SCOTT, C. J. (after stating the facts). On August 22, 1902, when the foreclosure sale was made of the leasehold interest of the Commerce Vault Company, the only interest which remained in the company was the right to redeem from the sale at any time within 12 months, and to continue in possession for a period of 15 months. This right was not such an interest as to be subject to levy and sale under execution. Merry v. Bostwick, 13 Ill. 398, 54 Am. Dec. 434; Watson v. Reissig, 24 Ill. 281, 76 Am. Dec. 746; Cook v. City of Chicago, 57 Ill. 268; Kell v. Worden, 110 Ill. 310; Hill v. Blackwelder, 113 III. 283. Consequently, no lien could attach to the leasehold interest by reason of the rendition of any judgment against the Commerce Vault Company subsequent to the foreclosure sale. Green v. Marks, 25 Ill. 221. The right of a creditor to redeem from a foreclosure sale at any time between 12 and 15 months after the date of sale, and to have the property resold to satisfy his debt does not exist by virtue of any lien on the property, but solely by reason of sections 20 and 23 of chapter 77, Hurd's Rev. St. 1903. Herdman v. Cooper, 138 Ill. 583, 28 N. E. 1094.

All of the judgments involved in this suit were rendered after the foreclosure sale, and for that reason none of them became liens upon the leasehold interest theretofore owned by the Commerce Vault Company. The Knights Templars and Masons Life Indemnity Company, however, redeemed from the foreclosure sale and caused the premises to be resold under execution No. 1 in its favor, as it had a right to do under the provisions of the statute above referred to. This sale produced a surplus of $17,964.96 over and above the amount necessary to reimburse the redeeming creditor for the money advanced by it and to satisfy that execution against the Commerce Vault Company. At the time of the sale under execution, and when the proceeds arising therefrom were received by the sheriff, he had in his hands two other executions which had been issued upon judgments rendered against the Commerce Vault Company during the month of October, 1903. As above indicated, neither of these judgments was a lien upon the leasehold interest heretofore mentioned. It was claimed by the garnishee in the trial court, and is contended. here in support of the judgments of the circuit and appellate courts, that executions Nos. 2 and 3, although not liens upon the leasehold interest, became liens upon the surplus arising from the sale under execution No. 1 at the instant such surplus came into the hands of the sheriff. Whether these executions became liens upon such surplus depends upon whether such surplus may be levied upon by the sheriff under those executions or applied thereon by him. This involves a consideration of the relation existing between the sheriff, as the holder of such surplus, and the Commerce Vault Company.

It has been heretofore decided by this court that a surplus remaining in the hands of a sheriff from the sale of property taken and sold under execution is not in the custody of the law, but that the sheriff holds such surplus for the use of the judgment debtor as money had and received (Pierce v. Carleton, 12 Ill. 358, 54 Am. Dec. 405; Lightner v. Steinagel, 33 Ill. 510, 85 Am. Dec. 292); or, as stated in Weaver v. Davis, 47 Ill. 235, the sheriff holds such surplus merely as a trustee for the debtor, which the latter may recover in an action against the sheriff for money had and received. Such being the relation between the sheriff, as the holder of the surplus, and the debtor, it is manifest that the latter has no property in the specific money received by the sheriff, but has merely a chose in action which may be enforced against the sheriff in an action of assumpsit. The sheriff may substitute any other money, provided it be a legal tender, in the place of the money received by him at the sale, and a payment with such substituted money would be a complete discharge of his liability to the person entitled to the surplus.

That a chose in action, other than those evidences of debt which circulate as money, is not subject to levy and sale under execution has been expressly decided by this court in Crawford v. Schmitz, 139 IH. 564, 29 N. E. 40. In the case of Turner v. Fendall, 1 Cranch (U. S.) 117, 2 L. Ed. 53, the Supreme Court of the United States, in discussing the question whether money collected for one person by a sheriff under an execution could, before it had been paid over to that person, be levied upon by the same sheriff under an execution in favor of another person and against the goods and chattels of the person for whom the money was collected, said: "The general rule of law is that all chattels, the property of the debtor, may be taken in execution, and whenever an officer has it in his power to satisfy an execution in his hands it is his duty to do so, and, if he omits to perform his duty, he must be accountable to those who may be injured by the omission. But has money not yet paid to the creditor become his property? That is, athough his title to the sum levied may be complete, has he the actual legal ownership of the specific pieces of coin which the officer may have received? On principle the court conceives that he has not this ownership. The judgment to be satisfied is for a certain sum-not for the specific pieces which constitute that sum-and the claim of the creditor on the sheriff seems to be of the same nature with his claim under the judgment, and one which may be satisfied in the same manner. No right would exist to pursue the specific pieces received by the officer, although they should even have an earmark; and an action of debt-not of detinue-may be brought against him if he fails to pay over the sum received or con

verts it to his own use. It seems to the court that a right to specific pieces of money can only be acquired by obtaining the legal or actual possession of them, and until this is done there can be no such absolute ownership as that an execution may be levied on them. A right to a sum of money in the hands of a sheriff can no more be seized than a right to a sum of money in the hands of any other person, and, however wise or just it may be to give such a remedy, the law does not appear yet to have given it." In Prentiss v. Bliss, 4 Vt. 513, 24 Am. Dec. 631, where the same question was before the court as in Turner v. Fendall, supra, it was said: "The fallacy of the ground assumed, that the money collected on an execution becomes the money of the creditor, will manifestly appear by inquiring whether an action of trover could be maintained against the sheriff when he neglects to pay over the money? Whether if the money was stolen or lost, it would be the loss of the officer or creditor? Whether, if received in bills which at the time, or at any time thereafter, should be subject to a discount or bear a premium, the creditor would sustain the loss or have the benefit of the premium? No one, I believe, would hesitate to answer all these. questions in the negative. ** Neither do we see any of the absurdities attending this view of the case which have been urged in the argument. It has been said that it is idle to require him to pay over the money to the creditor when it would be his duty immediately to levy on the same as soon as it came into possession of the creditor. But But it may be remarked that there is no greater absurdity in this than there is in requiring him in all cases to forbear levying on property until it becomes the property of the person for whose debt he is about to levy. Whether he or any other person is indebted and about to make a payment, and whether this payment is to be made in money or specific articles, he, as sheriff, cannot stop the payment and seize upon the money or specific articles until they have become the money or property of the person for whose debt he takes it." The case of Leach v. Pine, 41 Ill. 65, 89 Am. Dec. 375, relied upon by appellee, is entirely dissimilar to the one at bar. The property involved in that case was personal property, and the executions were liens upon the property which was seized by the sheriff. In such case it is manifest In such case it is manifest that the surplus arising from a sale under one execution could be applied by the sheriff upon other executions which were in his hands and were liens upon the property at the time such sale was made. In First Nat. Bank of Chicago v. Hanchett, 126 Ill. 499, 78 N.E.-4

16 N. E. 907, the sheriff had in his hands a writ of attachment, which he levied upon certain property in the possession of the warehouse company which was the defendant in attachment, and upon which the defendant had a lien for storage charges and money advanced. Thereupon the various owners of this property paid to the sheriff the amount of the storage charges, and he released the levy. The attorney for the plaintiff directed him to pursue this course and to hold the money so received in lieu of the property released. The sheriff, however, paid the money, upon the order of the defendant, to a creditor other than the plaintiff. This court held that the sheriff should have returned the money into court to answer to the judgment in attachment, as the court might direct. That conclusion was undoubtedly correct for this reason there pointed out: The money was paid into the sheriff's hands by the defendant's creditors, and the order given by the defendant to the creditor to whom the money was paid "was a distinct admission by the warehouse company that the money in the sheriff's hands was their money, and upon this, if nothing else, the sheriff should have attached or have held the money in his hands as the money of the warehouse company and have brought the same into court to abide," etc. In the case now before us the identical money in the sheriff's hands did not become the money of the execution debtor, but the sheriff, in his individual capacity, was merely indebted to the Commerce Vault Company precisely as though he owed it for borrowed money.

Appellee refers us to adjudications in sister states supporting his view, but we regard the conclusion reached by the Supreme Court of the United States and by the court of last resort of the state of Vermont as founded upon the stronger reasoning. We therefore hold that executions Nos. 2 and 3 were not liens upon the surplus in the hands of the sheriff at the time the garnishment writ was served upon him in this case. That was the only defense set up by the answer, which admitted that the garnishee had $17,964.96 in his hands belonging to the Commerce Vault Company when this writ was served upon him. The circuit court therefore erred in overruling the exceptions to the answer, in discharging the garnishee, and in entering judgment against appellant for costs.

The judgment of the circuit court and the judgment of the Appellate Court will be reversed, and the cause will be remanded to the circuit court for further proceedings in conformity with the views herein expressed. Reversed and remanded.

ERROR.

In a prosecution for murder, a witness for defendant was asked if he had testified at the coroner's inquest to certain facts which he testified to on trial, and answered that he did not remember. In argument, the prosecuting attorney referred to the matter, and stated that if the witness had made any such statement at the coroner's inquest he would have said so. Held, that the cross-examination was improper, because it had not previously been shown that witness had been given an opportunity at the coroner's inquest to testify to the matter with respect to which he testified on the trial, and that, in connection with the argument of the prosecuting attorney, the error in allowing such cross-examination was prejudicial and cause for reversal.

3. CRIMINAL LAW-INSTRUCTIONS-PRESUMPTION OF INNOCENCE.

In a prosecution for murder, a requested instruction that, if the jury could reconcile the evidence upon any other reasonable theory or hypothesis than that of defendant's guilt, it was their duty to acquit, was correct, and, in the absence of any other instruction of like import, its refusal was reversible error.

Error to Circuit Court, Vermilion County; E. R. E. Kimbrough, Judge.

Benjamin Cassius Larrance was convicted of manslaughter, and brings error. Reversed and remanded.

Buckingham, Dysert & Troup, for plaintiff in error. W. H. Stead, Atty. Gen., and J. W. Keeslar, State's Atty. (W. T. Gunn and O. M. Johns, of counsel), for the People.

SCOTT, C. J. Benjamin Cassius Larrance was indicted for the murder of John Crimmins by the grand jury of Vermilion county. Upon a trial he sought to justify the killing on the ground of self-defense and was convicted of manslaughter. He prosecutes this writ of error for the purpose of having the record of the circuit court of Vermilion county reviewed.

Henry Larrance, a brother of plaintiff in error, on October 10, 1905, owned and operated a sawmill and the millyard connected therewith. Plaintiff in error was in the employ of his brother, assisting in carrying on the business at the mill. The deceased had some logs in the yard which he had brought there for the purpose of having them sawed, but concluded to remove them without sawing, and for that purpose came to the mill on the day last mentioned with a team and two hired men, Robinson and Setzer, and his brother, Jerry Crimmins. In attempting to move one of the logs a singletree was broken. Deceased started to go to his home to get another to replace the broken one. As he was on the point of going, Henry Larrance said to him that he was owing him (Henry Larrance) some money, and that the account

must be settled before the logs were taken away. The deceased assented, and while he was gone for the singletree plaintiff in error brought Henry Larrance's books to the yard for the purpose of making settlement. North of the sawmill a short distance there was a logway or driveway running east and west, and just south of this driveway was a pile of logs; each log being parallel with the driveway. When deceased returned with the singletree Henry Larrance again spoke to him about the settlement, whereupon Henry Larrance, the deceased, and plaintiff in error, who had the books, all sat down on a log in the large pile. Deceased was about the middle of the log east and west. Henry Larrance was on his east side, plaintiff in error was on his west side, and all three faced north. Deceased inquired what the amount was. Henry Larrance replied $2.60. Deceased expressed a desire to see the books. Plaintiff in error exhibited them, and after they were examined the deceased produced his book and announced that it showed just half that much. Plaintiff in error said: "We can't settle then." Henry Larrance by this time had risen to his feet and moved around in front of the deceased, where he stood facing him, and again told him not to move the logs until payment was made. Deceased said, "I will move them," and arose to his feet. Henry Larrance ordered him off the premises. The deceased replied that he would go when he got ready. Henry Larrance then threw off his coat and told the deceased to get out of there or he would whip him. Jerry Crimmins stepped between Henry Larrance and the deceased, saying, "Boys, there is nothing to fight about." Thereupon the deceased drew a revolver from his pocket and held it in his right hand, seeing which the plaintiff in error also drew his revolver and said to the deceased, "Drop it!" and walked around in front of the deceased, keeping his face toward him, passing between the deceased and Henry Larrance, repeating the words, "Drop it!"

As to what next occurred the evidence is in conflict. There were present at this time, the deceased, plaintiff in error, Henry Larrance, Jerry Crimmins, Setzer, Robinson, John Larrance (the father of the plaintiff in error), and Charles Baird. John Larrance, however, was not a witness on the trial of the cause. Jerry Crimmins Jerry Crimmins testified that when plaintiff in error had reached a point directly in front of the deceased he fired two shots at John Crimmins, both of which took effect; that the latter then walked away a few steps, fell down, and immediately died without speaking a word; that, at the time the shots were fired, he (Jerry Crimmins) was about 15 feet away from his brother, engaged in a controversy with Henry Larrance. Robinson testified that after the plaintiff in error passed from the west side of the deceased around in front of him, and

to a point northeast of him, plaintiff in error, though pointing his revolver at the deceased, kept backing away from him to the east, exclaiming, "Drop it!" That the deceased followed him 12 or 14 feet, until the deceased reached a point about 4 feet east of the east end of the log on which they had been sitting. That, when he reached that point, he (John Crimmins) gripped his revolver, raising it and pointing it toward the plaintiff in error, when the latter fired the two shots that killed the deceased. The testimony of each, Setzer, Henry Larrance, Charles Baird, and plaintiff in error is harmonious with that of Robinson in reference to the deceased following plaintiff in error as the latter retreated, after he had passed to the east of the deceased. Setzer said that as plaintiff in error backed away he said to deceased, "Drop it," and "Don't follow me"; that both of these expressions were several times repeated, notwithstanding which the deceased continued to advance upon plaintiff in error with the revolver in his hand. Charles Baird testified that immediately before the shooting the deceased was advancing upon plaintiff in error and raised his revolver and pointed it toward the latter, when the fatal shots were fired. Henry Larrance says that, as his brother went backward, commanding the deceased to drop his revolver, the latter followed, and as they proceeded in this manner Crimmins pointed his revolver at the plaintiff in error, when the latter fired. Plaintiff in error says that, when he first commanded deceased to drop the revolver, the latter replied, "I'll pick you first," and pointed his revolver toward plaintiff in error, who then replied, "Johnny, don't do that"; that after he (Larrance) had passed to the east the deceased advanced and plaintiff in error kept going backward, and called out two or three times, "Johnny, don't you follow me"; that the deceased continued to advance and lowered his revolver a little and then raised it again, pointing it directly at the plaintiff in error, when the latter fired. Immediately after the shots were fired, and after the deceased had fallen to the ground, plaintiff in error called those present to witness that he had acted in selfdefense, said that he was going to Danville to give himself up, and in accordance with that announcement took his departure and surrendered himself to the sheriff.

It is first urged that the verdict of the jury is clearly against the manifest weight of the evidence, and that for this reason the judgment should be reversed. A careful examination of the record leads us to the conclusion that this error is not well assigned. We regard the case, however, as being very close on the evidence, and for this reason the rights of the parties in reference to certain questions which arose on the trial could be made effective only by rulings made in exact accord with the law.

A coroner's inquest was held on the even

ing of the day of the homicide, at which Henry Larrance testified. Upon cross-examination on the trial in the circuit court, for purposes of impeachment, he was asked by the prosecutor whether he related anything at the inquest about his brother having said to John Crimmins, "Don't follow me," and whether he said anything at the inquest about John Crimmins having advanced upon his brother. After an objection to this line of examination was overruled. the witness replied that he did not remember whether he had, at the coroner's inquest, testified anything in reference to these matters. Based upon this testimony, counsel for the prosecution, in his argument to the jury, made use of the following language: "Henry Larrance now tells you that at the time that this shot was fired John Crimmins was advancing upon Cassius Larrance and Cass Larrance was retreating. At the coroner's inquest I asked him if he made any such statement as that, and he hays he don't remember. He didn't make any such statement as that, or he would have told you so. That part of the statement is different now from what it was on the evening of this shooting before the coroner, that John Crimmins was advancing upon his brother and attempting to shoot him. Absolutely none. And now, when this case comes to trial, he says that John M. Crimmins was advancing upon his brother. And then this little Baird boy-there is some things about his evidence. He tells you, and they would have you believe, that he says that Crimmins was advancing upon Mr. Cassius Larrance at the time this shot was fired. It is up to this jury to say whether or not a man in this country can be shot down in cold blood and yet the man go scot-free. It is no wonder that we are pointed at as a county of lawbreakers-" Objection was then made and overruled, whereupon counsel continued: "As a county of murderers. We have a right to refer to a matter that is of common knowledge." Whereupon an exception by plaintiff in error was noted.

We think the method of the cross-examination above referred to was improper, and that the objection made thereto should have been sustained. The proper matter for investigation in reference to the testimony of Henry Larrance before the coroner's inquest was not, in the first instance, whether or not he then testified that plaintiff in error told John Crimmins not to follow him, and that John Crimmins advanced upon plaintiff in error prior to firing the shots, but the crossexamination should first have been addressed to showing that Henry Larrance was given an opportunity to testify in reference to these matters; that he was either interrogated about them specificially; or that he was directed, or invited, or given an opportunity to state all that was said and done at the time of the affray. 30 Am. & Eng. Ency. of Law (2d Ed.) 1118; Commonwealth v. Haw

kins, 3 Gray (Mass.) 463; Hyden v. State, 31 Tex. Cr. R. 401, 20 S. W. 764. Unless he was so specifically interrogated, or was so directed, invited, or given opportunity at the inquest, it was entirely immaterial whether he then made the same statements on this subject that he made on the trial in this case. We think this cross-examination, when taken in connection with the remarks of counsel which we have above set out, was prejudicial to the rights of the accused.

It is apparent, from the testimony in reference to the occurrences at the time of the shooting, that the jury should have been accurately and fully instructed in reference to the law of the case. The court refused

the twenty-fourth instruction asked by plaintiff in error, which was in the words following: "The jury are instructed by the court that, if they can reconcile the evidence in this case upon any other reasonable theory or hypothesis than that of this defendant's guilt, it is your duty to do so and acquit the defendant." We think this instruction was a correct statement of the law, and, in the absence of any other of like import, its refusal in this case was reversible error. Other criticism of the action of the circuit court in passing upon instructions is without merit.

The court improperly admitted evidence of a statement made by John Larrance immediately after the death of John Crimmins which indicated that the shooting was premeditated, and improperly excluded evidence offered by plaintiff in error which would have tended to rebut any presumption of malice which the jury might have drawn from the fact that plaintiff in error was armed with a revolver. Defendant in error insists that no prejudice resulted from these errors, for the reason that the jury returned a verdict of guilty of manslaughter, which amounted to a finding that plaintiff in error was not animated by "malice aforethought." Whether in the present state of the record these errors last mentioned would require reversal we deem it unnecessary to decide, as we apprehend they will not arise upon another trial of the case.

Other questions are presented, but, in view of conclusions above reached, we will not extend this opinion by discussing them.

The judgment of the circuit court will be reversed, and the cause remanded. Reversed and remanded.

(222 111. 150)

HARRISON, Mayor, et al. v. PEOPLE ex rel. RABEN.

(Supreme Court of Illinois. June 21, 1906.) 1. INTOXICATING LIQUORS-LICENSES-POWERS OF OFFICERS-DISCRETION.

Though an ordinance requires the mayor to grant dramshop licenses to applicants furnishing a proper bond and evidence of good character, the mayor may refuse to issue a license to keep a dramshop at a place where it will be a detriment and injury to the neighbornood or offensive to the best interests of society.

2. SAME-LOCATION-NEIGHBORHOOD OF PUBLIC SCHOOL.

The discretion of the mayor of a city to refuse a license to keep a dramshop at a place where it will be a detriment and injury to the neighborhood, or offensive to the best interests of society, is not abused by refusing a license to conduct a dramshop adjacent to or in the immediate neighborhood of a public school.

Appeal from Appellate Court, First District. Mandamus by the people, on relation of Henry Raben, to compel Carter H. Harrison and others, as mayor, city clerk, and city collector of the city of Chicago, to issue a dramshop license to relator. From a judgment of the Appellate Court, affirming a judgment awarding the writ, respondents appeal. Reversed.

The people, on the relation of Henry Raben, filed a petition in the superior court of Cook county against the appellants, as mayor, city clerk, and city collector of the city of Chicago, for a writ of mandamus to compel them to issue to the relator a license to keep a dramshop at 345 East Division street, in said city. The respondents answered the petition, and upon a hearing the court awarded the writ as prayed. On appeal to the Appellate Court for the First District that order was affirmed, and the respondents now bring the case to this court by a further appeal.

The case was heard in the superior court upon an agreed state of facts, as follows: "The only ordinance of the city of Chicago regulating the matter of granting licenses to keep dramshops is the following: '1175. The mayor of the city of Chicago shall from time to time grant licenses for the keeping of dramshops within the city of Chicago to persons who shall apply to him in writing therefor and shall furnish evidence satisfying him of their good character. Each applicant shall execute to the city of Chicago a bond, with at least two sureties to be approved by the city clerk or city collector, in the sum of $500, conditioned that the applicant shall faithfully observe and keep all ordinances in force at the time of the application or thereafter to be passed during the period of the license applied for, and will keep closed on Sundays all doors opening out upon any street from the bar or room where such dramshop is to be kept, and that all windows opening upon any street from such bar or room shall on Sundays, except between the hours of one o'clock a. m. and five o'clock a. m., be provided with blinds, shutters or curtains, so as to obstruct the view from such street into such room. Nor shall any windows be painted or covered in any manner so as to obstruct the view from such street into such room. No application for a license shall be considered until such bond shall have been filed.' It is admitted that the petitioner made his application for a license to keep a dramshop at the place in question, and that in so doing he did everything required of him by the laws or ordinances; that no question was