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Opinion of the Court.

APPEAL from the Superior Court of Cook county; the Hon. SIDNEY SMITH, Judge, presiding.

Mr. CONSIDER H. WILLETT, for the appellant.

Messrs. BOUTELL, WATERMAN & BOUTELL, for the appellees.

Mr. JUSTICE CRAIG delivered the opinion of the Court:

This was an action of ejectment, brought by appellant, to recover the south half of a certain lot in Chicago.

But two questions arise upon the record: First, did the court err in denying plaintiff the right to cross-examine defendants' agent, who stated on oath that defendants did not obtain title through a common source; and second, were the contents of an abstract of title competent evidence.

The plaintiff filed an affidavit that he claimed title through a common source with the defendants, to obviate the necessity of showing a regular chain of title from the government to himself. The defendants' agent, however, denied on oath that defendants obtained title through a common source with the plaintiff. When counsel for the plaintiff undertook to cross-examine the agent of defendants upon the question of source of title, upon objection the court ruled that plaintiff's counsel had no right to cross-examine.

Section 25 (Rev. Stat. 1874, page 445,) provides: "If the plaintiff, or his agent or attorney, will state on oath, upon the trial, that he claims title through a common source with the defendant, it shall be sufficient for him to show title from such common source, uniess the defendant, or his agent or attorney, will deny on oath that he claims title through such source, or will swear that he claims title through some other source." From the reading of the statute it does not seem to have been contemplated by its enactment that either plaintiff or defendant should be subject to a cross-examination. Nor are we able to perceive that any good could be accom

Opinion of the Court.

plished if a cross-examination was allowed. We think the common practice, where a plaintiff desired to avail of the statute, has been to file an affidavit that he claims title. through a common source, and this of necessity would cut off all cross-examination, as there can be no cross-examination where an affidavit is filed. And if the practice would deny a cross-examination where an affidavit is filed, why should it be allowed when the party appears before the court and states the same facts on oath? We do not understand that the statute contemplates that an issue should be formed, and evidence introduced pro and con, whether the parties claim through a common source. Such was not the object of the statute. But on the other hand, where the plaintiff, on the trial, will state on oath that the parties claim title through a common source, the necessity for tracing title from the gov ernment to himself is obviated, unless the defendant, or his agent, will deny on oath that he claims title through such common source. A simple denial on oath is all that is required to prevent plaintiff from availing of the statute. If it was in issue for trial whether the parties claim through a common source, of course every witness who might testify would be subject to cross-examination. Yet such is not the case. An oath of this character is not evidence. Under the statute, a statement on oath, by either party, is in the nature of an affidavit for a continuance, where no cross-examination is ever allowed. Hartshorn v. Dawson, 79 Ill. 109, has been cited as in authority, but the question was neither raised nor decided in that case, and hence the decision can have no bearing whatever. We think the decision of the circuit court on the point was correct.

We now come to the second question. The rule is well settled that where original evidence, such as a deed or other document, is lost or destroyed, secondary evidence may be introduced. But we do not regard an abstract of title as original evidence. Section 29, of chapter 116, of the Revised


Statutes of 1874, provides that an abstract of title, made in the ordinary course of business, when the originals of any deeds or other instrument in writing, or records of any court relating to any lands, are lost or destroyed, or not within the power of the party to produce the same, and that the records thereof are destroyed, by fire or otherwise, may be used in evidence. The deed or record is the original evidence, under this statute, and when they are lost or destroyed. and the record thereof also destroyed, then resort may be had to an abstract, made in due course of business, before such records were destroyed, which is nothing but secondary evidence. If we are correct in this, then what appellant proposed was to introduce secondary evidence of secondary evidence, and we are aware of no rule of evidence under which such testimony was admissible. As well might a party undertake to prove the contents of a certified copy of a deed, which never could be done. We are aware of no authority which would sanction the admission of the offered evidence.

The judgment of the circuit court will be affirmed.



Judgment affirmed.


Filed at Ottawa May 19, 1884.

1. JURY service confined to the county. There is no authority in any statute for the selection of grand and petit jurors in one county to serve in another county.

2. CRIMINAL LAW-as to right of trial by jury-and in what county a person charged with crime must be tried. The right of trial by jury, guaranteed by the constitution to one accused of crime, includes the right of being tried by jurors selected from the county in which the offence is alleged to have been committed.

Brief for the Appellant.

3. Section 5, division 10, of the Criminal Code, in so far as it authorizes a party to be tried for an offence committed entirely within one county, but one hundred rods from the county line, in the adjoining county, is unconstitutional and void.

4. There is a class of offences that may be committed by a party being in one county, upon a person or thing being at the same time in another county, when the offence may not inaptly be defined as having been committed in either county; and offences committed on the county line, or so near thereto as that the distance therefrom is inappreciable, may with propriety be regarded as having been committed in either county, and by doing so no one is deprived of any constitutional right.

5. But where the entire offence is committed within one county, and at an appreciable distance from the county line, as in this case, at a distance of seventy rods, the party accused can not be indicted and tried in another county for that offence.

APPEAL from the Circuit Court of Kane county; the Hon. C. W. UPTON, Judge, presiding.

Messrs. RUBENS, MCGAFFEY & AMES, for the appellant:

A citizen of this State can be tried for a criminal offence only in the county or district where the offence has been committed. Const. of 1870, art. 2, secs. 5, 9.

The statute providing that "where an offence shall be committed within one hundred rods of a county line, it may be so alleged, and the trial may be in either county," (sec. 396 of the Criminal Code,) is in direct contravention of the constitutional guarantees relating to trials by jury, and therefore void. Armstrong v. State, 1 Coldw. 338; Swarth v. Kimball, 43 Mich. 443; State v. Sawyer, 56 N. H. 175; Wheeler v. State, 24 Wis. 52; Osborn v. State, 24 Ark. 629.

The word "district," in article 2, section 9, of the constitution, does not include a belt of one hundred rods in another county from which no jurors are drawn. Weyrich v. The People, 89 Ill. 90.

The first constitutional provision which we invoke against the operation of this statute is section 5, of article 1, of the

Brief for the Appellant.

constitution of 1870: "The right of trial by jury, as heretofore enjoyed, shall remain inviolate." The meaning of this constitutional provision has been held to be that the common law mode of trial by jury must remain inviolate. (Petition of Ferrier, 103 Ill. 367; Ward v. Farwell, 97 id. 593.) And it was held that the mode of trial, as it existed at the time of the adoption of the constitution, was preserved by this provision. Ross v. Irving, 14 Ill. 171.

There can be no question that at common law no man could be taken out of the county where the offence was committed, and where he resided, to an adjoining or distant county. (4 Blackstone's Com. 349.) And this right of trial by jury includes the grand as well as the petit jury, and both must be drawn from the county where the offence was committed. 4 Blackstone's Com. 303; Hallam's Const. Hist. 15, 16; Bacon's Abr. title "Juries;" 2 Hawkins' Pleas of the Crown, 300, chap. 25, sec. 28.

The courts of other States have held acts of the legislature authorizing the trial of persons out of the county in which the offence was committed, as unwarranted by the constitution, and void. Swarth v. Kimball, 43 Mich. 443; Paul v. Detroit, 32 id. 108; Weyrich v. The People, 89 Ill. 90; Armstrong v. State, 1 Coldw. 338; Osborn v. State, 24 Ark. 629; Wheeler v. State, 24 Wis. 52; State v. Sawyer, 56 N. H. 175; State v. Denton, 6 Coldw. 539; Kirk v. State, 1 id. 345.

The framers of our constitution did not content themselves, however, with the provision above quoted. They gave a still more definite expression of their determination to uphold this constitutional guaranty by declaring: "In all criminal prosecutions the accused shall have the right to a

speedy public trial, by an impartial jury of the county or district in which the offence is alleged to have been committed." Const. 1870, art. 2, sec. 9.

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