Brief for the People. Opinion of the Court.

Mr. FRANK CROSBY, and Mr. TERRENCE E. RYAN, State's Attorney, for the People:

The statute attacked is no novel experiment in legislation. It has existed among the legislative enactments of sister States for many years, and has frequently been confirmed by their judicial tribunals. Commonwealth v. Gillon, 2 Allen, 502; The People v. Harris, 45 Barb. 494; State v. Robinson, 14 Minn. 447; The People v. Davis, 56 N. Y. 95.

"The right of trial by jury" may be regulated by the legislature in certain ways, provided its fundamental requisites are not impaired or destroyed,—that is, provided the number composing the jury, its unanimity and its impartiality are not violated. Proffatt's Trial by Jury, sec. 106, p. 149.

Mr. JUSTICE SCHOLFIELD delivered the opinion of the Court:

He

Appellant sold spirituous liquors in violation of chapter 43, entitled "Dram-shops," in Cook county, but at a point within seventy rods of the line between that county and Kane county. For this he was indicted by a grand jury of Kane county, and tried and convicted in the circuit court of that county. objected, on the trial, to the jurisdiction of that court, and by plea and motion raised the question of its power to render any judgment against him for the offence so committed. The action of the court is claimed to be authorized by section 5, division 10, of chapter 38, entitled "Criminal Code," of the Revised Statutes of 1874, page 406, which reads as follows: "Where an offence shall be committed on a county line, or within one hundred rods of the same, it may be so alleged, and the trial may be in either county divided by such line." Undoubtedly, if valid, this is broad enough to embrace the present case; but counsel for appellant insist that so much of it as assumes to authorize the trial of a party in one county for an offence committed in another county, (no right in that

Opinion of the Court.

regard having been waived,) is unconstitutional and void, and this presents the only question for our determination.

It will be observed no county lines are changed by this enactment, and no provision is made for the selection of jurors beyond the county line, and within the one hundred rods. thereof, and, we may add, there is no authority in any statute for the selection of grand and petit jurors in one county to serve in another county. See Rev. Stat. 1874, chap. 78, entitled "Jurors," p. 630.

The constitution of 1870 declares, in section 5, article 1: "The right of trial by jury, as heretofore enjoyed, shall remain inviolate." And in section 9, article 2: "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." Substantially the same provisions were in the constitutions of 1818 and 1848, and they have been held to guaranty the right of trial by jury, in conformity with the principles of the common law as it was enjoyed at the adoption of the constitution. (Ross v. Irving, 14 Ill. 171; Ward v. Farwell, 97 id. 593; Petition of Ferrier, 103 id. 367.) And this right of trial by jury included that of being tried by jurors selected from the county in which the offence is alleged to have been committed. (Weyrich v. The People, 89 Ill. 90.) It was the settled common law doctrine that jurors in one county were not competent to pass upon the guilt or innocence of a party in regard to a crime alleged to have been committed by him in another county. See 3 Reeves' Hist. of English Law, 135; 2 Hale's Pleas of the Crown, 264; 2 Hawkins' Pleas of the Crown, 403; 4 Blackstone's Com. (Sharswood's ed.) 349, *350; 1 Wharton on Crim. Law, (7th ed.) 277.

There is a class of offences committed by a party being in in one county, upon a person or thing being at the same time in another county, where the offence may not inaptly be de

3-110 ILL.

Opinion of the Court.

fined as being committed in either county, and we are not to be understood as questioning but that offences committed on the county line, or so near thereto that the distance therefrom is inappreciable, may with propriety be regarded as committed in either county, and that by so holding no one is deprived of any constitutional right; but it is obvious such cases are not analogous to the present case. Here the entire offence is committed within one county, at a distance of seventy rods from the county line. It is not only possible, but probable, that many persons reside within one hundred rods of the county line who are competent jurors in their own county, but none of whom, in any possible contingency, would be competent to sit as such upon the trial in Kane county. And so, if it could be said this is a new district for criminal purposes, it is unconstitutional, in that there is no provision authorizing it, but on the contrary, there is a positive provision excluding the selection of juries in so much of the territory as is included in this strip of one hundred rods. in Cook county. But if it may be said the districts simply remain as they were, then it would seem too plain to admit of argument, the constitution is violated by authorizing parties committing offences wholly in one county to be indicted and tried therefor in another county. If this may be done as to one hundred rods of territory, why may it not be done as to one mile? And if it may be done as to one mile, why may it not be done as to the entire county, and thus drag men for trial to Cook or Jo Daviess county for offences committed in Alexander or Pulaski county?

It may be that it would work no inconvenience, and be greatly promotive of a rigid enforcement of the Criminal Code, if a strip of two hundred rods in width on all county lines, (one hundred rods on each side,) might be, for the purpose of criminal trials, regarded as within either county; but it is enough for the present to say this is not warranted by the constitution, and its mandate is, that "in all criminal prose

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cutions 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." We have no more right to disregard this mandate as to one hundred rods than as to that many miles, and our opinion of its wisdom or convenience can not in the slightest affect the question of its obligatory force. Like questions were presented and like conclusions reached in Swarth v. Kimball, 43 Mich. 443; Armstrong v. State, 1 Coldw. 338; Kirk v. State, id. 345; State v. Denton, 6 id. 539; Wheeler v. State, 24 Wis. 52; Osborn v. State, 24 Ark. 629; State v. Love, 21 W. Va. 783, (45 Am. R. 570.)

The constitutions of Massachusetts and New York do not contain like provisions to those in our constitution which we have been considering, and hence the cases cited by counsel for the People from those States are not relevant. As to the decision cited from Minnesota, we are unable to concur in the reasoning by which it is sustained, notwithstanding the high respect we entertain for the ability and learning of those composing the tribunal by which it was announced. The judgment is reversed.

Judgment reversed.

1.

UNION MUTUAL LIFE INSURANCE COMPANY

บ.

WILLIAM J. SLEE.

Filed at Ottawa May 19, 1884.

MORTGAGE-whether a deed absolute, or a mortgage. The owner of city real estate, after making default of interest on a loan secured by trust deed on the same, turned over the possession of such property to his creditor, who, from that time, received the rents on the same; and after the advertisement of the premises for sale by the trustee, it was agreed that the creditor should bid in the same, and hold it in trust for the debtor until an account

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ing could be had, when, if the debtor was still owing the creditor anything, a new loan was to be made upon the property. The property was so purchased by the creditor, who shortly afterward caused a judgment by confession to be entered against the debtor for an alleged deficiency between the sum due on the loan and the amount of the bid, upon which an execution was issued, and levied upon other property of the debtor, which was also sold, and bought by such creditor: Held, that the trustee's deed to the creditor was in equity a mortgage, and that the debtor had the right to redeem.

2. AGENCY-extent of agent's authority-of facts from which it may be inferred. A debtor applied to an agent of his creditor for an extension of the time of payment or a renewal of the loan, the creditor being a non-resident corporation, and the agent a resident of the State, acting generally for the creditor as to loans in this State. At the first interview the agent stated to the debtor that he would communicate with the home office in regard to the proposition made, and afterward such agent, in another interview, said he was ready to enter into the arrangement that was thereupon made: Held, that from these facts the debtor might properly infer that the agent received the principal's sanction for entering into the arrangement he made, and that the debtor was justified in his reliance upon the agent's authority to make it.

3. INTEREST-the rate not changed by a change in form of the security. A mere change in the form of the security for a debt for money loaned will not operate to change the rate of interest to be paid from that reserved in the original contract. As, where the creditor bids off the property at a sale under a deed of trust which secures the debt, and agrees with the debtor to hold the title under the trustee's deed as a security until an accounting can be had as to rents received by the creditor and a new loan is made, which is not done, on a bill for an accounting and for redemption from the trust deed and the trustee's deed, the decree should require the complainant to pay the stipulated rate of interest provided for in the notes, up to the time of the redemption; and it is error to require the payment of six per cent only from the date of the trustee's deed, when a higher rate had been reserved in the original contract.

4. ALLEGATIONS AND DECREE-relief confined to that sought by the frame of the bill. On a bill filed to redeem property from a deed of trust, and a trustee's sale and deed thereof, by the payment of the sum found to be due the creditor on an accounting, the specific enforcement of an agreement to reduce the rate of interest can not be granted, that not being within the scope of the bill.

APPEAL from the Circuit Court of Cook county; the Hon. THOMAS A. MORAN, Judge, presiding.