jury to determine, and, after carefully considering the entire record, we are unable to say that their verdict was not fully warranted by the evidence. They saw and heard the prosecuting witness, and were much better able to judge than we can be in relation to his fairness and candor, and as to the weight and credibility to which his testimony is entitled. They also saw and heard the defendants, and were better able to judge, from their appearance, conduct, and manner of testifying, how far their testimony was entitled to credit, and to what extent their interest in the result of the trial should be held to discredit them. We are unable to say, from anything appearing in the evidence, that the jury have been actuated by passion or prejudice, or that they were not warranted in finding that the defendants were proved guilty beyond a reasonable doubt.

It is insisted that a new trial should have been granted for the purpose of enabling Spahn to avail himself of the testimony of Mrs. Granger, who, as he claims, was the occupant of his front room on the night of the burglary. This contention cannot be sustained, for several reasons: First. The testimony of Mrs. Granger is not newly discovered evidence. It is not pretended that Spahn was not just as well aware, at and before the trial, of the facts to which Mrs. Granger could testify, and their relevancy and importance in making out his defense, as he was at the time he interposed his motion for a new trial. If she occupied his front room that night, he certainly knew it at the time; and if she was in a position to be able to testify to any facts tending to prove for him an alibi, he must have known that also. That he knew of said evidence before the trial is practically admitted, and be even claims that he had subpoenaed said witness to appear and testify at the trial. Again, he does not appear to have exercised due diligence in procuring said evidence. So long as the witness was subpœnaed, he should have applied to the court for a compulsory process to enforce her attendance, and, that failing, he should have applied to the court for a continuance in order to obtain her testimony. But having gone to trial in her absence, without exhausting all the means at his command to compel her attendance, the absence of her testimony is no ground for a new trial. Mrs. Granger's testimony, moreover, if produced, would be only cumulative, and would be by no means conclusive in its character. At best, it would have only been corroborative of the testimony already given by Spahn. It appears elsewhere in the evidence that there was a window to the bedroom in which Spahn claims to have spent the night, by means of which it would have been easy and practicable for him to have left his room without passing through the room where Mrs. Granger slept, and she, having been produced by order of the court for oral examination, admitted that she did not know whether Spahn left his room that night or not; that she slept most of the night; and that he might have left his room without her knowledge. The rule

is well settled that, to authorize a new trial on the ground of newly-discovered evidence, it must appear that the evidence has been discovered since the trial, and that the party has not been guilty of negligence in not discovering and producing it on the former trial. Schlencker v. Ris| ley, 3 Scam. 483; Crozier v. Cooper, 14. Ill. 139; Stetham v. Shoultz, 17 I. 99; Calhoun v. O'Neal, 53 Ill. 354; Wood v. Echternach, 65 Ill. 149; Tobin v. People, 101 Ill. 121; Isaacs v. People, 118 Ill. 538, 8 N.. E. Rep. 821; Klein v. People, 113 Ill. 596. Nor will a new trial be granted on the ground of newly-discovered evidence where such evidence is merely cumulative, and is not conclusive in its character. Laird v. Warren, 92 Ill. 204; Higgins v. People, 98 Ill. 519; McCollon v. Railroad Co., 94 Ill. 534; Abrahams v. Weiller, 87 III. 179; Schoenfeld v. Brown. 78 II!. 487; McKenzie v. Remington, 79 Ill. 388; Krug v. Ward, 77 Ill. 603; Chapman v. Burt, Id. 339; Fuller v. Little, 61 Ill. 21; Martin v. Ehrenfels, 24 Ill. 187; Bulliner v. People, 95 Ill. 394. The motion for a new trial, so far as it was based upon this ground, was properly overruled.

Error is assigned upon the refusal of the court to give to the jury one instruction asked on behalf of the defendant, stating the rule of law as to the prima facie presumption of innocence to which the defendants were entitled, and the extent to which the jury were bound by such presumption. The instruction refused stated a correct proposition of law, but there was no error in refusing it, as it was fully and completely covered by one of the instructions given to the jury at the instance of the defendants. The court, having once given to the jury the rule of law contended for clearly and adequately, was under no obligation to repeat the rule in another instruction. Thompson v. Duff, 119 II. 226, 10 N. E. Rep. 399; Baird v. Trustees, 106 Ill. 657; Chicago v. Stearns, 105 Ill. 554; Friedberg v. People, 102 Ill. 160; City of Bloomington v. Perdue, 99 Ill. 329.

The only remaining point to which our attention is called relates to certain remarks made by the assistant state's attorney in his argument to the jury. Those remarks, as shown by the bill of exceptions, were these: "Gentlemen of the jury, we know these two defendants are robbers and burglars. They have been in trouble before;" and, "We know this man Spahn is guilty, because he is indicted in another case in this court." The first of these remarks, so far as we are able to see, was not particularly exceptionable. There was before the jury the direct and positive testimony of an eye-witness that the defendants had committed the burg. lary and larceny for which they were be ing tried, and we are not prepared to say that, in view of such testimony, an assertion by counsel that he knew, or that the jury knew, that the defendants were robbers and burglars, was a species of comment upon the evidence which it was the duty of the court to restrain counsel from indulging in. Assuming the correctuess and truthfulness of the people's witness,— and that was an assumption which the

state's attorney was authorized to make in his argument, the guilt of the defendants of the offense charged was a fact known to counsel and the jury, so far as a fact can be known from human testimony. The residue of the remark, viz., that the defendants had been in trouble before, was justified, at least so far as Spahn, the only party now complaining, was concerned, by the fact appearing in his own testimony, that he was then under indictment in another case for robbery and receiving stolen property. That fact, as it may be observed, was disclosed by the defendant while on the stand, without objection by either party, and the bill of exceptions fails to show whether the disclosure was made on his direct or cross examination. The bill of exceptions, being the pleading of the plaintiff in error, must be taken most strongly against him, and it must therefore be presumed that the statement was a matter volunteered by him on his direct examination.

The second of the two remarks complained of is justly subject to criticism. The fact that Spahn was under indictment for another offense had no tendency to prove him guilty of the offense for which he was on trial, and it was therefore improper and illegitimate for counsel to argue or state to the jury that his guilt in this case was established or known because he was under indictment in the other. But some reliance must be placed upon the common sense and discrimination of the jury, where counsel seek to draw improper inferences from the evidence. While arguments of that character are not to be approved or looked upon with favor, still they will not ordinarily be deemed sufficient to necessitate a reversal of the judgment, unless they are of such a character as to raise an inference that the jury were probably misled or improperly influenced thereby. We do not think the remark complained of in this case is of that character. We find no material error in the record, and the judgment of the criminal court will accordingly be affirmed.

(137 III. 410)

ANTLE et al. v. SEXTON et al. (Supreme Court of Illinois. May 11, 1891. RIGHTS OF VENDEE-FALSE REPRESENTATIONS

EVIDENCE-DAMAGES.

1. Plaintiffs are entitled to recover for false representations, on which they relied, as to the quantity of land sold them by defendants, which land defendants held under a contract of sale from other persons, where this contract was in defendants' possession, and plaintiffs, though the tract was pointed out to them, did not know its boundaries, so as to inform them of its area.

2. The action in such case is not on the contract of sale held by defendants, though they agreed to assign it to plaintiffs, but on their false representations; and hence parol evidence is admissible to show such representations and the actual amount of land sold.

3. The subject-matter of the sale being the timber on the land, the measure of plaintiffs' damages is the difference between the value of the timber actually received and the value of what they would have obtained had the quantity of land been as represented.

Appeal from appellate court, third district.

Brown, Wheeler & Brown and Palmer & Shutt, for appellants. Patton & Hamilton and Robert Matheny, for appellees.

BAKER, J. This was an action on the case by appellee against appellants, to recover damages for fraud and deceit in the sale of timber standing on the land of one Jameson. His subjects of the sale were the timber that had been bought by appellants from Jameson, a saw-mill and its appurtenances, and 13 acres of timber on the Hadley land. The sum of $3,000 in gross was paid for the property, no separate prices being fixed for the different articles. The ground of fraud relied on was the representation that the tract of timber bought from Jameson contained 80 acres, when in fact the Jameson contract only conveyed to appellants 30 acres of timber. Appellees recovered in the circuit court judgment for $900, and that judgment was affirmed in the appellate court, (32 Ill. App. 437,) and the cause was brought here on a certificate of importance. In the written contract signed by the parties it is recited that the appellants agreed as follows: "(2) That they hereby assign and transfer to said Sexton & Bybee all interest which they have acquired in and to about 80 acres of saw timber in Gardner township, Sangamon county, Illinois, under a contract heretofore entered into by the said N. C. Antle & Bro. with one S. H. Jameson. * * # (4) They hereby agree to assign over to the said Sexton & Bybee the writ ten contracts with said Jameson & Hadley above referred to." It is suggested by appellants that where the means of knowledge are at hand, and equally available to both parties, and the subject of purchase is open to inspection, the purchaser cannot be heard to say that he was deceived by the vendor's misrepresentations; and fault is found that the court instructed the jury that, if the representation was made "in such a way and under such circumstances as to induce a reasonably prudent man to believe that the matter stated was true;" and if the plaintiffs, "in the exercise of reasonable prudence, believed the representation to be true, etc., it sufficiently sustained the action for deceit. The false representation consisted in misstating the terms of the Jameson contract, and the parties did not stand upon an equal footing in respect thereto. Said contract was in the possession of the appellants, and they had full knowledge of its provisions, while appellees did not have access to it, and it was withheld from their inspection upon a plausible pretext stated by appellants. The land upon which the timber grew was in a peculiar shape, and was contiguous to other timber lands, and, although the timber was pointed out to appellees, yet it is manifest that, without a knowledge of the boundaries and an actual measurement, no person could tell the number of acres in the tract. In numerous instructions given by the court the knowledge of appellants that the representation was false, and the fact that the same was made with the intent and for the purpose of deceiving and defrauding appellees, were made conditions precedent to the right of recovery.

Surely, where a misrepresentation is made as to a material fact, and such misrepresentation is made knowingly, and for the express purpose of deceiving and defrauding, and the party injured relies upon the statement made, and under circumstances which would induce a reasonably prudent man to so rely, there must be a right of action, at law, for fraud and deceit. To throw a purchaser out of court in such case, upon the plea he did not avail himself of the means of knowledge open to him, would be offering a premium on fraud, and would be destructive of confidence in business transactions. There was no error of which appellants can complain in instructing the jury as above indicated. Linington v. Strong, 107 Ill. 295; Endsley v. Johns, 120 Ill. 469, 12 N. E. Rep. 247; Schwabacker v. Riddle, 99 Ill. 343; Hicks v. Stevens, 121 III. 186, 11 N. E. Rep. 241.

In the opinion of the appellate court, by WALL, J, reference is made to the second clause of the written contract between appellants and appellees, which is quoted above, and also to the fact that at the trial the appellants moved to exclude from the jury all the oral evidence and representations referring to the subject-matter of said second clause. Said opinion then proceeds as follows: "The motion was overruled, and the point was presented by instructions asked for defendants, which were refused. It is urged that in the action of the court herein there was error, the position of counsel being that the writing was the best evidence of the contract; that it was the ultimate fact to be proved, and oral proof could not be substituted for the written evidence of any contract which the parties have put in writing; that the writing was tacitly agreed upon by the parties as the only repository and the appropriate evidence of their agreement. The action was not brought upon the contract, but upon false representations and deceit, used to induce the plaintiffs to enter into the contract, whereby they have been damnified. It is well settled that such an action will lie, though the parties may have entered into a written agreement, and though in such agreement there be a warranty or stipulation upon the point covered by the misrepresentations. 2 Add. Torts, § 1004; 1 Hill. Torts. §§ 4, 5, 12; 1 Chit. Pl. 137, note 4; Ward v. Wiman, 17 Wend. 193; Eames v. Morgan, 37 Ill. 260. And so it will lie if in the written contract there is no reference to the subject of the deceitful statements. In the present instance it is difficult to say what is the significance of the descriptive language used in the second clause as to the quantity of acres in the Jameson tract. It is said that they assign all interest which they have acquired in and to about 80 acres of saw timber, etc. The phrase is rather ambiguous. We are not required to determine whether it amounts to a warranty that the contract they held covered 80 acres; for, as we understand the law, it is immaterial whether the written contract omits any reference to the subject of misrepresentation, or whether it contains a provision of warranty in that respect. The theory of the action is that for the fraudulent and de

The

ceitful representation of the defendant, inducing plaintiff to make a contract which he would not have made otherwise, and by which he has been damaged, he should have his remedy, and this regardless of any remedy the law might afford upon the contract itself. As remarked by NELSON, C. J., in Ward v. Wiman, supra: fraud is not merged nor extinguished by the covenant, but afford an additional and more complete remedy to the party.' We are of opinion the ruling of the circuit court upon this point was correct." We concur in the view thus taken by the appellate court. We also agree with the views expressed in the appellate court opinion in respect to the measure of damages. Upon that matter, WALL, J., says: "The rule adopted was the difference in value between the saw timber obtained and what would have been obtained if there had. been 80 acres of it,-that is, calculate a shortage of 50 acres at the price per acre which it was shown to be worth,

and the verdict was $100 less than under the evidence might have been allowed. In Field, Dam. § 706, the rule is stated thus: 'In cases of fraudulent representations of the quality or quantity of property sold, the general rule of damages is the difference between the value of the property as it is, and what it would be worth if the representations had been true.' To the same effect, see 2 Sedg. Dam. marg. p. 559, where, after a similar state. ment of the rule with regard to personal property, the author adds: The same rule, I apprehend, holds upon the sale of real estate where the action is for deceit.' Citing Whitney v. Alliare, 1 N. Y. 305. So it was laid down in Drew v. Beall, 62 Ill. 164, where the deceit was in regard to quality.

Counsel for appellants urge that there was error in refusing evidence tending to show that, notwithstanding the shortage, plaintiffs got the worth of their money in the whole trade, but we are unable to agree with this position. The plaintiffs were entitled to the benefit of their bargain, as was said in Drew v. Beall, supra. There was no contract price on specific items. It was a general price for all, and they had a right to expect everything as represented. An expression in Hiner v. Richter, 51 Ill. 299, is quoted as supporting counsel's position, when it is said that the plaintiff would be entitled to the purchase money on the deficient quantity and interest thereon. It does not appear precisely what were the facts alleged, but from the language of the court it would seem that there was a contract price per acre, fixed by the parties, and, if so, the agreed rate would naturally furnish the basis of damages. Such was not the case here. We think there is no sound distinction between quality and quantity in this respect. The judgment of the appellate court is affirmed.

license and tax hawkers and peddlers, and the ordinances passed pursuant thereto, imposing a license tax, in so far as they operate on persons soliciting orders for goods for a principal in another state, are void, being in contravention of the federal constitution, vesting in congress the authority to regulate commerce between the states.

Appeal from circuit court, McLean county.

Sain Welty, for appellant. J. E. Pollock and A. J. Barr, for appellee.

SCHOLFIELD, C. J. This was an action for a penalty for violating a city ordinance. The case was commenced before a police magistrate, and on appeal from the judgment rendered by him to the circuit court of McLean county the following were agreed to be the facts:

The charter of the city of Bloomington confers power upon the common council "to license, tax, and regulate auctioneers, merchants, retailers, grocers, sample sellers, taverns, hawkers, peddlers," etc.; and the following ordinances were adopted by the common council pursuant thereto: "Be it ordained by the city council of the city of Bloomington: Section 1. That chapter 26, entitled 'Peddlers,' of the Revised Ordinances of the city of Bloomington, be, and the same is hereby, amended to read as follows: 'Section 1. No person shall sell, or attempt to sell, any goods, articles, or things by peddling, soliciting, hawking, public outcry, or at any temporary or uninclosed stand or place of business within the city, without first obtaining a peddler's license therefor: provided, the grower of farm and garden products, including meat and poultry, may, without license, sell the same by peddling. Sec. 2. Every person soliciting, canvassing, or taking orders for books, pictures, publications, or other articles shall be deemed within the scope of this chapter, and be required to take out a peddler's license; but no license shall be required for the delivery of an article where the order therefor was taken under a license. If, however, no license was taken out by the canvassers, the article shall not be delivered without a peddler's license: provided, that regular commercial travelers employed by wholesale houses, and selling staple articles of merchandise to the merchants of the city, shall not be deemed to be a peddler within the meaning of this article.' 'Sec. 8. Any violation of any of the provisions of this chapter, or any failure by any person to comply with this chapter, shall subject the offender to a fine of not less than three dollars nor more than fifty dollars for each offense.'"

"It is stipulated and agreed that the motion to dismiss the appeal in this case be withdrawn, and that the case shall be submitted as if the appeal was well and properly taken; that the defendant resides in Normal, Ill., and that shortly prior to the commencement of this suit he was acting as agent for a wholesale concern in the city of St. Louis, in the state of Missouri, and in their employ; that as such agent he was soliciting in the city of Bloomington, in the state of Illinois, orders for books published by the said con

cern, in St. Louis, Mo.; that, while soliciting orders as aforesaid, he was arrested and fined under the city ordinances of Bloomington for doing so without a license; that in the taking of such orders he proceeded to obtain the orders by going from house to house, and that after the obtaining of such orders the books were to be shipped to him from said concern at St. Louis to be delivered. It is further stipulated that the ordinance under which the fine was had in the court below may be considered a part of this stipulation, and may be here inserted. It is further stipulated that in this cause, and in any court to which this cause may be taken, the only question to be submitted to the court is whether or not the ordinance, under the facts agreed upon, is in violation of the constitution of the United States, and the federal statutes enacted thereunder, relating to 'interstate commerce.' CITY OF BLOOMINGTON, BY SAIN WELTY, Its Attorney. J. E. POLLOCK, Defendant's Attorney.

The court found that the ordinance, with that portion of the special charter of the said city upon which said ordinance was based, were in violation of the constitution of the United States, and the federal statutes enacted thereunder, relating to “interstate commerce." Judgment upon finding against the plaintiff. The plaintiff brings the case direct to this court by appeal, and assigns for error that-First, the court erred in finding for the defendant; second, the court erred in rendering judgment upon the finding.

We are unable to distinguish this case, in principle, from Robbins v. Taxing Dist., 120 U. S. 489, 7 Sup. Ct. Rep. 592. In that case Robbins was soliciting trade in Tennessee for a firm in Cincinnati, Ohio; and it was held that a law of Tennessee requiring him to take out a license in order to transact his business was in conflict with that clause of the constitution of the United States which gives to congress the power to regulate commerce between the states, and therefore void. Substantially the same class of goods was there sought to be sold as is here sought to be sold; only there, it would seem, the attempt to sell was at wholesale, while here it was at retail. But that is not dwelt upon as a matter of any significance in the opinion in that case; and when it is reflected that it is the locality of the sales with reference to the locality of the ownership of the goods, and not the quantities of the goods sold or the number of persons to whom sold, that determines whether giv en sales are to be regarded as belonging to interstate commerce, it is impossible to see how it could be. It is manifest that in that case the court must have regarded the license fee as in the nature of a tax, as contradistinguished from a mere police regulation imposed for the protec tion of the public against the harmful ten. dency, to the citizens of the district, of the business itself, as the supreme court_of Pennsylvania, in Com. v. Gardner, 133 Pa. St. 284, 19 Atl. Rep. 550, held that a license regulation in regard to hawkers and ped. dlers is; for, where the business itself may be regulated or suppressed in a communi.

ty because of its inherent harmful tendency to the citizens of such community, it may be regulated by a license without regard to the locality whence the property in which the business is conducted is to be brought. But it is impossible to say that there may be injury or danger to the public welfare in permitting sales by retail, and yet not in permitting sales of the same thing in the same locality by wholesale, since, in the very nature of things, the difference is not in principle, but in the extent of its exercise only. The fact that the ordinance makes no discrimination between those soliciting orders for houses in this state and those soliciting for houses in other states is of no moment. It was said in the Robbins Case: "It is strongly urged, as if it were a material point in the case, that no discrimination is made between domestic and foreign drummers,-those of Tennessee and those of other states; that all are taxed alike. But that does not meet the difficulty. Interstate commerce cannot be taxed at all, even though the same amount of tax should be laid on domestic commerce, or that which is carried on solely within the state. This was decided in the case of State Freight Tax, 15 Wall. 232. The negotiation of sales of goods which are in other states, for the purpose of introducing them into the state in which the negotiation is made, is interestate commerce. The judgment is affirmed.

(138 Ill. 85)

PEOPLE ex rel. PAVEY V RYAN. (Supreme Court of Illinois. May 11, 1891.) EXEMPTIONS FROM TAXATION-HOSPITALS-PUBLIC

CHARITIES.

The exemption of a hospital from taxation by the board of supervisors, upon the affidavit

of a doctor as to what is not assessed at other places, and upon a petition for such exemption, is unauthorized, under Rev. St. Ill. 1874, p. 873, requiring proof that the hospital is actually and exclusively used for public charity, and not leased or otherwise used with a view to profit; and the evidence should be preserved in the record.

Petition to reverse order of board of supervisors.

SCHOLFIELD, C. J. This case is brought here by the auditor of public accounts, pursuant to the provisions of the third clause of section 97 of the revenue act, (Rev. St. 1874, p. 873,) to determine the validity of the act of the board of supervisors of Sangamon county in declaring what is styled in the record "The Wabash Hospital" exempt from assessment for taxation. The law claimed to exempt property from taxation must be strictly construed, and it devolves upon those claiming that specific property is thus exempt to clearly show that it is within the contemplation of the law. Cooley, Tax'n, (1st Ed.) p. 146; Memphis Gas-Light Co. v. Taxing Dist. of Shelby Co., 109 U. S. 398, 3 Sup. Ct. Rep. 205; People v. Commissioners of Taxes, 95 N. Y. 554; Montgomery v. Wyman, 130 Ill. 17, 22 N. E. Rep. 845; In re Swigert, 123 Ill. 267, 14 N. E. Rep. 32; People v. Anderson, 117 Ill. 50, 7 N. E. Rep. 625. So much of the revenue act as au

thorizes the exemption of property from assessment for taxation will be found in the seventh clause of section 2, (Rev. St. 1874, p. 857,) and the property thus declared to be exempt is thus described: "All property of institutions of purely public charity, when actually and exclusively used for such charitable purposes, not leased or otherwise used with a view of profit." We may infer from the mere name, perhaps, that the Wabash Hospital is an institution for the benefit of afflicted persons, to some extent; but we cannot, nor could the board of supervisors of Sangamon county, take judicial knowledge, in the absence of evidence in that respect, that it comes within the contemplation of the language of the revenue act. Ubi supra. There appears to have been no evidence before the board of supervisors upon the subject, for the affidavit of Dr. Morehouse, as to what is not assessed at other places, is not any evidence that this hospital is such an institution as the statute intends shall be exempt from taxation; and there was nothing else before the board having even the semblance of evidence, for the only other paper before the board-the petition of certain employes of the road-does not assume to prove anything,-is a mere request, unsupported even by an affidavit, that the board shall make an order exempting the institution from taxation. The order was clearly unauthorized by the evidence be fore the board, and it is therefore reversed. To authorize such exemption, it must be proved to the board that the hospital is, in the language of the statute, "actually and exclusively used for public charity, and not leased or otherwise used with a view to profit, "and the evidence should be preserved in the record. Order reversed.

(137 Ill. 485)

MICHAEL et al. v. MICHAEL et al. (Supreme Court of Illinois. May 11, 1891.) SERVICE BY PUBLICATION-EQUITY-PLEADING.

1. Where a notice of publication states the venue in a certain county, is entitled of the circuit court of that county, and states that a bill has been filed in said court, and a summons issued out of it, it sufficiently shows the place where the summons is returnable, within the requirement of section 12 of the Illinois chancery act.

2. Where the certificate of the publisher states that notice was first published on August 18th, and the clerk certifies that he mailed a copy of it to defendants on "August 17th, and within ten days after the first publication," the statement as to the date, showing that it was mailed before publication, is senseless, and will be rejected,

and the certificate deemed sufficient.

3. Where service by publication is duly made, it is not necessary, under the Illinois chancery act, that defendants be ruled to answer the bill.

4. Where there is no rule to answer crossbills against defendants therein, no default taken, and no order entered taking such cross-bills for confessed against them, it is error to grant the relief prayed therein.

Error to circuit court, Vermilion county. J. B. Mann, for plaintiffs in error. Geo. R. Tilton, for defendants in error.

BAKER, J. This was a bill in chancery filed by Catherine L. Michael, James K. Michael, John B. Michael, Martha A. Mace, Mary H. Smith, and Jane Taylor against