Opinion of the Court. The witness Frankenburg testifies in regard to the same conversation, that Carey was telling Falkingham that Lane was owing him for stock, and that it was good luck that it was not more, as he could have got more money if he had asked for it. It is first objected that the facts, as testified to by Henderson and Falkingham, would not authorize a recovery against appellant. But they were sufficient to justify the conclusion that the money due for the stock was paid over by Henderson & Lane to Ezra Carey, and received by the latter, and immediately loaned to Lane; and if Ezra Carey had no authority to receive the money for the Carey Brothers, then he would be liable to Henderson & Lane, as for money had and received to their use. The testimony of Ezra Carey was in full denial of that of Henderson and Falkingham. It was a case, then, of the unsworn statements of the defendant against his sworn statement, and the jury saw fit to give credence to the former over the latter. There was much testimony corroborative of that of Henderson and Falkingham to this extent, that Ezra Carey was claiming an indebtedness of about this amount to be due from Lane to him, and expressed much concern lest he should lose it, on account of Lane's failure in business, which took place about the 25th of December, 1866; and Henderson seems to have had no intimation that he was looked upon as liable until about the 20th of January, 1867, although almost daily meeting with the Careys, or some of them. The testimony of Lane coincided with that of the defendant, that no such payment as that claimed by Henderson was ever made or offered. But the credit of Lane is impeached by the testimony of Reuben and Jesse T. Williams, who both testify to an admission of Lane, in the summer of 1868, that Henderson paid the money for the stock bought of the Carey brothers, to him, Lane, and that he, Lane, took it to Ezra Carey and settled with him for the stock, and paid him, and then borrowed it back of him for himself. Opinion of the Court. It was further in testimony, that there was a state of illfeeling between Lane and Henderson, growing out of a claim of $50 of the former against the latter, which was in suit between them. And here a point is made, that the court erred in admitting. the testimony of Reuben and Jesse Williams to impeach that of Lane, because the latter was a co-partner and a co-plaintiff with Henderson in the suit. No authority is cited in support of the position, and we are aware of no principle to sustain it. The suit is brought in the name of Henderson & Lane, for the use of Henderson-the latter is the real party to the action. When Lane is admitted on behalf of the defendant, to give testimony adverse to the claim sued on, no reason is perceived why Henderson should not be permitted to introduce the contrary statements of the former in discredit of his testimony. There was much contradictory testimony in the case; the credibility of witnesses was largely involved; the question was one peculiarly for a jury, and they have passed upon it. We can not say that their verdict is so manifestly against the evidence that it should be disturbed. We do not perceive any error in the modification of defendant's eighth instruction, which is assigned as error. The modification consisted in striking out the following concluding words of the instruction: "then the jury shall so reconcile them, for the law will presume mistake or misunderstanding before positive perjury." There is no presumption of law on the subject. Whether a witness swears mistakenly, or knowingly falsely, is a question of fact for the jury, and not one of law. It is also assigned as error, that the damages are excessive to the extent of $3.27, arising from allowing as damages the amount paid by Henderson to satisfy the judgment against Henderson & Lane, on the 8th day of August, 1868, with interest from that time, instead of the amount of the judgment with interest from the time of its rendition, January 27, 1868. Syllabus. But the judgment recovered is only for $543.23, and so long Mr. JUSTICE SCOTT dissenting. Judgment affirmed. MOSES C. WRIGHT V. THE PEOPLE OF THE STATE OF ILLINOIS. 1. COMMISSION MERCHANT-demand by consignor-construction of act of 1869. The act of March 4, 1869, entitled an act for the protection of consignors of fruit, grain, flour, etc., to be sold on commission, which provides that any warehouseman, storage, forwarding or commission merchant who, having converted to his own use the proceeds or profits arising from the sale of any goods otherwise than as instructed by the consignor of the goods, on demand of the consignor fails to deliver over the proceeds or profits of such goods after deducting the usual per cent on sales as commissions, shall be guilty of a misdemeanor, etc., being a penal statute, must receive a strict construction, and an actual demand to be made by the consignor upon the commission merchant is an indispensable pre-requisite to a conviction under it. 2. SAME-sufficiency of demand. In such a prosecution the complaining witness testified that, when he went to the place of the accused, the latter said: "I know what you have come for, but it is impossible for me to pay you anything now." The witness stated that the accused knew well enough what he had come for, and this was all the demand he claimed Statement of the case. to have been made: Held, that, while in a civil cause where a demand was necessary, such evidence might be sufficient for a jury to find a waiver, yet, in this action, it was insufficient. The demand should be made in such a manner as to fairly apprise the merchant that he would be subject to the penalties of the statute if he failed to comply. WRIT OF ERROR to the Criminal Court of Cook county; the Hon. JOSEPH E. GARY, Judge, presiding. This was a prosecution against Moses C. Wright, on an indictment found under the act of March 4, 1869, for the protection of consignors, etc. The indictment was as follows: State of Illinois, county of Cook,-ss. Of the December term of the Criminal Court of Cook county, in said county and State, in the year of our Lord one thousand eight hundred and seventy. The grand jurors chosen, selected and sworn, in and for the county of Cook, in the State of Illinois, in the name and by the authority of the people of the State of Illinois, upon their oaths, present that Moses C. Wright, late of said county, on the 1st day of November, in the year of our Lord one thousand eight hundred and seventy, in the county and State aforesaid, being then and there a commission merchant, did unlawfully. convert to his own use the sum of $61, the property of Abijah Birdsey, the same being then and there the proceeds arising from the sale of a certain quantity of peaches before then consigned by said Birdsey to said Wright, otherwise than as instructed by said Birdsey, the consignor thereof, and that he, the said Moses C. Wright, then and there unlawfully failed to deliver over the proceeds aforesaid after deducting the usual per cent on the sale of said peaches as commission, on demand then and there made therefor by the said Abijah Birdsey, contrary to the statute and against the peace and dignity of the same people of the State of Illinois. A trial by jury at the February term, 1871, of the court below, resulted in a verdict of guilty, and the defendant was adjudged to pay a fine of $100. Opinion of the Court. The defendant brings the record to this court and asks a reversal of the judgment. Mr. SIDNEY THOMAS, for the plaintiff in error. Mr. CHARLES H. REED, States Attorney, for the people. Per CURIAM: The statute of 1869, under which the indictment in this case was found, declares that, "If any warehouseman, storage, forwarding or commission merchant, or his or their agents, clerks or employees, shall convert to their own use the proceeds or profits arising from the sale of any fruits, grain, flour, beef, pork, or any other goods, wares or merchandise, otherwise than as instructed by the consignor of said goods, and shall, on the demand of the consignor, fail to deliver over the proceeds or profits of said goods after deducting the usual per cent on sales as commissions, shall be deemed guilty of a misdemeanor," etc. This statute being penal in its nature, must receive a strict construction. An actual demand, to be made by the consignor upon the commission merchant, is an indispensable prerequisite to a conviction. The complaining witness testifies that, when he went into the place of the accused, in Chicago, the latter said: "I know what you have come for, but it is impossible for me to pay you anything now." The witness stated that the accused knew well enough what he had come for, and this was all the demand he claimed to have been made. In a civil cause, where a demand was necessary, such evidence might be sufficient for a jury to find a waiver. But the statute under consideration requires both a wrongful conversion of the proceeds and a failure to deliver them over after a demand made by the consignor, to constitute the offense. The demand should be made in such a manner as to fairly apprise the merchant that he would be subject to the penalties of the statute if he failed to comply, else he might, by the |