Briefs of Counsel. Opinion of the Court.

similiter was added. Subsequently plaintiff, by leave, filed an additional replication, thus: "The plaintiff, by leave of the court first had and obtained, for further replication to the plea of the defendants filed herein on November 24, 1882, says precludi non, because he says that he did not and has not refused to execute and deliver, or to cause to be executed and delivered, to said Gibson, the deed in said plea mentioned, as in said plea alleged," etc. The court sustained a demurrer to this replication, but plaintiff elected to stand by the replication and refused to plead over.

The jury, on the trial, returned a verdict for the defendant, upon which the court gave judgment, and that judgment, on appeal, was affirmed by the Appellate Court.

Messrs. MOORE & WARNER, for the appellant:

Until demand of conveyance, and neglect or refusal to execute the same, there can not be said to be any failure of the consideration. Lough v. Bragg, 18 Minn. 121; Willets v. Burgess, 34 Ill. 494; Gage v. Lewis, 68 id. 604; Foster v. Jared, 12 id. 451; Sage v. Raney, 2 Wend. 532; Duncan v. Jeter, 5 Ala. 604; Giles v. Williams, 3 id. 316.

Mr. JAMES S. EWING, for the appellees:

There was no error in sustaining the demurrer to appellant's additional replication. The cases cited are where a deed was made which failed to convey the title to the proper tract. In those cases the defendant had the covenants of warranty upon which to rely.

Mr. JUSTICE SCHOLFIELD delivered the opinion of the Court:

The principal question arising upon this record is, whether the trial court erred in sustaining a demurrer to the second replication.

The substance of the plea is, that the sole consideration of this note, and of another note executed by Gibson at the

Opinion of the Court.

same time, for $4000, is, that plaintiff would, when the notes were delivered to him, execute and deliver a deed conveying the described property in fee to Gibson, and that the deed was not executed and delivered. Assuming the contract to be as pleaded, plaintiff undertook to execute and deliver the deed to Gibson on the 22d day of February, 1875, and, to pay him therefor, Gibson and Snell agreed to pay him $2100 on the 22d day of February, 1876, and Gibson agreed to pay him the further sum of $4000 on the 22d of February, 1879,—in other words, the $2100 was to be paid for the execution and delivery of a deed which was to be executed and delivered one year before the payment was to be made. The undertaking to pay was dependent upon the undertaking to convey, but its performance was to be subsequent. It is true, the burden is upon the defendants to prove their plea. But if the agreement as alleged be proved, there is no obligation upon them to prove a demand for the execution and delivery of the deed, for, as has been seen, under that alleged agreement the duty was upon the plaintiff to execute and deliver the deed one year before he was entitled to demand payment of the note. This, therefore, is not like the cases cited, where the deed is executed but the title fails. Here, Gibson has nothing, and he is sought to be coerced to make a payment which he was not to make until one year after the delivery of a deed which has not been executed and delivered, and which was the sole consideration for his undertaking to make payment. The agreement, in fact, may have been different, but for the present question we must accept it as alleged. Plainly, then, it was immaterial that plaintiff had not refused to execute the deed. That did not meet the plea. If the agreement was as alleged, then it only remained to show performance, that is, that he had executed and delivered the deed,-or some excuse for nonperformance, as, a waiver, etc., neither of which was alleged. Bishop on Contracts, sec. 1434.

Syllabus.

The first instruction asked by the plaintiff, and refused by the court, embodied the idea of the second replication, and was therefore properly refused. The instructions relating to a waiver were properly refused, because no issue in that respect was presented by the pleadings.

It is objected that the court improperly admitted evidence of what was said to Snell, in the absence of the plaintiff, to induce him to sign the note. But the court excluded all of the answer of the witness, in this respect, except that he told Snell what the contract was with the plaintiff. Snell was entitled, certainly, to know that, and it could not prejudice plaintiff, therefore, that it was communicated to him. The instructions, as given, presented the law upon the issues raised by the pleadings with sufficient fullness and accuracy. The great contest in the lower courts was one of fact.

We can not say that there was no evidence tending to support the conclusion reached, and we must, therefore, in the view of the law we have expressed, affirm the judgment, which we accordingly do.

Judgment affirmed.

WILLIAM HENDERSON et al.

v.

THE PEOPLE OF THE STATE OF ILLINOIS.

Filed at Springfield May 10, 1888.

1. CRIMINAL LAW-enticing away an unmarried female for purpose of prostitution or concubinage-elements of the offense. Under section 1 of the Criminal Code, making it a crime to entice or take away an unmarried female of chaste life and conversation from her parents' house, or wherever she may be found, for the purpose of prostitution or concubinage, or to aid or assist therein, the gravamen of the offense is the purpose or intent with which the enticing or taking away is done.

Syllabus.

2. The offense, if committed at all, is complete the moment the subject of the crime is removed from the power and control of her parents, or of others having lawful charge of her, whether any illicit intercourse ever takes place or not. Subsequent acts are only important as affording reliable evidence of the original purpose or intent of the accused.

3. SAME-concubinage—whether the relation exists. Where a single woman consents to unlawfully cohabit with a man generally, as though the marriage relation existed between them, without any limit as to the duration of such illicit intercourse, and actually commences cohabiting with him in pursuance of that understanding, she becomes his concubine,-or, in other words, his "kept mistress."

4. No great length of time or long continued illicit intercourse is necessary to the establishment of the relation of concubinage. That relation, like marriage, may be contracted or assumed in a day as easily as in a year. Any remarks in Slocum v. The People, 90 Ill. 274, to the contrary, are not approved.

5. SAME "prostitution"—" concubinage"-8 -sense in which the words are used in the statute. The words "prostitution" and "concubinage" in section 1 of the Criminal Code, relating to the abduction of unmarried females for the purpose of prostitution or concubinage, were used by the legislature. in their general or popular signification.

6. SAME-determining the intent. As a general rule, the safest way of judging of one's intention about a particular matter, is to look to his acts, rather than his professions respecting it, especially when they are found to be in conflict.

7. PRACTICE-time to object-obscure expressions in an instruction. Where the trial court, on its own motion, instructs the jury, if any explanation of terms used in the instruction is desired, the party should ask for it. In the absence of any such request, a judgment will not be reversed because the court fails to define the meaning of the terms used in an instruction, and this more especially when the terms are not technical terms, but are words in common and general use.

WRIT OF ERROR to the Circuit Court of Champaign county; the Hon. C. B. SMITH, Judge, presiding.

Messrs. JOHN M. & JOHN MAYO PALMER, and Messrs. PATTON & HAMILTON, for the plaintiffs in error.

Mr. GEORGE HUNT, Attorney General, for the People.

Opinion of the Court.

Mr. JUSTICE MULKEY delivered the opinion of the Court:

At the September term, 1887, of the Champaign circuit court, the grand jury returned into open court an indictment, founded upon the first section of the Criminal Code, against William Henderson, John Henderson, Carroll Shutt and Julia Shutt. The first count charges that the defendants, on the second day of September, 1887, unlawfully and feloniously enticed and took away one Joanna Carman, then and there being an unmarried female of chaste life and conversation, from her parents' house, for the purpose of prostitution. In another count of the indictment the defendants are charged with enticing and taking away the prosecutrix for the purpose of concubinage. In other respects the latter count is like the first. Upon consideration of the evidence, in the light of the charge of the court, the jury returned a verdict of guilty against all the defendants, fixing their respective terms in the penitentiary as follows: William Henderson's at eight years, Carroll Shutt's at two, John Henderson's at one, and Julia Shutt's at one. A motion for a new trial having been made and overruled, the court pronounced sentence and judgment upon the defendants, in conformity with the verdict. The question to be considered is, whether the finding of the jury, and the judgment and sentence of the court, are warranted by the law and the evidence.

The defendants William and John Henderson are brothers. Julia Shutt is their sister, and the wife of Carroll Shutt. The prosecutrix, Joanna Carman, is the daughter of Benjamin F. and Eliza Carman, and at the time of the alleged abduction was about fifteen years old. The Shutts and Carmans lived near each other in the city of Urbana, and had been on visiting terms some three years prior to this occurrence. William Henderson, the principal in the affair, is a barber by trade, and a dissolute, drunken character, who spent most of his time in the vicinity of Urbana, and was frequently at Shutt's house,

39-124 ILL.