Henry Bond and John Shinn were indicted in the Circuit Court of Clinton county, on the 7th of March, 1865, for an assault, with intent to murder one John Love. The cause was afterward removed into the Circuit Court of Marion county on change of venue. A trial was had in that court at the March Term, 1865, in the progress of which the court, on behalf of the prosecution, gave this instruction :

"2. And if the jury believe, from the evidence, that Bond and Shinn were together and acted in concert at the time of the assault to murder was made, they should find them equally guilty."

The jury returned the following verdict:

"We, the jury, find defendants guilty, and fix the term of their confinement in the penitentiary at one year each."

A motion for a new trial was overruled, and judgment was entered upon the verdict. The defendants thereupon sued out this writ of error, and now allege the instruction was erroneous in assuming the defendants to have made an assault to murder, when that should have been left to the jury to determine; and that the verdict was insufficient in not specifying of what offense they were found guilty.

Mr. H. K. S. O'MELVENY, for the plaintiff in error.

Mr. JUSTICE BREESE delivered the opinion of the Court:

The objection to the second instruction given for the people is well taken. It is this: "If the jury believe, from the evidence, that Bond and Shinn were together, and acted in concert, at the time of the assault to murder was made, they should find them equally guilty."

The objection is obvious. By this instruction the jury are plainly told that the defendants made an assault to murder. No other meaning can be given to the language used. It amounts to a finding by the court of the very fact the jury were sworn to try. The intent with which the assault was made, if one was made, was for the jury to determine. It might not have been to do murder. Instructions should be given, as this

Syllabus.

court say, in Hopkinson v. The People, 18 Ill. 264, and in Sherman v. Dutch, 16 id. 283, and in other cases, hypothetically, and be so drawn as to state the law upon a supposed state of facts to be found by the jury, and not assume the facts as proved. Eames v. Blackhart, 12 id. 195; Wall v. Goodenough, 16 id. 415.

Upon the other point made, that the verdict is not specific, that it does not find the defendants guilty of any offense, we have to say that in the case of Armstrong v. The People, 37 Ill. 459, it was held such a verdict was sufficient. That it found, substantially, the party guilty of the offense charged. For the error in giving the second instruction the judgment is reversed and the cause remanded.

Judgment reversed.

WHITING W. SMITH

v.

JAMES PRICE.

1. WHAT WILL PASS BY A DEED—fruit-trees and ornamental shrubbery in a nursery. While fruit-trees and ornamental shrubbery, grown upon premises leased for nursery purposes, would probably be held to be personal property, as between landlord and tenant, yet, as between vendor and vendee, such trees and shrubbery are annexed to and form a part of the freehold, and would pass with a sale of the land.

2. PAROL EVIDENCE-verbal reservation of fruit-trees on sale of land. It would be a violation of the most familiar rule of evidence to receive proof of a verbal arrangement contemporaneous with a written contract, and impairing its legal effect.

3. So where the owner of land upon which fruit-trees and ornamental shrubbery are growing for nursery purposes, executes a contract of sale for the land in such terms as to pass the trees and shrubbery to the purchaser, the vendor will not be permitted to show that there was a verbal agreement for their reservation, as that would be inconsistent with the legal import of the written contract between the parties.

4. INJUNCTION—when allowable. A purchaser of land upon which fruit-trees and ornamental shrubbery were growing for nursery purposes, being in possession under his contract of purchase, the vendor removed a part of the

Opinion of the Court.

shrubbery, and claimed the right, under a verbal reservation, to move much more. Held, this was a proper case for an injunction at the suit of the purchaser to restrain the vendor from removing any more trees or shrubbery from the premises.

WRIT OF ERROR to the Circuit Court of Marion county; the Hon. SILAS L. BRYAN, Judge, presiding.

The case is stated in the opinion of the Court:

Messrs. WILLARD & GOODNOW, for the plaintiff in error.

Mr. H. K. S. O'MELVENY, for the defendant in error.
Mr. JUSTICE LAWRENCE delivered the opinion of the Court.

This was a bill in chancery filed by Smith, plaintiff in error, to enjoin Price, the defendant in error, from removing certain fruit-trees growing in a nursery, and certain ornamental shrubbery, from a tract of land sold by the latter to the former. Price answered, (the oath to his answer having been waived,) and on the coming in of the answer a motion was made to dissolve the injunction. A replication was filed and the case seems to have been irregularly set down for final hearing at the same time with hearing the motion to dissolve, and to have been finally disposed of upon the pleadings, and the affidavits filed for and against the motion. As no exception was taken to this proceeding, it was probably had by consent. The court rendered a decree making the injunction perpetual as to a part of the trees, and dissolving it as to a part; and from this decree the complainant prosecutes a writ of error.

The defendant admits a sale of the land by himself to the complainant, and that the latter went into possession under the contract of purchase, but insists that one of the terms of the sale was a verbal reservation of the nursery trees and some other ornamental shrubbery. The proof made in the affidavits upon this point is uncertain and contradictory.

While fruit-trees and ornamental shrubbery grown upon premises leased for nursery purposes would probably be held

Opinion of the Court.

to be personal property, as between the landlord and tenant, yet there is neither authority nor reason for saying that, as between vendor and vendee, such trees and shrubbery would not pass with a sale of the land. They are annexed to, and a part of the freehold. As between vendor and vendee, even annual crops pass with the land where possession is given. Bull v. Griswold, 19 Ill. 631. Under the contract of sale and the delivery of possession by Price to Smith, the latter became the owner of the trees as well as of the soil, and it would be` a violation of the most familiar rules of evidence to receive proof of a verbal arrangement cotemporaneous with the written contract and impairing its legal effect. The parties, in executing the written instrument, deliberately made it the exclusive evidence of the terms of their agreement. This instrument shows a sale of the land in such terms as to pass the trees. No reservation is made, and to permit the vendor now to show that there was a verbal agreement for their reservation, would be to permit him to prove a verbal contract, inconsistent with the legal import of that executed by the parties under their hands and seals. This the law forbids. We find nothing in the case to make it an exception to this familiar principle, and it is therefore unnecessary to advert to the evidence in detail. As the record shows that Price had actually removed a part of the shrubbery, and claimed the right to move much more, it was a proper case for an injunction, and the decree will be reversed and the cause remanded, with instructions to the court to proceed in conformity with this opinion.

Decree reversed.

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JOHN W. CORGAN

v.

AARON A. FREW.

1. PROMISSORY NOTE-what constitutes—and, herein, of the use of the check or dollar mark. An instrument was made as follows:

" $500.

WAVERLY, December 6, 1861.

"On or before the 20th of next May I promise to pay C. P. Christian, or his order, five hundred for value received of him," etc.

Held, to be a promissory note, and assignable as such.

2. While the check or dollar mark in the margin cannot be used to contradict what is clearly written in the note, yet if from any cause there is uncertainty as to the sum intended to be written in the body of the instrument, the check mark may be resorted to for the purpose of explaining the instrument in that regard.

3. So in this case, the words "five hundred," written in the body of the instrument, by reference to the dollar mark in the margin, are shown to mean five hundred dollars.

4. WITNESS-COMPETENCY-maker of a note, as between the assignor and assignee. As between the assignor and assignee of a promissory note, for all purposes except to impeach its validity or to prove its payment, the maker is a competent witness,-his interest is equally balanced between the parties.

5. So where the assignee seeks to recover against his assignor upon the ground that the maker was insolvent and a suit against him would have been unavailing, the fact of his insolvency may be proved by the maker himself.

6. PAROL EVIDENCE—whether a party has conveyed away his lands. And in proving the fact of his insolvency by the maker, there is no objection to asking him whether he was the owner of real estate, as well as of personal property.

7. WITNESS-of the various modes of impeachment-or the rule controlling juries in judging of the credibility of a witness. It is not essential, in order to justify a jury in refusing to give credit to the testimony of a witness, that he should be impeached by evidence of bad character.

8. The usual mode of impeachment is to prove by other witnesses that his character for truth and veracity among his neighbors is so bad that he is. unworthy of belief.

9. Yet a jury might be warranted in regarding a witness unworthy of credit from his relationship to the parties, his manner and appearance on the stand, or his evident bias in favor of one of the parties.

10. DELIVERY -when necessary to complete a sale of personal property. between the parties, a delivery is not essential to a complete safe of personal

ARVARD