#### Town of Flora v. Thomas L. Lee et al.

1. Evidence—Objections must be made in court below.—An objection to the introduction of an ordinance in evidence must be made upon the trial in the court below. It cannot be raised for the first time in this court.

2. Ordinance—Presumptions when admitted in evidence.—Where an ordinance is admitted in evidence without objection, it will he presumed that it was competent testimony, and that all the essential prerequisites to make it so have been complied with.

3. Exceptions in ordinance—Dependant must bring himself within.—In an action for the violation of an ordinance prohibiting the sale of liquors, where the ordinance excepts from its provisions sales made in good faith by a druggist for medicinal purposes, the burden is upon the defendant to show that he comes within the excepted provision, if he would rely upon that as a defense.

Appeal from the Circuit Court of Clay county; the Hon. Thomas S. Casey, Judge, presiding.

Opinion filed April 2, 1880.

Messrs. Hope & Allen, for appellants;

that the burden was upon defendant to bring himself within the exception of the ordinance, cited Noecker v. The People, Ill. Sup. Ct. 1879.

Where the verdict is clearly against the evidence, it will be set aside: Miller v. Hammers, 51 Ill. 175; Adams Ex. Co v. *630Jones 53 Ill. 463; Summers v. Stark, 76 Ill. 208; Geurdon v. Corbitt, 87 Ill. 272.

Underscoring particular words in an instruction should be condemmed: Wright v. Bosseau, 73 Ill. 381.

No execution for costs could be awarded against appellant: Trustees v. Shroeder, 58 Ill. 353; Kinmundy v. Mahan, 72 Ill. 462.

Mr. Rufus Cope, for appellees;

as to former recovery, cited Schmidt v. Lahensdorf, 30 Iowa, 498; Ramsey v. Herndon, 1 McLean, 450; Smith v. Whitney, 11 Mass. 445; Street v. Beckman, 43 Iowa, 497.

In a suit before a justice for violation of an ordinance, a recovery may be had for several violations, so that the judgment shall not exceed his jurisdiction: Hensoldt v. Town of Petersburg, 63 Ill. 111.

Baker, P. J.

The charter of the town of Flora confers on it power to license, regulate and prohibit the sale of liquors; and to restrain, prohibit and suppress dram shops and tippling houses. Section 38 of chapter 10 of the ordinances of the town provides that “ any person who shall, by himself or agent, or any person who, as agent for another, shall sell or give away any vinous, spirituous or malt liquors, shall be fined $50 for each offense.”

Section 39 provides that section 38 shall not apply to sales made in good faith by a bona fide druggist, for certain purposes mentioned, and under certain specified circumstances.

In February, 1879, the town commenced its action of debt in the Olay Circuit Court against appellees for $2,500; and on the 4th of March following, filed in said suit its declaration containing fifty counts, each count charging a violation of this ordinance and proceeding for the recovery of the $50 penalty for such violation. The defendants pleaded “nil debetfi “not guilty,” and two pleas of former trial and acquittal before a justice of the peace. To these two latter pleas, the town replied, that the several violations of said ordinance in the declaration mentioned, were not, nor was any or either of them, *631or any one of the named identical violations of said ordinance, or those, or any of those, in the said pleas mentioned. The verdict and judgment were for the defendants. The pleas of former adjudication were not sustained by the evidence. The ordinance imposed a penality of $50 for each offense, and the testimony of the defendants themselves, conclusively showed that no single one of the alleged violations of the ordinance inquired of in this suit was investigated in the suit before the justice of the peace. Bo single witness who testified in the ease at bar, was a witness before the justice, nor was any sale testified to in this suit mentioned or suggested on that trial. It must be presumed the suit commenced before the justice of the peace, while this suit was pending in court, was for other and different alleged violations of the ordinance. Bor was there any ground for urging that the fifty violations of the ordinance here in issue were of a nature they could, and should have been consolidated in that suit before the justice, whose jurisdiction did not exceed $200; and that because they were not there brought forward, they were forever barred. The abstract rule of law fixed by the statute in that regard should not have been given to the jury in the form of an instruction; it was calculated to, and in all probability did, mislead them.

It is urged by appellees that the publication of the ordinance was not shown. It is sufficient to say its introduction in evidence was not objected to, and such objection cannot be raised for the first time in this court. The proof of publication would probably have been furnished had it been required. But it is said “ there was nothing to warrant the jury in saying that this ordinance was in force more than ten days before the beginning of the suit.” Before the ordinance was offered in evidence, the plaintiff had introduced all its testimony showing sales of liquors, and the declaration averred the passage and enactment of the ordinance on the 21st day of March, 1878, and that the same was duly published as required by law, setting out in detail the manner of such publication, and that the same went into full force and effect. The failure to object to the introduction of the ordinance in evidence must be construed as an *632■admission that it was competent testimony in respect to the subject matter submitted to the jury, and then being enquired of by them, and that all essential pre-requisites to make it such testimony had been complied with. The evidence introduced on the trial showed a great many sales by defendants of intoxicating liquors within the corporate limits of the town. As to quite a number of these sales the evidence of the plaintiff did ■not tend in the least to show, nor did defendants even attempt to show they were made for medicinal, chemical, mechanical, ■culinary or sacramental purposes. If defendants sold the liquors for any of the purposes which would exempt such sales from the penalties of the ordinance, it must be held it devolved on them to establish that fact. It was a matter especially within their own knowledge and within their power to prove. Moreover, any other rule would impose on plaintiffs the burden .of proving the negative.

The verdict of the jury was manifestly against the evidence, and the motion for a new trial should have prevailed. The judgment, which was against plaintiff for costs, must be reversed and the cause remanded, and a venire facies de novo awarded.

Reversed and remanded.

Casey, J., took no part in the decision of this case.