 
 
 Malice ami Damage Presumed from Speaking Actionable Words.— 
 
 The jury are instructed, that words that impute to a party the 
 commission of the crime of {l,arcemj) are actionable in them- 
 selves, and the law presumes that the party uttering them in- 
 tended maliciously to injure the person concerning whom they 
 are spoken, unless the contrary appears from the circumstances, 
 occasion or manner of the speaking of the words. 
 
 That 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 the 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 
 declaration, 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, without just cause or excuse. 
 Smart vs. Blanchard, 42 N. H., 137 ; Lick vs. Owen, 47 Cal., 
 252; Wilson vs. ISFoonan, 35 Wis., 321; Eearick vs. Wilcox, 81 
 111., 77; Pennington vs. Meeks, 46 Mo., 217; Lidianajpolis, 
 etc., vs. Horrell, 53 Ind., 527. 
 
 If the jury believe, from the evidence, that the defendant 
 spoke and published, 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 communication, as explained in these instructions, 
 (and there is no evidence that they were so spoken in this case).
 
 3G2 IXSTRUCTIONS 
 
 The jurv ure further instructed, that in actions for slander, 
 the huv implies damages and malice from the unqualified speak- 
 ing of actionable words that are not true; and also that the 
 defendant intciKhMl the injiirv the slander is calculated to effect. 
 
 If the jury believe, from the evidence, that the defendant, in 
 speaking of the plaintiff, in the presence and hearing of others, 
 used the words, "She is a whore," or " She is a damned whore," 
 (or other actionable words charged in the declaration)^ then 
 the words are actionable in themselves, and the law implies that 
 they were used with a malicious intent to defame the character 
 of the plaintiff, and express malice need not be proved. 
 
 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 with having 
 committed the crime of, etc., then the law will imply malice, 
 and malice need not 1)e otherwise proved. 
 
 All the Words Need not be Proved. — The court instructs the jury, 
 that while it is necessary to entitle the plaintiff to recover in an 
 action of slander, that he should prove the slanderous words 
 alleo-ed 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 woi-ds in some one or more of the 
 statements of slanderous words contained in the declai-ation. 
 Hill, on Rem. for Torts, 375. 
 
 That 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 l)c proved, unless it takes them all to 
 constitute the slander charged; and in this case if the jury be- 
 lieve, from the evidence, that a sufficient number of the words 
 charjred in the declaration to amount, in their connnon meaning, 
 to a charge of {larcemj) against the plaintiff, have been proved 
 to have been spoken by the defendant, as charged in the decla- 
 ration, then the jury should find the issues for the plaintiff. 
 Baker ys, Yomiff, 44 111., 42. 
 
 Malice Deflned. — TIk; jury are instructed, that the tei-iii malice 
 has in law a two-fold signification. There is what is known as 
 nuilice in fact ami midice in law, or implied malice; in the legal
 
 IN CIVIL ACTIONS. 303 
 
 sense, malice signifies a wrongful act intentionally done, without 
 justification o-r legal excuse. 
 
 Words Presumed to be Used in their Ordinary Meaning-. — The jury 
 are instructed, that when one person utters slanderous words 
 concerning another, which, in their ordinary and common sig- 
 nification, impute the crime or offense of, etc., it must be pre- 
 sumed it was in that sense they were used, and understood by 
 the bystanders who heard them, unless other words are used at 
 the same time which limit or qualify the ordinary meaning of 
 the slanderous words used; and a defendant, when sued, cannot 
 excuse his guilty conduct by an explanation in his testimony, 
 that he did not use the words to impute the crime or offense 
 thereby indicated; provided, the jury believe, from the evidence, 
 that the defendant spoke the words, as charged. Miller vs. 
 Johnson, 79 111., 58. 
 
 Charg-e of Fornication 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 circumstances, or for 
 justifiable ends, as explained in these instructions, are slanderous 
 and actionable in themselves, and the law will imply malice 
 from the mere speaking of such words. 
 
 The court further instructs the jury, that the words, etc., 
 charged in the declaration, 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 chai-ged in the declaration, the jury should 
 find the defendant guilty. 
 
 STATUTE OF LIMITATIONS PLEADED. 
 
 Cliarge of Dislionesty — 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 plaintiff, " You are a rascal; you 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 plain- 
 tiff with having fraudulently conveyed his property with intent
 
 36-lr INSTRUCTIONS 
 
 to defraud liis creditors, or to hinder or delay them in the eol- 
 lectioii of their just (k'l)ts, then the jury shoukl find the defend- 
 ant guilty, and assess the plaintiffs damages at what tliey think 
 is iust and riirht, under the evidence in the case. Ooolev on 
 Torts, 202; NeUon vs. Borchenius, h'2 IlL, 2-30; Phillips vs. 
 Jloefc'/', 1 Penn. St., 02; Fitzgerrold vs. liedjield, 51 I'arl)., 
 484 ; Orr vs. Skofield, 50 Me., 4S3. 
 
 If the jury believe, from the evidence, that at or about the 
 time stated 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, and 
 within {one year) 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 qualification by 
 other lanjruao-e or circumstances, showing that the defendant 
 did not intend the natural and oi-dinary meaning of the words 
 used, then the jury should fiiul the defendant guilty, and assess 
 the plaintiff's damages at what they deem to be right and proj^er 
 inider tlie evidence. 
 
 Tlie jury are further instructed, that words spoken of another 
 which, in their common acceptation, charge him with selling or 
 disposing of his property with an intent to defraud, hinder or 
 delay his creditors of their just debts, are actionable in themselves 
 without showing special damage arising therefrom. The law 
 will imply both malice and danuige from the speaking of such 
 words, if the jury believe, from the evidence, that such words 
 were spoken, as charged in the declaration. 
 
 Charged of Arson by Innuendo. — 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 after- 
 wards, and within {one year) before the commencement 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 
 liave got i-id of my old house burner," or the words, " She is an 
 old house burner;" and if the jury furtlier believe, from the 
 evidence, that in the speaking of said words, the defendant
 
 IN CIVIL ACTIONS. 365 
 
 intended to convey the idea and to charge that the plaintiff had 
 wilfully and feloniously burned the said house of defendant, and 
 that the persons hearing the language so understood him, then 
 the speaking of such words would be slanderous, and the jury 
 should find the defendant guilty. 
 
 Charge of Murder, by IiiiuieiMlo. — If the jury believe, from the 
 evidence, that the defendant, within {one year) before the com- 
 mencement of this suit, in speaking of and concerning the plain- 
 tiff, 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 hav- 
 ing wilfully and feloniously caused the death of defendant's 
 father, then such words were slanderous, and the jury should 
 find for the plaintiff. 
 
 Words Must be Proved as Charged. — The Jury are instructed, that 
 to entitle the plaintiff to recover in this suit, he must prove the 
 speaking of the words alleged in the declaration ; other words of 
 like meaning, or equivalent words or expressions, will not 
 suffice. 
 
 That, 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 meaning, 
 still, if the jury further believe, from the evidence, that tlie 
 words proved are not, substantially, the same words as those 
 charged in the declaration, then the plaintiff is not entitled to 
 recover. Flinn vs. Barlow^ 16 111., 39. 
 
 That the plaintiff is not entitled to recover upon the proof of 
 the speaking of words which are only similar to, or have the 
 same meaning, as the words charged in the declaration, but ai-e 
 not the same words. She can only recover upon pi-oving the 
 speaking of the material words of some one or more of the slan- 
 derous statements charged in the declaration, precisely as there- 
 in charged. ^Yallace vs. Dixon., 82 111,, 202. 
 
 The jury are instructed by the court, that the burden of proof 
 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 evi- 
 dence, that the defendant spoke of and concerning the plaintiff
 
 3GG iNSTRrcTioxs 
 
 the slanderous eliar<]^es, or some one or more of tlie slanderous 
 charges, contained in her (k'chiration, in \\iv. precise words and 
 lani:;uai;-e in which they jire thei-ein set forth. 
 
 And, if the jury l)elieve, from all the evidence in the case, 
 that the })laintiif has failed to establish the speaking of such 
 words, by a preponderance of all the evidence, then the juiy 
 should find the defendant not guilty. 
 
 The court further instructs the juiy, that proof of the speak- 
 ing of the following words (d/i// mords different from, those 
 charged in the declaration) — if the jury lind, from the evidence, 
 that the speaking of such words has becMi proven — does not prove 
 any of the charges laid in the decdaration in this case. 
 
 The court instructs the jury, that in an action for slander, so 
 many of the words complained of must be proved as will estab- 
 lish the slander, in the precise words charged in the declaration; 
 other words of similar import, or ecpiivalent words, if proved, 
 will not sustain the action. 
 
 Words Not Spoken Maliciously. — 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 decla- 
 ration, did the hearers understand that he so intended, and was 
 the charge false? Skull vs. Raymond^ 23 Minn., GG. 
 
 The court further instructs the jury, that an action for slan- 
 der will not lie, for words spoken under such circnimstances as 
 wouhl 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 convey the charge complained of 
 in the declaration ; and in this case, though the jury may believe, 
 fi'om tlu^ evidence, that the defendant did speak the slanderous 
 words charged in the declai-ation, still if the jury further believe, 
 from the evidence, and the facts and circumstances proved on 
 the trial, that the defendant tlid not intend to impute, and the 
 hearers did not understand him to impute, to the plaintiff, the 
 offense which the words might, under other cii-cuinstances, 
 naturally import, then the jury should find the defendant not 
 guilty.
 
 IN CIVIL ACTIONS. 307 
 
 Though the jury may believe, from the evidence, that the 
 slaiidei-ous words were spoken as alleged in plaintiff's declara- 
 tion, still, if the jury further believe, from the evidence, that 
 the words were not spoken maliciously, and that the character 
 of the plaintiff has not been injured thereby, then the jury are 
 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 repeated them as something he had heard from others, 
 and without any malice towards the plaintiif, and did not intend 
 to be understood as imputing any offense to her, then the jury 
 should iind for the defendant. And it is a question for the jury 
 to determine from all the facts and circumstances 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. Cummerford vs. 3IcAvoy, 15 111., 311. 
 
 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 damages, unless the 
 anger is provoked by the very person against whom the slan- 
 derous words are used. Janch vs. JancJi, 50 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 angry at the time, 
 unless his anger was wrongfully provoked, in whole or in part, 
 by the acts or language of the plaintiff herself. 
 
 If the jury believe, from the evidence, that the defendant 
 spoke in the presence and hearing of others, of and concerning 
 the plaintiif, the slanderous words charged in the declaration, 
 then it is immaterial whether the words were uttered with or 
 without anger or passion on the part of the defendant, unless 
 the jury further believe, from the evidence, that such passion 
 was wrongfully caused or provoked by the plaintiff; and even in 
 such case, anger or passion would be no justification, it could 
 only be considered by the jury in mitigation of damages, in case
 
 308 INSTRUCTIONS 
 
 tliev find the i)lea of justification not established by a prepon- 
 dei-ancc of testimony, and find the defendant g-uilty. 
 
 Anger ill 3Iitis:ali«ii, V*licn. — The jury are instructed, that while 
 it is true, that anger or passion is not a justification for the use 
 of slanderous words, or even a mitigating circumstance, unless 
 provoked by the person against whom the slanderous words are 
 spoken; yet, if the party complaining does wrongfully provoke 
 such angei', the fact may 1)0 taken into account and considered 
 liy the jury in fixing the amount of their verdict, in case they 
 find the defendant guilty. Freeman vs. Tinsley, 50 111., 494; 
 McClintock vs. Crich^ 4 la., 453. 
 
 Though the jury ma}' believe, from the evidence, that some of 
 the slanderous words, charged in the declaration, were uttered 
 by the defendant as charged, still, if the jury further believe, 
 from the evidence, that the words were spoken in the heat of 
 l)assion, 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 c-alled 
 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 abuse, 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 consideration by the 
 iurv as mitio-atinir circumstances on behalf of the defendant. 
 
 Slanderous Words Explained. — Although the jury may believe, 
 from the evidence, that the defendant, in speaking of the plain- 
 tiff, upon the occasion referred to by the witnesses, did say, (" You 
 are a thief, you stole my corn);" still, if the jury further l)elieve, 
 from the evidence, -that he accompanied that charge with such 
 explanations as woidd s1k»\v to the l)ystan(lcrs, who heard the 
 conversation, that he onlv meant to charnje the defendant with a 
 ti-cspass, and not witli a ci'ime of larceny, then, so far as that 
 charge is concerned, the jury should find for the defendant. 
 Mitchell vs. Stromj^ 17 111., 597.
 
 IN CIVIL ACTIONS. 309 
 
 Though the jury may believe, from the evidence, that the de- 
 fendant did speak some of the slanderous words complained of, 
 still, if the jury further believe, from the evidence, that the de- 
 fendant in the same conversation, and in presence of the same 
 persons, voluntarily 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 whole 
 conversation, that the offense of {larceiiy) was not imputed or 
 charged upon the plaintiff, then such slanderous words will not 
 afford the plaintiff any ground of action in this case. 
 
 PLEA OF JUSTIFICATION FILED. 
 
 All the Words Need not be Proved. — Tiie court instructs the jury 
 that tlie plaintiff is not bound to prove the speaking of all the 
 words charged in the declaration; if the jury believe, from the 
 evidence, that the defendant s23oke of and concerning the plain- 
 tiff, in the presence of others, any of the slanderous words 
 charged in the declaration, the fair import of which would be 
 to charge the plaintiff with the crime of {larceny), then he is en- 
 titled to a verdict, unless the defendant has established the truth 
 of his plea of justification, by the evidence, in tiic minds of the 
 jury, beyond any reasonable doubt {or hy a preponderance of 
 the evidence). 
 
 Plea of Jiistiflcation, How Proyed. — The court instructs the jury, 
 as a matter of law, that where a plea of justification, in an 
 action for slander, accuses the plaintiff of a crime, the defend- 
 ant, in order to sustain the plea, must prove the guilt of the 
 plaintiff, as charged in the plea, beyond a reasonable doubt. So 
 far as the degree of proof is concerned, the plaintiff occupies 
 the same position as if he were on trial upon an indictment for 
 the offense charged. Merh vs. Gchhaenser, 50 CaL, 631; 
 Corhlcy vs. 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 incumbent 
 upon the defendant to prove everything requisite to constitute 
 the crime of {perjury) beyond a reasonable doubt. Barton vs. 
 Thoinpnon, 46 la., 30; Mott vs. Dawson, 46 la., 533. 
 
 24
 
 370 INSTRUCTIONS 
 
 The court furtlu>r instructs the jury, as a matter ol' law. that 
 in order to sustain his pleu oi" justification, in this case, it is 
 incumbent upon the defendant to prove, to the satisfaction (»f 
 the jury, beyond all reasonable doubt, that the plaintiff was 
 guilty of the crime of {perjary), as alleged in said plea. 
 
 Among the other things necessary for the defendant to prove, 
 to the satisfaction of the jury, in order to maintain the plea of 
 justification, in this case, is the fact that the plaintiff, before he 
 testified as a witness in the case of E. vs. *S'., referred to by the 
 witnesses, was sworn to testify to the truth, the whole truth, and 
 nothing but the truth, by some officer authorized by law to ad- 
 minister the oath. And if the jury find, from the evidence, 
 that the defendant has failed to prove that fact upon this trial, 
 beyond a reasonable doubt, then, as a matter of law, the justifi- 
 cation 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 
 {perjurif), 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 necessary 
 that the defendant should establish the truth of that plea beyond 
 a reasonable doubt; it is sufficient if it is established by a pre- 
 ponderance of the evidence. Cooley on Torts, 2(1 8; Elliott vs. 
 Van Buren, 33 Mich., 40; Blaeser vs. Milwaukee, etc., 37 
 AVis., 31; Knowles vs. Scribner, 57 Me., 41)5; Rothschild vs. 
 Am. Cent. Ins. Co., 62 Mo., 356; Ban- 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 tlu> j)laintiff did testify, on tlie trial of 
 E. vs. S., that the trees in (piestion were on the north side of the 
 hedge, that fact will not be sufficient to muintiiin the defend- 
 ant's plea of justification, uidess the jury fui-ther believe, from 
 the evidence, that the question of the location of said trees, with 
 reference to said hedge, was a materi.d question in the trial of 
 said cause; and, also, that the plaintiff knowingly and wilfully 
 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. ii., and that, before tes-
 
 IN CIVIL ACTIONS. 371 
 
 tifying, he was sworn by {some officer authorized to administer 
 oaths) to tell the truth, the whole truth, and nothing l)iit tlio 
 truth, and that upon said trial the said plaintiff knowingly, 
 wilfully and falsely testified that the trees in question were on 
 the south side of a hedge, and that the question of the location 
 <»f said trees, in reference to said hedge, was a material ques- 
 tion on the trial of said cause, then the defense of justification 
 is made out, and the jury should find for the defendant. 
 
 The court further instructs the jury, that if they believe, from 
 the evidence, that the plaintiff was sworn 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 justi- 
 fication, and that in so swearing he knowingly and wilfully 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 de- 
 fendant would be justified in telling the plaintiff that he swore 
 falsely on that trial, or that he swore to a lie on that trial. 
 
 [See Perjury.] 
 
 When the Plea Does Not Impute Crime. — The court instructs the 
 jury, that it is sufficient for the defendant to establish his plea 
 of justification by a pi-eponderance of evidence; and if the jury 
 believe, from the evidence, that the defendant's plea of justifica- 
 tion, 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 
 re(piire 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 alleged 
 slanderous words, in manner and form as charged in the declara- 
 tion, then the jury should find the defendant guilty, unless they 
 further find, from the evidence, that the defense of justification, 
 set up in the defendant's plea, has been established, on this trial, 
 by a preponderance of the evidence. 
 
 The court further instructs the jury, that if they believe, fro]n 
 the evidence, that the defendant spoke and published of and 
 concerning the plaintiff the slanderous words, charged in plain- 
 tiff's declaration, in manner and form as therein stated, theii the 
 law will imply malice and a consequent injury, unless the jury
 
 372 INSTRUCTIONS 
 
 further fiiul, that tlic defense of justification lius been established 
 l)y u preponderance of evidence. 
 
 Plea of Jiistiflcntion in (iood Faith. — Tlie court instructs the jury, 
 tliat, ahhough they shoukl find, from the evidence, that the de- 
 fendant in this case has not sustahied his plea of justification, 
 still, the fact that he has filed such plea, must not of itself be 
 regarded by the jury as evidence of malice on the part of the 
 defendant. JTarover vs. Ilarover, 78 111,, 412. 
 
 The court instructs the jury, that if they believe, from the 
 evidence, that the proof offered by defendant to sustain his plea 
 of justification, tended to prove said plea, tlien they should con- 
 sider that circumstance in arriving at their conclusion, as to 
 wliethcr the said ])lea was filed in good faith by the defendant, 
 and with the belief that he could sustain the same by evidence 
 
 [See Libel.] 
 
 Office of the Plea of Justilication. — The court instructs the jury, 
 tliat 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 justi- 
 fying the speaking of the words charged, docs not relieve the 
 plaintiff from the necessity of proving the speaking of the words 
 alleged. The plea of justification cannot be used to c(Miviet the 
 defendant; he is not bound to make his defense till thei-e is evi- 
 dence showing his guilt. Farnaii vs. Childs, 66 111., 54-1. 
 
 Repeating Report. — If the jury believe, from the evidence, that 
 tlie defendant is guilty of speaking the slanderous words charged 
 in tlie declaration, then the fact, if proved, that defendant gave 
 tlie statement as a report in the neighborhood, and mentioned 
 liis authority for the statement, still, these facts alone do not ex- 
 onerate him from liability. Fowler vs. Chichester^ 26 Ohio St., 0. 
 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 plaintiff, yet, 
 if the jury fiirthcv believe, from the evidence, that the defend-
 
 IN CIVIL ACTIONS. 373 
 
 ant did not originate the slander, that he merely reported what 
 some one else had said to him, or in his presence, and that he 
 acted without malice in repeating it, and that the plaintiff was, 
 in reality, in no manner injured by the slander, then the jury 
 may give nominal damages only. 
 
 [See Measure of Damages.] 
 
 TENDER. 
 
 Wliat Constitutes a Valid Tender. — As regards the plea of tender 
 filed in this case, the court instructs the jury, that to constitute 
 good tender of any amount of money, it is necessary for the 
 party indebted, al)Solutely and unconditionally, to offer to pay to 
 the other party the amount tendered in current money, such as 
 is made a legal tender b}^ 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 j^erson waives the performance of, or compli- 
 ance with, some or all of these conditions. 2 Greenlf. Ev., § 
 601, 602; Rose vs. Duncan^ 49 Ind., 269; Cothran vs. Scanlan, 
 34 Ga., 555; Hunter vs. Warner, 1 Wis., 141. 
 
 The court further instructs the jury, that to have a tender of 
 any avail, the amount tendered must be the precise sura, 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; Ileiily vs. 
 Streator, 5 Ind., 207; Pillshunj vs. Willoughhy, 61 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 
 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 exhibition of tlie money in his sight. 
 
 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, nnless 
 
 the jury further believe, from the evidence, that the defendant
 
 3 74 INSTRUCTIONS 
 
 has kept that tender cjood by bringing the money into this court 
 for the use of the })kuntiff. 
 
 To constitute a giKxl and sufficient tender, the debtor must 
 offer to pav and tender to the ci-editor the precise amount which 
 lie intends to jiay and allow the creditor to keep; he cannot 
 offer tlie 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 balance to the 
 debtor. 
 
 Burden of Proof. — Upon the question of tender, the court in- 
 structs the jury, that the burden of proof is upon the defendant, 
 and to entitle him to a verdict upon that issue, it must appear, 
 l)y a i)re})onderance of the evidence, that the defendant, before 
 the commencement of the suit, unconditionally offered to pay 
 to the })laintiff a certain definite sum in legal tender money; 
 that the money was actually produced and shown to the plain- 
 tiff; 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 tenderiMl into court for the plaintiff; 
 unless the jnry find, from the evidence, and under the instruc- 
 tions of the court, that some one or more of these requisites of 
 a good tender have been waived or dispensed with by the plain- 
 tiff, as explained in these instructions. Pulsifer vs. Shepard, 
 3G Ilk, 513. 
 
 Tender as a Gift or Present. — Though the jury may believe, from 
 the evidence, that upon the occasion referred to by the wit- 
 nesses, the defendant did ])roduce, count out and actually offer 
 
 to the plaintiff the sum of 8 , 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 
 ]>laintiff nothing; that he would make him a present of that 
 amount of money, etc. {<t)ii/ inordx (le)i>/l)uj the iiidebtedtie^^^ 
 hat ojfcrliuj a bonus), then this would not constitute a tender of
 
 IN CIVIL ACTIONS. 375 
 
 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, U23on the question of tender, 
 the juiT should find for the plaintiff, even though the jury be- 
 lieve, from the evidence, that the defendant has attempted to 
 keep such alleged tender good by paying the money into court. 
 2 Greenlf. Ev., § 605 ; Sirmnons vs. WilmoU, 3 Esp., 94. 
 
 On Condition of Receipt in Full, Etc. — Though the jury may be- 
 lieve, 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 was all oi- more than was then due thereon, 
 still, if the jury further believe, from the evidence, that that 
 tender or offer of payment was coupled with or made only upon 
 the condition that the plaintiff should give the defendant a 
 receipt in full of all demands, then this was a condition which 
 the defendant had no right to impose upon the plaintiff upon 
 such tender, and such a tender cannot avail the defendant any- 
 thing in this suit. 2 Greenlf. Ev., § 605 ; Wood vs. Jlitckcoc/c, 
 
 20 Wend., 47; Sutton vs. Hawkins, 8 C. & P., 259; 2 Pars, on 
 N. & B., 625. 
 
 Willingness to Pay, bnt no Tender. — That a mere expression of a 
 willingness or a readiness to pay, or a proposition to pay, what- 
 ever 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 defi- 
 nite, certain sum of money, and he must specify upon what de- 
 mands he proposes to pay it, whether upon any particular 
 indebtedness, or in payment of all that is due from him to the 
 party to whom the tender is made, unless the jury believe, from 
 the evidence, that the actual production of the money was dis- 
 pensed with, or waived by the creditor. Eastman vs. Rajpids, 
 
 21 la., 570; Steele vs. Briggs, 22 111., 643. 
 
 Though the jury may believe, from the evidence, that some- 
 time about, etc., the parties met and had a conversation about the
 
 370 INSTRUCTIONS 
 
 iiiuttcM-s in controversy in tliis suit, and that in that convcM-sation, 
 (lefeiulan! tolil tlu' ])laiutil't' that he was ready to pay him what- 
 ever was due, that he had the money in liis poeket, and if the 
 phiintilf wouhl 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 defendant offered to pay 
 some certain, definite sum, and that he then actually produced 
 the money in view of the plaintiff, uidess the })laintiff in some 
 manner, by act or words, dispensed with the production of the 
 money. « 
 
 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 
 })er})('tual har to any further recovery on the same account. JenJcs 
 vs. Jiui'r, 5G 111., 451. 
 
 The jury are instructed, that the la^v is, that where money is 
 offered l)y one person to another, in satisfaction of a disputed claim, 
 and the offer l)e accompanied by such acts and declarations as 
 amount to a condition, that if the money is accejited, it must be 
 accepted in full satisfaction of the claim, then the party, to whom 
 it is offered, is l)ound to understand, that if he takes the monev, 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- Vt., 201. 
 
 And in this case, if the jury believe, from the evidence, that 
 before the connnencement of this suit, in an interview between 
 j:»laintiff and defendant, the defendant offered and proposed to 
 
 pay the plaintilt s , upon condition that he would acce'pt 
 
 the same in full payment of the demand sued for in this suit, 
 and that he would pay the money upon no other condition, 
 claiming that he owed the plaintiff no more than that sum; and 
 if the jury I'urtliei- Ik-Tu'vc, from the evidence, that the plaintiff" 
 accepted, and took the money under that offer, then he must be 
 deemed to have taken the money in full payment and full satis- 
 faction of such demands, no matter what ])rotests or objections to 
 SO receiving the money he may have made at the tim(^
 
 IN CIVIL ACTIONS, 
 
 377 
 
 Specifying Objection to Acceptance, a Waiver, Etc. — The court in- 
 structs the j ury, 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 cannot, after suit is 
 brought, raise other objections which might have been easily 
 remedied at the time, if they had been made then. Stohes vs. 
 Rechnagel, 38 N. Y. Sup. Ct., 368; ^Yhelan vs. Reilley, 61 
 Mo., 565. 
 
 The jury are instructed, as a matter of law, that when one un- 
 dertakes 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 informal- 
 ities in the mode or manner of making the tender. ^Yhelan vs. 
 JReilley, 61 Mo., 565. 
 
 If the jury believe, from the evidence, that the plaintiffs were 
 the owners of the property in question, and that the defendants 
 had the same, claiming a lien thereon, for {freight, etc.), and 
 that they refused to deliver up the goods unless the plaintiff's 
 would pay them an amount larger than the jury believe, from 
 the evidence, they were entitled to demand, and so told the plain- 
 tiffs, or their agent, then no tender of any amount was neces- 
 sary; provided, the jury believe, from the evidence, that the 
 plaintiffs were ready and offered to pay the amount that was 
 actually due. 
 
 [See Trover.] 
 
 Express Waiver of Production of the Money. — If the jury believe^ 
 from the evidence, that at some time before the commencement 
 of this suit, the plaintiff and defendant met and talked over the 
 matter of the claims sued on in this case, and, that upon that oc- 
 casion, 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 his 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
 
 378 INSTRUCTIONS 
 
 of the (lefeiulant, of actually producing, exhibiting and offering 
 thc! luuney to the plaintiff. 
 
 Tender Kept Good. — If the jury believe, from the evidence, that 
 prior to the coinniencenient of this suit, the defendant tendered 
 to the plaintiff, or to the person authorized l)y him to collect the 
 
 account sued on in this 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 i)aid to tlie plaintiff, or to be brought into this court on ap- 
 peal, if an appeal should be taken, and that the same was sent 
 by the justice to this court ujxui the appeal, and has since 
 remained here, subject to the order of the i>laiiitiff ; these facts 
 constitute a good tender, and upon that issue the jury should 
 find for the defendant. 
 
 If the jury l)elieve, from the evidence, that before the com- 
 mencement of this suit the defendant made a tender of ^ 
 
 in payment of the demand sued upon, and tliat he has kept that 
 tender good, as explained in the former instructions in this case, 
 then, to entitle the plaintiff to recover, lie must show, by a pre- 
 ponderance 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. 
 
 Tender Alter Suit Brought. — If the jury believe, from the evi- 
 dence, that sometime on, or about, etc., and since the commence- 
 ment of this suit, the defendant, by his attorney, tendered to the 
 ])laintiff in payment of the demands now in (piestion, the sum of 
 
 ^ for such debts and the costs incurred in the suit uj) to 
 
 that time; and further, that at that time there was ^\o more 
 
 than the said sum of ^ due to the plaintiff including 
 
 such costs; and further, that the defendant has kept that tender 
 
 irood bv paving: the said sum of S into this court for the 
 
 use of the plaintiff; then, upon the (piestion of tender, the jury 
 should find a verdict for the defendant. Barnes vs. Greene, 30 
 la., 114.
 
 IN CIVIL ACTIONS. 379 
 
 TRESPASS. 
 
 INJURIES TO THE PERSON. 
 
 Assault Defined. — The court instructs the jury, that every per- 
 son has a right to complete and perfect immunity from hostile 
 assaults that threaten danger to his person — a right to live in 
 society without being unnecessarily or wrongfully pnt in fear of 
 personal harm; and an assault is an attempt with unlawful force 
 to inflict bodily injury upon another, accompanied with the ap- 
 parent present ability to give effect to the attempt if not pre- 
 vented. Cooley on Torts, 160. 
 
 That whoever attempts to strike, touch or do any violence to 
 another, however small, in a wanton, wilful, angry or insulting 
 manner, having an intention and an apparent present ability to 
 do some violence to such person, is guilty of an assault. 
 
 Assault and Battery Defined. — The jury are instructed, that an 
 assault and battery consists in an injury actually done to the 
 person of another in an angry or revengeful, rude or insolent 
 manner. Any unlawful beating of another, however slight, is 
 an assault and battery ; and the degree of bodily pain and in- 
 jnry, if the assault and battery are proved, is only important as 
 affecting the measure of damages. Cooley on Torts, 162. 
 
 If the jury believe, from the evidence, that the defendant 
 sometime on, or about, etc., struck and kicked the plaintiff, as 
 alleged in plaintiff's declaration, without any sufficient provoca- 
 tion 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 
 for 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
 
 3S0 INSTRUCTIONS 
 
 violence used ])y tlio defeiulaiit were no more than a reasonable 
 man would have deemed reasoiiahly necessary In such defence 
 
 Plaintiff's First Assault— Plea ol" (ieneral Issue Only. — The jury are 
 instriu-red, tliat under the })k'adings in this case, even if you 
 lind the plaintiff made the lirst assault, tliat fact cannot he con- 
 sidered 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 plaintiff's first assault can only be considered in mitigation 
 of damages. 
 
 The court instructs the jury, that under the pleadings in this 
 case, the only question for the jury to determine is, whether the 
 defendants, or cither 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 1)6 claimed, as a justification for such assault by the de- 
 fendant or defendants, that the plaintiff made the first assault. 
 1 Chitty on Plead., 501; 2 Greenl. Ev., § 95 
 
 AidiusT, Abetting, Etc. — The court instructs the jury, that a per- 
 son who encourages, advises, aids, or abets an unlawful assault 
 and battery, is liable for all the damages directly resulting 
 therefrom. And in this case, if the jury believe, from the evi- 
 dence, that the defendant, A. B., unlawfully assaulted and 
 injured the plaintiflF, as alleged in the declaration, then, if the 
 jury further believe, from the evidence, that the other defend- 
 ants, or either of them, aided, abetted, advised, or encouraged 
 such assault, by the said A. B,, the jury should not only find the 
 said A. B. guilty, but they should also find such of the other 
 defendants guilty as they believe, from the evidence, aided, 
 abetted, advised, or encouraged the commission of such assault. 
 
 The jury are further instructed, that if several persons commit 
 an unlawful assault and battery upon the person of another, 
 then each person who participates in such assault is guilty, ami 
 liable to the party injured for all the damage he may sustain in 
 consequence of such assault.
 
 IN CIVIL ACTIONS. 381 
 
 And if any one incites, advises, or encourages an nnlawful 
 assault and battery, then he is also liable as principal, and to the 
 same extent as though he had actually particij>ated in commit- 
 ting the assault, and inflicting the injury. Cooley on Torts, 133, 
 125; Barden vs. Felrh, 109 Mass., 154; 2 Hill, on Torts, 293. 
 
 The jury are instructed, that 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 intend 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 lilierty to enforce his remedy 
 against all, or against any one or more of the number. Pcige vs. 
 Freeman, 19 Mo., 1:21; ^Y^i<J]^t vs. Lathrop, 2 Ohio, 33; 
 Turner vs. Illtchcocl'., 20 la., 310. 
 
 Evil Intent or Negligence Keqnh-ed. — 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 inili(;ting the injury complained of, was guilty of some wrong 
 or evil intent, or want of care and prudence; and if the jury 
 l)elieve, from the evidence, that the defendant struck the blow 
 without any wrong or evil intent, or want of reasonable care and 
 prudence, they should find the defendant not guilty. 
 
 If the jury believe, from the evidence, that the defendant 
 struck the 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, 1(34. Paxton vs. Boyer, 67 III, 132. 
 
 Expelling Trespasser. — The jury are instructed, that no one has 
 a right to go upon the premises of another, even though it be his 
 ofiice, store, or place of business, after the owner has forbidden 
 him to do so. 
 
 The jury are further instructed, as a matter of law, that if a 
 ]>ei'son enters ujjon the possession of another, and is requested to 
 depart and refuses to do so, the owner of the premises may law-
 
 382 INSTKl'CTIONS 
 
 fullv eject liim therefrom; provided, he uses no more force 
 than is reasonably necessary for that purpose. 1 Hill, on Torts 
 186; Woodmcm vs. Jlowell, 45 111., 8(57; McCarttj vs. Fre- 
 mont, 23 Cal., 196; Ilarrisoti vs. Harrison, 43 Vt., 417; 
 Addison on Torts, 793. 
 
 Kepclliii!? 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 reasoua])ly necessary defense of his 
 own person, after having been lirst assaulted by the jilaiiitiff, 
 and that he nsed no more force than was apparently necessary 
 for such defense, then the jury should find the issues for the 
 defendant. 
 
 The jurv are further instructed, that while the law will not 
 excnse or justify the use of more force than is reasonably neces- 
 sary in self-defense, and to prevent receiving bodily harm, still, 
 the law does make a reasonable allowance for the iiilinuity of 
 hnman judgment nnder the influence of sudden passion or prov- 
 ocation, and it does not require men to measure with mathemat- 
 ical exactness, the degree of force necessary to repel an assault. 
 The jurv must judge from all the facts and circumstances, 
 proved on the trial, whether the defendant did assault the plain- 
 tiff, and whether he did nse more force and violence than was 
 reasonably necessary under the circumstances. 
 
 In Defense of Possession. — That a person in the actual, peace- 
 able 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 th(i 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 ihousi) 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 defendant, then the defendant 
 had a right to prevent such entry by using force, and to use so 
 nnich force as was reasonably necessary for that purpose. 
 
 Self Doli'iise— Excessive Force. — Though tlio jury should believe, 
 from the evidence, that the pluintiif made the first assault upon
 
 IN CIVIL ACTIONS. 383 
 
 the defendants, or some one or more of tliem, still, if they 
 further believe, from the evidence, that the defendant, when so 
 attacked, repelled plaintiff's assault with more force and vio- 
 lence, and did more injury to tlie plaintiff, than was reasonably 
 necessary for their own protection from injury at his hands, 
 then, as a matter 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. 
 
 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 threatened 
 that he was going 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 vio- 
 lence 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 defend- 
 ants would in law become the aggressors, and you should find 
 such defendant, or defendants, guilty. 
 
 That 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 mathematical 
 exactness the degree of force necessary to repel an assault, still, 
 it does require all men, even under the influence of sudden pas- 
 sion, to exercise reasonable discretion and forbearance in the in- 
 fliction of injuries upon the person of another. And, in this 
 case, though the jury may believe, from the evidence, that the 
 plaintiff first made an attack upon the defendants, or some one 
 of them, still, if you further believe, from the evidence, that in 
 repelling such attack, the defendant, or either of them, used a 
 deL''rcc of force and violence towards the plaintiff greater than
 
 SS'-i INSTRUCTIONS 
 
 was apparently and reasonably necessary to repel sneli attack, 
 and thereby caused unnecessary injury to the iihiintill, 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 evi- 
 dence, 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 Iiim with a {hatchet),. stiU, if the jury further believe, 
 from the evidence, that the defendant used more force and vio- 
 lence, tlian M'as apparently and reasonably necessary to prevent 
 injury to himself, then such excess of force would be unhiwful, 
 and the defendant, as to such excess, would be guilty of an un- 
 lawful assault ujion the plaintiff. 
 
 Drimkeniiess no Justification. — Although the jury may l)elieve, 
 from tlie evidence, tluvt the defendant was drunk at the time he 
 assaulted, and kicked, and struck, the plaintiff, if such assault- 
 ing, kicking and striking have been ju'oved, still, the fact of 
 drunkenness alone would be no excuse or justification for such 
 assault. 
 
 Words of Provocation— Mitig^ation of Damages. — That while words 
 of provocation do not justify an assault and battery, they may 
 properly be considered in mitigation of damages; and if the 
 jury believe, from the evidence, that just before the assault com- 
 plained of, the plaintiff used words to the defendant calculated 
 to provoke a breach of the peace, and menaced the defendant 
 with his fists, then such facts and circumstances may be consid- 
 ered by the jury in mitigation of damages, in case they find the 
 defendant guilty. 1 Hill, on Torts, 185; Keijes vs. Devlin, 3d 
 E. D. Smith, 518 ; Ireland vs. Elliott, 5 Clarke (la.), 478 ; Suggs 
 vs. Anderson, 12 Ga., 4(!1. 
 
 Words of Provocation no Justification. — If the juiy believe, from 
 the evidence, that the defendant committed the assault and bat- 
 tery complained of, in anger, caused by words spoken by the 
 plaintiff; tlicn the jury are instructed, as a matter of law, that 
 words *alone do not excuse or justif}' an assault and l)atteiy ; they 
 can onlv go in mitigation of damaires. 
 
 I/O c o
 
 IN CIVIL ACTIONS. 385 
 
 If the jury believGj from the evidence, that the plahitiff, im- 
 niediately 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 de- 
 fendant guilty. 
 
 Preponderance of Evidence Sufficient. — That in this action, the f)lain- 
 tiff is only required 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 con- 
 sidered by them, in determining whether or not the defendant 
 is guilty. Miller' vs. Balthasser, 78 111., 302. 
 
 FALSE IMPKISONMENT. 
 
 What 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 suffi- 
 cient to show that the defendant, at any time or place, in any 
 manner restrained the plaintiff of his liberty, or detained him 
 in any manner from going Avhere he wished, or prevented him 
 from doing what he wished; provided, this is done without legal 
 authority, as explained in these instructions. Cooley on Torts, 
 169; Brushaher \&. Stagemayin, 22 Mich., 266; 2 Addison on 
 Torts, 697; Hawk vs. Eidgway, 23 111., 473; Bonesteel \'&. 
 Bonesteel, 28 Wis., 245. 
 
 If the jury believe, from the evidence, that the defendant met 
 the plaintiff at S., and took the plaintiff into his custody, and 
 there kept him, 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 the declaration, and the jury 
 should find for the plaintiff; unless the jury further find, from 
 the evidence, under the instructions of the court, that the de- 
 fendant was warranted in law in making such arrest, as explained 
 in these instructions. Hatch vs. Ridytvay, 33 111.,. 473. 
 
 The jury are instructed, that to constitute an arrest and im- 
 prisonment, it is not necessary that the party making the arrest 
 
 25
 
 3St) INSTRUCTIOXS 
 
 should actually use violence or force towards the party arrested, 
 or that he should even touch his hody. If he profess to have 
 authority to make the arrest, and he commands the person, hy 
 virtue of such pretended authority, to go with him, and the per- 
 son obey the order, and they walk together in the dii-ection 
 pointed out by the person claiming the right to make the arrest, 
 this is an arrest and imprisonment within the meaning of the 
 law. 2 Addison on Torts, § 799; Cooley on Torts, 169. 
 
 In order to constitute an arrest, an a(;tual laying on of the 
 hands, or personal violence, is not nei;essary; it is simply neces- 
 sary that the arrested party be within the control of the officer 
 or other person making the arrest, and sulnnits himself 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. 
 
 That any deprivation of the liberty of another, without liis 
 consent, whether it be by actual yiolence, threats, or otherwise, 
 constitutes an imprisonment within the meaning of the law. 
 
 Who Liable as Joint Trespassers. — The court instructs the jury, 
 that the law is, that all parties who engage in making an illegal 
 or unlawful arrest, are trespassers; and if the jury believe, from 
 the eyidence, that the defendants, or either of them, restrained 
 the plaintiff of his liberty, as charged in plaintiff's declaration 
 and without authority of law, as explained in these instructions, 
 then such ])ersons are liable to the plaintiff in this action. 
 
 If the jury believe, from the evidence, that the defendants, or 
 either of them, arrested the plaintiff, as charged in the declara- 
 tion, without lawful authority for making such arrest, as ex- 
 plained in these instructions, then your verdict should be for the 
 plaintiff, and against such of the defendants as are shown, by the 
 evidence, to have participated in making the arrest. 
 
 If the jury believe, from the evidence, that A. B., one of the 
 defendants and he alone, assumed the immediate control and de- 
 tention of the j)laintiff at the time in (]Ucstion, still, if you further 
 believe, from the evidence, that the other defendants, or any of 
 tliem, were then present, acting in coTicert with the said defendant, 
 A. B., and were wrongfully inciting him to arrest or imprison 
 the plaintiff, then such other defendant or defendants will be
 
 IN CIVIL ACTIONS. 387 
 
 equally liable with the said A. B. ; provided, you find him guilty, 
 under the evidence and instructions of the court. 
 
 Whea 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 testified to by the plain- 
 tiff, 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. Williams, 4 Denio, 295; Abhott vs. Kimball, 
 19 Vt., 551; Smjdacker vs. Brosse, 51 111., 357. 
 
 The court further instructs the jury, that 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. 
 
 The jury are instructed, that to warrant a verdict of guilty 
 against the defendants, L. and R., the jury must believe, from 
 t'.ie 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 ai-resf since it was 
 made ; and if neither of these things appear to be proved by a 
 preponderance of the evidence, then the said defendants, L. and 
 R., should be acquitted. 
 
 Part of Defendants Only Guilty— Form of Verdict.— If the jury be- 
 lieve, from the evidence, under the instructions of the court, 
 that some of the defendants are guilty of the trespasses 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 defendants who are so proven to be guilty, and, as to the 
 other defendants, that they are not 'guilty, and, in either case, 
 mentioning the defendants by name.
 
 3S8 INSTRUCTIONS 
 
 Good Faith in Mitis^atlon of Damacres. — If, from tlie evidence, nndoi- 
 tlie instructions of the court, the jury find the defendants, or 
 any one of them, guilty, as charged in tlie declaration, still, if 
 you further find, fi-om the evidence, that in making the arrest 
 complained of, such parties, in good faith and without malice, 
 were only pursuing what they supposed were their 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. 
 
 Exeuiplary Damajres. — If the jury find the defendants, or any 
 of them, guilty of the arrest charged in the declaration, and if 
 you further find, from the evidence, that such arrest was mali- 
 ciously and wantonly made, then, in assessing the plaintiffs 
 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 damages actually suffered 
 by him, but will also afford a wholesome 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 
 lier age or her infirmities, they may assess exemplary dam- 
 ages against the defendants, or such of them as the evidence 
 shows are guilty, as charged in the declaration. 
 
 The court instructs the jury, that 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. 
 
 [See Measure oj Damages.]
 
 IN CIVIL ACTIONS. 389 
 
 INJURIES TO PERSONAL PROPERTY. 
 NO PLEA OF JUSTIFICATION FILED, 
 
 What Constitutes Trespass, Etc. — The court instructs the jury, that 
 the gist of this action is tlie unlawful (taking and carrying away 
 of the personal property of the plaintiff, from his possession, hy 
 the defendant); and if the jury believe, from the evidence, that 
 at the time of the alleged trespass, the plaintiff was the owner 
 of the property in question, and had it in his possession, and 
 that the defendant, without the consent of the plaintiff, and 
 against his will, took the property from the possession of the 
 plaintiff and converted the same to his own use, then the jury 
 should find the issues for the plaintiff. 
 
 What Possession Sufficient. — The court instructs the jury, that a 
 trespass to personal property consists in the unlawful disturbance, 
 by force, of another's possession of such property, and in order 
 to sustain the action it is only necessary that the plaintiff show 
 that, at the time of the alleged trespass, he was the general owner 
 of the property, and then in the actual possession of it, either by 
 himself, his agent, or servant, and, further, that the defendant 
 unlawfully interfered with 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. Brysoii^ 74 111., 420; 
 Cooley on Torts, 436; Addison on Torts, § 442; 1 Hill, on 
 Torts, 501. 
 
 In order to maintain an action for trespass to personal prop- 
 erty, it is sufficient 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 possession ; 
 and that the defendant unlawfully, and without right, interfered 
 with or disturbed such possession, either by injuring the prop- 
 erty or by taking it and carrying it away, against the will of the 
 person so in possession. Miller vs. Kirhy, 74 111., 242 ; Cooley 
 on Torts, 436 ; Addison on Torts, § 442 ; 1 Hill, on Torts, 501. 
 
 Possession by Agent. — If the jury believe, from the evidence, 
 that at the time of the alleged trespass the plaintiff was the
 
 390 INSTRUCTIONS 
 
 owner of the (properft/) iu questit)n, and was in the possession 
 of it, hv himself, his agent, or servants, and that the defendant 
 took and cai-ried 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 possession 
 of his {brother), as his agent or servant, then the possession of 
 the (hrothei") was the possession of the plaintiff; and if the jury 
 further believe, from the evidence, that while the property was 
 so in the possession of the plaintitf, the defendant took and 
 carried it away, as charged in the declurution, the jury should 
 find the defendant guilty. 
 
 Possession as Against a Wrous?-Doer. — That a person whcj is in the 
 actual peaceable and exclusive possession of personal property, 
 without showing any other right, has a sufficient title in the 
 property to nuii'.itain trespass against one who, with force, inter- 
 meddles with such possession without showing any right or title 
 to the property, or to the possession thereof. Cooley on Torts, 
 43G; Addison on Torts, § 442; Scott vs. Bryson, 74 III, 420; 
 Miller xs.Jurbf/, 74 111., 242. 
 
 Special Property Defined. —The court instructs the jury, as regards 
 the term "special property," that a person who is not the gen- 
 eral owner of personal pro])erty, but has it in his possession, 
 with the right to such possession for the time being, even as 
 against the general owner, is deemed in law to have a special 
 property in the property so in his possession, and such a person 
 may maintain trespass against anyone who unlawfully, with 
 force, interferes or meddles with such possession. 
 
 PLEA OF .TI'STIFICATION FILED. 
 
 Intent Immaterial. — To render a person guilty of trespass to 
 personal pro})erty it is not essential that he should intend to do 
 a wrongful act. It is enough if ]\v wilfully or negligently and 
 unlawfully, by force, interfere with personal propei'ty in the 
 actual, ])eaceable and exclusive possession of another, without 
 the consent, and against the will, of the latter.
 
 IN CIVIL ACTIONS. 391 
 
 Acts, Prima Facie Trespass. — The law is, that when the rights of 
 private pro})erty are invaded by one whose acts would constitute 
 a trespass, unless he is protected by legal authority, then it is 
 incumbent uj)on such person to show, by a preponderance of 
 evidence, that he was justified by legal authority 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 oflicial duty, but authority of law for the 
 act complained of must exist, or he will be a trespasser. Lin- 
 hlom vs. Ramsey, 75 111., 246. 
 
 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 {horse) from his possession, and 
 (within a day or two thereafter), drove and used the said {horse), 
 for his own pleasure and profit, and while using the {horse), wil- 
 fully and wantonly, or without reasonable care and caution, drove 
 the said {horse) at an unreasonable rate of speed, and overheated 
 and thereby injured the said {horse), then the jury should find 
 the defendant guilty of trespass in the original taking of the 
 property; although the jury may further believe, from the evi- 
 dence, that the defendant was at the time a constable, having in 
 his hands to serve, the execution introduced in evidence, and that 
 he took said {?torse) by virtue of said execution. 
 
 Justiflcation by au Officer— Writ of Restitution. — The court instructs 
 the jur3% as a matter of law, that the papers in the case of {M. 
 JB. vs. J.W^, in the justice's court, and introduced in evidence 
 in this case, authorized the constable, who served the writ of res- 
 titution in that case, to use so much force as was necessary to re- 
 move the plaintiff 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 this case, and 
 that the trespasses complained of are the acts done in execution 
 of said writ, and that the constable W., in executing the writ,
 
 392 INSTUUCTIOXS 
 
 used no more ft)rce than was necessary in roniovini^ tlie plaintifl' 
 and his family and <2;()ods from the premises, descrihed in the 
 writ, they slionkl tind the defendants not i^nilty. 
 
 The court instructs the jury, that the papers in the case of {Jf. 
 B. vs. ./. IF!), in the justice's court, and introduced in evidence 
 in til is case, authorized tlie constable, who served the writ of res- 
 titution in that case, to use so much and no more force than was 
 necessary to remove the plaintiff in this suit, his family aTid 
 property from tlie premises, described in that writ. 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 
 this case, and that the constable, W., in executing the writ, used 
 more force than was necessary, in i-emoving the plaintiff and his 
 family and goods, and thereby unnecessarily injured the plain- 
 tiff or his property, the defendant, 15., would not be guilty of 
 such excess of force or injury, unless it appears, from the evi- 
 dence, that he oi-dered, advised or assisted in such excess of force 
 and injury, or afterwards approved of the same. 
 
 Proporfy Taken on Exeeutum. — If the jury believe, from the evi- 
 dence, that before the execution, introduced in evidence in this 
 case, came into the hands of the said defendant, 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 consta- 
 ble, seized and took said property from the possession of the 
 plaintiff, upon said execution, he would be guilty of trespass in 
 taking said property; and if either of the other defendants are 
 shown, by the evidence, to have advised, directed, or aided the 
 said F., in taking the said property, then the jury should find 
 such other defendants also guilty of said trespass, ecpially with 
 the said F. 
 
 [See Replevin and Fraud as to Creditors.] 
 
 What Constitutes a Levy. — The court instructs the jury, that to 
 constitute a valid levy upon personal property, it nmst be with- 
 iti tlie power and control of the olficer when the levy is maih^; 
 a,:id he must take it into his possession within a reasonable time
 
 IN CIVIL ACTIONS. 393 
 
 thereafter; and when the character of the property will admit 
 of it, in such an open, public and unecjui vocal manner as to ap- 
 prise 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. 
 
 That 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 nuist, to affect third persons, take the property into his pos- 
 session as soon as it can conveniently be done. 
 
 The jury are instructed, that it is not a sufficient levy of an 
 execution on personal property, 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 
 property is before them ; the officer must also take the property 
 into his possession. Ilavely vs. Lowry, 30 111., 446. 
 
 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 subseqent execution. Davidson vs. Wal- 
 dron, 31 111., 120. 
 
 That the law will not sustain a levy which is only colorable, 
 and designed to shield the property from the claims of other 
 parties — and in this case, though the jury may believe, that the 
 execution in question was levied, on tiie property in controversy, 
 at the time indorsed on the execution; still, if the jury further 
 believe, from the evidence, that such levy was not made in good 
 faith, and with a bona fide intention of satisfying the said exe- 
 cution out of said property, but that, with the knowledge and 
 consent of the plaintiff's in the execution, the said levy was made 
 for the purpose of covering up said property, and keeping it for 
 the benefit of the said {defendant in execution), then such levy 
 
 was absolutely void, as against the other creditors of the said , 
 
 and the jury should so find, in determining the rights of the 
 parties in this suit.
 
 394 INSTKUOTIONS 
 
 Officers Selling Growing Crops. — If tlio jury hclieve, from the 
 evidence, iiiicler the instructions of tlie court, that the defendant, 
 F., was guiUy of trespass, in maimer and form as aUeged in the 
 declaration, in icNviiig upon and sellini^ the property in ques- 
 tion, and tliat the defendant, !>., hought the property at such 
 sale, and took it and carried it away, claiming it under such 
 sale, then B. would also be guilty of trespass jointly with said 
 F., although such taking and currying away was done at a sub- 
 sequent time. 
 
 If the jury believe, from the evidence, and under the instruc- 
 tions of the coiu't, tliat the defendants, or either of them, levied 
 upon and sold the property in question, and, in so doing were 
 guilty of trespass, as charged in the plaintiff's declaration, and 
 that the defendant, B., after the sale, entered on the premises 
 described in the jilaintiff's declaration, and carried avray 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 evi- 
 dence, to have conducted, nnxnaged, aided or advised said sale. 
 
 Landlord Liable— Seizure Under Distress Warrant. — The court in- 
 structs the jnry, that if an otHc-er, in executing a distress war- 
 rant, seizes the property of a stranger, and the landlord ratifies 
 the act, and retains the property, after knowledge of the facts, 
 he will thereby render himself liable for the trespass committed 
 by the officer. Becker vs. Du Pree, 75 111., ICT. 
 
 It is a i-ule of law% that where one person does an act profes- 
 sedly for the benefit of another, and as acting for him, l)Ut with- 
 out any previous authority whatever, from such other person, to 
 do the act, if, after the act is performed, 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 though he had fully authorized the act 
 before it was done. 
 
 When Landlord not Liable. — The court instructs the jury, that 
 the delivery of a distress warrant to an officer, with direction to 
 execute it, will not alone render the landlord liable for the un-
 
 IN CIVIL ACTIONS. 
 
 395 
 
 authorized and unlawful acts of the officer and his assistants; 
 and, in the absence of proof to the contrary, it will not be pre- 
 sumed that the landlord directed the officer to seize the property 
 of any person other than the tenant named in the warrant. 
 
 The 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 landhjrd will not be 
 liable as a trespasser for the acts so done, unless he, in some 
 manner with knowledge of the facts, approve and ratify the act 
 after it is done. 
 
 Exemplary Damages.— If, from the evidence, under the instruc- 
 tions of the court, the jury find the defendant guilty, as charged 
 in the declaration, then, if the jury further find, from the evi- 
 dence, that the taking of the property was done under such cir- 
 cumstances, or in such a manner, as evinced a disposition on the 
 part of the defendant to maliciously and wantonly possess him- 
 self of such property, regardless of the plaintiff's right thereto, 
 then the j ury are not confined in their estimate of damages to 
 the actual value of the property taken, but tliey may assess, in 
 addition thereto, such punitive or exemplary damages, by way 
 of punishment to the defendant, as to the jury shall seem just 
 and proper, in view of all the evidence in the case. 
 [See Measure of Damages.] 
 
 TRESPASS ON KEAL ESTATE. 
 
 Actual Possession Sufficient, Etc. — The court instructs the jury, 
 that a person in the actual and peaceable possession of land, 
 will be presumed to be the owner, in the absence of any proof 
 of title, and he may maintain trespass against any one who 
 w^-ongfuUy invades liis possession. 
 
 That although possession of land may have been acquired 
 wrongfully by the plaintiff, this will not justify even the owner 
 of the property in entering and taking possession forcibly, 
 against the will of the person in possession. Cooley on Torts, 
 326; III., etc., vs. Oohb, 82 111., 183; Austin vs. Bailey, 37 Vt., 
 219; III. & St. I. Rd. Go. vs. Cobb, 68 111., 53; Tan Auken 
 vs. Munroe^ 38 Mich., 725.
 
 306 INSTKICTIONS 
 
 The court instructs the jury, that in oivler to maintain an 
 action for trespass, it is only necessary for the phiintiff t(j prove 
 that he was in the actual and peaceable possession of tlie pro})- 
 ertv upon which tlie trespass is alleged to have been committed, 
 and that the defendants, or some one or more of them, unlaw- 
 'fully interfered with such possession. 
 
 The court instructs the jury, that a person in the actual, 
 peaceable possession of premises, is presumed to be there right- 
 fiillv, and no one, not even the owner of the property, has a 
 right to go upon the premises and forcibly eject the person so 
 in possession, or remove his property therefrom against his will, 
 unless the person so entering has some legal process from a coui't 
 of competent jurisdiction, authorizing him so to do. 
 
 Trespasser by Ratification. — The court instructs the jury, as a 
 matter of law, that if they believe, from the evidence, that be- 
 fore and at the time of the alleged trespass, the plaintiff wi;s 
 in the actual, peaceable possession of the premises in question, 
 and that at the time alleged some person professing 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 instructions; and, further, that im- 
 mediately after all this had been done, the defendant, W., know- 
 ing the facts, went in, and by himself, or his agent, took posses- 
 sion 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. 
 
 [See Ratification.] 
 
 Trespass by an Agent. — The jury are instructed, that the law is, 
 that what (me, does by an agent is the same as if done by him- 
 self; and if the jury believe, from the evidence, that the de- 
 fendant, W., shortly before the alleged trespass, employed A. B. 
 as his agent or attorney to evict the plaintiff fi-om the premises 
 mentioned in the declaration, and that in pursuance of that 
 employment, and in the way of his said agency, the said A. B.
 
 IN CIVIL ACTIONS. 397 
 
 took any steps towards getting the possession of said property 
 
 away from the plaintiff, then the defendant, 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. 
 
 [See Principal and Agent.] 
 
 Entry Under Le^al Process. — The court instructs the jury, that 
 this is an action against three defendants, charging a joint tres- 
 ])ass on real estate, and if the jury find, from the evidence, under 
 the instructions of the court, that before, and at the time of the 
 alleged trespass, the said defendant, F., was a constable, and 
 had in his possession, to execute, the execution introduced in 
 evidence, and by vii-tue 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 purpose of making a sale 
 of said property, by virtue of said levy, and that the defendants, 
 T. and 13., entered upon said land along with the constable, 
 for the purpose of attending said sale, as spectators or bidders 
 upon the property, then the defendants are not liable for tres- 
 pass in this suit, unless they unnecessarily injured said real estate 
 or the crops growing thereon, or other property situate on said 
 premises. 
 
 Trespasser Ab Initio. — The jui-y are instructed, that a person 
 obtaining lawful and peaceable entry into the premises of an- 
 other, 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 his will. Cooley on 
 Torts, 462; 1 Hill, on Torts, 105; Sn.ydacher vs. Brosse, 51 
 111., 357; P^irrington vs. Loring., 7 Mass., 388; Kiniball vs. 
 Custer, 73 111., 380. 
 
 Although the jury may find, from the evidence, that the 
 defendant, F., at the time of the alleged trespass, 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 premises in question for the purjjose of making a levy upon 
 the personal property situate thereon, and did make such levy, 
 and took and carried away said property, professing to act
 
 398 iNSTRruTioxs 
 
 liiider said cxpcntion, still, if the jurv further believe, from the 
 evideuee, tluit the plaintiff was the owner of the property, and 
 in the peaceable possession of it at the time, and that the de- 
 fendant, F., in making said levy and in taking away said prop- 
 erty, did not act with reasonable care and prudence, but handled 
 the same in a rougli and grossly negligent mannei-, 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 him guilty of trespass in niakiuu; the 
 original entry upon said premises. 
 
 Entry Obtained by Fraud. — The jury are instructed, that actual 
 injurious force is not necessary to constitute trespass 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 privilege for which he pi'ofessed to enter, he will be a 
 trespasser from the beginning. Such abuse may consist in doing 
 any act or thing injurious to the occupier of 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 plaintiff, and after such entry, contrary to 
 the express connnand, or against the known wishes of the ])lain- 
 tiff's {loife), 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. 
 Kimhall ct al. vs. Custer, 73 111., 389. 
 
 Joint Trespassers. — The court instructs the jury, as a matter of 
 law, that in an action of trespass, if it ap})ears that a trespass 
 has been committed, all who encouraged, advised or assisted in 
 the act of trespass, are equally guilty, whether they were present 
 and took part in the act or not. 
 
 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 lav/ is, that any and all persons 
 who encouraged, advised, or assisted iu ^uch trespass are e(jnally
 
 IN CIVIL ACTIONS. 399 
 
 guilty with the person or persons who actually committed the 
 trespass, by going upon the premises, etc. And if the jury 
 further believe, from the evidence, that any, or either of the de- 
 fendants encouraged, advised or assisted in the commission of 
 such trespass, they should find such person or 2:)ersons 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 peaceable possession of the premises described 
 in the declaration, and that in his absence, and without his 
 knowledge or consent, some person broke open the doors and 
 entered the premises, and removed therefrom the personal prop- 
 erty mentioned in the declaration, without right, as explained 
 in these instructions, then the person so breaking into said 2:)rem- 
 ises, 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. 
 
 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 plain- 
 tiff'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. 
 
 TRESPASS BY DOMESTIC ANIMALS. 
 
 Note. — The statutes and local laws and customs of the different states, 
 relating to domestic animals running? at large, as well as those requiring 
 the owner of lands, under certain circumstances, to protect them by a 
 sufficient fence, are so various that it is not easy to classify them. Some 
 of these laws provide, that unless the owner causes his lands to be fenced 
 with such a fence as is presci'ibed, he shall maintain no action for trespasses 
 committed by domestic animals on said land. In some states the common 
 law requiring the owners of such animals to keep them on his own land, is 
 in force. In other states, from the earliest period, domestic animals have 
 been allowed to run at large in the highways, and on unenclosed lands, either 
 by general law or custom, or by vote of the township or county. A more 
 common 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.
 
 400 INST K r C T I O N s 
 
 In prcpariiifi: instruotions relating to those matters, no attempt has been 
 made to do mure tlian to funiiish a few examples of the most f^eneral 
 character. 
 
 Animals Not Permitted to IJiin at Iiarit,'e. — The court iiustructs the 
 jury, that \>y tlie genenil law of this state it is uiihiwl'nl 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 l)e in counties, towns, cities, or 
 villages where sucli runuing at iai-ge is autliorized by a vote of 
 the legal votcj-s of such counties, towns, cities or villages). 
 
 Owner of Lands Not Konnd to Fence, — The jury ai'c further in- 
 structed, that no person in this state is bound to fence his lands 
 or premises against domestic animals, such as, etc., excejjt in 
 those counties, cities or towns where, by a special vote of the legal 
 voters thereof, such animals are permitted to run at large. And 
 the jury are further instructed, that there is no legal evidence 
 ill this case, that domestic animals could lawfully be permitted 
 to run at large in the town of S., at the time when the trespasses 
 complained of are alleged to have been committed. 
 
 If the jury l)elieve, from the evideiu-e, that at the time of the 
 alleged trespass the plaiiitil'f was in the actual and peaceable 
 possession of the premises in question, and that the defendant, 
 at the same time, suffered and j:)ermitted his hogs and cattle to 
 run at large, and that while they were so running at large they 
 entered and went upon the plaintiff's field, as charged in the 
 declaration, and that the plaintiff was therel)y damaged, then he 
 is entitled to recover in this case, whether his premises were 
 protected by a good and sulHcicnt fence or not. 
 
 Animals Lawfully Runnin?? at Large— Land Protected by Fence. — If the 
 
 jury believe, from tlu^ evidence, that at the time of the alleged 
 trespasses, the ])laintiff' was in the actual and peaceable posses- 
 sion of the ])remises in question, and had the same protected by 
 "a good and sufficient fence" (or hij a (jood aiul legal fence ^ as 
 explained in these instructions:)^ along the highway, and that 
 the defendant's cattle and liogs broke and entered the plaintiff's 
 Held, as charged in the declaration, and fuilher, that the plain- 
 tiff's cro])s were thereby damaged; then the jury should hud the
 
 IN CIVIL ACTIONS. 401 
 
 defendant guilty; and, in such case, it is immaterial whether the 
 defendant knowingly permitted 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 tliis state, cattle and horses 
 {except hulls, etc.) are permitted to run at large on the highways 
 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, by cattle 
 escaping on to the land, where such crops are growing, from the 
 highway, or from unenclosed lands adjoining, the injured party 
 must show that he has his premises surrounded by "a good and 
 sufficient fence" {or hij good and laivf id fence, etc.). 
 
 Thougli the jury may believe, from the evidence, that the de- 
 fendant's cattle went upon plaintiff's land, and injured the crops 
 thereon growing, as stated in his declaration; still, if the jury 
 further believe, from the evidence, that the said premises were 
 not enclosed, by "a good and sufficient fence" {or hy a good and 
 /awf id fence, etc.), and that the cattle went upon said premises, 
 fi-om the adjoining highway, or unenclosed fields, by reason of 
 there being no good and sufficient fence, around plaintiff's land, 
 then he cannot recover in this case, and the jury should find the 
 defendant not guilty. 
 
 What a Sufficient Fence— By Statute. — The jury are instructed, in 
 this state, fences (four and one-half feet high, in good repair, 
 consisting of rails, 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, con- 
 sisting of rails, timber, or boards and posts), are deemed in law 
 leo;al and sufficient. 
 
 Animals Escaping Tlirougli Division Fence. — The court instructs the 
 jury, that when two or more persons have enclosed lands adjoin- 
 ing, 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 agreement of the parties them- 
 
 26
 
 4:02 INSTIiUCTIONS 
 
 selves; and if tlicy are unable to agree, then by the fence view- 
 ers of the town. 
 
 The jury are further instructed, that when the owners of ad- 
 joining lands are unable to agree, concerning the proportion of 
 fence to l)e made or maintained, the matter may be submitted to 
 the feuco viewers of the town, as j)r()vi(U'd by the statute, and 
 their decision, when made, will be binding upon both the 
 parties. 
 
 The court instructs the jury, that 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 trespass, and that the cattle and hogs of the 
 defendant went u|)()n said premises, as charged, through that 
 portion of the fence which it was the duty of the defendant to 
 nuike and maintain — if the evidence shows that he was bound to 
 make and maintain any portion of said fence, as explained in 
 these instructions. 
 
 If the jury believe, from the evidence, that tlie cattle and hogs 
 ot 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 
 ])oi-tion of the division fence, was in good or bad condition, i)ro- 
 vi(h'(|, the jury further believe, from the evidence, that the ani- 
 mals in question, did not get through plaintiff's fence along the 
 highway, nor through his portion of the said division fence. 
 
 Bunion of Proof — That the l)urden of proving the trespasses, 
 complained of in plaintiff's declaration, is upon the plaintiff, and 
 if he has failed to prove the same, or any of them, by a prepon- 
 derance! of ("Nidcncc, then the juiw nuist lind for the defendant, 
 as to all the trespasses wliich tlie plaintiff has failed so to prove. 
 
 Entry Thron>,'Ii Pljuntifl's Portion of the Fence. — If the jury believe, 
 
 from the evidence, that at the time in (jucstion, there was a line 
 feiute l)etween the lands of plaintiff and defendant, that a por- 
 tion 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 tlu; jury further believe, from the evidence, that tlic ])laintiff 
 did not keep his portion in good and sufficient repair, and that
 
 IN CIVIL ACTIONS. 403 
 
 by reason of such insufficiency, the animals in question came 
 upon the plaintiff's land, and committed the trespasses com- 
 plained of, then the defendant is not liable for any of the iii- 
 jui-ics occasioned by said stock. 
 
 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 owners by agreement, and the 
 portion of the fence to be kept in repair by each had been as- 
 signed to him, so that each had a designated portion of the fence 
 to build and keep in repair, then it was the duty of the defend- 
 ant 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 further be- 
 lieve, 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 which the defend- 
 ant was so bound to build and repair, and then injured the plain- 
 tiff's crops, then tlie jury should find for the plaintiff. 
 
 That 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 benefit 
 of said adjoining owners; and in this case, if the jury believe, 
 from the evidence, that tlie 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 plain- 
 tiff, and injured the croj^s there growing, then the defendant is 
 liable for such injury, whether the fence between the plaintiff's 
 land and that of the said A. B. was a good and sufficient fence 
 or not. Cooley on Torts, 339 ; Lawrence vs. Comhs, 37 N. H., 
 331 ; Lord vs. Wormwood, 29 Me., 282; Lyons vs. Merrick, 105 
 Mass., 71; Cook vs. Morea, 33 Ind., 497; Aylesworth vs. Iler- 
 rington, 17 Mich., 417; MeManus vs. Finan, 4 la., 283. 
 
 The jury are instructed, that when 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 do so, 
 and injury results therefrom to an adjoining owner, he will be lia- 
 ble in trespass therefor. 1 Addi. on Toi-ts, § 379; Bradhury vs. 
 Gilford, 53 Me., 99; Aylesworth vs. Harrington, 17 Mich., 417.
 
 404 INSTRUCTIONS 
 
 TROVER. 
 
 By General Owner. — The court instructs tlie jury, that if they 
 believe, from the evidence, that the phiintiif was the owner of 
 the property in question, and entitled to the possession thereof, 
 before and at the time of the commencement of this suit, and 
 that while he M-as so entitled to such possession, and before the 
 commencement of this suit, he made a legal denuind of the de- 
 fendant, for the property, and that the defendant then had tlie 
 property in his possession, and refused and neglected to sur- 
 render the same to the plaintiif upon such demand, this would 
 be evidence of the conversion of the property by the defendant, 
 and the jury should find for the plaintiff. 
 
 By One Having a Special Property. — If the jury believe, from the 
 evidence, that tlie {animal) in question was not the property of 
 the defendant, but was the property of one A. B., and that the 
 said A. B. had placed the same in the possession, and in the 
 care and custody, and under the control, of the plaintiff until he 
 should call for the same, and tliat the plaintiff, at the time of the 
 alleged conversation, was entitled to the possession of the {animal) 
 then the plaintiff liad such a property in it as will enable him 
 to sustain this action; provided, the jury further find, from the 
 evidence, that the defendant wrongfully took said property and 
 converted the same to his own use, as charged in plaintiff's 
 declaration. 
 
 Suit by One in Possession. — That when a person is in the riglitful 
 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 possession 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 
 him 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. GUbrcfh, 47 Me., 41<'); Moorman vs. Quick^ 20 Ind., 
 07; Boivcn vs. Fenncr, 40 Barb., 3S3.
 
 IN CIVIL ACTIONS. 405 
 
 Though the j urj may believe, from the evidence, that the said 
 A. B. was the general owner of the property, and is now entitled 
 to the possession thereof, still, if the jury further believe, from 
 the evidence, that before the time of the alleged conversion, the 
 said A. 13., as such owner, placed the said property in the pos- 
 session, 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 possession by the plaintiff 
 of the property in question constitutes a sufficient special prop- 
 erty therein to enable the plaintiff to maintain this suit; pro- 
 vided, the jury further believe, from the evidence, that before 
 the commencement of this suit, and while the plaintiff so had 
 it in his possession, the defendant wrongfully took the prop- 
 erty and converted it to his own nse, within the meaning of the 
 law, as explained in these instructions. 
 
 That altliough 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 propertv, 
 and entitled to the immediate possession, or that he had a special 
 right or interest in the property, with an immediate right of 
 possession, yet, in this case, if the jury find, from the evidence, 
 that the general ownei-ship of the property was in one A. B., 
 but that the plaintiff had the actual possession, charge and con- 
 trol 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 {cmiinal) as will enable him to recover 
 in this suit; provided, the jury find the defendant guilty of the 
 wrongful conversion of the property, as charged in the declara- 
 tion. Cooley on Torts, 4-1:2 ; Stephenson vs. Little, 10 Mich., 
 433; Owens y&.Weedman, 82 111., 409; Dudley vs. Ahier, 52 
 Ala., 572; Staples vs. Smith, 48 Me., 470; 1 Hill, on Torts, 495. 
 
 What Interest Plaintiff Must Have. — The court instrncts 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 
 nnist believe, from the evjdence, that the plaintiff was the abso- 
 lute owner of the property in question, or else that he had some 
 special interest therein, which entitled him to the possession of 
 the property at the time of the alleged conversion.
 
 4()C) INSTRUCTIONS 
 
 Suit by Servant or Agent. — Tlio jury are further instructed, that 
 ^vhcn a person has j)ersonal property in liis 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 up by a person not the ownei*), then the duty de- 
 volving upon the servant or agent, as such will not entitle him to 
 maintain an action of trover for the property. Cooley on Torts, 
 447; Farmers' Bk. vs. McKee, 2 Penn. St., 318. 
 
 IJurden of Proof. — Tlie court instructs the jury, that in order to 
 maintain this action, the plaintiff must prove, by a preponder- 
 ance of evidence, that he was either the general owner oi' the 
 l>roperty in controversy, and lawfully entitled to the possession 
 thereof at the time of the alleged (conversion, or that he had 
 some special interest in it at the time of the alleged conver- 
 sion, which entitled him to the possession of the property; and 
 if tlie jury believe, from the evidence, that at the time, etc., the 
 l)laintiff was not the general owner of the property, and had no 
 special interest in it, Itut was holding it as tlie mere servant or 
 agent of the owner, then they must iind for the defendant. 
 
 That in order to sustain this action, tlie 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 
 immediate possession thereof, or that he had some right or in- 
 terest in the same, which entitled him to the possession of it at 
 the time; and if the jui-y find, fi-om the evidence, under the 
 instruction of the court, that he has failed to prove either of 
 these things, by a i)r(!ponderance of evidence, the jury should 
 find for the defendant. Forth vs. Parsley, 82 HI., 152. 
 
 riaintiff Must Prove Conversion. — That to warrant a verdict, in 
 
 this case, iui- the j.laintiff, the jury must find, from the evidence, 
 not only that the plaintiff was the general or special owner of 
 the property, with the right to immediate possession at the time 
 of the alleged conversion, but it nmst further appear, from the 
 evidence, that the defendant wrongfully converted the property 
 to his own use.
 
 IN CIVIL ACTIONS. 
 
 407 
 
 Property Lost— Negligence of Defendnnt. — Tf the jury believe, from 
 the evidence, iiiuler the instructions of the court, that the de- 
 fendant came rio:;htf ully into the possession of the property, and 
 while he held it so in possession, and before any demand was 
 made on him for it, the {animal) was accidentally killed, with- 
 out any wilful intention on the part of the defendant {or that 
 the said goods were lost or stolen out of the possession of the 
 defendant), though he may have been guilty of negligence in 
 that behalf, then the plaintiff cannot recover in this suit, although 
 the jury may believe, from the evidence, that a demand was 
 made by the plaintiff upon the defendant for the property be- 
 fore the suit was commenced. 1 Addison on Torts, § 4(57, 471; 
 Cooley on Torts, 449 ; Boiolin vs. Nye, 10 Cush., 416. 
 
 Demand and Refusal Pi-inia Facie Evidence, Etc. — The jury are in- 
 structed, tliat when one person has property of another, whether 
 rightfully or wrongfully, in his possession, and the owner is 
 entitled to the innnediate possession of the property, then a 
 demand lor such possession by the owner and a refusal to deliver 
 the property by the one so having it in possession, is prima 
 facie evidence of a wrongful conversion of the property to his 
 own use by the latter. 
 
 « 
 When Demand not Necessary. — The jury are further instructed, 
 
 as a matter of law, that while, in some cases, a demand by the 
 owner for the possession of property in the hands of another, 
 and a refusal to deliver the same by such other person, vi, prima 
 facie evidence of a wrongful conversion of the property to his 
 own use by the person so having it in his possession, still such 
 demand and refusal are never essential before commencing a 
 suit to entitle the plaintiff to recover; provided, it appears, from 
 the evidence, that, before the commencement of this suit, the 
 defendant had actually converted the property to his own use, 
 by intentionally killing or destroying it, or by selling or other- 
 wise disposing of it for his own benefit, and so as to deprive the 
 plaintiff of it without his consent. 
 
 What Amounts to Conversion. — The jury are instructed, as a 
 matter of law, that when the property of one person comes
 
 408 INSTRUCTIONS 
 
 rightfully into the possession of another, to be held by him toni- 
 porai-ily tor some specific purpose, and when that is uccom- 
 plisheil, then to be returned to the owner, if the person so taking 
 possession of the jiropcrty wilfully 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 consent, 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 property. 
 
 If the jury find, from the evidence, that before and at the 
 time of the alleged conversion, the plaintiff was the owner of 
 the proj^erty in (piestion, and entitled to the immediate posses- 
 sion thereof, and that while the plaintiff was such owner and 
 entitled to such possession, and before the commencement of 
 this suit, the defendant wrongfully took the property into his 
 possession, and that while the property was so in his possession 
 the {animal) was killed {or the (joods were lost or stolen front 
 his possession), before the connnencement of this suit, this will 
 constitute a wrongful conversion of the pi'operty, and the jury 
 should find the defendant guilty; and, in such case, it is wholly 
 imuiatcrial whether the plaintiff made a demand for the prop- 
 erty before commencing the suit or not. 1 Addison on Torts, 
 § 471. 
 
 Title Claimed by Piirehase from tlie Owner. — The jury ai"e in- 
 structed, that as between the parties themstjlves, the title to 
 personal property passes without delivery whenever the sale is 
 completed, and the parties intend it as such. An agreement to 
 sell an article l)y weight or measure, where the article is selected 
 and identified, and the price agreed upon, may be a completed 
 sale without <1( livo-y, if the parties intend it as such. lienj. on 
 Sales, § 311; J^lfl'l/e vs. Varnnm, 20 Pick., 280; It'eed vs. JJur- 
 gess, 34 111., lt)3; Prescott vs. Loclce, 51 N. II., 94; Russell 
 vs. CarrtJKjton, 42 X. Y., 118; Morse vs. Sherman, 106 Mass. 
 43(t; Lester vs. East, 49 Ind., 588; Wilkinson vs. Holiday, 33 
 Mich., 38G; McClunr/ vs. Kdley, 21 la., 508. 
 
 That, as between the jiarties, delivery is not essential to the 
 completion of a sale of chattels. If the sale is completed and 
 nothing remains to be done but to deliver the pi'operty. then the
 
 IN CIVIL ACTIONS. 409 
 
 purchaser may take the goods at any time after the sale; pro 
 vided, he takes them hefore any lien attaches in the hands of 
 the vendor and the transaction is conducted in good faith. 
 Cruikshank vs. Cogswell, 26 111., 366. 
 
 If the jury 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 property in the plaintiff. 
 
 If the jury believe, from the evidence, that the defendant 
 bargained and sold the {animal) in question to the plaintiff, at 
 a given price, to be delivered when paid for, and that the plain- 
 tiff afterwards, and within a reasonable time thereafter, and 
 before the commencement of this suit, paid the purchase price 
 in full, or paid a part thereof, and tendered to the plaintiff the 
 remainder, and then demanded the possession of the property, 
 and that defendant, upon such demand, refused to deliver pos- 
 session, and afterwards sold the {animal) to another person, 
 without the consent of the plaintiff, then the plaintiff is entitled 
 to recover in this suit. 
 
 Tender. — The jury are instructed, that a tender of any amount 
 of money, if proved, in this case, has 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. Benj. on Sales, § 713. 
 
 [/See Tender.] 
 
 Price not Paid— Ei^lit to Possession, When. — The court instructs the 
 jury, that in the case of a sale of personal property, at a stipu- 
 lated price, and when no time of payment is agreed upon, the 
 law presumes that payment is to be made at the time of delivery ; 
 and in such case, until the purchase price is paid, 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 jiroperty under the sale, or a tender of 
 full payment has been made. Benj. on Sales, § 677; South- 
 western, etc., Co. vs. Plant, 45 Mo., 517; Scudder vs. Brad- 
 hurry, 106 Mass., 422; Mich., etc. Rd. Co. vs. Fhlllijps, 60 
 111., 190.
 
 410 INSTRUCTIONS 
 
 That, 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 nntil 
 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, unless such payment is either made 
 or tendered in full before such sale is made. 
 
 If the jury believe, from the evidence, that the plaintiff 
 bought the {horse) in question from the defendant, an<l 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 
 valuable consideration, and before the note became due, then, 
 for the purposes of this suit, the jury should consider the case 
 as though the note had been paid and the {horse) paid for in 
 full by the plaintiff. 
 
 Temporary Possession- Not Delivery, Uheu. — That in the case of 
 the sale of personal property, when the possession of the prop- 
 erty is not transferred at the time of the sale, it is not enough 
 to constitute delivery of the property that the purchaser obtains 
 the temi)oi-ary possession or control of the property for a spe- 
 cific 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. 
 
 Suit Against Warehousemen. — Tf the jury believe, from the evi- 
 deiu;e, 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 plaintiffs, by their duly 
 authorized agents, demanded the property of the defendants, 
 and that they refused, without right, as explained in these 
 instructions, to deliver up the property, this demand and refusal 
 is prima facie evidence of a conversion of the property by the 
 defendants to their own use.
 
 IN CIVIL ACTIONS. 411 
 
 If the jury 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 snit, and at the same time offered to pay to them all the 
 freight, storage and other charges which had accrned npon the 
 property in question, then, if the jury further iind, from the 
 evidence, that the defendants refused, upon such demand, to 
 deliver the property to the plaintiffs unless the freight and 
 charges upon other goods, not received or stored by the defend- 
 ants at the same time with the goods in question, were also paid, 
 then these facts would amount to a wrongful conversion of the 
 property by the defendants to their own use, and the jury should 
 ffnd the defendants guilty. Edwd. on Bail., § 350, 351. 
 
 Warehouseman's Lien. — The court instructs the jury, that a 
 warehouseman, on receiving goods in the regular course of his 
 business, has a lien upon the goods for any advances which he 
 may have made to the carrier for the carriage of the goods, and 
 also for his reasonable charges for storage. 
 
 And, in this case, if the jury believe, from the evidence, that 
 the defendants, A. & 13., on or about, etc., received the property 
 in question in the regular course of their business as warehouse- 
 men, 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 charges for storage, was paid or tendered. Hale 
 vs. Barrett, 26 111., 195. 
 
 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, claiming the right to hold the property until 
 certain charges thereon should be paid, and that while they so 
 held the goods, and before the commencement of this suit, the 
 plaintiffs, by their agent, made a demand on the defendants for
 
 412 INSTRUCTIONS 
 
 the property, and then offered to pay the sum of $ npon 
 
 defendants' claim \i\nn\ said goods, and that the sum so offered 
 covered all that wjis 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 tlie defend- 
 ants refused to surrender the property, and told the person 
 making such demand that he need not trouble himself to take 
 out the money so proposed to be paid, as it would not be ac- 
 cepted, nor would the goods be delivered, unless plaintiffs first 
 
 paid the sum of S in discharge of defendants' claim on 
 
 the goods, then this was a waiver of the necessity for producing 
 and exhibiting to the defendants the money so proposed to be 
 paid in order to constitute a good tender of that amount for tlie 
 purposes of this suit. Benj. on Sales, § 714 ; Ilazzard vs. LoriiKj^ 
 10 Gush., 267; 2 Greenl. Ev., § 603; 2 Pars, on N. & B., 623. 
 Tlie debtor has no right to insist that the creditor shall admit 
 that no more is due in respect of the debt for which tlie tender 
 is made. lie may exclude any presumption against himself that 
 he admits the payment to be only for a part, l)ut he can go no 
 farther, and his tender will not be good if he adds a condition 
 that the creditor shall acknowledge that no more is due. Benj. 
 on Sales, § 722; Bowen vs. Oweii^ 11 Q. B., 131. 
 
 [See Tent/cr.J 
 
 Measure of Damages— Suit by General Owner. — If, under tlie evi- 
 dence and the instructions of the court, you find the defendant 
 guilty, then the measure of the plaintiff's damages will be the 
 value of the property at the time of the conversion, and six per 
 cent, interest thereon since that date. Teiineij vs. State Banlc^ 
 etc., 20 Wis., 152; Hard vs. Iluhbell, 26 Conn., 3S9; Yater vs. 
 Mullen, 24 Ind., 277; Polk vs. Allen, 19 Mo., 467; Gutter vs. 
 Fanning, 2 la., 580; Repley vs. Bavis, 15 Mich., 75. 
 
 Damasres, One Having Special Property. — Thougli the jury nwxx be- 
 lieve, fi'DUi the evidence, that the defendants are guilty, still. 
 if the jury further find, from the evidence, and under the in- 
 structions of the court, that the plaintiff Avas not tlie general 
 owner of the property, nor responsible to the general owner 
 for its return, but only had a S2)ecial intL-rest therein as, etc.,
 
 IN CIVIL ACTIONS. 413 
 
 then he can only recover the vahie of such special interest. 
 And if the jury further find that 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 plaintiff for nominal 
 damao-es. 
 
 Damages, Lieu Holder. — 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, then he can 
 only recover the amount of such lien, including princij^al and 
 interest; provided, you find, from the evidence, that the value of 
 the property exceeds the ainount of such indebtedness. 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 the 
 value of the property at the time of the conversion, with six per 
 cent, interest thereon. 
 
 Suit Against a Lieu Holder. — If the jury, from the evidence, under 
 the instructions of the court, find the defendants guilty, then 
 they may assess the plaintiff's damages at the value of the prop- 
 erty at the time the demand was made, with interest thereon at 
 the rate of {six) per cent, per annum from that time, less what- 
 ever amount the jury find, from the evidence, was due to the 
 defendants for {freight and charges). 
 
 Price Paid Not Conclusive Evidence of Value. — The jury are in- 
 structed, 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 considera- 
 tion of all the evidence in the case l^earing upon that point. 
 
 Price Paid Prima Facie Evidence of Value. — That while the price 
 paid for the property in question is not conclusive evidence of 
 its value, it may be taken into account and considered by the 
 jury, with the other evidence in the case, in determining what 
 was the actual value of the property.
 
 414 INSTRUCTIONS 
 
 USURY. 
 
 SUIT BY PAYKE OK NOTE. 
 
 Interest Forfeitetl. — The court instructs the jury, that where a 
 party coiitractf^ for, or receives, a greater rate of interest than is 
 allowed hy law, and usury is pleaded, he cannot recover any 
 interest whatever on the principal sum loaned, and all payments 
 made upon the interest so agreed to he i)aid, if any are proved, 
 must be allowed as pgiyments upon the i)rlncipal. 
 
 rresumption from the Payment of Usury. — The court further in- 
 structs the jury, that if they believe, fi'om the evidence, under 
 the instructions of the court, that any usurious interest has been 
 paid by the defendant, and accepted by the plaintiff, upon tlie 
 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. Reinhack vs. Crahtree, 77 111., 182. 
 
 Interest Paid to be Credited on Principal. — The court further in- 
 structs the jury, that if they believe, from the evidence, that the 
 
 defendant borrowed of the j)laintiff the sum of S , f*>i" which 
 
 he gave 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 interest men- 
 tioned in the note, additional interest equal to per cent. 
 
 per annum {or the sura of% ), then such additional intei'cst 
 
 {or additional sum) made the transaction usurious; and, uiidci- 
 the statute of this state, forfeits the whole of the interest. 
 
 And if the jury further believe, from the evidence, that the 
 defendant has paid any interest on said note, then such payment 
 must be credited as payment on the prii\cipal sum loaned, and 
 the jury should find accordingly. 
 
 If the jury 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 (ii^l,900) for the period of {tioo)
 
 IN CIVIL ACTIONS. 415 
 
 years, and that In consideration thereof, and to secure the pay- 
 ment of the sum so borrowed, the defendant executed and 
 delivered the note for ($2,000), bearing interest at the rate of 
 {eight) per cent, per annum from date; and if tlie jury further 
 believe, from the evidence, that the (8100) 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 the interest accru- 
 ing upon the note, and 3'our verdict should be for the amount 
 originally loaned, less all the payments made thereon, whether of 
 principal or interest, if any such payments are shown by the 
 evidence. 
 
 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 understanding or 
 agreement that he would pay or compensate the said A. B. for 
 his services in obtaining said loan, and also that at or about the 
 date of the note in question, the said A. B. negotiated a loan 
 from the plaintiff to the defendant — that such loan was subse- 
 quently made, and the note in question in this suit given to 
 secure the payment of such loan, then, if the jury further be- 
 lieve, 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 crediting thereon all 
 payments, if any are shown by the evidence to have been made 
 upon the said note. 
 
 Attempts to Evade tlie Statute. — The jury are instructed, as a mat- 
 ter of law, that every shift, devise, or trick which may be resorted 
 to for the purpose of evading the statute, against usurious con- 
 tracts, will bring the transaction within the statute, as clearly as 
 if its provisions had been directly and in terms violated; and if
 
 416 INSTRUCTIONS 
 
 the transaction is in trutli and in fact a loanino; 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 annnm, the trans- 
 action is nsnrions. 
 
 And in this case, if the jnry believe, from the evidence, that 
 
 the defendant borrowed from the plaintiff the snm of 
 
 dollars, and paid, or agreed to pay therefor, any sum greater, or 
 in excess of the interest, at the rate of {eight) per cent, per an- 
 num, on the money borrowed, this would render the transaction 
 nsnrions, and, under the laws of this state, would forfeit all in- 
 terest npon 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. 
 
 Contract Must be Proved as Pleaded. — The court instructs the jury, 
 that the defense of usury, under our practice, must be sjjecially 
 jileaded, and strictly proved as pleaded. Under the pleadings 
 in this case, the defendant, in order to sustain his defense of 
 iisurv, must show, by a preponderance of the evidence, that the 
 contract of loaning was, etc., and that he paid {or agreed to pay) 
 
 the sum of 8 > over and above the interest called for by the 
 
 notes,for the purpose of giving plaintiff more than {eight) per cent, 
 interest on the money loaned. And if the jury believe, from the 
 evidence, that the agreement was other than tliat above stated, 
 or that any other sum than that 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 
 upon the note, including interest. Frank vs. Morris,^! 111., 138. 
 
 SUIT BY ASSIGNEi:, ETC. 
 
 Note Given for Usury. — The jury are instructed, that if they be- 
 lieve, from the evidence, that the only consideration for the note 
 sued on was illegal or usurious interest, agi'ced to be paid by the 
 defendant, as alleged in hi> [)lea, then the jury should lind tlic 
 issues for the defendant; provided, they further believe, from 
 the evidence, that the note was assigned by the payee after it 
 ])ecamG due, or that the plaintiff had notice of such usurious 
 transaction at tlie time the note was so assigned to him.
 
 IN CIVIL ACTIONS. 417 
 
 That a note given for usurious interest is given for an illegal 
 consideration, and is not binding upon the maker, unless it is in 
 the hands of an innocent purchaser, who takes it in the regular 
 course of business before due, for value, and without notice of 
 such consideration; and if the jury believe, from the evidence, 
 that the note in question, in this case, was given for usury, and 
 that the same was assigned by the payee thereof after it l)ecame 
 due, or that the plaintiff had notice of such illegal consideration 
 at the time he purchased the note, then the jury should find for 
 
 the defendant. 
 
 [See Negotiable Instrume'iits.'\ 
 
 Note Growing out of Antecedent Usurious Transactions. — Tlie j ury are 
 instructed, that the defendant in one of his pleas, to which your 
 attention has been called, has set up the defense of usury; and 
 regarding that defense, the court instructs you, as a matter of 
 law, that if promissory notes are once tainted with usury, the 
 I'cnewal of them, if the 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 interposed so long as any por- 
 tion 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, 
 l)y a 23reponderance of the evidence, then upon the question of 
 usury the jury should find in favor of the defendant. 2 Parsons 
 on Notes and Bills, 420; Grayx?,. Brown^ 22 Ala., 262; Bridge 
 vs. Ilubhard, 15 Mass., 96; Walker vs. Bank, etc., 3 Plow., 62; 
 Powell vs. Waters, S Cowan, 685; House vs. Davis, 60 111., 362. 
 [See Part I., Sec. 17.] 
 
 If the jury believe, fi-om the evidence, that the note in ques- 
 tion 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 plain- 
 tiff after it l)ecame due, or that the plaintiff had notice when the 
 note was assigned to him, that it was given uj)on 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 
 
 27
 
 418 INSTKUCTIONS 
 
 the (lofondant tlicroon, whether of principal or interest, if any 
 such j>a\iaents are proved, and the jury rihoiihl find their verdict 
 accordingly. 
 
 Bona Fide Holder. — Although the jury may believe, from the 
 evidence, that the note in (piestion 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 believe, from the evi- 
 dence, that the note was assigned to the plaintiff before it be- 
 came due, for a valual>le consideration, and that the plaintiff had 
 no notice of such usurious transacttiou at the time of the assign- 
 ment to him, tht'U lu' is entitled to recover in this suit the face 
 of said note, principal and interest, less the payments indorsed 
 thereon, and the jury should find their verdict accordingly. 
 
 WARRANTY. 
 
 What Constitutes Warranty. — The court instructs the 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, fn^m the evidence, that expressions were used 
 by the defendant, from which the plaintiff had reasonable ground 
 to suppose that a warranty was intended by the defendant, and 
 that he did so suppose, and in making the purchase relied upon 
 such supposed warranty, then the jury should find that there was 
 a warranty in fact. Benj. on Sales, § G13; Vdfi J^us/t'i/'k \s. 
 Murden, 22 111., 446; Thome vs. Mc Veagh, 75 111., 81 ; 1 Pars, 
 on Cont., 402-40.3. 
 
 That no particular words or form of expression is necessary to 
 create a warranty, nor need the word warranty be used. 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 state- 
 ment as true, and relies upon it in making the trade, such repre- 
 sent:iti<jn will constitute a warranty, liobiitson vs. Harvey^ 82 
 
 111., r>s. 
 
 That to constitute an express warranty, the word warrant need 
 not be used, nor is any i)recise form of expression necessary to
 
 IN CIVIL ACTIONS. 419 
 
 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 received and 
 relied upon by the purchaser, will amount to an express war- 
 ranty. 
 
 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 
 {jiiachine, when properly itsed, loas capable^ etc.,) and that the 
 said defendant, relying upon such representations, purchased the 
 said {machine) upon the faith of the truth thereof, this, in law, 
 would amount to a warranty that the said {machine) was, etc. 
 
 That no particular form of words is necessary to constitute a 
 M'aiTanty. If the jury believe, from the evidence, that the plain- 
 tiff represented and stated to the defendant that the property in 
 question was {firnt-class and equal to any of that hrand in the 
 market), and that such representations and statements were made 
 by the plaintiff with the intention that the defendant should 
 ])elieve them to be true, and rely upon them, and be induced 
 tlu3reby to purchase the pro]3erty; and, also, that the defendant 
 did rely upon such representations and statements as a warranty 
 of the quality of the said articles, and was thereby induced to 
 purchase the same, then such representations and statements 
 would amount to a warranty that the said goods were, etc. 
 
 Inteution not Material. — The jury are instructed, that to con- 
 stitute a warranty it is not necessary to show that the seller 
 intended to cheat or deceive the purchaser in the sale of the 
 I)roperty. It is wholly immaterial whether or not the seller 
 believed his representations to be true at the time; the pur- 
 chaser's right to recover for a breach of warranty, in such cases, 
 does not depend upon the seller's intention to deceive, 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 neces- 
 sary that the representation should have been intended by the 
 vendor as a warranty. If the representation is clear and posi- 
 tive as to the kind or quality of the article, and not a mere
 
 420 INSTRUCTIONS 
 
 expression of opinion, and the purchaser understands it as a 
 Avan-anty, and, relying upon it, purchases the property, tlien the 
 vciidoi- cannot escape liability by chximing that he did not intend 
 Avhat his lano-uage declared or fairly implied. Hawkins vs. 
 Pemherton, 51 >;. Y., 198. 
 
 IVliat Does not Amount to a Warranty. — The jury are instructed, 
 that while it is ti-ue, if the seller of personal property asserts, as a 
 fact, anvthing regarding its qualities, and concerning which the 
 buyer is ignorant, and the purchaser relics upon the statement in 
 making the purchase, the assertion will amount to a warranty of 
 the fact asserted; still, it is also true, that if the vendor merely 
 states an opinion, or gives his judgment upon a matter of which he 
 lias no special knowledge, and upon which the buyer also might 
 reasonably be expected to have an opinion and to exercise judg- 
 ment, this is not a warranty. Benj. on Sales, § 567; Jlillman 
 \i^. Wilcox, 30 Me., 170; Chapman, vs. March, 19 John., 290; 
 Polhemiis vs. Ileimaii, 45 Cal., 573. 
 
 The jury are instructed, that the mere expression of an opinion 
 or representations concerning the qualities or capabilities of an 
 article sold by the vendor, do not, of themselves, constitute a 
 warranty; to amonnt to a warranty the language used must form 
 a part of the contract of sale, and be such as to import or 
 amount to a promise that the article in (picstion does possess the 
 qualities and capabilities mentioned in the alleged promise or 
 contract, and the expressions or representations must be relied 
 upon by the buyer, as a warranty, in making the purchase. 
 
 The jury are further instructed, that to constitute a warranty 
 there must not only be an affirmation by the seller respecting 
 the quality of the article sold, Init the affirmation must be made 
 with a view of assuring the buyer of the truth of the fact 
 asserted, and it nnist be received and relied upon by the buyer 
 in making the purchase. 
 
 That, while to constitute a warranty, the term warrant need 
 not be used, nor any precise form of expression employed, still, 
 to constitute a binding warranty, there must be an affirmation as 
 to the cpiality or condition of the thing sold made by the seller, 
 at or befoi-e the sale, for the purpose of assuring the buyer of 
 the truth of the fact asserted, and of inducing him to make the
 
 IN CIVIL ACTIONS. 421 
 
 purcliase, and it must be so received and relied upon by the 
 purchaser. Benj. on Sales, § 613; Hawkins vs. Berry^ 5 Gilm,, 
 36; Bishop vs. Small, 63 Me., 12; Byrne vs. Jansen, 50 Cal., 
 624 ; Humphreys vs. Combine, 8 Blackf., 508 ; Hahn vs. Doo- 
 little, 18 Wis., 197; Hawkins vs. Pemherton, 51 N. Y., 198. 
 
 Mere Praise or Boasting not a Warranty. — The jury are instructed, 
 that mere praise or boasting indulged in by the owner of per- 
 sonal 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 judgment concerning 
 the property; provided, the purcluiser has an opportunity to 
 examine the property at the time, and does or does not do so, 
 and where no artifice is used to prevent him making an exami- 
 nation. Byrne vs. Jansen, 50 Cal., 624. 
 
 That when parties are negotiating a trade for property which 
 there is an opportunity for examining, the owner of the pi-op- 
 erty has a right to extol the value or desirable qualities of his 
 property to the highest point which the credulity of the pur- 
 chaser will bear, if he confines himself to mere expression of 
 opinion or judgment. Such boastful assertions or highly exag- 
 gerated descriptions do not amount to a warranty ; in such cases 
 the parties are upon equal ground, and the purchaser must 
 exercise his own judgment and abide the consequences. 
 
 Warranty Must Form Part of the Contract. — The court instructs 
 the jury, that to constitute a valid and l)inding warranty, the 
 agreement to warrant must enter into and form a pai-t 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 shoi'tly before the sale and under such circumstan-ces that the 
 purchaser was reasonably justified in regarding it as continuing 
 nntil the bargain was finished, and as forming one of the terms 
 of the contract of sale. Benj. on Sales, § 611; Vincent vs. 
 Leland, 100 Mass., 432; Wilmot vs. Hurd, 11 Wend., 584; 
 Cougar vs. Chamberlain, 14 Wis., 258; Summers v&. Vaughn, 
 35 Ind., 323 ; Bryant vs. Crosly, 40 Me., 9.
 
 422 INSTRUCTIONS 
 
 Warranty After the Sale. — That a warranty made after the con- 
 tract of sale is conchided, if proved, is not binding, nnless it is 
 made as a new and separate contract, and npon some new con- 
 sideration passing between the jiarties; and tliough the jury may 
 believe that npon the occasion in question, the i)laintiff said to 
 the defendant {the horse is sound and true, and all I'iyht,) still 
 if the jnry further believe, from the evidence, that this was not 
 said until after the trade was completed, this alone would not 
 constitute a binding warranty. 
 
 That in order to make out the defense of warranty, and a 
 breach thereof, it must appear, from the evidence, that the 
 representations relied upon, if any were made, were made before 
 the defendant accepted the property in question, under the con- 
 ti-act 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 find for the plaintiff upon the question of Avarranty; 
 provided, you find, from the evidence, that the property was 
 so delivered and ac(;epted by the defendant. 
 
 That 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 assur- 
 ing 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. 
 
 Sale by Sample— Iiiipliod Warranty. — The jury are instructed, that 
 when goods are offered for sale under such circumstances that 
 there is no reasonable opportunity to inspect them by the i)ur- 
 chaser, and the vendor exhibits what he represents to be a sample 
 of the goods so offered, and a sale is thereby effected, then the 
 vendor impliedly warrants the quality of the bulk of the goods so 
 sold to be equal to that of the sample. Benj. on Sales, § 648; 
 Beirne vs. Dord, 1 Selden, 95; S. C, 2 Sandf. Sup. Ct., 89; 
 Bradford vs. 3Ianhy, 13 Mass., 139. 
 
 If the jury believe, from the evidence, that there was a con- 
 tract between the })arties, by which it was agreed that the plain- 
 tiff should sell and deliver cases of, etc., and that the
 
 IN CIVIL ACTIONS. 423 
 
 plaintiff had with him what he represented as a sample of the 
 goods to be deliv-ered, then there was an implied warranty that 
 the bulk of the articles so contracted to be delivered should be 
 equal in value to the sample so shown; and if the goods for 
 warded to the defendant were not equal in quality to the sample, 
 he was under no obligation to keep them. 
 
 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 before determining 
 whether he will accept them or not. Benj, on Sales, § 594:, (J-iS ; 
 Loryrner vs. Smith, 1 B. & C, 1. 
 
 Sale when Not hy Sample. — Although the jury may believe, 
 from the evidence, that at the time of the alleged sale, tlie 
 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, and did 
 inspect them as far as he desired to do so, and refused to pur- 
 chase by the sample shown him, then there was no implied con- 
 tract on the part of the plaintiff that the goods sold should equal 
 the sample in quality or value. 
 
 Warranted Equal to Sample. — If the jury believe, from the evi- 
 dence, that the note in suit in this case was given by the defend- 
 ant for a part of the purchase price of {a machine), sold by the 
 plaintiff to the defendant, then, if the jury further believe, from 
 the evidence, that the j)laintiff, as a part of the contract of sale, 
 warranted [the machine) so sold to be similar in make and 
 equally as good as a sample {machine) then shown to the de- 
 fendant, if you find, from the evidence, that such sample was 
 shown, and if you also find, from the evidence, that the {ma- 
 chine^ sold was not similar in construction or equally as good as 
 the sample, and that the defendant is damaged by reason thereof, 
 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,
 
 424 INSTRUCTIONS 
 
 that >ufli damage is less than the amount due on tlie note; and 
 if yon lind the amount due on the note to he less than the 
 amount of such damage, then you sliould deduct the amount 
 due on the note from the amount of such damage, and return a 
 \erdit-t in favor of the defendant for the balance so found. 
 [See Part I., Sec. 19.] 
 
 SALES FOU KUTritK DELIVERT. 
 
 Implied Warranty of Kind and Quality. — The jury are instructed, 
 that in a sale of goods for future delivery by name or descrip- 
 tion (as, for instance, wheat or No. 2 corn), if the property is not 
 inspected by the buyer, then there is an implied warranty that the 
 goods shall answer the description given, and be salal)le and 
 merchantable; and if property is tendered under such a con- 
 tract, which does not answer such implied warranty, the pur- 
 chaser is not bound to accept it. Benj. on Sales, § 656; 3fef- 
 riam vs. Field., 24 Wis., 640; McClung vs. Kelley, 21 la., 508. 
 The law is, that under a contract to deliver a certain number 
 of bushels of wheat, there is an implied wai'ranty that the wheat 
 is to 1)0 of a fair merchantable (piality; provided, the buyer has 
 had no ojiportunity to inspect it; and if tiie jury believe, from 
 the evidence, that the wheat which plaintiff offered to deliver to 
 defendant was not of a fair merchantable quality, then the 
 defendant was under no obligation to acce})t the wheat; even 
 though it was tendered. 
 
 Implied Warranty. — The court instructs the jury, that in the 
 case oi a sale of personal property, where there is no opportu- 
 nity for the purchaser to insjject it, there is an implied warranty 
 that the property is of a fair merchantable quality, in good con- 
 dition, and lit for the use to which it is usually ap])lied. Mer- 
 riain vs. Field, 39 Wis., 578. 
 
 Though the jury may believe, from the evidence, that the 
 parties entered into a contract by whidi the j)laintirf agreed to 
 deliver, and the defendant agreed to take brick, as alk»ged in the 
 declaration in this case; still, if the jury further believe, from the 
 evidence, that as a part of the same contract, ])laintirf warianteil 
 and agreed that the brick so to be delivered should bo the same iu
 
 IN CIVIL ACTIO xs. 425 
 
 qualify, 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 construction of, then the (lefend- 
 ant was not bound to accej)t nor pay for the bricks so tendered. 
 
 Implied Warranty of Manufacturer. — The coui-t instructs the jurv, 
 that every manufacturer of machinery impliedly contracts with 
 the person for whom an article of machinery is made, in the ab- 
 sence 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 unfitness. 
 
 The court instructs the jury, that where a manufacturer sells 
 a commodity, by a well-known market description, and the com- 
 modity is not present at the time and place of trade, and is not 
 seen or examined hy the purchaser, the law will inq)ly a wai-- 
 ranty, 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 circumstances reasonably warranting the purchaser 
 in believing him to be selling as a manufacturer. CM. P'h'g c6 
 Prov. Co. vs. Tilton, 87 111., 547. 
 
 If the jury believe, from the evidence, that the defendant pur- 
 chased the machine in question of the plaintiff, and that the 
 plaintiff was the manufacturer of said machine, or represented 
 himself as such manufacturer, and that the defendant did not 
 have a reasonable opportunity to inspect the machine before pui-- 
 chasing it, then the law implies a warranty, on the part of the 
 plaintiff, that the machine M^as one reasonably fit and suitable 
 for the purpose for which it was sold to the defendant. And if 
 the jury further 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 find for the defendant; pro- 
 vided, you further believe, from the evidence, that the note in
 
 426 INSTRUCTIONS 
 
 (piestion was cjiven for a jtart of tlie purchase price of the 
 machine. I>eiij. on Sales, § 057; Pars, on Cont, 467; Mann 
 vs. Evei'sfon, ;!j} Ind., 355; Bird vs. 3fayer, 8 Wis., 362. 
 
 If the jury believe, from the evidence, that the defendant, 
 after he had had an opportunity to inspect the said machines, 
 accepted them as made in compliance with the terms of the con- 
 tract between the parties, then he cannot now refuse to pay for the 
 same, on tlie ground of a defect in the material or workmanship, 
 unless such defect was concealed, or not perceptible on inspection, 
 or unless there was a warranty as to the quality of material or 
 workmanship, covering the alleged defect. 
 
 If the jury believe, from the evidence, that the plaintiff sold 
 the nuichine in (piestion to the defendant, and, that at the time 
 of such sale, the plaint i if made a verbal warranty that, etc., and 
 
 agreed to take back the mac-hine, 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^ further believe, 
 fi-om the evidence, that said machine did not meet the recpiire- 
 ments of su(;h warranty, and tliat the defendant, within the said 
 
 months, notified the plaintiff of such failure, and to come 
 
 and remedy the defect, or take the machine away, and that the 
 plaintiff did neither, then the property still belongs to the plain- 
 tiff, and he cannot recover in this suit for the price of the 
 machine. 
 
 Machine ou Trial— Should Gire Notice in Reasonable Time. — Where a 
 party sells {a reaping and mowing machine]^ 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 maciiine, or nuike it all right, unless called upon 
 to do so within a reasonable time after the sale. 
 
 To be Returned in Reasonable Time. — If the jury believe, from the 
 evidence, that the agreement between the parties, was tliat de- 
 fendant was not to keep the machine unless it suited him, and 
 that he was to have the privilege of returning it if it displeased 
 liiin; tlu'U if lie was not satisfied witli thi; niacliine, lie was 
 bound to return it, within a reas()nal)le time, and if he did not 
 <lo so, he will be held to have elected to keep the machine, and 
 pay for it at the agreed price.
 
 IN CIVIL ACTIONS 427 
 
 When no Implied Warranty. — The court instructs the jury, that 
 where a person buys an article of personal j)roperty, and, bef(jre 
 purchasing it, inspects the article, or has a reasonable oppor- 
 tunity 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. 
 
 That where a person purchases an article of personal prop- 
 erty, and at the time of the purchase the article is present, and 
 subject 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 material, 
 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 pur- 
 chased 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 defend- 
 ant 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 the jury believe, from the evidence, that the defendant pur- 
 chased of the plaintiff the apples in question, at an agreed price, 
 and, at the time of such purchase, actually inspected a part 
 of the apples, and might have inspected the remainder if he had 
 wished to do sOj 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. 
 
 Defense— Fraud and Breach of Warranty. — The court instructs the 
 jury, that where a party purchases an article of personal prop- 
 erty, 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, workmanship, material 
 and value, unless the seller expressly warrants the character of 
 the article in respect to these particulars, or unless he practices 
 some trick, fraud or deceit upon the purchaser.
 
 428 INSTRUCTIONS 
 
 The jury are further instructed, that when there is an oppor- 
 tunity afforded for the purchaser to inspect an article before 
 purchasing it, and there is neither fraud nor express warranry 
 as to tlie quality or condition, then the law implies no warranty 
 in reference thereto, and tlu' purchaser takes the property at his 
 own risk. 
 
 Warranty of the Soundness of a Horse. — If the jury believe, from 
 the evidence, that the 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 
 reirardinff the condition of the hoi-se, 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 evidence, that the defendant did be- 
 lieve such statement to be true, and, relying upon the truth 
 thereof, bought the horse in question, this, in law, would con- 
 stitute a warranty ("that the horse was perfectly sound, ^ell 
 broke and true to work"); and if the jury further believe, from 
 the evidence, that such statement 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. 
 
 If the jury believe, from the evidence, that during the negotia- 
 tion between the parties wdiich 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 after- 
 wards 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. Cooh vs. Mos- 
 leij, 13 Wend., 277. 
 
 Defect Must Exist at Time of Warranty. — That a warranty 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 remain sound <^r free
 
 IN CIVIL ACTIONS. 429 
 
 from vice. And, if j^ou believe, from the evidence, that the 
 horse in question was somid 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 tlie horse. 
 
 That if the jury believe, from the evidence, that the note 
 sued on in this case was given for the purchase money of a 
 horse sold by the plaintiff to the defendant, and that before and 
 at the time of the sale, the plaintiff represented and warranted 
 the horse to be sound and free from vice, and that the defend- 
 ant relied upon such statements and warranty, and was induced 
 thereby to purchase the horse; still, unless you further believe, 
 from the evidence, that at the time of such sale and purchase 
 the horse was unsound {or vicioin^) in fact, such representations 
 and warranty constitute no defense to this action. An unsound- 
 ness afterwards contracted, or a vice afterwards acquired l)y the 
 horse, would be no legal defense to an action brought to recover 
 on the note so given. 
 
 Visible Defects not Warranted Against. — Tlie court instructs the 
 jury, that although they may believe, from the evidence, that the 
 plaintiff, at the time of the sale, did say he would warrant tlie 
 said horse to be perfectly souiul, still, if they fnrtlier believe, 
 from the evidence, that the defendant had all reasonable oppor- 
 tunities, then and there, to inspect and examine the said liorse, 
 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 ol)- 
 server, then such blemishes or defects would not be covered by 
 said warranty. 
 
 That a general wari-anty of tlie 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 intelli- 
 gence, at the time of the sale. To cover such defects they must 
 be expressly named or mentioned in some way, and v.'arranted
 
 430 1 N S T RUCTIONS 
 
 affainst, unless some art is used bv the vendor to conceal, and he 
 does conceal, such defects. Benj. on Sales, § 610; Broion vs. 
 Bigelow, 10 Allen, 242; Mulvaney vs. Rosenhurger, IS Penn. 
 St., 203; Vandewalkcr vs. Osmer, 65 Barb., 556. 
 
 Artifice to Prevent Exaiiiination by Purchaser. — The jury are in- 
 structed, that the general rule that a wai-ranty does not protect 
 against defects that are plain and obvious to the senses of the 
 purchaser, and whicli it required no special skill to detect, has 
 no application if the vendor uses any art or trick to conceal the 
 defect, and does conceal it, or if he uses any artifice or trick to 
 withdraw the attention of the pui-chaser away from the defect, 
 so as to prevent him noticing wliat he might otherwise liave 
 noticed. Chadsey vs. Green, 24 Conn., 562; Brown vs. liige- 
 low, 10 Allen, 242. 
 
 If the jury believe, from the evidence, that the plaintiff war- 
 ranted the horse sold to be sound, at the time of the sale, and 
 that, at that time, the eyes of the horse, or either of them, was 
 so aifected that the sight was impaired, and that the defect was 
 of such a character that it couhl not be discovered by a jkm-sou 
 of ordinary care and skill in such matters, and was not discov- 
 ered by the defendant; or, if tlie jury believe, from the evidcuce, 
 that at the time in question, the ])laintiff, 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 otlierwise would, and, 
 for that reason, did not discover the said defects, tlien the war- 
 ranty of tlie phiintiff would cover such defects. 
 
 Burden of Proof. — The court instructs the jury, that insofar 
 as the defendant relies upon a warranty of the cpiality of the 
 property sold and a breach of the same, the burden of proving 
 the warranty is upon the defendant; and, unless he has proved 
 both the warranty and the breacdi alleged, by a preponderance of 
 evidence, he will not be entitled to any benefit therefrom in this 
 suit. 
 
 To entitle the plaintiff to recover, in this suit, it is not only 
 necessary. for the jury to find, from the evidence, that the plain- 
 tiff warranted the animal in question to be sound, at the time of 
 the sale, but it must fui-ther apjiear, from the evidence, that the
 
 IN CIVIL ACTIONS. 431 
 
 animal was unsound at that time; and, unless both these facts 
 appear, from the evidence, the jury should lind 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 l)y a preponderance of testimony, 
 in order to make the defense available. Mailman vs. AYilliamson^ 
 G9 111., 423. 
 
 In this case it is incumbent on the defendant to establish, by 
 a preponderance 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, 
 you find the weight of the evidence is with the plaintiff upon 
 either of these points, or is equal in weight with that of the 
 defendant, regarding either the warranty ol- the breach of it, then, 
 as a matter of law, you should find in favor of the plaintiff upon 
 the question of warranty. 
 
 Measure of Damages. — The jury are instructed, that the measure 
 of damages for a breach of warranty of the soundness or quality 
 of an article of personal property is the difference 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; Aultman vs. Iletherington, 
 42 Wis., 622. 
 
 If the jury 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 man- 
 ner and form as charged in the declaration, and that the 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.
 
 432 INSTKUCTIONS 
 
 Wl LLS. 
 
 Note.— On the subject of contestinf^r wills, the references are mainly 
 confined to Redficld on "Wills, and to Jarman on Wills, iith Am. Ed. It has 
 not been deemed necessary to refer extensively to other authorities, fov the 
 reason that in these works, and more particularly in the notes to Jai-man on 
 Wills, by Randolph and Talcott, nearly all the leading cases, pro and con., 
 are collated and reviewed. 
 
 The Ri!?ht to Make a Will. — Tlie court instructs the jury, as a 
 matter of law, that every person of {competent age, a.s fixed hij 
 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 otlierwise inlicrit it as his legal heirs, of their in- 
 terest therein. Generally, the object of a last will and testament 
 is to enable the testator to devise his property as to him may seem 
 best. 
 
 Relatives Have no Le!,'-al or Natural Rig-lits, Etc. — The jury are in- 
 structed, that no ne.\t of kin. no matter how near they nuiy l)e, 
 (;an be said to have any equitable right to their kinsnuxn^s estate, 
 which can be asserted against the will of said kinsman. The 
 law of the land has placed every person's estate wliolly under 
 the control of the owner, subject to such linal 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 riglit to the estate of tlieir 
 father which can be asserted against his disposition of it l)v will. 
 
 All parents have a right to judge as to who arc the proper ob- 
 jects of their bounty; and, if free from undue influence and 
 insane delusions, and of sufficierit mental capacity, nuiy give 
 their property to any person whomsoever. A child has no natural 
 right to the estate of its father which coui'ts or jui-ies can i-ecog- 
 nize against iJie Avill of the i'atlier. 
 
 A man may change his will as often as it pleases him to do 
 so, and (^f itself it is no evidence against the validity of the last 
 will, that a testator had executed previous wills, different in their 
 character from the one last executed.
 
 IN CIVIL ACTIONS. 433 
 
 The jury have nothing to do with the equity or inequity of 
 the testanientaiy dispositions of property; provided, the jury 
 believe, from the evidence, tliat the alleged testator had suffi- 
 ^cient mental capacity to make a will, as explained in these 
 instructions, and that the will was made of his own free will by 
 the testator. 
 
 Essentials of a Will— (See Different Statutes.) — The court instructs 
 the jury, that to entitle a will to probate four things must con- 
 cur : 
 
 Mrst. 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 l^elieve the testator to have been of sound mind 
 and memory at tlie time of signing or acknowledging the same. 
 
 The Jury Sliould Take the Law from the Court. — The court instructs \ 
 
 the jury, that it is their sworn duty, as jurors, to accept the law \ 
 
 of this case from the court; and the jury are not permitted to 
 determine what the law is according to their own unaided judg- 
 ments, but, in arriving at a conclusion, they must determine the 
 question of facts from the evidence, and be governed by the 
 instruction of the court as to the law. 
 
 Witnessing Will— What is Sufficient— (See the Different Statutes). — The 
 court instructs the jury, that if they Ijelieve, from the evidence, 
 (given by the subscribing witnesses), that the deceased signed the 
 paper, purporting to be his will, in the presence of one of the 
 subscribing witnesses, and acknowledged it to be his act and deed 
 to the other, and that they subscribed the same as such witnesses, 
 at his request and in his presence; and if the jury further be- 
 lieve, that the deceased was of sound mind and memory at the 
 time, then tuis is a compliance with the law, and \^ prima facie 
 evidence of the due execution of the will. 
 
 28
 
 434 I X s T K r c T 1 X s 
 
 Tlie conrt in>tnicts the jurv, that it i:^ not nocessarv that the 
 sul)Seriltiiiir witnesses shoiihl know at tlic time of attesting it that 
 it is the Avill, or that tliey shonhl know tlie contents of it. 
 
 If the witnesses to a will, while sio-ninijf their names thereto, 
 as such witnesses, are in siieh a jtlaci; that the testator can see 
 them, if he ehooses to, they are to he rei^arded as in his presenee, 
 M'ithin the meaning of the statute, and it is not necessary that 
 thev shall he in the same room with the testator, or that he shall 
 actually see them sign. Anihre vs. Wclahaar, 74 111., 100, 
 
 IXSAXITY OR UXSOrxn MIND. 
 
 Issue to be Tried. — The jni-y are instructed, that the oidy ques- 
 tion in this case for them to try is this: Is the writing offered the 
 will of A. I*)., deceased; and your verdict will l)e, either that it 
 is his will, or that it is not. 
 
 The question to he passed \\\)o\\ l»y the jury is this: AVas the mind 
 and memory of the deceased, at the time of the making of the 
 alleged will, sufficiently sound to enahle him to know and under- 
 stand the business in which he was engaged at the time he exe- 
 cuted the will, judging his conqictence of mind by the nature of 
 the act to be done, and from a consideration of all the circum- 
 stances in the case. TrUk vs. Ncicell, 02 HI., liM^ 
 
 That in the examination of wills, the sanity or insanity of the 
 testator is always a question of fact, to be decided l>y the jury 
 upon the whole evidence, according to the plain }n-inciples of 
 connnon sense. 
 
 Ilurden 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 sul)scribing witnesses, and 
 unsoundness of mind is alleged as a ground for sertill^• the will 
 aside, the fact of insanity, or of unsoundness of mind, nmst bi', 
 established with reasonable certainty; the evidence of insanity 
 should pi-eponderate, or the will must be taken as valid. If ther.» 
 is only a bare balance of evidence, or a mere doubt only t)f the 
 sanity of the testator, the presumption in favt»r of sanity, if 
 ])roved as al)ove stated, must turn the scale in favor of the sanity 
 of the testator. Jarman on Wills, 5 Am. ICd., 1<I4; lied, (ju
 
 IN CIVIL ACTIONS. 4.ja 
 
 AVills, 31-50; Perkins vs. Fe/'kins, 39 K. H., 163; Brooks vs. 
 Barrett, 7 Pick., 94; Turner vs. Cook, 36 Ind., 129; Dickie vs. 
 Carter, 42 111., 376; Terr// vs. Buffington, 11 Ga., 337; /^i m 
 Cqfnum, 12 la., 491; 6'(>/^^/i vs. ^/me/-, 45 Ala., 378. 
 
 The court instructs the jury, as a matter of law, that when the 
 party insisting on the probate of the will has established 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 witnessed, as explained 
 in these instructions, then a 2:)rima facie case is made out; and 
 in such a case, the party seeking to contest the will, on the 
 ground of insanity, fraud, compulsion or for any other cause, 
 takes upon himself the burden of proving the ground relied 
 upon; and the cause relied upon must be proved, by a prepon- 
 derance of evidence; and if the question is left evenly balanced, 
 the verdict should be in favor of the validity of the will. 
 
 The jury 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 memory, 
 within the meaning of the law, as explained in these instruc- 
 tions, and this is to be determined by the jury, not alone from 
 the statements or evidence of any one or more persons, or class 
 of witnesses, but from a consideration of the whole of the evi- 
 dence in the case. 
 
 Sound and Disposing Mind and Memory. — The law is, that to be of 
 sound and disj)osing mind and memory, so as to be capable of 
 making a valid will, it is sufficient if the testator has an under- 
 standino; of the nature of the business in which he is eno-ao-ed — 
 a recollection of the property he means to dispose of — of the 
 persons who are the objects of his bounty, and the manner in 
 which it is to be distributed among them. It is not necessary 
 that he should comprehend the provisions of his will in their 
 legal form. It is sufficient if he understands the actual dispo- 
 sition which he is making of his property 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 
 bounty, and the business in which he is engaged, at the time of
 
 436 INSTRUCTIONS 
 
 executino: liis will, then lie is of sound mind and nieniorv within 
 the meaning of the law. Jarman on Wills, 5 ^Vm. Ed., lOo, et 
 ,V67./ 1 Red. on Wills, 12;M :'.:.. 
 
 The court instructs the jury, that while it is true, as a general 
 rule, that a nuin may, by a will, do with his property whatever 
 he may choose, yet, to this rule there exists this exception — that 
 he cannot do so when there exists in him a defect of testament- 
 ary capacity. And such defect exists when a man is laboring 
 under (partial) insanity, if it is sutHcient to affect the disposition 
 of his property, or when he is laboring under some insane delu- 
 sion as to some subject, matter or person, which affects the 
 provisions of the will which he has attempted to make. 1 Red. 
 on AVills, G7, 08; Jarman on Wills, 72. 
 
 Test of TostaiiKMitary 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 testamentary capac- 
 ity within the meaning of the law, if he has a clear understand- 
 ing of the nature of the business in whicli he is engaged, of the 
 kind and value of the property devised, and of the persons who 
 ai'c the natural objects of his bounty, and of the manner in which 
 he desii'es his property to be distributed. 
 
 That in determining whether a iia])er, if it has been executed 
 in due form of law, .is a will, is in fa(;t a valid will, the real 
 (juestion to be determined is, whether the testator had an under- 
 standing of the nature of what he was doing, a recollection of the 
 property he meant to dispose of, and of the persons to whom he 
 meant to convey it, and of the manner in which lu; meant to 
 distribute it among them. IJy all this is meant not niei-ely that 
 the deceased was aware that he was making a will, and was 
 thereby disposing of his propei-ty among persons whose names 
 he remembered, and was so disposing of it in a certain way, but 
 the law requires that a testator shall have a rational under- 
 standing and comprehension of all these things, and of the con- 
 sequences of his act, and an intelligent purpose and determina- 
 tion so to dispose of his property, as the result of the free action 
 of a rati(jnal and sane mind. 
 
 Testamentary (,'aimcity. — 'I'lie jury ai'C instructed, that M'hat is 
 meant by testamentary capacity, as used in these instructions, is
 
 IN CIVIL ACTIONS. 437 
 
 a rational understanding on the part of the testator at the time 
 of the making of his will, of the business he was engaged in, (jf 
 the kind and value of the proj^erty 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 regarding any of these subjects. 
 
 The jury are instructed, that although a testator may not have 
 sufficient capacity to make contracts and do business generally, 
 he may, nevertheless, have sufficient capacity to make a will. It 
 is not necessary that a testator, at the time of makiu"- his will, 
 should have sufficient capacity to engage in complex and intri- 
 cate business matters; if, at the time of making his will, he is 
 capable of understanding the nature of the business, the nature 
 and extent of his property, and tlie persons to whom he means 
 to convey it, and the mode of distribution among them, it is suf- 
 ficient; provided he is laboring under no insane delusion upon 
 any of the subjects upon which he is acting. 
 
 Partial Insanity— Monomaiua. — The court instructs the jury, that 
 "a man who is very sober and of right understanding in all other 
 things, may, in some one or more particulars," be insane; that 
 there is a partial insanity, and a total insanity; and that such 
 partial insanity may exist as it respects particular persons, 
 things, or subjects, while as to others tlie person may not be 
 destitute of the use of reason. 1 Red. on Wills, 03: Jarman on 
 Wills, 5 Am. Ed., 77, 113. 
 
 The court instructs the jury, that it is not sufficient, of itself, 
 that a man should be able to describe his feelings, or give suit- 
 able answers to ordinary cpiestions; this he may do, aiul yet the 
 mind may be too much diseased to enable him to dispose of his 
 estate with understanding and discretion. 
 
 The jury are further instructed, that although a testator has 
 some insane delusion upon some subjects, yet, if he has mind 
 enough to know and appreciate his relation to the natural ob- 
 jects of his bounty, and the character and effect of the disposi- 
 tions of his property, then he has a mind sufficiently sound to 
 make a valid will. 
 
 That when a man Is of unsound mind as to the natural 
 objects of his bounty, or the proper and reasonable distribution
 
 438 INSTRUCTIONS 
 
 to them of liis estate, he cannot be regarded as a free a<::;ent in 
 making his will, or as of sound mind and memory, though he 
 may be so as to all other pei-sons and matters. 
 
 Tliat the law recognizes the difference between general and 
 partial rnsanity, and if the jury believe, from the evidence, that 
 the will here offered was made under the iniluence of partial 
 insanity, and is the product of it, it is as invalid as if made 
 \mder the elTects of an insanity ever so general. 
 
 Tliat unsoundness of mind embraces every species of mental 
 incapacity, from raging mania to that delicate and extreme 
 feebleness of mind which approaches nearer to, and degenerates 
 into idiocy. 
 
 That disposing mind and memory is a mind and memory 
 which have a capacity for regarding and discriminating, and 
 feeling the relations, connections, and obligations of family and 
 bkx)d. 
 
 That a person may have, npon some subjects, and even gen- 
 erally, mind and memory, and sense, to know and comprehend 
 ordinary transactions, and yet upon the subject of those who 
 would naturally be the objects of his care and bomity, and of a 
 reasonable and proper disposition as to them of his estate, he 
 may be of unsound mind. 
 
 That a man may be insane upon one particular subject, and 
 one only, or he may be insane as to a number of subjects, or he 
 maybe generally insane; and the law recognizes the existence 
 of partial insanity as well as of general insanity. 
 
 Delusion— Regarding Viife or Child's Property. — The court instructs 
 the jurv, that if they believe, from the evidence in this case, that 
 at the time the will in controversy M'as executed, the testator was 
 laboring under an insane delusion in regard to the vahie of liis 
 wife's property, and that he was influenced or controlled in the 
 making of said will, by said delusion, or that the said testator 
 was laboriuiT under an insane delusion in regard to what amount 
 of property he had already given to his daughter, and that m 
 juakinir said will he was influeiu-ed or conti-olled bv such 
 delusion, then the said testator was not of sound mind and 
 memory, as is contemplated and re(piired by tlie law, and any 
 paper purporting to be a will executed by him under such cir-
 
 IN CIVIL ACTIONS. 439 
 
 ciimstances, is not a valid and legal will, and the jury should 
 find the issues for the contestants. 1 Red. on Wills, 72, 90 ; 1 
 Jarni. on Wills, 100 et seq. 
 
 The court instructs the jury, that the law means by the 
 expression "a morbid and insane delusion," the belief of the 
 existence of a state of supposed facts, which no rational person 
 would have believed; and a proper way of determining whether 
 any belief is a delusion, is for the juror to ask himself the ques- 
 tion: Can I understand how any man in possession of his senses 
 could have believed this thing? and if the answer you give is: 
 " I cannot nnderstand how a man in possession of his senses 
 could have believed it," then it is of the necessity of the case 
 that you should say that such a man was not sane on that subject. 
 
 Sanity is Presumed. — The court instructs the jury, that in all 
 cases involving questions of sanity and insanity, jprima facie ^ 
 the person is sane, and when there is only evidence sufficient to 
 raise a doubt of a person's insanity, the presumption in favor of 
 sanity must prevail. When a will or other instrument is made 
 by a person of competent age, and under no legal disability, it 
 will be taken and held to be valid and binding until incom- 
 petency is established, by a preponderance of evidence. Wyatt 
 vs. Walker, 4-i 111., 485. 
 
 Insanity— How Determined. — The jury are instructed, that in de- 
 termining whether or not a man is insane, he should be com- 
 pared with himself, and not with others. His manner, talk and 
 actions at a time when it is alleged he was insane, should be 
 compared with his manner, talk and action at a time when he 
 wao sane. 
 
 Settled Insanity Presumed to Continue. — The jury are instructed 
 that when settled insanity is once shown to exist, it is presumed 
 to continue until restoration to reason is shown; but such pre- 
 sumption arises only in cases of settled insanity, and if complete 
 restoration of reason is shown, then no more presumption of in- 
 sanity arises in the case of the execution of a will than if the 
 testator's mind had never been affected. 1 Red. on Wills, 112. 
 
 While it is true that, in the absence of any evidence, the law 
 always presumes that a man is sane, yet if insanity, either partial
 
 440 INSTRUCTIONS 
 
 or total, be proved to exist at any time before tbe making of a 
 will, it will be presumed to have continued, unless the contrary 
 be shown, l)y a preponderance of the evidence. 
 
 Intoxication. — The jury are instructed, that neither intoxication 
 nor the actual stimulus of iutoxicatin<i; litjuor at the time of exe- 
 cutiui^ a will incapacitates the testator, unless the excitement Ik; 
 such as to disorder his faculties and pervert his judgment. 1 
 Jarman on Wills, 5 Am. Ed., 97; Gore vs. Gibson, 13 M. & W., 
 623; Gardner vs. Gardner, 22 AVend., 526; Thompson vs. 
 Kyner, 65 Pa. St., 368. 
 
 Drunkenness Insanity, Wlien. — The court instructs the jur\-, that 
 drunkenness itself is a species of insanity, and may invalidate 
 a Avill made during the drunken fit; and long-continued liabit 
 of intemperance may gradually impair the mind and destroy its 
 faculties, so as to produce insanity of another kind; druidcenncss 
 long continued, or much indulged in, may produce on some 
 minds and with some temperaments, permanent derangement 
 and fixed insanity. "Whether in this case intemperate habits or 
 drunkenness on the part of the deceased have been proved, and 
 whether his mind Avas thereby affected, and to what extent, if 
 any, are questions of fact to be determined by the jury, from a 
 consideration of all the evidence. 1 Red. ou "Wills, 160-162; 1 
 Jarm. on Wills, 5 Am. Ed., 97. 
 
 Intoxiciition May rrodncc Insanity. — The court instructs the jnry, 
 that while it is not the law, that a dissipated man cannot execute 
 a will, nor that one wlio is in the habit of excessive indulgence 
 in strong drink must be wholly free from its influence when 
 performing such an act; yet if fixed mental disease has super- 
 vened upon intemperate habits, the man is as incompetent to 
 execute a valid will as though such mental disorder resulted 
 from any other cause. 
 
 Failure of Memory. — If Hie testator's mind is sound, althougli 
 his memory may l>e impaired, lie 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, ou ac-
 
 IN CIVIL ACTIONS 441 
 
 count of failure of memory, the failure must be such as to ex- 
 tend to his immediate family, relatives . and friends, and the 
 nature, extent and value of his property. 
 
 Old Age Alone Does Not Incapacitate. — The jury are instructed, that 
 a man may freely make his last will and testament, no matter 
 how old he maybe; provided, he has the requisite mental capac- 
 ity, and is a free agent in making it. The control which the 
 law 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. 
 
 Previonsly Expressed Purposes. — The court instructs the jury, that 
 in determining whether the paper 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 unsoundness of mind. And if the jury 
 believe, from the evidence, that the deceased, before executing 
 the will, had expressed any fixed purposes and intentions regard- 
 ing the disposition of his property, at variance with the pro- 
 visions of the alleged will, then the jury should consider whether 
 or not the provisions of the will are inconsistent with sanity 
 itself, and with his previously expressed and fixed purposes, and 
 if the jury find that they are so, then these facts also should be 
 weighed by the jury in determining the question of sanity or 
 unsoundness of mind of the deceased at the time of its execution. 
 
 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 evidence 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 character of such dispositions, 
 they must not only be in some degree extravagant, and appa- 
 rently unreasonable, but they must depart so far from what 
 should be regarded as natural and apparently reasonable, as to 
 appear fairly attributable to no other cause than that of a dis- 
 ordered intellect or unsound mind.
 
 442 INSTRUCTIONS 
 
 The jury arc instructed that tlie uiicijual disti-ihiitioii of his 
 property, by will, is not of itself any evidence of the insanity of 
 the testator. 
 
 That in deterniinini;- the (|uesti()n of the validity dl" this will 
 the jui-y have a rio;lit, and it is their duty, to take into consider- 
 ation, the provisions of the will itself in connection with all the 
 <^>ther evidence that has been offered in reference to the (piestiou 
 whether the deceased was, or w^as not, of sound mind and 
 memory at the time of its execution. 
 
 Expert Testimony. — That the testimony of medical nu^n of lai'i^e 
 experience in their profession, upon the question of the exist- 
 ence or non-existence of soundness of mind, is, as a u-encral rule, 
 entitled to more consideration than the testimony of unprofes- 
 sional M'itnesses who have not devoted their attention to the 
 same class of studies. 
 
 The jury are instructed, that while it is true that the testimony 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, whetlicr the tes- 
 timony of the medical men, who have testified in this case, is en- 
 titled to more weight than that of other witnesses, is a (juestion 
 entirely for the jury, to be determined by them from a careful 
 consideration of all the evidence in the case. 
 
 Testimony of Snhsoribina: Witnesses. — The court instructs the jurv, 
 that the mere fact that a person is a subscribing witness to a 
 will, docs not entitle his opinion of the competency of the tes- 
 tator to execute the same, to any more weight than th(> opinion 
 of any other witness equally credible and intelligent, and with 
 equal opportunities for judging; and if it hapjH'us that lie is 
 selected, at the moment, merely for the pui-pose of mei'ting the 
 legal requirements, his opinion as to the testator's strength of 
 mind may l)e of very little weight or importance. 
 
 The court instructs the jurv, that the weight of tlie evidence 
 from the opinions of subscribing witnesses, depends upon the 
 same considerations which affect the weight of the ()})inion of 
 any other witnesses upon the question of the tcsta^)r's com- 
 petency. "Whether a subscribing witness (;r not, wo must look
 
 IN CIVIL ACTIONS. 443 
 
 at tlie 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 accordingly. 
 
 UNDUE INFLUENCE. 
 
 Issue to be Tried. — Tlie jury are instructed, as a matter 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 ver- 
 dict will be, that it is his will or that it is not. 
 
 And the real inquiry to be determined is: Did the said A. I>., 
 deceased, make and execute the alleged will, in all its provisions, 
 of his own free will and volition, so that it now expresses 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? 
 
 No General Rule — What Must Appear. — The jury are instructed, 
 that no general rule can be laid down as to what constitutes 
 undue influence in this class of cases further than this, that in 
 order to make a good will a man must be a free as-ent, and feel 
 at liberty to carry out his own wishes and desires; and any 
 restraint, 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 j^urpose into 
 the making of his will, or any of its provisions, is undue influ- 
 ence 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. 
 
 That the influence exercised over a testator which the law 
 regards as undue or illegal, must be such as to destroy his fi-ee 
 agency in the matter of making his will; but it matters not how 
 little the influence, if the free agency is destroyed it vitiates tlic 
 ;u't which is the result of it; and the amount of undue influence 
 wliicli will be suflicicnt to invalidate a will may vary with the 
 strength or weakness of the mind of the testator; and the influ- 
 ence which would subdue and control a mind and will naturally
 
 4-i4r I N S T R f O TI O N S 
 
 weak, or one which had become impaired by ai2;e, disease, or 
 other cause, might have no effect to overcome a mind naturally 
 strong and unimpaired. 
 
 That to avoid a will on the ground of undue iullueiu-e, it 
 must l)e made to appear, by the evidence, tiiat it was obtained 
 by means of influence amounting to moral coercion, destroying 
 free agency, or by importunity which could not be resisted, so 
 that the testator was constrained to do that which was against 
 his actual will, and which iiiiluence he was unable to withstand, 
 or too weak to resist. Brick vs. Brick, (iO N. Y., 144; Jjcirnes 
 vs. Barnes, (SQ Me., 285. 
 
 The exercise of undue influence need not l)e shown by direct 
 proof; it may be inferred from circumstances; but the circum- 
 stances must be such as to lead justly to the inference that 
 undue influence was employed, and tliat the will did not express 
 the real wishes of the testator. 
 
 The jury are instructed, that any influence exercised upon the 
 testator, if proved, by reason of which his mind was so embai-- 
 rassed and restrained in its oi)erations that he was ]U)t master of 
 his own opinions and wishes, in respect to the disposition of his 
 estate, was undue influence within the meaning of the law. 
 
 That any command or importunity addressed to the testator, 
 if carried to such a degree as to contrtd t)r 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 (picstion invalid, though no force was used (,)r 
 threatened. 
 
 Undue Influence Must AfToct the Will, Etc. — That to invalidate a 
 will, on the ground of undue influence, it must appear, by a 
 preponderance of the evidence, that such undue influence wa> 
 practiced with respect to the will, or as to some matter or circum- 
 stance so connected with it, as to raise a presnn)i)ti()n that such 
 undue influence affected the provisions of the will; any degi-ee 
 of infliuuice exercised over the testator which docs not affe(;t the 
 making of the will or any of its provisions cannot invalidate it. 
 
 Influence Must Destroy Free Agency. — That the influence whirli 
 M'ill vitiate avill (^i the ground of undue inlliK;nce must amount
 
 IN CIVIL ACTIONS. 4-i5 
 
 to such a degree of restraint and coercion as to destroy the testa- 
 tor's free agency. To have that effect, in this case, the jury niust 
 believe, from the evidence, that the will in question was obtained 
 by such a degree of restraint and coercion upon the mind and will 
 of the deceased as to destroy his free agency in some matter con- 
 nected with the will, so that the will, itself, does not express his 
 wishes or desires, but those of some other person. It is imma- 
 terial 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. 
 
 Legitimate Influence. — The court instructs the jury, that any de- 
 gree of influence over another, acquired by kindness and atten- 
 tion, can never constitute undue influence within the meaning of 
 the law, and although the jur}^ ^^^^J 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, 
 tiien, such influence cannot be regarded, in law, as undue in- 
 fluence, and the verdict should be in favor of the validity of 
 the will. 
 
 It is not unlawful for one, by honest advice or pei'suasion, to 
 induce a testator to make a will, or to influence him in the dis- 
 position 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 improper conduct. Yoe vs. McCord, 7i 
 111., 33. 
 
 It is not unlawful for a person, by honest intercession and 
 persuasion to induce a will in favor of himself or any other per- 
 son; neither is it unlawful to induce the testator to make a will 
 in one's favor by fair speeches and kind conduct, for this does 
 not amount to that kind of compulsion, impro])er conduct or un- 
 due influence, which, in a legal sense, would render invalid the 
 will. To have such an effect it must amount to a moral force 
 and coercion, destroying free agency. It must not be the in- 
 fluence of affection and attachment, nor be the mere desire
 
 44C INSTKU( TIOXS 
 
 to gnitify the wishes of unotlicr, hut the compulsion in this case, 
 in order to render the will invalid must he t)f su<'h a degree and 
 character as to prevent the exercise of that discretion which is 
 essential to a sound disposing mind. Vickie vs. Carter^ 42 
 in., 376. 
 
 Letritimate Advice or Tcrsuasion. — That in this case, though the 
 Jury may helieve, from the evidence, that the said A. 1>. did use 
 Arguments and importunities to intluenee the deceased in the 
 making of the will in question, still this fact will, in no mannei*, 
 affect the validity of the will, if the jury further believe, from 
 the evidence, that such arguments and importunities did not de- 
 prive the deceased of his free agency or prevent him from doing 
 as he pleased with his property, even though the will might 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 tes- 
 tator, in making the will in question, acted upon the suggestions 
 and advice, or under the iulluence, 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 the will are not the 
 same as they would have been l)Ut for such suggestions, advice or 
 influence. 
 
 Cannot (Question Testator's Motives. — The jury arc instructed, that 
 if, from the evidence, they believe that the mind and memory of 
 the testator was sufficiently sound to enable him to know and 
 uii(lcr>taiid the extent, nature and amount of liis property, and 
 his ju.^t relati(jns to the natural objects of his bounty, and to know 
 and understand the l)usiness in which he was engaged, when he 
 executed his will, then the jui-y have no right to inquire into or 
 question the testator's motives for the disposition of his estate. 
 That is a question under the absolute d(jminion of the testator. 
 
 Motives May be Inquired Into, Wlien. — That while it is true that 
 a testator's motives for the disposition of his estate are not mat- 
 ters affecting the validity of a will, yet, this rule only applies in 
 ca.ses where it d(^es not appear that tin- testator was of unsound
 
 IN CIVIL ACTIONS. 447 
 
 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 by any insane delu- 
 sion regarding, etc., and that any of the provisions of the alleged 
 will were prompted by motives based upon, or arising out of, 
 such delusion, this would render the 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 further find, from the 
 evidence, that such belief was mifounded, and had in no manner 
 been reasonably evidenced to him, then the jury have a right 
 and ouo-ht to take these thino-s into consideration in determininc: 
 whether the testator was of sound mind when he signed his will. 
 
 Unlawful Cohabitation. — Tlie juiy are instructed, that illicit 
 sexual intercourse between a testator and his devisee, however 
 immoral and illegal it may be, does not necessarily render the 
 will of the testator invalid; nor could that circumstance, in any 
 manner, affect the validity of the will if it was made by hint 
 with a sound and disposing mind and memory, and as a free agent. 
 1 Red. on Wills, 531-533; Dean vs. Ne(jleij, 41 Penn. St., 312; 
 Eckert vs. Flowry, 43 Pen St., 46. 
 
 The jury are instructed, that if they believe, from the evidence, 
 that the testator and the said Mrs. P., before and at the time 
 the will was made, wei'C living in uulawful cohabitatiou, 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 bur- 
 den of proof is upon her to show that no such undue influence 
 was used. Leighton vs. Orr, 44 Iowa, 670; 1 Red. on Wills, 
 531-533. 
 
 Groundless Fears. — If the jury believe, from the evidence 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 sensitive, and that he
 
 448 INSTRUCTIONS 
 
 luul beeoine timid and fcarrnl and that he was in constant dread 
 of injury from the said E. J>. ; then, ahhou<^h the jury may be- 
 lieve, from the evidence, that no real cause existed for the said 
 testator to be ap[)rehensive of evil, or to fear injui-y from the 
 said E. B., and that such apprehensions and fear pi-oceeded from 
 a morbid delusion of the testator; still, if the jury believe, from 
 the evidence, that said will was the result or offspring of such 
 delusion, and does not ex})ress the real wishes and intentions of 
 the testator, then the jury should find that the said paper is not 
 the will of the said A. 1>. 
 
 If the jury believe, from the evidence in this case, that the said 
 A. l>.,at the time of the executing of the said paper, offered in 
 evidence as his last will and testament, was greatly advanced in 
 age, ill feeble health, and laboring under the fear of bodily hurt 
 {or imprisonment) 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 pa})er is not the will of the said A. B. 
 
 rrovisions of the Will May be CoiisidevHl. — That in dctcnnining 
 the (piestion of the validity of this will you have the riii'ht. and 
 it is your duty, to take into consideration the })rovisions of the 
 will itself, in connection with all the other evidence in the case 
 bearing upon the (piestion, whether the said A. B. was coerced 
 bv threats, or fear of bodily harm into making the will in (pies- 
 tion, 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.
 
 / 
 
 IN CIVIL ACTIONS. 4-19 
 
 WORK AND LABOR. 
 
 Implied Contract. — The court instructs the jury, that when a 
 contract for work and hibor is entered into, and the terms agreed 
 upon by the parties, with the understanding that it shall be re- 
 duced to writing, and one of the parties to the agreement, enters 
 upon the performance of it, without objection from the other 
 party, the contract in all its terms will be as binding as if it had 
 been reduced to writing. Miller vs. McMannw, 57 111., 126, 
 
 Promise to Pay Implied, Wlien. — While one person cannot 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 absence of a special con- 
 tract, a recpiest 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 Wolfw?,. City of Chicago, 26 111.^, 446 ; Alleti vs. 
 Richmond, etc., 41 Mo., 302. 
 
 The court instructs the jury, that when one person labors for 
 another with his knowledge and consent, and the latter volnn- v 
 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 proved, 
 fixing the price, then the laborer is entitled to have what his serv- 
 ices are reasonably worth. Trustees of Farmingtoii, etc., vs. 
 Allen, 14 Mass., 172. 
 
 That 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 
 
 29
 
 4-50 INSTRUCTIONS 
 
 piu-li work and labor, then, unless there is evidence to the con- 
 trary, a request to perlorni it may he inferred from these facts. 
 That when work and labor are done and performed for the 
 benefit of another, with his knowledge and consent, and he re- 
 ceives the benefit arising therefrom, then the law will presume 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. 
 
 Where no Price is Fixed. — If the jury believe, from the evidence, 
 
 that the plaintiff performed labor and services for the defend- 
 ant 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 reason- 
 ably worth. 
 
 Professional Services, Price Implied. — If the jury believe, from the 
 evidence, that the plaintiff rendered the professional 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 
 mav believe, from the evidence, such services were reasonaldy 
 worth, according to the usual charges of the {medical) 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 evidence, have been made therefor. 
 
 Warranty of Skill and Care Implied. — If the jury believe, from the 
 evidence, that the defendant employed the plaintiff to thresh 
 his grain at an agreed pi-ice, then the plaintiff was bound in hiw 
 to d(^ the Avork in a workmanlike numner. And should the jury 
 further believe, from the evidence, that the plaintiff, through 
 neo-liirence, want of care or skill, performed the work in a waste- 
 ful, and sh^venly, and unwoi-kmanlike manner, and that the de- 
 fendant was thereby damaged in an amount equal to, or greater 
 than, the sum claimed for the threshing, then the jury should 
 find for the defendant. 
 
 If the jury believe, from the evidence, that the plaintiffs were 
 the owners of, or in possession of, a threshing machine, wliii-h 
 they were using about the country for hire, and that the defend-
 
 IN CIVIL ACTIONS. 451 
 
 ant employed them to thresh his grain, at an agreed price, and 
 that the plaintiffs knowingly undertook and performed su(;h 
 threshing with a machine defective and out of repair, and that 
 the defendant was thereby damaged, tlien the defendant has the 
 right to offset the amount of such damages against the plaintiffs' 
 claim for threshing. Garfield vs. Ilnls^ 54 111., 427. 
 
 That when a jierson engages to work for another, he im- 
 pliedly contracts tliat he has a reasonable amount of skill for 
 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 
 emploA^er, will prevent him from receiving the full contract 
 price. The employer may recoup or set-off against the contract 
 price the damages he may sustain for want of reasonable skill, 
 or the observance of reasonable care and diligence in the per- 
 formance of the work, if the same are proved by the evidence. 
 2 Pars, on Cont., 54; Parker vs. Piatt, 74 111., 430. 
 
 Tliat when a person holds himself out to the public, or to 
 those hiring him, as a person having the requisite experience 
 and skill to 23erform any work or service requiring special 
 knowledge or skill, lie 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 the jury believe, from the evidence, that the plaintiff repre- 
 sented to the defendant that he was experienced and skilled in 
 the business of {making 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 orxiinarily 
 good and workmanlike manner; and if the jury further believe, 
 from the evidence, that the plaintiff was not skilled or experi- 
 enced in said business, and did not do his work in an ordinarily 
 good and workmanlike manner, then the defendant had a i-ight 
 to discharge him from such employment. 
 
 If the jury believe, from the evidence, that some time on or 
 about, etc., the defendant employed the plaintiff to manufacture 
 {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 tlie defendant was therebv damaged to the
 
 452 INSTRUCTIONS 
 
 extent of the v:ilue of such services, then the ])hilntii"f is not en- 
 titled to recover for any }>:irt of such labor; provided,- the jury 
 further believe, from the evidence, that the defendant discharged 
 the plaintiff within a reasonable time after discovering the nuui- 
 ner in which such work was done. 
 
 If the jury believe, from the evidence, that the plaintiff was 
 employed by defendant to superintend {the manufacture of 
 cheese) for him, and that he worked for the defendant at that 
 business, for a time, still, if the jury further believe, from the 
 evidence, that his work was not done in an ordiiuirily skillful 
 and workmanlike manner, and that the defendant was thereby 
 damaged, and that during tlie progress of the work the defend- 
 ant did not, and by the exercise of reasonable care in that behalf 
 could not, know of the defective manner in which said M'ork was 
 done, then the jury should set off the amount of such damage 
 an-ainst the value of the work so done by the plaintiff. 
 
 Ordmary 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 oidy of 
 extraordinary endowment and capacities, but such as is gener- 
 ally possessed by men engaged in the same business. Wauyli vs. 
 Shuiik, 20 Penn. St., VM). 
 
 Acceptance of Work. — If the jury believe, from the evidence, 
 that the defendant inspected the work in (pujstion, and knew its 
 character and quality, and, with such knowledge, accepted the 
 work done and materials furnished by the plaintiff as in com- 
 pliance with and a full performance of the contract on plaintiff's 
 part, then the j^lahitiff is entitled to recover whatever, if any- 
 tliing, the jury shall find, from the evidence, is unpaid upon the 
 contract i:)rice. Strawn vs. Cogswell^ 28 111., 457. 
 
 The jury arc instructed, that no particular words or form is 
 necessary to amount to an acceptance of work done or nuiterial 
 furnished. Such acceptance may be by words or acts, if they 
 are such as show that tlie party knew the character and quality 
 of the work and material, and was satisfied therewith.
 
 IN CIVIL ACTIONS. 400 
 
 Usual troing Wages Implied, When. — That when a person employs 
 a person to labor for hhn, without any contract as to price, and, 
 with knowledge of all the facts, accepts the services without 
 complaint, he will be presumed to have contracted 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, will not excuse 
 the employer from paying such price. If he desires to relieve 
 himself from such liability, the employer ought to discharge the 
 servant. 
 
 Not Bound by Acceptance, When. — The court instructs the jury, 
 that when a party accepts work done for liim, or material fur- 
 nished, he does not thereby waive objections to any latent 
 defects that may be in the work or in the materials, and which, 
 at the time of acceptance, are not open to inspection and are 
 not known to him. Korf vs. Lull., TO 111., 420; Garfield vs. 
 Huls, 54 Ills., 427. 
 
 Though the jury may believe, from the evidence, that the 
 plaintiff performed the work in question, and that the defendant 
 saw the work, from time to time, as it was being done, and made 
 no complaint in reference thereto, but accepted the work a> 
 done; still, if the jury further believe, from the evidence, that 
 the defendant was not a judge of such wo-rk, or that the alleged 
 defects, if they existed, could not have been 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 char- 
 acter of the work, if such defects exist; and if the jury 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 ^^as damaged thereby, then the jury may deduct the 
 amount of such damage from the price of the work, as found 
 by <>he jury under the evidence. 
 
 ENTIRE CONTKACT. 
 
 Fulfillment Prevented by Defendant. — If the jury believe, from 
 the evidence, that the plaintiff has furnished the material and 
 completed the building, mentioned in the contract, in a good
 
 454 INSTKUCTIOXS 
 
 luid workmanlike manner, then, altli(^ui;-h the jni-y may furtlior 
 believe that the same was not conipleted within the time limited 
 in the contract in that behalf; still, if the jury further believe, 
 from the evidence, that the delay complained of was caused by 
 the defendant himself, and witlujut fault <»n the part of the 
 plaintiff, then the plaintiff is entitled to recover the balance, if 
 any, unpaid upon the contract price, with (.yv>) per cent, interest 
 thereon, from the time the same was payable by the terms of 
 the contract. Strawn vs. Cogsioell, 28 111., 457. 
 
 Although the jury 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 the jury 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 fur- 
 nish 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 discharo-ing the plaintiff, nor affect the plaintiff's right to 
 recover in this suit; provided, the jury find that defendant did 
 dischar<Te the plaintiff for such reason before the expiration of 
 the time for which he was hired, and that plaintiff' has sustained 
 damage tliciel)y. 
 
 Substantial PerJoniiaiiee. — 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 innnaterial particulars, or 
 with variations, assented to by the employer, or when the em- 
 ployer accepts the work as and for a completed performance of 
 the contract, then the woi-kman may recover for his work and 
 labor what the same are reasonably worth. White vs. Hewitt, 1 
 E. D. Smith, 395; Dermott vs. Jo7ies, 23 How., 220; Dufro 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 lixcd 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 promise by him 
 to pay such sum therefor as the benelit which he receives is
 
 IN CIVIL ACTIONS. 455 
 
 reasonably worth to him. Sno^o \\i.Ware, 13 Met., 42; Vcazie 
 vs. Bangor, 51 Me., 509; Blood vs. Enos, 12 Vt., 625. * 
 
 Entii-e Contract— Leaving Without 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, and without his 
 fault, before such time has expired, he can recover nothing for 
 the work he has done; and this rule holds as well where the 
 wages are computed by the month, or week, as where they ai-e 
 computed for a gross sum for the whole time. The contract in 
 such cases is entire, and the performance of the whole service 
 is a condition precedent to the laborer's right of recovery. 2 
 Pars, on Cont., 36 ; Miller vs. Goddard, 34 Me., 102 ; Reab vs. 
 Moor, 19 Johns, 337; Wehsterv^. Wade, 19 Cal., 291. 
 
 The court instructs the jury, that a contract to work for a given 
 number of months, at a fixed price per month, is an entire con- 
 tract for the wliole number of months agreed upon, and when a 
 person agi-ees 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 service before the 
 expiration of the number of months agreed upon, without a 
 good and sufficient cause, and without the consent of his em- 
 ployei", he cannot recover for the work wliich he has already 
 performed. Hensell vs. Errivkson, 28 111., 257; 2 Pars, ou 
 Cont., 36. 
 
 The court instructs the jury, 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 leav- 
 ing. 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 cannot recover for 
 the time he has labored. 
 
 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
 
 450 INSTIirCTIONS 
 
 monthly puyiiieiits for such services, by tlio terms of the same 
 <-()iitr;ict, aiul that he failed t(» make such payments as stipuhited, 
 then, upon su(;h failure, the plaintiif had a rii^ht to abandon the 
 service and to collect of the defendant what the services ren- 
 dered woidd anu)unt to at the stipulated price. Folliott vs. 
 Hunt, 21 111., O.U. 
 
 Burden of I'roof. — If the jury believe, from the evidence, that 
 the plaintiif made a contract with defendant to work for him 
 {eight) months from, etc. (or to work from that time until defend- 
 ant's corn should be o:athered in the fall), at an agreed j)rice per 
 month, and if the jui-y furtlier believe, from the evidence, that 
 before the end of the term so a<i;reed upon the plaintiff left the 
 employ of the defendant, then the burden of proof is upon the 
 plaintiff to show, by a preponderance of evidence, that he left 
 with defendant's consent, or was discharo-ed by him, or that the 
 ])laintiff had just and reasoiud)le cause for leaving when he did, 
 otherwise he can recover nothing for the work done under such 
 contract. 
 
 Pretext for Leaving-. — If the jury believe, from the evidence, 
 that the j^laintiff agreed to work for the defendant, at a stipu- 
 lated price for the period of {one yeai'), if they could agree, then, 
 in order to justify the plaintiff in leaving defendant s service 
 before the expiration oi' that period, if it appears from the evi- 
 dence, that he did so leave, there must have been some good 
 reason for disagreeing with, and becoming dissatisfied with, the 
 defendant. The plaintiff would have no right to nuxnufacture a 
 pretext for disagi'ceing with tlu; defendant, and then take advan- 
 tage of that. AVhethei- such good reasons did exist in this case 
 is a question of fact to be determined by the jury from the 
 evidence. 
 
 Must \w Substaiitlal ( auso for Lcaviufr, Etc. — The court further 
 instructs the jury, that when a person hires out to work for 
 another for a certain fixed time, he has no right on account of 
 any frivolous or fanciful disagrecir.ent witli his employer, or his 
 employer's family, to Krcak such contract ami leave his em- 
 ployer's service. In or(lcr to justify such leaving tlu'i'e must 1)C
 
 IN CIVIL ACTIONS, 
 
 45 
 
 some good and substantial cause, wliicli the jury can say, from 
 the evidence, would justify a reasonable 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 regard- 
 ing the right of recovery of an employe, leaving his employer's service 
 without good cause, before the expiration of the time for which he was hired, 
 is not acknowledged in some states. It is held, in these states, that, in 
 such eases, if the employer has derived any benefit from the labor per- 
 formed, 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 five instruc- 
 tions will be proper 
 
 Entire Contract— Rule of Damages. — The law is, that when a per- 
 son agrees to work for another for a fixed and definite period ^ 
 and he performs labor under such contract which is of benefit 
 or value to the employer, and then leaves before the expirajtion 
 of the term for which he was hired, without his employer's con- 
 sent, and without reasonable cause, although he cannot enforce 
 payment, according to the contract, he is entitled to recover 
 what his services are reasonably worth over and above the dam- 
 ages sustained by the employer from the breach of the contract 
 by the lal)orer, less any x^ayments which may have been made 
 on the contract. 2 Pars, on Cont., 38; Pixler \s. Nichols, 8 
 la., 106; Britton vs. Turner, 6 N. II., 481; Fenton vs. Clarke, 
 11 Yt, 560; Ralston vs. Kohl, 30 Ohio St., 92; EaHn vs. 
 Harrison, 4 McCord, 249. 
 
 If the jury 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 the jury may further 
 find that the work Avas done under an agreement to work for a 
 definite time, at a given price, and that plaintiff left such em- 
 ployment before the expiration of that time, without defendant's 
 consent, and without any good or reasonable cause therefor, 
 still, the plaintiff is entitled to receive pay for such services 
 what they were reasonably worth; unless the jury further be- 
 lieve, from the evidence, that the defendant sustained damage 
 in consequence of plaintiff's so leaving, in which case plaintiff'
 
 45S INSTRUCTIONS 
 
 Avill 1)0 entitled to reeover what siu-li serviees were reasonably 
 worth over and above such daniai^es, it" anything, less the l>ay- 
 ments whieh have been made thereon, if any are shown l)y the 
 evidence. 
 
 If the jury l)elieve, from the evidence, that plaintiff per- 
 formed lal)or fur the defendant, as claimed by him, and that 
 such labor was piM'formed under a contract to work for defend- 
 ant for a fixed and detiuite period of time, and that such services 
 were of benefit or value to the defendant, and have not been 
 paid for in full; and, further, that defendant left defendant's 
 employ before the expiration of said period of time without any 
 good or reasonable cause therefor, then the })]aintiif is entilU'd 
 to recover \vhat such services were i-ea'sonably woith, if anything^ 
 over and above the damages sustained by the defendant, if any 
 are shown by the evidence to have been sustained l)y ]rmi,on ac- 
 count of the plaintiff's so leaving, less any payments which have 
 been made to the plaintiff on account of such work, if any are 
 shown by the evidence. 
 
 The court instructs tlie jury, as a matter of law, that if one 
 2">ers()n agrees to work for another for a tixetl 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 la- 
 borer leaves the service of his employer before the expiration of 
 the full time of his employment, without some good and reason- 
 able cause therefor, aiul against the will of the employer, then 
 he will (jnly be entitled to receive for the work actually done 
 what the same was reasonal)ly worth, over and above the dam- 
 ao-es, if any, sustained by the employer, in consequence of the 
 laborer leaving before the time fixed in that behalf. 
 
 If the jury believe, from tiie 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 montlis from, etc., at the agriMMl price of s 
 
 per month, to be })aiil montldy, and that the work su(ul for in 
 this case was done under that contract; and if the jury further 
 believe, from the evidence, that without any good or reasonable 
 cause therefor the ])laintiff left the defendant's (Muploy Ixd'ore 
 the expiration of the time fixed in the contract, and without
 
 IN CIVIL ACTIONS. 
 
 459 
 
 the consent of defendant, and that the defendant was thereby 
 damaged, then the plaintiff can onlj recover the reasonable value 
 of his services over and above such damage; and if the jury be- 
 lieve, from the evidence, that such services were reasonably worth 
 no more than the amount of such damage, then the jury should 
 tind for the defendant. 
 
 Must Demean Himself Respectfully. — The court instructs the jury, 
 that when a person is employed by another he must, in his inter- 
 course with his employer and those having control of his busi- 
 ness, and with those doing business with such employer, 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 any of these requirements 
 would be good ground for discharging such person before his 
 term of employment expires. Hamlin et at. vs. liace, 78 111., 
 4^2. 
 
 Leaving on Account of Sickness. — The jui-y are instructed, tliat 
 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 agreed to work for a fixed and si^ecified time, and that 
 plaintiff left defendant's employ before the expiration of that 
 time; still, if the jury farther 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 tlie agreed price, if the jury 
 find, from the evidence, that there was an agreed price between 
 the parties; and if the jury find there was no agreed price, then 
 what such labor was reasonably worth. Htibhard vs. Belden, 
 27 Yt., 645; Gree^i vs. Gilbert, 21 Wis., 395. 
 
 Discharged or Compelled to Leave, Etc. — The court instructs the 
 jury, that while the law is that a person who engages to labor 
 for another for a specified period, at a given price, has no right 
 to recover for his work, etc., unless he performs his entire contract, 
 or is excused therefrom by the employer, or is in some manner 
 justified in quitting before the expiration of the time; yet if
 
 400 INSTUrCTIONS 
 
 he is prevented from perfoi-iniiiij; his contract hy tlie employer, 
 or is discharged from his employment, or is, fi'om ill-usage^ 
 compelled to a])andon the service, he may then recover what his 
 labor, actually performed, Avill amount to at the contract price. 
 Ariffel vs. llanna, 22 111., 42!t. 
 
 Discliarfrc Without Good Cause, Measure of Damages. — Tliat when one 
 person hires another to work for him for a dctinitc, lixcil time, 
 at an agreed price for the whole time, or at so much })er month, 
 the employer cannot legally discharge the workman with(jut 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 \vorkmau for the full amount of his wages f(jr the 
 whole time covered by the original agreement, except that in 
 case the workman earns anything, or by reasonable exertion and 
 effort might have earned something during the unexpired portion 
 of the time, in which case the employer will be entitled to a 
 credit for the sum so earned, or that might have been earned 1)V 
 the use of reasonable effort and diligence directed to that end. 
 Foioler vs. Armour, 24 Ala., 194; Ivhuf vs. Steiren, 44 Pcnn. 
 St., 99; RicJcs vs. Yates, 5 Ind., 11 r>. 
 
 If the jury believe, from the evidence, that on or about, etc., 
 the defendant employed the plaintiff to nuike cheese for him 
 during the cheese-making season of A. D., 18 — , and agreed to 
 
 pay him for his services at the rate of 8 per day, and that 
 
 afterwards the plaintiff commenced to work for defendant 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 \\il!. then the ])laiiitirt' is entitled to 
 
 recover at the rate of $ 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 dis- 
 charge, if the jury believe, from the evidence, that he w\as 
 during any portion of said time necessarily unemployed by 
 reason of such discharge. 
 
 Workman Must Avoid I'nnecessary Damaj^e. — The (;ourt instructs the 
 jni-y, that when a person hire<l to W(jrk for another for a fixed 
 and definite time is wrongfully discharged by his employers
 
 IX CIVIL ACTIONS, 
 
 461 
 
 before tlie time expires, he must use all reasonable ineaus aud 
 efforts to find other employment during the unexpired time 
 covered by the contract, so as to avoid unnecessary 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 discliarge, and which could not be avoided by 
 reasonable effort on his part. 
 
 Services by a Member of the Family. — The court instructs the jnry, 
 that 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 serv- 
 ices are rendered by one who is a member of the family, receiv- 
 ing 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, 
 tliat it was understood by the parties that the services were to 
 be paid for. Thorp vs. Bateman^ 37 Mich., 68 ; Smith vs. John- 
 son^ 45 la., 308; Sprague vs. TFa^cio, 38 Vt., 139; Davis vs 
 Goodnow^ 27 Vt., 715. 
 
 If the jury believe, that during the time in question, the 
 plaintiff 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 meml)er of the family, 
 then the law will not imply a promise on the pai-t of the defend- 
 ant to pay for the services rendered during that time, and in 
 such case he should not recover for such services; unless tlic jury 
 further believe, from the evidence, that defendant has ];)romised 
 to pay for the same, or unle^^s the facts and circumstances proved 
 lead the jury to believe, from the evidence, that there was an un- 
 derstanding between the parties that plaintiff w^as working for 
 wages. 
 
 If the jury believe, from the evidence, that plaintiff was a 
 member of defendant's family during the whole of the time for 
 which the services in question are cliai'ged, and was treated and 
 cared for the same as the other members of his family, then there
 
 462 ixsTiircTioNS 
 
 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 the henellt thereof. 
 
 Stranger a Member of the Family. — If the jnry believe, from tlie 
 evidence, that the plaintiff worked for defendant, and that his time 
 and labor were reasonably worth more than his l)oanl and washing, 
 then the plaintiff is entitled to recover what liis time and services 
 were reasonably w^orth, over and above what he has received or 
 been paid, if anything, as shown by the evidence; nnless the evi- 
 dence further shows that the plaintiff agreed to do the work for 
 his board and washing, or that there was some other special con- 
 tract between the parties fixing the price of the labor. TFcV/.s 
 vs. Perkins, 43 Wis., 160; Sword vs. Keith, '>! Mich., 247. 
 
 If the jury believe, from the evidence, that the }daiutiff 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 de- 
 fendant can avail himself of the defense that plaintiff agreed to 
 work for his board and washing, the defendant must prove the 
 existence of such a contract by a preponderance of evidence. 
 And if the jury iind tliat the evidence, bearing upon tliis point, 
 is in favor of the plaintiff, or that it is eipially balanced, then 
 the jury should allow the plaintiff what his services were reason- 
 ai)lv worth, over and above what he has had, as shown by the 
 evidence. 
 
 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. Miller vs. 3Iiller, 16 111., 296; Hart vs. Ifess, 41 Mo., 
 441; Wells \^. PerJcins, ^Z AVis., 160; Adams vs. Adams, T^ 
 Ind., 50. 
 
 If the jury 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, the jury must believe, from tlie evidence,
 
 IN CIVIL ACTIONS. 4G3 
 
 that at the time the services were rendered, it was expected by 
 both parties that he should be paid for such services, or else, 
 that the circumstances were such as to reasonably justify the 
 plaintiff in expecting pay for his services. 
 
 If the jury believe, from the evidence, that when the services 
 in question were performed, the plaintiff lived with his father 
 the same as his other children did, and apparently the same as 
 he had before coming of age; then, to entitle him to recover, it is 
 incumbent upon the plaintiif to prove, by a preponderance of 
 evidence, an express hiring, or promise to pay, or circumstances 
 from which such hiring or promise may reasonably be inferred. 
 Steel vs. Steel, 12 Penn. St., 64. 
 
 When Promise may be Iiifen-ed. — If the jury believe, from the evi- 
 dence, 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 wc^rk of a servant, 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. 
 
 Emancipation of Minor A father by agreement with his minor 
 
 child, may relinquish to the latter the right which he would other- 
 wise have to his services, and may authorize those who employ 
 him to pay him his wages, and he will then have no right to de- 
 mand those wages, either from the employer or from the child. 
 Monaghan vs. School Dist., etc., 38 Wis., 100. 
 
 Minor Can Only Disafrirm Contract After Majority — (By Statute).— 
 By the laws of this state a minor is l)ound by his contracts unless 
 he disaffirms them within a i-easonaljle time after attaining his 
 majority — disaffirmance before majority is of no effect. If a 
 minor renders personal services under a contract, and accepts 
 payment for them according to the contract, he cannot maintain 
 an action by his next friend to recover again. Murphy vs. John- 
 son, 45 la., 57. 
 
 Gratuitons Labor. — That while the law will in general hold a 
 party for whom work has been performed, with his knowledge
 
 464 INSTRUCTIONS 
 
 aiiil coiisoiit, li;il)le to pay for the same yet, a party is under no 
 ol)ligatioii to pay for \\'(»rk tloiie Ky one who \dhinleers to do it 
 without pay, or as a gratuity; and the fact that such work has 
 been henetieial to the party for wiiom it was done, creates no obli- 
 gation to pay for it, if, at the time it was being doiu', it was 
 understood by the parties to be gratuitous. 
 
 If the jury believe, from the evidence, that the ])hiiiitiff 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 
 l)Oth the parties regarded the same as a donation, or as an e([uiv- 
 alent for living at defendant's house, then he cannot recover for 
 such services in this suit. Br(>>MjJito)h vs. Suiaji, .">!,) 111., 440; 
 Jfor/'is vs. Barnes, 35 Mo., 412. 
 
 That labor done, and services rendered by one person for 
 juiother, without the knowledge or request of the person for 
 whom the work is done or service rendered, no matter how mer- 
 itorious or beneficial to the latter, afford no ground of action in 
 favor of the person doing the work, or rendering the service. 
 Bartlioloraeio vs. Jacl'son, 20 John., 28. 
 
 And in this case, though the jury 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 the 
 jury further believe, from the evidence, that such services were 
 rendered without the knowledge or request of the defendant, and 
 that he has never agreed to pay for the same, then tlie plaintiff 
 cannot recover for such services. 
 
 Ai?recd Price Must Govern. — If the jury believe, fi'om the evi- 
 dence, that the plaintiff rendered the services for the defendant, 
 as claimed and sued for in this case, at an agreed price, and that ' 
 ho has not been fully paid for the same, then the jury should 
 render a verdict in favor of the plaintiff for such an amount aa 
 the services actually rendered would (uime to at the stipu- 
 lated price, less such an amount as the jui-y believe, from the 
 evidence, has been paid t hereon. 
 
 Contract Presumed to Continue, When. — The court instructs the 
 jury, that where a person enters the employ of ai.other Uiidcr a
 
 IN CIVIL ACTIONS. 465 
 
 special contract, fixing the time of service and the price to be 
 paid therefor, and he continues in such employment after the 
 term has ended, without any new contract or agreement, he will 
 be considered as holding under the original contract, so far a> 
 the price of his labor is concerned. G. ds B. S. 3Ieh. Co. vs. 
 Bulkley, 48 111., 189; Vail vs. N. J., etc., Co., 32 Barb., 564; 
 Ranch vs. Albright, 36 Penn. St., 367. 
 
 If the jury believe, from the evidence, that there was no con- 
 tract between plaintiif and defendant that plaintiff should work 
 for defendant for any definite j)eriod of time, the jury should 
 find for the plaintiff for the time he did work, if any, at the 
 rate per month agreed upon, if the jury find, from the evidence, 
 that any price was agreed upon between the parties. 
 
 Evidence of Reasonable Worth. — 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 value 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, the jury find for the plaintiff, and they believe, 
 from the evidence, that no special price was agreed upon, then 
 in arriving at the value of the services, you sliould consider the 
 means of knowledge of such value possessed by the several wit- 
 nesses who have testified in relation to such value. Those 
 witnesses who helped to do the work, 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. 
 
 Burden of Proof of Payment. — The jury 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 testimony as to such payments, the 
 rule of law is, that if the weight of evidence against the pay- 
 ments exceeds, or even only equals the weight of evidence in 
 
 80
 
 466 INSTRUCTIONS 
 
 favor of their having been made, then the jury shoukl consider 
 such payments not proved. 
 
 Offer to Compromise. — The jury are instrncied, fliat tlie plaintiff 
 is in no manner bound by any offer that he may liave made to 
 
 accept $ in settlement of his claim; provided, the jury 
 
 believe, fi-om the evidence, that such offer was made solely for 
 the purpose of bringing about an amicable settlement with 
 defendant, or by way of comjiromise ; nor in such case should 
 such offer be regarded as an admission that no more than that 
 sum was due. Monell vs. Bu/'iis, 4 Denio, 121. 
 
 Effect of Pleading Set-Off. — The court insti-ucts the jury, that the 
 defendant has pleaded in this case a plea of set-off, acconn)anied 
 by a bill of particulars, in which he has charged the plaintiff for 
 board and clothes, etc., during the entire period of time in 
 question, and the fact of j-ylcading such plea and making such 
 charges are circumstances pr()2)er to be taken into considci-atioii 
 by the jury, together with all the evidence in the case, in deter- 
 mining whether or not it was understood by defendant at the 
 time that plaintiff was performing the services in question with- 
 out any expectation of pay therefor. 
 
 The court instructs the jury, that the defendant has pleaded 
 in this case non-assumpsit and set-off; that by thus ])li'a(ling the 
 defendant does not admit the contract relied upon by the plain- 
 tiff; an implied contract as well as a special contract is denied 
 by the plea of non-assumpsit, and the plaintiff is required to 
 prove his case, by a preponderance of the evidence, before he is 
 entitled to recover, notwithstanding the plea of set-off; and mi- 
 less the jury find the greater weight of evidence in favor of the 
 plaintiff's claim, they should iind for the defendant. 
 
 One promise is a sufficient consideration to suppoit another 
 promise, and where a person does an act beneficial to another, 
 or agrees to do so, that forms a sufficient consideration to sujiport 
 an agreement to i)ay for the same. 
 
 Written Contract Varied by Parol. — A contract under seal mav be 
 changed by a subsequent verbal agreement to pay an additioiuil 
 sum for the same work and materials mentioned in the ujii'ce-
 
 IN CIVIL ACTIONS. 467 
 
 meiit. And in this case, if the jnry believe, from the evidence, 
 that there was a subsequent verbal agreement between the par- 
 ties, varying the terras of the written agreement, and that the 
 work in question was done in compliance with the latter agree- 
 ment, it will be binding between the parties. Cook vs. MurpTuj^ 
 70 111., 96.
 
 PAET lY. 
 
 Instructions in Criminal Cases.
 
 PART IV. 
 
 mSTRUCTIOXS m CRIMmAL CASES. 
 
 DEGREE OF PROOF— WEIGHT OF EVIDENCE. 
 
 Note.— The rules already given under the head of "Credibility of Wit- 
 nesses— Weight of Testimony," 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. 
 
 Presuiiiptiou of Innocence— Degree of Proof. — The court instructs 
 the jury, that, in this case, the haw raises no presumption 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 rea- 
 sonable 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. 
 
 Every Alleg:ation 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. 
 
 Prisoner Entitled to Every Reasonable Hypothesis. — The defendant 
 is entitled to every presumption of innocence compatible with 
 the evidence in the case, and, if it is possible to account for the
 
 472 INSTKrcTIOXS 
 
 death of the deceased upon any re:isonal»le hypothesis other than 
 tliat of tJie i>;uih of tlie defcnthmt, then it is your (hity to so 
 account for it, and find the defendant not <:;uilty. 
 
 The court instructs the jury, that it is not enouy-h that you 
 firndy believe, from tlie evidence, that it is more pi'obable that 
 the defendant kiHed the deceased, as charged in the indictment, 
 than it is that lie died from some other cause, but you must be 
 satisfied, beyond a reasonable doubt, from all the evidence, that 
 he is guilty as charged in the indictment, or else it is your sworn 
 duty to find him not guilty. 
 
 The court instructs the Juiy, that if tliere is any other reasona- 
 ble hypothesis arising out of the evidence given in this case, 
 except the one that the defendant unlawfully killed the de- 
 ceased, then the defendant is entitled to the benefit of such 
 hypothesis, and he ought to be acquitted. 
 
 Probability not Siifllcient. — The court instructs the jury, that in 
 ci-iminal cases, even whei-e the eviden(;e is so strong that it 
 demonstrates the prol)a])ility of the guilt of the party accused, 
 still, if it fails to establish, beyond a i-easonable 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. 
 
 The jury are instructed, that mere j)rol)abilities are not suflS- 
 cient to warrant a conviction; nor is it suilicient that tlie greater 
 weight or preponderance of the evidence supports the allega- 
 tions of the indictment; nor is it sufficient, that upon the doc- 
 trine of chances, it is more probable that the defendant is guilty. 
 To warrant a conviction of the defendant, he must be proved to 
 be guilty so clearly and conclusively that there is no reasonable 
 theory upon which he can be innocent, when all the evidence iu 
 the case is considered together. 
 
 Preponderance of Evidence not SrilTicioiit. — Tliat, In law, the ac- 
 cused is always presumed to Ije innijcent until liis n-iiilt is i-stab- 
 y lished by evidence; and, to authorize a conviction, such guilt 
 must be established beyond a reasonable doubt — a mere pre- 
 ponderance of evidence is not sutficient.
 
 IN CRIMINAL CASES. 473 
 
 Crime Must be Proved Beyond a Reasonable Doubt. — The court in- 
 structs the jury, that before a conviction can be rightfully 
 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 reascniable doubt. 
 
 That, as a matter of law, the defendanis are presumed to be 
 innocent of the crime charged in the indictment until such time 
 as the guilt of the parties charged is pi-oved, as alleged, by com- 
 petent evidence, beyond any reasonable doubt. 
 
 All the Evidence Should be Considered. — That in order to faiily 
 determine whether the defendants are proven guilty of tlie 
 crime of (burglary), in manner and form as charged in the in- 
 dictment, 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 dis2:iassionate consideration 
 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. 
 
 Better That Many (iuilty Persons Escape, Etc. — The court instructs 
 the jury, that the policy of our law deems it better that many 
 guilty persons should escape i-ather than that one innocent person 
 should be convicted and punished; so that, unless the jury, after 
 a careful and thorough consideration of all the evidence in the 
 case, can say and feel that every material allegation in the 
 indictment is proved, beyond a reasonable doubt, the jury should 
 find the defendant not guilty. 
 
 Juiy Should Endeavor to Reconcile Testimony. — The jury are in- 
 structed, that in passing upon the testimony of {defendanf s) 
 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 differences or contradic- 
 tions in their testimony, if any exist, to mistake or misrecollec- 
 tion, rather than to a wilful intention to swear falsely.
 
 4 74 INSTRUCTIONS 
 
 Want of Motive. — That \v\wn the evidoiico fails to show any 
 inotivc to coiiiiuit the crime charij^od, on the i)art of the accused, 
 this is a circumstance in favor of his innocence. 
 
 And, in this case, if the jury find, 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 which the jury ouo;ht to consider in con- 
 nection with all the other evidence in the case in making up 
 their verdict. Cloxujh vs. State^ 7 Neh., 320. 
 
 Accused Need \()t Testily. — 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 oljliga- 
 tion to do so, and the statute expressly declares that his neglect 
 to testify shall not create any presumption against him. 
 
 Failure to Testify — No Presumption At,-ainst Defendant The court 
 
 instructs the jury, that Avhile the statute of this state provides 
 that a person chai-ged with ci-iiue may testify in his own behalf, 
 he is under no obligation to do so; and the statute expressly 
 declares that his neglect to testify shall not create any pi-esump- 
 tiou against him. The jury should decide tlic case with I'cfer- 
 ence alone to testimony actually introduced before them, and 
 without reference to what might, or might not, have been proved, 
 if other persons had testified. 
 
 Testimony of the Accused to be Weiglied by the Jury. — The court in- 
 structs the jui-y, that, although 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 testimcjny; and, in 
 considering what weight should be given it, the jury should take 
 into consideration all the facts and cii-cumstances sui-rounding 
 the case, as disclosed by the evidence, and give the defendants' 
 testimony only such weight as they believe it entitled to, in view 
 of all the facts and circumstances proved on the trial. 
 
 That, although ihe defendants have a right to be swoni, and 
 to give testimony in their own behalf, still, their credii)ility and 
 tho weight to hi- attached to such testimony are inattei-s exclu- 
 sively for the jury; and tlieir interest in the result of the trial is
 
 IN CRIMINAL CASES. 4(0 
 
 a matter proper to be taken into consideration by the j ury in de- 
 termining what weight ought to be given to their testimony. 
 
 Testimony of the Accused Should be Considered by the Jury. — That tlie 
 jury have no right to disregard the testimony of the defendant 
 (m the ground alone that he is a defendant, and stands charged 
 with the commission of a crime. The law presumes the defend- 
 ant 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 testimony, 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 com- 
 plained of, the pistol was accidentally discharged, they should 
 give the defendant the benefit of the doubt and acquit him. 
 
 Circumstantial Evidence Competent, Etc. — The court instructs the 
 jury, that circumstantial evidence is legal and competent in 
 criminal cases; and if it is of such a character as to exclude 
 every reasonable hypothesis, other than that the defendant is 
 guilty, it is entitled to the same weight as direct testimony. 
 
 Circumstantial Evidence Deflned. — The court further instructs tlie 
 jury, that what is meant by circumstantial evidence in criminal 
 cases, is the proof of such facts and circumstances connected with 
 or surrounding the commission of the crime charged, as tends 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 reason- 
 able doubt, then such evidence is suflicient 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 evi- 
 dence, are guilty. Laio vs. State, 33 Tex., 37. 
 
 Facts Must all be Consistent witli Guilt and Inconsistent with Innocence. 
 
 The jury are instructed, as a matter of law, that where a con- 
 viction for a criminal offense is sought uj^on circumstantial evi- 
 dence alone, the people must not only show, by a preponderance 
 of evidence, that the alleged facts and circumstances are true, 
 but they must be such facts and circumstances as are absolutely
 
 476 INSTRUCTIONS 
 
 iiiooiiipatible, upon uny roasoimblc hypothesis, with the iimo- 
 cence of the accused, tuicl incapable of e.\phinatit)n, upon any 
 reasonable hypothesis, other than that of the guilt t>f the 
 accused. 
 
 And, in this case, if all the facts and eii'cuinstances, relied on 
 by the people to secure a conviction, can be reasonably accounted 
 for, upon any theory consistent with the innocence of the defend- 
 ant, then the jury should ac(piit him. 
 
 In criminal cases where the prosecution rely upon circumstan- 
 tial evidence alone for a conviction, it is not enough that all the 
 circumstances proved are consistent with and point to the defend- 
 ant's guilt. To authorize a conviction upon circumstantial evi- 
 dence alone, the circumstances must not only all be in harmony 
 with the guilt of the accused, but they must be of such a char- 
 acter that they cannot reasonably be true, in the ordinary nature 
 of things, and the defendant be innocent. 
 
 That 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 
 rational conclusion, or reasonable hypothesis, and such as to leave 
 no reasonable doubt in the minds of the jury of the defendant's 
 guilt. 
 
 Decree of Certiuiity Reiiiiirod. — The rule of law is, that to warrant 
 a conviction on a criminal charge upon circumstantial evidence 
 alone, the circumstances should be such as to produce neai-ly the 
 same degree of certainty as that which arises from direct testi- 
 mony, and sufficient to exclude all reasonable doubt of the 
 TKirtv's iruilt. 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 perfectly reconcilable with the sup- 
 position of his guilt. Pei)j)Ie vs. PddlUld, 42 Cal., 535. 
 
 The court instructs the jury, that it is an invariable rule of 
 law, that to warrant a conviction for a criminal offense upon cir- 
 cumstantial evidence alone, such a state of facts and circum- 
 stances must be shown as that they are all consistent with the 
 guilt of the party charged, and sucli tliat they cannot, ujton any 
 reasonable theory, be true and the party charged be innocent.
 
 IN CRIMINAL CASES. 477 
 
 One Fact Inconsistent with Guilt. — The jury are instructed, that 
 where the prosecution relies upon circumstantial evidence alone 
 for a conviction, the jury must be satisfied, beyond a reasonable 
 doubt, that the crime has been committed by some one, in man- 
 ner and form as charged in the indictment; and then tliey must 
 not only be satisfied that all the circumstances proved are con- 
 sistent with the defendants 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 reasonable 
 doubt, and the jury should acquit the defendant. 
 
 That 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 accused 
 upon any rational theory, and incapable of explanation upon any 
 other reasonable hypothesis than that of his guilt. 
 
 Direct Evidence not Required. — The court further instructs the 
 jury, that, while they must be convinced of the guilt of the de- 
 fendant, beyond a reasonable doubt, from the evidence, in order 
 to warrant a conviction, still, the proof need not be the direct 
 evidence of persons who saw the offense committed; the acts 
 constituting the crime may be proved by circumstances. 
 
 Admission in Criminal Cases— Must be all Taken Together. — Where 
 the verbal admission of a person, charged M'ith 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 the part of the statement which is 
 in favor of the defendant is not disproved, and is not, apparently, 
 improbable or untrue, when considered with all the other evi- 
 dence 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 where evidence is given tending 
 to show admissions made by the defendant in a criminal case, the
 
 478 INSTRUCTIONS 
 
 defendant i> entitled to liave tlie whole of the statement, or ad- 
 mission, lieartl and considered hy the jury. Jhit tlu^ jury are 
 not obliired 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 jui-y believe, from the facts 
 and circumstances proved on the trial, are untrue. Conner vs. 
 State, 34 Texas, G59; Roscoe's Crim. Kv., 55. 
 
 Confessions Must be Treated Like Oilier Evidence. — If the jury be- 
 lieve 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 su(di confession precisely as they would 
 any other testimony; and hence, if the jury believe the whole 
 confession to be true they should act upon the whole as true. 
 But the jury may believe part of the testimony and reject the 
 T)alance if they see sufficient grounds, in the evidence, for so do- 
 in<i'; 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. Jackson vs. The People, IS 111., 269. 
 
 Confession to be Received with Caution. — The court instructs the 
 jurv, that the confessions of a pi-isoner out of court are a doubt- 
 ful species of evidence, and should be acted upon by the jury 
 with o-reat caution, and, unless thev are supiiorted bv some other 
 evidence tending to show that the prisoner committed the crime, 
 they are rarely suthcient to wai-rant a convic^tion. 
 
 Confession T\nien 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 confes- 
 sions are; if the crime, itself, as charged, is proved by other tes- 
 timony, and it is also proved that the defendant w\as so situated 
 that he had an opportunity to commit the crime, and his confes- 
 sions are consistent with such pr(K)f and corroborative of it, and 
 the witness who swears to the confession is, apparently, truthful, 
 honest and intelligent, then, confessions so made may l)e entitled 
 to great weight with the jury. 
 
 If the jury believe, from the evidence, that the confessions, 
 or admissions, testified to by the witness, A. B., as having been
 
 IN CRIMINAL CASES. 479 
 
 made to him by the defendant, were so made, and that they 
 were the spontaneous and vohintary act of the defendant, and, 
 if the jury further believe, that such confessions have been cor- 
 roborated by satisfactory proof that the {^jpropertij was stolen)^ 
 and that the defendant was so situated that he had an oppor- 
 tunity to commit the crime, then, such confessions and admis- 
 sions may be entitled to great weight in the minds of the jury; 
 and if the juiy believe, from all the evidence, beyond a reason- 
 able doubt, that the defendant is guilty, then, they should so 
 find by their verdict. 
 
 If the jury believe, from the evidence, that either of the de- 
 fendants, freely and voluntarily, without fear, or hope of reward 
 or immunity, has confessed or admitted that he committed the 
 crime in manner as charged in the indictment, and if the jury 
 further believe, from the evidence, bej'ond a reasonable doubt, 
 that such crime was committed, and, also, that there are strong 
 corroborating circumstances tending to show that such defend- 
 ant did commit the crime, then the jury would be warranted in 
 finding such defendant guilty; provided, the jury believe, from 
 the evidence, beyond a reasonable doubt, that such defendant is 
 guilty. 
 
 The jury are instructed, that in criminal prosecutions, tXic ad- 
 missions of the prisoners are received, in evidence, upon the 
 same principle that admissions in civil suits are received, tliat is, 
 the presumption that a prisoner will not, voluntarily, make an 
 untrue statement against his own interest. 
 
 When Sufficient to Comiet. — If, in any case, a conviction is re- 
 lied upon, on the ground of admissions, unsupported by other 
 evidence, such admissions or confessions should be clear and un- 
 equivocal, and such as to convince the jury, beyond a reason- 
 able 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.
 
 480 INSTRUCTIONS 
 
 Testimony of Accomplice. — Tliut tlie witness, A. B., is what is 
 known in law as an ucconiplicc; antl, tliat while it is a rule of 
 law that a person accused of crime may he convicted upon tlie 
 nncorrohorated 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 tliey are satisfied, beyond any reasonable doubt, of its 
 truth, and that they can safely rely upon it. 
 
 The court instructs the jury, that the witness, A. B., is what is 
 known, in law, as an accomplice, and while the law is, that a 
 jury may convict upon the uncorroborated testimony of such a 
 witness, still, the jury ought to receive such testimony with great 
 caution, and scrutini/.e the same with great care. 
 
 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 held 
 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 in- 
 fluence of such promise or hope. 
 
 Fabrication of Testimony. — The jury are instructed, that if they 
 l)elieve, from the evidence, that the ac('us(>d believed that the 
 circumstances surrounding him wore calculat(Ml to awaken sus- 
 picion against him, and that he was ignorant of the nature and 
 course of criminal proceedings, and, under such belief was in- 
 duced, by his friends, to fabricate testimony, then, the jui-y may 
 take these facts into consideration in considering the conduct of 
 the defcTKhint in relation to fabricating such testimony, and in 
 determining his guilt or innocence. Voe vs. The J-'eojylc, 4i> 
 111., 410. 
 
 Contradictory and Inconsistent Sfalements. — If the jury find, from 
 the evidence, that the accused, at or about the time of his 
 arrest, made false and contradictory statements, calcidateil to
 
 IN OKI M IN A L CASES. 4S1 
 
 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 indict- 
 ment, and a desire to conceal it, then they should be so attrib- 
 uted and explained, and in such case they should not be regarded 
 as any evidence of guilt of the crime charged. 
 
 One Witness Sufficient (Except in Treason or Perjury). — The court 
 instructs the jury, that the evidence of one credible witness 
 swearing, directly, to any material fact in this case, if uncon- 
 tradicted by other evidence, or by facts and circumstances proven, 
 is sufficient proof of that fact for the purposes of this trial. 
 
 The Precise Crime Clmrged Must be Proved. — The jury are fur- 
 ther instructed, that if the evidence leaves a reasonable doubt in 
 the mind of the jury whether the defendant is guilty of the 
 jjrecise crime with which he is charged in the indictment, then 
 the jury should find the defendant not guilty, although the evi- 
 dence may show conduct of no less turpitude than the crime 
 charged, that is not enough to authorize a conviction in this trial. 
 Stuart vs. T/>e People, 73 111., 20. 
 
 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 prosecuting attorney that, 
 etc., as entitled to any weight whatever in this case. And this 
 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. Ken- 
 nedy vs. The People, 40 111., 488. 
 
 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 discharged when you have determined his guilt or inno- 
 cence of the charge contained in this indictment, and there is no 
 other question involved in the case. 
 
 Reasonable Doubt Defined. — The jnry are instructed, that the 
 reasonable doubt which entitles an accused to acquittal is a 
 
 31
 
 482 INSTRUCTIONS 
 
 doubt of ^^uilr rea>()iial>ly arising- from all the evidence in the 
 case. The proof is to be deemed to l)e beyond reasonable doubt 
 Avhen the evidence is sufficient to impress the judgment of 
 ordinarily prudent men with a convicti(m on which they would 
 act, witliout hesitation, in their own most important concerns 
 or affairs of life. 3 Greeidf. on Ev., § 29; Com. vs. V/ehster\ 5 
 Cush., 820. 
 
 The court instructs the jury, that in a legal sense a reasonable 
 doubt is a doubr which has some reason fur its ]»asis; it does not 
 mean a doubt from mere caprice or groundless conjecture; 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 tlu^ j'l^T? that a reasonable doubt, within 
 the meaning of the law, is such a doubt as would cause a reason- 
 able, 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 tlic^ iurv, that in considering this case vou 
 '^ should not g-o bevond the evidence to hunt for <loubts, nor 
 should you entertain such doubts as are merely chimerical or 
 based npon groundless conjecture. A doubt, to justify an 
 ac(piittal, 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, ])rudent, and 
 considerate man to hesitate and pause beforeacting in the graver 
 and more important affairs of life. If, after a careful and im- 
 partial consideration of all the evidence in the case, you can say 
 and feel that you have an abiding conviction of the guilt of the 
 defendant, and are fully satisfied of the truth of the charge, then 
 you are satisfied beyond a reasonal)le doubt. Miller vs. 77/ 
 People,Z':i\\\.,^~>1^. 
 
 The jury are instructed, that by the words reasonaljlc doubt is 
 meant actual, sul)stantial doubt; it is that state of the case which, 
 after a com])arison and consideration ot" all the evidence, leaves 
 the minds of the jurors in that condition that they carmot say 
 they feel an ai»iding conviction of the guilt of the defendant, 
 and are fully satisfied of the truth of the charge.
 
 IN CRIMINAL CASES. 483 
 
 That while it is necessary for the prosecution to prove every 
 material allegation in the indictment beyond a reasonable doubt, 
 yet if the proof is of that nature that it would control and decide 
 the conduct of reasonable and cautious men in the highest and 
 most important affairs of life, then, as a matter of law, facts 
 established by such evidence are deemed to be established beyond 
 a reasonable doubt, and the jury in a criminal case, with that 
 kind and degree of proof before them, as to every material 
 allegation in the indictment, should convict. 
 
 Rule does not Extend to Each Link in the Cliain, Etc. — The rule 
 requiring the jury to be satisfied of the defendant's guilt beyond 
 a reasonable doubt, in order to warrant a conviction, does not 
 require that the jury should be satisfied beyond reasonable doubt 
 of each link in the chain of circumstances relied upon to estab- 
 lish the defendant's guilt; it is sufiicient, if taking the testimony 
 altogether, tlie juiy are satisfied, beyond a reasonable doubt, 
 that the defendant is guilty. Ilouser vs. State^ 58 Ga., 78; 
 Jarrell vs. State, 58 Ind., 293; State vs. Ilayden, 45 la., 11. 
 
 ACCESSORY— AIDERS, ABETTORS, ETC. 
 
 Note.— At common law, persons participating? in a crime are either prin- 
 cipals or accessories. If the crime is felony, they are aliiie felons. Prin- 
 cipals 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 command 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. 
 
 Accessory Defined — The court instructs the jury, that an acces- 
 sory is one who stands by and aids, abets, or assists, or who, not 
 being present aiding, abetting, or assisting, hath advised, encour- 
 aged, aided or abetted the perpetration of the crime charged. 
 He who thus aids, abets, assists, advises, or encourages, is con- 
 sidered a principal and punished accordingly.
 
 4:84: INST It UCT IONS 
 
 If the jurv believe, from the evidence, beyond a rea^Joiiable 
 doubt, that the defendant deliberately and intentionally shot 
 * * * * with a loaded revolver, as charged in the indict- 
 ment, and that the defendant, A. 13., in any way or manner 
 aided, advised, or encouraged such shooting, then the jury should 
 rintl the defendants both guilty; i)r()vided, the jury further find, 
 from the evidence, beyond a reasonable doubt, that such shooting 
 was not necessary, and did not reasonably ai)i)ear to be necessai-y 
 to save their own lives, or to prevent them, or either of them, 
 receiving great bodily harm. Smith vs. The People, 74 111., 144. 
 
 Aiding, Advisin^^, Etc., May Be by Words or Acts. — The court in- 
 structs the jury, that the advising or encouraging that may make 
 one an accessory to crime need not be by words. It may be by 
 words or acts, signs or motions, done or made for the purpose of 
 encouraging the commission of the crime. Brennan vs. The 
 People, 15 111., 511. 
 
 Concert of Action Need not be by Express A^eement. — The jury are 
 
 instructed, that while the law requires, in order to find all the 
 defendants gnilty, that the evidence should prove, beyond a 
 reasonable doubt, that they all acted in concert in the (;ominis- 
 sion 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 proved by circum- 
 stances; and if, fi-om all the evidence, the juiy are satisfied, 
 ])eyond a reasonable doul)t, that the crime was committed 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. Miller vs. T/ie 
 People, 39 111., 457. 
 
 Aiding: or Abetthig Assault. — The conrt instructs the jury, that 
 the rule of law is that, as to each of the defendants, in order to 
 warrant a vcrdl(;t of guilty as to him, it must appear, from the 
 evidence, that an assault was committed in maimer and form as 
 chai'ired in the indictment, and that he was present, taking part 
 in the assault, or was aiding and abctllng in the same, or that 
 he had advised or encouraged the connnissiou thereof.
 
 IN CRIMINAL CASES. 485 
 
 And in passing upon the guilt or innocence of each one of 
 the defendants, if the evidence fails to establish, beyond a 
 reasonable doubt, tliat 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 the 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 defendants 
 now on trial, with the intent only to commit an assault and bat- 
 tery, and not to murder the said A. B., joined in the attempted 
 assault, and com])ined witli those who did so intend to murder, 
 to assault and beat the said A. B., tlien 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 murder, in manner and 
 form as charged in the indictment. 
 
 Aiding' or xVbettinj,' Murder. — The court further instructs the jury, 
 that if they believe, from the evidence, beyond a reasonable 
 doubt, that the said A. B. was unlawfully killed, with malice 
 aforethought, in manner and form as chai-o-ed in the indictment, 
 and that the defendant, C. D., was present, and in any maimer 
 aided, abetted, or assisted in such killing, or advised or encour- 
 aged the same, then the jury should iind 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 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, assisted or abetted 
 such killing, then the jury should find him guilty, though there 
 was no human eye witnessed the fact of such killing. 
 
 Advising and Enconraginsr, Not Being' Present. — The court instructs 
 the jury, that if they believe, from the evidence, beyond a rea- 
 sonable doubt, that any one or more of the defendants is guilty
 
 48 Jj INSTKUCTIONS 
 
 of the offence charged in the indictnient, and tluit 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 pres- 
 ent, liad advised or encouraged the commission of the same, 
 then such other persons so aiding, abetting, advising or encour- 
 aging, are, in law, guilty as principals, and the jury should so 
 find by their verdict. 
 
 Aiding and Abetthig in Biirglary. — If the jury believe, from the 
 evidence, beyond a reasonable doubt, that a burglary was com- 
 mitted, as charged, and that tlie 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 hud him guihy in 
 manner and form as charged in the indictment. 
 
 Present, but Not Aiding or Assisting. — Though the jury may be- 
 lieve, from tlie evidence, that the said A. B. was murdered at 
 the time and place in question, and that the defendant, C. D., 
 was present at the time of such murder; still, if tlie 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 hnd the 
 said C. D. not ffuiltv, thoui:;h thev further believe, from the evi- 
 dence, that he subsequently failed to disclose the killing, or even 
 concealed the same. 
 
 Any One or 3Iore May be Found Guilty. — The court insti'ucts the 
 jury, that if, from a considei-ation of all the facts and circum- 
 Rtances detailed in evidence, the juiy believe, from the evidence, 
 beyond a reasonable doubt, that the defendants, or any one or 
 more of them, ai-e guilty of the crime charged in the imlict- 
 ment, 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.
 
 IN CRIMINAL CASES. 
 
 487 
 
 ASSAULT WITH INTENT TO COMMIT MURDER. 
 
 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. 
 
 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 proved in 
 the case must be such that if death had resulted from the shoot- 
 ing, the jury would have found the defendant guilty of wilful 
 murder. King vs. State^ 21 Ga., 220; State vs. Malconib, 8 la., 
 413; Sharp vs. State, 19 Ohio, 379. 
 
 Doubt as to Intent, Etc. — If the jury have a reasonable doubt, 
 from the evidence in the case, whether the gun was accidentally 
 or intentionally discharged, the defendant is entitled to the ben- 
 efit of such doubt, and the jury should find the defendant not 
 guilty. 
 
 Pi*esunied to Intend the Natural Conseriuences, 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 the author of such act. And if the 
 jury believe, from the evidence, beyond a reasonable doubt, that 
 the defendant did shoot the said A. B., as charged in the indict- 
 ment, and that the natural and ordinary consequences of such 
 shooting would be the death of the said A. B., then the pre- 
 sumption of law is that the defendant did shoot the said A. B. 
 with intent to kill him; and if the shooting was done with 
 malice aforethought, either expressed or implied, as explained in 
 these instructions, the jur}^ should find the defendant guilty of au 
 assault with an intent to commit murder.
 
 4S8 INSTKrCTIOXS 
 
 Reckless Shooting— Wanton Injury. — If tlic jury lielievo, from i\\a 
 ovideiiee, bevond a reasonable {]oul)t,tbat tbe defeiulant jxiiiitcil 
 the i;uu at the said A. B., and disc-handed the same, cither with 
 maliee aforethoiiii^lit, or with a reckless and total disrepird of 
 human life, and that the use of the said weapon, as used b>- the 
 said defendant, was likely to kill the said A, B., then the said 
 defendant is guilty of an assault with an intent to connnit nnirder. 
 
 Facts Showuisr Deliberation. — That to reduce an unlawful killing 
 of a human being from the crime of murder to that of man- 
 slauirhter, on the irround rhat it was not done with malice afore- 
 thought, it must appear, from the evidence, that the act was done 
 under such a sudden impulse of passion as was apparently irre 
 sistible, provoked by a serious and highly provoking injury ui)on 
 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 reason- 
 able doubt, that the defendant, after the {alleyed j)f'ovocation) 
 
 was given, deliberately went to the house, some distant, and 
 
 got his gun, and returned with it, and shot the said A. B., as 
 charged in the indictment, then 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 conse- 
 (piences 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 nnn-der. 
 
 Intent may be Proved by Circnmstances. — That to constitute the of- 
 fense charged in this case, the intent alleged in the indictment 
 is necessary 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 existence. lioberts vs. The 
 People, 19 Mich., 401. 
 
 Intent Must Ai)j)ear. — Before the jury can find the defendant 
 guiltv of an assault with intent to connnit murder, the jury must 
 believe, from the evidence, beyond a reasonable doubt, that the 
 defendant shot the said A. B. under such circumstances as muni-
 
 IN CRIMINAL CASES. 489 
 
 fest a deliberate intention unlawfully to take away the life of 
 said A. B. ; or else, under circumstances showing that no consid- 
 erable provocation for the assault existed, or where all the cir- 
 cumstances of the transaction show an abandoned and malignant 
 heart on the part of the defendant at the time. 
 
 Before the jury can convict, under the indictment in this case, 
 they must be satisfied, from the evidence, beyond a reasonable 
 doubt, that the defendant intended to murder the prosecuting 
 witness — that he had this intent at the time of the firing, and 
 that he fired the shot without any reasonable apprehension of re- 
 ceiving 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 malignant heart. 2 
 Bish. on Crim. Law., § 759. 
 
 Intention to Kill Must Exist. — The jury are instructed, that in 
 order to convict the defendant of an assault with intent to mur- 
 der 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 deliber- 
 ately formed intention, he attemj^tted to carry such intention into 
 effect, and was only prevented from so doing by some interposi- 
 tion not of his own will ; or else, under circumstances showing 
 that there was no considei-able pi-ovocation for the attack on the 
 said A. B. ; or where all the circumstances show an abandoned and 
 malifrnant heart. And this must be established bevond a reason- 
 able doubt, and if the prosecution have failed so to prove these 
 matters, then the jury must acquit the defendant of the offense 
 of an assault with an intent to commit murder. 2 AYliar. on 
 Crim. Law, G. 1279; 1 Bish. on Crim. Law, § 492. 
 
 That the charfje in this indictment is an assault witli an intent 
 to commit murder, and in order to warrant a conviction for this 
 offense, the jury must be satisfied, from the evidence, bej'ond a 
 reasonable doubt, that before, or at the time, the blow was struck 
 the defendant had, with malice aforethought, formed the design 
 to kill the prosecuting witness, A. B., and, that in furtherance of 
 this malicious design, the blow was struck; or else, that there 
 was no considerable provocation for the blow, or that all the cir- 
 cumstances shoM' an abandoned and malignant heart on the part 
 of defendant.
 
 490 INSTRUCTIONS 
 
 The jiirv arc instructed, that the intent being one of the prin- 
 cipal elements of the crime charg-eJ against the defendant, it is 
 necessary for the people to prove, beyond a reasonable doubt, 
 that the assault was made upon the said A. B. with malice afore- 
 thought, or with the intention previously formed to kill him; and, 
 if the jury entertain a reasonable doubt of the existence of 
 such intent, then they must ac<|nit the defendant of the offense 
 of an assault with the intent to connnit nnirder. 
 
 The court instructs the jury, that under an indictment for an 
 asssault with intent to kill aiul murder, or for an assault with a 
 deadly weapon with an intent to intiict, on the person of another, 
 a bodily injury, where no considerable provocation appears, or 
 when the circumstances of the assault show an abandoned and 
 malignant heart, the intent is the gist of the offense, and must 
 be specifically made to appear by the evidence; and, in this case, 
 if the evidence fails to prove an intent, on the part of the de- 
 fendant, to commit the crime charged in the indictment, or else 
 to commit an assault with a deadly weapon with an intent to in- 
 lliet, upon the said A. B.,a bodily injury, where no considerable 
 prov(,)eation appeared, or where the circumstances of the assault 
 showed an abandoned or malignant heart, the jury should find 
 the defendant not guilty of the crime charged in the indictment. 
 
 lilowin Heat of Passion Without Intention to Kill. — If the jury be- 
 lieve, 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 M'ithout 
 any intention to kill, then the offense would not amount to an 
 assault with an intent to murder. 
 
 Incapable of Forming Intent from Drunkenness. — The court instructs 
 the jury, that, in this case, in order to M'arrant 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. l)iit it must als(j appeal', i'l'om the evi- 
 dence, that, at the time he made the assault, he had formed in 
 his own mind a delil)erat(! intention to take the life of the said 
 A. B. ; and, if the jury furtiier believe, from tiu' evidence, that 
 at the time of the alleged assault, the defendant was so deeply
 
 IN CRIMINAL CASES. 
 
 491 
 
 intoxicated or besotted with drink that he was incapabk of en- 
 tertaining or forming any positive intent to kill the said A. B., 
 then the jury should acquit the defendant of the crime of an as. 
 sault with intent to commit murder. Mooiiey vs. TJie State, 33 
 Ala., 419; State vs. Garveij, 11 Minn., 154; Pigman vs. State, 
 14 Ohio, 555; 1 Bishop, Grim. Law, § 492. 
 
 Must be Proved Beyond a Reasonable I>onl)t. — The jury are in. 
 structed, that if they believe, from the evidence in the case, that 
 there . is a reasonable doubt as to whether the prisoner, at the 
 time of the shooting, was under reasonable apprehension that the 
 prosecuting witness intended to inflict upon him great bodily 
 harm, and that he fired the shot in self-defense, then the jury 
 must acquit. Lawlor vs. The People, 74 111., 230. 
 
 Every Material Allegation Must be Proved. — That the people are 
 bound to prove every material allegation of the indictment be- 
 yond a reasonable doubt, and if the jury entertain a reasonable 
 doubt of any one of the elements necessary to constitute the 
 crime of an assault with an intent to murder, they must acquit 
 the defendant of that crime. 
 
 The court instructs the jury, that if they believe, from the evi- 
 dence, beyond a reasonable doubt, that the defendant committed 
 an assault upon the said A. B., in manner and form as charged 
 in the indictment, then the jury should hud the defendant guilty. 
 
 Terdict 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 in- 
 tent to commit a bodily injury, when no considerable provoca- 
 tion appears, or when the circumstances of the assault show an 
 abandoned and malignant heart, and, if after a full and care- 
 ful consideration of all the evidence, the jury have a reasonable 
 doubt, whether the defendant is guilty of an assault, with an in- 
 tent to kill, but do believe, from the evidence, beyond a reason- 
 able doubt, that defendant is guilty of an assault, with a deadly 
 weapon, and with intent to do great bodily injury upon the per- 
 son of the said A. B., where no considerable provocation appears, 
 or under circumstances which show an abandoned and malig- 
 nant heart, then the jury should so find by their verdict.
 
 492 INSTRUCTIONS 
 
 ASSAULT WITH A DEADLY WEAPON WITH INTENT, ETC. 
 
 Assault with a Knife Cliar^ed. — If the jury believe, from the evi- 
 dence in this case, that the defenchmt made an assanlt npon the 
 Baid A. B., with any sharp, (U'adly weapcni, capable of protbu^- 
 in'>- a dangerous cutting woiiiul, in mauner and iorni as charged 
 in the indictment, then tlie jury shuuhl lind the defendant 
 ji-uiltv. 
 
 Proof of Instrument of tlic Same Kind Sufficient. — It is innnaterial, 
 in this case, whether the alleged injury was inllicted witli 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 in- 
 tlictinir a dangerous cuttini>; wound, and of doing great bodilv 
 injury, with intent to iullid u[)(>n the person of the said A. U. 
 a bodily injury without any considerable pi-ovocation therefor, 
 or under circumstances showing a malignant heart, in manner 
 and form as charged in the iudictinont, for in such case the 
 jury should find the defendant guilty. Roscoe's Grim. Ev., 705 ; 
 2 Whar. on Crim. Law, § 1059. 
 
 If the jurv believe, from the evidence, beyond a reasonable 
 doubt, that the defendant did make an assault u])(>ii the said 
 A. B., with a deadly weapon, in manner and form as charged in 
 the indictment, and that there was no considerable provocation 
 given for such assault, or that the cii-cumstances 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. 
 
 What Sufflcient to Prove. — That all that is necessary for the peo- 
 ple to prove in this case, in order to warrant a conviction, is 
 enough to satisfy the jury, Irdiii the c\idcnce, beyond a reason- 
 able doubt, that the defendant within years before the 
 
 finding of this indictment, within the county of, etc., made an 
 assault upon the person of the said A. B., with a revolver, 
 loaded witli powder and ball; that the same was then and there
 
 IN CRIMINAL CASES. 493 
 
 a deadly weapon, and that such assault was made with intent to 
 iutliet, upon the person of the said A. B., a bodily injury when 
 no considerable provocation appeared, or when the circumstances 
 of the assault show an abandoned and malignant heart on the 
 part of the defendant at the time. 
 
 What Necessary 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 reasonable doubt. 
 Amons: the material allegations in this indictment are: Ist, 
 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 bod- 
 ily injury. 4th, That there was no considerable provocation foi- 
 the assault, or that it was made under circumstances showing an 
 abandoned or malignant heart. 
 
 If the evidence fails to establish either one of these essen- 
 tial elements of the offense charged, beyond a reasonable doubt, 
 then it will be the duty of the jury to acquit the defendant. 
 
 Intent Must l)e Proved. — In this case it is incumbent upon the 
 prosecution to j^rove not only that an assault was made, as charged 
 in the indictment, but also that the assault was made with the 
 intent therein charged. 
 
 No Crime Without Intent. — A criminal intent, as explained 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. Misadventure, or accident, when 
 the circumstances rebut the presumption of criminal intention, 
 and of criminal negligence, as explained 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 struggling together, the pistol in question was dis- 
 charged, accidentally, then the jury should find the defendant not 
 guilty.
 
 404 INPTRUCTIOXa 
 
 Til this ease, if the proseeiitioii has failed to estahlish, l)eyoii(l 
 a reasonable doubt, that the defendant intended to use. and did 
 use the pistol in question, at the time of the diffieulty, for the 
 purpose of intiicting an injury upon the said A. B., in manner 
 and form as eharired in the indictment, or with an intent to do 
 him a bodilv injury, the jury should ac(jiiit the defendant. 
 
 Presumption of Intent may be Rebutted, — The court instructs 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 sui-i-oundings 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 negligence, as explaine<l 
 in these instructions, but was the result of accident or misad- 
 venture, then the jury should find the defendant not guilty. 
 
 Innocence Presumed. — The court instructs the juiy, that the law 
 presumes the defendant in this case to be an honest man, and 
 innocent of the crime charged in the indictment; and this legal 
 presumption of innocence continues up to the very moment that 
 the evidence proves to the contrary, beyond the existence of a 
 reasonable doubt. And in this case, if the jury have any reason- 
 able doubt of the truth of any fact, material for the prosecution 
 to prove in order to overcome this legal presumption, then you 
 must give the defendant the benefit of this doubt, and acquit 
 him. 
 
 A Deadly Weapon Defined. — The court instructs the jury, that liy 
 the woixls " a deadly weapon," the law means any weapon which 
 is likely, from the use made of it at the time, to pi-oduce death 
 or do great bodily harm. 2 Whar. on Crim. Law,§ 944; 1 Bish. 
 on Crim. Law, § 3o5,
 
 IN CRIMINAL CASES. 495 
 
 BURGLARY.- 
 
 What Constitutes Burglary. — If the jury believe, from tlie evi- 
 dence, beyond a reasonable doubt, that the defendants, or either 
 of them, wilfully, maliciously, feloniously, and forcibly, did 
 break 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 
 of the said A. B., then and there in the said dwelling-house 
 being, feloniously and burglariously to steal, take and carry away, 
 then the j ury should find the defendants, or such of them as you 
 so find to have broken and entered such dwelling-house, guilty of 
 the crime of burglary. 
 
 If the jury believe, from the evidence, that the defendant 
 broke and entered the dwelling-house of A, B. (in the night time), 
 at and within this county, in manner and form as charged in the 
 indictment, with intent to steal the goods and chattels of the said 
 A. B., then and there being in said house, as charged in the 
 indictment, then the jury should find the defendant guilty. 
 
 If the jury believe, from the evidence, that the defendant 
 broke and entered the dwelling-house of the said A. B., witli a 
 felonious intent, in manner and form as charged in the indict- 
 ment, either by entering through an open window or door, or by 
 raising a window or opening a door, such entering of the house 
 constitutes the crime of burglary. 
 
 Prima Facie Case. — 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, con- 
 sistently with innocence, will justify the jury in presuming that 
 such entry was made with a felonious intent, in manner and 
 form as charged in the indictment. 
 
 Intent Must Appear. — The jury are instructed, that in order to 
 convict the defendant of the crime of burglary, as charged in 
 the indictment, the prosecution must prove to the satisfaction of
 
 4i)G INSTliUOTIONS 
 
 t!ie jnry, ami to the exclusion of every reas()iial)le tlouUt, not 
 only that the defen<lant wilfully, forcihly, maliciously and hnr- 
 i;-lai-iously broke and entered the liouse of the said .V. J>., hut 
 also that he broke and entered said house with the intent and for 
 the purpose of stealing the goods and chattels of the said A. !»., 
 then and there being in said house; and if the pi-osccution has 
 failed to prove either of these essential elements of tlu; ci-ime, as 
 charged in the indictment, lieyond a reasonable d<jul)t, then the 
 jury should acquit the defendant. 
 
 Though the jury shall be satisfied, from the evidence that the 
 defendant Ijroke and entered the house of the said A. 1>., as 
 chai'ged in the indictment, still, if the jury entertain any reason- 
 able doubt as to whether or not he entered the house with.intent 
 to steal the goods and chattels of the said A. !>., then the jury 
 should arive the defendant the benefit of the doubt, and iind him 
 not guilty. 
 
 What Constitutes a BresikiniB:. — The court instructs the jury, that 
 while it is necessary, in order to constitute the crime of bui-glai-y, 
 that there should be a breaking and an entry of the l)uilding 
 described in the indictment, with the intent therein charged, yet 
 to constitute a l)reaking ii;to the l)uilding it is not necessaiw that 
 any injury should be done to the building, its doors or windows; 
 such breaking may be actual or constructive. An actual break- 
 ing may be by lifting a latch and opening a dooi-, 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 remove<l, is a breaking within the meaning of 
 the law. 
 
 A constructive bi'eaking is committed when admission is 
 obtained by threats, or by fraud, or false pretences. 
 
 What Constitutes an Entry. — And to constitute an entry within 
 the meaning of the law it is not necessary that the whole body 
 should be introduced into the building. It is sufHcient if the 
 liand, or even a linger, or any instrument held in the hand is 
 introduced into the building for the purpose and with the intent 
 charged in tlip infli(!tment. Third (ireenlf. Evi., § T6-77; lics- 
 goe's Crim. Evi., 341-040; 1 Bishop, Crim. Law, § 327.
 
 IN CRIMINAL CASES. 407 
 
 May be Found triiilty of Larceny. — The jury are iiisti'U(;ted, that 
 under an indictment for burglary the accnsed may be found 
 guilty of a larceny, and in this case, if the jury are not satisfied, 
 from the evidence, that the defendant committed the l)urglarv, 
 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 indictment, from the possession 
 of the said A. B., then the jury may, under this indictment, find 
 the defendant guilty of larceny. 
 
 [See Larceny.] 
 
 PROOF OF IDENTITY. 
 
 Pi'oof of Identity. — The court further instructs the jury, that to 
 justify a conviction of the defendants, their identity as tlie 
 guilty persons must be proved, beyond every reasonable doubt, 
 and the jury are not bound to believe that the witness was able 
 to identify the prisoners with certainty because he swears posi- 
 tively to their identity; and the jury should not so believe, if 
 they themselves are satisfied, from the circumstances proved, 
 that there is a reasonable doubt as to whether the witness was 
 able to and did identify the defendants, 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, inmi the evidence, 
 and the circumstances proved, that there is reas()nal)le donl)t 
 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 tending to establish their identity 
 must be such as, with other testimony, produces a degree of 
 certainty in the mind of the jury, so great that they can say and 
 feel that they have no reasonable doubt as to the identity of the 
 defendants. 
 
 Doubt Jis to Defendant or Somebody Else. — In determining tlio 
 question as to whether the 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 
 
 32
 
 498 ixsTR rcTioNs 
 
 fact, if proven in the case, that a few niinntes before tlic com- 
 mission of the burghiry, the said {three) unknown men wei-e near 
 tlie ]tlace where tlie crime was committed; and also consider 
 whether they did not, then and there, have the same o[)[»(>rtunity 
 to conunit sucli crime as tlie defendants did. 
 
 The court instructs the jur\\ that before they can convict the 
 defendant in this case, it must appear, from the evidence, beyond 
 a reasonable doubt, that the defendant, and not somebody else, 
 committed the offense charged in the indictment. It is not suffi- 
 cient that the evidence shows that the defendant or somebody 
 else committed the crime, nor that the probabilities are that the 
 defendant and not somebody else connnitted the crime, unless 
 those probabilities are so strong as to remove all reasonable 
 doubt as to whether the defendant or some one else is the sruiltv 
 party. Lyons vs. The People^ 'o^ 111., 271. 
 
 If the jury believe, from the evidence, that the {three) men 
 testiiied about by the witnesses, A. and B., were other and dif- 
 ferent men than the defendants, and if the jury further believe, 
 from the evidence, that the evidence points as strongly to the 
 conclusion of their guilt as to that of the defendants, then the 
 jury should find the defendants not guilty. 
 
 If, froui 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 ques- 
 tion of guilt or {"nnocence of each defendant; that is to say, that 
 if the evidence leaves the jurors in reas()iud>le doubt as to anv 
 one defendant, such defendant should be ac<piitted. 
 
 The jury are instructed, that it is a rule of law that althou<i:h 
 it may be positively proved that one of two or more persons 
 committed a ci-ime, yet if there is any reasonable doubt as to 
 which is the guilty party, all must be ac(piitted. Camphdl vs. 
 The People, 16 111., 1. 
 
 \See Murder. \ 
 
 Proof by Coiiiparison of Tracks. — Tlie jury are further instructed 
 that while it is competent for the peojile, as one means of i«lcM- 
 tification of the prisoners, to prove that the foot marks made bv 
 the burglars correspond with the boots or shoes worn bv defend-
 
 IN CKIMINAL CASES. 499 
 
 ants, still it is exceedingly important, in order to guard against 
 mistake, that the greatest accuracy in the comparison should be 
 secured and proved upon the trial. 
 
 That proof simply that boots or shoes put into or upon a ti-ack 
 fit the track, is not conclusive evidence that such boots or shoes 
 made such track. 
 
 That in passing upon the weight of evidence as to comparison 
 of boots and tracks, the jury should consider all the evidence as 
 to the circumstances and mode under which a comparison has 
 been made; and unless it appears that such comparison was 
 made in such way as to establish, beyond reasonable doubt, that 
 the boots or shoes did make the track, then evidence as to such 
 comparison, if unsupported by other evidence connecting the 
 prisoners therewith, would be entitled to but little weight. 
 
 ALIBI. 
 
 Proof of an Alibi. — One of the defenses interposed by the de- 
 fendants, in this case, is what is known, in law, as an alibi, 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 l)e 
 carefully considered by the jury; and if in view of all the evi- 
 dence, the jury have any reasonable doubt as to whether the 
 defendants were in some other place when the crime was com- 
 mitted, they should give the defendants the benefit of the doubt, 
 and find them not guilty. 
 
 Alibi Need not be Proved Beyond a Reasonable Doubt. — As regards 
 the defense of an alibi, the jury are instructed, that the defend- 
 ant is not required to prove that defense bej'ond a reasonable 
 doubt to entitle him to an acquittal; it is sufficient if the evi- 
 dence upon that point raises a reasonable doubt of his presence 
 at the time and place of the commission of the crime charged. 
 State vs. Harden, 46 la., 623; State vs. Jaynes, 78 N. C, 504; 
 Howard vs. The State, 50 Ind., 190. 
 
 The court further instructs the jury, that if they believe, from 
 the evidence, that on the night of the alleged bui-glary, and at
 
 500 INSTRUCT ION'S 
 
 the hour tliat tlie crime was committed, the defeiidants, H. and 
 R., Averi" at the residence of the said II., as testitied to by some 
 of the (U'fcii(huits' witnesses, and were not pi'cscnt at the scene 
 of such hnrghiry at the time of its commission, tlien you must 
 ac(piit those defendants, unless it has been proved, l)eyond a 
 reasonable doul)t, that they, in some mannci-, aided, assistecl, 
 advised or encouraged the commission of said ciame before it 
 was committed. 
 
 That if you entertain any reasonable doubt as to whether or 
 not the defendants, II. and U., were at II. 's residence or at the 
 scene of the burglary, at the time it was committed, then it is 
 your sworn duty, nnder the law, to give the benefit of such 
 doubt to those defendants, aiul acquit them, uidess, etc. 
 
 If the jury believe, from the evidence, that the defendant, 
 \V., on the night and at the hour of the commission of the 
 alleged burglary, was at his own home, and not present at the 
 place of the said bui-ghiry, then you should tind the said W. not 
 guilty, unless you are satisfied, from the evidence, beyond a 
 reasonable doubt, that he aided, etc. 
 
 The jury are instructed, as a nuitter of law, that if tiiey en- 
 tertain any reascmable doubt, after a careful aiul candid consid- 
 eration of all the evidence in the case, whether the said W. was 
 present at the connnisslon of the said crime or at his own home, 
 with his wife and family, then it is a rule of law, inllexible in 
 its ojjeration, that the jury must give the benefit of tiie doubt to 
 the prisoner, and render a verdict of accpiittal as to him, unless, 
 etc. {as ahove), 
 
 PROOF OF GOOD CnARACTER, 
 
 Good Character Presumed. — The court instructs the jury, that the 
 character of an accused person is, in law, presumed to be good 
 until the contrary appears from the evidence, and he is under no 
 obligation to prove a good character until his character is in 
 some manner attacked, aiul the jui-y will not be justified in draw- 
 ing any inference unfavorable to the defendant, from the fact 
 that he has offered lu) proof as to good character iu this case. 
 
 Former Good Character Proved. — Tf the jury believe, from the 
 evidence, that while the defendant, A., resided in the town of
 
 IN CRIMINAL CASES. 501 
 
 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 charged in this indict- 
 ment. And the said defendant was under no obligation to intro- 
 duce further proof on the point of good character, unless he saw 
 lit so to do, and his omission to introduce further testimony 
 upon that point should not be regarded by the jury as a cir- 
 cumstance against him, or as tending, in any degree, to prove 
 his guilt in this case. 
 
 Omission to Prove Good Character. — That the law not only pre- 
 sumes that every person is innocent until he is proven to be 
 guilty, but the law also presumes that a person has a good char- 
 acter and reputation for (Jionesty) until the contrary is shown by 
 the evidence; and the jury have no right to consider the omis- 
 sion on the part of the defendants, R. and H., to introduce evi- 
 dence of good character as a circumstance against them, or as 
 tending to show their guilt in this case. 1 Whai-ton on Crim. 
 Law, § 637; State vs. Tozier, 49 Me., 404; People vs. Bod'me, 
 1 Denio., 281. 
 
 Proof of (jood Character— Effect of. — Tlie jury are instructed, that 
 in all criminal trials where the prosecution depends upon cir- 
 cumstantial evidence alone, which is not conclusive in its char- 
 acter, 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 con- 
 nection 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 tliat charged in this case, evi- 
 dence of the previous good character of the defendant as to 
 such offenses should be considered by the jury, in connection 
 v^'ith all the other evidence given on the trial, in determining
 
 502 INSTRUCTIONS 
 
 whether the defendant would be likely to coimnit, and diil com- 
 mit, the offense in question. Kistler vs. State, 5-i Ind,, 400. 
 
 That in doubtful cases, evidence of good character is conclusive 
 in favor of the party accused ; and if, from the evidence, you 
 find that the facts and circMimstances pi'oved 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 defendant 
 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. 
 
 Proof of Good Character Always Proper — The court instructs the 
 jury, that evidence of previous good character is competent evi- 
 dence in favor of a party accused, as tending to show that he 
 would not be likely to connnit the crime alleged against him. 
 
 And, in this case, if the jury believe, from the evidence, that 
 prior to the connnission of the alleged crinu\ the defendant had 
 always borne a good cliaracter (for honest ij) among his aeipuiint- 
 ances and in the neighborhood where he lived, then this is a fact 
 proper to be considered by the jury, with all the other evidence 
 in the case, in determining 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 evidence in the case, inchiding 
 that bearing upon his previous good chai-actcr, the jury enter- 
 tain 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., § 25-2G; 1 Whart. Vrnn. Law, § 636, 643. 
 
 Guilt Proved Notwithstandiiif? Proof of Good Character. — If the jury 
 
 believe, from the evidence, that the defendant committed the crime 
 in question, in maimer and form as charged in the indictment, 
 it will be your sworn duty, as jm'oi's, to find tlie defendant guilty, 
 even though the evidence may satisfy your minds that the de- 
 fendant, previous to the commission of the alleged crime, had 
 sustained a good reputation and character for honesty.
 
 IN CKIillNAL CASES. 503 
 
 CONSPIRACY. 
 
 How Defined. — The court instructs the jury, 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 pur- 
 pose not, in itself, criminal or unlawful, by criminal or unlawful 
 means. State xs. Botvle//, 12 Conn., 101; Smith vs. People. 
 25 111., 17; Aldennaii vs. People, 4 Mich., 414. 
 
 How Proved — Usually by Circumstances. — That the evidence in 
 proof of a conspiracy will, in general, be circumstantial; and, al- 
 though the common design is the essence of the charge, it is not 
 necessary to prove that the defendants came together and actu- 
 ally agreed, in terms, to have that design and to pursue it by 
 common means. 3 Greenlf. Evi. § 93. 
 
 If the jury, from the acts of the parties, as proven, and 
 from all the facts and circumstances in evidence, believe, be- 
 yond a reasonable doubt, that the defendants did pursue the 
 common object of, etc., as charged in the indictment, and by the 
 same means, one performing one part, and another, another part, 
 so as to accomplish the common object, then the jury would be 
 justified in the couclusion that the defendants were engaged in a 
 conspiracy to effect that object. Koscoe's Crim. Ev., 416 ; Smith 
 vs. The People, 25 111., 1. 
 
 The jury are instructed, 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 the criminal or un- 
 lawful purp(;se 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 purjiose; the combination, or common design, or object may 
 be regarded as proved, if the jury believe, from the evidence, 
 lie^'ond a reasonable doubt, that the parties charged were actually 
 pursuing, in concert, the unlawful object stated in the indict- 
 ment, whether acting separately or together, by common or dif- 
 ferent means; providing, all were leading to the same unlawful 
 result. U. S. vs. Cole, 5 McLane, 513.
 
 504 INSTRUCTIONS 
 
 yyiui are Deemed (iiiilty. — The; jury are instructed, as a matter 
 of law. that all who take ])art in a conspiracy after it is foriueil, 
 and while it is in execution, and all who, with knowliMli^e of the 
 facts, concur in the plans oriu'inallv formed and aid in executin'r 
 them, arc fellow-conspirators. Their concurrence, without proof 
 of an ai;;i-eement to concur, is concdusive against them. They 
 • oiiinut the offense when they become partners to the transac- 
 tion, or further the original plan. People vs. Mather^ 4 Wend., 
 
 Tliough the jury may believe, from the evidence, that when 
 the parties came together upon the occasion in question, they 
 met for sonie lawful pur})ose, yet, if the jury further be- 
 lieve, 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 suffi(;ient evidence of a conspiracy to accom- 
 plish such purpose, and it is unnecessary to prove any previous 
 ])lau or understanding to that eifect by the parties. Lowcnj vs. 
 State, 30 Tex. 402; 3 Greenlf. Evi., § 93. 
 
 No Act Xecessarj. — To constitute the crime of conspiracy it is 
 not necessary that the conspirators should succeed in their de- 
 signs. Noi- is any overt act necessary to complete the crime; 
 the offense is complete when the confederacy to j)ursue the com- 
 mon purpose is made. State vs. Ripleu, 31 Me., 3SG; Alder- 
 man vs. The People, 4 Mich., 414; State vs. Pitlle, 12 Minn., 
 104; State vs. Straw, 42 N. II., 393. 
 
 If the jury believe, from the evidence, beyond a reasonable 
 <loulit. that on or about, etc., at and within this county, any two 
 or moi-e of the defendants did. unlawfully, and in concert, make 
 an attack with force and violence, upon the person of the 
 witness, A. 15., cithci'with oi- without a connnon cause of quar- 
 rel, then the jury should lind such defendants guilty. 
 
 Some Overt Aet Necessary. — (/>'.'/ Stutuii.) — The court instructs the 
 jury, that to constit utc tin; ci'ime of conspiracy, it is not necessary 
 that the conspiratoi-s should succeed in their designs; it is enough 
 ii the common design was formed, in manner and form as charged 
 in the indictment, and that any act was done in furtherance of
 
 IN CRIMINAL CASES. 505 
 
 such design by any one of the conspirators. If the conspiracy 
 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 common design, if proved, 
 will be reirarded as the act of all. State vs. Norton, 23 N. J. 
 L., 33 ; Cohi. vs. Crowninshield, 10 Pick, 497. 
 
 Combination Must be Proved. — The jury are instructed, that in 
 order to warrant a conviction in this case, the prosecution must 
 prove, beyond a reasonable doubt, that the defendants, or some 
 two of them are guilty of the crime charged in the indictment. 
 
 That to authorize a conviction in this case, it is not enough 
 for 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, advising or encouraging the 
 same, otherwise the jury should find all the defendants not guilty. 
 
 Although the 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 evidence, 
 beyond a reasonable doubt, that one of the other defendants was 
 present, aiding, abetting, advising or encouraging such striking, 
 the striking alone would not constitute a conspiracy. 
 
 Although the jury may believe, from the evidence, beyond a 
 reasonable doubt, that one of the defendants threw a stone atul 
 struck the prosecuting witness, still, that of itself, would not 
 authorize a conviction in this case. To authorize a conviction 
 for conspiracy, it should further appear, from the evidence, to 
 the exclusion of every reasonable doul)t, that one or moi-e of the 
 other defendants took part in the difficulty, or in some manner 
 aided, abetted, advised or encouraged the same, and that this was 
 done in pursuance of a common design. 
 
 That a common design, or purpose, by two or more persons, is 
 the essence of the charge of conspiracy, and this common de- 
 sign must be proved in order to wai-rant a conviction, either by 
 direct evidence or by the proof of such circumstances as natu- 
 ]-ally tend to prove it, and sufficient, in themselves, to satisfy the 
 jury of the existence of such common design beyond a reasona- 
 ble doubt.
 
 oOG INSTKUCTIONS 
 
 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. 13., by two or 
 more of the defendants, still, this alone would not be sufficient 
 to wan-ant a conviction for the crime of conspiracy; provided, 
 the jury believe, from the evidence, that each (jf 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. 
 
 HOMICIDE. 
 
 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 neces- 
 saiy, 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 manslaughter. 
 
 MURDER GENERALLY. 
 
 Murder Dofinod. — The crime of murder is committed when a 
 person of sound memory and discretion unlawfully kills any 
 reasonable creature in being, under the peace of the state, with 
 malice aforethought, either expressed or implied. liuss. on 
 Cri., 482; Wart. Am. Crim. Law., 35G; 3 Grcenlf. Evi., § 130. 
 
 Inyoluntary Murder. — AVlien the involuntary killing of a human 
 being happens in the commission of an unlawful act, which in 
 its consequences tends naturally to destroy life, or is committed 
 in the prosecution of any felonious intent, the offense is deemed 
 and adjudged to be murder. 
 
 Express Malice. — Express malice is that deliberate intention 
 unlawfully to take away the life of a fellow-creature, which is 
 manifested by external circumstances capable of proof.
 
 IN CEIMIXAL CASES. 507 
 
 Implied Malice. — Malice is implied when no considerable prov- 
 ocation appears, or when all the circumstances of the killing 
 show an abandoned and malignant heart. 
 [See Malice and Intent.] 
 
 Presmnptioii 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 htive 
 been the act of the defendants, or either of them, then the law 
 pronounces such killing murder, unless it appears, from the evi- 
 dence, that circumstances existed excusing or justifying the act, 
 or mitigating it, so as to make it manslaughter, as explained in 
 these instructions. 
 
 Involiiutary KUling-Act Naturally Tending. — The court further in- 
 structs 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 manslaughter. 
 2 Whar. on Crim. Law, 967. 
 
 Involuntary Killing— In the Commission of a Crime. — The court fur- 
 ther instructs the jury, that when an unlawful unintentional 
 killing of a human being happens, or is committed in the jiros- 
 ecution of any felonious intent, as explained in these instruc- 
 tions, 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 efforts to es- 
 cape from the house with such property, the defendant struck 
 the deceased and thereby caused his death, then such killing 
 would be murder and not manslaughter, and it would be wholly 
 immaterial whether such killing was intentional or not. 2 Bish. 
 on Crim. Law, 720. 
 
 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 tlie pur-
 
 508 INSTRUCTIONS 
 
 pose or witli the intent uf fek)nit)usly taking' from him. l)y force, 
 and against his will, his money, watch or other articles of per- 
 sonal i)ropcrty, and that in the prosecntion of that purpose either 
 one of the defendants struck the deceased, and thereby caused 
 his death, in manner and form as charged in the indictment, then 
 such killing would be murder, not only on the part of the one 
 wdio struck the blow, but also on the part of any one or more of 
 the defendants who were present, aiding or assisting in the origi- 
 nal attempt to take the property of the deceased by force or 
 against his will; if the jury tind, from the evidence, beyond a 
 r(3asonable 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 deceased, or only of disabling him. 
 \See Aiders and Abettors.] 
 
 Blow with Deadly Weapon. — If the jury believe, from the evi- 
 dence, 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 of murder; provided, 
 that they further believe, from the evidence, beyond a reasona- 
 ble doubt, that the blow was stru&k with malice aforethought, or 
 when no considerable provocation appeared. 2 "Whart. on Grim. 
 Law, 971. 
 
 If the jury 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, wil- 
 fully and intentionally, and without legal excuse or justification, 
 as the same is explained in these instructions, and that the de- 
 ceased died in c(jnse(pience of such striking and knocking down, 
 in manner and form as chai-ged in the indictment, then the jury 
 should find the defendant guilty. 
 
 If the jury believe, from the evidence, that the stick in ques- 
 tion, was so large a one that the necessary consequences of a
 
 IN CRIMINAL CASES. 
 
 509 
 
 violent blow with it, on the head, by a man of ordinary strength, 
 would be to destroy human life, then the law regards such a 
 stick, when used in striking a fellow-creature upon the head, as 
 a deadly weapon ; and if you further believe, from the evidence, 
 beyond a reasonable doubt, that the defendant struck the de- 
 ceased with such a stick, upon the head, with malice afore- 
 thought as explained in these instructions, and thereby caused 
 liis death, in manner and form as charged in the indictment, then 
 the defendant is guilty of murder. 
 
 The court instructs the jury, that if they believe, from the 
 evidence, beyond a reasonable doubt, that the defendant struck 
 the deceased on the head with a stick, and that the stick was a 
 large one, and that the necessary consequence of a blow with it 
 in the hands of an ordinary man, when striking a human being 
 on the head, would be to destroy human life, then the law con- 
 siders such a stick to be a deadly weapon. 
 
 And, if the jury further believe, from the evidence, beyond a 
 reasonable doubt, that the defendant struck the deceased 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 space of or thereabouts, after the blow 
 
 was given, then these are circumstances which the jury should take 
 into consideration, together with all the other evidence in the 
 case, in determining whether the blow was what occasioned the 
 death of the deceased. Davis vs. The People, 19 111., 74. 
 
 Blow with Deadly Weapon— No Considerable Provocation, Etc. — If the 
 
 jury believe, from the evidence, beyond a reasonable doubt, tliat 
 on or about, etc., the defendant and deceased met at, etc., within 
 the county, etc., and a quarrel ensued between them, and that 
 the defendant then and there struck the deceased a blow on the 
 head with a dangerous and deadly weapon, as charged in the in- 
 dictment, without any considerable provocation, or without such 
 provocation as was apparently sufficient to excite sudden and 
 irresistible passion, and that, on the same day, deceased died from 
 the effect of that blow, then the jury should find the defendant 
 guilty of murder, unless the jury further find, from tJie evidence, 
 that the defendant inflicted the fatal blow in self-defense to save
 
 510 I N ? Tiir c r I o X 8 
 
 his own life, or to prevent <j::re;it bodily hiirin to liiiusclf, and nii- 
 der such circinnstancestliat a reasonable person might reasonably 
 apprehend danger to his own life, or great Ixxlily harm to 
 himself. 
 
 Words no Siiflicient Provocation. — The court instructs llie jury, 
 that no provocation by words oidy, howisver opprol)rious, will 
 mitigate an intentional killing so as to reduce tlie killing to man- 
 slaughter. 2 Whart. Crim. Law, 970; Iia// v&. State, 16 Ga., 
 223; Rapp x&. State, 14 15. Monroe, 494:; State vs. Starr, SH 
 Mo., 2T<i; Jfartm vs. People, 30 Wis., 21*). 
 
 And, although the jury may believe, fn)m the evidence, that 
 insulting and opprobrious e]nthets were used by the deceased to 
 the defendant, yet, if the jury fui-ther believe, fi-om the evi- 
 dence, bevond a reasonable doubt, that the defendant immedi- 
 ately revenged himself by the use of a dauijei-ous and deadly 
 weapon, in a manner likely to cause the death of the deceased, 
 and did, thereby, cause his death, then tlie defendant is guilty 
 of murder, and the jury should so find by their verdict. 
 
 Death I)y Shootinc: — Party Intends the Natnral Results of his Acts.— 
 
 The court instructs the jury, that in criminal law a person is 
 always held to intend the natural and probable results of his 
 own acts, unless the contrary is made to appear by the evidence; 
 and if one use a deadly weapon, like a gun or pistol, and shoot 
 at another intentionally, and such other is wounded, and, in con- 
 secpience thereof, dies, the person shooting is held responsible 
 for tlie death, and if the shooting is neither justifiable nor ex- 
 cusable in law, he is liable to be punished either for murder or 
 for manslaughter. 
 
 Cause of the Death Must bo Proved. — The court instructs tlu' jury, 
 that it is incumbent upon the peoi)le to show by proof, beyond 
 a reasonable doubt, that the deceased came to his death by reaso7i 
 of the injurv inflicted on him by the pistol ball in (piestion. The 
 j)eople must show, not that such injury wa^^ j)robably the cau>c 
 of the death, but that it was 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 tlie defendant not iruiltv.
 
 IN CRIMINAL CASES. 511 
 
 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 injuiy w^as inflicted 
 by accused with malice aforethought, as explained in these in- 
 structions, and that the deceased died from such wounds, then 
 the jury should find the accused guilty of murder. 3 Greenl. 
 Ev., § 139; 2 Bishop Grim. Law, § 679-680. 
 
 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 afterw^ards died, in maimer and form 
 as charged in the indictment, then the defendant is guilty of 
 murder, although the jury may further believe, from the evi- 
 dence, that the wound was not necessarily mortal, and that with 
 proper care and treatment the deceased might have recovered. 
 It is sufficient, in such cases, to warrant a conviction of the de- 
 fendant, if the jury And, 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. 
 
 MURDER FIRST AND SECOND DEGREE. 
 
 Murder Defined. — The court instructs the jury, that in this state 
 whoever kills a human being with malice aforethought is guilty 
 of murder. 
 
 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 wilful, deliberate and premeditated 
 killing (or which is committed in the perpetration or attempt to 
 perpetrate any arson, rape, robbery, mayhem or burglary) is 
 murder of the first degree.
 
 512 INSTRUCTIONS 
 
 Of llu' Spcond Degree. — The jury are fiirthor instructec'l, tliat 
 whoever commits murder otherwise tliau by means of poison or 
 lying in wait, or otlier kind of wilful, deliberate and premedi- 
 tated killing (or which is committed, etc.), is guilty of murder in 
 the second degree. 
 
 Elements of Murder in the First Degree. — The court instructs the 
 jury, that under our statute, to constitute mui'dcr in the hrst 
 degree the jury must be satisfied, beyond a reas(jnable doubt, 
 from the evidence, not only that the defendant, M'ithout any 
 justifiable cause or legal excuse, as explained in these instruc- 
 tions, killed the deceased in manner and form as charged in the 
 indictment, but they must further believe, from the evidence, 
 ]»eyond any reasonable doubt, that at the time the defendant 
 struck the fatal l»lo\v he had formed in his mind a deliberate, 
 wilful and premeditated purpose to kill the deceased, and that 
 he struck the blow with the intention of effecting that purpose. 
 
 Although the jury may believe, from the evidence, beyond a 
 reasonable doubt, that the defendant, without justifiable cause or 
 legal excuse, as explained in these instructions, killed the de- 
 ceased; still, if you entertain any reasonable doubt whether the 
 killing was wilful, deliberate and premeditated, or whether the 
 fatal blow was struck with deliberate intent on the part of the 
 defendant that the blow should take the life of the deceased, then 
 the jury should only find the defendant guilty of murder in the 
 second degree. 
 
 Killing AVilfiiUy, Etc. — That under our statut(\ the defendant in 
 this case cannot be found <;uiltv of niunk'r in the iirst desi'ee 
 unless the jury are satisfied, from the evidence, beyond a reason- 
 able doubt, not only that the defendant is guilty of feloniously 
 killing the deceased, but it must further appear, from the evi- 
 dence, be\'ond a reasonaltle doubt, tluit such killing was done 
 wilfully, deliberately and with pi'cmeditation; that is, that it 
 was done intentionally, sanely and with 2)i'ior deliberation. And 
 unlc>s all these appear, fi-om the ovidenc^e, beyond a reasonable 
 doubt, the jury cannot lawfully find the defendant guilty of 
 murder in the first degree. Wharton's Law of Homicide, 3G8.
 
 IN CRIMINAL CASES. 513 
 
 No Length of Deliberation, Etc., Required. — The jury are instructed, 
 that while the hiw rec^uires, iu order to constitute murder of tlie 
 first degree, that the killing shall be wilful, deliberate and pre- 
 meditated, still, it does not require that the wilful intent, 
 premeditation or deliberation, shall exist for aii}^ 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 (or pistol 
 fired); 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 defendant had 
 formed in his mind a wilful, deliberate and premeditated design 
 or purpose to take the life of the deceased, and that the blow* 
 was struck in furtherance of that design or purpose, and without 
 any justifiable cause or legal excuse therefor, as explained in 
 these instructions, then the jury should find the defendant guilty 
 of murder of the first degree. 2 Whar. on Crim. Law, 948; 
 Whar. Law of Ilom., 382; 2 Bish. on Crim. Law, § 750. Con- 
 tra — Finn vs. The State, 5 Ind., 400; Fahnestock vs. The State, 
 23 Ind., 231-263. 
 
 To constitute murder in the first degree there must have been 
 an unlawful killing done, purposely, and with premeditated 
 malice. If a person has actually formed the purpose mali- 
 ciously to kill, and has deliberated and premeditated npon it 
 before 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 not time that 
 constitutes the distinctive difference between murder in the first 
 and in the second degree; an unlawful killing, with malice, 
 deliberation and premeditation constitutes the crime of murder 
 in the first degree. It matters not liow short the time, if the 
 party has turned it over in his mind, and w^eighed and deliber- 
 ated npon it. Fahnestock vs. State, 23 Ind., 231. 
 
 If the jury believe, from the evidence, that the defendant 
 
 sought a quarrel with the deceased and first struck him a violent 
 
 l)low with his fist, in the expectation that the deceased would 
 
 resent the blow, and in his turn attack the defendant, so that lie 
 
 might have a chance to shoot or stab the deceased, and thereby 
 
 33
 
 514 INPTRrCTIONS 
 
 take liis life; and further, that in accorchince witli such expecta- 
 tion the said deceased did thereupon attack the defendant with 
 his fists, and the defendant then shot the deceased, as charged in 
 the iiidictnicnt, sufh killing would be murder in the first degree. 
 
 rrciiuHlitaled Desisrii. — If the jury believe, fi-oni 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 circnunstances may have been, 
 unless the act of shooting w%as justitiable, as Explained in tliese 
 instructions, then the defendant is guilty (of murder in tlic first 
 degree); provided, you further believe, fi-om the evidence, 
 beyond a reasonable doubt, that the defendant did the shooting 
 with a premeditated design to kill the deceased. Roman vs. 
 The State, ^\^\^.,2>\^. 
 
 If the jury believe, from the evidence, beyond a reasonable 
 doubt, that the defendant sought a difficulty with the deceased 
 for the purpose of killing him, and with that design j)rovoked 
 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. 
 
 Intoxication as Affecting Intent. — That while it is a general rule 
 of law that voluntary drunkenness is no excuse or justification lor 
 a crime jierpetrated under its influence, still, in cases of this 
 kind, drunkenness, if proved, may sometimes be considered by 
 the jury for the purpose of determining whether the accused, at 
 the time of the alleged offense, was capable of forming a wilful, 
 deliberate and premeditated 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 premcditatedly, to do the act, then such 
 killing, under such a state of intoxication, would only be nnirder 
 of the second degree. 3 Greeidf. Evi., § 148; Wharton's Law 
 on Homicide, 369. Contra — Htate vs. Cross, 27 Mo., 332.
 
 IN CKIMINAL CASES. 515 
 
 By Poisoning- — Material Averments to be Proved. — The court in- 
 structs 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 charo-ed 
 against him, the jury must find, 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 de- 
 ceased wilfully 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 eitlrer 
 of these material propositions, then the prosecution has failed to 
 establish its case, and the jury must acquit the defendant. 
 
 Not Necessary to Prove the Particular Poison or Quantity The jury 
 
 are instructed, that in this class of cases, where the indictment 
 charges that death was caused by poisoning, 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 quan^ 
 tity which would destroy life, nor is it necessary to prove thai 
 such a quantity was found in the body of the deceased. It is 
 sufficient, if the jury 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 ; Wliail. 
 Am. Law of Hom., 323. 
 
 Death Hastened by, Etc Although the jury may believe, from 
 
 the evidence, that a few days preceding the death of the de- 
 ceased, he was suffering from {any disease), still, if the jury 
 further believe, from the evidence, beyond a reasonable doubt, 
 that the death of the deceased was hastened liy the subsequent 
 administration of arsenic given by the defendant, and that it was 
 given by her for the purpose of hastening his death, then the jury
 
 510 INSTRUCTIONS 
 
 should lintl the defendant guilty in manner and form as charged 
 in the indictment. 3 Greeiil. Ev., § 1:30; 2 IJishop on Crim. 
 Law, § 679-68(»; Wharton Am. La.v, Ilom., 241. 
 
 Circumstantial Evidence Must Exclude, Etc. — The jury are in- 
 structed, that when circumstances alone are relied upon by the 
 people for a conviction, the circumstances must be such as apply 
 exclusively to the defendant, and such as are reconcilable with 
 no other reasonable hypothesis than that of the defendant's guilt ; 
 and they must satisfy the mind of the jury, l)eyond a reasonable 
 doubt, of the guilt of the defendant. 
 
 And in this case, if the jury iind, from the evidence, that all 
 the criminating circumstances relied upon by the people for a 
 conyiction will as well apply to another person as to the defend- 
 ant ; or if they are reconcilable with any reasonable hypothesis 
 other than that of the defendant's guilt, or if they do not satisfy 
 the mind of the jury, beyond any reasonable doubt, of the guilt 
 of the defendant, then he cannot be legally convicted, and you 
 
 must acquit him, 
 
 [See Circumstantial Evidence.] 
 
 Circumstances Pointing? as Strongly to Some Other Person. — Should 
 the jury believe, from the evidence, that the deceased died from 
 the effect of poison, administered to him by some one; still, if 
 the jury further find, from the evidence, that some other person 
 had the same opportunity to administer the poison that the 
 defendant had, and that all the circumstances point as clearly to 
 some other person as having administered the poison, as to the 
 defendant, then these facts are sufficient to raise a reasonabh? 
 doubt in the mind of the jury as to the guilt of the defendant, 
 and the jury should acquit him. 
 
 Pointing to Suicide. — Although the jury should believe, h-om 
 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 opportunities for takmg the 
 poison himself, without, the aid of the defendant, that the de- 
 fnndant had to give it to him, and if it is possible in any reason- 
 able mauner to explain all the facts and circumstances proved
 
 IN CKIMINAL CASES. 517 
 
 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 verdict of not guilty. 
 
 Doubt as to Wliich of Two or More is (Juilty. — 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 tlie shot was fired, then 
 the jury should consider the case precisely 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 consideration 
 of all the evidence, that it points as clearly to one A, B. as the 
 person w^ho committed the crime in question, as it does to the 
 defendant, or if, after a fair and full consideration 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. 
 
 The court instructs the jur}^, that when several are jointly 
 charged with the commission of a crime, and it is clearly proved 
 that some one or more of the defendants are guilty, but it is not 
 shown, beyond a reasonable doubt, that all are so, or who, or 
 which of them are guilty, then, and in that case, all the defend- 
 ants must be acquitted, 
 
 [For Proof of Identity, see Burglary.] 
 
 Mnrder not Rednced to Manslaughter by Provoking- Words. — The court 
 further instructs the jury, tliat where a person strikes another 
 with a deadly weapon, in a manner calculated or likely to pro- 
 duce death, no words of reproach, or abuse, or gestures, however 
 irritating or provoking, amount to considerable provocation in 
 law, so as to reduce the crime of killing from murder to man- 
 slaughter, in case such blow results in death. People vs. Turley, 
 50 Cal., 469; Bird vs. State, 50 Ga., 585.
 
 518 IXSTRUCTIOXS 
 
 In the case of a voluntary killini;- of a Inunau being, without 
 lawful excuse or justification, in (H-ilci- to rt'duce the ott'euse fi'oni 
 murder to nuinshiughter, there must be a serious and highly 
 provoking injury inliicted upon the person killing, sutHcient to 
 excite an irresistible passion in a reasonable person, or an 
 attempt, by the person killed, to commit a serious persoiuil 
 injury on the person killing. 
 
 Verdict may be for Manslaiiirliter. — The jury are instructed, that 
 under an indictment for murder, a party accused may be found 
 guilty of manslaughter. And in this case, if after a careful and 
 dispassionate consideration of all the })roof and circ-umstanccs in 
 evidence before you, you have any reasonable doubt as to 
 whether the defendant is guilty of mui-der, then you should con- 
 sider 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 by your verdict, (and in that 
 event it will be your duty to fix, l)y 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. 
 
 MAXSLAUGUTER. 
 
 Manslaughter Defined. — Manslaughter is the unlawful and felo- 
 nious killing of another without any malice, either expressed or 
 implied (and without any mixture of deliberation wliatever). 
 It nuiy be voluntary or involuntai'y. 
 
 Voluntary. — In cases of voluntary inanslaughtor, thci'(> must l)e 
 a serious and higldy proxoking injury iullictcil npoii 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 nmst be the 
 result of the sudden, violent impulse of passion, supposed to be 
 irresistible; for if there should apjiear to have l)een an interval 
 between the assault or provocation gi\c'n, and the killing, suffi- 
 cient for the voice of reason and humanity to be heard, the
 
 IN CRIMINAL CASES. 519 
 
 killing shall be attributed to deliberate revenge, and punished 
 as murder. 
 
 DiToluiitary. — Involuntary manslaughter consists in the killing 
 of a human being, without any intent to do so, in the commission 
 of an unlawful act, or a lawful act which probably might pro- 
 duce 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 {instru- 
 ment used) was not a deadly weapon, and that when the defend- 
 ant struck the blow it was-not his intention to take the life of the 
 deceased, but only to chastise him, then you should find the de- 
 fendant guilty of manslaughter, (and fix the term of his confine- 
 ment in the penitentiary, which may be for any period of time, 
 etc.). 2 Whar., § 944-931. 
 
 The jury are instructed, that if from motives of hatred, re- 
 venge, jealousy or for any wrong or injury, real or imaginary, 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 irresist- 
 ible passion in a reasonable person, and the interval of time 
 between the provocation and the killing is not sufficient for the 
 passions to cool and the voice of reason and humanity to be 
 heard, then the killing is manslaughter and not murder. Sahnier 
 vs. The People, 23 111., 1 ; Fisher vs. The People, 23 111., 283. 
 
 The jury are instructed, that if they believe, from the evidence, 
 that defendant voluntarily got into a difficulty, or fight, with the 
 deceased, but did not intend to kill him, at the time, and did not 
 decline further fio-htino; before the fatal blow was struck, and 
 then drew his knife, and with it, struck and killed the deceased, 
 then the jury should find the defendant guilty of manslaughter; 
 although the jury may further believe, from the evidence, that 
 the cutting and killing were done in order to prevent the de-
 
 520 INSTRUCTIONS 
 
 ceased from gcttiiii; the advantage in the light, or doing tlie 
 defendant great bodily injury. 
 
 MALICE AND INTENT. 
 
 Malice Delliiod. — Tlie court instructs the jury, that nialiee, with- 
 in the meaning of the law, includes nut only anger, hatred and 
 revenge, but every other unlawful and nnjustiiiable motive. 
 State vs. Goodenow, 65 Me., 30, 
 
 .Malice Denotes any Wicked or Corrnpt Motive. — That malice is not 
 confined to ill-will towards an individual, but it is intended to 
 denote an action tiowing from any wicked and corrupt motive. 
 A thing done with a wicked mind, and attended with such cir- 
 cumstances as plainly indicate a heart regardless of social duty, 
 and fully 1)eut on mischief, indicates malice within the meannig 
 of the law; hence, malice is implied from any deliberate and cool 
 act against another, however sudden, which shows an abandoned 
 and malignant heart. 
 
 Malice Presumed, When. — The court instructs the jnry, that if 
 without such provocation as is apparently sufficient to excite irre- 
 sistible passion, a person strikes another with a deadly Aveapon, 
 likely to occasion death, although 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, aiul if death results from 
 the blow it will be murder. 
 
 Malice Aforetliouerht. — The jury are instructed, that the deliber- 
 ate intention, called nuilice aforethought, need be oidy such de- 
 liberation and thought as enables a ])erson to ap}>reciate and 
 understand, at the time the act was connnittcd, the nature of his 
 act and its probable results. 
 
 To constitute malice aforethought, no particular time need in- 
 tervene between the formation of the intention and the act; it is 
 enough if the intent to commit the act, with a full appreciation 
 of the residt likely to folU)W, was present at the time the act was 
 committed, and that the act was not the result of some sudden 
 heat of passion. ])rovoked by some cause calculated to override 
 the judgment, and before sufficient time elapsed for reason to re- 
 sume its sway.
 
 IN CRIMINAL CASES. 521 
 
 Malice Implied. — The jury are instructed, that malice is always 
 implied in law from a wilful and criminal act, unless the evi- 
 dence shows that the defendant was acting from some innocent 
 or proper motive. 
 
 Intent, How Proved. — Upon the question of intent, the court in- 
 structs the jury, that the law presumes a man to intend the rea- 
 sonable and natural consequences of any act intentionally 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. 
 
 The jury are instructed, that if the killing of the person, men- 
 tioned in the indictment, has been satisfactorily shown by the 
 evidence, beyond all reasonable doubt, to have been the act of 
 the defendant, then the law presumes it to have been murder; 
 provided, the jury further believe, from the evidence, beyond a 
 reasonable doubt, that no circumstances existed excusing or jus- 
 tifying the act, or mitigating it so as to make it manslaughter. 
 
 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 an- 
 other violently with a dangerous w^eapon, 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 appar- 
 ently sufficient to make the passion irresistible or involuntary, 
 and the life of the party thus assaulted is actually destroyed, in 
 consequence of such assault, then the legal and natural presump- 
 tion is that death or great bodily harm was intended, and in such 
 case the law implies malice, and such killing would be murder. 
 [See Assault with Intent, etc.] 
 
 INSANITY AS A DEFENSE. 
 
 Criminal Responsibility. — The jury are instructed, as a matter of 
 law, that if a jjerson has capacity and reason sufficient to enable 
 him to distinguish between right and wrong as to the particular 
 act in question — that ]s, if he has knowledge and is conscious
 
 522 INSTKL"CTIOXS 
 
 that the act lie is doin.^ is wi-odo- and would deserve punisliment 
 — he is, in the eye of the \a\v, ot: sound niiud and memory, and 
 capable of committing crime. Bi'lnldeij vs. TJte State, 58 
 Ga., 21)(). 
 
 Wlieii Not KcNponsible. — If the jury l)elieve, from the evidence, 
 that at the time wlien the fatal blow is alleged to have been 
 struck, the defendant was so far affected in his min«l and memory 
 that he was not able to distinguish right and wi-(Hig, and had not 
 knowledge and understanding of the character and consequences 
 of his act and power of will to abstain from it, then he was not 
 a legally I'csponsible being, and the jui-y should tiiid him not 
 guilty. State \?,. Mewher'te)\'^{S lo\WA^'^^\ 1 W liar., Crim. Law 
 7 Ed., 16; Co7n. vs. Rogers, 7 Mete, 500; Freeman vs. People, 
 
 4 Denio, 10; State vs. Iluting, 21 Mo., 404; Willis vs. People, 
 
 5 Tiffany, 715; Anderson vs. State, 42 Ga,, 11 ; People vs. Coff- 
 in an, 24 Cal., 230. 
 
 Note. — Three distinct theories have been propounded as to the degree 
 of evidence requisite to justifiy a conviction on tlie issue of insanity The 
 fli'st 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 preponder- 
 ance of the evidence, and are not to require insanity to be made out beyond 
 a reasonable doubt. A tliird view is, that on such an issue the prospcution 
 must prove sanity beyond a reasonable doubt. Under one or the other of 
 the last two rules the following instructions will be proper: 
 
 Burden of Proof. — The court instructs the jury, that in all crim- 
 inal cases, before conviction can be had, the jiiiy must be satis- 
 fied, from the evidence, lieyoiid a reasonable d,)ubt, that the 
 defendant is guilty in manner and form as charged in the in- 
 dictment. 
 
 Reasonable Doubt as to Sanity. — In order to sustain the defense 
 of insanity it is not necessary that the insanity of the a('cused 
 be established, by a preponderance of evidi'iu-c; il', upon the 
 whole evidence, tlui jury entertain a reasonable doubt as to the 
 canity of the accused they must acquit him. IIopps vs. The 
 People, 31 111., 3S5; People vs. ^YiUon, 4'J Cal., 13.
 
 INCKIMIXALCASES. 523 
 
 That while it is true the law presumes every man to he sane 
 and responsihle for his acts until the contraiy appea/rs, from the 
 evidence, still, if there is evidence in the case tending to rehut 
 this presumption sufficient to raise a reasonable doubt upon the is- 
 sue of sanity, 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 ths time the al- 
 leged offense was committed. Cone vs. McKie^ 1 Gray, 61; 1 
 Greeul. Ev. 13 Ed., § 81. 
 
 That, to w^arrant a conviction in this case, ife is incumbent 
 upon the peof)le to establish, by evidence, to the satisfaction of 
 the jury, beyond a reasonable doubt, the existence of every ele- 
 ment necessary to constitute the crime charged; and if, after a 
 careful and imjiartial examination of all the evidence in the 
 case bearing upon the question of sanity, or insanity, the jury 
 entertain any reasonable doubt of the sanity/ of the defendant 
 at the time of the alleged offense, they should give the defend- 
 ant the benefit of that and acquit him. 
 
 Sanity Presumed— Insanity Mnst be Proved. — The court instructs 
 the jury, that the law presumes everyone to be sane and respon- 
 sible 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 defendant to show, l:)y a pre- 
 ponderance of evidence, that he was affeoted by insanity, or by 
 some insane delusion, as explained in these instructions, at the 
 time of the act, to such an extent tjaat 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, 7 Ed., 55 ; State vs. 
 Laurence, 57 Me., 574; Com. vs. Eddy^ 7 Gray, 583; Ferris vs. 
 The People, 35 K Y., 125 ; Loeffner vs. State. 10 Ohio St., 599; 
 State vs. Hundley, 46 Mo., 414; State vs. Felter, 32 Iowa, 50. 
 
 The jury are instructed, that in all criminal cases the law pre- 
 sumes the defe^idant to have been sane, and to have possessed 
 a sufficient degree of reason to be refj.ponsible for crime, until 
 the contrary be shown by a preponderauce of the evidence; and 
 in this case, if the jury believe, from the evidence, that the de- 
 fendant committed the act charged in the indictment, in manner
 
 524 INSTRUCTIONS 
 
 und form as therein charged, then to establish a defense on the 
 ground (jf insanity, the burden of proof is on the defendant, to 
 tihow, by a preponderance of eviden(;e, that at the time of com- 
 mittin<j^ the act he was Laboring under such a defect of mind 
 and reason that he did not know tht; nature of the act lie was 
 doing, or if he did know, he did not know he was doing what was 
 wrong. 
 
 Impulse of P.ission no Defense. — The jury are instructed, that 
 one who, in possessi(.)n of ji. sound mind, commits a criminal act 
 under the impulse of passion, or revenge, which may tempo- 
 rarily dethrone his reason, or for the time being control his will, 
 cannot be shielded from the consequences of the act by the jilea 
 of insanity. 
 
 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 dire(;t con- 
 sequence of his insanity, titate vs. Stickler/, 41 Iowa, 232. 
 
 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 laboring under a 
 mental delusion upon some pai-ticular matter, or regarding a 
 particular person, and 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 delu- 
 sion regarding some particular subject or person. If the })erson 
 charged is, at the time of the alleged offense, laboring under a 
 mental delusion, and the act itself is the product of such delu- 
 sion, and the party, at the time, did not know or realize that he 
 was doinir wronir, or conunittiuix a crime, then he cannot beheld, 
 criminally, responsible for the act. 
 
 Iiisajjitj the Efliricnt 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 appears, from the evi-
 
 IN CRIMINAL CASES. 525 
 
 .deuce, 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. 
 
 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 ac- 
 cused of crime, in order that tlie defense may avail, the jury 
 ought to believe, from the evidence, that at the time of the com- 
 mission of the crime the mind of the accused was so far affected 
 with insanity as to render him incapable of distinguishing be- 
 tween right and wrong in respect to tlie 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 di- 
 rect his movements. 
 
 To constitute a defense, tlie unsoundness of mind, or insanity, 
 must be of such a degree as to create an uncontrollable impulse 
 to do the act charged by overruling the reason and judgment, 
 and obliterating the sense of right and wrong as to the particu- 
 lar act done, and depriving the accused of the power of choos- 
 ing between them. 
 
 Drunkenness no Excuse for Crime. — The jury are instructed, that 
 voluntary intoxication or drunkenness is no excuse for crime 
 committed under its influence, nor 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., GDI ; 
 Beasley vs. State, 50 Ala., 149. 
 
 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 
 presumes that such person is sober enough to form the specitht 
 intention to kill the one shot at, and, in such case, he is crimi- 
 nally responsible for his act. Estes vs. State, ^^ QQ.,yol) 1 
 Wharton Crim. Law, § 32,
 
 526 INSTRrCTTOXS 
 
 The jury are furtlier instructed, as a matter of law, that if a 
 person vohintarily becomes intoxicated, even total insanity, if 
 the immediate result of such intoxication, does not excuse a 
 criminal act committed while under the intluence of such intox- 
 ication. 1 Wharton on Crim. Law, § 32. 
 
 The jury are further instructed, that while intoxication or 
 druid-cenness is no excuse for a criminal act conunitted under its 
 influence, still settled insanity produced by intoxication excuses 
 an act committed under its influence and caused by it, in the 
 same way as insanity produced by any other cause. 1 Wharton 
 Crim. Law, § 33. ' 
 
 If the jury believe, from the evidence, beyond a reasonable 
 doubt, that the defendant committed the act charged, in manner 
 and form as charged 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 im- 
 mediate effects of intoxicating drink) as not to have been con- 
 scious of what he was doing, or that the act itself was wrong, 
 then they should find the defendant not guilty. U. S. vs. DreiL\ 
 5 Mason U. S. Eeports, 28; Carter vs. StMe, 12 Tex., 500; 
 Maconneliey y%. State^ h Ohio St., 77; Bales \?>. State, 3 W. 
 Ya., 685. 
 
 The jury are instructed, that under our law voluntary drunk- 
 enness is no excuse for the commission of a crime. AVhore, 
 without intoxication, the law would impute a criminal intent, 
 then proof of drunkenness will not avail to disprove such intent. 
 Bafferty vs. The People, QQ 111., 118. 
 
 The jury are instructed, that although they m.ay believe, from 
 the evidence, that the defendant committed the criminal act, in 
 manner and form as charged in the indictment, still, if the jin-y 
 further believe, from the evidence, that at the time he so com- 
 mitted the act he was so affected by what is known as delirium 
 tremens tliat he did not ]<n(>\v the nature of the act, nor whcthci' 
 it was wrong or not, and that such delirium was induced by 
 antecedent and long-continued use of intoxicating drinks, and 
 not as the immediate effect of intoxication, then the defendant 
 cannot l>e held ciliiiiually responsible for such act, and the jury 
 should find the defendant not guilty. Bailey vs. State, 26 Ind., 
 422.
 
 IN CRIMINAL CASES. 527 
 
 That although drunkenness, in itself, is no excuse or palliation 
 for crime conmiitted while under its influence, yet mental un- 
 soundness, superinduced by excessive drunkenness, and continu- 
 inor after the intoxication has subsided, mav be an excuse; 
 provided, such mental derangement be sufficient to deprive the 
 accused of the ability to distinguish between right and wrong. 
 Beasleij vs. The State, 50 Ala., 149. 
 
 SELF-DEFENSE. 
 
 Justifiable Homicide— Self-Defense. — The jury are instructed, that 
 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 sur- 
 prise, 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 xs. Stock- 
 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 person 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 antag- 
 onist, the killing is excusable upon the ground of self-defense. 
 
 Danger Need not be Real, if Reasonably Apparent. — The court in- 
 structs the jury, that the law is: If a person is assaulted in such 
 a way as to induce in him a reasonable belief that he is in 
 actual danger of losing his life, or of suffering great bodily 
 harm, he will be justifled in defending himself, although the 
 danger be not i-eal, but only apparent. Such a person will not
 
 -^ 
 
 528 INSTRUCTIONS 
 
 be held responsible, criminally, if he acts in self-defense, from 
 real and honest convictions as to the character of the danger, 
 indnced by reasonable evidence, although he may be mistaken 
 as to the extent of the actual danger. Ste'nimeyer vs. The Peo- 
 ple, 95 111., 383; Boach vs. The People, 77 111., 25; State vs. 
 Fraunhxirg, 40 la., 555. 
 
 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 sufR- 
 cien't 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. TJie 
 People, 71 III, 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 suffci-ing great bodily 
 harm, then he was justified in defending himself, whether the 
 danger was real or only a}>parent. Actual oi- i)ositive 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 therefrom as to the actual state 
 of things surrounding them; and, in such cases, if persons act 
 from honest convictions, induced by reasoiuiblc evidence, they 
 will not be held responsible, (.'riminally, for a mistake as to the 
 extent of the actual danger. 
 
 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 were such as in sound reason 
 would justify, or induce in liis mind an honest belief that he was
 
 tN CRIMINAL CASES. 529 
 
 in claiic;cr of receiving;, from tlie deceased, some great bodily 
 harm, and that the defendant, in doing what ho then did, was 
 acting from the instinct of self-preservtition, then he is not 
 guilty, altliongh 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 conduct 
 of the j^arties 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-defense, or whether 
 they were given in carrying out an unlawful purpose; and if the 
 jury believe, from, the evidence, that the force used was unrea- 
 sonable, in amount and character, and such as a reasonable mind 
 would have so considered, under the circumstances, it is proper 
 for the jui-y to consider that fact in determining whether the 
 killing was in self defense. 
 
 Force may be Resisted by Force. — The jury are instructed, that 
 under the laws of this state a person has a right to resist an un- 
 lawful 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. 
 
 If the jury believe, from the evidence, that at the time of the 
 alleged assault the said A. B. made an attack upon the defend- 
 ant, apparently with an intent to do him great bodily injury, and 
 that the defendant's conduct on that occasion was the result of a 
 reasonable a23j3rehension, honestly entertained, that his act was 
 necessary to protect himself from great bodily harm then 
 threatened, then the jury should find the defendant not guilty. 
 
 If the jury believe, from the evidence, that at the time of the 
 shooting in question the said A. B. made an attack on the 
 defendant with a club, under such circumstances as to create in 
 the mind of a reasonable and ordinarily courageous man an 
 honest belief that he was in danger of receiving great bodily 
 harm, and if the jury further believe, from the evidence, that 
 the defendant at the time did honestly believe he was in danger 
 
 S4:
 
 530 INSTRUCTIONS 
 
 of roccivinii* n-i'oat budilv liai'iii, and in li'ood faitli shot to pi'otcct 
 himself theivlVoiii. and not from motives of ill-will or lualire, 
 then sucli shootin«^ was excusable, and the jury should lind the 
 defendant not guilty. 
 
 Assailant Kclirinp: from the Fi^'ht, — The jury are instructed, tliat 
 although they may believe, from the evidence, that the defend- 
 ant 'onimenced the fight in question, and made the first attack 
 npoi. the deceased; still, if the jury further believe, from the 
 evidence, that the defendant afterwards and before the fatal 
 blow AVIS struck, ceased to fight, and in good faith withdrew 
 from tlh' contlict by i-etrcating, or otherwise, then the right of 
 the deceased to employ force against the defendant ceased; and 
 if the dG.'.eased did not then desist from attempting to use 
 violence t awards the defendant, then the defendant's right to 
 defend hir.tself revived; and if he then fouml himself in a[>par- 
 ent dango.- of losing his life, or of sustaining great bodily 
 injury at tl e hands of the deceased, he had the same right to 
 defend him.jelf that he would hav(! had if he had not originally 
 commenced the eonfiict. Ter/'ell vs. Tlic Comtnonwealth, 1"> 
 Bush. (Ky.)^ 246. 
 
 To justiiy the taking of life, in self-defense, it nnist a})pe;ii-, 
 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 apjicar that the cin-umstances were such as to excite 
 the fears of a reasonable person that the deceased intended to 
 take his life, or to infiict on him great bodily harm, and that the 
 defendant really acted under the influence of these fears and not 
 in a spirit of revenge. 
 
 Defense of Habitation. — The law is that one assailed with a 
 deadly weapon in his own house, is not oldiged to fiee. If such 
 a person is violently assaulted, without being in fault, he may 
 rejjcl force by force, and if, in tlic i-easonable exercise of his 
 right of self-defense, and using no more force than is api>arently 
 necessary in defense of himself and habitation, he kills his 
 assailant, the killing is justifiable homii-ide. liaiii/an vs. State, 
 57 Ind., 80.
 
 IN CRIMINAL CASES. 531 
 
 If the jury believe, from the evidence, that the defendant, in 
 defense of himself, inflicted npon the deceased the wounds or 
 stabs which caused his death, while deceased was manifestly 
 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 him, or 
 offering personal violence to the defendant, being in said dwell- 
 ing, 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 tlu^ 
 killing, and the conduct of the parties at the time, and immedi- 
 ately previous thereto, and the means and force used as bearing 
 upon the question of whether the killing was in defense of hab- 
 itation, in good faith, or whether it was done maliciously and in 
 a spirit of hatred or revenge. Greschia vs. The People, 53 111., 
 295. 
 
 Attack Provoked by the Defendant. — The court instructs the jury, 
 that a party charged with an unlawful or deadly assault npon 
 another, cannot avail himself of the claim of necessary self- 
 defense if the necessity for such defense was brought on by his 
 own deliberate, wrongful act. Adams vs. The People, 47 111., 
 376. 
 
 Danger Mnst be Reasonably Apparent. — The court instructs the 
 jury, that although they should find, from the evidence, that 
 the said A. B., and the defendants, got into a quarrel 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 man-
 
 532 INSTUUCTIONS 
 
 nev calculated to take life, or do great bodily injury, unless the 
 circumstances were such as to lead a reasonable person to l)e- 
 lieve that such an assault was necessary, on tlie })art of the said 
 defendant in self-defense, to prevent receiving a great bodily 
 injui-y liiniself. 
 
 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 reasonable and 
 well-grounded belief of danger to life, or of great bodily harm, 
 in the mind of an oi-dinarily coui-ageous man, the law will not 
 justify the killing on the gi-ound 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 kill- 
 ing 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 M-ith his safety 
 to avoid the danger and avert the necessity for the killing. 
 
 Reasonable Doubt as to Apijarent Daiiiror. — The jury are instiMictcd, 
 that if, from the evidence, they have any rcasonaldo doubt as 
 to whether the defendant, at the time of the striking, was un- 
 der reasonable apprehension and honest fear that the deceased 
 intended and M'as about to inflict upon him great bodily harm, 
 and that he fired the shot under that belief, and in self-defense, 
 then the jury must acquit the defendant. Lavihi' vs. Tlte 
 People, 74 111., 2-30. 
 
 The jury ai-e instructed, that if there is, in their minds, any 
 reasonable doubt whether the defendant had reason to believe, 
 and did believe Mhen ho struck the fatal blow; if you find that 
 lie did strike such l)low, that ho was acting in necessary self- 
 defense to save his own life, or to prevent receiving great l)od- 
 ily harm, then you sb.o:;ld give the defendant the benefit of sucb 
 doubt and find him not guiltv.
 
 IN CRIMINAL CASES. 
 
 LARCENY. 
 
 533 
 
 Larceny Defined. — The court instructs the jury, that larceny is 
 the felonious stealing, taking and carrying away of the personal 
 goods, money, bond, bill, note, or other personal property of 
 another. 
 
 Every Material Allegation Must be Proved. — Tlie court instructs the 
 jury, that in order to warrant a conviction in a criminal case, it 
 is incumbent upon tlie people to prove to the satisfaction of the 
 jury the truth of every material allegation in the indictment be- 
 yond all reasonable doubt; and if, after a consideration of all the 
 evidence in the case, the jury entertain a reasonable doubt as to the 
 truth of any one of these material allegations, then it is the duty 
 of the jury to give the defendant the benefit of such doubt, and 
 return a verdict of not guilty. 
 
 Value Must be Proved. — That among the material averments 
 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 prosecution have failed to 
 prove, affirmatively, some value to said property, then it is the 
 duty of the jury to acquit the accused. A simj^le 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. 
 
 Name of the Person Injured Must be Proved. — The court instructs 
 the jury, that it is essential in all criminal prosecutions, that the 
 name of the party injured should be proved, as charged in the 
 indictment; and, if the proof shows in this case, that the prop- 
 erty stolen belonged to C. B. and not to A. B., as charged in the 
 indictment,, the jury must acquit the defendant. 
 
 That it is necessary for the pi-osecution to prove the owner- 
 ship 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 (Ac>/'S(?), mentioned in the indictment, the jury must 
 find the defendant not guilty.
 
 IXSTRUCTIOXS 
 
 Special Property Sufflcient. — As to the ownership of the property, 
 tlie court instructs the jury, that if the said 0. D. had the actual 
 care, custody and right to use the said {hoi\se), 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 pur- 
 ]H)ses of this trial, sufficient evidence of ownership to sustain the 
 alleiratiou in the indictment, that he was the owner. 
 [As to Special Property, see Malicious Mischief.} 
 
 Criminaliu^ Cii-cumstauces. — If the jury l)elieve, from the evi- 
 dence, 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 indictment, 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 there- 
 after the defendant was seen to be spending the same kind of 
 money lavishly, and for articles of ornament and luxury, appai-- 
 ently unsuited to his circumstances and condition in life, then 
 these are circumstances tending to show the guilt of the defend- 
 ant, and should be considered l)y the jury in connection with all 
 the other evidence in the case, in determining the guilt or inno- 
 cence of the defendant, unless he has given a satisfactory account 
 of how he obtained the money which he was so spending. 
 
 Person Having Possession of Property Must be Produced. — Although 
 the jury may believe, from the evidence, beyond a reasonable 
 doubt, that the said A. B. was the owner of the property in 
 question, at the time of the alleged taking; yet, if the jury fur- 
 ther believe, from the evidence, that the said {horse) was, at the 
 time it is alleged to have l>cen stolen, in the actual possession of 
 one C. J)., and under his exclusive control at the time, and that 
 it was in the power of the prosecution to have produced the said 
 C, D. as a witness on this trial, then the jury should accpiit the 
 defendant. 
 
 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 possession
 
 IN CRIMINAL CASES. 535 
 
 of such other person, then, if it is in the power of the prosecu- 
 tion to produce the person, so having such possession, as a wit- 
 ness, he must be produced, in order to sliow that tlie property 
 was not taken with his consent; and, in such case, the evidence 
 of such person cannot be supplied by other proof, nor can the 
 accused be convicted without it. 2 Russ. on Crini., 122; titate 
 vs. Osborne^ 28 Iowa, 9. 
 
 Taking- Must be with Felonious Intent. — The court instructs tlie 
 jury, that every unlawful taking of the goods and chattels of 
 another, without his knowledge or consent, does not amount to a 
 larceny; to make it such, the taking must be such, and accompa- 
 nied by such circumstances, as show a felonious intent; that is, 
 an intent to steal the property. 
 
 Even though the jury may believe, from the evidence, that 
 the money in question was taken from the said A. B. contrary 
 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, intending 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 must have been taken with an intent to steal the same. 
 State vs. Wood, 4G la., 116. 
 
 Taken Under Claim of Rij?lit or Title. — The jury are further in^ 
 structed, that, although they may believe, from the evidence, be- 
 yond 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 defend- 
 ant 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 tlie 
 possession of the property, or not. State vs. Bond, 8 Clarke, 
 (la.), 540 ; 2 Whar. on Crim. Law, § 1770. 
 
 That the intent being necessary to complete the crime of lar- 
 ceny, if a person, under the honest impression that he has a right
 
 53G INSTRUCTIONS 
 
 to the property, said to have been stolen, takes it into his posses- 
 sion mider snch claim of right, this would not be larceny; and, 
 in this case, if the prosecution have failed to prove, beyond a 
 reasonable doubt, that the property in question v\'as taken by the 
 defendant, knowing at the time that it was the property of an- 
 other, and with the intention of feloniously converting the same 
 to his own use, then it is your duty to a;* juit the defendant. 
 
 The court further instructs the jury, that where property is 
 taken under a claim of right, and there be any fair pretence of 
 right to the property, and the jury believe, from the evidence, 
 that such claim is made in good faith, then it is the duty of the 
 jury to find the defendant not guilty. 
 
 That, although you may believe, from the evidence, that the 
 defendant would be liable in an action of trespass for the value 
 of the property in question; still, unless the prosecution have 
 proved, beyond a reasonable doubt, that the defendant feloniously 
 stole the same, then you nuist acquit the defendant. 
 
 Possession Obtained by Fraud wUh Intent, Etc. — If the juiy believe, 
 l)e\()n(l a reasonable doubt, that the defendant, at or al)out the 
 time stated in the indictment, (at the saloon of E. M.,) in this 
 county, by any fraudulent means or representation, induced the 
 said A. B. to take out his money, with the intent, on part of the 
 defendant, at the time to steal said moiu'v, and that in conse- 
 quence thereof, the said A. 1>. did take out his money, and that 
 in pursuance of such intent, the said defendant did then and 
 there feloniously steal, take and cai-ry away said money, in man- 
 ner and form as charged in the indictment, then the jury should 
 find the said defendant guilty of larceny. 
 
 If the jury believe, from the evidence, beyond a reasonable 
 dou])t, that the defendant obtained the possession of the money, 
 described in the in(li(;tment, fraudulently and with an' intent 
 then and there to steal the same, and of feloniously converting 
 the same to his own use, in mamu'r and form as charged in the 
 indictment, then this in law would amount to a larceny, notwitli- 
 standing the said A. B. knowingly and intentionally parted with 
 the ]K)Ssession of the money. 3 Greenl. on Evi., § 160; 2 Whar. 
 un Criui. Law, § lTfc'7.
 
 IN CRIMINAL CASES. 537 
 
 Money Must be Proved to be genuine. — Tlie jury are instructed, that 
 to warrant a conviction under this indictment, the jury must be- 
 lieve, from the evidence, that one or more of the treasury notes, 
 bank bills, or other money, alleged to have been taken by the de- 
 fendant, 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 l)ill, or other money, and that there is 
 no such evidence before the jury, then the jury should find the 
 defendant not guilty. Collins vs. The People^ 39 111., 233. 
 
 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 tlie stolen property in his posses- 
 sion, then, in determining the weight to be attached to that cir- 
 cumstance, as tending to prove guilt, the jury shall consider all 
 the circumstances attending such possession — the proximity of 
 the place where found to tlie phice 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 per- 
 sons had access to the place where the property was found. All 
 these circumstances, so far as they have been proved, are profiler 
 to be taken into account by the jury in determining how far the 
 possession of the property by the accused, if it has been proved, 
 tends to show his guilt. 3 Greenl. Evi., § 32; Conkwright vs. 
 The People, 35 111., 204; State vs. Hodge, 50 N. H., 510. 
 
 The court instructs the jury, that the possession of recently 
 stolen property is usually regarded, in law, as a criminating cir- 
 cumstance, strongly tending to show that the possessor stole the 
 property, unless the facts and circumstances surrounding or con- 
 nected with such possession, or other evidence, explains or shows 
 such possession might have been acquired honestly. 
 
 In this case, if the jury believe, from the evidence, beyond a 
 reasonable doubt, that the property described in the indictment 
 was stolen, and that the defendant was found in the possession 
 of the property soon after it was stolen, then such possession is, 
 ill law, a strong criminating circumstance, tending to show the
 
 538 INSTRUCT IONS 
 
 o;iiilt of the defemliuit, uiik-ss tho evidence, and the facts and 
 (tircunistances proved, show that he may have come honestly hi 
 possession of the same. 
 
 Possession Explained. — The court instructs the jury, tliat while 
 possession of stolen property recently after the theft, if unex- 
 plained, is a circumstance tending to show the guilt of the 
 possessor, still, in this case, if the jury believe, from the evi- 
 dence, that 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 pos- 
 session of the property, and removes every presumption vi guilt 
 growing out of such possession. Jones vs. Tlie People^ Yl 111., 
 259. 
 
 LARCENY AS EATI.El': E>rCEZZLE:\IENT. 
 
 Meaning of the Terms. — The court instructs the jury, that the 
 meaning of the word embezzlement is the fraudulently removing 
 or secreting personal property, with which a party has been 
 entrusted, for the purpose of ai)plying it to his own use. There 
 can be no embezzlement, within the legal meaning of the word, 
 unless the party, when he takes the property or money, does it 
 secretly, with an intent to defraud the owner. 
 
 By Bailee — 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 appear 
 that such conversion was with an intent to steal the same. 
 Phelps vs. The People, 55 111., oo4. 
 
 Taken with Intent to Repay Himself. — If the jury believe, from 
 the evidence, that the defendant did take and convert to his own 
 use money belonging to the said A. B., and wdiich came into his 
 liands as the clerk of the said A. B., still, if the jury further 
 believe, from the evidence, that when defendant so took said
 
 IN CRIMINAL CASES. 539 
 
 money, he honestly and in good faith intended and expected to 
 replace said money, and make the same good to the said A. B., 
 then the jury should not find the defendant guilty under this 
 indictment. 
 
 No Felonious Intent, When. — If the jury believe, from the evi- 
 dence, that the defendant, as clerk or salesman of the said .V. B., 
 received moneys belonging to him, and honestly and fairly 
 charged himself with the same on the account books kept for 
 that purpose, and afterwards used the money for his own ben- 
 efit, 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 he was able, these 
 facts are all proper to be taken into account by the jury, with 
 all the other evidence in the case, in determining the question 
 whether the defendant used the money with any felonious or 
 fraudulent intent; and if, upon a consideration 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, § 300, 
 
 Felonious Intent Necessary. — The jury are instructed, that the 
 taking or conversion of personal property which renders a per- 
 son guilty of simple larceny, or of embezzlement, is a feloni- 
 ously taking or conversion, 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. 
 
 That to constitute larceny by a bailee, it is absolutely neces- 
 sary that it shall appear, from the evidence, beyond a reasona- 
 ble doubt, not oidy that the property was converted by the 
 defendant to his own use, but also that at the time of conversion 
 the party intended feloniously to steal the same.
 
 540 INSTRUCTIONS 
 
 MALICIOUS MISCHIEF. 
 
 Malicious mschief. — The jury aix' iiistnictcd, tliat in this case 
 the dofcndant is charged with liaving williiUy and inalicioiisly, 
 etc.; and if the jury believe, from the evidence, beyond a rea- 
 sonable doubt, that the defendant committed the crime, in 
 maimer and form as charged in the indictment, within {eujhteeii 
 w^on^;/^^s) before the finding of the iiidictuR-nt in this case, then 
 the jury should find the defendant guilty. 
 
 Malice, How Proved. — If the jury believe, from the evidence, 
 beyond a reasonable doubt, that the defendant inflicted the 
 injury upon the property in question, in numuer and form as 
 char<'-ed in the indictment, wilfullv and wautoulv, and without 
 any reasonable excuse being given therefor, then the law will 
 imply malice against the owner of the property. 2 Whar. Orini. 
 Law,^ 7 Ed., 2008. 
 
 Ownership, How Proved. — When personal propeity is left in the 
 care and custody, and under the control of a person not the 
 absolute ownei-, but having a legal right to such possession, not 
 as agent or servant of such ownei-, is injured, the person having 
 such control and possession has such an interest in the propei'ty 
 as will authorize the property to be laid in the indictment, for 
 maliciously injuring the same, as the property of the person so 
 having it in charge. 2 AVhar. Grim. Law, T Ed., 1818; People 
 vs. lIon\ 7 Barb., 9. 
 
 If the jury believe, from the evidence, beyond a reasonable 
 doubt, that the proi)erty in (piestion was, at the time of the 
 alleged iujury, either the absolute property of the said A. B., or 
 that it was left in his possession by the owner, with the right to 
 use and control the same, and with an absolute right to the pos- 
 session thereof at the time of the alleged iujury, then the owner- 
 ship of the property is properly laid in the indictment, as the 
 property of the said A. 15. 
 
 O^vnership Must be Proved as Alleged. — That the ])roperty in the 
 animal injured is laid in the said A. B., and it is nuitcrial for
 
 IN CRIMINAL CASES. 541 
 
 the prosecution to prove that he had a general or special prop- 
 erty in the animal; and unless this has been proved to the 
 exclusion of every reasonable doubt, the defendant is entitled to 
 an acquittal. 
 
 Injury Must be Proved as Alleged. — If the jury believe, from the 
 evidence, that the animal described in the indictment 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 inflicted by the defendant, 
 and in the manner described 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 
 other manner 'than that charged in the indictment, this is suffi- 
 cient to raise a reasonable doubt, and the defendant should be 
 acquitted. 
 
 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 the party injured would be 
 compelled to resort to a civil action for redress. 
 
 Malice Against tlie Owner Mnst be Shown. — That the malice neces- 
 sary to constitute this offense must exist against the owner of the 
 property, or against some one having a general or special interest 
 therein. Malice against the animal, if proved, will not warrant 
 a conviction. State vs. Endou\ 10 la., 115; 2 Bishop Crim. 
 Law, § 964; TJ. S. vs. Gideon, 1 Minn., 292. Contra— Moshi/ 
 vs. State, 28 Ga., 190. 
 
 That 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, wilfully 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.
 
 542 INSTRUCT I o.vs 
 
 If llic jury liflio\-c\ froiii the evidenco, tliat tlic (Icfemlaiit 
 shot and iiijiircil the animal in (jiu'stion, in manner and form as 
 eharged in the indictment, recklessly and want(jidy, anil without 
 any provocation, then the law will presume malice against the 
 owner, and the jury should find the defendant guilty. Moshy 
 vs. State, 28 Ga., 100. 
 
 PERJURY. 
 
 Note. — Pei-jury assigned upon tostimony, given by defendant on u trial 
 before a justice of tlie peace, in swearing tliat ho " bougiit the liorse of A. 
 B., and paid $100 cash for it at the time.'' 
 
 Charge Must be Proved in Manner and Form, Etc. — If the jury believe, 
 from tlie evidence, heyond a reasonable doubt, that the defiMid- 
 ant knowingly and willully testified falsely, in manner and form 
 as charged in the indictment in this case, then the jury should 
 find the defendant guilty. 
 
 Proor to Authorize ronvlotion. — If the jury believe, from the evi- 
 dence, beyond a reasonable doubt, that; some time on or about, 
 etc., uj^on the trial of an action of {reple^nn), in which the value 
 
 of the i^roperty 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 tes- 
 tified 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 believe, from the evidence, 
 beyond a reasonaljle doubt, that whether he had so bought the 
 {horse) of A. B., and paid $100 in cash for it at the time, was 
 a material question on such trial, and that such testimony was 
 untrue and false, and ku(nvn to the defendant to be untrue and 
 false at the time he gave such testimony, then the jury should 
 find the defendant guilty. 
 
 Materiality Snflleient, >Vlien.— The jury are instructed, as a matter 
 of law, that to I'cndcr testimony material in a case it is not 
 necessary that it shoidd lir.ir directly upon the main issue in the 
 case; it is sufficient if it is material to any cpiestion arising upon
 
 IN CRIMINxiL CASES. 543 
 
 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 ; Cotn. 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 R. 
 L., an acting justice of the peace in this county, in manner and 
 form as charo-ed in the indictment, and also that one of the ques- 
 tions which arose on said trial was, etc. {or that any witries.'^ 
 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 $100 in cash for it, at the time, was a material 
 question on said trial, and if the jury further believe, from the evi- 
 dence, beyond a reasonable doubt, that the defendant then and 
 there was sworn as a witness by the said justice, on said trial, 
 and testified tliat, etc., and that such testimony was false, and 
 that the defendant knew it to be false when he so testified, then 
 the jury should find the defendant guilty. 
 
 One Witness Siiffleient, When. — The court instructs the jury, that 
 as to each and all of the material averments in the indictments, 
 except the allegation of the falsity of the testimony therein 
 stated and set forth, they may be proved by the testimony of one 
 witness alone; provided, the jury are satisfied, beyond a reason- 
 able doubt, of the truth thereof by the testimony of such wit- 
 ness; and as regards proving the falsity of such testimony the 
 court instructs the jury, that while that fact cannot be established 
 by the testimony 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 testimony of one witness and other corroborat- 
 ing facts or circumstances corroborating such witness; provided, 
 the jury are satisfied, beyond a reasonable doubt, from the testi- 
 mony of such witness, and such corroborating facts and circum- 
 stances that such testiuK^ny was false in fact. U. S. vs. Wood, 
 14 Peters, 430; 1 Greenl. Evi., § 257; State vs. Baymon, 20 la., 
 583. 
 
 Antliority of the Officer Must be Shown. — The jury are further in- 
 structed, that while it is necessary for the prosecution, in order
 
 54:4 INSTItrCTIONS 
 
 to warrant a coiivietioii for perjury, tt) show that the person ad- 
 ministering the oath was authorized, by law, to administer oatlis, 
 still, if it be shown, by the evidence, beyond a reasonable doubt, 
 that the oath was administered ])y a person who was then an 
 acting justice of the peace in and for the county where tlie oath 
 was administered, tliis is suthcient evidence of his authority to 
 administer the oath, if^/v' vs. People, 42 111., 307; State vs. 
 Furlong, 20 Me., 69; Weston vs. Lumleij, 33 Ind., 48G. 
 
 Testimony Alles^cd Must \w rn.vcd. — Tlie jury are further in- 
 structed, that while it is incumbent up<»n the people, 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 contained in the indictment, still, 
 it is not necessary that they sliould be proved in the precise 
 words alleged ; it is sufficient if they are, substantially, proved 
 in language and effect as therein stated. People vs Warner, 5 
 Wen., 271; 3 Greenl. Evi., § 193. Taylor vs. State, 48 Ala., 
 157. 
 
 >'o Reasouable Grounds of Belief. — The jury are instructed, that 
 while false swearing, under an honest belief that the statements 
 are true, is not perjury, 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 evidence, beyond a reasonable doubt, 
 that the defendant swore falsely, as charged in the indictment, 
 and that he had no reasonable grounds for believing his state- 
 ments 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 
 People, etc., 94 111., 505; aVrreonl. Evi., § 200. 
 
 Testimony Must l)e Wilfully and Knowin^'ly 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 dMubt whether the de- 
 fendant, knowingly and wilfully, testified falsely in giving such 
 testimony, the jury should find the defendant not guilty. 
 
 The court further instructs the jury, that to wan-ant a verdict 
 of guilty in this case the prosecution must establish, by evi-
 
 IN CKIMINAL CASES. 545 
 
 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 that that testi- 
 mony was false, and furthermore, that the defendant knew it to 
 be false, or had no good reason to believe it to be true, at the 
 time he testified. 
 
 Official Character of the Justice Must be Proved.— That among the 
 
 material averments in the indictment is the statement that the 
 defendant was sworn by R. L., that the said E,. 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 indictment, 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 jury 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 indict- 
 ment. 
 
 That the Accused was Sworn Must 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 a reasonable doubt; 
 and if the jury entertain any reasonable doubt as to whether the 
 defendant was affirmed histead of being sworn, in the usual 
 manner before testifying, the jury should find the defendant not 
 guilty. Ilitesman vs. State, 48 Ind.. 473. 
 
 More Than One Witness Required. — If the jury find that the sev- 
 eral witness who have testified for the prosecution (or the wit- 
 nesses, A., B. and C), have each testified to separate and distinct 
 facts or circumstances, then such testimony must be considered 
 by the jury as the testimony of a single witness upon each spe- 
 cific 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 
 
 35
 
 546 INSTKUCTIONS 
 
 the prosecution has failed to prove the falsity of such testimony 
 as required by law, unless the jury further find, from the evi- 
 denee, that the testimony of such witness has been corroborated 
 upon tluit point by other facts or circumstances proved on the 
 trial. State \&. Heed, b7 Mo., 252; 2 Wharton Crim. Law, § 
 2270; State \s. Raymond, 20 la., 582; Crasen vs. The State^ 
 10 Ohio, St. 258; Hendricks vs State, 26 Ind., 493. 
 
 The jury are further instructed by the court, that the law pre- 
 sumes the testimony of the defendant set out in tlie indict- 
 ment to be true and of equal value to the testimony of any 
 other one witness; and in order to convict the defendant of per- 
 jury the people must satisfy the jury, beyond a reasonable doubt, 
 of its falsity, and that by the testimony of more than one wit- 
 ness, or by the testimony of one witness and other proofs tend- 
 ing to corroborate such witness; and unless the falsity of the 
 testimony alleged in the indictment has been established 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 regarding his guilt or 
 innocence. 
 
 Every Material Allesration Must be Proved. — That before the jury 
 will be warranted in finding the verdict of guilty in this case, 
 they must 1)0 satisfied, beyond a reasonable doubt, from the evi- 
 dence introduced before them, that the defendant was sworn as 
 a witness by E,. L., on the trial of an action of {replevin) pend- 
 ing before him, as an acting justice of the peace of this county, 
 wherein A. was plaintiff and B. was defendant — that the value 
 
 of the property in question, in said suit, did not exceed S ; 
 
 that upon such trial the defendant testified upon oath that he 
 bought the horse of one A. B., and paid $100 in ca'sh for it at 
 the time; that whether he had so bought the horse was a 
 nniterial question on that trial; that such testimony was false, 
 and that tiie defendant knew it to be false at the time he so testi- 
 fied; and, unless the prosecution ha\e jiroved each and all of the 
 matters above enumerated, beyond a reasoiuible doubt, l)y evi- 
 dence introduced before the jury, the jury nnist find the defend- 
 ant not guilty. 2 \Vhart<)n, Crim. Law, § 2211; Pajikey \?,. 
 ^fate, 1 Scam., 80; Montgomery vs. State, 10 Ohio, 220; 
 State vs. Fassett, 16 Conn., 457.
 
 ^ IN CRIMINAL OASES. 547 
 
 Materiality Must be Shown. — The jury are further instructed, that 
 among the material averments in the indictment is the statement, 
 that wliether the said defendant had bought the horse therein re- 
 ferred 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 consideration of all the evidence, and in view of the 
 principles of law given you iy 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, Crim. Law, § 994; Bulloch vs. Koon, 4 
 Wen., 531; State -.^?,. Thrift, 30 Lid., 211; Wood vs. Peoj^le, 59 
 K y., 117: State vs. Aikens, 32 la., 403. 
 
 Test of Materiality. — 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 influ- 
 ence the action of the justice or the jury on the trial in any mat- 
 ter affecting the rights of the parties to that suit; and if the jury 
 find, from the evidence, that the alleged testimony could not 
 properly influence the action of the justice, or the jury, in any 
 matter affecting the rights of the 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 v. Shupe, 16 la., 36; 
 State vs. Lavalleij, 9 Mo., 824; 3 Greenl. Ev., § 195.
 
 548 I N S T K U C T I N S 
 
 RAPE. 
 
 Rape Dettiied— Consent Obtained by Tlireats-(i?i/ Statute). — The court 
 instriK'ts the jurv., that nipe is the carnal knowledge of a female, 
 forcibly and against her will, and where threats of i)ersonal vio- 
 lence 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. 
 
 Submission Through Fear. — The court instructs the jury, that 
 where a female submits to sexual intercourse through fear of 
 personal violence, and to avoid the infliction of great personal 
 injurv upon herself, then such carnal intercourse is indictable 
 and punishable as a rape. 
 
 Comphiining to Others. — If the jury believe, from the evidence, 
 tliat the prosecuting witness told her {husband) of the assault, 
 alleged to have been made on her, at the earliest opportunity, 
 then that is a corroborating: circumstances tending to sustain the 
 truth of her statements. State vs. JViles, 47 Vt., 82; Pejfcrliny 
 vs. State, 40 Texas, 48G. 
 
 That in this class of cases the main facts can usually be proved 
 only l)y the woman on whom the assault is connnitted, 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 wit- 
 ness made no outcry, and did not innnediately 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 (»ther evidence, in detei'inining 
 the (juestion of the guilt or iiinoctence of the accused, and 
 whether a rape was in fact committed or not. 
 
 Though the jury may believe, from the evidence, that the 
 prosecuting witness did not tell her {mother) or others of the 
 alleged outrage upon her until, etc.; still, if the juiw believe,
 
 IN CRIMINAL CASES. 549 
 
 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 tlie 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 such 
 injury to others. 
 
 Consent Given. — If the jury believe, from the evidence, that the 
 prosecuting witness, L. X., was a female above the age of {ten) 
 years at the time of the alleged offense, then she was capable in 
 law of giving her consent to any carnal knowledge of her by the 
 defendant ; and before you can find the accused guilty, you must 
 l)e satisfied, from the evidence, beyond a reasonable doubt, that 
 lie had carnal knowledge of the said L. X. foj-cibly and against 
 her will. 
 
 Prosecutrix Bound to Resist. — If the jury believe, from the evi- 
 dence, that at the time the rape is alleged to have been com- 
 mitted, the prosecuting witness had it in her power to resist the 
 defendant, and prevent the offense by kicking, striking 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 tend- 
 ing to show that no rape was committed. 
 
 If the jury believe, from the evidence, that the force and re- 
 sist?ance used by the prqsecutrix, and relied upon by the prosecu- 
 tion for a conviction, at the time of the commission of the alleged 
 rape, were so feebly exerted by her as to have invited rather than 
 discouraged the advances of the accused, they may well doubt 
 whether the rape was committed, and, if they do so doubt, they 
 should find the defendant not guilty. People vs. Morrison, 1 
 Parker Crim. R., 625; People vs. Ahhot, 19 Wend., 192; Hull 
 vs. State, 22 Wis., 580; Croghanvs>. State, 22 Wis., 444; State 
 vs. Cross, 12 la., 60.
 
 550 INSTKrCTIOXS 
 
 Power of Resistance not Overcome by Force or Fear. — If the jury 
 believe, from the evidence, that the prosecutrix, at the time of 
 the allei^a'd offense, was a strong, robust woman, and that the 
 defenthmt 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 connnitted; and if they do 
 so doubt, they cannot convict the defendant of that crime. 
 
 That it is a well settled principal of law that when the accuser 
 and the accused are both in the possession of health and strength, 
 and of the ordinai-y amount of physical and mental power, and 
 in circumstances to fully exercise that power, the perpetration 
 of the crime of rape is of diificult, if not impossible occurrence. 
 
 Contact of Sexual Organs \eccssary. — The court further instructs 
 the jurv, 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 chai-ged, 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. 
 
 Character of the Woman may he Shown. — The jury are instructed, 
 that in prosecutions of this kind the character of the woman 
 may be called in question, and if the jury believe, from the evi- 
 dence, that the prosecuting witness is a woman of bad fame or 
 evil repute, they may take this fact into consideration, together 
 with all the other evidence in the case, in determining the 
 amount of credit to which her testimony may be entitled. 
 
 Character of Prosecutrix no Defense. — All persons are entitled to 
 equal protection before the law ; aiul it matters not what may 
 have been the previous character of a woman, she cannot be as- 
 saulted with impunity ; and where the law does not discriminate, 
 you 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 tlie evidence, that de- 
 fendant made an assault upon A. 15., and that said assault was
 
 IN CRIMINAL CASES. 551 
 
 committed with intent to commit a rape as charged in the indict- 
 ment, you should find the defendant guilty. Pefferling vs. The 
 State, 50 Texas, 486. 
 
 No Oiitery Made. — If the jury believe, from the evidence, 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 connection with her> 
 these facts will tend to raise a presumption that no rape was 
 committed upon her at the time. 
 
 Tlie court instructs the jury, that if they believe, from the 
 evidence, that the prosecuting witness was above {teji) years of 
 age at the time of the alleged offense, then before the defendant 
 can be lawfully convicted of the crime of rape, the jury must 
 believe, beyond a reasonable doubt, that the defendant had 
 carnal connection with the said witness, forcibly and against her 
 will. 
 
 Wliat Constitutes an Assault With Intent, Etc. — The conrt instructs 
 the jury, that to constitute the crime of an assault with an intent 
 to commit a rape upon a female above the age of {ten) years, there 
 must be an assault on the person of the female, with the intent, 
 forcibly and against her will, to ravish and have carnal connec- 
 tion with her, coupled with an apparent present ability to per- 
 petrate the offense. 
 
 That before a person can be convicted of an assault, with the 
 intent to commit a rape upon a female above the age of {ten) 
 years, such assault, such intent, and such apparent present ability 
 must all appear, from the evidence, beyond a reasonable doubt. 
 
 Assault With Intent, Etc. — The court instructs the jury, that in 
 order to warrant a conviction for an assault with an intent to 
 commit a i-aj)e, the jury must believe, from tlic evidence, that if 
 the defendant took hold of the prosecuting witness, or otherwise 
 assaulted her, that he intended at the time to have connection 
 with her, forcibly and against her will ; it is not enough that the 
 defendant desired to have connection with her, but he must have 
 intended to have it by force, against her will.
 
 552 INSTKUCTIONS 
 
 Reasonable Doulif. — If, iroin tlic; evidence, tlie jury entertain a 
 reasonable (Ktuhr that the defendant did assanlt the prosecutrix, 
 in manner and form as char<red in the indictment, with the 
 intent tog-ratify his passions on her person, by force, and against 
 her \\\\\, then they must ae(|uit the defendant. 
 
 Charge «>f Rape and Assault With Intent, Ete. — If the jury l)elieve, 
 from the evidence, l)eyond a reasonaljle d()u1)t, that the defend- 
 ant is guilty, in manner and form as charged in either count of 
 the indictment, then the jury will so lind, by their verdict, 
 stating upon which count they find the defendant guilty. 
 
 ROBBERY. 
 
 Robbery Deflned. — The court instructs the ]ury, 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. 
 
 Facts Constituting Robbery. — If the jury believe, from the evi- 
 dence, beyond a reasonable doubt, that scmuc 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 
 l>ills described in the indicjtment in this case, and that such notes 
 or bills were genuine, and of some value; and further, that one 
 C. D. requested the said A. V>. to loan liim some money, and 
 that thereupon the said A. B. took out his said treasury notes or 
 bank bills for the purpose of making such loan; and further, 
 that the said defendant tlien grabbed the said money and forcibly 
 took the same from the person of the said A. B., and then ran 
 away with said money, with the intention of stealing the same, 
 this would constitute robbery on the part of the defendant, and 
 the jury sliould find him guilty, in manncu" and form as charged 
 in the indictment, itoscoe's Crim. Evi., 81)3. 
 
 The jury are instructed, that to constitute the crime of robl)ery, 
 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.
 
 IN CRIMINAL CASES. 553 
 
 Tliat to constitute the crime of robhery 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 his pres- 
 ence, 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. 
 
 Taking Must be by Force or Fear. — That to justify a verdict of 
 guilty of robbery, in manner and form as charged in the indict- 
 ment, it must appear, from the evidence, to the satisfaction of 
 the jury, beyond a reasonable doubt, that some one or more of 
 the treasury notes, or l)ank bills, described in the indictment, 
 were taken from the person or from the immediate j)resence 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. 
 
 Property Must be Proved, as Charged. — In order to. convict the 
 defendant on the charge of robbery, the people must prove, 
 beyond a reasonal)le doubt, that the bills or treasury notes men- 
 tioned in the indictment, or some of them, were feloniously, and 
 against the will of the said A. B., taken from his person or from 
 his immediate presence and possession, in manner and form as 
 charged in the indictment; and unless this has been so proved, 
 the jury should find tlic defendant not guilty of the charge of 
 robbery. 
 
 Verdict May be for Larceny. — If, in view of all the evidence in 
 this case, the jury entertain any reasonable doubt as to whether 
 the defendant obtained the goods in question from the posses- 
 sion of the plaintiff by force or intimidation, but do believe, 
 from the evidence, beyond a reasonable doubt, that the defend- 
 ant feloniously took the property in question from the possession 
 of the plaintiff by stealth or by fraud, with intent to steal the 
 same, in manner and form as charged in the indictment, then 
 the jury may find the defendant guilty of the crime of larceny. 
 
 Note.— The other instructions on a charge of robbery are, in general, 
 the same as those iu larcuuy.
 
 554 INSTRUCTIONS 
 
 SELLING LIQUOR WITHOUT A LICENSE. 
 
 What Coiistitiitos the OJrciiso. — The court instructs the jury, that 
 in order to lind 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 {eighteen) months t)efore the day of, etc., at and within 
 the county of W., sold or gave away intoxicating liquors in less 
 quantities than, etc., the said defcnduiit not having a license to 
 sell the same. It is not necessary to pi-ove that the sale or giving 
 away was on the day laid in the indictment, nor that the defend- 
 ant himself actually dealt out the liquor. 
 
 Burden of Proof as to License. — If the jury believe, from the 
 evidence, beyond a rcasonal)le doubt, that the defendant by him- 
 self, agent or servant, made the sales, as charged in the indict- 
 ment, then it is not necessary for the people to show, by j)roof 
 in the first instance, that he had no license to sell intoxicating 
 liquors. That is a matter of defense, and should be proved by 
 the defendant if he had such license. 
 
 If the jury believe, from the evidence, beyond a reasonable 
 doubt, that the defendant, either as principal or as clerk, servant 
 or bar-tender, sold or gave away intoxicating liquor in less quan- 
 tity than, etc., within this county, and within {eighteen) months 
 before the finding of this indictment, without having first ol)- 
 tained a license therefor, as charged 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 per- 
 son, 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 defend- 
 ant guilty upon as many of the counts of the indictment as there 
 are of such sales or giving away of licpior so proven. 
 
 Sales by Servant or Employj'. — If the jury believe, from the evi- 
 dence, beyond a reasonable doubt, that the defendant was keep-
 
 IN CRIMINAL CASES. 655 
 
 ing a saloon, at the time in qnestion, at S., in this comity, and 
 that the witnesses who have testified 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-tendei-; pro- 
 vided, 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 
 evidence to the contrary, the presumption of law would be that 
 the liquors so obtained were sold by the defendant, either by 
 himself, his agent or servant. 
 
 The jury are instructed, that in this case it is not indispensa- 
 ble for the people to show that the defendant himself actually 
 sold or furnished the liquors in question to {the witnesses). It 
 is sufficient, 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 indict- 
 ment, and that at the time the defendant had no license to sell 
 intoxicating liquors. 
 
 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 crimi- 
 nally responsible for the act. Lathrop vs. 8tate 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 busi- 
 ness 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 defendant had instructed 
 the said agent or servant, in good faith, not to sell or give away 
 intoxicating liquors, and with a hojia fide intent to have such 
 instructions obeyed ; and, further, that the said W., in selling or
 
 556 INSTRUCTION 
 
 givinu^ uway said liquors, was actiiii;' in violation of said iiislnic- 
 tioiis and ai^-ainst the wishes of the defendant, then the jury 
 should tind the del'endant not <;-uilty of the sale so made. 
 
 Cliarge Must be ft-oved as Alleged. — The jui'V are instructed, that 
 the erinie eharged against tlu; defendant in tlu^ indictment in 
 this case, is that of having sold intoxicating li(|uors witlK)ut a 
 license to sell the same; and nnless the prosecution has proved 
 some one or more of the sales charged in the indictment, heyond 
 a reasonable doubt, the jury shoidd lind the defendant not 
 guilty. 
 
 Unless the jnry believe, from the evidence, beyond a reason- 
 al)le doubt, that the defendant made some one or more of the 
 sales charged against him, either as principal, agent, clerk or 
 servant, within {eighteen) months before the finding of the in- 
 dictment in this case, then the jury nmst find the defendant not 
 guilty. 
 
 Sales by Alleged Agent— Agency Must be Prored. — Although the jury 
 may believe, from the evidence, that one A. B., at the time and 
 place alleged, did unlawfully sell intoxicating liquors; still, un- 
 less the prosecution have proved l)y evidence so as to satisfy the 
 jury, beyond any reasonable doul)t, 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 jui-y should lind the defendant not guilty. 
 
 Single Transaction One Offense. — The jury are instructed, that 
 where two or more glasses of intoxicating li(pior are called for 
 ])y one person, and are sold at one time as part of the same 
 transaction, and all paid for by the same pei'son, such transac- 
 tion constitutes but one selling within the meaning of the law 
 undci- which this prosecution is brought. 
 
 Sale to Minors If the jury l)elieve, fi'om the evidence, beyond 
 
 a reasonaide doubt, that the defendant by himself, agent or serv- 
 ant, within {ei(/htecn) months before the finding of the indict- 
 ment in this case, within this county, sold or gave away any in- 
 toxicating liquor to A. B., and that at that time the said A. B.
 
 IN CRIMINAL CASES. 557 
 
 was under the age of twenty-one years; 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. 
 
 Burden of Proof as to Written Order. — The jury are instructed, 
 that all that is necessary for the prosecution to prove, in order 
 to warrant a conviction in this case, is to satisfy 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 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 parents, 
 guardian or family physicians authorizing a sale to a minor, is 
 a matter of defense, and if the people have 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 be- 
 lieve, from the evidence, that at the time of such sale he had 
 such written order. 
 
 Knowledge of Minority Immaterijil. — The jury are instructed, that 
 if they believe, from the evidence, that the defendant by him- 
 self, his agent or servant, sold or gave intoxicating 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 de- 
 ceived in regard to the age of the said minor. A person engaged 
 in the business of selling intoxicating 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. 
 Harffield, 24 Wis., 60 ; Com. vs. Emmons, 98 Mass., 6 ; 3 Greenl. 
 Ev., § 21.
 
 558 iNSTRUcnoNS 
 
 Selling: to a Person in the Habit, Etc. — The court instructs tlie jurv^ 
 that by the hiws of this state it is unlawful for any person, by 
 liiinself, or by his a^-ent or servant, to sell or give intoxicating 
 liquor to a person wlien he is intoxicated, or to a person who is 
 in the habit of getting intoxicated. 
 
 The jury are instructed, that if they l)elieve, from the evidence, 
 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 tind the defendant guilty. 
 
 Meaning of the Words "in the Habit of dietting Intoxicated." — The 
 
 court further instructs tlie jury, tliat in giving a construction to 
 the statute under which this indictment Avas 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 
 convei'sation. 
 
 The jury are instructed, that if they believe, from the evi- 
 dence, 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 
 defendant knew or did not know that the said A. B. was a person 
 in the hal)it of getting intoxicated. A person engaged in the 
 business of selling intoxicating di-inks, selling to a person who is 
 in the habit of getting intoxicated, sells at his peril, and he is 
 equally guilty M'hether he does or does not know the habits of 
 the person to whom he is selling. 
 
 Habit 3Iiist Exist at tlie Time, Etc. — The jury are instructed, that 
 although they may believe, from the evidence, beyond a reason- 
 able doubt, that the said A. B. was, at one time, addicted to the 
 use of intoxicatini;' liquor so as to be in tlie habit of jrettinir in- 
 toxicated; still, if the jm-y furtlu-r lind, from the evidence, that 
 ])eforc the time of the alleged sale in questic^n in this suit the 
 said A. B. had I'eformed, or partially refoi'ined, his habits in
 
 ""^ ' IN CRIMINAL CASES. 559 
 
 that respect, and was not, at the time in question, in the habit 
 of getting intoxicated, then the jury shoukl 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 the said A. B. intoxicating liq- 
 uors, 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. 
 
 In the Habit of Drinking, Not Enough. — The jury are instructed, 
 that it is not enough to warrant a conviction in this case; that it 
 shall appear, from the evidence, beyond a reasonable doubt, that 
 the said A. B. was a person in the ha1)it of drinking intoxicat- 
 ing liquors at the time in question ; it must appear not only that 
 he was in the habit of drinking intoxicating liquors, but that he 
 was, at the time, drinking them to such an excess as to be in the 
 habit of getting intoxicated.
 
 ITsTDEX. 
 
 Account Stated. page. 
 
 Need not be in Express Terms 41) 
 
 Settlement Presumed to Include all Items 4!) 
 
 Can only be Opened for Fraud or Mistake 41) 
 
 If Kendered and not Objected to, is Admitted 50, 140 
 
 May be Opened for Fraud or Mistake 51 
 
 Receipt may be Contradicted 51 
 
 Receipt Prima Facie correct 51 
 
 Acceptance op Wokk— «See Work and Labor. 
 
 Accidents. 
 
 Carrier not an Insurer ajrainst 62 
 
 Inevitable Accident, -wiiat 67 
 
 Injuries from 79 
 
 Injuries from Accident and Negligence 245, 26S 
 
 Accomplice. 
 
 Testimony of 4S0 
 
 Act of God. 
 
 What is Meant by 6G-8t) 
 
 What is not 67 
 
 Common Carrier not Liable for Loss occasioned by, etc 66 
 
 Carrier must use reasonable care to avoid Injury by 07 
 
 Adverse Possession — See Possession. 
 
 Admissions. 
 
 Verbal, How Weighed 40 
 
 All to be Considered together 41, 477 
 
 Jury may Believe Part and Reject Part 41 
 
 In Affidavit for Continuance 43 
 
 When Party not Estopped by 42 
 
 Affidavit. 
 
 For Continuance 43 
 
 Agency — See Principal and Agent. 
 
 Aiders, Abettors, Etc. 
 
 In Trespass 380, 398 
 
 In Criminal Cases. 
 
 Accessory Defined 483 
 
 Aiding, Advising, Etc., May be by Words or Acts 484 
 
 Need not be by Express Agreement 484 
 
 Aiding or Abetting Assault 484 
 
 Aiding or Abetting Murder 485 
 
 Aiding or Abetting Burglary 48G
 
 11 INDEX. 
 
 In Criminal Casefi, {Conliniied). 
 
 Advising and EneouraKinfr, not being Present 4S6 
 
 Present, not Aiding or Aln;tting 48(5 
 
 One or more may bo found Guilty 4SG 
 
 Aliui, Defense ov — Sec Burnhinj. 
 
 Alteking Written Instruments. 
 
 Material Alteration Renders Void 52 
 
 Alteration Adopted by Maker 52 
 
 If not Material does not llender Void 52 
 
 Alterat ion Presumed to be Made after Execution 53 
 
 Ko Presumption of Law as to when made 53 
 
 Animals. 
 
 Trespass by Domestic Animals. — See Trespass. 
 
 Application of Payments. 
 
 Debtor may Direct, if he does not, Creditor may 54 
 
 "When neither Debtor nor Creditor makes an Application, then 
 
 the Law will make it 55 
 
 Creditor has no Eight to Disregard Directions of the Debtor 54 
 
 If Debtor makes Application, Creditor can not Change 54 
 
 The Law will apply on the Debt first due 55 
 
 ASBAVLT. 
 
 Assault and Assault and Battery Defined 379 
 
 "With Intent to Commit Rape 551 
 
 Willi Intent to Commit Murder. 
 
 Assault Defined 4H7 
 
 Must be such as would be Murder if Death had ensued 4.-'7 
 
 Doubt as to Intent 4H7 
 
 Presume to Intend Natural Consequences, etc 487 
 
 Reckless or Wanton Injury 4SH 
 
 Facts showing Deliberation 488 
 
 Intent may be Proved by Circumstances 488 
 
 Intent must Appear 488 
 
 Intent to Kill must e.xist 4^!> 
 
 Blow in Heat of Passion 4;K) 
 
 Incapable of forming Intent from Drunkenness 4!)0 
 
 Must b(^ Proved beyond Reasonable Doubt 4!i! 
 
 Every Matci-ial Allegation must be Proved 4!n 
 
 Verdict may be for Assault with Deadly Weapon 491 
 
 With Deadly Wea})on, Etc. 
 
 Assault with a Knife Charged 492 
 
 Proof of Instrument of the same kind 492 
 
 What Constitutes the Crime! 492 
 
 What Necessary to Prove 493 
 
 No Crime without Intent 4!»3 
 
 Presumption of Intent may be Rebutted 494 
 
 Iimocence Presumed 494 
 
 Deadly Weapon Defined 494 
 
 Assignee of Commercial Paper. — iJtc XcjoUuble Instruments.
 
 INDEX, 111 
 
 Attachment — plea in abatement to affidavit. 
 
 About to Depart from the State ,...,. 55 
 
 What is not a Departing from the State 56 
 
 About to Depart from the State — how proved 56 
 
 Intent to Depart— how shown 57 
 
 On the Ground of Fraud 57 
 
 The Fraud must be Proven by a Preponderence of the Evidence 57 
 
 Good Faith Presumed = 57 
 
 Attorney. 
 
 Statements of, to Jury 44 
 
 As Witness 45 
 
 Statements of Prosecuting Attorney 481 
 
 Baggage. — See Common Carrier. 
 
 Bills of Lading. 
 
 Implies what Contract 73 
 
 Not Conclusive 73 
 
 Building. 
 
 W^hen Personal Property 356 
 
 Burden of Proof. 
 
 Is on the Party holding the Affirmative 38 
 
 Breach of Contract '^^ 
 
 In Divorce 114 
 
 In Ejectment !-•> 
 
 Statute of Limitation 126 
 
 In Forcible, Entry, etc 145 
 
 Under Dram Shop Act 184 
 
 In Malicious Prosecution 202, 205 
 
 In Malpractice 213 
 
 Failure or Want of Consideration 318 
 
 Contesting Will 434 
 
 Burglary. 
 
 What Constitutes 495 
 
 Prima Facie case of 495 
 
 Intent Charged must be proved 49.") 
 
 What Constitutes a Breaking 496 
 
 What Constitutes an Entry 496 
 
 May be found Guilty of Larceny 497 
 
 Proof of Identity. 
 
 Must be Proved beyond Reasonable Doubt 497 
 
 Doubt as to Defendant or some one else 497-498, 517 
 
 By Comparison of Tracks 498 
 
 Alibi. 
 
 Legitimate Defense 499 
 
 Need not be Proved beyond a Eeasonable Doubt 499 
 
 Proof of Good Character. 
 
 Good Character Presumed 500 
 
 Former Good Character 500 
 
 Omission to Prove 501 
 
 Effect of 501
 
 IV I N I) K X . 
 
 Proof of Good Character {Continued). 
 
 Always Proper 502 
 
 Guilt notwithstandiu}? 502 
 
 Care and Diligence. 
 
 Onliiiary Care and Diligence, what 71 
 
 Reasonable Care and Caution, what 245 
 
 Must be Proportionate to Known Danj^i^r 245, 285 
 
 Reasonable Care Required 254 
 
 PhiinUrt" must Exereist; Reasonable Care 255 
 
 {See Negligence by Railroad Companiea.) 
 
 Character. 
 
 Good, Presumed 500 
 
 Proof of Good — See Burglary. 
 
 Chattel, Mortgage. — See Fraud against Creditors. 
 
 Children. 
 
 Father Entitled to Earnings of Minor 220, 293 
 
 Contributory Negligence of 29 1-293 
 
 Goods furnished Minor Child 339 
 
 Father may Emancipate Minor Child 463 
 
 Minor can Disaffirm Contract, when 4(i3 
 
 Circumstantial Evidence. — See Evidence. 
 
 Commission Men. — See Factors or Commission Men. 
 
 Common Carriers — Of Passengers and Baggage. 
 
 Common Carrier Defined 58 
 
 Injury prima facie Evidence of Negligence 58 
 
 Degree of Care required of the Carrier 59-61 
 
 Degree of Care required of the Passenger <il 
 
 Passenger takes no Risks but those necessarily incident to the 
 
 Mode of Conveyance 60 
 
 Passenger takes all Risks necessarily incident to the Mode of 
 
 Conveyance C:; 
 
 Jumping from the Cars not Negligenc(?, when 61 
 
 Jumping from the (!ars Neglig(mce, when 6i 
 
 Not an Insurer against .\ccidont (i2 
 
 Liability for Baggag(> 6;j 
 
 If a Trunk contains Arlieles of special value Carrier, should !>(> 
 
 notified 6:! 
 
 Not bound to Inquire as to the Contents of a Trunk (i4- 
 
 Placing Valuabl<!s in the hands of, as Baggage is a Fraud 6 4 
 
 Liability for Baggage terminates when (it 
 
 Of Goods. 
 
 Who is a Common Cairier 65 
 
 Liability of Comm<m Carrier 65 
 
 Law of the State where the Goods are delivered, governs 65 
 
 Liable for all Loss exr-ept by Act of God, etc 66 
 
 What is meant b" Act of God 66 
 
 What is not an Act of God ''.T 
 
 Inevitable Accident, what 67
 
 INDEX. V 
 
 Of Goods {Continued). 
 
 Must use Reasonable Care to Avoid Injury by Act of God 67 
 
 "Written Receipt not required t)7 
 
 Wlien liability of Carrier commences t>8 
 
 Liability Continues how long 68 
 
 If Goods are not Delivered to Consignee they must be Stored. . . 68 
 Railroad Companies are not Bound to Deliver to Consignee Per- 
 sonally 69 
 
 Duty and Liability of Express Companies 69-70 
 
 Care Required of a Warehouseman 70 
 
 What is Ordinary Diligence and Care 71 
 
 Must Carry within a Reasonable Time , 71 
 
 First Carrier Liable for Loss 71 
 
 Receipt prima facie Evidence of Goods in good order 72 
 
 What Contract Bill of Lading Implies 1'-'> 
 
 Bill of Lading not Conclusive of Condition 73 
 
 Carrier does not Insure Condition of 7;5 
 
 Can only restrict Common Law Liabilities by contract 74 
 
 Legal duty of, Imposed by Law 74 
 
 Exemption Clause in Receipt not Binding 74 
 
 Exemption Clause Binding if agreed to 74 
 
 Shipper will be Presumed to Agree to Exemption Clause, when . 75 
 
 Burden on Carrier to Show Loss within Exemption 75 
 
 Liability not Limited by Notice 76 
 
 Receipt Evidence of Exemption 76 
 
 Must Ex(!rcise Reasonable Care to prevent Loss within Exemption 7(> 
 
 Shipper Bound by Receipt, when 77 
 
 Shipper not Bound by Notice printed on Receipt 77 
 
 Cannot Restrict Liability arising from Negligence 77 
 
 Of Live Slock. 
 
 Duties and Liabilities of 78 
 
 What Care Required of 78 
 
 Injuries Without Carriers Fault 79 
 
 Care Required of Carriers of Hogs 79 
 
 Degree of Care Required to Avoid Delay 80 
 
 Suit by Carrier for Freight and Charges 80 
 
 Carrier's Lien 81 
 
 Composition Ageeement. 
 
 Party not Bound by Offer to Compromise 42, 94, 466 
 
 Condonation — See Divorce. 
 
 Confessions in Ckiminal Cases — See Evidence. 
 
 Consideration — See Contract. 
 
 Conspiracy. 
 
 Defined 503 
 
 Usually Proved by Circumstances 503 
 
 Proof of Formal Agreement not Necessary 503 
 
 Who are Deemed Guilty 504 
 
 No Overt Act Necessary 504 
 
 Contra, by Statute 504 
 
 Common Design or Purpose Must be Proved 505
 
 VI INDEX. 
 
 CONTINTAXCE. 
 
 Allidavit for . . 43 
 
 Contracts. 
 
 Capacity to Contract 81 
 
 Drunkenness as a Ground of Avoidance 82 
 
 Fraud and Circumvention in Procuring Execution of 83, 150 
 
 Signature Procured by Fraud 83 
 
 "What Constitutes ^3 
 
 Tlie Minds of the Parties Must Meet 83 
 
 Need not be any Formal Acceptance S-l 
 
 Of Sale, What is 84 
 
 Consideration Necessary 84 
 
 What is Consideration 84 
 
 One Promise is a Good Consideration for Another Promise 84 
 
 New Promise to Perform Legal Obligation 85 
 
 "When Promise to Kcceive Part Payment is Without Consideration 85 
 
 Partial Payment by Stranger, etc 85 
 
 Construction of 86 
 
 Performed as Modified by Parol 86, 406 
 
 Right to Rescind for Fraud 86 
 
 Right to Rescind for Mistake of Fact 87 
 
 Notice of Intention to Rescind Must be Given 87 
 
 Rescinding by Mutual Consent 87 
 
 Rescinding for Non-performance 88 
 
 When may Recover for Partial Performance .: 89 
 
 Hardship will not Excuse Non-performance 89 
 
 Act of God will Excuse, wliat is 89 
 
 Burden of Proving Breach of 8'.» 
 
 Made on Sunday are Valid 90 
 
 Made on Sunday not Void but Voidable 90 
 
 Subscription Paper * 92-93 
 
 For Labor, Presumed to Continue, When 404 
 
 Marriage. 
 
 How Proved 90 
 
 No Actual Promise Need be Shown 91 
 
 When Offer to Perform is not Necessary 91 
 
 Unchastity no Defense, Wlicn 91 
 
 Desirability of Party Should Not be Considered by Jury 91 
 
 Breach of Promise, how Proved 92 
 
 Composition Agreement. 
 
 Good Faith Required 94 
 
 Secret Agreement Renders Void as to Others 94 
 
 Sale of Personai. Property. 
 
 Future Delivery 9.") 
 
 No Demand for Delivery Need be Made, When 90 
 
 Only Act of God, etc., will Excuse Non-performance 90 
 
 Plaintiff Must Show Readiness to Perform 96-97 
 
 Measure of Damages -'7 
 
 Tender of Performance '•^'' 
 
 Payment and Delivery Concurrent Acts 97
 
 <l 
 
 INDEX. Vll 
 
 Sale of Peksonal Peoperty (Continued) . 
 
 Option Contract Detined 
 
 Option Contract is Prohibited by Law. 
 
 98 
 
 98 
 
 Custom and Usage Enter Into and Form a Part of, When 98 
 
 CORPOBATIONS. 
 
 Suit against, How to be Tried 40 
 
 Witnesses for, How Regarded 40 
 
 COUST. 
 
 Remarks by in Presence of Jury H 
 
 Ckedibility of Witness — See Witness. 
 
 Custom and Usage. 
 
 Enter Into and Form Part of a Contract 98 
 
 To be Binding Must be Generally Known and Established 98 
 
 Factors are Presumed to Conform to * 99, 134, 137 
 
 (See Factors and Commission Men.) 
 
 Damages — See Measure of Damages. 
 
 Deadly Weapon. 
 
 Defined 494 
 
 Blow with a 508, 509 
 
 Debt on Bond. 
 
 Presumption from Proof of Signature 101 
 
 Sureties Bound by Action of their Principal 102, 104 
 
 Extent of Agents' Authority 104 
 
 What is Proved by the Record in Replevin suit 104 
 
 (See Measure of Damages.) 
 
 Dedication— See Highways. 
 
 Deed. 
 
 Takes effect from time of delivery 115 
 
 What constitutes Delivery 115 
 
 No particular Form or Ceremony necessary 115 
 
 Need not be delivered to the Grantee personally 116 
 
 Must be Both Delivered and Acceptetl 116 
 
 Not Necessary to transfer Adverse Possession 124 
 
 Title to Real Estate can only be Conveyed by 117 
 
 Priority of 118 
 
 By way of Mortgage 119 
 
 Delivery — See Deed. 
 
 Of Official Bond IIG 
 
 Demand and Refusal. 
 
 Demand Need not be Made, when 96 
 
 What Constitutes 100 
 
 No Particular form of Words Necessary 100 
 
 Must be made by Party Authorized, 100 
 
 Demand by Agent 100 
 
 Ground of Refusal Must be Specified 100 
 
 What Essential to a Demand 351 
 
 Evidence of Conversion 407 
 
 When Demand not Necessary in Trover 407
 
 Vin INDEX. 
 
 Departing From the State— .See Attachment. 
 Desertion — See Divorce. 
 DiSTRAixixG Stock— See Replevin. 
 
 DlVORtE. 
 
 Residence and Desertion 105 
 
 Domicile of Husband is that of the Wife lO.i 
 
 Husband has Right to Select the Residence 105 
 
 Abusive Lanf^uage Provocation for Wife leaving 105 
 
 "When Desertion the only Issue 106 
 
 Separation by Mutual Consent 106 
 
 Absence Alone not Proof of Desertion 106 
 
 Desire for Reconciliation after Separation by Mutual Consent. . 107 
 
 Refusal to Become Reconciled Desertion, When 107 
 
 When Refusal to Become Reconciled not Desertion 107 
 
 Adultery as a Ground for lO'J 
 
 Adultery Must be Proved 109 
 
 Adultery Must be Prior to Commencement of Suit for 109 
 
 Extreme and Repeated Cruelty as a Ground for 109 
 
 Drunkenness and Threats 110 
 
 Personal Violence Must be Shown 110 
 
 Acts of Cruelty Must be Repeated 110 
 
 Acts of Cruelty Must be Recent ' Ill 
 
 Reason to Fear Cruelty Must Exist When Bill is Filed 111-112 
 
 Acts of Cruelty Provoked by Complainant 112 
 
 Cruelly Provoked by Refusal to Cohabit 1 13 
 
 Hysteria 113 
 
 Burden of Proof 114 
 
 Condonation 114 
 
 Desertion. 
 
 Grounds of, by Wife ]i)7 
 
 Adultery Excuse for li)7 
 
 Cruelty as an Excuse for . . 108 
 
 Acts of Cruelty must be Apprehended at the Time 109 
 
 Dori5T. 
 
 Reasonable, Defined 481-482 
 
 As to Which of Two or More Persons is Guilty 517 
 
 Drunkenness. 
 
 As Affecting Capacity to Contract 82 
 
 As a Ground of Avoidance of a Contract 82 
 
 Shown in Mitigation in Slander 239 
 
 No Justification in Trespass 384 
 
 As Affecting Testamentary Capacity 440 
 
 Insanity Produced by 440 
 
 As Affecting Intent in Criminal Cases 490, 514 
 
 No Excuse for Crime 525-526 
 
 Duress — .See Xcgotiuble In-flntmenta. 
 
 Ejectment. 
 
 Only Legal Titles Involved IIG
 
 INDEX. iX 
 
 Ejectment {Continued). 
 
 Ono in Possession of Keal Estate presumed to be Owner 117 
 
 Paper Titlt^ shown by Plaintiff 117 
 
 Eight to Possession must be Shown 117 
 
 Title can only be Conveyed by Deed 117 
 
 Title Deduced from a Common Source 1 1 « 
 
 Both Parties Claim under same Person IIM 
 
 Priority of Deeds 118 
 
 Plaintiff's Deed by way of Mortgage 119 
 
 Possession prima facie Evidence of Title 120 
 
 Defendant need not show by what Eiglit he holds Possession 
 
 until Plaintiff has shown Title 120 
 
 First Possessor has the Better Title 120 
 
 Deed from Party in Possession Claiming Title 121 
 
 Estoppel. 
 
 General Kule 130 
 
 Intention Not Essential 131 
 
 Knowingly Permitting Another to Deal with Property as Owner. 131 
 
 Pi,epresentations by the Acts of a Paity 132 
 
 Kepresentation must be Acted on 132 
 
 Must be a Fraudulent Purpose or Result 133 
 
 Injury Must be Shown 133 
 
 Holding Oneself out as Partner 331 
 
 Permitting One to Hold Himself out as Agent 343 
 
 Evidence. 
 
 Preponderance of, how Determined 3G 
 
 Negative, What is Not 38 
 
 Preponderance of, Sufficient in Suit for Sale of Intoxicating 
 
 Liquors 184^ 
 
 Weight of, a Question of Fact for the Jury 2',) 
 
 Weight of— Degree of Proof in Criminal Cases. 
 
 Presumption in Favor of Innocence 471 
 
 Every Allegation Must be Proved Beyond a Reasonable Doubt. . 471 
 
 Prisoner Entitled to Every Reasonable Hypothesis 471 
 
 Probability of Guilt not Sufficient 472 
 
 Preponderance of, not Sufficient 472 
 
 Guilt Must be Proved Beyond a Reasonable Doubt 473 
 
 Jury Should Consider all the Evidence 473 
 
 Better that many Guilty Persons Escape, etc 473 
 
 Jury Should Endeavor to Reconcile 473 
 
 Want of Motive 474 
 
 Accused Need Not Testify 474 
 
 Failure to Testify no Presumption Against, etc 474 
 
 Testimony of Accused to be Weighed by the Jury 474-475 
 
 Circumstanliu I. 
 
 Competent, etc 475 
 
 Deflned 475 
 
 Must all be Consistent wnth Guilt, etc , 475 
 
 Must all be Inconsistent with Innocence 475 
 
 Circumstances Pointing to Some Other Person 51 G
 
 X IXDEX. 
 
 Circwnsla7iiial (Conlinued) . 
 
 Deforce uf Certainty Roquiroil from 47G 
 
 Ono Fact Inconsistent witli Guilt 477 
 
 Direct Evidence Not Required 477 
 
 Must Exclude Every Reasonable Hypothesis of Innocence 516 
 
 AdmLssion-s and Confensio^is in Criminal Caaes. 
 
 Must all be Taken Together 4 77 
 
 Must bo Treated Like Other Evidence 478 
 
 Out of Court be Received with Caution 478 
 
 Effect when Corroborated 478-479 
 
 "When Sufficient to Convict 471) 
 
 T(>stiniony of Accomplice to be Received with Caution 480 
 
 Fabricated Testimony Explained 480 
 
 Contradictory and Inconsist(>nt Statements. . . 480 
 
 One Witness Sufficient, when 481 
 
 Crime Charged Must be Proved 481 
 
 Statement of Prosecuting Attorney not Based on Evidence 481 
 
 Reasonable Doubt Defined 481, 482 
 
 Rule of Reasonable Doubt does not Extend to Each Link in the 
 
 Chain of Testimony 483 
 
 Execution. 
 
 Conclusive, when 351 
 
 Indorsement Conclusive, when 352 
 
 Justification Under 352 
 
 Interest of Joint Owner Taken on 352 
 
 Lien of by Statute 354 
 
 Factors or Commission Men. 
 
 Are Agents 134 
 
 Good Faith Required 134 
 
 Degree of Care Required 134 
 
 May Conform to Rules of the Market 13 1-136 
 
 ]\Iust Conform to Rules and Usages 136 
 
 Margins 137 
 
 Factors' Lien 138 
 
 Right to Sell "Without Permission 138 
 
 When may not Sell 139 
 
 Selling Without Orders 139 
 
 Account Stated 140 
 
 F.\LSE Imprisonment. — See Trespass. 
 
 Fences. 
 
 Temporary Line Fence 124 
 
 Line Fence Agreed Upon 125 
 
 Enclosed by Natural Objects 128 
 
 Railroad Track to be Fenced 269 
 
 What a Sufficient Fence 401 
 
 Owner Bound to Fence Against What — See Trespass. 
 
 Forcible Entry and Detainer. 
 
 Title not Involved 140 
 
 Entry by Force not Necessary 141
 
 INDEX. XI 
 
 Forcible Entry and Detainer (Continued) . 
 
 The Keal Question in Issue 142 
 
 Possession by Tenant 142 
 
 Wliat Constitutes Possession 143 
 
 Possession Must be Actual and Eeal 143 
 
 What not Possession 144 
 
 Burden of Proof 145 
 
 Fraud. 
 
 Is Never Presumed Without Proof 57 
 
 Kifflit to Rescind Contract for 86 
 
 Of Partner Binds the Firm, When 335 
 
 As Against Creditors. 
 
 Sale with Intent to Defraud Creditors 158, 354 
 
 Fraudulent, Though for a Good Consideration, When 158 
 
 Must be a Change of Possession 158 
 
 Eetaining Possession After Sale, Fraud per se 159-160 
 
 Must be Outward Visible Signs of Change of Possession 159-160 
 
 Priority of Possession Under Execution 161 
 
 Retaining Possession — Presumptive Evidence of Fraud 161 
 
 Good Faith a Question for the Jury, When • 162 
 
 Possession Evidence of Ownership 162 
 
 Possession not Evidence of Ownership, When 163 
 
 Only Such Cliange Required as Can Reasonably be Made 163-164 
 
 Property in Possession of Third Person . 164 
 
 Symbolical Delivery 164 
 
 Possession may be by Agent 164 
 
 Possession of Growing Crops , 164 
 
 Temporary Possession of Vendee 165 
 
 Temporary Possession of Vendor 355 
 
 Person Indebted may Sell his Property 165 
 
 Debtor may Transfer Property in Payment of Debts 166 
 
 Sale on Credit 167 
 
 Debtor may Prefer Creditor 167 
 
 Preferring Wife as Creditor . ' 167 
 
 Purchaser must be Chargeable with Notice of Fraud 167-168 
 
 Creditor not Affected by Knowledge, When 168 
 
 What is Sufficient Notice of Fraudulent Intent 169 
 
 Honest Intent Presumed 169 
 
 Chattel Mortgages as Against Judgment Creditors. 
 
 Good Between the Parties Without Recording 169 
 
 As to Creditors must be Aclinowledged and Recorded 170 
 
 Mortgagee must see to Statutory Requirements 1 70 
 
 Acknowledgment and Recording, How Proved 170 
 
 Mortgagee must Take Possession, When 171 
 
 Fraudulent Mortgage Void 171 
 
 Note for More than Amount Due '. 172 
 
 Mortgage of Stock of Goods 172 
 
 Both Parties must Intend the Fraud 172 
 
 Good Faith, How Proved 172 
 
 Intent to Defraud must Exist at the Time 173
 
 XU INDEX. 
 
 Chattel Mortgages (Continued). 
 
 SubstMiueiit Acts will not Render Void 173 
 
 Sales by Mort/Lrni^'or 173 
 
 Mortgajje to Secure Future Advances 173 
 
 Possession by Mortgaj^ee 17-t 
 
 Possession by Mortsajjor after Default 174 
 
 Fraud and Circumvention in Procurinj^ Contract 83 
 
 Fraud and Circumvention in Procuring Note — See Negotiable 
 Instruments. 
 
 Fi:AUP AND Deceit. 
 
 False Representations 14') 
 
 Proof of Fraud 145 
 
 Degree of Proof Required 146 
 
 Representations must be of the Past or Present 146 
 
 Must be Designed to Injure 147 
 
 Injury must be Shown 117 
 
 Scienter must Appear from the Evidence 147 
 
 Expression of Opinion 147 
 
 Each may Exalt Value of his own Property 148 
 
 All Statements as to Value of Property 148 
 
 Representation as to the Law 14 S 
 
 Mere Silence is not Fraud, When 14y 
 
 Purchaser Knowing Himself Insolvent 149 
 
 Purchase with Intent not to Pay 14 'J 
 
 Drawing Check Without Funds 14'.) 
 
 Sale of Personal Property — Concealed Defects 150 
 
 Contract Procured by Fraud 83, 150 
 
 Stating as True when a.Party has no Reason for Belief 150 
 
 Suit for Fraud — What must be Proved 151 
 
 Action not on the Contract 152 
 
 Co-Defendant not G uilty 152 
 
 Sales Procured by Fraud 152 
 
 Right to Rescind 153 
 
 Sale not Void but Voidable 153 
 
 Contract may be Ratified, How 153 
 
 What is Ratification 154 
 
 Innocent Purchaser from Fraudulent Vendee 154 
 
 Purchaser Without Notice 155 
 
 Goods Transferred in Payment of Debt 155 
 
 Attaching or Execution Creditor 156 
 
 Purchaser must Exercise Reasonable Caution 156 
 
 Every False Affirmation does not Amount to Fraud 157 
 
 A Party only Bound to use Reasonable Caution 157 
 
 Shipping Valuables as Baggage i-; a Fraud on the Carrier 64 
 
 Must be Discovered Before the Statute of Limitations begins to 
 
 Run 202 
 
 Good Faith, Presumed 67 
 
 Growing Crops. 
 
 Possession of 104 
 
 Title in 195-196
 
 INDEX. Xlll 
 
 Growing Crops (Coniinued). 
 
 When Personal Property 355 
 
 Levy on and Taking Possession So.'j 
 
 Officer Selling 3y« 
 
 Guarantor. — See Negotiable Instruments. 
 
 Highways. 
 
 How Created 175 
 
 Presumption from Laying Out and Working 175 
 
 Existence of, How Proved 175 
 
 Condemnation, How Proved 17(J 
 
 Actual Location must Prevail 176 
 
 Monuments Control Courses and Distances 17(5 
 
 What is Prima Facie Evidence of Location 177 
 
 Collision on 265 
 
 Dedication. 
 
 What Constitutes 177 
 
 What is Meant by 177 
 
 Must be Made by Owner 177 
 
 No Particular Ceremony Required 177 
 
 No Specific Time Required 178 
 
 Must be Accepted 178 
 
 Owner must Intend to Dedicate 1 78 
 
 Binding on the Owner and all Claiming Under him 1 7lt 
 
 By Sale of Lots Bounded on Streets 170 
 
 Prescription. 
 
 What is 17!) 
 
 Travel must be Confined to Particular Route 180 
 
 Highway Crossing. — See Negligence by Railroad Companies. 
 
 Homicide. 
 
 Generally HOG 
 
 Murder Defined 50(i 
 
 Express Malice, What 50 (i 
 
 Imphed Malice Defined 507 
 
 Presumption from Killing 607 
 
 Voluntary and Involuntary 506,507 
 
 Blow with a Deadly Weapon 508 
 
 Blow with a Deadly Weapon, no Considerable Provocation 500 
 
 Words no Sufficient Provocation 510 
 
 Party Intends Natural Results of his Acts 510, 521 
 
 Cause of the Death Must be Proved 510 
 
 Wound not Necessarily Fatal 511 
 
 Murder in the First Degree 511 
 
 Murder in the Second Degree 612 
 
 Elements of Murder in First Degree 512 
 
 No Lengtli of Deliberation Required 5 1 ."> 
 
 Premeditated Design 614 
 
 Intoxication Affecting Intent ' 514 
 
 Drunkenness no Excuse for Crime 525-521) 
 
 Murder by Poisoning 515
 
 XIV INDEX. 
 
 Homicide (Continued). 
 
 Death Hastened by Poisoning? 515 
 
 How Proved by Cirouiustantial Evidence r)16 
 
 Must Exclude every Reasonable Hypothesis, etc 516 
 
 Doubt as to w'hicli of Two or More 517 
 
 Maunl(tii{ihl( r. 
 
 Words of Provocation will not lleduce Murder to Manslaughter, 517 
 
 Verdict may be for Manslaughter 518 
 
 Voluntary and Involuntary Defined 511) 
 
 Malice. 
 
 Delined 520 
 
 Presumed, When 520 
 
 Aforethought 520 
 
 Implied, When 521 
 
 Insanity. 
 
 Test of Criminal Responsibility , . . 521 
 
 When not Responsible .' 522 
 
 Different Rules as to Burden of Proof 522 
 
 Reasonable Doubt as to Sanity 522 
 
 Sanity Presumed 523 
 
 Impulse of Passion no Defense 524 
 
 Act must be in Consequence of, etc 524 
 
 Partial 524 
 
 Must be the Efficient Cause 524 
 
 Test of 525 
 
 Self- Defense. 
 
 Danger Need Not be Real 527-528 
 
 Force may be Resisted by Force 52'J 
 
 Assailant Retiring from the Fight 530 
 
 Defense of Habitation 530 
 
 Attack Provoked by Defendant 5:'.l 
 
 Danger Must be Reasonably Apparent 531 
 
 Reasonable Doubt as to Apparent Danger 532 
 
 Husband and Wife — See Married Women. 
 
 Identity, Proof of— See Burglary. 
 
 Impeachment of Witness— See Witness. 
 
 Innocent Purchaser. 
 
 From Fraudulent Vendee 154 
 
 Witliout Notice ].'i,"» 
 
 Taking Note as Security 303 
 
 Taking Note in Payment 303 
 
 Assignee with Notice from Assignee Without 303 
 
 Insanity. 
 
 As Affecting Criminal Responsibility 521-522 
 
 Partial 624 
 
 (Al.HO, see WHIh and Homicide.) 
 
 Instructions. 
 
 Their Form and Requisites 9 
 
 Statute of Illinois 9
 
 INDEX. XV 
 
 Instructions {Continued). 
 
 Statute of Iowa 10 
 
 Statute of Indiana ID 
 
 Statute of Michigan 10 
 
 Statute of Ohio 10 
 
 Statute of Wisconsin 11 
 
 Must be in Writing 11 
 
 Improper for Court to Make Remarks 11 
 
 In Writing may be Waived 12 _ 
 
 Court may Instruct Without Being Asked 12 
 
 Duty of Court to Instruct 12 
 
 Should be Clear, Accurate and Concise 13 
 
 Should not be Argumentative 14 
 
 Should be Confined to Matters of Law 14 
 
 Should not Submit Questions of Law to the Jury 14 
 
 Degree of Care Koquired in a Given Case is a question of Law. . 15 
 
 Abstract Propositions of Law Should Not be Given, When 15 
 
 Should not Ignore Facts Proven 15 
 
 Should not Give Undue Prominence to Portions of the Evidence 1(5 
 
 Should not Give Prominence to Unimportant Facts 1(> 
 
 Should be Given When There is any Evidence, etc 16 
 
 Must not Assume Facts Not Admitted 17 
 
 Facts not Controverted may be Assumed 17 
 
 May Assume what the Law Presumes 18 
 
 When all Material Allegations are Proved 18 
 
 Construction of Contracts ... 18 
 
 Should be Confined to the Issues Being Tried VJ 
 
 Should be Based on the Evidence 20 
 
 One Instruction may be Limited by Others 21 
 
 Should be Considered all Together 21 
 
 Error Will not Always Reverse 21 
 
 Must be Construed in Connection with the Evidence 22 
 
 When Error Will Reverse 22 
 
 Should be Harmonious 22 
 
 Must Require the Jui-y to Believe from the Evidence 23 
 
 Need not be Repeated, When 23 
 
 Instructing as in Case of Non-suit 24 
 
 Error in Admitting Evidence Obviated by 24 
 
 When not Obviated by 24 
 
 Effect of Evidence Limited by 24 
 
 Jury may Come in for Further Instructions 25 
 
 The Giving of Further Instructions is in the Discretion of the 
 
 Court 25 
 
 Court may Limit the Time for 25 
 
 In Criminal Cases, Jury are the Judges of the Law and Facts — 26 
 
 Intent. 
 
 When Material in Trespass 381, 390 
 
 In Criminal Cases — See Assault ivith Intent, etc. 
 
 Felonious Intent — See Larceny. 
 
 Party Presumed to Intend Natural Results of his Acts ., .510, 521
 
 XVI INDEX. 
 
 Intoxicating Liquoks. 
 
 Suit by Wife, Statutory Provisions 181 
 
 Wliat Must be Provod 181 
 
 Derondants Jointly and Severally Liable 182 
 
 Sufliciont if the Liquor Sold Contributed 182 
 
 Owner of Premises not Liable, When 182 
 
 Suit A;rainst Saloon-keeper and Owner of Buildin<; Juintly 183 
 
 Propriety of tlio Law not a Question for the Jury 1S;5 
 
 Burden of Proof, What Must be Proved 184 
 
 Proximate Cause, What 184-185 
 
 New or Intervening: Cause 18(> 
 
 Preponderance of Evidence SulTieient 186 
 
 Good Faith not a Mitigation, When 186 
 
 Verdict Must be Founded on the Evidence 187 
 
 Joint Wkong-Doers. — See Aiders, Abettors, etc. 
 
 Jury. 
 
 Have no Eight to Disregard the Testimony of a Witness Without 
 
 Cause 31 
 
 When may Disregard Testimony of a Witness 32 
 
 Sliould Reconcile the Testimony if Possible :}2 
 
 Weight of Testimony a Question of Fact for the 2:) 
 
 Verdict of, to be Determined by the Evidence Alone 4-t 
 
 May Believe Part of an Admission and lleject Part 41 
 
 Propriety of the Law not a Question for 1S3 
 
 May come in for Further Instructions. 2 J 
 
 In Criminal Cases arc the Judges of the Law and Facts 2(j 
 
 Must Take the Law from the Court 433 
 
 Landlord and Tenant. 
 
 Suit for Rent .. 187 
 
 Occupant Liable for Rent. When— Illinois 188 
 
 Surrender of Premises, How .Effocted 188 
 
 Surrender Must be Assented to'by. Landlord 189 
 
 Eviction from Whole or any Material tart Stops the Rent 18!) 
 
 Forcible Expulsion not Necessary 190 
 
 Acts of Trespass not Eviction 191 
 
 What Constitutes Eviction IDI 
 
 Landlord's Lien for Rent— Illinois , l'.)2 
 
 Levy of Distress Warrant not Necessary to Perfect Lien I;i2 
 
 Lion Against Purchaser from Tenant, When 193 
 
 Tenant Holding Over— Contract Implied I'.i3 
 
 New Contracit Implied, When I'.i4 
 
 Wrongful Holding Over--IIlinols 194 
 
 Tenant can not'Dony Landlord's Tith; 19.5 
 
 Landlord not Bound to Repair 19,') 
 
 Title to Crops— Is in the Tenant 195 
 
 Contra— Title in Both Landlord and Tenant 196 
 
 Larceny. 
 
 Crime Defined 53;] 
 
 Every Material Alleffation Must be Proved 5J3
 
 INDEX. XVU 
 
 Larceny {Continued) . 
 
 Value Must be Proved r)3r, 
 
 Name of Party Injured Must be Proved Ct'.v.', 
 
 Special Property Sufficient •'•--t 
 
 Criminating' Circumstances Proved 5:;! 
 
 Person Having Possession of Property Must be Called as a Wit- 
 ness •''••'■4 
 
 Taking Must be with Felonious Intent 51] J 
 
 Taken Under Claim of Plight 535 
 
 Possession Obtained by Fraud, with Intent 530 
 
 Money must be Proved to be Genuine 537 
 
 Presumption fi'om Possession of Stolen Property 537 
 
 Possession Explained 538 
 
 As Bailee. 
 
 Meaning of the Term 538 
 
 Felonious Intent Necessary 538-539 
 
 Taken with Intent to Repay HimseK 538-539 
 
 Levy of Execution. 
 
 What Constitutes 392 
 
 Invalid, When 393 
 
 Colorable Levy Invalid 393 
 
 Libel. 
 
 Plea of Justification Filed 190 
 
 Malice Presumed, When 197 
 
 Plea of Justification an Aggravation, When 197 
 
 Mitigation of Damages 198 
 
 General Issue Impliedly Admits, etc 198 
 
 Measure of Damages 231 
 
 Lien. 
 
 Of Common Carrier ,.. 81 
 
 Factor's Lien 138 
 
 Of Landlord for Rent— Illinois 192 
 
 Levy of Distress Warrant not Necessary 192 
 
 Landlord's Lien Against Purchaser from Tenant 193 
 
 Of Judgment and Chattel Mortgage 357 
 
 Of Warehouseman 411 
 
 Limitations. 
 
 Statute a Bar, When 199 
 
 Payment a New Promise 199 
 
 When the Statute Begins to Run 199 
 
 Running Accounts 200 
 
 Absence from the State 200 
 
 Debt Revived by New Promise 201 
 
 The Promise Must be a Promise to Pay the Debt 201 
 
 What Amounts to a Promise 20 1 
 
 What is not a Promise 201 
 
 Does not Begin to Run Until Fraud Discovered 202 
 
 Malice. 
 
 How Proved .,.-, 640
 
 XVlll INDEX. 
 
 Malice (Contimied). 
 
 Express, Defined 362, 50G, 520 
 
 Implied, Defined 5ii7 
 
 Implied, AVhen 521 
 
 Aforethoufjht .'>20 
 
 Presumed, "When 520 
 
 Malicious Mischief. 
 
 Crime Defined 540 
 
 Miilice, how Proved 540 
 
 Ownership, how Proved 540 
 
 Ownership Must be Proved as Alleged 540 
 
 Injury Must be Proved as Alleged 54 1 
 
 Malice Must be Proved 541 
 
 Malice Against the Owner Must be Shown 541 
 
 Malicioi's Prosecution. 
 
 What Must be Proved 202 
 
 Want of Probable Cause must be Proved 203 
 
 Charge Must be Wilfully False 203 
 
 Arrest Without Probable Cause 203 
 
 What is Probable Cause 203 
 
 Malice may be Inferred from Want, etc 204 
 
 Burden of Proof on the Plaintiff 20.> 
 
 What is Want of Probable Cause 200 
 
 Want of Probable Cause Cannot be Inferred from Pi-oof of 
 
 Malice 20fi 
 
 Not Necessary that a Crime should have been Committed 2()7 
 
 The Prosecution Must be Ended 2(17 
 
 Discharge by Justice 2().S 
 
 By Advice of Counsel 208-2tH» 
 
 Presumption from Good Character 2o9 
 
 Malpractice. 
 
 Warranty of Skill, etc., Implied 210-212 
 
 Patient Bound to Follow Instructions 212 
 
 Burden of Proof 213 
 
 Ordinary Skill Defined 452 
 
 Married Women. 
 
 May Own, Manage or Convey 214 
 
 May Employ Husband as Agent 215-210 
 
 When Liable for llepairs on House 2 Iti 
 
 Husband May Give to Wife, When 217 
 
 When Proceeds of her Farm Belong to Husband 217-21S 
 
 What not Separate Estate as to Creditors 21{S-211» 
 
 Wife may Give Property to her Husband . . 220 
 
 Husband Entitled to Earnings of Minor Children 22(1 
 
 Work and Labor by— Illinois 220-222 
 
 Husband Liable for Goods Furnished Wife, When 339-2 U) 
 
 Master and Servant. 
 
 Master Liable for Injury to Servant, Wiien 204->29.> 
 
 (See Ncgliyenct by Raihoad Companies.)
 
 INDEX. ^ XIX 
 
 Measuee of Damages. 
 
 Generally How Determined 241 
 
 Death from Negligent Act 222-223 
 
 Death from Intoxication. 
 
 Suit by Widow 224 
 
 Damage can not be Given for Mortification or Mental Suffering 
 
 of Wife 224 
 
 Exemplary Damages 224 
 
 Personal Injury. 
 
 From Defective Sidewalk 253 
 
 Damages May be allowed for Permanent Injury 225-226 
 
 Exemplary Damages in Tort Generally 227 
 
 Fraud and Deceit. 
 
 Not Necessarily Confined to Actual Damage 334 
 
 What is Actual Damage 334 
 
 In Assault. 
 
 Exemplary Damages 227 
 
 Aggravation of Damages 228 
 
 Mitigation of Damages 228, 384 
 
 Exemplary Damages not Allowed, When 228 
 
 Landlord and Tenant. 
 
 Premises Not Occupied— No Eent Paid 229 
 
 In Libel. 
 
 Jury should Consider, What 231 
 
 Filing Plea of Justification an Aggravation of 197 
 
 When Not an Aggravation 197 
 
 Mitigation of 198 
 
 Slander. 
 
 Words Actionable, per se 237 
 
 Damages Presumed, When 238 
 
 Pecuniary Circumstances of Defendant 238 
 
 Words Spoken in Heat of Passion 238 
 
 Drunkenness in Mitigation 239 
 
 Plea of Justification Must be Filed in Good Faith 239 
 
 Exemplary Damages May be Given, When 239-240 
 
 In Siiit on Bond. 
 
 Keplevin 230-231 
 
 In Malpractice. 
 
 Jury Should Consider What 232 
 
 Marriage Contract. 
 
 In Breach of 232-233 
 
 In Fraud and Deceit 234 
 
 Exemplary Damages Defined 242 
 
 Work arid Labor. 
 
 Part Performance 235 
 
 Contract to Deliver — Part Performance 235 
 
 Kefusal to Deliver Personal Property. . • 235-236 
 
 Property Bought for Re-sale 236 
 
 Refusal to Accept Personal Property 237
 
 \K INDKX. 
 
 Common Carriers. 
 
 Loss of Baggage 2-11 
 
 Goods Lost 241 
 
 In Breach of Contract for Fiitur.' Delivery 97 
 
 In Trenpass. 
 
 Good Faith in Mitigation 388 
 
 Exemplary Damages 241, 388, 395 
 
 In Trover. 
 
 ■SVhat Must be Shown to Reduce 234 
 
 Suit by General Owner 412 
 
 By One Having Special Property 412 
 
 By Lien Holder 413 
 
 Against Lien Holder 413 
 
 In Wnrrn7ity. 
 
 On Breach of. 431 
 
 On Entire Contract. 
 
 On Breach of 460 
 
 For Work and Labor 457 
 
 ^Mistake of Fact. 
 
 Eight to Rescind Contract for 87 
 
 Mortgage. 
 
 Deed by Way of 119 
 
 (Chattel Mortoage.—See Fraud as Agaitist Creditors.) 
 
 Motive. 
 
 Want of, in Criminal Cases 474 
 
 MvNiciPAii Corporations. 
 
 Liable for Unsafe Conditions oC Streets, When 242 
 
 Duty Imposed by Law 243, 240 
 
 Duty to Provide Guards and Notice 244 
 
 Streets Include Sidewalks : 244 
 
 Accident and Negligence 24.i 
 
 Reasonable Care and Caution, What 24."> 
 
 Care Must be Proportionate to tiie Known Danger 24.) 
 
 Slight Negligence will not Dcfrat Recovery 24.') 
 
 Degree of Care Required 246 
 
 Negligence of Driver 246 
 
 Not Obliged to Open Streets 246 
 
 Do Not Insure the Safety 247 
 
 Liable for Negligence of Others. When 247-248 
 
 Not Liable for the Negligence of Others, When 248-249 
 
 Defective Sidewalk— Notice of Presumed, When 24D 
 
 Must have Notice Actual or Constructive 2.jO 
 
 Changing Grade of Sireet. 
 
 Injury to Adjoining Property 2.)1 
 
 Liable for Want of Reasonable Caro Only 2.)l-2r)2 
 
 Changing Water Courses 2.');5 
 
 Measure of Damages 253 
 
 ilCRDEK.— iSee Homicide,
 
 INDEX. XXI 
 
 Negligence, Generally. 
 
 Burden of Proof 254 
 
 Degree of Care Required 254 
 
 Ordinary Care Required 2o4 
 
 Plaintiff must Exercise Reasonable Care ^55 
 
 Of Servant, Master Liable for 255-250 
 
 Servant must bo Acting AVithin Scope of Employment 256 
 
 Wrongful Act of Servant 257 
 
 Must be Proximate Cause 257 
 
 Of Contractor 258 
 
 Contributory and Gross 2o9 
 
 Contributory and Slight 260-262, 270 
 
 Death Caused by 262 
 
 Equal Negligence 263 
 
 Injury the Result of Accident, and 263 
 
 Voluntary Exposure to Danger 264 
 
 Ordinary Care Defined 264 
 
 Ordinary Sldll Defined 452 
 
 Slight and Gross Defined 264 
 
 Collision on Highway 265 
 
 Of Common Currier. 
 
 Injui-y to Passenger, Prima Facie Evidence of 58 ,261) 
 
 Cannot be Avoided by Contract "7 
 
 Not Liable, When ''^ 
 
 Of Railroad Companief^. 
 
 Duty to Furnish Safe Machinery, etc 266 
 
 Liable for Torts of Servant 266 
 
 Negligence per se •. 266 
 
 Plaintiff must Exercise Ordinary Care 267 
 
 Right to Make Rules 267 
 
 Expelling Passenger 268 
 
 Passenger can Only be Put OIT at Station 269 
 
 Fencing Track. 
 
 Statutory Provision 269-270 
 
 Must Exercise Reasonable Care to Prevent Injury to Animals . . 270 
 
 Casual Breach in Fence 271-2/2 
 
 Stock Unlawfully Running at Large 273 
 
 Plaintiff's Contributory Neglig(;uce 274 
 
 Stock Escaping and Running at Large 274 
 
 What must be Proved 275 
 
 Injuries by Fire. 
 
 Prima facie Negligence 275 
 
 Reasonable Care to Prevent 276 
 
 Must Provide Approved Apparatus 277 
 
 Dry Weeds and Grass 278 
 
 Care Required of Land Owner 2i<) 
 
 Degree of Care Required of Company 280, 287 
 
 Highway Crossing. 
 
 Must be Put In Safe Condition 281 
 
 Care Required at 281 
 
 Signals to be Given at 2S-
 
 XXll INDEX. 
 
 Iliyhircnj Cronftinr; (Coirtinued). 
 
 Eights at, Equal and :\Iutual 282 
 
 View of Track Obstructed 283 
 
 Care Required of Travelers 281-285 
 
 Care must be Proportionate to Known Danger 285 
 
 Contributory and Gross Negligence 286 
 
 Negligence per se in Traveler 287 
 
 Negligence Charged must Cause Damage 288 
 
 Injury to Stock at 288-200 
 
 Neglect to King Bell Prima Facie Evidence, etc 289 
 
 Speed Through Cities Limited by Ordinance 290 
 
 Speed Through Cities not Limited by Ordinance .- . . . 291 
 
 Contributory Negligence of Childi'cn 291-293 
 
 Liable to Servant, Wlien. 
 
 Bound to Employ Reasonable Care and Skill 294-296 
 
 Servant Takes Risks Incident to Business 296, 298 
 
 Servant not Bound to Enquire, etc 296 
 
 Negligence in Employing Servant 297 
 
 Degree of Care Required 297 
 
 Servant Having Knowledge of Defects 299 
 
 Servant must Use Reasonable Care 299 
 
 Negligence of Fellow- Servant 300 
 
 Fellow-Servant Defined 300-301 
 
 Duty to Make Rules, etc 301 
 
 Of Municipal Corporations. 
 
 Slight, of Plaintiff, will not Defeat Recovery 245 
 
 Of Driver : 246 
 
 {See Municipal Corporations.) 
 
 NeGOTI.VULE iNSTRfMENTS. 
 
 Presumption in Favor of the Holder 302 
 
 Presumption can Only be Overcome by Proof 302 
 
 Taken as Security — Airinnocent Purchaser . ., 303 
 
 Not Taken in Payment or Part Payment, etc 303 
 
 Assignee with Notice from an Assignee Without 303 
 
 Indorsement in Blank 304 
 
 Assignee After Maturity 304 
 
 Assignee Before Maturity Without Notice, etc 304-305 
 
 Assignment Without Consideration 304 
 
 Assignee with Notice of Suspicious Facts 305 
 
 Who Deemed a bona fide Holder 306 
 
 Assignee with Knowledge 3U6 
 
 Liability of Guarantor of Collection or Assignor Under Illinois 
 
 Statute— Note 307 
 
 Liability Fixed by Statute 307 
 
 Intention does not Govern 307 
 
 Due Diligence Defined 307-309 
 
 Proof of Due Diligence 308 
 
 Suit Unavailing 309 
 
 Part of Note Collectable 310 
 
 Insolvency of Maker 310
 
 INDEX. XXill 
 
 Negotiable Instruments {Coniinued). 
 
 Execution Returned— No Property Found 311 
 
 Insolvency, How Proved 311 
 
 Return not Conclusive 311 
 
 Execution from Justice 311 
 
 Possession of Personal Property Evidence of Ovpnersliip 312-313 
 
 Cruarantor of Payment. 
 
 Liability of Endorser and Guarantor 314 
 
 Liability Fixed by Contract 314 
 
 Name of Third Person on Bacli of Note 314 
 
 Liability Continues how Long 315 
 
 Delay will not Release 315 
 
 Consideration Necessary 315 
 
 What Agreement Releases Guarantor 315-315 
 
 Subsequent Promise to Pay 316-317 
 
 Failure or Want of Consideration. 
 
 Burden of Proof 318 
 
 Considei'ation Presumed , 318 
 
 Abandonment of Claim Good Consideration 319 
 
 Claim must be Sustainable 319 
 
 Without Consideration, Void, When , 319 
 
 Obtained' by Fraudulent Representations. 
 
 What Must 1)0 Proved 320 
 
 Representation Must be Material 320 
 
 Obtained by Fraud and Circumvention. . 
 
 Void, When 320-322 
 
 Fraud in Consideration not Sufficient 322 
 
 Signing- Without Reading 323 
 
 Mistake as to Legal Effect 324 
 
 Maker must use Rea,sonable Care to Avoid, etc 324 
 
 What is Reasonable Care 324 
 
 Burden of Proof 325 
 
 Stolen or Wrongfully Obtained 325 
 
 Maker Liable, When 325 
 
 Duress, What 326 
 
 Moral Coercion 326 
 
 Lawful Imprisonment not Duress 327 
 
 Notice. 
 
 Carrier's Liability not Limited by 76 
 
 Of Exemption Binding on Shipper, When 77 
 
 Of Exemption not Binding Shipper, When . . 77 
 
 To Municipal Corporation, of Defective Sidewalks, Presumed, 
 
 When 249 
 
 Must have Actual or Constructive Notice of Defective Sidewallis, 250 
 
 By Possession 130 
 
 To Agent, Notice to Principal 328 
 
 To Corporation, How Given 329 
 
 Knowledge of Facts Calling for Inquiry 329 
 
 Recitals in Deed 330 
 
 Of Unrecorded Deed 330 
 
 To Agent, Binding, When 344
 
 XXIV INDEX. 
 
 Option Contracts.- See Contracts. 
 Officer. 
 
 Justification by. in Trespass 391 
 
 PARTNEILSHII'. 
 
 Wlio iiro Partners in Fact 330 
 
 How Formed 330 
 
 As to Tliird Persons 331 
 
 Holding Oneself Out, etc 331-332 
 
 In tlie Name of one Partner 332 
 
 Test of Partnership 333 
 
 Power to Bind the Firm 333 
 
 "Wliat Acts do not Bind 334 
 
 Partner Using Credit or Effects of 334 
 
 Acts Beyond the Scope of Business 335 
 
 Bound by Katiflcation 335 
 
 When Fraud of one Partner Binds the Firm 335 
 
 Notice of Dissolution Necessary, When 33G 
 
 Cannot Sue Each Other at Law 336 
 
 Wiien may Sue at Law 337 
 
 PaXvTY. 
 
 Competent Witnesses 39 
 
 Not Compelled to Testify 39 
 
 Testimony of, to be Weighed by Jury 39 
 
 Verbal Admissions of, How Weighed 40-42 
 
 When not Estopped by Admissions 42 
 
 When not Bound by Offer to Compromise 42 
 
 Not Bound by Statements of his own Witness 44 
 
 Capacity to Contract 81 
 
 PAS.SENGERS. — See Common Carriers. 
 
 Payment. 
 
 Part Payment in Full 85 
 
 Part Payment by Strangers 85 
 
 Performance. 
 
 Tender of 97 
 
 Perjury. 
 
 Proof to Authorize Conviction 542 
 
 Materiality of Evidence Sufficient, When 542 
 
 One Witness Sufficient, When 543 
 
 Authority of Officer must be Shown 543 
 
 Te-stimony must be Proved as Alleged 544 
 
 Must be Wilfully and Knowingly False 544 
 
 No Pteasonable Grounds of Belief 544 
 
 Official Character of Justice must bo Shown .')45 
 
 That the Accused was Sworn must be Shown 545 
 
 More than one Witness Required, When 545 
 
 Wiuit Must bo Proved MH 
 
 Matcri.-Uity must be Shown .^-J7 
 
 Test of Materiality iil7
 
 INDEX. XXV 
 
 Non-Pekformance. — See Contract. 
 
 Prevented by Defendant 453 
 
 Substantial 454 
 
 Payment, Condition Precedent 455 
 
 PliEA. 
 
 Of Justification in Libel 197-198 
 
 Of Justillcation in Slander Must be Filed in Good Faith 239 
 
 Of Justification in Slander, How Proved 369-370 
 
 When Plea does not Impute Crime, How Proved 371 
 
 Office of the Plea 372 
 
 Possession. 
 
 What Sufficient to Maintain Trespass 389 
 
 Of Real Estate Presumed to be under Legal Title 117 
 
 Eight to. Must be Shown in Ejectment 117 
 
 Prima Facie Evidence of Title 120 
 
 One First in Possession has the Better Title 120 
 
 Deed from Party Claiming 121 
 
 What Constitutes, of Heal Estate 127, 143 
 
 What docs not Constitute 144 
 
 What Constitutes, of Woodland 128 
 
 How Possession of Land may be Held 128 
 
 Enclosure by Natural Objects 128 
 
 Not under Color of Title 128 
 
 According to Boundaries in Title Papers 129 
 
 Notice by 130 
 
 Of Personal Property. 
 
 Change of, on Sale of. — See Fraud as Against Creditors. 
 
 Of Personal Property, Evidence of Title 162, 312, 353, 354 
 
 Temporary Possession by Vendor 355 
 
 Sufficient to Maintain Trespass 389 
 
 As Against a Wrong-Doer 390 
 
 Evidence of Title in Trover 404 
 
 Temporary, not Delivei-y, When 410 
 
 Symbolical Deliver of 164 
 
 May be by Agent 164 
 
 Of Growing Crops 164 
 
 Temporary, of Vendee 165 
 
 Adverse Possession. 
 
 Without Color of Title 121 
 
 Must be Hostile in its Inception 122 
 
 Permissive, Not Hostile 122 
 
 Subservient to the True Owner 122 
 
 Presumed to be Under Legal Title 122 
 
 Paper Title not Necessary • ■ • • 123 
 
 By Successive Holders 124 
 
 Deed not Necessary to Transfer 124 
 
 Temporary Line Ff nee 124 
 
 Line Fence Agreed Upon 125 
 
 Under Color of Title, Payment of Taxes 125 
 
 Burden of Proof 126 
 
 What must be Shown Under Limitation Law 126
 
 XXVI INDEX. 
 
 Prescription — See Iliiih waijti 
 
 rEiNCiPAij AND Agent. 
 
 Scopft of General Instructions 337 
 
 Dop;irtiirc from Business of Principal 337 
 
 A}?ency Presumed to Continue, Wlien 837 
 
 ^Varranty by Ap:ent 338 
 
 Public Oflicer a Special Agent 338 
 
 Wlien Principal Liable for Torts 339 
 
 Goods Furnished Wife or Minor Child 339 
 
 Goods Furnished After Desertion by Wife 340 
 
 Agent Personally Liable, When 343 
 
 Notice to Agent, When Binding 344 
 
 Good Faith Eequired of Agent 344 
 
 Corporations only Act by Agent 344 
 
 Individual Members of Board Cannot Act 345 
 
 Ralijicallon of AoanVH Ada. 
 
 Principal must Dissent from Unauthorized Acts 341 
 
 Must be Avith Full Knowledge 342 
 
 Cannot be as to Part Only 342 
 
 Corporations may Eatify, etc 345 
 
 Permitting One to Hold Himself Out, etc 343 
 
 Promise — See Limitation. 
 
 Proximate Cause. 
 
 Wliat is 184-185 
 
 Negligence Charged Must be 237 
 
 Public Officer. 
 
 Is a Special Agent 338 
 
 Individual Members of Board Cannot Act 345 
 
 PURfllASER. 
 
 Must Exercise Eeasonable Caution 15G-I57 
 
 Eape, 
 
 Crime Defined 548 
 
 Submission Through Fear 548 
 
 Complaining to Others 548 
 
 Consent Given 549 
 
 Female Bound to Eesist 549 
 
 Power of Eesistance not Overcome, etc 550 
 
 Contact of Sexual Organs Necessary 550 
 
 Character of the Woman may be Shown to Affect Credit 550 
 
 Character of Woman no Defense 550 
 
 No Outcry Made 551 
 
 Assault with Intent, etc 551 
 
 Eeasonable Doubt as to Intent 5.52 
 
 E.\tification. 
 
 What Is 154 
 
 Fraudulent Purchase may be Eatified 153 
 
 Act of Partner may bo Eatified 335 
 
 Of Agent's Acts — See Principul (tnd A(ient 
 
 Trespasser by 396
 
 INDEX. XXVll 
 
 Keceipt. 
 
 Prima Facie Correct 51 
 
 May be Contradicted 51 
 
 Evidence of Goods in Good Order 72 
 
 Notice of Exemption in Carrier's Eeceipt, wlien Binding on 
 
 Shipper 77 
 
 "When Notice of Exemption not Binding on Shipper 77 
 
 Eemaeks. 
 
 By the Court in Presence of Jury 11 
 
 Keplevin, 
 
 When the Action Lies 346, 347 
 
 Eight to Possession Sufficient 346 
 
 What Must be Proved 347 
 
 Wrongful Detention, How Proved 348 
 
 When Demand not Necessary 349 
 
 Contesting Plaintiff's Title, no Demand Necessary 349 
 
 When Demand Necessary 350 
 
 Wrongful Taking or Demand Must be Proved 351 
 
 What Essential to a Demand 351 
 
 Against an Officer. 
 
 Property Taken on Execution 351 
 
 Execution Conclusive, When 351 
 
 Executions and Indorsements Prima Facie Evidence, When 352 
 
 When Demand Necessary 352 
 
 Levy on Interest of Joint Owner 352 
 
 Plea of Property in A. and B 353 
 
 Burden of Proof 353 
 
 Plea of Property in a Stranger 353 
 
 Possession Evidence of Title 353 
 
 Li«n of Execution by Statute 354 
 
 Fraudulent Sale as Against Execution 354 
 
 Temporary Possession by Vendor 355 
 
 Growing Crops, When Personal Property 355 
 
 Levy on Growing Crops, and Taking Possession 355 
 
 Building Personal Property, When 356, 357 
 
 Lien of Judgment and Chattel Mortgage 357 
 
 Trover, Property Not Found 358 
 
 Bailee cannot Deny Bailor's Title 358 
 
 Eight to Distrain Cattle 359 
 
 Must be Taken Damage Feasant 360 
 
 Kobbeky. 
 
 Crime Defined 552 
 
 Facts Constituting 552 
 
 Taking Must be by Force or Fear 553 
 
 Property Must be Proved as Charged 553 
 
 Verdict may be for Larceny 553 
 
 Eesidence— See Divorce.
 
 x xvi 11 index. 
 
 Sale. 
 
 AVliat is a Contract of 84 
 
 01" Personal Property, Future Delivery 95 
 
 Procured by Fraud 153 
 
 Contract of may be Rescinded for Fraud loii 
 
 Contract of may be RatifuHl 153 
 
 Fraudulent as Aprainst Creditors .jji 
 
 By Sani[>le, Implied Warranty 422 
 
 When Xot by Sample 423 
 
 For Future Delivery. ^ 
 
 Implied Warranty of Kind and Qur.lity 424 
 
 Of Macliine on Trial 42G 
 
 Self-Defense— See Homicide. 
 
 Selling Liquor Without a License. 
 
 What Constitutes the Offense 554 
 
 Burden of Proof as to License 554 
 
 Sales by Servant 554-555 
 
 When Not Liable for Act of Servant 555 
 
 Charge Must be Proved as Alleged 55G 
 
 Agency Must be Proved 55G 
 
 Single Transaction One Offense 55(> 
 
 Sale to Minors 556 
 
 Burden of Proof as to Written Ord(>r 557 
 
 Knowledge of Minority Immaterial 557 
 
 Selling to a Person in the Habit, etc 5.').s 
 
 M(>aning of "In the Habit of Getting Intoxicated" 558 
 
 Habit Must Exist at tiie Time 558 
 
 In the Habit of Drinking, Not Enough 559 
 
 Settlement — See Account Stated. 
 
 Sidewalks — See Municipal Corporations. 
 
 Slander. 
 
 Nature of the Action 361 
 
 Malice and Damage Presumed, When 361 
 
 Malice Defined 362 
 
 All the Words Need Not be Proved 362 
 
 W'ords Presumed to bo Used, How 363 
 
 Charge of Dishonesty 363 
 
 Charge of Adultery, etc 363 
 
 Charge of Arson by Innuendo 364 
 
 Charge of Murder by Iimu<>ndo 365 
 
 Words Must be Proved as Charged 365 
 
 Words Not Spoken Maliciously 366, 367 
 
 Anger no Justification 367 
 
 Anger in Mitigation, When 36S 
 
 Slanderous Words Explained 368, 369 
 
 All the Words Need Not bo Proved 36'J 
 
 Plea of .Justification, How Proved 3Gn-37 1 
 
 When the Plea Does Not Impute Crime 371 
 
 Plea of Justification Filed in Good Faith 372
 
 INDEX. XXIX 
 
 Office of the Plea of Justification 372 
 
 Kepeating Eeports 372 
 
 SPECiAii Property. 
 
 Defined 390 
 
 Trover, by One Having 404 
 
 In Malicious Mischief 540 
 
 Streets — See Municipal Corporations. 
 Subscription Paper. 
 
 Suit on 92-93 
 
 Sunday. 
 
 Contracts Made on 90 
 
 Tender. 
 
 What Constitutes a Valid Tender 373 
 
 Burden of Proving 374 
 
 Made as a Gift or Present not Valid 374 
 
 Made on Condition not Valid 375 
 
 Willingness to Pay no Tender 375 
 
 If Accepted, Must be upon Terms Proposed 376 
 
 Specifying Objection a Waiver of Others 377 
 
 Production of Money may be Waived 377, 411 
 
 Kept Good 378 
 
 After Suit Brought 378 
 
 Equivalent to Payment, When 409 
 
 Title. 
 
 In Action of Ejectment only Legal Title Involved 116 
 
 One in Possession of Real Estate Presumed to have 117, 122 
 
 Can Only be Conveyed by Deed 117 
 
 Deduced from a Common Source 118 
 
 One Having Prior Deed has Legal Title 1 18 
 
 Possession Prima Facie Evidence of 120 
 
 First Possessor has Better 120 
 
 Due from Party in Possession Claiming 121 
 
 By Prescription, Without Color of Title 121 
 
 By Payment of Taxes under Color of Title 1 25 
 
 Not Involved in Forcible Entry and Detainer 110 
 
 Trespass — Injuries io ihe Person. 
 
 Assault and Assault and Battery Defined 379 
 
 Plaintiffs First Assault 380 
 
 Aiding, Abetting, etc 380 
 
 Evil Intent or Negligence Required 38 1 
 
 Expelling Trespasser 381 
 
 Eepelling Force by Force 382 
 
 In Defense of Possession 382 
 
 Self-Defense, Excessive Force 382, 384 
 
 Drunkenness no Justification 384 
 
 Words of Provocation no Justificvition 384 
 
 Words of Provocation in Mitigation of Damages 384 
 
 Degree of Proof Required 385
 
 XX\' INDEX. 
 
 Faxse Imprisonment. 
 
 What Constitutes 385 
 
 Who Liable as Joint Trespassers 38(; 
 
 When Not Liable as Joint Trespassers 387 
 
 Part of Defendants Guilty, Form of Verdict 387 
 
 Good Faith in Miti^'ation 388 
 
 Exemplary Damages, When 388 
 
 Injuries to Personal Property. 
 
 What Constitutes 389 
 
 What Possession Sufficient .■ 389 
 
 Possession by Agent 389 
 
 Possession as Against Wrong-Doer 390 
 
 Special Property Defined , , 390 
 
 Intent Immaterial 390 
 
 Acts Prima Facie Trespass 391 
 
 Trespass ab Initio 391 
 
 Justification by an Officer 391 
 
 Property Taken on Execution 391 
 
 What Constitutes a Levy 392 
 
 Levy Invalid, When 393 
 
 Officer Selling Growing Crops 394 
 
 Seizure under Distress Warrant 394 
 
 When Landlord not Liable 394 
 
 Exemplary Damages 395 
 
 On Real Estate. 
 
 Actual Possession Sufficient, Etc 395 
 
 Trespasser by Ratification 396 
 
 By an Agent 396 
 
 Entry under Legal Process 397 
 
 Abuse of Legal Process 397 
 
 Entry Obtained by Fraud 398 
 
 Joint Trespassers 398 
 
 Taking Personal Property an Aggravation 399 
 
 By Domestic Animals. 
 
 Different Laws in Different States. Note 399 
 
 Not Permitted to Run at Large 400 
 
 Owner of Land not Bound to Fence, When 400 
 
 Lawfully Running at Large 400 
 
 Land Protected by Fence 400 
 
 What is a Sufficient Fence 401 
 
 Escaping Through Division Fence 401-402 
 
 Burden of Proof 402 
 
 Entry Through Plaintiff's Portion of the Fence 402-403 
 
 Bound to Fence Against what Stock 403 
 
 Tkover. 
 
 By General Owner 404 
 
 By one Having a Special Property 404 
 
 By one in Possession 404-405 
 
 What Interest Plaintiff Must Have 405 
 
 Suit by Servant or Agent 406
 
 INDEX. XXXI 
 
 Tkovek (Continued). 
 
 What Plaintiff Must Prove 40(5 
 
 Must Prove Conversion 40(i 
 
 Property Lost not Conversion 407 
 
 Demand and Refusal Prima Facie Evidence, Etc 407 
 
 When Demand not Necessary 407 
 
 Wilful Destruction of Property a Conversion 407 
 
 Title Claimed by Purchase from Defendant 40.S 
 
 Tender Equivalent to Payment 40!) 
 
 When Title Passes Without Payment 409 
 
 Temporary Possession by Vendee 410 
 
 Suit Against Warehouseman 410 
 
 Warehouseman's Lien 411 
 
 Tender Waiver of Production of Money 411 
 
 Measure ot Damages- Suit by General Owner 412 
 
 Damages, one Having Special Property 413 
 
 Damages by Lien Holder 413 
 
 Damages— Suit Against Lien Holder 413 
 
 Price Paid Prima Facie Evidence of Value 413 
 
 Price Paid not Conclusive Evidence of Value 413 
 
 Trunk. — See Common Carrier. 
 
 USTJKY. 
 
 Interest Forfeited 414 
 
 Presumption from Payment of 414 
 
 Interest Paid to be Credited on Principal 414 
 
 Excess Paid as Commissions 415 
 
 Attempts to Evade the Statute 415 
 
 Contract must be Proved as Alleged 41(j 
 
 Note Given for Usury 410 
 
 Note Growing out of Antecedent, Etc 417 
 
 Bona fide Holder of Note 418 
 
 Vekdict. 
 
 To be Determined by the Evidence 44 
 
 Must be Founded on the Evidence 187 
 
 V/akehouseman. 
 
 Care Required of ., "0 
 
 Trover Against 410 
 
 Lien of 411 
 
 Wakeantt. 
 
 By Agent 338 
 
 What Constitutes 418 
 
 No Particular Form of Words Required 418-410 
 
 Intent not Material, When 41!) 
 
 What does not Amount to 420 
 
 Mere Expressions of Opinions not 420 
 
 Praise or Boasting not 421 
 
 Must form part of the Contract 421 
 
 Warranty after Sale 422
 
 XXXll INDEX. 
 
 Sale for Future Delivery (Continued). 
 
 Sale by Sample, Implied 422 
 
 Keasoiiable Opportunity to Inspect, etc 423 
 
 Sale when not by Sami>le 423 
 
 Warranted Equal to Sample 423 
 
 Sale for Future Delivery. 
 
 Implied, of Kind and Quality 42-t 
 
 Implied, of Manufacturer 425-42G 
 
 Of Machine on Trial 426 
 
 To be Returned within Reasonable Time 42G 
 
 When no Implied Warranty 427 
 
 When Purchaser has Opportunity to Inspect 427 
 
 Fraud and Breach of Warranty 427 
 
 Of the Soundness of a Horse 428 
 
 Defect must Exist at time of 428 
 
 Visible Defects not Warranted Against 429 
 
 Artilice to Prevent Examination 430 
 
 What Plaintiff Must Prove 430 
 
 Measure of Damages 431 
 
 Of Skill and Care Implied, When 210-212 
 
 Of Skill and Care of Workman Implied 450-451 
 
 Water Courses. 
 
 City Liable for Changing 253 
 
 Wills. 
 
 Who May Make 432 
 
 Relatives have no Legal Claim, etc 432 
 
 Essentials of a Will 433 
 
 Jury Should Take the Law from the Court 433 
 
 Witnessing— What Sufficient ; 433 
 
 Insanity or Unsound Mind. 
 
 Issue to be Tried 434 
 
 Burden of Proof 434 
 
 What is Sound and Disposing Mind 435-43(3 
 
 Test of Testamentary Capacity 430 
 
 What is Testamentary Capacity 43G 
 
 Partial Insanity Jlonomania 437 
 
 Delusion Regarding Wile or Child's Property 438 
 
 Sanity is Presumed 43!) 
 
 Insanity— How Determined 43!) 
 
 Settled Insanity Presumed to Continue 439 
 
 Drunkenness as Afi-'Ctiiig Testamentary Capacity 440 
 
 Partial Failure of Memory 410 
 
 Old Age Does Not Incapacitate 411 
 
 Previously Expressed Purposes 441 
 
 Will May be Referred to ^^41 
 
 Expert Testimony— How Judged 442 
 
 Testimony of Subscribiiig Witness— How Judged 442 
 
 Undue Influence. 
 
 Issue to bo Tried '^ ^'^ 
 
 No General Rule— What Must Appear 113-444
 
 INDEX. XXXlll 
 
 Undue Influence {Continued). 
 
 Must Aflfect the Will 444 
 
 Must Destroy Free Agency 444 
 
 Legitimate Influence, What 445 
 
 Legitimate Advice or Persuasion 446 
 
 Cannot Question Testator's Motives 446 
 
 Motives May be Inquired into, When 446 
 
 Presumption from Unlawful Cohabitation 447 
 
 Effect of Groundless Fears 447 
 
 Provisions of Will may be Considered 448 
 
 Witness. 
 
 One, Sufficient, When 481, 543, 545 
 
 Credibility of. Question of Fact for the Jury 29 
 
 Circumstances Affecting the Credit of 30 
 
 One Credible Witness may be Entitled to More Credit than a 
 
 Number of Others 31 
 
 Jury Have no Right to Disregard the Testimony of. Without 
 
 Cause 31 
 
 When the Jury may Disregard the Testimony of 32 
 
 The Jury Should Reconcile the Testimony of, if Possible 32 
 
 Impeachment of . . . 33 
 
 Wilfully Swearing Falsely 33 
 
 Bad Reputation for Truth 34 
 
 Different Statements Out of Court 34 
 
 Contradictory Statements Out of Court 35 
 
 Jury Need not Disregard Testimony of Impeached Witness 35 
 
 Contradictory Statements Out of Court Explained 36 
 
 Testimony of, as to Dates 38 
 
 A Party as. 
 
 Testimony of, to be Weighed by Jury 39 
 
 Verbal Admissions of. How Weighed 40 
 
 Admissions of, all to be Considered Together 41 
 
 Admissions of. Jury may Believe Part and Reject Part 41 
 
 Admissions of, How to be Weighed 42 
 
 For a Corporation, How Regarded 40 
 
 Attorney as 45 
 
 Experts. 
 
 Medical Testimony 442 
 
 Woodland — See Ejectment. 
 
 WoEDS OF Provocation — See Homicide. 
 
 Work and Labor. 
 
 Implied Contract 449 
 
 Promise to Pay Implied, When 449 
 
 Where no Price is Fixed 450 
 
 Professional Services, Price Implied 450 
 
 Warranty of Skill and Care Implied 450-451 
 
 Ordinary Skill Defined 452 
 
 Effect of Accepting Work 452 
 
 Usual Wages Implied, When 453 
 
 Not Bound by Acceptance, When 453
 
 XXX iv INDEX. 
 
 Entire Contract. 
 
 Fulfillment Prevented by Defendant 453 
 
 Substantial Performance 454 
 
 Leaving Employ Without Good Cause 45 "> 
 
 Payment a Condition Precedent 455 
 
 Burden of Proof 45(1 
 
 Pretext for Leaving 45(; 
 
 Must be Substantial Cause for Leaving 45(> 
 
 Right to Recover in Different States — Note 457 
 
 Rule of Damages 457-458 
 
 Servant must Demean Himself Respectfully 459 
 
 Leaving on Account of Sickness 459 
 
 Discharged or Compelled to Leave Without Good Cause 459-460 
 
 Measure of Damages 460 
 
 Workman must Avoid Unnecessary Damage 460 
 
 Services by Member of Family 461 
 
 Stranger Member of Family 462 
 
 Services of Child 462 
 
 When Promise to Pay Child may be Inferred 463 
 
 Emancipation of Minor Child 463 
 
 Minor can Disaffirm Contract, When 463 
 
 No Implied Promise to Pay for Gratuitous Labor 463-464 
 
 Agreed Price must Govern 464 
 
 Contract Presumed to Continue, When 164 
 
 Evidence of Reasonable Worth 465 
 
 Burden of Proving Payment 465 
 
 Not Bound by Offer to Compromise 466 
 
 Eff.'ct of Pleading Set-Off 466 
 
 Written Contract Varied by Parol 466 
 
 (,i 
 
 3 "^ '■ '
 
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