away, which the defendants restrained by in- August 18, 1877. Indorsed on bond, Receipt, $641 00 Oct. 19, 1878. ants, Indorsed on bond, Receipt, do. on do., do., do. on do., do., May 21, do. do. on do., do., June 5, do. do. on do., do., do., Aug. 15, do. do. on do., do., :Sept. on do., do., do. Nov. 22, do. 585 15 200 00 50 00 145 73 58 32 260 00 which either or both parties then supposed had been paid on the bonds. It does not appear that the several indorsements were compared with the receipts held by the mortgagor, or that the payment represented by the indorsements on the bond and receipts held by the mortgagor were even aggregated, or the amount unpaid on the bond ascertained. It does not appear that the value of the land at the date of the settlement was agreed on, or even estimated. The first cause of action, which rests on the theory that the plaintiff had paid his bond in full, without taking into account the sum of $585.15 in dispute, is without any support in the evidence. The second cause of action, for money had 180 00 and received, is a kind of an equitable action, in which the recovery, if had, must be according to what is just and good, ex æquo et bono. Colvin v. Holbrook, 2 N. Y. 126, 130; Bank V. Eltinge, 66 N. Y. 625; 4 Waite, Act. & Def. 469; 1 Selw. N. P. (13th Ed.) 96. To have entitled the plaintiff to recover under that the defendants had received money from this count, the evidence should have shown the plaintiff which, in good conscience, the that the defendants had received money from defendants ought not to have retained. To have established this, the plaintiff might have $3,485 35 In September or October, 1879, the defendants began a suit for the foreclosure of the mortgages. November 6, 1879, Roberts reconveyed the 145 acres to the defendants, and paid the above $260, and thereupon the defendants canceled the bond, both mortgages, and discontinued the suit. In June, 1880, Moses P. Roberts began this action, alleging that December 26, 1877, he paid de-shown that the defendants defrauded him, fendants $585.15, for which he held their re- but there is no allegation or evidence of fraud; ceipt, (third item in above statement,) which or he might have shown that there was a miswas not indorsed on the bond, "was not ap-as before stated, there is no evidence that the take, which resulted injuriously to him. But, plied on said debt by reason of such mistake, value of the land reconveyed was agreed upon and said mortgage was paid in full, besides the amount mentioned in said receipt, and or talked about, or that the amount which the the same was duly discharged by the defend-plaintiff had paid upon the bond was agreed ants, and said foreclosure action was discon- upon or talked about. If the verdict could be tinued and settled." In a second count it is sustained, the terms of settlement would be alleged that, December 26, 1877, the defend- altered; and instead of this plaintiff paying, ants received $585.15 to apply on the bond November 6, 1879, $260, and reconveying the and mortgage, which they failed to apply, land for a discharge of his bond and both and are indebted to plaintiff in that amount mortgages, he would receive from the defendants $325.15. There is no evidence that for money had and received, with interest. Upon the trial, the jury rendered a verdict either party contemplated such a result; much less that the defendants would have agreed against William Ellwood for the amount claimed, and interest; but rendered a verdict to it. The plaintiff cites Calkins v. Griswold, of no cause of action in favor of the defend-11 Hun, 208; Wheadon v. Olds, 20 Wend. ants Barr and Platt. No motion for a new 174. In these cases, articles were sold at a trial was made on the minutes at the circuit, price agreed on, and the amount due was ascertained by a computation of quantities, the or on a case at special term; but Ellwood appealed from the judgment to the general to have been considerably less than the agpealed from the judgment to the general aggregate of which was afterwards discovered term, where the case was heard on the excep- to have been considerably less than the agtions, reversed, and a new trial granted, with gregate mutually supposed to have been decosts to abide the event. The plaintiff appealed to this court, and after the return was filed he assigned his interest to Alpha A. Roberts, who was substituted in the place of the original plaintiff by an order of this court granted November 30, 1886. W. Woodbury, for appellant. A. C. Calkins, for respondent. FOLLETT, C. J., (after stating the facts as above.) The case is barren of evidence tending to show that the settlement of November 6, 1879, was made on the basis of the amounts livered, and for which the plaintiff, in each case, paid. It was held that the amount overpaid might be recovered in an action for money had and received. There is no doubt about the correctness of these decisions. This question has long been well settled. But we have attempted to show, and as the general term proved, the elements in the cases cited, and on which the recoveries were based, are entirely absent from the case at bar. The order should be affirmed, and a judgment absolute ordered against the appellant on his stipulation, with costs. All concur, except BRADLEY and HAIGHT, JJ., not sitting. MURDER-INSTRUCTIONS. On a trial for murder, the district attorney, after the main charge, asked an instruction that the burden of establishing self-defense as a defense was on defendant. The court said: "I think I have already charged that; " and then charged that the burden of proof was on defendant to establish the defense of self-defense "beyond a reasonable doubt." The district attorney asked that this be withdrawn, saying: "We do not claim that the burden of proof is upon the defendant to establish the defense of self-defense beyond a reasonable doubt; " but the court replied: "I will leave it as it is." Afterwards he said: "With regard to that portion of the charge which was made at the request of the district attorney, the court will withdraw what it said * * * on that subject, and will charge this: 'He must make his defense appear to the jury, availing himself of all the evidence in the case on either side.' "" Afterwards the court refused defendant's request to charge that "if, on all the evidence, there is a reasonable doubt as to whether, at the time when the defendant fired the shots, he was in danger of great bodily harm, and as to whether there was reasonable ground to apprehend such injury, defendant is entitled to the benefit of the doubt." There had been no other charge on the subject, except that defendant was entitled to acquittal in case of a reasonable doubt as to his guilt. Held, that what had 'been said on the subject of reasonable doubt, as applied to the defense of self-defense, had not been withdrawn, and was reversible error. DANFORTH, J., dissenting. Appeal from supreme court, general term, fourth department. John D. Riordan appealed from a conviction of manslaughter in the second degree to the general term of the supreme court, which reversed the judgment of the trial court, (3 N. Y. Supp. 774,) and the people appeal. Irving R. Devendorf, Dist. Atty., for the People. A. M. Mills, for respondent. ANDREWS, J. The conviction in this case cannot be disturbed unless there was error in the charge. The rule that, in criminal cases, the defendant is entitled to the benefit of a reasonable doubt, applies, not only to the case as made by the prosecution, but to any defense interposed. Stokes v. People, 53 N. Y. 161; Brotherton v. People, 75 N. Y. 159; O'Connell v. People, 87 N. Y. 377; People v. McCann, 16 N. Y. 58. The defendant on the trial sought to establish that the homicide was committed in self-defense. This issue was tried, and submitted to the jury, as a material issue in the case. This court cannot on any material issue was to operate in favor of the defendant. But on the conclusion of the main charge the district attorney asked the court to charge "that, where the defendant makes a claim of self-defense,-that the homicide was committed in self-defense,the burden of establishing the necessary facts to avail himself of that defense is upon the defendant;" and the court replied: "I think I have already charged that;" and the defendant excepted to the proposition presented by the prosecution, and acceded to by the court. The court then said: "I charge that where a defense of self-defense is set up, in the legal term, the burden of proof is upon the defendant to establish his defense beyond a reasonable doubt." The district attorney then said: "I ask the court to withdraw that charge. We do not claim that the burden of proof is upon the defendant to establish the defense of self-defense beyond a reasonable doubt." He The court replied: "I think I will leave it as it is." Some time later in the proceedings, the court said: "With regard to that portion of the charge which was made at the request of the district attorney, the court will withdraw what it said to the jury on that subject, and will charge this: must make his defense appear to the jury, availing himself of all the evidence in the case on either side;"" and to this also the defendant excepted. It is claimed that by this the court withdrew the prior instruction that the defendant must establish his defense beyond a reasonable doubt. It will be observed that the court withdrew what had been charged "at the request" of the prosecution, and that request related only to the burden of proof on the issue of self-defens、 and not to the question whether such defen..e must be established beyond a reasonable doubt. If the court intended to go further, and withdraw what had been said on that subject, the language was equivocal, and might easily have been misunderstood by the jury. But the subsequent refusal of the court to charge a proposition submitted by the defendant seems to make it clear that the court did not intend to withdraw what had been said on the subject of reasonable doubt. The court was asked to charge "that if, on all the evidence, there is reasonable doubt as to whether, at the time when the defendant fired the shots, he was in danger of great bodily harm, and as to whether there was reasonable ground to apprehend such injury, the defendant is entitled to the benefit of the doubt;" and the court "declined to charge in that form," and the defendant excepted. There had been no charge upon this subject, except as before stated. We concur in the opinion of the general term that for the error of the charge the conviction should be set aside. All concur, except Judgment affirmed. RUGER, C. J., not voting, and DANFORTH, J., dissenting. (129 Ill. 591) (Supreme Court of Illinois. Oct. 29, 1889.) CRIMINAL LAW-SEPARATE TRIAL-SPEEDY TRIAL. 1. Where several defendants, jointly indicted, are awarded separate trials, such trials, being based upon the same indictment, and under the control of the same state's attorney, cannot be held simultaneously before different branches of the criminal court of Cook county, though the state's attorney has several official assistants, as such branches are, as respects jurisdiction, independent courts. 2. The trial of several defendants, jointly in dicted for murder, was, at the second term at which they might have been tried, severed at the request of one defendant. The trial of the others, which was at once begun, not being finished at the end of the term, the trial of the other defendant was continued. Held that, the delay having been caused by his own act, such defendant was not entitled to be released under Rev. St. Ill. 1889, c. 38; $438, discharging from custody prisoners not tried at the second term of the court, "unless the delay happen on the application of the prisoner. " : Original proceedings in habeas corpus. Seth F. Crews and H. E. Porter, for peti tioner. PER CURIAM. The petitioner, Frank J. Woodruff, alias Frank J. Black, petitions this court for a writ of habeas corpus, and to be discharged from imprisonment, to which he alleges he is unlawfully subjected by the sheriff of Cook county. The petition alleges that an indictment was returned against the petitioner, with others, at the May term, 1889, of the criminal court of Cook county, for the crime of murder; that he was arrested on the 29th day of May, 1889; and that he is now, and ever since his arrest has been, continuously confined in the jail of said county under a capias issued upon said indictment. It is further alleged that at the June term of said criminal court, 1889, being the first term of said court after his indictment and arrest, the cause was continued, on motion of the state's attorney, to the July term succeeding of said court, and to which the petitioner in no wise consented; and, further, that at the July term, 1889, of said court, the cause was again continued to the August term, by the consent and agreement of the petitioner. It is then shown that at said August term, 1889, of said criminal court, the petitioner applied for a separate trial from his co-defendants, and, upon his application, such proceedings were had that a severance was ordered, and the petitioner awarded a separate trial upon said indictment. At said term, and upon such separate trial being granted, the petitioner alleges that he demanded an immediate trial of said indictment; but the court, at the instance of the state's attorney, and without any cause being shown therefor, and against the wishes and without the consent of the petitioner, continued said cause of petitioner to the September term, 1889, of said court, and at said September term the cause was by procurement of the people again continued. It is alleged that none of said continuances were granted upon the application of the petitioner; nor had he done anything at any of said terms of said court to work delay in the trial of said indictment, except the agreement to continue the cause at the July term; and that at both the August and September terms of said court he demanded an immediate trial, or release from custody, which was denied him. The petition alleges "that his (petitioner's) co-defendants on said charge of murder were placed on trial in one of the branches of the criminal court at the August term, 1889, of said court, and that said trial has been in progress from that time up to, and is in progress now;" that is, at the time of filing the petition for a habeas corpus. It is also alleged that there are three branches of the criminal court of Cook county in session; that they were so in session during the months of August and September, 1889, and two of such branches of said court have been in session ever since the finding of said indictment. It is also stated that there are connected with the office of state's attorney of said county the state's attorney and four assistant state's attorneys. It is alleged, therefore, "that the machinery of said court has been ample and adequate to grant petitioner his constitutional right of a speedy trial." The petition also contains proper allegations that the petitioner is not detained for any of the causes specified in section 21 of the habeas corpus act. Do the facts alleged in this petition, if admitted to be true to their fullest extent, entitle the defendant to be discharged from custody? If they do not, it is apparent that no case is made for issuing the writ, and that its issue would be of no avail. The application is based upon the supposed right of petitioner to be set at liberty in pursuance of paragraph 498 of the Criminal Code, (Starr & C. St.; Rev. St. Ill., Ed. 1889, c. 38, § 438,) which provides: "Any person committed for a criminal or supposed criminal matter, and not admitted to bail, and not tried at or before the second term of the court having jurisdiction of the offense, shall be set at liberty by the court, unless the delay shall happen on the application of the prisoner. If such court, at the second term, shall be satisfied that due exertions have been made to procure the evidence for and on behalf of the people, and that there are reasonable grounds to believe that such evidence may be procured at the third term, it shall have power to continue such case till the third term." The residue of the section relates to cases where the defendant has been admitted to bail, and has no application here. Gallagher v. People, 88 Ill. 335. There can be no question, upon the case made by the petition, that the defendant is entitled to be set at liberty, unless the delay in his trial upon said indictment "has happened on the application of the prisoner;" there being nothing shown that would authorize the continuance at the second term, as it is contemplated may be done at the instance of the people by the latter clause of the statute above quoted. The statute is in conservation of the liberty of the citizen, and is intended, as said by counsel, | is that, where the delay is occasioned by the to give effect to the clear constitutional right application of the defendant, the statute does to a speedy trial, and it is therefore to be con- not compel a trial at the second term, or restrued liberally. It nevertheless remains to quire that the defendant be set at liberty in be considered whether the delay in the trial case of the failure to put him upon trial thereof the defendant has happened because of any at, or until the necessity for delay occasioned act of the petitioner, or because of any appli- upon his application has ceased to exist. cation made by him. But it is urged that there are three branches It is shown by the petition, and conceded of the criminal court of Cook county in session, by counsel, that the first term at which the and that therefore the delay has not been the defendants could have been put upon trial result of the inability of the court to try this was the June term, 1889. Counting that defendant. It is also said that there are conterm, and the propriety of counting it may nected with the office of the public prosecutwell be questioned, in view of the subsequent or the state's attorney and four assistants. continuance by the agreement of the defend- The court in which the cause is pending is ants, the second term at which the defend- the criminal court of Cook county, and the ant could demand trial was the August term trial is proceeding in that court against the of the criminal court. It is conceded that co-defendants of the petitioner. Each branch the continuance at the July term was by the of said court, so far as its jurisdiction to try consent and agreement of the petitioner, and a particular cause is concerned, and to hear it cannot be said that the same was not upon and to determine causes in which it is enhis application. It is apparent that an agree- gaged, must be regarded as an independent ment of the parties to continue a cause is in court, separate and distinct from other effect an application to the court by each of branches of the court, as if it was in a sepa the parties for a continuance. It is shown rate jurisdiction. It follows that unless, in that the defendant was indicted with oth-cases where a separate trial is awarded, there ers for the crime of murder. At the August is some provision of law by which a part of term of said criminal court the defendants in the cause may be transferred to another such indictment were unquestionably enti- branch of said court, it must be tried in the tled to a trial, if such term is to be regarded branch of the court which has jurisdiction of as the second term after indictment at which the cause, and where the indictment is pendthe defendants could demand a trial. Upon ing. The trial of petitioner's co-defendants application of petitioner, he was at that term, being in progress in one branch of the court, for good and sufficient cause shown to the it is manifest that the indictment returned court, granted a separate trial, and thereupon against all of the defendants must remain in his co-defendants were placed upon trial un- that branch for the purposes of that trial. der said indictment, and ever since that time The state, as well as each of the defendants such trial has been, and is still, in progress. on trial, have a right to demand that the It became impossible, by reason of the sever- original indictment shall be present in court; ance procured by petitioner, that all of the and indeed the trial could not proceed in that persons indicted could be placed upon trial court in the absence of the indictment. The at the same time. It is impossible, in the indictment must be present in court, as formvery nature and constitution of the courts, ing the basis of the issue, while the trial is that two causes should proceed to trial at the in progress; and the jury are entitled to take same time in the same court. The co-defend-it with them, and have it in their custody, ants of the petitioner clearly had the right to when they retire to consider of their vera trial of the indictment against them. In-dict. Our attention has not been called to, deed, they, not having by any application created the necessity for any postponement or delay, might well demand that their cause proceed to trial in advance of that of their co-defendant, who had necessitated delay, either of their cause or of his own. It is apparent that if the petitioner may create the necessity for delay by his application to the court for a severance, and then demand trial by the court in which the cause is pending, and thereby delay the trial of the cause of his co-defendants, who have made no application, until the close of the second term, such codefendants must necessarily be discharged under this statute, and it follows that in every such case there would be an absolute failure of justice. We do not think this statute is susceptible of a construction which necessitates such results. The cause is to be The cause is to be tried at the second term, unless the delay shall happen on the application of the prisoner; and a fair construction of the statute nor are we aware of, any statute authorizing (130 Ill. 186) SAWYER et al. v. CAMPBELL et al. (Supreme Court of Illinois. Oct. 31, 1889.) ADMISSIONS BY DEED-EQUITY-PRACTICE-MORT GAGES-SALE. 1. The grantee who accepts and puts on record a quitclaim deed, which recites that the grantor has formerly conveyed the land to a third person, and that the quitclaim deed is made to clear away certain objections to the other deed, thereby admits that he claims title through his grantor's former grantee. 2. Pending a suit to establish an equitable lien on land, the defendants transferred to the complainant certain notes, secured by trust-deeds on said land, which he agreed to collect and apply upon his claim. This agreement was not filed, nor the suit dismissed, until after the land had been sold under the trust-deed for the benefit of the rendered invalid as against the owners of the land, complainant. Held, that the sale was not thereby who had bought subject to the trust-deed, and agreed to assume it. bid in by a third person for a sum not exceeding 3. Where property sold under a trust-deed is the secured note, the fact that the holder of the note gives the purchaser credit for the payment of his bid does not invalidate the sale. tain the decree. is prayed, and whose answer under oath has been 5. Where a defendant against whom no relief waived, appears and files a disclaimer, the immediate dismissal of the bill as to him is not reversible error, when no objection is made thereto by either party. the indictment? It is true that the various | son of any of the causes set forth in his petibranches of said court constitute, in a certain tion. The issuance of a writ of habeas corsense, but one court; but, as said before, the pus would, for the reasons above set forth, proceedings in said branches must, in the be of no avail, and it will therefore be denied. nature of things, be separate and independ- Writ denied. ent, so far as the trial of causes is concerned. Moreover, if it was possible to put the defendant upon trial pending the trial of his co-defendant upon the same indictment, before another judge and jury, such practice would inevitably lead to confusion, and possibly a conflict of jurisdiction. Presumably, the witnesses to establish the guilt of persons jointly indicted would largely be the same. Would the fact that they were in attendance upon one court be sufficient to excuse them from appearing in the other? Which court should have precedence, and which should delay its proceedings to await the convenience of the other? Again, the state's attorneys of the various counties of the state are charged by law with the prosecution of all indictments, and must have the right to be present and control and conduct the trial of the same. It is evident that he would be incapable of discharging this duty if defendants under the same indictment were put upon trial in different courts at the same time. It cannot be of importance that local 4. In a chancery suit the admission of incomauthorities may provide him assistance, since, petent evidence is harmless error, when there is after all, the official responsibility of conduct-sufficient competent evidence in the record to susing criminal trials is upon him. It may be urged that the two considerations last mentioned are matters of convenience only to the administration of the criminal law. But, if this is so, there lies at the foundation the insuperable obstacle to the trial of the defendant Woodruff, pending the trial of his co-defendants, that he and they alike must be tried upon the indictment returned by the grand jury, and in due form of law. By the statute, (paragraph 494, Crim. Code; Rev. St. Ill., Ed. 1889, c. 38, § 434,) the court is authorized to prolong the session of court in which a trial of a criminal case is pending until the verdict is rendered, and judgment therein is entered, even though the term at which the trial was BAKER, J. This was a bill, filed in July, commenced may have expired by law; but 1881, in the Cook circuit court, by Philetus in respect of causes on the docket, the trial Sawyer and George F. Harding, to quiet the of which has not been entered upon at the legal title, or remove clouds from the title, to lot expiration of the term, they are, by operation 2 in the subdivision of the E. of the S. W. of law, continued to the next term in course. of section 15, township 38, range 14, in Here, the court, having begun the trial of the other defendants to the indictment, may continue such trial until its final termination; but the defendant having created a necessity, upon his own motion, for the postponement of his trial, the cause as to him would be continued, by operation of law, from term to term, until the delay thus created shall cease to exist. It can make no difference that the court may, at each term, at the suggestion of the state's attorney, have marked the cause continued, so long as the legal impediment to the trial of petitioner, of his own creation, exists. It follows that the defendant, having created the necessity for the delay, as he might for good cause do, is not entitled to be discharged from custody by rea 6. After the hearing and decision of a suit to have a trust-deed and the sale thereunder annulled as being clouds upon complainant's title, it is within the discretion of the court to refuse complainant leave to amend his bill, so as to offer to redeem from the trust-deed. Error to circuit court, Cook county. Edward Roby and George R. Grant, for plaintiffs in error. Henry Decker and H. F. Vallette, for defendants in error. Cook county. Possession of the lot, seisin thereof in fee, and freedom of the premises from incumbrances were alleged in the bill. Ambrose Campbell, appellee herein, who was one of the defendants to the bill. claimed that he was the owner in fee of the land under and by virtue of certain sales made in conformity with the powers given in a trustdeed executed in 1868 by Frederick A. Weage to secure the payment to Charles W. Clayton of purchase money due on that part of said lot 2 lying west of the Vincennes road, and a trust-deed executed in 1868 by Hiram Canfield to secure the payment to Charles W. Clayton of purchase money due on that part of said lot lying east of said road, and in a trust-deed on the entire lot, made in 1877 by |