barred a foreclosure, it, for the same reason, barred a redemption from the deed, regarded as a mortgage; for the right to redeem and the right to foreclose are reciprocal, and when the one is barred the other is barred. Locke v. Caldwell, 91 Ill. 417; Jones, Mortg. (2d Ed.) § 1146, and cases cited in note 1 to that section. Inasmuch as the deed apparently invested the ancestor of appellees with the complete title to the interest in the land which it purported to convey, the burden was upon appellant to show that in fact it did not have the effect it purported. He therefore attempted to establish, and now insists that he has establshed, not that the deed is void at law, but that he has an equity in the land, notwithstanding the apparent absoluteness of the deed to the contrary. What is that equity? Not to say that the deed was void or vested no title, nor yet to say that it has since become void, and therefore that the title vested by the deed has terminated, and so has reverted,-there is not the slightest ground for that pretension,-but to redeem from the deed, as a mortgage; that is, by paying the debt and interest thereon for which the deed was given as security to have a conveyance back to him of the legal title. Heacock v. Swartwout, 28 Ill. 291. Since the deed is absolute on its face, no affirmative action is required by those who hold under it. Unless it shall be set aside, their title is per. fect. Appellant's right, being simply the equity of redemption, is necessarily barred when the statute of limitations bars a bill to redeem. His equity being gone, all of his rights are gone, and the legal title must prevail. While the presumption from the lapse of time is that that which upon its face professes to be a mortgage is discharged because the debt it secures is presumed to be paid, the presumption from lapse of time is that that which, upon its face, professes to be an absolute deed is so in fact; and in neither case, the statute of limitations being pleaded and relied upon as a defense, as it is here, will a court of equity, any more than a court of law, allow the contrary to be proved. Westfall v. Westfall, 16 Hun, 541. The decree is affirmed. ОнIо & M. Ry. Co. v. COMBS.1 (Supreme Court of Illinois. June 18, 1892.) APPEAL-REVIEW-DAMAGES. Where there is evidence tending to show that plaintiff has sustained some damage, a judgment in his favor will not be reversed by the supreme court on the ground that the amount of the judgment is excessive, since the measure of damages is a question of fact upon which, under the practice act, the decision of the Illinois appellate court is final. Appeal from appellate court, fourth district. Action on the case by W. S. Combs against the Ohio & Mississippi Railway Company to recover damages for injuries to plaintiff's land and crops by reason of the construction and maintenance of an Reported by Louis Boisot, Jr., Esq., of the Chicago bar. SCHOLFIELD, J. This appeal is from a judgment of the appellate court of the fourth district, affirming a judgment of the circuit court of St. Clair county in an action on the case by appellee against appellant for injuring land and crops of appellee by constructing and maintaining an embankment in the place of a former trestle across a natural water course, so as to cause the water flowing therein to run upon the land of appellee. Appellant pleaded "not guilty." By agreement of parties, the cause was tried by the court without the intervention of a jury. No written propositions of law were submitted to the court during the trial to be passed upon. Exceptions were taken to the rulings of the court in rendering judgment and in overruling motion for new trial. It is not contended that it is within our jurisdiction to pass upon the questions of fact, and the only question of law raised is whether the evidence tends to sustain the judgment. In passing upon this question we cannot weigh evidence and determine questions of preponderances. If there is competent evidence, which, by itself, unaffected by contradictory evidence by other witnesses, or even contradictory evidence by the same witnesses, would have authorized the judgment as rendered, it is sufficient. But whether one statement is disproved by another statement, or whether the testimony of one witness is more or less intelligent and satisfactory than that of another witness, is purely a controversy of fact, into which we are precluded by the practice act from entering. The abstract shows that D. C. Collins testified on the trial: "Have been one of highway commissioners of Collinsville township. Know Little Canteen creek. It came down from the bluffs, ran past Casey ville about a mile, where it forked, one branch running north, and emptying into Cahakia creek; the other south, through the trestle in the O. & M. track, and emptying into Spring lake. While this trestle remained open, there was no trouble. When they filled this trestle, the water was forced in its natural channel north to such an extent that the commissioners had to raise their grade. The grade was made from the washing of the bluffs, which was very light soil, intermixed with sand, and not sufficient to hold this body of water which was forced north, and jerked away our grade, and overflowed the land of Mr. Combs; and, this land being below the grade of our road, the water remained upon it, having no outlet, until it was absorbed by the sun or the earth." The abstract also fur. ther shows that Henry Thompson testified upon the trial: "Live in Collinsville, Madison county. Know Little Canteen creek forty years. The closing of the trestle stops the flow of water south, and causes it to run down across the bottoms, and forces it up the slough onto Combs' land. It backs the water up onto Combs' land which should run the other way. That's my idea of it. I never knew Combs' land to overflow before the building of the O. & M. R. R., except when the Mississippi river was backing out. The Mississippi backed out in 1844, 1852, and 1858. Mr. Combs' land has been overnowed several times since the trestle was closed." Other evidence clearly shows that the trestle was closed by appellant, and there was also other evidence tending to show that appellee was to some extent damaged by means of the water thrown upon his land as thus described by Collins and Thorpe. How much damage was thus caused was, beyond question, to be determined by the court acting in the place of the jury, like any other question of fact; and therefore, even if it be conceded that no view that can be reasonably taken of the evidence warrants the amount assessed by the court, still, there being evidence of some damages, this gives us no jurisdiction to intervene, for that manifestly depends, not upon the tendency, but upon the effect, of the evidence, when all shall be considered; and we have accordingly uniformly refused to review the question whether the damages are excessive in cases like the present. Furnace Co. v. Magill, 108 Ill. 656; Railroad Co. v. Becker, 84 Ill. 483; City of Joliet v. Weston, 123 Ill. 641, 14 N. E. Rep. 665; City of Salem v. Harvey, 129 Ill. 344, 21 N. E. Rep. 1076. The judgment is affirmed. SMITH V. PEOPLE.1 (Supreme Court of Illinois. June 18, 1892.) MURDER-EVIDENCE-INSTRUCTIONS. 1. Upon trial for murder, the evidence tended to show that deceased was killed by a stab given during or soon after a fight in which he and defendant and several others took part; that defendant had used threatening language towards deceased shortly before, and had then showed a knife; that defendant struck deceased with a knife during the fight, and that after the fight defendant deliberately went up to deceased, and stabbed him. Held, that the evidence justified a conviction for murder. 2. It is error to instruct the jury that "if they shall believe from the evidence, beyond a reasonable doubt, that the killing has been proven as charged, then any defense which defendant may rely upon in justification or excuse of the act, or to reduce the killing to the grade of manslaughter, it is incumbent on the defendant to satisfactorily establish, unless the proof thereof arises out of the evidence produced against him," since such instruction deprives defendant of the benefit of any reasonable doubt as to the grade of the offense. Alexander v. People, 96 Ill. 96, followed. 3. An instruction that "if one person attacks another without justifiable cause, and * if the weapon used were a deadly weapon, it is reasonable to infer that the party intended death, and if he intended death, and death was the consequence of his act, it is murder," is erroneous, since intentional killing without justifiable cause, if done without malice and without deliberation, is only manslaughter. 4. It is not reversible error to instruct the jury orally as to the form of a verdict for manslaughter, even though the form of the verdict for murder is given in writing. 1 Reported by Louis Boisot, Jr., Esq., of the Chicago bar. Error to circuit court, Hamilton county; E. D. YOUNGBLOOD, Judge. Indictment of Philip Smith for murder. Defendant was convicted, and brings error. Reversed. T. B. Stelle and A. M. Wilson, for plaintiff in error. I. H. Webb, State's Atty., and George Hunt, Atty. Gen., for the People. WILKIN, J. At the September term, 1891, of the circuit court of Hamilton county, plaintiff in error was convicted of the crime of murder, and sentenced to the penitentiary for a term of 20 years. From that conviction he has sued out this writ, and, under the assignments of error, urges four grounds of reversal: (1) The refusal of the trial court to give instructions asked by plaintiff in error. (2) The giving of erroneous instructions at the request of the people. (3) Improper remarks to the jury by attorneys for the prosecution. (4) The verdict of the jury is contrary to the law and the evidence. The last of these points will be considered first. The indictment charged the defendant with murdering one Benjamin Franklin Burnett, by stabbing him with a knife, on the 24th of December, 1890. On the night of the homicide there was a gathering of people at a small church in the village of Walpole, in said Hamilton county, for the purpose of distributing presents from a Christmas tree. The house was very much crowded, and the evidence shows that the deceased and his brother had been designated by some one to preserve order. The deceased was, however, intoxicated, and himself contributed to the confusion and disorder in the house. Others present were also intoxicated, and the defendant was at least, to some extent, under the influence of liquor. Shortly before the stabbing, deceased and a son of the defendant had a quarrel, and blows had passed between them. The evidence shows that during the evening deceased displayed a knife, and his brother a revolver. The defendant was disposed to quarrel with these parties about the difficulty with his son, using profane and threatening language, and some of the witnesses say he also displayed a knife. A fight finally occurred inside, but near the door, of the church, in which several persons seemed to be engaged. There is evidence in the record on behalf of the people tending to show that during that fight the defendant struck deceased with a knife. Soon after this fight the parties were seen outside the building, and the testimony of at least two witnesses introduced by the prosecution shows positively that, being several feet from each other, the defendant deliberately approached the deceased, and struck him with a knife in the region of the stomach. There is no dispute as to the fact that Burnett was during that evening wounded by being stabbed in the abdomen, and that he died the next day from the effects of that wound. The defendant did not testify upon the trial, but it appears from the evidence of the sheriff of the county, and perhaps other witnesses, that, when told that Burnett had been mortally wounded that night, he denied having used any weapon whatever in the difficulty at the church, and stated that he had no knife in his possession at that time. It is impossible to determine from the evidence just when the stabbing took place,-whether in the house or after the parties had gone out, but we think the jury was justified from all the evidence in reaching the conclusion that it was done by the defendant. The difficulty is to determine, from the testimony of the numerous witnesses, whether it was done in self-defense, in a sudden heat of passion, during the fight, or after the parties had been separated; in other words, whether the homicide was justifiable manslaughter or murder. More than a dozen eyewitnesses to the affray testified on either side. The evidence of some of these tend to show that the killing was done in self-defense. That of others is to the effect that it was done while the parties were engaged in a fight, or at a time when the deceased was in the act of assaulting the defendant, while, as already said, others testified that the niortal blow was given at a time when there was no struggle between the parties, and without any immediate provocation. In this irreconcilable conflict the jury, properly instructed as to the law, would be the better judges of the weight of the evidence of the several witnesses, and we are not disposed to interfere with the verdict finding the defendant guilty of murder, on the ground that the evidence is not sufficient to prove that crime. A much graver question arises when we come to consider the instructions given to the jury. We have often said, both in civil and criminal cases, that when the evidence is conflicting, and would authorize the jury to find for either party, the instructions should be accurate, to sustain a judgment rendered upon the verdict. This case calls for the application of that rule. ting the homicide, he is entitled to the benefit of that doubt, and can only be convicted of the lesser offense or acquitted. This instruction is therefore erroneous, not only in requiring the defendant to make satisfactory proof of the mitigation or defense, as did the condemned instruction in Alexander v. People, supra, but puts the burden upon him, unless satisfactory proof of such mitigation or defense arises out of the evidence on behalf of the people. It can well be seen from the evidence in this record that a jury might believe beyond a reasonable doubt that the killing was done as charged, and yet entertain serious and well-grounded doubts as to whether the fatal wound was not inflicted in the sudden heat of passion, or even in self-defense. But here they were told that such mitigation or defense inast satisfactorily appear from the evidence introduced by the prosecution, or be satisfactorily proved by the accused. The instruction is misleading, and, if observed by the jury, deprived the defendant of a clear legal right. The eighth of the same series of instruction is equally vicious. It is as follows: "The court instructs the jury if one person attacks another without justifiable cause, and from the violence used death ensues, the question which arises is whether it be murder or manslaughter. If the weapon used were a deadly weapon, it is reasonable to infer that the party intended death; and if he intended death, and death was the consequence of his act, it is murder." Suppose the defendant did attack the deceased without justifiable cause, "but without malice, express or implied, and without any mixture of deliberation whatever," and by the use of a deadly weapon killed him, would he be guilty of murder? If so, what is the meaning of the statute defining" manslaughter" when it says: "It must be voluntary, upon a sudden heat of passion," etc.? In every case of manslaughter the attack is without justifiable cause, but, with due regard to the frailties of human passion, the statute says the killing of a human being, under the circumstances therein stated, shall be manslaughter only. This instruction makes the intention to kill the distinguishing feature of murder. That is not the test. A person may intentionally take human life without being guilty of any crime, and certainly he may do so and not be guilty of murder. Under this instruction, if the jury believe, beyond a reasonable doubt, that the plaintiff killed the deceased without justifiable cause, with a deadly weapon, they had no chioice but to find him guilty of murder. In the giv. ing of both these instructions there was manifest error, and it cannot be said that other instructions, given at the instance of either the people or the defendant, cured that error. The most that can be said is that other instructions correctly stated the law of the case, but whether the jury followed them, uninfluenced by the erroneous ones, or not, no one can tell. The seventh of the people's instructions is as follows: "The court instructs the jury if they shall believe from the evidence, beyond a reasonable doubt, that the killing of Burnett has been proved as charged, then any defense which defendant may rely upon in justification or excuse of the act, or to reduce the killing to the grade of manslaughter, it is incumbent upon the defendant to satisfactorily establish such defense, unless the proof thereof arises out of the evidence produced against him." This instruction is clearly wrong, and was expressly condemned in Alexander v. People, 96 Ill. 96. The statute is: "The killing being proved, the burden of proving circumstances of mitigation, or that justify or excuse the homicide, will devolve on the accused, unless the proof on the part of the prosecution sufficiently manifests that the crime committed only amounts to manslaughter, or that the accused was justified or excused in committing the homicide" If the proof on the part of the prosecution, though clearly establishing the homicide, leaves a reasonable doubt in the minds of the jury as to whether the killing is murder or only manslaughter, or as to whether the accused was justified or excused in commit.of the facts of the case. The ninth instruction is subject to the criticism of being rather an argument than the statement of a rule of law applicable The twenty-fourth was an oral instruction as to the form of a verdict, in case the jury found the defendant guilty of manslaughter. The complaint is not that the instruction was given, but that it was not reduced to writing, the argument being that the form of the verdict for murder being in writing, and that for manslaughter not, the jury would be liable to disregard or attach less importance to the latter than the former, and be impressed with the idea that the court regarded the case as one of murder rather than manslaughter. It was certainly irregular to instruct the jury orally on any feature of the case, unless it was done by agreement. We cannot say, however, that there was reversible error in giving the form of the verdict as to the lesser offense orally. If counsel for defendant desired to have the jury instructed as to the form of their verdict for manslaughter, they should have prepared an instruction of that kind, and submitted it to the court. We find no substantial error in the refusal of instructions asked by the defendant. The point that improper remarks were made to the jury by counsel for the prosecution is not presented upon this record, there being no objections at the time, and no ruling of the trial court upon that subject to which exceptions were preserved. For the error committed in giving the seventh and eighth instructions on behalf of the people the judgment of the circuit court will be reversed, and the case will be remanded for another trial. ZICK et al. v. GUEBERT et al.1 (Supreme Court of Illinois. June 18, 1892.) FRAUDULENT CONVEYANCES-ACTION TO SET ASIDE. A sale of land for two thirds of its value, though made by an insolvent with intent to defraud his creditors, will not be set aside where it appears that the vendee neither participated in the vendor's intent nor knew of his insolvency. 41 Ill. App. 603, affirmed. Appeal from appellate court, fourth district. Bill by John Zick and Theda Boekhoff against Sopha, Helena, and Rudolph J. Boekhoff, and William Guebert, to set aside two deeds. Complainants obtained a decree setting aside one of the deeds, but as to the other deed the bill was dismissed, and this judgment was affirmed by the appellate court. Complainants appeal. Affirmed. The other facts fully apppear in the following statement by CRAIG, J.: This was a bill in equity, brought by John Zick and Theda Boekhoff against Sopha, Helena, and Rudolph J. Boekhoff and William Guebert to set aside a deed executed on the 27th day of June, 1885, by Helena Boekhoff to William Guebert, in which she conveyed an undivided onefourth interest in and to certain property in Red Bud, Randolph county, to Guebert; also to set aside another deed, bearing the same date, executed by Ru. dolph J. Boekhoff, conveying to Guebert 1Reported by Louis Boisot, Jr., Esq., of the Chicago bar. an undivided one-fourth interest in the same property. The bill also prayed that the property be sold in satisfaction of two certain judgments rendered at the September term, 1885, of the Randolph circuit court, one for $2,092, in favor of complainant Theda Boekhoff against Sopha and Helena Boekhoff; and the other in favor of complainant John Zick for $3,232.71, against Sopha, Helena, and Rudolph J. Boekhoff. The ground relied upon on the bill to set aside the deeds was that they were made to hinder, delay, and defraud creditors. The defendant William Guebert put in an answer to the bill, in which he denied all the substantial allegations of the bill except the execution and delivery of the deeds. A replication was filed to the answer, and the cause proceeded to a hearing on the pleadings and evidence, and the court rendered a decree setting aside the deed of Rudolph J. Boekhoff, and subjected the interest he held in the premises to sale in satisfaction of the judgment of complainant John Zick, but as to the deed made by Helena Boekhoff the bill was dismissed. The decree, on appeal, was affirmed in the appellate court. The property involved, Helena and Rudolph J. Boekhoff inherited from their father, who died intestate, leaving a widow, Sopha Boekhoff, and four chil dren. The widow, Sopha, was engaged in the mercantile business in Red Bud in her own name, but Helena, Rudolph, and one of her brothers assisted her in the store. It also appears that Helena and Rudolph had become liable for certain debts of Sopha by executing certain notes with her, and at the time the deeds were executed they were, as appears from the evidence, indebted more than all the property they owned was worth. It also appears that Sopha Boekhoff was largely indebted, and her creditors were pressing for payment. On the 29th day of June, 1885, Sopha Boekhoff made an assignment of all her property to William Guebert, the defendant, for the benefit of creditors. An inventory attached to the assignment showed her assets to be $9,796.35, while the liabilities amounted to nearly $16,000. Wind, Hartzell & Simpson, for appellants. Gordon & Allison, for appellees. CRAIG, J., (after stating the facts.) As the validity of the deed from Rudolph J. Boekhoff to the defendant Guebert is not involved in this appeal, it will not be necessary to allude to the evidence bearing on that branch of the case except so far as the evidence connects the execution of that instrument with the execution of the deed of Helena Boekhoff. If Willlam Guebert purchased in good faith for a valuable consideration, he is entitled to be protected in his purchase. In Spicer v. Robinson, 73 Ill. 519, where the validity of a conveyance alleged to be fraudulent was involved, it was held, although a conveyance of land is made to defraud the grantor's creditors, an innocent purchaser for a sufficient consideration, without notice of the fraud, will be protected. Upon an examination of the evidence bearing upon the purchase in question, we think it falls within the rule indicated. It ap. pears from the evidence that on Saturday, June 27, 1885, one Wimrich called at the store of Sopha Boekhoff for the purpose of collecting certain notes he held, amounting to $700. He presented the notes and threatened to attach unless he was paid. Helena made some efforts to borrow the money to pay the debt, but failed. Then she called on Guebert, and offered to sell the property in question. In reference to this interview Helena testified, and in this she was corroborated by Guebert, as follows: "I told Guebert I was going to pay Wimrich with the money; told him I needed the money right off; that Wimrich demanded his money, and was threatening to attach." The price Helena placed on her property was $1,500, but she finally sold for $1,000, and received $500 in cash and Guebert's note for $500 more. Upon receiving the money and note she executed and delivered to Guebert a deed of the property. It is claimed in argument that the deed was not made until Sunday, the 28th of June. There are some expressions in the evidence of Helena which seem to support that view, but from her entire evidence, and also from the testimony of the defendant, we think it is plain that the deed was executed on Saturday, the day it bears date; that the money and note were paid over on the same day, and the sale was fully consummated. At the time the trade was closed it nowhere appears that Guebert knew that Helena Boekhoff was insolvent, or that she had any design of transferring her property to avoid the payment of creditors. The trade was an ordinary transaction, where one is pressed for money and anxious to sell and the other buys because he regards the property cheap and a good bargain. Such transactions are of frequent occurrence, and it has never been supposed that a sale of that character was fraudulent. It is perhaps true that the premises were worth more than the defendant paid, but there was no such inadequacy of price as would indicate fraud, and hence the price, although somewhat inadequate, did not affect the validity of the transaction. On the next day after the deed was executed, which was Sunday, June 28th, Sopha Boekhoff made an assignment of all her property to the defendant Guebert, and at the same time he purchased from Rudolph J. Bockhoff his interest in the premises in dispute. While it may be true that the facts and circumstances under which the defendant made the last purchase may be sufficient to authorize the finding that he was not a bona fide purchaser from Rudolph J. Boekhoff, these facts and circumstances could have no hearing on the previous transaction. When the purchase was made of Helena no assignment had been made by Sopha, nor was an assignment contemplated, nor had Rudolph proposed to sell his interest in the property. Some evidence was introduced tending to show that there was an understanding or agreement between the defendant and Helena, when the deed was executed, that defendant should so convey to her upon repayment of the amount she had received; but this is denied by defend. ant and Helena, and we think the preponderance of the evidence sustains the finding of the court that no such agreement was made. After a careful consideration of all the evidence, we are of opinion that the decree of the circuit court is fully sustained by the evidence. The judgment of the appellate court will therefore be affirmed. CALDWELL v. Village OF CARTHAGE. (Supreme Court of Ohio. April 26, 1892.) CONDEMNATION FOR STREET PURPOSES RESOLUTION OF COUNCIL DECLARING NECESSITY - DUR PROCESS OF LAW. 1. The preliminary resolution declaring the necessity of an improvement, which the council is required to pass, give notice of, and publish, as provided in section 2304 of the Revised Statutes, does not apply to the condemnation of private property for opening, extending, straightening, or widening a street. 2. Where land is appropriated for a street improvement, an assessment by the foot front of the property bounding and abutting upon the improvement, to pay the cost thereof, without the passage, notice, and publication of such preliminary resolution, as thus provided, will not thereby be a taking of property without due process of law, in violation of section 1 of the fourteenth amendment of the constitution of the United States. (Syllabus by the Court.) Error to circuit court, Hamilton county. Affirmed. The facts fully appear in the following statement by DICKMAN, J.: The plaintiffs in error, J. Nelson Caldwell, Frank Caldwell, Fannie E. T. Caldwell, Marion L. Caldwell, and Cornelia A. Caldwell, commenced the original action in the court of common pleas against the defendant in error, the village of Carthage, E. E. Ross, clerk of said village, and Fred Raine and John Zumstein, respectively county auditor and county treasurer of Hamilton county, Ohio. The village of Carthage, in said county, in order to widen Taylor street in said village, appropriated a strip of ground belonging to the plaintiffs, 33 feet wide, along the west side of Taylor street, for its entire length. To pay the cost and expenses of the appropriation a special assessment was levied, by the foot front, upon the lots and lands of the plaintiffs bounding and abutting upon the improvement, and the original action was brought to enjoin the collection of the assessment. The court of common pleas held the assessment against the plaintiffs and their property to be void, and perpetually enjoined the defendants from collecting, or attempting to collect, and from demanding, certifying, or receiving, any of said assessment from any of the plaintiffs, to all of which the defendants, by their counsel, excepted. The cause was appealed by the defendants to the circuit court, and that court found the facts upon the matters in issue, and rendered judgment as follows: "(1) The village of Carthage is duly incorporated, and is situated in a county containing a city of the first grade of the first class; that on October 1, 1889, there was, and for many years prior thereto had been, in said village a certain street |