the peace to be elected within such city and town, but that the number elected shall not exceed the number allowed by law to other towns of like population. In pursuance of said section 6 of the act of 1877, the common council of the city and town of East St. Louis passed the ordinance of March 20, 1889, providing for the election of two justices of the peace, and no more, in that town and city. that the population of said city and town in 1880 was about 10,000, and in 1889, 13,561; that the board of election commissioners and the board of canvassers of said election canvassed all the votes for justice of the peace, and declared but two of the eleven candidates elected, they standing first and second on the list; that the returns showed the election of three others, including petitioner, if five were to be elected; that by section 1 of "An act to provide for the election and qualifica- If the general law of the state is applicable tion of justices of the peace," etc., approved to the town and city of East St. Louis, the April 1, 1872, in force July 1, 1872, there petitioner was elected a justice of the peace, shall be elected, in counties under township and is entitled to hold the office. But, if secorganization, on first Tuesday in April, 1885, tion 6 of the act of 1877 is valid, then the and every four years thereafter, two justices city council of East St. Louis had the right of the peace and two constables, and one to limit the number of justices in that city justice of the peace and one constable for and town to two, and petitioner was not every 1,000 inhabitants exceeding 2,000 in- elected. Section 29 of article 6 of the constihabitants of such town: provided, the num-tution provides as follows: "All judicial ofber in no one town shall exceed five justices ficers shall be commissioned by the governor. and five constables; that on April 5, 1889, All laws relating to courts shall be general petitioner demanded a certificate of election and of uniform operation," etc. A justice from the city-clerk, ex officio town-clerk of of the peace is a judicial officer, and by secEast St. Louis, and the same was refused; tion 8, c. 79, Rev. St., the legislature has rethat on the same day he made a similar de- quired his commission to be issued by the mand upon the county clerk of said county, governor. A "court" has been defined to tendering an official bond, with responsible be that "body in the government to which sureties, and the oath of office duly signed the public administration of justice is deleand sworn to; that said clerk accepted and gated." 1 Bouv. Law Dict. 413. The public filed said oath and bond, but refused to grant administration of justice is delegated to justhe certificate of election, etc. The defend-tices of the peace. They are among the ant, Rhein, filed a general demurrer to the petition. bodies in whom the constitution vests the judicial powers of the state. Const. art. 6, § Hite & Dill, for plaintiff. M. W. Schae- 1. While engaged in the performance of fer, F. G. Cockrell, and E. R. Davis, for de- their public duties as judicial officers, they fendant. are "courts," within the meaning of said section 29. Laws which fix the number of justices of the peace to be elected within a courts," and must therefore be general and of uniform operation. The act of 1877 provides, that, in a town which has been organized out of territory embraced within a city, the city council shall determine the number of justices to be elected therein, subject to certain limitations, while in all other towns, in counties under township organization, the number of justices is fixed by law in proportion to the population of the town. MAGRUDER, J., (after stating the facts as above.) The question involved in the pres-specified territory are laws "relating to ent case is this: Where a city and town occupy the same territorial limits, has the common council of such city the power to determine how many justices of the peace shall be elected in such city and town? Section 1 of the general law of the state in regard to justices of the peace, being chapter 79 of the Revised Statutes, provides that, in counties under township organization, there shall be elected in each town two justices of the peace, and one justice of the peace for every 1,000 inhabitants exceeding 2,000 inhabitants of such town: provided, that no more than five justices of the peace shall be elected in any town. This law went into force on July 1, 1872. Afterwards, in 1877, the legislature passed an act entitled "An act to authorize county boards in counties under township organization to organize certain territory situated therein as a town," approved May 23, 1877, in force July 1, 1877, the sixth section of which (Rev. St. Ill. 1889, c. 139, § 141,) provides that, in such cities and towns as are therein described, -that is to say, where the territory within a city has been organized into a town, and the city and town have the same territorial limits and boundaries, the city council may, from time to time, regulate the number of justices of v.22N.E.no.22-54 If there is one mode of determining the number of justices in one class of towns, and a different mode in all other towns, the law upon the subject is not of uniform operation as to all the towns. It follows that section 6 of the act of 1877 is unconstitutional, as being special in its character. The last clause of that section provides that the number elected to the office of justice of the peace "shall not exceed the number allowed by law to other towns of like population." Thus, by its own terms, the section refers to another law upon the subject of determining the number of justices, which is of a more general character than the act of 1877. The fact that section 6 applies to that particular class of towns where the city and town have the same territorial boundaries does not relieve it of the unconstitutional feature here no ticed. A justice of the peace, though elected | juries, and for injuries to personal property, by the people of a town, has a jurisdiction as hereafter stated. The trial below resulted which is co-extensive with the limits of the in verdict and judgment in favor of the county in which such town is located. His plaintiff, and the appellate court has affirmed process issues to any part of the county, and the judgment of the circuit court. 24 Ill. suits may be brought before him by persons App. 250. The case is brought here by apresiding anywhere in the county. People v. peal from the appellate court. Meech, 101 Ill. 200. Therefore no classification of towns can be made which is based upon their relations to justices of the peace. The territorial jurisdiction of a justice is not circumscribed by the territorial limits of a town. We see no reason why the constitutional provision, which requires a law relating to such judicial officers to be general and of uniform operation, should be subject to any exception in favor of the class of towns mentioned in the act of 1877. In People v. Hazelwood, 116 Ill. 319, 6 N. E. Rep. 480, the part of the act of 1877 which was chiefly under consideration was so much of section 5 as provides that the city council in such city and town may provide by ordinance that the offices of treasurer and town collector shall be united in the same person. The validity of section 6 was not involved in that case. There the power to consolidate certain town and city offices in towns of the class therein described was held to have been rightfully vested in the city council, but the power of the city council to regulate the number of justices to be elected in the town was not considered. For the reasons thus stated we think that the petition shows sufficient grounds for the issuance of the writ of mandamus. The demurrer is accordingly overruled, and the writ is awarded. Mandamus awarded. 1. Rev. St. Ill. 1889, c. 114, § 68, provides that railroad companies must furnish their locomotives with bells and whistles, which must be sounded "at least 80 rods from the place where the railroad crosses any public highway;" and Id. c. 131, § 1, declares that "the word highway,' 'road, or 'street' may include any road laid out by any town or county of this state." Held, that the first section applied to railroads crossing the streets of an incorporated town. 2. Between the close of the testimony and the beginning of the argument a juryman drank with the plaintiff's attorney at a saloon, and talked with him about another suit in which the juryman's wife was a party, and in which said attorney represented the other party, the suit having been that day compromised. Held cause for setting aside a verdict in plaintiff's favor. Appeal from appellate court, fourth district. Lansden & Leek, for appellant. Wm. Winkelmann, for appellee. The declaration avers, in substance, that on June 15, 1886, the plaintiff was riding in his wagon, drawn by a pair of mules, along the public highway from the town of Columbia, in Monroe county, to the town of Centerville, in St. Clair county, and, while crossing the railway track of the defendant at the point where such track crosses the highway in the incorporated town of Columbia, his team was struck by a passing train; that plaintiff was thrown from the wagon, and received severe bodily injury; that the wagon was so broken and injured as to be useless; that one of the mules was killed, and the other had one of his legs broken, etc.; that plaintiff was using all reasonable care and diligence to avoid an accident; that the injuries resulted from the negligence and carelessness of the servants of the defendant in control of the locomotive and train, in not ringing a bell or blowing a whistle at a distance of at least 80 rods from the crossing of the highway, and in not continuing such ringing or whistling until the highway was reached. 1. It is claimed that the charge of a failure to ring a bell or blow a whistle is not sustained by the evidence, and that the plaintiff was guilty of a want of ordinary care. These are questions of fact, and we cannot consider them. 2. The trial court was requested by the defendant to instruct the jury that section 6 of an "Act in relation to fencing and operating railroads," approved March 31, 1874, (Starr & C. St. c. 114, § 68, p. 1927,) does not apply to the crossing of railroads with streets within the corporate limits of a city or town; "and that if it should appear from the evidence that the Centerville road is a street in the town of Columbia, and that the crossing in question is within its corporate limits, then this statute has no application to the case at bar." The court refused to give the instruction, and such refusal is assigned as error. Section 6 is as follows: "Every railroad corporation shall cause a bell of at least thirty pounds' weight and a steam-whistle [to be] placed and kept on each locomotive engine, and shall cause the same to be rung or whistled, by the engineer or fireman, at the distance of at least eighty rods from the place where the railroad crosses or intersects any public highway, and shall be kept ringing or whistling until such highway is reached." [Rev. St. Ill. Ed. 1889, c. 114, § 68.] The are not limited, in their signification, to the words "any public highway," as here used, MAGRUDER, J. This is an action on the case, brought in the circuit court of Monroe county by the appellee against the appellant company, to recover damages for personal in-common public roads in the country, but their meaning is broad enough to include streets and roads in incorporated cities and towns. Shearman and Redlield, in their work on the Law of Negligence, (volume 2, § 333, | ing the said cause, Thomas Allen by name, 4th Ed.) say: "The term highway' is ge- knocking their glasses together as though in neric, inclusive of all public ways, and means token of pledge, and then draining their a public road which every person, whether an glasses of beer." "W. H. Horine, Jr., of lawinhabitant or a stranger, has a right to use ful age, being duly sworn, says that he is the for passage and traffic. The term will there- state's attorney for said county of Monroe; fore include streets in cities, footways or side- that whilst the trial of the above case was in walks, turnpikes, plank-roads, and bridges." progress, and after the conclusion of the tesThe statement of the text-writers is sus- timony in the case, but before the closing tained by numerous authorities. To the same arguments in said cause, about 9:30 P. M. of effect, also, are State v. Mathis, 21 Ind. 278; March 29, 1888, he saw counsel for plaintiff City of Detroit v. Blackeby, 21 Mich. 84; Jones in said cause, William Winkleman, in the sav. Inhabitants of Andover, 6 Pick. 58; Davis loon on the ground floor of the City Hotel, v. Smith, 130 Mass. 113; State v. Wilkinson, opposite the court-house, in the town of 2 Vt. 480. In the latter case the supreme Waterloo, drinking beer with one of the court of Vermont say: "A common street jurors then engaged in trying the above and public highway are the same, and any cause, Thomas Allen by name, knocking their way, which is common to all the people, may glasses together as if drinking to each other's be called a "highway.'' health, or otherwise pledging themselves." In Railroad Co. v. Dunn, 78 Ill. 197, the "Albert J. Kunster, being first duly sworn, precise question here discussed did not arise; of lawful age, says he is the proprietor of the but it was held that the failure to ring a bell drug store adjoining the City Hotel, in Wator blow a whistle, as required by this statute, erloo, opposite the court-house; that about was an act of negligence on the part of a rail- half past nine P. M. of March 29, 1888, he was road company when one of its trains was in the saloon attached to said hotel, and saw crossing a street in the city of East St. Louis. William Winkleman, the attorney, and In paragraph 16 of section 1 of "An act to Thomas Allen, a juror, standing together at revise the law in relation to the construction the saloon counter, facing each other, and of the statute," approved March 5, 1874, clinking together their glasses of beer, and (Starr & C. St. c. 131, p. 2331,) occurs the talking confidentially together." William following definition: "The word highway,' Winkelman, being sworn, testified: "After road,' or 'street' may include any road laid the adjournment of the court I went to out by the authority of the United States, or Bickelhaupt's saloon. Werner, the attorney of this state, or of any town or county of this for the railroad company, the state's attorstate, and all bridges upon the same." [Rev. ney, ex-Sheriff Wilson, and some fifteen or St. Ill. c. 131, § 1.] In the case at bar, the twenty other persons, were in the saloon. Centerville road, where the appellee and his Some one called me to take a drink. I thought property were injured, appears to have been it was ex-Sheriff Wilson. I was standing laid out by the authority of the town of Col- close to the counter, and near me was James umbia, and is therefore embraced within the Allen. We took the drink, and, turning statutory meaning of the word "highway." around, I spoke to Allen on the suit with The case in Mississippi, to which counsel re- his wife and Mrs. Rebenock, which had therefers us, is opposed to the weight of authority tofore been compromised. We spoke in a upon this subject. The cases cited from Maine loud voice. We never mentioned the suit of are based upon a statute in that state which Davis against the Mobile & Ohio Railroad restricts the meaning of the word "highway" Co. This was in the evening after the adto county roads and "county ways," and ex-journment of court." James Allen, being cludes "town ways." These cases have no sworn, testified: "I was in Bickelhaupt's application here. We are of the opinion that saloon. Some man called me, I think it was there was no error in refusing the instruction asked for. 6 Wilson, to take a drink. I was standing near Mr. Winkleman, who also drank. There 3. The next error assigned is the refusal was a touching of glasses, and Mr. Winkleof the circuit court to grant a new trial for man being nearest to me, we touched glasses, reasons set forth in certain affidavits pre- and then spoke about the suit between my sented in support of the motion for a new wife and Mrs. Rebenock, which had at that trial. The following are the affidavits: day been settled. Not a word was said in "Personally appeared before me, the under- that conversation or any other about the suit signed, clerk of the circuit court of Monroe of Davis v. The Railroad Company. Mr. county, Charles E. Weller, who, being duly Winkleman was Mrs. Rebenock's lawyer in sworn, says that he acted as stenographer the suit with my wife. All this we spoke in in reporting the testimony in the above case; the saloon. It was in a loud voice, so that it that upon the adjournment of the court, at could be heard. I think some fifteen or about half past nine in the evening, at the twenty persons were in the saloon at the conclusion of the testimony in the case, he time when we had this drink. The railroad stepped into a saloon immediately opposite attorney and his witnesses, at court, some the court-house, in the town of Waterloo, and two or three of them,-were standing close there saw the plaintiff's attorney, William to the counter, on the south-east corner of Winkleman, standing at the counter of the the counter, and could have heard the consaloon with one of the jurors engaged in try-versation." W. S. Burroughs, being sworn, testified: "I am the sheriff of this county. I were each entitled to a fair and impartial trial After court had adjourned I walked over to of the controversy between them. The setBickelhaupt's saloon. Found several jurors tlement of a long pending lawsuit may have there. Was standing close to Mr. Winkle-inspired Allen with such feeling of gratitude man and Mr. Allen. I invited three or four as to bias his judgment as a juror. The persons to drink with me, and, seeing Winkleman and Allen there, I asked them also. After the drinking I saw Winkleman and Allen were having some conversation in an ordinary tone of voice, and I think it was about the old case of Allen v. Rebenock. I don't think they referred in any way to the Davis Case. In asking Winkleman and Allen to drink with us I had no purpose in getting them together, and the matter was not from any design on my part. There was nothing unusual in what occurred at the bar." It appears from these affidavits that the wife of Allen, one of the jurymen, had for some time been engaged in litigation with one Mrs. Rebenock; that the attorney of Mrs. Rebenock in that litigation was also the attorney of the plaintiff in the suit at bar; that the case of Allen v. Rebenock was settled and compromised during the trial of the present suit, and on that day of the trial on which the evidence was closed, the next step being the argument of the cause before the jury; that on the evening of the day on which such compromise was effected the husband ⚫ of one of the parties, while acting as juror in the present case, and the attorney of the other party, while acting as counsel in the trial of the present case, were drinking together, and talking about the litigation so compromised. We cannot know that the juror Allen may not have been influenced by the circumstances detailed in these affidavits. His wife's "old case" against Mrs. Rebenock had been settled that very day, and, while we do not know what the terms of settlement were, yet they must be presumed to have been satisfactory to Allen, as he was "clinking" glasses in a friendly way with the attorney of his wife's opponent. Why was the compromise of this "old case" made while the present suit was on trial? It was highly improper for the juror Allen and the attorney of the present appellee to be drinking together and talking about that old litigation just then compromised, while they were engaged, the one as juror and the other as attorney, in the trial of the case at bar. Their conduct was calculated to create the impression that the compromise of the "old case" might have some relation to or bearing upon the result of the case then pending. sense of obligation for a favor received is a subtle emotion, and often unconsciously dominates the faculties. It is better that a juryman rest under no obligation, nor under any apparent obligation, to either of the parties upon whose rights he is called upon to adjudicate. In Bonnet v. Glattfeldt, 120 Ill. 166, 11 N. E. Rep. 250, we went just as far as our sense of duty would permit us to go in overlooking such an appearance of evil as is presented by the present record. The warning which we there gave seems to have gone unheeded. In that case we said: "There was clear impropriety in this association of the party with the juror. Such appearance is calculated to impair public confidence in the proper administration of the law, which it is so desirable to have prevail. * ** In Stafford v. City of Oskaloosa, 57 Lowa, 748, 11 N. W. Rep. 668, there was reversal of a judgment solely because of mere association, during the time of the trial, of the counsel of the prevailing party with one of the jurors, where there had been nothing said respecting the case, and the court was satisfied that nothing wrongful was designed or attempted. It was well said in Bradbury v. Cony, 62 Me. 223, in speaking upon the subject of the interference by a party with jurymen while a cause is pending: In the trial of a cause the appearance of evil should be as much avoided as evil itself.' See, also, Martin v. Morelock, 32 Ill. 485; Lyons v. Lawrence, 12 Ill. App. 531. 6 In the case of Knight v. Inhabitants of Freeport, 13 Mass. 218, the court says: "Too much care and precaution cannot be used to preserve the purity of jury trials. The attempt to influence the juror in this case was grossly improper and ought to be discountenanced. It is not necessary to show that the mind of the juror thus tampered with was influenced by this attempt. Perhaps it is not in his power to say whether he was influenced or not. If he was, there was sufficient cause to set aside the verdict; and if he was not, and the party who has gained the verdict has a good cause, he will still be entitled to a verdict upon another trial. We cannot be too strict in guarding trials by jury from improper influence. This strictness is necessary to give due confidence to parties in the results of their causes; and every one ought to know The jury-box must be free from improper that for any, even the least, intermeddling influences. Any association of any kind by with jurors, a verdict will always be set either party, or the counsel of either party, aside." In Cottle v. Cottle, 6 Greenl. 140, to a cause on trial, with any one of the jury- the supreme court of Maine, in speaking upmen, is calculated to give rise to suspicion on this subject, says "It is insisted that the and uncertainty as to the fairness of the ver- juror was not in fact influenced, and that dict. If the administration of justice is to be justice has been done between the parties. kept pure and above reproach, every appear- It may be so; but it may be useful to the ance of a want of impartiality on the part of party to learn that a good cause may be injuries must be discountenanced. In the pres-jured, but cannot be promoted, by conduct of ent case, Davis and the railroad company this sort, and to the public generally to know that it will be tolerated in no case whatever." We think that the circuit court erred in refusing to grant the new trial, and accordingly the judgments of the appellate and circuit courts are reversed, and the cause is remanded to the circuit court. (130 Ill. 69) PENDLAY et al. v. EATON et al.1 (Supreme Court of Illinois. Oct. 31, 1889.) TESTAMENTARY CAPACITY-BURDEN F PROOF. When the evidence on the issue of testamentary capacity is conflicting, it is prejudicial error to charge that upon the whole case the burden is upon the proponent to establish the testator's sanity; the true rule being that, after establishing sanity by the subscribing witnesses, the legal presumption that every man is sane casts the burden on the contestant to show the contrary. Following Wilbur v. Wilbur, 21 N. E. Rep. 1076. Error to circuit court, Effingham county; WILLIAM C. JONES, Judge. S. F. Gilmore, Wm. B. Wright, and Wood Bros., for plaintiffs in error. R. C. Harrah and E. N. Rinehart, for defendants in error. CRAIG, J. This was a bill in equity, brought by a portion of the heirs of Andrew Pendlay against his widow and son Robert N. Pendlay, to set aside an instrument in writing purporting to be the last will and testament of Andrew Pendlay, deceased, on the ground that the testator was not of sound mind and memory, and was wholly incapable of making a will, and upon the further ground of undue influence exercised over the testator property he devised to his son Robert N. Pendlay. Whether the testator at the time of making the instrument purporting to be his last will and testament possessed the necessary testamentary capacity to make a valid will is a question upon which the evidence is conflicting, and, as the facts of this case will have to be passed upon by another jury, we refrain from expressing any opinion on the weight of the evidence. It is contended that complainants' second instruction is erroneous, because isolated portions of the evidence are singled out and brought prominently before the jury. One charge in the bill was that the will was executed through the undue influence of the defendant, and this instruction related to that branch of the case. The jury, however, did not find against the will on that question, and, while we think the instruction was er roneous, it is manifest, from the verdict, that it did no harm, and we would not be inclined to reverse on account of this instruction, if the law had been correctly declared on other questions. The fourth instruction given for the complainants was as follows: "The court instructs the jury that the burden of sustaining the will in this case is by law cast on defendant, who avers its validity; and unless the defendant has shown by the burden of proof that said Andrew Pendlay, at the time he executed said will, was of sound mind and the last will and testament of said Andrew memory, you should find said will not to be Pendlay." The defendant put in evidence by his son Robert N. Pendlay. The defend- the will, and the testimony of the subscribing ants put in an answer to the bill, and the witnesses given when the will was admitted court directed an issue to be made up whether to probate, which was prima facie evidence the writing referred to in the bill and answer, purporting to be the last will and testament of Andrew Pendlay, was his last will and testament or not. On a trial of the issue before a jury a verdict was returned that "the said Andrew Pendlay, at the time of making said will, was not of sound mind and disposing memory, and capable of making a will, and that the will in controversy is not the will of said Andrew Pendlay." The court overruled a motion for a new trial, and decreed that the instrument in writing, purporting to be the last will and testament of Andrew Pendlay, deceased, and the probate thereof, be set aside, and declared null and void. From that decree defendants sued out this writ of error. It appears, from an examination of the record, that the testator was a resident of Jackson township, Effingham county. On February 27, 1888, he became sick. He gradually grew worse, until Saturday, March 3d, when he died. The will in question was executed on Friday, the day before his death. By the terms of this will, the testator gave to his wife such interest in his estate as she would take under the statute of descents had no will been made, and all the rest of his of its validity. The statute in express terms In Hol |