underlying a certain tract of land in Jefferson county containing 127 acres, within six months from the date of the contract, at the price of $25 an acre. The contract was similar to that involved in the case of Threlkeld v. Inglett, 289 Ill. 90. On August 4, 1919, the plaintiffs in error filed a bill against the defendant in error alleging that while the option was in force they had notified him of their election to exercise the option and take and pay for the coal, oil and gas upon the terms mentioned; that the defendant in error, having received the notice of acceptance, treated the option as a valid contract and conveyed to the plaintiffs in error 38 acres of the 127 acres, but because of a defect in the title to the remainder of the tract it was not then conveyed, and proceedings were instituted to quiet the title to it so as to enable the defendant in error to comply with his contract; that the defendant in error has refused to comply with his contract and convey to the plaintiffs in error the coal, oil and gas underlying the remainder of the tract; that the plaintiffs in error on June 27, 1919, served a notice in writing on the defendant in error notifying him that they waived the provisions in the option requiring that the deed should contain provisions used to convey similar property in Franklin and Jefferson counties and also provisions satisfactory to the purchaser, and that they would accept a statutory warranty deed conveying the coal, oil and gas, together with the right to mine and remove it; that the complainants have been at all times, and now are, ready to comply with the contract on their part, but the defendant in error refused to execute the deed and convey the property. The prayer of the bill was that the defendant in error should be decreed to specifically perform his contract and execute a deed of conveyance to the plaintiffs in error. The defendant in error answered, denying any offer by the plaintiffs in error to accept the statutory form of warranty deed or to waive the special provisions mentioned in the option contract, and averring that subsequent to the sign

ing of the option, and before the giving by the plaintiffs in error of any notice of acceptance thereof, the defendant in error notified them that the offer had been withdrawn. The answer further alleged, among other things, that after the signing of the option, and before the service of the supposed notice on him, he had sold and conveyed the premises to D. M. Parkhill, as the plaintiffs in error well knew. After a hearing the court entered a decree dismissing the bill for want of equity, and the complainants have sued out a writ of error.

It appears from the answer and the evidence that the defendant in error, at the time the suit was brought, had no title to the coal, oil and gas which are in controversy in this case, having conveyed them to D. M. Parkhill, and that the plaintiffs in error knew of the conveyance before they began their suit but failed to make the grantee a party to the bill. There can be no decree of specific performance in the absence of the holder of the title to the property to be conveyed. The court will not perform the useless act of entering a decree that the defendant convey which would be incapable of enforcement. Where an owner of land who has sold it conveys it to a third person having knowledge of the contract of sale, the grantee can be compelled by the vendee to perform the contract specifically to the same extent as the original vendor, if he had not transferred the title, (Forthman v. Deters, 206 Ill. 159,) but no decree for the conveyance of the title can be made in the absence of the holder of the title. When the plaintiffs in error learned of the conveyance to Parkhill, if they desired to proceed to obtain the title to the land it was necessary for them to proceed against Parkhill. If they desired to proceed against the defendant in error their only remedy against him was an action at law for damages. When they began suit against him they knew that it was impossible for him to convey the title to them and that they could not recover any decree for that purpose. Since the only claim they had

against him was a legal claim for damages, equity would not retain jurisdiction of their bill for specific performance to assess the damages which might be recovered in an action at law. Where a vendor's incapacity to perform is known to the vendee at the time of bringing suit for specific performance, the bill will not be retained for the assessment of damages but will be dismissed, leaving the complainant to his action at law for damages. Doan, King & Co. v. Mauzey, 33 Ill. 227; Saur v. Ferris, 145 id. 115; Mack v. McIntosh, 181 id. 633; Kennedy v. Hazelton, 128 U. S. 667.

In the absence of the holder of the title no other decree could have been rendered than that which was rendered dismissing the bill, and it is affirmed.

Decree affirmed.

(No. 14148.-Reversed and remanded.)

THE PEOPLE OF THE STATE OF ILLINOIS, Defendant in Error, vs. JIM DAVIS, Plaintiff in Error.

Opinion filed December 22, 1921.

I. CRIMINAL LAW-when lengthy cautionary instruction is not erroneous. The giving of an unduly long instruction in a murder trial for the purpose of assuring the jury of the impartiality of the court and to caution them against allowing the conduct of the court or counsel to influence their verdict is not necessarily prejudicial error, and in the absence of anything in the bill of exceptions to the contrary it will be presumed there was a basis for the instruction.

2. SAME-instruction as to voluntary manslaughter is not applicable to plea of self-defense. An instruction quoting section 144 of the Criminal Code, as to voluntary manslaughter being the result of a sudden, irresistible impulse, has no application to a plea of self-defense in a murder trial, as a man may deliberately and intentionally use a deadly weapon in self-defense and may intend to kill his opponent and yet not be guilty of either murder or manslaughter.

3. SAME when instruction directing verdict of guilty is erroneous. While every fact is not required to be proved beyond a reasonable doubt to authorize a verdict of guilty, certain facts must be so proved; and it is not proper for an instruction in a murder

trial, after advising the jury that every fact need not be proved beyond a reasonable doubt, to direct a verdict of guilty if the jury believe, from the whole evidence, that the defendant is guilty, without informing them what facts must be proved beyond a reasonable doubt to authorize such a verdict, especially where the instruction ignores the defendant's claim of self-defense.

4. SAME-instruction as to right of self-defense should not require "well grounded” belief in danger. The belief in the danger of death or great bodily harm which will justify the exercise of the right of self-defense is no more than a reasonable belief in view of the facts apparent to the assaulted party, and in a murder trial an instruction which requires, in addition to such reasonable belief, a "well grounded" belief in the danger is misleading and erroneous. (Campbell v. People, 16 Ill. 17, commented on.)

5. SAME-instructions should not be long and argumentative. Instructions should briefly, clearly and distinctly state to the jury the rules of law which they should use in the determination of the case and without argument apply them to the facts which the jury may find from the evidence, and not every statement which may properly be used in the argument to the jury is proper to be given in an instruction.

WRIT OF ERROR to the Circuit Court of Williamson county; the Hon. D. T. HARTWELL, Judge, presiding.

GEORGE B. WHITE, D. L. DUTY, and J. L. Fowler, for plaintiff in error.

EDWARD J. BRUNDAGE, Attorney General, and FLOYD E. BRITTON, (JOHN M. REID, GEORGE W. PILLOW, and O. C. SMITH, of counsel,) for the People.

Mr. JUSTICE DUNN delivered the opinion of the court: Jim Davis prosecutes this writ of error to reverse a judgment of the circuit court of Williamson county convicting him of manslaughter on an indictment charging him with the murder of Stanley Pemberton.

Broadway, the main street of Johnston City, runs east and west and crosses at right angles the Chicago and Eastern Illinois railroad. The homicide occurred about one block east of the crossing at a few minutes after eight

o'clock in the evening of Monday, June 29, 1920. On the south side of the street, from west to east, this block is occupied first by a moving picture theater, next a confectionery store called a "Candy Kitchen," then the Stirtiz hardware store, the Manhattan Cafe, the Jones drug store, in that order, and the Henson grocery store on the corner at the east. Bricks were piled up along the side of the street in preparation for paving. Stanley Pemberton was a young man twenty-four years old, five feet nine inches tall, weighing about one hundred and sixty-five pounds. He had been married about six weeks. The plaintiff in error was thirtysix years old, weighing about one hundred and fifty pounds. On Sunday evening, June 28, Pemberton's wife, who was twenty-three years old, was in the Manhattan Cafe, seated at the lunch counter, talking with Midge Harris, who is a step-daughter of the plaintiff in error, employed in the cafe and was behind the counter. Davis was also in the cafe. He was eating at the counter or was in the back part of the room getting a drink of water. Davis and Pemberton were not acquainted. Pemberton came in and said to Davis, "What are you doing talking to my wife?" and Davis answered, "I wasn't talking to your wife." Pemberton said, "If you was, I don't want to catch you talking to her again." Pemberton then went out and Davis saw him no more until the next night immediately before the homicide. The evening of the next day Mrs. Pemberton went to West Frankfort with Ruth Harris, another step-daughter of Davis, on the train leaving Johnston City about six o'clock and returned on the train arriving between seven and eight. Her husband had not been at home the night before and she had not seen him since he was in the cafe, but he met her at the station upon her return from West Frankfort and the two walked east on Broadway. Near the confectionery he said, "Wait a minute," and walked on east while his wife stopped. Pemberton asked Louis Griffith, who was standing near, "Have you seen Jim Davis?"