bodily harın, he will be justified in defending himself although the danger be not real, but only apparent. Such a person will not be held responsible, criminally, if he acts in selfdefense, from real and honest convictions as to the character of the danger, induced by reasonable evidence, although he may have been mistaken as to the extent of the actual danger. The court further instructs the jury that if you believe from the evidence in this case that the defendants, or either of them, was assaulted by the deceased in such a way as to induce in such defendant a reasonable and well-founded belief that he was actually in danger of losing his life, or of suffering great bodily harm, then he was justified in defending himself, whether the danger was real or only apparent. Actual or positive danger is not indispensable to justify self-defense. The law considers that men, when threatened with danger, are obliged to judge from appearances, and determine therefrom as to the actual state of things surrounding them; and in such case, if persons act from honest convictions, induced by reasonable evidence, they will not be held responsible, criminally, for a mistake as to the actual danger." Two other instructions given at the request of the defendants also stated the law of self-defense further in accordance with the same principle. These instructions stated the rule as to the danger being only apparent as fully and as favorably for the defendants as they could ask, and, taking the instructions together, it is not possible that the jury could have been misled on that question.

The eighth and tenth instructions given at the instance of the people are criticised on the ground that they authorized a verdict of guilty merely on proof that the defendants shot and killed Bell. They stated that the jury should find the defendants guilty if they believed from the evidence, beyond a reasonable doubt, that the defendants committed the crime in question, as charged in the indictment, even though Bell had sustained a bad reputation and character for quiet and peaceableness, and defendants had sustained a good reputation and character in that respect. The point made in these instructions was that the fact of Bell being of bad reputation for peace and the defendants being of good reputation in that regard would not justify them in killing him in the manner and form as charged in the indictment, which stated all the elements necessary to constitute a crime. The court instructed the jury on the question of defendants' good character, giving them the benefit of the presumption arising therefrom, and we are not able to see how the instruction could have been misunderstood.

A reversal is also asked on the ground that the court failed in its duty to defendants in not giving an instruction not asked by either of them, to the effect that the jury might find one of them guilty and the other not guilty. It is said that it never occurred to the jury

that they could do that, but they thought they must send an innocent defendant along with a guilty one. We do not think that can be so, and especially in view of the tenth instruction given at their request, as follows: "The court further instructs the jury that, before the prosecution have any right to find either of these defendants guilty of this charge, it must appear from the evidence in this case that such defendant willfully, maliciously, and feloniously did kill said Charles Bell, and that the same was not done in selfdefense, as defined in these instructions. One person will not be liable for the act or acts of another unless it is shown from the evidence in this case, beyond a reasonable doubt, that such defendant aided, advised, or abetted the commission of such act or acts." Defendants did not ask the court to give an instruction in the form now insisted upon, and they say it would be unreasonable to expect them to do so, as the jury would regard it as a concession on their part that one might be guilty. The instructions, when given, are the instructions of the court, and there can be no difference with the jury whether one given was asked for or not, or by whom; they would not and should not know one from the other. It could not be unreasonable to expect defendants to ask for all instructions which they thought ought to be given. The court might, if he saw fit, instruct the jury on his own motion, but defendants had a right to ask such instructions as they saw fit, and cannot complain of a failure of the court to give an instruction not asked for.

Seven instructions requested by defendants were refused, and counsel say they should have been given to the jury, but make no argument in support of them. They may, therefore, be properly dismissed without extended explanation by saying that they were all properly refused. So far as they contained any correct propositions of law, they were contained in others given.

No error occurred during the trial, but it is said the court should have granted a new trial because the verdict was not supported by the evidence, which was substantially as follows: The deceased, Charles Bell, had a quarrel with and assaulted Daniel Clements, the uncle of defendant John W. Clements, and father-in-law of the defendant David A. McDonall. The defendant Clements heard of the assault in York, soon after, and, according to one witness, said, "That ain't settled.” According to his testimony, some one asked him if he thought the affair was settled, and he said: "If my uncle could call back twenty years, it ain't; but since he has been trying to live a Christian life he don't fight." He then went across the street, and bought some cartridges, which he testified were intended to kill rats, and went home, and hitched his team to his farm wagon, which had a spring seat. He testified that he left his cartridges in his house. He took his wife, and drove to

McDonall's, telling her that he would go over and see how badly his uncle was hurt. At McDonall's his wife got out of the wagon, and McDonall came from the barn through the house, getting his revolver on the way, and got into the wagon. The loaded reVolver was laid on the spring seat between them, and they started towards West York on their errand. Bell also lived at West York, and was accustomed to drive along the road from that place daily at about that time, and they met him on the road. There were two tracks, some distance apart, with weeds between them, and defendants were driving in the north track. The evidence is conflicting as to which track Bell was in. They say he was in the south track, and turned out of it towards them between the two tracks, while there was evidence that his buggy track turned out of the north track between the two. However that may be, the parties passed each other 10 feet or more apart; the defendants in the north track, and Bell, with a single horse and open buggy, between the two tracks. They both stopped just after passing. No one else heard what was said, and, Beil being dead, the only evidence on that subject was from defendants. They testified that Bell spoke first, and said, "Good evening," and they said, "Good evening"; that Bell spoke about the difficulty, and the cause of it, which he alleged to have been false statements by the uncle of what he had done; that McDonall said, "Didn't you?" whereupon Bell jumped out of his buggy, saying that he did not, and with a threat to fix MeDonall if he accused him; that Bell put his right hand behind him, and shook his fist at McDonall, who immediately shot, and instantly killed him, the ball going through his heart. Bell was totally unarmed, and defenseless. When he got off his buggy, he did so on the opposite side away from the defendants, and did not go in their direction, but went further from them behind his horse. When he reached the horse's head, and his body was exposed, he was shot down, and fell in front of his horse. There is no contradiction or attempt to contradict the conclusive evidence from the situation that Bell, in leaving his buggy, went further away from defendants. He never took a step towards them, but every step carried him further away with the horse and buggy between him and them. It is incredible that this unarmed and defenseless man was assaulting or attempting to assault the defendants, or that there was anything which would arouse a belief in the minds of reasonable men, situated as they were, that it was necessary to kill him. It rather appears that he was shielding himself than making an assault on them. Both defendants stood up, and McDonall got over the spring seat towards Bell, and, having killed him, they drove on, and left him lying there in the road. We do not think it strange that defendants failed to impress the jury with their assumed defense.

It is urged that Clements had nothing to do with the killing, and that the verdict against him was not justified. Defendants testified that McDonall was in the habit of carrying the revolver on the wagon seat, and killing game with it. He testified that his wife had not been very well, and asked him to kill a young rabbit, and that he took it for that purpose on this occasion. It is therefore argued that, as the revolver was taken for an innocent purpose, and the shooting was done by McDonall, the defendant Clements should have been found not guilty. Wheth

er the revolver was taken merely for the purpose alleged, and whether the cartridges belonged to Clements or not, the defendants went armed where they were likely to meet Bell, and in the common enterprise of investigating the difficulty. They had passed Bell, and Clements, who was driving, could have driven on away from him. He stood up, and held the team, and controlled them, while McDonald got over the spring seat with the revolver, and did the killing. He got up from the spring seat, and a witness testified that he looked up when he heard the report of the pistol, and saw the two defendants standing in the wagon about the middle of the wagon bed, from which it would appear that Clements also got over the seat towards Bell with McDonall. The evidence would justify the belief that he was equally concerned in the transaction, except that McDonall held the revolver and fired the shot. The judgment will be affirmed. Affirmed.

HAGAN v. WALDO et al. (Supreme Court of Illinois. Nov. 1, 1897.) DEED-DURESS-SUFFICIENCY OF EVIDENCE-NUL

LIFICATION.

1. In an action to set aside a deed by complainant and husband conveying a farm owned by complainant to their daughter, W., for life, with remainder to her children, subject to a life estate in the grantors, on the ground of duress by the husband, the evidence showed that for years complainant and her husband had quarreled; that W. resided on the farm with them; that she and another daughter were their only children, and at one time they would be in a bitter quarrel with one, and then with the other; that on the day the deed was executed complainant, her husband, and W. drove 22 miles to make it, and stopped at the residence of M.; that they told M. what they had come to C. to do; that, after talking with M., the three parties went to the office of R., who drew the deed; that it was signed and acknowledged before a notary public; that the parties then returned to M.'s, and talked with him again; that complainant was exceedingly sociable; and that the three then returned in the buggy as they had come. Complainant testified that she was acting under duress. Held, that complainant was not entitied to relief.

2. A wife and husband conveyed to their daughter and grandchildren a farm belonging to the wife, subject to a life estate in the grantors. Afterwards the wife procured a divorce, and arbitrators selected by her and her husband to make a division of the property decided that the husband should have a portion of the farm and the wife the balance. Each then conveyed to

the other the land set apart to him and her respectively. Held, that the deed to the daughter and her children was not affected by the subsequent acts of the grantors.

Error to circuit court, Mason county; Edward P. Vail, Judge.

Bill by Victorine Bongard against Mary H. Waldo and others to set aside a deed. Pending the action, complainant died testate, and Amelia Hagan, sole executrix and sole legatee of her estate, was substituted as complainant. There was a decree dismissing the bill, and complainant brings error. Affirmed.

J. L. Ray, for plaintiff in error. Crea, Ewing & Walker and Gere & Philbrick, for defendants in error.

CRAIG, J. This was a bill in equity, brought by Victorine Bongard to set aside a certain deed executed by the complainant and her husband, Joseph Bongard, May 31, 1884, in which they conveyed to Mary H. Waldo, for the term of her natural life, and to her heirs, Francis Waldo, Maud Waldo, and Harry Waldo, in fee simple, subject to the life estate in Victorine Bongard, and, if Joseph Bongard survived her, the life estate in him, retained by the grantors respectively during the terms of their lives, 425 acres of land in Champaign county, described as follows: "The north 1⁄2 of section 19, town 17 north, range 10 east of 3rd P. M.; also the south of the southeast 14 of section 18, and the south 22 acres of the southwest 14 of the southwest 4 of section 18. and 34 acres off of south side of the southeast 14 of southwest 14 of section 18, all in town and range aforesaid." The deed was properly executed by the grantors, and acknowledged before a notary public on the day it bore date, and was placed on record in the county where the land was located. The grantee Mary H. Waldo, was a daughter of the grantors, and the grantees Francis, Maud, and Harry were grandchildren of the grantors. The lands at the time of the conveyance were owned by Victorine Bongard in her own right. After conveyance, the grantors continued to reside on the lands as husband and wife until the fall of 1884, when the complainant left her husband, and went to reside with her daughter Amelia Hagan. At the time the deed was executed, Mary Waldo and Amelia Hagan were the only children of the grantors. The complainant contends that she executed the deed under duress, and upon this ground it should be set aside. The bill contains the following allegation: "She further represents that prior to that time, on or about the 31st day of May, 1884, the said Joseph Bongard, by threats, violence, and abuse of your oratrix, the said Mary Waldo joining with her persuasions, misrepresentations, falsehoods, and deceits, and after persuading and threatening your oratrix in various ways, and Bongard having threatened the life of your oratrix, compelled oratrix to make and deliver

to said Mary Waldo and her three children the deed for the lands involved." Much evidence was introduced on the hearing by the complainant for the purpose of showing coercion and duress when the deed in question was executed. Much of the offered evidence was incompetent, and that was, no doubt, rejected by the chancellor on the hearing. It is a familiar rule that a deed duly executed and delivered cannot be impeached by the subsequent declarations of the grantors, and yet much reliance seems to have been placed on the declarations of the grantors in this case. Bongard and his wife were French; they were both of a quarrelsome disposition; and, as appears from the evidence, they were for many years engaged in disputes and quarrels over various matters. At one time they would be in a bitter quarrel with one daughter, and in a short time peace would be declared, and then a row would be started with the other daughter. Which one was to blame for the troubles which kept the domestic relations of the Bongard family in a constant turmoil it is somewhat difficult to determine from the evidence. Some of the neighbors think the old man was the cause of the disturbance, while, on the other hand, others equally reliable and credible think the blame should be placed at the old lady's door; but, however this may be, their quarrels and family disturbances cannot be regarded sufficient ground for setting aside the deed. Conceding that Bongard and his wife lived in a quarrel for 40 years, that fact would not vitiate the deed; and unless the wife, at the time of executing the deed, was under actual duress, and the deed was not her act, it must be sustained. If at the time the deed was executed the complainant was under such coercion and restraint that her mind was paralyzed from fear of her life or great bodily harm if she refused to execute the deed, and under such coercion the deed was executed, it could not be regarded as her act. But, as was said in Brower v. Callender, 105 Ill. 100, mere vexation and annoyance are not sufficient to set aside a deed unless it be shown that the mind was in that condition that by reason of such vexation and annoyance a state of insanity was produced and existed when the deed was executed and acknowledged. As has been seen, the deed was executed on the 31st day of May, 1884. At this time Joseph Bongard and Victorine Bongard, his wife, and Mary Waldo, the daughter, resided on the farm, the land in question, some 22 miles from Champaign. The three parties started from the farm in a buggy, and drove to Champaign, for the purpose of executing the deed. When they arrived in Champaign, they stopped at the residence of Philip McDonald, an acquaintance. They told McDonald what they had come to Champaign to do. The complainant Victorine Bongard, as shown by the evidence of all the parties, was pleasant, talked, laugh

ed, and was sociable. After talking with McDonald and his family, the three parties proceeded to the office of Thomas A. Reed. He drew the deed, and it was signed, and acknowledged before Smith, a notary public, in Reed's office. Then the parties returned to McDonald's, talked with him, and again invited him to visit them. The complainant talked and laughed, and was exceedingly sociable. They then left McDonald's, and returned home in the buggy as they had come. It is apparent from the evidence of Mary Waldo and the McDonalds that complainant was under no restraint or duress when the deed was executed, but, on the other hand, the execution of the deed was her free and voluntary act. It is true, the complainant herself testified that she was acting under duress when she executed the deed, but that was not sufficient to impeach the deed. Where a deed has been acknowledged, and contains the certificate of an officer authorized by law to take an acknowledgment, the certificate of the officer showing that the deed was executed and acknowledged by the grantor cannot be overcome or impeached by the testimony of the grantor alone. Blackman v. Hawks, 89 Ill. 512; Heacock v. Lubuke, 107 Ill. 402; Dickerson V. Evans, 84 Ill. 452. In the spring of 1885, Victorine Bongard filed a bill for divorce against her husband, Joseph Bongard. A divorce was granted, and two persons were selected by the parties as arbitrators to make a division of property between them. arbitrators decided that Joseph Bongard should have the northeast 14 of 19, and the south of the southeast of 18,-three 80's or 240 acres of land, and that Victorine Bongard should have the northwest of 19 and the 28 or 29 acres off of the south side of the south of the southwest of 18, which they called the 190 acres. Under this arrangement made by the arbitrators, Mrs. Bongard conveyed to her husband the land set apart to him, and he conveyed to Mrs. Bongard the land set apart to her. It is claimed in the argument, as we understand counsel, that this action of the parties dividing the lands virtually nullified the deed of May 31, 1884.

The

Under the deed of May 31, 1884, the title to the lands named therein passed to Mary Waldo and her children named in the deed, and no act, conduct, or agreement of Joseph Bongard and his wife in regard to the lands could devest them of that title. The conveyances from Joseph Bongard to his wife, and from her to him, had no bearing on the title to the lands except the life estate reserved to them under the deed of May 31, 1884, was executed. It may be that the deed of May 31, 1884, was an unwise act on the part of Mrs. Bongard,—an act that did injustice to her other daughter,-but these facts constitute no ground for setting the deed aside in a court of equity.

We per

ceive no error in the decree of the circuit court, and it will be affirmed. Affirmed.

On Rehearing.

PER CURIAM. Since the rehearing was granted in this case, we have given further consideration to the questions involved, and entertain the same views as those expressed in the foregoing opinion. Said opinion is accordingly readopted, and it is ordered that the same be refiled, and that the judgment of affirmance heretofore entered herein be re-entered as the judgment of this court.

BARNES v. PEOPLE ex rel. MOLONEY. (Supreme Court of Illinois. Nov. 1, 1897.) INSURANCE-CONTROL AND REGULATION-FOREIGN UNDERWRITERS- AGENTS LIABILITY FOR PENALTIES-STATUTES REGULATING — CONSTITUTION

ALITY.

1. Act March 11, 1869 (Hurd's Rev. St. p. 880), entitled "An act to incorporate and gov. ern fire, marine and inland navigation insurance companies doing business in the state of Illinois," provides for the formation of corporations to insure property in the state, fixes their minimum capital, and brings all insurance companies previously organized within its provisions, except as to specified matters. It provides only for joint-stock companies and companies organized on the mutual plan, and declares that all companies incorporated or extended under it shall be "bodies corporate and politic," and subject to all laws relating to corporations, so far as they are applicable. It requires an annual statement, under oath, of the amount of capital stock actually paid in, the property or assets held by the company, its liabilities, and its income and expenditures during the preceding year. Section 22 provides that no foreign insurance company, association, or partnership incorporated or organized for any of the purposes specified in the act shall transact any insurance business in the state except on conditions therein specified, among which are the appointment of an attorney in the state, on whom process may be served, the filing of a copy of the "charter or deed of settlement" of the company, and a statement, under "the oath of the president or vice president and secretary," showing its financial condition, and the procuring of a certificate of authority from the auditor, stating that the company has complied with all the requisitions of the act applying to said companies, and declares (clause 11) that the provisions of "this section" shall apply to all foreign companies, partnership associations, and individuals, whether incorporated or not. Held, that one acting as agent for a number of citizens of a foreign state, not a partnership and not incorporated, who are doing an insurance business in the state, and have not complied with the requirements of said act, is not liable for the penalty prescribed by section 22, cl. 9, of said act, though he has not procured from the auditor or insurance superintendent a certificate of authority, stating that such citizens have complied with such requisitions.

2. If the word "company," in section 22, is made, by clause 11, to include individuals as well as corporations and associations incorporated by or organized under the laws of any other state or government, it operates on foreign individuals alone, and imposes a restriction on the citizens of other states not imposed on the citizens of Illinois; and such clause violates Const. U. S. art. 4, § 2, providing that "the citizens of each state shall be entitled to all the privileges and immunities of citizens in the several states," and amendment 14, providing that no state shall make any law abridging the priv ileges or immunities of citizens of the United States, nor deprive any person of life, liberty,

or property without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws.

3. The provisions of said act relating to the appointment of an agent or attorney provide for a method of service on a corporation, and cannot be applied to an individual.

Appeal from circuit court, Cook county; R. W. Clifford, Judge.

Action by the people, on the relation of Maurice T. Moloney, attorney general, against John A. Barnes. From a judgment in favor of plaintiff, defendant appeals. Reversed and

remanded.

Myron H. Beach, for appellant. E. C. Akin, Atty. Gen. (T. J. Scofield, of counsel), for appellee.

CARTWRIGHT, J. The people of the state of Illinois brought this suit in debt against John A. Barnes, to recover the penalty prescribed by the ninth clause of section 22 of the act entitled "An act to incorporate and govern fire, marine and inland navigation insurance companies doing business in the state of Illinois," in force March 11, 1869 (Hurd's Rev. St. p. 880). The declaration contains eight counts, in each of which it is alleged that the defendant acted as the agent of certain persons named therein, who were citizens of the United States and of the state of New York, and resided in the state of New York, and were then engaged in insuring property against loss by fire, by issuing to the owners thereof policies of insurance, and that defendant, as such agent, solicited insurance and delivered the policies set out in the count, and collected the premiums therefor, without having procured from the auditor of public accounts, or insurance superintendent of the state of Illinois, a certificate of authority, stating that the makers of said policies had complied with the requisitions of said act. The policies set out in the several counts were made by persons engaged in the business of underwriters, each of whom was individually liable for a separate amount placed after his name, but not for the whole or any part of another underwriter's liability, yet all acted together to effect insurance. In such cases the underwriters act through one person, who is the agent of each of them, and policies of this kind are called "Lloyds Insurance." The underwriters in these policies were denominated, "Underwriters at New York Central Lloyds," "Lafayette Fire Lloyds," "Tradesmen's Fire Lloyds," and "Traders' Fire Lloyds of New York." A demurrer, which was both general and special, was interposed to the declaration, and overruled. The defendant electing to stand by his demurrer, and refusing to plead further, the court rendered judgment against him for the penalty of $500.

The question to be determined is whether or not an individual acting as agent for a number of citizens of the state of New York, not a partnership, and not incorporated, who have not complied with the requirements of the

act under which this suit was brought, and where the agent has not procured from the auditor of public accounts or insurance superintendent a certificate of authority, stating that such individuals have complied with such requisitions, is liable to the penalty provided by said act. The title of the act, showing its subject and scope, has already been given. The act provides for the formation of corporations to insure property in this state, fixes their minimum capital, and brings all insurance companies previously organized under its provisions, except as to the amount of their capital, the investment of such capital, and their assets, and the privileges and powers granted by their charters. It provides for the organization of corporations of two kinds, viz. joint-stock companies and companies organized on the mutual plan; and the auditor has no power, under the laws of this state, to issue a license to a company of a different character. Insurance Co. v. Swigert, 120 III. 36, 11 N. E. 410. It declares that all companies incorporated or extended under it shall be deemed and taken to be bodies corporate and politic, in fact and in name, and shall be subject to all the provisions of law in relation to corporations, so far as the same are applicable. It requires an annual statement under oath of the amount of capital or stock actually paid in, the property or assets held by the company, the liability of the company, its income during the preceding year, and its expenditures during the same time. The twenty-second section fixes the conditions upon which foreign insurance companies may take risks or transact the business of insurance in this state; and it is therein provided that it shall not be lawful for any insurance company, association, or partnership incorporated by or organized under the laws of any other state of the United States or any foreign government, for any of the purposes specified in the act, to transact any insurance business in this state. except upon the condition therein fixed. The amount of capital must be equal to that required of similar companies formed under the act. The company must first appoint an attorney in this state, on whom process of law can be served. A copy of the charter or deed of settlement of the company must be filed. A statement, under the oath of the president or vice president and secretary of the company, showing its financial condition, must be filed. If the company is incorporated by, or organized under, any foreign government, it must deposit $200,000. And in all cases a certificate of authority must be procured from the auditor, stating that the company has complied with all the requisitions of the act which apply to said companies, and giving the name of the attorney appointed to act for the company. The provisions of the act, unless in one instance, relate only to insurance companies, and not to an individual engaging in that business. And in People v. Fesler, 145 Ill. 150, 34 N. E. 146, it was said that the provi