in other words, how the apportionment can be made so that the districts will contain, "as nearly as practicable, an equal number of inhabitants." This is left to the legislative judgment, and is not subject to judicial control. While it may be true, as counsel say, that by the simple process of taking a county from one district, and adding it to another and adjoining district, there would be a nearer approach to equality of population and perfect compactness of territory, still we cannot hold the act to be void on that ground (nor did we so say in the other case), when it appears that the definite limItations fixed by the constitution have been observed, and there has been an approach toward equality as determined by the ratio, and the district is in some degree compact. Beyond this, where the question is one of degree only, the judgment of the legislature, when exercised, is final. In other words, we have no judicial power to control an act of the legislature which the constitution has left to its discretion and judgment. The constitution is a limitation, and not a grant, of legislative power, and where it does not put a limit to the discretion of the general assembly the courts cannot do so. Within the constitutional limitations, express and implied, as stated, when, by the passage of the act, the general assembly has determined that the districts as formed contain, "as nearly as practicable, an equal number of inhabitants," that determination is final, and cannot be reversed by the courts. Such was the holding in the Thompson Case, and it is in full accord with the doctrine of this court announced in many cases respecting the distribution of the powers of government between the legislative, the executive, and the judicial departments.

The prayer for a writ of mandamus must be denied. Writ denied.

(199 111. 84)

HACKLEMAN v. HACKLEMAN et al. (Supreme Court of Illinois. Oct. 25, 1902.) FAMILY

SETTLEMENT-REALTY-ACQUIES

CENCE-OCCUPATION-APPEAL-PREJ

UDICED PARTY.

1. Where a father, in his lifetime, by an arrangement in the nature of a family settlement, designated certain of his real estate as the separate property of each of his three children, and they acquiesced in the arrangement, and each of them entered into the actual possession of the lands so allotted to them, respectively, their rights, after the death of their father, would be the same as if they had inherited the lands in common, and afterwards made by parol the same allotment that their father made during his lifetime.

2. Plaintiff, in an action to quiet title, after decree on default, sold the land, taking a mortgage to secure the unpaid balance. The case having been reopened by the defendants, under Rev. St. c. 22, § 19, decree was entered giving title to defendants. His grantee did not

1. See Descent and Distribution, vol. 16, Cent. Dig. 214.

65 N.E.-8

complain of any error in the decree. Held that, the decree being prejudicial to plaintiff in depriving him of the lien of his mortgage, he was entitled to appeal therefrom.

Appeal from circuit court, Coles county; Frank K. Dunn, Judge.

Bill to quiet title by John V. Hackleman against William Edward Hackleman and another. From a decree in favor of defendants, complainant appeals. Reversed.

J. W. & E. C. Craig, for appellant. Neal & Wiley, D. T. McIntyre, and W. S. Doan, for appellees.

BOGGS, J. One Mary J. Connor died in the year 1889, leaving the appellant, her brother, and the appellees, her nephew and niece, the children of a deceased brother, her only heirs at law. On the 31st day of January, 1898, the appellant filed a bill in chancery in the Coles circuit court for a decree declaring a certain deed held by the said Mary J. Connor, purporting to convey to her the S. E. 4 of section 27, township 14 N., range 8 E. of the 3d principal meridian, in Coles county (which land, the bill alleged, belonged to the appellant), to be but a mortgage, the conditions whereof had been fully complied with; that the east half of said tract had been reconveyed to him by the said Mary J. Connor; and asking that the defendants be required to release and quitclaim to him (the appellant) such title to the west half of said tract as apparently rested in them as heirs of the said Mary J. Connor. The appellees being residents of the state of Indiana, service was had upon them by publication as nonresidents, and they were defaulted, and upon evidence taken before the master in chancery a decree was entered granting the prayer of the bill, and in pursuance thereof the master in chancery executed a deed to the appellant for the said west half of the said tract of land. On the 20th day of April, 1901, the appellees presented their petition, under section 19 of chapter 22 of the Revised Statutes, entitled "Chancery," to be heard touching the matter of such decree and for leave to answer the bill. The petition was granted, and they filed an answer, in which they denied that the deed held by Mrs. Connor for the land was a mortgage, and also denied that the appellant ever had title to the land. They also, by leave of the court, filed a cross-bill, in which they alleged that the said Mrs. Connor was the owner of the said W. 2. of the S. E. 14 of section 27, aforesaid, at the time of her death, and that therefore it descended, under the statute, to the appellant and the appellees, as the only heirs at law of said Mary Connor, and praying that it be partitioned accordingly. The cross-bill was so amended on the hearing as that it alleged the title to the entire S. E. 14 of said section 27 rested in one Michael Hackleman at the time of his death; that said Michael Hackleman died in 1869, and left, him surviv

ing, his daughter, the said Mary J. Connor, deceased, the appellant, his son, and the appellees, children of one William E. Hackleman, Sr., a deceased son, and Rebecca, their mother, the widow of said deceased son; that said Mary J. Connor died in 1889, leaving neither child, children, nor descendants thereof, and her interest descended to the appellant, her brother, and to the appellees, her nephew and niece. The cross-bill prayed a decree partitioning the land among the said heirs of the said Michael Hackleman and said Mary J. Connor, Rebecca, the widow of said William E. Hackleman and mother of the appellees, was not made a party, for the reason she executed and delivered a quitclaim deed to the appellant. The appellant, by leave of the court, filed an amended bill, in which he alleged that his father, Michael Hackleman, was a resident of the state of Indiana, and had three children, namely, himself, said Mary J. Connor, and said William E. Hackleman, deceased, the father of the appellees; that prior to the year 1865, and during the lifetime of said Mary J. Connor and said William E. Hackleman, said Michael, out of his lands then owned by him in the state of Indiana, gave certain parcels of the same to each of his said three children, but retained title thereto in himself; that each of the said children entered into possession of their respective parcels of land and lived thereon; that appellant, in 1865, concluded to remove to Coles county, Ill., and sold his home in Indiana, and with the money purchased the said S. E. 4 of section 27 in controversy, taking the title thereto in the name of his father, under an agreement between them that the Illinois land should be considered the land of the appellant in the same manner as had the parcel of land in Indiana; that the appellant should live upon the land in Illinois, improve and cultivate the same, and enjoy all the benefits therefrom, and that upon the death of his father it should be his property, and that the tract so set off to Mary Connor, sister of appellant, and the tract so set off to William E., brother of appellant, should belong to them; that his brother and sister well knew of this arrangement, and were entirely satisfied with it, and received and enjoyed the lands so allotted to them by their father; that in 1866 he built a dwelling house and made his home upon the west half of said tract, and resided there from thence until the year 1900,-a period of 34 years,— at which time he sold the said 80-acre tract to one Charles Whipple, to whom he delivered the possession thereof; that no conveyance was made to him by his father. The amended bill reasserted that the deed held by Mrs. Connor for the land was but a mortgage; that she reconveyed the east half of the said tract to him in 1875, but that she died in 1889 without having executed a conveyance for the west half of said tract. The prayer was for a decree quieting the title and for conveyances of the apparent title held by the

appellees. Upon a hearing the bill of the appellant was dismissed, and the prayer of the cross-bill filed by the appellees was granted, and decree of partition entered accordingly. This is an appeal to reverse the decree. The evidence left no doubt but that the conveyance to Mrs. Connor was a mortgage, that the mortgage obligation had been fully discharged, and that Mrs. Connor, in the year 1875, reconveyed the E. 21⁄2 of the said S. E. of said section 27 to the said appellant. At about the same time the appellant conveyed the said east half of said tract to one Robert Angel, and the cross-bill filed by the appellees asked no relief as to that 80-acre tract. No reconveyance was, however, made by Mrs. Connor of the west half of said tract. Why she did not reconvey that tract, also, is not disclosed; but it was very clearly shown by the evidence she should have released all such interest, and equally clear that she made no claim of right to hold it. Upon these points there seems to be no contention. We have very carefully read the evidence as preserved in the transcript of the record, and considered the briefs and arguments of counsel, and are impressed with the conviction that the decree is inequitable, and should be reversed, and the prayer of the appellant's amended bill granted. In the investigation of the evidence we have not considered the testimony of the appellant; the objection that he was not competent as to much to which he testified being well taken. It appeared from the testimony of Rebecca Hackleman (the mother of the appellees), Philip Heebe, Louis Hackleman (a son of appellant), and Amanda Atchison (a daughter of appellant) that Michael Hackleman, who was the father of the appellant, of said Mary J. Connor, and of W. E. Hackleman (father of the appellees), prior to the year 1865 placed each of his three children in possession of certain parcels of land owned by him in the state of Indiana, and gave all of them to understand that each of them was to own the lands so respectively given to them, though the father at that time retained the title to all the tracts. The record does not disclose when or how Mrs. Connor and the father of the appellees obtained title to the tracts of land so given to them, respectively, by their father; but no doubt is left that title did in some way pass from the father for their benefit. Mrs. Rebecca Hackleman, widow of the said William E. Hackleman and mother of appellees, testified that she knew that Michael Hackleman gave her husband and the appellant and Mrs. Connor each a farm in Indiana; that after her husband's death she bought the farm which was so set apart to Mrs. Connor, and paid Mrs. Connor $4,000 for it. Other competent testimony showed that William E. Hackleman lived on the land in Indiana given him by his father until he died, and that after his death his widow and the appellees, his children, lived upon it until it was sold for their benefit. That the appellees and their mother enjoyed

the proceeds of the sale of this land is not disputed by any of the testimony. Mrs. Rebecca Hackleman (mother of appellees) further testified that the appellant sold the land in Indiana so set apart to him by his father, and went to Coles county, Ill., and bought a farm, consisting of two 80-acre tracts, with the money received for the Indiana farm. This witness executed a quitclaim deed to the appellant, conveying to him all interest in the land, without exacting any consideration for the same. Louis Hackleman, son of the appellant, was about 15 years old when his father removed from Indiana to Illinois. He testified he knew about his grandfather dividing up a portion of the land owned by him among his three children; that his father (the appellant) sold the land in Indiana so given him by his father, and went to Illinois and bought the land in controversy; that when his father came back to Indiana he told his grandfather that he had bought the Illinois land in his (the grandfather's) name; and that his grandfather said he "ought to have taken the deed in his own name." The witDess further testified: "I heard grandfather and my father talk a good deal about the land. Grandfather told my father to go on the land in Illinois and live upon it, cultivate it, and improve it, and the land should be my father's land. * * * I talked with my uncle, William Edward Hackleman, the year before I came out here. I heard my uncle and grandfather both say that my father had land out here; that it was his land." Philip Heebe testified: "I knew them in Indiana. I knew about Michael Hackleman dividing out his land. John V. Hackleman lived on one piece; Mary J. Connor, with her husband, lived on another piece; and Edward Hackleman lived on another piece. This land originally belonged to Michael Hackleman. John V. Hackleman made improvements on the land that he owned in Indiana. He built a house on it. He sold the land he lived on. He used the money to pay for the piece of land that he bought out here in Coles county. This is the land in controversy." Amanda Atchison, a daughter of the appellant, testified: "I remember hearing my grandfather say that he had given his three children farms. Their names were Mary J. Connor, John V. Hackleman, and William Edward Hackleman. I knew of father making improvements upon the land he was given in Indiana. I remember of his building a new house. * * I remember of father selling the farm in Indiana. With the money he came to Illinois and bought here. I heard my grandfather speak of my father's farm. He always said, 'John's farm.' He never claimed any of it. I heard him speak of this land in Illinois. He always called it, as he would say, 'John's farm.'" Mrs. Connor survived until the year 1889. It was proven that Mrs. Connor was frequently at appellant's home in Illinois, while he lived on the land in controversy, at times remaining for two or three weeks on a visit with his

*

family. She loaned the appellant money, became his surety, and accepted the Illinois land as security from him therefor. Appellant's daughter, Maude Faroute, and her husband, E. T. Faroute, lived with Mrs. Connor at her home in Indiana. Mr. Faroute was in her employ for a period of about 15 years. He testified he had heard her talk about the division made by her father of portions of his land between herself, the father of the appellees, and the appellant, and she said that appellant sold the portion set off to him and came to Illinois. She also told him that she had loaned appellant money and had a mortgage on his land in Illinois. This witness also knew the tract of land which the father of the appellees got from his father. He and his brother rented it, after the death of the father of the appellees, from their mother, and lived upon it for about two years.

There is no evidence in the record having any tendency to contradict the testimony which we have recited with reference to the manner in which the said Michael Hackleman set apart to his three children portions of his land in Indiana, nor to dispute that Mrs. Connor and said William E. Hackleman, appellees' father, accepted and acquiesced in, and were entirely satisfied with, the manner adopted by their father, during his lifetime, of dividing his property among his children. It is clear they each enjoyed the benefit of the land so set apart to them, respectively, and that they knew their brother, the appellant, sold the portion given him by their father, and had invested the proceeds in the purchase of the lands in Illinois. That Mrs. Connor, from whom appellees claim to inherit a portion of the land in controversy, knew all the facts and regarded the appellant as the true and lawful owner of the land in Illinois, is removed beyond the possibility of question by the testimony; and that the father of appellees acquiesced in the division made by his father of his lands and accepted the portion assigned to him was clearly proven. Louis Hackleman testified that he had heard Michael Hackleman and William E. Hackleman, father of the appellees, talk about the family affairs, and heard them both say that the Illinois lands belonged to the appellant. Mrs. Rebecca Hackleman, mother of appellees, knew all of the material facts bearing upon appellant's right and title to the Illinois land, and executed a conveyance to him of all her apparent interest therein. The appellant lived upon the land in controversy for at least 34 years, claiming it as his own; built houses and barns upon it; reduced it to cultivation; drained and tiled it; and during all of that time his right was not only unquestioned by any one, but was fully acquiesced in and admitted by Mrs. Connor (who survived her father for a period of 20 years), by his brother (the father of the appellees) so long as he lived, and by the mother of the appellees during all of that

period of time. If the appellant and Mrs. Connor and William E., the father of the appellees, had inherited from their father the title to the lands of appellant, and to the lands in Indiana which their father set apart to said Mrs. Connor and said William E., and they had orally agreed upon the same division and partition of the lands that the evidence in this record shows their father had made, and each of them had thereafter occupied the lands in severalty, in conformity with the parol partition, a court of equity would compel conveyance between them in accordance with the parol partition. Nichols v. Padfield, 77 Ill. 253; Gage v. Bissell, 119 Ill. 298, 10 N. E. 238; Van Buskirk v. Van Buskirk, 148 Ill. 9, 35 N. E. 383. The father, in his lifetime, by an arrangement in the nature of a family settlement, designated certain of his real estate as the separate property of each of his three children. The children acquiesced in the arrangement, and each of them entered into the actual possession of the lands so allotted to them, respectively. Their rights, after the death of the father, ought in justice and fairness to be the same as if they had inherited the lands in common, and afterwards made by parol the same allotment that their father made during his lifetime and in which they each acquiesced. We know of no equitable reason or rule why a decree should not be granted securing to the appellant the same relief that would have been given him, had he and his brother and sister inherited the lands as co-tenants and made parol partition after the death of their father.

There is no force in the suggestion that the appellant cannot be heard to complain of the decree of the court or ask its reversal. The reason alleged is that said Whipple holds the title to the land upon which the decree operates, and that he has not complained of any error in the decree, and the appellant cannot complain for him. The appellant sold and conveyed the land to Whipple in October, 1900, prior to the filing of the petition of the appellees in April, 1901. There is unpaid to him $5,000 of the purchase money of the land, upon which time was given, and the payment of this sum is secured by a mortgage on the lands. The decree awards Whipple but one-half of the W. 1⁄2 of said S. E. 4 of section 27, and, if unreversed, would deprive appellant of the lien created by the mortgage given by Whipple on the other undivided one-half of the quarter section. In this respect the decree is prejudicial to him.

The decree dismissing the original and amended bills of the appellant, and granting the prayer of the cross-bill filed by the appellees, must be, and is, reversed, and the cause will be remanded, with directions to the circuit court to render a decree in accordance with the prayer of appellant's bill as amended.

Reversed and remanded, with directions.

(198 Ill. 274)

KIZER et al. v. WALDEN. (Supreme Court of Illinois. Oct. 25, 1902.) GAMING-RECOVERY OF LOSSES-STATUTESTREBLE DAMAGES-EVIDENCE

CROSS-EXAMINATION.

1. Cr. Code, § 132 (Starr & C. Ann. St. [2d Ed.] pp. 1299, 1300), provides that, if any one lose money to the sum of $10 at gaming, he may recover it of the winner, but that if he does not, without covin or collusion, sue for the money within six months, any person may sue and recover treble damages. Held, that "covin and collusion" refers to collusion between the winner and loser.

2. An action cannot be maintained under the statute by a third person where it appears the suit is actually in the interest of the loser.

3. In an action by a third person under the statute, the loser testified that he had never sued the winner in any manner for the money lost; and on cross-examination he was asked if he had not stated to a certain person that he had been advised to wait six months, and then sue in plaintiff's name. Held, that the cross-examination was proper, as it went to the question of the witness' interest, and, if answered in the negative, evidence to contradict him could have been introduced.

4. Cr. Code, § 132 (Starr & C. Ann. St. [2d Ed.] pp. 1299, 1300), provides that, if any one lose money to the sum of $10 at gaming, he may recover it of the winner, but that if he does not, without covin or collusion, sue for the money within six months, any person may sue and recover treble damages. In an action under the statute, evidence considered, and held that the question whether money had been lost to defendant, as charged, was for the jury.

Appeal from appellate court, Third district.

Action by James Walden against George Kizer and others. From a judgment of the appellate court (96 Ill. App. 593) affirming a judgment for plaintiff, defendants appeal. Reversed.

This is a special action on the case, based upon section 132 of the Criminal Code, and brought by James Walden, the appellee, in the city court of Mattoon on September 1, 1900, against the appellants, George Kizer, David Kizer, and John Kizer, to recover treble the sums of money claimed to have been lost to the appellants at gaming by Frank Walden, appellee's brother, at various times within the periods specified in the declaration. The plea of the general issue was filed. Upon trial before the court and a jury, the jury returned the following verdict: "We, the jury, find for the plaintiff, and we assess his damages at $720." Motion for new trial was overruled, and judgment was rendered upon the verdict. An appeal was taken from this judgment to the appellate court, where the same has been affirmed. The present appeal is prosecuted from such judgment of affirmance.

The second count of the amended declaration alleges that within the period between January 1, 1898, and October 25, 1899, the appellants kept a gambling house in Mattoon, where men bet money on games of cards,

1. See Gaming, vol. 24, Cent. Dig. § 110.

etc., with appellants; that said Frank Walden on April 21, 1898, and from that time to October 25, 1899, at the gambling house so kept by appellants, at various times engaged in wagering or betting money or other property on said games of cards, etc., with appellants, and did at such times lose and pay to appellants at each time or sitting an amount of money or property exceeding in value the sum of $10, and that the total amounts of money or property so lost or paid at each time or sitting exceeding in amount $10, to the appellants, by said Frank Walden, was $1,500, contrary to the form of the statute in such case made and provided; that said Frank Walden did not, within six months from the time he lost and paid said several sums of money, bring suit to recover the same, or any part thereof, whereby, and by force of the statute, etc., an action has accrued to the appellee to have and recover of and from the appellants, as well for the county of Coles as for himself, the sum of $4,500, being treble the amount in value of the several sums of money lost and paid by Frank Walden to the appellants, to the damage of the plaintiff, the appellee, and the said county of Coles, of $5,000, etc.

The

At the close of the evidence on both sides, the court gave the following instructions for the appellee: "(1) The court instructs the jury to find the issues for the plaintiff, and assess his damages at three times the total amount of the losses of the said Frank Walden to the defendants in sums equal to, or exceeding in amount, the sum of $10 at each time or sitting, as the same may be proved by the evidence." "(4) The form of the verdict will be, 'We, the jury, find for the plaintiff, and we assess his damages at $court refused all the other instructions asked by appellee (plaintiff below), being five in number. The court gave the following instructions for the defendants: "(2) The court instructs the jury that the checks introduced in evidence, including those indorsed by George Kizer, are not in themselves evidence that Frank Walden lost money at gaming, but are mere memoranda, and it devolves upon the plaintiff to show by a preponderance of the evidence that he cashed or caused to be cashed each of said checks, and that the money obtained thereon was lost by him at gaming to these defendants in amounts at each time or sitting equal to or in excess of $10, before the plaintiff can recover for any amount claimed to have been lost by Frank Walden on his checks. (3) The court instructs the jury that you are the judges of the weight and credibility of the evidence of the various witnesses in this case. In determining the weight to be given to the testimony of the various witnesses, it is right and proper for you to take into consideration the relationship, if any, of the witnesses to the parties; their interest, if any, in the event of the suit; their conduct and demean

or while testifying; their apparent fairness or bias, if any such appears; their appearance on the stand; the reasonableness of the story told by them,-and to give such credit and weight to the testimony of each witness as, under all the facts and circumstances proven on the trial, such witness, in your judgment, seems to be entitled to." The court refused all the other instructions asked by appellants, being 14 in number. After the jury retired, it returned into court for further instructions; and the court, on its own motion, and without notice to the appellants or their counsel, gave the following instruction: “(5) The court instructs the jury that when a player enters a room where several games of chance are in progress, and he engages in play, and passes from one game to another, playing now upon one game and then upon another, so long as he thus continues to play it is all one time or sitting, within the meaning of the statute."

Craig & Kinzel, for appellants. Andrews & Vause, for appellee.

*

MAGRUDER, C. J. (after stating the facts). 1. Section 132 of the Criminal Code provides that "any person, who shall, at any time or sitting, by playing at cards, dice or any other game or games, or by betting on the side or hands of such as do game, lose to any person so playing or betting, any sum of money or other valuable thing, amounting in the whole to the sum of $10.00, and shall pay or deliver the same or any part thereof, the person so losing and paying or delivering the same, shall be at liberty to sue for and recover the money, goods or other valuable thing, so lost and paid or delivered, or any part thereof, or the full value of the same, by action of debt, replevin, assumpsit or trover, or proceeding in chancery, from the winner thereof, with costs, in any court of competent jurisdiction," etc. And said section concludes as follows: "In case the person who shall lose such money or other thing, as aforesaid, shall not, within six months, really and bona fide, and without covin or collusion, sue and with effect prosecute for such money or other thing, by him lost and paid or delivered, as aforesaid, it shall be lawful for any person to sue for, and recover treble the value of the money, goods, chattels and other things, with costs of suit, by special action on the case, against such winner aforesaid; one-half to use of the county, and the other to the person suing." 1 Starr & C. Ann. St. (2d Ed.) pp. 1299, 1300. We have held that the legal effect of this section of the Criminal Code is to limit the time in which the loser may bring his action to six months, and to bar the bringing of such action after the lapse of that time, and that, after that period has elapsed without a suit by the loser, any other person may sue the winner and re