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OF
CASES AT LAW AND Df CHANCERY
ARGUED AND DETERMINED IN THE
SUPREME COURT OF ILLINOIS.
By NORMAN L. FREEMAN,
REPORTER.
VOLUME LXX.
Containing additional Cases submitted at the
September Term, 1873.
PRINTED FOR THE REPORTER.
SPRINGFIELD:
1876.
Entered according to Act of Congress, in the year 1876, by
NORMAN L. FREEMAN,
In the office of the Librarian of Congress, at Washington.
JOURNAL COMPANY,
STEREOTYPERS, PRINTERS AND BINDERS,
Springfield, El.
JUSTICES OF THE SUPREME COURT
DURING THE TIME OF THESE REPORTS.
SIDNEY BREESE, Chief Justice.
JOHN M. SCOTT, PINKNEY H. WALKER,
WILLIAM K. MCALLISTER, BENJAMIN E. SHELDON,
JOHN SOHOLFIELD, ALEEED M. CEAIC,
Justices.
ATTORNEY GENERAL,
JAMES K. EDSALL, Esq.
REPORTER,
NORMAN L. FREEMAN.
CLERK IN THE SOUTHERN GRAND DIVISION,
R. A. D. WILBANKS, Mt. Vernon.
CLERK IN THE CENTRAL GRAND DIVISION,
E. C. HAMBURGHER, Springfield.
CLERK IN THE NORTHERN GRAND DIVISION,
CAIRO D. TRIMBLE, Ottawa.
Digitized by the Internet Archive
in 2012 with funding from
State of Indiana through the Indiana State Library
http://archive.org/details/reportsofcasesatv70illi
TABLE OF OASES
REPORTED IN THIS VOLUME.
-
PAGE.
A
Blanchard v. Williamson
647
PAGE.
Bliss v. Harris etal
343
Adams ads. Ozburn et al
291
Boggs v. Willard et al. ........
315
Albee ads. Jones
34
Bragg et al. ads. Barm
283
Albright et al. ads. Hawkins. . .
87
Brethauer ads. Happel et al
166
Alexander v. Hoffman et al
114
Brink v. Steadman et al
241
Andrews v. The Board of Su-
Buckingham et al. v. Fisher. . .
121
pervisors of Knox County. . .
65
Buckner et al. ads. Kingsbury,
Austrian ads. Greenbaum
591
by his Guardian
514
Burges et al. ads. Munn et al... .
604
B
Burns ads. Utley.
162
Burnham v. Roberts
19
Badger v. The Batavia Paper
Burt v. French
254
Manufacturing Co. et al
302
Bush v. Hanson
480
Baldwin et al. v. Sager
503
Barm v. Bragg et al
283
c
Barnett v. Wolf
76
Barrett et al. v. Spaids ■
408
Campbell ads. Patton et al
72
Batavia Paper Manufacturing
Carpenter v. Carpenter
457
Co. et al. ads. Badger
302
ads. Larmon
549
Beardsley, The People ex rel. v.
Carr ads. Rising et ux
596
Wallace
680
Carter ads. Fleming
286
Bell, Admr. ads. The Chicago,
Cassell ads. Hays.. ,
669
Rock Island and Pacific R.
Champion v. Ulmer
322
R. Co
102
Chase et al. v. Heanev
268
Benedict ads. Winslow,
120
Chicago, Burlington and Quin
Bennett ads. Turner
263-
cy R. R. Co. v. Rosenfeld
272
Binninger ads. The Northern
Chicago, Milwaukee and St
Line Packet Co
571
Paul Ry. Co. v. Eberhart
347
Birkbeck ads. The Galena and
ads. Page et al. ,
324
Southern Wisconsin R. R. Co.
208
Chicago and Northwestern Ry
Blake v. Blake
618
Co. v. Clark, Admx
276
TABLE OF CASES REPORTED.
PAGE.
Chicago and Northwestern Ry.
Co. ads. Disbrow 246
v. The Northern Line
Packet Co 217
v. Ryan 211
Chicago and Pacific R. R. Co.
v. Francis , 238
Chicago, Rock Island and Pa-
cific R. R. Co. v. Bell, Admr. 102
et al. v. Kennedy et al.. . 350
Clark, Admx. ads. The Chicago
and Northwestern Ry. Co 276
et al. v. Pope et al 128
et al. ads. Rawson 656
Cooke v. Murphy et al 96
Cornell ads. Fisher 216
Crandall ads. Robbins 300
Crowds. East 91
D
Daly ads. Mahon et al 653
Davenport v. Karnes et al 465
Dearlove et al. v. Herrington. . . 251
Dieter v. Smith et al 168
Disbrow v. The Chicago and
Northwestern Ry. Co 246
Doig et al. v. The Prairie State
Loan and Trust Co 52
Donlin et al. ads. Kelly et al... . 378
Douglas et al. ads. Walker et al. 445
Duquid et al. ads. Dwyer 307
Dwyer v. Duquid et al 307
E
East v. Crow 91
Eberhart v. The Chicago, Mil-
waukee and St. Paul Ry. Co. 347
Edwards ads. Stenger 631
Ely et al. ads. Harper et al 581
Eureka College, Trustees of,
ads. Terry et al 236
F
Farmers' Loan and Trust Co.
et al. ads. The Racine aud Mis-
sissippi R. R. Co 249
PAGE.
Farwell v. Warren 28
Field ads. Shipherd 438
Fisher ads. Buckingham et al. . 121
v. Cornell 216
Fleming v. Carter ; 286
Follansbee et al. v. Parker 11
Footh ads. Kane 587
Ford ads. Palmer. , - • 369
Francis ads. The Chicago and
Pacific R. R. Co 238
Freese v. Tripp 496
Freibroth v. Mann 523
French ads. Burt 254
G
Galena and Southern Wisconsin
R. R. Co. v. Birkbeck 208
Garrity v. The People. 83
Gerrish v. Maher 470
Glann et al. ads. The People ex
rel. The Chicago and Iowa
R. R. Co 232
Gooding v. Morgan 275
Goodwin et al. ads. Miller et al. 659
Greenbaum v. Austrian 591
H
Hadclen et al. v. Knickerbocker
et al 677
Hager ads. Zepp 223
Hall v. The Rose Hill and
Evanston Road Co 673
Happel et al. v. Brethauer 166
Harper et al. v. Ely et al 581
Harris et al. ads. Bliss 343
Hastings ads. Kellogg 598
Hanson ads. Bush 480
Haverty et al. ads. Murray et al. 318
Hawkins v. Albright et al 87
Hayes ads. Strohm 41
Haysfl. Cassell 669
Heaney ads. Chase et al 268
Hennies et al. v. The People. . . 100
Herrington ads. Dearlove et al.. 251
Hoffman et al. ads. Alexander.. 114
TABLE OF CASES REPORTED.
VII
PAGE.
Hollida & Ball ■». Hunt 109
Hoyt v. Shipherd et al 309
v. Tuxbury et al 331
Huftalin v. Misner 55, 205
Hunt ads. Hollida &*Ball 109
Hyde Park, Village of, ads. The
Northwestern Fertilizing Co. 634
J
Jones??. Albee 34
K
Kane v. Footh 587
Karnes et al. ads. Davenport. . . 465
Kastens et al. ads. Newhall 156
Kellogg v. Hastings 598
Kelly et al. v. Donlin et al 378
Kendall ads. Ragor et al 95
Kennedy et al. ads. The Chica-
go, Rock Island and Pacific
R. R. Co. et ah 350
v. Merriarn et al 228
Kimball et al. v. Tooke 553
Kingsbury, by his Guardian v.
Buckner et al 514
Kitzinger v. Sanborn et al 146
Klock et al. v. Walter 416
Klokke, The People ex rel. v.
Wright 388
Knickerbocker et al. ads. Had-
den et al 677
Knox County, Board of Super-
visors of, ads. Andrews 65
Korf«. Lull 420
L
Lake View, Town of, v. The
Rose Hill Cemetery Co 191
Larmon v. Carpenter 549
Larrabee, Admr. ads. Ogden . . . 510
LeMoyne et al v. Quimby et al. 399
Lewis, The People ex rel. v.
Waite 25
Lincoln v. Schwartz et al 134
Linnemeyer v. Miller et al 244
Lull ads. Korf 420
M
PAGE.
Maher ads. Gerrish 470
Mahon et al. v. Daly 653
Mann ads. Freibroth 523
McWilliams^ al.v. Morgan.. 62, 551
Merriarn et al. ads. Kennedy. . . 228
Miller et al. ads. Linnemeyer. . . 244
v. Goodwin et al . . 659
Mitchell ads. Nichols. 258
v. The People 138
Misner ads. Huftalin 55, 205
Morgan ads. Gooding 275
ads. McWilliams et al.62, 551
Moss ads. Snowell et al 313
Moulding et al. v. Prussing et al. 151
Munn et al. v. Burges et al 604
Murphy et al. ads. Cooke 96
Murray et al. v. Haverty et al. . . 318
N
Newhall v. Kastens et al 156
Nicoll v. Todd et al 295
Nichols v. Mitchell 258
Nixon v. Noble 32
Noble ads. Nixon 32
Northern Line Packet Co. v.
Binninger 571
ads. The Chicago and
Northwestern R. R. Co 217
Northwestern Fertilizing Co. v.
The Village of Hyde Park. . . 634
o
Ogden v. Larrabee, Admr 510
O'Riley?). Suver 85
Ozburn et al. v. Adams 291
Page et al. v. The Chicago, Mil-
waukee and St. Paul Ry. Co . 324
Palmer v. Ford 369
VIII
TABLE OF CASES REPORTED.
PAGE.
Palmer v. Richardson 544
et al. ads. Reynolds 288
Parker ads. Follansbee et al — 11
Patton et al. v. Campbell 72
People ads. G-arrity 83
ads. Hennies et al 100
ads. Mitchell 138
ads. Perteet 171
ads. Wray et al 664
ex rel. Beardsley v. Wal-
lace 680
ex rel. Chicago and Iowa
R. R. Co. v. Glann et al 232
ex rel. Klokke v. Wright. 388
ex rel. Lewis v. Waite ... 25
Perteet v. The People 171
Pope et al. ads. Clark et al 128
Port v. Port et al 484
Poyer et al. ads. Weaver 567
Prairie State Loan and Trust
Co. <&. Doig et al 52
Prussing et al. ads. Moulding
et al 151
Q
Quimby et al. ads. LeMoyne
et al 399
R
Racine and Mississippi R. R.
Co. v. The Farmers' Loan and
Trust Co. et al 249
Ragor et al. v. Kendall 95
Rawson v. Clark et al 656
Reed ads. Vocht 491
v. West et al 479
Reynolds v. Palmer et al 288
Richardson ads. Palmer 544
'Rising et ux. v. Carr 596
Robbins v. Crandall 300
Roberts ads. Burnham 19
Roche ads. Yolk et al 297
Rose Hill Cemetery Co. ads.
The Town of Lake View 191
Rose Hill and Evanston Road
Co. ads. Hall 673
PAGE.
Rosenfeld ads. The Chicago,
Burlington and Quincy R. R.
Co 272
Ryan ads. The Chicago and
Northwestern Ry. Co 211
s
Sager ads. Baldwin et al 503
Sanborn et al. ads. Kitzinger.. . 146
Schwartz et al. ads. Lincoln 134
Shipherd v. Field 438
et al. ads. Hoyt 909
Simons v. Waldron et al 281
Smith et al. ads. Dieter 168
— et al. v. Wunderlich et al. 426
Snowell et al. v. Moss 313
South Park Commissioners ads.
Wilson 46
Spaids ads. Barrett et al 408
Steadman et al. ads. Brink 241
Stenger v. Edwards 631
Streamer et al. ads. Sturman. . . 188
Strohm v. Hayes 41
Sturman -y. Streamer et al 188
Suver ads. O'Riley 85
T
Terry et al. v. The Trustees of
Eureka College 236
Todd et al. ads. Nicoll 295
Tooke ads. Kimball et al 553
Tripp ads. Freese ■ 496
Tucker et al. ads. Walker et al. 527
Turner v. Bennett 263
Tuxbury et al. ads. Hoyt 331
u
Ulmer ads. Champion 322
Utley v. Burns 162
V
Vocht v. Reed 491
Volk et al. v. Roche 297
TABLE OF CASES REPORTED.
IX
w
PAGE.
Waite ads. The People ex rel.
Lewis 25
Waldron et al. ads. Simons 281
Walker et al. v. Douglas et al... 445
et al. v. Tucker et al 527
Wallace ads. The People ex rel.
Beardsley 680
Walter ads. Klock et al 416
Walton v. Walton et al 142
Warren ads. Farwell 28
Weaver v. Poyer et al 567
West et al. ads. Reed 479
PAGE.
Willard et al. ads. Boggs 315
Williamson ads. Blanchard 647
Wilson v. The South Park Com-
missioners , 46
Winslow v. Benedict 120
Wolf ads. Barnett 76
Wray et al. v. The People 664
Wright ads. The People ex rel.
Klokke 388
Wunderlich et al. ads. Smith
etal 426
z
Zepp v. Hager 223
CASES
IN THE
SUPREME COURT OF ILLINOIS.
NORTHERN GRAND DIVISION
SEPTEMBER TEKM, 1873.
C. FoLLANSBEE et tth
v.
John" D. Paekee.
1. Account rendered — acceptance by acquiescence. Where an account
of a banker is rendered, showing a sale of a party's stocks, which the
latter receives without objection, in ignorance of the facts, his acquiescing
in the same, under such circumstances, will not preclude him from after,
wards disputing the account.
2. Sale op stocks — where broker makes two sales at different prices,
whether customer is entitled to price received on first sale. Where a customer
of a bank in Chicago had railroad stocks which were held by the bank,
in its name, in other banks, in the city of New York, and, during the
great Chicago fire, directed his banker to telegraph immediately and have
them sold, and directed the dispatch to be sent from a station outside of
the city, under the belief that none could be sent from the city, and, after
this, the bank sent a dispatch from the city, under which more stocks
were sold than those it held for such customer, and, on the next day, sent
another dispatch from the station outside the city, which did not get
through for some time, and under which other railroad stocks were sold
at a much lower price than the first, it was held, that the customer was
entitled to recover of his banker, for his stocks sold, the price received at
the first sale, as he was the first to give a direction to sell.
12 Follansbee et al. v. Parker. [Sept. T.
Opinion of the Court.
Appeal, from the Circuit Court of Cook county; the Hon.
John G. Rogers, Judge, presiding.
Mr. Leonard Swett, for the appellants.
Messrs. Goudy & Chandler, for the appellee.
Mr. Chief Justice Breese delivered the opinion of the
Court :
This was an action of assumpsit, brought to the Cook cir-
cuit court, by John D. Parker, against C. Pollansbee & Son,
to recover the proceeds of certain stocks in the Chicago, Rock
Island and Pacific Railroad Company, owned by the plaintiff,
and sold by the defendants, bankers in Chicago.
The cause was tried by the court, without the intervention
of a jury, who found for the plaintiff ten thousand dollars in
damages, for which judgment was rendered.
To reverse this judgment, the defendants appeal, and insist,
here, that the finding and judgment were against the law and
the evidence.
The questions arising on the evidence are, have appellants
incurred any liability to appellee, and of what nature and to
what extent; and these to be determined by the evidence.
The transaction out of which the controversy arises, was,
selling certain stocks owned by appellee, but standing in
appellants' names on the books of their brokers in the city
of New York, and which they alone could control.
The manner of doing this kind of business was this: If
an application was made to appellants to purchase a certain
number of shares of a particular stock, they telegraphed to
their brokers in "New York to make the purchase. When
advised of the purchase, appellants gave notice to the party
making the application, who was required to put up the mar-
gin agreed upon, or to pay the price. These shares were
entered on appellants' books in the name of their customer.
When the customer desired to sell, he gave an order to that
effect to appellants, and they would telegraph to their brokers
1873.] Follansbee et at. v. Parker. 13
Opinion of the Court.
in New York to make the sale, who reported results to de-
fendants, and they thereupon rendered their account to their
customer. All such purchases stood on the brokers' books,
in New York, in the name of appellants, their customers
being unknown in the transaction.
At the time of the fire of October ninth, 1871, appellee
was the owner, on the books of appellants, of ten hundred
and fifty shares of stock, of the par value of one hundred
dollars, in the Chicago, Rock Island and Pacific Railroad
Company. About nine o'clock of the morning of the ninth,
the fire still raging, and consternation brooding over the city,
Merrill C. Follansbee, one of appellants, and his brother
Frank, were on the steps of the dwelling house of appellee,
on Wabash avenue, and on inquiry by Merrill Follansbee
what appellee would have done with his stocks — it being
understood, when the extent of the calamity should be fully
known, a panic would ensue, causing a great depreciation in
stocks — he was told to sell out at once — to sell out that day
— appellee protesting he would not be sold out in a panic.
When some doubt was expressed about their ability to get a
dispatch off, under the circumstances, appellee said, go outside
of the influence of the fire, suggesting Englewood or Calu-
met; or, as Thomas Parker testified, go anywhere, the direc-
tion being distinctly stated and understood that the dispatch
must go that day, and the sale be made on that day.
On leaving appellee, Follansbee met Mr. Williams, another
customer, near Burlington hall, and who then held one thou-
sand shares of this stock, and he directed Follansbee, not, as
is stated by appellants, to go to the Burlington crossing and
send a dispatch, but he directed them to sell, and requested
that Frank, or some one, should be sent "to the nearest tele-
graph station, near Chicago, to get a dispatch through as early
as possible."
Merrill Follansbee proceeded immediately to the telegraph
station at the Burlington crossing, and succeeded in getting
a dispatch started on the wires. That dispatch was as fol-
14 Follansbee et ill v. Parker. [Sept. T.
Opinion of the Court.
lows: "Sell 3000 shares of Rock Island; 500 Erie; also,
select and sell of our stocks 1000 shares." This dispatch was
sent to Scott, Strong & Co., appellants' brokers in New York,
who are proved by appellants' witness to have had at that
time a sufficient amount of these stocks to answer appellee's
claim and Williams' also, with a surplus over.
On this dispatch, received by these brokers on the 9th of
October, they made the sale ordered, at an average of one
hundred and seven dollars per share for Rock Island, and
appellants settled one thousand shares with Mr. Williams, on
that basis.
About two o'clock in the afternoon of this day, Frank
Follansbee reached EngleAVOod, a station about six miles
south-west of the Burlington crossing, and there wrote out
on one of the blanks of the telegraph company this dispatch:
"Sell for our account half of our stock." This was directed
to Scott, Strong «& Co., and to Weston & Debillior, and to A.
M. Kidder & Co., who were also brokers of appellants.
It is not precisely certain when this dispatch reached New
York, but the probability is, it was not received there until
the eleventh, before the arrival of which, sales of Rock Island
stock had been made at about one hundred and one-fourth, and
for these proceeds, on this basis, appellants, some weeks there-
after, presented their account to appellee, showing a balance
due them of four thousand four hundred and seventy-one
dollars ninety-five cents.
It is claimed by appellants that no objection was made by
appellee to this account when presented, and to the one sub-
sequently presented, augmented by an item of indebtedness
of Thomas Parker, the father of appellee, growing out of a
similar transaction, and credited by a note of Burdick &
Mead to appellee, for eight thousand eight hundred seventy-
one dollars ninety cents, which had been deposited by appellee
with appellants long anterior. This account also credits ap-
pellee with these stocks at one hundred and one and one-
1873.] Follansbee et al. v. Parker. 15
Opinion of the Court.
fourth, and shows a cash balance due appellants of nine hun-
dred forty-six dollars ten cents.
To these accounts so rendered, appellants insist appellee
made no objection until near three months after they were
rendered. On these questions there is much conflict of tes-
timony, and we have not the means, such as the circuit court
had, of determining where the real truth lies, and must
take the finding of the court as correct, barely suggesting
that it does not look reasonable that appellee should have
accepted the statement of the account as correct and binding
on him, and be in ignorance of the real facts. Whatever he
may have done savoring of acquiescence, whilst ignorant of
the facts, can not, and should not, prejudice him.
Appellee, it appears, went to New York, to the brokers
Scott, Strong & Co., to ascertain the facts. Having ascer-
tained them, and not being satisfied he had been fairly dealt
with by appellants, this suit was brought.
It is claimed by appellants that, inasmuch as they did send
a dispatch from Englewood, and this by the special order and
direct-ion of appellee, they should be answerable to him only
for the results of that dispatch. They contend they have a
right to claim that dispatch as appellee's. The contents of
the dispatch should dispel such an idea. It was, "Sell for
our account half of our stocks." This was a general order.
Had it been an order to sell ten hundred and fifty shares of
Eock Island, being the amount and kind of stocks then held
by them for appellee, there would be some plausibility in the
claim. There seems to us no good reason why this dispatch
should be claimed as appellee's. A careful reading of the
testimony, considered in reference to the circumstances sur-
rounding the parties, satisfies us that it was not the under-
standing of any of the parties that appellants should be con-
fined to any telegraph station. It was the fixed and clearly
expressed determination of appellee that his stocks should be
sold on the ninth, and not on any other day. Englewood and
Calumet were suggested, but the direction was, in effect, go
16 Follansbee et al. v. Parker. [Sept. T.
Opinion of the Court.
anywhere out of the influence of the fire; and this was
Thomas Parker's testimony.
The object and desire of appellee was, to get a dispatch off
on the ninth, before the panic should produce its expected
effects; and Mr. Follansbee himself testifies he would not
have sent to Englewood had he known he could send a dis-
patch from the Burlington crossing.
Appellants did get a dispatch from this u crossing," on the
morning of the ninth, directing their brokers to sell three
thousand shares of Kock Island on their account. Why ap-
pellants should appropriate this telegram to the benefit of a
customer not so vigilant as appellee, we are at a loss to under-
stand. It was as much the dispatch of appellee as of Mr.
Williams, and could be more justly claimed as appellee's, as
he was prior in time. The pretense now set up by appellants,
that the benefit of this dispatch was extended to other cus-
tomers besides Williams, is as unjust as it is frivolous, for no
other customers but appellee and Williams were making any
efforts to effect a sale until the evening of the ninth. Appel-
lee was first in time, and is entitled to the fruits of his vigi-
lance.
We are unable to put any other construction upon this
transaction than this. It was of vast importance to appellee
that his stocks should be sold before a panic. He declared
more than once he would not be sold out in a panic, and as
Pock Island stock, more than sufficient to cover the amount
owned by appellee, after satisfying Williams, was sold on that
day, the price received therefor on that day should be the
basis on which appellee's claim should be adjusted.
It was the evident understanding of the parties that appel-
lants should avail of the readiest facilities to get a dispatch
on the wires. These were found at the "crossing," and there
was no use in sending to Englewood. Appellants' witness
says, had he known a dispatch could have been sent from the
" crossing," he would not have sent to Englewood.
1873.] Follansbee et al. v. Parker. 17
Mr. Justice Scott and Mr. Justice Sheldon, dissenting.
But in sending to Englewood, no sufficient diligence was
used at a time when minutes were of great value. The dis-
tance from the Burlington " crossing " is about six miles, a
distance which could be easily passed over by an ordinary
roadster in one hour. The dispatch was sent from the crossing
about nine o'clock in the morning of the ninth. The mes-
senger did not reach Englewood until about two o'clock in
the afternoon. This can hardly be called such diligence as
appellants should have exercised.
The mistake of appellants is, in appropriating the telegram
sent from the " crossing " to Williams and his other cus-
tomers, to the exclusion of appellee, the most vigilant of all.
There is no point made on the amount of the money, it
being conceded if appellee is entitled to recover on the basis
of one hundred and seven, the finding is right.
We fail to see wherein the finding is against the law or the
evidence. The judgment of the circuit court must be affirmed.
Judgment affirmed.
Mr. Justice Scott and Mr. Justice Sheldon, dissenting:
The persons present at the time the direction to sell the
stock was given, were John D. Parker, the appellee, Thomas
Parker, his father, James Mills, and Merrill Follansbee, who
testified as follows upon that point :
John D. Parker — " It was then suggested, Englewood or
Calumet — to send the dispatch from one of these points, and
I told him (Follansbee) to go to one of these places and send
the dispatch, and he said he would."
Thomas Parker — " I told him (Follansbee) if he could get
a dispatch through from Englewood or Calumet, or anywhere,
to send it, and have our stock sold."
James Mills — " Mr. Follansbee then said it was somewhat
difficult to get off a dispatch; and it was agreed between
them that young Follansbee should go to Englewood or Calu-
met and send a dispatch, and have the stock sold that day.
That was about the substance of the conversation."
2— 70th III.
18 Follansbee et al. v. Parker. [Sept. T.
Mr. Justice Scott and Mr. Justice Sheldon, dissenting.
Merrill Follansbee — "In execution of Mr. Parker's order, I
sent my brother to Englewood, and instructed him to tele-
graph for the sale of half the stocks we held, to all the houses
with which we had accounts. The Englewood dispatch was
sent to cover Mr. Parker's order and a portion of what other
stock we had there."
All the stock was held for their customers, and none of it
for the Follansbees themselves.
We think the clear preponderance of the testimony is, that
Follansbee was directed by Parker to telegraph from Engle-
wood or Calumet, and that, in obedience to orders, the former
was bound to telegraph for Parker from one of those places;
that the dispatch from Englewood should be considered as
Parker's dispatch, and that he is entitled only to the result
produced by that dispatch. The appellants, as agents of
appellee, were not at liberty to disregard their instructions.
The directions were explicit to send the dispatch from Calu-
met or Englewood for the sale of their stock. The reason
assigned was, that they did not want to be sold out in a panic,
which it was feared might ensue before a dispatch could be
sent from a city office. Having obeyed the instructions given,
appellants ought not to be held liable for the failure of the
dispatch to go through. Had they neglected to send a dis-
patch, as agreed upon between the parties, then, in case the
telegram from the "crossing" had failed to go through in
proper time, they would undoubtedly have been liable for all
damages, if any, that appellee might have sustained by reason
of not telegraphing from Englewood or Calumet.
1873.] Burxham v. Roberts. 19
Syllabus.
Nelson Burniiam
John D. Koberts.
1. Attorney and client — privileged communication. A bill in chan-
cery, sworn to by a party, but never filed, and which is prepared by his
attorney on the client's statement of the facts, is to be regarded as a
privileged communication in the hands of the attorne}^, and is not admis-
sible in evidence against his client
2. Same — evidence of the relation. "Where an attorney at law prepares
a bill in chancery in a party's name as complainant, and the attorney
signs the party's name to it, and then the name of his firm to the bill, this
affords unmistakable evidence of the relation of client and attorney,
and a mere denial of the relation by the latter is but ignoring the legal
effect of the acts done.
3. Evidence — weight of bill in chancery as proof of facts stated. Where
it appeared that, when a bill in chancery was partly drawn, a jurat was
prepared and sworn to by the complainant, and the attorney afterwards
completed the same, but it was never filed, and the complainant testified
that he did not know the contents, it was held, that, if the bill was admis-
sible in evidence against the complainant, it was of but little weight.
4. Pleading and evidence — common counts. The averment in a com-
mon count of the sale and delivery of property, is substantial, and must
be proved, to warrant a recovery.
5. Assignment — suit on claim against estate. If a recovery of the price
of a claim upon an estate, which has been sold, is sought, under the com-
mon counts, the claim must have passed to the purchaser by an assign-
ment or some other act tantamount to a delivery.
6. Pleading — when the plaintiff must declare specially. If a vendor
elects to sue for and recover damages for a breach of a contract to pur-
chase, he must declare specially.
7. Vendor and purchaser — vendor must perform before he can sue
vendee. Where a vendor sues for damages for the breach of a contract of
sale, it must appear that he has been read}r and willing, and has offered
to perform on his part, or that the vendee has done some act which dis-
penses with a performance.
8. Same — when offer to perform not necessary. A defendant may dispense
with an offer to perform by the plaintiff', by refusing to go on with the
contract, or lie may, in other modes, dispense with such an offer.
20 Buknham v. Roberts. [Sept. T.
Opinion of the Court.
9. Measure op damages. Where a seller sues for the breach of a
contract to purchase, and retains the title to the property, the measure of
damages is the difference between the value of the property at the time
fixed for delivery, and the contract price.
Appeal from the Circuit Court of Peoria county; the
Hon. S. D. Puterbaugh, Judge, presiding.
This was an action of assumpsit, brought by John D. Rob-
erts against Nelson Burnham, to recover the price of certain
claims upon an estate alleged to have been sold. The opinion
of the court contains a substantial statement of the leading
facts.
Messrs. McCulloch & Stevens, for the appellant.
Messrs. Ingersoll, Puterbaugh Bros., & McCune, for
the appellee.
Mr. Justice Walker delivered the opinion of the Court :
Appellee alleges that he sold to appellant claims on the
estate of one John W. Proctor, for which he was to pay him
$825 ; that appellee held a portion of the claims in his own
right, and, by agreement, purchased other claims. He insists
that it was agreed that appellee should have the claims pro-
bated against the estate, and that appellant was then to pay
him for them, and that he did have them probated, but it
appears they were in his own name, or in the names of the
holders for his use.
Appellant, on the other hand, denies that he ever made any
such purchase. He admits that there were negotiations be-
tween them in reference to some of the claims that were held
by appellee, and as to their price, but insists that he was to
purchase a piece of land at the administrator's sale, which he
had previously sold to Proctor, and that the money for the
claims was to be paid by the administrator to appellee, and
that he did re-purchase the land at the administrator's sale,
gave $900 for it, and paid the money to the administrator, and
1873.] BlJRNHAM V. KOBERTS. 21
Opinion of the Court.
expected him to pay it over to appellee. It is not disputed,
that he made the purchase of the land for that sum, and that
he paid it to the administrator.
Each party swears to the view of the case he presents, but
appellee, although he frequently, in his testimony, speaks of
appellant agreeing to pay for the claims, yet he does state
positively that appellant agreed to pay him. He says that,
"Burnham was to pay me, I suppose; I do not think he would
not pay me particularly, or I do not think he mentioned any
one." This does not look like he understood that there was
a promise to pay him, or that the money was not to be paid
to the administrator, as appellant swears it was to be. If
there had been the sale claimed, it seems that the vendor
would have had a promise to pay, and in such terms that
would leave no doubt on the subject.
The administrator testified to the conversation between the
parties, and, at first, says appellant was to pay appellee about
$800 for the claims. On cross-examination, he says he thinks
that there was no arrangement made that appellant should
pay $800 for these claims, and then the land to be sold at
administrator's sale, and bid off at a nominal sum, and appel-
lee get the benefit of the sale ; that there was no agreement
as to what it should be bid off at, when sold. When the
whole of the evidence is considered, it is by no means satis-
factory. We can not comprehend why appellant would de-
sire to purchase these claims, when the estate owed five or
six thousand dollars more than could be paid, unless it was
with the expectation that he could use them at their face in
paying for the land. He seems to have been disposed to act
fairly, and even liberally, with the estate. He could have
filed a bill for a specific performance of the contract, and had
the land sold, to pay him the purchase money, when, if, as he
testifies, the land had depreciated, it is not probable that it
would have sold for more than was due him on the purchase,
and if so, the estate not being able to pay the balance, it
would, in all probability, have lost all that had been paid.
22 Burnham v. Eoberts. [Sept. T.
Opinion of the Court.
Again, it seems that the administrator took steps to get appel-
lant to visit Yates City, the residence of appellee. He seems,
according to his own account of the matter, to have informed
appellant that appellee had the claims, and to have taken
appellant and introduced him to appellee. Now, why all of
this activity on his part, unless he intended to induce appel-
lant to purchase the claims, that they might be used in pay-
ing for the land ?
As evidence of the understanding of appellant, he purchased
the land, not for a nominal sum, and he then paid the money
to the administrator. He surely could not, under the cir-
cumstances, have considered the purchase a speculation, when
it was evident that he could have received back, of the money
paid, but a comparatively small percentage.
It is urged that the bill prepared and sworn to by appellant
against Bird, but never filed, was improperly admitted in
evidence, because it is claimed that the relation of attorney
and client existed between appellant and the attorney who
drew it. We are inclined to hold that the statements made
to the attorney, upon which the bill in chancery was based,
were privileged. It was drawn in the name of appellant,
and his name was signed to it by the attorney, and he signed
the name of his firm to the bill. This unmistakably estab-
lishes the relation. These acts were deliberately done, and
are not explained. A mere denial is but ignoring the legal
effect of the acts. If that relation did not exist, then whose
attorney was he? It will not be said that he was the attor-
ney of appellee, and that this was but an unprofessional trick,
to entrap appellant into a sworn statement of facts, that they
might be used against him in this suit. If he was not appel-
lant's attorney, the facts would seem to strongly point to the
other theory. We are clearly of the opinion that the facts
stated in the bill must be considered as privileged communi-
cations.
But if the relation of attorney could possibly be said not
to have existed between appellant and the solicitor, still the
1873.] Buesham v. Roberts. 23
Opinion of the Court.
bill, under the circumstances it was drawn, is worth but little
as evidence. Appellant says the bill was not all written, and
it did not contain all the facts, when he signed and swore to
the jurat that was attached to the bill. The solicitor says it
only lacked the formal part when appellant swore to the jurat,
and that, after he left, the formal portion and prayer were
added. But his memory seems to be imperfect as to this trans-
action, and, in confirmation of his belief, he says that he was
not in the habit of having such jurats sworn to, unless the
facts were written out and read to the complainant. Accord-
ing, however, to the evidence on this point, the bill, as it now
appears, was not prepared when the jurat was sworn to by
appellant. It, then, leaves the matter in doubt as to whether
appellant ever heard even the facts contained in this bill, read,
and assented to their truth. He swears he did not, and we
know the bill was not finished when he made the oath and
left. It was, no doubt, reckless in him to make such an oath
before the bill was completed and carefully read to or by him,
and it is doubtless exceedingly loose practice, and should be
discountenanced. Such a practice endangers the liberty of
the weak, the reckless and the confiding, however truthful
they may intend to be.
The attorney intrusted with the completion of the bill may,
from accident or design, in such a' case, involve tfye client in
great trouble, and if the affidavit is acted on as true, great
injustice may be perpetrated on others.
We, however, now come to the principal and turning point
in the case, and that is, can this action be maintained, if the
evidence produced by appellee be conceded to be true? It
nowhere appears that he ever assigned, gave an order for, or
otherwise gave appellant control of these claims, or offered
to do so at any time before the suit was brought. To have com-
pleted the sale, some act should have been done giving appel-
lant the power to use the name of appellee to enforce their
collection, and to use the process of the law, if desired, for
that purpose. The claims appear of record to belong to
24 Buenham v. Kobekts. [Sept. T.
Opinion of the Court.
appellee, and he has not given or tendered to appellant an
order on the administrator for the money that may be ordered
to be paid by him on these claims, nor has he, of record or
otherwise, assigned or offered to assign them to appellant, and
empowered him to collect them from the administrator.
Appellee has the full legal right to release, assign, discharge,
or otherwise dispose of these claims, whatever might be the
equitable rights of appellant, if he has acquired any, as is
claimed by appellee.
If it is sought to recover the value or the amount agreed
to be paid, under the common counts, the property must have
passed to the purchaser. Those counts, in their form, must
state that the property was sold and delivered, and the aver-
ment is substantial, and must be proved, to warrant a recov-
ery. This is elementary, but in this case there was no deliv-
ery, or what would be the only delivery that could be made,
an assignment. It should have been executed, or such an
act done as would have transferred appellee's title uncondi-
tionally to appellant, and for the want of such act, a recovery
can not be sustained under the common counts.
This is not a case where an agreement has been fully per-
formed, and nothing further remains to be done but the pay-
ment of the money by appellant. To complete the sale, if
one was made, it remains for appellee to transfer his claims
to appellant, so as to give him control over them. He has
not performed his part of the contract. As well might the
seller of personal property, who had sold it to be paid for on
delivery, retain the property, and sue under the common
counts for goods sold and delivered. It is true, he could not
make a manual delivery of these claims, but he could have
given an instrument vesting appellant with the control of
them, which would have answered as, and been -tantamount
to, delivery.
If appellee elects to sue for and recover damages for a
breach of the contract, then the count must be special; and,
in such an action, it must appear that appellee had been ready
1873.] The People ex rel v. Waite. 25
Syllabus.
and willing, and must have offered to perform, or appellant
must have done some act which dispensed with a perform-
ance. A defendant may dispense with an offer to perform by
the plaintiff, by refusing to go on with the contract, or he
may, in other modes, dispense with such an offer.
Where the suit is for the breach of the contract, the seller
retains the title to the property. If he recovers, it is for the
damages he has sustained by the breach of the contract, and
they are usually measured by the difference between the value
of the property at the time of delivery, and the price agreed
to be paid under the contract.
From what has been said, it will be seen that this recovery
can not be sustained under the common counts, and it is not
claimed that it is under the special count, nor could it be, as
that count contains an averment that appellee had performed
the contract on his part, when the evidence shows he had not
even offered to perform.
The judgment is reversed and the cause remanded.
Judgment reversed.
The People ex rel. John E. Lewis
V.
Geoege W. Waite.
1. Quo warranto— leave to file, a matter of discretion. The granting
of leave to file an information in the nature of a quo warranto is within
the sound discretion of the court. Leave is not given as a matter of course,
but a court ought not arbitrarily to refuse leave, but should exercise a
sound discretion, according to law.
2. Same— how instituted. The usual and proper mode of instituting a
proceeding in the nature of a quo warranto is, for the State's attorney to
submit a motion for leave to file the information, based on affidavit. A
rule nisi is then laid on the defendant to show cause why the information
should not be filed, which he may answer by counter affidavits.
3. Election — irregularities, waived by taking part. Where an elec-
tion for school trustee was held, but not at the place designated in the
26 The People ex rel. v. Waite. [Sept. T.
Opinion of the Court.
notices thereof, and the relator, who sought to avoid the election on that
ground, participated in the same, by voting, and running as an opposing
candidate, it was held.tlmt a sound public policy would .forbid him from
having the election of his opponent declared void on this ground, and that
a rule nisi to show cause why an information by him should not be filed
was properly discharged.
Appeal from the Criminal Court of Cook county; the
Hon. Lambert Tree, Judge, presiding.
This was an application by the State's attorney, for leave
to file an information of the relator, in the nature of a quo
warranto, against George W. Waite.
The opinion of the court gives a summary statement of the
case and the facts. The relator appealed.
Messrs. Willett & Herring, and Mr. Charles H. Reed,
State's Attorney, for the appellant.
Messrs. Leaming & Thompson, for the appellee.
Mr. Justice Scott delivered the opinion of the Court :
Our statute, in relation to informations in the nature of a
quo warranto, is a substantial, if not a literal copy of 9 Anne,
chap. 20, on the same subject. The granting of leave to file
such informations, has uniformly been held, both in this coun-
try and in England, to be within the sound discretion of the
court. Leave is not given as a matter of course, but a court
ought not arbitrarily to refuse leave, but should exercise a
sound discretion, according to law. Dillon on Mu. Cor., sec.
722; State v. Tehoe, 7 Rich. 246; Commonwealth v. Arrison, 15
Serg. & Rawles, 133; The People v. Sweeting, 2 Johns. 183;
King v. Hythe, 6 Barn. &. Cres. 247; King v. Peacock, 4 Term
R. 684; King v. Stacy, 1 Term R. 1.
The mode for instituting such proceedings is, usually, as
pursued in the case at bar. The State's attorney submitted
a motion, based on affidavit, for leave to file an information
in the nature of a quo warranto. A rule nisi was laid on
1873.] The People ex rel. v. Waite. 27
Opinion of the Court.
defendant to show cause why the information should not be
filed. Respondent answered the rule by counter affidavits.
This practice is warranted by the authorities. The People v.
Shaw, 14 111. 476; The King v. Symons, 4 Term R. 221 ; The
People v. Tibbitts, 4 Co wen, 383; The People v. Richardson,
4 Cowen, 103 and notes.
For cause shown, the court no doubt has a discretion to
grant or refuse the leave asked, according to the circum-
stances.
Relator claims, he was, in a legal manner, elected school
trustee for township 38, and that respondent has usurped
that office, and now holds it, and is exercising its functions
without authority of law. The affidavit shows respondent
was, himself, elected to that office, by the qualified voters
of the town. It is insisted, however, the election was void,
for the reason it was not held at the place designated in the
notices required by law to be posted prior to holding the
election.
The counter affidavits show relator participated in the elec-
tion he now seeks to have declared void, by voting thereat,
and was himself an opposition candidate to respondent. Re-
lator knew then, as well as now, what irregularities had inter-
vened in the conduct of the election, and he ought not to be
permitted to disturb the public welfare by having an election
declared void, in which he participated with a full knowl-
edge of all irregularities that existed. A sound public policy
forbids it. The only informality charged is, the election was
held at an improper place. This fact was known to relator.
He uttered no complaint at the time, but submitted his
claims to the office to the voters of the town voting at that
place, and claimed the right to and did have his own vote re-
corded. These facts make it inequitable that he should have
the remedy sought, and the court, in the exercise of a sound,
legal discretion, properly discharged the rule.
The judgment must therefore be affirmed.
Judgment affirmed.
28 Far well v. Warren. [Sept. T.
Opinion of the Court.
Charles B. Farwell
V.
William H. Warren.
Exemplary damages. Where a tenant, in possession of premises,
agreed with his landlord to surrender the same immediately in case of a
sale, and a party, on the faith of such assurance, bought the same for the
purpose of erecting a warehouse thereon, and contracted for the building
of the same, and the party in possession gave possession of a part of the
lot upon which to commence excavating the earth, and promised to go
out of the building in a few days, so as not to delay the work, but after-
wards repudiated his agreement, and refused to leave, and the workmen
removed his goods and demolished the house, so as to proceed with their
work : Held, in an action by the tenant against the purchaser, that this
was not a case for exemplary damages, if the tenant was not estopped
from claiming any.
Appeal from the Superior Court of Cook county ; the Hon.
William A. Porter, Judge, presiding.
This was an action of trespass, brought by William H. War-
ren against Charles B. Farweli and Dennis Curran. The
opinion of the court sufficiently presents the facts of the
case.
Messrs. Hitchcock & Dupee, and Mr. S. Ashton, for the
appellant.
Mr. J. Henry Truman, and Mr. J. R. Doolittle, for the
appellee.
Mr. Justice Sheldon delivered the opinion of the Court :
The record in this case shows that in September, 1868, the
appellant, Farweli, desired to purchase a lot in Chicago, upon
which to construct a warehouse for immediate use. He ap-
plied to one Fowler, a real estate agent, and instructed him
to find a suitable lot of which he could obtain immediate
possession, and negotiate for its purchase. The premises de-
1873.] Farwekl v. Warren. 29
Opinion of the Court.
scribed in the declaration were, at that time, owned by one
Crane, and occupied by the appellee, Warren, he living in a
small house thereon used as a dwelling and machine shop, his
family consisting of himself and a son sixteen years of age.
Crane desired to sell, and inquiry was made as to the power
to obtain immediate possession. Crane promised to see War-
ren, and report. He afterwards saw Warren, and told him
he wanted immediate possession. Warren said that he could
have it at once; that he would leave at any time. This state-
ment was communicated to Farwell, and the purchase was
thereupon consummated.
Crane states his understanding of the terms of Warren's
tenancy to have been, that the latter could leave at any time,
and Crane could terminate the tenancy at any time.
Before entering upon the premises, Farwell requested Fow-
ler to see Warren, and arrange for his leaving. Fowler testi-
fied that he called upon Warren on the premises, and told
him he had bought the property for Farwell, and he wanted
immediately to go to work excavating for a building. That
Warren said, as the street had been raised, they would have to
go to work from the alley, and there was plenty of room for
them to go to work, and that he wanted a day or two — two
or three days — to move out, and they could go to work, and
■before they got half way up to his building, he would be out
of the way; he would not be in the way under any circum-
stances. Thereupon Farwell employed Dennis Curran, a
defendant with him in this suit, to superintend the erection of
a building on the premises. Curran testifies that Warren
pointed out the corners of the lot to him, and said he would
get away right off, that he would not hinder them at all, and
that Curran could begin immediately to work.
After the whole footing-stone was in, as testified to by Cur-
ran, and when it became necessary to remove the house in
order that the work might progress, Warren undertook to
revoke the license he had given, and served a formal notice
30 Farweli, v. Warren. [Sept. T.
Opinion of the Court.
on Curran to stop, and demanded, through an attorney, quite
a large sum of money as a condition of leaving.
Afterward, Curran, without the direction, consent or knowl-
edge of Farweli, as testified to, in the absence of Warren,
entered and removed the stock of machinists' tools and some
articles of household furniture, and demolished the house.
Thereupon Warren -brought this action of trespass against
Farweli and Curran, jointly. The jury returned a verdict of
not guilty as to Curran, and of guilty as to Farweli, and
assessed the damages at $8000. The court below overruled
a motion for a new trial, made by the defendant Farweli, the
plaintiff having entered a remittitur of $3000, in accordance
with an intimation from the court that, unless it were done, a
new trial would be granted, and the court rendered judgment
on the verdict for $5000, to reverse which, defendant Farweli
has appealed.
Among the errors assigned for reversal, we deem it neces-
sary to consider but one, the refusal of the court below to
give to the jury the following instructions, which were asked
by the defendants, to-wit:
6th. " If the jury believe, from the evidence, that the
defendant Farweli desired to purchase the premises then occu-
pied by plaintiff;, that the plaintiff, knowing said facts, as-
sured Crane, the then owner, that he would give up pos-
session of the same to Farweli; that he, relying upon said
agreement of the plaintiff, purchased said premises for the
purpose of building thereon; that thereafter, Farweli, relying
on said agreement, entered into contracts for building on said
premises; that, in pursuance of said agreement, said plaintiff
also permitted said Farweli to take possession of a part of
said premises and to do work and expend money thereon, and
that plaintiff, after the above had occurred with his knowledge
and consent, warned defendants off said premises, and that
defendants thereafter entered into the house of said plaintiff,
did no injury to the person of said plaintiff, and removed his
1873.] Farwell v. Warren. 31
Opinion of the Court.
goods from his house, using no more force than was necessary,
then they are instructed that the defendants are only liable
for such damages, if any, as the evidence shows were actually
sustained."
8th. "If the jury believe, from the evidence, that the
plaintiiF gave defendant (Farwell) leave and license to enter
upon the premises upon which plaintiff resided, and agreed
to remove therefrom, and that, relying upon said license and
agreement, said Farwell entered into contracts for building on
said premises, and expended money in and upon the same,
and took possession of a portion thereof, that, thereafter, in
violation of said agreement, plaintiiF refused to remove, and
attempted to revoke or did revoke such license, and that there-
upon, and after demand of possession by said Farwell, said
defendants entered into the house of plaintiiF, and removed
his goods, using no more force than was necessary, then they
are instructed that the defendants are only liable for actual
damages which it appears by the evidence plaintiff sustained."
We think, under the evidence in this record, these instruc-
tions should have been given. The state of facts set forth in
tjie instructions does away with any case for exemplary dam-
ages. The acts complained of were invited by appellee's own
conduct. The taking away the building appellee occupied,
had become necessary in the course of the prosecution of the
work of constructing appellant's warehouse. Appellee had
induced appellant to make a large expenditure of money, and,
with a large force, enter upon the work of erecting the build-
ing by the permission of appellee, and under his assurance
that he would remove. Under such circumstances, the re-
moval of appellee's goods was but an act which had been con-
templated by the parties should be done, and which appellee
ought to have done himself, in fulfillment of his agreement
so to do. The question in such case might rather seem to be,
whether appellee was not estopped, by his conduct, from
claiming any damages; whether it did not amount to an
32 Nixon v. Noble. [Sept. T.
Statement of the case.
implied license to do all that was done. There would be no
such circumstances of wantonness or outrage as to entitle to
punitive damages. Their allowance in the case supposed by
the instructions, instead of being in punishment of wrong-
doing, and of example to deter therefrom, would be so much
in reward of appellee's faithless and wrongful conduct, and
would be rather of evil example. There was ample evidence
upon which to base the instructions.
Under the evidence in the record, a considerable portion
of the judgment may be supposed to have been for punitive
damages.
For error in refusing these instructions, without adverting
to anything more, the judgment must be reversed and the
cause remanded.
Judgment reversed.
James M. Nixoit
v.
George W. Noble.
Forcible detainer — sufficiency of demand by an agent. A demand of
possession by a landlord, which is served by his agent, where the demand
itself discloses the fact of the agency of the person serving the same, is
sufficient.
Appeal from the Circuit Court of Cook county; the Hon.
John G. Rogers, Judge, presiding.
This was an action of forcible detainer, brought by George
W. Noble against, James M. Nixon, before a justice of the
peace, and taken by appeal to the circuit court.
The following is a copy of the written demand for posses-
sion :
"To James M. Nixon :
Sir — You will please to take notice, that I demand imme-
diate possession of those certain premises, now occupied by
1873.] Nixon v. Noble. 33
Opinion of the Court.
you, known as" (giving description), "of which said premises,
you have possession under a certain lease, dated the 8th day
of May, A. D. 1872, of the same, from me to you, from the
9th day of May, A. D. 1872, for and during, and until the
6th day of June, A. D. 1872, which said term has now ex-
pired. Mr. Joel Lull is hereby constituted my agent to re-
ceive such possession from you, and is authorized to and
will receive the same for me. Yours, etc.,
Chicago, June 7, 1872. G. W. Noble."
This demand was served on the defendant by Lull, on June
12, 1872, by the delivery of a copy, and possession refused.
The other facts appear in the opinion.
Messrs. Eldrldge & Tourtellotte, for the appellant.
Messrs. McCagg, Fuller & Culver, for the appellee.
Mr. Justice Scholfield delivered the opinion of the
Court :
At the commencement of the trial, in the court below, ap-
pellant moved the court to dismiss the complaint, upon the
ground that the notice to him, in reference to Lull's agency,
was not in writing. The court overruled the motion, and
appellant excepted.
It is now contended that the demand for possession does
not contain any notice of Lull's agency, or that appellant
knew or had any cause of knowing that Lull was an agent.
This objection is not supported by the record. The notice,
as it therein appears, contains this clause t "Mr. Joel Lull is
hereby constituted my agent to receive possession from you,
and is authorized to and will receive the same for me." Lull
was examined as a witness, upon the trial, and proved the ser-
vice of the demand in writing for the possession of the prop-
erty, upon the appellant, by copy, and that appellant refused
to surrender possession.
We are unable to perceive the slightest objection either to
3— 70th III.
34 Jones v. Albee. [Sept. T.
Syllabus.
the demand itself, the appointment of Lull as agent, or the
sufficiency of'the service of the notice.
The term for which the property was let to appellant, was
four weeks; and it is contended that the evidence shows that
appellee verbally agreed to let appellant have the property
for another term of one year, commencing at the expiration
of the first term. One witness does swear to such an agree-
ment, but it is directly contradicted by the evidence of appel-
lee. If the witnesses were equally credible, the fact is not
proved. We can not say the jury ought to have found, under
the evidence, otherwise than as they did.
We perceive no error in the record, and the judgment is
therefore affirmed.
Judgment affirmed.
K. K. Jones
V.
H. A. Albee. s
1. Pleading— when fraud is set up, the facts constituting it must be
stated. A plea setting up fraud in procuring the execution of a guaranty,
must set out the facts constituting the fraud. A general allegation that
the defendant was induced to execute the contract by means of fraud,
covin and misrepresentation of the plaintiff, and others in collusion with
him, is bad on demurrer.
2. Pahol evidence — varying written contract by parol. In a suit upon
a written guaranty of the payment of a note, a plea which sets up a parol
contract made at the same time, limiting the liability of the indorser or
guarantor, can not be sustained upon any principle of law.
3. Same — to change liability of indorser of note. In an action by an
indorsee of a promissory note against the indorser, it may be shown by
parol that the indorsee held as agent for the indorser, or in trust, or for
collection merely, or that the same was sold without recourse, and that the
indorsement was afterwards made merely to transfer the legal title. These
cases are exceptions to the general rule.
4. Judiciary — of Cook county — each judge may hold court alone. The
intention of the constitution of 1870 is, to give the several judges of the
1873.] Jones v. Albee. 35
Opinion of the Court.
circuit and Superior courts of Cook county identically the same powers,
and place them on the same footing of circuit courts, but composed of
branches corresponding with the number of judges, each judge, while
holding such branch, to have all the powers of a circuit court. It does
not require a majority of the judges of either of said courts to sit together,
but each may hold court by himself.
5. Placita — should show the judge holding the court. The placita of the
record, in a case coming from the courts of Cook county, should show
that the court was held by one judge only, and he should be the one
before whom the cause was tried, and he should sign the bill of excep-
tions in actions at law, and sign decrees, and certify the evidence in suits
in equity.
6. Constitutional law — whether judge may hold court out of Ms cir-
cuit. While the constitution requires each circuit judge to reside in the
circuit in which he is elected, yet he is not, in terms or by implication,
prohibited from holding court in another circuit, in such manner as may
be prescribed by law.
7. A circuit judge from a different circuit may properly preside as a
judge in the Superior Court of Cook county, when requested, under the
provisions of the act of May 3, 1873, and the proceedings before him
will not be invalid on that account.
Writ of Error to the Superior Court of Cook county ; the
Hon. Josiah McRoberts, Judge, presiding.
Mr. W. J. Durham, for the plaintiff in error.
Messrs. Walker, Dexter & Smith, for the defendant in
error.
Mr. Justice Craig delivered the opinion of the Court :
This was an action of assumpsit, brought in the Superior
Court of Cook county, by H. A. Albee against K. K. Jones.
At the July term, 1873, the cause was tried before a jury,
and verdict rendered in favor of the plaintiff for $2984.96.
The defendant brings the case to this court by writ of error,
and asks a reversal of the judgment.
The record shows this suit was brought on a written guar-
anty upon a promissory note, which read as follows ;
36 Jones v. Albee. [Sept. T.
Opinion of the Court.
" September 27th, 1870.
"One year afterdate, for value received, I promise to pay
to H. A. Albee two thousand three hundred and twenty-six
dollars and thirty-one cents, with interest at ten per cent per
annum. M. A. Cushing."
Indorsed, " For value received I hereby guaranty the pay-
ment of the within note at maturity. K. K. Jones."
The first point relied on by the defendant, in his argument,
is, the court erred in sustaining a general demurrer to an addi-
tional plea, and fourth plea by him filed to plaintiff's declara-
tion. The only material allegation in the additional plea is
this: " Defendant avers that the plaintiff caused and procured
the defendant to enter into the said agreement, and indorse
the said note, and promise as in the said declaration alleged,
and the defendant was induced to enter into and make the
said agreement and promise, and indorse said note, through
and by means of the fraud, covin and misrepresentation of
the plaintiff, and others in collusion with him."
This plea can not be sustained by any well settled authority
on pleading. If the defendant desired to rely on fraud, the
facts constituting the fraud should have been set out in the
plea. This we understand to be a well settled rule of plead-
ing. Slack v. McLagan, 15 111. 249.
The substance of the fourth plea is, that the defendant
bought a manufacturing business and patent right of the
plaintiff. The price to be paid was what they had cost the
plaintiff, and that the plaintiff falsely said they cost $7326.31,
which the defendant paid, in cash, $5000, and the balance by
indorsiug the note sued upon; that the plaintiff agreed, by
parol, at the time the note was indorsed, not to hold the
defendant on the indorsement for more than such actual cost,
while in truth and in fact the cost of the manufacturing
business and patent right was but $3300.
We are aware of no principle of law upon which this plea
can be sustained. The indorsement of this note was a written
contract. The pleader sets up a parol contract made at the
1873.] Jones v. Albee. 37
Opinion of the Court.
same time, by which he seeks to change the liability of the
indorser, which was absolute.
The rule that parol evidence can not be admitted to con-
tradict or change a written contract, is based on the soundest
principles of public policy, and we regard a strict enforce-
ment of this rule to bills of exchange and promissory notes,
as very important to the commercial interests of the country.
In the case of Mason v. Burton, 54 111. 354, this court held, in
an action by an indorsee against the indorser, and where the
note was indorsed in blank, that the legal effect of the indorse-
ment was, a written contract, which could not be impaired by
parol proof of a verbal agreement, made at the same time of
the indorsement, to the effect that the indorser should not be
held responsible.
There are only a few classes of cases that form an excep-
tion to the rule stated. In a suit by the indorsee against the
indorser, it might be shown that the indorsee held as an
agent for the indorser, and, of course, could take no interest,
and would have no right to maintain suit.
Or, it might be shown the note was indorsed for some
special purpose, and is holden in trust, as, where a client
would indorse to his attorney for collection merely.
Or, it might be shown that a note had been sold on a con-
tract by which reliance was to be placed solely on the responsi-
bility of the maker, and the indorsement was merely to
transfer the title under the contract, and that an attempt to
hold the indorser was a fraud.
These cases may be considered as an exception to the gen-
eral rule; but the plea in this case does not fall within the
principle of any of these excepted cases.
The case of Scammon v. Adams, 11 111. 576, cited by defend-
ant, does not sustain his position. The question there was,
in what character the indorsee held the note, whether as
owner, or agent, or trustee. The case fairly falls within one
of the exceptions named.
38 Jones v. Albee. [Sept. T.
Opinion of the Court.
Neither is the case of Van Buskirk v. Day, 32 111. 260,
cited by defendant, in point. The question there decided is,
under a proper plea of fraud to a note, that parol proof was
admissible to show that the note was procured through fraud
and false representation.
The next point made by the defendant is, that the court
erred in excluding from the consideration of the jury the evi-
dence of Bangs and Jones.
This was proper. Bangs and Jones testified to representations
made by Cushing. This evidence the court excluded, for the
very good reason that the plaintiff was not in any manner
bound by the declarations or statements Cushing might make.
There is no evidence in the record that Cushing was the
agent of the plaintiff, or had any authority to do or say any-
thing for him.
The only remaining question raised by defendant is, that
Josiah McEoberts, judge of the seventh judicial circuit, had
no authority to preside as judge in the Superior Court of
Cook county.
When the constitution of 1870 was submitted for adoption,
the circuit court of Cook county had one judge, and the
Superior Court of Chicago three judges. By the 23d section
of article 6, of that instrument, it is declared that the former
court shall consist of five judges; that the latter court shall
be continued, and called the Superior Court of Cook county ;
and it is provided that "the General Assembly may increase
the number of said judges, by adding one to either of said
courts for every additional 50,000 inhabitants in said county
over and above a population of 400,000. The terms of office
of the judges of said courts hereafter elected shall be six
years."
By the 24th section of the same article, it is provided as
follows: "Any judge of either of said courts shall have all
the powers of a circuit judge, and may hold the court of
which he is a member. Each of them may hold a different
branch thereof at the same time." When all of these provisions
1873.] Jones v. Albee. 39
Opinion of the Court.
are considered together, it is apparent the intention of the
framers of the constitution was, to give the several judges of
these respective courts identically the same powers and place
them precisely upon the same footing; and that it was not
the intention to make these courts otherwise than circuit
courts, but composed of branches corresponding with the
number of judges, each judge, while holding such branch,
having all the powers of a circuit court. The sitting of all
or a majority of the judges of which the circuit court con-
sists, as comprising the court and exercising its powers, was
not contemplated, and, as we think, is not authorized by the
constitution. If such had been intended, with the power
given to the legislature to increase the number of judges
according to population, surely it would have been provided
that some certain number should constitute a quorum. In sec-
tion 2 of the same article, creating the Supreme Court, and
declaring that it shall consist of seven judges, it is provided,
"one of said judges shall be chief justice; four shall consti-
tute a quorum, and the concurrence of four shall be necessary
to every decision." No such provision is contained in either
of the sections relative to these courts in Cook county.
As we have said, the intention is manifest that the organiza-
tion of these two courts, and the powers of the judges, should
be identically the same, the only difference being that there
are two more judges in one than in the other. It follows,
from these views, that the practice of having the placita
show that these courts were respectively held by all the judges
of which they consist, is improper, because each judge is but
a circuit judge, and each branch of the court, as held by the
different judges, are circuit courts, held in the name of the
court of which the judge holding it is a member. The
placita should show the court was held by one judge, and he
be the one before whom the cause was heard, who should
sign the bill of exceptions in actions at law, sign decrees and
certify to the evidence in suits in equity. Had this course
40 Jones v. Albee. [Sept. T.
Opinion of the Court.
been pursued, the record in this case would not have been in
the confused condition it now is.
In the record filed, the plaeita shows the court was held by
Wm. A. Porter, Joseph E.Gary and John A. Jameson, judges
of the Superior Court. The bill of exceptions is signed by
Joseph E. Gary. In the commencement of the bill of excep-
tions, it is stated that the case . was heard before Josiah
McRoberts, judge. Since the cause has been pending in this
court, the defendant has procured an amendment to the
record, from which it appears that Josiah McRoberts, judge
of the seventh judicial circuit, actually presided, and the cause
was tried before him.
It is insisted, by the attorney for the defendant, with much
ability, that Judge McRoberts had no authority to preside as
judge in the Superior Court of Cook county.
On the 3d day of May, 1873, the legislature passed an act,
the first section of which reads as follows: "Whenever any
judge or judges of any circuit court or the Superior Court of
Cook county, shall request any judge or judges of any other
court of record to come to the assistance of such judge or
judges making such request, in the trial of causes, and in
other matters pending in court, it shall be lawful for such
judge or judges so requested to hold a branch or branches
of the court to which he or they are so requested to come,
with the same force and effect as if he was, or they were, the
judge or judges of such court."
We are aware of no provision of our constitution that this
section violates. The constitution requires each circuit judge
to reside in the circuit in which he is elected ; but he is not,
either in terms or by implication, prohibited from holding
court in another circuit, in such manner as may be provided
by law.
The power of circuit judges to interchange circuits had
long existed, and had never been questioned prior to the
making of the constitution of 1870, and had the framers of
that instrument intended to have prohibited one circuit judge
1873.] Strohm v. Hayes. 41
Syllabus.
from holding court for another, it must be apparent to all
a prohibitory clause would have been framed for that pur-
pose.
The judges of the Superior Court being circuit judges, and
the court in which they preside a circuit court, we are of
opinion that Judge McRoberts might properly preside as
judge in the Superior Court.
The validity of the second section of the act of May 3,
1873, is not before us, and upon which we express no opinion.
As no error is perceived in the record, the judgment will
be affirmed.
Judgment affirmed.
Henry Strohm
v.
John R. Hayes.
1. Practice — trial without issue on a plea is a waiver of a formal issue.
Proceeding to trial without an issue being made up on one of the pleas, is
considered as a waiver of a formal issue, and the irregularity will be cured
by the verdict.
2. If the defendant neglects to rejoin to a special replication, the
plaintiff may obtain a rule to rejoin, or pray judgment for want of a re-
joinder. If he does neither, and goes to trial without objection, the want
of a formal issue will be waived.
3. Pleading and evidence — chattel mortgage may be shown fraudulent
without plea so charging. Where property is claimed under a chattel mort-
gage, the other party, acting for creditors, may attack it for fraud, without
any pleading disclosing the grounds and nature of the attack.
4. Practice — cross-examination of party to suit. Where the plaintiff
is a witness in his own behalf, and claims property under a chattel mort-
gage, and gives a history of the transaction, great latitude will be allowed
in his cross-examination, especially where fraud is charged.
5. Chattel mortgage — when fraudulent as to creditors. If a chattel
mortgage is executed, not alone to secure an indebtedness to the mortga-
gee, but to protect the property of the mortgagor, and to hinder and delay
his creditors, and this fact is known at the time by the mortgagee, the
mortgage will be void as to the creditors attempted to be defrauded.
42 Strohm v. Hayes. [Sept. T.
Opinion of the Court.
6. Error — record must show instructions given, as well as those refused.
If a party assigns for error the refusal to give part of his instructions,
the record should show those that were given, as well as those refused.
7. Error will not always reverse. Where it is apparent that a
party could not have recovered with the most favorable instructions, an
error in refusing instructions furnishes no ground of reversal, as the error
works no prejudice.
Appeal from the Circuit Court of Stephenson county ;
the Hon. William Brown, Judge, presiding.
Mr. U. D. Meacham, for the appellant.
Mr. J. M. Bailey, and Mr. J. I. JSTeff, for the appellee.
Mr. Chief Justice Breese delivered the opinion of the
Court :
This was an action of replevin, in the Stephenson circuit
court, brought by Henry Strohm against John E. Hayes, re-
sulting in a verdict and judgment for the defendant, to reverse
which, plaintiff appeals.
The principal error relied on is, that a trial was had with-
out an issue having been made up to the defendant's fifth
plea.
That plea was, in substance, that defendant was sheriff of
Stephenson county, and, as such, had levied an execution in
favor of Harrison Wood manse, against Thomas H. Smith
and I. D. Kennison, concluding with an averment that the
property belonged to Smith and Kennison, and was not the
property of the plaintiff. To this plea the plaintiff replied
specially, setting up a chattel mortgage upon the property,
made by Smith and Kennison to him, in which it was provi-
ded, in case the property was attached or claimed by any
other person than Smith and Kennison, the plaintiff should
have the right to take immediate possession, concluding with
a verification.
Admitting the law to be as claimed by appellant, the fifth
plea having set up matter of positive right by the levy of an
1873.] Stkohm v. Hayes. 43
Opinion of the Court.
execution, a special replication was proper, and was required,
still it does not follow it was error to proceed to trial without
a rejoinder to such replication. Appellant made no objection
to proceeding to trial as the pleadings were. He might have
put defendant under a rule to rejoin, or prayed judgment
against the defendant for want of a rejoinder, but he did not.
Barnett v. Graff, 52 111. 170. In analogy to the rule of pro-
ceeding held in Mager v. Hutchinson, 2 Gilm. 266, it may well
be questioned if it is not too late to raise the objection for
the first time in this court. But, however that may be, this
court has held, in a large number of cases, and it is now the
settled doctrine of this court, that, proceeding to trial, an
issue not being made up on one of the pleas, it is considered
as waived, or the irregularity cured by the verdict. Hoss
et ah v. JReddick, 1 Scam. 73; Armstrong v. Mock, 17 111. 166.
The case was tried precisely as though a formal issue had
been made up on the fifth plea. The plaintiff had the benefit
of the chattel mortgage set out in his special replication to it,
and its validity was the important fact tried by the jury. He
can not now complain. Bunker v. Green, 48 111. 243. And
the court would indulge the presumption, if necessary, that
all evidence properly admissible under the unanswered repli-
cation was heard precisely as though the issue had been
formed. Beesley v. Hamilton, 50 ib. 88. There is nothing in
this objection. Really, the special replication was nothing
more than a reiteration by plaintiff of his right, setting out
the muniment of his title, to-wit: a chattel mortgage.
Another objection made by appellant is, the court permit-
ted appellee to go into proof of fraud in the execution of the
mortgage, without any plea charging fraud.
The answer to this is, when plaintiff set up the mortgage
as his title to the property, it became exposed to all attacks
which could be made against it. The party attacking, in such
a case, is not required, by plea, to disclose the grounds of the
attack. He who produces a mortgage in evidence is presumed
to be prepared to show it was made in good faith, and for an
44 Stkohm v. Hayes. [Sept. T.
Opinion of the Court.
honest purpose, and valid in other respects. Suppose the
instrument had no seal, or was not acknowledged, it surely
would be exposed, on trial, to such objection, though not
pleaded.
Another objection is, that appellee was permitted to cross-
examine the witness, who was the plaintiff himself, on mat-
ters which had not been touched upon in his examination in
chief.
The record shows the plaintiff, when examined as a witness
on his own behalf, went fully into the matter of the execution
of the notes and mortgage, their consideration, the value of
the several articles of property covered by the mortgage, in
short, into a full history of the transaction. We do not think
appellee, in the cross-examination, overstepped the bounds
prescribed, especially in a case where fraud is the principal
question, and the party seeking advantage from the fraud
charged is his own witness. Great latitude will be allowed
undjer such circumstances.
Another point is, that the verdict of the jury is against the
weight of evidence.
Upon this point, we are satisfied with the verdict. The
debt due appellant by Smith and Kennison, who were his
tenants, was four hundred and thirty-one dollars. They were
largely indebted to other parties at the same time. All their
liabilities, appellant's claim included, amounted to quite two
thousand dollars, and this appellant knew. Under these cir-
cumstances they executed the mortgage in question, covering
property of the value of eighteen hundred dollars, being
nearly all the mortgagors owned, and what was omitted from
the mortgage was secured to them by the exemption laws. It
is unnecessary to detail the facts connected with the transac-
tion subsequent to the mortgage. They all tend to show the
motive which prompted its execution. The evidence conclu-
sively shows it was executed, not alone to secure appellant,
but to protect the property from the creditors of the mortga-
gors, and to hinder, delay and defraud them.
1873.] Steohm v. Hayes. 45
Opinion of the Court.
The remaining point made by appellant is upon the in-
structions. He complains that three certain instructions
which he asked, among others, were refused.
We can not well determine if there was error in this, with-
out the others are brought to our notice. It may be, some
one or all of the others were given, and embraced the points
raised in the three refused. It is unnecessary to determine the
propriety of these instructions in the light of those given for
appellee, in which the law is given fully to the jury, and in
which are embraced all the points contained in those refused,
substantially. Had the refused instructions been given, we
do not see that they could have changed the verdict. In
looking into the whole record, we are satisfied the evidence is
of such a character as to compel a verdict such as was given,
under the most favorable instructions which could be framed
for appellant. If it was error to refuse these instructions, it
was an error which could not have prejudiced appellant, and
how often soever this cause may be tried, just so often will be
the like verdict. The justice of this case has not been affected
by the refusal, and therefore this refusal does not afford suffi-
cient ground for the reversal of the judgment. Lawrence v.
Jarvis, 32 111. 305.
We have fully considered the objections taken to the
instructions given for appellee, but do not consider them sub-
stantial. The law was correctly given to the jury by them,
and they were required by the nature of the case.
We are of opinion justice has been done, and must affirm
the judgment.
Judgment affirmed.
46 Wilson v. South Park Commissioners. [Sept. T.
Syllabus.
Robert L. Wilson
The South Park Commissioners.
1. Fraud — delivering deed in blank. The delivery of a deed in blank,
by which to obtain money of one not informed of the fact that it is in
blank, affords strong evidence that a gross and palpable fraud was in-
tended, which will make all the parties to the fraud liable in an action
for the damages resulting.
2. Criminal law— filling blanks in deed without a power of attorney.
The filling up of the blanks in a deed signed by the grantor, with the
name of a grantee, and a description of land, without authority, is a crim-
inal act, and makes the party #0 offending liable to a prosecution for
forgery.
3. Deed — if blanks are filled without authority, it will be void. If a deed
has no description of any land or the name of any grantee, but is in blank,
except the names of the grantors, and the blanks are afterwards filled so
as to show a grantee and a description of land, without authority, it will
be void.
4. Witness — credibility. Where an officer, who has certified to the
acknowledgment of a deed by husband and wife in proper form, testifies
that the wife was not present, and did not acknowledge the same, his tes-
timony will be entitled to but little weight against his certificate.
5. Deed op trust — conveyance by trustee passes legal title without regard
to notice of sale. A conveyance of land by a trustee, with, or even with-
out notice, as required in the deed of trust, will pass the legal title to his
grantee, and, until a redemption is had, he will hold it, and may set it up
in defense of an action of ejectment.
6. Same — innocent purchaser may rely on recitals in trustee's deed as to
notice of sale. Where land sold by a trustee under a deed of trust has
passed into the hands of an innocent purchaser, and the trustee's deed
recites a compliance with all the requirements of the trust deed, as to the
giving of notice, etc., such purchaser is not bound to go behind the deed
to learn whether its recitals are true or not. The remote purchaser, to be
affected, must be chargeable with notice of a defect in the execution of
the power.
7. Limitation — under act of 1839. Where land is sold under a deed
of trust, and the grantee and those succeeding to his claim and color of
title pay all taxes thereon for seven successive years, while the land is
vacant and unoccupied, and then take possession, this will present a com-
plete bar to an action of ejectment by the grantor in the trust deed, under
the Limitation Act of 1839.
1873.] Wilson v. South Park Commissioners. 47
Opinion of the Court.
8. Evidence — secondary — when duplicate must be produced. If, from the
nature of the case, it is manifest that a more satisfactory kind of secondary-
evidence exists, the party will be required to produce it; otherwise, the
objector must not only prove its existence, but, also, that it was known
to the other party in time to have been produced at the trial.
9. Thus, where an original tax receipt was destroyed, and the fact of
there having been a duplicate receipt sent to a distant place, appeared on
the trial, but there was no proof that the party seeking to prove payment
of taxes had any prior notice of its existence, it was held, that parol evi-
dence was properly received.
Appeal from the Circuit Court of Cook county; the Hon.
Henry Booth, Judge, presiding.
Messrs. Miller & Frost, for the appellant.
Messrs. Ayer & Kales, and Mr. J. Y. LeMoyne, for the
appellees.
Mr. Justice Walker delivered the opinion of the Court :
Appellant brought ejectment, for the recovery of forty acres
of land, situated in Cook county, being the west half of the
east half of the north-west quarter of section 15, township
38 north, range 14 east of the third principal meridian. On
the trial below, he introduced what was treated by the parties
as evidence of title in fee. Whereupon, the defendant below
introduced evidence of a trust deed executed by appellant to
one James Otis, dated December 24, 1857, which was duly
recorded on the 29th of the same month, which was given to
secure appellant's promissory note, of the same date, for
$1500, payable in six months, with ten per cent interest.
The deed contained a power to sell, on default of payment,
at auction, to the highest bidder, for cash, after having adver-
tised the sale for ten days in a newspaper published in the
city of Chicago, and to execute and deliver a deed to the pur-
chaser; also, evidence of a sale by Otis, the trustee, to one
Fletcher, dated on the 14th of April, 1859. The deed from
the trustee contained a recital that all of the requisites
imposed by the trust deed had been complied with in
48 Wilson v. South Paek Commissioners. [Sept. T.
Opinion of the Court.
making the sale, after a default in payment of the note.
To overcome this evidence, appellant introduced himself
as a witness, and testified that the trust deed, when acknow-
ledged and delivered by him to Wheeler, to be delivered
to the person who might loan the money, was a printed
blank, having neither grantee's name, a description of the
land, the consideration, nor, in fact, anything written
therein but the name of himself and his wife. In his
statement, he is corroborated by Wheeler, Schenk and Cob-
lentz. On the other side, James Otis and L. B. Otis swear
unequivocally that the blank was filled up complete by James
before it was executed, and sent back to Sterling for the pur-
pose, and came back signed and acknowledged, before the
money was loaned or the deed received. They both testify
that Wheeler first presented a deed signed in blank, which
they positively refused to receive. Waughop swears he had
occasion to examine the original deed, and that it was in the
handwriting of James Otis.
From this evidence, we are inclined strongly to believe
that the deed was filled up and complete when it was deliv-
ered. That it should have been, would only be according to
the almost uniform course of business; and to have been
delivered in blank, would be strong evidence that a gross
and palpable fraud was intended by the parties, which would
have rendered each and all of the parties liable to a suit for
any and all damages resulting from the fraud ; and we can
hardly suppose that all the persons engaged in this transac-
tion, saying nothing of common honesty, would be so reck-
less of their interest as to incur such a liability to the de-
frauded purchaser, as to execute, deliver and act under such
an instrument. Again, we could not expect any but the most
reckless, if not depraved, to fill up such blanks in the deed
without a power of attorney, thus incurring the hazard of a
prosecution for forgery. L. B. Otis was a lawyer of experi-
ence, and had for several years been a circuit judge in a sis-
ter State, and it is not reasonable to suppose that he would
1873.] Wilson v. South Paek Commissioners. 49
Opinion of the Court.
have been so ignorant as not to know that it was criminal,
without authority, to fill the blanks in the deed. Even if
appellant had verbally authorized Wheeler to fill the blanks,
still Judge Otis must have known the power would be insuffi-
cient, and would render the deed void, and in case of a crim-
inal prosecution, he would, in all probability, have found it
difficult to prove the verbal authority.
Again, L. B. Otis testifies that he received a letter, purport-
ing to have been written by appellant, and postmarked at
Sterling, asking for an extension of time for payment, and on
the payment of six months' interest by Wheeler & Co., the
time was extended. As to such a letter, appellant swears he
has no recollection of having written it.
We can hardly suppose that intelligent business men would
transact business so recklessly, especially after being informed
by Otis that a deed thus altered would be void. There must
have been two deeds presented, and these witnesses must have
had the first in their mind when they testified ; and as to the
evidence of Coblentz, we do not think it entitled to any great
weight, as he swears that he took the acknowledgment to the
blank, and that Mrs. Wilson was not present, nor did she
acknowledge the deed. Such recklessness and official delin-
quency must greatly impair the value of the evidence of such
a witness. If so reckless in the discharge of his official duties,
he may be, and possibly is, so in his testimony. When he
certified that Mrs. Wilson was present, and that he examined
her to ascertain whether the execution of the deed was vol-
untary or not on her part, according to his testimony he
certified to what was palpably false. This greatly impairs
his credit as a witness. The evidence, considered in the
light of surrounding circumstances, was, we think, sufficient
to warrant the jury in finding the deed was complete when
delivered.
If the deed was complete when it was acknowledged,
and we think the evidence clearly preponderates in its favor,
then it becomes immaterial to consider the question as to
4 — 70th III.
50 Wilson v. South Park Commissioners. [Sept. T.
Opinion of the Court.
whether there was a failure to comply strictly with the
requirements of the deed in advertising the property for sale.
If the deed was complete, then the legal title passed from
appellant to James Otis, and his conveyance, with, or even with-
out, notice, would pass the legal title to his grantee, Fletcher,
and, until a redemption should be had, he would hold it, and
could set it up in an ejectment, as in that action none but
the legal title can be tried or regarded. Equities are not tried
in such an action, and, as against appellant, Fletcher or his
grantees could set it up as a complete bar to a recovery.
This is elementary, and requires the citation of no authority
in its support.
But there is another consideration, in reference to a sale
where all of the requirements in the deed have not been
complied with, by the trustee, in making the sale. In this
case, there are innocent purchasers, and where there are such,
and the deed executed by the trustee recites a compliance
with all such requirements, they are not bound to go behind
the deed to ascertain whether or not the recitals are true.
This rule is announced in the cases of Reese v. Allen, 5 Gilm.
236; Cassell v. Ross, 33 111. 244; Hamilton v. Lubukee, 51 111.
415. In such a case, the remote purchaser, to be affected,
must be chargeable with notice. In such cases, the person
executing the trust deed, selects his trustee, and usually con-
veys to a person in whom he reposes confidence, both as to
his integrity and business capacity, and having reposed the
confidence and conferred the power on him to act, if it is
abused, he must be held responsible for the improper selec-
tion. Even where he authorizes the assignee to execute the
power, he must be equally responsible, as he confers the power,
and if improvidently done, the innocent must not suffer for
his want of prudence, unless they can be charged with notice
of the abuse of the power. It would be highly inequitable
and unjust to hold otherwise, and would lead to ruinous sac-
rifice of the trust property, as none but the speculator would
purchase, and he at low rates, if the remote purchasers, at
1873.] "Wilson v. South Park Commissioners. 51
Opinion of the Court.
every step in the chain of title, were compelled to collect and
preserve the evidence of the regularity of the trustee's sale.
It is, however, said that appellees have not shown that they
occupy the relation of bona fide purchasers, by showing the
payment of the purchase money. This, manifestly, is a mis-
take of fact, as the evidence shows that the park, commis-
sioners have paid the condemnation money ; so that under
the strictest rules that can be applied, appellees have shown
themselves to have been bona fide purchasers, and there is
nothing in the record to charge them with notice. This find-
ing of the jury on the question of the filling up of the deed
before its delivery, is conclusive of the case.
In addition to all this, the evidence shows a complete bar
under the Limitation Act of 1839. Fletcher and his grantees
undeniably held claim and color of title, and there can be no
question of their good faith in the title. They paid all taxes
legally assessed on the land for the period of full seven years,
whilst the land was vacant and unoccupied, which was fol-
lowed by possession under the claim and color of title, before
the commencement of this suit. That the taxes were so paid
whilst the land was vacant and unoccupied, the evidence
scarcely leaves room for a doubt. It is so full, clear and
satisfactory to our minds, that we can not conceive that a
court could have permitted a different verdict to stand. It
is said that one five acres of this tract was sold for a drainage
tax ; but the evidence is clear and convincing that no portion
of this tract was thus sold, but it was another quarter, and
that the taxes on this were, in fact, paid for that year.
It is urged that the duplicate tax receipts, sent by the
agent to Vermont, should have been produced, as the originals
had been destroyed by fire. There is no evidence that such
duplicates are in existence, as no witness states they are, but
only that they once existed and were sent to the owner. But
even if they are, the parties to this suit had no knowledge
of the fact until spoken of by the witness on the trial.
Greenleaf, in his work on Evidence, (12 ed. sec. 84, and notes,)
52 Peaieie State L. & T. Co. v. Doig et ah [Sept. T.
Syllabus.
lays down the rule: "That if, from the nature of the case
itself, it is manifest that a more satisfactory kind of secondary
evidence exists, the party will be required to produce it ; but
that, where the nature of the case does not of itself disclose the
existence of such better evidence, the objector must not only
prove its existence, but also must prove that it was known to
the other party in season to have been produced at the trial."
It is unusual for persons paying taxes to take duplicate
receipts, and, so far as this record discloses, appellee did not
know that such were taken, or that there was reason to believe
that any such existed. Nor do we find anything in the
record which was calculated to put appellee upon inquiry for
such duplicates, and hence, the parol evidence was properly
admitted. Although the verdict is sustainable on the other
grounds discussed, the bar of the statute is conclusive of all
other questions. That terminates all such questions, and
ends the controversy.
The judgment of the court below is affirmed.
Judgment affirmed.
The Peaieie State Loan and Tkust Company
v.
Alexander Doig et dl.
1. Negligence — owner of premises not responsible for acts of contractor
having full charge of the work. Where the relation of master and servant
does not exist, nor directly that of employer and employee, but the work
is let to a principal contractor to do the labor and furnish the materials
for the erection of a building, the owner is not responsible for the negli-
gent conduct of the workmen engaged in the use of machinery, or for
any other negligence on their part.
2. Instruction — giving a construction to witness' testimony. Where the
testimony of a witness is equivocal, and may as well be understood one
way as in another, it is error for the court, in its instructions, to assume
that there is no evidence of a fact which the testimony may tend to prove.
1873.] Prairie State L. & T. Co. v. Doig et al 53
Opinion of the Court.
3. Thus, in an action against the owner of a lot, to recover for an in-
jury caused by negligence of the workmen engaged in building a house
thereon, where a witness testified that the building was erected for the
owner of the lot, who was sued, an instruction to the jury that they were
not to presume, in the absence of all evidence on that point, that the build-
ing was being put up under a contract with another, was held erroneous,
as assuming what the witness meant in his testimony.
Appeal from the Circuit Court of Cook county ; the Hon.
John G. Rogers, Judge, presiding.
This was an action on the case, by Alexander Doig and
Irvin VanDuzer against The Prairie State Loan and Trust
Company, for alleged injuries to property by the falling of a
derrick.
The opinion of the court states the material points and
questions arising in the case. The jury found the defendant
guilty, and assessed the plaintiff's damages at §600, upon
which the court rendered judgment, refusing a motion for a
new trial.
Messrs. Scoville, Corwin & Bayley, for the appellant.
Messrs. Runyan, Avery, Loomis & Comstock, for the
appellees.
Mr. Justice Scott delivered the opinion of the Court :
This action was to recover for injury to property of appel-
lees, caused by the falling of a derrick. The evidence which
connects appellant with the cause of the injury, is not of a
satisfactory character.
It is sought to charge the company, on the testimony of the
witness Scoville, who stated the company owned the property
and the new building erected thereon, where the accident
occurred. To the question, "Was it erected by them; was it
erected for them?" the witness answered, "It was erected for
them." This is all the evidence in the record on this ques-
tion.
54 Prairie State L. & T. Co. v. Doig et al. [Sept. T.
Opinion of the Court.
It is by no means clear, from this testimony, that the com-
pany was, itself, engaged in the erection of the building on
the premises where the derrick was being used. The language
of the witness is somewhat equivocal, and may be said to be
susceptible of more than one meaning. Persons to whom it
was addressed might, without doing any violence to the terms
used, place different constructions upon it. Possibly it might
be understood to mean the company had employed persons
under its immediate direction, as its hired servants, to erect
the building for it. But it seems more rational to construe
the answer of the witness to mean that the building was
being erected by a contractor employed by the company for
that purpose. In that event, the relation of master and ser-
vant would *not exist between the parties. The contractor
would have the entire charge, and the party for whom the
building was being erected would have no right to direct the
laborers in the use of the machinery employed about the work,
either as to its safety or otherwise. The transaction would
assume the character of an independent undertaking on the
part of the contractor, and he alone would be responsible for
the negligent conduct of his employees.
Where the relation of master and servant does not exist,
nor directly that of employer and employee, but the work is
let to a principal contractor to do the labor and furnish the
materials for the erection of a building, the owner is not re-
sponsible for the negligent conduct of the workmen engaged,
in the use of machinery, or for any other negligence on their
part. This rule stands to reason, and is supported by authority.
Scammon v. City of Chicago, 25 111. 434; Hillard v. Richard-
son, 3 Gray, 349; Shearman & Redfield on Negligence, 100.
Considering the doubtful character of the evidence, the
second instruction given for appellees was calculated to preju-
dice the cause of appellant. By it the jury were told they
were "not to presume, in the absence of all evidence on that
point, that the building in question was being put up or
1873.] Huftalin V. MlSNEK. 55
Syllabus.
erected under a contract with Wilson, or any other person or
persons."
In this instruction, the court gives a construction to the
evidence, and assumes there was no testimony on this vital
point in the case. It was the province of the jury to say
what meaning should be given to the language of the witness,
and how his answer should be understood. This they were
not permitted to do. The court having adopted a construc-
tion favorable to appellees, the jury would be inclined to
adopt it, also, and follow the instruction given. Indeed, it
would be reprehensible for them not to do so. It was an
expression of an opinion by the court as to what the wit-
ness intended the jury should understand from his testimony,
and this it had no right to do. They ought to have been left
free to draw their own conclusions from the evidence.
It is insisted fatal errors have intervened in permitting
certain amendments to the record, after the close of the term
at which the trial was had.
It will not be necessary to notice this point, for the reason
the judgment is to be reversed on other grounds, and what-
ever amendments may be necessary, if they have not been
heretofore made, can be made before another trial, and this
cause of error removed.
For the reasons indicated, the judgment is reversed and the
cause remanded. .
Judgment reversed.
David Htjftalin
v.
CORNELIA R. MlSNER.
1. Error — answer must appear if question is assigned for error. Where
the allowing of a certain question to be answered by a witness, is assigned
for error, the answer must be preserved in the record, so that it may be
seen whether it was of prejudice to the party complaining.
56 Huftalin v. Misner. [Sept. T.
Syllabus.
2. Same — error in respect to, obviated. Although, the court may err in
disallowing a question, yet, if the witness afterwards substantially answers
the same, the error will be obviated. :: \;
3. Evidence — question calling for a legal conclusion from a state of facts.
A question to a witness who had previously rented premises, and whose
term had expired, whether he was not in possession at the time of an
expulsion of the plaintiff, is properly excluded, as calling for a legal
conclusion, especially if he had already detailed the facts of the case
in relation to his occupancy.
4. Same — in mitigation of damages. In an action of trespass, to entitle
the defendant to give in evidence, in mitigation of damages, a provocation,
it must have been so recent and immediate as to induce a presumption that
the violence done was committed under the immediate influence of the
feelings of passion excited by it.
5. In an action of trespass for shooting into a dwelling house in the
night time, the defendant can not prove, in mitigation of exemplary dam-
ages, the kidnapping and seduction of his daughter by the plaintiff and
her husband, done nearly one year before, and subsequent attempts, by
the plaintiff's husband, to kidnap the daughter, his attempting to hire
persons to assassinate the defendant, and to poison his well, and the
writing of insulting letters to the defendant's wife, the husband's acts
not being admissible against the wife.
6. The rule in respect to the proof of provocation, in an action for shoot-
ing into the plaintiff's house, is the same as in an action for an assault and
battery. The general rule is, that the defendant can not give in evidence,
in mitigation of damages, the acts and declarations of the plaintiff at a
different time, or any antecedent acts which are not fairly to be considered
as part of the same transaction, however insulting and provoking they
may have been.
7. Married woman — trespasser can not question her rigid to land
acquired through her husband. Where a husband conveys real estate to a
third party, and such party, on the same day, conveys to the wife of his
grantor, whatever may be the rule as to others having rights against the
land, it will be treated as the separate property of the wife as against a
mere trespasser, and he will not be allowed to question her right to sue
for the trespass without her husband.
8. Damages — whether excessive. Where the defendant, in company
with a large number of other men, went, in the night time, to the plain-
tiff's dwelling, and blew horns, and fired guns into the air, and, upon the
plaintiff's husband firing into the crowd, they fired into the house on all
sides, breaking nearly all the glass in the windows, forcing the plain-
tiff, with her children, to take refuge in the cellar, and afterwards took
forcible possession of the house under a certificate of purchase, and
1873.] Huftalin V. MlSNER. 57
Opinion of the Court.
removed the plaintiff's goods into the road: Held, that $1100 damages
could not be regarded as excessive.
9. Certificate of purchase — confers no title or right before expiree
tion of time for redemption. A certificate of the purchase of land under
execution, confers on the holder no title or interest in the land, especially
when the time for redemption has not expired.
Writ of Error to the Court of Common Pleas of the
city of Aurora ; the Hon. Eichard G. Montony, Judge,
presiding.
This was an action of trespass, by Cornelia R. Misner
against David Huftalin. The material facts of the case are
stated in the opinion of the court.
Mr. C. J. Metzner, for the plaintiff in error.
Mr. B. F. Parks, for the defendant in error.
Mr. Justice Sheldon delivered the opinion of the Court :
This was an action of trespass, the declaration containing
two counts: one, for shooting into the house of the plaintiff
balls and shot, in the night time ; the other, for, at a subse-
quent time, forcibly expelling her from her house and farm,
and taking her crops. The plaintiff recovered a verdict and
judgment for $1100.
For the reversal of the judgment errors are assigned, in the
admission and rejection of evidence, in the giving and refus-
ing of instructions, and that the damages are excessive.
As the second count was for the expulsion of the plaintiff,
and converting to defendant's use the crops growing on the
premises, it is claimed to be error that the court allowed a
witness to answer the question how much some grass seed in
the stack was worth. It is enough to say that the record
does not show that the question was answered, hence we can
not see that any prejudice resulted to the defendant from
allowing the question to be answered.
58 Huftalin v. Misnee. [Sept. T.
Opinion of the Court.
The court allowed a witness to state what was the value of
the farm. Whilst that testimony might very properly have
been excluded, its admission is not an error of sufficient grav-
ity to affect the judgment.
A question was put to a witness who composed one of the
party of persons who went along with the defendant, what
they went up to Misner's for; and an objection to the ques-
tion was sustained. But nevertheless, the witness made an-
swer, that they had no design to shoot Misner, or injure his
property or family ; that there was no damage done to his
house or premises prior to his shooting at the boys. Even
if there had been error in disallowing this question, it was i
substantially answered as above, for all purposes beneficial to
the defendant, and this would obviate the error.
The court properly excluded evidence of proceedings in
attachment against the plaintiff, and a certificate of purchase
of the land by the defendant. The mere certificate of pur-
chase gave to the defendant no title or interest in the land,
especially as the time for redemption by the defendant in
execution had not run out.
The witness Wyatt had previously rented the farm of Mrs.
Misner for one year, and he was asked whether he was not in
possession at the time of the alleged expulsion of the plaintiff.
The court excluded the question. The witness did testify to the
facts that his year had expired, and that he had not .moved
anything away ; that he had given Misner and wife possession
of but one room, which they occupied. This was sufficient,
and what the witness should have been confined to — a state-
ment of the facts. Whether the witness was in possession,
was but a legal conclusion from the facts, and the question
was properly enough excluded.
But the principal question upon excluded evidence arises
on the following:
"The defendant, by his counsel, stated to the court that he
proposed to prove that, prior to the alleged shooting, said
William Misner and the plaintiff, under the pretense that the
1873.] Huftalin V. MlSNEE. 59
Opinion of the Court.
plaintiff was sick, and required some one to help her, coaxed
a daughter of the defendant, about fifteen years of age, into
their house, for the purpose of seducing her; that while the
girl was so there, said Misner did seduce her; that he after-
wards took the girl from her father's house, and, by plain-
tiff's assistance, kidnapped her, run away out of this State,
and lived with her some time as man and wife, and then
attempted to induce the girl to become an inmate of a house
of ill fame ; that finally defendant recovered his daughter,
and took her to his home ; that the plaintiff and said Misner
continually attempted to kidnap the girl again, and nearly
succeeded in one or two efforts; that to accomplish their
design, and get defendant out of the way, the said Misner
attempted to hire persons to assassinate the defendant, and
also poison his well; that said Misner wrote insulting letters
to the defendant's wife; that these facts came to the knowl-
edge of the defendant a short time before the alleged shoot-
ing ; that said Misner was, at the time, living in an open
state of adultery, with Johnny and Molly, with the consent
of his wife."
The court held all such facts incompetent, and sustained
the objection of the plaintiff to their introduction in evidence.
It is urged that the testimony was admissible in mitiga-
tion of exemplary damages. We do not perceive why the
same rule should not apply here as in an action for an assault
and battery, where it is laid down as the general rule, that
the defendant can not give in evidence, in mitigation of dam-
ages, the acts and declarations of the plaintiff at a different
time, or any antecedent acts which are not fairly to be con-
sidered as part of the same transaction, though they may
have been ever so insulting or provoking. The provocation,
to entitle it to be given in evidence in mitigation of damages,
must be so recent and immediate as to induce a presumption
that the violence done was committed under the immediate
influence of the feelings and passions excited by it. Sedg-
60 Huftalin v. Misner. [Sept. T.
Opinion of the Court.
wick on Dam. 563; Lee v. Woolsey, 19 Johns. 317; Avery v.
Ray, 1 Mass. 12; Tyson v. Booth, 100 Mass. 260.
Some of the matters attempted to be proved were the sole
acts of the husband, and, manifestly, would not be admissi-
ble against the wife. The main alleged grievance, that of
the asserted seduction, kidnapping and abduction of the
daughter, we are satisfied, from what appears in the case,
must have occurred and come to the defendant's knowledge
more than a year previously, although the statement in the
offer is, that the facts came to the knowledge of the defend-
ant a short'time before. This personal grievance of the defend-
ant here attempted to be proved, was of a date so remote, that
whatever might have been done under its influence, could not
have been from the impulse of sudden passion, but must
have been an act of deliberate revenge. To this, the law
affords no countenance. Besides, it was in evidence that the
defendant and his coadjutors did not go to the plaintiff's
dwelling for the purpose of committing any violence, and that
the acts of violence which they did commit were provoked
by their having been first fired upon from plaintiff's house.
The provocation for the violence was thus here shown.
Without committing ourselves to the full strictness of the
rule held by the above authorities, where the proof offered is
merely in mitigation of exemplary damages, we find, in this
case, no error in the exclusion of the evidence which was here
offered.
The objections to the instructions given and refused, respect-
principally the plaintiff's right to sue.
It was in proof, that William Misner, the husband of the
plaintiff, conveyed the premises in question to one Evans,
and that the latter, on the same day, conveyed the same to
the plaintiff. The position taken by appellant's counsel is,
that this property was not acquired by the wife from a per-
son other than her husband, but that it was acquired from
her husband, and therefore, is not her sole and separate
property under the law of 1861, in relation to married
1873.] HUFTALIN V. MlSNEE. 61
Opinion of the Court.
women; but that the rights of the husband are as at common
law, that he has a life estate in the land, that the possession
was in him, and the wife not entitled to bring the suit in her
own name. But the wife acquired the land by conveyance
from Evans, a person other than her husband; and however
it may be as to others having rights with respect to the land,
we think that, as against a mere trespasser, the transaction is
to be taken as it appears to be from the conveyance, and that
a wrongdoer is not to be admitted to show it to be otherwise.
This view substantially disposes of the questions arising upon
instructions, with the exception of the tenth one, upon the
subject of exemplary damages, and, in view of the evidence,
we discover no objection to that.
As respects the question of the damages being excessive,
the case made by the proof was this: The defendant,
in company with twenty-eight or twenty-nine other men,
went in the night time to the plaintiffs dwelling house, in
which she was residing with her husband and four small
children. After their making sundry demonstrations by the
blowing of horns, and firing guns into the air, the husband
of the plaintiff fired two shots at the crowd, one hitting
a boy that was among them. Thereupon the crowd fired
into the house, on all sides of it, some twenty-two bullets,
and a large quantity of shot besides, badly shattering the
house, in the language of the witnesses, with balls and shot,
hardly a whole pane of glass being left, the plaintiff and her
children being forced to take refuge in the cellar.
Witnesses on one side estimated the damage to the house
at |150 to $200, on the other side at $10 to $15.
As to the second trespass, which occurred more than a year
afterward, the term of Wyatt, a tenant of the plaintiff, had
expired on the 29th of August, 1871, and on the 1st of Sep-
tember, which was Saturday, the plaintiff went and saw Wyatt,
and told him she wanted possession of the farm. He assented
thereto. She took her goods and things there, and Wyatt
assisted in carrying them up stairs. On the 3d of September,
62 McWilliams et al. v. Morgan. [Sept. T.
Syllabus.
which was Monday, she went again to the house, and found
the defendant in possession, and her goods and things were
in the road. Defendant has had possession ever since.
The attack upon the dwelling house was a high-handed
invasion of the sanctity of a private habitation, in the night
time, by an armed mob. It was a contemptuous trampling
upon law, and a defiant assertion of the supremacy of brute
force.
The jury did not too severely mark the enormous character
of the wrong. Their verdict was but a proper vindication of
outraged law. As long as, in addition to compensatory
damages, verdicts for example's sake are allowable, this one,
as regards amount, should not, in our view, be disturbed.
The judgment will be affirmed.
Judgment affirmed.
David McWilliams et al.
Richard P. Morgan, Jr.
1. Measure of damages — in action on appeal bond. Where the condi-
tion of an appeal bond, given on appeal from an order dissolving an
injunction restraining the use, etc., of certain real estate, does not so pro-
vide, the rental value of the premises pending the appeal can not be re-
covered in an action on the bond.
2. If the condition of the bond had been to pay all damages, without
restricting them to those for which judgment is rendered, or may be ren-
dered, it might be shown that the rents were fairly within the meaning
of the language used, and they might be recovered in a suit on the bond.
3. Appeal bond — conditions may be required by the court allowing appeal.
Under the statute of 1865, relating to appeals, the court, in allowing an
appeal from an order dissolving an injunction restraining a party from
the use of real estate, may properly require the appeal bond to have a
condition for the payment of the rental value of the land, as well as costs
and expenses of the suit, in case of an affirmance.
1873.] Mc Williams et ah v. Morgan. 63
Opinion of the Court.
Appeal from the Circuit Court of Livingston county ; the
Hon. Chaeles H. Wood, Judge, presiding.
This was an action of debt, by Richard P. Morgan, Jr.,
against David McWilliams and James H. Hagerty, upon an
appeal bond. The opinion of the court contains a sufficient
statement of the case.
Mr. L. E. Payson, for the appellants.
Mr. H. Gardner, Jr., and Messrs. H. & J. D. Spencer,
for the appellee.
Mr. Justice Scholfield delivered the opinion of the
Court :
We deem it necessary to notice but a single point in this
case : Appellants sued out a temporary injunction against
appellee, enjoining him from using, etc., certain real estate.
The court below, upon hearing, rendered a decree dissolving
the injunction, and from this decree appellants appealed to
this court, and for that purpose executed the bond upon
which this suit is brought. The decree of the court below
was here affirmed, but no order or judgment was rendered
against appellants, except that of affirmance and the payment
of costs.
Upon the trial of the present case in the court below, evi-
dence was given and judgment rendered, against appellants'
objections, for the rental value of the real estate, the use of
which was enjoined, pending the appeal. This, we think,
was erroneous.
The statute in force when the bond was executed is as
follows: "Appeals shall be allowed to the Supreme Court
from all decrees, judgments and orders of inferior courts
from which writs of error might be lawfully prosecuted ; and
in granting appeals, inferior courts shall direct the condition
of appeal bonds, with reference to the character of the decree,
j udgment or order appealed from." Laws of 1865, sec. 3.
That it would, under this statute, have been competent for
64 McWilliams et al. v. Morgan. [Sept. T.
Opinion of the Court.
the court below, in allowing the appeal, to have required that
the bond should be given to secure the rental value of the
real estate, as well as the costs and expenses of the suit, is
clear; but it is equally clear that this was not done. The
condition of the bond is :
"Now, if said McWilliams and Hagerty shall duly prosecute
said appeal, and shall pay the amount of said judgment,
costs, interest and damages rendered, and to be rendered,
against them, in case said decree shall be affirmed in said
Supreme Court, then this obligation to be void," etc.
No judgment was rendered, either in the circuit court or in
this court, that the appellee recover, as a part of his damages,
the rental value of the real estate ; and, unless such damages
were so "rendered or to be rendered against them" in case the
decree was affirmed, the obligors of the bond are not bound
for their payment. Had the condition been that the obli-
gors should pay "all damages," without restricting or qual-
ifying the words, as was done, it might be that it could have
been shown that the rents were fairly within the meaning of
the language used, and that appellee could, consequently,
recover therefor in a suit on the bond. It is, however,
unnecessary to speculate upon the subject. The court below
had ample power to require the condition of the bond to be
in such form as, in its judgment, would subserve the interests
of all the parties with reference to the subject and character
of the pending litigation; and, whether it was thought that
the injunction bond already executed would sufficiently
protect the rights of the appellees, or that the condition
of the property was such that no loss could result from the
temporary deprivation of its use incurred by the appeal, is
immaterial. We have to deal only with the bond as it is ;
and we think its terms are not broad enough to authorize a
recovery for the rental value of the property enjoined, as was
held by the court below.
The judgment must therefore be reversed, and the cause
remanded.
Judgment reversed.
1873.] Andrews v. Knox County. 65
Syllabus.
Lewis Andeews
v.
The Board of Supervisors of Knox County.
1. Judicial notice — of matters relating to organization of counties.
This court will take judicial notice of the result of an election on the
question of the removal of a county seat, as a fact connected with the
organization of counties, where the question is drawn in issue collater-
ally.
2. Contempt — must be judicially established. To deprive a party of a
standing in court for any purpose, for contempt in disobeying an order
or injunction of the court, if such is the law, there must first be an adju-
dication finding him guilty of such contempt.
3. Same — what constitutes a contempt. Where the board of supervisors
of a county are enjoined from building a county jail at the county seat,
the receiving of bids for the work, conditioned upon the dissolution of
the injunction, and the awarding of the contract to build the same, to
take effect only upon the dissolution of the injunction, is not such a
disobedience of the injunction as to place the board of supervisors in
contempt.
4. Board op supervisors — duty and powers in respect to court house
and jail. It is made the imperative duty of the board of supervisors to
build, as often as may be necessary, court houses and jails, and cause the
same to be repaired. The time when, the style, capacity and cost of such
erections, are wholly committed to them, and in the absence of fraud, cor-
ruption or unfair dealing, their discretion can not be controlled by any
judicial tribunal. The board are the exclusive judges of the necessity
of erecting a new jail, and are amenable only to the people electing them.
5. Injunction — to restrain supervisors from providing a suitable jail.
In the absence of any charge of fraud, corruption or dishonesty in a
board of supervisors, in the exercise of the discretion vested in them in
respect to providing a suitable jail for their county, a court has no juris-
diction to order the issue of an injunction to prevent their action, and
therefore it will be no contempt to disobey such injunction.
6. Chancery — sworn answer, when oath is waived. Where an answer
under oath to a bill in chancery is waived, if it is sworn to it will not
thereby derive any efficacy from the oath, but it may be used as an affida-
vit in support of a motion to dissolve an injunction.
Appeal, from the Circuit Court of Peoria county; the
Hon. Henry B. Hopkins, Judge, presiding.
5— 70th III.
66 Andrews v. Knox County. [Sept. T.
Opinion of the Court.
Mr. S. M. Howard, for the appellant.
Messrs. Williams, McKenzie & Calkins, for the appellee.
Mr. Chief Justice Breese delivered the opinion of the
Court :
This is an appeal from an order of the judge of the Peo-
ria circuit court made in vacation, dissolving an injunction.
No point is made upon the regularity of the proceedings, but
the case is presented and argued upon its merits.
Appellant had filed his bill in chancery in the Knox circuit
court for an injunction to restrain the board of supervisors of
that county from building a jail at Galesburg, the seat of
justice of that county. Appellant represented himself as a
tax-payer on a large amount of property in Knox county,
and denied the necessity for any expenditure of money for
such purpose, alleging that the jail at Knoxville, five miles
distant, the former seat of justice, was amply sufficient for all
county purposes, and easy of access by a good public road and
by railroad. Appellant, in his bill, reviews the proceedings
in Knox county, by which the seat of justice was removed
from Knoxville to Galesburg, and insists that a majority of
the people of the county are opposed to the removal, and that
it would so appear by the result of an election soon to take
place. This proceeding has the appearance of an appeal from
the decision of this court, rendered at January term, 1873,
establishing the county seat at Galesburg by a majority of
the votes of the people, in conformity with an act of the Gen-
eral Assembly, passed for such purpose, and refusing, before
this bill was filed, a petition for a rehearing in the cause pre-
sented by the advocates of Knoxville. That question must
be considered, for the present at least, at rest, and this court
must recognize Galesburg as the seat of justice, or county
seat, of Knox county, until some change shall be lawfully
made.
1873.] Andrews v. Knox County. 67
Opinion of the Court.
Owing to a supposed personal interest of the judge of the
Knox circuit court, the application for an injunction was
made to the judge of the eighth judicial circuit, without any
notice having been given to the county authorities, who, on
the ex parte statements of appellant, granted a temporary in-
junction against the board of supervisors, as prayed in the
bill, until the court should make an order to the contrary.
In the bill it was alleged the petition for a rehearing in
the Supreme Court was then pending when the bill was filed.
This is admitted, on the record, to be a misstatement, and we
can not but think this allegation of the bill must have had
great influence with the learned judge to grant the injunction,
and one so sweeping as this is. The election alluded to in
the bill, which was to take place in the following November,
was an election again to test the strength of parties on the
question of removal of the county seat, on which occasion it
was decided, by a large majority, that the county seat should
be permanently established at the city of Galesburg, of
which this court will take judicial notice as a fact connected
with the organization of counties.
It appears, when the writ of injunction was served, the
defendants therein at once gave notice of a motion to dissolve
it, and in due time prepared an answer, which was sworn to
by one of the supervisors, before a notary public, on the 18th
of March, the writ having been served on the 13th of that
month.
At the March term of the Henderson circuit court, a mo-
tion was made by the board of supervisors to dissolve the
injunction, notice having been duly given to the complainant
in the bill. At this term, the complainant, by his solicitor,
appeared and presented the petition of complainant for a
change of venue, which was granted, and the cause sent to
the Peoria circuit court.
In that court, at the May term following, complainant
entered his motion to strike the answer of the defendants
from the files, for several reasons, the first of which was, that
QS Andeews v. Knox County. [Sept. T.
Opinion of the Court.
defendants were in contempt of the court issuing the in-
junction, and had not purged themselves from the con-
tempt, and were in contempt of the Peoria circuit court;
second, that the board of supervisors had acted in violation
of the injunction after service upon them in their corporate
capacity, and upon each individual member thereof, and have
not purged themselves from the contempt; third, that the
answer was not signed by the chief officer of the board, nor
has the seal of the corporation been affixed; fourth, that the
answer purports to be a joint and several answer, and there
are not several defendants to the bill, but only a single de-
fendant— the board of supervisors; fifth, that the answer is
improperly signed by W. S. Gale, as a defendant to said bill,
when, in fact, he is not a defendant; sixth, that defendants are
not in a position to ask or claim a hearing of the motion to
dissolve the injunction, for the reason that they have violated
the injunction, and are in contempt of court; seventh, that no
motion for a dissolution is before the court; no notice has
been given of the application; and last, the answer is scan-
dalous, impertinent, etc.
It appears that appellant, on the 25th of March, had filed,
in the Peoria circuit court, an affidavit, stating, in substance,
the application for the injunction, the granting the same, its
service upon the board of supervisors and each member
thereof on the 13th of March, and then charged that the
above named supervisors " proceeded to and did violate and
disobey the injunction order after the writ of injunction had
been served upon them, and had due notice of the same, and
he prayed an attachment, and that they be compelled to
answer the same, and submitted his motion therefor."
It does not appear that the court took any order on the
motion to strike the answer of defendants from the files, or
upon the motion for an attachment, but held that complainant
had received sufficient notice of the motion to dissolve the
injunction, and, on hearing, entered an order dissolving the
same.
1873.] Andrews v. Knox County. 69
Opinion of the Court.
Against the defendant's objections, an appeal was allowed,
which is the case we are now considering.
It may be true, where a party has been adjudged as in con-
tempt in disobeying an order of a court of competent juris-
diction, he can have no standing in the court for any purpose.
Here, there has been no adjudication that the defendants were
in contempt, by violating the restraining order of the judge.
It appears, after the board was served with the writ of
injunction, and on the day of its service, the board passed a
resolution to let the contract for building a jail, upon the dis-
solution of the injunction, and a resolution to appoint a com-
mittee to examine bids offered, and to report, for the consid-
eration of the board, the most favorable bid, with contract
and bond, all to be conditioned upon the dissolution of the
injunction.
A committee was appointed, who reported on certain bids,
one of the bidders not willing to await the decision on the
injunction, and the other, H. H. Pierce, was. The board also
passed a resolution that the committee appointed to prepare
plans for the jail, be authorized to close the contract with,
and obtain bonds from, Hiram H. Pierce, on the terms of his
bid, provided the injunction obtained against the board shall
be dissolved within two weeks from this date.
This is all the disobedience of the writ of injunction shown
by this record, and we can not think it is of such a character
as to place the board of supervisors in contempt of a judicial
order, even if the judge had power to grant the order.
Among the duties imposed by law upon the board of super-
visors, and in imperative language, is, to build, as often as
may be necessary, court houses and jails, or cause the same
to be repaired, in their respective counties, at the expense of
such counties.
About this they have no discretion — "it shall be the duty."
The time when, the style, capacity and cost of such erections
are wholly committed to them, with no responsibility to any
power save the people. The board, acting in good faith in
70 Andrews v. Knox County. [Sept. T.
Opinion of the Court.
the discharge of this duty, are amenable to no authority ex-
cept that from which they derive their own powers. No fraud
or unfair dealing is charged against this board in'their attempt
to discharge an imperative duty, but the whole case rests upon
the allegation, that the old jail, at the former county seat,
five miles distant, is sufficient to keep prisoners. This is a
question exclusively cognizable by the board, and but few
persons could be found who would disagree with them, or
attempt to thwart their purposes, when the testimony relied
on to support this bill shows that, shortly before it was filed,
one prisoner, a Swede, escaped; and, for safety, as the deputy
sheriff, Patton, testifies, a man charged with murder, and
afterwards convicted and executed, was removed by him to
the jail of Peoria county.
But all this is immaterial. The board of supervisors were
constituted by law the only tribunal to act in this matter, and
a failure to act, to perform the duty imposed, would have been
a violation of their official oaths. Galesburg had been pro-
nounced by this court the lawful seat of justice of Knox
county, and it became the duty of the supervisors to see to it,
that a sufficient court house and jail were provided and kept
in repair. No other tribunal can lawfully, no fraud, corrup-
tion or dishonesty being charged, interfere to arrest their
action. It is a question with which a court of chancery has
nothing to do, and the act of the judge in issuing the restrain-
ing order was without competent authority. This court, in
Sherlock et al. v. Winnetka, 59 111. 389, said : " There are some
acts which a municipal corporation, while acting within the
limits of its charter, may do, without being subject to the
supervision of any court. Such acts are those done under its
legislative and discretionary powers."
Such is the structure of our governmental system and its
organization in this State, that one authority must not trench
upon that of another.
In looking at the bill of complaint, it is seen the principal,
if not the only, grounds assumed for equitable interposition,
1873.] Andrews v. Knox County. 71
Opinion of the Court.
are, the asserted fact that the majority of the people of Knox
county were opposed to the removal of the county seat, a fact
which the records of this court show to have no existence,
and the sufficiency of the old jail at Knoxville. However
much the resolve of the board of supervisors may, if carried
into effect, annoy any individual tax-payer of the county, he,
having no more than a general interest in having it wisely
and judiciously carried out, has no absolute right to any
specific regulation to that effect, but must be bound by the
judgment of the board as to what the public interest requires.
These allegations, and all of them contained in the bill, were
not, in our judgment, sufficient to confer jurisdiction upon
the judge granting the injunction. This being so, there was
no contempt in disobeying it, even if the resolutions adopted
by the board, after service of the writ, should be held a vio-
lation of the injunction, which we are not willing to concede.
It will be perceived, in the several resolutions adopted by
the board, respect is shown to the injunction, and nothing
done was to be considered as binding, unless the injunction
should be dissolved. The county was not committed to any
expenditure of money, by anything the board did.
Admitting all the facts to be true, as stated in the bill, and
the motion to dissolve the injunction does that, we see nothing
to give chancery jurisdiction.
It may be remarked, an answer under oath was waived.
The answer put in by Gale, on behalf of defendants, was
under oath, and, if an answer in the case, it derives no effi-
cacy from the oath. But it may be used as an affidavit in sup-
port of the motion to dissolve.
Looking at the case in all its aspects, appellant has shown
no grounds for equitable interposition. Not a solitary allega-
tion in the bill of complaint calls for such interposition. It
is not alleged the board had assumed a power they did not
possess, or were going beyond their authority in the premises,
72 Patton et al. v. Campbell. [Sept. T.
Syllabus.
or that they were exercising their powers in an arbitrary,
oppressive, unjust or corrupt manner.
We see no ground of complaint, and must affirm the decree.
Decree affirmed.
Mr. Justice Craig took no part in the decision of this
cause.
William Patton et al.
v.
George W. Campbell.
1. Chancery jurisdiction — on ground of accident. It is not every case
of accident which will justify the interposition of a court of equity. The
jurisdiction will be maintained only where a court of law can not grant
equitable relief, and where the party has a conscientious title to relief.
2. Same — on loss of sealed instrument. In the case of lost instruments
under seal, equity will take jurisdiction, for the reason that, until recentby,
no remedy could be had on such instruments in a court of law, because
no profert could be made.
3. Rescission — of sale for fraud. If a party, knowing himself to be
insolvent or in failing circumstances, by means of fraudulent pretenses
or representations, purchases goods, with the design to cheat the vendor
out of the same, the latter may rescind the sale for fraud, and recover the
goods by replevin, if they have not passed into the hands of innocent pur-
chasers.
4. Where the only untrue representations made by a purchaser of
goods were, that he had purchased and could purchase of a certain firm
on four months' credit, and thereby obtained one more month's credit,
and it did not appear that he was insolvent at the time, or in failing cir-
cumstances, though within two months afterwards he became an invol
untary bankrupt: Held, that the vendor had no right to rescind the sale
and recover back the goods in replevin.
Appeal from the Superior Court of Cook county; the
Hon. Joseph E. Gary, Judge, presiding.
Messrs. Bentley, Swett & Quigg, for the appellants.
Messrs. Waite & Clarke, for the appellee.
1873.] Patton et al. v. Campbell. 73
Opinion of the Court.
Mr. Justice Craig delivered the opinion of the Court :
This was a bill in chancery, filed in the Superior Court of
Cook county, by George W. Campbell, as assignee in bank-
ruptcy of the late firm of Durham & Wood, against William
Patton and others, to recover the value of certain goods which
had been replevied by Patton & Co. from Durham & Wood.
It appears from the record that on or about the 20th of
October, 1870, Patton & Co., of New York, sold Durham &
Wood, of Chicago, a bill of goods, amounting to $1600, on a
credit of four months. About the first of November, after
the sale, Durham & Wood failed, and Patton & Co. com-
menced an action of replevin to recover the goods they had
sold. A replevin bond in the penal sum of $1000, in the
usual form, was filed with the papers in the action, and $800
or $900 worth of the goods were replevied.
In the fire of October 8th and 9th, 1871, the papers in the
case, including the bond, were destroyed. Subsequently the
action was dismissed.
The defendants answered the bill, to which replication was
filed, the cause was heard on the proofs taken, and decree ren-
dered in favor of complainants for $850. •
The defendants bring the cause to this court, and seek to
reverse the decree on two grounds:
First. For the reason a court of chancery has no jurisdic-
tion, the remedy of complainants being complete at law.
Second. The purchase of goods from Patton & Co., by
Durham & Wood, was fraudulent, and Patton & Co., upon
discovery of the fraud, had the right to rescind the sale and
replevy the property.
The questions will be considered in the order in which they
are raised.
The bill in this case is filed to recover upon an instrument
under seal, which had been destroyed.
The jurisdiction of a court of equity arising from accident
is a very old head, in equity, and probably coeval with its
74 Patton et al. v. Campbell. [Sept. T.
Opinion of the Court.
existence. But it is not every case of accident which will
justify the interposition of a court of equity. The jurisdic-
tion will be maintained only when a court of law can not
grant suitable relief} and where the party has a conscientious
title to relief. 1 Story Eq. Jur., sec. 79.
In case, however, of lost instruments under seal, equity
takes jurisdiction, on the ground that, until a recent period,
it was the settled doctrine that there was no remedy on a lost
bond in a court of common law, because there could be no
profert of the instrument, without which the declaration
would be defective. The jurisdiction having been assumed
and exercised on this ground, it is still retained and upheld.
1 Story Eq. Jur., sec. 81 ; Walmsley v. Child, 1 "Vesey, Sen.,
341 ; Fisher v. Sievres, 65 111. 99.
Under the allegations in the bill in this cause, we think it
is well settled that a court of equity had jurisdiction.
The remaining question in the case is, were the goods pur-
chased under such circumstances as gave the appellants the
right of rescission on the ground of fraud, or was there such a
fraud practiced that the title to the property did not pass to
Durham & Wood?
The evidence shows that Hart, who was a traveling agent
for appellants, called on Durham & Wood, in Chicago, to
sell them goods. They examined his samples and told him they
wanted to make a large order, and wanted to buy on four
months' time. Hart told them, Patton & Co. hardly ever vary
from three months' time. Durham remarked, he had bought
and could buy of A. T. Stewart & Co., of New York, on four
months' time. On this statement, Hart sold the goods on
four months' time.
It turned out, on investigation, that Durham & Wood had
only bought two bills of goods of Stewart & Co., and they
were sold on thirty days' credit.
While it is true, the statement made by Durham, that he
had bought and could buy goods of Stewart & Co. on four
months' time, was false, yet, it, does not appear that this
1873.] Patton et al. v. Campbell. 75
Opinion of the Court.
statement induced Hart to sell the goods ; it only had the
effect to cause him to give one month longer credit on the
goods than he otherwise would, which did not, in this case,
in anywise affect the rights of appellants, for the reason that
the failure occurred and the goods were replevied within less
than two months after the sale.
It appears, from the evidence, that Hart made no objection
to sell the goods on three months' time; he neither asked nor
required any representations from Durham, as to the stand-
ing or responsibility of the firm, to induce him to sell the
goods on a credit of three months. At the time the goods
were purchased, it does not appear that Durham & Wood
were in failing circumstances, insolvent, or in any manner
pressed by their creditors; for aught that appears they were
at that time solvent, and responsible for all their contracts.
Neither does it appear that they made any false represen-
tations in regard to what they were worth, what property they
owned, or the amount of debts they had contracted.
It is not shown that the goods were bought with the intent
not to pay for them, or with a view to make an assignment.
We understand the rule to be, that if a party, knowing him-
self to be insolvent, or in failing circumstances, by means
of fraudulent pretenses or representations, purchases goods
with the intention not to pay for them, but with the design
to cheat the vendor out of his goods, such facts would war-
rant the vendor in rescinding the contract for fraud, and
would justify him in recovering possession of the property by
replevin, where the goods had not in good faith passed into
the hands of third parties. Henshaw v. Bryant et al. 4 Scam.
97.
But the case under consideration does not come within this
rule.
There is no evidence in this record to show that the goods
were bought with any impure or wrong motives.
It is true that, some two months after the purchase of the
goods, the parties went into bankruptcy, but this was invol-
Barnett v. Wolf. [Sept. T.
Syllabus.
untary, and does not, of itself, show the condition of the firm
at the time the goods were bought.
Upon a careful examination of the whole record, we are
satisfied the decree of the court below was correct, and it will
be affirmed.
Decree affirmed.
Anzaletta Barkett
V.
Patrick Wolf.
1. Jukisdiction— -finding in respect to, can not be contradicted by parol
in a collateral proceeding. Where a court finds, in its decree, that legal
and proper notice has been given, this can not be contradicted in a col-
lateral proceeding by evidence dehors the record.
2. Same— finding as to personal service — how impeached. Where per-
sonal service is claimed, which can only be shown by the officer's return,
if the return contradicts the finding of the court, it will overcome the pre-
sumption arising from the finding, and prove a want of jurisdiction, even
in a collateral proceeding.
3. Same— parol evidence to show. Where the service is by summons,
and it is insufficient to confer jurisdiction, parol evidence can not be
heard to prove or aid it ; but where the service is by publication, it may
be received to prove the due publication of the notice.
4. Same — sufficiency of evidence to disprove finding in respect to. As the
statute has not made the publisher's certificate the only evidence of the
due publication of notice, the fact that such certificate, filed in a case, and
a part of the record, is wholly insufficient to prove a proper publication,
will not overcome the finding of the court that legal notice was given.
5. Same — presumption as to jurisdiction of county court. The county
court, though of limited jurisdiction, is not, strictly speaking, one of
inferior jurisdiction, and, when acting within the sphere of its jurisdic-
tion, as liberal intendments will be indulged in favor of its judgments
and decrees as those of the circuit court.
6. Evidence— ta impeach record. The record of a court can never be
contradicted, varied or explained by evidence outside the record itself;
but one part may be contradicted by another, or limited, qualified or
explained.
1873.] Barnett v. Wolf. 77
Opinion of the Court.
7. Decree — can not be impeached collaterally for error. If the court
has acquired jurisdiction in an application by an administrator to sell
real estate, the failure to appoint a guardian ad litem for infant defendants,
is but an error, which can not be urged in a collateral proceeding involv-
ing the title acquired under the decree.
Appeal from the Circuit Court of La Salle county; the
Hon. Edwin S. Leland, Judge, presiding.
This was an action of ejectment, brought by Anzaletta
Barnett, against Patrick Wolf, for the recovery of the north-
west quarter of section 35, township 32 north, range 4 east
of the third principal meridian, in La Salle county. The
leading facts of the case will appear in the opinion of the
court. J
Messrs. Eldridge & Lewis, for the appellant.
Messrs. Bickford, Bowen & Maloney, for the appellee.
Mr. Justice Walker delivered the opinion of the Court :
This was ejectment, for the recovery of a quarter section
of land, in the La Salle circuit court. On the trial below,
plaintiff traced title from her grandfather, the patentee,
through her mother, to herself; and to rebut her prima facie
title, appellee introduced a decree of the county court of
La Salle county licensing the executor of John Palmer, the
grandfather of appellant, to sell this land for the payment
of debts ; a deed from the executor, Wm. C. Richardson, on
a sale under the decree, to Edward C. Henshaw, with an
order of the court approving the sale; also mesne convey-
ances, so as to complete a regular chain of title from Hen-
shaw to appellee.
The principal controversy in the case grows out of the sale
of the land by the executor to Henshaw. If it is so far regu-
lar as to pass the title, then appellant was divested of title,
and has no right to recover; and that depends upon whether
the county court acquired jurisdiction of the subject matter,
78 Barnett v. Wolf. [Sept. T.
Opinion of the Court.
and the person of the owner, as nothing is perceived in the
subsequent proceedings which would prevent the title from
passing to the grantee of the executor.
That the county court had jurisdiction of the subject mat-
ter, is contested. The notice of the application for the sale
of the land describes a different quarter from that in contro-
versy. The true description of the land is, the north-west
quarter of section 35, township 32 north, range 4 east of the
third principal meridian, and the land is so described in the
petition, executor's deed and report, etc., whilst it is described
in the published notice, on file in the county court, of the
application for leave to sell, as the north-west quarter of sec-
tion 32, in the same township and range. Thus it will be
seen that this notice of application for leave to sell did not
describe the land named in the petition and decree.
The decree of the county court finds that the legal and
proper notice of the application to sell the north-west quarter
of section 35 was duly made in the " Ottawa Republican,"
and that it was a newspaper of general circulation : but to
overcome this finding, appellant introduced what are claimed
to be the files of that paper, from which it appeared that no
other notice was given of application for leave to sell this
land than that filed in the case, describing the quarter as
being on section 32 ; and the present publisher of the paper
was called, and testified that the volume offered was turned
over to him, when he purchased the printing office, as the
bound volume of the files of the " Ottawa Republican" for
the years 1854 and 1855, and from which the files of the
papers were read.
The question whether the solemn finding of the court, as
to its jurisdiction, can be contradicted by evidence outside
of the record, is presented in this case, and upon its determi-
nation depends the rights of the parties. In cases of sum-
mons and personal service, and where the proof of service
can only be shown by the return of the officer, it has been
held that, if the return contradicted the finding of the court,
1873.] Barnett v. Wolf. 79
Opinion of the Court.
it would overcome the finding, and prove the want of juris-
diction, even in a collateral proceeding. In the case of Bots-
ford v. 0' Conner, 57 111. 72, it was held that, where the ser-
vice is by summons, and it is insufficient to confer jurisdiction,
parol evidence can not be heard to prove or aid it, but that it
is otherwise where the service is by publication, when parol
evidence may be received to prove that the notice was pub-
lished. Where service is by summons, the only mode the
court has to determine whether it has acquired jurisdiction,
is by the return of the officer on the summons. The court
can not hear parol evidence proving admissions of the defend-
ant that he was served, but must be governed by the return
of the officer. If the return is defective, when the service is
good, the court should require the officer to amend his return
so as to conform to the facts. If the service itself was defec-
tive, so that the return can not be amended and state the
truth, the court should refuse to proceed in the case until
there is new and proper service, or until an appearance is
entered, giving the court jurisdiction of the person of the
defendant.
The statute has, however, provided that, where the service
is by publication, a proper certificate of the printer shall be
sufficient evidence of service to confer jurisdiction of the
person of the defendant and of the subject matter of the suit;
but the statute has not declared that this shall be the only
means of proving the publication. If such a publication
were properly made, the plaintiff might, no doubt, produce
the requisite number of newspapers containing the notice,
and prove by parol that they were a part of the weekly issue
of the paper; were duly published and distributed, and that
the entire issue and circulation for each week contained the
same notice. This would have been the common law mode
of making the proofs, had not the statute provided that it
might be done by the certificate of the printer ; and not be-
ing prohibited, the proof by certificate will be regarded as
cumulative to the common law mode; and when we find that
80 Barnett v. Wolf. [Sept. T.
Opinion of the Court.
the court has solemnly adjudicated, and found that it had
jurisdiction in a case, where it was acquired by publication,
we must presume that the court had sufficient evidence to
warrant the judicial finding.
Nor will the fact that the certificate of the printer filed
with the papers, being a part of the record, although wholly
insufficient to prove that there was a proper publication, over-
come the finding of the court. It will, in such a case, be pre-
sumed that the court heard and acted on other and sufficient
evidence to sustain the finding. Such a case is essentially
different from a service by summons, as in that case it can
only be proved by the written return of the officer. There
being, in such a case, but the one mode of service and its
proofs, no presumptions can be indulged to contradict the
return, whilst the service by publication may be proved in
two different modes; and when the certificate is such that the
court can not see from it that there is jurisdiction of either
the subject or of the person, we will, where the court has found
that it had acquired jurisdiction, presume that parol evidence
was heard and acted upon by the court. The presumption,
then, is, in this case, that the county court had jurisdiction
of the subject matter, and of the person of appellant, and that
the finding of that fact was warranted by the evidence there
heard.
Such is the presumption in favor of all judgments of courts
of superior or general jurisdiction in all collateral proceed-
ings; and in the case of Propst v. Meadows, 13 111. 157, it was
said that the county court, although a court of limited, is not,
strictly speaking, a court of inferior jurisdiction ; that it is
a court of record, and has a general jurisdiction, of unlim-
ited extent, over a certain class of subjects, and, when acting
within that sphere, its jurisdiction is as general as that of the
circuit court; and when acting within the limits of its juris-
diction, as liberal intendments will be indulged in favor of
its judgments and decrees as would be extended to those of
the circuit court; and the same rule was announced in the
1873.] Barnett v. Wolf. 81
Opinion of the Court.
case of Von Kettler v. Johnson, 57 111. 109, and this must be
regarded as the settled law of this court.
It, then, follows that this decree must be entitled to the
same force and the same presumptions as if it had been ren-
dered by the circuit court, which is of unlimited, original
jurisdiction.
It is a fundamental rule of evidence that the record of a
court can never be contradicted, varied or explained by evi-
dence beyond or outside of the record itself. The record in
one part may contradict another part, or one part may limit;
qualify or explain another, but evidence dehors the record
will never be received for the purpose. To permit such evi-
dence, would render records of no avail, and would render
judicial sentences of but little protection, and would unsettle
rights and lead to unprecedented uncertainty and confusion.
Hence, all records must be tried and construed by themselves.
Whilst the court may, as we have seen, hear evidence in cases
of service by publication, either by the certificate of the
printer or by witnesses, to prove that the court has jurisdic-
tion and may rightfully proceed to hear and adjudicate in the
case, it would be unprecedented, where the record failed to
show jurisdiction, to permit oral proof, or, for that matter,
any other kind of evidence, to show, in a collateral proceed-
ing, that the court, in fact, did have jurisdiction. No such
precedent can be found, and if it could, it would not be fol-
lowed.
The reasons for not permitting proof that the court did
have jurisdiction, apply, with all their force, to prevent proof
from being heard to contradict the finding of the court that
it had jurisdiction. That such a record, in a collateral pro-
ceeding, imports verity, and can not be contradicted, is too
well established, by uniform practice and precedent, to be
questioned. The evidence, then, of the publisher of the paper,
and the files of the newspaper introduced, were improperly
received by the court; but as the case was tried by the court
without a jury, we will presume that he did not consider it.
6 — 70th III.
82 Baenett v. Wolf. [Sept. T.
Opinion of the Court.
Such evidence, although admitted without objection, could
not contradict the decree of the county court, because every
presumption would be indulged in favor of the integrity of
the decree. There is no evidence that the papers bound in
the volume were the same as others of the same issue. We
know, as a matter of fact, that the press is frequently stopped,
and changes made in the form, and that the papers struck
before the change are unlike those struck afterwards. Such
a change in this notice, in the few last numbers, for a pur-
pose, is possible, or, if a notice was published with the mis-
description in the first number, and corrected, and subse-
quently published for the requisite time, would have been
sufficient; and the jurisdiction would not have been defeated
if the publisher had, through mistake, taken the first and
incorrect notice and certified that it was published. We must
presume that the finding is correct, until impeached by the
record itself in such a manner as to preclude all presump-
tions in its favor. So long as this decree remains unreversed
and in full force, it must be held conclusive in all collateral
proceedings.
Nor is this case, in its essential features, similar to the case
of Donlin v. Hettinger, 57 111. 348. In that case, the proceed-
ing was commenced in Lake county, in 1846, for the sale of
lands in that county. That case came to an end by the ren-
dition of a decree for the sale of the lands, but that decree
was set aside by the court. About three years subsequently,
the petition was amended for the sale of lands in another
county, and the cause was continued until the next term,
when a decree was rendered for the sale of the last described
property ; but it nowhere appeared that there was any service
of process in this latter proceeding, or that notice was given
of the intended application to have the decree of 1846 set
aside and the petition amended so as to embrace lands in
another county ; nor did the decree find any such notice or
service, but was wholly silent as to whether either was had.
The difference in the two cases is obvious. In that case, there
1873.] Garrity v. The People. 83
Opinion of the Court.
was nothing in the record from which it could be inferred
that there was any notice ; whilst in this case, the decree
expressly finds there was notice properly, published.
It is also insisted, that the court failed to obtain jurisdic-
tion of the person of the minor, because a guardian ad litem
was not appointed to defend for her. Such an appointment
does not go to the jurisdiction of the court over the person
of the defendant. That was acquired by the notice which the
court found was given of the intended application for leave to
sell the land.
All of the other questions raised as to the regularity of this
proceeding to sell the land, the court having acquired juris-
diction, were only erroneous, and can not be regarded in any
but a direct proceeding. They can not be effectually urged,
collaterally, to defeat a title acquired under them.
The judgment of the court below is affirmed.
Judgment affirmed.
Hugh Garrity
v.
The People op the State op Illinois.
Assault with intent to rob — the proof must indicate the intent. On
an indictment for an assault with intent to commit a robbery, proof of a
•wanton assault, without any facts from which an intent to rob can be in-
ferred, will not sustain a conviction.
Writ of Error to the Criminal Court of Cook county;
the Hon. John G. Eogers, Judge, presiding.
Mr. John Lyle King, for the plaintiff in error.
Mr. Justice Scott delivered the opinion of the Court:
Plaintiff in error and Charles Weed were indicted for an
assault upon Benjamin G. Buchanan with intent to commit
robbery. At a subsequent term of the court Garrity was
84 Gaerity v. The People. [Sept. T.
Opinion of the Court.
separately tried, and the jury found him guilty, and fixed the
time he should serve in the penitentiary at the period of six
years. The court overruled the motion for a new trial, and
pronounced judgment on the verdict, and that decision is
assigned for error.
After a careful consideration, we are of opinion, all the
members of the court concurring, that the evidence fails to
sustain the verdict. There is no direct testimony, and it
seems to us the record is singularly barren of evidence of
facts and circumstances from which it could fairly be inferred
the party accused intended to commit a crime of the character
charged in the indictment. There is no doubt he was guilty
of an assault, but not with an intent to commit the crime
alleged. It was simply an assault characterized, perhaps, by
a high degree of wantonness, for which the parties accused
ought to have been punished. But the time, place and facts
of' the transaction, as given in evidence by the several wit-
nesses, all repel the idea there was any intention whatever to
commit a robbery on the person of Buchanan. He states it
was a little before nine o'clock in the evening, while the street
lights were still burning, the gas burning in the adjoining
stores, and persons passing so near that some of them heard
the conversation between the parties. There is no evidence
that indicates any purpose on the part of either of the assail-
ants to dispossess the prosecuting witness of anything he had
on his person. Indeed, the facts, and the acts of the parties,
are inconsistent with such a theory. There was certainly no
prospect of securing any great reward, such as would induce
the attempt to commit so bold a crime by violence, in a pub-
lic street, where persons were constantly passing at that early
hour of the evening.
At the time of the assault, Buchanan had in his arms some
"kindling wood," and in his pocket a "shoestring, an old
knife, and some change." He distinctly states that neither
the plaintiff in error nor Weed attempted to take anything
from his person. He met the accused a short distance from
1873.] O'Riley v. Stiver. 85
Syllabus.
the store which he had just left, carrying an overcoat on his
arm, which he threw in the face of the prosecuting witness as
he passed, and, on being asked why he did it, Weed, who was
only a few steps behind, came up, and a fight ensued, in which
Garrity took no part, except to encourage Weed to continue
the fight. The attack was wholly unprovoked and wanton,
but it partakes in no degree of the nature of an assault with
intent to commit robbery. There are no facts or circum-
stances proven that indicate, or from which such a purpose
can be inferred.
The jury clearly misjudged as to the weight and effect of
the evidence, and it was error in the court to refuse to award
a new trial.
The judgment will be reversed and the cause remanded.
Judgment reversed.
William O'Kiley
v.
Nancy Suvee.
Tender — must he kept good. Where the son of the defendant sold
her claim for money, and received the proceeds, which he took to
her, and she caused the same to be tendered back to the purchaser, and
collected the claim herself, and the person tendering afterwards paid her
back the money, and she was sued by the purchaser for the amount of
the claim, and judgment rendered in her favor: Held, that the judgment
was erroneous, for the reason that she did not keep her tender good by
bringing the money into court.
Appeal from the Circuit Court of Warren county; the
Hon. Arthur A. Smith, Judge, presiding.
Messrs. Stewakt, Phelps & Stewart, for the appellant.
Mr. John J. Glenn, for the appellee.
86 O'Riley v. Suver. [Sept. T.
Opinion of the Court.
Mr. Justice Sheldon delivered the opinion of the Court :
This suit was brought by O'Riley, the appellant, to recover
the proceeds of the sale of a bull that had been shipped to
Chicago by one John Shelton, for the appellee, Nancy Suver.
On Monday of a certain week, the appellee sent her son,
Leonidas Suver, to the village of Cameron, with a bull, with
instructions to sell it to Shelton for $50, or have the latter
ship it to Chicago to be sold. Shelton not buying the bull,
he shipped it to Chicago on that day. He returned on Wed-
nesday, and that evening Leonidas Suver went in to Cameron
to ascertain the result, but not seeing Shelton, he made a sale
of the proceeds of the animal to the appellant for $51, and,
on returning home that evening, handed the money to his
mother, informing her what he had done. She kept the
money until the following Saturday morning, when she took
the money to Cameron, and left it with one Snell, with in-
structions to deliver it to O'Riley. That evening O'Riley
was in the store of Snell, when the latter informed O'Riley
of what Mrs. Suver had done, and offered to get the money
for him, but appellant refused to receive it. Snell kept the
money until the day of the trial before the justice of the
peace, when he handed it back to Mrs. Suver. Shelton having
paid over the proceeds of the sale, which were $70, to Mrs.
Suver, O'Riley brought this action to recover the same, the
suit being originally commenced before a justice of the peace.
On appeal to the circuit court, the judgment recovered by
O'Riley before the justice was reversed, and a judgment ren-
dered against him, from which he brings this appeal.
There was testimony in the case that Leonidas Suver had,
to some extent, been in the habit of transacting similar busi-
ness for his mother, and the evidence tended strongly to show
a ratification by Mrs. Suver of the sale in question.
But, without considering the testimony in that regard, we
think there is one point on which the judgment must be
reversed, and that is, that the $51 paid by O'Riley, and re-
1873.] Hawkins v. Albright et aL 87
Syllabus.
ceived by Mrs. Suver, for the proceeds of the sale of the bull,
were not brought into court for O'Biley.
Mrs. Suver has now both the proceeds of the sale and the
money of O'Riley, $51, paid for the same. This is wrong.
The appellee is not entitled to both. To entitle herself to
retain the proceeds of the sale, in case she had never author-
ized or ratified the sale, she should have returned to O'Riley
the $51. The tender of it alone was not sufficient. The ten-
der should have been kept good by bringing the money into
court. Wood v. The Merchants' Saving, Loan and Trust Co.
41 111. 267.
It is objected to this, that the question whether the money
was paid into court, was one to be determined on inspection
by the court, and that the bill of exceptions fails to show that
the court, upon inspection, found the money tendered was not
in court; but this was a proceeding commenced before a jus-
tice of the peace, where there is no formal pleading.
The appellee should have returned the money. The evi-
dence fails to show that. It only shows that she once offered
to return it, and that the appellant refused it, and that she
still has it in her own hands, as it was there when it was last
seen.
The judgment must be reversed, and the cause remanded
for further proceedings.
Judgment reversed.
"William Hawkins
v.
Theodore Albright et al.
1. Abatement — waiver of plea in, oy pleading to the merits. At com-
mon law, the filing of a plea in bar before a plea in abatement was dis-
posed of, was a waiver of the plea in abatement. While it is true that a
plea in abatement to a writ of attachment is, for most purposes, governed
by the common law rules applicable to such pleas, yet, under our proce-
88 Hawkins v. Albright et al. [Sept. T.
Opinion of the Court.
dure, such a plea is not waived by the filing of pleas in bar to the cause
of action, and they should all be submitted to the same jury.
2. Attachment — defendant may plead to writ and to the merits at tJie
same time. As the defenses which may exist to the right to attach prop-
erty have no necessary connection with defenses to the cause of action,
the right to plead in abatement is not upon the condition of abandoning
all other defenses, but, on the contrary, all other legitimate defenses to the
merits may be interposed at the same time.
3. Same — effect of plea in abatement. The effect of a plea in abatement
traversing the grounds alleged, upon which a writ of attachment is issued,
is simply to throw the burden of proving the grounds of attachment upon
the plaintiff.
4. Same — verdict and judgment. Where the verdict of the jury upon
issues upon a plea in abatement to a writ of attachment, and upon pleas
in bar, is all one way, as, for the defendant, this will be sufficient without
any special finding as to each, and judgment may be rendered the same
way, generally, for the party succeeding. If the jury finds the issue upon
the plea in abatement one way, and upon the other issues for the other
party, the judgment should be special, finding separately as to each.
Writ of Error to the Circuit Court of Kankakee county ;
the Hon. Charles H. Wood, Judge, presiding.
This was an action commenced by attachment, by the de-
fendants in error against the plaintiff in error. The opinion
of the court presents the necessary facts to an understanding
of the case.
Mr. W. H. Kichardson, for the plaintiff in error.
Mr. James N. Orr, for the defendants in error.
Mr. Justice Scholfield delivered the opinion of the
Court :
Appellees filed a plea in abatement, traversing the matters
alleged in the affidavit, and, subsequently, and before this
plea was disposed of, they filed a plea of non-assumpsit to
the declaration. Appellant moved to strike the plea in abate-
ment from the files, but the court overruled the motion, and
submitted the issues on both pleas to the same jury. Excep-
1873.] Hawkins v. Albright et al. 89
Opinion of the Court.
tion was taken to this, and this ruling of the court is the
principal error complained of.
At common law, the filing of a plea in bar, before a plea
in abatement was disposed of, was a waiver of the plea in
abatement. But while this plea is called a plea in abatement,
and, for most purposes, is governed by the rules applicable
to such pleas, we are constrained to hold that the legislature
intended that the issue presented by it should not be waived
by other issues of fact raised by pleas in bar to the cause of
action set forth in the declaration, but that they should all
be submitted to the same jury.
Proceedings by attachment, for the collection of debts, are
of statutory origin. The writ is not a common law writ, and
does not issue as a matter of course, on the application of the
party desiring it, by merely filing his praecipe or declaration.
It is only authorized to be issued where certain facts, extrin-
sic of the indebtedness, exist, which shall be shown by the
ex parte affidavit of the party applying for the writ. It is
summary and oppressive in its character, and may be attended
with heavy costs. The existence of the indebtedness is, of
itself, no justification for issuing the writ, and the defenses
which may exist against the one, have no necessary connec-
tion with those that may exist against the other.
The 8th section of the Attachment Act, (R. S. 1845,) pro-
vides, " that, in case any plea in abatement, traversing the facts
in the affidavit, shall be filed, and a trial shall be thereon had,
if the issue shall be found for the defendant, the attachment
shall be quashed." We can not suppose that the legislature, in
conferring this most salutary right, in so summary a proceed-
ing, intended it should be exercised only upon the condition
of abandoning all other defenses. It is manifest, upon the
contrary, that it was intended that all other legitimate de-
fenses which exist to the cause of action, may also be inter-
posed, for it is provided, in the 25th section of the same act,
that any defendant, against whom an attachment shall be sued
out, may avail himself, in his defense, of any set-off properly
90 Hawkins v. Albright et aL [Sept. T.
Opinion of the Court.
pleaded by the laws of this State, notwithstanding such set-
off may not be due at the time of suing out such attachment,
or at the trial thereof; thus, instead of narrowing, enlarging
the defenses.
In Boggs v. Bindshoff, 23 111. 68, it was held, that it is the
duty of the jury which tries the issue formed by the plea
traversing the affidavit, if they find the plea untrue, to assess
the plaintiff'^ damages; and that it is error, after this issue
has been tried by one jury, to call a second jury to assess
damages. To the same effect are, also, Moeller v. Quarrier, 14
111. 280, and Brown v. III. Oen. Mut. Ins. Co. 42 id. 369.
It necessarily follows, either that one issue excludes the
other, which we do not think could have been intended by
the legislature, or that they must all be submitted to the same
The pleas in this case were filed in their proper order. The
plea traversing the affidavit properly concludes to the coun-
try, and the common similiter, only, is required to form a com-
plete issue of facts, and the effect of the plea is simply to
throw the burden of proof upon the plaintiff.
There is, it seems to us, great propriety in submitting all
the issues to the same jury. It simplifies the proceeding,
saves time, and avoids much expense and delay.
In Stillson v. Hill, 18 111. 262, it was held, that a plea in
abatement, denying a co-partnership by one of several defend-
ants, is not waived by his filing, at the same time, a plea of
non-assumpsit, and the reasoning upon which that decision is
sustained applies with equal cogency to the position we assume
here. We think the court below did not err in refusing to
strike the plea in abatement from the files.
It is also objected, that the judgment should have been
special, finding separately on each issue, instead of generally
on all. If the j«ury had found upon one for the plaintiffs, and
upon the other for the defendant, this would have been neces-
sary, and doubtless would have been done, but we perceive
no necessity, and we have been referred to no authority hold-
1873.] East v. Ceow. 91
Syllabus.
ing, where the issues are all found one way, that the verdict
shall designate the finding on each issue. As the whole in-
cludes all the parts, there is no difficulty in determining what
the finding is on each material issue, when it is known what
it is on all.
It is insisted that the verdict is not supported by the evi-
dence. We have examined the record with some care, and
are fully satisfied with the conclusion to which the jury
arrived. We think the evidence fairly preponderates in favor
of their finding. Believing that there is no error in the rec-
ord, the judgment of the court below is affirmed.
Judgment affirmed.
Henry J. East
V.
Oliver W. Crow.
1. Burden of proof. Where the plaintiff seeks to recover under the
terms of a verbal lease of land to the defendant, the burden of proof lies
on the plaintiff to prove the terms of leasing as alleged by him. If the
evidence does not preponderate in his favor, or is equally balanced, the
issue should be found for the defendant.
2. Same — of set-off, is on defendant. The burden of proof is on the
defendant, in respect to any set-off claimed by him, and he must establish
the existence and validity of his set-off by a preponderance of evidence.
3. Set-off — what may be. Demands for work and labor performed,
board, goods sold and delivered, and for money, etc., are not unliquidated
dam ages, and may be set off in an action ex contractu, whether they arise
out of the subject matter of the plaintiff's suit or not.
4. Instruction — where there is no evidence upon which to base it. It is
not error to refuse an instruction based upon a state of fact of which
there is no evidence.
Appeal from the Circuit Court of Grundy county; the
Hon. Josiah McKoberts, Judge, presiding.
92 East v. Ceow. [Sept. T.
Opinion of the Court.
Messrs. Cameeon & McDotjgall, for the appellant.
Mr. S. W. Haeeis, for the appellee.
Mr. Justice Ceaig delivered the opinion of the Court :
This was an action by attachment, brought in the circuit
court of Grundy county, by Henry J. East against Oliver W.
Crow, on the 2d day of December, 1870, to recover $175.
The defendant filed pleas o'f general issue and set-off. At
the November term, 1872, the cause was tried, and the jury
returned a verdict in favor of defendant for the sum of $86.73.
The plaintiff appealed, and insists on a reversal of the judg-
ment on three grounds :
First Because the court gave defendant's first instruction.
Second. For the reason that the court refused to give
plaintiff's third instruction.
Third. Because the verdict is against the evidence.
It appears, from the evidence, that the plaintiff rented a
farm to the defendant, from the 1st of March, 1870, to the
1st of March, 1871, by a verbal lease, and the controversy in
this case grew out of a dispute as to the terms on which the
farm was rented, and a long string of accounts each held
against the other, arising under the lease and from their
mutual dealing while the relation of landlord and tenant
existed.
The instruction given for defendant, to which exception is
taken, is as follows:
"The jury are instructed that the terms of the leasing of
the plaintiff's farm to defendant are material in this suit, and
that the plaintiff must prove, to the satisfaction of the jury,
by a preponderance of evidence, that the terms of said leas-
ing were such as plaintiff claims them to be; and if the jury
shall find that the evidence preponderates, in the slightest
degree, in favor of the defendant, or is equally balanced,
then the law is for the defendant, and plaintiff can not re-
1873.] East v. Ceow. 93
Opinion of the Court.
The objection made to this instruction is, that it told the
jury that plaintiff was bound to disprove the set-off of the
defendant by a preponderance of evidence. If that was the
correct construction to be placed upon it, the objection would,
no doubt, be well taken; but no jury of ordinary intelligence
would ever place such a construction on the instruction. The
effect of the instruction, and the only reasonable interpreta-
tion that can be given it, is, that, so far as the plaintiff's
account was concerned, the burden of proof was upon him.
If, however, there was any doubt in regard to the jury being
misled by this instruction, a reference to the first instruction
given for the plaintiff* will entirely remove that doubt. It
reads as follows :
"The jury are instructed that as to the off-set made by
defendant, Crow, to the claim set up by the plaintiff, the
burden of proof is on said defendant, and that he must
establish the existence and validity of such off-sets by a pre-
ponderance of evidence."
These two instructions, taken together, fairly give the law,
so far as the burden of proof was concerned, to the jury, and
they could not be misled upon that question.
The second point relied upon is, the court refused to give
plaintiff's third instruction, which reads as follows :
"The jury are instructed that if they believe, from the evi-
dence, that the defendant has any valid demands against the
plaintiff, interposed in this suit by way of set-off, but that
such demands have never been liquidated, or the amount
thereof settled upon and determined, then the jury will dis-
regard such demands in this suit, unless the jury further
believe, from the evidence, that such demands grew out of
the subject matter or claims upon which plaintiff's suit is
brought."
In support of this instruction, we are referred to two cases,
Be Forrest v. Oder, 42 111. 500, and Eobison v. Hibbs, 48 111.
94 East v. Crow. [Sept. T.
Opinion of the Court.
408. In the first case supra, all that is decided is, unliquidated
damages, arising out of covenants, contracts or torts, and not
connected with the subject matter of the suit, can not be set
off under the statute.
In the second case, it is held that unliquidated damages
growing out of a tort, could not be set off in an action ex
contractu.
These decisions do not sustain the position taken by the
plaintiff, nor the instruction refused. There was no evidence
in the case upon which to base the instruction. The items
of set-off in defendant's account, were not unliquidated dam-
ages arising out of a breach of contract, covenant or tort.
They were for work, labor performed, board, goods sold and
delivered, and money, etc. These items were a proper sub-
ject of set-off, and it would have been erroneous for the court
to have given the instruction.
The last point relied upon is, that the verdict is against
the evidence. Upon a careful examination of the testimony,
we have not been able to arrive at that conclusion. The
evidence is conflicting, and there may be some doubt as to
the correctness of the finding ; but on the whole we are not
prepared to say the jury did not arrive at a correct conclu-
sion.
This court will not reverse because the verdict may be
against the evidence, unless it is apparent that, upon another
trial before a jury, the result would be different, and where
there is as much conflict in the evidence as this record discloses
in this case, it would be mere conjecture to say another jury
would find differently.
Perceiving no error in the record, the judgment will be
affirmed.
Judgment affirmed.
1873.] Ragor et ah v. Kendall. 95
Opinion of the Court.
Andrew Rag or et al.
v.
James S. Kendall.
Judgment — against two, will oe reversed, where there is no evidence a(,
one of defendants. A joint judgment against two defendants in trespass,
as the owners of an omnibus, for running into a carriage, where there is
no evidence of ownership or interest as to one of the defendants, can not
be sustained on appeal or error.
Appeal from the Circuit Court of Cook county; the
Hon. Lambert Tree, Judge, presiding.
Mr. B. W. Ellis, for the appellants.
Mr. John Woodbridge, for the appellee.
Mr. Chief Justice Breese delivered the opinion of the
Court :
This was an action of trespass, in the Cook circuit court,
against Andrew Ragor and Peter Ragor, as owners of an
omnibus employed upon a public street in the city of Chicago,
to recover damages for violently driving the same against the
carriage of the plaintiff, by which the same was greatly
injured, and the horse attached to the same also injured.
The jury rendered a verdict for the plaintiff, on which the
court rendered judgment, to reverse which the defendants
appeal.
However just this judgment may be, it can not stand. The
action is brought against Andrew and Peter Ragor. There
is no evidence in the record to charge Peter Ragor. He is
not shown to have been an owner, or to have any interest
whatever in the omnibus. Counsel for appellee is mistaken
in saying, " it was proved in evidence " that the defendants
were the owners of the offending omnibus. The record con-
tains no such evidence. It shows that Andrew Ragor was
96 Cooke v. Muephy et al. [Sept. T.
Syllabus.
one of the proprietors, but it was not shown who were the
others. Peter Kagor's name is not mentioned in this connec-
tion. A verdict and judgment wholly unsupported by the
evidence, can not stand.
The judgment must be reversed, and the cause remanded
for a new trial.
Judgment reversed.
John Cooke
v.
Pateick W. Muephy et al.
1. Consideration — of supplemental contract to pay additional price on
building contract. "Where the parties engaging to furnish materials and
perform certain work in the erection of a building, claimed that they had
made a mistake of $500 in the price of the same, and refused to go on and
complete the contract, and thereupon the other party agreed to pay $500
in addition to the original contract price, under which the contractors
completed the work: Held, that the new and supplemental agreement to
pay $500 more was not without consideration, but was valid and binding.
2. Same — what is sufficient. One promise is a sufficient considera-
tion to support another, and where a person does an act beneficial to
another, or agrees to do so, that forms a sufficient consideration to support
an agreement to pay for the same.
3. Contract — written, may be changed by a subsequent verbal one. A
sealed building contract may be changed by a subsequent verbal agree-
ment to pay an additional sum for the same work and materials mentioned
in the original, and if the work is done under the same, it will be bind-
ing.
4. Same — whether subsequent verbal contract abrogates prior written one.
"Where a written building contract is subsequently changed, by parol,
only as to the consideration to be paid for the work, when completed, in-
creasing the sum, this will not be an abandonment of the written con-
tract, but it will remain in force, except as to the price to be paid.
5. New trial — on ground of mistake by witness in his testimony. Before
a new trial is granted on the ground that a witness of a party was mistaken
in his testimony given, and, on a new trial, will correct the same, the
party must show that he has been active and diligent to avert the injury
1873.] Cooke v. Murphy et al. 97
Opinion of the Court.
he is about to sustain by the mistake of the witness, and if the mistake
could have been demonstrated, and the correction made before the close
of the trial, a new trial will be properly refused.
Appeal from the Circuit Court of Cook county ; the Hon.
John G. Eogers, Judge, presiding.
This was a petition by Patrick W. Murphy and Eichard C.
Murphy, against John Cooke, to enforce a mechanic's lien.
The opinion of the court contains a substantial statement
of the material facts, except that the original contract was
under seal. The jury found for the petitioners the sum of
$797.90. The defendant moved for a new trial, which the
court refused, and entered a decree in accordance with the
verdict, in the usual form. The defendant appealed.
Messrs. Bonfield & Swezey, for the appellant.
Messrs. Eunyan, Avery, Loomis & Comstock, for the
appellees.
Mr. Justice Walker delivered the opinion of the Court :
This was a proceeding to enforce a mechanic's lien, in the
circuit court of Cook county, against a lot of ground in the
city of Chicago. The facts, as they appear from the record,
are, that, in January, 1872, appellees, as builders, entered into
a written agreement with appellant, to furnish materials for
and erect and finish two two-story frame buildings, on or before
the 15th day of April, 1872, for which they were to be paid
$4310, in instalments, and in case the buildings were not
completed within a stipulated time, appellant was to have $20
per week for each week they should remain unfinished after
the 15th day of April, to be deducted from the contract price.
The work was commenced, but, before they were completed,
the houses began to settle, and appellant claims that, after
appellees claimed they were completed, they had given away
so that he was compelled to have the houses raised by screws,
7— 70th III.
98 Cooke v. Murphy et al. [Sept. T.
Opinion of the Court.
and to have the supports reset, and that he was compelled to
make other repairs.
Appellees had received, before suit was brought, $3972.21
on the contract. During the latter part of the time, in con-
structing the work, some of the surface earth was removed
from under the houses by the city authorities, with the per-
mission and consent of appellant.
It is contended by appellees that, a few days after the con-
tract was entered into, the parties met, and a verbal agree-
ment was entered into, by which appellant was to pay $500
more, as the price of the work, than was mentioned in the
written contract; but this is denied by appellant. Another
question in dispute was in regard to the time when the build-
ings were completed, and what sum should be deducted from
the price.
There is a dispute as to the cause of the settling of the
building, and whether it was from the fault of appellees; and
appellant claims that the materials were inferior in quality,
and a portion of the work was unskilfully performed.
It is insisted that the evidence fails to establish any change
in the written agreement. Whilst the evidence is not of that
clear and satisfactory character that leaves no doubt on the
mind, we think the jury were warranted in finding that the
change was made by which appellant was to pay the additional
sum of $500 for the performance of the work. Hence, the
court below did not err in refusing to exclude the evidence,
or in refusing to instruct the jury to disregard it. This error
is not well assigned, as the evidence tended to prove the fact,
and, as we have said, it warranted the jury in finding that it
did.
It is also urged that the evidence was incompetent, because
it failed to show that, if the agreement was made, it was not
based upon any consideration. It was claimed that appellees
had made a mistake, in their calculations, of $500, against
themselves, and they had appealed to appellant's sense of
justice and right, either to pay them the additional sum, or
1873.] Cooke v. Murphy et al. 99
Opinion of the Court.
release them from the contract. He did not deny that there
had been a mistake.
The rule is familiar, that one promise is a sufficient con-
sideration to support another, and that where a person does
any act beneficial to another, or agrees to do so, that forms a
sufficient consideration to support an agreement. Here were
mutual promises, one to perform labor, and to furnish mate-
rials, and the other to pay for them. Again, the performance
of the labor and the furnishing materials were of benefit to
appellant, and of loss and injury to appellees, and the new
and additional contract was binding. Appellees refused to
go on with and to perform the contract, and he agreed, if they
would, he would pay them the additional sum.
It is insisted that, even if the contract was altered as
claimed, it became a new agreement, and abrogated the writ-
ten one ; and as it was relied on in the petition, the evidence
of the new contract did not support the allegations. It sets
out both the written and the verbal agreement, and, we think,
correctly. The supplemental contract was an addition to the
written contract, and only related to the consideration to be
paid for the work. It does not seem to have been in contem-
plation of the parties that the written agreement should be
abandoned, but, on the contrary, to be and remain in force
in all of its terms and conditions but the price to be paid,
which was to be governed by the supplemental agreement.
It is urged that the evidence fails to support the verdict.
After a careful examination of all of the testimony, we find
it conflicting, but we are unable to say the finding is against
its weight. We can not reverse on such grounds, unless the
finding is manifestly against the evidence ; and such is not
the case with this verdict.
We perceive no material error in the instructions. They
presented the law fairly to the jury, and were not calculated
to mislead.
It is urged that appellant was taken by surprise by the evi-
dence of one of his witnesses, who testified as to the condition
100 Hennies et al. v. The People. [Sept. T.
Syllabus.
of the foundation of the house; that the witness was entirely
mistaken as to the actual condition of the foundation when
he testified, and, upon examination after the trial, he became
satisfied of the mistake in his evidence, and would, on another
trial, correct it. Before a new trial is granted on the grounds
urged in this case, the party must show that he has been active
and diligent in his endeavors to avert the injury he is about
to sustain. In this case, appellant knew of the mistake, if
one was made, and should have asked permission of the court
for the witness to make the examination, and if he found that
he was mistaken, to permit him to correct his evidence. As
but a short time would have been required for the purpose,
the court would doubtless have permitted the examination to
have been made; nor does it appear that he did not have
ample time for the witness to have made the examination
before the evidence was closed.
The judgment of the court below must be affirmed.
Judgment affirmed.
William Hemtes et al.
The People of the State of Illinois.
1. Pleading — in prosecution originating in justice's court. No formal
pleadings are required before a justice of the peace in any case, and con-
sequently none can be required in the circuit court on appeal. Where
there is a trial of an appeal in a prosecution for assault and battery, the
record need not show a formal plea, as an issue will be presumed to have
been joined.
2. Appeal bond — on appeal from conviction for assault and battery. An
appeal bond, given on appeal from a conviction before a justice of the
peace for an assault and battery, conditioned to pay whatever judgment
may be rendered by the court upon dismissal or trial of the appeal, is a
substantial compliance with the statute, and is binding.
3. Appeal — statute authorizing judgment against surety in appeal bond
on ' the conviction of the principal, is constitutional. The statute which
1873.] Hennies et al. v. The People. 101
Opinion of the Court.
authorizes the circuit court, on the trial of an appeal in a prosecution for
assault and battery, and the conviction of the principal, to render judg-
ment for the fine against both the principal and surety in the appeal bond,
is not unconstitutional.
Writ of Error to the Circuit Court of Livingston county.
Mr. Charles J. Beattie, for the plaintiff in error.
Mr. James K. Edsall, Attorney General,, for the People.
Mr. Justice Scott delivered the opinion of the Court:
This was a prosecution for an assault and battery, com-
menced before a justice of the peace, against William Hen-
nies and Annie Hennies. On an appeal taken to the circuit
court, a trial was had, and both defendants were again found
guilty, a fine assessed against each of them, and judgments
separately entered for the amount of such fine against each
of the principals and their security on the appeal bond.
The first point made is, that no plea was entered by either
of the defendants, either before the justice, or in the circuit
court. No formal pleadings are required before a justice of
the peace in any case, and consequently none can be required
in the circuit court, in a case brought there by appeal.
The issue wil*l be presumed to have been joined, and there
was no error in rendering judgment on the verdict.
It is insisted, the court erred in rendering judgment against
the security on the appeal bond, jointly with each of the
principals. The statute expressly authorizes such a judgment,
in case the principal is found guilty. But it is objected, the
bond is not in the form required by the 99th sec. of the act
of 1845. No form of the bond is prescribed. It is simply
provided the bond shall be "conditioned for the payment of
whatever judgment the court may render against the defend-
ants." The bond given is the usual form in use for taking
appeals from judgments of justices of the peace in ordinary
cases, and the condition is, to "pay whatever judgment may
102 C, E, I. & P. B. E. Co. v. Bell, Adme. [Sept. T.
Syllabus.
be rendered by the court upon dismissal or trial of said
appeal."
Although this bond could have been worded so as to comply
more exactly with the statute, yet it must be regarded as a
substantial compliance with its provisions. The legal effect
of the bond given, is the same as that required by the statute.
In either case it is, to pay the judgment that shall be rendered
against the principals, by the court, on the trial of the appeal.
It is claimed that the 100th section of the act of 1845, which
authorizes the circuit court to render judgment against the
surety, as well as against the principal, in case of conviction,
is in conflict with sections 2 and 5 of article 2 of the consti-
tution of this State.
There is no difference, in principle, between this case and
Whitehurst v. Cohen, 53 111. 247, and the reasoning of that
case affords a complete answer to the objection taken. On
the authority of that case, we hold there is nothing in the
law under which the judgment in this case was rendered
that contravenes any of the provisions of the constitution.
No error appearing in the record, the judgment is affirmed.
Judgment affirmed.
Chicago, Kock Island and Pacific Eaileoad Co
Anslow Bell, Admr.
1. Evidence — declarations of third party. In an action against a rail-
road company, to recover damages for killing the plaintiff's intestate
through a collision at a road crossing, the company sought to prove the
declarations of a person who was riding with the deceased in his wagon
at the time, made just after the accident, which the court refused : Held,
that the evidence was inadmissible, the person injured being in a dying
condition, and not capable of assenting to what was said.
2. Same — relevancy of evidence as to habits of party killed. In an
action to recover of a railroad company for the killing of a person,
1873.] C, E. I. & P. E. E. Co. tr. Bell, Admr. 103
Syllabus.
where the negligence of the deceased, as well as that of the company, was
involved, the company inquired of a witness as to the habits of the de-
ceased in genera], without specification as to the sort of habits sought to
be proved, which the court excluded: Held, that the court was justified
in rejecting the offered testimony, for the reason that the habits were not
particularized so as to show their bearing on the case.
3. Witness — impeachment as to former statements. Where a witness is
asked, on cross-examination, whether he had made a particular statement
before the trial, which is incompetent, as not relating to anything testified
to by him on his direct examination, and collateral, his answer must be
taken as conclusive, and can not be contradicted by other witnesses.
4. Negligence — contributory. It is the duty of persons about to
cross a railroad, to look about them and see if there is danger, — not to go
recklessly upon the road, but to take the proper precautions themselves,
to avoid accidents at such places. If a party rushes into danger, which,
by ordinary care, he could have seen and avoided, no rule of law or jus-
tice can be invoked to compensate him for any injury he may receive.
5. In general, it is deemed culpable negligence to cross the track of a
railroad without looking in every direction that the rails run, to make
sure that the road is clear, as also to attempt to drive a team across the
track of a railroad in full view of an approaching locomotive.
6. Where a party was killed by a locomotive colliding with his
wagon and team, while in the act of crossing the railroad track at a pub-
lic crossing, in the night time, and it appeared that it was very calm, still
and dark, that the train was lighted up, and there was a bright head-light,
that there was nothing to obstruct its view from the deceased, as it was
approaching, for some distance, and that he must have heard the noise ;
that the deceased was addicted to hard drinking, and was probably under
the influence of liquor, and that his team came upon the crossing in a
run, so as not to be seen by those in charge of the train until it was upon
the track, it was held, that, owing to the negligence of the deceased, no
recovery could be had by his personal representative against the company,
for causing his death, and injury to his team and wagon.
7. Same — neglect to ring bell, etc. If a traveler on the highway has no-
tice of an approaching train in time to avoid a collision upon the cross-
ing, the object of ringing a bell or sounding a whistle is subserved, and
the failure to perform such acts, or either of them, can not be held to be
the cause of an injury resulting from a collision, under such circum-
stances.
Appeal from the Circuit Court of Grundy county; the
Hon. Josiah McRoberts, Judge, presiding.
104 C, K. I. & P. K. R. Co. v. Bell, Admr. [Sept. T.
Opinion of the Court.
Mr. Thomas F. Witherow, for the appellant.
Messrs. Hunter & Page, for the appellee.
Mr. Justice Sheldon delivered the opinion of the Court :
The plaintiff in the court below commenced two actions
against the railroad company, founded upon a collision be-
tween a train on the defendant's railroad and the wagon and
team of John Boyd, deceased, the plaintiff's intestate, at a high-
way crossing near Minooka, in Grundy county. One action was
for damages sustained by the death of Boyd, and the other
for damages resulting from the killing of his horses and the
destruction of his wagon and harness.
The declaration alleged, as the negligence of the defend-
ant which caused the collision, an omission to ring the bell
or blow the whistle for a distance of 80 rods before reach-
ing the crossing, as required by the statute. The cases were
consolidated.
Verdicts and judgments were rendered in favor of the
plaintiff in both cases, and the defendant has appealed.
It is assigned for error, that the court below excluded the
declaration of one Mitchell, a person who was riding at the
time with Boyd, made just after the collision, as to the con-
dition Boyd was in at the time of the accident.
We know of no principle which would justify the admis-
sion of such declaration.
There could arise no inference of assent to it, on the part
of Boyd, from his silence, as he was in a dying condition at
the time. It is said they were joint wrong-doers, and that
the admission of one joint wrong-doer is evidence against
both. We fail to see how they could be considered as joint
wrong-doers. Mitchell was riding with Boyd merely as a
passenger. That is all there is in the case to affect Mitchell.
It is urged that the court erred in excluding the testimony
of witnesses as to what Meade, one of the plaintiff's witnesses,
1873.] C, K. I. & P. R. R. Co. v. Bell, Admr. 105
Opinion of the Court.
said, at the time of the accident, in regard to Boyd's habit of
going home intoxicated.
The testimony was not admissible for the purpose of im-
peaching Meade, as he had given no evidence upon that sub-
ject. It is true, he was asked, on cross-examination, whether
he had not made such a statement, and denied it. But the
question was incompetent, as it was not relevant to any testi-
mony which the witness had given, and his answer, it being
as to a collateral matter, had to be taken as conclusive. It
was not admissible afterward to contradict him in that respect,
and thus introduce into the case his unsworn statements. If
defendant sought any statement of Meade upon that subject,
it should have examined him as a witness, and got his sworn
statement.
It is insisted that the court below erred in excluding evi-
dence of what were the personal habits of the deceased when
intoxicated. The inquiry was general, without any specifica-
tion of the sort of habits sought to be proved.
We think the court was justified in rejecting the offered
testimony, without some particularizing of the habits offered
to be proved, so that it might be seen that they were such as
that the proof of them would have a legitimate bearing upon
the issue.
It is insisted that the verdict was manifestly against the
evidence and the instructions of the court.
There is some apparent conflict in the testimony as to the
alleged negligence in failing to ring the bell. Eight witnesses
testified that they did not hear the bell ring, only one of them
undertaking to testify positively that it was not rung. Of
these witnesses, not one was nearer than 80 rods from the
train. Three of them were 200 rods away, and one a mile
and a-half. Five witnesses introduced by the defendant tes-
tified positively that the bell was rung, one of them, that he
rang it himself. Three of these witnesses were disconnected
with the road, and apparently disinterested, being passengers
on the train. Upon any fair weighing of the testimony on
106 C., R. I. & P. R. E. Co. v. Bell, Admr. [Sept. T.
Opinion of the Court.
this point, it would seem to be in favor of the appellant. But,
were it otherwise, we are of opinion that the deceased's own
want of proper care contributed directly to the injury, and
should prevent a recovery.
This court has said, " it is the duty of persons about to
cross a railroad, to look about them, and see if there is dan-
ger— not to go recklessly upon the road, but to take the proper
precautions themselves to avoid accidents at such places. If
a party rushes into a danger which, by ordinary care, he could
have seen and avoided, no rule of law or justice can be invoked
to compensate him for any injury he may so receive." Chi.
and A. R. R. Co. v. Gretzner, 46 111. 82; and see, St. X., A.
and T. H. R. E. Co. v. Manly, 58 111. 300.
And it is the general rule, that it is deemed culpable neg-
ligence to cross the track of a railroad without looking in
every direction that the rails run, to make sure that the road
is clear, as also to attempt to drive a team across the track of
a railroad in full view of an approaching locomotive. Shearm.
& Redf. on Negligence, §§ 488, 489, and cases cited in notes.
We find, from the evidence, that the accident occurred in
the night time; that the night was calm, very still and dark,
and the atmosphere clear. Boyd, in his approach to the cross-
ing where the collision occurred, was on the north side of the
railroad, traveling south on a highway running north and
south on a section line. The railroad crosses it running in a
south-westerly direction. Before reaching the crossing, the
railroad passes through a cut, the south-westerly extremity
of which is 140 rods from the crossing. From the end of
this cut to the crossing, the railroad passes along on an em-
bankment, which, at the crossing, is about 12 feet above the
surrounding country, the grade descending, from the cut to
the crossing, about 28 feet per mile. The cars were lighted.
The head-light rested on the front of the engine about six
feet above the level of the railroad. This would place the
head-light, when the engine emerged from the cut, some 27
feet above the road on which the deceased was traveling
1873.] C, R. I. & P. R. E. Co. v. Bell, Admk. 107
Opinion of the Court.
toward the crossing. It must have been at least 16 feet
above the highway when Boyd was at a point 150 feet from
the crossing.
The country is an open one, and the land upon the north
side of the railroad generally flat. Did not the deceased see
the approaching train ?
There is some evidence tending to show that the view
of the train might have been obstructed by a field of corn
between the highway and the railroad, and by trees that were
growing on the side of the railroad embankment. But, after
considering all the testimony on this head, we are satisfied
that the deceased, in the exercise of ordinary care, must have
seen the approaching train/
The witness Meade was 80 rods from the crossing, and a
mile and a-half from Minooka, and he saw the train as it left
that station, saw it after it came out of the cut, heard the
noise of it quite distinctly, and saw the head-light. Feehan
was distant 200 rods, saw the train from the cut to the crossing,
saw the lights in the cars, and heard the noise of the train. Con-
vis was at his house, a mile and a-half from the crossing, and
heard the train until the crash. James Clennan, traveling
north on the road on which Boyd was going south, heard the
noise of the train a distance of 200 rods. Boyd, then, too,
must have heard, as well as seen, the approaching train. The
ringing of the bell or sounding the whistle is but for the pur-
pose of giving notice of the approach of the train. If the trav-
eler on the highway has such notice otherwise, in season to
avoid a collision upon a crossing, the object of ringing the bell
or sounding the whistle is subserved, and the failure to perform
said acts, or either of them, can not be held to be the cause
of an injury, which may result from such collision.
The testimony was, that the team of Boyd was not seen by
those in charge of the train until the moment it came upon
the crossing, and that the horses came upon it on a run.
Boyd appears to have been acquainted with the locality.
He was in the habit of traveling over it.
108 C., R. I. & P. R. E. Co. v. Bell, Admr. [Sept. T.
Opinion of the Court.
The afternoon before the accident, Boyd was at the house
of the appellee, Bell, his father-in-law, and there met two
friends, Mitchell and Leeper, but a short time from their old
home in Ireland, whom Boyd then met for the first time after
their separation several years before. Bell's house was on the
south side of the railroad, on a road running east and west,
and was about three-quarters of a mile south from Minooka,
a station on the railroad on its north side.
Boyd lived about five miles west from Bell, and also on the
south side of the railroad. About half past six o'clock P. M.,
in November, Boyd started for home from Bell's house, taking
along with him, in his wagon, Mitchell and Leeper, by the
roundabout road by way of Minooka. They stopped at that
place and paid a visit to a drinking saloon there. Boyd is
shown to have been a convivial man, and, as the witnesses
term, a drinking man, who was in the habit occasionally of
getting intoxicated when he came to town. True, there is
evidence that, when he left Minooka, he showed no signs of
intoxication. This might have been, and yet, by the time he
reached the crossing, some two miles distant, half an hour
later, he might have been under the undue influence of intox-
icating liquors drank at Minooka, which incited his appa-
rently rash conduct.
In view of all the circumstances, the conclusion forces
itself upon the mind, that the deceased, being fully apprised
of the approach of the train, recklessly ventured upon the
crossing in front of the advancing train; or that, if not so
apprised, it was for the want of the simple precaution of
looking and listening to find out whether a train was approach-
ing, which would be a lack of common care and common
caution ; and in either event, the deceased's own want of ordi-
nary care would have contributed directly to the injury,
which, under the well settled doctrine, would preclude a re-
covery for any damage sustained.
We are of opinion that the verdict was manifestly against
the evidence, and that the judgment should be reversed.
Judgment reversed.
1873.] Hollida & Ball v. Hunt. 109
Syllabus.
Hollida & Ball
v.
William H. Hunt.
1. Patent rights — constitutionality of State law relating to sales. The
act entitled "An act to regulate the sale of patent rights, and to prevent
frauds connected therewith," approved March 25, 1869, is unconstitutional
and void, as attempting to regulate and control, by State legislation, mat-
ters of which the Congress of the United States has exclusive jurisdiction
and control under the federal constitution.
2. Same — rights of patentees derived exclusively under the laws of Con-
gress. The monopoly or exclusive right of making, using and selling the
improvement invented, and which is secured by letters patent, is created
by act of Congress, and no rights can be acquired under such letters,
except such as are authorized by statute, and in the manner the statute
prescribes.
3. The right to vend necessarily implies the power to do so wherever
the jurisdiction of the authority conferring the right extends. The power
to regulate and control a right derived under national grant, by State leg-
islation, necessarily concedes the supremacy of the latter. If a State has
the power to regulate the sales of patent rights, there is nothing to pre-
vent it from entirely prohibiting the same.
4. Same — law discriminating against notes taken on sales. It is un-
doubtedly within the power of the legislature to prescribe the form and
declare the effect of negotiable instruments, but it has not the constitu-
tional power to discriminate prejudicially against promissory notes taken
on sales of patent rights, as such legislation tends, to a certain extent, to
destroy the right granted by Congress to sell rights with the same free-
dom that may be exercised in regard to any other property, according to
the common and usual course of trade.
5. If a patentee complies with the act of Congress, which is para-
mount in respect to the rights and privileges secured to him, he will
have the right to go into the open market, anywhere within the United
States, and sell his property in the invention, notwithstanding any State
law to the contrary.
6. Parol evidence — varying written contract. Where the contract of
the parties is reduced to writing, parol evidence, offered to show a different
contract from that shown by the writing, is properly excluded.
Appeal from the Circuit Court of Mercer county ; the Hon.
Geo. W. Pleasants, Judge, presiding.
110 Hollida & Ball v. Hunt. . [Sept. T.
Opinion of the Court.
This was an action of assumpsit, by William H. Hunt,
against Hollida & Ball, upon a promissory note given by the
latter to Charles T. Davison, and assigned by him to plaintiff.
The plaintiff recovered in the court below, and the defendants
appealed.
Messrs. Pepper & Wilson, for the appellants.
Messrs. Bassett & Connell, for the appellee.
Mr. Justice Scholfield delivered the opinion of the
Court :
The question is presented, by the first error assigned,
whether the act entitled "An act to regulate the sale of pat-
ent rights, and to prevent frauds connected therewith," ap-
proved March 25, 1869, can be sustained as a valid and con-
stitutional enactment.
The substance of its several provisions is as follows :
The first section makes it unlawful for any person to sell,
barter, or offer to sell or barter, in any county in the State,
any patent right, without first making the affidavit and proof
required by the second section.
The second section requires any person desiring or intend-
ing to barter or sell any patent right, before offering to barter
or sell the same, to submit to the clerk of the county court
of the county in which he desires to pursue such business,
for his examination, the letters patent, or a certified copy
thereof, and his authority to sell or barter the right so pat-
ented, and, at the same time, make a prescribed affidavit;
and if such clerk be satisfied that the right so intended to be
sold or bartered has not been revoked or annulled, and that
the applicant is duly empowered to sell the same within such
county, etc., the clerk shall record the affidavit and letters
patent, and give a certificate thereof.
The third section requires any person to whom such certi-
ficate may be issued, to exhibit the same on demand.
1873.] Hollida & Ball v. Hunt. Ill
Opinion of the Court.
The fourth section provides that there shall be written or
printed in every promise or obligation in writing, the consid-
eration of which, in whole or in part, shall be a patent right,
the words, " given for a patent right;" and all such obliga-
tions or promises, if transferred, shall be subject to all
defenses, as if owned by the original promisee.
The fifth section imposes penalties for a failure to comply
with the preceding sections.
The sixth section requires the payment of a fee of $3 to
the county clerk, for his services in taking proof.
The eighth clause of section 8, article 1 of the constitution
of the United States, confers authority upon Congress " to pro-
mote the progress of science and useful arts, by securing, for
limited times, to authors and inventors, the exclusive right
to their respective writings and discoveries. "
The power thus conferred has been exercised by Congress
since the organization of the government; and, without under-
taking to notice the various provisions of the statutes of the
United States relating to the subject, it is sufficient to say
these provisions fully prescribe under what circumstances and
in what manner patents shall be issued; how they maybe
transferred, and the character and extent of the rights in-
vested in the patentee or his assignees.
When the patent is granted, the rights of the patentee are
complete. He has then a property right in it, which can not
even be impaired by a subsequent repeal of the law under
which it was granted. McClurg v. King stand, 1 Howard, 206.
" The monopoly granted to the patentee," says Taney, C. J.,
in Gayler v. Wilder, 10 Howard, 494, " is for one entire thing :
it is the exclusive right of making, using, and vending to
others to be used, the improvement he has invented, and for
which the patent is granted. The monopoly did not exist at
common law, and the right, therefore, which may be exercised
under it can not be regulated by the rules of the common law.
It is created by the act of Congress, and no rights can be
112 Hollida & Ball v. Hunt. , [Sept. T.
Opinion of the Court.
acquired under it unless authorized by statute, and in the
manner the statute prescribes."
The right to vend necessarily implies the power to do so
wherever the jurisdiction of the authority conferring the
right extends. To say that a right exists, yet it can only be
exercised on such terms and conditions as may be imposed
by an authority other than that conferring the right, neces-
sarily concedes the supremacy of the latter.
It was said by Marshall, C. J., in McCulloch v. The State
of Maryland, 4 Wheaton, 426: "The great principle is, the
constitution, and the laws made in pursuance thereof, are-
supreme; that they control the constitutions and laws of the
respective States, and can not be controlled by them. From
this, which may be almost termed an axiom, other proposi-
tions are deduced as corollaries. * * * 1st, That a power
to create implies a power to preserve. 2d, That a power to
destroy, if wielded by a different hand, is hostile to, and
incompatible with, these powers to create and preserve. 3d,
That where this repugnance exists, that authority which is
supreme must control, not yield to that over which it is
supreme."
If this legislation can be sustained, upon the same princi-
ciple nothing can be found to prevent the State from entirely
prohibiting the sale of patent rights; and if this may be done
here, it may also be done in every other State in the Union,
and thus we would have the spectacle of a right granted
under the laws of the United States, pursuant to an express
provision of the constitution, annihilated by the laws of the
several States.
It is conceded in the argument that the first, second and
third sections of the act can not be sustained; but it is
insisted that the same objections do not exist against the
fourth section, for, it is claimed, it is competent for the legis-
lature to require that negotiable instruments shall express
upon their face for what they are given, and to declare what
shall be the legal effect of their assignment.
1873.] Hollida & Ball v. Hunt. 113
Opinion of the Court.
A majority of the court are of opinion that, while it is
undoubtedly within the power of the legislature to prescribe
the form and declare the effect of negotiable instruments, this
section can not be regarded as limited to this object. It has
nothing to do with negotiable instruments in general, but is
exclusively restricted to such as are given in whole or in
part, for a patent right, and deprives them of one of the most
important attributes of negotiability. It is a marked dis-
crimination against the traffic in patent rights, which can not
fail to seriously prejudice and impair the rights of patentees
and their assignees.
The right to vend, guaranteed by the general government
to patentees, is to traffic and sell with the same freedom that
may be exercised in regard to any and all other property,
according to the common and usual course of trade and
business, and whatever tends to prevent this, necessarily tends,
to that extent, to destroy the right granted.
Such legislation is repugnant to, and inconsistent with,
the powers exercised by Congress with regard to patent rights,
and can not be upheld. MeCulloch v. Mainland, supra-, Gib-
bons v. Ogden, 9 Wheaton, 1 ; Brown v. Maryland, 12 id. 419 ;
Sinnot et al. v. Davenport, 22 Howard, 227 ; Ward v. Mary-
land, 12 Wallace, 418 ; Woodruff v. Perham, 8 id. 130.
A similar enactment of the legislature of the State of
Indiana, was held, by the Circuit Court of the United States
for that district, unconstitutional. The case was that of
Major J. Robinson, ex parte, and the opinion was delivered
by Mr. Justice Davis, of the Supreme Court of the United
States. We quote from the opinion as published in 2d Bis-
selPs Reports, 309. He said : " The property in inventions
exists by virtue of the law of Congress, and no State has a
right to interfere with its enjoyment, or to annex conditions
to the grant. If the patentee complies with the law of Con-
gress on the subject, he has a right to go into the open mar-
ket, anywhere within the United States, and sell his property.
If this were not so, it is easy to see that a State could impose
8— 70th III.
114 Alexander u. Hoffman et al. [Sept. T.
Syllabus.
terms which would result in a prohibition of the sales of this
species of property within its borders, and in this way nul-
lify the laws of Congress, which regulate its transfer, and
destroy the power conferred upon Congress by the constitu-
tion."
From the views expressed, it is impossible to sustain the
validity of either section of this statute. There was no error
in sustaining the demurrer to the pleas.
The only other error assigned relates to the exclusion of
evidence offered by appellant. The contract between the
parties was reduced to writing. The evidence offered was
for the purpose of proving, by parol, a different contract from
that shown by the writing. This was inadmissible, and the
court properly excluded the evidence.
The judgment is affirmed.
Judgment affirmed.
Granville W. Alexander
v.
Francis A. Hoffman et al.
1. Parties in chancery. The general rule is, that all parties in in-
terest, and whose rights may be affected by a decree, must be made par-
ties to the bill.
2. Same — hill for specific performance. Where a party, claiming to
have succeeded to the equitable rights of a purchaser of land, by sale on
execution against him, seeks a specific execution of the contract against
the vendor, the original purchaser is a necessary party to the bill.
3. Witness — competency — against parties defending as heirs. A person
who is a necessary party to a bill, and who, if a party, would not be com-
petent to testify as against parties defending as heirs, falls within the
meaning of the statute, and will be treated as incompetent, the same as if
he were a party to the suit.
4. Same — vendee, as against heirs of deceased owner, on bill for specific
performance. On bill for specific performance by a party succeeding to
the rights of a vendee of land, against the trustee of the owner, and the
heirs of the owner, to compel the execution of a deed, the vendee, whether
1873.] Alexander v. Hoffman et ah 115
Opinion of the Court.
a party to the bill or not, is not a competent witness to prove payments
to and conversations with the deceased owner or cestui que trust in his
lifetime.
5. Specific performance — delay and laches unexplained. A court, of
equity will not lend its aid to enforce the specific performance of a con-
tract, if the party seeking the aid of the court has been guilty of great
delay in performing it, or in filing his bill, or in prosecuting his suit after
the bill is filed.
6. Where a bill for the specific performance of a contract of sale was
filed twelve years after the last payment became due, and ten years after
the complainant acquired the vendee's interest, and the proof failed to
show clearly that the deferred payments had ever been made : Held, that
the bill was properly dismissed.
7. Same — discretionary with the court. A bill for specific performance
is addressed to the sound legal discretion of the chancellor, and although
a legal contract may exist, it will not be decreed as a matter of course.
Appeal from the Superior Court of Cook county ; the Hon,
Joseph E. Gary, Judge, presiding.
This was a bill in chancery, filed by Granville W. Alex-
ander against Francis A. Hoffman and the heirs of Andrew
J. Miller, deceased, for specific performance. The opinion of
the court states the substauce of the leading facts.
Messrs. Gookins & Koberts, and Messrs. Lawrence, Win-
ston, Campbell & Lawrence, for the appellant.
Mr. Obadiah Jackson, for the appellees.
Mr. Justice Craig delivered the opinion of the Court :
This was a bill in chancery, filed by appellant against
appellees, to enforce the specific performance of a contract for
the sale of a certain tract of land, in Chicago.
It is alleged in the bill, that Hoffman, who held the land
in trust for one Andrew J. Miller, on the 16th day of Octo-
ber, 1854, sold it, by contract in writing, to one John Ades,
for $1200, |400 paid down, $400 to be paid in one year, $200
in two years, and $200 in three years ; property to be con-
veyed on payment of the purchase money; that Ades paid
the purchase money to Hoffman and to Miller.
116 Alexander v. Hoffman et al. [Sept. T.
Opinion of the Court.
It is also alleged, that Joseph G. Alexander, in 1858, recov-
ered a judgment in the Cook County Court of Common Pleas,
against Ades; that an execution was issued on the judgment,
upon which the land was sold by the sheriff to one Daniel B.
Heartt, and, not having been redeemed, it was deeded to him
by the sheriff; that Heartt conveyed to appellant.
This bill was filed May 27th, 1869. The answer admits
Hoffman held the legal title, but that he held it as security
for money Miller had borrowed of him; denies all knowledge
of the contract between Hoffman and Ades ; avers, if any
such contract was made, it was long since abandoned by Ades,
and forfeited and cancelled by Hoffman ; insists that Ades is
a necessary party to the bill, and the rights of the defendants
can not be adjudged without he is made a party; denies all
knowledge of the judgment or sale thereunder. The answer
further states that, from 1852 until the time of his death,
Miller was in possession of the property, claiming it as his
own, and paid all taxes thereon ; that appellees, his heirs,
since his death, have continued in possession and paid all
taxes, and are still in possession, claiming the land ; insists
that, from lapse of time, complainant's claim is stale, and, on
that ground, ought not to be enforced.
Replication was filed, cause heard on proofs, and a decree
entered dismissing the bill.
The first question presented for our consideration is, was
Ades a necessary party to the bill ?
The general rule is, all persons in interest, and whose rights
may be affected, should be made parties to the bill.
The theory of complainants was, that Ades had purchased
this land, and, at one time, held it by contract entitled to a
deed. They say he never transferred his contract or conveyed
the land, but it was taken from him by sale on execution issued
on a judgment, and that they acquired his title in that way.
The defendants had a right to insist, before a decree should
be rendered against them, that complainant should show a
valid judgment and execution against Ades. It was clearly
1873.] Alexander v. Hoffman etal. 117
Opinion of the Court.
the right of Ades to contest the validity of the judgment and
execution. Unless the judgment and execution were valid,
then complainant had no standing in court. The court, in
passing upon their validity, would be adjudicating upon the
rights of Ades, when he was not before the court. Had the
court rendered a decree in favor of complainant, it would
not have been binding on Ades. For aught that we see, he
could, on the next day after the court had rendered a decree,
file his own bill, and the same matters would have been sub-
ject to a readjudication.
The case of Lane v. Ershine, 13 111. 501, relied upon by
appellant, is not decisive of this question.
In the case of Packwood v. Gridley, 39 111. 388, where a
bill was filed for a specific performance, based upon a contract
of sale, and where the vendor, subsequent to making sale by
a contract, had conveyed the premises by deed, this court
held, that the vendor was a necessary party, and while the
question is not fully discussed in the opinion, we must regard
it as authority in this case.
Ades being, then, a necessary party to the bill, the next
point that presents itself is, was his evidence admissible, which
related to payments made to and conversations with Andrew
J. Miller, he being dead, and the suit predicated on a contract
made by him, in his lifetime, against his legal representatives?
Section 1 of the law of 1867 provides, that parties to the
record, and in interest, may testify. Section 2 of the same
act declares, no party to any civil action, suit or proceeding,
or person directly interested in the result thereof, shall be
allowed to testify therein of his own motion, or in his own
behalf, by virtue of the foregoing section, when any adverse
party sues or defends as executor, administrator, heir, legatee
or devisee of any deceased person, unless when called as a
witness by such adverse party, etc., except in certain specified
cases, but this evidence does not fall within any of the excep-
tions.
118 Alexander v. Hoffman et al. [Sept. T.
Opinion of the Court.
It is very clear, under this statute, had Ades been a party
to the bill, his evidence could not have been admitted. The
language of the section: no 'party to any civil action, suit or
proceeding, or person directly interested in the result thereof, shall
be allowed to testify, is not of doubtful meaning.
There is manifest justice in this statute. While both par-
ties to a transaction are living, they are upon a perfect equal-
ity, and can each testify. When one is dead, the other is not
permitted to give evidence, and thus take advantage of the
heirs of the deceased, who are wholly ignorant of the facts.
Appellant can not have the benefit of the evidence of
Ades on the ground that he was not a party to the record, —
that would permit them to do, indirectly, what they could not
do directly. The law required him to be made a party to the
bill, and we will treat his evidence in the same manner as if
he was a party.
This view of the case leaves the record in this position :
About the middle of October, 1854, Ades took a contract of
purchase for the land, paid $400 down, agreed to pay $400 in
one, $200 in two, and $200 in three years. A deed was to be
made when the whole purchase money was paid. The evi-
dence fails to show the deferred payments have ever been
made. Andrew J. Miller was in the possession of the land at
the time of his death, in 1864, and appellees, his heirs, have
held the possession ever since, and all the time claimed to
own the land.
So far as the record shows, Ades has set up no claim to the
land since 1857. The last act of his, from which we can infer
he was claiming the land, is this: he testifies, in 1857 he paid
the taxes for 1856. In this, however, he is evidently mistaken,
for Mr. Jackson testifies, on examination of the record, in pre-
paring a defense to the suit, he found the land was sold in
1857 for the taxes of 1856.
In 1858, the land was sold on the judgment. In fifteen
months from that time, Heartt, who bid off the land for
Alexander, was entitled to a deed, yet neither Heartt nor his
1873.] Alexander v. Hoffman et al. 119
Opinion of the Court.
grantees are heard to set up any claim or title to the land,
under this sale or otherwise, until 1869. The bill was filed
in 1869, twelve years after the last payment was due on the
contract, and ten years after complainant's title had matured
on the judgment. This bill, filed against the heirs of Andrew
J. Miller, to enforce a specific performance of the contract,
was pending in the Superior Court until the December term,
1872, when a trial was finally had, and the bill dismissed.
We are now asked by complainant to reverse this decree.
This we can not do without violating all well settled prin-
ciples of equity in this class of cases.
The laches of Ades, and complainant who claims under
him, is inexcusable. Equity always discountenances laches.
1 Story Eq. Jur. sec. 64.
In Milward v. The Earl Thanet, 5 Yesey, 720, Lord Alvan-
ley said : A party can not call upon a court of equity for a
specific performance, unless he has shown himself ready, de-
sirous, prompt and eager.
It may be regarded as well settled, that a court of equity
will not lend its aid to enforce the specific performance of a
contract, where the party seeking the aid of the court has
been guilty of great delay in performing it, or in filing his
bill to enforce it, or in prosecuting his suit after the bill has
been filed. These facts constitute such laches as can not be
overlooked by courts of equity. Fry on Specific Performance,
218; Hough v. Coughlan et al. 41 111. 134.
A bill for a specific performance is addressed to the sound
legal discretion of the chancellor, and although a legal con-
tract may exist, it will not be decreed as a matter of course.
Frisby v. Ballance, 4 Scam. 287 ; Hough v. Coughlan, supra.
After a long period has elapsed, courts will be cautious in
enforcing the specific performance of a contract, when there
is any real doubt about its existence and terms, and especially
where the contract is lost or destroyed. Rector v. Rector, 3
Gilman, 119.
120 Winslow v. Benedict. [Sept. T.
Opinion of the Court.
We perceive nothing in this record which would warrant
the court, in the exercise of a sound legal discretion, to decree
a specific performance of the contract.
The decree of the Superior Court will be affirmed.
Decree affirmed.
Lawson A. Winslow
v.
A. F. Benedict.
Exemption — of wages from garnishment. The wages of a party, to the
extent of $25, are exempt from garnishment, under the statute of 1872,
where he is the head of a family, and residing with the same in this
State, even though he may intend to remove out of the State.
Appeal from the Court of Common Pleas of the City of
Aurora; the Hon. Richard G. Montony, Judge, presiding.
Mr. M. O. Southworth, for the appellant.
Mr. Frank M. Annis, for the appellee.
Mr. Chief Justice Breese delivered the opinion of the
Court :
A writ of attachment was sued out of the office of a justice
of the peace of Kane county, by Winslow, appellant, against
one Daniel Kipp, claiming thirty-five dollars for medical ser-
vices rendered by Winslow to Kipp. Judgment was rendered
against Kipp for this amount. Simultaneously, process of
garnishment was served on Benedict, alleged to be a debtor
of Kipp, who appeared and acknowledged he was indebted
to Kipp in the sum of twenty-five dollars and fifty cents, as
wages for his work and services as a journeyman painter.
Kipp claimed that twenty-five dollars of this amount was
exempt from garnishment, by the act of 1872 in regard to gar-
1873.] Buckingham etal. v. Fisher. 121
Syllabus.
nishment. The justice allowed this defense, and rendered judg-
ment against Benedict, the garnishee, for fifty cents. On appeal
to the Court of Common Pleas of the City of Aurora, by the
plaintiff, it was then agreed, by the parties, that Kipp was the
head of a family, and residing with it, at the time the writ
of attachment and garnishee process was sued out, and the
court gave judgment for fifty cents, the excess over and above
the amount claimed to be exempt.
To reverse this judgment, the plaintiff appeals to this court.
This case is too plain for argument. Section 14 of the act
in regard to garnishment, Laws of 1872, p. 465, is as follows:
"The wages and services of a defendant, being the head of
a family, and residing with the same, to an amount not exceed-
ing twenty-five dollars, shall be exempt from garnishment. In
case the wages or services of such defendant, in the hands of
a garnishee, shall exceed twenty-five dollars, judgment shall
be given only for the balance above that amount."
Though the defendant in the attachment may have intended
to remove out of the State, still, whilst here, residing with his
family, he was entitled to the benefit of this section of the
statute. There are no limitations or qualifications in the
statute and we can not add them.
The judgment is affirmed.
Judgment affirmed.
John Buckingham et al.
August Fishek.
1. Warehouseman and wharfinger. A person doing a private busi-
ness as a warehouseman, and keeping a private wharf, and not acting
under any license or statutory authority, is under no legal duty to place
guards on the wharf to prevent teams from falling into the water, or to
provide places for hitching horses at his warehouse, and is not liable for
an injury growing out of the want of such provision being made.
122 Buckingham et ah v. Fisher. [Sept. T.
Statement of the case.
2. Same — not held to the care required of common carriers. Common
carriers are held to the highest degree of care for the safety of passengers
that is consistent with the prosecution of their business, and are made insu-
rers of property intrusted to them, except as against the acts of God or
the public enemy. But an ordinary warehouseman is only liable for ordi-
nary care, or such care as prudent men usually exercise over their own
property.
3. Same — not held to same care, in respect to approaches, as common car-
rievs. Railway companies are bound to provide, not only safe engines,
cars, track and other machinery and servants, but also to provide and
maintain safe platforms and approaches to their cars ; and carriers by
water, safe approaches to their vessels ; but a private warehouseman or
wharfinger is under no such obligation. He, like a merchant, blacksmith
or miller, is only liable for ordinary care in the structure of his buildings
and appurtenances.
4. Same — may be liable where he makes dangerous approaches. If private
warehousemen, merchants, blacksmiths, millers, or other persons engaged
in business, construct approaches to their places of business, knowing
the same to be defective, or have trap-doors known to be unsafe, where
their customers must necessarily pass, and such defects are concealed, or
not apparent, it seems they will be liable for any injury resulting there-
from.
5. Unless a party is under some public duty to repair a way, even
though to his place of business, he will not be liable, for failing to do so,
for injury thereby caused to others.
6. Contributory negligence. Where the servant of the plaintiff
drove plaintiff's team to defendant's warehouse and wharf, and hitched
the horses to a clog, but wound his lines around the hub of the wagon, so
that, when the horses backed, the lines became shortened, and thus caused
them to back into the river near by, where they were drowned, and the
wagon and harness lost: Held, that, owing to the negligence of the ser-
vant, the plaintiff could not recover.
Appeal from the Circuit Court of Cook county ; the Hon.
John G. Rogers, Judge, presiding.
This was an action on the case, by August Fisher against
John Buckingham, Ebenezer Buckingham and the Illinois
Central Railroad Company. The opinion of the court con-
tains a substantial statement of the facts of the case. A trial
was had in the circuit court, resulting in a verdict finding
the two Buckinghams guilty, and assessing the plaintiff's
1873.] Buckingham et al. v. Fisher. 123
Opinion of the Court.
damages at $850, and finding the railroad company not guilty.
The court, overruling a motion for a new trial, rendered judg-
ment upon the verdict, and the Buckingkams appealed.
Mr. John N. Jewett, for the appellants.
Messrs. Story & King, for the appellee.
Mr. Justice Walker delivered the opinion of the Court :
Appellants, when this suit was brought, held a lease from
the Illinois Central Railroad Company, of a warehouse and
the ground upon which the house was erected. They were
using it for the storage of grain consigned to them and other
persons in the city. The railway company discharged the
grain it transferred from the country to the city, into this
warehouse. It was located on the bank of the Chicago river,
on the margin of which there was a dock at which lake ves-
sels landed, and received cargoes of grain from the warehouse,
for shipment to the eastern markets. There was an open
space between the warehouse and the dock, over which teams
passed to receive grain stored in the warehouse, for delivery
in the city. Such teams passed over the narrow space left for
the purpose, on the west, between the warehouse and the
river, or dock line, and turned on a space about forty feet
square, at the north end of the building. After turning, the
teams were driven near to the door of appellants' office, where
the driver, on presenting his order, received from the clerk a
ticket for a wagon load of grain, when he again drove on the
narrow strip, to the west of the warehouse, and received his
load of grain. Teamsters going there for grain, had, there-
fore, to leave their teams whilst they went into the office to
procure tickets, as they were only delivered to teamsters
when their wagons were at the warehouse to receive grain.
Whether places for hitching teams, whilst drivers were in
the office procuring tickets, were provided, seems to be in-
volved in doubt, as the evidence on that point is very con-
flicting.
124 Buckingham et at v. Fisher. [Sept. T.
Opinion of the Court.
Appellee, having purchased some grain in the warehouse,
in the latter part of April, or first of May, 1871, sent his
team to remove it, and whilst the driver was in the office,
according to the rules adopted by appellants, to receive a
ticket for a load of grain, his horses, which had been hitched
to a clog weighing 22 pounds, commenced backing, and be-
fore the driver could reach them, they backed over the edge
of the wharf into the river, and were drowned, and the wagon
and harness were lost. The evidence shows that there was
no fender or guard of any kind on the edge of the wharf, to
prevent the wheels of the wagon from running off and into
the river. This action was brought to recover for the loss of
the team, wagon and harness, upon the hypothesis that it was
the duty of appellants to place guards or fenders on the edge
of the wharf, as a protection to teams from accident, and for
the alleged negligence in not providing proper facilities for
hitching teams going there for grain.
There is nothing shown in this case from which it appears
that appellants were under any legal duty to place guards on
the wharf, or to provide means for hitching horses at their
warehouse. There is no such statutory requirement, nor are
we aware of any common law rule which imposes such a duty
on appellants. They were not acting under any license or
statutory authority, but were pursuing a private business as
private persons, owing, so far as the evidence shows, no special
duty to the public in reference to this wharf. The warehouse
was private property, or at least the lease was held by appel-
lants as individual property, and used, as other private ware-
houses, for the storage of grain.
They were not occupying the relation of common carriers,
to whom persons and property are entrusted for transporta-
tion. In that class of employments, the law has imposed
higher obligations, and demands a greater degree of diligence
than in ordinary pursuits. Persons engaged in the usual
avocations of life are only held to reasonable care and dili-
gence, whilst carriers are held to the highest degree of care
1873.] Buckingham etal. v. Fisher. 125
Opinion of the Court.
which the mind is capable of exercising, for the safety of per-
sons entrusted to their care to be carried, that is consistent
with the exercise of their business, and a carrier of property
is an insurer against all casualties, except the acts of God or
the public enemy. But an ordinary warehouseman is only
liable for ordinary care — such pare as prudent men usually
exercise over their own property. Thus it is seen there is a
broad difference between the liability of a carrier and a ware-
houseman, as to the custody of goods.
The same difference seems to exist as to the means of
approaching the warehouse, or the vessel, train, or other means
of transportation. A railway company is bound to not only
provide safe engines, cars, track and other machinery and ser-
vants, but they are bound to provide and maintain safe plat-
forms and approaches to the cars on their road. Carriers
by water are also required to furnish safe approaches to their
vessels. Again, a wharfinger is not distinguishable, on prin-
ciple, from a warehouseman, and has not been distinguished
in adjudged cases; whilst the case of a carrier has always been
treated as an excepted case, turning on principles peculiar to
public policy. Story on Bailments, § 452. If, then, appel-
lants be treated as warehousemen, or as wharfingers, their
obligation was only that of ordinary care for property en-
trusted to them.
We have been referred to no case in which a warehouseman
has been held liable for failing to provide safe approaches to
his warehouse, nor is it believed that any can be found. It
would not be consistent with the analogies of the law, to hold
that a person, who is only held to ordinary care in conducting
his business, should be held to an extraordinary degree of
care in protecting persons coming to his place to transact
business with him. He, like a merchant, blacksmith, miller,
or other person engaged in business, is only liable for ordi-
nary care in the structure of their buildings and their appur-
tenances. If such persons should construct approaches they
knew to be defective, or were to have trap-doors known to
126 Buckingham et al. v. Fisher. [Sept. T.
Opinion of the Court.
be unsafe, and such defects were not apparent, but concealed,
where their customers would necessarily pass, and injury were
to result therefrom, they would probably be liable, but other-
wise, if reasonable care was employed in their construction.
The cases referred to in appellee's brief relate to common
carriers, to officers whose duty it was to keep public passways
in repair, or where the law had imposed it as a duty to the
public. The case most nearly analogous to this, is Radiuay
v. Briggs, 37 1ST. Y. R. 256 ; but in that case the assignee of
the wharf had covenanted with the city to keep the wharves
in good condition and in safe and proper repair, including,
especially, the string pieces and other superficial portions
thereof, for safe usage, etc. In that case, it appears the wharf
was a public one, which the city regarded as requiring them
to maintain and keep in repair by taking a covenant from
their assignee to repair and to maintain string pieces. This,
then, distinguishes that case from this, as there is nothing to
show that appellants were required to place string pieces on
the edge of the wharf, or that they ever recognized any such
duty. That case is fully sustained by authority, so far as it
relates to the bringing an action by the person injured.
In the case of The Mayor of Lyme Regis v. Henley, 27 Eng.
Com. Law R. 366, it was held, that, where the King made a
grant for the public benefit, and imposed public duties, and
the grant was accepted, the duties might be enforced by in-
dictment, or by suit in the name of individuals peculiarly
injured.
In the New York case, the grant was made by the city, and
it imposed the duty on the assignee of maintaining suitable
string-pieces on the wharf, and he not only accepted the grant,
but covenanted for the performance of the duty thus imposed.
Hence, on the authority of The Mayor of Lyme Regis v. Hen-
ley, supra, the person injured by the non-performance of the
duty, had his action against the assignee. That case was
much discussed, and the judgment of the court ;below was
affirmed in the Court of Common Pleas, the King's Bench
1873.] Buckingham et al. v. Fisher. 127
Opinion of the Court.
and in the House of Lords, and may be regarded as entitled
to weight as authority on the question.
No rule is more firmly established than that a person, who
is not under some public duty to repair a way, is not liable
for failing to do so, in case injury results to others. And in
this case no such duty appears. Appellant permitted persons
to come upon the wharf, but received nothing therefor. Had
it been a source of emolument, there would be more plausi-
bility in the claim, but we are not called upon to determine
that question, as it is not now before us for decision^
Again, appellee's teamster was well acquainted with the
place, and must be presumed to have known its dangers. He
had been there frequently before the accident, and if of ordi-
nary intelligence, he could not but have understood its haz-
ards. And where one voluntarily puts himself or his prop-
erty in a place of known danger, he is held to assume all the
risks incident to the position. Such was the case with the
servant of appellee in this case. He should have used pre-
cautions equal to the danger he incurred, but in this we think
he failed. A careful examination of the evidence in the case
strongly impresses us with the belief that the teamster did
not use the necessary care in securing the team when he went
into the office. It is true, he swears that he hitched them to
a clog of about 22 pounds weight. This might, and no
doubt would, have been all that was required under ordinary
circumstances, had he done nothing to produce the misfortune ;
but we infer that he must have wound his lines around the
hub of the fore wheel of his wagon, and if so, and the horses
backed, the lines, by winding up on the hub, would become
shortened, and pull the horses back, and the further they
backed, the tighter the lines would draw, until they either
would break, or the horses would back over the wharf into
the river. This is believed to be a careless and dangerous
habit of many teamsters, and would inevitably produce the
result that occurred in this case. We can imagine no other
cause for the accident, as there was nothing shown to have
128 Claek et al. v. Pope et al. [Sept. T.
Syllabus.
occurred in front of the horses to have frightened them to go
backwards, and had noise or other cause occurred behind
them, their effort would have been to have gone forward, or
if at either side, they would have turned from irt, and not
backed.
In any view we have been able to consider the case, we can
see no grounds of recovery, and the judgment must be re-
versed.
Judgment reversed.
James Claek et al.
V.
Josiah Pope et al.
1. Building contract — waiver of right to certificate of architects. Where
a contract for the building of a church provides that the work shall be
done in a good and workmanlike manner, to the satisfaction of the
architects furnishing the plans and specifications, to be certified under
their hands, the church committee are under no obligation to accept the
building without such certificate, but this is a privilege which they may
waive.
2. Same — responsibility of contractors for defects. Where parties
contracting to build a church, construct the same in a workmanlike
manner, according to the plans referred to in the contract, or, in case
of any material deviation, where it is made with the consent of the other
party, they will be under no responsibility for its subsequent destruction,
whether caused by its own inherent weakness in the mode of construc-
tion, or from the violence of storms.
3. Same — contractors become guarantors when they deviate from the
working plans. The contractors of a building have no right to depart
from the working plans which are made a part of their contract, without
consent, and if they do, they will become guarantors of the strength and
safety of the building.
i. An express contract admits of no departure from its terms, unless
by the mutual consent of the parties.
5. Same — contractor is not excused for not understanding plans. The
fact that a party has contracted to erect a building after certain plans,
drawings and specifications, implies that he understands them, and the
1873.] Clark et al. v. Pope et al. 129
Opinion of the Court.
law will not allow him to escape liability on the ground that he exercised
ordinary care and skill to understand the same, and failed to comprehend
them.
6. In such a case, where the work is to be done under the direction of
an architect, if there is obscurity in the drawings and specifications, the
contractors should apply to the architect for directions. If they rely on
their own judgment, and a mistake occurs, they must bear the conse-
quences.
Appeal from the Circuit Court of La Salle county; the
Hon. Edwin S. Leland, Judge, presiding.
This was "an action of debt, brought by Josiah Pope and
George Jekyl, against James Clark, John M. Holland and
Louis P. Rugg, to recover the balance due on a contract for
building a church.
The defendants pleaded nil debet, and special pleas setting
up damages for defects in the work.
A trial was had, resulting in a verdict and judgment in
favor of the plaintiffs for $414. The defendants moved for
a new trial, which the court overruled.
Messrs. Bushnell & Bull, for the appellants.
Messrs. Blanchard & Silver, for the appellees.
Mr. Justice Scott delivered the opinion of the Court:
This action was brought to recover the balance alleged to
be due for the erection of a church edifice. The contract
was made with the appellants as a building committee on
behalf of the First Congregational Society of the village of
Utica.
Appellees insist, the work strictly within the contract was
completed as early as December, 1870, or January follow-
ing; that it was accepted by the society, and the basement
room occupied for the purposes for which it was intended,
without objections as to the manner in which the work had
been done. It was not contemplated by the agreement,
9— 70th III.
130 Clark et al. v. Pope et ah [Sept. T.
Opinion of the Court.
appellees should complete the main audience room, situated
on the upper floor. It had never been finished or occupied.
In June following, the upper or main part of the building
was blown down by a violent storm that passed over the vil-
lage. The basement story retained its position, and was not
much injured. No other building in the village was damaged
except one that was crushed by the steeple of the church
building falling upon it.
The contract between the parties obligated appellees to do
the work in a good, substantial and workmanlike manner, to
the satisfaction of the architects who had furnished the plans
and specifications, "to be certified under the hands of Kin-
ney and Adler." No writing or certificate under the hands
of the architects was produced on the trial, but it was sought
to avoid the force of this clause of the agreement by showing
that the society had accepted the building without objection.
This is one of the controverted points in the case. It is
purely a question of fact, to be found by the jury, and it is
perhaps not proper we should remark upon it at this time.
The committee was under no obligations to accept the build-
ing until the builders had procured the writing or certificate
of the architects. It was, however, a stipulation for their
benefit, which they were at liberty to waive. If they had
any doubts whether the work had been properly done, it
was their privilege to insist the contractors should procure
the certificate of the architects.
No complaints were made prior to the destruction of the
building, the work had not been done in accordance with the
terms of the contract. Since then it is insisted the upper story
was not joined to the basement story in the manner indicated
on the plans furnished by the architects. The contract is silent
as to the manner the connection should be made, but the
working plans and specifications are made a part of the
agreement,and the controversy is, as to what they indicate.
Appellants claim, the plans required that the studding
of the upper story should rest upon the studding of the
1873.] Clark et al. v. Pope et at 131
Opinion of the Court.
lower story; that the ends of the joists should rest upon a
ribbon, and cover the point of connection between the stud-
ding of the upper and lower stories, and to be spiked to
both.
The architects insist the building would have been much
stronger, had it been constructed according to the plans fur-
nished by them. As they explain it, the ribbon, which was to
have been notched into the lower side of the joists, and extend-
ing clear around the building, would render it impossible for it
to be swayed in either direction, without the whole structure
going together. In the plans adopted by the contractors, it is
insisted the lower story was not braced at all. Hence, it is
contended there was but little to keep the upper part of the
building from being blown off, except its own weight.
On the other hand, appellees contend the plans indicate
that plates were to be placed upon the walls or top of the
studding of the lower story, and spiked thereto; that the
studding of the upper story was to rest upon these plates,
toenailed thereto; the joists to rest on the plates, toenailed
thereto, and spiked to the building. The latter plan was
adopted by the builders as being in conformity with the speci-
fications, and the building constructed accordingly.
There was a good deal of testimony offered by both parties
as to what the plans did really require to be done in making
the connection between the upper and basement stories.
Much of it is flatly contradictory. The witnesses claim to
be experts in their trade, and yet they differ widely in their
explanations of the working plans made part of the written
contract, and in their estimate of the relative strength of
buildings constructed after either plan.
We are always reluctant to disturb the finding of a jury on
a question of fact, and seldom do so if they have not been
misled by the instructions, whatever may be our own views
of the mere preponderance of the evidence. There must be
a clear preponderance of the evidence, to warrant a reversal
of the judgment for that reason. Under our practice, it is
132 Clark et al. v. Pope et al. [Sept. T.
Opinion of the Court.
the province of the jury, in civil causes, to find the facts,
under the instructions of the court as to the law, and a respect-
ful consideration should always be given to the verdict.
The controlling point in the case is, whether the building
was constructed substantially after the plans furnished by the
architects, or whether there was any marked departure, and
if so, was it by the consent of the building committee?
When it shall be established the building was constructed
in a workmanlike manner, after the plans furnished, or, if
there was any material deviation, it was made with the knowl-
edge and consent of the committee, there would be no respon-
sibility resting on the contractors, no matter from what cause
it was destroyed, whether from its own inherent weakness in
the mode of construction, or from the extraordinary violence
of the storm. Their undertaking was simply to do the work
with reasonable skill, after the designs furnished by the
architects. They were not guarantors as to the strength of
the edifice when finished, or its capacity to withstand the
violence of the winds.
These were the controverted questions in the case, and in
view of the fact there was a sharp conflict in the testimony
bearing on them, we think the second and fourth instruc-
tions given for appellees may have misled the jury.
In the second charge, the jury were told if appellees " de-
parted slightly from the plans, specifications and drawings,
yet, if such departure did not diminish the strength or value
of the building, nor contribute to its being blown down, that
such departure does not deprive them of their right to recover
in this action, if the contract appears, by the evidence, to have
been otherwise complied with."
The position assumed is untenable. The contractors had
no right to depart from the working plans made part of the
contract. If they did so, it was at their peril, and they would
become guarantors as to the strength and safety of the struc-
ture. The parties contracted to have it erected after certain
plans and specifications. This they were clearly entitled
1873.] Clark et al. v. Pope et al. 133
Opinion of the Court.
to have done. The drawings were made part of the agree-
ment.
The contractors could only discharge themselves from lia-
bility, by constructing the building in accordance therewith,
unless a deviation was mutually agreed upon.
But the objection to the fourth instruction is still more
manifest. It asserts the principle, if the contractors "exer-
cised ordinary care, diligence and skill" in the endeavor to
comprehend the drawing, and erect the church structure in
accordance therewith, that if they failed in some respects,
and such failure arose from the imperfections of the plans
that would have misled a mechanic of ordinary care and skill,
then they are not at fault, for that cause, if the work was
done in a good and workmanlike manner.
This is not a correct construction of the contract. The
agreement is, they shall perform the work to the "satisfaction,
and under the direction," of the architects. An express con-
tract admits of no departure from its terms, unless by the
consent of the party to be affected. Undoubtedly, the mechanic
is only bound to exercise ordinary care and skill in doing his
work, but that principle can have no application whatever to
his knowledge of the working plans and specifications. The
fact he has contracted to construct a building after certain
plans, drawings and specifications, implies that he does under-
stand them. The undertaking itself is upon the condition
that he has that skill that will enable him to comprehend
them, and the law will not permit him to escape liability on
the ground he has exercised ordinary care and skill in that
regard.
In the case at bar, if there was obscurity in the drawings
and specifications, it was the duty of the contractors, under
the agreement, to apply to the architects for "directions."
If they chose to rely on their own skill, and a mistake
occurred, they must bear the consequences. Considerations
of public policy demand that contractors shall be held to a
134 Lincoln v. Schwartz et al. [Sept. T.
Syllabus.
high degree of care in this respect. Any other rule would
be productive of mischievous results..
We have not deemed it necessary to remark upon all the
instructions asked by appellants which the court refused to
give. Upon another trial, it will, no doubt, be the pleasure
of the court to give such of them as are compatible with the
views expressed in this opinion.
It is insisted, the court erred in sustaining the demurrer to
the fourth plea filed by appellants. It was a question of law
whether the building committee entered into the contract on
their own, or on behalf of the First Congregational Society.
We think the court committed no error in construing it to
be an individual contract, -and hence the demurrer was prop-
erly sustained.
For the reasons indicated, the judgment will be reversed
and the cause remanded.
Judgment reversed.
Ezra B. Lincoln
v.
Jacob G. Schwartz et al.
1. Action — right to abandon contract and sue for part performance. In a
contract to furnish materials and do work on a building, where the em-
ployer refuses to pay for the work and material furnished, on the archi-
tect's certificate, as he has agreed to do, the employee will be justified in
abandoning the work, and he may recover for the work done and the
materials furnished.
2. Fraud — impeaching architects certificate. Where, by contract, the
owner of a building in process of erection was to pay the contractor for
his labor and materials as the work progressed, the fact that the work
specified in the architect's certificate lacked some $45 of being completed
will not be sufficient to impeach the certificate for fraud, and justify the
owner in refusing to pay for at least the work actually done.
3. Measure op damages — on partial performance. Where a party
was employed to do the whole work in the building of a house, at a given
1873.] Lincoln v. Schwartz et al. 135
Opinion of the Court.
price, to be paid for in installments, on an architect's certificate, and the
contractor abandoned the work for good cause, and, in a suit to recover^
for the work done and materials furnished, the court instructed the jury that
the plaintiff was entitled to recover their reasonable worth: Held, that as
the contract itself furnished no rule to determine the value of any specific
portion of the work, the instruction was not erroneous, nor in violation
of the principle that the special contract affords the rule of damages, so
far as it can be traced and followed.
4. Pbactice — placing cause on trial calendar. Where a rule of court
only authorizes a cause to be placed upon the trial calendar when at
issue, a cause was placed upon that calendar in which the general issue
was pleaded, and a special plea showing a breach by the plaintiff of the
contract sued on, but which alleged no sum as damages. The court re-
fused to strike the cause from the docket, on defendant's motion, and after
this the special plea was amended and replication filed, and a trial had:
Held, that as the cause was substantially at issue, the court did not err.
Appeal from the Circuit Court of Cook county; the Hon.
John G. Rogers, Judge, presiding.
This was an action of assumpsit, brought by Jacob G.
Schwartz and Conrad Kies, partners, etc., against Ezra B.
Lincoln, the declaration containing only the common counts.
The facts of the case appear in the opinion.
Mr. W. T. Burgess, for the appellant.
Messrs. Shorey & Norton, for the appellees.
Mr. Justice Sheldon delivered the opinion of the Court :
This was an action of general indebitatus assumpsit, brought
by Schwartz & Kies against Lincoln, to recover for work and
labor done and materials furnished. A verdict was rendered
in favor of the plaintiffs, in the court below, for $1000, upon
which judgment was entered, and the defendant appealed.
The main grounds of error assigned are, that the verdict
was against the evidence, and that an erroneous instruction
was given for the plaintiffs.
It was in evidence, that, in the summer of 1871, Schwartz
& Kies agreed to do certain mason work for Lincoln, about
136 Lincoln v. Schwaetz et aL [Sept. T.
Opinion of the Court.
a building he was erecting in Chicago, for an aggregate sum
of $2880, to be paid as the work progressed, on the architect's
certificates. The contract was made in writing, and partly
performed before the fire of Oct. 9, 1871. In that fire the
contract and plans and specifications were destroyed. Schwartz
& Kies had all the material on the ground, with a slight
exception, for completing the contract.
There is a conflict in the testimony of the parties as to
what took place immediately after the fire. The appellees
say, that Lincoln decided not to go on with the work. Lin-
coln denies that, and says he was ready to go on as soon as
the plans, etc., could be restored. Some two or three weeks
afterward, when there had been a considerable advance in the
price of labor and materials, the parties met at the architect's
office, and entered into an arrangement that the appellees
should go on with the work for the additional sum of $740,
to be added to the contract price. Appellees were to go on
immediately with the work, and a contract, in writing, was
to be drawn up by the architect, which he afterward did draw
up, and Lincoln signed the same, but Schwartz & Ivies, on
objections made to it, refused to sign it. They performed
several additional days' work, and applied to the architect for
a certificate. He inspected the work, and gave them a certi-
ficate for the amount of $700, which covered the stone foun-
dation entirely, less fifteen percent, and included some of the
brick that were on the ground, and not yet used;
Appellees testify that Lincoln refused to pay the certificate
because he had not the money, and after working some three
days longer they ceased work, because of Lincoln's refusal to
pay the certificate. Lincoln testifies that he was to pay noth-
ing until the first story was up. Appellees say he was to pay
as the work progressed.
The material was left on the ground, which Lincoln after-
ward used.
The work specified in the certificate lacked some $45 of
having been completed, and it is therefore claimed that the
1873.] Lincoln v. Schwartz el al. 137
Opinion of the Court.
certificate was fraudulent, and that Lincoln was not bound to
pay the same on presentation. The fact that the work speci-
fied in the certificate had not been entirely completed, was
known to the architect, and we do not regard it as sufficient
to impeach the certificate in the respect claimed. Lincoln,
under the testimony of the appellees, should have paid the
certificate, or at least a portion of it — all but the small un-
completed part of the work specified.
Defendant had in, it is true, a plea of set-off of damages
for the breach of the contract on the part of Schwartz & Kies,
but we are of opinion that, at least under their own testimony,
the appellees were justified in not going on with the work,
because of the default of Lincoln. Bannister v. Bead, 1 Gilm.
100, Withers v. Reynolds, 2 B. and Ad. 882.
The evidence in the case was conflicting. Upon its ex-
amination we do not find any such preponderance against the
finding of the jury as to authorize an interference with it, as
being against the weight of the evidence.
The instruction given for plaintiffs was, that, under the
facts therein set forth, the plaintiffs had a right to suspend
work on the building, and were entitled to recover the reason-
able worth of the material furnished and labor done. The
exception taken to the instruction is, as respects the rule of
recovery, that recovery could be had only for the value of the
work done according to the price, as regulated by the con-
tract.
It is not apparent how the prices of specific parts of the
work were regulated by the contract. The contract was, to
do the whole work for a specific sum of money, to be paid for
in installments, on the architect's certificates ; and the con-
tract furnished no rule to determine the value of any specific
portion of the work.
For anything disclosed in the evidence in the case, and as
applied thereto, we fail to perceive wherein the instruction
given can be held as in violation of the rule that the special
contract affords the rule of damages, so far as it can be traced
138 Mitchell v. The People. [Sept. T.
Syllabus.
and followed. Under the evidence it is not apparent that it
would have been any more favorable to the appellant, had the
rule of recovery been laid down as he contends that it should
have been.
It is urged that there was error in overruling the defend-
ant's motion in the court below, to strike the case from the
trial calendar.
By the rule of that court, a cause was only to be placed
upon that calendar when at issue.
The defendant, having first pleaded the general issue, some
time afterward pleaded specially, as a defense, the breach by
the plaintiffs of the original contract entered into between
the parties before the fire, omitting to allege any sum as dam-
ages, and the pleadings so remained until after the overruling
of said motion. The defendant thereupon took leave to amend
his special plea by inserting the sum claimed as damages.
The plaintiffs then filed a replication traversing the plea. The
cause was then tried, all the parties testifying, together with
the architect.
The court appears to have regarded the cause as substan-
tially at issue under its rule, when placed upon the trial
calendar.
We can not hold that there was error in this ruling of the
court.
The judgment must be affirmed.
Judgment affirmed.
Jonathan C. Mitchell
v.
The People of the State of Illinois.
Local laws — in respect to courts, abrogated by the new constitution. The
12th section of the act entitled "An act to provide sanitary measures and
health regulations for the city of Chicago," etc., approved February 16,
1873.] Mitchell v. The People. 139
Opinion of the Court.
1865, which authorizes the filing of an information, etc., is local, applying
to the practice in the Criminal Court of Cook county only, and is there-
fore abrogated by section 29 of article 6 of the new constitution, and no
trial and conviction can be had under such statute.
Writ of Error to the Criminal Court of Cook county;
the Hon. Lambert Tree, Judge, presiding.
This was an information by the State's Attorney of Cook
county against Jonathan C. Mitchell, charging the defendant
with being unlawfully engaged in rendering grease and putrid
and decayed animal matter, and in the business of slaughtering
animals in such a manner as to create offensive odors in the
city of Chicago. The opinion of the court presents the case
and its nature.
Messrs. Knowlton & Humphrey ville, for the plaintiff
in error.
Mr. James K. Edsall, Attorney General, for the People.
Mr. Justice Scholfield delivered the opinion of the
Court :
This was a prosecution against the plaintiff in error, in the
Criminal Court of Cook county, for maintaining a public
nuisance. Trial was had in that court, resulting in the con-
viction of plaintiff in error, which he now seeks to reverse by
this writ of error, upon the ground that the section of the
statute under which the prosecution was commenced and trial
had, was abrogated by the 29th section of the 6th article of
the constitution of 1870, and this is the only question pre-
sented for our consideration.
The section in question is the 12th, of an act entitled "An
act to provide sanitary measures and health regulations for the
city of Chicago, and to provide for the appointment of a health
officer for the city of Chicago," approved February 16, 1865,
and is as follows :
"If any person or persons, corporation or corporations,
140 Mitchell v. The People. [Sept. T.
Opinion of the Court.
shall be engaged in rendering any dead animals, or grease of
any description whatsoever, or in the manufacture, preparation
or storage of any offal, blood, or any other animal matter, or
in the slaughtering or feeding of any animals, or in any other
business tending to produce noxious or unwholesome matter,
within the city of Chicago, or within four miles of the limits
thereof, in such a manner as to create unwholesome or offen-
sive odors, it shall be the duty of the State's Attorney for Cook
county, upon a complaint in writing, and under oath, filed with
hiru, made by the health officer of said city, and whose duty
it shall be, having knowledge of the fact, to make such com-
plaint, or upon like complaint made by any three residents
and freeholders of Chicago, said complaint to set forth the
fact of the carrying on of a business producing unwholesome,
noxious or offensive odors, together with a description of the
premises where the same is conducted, and the name or names,
if the same can be ascertained, of the person or persons con-
ducting such business, to file an information in the name of
the people of Illinois, in any court of record in and for the
city of Chicago or county of Cook, against said establish-
ment, or the persons carrying on the same; and immediately
upon the filing of such information, process shall issue from the
court where such information shall be filed, directed to the
health officer of the city of Chicago, or to the sheriff of Cook
county, authorizing and requiring them, or either of them, to
take possession of the premises and fixtures where such busi-
ness is being conducted, and retain possession of the same
until a trial of said information shall be had, and to summon
the person or parties in said information named to appear
and answer the same forthwith; and it shall be the duty of
the court in which such information may be filed, to proceed
to the hearing of said information as soon as may be, giving
the same precedence of all other causes, except criminal busi-
ness ; and if, upon the hearing of said cause, the person or
persons against whom said information shall be filed, shall be
found guilty as in said information charged, they shall be
1873.] Mitchell v. The People. 141
Opinion of the Court.
adjudged to pay the costs and a fine of not less than one hun-
dred dollars nor more than five hundred dollars, and the court
shall issue a writ of injunction perpetually enjoining him or
them from continuing such business in any offensive or inju-
rious manner. In case the parties so charged shall not be
found guilty, the property seized shall be at once restored to
them. If in any case prosecuted under the 11th and 12th sec-
tions of this act, there existed probable cause for the complaint
or seizure, it shall be the duty of the court so to certify, and
no action shall then lie against the party or parties making
such complaints or seizure, and in that case the costs shall be
paid by the city."
It is declared, by the 29th section of the 6th article of the
constitution of 1870, that, "All laws relating to courts shall
be general and of uniform operation, and the organization,
jurisdiction, powers, proceedings and practice of all courts of
the same class or grade, so far as regulated by law, and the
force and effect of the process, judgments and decrees of such
courts, severally, shall be uniform."
The Criminal Court of Cook countjT is of the same class or
grade as the circuit courts of the State, and has the same juris-
diction and powers in criminal cases. See article 6, sections
23, 24, 25, 26, constitution of 1870.
It was held by this court, in The Peopk v. Rumsey, 64 111.
44, O'Connor v. Leddy, ibid. 299, Taylor v. Smith, ibid. 445,
Hills v. The City of Chicago, 60 111. 86, The People ex rel v.
McRoberts, 62 111. 38, and Phillips v. Quick, 68 111. 324, that
the section of the constitution quoted, abrogated all special
or local laws regulating the powers, proceedings and practice
of the courts of this State, in force at the time of its adoption,
and it is unnecessary now either to reargue the question or
restate the reasoning by which those decisions are sustained.
We think it too plain to require argument, that the section
under which the defendant was prosecuted and convicted, is
local, specially applying to the proceedings and practice in the
Criminal Court of Cook county, in a particular class of public
142 Walton v. Walton et al. [Sept. T.
Syllabus.
nuisances. The act does not profess to apply to any other
county than Cook, and the prosecutions are required to be
commenced in the Criminal Court of that county. Prosecu-
tions for the same class of offenses, in other counties, are not
governed by this section, nor is the manner of instituting the
prosecution, or the amount of punishment authorized to be
imposed, in case of conviction in such cases, the same.
Upon the authority of the cases referred to, we can not do
otherwise than hold that the section under consideration was
abrogated by the adoption of the 29th section of the 6th
article of the constitution of 1870, and that the defendant's
conviction was, consequently, without authority of law.
The judgment of the court below is reversed and the de-
fendant discharged.
Judgment reversed.
Jane E. Walton
V.
Geokge W. Walton et al.
1. Chancery — effect of sworn answer as evidence. Where an answer in
chancery is required to be under oath, and it is responsive to the bill,
it must be taken as true, unless overcome by evidence amounting to the
testimony of two witnesses.
2. Same — when answer sets up new matters. In a proceeding for the
partition of land, an allegation in an answer that the petitioner or com-
plainant had promised to give a certain interest in the land to a brother
under whom the defendant claimed, and that such brother made valuable
improvements on the land, upon the faith of such gift, is not responsive
to the petition, and must be sustained by affirmative proof.
3. Gift— promise to make, not enforcible. A mere promise to make a
gift of the promisor's interest in land, without consideration, is not
binding on the party making it, especially when the use of the property
is ample compensation to the promisee for his improvements, and taxes
paid by him.
1873.] Walton v. Walton et al. 143
Opinion of the Court.
Appeal from the Circuit Court of Cook county; the Hon.
William W. Far well, Judge, presiding.
Mr. E. F. Allen, for the appellant.
. Mr. James Frake, for the appellees.
Mr. Justice Craig delivered the opinion of the Court:
This was a petition for partition, filed in the circuit court
of Cook county, by George W. Walton and Thos. H. O. Wal-
ton, against Jane E. Walton, on the 2d day of July, 1872, for
the purpose of dividing a certain tract of land in Cook
county, containing 80 acres.
It is alleged, in the petition, that George W. Walton is the
owner in fee of an undivided eighteen seventy-second of the
land, and that Thos. H. O. Walton is the owner in fee of an
undivided twenty-one seventy-second thereof, and that Jane
E. Walton petitioners believe to be the owner in fee of thirty-
three seventy-second thereof. The manner in which the
parties derive title is fully set out in the petition.
The defendant filed her answer under oath, the petition
not having waived the oath, replication was filed, the cause
referred to the master, and proof taken. The master, in his
report, found the land owned as stated in the petition. Ex-
ceptions were filed to the report of the master, and overruled,
and decree entered in conformity to the prayer of the peti-
tion.
The facts, as shown by the record, so far as it is material
to state them, are these: Thomas Walton, in 1843, died
intestate, seized of the land in controversy. He left a widow
and nine children, who were his only heirs, among whom
were the petitioners, George W. Walton and Thos. H. O. Wal-
ton, and a son, Eldridge G. Walton, who was the husband of
defendant.
In 1865, one of the children, Phebe J., died intestate and
unmarried, and without issue.
144 Walton v. Walton et al. [Sept. T.
Opinion of the Court.
On the 20th day of September, 1856, Eldridge G. Walton
conveyed his one-ninth interest in the land to Geo. W. Wal-
ton, but he continued to reside upon and receive the rents
and profits of the land up to the time of his death, paying
the taxes and making some improvements.
In 1863, Eldridge G. Walton purchased of four of the
heirs their four-ninths interest in the premises. George W.
Walton bought out a portion of the heirs, and, in 1872, Thos.
H. O. Walton purchased the remaining interests in the land.
On the 10th day of February, 1869, Eldridge G. Walton
died testate, and, by his last will and testament, he gave to
the defendant all his interest in the land.
It is alleged, in the defendant's answer, that, in the year
1860, Thos. H. O. Walton promised, and agreed to and with
Eldridge G. Walton, that he would give him his interest in
said premises, being an undivided one-ninth, and, on the faith
of such promise, he made valuable improvements on the
premises; and this is the only question in controversy in the
case.
It is insisted by the defendant that, her answer being under
oath, in which she sets up this gift, and not having been dis-
proved by two witnesses, on that ground she is entitled to
recover.
It is no doubt true, that, where the answer is required to
be under oath, so far as it is responsive to the bill, and fairly
meets and responds to the allegations of the complainant, it
must be received as true, unless it is disproved by evidence
amounting to the testimony of two witnesses. Stouffer v.
Machen, 16 111. 553.
But this fact set up in the answer, that Thos. H. O. Walton
had promised to give his one-ninth interest in the land to
Eldridge G. Walton, and, in consideration thereof, improve-
ments were made, is not responsive to any allegation of the
petition, but is new matter, and must be sustained by affirma-
tive proof by the defendant. 2 Story Eq. Jur. 1528-9. Cum-
mins v. Cummins, 15 111. 34; Lynn v. Lynn et al, 5 Gilman,
1873.] Walton v. Walton et al. 145
Opinion of the Court.
622. It is, however, insisted that, independent of the answer,
the proof establishes the fact that this one-ninth interest in
the land was given.
The main proof on this point is the evidence of the defend-
ant. She testifies she knew all about her husband's business
matters; that Thos. H. O. Walton wrote to her husband sev-
eral times that if he would make out the deed, and send it to
him, of the interest of Thomas in the premises in question,
he would sign the deed and send it back.
This evidence is not sufficient to sustain the position of the
defendant. The only reasonable construction to be placed
upon it is, it is a mere promise to make a gift, which can not
be binding on the person who made it.
Neither is the fact that Eldridge G. Walton made improve-
ments on the land, sufficient to make out a case for defendant.
It appears, from the testimony, that the father of the peti-
tioners was residing on the land, with his family, at the time
of his death; that his widow and some of his children,
including Eldridge G. Walton, continued to reside there, as
a home for the family, until the widow died, in 1859; that,
after her death, Eldridge occupied the place as before, and
had the entire proceeds thereof, up to the time of his death,
in 1869, which largely exceeded any improvements he made,
and taxes paid by him.
While he was occupying the land, on the 11th day of Octo-
ber, 1862, he wrote to George W. Walton, and used this lan-
guage: "I have bought Nelson's share of the place for $100.
I am in hopes to buy all the rest, in the next year, but your's.
T. H. O. offered me his and Julia's shares for $100 per share."
Again, in 1867, December 1, he writes to Thomas: " You
spoke, in your last, about giving me a quit-claim deed of
the old place. I feel sorry that you thought that I was
begging you to give it to me. You misunderstood me. I
merely wanted you to get the other shares in your hands, and
hold them; for I thought you never would make me any
trouble about them; and again, I thought if you left this
10— 70th III.
146 Kitzinger v. Sanborn et al. [Sept. T.
Syllabus.
country before I did, or before I could pay for it, you would
make me a present of it."
The defendant testifies that she was familiar with her hus-
band's business; but notwithstanding this fact, after her hus-
band's death, and in March, 1871, she writes a letter to N. C.
Walton, in which she says: "I feel that you, George and
Thomas have an interest in the farm. J. W. Walton and
your sisters sold to Ebb, and gave quit-claim deeds."
In the face of these letters, we do not think it can be seri-
ously insisted that a gift was made of this land, and that as
early as 1860, as it is the theory of the defense that Eldridge
purchased the four-ninths in 1863, from the fact that his
brother had previously made him a gift of his ninth.
We are clearly of opinion that this case, both as to the law
and the facts, was decided correctly in the circuit court. The
decree will, therefore, be affirmed.
Decree affirmed.
Serdatius Kitzinger
v.
George W. Sanborn et al.
1. Contract — to sell and deliver — not excused by bad weather. Inclem-
ency of weather furnishes no excuse for the non-performance of a con-
tract to sell and deliver hogs on a specified day, unless it is expressly so
provided in the contract.
2. Measure op damages — in action by purchaser against vendor for
failure to deliver. "Where the vendor of hogs fails to deliver the same at the
time and place agreed upon, the measure of the purchaser's damages will
be the difference between the contract price and the fair market value at
the time and place fixed for delivery.
3. Jury — right to test evidence by their general knowledge and intel-
ligence. It is proper for the jury to apply to the facts proved their gen-
eral knowledge as intelligent men. They must test the truth and weight
of evidence, and what it proves, by their knowledge and judgment de-
rived from experience, observation and reflection.
1873.] Kitzinger v. Sanborn et al. 147
Opinion of the Court.
4. Vendor and purchaser — latter must be ready and willing to perform.
In a suit by a purchaser of hogs, to be delivered to him at a certain time
and place, to recover damages for a non-delivery, it is necessary to prove
that he was ready and willing to receive and pay for the same at such time
and place, but slight evidence of such fact is sufficient.
Appeal from the Circuit Court of Winnebago county ;
the Hon. William Brown, Judge, presiding.
Mr. N. C. Warner, and Mr. Wm. Lathrop, for the appel-
lant.
Mr. C. M. Brazee, for the appellees.
Mr. Chief Justice Breese delivered the opinion of the
Court :
This was an action originally brought before a justice of
the peace of Winnebago county, by George W. Sanborn and
others against Serdatius Kitzinger, on a contract for the sale
and delivery, by the latter to the former, of twelve fat hogs
by a day specified.
The trial resulted in a judgment for the defendant, which,
on appeal by the plaintiffs, and trial in the circuit court, was,
on trial before a jury, reversed, and a verdict rendered for
the plaintiffs for nine dollars damages.
A motion for a new trial having been overruled, judgment
was rendered on the verdict, for the plaintiffs.
To reverse this judgment, the defendant appeals, and makes
as his principal point, that the sale and delivery of the hogs
was not absolute, but conditional. He contends that the tes-
timony establishes this point in his favor.
This was a strongly contested point before the jury. The
defendant insisted that the bargain was, if the weather was
good on Saturday, the hogs would be delivered, if not, and
they remained in the pen until the following Monday, they were
to remain the property of the defendant. At defendant's
instance, the court instructed the jury as follows:
148 Kitzinger v. Sanborn et al. [Sept. T.
Opinion of the Court.
" If the jury believe, from the evidence, that the defend-
ant, on Friday, the 13th day of January, 1871, bargained to
the plaintiffs his twelve fat hogs at $5.75 per hundred weight,
to be delivered to the plaintiffs, at Pecatonica, on Saturday,
the following day, and, upon delivery, to be paid for by the
plaintiffs, and that said agreement on the part of said defend-
ant was upon the condition that the weather was good on
said Saturday, and that if the weather was not good, and the
hogs remained in the pen until Monday, the hogs were to
remain the property of said defendant; and if the jury also
believe, from the evidence, that said Saturday was a very
stormy day, and one not reasonably fit for removing said hogs
from the residence of said defendant, where said hogs then
were, to said Pecatonica, then the jury should find for the
defendant."
This point being made so prominent in the case, and
brought distinctly to the attention of the jury by this instruc-
tion, and much testimony heard upon it on both sides, and
in some respects conflicting, we could not, under repeated
rulings of this court, disturb the finding of the jury. It is
impossible for us to say, upon a careful examination of the
testimony, that the jury have found against the preponder-
ance of the evidence. We are inclined to coincide in opinion
with the jury, that the sale and delivery were unconditional.
As to the other branch of the case — the condition of the
weather on Saturday — there was conflicting testimony on that
point, and nothing was shown which should have prevented
the delivery on Saturday, for, if the hogs could not be driven
on that day a distance of six miles, they could be hauled in
wagons, or in sleighs upon the snow, of which the proof shows
there was an ample supply. It is in proof, hogs were hauled
to that point on Saturday, and it was no defense, to urge
inclement weather as a reason for the non -performance of a
contract, unless it was expressly so agreed. The jury have
found it was not so agreed, and in this they are sustained by
the evidence.
1873.] Kitzingeh v. Sanborn et al. 149
Opinion of the Court.
The next point made by appellant is, that plaintiffs were
permitted to show, on the question of damages, what was
the market value of such hogs at Chicago on the day they
should have been delivered.
The court, at the instance of appellant, gave to the jury
this instruction :
"If the jury should believe, from the evidence, that said
defendant unconditionally bargained with said plaintiffs, on
the 13th day of January, 1871, for the delivery to them, on
Saturday, the following day, at Pecatonica, his, the said de-
fendant's, twelve fat hogs, and that the defendant, without
any legal excuse therefor, failed to deliver the same at the
time and place agreed upon, then the measure of damages
would be the difference between the contract price and the
fair market value of said hogs at said Pecatonica on said
Saturday."
It was shown on the trial, that, at the place of delivery,
the market value of such products was controlled by the daily
published reports of the Chicago market, to which Pecaton-
ica was in close proximity by rail, and for which market these
hogs were intended. It is a well known fact, that the price
of farm products at points in the neighborhood of great busi-
ness centres, like Chicago, is ruled by the prices at such cen-
tres. Every man on the jury knew this, and when the price
at Chicago was proved, it was quite easy to ascertain the dif-
ference, and that difference, when ascertained and deducted,
would fix the price at Pecatonica. It was proper for the jury
to apply to the facts proved, their general knowledge as intel-
ligent business men. They must test the truth and weight
of evidence, and what it proves, by their knowledge and
judgment derived from experience, observation and reflection.
Being informed by witnesses that live hogs, like those in
question, were worth, in Chicago, a certain sum per 100 lbs.
on the day these were to be received at Pecatonica, it
was an easy matter to determine the market value at the lat-
150 Kitzingerv. Sanborn et al [Sept. T.
Opinion of the Court.
ter place. Appellant made no objection to this testimony,
when offered.
Another point made by appellant is, there was no evidence
that appellees were ready and willing to pay for the hogs at
the time and place of delivery.
This point was brought to the attention of the jury by this
instruction, asked by appellant :
"That, even should the jury believe, from the evidence,
that said defendant bargained his twelve fat hogs to the plain-
tiffs, at $5.75 per hundred weight, on January the 13th, 1871,
to be delivered to the plaintiffs, at Pecatonica, on January
14th, 1871, and that the defendant failed to deliver the same,
yet the plaintiffs are not entitled to recovery in this case
unless it has been proven, and the jury, from the evidence,
believe, that said plaintiffs were ready and willing to pay for
said hogs at said agreed price at the stipulated time and place
of delivery."
There was testimony before the jury, that plaintiffs were
dealers, at Pecatonica, in grain and stock, and had been for
several years, and that one or more of the firm was at that
place on that day, ready to receive and pay for the hogs.
In Hough v. Jcaivson, 17 111. 588, which was assumpsit on
an agreement to deliver a quantity of corn, this court said,
the obligations to pay and deliver are concurrent, and in order
to recover for non-delivery, a party must show his readiness
to receive and pay — that slight evidence of a readiness to
accept and pay might be sufficient.
On all the points, we concur with the jury in their finding.
Appellant failed, for no sufficient reason, to perform a con-
tract voluntarily and deliberately made, and he ought to pay
such damages as the other contracting party has sustained by
rea'son thereof. The damages are small in this case. They
arise upon a breach of contract which appellant could have
performed.
1873.] Moulding et al. v. Pkussing et at. 151
Syllabus.
We see no error in the record. The instructions asked by
appellant were all given, and no specific objection is pointed
out to those given on behalf of appellees, and we perceive
none.
The judgment must be affirmed.
Judgment affirmed.
Mr. Justice Scott dissents.
Thomas Moulding et al.
v.
Geoege C. Pkussing et al.
1. Contract — void for uncertainty and repugnancy. On the sale and
purchase of brick, the parties, on the same day, made the following mem-
oranda: "Bought 500,000 of good, merchantable brick from Messrs. A
and B, to be delivered on Wabash avenue, just south of Van Buren street,
at the rate of $6.37 per thousand, to be delivered this fall. A & B." And
the other parties executed and signed the following: "Bold 50,000 good,
merchantable brick to C & D, just south of Yan Buren street, at $6.37^
per thousand; said C & D agree that we shall commence to deliver on
Wednesday next, or agreement is of no account. C & D:" Held, that
the memoranda, when separately considered, showed no sale, because, by
the terms used, each party contracted with themselves, and taken together,
were void for uncertainty and repugnance, and failed to express any
contract.
2. Parol evidence — to explain written contract. Parol testimony is
inadmissible to show that certain written memoranda are contracts, and
supply their terms, but the writings must be construed by themselves.
3. Same — of contract attempted to be expressed in writing, but which is
void for uncertainty. Where a contract, as reduced to writing, is void or
unintelligible from any cause, parol evidence may be«received under ap-
propriate special counts, to prove the verbal contract.
4. Same — of the verbal understanding aside from writing. The rule
holding, when parties reduce their agreement to writing, that all ante-
cedent verbal agreements in reference to the matter are merged, and it
must alone govern, has reference to legal and valid agreements, and not
to those which are void or wholly unintelligible.
152 Moulding et ah v. Prussing et al. [Sept. T.
Opinion of the Court.
5. This is not the case where the contract is required to be in writing,
as, under the Statute of Frauds.
6. Contract — waiver of condition by subsequent part performance. If a
contract to deliver a lot of brick is to be of no account unless the seller
is permitted to commence delivering by a certain day, and he, after such
day, delivers a part, this will be a waiver of his right to avoid the agree-
ment, and when sued for not delivering the balance, he can not avoid
liability on the ground he was prevented from commencing on the day
named.
7. Same — performance not excused by direction of an agent having no
authority. A party will not be excused for not delivering brick to another
under his contract, from the fact that such other party's foreman directed
him to stop, without authority from his employer to do so.
8. Instructions — must be applicable to the evidence. It is not erroneous
to refuse an instruction not applicable to the evidence, though it may
contain a correct legal proposition.
Appeal from the Superior Court of Cook county ; the Hon.
Theodore D. Murphy, Judge, presiding.
This was an action of assumpsit, by George C. Prussing
and Charles G. Mueller, against Thomas Moulding and
Edward Harland, for the alleged breach of a contract for the
sale and delivery of a lot of brick. The opinion of the court
presents the material facts of the case.
Messrs. Scates & Whitney, for the appellants.
Messrs. Nissen & Barnum, for the appellees.
Mr. Justice Walker delivered the opinion of the Court:
Appellees sued appellants in the Superior Court of Cook
county, for the breach of a contract to deliver 500,000 good,
merchantable brick, under a contract to sell and deliver, at
$6.37 per thousand, at Wabash avenue, just south of Van
Buren street, Chicago, Illinois, to be paid for on delivery. It
is claimed that but 35,000 were delivered, and a refusal to
deliver the balance, 465,000, under the contract. A trial
was had, resulting in a verdict and judgment in favor of
1873.] Moulding et al. v. Prussing et al. 153
Opinion of the Court.
plaintiffs for the sum of $2392.50, from which defendants
have appealed.
On the trial, it was proved that at the time the contract
was entered into, each party intended to write in his memo-
randum book a statement of the terms of the contract, as he
understood it. They were signed by the parties, and are
as follows:
" Chicago, August 30.
" Bought 500,000 of good, merchantable brick from Messrs.
Moulding & Harland, to be delivered on Wabash avenue,
just south of Van Buren street, at the rate of $6.37 per thou-
sand, to be delivered this fall. Moulding & Harland."
"August (Wednesday,) 30, 1871.
"Sold 50,000 good, merchantable brick to Prussing &
Mueller, just south of Van Buren street, at $6.37| per thou-
sand. Said Prussing & Mueller agree that we shall commence
to deliver on Wednesday next, or agreement is of no account.
" Prussing & Mueller."
It will thus be seen that the terms of the agreement are
left indefinite and uncertain from these two writings. They
differ no less than 450,000 in the number of bricks to be
delivered ; they differ one-half of a cent in the price per
thousand. One states the brick were to be delivered that
fall ; the other, that they were to commence the next Wednes-
day, or the agreement to be "of no account." The two papers
are so essentially different in their terms, that no ingenuity
can possibly reconcile them. The terms are repugnant and
wholly inconsistent.
If we were to consider that signed by appellants, it is non-
sensical, because the purchase is from themselves. The
memorandum says so, and it can not be tortured into any
other meaning. If the other be examined by itself, then
appellees sold the brick to themselves, and the contract can
bear no other meaning. When considered separately, they
are nonsensical, and when examined together they are no
154 Moulding et al. v. Pkussing et al [Sept. T.
Opinion of the Court.
more intelligible, and are also entirely repugnant, one to the
other.
If it, however, were contended that verbal testimony can
be resorted to, in aid of these written memoranda, for the
purpose of showing that they were contracts and to supply
the terms of the agreement, the numerous decisions of this
court, based upon long and well recognized rules, forbid it.
Verbal evidence can not be heard to vary, enlarge, alter or
explain a written contract. It speaks its own language, and
must be construed by what it says. It can not rest partly in
written, and partly verbal evidence. These memoranda were
read in evidence, but they did no harm, as they proved noth-
ing pertinent to the issue in this or any other case.
But the question arises, whether, outside of, and independ-
ently of, the written memoranda, appellees may prove a verbal
contract for the sale of the brick, and its breach. We have
no doubt they may, under an appropriate special count, sev-
eral of which seem to have been filed in this case. As an
objection to this view, it is urged that when parties reduce
their agreement to writing, all antecedent verbal agreements
in reference to the matter are thereby merged in the writing,
and it must govern; and the parties in this case having
made these written memoranda to evidence the contract, that
the terms of the agreement can not be proved by verbal evi-
dence. This is, no doubt, true of all legal and valid agree-
ments, but is not with reference to void or unintelligible
contracts. Nor does it matter from what cause they are void.
To hold in this case that a recovery could not be had on the
verbal agreement, because these memoranda are void for
uncertainty, and then to hold that the 'writings were void,
and were incapable of explanation, and no suit could be
maintained on them, would be a reproach to the law that it
does not deserve. To so hold would be to say that, where
parties are capable, and endeavor to contract in reference to
a lawful' subject, and who supposed they had contracted, and
one of them actually entered upon the performance of the
1873.] Moulding et al. v. Pbussing et al. 155
Opinion of the Court.
contract, had not made any agreement, and all for the want
of skill to make writings expressing their agreement.
This is unlike a contract under the Statute of Frauds, as
in that case, if the written contract is void, the agreement
can not be established by verbal evidence, because the con-
tract must be evidenced by writing. The authorities to
which we have been referred, seem to recognize this rule.
The evidence of Prussing and Moulding, who made the
contract, does not vary materially in the version of its terms.
They establish the agreement as set out in a part of the counts
in the declaration. But it is claimed by Moulding that the
contract was violated because he could not begin to deliver
at the time agreed upon. A complete answer to this is, that
he and his partner delivered 35,000 bricks after the time, and
continued to deliver up till the fire of October, 1871, occurred.
But it is urged, the father of Moulding delivered the brick
without his knowledge. But the father says he knew of the
contract the day it was made, or the next day, and that he
had the brick delivered under the contract. It appears that
he was the delivery clerk, and that these bricks were deliv-
ered as was usually done, although he says he was not told
to deliver them. Had appellants intenied to declare the
contract at an end, it is almost certain that they would have
directed their clerk not to deliver under the contract. We
think that the evidence warranted the jury in finding that
appellants entered upon the performance of the contract, not-
withstanding the day for their commencing had passed, and
that they had waived the time for commencing.
It is insisted that appellees put an end to the contract by
their agent stopping a further delivery. Two or three wit-
nesses say, the foreman, on Saturday before the fire, directed
them to bring no more brick, and that they, for that reason,
hauled no more. Prussing, however, swears that the fore-
man had no authority to prevent the men from delivering
brick, and that they could have continued to deliver, and
the jury must have believed him.
156 Newhall v. Kastens et al. [Sept. T.
Syllabus.
We perceive no error in giving or in refusing instructions.
Although a portion of defendants' refused instructions may
have contained legal propositions, they were properly refused,
because they were not applicable to the evidence.
The verdict is fully sustained by the evidence. The amount
the jury found was, no doubt, based on a calculation at $12
per thousand for the portion not delivered, from which was
deducted the contract price for that number, and the contract
price for those which were delivered, which would give some-
thing more than the amount of the verdict.
Perceiving no error in the record, the judgment of the
court below is affirmed.
Judgment affirmed.
Feedeeick W. Newhall
V.
Louis Kastens et al.
1. Interpleader — when bill lies. Where two parties are each claim-
ing the same fund or property in the hands of a third person, by different
or separate interests, and such third person does not know to whom it
of right belongs, and as to which he is wholly indifferent as between them,
he may exhibit a bill of interpleader against them.
2. Same— ground of jurisdiction and decree. The ground of jurisdic-
tion is the apprehension of danger to the party exhibiting the bill, to
himself, from the doubtful and conflicting claims of the several parties, as
between themselves ; and the only decree the plaintiff is entitled to, is, to
have liberty to pay the money or deliver the property to the party entitled
thereto, and be thereafter protected from several claimants.
3. Same — lies whether suits are brought or not. Such a bill may be filed,
though the party holding the disputed fund has not been sued at law, or
has been sued by one, only, of the conflicting claimants, or though the
claim of one is actionable at law and the other in equity, and it is thought
the principle would be the same whether the actions are pending in the
same or different courts having concurrent jurisdiction.
4. Same — bill in the nature. The owner of premises contracted with
A to erect thereon a building, and to furnish all the labor and materials,
1873.] Newhall v. Kastens it at 157
Opinion of the Court.
for a certain price. A sub-let a portion of the work to B, who never com-
pleted his contract, so that A was compelled to finish it at his own
expense, and, after deducting from the amount that would have been due
B had he completed his contract, the payments made to him and what it
cost to finish his work, there remained the sum of $399.52, which both A
and B claimed. The owner filed a bill, in the nature of a bill of inter-
pleader, against A and B, also making the persons who performed labor
and furnished materials for B parties defendant, who claimed liens, and
some of whom had brought suits: Held, that the owner had a clear right
to file the bill showing these facts, and that it was error to sustain a
demurrer to it.
5. Mechanic's lien — in favor of one employed by sub-contractor. The
mechanic or workman performing. labor, or party furnishing materials,
for a sub-contractor, is not entitled, under the statute, to any lien. The
lien given does not extend further than to the sub-contractor.
6. But where a court of equity acquires jurisdiction of the fund due
a sub-contractor, on a bill of interpleader, in which the persons perform-
ing labor or furnishing materials for the sub-contractor are made par-
ties, it is the duty of the court to adjust the equities of all parties inter-
ested in the fund, as they have an equitable claim on the fund.
Appeal from the Circuit Court of Cook county; the Hon.
William W. Farwell, Judge, presiding.
This was a bill, in the nature of a bill of interpleader, filed
by Frederick W. Newhall, against John Woolacott, Louis
Reinhardt, Louis Kastens, and several others. The leading
facts of the case may be found in the opinion of the court.
Mr. John Woodbridge, and Mr. George F. Blanke, for
the appellant.
Messrs. Haines & Tripp, for the appellees.
Mr. Justice Scott delivered the opinion of the Court :
The only question presented by this record arises on the
decision of the court sustaining the demurrer to the bill.
While, perhaps, it is not strictly what is termed a bill of
interpleader, it partakes of the nature of such a bill.
The facts alleged, on which relief is sought, are briefly
as follows: In 1872, Newhall, complainant in the court
158 Newhall v. Kastens et al. [Sept. T.
Opinion of the Court.
below, made an agreement with Woolacott, one of the defend-
ants, by which the latter was to erect for the former a brick
structure, and furnish all the materials, for which he was to
receive a stipulated sum. Woolacott sub-let the brick work
to Reinhardt. The latter never completed his contract, but
abandoned the work in an unfinished condition, and Woola-
cott was compelled to finish it up at his own expense.
After deducting from the amount Reinhardt would have
been entitled to receive, had he fulfilled his agreement, the
cash payments made to him, and what it cost to finish the
work, there remained the sum of $399.52. This sum is still
retained by Newhall, and it is claimed by both Woolacott
and Reinhardt.
The other defendants named performed labor or furnished
materials for Reinhardt, under his contract with Woolacott,
and, having served notices on Newhall, claim a lien for the
sums respectively due them, under the provisions of the Me-
chanic's Lien Law. A number of these parties have already
commenced proceedings, to enforce payment of their claims,
by establishing a lien therefor upon the property of Newhall,
and it is alleged others threaten to do so.
This bill is to enjoin the prosecution of these suits, and
have the several parties named as defendants interplead and
settle their respective rights to the funds in the hands of
complainant, which he alleges he is ready and desirous to pay
as the court shall direct, and for relief against a multiplicity
of suits to subject his property to the payment of the several
sums claimed to be due.
It will be observed, it is alleged that Woolacott and Rein-
hardt both claimed the same fund in the hands of appellant,
and the other defendants insist on having their respective
claims satisfied out of his property. If no one other than
Woolacott and Reinhardt were interested in the subject mat-
ter of this litigation, it is apparent it would be strictly a case
where a bill of interpleader would lie. So far as they are
concerned, there is but one fund in controversy, and in that
1873.] Newhall v. Kastens et al. 159
Opinion of the Court.
appellant has no interest, and is anxious to pay it to whom it
is in law due, and seeks the aid of the court to determine that
question.
The case would come exactly within the definition given in
the books, of an interpleader. Where two or more persons
claimed the same fund or property, by different or separate
interests, and another person does not know to whom it of
right belongs, and as to which he is wholly indifferent as
between them, he may exhibit a bill of interpleader as against
them. The ground of jurisdiction is the apprehension of
danger to himself from the doubtful and conflicting claims
of the several parties, as between themselves; and the only
decree he is entitled to, is, that his bill is properly filed, that
he have liberty to pay the money or deliver the property to
the party entitled thereto, and be thereafter protected from
the several claimants. 3 Dan. Chan. Prac. 1754; Mitchell v.
Hayne, 2 Sim. & Stu. 63; Bedell v. Hoffman, 2 Paige, 199.
Such a bill may be filed, though the party has not been
sued at law, or has been sued by one, only, of the conflicting
claimants, or though the claim of one is actionable at law
and the other in equity; and it is apprehended the principle
would be the same, whether the actions would be pending in
the same court or distinct courts having concurrent jurisdic-
tion. Richards v. Salter, 6 Johns. Chy. 445.
Mr. Story, in his work on Equity Jurisprudence, says:
"Although a bill of interpleader, strictly so called, lies only
where the party applying claims no interest in the subject
matter, yet there are many cases where a bill in the nature
of a bill of interpleader will lie by a party in interest to
ascertain and establish his own rights, where there are other
conflicting rights between third persons;" and the author
cites a number of cases where relief has been administered
on this principle. 2 Story Eq. Jur. sec. 824.
If the case at bar can be maintained at all, it is upon the
doctrine of those cases. The difficulty arises on the conflict-
ing claims of the parties seeking to establish liens, under the
160 Newhalj, v. Hastens et ah [Sept. T.
Opinion of the Court.
statute, against the property of appellant. Their claims arose
out of labor performed and materials furnished for a sub-
contractor; and the question presented is, whether they had
any lien, under the Mechanic's Lien Law, upon the premises,
and if so, to what extent. It is not claimed they were sub-
contractors under the original contractor. This question
depends upon the construction that shall be given to the
Mechanic's Lien Law of 1869.
By the first section of that act, every sub-contractor, me-
chanic, workman or other person who shall hereafter perform
labor or furnish materials in conformity with the contract
between the owner and the original contractor, in erecting
or repairing any building, shall have a lien therefor upon the
premises, upon giving notice as is required by the second sec-
tion, provided the aggregate of such liens shall not exceed
the contract price.
These parties, it is obvious, can not claim under the pro-
visions of the seventh section, for the reason there has been
no failure, on the part of the original contractor, to complete
his work. It is shown it was finished, and the owner makes
no complaint on that ground. The inquiry is, whether the
mechanic or workman performing labor, or a party fur-
nishing materials for a sub-contractor, is entitled to a lien,
under the provisions of the statute. Such persons are not
given a lien for their labor or materials by any express words
contained in the act, nor by any construction heretofore given,
nor has it been held they are within the purview of the law.
The legislature has not seen fit, by the use of any express
words, to extend the lien given beyond sub-contractors, and
it would perhaps be a doubtful policy to extend it further.
We have no inclination, by judicial construction, to extend
the meaning of the act beyond the intention plainly ex-
pressed. Indeed, we have no right to do so. Rothgerber v.
Dupuy, 64 111. 452.
It is according to equity, however, that all men should be
paid for their labor and materials, and one man should not
1873.] Newhall v. Kastens et al. 161
Opinion of the Court.
be permitted to appropriate to his own use another man's
labor or materials, without making compensation. It would
appear to be just, therefore, that persons performing labor or
furnishing materials to a sub-contractor, should have an
equitable lien upon the consideration to be paid him for doing
the work for the original contractor. They might, with great
propriety, be treated as sub-contractors under him, and, in
this view, be entitled to have the funds stopped in the hands
of the owner, or the original contractor, for their benefit.
Whether the statute will bear this construction, it is not neces-
sary to express a conclusive opinion at this time.
The demurrer admits the allegation there is due Reinhardt,
for money earned under the contract, $399.52. This fund
has been withheld by appellant for the party to whom it in
law belongs. Both Woolacott and Reinhardt claim it, but,
in equity, it belongs to the men who did the labor and fur-
nished the materials to earn it. Appellant could not pay it
to either of them without exposing himself to injury. He
had a clear right, so far as Woolacott and Reinhardt are con-
cerned, to file a bill against them in the nature of an inter-
pleader, and make all persons equitably interested in the
funds, parties, and the court, having obtained jurisdiction,
could ascertain to whom it belonged, and decree accordingly.
This view is consistent with the Mechanic's Lien Law, that,
where there are conflicting claims, under its provisions, all
persons interested shall be made parties, and it is the duty of
the court to adjust the equities between them.
It is difficult to conceive a case where a bill, in the nature
of an interpleader, could more appropriately perform its office,
than in the case at bar. If it is the true construction of the
statute, that persons furnishing materials, or performing labor
under the sub-contractor, have no lien on the premises, then it
is true, the only fund out of which they could possibly secure
themselves, is about to be appropriated by a party who has
no just claim to it. In any view that can be taken, Newhall
would be equitably entitled to have the funds in his hands
11— 70th III.
162 Utley v. Burns. [Sept. T.
Syllabus.
applied in reduction of the claims of the mechanics and ma-
terial-men, and it is not perceived how it can be so appropri-
ately done as by a bill in equity, of the character of the one
filed. Chancery would be wanting in its power to do justice
where the law, by reason of its universality, fails, if it could
afford no relief under the facts presented by this record.
In this view of the law, the demurrer was improperly sus-
tained.
The decree dismissing the bill and dissolving the injunc-
tion must be reversed, and the cause remanded for further
proceedings not inconsistent with this opinion.
Decree reversed.
Henry Utley
v.
Fanny B. Burns.
1. Change of venue — notice required. Where the term of court com-
rnenced June 10, and a motion for a change of venue, without any
previous notice, was made on June 17, the petition stating that the
knowledge of the cause for the change did not come to the applicant untii
since the commencement of the term, which was denied: Meld, that the
motion was properly overruled.
2. Surgeon— degree of care and skill required. Whatever may be the
character of the injury a surgeon is called upon to treat, he is only held
to employ reasonable care and skill — to exercise only that degree of skill
which is ordinarily possessed by members of the profession.
3. In a suit against a surgeon to recover damages for his alleged
unskillful treatment of a broken limb, the court, at the instance of the
plaintiff, instructed the jury "that the care and skill a surgeon should use
in the practice of his profession should be proportionate to the character
of the injury he treats; and if the jury believe, from the evidence, that
the injury in question was severe, and that the defendant did not treat it
with such skill as its severity reasonably demanded, and that the plaintiff
was injured by the want of such skill and care, they will find for the
plaintiff:" Held, that the instruction erroneously laid down the rule of
law as to the degree of skill required of a surgeon.
1873.] Utley v. Burns. 163
Opinion of the Court.
4. Instruction — effect of admitting affidavit for a continuance. Where
an affidavit for a continuance on account of the absence of a witness was
admitted, the court instructed the jury that they should attach no more
weight "to the statements than would be attached to the statements of a
witness who does not disclose his means of knowledge, and who is not
subject to cross-examination:" Held, that the instruction was erroneous,
as it contained an intimation from the court that full confidence was not
due to the statements contained in the affidavit, and a suggestion that the
absent witness might not have had due means of knowledge, or that a
cross-examination might have impaired the credibility of the statements.
Writ of Error to the Circuit Court of Whiteside county;
the Hon. William W. Heaton, Judge, presiding.
This was an action on the case, by Fanny B. Burns against
Henry Utley, to recover damages for an alleged unskillful
treatment of a broken arm of the plaintiff. A trial was had,
resulting in a verdict and judgment in favor of the plaintiff
for $800. The defendant brings the record to this court on
writ of error.
Messrs. Leffingwell & Johnson, for the plaintiff in
error.
Messrs. Sackett & Bennett, for the defendant in error.
Mr. Justice Sheldon delivered the opinion of the Court:
This was an action, brought by the plaintiff below, to
recover from the defendant, a physician and surgeon, damages
for his alleged unskillful treatment of a fractured arm of the
plaintiff. The plaintiff recovered, and the defendant brings
this writ of error to reverse the judgment.
It is assigned for error that the court erred in overruling
defendant's motion for a change of venue. The term of the
court commenced on the 10th day of June, and the motion
was not made until the 17th of June. The petition stated
that the knowledge of the cause for the change of venue did
not come to the petitioner's knowledge until since the com-
mencement of the term. No notice of the motion was given,
164 Utlky v. Buries. [Sept. T.
Opinion of The Court.
and the court properly overruled the motion to change the
venue. Hunt v. Tinkham, 21 111. 639; Moore v. Ellsworth, 51
id. 308.
It is also assigned for error that the court erred in giving
the 4th and 17th instructions for the plaintiff below, which
were as follows:
"4. The court instructs the jury, that the care and skill
a surgeon should use in the practice of his profession, should
be proportionate to the character of the injury he treats, and
if the jury believe, from the evidence, that the injury in ques-
tion was severe, and that the defendant, Utley, did not treat
it with such skill and care as its severity reasonably demanded,
and that the plaintiff was injured by the want of such skill
and care, they will find for the plaintiff."
"17. The affidavit read in evidence, in this case, in refer-
ence to the testimony of the witness Sherman, is not admit-
ted by the plaintiff to be true, but only that if the witness
were present, he would swear to the facts therein stated.
There is no admission as to the Avitness' means of knowledge,
and the truth or falsity of the statements therein contained
must be judged of by the jury, in connection with all the
other facts and circumstances found in the case, and no more
weight attached to the statements than would be attached to the
statements of a witness who does not disclose his means of
knowledge, and who is not subject to cross-examination."
The 4th instruction erroneously laid down the rule of law
as to the degree of skill required of a surgeon. He is not
required to exercise care and skill proportionate to the char-
acter of the injury he treats, and he is not to be held liable
if he does not treat a severe injury with such skill as its
severity reasonably demands.
Whatever may be the character of the injury a surgeon is
called upon to treat, he is only held to employ a reasonable
amount of care and skill-^-to exercise only that degree of
1873.] Utley v. Burns. 165
Opinion of the Court.
skill which is ordinarily possessed by members of the pro-
fession. Ritchey v. West, 23 111. 385.
The 17th instruction, as respects the last sentence, is open
to the objection that it contained an intimation from the court
that full credit was not due to the statements contained in
the affidavit for a continuance, and a suggestion that the
absent witness might not have had due means of knowledge,
or that a cross-examination might have impaired the credi-
bility of the statements, and the jury might thus have been
led off by the court into the field of conjecture, where they
might surmise in discredit of the statements, and perhaps be
led thus to disregard them altogether. The statute declares
the effect of admitting in evidence, by the opposite party, an
affidavit for a continuance on account of the absence of testi-
mony, as follows: " The party admitting such affidavit shall
be held to admit only, that if the absent witness was present,
he would swear to the fact or facts which the affidavit states
he will swear to, and such fact or facts shall have no greater
force or effect than if such absent witness was present and
swore to the same in open court, leaving it to the party
admitting such affidavit to controvert the statements con-
tained therein, the same as if such witness was present and
examined in open court." Laws. 1867, p. 157.
The court should have done no more than to inform the
jury of the effect of the admission of the affidavit as declared
:by the statute, without assuming to instruct the jury in regard
to the weight to be attached to the statements contained in
the affidavit. That was solely a question for the jury.
We regard the instructions as wrong, and that they might
have misled the jury, and for that reason the judgment will
be reversed and the cause remanded.
Judgment r<
166 Happel et al. v* Brethauer. [Sept. T.
ODinion of the Court.
Chaeles F. Happel et al.
v.
George W. Brethauer.
1. Statute — ivhether passed in the constitutional mode, can not be admit-
ted, but proof must be made to defeat a statute. The court will not act upon
the admissions of parties that a statute has not been passed in the man-
ner required by the constitution. Such fact must be shown either by the
printed journals or the certificate of the Secretary of State.
2. Justice op the peace—; jurisdiction of must be determined from the
evidence. On appeal, the jurisdiction of a justice of the peace is not
determined from the process issued by him or the amount indorsed on the
summons, but by the evidence heard upon the trial of the appeal.
Appeal from the Circuit Court of Cook county; the Hon.
John G. Rogers, Judge, presiding.
This was a suit brought by George W. Brethauer against
Charles F. Happel and Frederic Happel, before a justice of
the peace. The demand indorsed on the justice's summons
was $200. The other facts of the case appear in the opinion
of the court.
Mr. Adolph Moses, for the appellants.
Mr. M. W. Robinson, for the appellee.
Mr. Justice Thornton delivered the opinion of the Court :
The parties in this case stipulated that the " Act to increase
the jurisdiction of justices of the peace and police magis-
trates," (Sess. Laws 1871-2, p. 548,) and in force July 1, 1871,
had not been passed in conformity with the requirements of
the constitution. Ko other proof was submitted, as to the
admitted fact.
The court can not act upon such evidence, in determining
the constitutionality of a law. If such a rule was adopted,
the entire statute might be abrogated by agreement.
1873.] Happel et aL v. Brethauer. 167
Opinion of the Court.
We must take the law as we find it written in the statute.
If the constitution has not been complied with in its passage,
this fact must be shown either by the printed journals, or the
certificate of the Secretary of State, the custodian of legisla-
tive proceedings. In no other mode can we be properly
advised. The mode adopted in this case would be unsafe and
ruinous to the stability of the statutes.
The judgment is affirmed.
Judgment affirmed.
The foregoing opinion was filed as of the September term,
1872. On a rehearing, the following additional opinion was
filed as of the September term, 1873:
Mr. Justice Schoefieed delivered the opinion of the Court :
The demand indorsed upon the summons issued by the
justice of the peace in this case, was $200. The account
proved by the plaintiff was $164, but the defendant intro-
duced evidence of off-sets which reduced the amount due the
plaintiff to $87.50, for which amount the justice of the peace
rendered judgment. The defendant appealed to the circuit
court, and there moved to dismiss the case for the want of
jurisdiction in the justice of the peace. The plaintiff then
entered credits upon his bill of particulars, leaving the amount
then claimed to be due, $84.66. The court overruled the
motion to dismiss, and, after hearing evidence, rendered judg*
ment for the plaintiff, for $84.66. Defendant took proper
exceptions, and now insists that the court erred in overruling
his motion to dismiss the suit for the want of jurisdiction in
the justice of the peace.
It is provided, by the 19th section of the act relating to
justices and constables, 1 Gross, 395, that "the jurisdiction
of the justice shall be deemed to extend to cases in which the
original claim, debt, demand or damages may have originally
exceeded the sum of $100 and $20 respectively, but which
shall have been reduced, by fair credits, below those sums."
168 Dieter v. Smith et al. [Sept. T.
Syllabus.
;. It has been repeatedly held, under this section of the stat-
ute, that the question of jurisdiction is not to be determined
from the process, but from the facts appearing in evidence.
Rogers v. Blanchard, 2 Gilm, 325 ; Hough v. Leonard, 12 111.
457; Clark et al v. Whitbech, 14 111. 393. The justice of the
peace is enjoined to indorse the amount demanded by the
plaintiff, together with the costs due, on the summons, but his
failing to do so, while it might subject him to liability, can
not defeat the plaintiff's right to recover, if, on hearing,
it appears, from all the evidence adduced, that the case is one
in which the justice has jurisdiction.
We think the case falls within the principle enunciated by
the authorities referred to, and the judgment must therefore
be affirmed.
Judgment affirmed.
Peter Dieter
Charles W. Smith et al.
1. Garnishment — truth of answer— whether material. Where a gar-
nishee, in his written answer, denies his liability, and he testifies as a wit-
ness in the case, and his testimony is uncontradicted, it is a matter of no
consequence whether his answer is wholly true or not, and it is not proper
to submit the question to the jury to find whether the answer is true.
2. Same — liability of mortgagee in possession, to garnishee process. Where
a mortgagee of chattels reduced them to possession one or two days before
he was garnisheed for a debt of the mortgagor, but had not sold the prop-
erty, it was held, that he was not liable to the process on the ground that
the property in his hands exceeded in value the sum in which the mort-
gagor was indebted to him.
3. In case the mortgagee had sold the mortgaged chattels, and had an
excess in his hands over his debt, or had refused to sell according to the
terms of the mortgage, and converted the property to his own use, a dif-
ferent question would be presented as to his liabilitj'.
4. Special verdict. Where the jury find a general verdict in favor of
the garnishee, and also find, specially, that his written answer is not
.1873.] Dieter v. Smith et at. 169
Opinion of the Court.
true, this will not authorize the court to set aside the general finding and
render judgment against the garnishee, as the special finding is not neces-
sarily inconsistent with the general verdict.
Appeal from the Circuit Court of Iroquois county; the
Hon. Charles H. Wood, Judge, presiding.
Messrs. Doyle & McCullough, for the appellant.
Mr. C. R. Starr, for the appellees.
Mr. Justice Craig delivered the opinion of the Court :
The appellees, on the 28th day of April, 1871, instituted a
suit by attachment against one John Beaumont, before a jus-
tice of the peace of Iroquois county. Property was attached
and garnishee process was served on appellant. The justice
rendered judgment against appellant, and he appealed to the
circuit court, where, at the March term, 1870, a trial was had
before a jury.
The bill of exceptions shows that Beaumont was indebted
to appellant, and had given him a chattel mortgage on cer-
tain personal property. Appellant took possession of this
property a day or two before he was served with garnishee
process; that appellant was in nowise indebted to Beaumont,
but the property which he had taken under the chattel mort-
gage was worth something more than the mortgage debt.
• After the evidence had all been introduced, as is shown by
the bill of exceptions, the court stated that, " as counsel dif-
fered materially on the law, and as the instructions asked
were numerous on both sides, he had concluded, if counsel
were willing, to let the jury find a special verdict, and the
court could then settle the law upon such special finding," to
which the counsel on both sides did not object; and the fol-
lowing instructions were then given to the jury by the court,
in the form of questions to be answered :
First — Is the answer of said o-arnishee true?
Second — What was the value of the mortgaged property
which Dieter reduced to his possession?
170 Dieter v. Smith et id. [Sept. T.
Opinion of the Court.
Third— What was the amount owing from Beaumont to
Dieter at the time of the service of the garnishee process?
The jury returned a general verdict in favor of appellant;
and in answer to tl\e first question, said no; to the second,
$130, and to the third, $65.56.
On motion of appellees, the court set aside the general ver-
dict of the jury, and rendered judgment against the appellant,
and in favor of appellees, for the sum of $64.50, to which
appellant excepted. This decision of the court was clearly
erroneous, and in conflict with the finding of the jury. The
court had no power to set aside the verdict of the jury, and
make a verdict directly antagonistic to the one the jury had
rendered. Section 51 of the act of 1872, page 346, provides,
the court may, at the request of either party, require the jury
to render a special verdict upon any fact or facts in issue in
the cause, which verdict shall be entered of record, and pro-
ceedings had thereon, as in other cases. When the special
finding of the fact is inconsistent with the general verdict,
the former shall control the latter, and the court shall give
judgment accordingly.
Was there such an inconsistency between the general ver-
dict and the special finding of the jury, which would author-
ize the court, under this section of the statute, to make an
entire verdict, and render judgment thereon? An examina-
tion of the facts will give a negative answer to the question.
One of the special facts found was, that the answer of the
garnishee was not true; another was, the value of the mort-
gaged property appellant reduced to possession was $130;
the other was, Beaumont was indebted to appellant, at the
time garnishee process was served, in the sum of $65.56.
Whether the jury regarded the written answer of appellant,
which was offered in evidence by appellees, as true or not, is
a matter of no consequence. He was a witness in the case,
and his evidence was uncontradicted.
The jury found the value of the mortgaged property $130,
and that Beaumont was indebted on the mortgage to appel-
1873.] Perteet v. The People. 171
Syllabus.
lant $65.56. There is no inconsistency in these facts with
the general verdict in favor of appellant. Because the prop-
erty appellant held under his mortgage was worth more than
his debt, this fact did not render him liable to garnishee pro-
cess. If he had sold the property, and had an excess in his
hands over his debt, that would have presented a different
case; or if he had refused to sell according to the terms of
the mortgage, and converted the property to his own use, that
would have presented a different question; but in this case,
as is shown, appellant was served with garnishee process one
or two days after he took the property in the mortgage, and
before he had time to advertise and sell. The jury might,
with entire consistency, find, as they did, that the property
was of greater value than the mortgage debt, and, at the same
time, find that appellant was not liable to be garnisheed for
an excess of the value of the property over the mortgage
debt.
For this error of the court in setting aside the verdict in
favor of appellant, and rendering judgment against him, in
favor of appellees, the judgment will be reversed and the
cause remanded.
Judgment reversed.
Andrew J. Perteet
V.
The People of the State of Illinois,
1. Continuance — on ground of absent witnesses. There is no error in
overruling a motion for a continuance based on the ground of the absence
of witnesses, in a capital case, where the testimony expected from one of
them would be of no benefit to the accused, and the affidavit fails to
show that the attendance of the other witness, a non-resident, can ever be
procured.
2. Criminal practice— witnesses not named on indictment. The prose-
cution in a criminal case is not restricted to the witnesses whose names
172 Perteet v. The People. [Sept. T.
Syllabus.
are indorsed on the back of the indictment, a list of which is required to
be furnished the accused, especially when notice is given that others will
be called.
3. Evidence — of threats to defendant not heard by him. On the trial of
one for the murder of his wife, where the proof showed that the accused
left the house where the homicide occurred, the defense will not be
allowed to prove threats of violence against the defendant, which he did
not hear or had any knowledge of at the time, for the purpose of showing
a pretext for his leaving.
4. Writ op error — in capital case, does not take away the jurisdiction
of the inferior court. The allowance of a writ of error in a capital case
does not deprive the lower court of its jurisdiction, but only stays its
authority to act or proceed until the determination of the writ of error.
5. Same— -filing remittitur or remanding order on reversal not necessary
to jurisdiction. The filing of a remittitur or remanding order of this court
in the lower court, upon reversal, is not necessary to the jurisdiction of
the latter court to proceed with the cause. The omission to file a re-
manding order is simply an irregularity, that may be waived.
6. Where a judgment convicting one of murder was reversed, and the
defendant appeared in the court in which the conviction was had, and
read the opinion of this court, and, after the cause was redocketed, asked
for and obtained a change of venue, it was held, that he could not after-
wards object to the action of the court on the ground that no remanding
order had been filed.
7. Criminal law — defendant may waive his legal rights. While it is
true that a defendant in a capital case will not be presumed to have waived
any of his rights, yet he may waive any of them, but the record must
expressly show his consent thereto.
8. Change op venue — objection to jurisdiction waived. If a defendant
charged with murder, on his own motion, procures a change of venue to
another county, and submits to a trial in the court to which the cause is
sent, without objecting to the jurisdiction of the court trying him, or of
the court to award a change of venue, he will waive all objection to the
jurisdiction of the court.
9. Writ of error — determined by inspection of the record. Except on
a plea of extrinsic matters, such as a release of errors, etc., a cause brought
to this court on writ of error must be determined solely upon the record
sent up from the inferior court. Per McAllister, J.
Writ of Error to the Circuit Court of Will county; the
Hon. Josiah McRoberts, Judge, presiding.
1873.] Perteet v. The People. 173
Opinion of the Court.
This was an indictment against Andrew J. Perteet, for the
murder of his wife, Martha F. Perteet, by cutting her throat
with a razor. This case was before this court at the Septem-
ber term, 1872, and is reported in 65 111., page 230. The
opinion of the court gives a statement of the facts of the
case.
Mr. J. H. Knowlton, for the plaintiff in error.
Mr. Charles H. Keed, State's Attorney, for the People.
Mr. Justice Craig delivered the opinion of the Court :
On the 20th day of November, A. D. 1871, Andrew J.;
Perteet was indicted for murder, in the Criminal Court of
Cook county. On the 22d day of the same month, he plead
not guilty, and, on the 25th, filed a petition for a change of
venue. The motion for a change of venue was overruled.
On the 20th of December, 1871, the cause was tried, and
the verdict of the jury was, guilty of murder, and they fixed
the penalty that defendant should suffer, death by hanging.
This was followed by a judgment of the court that the defend-
ant be hanged on the 12th day of January, 1872.
The defendant brought the record to this court by writ of
error, and the judgment of the criminal court was reversed
and the cause remanded, on the ground that the criminal
court erred in not granting a change of venue.
On the 20th day of November, 1872, the record of the
criminal court shows the following proceedings in the cause
of The People v. Andrew J. Perteet:
" This day again come the said People, by Charles H. Peed,
State's Attorney, and the said defendant, as well in his own
proper person as by his counsel, also comes; and it appearing
to the court, from a certified copy of the opinion of the
Supreme Court of this State, produced and read to the court
by the said defendant's counsel, that the judgment of this
court in this cause has been reversed, and this cause remanded
174 Perteet v. The People. [Sept. T.
Ouinion of the Court.
for another trial, it is ordered that this cause be, and the
same is hereby, re-docketed.
"And now comes the said defendant, and presents his sworn
petition for a change of venue in this cause, and the court,
being fully advised in the premises, doth order that the venue
in this cause be changed to the county of Will, and that the
clerk of this court transmit to the clerk of the circuit court
of said Will county all the papers on file in this cause, with
a true and correct copy of all orders and proceedings of this
court had and entered therein, and that the said defendant be
remanded into the custody of the sheriff of Cook county."
The venue of the cause having been changed to Will county,
at the January term, 1873, of the circuit court of Will, the
defendant entered a motion for a continuance. The motion
was overruled, a trial had, and, on the 16th of January, 1873,
the jury returned a verdict of guilty, and fixed the penalty
that he suffer death by hanging.
The judgment of the court on the verdict was, that the
defendant, Perteet, be hanged on the 14th day of February,
1873. Again the defendant brings the record to this court,
by writ of error, and urges a reversal of the judgment, for
various errors.
We will examine the questions in the order in which they
arose during the progress of the trial of the cause.
The first decision of the circuit court, to which exception
was taken, was the overruling of defendant's motion for a
continuance. In support of the motion, two affidavits were
filed — one for the purpose of procuring the attendance of one
Williams, who, on the first trial, was a witness for the people.
In appears, by the affidavit, that, on the evening of the mur-
der, this Williams was walking on Polk street, in the direc-
tion of Perteet's house, and at the time he heard the cry of
murder, he saw the defendant at the corner of the alley, on
Polk street, about a half block distant from the house, going
north.
1873.] Perteet v. The People. 175
Opinion of the Court.
How this evidence could be material for the defendant, it
is difficult to see. On the first trial, this evidence was, no
doubt, offered by the people for the purpose of showing the
defendant was at or near the house where the murder was
committed, at the time or soon after it occurred, in order to
connect him with the crime; and for the defendant to show
that he was leaving the house at the time the cry of murder
was given, would certainly be evidence against him, rather
than in his favor.
In the other affidavit filed, it is alleged that one Harvey
was a material witness; that he lived in Missouri, but whether
his attendance could ever be procured, is entirely uncertain,
from the affidavit. No sufficient facts are set out in the affi-
davit by which the court could see that the evidence of Har-
vey could ever be obtained, which is necessary in a criminal
case, where the witness is out of the State, and can not be
reached by the process of the court. Eubanks v. Tlie People,
41 111, 486. We are, therefore, of opinion the motion for a
continuance was properly overruled.
The next question that arose was, the decision of the court
in allowing H. Merrill and James Shelton, two witnesses
whose names were not on the indictment, to testify on the
part of the people. The record shows that, about three weeks
before the trial, the attorney of defendant was notified that
these witnesses would be called by the people, and, on the
morning before the trial was begun, a written notice was served
on the defendant's attorney, that these witnesses would be
used on the trial.
This court has repeatedly held that the people are not
restricted to the witnesses whose names are indorsed on the
back of the indictment, a list of which is required to be
furnished defendant previous to arraignment. McKinney v.
The People, 2 Gilman, 552; Gardner v. The People, 3 Scarn-
mon, 89; Gates v. The People, 14 111. 436. In many cases,
the construction of the law contended for by defendant's
176 Perteet t\ The People. [Sept. T.
Opinion of the Court.
counsel would defeat the ends of justice, and turn loose upon
society the worst of criminals.
The next question that arose was, the refusal of the court
to permit the witness Shelton, on cross-examination, to answer
this question: Did you hear any cries, or noisy threatening
by the crowd that they would hang Perteet?
The object of the question, as stated by the counsel for
defendant, was, to show that Perteet left the house where the
murder was committed, and surrendered himself to the offi-
cers of the law, for the purpose of protecting himself from
mob violence.
The defense did not seek or offer to show that Perteet
heard any of these threats, if any were made, or that he had
any knowledge that any were made. Indeed, the evidence
clearly shows that Perteet left the house before the crowd had
assembled. The answer to the question would not have tended
to explain the defendant's conduct, unless he knew that threats
were made; and on this point, we perceive no error in the
ruling of the court.
The next point relied upon by the defendant, to reverse
the judgment of the circuit court, is, that the record does not
show a remittitur from this court, and, for that reason, the
criminal court of Cook county had no authority to change
the venue of the cause, and the circuit court of Will county
had no right or jurisdiction to try the defendant.
There is a marked distinction, in many respects, between
the English practice and our own in criminal cases. The
rigor of the English law, at an early day, led humane judges
to resort to technical rules to save the life of a criminal who
was on trial for stealing the value of a few shillings, who was
denied the right of counsel or the attendance of witnesses to
vindicate his innocence.
Under our laws, a criminal stands in entirely a different
attitude. He has a right to a speedy trial, before a jury and
court that are free from bias or prejudice.' The laws of the
land furnish him able counsel for his defense, whether he has
1873.] Pertket v. The People. 177
Opinion of the Court.
monev or not. The process of the court is at his command
to compel the attendance of witnesses. In fact, our laws
afford every facility for one charged with crime to obtain a
fair and speedy trial. This being the case, many of the tech-
nical rules in the English practice are not in use under ours.
Under the English practice, the writ of error took the
entire record from the lower court to the King's Bench, and
the remittitur transmitted the entire record to the inferior
court. Under our practice, however, the writ of error only
brings a copy of the record from the lower court to the
Supreme Court, and the remittitur does not transmit a record
back to the lower court, but it is simply a copy of the final
order or judgment of this court, and its only mission is, to
inform the lower court of the action of the Supreme Court
in the cause, with directions to proceed.
It is argued that the allowance of a writ of error in a capi-
tal case takes the jurisdiction of the cause from the circuit
court. This position is not tenable. The circuit court re-
tains the original record in the cause. Its jurisdiction of the
cause is not taken away, but its power and authority to act
or proceed in the cause are stayed. The statute (Gross, 207)
reads : " The allowance of such writ of error shall be sufficient
authority to the clerk of the Supreme Court to issue a super-
sedeas to stay the execution of the sentence of death, but not
the discharge of the prisoner from jail." Jacob, in his Law
Dictionary, says, a supersedeas is a writ that lies in a great
many cases, and signifies, in general, a command to stay some
ordinary proceedings at law, on good cause shown, which
ought otherwise to proceed. This court, in the case of Black-
erby et al. v. The People, 5 Gilman, 267, said, the order allowing
a supersedeas does not operate as a suspension of the judgment
until the bond is filed and the writ of error issues. When
these proceedings are had, the clerk issues the certificate pre-
scribed by the sixth rule of this court, the object of which is,
to notify those interested that all proceedings on the judgment
are to be stayed until the determination of the writ of error.
12— 70th III.
178 Perteet v. The People. [Sept. T.
Opinion of the Court.
It seems, then, that a writ of error does not oust the lower
court of jurisdiction. It only has the effect to suspend the
power of such court until final action is had in the appellate
court.
It is true, when final action is had in this court, it is neces-
sary to file a remittitur in the circuit court; but the question
that arises in this case is, was the filing of the remittitur, it
not being jurisdictional, waived by the defendant. The whole
scope and office of the remittitur in a capital case, where the
judgment is reversed, is, to inform the circuit court what the
decision of this court was. The remittitur is nothing mo-re
nor less than the final order of this court in the cause.
Instead of, and in lieu of, the remittitur, the defendant him-
self, as shown by the record, filed in the criminal court a cer-
tified copy of the opinion of this court in the cause.
This evidence produced to the criminal court was not the
best evidence — it was not the technical evidence the law
required; but, at the same time, it proved to the court each
and every fact that the remittitur would, had it been filed;
and when the defendant himself produced this evidence of
the action of this court, and called into action the powers of
the criminal court, which were suspended by the writ of error,
does it now lie in his mouth to object that the criminal court
acted on insufficient evidence? Did he not, by his own vol-
untary act, waive evidence of a certain fact, which he now
insists is error? In the case of Nomaque v. The People, Breese
109, it is said: "The prisoner in a capital case must be
considered as standing on all his rights. He can not be
considered as waiving any thing." In that case, however,
it appeared that the indictment was not found by the grand
jury, and no objection was made by the defendant in the
circuit court, and the question arose, whether he had waived
the objection.
In Guykowski v. The People, 1 Scammon, 476, the case of
Nomaque v. The People, is referred to, and the same doctrine
reiterated.
1873.] Perteet v. The People. 179
Opinion of the Court.
At a later period, however, in the case of The People v. Scales,
3 Scam. 351, the same question arose, and this court said : "It
is said, that a prisoner, in a capital case, is standing on all his
rights, and can waive none of them, nor his counsel for him,
and reference is made to Nomaque v. The People, in support
of this position. This case means nothing more than this,
that a prisoner, in a capital case, is not to be presumed to
waive any of his rights, but that he may, by express consent,
admit them all away, can be neither doubted nor denied.
He may certainly plead guilty, and thus deprive himself
of one of the most valuable rights secured to the citizen, that
of a trial by jury. If he can expressly admit away the whole
case, then it follows that he can admit away part of it, but
will not be presumed to have done so. The consent must
be expressly shown, and this is the whole scope of the doc-
trine in the case referred to."
In the case of McKinney v. The People, 2 Gilman, 556, this
court said: "A prisoner on trial, under our laws, has no
right to stand by and suffer irregular proceedings to take
place, and then ask to have the proceedings reversed on
error on account of such irregularities. The law, by furnish-
ing him with counsel to defend him, has placed him on the
same platform with all other defendants, and if he neglect, in
proper time, to insist on his rights, he waives them."
In the case of Chase v. People, 40 111. 356, the doctrine laid
down in Guykowskr's case was reviewed by this court, and
in that case it was said :
"The decision in Guykowski's case was placed upon the
ground that, in a capital case, the accused stands on all his
rights, and waives nothing which is irregular. As explained
in the case of The People v. Scales, this means nothing rhore
than, a prisoner in a capital case is not presumed to waive
any of his rights, but he may, by express consent, admit
them all away."
These decisions seem to settle the question.
180 Pekteet v. The People. [Sept, T.
Opinion of the Court.
But, independent of the settled and uniform decisions of
this court on this question, since the case of The People v.
Scales, we have a statute which seems to be directly in point.
The statute, Gross, p. 787, provides "all questions concerning
the regularity of proceedings in obtaining changes of venue,
and the right of the court to which the change is made, to
try the cause and execute the judgment, shall be considered
as waived after trial and verdict,"
In the case of Gardner v. The People, 3 Scam. 87, a ques-
tion, in some respects analogous to the one in this case, arose,
and the court, in that case, gave a construction to the statute
quoted supra. The court said: "It is urged that the Morgan
circuit court had no right to try the prisoner, because the
record of the proceedings in Scott county was not properly
certified by the clerk as required by the statute. No objec-
tion was made in the court below, before or after verdict, to
the regularity of the proceedings in Scott county, or to the
authentication of the same when changed to Morgan county.
If the authentication of the record was defective, the prisoner
should have availed himself of it in the circuit court before
trial. Not having done so, the irregularity, if in fact any
existed, is cured by the statute."
The defendant, in the circuit court of Will county, inter-
posed no objection to the jurisdiction, to the power or right
of the court to try the case. He voluntarily enters his motion
in the criminal court for a change of venue; causes the venue
to be changed to Will countv; submits to a trial in the cir-
cuit court "of Will, without objection to the jurisdiction, and,
after the verdict of the jury is against him, he insists in this
court that the criminal court had no power to change the
venue, and that the circuit court of Will county had no right
to try his case. Upon both principle and authority, we are
of opinion that the defendant has waived the objections that
he now, in this court, seeks to make. Brennan et al. v. The
People, 15 111. 515.
1873.] Perteet v. The People. 181
Mr. Justice Scott, dissenting.
This case has been submitted to a jury of Cook, and also
of Will county. Both have found the defendant guilty, and
that he has committed the highest crime known to the laws
of the land. It is not at all probable that another jury
would arrive at a different result. The evidence in the record
not only shows that the defendant committed murder, but his
wife, one whom he had sworn to protect, was the victim of
his malice.
Perceiving no error in the record, the judgment of the cir-
cuit court of Will county is affirmed, with costs, and the court
order that the prisoner, Andrew J. Perteet, shall be executed
on the 12th day of December, A. D. 1873, between the hours
of 10 o'clock A. M. and 4 o'clock P. M. of that day, and that
this sentence shall be executed by the sheriff of Will county.
Judgment affirmed.
Mr. Justice Scott: I am of opinion that it was error in
the circuit court to refuse a continuance on the affidavits filed.
The evidence sought to be procured was all important, to
enable the accused to make his defense; and the diligence
shown to procure the attendance of the witnesses, certainly
as to one of them, was complete. It was not possible, under
the circumstances, for the prisoner to do more.
Upon the question whether the court had jurisdiction to
proceed again to try the cause, without a mandate from this
court having been first filed, I do not desire to express an
opinion at this time, further than to say that I do not concur
in all of the reasoning of the opinion of the majority of the
court on that point.
In view of the rulings of the court, and after a most care-
ful consideration, it is my deliberate judgment there is error
in the record, for which the judgment of the circuit court
should be reversed.
Mr. Justice McAllistee: It is an elementary proposi-
tion, that does not admit of controversy, that, upon writ of
error in a criminal case, the cause must be determined solely
182 Perteet v. The People. [Sept. T.
Mr. Justice McAllister, dissenting.
upon the record sent up to this court, and the only exception
in civil cases, is, where there is a plea in this court to the
assignment of errors, setting up extrinsic matters, such as a
release of errors, etc. In the absence of such plea, the same
rule obtains in civil cases.
Now, the record before us shows that, at the December
term, 1871, of the criminal court, the plaintiff in error was
convicted of murder, and sentenced to be hanged on the 12th
day of January, 1872. Then the record shows that, at the
November term, 1872, of that court, this entry was made:
"This day again come the said People, by Charles H. Reed,
State's Attorney, and the said defendant, as well in his own
proper person as by his counsel, also comes; and it appearing
to the court, from a certified copy of the opinion of the
Supreme Court of this State, produced and read to the court
by defendant's counsel, that the judgment of this court in
this cause has been reversed, and this cause remanded for
another trial, it is ordered that this cause be, and the same is
hereby, re-docketed."
It is plain, beyond the possibility of cavil or doubt, that
the criminal court assumed jurisdiction to retry plaintiif in
in error upon the same indictment upon which he had before
been tried and convicted, upon the mere production in, and
reading to, the court, what is called an opinion of the Supreme
Court, which was not even filed in the lower court, and with-
out one scintilla of anything in the record which shows that
a writ of error had ever been brought from this court to that
judgment, or that the Supreme Court ever had any jurisdic-
tion of the case.
The record further shows that, after the criminal court had
thus assumed jurisdiction of the cause, the plaintiif in error
made an application for a change of venue, which was allowed,
and the venue changed to the circuit court of Will county,
where, at the January term, 1873, of that court, he was forced
to trial, against his objections; was convicted of murder, and
sentenced to be hanged on the 14th day of February, 1873.
1873.] Perteet v. The People. 183
Mr. Justice McAllister, dissenting.
The case was brought here by writ of error, and it is assigned
for error that the Criminal Court of Cook county assumed
jurisdiction of the case at a term subsequent to several terms
after that at which a final judgment had been rendered against
the prisoner, without any authority in law so to do. and that
the subsequent conviction is, therefore, irregular and void.
In my opinion, that position is unanswerable, and I can not,
therefore, give my assent to either the reasoning or conclu-
sion of the majority of the court in that behalf. The reason-
ing is substantially this: That, inasmuch as the original
record is not brought to this court by writ of error, as in
England, but only a transcript of it, the case is to be deemed
as being meanwhile within the jurisdiction of the lower court,
whose power is merely stayed or suspended by the supersedeas ;
that when the supersedeas becomes functus officio, by a judg-
ment of reversal in this court, then the jurisdiction of the
lower court becomes operative and without restraint, and that
the fact of such reversal may be shown by any, even secondary,
evidence which the lower court may regard as sufficient.
With all due respect to the opinion of my brethren, I am
constrained to say, that, in my judgment, this reasoning and
the doctrine embodied in it are wholly unsound, because it
excludes the operation of a vital and controlling principle,
which is this: when final judgment is rendered in the circuit
court, either in a civil or criminal case, and the term closes,
the court rendering such judgment ceases to have any juris-
diction over the parties or the subject matter, and can neither
grant a new trial nor revise any decision it has made in the
cause.
The leading case in this State, upon that question, is Cook
v. Wood et al. 24 111. 295. There, final judgment was ren-
dered at the April term, 1857. At the October term follow-
ing, a motion was made to set aside that judgment, and to
re-assess the damages, which was allowed. On error to this
court, the court said: "" The case was not regularly on the
docket at the term at which the motion was made to set aside
184 Perteet v. The People. [Sept. T.
Mr. Justice McAllister, dissenting.
the judgment. The poiver of the court over the case had been
previously exhausted, and was at an end, and no power existed
to decide on it again, or to change opinions once given, or
make new decisions." This doctrine has been reiterated and
affirmed by this court over and over again. So, in The Bank
of the United States v. Moss, 6 How. 38, the Supreme Court of
the United States, upon the same question, say: '' The action
was not regularly on the docket at the new term, in Mav fol-
lowing, when the court undertook to set the judgment aside.
The power of the court over the original action itself, or its merits,
under the proceedings then existing, had been exhausted —
ended." In all these cases the original record remained in
the circuit court. It is, therefore, clear and indisputable, that
the criminal court, at the close of the December term, 1871,
at which the first final judgment was rendered, lost all power
over the cause. Its power was then exhausted, ended, irre-
spective of the fact, whether a writ of error was allowed or
not. A copy of the sentence, made and certified by the clerk
of the court, and delivered to the sheriff, constitutes his
authority to inflict the penalty of death upon the prisoner.
The sheriff is a mere ministerial officer, and the effect of the
supersedeas is merely to stay his hands, and not those of the
court; they are stayed by the exhaustion of power at the close
of the term at which judgment was rendered. These prop-
ositions are all too clear to admit of argument. If the power
of the criminal court over this case wTas exhausted, ended, by
the rendition of final judgment at the December term, 1871,
and the close of that term, as I have shown by the highest
authorities, then does it not follow that the reasoning of the
majority of the court is unsatisfactory, and the conclusion
unsound?
The position of the majority of the court is, that the power
still inheres in the lower court, and is merely suspended by
the supersedeas. My position is, that the power is utterly
gone, for the reasons stated. This, I conceive to be the hing-
ing point of the discussion. For, if the power be utterly
1873.] Perteet v. The People. 185
Mr. Justice McAllister, dissenting.
gone, then it follows that the lower court must be re-invested
with it, in a legal way, before any action can be taken in the
cause by that court. If we go out of the record, and assume,
what nowhere appears in it, that there was a writ of error
from this court to that first judgment, then the legal effect
was, to withdraw the case from the lower court, whose power
over it was exhausted, to this court, and the cause became
thereby pending in this court. We may travel still farther
out of the record, and say that such case, upon error, was con-
sidered by this court, and an opinion filed which directed the
clerk of this court to enter a judgment of reversal, and re-
manding the cause. Yet, inasmuch as it is not claimed in
the opinion of the majority of the court that a judgment of
reversal was, in fact, entered in this court, and as it is not
true, in fact, that any mandate or process of remittitur ever
issued from this court, I maintain that nothing has occurred
which re-invested the criminal court with power or jurisdic-
tion in this case after the close of the December term, 1871.
To do so, it was requisite that the express mandate of this
court should go in due form of law, not only reversing that
judgment, but carrying the cause back to that court. If the
doctrine of the majority opinion be the correct one, why may
not the lower court proceed in every case, at its discretion,
which has gone into final judgment there, upon the mere
reversal here? Yet every lawyer knows that, when a case is
brought here by writ of error or appeal, and is simply re-
versed, the court below has no power to act, unless it is also
remanded. This doctrine of the common law is fully em-
bodied in our statute in force at the time of the attempt to
reinstate this cause: " When a cause or proceeding is re-
manded by the Supreme Court, upon a transcript of the order
of the Supreme Court remanding the same being filed in the
court from which the cause or proceeding was removed, and
not less than ten days' notice thereof being "given to the
adverse party, or his attorney, the cause or proceeding shall be
reinstated therein." Sess. Laws 1871-2, p. 351; sec. 83.
186 Perteet v. The People. [Sept. T.
Mr. Justice McAllister, dissenting.
Nobody will claim that a copy of the opinion, which is a
direction to the clerk as to what judgment shall be entered,
and to the court below in respect to its rulings, is a transcript
of the order of this court; nor can it be regarded as its equiv-
alent. But here, a copy of an opinion, with nothing to show
that any such case was ever before this court, was read, and
that even not filed, and upon that, alone, the court below
assumed to exercise a jurisdiction which had been utterlv
exhausted and ended. I maintain that this act of the lower
court was irregular and void. But while the majoritv of the
court do not concede that it is so, yet the opinion lays much
stress upon the fact that an application was afterwards made
on behalf of the prisoner for a change of venue. It must
be remembered, that the record does not show that defendant's
counsel moved to have the case re-docketed. But after the
order re-docketing was made, he moved for a change of venue.
My position, as is already shown, is, that, without a transcript
of the final order of this court being filed, the court below
was utterly without jurisdiction. If correct in this, it fol-
lows that the court had no authority to make any order in the
cause, and the application by the prisoner could confer none,
because it is an elementary rule, that consent can not confer
jurisdiction of the subject matter. Suppose the question of
a writ of error were wholly out of the case, and not appear-
ing in the record, it should be so considered; that the sheriff
had let the time go by for executing the prisoner under this
first judgment, and the criminal court had ordered the pris-
oner brought into court, and, when brought in, had ordered
his case to stand for another trial. The prisoner makes no
voluntary appearance; he is brought in by force. Suppose,
then, he moves for a change of venue, and it is granted, to
Will county. He is taken, by force, to that county, and there
tried and convicted. Would it be contended that, because he
asked for a change of venue, he therefore revived the already
exhausted jurisdiction of the criminal court, or conferred any
upon the circuit court of Will county? Suppose a prisoner,
1873.] Pekteet v. The People. 187
Mr. Justice McAllister, dissenting.
charged with felony, is ordered to stand for trial, without any
indictment having been found against him, or on one which
has never been presented and filed in the court. Would his
taking a change of venue to another county confer jurisdic-
tion ?
In the case of Rainey v. The People, 3 Gil m. 71, the prisoner
was arraigned upon an indictment which had never been pre-
sented in court. He applied for and took a change of venue
to another circuit, where he was tried for murder, and found
guilty of manslaughter. Upon error to this court, the con-
viction was reversed because the record did not show the
returning of the indictment into the court wherein he was
first arraigned. Why was this not waived by taking a change
of venue? Simply because it was jurisdictional.
In Livingston v. Rogers, 1 Caines' P. 583, the case was taken
to the court of errors, where the judgment of the court below
was reversed and a venire de novo awarded, but which was
never sued out. And the court, Kent, J., delivering the
opinion, say: "The second trial was, consequently, without
any authority, and, in our opinion, altogether null and void.
There certainly never was an instance of a new trial had
without any award by the court for the same, and ivithout any
record of such award, and such new trial held good, merely in
consequence of the appearance of the defendant."
That was a civil case, where the defendant could appear
voluntarily. This is a capital case, where the defendant is
brought into court by force, and is to be regarded as standing
upon all his rights, except such as he deliberately and ex-
pressly waives.
I am of the opinion that the judgment of the Will circuit
court, upon which the plaintiff in error is ordered to be exe-
cuted, " is altogether null and void."
I think, also, that there was error in overruling the motion
for a continuance, and especially for the absence of Williams.
The theory of the defense was, that the prisoner's wife com-
mitted suicide, as she had often threatened to do. The pris-
188 Sturman v. Streamer et al. [Sept. T.
Syllabus.
oner was infirm, very lame, and could get down stairs only
slowly and with difficulty. The homicide took place up
stairs. Now, by showing the prisoner so far away from the
house at the time Williams met him, was for the purpose of
raising the inference that the prisoner could not have inflicted
the wound and, in his physical condition, have got so far
from the spot at the time he was seen by this absent witness.
For the reasons stated, I think the judgment should be
reversed, and the cause remanded back to the Criminal Court
of Cook county, thus treating the change of venue as a nul-
lity.
Mr. Justice Scholfield : I concur in the views expressed
in the foregoing opinion of Mr. Justice McAllister.
Lydia Sturman
v.
Jacob Streamer et al.
1. Evidence — party asserting a trust must establish the same by a pre-
ponderance of evidence. Where a promissory note is assigned to a person,
upon which he recovers judgment in his own name, and he swears that
the assignment to him was absolute, in payment of a debt, the party assert-
ing that he took the assignment in trust to apply the proceeds in payment
of other and different indebtedness, must show that fact by clear and sat-
isfactory evidence.
2. Same — where two witnesses flatly contradict each other. Where two
witnesses upon an issue flatly contradict each other, the court trying the
case can, from the difference in their manner of testifying, from their
standing, and a variety of circumstances, determine much better than this
court which one is entitled to be believed. So that where a question of
fact depends solely on such evidence, this court must depend largely upon
the judge below for its determination.
Appeal from the Circuit Court of Livingston county; the
Hon. Charles H. Wood, Judge, presiding.
1873.] Sturman v. Streamer et al. 189
Opinion of the Court.
This was a bill in chancery, by Lydia Sturm an, against
Jacob Streamer, Richard Evans, Alfred E. Harding, and Wil-
liam Sturman, to compel Jacob Streamer to release a mort-
gage which he bought of Evans. The opinion of the court
states the leading facts.
Mr. James Fletcher, for the appellant.
Mr. A. E. Harding, for the appellees.
Mr. Justice Walker delivered the opinion of the Court:
Appellant filed a bill in the circuit court of Livingston coun-
ty, to the May term, 1871, against appellees. The facts out of
which this controversy grows are, that appellant owned a piece
of land, upon which she and her husband and family resided;
that she and her husband, to secure a debt of his, executed a
mortgage upon it, to Jonathan Duff. The debt was evidenced
by six notes, bearing date the 21st of June, 1864. One of
the notes was for $500, due five years after date, with ten per
cent interest. The other five were each for §50, and payable
annually, for five years. At the end of that time, the largest
note was not paid.
One Richard Evans purchased this note and mortgage from
Duff, and thereby became the legal owner thereof. The hus-
band of complainant sold from the farm a number of cattle,
for the sum of $752.81, to Patty and Hill, for which he took
their note, dated the 11th of November, 1867, and due the
1st of June, 1869, with ten per cent interest. But a payment
of $336.81 was made on this note. It was placed in the
hands of an attorney for collection; assigned by Sturman, the
husband, to Harding, the attorney, who brought suit in the
name of Streamer, and recovered judgment. He collected a
part of the judgment, which he paid to Evans, assigned the
judgment to him, and paid $88.43, the amount of the mort-
gage over and above the money collected and the unpaid bal-
ance of the mortgage, and Evans assigned the note and
mortgage to Streamer.
190 Sturman v. Streamer et aL [Sept. T.
Opinion of the Court.
Appellant claims that the note placed in Harding's hands
for collection was intended, and he was directed, when col-
lected, to apply the proceeds in payment of the mortgage;
and that the money arising from the judgment was mis-
appropriated, as a payment on indebtedness held by Streamer
against appellant's husband and son. On the other hand,
Streamer contends that the note was delivered to Harding
to be sued in his name, and the money, when collected,
was to be applied to the payment of indebtedness which
he held against Sturman and his son, and that such was
the arrangement entered into by Streamer, and that it was
further arranged that Streamer should purchase and hold the
mortgage, which he did.
Sturman swears the arrangement was as claimed by his
wife; whilst Streamer swears to the view of the case as he
claims it was entered into by them. In this, their evidence
is flatly contradictory, and is wholly irreconcilable; and Ave
must look to the record to see whether there is anything
which inclines to a preponderance one way or the other. On
this point, we find no other evidence except that the note was
assigned to Streamer, in whose name the recovery was had,
and who seems to have paid Harding his fee for suing and
recovering the judgment.
The form of the papers evidencing the ownership of the
judgment and the mortgage was in favor of Streamer. He
held the judgment in his own name, as the mortgage was, in
form at least, legally his; and, in the absence of proof to the
contrary, this is strong evidence of ownership, and to over-
come it, the countervailing evidence must be clear and satis-
factory, and not slight, indefinite and unsatisfactory. The
proof that he was but a trustee, and held the judgment for
the purpose of being, when collected, applied to discharge
the mortgage, devolved upon appellant; and has she made
such proof? We think she has failed. The evidence of her
husband is met by a positive contradiction by Streamer, to
say nothing of the forms of the law evidencing title in the
1873.] Lake View v. Eose Hill Cem. Co. 191
Syllabus.
latter. We are clearly of opinion that the evidence largely
preponderates in favor of his being the legal holder of the
mortgage, and that it is not satisfied.
We will not say that, on an issue of fact, it can not be
proved by one witness whose evidence is flatly contradicted
by another; but the judge, seeing the witnesses and hearing
them testify, can, from the difference in their manner, from
their standing, and a variety of circumstances, determine
which is and which is not truthful. We, not having the wit-
nesses before us, must depend largely on the circuit judge, in
such cases; and in this case, we can not, from anything we
find in the record, arrive at a different conclusion from that
reached by him.
Had the parties introduced Harding, the attorney, the
probabilities are that the case would have been relieved from
difficulty. They have not done so, and we must affirm the
decree on the evidence as it appears in the record.
Decree affirmed.
The Town of Lake View
v.
The Rose Hill Cemeteey Company.
1. Police power of State defined. The police power of the State is
co-extensive with self-protection, and is not inaptly termed "the law of
overruling necessity." It is that inherent and plenary power in the State
which enables it to prohibit all things hurtful to the comfort, safety and
welfare of society. It may be exercised to control the use of property of
corporations as well as of private individuals.
2. Constitutional law— legislation as to franchises which are publici
juris. So far as franchises of a corporation are publici juris, the State
may properly legislate touching them, and such legislation is not prohib-
ited by that clause of the constitution of the United States which forbids
The passage of laws impairing the obligation of contracts.
3. Same— police power, how far a political and how far a judicial ques-
tion. As a general proposition, it is the province of the law-making
192 Lake View v. Rose Hill Cem. Co. [Sept. T.
Opinion of the Court.
power to determine when the exigency exists calling into exercise the
police power of the State, but what are the subjects of its exercise, is
clearly a judicial questiou.
4. Same — police power subject to constitutional limitations. The exer-
cise of this power is subject to constitutional limitations. It is essential
that police regulations must have reference to the comfort, safety and wel-
fare of society, and, when applied to corporations, they .must not be in
conflict with any of the provisions of their charters. Under the pretense
of police regulations, a corporation can not. be divested of any of the
essential rights and privileges conferred by its charter.
5. Same — cemetery not a nuisance per se. A cemetery is not a nuisance
per se, and the subject of legislative prohibition. The legislature has the
constitutional right to pass laws to regulate the interment of the dead, so
as to prevent injury to the health of the community, and this in respect
to a private corporation acting under a charter, as well as with individ-
uals.
6. Same— prohibiting use of grounds for cemetery. Where a cemetery
company is chartered, with power to acquire lands for burial purposes,
not exceeding five hundred acres, and it acquires the lands, and expends
its money in preparing and adorning the same, an act of the legislature
prohibiting the company from using any of its lands outside its then
inclosure, for the burial of the dead, without regard to the manner of the
exercise of its franchise, is unconstitutional and void, as impairing the
obligation of the contract contained in the charter.
Appeal from the Circuit Court of Cook county : the
Hon. Erastus S. Williams, Judge, presiding.
Messrs. Hitchcock, Dupee & Evarts, Messrs. Beckwith,
Ayer & Kales, and Mr. Samuel W. Fuller, for the appel-
lant.
Messrs. Trumbull, Anthony, Church & Trumbull,
Messrs. Barber & Lackner, and Mr. Yan H. Htggtns, for
the appellee.
Mr. Justice Scott delivered the opinion of the Court :
This bill was filed by the town of Lake View, to restrain
the cemetery company from using certain lands, owned by it
since 1860, for the burial of the dead, in violation of the act
of March 29, 1869. Appellee was created a corporation by
1873.] Lake View v. Eose Hill Cem. Co. 193
Opinion of the Court.
the act of the 11th of February, 1859, with power to acquire,
hold and use lands, not exceeding five hundred acres, in the
town of Lake View, for cemetery purposes. The company
was authorized, by its charter, to lay off and plat its grounds,
to erect all necessary buildings, and to do all other acts that
might be necessary to prepare them for the purposes intended.
Its organization was completed, and a part of the lands pur-
chased were inclosed and platted, and large sums of money
have been expended in beautifying and preparing the grounds.
The lands are situated near the lake shore, about seven miles
north of the court house in the city of Chicago, and three or
four miles north of the northern limits of the city. The
town of Lake View contains about 8400 acres of land and
1500 inhabitants, but there are few dwellings near the ceme-
tery.
In 1867, the corporate authorities of the town of Lake
View passed an ordinance fixing the boundaries of the Rose
Hill Cemetery, and its provisions were re-enacted by the act
of the legislature, approved the 29th of March, 1869. The
lands, which are the subject of this litigation, are situated
outside of the limits, as fixed by the ordinance of the town
and the act of the General Assembly, and it is made unlaw-
ful for the company to use them for cemetery purposes, as by
its charter previously granted it was authorized to do.
The validity of the legislation restricting the cemetery
company from enlarging its grounds, is the principal question
in the case. While appellee claims its charter is in the na-
ture of a contract that the State can not rescind or impair, it
is conceded the State has the power to control the use of
its lands for burial purposes, so that its use may not injuri-
ously affect the health of the community, but the right to
prohibit the company altogether from its use for the objects
designated in the charter, is denied.
On the part of appellant, it is not denied, the charter of
appellee is a contract on the part of the State, that the com-
pany may exercise the powers and privileges enumerated in
13— 70th III.
194 Lake View v. Rose Hill Cem. Co. [Sept. T.
Opinion of the Court.
the act of the General Assembly, but it is insisted it must be
understood to have been made with reference to the possible
exercise of the rightful authority of the government, and that
the prohibition contained in the act is a proper exercise of the
police power of the State, the legislature being the sole judge
of the exigency when this power shall be employed.
The decision turns upon the single question, whether the
restriction imposed upon the company, as to the use of its
lands, as authorized by its charter, is a proper exercise of the
police power of the State.
Without reference to the definitions given by law-writers
and courts, of what is termed the police power of the State,
in its more comprehensive sense, in its applications to the
various relations of communities, when applied to matters
like the subject of this litigation, it may be assumed that it is
a power co-extensive with self-protection, and is not inaptly
termed the "law of overruling necessity.7' It may be said to
be that inherent and plenary power in the State which enables
it to prohibit all things hurtful to the comfort, safety and
welfare of society. It may be exercised to control the use of
property of corporations as well as of private persons. In
this regard there can be no distinction that can be justly
taken. So far as franchises of a corporation are publici juris,
it has always been held, that the State may properly legislate
touching them. Such legislation is not prohibited by that
clause of the constitution of the United States which forbids
the passage of laws impairing the obligation of contracts,
nor does it deprive such corporations of any of the substan-
tial benefits intended to be conferred by the acts of incorpor-
ation. The G. and C. U. B. R. Co. v. Loomis, 13 111. 548 ; Thorp
v. Rutland and Burlington R. R. 27 Verm. 140.
Mr. Cooley, in his work on Constitutional Limitations,
states the doctrine thus broadly: "All contracts and all
right, it is held, are subject to this power, and regulations
which affect them may not only be established by the State,
but must also be subject to changes, from time to time, with
1873.] Lake View v. Eose Hill, Cem. Co. 195
Opinion of the Court.
reference to the well-being of the community, as circum-
stances change, or as experience demonstrates the necessity."
Cooley on Limitations, 57.
As a general proposition, it may be stated, it is the province
of the law-making power to determine when the exigency
exists, calling into exercise this power. What are the sub-
jects of its exercise, is clearly a judicial question. There
must necessarily be constitutional limitations upon this power.
It is essential that such regulations must have reference to
the comfort, safety or welfare of society, and, when applied
to corporations, they must not be in conflict with any of the
provisions of the charter. It is not lawful, under the pre-
tense of police regulations, to take from a corporation any
of the essential rights and privileges conferred by its charter.
Potter's Dwarris on Statutes, 458; Cooley on Const. Lim.577.
The right to control is essentially different, and rests on a dif-
ferent principle from the power to repeal, alter or amend
charters of private corporations.
Burial places are indispensable. Convenient to the city of
the living, a depository of the dead must be established and
maintained. It concerns the public health, and if such places
were not prepared by private enterprise, it would be the duty
of the State to act in the premises. Among the most benefi-
cent acts of government is that legislation which fosters such
enterprises, and clothes an aggregate number of citizens with
with power to adorn and beautify grounds that shall receive
the remains of our dead. The sentiments of our better na-
tures, and the civilization of the age, demand that these
sacred places shall be made attractive and beautiful by the
employment of the highest skill in landscape culture, the
erection of costly monumental structures and architectural
adornings of elaborate design and workmanship. It is a part
of the common history of the country, that, in the vicinity
of large cities, where wealth and refinement abound, they are
so arranged. They attract hither, as to pleasant places, lovers
of the beautiful in nature, as to groves and parks that have
196 Lake Yiew v. Eose Hill Cem. Co. [Sept. T.
Opinion of the Court.
been adorned by the lavish expenditure of money, and the
works of those most skilled in that department of labor.
Such a place is very far from being a nuisance per se, and the
subject of absolute prohibition by legislative action. The
Town of Lake Yiew v. Letz et ah 44 111. 81.
There is nothing in nature but may be the instrument
of mischief, and the burial of the dead may be so done
as to be most injurious in its consequences to the people in
the vicinage. But that is not the question in the case at bar.
By this act of the General Assembly, it was intended to pro-
hibit, absolutely, the use of the grounds by the company for
burial purposes. The act of granting the charter was, itself, a
legislative construction that a cemetery is not necessarily a nui-
sance, if the grounds are well selected, and interments made
with proper care. That it might become so, through miscon-
duct, no one doubts. The General Assembly has the right to
pass laws to regulate interments to prevent injury to the health
of the community, and notwithstanding the company, in this
instance, is exercising franchises conferred by the State, it is
within legislative control in this regard.
There are now eight cemeteries within the limits of the
town of Lake View. The establishing of new ones may be
the subject of prohibition, as is sought to be done by this act
of the legislature. That question is not involved directly in
the decision of this case.
The evidence does not show there were any cemeteries
within the limits of the town at the date of the company's
charter, and when it was organized. The power to establish
and maintain a limited number of cemeteries in a given ter-
ritory, is a very different question from the right to establish
an unprecedented number, that would cover the whole face
of the country with burial places. The prohibition of the
latter may be within the rightful exercise of the police power,
and the other not. The one is an absolute necessity, and the
other might impose unreasonable burdens on a single com-
munity.
1873.] Lake View v. Kose Hill Cem. Co. 197
Opinion of the Court.
In the case at bar, by the provisions of its charter, the com-
pany was authorized to buy and hold land, not exceeding a
certain quantity, and to use it for cemetery purposes. This
it can rightfully do, and while the State has the unquestion-
able power to regulate the manner of its use, so far as it may
injuriously affect others, it can not, under the pretense of
making police regulations, repeal its charter and revoke its
franchises or deprive the company of any of the essential
rights conferred by its charter.
The act of the legislature does not profess to correct any
abuses in the use of the property, but is an arbitrary prohi-
bition of its use in accordance with the provisions of a char-
ter previously granted. Upon what principle can such a law
be maintained, or what "overruling necessity" was there for
its enactment? There is no pretense the cemetery, as con-
structed, is a nuisance, nor is there any charge that the health
or comfort of the people in the vicinity has been or will be
affected in the near or even in the distant future. If it can
be maintained at all, it must be by some absolute power by
which the General Assembly, it being the sole judge of the
extent of its powers, may declare what shall and what shall
not be independently of all constitutional restrictions. Refer-
ence is made to the reserved power of the State, denominated
"police power," as affording the requisite authority. It has
been said, the source of this extraordinary power may be
readily recognized as flowing from the people in their organ-
ized capacity, inalienable in its character, but that it is diffi-
cult to define its boundaries or limit its operations. We are
unwilling, however, to concede the existence of an indefinable
power, superior to the constitution, that may be invoked
whenever the legislature may deem the public exigency may
require it, by which a party may be capriciously deprived of
his property or its use, without compensation, whether such
property consists of franchises or tangible forms of property.
The constitution expressly provides, the right of property
shall remain inviolate, and, upon all enumerated subjects, it
198 Lake View v. Rose Hill Cem. Co. [Sept. T.
Opinion of the Court
must constitute a limitation on the exercise of all power, no
matter what its nature may he, nor whence its origin. If
such was not the case, there could be no constitutional secu-
rity for private rights, and the citizen would hold his prop-
erty, corporeal and incorporeal, by a most uncertain tenure.
In this instance, if the General Assembly can rightfully
prohibit the company from using its lands previously pur-
chased, which lie outside of the present inclosure, for ceme-
tery purposes, as authorized by its charter, upon the same
principle it could prohibit the use of the now unoccupied
portion of the inclosure, and as the property is valueless to
it for any other purpose, and as the company could not law-
fully use it, in any event, for other than burial purposes, it
would amount to a deprivation of its use, and almost a total
destruction of its value. The franchises conferred by the act
of incorporation would be rendered valueless, unless they
could be employed in the use of the lands previously pur-
chased, and the capital invested in them would be imperiled,
if not wholly lost.
It is not denied that the lands of this company are well
selected, and are situated at a proper distance from the popu-
lous part of the city, in a sparsely settled community, there
being but few dwelling in the immediate vicinity. If these
lands can not be used, a very grave question would arise —
where could the city find a burial place for its dead? The
same power that prohibits the use of these grounds would
extend to all places within the jurisdiction of the State. We
can not assent to the proposition, that the General Assembly
possesses any such power.
Under the power to regulate, the State can not deprive the
citizen of the lawful use of his property, if it does not inju-
riously affect or endanger others. Among the beneficent pro-
visions of Magna Charta is, the protection guaranteed the
subject in the free enjoyment of his life, liberty and property,
except as the same might be declared forfeited by the judg-
ment of his peers or the law of the land. This cardinal
1873.] Lake View v. Kose Hill Cem. Co. 199
Mr. Justice Sheldon, dissenting.
principle has been embodied in the constitutions of all the
American States, and, by a recent amendment, it is now incor-
porated in the Federal Constitution. In view of this consti-
tutional guaranty, it can not be said that every legislative
enactment that affects the interest of the citizen, is necessa-
rily the "law of the land." Such a construction would render
nugatory every constitutional provision intended for the pro-
tection of private property.
If a person is to be deprived of his private property, it
must be by the exercise of the right of eminent domain, and in
all such cases just compensation must be made.
We are of opinion this act, so far as it limits the bounda-
ries of Kose Hill Cemetery in the use of lands previously
owned, not exceeding 500 acres, for the purposes named in
the charter, is an unconstitutional exercise of power, and can
not be maintained.
The bill was properly dismissed, and the decree must be
affirmed.
Decree affirmed.
Mr. Justice Sheldon, dissenting :
I can not concur in the denial of the power to the legis-
lature to prohibit the particular use of land for the burial of
the dead, when deemed necessary for the protection of the
health, safety, comfort and welfare of community. It is an
authority which has ever been exercised by the law-making
power of a State. In Rome it was one of the laws of the twelve
tables, "hominem mortuum in urbe ne sepelite neve mcinitateP
The City Council of Charleston v. The Wentworth Baptist Church,
4 Strobhart, 310, KincaioVs Appeal, 66 Penn. State Rep. 423,
Coates v. The Mayor, etc., 7 Cowen, 584, are cases where such
laws as applicable to existing burial grounds, were held to be
constitutional and valid, and where their bearing upon the
subject of private rights underwent a full discussion.
Restraints of such a particular use of property, are held
to be a legitimate subject of the exercise of the police power
200 Lake View v. Rose Hill Cem. Co. [Sept. T.
Mr. Justice Sheldon, dissenting.
of the State. The power of the legislature to prohibit all
future interments within the limits of the city of Chicago, I
take it, is not to be questioned. There may be such a pub-
lic exigency, that the same public considerations which
would justify the exercise of the police power to make such
prohibition within the limits of the city, would operate to ren-
der proper the making of the same prohibition at such a
distance outside of the limits as that where the ground in
question is situated.
Were things to remain as they now are, with no further
increase of population in the vicinity of this cemetery ground,
a court, perhaps, might see that there was obviously no exi-
gency calling for this exercise of the police power; that it
was not a police regulation in fact, and if claimed to be such,
that it was only the pretense of a police regulation.
But it is apprehended that this police power may be exer-
cised, as well to prevent what may be likely to become a
nuisance, as to suppress an already existing one. In Cooley
on Const. Lim., 595, the author, in reference to this subject,
says: "And church Vards which prove, in the advance of
urban population, to be detrimental to the public health, or
in danger of becoming so, are liable to be closed against fur-
ther use for cemetery purposes."
In the case cited from 4 Strobhart, in speaking of this
police power, it is said : "It is not necessary to the exist-
ence of the power, that there be a present occasion for its
exercise. It is sufficient that a future emergency may demand
it." In view of the narrow strip of territory comprising the
town of Lake View, the large number of burial grounds
within its limits, the increasing use of them for burial pur-
poses, arising from the proximity of the town to the growing
city of Chicago, which it adjoins ; and in view of the rapidly
increasing population of that city, which is constantly over-
flowing the city boundaries, and filling up the adjacent towns,
the legislature, we may presume, for the purpose of prevent-
ing the mischievous consequences to the immediate neighbor-
1873.] Lake View v. Kose Hiel Cem. Co. 201
Mr. Justice Sheldon, dissenting.
hood from too many crowded burial grounds, has thought
proper to prohibit the extension of burial grounds within
that town.
Is it unreasonable to anticipate, in view of the marvelous
growth of the city of Chicago, that, at no far distant day,
this ground will be found to be in the midst of the dense
population of a city? There is especial fitness in preventive
legislation in a case of this kind, owing to the difficulty,
from its peculiar nature, of obviating a nuisance of this
character, after it has once actually become such. In refer-
ence to such, and like, considerations, in view of the proba-
bilities of the future, the legislature maybe supposed to have
acted, and made the police regulation in question. Is it for
a court to throw itself across the path of a law-making power,
and annul its enactment made for the welfare of an expected
populous community, because, in the opinion of the court, it
was uncalled for by a sufficient public exigency ? In Coates
v. The Mayor, etc., supra, in passing upon this question, the
court say : "It is of the nature of legislative bodies to judge
of the exigency upon which their laws are founded." This
is believed to be the well settled doctrine upon the subject;
and that whether there was a sufficient occasion for the exer-
cise of the police power in any given case, is not a judicial
question, but a political question, provided the exercise of
the police power be not colorable. It is admitted, that the
police regulation must be such an one in fact, and that the
use of private property is not to be abridged under the pre-
tense only of a police regulation. There would seem to be
enough in matters which are of public notoriety and of judi-
cial cognizance, to manifest that the exercise of the police
power here was not merely colorable, but that there was
occasion for a fair question as to the propriety of making
such a police regulation as was here made. It can not be
essential to the validity of the law, that the act itself should
declare, or that the allegations or proofs in the case should
show, the existence of facts evincing the necessity of the law.
202 Lake View v. Eose Hill Cem. Co. [Sept. T.
Mr. Justice Sheldon, dissenting.
It would present a new phase of judicial controversy, to have
an issue of fact in a court upon the necessity of the passage
of a law.
The prohibition of this particular use of one's land, then,
it is believed, would be valid in the case of a natural person;
but the Rose Hill Cemetery Company denies that it is so, in
respect to its property, because it has a chartered right to
make this particular use of it.
The charter of a private corporation does not imply an
undertaking on the part of the State, that in the same way
in which their exercise is permissible at first, may the cor-
porators continue to exercise their rights; but on the con-
trary, the rights and privileges which the charter confers, are
only thereby placed upon the same footing with other legal
rights and privileges of the citizen in respect to proper rules
for their due regulation, protection and enjoyment. Cooley
Const. Lim. 577.
The same doctrine has been repeatedly announced in decis-
ions of this court. G. and 0. U. R. R. Co. v. Loomis, 13111.
548; 0. and M. R. B. Co. v. McClelland, 25 id. 140; G. and
C. U. B. B. Co. v. Appleby, 28 id. 290.
"The limit to the exercise of the police power in these
cases must be this : the regulations must have reference to
the comfort, safety or welfare of society; they must not be
in conflict with any of the provisions of the charter; and
they must not, under pretense of regulation, take from the
corporation any of the essential rights and privileges which
the charter confers. In short, they must be police regula-
tions in fact, and not amendments of the charter in curtail-
ment of the corporate franchise." Cooley Lim. 577.
Is the restraint in this case in conflict with, not any literal
provision, but with any provision of the charter as rightly
understood? All contracts must be understood as made in
reference to the possible exercise of the rightful authority of
the government, and all property is acquired and held under
the implied liability that the use of it may be so regulated
1873.] Lake View v. Rose Hill Cem. Co. 203
Mr. Justice Sheldon, dissenting.
that it shall not be injurious to the rights of the community.
Legal Tender* cases, 12 Wall, 529; Oomm. v. Tewhsbury, 11
Mete. 55; Coram, v. Alger, 7 Cush. 86; 0. and M. E. E. Co.
v. McClelland, 25 111. 140. In the last cited case, this court,
speaking of private corporations, says : " When such bodies
accept their charters, it is upon the implied condition that
they are to exercise their rights subject to the power of the
State to regulate their actions as it may individuals." At
the time this company accepted its charter, it had ever been
usual for the law-making power to regulate and prohibit the
use of ground for the burial of the dead, whenever such use
was supposed to be detrimental to the welfare of crowded
populations. The privilege of burying the dead in any par-
ticular land, as being one to be exercised for profit, is very
unlike any ordinary commercial franchise. In view of these
circumstances, and the legal principles applicable, may it
not be said, that although the charter of this corporation
gives to it the right to acquire, and make the specific use of,
this land, for the burying of the dead, yet, that the charter
was accepted with the implied understanding that the prop-
erty would be subject to a proper exercise of the police power
of the State, and be liable to be restricted in its use for burial
purposes, as burial grounds ever had been, whenever, in the
progress of population, such restraint might be deemed neces-
sary to the health and welfare of the community.
In Fletcher v. Peck, 6 Cranch, 87, a grant of land by a
State was held by the Supreme Court of the United States
to be a contract executed, and to be, equally with an execu-
tory contract, within the protection of the clause of the Con-
stitution of the United States, which forbids the States pass-
ing any laws violating the obligation of contracts.
Where the State makes an absolute grant of a tract of land
to an individual, the grantee has the right, derived from the
grant, to use the land for the burial of the dead, to erect
upon it wooden buildings, or a powder magazine for the
storage of gunpowder, or a slaughter house and carry that on,
204 Lake Yiew v. Eose Hill Cem. Co. [Sept. T.
Mr. Justice Sheldon, dissenting.
or a building for any like noxious use. Yet the State, in the
proper exercise of the police power, might afterwards, without
constitutional objection, prohibit all such uses of the land, and
it would not be a violation of the contract implied by its grant
of the land, that the grantee might make all those uses of the
property. It is difficult to perceive why, in the case of the
grant by the State of the right and privilege to make one
particular use of land, as, for the burial of the dead, a sub-
sequent restriction by the State of that use, in exercise of
the police power, should be any more an impairment of the
obligation of a contract, than the like restriction would be
in the case of an absolute grant of land by the State, which
would carry the right of such particular use, and all other
uses, in virtue of the absolute dominion of the land.
That the clause of the constitution declaring, private
property shall not be taken for public use without just com-
pensation, is not applicable to laws made in pursuance of the
police power prohibiting a particular use of private property,
is abundantly settled by authority. See the authorities supra,
cited from other States.
The conclusion, then, to which I am led is, that the pro-
hibition by the legislature, in the exercise of the police power,
of the use of a portion of the land of the Rose Hill Cemetery
Company for burial purposes, was constitutional and valid.
Mr. Chief Justice Breese : I concur with Mr. Justice
Sheldon in the above opinion.
Mr. Justice Craig : I fully concur with Mr. Justice
Sheldon in the above opinion.
1873.] Huftalin V. MlSNER. 205
Svllabus.
David Huftalin
CORNELIA MlSNEE.
1. Evidence — -proof of service of demand. In a forcible entry and de-
tainer suit, the plaintiff testified that he served the demand for possession
of the premises on the defendant on a given day, which was the same day
the suit was brought: Held, that the proof was sufficient to sustain a find-
ing of service before the suit was brought, if any demand was necessary.
2. Forcible entry and detainer — how long before suit, must demand
be made. The statute relating to forcible entry and detainer, and which
requires a demand in writing for possession, does not require the demand
to be made a reasonable time, or any definite time, before the commence-
ment of suit.
3. Same — -proof of possession. Where the owner of premises had leased
them for one year, and, at the expiration of the term, went to the farm and
carried there a load of goods, and the tenant carried them up stairs into
a room, and stated that he rendered up possession, and the landlord per-
formed some acts preparatory to occupying the house, and left with the
intention of returning on the following Monday, and had a deed for
the whole premises, it was held, that this showed a sufficient possession
of the premises to enable the landlord to maintain forcible entry and de-
tainer against one taking forcible possession before his return.
4. Same — evidence to show extent of possession. Where actual possession
of a part of premises is shown to be in the plaintiff, in an action of forcible
entry and detainer, the plaintiff's deed for the premises is proper evidence
for the purpose of showing the extent of his possession.
5. Same — title not involved. The owner of land is liable in forci ble entry
and detainer, if he makes a forcible entry upon the actual possession of
the plaintiff'. Therefore it is not error to refuse to allow the defendant to
prove a mortgage of the premises, and that he entered under the mort-
gagee.
6. Non-joinder of parties — advantage of, how taken. If a married
woman sues alone, when she might be joined with her husband, the ob-
jection can only be pleaded in abatement. It can not be reached by an
instruction.
Appeal from the Court of Common PJeas of the City of
Aurora; the Hon. Richard G. Montony, Judge, presiding.
Mr. C. J. Metzner, for the appellant.
Mr. B. F. Parks, for the appellee.
206 Huftalin v. Misner. [Sept. T.
Opinion of the Court.
Mr. Justice Sheldon delivered the opinion of the Court :
This was an action of forcible entry and detainer, brought by
Cornelia Misner against David Huftalin, to recover the pos-
session of certain premises in DeKalb county, consisting of
about one hundred acres of land. The defendant below hav-
ing been found guilty before the justice of the peace, and,
also, in the Court of Common Pleas of Aurora, on appeal,
has brought the case here by appeal.
It is first objected that there is not proof of a demand in
writing for possession of the premises having been made a
reasonable time before the commencement of the suit. The
only testimony on that point, was that of the plaintiff. The
suit was commenced September 4, 1871; the written demand
of possession bears date of the same day. The plaintiff merely
testified to having served it upon the defendant, without
stating the time of service, or whether before or after the
commencement of the suit. Whether it was served before or
after the commencement of the suit, was a question for the
jury. Their finding that it was served before, we see no
reason to disturb. The statute does not require the demand
to be made a reasonable time, or any definite time, before the
commencement of the suit. We would not be understood
however, as admitting the necessity of a demand of posses-
sion in a case of forcible entry and detainer.
It is objected that the plaintiff did not show that she had
actual possession of the whole tract, at the time of the alleged
unlawful entry; that if she had any possession, it was merely
of one room in the house, and no more.
It was in evidence that the plaintiff had rented the prem-
ises to one Wyatt for one year, from August 28, 1870, to
August 28, 1871; that soon after the expiration of the lease,
she went to the farm, and carried there a load of goods; that
Wyatt carried them up stairs into a room, and stated that he
rendered up possession ; that she performed some acts prepar-
atory to occupying the house, and left, with the intention of
1873.] Huftalin V. MlSNER. 207
Opinion of the Court.
returning on the following jMonday. That on her return, on
that day, she found the defendant in possession and her goods
put out in the road. She introduced a deed to herself of the
premises. We think the evidence sufficiently shows that the
plaintiff was in the actual possession of the whole premises as
against Huftalin.
The deed to the plaintiff was properly admitted to show the
extent of her possession.
The court rightly excluded proof of a mortgage to Sher-
man, and that the defendant went into possession under the
mortgagee. Had Huftalin been the owner, he would have
been liable to this action if he had made a forcible entry
upon the plaintiff's actual possession. Reeder et al. v. Purdy
et ux. 41 111. 279.
Objection is taken to the refusal of an instruction asked by
the defendant, which was to the effect, that if the jury be-
lieved, from the evidence, certain facts, which would have
constituted a tenancy by the curtesy in William Misner, the
husband of the plaintiff, then they should find for the defend-
ant; and also to the giving of an instruction for the plaintiff,
that the fact that the plaintiff was a married woman, was no
defense to her right of recovery.
If a married woman does sue alone, when she might be
joined in the action with her husband, the objection can only
be pleaded in abatement.
The first time this objection was raised in the case, so far
as appears, was by the instructions. And although before a
justice of the peace, where this suit was commenced, there
are no written pleadings, yet any matter in abatement should
be insisted upon at an earlier stage of the suit than was done
here.
Finding no error in the record, we affirm the judgment.
Judgment affirmed.
208 Gal. & S. Wis. R. R. Co. v. Birkbeck. [Sept. T.
Statement of the case.
Galena and Southern Wisconsin Railroad Co.
Samuel Birkbeck.
1. Practice — objections to evidence must be made on the trial. A party is
not allowed to sit quietly by, and suffer objectionable evidence to be given
to the jury, and then urge his objection, for the first time, in this court.
He must object when the evidence is given, so that the other party may
correct the error, if such it be, in the lower court.
2. Kig-ht of way — damages to land not described in petition. Where
the petition for the condemnation of land for right of way describes
only one tract of the defendant's land, a portion of which it cuts off from
his entire farm, also consisting of another tract, the correct practice, in
order to recover damages as to the whole, is, to file a cross-petition ; but
where this is not done, and evidence is given as to the entire damages,
without objection, and the court protects the petitioner from further pro-
ceedings for the assessment of damages as to the balance of the farm, by
requiring the owner to execute a release as to it, the judgment or order
of the court will not be reversed at the instance of the petitioner, as the
error, if any, works no injury.
3. Where a petition to condemn land for a right of way describes only
one tract of the defendant's farm, which is cut off from the rest of the
farm, and damages are assessed only in respect to that tract, the owner
may afterwards cause the damages to be assessed as to the balance of his
land.
4. Same— damages by separating parts of a farm. The fact that a por-
tion of a farm is cut off by a railroad, is, in very many, if not in all, cases,
a permanent injury to the entire farm, and materially diminishes its value,
and is a legitimate source of damage.
Appeal from the Circuit Court of Jo Daviess county; the
Hon. William Brown. Judge, presiding.
This was a proceeding commenced by the appellant to con-
demn the right of way over certain land belonging to the
appellee. The petition was for the right of way over the
north-west quarter of section 27, township 29 north, range
1 west of the fourth principal meridian, of which the defend-
ant owned 123 J acres. The defendant also owned the north-
east quarter of the same section, upon which he had three
1873.] Gal. & S. Wis. E. E. Co. v. Biekbeck. 209
Opinion of the Court.
buildings, and the whole was occupied as an entire farm.
The jury assessed the damages at $1180. The other material
facts appear in the opinion of the court.
Mr. L. Shissler, for the appellant.
Messrs. W. Weigley & Son, for the appellee.
Mr. Justice Scholfield delivered the opinion of the
Court :
This was a proceeding by appellant to condemn the right
of way for its railroad over certain land owned by appellee.
It appears, from the record, that the petition only described
the quarter section of land over which the right of way was
desired, omitting entirely another quarter section which ad-
joined it, and on which appellee's buildings were. The two
tracts formed appellee's farm; and, upon the trial, evidence
was given, without objection, showing how much damage was
done to the whole farm by reason of the land taken by appel-
lant for its right of way, and of the damage done by cutting
off a portion of the tract described in the petition, from the
balance of the farm.
The jury, in their verdict, assessed appellee's damages at
$1180, and the court overruled a motion for a new trial, and
rendered judgment upon the verdict, directing, as a part of
its judgment, that appellee should execute and file with the
clerk a release to appellant for all damages sustained by him
to the land not described in the petition, on account of the
right of way over the land embraced in the petition.
Appellant moved in arrest of judgment, which was over-
ruled by the court. Exceptions were taken to the overruling
of the motions for a new trial and in arrest of judgment, and
upon these exceptions we are now asked to reverse the judg-
ment of the court below.
It is, first, contended that the finding of the jury was con-
trary to the evidence. Quite a number of witnesses testified,
14— 70th III.
210 Gal. & S. Wis. R. R. Co. v. Biekbeck. [Sept. T.
Opinion of the Court.
on each side, to the amount of appellee's damages. Those
on behalf of appellant, for the most part, fixed the damages
at an amount as large, if not larger, than that returned by
the jury; while those on behalf of appellee fixed the amount
much smaller.
The question in this conflict was one which the jury were
peculiarly qualified to determine, and we are not disposed to
revise their finding, especially as it does not appear to us that
any serious injustice has been done.
It is next contended that the court below erred in allowing
evidence to go to the jury of the amount of damages sustained
by appellee to the land not described in the petition, in con-
sequence of a portion of that that was described in it being
cut off by the railroad from the balance of the farm. This
objection is now urged for the first time, and it comes too
late. It is not allowed to a party to sit quietly by and suffer
objectionable evidence to be given to the jury, and then urge
his objection, for the first time, in this court. He must inter-
pose his objection when the evidence is given, so that the
opposite party may have an opportunity to correct the error,
if such it be, in the lower court.
It is also contended that the court below erred in ordering
appellee to execute a release to appellant for all damages sus-
tained to the land, not described in the petition. As this
order is intended purely for the benefit of appellant, we are
unable to see how it can, even if erroneous, work it any
injury. It certainly takes nothing from it, and imposes no
burden upon it.
It would have been more regular and satisfactory, in this
case, had appellee filed a cross-petition before the trial, claim-
ing damages to the land not described in appellant's petition,
and, in this way, have brought the question before the court;
but as the same evidence was given on this trial, without
objection, that could have been given on that, and the judg-
ment of the court effectually protects appellant against future
litigation on this account, we see no error by which appel-
1873.] Chicago & K W. Ry. Co. v. Ryan. 211
Syllabus.
lant's rights have been prejudiced. The fact that a portion
of a farm is cut off by a railroad, is, in very many, if not all,
cases, a permanent injury to the entire farm, and materially
diminishes its value. This is a legitimate source of damage,
under the act pursuant to which this condemnation was had,
and if such damage had not been assessed in this proceeding,
appellee could have caused it to be assessed in another; but,
having been assessed, we think the court has ample power to
enforce its judgment, in respect to both parties, and that,
under all the circumstances, the judgment should be affirmed.
Judgment affirmed.
The Chicago and Nokthwestebn Railway Co.
v.
Andkew Ryan.
1. Negligence — on the part of the plaintiff, contributing to his injury.
It is the duty of a person, desiring to cross a railroad track, to act with
prudence, and use every reasonable precaution to avoid an accident, and,
failing to do so, he can have no recovery for an injury which might have
been averted by the exercise of ordinary care.
2. Where the plaintiff, when about to cross a railroad track in a city,
on the usual route from the place where he labored, to his residence,
looked up and down the track, and saw that it was clear, there being no
engine in sight, and then started, and had proceeded only a few steps,
when a switch engine of the defendant came around the curve, behind
him, at a rapid rate of speed, without giving the usual signals, and struck
him, the whistle of a work shop near by being blown at the time, it was
held, in an action by him against the railroad company, to recover for the
injury, that negligence could not, under the circumstances, be attributed
to the plaintiff.
3. Same— -facts showing negligence on the part of the company. In a suit
by the plaintiff against a railroad company, to recover for a personal in-
'jury received at a railroad crossing in a city, the plaintiff being without
negligence on his part, it appeared that the plaintiff was struck and run
over by a switch engine of the company, which had come around the
curve, and was running at a rapid speed, and that neither the engineer
nor fireman saw the plaintiff until after the accident; that a boy, not an
212 Chicago & N. W. E,y. Co. v. Byan. [Sept. T.
Opinion of the Court.
employee, was occupying the fireman's place, and had charge of the bell
rope, and if the bell was rung at all, it was done by the boy by way of
amusement, and that the engineer and fireman were laughing and talking,
instead of watching to guard against injury: Held, that the facts tended
strongly to show that the engine was not properly managed, and warranted
the jury in finding negligence on the part of the company.
4. Same — instruction as to. In an action against a railroad company,
to recover for injury received through the alleged negligence on the part
of the servants of the company, the court, in some of its instructions, put
the case, that, if the accident happened without "fault" on the part of the
plaintiff, etc. It was urged, that the words "ordinary care" should have
been used in place of the word fault, but it was held, that the word
used did not change the sense or meaning of the instructions, and did not
make them erroneous.
5. New trial— on finding of the facts. The law having intrusted the
trial of questions of fact to a jury, a verdict will not be disturbed, unless
it is manifestly against the weight of evidence, or unless necessary to pre-
vent a plain perversion of justice.
Appeal from the Superior Court of Cook county ; the
Hon. William A. Porter, Judge, presiding.
The opinion of the court contains a statement of all the
facts necessary to an understanding of the case. The seventh
instruction given for the plaintiff, after submitting the facts,
hypothetically, upon which the defendant was liable, also
stated, "and that, therefore, and "without fault on plaintiff's
part, the accident happened, then the jury should find a verdict
in favor of the plaintiff." It was urged, in this court, that the
words "ordinary care" should have been used in place of the
word "fault."
Mr. B. C. Cook, for the appellant.
Mr. Melville W. Fuller, for the appellee.
Mr. Justice Craig delivered the opinion of the Court :
This was an action on the case, brought by appellee against
appellant, in the Superior Court of Cook county, to recover
for personal injuries by being run over by a switch engine,
near the depot, in the city of Chicago.
1873.] Chicago & N. W. Ey. Co. v. Eyan. 213
Opinion of the Court.
The cause was tried before a jury, and a verdict returned
in appellee's favor, for $3500. A motion was made by appel-
lant for a new trial, which was overruled, and judgment ren-
dered upon the verdict.
A reversal of the judgment is insisted upon by appellant,
mainly on the ground that the verdict is not sustained by the
evidence.
It appears, by the record, that the accident occurred on the
22d day of February, 1868. At the time, appellee was em-
ployed by the company as a day laborer, at its carpenter shops.
Appellee resided north of the carpenter shops, and, in going
from the shops to his residence, he had to pass over the tracks
of appellant's road. This was his usual route, and in fact
his only one.
It is claimed by appellant, first, that appellee was guilty of
gross negligence at the time the accident occurred; second,
that the servants of the company in charge of the engine used
ordinary care, and were free from negligence. If the evidence
sustained these positions, no recovery could be had.
It is the undoubted duty of all persons who undertake to
cross a railroad track, to act with caution and prudence, be-
cause it is apparent that such crossings are always more or
less dangerous. This being the case, those who desire to
cross must use every reasonable precaution to avoid an acci-
dent, and if they fail to do this, no recovery can be had for
an injury which might have been averted by the exercise of
ordinary care.
On the evening the accident happened, appellee, on the
blowing of the six o'clock whistle, which gave notice to the
employees to quit work, started from the shops, to go to his
residence. The track was only a few steps from the shop
door. He testifies, and upon this he is uncontradicted, that
he looked up and down the track, and saw that it was clear,
no train or engine in sight; he then turned north, and had
only proceeded a few steps, when the engine came around the
curve, behind him, from the direction of the round house, and
214 Chicago & K W. Ky. Co. v. Ryan. [Sept. T.
Opinion of the Court.
he was struck. When Ryan looked up and down the track,
and saw that no train or engine was in sight, he might reason-
ably conclude that it was safe to proceed, and if an engine
was upon the track, and not in sight, he would be warned of
its approach by the sound of the bell or whistle, and having
used this precaution, it can not, with propriety, be said he
was guilty of negligence.
In regard to the conduct of the servants of appellant in
charge of the engine, the evidence, on some points, is con-
flicting. Appellee testifies that the bell was not rung or the
whistle sounded ; that the engine was running at a high rate
of speed.
The switchman, who saw the accident, says the engine was
running at the speed of about six miles per hour; he could
not tell whether the bell was rung or whistle sounded ; he
says the six o'clock whistle was blowing at the time, and he
could not hear the bell or whistle on the engine.
The fireman and engineer, and one other witness, testify
the bell was rung.
The jury, under the instructions on behalf of appellant,
found, by a special verdict, that the bell was rung carelessly
before and after the accident, but was not ringing at the time it
occurred. There are, however, some undisputed facts in this
case which would warrant the jury in arriving at the conclu-
sion those in charge of the engine were guilty of gross care-
lessness and negligence.
It is shown that appellee was not seen at all by the engi-
neer or fireman on the engine, and they did not know that he
had been struck, until they were stopped by a signal from
the switchman. It further appears, that a boy was on the
engine, occupying the seat of the fireman, who was not in
the employ of the company, and that he had charge of the
bell rope, and if the bell was rung at all, the ringing was
done by the boy by wTay of amusement.
Appellee testifies that, at the time the engine passed over
him, he saw the engineer and fireman, and they were laugh-
1873.] Chicago & N. W. Ry. Co. v. Ryan. 215
Opinion of the Court,
ing. This is not contradicted by any one, and, when consid-
ered in connection with the fact that Ryan was not seen by
either of them when the accident occurred, and the additional
fact, that the boy was in the seat of the fireman, in charge of
the bell, shows, or at least tends very strongly to show, that the
engine was not properly managed, and those whose duty it
was to be on the watch, to guard against the destruction of
limb and life, were amusing themselves, while a boy on the
engine, for mere sport, was the only person giving any atten-
tion to it, or the destruction it might cause to those who
might be passing from the shops to their homes at that par-
ticular hour.
These facts were all before the jury, and it was for them,
from the facts proven, to determine whether the injury re-
ceived by appellee was caused by his negligence or that of the
servants of appellant in charge of the engine, and, as has
been repeatedly held, we will not disturb the verdict, unless
it is manifestly against the weight of evidence. As was said
in Chicago and Alton H. R. Co. v. Shannon, 43 111. 338, the
law intrusts the trial of issues of fact to a jury, and there the
court must leave it, except so far as it may be necessary to in-
terfere to prevent a plain perversion of justice.
In this case, the issue formed was fairly presented to the
jury, and we can not say, from a careful inspection of the
whole record, that the verdict is clearly against the weight of
evidence.
It is claimed by appellant that the court erred in giving
appellee's 1st, 6th, 4th and 7th instructions. The 1st, although
inartificially drawn, is, in substance, correct. It conforms to
the law, as declared in this case when it was before this court
at the September term, 1871. (Ryan v. C. and N. W. By. Co.
60 111. 172.) The only objection made to the 6th instruction
is, that it is not properly guarded. Upon an examination of
it, we think the word "solely ," contained in the instruction,
properly qualifies it, and that it is correct, as given by the
court. The only point raised as to the 4th and 7th instruc-
216 Fisher v. Cornell. [Sept. T.
Opinion of the Court.
tions is, the word "fault" is used where the words "ordinary
care" should have been used. This is very technical. We
do not see how the use of the words insisted upon could
change the meaning or sense of the instructions.
As we see no substantial error in the record, the judgment
will be affirmed.
Judgment affirmed.
William D. Fisher
V.
Latham Cornell.
Homestead — lost by abandonment. In order to claim a homestead exemp-
tion, the debtor must actually occupy the premises as a residence. If the
head of the family voluntarily leaves the premises, and removes to another
place, where he and his family reside for several years, leaving the prop-
erty in the possession of tenants, the exemption will be lost.
Writ of Error to the Circuit Court of Stephenson county ;
the Hon. William Brown, Judge, presiding.
Mr. J. H. Knowlton, for the plaintiff in error.
Mr. Thomas J. Turner, for the defendant in error.
Mr. Chief Justice Breese delivered the opinion of the
Court :
This was a bill in chancery, in the Stephenson circuit
court, to foreclose a mortgage, and a decree accordingly.
The only point made by plaintiff in error is, that the court
decreed a sale of the premises without regard to the home-
stead right of the defendant.
There was no release of the homestead in the mortgage,
but the proof is full to the point that plaintiff in error
removed with his family to another county, where he resided,
1873.] C. & N. W. Ky. Co. v. N. L. Packet Co. 217
Syllabus.
and had resided for four or five years, leaving the premises
in possession of tenants, who occupied them.
The statute requires, in order to claim the right of home-
stead, that the lot of ground and the buildings thereon must
be occupied as a residence of the party claiming the right.
Scates' Comp. 576.
In several cases, this court has considered this provision,
and placed a construction upon it, holding that the head of
the family must actually reside on the premises. Oabeen v.
Mulligan, 37 111. 230; Titman v. Moore, 43 ib. 169. These
cases, and others which might be cited, are full to this point.
The evidence is clear, of an abandonment of the premises as
a homestead.
The decree of the circuit court is, in all things, affirmed.
Decree affirmed.
The Chicago and Noethwesteen Raileoad Co,
The Noetheen Line Packet Co.
1. Notice— of pendency of suit, when conclusive and to what extent. If
one carrier is sued for the loss of goods, and notifies a second carrier, to
whom he delivered the same for transportation, of the pendency of the
suit, and requires him to defend, the judgment against the first is not
conclusive as to the question of the liability of the second. It is only
conclusive on such privies as are liable over, and then only as to the fact
that the judgment was recovered, and that it was for the value of the
goods lost; but the judgment is not so far conclusive of the question of
privity, as to fix the liability of the person served with notice.
2. Judgment — binding effect as to primes. A person holding a covenant
running with the land, when sued for the title or upon his covenant, may
give notice to a prior grantor, in the chain of title, to sustain the same, and
on his failure to do so, the judgment maybe read in evidence, against him,
to show the recovery, and the amount the last covenantor had to pay ; but
the remote covenantor may show that the recovery was not a breach of
his covenant, and his undertaking or liability must be shown otherwise
than by the judgment
218 C. & N. W. By. Co. v. N. L. Packet Co. [Sept. T.
Opinion of the Court.
3. Carrier — liability to first carrier for loss of goods. If a carrier
undertakes to transport goods to a given point, and, at the end of its line*
delivers the same to a packet company, who agrees to deliver the same at
a certain point to a railway company, which it does, and the goods are
lost by the fault of the latter company, and the first carrier is compelled
to pay for the goods, it can not recover over of the packet company,
which has performed its contract, but must look to the railway company
to whom they were last delivered.
4. Same — when bill of lading is binding as a contract. "Where a carrier
delivers goods to a forwarder, who is its agent and the agent of the com-
pany to whom the same are delivered, and he gives a bill of lading lim-
iting the duty of the latter to deliver the goods to another company, this
will make the bill of lading a contract, binding upon the first and second
carriers, and the second carrier will not be responsible for the delivery
of the goods to the consignee by the last carrier.
5. Same — liability when he ships over intermediate lines. If goods are
lost by one carrier, in a line of carriers composed of several, the first to
whom the goods are delivered, and who agreed to transport them to their
destination, will be liable to the owner, and the latter will not be required
to sue the carrier who lost the same, but this rule applies only in favor of
the owner of the goods. The first carrier, if he sues to recover what he
has paid, must sue the carrier in default.
Appeal from the Circuit Court of Whiteside county; the
Hon. William W. Heaton, Judge, presiding.
Mr. A. M. Herrington, and Mr. B. C. Cook, for the appel-
lant.
Mr. William E. Leffingwell, for the appellee.
Mr. Justice Walker delivered the opinion of the Court:
In the month of October, 1866, Emanuel Sohn delivered
to appellant, and took a receipt therefor, three boxes, one
cask, two barrels, and one chest, or bureau, containing house-
hold goods, consigned to himself, at Lee Summit Station,
Jackson county, Missouri. The goods were all received but
the chest and its contents, which never came to hand. He
commenced suit against appellant, and it, on the 27th of
November, 1871, served a notice of the pendency of the suit,
and its nature, and to appear and defend, on the agent of
1873.] C. & K W. Ry. Co. v. N. L. Packet Co. 219
Opinion of the Court.
appellee. A trial was had at the May term, 1872, resulting
in a judgment in favor of Sohn, for $1128. Appellant after-
wards compromised, and paid $750 to him, in satisfaction of
the judgment. Thereupon, appellant brought this suit, and,
on a trial in the court below, a judgment was rendered for
defendant. To reverse that judgment, the case is brought to
this court, and various errors are assigned.
The proof shows that the chest and other goods were
received by appellee, and duly transported by their line of
boats from Fulton, jn this State, to Hannibal, in the State
of Missouri, and there delivered to the Hannibal and St. Jo.
Railroad Company; that the goods, to reach their destination,
had to pass over that road, and that it connected with appel-
lee's line of boats, at Hannibal, and that was the proper point
to deliver the goods, to reach their destination, and that
appellee was in no default in carrying and delivering the
goods to the agents of the railroad.
It further appears that the chest was received, and remained
in the warehouse of the railroad company until in the spring of
1869. The agent testifies that he saw the chest in the depart-
ment of unclaimed freight, in 1867, and that it was opened
and the contents sold at auction, in the spring of 1869, for
about $80. The auctioneer testified that there were letters in
the trunk, directed to Emanuel Sohn.
The receipt given by appellee, when the goods were deliv-
ered to it, states that they were to be delivered, without delay,
at the port of Hannibal, to the Hannibal and St. Jo. Eailroad
or assigns, he or they paying freight. The receipt was
given to W. C. Snyder, as agent and forwarder. From the
evidence, it is clear that appellee received the goods from
appellant, and it also appears that appellee delivered them to
the Hannibal and St. Jo. Railroad, which was a part of the
line over which the goods were to be transported. These facts
we shall consider as proved.
The first question presented for our consideration, is,
whether the notice served on Snyder of the pendency of the
220 C. & N. W. By. Co. v. N. L. Packet Co. [Sept. T.
Opinion of the Court.
suit by Sohn, against appellant, concluded appellee from
showing that it had fully performed its contract, and had
never incurred any liability. It is denied that the notice to
Snyder was notice to appellee; but we shall not stop to deter-
mine that question, but treat it as notice to appellee. Then,
what was the effect of the notice ? If appellee is privy, then
it concludes it from denying that the goods were lost, that
the judgment was recovered against appellant, and that it
was for the value of the goods lost; but it is believed that no
case can be found which holds that such a notice is so far con-
clusive of the question of such privity as to render the person
served with notice liable. It is only conclusive on such
privies as are liable over, and then only to the extent we
have just indicated.
Whether such a relation exists as to make the notice an
estoppel, to that extent, is an open question that may always
be contested; but when it is shown that the relation does
exist, and that a recovery over may be had against the per-
son on whom the notice was served, then he is estopped to
deny that the judgment was recovered against his privy,
that the wrong was perpetrated, or that the recovery was too
large. In such a case, the judgment may be read in evidence
to show that there had been a recovery against the person
first sued, and the amount he has been compelled to pay, as
fixing the measure of damages, but the judgment is evidence
for no other purpose. Whether appellee was liable over to
appellant, was not in issue in the first suit, and it would be
manifestly unjust to conclude it on that question without
being heard. It would violate the principle, that all persons
must be afforded the opportunity of being heard before they
can be deprived of life, liberty or property. This is funda-
mental and axiomatic, and must be regarded in all legal pro-
ceedings.
The application of the rule to such notices is illustrated in
cases of covenants running with lands. A person holding
such a covenant, being sued for the land or on his covenant,
1873.] C. & N. W. Ey. Co. v. K L. Packet Co. 221
Opinion of the Court.
may give notice to a prior grantor, in the chain of title, to
sustain the title, and on failure to do so, the judgment may
be read in evidence, against him, to show that the last cove-
nantor had been sued, a judgment recovered against him, and
that his covenant had not been performed, and the amount
he had been compelled to pay; and, in such a suit, the plain-
tiff would not be required to prove the title under which the
eviction was had, except that it was not a title derived from
himself. Rawle on Cov. for Title, 209.*
The remote covenantor, it will be observed, is still at lib-
erty to show that the recovery was not a breach of his cove-
nant for title, that his covenant was special, or that it did
not run with the land, or that he made no covenant. His
undertaking must be shown otherwise than by the record of
the judgment, and he may contest that question as though
he had not received a notice to appear and defend.
If these views are correct, and we do not doubt them, it
then follows that appellant was bound to show, independent
of the record of the judgment, that appellee, by its contract,
had become liable for the acts of the transportation lines
beyond it, or had lost or misappropriated the goods.
Without reference to what the liability of appellee would
have been had its contract not been in writing, the terms of
the contract contained in the bill of lading are clear and
explicit. It agrees that it will carry the goods, without delay,
from Fulton to Hannibal, and deliver them to the Hannibal
and St. Jo. Railroad or assignees, he or they paying freight
for the goods; and there is no pretense that appellee did not
comply with the terms of this agreement ; nor is it claimed
that appellee has come short of performing its entire duty in
transporting these goods ; nor is there any dispute that the
Hannibal and St. Jo. Railroad was the party who. detained
and appropriated the goods as unclaimed freight. If appellee
is liable, it is upon other grounds than those embraced in the
contract, or from its breach.
See also, Bisk v. Woodruff, 15 111. 15.
222 C. & N. W. Ey. Co. v. N. L. Packet Co. [Sept. T.
Opinion of the Court.
It is, however, urged that the bill of lading was not given
to appellant ; that it was not a party to it, and was not bound
by it; that it had a right to insist that there was no express
agreement, and it had a right to insist upon an implied agree-
ment, which includes a guaranty that the goods should reach
their destination. The contract was made with Snyder, as
agent and forwarder, and he is so named in the bill of lading;
and he testified that he was agent and forwarder for both
companies. This evidence, we think, is entirely sufficient to
make the contract in the bill of lading the contract of the
parties to this suit, executed by and to their several agents,
and executed under such circumstances as to bind them to its
provisions. Such is the effect of the evidence.
But the question arises whether appellee, by force of the
duty devolving on it as a common carrier, became liable for
the neglect of duty by the other carriers into whose hands the
goods would go after leaving its possession, notwithstanding
its agreement contained in the bill of lading. In the case of
Illinois Cent. R. B. Co. v. Frankenberg, 54 111. 88, it was said,
that, in adopting a rule, where goods are lost by one carrier,
in a line of carriers composed of several, it was more just to
hold the carrier to whom the goods are delivered by the con-
signor, liable, than to require him to spend time and money
in searching for the carrier who produced the loss, and to
bring suit for the injury in a distant State; that the interme-
diate roads should be considered the agents of the road first
receiving the goods, as they have facilities not possessed by a
consignor of tracing out the losses of property thus shipped,
and that all have, or can have, running connections with each
other, and the company first receiving the goods should be
liable to the consignor. It is not intimated, in that case, that
the owner or consignor may sue and recover of any carrier
through whose hands the goods would have to pass, but the
carrier first receiving them, or the carrier who has neglected
its duty. On the other hand, there is a strong implication
that the consignor must sue either the first carrier or the car-
1873.] Zepp v. Hagee. 223
Syllabus.
rier committing the wrong; and we are not willing to carry
the rale beyond that extent, and must confine it within that
limit.
If the remote carriers are the agents, or are to be consid-
ered as such, of the carrier first receiving the property for
transportation, and the goods are lost or damaged by another
in the line, the first carrier having been compelled to adjust
the loss, if he sues to recover it back, he must proceed against
the carrier who has occasioned the loss. He has, or can have,
the means of readily finding where it occurred; nor can a
person, as a general rule, sue any agent of his but the person
who has omitted the duty or perpetrated the wrong. He has
no election to sue an agent who has performed his entire duty,
and leave him to sue another agent who is guilty of a failure
to perform his duty, and has produced the injury to the prin-
cipal. From these considerations, it follows that appellee is
not liable for the loss.
This view of the case renders it unnecessary to consider
the other questions raised on the record, and the judgment
of the court below is affirmed.
Judgment affirmed.
Samuel Zepp
Samuel M. Hagee.
1. Service — by deputy sheriff. Where a summons is served by a dep-
uty sheriff, it is of no importance that the name of the sheriff is written
below that of the deputy in the return, instead of above, as is usually done.
2. Evidence — parol, to contradict record of a judgment. If the record
of a judgment rendered in a sister State shows that the defendant was
personally served with process, or recites any other facts showing juris-
diction over his person, parol evidence is inadmissible to contradict the
same in a suit upon a transcript of the record properly certified.
224 Zepp v. Hager. [Sept. T.
Opinion of the Court.
3. Judgment — of sister State, how far conclusive. * A judgment ren-
dered in a sister State is not regarded as foreign, but as domestic, and the
only question that can he inquired into in a suit upon the same, is, whether
the court had jurisdiction of the subject matter, and of the persons of the
parties.
4. Same — evidence as to question of jurisdiction. If it appears, from the
record, that the court which pronounced judgment, had jurisdiction of
the person of the defendant, it will be conclusive of the rights of the par-
ties, and no evidence can be heard to impeach it. But where the record
fails to show a proper service, or an appearance, the defendant may show
that he was not within the territorial jurisdiction of the court, and in no
manner submitted himself to its jurisdiction.
5. Same— -pleading — replication to pleas denying jurisdiction. If the
defendant, when sued upon the record of a judgment of a sister State,
which shows a personal service, pleads, denying the jurisdiction of the
court over his person, the plaintiff should properly reply that the record
shows a personal service.
6. Error — that works no injury. The exclusion of evidence that could
not have changed the result of a trial, affords no ground of reversal.
Appeal from the Superior Court of Cook county; the Hon.
Joseph E. Gaby, Judge, presiding.
Messrs. Kunyan, Avery, Loomis & Comstock, for the
appellant.
Messrs. Hutchinson & Luff, for the appellee.
Mr. Justice Scott delivered the opinion of the Court :
This action was upon a judgment recovered by appellee
against appellant, in the District Court in the city and county
of Philadelphia.
The first plea was nul tiel record, upon which issue was
joined; and the second and third pleas were, in substance, the
same — that appellant was not, at the time of the commence-
ment of the suit in the District Court, or during the pendency
thereof, an inhabitant or resident of the State of Pennsylva-
nia, or in any manner subject to the jurisdiction of that court,
and from the time of the commencement of the suit, until
the rendering of the supposed judgment, he was not within
1873.] Zepp v. Hagek. 225
Opinion of the Court.
the limits of that State; that he was never served with pro-
cess, nor had any notice of the pendency of the cause, and
that he never appeared to defend the suit, nor authorized any
one to appear for him.
Upon a trial, a certified copy of the record upon which the
action was founded, was introduced in evidence, from which
it appeared process had been regularly issued therein, and
personally served on defendant in the cause. It is objected,
the service was bad, because it was made by a deputy, and
not in the name of the sheriff. The return of service pur-
ports to be signed by a deputy, and also by the sheriff, and,
so far as we can know, it was signed by both of them. But,
if the service was made by a deputy, as counsel insist it must
have been, if made at all, the fact the name of the sheriff
was signed, indicates it was done in his name, and that is
sufficient to constitute good service. It is of no importance,
the name of the sheriff is written below that of the deputy,
instead of above, as is usually done.
Appellant was sworn as a witness, and offered to prove the
facts set forth in his second and third pleas, but the court
refused to permit the evidence to be given, and that decision
is the principal cause assigned for the reversal of the judgment.
The court in which the judgment was rendered, was a court
of general jurisdiction, and it is shown, from the record, the
court had jurisdiction of the person of defendant, by sum-
mons regularly issued, and proof of personal service. Un-
questionably, the judgment would be conclusive of the rights
of the parties in the State where it was rendered, and the
question that arises is, whether, in an action to have execu-
tion of a judgment in this State, defendant can contradict, by
parol evidence, the recital of facts in the record showing
jurisdiction.
There is some obscurity in the authorities of the several
States upon this question, but we think the rule deducible
from the adjudged cases since the decision in Mills v. Duryea,
7 Cranch, 481, is, that such judgments are not to be regarded
15— 70th III.
226 Zepp v. Hager. [Sept. T.
Opinion, of the Court.
as foreign, but as domestic judgments, and the only question
that can be inquired into is, whether the court which pro-
nounced the judgment had jurisdiction of the subject matter
and the persons of the parties. Accordingly, it has been
held that nil debet is not a good plea in an action of debt on
a judgment rendered in a sister State. Chipps v. Yancey,
Breese, 19.
By a provision of the Federal Constitution, and an act of
Congress passed in pursuance thereof, it is provided, that
records and judicial proceedings authenticated "as therein
required/' shall have such "faith and credit given to them, in
every court within the United States, as they have, by law or
usage, in the courts of the State from whence the said records
are or shall be taken."
At first, it was contended that the act of Congress only
provided for the admission of such records as evidence, but
did not declare the effect of the evidence, when admitted;
but, in Mills v. JDuryea, supra, it was held, the act did declare
that the record, duly authenticated, shall have such faith and
credit as it had in the State from whence it was taken, and
therefore, if, in that State, it had faith and credit of evidence
of the highest nature, viz : record evidence, it should have
the same in every other State. It is essential, in every case,
before such faith and credit shall be given to judicial records
of other States, the court that pronounces the judgment shall,
itself, have jurisdiction of the subject matter of the suit and
of the person of the defendant, for, if it is rendered without
such jurisdiction, it is absolutely void, and it would be against
good conscience to permit a party to have execution of such
a judgment in another State. It is for this reason the courts
have permitted the question of jurisdiction to be made the
subject of inquiry. The general doctrine, no doubt, is, where
it appears, from the record, the court which pronounced the
judgment, had jurisdiction by service of process or the per-
sonal appearance of the defendant, it will, under the consti-
tution and the act of Congress, be deemed conclusive of the
1873.] Zepp t>. Hagee. 227
Opinion of the Court.
rights of the parties, and no evidence can be heard to impeach
it. But it is otherwise, where the record does not show
proper service or an appearance. In such cases, defendant
may show he was not within the territorial jurisdiction of the
court, nor in any manner submitted himself to its jurisdic-
tion.
The case of Bust v. Frothingham, Breese, 331, was an action
on a judgment recovered in the State of New York, and it
was there declared, a record from another State is conclusive
evidence of the debt claimed, that it imports absolute verity,
and nothing can be alleged against it.
In Welch v. Sykes, 3 Gilm. 197, the court said: "If the
record shows, affirmatively, that the defendant was personally
served with process, or personally appeared to the action, it
furnishes conclusive evidence of the facts stated, and the
defendant can not controvert them." The record on which
that action was brought did not show service of process or
personal appearance, but did show an appearance by an attor-
ney. The court held, the recitals in the record were conclu-
sive that the attorney did appear, but not that he had the
authority to do so, and permitted defendant to contest the
fact by evidence.
In Bimeler v. Dawson, 4 Scam. 536, it was held, where the
record of a court of general jurisdiction showTs either that
defendant was personally served with process, or personally
appeared to the action, it is conclusive, and defendant is
estopped by it from denying the jurisdiction of the court over
his person, but if the record fails to show, affirmatively, per-
sonal service or actual appearance in person, it was, at most,
prima facie proof of the jurisdiction of the court, and its
authority to render the judgment.
The doctrine of these cases is believed to be in harmony
with the best reasoned cases in other States on this subject.
The case of Hall v. Williams, 6 Pick. 232, is a well consid-
ered case, in which the court say, "the full faith and credit
required to be given in each State to the judicial proceedings
228 Kennedy v. Mereiam et al. [Sept. T.
Syllabus.
of other States will prevent any evidence to contradict the
facts which show a jurisdiction, if such appear on the record."
The following cases fully sustain the views here presented :
Bissell v. Briggs, 9 Mass. 463; Boden v. Fitch, 15 Johns. 121 ;
Westcott v. Brown, 13 111. 83.
Under the pleas in this case, and issue joined thereon, it
may be appellant, strictly speaking, was entitled to have the
evidence tendered, heard by the court. By the facts alleged
in the pleas, it was sought to invalidate the judgment by
showing the court had no jurisdiction, and the correct prac-
tice would have been for plaintiff to have replied, the record
shows personal service on defendant. The issue would have
been determined then simply by an inspection of the record.
This, appellee did not do, but replied generally to appellant's
pleas averring a want of jurisdiction.
But if there was error in this respect, it is apparent appel-
lant was not prejudiced by the decision of the court. The
record of the judgment upon which the action was brought
was duly authenticated under the act of Congress, and it was
properly admitted in evidence. It showed personal service
on appellant, and no evidence could overcome the recital
of facts which go to show jurisdiction in the court over his
person. His only remedy would be against the officer for a
false return, in the State where the wrong was perpetrated.
No error affecting the merits of the case appearing in the
record, the judgment is affirmed.
Judgment affirmed.
Maey Louisa Kennedy
v.
John W. Mereiam et dl.
1. Service — return showing service on one of different name. The sheriff
made a return upon a summons in chancery, against May Louisa Ismon,
that he had served the same upon Mary Louisa Ismon : Held, that, in the
1873.] Kennedy v. Meeeiam et al. 229
Opinion of the Court.
absence of proof to the contrary, this court must hold the names to indi-
cate two distinct persons, and, consequently, that there was no service on
May Louisa Ismon.
2. Chancery — record must show evidence to justify the finding. Where
the court, in its decree, refers to the evidence upon which the facts are
found, and it fails to support the finding, the decree will be reversed.
3. Thus, on a creditors' bill to set aside certain conveyances as in
fraud of creditors, where the decree recited that the cause was heard upon
the bill, answer, replication and exhibits, " and also the proofs taken in
the cause, to-wit," naming the record in a partition suit, certain deeds,
which were described, a recorded town plat, and then proceeded, " and
the court being fully advised, etc., and finding, from the proofs in the
case, that the said deeds of conveyance from," etc., to, etc., were made to
hinder and delay, etc: Held, that, as the decree professed to state the
proofs, and there being no proof shown of the fraud, or that there were
any creditors at the time of the execution of the deeds, the decree could
not be sustained.
4. In chancery causes, it is not to be presumed that any evidence was
given in the cause, in the court below, except what appears in the record;
and as to infants, strict proof is required, and the record must furnish
evidence to sustain a decree against them, whether the guardian answers
or not.
Weit of Eeeoe to the Circuit Court of De Kalb county ;
the Hon. Isaac G. Wilson, Judge, presiding.
This was a creditors' bill, filed January 22, 1861, by Albert
L. Merriam, against George L. Ismon, May Louisa Ismon,
Amos Shepherd and James Meader. The opinion states the
frame and object of the bill, and the proceedings had thereon.
Mr. W. S. Coy, and Mr. O. T. Reeves, for the plaintiff in
error.
Mr. R. L. Divine, for the defendants in error.
Mr. Justice Sheldon delivered the opinion of the Court:
On the 22d day of January, 1861, Albert L. Merriam filed
a bill in chancery, against George L. Ismon, May Louisa
Ismon, Amos Shepherd and James Meader, to have declared
void, as fraudulent, and as having been made to defraud
230 Kennedy v. Merriam et aL [Sept. T.
Opinion of the Court.
creditors, two certain deeds of two separate parcels of land,
from the said George L. Ismon, one to said Shepherd and the
other to said Meader, and to have said lands subjected to the
payment of a certain judgment which had been recovered by
the complainant against George L. Ismon.
The bill alleged that the title to the tract conveyed to
Meader had become vested in May Louisa Ismon, by devise,
and she was made a party as an infant defendant. The sum-
mons was issued against May Louisa Ismon, and returned as
served upon May Louisa Ismon. A guardian ad litem was
appointed by the court for May Louisa Ismon. The guardian
ad litem answered for Mary Louisa Ismon, and the decree
rendered in the case is against Mary Louisa Ismon, setting
aside the deed to Meader, as fraudulent, and made to defraud
creditors, and ordering the sale of the land conveyed by it,
for the satisfaction of the complainant's judgment.
Mary Louisa Ismon having since intermarried with Burt
Kennedy, brings this writ of error to reverse the decree.
Nothing is to be presumed against an infant ; everything
must be proven. We can not say, in the absence of proof,
that May and Mary are one and the same person, or that the
summons was served on Mary under the wrong name of May.
May and Mary are two distinct names, and we must hold
them to signify two different persons, in the absence of proof
to the contrary, and there is none such in the record. Mary
Louisa Ismon, as we must hold, was not served with process,
and the guardian ad litem had no authority to make answer
for her. See McNidty v. Mott, 3 Cal. 235, and Butterfield v.
Johnson, 46 111. Q8.
There is a distinction between the present case and that of
Pond v Ennis, 69 111. 341, in this: there, the question arose
collaterally, and distinct proof was made of the person who
was actually served, and that the real party was served under
the wrong name ; whereas, here, there is no proof in the
record that Mary was the person served, and nothing to show
1873.] Kennedy v. Meeeiam et al 231
Opinion of the Court.
what person was served, besides the return of service upon
the summons.
It is insisted, further, that the record does not contain evi-
dence which is sufficient to sustain the decree. The record
contains no evidence except what appears from the recitals
of the decree. It recites that the cause came on to be heard
upon the bill of complaint, taken as confessed by the defend-
ants, Meader and Shepherd; the answers, replication and
exhibits, and also the proofs taken in the cause, to-wit,
naming the record and proceedings in a certain partition suit
— certain deeds, describing them — a certain recorded town
plat— the judgment described in the bill — and then proceeds,
"and the court being fully advised in the premises, and find-
ing, from the proofs in the case, that the said deeds of con-
veyance from said defendant, George L. Ismon, and wife, to
the said James Meader and Amos Shepherd, were made and
contrived for the purpose and with the intent to hinder, delay
and defraud the complainant, a creditor of said George L.
Ismon, in the collection of his debt and demand against said
Ismon, and that said deeds were made without any considera-
tion whatever. It is, therefore, ordered, adjudged and de-
creed/7 etc.
The exhibits were only copies of the deeds. As we under-
stand the decree, it professes to state the proofs upon which
the finding was had. When the court, in the decree, refers
to the evidence upon which the facts are found, and it fails
to support the finding, this court will review the finding and
reverse the decree. Preston v. Hodgen, 50 111. 56.
In chancery causes, it is not to be presumed that any evi-
dence was given in the cause, in the court below, except what
appears in the record ; and as to infants, strict proof is re-
quired, and the record must furnish evidence to sustain a
decree against them, whether the guardian answers or not.
Beddick v. President, etc., State Bank Ills. 27 111. 146. The
proofs recited do not support the findings of the decree.
232 The People ex ret. v. Glann et at. [Sept. T.
Syllabus.
They do not show the conveyances to have been fraudulent,
nor that there were creditors at the time they were made, the
deed to Meader appearing, from its date, to have been exe-
cuted January 1, 1858, and the judgment rendered October
4, 18q9.
The decree, as to Mary Louisa Ismon, is reversed, and the
cause remanded for further proceedings.
Decree reversed in part.
The People ex rel. Chicago and Iowa Eailroad Co.
V
James F. Glann et al
1. Mandamus— 'practice under act of 1872. Under the Practice act of
1872, the petition, in the case of a mandamus, takes the place of the
alternative writ, becomes the foundation of all subsequent proceedings,
and must, consequently, be governed by the same rules of pleading as are
applicable to declarations in other cases at law.
2. Same — lies only in case of a clear right. A writ of mandamus will
be awarded only in a case where the party applying for it shows a clear
right to have the thing sought by it done, and by the person or body
sought to be coerced.
3. Same— petition. The petition for a mandamus must show on its
face a clear right to the relief demanded, and it must distinctly set forth
all the material facts on which the relator relies, so that the same may
be admitted or traversed.
4. Pleading — as to condition precedent. Where the consideration of
the defendant's contract is executory, or his performance is to depend on
some act to be done or forborne by the plaintiff, or on some other event,
the plaintiff must aver the fulfillment of such condition precedent, or
must show some excuse for the non-performance.
5. Same — allegation of performance. Where a right claimed is depend-
ent upon the performance of conditions precedent, it is not sufficient to
state a performance in all things generally, but the pleader should allege
specially that each condition was performed and the manner of its. per-
formance.
6. Municipal subscription — may be made upon conditions. Although
the law authorizing a municipal subscription to a railway company may
1873.] The People ex rel. v. Glann et al 233
Opinion of the Court.
be silent on the subject, yet the municipality voting may lawfully impose
conditions upon which the subscription is to depend, and the corporate
bonds to be issued, and until such conditions are complied with, the
courts will not compel the , issuing and delivery of the bonds by man-
damus.
Writ of Error to the Circuit Court of De Kalb county ;
the Hon. Theodore D. Murphy, Judge, presiding.
This was a petition for a mandamus, filed by the Chicago
and Iowa Eailroad Company against James F. Glann, super-
visor of Squaw Grove township, and others, to compel the
issue and delivery of the bonds of the township, to the amount
of $25,000, in pursuance of a vote of the people. The opinion
of the court states the necessary facts of the case to a clear
understanding of the opinion delivered.
The court sustained a special demurrer to the petition.
Mr. E. Walker, and Mr. J. H. Cartwright, for the
plaintiff in error.
Mr. E. L. Divine, for the defendants in error.
Mr. Justice Scholfiekd delivered the opinion of the
Court :
By the 10th section of the acts relating to practice in courts
of record, in force July 1st, 1872, in cases of mandamus, the
petition takes the place of the alternative writ, becomes the
foundation of all subsequent proceedings, and must, conse-
quently, be governed by the same rules of pleading as are
applicable to declarations in other cases at law.
It has been repeatedly said by this court, that the writ of
mandamus is only to be awarded in a case where the party
applying for it shall show a clear right to have the thing
sought by it done, and by the person or body sought to be
coerced. People, eta. v. Forquer, Breese, 104 ; People v. Hatch,
33 111. 9 ; People v. Mayor, etc., 51 id. 28.
234 The People ex rel. v. Glann et al. [Sept. T.
Opinion of the Court.
The petition must show on its face a clear right to the
relief demanded by the relator. He must distinctly set forth
all the material facts on which he relies, so that the same
may be admitted or traversed. Canal Trustees v. The People,
12 111. 254.
It is a familiar principle of pleading, that when the con-
sideration of the defendant's contract is executory, or his
performance is to depend on some act to be done or forborne
by the plaintiff, or on some other event, the plaintiff must
aver the fulfillment of such condition precedent, or must show
some excuse for the non-performance. 1 Chitty's Plead. 352.
The petition for the election, and notice thereof, in the
case before us, show that the bonds to be issued in payment
of the contemplated subscription, were upon the following
express conditions : that said bonds are "not to be dated,
issued or delivered until said company shall have located
their said line of railroad to run within one-half mile of the
center of said town, and shall have constructed their said
road from the city of Aurora, in Kane county, into and
through said town, and laid the track for the same with a
' T' rail, weighing not less than fifty (50) pounds to the yard,
the same to be done on or before December 31, 1870; and
shall locate a depot in said town, one and three-quarter miles
(If) from the center thereof; and when these conditions are
complied with by the company, it shall be the duty of the
supervisor and town clerk of said town to immediately issue,
and deliver to the president of said railroad company, bonds
of said town, ill such form and denominations as may be
agreed upon by the parties, to the full amount of $25,000, in
pursuance of the provisions of said act, and another act now
in force, entitled 'An act to fund and provide for paying the
railroad debts of counties, townships, cities and towns.' "
That the town had authority to impose these conditions,
notwithstanding the law authorizing the subscription is silent
upon the subject, was held in People v. Dutcher, 56 111. 145,
and is not now attempted to be questioned.
1873.] The People ex rel. v. Glann et al. 235
Opinion of the Court.
There is no averment in the petition that the relator has
located a depot in the town of Squaw Grove, one and three-
quarters miles from the center thereof, or at any other point.
The words, " in all things fully complying with the condi-
tions of the vote and notice of election," succeeding the state-
ment of locating and constructing the road through the town,
merely state the conclusion of the pleader, and do not properly
show a performance of the conditions. The rule is, in gen-
eral, whatever is alleged in pleading, must be alleged with
certainty. It should, therefore, have been specially alleged
that each condition was performed, and the manner of its
performance. Stephens on Pleading, (9 Am. Ed.) 333.
There is, moreover, a stipulation in the record, by which
this admission is made : " That at the time of the alleged
tender of stock by said railroad company, no depot had been
located in said town, so far as the people of said town were
informed and advised; and that D. B. Waterman, a director
of said company, made said alleged tender and demand, and
at the same time said to said supervisor and town clerk, that
he was not at liberty to state where said depot was located."
This was a material condition in the liability to be assumed
by the town; and it was, doubtless, the assurance of its per-
formance which chiefly induced the electors to vote in favor
of the subscription, as the building of the road through the
town could be of but slight, if any, benefit to its citizens,
unless a depot should be so located as to accommodate their
interests. The condition was to be performed by the relator,
and it was incumbent on it to show its performance, and not
on the defendant to show that it had not been performed.
We see no error in the ruling of the court below in sus-
taining the demurrer, and its judgment is therefore affirmed.
Judgment affirmed.
236 Teeey et al. v. Eureka College. [Sept. T.
Statement of the case.
Nancy Terry et al.
V.
The Trustees of Eureka College.
1. Foreclosure — when whole debt becomes due for non-payment of inter-
est. If a mortgage or deed of trust provides that the whole debt shall
become due and payable on default in the payment of the interest on the
notes secured, the same may be foreclosed as to the whole debt upon
default in pajdng interest.
2. Conveyance — of married woman may be proved. Since the act of
1869, the deed of a married woman is valid and binding upon her, though
not acknowledged as required by the act of 1845, and if the certificate
of acknowledgment is defective, it may be proved, as in the case of a
feme sole.
3. Same — execution by married woman may be admitted. Where a bill
to foreclose a deed of trust, executed by a husband and wife since the act
of 1869, charges that the defendants made, executed and delivered the
same, the default of the defendants is an admission of that fact, and will
dispense with the necessity of proving the execution of the deed as to the
wife.
4. Amendment — return of service. If a sheriff's return of service is
defective in not stating the precise mode of service of a summons, it
may be corrected even after error brought.
5. Chancery practice — leave to answer after default. It is not error
to refuse to allow a defendant to answer a bill in chancery after default,
who, in his application, fails to show he has any defense.
Writ of Error to the Circuit Court of Woodford county;
the Hon. Samuel L. Kichmond, Judge, presiding.
This was a bill in chancery, by the trustees of Eureka
College, against Nancy Terry and N. B. Terry, her husband,
to foreclose a deed of trust. The opinion states the neces-
sary facts.
Messrs. Clark & Kettelle, for the plaintiffs in error.
Messrs. Bangs & Shaw, and Messrs. Briggs & Meek, for
the defendants in error.
1873.] Terry et al v. Eureka College. 237
Opinion of the Court.
Mr. Chief Justice Breese delivered the . opinion of the
Court :
This was a bill in chancery, in the Woodford circuit court,
to foreclose a trust deed, as it is called. The sheriff returned
the summons duly served upon the defendants, and the bill
taken for confessed against them, and the matters thereof
decreed to complainants.
A sale of the premises was made by the master on the
terms of the decree. On the coming in of his report, various
objections were made to it by the defendants, which were
disallowed by the court, and his report approved, and con-
firmed, to all which defendants excepted, and bring the
record here by writ of error. They make the point that the
bill of complaint was prematurely filed, the notes not being
due.
There is no ground for this objection. By the terms of
the deed, the whole amount became due and payable on
default in the payment of the interest on the notes. Another
point is, that the deed was not admissible in evidence, for
the reason it was not acknowledged by the grantors, one of
whom, and the owner of the property, being a married
woman.
There is no force in this objection. The bill alleges the
defendants made, executed, and acknowledged and delivered
the deed to complainants, and the default of defendants
admits the fact, and concludes them. Williams et al v. Soutter,
55 111. 130.
Since the act of 1869, the deed of a married woman is valid
and binding upon her, though not acknowledged as required
by the act of 1845. The deed in question was executed on
the 19th of August, 1870. Under the act of 1869, the execu-
tion of the deed by the wife could be proved as in the case
of a feme sole. Sess. Laws 1869, p. 359. As, by the default,
she admitted the execution of the deed, as charged in the bill
of complaint, proof of its execution was unnecessary. The
238 Chicago & Pac. B, E. Co. v. Francis. [Sept. T.
Opinion of the Court.
sheriff's return, if defective, or not according to the precise
fact, as to the mode of service, could be corrected, even after
writ of error brought. Hawes v. Hawes, 33 111. 287; Toledo,
Peoria and Warsaw Railway Company v. Butler, 53 111. 323.
There was no error in refusing *he wife leave to answer,
as she does not, in her application, intimate she has any
defense.
We fail to see one particle of merit in any of the positions
assumed by plaintiffs in error.
The decree is affirmed.
Decree affirmed.
The Chicago and Pacific Railroad Company
V.
Henry Francis.
Eminent domain — damages to property not taken. The clause of the
constitution which provides that "private property shall not be taken or
damaged, for public use, without just compensation," must receive a rea-
sonable and practicable interpretation. Where the property is not taken,
the damages must be real, and not speculative. If the property is not
worth less in consequence of the construction of a railroad in its vicinity,
or upon a street upon which the lots abut, than if no road were con-
structed, the owner will not be entitled to damages, and can not enjoin
the construction of the road in the street in pursuance of the company's
charter and the license of the city authorities.
Appeal from the Superior Court of Cook county ; the Hon.
Joseph E. Gary, Judge,. presiding.
Messrs. Dent & Black, for the appellant.
Messrs. Barber & Gardner, for the appellee.
Mr. Justice Walker delivered the opinion of the Court :
Appellee filed a bill in chancery, in the Superior Court of
Cook county, to enjoin the company from laying its railroad
1873.] Chicago & Pac. E. R. Co. v. Francis. 239
Opinion of the Court.
track on Bloomingdale avenue, in the city of Chicago, until
he should be paid damages he claims he would sustain by its
construction. The common council of the city granted the
company the right of way in this street, and in pursuance
thereof, and under the power contained in its charter, the
company were preparing to construct its road.
Appellee had previously purchased thirty city lots, nineteen
of which fronted on this avenue. When he purchased the lots,
he supposed the railroad would be located and constructed on
Armintage avenue. Evidence was heard on both sides, from
which it appears these lots are worth less by reason of con-
structing the road on this avenue, than if it had been on
Armintage avenue, but are not less in value than if no road
had been built in that part of the city.
As should be expected, witnesses differ as to the value of
this property, and as to whether it is injured by the road;
but we are clearly of opinion that the decided weight of the
evidence is, that the property is worth fully as much, if not
more, than if the road had not been built. This, then, being
true, does the provision of the present constitution require
that damages shall be assessed? Section 13 of the Bill of
Rights provides that " private property shall not be taken or
damaged, for public use, without just compensation." What
is the meaning of the word "damaged," as used in this con-
nection? We must presume that it was used in its ordinary
and popular sense, which is: hurt, injury, or loss. Now, we
can not suppose that the framers of that instrument intended
it in any other sense than loss or depreciation in the price of
the property damaged; that the damage or injury should be
real, and not imaginary or speculative. It can not be said
appellee has sustained damage, when his property is worth
and will sell for as much or more than if no road had been
built. It is no damage to him if the construction of the
railroad has not increased the value of his lots, whilst it has
added thirty, forty or fifty per cent to the value of other prop-
erty in the vicinity, but differently situated. He has no
240 Chicago & Pac. E. K. Co. v. Feancis. [Sept. T.
Opinion of the Court.
ownership in, or right to, such appreciation in the value of
property.
This provision must receive a reasonable and practicable
interpretation; but if that contended for by appellee were
given, it would become ruinous to such companies, as they
would be compelled to pay in damages enough to each prop-
erty holder whose property was not benefited to as great an
extent as that which is most favorably situated, and has been
most advanced in value, so as to make them equal. If they
are required to make the advance on these lots, equal to lots
on the next street north and south, then they would be com-
pelled to make the advance on property, so remote as to be
barely benefited, equal to the most favored and most highly
benefited, and so of all property enhanced in value, without
reference to the degree of appreciation.
Suppose, when the depot is built and established, property
in its vicinity should be advanced thereby several hundred
per cent, would appellee insist he was damaged to the same
per cent on his property? We presume he would not; and
yet we fail to perceive the difference in principle, and we
think there can be none. We must, therefore, hold that the
damage contemplated by the constitution must be an actual
diminution of present value, or of price, caused by construct-
ing the road, or a physical injury to the property, that ren-
ders it less valuable in the market, if offered for sale. It
must be real, and not speculative damages.
The court below, therefore, erred in rendering this decree,
and it must be reversed, and the bill dismissed.
Decree reversed.
Mr. Chief Justice Breese: I concur in reversing the
decree of the court below, for the reason that, as I read
the constitution, it contemplates, when the property is not
taken, that the damages must be real. The evidence does not
show an actual, real, present damage to the property.
1873.] Brink v. Steadman et al 241
Opinion of the Court.
Hezekiah Brink
V.
Amos C. Steadman et al.
1. Specific performance. A party can not have a specific perform-
ance of a contract, in equity, unless he can show he has performed it in
all its parts, or can show a just excuse for non-performance; and the bur-
den of proof is on the complainant to show his right to the relief he
seeks, by a clear preponderance of evidence.
2. Same — refused for laches. Where a party, seeking a specific per-
formance of a contract, delays filing his bill for eight years, and the delay
is unexplained by any equitable circumstances, he can have no relief.
3. Forfeiture — in contract of purchase. If parties under no disabili-
ties choose to contract for a forfeiture in the sale and purchase of land,
in the absence of any fraud or improper practices on the part of the
vendor, a court of equity can afford the vendee no relief against the same.
Appeal from the Circuit Court of Rock Island county; the
Hon. "William W. Heaton, Judge, presiding.
Messrs. Dinsmoor & Stager, for the appellant.
Messrs. Henry & Johnson, for the appellees.
Mr. Justice Scott delivered the opinion of the Court :
This bill was to enforce a specific performance of a contract
to convey certain premises. The original contract between
the parties was in writing. On the 9th day of March, 1859,
appellant purchased of appellees, Steadman and Mallory, a
certain lot, for $400, to be paid for in one, two and three
years, with interest at the rate of ten per cent per annum
from date, according to the tenor and effect of three promis-
sory notes of the same date. Time was made, by the express
terms of the agreement, material, and of the essence of the
contract, and, in case of failure, the intervention of equity
was to be forever barred.
Soon after making the contract, appellant entered into
16— 70th III.
242 Brink v. Steadman et ah [Sept. T.
Opinion of the Court.
possession, and erected a building on the premises, of the
value of between $600 and $1000.
But a trifling portion of the consideration agreed upon was
ever paid; nor is it claimed there has ever been any perform-
ance of the contract by appellant, or any one for him. It is
sought to show an excuse for non-performance, by an alleged
new contract, said to have been entered into in 1861, by which
the vendors agreed to take possession, and hold the premises
until the rents and profits would liquidate their claim for the
purchase money. Appellees expressly deny the making of
the new contract as alleged, and charge that appellant, and
one Kirk, since deceased, to whom it is said appellant assigned
the contract, surrendered up the premises, and agreed to can-
cel the agreement, for the reason a part of the purchase money
had then become due, and Kirk was unwilling, he being about
to enter the military service of the United States, to advance
the amount due, and appellant being unable to make any fur-
ther payments.
Upon the propositions asserted by the respective parties,
the testimony offered by them is as variant and conflicting as
are their interests in the subject matter of this litigation. It
is needless to undertake to harmonize the evidence. It can
not be done. There are some things in the testimony of both
parties that seem singularly improbable, and we are unable
to reconcile them consistently with the undisputed facts.
In this unsatisfactory condition of the evidence, we are at
a loss to see how appellant can have a specific performance
of the contract. The doctrine is settled, by a uniform course
of decisions, that a party can not compel a specific perform-
ance of a contract, in a court of equity, unless he can show
that he has performed it in all its parts, or can show a reason-
able and just excuse for non-performance. Scott v. Shepherd,
3 Gilman, 483; Board of Supervisors v. Henneberry, 41 111.
179; Iglehart v. Gibson, 56 111. 81.
The burden of proof is on appellant to show, by satisfac-
tory evidence, that he is entitled to the relief demanded in
1873.] Beink v: Steadman et al. 243
Opinion of the Court.
his bill. This he has not done. It is undisputed that he has
not performed his contract, and the ground upon which he
places the excuse for non-performance, viz: the alleged new
contract, is not supported by that clear preponderance of evi-
dence that ought to be shown before he can invoke the aid of
a court of equity. Time was made of the essence of the con-
tract, and, in case of failure, it was agreed the intervention
of equity should be barred. If parties under no disability
choose to contract for a forfeiture, as in this case, however
hard it may seem, in the absence of any fraud or improper
practices on the part of the vendor, the law can afford the
vendee no relief.
There is another conclusive reason why appellant is not
entitled to relief. He has not been diligent in asserting his
equities, whatever they may have been. This bill was not
filed until 1869, and this delay of eight years is unexplained
by any equitable circumstances. It is a familiar principle,
that equity will only assist such as are diligent in asserting
their rights. ~No excuse having been shown for the unreason-
able delay that has intervened, the bill could not be enter-
tained.
There is evidence tending to show appellant voluntarily
surrendered the property, and abandoned the contract. The
evidence, however, is very conflicting, and it is not deemed
necessary to express a conclusive opinion on this point. It
is enough if it appears appellant has not performed the con-
tract, nor shown, by satisfactory evidence, a just excuse for
non-performance, to bar any relief.
No such evidence appearing in the record, the bill was
properly dismissed, and the decree is affirmed.
Decree affirmed.
244 Linnemeyer v. Miller et al. [Sept. T
Opinion of the Court.
Henet Linnemeyer
v.
John Miller et al.
1. Chancery practice — dismissal for want of prosecution. Where an*
answer for part of the defendants, in a suit to enforce a mechanic's lien, is
filed without notice to the petitioner, the court will not be authorized to
dismiss the suit for want of prosecution, when reached on the docket, for
want of a replication, and it is error to do so.
2. If the defendants are desirous of a speedy hearing, they should
notify the complainant or petitioner of the filing of their answer, and if
replication is not then filed in four days, move the court to set the cause
for hearing on bill and answer.
3. Rules op court — must not conflict with statute. To be obligatory,
rules of court must be in conformity with, and not repugnant to, the gen-
eral laws relating to practice.
Appeal from the Superior Court of Cook county; the
Hon. William A. Porter, Judge, presiding.
This was a petition filed by Henry Linnemeyer against
John Miller, Charles "W. Rigdon and George F. Whitney, to
enforce a mechanic's lien, as a sub-contractor. The opinion
presents the facts necessary to an understanding of the ques-
tions decided.
Mr. Joseph Schlernitzauer, for the appellant.
Messrs. Bennett & Sherburne, for the appellees.
Mr. Justice Scholfield delivered the opinion of the
Court :
The only question presented upon this record is, did the
court below err in dismissing the suit for want of prosecu-
tion?
It appears, from the record, that Miller and Rigdon filed
their answer to the petition on the 10th day of October, 1872,
and that, on the 10th day of January, 1873, the cause was
1873.] Linnemeyer v. Miller et al. 245
Opinion of the Court.
reached on the call of the common law docket, and, not being
at issue, was dismissed for want of prosecution. No answer
was filed by Whitney, and the record fails to show that appel-
lant had notice of the filing of the answer by Miller and
Rigdon.
Although suits to enforce mechanic's lien are, by the stat-
ute which authorizes them to be prosecuted, required to be
placed upon the common law docket, and to stand for trial at
the term to which the summons is returnable, yet, answer,
exceptions and replication are to be filed, and the issues made
up, as though the proceeding was in chancery. The 23d sec-
tion of the act relating to liens (1 Gross, 425,) provides that,
"in proceedings under the provisions of that act, the courts
are vested with all the powers of courts of chancery, and
shall be governed by the rules of proceeding and decisions in
these courts, so far as that power may be necessary to carry
into full and complete effect the provisions of the act, and so
far as those rules of proceeding and decision are applicable to
cases and questions presented for adjudication and decision."
It is true, it is provided by the 8th section of the act, that
every defendant served with process ten days before the return
day thereof, shall answer the bill or petition on or before the
day on which the cause shall be set for trial on the docket,
and the issue or issues in the cause shall be made up under
the direction of the court, and oral testimony shall be received
as in cases at law. But this does not authorize the court to
cause the issues to be made up, or to dispose of the cause in
any different manner than that provided by the act relating
to practice in chancery, much less to arbitrarily dismiss a suit
for want of prosecution, before the issues are made up.
It is provided, by the 28th section of the act regulating the
practice in courts of chancery, in force July 1, 1872, (2 Gross,
34,) that replications shall be general, with the like advantage
to all parties as if special, and shall be filed in four days after
the plaintiff or his attorney shall be served with notice of
answer filed.
246 Disbrow v. Chicago & N. W. K. R. Co. [Sept. T.
Syllabus.
It is also provided, by the 29th section of the same act,
that, "after replication is filed, the cause shall be deemed at
issue, and stand for hearing, or, in default of filing such rep-
lication, the cause may be set for hearing upon the bill and
answer, in which case the answer shall be taken as true, and
no evidence shall be received, unless it be matter of record,
to which the answer refers."
It is obvious, from these sections, that the court below was
not authorized to dismiss the suit for want of prosecution.
If the defendants were desirous of its speedy termination, it
was their duty to have notified the petitioner of the filing of
their answer, after which, if replication had not been filed
within four days, the cause should have been set down for
hearing; on bill and answer.
We have not deemed it necessary to look into the rules of
practice adopted by the court below, and quoted in the brief
of appellees, for they can not have the effect of repealing the
positive provisions of the statute which we have quoted. To
be obligatory, such rules must be in conformity with, and not
repugnant to, the general law.
The decree of the court below, dismissing the suit for want
of prosecution, and adjudging costs against the appellant, is
reversed, and the cause remanded for further proceedings.
Decree reversed.
Nathan Disbkow
The Chicago and JSTokthwestekn Kail way Co.
1. Railroad — liability for obstructing passage over its track to a party's
eating house. Where a railroad company had several tracks between the
depot, where passengers got off its trains, and an eating house of a party,
and trains were made up at that station, so that it was dangerous for per-
sons to cross over to the eating house, the company will not be liable to
the proprietor of the house for leaving freight and other cars on its side-
1873.] Disbrow v. Chicago & K W. R. R. Co. 247
Opinion of the Court.
track, so as to make it difficult for passengers to cross over to his house.
The company, in such a case, is not obliged to keep open an unobstructed
way for the passage of persons to and fro across its track, for the accom-
modation of the private business of an individual, and the obstruction
was a lawful means to adopt for the safety of passengers, and to protect
itself from liability for injury to others in crossing.
2. Pleading and evidence— £>re>tf/ must have its foundation in the
pleadings. Where the cause of action stated in a declaration was, the
obstructing the defendant's own track with cars, so as to prevent passen-
gers from crossing over to the plaintiff's eating house, and there was no
averment of the obstruction of a crossing or public way over the track, it
was held, that such evidence was inadmissible, and could not be consid-
ered.
Appeal from the Circuit Court of McHenry county; the
Hon. Theodore D. Murphy, Judge, presiding.
Mr. T. Lyle Dickey, and Mr. Frank Crosby, for the
appellant.
Mr. B. C. Cook, for the appellee.
Mr. Justice Sheldon delivered the opinion of the Court:
This was an action on the case, brought by Disbrow against
The Chicago and Northwestern Railway Company, to recover
for damages caused by the standing of freight cars on the
company's railway track, in front of an eating house of the
plaintiff, at the times when the passenger trains on defendant's
road stopped at Harvard for meals.
The complaint in the declaration is, that the defendant,
intending to injure the plaintiff, and to prevent the use and
enjoyment of his building as a railway eating house at the
times when the passenger trains stopped for meals, wrongfully
caused freight and other cars to be stationed on the tracks of
the railroad, in front of plaintiff's eating house, and thereby
obstructed the access of railway passengers thereto.
The evidence shows that Harvard is a station on defend-
ant's road where a large number of cars stop; that trains are
made up there ; that the repairing shops of the company are
248 Disbrow v. Chicago & N. W. E. R. Co. [Sept. T.
Opinion of the Court.
at that place; that there are there six tracks of its railroad.
Defendant had an eating house in close connection with its
depot, the eating house being situated on the side of the six
tracks on which passengers were received, and on which they
landed from the cars. On the other side of these six tracks,
was the plaintiff's eating house. It was in evidence, that
plaintiff had been an annoyance in his soliciting, on the cars,
of passengers as customers for his eating house; that, in doing
so, he had exposed himself to danger of injury about the cars,
and he had been forbidden from the cars for the purpose of
soliciting passengers ; that constant switching was going on
while trains stopped for meals, and that it was dangerous for
passengers to cross the tracks to plaintiff's eating house.
There were a verdict and judgment in favor of the defendant,
in the court below, and the plaintiff appealed.
We can not see here any cause of action. Whether the
stationing of the cars, as alleged, was in the necessary trans-
action of the company's business, or for the purpose of pre-
venting access to the premises of plaintiff, across the tracks
of defendant's road, we conceive makes no difference. The
latter was a means it might properly adopt, for the safety and
protection of its passengers, and to guard against its own
exposure to liability for damages which might be sustained in
crossing over its tracks. What was done, was in the lawful
use of the defendant's own property, what it had the right to
do, in virtue of its ownership of the estate. It was not
obliged to keep open an unobstructed way for the passage of
persons to and fro, across its tracks, for the accommodation
of the private business of an individual. The plaintiff could
assert no right of a passage way over the tracks of defend-
ant's road. No right of his was interfered with.
There is some evidence tending to show that the sidewalk
and a public street crossing over the track were obstructed.
But no such cause of action is set forth in the declaration.
There is no averment in it of the obstruction of any way
over which the plaintiff had a right of passage.
1873.] K. & M. R. R. Co. v. Farmers' L. & T. Co. 249
Statement of the case.
The view taken, renders it unnecessary to consider the sev-
eral further errors which have been assigned.
We consider that there is no cause of action proven, or laid
in the declaration.
The judgment is affirmed.
Judgment affirmed.
The Racine and Mississippi Railroad Company
v.
The Farmers' Loan and Trust Company et al.
1. Appeal— lies only from final order or judgment. This court has
repeatedly decided that an appeal or writ of error will not lie from a
decision of the circuit court, unless it is the final judgment in the cause.
2. An order in a chancery cause overruling a motion to set aside a
sale made under a former decree in the cause, is interlocutory only, from
which an appeal or writ of error will not lie.
Appeal from the Circuit Court of Stephenson county; the
Hon. William Brown, Judge, presiding.
This was a bill filed by the Farmers' Loan and Trust Com-
pany, against the Racine and Mississippi Railroad Company
and others, to foreclose a mortgage of $700,000. There was
a cross-bill filed, and the court decreed the sale of the mort-
gaged property. Afterwards, the Racine and Mississippi
Railroad Company filed its cross-bill and petition against the
original complainant and George A. Thompson and the
Northern Illinois Railroad Company, to have the sale of the
property set aside. The court below refused the application
to set aside the sale, and the defendant appealed.
Mr. Lyman E. DeWolf, and Mr. J. H. Knowlton, for
the appellant.
Messrs. Burchard & Barton, for the appellees.
250 E. & M. E. E. Co. v. Farmers' L. & T. Co. [Sept. T.
Opinion of the Court.
Mr. Justice Craig delivered the opinion of the Court :
This is an appeal from an order made by the circuit court
of Stephenson county, at the April term of the court, 1873,
which order is as follows :
" The Farmers' Loan and Trust Company v. The JRacine and
Mississippi Railroad Company et al. Original Bill."
"The Raeine and Mississippi Railroad Company v. The Farm-
er's Loan and Trust Company et al. Cross-bill."
"And now, at this day, comes on to be heard the motion of
the Eacine and Mississippi Eailroad Company to set aside
the sale made under a former decree in this cause, and filed
herein September 6, 1871, and the court having heard the
evidence taken on said motion, and the argument of respect-
ive counsel, overrules the motion. To which ruling of the
court said Eacine and Mississippi Eailroad Company, by its
solicitors, excepts, and prays an appeal to the Supreme Court,
from the order overruling said motion, which appeal is
allowed," etc.
This judgment is interlocutory only, from which an appeal
or writ of error will not lie. There must be a final decision
of the case, before either party can bring it to this court for
review. The record does not show the case finally disposed
of in the circuit court. For aught that appears the cause is
still pending in the circuit court of Stephenson county.
This court has repeatedly decided that an appeal or writ
of error will not lie from a decision of the circuit court, Unless
it is the final judgment in the cause. Woodside v. Woodside}
21 111. 207; Gage v. Fich, 56 111. 297.
For the reason indicated the appeal will be dismissed.
Appeal dismissed.
1873.] Dearlove et al. v. Herrington. 251
Opinion of the Court.
George Dearlove et al.
V.
John Herrlngton.
1. Tbespass quaiie clausum fiiegit. The owner of lands and tene-
ments, even if he be wrongfully kept out of possession, has no right to
enter, against the will of the occupant, except to demand rent and make
necessary repairs.
2. Same — damages, whether excessive. Where the agents of a landlord,*
acting for him, made an entry into the dwelling house of a tenant, before
his lease expired, and put others in, and exercised dominion over the
goods and chattels of the tenant, and removed them from one room to
another, and deprived him of the beneficial use of the dwelling house,
and treated him with indignity, and his rights with contempt, a verdict
for one thousand dollars damages is not excessive, and does not afford any
evidence that the jury did not take a cool and deliberate view of the case.
Appeal from the Circuit Court of Cook county ; the Hon.
Lambert Tree, Judge, presiding.
Mr. B. W. Ellis, and Mr. Eobert Hervey, for the appel-
lants.
Messrs. Tilden & Osgood, and Mr. John "W. Hawley,
for the appellee.
Mr. Chief Justice Breese delivered the opinion of the
Court :
This was an action of trespass quare clausum f regit and de
bonis asportatis, in the Cook circuit court, brought by John
Herrington against George Dearlove, Richard Dearlove, Mary
Dearlove and Hannah Dearlove.
The cause went to the jury on the issue of not guilty, and
on several special pleas, one of which averred that Mary and
Hannah Dearlove were the owners of the locus in quo, and,
because the goods and chattels mentioned in. the declaration
were wrongfully in the dwelling house thereon, they, as own-
ers, and the other defendants, as their servants, entered the
252 Deaelove et al. v. Heeeington. [Sept. T.
Opinion of the Court.
house and removed the goods from one room to another
therein, as they lawfully might, doing no unnecessary damage.
The replication to this plea admits the ownership of the
premises, as alleged, but avers that, on the 1st of October,
1864, they did, by their agents, George and Richard Dearlove,
demise the premises to the plaintiff, to hold for one year from
the first day of April, 1865, and so on, from year to year, a
like demise was made on the first day of October, to hold for
^one year from the first day of April succeeding; that about
the first day of October, 1868, Hannah and Mary demised the
dwelling house to plaintiff for one year from April 1st, 1869,
until April 1st, 1870, by virtue of which demise plaintiff
held possession.
The controversy turned upon the nature of this demise,
when it commenced and when it terminated, in which, after
hearing the testimony of George and Richard Dearlove, and
of Hannah Dearlove, and of the plaintiff in the action, the
jury found the issues for the plaintiff, against George and
Richard Dearlove, the others having been dismissed out of
the case, and assessed his damages at one thousand dollars, for
which the court rendered judgment, having refused a new
trial.
To reverse this judgment, the defendants appeal.
Appellants admit, in their argument, there was a technical
trespass, but complain the damages are excessive to such a
degree as to manifest passion and prejudice.
We have looked into the testimony, as it appears in the
record, carefully, and it discloses a case where an entry was
made upon a tenant, by appellants, acting for the landlord,
before his term had expired, other tenants put in, and domin-
ion exercised by appellants over the goods and chattels of
appellee, removing them from one room to other rooms, and
depriving appellee of the beneficial enjoyment of the dwell-
ing house, so necessary to the comfort of himself and family,
and treating him with the greatest indignity, and his rights
with contempt.
1873.] Dearlove et al. v. Herring ton. 253
Opinion of the Court.
The plaintiff's situation in life is a very humble one, and
he has nearly completed his "three score years and ten," but,
humble as he is, he has a right to claim the same protection
from injury, as the highest and most honored individual in
community. The tenant of a marble front, in our great
city, has no better right than plaintiff, to enjoy his possession
free from unlawful intrusion and molestation by the owner.
This humble home was the plaintiff's castle. "Dear is the
hut to which his soul conforms." There, were his penates,
there was his family, and in it his rights were supreme. It
can not be said that one thousand dollars damages would be
excessive, if the plaintiff was the tenant of a magnificent
mansion, and so molested as the evidence discloses in this
case. Shall the fact that the plaintiff is old and poor, and
comparatively an insignificant figure in the great swarm of
human society, subject him to a diminished measure of jus-
tice?
When the lawlessness of the act is considered, and the cir-
cumstances, we can not think the damages are excessive, or
afford any evidence that the jury did not take a cool and
deliberate view of the case. If it was true, that plaintiff
was holding over, in defiance of his lessors, they would have
no right to take the law in their own hands, and thus redress
their wrongs.
It was held, in Reeder et al. v. Purdy and Wife, 41 111. 279,
if the owner in fee be wrongfully kept out of possession, he
is not permitted to enter, against the will of the occupant,
except for the purpose of demanding rent, or to make neces-
sary repairs. The common law right, to enter and to use all
necessary force to obtain possession from him who may un-
lawfully withhold it, it was held, was taken away by our
Statute of Forcible Entry and Detainer. That statute, in its
spirit, forbids a forcible entry, by the owner, upon the actual
possession of another.
We think the weight of the evidence in this case is, that
254 Burt v. French. [Sept. T.
Opinion of the Court.
plaintiff's lease terminated on the first day of April, 1870, up
to which time the rent was paid.
We find no fault with the instructions, as given by the court.
They declared the law, as we understand it.
Finding no error in the record, we affirm the judgment.
Judgment affirmed.
Randolph Bttkt
V.
Sanford B. French.
1. Landlord and tenant— forfeiture for non-payment of rent. At com-
mon law, in order to justify the landlord in declaring, a forfeiture of the
lease, for the non-payment of rent, a demand of the rent was necessary on
the day it became due; but the statute of this State has changed the rule,
and a demand may be made any time thereafter.
2. Admissions — by act of a party. Where a party, in rendering an
account, charges himself with rent of property for each of a series of
months as of the first of each month, this will be an admission, on his
part, that he was to pay rent monthly, in advance.
Appeal from the Superior Court of Cook county; the
Hon. William A. Porter, Judge, presiding.
Mr. Thomas Shirley, for the appellant.
Mr. Davld Fales, for the appellee.
Mr. Justice Walker delivered the opinion of the Court:
Appellee purchased a house and lot, in the city of Chicago,
of one James M. Smith, of Iowa, in March, 1872. The
house, at the time of the sale, was occupied by appellant and
his family. He claims that he was in possession, under a
lease from Smith, at $40 per month, the rent payable at the
end of each month. The rent was paid up to the 1st of April,
1872, but not paid for that month, and, on the 15th, appellee
1873.] Burt v. French. 255
Opinion of the Court.
demanded the rent, but it was not paid then or during the
next ten days, and he thereupon declared the lease forfeited
and at an end. He thereupon brought an action of forcible
detainer before a justice of the peace, where a trial was had,
resulting in a verdict and judgment in favor of the defend-
ant. An appeal was prosecuted to the Superior Court of
Cook county. On a trial in that court, the jury found a ver-
dict in favor of plaintiff, and defendant has appealed to this
court.
It is urged that, even if the rent was payable for each
month in advance, the forfeiture was irregular, as the rent
was not demanded on the first day of the month, when it
became due. Such was the common law rule, but, as we have
held, our statute has changed the common law, and authorizes
the demand to be made after the day. Chadwiek v. Parker,
44 111. 326. We are not inclined to further discuss the con-
struction of the statute, as we are satisfied with that given in
the case to which we have referred.
It is insisted that the evidence fails to show that there was
an agreement to pay the rent in advance. Smith swears that
it was to be paid in advance; and appellant went into the
house on the 1st of May, 1871, and was at that time, and for
nearly a year, Smith's agent to collect rents of other persons,
and, in rendering his account to Smith for money so received,
he charges himself with §40 on the 1st day of May, the rent
for that month; also, in the same manner for the month of
June, and for August as due on the 3d, but, again, in Sep-
tember, as due for that month on the 1st day, and, again, as
due on the 3d for the month of October. It is true that he
and his daughter testified that the agreement was, that he
should pay at the last of the month, or even when it should
be convenient.
In this conflict, it was for the jury to determine to which
the credit should be given. We think they were warranted
in finding that the rent was payable on the 1st day of each
month, and in advance. We regard the admission by appel-
256 Buet v. French. [Sept. T.
ODinion of the Court.
lant, so repeatedly made, in rendering his accounts, as being
the strongest character of corroborative evidence of the truth
of Smith's statement. Appellant, when rendering his accounts,
had no motive to deny the contract as made. He could in
nowise promote his interest by giving a false construction to
the agreement. It is true, that he says the mark indicating
the same, as above, opposite his name, means nothing, but
when opposite the names of others, it indicated that they
were to pay their rent in advance. Such a version can not be
considered reasonable. All know that it is the uniform cus-
tom, in rendering an account of the items of money or goods,
as well as the names of individuals of whom money is re-
ceived, to state the date, and that all items or names inserted,
until a different date is given in the margin, are understood,
and so intended, to be regarded as of that date, and this, too,
whether dots or the word ditto be placed under the date, and
opposite to the item or name. All, even very indifferent, busi-
ness men so understand the account.
Appellant, we think, should not be surprised if the jury
believed his version of the contract, made without interest,
rather than his sworn statement, when strongly impelled, by
interest, to give a false version of it; or that they should
give credence to Smith's testimony, corroborated by appel-
lant's admissions thus made, rather than the evidence of him-
self, daughter and the other witnesses, who were liable to
misunderstand, as are all persons who casually hear a conver-
sation, in which they have no interest, in contradiction of
Smith's version of the matter. The jury were, we think,
warranted in finding that the contract required him to pay
rent in advance for each month, and we are unable to say it
is against the evidence.
It is next urged that Smith had given appellant a power
of attorney, authorizing him to lease or sell this and other
houses, and that Smith, by letter, authorized appellant to
draw up and execute to himself a lease for the premises in
controversy, for the period of three years, the rent to be paid
1873.] Bukt v. French. 257
Opinion of the Court.
at the end of each month; and that, in pursuance of such
license, he drew up and executed such a lease to himself, which
he produced on the trial, claiming to have sent a duplicate to
Smith. In the first place, this is so novel and unbusiness-like
a mode of making such leases, that it casts strong suspicion
on the entire claim. If, knowing, as it is implied, that the
agent could not lease to himself, all would have supposed that
appellant would have prepared and sent the lease to Smith to
be executed, or have relied upon his letter, and have accepted
the proposition by letter.
The whole contrivance is so novel that it is hard to believe
that business men would have so prepared the lease. On the
other hand, rents had advanced, it appears, fifty per cent or
more, and it may be inferred that appellant and Smith had
ceased to occupy friendly relations; hence, we see strong mo-
tives to induce appellant to prepare and rely upon such an
instrument after the difficulty arose. Again, Smith distinctly
denies that he gave appellant a written power of attorney, or
authorized him to execute a lease to himself. He swears that
he only gave him verbal authority to collect rents, and only
a verbal lease for the premises.
The claim seems to be so improbable that the jury were
warranted in disregarding his evidence, from that fact alone;
and the evidence, we think, shows that his daughter repeat-
edly stated, before appellee purchased, that her father held no
written lease, although she denied having so stated, when
she came to testify, and the jury seem to have disbelieved
her testimony, as well as her brother's. He, like her, seems
to have stated that his father had no written lease; and that
warranted the jury in disregarding his evidence. As to the
other witness, she only claims to have seen the power of attor-
ney and letter authorizing appellant to execute the lease to
himself. She does not state that she knew Smith's hand-
writing, or had any means of knowing it. Even conceding
that she saw what purported to be such papers, her evidence
should not affect Smith, or appellee, as his assignee, unless she
17— 70th III.
258 Nichols v. Mitchell. [Sept. T.
Svllabus.
knew that the former had signed the papers. To hold that
they were so bound on such testimony, would violate the rules
of evidence, and render rights insecure.
After an attentive consideration of the entire evidence, we
are unable to say that the finding is against the weight of
the evidence, and the judgment of the court below must be
affirmed.
Judgment affirmed.
Leon"aed J. Nichols
v.
Chakles Mitchell.
1. Partition — mode of service as to minors. If a proceeding for par-
tition is by bill in chancery, it is indispensable to the jurisdiction of the
court, that the summons should be served upon the minor defendants in
interest, service on their guardians being insufficient. But if it is under
the statute, service upon their guardian, by reading, is sufficient to give
the court jurisdiction.
2. Same — whether in chancery, or under the statute. Where a decree of
partition and a sale thereunder are questioned collaterally, the case will be
considered as in chancery, or under the statute, whichever will sustain
the jurisdiction of the court, to give stability to such sales.
3. Judicial sale — irregularities when attacked collaterally. If the court
has jurisdiction to order the sale of land in a proceeding for partition,
even though it proceeds irregularly in some matters, the decree and sale
under it can not be assailed in a collateral proceeding.
4. Guardian's sale — notice of application — change of term. Where a
guardian's notice of an application to sell his ward's land was to the
April term of the court, but the term of court was changed from April to
March, by an act of the legislature, it was held, that the application was
properly made at the March term, the notice standing in the place, and
performing the office, of process.
Appeal from the Circuit Court of Whiteside county ; the
Hon. William W. Heaton, Judge, presiding.
1873.] Nichols v. Mitchell. 259
Opinion of the Court.
This was an action of ejectment, by Leonard J. Nichols
by his next friend, Charles C. Nichols, against Charles
Mitchell, for the recovery of the northeast quarter of section
13, township 21 north, range 5 east, in Whiteside county,
Illinois.
The cause was tried by the court without a jury, who found
for the defendant.
Mr. C. L. Sheldon, for the appellant.
Messrs. Sackett & Bennett, for the appellee.
Mr. Justice Scott delivered the opinion of the Court :
Both parties claim title to the premises in controversy
through a common source, and each claims to own the title
that was in Norton J. Nichols, now deceased.
Appellant was one of the heirs, and has exhibited quit-
claim deeds from the other heirs to himself, so that his title
is perfect, unless it has been divested by the proceedings in
partition, and the sale made by the guardian of Charles C.
Nichols. It is claimed the lands were assigned, among others,
to Charles C. Nichols in the division of his father's estate,
and afterwards this tract was sold by his guardian under a
decree of court. Appellee is the grantee of the purchaser at
that sale, and the title thus acquired is now asserted as par-
amount title.
It is shown by the proof that Norton J. Nichols departed
this life leaving three children, viz: Leonard J.. Charles C,
and Ameret Nichols. The latter died in infancy, subsequent
to her father's death, leaving as her only heirs her two broth-
ers and her mother.
The partition proceedings introduced in evidence were
instituted by the widow, for the purpose of having her dower
admeasured to her, and for partition of the estate between
herself and the other heirs.
The principal objection taken to the validity of the pro-
ceedings in partition is, the court acquired no jurisdiction by
260 Nichols v. Mitchell. [Sept. T.
Opinion of the Court.
service of process of the persons of Leonard J., and Charles
C. Nichols, and hence the division of the estate, it is said,
was irregular, and without any binding force in law. The
service that was had, was upon the guardians, and not upon
the minors themselves, and whether that service was sufficient,
depends upon the question whether the proceedings in par-
tition were commenced by petition under the statute, or by
bill in chancery. If in chancery, it is conceded it was indis-
pensable the heirs should be made parties, and that there
should have been service of process on them, in order to give
the court jurisdiction, otherwise the whole proceedings would
be coram nonjudice.
In case the proceedings are under the statute by petition,
the mode of service is essentially different. The cause is to
be placed on the law docket. The statute points out the mode
in which the service shall be made, and requires that the sum-
mons to be issued shall be served by reading, as in common law
cases. It is provided that all persons having an interest in
any premises of which partition is sought to be made, or the
guardians of such as are underage, who shall not have joined
in the petition, shall have notice of such application by sum-
mons duly served, which summons shall issue against such
persons by the name and description given in the petition.
Kevised Statutes 1845, p. 400, sec. 6.
In the case at bar, the names and interest of the minor
defendants were correctly set forth in the petition, and their
guardians made parties by appropriate descriptions. The
summons was issued against the guardians by the names and
descriptions given in the petition, and the service was both
by reading and delivering a true copy. No reason is per-
ceived why this was not good service, if we shall hold the
proceedings were commenced and conducted under the pro-
visions of the statute. It is material, then, to inquire whether
the proceedings were under the statute or in chancery. The
mode of procedure in either court is so near alike that some
difficulty is experienced in determining which forum the
1873.] Nichols v. Mitchell. 261
Opinion of the Court.
party has selected. He may have partition made by petition
under the statute, or by bill in chancery. Either mode is
proper.
In Cost v. Rose, 17 111. 276, it was held the party had
elected to proceed in chancery, although the bill appeared
to have been framed under the statute, for the reason it was
addressed to the circuit court in "chancery sitting."
In Goudy v. Hall, 36 111. 313, it was said, in cases like the
one at bar, where the court has both a statutory and a general
chancery jurisdiction, the action of the court, when collater-
ally called in question, will be referred either to its general
or statutory powers, as may be necessary to sustain its juris-
diction. No better rule than this can be adopted. It gives
stability to, and confidence in, this class of sales. It is all
important that purchasers at such sales should be protected,
otherwise prudent men would be deterred from bidding, and
the estates of minors would be sacrificed in the hands of reck-
less speculators, for no others would venture to invest their
capital in doubtful titles.
It is said, this proceeding can not be under the statute, for
the reason the dower act provides the widow, in case her
dower is not assigned to her by the heirs, may file her peti-
tion in chancery. Without expressing an opinion on that
question, it is a sufficient answer to this objection to. say, the
petition is for dower and partition. The dowress was her-
self the owner of one-sixth of the lands in fee, and could
rightfully 'file her petition for partition. Whether the court
had jurisdiction to assign dower or not, it did have jurisdic-
tion to make partition of the estate, and could proceed to
determine the rights of the parties.
Treating this as a petition under the statute, we must
regard the service as sufficient to confer jurisdiction. The
court having jurisdiction of the subject, and having acquired
jurisdiction of the persons of the parties whose interests were
to be affected, by service of process in the mode provided by
law, and, notwithstanding the court may have proceeded
262 Nichols v. Mitchell. [Sept. T.
Opinion of the Court.
irregularly in some minor matters, in a collateral proceeding,
like this, the decree, and the proceedings under it, must be held
to be valid and binding on the parties in interest.
Subsequent to the partition, and after the lands in contro-
versy had been assigned to Charles C. Nichols, an applica-
tion was made, on his behalf, to the circuit court for leave
to sell so much of the real estate as might be necessary for
the maintenance of the ward. Leave was granted, and the
lands sold as previously stated.
The petition was in the usual form, and contained every
material averment necessary to confer jurisdiction upon the
court. The most serious objection taken to the decree and
sale thereunder is, that no notice of the intended applica-
tion for leave to make the sale was given, as required by
the statute. The objection, if founded in fact, would be a
serious one, for it goes to the jurisdiction of the court.
The notice was to the April term, 1857, while the applica-
tion was actually made at the March term preceding. This
apparent irregularity is accounted for by the fact that by an
act of the legislature, in force February 5, 1857, the time of
holding courts in Whiteside county, where these proceedings
were had, was changed from April to March, and all process
previously issued, made returnable to the terms as fixed by
that act. As a matter of fact, the court convened for that
term on the 24th day of March in that year, and the notice
had been published for the requisite number of times prior
to that date, as shown by the publishers' certificate, and the
finding in the decree. The notice, in cases like this, stands
in the place of process, by which parties are brought into
court, and, in analogy to process, it will be held to require
parties interested to appear at the terms of court as fixed by
law.
It is manifest, from the context, that the recital in the
decree, the parties again appeared on the "3d day of March,"
is a mere clerical error. No doubt it was intended to write
"■3d day of April." This is plain from the other parts of the
1873.] Turner v. Bennett. 263
Syllabus.
decree itself. This court is not inclined to regard with favor
such trivial objections, not affecting the jurisdiction of the
court. So slight a mistake, when we can see from the conr
text what was clearly intended by the court, ought not viti-
ate and render void a judicial record. Hofferbert v. Klinh-
hardt, 58 111. 450.
Very many objections have been taken to the decree and
the proceedings had under it, but none of them go to the
jurisdiction of the court, and can not, in a collateral proceed-
ing, be regarded as affecting the validity of the sale. For
this reason it is not deemed material to remark upon them
severally.
Irregularities not affecting the jurisdiction of the court,
have never been held to vitiate a judicial sale when attacked
collaterally. Mulford v. Stahenbach, 46 111. 308.
This view of the case renders it unnecessary to consider
the question raised, whether the interest of a tenant in com-
mon, in a portion of his estate, can be alienated by the
party himself, or by a judicial sale. Eegarding the partition
of the estate as valid, this question does not become material
in the decision of the case.
On the evidence in the record, the finding of the court was
clearly correct, and its judgment must be affirmed.
Judgment affirmed.
Susan A. Turner
V.
William H. Bennett.
1. Homestead exemption — not allowed as against title by descent. The
original Homestead Act of 1851 exempted the homestead merely from levy
and forced sale under legal process, for debts, and this court has held that
the amendatory act of 1857 extended the original act to embrace cases of
voluntary alienations by the husband, but the act, as amended, does not
264 Turner v. Bennett. [Sept. T.
Opinion of the Court.
apply to the case of the descent of property. On the husband's death,
his real estate descends to his heirs equally, the same as if the acts re-
ferred to had never been passed.
2. Same — not allowed to defeat sale on partition. A sale of the home-
stead, when necessary, in a suit for partition by the heirs, or a grantee of
one of the heirs, is not an alienation within the meaning of any home-
stead exemption law prior to that of 1872, and the widow or minor heirs
occupying the same can not withhold possession from the purchaser.
3. Partition — claim for repairs. Where, in making partition of land
and assigning dower, the widow had set off to her, as her dower, that por-
tion upon which she had made the principal improvements, and it appears
that the use of the whole premises had amply compensated her for the
repairs made by her on the remaining portion, there will be no error in
not decreeing compensation to her for her improvements and repairs.
Appeal from the Circuit Court of Whiteside county ; the
Hon. William W. Heaton, Judge, presiding.
This was a petition for partition, filed by William H. Ben-
nett against Susan A. Turner, Amos W. Simpson, Mary F.
Simpson and William E. Ellis. The petitioner acquired his
title by a conveyance from Algernon B. Ellis, one of the heirs
of Emmitt Ellis, deceased. It appeared that Emmitt Ellis
died seized of the premises sought to be divided, leaving the
said Susan A., his widow, and the said Algernon B. Ellis,
Mary F. and William E. Ellis, his children and only heirs at
law. The other facts of the case are stated in the opinion.
Messrs. Kilgour & Manahan, for the appellant.
Messrs. Sackett & Bennett, for the appellee.
Mr. Justice Sheldon delivered the opinion of the Court :
This was a petition for the partition of and assignment of
dower in certain premises which Emmitt Ellis died seized of,
filed by the grantee of one of the children of said Ellis,
against his widow and two other children. There was a de-
cree of partition and for assignment of dower. The dower
was assigned, it embracing one of two dwelling houses which
were situated on the premises, and the commissioners making
1873.] Tuknek v. Bennett. 265
Opinion of the Court.
report that the residue of the premises was not susceptible of
division, an order of sale thereof was made, and the same was
sold to Bennett, the petitioner, for $2415. On his subsequent
application for a writ of assistance, to obtain possession of
the portion of the premises purchased by him, the widow, in
resistance, set up a homestead right therein. The court
ordered a writ of assistance to issue, to which the defendants
excepted, and thereupon appealed.
The main question presented by the record is, whether there
is here a homestead right.
This depends upon the true construction of the original
Homestead Act of 1851, Laws of 1851, p. 25, and the amend-
atory act of 1857, laws of that year, p. 119.
The first section of the original Homestead Act, which
creates the homestead exemption, is as follows: "In addition
to the property now exempt by law from sale under execu-
tion, there shall be exempt from levy and forced sale, under
any process or order from any court of law or equity in this
State, for debts contracted from and after the 4th day of July,
A. D. 1851, the lot of ground and the buildings thereon occu-
pied as a residence and owned by the debtor, being a house-
holder, and having a family, to the value of $1000. Such
exemption shall continue after the death of such householder,
for the benefit of the widow and family, some or one of them
continuing to occupy such homestead, until the youngest child
shall become 21 years of age, and until the death of such
widow, and no release or waiver of such exemption shall be
valid, unless the same shall be in writing, subscribed by such
householder, and acknowledged in the same manner as con-
veyances of real estate are, by law, required to be acknowl-
edged/'
The amendatory act of 1857 is, "That the first section of
'An act to exempt homesteads from sale on execution/ ap-
proved February 11, 1851, be amended by inserting after the
words 'subscribed by such householder/ the words 'and his
wife, if he have one/ it being the object of this act to require,
266 Turner v. Bennett. [Sept. T.
Opinion of the Court.
in all cases, the signature and acknowledgment of the wife as
conditions to the alienation of the homestead/'
It is clear, that the original Homestead Act was only an
additional exemption law of property from sale under execu-
tion, providing for the exemption of the homestead merely
from levy and forced sale under any process of a court, for
debts. The amendatory act of 1857 seems to purport to
amend the original act in but one particular, the waiver of
such exemption from forced sale under legal process, for debt,
requiring such waiver to be signed and acknowledged by the
wife as well as by the husband, and it was a question, whether
that was not the whole scope of the amendatory act, to alter
the original act in that single particular. But this court held
the construction to be that, by virtue of the concluding
words, "it being the object of this act to require, in all cases,
the signature and acknowledgment of the wife as conditions
to the alienation of the homestead," the act extended to em-
brace cases of voluntary alienation by the husband, and that
it was not limited to cases of involuntary alienation under
legal process, for payment of debts, as contemplated and pro-
vided against by the original act.
Under the homestead acts, as construed by this court, there
is a homestead exemption as against the creditors of the home-
stead debtor, and as against his alienee. The attempt here is, to
extend the homestead exemption yet further, and make it
apply to a case of descent of property by the death of the
householder intestate, and to set up a homestead right as
against the children of the intestate. The claim is, that the
widow shall not only be endowed of the third part of all the
lands whereof her husband was seized ; have a large amount
of specific property, and one-third of all the personal prop-
erty, after the payment of debts, as her own forever, but that,
in addition thereto, she shall hold, as against the children of
her husband, a homestead right to the value of $1000. The
effect would be to enlarge the right of dower, to take from
1873.] Turner v. Bennett. 267
Opinion of the Court.
the heirs and give to the widow, as well, also, as to discrim-
inate between the children in favor of the minors.
No such purpose to change the law of descent or of dower
is manifested by the homestead acts. The exemption which,
by the original act, is to continue after the death of the house-
holder, for the benefit of the widow and family, is not an
absolute exemption, but "such exemption," that is, the exemp-
tion previously stated, which is one from levy and forced sale
under legal process, for debts.
The term "alienation," used in the amendatory act, can
not, in any proper sense, apply to the case of the descent of
lands to heirs under the law of descent. It must mean a
transfer or conveyance, such an one as the signature and
acknowledgment of a party are proper to effect, as the law
requires those acts as conditions to the alienation of the home-
stead. If the homestead exemption applies to the case of
the descent of property, then it may be released in the mode
provided by the statute, as the act contemplates that it may
be released. But it would be preposterous to suppose the
legislature intended any such thing, as that the "signature
and acknowledgment of the wife" should apply to the case
of the operation of the law of descent.
We are of opinion that, when the husband dies intestate,
without any debts for the payment of which the homestead
is exempt, without any alienation by him, his real estate
descends to his children, equally, and must be divided accord-
ing to the laws of dower and descent, between the widow and
heirs, precisely the same as if the Homestead Law of 1851,
amended by the law of 1857, had no existence on the statute
book.
The proceeding in partition is for the division of the prop-
erty among its owners, in order that each may have the full
enjoyment of his own, and if a sale becomes necessary, be-
cause the property can not be divided, it is but a necessary
incident in the proceeding, in order to effectuate such divi-
sion. It is not a forced sale for the payment of debts. The
268 Chase et al. v. Heaney. [Sept. T.
Syllabus.
partition of the estate is not an alienation of the homestead,
within the meaning of the homestead acts.
The Homestead Exemption Act of 1872 does exempt the
homestead from the laws of conveyance, descent and devise,
but this suit was commenced before the enactment of that
law, and is not affected by it.
A minor point is made, that the widow was not allowed
compensation which she claimed for improvements made upon
the premises. The commissioners, in assigning dower, as-
signed to her that portion of the premises upon which the
greater part of the improvements which she claims compen-
sation for, are situated, and upon which those which perma-
nently enhance the value of the estate, stand. The others
consist of repairs made, and we think full compensation has
been received by the use of the entire estate for upwards of
eight years, from the rent of a portion of which she has
derived quite a large amount of rent. We do not find, from
the evidence, that the court committed any error in this
respect.
The decree will be affirmed.
Decree affirmed.
Samuel B. Chase et al
V.
John Heaney.
1. Contract — implied by one undertaking to make an abstract of title
from the records. If a person engages in the business of searching the
public records, examining titles to real estate, and making abstracts
thereof, for compensation, the law will imply that he assumes to possess
the requisite knowledge and skill, and that he undertakes to use due and
ordinary care in the performance of his duty; and for a failure in either
of these respects, resulting in damages, the party injured is entitled to
recover.
1873.] Chase et at. v. Heaney. 269
Statement of the case.
2. Where a party was employed to examine the records and make an
abstract of the title to real estate, and he omitted to note the fact of a
judgment and sale of the land for taxes, of which the purchaser was
ignorant until the time for redeeming had expired, whereby he was
caused to pay out money to remove the cloud upon his title, it was held,
that the party making the abstract was liable in damages to the purchaser
for the sum so paid by him to remove the cloud.
3. A party examining the title to real estate for pa}', can not limit his
liability by an obscure certificate to the abstract, without specially call-
ing the attention of the other party to it. If he discovers that he can not
furnish a complete and reliable abstract, it is his duty to give the other
party notice of the fact, that he may apply elsewhere; otherwise, such
other party will have a right to rely on his competency and fidelity in
this respect.
4. Presumption — as to whether a judgment is entered of record. In
a suit by a purchaser of land, against a party examining the title for pay,
for neglecting to show the fact of a judgment, and sale of the land, the
latter contended that no recovery could be had, as it was not shown the
judgment and sale were entered of record: Held, in the absence of proof
to the contrary, it would be presumed the officers of the court did their
duty, and promptly made a record of the judgment and sale.
Appeal from the Circuit Court of Cook county; the Hon.
John G. Kogeks, Judge, presiding.
This was an action on the case, for negligence, by John
Heaney, against Samuel B. Chase, Horace G. Chase, Charles
C. Chase and John B. Adams, to the July term, 1872.
The plaintiff, on April 26, 1866, purchased of James O.
Humphrey a part of lot 4, in block 40, in the original town
of Chicago, which was conveyed by Humphrey and wife on
the same day. On August 12, 1867, the land was sold for
taxes, and on September 8, 1869, a deed was made for the
same to Asahel Gage, by the sheriff of the county. In the
spring of 1869, the plaintiff employed the defendants, who
were then engaged in the business of making examinations,
searches and abstracts of title, to continue and bring down
the plaintiff's abstract of title to the tract above named, with
others, for which a fee of $25 was paid.
The other material facts are stated in the opinion of the
270 Chase et al. v. Heaney. [Sept. T.
Opinion of the Court.
court. The plaintiff recovered judgment for $1300, from
which the defendants appealed.
Mr. George W. Thompson, and Mr. R. W. Ricaby, for
the appellants.
Messrs. J. C. & J. J. Knickerbocker, for the appellee.
Mr. Justice Scholfield delivered the opinion of the
Court :
The undertaking implied by the law, from appellants' enga-
ging in the business of searching the public records, examining
titles to real estate and making abstracts thereof, for compen-
sation, is, that they possessed the requisite knowledge and
skill, and that they would use due and ordinary care in the
performance of their duties. For a failure in either of these
respects, resulting in damages, the party injured is entitled to
recover. Story on Bailments, sec. 431; JRitchey v. West, 23
111. 385; McNevins v. Lowe, 40 id. 210; Steamboat New World
v. King, 16 Howard, 469; Clark v. Marshall, 34 Mo. 429.
Appellee employed appellants to make for him an abstract
of title to certain real estate which he owned. This they
attempted to do, but omitted to note on the abstract a judg-
ment against the property, for taxes, and its subsequent sale
to satisfy the same. Appellee claims to have been ignorant
of this judgment and sale, and that, relying on the correct-
ness of the abstract, he failed to redeem therefrom within the
time provided by law, in consequence of which he was com-
pelled to, and did, expend the amount of the judgment ren-
dered by the court below, in removing the cloud thus cast
upon his title.
It is contended, on behalf of appellants, that the evidence
fails to show that, at the time the abstract was made, this
judgment and sale were of record.
It is not controverted that there was, in fact, such a judg-
ment and sale; and as it was the duty of the officers to
1873.] Chase et al. v. Heaney. 271
Opinion of the Court.
promptly make the necessary records thereof, we must, in the
absence of evidence to the contrary, presume it was done. If
the officers did not discharge their duty in this respect, appel-
lants should have shown the fact by proof, and not having
done so, the objection can not be sustained.
It is also contended that there is no evidence of a contract
whereby appellants agreed to furnish appellee with a com-
plete abstract of all that appeared upon the public records
relative to the title to the property.
The evidence shows that appellants held themselves out to
the public as being engaged in the business of searching the
public records, and making abstracts of title, for compensa-
tion; that appellee requested them to make an abstract of the
title to his property, and paid them the compensation which
they charged therefor; and this is all that was necessary, for
the purposes of the present suit; nor do we consider that it
was competent for appellants to limit their liability by an
obscure clause in their certificate appended to the abstract,
without specially calling appellee's attention to it. They
undertook to furnish him an abstract of what appeared on
the public records affecting the title to his property, and he
was authorized to rely upon their competency and fidelity in
this respect. When, therefore, they discovered they could not
furnish him with a complete and reliable abstract, it was their
duty to notify him of the fact, so that he might apply else-
where.
Upon the whole evidence, we think it sufficiently appears
that appellants were guilty of such negligence as renders
them liable.
The claim made, that appellee was guilty of contributory
negligence, we do not consider sustained by the evidence.
Perceiving no error in the record, the judgment is affirmed.
Judgment affirmed.
272 C, B. & Q. E. E. Co. v. Kosenfeld. [Sept. T.
Opinion of the Court.
The Chicago, Buelington and Quincy K. R. Co.
V.
Max Rosenfeld.
Negligence — injury at street-crossing. In a suit against a railroad
company for injury to the plaintiff, alleged to have been occasioned by
the negligence of the defendant, it appeared the plaintiff was injured by
a collision while attempting to cross the defendant's track upon a public
street; that there were two or more main tracks at the place of the
accident, and that the plaintiff was detained with his horse and wagon
by a train of cars of another company, on the track next to him, and
that as soon as this train passed, he started to drive across the track,
there being a train of defendant backing across the street on one of
the other tracks, which struck his horse and wagon. It also appeared
that this train was moving at the speed of four or five miles per hour,
that the bell was being rung, that a sufficient number of men were in
charge of the train, and that there was a flagman at the crossing in
the discharge of his duty. The weight of evidence also showed that
the flagman hallooed to plaintiff to stop, and made efforts to keep him
from crossing. It was held, that, under this state of facts, a verdict in
favor of the plaintiff and against the defendant could not be sustained.
Appeal from the Superior Court of Cook county ; the Hon.
William A. Porter, Judge, presiding.
Messrs. Walker, Dexter & Smith, for the appellant.
Mr. John Lyle King, for the appellee.
Mr. Justice Craig delivered the opinion of the Court :
This was an action brought by appellee, to recover damages
of appellant for injuries sustained by him, resulting from a
collision which occurred about the middle of the day of
October 9th, 1872, at a point where the road of appellant
crosses Morgan street, in the city of Chicago.
A trial was had in the Superior Court of Cook county,
which resulted in a verdict for appellee for the sum of $750.
The defendant brings the cause to this court by appeal,
and insists upon a reversal of the judgment mainly on the
ground that the verdict is against the weight of evidence.
1873.] C., B. & Q. E. E. Co. v. Eosenfeld 273
Opinion of the Court.
We have carefully examined the testimony preserved in
the record in this case, and we are satisfied that the verdict
is manifestly against the weight of evidence.
Eeluctant as we may feel to reverse on the ground that the
verdict is not sustained by the evidence, it is, however, the
settled doctrine of this court to reverse if there is a total
failure of evidence, or if the verdict is manifestly against
the weight of evidence. Lowry v. Orr, 1 Gilman, 70; Wilson
v. Bevans, 58 111. 233.
The record shows that where the accident occurred, there
are two or more main tracks; that appellee, while passing
north with his horse and wagon, on Morgan street, was
stopped at the crossing by an Illinois Central train, which
was standing on the south track, across Morgan street; that
appellee stood there some fifteen minutes, when this train
moved forward to the east, and appellee started to drive across
the track ; that at the same time the train started east, a
train of six or eight flat, freight cars, belonging to appellant,
came from the east going west, on the track north of the one
on which the other train was moving, with the engine on the
east end of the train, pushing it; and as appellee attempted
to cross, his horse was struck by the westward car of appel-
lant's train. The horse was so injured he had to be killed.
The wagon was damaged, and appellee was thrown out on
the street and injured.
Appellant's train was moving west at the speed of four or
five miles per hour, the bell was being rung, and four men
were in charge of the train, and there was a flagman at the
crossing in the discharge of his duty.
Thus far there seems to be no dispute in regard to the facts.
It is, however, claimed by appellee that, when the Illinois
Central train moved east, he was told by the flagman to go
ahead, and he moved up, and the collision occurred; and
this seems to be the controverted fact in the case.
Upon this point, appellee called three witnesses. The first
one, Wendellsohn, swears he was standing at the crossing,
18— 70th III.
274 C., B. & Q. E. E. Co. v. Eosenfeld. [Sept. T.
Opinion of the Court. 4
waiting to cross the track, going north; that when the train
started east, the flagman moved his flag to cross; he started,
went two feet, saw the cars backing up, and the flagman
called to them to stop; told everybody to stop, with his
flag.
Appellee then called one Fink, who testified that when
appellee started to cross, the flagman told him to go, and the
cars came along and struck him.
Joseph Lewis was also called, and testified, just as quick
as the train went from the west going east, " Go ahead," the
flagman said, and waved his flag.
The appellee also swears he was told to cross, by the flag-
man, and was not directed to stop.
Upon this point the appellant called six witnesses, who
were present, and heard and saw what was done, all of whom
testify that appellee was not directed to cross, and that the
flagman waved his flag and hallooed to the men to stop.
The flagman, in his evidence, says : " I flagged the man
that was on the south side, then the men that were on the
north. After I flagged, I hallooed for them to keep back,
there was a train coming. The appellee drove on, and paid
no attention. It seemed the more I hallooed, the more he
hurried up — whipped his horse with the lines, and tried to
hurry. The men on the north side stopped, the men behind
appellee stopped. Did not tell anybody to go ahead after
the train went east. Never made any motion for any one to
go ahead."
Here is the evidence of six witnesses who were present and
saw the accident. All seem to agree, in substance, that efforts
were made to keep appellee from crossing, and that he was not
directed to cross the track.
There is also another fact that seems to corroborate this
evidence, and that is the fact that no other person attempted
to cross the track, although there were a number of persons
waiting to cross, both footmen and some with teams.
1873.] Gooding v. Morgan. 275
Opinion of the Court.
Taking the whole evidence together, we are clearly of
opinion that the weight of the testimony is with appellant,
and we are satisfied the case should go before another jury.
The judgment is reversed and the cause remanded.
Judgment reversed.
Edward Gooding
Kichard P. Morgan.
Evidence— judicial notice. This court takes judicial notice of the acts
of Congress in regard to the disposal of the public lands, and of the kind
of evidence furnished to a purchaser, and of the system of surveys
adopted for those lands by Congress. This court also takes judicial notice
of the division of the State into counties.
Appeal from the Circuit Court of Livingston county; the
Hon. Charles H. Wood, Judge, presiding.
This was an action of ejectment, by Eichard P. Morgan,
against Edward Gooding. The opinion of the court states
the necessary facts.
Mr. L. E. Payson, for the appellant.
Mr. H. A. Gardner, Jr., and Messrs. H. & J. D. Spencer,
for the appellee.
Mr. Chief Justice Breese delivered the opinion of the
Court :
This was an action of ejectment, in the Livingston circuit
court, for a part of the same premises described in the action
in the case of Chicago and Alton Railroad Company v. Morgan,
69 111. 492. The same patent was introduced in evidence, to
which the defendant made no special objection.
It will be perceived, the patent described the land as seven
276 C. & N. W. Ry. Co. v. Clark, Admx. [Sept. T.
Svllabus.
east, "in the district of lands subject to sale, at Danville,
Illinois. " The proof was, the land claimed in the declara-
tion was in seven east of the third principal meridian.
It is claimed here, by appellant, that the evidence was in-
sufficient, it not showing that town thirty north, range seven
east, in the district of lands subject to sale, at Danville, is
town thirty north, range seven east of the third principal
meridian.
We see no force in the objection made. This court takes
judicial notice of the acts of Congress in regard to the dis-
posal of the public lands, and of the kind of evidence fur-
nished to a purchaser, and of the system of surveys adopted
for those lands by Congress. This court also takes judicial
notice of the division of this State into counties; and putting
this knowledge into requisition, it enables us to say, with the
most perfect confidence, that a tract of land sold in the Dan-
ville land district, in this State, lying in seven east, is a tract
of land east of the third principal meridian, and can be no
other, and that it is within the established limits of the
county of Livingston.
The judgment is affirmed.
Judgment affirmed.
The Chicago and Northwestern Railway Co.
Catharine E. Clark, Admx.
1. Comparative negligence. In an action to recover for injury
alleged to have resulted from the negligence of the defendant, it is not
sufficient to entitle the plaintiff to recover, if he shall have been guilty of
contributory negligence, that there was a mere preponderance, in the
degree of negligence, against the defendant.
2. The rule is, that, although the plaintiff may have been guilty of
some negligence, still, if it is slight, as compared with that of the defen-
dant, he may recover. But he can not recover unless the negligence of
the defendant clearly and largely exceeds that of the plaintiff.
1873.] C. & N. W. Ry. Co. v. Clark, Admx. 277
Opinion of the Court.
3. Instructions — ignoring a principle involved, properly refused. In a
case involving the question of comparative negligence, an instruction
which ignores this principle, is properly refused.
4. Evidence — affidavit for a continuance. Where an affidavit for a con-
tinuance is agreed to be admitted as evidence so far as it is relevant, this
will not entitle the whole of it to be read in evidence, and there will be
no error in excluding such parts as are not relevant.
Appeal from the Circuit Court of Whiteside county; the
Hon. W. W. Heaton, Judge, presiding.
This was an action on the case, by Catharine E. Clark
against The Chicago and Northwestern Railway Company, to
recover damages for causing the death of Horace Clark, the
plaintiff's intestate, through negligence. The opinion of the
court contains a summary of the facts.
Messrs. Henry & Johnson, and Mr. B. C. Cook, for the
appellant.
Messrs. Sackett & Bennett, for the appellee.
Mr. Justice Walker delivered the opinion of the Court:
It is shown, by the evidence, that Horace Clark was engaged
in hauling, in a two-horse wagon, some wheat from a car that
was standing on the railroad track. His team was on the
south side of the car. At the distance of 14 feet 8 inches
south of the track on which the car was standing, from, which
the wheat was being taken, there was another track. Whilst
Clark was thus engaged, an engine was switching out a train
from the yard. The engine was passing along the south
track from -the west to the east. The team was timid, and
afraid of the engine. Immediately before it reached the point
opposite where the team stood, the horses became restive, and
although Clark was standing in the wagon, with the lines in
his hands, they became unmanageable, and backed the wagon,
and, one of the horses backing more rapidly than the other,
the wagon turned, so that the hind end came in contact with
278 C. & N. W. Ey. Co. v. Clark, Admx. [Sept. T.
Opinion of the Court.
the engine, and Clark fell on the side next the track, with his
arm on the rail, over which the driving wheel ran and crushed
it. Clark died a day or two afterwards, from the effects of
the injury.
It seems the employees of the company had warned Clark
that there was danger in driving that team about the depot,
but a few days previously. The engine appears to have been
going at a speed of about four miles an hour. About these
facts there seems to be no dispute. But the evidence is not
entirely harmonious as to whether Clark hallooed to and sig-
naled the engineer to stop, before the accident occurred. Two
witnesses testify that he did, whilst the engineer and bystand-
ers swear they neither saw the signal nor heard Clark halloo
to stop. On this state of facts, the jury rendered a verdict
in favor of plaintiff, and against the company, for $4408. A
motion for a new trial was overruled, and judgment rendered
on the verdict, and this appeal is prosecuted.
The contest before the jury turned upon whether there was
negligence on the part of the company, and whether Clark
was free from negligence, or, if not, whether his negligence
was slight, as compared with that of the company. That
being the question, it was important, to a proper solution of
it, that the jury should have been accurately instructed as to
the law of negligence. It is urged that the second of plain-
tiff's instructions, given to the jury, is erroneous. It is this :
"Even though the jury should believe, from the evidence,
that the said Horace Clark was, at the time in question, guilty
of some slight negligence, either in his management of the
team, or in his efforts to escape contact with the engine, still,
if they further believe, from the evidence, that the negligence
of the railway company, at said time, clearly exceeded any
negligence, if such negligence has been proven, of said Clark,
and was the immediate cause of his death, then the jury must
find the railway company guilty."
This instruction is not correct.
1873.] C. & N. W, Ey. Co. v. Clark, Admx. 279
Opinion of the Court.
We have never held, as this instruction announces, that,
where there is negligence on both sides, the mere preponder-
ance against the defendant will render him liable. The rule
is, that, although the plaintiff may have been guilty of some
negligence, still, if it is slight, as compared with that of the
defendant, he may recover. But he can not recover, unless
the negligence of the defendant clearly and largely exceeds
his. Illinois Central Railroad Company v. Backus, 55 111. 379;
Chicago and Alton Railroad- Company v. Grefzner, 46 111. 83;
The Illinois Central Railroad Company v. Triplett, 38 111. 485.
These cases illustrate the application and the extent of the
rule.
Under the instruction given, although there may have been
but slight negligence on the part of the company, and some
negligence on the part of deceased, still, if the negligence of
the company clearly exceeded that of deceased, although in
the smallest degree, plaintiff might recover. Or, under a
case where there is gross negligence on the part of both plain-
tiff and defendant, still, if that of the defendant was clearly,
though in the slightest degree, the greater, a recovery could
be had under such an instruction. This has not been an-
nounced by this court as the law, in any case, and to do so
would be unreasonable, and work great injustice and wrong.
It is not the law, and hence can not be sanctioned as such.
We have no inclination, even if we had the power, to extend
the rule beyond the cases to which we have just referred.
We have no doubt this instruction misled the jury in their
finding, and it should not have been given.
It is urged, that the court erred in refusing to give the sixth
of defendant's instructions, as it was asked, and without mod-
ification. We do not perceive that the modification to this
instruction was improper, as it fairly presented and defined
the duty of each party. The fourth, which was refused,
ignored the principle of comparative negligence, and should
not have been given. We see no objection to a modification
of the instruction, and it was required. But the modification
280 C. & N. W. Ry. Co. v. Clark, Admx. [Sept. T.
Opinion of the Court.
is not precisely accurate. It should have added to it the
words, "than the negligence of plaintiff."
The substance of the seventh instruction had already been
given in the sixth. The sixteenth instruction is not appli-
cable to the evidence, as it does not appear that the lines
were lying loose in the wagon. The seventeenth excludes all
other means of prudently controlling the horses than by
hitching them. This is wrong, as there are various other modes
of taking care of the horses, as they were then situated, that
would have been adopted by a prudent man, besides hitching
them. The eighteenth ignored the question of comparative
negligence. The same objection applies to the nineteenth of
defendant's instructions, as to the eighteenth, and it was prop-
erly refused.
It is also urged, that the court erred in refusing to admit
in evidence a portion of one of the affidavits for a continu-
ance. There is nothing to show that it was agreed that the
entire affidavit should be admitted. The statement in the
record is, that here the defendant read, as far as the same was
relevant, a portion of an affidavit for a continuance of this
cause, and that portion is set out in the transcript; it proceeds,
and the court refused to allow another portion of the same
affidavit to be read to the jury, to the exclusion of which the
defendant excepted. It fails to appear that appellee ever
agreed that the affidavit should be read to the jury. We
infer, although it is not stated, that plaintiff agreed to admit
the affidavit, so far as it was relevant. But such would fall
short of an admission that the whole affidavit might be intro-
duced in evidence.
We should not incline to reverse on this assignment of
error, but, for the errors indicated, the judgment of the court
below is reversed and the cause remanded.
Judgment reversed.
1873.] Simons v. Waldron et al. 281
Opinion of the Court.
Samuel Simons
v.
Asa D. Waldron et al.
1. Variance — between writ and declaration, how taken advantage of. If
there is a variance between the summons and the declaration as to the de-
fendant's name, it must be taken advantage of by plea in abatement.
2. New trial — on the evidence. Where the evidence is conflicting and
irreconcilable, and the jury are properly instructed, a new trial will not
be granted, but the verdict must be relied on as settling the controverted
facts.
Appeal from the Superior Court of Cook county : the
Hon. William A. Porter, Judge, presiding.
This was an action of debt, by Asa D. Waldron and others
against Joseph Moffitt and Samuel Simons, upon an appeal
bond. The trial resulted in a verdict and judgment in favor
of the plaintiffs for $1260.50, from which the defendant,
Simons, appealed.
Messrs. Garrison & Doran, for the appellant.
Mr. Norman C. Perkins, and Mr. J. Henry Truman,
for the appellees.
Mr. Justice Scott delivered the opinion of the Court :
The record in this case has been carefully examined, and
we are unable to detect any error for which the judgment
ought to be reversed.
The action is upon an appeal bond, given in the case of
The Tug Boat E. P. Dorr v. Waldron et al, which was brought
to this court at the September term, 1871, and was then
affirmed (62 111. 221.) The original bond was destroyed by fire,
at the time the court house in Chicago was burned, in 1871.
Appellant pleaded non est factum, which plea was verified by
affidavit. Upon that issue a trial was had, which resulted in
282 Simons v. Waldron et al. [Sept. T.
Opinion of the Court.
a verdict against appellant, as security on the bond, the prin-
cipal, Moffit, not having been served with process.
The objection, the court admitted improper evidence, is
wholly untenable.
The rulings of the court, in the admission and exclusion
of evidence, were quite as liberal in favor of appellant as he
had any right to claim or could expect. Indeed, we are unable
to perceive how he was prejudiced, in that regard, by any
decision of the court.
The signature affixed to the bond, as certified by the clerk
of the Supreme Court, is Samuel Simmons. It is conceded
appellant's name is Samuel Simons, and as the declaration
counts on a bond made by Samuel Simmons, it is insisted
there is a fatal variance between the proof and declaration.
The copy of the bond, when offered in evidence, was found
to correspond exactly with the averments in the declaration,
and the alleged variance did not exist. The summons which
was served upon appellant was issued against Samuel Simons,
and if there was a variance in the writ and declaration, the
proper mode of taking advantage of it was by plea in abate-
ment. This he did not do, and it is not perceived how the
question of variance suggested becomes material.
Manifestly the only issue that could be tried under the
pleadings was, whether appellant, in fact, executed the bond
upon which the suit was brought, and it appears, from the
bill of exceptions, this was the sole issue submitted to the
jury. Upon this issue the evidence is conflicting, and, in
some respects, we may say, irreconcilable.
The original bond having been destroyed, there was no tes-
timony produced as to the genuineness of the signature of
appellant. There is, however, the testimony of two wit-
nesses as to his repeated acknowledgments, after the case had
been affirmed in the Supreme Court, that he had signed the
bond, and his liability thereon. The defense relied on is,
that he had signed two other bonds at the instance of Buck-
ley, who seems to have obtained the execution of this one,
1873.] Barm v. Bragg et al 283
Syllabus.
and in his conversation with the witnesses it is insisted he
had reference to the other bonds. There is some evidence in
the record, about which it seems to us there can be no dis-
pute, that is inconsistent with this theory of defense. In the
conversations with Waldron and Perkins, allusions were
made to the suit of Waldron against the tug boat Dorr, as
having been affirmed, and of the purpose of the parties inter-
ested to carry it to the Supreme Court of the United States.
Reference was made to the further significant fact that
Buckley was security on the bond to release the boat from
the attachment levy, and unless all of this evidence was
deliberately false, he must have been surety on this bond.
Where there is such a contrariety of evidence as is shown
by the record, and the jury have been properly instructed, as
they were in this case, we must rely upon the verdict, as set-
tling the controverted facts.
This case affords no sufficient reason for a departure from
this well established rule, and the judgment must be affirmed.
Judgment affirmed.
Charles H. Barm
V.
Frederick Bragg et al.
1. Chancery jurisdiction — remedy at law. A party having a com-
plete legal title to real estate, free from all incumbrances, and in the pos-
session of the same, can not maintain a bill in chancery to restrain
threatened trespasses, conveyances and leases of a mere stranger, unless
special circumstances are shown, so that the court can see that the threat-
ened conveyances or leases will operate as a cloud upon the title, or that
the trespasses will tend to the destruction of the inheritance, or work
irreparable injury*.
2. Amendment — of bill in chancery, discretionary. A motion to amend
a bill in chancery is addressed to the discretion of the court.
284 Barm v. Bragg et at. [Sept. T.
Opinion of the Court.
Appeal from the Circuit Court of Cook county; the Hon.
E. S. Williams, Judge, presiding.
Messrs. Runyan, Avery, Loomis & Comstock, for the
appellant.
Mr. E. S. Bragg, for the appellees.
Mr. Justice McAllister delivered the opinion of the
Court :
This is an appeal from the decree of the circuit court of
Cook county, dismissing the appellant's bill in chancery to
enjoin appellee Bragg from leasing, selling, conveying or in
any manner incumbering or putting a cloud upon lot 36,
block 35, Canal Trustees' sub-division, of section 7, township
39, range 14 east of third principal meridian, in Cook county,
or going into, or putting any person into, possession thereof,
or any portion of the same, and to enjoin appellee Whitson
from interfering with the possession of said premises.
The only ground for equitable interference disclosed by the
bill, is, simply, that the complainant was the owner in fee
simple of said premises, free from all incumbrances whatever,
and, as such owner, was in possession, and had paid taxes on
the land since 1865; but that appellee Bragg is now insisting
upon leasing, selling and consuming said property, placing a
cloud upon the record, so as to injure complainant, etc., and
upon placing one Andrew Whitson into the possession of the
west half of said lot, threatening to put a building thereon.
A temporary injunction was awarded; but upon a general
demurrer being filed to the bill, and motion made to dissolve
the injunction, for want of equity, and because complainant
had an adequate remedy at law, the court dissolved the
injunction. The complainant's solicitor then applied for leave
to amend the bill, and tendered an amendment, not sworn to,
to the effect that Bragg had 'leased the west half of the lot
to Whitson for a period of years; had endeavored, and is now
1873.] Barm v. Bragg et id. 285
Opinion of the Court.
threatening, to convey the same by deed to other persons, so
as to incumber the title to the same; had, in fact, mortgaged
said premises, and Whitson had commenced an action of forci-
ble detainer to recover possession, from complainant, of the
premises. The court overruled the motion to amend, sus-
tained the demurrer, and, no other offer to amend being
made, dismissed the bill. The complainant appeals.
The complainant came into a court of equity, alleging that
he had a complete legal title to the premises, free of all
incumbrances, and asks the court to interfere to restrain
threatened trespasses, conveyances and leases of a mere
stranger. There is nothing stated in the bill from which the
court could see that the threatened conveyances or leases
would operate as a cloud upon complainant's title; and as to
the trespasses, there is nothing stated from which an injury
tending to the destruction of the inheritance, or that would
be irreparable, was threatened. Where the plaintiff is in
possession, and the acts are those of a stranger, the tendency
of the court is, not to grant an injunction, and will leave him
to his remedy at law against such stranger, unless there are
special" circumstances, or they tend to the destruction of the
inheritance. 1 Joyce on Law of Inj. p. 4; Addison on Torts,
pp. 315, 316.
It can not be claimed that the bill contains the requisite
elements of a bill of peace.
Amendments are in the discretion of the court. We are
unable to see how the amendment proposed would help appel-
lant's case.
The decree must be affirmed.
Decree affirmed.
286 Fleming v. Carter. [Sept. T.
ODinion of the Court.
John Fleming
V.
Heman Caeter.
1. Ejectment — legal title must prevail over an equitable one derived from
verbal contract. The plaintiff, in an action of ejectment, sold a farm to A,
on a credit of ten equal annual payments, and A, with his consent, sold
32 acres of the same to the defendant in ejectment, it being verbally agreed
that, when the defendant paid the price, and A should pay the same to the
plaintiff, the latter would convey to the defendant. The defendant com-
pleted his payment, which was paid to the plaintiff and credited on A's
contract, and the plaintiff afterwards sought to recover the land in eject-
ment: Held, that the claim of A to the tract so purchased by him, in its
fullest extent, constituted no defense to the action of ejectment, and that
the defendant's recourse for relief was in a court of equity.
2. Statute of Frauds — relieved against, in equity only. In a court of
law, part performance of a verbal contract, which is required to be in
writing, does not take the case out of the operation of the Statute of
Frauds.
3. Same— part performance to take case out of in equity. The taking
possession of land under a verbal contract, payment of the price and
making valuable improvements thereon, will take the case out of the
operation of the Statute of Frauds, in a court of equity, and a specific
performance may be had.
Appeal from the Circuit Court of La Salle county; the
Hon. Edwin S. Leland, Judge, presiding.
Messrs. Bushnell & Bull, for the appellant.
Mr. Charles H. Brush, for the appellee.
Mr. Justice Sheldon delivered the opinion of the Court:
This was an action of ejectment, brought by John Fleming,
against Heman Carter, wherein judgment was rendered in
favor of the latter, and the former appealed.
The case, as attempted to be established by the evidence
on the part of the defendant, was this: Fleming, being the
owner of the premises in controversy, which composed a part
1873.] Fleming v. Cartek. 287
Opinion of the Court.
of a farm of 300 acres of land, some time in 1863 made
a contract for the sale of the 300 acres to one Wilcox, and
executed to the latter a bond for the conveyance to him of
the whole land, upon the payment of $7500, in ten equal
annual payments, the first commencing January 1,1866, with
interest to be paid annually, under which bond Wilcox went
into possession in 1863.
The premises in controversy, comprising some 32 acres,
were separated from the rest of the farm by the Chicago,
Burlington and Quincy Railroad, which ran through it from
east to west.
Some time in 1866, Wilcox, by the consent of Fleming,
sold the 32 acres to Samuel Carter, for his son, Heman Car-
ter, for $475, to be paid in two short payments, and Fleming
expressly promised Samuel Carter that he would convey the
premises to him, or any one he might name, on payment of
the money. By arrangement between Fleming and Wilcox,
at the time the former consented to the sale by Wilcox, the
latter was to give the money derived from the sale to Flem-
ing. Carter made his payments for the land in full to Wil-
cox, as agreed, and the latter paid them over to Fleming,
informing him they came from Carter, and they were indorsed
on Wilcox's contract with Fleming.
In the fall of 1866, Heman Carter, the appellee, and de-
fendant below, for whom the land was purchased from Wil-
cox, went into the possession of it, and has remained in
possession ever since, and has made valuable improvements
thereon and paid all taxes. The above contract between
Wilcox and Carter, and Fleming's assent to it, and promise
to make the deed under it, were only verbal. Some two
months after Carter had made the last payment for the land,
on the 14th day of January, 1867, Wilcox and his brother,
Samuel B., executed to Heman Carter their bond to give to the
latter a good and sufficient deed in fee simple of the premises,
within ten years, acknowledging full payment of the consid-
eration money, $475.
288 Eeynolds v. Palmer & Hopper. [Sept. T.
Syllabus.
Admitting the claim of appellee to its full extent, it con-
stitutes no defense to an action of ejectment. Appellant
exhibits a complete legal title to the premises. As against
him, whatever interest appellee has in the land, is under and
by virtue of a verbal contract. By the Statute of Frauds,
such a contract for the sale of any interest in land, for a
longer term than one year, is void.
In a court of law, part performance does not take a case
out of the operation of the statute. It is otherwise in a court
of equity, where the part performance has been to the extent
here claimed. Appellee's recourse for relief must be in that
court, where he may have his bill for an injunction to restrain
the prosecution of this ejectment suit, and for a specific per-
formance of the contract.
The case of Stow v. Russell, 36 111. 18, referred to by appel-
lee's counsel, where a similar state of facts to that here set
up was held to amount to a legal defense in an action of eject-
ment, differs from the one at bar, in the important particular
that there, the contract was in writing.
The judgment will be reversed and the cause remanded.
Judgment reversed.
James A. Eeynolds
v.
Palmer & Hopper.
1. Practice — objection to evidence, and exceptions. A party can not as-
sign for error the admission of testimony to which he has not objected,
and excepted to the ruling of the court overruling his objection.
2. Error will not always reverse. The admission of improper testi-
mony, against objection, which is immaterial to the issue, and is not cal-
culated to mislead the jury, is not ground for the reversal of a judgment.
3. Evidence — materiality. Where a plaintiff had testified, without
objection, that his firm had charged the defendant with thirty-three
plows, and then testified that, in settlement, defendant said he did not
1873.] Keynolds v. Palmer & Hopper. 289
Opinion of the Court.
know any thing about the number of plows received ; that his son said
seven plows were charged which he never received; that they had been
credited with part of the money, and they paid for all but the seven plows
they never got, and the witness then testified, under objection, that the
seven plows were charged to the defendant: Held, that the evidence ob-
jected to could not prejudice the defendant, the question being whether
the thirty-three were all delivered, and the testimony objected to not tend-
ing to prove a delivery of the seven which were disputed.
4. New trial— finding as to the facts. The mere fact that this court
is not free from doubt as to which way the preponderance of the testi-
mony is, upon a disputed fact, does not authorize it to disturb the verdict.
Appeal from the Circuit Court of Warren county ; the
Hon. Arthur A. Smith, Judge, presiding.
Messrs. Stewart, Phelps & Stewart, for the appellant.
Mr. John J. Glenn, for the appellees.
Mr. Justice Scholfield delivered the opinion of the
Court :
This was an action of assumpsit, by the appellees against
the appellant, to recover the value of certain plows alleged
to have been sold and delivered by them to him. The jury
rendered their verdict in favor of appellees. Appellant
moved for a new trial, which was overruled, and judgment
was given upon the verdict by the court below. To this
appellant excepted, and brings the case before us by appeal.
But two questions are argued, and we will notice them in the
reverse order to that in which they are presented in appel-
lant's argument.
It is contended that the court erred in permitting Hopper,
one of the appellees, to testify that thirty-three plows were
charged to appellant, in the account book of appellees, with-
out introducing the book of account, or any evidence, as a
foundation for such secondary evidence.
It appears, from the record, that Hopper testified that
appellees had appellant " charged with thirty-three plows in
all; he personally knew that a portion of the plows were
19— 70th III.
290 Reynolds v. Palmer & Hopper. [Sept. T.
Opinion of the Court.
delivered," etc., but we fail to find any objection in the record
to the admission of this evidence, or that there was any
ruling upon it, to which exception was taken. It has long
since been declared, by this court, to be the law, that a party
can not assign for error the admission of testimony to which
he did not except. Sawyer v. The City of Alton, 3 Scammon
127; Smith et al. v. Kahili, 17 111. 67. The only exception
taken to any portion of Hopper's testimony was this: After
having testified as just mentioned, he proceeded to detail
what he knew of the delivery of the plows, and then said, as
appears from the record, " In settlement, defendant said that
he did not know anything about the number of plows received
in Abingdon by Reynolds & Son ; that Marion Keynolds
said seven plows were charged he never got; that they had
been credited with part of the money, and they paid for all
but the seven plows that they never got." Plaintiffs then
asked: "To whom were those cultivators charged?" Defend-
ant objected to this question, but the objection was overruled,
and to this, defendant excepted. Witness answered : " To James
A. Reynolds." We are unable to perceive how this answer
could have prejudiced appellant. He had, without objection,
permitted the witness to state that appellees had charged
appellant with thirty-three plows, and it is not now pretended
that there was any controversy upon any other point than
whether all of the thirty-three were delivered to appellant,
or whether seven of that number were in fact not delivered.
This evidence did not tend to prove a delivery, and was
wholly immaterial. Nor could it in any way mislead the jury.
The admission of testimony which is immaterial to the issue,
and not calculated to mislead the jury, is not ground for the
reversal of the judgment. Holbrook v. Nichol et al. 36 111.
161 ; Bauman et al. v. Boides, 51 id. 380.
It is also contended that the evidence does not sustain the
verdict. The evidence is conflicting, and we are not free
from doubt as to which way the preponderance is, but this
does not authorize us to disturb the verdict. We can not
1873.] Ozburn et al. v. Adams. 291
Statement of the case.
say that the jury, with the superior facilities they had to
determine this question, by having the witnesses before them,
were plainly and palpably wrong in the conclusion to which
they arrived.
The judgment of the court below is affirmed.
Judgment affirmed.
John B. Ozbtjkn et al.
V.
Paul B. Adams.
1. Trespass by animals — defective division fence. Where parties own
adjoining lands, separated by a division fence, and the defendants' horses
and cattle break through defendants' portion of the fence, which is defec-
tive, and damage the plaintiff's crops, the latter may maintain an action
against the defendants to recover the damages done by such stock, and
this notwithstanding his part of the fence is also defective.
2. Parties dependant — when owners of stock in severalty may be sued
jointly for trespass. Where the horses trespassing upon the plaintiff were
owned by several defendants, not jointly, but severally; were kept to-
gether in a common herd on the owners' farm, and were under the joint
control of all of the owners, and they broke through the defendants' por-
tion of a division fence, which was out of repair, and damaged the plain-
tiff's crops, it was held, that the plaintiff might maintain an action against
all the defendants, jointly.
3. Trespass by stock — who liable for. The party in possession of stock,
and who has control over them, is liable for damage done by them, in the
same manner as though he were the owner. The owner who hires his
stock to pasture in the field of another, when the latter puts them in a field
adjoining one, into which they break and do damage, is not liable to the
party injured.
Appeal from the Circuit Court of Stephenson county ; the
Hon. William Brown, Judge, presiding.
This was an action brought by Paul B. Adams, against
John B. Ozburn, Thomas Ozburn, David W. Ozburn and
William Ozburn. The opinion states the facts of the case.
292 Ozbuen et al. v. Adams. [Sept. T.
Opinion of the Court.
Mr. U. D. Meacham, for the appellants.
Mr. J. M. Bailey, and Mr. J. I. Neff, for the appellee.
Mr. Justice Craig delivered the opinion of the Court :
This was an action brought by appellee, against appellants,
to recover damages for crops destroyed by the stock of appel-
lants.
The case was commenced before a justice of the peace,
where appellee recovered a judgment of $23. Appellants
appealed to the circuit court of Stephenson county, where
the cause was tried before a jury, and a verdict rendered in
favor of appellee for $75.
The facts, as shown by the record, are these: Appellee
and appellants occupied adjoining farms, in Stephenson county,
separated by a division or partition fence, one-half of which
was owned and kept in repair by appellee, and the other half
by appellants. There were three houses on the land of appel-
lants, one occupied by Thomas and David, one by William,
and one by John. The animals of appellants that committed
the damage to appellee's crops, were owned by them in sev-
eralty, and not jointly, but were kept in a common herd on
appellants' farm, and seem to have been under the joint care
and control of appellants.
On the trial, it was proved appellants' portion of the fence
was not sufficient to turn stock, and that the damage was
done by the stock of appellants going over their portion of
the division fence and destroying the crops of appellee.
Appellants ask a reversal of the judgment on two grounds,
to-wit:
First — Because appellee's portion of the partition fence
was defective, and the damage was done by their stock going
over his portion of the fence.
Second — That the animals that did the damage were owned
by defendants in severalty, and not jointly, and that a joint
action against them can not be maintained.
1873.] Ozburn et al. v. Adams. 293
Opinion of the Court.
So far as the first question is concerned, appellee based his
right of recovery entirely on the ground that appellants' part
of the partition fence was not sufficient to turn stock, and
that their animals passed over such defective fence and did
the damage.
On the trial, appellants introduced evidence to show that
appellee's part of the partition fence was defective, and the
damage was caused by such defective fence; and, at their
request, the court, by the fifth instruction, in substance,
instructed the jury that, if they found the fence appellee was
bound to keep in repair, was defective, and the animals went
over such defective fence, and did the damage, appellee could
not recover. Thus, it appears that issue was fairly submitted
to the jury, both by the evidence and the instructions of the
court; and they have found against the appellants, and we
see no reason why their finding is not justified by the evi-
dence, as the preponderance of the testimony was clearly in
favor of appellee.
Upon the second question raised, there is no conflict of
evidence. The stock were owned by the defendants in sev-
eralty, but were kept by them in common on the farm they
occupied, and seemed to be under their joint control.
It is insisted, that a separate suit should be brought against
each owner, for the damage done by the stock of each. We
do not think this position tenable.
The owner of horses or cattle is not always liable for the
damage they may do. If, for instance, the appellants had
taken cattle to pasture on their farm, for hire, and the cattle
had gone through their part of the division fence, which was
defective, and damaged the appellee, we see no reason why
appellants, and not the owner of such cattle, would be re-
sponsible for the damage done; and this is upon the principle
that the liability rests upon the person in the possession and
control of stock, and not the owner.
In Russell v. Cottom, 31 Penn. 525, it was held that the
owner of domestic animals was not always liable in trespass
294 Ozbukn et al. v. Adams. [Sept. T.
Opinion of the Court.
for injuries done by them, but the liability rested on the per-
son having the custody and control. In that case, the court
say: "The reason of liability, in such cases, arises out of
the legal requirements to take the necessary care and control
of them, so as to prevent injury, which implies not only the
duty, but the right to control;" and again: "It is not the
ownership of the trespassing creature, but the possession and
use that creates the liability."
In the case of Barnum v. Vanderson, 16 Conn. 200, it was
held that he who has the care and custody of sheep, for the
purpose of depasturing them, is liable for damage done by
them, in the same manner and to the same extent as the
owner.
In the case of Ward et al. v. Brown, 64 111. 307, this court
held, where the owner of cattle hired them pastured in the
field of one Connors, and Connors placed them in the pasture
field of an adjoining farm, and they broke through a partition
fence on another farm, and destroyed crops, that the owner
was not liable.
These authorities all proceed on the ground that the pos-
session and control of the animal fixes the liability, and not
the ownership.
In the case under consideration, it was immaterial how
appellants owned the stock that did the damage. They had
the possession and control of the animals, and are liable
jointly for the damage they did.
It is said, the verdict of the jury is excessive. As to the
amount of damage done, the evidence was somewhat conflict-
ing. It was the duty of the jury, from all the evidence, to
determine the amount. We do not think the amount found
larger than the evidence would warrant.
The judgment will be affirmed.
Judgment affirmed.
1873.] Nicoll v. Todd et at. 295
Opinion of the Court.
Francis B. Nicoll
James Todd et al.
1. Dower — in what estate. To entitle a widow to dower, her hushand,
at some time during the coverture, must have been seized of either a legal
or equitable estate in land. If an equitable title, it must have been such
that, in case of his death, it would have descended to his heirs at law as
real estate, instead of going to his personal representatives as a chattel
interest or chose in action.
2. Where, before a conveyance to a husband, another person acquires
an equitable title to land by purchase and part payment of the purchase
money, and takes possession, makes improvements and finally completes
his payments, and receives a deed before the prior deed is recorded, the
widow of the prior grantee will not be entitled to dower in the land.
Appeal from the Circuit Court of Cook county; the Hon.
E. S. Williams, Judge, presiding.
Messrs. Paddock & Ide, for the appellant.
Messrs. Hoyne, Horton & Hoyne, and Mr. B. S. Mor-
ris, for the appellees.
Mr. Chief Justice Breese delivered the opinion of the
Court :
This is an appeal from the equity side of the circuit court
of Cook county, in a proceeding instituted therein by Fran-
cis B. Nicoll, for assignment of dower, as the widow of Ed-
ward A. Nicoll, deceased, in certain lots in the city of Chicago,
particularly described in the bill of complaint. James Todd
and Henry H.Honore were, with others, made parties defend-
ant, and such proceedings were had that the bill was dismissed
as to all except Todd and Honore. The cause was heard on
stipulation of the parties involving numerous and compli-
cated facts, which it is unnecessary to notice any further than
as they specially belong to this case.
296 Nicoll v. Todd et al. [Sept. T.
Opinion of the Court.
The principles and facts underlying the various claims this
complainant, at different times, has presented to the courts for
dower, were quite fully examined and discussed in Nicoll v.
Ogden et al. 29 111. 323-391, and we have no desire, nor does
this case demand, we should go over the ground then so
thoroughly explored.
The defendants claim through one Lewis W. Clark.
The question to which we have directed our attention is the
pivotal point on which the case turns, and that is, had Ed-
ward A. Nicoll, the husband of complainant, a legal or equit-
able.estate in these premises, as against these defendants, while
coverture existed ?
That he had not a legal estate, is settled by the case cited,
supra. Had he an equitable estate of inheritance in these
premises, as against Clark and his grantees?
Charles Butler conveyed the premises to Nicoll and Bush-
nell by deed recorded January 18, 1843.
On the 18th of July, 1842, Clark purchased the premises
of Butler, and received from him, he then holding the legal
title, a written contract, duly executed, for the conveyance
of these premises, upon making final payment therefor, as
provided in the contract. Clark made the first payment on
the execution of the contract, and entered at once into the
actual possession of the premises, making thereon valuable
improvements, such possession being open, visible, exclusive
and notorious. Subsequently, Clark, while in possession,
made the balance of the payments, and received a deed.
Six months before Butler had conveyed to Nicoll and Bush-
nell, Clark had acquired an equitable interest in the premises,
and had entered into possession and made improvements
thereon.
It was said, in Nicoll v. Ogden et al. supra, that, in order to
entitle the widow to dower, the husband, at some time during
coverture, must have been seized of an equitable estate in the
property — that is, an equitable title to this property must
have presently existed in him, which title, had he died at the
1873.] Yolk et al. v. Roche. 297
Syllabus.
moment, would have descended to his heirs at law as real
estate, instead of going to his personal representatives as a
chattel interest, or chose in action.
The deed of Butler to Nicoll and Bushnell was not recorded
until January 18, 1843, and of the existence of which Clark
had no notice when he bought. Long prior to that, Butler
had conveyed to Clark, and he in the actual possession. This
was notice to Nicoll and Bushnell, and bound them as fully
as if his contract of purchase had been put on record. The
equitable estate was then in Clark, consequently the com-
plainant can have no claim to dower, her husband not having
been seized of a legal or equitable estate in the premises, the
equity being with Clark, under whom appellees claim, who
afterwards acquired the legal title by proper conveyance.
It is unnecessary to enter into an elaborate discussion of
the principles governing the case. They are familiar to all.
We concur with the circuit court in dismissing the bill, and
affirm the decree.
Decree affirmed.
Leonard W. Volk et al.
V.
James A. Eoche.
1. Instruction — when accuracy and perspicuity required. Where
there is a conflict of evidence, or where the evidence leaves it doubtful
which way the jury should find, the instructions should not only be accu-
rate, but also clear and perspicuous. They should aid the jury in arri-
ving at a correct conclusion, and should not be calculated to mislead or
leave them in doubt as to the law arising upon the evidence.
2. Same — misleading. In a suit upon a note with a condition that the
same was subject to all payments made to the payee, as a partner of the
maker, and not charged upon the books of the firm, where such payments
were pleaded, and also a plea of set-off, an instruction that, if the matters
of defense under the condition in the note are not proved, the jury should
298 Yolk et al. v. Eoche. [Sept. T.
Opinion of the Court.
find for the plaintiff, is calculated to mislead, as ignoring the defense and
proof under the plea of set-off.
3. Partnership — right to charge for debts paid after dissolution. An
authority from one partner to a co-partner, to pay debts for him, if given
before the dissolution, is as good as if given after, and the partner so pay-
ing will have a right of action to recover for the same in either case,
whether the same has been charged on the books of the firm or not.
Appeal from the Superior Court of Cook county ; the Hon.
Charles H. Wood, Judge, presiding.
This was an action of assumpsit, by James A. Roche
against Leonard W. Yolk, John Feeny and Edward Burk-
hardt, upon a promissory note. The opinion of the court
contains a statement of the points involved. The defendants
appealed.
Messrs. King, Scott & Payson, for the appellants.
Messrs. Snowhook & Gray, for the appellee.
Mr. Justice Walker delivered the opinion of the Court:
Appellants gave to appellee a note for $1250, due at six
months, with 10 per cent interest. But the note was subject
to a condition, that any and all such sums of money as had
been received by appellee, as a co-partner with appellants,
and not charged to appellee on the books of the co-partner-
ship previously existing between the payee and makers, with
interest at the rate of 10 per cent, should be deducted from
the note. Suit was brought by the payee on this note, against
the makers. They filed the plea of the general issue, and a plea
that plaintiff had received large sums of money, as co-partner
of defendants, which were not charged on the partnership
books. Also a plea of set-off, for money paid by the makers
for the use of the payee. A trial was had, and a verdict was
found for plaintiff, and, after overruling a motion for a new
trial, the court rendered judgment on the verdict.
The evidence was conflicting, and appellants insist that the
1873.] Volk et al. v. Roche. 299
Opinion of the Court.
instructions were erroneous, and misled the jury. Where
there is a conflict of evidence, or where it leaves it doubtful
which way the jury should find, it is important that the in-
structions should be not only accurate, but clear and perspic-
uous. They should aid the jury in arriving at a correct
conclusion, and should not mislead or leave them even in
doubt as to the law arising on the evidence before them. In
this case, we find that the first of appellee's instructions is
erroneous. It informs the jury that, if the matters of defense
under the condition in the note are not proved, then they
should find for the plaintiff. This ignores the defense inter-
posed by the plea of set-off, when there was evidence tending
to prove it. This was well calculated to mislead the jury,
and should not have been given. The third of plaintiff's
instructions is vague, and well calculated to mislead. It
informs the jury that, if the plaintiff did not instruct or
empower defendants to pay debts for him, and charge the
same on the account books of the company, after the disso-
lution, then the jury should find for the plaintiff on that
point. If the authority was given before the dissolution, the
right of recovery would be the same as if given after the
dissolution. If the instruction refers to authority to make
the charge, and not the payment, then it was wrong, as it
could not matter whether the charge was made before or after
the dissolution, or not at all, if authority to pay such debts
was given.
In a case like the present, it is no answer, to say that other
instructions stated the law correctly, as we are unable to know
whether the jury acted upon the correct or erroneous instruc-
tions. The instruction given by the court, at the request of
the jury, was too indefinite. It informs the jury that, "the
question simply is, whether the defendants have proven,
affirmatively, a claim against Roche, and in their favor, for
which they could recover against Roche, in case they were
plaintiffs," then such claim should be allowed as a set-off; and
that the principles that should govern in determining that
300 Bobbins v. Crandall. [Sept. T.
Opinion of the Court.
question, had been given in other instructions. Whether
they understood that the principles were announced in the
first and third of plaintiff's instructions, or in other instruc-
tions, not erroneous, we can not know. This instruction left
them to choose.
We perceive no other error in giving or modifying plain-
tiff's instructions, but, for the errors indicated, the judgment
is reversed and the cause remanded.
Judgment reversed.
Adam B. Robbins
V.
Kate L. Ceandall.
Sale — party purchasing, alone liable. Where goods are sold to a firm,
whose notes are given for the price, and the firm purchasing buys for
another firm, composed, in part, of the same members, and the latter firm
pays the first for the same, it will not be liable to the original vendor for
the price.
Appeal from the Circuit Court of Grundy county; the
Hon. Josiah McRoberts, Judge, presiding.
Mr. E. Sanford, for the appellant.
Messrs. Breckenridge & Garnsey, for the appellee.
Mr. Justice Scott delivered the opinion of the Court :
This suit was originally commenced in the county court,
by appellant, against Harvey R. Green, Frederick Green and
appellee, as a firm doing business under the name of Green &
Co. Their place of business was known as the "Mazon
Store," over the river from Morris. There was also a firm in
Morris known as H. R. Green & Son, composed of Harvey R.
and Frederick Green, being the same persons who were part-
1873.] Bobbins v. Crakdall. 301
Opinion of the Court.
ners with appellee in the "Mazon Store." The action is to
recover for a bill of merchandise sold and delivered by appel-
lant; and the only question in the case is, to which firm the
goods were sold.
We hold, with the circuit court, that the evidence shows
most conclusively the goods were sold to the house in Morris,
although the goods actually went to the "Mazon Store," to
the benefit of Green & Co. The evidence is wholly incon-
sistent with any other theory.
There is some apparent conflict in the testimony, but it is
more apparent than real. The proof shows the firm of Green
& Co. made all their purchases, except a few articles of trifling
value, from the house of H. R. Green & Son. The true con-
struction of the evidence is, the goods were in fact purchased
by H. R. Green & Son, for the firm of Green & Co. This
fact tends to elucidate the action of the parties more than
any other fact in the case. It affords a satisfactory explana-
tion of the conduct of Harvey R. Green, in sending for
George Green, who was a clerk in the "Mazon Store," to
select the bill of goods in question. He knew what goods
were wanted, and when the selection was made, the firm of
H. R. Green & Son made the purchase. There is nothing in
all the testimony that militates against this view of the case.
Even the evidence offered on the part of appellant is entirely
consistent with it.
The order, when received by appellant's agent, was sent
forward in the name of H. R. Green & Son. The goods were
consigned to that firm, and, when received, they executed
their note for the same. A mistake occurred in the date of
the first note, and it was subsequently corrected in the name
of H. R. Green & Son.
There was no fraud practiced on the agent of appellant.
He knew perfectly well the firm he was dealing with. The
goods were sold upon his own solicitation. It is quite ap-
parent, if the firm of H. R. Green & Son had not become
302 Badger v. Batavia Paper Mfg. Co. et at [Sept. T.
Svllabus.
bankrupt, there never would have been any controversy the
goods were sold to that firm.
It seems to us, the equities of the case are all with appel-
lee. The proof is uncontradicted, the firm of Green & Co.
purchased these goods of H. R. Green & Son, and paid that
firm for them, and it would be against good conscience to
require appellee to pay for them a second time.
The circuit court decided correctly in reversing the judg-
ment of the county court, and its judgment is accordingly
affirmed.
Judgment affirmed.
Alpheus Badger
v.
The Batavia Paper Manufacturing Company et al.
1. Trover — what is a conversion. Where the assignee of a chattel
mortgage upon a rotary boiler, after the maturity of the debt, attempted
to reduce the same to possession, in accordance with the provisions of the
mortgage, and was forbidden to do so, by the party in possession, who had
succeeded to the title to the real estate upon which the boiler was situated :
Held, that this would constitute a conversion of the boiler, so as to enable
the assignee of the mortgage to maintain trover, without first making a
formal demand for it.
2. Instruction — should not be given on a theory not supported by any
evidence. In trover, by the assignee of a chattel mortgage, for the conver-
sion of the property by a third party, who showed no interest whatever in
the same, it was held, error to modify plaintiff's instructions, so as to make
the validity of the mortgage in the hands of the plaintiff depend upon
whether the defendant had, or not, any right in the mortgaged property,
as introducing an element in the case not belonging to it, and therefore
calculated to mislead the jury.
3. Corporation— power to give chattel mortgage. Where the charter of
a private corporation granted to the company "all the powers incident
and useful to corporations :" Held, that the language was broad enough
to include the power to make a chattel mortgage on property purchased
by it, for the price.
1873.] Badger v. Batavia Paper Mfg. Co. et al. 303
Opinion of the Court.
4. Chattel mortgage — as to whom valid, without reference to acknowl-
edgment, etc. A chattel mortgage, being good as between the parties to it,
without acknowledgment, etc., will be equally valid against all persons
who are neither purchasers of the mortgaged chattels nor creditors of
the mortgagor, and have no interest in the property.
5. Fixture — property reserved in conveyance, is not. Where a party
takes a conveyance for real estate, which contains an express exception
of a steam boiler from its operation, he can not claim the boiler as a fix-
ture to the real estate, and that it is therefore a part of the realty.
Appeal from the Circuit Court of Kane county; the Hon.
Sixvanus Wilcox, Judge, presiding.
This was an action of trover, by Alpheus Badger against
The Batavia Paper Manufacturing Company and William M.
Van Nortwick, to recover for the conversion of a rotary boiler
and attachments. A trial was had, resulting in a judgment
in favor of the defendants, from which the plaintiff appealed.
Mr. Eugene Canfield, for the appellant.
Mr. A. M. Herrington, for the appellees.
Mr. Justice Sheedon delivered the opinion of the Court:
This was an action of trover, for the alleged conversion of
a rotary boiler and attachments.
The Chicago Fibre and Paper Company, on September 1,
1859, bought of the Eagle Works Manufacturing Company
the property, and gave a chattel mortgage thereon, to secure
the payment of its note of that date for the purchase price.
The boiler was set up at the works of the first named com-
pany, at Batavia, in Kane county.
The boiler was 25 feet long, 7 feet in diameter, weighing
about 10,000 pounds. It had to be placed outside of the
building then at the works, and a building was erected over
it, 35 feet by 15 feet, on the ground, and about 15 feet high.
In order to remove the boiler, after the mortgage money be-
came due, nearly the entire west end of this building over the
boiler would have had to be removed.
304 Badger v. Batavia Paper Mfg. Co. et al. [Sept. T.
Opinion of the Court.
The mortgage contained a clause that, in default of pay-
ment, etc., the mortgagee might take possession, "and for
that purpose, may pursue the same (the mortgaged property)
or any part thereof, wherever it ma)7 be found, and also may
enter any of the premises of said party of the first part, with
or without force or process of law, and take possession of and
remove and sell and dispose of the same." The note was
assigned to Badger, the plaintiff. Subsequently, and before
the maturity of the note, The Chicago Fibre and Paper Com-
pany became and was declared bankrupt, and the premises
upon which the boiler was, were, by the assignee in bankruptcy,
sold and conveyed by deed to the Batavia Paper Manufactur-
ing Company, one of the defendants, with the following ex-
press exception in the sale and deed: "Except one rotary
boiler, 25 feet long and 7 feet in diameter, which was fur-
nished by P. W. Gates & Co. since the execution of the trust
deed in said petition and order mentioned, and which is in-
cumbered by a chattel mortgage to secure the purchase money
thereof, which has been assigned to Alpheus C. Badger." It
was in evidence that the Eagle Works Manufacturing Com-
pany was known and called by the name of P. W. Gates &
Co/
There were a verdict and judgment against the plaintiff in
the court below, and he appealed, and assigns for error the
giving and refusing of instructions.
In regard to the conversion, the evidence on the part of the
plaintiff was, that, on the maturity of the mortgage, prepar-
ations were made by him to remove the boiler; that his
agents went upon the premises and attempted to remove the
boiler, and were forbidden to do so, by the defendants, until
Badger should first pay the expenses they claimed had been
incurred in fitting up another room for a certain purpose,
which room they were obliged to fit up, on account of the
boiler occupying the room they would otherwise have used
for that purpose.
1873.] Badger v. Batavia Paper Mfg. Co. et al. 305
Opinion of the Court.
The testimony on the part of the defendants was in contra-
diction of the forbidding of the removal of the boiler, and
that, instead thereof, an arrangement was made with plain-
tiff's agent, that the boiler might remain where it then was,
without any expense for storage, to be removed upon reason-
able notice, when defendants wanted the room.
A portion of one of the instructions given for the defend-
ants was as follows: "In this action, in any event, before the
plaintiff can recover, he must affirmatively prove that he
made, prior to the commencement of this suit, a demand of
the defendants for the boiler in question, and that they re-
fused to deliver or let him get the same upon such demand."
No demand was necessary, under the circumstances detailed
by witnesses for the plaintiff. If, upon attempting to remove
the boiler, they were forbidden to do so, as testified to, that
would constitute a conversion of the property, without making
a demand of it.
The jury were well warranted in finding, from the evidence,
that there was no formal demand made for the boiler. The
evidence was very conflicting upon the point, of there having
been any interference with the removal of the boiler, and the
instruction opened an easy way to the jury to avoid the
troublesome consideration of this conflicting testimony,
wherein lay all the merits of the case, by resting their verdict
upon the ground that no formal demand of the property had
been made, the necessity of which was so prominently set
forth by the instruction. The instruction was well calculated
to injuriously affect the case of the plaintiff, and should not
have been given.
Instructions asked by plaintiff were modified by the court.
As modified, they differed from the instructions, as asked, in
making the validity of the mortgage in the hands of the
plaintiff, against the defendants, depend upon whether the
defendants had or not any right in the property.
There was no pretense, on the part of the defendants, that
they had anv claim of interest whatever in the property,
20— 70th III.
306 Badger v. Batavia Paper Mfg. Co. et al. [Sept. T.
Opinion of the Court.
further than as a fixture, and there was not a particle of evi-
dence upon the point. The modifying of the instructions in
the respect named was introducing into the case an element
which did not belong to it, for the consideration of the jury,
and was but calculated to distract their attention and mislead
them, and was improper.
It is objected by appellees' counsel, that the Chicago Fibre
and Paper Company had no power to make a chattel mort-
gage. Their charter grants to the company "all the powers
incident, necessary and useful to corporations." We think
this language broad enough to include the power to make the
chattel mortgage in question.
It is also objected, that the corporate existence of the Eagle
Works Manufacturing Company should have been shown.
Without acknowledging the force of the objection, it was not
necessary to make the proof in this case, as the charter of the
company is made a public act. Priv. Laws of 1861, p. 467.
It is also insisted, that the chattel mortgage is void, because
not acknowledged before a justice of the peace of the proper
county, and a memorandum of the same entered on his docket,
as required by the statute.
The mortgage was good, between the parties, without a
compliance with the requirements of the Chattel Mortgage
Act.
The defendants do not appear to have been either purchas-
ers, incumbrancers or creditors, or to have had any interest
in the property. Any mortgage, good between the original
parties, is good as to the defendants.
It is claimed, too, that the boiler was a fixture, and there-
fore a part of the freehold that was conveyed by the assignee
in bankruptcy to the Batavia Manufacturing Company. It
is impossible to maintain any such claim, in view of the ex-
press exception, in the deed, of the boiler, from its operation.
For the error above indicated, in the giving and modifying
of instructions, the judgment will be reversed and the cause
e * Judgment reversed.
1873.] Dwyer v. Duquid et at. 307
Statement of the case.
Maurice Dwyer
V.
James Duquid et dl.
1. Sale — time of payment. In a sale of property, where nothing is
said as to when payment shall be made, the law implies that it shall be
made on delivery.
2. Action — to recover price of goods on partial delivery. Where personal
property is sold and delivered, there being no time fixed for payment, and
the purchaser refuses to pay for the same on demand, he will be in default,
and the vendor, having complied with his part of the contract, may treat
the contract as abandoned, and recover in assumpsit, under the common
counts, for the price of the property delivered, according to the contract.
Appeal from the Superior Court of Cook county ; the
Hon. Thomas F. Tipton, Judge, presiding.
This was an action of assumpsit, brought by James Duquid
and James Crichton against Maurice Dwyer, for the price of
coal sold and delivered under the following special contract:
"Chicago, July 9, 1872.
Terms of contract between Mr. Dwyer and Duquid & Crichton :
We will commence to deliver to Mr. Dwyer, Lackawana
coal at $7.50 per ton, in yard, and if coal advances, Mr.
Dwyer to have one-half the advance, and we the other half,
with the promise that Mr. Dwyer fills all orders before any or
each advance, at the figures paid before the advance ; also to
supply Mr. Dwyer with all the coal he desires, to supply his
trade, until May 1st, 1873.
Duquid & Cpichton."
The case was tried by the court without a jury. The
amount of coal delivered was not disputed, but the defense
was, that the plaintiffs had violated their agreement by not
delivering the defendant more coal, for which damages were
claimed. The court below found for the plaintiffs, for $424.86,
which was $283 less than the sum claimed.
308 Dwyer v. Duquid et al. [Sept. T.
Opinion of the Court.
Mr. T. A. Moran, for the appellant.
Messrs. Nicholes, McKindley & Morrison, for the appel-
lees.
Mr. Justice Scholfield delivered the opinion of the
Court :
By the terms of the contract between the parties in this
case, nothing was said about the time when payment was to
be made. In such cases, the law implies that payment is to
be made on delivery of the property. Smith v. Gillett, 50 111.
290; Metz v. Albrecht, 52 id. 492. If, therefore, appellant
refused to pay for the coal after delivery, and when payment
was demanded by appellees, he was in default, and if appel-
lees, prior to appellant's default, had complied with their
part of the contract, they were authorized to treat the con-
tract as abandoned, and might recover in assumpsit, on the
common counts, for the amount of coal they had delivered,
according to the contract price. Evans v. Chicago and Rock
Island Railroad Company, 26 111. 189.
The principal controversy turns on the preponderance of
evidence, and, as is quite frequent in such cases, each party
asserts, with great apparent confidence, that the preponder-
ance is with him. After carefully examining the evidence in
the record, we are not disposed to disturb the finding of the
court below. The evidence is conflictiDg, and so nearly bal-
anced that we do not think the ends of justice require that
we should remand the case for a new trial.
The judgment of the court below is affirmed.
Judgment affirmed.
1873.] Hoyt v. Shipherd et al. 309
Syllabus.
William H. Hoyt
V.
Jacob K>. Shipheed et al.
1. Secondary evidence — contract from report of case. It is error to
allow in evidence what purports to be a contract of sale, from a volume
of the reports of this court, against objection, as it is not the best evidence
of its terms. If the original was lost or destroyed, on proof of that fact,
secondary evidence of its contents might be introduced. In such a case,
if the contract was correctly copied into the bill of exceptions, this would
be competent evidence of its terms and contents, but without proof that
the contract set out in the opinion of this court as published, was the
same as that copied in the bill of exceptions, the report of the case is
not admissible.
2. Contract — agent's right to commissions for selling land. Where real
estate agents were authorized to sell real estate for $48,000, one-third cash
in hand, and the balance to remain in mortgage one and two years, with
interest at eight per cent, for which the agents were to receive a commis-
sion of two and a half per cent, and the agents sold the property for the
required price, one-third to be paid in twenty days, without interest,
the balance to be secured by a deed of trust and note, and the purchaser
afterwards refused to complete the purchase, for certain objections to the
title : Held, that the sale not being such as the agents were authorized
to make, in the absence of proof of a ratification, they were not entitled to
recover the commissions agreed upon.
3. Agency — right to recover compensation from principal. In order to
entitle an agent to recover compensation from his principal, for services
rendered in respect to the subject matter of the agency, he must act strictly
according to the authority conferred upon him.
4. Where the owner of land authorized real estate agents to sell lands
purchased by him, and informed them that he had no deed for the same,
but held it under a contract, and the agents made a contract for the sale
of the land, which the purchaser refused to complete, because the vendor
had only a contract of purchase, there being no other defect in the title,
it was held, that the agents were not entitled to recover the agreed com-
missions on the sale, as it proved abortive without any fault on the part
of their principal.
Appeal from the Superior Court of Cook County ; the
Hon. Joseph E. Gary, Judge, presiding.
310 Hoyt v. Shipherd et al. [Sept. T.
Opinion of the Court.
This was an action of assumpsit, by Jacob R. Shipherd and
Benjamin J. Sweet, for the use of Jacob R. Shipherd, against
William H. Hoyt. The opinion of the court gives the facts
of the case in substance. The plaintiffs recovered judgment
for $1200 and costs, in the court below, and the defendant
appealed.
Messrs. Lyman & Jackson, for the appellant.
Mr. T. Lyle Dickey, for the appellees.
Mr. Justice Craig delivered the opinion of the Court :
This was an action of assumpsit, brought by appellees,
against appellant, in the Superior Court of Cook county, to
recover commissions on an alleged sale of real estate by appel-
lees for appellant.
On the trial of the cause, the jury returned a verdict for
appellees for $1200. A motion for a new trial was over-
ruled, and judgment rendered upon the verdict.
Appellant relies upon two points to reverse the judgment:
First. The court erred in permitting appellees to read to the
jury from the opinion of the court in Vol. 55 of Illinois
Reports, on page 476, what purported to be a contract of sale
from Hoyt, by Shipherd, Sweet & Co., agents, to Underwood.
Second. The verdict is not sustained by the evidence.
It was clearly error for appellees to read from the volume
of reports what purports to be a contract, against the objec-
tion of appellant. This was not the best evidence. If the
contract was lost or destroyed, it was proper, upon proving
that fact, to introduce secondary evidence of its contents.
If the contract was correctly transcribed in the bill of excep-
tions, this would be competent evidence of its terms and
contents. It nowhere appears that the contract, as read from
the opinion, was the same as that inserted in the bill of
exceptions. But even admitting the contract was properly
in evidence, we do not think the evidence justified a recovery
1873.] Hoyt v. Shipheed et al 311
Opinion of the Court.
for appellees, even on their own theory of the terms of the
authority given them to sell by appellant.
Shipherd, one of the appellees, testifies that appellant gave
their firm authority in writing to make the sale. The instru-
ment authorized the property to be sold for $48,000, one-
third cash, the balance to remain on mortgage for one and
two years, with interest at eight per cent; sale to be made
subject to a commission of two and a half per cent to Ship-
herd, Sweet & Co.
The contract of sale appellees claim was made, is substan-
tially as follows : " Sale to Underwood, purchase price of
land |48,000; terms, $16,000 to be paid in twenty days
from date, balance in one and two years ; warranty deed to
be given if first payment is made as above, remainder to be
secured by a trust deed and note. Failure or refusal to make
the first payment within the time stated, to make the contract
null and void. Money to be refunded in case of valid objec-
tion to the title, otherwise to be retained as liquidated dam-
ages, if the payment is not made; time declared to be of the
essence of the agreement. $600 acknowledged to be received
on said first payment, $600 more to be paid on or before the
24th instant. Dated Chicago, 22d February, A. D. 1869.
"[Signed] W. H. Hoyt,
" By Shipherd, Sweet & Co., Agents."
According to Shipherd's own evidence, one-third of the
purchase money, under his authority to sell, was to be paid
cash down, and by the contract he made he gave twenty days
for the purchaser to make the payment. ISTo provision is
made for interest on the deferred payments. If the first pay-
ment is not made in the time limited, the contract is to be
void. The $600 was to be refunded in case of valid objec-
tion to the title, otherwise to remain as liquidated damages
if the payment due in twenty days is not paid. Appellees
had no authority to sell on these terms, and the attempted
sale having been made without authority, was not binding.
The rule is well settled, that an agent can not go beyond
312 Hoyt v. Shipheed et ah [Sept. T.
Opinion of the Court.
his authority, and he must act strictly according to the power
conferred on him. Thornton v.Boyden, 31 111. 210. See also
Baxter v. Lamont, 60 111. 237.
It would be manifestly unjust to permit appellees to recover
commissions on a sale unauthorized, and from which appel-
lant has derived no benefit.
It is, however, insisted by appellees that appellant ratified
the contract after it was made. Shipherd testifies that appel-
lant ratified the contract. This, appellant denies. Appellant
seems to be corroborated on this point by Shipherd's own
evidence. He says he sent a receipt to appellant to be signed,
for the $1200 he had received. This was for the very pur-
pose of obtaining a ratification of the contract, but appellant
refused to sign it.
There can be no pretense, from the evidence in this case,
that appellant has acted unfairly. Boker, who was in some
way interested with appellees in commissions on such lands
as they should sell, called on appellant, and solicited the sale
of this property. Appellant informed him he had just pur-
chased it, and held it by contract, and did not know how the
title stood. Boker, acting for appellees, still urged that the
land should be placed in the hands of appellees for sale. This
notice in regard to the title, to Boker, was notice to appellees,
for whom he was acting.
Appellees now claim the sale they made to Underwood
was not consummated, for the reason the title was defective,
and Underwood refused to take the property on that ground.
This may all be true, and still no blame can be imputed to ap-
pellant. He notified appellees, before they undertook the sale,
that he held title by contract, and as no other defect appears,
from the evidence, to the title, they were in no way deceived.
Appellees, with full knowledge of appellant's title, under-
took to sell. Their commissions depended on a sale. No
sale has been effected, and we do not think appellees entitled
to commissions.
The judgment of the circuit court will be reversed.
Judgment reversed.
1873.] Snowell et al v. Moss. 313
Statement of the case.
John Snowell et al.
v.
Joseph E. Moss.
Amendment — of complaint in forcible detainer. It is not error to per-
mit an amendment of a complaint in forcible detainer, on appeal, after
the submission of the cause to the court, where the amendment is not
calculated to surprise the defendant.
Appeal from the Superior Court of Cook county ; the Hon.
William A. Porter, Judge, presiding.
This was an action of forcible detainer, brought by Joseph
E. Moss, against John Snowell and Henry Snowell. The
following is a copy of the complaint:
"State of Illinois,
"Cook County.
" Joseph E. Moss complains, on oath, to N. B. Boyden,
Esq., a justice of the peace in and for said county of
Cook, that, on or about the 20th day of October, 1872, the
following described premises, in the county of Cook, and
State of Illinois, to-wit: (description here follows) were let
by the said Joseph E. Moss to John Snowell and Henry
Snowell, for the term of one year, which term has elapsed
and determined, and a demand, in writing, by said Joseph E.
Moss, has been duly served upon the said John Snowell and
Henry Snowell, by delivering a copy thereof, on the 28th
day of October, 1872, to said John Snowell and Henry Snow-
ell, and the said Joseph E. Moss is now entitled to the pos-
session of said premises; and that the said John Snowell and
Henry Snowell wilfully, and without force, hold over such
possession after the determination of the time for which said
premises were let to the said John Snowell and Henry Snow-
ell, and after such notice and demand; wherefore, said com-
plainant prays a summons, in pursuance of the statute.
"Joseph E. Moss."
5'Jss.
314 Snowell et al. v. Moss. [Sept. T.
Opinion of the Court.
The Superior Court, on appeal, allowed the plaintiff to
amend the complaint, by changing the date of the leasing to
1871 instead of 1872, and so as to show that the demand
mentioned was for the possession of the premises.
Messrs. King, Scott & Payson, for the appellants.
Mr. Nelson Monroe, for the appellee.
Mr. Chief Justice Breese delivered the opinion of the
Court :
This was an action of forcible detainer, taken by appeal
from a justice of the peace to the Superior Court of Cook
county, and there tried by the court without a jury, and judg-
ment of restitution.
It is objected, the court permitted an amendment of the
complaint after the cause was submitted to the court, and
before trial. The amendment made was not calculated to
surprise the opposite party, but was in furtherance of justice,
and properly allowed.
The real question in the case is, did appellants promise,
unconditionally, to pay rent for one year, to appellee, for
these four or five feet of ground? This was a point strongly
contested. The parties themselves were sworn, and there
was conflict in their statements, which the court reconciled
the best way possible, and we can not say improperly.
We can not disturb the finding, and affirm the judgment.
Judgment affirmed.
1873.] Boggs v. Willard et al. 315
Opinion of the Court.
GrEOKGE BoGGS
v.
Elisha W. Willakd et al.
1. Kemoval of cause — to Federal courts. "Where a decree is reversed
in this court, and the cause remanded with specific directions to the
court below to dismiss the bill, this is a final disposition of the cause, and
it can not subsequently be removed to the Federal Court, under the act of
Congress of March 2, 1869.
2. Reversal — with specific directions. Where a case has been tried in
this court upon its merits, and remanded with specific directions to dis-
miss the suit, or to do some other act, the court below has no power to do
anything but to carry out the specific directions.
3. Error — a decision in conformity to mandate of this court, can not be
assigned as error. Where a cause is reversed in this court, and remanded
with directions to do a certain act, which is done, the action of the court
below can not be assigned for error. The decision can only be reviewed
by a rehearing in this court.
Writ of Error to the Superior Court of Cook county.
Messrs. Isham & Lincoln, for the plaintiff in error.
Messrs. Gotjdy & Chandler, for the defendants in error.
Mr. Justice Walker delivered the opinion of the Court :
This case was before this court at the September term, 1870,
and is reported in 56 111. 163. The facts relating to the
claims of the parties are contained in the opinion there re-
ported, to which reference is made. The decree of the court
below was then reversed, and the cause remanded with direc-
tions to dismiss complainant's bill.
When the case was re-docketed in the Superior Court,
where it had been tried, and from which the appeal had been
prosecuted, complainant filed a petition, under the acts of
Congress, to have the cause transferred to the Circuit Court
of the United States for the Northern District of Illinois,
but the court refused the motion and dismissed the bill. To
reverse that decree, complainant prosecutes error. The grounds
316 Boggs v. Willard et al. [Sept. T.
Opinion of the Court.
of reversal urged are, that the court below should have granted
the petition, and transferred the cause, and that the bill should
not have been dismissed.
Under the first assignment of errors, it is contended that
the case comes within the law of Congress, as the order of
dismissal had not been entered. The proceeding seems to be
based on the act of the 2d of March, 1867. (Sess. Laws, p.
196.) It provides that, where a suit is pending in a State
court, in which there is a controversy between a citizen of
the State in which the suit is brought, and a citizen of another
State, and the matter in dispute exceeds $500, exclusive of
costs, the non-resident citizen may file the required petition,
with the proper affidavit, and offer good and sufficient secu-
rity for the prosecution of the suit, etc., at any time before
the final hearing or trial of the suit, and have it transferred
to the next term of the Circuit Court of the United States,
and the State court is prohibited from proceediug further
with the case. Was this suit pending, and had there been no
final hearing or trial when the application was made, within
the meaning of the law?
In numerous cases, it has been held, in this State, that,
where a case has been tried in this court, and remanded with
specific directions to dismiss the bill, or do some other act,
the court below has no power to do any thing but carry out
the specific directions. Chickering v. Failes, 29 111. 294; Win-
chester v. Grosvenor, 48 111. 515; Hollowbush v. McConnel, 12
111. 203. The statute (R. S. 1845, p. 420,) empowers this court
to give final judgment and issue execution, or remand the
cause that execution may issue, or that other proceedings
may be had thereon. Had we, in the case, when it was be-
fore us, rendered a final decree dismissing the bill, no one
would have claimed that the suit was pending thereafter, or
that there had not been a final hearing or trial. And why?
Because this court had considered the evidence as applied to
the pleadings, and had fully determined the rights of the par-
ties as presented by the case. And in what does the decree
1873.] Boggs v. Willard. et al. 317
Opinion of the Court.
rendered in this court differ from a decree of dismissal?
We, after fully considering the pleadings and evidence,
decided that the complainant had not shown a right to the
relief sought, and that the court below erred in not dismiss-
ing the bill, and then reversed the decree, and remanded the
cause for further proceedings in conformity with the opinion.
Under such specific directions, the court below could only
act in conformity with the opinion, and dismiss the bill.
All the questions had been finally heard, tried and decided on
the appeal in this court. If the decree of this court did not
finally determine the case and all of its parts, it is impossible
for us to comprehend how a case can be finally heard and
tried. To maintain this writ, or to permit other and further
proceedings than those directed by this court, would be to
hold that controversies could never be ended by judicial sen-
tence or decree. The cause, then, having been finally heard
and tried, and only remanded that the court below might dis-
miss the bill, and issue execution for costs, from that court,
instead of this, we have no hesitation in saying that the
court below could not have done otherwise than deny the
petition and dismiss the bill.
As to the second assignment of error, it is only necessary
to say, that the court below conformed its action strictly to
the mandate of this court, and if its action was erroneous, it
was because we had erred in deciding the case and finally
determining the rights of the parties. It is, in effect, assign-
ing an error on the decision of this court. This can not be
done, so as to reach a reconsideration of the case as formerly
presented to this court. That can only be done on a rehear-
ing, granted on petition, or on the spontaneous action of the
court. But the grounds upon which the case was decided by
us, we regard as the settled law of this court. It was an-
nounced in Mixer v. Sibley, 53 111. 77, which was finally
decided on a rehearing, and has been followed in other cases.
The decree of the' court below, dismissing the bill, is
Decree affirmed.
318 Murray et al. v. Haverty et al. [Sept. T.
Opinion of the Court.
John Murray et al.
V.
Thomas Haverty et al,
1. Variance — 'between proof and plea of license. In trespass by several
tenants in common of land, a plea that the defendants entered, etc., under
the license of the plaintiffs, is not sustained by proof of a license from but
one of the tenants in common.
2. Tenants in common — power of one to convey, etc. Tenants in com-
mon are seized of each and every part of the estate, but it is not in the
power of one to convey the whole of the estate, or the whole of a distinct
portion, or to give a valid release for injuries done thereto, or to give a
license to do any act which will work a permanent injury to the inherit-
ance, or lessen the value of the estate.
3. Error will not always reverse. Although there may be trivial errors
in some of the instructions given, a verdict will not be set aside which
manifestly does justice between the parties.
Appeal from the Circuit Court of La Salle county; the
Hon. Edwin S. Leland, Judge, presiding.
This was an action of trespass, by Thomas Haverty and a
number of others against the appellants, for breaking and
entering the plaintiffs' close, etc. A trial was had, resulting
in a verdict of $1100 in favor of the plaintiffs, upon which
the court rendered judgment, refusing defendants' motion for
a new trial. The essential facts of the case appear in the
opinion of the court.
Messrs. Eldridge & Lewis, for the appellants.
Messrs. Dickey, Boyle & Eicholson, for the appellees.
Mr. Justice Scott delivered the opinion of the Court :
The declaration in this case is in trespass, and contains
three counts. The first is for breaking the close, digging and
carrying away coal; the second is for stripping and uncover-
ing coal in the mines on the premises, whereby the same
1873.] Murray et al. v. Haverty et al. 319
Opinion of the Court.
were damaged, and the third is a count in trespass de bonis
asportatis. Defendants pleaded, first, not guilty, as to the
whole declaration; second, liberum tenementum, as to the first
and second counts, and third, a license from all the plaintiffs to
do the acts complained of. Replications were filed to all
these pleas, and upon the issues joined thereon a trial was
had.
No evidence whatever was offered under the plea of liberum
tenementum, nor was there any offered by plaintiffs that would
authorize a recovery on the third count, and it would seem
the trial must have been had on the issues joined on the first
and third pleas.
It is not controverted defendants dug and removed large
quantities of coal from the premises described in the declara-
tion, and hence the principal question is, whether they can
justify under the license offered in evidence.
The land upon which the alleged trespasses were commit-
ted was owned, at the time, by tenants in common. It was
subsequently divided, and the east half set off to plaintiffs,
for whose use this suit was brought. Prior to the entry of
defendants upon the premises, they had entered into an agree-
ment with Peter Howard, who was a tenant in common with
plaintiffs, by which they obtained the privilege to enter and
construct a drain across the premises, but below the vein of
coal. It was to be for their own benefit, and for the privilege
secured they were to pay $200.
The construction of the drain would necessarily require the
excavation and removal of large quantities of coal, for which
they agreed to pay at the rate of two cents per bushel.
It is insisted, this license is a bar to an action of trespass
for anything done by defendants in the execution of the con-
tract.
One difficulty that presents itself is, the proof does not
sustain the plea. It is. averred defendants entered under the
license of the plaintiffs, and issue was joined thereon. The
evidence shows the license was obtained from but one of the
320 Murray et ah v. Haverty et ah [Sept. T.
Opinion of the Court.
tenants in common. Hence, the license proven is not as
broad as that averred in the pleadings. There is, therefore,
no evidence that directly sustains the issue made.
Counsel, however, maintain that defendants can defend
against the alleged trespasses, under a license obtained from
one of the tenants in common. Waiving any technical objec-
tion that might be urged against the form of the plea, under
this view of the law, we do not think the proposition assumed
can be sustained, either upon reason or authority.
The common law doctrine is, tenants in common are seized
of each and every part of the estate, but it is not in the power
of one to convey the whole of the estate, or the whole of a
distinct portion, or give a valid release for injuries done
thereto. It has most generally been ruled that, as against the
other co-tenants, such a deed is inoperative and void. Mar-
shall v. Trumbull, 28 Conn. 183; Hutchinson v. Chorr, 39
Maine, 513; 4 Kent's Com. 368*.
No principle is better settled, than that one tenant in com-
mon can not lawfully commit waste or destroy the common
property, or do any act that will work a permanent injury to
the inheritance. Our statute has authorized one tenant to
maintain trespass or trover against his co-tenant, who shall
take away, destroy, lessen in value or otherwise injure
the common property. Mining coal or excavating and re-
moving earth, would tend to injure, destroy and lessen in
value the estate. Notwithstanding the fact, in contemplation
of law, tenants in common are all seized of each and every
part of the estate, still, neither one is permitted with impu-
nity to do acts deemed prejudicial or destructive of the inter-
ests of the other co-tenants. If a tenant in common can not
himself lawfully dig and remove the soil or coal or other val-
uable material beneath the surface, that would tend perma-
nently to lessen the value of the estate, how can he grant that
right to a stranger? Upon principle, the licensee can take no
better title or higher authority than the licensor himself pos-
sessed. The law would not permit Peter Howard to enter
1873.] Murray et al. v. Haverty et al. 321
Opinion of the Court.
upon the common property and remove from thence the coal
deposits, which must constitute the real value of the estate.
Hence it follows, his warrant or license to a stranger would
afford no answer to an action of trespass brought by his co-
tenants.
We have looked into the cases cited by counsel for appel-
lants, but we do not think they sustain their view of the law.
The case of Baker v. Wheeler et al. 8 Wend. 505, is most nearly
in point, but it differs so widely in its facts, it can not be
regarded as an authoritative precedent in the case at bar.
We are of opinion the evidence given on the trial does not
sustain the plea which seeks to justify the acts of trespass
under a license, and the defense necessarily fails.
It is urged, the evidence wholly fails to establish a trespass
by defendants upon the particular tract of land described in
the declaration. Without recapitulating the evidence, which
is very voluminous, it is sufficient to say, that, from a careful
consideration, we are satisfied it fully sustains the finding of
the jury. The testimony of some of the surveyors is full to
the point, and although it is conflicting, the verdict is fully
warranted by the whole evidence, both as to the fact of the
trespasses, and as to the amount of damages found. We are
unwilling to interfere with it for either cause.
No errors are perceived in the instructions that, in our
view of the law and the evidence, could have misled the jury
on the real issues involved. In the main, they are correct,
and, although some trivial errors may have intervened, they
are not of so grave a character as to require that a verdict
should be set aside which manifestly does justice between the
parties.
The judgment will be affirmed.
Judgment affirmed.
21— 70th III.
322 Champion v. Ulmer. [Sept. T.
Opinion of the Court.
Ko swell Champion
V.
Hlram C. Ulmer.
1. New trial — newly discovered evidence. Where a party has had a
trial upon issues, in the forming of -which he participated, he can not
have a new trial for newly discovered evidence, unless he can satisfacto-
rily show that such evidence is not only material to the issue, but of a
controlling and conclusive character, and that he has been guilty of no
negligence in not discovering and producing it on the trial.
2. Same — sufficiency of affidavit as to diligence. It is the rule of this
court, upon the question of diligence, that the party must negative, in his
affidavit, every circumstance from wThich negligence may be inferred.
3. Fraud and circumvention — in procuring the execution of a note. If
the execution of a promissory note is obtained through the usual device
of such men as go about the country as dealers in patent rights, with
papers so prepared as to obtain a signature thereto, when the signer has
no intention or expectation of executing a note, it will be void for the
fraud and circumvention, even though the signer is unable to explain
just how the trick was played on him.
Appeal from the Circuit Court of Whiteside county; the
Hon. William W. Heaton, Judge, presiding.
Mr. James M. Wallace, for the appellant.
Mr. Y. S. Ferguson, for the appellee.
Mr. Justice McAllister delivered the opinion of the
Court:
This was an action by appellant, to recover, as assignee
thereof, upon a promissory note claimed to have been given
by appellee, as maker. The defense was, first, that the exe-
cution of the note was obtained by fraud; second, want of
consideration, and that appellant took the note with notice.
By agreement of parties, the cause was tried by the court
without a jury. The court found the issues for the defend-
ant, and, overruling plaintiff's motion for a new trial, gave
judgment upon that finding.
1873.] Champion v. Ulmer. 323
Opinion of the Court.
Ill support of the motion for a new trial on the ground of
newly discovered evidence, the plaintiff produced his own
and the affidavit of one Brookfield, as to certain admissions
made by the defendant.
The rules which govern applications for new trials based
upon newly discovered evidence, have received their qualities
and inflexibility from the maxim, that it is for the public
good that there be an end to litigation ; and the maxim itself
is based upon the consideration that the common law regards
litigation as something which tends to the disturbance of the
public peace and quiet. From that consideration a variety
of rules have grown into established recognition. Among
these rules are all such as relate to the conclusiveness of
judgments, the merger of causes of action, etc. From the
same reasons of public policy, courts have adopted the rules
governing applications for new trials on newly discovered
evidence, and rigidly adhered to them. When a party has
had a trial upon issues, in the forming of which he partici-
pated, he can not have a new trial for newly discovered evi-
dence, unless he can satisfactorily show to the court that such
newly discovered evidence is not only material to the issue,
but of a controlling and conclusive character. If it be merely
cumulative, and not of a conclusive character, it is no ground
for a new trial; and he must likewise show that he has been
guilty of no negligence in not discovering and producing it
upon the former- trial. The relaxation of these rules would
encourage litigation, and reward ignorance and carelessness,
at the expense of the opposite party.
Such an admission as is set forth in the affidavit, would be
but cumulative evidence, and not of a conclusive character.
All that appellant stated- in his affidavit, upon the question
of diligence, is, "that, the facts hereinbefore recited have
come to the knowledge of this affiant since the trial of said
ease had at this term." This is evasive. The deponent might
have had sufficient notice or intimation of them, before or
during the trial, to have required him to bring in the wit-
324 Page et al. v. Cm., Mil. & St. P. Ry. Co. [Sept. T.
Syllabus.
ness, and yet not be guilty of perjury in making that state-
ment. It is the rule of this court, upon the question of
diligence, that the party must negative, in his affidavit, every
circumstance from which negligence may be inferred. Cro-
zier v. Cooper, 14 111. 139; Lafiin v. Herrington, 17 111. 403.
The only other question made is, that the finding of the
court is against the weight of the evidence. The testimony
of the appellee tends to establish the defense of fraud and
circumvention in obtaining the execution of the instrument.
It was done through the usual device of these men who go
about the country as dealers in patent rights or new inven-
tions, with papers so prepared as to obtain the signatures of
their victims to promissory notes, when the latter have no
intention or expectation of executing a promissory note. Our
reports abound in such cases, and they show that swindling
has been reduced to a fine art; because, in the numerous
cases that have been brought to this court, we know of none
in which the victim was able to explain just how the trick
was played upon him.
We are satisfied with the finding of the court below, and
its judgment is affirmed.
Judgment affirmed.
Orville Page et al.
Chicago, Milwaukee and St. Paul Kailway Co.
1. Eminent domain — damages to property not taken. Where a railroad
is located over a tract of land, and compensation is allowed the owner
for the land actually taken, he can not recover damages as to a small
part of the tract, not taken, if the whole is not damaged, when taken
together.
2. The jury, under the act of 1872 relating to right of way, are not
required to assess the damages to a strip of land lying within a few feet
of the right of way of a railroad, but the damages, if any, to the entire
1873.] Page et al. v. Chi., Mil. & St. P. Ey. Co. 325
Opinion of the Court.
tract, by reason of the construction and operation of the road. The effect
must be considered upon the market value of the entire tract, and not a
distinct part.
3. Same — measure of damages. The true measure of compensation for
land not taken by a railway company for a right of'way, is, the difference
between what the whole property would have sold for, unaffected by the
railroad, and what it would sell for as affected by it, if it would sell for
less. The damages must be for an actual diminution of the market value
of the land, and not speculative.
Appeal from the Circuit Court of Cook county; the Hon.
Henry Booth, Judge, presiding.
Mr. George Gardner, for the appellants.
Mr. E. Walker, for the appellee.
Mr. Justice Sheldon delivered the opinion of the Court :
This was a proceeding, by appellee, for assessment of dam-
ages for right of way over a 40-acre tract of land of appel-
lants, near Chicago. A trial was had before a jury, which
resulted in a finding for appellants for $4475, for land taken,
and no damages. From a judgment entered on the finding,
this appeal was taken by them.
Upon the trial, it was shown that the line of appellee's
road crossed that of the Atlantic and Pacific Eailroad (which
had been located along the north line of the tract), at the
north-west corner of the tract, and evidence was introduced
by the appellee, under objection, that, with the crossing at
that point, the whole 40-acre tract was worth more on account
of the location of appellee's road across it, than it would be
without the road; and this instruction was given by the court
to the jury:
"And if, in any case where land not sub-divided is inter-
sected, and a portion thereof taken by the road, it also appears,
from the evidence, that contiguous land belonging to the same
owner, and not taken, is damaged by the construction and
maintenance of the road, so that, for sub-division, or for any
326 Page et at. v. Chi., Mil. & St. P. Ry. Co. [Sept. T.
Opinion of the Court.
other use or purpose, on the whole, taking into consideration
all the effects upon the value of such contiguous land, pro-
duced by this road, it is of less value by reason of the road,
than it would have been without the road, then the jury
should find the amount of such diminution of value as it
appears from the evidence, and report the same as the com-
pensation to be paid the owner of such contiguous land so
damaged. If the value of such contiguous land is not dimin-
ished by the road, then no damages should be allowed."
Objection is taken to the admission of such testimony, and
the giving of such instruction, as being in violation of the
now existing rule under the statute of 1872, that no benefits
or advantages shall be set off against or deducted from the
compensation to be given for land taken or damaged.
The present constitution provides that " private property
shall not be taken or damaged, for public use, without just
compensation." The act of April 10, 1872 (Laws 1872, p.
402), under which this proceeding is had, declares, in the first
section, that private property shall not be taken or damaged,
for public use, without just compensation.
The form of the oath prescribed to the jury, in the eighth
section, is, to " well and truly ascertain and report just com-
pensation," etc.
Section 9 provides that the jury may go upon the premises,
hear proof, and then shall make their report so as to set forth
and show the compensation ascertained to each person thereto
entitled. * * * "Provided, that no benefits or advantages,
which may accrue to lands or property affected, shall be set
off against or deducted from such compensation, in any case."
The property in question is unimproved. It is not situated
within the city limits, nor is it held for farming purposes;
but its proximity to Chicago makes it valuable for the pur-
poses of sub-division. It is susceptible of being converted
into residence and business property, and hence its value
above that of cultivated farm lands.
1873.] Page et at. v. Chi., Mil. & St. P. Ky. Co. 327
Opinion of the Court..
The evidence shows that the appellee's road furnishes com-
munication between this property and the city — has made it
suburban property, and increased its value from $500 to
$1000 per acre. Another road had been located upon the
north line, the two roads crossing each other at the north-
west corner of the tract. Under the law of the State, all trains
on both railroads have to stop at a crossing. This affords
an opportunity for passengers to get on and oif there; and,
under the testimony, such a crossing is a great advantage to
the land around it. According to appellee's witnesses, the
location of the road was a benefit, rather than an injury, to
the appellants' property. For the land actually taken —
2 yoo acres — compensation has been given at the enhanced
valuation by reason of the railroad.
Is there anything more which should be paid for damages
to the residue of the tract?
There is no claim here for any damage thereto, except for
the depreciation of the market value of the remainder of the
tract by reason of the location of the road; but the evidence
shows that this location of the road largely increases this
market value. How, then, are appellants damaged? They
attempt to show, in proof, that a narrow strip of the land
abutting upon the road would be depreciated in value fifty
per cent, as is estimated by some of the witnesses, by reason
of the inconvenience and annoyance of the road, and claim,
in effect, that damages should be assessed therefor, consid-
ered abstractedly, excluding all yiew of the effect of the road
upon the residue of the tract. To take into consideration
such effect, it is insisted, would be to deduct benefits or ad-
vantages from the damages.
We can not yield to this view. It was not the damages to
a strip of land lying within a limited number of feet of the
road-bed, that the jury were required to assess, but the dam-
ages, if any, to the entire tract, by reason of the construction
and operation of the appellee's road. It is inadmissible to
328 Page et al. v. Cm., Mil. & St. P. Ey. Co. [Sept. T.
Opinion of the Court.
treat that portion of the property injured as a distinct and
separate tract from that portion benefited.
If the inconvenience of the road to a certain selected part
of the tract, will be outweighed by the additional convenience
of the road to the residue of the tract, the tract will not be
damaged by the inconvenience of the road. A partial effect
only is not to be considered, but the whole effect; and the
effect, not upon any selected part of the tract, but upon the
whole tract. This is not deducting benefits or advantages
from damages, but it is ascertaining whether there be damages
or not. It is but the estimation of damages, and seems the
only fair and just mode of estimating them. See Meacham
v. Fitchburg Railroad Company, 4 Cush. 292 ; Watson v. The
Pittsburgh and Connellsville Hailroad, 37 Penn. St. 469 ; Schuyl-
kill Navigation Company v. Thoburn, 7 S. and R. 410.
The true measure of compensation, according to the rule
laid down in the case last cited, would be the difference
between what the whole property would have sold for, unaf-
fected by the railroad, and what it would have sold for as
affected by it.
In the case of Chicago, Rock Island and Pacific Bailroad
Company v. Francis, ante, p. 238, this subject of damage was,
to some extent, considered. It was held, that the damage
contemplated by the constitution must be an actual diminu-
tion of present value or price caused by construction of the
road, or a physical injury to the property, that renders it less
valuable in the market, if offered for sale; that it must be
real, not speculative, damages ; and although the question
there was under the constitution, and not under the act forbid-
ding benefits to be deducted, yet the act is only for the car-
rying out of the provision of the constitution. If the market
value of the tract will not be diminished by the construction
and operation of the road, the land can not be said to be
damaged thereby.
It is admitted that any mere general and public benefit, or
increase of value received by the land, in common with other
1873.] Page et al v. Chi., Mil. & St. P. Ey. Co. 329
Opinion of the Court.
lands in the neighborhood, is not to be taken into considera-
tion, in estimating compensation ; and it is claimed that
receiving and considering evidence as to the effect of the
crossing, was an infringment of this rule; because the advan-
tage of the crossing was not confined to the tract of land in
question, but extended also to some other adjacent tracts.
But the testimony showed the beneficial effect of the crossing
to be so limited in extent, that the fact of its not being con-
fined to this tract, did not, we think, deprive the crossing of
the character of a local and peculiar benefit to this land. In
this particular, there is an analogy between this case and
that of Hayes v. Ottawa, Oswego and Fox Hiver Valley Railroad
Company, 54 111. 373, where, under the statute of 1852,
which admitted the consideration of only special benefits, it
was held proper to receive testimony in regard to the effect
of the location of a depot, within a certain distance, upon the
val ue of the land, a part whereof was sought to be condemned.
The case of Cleveland and Pittsburgh Railroad Company
v. Rail, 5 Ohio State, 568, is cited, in support of appellant's
position.
But the fall scope of that decision can hardly be regarded
as in conflict with the views here expressed. The constitu-
tion of that State prohibited the deduction of benefits.
One proposition there decided is stated in the syllabus of
the case, and correctly, we believe, as follows :
" In case of a railroad appropriation for a right of way
through a tract of land, causing incidental and local injury
to the residue of the tract, although general resulting benefits
from the railroad to the value of such residue of the land,
can not be taken into account in estimating the amount of
compensation to be paid the owner; yet, where a local inci-
dental benefit to the residue of the land is blended or con-
nected, either in locality or subject matter, with a local
incidental injury to such residue of the land, the benefit may
be considered in fixing the compensation to be paid the owner,
not by way of deduction from the compensation, but of show-
330 Page et al. v. Chi., Mil. & St. P. Ey. Co. [Sept. T.
Opinion of the Court.
ing the extent of the injury done the value of the residue of
the land."
The road there was located across certain coal lands, and
cut off communication with a river which furnished water
transportation for the coal; and it was held proper to con-
sider how far such injury was counterbalanced by the facilities
supplied by the railroad for the transportation of the coal.
And so, too, in Israel et al. v. Jewett et al. 29 Iowa, a case also
relied upon by appellants in their support, which was one of
the change of a road over the lands of the defendant, the court
sanctioned the consideration of benefit, at least to the extent
of allowing for the value of the land restored to the defend-
ant by the change, as an off-set to that taken, although the
constitution of that State forbade the taking into considera-
tion any advantages that might result to the landowner on
account of the improvement for which the land was taken.
As wre understand the case before us, the market value of
the land, as enhanced by the general resulting benefits from
the road, was taken, and, under testimony introduced, that
enhanced market value of a narrow strip of the land adjacent
to the road would be diminished by the construction and
operation of the road ; but taking the tract together, in view
of the peculiar local advantage of the crossing, such market
value of the whole tract would not be diminished by the
construction across it, and operation of the railroad.
Under the state of facts here, we can not say that there
was any substantial error in refusing the instructions asked
by the defendants, and, in place of them, giving the instruc-
tion above, or in the admission of testimony as to whether or
not the tract of land would be diminished in value by the
construction and operation of the road.
An objection is taken, that the amount found by the jury
for the land taken is insufficient. The testimony of different
witnesses as to the value of the land taken, was widely
variant, as is not unusual upon a question of value, especially
in respect to land situated like this. The jury did not take
1873.] Hoyt v. Tuxbuey et al. 331
Syllabus.
the estimate of any one witness or set of witnesses, but their
verdict seems to have been formed from the comparing
together and weighing of the whole testimony, and we see no
sufficient reason for disturbing their conclusion.
The judgment is affirmed.
Judgment affirmed.
William H. Hoyt
v.
Geoege W. Tuxbuey et ah
1. Agency — ratification of sale made without authority. Although an
agent contracts for the sale of land without sufficient authority from the
owner, yet, if the latter, through another agent duly authorized, ratifies
the same, and makes a tender of a conveyance in pursuance of such con-
tract, it will be binding on him.
2. Specific performance — objections to title as an excuse for delay in
performing contract to purchase. Where there was a judgment of record
against a former owner of a tract of land sold, but which was in fact satis-
fied, though the satisfaction not entered of record, and a third party was
in possession of a part of the land as a mere squatter, and the purchaser,
when tendered a deed, refused to accept the same and comply on his part
for the reasons stated, it was held, on bill by the purchaser, afterwards
filed, for a specific performance, that, if the objections to the title were
well founded and urged in good faith, the purchaser was excusable for
not performing at the time of the tender, but if they were urged in bad
faith, he could not be excused for the delay occasioned in the performance
on his part.
3. A purchaser of real estate can not be compelled to take a doubtful
title, which may expose him to the expense and hazard of litigation.
4. Same — not a matter of right. A party can not, as a matter of right,
call upon a court of equity to specifically enforce the performance of a
contract, but the exercise of the power rests in the sound discretion of
the court, in view of the terms of the contract and the surrounding cir-
cumstances.
5. Same— pcwty asking, must show his readiness to perform. A party
seeking the specific performance of a contract for the sale of land, must
show that he has always been ready, willing and eager to perform on his
part.
332 Hoyt v. Tuxbury et ah [Sept. T.
Opinion of the Court.
6. Same — delay in accepting the title offered. Where the purchaser of
land has an option to avoid the contract for objections to the title, any
delay in deciding whether he will accept the same, will defeat his right
to a specific performance.
7. Where the purchase of land is made upon condition the title is
found good, the purchaser is only entitled to a reasonable time in which
to determine whether he will take the title the vendor has, or reject it.
He can not keep the contract open indefinitely, so as to avail of a rise in
the value of the property, or relieve himself in case of a depreciation.
8. Same — when time of performing is of the essence of the contract. Time
may be implied as essential in a contract, from the nature of the subject
matter of the contract. If the thing sold be of greater or less value,
according to the effluxion of time, then time is of the essence of the con-
tract, and must be observed in equity as well as at law.
9. Amendment — to bill in 'chancery, discretionary. The granting or
refusing leave to amend a bill in chancery after the hearing and before a
final decision, being purely a matter of discretion, can not be assigned
for error.
Appeal from the Circuit Court of Cook county ; the
Hon. E. S. Williams, Judge, presiding.
This was a bill for specific performance, filed by William
H. Hoyt against George W. Tuxbury, George W. Gerrish and
George M. Gibson. The opinion of the court states the
necessary facts.
Messrs. Monroe, Bisbee & Gibbs, and Messrs. Herbert &
Quick, for the appellant.
Messrs. Miller & Frost, for the appellees.
Mr. Justice Scholfield delivered the opinion of the
Court :
This appeal is prosecuted for the purpose of reversing a
decree dismissing a bill for the specific performance of the
following contract:
" Real Estate Office of R. Fowler & Co.,
No. 13 Exchange Place,
Chicago, February 17, 1869.
Received of Wm. H. Hoyt $1000, to be applied as part
payment towards the purchase of the following described real
1873.] Hoyt v. Tuxbury et al. 333
Opinion of the Court.
estate, viz: the south half of the south-east quarter of section
15 of town 38, range 14, it being in the south half of Hugh
Maher's sub-division, excepting block 29 and east half of
block 28, (which was previously sold, it being 72J acres,)
hereby bargained and sold, the said the above property being
blocks 17 to 27, and half of 28, and 30 to 32, for the price
and sum of $72,500, $17,500 more to be paid on the delivery
of a good and sufficient deed of conveyance for the same,
within 20 days from date, or as much sooner thereafter as the
deed is ready for delivery, with release of dower, after the
title has been examined and found good. And the balance
to be paid as follows: one-fourth, or $18,000, to be paid in
one year, same amount in two years from date, and like
amount in three years from date, all at seven per cent.
To be secured by mortgage or trust deed on the premises ;
and should the title to the property not prove good, then this
$1000 to be refunded.
But should the said William H. Hoyt fail or refuse to per-
form this contract at the time and in the manner above
specified, then the above $1000 shall be forfeited by him as
liquidated damages.
(Signed) K. Fowler & Co., [seal.]
Agents for Geo. W. Tuxbury.
W. H. Hoyt. [seal.]"
Evidence was introduced on the hearing in the court below,
tending to show that R. Fowler & Co. executed the contract
without sufficient authority from Tuxbury, and that objection
is urged in the printed argument filed on behalf of appellees,
with some apparent earnestness. We are not inclined to
think that the question is of controlling importance, since it
is conceded that Tuxbury subsequently authorized Gerrish to
make the necessary investigation, and if he should then be
of opinion that the contract price of the land was a proper
one, and it was for Tuxbury's interest to carry the contract
into effect, to do so in his name, and that, pursuant to such
334 Hoyt v. Tuxbury et al. [Sept. T.
Opinion of the Court.
authority, Gerrish, after making satisfactory investigation,
indorsed the following upon the original contract:
" Chicago, May 13, 1869.
I do hereby agree, and by these presents do agree, as agent
of George W. Tuxbury, and, further, I do agree that the con-
tract made by R. Fowler & Co. shall be carried out as stipu-
lated in said contract. Received from William H. Hoyt
$500, as further payment on land sold by within contract.
G. W. Gerrish. "
Gerrish, at the time of making this indorsement, in addi-
tion to the authority specially conferred upon him by Tux-
bury, was equitably interested, to some extent, in the property
which is the subject of the contract, and both he and Tux-
bury, subsequent to this indorsement, acted in a manner to
fully justify appellant in the belief of the validity of the
contract when thus ratified.
The allegations in the bill upon which the claim for spe-
cific performance is based, are, in brief: that, as appears from
the abstract of title furnished appellant by Tuxbury, and, in
fact, at the time Tuxbury tendered appellant a deed for the
property, in attempted pursuance of the terms of the con-
tract, there was a judgment of several thousand dollars, which
appeared of record upon the records of the Circuit Court of
the United States for the Northern District of Illinois, which
was then unsatisfied and a lien upon the property ; and that
one Drake was then in possession of a portion of the prop-
erty, and claimed an interest therein; that he then notified
Tuxbury of these objections to his title, and offered to pay
the $17,500 stipulated by the contract to be paid upon the
delivery of the deed, as soon as the objections should be re-
moved and the title to the property be perfected; that neither
Tuxbury nor Gerrish took any steps to remove these incum-
brances or to perfect the title to the property, or offered to
refund the $1500 which appellant had paid on the contract;
that afterwards, and prior to 1869, appellant, at his
1873.] Hoyt v. Tuxbury et al 335
Opinion of the Court.
own expense, caused the title to the land to be investigated,
and found that the judgment had been paid, although not
satisfied of record, and that, as he believed, the claim of
Drake was merely that of a squatter, and could be defeated ;
that on the day of , 1869, appellant informed
Tuxbury that he had investigated the title to the property,
and was then ready and willing to accept his deed, make the
payment and execute the notes and mortgage, etc., as pro-
vided by the contract, but that Tuxbury then refused to
deliver his deed.
The defense is based upon the grounds that Tuxbury's
deed was tendered in good faith, and that, had it been
accepted by the appellant, it would have invested him with
a good title to the property; that the judgment claimed to
have been a lien on the property, had been paid, and that
Drake claimed no interest in the property, and was, at any
time, ready to surrender possession to the owner; that appel-
lant was unable to comply with his contract, and urged his
objections to the title in bad faith, and that, by his failure to
comply with the contract, Tuxbury was justified in treating
it as abandoned.
The bill was not filed until the 7th day of September,
1872, over three years and a-half after the making of the con-
tract, and some three months less than that period after its
ratification by Gerrish.
The bill is filed by the appellant in his own behalf, and
also on behalf and for the benefit of his grantees and those
to whom he has contracted and agreed to sell certain parts of
the property, one of whom is Hugh Maher.
It appears, from the evidence, that, in May, 1869, and a
short time subsequent to the making of the contract with
Fowler and Co., a deed for the property in controversy was
tendered the appellant by Miller, who was the attorney of
Tuxbury. This occurred at Miller's office, in Chicago, in the
presence of several witnesses, whose evidence as to what then
transpired is preserved in the record. Although there are
336 Hoyt v. Tuxbury et al. [Sept. T.
Opinion of the Court.
some discrepancies in their different recollections, these facts
seem to be sufficiently established : Miller tendered Tux-
bury's deed for the property in controversy, to the appellant,
informing him that he was prepared to carry out the contract,
and demanded the cash payment to be made by appellant, and
that the deferred payments be secured in accordance with the
terms of the contract. Appellant declined receiving the
deed, or to take any steps towards complying with the con-
tract, alleging, through his attorney, Peabody, who was then
present, as his reason for declining to receive the deed, that
Tuxbury had not complied with his contract; that there was
an unsatisfied judgment against Hugh Maher, who had form-
erly been the owner of the property, which was a lien upon
it, and also that one Drake occupied a part of the land, and
claimed some interest in it.
If these objections were well founded, and urged in good
faith, appellant was certainly justified in refusing to accept
the deed and perform his part of the contract, for a purchaser
can not be compelled to take a doubtful title, which will
expose him to the expense and hazard of litigation. Fry on
Specific Performance, § 580; 2 Chitty on Contracts, (11 Am.
Ed.) p. 1496. If, however, they were urged in bad faith, it
is equally certain that the appellant can not be excused for
the delay thereby occasioned in the performance of the con-
tract.
The evidence fails to clearly satisfy us that these objections
were either well founded or urged in good faith by the appel-
lant.
The judgment alluded to as being a lien on the property,
it appears, was obtained by Crawford and others against Edw.
Kelley and Hugh Maher, in the Circuit Court of the United
States for the Northern District of Illinois, on the 13th day of
April, 1864, for $6033.49, and was assigned to one James Rob-
erts, on the 4th day of March, 1867. Roberts was the brother-
in-law of Maher, and in his employ, at monthly wages, at the
time the judgment was assigned to him, and, during the
1873.] Hoyt v. Tuxbury et al. 337
Opinion of the Court.
time, he was the ostensible owner of it. It seems, during
this time, to have been completely under Maher's control.
Although he swears that it was not discharged until the 14th
of January, 1873, he, nevertheless, admits that he had a re-
lease of the judgment as to the property now in controversy,
in 1869, to be used in a negotiation then pending between
him and Gerrish, but which he claims to have subsequently
destroyed. He says he obtained releases of this judgment
as to particular property, "but not to wipe out the whole judg-
ment;" that Roberts made frequent releases of the judgment
as to particular property, for him; "that he did so as many
as forty or fifty times." It does not appear that anything
had to be paid for these releases, or that the slightest effort
was made to enforce the payment of the judgment. When
it was Maher's interest that it should be a lien, it was a lien,
and when it was his interest to have particular property dis-
incumbered of it, the desired releases were ready.
It appears, moreover, that, at the time appellant urged the
objection of the existence of this lien, he knew of its real
character, and had then made an arrangement by which it
was to be released.
Fowler testifies, that, at the time he delivered the abstract
of title to appellant, he thinks he told him this judgment had
been paid. As nearly as we can gather from the evidence,
about two months after the making of the contract with Fow-
ler & Co., and which was before the deed was tendered appel-
lant at Miller's office, appellant entered into a contract with
Maher, whereby he contracted and agreed to convey to Maher
the undivided half of the north 40 acres, upon the same
terms upon which he himself was to receive the property
from Tuxbury. Appellant says : " I went to Maher, because
I wanted to get the judgment out of the way, and he held a
contract for the land with Gerrish. He said he did not own
the judgment — some friend did, and he could control it, and
if I would give him an interest, he would see it canceled.
After that, I went to him three or four times. He refused to
22— 70th III.
338 Hoyt v, Tuxbury et al. [Sept. T.
Opinion of the Court.
get it canceled until he got a settlement with Gerrish, when
he promised to do it. And just before I wrote to Tuxbury,
he told me the judgment was satisfied. This was the next
year after the meeting in Miller's office."
The objection urged against the deed on account of the
claim of Drake, is not sustained by a clear preponderance of
evidence.
It is not shown that Drake had a shadow or claim of title,
in fact, to the property, other than what is to be inferred
from a mere naked possession of a part of it.
It is true, appellant and his son swear that Drake made
claim to the property, but this is denied positively by Drake,
who swears that he had no claim to the property, and that he
was, at any time, ready to surrender its possession to the right-
ful owner, and that he so informed appellant.
Hancock swears that he saw Drake, in the fall of 1869, at
the instance of Gerrish, and that, being informed by him that
he would move off the property, and not defeat the sale, he
communicated this fact to appellant, who then, he says, fell
back on Peabody's objections to the title, which had been
urged when the deed was tendered, at Miller's office. But,
waiving this point, and assuming that the objections to the
deed were well founded, and urged in good faith, does the
evidence show that appellant is entitled to the relief he seeks?
The rule, time and again announced by this court, is, that
a party can not call, as a matter of right, upon a court of
equity to specifically enforce the performance of a contract;
that its exercise rests in the sound discretion of the court, in
view of the terms of the contract of the parties, and sur-
rounding circumstances. A party demanding its exercise, is
bound to show he himself has always been ready, willing and
eager to perform on his part. Phelps v. The Illinois Central
Railroad Company et al 63 111. 468; Stow v. Russell, 36 id. 18 ;
Board of Supervisors v. Henneberry, 41 id. 179.
"Where the contract is in anywise unilateral," says Fry,
in his work on Specific Performance, § 732, " as, for instance,
1873.] Hoyt v. Tuxbury et ah 339
Opinion of the Court.
in the case of an option to purchase a right of renewal, or
any other conditionin favor of one party and not of the other,
then any delay in the party in whose favor the contract is
binding, is looked at with especial strictness. On this prin-
ciple, the delay of the purchaser in deciding whether he will
or not accept the title, is an injustice, because the purchaser
can enforce the contract against the vendor, whether the title
be good or bad, whereas the vendor can only do so in case of
a good title." So, also, it is again said, by the same author,
in § 713: "Time may be implied as essential in a contract,
from the nature of the subject matter with which the parties
are dealing." "If, therefore," said Mr. Baron Alderson,
"the thing sold be of greater or lesser value, according to the
effluxion of time, it is manifest that time is of the essence of
the contract, and a stipulation as to time must then be liter-
ally complied with in equity as well as at law."
In McKay v. Carrington, 1 McLean, 59, this principle is ap-
plied to a contract for the sale of real estate, the court saying :
" When the property has not materially changed in value, and
the circumstances of the parties in relation to it remain sub-
stantially as they were when the contract was made, or was
made to have been performed, time is seldom considered ma-
terial. But where a specific execution of the contract will
give the purchaser property greatly deteriorated from the
value it bore when he should have received it, it would be
unjust to compel him to receive it. Chancery will never
interpose its powers, under such circumstances, to carry the
contract into effect."
And this must obviously apply with equal force in cases,
like the present, where the purchaser is seeking specific per-
formance, and the property has, pending the delay of the pur-
chaser to determine whether he will take the title the vendor
has, greatly increased in value. See, also, Schmidt v. Livings-
ton, 3 Edwards (ChV), 213; Williams' Admrs. v. Stark, 2 B.
Monroe, 196.
340 Hoyt v. Tuxbury et al. [Sept. T.
Opinion of the Court.
It appears, from the evidence, that appellant was a real
estate broker, and the contract made by him for the purchase
of the property in controversy, was for the purpose of specu-
lation. The location of the property was deemed favorable
for that purpose. Its proximity to a contemplated public
park, and the prospective improvements incident thereto,
afforded reasonable ground for the expectation that it would
materially and speedily appreciate in value. This, however,
necessarily depended on a number of contingencies, and time
alone could fully determine to what extent the expectations
would be realized. There was a reasonable prospect of gain
from the purchase, at the contract price, but, at the same
time, a possibility of loss.
By the terms of the contract, if the title was found to be
not good, appellant was to have back the $1000 paid at the
execution of the contract. If he failed to comply with the
contract, he was to forfeit the $1000 as liquidated damages.
Appellant might elect to take the title, notwithstanding his
objections to it, but Tuxbury could not compel him to do so.
The title which appellant now asks to have decreed him,
is the same title which he rejected at Miller's office. Between
that time and the time he claims to have written to Tuxbury,
notifying him that he would take the title, which he states to
have been from one year and a half to two years, he does not
pretend that he was willing to receive this title, or that he
offered to comply with his part of the contract, except upon
condition that Peabody's objections should be removed. It
is shown, by the testimony of Tuxbury, that the title papers
remained in the possession of Miller for over a year after the
deed was first tendered, and that appellant might, at any
time during that period, have had the title by simply com-
plying with the terms of his contract. Appellant knew that
Miller was acting as the attorney of Tuxbury in this matter;
he acknowledges to having been tendered the deed by him,
twice, and that he, on both occasions, rejected it. Nor does
he assert that he ever actually tendered Tuxbury, or any one
1873.] Hoyt v, Tuxbury et at. 341
Opinion of the Court.
acting for him, the amount due by the terms of the contract,
and demanded of him the title he was able to convey, until
the 30th day of May, 1872, over three years after the ratifi-
cation of the contract by Gerrish, and when, as he swears, the
property had increased in value from $1000 to $2000 or $3000
per acre.
It is clear, upon the principles before quoted, that appel-
lant was only entitled to a reasonable time in which to deter-
mine whether he would take the title Tuxbury had, or reject
it, and that he could not keep the trade suspended indefinitely,
so as to avail of a rise in the value of the property, or relieve
himself from loss by rescinding the contract, in the event of
its depreciation, and the court below was justified in finding
that Tuxbury was authorized to treat the contract as aban-
doned by appellant.
There is an apparent conflict in the evidence, whether Ger-
rish tendered appellant the $1500 which he had advanced on
the contract, and notified him that he would thenceforth treat
the contract as rescinded. We say " apparent conflict," be-
cause it is more in the form of the expression than in the
substance. Gerrish swears positively that he tendered him
the $1500 back, and notified him the contract was rescinded.
Appellant claims that Gerrish offered to pay him the $1500,
to buy him out. He does not deny that he had refused to
accept the deed which had been tendered him. He made no
tender of money, and offer to carry out his part of the con-
tract, at the time. He knew that Gerrish was acting as the
agent of Tuxbury, and must have known that the object in
offering to pay him the $1500, was, to get rid of his claim.
Whether it was called a re-payment or a buying out, the sub-
stance was precisely the same. It was to give the money
back to him which he had advanced on the contract, and
end his claim to the property. He had an opportunity to
have his money back, and declined to take it, and he could
not have been ignorant that it was the intention of Tuxbury,
at least thenceforth, to treat the contract as abandoned.
342 Hoyt v. Tuxbuky et al. [Sept. T.
ODinion of the Court.
We are in doubt, from the evidence, whether appellant was,
in fact, able to comply with his part of the contract, when
the deed was tendered him in Miller's office, in 1869, or for a
long time subsequent thereto. He testifies, in general terms,
to his ability, but, in specifying the sources from which he
was to raise the money, he mentions a contract for the sale
of a portion of this identical property to Wadsworth and Pea-
body, from which he was to raise from $7000 to $9000, but
that contract could not, manifestly, have been enforced. By
it, he obligated himself to convey a title free from all incum-
brances, and take mortgages for the deferred payments, "each
block to be mortgaged for its proportionate share of said de-
ferred payments." By his contract with Tuxbury, the
deferred payments were to be secured by mortgage or trust
deed on the entire premises. No agreement is shown whereby
Tuxbury consented to so modify his contract as to make the
performance of the terms of the Wadsworth and Peabody
contract possible. The $88,500, too, actually tendered on the
30th of May, 1872, was raised by contracts for the sale of
this same property. Had this property declined, instead of
increased, in value, it is not clear, from the evidence, from
what source appellant could have raised the money where-
with to make a tender.
But, from a careful consideration of all the evidence, we
are unable to say, in any view, that the court below erred in
dismissing appellant's bill. The impression which the evi-
dence produces on our minds, is, that it was appellant's inten-
tion to perform the contract only in case it suited his interest,
and he is, therefore, not entitled to the assistance of a court
of equity. The burden was upon him to clearly show such
facts as entitle him to equitable relief, and this he has failed
to do.
The objection, that the court refused to allow certain amend-
ments to be made after the hearing and final decision of the
case in the court below, can not be assigned for error.
1873.] Bliss v. Harris et at. 343
Syllabus.
Whether the amendment should be made, or not, rested
purely in the discretion of the court.
We do not consider, however, that these amendments^ if
they had been made in apt time, could have materially affected
the result. The title sought by the bill is not shown to be
other or different from the one tendered at Miller's office, in
May, 1869. The imperfections existing in the assignment of
the mortgage, at that time, are not shown to have been subse-
quently corrected, and however valid the objection might
have been as a defense to a suit for specific performance
against the appellant, we fail to perceive how it can avail
him in a suit for specific performance against Tuxbury, in
which he proposes to take the title, notwithstanding this
objection. It certainly conferred no greater right than did
the objections named in the bill, to wait three years before
finally determining to take the title, notwithstanding the
objections.
Perceiving no error in the decree of the court below, it is
affirmed.
Decree affirmed.
Irwin E. Bliss
v.
Ebenezer Harris et al.
1. Justices' courts— -jurisdiction — strict formality not required. While
it is true, that a justice's court is an inferior one, and one of limited juris-
diction, and in order to render the judgments of such courts valid, it
must appear that they had jurisdiction both of the subject matter and of
the person, yet the policy of our laws forbids that the proceedings and
judgment of these courts should be defeated by technicalities ; therefore,
formalities in the summons or rendition of judgment are not required.
2. Same— jurisdiction by appearance. If a defendant appears before a
justice of the peace, and voluntarily submits himself to the jurisdiction
of the court, without a summons, there is no reason why the justice should
not proceed in the same manner as if the defendant had appeared in obe-
dience to a summons duly issued and served.
344 Bliss v. Harris et al. [Sept. T.
Opinion of the Court.
3. Where a defendant was brought before a justice of the peace, on a
capias, it not appearing that an affidavit was filed sufficient to authorize
the issuing of the writ, and made no objection to the manner in which
he was brought into court, but voluntarily confessed that he was indebted
to the plaintiff in the sum demanded, and that the same was due and
unpaid: Held, that such appearance invested the justice with jurisdic-
tion to render judgment against him for the amount claimed.
Appeal from the Circuit Court of Iroquois county; the
Hon. Charles H. Wood, Judge, presiding.
This was an action of replevin, brought by Ebenezer Har-
ris and John Worden, against Irwin E. Bliss, for certain
goods and chattels. The defendant, among other pleas, justi-
fied the taking and detention of the property under execu-
tions issued upon the judgments mentioned in the opinion of
the court.
The plaintiffs, among other things, replied that there was
no valid judgment rendered against said William Mower.
The court below held the judgments to be void, and a
recovery was had in favor of the plaintiffs. The defendant
appealed.
Mr. L. E. Payson, for the appellant.
Mr. W. G. Coy, for the appellees.
Mr. Justice Craig delivered the opinion of the Court :
The only question presented by the record in this case is,
whether certain judgments rendered before a justice of the
peace are valid. They are as follows:
" James Howarth ^
v. V Demand, $78.79.
" William Mower. J
"1870, October 24, capias issued, returnable forthwith,
unless special bail be entered; and if such bail be entered,
you will then command him to appear before me, at my office,
on the first day of November, 1870, at 10 o'clock A. M.; and
handed to E. Bliss to serve."
1873.] Bliss v. Harris et al. 345
Opinion of the Court.
"1870, October 24, capias returned by Constable Bliss,
served by bringing the defendant before the court. Fees,
$1.05. 24th October, 1870, 10 o'clock A. M., cause was
called. Parties appeared. Plaintiff demands of defendant
the sum of $78.79. Defendant confesses that he is indebted
to said plaintiff in the above sum, which is due and unpaid;
whereupon, it is considered by the court that said plaintiff
have and recover of said defendant the sum of $78.79, for
his judgment against said defendant, and costs of suit herein,
taxed at $3.65. O. P. Ross, J. P."
The other judgment was in favor of Travis, and against
Mower; amount, $12.10. In form, it is the same as the pre-
ceding one, except it shows that the capias issued on the oath
of the plaintiff.
It is true, the court of a justice of the peace is of inferior
and limited jurisdiction, and in order to render the judgments
of such courts valid, it must appear that they had jurisdic-
tion of the subject matter and of the person, yet the policy
of our laws forbids that the proceedings and judgments of
these courts should be defeated by technicalities.
Justices of the peace are established in every township in
the State, to enable parties not acquainted with the formal
requirements of law to obtain speedy trials, without pleadings,
and without being compelled to employ counsel skilled in the
law to assist. Formalities in the summons or rendition of
judgment are not required.
In the judgments under consideration, there is no question
but the justice had jurisdiction of the subject matter. The
only point made against the validity of the judgments is,
that the court did not have jurisdiction of the person of the
defendant. The statute requires the justice to issue a sum-
mons, which is to be served on the defendant three days
before the trial. The object of the summons is, to bring the
defendant before the court. Now, if the defendant appears
before the justice, and voluntarily submits himself to the
jurisdiction of the court, without a summons, there is no
346 Bliss v. Harris et al. [Sept. T.
Opinion of the Court.
reason why the justice can not proceed in the same manner
as if the defendant had appeared in obedience to a summons
issued and served.
It does not appear that an affidavit was filed sufficient to
justify the justice to issue the capias, and when the defendant
was brought before him, had he refused to submit to the
jurisdiction, no judgment could have been legally rendered;
but the docket of the justice of the peace shows, when the
defendant appeared, no objection was made to the. manner in
which he was brought in court, but he voluntarily confessed
that he was indebted to the plaintiff in the sum demanded,
which was due and unpaid, whereupon the justice of the
peace rendered judgment.
Under this state of facts, we do not entertain any doubt
of the authority of the justice to render the judgments. Case
of Bragg v. Fessenden, 11 111. 544, is directly in point.
Case of Elliott v. Daiber, 42 111. 468, cited by counsel for
appellee, is not in point in this case. In that case, the only
question was, whether a judgment rendered was by confes-
sion. This court held it was not, for the reason that the
language used by the defendant in that case could not bear
that construction. All that the defendant said in that case
was, "he could not deny the plaintiffs demand." In that
case, the court use this language: "It does not follow, be-
cause a defendant says he can not deny the plaintiff's demand,
that he is the plaintiff's debtor. Defendant may have claims
to set-off, which he may not choose to litigate before the
justice."
The language used by the defendant in the case under con-
sideration is entirely different, and precludes the idea that he
had any set-off, or any defense, or wished to litigate in any
other court. He confessed that he was indebted to plaintiff
in the sum demanded, which was due and unpaid; but it is
not necessary that this should be a judgment by confession,
to sustain it. When the defendant submitted himself to the
jurisdiction of the court, and freely and voluntarily confessed
1873.] Eberhart v. Chi., Mil. & St. P. Ky. Co. 347
Statement of the case.
that he owed the debt, it was proper for the court to enter
the judgments precisely as if summons had been served upon
him.
The judgment of the circuit court will be reversed and the
cause remanded.
Judgment reversed.
JoHjtf F. Eberhart
v.
Chicago, Milwaukee and St. Paul Railway Co.
1. Right of way — measure of damage, where the property is not taken.
Where land is not taken by a railway company for its right of way, but
damaged only, the question should be, will the property be of less value,
when the road is constructed, than it was when it was located? If so,
then the difference is the true measure of damages. To ascertain this, the
opinions of intelligent witnesses on the subject, are proper.
2. Same — damages must be actual. The damages contemplated by the
constitution, where the property is not taken for the use of a railway com-
pany, must be actual, real and present damage to the property.
Appeal from the Circuit Court of Cook county ; the Hon.
Henky Booth, Judge, presiding.
This was a proceeding to condemn lots 11, 12 and 17, in
block 4, and* lots 3, 4 and 5, in block 3, in Eberhart &
Wedge's addition to Chicago. The appellant was the owner
of 73 lots in this addition. The appellee, being about to con-
struct a railroad diagonally through them, filed its petition
to condemn the lots above named, they being the only lots
which the road touched or structurally injured in passing
through the addition. The appellant (defendant below,) filed
his answer and cross-bill, in which he claimed to own 68 lots
adjacent to the road, besides those sought to be condemned,
and asked that there be awarded to him, in the same proceed-
ing, such damages as the jury should find those other lots
348 Eberhart v. Chi., Mil. & St. P. Ry. Co. [Sept. T.
Opinion of the Court.
would sustain by the location of the road. Under the instruc-
tions of the court, the jury gave $6000 for the Jots taken, and
nothing for those not taken. The defendant appealed, making
no question as to the damages allowed for the lots taken, but
complaining as to the finding as to the others.
Mr. Leonard Swett, and Mr. George Burry, for the
appellant.
Mr. E. Walker, for the appellee.
Mr. Chief Justice Breese delivered the opinion of the
Court :
This was a proceeding instituted in the circuit court of
Cook county, by The Chicago, Milwaukee and St. Paul Pail-
way Company, against John F. Eberhart, to condemn certain
land belonging to defendant, for their road way.
It appears the land was platted into lots, some of which
were actually taken by the railway company, and damages
allowed therefor, about which there is no controversy. The
dispute is, as to the damage resulting to other lots in the plat,
not taken, and what is the true rule in such case.
On the trial of the cause, various instructions were asked
by both parties, which the court refused, supplying instruc-
tions of its own, to which both parties excepted, but which,
in the argument now submitted, meet the approval of the
petitioner. Much labor has been bestowed by counsel in this
cause, in preparing it for our consideration. The leading
cases in England, growing out of the interpretation, by the
courts of that country, of the Lands Clauses Consolidation
Act of 8 and 9 Victoria, chapter 18, and the Railways Clauses
Consolidation Act, of the same reign, chapter 20, have been
cited and commented on, as well as cases in the courts of our
own country, and divers views presented and enforced with
great ability.
1873.] Ebeehaet v. Chi., Mil. & St. P. Ey. Co. 349
Opinion of the Court.
We had occasion to examine the questions here arising and
discussed, at this term, in the case of the Chicago and Pacific
Railroad Company v. Francis, ante, p. 238, in which a majority
of the court held that, under the constitution and law, where
land was not taken, but damaged only, the question should
be, will the property be of less value, when the road is con-
structed, than it was when it was located? If so, then the
difference is the true measure of damages. To ascertain this,
the opinions of intelligent witnesses could be called into
requisition, and most of the elements entering into the ques-
tion of damages, so strenuously objected to by the appellee
here, were held proper to be considered.
The third instruction given by the court is not in con-
formity with the opinion in the case referred to, and should
not have been given.
The fourth instruction asked by appellant, and refused,
embraces, more nearly, the rule, as announced in the case
cited. It was as follows:
"If the jury believe, from the evidence, that this respond-
ent is the owner of the lots in said addition claimed by him,
and that certain of these lots are to be entirely taken for rail-
road purposes, and certain other of his lots, lying adjacent,
and not taken, are damaged by means of this taking, then,
as to the lots not taken, the jury will find, as damages, the
depreciation in the market value of the same by reason of
the construction and maintenance of said railroad. "
All the questions raised here, however, are settled by Chi-
cago and Pacific Railroad Company v. Francis, supra. It would
be unprofitable to discuss them now. It may not be improper
to say, that, in that case, the Chief Justice expressed his
opinion that the constitution contemplates, when property is
not taken, that the damages must be actual, real and present
damage to the .property, before they can be allowed.
350 C., E. I. & P. R. R. Co. v. Kennedy et al. [Sept. T.
Syllabus.
For a full discussion of all those questions, we refer to
Page et al. v. Tlie Chicago, Milwaukee and St. Paul Railway
Company, (this same company,) ante, p. 324.
For the reasons given, the judgment is reversed and the
cause remanded.
Judgment reversed.
Chicago, Eock Island and Pacific R. R. Co. et al.
Theodore W. Kennedy et al.
1. Notice. Whatever is sufficient to put a party upon inquiry which
would lead to the truth, is, in all respects, equal to, and must be regarded
as, notice.
2. Same — who are chargeable with. If a subsequent purchaser acts in
bad faith, and wilfully or negligently shuts his eyes against those lights
which, with proper observation, would lead hirn to a knowledge of facts
affecting the subject of his purchase, he will be held to have notice of
such facts.
3. Same — recitals in a deed. The recitals in a deed in the chain of
title, are such notice to a purchaser as would put him on inquiry as to
the nature and extent of the matters referred to in the recitals.
4. Same — to what extent recitals in a deed put a party on inquiry. In
this case, the owner of a tract of land had, in his lifetime, executed a
trust deed to secure the payment of an indebtedness, with a power of sale
upon default in pajrment. The indebtedness was paid after the death of
such owner, but the trustee afterwards sold under the deed, to parties
who had notice of such payment. Before any sale was made by the pur-
chaser, there were put upon record, in the office of the recorder of deeds
of the county where the land was situated, a power of attorney from one
to another of the heirs, in which was a recital that by the act of one of
the purchasers at the trustee's sale, naming him, and others, the rights
of some of the heirs had become involved; also, two mortgages on said
premises, executed by a part of the heirs, in both of which it was recited
that a suit had been commenced by such heirs to recover their interest
in the land, giving the title and purpose of such suit, and that such suit
had been dismissed by agreement of counsel, without adjudication: Held,
that the recitals in the power of attorney and mortgages were sufficient
to put subsequent purchasers upon inquiry as to the truth of the recitals,
1873.] C, K. I. & P. R. R. Co. v. Kennedy et ah 351
Syllabus.
and to charge them with notice of everything disclosed by the records,
in the proceedings mentioned in such recitals, and of everything which
they could have reasonably learned by inquiring in the direction to which
the recitals pointed.
5. Trust deed — effect of sale before default. Where a deed of trust con-
fers upon the trustee power to sell, upon default in payment of the debt
thereby secured, a sale made without such default to one who has, or who
is chargeable with notice that there has been no default, can not confer
anything beyond the legal title in trust for the benefit of the grantor in
the trust deed, or, if he be dead, of his heirs.
6. Under a deed of trust, with power of sale upon default in payment
of the debt, thereby secured, the power of sale does not become operative
until there is such default, and a sale, made after the debt has been paid,
is voidable as against a purchaser with notice, or the grantee of such
purchaser with like notice.
7. Same — who may become purchasers. When a party executes a deed
of trust to secure the payment of money, and dies, leaving children, some
of whom are adults and some minors, and the property is sold under the
deed of trust in default of payment of the debt thereby secured, there is
no reason why the adult heirs may not purchase the same at such sale,
and acquire title thereby, unless prevented by occupying a fiduciary
relation to the other heirs.
8. Minoes— power of next friend in a suit. A next friend can only
claim and pursue the rights of a minor, and is powerless to yield or cede
them to others, and the same is true of an attorney.
9. Where a suit is brought by a minor by his next friend, and, by
agreement of the attorneys in the case, it is dismissed, the rights of the
minor are not affected, nor is he thereby, estopped from afterwards suing
upon the same cause of action.
10. Same — laches. A delay of four years after minors have become of
age, is not such laches as to prevent their obtaining relief against a fraud-
ulent sale of their real estate, made while they were minors, where no
rights have been acquired by other persons, or material change in the
property occurred, after they arrived of age and before suit brought.
11. Estoppel. A party, who was an adult, claimed an interest in cer-
tain land, and executed to his brother-in-law a power of attorney, author-
izing him to sue for and recover his interest in such land, and to mortgage
and incumber the same, and also executed a mortgage to an attorney at
law, reciting that such attorney had brought suit for the recovery of his
interest in the land, in and by which mortgage he agreed to give said
attorney a certain portion of whatever interest was recovered. Afterwards,
by consent and agreement of both the said attorney in fact and attorney
at law, on the one side, and the parties and attorneys on the other side,
352 C, E. I, & P. R. R. Co. v. Kennedy et al. [Sept. T.
Opinion of the Court.
the suit was settled, and the land in controversy was sold under a mort-
gage, which was one of the subjects of controversy in the suit, and the
claimant received a portion of the proceeds of such sale: Held, that
he was bound by this arrangement made by his attorney at law and in
fact, and could not afterwards set up any claim to the land.
Appeal from the Superior Court of Cook county ; the Hon.
Joseph E. Gary, Judge, presiding.
Messrs. McCagg, Fuller & Culver, for the appellant
company.
Messrs. Johnston, Rogers & Appleton, and Mr. James
Felch, for appellee William Kennedy.
Messrs. Monroe, Bisbee & Gibbs, for appellee Sampson
Kennedy.
Mr. Justice Walker delivered the opinion of the Court :
It appears that William Kennedy, the ancestor of appellees,
and his wife, on the 15th of June, 1854, made a trust deed,
conveying about sixty acres of land adjoining the city of
Chicago, to Hugh T. Dickey, to secure the sum of $5000 and
interest, due to Francis G. Blanchard in three years from
that date. The interest was payable semi-annually. The
deed contained a full power to sell, by the trustee, in case of
default in making the payments.
The interest was regularly paid until the maturity of the
principal, by the sons of the grantor, who had died intestate
on the 24th of July, 1854. He left eight children at the
time of his death, four of whom were minors, of whom were
appellees Theodore W. Kennedy, Catharine J. Palmer and
Sampson Kennedy. On the 9th of October, 1857, Dickey,
acting under the trust deed, and for a default in not paying
the principal and the last installment of interest, sold the
land, together with other property, to the adult heirs, James
Kennedy, who was guardian of the minor heirs, and William
Kennedy, who, with his brother Alexander, were adminis-
1873.] C., R. I. & P. R. R. Co. v. Kennedy et al 353
Opinion of the Court.
trators, and to George W. Kennedy. They subsequently bor-
rowed money, and pledged the land as security for its payment,
but at maturity the debt was paid and the heirs discharged.
They also conveyed to the Ft. Wayne and Chicago Railroad
Company the right of way of their road on the west line of
the tract.
On the 1st day of February, 1859, Alexander, James M.,
William W. and George H. Kennedy, mortgaged the prem-
ises in controversy, together with other property, to one Turner
P. Westry, to secure $20,000 ; and on the same day they, by
trust deed, conveyed it, with the other property, to John V.
Le Moyne, as trustee for one John Arrington, to secure two
notes payable to him, due in nine months, amounting together
to $3000. This debt was incurred by the Kennedys for
services, real or pretended, in procuring the $20,000 loan
from Westry, and was subsequently claimed to have been for
usury, and it was also claimed that the loan by Westry was
usurious.
About the 16th day of November, 1860, default was made
in the payment of accrued interest on the $20,000 debt, and
in paying the $3000 debt to Arrington, and Westry and
Le Moyne commenced proceedings to foreclose the trust deed
and mortgage. James M., William W., George H., William,
by his next friend, and others, brought a suit in equity, in
the circuit court of Cook county, and obtained a temporary
injunction, restraining the sale of the land under the trust
deed and mortgage. Among other things, the bill charged
that Alexander had died, leaving William Kennedy surviv-
ing, and that he was his heir. On the hearing of that
case, the court found that the mortgagors owed Westry and
Arrington over $16,000 on the trust deed to secure the $3000
and the mortgage to secure the $20,000, and ordered its pay-
ment by a specified time, and in default thereof, that the bill
be dismissed and the injunction dissolved. The money to
redeem not having been paid, on the 21st of October, 1861,
the injunction was dissolved and the bill dismissed.
23— 70th III.
354 C, K. I. & P. R. R. Co. v. Kennedy et al. [Sept. T.
Opinion of the Court.
Before that bill was dismissed, about the 18th of March,
1861, Sampson Kennedy, Theodore W. Kennedy, Catharine
J. Kennedy, (now Palmer,) then infants, by George E. Sem-
ple, their next friend, and others by their attorneys, Farwell
and Smith, filed their bill in the Superior Court against
Arrington, LeMoyne and Wm. Kennedy, and others, upon
which an injunction was granted restraining a sale of the
land. In this bill it was charged that the original indebted-
ness to Blanchard was fully paid previous to the sale by
Dickey, and that the sale was null and void ; that Alexander
had died intestate, and that William was his heir, and claimed
an interest in the premises. The complainants, to secure
Farwell and Smith, their attorneys, for their professional
services, executed to them two separate mortgages, on the
25th day of May, 1861, which were, on the 28th, duly
recorded. The mortgages recite the commencement of the
suit; that Farwell and Smith were to receive one-fifth of what
might be recovered thereby.
By agreement made by Farwell, LeMoyne, Arrington and
Semple, and the adult heirs, except Sampson, on the 23d day
of January, 1862, to place the property in Arrington, Le Moyne
sold, under the trust deed, this land, with other property, to
Farwell, without consideration, and he, on the same day,
conveyed it to Arrington, without any other consideration
than the satisfaction of his debt. On the next day, Semple,
William W., George H. and James M., with their wives,
conveyed, by quit-claim deed, all of their interest in this and
other lands to Arrington, in satisfaction of the Westry mort-
gage for $20,000, and in discharge of the $3000 secured by
trust deed. These deeds were all recorded on the 21st of
March, 1862; and, as a part of the agreement, on the 7th
day of April, 1862, the suit was dismissed by stipulation, at
complainants' costs. On the 4th day of September, 1862,
Arrington conveyed this tract to Robert W. Hyman. On
the 19th day of January, 1864, Hyman conveyed this land
to Frederick H. Winston, for the benefit of appellants. The
1873.] C., R. I. & P. R. R. Co. v. Kennedy et aL 355
Opinion of the Court.
two mortgages to Farwell and Smith were not released until
after Winston's purchase, and by his procurement.
On these facts, the bill in this case was brought in the
Superior Court by Sampson Kennedy, Theodore W. Kennedy
and Catharine J. Kennedy, in November, 1868, against appel-
lants and others. William Kennedy filed a cross-bill, by his
next friend, but coming of age a few days before the trial, he
was admitted to prosecute in his own name. The original
bill prayed that the rights of the respective parties should
be ascertained, and a partition be decreed of the premises, or,
if that can not be done, that complainants be compensated in
money. Answers were filed, as well as replications, proofs
were heard, and the court below found that Theodore W.,
and Catharine J. Kennedy, since intermarried with one Pal-
mer, were seized of, and entitled to, an estate in fee simple,
as tenants in common of an undivided one-fourth part of
these premises, less the strip of one hundred feet in width
granted for right of way to the Chicago, Rock Island and
Pacific Railroad Company; that the Chicago, Rock Island
and Pacific Railroad Company and the Lake Shore and Mich-
igan Southern Railroad Company are the owners in fee of an
undivided three-fourths of the premises; that Sampson Ken-
nedy has no title to or interest in the premises ; that William
Kennedy owns no interest in the premises, and denies the
relief sought by his cross-bill. The court decreed a parti-
tion to be made, by assigning two-eighths of the premises to
Theodore W. Kennedy and Catharine J. Palmer, and six-
eighths to the two railroad companies, and appointed com-
missioners to make the partition, and this appeal is prosecuted
to reverse that decree.
It is urged that the abstract fails to show that the proper
notice of the sale was given, and that the conveyance by
Dickey passed no title. It is recited in his deed that "Whereas,
default hath been made in the payment of said sums of money,
the premises were, by the said party of the first part, duly
noticed and advertised for public sale, at the north door of
356 C, E. I. & P. E. E. Co. v. Kennedy et al. [Sept. T.
Opinion of the Court.
the court house, in Chicago, in the county and State afore-
said, on the 9th day of October, A. D. 1857, in the manner
prescribed in and by said deed of trust, and was, upon said
day and year, and at the place last mentioned aforesaid, in
pursuance of said notice and advertisement, sold at public
sale." This statement, contained in the deed, is all that- is
essential to be recited in reference to the notice, time and
place of sale. It is virtually saying, that the sale was duly
made in the manner required by the deed of trust. If such
a recital was not held sufficient, every particular, however
minute, would have to be recited in the deed. By no rea-
sonable construction of the language employed can it be held
to mean that the first notice was published on the 9th day
of October, the day the sale was made.
It is urged, in favor of a reversal, that the evidence fails to
show that the debt to Blanchard was paid before the sale was
made by Dickey, and that, as there is no other irregularity
in that sale, appellees must be held to be concluded from
asserting any claim to the land. If the money was still due
to Blanchard when the sale was made, no reason is perceived
why the adult heirs of William Kennedy, deceased, could
not purchase the land at the trustee's sale, and acquire the
title, unless prevented by occupying a fiduciary relation to
the other heirs, nor why they did not become the owners by
their purchase at that sale; but if, on the other hand, the
debt was paid, the power conferred on the trustee never
became complete. It was a conditional power, which could
only be exercised after default in payment should occur; and
a sale without such default, and consequently without power,
could not confer anything beyond the legal title in trust for
the benefit of the heirs of the grantor, especially to a person
having or being chargeable with notice that there was no
default. If there was none in this case, then the purchasers
at that sale knew the fact, as there is no pretense that any
other person paid the debt. Appellees claim that it was paid
before Dickey made the sale, and appellants contend that the
1873.] C, E. I. & P. E. E. Co. v. Kennedy et al. 357
Opinion of the Court.
payment was made afterwards, and for the land under their
purchase.
Does the evidence show that the Blanchard debt was paid
before the premises were sold under the trust deed? We
think it preponderates strongly in favor of such a payment.
Blanchard testified that the notes were, he thinks, paid, at
maturity, to his agents, George Eobbins & Sons, in New
York; and StampofTski testified that he raised the money to
pay Blanchard — $5250 — and so told Wadsworth, of whom he
got the $5250; that he forwarded it to New York, to Eob-
bins & Sons, to pay the notes, and, in the course of a week
subsequently, the notes came back canceled, and that he
turned them over to William Kennedy; that he personally
sent the money; that he bought the draft of Wadsworth, and
Kennedy requested him to send it to Blanchard, and he wrote
a letter and forwarded it to him ; that it was in June, 1857;
that he sent it directed to Eobbins & Sons, in their care; that
he also wrote a letter to Blanchard, notifying him that the
money was in New York.
W. W. Kennedy swears that the $5000 was paid at matu-
rity; that he knew it, because he saw the note and had pos-
session of it, and it was produced in evidence in the first suit;
that he had possession of it immediately after its payment,
on the 15th of June, 1857; would say it came to his posses-
sion about the 27th of that month ; that he knew it was paid,
because he and his brother James M. Kennedy raised the
money to pay it, and he sent on and got the note back ;
that the notes for the interest were paid at maturity, as he
and his brother paid and received them, and he had them
until they were destroyed by the fire, in October, 1871.
This evidence seems to be direct and clear to the point that
the money was raised on the note of the Kennedys, with
Stampoffski as surety, and that Wadsworth discounted the
note and furnished the exchange on New York, and that the
note was paid in June, 1857 ; nor do the discrepancies claimed
to exist between their evidence militate against its credibility.
358 C, E. I. & P. E. E. Co. v. Kennedy et al. [Sept. T.
Opinion of the Court.
It is no greater, and is of the character we would naturally
expect to find, after such a length of time. They fully con-
cur in all of the main facts, although differently detailed.
Had they differed in nothing, then it would have been, no
doubt, urged that they had previously compared their evi-
dence, and agreed as to what they would swear. Such slight
differences in unimportant matters, under the circumstances,
rather lend weight to, than detract from the force of the evi-
dence.
Nor does the evidence of Wadsworth and Woodbridge
overcome or counterbalance this evidence. The former says
he owned the note, but of whom he obtained it, what he paid
or when he procured it, he does not pretend to say. He says
that his recollection is indistinct, but he thinks he collected
it. He by no means pretends that he held the note before its
maturity, or that he purchased it of Blanchard; nor does he
say it was ever delivered to him as collateral security. He
by no means intimates that the other witnesses are mistaken
in their version of the matter. He says he would not remem-
ber having the note if it were not for what Dickey told him.
He does not remember who went with him to see Dickey in
reference to the sale. He does not place much, if any, confi-
dence in his recollection, and we think it too vague and
indefinite to carry with it much weight.
Woodbridge says that Blanchard held an incumbrance on
the property, or that it was so represented to him ; and, if he
is not mistaken, a question arose whether the property could
be sold, under the incumbrance, without control of the paper,
and that he advised that it could not be done; that if they
wished to sell, it must be done at the instance of the holder
of the paper. He thinks Wadsworth commenced negotiations
to purchase the notes of Blanchard, that he might direct the
sale; that he does not know whether Wadsworth conferred
with Blanchard or not, or whether he purchased the notes.
He, however, thinks that course was pursued. It will be
observed that the witness testifies with caution, and only
1873.] C, E. I. & P. E. E. Co. v. Kennedy et ah 359
Opinion of the Court.
states mere impressions. He states little or nothing as mat-
ter of fact, but simply as to what he thinks. This evidence,
we think, fails to overcome the evidence of complainants'
witnesses, nor does it impair the force of their testimony.
Again, it is a significant fact that Blanchard says the notes
were paid at maturity. He says nothing about negotiations
with Wads worth in reference to selling him the notes. If
that had been done, he certainly would have known the fact;
but he says he never sold them or ordered their sale. He
would surely have been consulted, or applied to, to sell them,
as he owned them until they wrere paid. He, however, says
he may have indorsed them to Eobbins & Sons for collection,
but authorized no sale.
Nor can it be reasonably inferred from the evidence on the
part of the defendants below, and much less when all of the
evidence in the case is considered, that Wadsworth purchased
the notes and kept the lien alive. It shows no such inten-
tion, but that they were paid in the usual course of business;
and William W. Kennedy swears that, when he received the
notes, he drew black lines, with ink, over the signatures. In
this, he is uncontradicted by any witness or circumstance.
We, then, have no hesitation in saying that the evidence
shows that the notes were paid, the debt discharged and the
notes canceled, before Dickey sold, and the Kennedys bought,
the premises.
It is a natural inference, from the circumstances as they
appear in this record, that, after the financial stringency set
in, James M. and William W. Kennedy being in business,
and needing means to carry it on, and to avoid failure,
resorted to the expedient of one of them going, with Wads-
worth, to see Dickey, and to request him to sell under the
trust deed, that they might purchase the lands and raise
money on them. This view of the case is greatly strength-
ened, when it is seen that the Kennedys paid nothing on their
purchase to the trustee; and it is strange that William W.
should, when prices were so greatly depressed, be anxious to
360 C, R. I. & P. E. R. Co. v. Kennedy et al [Sept. T.
Opinion of the Court.
have his interest, and that of his brothers and sisters, sold,
when he must have known the time was unfavorable, and it
would be at a great sacrifice, unless it was that he and James
might thus procure the land; and as the evidence shows that
they were borrowers at the time, we can not suppose they had
surplus means to invest in. real estate, whilst borrowing to
carry on their business as merchants. The most reasonable
conclusion is, that the plan was devised to resort to these
notes and the power contained in the trust deed, to place
themselves in a position to raise the $20,000, for the negotia-
tion of the loan of which they agreed to pay the enormous sum
of $3000 to Arrington, besides, we know not at what rate of
interest. This all shows that they were not in a position to
purchase real estate, and pay for it $5250 in hand; but by
inducing Dickey to sell for the amount of the satisfied notes,
they could thus obtain the appearance of title to the land, and
on it place themselves in funds.
It is urged, that the sale by Dickey having been made after
the debt to Blanchard was paid, it was void as to subsequent
purchasers, with or without notice. We think that, if the
debt was paid, the power to sell never became active or opera-
tive, and was undeniably voidable in the hands of the pur-
chasers, with notice of the payment. To hold otherwise,
would be to sanction fraud and oppression; and we suppose
no well considered case can be found, either in the British or
American courts, which holds that such a sale to such a pur-
chaser, or his grantee, with like notice, can be sustained as
against the person creating the trust, or those claiming under
him; but inasmuch as the person executing the trust deed
selects the trustee, and chooses to invest him with such large
powers over the title and his pecuniary interests, it may be
seriously doubted whether he should not be required to sus-
tain the injury flowing from the abuse of that power, rather
than an innocent purchaser, who is led to believe that he can
rely upon the integrity of the trustee chosen by the person
creating the trust. One of two persons must suffer the loss,
1873.] C, R. I. & P. R. R. Co. v. Kennedy et at. 361
Opinion of the Court.
and it would seem but equitable and just that it should be
borne by him who has enabled the trustee to commit the fraud,
or, from negligence or incapacity, has done the wrong.
To hold that the purchaser must, at his peril, know that
the debt is not paid, or lose the land and the money paid for
it, would seem to be a rule that would, in many cases, operate
harshly, if not very unjustly. The mere production of the
notes by the creditor would not prove the fact, as payment is
frequently made and receipts given, and the notes neither
taken up nor canceled; or the maker may be absent and
inaccessible to the purchaser, or a variety of contingencies
may be supposed, which would render it difficult, if not im-
practicable, to ascertain the fact. To so hold, would greatly
depreciate the price of the property, not only at the trustee's
sale, but in all others subsequently made, until the debt
should be barred by the Statute of Limitations, or a release
of the debt should be procured from the creditor; but there
are numerous respectable authorities which seem to announce
a different rule. In the view, however, which we have taken
of this case, we deem it unnecessary to decide this question,
as it is controlled by other and different well recognized
rules.
Are appellants bona fide purchasers? That they have paid
a sufficient consideration, is satisfactorily shown; nor can it
be successfully contended that they had actual notice of the
rights of appellees, before or at the time their agent purchased
the land ; but we think they were charged with such notice.
In Doyle v. Teas, 4 Scam. 202, the rule was stated that, " when
the court is satisfied that the subsequent purchaser acted in
bad faith, and that he either had actual notice or might have
had that notice had he not wilfully or negligently shut his eyes
against those lights which, with proper observation, would
have led him to knowledge, he must suffer the consequences
of his ignorance, and be held to have had notice, so as to
taint his purchase with fraud in law. It is sufficient if the
channels which would have led him to the truth were open
362 C., E. I. & P. R. R. Co. v. Kennedy et al [Sept. T.
Opinion of the Court.
before him, and his attention so directed that they would
have been seen by a man of ordinary prudence and caution,
if he was liable to suffer the consequences of his ignorance.
The law will not allow him to shut his eyes, when his igno-
rance is to benefit himself at the expense of another, when
he would have had them open and inquiring, had the conse-
quences of his ignorance been detrimental to himself and
advantageous to the other."
The same rule was recognized by this court in the cases of
Rupert v. Mark, 15 111. 541, McConnel v. Reed, 4 Scam. 123,
Merrichv. Wallace, 19 111.486, Morrison v . Kelly , 22111.610,
also, in Morris v. Hogle, 37 111. 150, and other cases in this
court; and the same rule is found in the adjudged cases both
in the British and American reports, and by various text-
writers. As to what acts are sufficient to put a party on
inquiry, the courts may have differed; but they are in har-
mony as to the rule, that whatever is sufficient to put a party
on inquiry which would lead to the truth, is in all respects
equal to, and must be regarded as, notice. Thus, where deeds
are recorded, a purchaser is put on inquiry as to the title, and
must be held to have examined the record and seen the deeds
thus recorded. Again, where recitals are contained in a deed,
in the chain of title, he will be presumed to have seen and
read it, because a prudent man is presumed to have examined
the title before he purchases, and has thus had such notice as
would put him on inquiry as to the nature and extent of the
claim or incumbrance referred to in the recital ; and it is his
duty to examine the record, and to ascertain what it contains
relating to the title, before he purchases ; and failing to do
so, he is charged with the consequences of his neglect.
Then, was there anything of record in the courts of Cook
county, or in the registry of deeds, disclosing the rights of
appellees, or which would have led a prudent man to inquire
where information could have been obtained of the nature
and extent of their claim ?
1873.] C., E. I. & P. E. E. Co. v. Kennedy et at. 363
Opinion of the Court.
There was on record a power of attorney, executed by
Sampson Kennedy to George E. Semple, which recited that
Wm. Kennedy died, leaving eight children, heirs at law, and
real estate, including this 60 acres, and that, by reason of cer-
tain acts and doings of James M. and others, the rights and
interests of Sampson, Theodore W. and Catharine, had be-
come involved ; also a mortgage from Sampson Kennedy,
executed on the 25th day of May, 1861, to Messrs. Farwell
& Smith, and another from Elizabeth and her husband, to the
same attorneys, in both of which it was recited that a suit
had been commenced in the Superior Court of Cook county,
by the mortgagors and others, against Westry and others, to
recover their interest in this land; that the suit referred to
was a bill filed by Elizabeth and her husband, and by appel-
lees by their next friend, Semple, which set up the facts as
they are stated in the bill in this case, and that this bill had
been dismissed, by agreement of counsel, without any finding
or adjudication whatever. This all appeared of record when
Winston purchased in t«rust for appellants, and they, through
the trustee, are chargeable with all that came to his knowl-
edge, or which he should have learned from the knowledge
he received.
It was said in Morris v. Hogle, 37 111. 150, that the law
presumes that a purchaser inspects the public records through
which title must be derived, before receiving a convey-
ance, and that he was chargeable with all that appeared
therein; and he was held, in that case, to have known that
the decree of the court was void for the want of jurisdiction
over the defendants. On the same principle, and for the
same reason, appellants must be presumed to have seen the
records in the recorder's office, and learned all that the deed,
mortgages and powers of attorney relating to this land dis-
closed. They could not trace title or ascertain whether there
were incumbrances on the land, without resort to these records*
The registry of deeds is created to enable all persons to do
so, and failing to avail themselves of the information thev
364 C, E. I. & P. E. E. Co. v. Kennedy et al [Sept. T.
Opinion of the Court.
afford, they are presumed to have assumed all the risk of want
of, or defects in, the title, and occupy the same position as if
they had inspected the record and learned all it discloses, as
well as such facts as it pointed them to, and they could have
learned, had they made the necessary inquiry.
This being so, they stand charged with all the records
disclosed, and all that they could have reasonably learned by
inquiry in the direction to which they pointed. The recitals
in the mortgages and power of attorney disclosed the fact that
appellees claimed an interest in this land, and unerringly
pointed to a bill which had been filed in the Superior Court,
and remaining on file therein, which fully disclosed the nature,
grounds and extent of that claim. They had but to call upon
the clerk of that court to have been fully informed of the
claim, and that the bill had been dismissed by counsel with-
out any adjudication or action of the court, or anything to
estop appellees from asserting their rights. This would also
have informed appellants that appellees were minors, and
not capable, in law, of binding or estopping themselves from
asserting those rights, and that whatever was done in dis-
missing the suit, was by their attorneys and their next friend.
These facts they could, on inquiry, have readily learned had
they not closed their eyes to these sources of information,
and they are as fully chargeable with notice of the rights of
appellees, as if they had received actual notice.
Nor could the next friend or their attorneys do any act, not
sanctioned by a decree of the court, which would estop appel-
lees in the assertion of their rights in this land. Being
minors, they could not have irrevocably bound themselves
by deed, not to sue for and recover their interest in the prem-
ises, nor could any other person place them in any worse
position. A next friend can only claim and pursue the rights
of a minor, and is powerless to yield or cede them to others.
And the same is true of their attorney. A court may, by
judgment or decree, bind them, but not attorneys or the next
friend. Nor does it appear from the order dismissing the
1873.] C, E. I. & P. E. E. Co. v. Kennedy et ah 365
Opinion of the Court.
bill that there was the slightest intention, on the part of any
one, that appellees were to be estopped or barred from assert-
ing their rights in the future. The order left all parties
occupying the same relation to each other as they did before.
We do not wish to be understood as asserting, however, that
appellants would have been required to examine this bill,
there then being no suit pending, had not the mortgages and
power of attorney have pointed to it as an unerring means
of learning the nature and extent of the claim of appellees.
On that question we express no opinion.
It is again urged that appellees are estopped by having
received a portion of the money derived from a sale of other
property, which was released from the Arrington or Westry
mortgage when the arrangement was entered into by the
parties, by which Farwell was to purchase this tract, and
convey it to Arrington, and the suit should be dismissed.
We can perceive no grounds on which to base an estoppel.
They were the owners, each, of one-eighth of the property on
Adams and South Water streets, and when they received a
share of the money for which it was sold, they received no
more, if even so much, as was their own. The sale by Dickey
was void as between them and the purchasers at that sale,
and Arrington and Westry released it from their mortgages,
but retained an amount amply sufficient to secure their debts,
and, being minors, they could not ratify and confirm that
arrangement, even by a deed or release, so as to prevent them
from subsequently suing for and recovering their interest in
the land, much less can they be estopped by simply receiving
a portion of the share of money to which they were legally
and justly entitled.
It is also urged that there has been laches in asserting their
rights by appellees. This suit was brought by them in about
four years after they came of age, and they swear that they
were ignorant of their rights until a short period before they
sued. This we can well presume, inasmuch as their guardian
and the administrators of their father's estate, who were their
366 C., K. I. &P. K. K. Co. v. Kennedy etal [Sept. T.
Opinion of the Court.
brothers, had wronged them so grievously, they would be
the last to call the attention of appellees to the fact that
they had betrayed their trust, had ignored the protection and
care of their interests which their relationship and position
required, and had neglected their duties. But even had they
been fully apprised of their rights, the delay is not regarded,
under the circumstances, unreasonable. No rights have been
acquired by other persons in the property, or material change
in the property occurred after they arrived of age, and before
the suit was brought.
We now come to consider what rights, if any, William
Kennedy has, under his cross-bill. All we have said as to
appellees, applies to him, except that his father, Alexander,
was of age at the time of the Dickey sale; that he was of age
at the time he joined Wm. W., George H. and James M. in
the trust deed to Hurd to secure Strauss, and in the trust
deed and mortgage to Arrington and LeMoyne. It is claimed
that the father of complainant in the cross-bill, by joining in
the execution of these deeds of trust and this mortgage, be-
came estopped from claiming any right in the premises, and
that the estoppel extends to and binds William, as his heir;
that if he inherited any claim to the 60-acre tract, he received
it with the estoppel, and can not now assert his claim. We
fail to perceive the force of the argument. When Alexander
joined in making these deeds, it was an assertion on his part
that he had an interest in the property, or why join in the
conveyances? And it is a fair inference, that the grantees
acknowledged that Alexander had some claim of title to the
land by receiving a deed from him.
Nor can it be fairly said that Alexander any more released
his claim thus incumbered, than did the other grantors their
title. They could, at any time, release their interest in the
land, by discharging the debt, and so could Alexander do the
same. Until foreclosed by sale under the power contained in
the deeds of trust or mortgage, or by decree and sale, their
right of redemption continued. When the debt was paid, to
1873.] C, E. I. & P. R. R. Co. v. Kennedy et al. 367
Opinion of the Court.
secure which the Hurd deed of trust was given, no one will
pretend that, had Alexander asserted title to an eighth part
of this land, the execution of the trust deed to Hurd could
have been set up as an estoppel to such a claim. When that
debt was paid, all of Alexander's rights were restored to the
same condition in which he held them at the time he joined
in making the deed. It then follows, that William was not
estopped, by any act done by his father, from coming in at
any time before the right of redemption was foreclosed, and
restoring to himself all of the rights in the premises which
his father held before making the Arrington mortgage and
the LeMoyne deed of trust.
Then, did the sale by LeMoyne, under the arrangement
entered into by the parties, and the purchase by Farwell, and
his sale to Arrington, affect William's rights? In Arling-
ton's hands, it could hardly be claimed that it would. But,
in the hands of an innocent purchaser for value, and without
notice, we are clearly of opinion that he is estopped. There
can be no doubt that the trustee, on default of payment, could,
in pursuance to the terms of the power, sell the premises, not-
withstanding the death of Alexander and the minority of his
son, William. And if the sale were regular, the purchaser
would take all the title held by the grantors. And even if
not, in all respects, regular, if the deed contained a recital of
a compliance with all of the requisitions of the power, a sub-
sequent purchaser without notice and for value would be
protected, and appellants occupy that position in this case.
The deed to Farwell from LeMoyne contains all the recitals
necessary to show a compliance with the terms of the power,
and the record is barren of anything to put appellants on
inquiry, to learn that the sale was made by such an arrange-
ment as would cut off competition. Nor is there any pretense
that they had actual notice. Having so purchased the inter-
est held by Alexander before his death, they are entitled to
protection in their purchase. Had proceedings been institur
ted before Arrington sold to Hyman, or had all of the remote
368 C.,K. Life P. RR. Co. ^.Kennedy et ah [Sept. T.
Opinion of the Court.
purchasers been charged with notice, then it may be that
William could have been let in to redeem under his cross-bill,
but that question is not before us for consideration.
Did Sampson's title pass, by these proceedings, to Arrington
and his grantees, freed from his claim, or may he avoid the
deed made by LeMoyne to Farwell as against remote grantees?
This depends upon whether he had any remaining right, or
has failed to resort to legal remedies in proper time to avoid
the effect of these several conveyances. We have seen that
the recitals in LeMoyne's deed to Farwell afford sufficient
prima facie evidence as'between him and the grantors in the
deed of trust under which the sale was made, and the pur-
chaser, that the sale was valid and in conformity with the
power of sale, and is conclusive as between the grantors in
the trust deed and all remote bona fide purchasers without
notice of irregularities, or of such facts as put them on in-
quiry that would have led to such knowledge.
Sampson arrived at the age of twenty-one on the 23d of
February, 1860. In the next autumn, he executed a power
of attorney to his brother-in-law, George E. Semple, author-
izing him to sue for and recover his interest in his father's
estate, with power to mortgage and incumber the same. He
again, in the month of May, 1861 executed a mortgage to
Farwell- and Smith, reciting that they had brought suit for
the recovery of his interest in his father's estate, and in
which he agreed to give them one-fifth part of whatever por-
tion of his interest might be recovered. It was this suit which
these attorneys settled and compromised by agreeing to the
sale of the premises under the trust deed and mortgage, at
which Farwell became the purchaser, and afterwards sold to
Arrington, and the suit was dismissed. Was Sampson bound
by this adjustment entered into by his attorneys at law and
in fact? We think he was. He was of full age when he
executed the warrant of attorney and the mortgage, and rati-
fied the employment of these atttorneys. They made the
compromise, of which he was duly informed when he re-
1873.] Palmer v. Ford. 369
Syllabus.
ceived his share of the proceeds of the compromise. He
made no objection to it, and acquiesced in the arrangement
for more than six years, before he questioned it by bringing
this suit. From these circumstances, we can only infer that,
if he did not, in fact, consent to the arrangement, he, by his
long delay before objecting to its terms, must be held to have
fully ratified the entire arrangement, and must be bound by
it. He could not, after such a long acquiescence, change his
mind, and retract. Had he been under disability when the
compromise was made, it would have been otherwise. But
he was of age, and under no disability,, and can not now be
heard to challenge the settlement of his claim.
We, after a careful examination of the objections, find no
grounds for setting aside the partition reported by the com-
missioners. It seems to be fair, reasonable and just. It may
not, in all respects, be as convenient or suitable to appellants
as some other would have been, but, had it suited them in all
respects, it perhaps would not have either suited the conve-
nience or interest of appellees. It was the duty of the com-
missioners to make a fair, equal and just division of the
property, and we can not say that it has not been done.
After a careful inspection of the record, and due consider-
ation of the legal questions involved, we have been unable to
perceive any error, and the decree must be affirmed.
Decree affirmed.
Potter Palmer
v.
Alvln" Ford.
1. Forfeiture. Forfeitures are not regarded by courts with any
special favor, and where a party insists upon a forfeiture, he must make
clear proof, and show he is entitled to it. It is a harsh way of termin-
ating contracts, and he who insists upon making a declaration of a for.
24— 70th III.
370 Palmer v. Ford. [Sept. T.
Opinion of the Court.
feiture, must be held strictly within the limits of the authority which
gives the right.
2. Where a lease conferred upon a party a clear right to declare a for-
feiture for non-payment of rent, if the power of declaring the forfeiture
was properly exercised, a bill filed by the lessee against the lessor, seeking
relief against such forfeiture, and to enjoin the lessor from prosecuting
suits at law for the recovery of the possession of the leased premises,
should not be entertained.
3. Same — notice. A lessee of a lot of ground erected a building there-
on, under the terms of the lease, for the purpose of renting the same to
other tenants. The lessor reserved the right to declare a forfeiture of the
lease for default in payment of the ground rent, as it should become due.
Several instalments of rent became due, but the lessor, at the instance of
the lessee, waived his privilege to declare a forfeiture, and did not press
the lessee for payment for more than a year, other than in receiving rents
from the tenants of the building, which had been provided for by agree-
ment of the lessee. Moreover, negotiations had been going on for an
adjustment of the matter of the ground rent, and the lessor had evinced
a disposition to favor the lessee in that regard. It was held, that under
these circumstances, notwithstanding the lessee had, by the terms of the
lease, expressly waived the right to any notice of an intention on the part
of the lessor to declare a forfeiture, yet he should have notice before such
declaration could properly be made.
Appeal from the Superior Court of Cook County ; the
Hon. Joseph E. Gary, Judge, presiding.
Mr. C. M. Harris, for the appellant.
Mr. H. T. Steele, for the appellee.
Mr. Justice Scott delivered the opinion of the Court:
This was a bill for an account and relief. In 1869, appel-
lee took a lease of appellant for certain lots, in which an
annual ground rent was reserved. The lease was to run for
five years, with the privilege of renewal for a like period on
the terms stated. It contained a clause authorizing the lessor,
at his election, to declare a forfeiture for non-compliance with
its provisions. It was intended, also, to provide, the lessee
waived any right to notice of an intention to declare a for-
feiture, but, by a clerical mistake, the lease reads, "the party
1873.] Palmer v. Ford. 371
Opinion of the Court.
of the first part," the lessor, waives such notice. The con-
text, however, conclusively shows it was the lessee that waived
his right to notice.
It was the intention of the lessee, when he procured the
lease, to erect buildings upon the premises, for rental pur-
poses. Provision was made for the removal, at the termina-
tion of the tenancy. In pursuance of that purpose, appellee
commenced to erect upon the premises a block consisting of
three buildings, each three stories high. The ground floors
were designed for store rooms, and the upper rooms for
dwellings. Appellee was much embarrassed for want of means
to finish the buildings, but, by the winter of 1870 and 1871,
some of the rooms were so nearly completed they were occu-
pied by tenants, and the lessee began to realize some income
from them.
The material-men and carpenters were unpaid. An arrange-
ment had been made with Winn and England, who had per-
formed labor in the construction of the building, they might
retain certain rooms and the rents accruing therefrom, until
the amounts respectively due them should be discharged.
They were, accordingly, let into possession.
No ground rent had been paid, unless $25 was paid at the
execution of the lease, nor was any effort made by the lessor
to declare a forfeiture prior to the 10th day of February,
1871. There was then due over $1200 for ground rents.
Appellant claims, on that day, the 10th day of February,
by virtue of the power reserved, he elected to and did declare
the lease forfeited for non-payment of rents, and caused his
agent, Winchester Hall, to serve a notice on appellee of such
declaration. It is also claimed the tenants occupying the
premises, by the direction of appellee, attorned to appellant,
and from thenceforward, Hall, as his agent, received the rents,
as the same became due, from the several tenants. Appellee
was then occupying a suit of rooms in the building, with his
family, and it is said be became a tenant of appellant.
372 'Palmer v. Ford. [Sept. T.
Opinion of the Court.
On the other hand, it is claimed no forfeiture of the lease
was ever taken by the lessor. Appellee insists that, prior to
the 10th of February, he made application to the agent, Hall,
to collect the rents in reduction of the ground rents then due ;
that Hall said he would refer the matter to Mr. Palmer; that,
at the next interview with him, he said he had seen Mr.
Palmer, and it could be done. This was in December or Jan-
uary. Appellee claims it was in pursuance of that agree-
ment, and none other, that he, on the 10th day of February,
went around, with Hall, to the several tenants, and directed
them, except Winn and England, thereafter to pay rent to
Hall, as agent of appellant. It is also claimed appellee made
an arrangement with appellant's agent, to complete the build-
ings for him, and whatever was expended in and about the
work, should be reimbursed, either out of the rents or other-
wise.
The evidence offered by the parties, in support of the re-
spective positions assumed, is in direct conflict, and is totally
irreconcilable. The only facts about which there does not
seem to be any dispute, are, that the buildings were, in fact,
completed by appellant, and that such rents as had been col-
lected, were received by his agent. The amount of the
receipts and expenditures is among the disputed facts.
Appellee continued on the premises, without paying any
rent for the particular tenements occupied, as other tenants
were required to do. On the 9th day of December, 1871,
notice was served on him to quit that portion of the building
in which he then resided. Actions had been commenced
against several other parties occupying portions of the build-
ing under leases from appellee, to dispossess them. This
bill was then filed to enjoin the further prosecution of those
suits, and for account of receipts and disbursements on ac-
count of the property.
The right to relief is based on the ground there had been
no forfeiture of the lease ; that there had never been any
surrender of the premises ; that appellant had collected the
1873.] Palmer v. Ford. 373
Opinion of the Court.
rents under a distinct agreement to apply the same in reduc-
tion of the ground rents due and to become due; that appel-
lant would finish up the building for appellee, and, for his
expenditure in that behalf, he was to be reimbursed, and
because the amount of the receipts and expenditures is
unknown, appellee prays an account shall be taken. Appel-
lee offers, by his bill, to pay whatever shall be found to be
due for disbursements, or for ground rents, and asks to be
restored to full possession of the premises under the lease.
Appellant, in his answer, insists there was a distinct decla-
ration of forfeiture of all the rights of the lessee, on the 10th
day of February, 1871 ; that he voluntarily surrendered posses-
sion of the premises to Hall, as agent of appellant; that the
building was afterwards finished for himself, and that appellee
had no further interest therein, except as a tenant from month
to month, at a reasonable rent.
The court, on the hearing, decreed relief, and, by an inter-
locutory order, directed appellee immediately to pay the
amount that should be found due, to appellant, and, in default
thereof, his bill should be dismissed. The court further de-
creed, on the payment thereof, appellant should surrender full
possession of the premises to appellee. The cause was then
referred to the master, to state the account between the par-
ties on the basis of the interlocutory decree. On the coming
in of the master's report, both parties filed exceptions, all of
which were overruled, except the third, taken by appellant.
The court found there was due him $1327.05, and decreed,
upon the payment thereof, appellant should surrender the full
and complete possession of the premises to appellee, that he
might thenceforward hold the same under the lease of 16th
of October, 1869.
Both parties are dissatisfied with the amount of the decree,
but we are unable to detect any substantial error in the find-
ing of the court. There is certainly no such error as can
seriously affect the rights of either party. The only question
374 Palmer v. Ford. [Sept. T.
Opinion of the Court.
about which there is any difficulty, is, whether the court
properly entertained the bill.
The lease conferred upon appellant the clear right to de-
clare a forfeiture for the non-payment of rents, and if the
power reserved was properly exercised, then the bill ought to
have been dismissed ; but if there was no declaration of for-
feiture, and the contracts alleged, in regard to the collection
of rents and the completion of the buildings, were made, then
there were clear grounds for equitable relief.
As we have before remarked, the testimony on these vital
points is totally irreconcilable. The court below was, no
doubt, compelled to reject much that was testified to by the
witnesses on either side, and must have relied upon the acts
of the parties as affording the only solution of the case. We
are inclined to agree with the court, that the facts which must
be regarded as proven, considered in connection with the acts
of the parties aboutwhich there can be no misunderstanding,
are inconsistent with the theory advanced by appellant, viz:
that there was a declaration of forfeiture of the lease, followed
by a voluntary surrender of the premises.
There was clearly no effort to collect promptly the ground
rent secured by the lease. The delay may have been, and
doubtless was, for the benefit of appellee, and by reason of
his importunities. It is certain, great indulgence was granted
to him, which is conceded by the answer and abundantly
established by the testimony of both parties. There was but
little doubt it was done to enable appellee to extricate him-
self from the difficulties he had experienced in procuring the
funds with which to complete the work he had undertaken.
It is claimed, the declaration of forfeiture was made on the
10th day of February, 1871. Previous to that time, no
notice of an intention to declare a forfeiture had been given,
unless it was by the casual remark of Hall, that, unless the
ground rents were paid, he would have to declare a forfeiture.
But it is not insisted any specific notice of such an intention
was given.
1873.] Palmer v. Ford. 375
Opinion of the Court.
Negotiations had been going on between the parties for an
adjustment of the difficulty. The propositions of appellee
had been so favorably received, that neither the lessor nor
his agents had pressed him for the ground rents for more than
a year, other than such as were received from the tenants of the
building. It is said no notice under the lease was necessary,
for the reason appellee had expressly waived his right to
notice. It may be conceded such is the provision of the lease,
but that fact would hardly excuse the want of notice, under
the circumstances of this case.
Appellant had not elected to declare a forfeiture as the
instalments of the rents severally became due, but had uni-
formly waived that privilege as favor to appellee, on his soli-
citation. No new instalment had become due, but, if a
declaration of forfeiture was made, it was for all the previous
unpaid rent. In the event the lessor had suddenly changed
his purpose) to grant no further accommodation, good faith
certainly required he should give some definite and specific
notice of such change. Without any previous notice, other
than the casual remark of the collecting agent, for it is con-
ceded Hall had no specific directions from appellant, it is
insisted Hall, on the 10th day of February, read to appellee
a declaration of forfeiture; that appellee, without making
the slightest objection to the sudden termination of all nego-
tiations for further accommodations, immediately went round
with the agent, and notified the tenants to pay rent to him,
and agreed, himself, to become a tenant to appellant. This
is the most singular fact in the case, yet it is positively sworn
to by Hall, and equally as positively denied by appellee. It
must be admitted there are some things in the record that
tend to support the testimony of both witnesses. So far as
an appellate court can know, the witnesses on either side are
of equal respectability, and we are unwilling to believe that
any of them testified to anything they did not honestly be-
lieve, although they may have been mistaken in their recol-
lections. The court below heard this conflicting testimony
376 Palmer v. Foed. [Sept. T.
Opinion of the Court.
in open court, from the several witnesses, and could better
judge, than we, of the weight to be given to it. For that
reason, we are inclined to attach weight to the finding of the
court on the doubtful facts.
The only rational explanation that occurs to us, that can
be given to the transaction, is that which is given by appellee,
in his testimony, that, if a declaration of forfeiture was read
to him, he did not understand it was done for the purpose of
terminating his rights under the lease, but in furtherance of
the arrangement he supposed he had made, to let Hall collect
the rents and apply the same in reduction of the ground rents
due the lessor. This is consistent with the acts of the parties.
The proof shows appellee had expended between $3000 and
$4000 upon the work. He had expended all he could, by
any possibility, raise, and had incurred large liabilities in
addition, and yet we are told, when this declaration of forfeit-
ure was made, that would cut off all his rights to the entire
property, and, as the agent suggested, would leave it question-
able whether it would not bar the rights of parties having
liens upon it, and pass the title of the whole property to his
principal, he made no kind of objections, either on behalf
of himself or of his creditors, but voluntarily surrendered
the property. This seems to us most singular conduct. Be-
sides, his whole subsequent conduct is irreconcilable with the
idea he could have understood there was any declaration of
forfeiture that would bar his rights under the lease. He still
manifested the same interest in the enterprise as before. He
continued to do all he could to advance the work, and his
letter to appellant, of July, 1871, proves most conclusively
he did not know then the agents of the lessor claimed there
had been a forfeiture of the lease.
The interest of appellee in the premises, on the 10th of
February, was worth many times the amount of ground rents
then due the lessor. It was all the property appellee had or
claimed to have, and it seems strange, indeed, if he heard the
sudden and unexpected declaration that deprived him of it
1873.] Palmer v. Ford. 377
Opinion of the Court.
in an instant, that he would utter no complaint or word of
surprise, or make an effort to secure any portion. The witness
Hall says he did neither, and manifested no concern, when
he read him the declaration of forfeiture, but, without exact-
ing any explanation, introduced him to the tenants, and
assisted him to make memoranda showing when the rents
would become due, and the amount each tenant was to pay.
Unless we regard the theory, that Hall was simply to collect
the rents and apply the same to the payment of ground rents
due the lessor, as having been established by the evidence,
there is nothing that affords any rational explanation of the
conduct of appellee, both at the time and his subsequent deal-
ings with the property. This we are inclined to do.
Forfeitures are not regarded by courts with any special
favor. The party who insists upon a forfeiture, must make
clear proof, and show he is entitled to make such declaration.
It is a harsh way of terminating contracts, and not infre-
quently works great hardships, and he who insists upon
making such declaration, can not complain if he is held to
walk strictly within the limits of the authority which gives
the right.
We think the decree of the court is sufficiently sustained
by the evidence. There is not that clear and distinct evi-
dence that a declaration of forfeiture was rightfully made,
that the law undoubtedly requires.
This view will render it unnecessary to discuss other ques-
tions raised by counsel in their argument.
The decree will be affirmed.
Decree affirmed.
378 Kelly et al. v. Donlin et al. [Sept. T.
Syllabus.
James Kelly et al.
V.
John Donlin et al.
1. Statute of Limitations — claim and color of title under the limita-
tion law o/1839. A claim of title under a regular chain of conveyances,
commencing with an administrator's deed, which was invalid, and extend-
ing through a series of years, when it appears that valuable considerations
have been paid for the various conveyances, and the parties to such con-
veyances have, during all the time, dealt with the land as their own, con-
stitutes claim and color of title made in good faith, and, coupled with
possession and payment of taxes for seven consecutive years, forms a bar
to a suit for the recovery of the land, under the Limitation Act of 1839.
2. Same — what will avoid the operation. If the owner of the paramount
title to land is enjoined, at the suit of one in possession, from setting up
or insisting upon any title or interest in the land, such injunction will
afford sufficient equitable ground for not allowing the running of the
statute to ripen into a bar of the owners right, whilst such injunction was
in force.
3. Former adjudication. A valid judgment for the plaintiff sweeps
away every defense that should have been raised against the action ; and
this, too, for the purposes of every subsequent suit, whether founded up-
on the same or a different cause.
4. A judgment which affects directly the estate and interest in land,
and binds the rights of the parties, is at least as effectual as a release
or confirmation by one party to the other. Such an estoppel makes part
of the title, and extends to all who claim under either of the parties to it.
It runs with the land, and extends to all who are privies in estate to either
of the parties.
5. A bill in chancery, amongst other things, alleged that, by means of
a sale made by an administrator, the heirs of the decedent were divested
of all their interest in the land, except the naked legal title, and the prayer
was, that the sale of said land made by the administrator be decreed to
have vested in the purchaser all the estate, right and title in the land
whereof the decedent died seized, and which, upon his death, became
vested in his heirs, and that such heirs be enjoined from setting up or
insisting on any right, title or interest in the land. A decree was ren-
dered which found that the estate of the decedent in the land became
vested in the purchaser at the administrator's sale, and ordered the heirs
to convey, etc: Held, that this decree was conclusive of the rights and
title of the heirs, and that the fact that the only specific objection made by
1873.] Kelly et al. v. Donlin et al. 379
Opinion of the Court.
the heirs or considered in said suit, as to the validity of said administra-
tor's sale, was, whether their ancestor died seized of such an estate as
could be sold for the payment of his debts, does not change or lessen the
conclusiveness of the decree. If any other objection existed to said
administrator's sale, they should have made it in that suit; and having
failed to do so, they are estopped from insisting upon it in another suit
about the same laud.
6. Jurisdiction — may be acquired by appearance, without service. Where
a husband and wife employed an attorney, and authorized him to bring an
ejectment suit for the recovery of their land, and a bill in chancery was
filed, and an injunction granted, staying the prosecution of such suit, and
the attorney filed an answer, for the husband and wife, to such bill, the
court thereby acquired jurisdiction of their persons, for the purposes of
such injunction suit, although no summons or return may appear in the
record.
Appeal from the Circuit Court of Cook county ; the Hon.
E. S. Williams, Judge, presiding.
Messrs. Ayer & Kales, for the appellants.
Messrs. Eosenthal & Pence, for the appellees.
Mr. Justice Sheldon delivered the opinion of the Court :
This was a bill in equity, for partition, filed by John Don-
lin and Catharine J. Crouse, heirs of John Donlin, senior,
against James Kelly and David Mergentheim, and others, the
bill alleging that, by reason of the death of their father,
John Donlin, intestate, leaving the complainants and Mary
Donlin, his children, surviving, and, also, by reason of the
death of the said Mary, leaving them and their mother, Julia
Donlin, surviving, they, the said John and Catharine, each
became seized in fee of the undivided five-twelfths of the
premises in question, and that the said Kelly and Mergen-
theim, by reason of a conveyance to them by the said Julia
of the share she inherited from her daughter Mary, became
seized of the undivided two-twelfths of the premises.
The decree of the court below found that Catharine J.
Crouse had no interest in the property; that John Donlin
had an undivided five-twelfths interest therein, and that
380 Kelly et al. v. Donlin et al. [Sept. T.
Opinion of the Court.
Kelly and Mergentheim owned the remainder, an undivided
seven-twelfths, and partition was decreed accordingly.
Kelly and Mergentheim have appealed, and Catharine
Crouse has assigned cross-errors, asking the decree to be
reversed as to her.
Kelly and Mergentheim set up title to the whole premises,
under a purchase of them by one Lally, at an administrator's
sale for the payment of the debts of John Donlin, senior, de-
ceased.
The title acquired under that sale has been decided by this
court to be invalid, and the proceedings in administration,
whereby it was effected, to be void, for the want of notice to
the heirs of Donlin. Donlin v. Hettinger et al. 57 111. 348.
Kelly and Mergentheim further set up the Statute of Lim-
itation of 1839, as a bar of all claims of the heirs of Donlin
to the land.
The deed of the administratrix to Lally was made August
1, 1851.
November 10, 1854, Lally conveyed the premises to James
Donohue.
July 22, 1856, Donohue contracted to sell the property to
Hettinger and Oertel, for $8000. Oertel, after receiving the
contract, in order to secure a certain indebtedness, made a
deed of trust to one Strauss of an undivided half of the
premises. About the same time, Hettinger, to secure an
indebtedness to Kelly and Mergentheim, made a deed of
trust to Burgess of the other undivided half. The indebted-
ness secured by both deeds of trust was owned by Kelly and
Mergentheim.
On December 19, 1859, Strauss and Burgess, in execution
of the powers of sale contained in the trust deeds, sold and
conveyed, each, an undivided half of the premises to Kelly
and Mergentheim.
Also, on May 29, 1860, one Freer, as special commissioner,
under an order of court, in a proceeding against the heirs of
Donohue, the amount due under the contract with Donohue
1873.] Kelly et al. v. Donlin et al 381
Opinion of the Court.
having been fully paid, executed a deed to Kelly and Mer-
gentheim purporting to convey to them the whole of the
premises.
There can be no question, that, under the decisions of this
court, there were here claim and color of title in Kelly and
Mergentheim, made in good faith. It is admitted by the
appellees that Kelly and Mergentheim went into possession
of the premises in 1860, and continued such possession, and
paid all taxes legally assessed thereon, for seven consecutive
years. This, under the Limitation Act of 1839, forms a legal
bar of appellees' claim to the land.
But, in avoidance of its operation in the present case, the
appellees set up that they were all that time under an injunc-
tion, which prohibited them from maintaining a suit for the
recovery of the possession.
On the 5th of August, 1859, the appellees, John Donlin
and Catharine, brought an ejectment suit in the Superior
Court of Chicago, against Hettinger and Oertel, to recover
possession of the premises. At the October term, to-wit:
October 3, 1859, Hettinger and Oertel filed their bill in
chancery, in said court, against the said John Donlin and
Catharine, for an injunction to restrain the prosecution of the
ejectment suit, and, on the 17th day of November, 1859, a
decree was entered in the chancery cause perpetually enjoin-
ing the said John and Catharine from prosecuting that eject-
ment suit, and from ever setting up or insisting upon any
estate, title or interest in the land adverse to Hettinger and
Oertel, and from commencing any other suit to recover the
possession of the land. This is the injunction referred to.
Courts of equity interfere, in many cases, to prevent the
bar of the Statute of Limitation being set up where it would
be inequitable or unjust. 2 Story Eq. Jur. sec. 1521 ; Doughty
v. Doughty, 2 Stockt. 347 ; Henry County v. Winnebago Drain.
Company, 52 111. 300.
It would be unconscientious for a party to take advantage
of the holding possession of land for a certain term, to defeat
382 Kelly et al. v. Donlin et ah [Sept. T.
Opinion of the Court.
another's right thereto, when the latter, by procurement of
the former, had been enjoined by a court, during all the time,
from prosecuting and bringing suit for the recovery of the
possession. One principle upon which courts of equity give
relief, is, to prevent an advantage gained at law from being
used against conscience.
But it is answered, that possession alone did not create the
bar, but possession coupled with the payment of taxes, and
that the Donlin heirs might have arrested the running of the
statute, by paying the taxes; that they were not restrained
from doing that.
The injunction was, not to set up or insist upon any estate,
title or interest in the land. Paying taxes is, under the stat-
ute, under certain conditions, a mode of defeating and of ac-
quiring title to real estate, and it would seem like the asserting
of an interest in land.
We are not prepared to say that the appellees might not
reasonably suppose that an implicit obedience to the injunc-
tion required that they should refrain from paying taxes on
the land. Besides, it is not certain that they could have
stopped the running of the statute by payment of the taxes.
Whether they would be able to first pay them, might depend
upon the result of a race of diligence with the possessors of
the land, who were interested in paying the taxes themselves,
that they might strengthen their possession into a bar under
the statute. The only sure, effective mode of arresting the
running of the statute was, by bringing suit for possession,
and that was enjoined.
We are disposed to regard the existence of this injunction
as a sufficient equitable ground for not allowing the bar of
the Statute of Limitation here set up to prevail.
This, then, leaves the title to John Donlin's interest in the
land whole, as it descended to him. There is nothing to
affect it.
But with Catharine J. Crouse it is different.
The injunction suit before referred to was taken by writ
1873.] Kelly et al. v. Donlin et al. 383
Opinion of the Court.
of error to this court, and the decree reversed as to John
Donlin, the case being the one above cited of Donlin v. Het-
tinger et al. 57 111. ; but as to Catharine Crouse, then Catharine
Fitzgerald, the writ of error was dismissed, as not having
been brought within time as to her. So that the decree in
that injunction suit remains in full force against her, and it
is relied upon, by the appellants, as a conclusive adjudica-
tion against her interest.
To that bill, brought by Hettinger and Oertel, John
Donlin and Catharine J. Crouse, heirs of John Donlin, senior,
Malachi and Daniel Donohue, the children and only heirs
of James Donohue, deceased, Strauss, Burgess, and Kelly
and Mergentheim, were made parties defendant. The bill
was for specific performance as to some of the parties, the
Donohues, and for a perpetual injunction against the heirs
of Donlin, to prevent them from further prosecuting the
ejectment suit against the complainants in the bill. The
bill set out, among other things, the administratrix's proceed-
ings for the sale of the land to pay the debts of Donlin,
deceased, the sale and deed of the administratrix to Lally,
the deed of Lally to James Donohue, the contract of Donohue
to sell the property to Hettinger and Oertel for $8000, pos-
session thereupon taken by the latter, their payment of taxes
to the time of the bill filed, and payment of §5000 on the
contract, and their readiness to pay the balance, and then
alleged that, by reason of the above, the complainants ought
to be decreed and held, upon payment of the amount remain-
ing due under their contract with Donohue, to be the abso-
lute owners of the land, without further molestation from the
heirs of John Donlin. The bill also set out the making of
the trust deeds to Strauss and Burgess, after the contract of
sale by Donohue, to secure a debt to Kelly and Mergentheim,
who were, therefore, made parties. Hettinger and Oertel
prayed, in the bill, specific performance from the heirs of
Donohue, and a deed from John and Catharine, the heirs of
Donlin, who, as yet, (according to the theory of the bill.) held
384 Kelly et al. v. Donlin et al. [Sept. T.
Opinion of the Court.
the naked legal title conveyed to the heirs by Bnshnell.
Bushnell had made a deed of the land to the heirs of John
Donlin, after the death of the latter, Donlin having purchased
and paid for the land in his lifetime. The bill also prayed
that the administratrix's proceeding and sale be decreed to
have vested in Lally the estate, right, title and interest in the
land whereof Donlin died seized, and which, upon his death,
became vested in his heirs, and that the heirs of Donlin be
barred and enjoined from setting up or insisting upon any
right, title or interest in the land.
The decree, in addition to the portion of it before referred
to, found that, by the administratrix's sale and deed, the estate
and interest of Donlin, senior, became vested in Lally, and
that the heirs of Donohue were entitled to conveyance thereof,
subject to the equities of the complainants under their con-
tract with James Donohue, and a deed was decreed accord-
ingly from John Donlin and Catharine, and Freer was
appointed a special commissioner to make a deed for them in
case of their default; and it was also decreed that Hettinger
and Oertel, or their assigns, be at liberty to come in on the
foot of the decree, and, upon proving payment of the sum
due under the contract with James Donohue, to compel a
conveyance to them from Daniel and Malachi Donohue, the
heirs of James Donohue.
There hardly seems room for question, that such a decree,
under a bill containing such allegations, would conclude the
right of Catharine, and protect Hettinger and Oertel, if they
were the defendants in this suit, and in adverse possession of
the land. The decree shows that she has nothing in the
premises.
It is urged, that as the only specific objection to the valid-
ity of the administratrix's proceedings taken or considered
in the injunction suit was, whether Donlin died seized of such
an estate as could be sold for the payment of his debts,
that was the only issue involved in the suit, and did not
preclude inquiry, in another suit, whether the proceedings
1873.] Kelly et al. v. Donlin et al. 385
Opinion of the Court.
were not void for want of jurisdiction of the person of the
heirs. But the assertion of the bill was, that by means of
the administratrix's sale, the Donlin heirs were divested of
all their interest in the land, (except the naked legal title,)
and that it became vested in the purchaser at such sale,
through whom the complainants were claiming. The Donlin
heirs were called upon to defend their right as against those
proceedings, and they should have brought forward all the
objections which there were to be urged against the validity
of the sale.
Although there was a fatal objection of the want of juris-
diction, which was* overlooked, and not at all considered, it
could not be raised in another suit. The decree settled the
question of the validity of the sale. Mr. Bigelow, in his
work on Estoppel, in a note on page 46, thus states the doc-
trine : "It follows, also, from the authorities considered,
that a valid judgment for the plaintiff sweeps away every
defense that should have been raised against the action • and
this, too, for the purposes of every subsequent suit, whether
founded on the same or a different cause. Nor will equity
relieve the defendant from a judgment on any ground of
which he should have availed himself in the action at law."
And see Rogers v. Higgins et al. 57 111. 244.
But it is insisted that, although such was the effect of the
decree as to Hettinger and Oertel, the complainants in that
suit, it is otherwise as to Kelly and Mergentheim — that
there is not such a privity of estate between the latter and
the former, as causes the decree to have the same conclusive
effect in favor of Kelly and Mergentheim ; that in order that
the decree should have that effect, they must have acquired
their interest subsequent to the decree, according to Campbell
v. Hall, 16 N. Y. 575; and it is asserted that the interest of
Kelly and Mergenthiem accrued to them by virtue of the
trust deeds executed to Burgess and Strauss by Hettinger
and Oertel, prior to the institution of the suit in the Superior
Court by Hettinger and Oertel. But on the 19th day of
25— 70th III.
386 Kelly et al. v. Donlin et ah [Sept. T.
Opinion of the Court.
December, 1859, after the decree was rendered, Kelly and
Mergentheim purchased the interest of Hettinger and Oertel
from Strauss and Burgess in foreclosure of the trust deeds.
In the case of Adams v. Barnes, 17 Mass. 365, in reference to
the effect of such an estoppel as is claimed here, Mr. Justice
Jackson, in delivering the opinion of the court, said : " It
is such an estoppel as runs with the land, and extends to
all who are privies in estate to either of the parties to such
judgment. A judgment which affects directly the estate
and interest in the land, and binds the rights of the
parties, is at least as effectual as a release or confirmation
by one party to the other. Such an estoppel makes part
of the title, and extends to all who claim under either
of the parties to it." Prior to the foreclosure sales, Het-
tinger and Oertel were in reality the owners -of whatever
interest they ever had in the land, subject to a lien thereon
in favor of Kelly and Mergentheim, for the payment of the
indebtedness due them ; and when the latter purchased the
land at the foreclosure sale, they purchased it with the ben-
efit of the estoppel attached to it. Under our statute, where
there is a conveyance purporting to convey an estate in fee
simple in land, and the vendor is not possessed of the legal
estate, or interest therein, but afterward becomes possessed
of and confirmed in the legal estate, it inures to the use of
the grantee, and the conveyance is rendered as valid as if the
grantor had the legal estate at the time of the conveyance.
We do not perceive why not also, under this statute, the
benefit of this estoppel confirming Hettinger and Oertel in
the legal estate to this land as against the Donlin heirs,
should not be transferred to the prior grantees, Strauss and
Burgess, and the effect be the same as if the deeds to them
had been made subsequent to the decree.
We are of opinion that the decree has the same conclusive
effect in favor of Kelly and Mergentheim, as privies in estate,
that it has in favor of Hettinger and Oertel.
1873.] Kelly et al. v. Donlin et al. 387
Opinion of the Court.
It is objected, against that decree, that the court had no
jurisdiction, of the person of Catharine Fitzgerald, now Crouse.
Neither summons nor return appears in the record, nor does
the court find that it had jurisdiction of her person. The
bill was filed October 3d, one of the days of the October
term, 1859. Her demurrer, by William B. Snowhook, her
solicitor, as also her husband's, by the same solicitor, is filed
October 13, 1859. It is insisted that under such circum-
stances, there could have been no jurisdiction — that neither
she nor her husband could appoint an attorney for her, and
that she could be brought into court only by the service of
process. It appears, from the testimony of Mr. Snowhook,
whom the complainants called as a witness on the hearing,
that he was retained as counsel, in 1859, by the widow
and heirs of Donlin, senior, to bring the action of ejectment
against Hettinger and Oertel, for the possession of the prem-
ises; that he brought it in the month of August, 1859, as
their attorney; that Catharine, then the wife of Fitzgerald,
was cognizant of, and authorized the bringing of the suit in
ejectment; that she was aware of the suit brought to enjoin
the prosecution of that action ; that she, with her husband,
lived very near to the residence of the witness, and that he
frequently talked with her about the suit. Her husband
had the right to bring suit in ejectment in his name and her
own to recover her lands; at that time, he had the right to
the use after the lands were reduced into possession. The
suit in chancery was but a mode of defense to the ejectment
suit, adopted by Hettinger and Oertel. And in cases where
the wife has a separate property, it is often stated that, in
respect to this property, she may sue and be sued as a feme
sole. Story's Eq. PL sec. 63.
The appearance here, by attorney, we consider as having
been authorized both by the wife and husband ; and such
appearance to a suit already commenced against the wife and
her husband, we can not say did not give the court jurisdic-
tion of the person of the wife, even although the appearance
388 The People ex rel. v. Weight. [Sept. T.
Syllabus.
was before service of process was had upon her. There was
an obvious reason here for the entry of such premature
appearance, in order to remove, as speedily as possible, the
bar of the injunction to the prosecution of the pending eject-
ment suit.
There is an attempt made to impeach that decree, as hav-
ing been obtained by fraud and collusion. But we do not
find the allegations of the bill, in that regard, to be sustained
by the proofs.
We find, then, that decree in the injunction suit in the
Superior Court of Chicago to be a valid decree against the
appellee, Catharine Crouse, in full force, and conclusive against
her right.
Perceiving no error in the record, the decree must be
affirmed.
Decree affirmed.
The People ex rel. Ernst F. C. Klokke
V.
Levi P. Weight.
1. Commissioners of the board op police of the city of Chicago.
The commissioners of the board of police of the city of Chicago are
members of a board organized under an amendment of the charter of the
city of Chicago, and are included in the first section of the act, in force
July 1, 1872, commonly known as the Mayors' bill.
2. The board is the creature of legislation, and the legislature can, in
their discretion, provide how the commissioners shall be selected or
appointed, and may change the mode from time to time, as the welfare
of the city seems to demand.
3. The rule ordinarily is, that where the right is once given to elect to
a particular office, it is not subsequently withheld, and the office filled
by appointment, yet this is but practice, that may be departed from, the
constitution being silent on the subject, whenever the legislature sees fit
so to do.
4. The individual commissioner of the board of police, as such, pos-
sesses no official authority, and is not a city officer.
1873.] The People ex rel. v. Wright. 389
Statement of the case.
5. Statute — whether it is an amendment of another act, unless so ex-
pressed in its title. The mere fact that an act does not, in its title,
profess to amend a city charter, is unimportant; it is an amendment
if it professes to, and does, enact that which makes new organic law for
the city government.
6. Constitutionality of the "Mayors' bill" — as embracing more than
one subject. The Mayors' bill is not in conflict with section 13, article 4,
of the constitution, as embracing more than one subject; the entire act
relates to a single general subject, which is sufficiently expressed in the
title, namely: the duties of mayors in cities, and there is nothing incon-
gruous in its different provisions.
7. Constitutional law — mode of amending statutes. The clause of
the constitution which says, "no law shall be revived or amended by
reference to its title only, but the law revived, or the section amended,
shall be inserted at length in the new act," can not be held to embrace
every enactment which in any degree, however remotely, affects the
prior law on a given subject. An act complete in itself, is not within the
mischief designed to be remedied by this provision, and is not prohibited
by it.
8. Same — special legislation. A local or special statute is limited in
the object to which it applies; a temporary statute is limited merely in
its duration ; a local or special law may be perpetual, or a general law
may be temporary; the Mayors' bill is neither local nor special — it is a
temporary general law, and is not within the provision of the constitu-
tion prohibiting special legislation.
Appeal from the Criminal Court of Cook county; the Hon.
John G. Rogers, Judge, presiding.
This was a proceeding in the nature of a quo warranto.
The information charges that the defendant usurped the office
of a commissioner of the board of police, in the county of
Cook, and State of Illinois. The defendant pleaded to the
information that he was rightfully acting as one of the com-
missioners of the board of police, by virtue of an appoint-
ment made by the mayor of the city of Chicago. To this
plea two replications were filed : one, that the relator had
been duly elected to said office by a vote of the people of
Cook county, and had qualified and was acting as such
officer at the time of the alleged appointment of the defend-
ant, and that defendant had unlawfully evicted him ; the
390 The People ex rel. v. Weight. [Sept. T.
Opinion of the Court.
other, that the appointment of defendant by the mayor was
not legally made. A general demurrer was sustained to both
replications, and a judgment for costs rendered against the
relator.
Messrs. Goudy & Chandler, for the appellant.
Mr. M. F. Tuley, Mr. John Lewis, and Mr. I.N. Stiles,
for the appellee.
Mr. Justice Scholfield delivered the opinion of the
Court :
The first question arising upon this record is, does section
one, of the act in force July 1, 1872, commonly known as the
" Mayors' bill," include within its purview commissioners
of the board of police of the city of Chicago? That section
is as follows :
"In all cities of this State, all city officers, (whose election
by the qualified voters thereof is not provided for by law,)
and also all members of boards organized under the charter (or
amendments thereto) of any such city, except those appointed
by the Governor of the State, shall be appointed by the mayor
of the city, by and with the consent of the legislative author-
ity thereof, a majority of all the members elect concurring,
by yeas and nays, to be entered upon its journal. Any such
city officer, or member of any such board, may be removed
by the mayor of any such city, whenever, in his opinion, the
interests of the city may require such removal. But he shall
report, in writing, his reasons for such removal to the said
legislative authority at its next regular meeting. In case of
a removal from, or a vacancy in, any such office or board, a
successor may be appointed by the mayor, with the like con-
sent of the legislative authority of any such city."
It is contended that commissioners of the board of police
are not members of a board organized under the charter of
the city of Chicago, or any amendment thereto. The first
1873.] The People ex reh v. Weight. 391
Opinion of the Court.
board of this description was organized under an act in force
February 21, 1861. Public Laws of 1861, p. 151.
Although that act does not, in terms, profess to be an
amendment of the charter of the city of Chicago, it is mani-
fest that such was its necessary effect. It is entitled, "An
act to establish a board of police in and for the city of Chi-
cago, and to prescribe their powers and duties." It requires
the organization of an executive department of the municipal
government of the city, to be known as the "board of police
of the city of Chicago," and to this board it transfers the
control and management of the entire police of the city, and
also of all public police property. Certain powers theretofore
exercised by the mayor and common council are, thereafter,
to be exercised by the board of police. Salaries are to be
paid the officers of the department out of the city treasury;
taxes are to be levied and collected from the taxable prop-
erty in the city to raise the necessary funds to defray the
expenses of the department, and to be paid into the city
treasury ; and all prior laws in conflict with any of the pro-
visions of the act are expressly repealed.
From the time it became a law, this act was, therefore, the
source of certain municipal powers, exercised by those whose
functions in the city government related to the protection of
the lives, property and liberty of the citizens. It became
fundamental — a part of the organic law of the municipality ;
in other words, an amendment of its charter; and the mere
fact that the act in its title does not profess to amend the
city charter, is unimportant. It professes to, and does, enact
that which makes new organic law for the city government,
and this is sufficient. People v '. Mahoney , 13 Mich. 481;
People v. Briggs, 50 N. Y. 553. The circumstance that the
police are authorized, in emergencies, to discharge duties
beyond the city limits, neither changes the character of the
act, nor in any degree impairs its force as a part of the
fundamental law of the city. The paramount and controlling
object in its enactment was, the welfare of the city, and all else
392 The People ex rel. v. Wright. [Sept. T.
Opinion of the Court.
is but incidental or subsidiary to this. Whether, in certain
instances, the members of the police force exercise the powers
and functions of constables in other parts of Cook county, or
not, the board of police is still the "board of police in and
for the city of Chicago." The first section of the tenth chap-
ter of "An act to reduce the charter of the city of Chicago,
and the several acts amendatory thereof, into one act, and to
revise the same," in force February 13, 18G3, (Private Laws
of 1863, p. 109.) declares that there shall be established an
executive department of the municipal government of the
city of Chicago, to be known as the " board of police." This
is professedly a part of the city charter, and if there could
be any doubt whether the board of police, organized under
the act of 1861, was "organized under the charter of the
city, or any amendment thereto," it would seem to be impos-
sible to question that a board organized under this section,
was so organized.
An act, in force February 16, 1865, is entitled "An act to
amend an act entitled 'An act to reduce the charter of the
city of Chicago, and the several acts amendatory thereof,
into one act, and to revise the same/ approved February 13,
1863."
By the 11th section of this act, (Private Laws of 1865, vol.
1, p. 286,) it is provided that "the commissioner of the board
of police of said city, now having the longest term to serve,
shall continue in office until the next general election for
county officers in the year one thousand eight hundred and
sixty-seven, and until his successor shall be elected and qual-
ified ; the other two commissioners of the board of police of
said city, shall continue in office until the day for the general
election for county officers in the year one thousand eight
hundred and sixty-five, and until their successors shall be
elected and qualified."
By the 12th section it is enacted that "at the general
election in the year one thousand eight hundred and sixty-
five, for county officers, there shall be elected, by the qualified
1873.] The People ex rel. v. Wright. 393
Opinion of the Court.
voters of Cook county, two commissioners of the board of
police, as successors to those whose terms of office will then
expire by the provisions of the foregoing section, and the
commissioner so elected from the north division of said city
shall continue in office for six years, and the commissioner
so elected from the south division of said city shall continue
in office for four years, and until their successors shall be
elected and qualified ; and at the general election for county
officers in the year one thousand eight hundred and sixty-
seven, and biennially thereafter, there shall be elected, by
the qualified voters of said county, one commissioner of said
board of police, as successor to the commissioner whose term
of office will then expire by the provisions of this act, who
shall hold his office for the term of six years, * *."
It is provided by the 13th section that " said commissioners
shall receive an annual salary of twelve hundred dollars each,
and the president of the board shall receive an additional
sum of three hundred dollars per annum."
By the 14th section, "the salaries shall be paid out of the
city treasury monthly."
The 18th section requires that each of the commissioners
shall, on or before the first Monday of May, (then next,) give
bonds to the city in the sum of $25,000, conditioned for the
faithful performance of their duties under the provisions of
the act.'
Section 21 declares that all firearms and military equip-
ments belonging to the city shall be in the custody and
under the control of the board of police.
Section 23 requires the board of police to assume and
exercise the entire control of the fire department of the
city, and gives it full power and authority over its organiza-
tion and government, as also the custody and control of the
engine houses, engines, hose carts, trucks, ladders, horses,
telegraph lines, and all other public property and equipment
belonging to the fire department.
394 The People ex rel.'v. Wright. [Sept. T.
Opinion of the Court.
It would, in our opinion, in view of the various enact-
ments referred to, be absurd to hold that the " board of
police " is not what the law declares it to be — "the executive
department of the municipal government of the city of
Chicago," nor can we hesitate to say that it was organized
under amendments to the charter of the city.
The board is the creature of legislation, and it was in the
legislative discretion to provide how the commissioners should
be selected or appointed, and to change the mode from time
to time, as the welfare of the city seemed to demand, as it
was, also, to abridge or enlarge the scope of the duties imposed
on them. Ordinarily, it is true, the right of electing persons
to positions of public trust, is confided only to those who
are interested directly in the particular trust; still, in the
absence of constitutional regulation, it is not indispensable
that this shall be done ; and, in practice, the theory is departed
from whenever the right of election by ballot is denied, and
the place is filled by appointment. So, as is argued by the
relator, the rule ordinarily is, that when the right is once
given to elect to a particular office, it is not subsequently
withheld, and the office filled by appointment. Yet this is
but a practice, which may be departed from, the constitution
being silent on the subject, Avhenever the legislature shall
see fit so to do. A notable departure from the principle
exists in the present constitution with regard to justices of
the peace in the city of Chicago. By the adoption of that
instrument, the right of filling this office — important as it is
in the administration of justice — which, from the organiza-
tion of the State, had been, and which still is, in all other
parts of the State, filled by election by popular ballot, was
taken from the electors of the city, and the power of appoint-
ment was conferred upon the Governor.
It is but reasonable to suppose that the same motives which
controlled the constitutional convention in that instance,
operated upon the legislature in first making the office of
commissioner of the " board of police within and for the
1873.] The People ex rel. v. Wright. 395
Opinion of the Court.
city/7 elective by the popular ballot of the entire county of
Cook, and subsequently conferring the power of appointment
and removal to the office upon the mayor of the city. Be
this, however, as it may, it is sufficient for the present pur-
pose, that the legislature is not compelled to continue any
particular mode of selecting or appointing such commission-
ers, any more than it is compelled to adhere to the first legis-
lation had defining their powTers and prescribing their duties.
It is not claimed, nor can it be, that the relator has a vested
right in the office, which can not be impaired by legislation.
The People ex rel. etc. v. The Auditor, 1 Scam. 537 ; The People
v. Haskell, 5 Cal. 357 ; City Council etc. v. Sweeney, 44 Ga.
463; Davis v. The State, 7 Md. 157.
But, conceding that the " board of police" is a city board,
it is argued, the commissioner holds a city office, the election
to which by the people is provided for by law, and he can
not, therefore, be removed, under the language of the 1st
section of the " Mayors' bill."
As we understand the various provisions of the acts of
1863 and 1865, before referred to, the individual commissioner
of the board of police, as such, possesses no official authority,
and has no official duties. The word "commissioner" merely
serves to describe a member of a board which possesses offi-
cial power, and exercises official duties. He can only act in
the name of and by means of the concurrence of the board
of which he is a member. In the former of the acts referred
to, in section 1, chapter 2, in declaring what officers the cor-
poration shall have, a "board of police" is mentioned; but,
so far as we have observed, it is nowhere said that a commis-
sioner or member of a board of police shall, as such merely,
be a city officer. We think it plain, that, when the legisla-
ture used the language in the 1st section of the Mayors' bill,
"all city officers," * * "and also all members of boards,"
they did not mean that members of boards were city officers.
It is very clear, that it was intended one rule should apply to
city officers, and another to members of boards. In the
396 The People ex rel. v. Wright. [Sept. T.
Opinion of the Court.
former case, the exception is in favor of those whose election
by the qualified voters of the city is provided for by law, and
in the latter case, it is in favor of those who are appointed by
the Governor of the State.
Our conclusion is, that the present case is within the fair
construction of the language of the first section of the May-
ors' bill, and it only remains to notice the objections urged
against the constitutionality of that act.
It is claimed that it conflicts with section 13, article 4, of
the constitution, for two reasons: 1st, because it embraces
more than one subject; and, 2d, because the law amended is
not inserted at length in the act.
With regard to the first objection, it is sufficient to say, the
entire act relates to a single general subject, which is suffi-
ciently expressed in the title — namely, the duties of mayors
in cities — and there is nothing incongruous in the different
provisions. This has always been held to be a sufficient com-
pliance with this clause of the constitution. Prescott v. Chi-
cago, 60 111. 122; Neifing v. Pontiac, etc., 56 id. 174; Matter
of Petition of Ferdinand Mayer, 50 N. Y. 507 ; L C. R. Co. v.
Potts, 7 Ird. 681 ; State v. Miller, 45 Mo. 498.
The language of the constitution, on which the second ob-
jection is based, is : "No law shall be revived or amended by
reference to its title only, but the law revived or the section
amended shall be inserted at length in the new act.'7
No particular section of any act purports to be amended
by this act. All that can be said of it, in this respect, is,
that, by implication, it amends the municipal charters of
cities. It can not be held that this clause of the constitution
embraces every enactment which, in any degree, however
remotely it may be, affects the prior law on a given subject,
for, to so hold, would be to bring about an evil far greater
than the one sought to be obviated by this clause. Our views
on this question are fully and well expressed by the Supreme
Court of Michigan, in People v. Mahoney, 13 Mich. 484.
The court there said: "If, whenever a new statute is passed,
1873.] The People ex rel v. Wright. 397
Opinion of the Court.
it is necessary that all prior statutes modified by it, by impli-
cation, should be re-enacted and published at length as modi-
fied, then a large portion of the whole code of laws of the
State would require to be re-published at every session, and
parts of it several times over, until, from mere immensity of
material, it would be impossible to tell what the law was.
If, because an act establishing a police government modifies
the powers and duties of sheriffs, constables, water and sewer
commissioners, marshals, mayors and justices, and imposes
new duties upon the executive and the citizen, it has thereby
become necessary to re-enact and re-publish the various laws
relating to them as modified, we shall find, before the act is
completed, that it not only embraces a larger portion of the
laws of the State, but also that it has become obnoxious to
the other provisions referred to, because embracing a large
number of objects, but not one of which can be covered by
its title.
" This constitutional provision must receive a reasonable
construction, with a view to give it effect. The mischief
designed to be remedied was, the enactment of amendatory
statutes in terms so blind that legislators themselves were
sometimes deceived in regard to their effect, and the public,
from the difficulty in making the necessary examination and
comparison, failed to become apprised of the changes made
in the laws. An amendatory act, which purported only to
insert certain words, or to substitute one phrase for another,
in an act or section, which was only referred to, but not re-
published, was well calculated to mislead the careless as to its
effect, and was, perhaps, sometimes drawn in that form for
that express purpose. Endless confusion was thus introduced
into the law, and the constitution wisely prohibited such
legislation. But an act, complete in itself, is not within the
mischief designed to be remedied by this provision, and can
not be held to be prohibited by it without violating its plain
intent."
398 The People ex rel. v. Wright. [Sept. T.
Opinion of the Court.
See, also, Ex parte Pollard, 40 Alabama, 77, 100; Spencer
v. State, 5 Ind. 41 ; Branham v. Lange, 16 Ind. 497.
It is also objected, that the act conflicts with section 22,
article 4, of the constitution, which prohibits the legislature
from passing local or special laws.
The act is neither local nor special. It applies, in general
terms, to all the cities in the State. Whether there may be
many or few to whom its provisions will be of any practical
force, is not the question. As was observed in McAunich v.
The M. and M. R. R. Co. 20 la. 338 : "These laws are gen-
eral and uniform, not because they operate upon every per-
son in the State, for they do not, but because every per-
son who is brought within the relations and circumstances
provided for, is affected by the laws. They are general and
uniform in their operation upon all persons in the like situa-
tion, and the fact of their being general and uniform, is not
affected by the number of those within the scope of their
operation." See, also, Wellcer v. Potter, 18 Ohio, 8o.
The fact that the act is limited as to the time of its dura-
tion, does not make it a local or special act, agreeably to
any definition of such acts with which we are familiar. "Pri-
vate or special statutes," says Sedgwick, in his work on
Statutory and Constitutional Law, 30, "relate to certain indi-
viduals, or particular classes of men." In Smith on Consti-
tutional Construction, it is said : "The general description
of public acts is, that they relate to or concern the interests
of the public at large, or relate to a general genus in relation
to things, and private acts relate to private individuals, or an
individual only, or which concern a particular species of such
general genus or thing," p. 913, sec. 795; and again, "It has
been said, that the distinction between public and private
statutes is this: a general or public act is a universal rule
that regards the whole community, but special or private acts
are rather exceptions, than rules, being those which operate
upon private persons and private concerns. It is not neces-
sary, however, in order to constitute a statute a public act,
1873.] LeMoyne et al. v. Quimby et ah 399
Syllabus.
that it should be equally applicable to all parts of the State.
It is sufficient, if it extends to all persons doing or omitting
to do an act within the territorial limits described in the
statute." p. 917, sec. 802. And to the same effect is Dwarris
on Statutes. See Potter's Dwarris, 52, et seq.
Potter, in giving his division of statutes, divides them
thus: "public and private; declaratory and remedial; per-
ceptive, prohibitive, permissive and penal; temporary and
perpetual."
Bouvier, in his Law Dictionary, Vol. 2, p. 573, defines
"temporary" thus: "that which is to last for a limited time,
as, a temporary statute, or one which is limited in its opera-
tion for a particular period of time after its enactment; the
opposite of perpetual."
The distinction, then, seems plain — a local or special statute
is limited in the objects to which it applies; a temporary
statute is limited merely in its duration, and, necessarily, a
local or special law may be perpetual, or a general law may
be temporary. This, therefore, is a temporary general law,
and not within the prohibition of the section referred to.
Entertaining these views, it follows the judgment below
must be affirmed.
Judgment affirmed.
John V. Le Moyne et al.
v.
Benjamin F. Quimby et al.
1. Administrator— power of as to real estate. An administrator has
no power over the real estate of decedent, except to obtain a decree of
court and sell the same thereunder to pay debts, when the personal estate
is insufficient.
2. Same— can not file a bill in equity to perfect title. When it becomes
necessary for an administrator to sell real estate to pay debts, he can not
400 LeMoyne et al. v. Quimby et al. [Sept. T.
Statement of the case.
file a bill in equity to perfect the title or relieve it of any burden, but
he must sell it as he finds it.
3. Creditors of estates — interest of, in real estate of decedent. A
creditor, whose claim has been duly allowed by the county court against
an estate, has no such interest in the real estate of the deceased as will
authorize him to file a bill in equity to perfect the title or remove incum-
brances.
4. Partition — when sale may he ordered. A sale of the real estate of
tenants in common can not be decreed by the court, for the purpose of
distribution, until commissioners appointed by the court have reported,
upon their oaths, that the land can not be partitioned without prejudice
to the interests of the owners.
5. Contract — effect of, for net profits on sale of land. A contract that,
if land is sold at a specified price, the owner will allow to his agent, in
the purchase and sale of the lands, a certain portion of the net profits, is
only a personal contract, and gives the agent no interest in the land.
Appeal from the Circuit Court of Cook county.
This was a bill in chancery, by Benjamin F. Quimby,
against Henry M. Shepard, administrator of Charles W.
Ricketson, and other parties, for the purpose of perfecting
the title and ascertaining the interest of the estate of Ricket-
son in the lands described in the bill, and to enjoin the
administrator from selling the same to pay debts, until such
title and interest was settled and ascertained. John B. Lyon,
one of the defendants, filed a cross-bill, setting up a claim to
an interest in the land, and asking for the appointment of a
receiver, that an account be stated, and that all the claim-
ants of the land be required to convey to such receiver, and
that thereupon the receiver sell the land at auction, and that
the proceeds be divided according to the equities of the sev-
eral parties.
Charles W. Ricketson, on the 5th of August, 1864, pur-
chased the lands described in the bill, from parties who
claimed by purchase from the canal trustees, subject to two
or more deferred payments, which Ricketson assumed. The
canal trustees had not conveyed the land, because the pur-
chase money had not all been paid. This purchase, though
1873.] LeMoyne et at. v. Quimby et at 401
Statement of the case.
made by Ricketson in his own name, was in fact made for
himself and others, and, at the time of making it, he executed
a declaration of trust to H. Brady Wilkins, showing that he
was entitled to one-third interest therein, and Avas to pay
one-third of the deferred payments, which declaration of
trust was recorded April 26, 1867. A similar declaration of
trust was executed by Ricketson, dated August 5, 1864, show-
ing that Silas Merrick was entitled to one-sixth interest in
such purchase, and was to pay one-sixth of the deferred pay-
ments. This declaration was recorded September 11, 1867.
At the time of the purchase by Ricketson, there was a ver-
bal arrangement between him and Michael Tiernan, by which
Tiernan was to hunt up and buy land for said Ricketson, and
this land was bought under that arrangement. On the 22d
of June, 1865, the agreement between Ricketson and Tiernan
was reduced to writing, and on the 8th of October, 1866, it
was recorded. By this written agreement, Ricketson agreed,
in consideration of Tiernan's services in securing the land,
that, if it should be sold for a specified price, Tiernan should
have one-half of the net profits, after deducting purchase
money, taxes, costs and expenses, and ten per cent interest;
but if sold for less than the specified price, then he was to
have only one-fourth of such net profits; but no sale was to
be made without Ricketson's consent, and he reserved the
right to sell at any time, and for any price he might see fit.
The agreement further showed that Ricketson's purchase was
for himself, and in behalf of others.
On the 20th of May, 1870, Wilkins conveyed his interest
in the land to John V. LeMoyne, and on the 7th of August,
1871, Merrick conveyed to LeMoyne his interest in the land.
The first of said two last named conveyances was recorded
July 18, 1870, and the other September 16, 1871.
Tiernan assigned one-half interest in his contract to John
B. Lyon, and the other half to Hugh Maher, and, by subse-
quent assignments, Maher's interest became vested in Le-
Moyne.
26— 70th III.
402 LeMoyne et al. v. Quimby et al. [Sept. T.
Statement of the case.
Ricketson died about October 4, 1871, having devised all
his property, real, personal and mixed, to Polly Ricketson,
his wife, and Lizzie W. Ricketson, his daughter and only
child. Letters of administration were duly issued in Penn-
sylvania, where Ricketson resided and where he died, to
William Phillips, and the certificates of the canal trustees
of the purchase of the lands went into his hands, and he
paid whatever remained due on the deferred payments, but
did not obtain a deed.
In May, 1868, letters of administration were issued by the
county court of Cook county, upon the estate of Ricketson,
to Henry M. Shepard, and subsequently Quimby filed a claim
against the estate, which was, on the 29th of November,
1869, allowed by the county court of Cook county. No per-
sonal property of the estate ever came into the hands of
Shepard, and he filed a petition, and got an order to sell the
interest of Ricketson in the land, for the purpose of paying
debts of the estate, including the claim of Quimby.
Polly H. Ricketson and Lizzie W. Ricketson, on the 22d
of January, 1870, conveyed all their interest in the land to
Le Moyne.
The court below enjoined Shepard from selling under the
order obtained by him as administrator, appointed a receiver,
ordered LeMoyne, the canal trustees and Lyon, to convey to
such receiver, and that, upon such conveyances being made,
the receiver sell the land at public auction, and convey the
same to the purchaser at such sale, and that he make a dis-
tribution of the proceeds of the sale amongst the various
parties, according to their several interests as found by the
decree, and that he report the sale to the court.
Messrs. Trumbull, Anthony, Church & Trumbull, and
Mr. J. V. LeMoyne, for the appellants.
Mr. Melville W. Fuller, for appellee Quimby.
Messrs. Harding, McCoy & Pratt, for appellee Lyon.
1873.] LeMoyne et ah v. Quimby et al. 403
Opiuion of the Court.
Mr. Justice Craig delivered the opinion of the Court :
Upon the trial of this cause, the circuit court found that
Ricketson, at the time of his death, owned one-half of the
land, and Merrick and Wilkins were the owners of the other
half, and that, since that time, Merrick and Wilkins conveyed
to John V. LeMoyne. The court then decreed that Grant
Goodrich be appointed receiver, and that John V. LeMoyne,
the trustees of Illinois and Michigan canal and John B. Lyon,
convey the land to the receiver, and that the receiver sell the
land at public auction, for cash.
The first question that arises is, what right or authority
Quimby, the complainant, had to file a bill to remove a cloud
from the title to the land, or to settle conflicting interests of
the several owners or claimants of the premises. He had no
title to the land; he had no lien upon it; he was barely a
creditor of Ricketson, and his claim had been probated in
the county court of Cook county. In case it became neces-
sary for the administrator to sell the land to pay the debts of
the deceased, and a sale should be made, he, in common with
other creditors, would share in the proceeds of the sale. Thus
far complainant was interested in the premises, but no fur-
ther.
The administrator of Ricketson had no interest in the land
of deceased. He had no right to the possession of it, or the
rents to be derived therefrom. In one contingency the admin-
istrator has a bare naked power over the land of his decedent,
and nothing more. That arises where the personal estate is
insufficient to pay the debts; then he may obtain a decree of
court to sell land to pay debts. If the land is incumbered,
or there is a cloud upon the title, he can not apply to a court
of equity to relieve it of any burden. He must sell it as he
finds it, or not at all. Smith v. McConnell, 17 111. 141 ; Cutter v.
Thompson, 51 ib. 391 ; Phelps v. Funkhouser, 39 ib. 401 ; Wal~
bridge v. Day, 31 ib. 379.
The administrator has no right to interfere with the land
404 LeMoyne et al. v. Quimby et al. [Sept. T.
Opinion of the Court.
of the deceased, in any respect or for any purpose, only to
sell it to pay debts. He might be regarded as the trustee of
the creditors. In converting real estate into money, he acts
for the benefit solely of the creditors.
If, then, the administrator has no power to file a bill to
remove incumbrances, we are unable to see upon what prin-
ciple one of the creditors, who has no right, title or interest
in the land, can do the very thing the administrator, whom
the law appoints to dispose of the property of the deceased,
for the creditors, can not do.
It would certainly be unwise to permit a creditor, who has
no interest but his own to protect, to go into a court of chan-
cery and stop the administrator from the discharge of his
duties, and delay the settlement of the estate until the cred-
itor might litigate some real or imaginary incumbrance upon
the title to the real estate of the deceased. In portions of
this State titles to real estate are conflicting, and were it
established that any creditor of a deceased person might, at
pleasure, go into a court of chancery and settle the title of
the deceased by litigation, before it could be sold to pay the
debts of the deceased, such a rule would inaugurate an end-
less source of litigation in the settlement of estates, and
would be of no practical benefit to any person.
We have been referred by appellees to the case of ' Fr eel 'and
v. Bazey, 25 111. 296, as authority that a court of chancery, in
the exercise of its general jurisdiction, may, in certain cases,
take upon itself the administration of estates. While this
jurisdiction is sometimes exercised, it will only be assumed
in extraordinary cases, and where special reasons are shown
to exist why the administration of the estate should be taken
from the probate court. No reasons are shown to exist, in
this case, that the estate can not be properly administered in
the county court. It is not pretended that Ricketson covered
up or in any manner concealed his title to the property ;
neither is it claimed that the administrator has in any way
mismanaged the estate or disregarded his duty in any respect.
1873.] LeMoyne et ah v. Quimby et ah 405
Opinion of the Court.
On the contrary, it is shown, by the bill, that he has filed his
petition to sell the land, and was proceeding with all reason-
able dispatch to sell when he was enjoined by the bill in this
case.
It is insisted by appellees, that if the heir can enjoin the
administrator from selling until he can put the estate in con-
dition to sell to prevent sacrifice, it follows that a creditor
may do the same thing. There is no analogy between the
supposed cases.
Upon the death of the owner of real estate, it descends
directly to the heir. The heir becomes the absolute owner,
subject only to the right of the administrator to sell to pay
the debts of the deceased. If the personal estate is insuffi-
cient for that purpose, the administrator has the right to sell
only so much of the land as will discharge the debts. Should
there be a fictitious incumbrance on the land, that would
deter purchasers from only paying half the value, the removal
of which would cause the land to sell for its full value, it is
eminently proper for the heir, in order to protect his estate, to
institute proceedings to remove the incumbrance. The case,
however, of a creditor against the estate of a deceased person is
entirely different. He does not own or control the land; he has
no interest in it; he acquires no specific lien on the land by
the allowance of his claim against the estate; he only shares
in the proceeds after a sale. Stillman v. Young, 16 111. 325.
The allowance of a claim of a creditor against an estate of
a deceased person only establishes the debt of the creditor.
It differs materially from a judgment: no execution can issue
upon it. Welch v. Wallace, 3 Gilman, 495. What is here
said, however, has no application to a case where a person
fraudulently conveys lands, and, after death, a creditor's bill
is filed by a creditor to subject the lands to the payment of
debts. As was held in McDowell v. Cochran, 11 111. 31, and
Chateau v. Jones, ib. 318, in such a case the decedent does
not die seized of the lands, although the conveyance was
406 LeMoyne et al. v. Quimby et al. [Sept. T.
Opinion of the Court.
fraudulent; but in this case no fraudulent conveyance had
been made, but Ricketson died seized of the lands.
From these views, it follows that the demurrer interposed
to the bill should have been sustained, and the bill dis-
missed.
There is, however, another objection to the decree, far more
serious than the one just considered. The court find by
the decree that John B. Lyon was entitled to the relief asked
in his cross-bill, and, under the Tiernan contract, was entitled
to a sale of the property, and a share of the profits according
to the terms of the contract. This was a contract made
between Ricketson and Tiernan, by which it was agreed that
if Ricketson sold the lands for $150 per acre or more, then
Tiernan was to receive one-half of the net profits arising
from the sale, after deducting the purchase money and all
amounts advanced for taxes and other expenses connected
with the land, with ten per cent interest per annum. If the
lands were sold for less than $150 per acre, then Tiernan was
to receive one-fourth of the net profits, after the deductions
aforesaid. The contract provided that no sale should be
made without Ricketson's consent, and he reserved the right
to sell at any time, and at any price he saw proper.
We can only regard this as a personal contract. It gave
Tiernan no title to or interest in the land. It was an agree-
ment to pay Tiernan, for his services in procuring the land for
Ricketson, a certain part of the profits upon a sale, in lieu
of a definite and fixed sum of money. By this contract,
Tiernan had no control of the land or authority to sell. At
such time as Ricketson saw proper to sell and dispose of the
land, in the event there should be any profits, then Tiernan
could share in them.
The cross-bill and decree proceed upon the ground that
Tiernan, by the agreement, acquired an interest in the land,
and not in the proceeds to be realized upon a sale. This is
erroneous. Stow v. Robinson, 24 111. 534; Porter v. Ewing,
ib. 618. These authorities settle this question beyond any
1873.] LeMoyne et ah v. Quimby et al. 407
Opinion of the Court.
dispute, and, although other courts may have held otherwise,
the decisions cited supra are based upon principles so well
settled that they can not be shaken.
Should the land be sold for such a price that Lyon, as
assignee of Tiernan, would be entitled to profits under the
Tiernan contract, then he will become one of the creditors
of the estate of Ricketson, and his only remedy is, to present
his claim for adjudication and allowance, in the county court.
This is the tribunal that the law has invested with full power
to pass upon his claim, and, under the facts in this case, he
has no right to invoke the aid of any other tribunal.
Another strange feature of this decree is, it not only author-
izes the receiver appointed by the decree to sell the interest
Kicketson had in the land at the time of his death, but it
requires LeMoyne, who owns an undivided one-half of the
tract of land, to convey to the receiver, and then empowers
the receiver to sell the whole of the land.
Ricketson, at the time of his death, owned one-half of this
tract of land, which contained near a section • Merrick owned
one-third and Wilkins owned one-sixth. Since the bill was
filed in this cause, Merrick and Wilkins have conveyed their
interests to LeMoyne. Upon what principle the court could
require LeMoyne to sell his half interest in this tract of land,
without his consent, we are at a loss to conjecture.
We have a statute which provides that, where two or more
persons own land undivided, one of the owners may file a peti-
tion for partition ; and if commissioners, who are appointed
by the court, report, under the sanctity of an oath, that the
land is so situated that it can not be divided without manifest
prejudice to the rights and interests of the owners thereof,
then the court may decree a sale, and a division of the pro-
ceeds between the owners thereof.
But this proceeding is not based upon the statute. With-
out form or ceremony, the decree takes from LeMoyne his
one-half interest in a large and valuable tract of land, and,
against his protest, puts it in the hands of a receiver, and
408 Barrett et al. v. Spaids. [Sept. T.
Syllabus.
empowers him to sell it at public auction, for cash. This is
done on the application of Quimby, a creditor of Ricketson's
estate, and Lyon, who may or may not be a creditor of Rick-
etson's estate.
To sanction this decree, would establish a precedent of the
most dangerous character. The .right to acquire and hold
property can not be frittered away by such trivial pretexts as
are set up in the cross-bill in this case. It rests upon a more
solid foundation.
Ricketson had one-half interest in this tract of land. The
administrator of his estate had obtained a decree to sell it.
We are not able to see any reason why he should be enjoined
or interfered with in the sale of the land under the decree
he had obtained for that purpose.
If it be true, as is claimed, that Ricketson's interest in the
land will not sell for as large a sum as it otherwise would had
the courts passed upon the title, this is a misfortune of the
case, which the legislative department of the government is
competent to remedy, but the courts have no power to inter-
fere.
The decree of the circuit co.urt will be reversed and the
bill and cross-bill dismissed.
Decree reversed.
Oliver W. Barrett et al.
v.
Talmadge E. Spaids.
1. Malicious prosecution — of the necessary elements. The one most
important element is, want of probable cause. Malice is unimportant,
if there be probable cause. Malice and want of probable cause must both
be present. The gist of the action is, that the prosecutor, or party suing
out the writ, acted maliciously, and without probable cause. If there is
no malice, or if there be, and there was probable cause, the action will
not lie.
1873.] Barrett et al. v. Spaids. 409
Opinion of the Court.
2. Probable cause — what constitutes. A reasonable ground of suspi-
cion, supported by circumstances sufficiently strong in themselves to war-
rant a cautious man in the belief that the person accused is guilty of the
offense charged, constitutes probable cause.
3. Where the plaintiff had been, for several years prior to January,
1869, engaged in an extensive mercantile business, and had received large
shipments of goods during the latter part of December, 1868, and up to
January 2d, 1869, through the defendants, as common carriers, on which
he failed to pay the freight, and had received, through the hands of the
defendants, as common carriers, packages containing very considerable
sums of money, being the returns from goods shipped by him to his cus-
tomers, and had given checks to defendants for freight at several different
times, all of which were dishonored at the bank on which they were
drawn, for the reason that he had no funds there to pay them ; and, on the
second or third day of January, when the defendants demanded payment
of their bills for freight, told them he had no money, and that since the
first day of January he had been doing business as agent : Held, that these
facts constitute probable cause for swearing that the plaintiff had, within
two years, fraudulently conveyed or assigned his property and effects, so
as to hinder and delay his creditors, and to cause an attachment on that
ground to be issued against his property.
4. Same — acting upon advice of counsel. In an action for malicious
prosecution in respect to the suing out of an attachment against the plain-
tiff's property, it seems, if the defendant acted upon the advice of com-
petent counsel, and in good faith, in suing out the writ, he will be relieved
from liability to respond in damages, for want of probable cause, for his
action in the premises, the same as in a case where the prosecution was
on a criminal charge.
Appeal from the Superior Court of Cook county ; the Hon.
Joseph E. Gary, Judge, presiding.
Messrs. Monroe, Bisbee & Gibbs, for the appellants.
Messrs. Sleeper & Whiton, for the appellee.
Mr. Chief Justice Breese delivered the opinion of the
Court :
This was an action on the case, in the Superior Court of
Cook county, brought by Talmadge E. Spaids against Oliver
W. Barrett, Charles Fargo and the American Merchants'
Union Express Company, the first named being the general
410 Barrett et al. v. Spaids. [Sept. T.
Opinion of the Court.
agent, and the last named, general superintendent, of that
company, in the North-west, to recover damages for mali-
ciously suing out a writ of attachment against the plaintiff.
The cause was tried on the general issue, and special pleas
setting up a release, etc., and a verdict found for the plaintiff,
assessing his damages at four thousand one hundred and six
dollars and thirty-four cents, on which the court rendered
judgment, having overruled a motion for a new trial.
To reverse this judgment, the defendants appeal, assigning,
among other errors, the refusal to grant a new trial.
This cause was before this court at the September term,
1870, Spaids v. Barrett et al. 57 111. 289, in which the plead-
ings, only, were settled.
In determining upon the propriety of refusing a new trial,
we are compelled to examine the testimony, to ascertain if
the elements requisite to maintain the action are there found.
The one most important element is, want of probable cause
for suing out the writ. Malice is unimportant, if there be
probable cause. It is a rule of law, that malice and want of
probable cause must both be present. The gist of the action
is, that the prosecutor, or party suing out the writ, acted ma-
liciously, and without probable cause. If there is no malice,
or if there be, and there was probable cause, the action will
not lie. Leidig v. Rawson, 1 Scam. 272; Jacks v. Stimpson, 13
111. 702; McBean v. Ritchie, 18 ib. 114. Later cases are to
the same effect. Hurd v. Shaw, 20 ib. 354 ; Wade v. Walden,
23 ib. 425, where it was said, the existence of malice was not
sufficient to raise a presumption of want of probable cause.
And, in Israel v. Brooks, ib. 575, it was said, if there be prob-
able cause, the malice of the prosecutor weighs nothing.
JRoss v. Innis, 35 ib. 487; Mitchinson v. Cross, 58 ib. 366.
What is probable cause, is defined in most of the above
cases. In Ross v. Innis, supra, it was held to be, a reasonable
ground of suspicion, supported by circumstances sufficiently
strong in themselves to warrant a cautious man in the belief
that the person accused is guilty of the offense charged.
1873.] Barrett et al. v. Spaids. 411
Opinion of the Court.
What, then, is the evidence to establish probable cause ?
That shows that plaintiff was engaged, and had been for
many years, in the wholesale oyster trade, in Chicago, receiv-
ing his supplies by express from the house of Faran & Co.,
Baltimore. According to plaintiff's testimony, it had proved
a losing business. In the latter part of December, 1868, and
up to the 2d day of January, 1869, plaintiff had received
from Baltimore, through appellants' company, large quantities
of oysters, for which he had failed to pay the express charges.
On the last named day, appellant Barrett, the general agent
of the company, was informed by one of the clerks that
plaintiff's checks, to the amount of thirteen hundred and
eighty-six dollars, had been thrown out by the bank on which
they were drawn, plaintiff having no funds there to meet
them, and had not had for some time previous. Barrett then
directed the clerk to make out plaintiff's account, which was
done by the bookkeeper. This account showed that plaintiff
was indebted to the express company, for freight on oysters,
in the sum of two thousand nine hundred and ninety-six dol-
lars. Barrett proceeded to plaintiff's place of business, on
La Salle street, with the account, and demanded payment, and
plaintiff objected to paying, insisting the amount was too
large, that there was a mistake in it; that all he owed, and
so he testified on the trial, was one thousand or eleven hun-
dred dollars. He also said he had no money to pay it with,
and that, since the first day of January, he had been acting
as agent. This was on the second or third day of January,
1869. Barrett immediately communicated this to his supe-
rior, Mr. Fargo, the general superintendent, who thereupon
went, himself, to plaintiff, with the account, and with the same
result. The pretense was set up by plaintiff that the company
had promised him more favorable rates. The testimony of
plaintiff, himself, shows that he did not know what the rates
were to be.
We will now consider the plaintiff's position. Previous to
December 24, the plaintiff had given to the express company
412 Barrett et al. v. Spaids. [Sept. T.
Opinion of the Court.
several checks for freight charges, amounting in the aggre-
gate to six hundred and thirty dollars and seventy-five cents,
all of which had been refused by the bank on which they
were drawn, for want of funds to meet them. On that day,
these several checks were consolidated into one check for the
same amount, six hundred and thirty dollars and seventy-five
cents, which was also thrown out by the bank for the same
reason. There was, then, on that day, an indebtedness
acknowledged by plaintiff of that amount, for freight, then
due. The account presented to plaintiff, and not disputed by
him, shows that, subsequently, from that day to the 2d of
January, 1869, plaintiff received, through this express com-
pany, thirty-seven thousand three hundred and fifty pounds
of oysters in cases, the freight on which, at established rates,
amounted to thirteen hundred and seven dollars and twenty-
five cents. It is not claimed by plaintiff that he had paid
any of this freight. By his own admissions, there was due
the express company near two thousand dollars, yet plaintiff
swears he owed them not over eleven hundred dollars.
Taking, then, the testimony of Fargo, Barrett, and the
clerk of the company, together with that of the plaintiff, that
his checks, to the amount of thirteen hundred and sixty-eight
dollars, had been dishonored by the bank, the reasonable con-
clusion must be, that the account of appellants, as shown on
the trial, was correct. When plaintiff was requested, by Bar-
rett and Fargo, to pay the amount, he objects, on the ground
it is too large, and that there is a mistake in it; he is requested
to go with them to their office and have the mistake corrected.
He then says he has no money to pay it with, and that, since
the first of January, he has been acting as agent.
The express company knew that packages of money had
come to their office for the plaintiff, and which he had received,
the amount being very considerable, being the returns for
oysters he had distributed to his customers in the West, and,
when asked what he had done with all this money, he is con-
tent to reply that he hadn't it.
1873.] Bakrett et al. v. Spaids. 413
Opinion of the Court.
It seems to us, any cautious, prudent man of business,
under these circumstances, could not have failed to believe
that this man had already conveyed away, or was preparing
to convey his property, in fraud of his creditors. He, for ten
years the principal in an establishment doing a large amount
of business, and with a large stock on hand, suddenly, on the
call of an important creditor, sinks his position as owner and
principal, and turns up an agent. But few cautious or pru-
dent creditors would, under such circumstances, hesitate sua
sponte to sue out a writ of attachment at once. But appel-
lants, more prudent and cautious than the generality of busi-
ness men, did not act precipitately, but at once applied to a
distinguished attorney of this court, and laid the case before
him, putting him in full possession of all the facts as here briefly
detailed. The attorney applied to, is known as able, honest
and conscientious, and he not only advised them, but reminded
them, as officers of the corporation, having an important trust
committed to them, that it was their duty to sue out an attach-
ment, and prepared the affidavit found in the record.
Plaintiff had from the 2d day of January to the 6th, to
adjust this account, but refused to do it, under the shallow
and unsubstantiated pretense, that his rates, as a special favor,
were to be reduced, thereby lessening the demand very mate-
rially. The great preponderance of the evidence is against
any such pretension. Even the plaintiff, in his testimony,
can not swear what the rate was to be, whether two dollars
the 100 lbs., or two dollars on each case. It seems quite diffi-
cult, if not impossible, to see, under these facts, there was not
probable cause. We think probable cause is established, and
further, that these proceedings were commenced on the advice
of able counsel. This court has held, where the prosecution
was on a criminal charge, and the prosecutor is sued in an
action for damages, if he is able to show and does show that
he took competent legal advice, in good faith, to ascertain what
course to pursue, and such counsel, after proper deliberation
and examination into the facts, advised an arrest for a crimi-
414 Barrett et al. v. Spaids. [Sept. T.
Opinion of the Court.
rial offense, that the party causing the arrest should not be
required to respond in damages, for want of probable cause,
for his action in the premises. Ross v. Innis, 26 111. 259.
In Collins v. Hayte, 50 ib. 353, it was said, good faith on
the part of the prosecution is an important, if not a vital,
element of inquiry, and is always a sufficient justification,
except where an unreasonable credulity is manifested, in-
ducing the prosecutor to draw conclusions of guilt, when it
would have been wanting in the perception of a person of
ordinary prudence and judgment, and the same rules apply
to both civil and criminal prosecutions.
But a point is made on the fact that the affidavit on suing
out the writ of attachment was for a sum too large. It is
claimed there was a mistake, against the debtor party, of
three hundred and twenty-one dollars, for which a check had
been given.
But, if this be so, does it tend to show an absence of prob-
able cause? The bookkeeper was directed, by Barrett, to
make out the account from the books. Barrett did not act
in that capacity. He did not keep the books, but stood in
the same relation to the clerk, who did, as every other busi-
ness man stands to his clerk or bookkeeper. It is presumed
the bookkeeper keeps correct books, at least his employers
must act on that presumption, and they do so act until some-
thing occurs to overthrow the presumption. Barrett had a
right to believe the amount to be as stated by the bookkeeper,
and by him itemized, and, everything seeming fair, that it
was correct, and the sum total therein exhibited was the true
amount of plaintiff's indebtedness. What business man,
however prudent and cautious he may be, would hesitate to
take an account, regularly made out by his bookkeeper, as
the true account?
In a place like Chicago, or any other large city, some of
whose business men may not have a permanent interest in the
city, the utmost vigilance and energy is often necessary to be
exercised, to prevent frauds upon confiding creditors. This
1873.] Barrett et al v. Spaids. 415
ODinion of the Court.
plaintiff was doing a large business in Chicago during the
whole of 1868, and had, in the prosecution of his business,
incurred large liabilities to this express company, and had
trifled with them by giving his checks on a bank in which he
had no deposits to meet them. When payment is demanded,
in January following, he replies he can not pay; that, since
the first day of January, he has been doing business as agent.
What other conclusion could a creditor of his arrive at, than
this, and is it not a reasonable one, that he had secretly trans-
ferred his stock? If he was doing business as agent, then
the stock must have belonged to his principal, whoever he
might be, and it must have been secretly transferred. This
was enough to justify the proceeding by attachment, and so
eminent counsel advised. Would not, under the circum-
stances developed in this record, any reasonable man, without
professional advice, have resorted to this process, and been
justified in so doing? "We think so. That everything which
was done, was done in the utmost good faith, there can not be
a well-founded doubt. We have looked carefully through
the testimony, and are compelled to the conclusion, that the
jury did not comprehend the law governing the case, else
they could not have found this verdict.
Some attempt was made to show that a larger amount of
property was levied on, under the writ, than there was any
need for, and that proper care was not extended to it, it being
of a perishable nature. The preponderance of the testimony
is all the other way. Only one hundred and thirty cases were
levied on, and the only restriction imposed by the officer on
the appellee, was, that the property should not be removed.
The plaintiff could have iced them to his heart's content, had
he been so disposed. Neither in suing out the writ nor in
the proceedings under it, can we perceive the least indication
of a design or wish to harrass or oppress the plaintiff, and, in
the existence of probable cause, they were justified in all their
acts.
416 Klock et ah v. Walter. [Sept. T.
Syllabus.
But the plaintiff, himself, after the attachment proceedings
were stopped, acknowledged an indebtedness of more than
twenty-two hundred dollars, after a full and fair settlement,
in which appellants allowed the plaintiff all the credits he
claimed, and actually paid that amount in discharge of his
indebtedness, and executed a release and receipt in full.
It is now claimed this release or receipt was obtained by
duress of goods, and is therefore inoperative. A jury may so
believe, but, in doing so, they seem to sin against light and
knowledge. There was no duress, and plaintiff, under that
ridiculous pretext, should not be permitted to make a specu-
lation so large and so fruitful, as he seems disposed to do, by
taking advantage of the popular prejudice against corpora-
tions, and, through that, recover a verdict large enough to
pay them an honest debt, long due, and near one hundred per
cent more.
We see no merit in this claim of the plaintiff, and can not
but express our surprise the court before w7hich the cause was
tried suffered such a verdict to stand.
On a careful and thorough examination of the whole record,
we are satisfied the plaintiff ought not to recover, and that
appellants had good cause for proceeding by attachment
against his goods and chattels in the manner they did.
The judgment is reversed.
Judgment reversed.
Clarissa A. Klock et al.
V.
Ellen Walter.
1. Mortgage — what constitutes. Where a deed, though absolute in
form, is intended as a security for money, it will be treated as a mort-
gage, or where the money of one purchases land and it is conveyed to
another, a trust results in favor of the one whose money paid for the land.
1873.] Klock et at. v. Walter. 417
Opinion of the Court.
2. Where land was advertised for sale imder a senior mortgage,
and by an arrangement between the owner, the junior mortgagee and
a third party, the latter bid the land off for the amount of both mort-
gages, and paid the amount due on the first mortgage with money fur-
nished by the junior mortgagee, with the understanding that the owner
might have further time in which to sell the land and pay off the amount
due on both mortgages, with interest thereon : Held, that the transaction
amounted to a mortgage, and that upon payment of the amount due on
the two mortgages, with interest, the owner was entitled to a convej-ance.
Appeal from the Superior Court of Cook county ; the
Hon. Joseph E. Gary, Judge, presiding.
The facts in this case will be found in 55 111. 362, as they
were presented in a prior bill filed, which should be taken in
connection with those set up in the new bill, as stated in the
opinion.
Messrs. Miller & Frost, for the appellants.
Messrs. Goodrich & Smith, for the appellee.
Mr. Justice Walker delivered the opinion of the Court :
At the September term, 1870, this case was before this
Court, and is reported in 55 111. 362. The bill had been dis-
missed without prejudice, in the court below, and the decree
was affirmed. In that case it did not appear that appellee
in this case had paid any portion of the purchase money at
the master's sale, on the Sands mortgage, which had been
transferred to the city; at which sale McCollum purchased
and received a deed. In the bill, in this case, it is alleged
that, the title being doubtful and complainant was negotia-
ting to sell the property, it was agreed that the property should
be sold, and McCollum should advance the sum necessary to
pay off the city's mortgage, and that he would give appellee
time to sell the property and refund the money with inter-
est, and that Peacock held a junior mortgage, which, with
that held by the city, amounted to $6000, and that McCollum
should bid off the property at that price, and that Peacock
27— 70th III.
418 Klock et al. v. "Walter. [Sept. T.
Opinion of the Court.
would give complainant further time on his mortgage, she
paving interest on his debt until she could sell the property
and pay him principal and interest. But before the sale
McCollum found he was unable to advance the money to pay
for the land under the sale by the master, when it was agreed
that Peacock and McCollum should make a note and dis-
count it at bank, which it was agreed Peacock should pay at
maturity, and McCollum should still purchase and hold the
land until complainant should be able to sell the property
and pay both sums to Peacock, with interest. The money
was thus obtained, the purchase made, and the entire sum,
both of the loan and Peacock's mortgage, has been paid by
appellee to him, with interest. These allegations are fully
proved.
In these particulars the latter bill is essentially different
from the former. This bill also alleges, and the proof estab-
lishes, that complainant has surrendered the note given by
Peacock and McCollum, so that the estate of the latter can
never be called on to pay or defend against it as a claim.
These facts make an essential difference, and show that com-
plainant was to pay and did pay the entire purchase money,
and that McCollum never advanced or paid a single dollar.
In fact, when complainant's agent came to pay the bid at the
master's sale, the money raised on the note lacked about $90 of
paying the amount due the city, and the agent paid it with
his own money, and charged it to complainant. Although
McCollum bid the property off at $6000, the money raised
on the note, the amount paid by the agent of complainant,
and the Peacock mortgage, satisfied the bid.
The evidence establishes beyond doubt that the whole
transaction was for the benefit of complainant, and that she
was to refund the money, with interest. It operated as a loan
to her, and, under the terms of the arrangement, the purchase
at the sale, by McCollum, operated as a mortgage. He was
simply to hold the land until complainant could sell it, and
pay the money, with interest. By the arrangement he took
1873.] Klock et al. v. Walter. 419
Opinion of the Court.
the legal title, but in equity a trust resulted to her. See
Smith v. Saekett, 5 Gilm. 535; Davis v. Hopkins, 15 111. 519;
Coates v. Woodworth, 13 ib. 654; Pensoneau v. PuUiam, 47 ib.
58; Smith v. Doyle, 46 ib. 452 : Fleming v. McHale, 47 ib. 282 ;
Switzer v. Slciles, 3 Gilm. 529; Dennis v. McCagg, 32 111. 439;
Eeigard v. McNeil, 38 ib. 404 ; Reeve v. Strawn, 14 ib. 94 ; 5/'ttc6
v. Honey, 18 ib. 72. Other cases in our own court might be
cited, but these are sufficient to illustrate the rule, that where
a deed is intended to be a security for money, it will be
treated as a mortgage. Or where the money of one person
purchases land, and it is conveyed to another, a trust results
in favor of the person whose money paid for the land.
That the transaction, from its inception to its conclusion,
was intended for the benefit of complainant, seems to be
proved beyond doubt. It is shown in this case that the prop-
erty was worth $16,000. And it would be incredible that
complainant and her agent would make such efforts, and she
agree to pay the entire sum that McCollum bid, simply to
vest him with tke title. Again, when he signed the agree-
ment to convey to Nickerson, he declared he had no interest in
or claim on the property, and that they could give the agree-
ment to convey any shape they chose, but he would only
warrant against his own acts. Had he lived, we have no
doubt he would have conveyed to complainant, without the
slightest hesitation.
Then, if he had no claim in conscience and made none, but
disclaimed all interest, and, as Peacock says, he has received
all of his money, with interest, according to the agreement,
from complainant, why should any person but her have the
land? Why thrust the title upon the heirs of McCollum,
when they only succeeded to his rights, and when he, whilst
performing his last act in connection with this property, de-
clared that he had no claim whatever upon it? Why does
the claim of his heirs rise higher than his? They have done
no act, paid no money, and their ancestor paid none, and
420 Kokf v. Lull. [Sept. T.
Svllabus.
whence their equity ? They have none, and it would be
monstrous to decree it to or permit them to hold it.
The relief might be placed on the ground that McCollum
sold the land to Nickerson. And no one would for a moment
doubt, that if Nickerson had paid the stipulated price, as it
was agreed by the parties, he could have compelled a convey-
ance. And we presume it will not be doubted that such an
agreement may be assigned, so that equity may acquire ju-
risdiction to enforce the performance of the contract in favor
of an assignee. Thus, complainant became the assignee of this
contract, and, as such, paid the stipulated price, and must be
entitled to a conveyance, precisely as Nickerson would, had
he held the instrument and made the payment. Equity ap-
peals strongly to us for the relief sought, and it would be
highly unjust if it were denied.
The decree of the court below is affirmed.
Decree affirmed.
Feedeeick Koef
v.
Ato E. Lull.
1. Building contract — defects in work — whether waived by acceptance.
Where a party accepts work done upon a house by a builder, he does not
thereby waive objections to any latent defect there may be in the work
which, at the time of acceptance, is not open to inspection.
2. Same — certificate of architect — when conclusive of the rights of the
parties. Where a contract for building a house provides that the work
shall be done under the direction of an architect therein named, and
upon his certificate that the terms of the contract have been complied
with, the price agreed upon is to be paid, the certificate of the architect,
made in compliance with the agreement, is conclusive of the rights of
the parties.
3. Same— notice before architect certifies. In such case, it is not neces-
sary, unless so expressed in the contract, for the builder to give notice
before applying to the architect for such certificate.
1873.] Korf v. Lull. 421
Opinion of the Court.
4. Measure of damages — delay in erecting building. Where there
is unreasonable delay by the builder in the performance of a contract to
build a house, the owner will be entitled to damages equal to the rental
value of the premises during the period of delay.
Appeal from the Superior Court of Cook county ; the Hon.
Joseph E. Gary, Judge, presiding.
Mr. Frederick S. Moffett, and Mr. Adoniram Carter,
for the appellant.
Mr. John Woodbridge, for the appellee.
Mr. Justice Scott delivered the opinion of the Court :
This proceeding was to establish a mechanic's lien. The
work and labor were performed and the materials furnished
under a written contract to do the carpenter work, which,
by the specifications, was to include the plastering, plumbing
and painting on a brick building which appellee was having
erected on the premises described in the petition. Extra
work was done, and materials furnished outside the contract,
for which a lien is claimed.
The defense alleged in the answer is, the work was not
finished within the time limited, nor was it done in accordance
with the contract. It is insisted, by reason of the inferiority
of the workmanship and materials, and the delay in complet-
ing the work, appellee sustained damages exceeding any sum
that could be due to appellant. The master to whom the
cause had been referred, reported there was due appellant, on
the contract, and for extra work and materials, $847.59.
Exceptions taken to the report were sustained, and the peti-
tion dismissed. That decision is assigned for error.
There is but little controversy between the parties in regard
to the extra labor and materials. The master seems to have
deducted from the account, all the evidence shows appellee
was entitled to have deducted on account of erroneous
charges.
422 Koef i>. Lull. [Sept. T.
Opinion of the Court.
It is insisted, the quality of the workmanship and materials
can not be inquired into by reason of two facts alleged in the
petition, neither of which is denied in the answer: First,
that appellee accepted the work without objection ; and
second, she is concluded by the action of the architects, upon
whose certificate that the terms of the contract had been com-
plied with, she had expressly agreed to pay for the labor and
materials furnished.
The first position assumed is not tenable. The principal
item of damage, it is claimed, arises out of the defective man-
ner in which the plastering was done. A party who has
accepted work, is not held to have waived defects in it, if, like
plastering, it may have latent defects which are not open to
inspection. The same may be said of other work not open
to inspection when it was accepted. VanBuskirk v. Murden,
22 111. 446.
As to the second point, the certificate of the architects must
be deemed and taken as conclusive of the rights of the parties,
unless impeached for fraud or mistake, neither of which is
alleged. The agreement expressly provided, the work should
be done under the direction of the architects, and upon their
certificate that the terms of the contract had been complied
with, and upon sufficient evidence all claims for labor and
materials against the contractor had been discharged, the
consideration agreed upon was to be paid. The certificate
was made by the architects in exact compliance with the
agreement, and exhibited to appellee before suit was brought.
Proof was- made, there were no liens on the building in favor
of sub-contractors under appellant. The prima facie case
made by proof of these facts, and of the amount unpaid, was
not overcome by anything contained in the record. It is not
proven the certificate of the architects was obtained by any
artifice, fraud or mistake. There is no suggestion, by the
evidence or otherwise, that it was not obtained in good faith.
The contract for the plastering was sub-let by appellant,
and was done under the direction of the architect in charge
1873.] Korf v. Lull. 423
Opinion of the Court.
of the work. It was paid for on the certificate of the archi-
tect present, superintending the work for appellee, and this
ought to be held to operate as an acquittance to appellant. If
there were any defects, it is supposed the architect possessed
skill enough to have detected them as the work progressed.
He ought to have done so, and withheld his approval. It
would impose a great hardship upon appellant, to make him
liable for damages on account of the plastering, after the
sub-contractor had been fully paid under the direction of
appellee's own agent. The doctrine of the conclusive character
of the certificate of the architect selected by the parties, under
whose directions the work is to be performed, and who is to
determine when the terms of the contract have been com-
plied with, was settled by this court in McAuley v. Carter, 22
111. 53, where the exact point was involved, on the authority
of the Board of Canal Trustees v. Lynch, 5 Gilm. 521, and
McAvoy v. Long, 13 111. 147.
The principle is, the decision of the umpire agreed upon
is final, from which there is no appeal, and can only be
attacked for fraud or evident mistake. In McAuley v. Carter,
supra, it was definitely ruled, where no notice was required
by the contract, none was necessary before applying to the
architect for his decision. He was declared to be the sole
judge as to the matters submitted to his supervision, and
both parties were held to have all necessary notice, and are
bound by his acts.
This rule imposes no hardship. Parties desiring it can
readily stipulate notice shall be given of the time and place
where the architect will render his decision. In the absence
of any agreement for notice, the parties will be deemed to
have waived it. In the case at bar, the architects were the
agents of appellee, and she will be concluded by their acts,
in the absence of fraud or evident mistake, although no
notice had been given of an intention to apply to them for a
certificate. She had not contracted for notice, and the law
imposed no obligation to give it.
424 Koef v. Lull. [Sept. T.
Mr. Justice McAllister, dissenting.
It is insisted, the case of Packard v. Van Schoich, 58 111. 79,
holds a different doctrine. It was not intended, in that case,
to change the rule that had been adopted in so many well
considered cases in this court, and which had been uniformly
adhered to, through a long series of years, as the settled law.
What was said in the opinion upon the question of notice,
was not necessary to the decision of the case, and can, with
great propriety, be regarded as a suggestion to give notice,
in view of the fact difficulty had sprung up between the par-
ties, in case a new certificate should be applied for in lieu of
the one held to be defective. It was, no doubt, a timely
intimation in that particular case, and it would be well if
architects, in all cases where it is known there is a misunder-
standing between the parties, would give reasonable notice of
the time and place they will render a decision, in cases where
no notice is provided for in the contract. The case should
be understood in this sense, and not as overruling the pre-
vious decisions on the subject.
The testimony seems to indicate, there was some unreason-
able delay beyond that caused by the brick mason. Appellee
would be chargeable with all delay caused by her employees,
as her own act. On another trial, if the court shall find
there was unreasonable delay on the part of appellant in
completing his part of the work, appellee would be entitled
to damages equal to the rental value of the premises during
that period.
The decree dismissing the petition will be reversed, and
the cause remanded for further proceedings.
Decree reversed.
Mr. Justice McAllister, dissenting :
I do not concur. By the contract, appellant was to do the
carpenter work, the plastering and plumbing according to
certain specifications, and within a specific time. The terms
and conditions upon which appellee was to pay for the work
were as follows :
1873.] Korf v. Lull. 425
Mr. Justice McAllister, dissenting.
"2d. In consideration of the foregoing, the said Mrs. O.
R. W. Lull agrees to pay the said F. Korf, contractor, upon
certificate of said architects that the terms of said contract
have been complied with, and upon sufficient evidence that
all claims upon the building for work and materials, up to
the time of payment, are discharged, the sum of thirty-nine
hundred dollars, ($3900,) in manner following, viz: One
payment when the roof is on ; one payment when the plas-
tering is on • it being understood that no payment shall
exceed eighty per cent of the value of the work performed
and materials furnished. The work to be commenced as
soon as the contract has been signed, and completed as soon
as the 10th day of August, 1872."
The certificate of the architects that the terms of the con-
tract had been complied with, was a condition precedent to
appellant's right to payment. Packard et al. v. Van Schoick,
58 111. 79.
As showing compliance with that requirement, appellant
relied upon two certificates, one signed by one architect alone,
and another signed by both. These certificates are as fol-
lows:
"Chicago, Oct. 17, 1872.
"Mr. F. Korf: Dear Sir — This is to certify that the plas-
tering portion of the work on Mrs. Lull's house, on Maple
street, Chicago, is accepted, with these exceptions: That the
sides of the entrance to the attic are to be plastered, and the
crack above the second story window finish is to be filled.
"Yours, etc.,
" F. W. Copeland, Arch't."
" Chicago, Nov. 2, 1872.
" This is to certify, that Mr. F. Korf has completed the
carpenter's portion of the work on a dwelling house for Mrs.
O. K. W. Lull, on Maple street, Chicago, and is entitled to
the balance of the money due him, upon his proof that all
debts for labor and materials used in the building, have been
426 Smith et ah v. "Wunderlich et al. [Sept. T.
Syllabus.
discharged, or upon his giving proper orders for their dis-
charge.
[Signed] "F. W. Copeland, and
"F. O. Weary, Architects/'
The first of these certificates relates only to the plastering,
and does not show its completion. The second relates to the
" carpenter's portion" of the work, but does not profess to
certify that the terms of the contract have been complied
with. The work might be completed, but not within the
time, or according to the specifications of the contract.
McAvoy v. Long, 13 111. 151 ; Morgan v. Birnie, 9 Bing. 670;
Smith v. Binggs, 3 Denio, 73.
Mr. Justice Scholfield : I dissent from the opinion of
the majority of the court, for the reasons stated in the dis-
senting opinion of Mr, Justice McAllister.
Peter Smith et al.
v.
Charles Wunderlich et al.
1. Trespass quare clausum fregit. To maintain trespass to real
property, the plaintiff must have the actual possession, by himself or his
servant, at the time the injury is committed, except only where he is the
owner, and the land is unoccupied, or there is no adverse possession.
2. Measure op damages — in trespass to realty. The gist of this action
is, the injury done to the possession, and if the trespass amounts to an
ouster of the plaintiff, he can, in an action brought before re-entry, re-
cover damages only for the trespass itself, or first entry.
3. A disseizee may maintain trespass against the disseizor for the dis-
seizin itself, because he was then in possession, but not for an injury after
the disseizin, until he gains possession by re-entry, and then he can have
his action for an intermediate damage.
4. But, if the disseizee gains possession by re-entry after the disseizin
and before suit, he may recover damages for the mesne profits as well as
for the first entry.
1873.] Smith et al. v. Wunderijch et al. A.TI
Statement of the case.
5. Where a tenant is ousted by his landlord before the expiration of
his term, and, without any re-entry, he brings an action of trespass, he can
recover damages for the ouster itself, and all the necessary and natural
consequences thereof, but not for the value of his unexpired term, or for
the mesne profits thereof.
6. Same — exemplary damages. In an action of trespass to real estate,
if the circumstances of aggravation render it impossible to apply any
fixed rule of law, the jury may give exemplary damages, to be graduated
with reference to the motives which actuated the defendant, and the man-
ner in which the act complained of was committed.
7. The pecuniary condition of the defendant may be considered, not
for the purpose of showing how much he is able to pajr, but that the jury
may determine how much his rank and influence in society, and the ex-
tent of the injury, are increased thereby, and it is error to instruct a jury
that, in fixing the amount of exemplary damages, they may take into con-
sideration the pecuniary ability of the defendant to pay.
Appeal from the Circuit Court of Cook county; the Hon.
Lambert Tree, Judge, presiding.
The action was trespass quare clausum /regit, by appellees
against appellants, to recover damages for a forcible ouster of
the former by the latter from premises described as No. 24
West Madison street, Chicago.
The declaration, containing four counts, alleged possession
in plaintiffs; that they carried on the business of shoemakers
therein; an ouster therefrom by defendants on Dec. 11, 1871,
with sicontinuando, under a videlicit, to the time of commence-
ment of suit, and, as special damages, that plaintiffs derived
great gains, etc., from their business, to-wit : $1000 per month ;
the removal of certain goods and chattels (describing them,)
from the premises; spoiling the same; taking and carrying
them away; the breaking up, hindering and preventing them
from carrying on said business, and depriving them of the
use of said premises.
The suit was brought January 27, 1872. The defendants
appeared and pleaded, separately, the general issue. Trial
was had at the November term, 1872, before the court and a
jury.
428 Smith et al. v. Wunderlich et al. [Sept. T.
Statement of the case.
Evidence was given tending to show that, although the
locus in quo was favorably located for plaintiffs' business, yet
it was a small wooden building, only 18 feet in width; that
a partition had been placed lengthwise through the room con-
stituting the lower story, making each of the apartments 9
feet in width ; the west of these was occupied by plaintiffs,
where they carried on, as co-partners, the business of shoe-
makers; that the room so occupied by plaintiffs, being of the
width of about 9 feet, had a small, dark store-room in the
rear, the front constituting a shop, which would accommodate
only four workmen; that this west part of the lower floor
occupied by plaintiffs was held by them under a lease from
defendant Dunne, which, according to plaintiffs' testimony,
was a lease until May 1, 1872, while Dunne testified that it
was only from month to month. The rent was $30 per month.
At the time of the alleged ouster, Dunne was occupying the
east half of the lower floor, for a tailor shop, and the whole
upper part as a residence for himself and family. It ap-
peared that Dunne was the owner of the building, but had
leased the ground of defendant Buck, this lease running until
the 30th of April, 1874, at a ground rent of $275 per year.
It further appeared that, December 1, 1871, (and the evi-
dence tends to show with Dunne's consent.) Buck executed a
lease of this same ground to defendant Smith, running till
May 1, 1874, at the rental of $75 per month; that, Decem-
ber 2, 1871, Dunne entered into a contract with said Smith,
to sell to the latter the said building, and assign to him his
(Dunne's) lease from Buck, for the consideration of $2000,
of which $25 was paid down, the balance to be paid when he
got possession of the building, which Dunne was to give on
or before the 9th of the same month.
The plaintiffs' evidence tends to show that, early Monday
morning, being the 11th of that month, an opening was made
in the partition between Dunne's shop and that of the plain-
tiffs, no person being, at the time, in the latter, and all the
goods and chattels in plaintiffs' shop were removed therefrom
1873.] Smith et at. v. Wunderlich et al. 429
Statement of the case.
into Dunne's shop; that this being done. Smith paid the bal-
ance due on the sale of the building, and Dunne executed to
him an assignment of his lease from Buck, and Smith there-
after retained possession of the whole premises, except that
plaintiffs made a re-entry, by force, during the day, but kept
possession only for a few hours, and have made no re-entry
since, nor did they attempt, by suit for forcible entry or eject-
ment, to regain possession.
Evidence was given by plaintiffs tending to show that de-
fendant Buck was worth half a million of dollars, Smith, about
thirty thousand dollars, and Dunne, from ten to fifteen thou-
sand dollars; also, against the objection of defendants, gave
evidence tending to show the difference between the rental
value and the rent they had to pay, as well as the profits of
their business down to May 1, 1872.
Upon the plaintiffs' right of recovery, and the question of
damages, the court instructed the jury as follows:
"1st. If the jury shall believe, from the evidence, that
plaintiffs, Wunderlich and Siebert, had a verbal lease of the
premises described in the declaration, which extended up to
the first day of May, 1872, and that they were wrongfully
ousted from said premises by the acts of the defendants, then
the defendants are liable, and the damages should be : first,
the difference between the real rental value of the premises,
as appears from the evidence, from the time they were so
ousted, and the amount which the plaintiffs were to pay as
rent therefor, until May 1st, 1872; second, any loss sustained
by them in their business, shown by the evidence as the
necessary consequence of being deprived of the premises, after
the time when the jury shall believe, from the evidence, said
plaintiffs were ousted ; but the defendants are not liable for
any such loss in plaintiffs' business, as plaintiffs could, by
ordinary and reasonable prudence in their business, prevent.
" 2d. If the jury shall believe, from the evidence, that
the plaintiffs, Wunderlich and Siebert, leased the premises in
430 Smith et ah v. Wunderlich et al. [Sept. T.
Statement of the case.
question from Dunne by a verbal lease for one year from and
after the first clay of May, 1871, and that they took possession
under said lease, and performed, on their part, all the condi-
tions of said lease; and if the jury believe, from the evidence,
that, on the 11th day of December, 1871, any of the defendants
entered upon said premises, against the will of the plaintiffs,
Wunderlich and Siebert, and ejected and kept them from the
possession and use of said premises up to the first of May, 1872,
then, and in that case, such of the defendants as the evidence
may show so entered upon said premises, are liable for all the
damages which Wunderlich and Siebert have sustained to
their business, by being so ejected from and kept out of the
possession of said premises, as far as the same appears from
the evidence.
"3d. If the jury believe, from the evidence, that any of
the defendants are guilty, and that, in committing the tres-
passes in question, such defendants were actuated by motives
of malice and oppression, then the jury may, in addition
to the damages which the jury may, from the evidence, be-
lieve Wunderlich and Siebert actually sustained by reason
of such trespasses, assess such further damages as the jury
shall think proper, as a wholesome punishment to such de-
fendants, and as a public example to wrongdoers, and, in
arriving at and determining the amount of such punitive or
exemplary damages, the jury may take into consideration the
pecuniary ability of each of such individual defendants so
guilty of said trespasses, if the jury find, from the evidence,
any trespass was committed, to pay such punitive or exem-
plary damages.
"5th. The jury are instructed, as a matter of law, if they
find, from the evidence, that any of the defendants directed,
aided or advised the wrongful acts laid in the declaration,
and that said wrongful acts were committed as laid, then the
jury must find such defendants, who so directed, aided or ad-
vised the commission of such wrongful acts, guilty, as if they
had committed the trespasses with their own hands."
1873.] Smith et al. v. "Wunderlich et al. 431
Opinion of the Court.
The jury, by their verdict, found all the defendants guilty,
and assessed plaintiffs' damages at $8000. The defendants
entered separate motions for a new trial, and upon the ground,
among others, that the damages were excessive. Plaintiffs
thereupon entered a special remittitur of $475, but the court,
requiring that a further and general remittitur be entered of
$3525, which was done, overruled the several motions for
new trial, and gave judgment against defendants upon the
verdict, for $4000, and the latter appealed to this court.
Mr. B. W. Ellis, for the appellant Nicholas Dunne.
Mr. Geo. Gardner, for the appellant Anson H. Buck.
Messrs. Rountree & McHugh, for the appellant Peter
Smith.
Mr. T. A. Morgan, for the appellees.
Mr. Justice McAllister delivered the opinion of the
Court :
This was trespass quare clausum fregit, by appellees against
appellants. The cause of action declared on, was an ouster
of plaintiffs, by defendants, from a certain shop on Madison
street, Chicago, wherein plaintiffs, as partners, then were, and
for some time previously had been, carrying on the business
of shoemakers. The ouster was set out as occurring Decem-
ber 11, 1871, with a continuando to time of commencement
of suit. The suit was brought January 27, 1872. The plain-
tiffs, on the trial, gave evidence tending to show that thev
held the premises under a verbal lease from Dunne, one of
the defendants, and that their term extended until May 1st,
1872; also gave evidence, against the defendants' objections,
of the difference between the actual rental value of the prem-
ises, and what they were to pay as rent, down to the first day
of May, 1872; also gave evidence tending to show prospective
profits in their business to that time.
432 Smith et al. v. Wtjnderlich et al. [Sept. T.
Opinion of the Court.
By the first instruction given for plaintiffs, the court di-
rected the jury that, if they found, from the evidence, that
plaintiffs had a verbal lease of the premises to the first day
of May, 1872, and were wrongfully ousted therefrom by the
acts of the defendants, then the latter were liable, and the
damages should be: first, the difference between the rental
value of the premises, as appears from the evidence, from the
time they were so ousted, and the amount plaintiffs were to
pay as rent until May 1st, 1872 ; second, any loss sustained by
them in their business, shown, by the evidence, as the neces-
sary consequence of being deprived of the premises, after the
time when the jury shall believe, from the evidence, the
plaintiffs were ousted.
To the giving of this instruction defendants excepted, and
now assign it for error.
There is no evidence tending to show that, after the ouster
was consummated, they made any lawful re-entry, or brought
any action of forcible entry and detainer, to recover posses-
sion; but, on the contrary, they brought this action to recover
for the ouster, before their term expired, and, by the instruc-
tion now in question, the jury were directed, in assessing
damages, to first allow plaintiffs the rental value of the prem-
ises above the rent they were paying, for the residue of the
term, and then, any loss sustained in their business as a neces-
sary consequence of the ouster, after the time it occurred.
The words, any loss, would, of course, include the loss of profits
which they would have realized, if they had not been ousted,
by the use of the premises, in carrying on their business.
The jury could not understand it otherwise, because the basis
was laid for estimating prospective profits, by showing what
had been the net profits of their business for the month next
previous to the ouster, which included not only their own
time and labor, but the use of the premises in producing
them. It is obvious, that plaintiffs could not realize the
advanced rental value over and above what they had to pay
for rent, as an income independent of the profits derived from
1873.] Smith et al. v. Wunderlich et al. 433
Opinion of the Court.
using the premises in conducting their business, without
renting or otherwise disposing of them to another party, and
common experience teaches us that they could not do that,
and still retain them, to be used for carrying on their busi-
ness.
There may be cases where, from the peculiar circumstances
of the disseizee's business, and the actual rental value of the
premises, the difference between the actual rental value and
what it was paying as rent, would not be full compensation
for the loss in having his business broken up by the disseizin.
Where such is the case, the plaintiff has been permitted to
make his election, and, instead of recovering the rental value,
demand compensation for the loss of profits in his business,
occasioned by the ouster. The case of Chapman et al. v. Kirby,
49 111. 211, though an action on the case, and not trespass,
was decided upon that principle ; but it seems to us that to
allow as a measure of damages both the advanced rental value,
and prospective profits, which could be realized only by the
use of the premises by the plaintiffs themselves, would be to
establish mere arbitrary rules of damage, devoid of sense or
justice either in their basis or application.
But, aside from improperly uniting the two grounds of
damage, is the rule as to the rental value, under the circum-
stances of this case, a correct one? It is laid down by the
instruction under consideration, without qualification, and is,
in effect, that, where a tenant for years is ousted by strangers
— we say strangers, because there is no allegation in the decla-
ration about the tenancy, or one of the defendants being les-
sor— the disseizee, without a subsequent re-entry, may bring
trespass for the disseizin, immediately after it is effected, and
recover, as one species of damage, the value of the unexpired
term. Suppose the term has five, ten or twenty years to run.
Surely, there can be no such a rule as that ; because, if there
were, as applicable to terms for years, why not, upon the same
principle, extend it to any greater estate? Suppose, again,
that plaintiffs' unexpired term had five years to run, and,
28— 70th III.
434 Smith et al. v. Wunderlich et al [Sept. T.
Opinion of the Court.
without any re-entry, they had waited four years before bring-
ing this suit, and then another year had elapsed before trial,
the Statute of Limitations would not have been transcended;
but could they recover mesne profits, or the rental value for
that entire period ? If for five months, why not for five years ?
The answer to these queries is to be found in the established
rules of the common law.
To maintain trespass to real property, the plaintiff must
have the actual possession, by himself or his servant, at the
time when the injury was committed. The only exception to
this rule is, where the plaintiff is owner, and the lands are
unoccupied, or there is no adverse possession. 1 Chit. PL
177, and cases in notes; Sedg. on Dam. 134; Dean v. Com-
stock, 32 111. 173. The gist of the action is, the injury to the
possession.
It follows, from the above rule, that if the trespass amount
to an ouster of the plaintiff, he can recover damages only for
the trespass itself, or first entry; for though every subsequent
wrongful act is a continuance of the trespass, yet, to enable
the plaintiff to recover damages for these acts, there must be
a re-entry. 1 Chit. PI. 177; Sedgwick on Dam. 135; Addi-
son on Torts, 304. "A disseizee may have trespass against
the disseizor, for the disseizin itself, because he was then in
possession; but not for an injury after the disseizin, until he
hath gained possession by re-entry, and then he may support
this action for an intermediate damage." Taylor on Landlord
and T. sec. 783. See, also, Blac. Com., book 3, p. 210.
In Monchton v. Pashley, 2 Ld. Eaym. 974, s. c. 2 Salk. 638,
Lord Holt said : "As to the case of an entry with ouster,
it may be set forth specially in the count or not, with a con-
tinuando or diversis diehus et vicibus, between such a day and
such a day ; but then you must prove that the plaintiff re-
entered before the action brought, or else you can not assign
the mesne trespass; for, by the ouster, the defendant has got
the plaintiff's possession, and he can not be a trespasser to the
1873.] Smith et al. v. Wunderlich et al. 435
Opinion of the Court.
plaintiff; but when the plaintiff re-enters, the possession is
in him ab initio, and he shall have the mesne profits."
In Case v. Shepherd, 2 Johns. Cases, 27, the court say : " The
only question, therefore, is, as to the extent of the damages
to be recovered, or whether the defendant is to be made
responsible for the consequential damages of the ouster. In
this case, the trespass is laid with a continuando; but the dis-
tinction as to the amount of damages to be recovered in this
case is this: After an ouster, you can only recover for the
simple trespass, or the first entry; for though, when there is
an ouster, every subsequent act is a continuance of the tres-
pass, yet, in order to entitle the plaintiff to recover damages
for the subsequent' acts, there must be a re-entry; but, after
a re-entry, he may lay his action with a continuando, and
recover mesne profits, as well as damage for the ouster. 1 Ld.
Kaym. 692; 6 Salk. 639; 2 Ld. Raym. 974; 1 Leon. 302,
319; 13 Coke, 600; MenviVs Case, 3 Blac. Com. 210; Co.
Litt. 257. The present suit was commenced before any re-
entry by the plaintiff. He is, therefore, entitled to recover
damages for the first entry only, or single trespass, and not
for the crops." See, also, Holmes v. Seely, 19 Wend. 507;
Rowland v. Rowland, 8 (Ham.) Ohio R.; Shields v. Henderson,
1 Lit. (Ky.) R. 239.
In Allen v. Thayer, 17 Mass. R. 300, the court say : " Now,
a disseizee can not maintain trespass for the wrong done after
the disseizin, and before a re-entry ; for the freehold is in the
disseizor all the time after the disseizin, excepting in cases
where the estate of the disseizee shall have determined so
that he could not re-enter ; as, where he was tenant for years,
and his term expired, or was tenant per aider vie, and the
cestui qui vie died."
In the case at bar, the plaintiffs' term had not expired, and
did not expire until several months after this suit was brought.
There was ample time for them to have brough't an action
of forcible entry and detainer, and thus have regained pos-
session. That done, the law, by a kind of jus postliminii,
436 Smith et al. v. Wundeelich et at. [Sept. T.
Opinion of the Court.
or right of reprisal, would regard the possession as having
been all along in them (3 Blac. Com. 210) ; and then, after
the expiration of their term, bringing this suit, they would
be entitled to recover, as mesne profits, the value of their lease
or term ; for, as a general rule, the annual value of land is
the measure of mesne profits. Adams on Ejec. 391 ; Sedg. on
Dam. 124. The theory on which such recovery could be had
would be, that the trespass was continued to the end of the
term.
The plaintiffs not having re-entered, and their lease not
expiring until many months after the ouster, they were not,
upon the principle of the authorities cited, entitled to recover
mesne profits from the ouster to the end of their term, but
must be confined to the ouster itself, or the single trespass.
They, of course, are entitled to recover for all the necessary
and natural consequences of that act, in view of all the cir-
cumstances belonging to it, including such loss as they sus-
tained by breaking up their business, if it was thereby
broken up, and if circumstances of aggravation are shown,
which render it impossible to apply any fixed rule of law,
the jury have the power to give exemplary damages, to be
graduated with reference to the motives which actuated the
defendants, and the manner in which the act complained of
was committed. Sherman v. Dutch, 16 111. 283.
The point is strenuously urged that there was no evidence
upon which the jury would be justified in holding Buck
liable for the trespass. We are of opinion that, considering
his position, the motive he had, the facts and circumstances
in evidence, there was sufficient to go to the jury upon the
question of his participation. The plaintiffs gave evidence
tending to show that the ouster was effected by others, and that
Smith, the purchaser, took or came in under the disseizors. If
he did not participate, or aid, or abet in, the disseizin itself,
but in fact came in under the disseizor, he would not be
liable in this action ; for trespass does not lie against a per-
son coming in under the disseizor. Siford's Case, 11 Co. B. 46.
1873.] Smith et al. v. Wuxderijch et al. 437
Opinion of the Court.
If, however, he came in under disseizors, still, if he par-
ticipated in the original act of disseizin, he would be liable,
and if McCarthy participated, or aided and abetted, and in
so doing he was acting under the command or direction of
Smith, the latter would be liable. But if McCarthy was
employed by Smith for another purpose, and of his own mere
motion participated in the disseizin of plaintiffs, then such
interference would not make Smith liable.
On the question of punitive damages, the plaintiffs gave
evidence tending to show that defendant Buck was worth
half a million of dollars, and that Dunne was worth from ten
to fifteen thousand dollars; and in their third instruction the
court instructed the jury that, "in arriving at, and determin-
ing the amount of such punitive or exemplary damages, the
jury may take into consideration the pecuniary ability of
each of such individual defendants so guilty of said trespasses,
if the jury find, from the evidence, any trespass was com-
mitted, to pay such punitive or exemplary damages."
When, in trespass against several defendants, they plead
not guilty, or several pleas, and the jury find for the plain-
tiff against all the defendants, they can not assess several
damages; there can be but one assessment, and that must be
against all the defendants. Haydon's Case, 11 Coke R. 8;
Yeazel v. Alexander, 58 111. 254; Sedgwick on Damages, 584.
It is well understood that in actions of tort, where the
element of punishment is introduced into the damages, the
only reason ever assigned for permitting inquiry into the
condition and pecuniary circumstances of the defendant is,
that what would be a severe punishment for a poor man, by
way of fine or exemplary damages, might not be felt by one
that was rich. Upon this principle, alone, has evidence of,
and inquiry into the pecuniary circumstances of the defend-
ant been held competent and proper.
Now, here are three defendants, sued jointly in trespass. If
found guilty, the same amount of damages must be assessed
against all. One defendant is worth half a million of dol-
438 Shipherd v. Field. [Sept. T.
Syllabus.
lars, another ten or fifteen thousand dollars. The court
directs the jury that they may take into consideration the
pecuniary ability of each individual defendant to pay puni-
tive or exemplary damages, in determining the amount of
such damages. This is subversive of the very reason upon
which the inquiry into the pecuniary circumstances of the
defendant can alone be justified. It subjects the defendant
worth ten thousand dollars, and it would be the same in
principle if he was worth not a dollar, to a measure of pun*
ishment which would be felt by one worth half a million, and
the verdict of $8000, returned by the jury, shows that they
administered the punishment so as to be felt by the wealthiest
of the three defendants. In Railroad Company v. Smith, 57
111. 517, an instruction, the same in effect as that under con-
sideration, was held erroneous.
The true rule is stated by Greenleaf: " The jury are to
inquire, not what the defendant; can pay, but what the plain-
tiff ought to receive. But so far as the defendant's rank and
influence in society, and, therefore, the extent of the injury,
are increased by his wrealth, evidence of that fact is pertinent
to the issue." 2 Greenleaf Ev. sec. 269.
The instruction in question made the ability to pay, the
criterion. In Holmes v. Holmes, 64 111. 294, such an instruc-
tion was held erroneous.
The judgment of the court below will be reversed and the
cause remanded.
Judgment reversed.
Jacob E. Shipheed
V.
Burgess P. Field.
1. Agent — liability of agent loaning money, for not talcing the security
required. If a party, engaged in the business of loaning money on real
estate security, solicits money to loan, promising to take a first mortgage
1873.] Shipherd v. Field. 439
Opinion of the Court.
on real estate, in value double the sum loaned, and obtains the money,
which he loans, taking a mortgage on real estate, which is subject to prior
incumbrances, which are unknown to the party advancing the money, and
under which the property mortgaged is sold, whereby the debt is lost,
such agent will be responsible to the person advancing the money, in an
action on the case.
2. The fact, in such a case, that the mortgaged property was of double
the value of all the incumbrances on it, will not relieve the agent of lia-
bility to his principal, who had no knowledge of any prior liens until the
property was lost by sale under a prior deed of trust:
3. Same — whether a delay in tendering securities to agent is sufficient to
preclude a recovery. Where an agent loans his principal's money, taking-
inadequate security therefor, in violation of his agreement, so that the
same is lost, and he induces his principal to wait about a year, in the
hope of being able to collect his money, this will dispense with an earlier
offer to return the securities by the principal, to him, before bringing suit
to recover for the loss sustained by him.
4. Pleading— surplusage. Where matter in a pleading is nonsense, by
being contradictory and repugnant to something precedent, the precedent
matter which is sense shall not be defeated by the repugnancy which fol-
lows, but that which is contradictory shall be rejected, and this more
especially after verdict.
5. Arrest of judgment. A judgment will not be arrested for a defec-
tive allegation in a pleading, which, from the context, clearly appears to
be a mere clerical error of the pleader.
Appeal from the Circuit Court of Cook county; the Hon.
Lambert Tree, Judge, presiding.
Mr. Isaac G. Wilson, and Mr. T. Lyle Dickey, for the
appellant.
Messrs. Cooper, Garnett & Packard, for the appellee.
Mr. Justice Sheldon delivered the opinion of the Court:
This was an action on the case, brought by Field, appellee,
against Shipherd, appellant, as a real estate loan-broker in
the city of Chicago.
The substantial charge contained in the declaration is, that
Field placed in the hands of Shipherd, who was engaged in
the business of loaning money, secured on real estate in Cook
440 Shipherd v. Field. [Sept. T.
Opinion of the Court.
county, the sum of $3000, to be loaned on first mortgage real
estate security of twice the value of the money loaned ; that
Shipherd loaned the money to one Montgomery, taking his
notes, secured by a trust deed to one Kelly, as trustee, upon
18 acres of land in Cook county; that said trust deed was a
second lien only, and was subject to two trust deeds upon the
property executed to John G. Rogers, to secure a part of the
purchase money, which last mentioned trust deeds were a
valid first lien ; that, afterwards, Rogers, as trustee, sold the
premises under the trust deeds to him, whereby Field lost the
benefit of his security; that Montgomery was wholly insol-
vent.
The plaintiff recovered in the court below $2760, the amount
actually advanced by Field, and Shipherd has appealed.
The principal ground insisted upon for the reversal of the
judgment is, that the verdict was palpably contrary to the
evidence, and the court erred in not granting a new trial.
The only real point of controversy upon the facts is,
whether Kelly was so far the agent of Field, and participated
to such an extent in the making of the loan and taking: the
security, as to relieve Shipherd from the responsibility of
taking inadequate security.
It appeared in evidence, that Field resided in Vermont.
Kelly was a farmer, residing at Wheaton, in DuPage county,
in this State. At an interview had between Kelly and Ship-
herd, the latter proposed to Kelly that he should solicit, from
his friends at the East, money for Shipherd to loan, saying
there had never been a dollar lost through his office, and never
should be, and explained to him particularly the mode in
which he made loans; that he took only first mortgage real
estate security, on property worth twice the amount loaned ;
that he required an abstract of the title to the property, which
he had examined by competent counsel; that he himself did
not pretend to examine any abstract at all, and promised
Kelly that, on all moneys he would solicit for him to loan,
he would give him two per cent, and that Kelly should not
1873.] Shepherd v. Field. 441
Opinion of the Court.
be at any trouble ; that he (Shipherd) would see to all the
papers. Kelly, afterward, at the instance of Shipherd, went
East for the purpose of procuring $20,000 of one Conant, for
Shipherd to loan. He there met Field ; told him he was
there to get a loan for Shipherd; that the latter had solicited
money to loan, and offered him two per cent for all that he
could get from his friends East, and related to Field Ship-
herd's mode of making loans, and the kind of security he
took, as Shipherd had previously detailed to Kelly. Field
then partially promised to let him have $2000, to make out
the $20,000 from Conant. Kelly returned to Chicago. Ship-
herd inquired if he had made arrangements for any more
money, and Kelly told him that Field, a friend of his, had
some that he would let come at a certain per cent. Afterwards,
Shipherd telegraphed Kelly to come to Chicago, and told him
he wanted $3000 for Montgomery, and wished him to write to
Field for $3000. Montgomery, who was introduced to Kelly
by Shipherd, joined in the request. Kelly wrote, and Field
sent the money accordingly to Kelly, which was handed over
to Shipherd by Kelly, on the delivery to him by Shipherd of
Montgomery's notes and trust deed.
There was a stipulation in the case, on the part of Ship-
herd, that he received the money from Field, to be loaned by
him for Field, on real estate security, and that he loaned the
same to Montgomery, and received from the latter his notes
therefor, and that Shipherd, in order to secure the payment
of the notes, received of Montgomery the trust deed in ques-
tion.
The weight of the evidence goes to show that, so far as
concerned the facts, Kelly had equal means of knowledge
with Shipherd of the kind of security that was taken, and
that he accepted the trust deed from Shipherd, supposing it
to be the first lien upon the property, as he immediately
informed Field it was, on the transmission to him of the
securities.
442 Shipheed v. Field. [Sept. T.
Opinion of the Court.
The claim on behalf of Shipherd is, that Kelly was the
agent of Field, for all purposes of the loan, and that Kelly's
knowledge of the facts, and approval and acceptance of the
security, were those of Field ; that Sbipherd's part in the trans-
action was really no more than that of bringing the parties
together, by the introduction of Montgomery to Kelly; that,
from that time, Shipherd's responsibility ceased, and that the
security was in fact arranged and taken by Field himself,
through his agent, Kelly.
Kelly was the agent of Field in some particulars, as, in
receiving the money and paying it over to Shipherd, and
receiving from him the papers; but we think the jury were
justified in finding that Kelly was not the agent of Field
for the examination of the title and the taking of the re-
quired security. For that purpose, Field relied upon Ship-
herd, as he expressly testifies. He had the right to expect
that Shipherd would take a first mortgage security — one that
would be pronounced such by competent counsel, as he had
held out that he would do, according to Kelly's testimony.
Kelly, unversed as he was in such affairs, might well have
supposed that Field's trust deed was the first lien, because it
was first recorded; but no legal opinion to that effect had
been obtained by Shipherd. He had merely obtained an
abstract of title, with the opinion of a competent attorney
that the title was good in Montgomery, subject to the incum-
brances thereon, created by him, or against him.
Had Shipherd sought competent legal counsel as to whether
Field's trust deed was the first lien, and disclosed the facts
which Montgomery testifies that he communicated to him,
he would have been advised that it was but a second lien,
and the loss to Field would not have happened, as the testi-
mony shows that neither Field nor Kelly would knowingly
have accepted a second mortgage security.
Another point made is, that the land taken in security was
at least double in value all the incumbrances on it, and that
Kelly could have safely paid off* the Eogers first incum-
1873.] Shipherd v. Field. 443
Opinion of the Court.
brance, so as to have protected the Field mortgage. The
evidence tends strongly to show that Kelly did not suppose
but that the Field mortgage was the first lien upon the prop-
erty, until he was informed to the contrary, when it was too
late for him to attend the Rogers sale, and bid on the prop-
erty. After the sale by Rogers, it was out of his power to
redeem; but, though he may have been seasonably aware
that the Rogers incumbrance was a first lien on the property,
we do not see that it was his duty to raise the money neces-
sary to pay off the Rogers incumbrance. It may have been
out of his power to do so, the incumbrance being of the
amount of about $6000. He may have been entirely unwil-
ling, and it may have been detrimental to his interest to
invest such an amount in the property. If any one ought to
have clone that, it would seem more properly to have devolved
upon Shipherd, who had full opportunity to do so, and through
whose negligence, or breach of promise, the necessity for
doing it had arisen.
But it is not pretended that Field himself knew of the
existence of any prior lien upon the property, until after the
title was irredeemably gone by the Rogers sale, and we can
not perceive why this objection should defeat his action.
On full consideration of the testimony, we can not say that
the finding of the jury is so manifestly against the weight of
the evidence as to require that it should be disturbed by a
reversal of the judgment.
Objection is taken to the giving of the first instruction for
the plaintiff, and to the refusal of the fourth and fifth instruc-
tions asked by the defendant.
It is insisted, that the first instruction lays down an erro-
neous rule as to the measure of damages, it being, the amount
of the money loaned. In order to recover that, it is said that
Field should have repudiated the loan without delay, and
have tendered the securities to Shipherd, and demanded his
money ; whereas, he delayed making such tender for a year or
more, after the facts were known to him.
444 Shipherd v. Field. [Sept. T.
Opinion of the Court.
It seems a sufficient answer to say that there was evidence
tending to show a waiver by Shipherd of any earlier tender
of the securities by his conduct in requesting-Field to wait,
and holding out the encouragement that he (Shipherd) could
collect the money from Montgomery.
We think the instructions refused would, in the form
asked, have tended to mislead the jury, and that, in so far
as they contain correct principles of law applicable to the
case, they were given in other instructions for the defendant,
which embraced the law applicable to the defendant's case, in
a more favorable form even than the defendant was entitled
to have it given.
We see no just ground of complaint for the court's ruling
on instructions.
It is, lastly, urged, that there was error in overruling
defendant's motion in arrest of judgment.
The declaration does contain this allegation, that "the
plaintiff, relying upon the said representations, promises,
assurances and guaranty of said Kelly, so acting as agent as
aforesaid, which were by said Kelly duly communicated to
the plaintiff, advanced and placed in the hands of said defend-
ant, to be loaned by said defendant for said plaintiff as afore-
said, the sum of $3000," etc.; and it is said the allegation in
the declaration is, that Field, the plaintiff, relied upon Kelly,
and not upon Shipherd.
A perusal of the preceding portion of the declaration makes
it manifest that there is a palpable clerical mistake in the use
of the words, " of said Kelly," instead of the words, "to said
Kelly." Said declarations, etc., in the portion above quoted,
refer to the declarations, etc., which had before been men-
tioned, and they are there, in the preceding part of the decla-
ration, each one of them, laid as having been made by Ship-
herd, and not one as made by Kelly.
The words, "of said Kelly," are contradictory and repug-
nant to the precedent matter. The entire words, "of said
Kelly so acting as agent as aforesaid," are surplusage, which
1873.] Walker et al. v. Douglas et al. 445
Syllabus.
should not vitiate. "Where matter is nonsense, by being
contradictory and repugnant to something precedent, then the
precedent matter which is sense shall not be defeated by the
repugnancy which follows, but that which is contradictory
shall be rejected." 1 Salk. 324. Especially so, it may be
said, after verdict.
The motion in arrest of judgment was properly overruled.
Perceiving no error in the record, the judgment must be
affirmed.
Judgment affirmed.
Samuel P. Walker et al.
V.
Robert M. Douglas et al.
1. Contract — rule of construction. Contracts should be so construed
as to give effect to the intention of the parties, and where that intention
is sufficiently apparent, effect should be given to it, even though violence
be thereby done to its words ; for greater regard is to be had to the clear
intent of the parties, than to any particular words they may have used in
the expression of their intent.
2. Contract construed — whether executed or executory. A contract,
under seal, recited that the party of the first part "has this day sold"
to the party of the second part certain property, etc., which was to
be paid for in instalments, extending through a period of eighteen
months. It also contained a clause by which the party of the first part
bound himself, in a penal sum equal to double the amount of the pur-
chase money, to convey the property upon payment of all of the instal-
ments ; and a further clause, that the party of the second part might, at
the expiration of two years, elect whether he would affirm the contract,
and if he should determine to rescind it, the party of the first part should
take back the property, and refund whatever had been paid, with interest
from the time of payment: Held, that it was not the intention or under-
standing of the parties that the contract was in anywise executed, but
that it was purely executory, and that no present estate, either legal or
equitable, was intended to be thereby vested in the party of the second
part.
446 Walker et al. v. Douglas et at. [Sept. T.
Syllabus.
3. Evidence. Parol evidence of the contents of the private books of a
third party, without any basis being laid therefor, is incompetent,
4. Payment — presumption. When a promissory note past due is in the
possession of the maker, the law will infer, from this fact alone, unex-
plained, that it has been paid.
5. Specific performance. To entitle a party to a specific performance,
he must show that he has been in no default, and that he has taken all
proper steps towards the performance on his part.
6. Same — laches of the party asking for. Mere lapse of time, when time
is not expressly made material by the agreement of the parties, is not
necessarily an objection to decreeing specific performance; but where
there is great delay, unexplained, it is such evidence of laches as will pre-
clude the granting of relief.
7. By the terms of a contract to sell and convey land, the last payment
was due in January, 1858, and no offer was made to pay it until in Jan-
uary, 1873, and the only excuses offered for the delay were, the great inti-
macy and friendship between the parties, the civil war, the purchaser
being a citizen of Memphis, Tennessee, the death of the purchaser in
1863, and the minority of his heirs: Held, that no reasonable excuse is
shown why the payments were not made between the time they were due
and the breaking out of the civil war, in 1861, or after the 6th of June, 1862,
when communication was opened with the North, and that to allow com-
plainants, under the circumstances, to have a decree for specific perform-
ance, would be contrary to the well established principles of equity.
8. Minors — disability of, no excuse for not asserting their rights under
executory contract with their ancestor. An infant heir can not avail him-
self of his disability to excuse the non-assertion of his rights under an
executory contract made with his ancestor, when the immediate perform-
ance of his part of the contract is essential to the interest of the other
party.
9. Continuance — diligence. An affidavit for a continuance which
states that the party making it understood from the attorney of the oppo-
site party that he would, on the trial, make certain proof, and, for that
reason, affiant did not take depositions and make such proof himself,
expecting that it would have to be made by the opposite party, does not
show sufficient diligence to entitle the party making it to a continuance.
Appeal from the Superior Court of Cook county; the
Hon. Joseph E. Gary, Judge, presiding.
Messrs. Moore & Caulfield, for the appellants.
Mr. J. S. Murray, for the appellees.
1873.] Walker et al. v. Douglas et al. 447
Opinion of the Court.
Mr. Justice Scholfield delivered the opinion of the
Court :
On the 23d day of July, 1856, Stephen A. Douglas, and
J. Knox Walker, of Memphis, Tennessee, entered into a writ-
ten agreement, under seal, whereby Douglas sold and agreed
to convey to Walker lot number 7, in the west half of the
north-west quarter of section 19, being ten acres of land in
the north-east corner of said quarter section, and bounded by
streets, laid out by the drainage commission on the map for
drainage purposes, in the city of Chicago, upon Walker
paying him $8000, according to the tenor and effect of his
four promissory notes of that date — one for $2000, payable
in ninety days, without interest; one for $2000, payable in
six months, with ten per cent interest; one for $2000, pay-
able in twelve months, with ten per cent interest, and one for
$2000, payable in eighteen months, with ten per cent interest.
It was also stipulated that, at the expiration of two years
from the date of the agreement, Walker might elect whether
he would affirm the contract, and in the event he should
determine to rescind the same, Douglas was to take back the
property and refund the purchase money, with ten per cent
interest, from the date of each payment as the same should
have been made. The notes were executed and delivered at
the tirrie the agreement was made, and the first two were
paid at or near the time they became due. Whether the last
two notes were ever paid, is one of the questions in contro-
versy, and will be noticed in its order.
By a memorandum indorsed on the written agreement, in
the hand-writing of J. Knox Walker, it appears that, on the
23d day of December, 1856, he assigned an undivided half in-
terest in the purchase to his brother, Samuel P. Walker, who
was to make one-half the payments.
A preliminary question relates to the construction of the
contract. It is contended by complainants that the word,
" sold," being used instead of the words, " agreed to sell,"
448 Walker et al. v. Douglas et at. [Sept. T.
Opinion of the Court.
manifests an intention to vest a present equitable title ; that
the word, "sold," is made by our statute a word not only of
conveyance, but of warranty also, and that Douglas could not,
therefore, forfeit the contract, but his only remedy was to
enforce a vendor's lien.
A familiar elementary principle of construction applicable
here is, that it is the duty of the court "to discover and give
effect to the intention of the parties, so that performance of
the contract may be enforced according to the sense in which
they mutually understood it at the time it was made; and
where the intention of the parties to the contract is suffi-
ciently apparent, effect must be given to it in that sense,
though violence be done thereby to its words; for greater
regard is to be had to the clear intent of the parties, than to
any particular words which they may have used in the ex-
pression of their intent." 1 Chitty on Conts. (4 Am. Ed.)
104-5.
In Broadwell v. Broadwell, 1 Gilm. 600, it was said: "In
applications for specific performance of agreements, it is
immaterial what the form of the instrument is — whether it
is a covenant, or a penal bond with a condition to do the
thing. The great and leading inquiry is, what did the parties
expect would be done?" See, also, Fitzpatrick v. Beatty, ib.
468.
We think there is no difficulty here in ascertaining, from
the language used, that the parties did not intend or under-
stand that the contract was in anywise executed, but that it
was purely executory, and that no present estate in the prop-
erty, either legal or equitable, was intended to be vested in
Walker.
Douglas bound himself to Walker, in the penal sum of
|16,000, for the performance of the conditions of the agree-
ment. One of those conditions is in these words: "Now,
it is expressly agreed, that, upon payment of each of said notes
according to their tenor respectively, the said Douglas is to
1873.] Walker et al. v. Douglas et al. 449
Opinion of the Court.
convey to said Walker a good and sufficient title to said premi-
ses, with covenants of warranty in respect to title, defending
the same against the whole world." What language could
have been employed that would have more clearly expressed
the idea that title was to be conveyed upon the perform-
ance of a future condition ? That this form of expression
clearly negatives all presumptions that any title was then
vested, would seem to admit of no argument. Moreover, by
another condition, Walker is allowed two years from the date
of the agreement in which to determine whether he will elect
to affirm or rescind the purchase of the property ; and should
he elect to rescind, the payments made are to be treated as
in the nature of loans of money, which Douglas is bound to
repay, with ten per cent interest. Manifestly, Walker was
not bound to take this property until he exercised his right
of electing whether he would have it or not; and it would be
absurd to say that Douglas was bound, when Walker was not.
In the absence of evidence showing that Walker had waived
this right of election, there was not, therefore, an absolute
agreement even to sell and convey the property in the future,
much less in the present.
The circumstance that the promissory notes given by
Walker to Douglas show the consideration for which they
were given, we regard as possessing no controlling signifi-
cance, since the sole motive which prompted it may have
been to carry notice to subsequent holders, in the event of
assignment, and this is quite as reasonable as any other pre-
sumption.
This, then, brings us to the question, were the last two
promissory notes paid and taken up by J. Knox Walker? It
is averred, in the original and supplemental bills, that they
were, but denied in the several answers.
The burden is upon the complainants to make clear and
satisfactory proof of all the material allegations in their orig-
inal and supplemental bills, and this is one of them. If the
evidence is such as to leave the question in doubt, there can
29— 70th III.
450 "Walker et al. v. Douglas et al. [Sept. T.
Opinion of the Court.
be no relief. Traitor v. Hill, 2 Gilm. 364; Hartwell v. Black,
48 111, 301.
It is not with much apparent earnestness insisted that there
is sufficient evidence of the payment of the fourth and last
note. The only evidence introduced, having a tendency that
way, was, the declarations of Samuel P. Walker, which were
received subject to objection, that he had furnished J. Knox
Walker the money with which to make this payment. This
was mere hearsay, not a part of the res gestae, and was, there-
fore, incompetent, and can not be considered ; nor, if true,
would it overcome the presumption arising from the unex-
plained possession of the note by the representatives of Doug-
las. Although J. Knox Walker may have received the money
to pay the note, it does not follow that he so applied it. If
he paid it, the note should have been taken up, or evidence
should have been produced explaining why this was not done.
The note was found, since the commencement of this suit,
by the representatives of Douglas, in the possession of Riggs
& Co., his bankers at Washington, where it had been pledged
by him, on the 5th day of June, 1860, as a collateral secu-
rity for the payment of a check, which he indorsed for one
George W. Brega, for $250, and where it had since remained.
It was protested for non-payment at maturity, and there is
not a circumstance proved from which a remote inference
even of its payment can be drawn.
The other note is not produced, and neither complainants
nor defendants can give any account of it. There is no evi-
dence of its payment, either circumstantial or direct. A
statement was heard by the court, subject to objection, that
the witness noticed an entry on the books of Riggs & Co. to
the effect that it had been paid, but this was incompetent.
In no case, so far as we are advised, was it ever held that
parol evidence of the contents of the private books of a third
party can be received in evidence, without any basis being
laid therefor. The evidence is not entirely satisfactory that
the note is not in existence. It appears that Douglas had a
1873.] Walker et al. v. Douglas et al. 451
Opinion of the Court.
residence at Washington, which he occupied during the ses-
sions of Congress, and one at Chicago, which he occupied at
other times. Since his death, his widow has remained at
Washington. His executor, Rhodes, seems to have limited
his administration of the estate to the property in Chicago,
and does not appear to have taken charge of any personal
property. He is unable to find the note among the papers in
his possession, and it is not in the possession of Riggs & Co.
Whether it is among the papers left by Douglas at his resi-
dence in Washington, it does not appear. As against the
rights of his widow, who has charge of these papers, we may
assume that the note is not there. As against the other
defendants, there is no competent evidence on the subject. It
is not shown where Douglas was in the habit of keeping such
papers, and it does not, consequently, appear that proper, but
unavailing, search has been made; but if the fact were fully
proved that, after all proper search, the note could not be
found, it would not follow, as a conclusive presumption, that
it had been paid. It may have been assigned to a third party,
or it may have been lost or accidentally destroyed. True, the
inability of the defendants to produce it, raises a presump-
tion against them of its payment, but this is only a presump-
tion, and it may be rebutted.
On the other hand, the burden being on the complainants
to prove the fact of the payment, it was their interest to have
the note, if paid, in their possession ; for, from this alone,
unexplained, the law would infer its payment. In the case
of the first two notes, they were, when paid, taken up by J.
Knox Walker, and wrapped up in the same enclosure with
the written agreement, and a memorandum of the fact and
time of payment, and by whom made, was indorsed on the
written agreement. It was no less important to preserve the
remaining notes, and indorse their payment on the written
agreement, than the first two. The fair presumption is, that,
if they had been paid, this course would have been observed.
Besides this, there is no receipt, memorandum or verbal decla-
452 "Walker et al v. Douglas et al. [Sept. T.
Opinion of the Court.
ration proved, showing an acknowledgment of payment; nor
is there a circumstance, other than the inability of the defend-
ants to produce the note in evidence, from which it might be
suspicioned the note had been paid. It is shown that, at the
time this note matured, and thence until the death of J. Knox
Walker, he was financially involved, living beyond his means,
and giving more attention to politics than his private affairs.
The ability of Samuel P. Walker to make the payment is
undoubted, but it is not pretended that he did so; and if he
furnished money to his brother for that purpose, the misfor-
tune is, there is no proof either of that fact or that any other
money was so applied.
On the whole, we are not clearly satisfied, from the evi-
dence, that this note has been paid, and the case must, there-
fore, be disposed of, assuming that no payment was made of
the last two notes.
It remains to determine whether complainants can have a
decree for the property upon now paying the amount due on
these notes.
The general rule is, that, to entitle a party to specific per-
formance, he must show that he has been in no default in not
having performed his part of the agreement, and that he has
taken all proper steps towards the performance on his part.
Story's Equity Jurisprudence, sec. 771; Scott v. Shepherd, 3
Gilm. 483; Brown v. Cannon, 5 id. 174; Iglehart v. Gibson et al.
56 111. 81 ; Phelps v. The Illinois Central Railroad Company, 64
id. 468.
Mere lapse of time, however, when time is not expressly
made material by the agreement of the parties, is not necessa-
rily an objection to decreeing specific performance ; but where
there is great delay, unexplained, it will itself afford such
evidence of laches as will preclude the granting of relief.
Hough v. Coughlan, 41 111. 133; D' Wolf v. Pratt, 42 id. 198;
Tliompson v. Bruen, 46 id. 125. There was here delay in pay-
ing the money last due, from the 23d day of January, 1858,
and no offer was made to pay it until the filing of the supple-
1873.] Walker et al. v. Douglas etal. 453
Opinion of the Court.
mental bill, on the 21st of January, 1873, the original bill
having been framed upon the single theory that the notes
were paid. The excuses offered for this delay are, the great
intimacy between Douglas and J. Knox Walker, the subse-
quent war, and the death of Walker and minority of a por-
tion of his heirs.
The fact that Douglas and J. Knox Walker were personally
intimate, and that Walker was Douglas' devoted political
adherent, is proved; but does it, therefore, follow that busi-
ness engagements were less binding between them, or that
their mutual legal obligations towards each other were dis-
pensed with ? We think not. We do not think this paid
Walker's notes, or changed their terms. It may explain why
Douglas would have felt great delicacy in resorting to ex-
treme legal measures to enforce the payment of the notes,
but it did not relieve Walker from the legal and moral duty
he was under of paying them, nor free his conduct, in neglect-
ing to pay them, from the imputation of laches.
The fact that Douglas, on the 5th of June, 1860, pledged
the last note as collateral security for the payment of the
Brega check, shows, certainly, that, at that time, he did not
consider the contract as rescinded; but we are unable to infer
from this an intent to give an indefinite future extension of
time for its payment.
The residence of both J. Knox Walker and Samuel P.
Walker was Memphis, Tennessee. Communication between
that point and the North was cut off, by the operations of the
war, from some time in the summer of 1861 until the 6th of
June, 1862, when Memphis was occupied by the government
forces; but from that time forth, there was no difficulty in a
citizen of Memphis having his business affairs in Chicago, or
elsewhere in the North, attended to.
J. Knox Walker entered the confederate army, voluntarily,
as colonel of a regiment, in the summer of 1861, and remained
in it until after the battle of Shiloh,in 1862. when he resigned,
and returned to his home, in Memphis, and there died in
454 Walker et al. v. Douglas et al. [Sept. T.
Opinion of the Court.
August, 1863. His son, Hal. T.Walker, administered on his
estate, and in 1866 found the written agreement between
Douglas and his father, and the two notes which had been
paid, in a bank in Memphis, where they had been deposited,
and soon thereafter the agreement was caused to be placed on
record in Cook county. We are unable to perceive any rea-
sonable excuse why the two notes remaining unpaid were not
paid between the time they were due and the breaking out
of the war, in 1861 ; or why they were not paid after the 6th of
June, 1862, when communication was opened with the North,
and before the filing of the supplemental bill, on the 21st of
January, 1873, when, for the first time, it was intimated that
there was any willingness to pay them. J. Knox Walker's
insolvency was no excuse. Milnor et al. v. Willard, 31 111. 40.
If the heirs of J. Knox Walker were ignorant of their rights
and duties in this matter, who was responsible for it? Surely,
not the widow and heirs of Douglas. But it does not appear
that, if the administrator of J. Knox Walker had made
proper effort to ascertain the condition of his father's estate,
he would have had any trouble in finding this agreement,
immediately after his death. So far as Samuel P. Walker is
concerned, it is evident that he was guilty of the grossest
laches. His contract was only with his brother J. Knox
Walker. There is no evidence that Douglas ever knew of
this contract, and it is certain he held no written evidence by
which he could have enforced payment of the notes, or any
part of them, against Samuel P. Walker. He was solvent,
and able to pay, and must have known of his brother's insol-
vency. If he supposed full payment had been made, why did
he not interest himself to see whether the deed was executed?
He must have known that the property was liable for the pay-
ment of taxes, and that his brother's title might be forfeited
for their non-payment ; yet it does not appear that he made
any effort to procure a deed, or to see that the taxes were
paid, or that he, in any way, gave the property the slightest
1873.] Walker et al. v. Douglas et ah 455
Opinion of the Court.
attention. Whatever ignorance, therefore, he had upon the
subject, was wilful.
The evidence shows that J. Knox Walker caused the taxes
to be paid on the property for the years 1857 and 1858, and
probably 1859 ; but from thenceforth, he furnished no money
for that purpose, and entirely ceased to pay any attention to
the property. He did not put the agreement on record, or
make any improvements on the property, nor was he ever in
the actual possession of it.
In this connection there are two circumstances, which we
deem of special importance, to be taken into consideration.
In 1859 and 1860, this property had depreciated in value,
and it is not shown to have appreciated any until after the
close of the war, in 1865; but, since then, it has greatly
increased in value. From 1857 until the death of J. Knox
Walker, the evidence shows the amount of these notes could
not have been collected from him by judicial proceeding, and
his estate, when finally settled up, paid only about forty cents
on the dollar. As before observed, Samuel P. Walker was
not known to Douglas in this contract. He had neither
signed nor indorsed the notes, nor in anywise become respon-
sible, directly to Douglas, for their payment. The only writ-
ten evidence of his undertaking with J. Knox Walker was
indorsed on the back of the agreement. This was kept by
J. Knox Walker alone, and that so closely and secretly that,
it is claimed by complainants, neither his children, nor his
brother, who was equally interested therein with himself,
knew where it was until some three years after his death,
when it was discovered, by means of a notice from an officer
of the bank with which it had been deposited.
There is no evidence that the fact that Samuel P. Walker
had agreed to pay one-half of these notes was ever known to
Douglas, or that his widow or heirs were informed of it prior
to the commencement of this suit. The property purchased
was liable to fluctuations in value by the lapse of time, and
it is a reasonable inference, from all the circumstances, that
456 "Walker et ah v. Douglas et ah [Sept. T..
Opinion of the Court.
the object of the purchase was speculation. Payment, there-
fore, could not, after the maturity of the last note, have been
enforced against J. Knox Walker, by reason of his insol-
vency ; nor against Samuel P. WTalker, because it was un-
known that he had assumed any liability in respect of the
notes. If, then, the property greatly increased in value, com-
plainants, by obtaining it, would have a profitable speculation ;
but if, on the contrary, it depreciated in value, they would
suffer no loss, because payment could not be enforced. To
allow the complainants, under these circumstances, now, after
the lapse of such time, and in the face of such negligence, to
have a decree for specific performance, would be contrary to
long and well established principles of equity. Fry on Spe-
cific Performance, sees. 713, 714, 715 and 716, and notes;
Story's Equity Jurisprudence, sec. 776 ; 1 Sugden on Ven-
dors (8 Am. Ed.), 403 : Hoyt v. Tuxbury et al. ante, p. 331.
The fact that some of the complainants are infants, is, in
this view of the case, unimportant ; for " an infant heir can
not avail himself of his disability to excuse the non-assertion
•of his right, under an executory contract made with his
ancestor, when the immediate performance of his part of the
contract is essential to the interest of the other party." Fry
on Specific Performance, sec. 620.
The application for a continuance was not based upon an
affidavit showing sufficient diligence to entitle the party to
the continuance. There were two modes by which the con-
tents of the books of Riggs & Co. could have been made
evidence — one by an agreement of the parties to that effect,
and the other by the introduction of proper proof. Complain-
ants resorted to neither, but relied on what they understood
to be the admitted necessities of the defendants to make the
proof for them. At most, the affidavit but appealed to the
equitable discretion of the chancellor to grant a postpone-
ment -; and that he exercised it against complainants, is not
error.
The decree >is affirmed. ^^ (#med_
1873.] Carpenter v. Carpenter. 457
Opinion of the Court.
Pallis Carpenter
v.
James S. Carpenter.
1. Tkust — redemption of land with one's own money. Where the
owner of land borrowed money, and gave an absolute conveyance of
the same as a security for its re-payment, with interest, and afterwards, get-
ting into a difficulty, left the country for parts unknown, and, on his way,
wrote to his father and brother-in-law to redeem the land and it should be
theirs, and the father did redeem the same on the faith of such letter, pay-
ing all the land was then worth, taking a deed to himself, and improved
the same, and finally sold it, investing the proceeds in other land: Held,
that the father was not a trustee for the son, and, as such, liable to account
for the rents and profits, especially after a lapse of eighteen years unex-
plained.
2. Mortgage — election to treat the conveyance as absolute. If a party
makes an absolute conveyance of land as a security for the payment of
money, he may abandon the payment of the debt, and cancel the secret
agreement, and treat his conveyance as absolute, instead of a mortgage,
and he will be bound by such election.
3. Laches— as affecting relief in equity. A court of equity will refuse
its aid to stale demands, where the party has slept upon his rights, or
acquiesced for a great length of- time. Nothing can call forth the aid of
the court but activity, good faith and reasonable diligence. Where these
are wanting, the court is passive, and does nothing. Laches and neglect
are always discountenanced.
Appeal from the Circuit Court of Grundy county; the
Hon. Josiah McRoberts, Judge, presiding.
Messrs. Pillsbury & Lawrence, and Mr. D. L. Mur-
dock, for the appellant.
Mr. E. Sanford, for the appellee.
Mr. Justice Craig delivered the opinion of the Court :
This was a bill in chancery, filed by James S. Carpenter
against Elisha Carpenter, Pallis Carpenter and John L. Meier,
in the circuit court of Grundy county, on the 2d day of No-
vember, 1870.
458 Carpenter v. Carpenter. [Sept. T.
Opinion of the Court.
The bill states that, in May, 1849, complainant entered a
certain tract of land, in Grundy county, containing 240 acres,
and received a patent therefor; that, on the 1st of March,
1852, complainant borrowed, of one Orson Felt, $250, and
agreed to pay interest on the same at the rate of 25 per cent
per annum, and, to secure the payment of the loan, he execu-
ted and delivered a deed of the land to Felt; that, after
obtaining the loan, complainant removed to California, and
left Elisha Carpenter, his father, in charge of the property;
that, in January, 1853, while complainant was in California,
Elisha Carpenter, and Gideon Lumbeck, who was a brother-
in-law of complainant, paid the amount due Felt, $312.50,
and Elisha Carpenter, to cheat and defraud complainant,
induced Felt to make and deliver Carpenter a warranty deed
for the land; that Carpenter received rents and profits of the
land to the amount of $5000, and, to cheat and defraud com-
plainant, conveyed 160 acres of the land to John L. Meier, for
$5000; that Meier knew Carpenter had no title to the land ;
that Elisha Carpenter, to further cheat the complainant, took
the money for which he sold the land, and purchased 160
acres of land in McLean county, which is now occupied by
Elisha and Pallis Carpenter.
Complainant charges that the McLean county land belongs
to him, and prays for an account, etc.
The answer of John L. Meier admits that he bought the
160-acre tract in Grundy county, but that he bought and paid
for the same in good faith, believing that Elisha Carpenter
was the owner thereof.
The defendants, Elisha and Pallis Carpenter, answer the
bill, and admit that $312.50 was paid by Elisha Carpenter to
Felt, and that he obtained a deed, but not for the purpose of
cheating complainant; admit the use of the land until the
sale to Meier, but that the rents did not pay for money and
labor expended in improvements; allege sale to Meier in good
faith; admit they reside on the land in McLean county, as
their own ; deny that it was bought with complainant's money ;
1873.] Carpentee v. Carpentee. 459
Opinion of the Court.
deny that complainant has any right to the land, or rents and
profits, and allege that, soon after complainant conveyed to
Felt, he left for parts unknown, in consequence of a difficulty
with a girl in the neighborhood, and went to California, and
on the road, he wrote to Elisha Carpenter to go to Felt and
pay off the debt, and, he should have the land as his own;
that, upon receiving the letter, he went to Felt, paid the debt
($312.50), purchased the land and took a deed therefor; that,
at this time, the land was wild and unimproved prairie, worth
not to exceed $1.25 per acre; that, in 1857, he conveyed 80
acres of the land to his daughter, Artimesia Lumbeck; that
the defendant acted in good faith on the proposition in the
letter, and believed that, if he bought the premises, the com-
plainant would never disaffirm the offer contained in the let-
ter; that, after defendant acted in good faith in advancing
his money to buy the land, and in improving and making the
same valuable, relying on the offer of complainant in his let-
ter, it is unjust and inequitable, after so long a time, for com-
plainant to claim an interest therein, and, in equity, he is
estopped; that, if complainant ever had any right to relief,
he has forfeited the same by his own laches; that, even if
the deed from complainant to Felt was for a loan, in the
nature of a mortgage, the deed from Felt to defendant was a
warranty deed, and was the closing up of the transaction
between complainant and Felt, and defendant, Carpenter, re-
ceived the deed in good faith, and that he and his grantee
have had possession and paid all taxes for seven successive
years, and complainant is barred by the Statute of Limita-
tions,
The evidence in this case is somewhat voluminous, and,
upon some questions, contradictory. The facts, however,
upon which the decision of the case must rest, are, in the
main, clearly proven, and not very contradictory.
In 1849, the complainant entered 240 acres of land in
Grundy county. On the 1st of March, 1852, he borrowed,
of one Orson Felt, $250, for one year, and agreed to pay 25
460 Carpenter v. Carpenter. [Sept. T.
Opinion of the Court.
per cent interest thereon, and, to secure the payment of the
money, he conveyed to Felt the 240 acres of land by general
warranty deed of conveyance. In August, 1852, the com-
plainant, having been unsuccessful in a love matter with a
girl in the neighborhood, started for California, and, when he
reached Chicago, on the road, he wrote a letter to Elisha Car-
penter, and his brother-in-law, Gideon Lumbeck, the contents
of which is very material, and disputed by the parties.
Elisha Carpenter testifies that complainant wrote to them he
had started for California, and for them to pay the demand
that was against the land, and take it, and it is yours; that
he would never return from California until he was able to
set his heel upon the neck of the Gnil tribe (these were the
relatives of the girl with whom he had not been successful).
Gideon Lumbeck, who, by his testimony, does not Seem to be
in sympathy with the defense, on cross-examination, says,
complainant wrote them, from Chicago, " Eedeem the land,
and it shall be yours." These are the only witnesses, that
saw the letter, who swear to its contents. It is true, com-
plainant seeks to place a different construction on the mean-
ing of the letter, but the weight of evidence clearly is, that
complainant directed or requested the defendant, Carpenter,
and Lumbeck, to discharge the land of the debt, and they
should have it.
After receiving this letter, Elisha Carpenter entered upon the
task to raise money to pay Felt. He sold 40 acres of land,
with a house upon it, for $190, oxen for $50, corn for $17.50 ;
Lumbeck and he cut and sold hay, and raised a part of the
money, and, in the spring of 1853, Carpenter went to Felt,
gave him this letter he had received, and paid the debt, then
amounting to $312.50, and Felt conveyed the land to him.
He subsequently conveyed 80 acres of the land to Lumbeck,
or his wife. The other 160 acres he improved, and resided
upon it until 1865, when he sold it to Meier, and bought a
farm of 160 acres in McLean county, where he resided when
the suit was commenced. As to the value of the land in the
1873.] Carpenter v. Carpenter. 461
Opinion of the Court.
spring of 1853, the evidence does not agree. The defendant,
Carpenter, and Meier, testify the land was not worth more
than $1.25 per acre; that there was plenty of land, subject to
entry, all around it. On the other hand, Lumbeck swears it
was worth from $5 to $8 per acre. It is, however, very evident
the land, at that time, was not valuable. Complainant had
made no improvements upon it. It was wild, unimproved
prairie, surrounded with government land subject to entry at
$1.25 per acre.
Complainant left Grundy county in August, 1852; left no
person in charge of his land, and no arrangement by which
the debt upon it was to be discharged, and did not return
until 1870. From 1856, he was not heard from by his rela-
tives in Illinois. He paid no taxes on the land after his
departure, and never returned the $312.50 which Elisha Car-
penter paid Felt in the spring of 1853.
It is claimed by the counsel for complainant, that this land
was held, by Elisha Carpenter, in trust for complainant, and
that he had the right to recover the land, and call upon him,
as trustee, for an account.
In order to determine if the relation of trustee and cestui
que trust existed between these parties, it becomes necessary
to recur to some of the leading principles of law governing
that relation.
There can be no doubt but the deed held by Felt, although
absolute on its face, was, in fact, a mortgage, and it is clear,
from the evidence, that Elisha Carpenter, in taking a deed from
Felt, and his subsequent dealing with the property, has acted
in perfect good faith; no fraud, in fact, is shown, in any re-
spect, against him, and, if his acts are to be considered fraud-
ulent, it is fraud in law, and not in fact. It is argued by
appellee, that he supposed the deed from Felt was taken in
his name, and not in that of his father. He had no right,
from all the facts, to come to that conclusion. He knew that
he had made Felt an absolute deed, and that Felt could con-
vey the land. He started to leave the State without making
46'2 Carpenter v. Carpenter. [Sept. T.
ODinion of the Court.
any arrangements to pay the debt be bad placed on the land.
He, no doubt, bad given up any hope of paying the debt.
On his road to California, he wrote to Elisha Carpenter and
Lumbeck, to redeem the land and it should be theirs. How
did he suppose they would get the title ? The answer to this
is obvious. He knew Felt could convey, and knew full well
if they presented Felt the letter, and the money due him, he
would be authorized to deed to them. Knowing all these
facts, he could not, with any consistency, expect or believe
that they would advance their own money, and pay all, or
nearly all, the land was worth, and take the title in his name.
This case, in many respects, is analogous to that of Bots-
ford v. Burr, 2 Johns. Ch. Rep. 405. Botsford applied to
Burr for a loan of $900, to enable him to pay a mortgage on
the Bogardus farm. Burr refused to loan the money, but
agreed to buy in the farm, when sold on mortgage, and to
reconvey the same to Botsford, if he paid him the money
advanced, within a month. Burr, accordingly, bought in the
farm, and subsequently sold the same at an advance. A bill
was filed to make him account and pay over the balance, after
deducting his advances. The court held, that, as Burr pur-
chased at public auction, took deed in his own name, and
paid his own money, and, as the sale was made with the
knowledge and assent of Botsford, there was no pretense for
setting up a resulting trust. It was further held, that the
conveyance by Bogardus, the mortgagee, and the payment of
purchase money, completed the contract, and that no parol
proof of parol declarations inconsistent with the deed, could
be admitted.
In this case, the defendant did not even agree to loan the
complainant money, but at the request of complainant, he
went and advanced his own money, and paid for the land,
and took a deed in his own name.
While it is true, Felt held as mortgagee, the complainant
had the right to abandon the payment of the debt, and can-
cel the secret agreement between him and Felt, and treat the
1873.] Carpenter v. Carpenter. 463
Opinion of the Court.
conveyance to Felt as an absolute deed, instead of a mortgage,
and request him to convey, and if, in fact, he did elect and
agree to treat the deed to Felt as absolute, he will be bound
by such agreement. Ilaxfield et al. v. Patchen, 29 111. 42.
But, independent of this question, the defendants, by their
answer, rely on the defense of laches.
The complainant, during a period of eighteen years, paid
no attention to this land; made no arrangement with any one
to pay taxes for him. Under the laws of the State, it could
have been sold for taxes, deed obtained, taxes paid under the
deed, which, with possession, at the expiration of nine years
after his departure, would have ripened into an absolute bar
to a recovery, as against him.
In 1853 or 1854, Elisha Carpenter took possession and com-
menced to improve the land. The absolute deed of complain-
ant to Felt, and from Felt to defendant, were on the records
of Grundy county from the spring of 1853. This was a pub-
lic record, showing the defendant to be the owner. There
was the further fact, of defendant being in possession, making
valuable improvements, paying taxes, and in every way treat-
ing the land as his own. As early as 1856, he sells 26 acres,
and, in 1865, the balance of the quarter. We are aware of
no principle of equity that would permit complainant to
abandon this property for eighteen years, when the records of
the county, and the notorious acts of the defendant, would
have shown him at any time that the defendant was claiming
to be the owner, and more especially as he knew, when he
left, that Felt would sell the land for the debt, if he did not
pay it, until it has become valuable by the labor of the de-
fendant, and then recover it from him, when he was induced
to advance his own money and save the land, on the faith of
complainant's promise that it should be his.
Perry on Trusts, sec. 870, says : "Acquiescence in a trans-
action may bar a party of his relief, in a very short period.
Thus, if one has knowledge of an act, or if it is done with
his full approbation, he can not afterwards have relief. He
464 Carpenter v. Carpenter. [Sept. T.
Opinion of the Court.
is estopped by his acquiescence, and can not undo that which
has been done. So, if a party stands by and sees another
dealing with property in a manner inconsistent with his
rights, and makes no objection, he can not afterwards have
relief. His silence permits or encourages others to part with
their money or property, and he can not complain that his
interests are affected. His silence is acquiescence, and it
estops him."
Sir William Grant, in the case of Bedford et al. v. Wade,
17 Ves. 87, says : " Courts of equity, by their own rules, in-
dependently of any statutes of limitations, give great effect to
length of time, and they refer frequently to statutes of limit-
ations for no other purpose than as furnishing a convenient
measure for the length of time that ought to operate as a bar,
in equity, of any particular demand."
In Smith v. Clay, 3 Brown's Ch. Kep. 640, it is said: "A
court of equity, which is never actiye in relief against con-
science or public convenience, has always refused its aid to
stale demands, where the party has slept upon his rights, or
acquiesced for a great length of time. Nothing can call forth
this court into activity, but conscience, good faith and reason-
able diligence. Where these are wantyig, the court is passive,
and does nothing. Laches and neglect are always discoun-
tenanced, and, therefore, from the beginning of this jurisdic-
tion, there was always a limitation of suit in this court."
It is said, in Vol. 2 of Story's Equity Jurisprudence, sec-
tion 1520, in discussing this question : "A defense peculiar
to courts of equity, is that founded upon the mere lapse of
time, and the staleness of the claim in cases where no statute
of limitations directly governs the case. In such cases,
courts of equity act sometimes by analogy to the law} and some-
times act upon their own inherent doctrine of discouraging,
for the peace of society, antiquated demands, by refusing to
interfere where there has been gross laches in prosecuting
rights, or long and unreasonable acquiescence in the assertion
of adverse rights."
1873.] Davenport v. Karnes et al. 465
Syllabus.
The same doctrine is announced and fully sustained by the
Supreme Court of the United States in the following cases :
Pratt v. Vallier, 9 Peters, 416 ; Prevertv. Graty, 6 Wheat. 481 ;
Boivman et al. v. Nathan, 1 Howard, 194.
This court has frequently announced the same principle in
regard to laches, and the enforcement of stale claims in a
court of equity. Beach v. Shaw, 57 111. 25; R 'ogers v. Sim-
mons et al. 55 111. 82.
Testing the case under consideration by the authorities
cited supra, we can arrive at no other conclusion than that the
complainant was not entitled to recover. Seven years' posses-
sion, and payment of taxes under a deed acquired in good
faith, is a bar to a recovery at law.
That the defendant, Elisha Carpenter, paid his own money
and took the deed in good faith, is shown by the record.
That he was in possession, and paid all taxes, claiming the
land as his own, for a sufficient length of time to bar a recov-
ery at law, is beyond dispute.
We are asked, in this case, not only to disregard the limit-
ation at law, which a court of equity should, with reason and
propriety, follow, but to hold that complainant may sleep upon
his rights for eighteen years, and then recover, and thus reap
the benefit of the labor of another, as a reward for his laches.
This we can not do.
The decree will be reversed and the bill dismissed.
Decree reversed.
Elizabeth L. Davenport
v.
John Karnes et al.
1. Marriage contract — governed by the law of the State where to be
performed. Where a resident of this State made a parol ante-nuptial
agreement, in 1848, in the State of Pennsylvania, where he was married,
30— 70th III.
466 Davenport v. Karnes et al. [Sept. T.
Opinion of the Court.
and immediately removed to this State, where the contract was to be per-
formed: Held, that the law of this State governed, as to its effect and
validity, and not that of the State where it was made.
2. Same — land purchased in wife's name, in pursuance of parol agree-
ment— husband's curtesy liable to sale. Where a husband purchased land
with his wife's means, taking a simple conveyance to her, in 1854, it was
held, that it became the property of the wife, subject to the rights the mar-
riage conferred upon the husband, as to his creditors, notwithstanding a
parol ante-nuptial agreement to the contrary, and that his life estate was
subject to sale on execution, unaffected by the act of 1861.
3. Judgment lien — not affected by acts of debtor. Where two judg-
ments were recovered against a party at the same term of court, which
became liens upon his life estate in land, and a levy and sale of the
same was made under an execution issued upon one of the judgments,
after which the debtor conveyed his interest to a brother, who redeemed
from the sale within twelve months : Held, that, by the redemption, the
sale became null and void, and the premises were liable to the lien of the
other judgment, which could not be avoided by the act of the judgment
debtor conveying his equity of redemption.
Appeal from the Circuit Court of Henry county; the
Hon. Geo. W. Pleasants, Judge, presiding.
This was a bill in chancery, brought by Elizabeth L. Daven-
port against John Karnes and John B. Hagin, to set aside a
sale of a tract of land made under execution against Thomas
F. Davenport, the complainant's husband. The opinion of
the court states the grounds upon which the relief was sought.
Mr. O. E. Page, for the appellant.
Mr. George W. Shaw, for the appellees.
Mr. Chief Justice Breese delivered the opinion of the
Court:
This is an appeal from a decree of the circuit court of
Henry county, sitting as a court of chancery. The scope and
object of the bill was, to enjoin the sale of a certain tract of
land claimed as the separate property of the appellant, on
which a levy had been made under a ji.fa. issued on a judg-
ment in favor of the appellee.
1873.] Davenport v. Karnes et al. 467
Opinion of the Court.
Appellant claims that, by virtue of a parol ante-nuptial
agreement, made in 1845, in the State of Pennsylvania, her
property was to be and remain under her exclusive control, re-
lieved from any claim of her husband, growing out of the
marriage. She alleges, and it is not denied, that the land in
question was purchased in 1854, by her husband, with her
money, and the deed of conveyance taken in her name.
The first question presented is, under these facts, has the
husband of appellant such an interest in the land as is liable
to be taken in execution on a judgment against the husband,
and sold ?
At the time of the marriage, the husband was a resident
of this State, and has been such resident ever since, and to
this, his domicil, the parties repaired after the marriage, and
it is here the contract was to be performed. It is argued by
appellant that, by the laws of Pennsylvania, a parol ante-
nuptial contract is a legal and binding contract, and will be
enforced in a court of equity.
Whatever the law may be in Pennsylvania, on this subject,
the law of the place where the contract is to be performed,
must govern. What is the law in this State? Such an
agreement, if executed, would, we have no doubt, be. good as
against the husband or his subsequent creditors. If the hus^-
band, when this land was purchased, had, in the conveyance,
settled it to her separate use, the marital rights of the hus*
band would, no doubt, have been excluded. The deed was
taken in the name of the wife as the grantee, in the usual
form, and the land became her property, but subject to all the
rights the marriage conferred upon the husband. The act of
1861, called "The Married Woman's Law/7 could not and did
not take away any of these rights, as was held in Rose v.
Sanderson, 38 111. 247, and Dubois v. Jackson, 49 ib. 49.
This being so, the husband possessed a life estate in this
land, subject to execution. ]STo interference with the fee is
attempted, or any right to do so claimed by appellee. He
only insists upon his right to subject the interest of the hus-
468 Davenport v. Karnes et al. [Sept. T.
Opinion of the Court.
band in the land to sale under the execution issued on his
judgment. This he has a clear right to do. Hose v. Sander-
son, supra.
It appears appellee had two judgments against the husband
of appellant, rendered at the same term of the court. Exe-
cutions were issued on these judgments on the same day, and
delivered to the sheriff to be executed.
The premises in question were levied on under the execu-
tion issued on the smaller judgment, and sold by the sheriff to
appellee, on the 24th day of June, 1871, he being the high-
est bidder, for the sum of three hundred dollars. Before the
twelve months expired, on the 30th of May, 1872, the defend-
ant in the execution made and delivered to his brother a quit-
claim deed for the premises, conveying all right which he
might have to the same, either as tenant by the curtesy or
otherwise, as the husband of appellant. Being such grantee,
his brother, on the 19th of June, 1872, redeemed the prem-
ises from this sale, and obtained from the sheriff a certificate
of redemption, which was recorded, and, on the same day, the
redemption money was paid to the attorney of the plaintiff in
the execution, the appellee here, for which he receipted to the
sheriff.
Under the statute, the sale, and the certificate issued thereon,
of these premises, became null and void by the redemption.
Scates' Comp. 607.
This being the situation, appellee caused an alias execution
to be issued on the larger judgment, on the 20th day of June,
1872, and to be levied on the same premises, and they were
levied on and sold by the sheriff to appellee for the sum of
twenty-five hundred dollars. This is the sale appellant claims,
by her bill, as illegal, and prays that it be set aside as a cloud
upon her title.
Appellant's counsel takes the position, that the premises,
having been once sold, and redeemed within the year, can not
be again sold on a judgment which was a lien on the prem-
ises at the time of the sale under the execution issued on the
1873.] Davenport v. Karnes et aL 469
Opinion of the Court.
smaller judgment. To state the position more full)7, appel-
lant insists, where two judgments are rendered at the same
term of the same court, in favor of the same plaintiff, and
against the same defendant, neither has priority of lien over
the other, and, where lands are sold on a fi. fa. issued upon
one of those judgments while an execution is in the hands
of the sheriff, issued upon the other, the plaintiff has exhausted
his remedy as against the lands, and they can not be again
sold under either of said judgments, unless the same shall be
redeemed by the judgment debtor, and again brought within
the reach of a subsequent execution.
Again, he insists, where a judgment creditor has exhausted
his remedy against the lands of his debtor, by a sale of the
same on execution, the judgment debtor can sell his equity of
redemption, and if the lands shall be redeemed by the grantee
within one ,year from the sale on execution, the grantee will
get a good title to the land, unaffected by any of the judg-
ments.
In support of these propositions, Merry v. Bostwiclc, 13 111.
398, is cited. In that case, Merry, the plaintiff in error,
claimed to hold the land under a purchase made at a sheriff's
sale, on an execution issued upon a judgment junior to that
under which the redemption was made. The reason given
by the court is, that the judgment debtor had no such inter-
est in the premises, at the time the sale was made under the
junior judgment, as could be taken and sold on execution.
The premises had been previously sold on an older judgment.
In that case, the only interest the judgment debtor then
had, was the right to redeem, which right would be cut off
by allowing it to be sold on a second judgment.
In the case before us, there is no such element as a junior
judgment, nor any attempt to sell the right of redemption;
that had been sold and conveyed by the defendant in the exe-
cution, to his brother. The defendant had one year within
which to redeem, but within that time he conveyed as stated.
This right of redemption then passed to his grantee, and he
470 Gerrish v. Maher. [Sept. T.
Syllabus.
thereby acquired only the right to redeem. Dunn v. Bodgers,
43 111.' 260.
As before said, under the statute, upon this redemption, the
sale became null and void. Scates? Comp. 607. This being
so, the premises were as though no levy and sale had been
made, and became liable to levy and sale on the execu-
tion issued on the larger judgment, as that judgment was a
lien upon the premises at the time of the conveyance by the
judgment debtor to his brother, of which he could not be
deprived by any act of theirs.
These principles are clearly recognized in McLagan v.
Brown et al. 11 111. 519.
As we understand the case, we do not perceive in what
manner appellee could be deprived of the lien of the larger
judgment, or what there was to prevent him from enforcing
the lien acquired thereby. He had the judgment. It was a
valid lien on the defendant's estate in this land, and why it
should not be sold to satisfy the judgment, we can not under-
stand. It is not in the power of a judgment debtor, by
assigning his right to redeem, to deprive creditors of their
rights.
We concur with the circuit court in dismissing the bill, and
affirm the decree.
Decree affirmed.'
George W. Gerrish
v.
Hugh Maher.
1. Agent — extent of Ms authority. Where an agent is employed merely
to carry out and perform a contract already made by his principal, he is
not authorized to change the contract, or to make a new one.
2. Where a party sold land to another, to be paid for part in cash and
part on time, the cash payment to be made, and the deferred payments
secured by trust deed, when the vendor should deliver a warranty deed,
1873.] Gerrish v. Maher. 471
Syllabus.
and an abstract showing good title to the purchaser, and the agent of the
vendor, by his direction, tendered such deed and abstract to the purchaser,
and demanded performance of the contract, and the latter failed to per-
form, and afterwards claimed that the agent agreed to give him further
time: Held, that the agent had no authority to give any extension of
time, his authority being simply to perform the contract already made,
and not to make a new one.
3. Performance op contract — when acts to be concurrently performed.
Where a contract for the sale of land provides for the payment of a por-
tion of the purchase money upon the delivery of a deed for the premises,
and an abstract showing good title thereto, and that the balance of the
purchase money shall be secured by notes and a mortgage or deed of
trust, the delivery of the deed, on the one side, and the payment of the
first installment and the delivery of the notes and deed of trust, on the
other, are concurrent acts, to be mutually performed b}rthe parties atone
and the same time, and neither can be required to proceed before the
other performs, or offers to perform, on his part.
4. And as a general rule, subject to some exceptions, either party
desiring to place the other in default, must perform, or offer to perform,
on his part; but an offer to perform by one party is not necessary when,
at the time for performance, it is not in the power of the other to perform,
or he unconditionally refuses to perform.
5. Same — effect of failure in, on the rights of the party in default. When
a contract for the sale of land provides for the payment of a part of the pur-
chase money, and the execution and delivery of notes secured by a deed of
trust for the balance, upon the delivery of a warranty deed for the land,
and an abstract showing good title thereto, and no particular time is fixed
by the contract for the performance of these concurrent acts, and the parties
afterwards agree upon a particular time and place at which to meet and
perform, and one of them goes to the appointed place at the appointed
time, prepared to perform on his part, and the other one fails to go, the
one so failing waives all right to afterwards insist upon the performance of
the contract, or the recovery of damages for the breach of it.
Appeal from the Superior Court of Cook county ; the Hon.
William A. Porter, Judge, presiding.
Messrs. Miller & Frost, for the appellant.
Messrs. Monroe, Bisbee & Gibbs, for the appellee.
472 Gerkish v. Mahee. [Sept. T.
Opinion of the Court.
Mr. Justice "Walker delivered the opinion of the Court:
It is claimed that appellant agreed to sell to appellee
72 acres of land, near the city of Chicago, for the sum of
$36,250, of which $500 was paid in hand, and one-fourth
of the balance to be paid on the delivery of a warranty deed,
and an abstract showing good title, and the balance in three
equal annual installments, with interest thereon at the rate
of six per cent per annum. The suit was to recover damages
for an alleged breach of the contract, by a refusal of appel-
lant to convey the land according to the agreement. An
optional contract was executed by appellant to appellee in
July, 1868, and it is claimed, in the following August, a
further agreement was executed, by a firm of land agents, on
behalf of appellant. On the trial in the court below, appel-
lee recovered a judgment for $16,700, as damages for the
alleged breach. From that judgment defendant appeals to
this court, and urges, as grounds of reversal, that the evi-
dence does not sustain the verdict, and the misdirection of
the jury by the court, and the refusal to give proper instruc-
tions.
It seems to be conceded that on the 13th day of September,
1868, Franklin Tuxbury, on behalf of George W. Tuxbury,
with whom appellant had an optional contract for the pur-
chase of this property, and from whom he was to receive
title, arrived in Chicago, with the title deeds and papers, for
the purpose of consummating the trade, delivering the deeds,
receiving the first installment of the purchase money, and
the security for the unpaid portion, according to the terms
of the proposal signed by appellant. One Hancock acted
for appellant in the matter. There seems, however, to be
no material difference in the terms of the two written con-
tracts, except one was optional and the other without condi-
tion.
On the 14th of September, the parties met at the office of
Thompson and Fowler, the land agents. The deeds and
1873.] Gekrish v. Maher. 473
Opinion of the Court.
papers were produced, and Tuxbury testifies they were exam-
ined by appellee, and no objection was made by him. Appel-
lee testified that he desired the deeds to be entered on the
abstract. It appears that Chase & Bros., who were preparing
abstracts, received the deeds for the purpose of noting these
conveyances on the abstracts, on the loth, and returned them
on the 18th, and Tuxbury testifies that he, on that day, when
he received back the deeds, learned that appellee had received
the abstract; but he testifies that he obtained the abstract on
the 19th, which was on Saturday. He says he took it imme-
diately to his attorneys to have it examined, and the papers
made out if the abstract was correct and the title perfect.
That it was two or three days before the attorneys reported
on the abstract. He thinks it was on the 24th of the month.
They had noted defects on the abstract. Tuxbury swears
that he and Hancock urged appellee to close the matter at
various times, but it was not done.
On the 24th of the month a deed was sent to Springfield,
to obtain a certificate from the Secretary of State, authen-
ticating the fact that a commissioner in New York, before
whom the acknowledgment had been taken, was, at the time,
duly appointed, and properly acting as such. The deed was
returned, on the morning of the 28th. with the certificate,
and the objection thus removed. On that day, in the fore-
noon, Tuxbury notified appellee and Hancock that the matter
must be closed by two o'clock in the afternoon, and that it
was probable that he would get a telegram at any time from
his brother, directing him to break off the negotiations, and
return, and two o'clock was fixed as the time for the meeting
to close it up, and, as Tuxbury and Hancock swear, appellee's
office was agreed upon as the place, but he says it was to be at
the office of his attorneys. At the appointed time, Tuxbury
and Hancock went to appellee's office, and remained there for
some time afterwards, but appellee did not meet them, and
Tuxbury declared the contract at an end. At two o'clock,
he had received a telegram from his brother saying, that if
474 Gerrish v. Maher. [Sept. T.
Opinion of the Court.
the money was not paid by two o'clock of that day not to
deliver the papers.
By the terms of this agreement, the delivery of the deed
on the one side, and the payment of the first installment, and
the delivery of the notes and trust deed, by the other, were
concurrent acts, to be mutually performed by the parties, at
one and the same time. Neither could be required, under
the agreement, to proceed before the other performed, or
offered to perform, on his part. The contract was so framed,
and nothing else can be required under it; and as a general
rule, subject to some exceptions, either party desiring to
place the other in default, must perform, or offer to perform,
in all such cases. If one party unconditionally refuses, or it
appears that it is out of his power, when the time arrives, then
a performance, or a tender of performance, by the other party,
is unnecessary. These, and such like cases, form an excep-
tion to, but do not abrogate the rule. Whether the parties
are able to perform, are ready and willing and offer to perform,
are, therefore, usually importantquestionsto be determined in
this character of actions.
When the evidence is considered, we think there can be no
reasonable doubt that appellant, through his agents, Tuxbury
and Hancock, had the power, and wTas ready and willing,
and offered, to perform his part of the contract, on the fore-
noon of the 28th of September, the day that negotiations were
broken off and ceased. The abstract then showed good title,
and Tuxbury had a deed in his possession, ready to deliver
from appellant to appellee, and a deed from his brother to
appellee, ready to be delivered and recorded. Of these facts
there can be no doubt, and there seems to be none that he
had been willing to deliver them for two weeks previous to
that time; but, for some reason, not clearly explained, ten
days seem to have been consumed in noting some five or six
deeds on the abstract, and in obtaining the opinion of coun-
sel as to the sufficiency of the title. At the end of that time,
a technical objection was raised that a certificate of the
1873.] Gerrish v. Maher. 475
Opinion of the Court.
official character of a commissioner, who had certified the
acknowledgment of one of the deeds, was interposed. The
deed was then sent to Springfield, the certificate procured, and
the deed returned by the morning of the 28th. The parties
must have felt assured, almost to a certainty, that this certi-
ficate would be had when the deed should be returned; and
this want of proof of the official character of the officer need
not have prevented appellee from preparing himself for the
performance of his part of the agreement.
It appears that appellant, by his agent Tuxbury, at ten
o'clock in the forenoon of that day, offered to deliver the
deeds, and receive the money and securities; but it is insisted
that, owing to a difference between appellee and Hancock, as
to the rate of interest the deferred payments should bear, the
notes and trust deed had to be altered, which prevented the
consummation of the agreement at that time. It appears
that, at that meeting, Tuxbury notified appellee that he had
received a letter from his brother, saying that appellant was
at his mercy, and informing him that he was liable, at any
time, to get a telegram directing him to close all further
negotiations, and return, and at the same time urged that the
matter be closed at once; but we infer that time was extended
until two o'clock, subject to orders that Tuxbury might, in
the meantime, receive from his brother to close and break
off further negotiations.
As we understand the matter, George W. Tuxbury, who
owned the land, had sold it to appellant, with an option to
refuse to take it in thirty days; and, although he had elected
to take it, and make the payments, the time had then expired,
as had appellee's, and the owner had the right to insist upon
appellant making immediate payment, or, failing to do so,
to end the contract; and this, too, without the slightest refer-
ence to the trade between appellant and appellee; and Frank-
lin Tuxbury was acting as the agent of his brother to deliver
the deed to Hancock for appellant, and as the agent of the lat-
ter to deliver his deed to appellee, when the latter should make
476 Gereish v. Maher. [Sept. T.
Opinion of the Court.
payment and deliver the securities to Tuxbury. He, then,
was bound to act within the scope of his authority,- and noti-
fied the other parties that his power was liable to come to an
end within an hour; and when the hour of two in the after-
noon was fixed, all parties must have known that, before that
hour arrived, Tuxbury's power might be at an end. It can
not be claimed that Tuxbury had power, in the face of these
facts, to unconditionally extend the time even until the hour
of two. There is no evidence that he had any irrevocable
power in the matter; and, in the absence of proof to the con-
trary, he will be presumed to have had power only to carry
out the contract according to its terms, and not to make new
or binding contracts; but his extension of time does not seem
to have been repudiated, but rather to have been approved
by his principal, as he was instructed, if the money was not
paid by two o'clock of the 28th, to withdraw the papers, and
end the matter. There was not, nor could there have been,
so far as this evidence discloses, a binding unconditional
extension of the time.
This, appellee manifestly knew, as he was fully informed
that Tuxbury's power was liable to be withdrawn before the
hour arrived. He also knew that appellant was in the power
of the holder of the legal title, and could only perform when
appellee performed, and that Hancock could not be invested
with power to extend the time beyond the time appellant's
vendor might see proper to give. No one could reasonably
suppose that appellant would authorize an agent to do so
under the circumstances, all of which seem to have been fully
known to appellee. There is, therefore, no reason for the
claim of appellee that the extension of the time until two
o'clock was unconditional. It was error for the court to
instruct the jury that they might so find, as there was no
evidence to warrant such an inference. Instructions must
be supported by evidence that tends to prove the propositions
they embody. Such an instruction was calculated to mislead,
and should not have been given.
1873.] Gerrish v. Maher. 477
Opinion of the Court.
The evidence fails to show that appellee, at any time within
the two weeks efforts were being made to close up the matter,
tendered the money, notes and trust deed, or showed that he
was actually able or willing to perform. It may be inferred
that he was expecting one Smith to make the payments, and
to give his notes for the purchase money, although appellee
swears he had the money for the first payment in bank. He
at no time, so far as we can see, even demanded that the deeds
should be delivered, and the matter closed. On the contrary,
if the evidence is to be credited, he was repeatedly urged to
close up the matter.
But it is urged, that the case of Smith v. Lamb, 26 111. 396,
controls this case. That case is wholly unlike this. There,
the vendor had no title or pretense of any power to convey
title, according to the terms of his agreement; but here,
appellant, although not the absolute owner of the legal title,
had a deed to him from the owner, ready to be delivered and
tendered to appellee, to take effect on his performing his part
of the contract. In that case, there was no pretense of power
to pass any title to the vendee. In this, the cases are the
poles apart.
The only remaining question on this branch of the case is,
whether the change in the rate of interest, at the instance of
Hancock, which involved the necessity of changing the
papers, formed such an excuse as dispensed with the neces-
sity of a tender of the money by appellee. We think it did
not. He knew that the extension of time for the closing of
the matter was dependent upon the continuance of the power
of Tuxbury to act till the time named. Had he been ready
with the money, and tendered it, and had the trust deed ready
by two o'clock, the contract would have been consummated.
The telegram directed the contract to be ended, unless the
money was paid by two o'clock, and the urgency in the whole
matter seemed to be for the payment of the money; but be
this as it may, it would seem that there was ample time for
the copying of a deed of trust already drawn, with the change
478 Gerrish v. Maher. [Sept. T.
Opinion of the Court.
of a single word where it occurred in the deed; or, if appel-
lee had been eager to perform the contract, the deed could
have been changed by erasing one word, and interlining the
other, so far as necessary, and noting the change, as is fre-
quently done, and to which there is no legal objection. Had
appellee been anxious to carry out the contract, this might,
together with drawing new notes, have been done within less
than half an hour, and he could have made an effectual ten-
der if he was possessed of the requisite amount of money for
the purpose.
The evidence tends strongly to prove that the meeting at
two o'clock was fixed for appellee's office, and that Tuxbury
and Hancock went there in pursuance to the agreement, and
they so swear; but appellee swears it was to be at Perkins'
office, and that he went there. If the meeting was to have
been at appellee's office, then he, by failing to be there as
agreed, waived all right to insist upon the performance of the
contract or the recovery of damages for a breach, as it was his
breach, and not appellant's. Tuxbury and Hancock went
there, at the time, to perform the contract, and remained for
about a quarter of an hour after two, awaiting the arrival of
appellee; and Tuxbury swears that he went there to receive
the money and securities, and to deliver the deeds. If such
was the agreement, then appellee failed to comply with his
part of the agreement, and appellant's agents had the un-
doubted right to declare the contract at an end; or, rather,
Tuxbury had the right to terminate appellant's contract with
his brother, and as appellee's and appellant's agreement was
dependent on it, this fell with it.
In so far as the instructions in the case conflict with the
views here expressed, they were improperly given, and so far
as those which were refused conform, they should have been
given.
The judgment of the court below is reversed.
Judgment reversed.
1873.] Eeed v. West et al. 479
Opinion of the Court.
Hiram Reed
V.
Salome C. West et al.
Res adjudicata — decisions of Supreme Court. The Supreme Court has
no power to review its own judgments, except upon a petition for a re-
hearing, presented in accordance with the rules established for that pur-
pose.
Appeal from the Circuit Court of Kane county; the Hon.
Silvanus Wilcox, Judge, presiding.
Messrs. Wheaton, Smith & McDole, for the appellant.
Messrs. Mayborne & Brown, for the appellees.
Mr. Justice Scott delivered the opinion of the Court:
This cause was before this court at a former term, 55 111. 242.
A full and accurate statement of the facts appear in the opin-
ion then delivered. Some additional testimony has been
taken, but we are unable, after a most careful consideration,
to discover wherein the case differs materially from that pre-
sented in the former record.
The facts are substantially alike, and the questions of law
are the same. Upon a full review of the facts, and a careful
consideration of the questions of law raised, the court was
of opinion, all the members concurring, the case presented
no grounds for equitable relief.
Although the transaction originally presented the relation
of mortgagor and mortgagee, yet, it clearly appeared, the
equity of redemption of the mortgagor had been extinguished
for a valuable consideration. No fraud was practiced, nor
undue influence used, in procuring the equitable estate of ap-
pellant, and no reason was shown why the sale should be re-
scinded.
480 Bush v. Hanson. [Sept. T.
Syllabus.
We see no reason to doubt the correctness of the judgment
then pronounced, and the questions of law being practically
identical with the case made in the previous record, the
former judgment must be held to be conclusive of the rights
of the parties. This court has no power to review its previous
judgments, except upon a petition for rehearing, presented
in accordance with the rules established for that purpose.
Ogden v. Larrabee,.post, p. 510.
It is urged the court misapprehended the facts in the
former record, or it would have reached a different conclusion.
If the objection had any foundation in fact, it is now too late
to urge it upon the attention of the court. But a reconsid-
eration shows there was no misapprehension of the facts.
There can scarcely be a doubt we would reach the same
conclusion, upon the present record, that we arrived at in the
former decision, if we should again consider the case; and the
decree of the circuit court having been rendered in accordance
with the views then expressed, it must be affirmed.
Decree affirmed.
Hiram F. Bush
v.
Joseph H. Hanson.
1. Jurisdiction. The power to hear and determine a case, is juris-
diction; it is coram judice whenever a case is presented which brings this
power into action.
2. Same— -judgment by confession. Where a declaration, the warrant
of attorney, and affidavit of its execution, the note and cognovit by the
attorney authorized, are filed, the defendant is before the court, and there
is enough to set the court in motion to hear and determine.
3. If, in such case, the court proceeds, and, in rendering judgment,
acts without sufficient evidence, without the oral testimony required by
the 2d section of the act of 24th of February, 1859, concerning confes-
sions of judgment, having been produced, a case will be presented, not
1873.] Bush v. Hanson. 481
Opinion of the Court.
of want of jurisdiction, but one onty of error in the exercise of jurisdic-
tion.
4. The production of the evidence required by that act to authorize
the judgment is not a jurisdictional fact, where the court has before
acquired the right to proceed to hear testimony and determine the case.
5. Cognovit — warrant of attorney to confess judgment. A warrant of
attorney to confess judgment, is a familiar common law security, and the
entry of judgment by cognovit thereunder is a proceeding according to
the course of the common law, which courts have ever entertained, in the
ordinary exercise of their authority as courts of general jurisdiction.
6. And the fact that the statute has regulated the mode of procedure,
does not convert the proceeding into one of such a special statutory char-
acter, that the same presumptions do not obtain as in the case of ordinary
judgments of superior courts of general jurisdiction.
7. Although, by the declaration, the action may appear to be prema-
turely brought, a confession of judgment will cure the defect.
Weit of Error to the Circuit Court of "Will county ; the
Hon. Josiah McRoberts, Judge^ presiding.
Mr. G. D. A. Parks, for the plaintiff in error.
Mr. George S. House, for the defendant in error.
Mr. Justice Sheldon delivered the opinion of the Court :
This was a motion to set aside a judgment by confession,
against Bush, the plaintiff in error, by virtue of a warrant
of attorney.
The note upon which the judgment was rendered bore date
September 8th, 1871, payable six months after date, and was
accompanied by a warrant of attorney, of the same date,
executed by Bush, the maker of the note, especially author-
izing the entry of the appearance of Bush, and the confes-
sion of judgment upon the note at any time after the date of the
warrant of attorney. The judgment was confessed by the attor-
ney authorized, in open court, on the 30th day of September,
1871. The motion to set it aside was made June 4th, 1873, and
was overruled by the court below, from which decision in
overruling the motion, Bush prosecutes this writ of error.
31— 70th III.
482 Bush v. Hanson. [Sept. T.
Opinion of the Court.
The main point urged for the reversal of the judgment is,
that the record does not affirmatively show the production,
by the plaintiff, of the testimony required by the 2d section
of the act of 24th of February, 1859, entitled uAn act con-
cerning confession of judgment."
The provision of that section is, that before any court shall
be authorized to render judgment on any note not then being
due by the terms thereof, by virtue of any supposed authority
contained in any accompanying power of attorney, the plain-
tiff shall prove, by testimony to be produced and taken orally
in court, that at the time of the execution of the power of
attorney, the person who executed the same was particularly
informed, and then knew, that the meaning of the power of
attorney was, to authorize the rendition of judgment on the
note, before the same should become due by its terms; and
also, that the plaintiff will be in imminent danger of losing
the debt thereby secured, unless a judgment shall be ren-
dered thereon immediately.
It is contended by counsel for defendant in error that the
proof required by the statute is necessary to give jurisdiction ;
that in the rendition of the judgment, the court exercised a
special statutory authority, not according to the course of
the common law, and which does not belong to it as a court
of general jurisdiction, and that, therefore, the proceeding
stands on the same footing with those of courts of inferior
jurisdiction, where everything will be presumed to be with-
out the jurisdiction which does not appear by the record to
be within it.
Jurisdiction .has been thus defined : The power to hear
and determine a cause, is jurisdiction; it is coram judice
whenever a case is presented which brings this power into
action. United States v. Arredondo et a!. 6 Pet. 709. There
can be no question here as to jurisdiction of the subject
matter.
It appears, from the judgment order, that a declaration,
the warrant of attorney, and affidavit of its execution, the
1873.] Bush v. Hanson. 483
Opinion of the Court.
note and cognovit by the attorney authorized, were filed. The
defendant in the judgment was before the court by appear-
ance by his duly authorized attorney. A case of jurisdiction
was then presented. There was enough to set the court in
motion to hear and determine. If thereupon the court pro-
ceeded, and, in the rendering of its judgment, acted without
sufficient evidence, without the oral testimony, required by
the statute, having been produced, a case would be presented,
not of want of jurisdiction, but one only of error in the
exercise of jurisdiction. The production of the requisite
evidence to authorize the judgment, was not a jurisdictional
fact, where the court had before acquired the right to pro-
ceed to hear testimony and determine in the case.
A warrant of attorney to confess judgment, is a familiar
common law security. The entry of judgment by cognovit
thereunder, is a proceeding according to the course of the
common law, which courts have ever entertained, in the
ordinary exercise of their authority as courts of general juris-
diction. The fact that the statute has regulated the mode
of procedure, does not convert the proceeding into one of
such a special statutory character, that the same presumptions
do not obtain as in the case of ordinary judgments of superior
courts of general jurisdiction. The point was directly so
ruled in the case of Osgood v. Blackmore, 59 111. 261. The
judgment there, was one by confession, on a note due thirty
days after written notice, by virtue of a warrant of attorney,
which authorized a confession of judgment after the maturity
of the note.
It did not appear, by the record, that the notice had been
given to render the note due. It was held, that it must be
presumed, in favor of a judgment of a superior court, that
evidence was heard that the required written notice had been
given to render the note due.
It is insisted that, inasmuch as .there is a recital of the
filing of the warrant of attorney, and the proof of its execu-
tion by affidavit, and of the filing of the cognovit, and that
484 Poet v. Poet et al [Sept. T.
Syllabus.
there was full investigation of the fairness of the transaction
by the court, the inference is, that no other proof was offered.
But it has ever been held by this court that, where the evi-
dence appearing in the record in a suit at law is not sufficient
to sustain the verdict and judgment, it would be presumed, in
support of the judgment, that other sufficient evidence, for
that purpose, was given on the trial, unless the bill of excep-
tions states that it contains all the evidence that was given.
As the judgment order does not purport to recite all the proof
that was made, it is not to be inferred that no other than
that recited was made.
It is objected that the declaration contains no averment
of the facts required by the statute to be proved, and that
without that, it shows no cause of action at the time it was
filed. Although, by the declaration, an action may appear
to be prematurely brought, a confession of judgment would
cure the defect.
Perceiving no error in the overruling of the motion, the
judgment of the court below is affirmed.
Judgment affirmed.
Nellie Poet
V.
Sarah Poet et al.
1. Marriage— presumption of. The cohabitation of two persons of
different sexes, and their behavior, in other respects, as husband and wife,
always afford an inference, of greater or less strength, that a marriage
has been solemnized between them ; yet such inference is destroyed by
evidence that no marriage, in fact, ever was solemnized.
2. Same — whether valid if entered into according to common law. Where
the statute does not prohibit or declare void a marriage not solemnized
in accordance with its provisions, a marriage without observing the statu-
tory regulations, if made according to the common law, will still be
valid.
1873.] Port v. Port et al. 485
Opinion of the Court.
3. Same — evidence of, at common law. By the common law, if the con-
tract is made per verba de presenti, it is sufficient evidence of a marriage.
If it be made per verba de futuro cum copula, the copula is presumed to
have been allowed on the faith of the marriage promise, and that the
parties, at the time of the copula, accepted of each other as husband and
wife ; but this is only a rule of evidence, and it is always competent, in
such cases, to show that the fact was otherwise.
4. If the woman, in surrendering her person, is conscious that she is
committing an act of fornication, instead of consummating her marriage,
the copula can not be connected with any previous promise, and marriage
is not thereby constituted.
Appeal from the Circuit Court of Cook county; the Hon.
William W. Farwell, Judge, presiding.
Messrs. Rosenthal & Pence, for the appellant.
Mr. Geo. W. Thompson, and Mr. Evert Van Buren, for
the appellees.
Mr. Justice Scholfield delivered the opinion of the
Court :
This record presents only the single question, is the com-
plainant the widow of Silas Port, deceased?
It was proved, by a number of witnesses, that Silas Port
and the complainant lived together, in rooms which he had
rented at 457 South Clark street, Chicago, from May, 1870,
until his death, in March, 1872. Daring this time, they ate
and slept together, and, in other respects, deported themselves
towards each other, apparently, as husband and wife. On a few
occasions, they attended places of public amusement, where
he introduced her as his wife. He frequently spoke of her,
in the presence of others, as his wife, and introduced her to
some of his acquaintances and friends by that designation.
It is, no doubt, true, that the mere cohabitation of two per-
sons of different sexes, or their behavior, in other respects, as
husband and wife, always affords an inference, of greater or
less strength, that a marriage has been solemnized between
them. Their conduct being susceptible of two opposite ex-
486 Poet v. Port et al. [Sept. T.
Opinion of the Court.
planations, we are bound to assume it to be moral, rather
than immoral; and credit is to be given to their own asser-
tions, whether express or implied, of a fact within their own
knowledge. Canjolle v. Ferrie, 23 N. Y. 107; 2 Greenleafs
Evidence, sec. 462; 1 Bishop on Marriage and Divorce, sees.
13, 457, and note. But, in the present case, it is admitted no
marriage was, in fact, ever celebrated between the parties, in
any mode prescribed by our statute. It is claimed, however,
that there was a valid common law marriage between them,
and it is to this inquiry our attention must be directed.
We are inclined to the opinion, supported as it is by the
statements of many of the most eminent text writers, as well
as by the decisions of courts of the highest respectability,
that, inasmuch as our statute does not prohibit or declare
void a marriage not solemnized in accordance with its provi-
sions, a marriage without observing the statutory regulations,
if made according to the common law, will still be a valid
marriage, and that, by the common law, if the contract be
made per verba de presenti, it is sufficient evidence of a mar-
riage ; or, if it be made per verba de futuro cum copula, the
copula is presumed to have been allowed on the faith of the
marriage promise, and that so the parties, at the time of the
copula, accepted of each other as man and wife. Bishop on
Marriage and Divorce, sees. 253, 254.
This is, however, merely a rule of evidence, and it is always
competent, in such cases, to show by proof that the fact was
otherwise. 1 Bishop on Marriage and Divorce, sec. 259;
Myatt v. Myatt,44: 111. 473 ; Conant v. Griffin, Admr. 48 id. 410.
The rule is well illustrated by the language of Lord Camp-
bell, in The King v. Millis, 10 Clark & Fin. 534, 782, quoted
by Bishop in the paragraph last referred to : " If the woman,
in surrendering her person, is conscious that she is committing
an act of fornication, instead of consummating her marriage,
the copula can not be connected with any previous promise
that has been made, and marriage is not thereby constituted."
Upon this principle, it was held in Becking's Appeal, 2 Brewst.
1873.] Port v. Port et al. 487
Opinion of the Court.
(Pa.) 202, " a man may live with his kept mistress in such a
way as to create a kind of repute of marriage, among some
persons ; may, in order to gratify her, hold himself out to her
acquaintances as her husband ; may be a constant visitor, and
often eat and sleep at her house; may recognize the fruit
of the connection as his children, and manifest affection for
them ; and yet the evidence may fall far short of that which
ought to satisfy the mind that there was an actual agreement
to form the relation of husband and wife." See, also, Physic's
Estate, id. 179; and in a Scotch case, also referred to by
Bishop, in sec. 259 {Forbes v. Countess of Strathmore, Ferg.
Consist. Law Eep. 113), "where a countess, after a promise
of marriage with her footman, yielded to his embraces, it was
conceded, by all the counsel and the court, that marriage
would not be presumed, there being such a disparity of rank
and circumstances as rendered probable her allegation that
she had rather chosen to indulge a licentious passion than
degrade herself from her high rank and station in society, by
espousing her own menial servant."
There is no pretense that there was a contract between
these parties to marry, per verba de presenti, and we strongly
incline to the belief, from the evidence, that Port always re-
fused to agree to marry, at any time. Appellant, it is true,
swears that there was a contract to marry in the future, but
Olter swears that, about three weeks before Port's death,
appellant was crying, and he asked her what was the matter.
She replied that her uncle was going to have them arrested
for living in a state of adultery; that she had been pleading
with deceased to marry her, and he would not do it; that she,
in the morning, asked him to marry her, and he answered her
in language of contempt, too obscene for repetition. The
witness says, on another occasion he said to appellant, alluding
to the way in which she and deceased were living together:
"It is no way to live, this way." She replied: " He never
will talk marry to me at all, from the first time he ever went
with me."
488 Port v. Port et al. [Sept. T.
Opinion of the Count.
William Port also swears, while they were on the road
from Chicago to Cambridge City, Indiana, whither they were
taking the dead body of Port for burial, he asked appellant
if she was married to the deceased, to which she replied that
she was not. He then asked her whether the deceased ever
promised to marry her, and she answered that he did not.
Each of these conversations is emphatically denied by appel-
lant, and a question of veracity is thus presented, in which
she is, to say the least, unfortunate in not being corroborated.
William Port is certainly interested in the result of the suit,
and it may be, that this interest, in some degree, biases his
evidence; but appellant is likewise interested therein, and to
a greater extent than he is. Olter, however, appears to be
entirely disinterested.
From the reading of this record, we perceive nothing
from which we can conclude that William Port and Olter are
not entitled to quite as much respect and confidence, as wit-
nesses, as is appellant. The preponderance, then, upon this
point, is against her. She is successfully contradicted, and
we can not say that the court below erred, even if its decision
could only be sustained on this view of the case.
But, if we shall concede that the evidence sufficiently shows
there was a contract between these parties to marry in the
future, it is certain that neither of the parties, in the lifetime
of Port, ever considered that the contract was consummated.
No children were born to them, and, aside from the inferences
to be drawn from their residing together, the only evidence
of copula is in admissions of the criminal character of their
cohabitation. The relatives of neither party ever regarded or
treated them as married, and the uncle of appellant, and the
mother of the deceased, at different times, threatened to
prosecute them for living together in an open state of forni-
cation. Appellant virtually admitted that she was guilty of
this charge. She did not deny it, or pretend that she had
supposed they were married, or that she had been deluded to
act as she had, under representations that it would constitute
1873.] Port v. Port et al. 489
Opinion of the Court.
them man and wife. She cried, and appealed to deceased to
marry her — the only way by which her guilt could be atoned.
She says, upon one occasion the deceased "said he would have
to marry her; that he could not live so." Live how? What
did deceased understand, and what did she understand, by
that remark? Manifestly, there can be but one answer: "in
a state of fornication." This was after they had lived
together some time, and after, she says, he had first promised
to marry her. No allusion was made to anything which had
been done in consummation of a marriage contract, and there
was no pretense that either of them then thought they were
informally or otherwise married. In the same conversation
she further states he said, "his mother wouldn't let him live
so, and he would marry her that fall — in a few weeks." This
was not done, and there does not appear to have been a word
or act between them, subsequently, which was intended or
understood by either of them to have been in consequence of
that promise. She also says, upon one occasion Olter told
her that the mother of the deceased, with whom he had then
recently been in conversation, after inquiring about appellant,
said, "she did not think it right for Silas to live so, and that
if he did not marry appellant, she would punish him — put
him in jail." Appellant did not then attempt to excuse her-
self by claiming that they had done what they had on the
faith of a marriage, or that she had been deluded and deceived
by deceased, or otherwise, into the belief that they were, in
fact, husband and wife. The Only attempted extenuation
interposed by appellant, at any time, for her conduct, was
accompanied by an admission of her knowledge that their
intercourse was illegal. It was, that she was not to blame,
for she had repeatedly asked deceased to marry her, and he
would not do it, but kept putting it off. To Deborah Olter,
she said, about three days after Port's death, she was never
married to him. The witness observed, she did not see how
she could live with him in that way, without being married,
and her only reply was, that half of Chicago lived in that
490 Port v. Port et al [Sept, T.
Opinion of the Court.
way. To Mrs. Crocker, on the clay of Port's death, she also
said she was not married to him. In excuse for these state-
ments, which she does not deny, she says that she then thought
some ceremony was necessary, to constitute a marriage, but
she points to no preceding act or agreement between them
which was intended by them as or on account of a marriage.
She being a witness, if truthful, nothing is left to inference.
She knows all that was said, and, on her part at least, all that
was intended between them. It is her interest to disclose
everything tending to establish her marriage, and the pre-
sumption is, she has done so, yet Port went to his grave,
intending to be, and believing he was, an unmarried man,
and she never discovered that she was a widow, until some
time subsequent to his death. Can it be possible, that par-
ties can be lawfully married, when neither intend or know
it? We think not. Appellant admits that the promise to
marry was in the future, and she also shows that it ever con-
tinued to be in the future. If, prior to copulation, or as a con-
dition thereto, their minds were, in fact, changed, and the
future promise was converted into a present one, it is a fact
which she must have known. That she does not state that any
such change ever occurred, but, on the contrary, that Port
kept putting her off, is conclusive against the presumption that
there was such change. Believing, as she says, that a cere-
mony was necessary to constitute marriage, it would not be
reasonable to suppose that they had done anything else which
they intended or expected to be a consummation of the mar-
riage contract. And, so believing, it also necessarily follows,
in the language of Lord Campbell, before quoted, "in sur-
rendering her person, she was conscious that she was com-
mitting an act of fornication." There is this distinction
between the present case and those referred to by counsel,
where it was held, that the fact that the party had doubts as
to the validity of her marriage, did not prejudice her rights.
In those cases, something was done intended as a marriage.
Here, there was nothing of the kind.
1873.] Yocht v. Reed. 491
Opinion of the Court.
The only theory upon which appellant's claim can be sus-
tained is; that a contract per verba de futuro cum copula, is not
merely presumptive evidence of a marriage, liable to be rebut-
ted and overcome by other evidence, but that it is conclusive
of the question, which is not, and is not claimed to be, the
law.
The conduct of Port, in introducing appellant as, and call-
ing her, his wife, when considered in connection with the
other evidence, proves merely a desire to avoid the odium
and danger to which they would have been exposed if the
truth had been known, and hence does not impair the force
of the other testimony, direct and conclusive as it is in its
nature.
The decree of the court below must be affirmed.
Decree affirmed.
John Vocht
V.
John Reed.
Replevin — does not lie for property taken for taxes. The action of re-
plevin does not lie to recover property levied on for taxes, although it
may be seized on a warrant against one not the owner of the property.
The owner's remedy in such case is by an action of trover or trespass
against the officer.
Appeal from the Circuit Court of Stephenson county; the
Hon. William Brown, Judge, presiding.
Mr. John C. Kean, for the appellant.
Mr. U. D. Meacham, for the appellee.
Mr. Justice Craig delivered the opinion of the Court :
This was an action of replevin, commenced by John Reed
against John Vocht, before a justice of the peace of Stephenson
492 Vocht v. Eeed. [Sept. T.
Opinion of the Court.
county, to recover a certain crib of corn. The cause was
tried, and an appeal taken to the circuit court, where it was
again tried, before the court, without a jury, and judgment
was rendered against the defendant, and he brings the cause
to this court by appeal.
The facts, as shown by the record, are these: In 1870,
Brennamon owned forty acres of land in Rock Grove town-
ship, Stephenson county; Reed occupied the land as his ten-
ant. Brennamon did not reside in the township. The corn
in question was raised on the land, but was owned by Reed.
Vocht was tax collector for the township, in 1870; the tax
against Brennamon on the land for that year was $19.38.
Vocht, by virtue of a tax warrant against Brennamon for
this tax, levied on the corn in question, which stood upon
the land.
The only question involved in this case is, whether an ac-
tion of replevin will lie to recover property from a tax col-
lector, which has been taken under and by virtue of a tax
warrant. The statute provides, that, before a writ of replevin
shall issue, the plaintiff, or some one on his behalf, shall make
oath that the plaintiff is the owner of the property, or that he
is lawfully entitled to the possession thereof, and that the
same has not been taken for any tax, assessment or fine levied
by virtue of any law of this State, nor seized under any exe-
cution or attachment against the goods and chattels of such
plaintiff, liable to execution or attachment.
In the case of McClaughry v. Cratzenberg, 39 111. 1 17, this court
held an affidavit in an action of replevin insufficient, which
read, "that the property had not been taken for any assess-
ment or fine levied by virtue of any law of this State, nor
seized under any execution or attachment against the goods
and chattels of affiant; and, further, that the same has not
been taken for any legal tax, as this affiant is informed and
believes."
The plaintiff in that case offered to file an amended affi-
davit, in strict conformity to the statute, which the court re-
1873.] Vocht v. Eeed. 493
Opinion of the Court.
fused. This court, in disposing of that question, said, "The
amended affidavit, if filed, and a trial had, would have pre-
sented the same question, so that, if the original affidavit
had strictly complied with the statute, the effort would have
been vain and fruitless, for the court would have been com-
pelled to dismiss the suit the very moment it was shown a
question of taxation was involved, and the constitutionality
of the law imposing the tax was the hinge on which the case
turned."
In the case of ML Carbon Coal and Railroad Company v.
Andrews, 53 111. 179, it was held, that the clause of the statute
requiring the plaintiff to swear that the property has not
been taken for any tax, assessment or fine levied by virtue
of any law of this State, was imperative, and the writ could
not issue without it.
In discussing the question, the court use this language:
"'The legislative intention to prohibit property from being
replevied, where it has been taken for any tax, is, by this
enactment, rendered perfectly manifest."
In Heagle et al. v. Wheeland, 64 111. 423, it was held, re-
plevin could not be maintained to take property out of the
hands of a tax collector, who had seized it under a tax war-
rant, for the collection of the revenues of the country.
The cases cited, supra, are, however, where the paiiy
against whom the tax was assessed sought to take the prop-
erty by an action of replevin, and it is claimed by appellee
that the law, as declared in those cases, does not apply to this.
In support of that position, numerous authorities are
cited to show, when property is taken by an officer, under an
execution, a stranger to the execution may maintain replevin,
by filing an affidavit under the last clause of section 3 of the
Replevin Act.
Upon comparison of the two clauses of section 3, it will be
seen, there is a striking difference between them; the one
reads, "and that the same has not been taken for any tax,
assessment or fine levied by virtue of any law of this State;"
494 Yocht v. Eeed. [Sept. T.
Opinion of the Court.
the other clause reads, "nor seized under any execution or at-
tachment against the goods and chattels of such plaintiff lia-
ble to execution or attachment.
Where the goods of a stranger to an execution are taken,
he can, with truth and propriety, swear that the property was
not taken by virtue of an execution or attachment against
his goods and chattels liable to execution or attachment, but
where property is taken by a tax collector, under a warrant
for taxes, a different case is presented. The point is, not
whether the property is liable to the tax warrant, as is the
case when taken on execution or attachment, but has the
property been taken on a tax warrant.
If it has, the writ of replevin can not issue, because the
statute says, no writ shall issue, until an affidavit is filed that
the property has not been taken for any tax, assessment or
fine levied by virtue of any law of this State.
The effect of the statute is, that the action of replevin does
not lie in any case, where property is seized by a tax collec-
tor, under a tax warrant. The object and intent of the stat-
ute are obvious. The government can not be carried on, and
the laws enforced, without the revenue is collected. If the
collectors of the revenue were to be hampered and tied up by
replevin suits, when they are collecting the taxes, it would be
found difficult, if not impossible, to make collection, and we
have no doubt the legislature foresaw these difficulties and
prohibited the action of replevin, for the very purpose of avoid-
ing them.
It is, however, insisted, by appellee, that it is a great hard-
ship to have one man's property taken to pay the tax of
another. The tax collector has no right to take the property
of one, to pay the tax of another; if he does it, he is liable.
The injured party has his remedy in trover or trespass. If
the officer takes property of one, to pay the tax of another,
he acts at his peril; and the laws of the country will compel
him to respond in ample damages to the injured party; so
1873.] Yocht v. Reed. 495
Mr. Chief Justice Bbeese, dissenting.
that the law, while it prohibits a remedy by action of replevin,
affords ample protection in another form of action.
The judgment of the circuit court will be reversed, and
the cause remanded.
Judgment reversed.
Mr. Chief Justice Breese, dissenting:
I can not believe it was the intention of the legislature to
authorize the levy and sale of the property of A to pay the
taxes assessed against B. The design of the statute evidently
was, to prevent any person whose property has been levied
on for taxes assessed against him, to question it in an action
of replevin, and that is the extent of McClaughry v. Cratzen-
berg, 39 111. 117, as the reasoning of the opinion shows.
A person may be passing through a town or city of this
State, with his vehicle, and it is seized by a tax gatherer for
the taxes, not assessed against that property or its owner, but
against another person. Under this decision, that official in
Chicago, or any other place, can enter the dwelling of a per-
son, and take from it his choicest furniture, his heir-looms
and valuable works of art, to pay taxes not assessed against
it and for which it is not liable.
It is poor satisfaction, and the merest trifling with one's
rights to property, to say he can sue the officer in trover or
trespass. The officer may not be able to respond in damages,
and in the meantime the owner has lost an article of property
for which money would be no compensation, as there is a
matter of sentiment involved in the possession of such.
It would be no satisfaction to one on a journey, to have
his horse and carriage taken from him in this way, and be
denied a speedy remedy, by replevin, to repossess himself
of his property, and proceed on his journey. Nor would it
be to a farmer, who has brought a load of wheat to market.
In this case there was no public necessity for this levy, as the
land, upon which the tax was assessed, was immovable, and
could be sold, as in like cases, for the taxes. I can not be-
496 Freese v. Tripp. [Sept. T.
Syllabus.
lieve it could have been the intention of the law-makers that
this act should have the construction now given it by this
court. Every man's property is now at the mercy of the tax
gatherer, whether taxes are due upon it or not.
This is, in my opinion, a great wrong and injustice.
Mr. Justice Scott: I concur with the Chief Justice in
the above construction of the statute.
Daniel Freese
V.
Mary Ann Tripp.
1. Intoxicating liquors — statute relating to, how construed. The Liquor
Statute of 1872, being of a highly penal character, providing a right of
action unknown to the common law, in which the party prosecuting has
a decided advantage, should, according to the well understood canon, re-
ceive a strict construction.
2. Same — damages for mental anguish, etc,, not allowable. In a suit by
a wife for the selling or giving of intoxicating liquor to her husband,
the anguish or pain of mind or the feelings, suffered by her by reason of
her husband's intoxication, is not a matter for the consideration of the
jury, in assessing damages, but the damages are confined to her injury
in person, property or means of support.
3. Same — exemplary damages. In an action by a wife against one for
selling intoxicating liquor to her husband, no exemplary damages can be
given without proof of actual damages, and an instruction that, if the
act was not wilful or wanton, the jury should give exemplary damages,
and, if it was wilful or wanton, they should annex more damages, is erro-
neous.
4. Same — exemplary damages not recoverable. As the statute has pro-
vided for the punishment of those who sell or give away intoxicating
liquors contrary to its provisions, by indictment, etc., it follows that ex-
emplary or punitive damages can not be awarded in a civil suit by one
claiming to be injured by the offense.
5. Foreign statute — construction. Where the statute of another
State is adopted, it will be presumed that the prior construction placed
upon it by the highest court of such other State, is also adopted.
1873.] Freese v. Tripp. 497
Opinion of the Court.
6. Exemplary damages — when allowable, defendant has a right to show
matters in mitigation. If the court instructs the jury that the plaintiff is
entitled to recover exemplary damages, in a suit against one for the sale
of liquor to her husband, the defendant should have the right to show
matters in mitigation, such as that he had forbidden his clerk to sell to the
husband, and to have that fact considered by the jury, on the question of
exemplary damages only.
Appeal from the Court of Common Pleas of the city of
Aurora; the Hon. Kichard G. Montgny, Judge, presiding.
This was an action brought originally before a justice of
the peace, by Mary Ann Tripp against Daniel Freese and
others, to recover damages for selling liquor to her husband,
William Tripp. The opinion of the court states the essential
facts of the case.
Mr. Charles J. Metzner, for the appellant.
Mr. Frank M. Annis, and Mr. A. J. Hopkins, for the ap-
pellee.
Mr. Chief Justice Breese delivered the opinion of the
Court :
This was an action brought before a justice of the peace
in the city of Aurora, in the county of Kane, by Mary Ann
Tripp against Daniel Freese, under the fifth section of the act
of the 13th of January, 1872, entitled "An act to provide
against the evils resulting from the sale of intoxicating
liquors in this State," in force July 1, 1872.
Section 2 of this act declares, it shall be unlawful for any
person or persons, by agent or otherwise, to sell intoxicating
liquors to minors, etc., or to persons intoxicated, or who are
in the habit of getting intoxicated.
Section 5 provides, that every husband, wife, child, parent,
guardian, employee or other person who shall be injured in
person or property or means of support by any intoxicated
person, or in consequence of the intoxication, habitual or
otherwise, of any person, shall have a right of action in his
32— 70th III.
498 Freese v. Teipp. [Sept. T.
Opinion of the Court.
or her own name, severally or jointly, against any person or
persons who shall, by selling or giving intoxicating liquors,
have caused the intoxication, in whole or in part, of such
person or persons; * * * and a married woman shall
have the same right to bring suits, and to control the same,
and the amount recovered, as a feme sole; * * * and
all suits for damages under this act may be by any appro-
priate action, in any of the courts of this State having com-
petent jurisdiction.
Section 9 provides, in the last clause, "and justices of the
peace shall also have jurisdiction of all actions arising under
the 4th and 5th sections of this act, when the amount in con-
troversy does not exceed two hundred dollars, such actions to
be prosecuted in the name of the party injured or entitled to
the debt or damages provided for in said 4th and 5th sections."
Sess. Laws 1872, pp. 553-4-5.
The plaintiff sued as the wife of William Tripp, demand-
ing one hundred dollars of defendant, for selling her husband,
who was in the habit of getting intoxicated, intoxicating
liquors. Plaintiff recovered a judgment for one hundred
dollars. Defendant appealed to the Court of Common Pleas
of the city of Aurora, where the cause was tried by a jury,
who returned the following verdict: We, the jury, find
Daniel Freese guilty, and assess damages of one hundred dol-
lars, as exemplary damages.
This verdict the court refused to receive, but instructed the
jury not to specify, in their verdict, the damages as actual or
exemplary. The jury then retired, and returned in a few
moments, with a verdict for plaintiff, of one hundred dollars.
A motion for a new trial was overruled, and judgment ren-
dered against the defendant.for one hundred dollars, to reverse
which, the defendant appeals.
The case shows that defendant was engaged in selling
intoxicating liquors, under a license from the city authorities
of Aurora, and that Tripp was a shiftless fellow, in the habit
of getting intoxicated, and has been for years. Defendant
1873.] Fkeese v. Tkipp. 499
Opinion of the Court.
offered to prove that plaintiff herself was a drunkard, and
had been confined in the calaboose for being found drunk on
the streets.
It appears her husband was in the saloon with one Bene-
dict, and the plaintiff near the door when the liquor was pro-
duced on the counter, and could have prevented the act, had
she been disposed. The whole thing seems very much like a
concerted plan to entrap the defendant, and was successful.
Many like cases will probably occur in enforcing this act.
There is nothing easier, than for a husband and wife of low
morals, as these parties were, to combine and make a case,
calculating on the prejudices of juries for success.
The statute, under which this proceeding originated, is of
a highly penal character, providing a right of action unknown
to the common law, in which the party prosecuting has a
decided advantage, and should, according to the well under-
stood canon, receive a strict construction.
Appellant makes his point chiefly on the instructions, and
claims that the first instruction for plaintiff was erroneous.
It was as follows :
"If the jury believe, from the evidence, that William Tripp
was, before and at the time of the alleged selling or giving
of intoxicating liquors to him, by the defendant or his bar-
keeper, an habitual drunkard, and that the plaintiff, in means
of support or his person, was injured by said William Tripp, her
husband, while he was intoxicated, or in consequence of his
intoxication, caused, in whole or in part, by the defendant, or his
agent or bar-keeper, selling or giving to him, said William
Tripp, intoxicating liquors since July 1st, 1872, and before the
commencement of this suit, then the jury should find for the
plaintiff actual damages to the extent of the injury, and also
exemplary damages, and, in determining the injury in person
or to the plaintiff, the jury have the right to consider the
anguish or pain of mind, feelings the plaintiff suffered, if
any, by reason of such intoxication of her husband, if any is
500 Feeese v. Tripp. [Sept. T.
Opinion of the Court.
shown by the proof, as well as loss of support, if shown by
the proof, and exemplary damages are imposed upon the de-
fendant with a view of punishing him for disregarding the
law in selling or giving away, to the plaintiff's husband, intox-
icating liquor, in violation of law, if such has been shown;
and, in fixing the amount of exemplary damages, the jury
should consider whether or not the act was wilful or wanton,
or not; if it was not, the jury should give her exemplary
damages; if it was wilful or wanton, the jury should annex
more damages."
This instruction is erroneous, for several reasons. In the
first place, it is not clear and intelligible, and is difficult of
comprehension. In the next place, "the anguish or pain of
mind, feelings the plaintiff suffered by reason of such intox-
ication of her husband," is not a matter for the consideration
of the jury. The statute contemplates injury in person or
property or means of support, and not mental anguish. The
Supreme Court of Ohio, from which State our statute is de-
rived, substantially, hold it is not proper, in such a case, to
charge the wife has suffered mental anguish, disgrace or loss
of society or companionship — all that does not amount to
injury of the person, within the meaning of the statute.
Mulford v. Clewell, 21 Ohio St. Eep. 191.
In the third place, it directs the jury to give not only actual
damages, but also exemplary damages, whether actual dam-
age is shown or not; and, fourth, it directs the jury to inquire
whether the act was wilful or wanton, or not, and if it was
not, the jury should give her exemplary damages; if it was
wilful or wanton, the jury "should annex more damages."
We think this is asking too much of the jury. They are
told, in effect, if no actual damage has been occasioned, they
may find exemplary damages, if the act of selling was not
wilful ; if it was wilful, they may annex more damages, even
if they think no actual damage has been done.
1873.] Feeese v. Teipp. 501
Opinion of the Court.
We hold, a fair construction of this statute requires a party,
suing under its provisions, should prove, to the satisfaction
of the jury, actual damages sustained. "Without this, exem-
plary damages can not be awarded. This is the construction
placed upon the act by the highest court of the State of Ohio,
and it is reasonable to suppose the legislature adopted the
law with the construction put upon it, as generally held.
Schr eider v. Hosier, ib. 98.
And exemplary damages can not be awarded as punishment
in this action, for the reason the statute provides the public
shall avail of its punitive provisions, which are, fine and im-
prisonment in the county jail, the penalty of imprisonment
to be enforced by indictment. Sees. 6, 8. Putting money in
the plaintiff's pocket would be no satisfaction to the public
for a violated penal statute.
Several of plaintiff's instructions contain the infirmity,
that exemplary damages may be given, without proof of actual
damage. Actual damage to the wife, is the central idea in
the statute. If that is not established, the case falls.
It is urged, this error was cured by plaintiff's ninth instruc-
tion, which was, that the jury could not assess any exemplary
damages, unless they first find plaintiff has sustained actual
damages, under the proof and instructions of the court.
Now, as the instructions before given were not in entire
harmony with this, the jury would be very much puzzled to
know what to do. They did, on retiring, find and return into
court a verdict for exemplary damages, only. Though the
court declined to receive this verdict, and sent the jury out
to find a verdict for damages, without specifying that they
were exemplary, they returned a verdict the same in amount,
which we have a right to infer was for exemplary damages,
as no new and additional evidence had been received. The
jury have found no damages but exemplary damages.
The defendant complains that the 12th instruction asked
by him was refused. It was as follows:
502 Fkeese v. Tripp. [Sept. T.
Justices Scott, Sheldon and Craig-, dissenting.
"If the jury believe, from the evidence, that the defendant
did not sell or give away liquor to William Tripp, himself,
and that he prohibited and forbid his bar-keeper selling or
giving away any liquor to said Tripp, then such fact should
be taken into consideration as to whether or not the plaintiff
is entitled to exemplary damage, if the jury should find the
defendant guilty."
The court having instructed the jury, on behalf of plaintiff,
that they could give exemplary damages, it was but fair
defendant should have the right to show matters in mitigation.
If defendant, in good faith, had forbidden his clerk or bar-tender
to sell or give liquor to this drunkard, and the clerk wilfully
disobeyed him, without defendant's connivance, it seems to
us it would be a fair subject for consideration in mitigation,
not of the actual damage which may have been caused and
done, but of the vindictive damages claimed. This instruc-
tion should have been given.
For the reasons given, the judgment must be reversed and
the cause remanded, that a new trial may be had in conform-
ity to this opinion.
Judgment reversed.
Mr. Justice Scott, Mr. Justice Sheldon, and Mr. Jus-
tice Craig, dissenting :
We concur in the reversal of the judgment, but not in the
opinion of the majority of the court.
The 2d instruction was as follows:
"If the jury find for the plaintiff, they are instructed that,
in addition to the actual damages to which the plaintiff is
entitled, the jury may give her what is called exemplary
damages, to any amount not exceeding the sum of two hun-
dred dollars."
We do not regard this, or the 1st instruction for the plain-
tiff, as justly open to the criticism, that they inform the jury
1873.] Baldwin, Je. et at. v. Sagek. 503
Syllabus.
that exemplary damages may be given, without proof of actual
damage. And if they admitted of any doubt in that respect,
it must have been fully removed by plaintiff's 9th instruction,
as follows :
"The court instructs the jury, that they can not assess any
exemplary damages, unless they first find that the plaintiff has
sustained actual damages, under the proof and instructions
of the court."
We agree that, where there is but anguish or pain of mind
suffered, and nothing more, they do not constitute a cause of
action. That was the decision in the Ohio case cited. But
where a cause of action, in other respects, is shown, we are
not prepared to say, that mental suffering, produced in con-
sequence of the intoxication of a husband or father, might
not be considered, upon the question of exemplary damages.
And so, too, upon that question, the facts mentioned in de-
fendant's 12th instruction, refused, might properly have been
taken into consideration.
John Baldwin, Je. et al.
v.
Winnie J. Sager.
1. Moetgage — what is a satisfaction of as to subsequent purchaser. Where
a junior mortgage was assigned by a deed absolute on its face, though, in
fact, as a security for the payment of money, to one who afterwards pur-
chased the equity of redemption from the mortgagor, and also purchased
the land at a sale under a senior mortgage, and then sold to a third party,
without notice of the private agreement between the assignor and assignee
of the junior mortgage, such purchaser took the absolute title, discharged
of any claim under either of the mortgages.
2. Lien — subsequent purchasers, how ajfected by. Where a party pur-
chases property upon which there is a lien, of which he has no notice,
and pays all the purchase money, he will hold it, discharged of such
lien.
504 Baldwin, Je. et al. v. Sager. [Sept. T.
ODinion of the Court.
3. Same — notice of , to purchasers, after purchase and before payment. If
a party purchases property without notice of any lien or incumbrance
thereon, but, before paying for the same, he is notified of such lien, the
same can be enforced as against him.
4. Same — where purchaser is notified of after part payment. If a party
purchase land for full value, without notice of any lien, and pays a part
of the purchase monejr, and, before paying the balance, is notified of such
lien, the same can be enforced to the extent of the unpaid purchase money,
if the notes given therefor have not been negotiated.
Appeal from the Superior Court of Cook county; the
Hon. Joseph E. Gary, Judge, presiding.
Messrs. Grant & Swift, for the appellant Baldwin.
Messrs. Hitchcock & Dupee, for the appellant Company.
Messrs. Cooper, Garnett & Packard, for the appellee.
Mr. Justice Walker delivered the opinion of the Court:
In March, 1872, appellee filed his bill to establish a mort-
gage, which had been executed by A. G. Morey and wife to
Daniel Sager, on certain real estate owned by the Chicago City
Railway Company, or that Baldwin should pay the balance
due complainant as a pledgee of the mortgage.
It appears that, in August, 1867, one George A. S. Crooker
owned the premises in question, and, at that time, executed a
trust deed to George R. Clarke, to secure two promissory
notes for $1333.32, which were payable to T. S. Dobbins.
This deed was recorded December 19, 1867. By several
mesne conveyances, the title of Crooker passed, subject to this
mortgage, to Albert G. Morey, by a deed from Marcus Walker,
dated the 20th of January, 1869, which was recorded the 3d
of February, 1869, and Morey assumed the payment of the
notes secured by the trust deed to Clarke.
On the 1st of February, 1869, Morey executed a mortgage
to Daniel Sager, for $4000, which was afterwards assigned to
complainant, and by him to appellant Baldwin, by a deed
absolute in form, which was duly recorded; and on the 8th
1873.] Baldwin, Jr. et al. v. Sager. 505
Opinion of the Court.
day of October, 1870, Morey conveyed the equity of redemp-
tion to Baldwin, and that deed was recorded on the same day.
On the 15th day of the same month, Clarke sold the premises,
under the power in the trust deed, to Baldwin. In Decem-
ber following, Baldwin conveyed to the railway company, by
a deed delivered at that time, but bearing date in the pre-
vious October.
From these facts, it appeared that Baldwin was the holder
of the legal title, absolute and free from these various mort-
gages. Such was the record, and such the apparent title
upon which all persons not being charged with other notice
could most assuredly rely; but it was claimed in the court
below, and it so held, that Sager had, in fact, only pledged
the lien he held, as second mortgagee, to Baldwin, to secure a
debt the latter held against the former; that the deed by which
he assigned it, although absolute on its face, was, in fact, only
transferred as a pledge to secure the payment of $2000 he had
borrowed of Baldwin, and that neither the sale by Clarke,
under the prior deed of trust, to Baldwin, nor his sale to the
railway company, deprived him of his right to enforce pay-
ment of the Morey mortgage; and the court below decreed
that the Morey mortgage was not satisfied, but was a subsist-
ing lien on the premises, and ordered the payment of $2214.53
in twenty days, and if not paid, that the master sell the
premises.
We have been referred to no evidence, nor have we found
any in the record, that *the railway company had any other
notice than such as the record discloses; and there can not
be the slightest doubt that, if the company had paid all
instead of but one-half of the purchase money before this
bill was filed, they would hold the title, free from all incum-
brances; but it is urged, that, inasmuch as the purchase
money was not all paid, they hold subject to any lien that is
disclosed by complainant's bill; and on this question, we are
referred to the cases of Brown v. Welch, 18 111. 343, and
Hosier v. Knox College, 32 111. 155. In the former of these
506 Baldwin, Jr. et al. v. Sager. [Sept. T.
Opinion of the Court.
cases, it was said that a subsequent purchaser must have
received a deed and paid the purchase money before he
receives notice, to be entitled to protection as a bona fide pur-
chaser; but it will be observed that the answer in that case
did not set up or claim that any portion of the purchase
money had been paid. In such a case, there can be no ques-
tion as to the rule contended for, as, to postpone such a pur-
chaser to a prior equity could not injure him in the slightest
degree. The prior equity in such a case can be enforced with-
out doing any wrong to the subsequent purchaser, as, if he
remove the incumbrance, he may set up the amount paid
against the payment of so much of the purchase money, or
he may rescind the contract and avoid the payment.
In the latter of these cases, the subsequent purchaser took
with notice from the record, and, although he executed his
note for the purchase money, it was with notice, and there
was no right to invoke the protection of a court of equity.
He purchased and gave his note in his own folly, unless he
expected to redeem from the prior mortgage; but in this case,
the railway company, before there can be any pretense of
notice to them of appellee's claim, had received a deed of
conveyance for the premises; had paid $2860, being one-half
of the purchase money, and had given their negotiable notes
for the balance. This, then, presents a different case from
either of those to which reference has been made.
The question is, shall appellee be permitted to make a
transfer of his mortgage, absolute and unconditional in form,
which is recorded and relied upon by a purchaser, as extin-
guishing his claim and lien upon the land — be permitted to
subsequently set up a secret understanding that his transfer
was only a pledge — and thus deprive the purchaser of his
payment on the purchase? And may he thus assert his rights,
against the purchaser, for the balance, although he may have
given his negotiable notes, which may have been assigned, and
the purchaser be compelled to pay them, and thus lose both
the purchase money and the land ? The English cases seem
1873.] Baldwin, Jr. et al. v. Sagee. 507
Opinion of the Court.
to hold that he may, but in this country the current of the
authorities does not hold the rule in so broad a sense. The
doctrine seems to be well settled that, although the purchase
money may not be paid at the time the vendee receives a con-
veyance, still it will be sufficient if it be paid before notice.
Warner v. Winslow, 1 Sanfd. Ch. 430. But it has been re-
peatedly held that payment of a part of the purchase money,
although not sufficient to invest the purchaser with the char-
acter of a bona fide purchaser as regards the estate purchased,
does give him the right to invoke the aid of the equitable
principle, that he who claims equity must do equity, and
require reimbursement, from the rightful owner, of all moneys
paid before notice, as a condition to granting the first pur-
chaser or incumbrancer relief. Yost v. Martin, 3 Sera:. & R.
423; Bellas v. McCarthey, 10 Watts, 67; Juvenal v. Jackson, 2
Harris, 519; Urich v. Beek, ib. 636; 4 ib. 499. The same
court also holds that the expenditure of money on the premi-
ses, in their improvement by the purchaser, when no portion
of the purchase money has been paid, if done before notice,
entitles the vendee to the same rights. Boggs v. Varner, 6
W. & S. 469. And it seems that protection will be given, in
some form, for ail payments and improvements made before
notice, although payment in full may be required to consti-
tute a good bar by plea to the bill. Fa7*mersy Loan and Trust
Company v. Maltby, 8 Paige, 361 ; Everts v. Agnes, 4 Wiscon.
343; Flaggy. Mann, 2 Sumn. 486. Notes or bills on third
persons, paid, are equivalent, in most cases, to actual pay-
ment.
In the case of Freeman v. Deming, 3 Sandf. Ch. 327, it was
held that where notes are given by the purchaser, and they
are negotiated before notice, so as to render the vendee liable
at all events, that will be treated as a payment. Whilst cases
are found, in the courts of this country, which hold that,
unless all the purchase money is paid before notice, equity
will not afford any protection, we think the former cases
announce a rule more consonant with the principles of equity.
508 Baldwin, Jr. et at. v. Sager. [Sept. T.
Opinion of the Court.
Why should a person execute a deed apparently absolute, and
thus induce others, on the faith of the deed, to purchase,
pay a portion of the money, and then come in and claim a
secret lien or trust in the premises, and override his claim,
and leave the purchaser to get his money back as best he can ?
This rule was applied in the case of Roberts v. Opp, 56 111. 34.
In that case, the complainant, although held to have an
interest in the land, was required to take her interest in the
unpaid notes given for the purchase money, and not her share
in the land, although a trust was established in the vendor,
and the vendee had not paid the purchase money.
Had ifc appeared that the notes given by the railway com-
pany had been actually negotiated before notice, then we
should have been inclined to hold that appellee would have
been precluded from asserting any claim to a lien on the land.
In such a case, his only remedy would have been against
Baldwin individually.
It is, however, insisted, that the evidence fails to establish
any lien in favor of appellee. It is not contested that the
assignment of the mortgage on Morey to Baldwin was more
than a security for the payment of $2000, loaned by the lat-
ter to appellee. It, then, devolved upon Baldwin to show
that it subsequently became absolute, in fact as well as in
form. This he attempted to do by evidence that appellee
wrote him, before the sale, if he would surrender his note,
that he would give up the Morey mortgage, and he could
make his money out of the land; and Baldwin claims that
he sent his note, in compliance with this request; but appel-
lee denies this in the most emphatic terms. On this question,
the evidence is irreconcilably conflicting; but the court be-
low held that Baldwin had failed to show this fact, and, after
a careful examination of the testimony, we are not prepared
to hold that he erred. It is true, that the question is not free
from doubt, but that doubt should incline the chancellor to
disallow the defense. Baldwin, to recover, was bound to
establish this defense by a preponderance of evidence, and we
1873.] Baldwin, Je. et at. v. Sager. 509
Opinion of the Court.
are unable to say that he has. It is true, that the destruction
of the letter and other papers by the fire of the 9th of Octo-
ber, 1871, has rendered it more difficult to make such proof,
but that is his misfortune, and we are unable to violate the
rules of evidence to relieve against its effects.
Inasmuch as appellee invested Baldwin with apparent abso-
lute title, and the railroad company became the purchasers
without notice, and had paid half of the purchase money,
and received a deed for the land before notice, they should
not be disturbed in that purchase, if appellee can otherwise
obtain his rights. It is not disputed that the railroad com-
pany contracted to pay the full value of the land, and hence,
that sale should not be disturbed.
Out of the proceeds of that sale, Baldwin should be per-
mitted to retain, first, the amount due on the Dobbins notes;
next, the amount due on the $2000 due him for money loaned
appellee; and then the remainder of the Morey mortgage, after
deducting therefrom the amount due Baldwin on his loans to
appellee, should be paid out of the balance of the purchase
money due from the railroad company, if there shall be a
sufficient sum therefor, and if more than enough, then the
balance be retained by Baldwin. This disposition of the
fund proceeds upon the ground that Baldwin has not trans-
ferred the notes of the railroad company to a bona fide pur-
chaser. If, however, he has, then the decree should be against
him personally for appellee's portion of the purchase money
owing by the railroad company.
The decree of the court below is reversed and the cause
remanded.
Decree reversed.
510 Ogden v. Larrabee, Admr. [Sept. T.
Opinion of the Court.
William B. Ogden
v.
William M. Larrabee, Admr.
1. Second appeal or writ op error — what it brings before the court
for consideration. Where a case has been heard in the circuit court, re-
viewed in the Supreme Court, and remanded with directions as to the
decree that shall he entered, a party can not, on a subsequent appeal,
assign for error any cause that accrued prior to the former decision of
the Supreme Court.
2. It will be presumed, where a case is determined in the Supreme
Court upon its merits, and the errors assigned, that the appellant or plain-
tiff in error has no further objection to urge against the record, and that,
if any errors exist which are not so assigned, they are waived, and he
will not be permitted to assign such errors on a second appeal. He will
not be permitted to have his cause heard partly at one time and the resi-
due at another.
Appeal from the Superior Court of Cook county ; the Hon.
John A. Jameson, Judge, presiding.
Messrs. McCagg, Fuller & Culver, for the appellant.
Mr. Josiah H. Bisseel, for the appellee.
Mr. Justice Scott delivered the opinion of the Court :
This bill was filed by appellee, as administrator of James
Spence, deceased, and the object was, to charge appellant with
the proceeds of certain notes secured by mortgage, and some
other collaterals which, it is alleged, Spence had assigned to
him, as agent of Butler, in 1837, to secure the payment of
the purchase money of a tract of land in Chicago, sold by
Butler to Spence in 1836, one half of which was subsequently
conveyed to Mark Skinner, at the request and for the benefit
of Spence. On the hearing, the court found appellant held
the funds in trust for the estate of Spence, and, accordingly,
decreed that an account should be taken. For this purpose,
the cause was referred to the master, to take and state an
1873.] Ogden v. Larrabee, Admr. 511
Opinion of the Court.
account, who reported there was due the sum of $32,848.48.
To this report exceptions were filed by appellant, which were
overruled by the court, and a final decree entered, from which
an appeal was taken to this court at the September term, 1870.
57 III. 389.
The cause was reversed for an error in the mode of stating
the account, and was remanded, with specific directions as to
the decree that should be entered. We then said, the court
below adopted the true rule for stating the account between
the parties, and it was approved in every particular except
one, viz : the court ought to have directed the master to charge
the estate with one-half the original purchase money of the
land contracted to Spence, on account of the one-half con-
veyed to Mark Skinner. After directing this single correc-
tion in the master's report to be made, the court was required
to decree, in all respects, as in its former decree.
At the next succeeding term, a rehearing was asked for and
allowed, on one point only, that the payments made on his
contract by Spence ought not to be wholly applied on one-
half the land conveyed to Skinner, but ought to be divided,
so as to apply one-half of them on that, and the other half
on that part of the land which was retained by Butler after
forfeiture of the contract. No other ground for a rehearing
was suggested. In view of the fact the payments that were
made by Spence, in his lifetime, were made on the whole lot,
the directions given in the original opinion were then modi-
fied, and the Superior Court required to direct the master, in
making the computation, to charge appellant with one-half
of the payments made by Spence, in his lifetime, on the con-
tract, and to regard the other half of such payments as lost
to the estate, according to the terms of the agreement.
On the remandment of the cause, it was again referred to
the master, who stated the account between the parties in
accordance with the directions given. Exceptions were
taken to the report, but were overruled by the court, and a
final decree rendered for the amount found due.
512 Ogden^. Larrabee, Admr. [Sept. T.
Opinion of the Court.
The cause is again brought to this court on appeal; and the
only error to which our attention is called is, the decision of
the court overruling a single exception to the master's report.
The item in the master's report, of which complaint is
made, is, that he credited appellant with taxes paid prior to
December, 1841, $37.78, when he should have allowed him
credit for the sum of $136.06.
The error is said to have occurred in this way : The master
took the item of $37.78 from a statement made by Mr.
McCagg, from the books of appellant. The account was
made up from his books when appellant was absent, and, when
he came upon the stand as a witness, he states that there was
a mistake in the account as rendered by Mr. McCagg, and
gives the actual amount of the taxes and expenses as he finds
them to be, prior to that date.
The mistake insisted upon occurred in the first report made
by the master, yet it does not appear that it was excepted to,
or the attention of this court called to it as a ground of error,
when the cause was first before us.
In the first opinion rendered, the Superior Court, with a
single exception, was directed to "decree in all respects as in
its former decree," and, although counsel knew of the fact,
which they now allege as error, the attention of this court
was not called to it, neither on the original nor the rehear-
ing.
Notwithstanding the former decision is conceded to be con-
clusive as to the law of the case, it is insisted the alleged
error may be considered, for the reason it was not assigned
for error on the former hearing, and the court expressed no
opinion as to the correctness of this particular item.
It may be, it would subserve the ends of justice, in this
instance, if we could consider the suggestion of error, but it
would certainly introduce a pernicious practice not hereto-
fore adopted in this State. There ought to be an end to all
litigation, and if the doctrine insisted upon should be adopted,
and the parties permitted to assign successive errors on the
1873.] Ogden v. Laeeabee, Adme. 513
Opinion of the Court.
same record, in complicated litigation like this, no conclusive
decision could be rendered in the lifetime of the parties inter-
ested. The general rule on this subject is, that, where a
cause has been heard in the circuit court, reviewed in the
Supreme Court, and has been remanded with directions as to
the decree that shall be entered, a party can not, on a subse-
quent appeal, assign for error any cause that accrued prior to
the former decision. It is for the very satisfactory reason, as
stated in Semple v. Anderson, 4 Gilm. 546, "it will be presumed,
where a party sues out a writ of error and brings his case
here for adjudication, and the same is determined upon the
merits and errors assigned, that he has no further objection
to urge against the record, and that if errors exist, which are
not so assigned, they are waived."
The error complained of existed in the former record.
The party had an opportunity then to assign it, and direct
the attention of the court to it, but, having failed to do so,
he ought to be estopped, upon every principle of justice, from
alleging, at any future period, error in the same record. Had
error intervened prior to the former adjudication, it was his
duty to assign it, otherwise he will be deemed to have waived
it forever. He will not be permitted to have his cause heard
partly at one time and the residue at another.
In the case of The Santa Maria, 10 Wheaton, 431, it was
held, that, after a case had been once remanded, an appeal
brings up only the subsequent proceedings, but the rights
growing out of and involved in those subsequent proceedings,
may, in part, depend upon proceedings prior to the mandate,
and in such cases the court may look into them.
In the case of Booth v. The Commonwealth, 7 Mete. 285, the
writ of error was quashed, on the ground it appeared a former
writ of error had been brought on the same judgment, and,
upon plea of in nullo est erratum, the judgment was affirmed.
In every case to which our attention has been directed,
where a second writ of error or appeal has been allowed, it
33— 70th III.
514 Kingsbury v. Buckner et aL [Sept. T.
Syllabus.
was where the merits of the entire case had not been decided,
or for something occurring after the mandate.
In the case of Duval v. Farmers' Bank, 9 Gill & Johns. 31,
cited by counsel, the court say, that, in the former judgment,
they expressly waive the examination of the law involved in
the exceptions taken, and therefore the questions are open
for consideration in the latter appeal. A second appeal was
entertained in Bates v. Kemp, 13 Iowa, 223, upon a similar
principle.
In Price v. Price's Administrators, 23 Ala. 609, the court
held the decision on the same record, in 5 Ala. 578, as con-
clusive of the law of the case in which it was made, and only
considered the questions left open on the record before them.
Had the question of the amount of taxes and expenses
paid by appellant prior to December, 1841, been waived in
the former judgment, or had it arisen since the mandate, the
cases cited would be authorities in point, but such is not the
fact, and both reason and authority are against the propriety
of considering the question upon this second appeal.
The decree of the Superior Court is in accordance with the
directions given, and must be affirmed.
Decree affirmed.
Heney W. Kingsbury, by his Guardian,
Mary K. Buckner et al.
1. Former adjudication — decision of this court conclusive of second
appeal.
2. Same — not conclusive as to points not decided. On bill to declare a
trust, and for partition of land, a decision of this court establishing the
trust, and remanding the cause with directions that a partition be made
according to the rights of the parties in interest, and an account be taken,
will not preclude the parties from showing that the ancestor's title was
divested under a deed of trust, given by him in his lifetime.
1873.] Kingsbury v. Buckner et ah 515
Opinion of the Court.
0
3. Redemption — acquiring title under deed of trust, -by one heir, is not
a redemption. When land is sold under a deed of trust given by a party
in his lifetime, and a stranger becomes the purchaser, and afterwards con-
veys the land to another in trust for one of the heirs of the deceased
grantor, this will not operate as a redemption from the trust deed, and
inure to the benefit of all the heirs of the grantor.
4.. Partition — where premises are incumbered, the incumbrances to be
ascertained by the court. Where partition is sought of premises on which
there are incumbrances, the court should ascertain the incumbrances by
proof, and apportion them according to the rights of the parties, and not
intrust this duty to the commissioner.
5. Same — disposition of funds belonging to the estate. Where there is
money due for insurance on account of injury to the property by fire, and
there are incumbrances on the property, on a bill for partition and an
account, the court should direct the insurance money to be applied to the
removal of all the matured incumbrances, before making any distribution
thereof.
Appeal, from the Circuit Court of Cook county; the Hon.
E. S. Williams, Judge, presiding.
Mr. Henry Crawford, and Mr. Edward S. Isham, for
the appellant.
Messrs. Goudy & Chandler, for the appellees.
Mr. Justice Thornton* delivered the opinion of the
Court :
This case was before the court at a former term. As we
shall not 2:0 behind the decision then made, it is necessarv to
understand it. The cross-bill of the Buckners, upon which
the decision was based, was for the purpose of having a trust
declared, a reconveyance of real estate, and a partition. The
court then decided that the deed from Mary K. Buckner
and husband to her brother, was not originally properly
delivered, to be effectual, but that it became operative by
the subsequent acts and declarations of the parties; that
*The original opinion in this case was delivered by Mr. Justice Thorn-
ton, as of the September term, 1872, and, at the September term, 1873, an
additional opinion was filed, upon a rehearing.
516 Kingsbury v. Buckner et al. [Sept. T.
Opinion of the Court.
there was an express trust manifested, and the decree of the
court below dismissing the bill was reversed, and the cause
remanded "with directions to dismiss the original bill abso-
lutely, and to grant the relief prayed for in the cross-bill, by
a decree establishing the equitable title in Mary K. Buckner
to her proper share in all the real estate," etc.
Every question was then settled, and became res adjudicata,
except the actual interest of Mrs. Buckner in the real estate.
This was subject to future inquiry and additional evidence.
It was directed that she should have "her proper share," and
this must be ascertained by the court below. It was not
definitely fixed and determined by the former opinion. If
her father, before his death, had alienated a portion of the
property, she could not inherit such portion, and it would
form no part of her proper share.
A labored argument has been made to prove the error of
the former decision of the court, and it is charged that fraud
and collusion were practiced, and incompetent testimony ad-
duced, to obtain it. If this were true, we can not determine
questions so grave upon ex parte affidavits. If there have
been fraud and collusion, the proper remedy would be in
chancery, and then the parties assailed could have an oppor-
tunity of making a defense; or, if the decree is directed by
the court of final resort, by an application for a rehearing.
Upon the former hearing, after full argument, this court
decided that Henry W. Kingsbury held the property conveyed
by the deed from Mrs. Buckner and husband to him, as trus-
tee; that the trust had been manifested by a writing, and that
she had an equitable title to a share in the estate. The cause
was remanded to ascertain her share, and not to determine
the trust. The latter had been established by the declaration
of this court. This appeal is prosecuted from the decree
making partition, and can bring before us no other question,
except questions incident to the order for partition. ^Ve can
not examine as to the merits of the original case, but only as
to proceedings subsequent to the decision at the former
1873.] Kingsbury v. Buckner et at. 517
Opinion of the Court.
hearing. If the course suggested and so strenuously insisted
upon by the counsel for appellant, was pursued by appellate
courts, litigation would never cease, new counsel, as in this
case, would make new arguments and present additional
points for adjudication, and the most resolute persistence would
finally settle the rights of the parties. The appellate power
of this court would then be exercised more over its own pro-
ceedings and judgments than over those of inferior courts.
The trust relation between the parties was established by
the former decision, and the court has not the power to reverse
it. We might overrule it, but this would manifest a vacilla-
tion which would destroy all respect for the court. The
proper mode would have been an application for a rehearing
in apt time, and then the suggestions now made would have
been entitled to consideration.
This is the doctrine of the courts, as definitely settled by
repeated decisions. Hallowbush v. McConnell, 12 111. 203;
Washington Bridge Company v. Stewart, 3 How. 413; Browder
v. Mo Arthur, 7 Wheaton, 58; Southard v. Russell, 16 How.
547; jRoberts v. Cooper, 20 How. 467.
After remandment of this cause by this court, the court
below rendered a decree in accordance with the mandate of
this court, and appointed commissioners to inquire as to in-
cumbrances upon the property, and to make partition.
These facts were developed, which were not in the former
record :
Julius J. B. Kingsbury, the ancestor of the parties and the
owner of the property in controversy, died intestate in 1856,
and, previous to his death, executed a deed of trust on the
land known in this record as the "Spencer tract." The note
secured was due in five years, with interest, and a power of
sale was given, in case of default in payment. The language
as to the notice to be given of the sale, was as follows: "After
having advertised such sale ten days in a daily newspaper."
In 1862, the trustee, upon the request of the holder of the
note, published a notice in the Chicago Daily Tribune, on the
518 Kingsbury v. Buckner et al. [Sept. T.
Opinion of the Court.
10th of April, that he would sell on the 21st of the same
month. The deed executed by the trustee recited that the
notice was printed for ten days consecutively, commencing on
the 10th of April. This deed was dated April 21st, 1862, but
was not acknowledged until in 1868. The grantee, Emily
Spencer, in 1864, made a deed of trust on the same premises
to Thomas Swan, upon the condition to convey the property
to Kingsbury, the appellant, upon the payment of the money
advanced. The father of appellant was killed at Antietam,
in 1862, and before the execution of this last deed.
This "Spencer tract" the court below divided between Mrs.
Buckner and the other heir. She inherited from her father,
Major Kingsbury, who died in 1856. He, in 1855, made the
deed of trust on this tract to Corydon Beck with. If, there-
fore, by the sale and deed of the trustee, the title to the
"Spencer tract" was vested in Emily Spencer, and by her con-
veyed to Swan, to secure him for money advanced, and lim-
ited in the deed to the use of appellant, upon payment, Mrs.
Buckner could not have inherited any part of this tract.
In 1855, when the deed was made to Beckwith, Buckner,
the husband of Mrs. Buckner, was the agent and attorney of
Major Kingsbury, with authority to improve the property in
Chicago, and make loans and leases, and he joined in the
deed of trust to Beckwith.
Upon the facts, now for the first time disclosed, as to the
sale of the "Spencer tract," is appellant estopped by the
former decision from any inquiry as to the ownership ? As
already remarked, upon the facts before us in the former
record we merely decided upon the relation existing between
Mrs. Buckner and the father of appellant, and, as a conse-
quence of the trust relation, that she was entitled to her
proper share in the estate of her father; and we directed
that an account be taken between her and all other persons
interested in the estate. The court below proceeded in this
investigation, and it was ascertained that the common ances-
tor had conveyed a portion of the estate in his lifetime, and,
1873.] Kingsbury v. Buckner et al. 519
Opinion of the Court.
by virtue of the deed of trust and the sale thereunder, and
the conveyance by the trustee, the title to the tract in ques-
tion had become absolute in Emily Spencer. She was the
bona fide holder of the note secured; and if the sale and
deed were regular, and in accordance with the power, she
obtained a perfect title, as against the heirs of Major Kings-
bury. No right or equity of redemption existed as against
her. The conveyance, then, by her to Swan was voluntary,
and was made at the solicitation of the friends of appellant,
to secure to him the premises, upon the payment of the
money borrowed. The conclusion is, that Swan had the title,
limited to the use of appellant. Swan was not a party to the
cross-bill of appellees, and, therefore, can not be divested of
his title by the former decision. The legal title was in him;
the equitable title was in appellant. As Swan's interest could
not be disturbed, neither could that of the cestui que trust.
But it is urged, that the sale was irregular; that two Sun-
days intervened between the day of the first insertion of the
notice, and that, as Sunday is dies non juridicus, there was
not publication for ten successive days. In the absence of
proof to the contrary, the presumption is, that the publica-
tion was made each day from the 10th to the 21st, inclusive.
Exclude the day of sale, and still the notice was published
for eleven successive days.
It is assumed that the publication was invalid, according
to the decision in the case of Scammon v. The City of Chicago,
40 111. 147. In that case, the law required the publication
for six days, and the court decided that Sunday could not be
computed as one of them, because the notice required was in
place of process, which could not be served on Sunday. In
this case, the publication was not for the purpose of bringing
a party into court. The grantor in the deed merely stipulated
for ten days' notice of the sale. This was a matter of pri-
vate arrangement between the parties, with which the law
has nothing to do. We have no right to exclude Sunday, in
the computation, when the language of the deed does not do
520 Kingsbury v. Buckner et al. [Sept. T.
Opinion of the Court.
it. We might as well say that, where a note is payable ten
days after the date, and a Sunday intervenes, it must be
excluded in determining the maturity of the note. We think
the publication was sufficient.
Again, it is contended that the transaction with Emily
Spencer operated as a redemption, and restored the title of
this tract to both heirs. In this view we can not concur.
She had obtained the absolute title, and held it for two years
prior to the conveyance to Swan for the use of appellant.
By the trustee's sale, the right of redemption was gone, and
the purchaser might have conveyed to one or both of the
heirs, or to a stranger. All equities had become merged in
the legal title. Then, when the deed was made to Swan, it
expressly excluded any interest in Mrs. Buckner, and con-
veyed the premises upon the express trust that a conveyance
should be made to appellant upon the payment of the moneys
advanced.
It seems to us that the entire transaction is a simple one.
When the trustee made the deed, in 1862, it related back to
the deed of trust made by Major Kingsbury in 1855. The
land then ceased to be trust property. Any title, equitable
or otherwise, in the brother of Mrs. Buckner was extinguished
in his lifetime. Neither he nor his son, this appellant, could
be regarded as a trustee of the property, for the entire title
had become invested in Emily Spencer, the grantor to Swan.
We are, therefore, of opinion that the title to the " Spencer
tract" is in Swan for the use of appellant, and that Mrs.
Buckner has no interest in it.
As the decree must be reversed, it is proper that some fur-
ther suggestions should be made as to the proceedings subse-
quent to the former appeal. At the commencement of the
suit, there were valuable improvements upon the property.
These have since been destroyed by fire. There were also
incumbrances, and the receiver, by the order of the court,
had borrowed money and paid for buildings upon leased
1873.] Kingsbury v. Buckner et al. 521
Opinion of the Court.
ground. Policies of insurance had also been procured by
the receiver, which he held at the time of the fire.
The court appointed commissioners to execute the decree
of partition, and directed that they take "into consideration
the quantity, quality and value of the premises and the incum-
brances thereon ; " and subsequently, upon a motion in behalf
of Mrs. Buckner, the receiver was ordered to pay to her one-
half of all which had been or might be collected from the
insurance policies.
The court should have ascertained the incumbrances by
proof submitted, and apportioned them according to the rights
and equities of the parties, and not have intrusted this import-
ant duty to the commissioners.
We directed an account to be taken, between Mrs. Buckner
and all other parties interested in the estate. If the court
was satisfied that, upon the payment of debts and the removal
of all incumbrances, she would have been entitled to the
amount ordered to be paid to her by the receiver, it may have
exercised its discretion properly in making the order, that the
receiver pay to her one-half of the moneys collected from the
policies of insurance. The proper practice, however, would
have been, to have awaited the statement of the account.
The insurance money belonged to the estate, and all out-
standing notes, bearing interest, should have been satisfied,
and the incumbrances removed, so far as they had matured,
before any division of the moneys between the parties.
The decree is reversed and the cause remanded.
Decree reversed.
This cause was heard at the September term, 1872, and a
rehearing having been granted, the following additional
opinion was delivered at the September term, 1873 :
Per Curiam : A rehearing was ordered in this cause up-
on the present appeal, not for the purpose of reconsidering
the case upon the merits, or to change, or, in any substantial
522 Kingsbury v. Buckner et al. [Sept. T.
Opinion of the Court.
sense, to modify our former decision, but to render the opin-
ion of the court more explicit, and prevent misconception of
its meaning. This seems demanded by the peculiar state of
the record, which was inadvertently overlooked, and the lan-
guage employed in the opinion, to which our attention has
been called by the application for a rehearing.
When the cause was before us upon a former occasion, the
principal questions involved were definitely settled. The
decree of the court below, dismissing both the original and
cross bills, was reversed, and the cause remanded, with direc-
tions to grant the relief prayed by Mrs. Buckner's cross-bill.
58 111. 310. In pursuance of those directions, a decree was
entered in the circuit court, November 13, 1871. This decree
established the principal rights of the parties, and the court
proceeded to carry them into effect, which involved the neces-
sity of entering three subsequent decretal orders, and on Au-
gust 2, 1872, another and final decree. This decree disposed
of a controversy arising between the parties upon proceedings
for partition, involving a claim by Mrs. Buckner to a share
in what is called the "Spencer tract," as a part of her father's
estate, and by that decree her claim was allowed, from which
an appeal was taken, on behalf of the infant, Henry W. Kings-
bury, to this court. No appeal was taken from the decree of
November 13, 1871, but appeals were taken from some of the
decretal orders intervening that and the final decree of August
2, 1872.
Upon these appeals the whole record was brought to this
court, and errors assigned, questioning the propriety of the
decree of November 13, 1871, entered in conformity with the
directions of this court, some of the intervening orders, and
the final decree of August 2, 1872. The questions raised and
attempted to be raised were all carefully considered, and the
conclusion arrived at was, that no error could be assigned
upon the first decree, entered in pursuance of the directions
of this court ; that the points made upon the intervening
orders were not well taken, but that the decree of August 2;
1873.] Treibroth v. Mann. 523
Syllabus.
1872, was erroneous, and ought to be reversed, for the reasons
given in the opinion. These views, however, are not clearly-
announced in the former opinion, and it follows also that the
directions contained in the opinion which have no relation to
the matters involved in the decree of August 2, 1872, are
wholly inappropriate, and may be considered as withdrawn
from the opinion.
The judgment which we intended to enter was, that the
several decrees and decretal orders antecedent to the final de-
cree of August 2, 1872, and upon which error was assigned,
be affirmed, but that the decree of August 2, 1872, concern-
ing Mrs. Buckner's claim in the Spencer tract, be reversed,
and the cause remanded for further proceedings in conformity
with the former opinion, as herein explained and modified,
and that each party pay half of the costs in this court.
George Freibroth
v.
Joseph Mann.
1. Mechanic's lien — decree — time for payment. Since the act of 1872,
allowing redemption from sales in mechanic's lien cases, it is no longer
necessary that the decree for the sale of the premises should give time
in which the defendant shall pay the sum found to be due.
2. Former decisions. The ground of the decisions in Link v. Archi-
tectural Iron Works, 24 111. 551, and Boioley v. James, 31 111. 298, that the
decree in a proceeding to enforce a mechanic's lien should fix a time for
the payment of the money, was that there was then no redemption from
the sale under such decree, but as redemption is now allowed, the rule in
those cases no longer obtains.
3. Default — setting aside. Where the defendant in a proceeding to
enforce a mechanic's lien, fails to answer on or before the day on which
the cause is set for trial on the docket, and his default is taken, in the
absence of sufficient cause shown it is not error to refuse to set aside the
default, either at the same, or the next succeeding term. And in such
524 Freibroth v. Mann. [Sept. T.
Opinion of the Court.
case, if the court imposes terms as a condition to opening the default, it
is no error.
4. Set-off — under what state of pleadings. In a proceeding for a me-
chanic's lien, where the defendant has failed to answer, and a default en-
tered against him, he has no right to have a distinct debt due him from
the petitioner, in nowise connected with the subject matter of the suit,
set-oft' against his indebtedness. Under such a state of pleadings a set-off
can not be allowed.
Appeal from the Superior Court of Cook county ; the Hon.
Joseph E. Gary, Judge, presiding.
This was a petition for a mechanic's lien, filed by Joseph
Mann against George Freibroth.
Mr. Thomas Shirley, for the appellant.
Mr. Henry D. P. Hosier, for the appellee.
Mr. Justice Sheldon delivered the opinion of the Court :
This was a mechanic's lien proceeding, commenced by
petition. The defendant was served with process on the
18th day of February, 1873.
The cause was set for trial on the docket of the court below
for the 6th day of June, 1873, and on the 19th day of that
month, the defendant having failed to answer, the petition
was taken for confessed against him. On the 20th of June,
the court heard testimony, and found the amount of defend-
ant's indebtedness to be $316.81, and entered a decree for
that amount, with an order for the sale of the premises for
its satisfaction. The defendant appealed.
Appellant assigns for error, that the court did not fix a
time in the decree within which defendant was required to
pay the money, citing Link v. Architectural Iron Works, 24 111.
551, and Rowley v. James, 31 111. 298. The ground of those
decisions was, that there being then no redemption from the
sale of premises under a mechanic's lien decree, a reason-
able time should be given by the decree for the payment of
1873.] Fkeibroth v. Mann. 525
Opinion of the Court.
the money. But the statute now gives the defendant the
right of redemption in such case, for a specified length of
time, (Laws 1872, p. 507,) and therefore, those decisions can
no longer have any application to decrees in mechanic's lien
proceedings, in the respect above named.
On the 28th of June, 1873, the court made an order that,
upon the condition that the defendant pay into court the
amount of the decree rendered against him, to abide the event
of the suit, within five days from that date, or before the
cause was reached, and all costs of suit accrued, he be let in
to plead.
On the 7th day of July, 1873, the first day of the July
term, the defendant moved for leave to file his answer, and
it appearing to the court that the order of June 28th had not
been complied with, the motion was denied, and the order
of June 28th was set aside.
It is assigned for error, that the court erred in setting aside
the default upon the terms imposed, and in the refusal of
leave to file an answer. It is enough to say, that no sufficient
cause was shown for setting aside the default, or filing the
answer. The lien act requires the defendant to file his
answer on or before the day on which the cause shall be set
for trial on the docket. The provision of the chancery act
in relation to filing an answer at the succeeding term, where,
upon default, a bill has been taken for confessed, if it be
held to apply to this proceeding, is, that the court may per-
mit the defendant to do so upon his showing sufficient cause.
No sufficient cause was here shown, in respect to either
application. The only reason assigned for not filing the
answer at the required time was, that the petitioner had been
informed by his counsel, and he believed the information to
be true, that he had a right to file his answer on the same
day on which the cause should be called for trial, in the reg-
ular course of the call of the calendar, and that the cause had
not yet, up to the time of the motion to set aside the default,
been so called. The language of the statute is express, that
526 Freibroth v. Mann. [Sept. T.
Opinion of the Court.
the answer shall be filed on or before the day on which the
cause shall be set for trial on the docket, which in this case
was June 6th. Not filing the answer by that time, nor up to
June 19th, was plain laches. Had the court denied abso-
lutely the motion to set aside the default, we could not have
pronounced it error. Allowing it, then, conditionally, upon
the terms prescribed, affords no just ground of complaint.
It is objected that the decree is for too much, because of
an admission to that effect, in open court, by the petitioner.
The admission claimed, arises from the statement in the bill
of exceptions, that on the argument of the motion to set aside
the default, the petitioner admitted, in open court, that he
was indebted to the defendant for 3000 bricks, amounting to
$25.50, and he offered to have that amount remitted from the
judgment, and that the defendant claimed a larger sum than
that to be deducted. So far as appears, this was a distinct
indebtedness, in nowise connected with the subject matter of
the suit, and but a claim of set-off, not admissible under the
pleadings. Derby v. Gage, 38 111. 27.
The offer to remit would seem not to have been received
with favor by the defendant. Had he insisted on it, the
remittitur would, doubtless, have been made.
We perceive no error, under the circumstances, in render-
ing the decree for the full amount of the indebtedness proved,
without deduction of the $25.50.
We do not find that the proceedings in the court below, as
they appear by the record, contain any error, and the decree
is affirmed.
Decree affirmed.
1873.] Walker et al. v. Tucker et ah 527
Syllabus.
Martltt O. Walker et al.
v.
Chauncey Txtcker et al.
1. Contract — construction of. In the construction of a contract, where
the language is ambiguous, courts uniformly endeavor to ascertain the
intention of the parties, and to give effect to that intention; but where the
language is unambiguous, although the parties may have failed to express
their real intention, there is no room for construction, and the legal effect
of the agreement must be enforced.
2. The provisions of a contract must be construed together, so that all
the words shall have some effect given them, if possible.
3. By a demise of farming lands a covenant is raised, by implication
of law, that they shall be used as such, and in the absence of express cove-
nants in reference thereto, the law also implies covenants on the part of
the lessee that no waste shall be committed ; that the land shall be farmed
in a husbandlike manner; that the soil shall not be unnecessarily ex-
hausted, by negligent or improper tillage, and that repairs shall be made.
4. Same — recitals in the preamble, effect of. Where the words in the
operative part of an instrument are of doubtful meaning, the recitals,
preceding the operative part, may be used as a test to discover the inten-
tion of the parties and fix the true meaning of the words ; but when the
words in the operative part are clear and unambiguous, they can not be
controlled by the recitals.
5. "Where the recitals do not express all that is included in the opera-
tive part of an instrument, they can not be held to be a full and clear ex-
pression of the intention of the parties.
6. Same — implied condition, failure of will excuse performance. Where
one makes a contract to do a thing which, in itself, is possible, he will
be liable for a breach of such contract, notwithstanding it was beyond his
power to perform it; but where, from the nature of the contract, it is ap-
parent the parties contracted on the basis of the continued existence of a
given person or thing, a condition is implied, that if the performance
becomes impossible, from the perishing of the person or thing, that shall
excuse the performance.
7. Where a lessee of coal mines covenants, by the terms of his lease, to
work the same, during the continuance of his lease, in a good and work-
manlike manner, he is liable for a breach of his covenant, notwithstand-
ing it may be beyond his power to perform it; but if the coal mines be-
come exhausted, that will excuse him from any further performance.
528 Walker et al v. Tucker et al [Sept, T.
Opinion of the Court.
8. Same— demise — eviction by the landlord and its effect as to him in an
action for breach of covenant on the lease, against his tenant. Where an
article of agreement, in the reciting part, referred to land described in a
lease from one Ledyard to the parties of the first part, and recited that
the parties of the first part were desirous to lease to the party of the sec-
ond part the right of mining for and excavating coal on said premises,
etc.; and in the operative part of said agreement the demise was of the
farming lands described and mentioned in said lease from Ledyard, together
with the right to mine, dig, extract and carry away coal from the said
premises described in Ledyard's lease, together with the enjoyment and occu-
pation of so much of the surface of said lands as might be necessary to
carry on the mining for coal on said premises: Held, that the right to the
farming land was as definite and certain as the right to mine for coal,
and that if the grantor in said agreement prevented the grantee from using
the farming land, it would amount to an eviction, and in an action by the
grantor against the grantee for a breach of the covenants in such agree-
ment, a plea setting up that the grantor had prevented the grantee from
using such farming lands was a good plea, and it was error to sustain a
demurrer to it.
Appeal from the Circuit Court of Cook county ; the
Hon. Lambert Tree, Judge, presiding.
Mr. John N. Jewett, and Mr. Charles T. Adams, for the
appellants.
Mr. John Van Arman, for the appellees.
Mr. Justice Scholfield delivered the opinion of the
Court :
This action is brought to recover for breaches of the cove-
nants contained in the following instrument :
"Memorandum of an agreement, made and concluded this
15th of July, A. D. 1865, by and between Chauncey Tucker
and Henry Tucker, by Thomas Brown, their attorney in fact,
and Thomas Brown, of the city of Buffalo, and State of New
York, (partners, under the name, style and firm of Tucker,
Brown & Co.) parties of the first part, and M. O. Walker,
Jas. Mullins, G. H. Cutting, Amos G. Throop and R. Mc-
Clelland, of the city of Chicago, in the State of Illinois, com-
1873.] Walker et al v. Tucker et al. 529
Opinion of the Court.
posing the Carbon Hill Coal Company, of Ohio, parties of
the second part —
"Witnesseth, That whereas the said parties of the first part
are lessees from Jonathan Ledyard, Caznovia, Madison county,
New York, of certain lands lying near the village of Pales-
tine, in the county of Columbiana and State of Ohio, which
said lands are more particularly described in a certain article
of agreement and lease, made by Ledyard to Chauncey
Tucker and Henry C. Tucker, of Buffalo, dated the 2d day
of February, 1863, and also an amendment made thereto by
the said Jonathan Ledyard, to and with the parties of the
first part, above named, bearing date the 5th day of July,
1865, both which lease and amendment thereto are to be of
record in said Columbiana county, Ohio, and to which refer-
ence is hereby made for the description of the premises herein
and hereby referred to and leased. And whereas, the said
Tucker, Brown & Co., parties of the first part, are desirous to
lease and convey to the said parties of the second part the
right of mining for and excavating coal on the said premises
during the continuance of said lease and amendment thereto,
made by said Ledyard,
"Now, therefore, in consideration of the covenants, condi-
tions, stipulations and rents to be hereinafter fulfilled, kept,
done, performed and paid by the said parties of the second
part, their executors, administrators and assigns, the said par-
ties of the first part do hereby demise and lease unto the said
parties of the second part, their executors, administrators or
assigns, the farming lands described and mentioned in the said
articles of agreement with and lease from said Ledyard, to-
gether with the right to mine, dig, extract and carry away coal
from the said premises described in Ledyard's lease and
amendment thereto, or any part thereof, together with use,
enjoyment and occupation of so much of the surface of said
lands as may be necessary to carry on or conduct the mining
for coal on said premises, or any part thereof, and also to take,
dig and extract from said premises thirty thousand tons of coal
34— 70th III.
530 Walker d at. v. Tucker et al. [Sept. T.
Opinion of the Court.
per annum, and, if possible, sixty thousand tons of coal, or
over, for and during ten years, from the 15th day of July,
1865, with the privilege of, on the part of the said parties of
the second part, to have this lease and agreement extended
eight years further, paying for the coal during said last eight
years at the rate of forty-five cents per ton ; and also that the
said parties of the second part are to have the use and enjoy-
ment of forty good cars, now at the said coal mines, and said
premises, together with all the houses, barn by the chute,
blacksmith shops and tools, and all other property and fix-
tures connected with the working of these coal mines, now on
the premises, except only the house on the hill, now occupied
by Tucker's tenant ; and also the right to have and take from
said premises all necessary timber for the use and working
of said mines, to be selected from such portion of the premi-
ses as the said parties of the first part may designate, and also
shall purchase from said parties of the first part all the live
stock on the said premises, at prices to be mutually agreed
upon by the parties hereto, and in case of disagreement, then
a disinterested third person shall fix the value thereof.
"And it is further covenanted and agreed, that the said
parties of the second part shall further have, during the fur-
ther continuance of this lease and agreement, the sole and ex-
clusive right to open and work the vein of cannel coal on said
premises, during the continuance of this lease, at fifteen cents
per ton, and to have the privilege of erecting buildings for stor-
age and manufacturing purposes, joining said mines ; and that,
in case of the rebuilding of the trestle-work on said premises,
or a strike of the miners for more than two months, then the
time so used in rebuilding said trestle-work, or in the strike
of the miners, shall be deducted from this lease, and the same
shall be extended for an equal period" thereafter.
"And the said parties of the first part do further hereby
covenant and agree to and with the said parties of the second
part, that they have the lawful right to make this lease ; that
said leasehold premises and said personal property are now
1873.] Walker et al. v. Tucker et al. 531
Opinion of the Court.
free and clear from all incumbrances, rents or liens of every
name, nature and kind, and that they will forever warrant
and defend the quiet and peaceable possession of the said par-
ties of the second part during the continuance of this lease.
And the parties of the first part agree to perform all the cove-
nants and agreements by them to be kept and performed in
and by said agreement with and lease from said Ledyard, and
fully uphold the estate of said parties of the first part herein,
under said lease from said Ledyard.
"And the said parties of the second part do hereby covenant
and agree to and with the said parties of the first part, their
executors, administrators and assigns, to work the said coal
mine, during the continuance of this lease and agreement, in a
good and workmanlike manner; to take the necessary timber
therefor from such portions of the premises only as the said
parties of the first part shall designate ; to pay the said par-
ties of the first part, for all coal so taken out during the first ten
years, the sum of thirty-five cents per ton, and for cannel coal
fifteen cents per ton ; payments to be made monthly, at the
Bank of North America, in New York, with current rate of
exchange, not exceeding one-fourth of one per cent. ; and
for the remaining eight years at forty-five cents per ton, and
fifteen cents for cannel coal ; and also will return to the said
parties of the first part, at the termination of this lease, the
forty cars, and also all the barns, shops, tools, and other per-
sonal property on said premises, in the same good order and
condition as they are received by them, ordinary wear and
tear or inevitable accident excepted ; and that they will pur-
chase all the live stock on said premises at prices to be agreed
upon between the parties hereto, and in case they can not
agree as to their price and value, then they will agree to select
some disinterested third person to fix and appraise the value
thereof."
Appellants claim that, by the terms of this instrument, they
are entitled to the possession and use of the farming lands, in
addition to the right to mine for coal, during the term. The
532 Walker et al. v. Tucker et al. [Sept. T.
Opinion of the Court.
court below held otherwise, and this presents the first ques-
tion requiring our attention.
In the construction of a contract, where the language is
ambiguous, courts uniformly endeavor to ascertain the inten-
tion of the parties and to give effect to that intention ; but
where the language is unambiguous, although the parties may
have failed to express their real intention, there is no room
for construction, and the legal effect of the agreement must
be enforced. Benjamin v. McConnell, 4 Gilm. 536 ; Smith v.
Brown, 5 id. 309; Crabtree v. Hagenbaugh, 25 111. 232.
The language here employed to describe what is demised
is plain and easily understood, and, taken by itself, is free
from any ambiguity. It is: "the farming lands described and
mentioned in the said articles of agreement with and lease
from said Ledyard, together with the right to mine, dig, extract
and carry away coal from the said premises described in Led-
yard's lease and amendment thereto, or any part thereof,, to-
gether with use, enjoyment and occupation of so much of the sur-
face of said lands as may be necessary to carry on or conduct
the mining for coal on said premises," etc.
The right to the farming lands thus appears to be as defi-
nite and certain as the right to mine for coal, nor does it
appear that it was granted as a mere incident or accessory to
that right, for the right to mine for coal is expressly declared
to be together with" — that is, in addition to the demise of
the farming lands, and the right to such incidental use and
occupation of the surface as may be necessary for the purposes
of mining is conferred by an additional distinct clause.
It is true, in construing an instrument of this character, it
must be considered with reference to its object and the whole
of its terms ; still, when, by the use of general words, the in-
tention is clearly and unequivocally expressed, the court is
bound by it, however capricious it maybe, unless it be plainly
controlled by other parts of the instrument. 1 Chitty on
Conts. (11 Am. Ed.) 122.
1873.] Walker et al. v. Tucker et al. 533
Opinion of the Court.
The circumstance that no separate rent is stipulated to be
paid for the use of the farming lands by appellants, while
appellees were required, as is argued, to pay to Ledyard $500
per annum for their use, proves nothing. The $500 required
to be paid by appellees to Ledyard was not for the use of the
farming lands alone, but also for the buildings and fixtures
thereon, a portion of which, at least, it is admitted are de-
mised to appellants by this instrument, whether the farming
lands are or not. Appellees, too, by that lease, are authorized
to build certain houses for the use of miners, repaying them-
selves therefor by certain coal rents, and are required to pay
as rent, for the use of such houses, at the rate often per cent
per annum on cost; yet there is no corresponding provision
in this instrument, either in reference to the building of such
houses or the payment of rent for such as may have been built
pursuant to this stipulation. Appellees are only required to
pay Ledyard ten cents per ton for coal, for which, by this in-
strument, appellants are required to pay appellees forty-five
cents per ton. This margin certainly affords an adequate
consideration for the rent of the farming lands and the use
of the buildings ; and from the language of the instrument it
is clear, beyond doubt, that the forty-five cents per ton to be
paid on the coal was not understood as being compensation
merely for the privilege to mine for coal, for it is expressly
said, "that, in consideration of the covenants, conditions,
stipulations and rents, to be hereinafter fulfilled, kept, done,
performed and paid by the said parties of the second part, etc.,
the said parties of the first part do hereby demise and lease
unto the said parties of the second part," etc., the "farming
lands," etc. It is an entire, indivisible contract, as much so
as is the sale of a farm with the crops, farming implements
and live stock thereon, for a specified sum of money for the
whole.
Nor are we able to perceive any special significance in the
fact that there are no covenants with regard to the care and
cultivation of the farming lands. By the demise of the farm-
534 "Walker et al. v. Tucker et at. [Sept. T.
Opinion of the Court.
ing lands, a covenant is raised, by implication of law, that
they shall be used as such (Piatt on Covenants, 55; DeForest
v. Byrne, 1 Hilton, 44); and, in the absence of express cove-
nants in reference thereto, the law also implies covenants, on
the part of the lessee, that no waste shall be committed; that
the lands shall be farmed in a husbandlike manner; that the
soil shall not be unnecessarily exhausted by negligent or
improper tillage, and that repairs shall be made. Taylor's
Landlord and Tenant, sec. 344.
The performance of these covenants would seem to suffi-
ciently protect appellees against liability to Ledyard, on ac-
count of the farming lands, except as to the stipulated rent;
and there is, therefore, nothing improbable in supposing they
apprehended no necessity for special covenants in these re-
spects.
We are unable to discover why it should be presumed that
appellants were less desirous of having the use of the farm-
ing lands, in connection with the right to mine for coal, than
appellees were, when they obtained their lease from Ledyard.
In both the lease from Ledyard to appellees and that from
appellees to appellants, the paramount object is undoubtedly
the right to mine for coal; yet it may also have been desirable
to the lessees to have, at the same time, the use of the farm-
ing lands. This would avoid all possible conflict that might
otherwise arise between the lessees of the different rights;
and we are, moreover, unable to say, from any information
with which we have been favored on the subject, that the use
of the farming lands might not, in other respects, contribute
materially to the convenience and profit of the lessees, while
conducting their mining operations. It seems, at least, quite
as unreasonable, under the circumstances, to suppose that
appellees should have desired to retain, as that appellants
should have wished to acquire this right.
It is also insisted, that the fact that appellees reserve the
right to direct from what portion of the premises the appel-
lants should take wood during the term, shows that it was
1873.] "Walker el al. v. Tucker et al. 535
Opinion of the Court.
not understood that they had parted with their control over
the farming lands. This inference is by no means necessary.
In the lease from Ledyard to appellees, it is provided,
" timber maybe cut on the farm for mining uses, and for
necessary firewood, and repairs and improvements on the
premises, but the party of the first part may direct from what
place it shall be taken." To enable appellees, therefore, to
comply with this, it was indispensable that they retain the
right to direct from what part of the premises appellants
should take wood during the term.
A further objection urged is, that if the right to the use
and occupation of the farming lands was granted to appel-
lants, then all the interest appellees had in the premises was
gone ; and that appellees having retained no reversionary
interest in the premises, this, instead of having been a sub-
letting, would have been an assignment of appellees' term,
but that the language used shows that it was not the inten-
tion of the parties to assign an unexpired term, but merely
to sub-let an interest in the term which appellees held, and
the understanding must, therefore, have been that appellees
still retained the farming lands.
This objection is not well founded. It is not pretended
that the lease by appellees to appellants covered the entire
interest or estate leased by Ledyard to appellees. The house
occupied by Tucker's tenant is expressly reserved by appel-
lees. Besides this, appellees reserve the right to direct from
what part of the premises wood shall be cut, and appellants
are required, at the expiration of the term, to return to appel-
lees " the forty cars, and also the barns, shops, tools and other
personal property on said premises," etc.
If, however, we were to concede that the transfer by a les-
see of the unexpired term of a part of the premises held by
him constitutes an assignment, instead of a sub-letting, the
principle, when applied to the facts before us, does not sus-
tain the position contended for. The whole of the unexpired
term for mining is admitted to be transferred; and it is not,
536 Walker et al. v. Tucker et al. [Sept. T.
Opinion of the Court.
nor can it be claimed, that the right to the occupation and use
of the farming lands is a reversionary right, to take effect only
upon the expiration of the term for mining. It exists in pre-
sent!, and is totally disconnected from the right to mine.
But it is finally claimed, that it is conclusively shown, by
the recitals preceding the operative part of the instrument,
that it was only the intention of the parties to convey the
right to mine for coal. It is true, this is the only purpose
therein expressed; yet it is equally true, that this falls short
of expressing all that was in fact conveyed. By the operative
part of the instrument, as has been seen, it is expressly said
that there is demised and leased "the use and enjoyment of
forty good cars, now at the said coal mines, together with all
the houses, barn by the chute, blacksmith shops and tools, and
all other property and fixtures connected with the working
of these coal mines ; " and the appellants are also thereby
obligated to purchase of appellees "all the live stock on the
said premises/' etc. It is not pretended that these words
are inoperative, and that appellants acquired through them
nothing but the right to mine for coal ; nor can it be said
that this property would have passed to appellants, as an
incident to the right to mine for coal, had the language
quoted not been used. Unquestionably this property was
deemed valuable and important in connection with working
the mines, nevertheless it was not indispensable. The mines
might have been worked without it. Even if property of
this kind had been indispensable to successfully working the
mines, still this particular property could not have been, for
it is evident, from the description, that its place could have
been supplied from other sources.
Inasmuch, then, as the recitals do not express all that is
included in the operative part of the instrument, it is impos-
sible that they should be held to be a full and clear expres-
sion of the intentions of the parties. The omission of the
farming; lands can be no more significant than the omission
of the blacksmith shops and tools, and live stock.
1873.] Walker et al. v. Tucker et al. 537
Opinion of the Court.
The rule of law applicable is, where the words in the opera-
tive part of an instrument are of doubtful meaning, the reci-
tals may be used as a test to discover the intention of the
parties, and fix the true meaning of those words ; but where
the words in the operative part of the instrument are clear
and unambiguous, they can not be controlled by the recitals.
1 Chitty on Conts. (11 Am. Ed.) 120-1 ; Walsh v. Trevanion,
15 Q. B. 7.33 (69 E. C. L. 733).
We do not perceive any necessary repugnancy between the
provision granting the farming lands and the one granting
the use, enjoyment and occupation of so much of the surface
of the lands, in which the right to mine is granted, as " shall
be necessary to carry on or conduct the mining for coal on
said premises," etc. The former does not include the latter.
They must be construed together, so that all the words shall
have some effect given to them if possible. It would seem to
be obvious, then, that the intention was, that the use of the
farming lands should be limited by the right to use the sur-
face of so much of them as should be necessary to carry on
or conduct the mining for coal.
If the whole surface of the farming lands had been abso-
lutely and unconditionally granted, to be used for carrying on
and conducting mining for coal, the objection might have
been tenable ; but in that event, appellees would have had no
more right to withhold the possession of the farming lands
from appellants than if they had been conveyed as farming
lands, for their possession Avould have been as essential to the
enjoyment of the right in the one case as in the other.
We do not, upon the whole, feel authorized to place any
other construction upon the operative words of this instru-
ment than what, to our apprehension, they plainly and une-
quivocally import. We are not to presume that unambiguous
and appropriate language, to express one thing, was used to
express something entirely different, or nothing at all. If it
be true that this language was inserted by inadvertence or
through misapprehension, and it does not express the real
538 Walker et al. v. Tucker et al. [Sept. T.
Opinion of the Court.
intention of the parties, the remedy is in equity, by bill to
reform the instrument. It can not be reformed in this pro-
ceeding.
We can not concur in the construction given by the circuit
court, but must hold that the right to the possession and use
of the farming lands is given to appellants, in addition to the
right to mine for coal.
The 2d, 3d, 4th and 5th pleas of appellants were as fol-
lows :
" 2. Said defendants say actio non, etc., because they say
plaintiffs, after the making of the said demise in the said dec-
laration mentioned, and before the happening of any of the
supposed breaches of covenant in declaration assigned, to-wit,
on July 15, 1865, at, to-wit, the county and State aforesaid,
with force and arms, etc., wrongfully and unlawfully withheld
from possession of said defendants and Mullins, and Cutting,
deceased, the surface of the farming lands parcel of the said
demised premises in declaration alleged to have been demised,
and refused to let defendants and Mullins and Cutting into
their possession thereof, and have from thence hitherto, though
often requested to deliver up to them the possession thereof,
withheld from them the possession of the surface of the farm-
ing lands parcel, etc., and have refused to let them into the
possession thereof, etc.
" 3. Said defendants say actio non, etc., because they say
plaintiffs, after the making of demise in declaration men-
tioned, and before the happening of any of the supposed
breaches assigned, to-wit, on July 15, 1865, at county and
State aforesaid, with force and arms, etc., entered into and
upon the surface of the said demised premises in the said
declaration alleged to have been demised, in and upon the
possession of defendants and Mullins and Cutting, and ejected,
expelled, put out, evicted and amoved, and kept them so
ejected, etc., from the possession thereof from thence hitherto,
etc.
1873.] Walker et al. v. Tucker et al 539
Op.inion of the Court,
"4. Said defendants say actio non, etc., because they say
that plaintiffs, after the making of said demise, and before any
alleged breaches, on, to-wit, July 15, 1865, at county and
State aforesaid, with force and arms, etc., wrongfully and
unlawfully withheld from said defendants and Mullins and
Cutting a large portion of said demised premises, to-wit, five
hundred acres of the land in the articles of agreement de-
mised, and refused to let them into possession thereof, and
from thence hitherto, although often requested, etc., wrong-
fully and unlawfully withheld from them said large portion
of said demised premises, to-wit, five hundred acres of the
land in said articles of agreement demised, and have refused
to let them into possession thereof, etc.
"5. Said defendants say actio non, etc., because they say
that plaintiffs, after making of said demise in declaration
mentioned, on, to-wit, July 15, 1865, at, to-wit, county and
State aforesaid, with force and arms, etc., wrongfully and
unlawfully withheld from possession of defendants and Mul-
lins and Cutting a large portion of demised premises, to-wit,
five hundred acres of the land in said articles of agreement
demised, and refused to let them into the possession thereof,
and have from thence hitherto, with force and arms, wrong-
fully, etc., withheld from the possession thereof, and refused
to let into the possession thereof, though often requested, etc.,
said defendants and Mullins and Cutting: and said defend-
ants aver that annual rental value of that portion of the
demised premises so withheld as aforesaid was and is the
sum of, to-wit, $50,000, amounting, from July 15, 1865, to
commencement of this suit, to, to-wit, $350,000, in which said
sum plaintiffs were, at the time of commencement of this
suit, and still are, indebted to defendants and Mullins, sur-
vivors of Cutting, for the use and occupation of the portion
of the demised premises so withheld as aforesaid, which sum
exceeds the damages sustained by plaintiffs for supposed
breaches of covenant assigned, and said defendants offer to
set off, etc."
540 Walker et al. v. Tucker et at. [Sept. T.
Opinion of the Court.
The court below sustained demurrers to each of these
pleas.
Construing the instrument upon which suit is brought, as
we do, as conveying the farming lands connected with the
demised premises to appellants during the entire term, it is
impossible to sustain this ruling.
In Smith et ux. v. Wise & Co. 58 111. 141, suit was brought
to recover the amount of monthly rent claimed to be due for
certain premises which had been leased by the plaintiffs to
the defendants. The defense was, that, before the expiration
of the term for which the premises were leased, the plaintiffs
had, without the consent of the defendants, taken possession
of a large part of them, thereby virtually evicting them.
The evidence tended to establish that fact, and the court gave
to the jury, among others, the following instructions:
"The principle upon which a tenant is required to pay rent,
is the beneficial enjoyment of the premises, unmolested in any
way by the landlord; and if the jury believe, from the evi-
dence in this suit, that the plaintiff took possession of any
part of the premises leased by her to the defendants, against
their consent, then, in law, it is an eviction, and releases the
defendants from the payment of any more rent, and they will
find for the defendants."
"Although the jury may believe, from the evidence, that
the defendants have never been disturbed in or evicted from
the main building on the leased premises, and that they have
had the use and enjoyment of the same, still, if they further
believe, from the evidence, that the plaintiff has taken pos-
session of any material part of said demised premises, with-
out the consent of the defendants, then the law is, it is an
eviction, and the defendants are not bound to pay any rent
for the part of the said premises they used and occupied, and
the jury will find for the defendants."
These instructions were held to be correct, and in harmony
with the previous decisions of this court.
1873.] Walker et al. v. Tucker et al. 541
Opinion of the Court.
Subsequently, in Hayner et al. v. Smith et al. 63 111. 473, it
was said, that, on further reflection and a closer examination
of the authorities, the instructions above quoted required
some modification, and it is then added : "As was said by
the Court of Common Pleas, by Jervis, Lord Chief Justice,
in Upton v. Townsend, 84 Eng. C. L. 30, and Same v. Green-
less, ib., it is extremely difficult, at the present day, to define,
with technical accuracy, what is an eviction. The word
'eviction' was formerly used to denote an expulsion by the
operation of a title paramount, and by process of law. But
that sort of an eviction is not necessary to constitute a sus-
pension of the rent, because it is now well settled, if the ten-
ant loses the benefit of the enjoyment of any portion of the
demised premises by the act of the landlord, the rent is
thereby suspended. The term ' eviction' is now popularly
applied to every class of expulsion or amotion." This emi-
nent judge further says: "I think it may now be taken to
mean this: not a mere trespass and nothing more, but some-
thing of a grave and permanent character, done by the land-
lord with the intention of depriving the tenant of the
enjoyment of the demised premises." It is also further added,
quoting from Williams, Justice, in the same case in which
the opinion quoted from Jervis was given, "There clearly
are some acts of interference by the landlord with the ten-
ant's enjoyment of the premises, which do not amount to an
eviction, but which may be either acts of trespass or eviction,
according to the intention with which they were done. If
those acts amount to a clear indication of intention on the
landlord's part that the tenant shall no longer continue to
hold the premises, they would constitute an eviction." And
the court below was directed to instruct the jury, upon the
further trial of the case, in conformity with these views.
The gist of the defense presented by these pleas is, that the
tenants were, by the wilful and tortious act of the landlords,
deprived of the use of a part of the premises from the com-
mencement of the term. There is no room for doubt as to
542 Walkek et al. v. Tucker et al. [Sept. T.
Opinion of the Court.
the character of the act or the intent of the landlords. The
facts alleged are clearly within the principles announced in
Hayner et al. v. Smith et al. siqjra, and the court below erred
in sustaining the demurrers.
The next point urged by appellants is, that the court below
erred in sustaining the demurrer to their 16th plea. The
defense attempted to be set up by that plea is in answer to
the 6th breach of covenant alleged in the declaration. The
substance of that breach is, that appellants, on the loth day
of September, 1871, suspended their mining operations upon
the demised premises, and abandoned the working of the
mines, etc.
The plea alleges that, "on the said 15th day of September,
1871, the mines became and were wholly exhausted and inca-
pable of yielding, when worked in a good and workmanlike
manner, and with reasonable skill, care, diligence and energy,
sufficient coal to pay for working said mines," etc. If the
plea had stopped short, after alleging that the mines became
and were wholly exhausted, it would have been good, but the
subsequent qualification shows that these words do not mean
exhausted of coal, but only exhausted of such coal as was
capable of yielding, "when worked in a good and workman-
like manner, and with reasonable skill, care, diligence and
energy, sufficient coal to pay for working said mines." This
might be, and yet the most valuable portion of the mine re-
main untouched. It might be the result of the peculiar state
of the market, and in nowise attributable to the difficulties
to be encountered in mining; but, from whatever cause the
result, it is a sufficient answer, that the courts must enforce
contracts as the parties make them. They can not superadd
conditions or restrictions which the parties have not them-
selves thought fit to impose, in making their contract. There
is nothing in this instrument which authorizes a suspension
or abandonment of mining because it has become unprofitable.
As the case must be reversed for the error in sustaining
the demurrer to the 2d, 3d, 4th and 5th pleas of the appel-
1873.] Walker et al. v. Tucker et al. 543
Opinion of the Court.
lants, it is unnecessary to express any opinion as to the weight
or preponderance of the evidence; and, so far as the questions
arising upon the giving and refusing of instructions are con-
cerned, we deem it sufficient to indicate, in general terms, our
opinion upon the law applicable to the case as presented on
the trial in the court below, without critically examining the
phraseology of each instruction given and refused.
The appellants are expressly bound by their covenant, "to
work the said coal mine during the continuance of this lease
and agreement in a good and workmanlike manner." It was
incumbent on appellants to know, and the presumption is
they did know, when they made this covenant, the difficulties
to be encountered in performing it. It is elementary law that,
when the contract is to do a thing which is possible in itself,
the promiser will be liable for a breach thereof, notwithstand-
ing it was beyond his power to perform it, for it was his own
fault to run the risk of undertaking to perform an impossi-
bility, when he might have provided against it by his con-
tract. 1 Chitty on Conts. (11 Am. Ed.) 1074.
But where, from the nature of the covenant, it is apparent
the parties contracted on the basis of the continued existence
of a given person or thing, a condition is implied that, if the
performance became impossible from the perishing of the per-
son or thing, that shall excuse such performance. Id. 1076.
If, therefore, the coal mine was exhausted, the appellants
were excused from further working it.
Whether a coal mine is exhausted or not, is a question of
fact to be determined by the jury, from the evidence, and,
in determining this question, since the parties are always sup-
posed, in entering into a contract, to have reference to the
known usage and custom which enters into and governs the
business or subject to which it relates, it would be proper to
hear evidence of any known usage or custom relating to this
question, and showing when a mine is deemed exhausted.
There is nothing in this lease which shows that the coal to
be mined was to be adapted to the demands of any particular
544 Palmer v. Bichakdson. [Sept. T.
Syllabus.
market, or that it should be of any peculiar quality, other
than what is described by the words "bituminous coal," and
"cannel coal," and the law does not allow the court to pre-
sume the existence of conditions or qualifications in this
respect.
We perceive no necessity for noticing any other questions
presented by the record.
The judgment of the court below is reversed, and the cause
remanded with directions to that court to overrule the de-
murrers to the 2d, 3d, 4th and 5th pleas of the appellants,
and allow appellees to plead over.
Judgment reversed.
Mr. Justice McAllister, having been of counsel, took no
part in the decision of this case.
Eugene P. Palmee
v.
Michael J. Richardson.
1. Malicious pkosectjtion — burden of proof. In an action for malicious
prosecution for causing the plaintiff's arrest, the burden of proof is
upon him to show clearly, by a preponderance of evidence, that the defend-
ant did not have probable cause to institute the criminal prosecution
against him.
2. Same — what is probable cause. Probable cause is a reasonable
ground of suspicion supported by circumstances sufficiently strong in
themselves to warrant a cautious man in the belief that the person accused
is guilty of the offense charged.
3. Where a party is arrested on a charge of larceny, and the circum-
stances are such as to cause a reasonable suspicion of his guilt, a verdict,
finding the prosecution to be malicious, will be set aside.
4. Same — legal advice, If a party, before commencing a criminal pros-
ecution, makes a full and fair statement of the facts of the case to his
legal adviser, with an honest view to learn if they will warrant the pros-
ecution, and is advised by his attorney that they will, this will go far to
show probable cause, and that he acted without malice.
1873.] Palmer v. Richardson. 545
Opinion of the Court.
Appeal from the Circuit Court of Cook count}-; the Hon.
John G. Rogers, Judge, presiding.
Messrs. Sleeper & Whiton, for the appellant.
Mr. Wm. T. Butler, and Mr. Kobert Hervey, for the
appellee.
Mr. Justice Craig delivered the opinion of the Court :
This was an action on the case, brought by Michael J.
Richardson against Eugene P. Palmer, in the circuit court
of Cook county, to recover for an alleged malicious prosecu-
tion, instituted by the latter against the former.
The cause was tried by a jury, and a verdict rendered in
favor of the plaintiff for $1000. A motion for a new trial
was made and overruled, and judgment entered upon the ver-
dict, from which the defendant appealed to this court.
A reversal of the judgment is asked, mainly, on the ground
that the verdict is contrary to the weight of the evidence.
It seems to be difficult for a jury to comprehend that an
innocent person may be arrested for a criminal offense, and at
the same time the law afford no redress against the person
who caused the arrest and prosecution, and yet, experience
teaches us this is not an uncommon occurrence.
While it is a great hardship that an innocent person should
be prosecuted for a criminal offense, yet it is far better for
the preservation of peace, order and the well being of society
that this should occasionally occur, than that the citizen should
be deterred from instituting criminal prosecutions for a viola-
tion of the laws of the land.
In order for the plaintiff to recover in this case, the burden
of proof was upon him to show, clearly, by a preponderance
of evidence, that the defendant did not have probable cause
to institute the criminal prosecution against him. Boss et al.
v. Innis, 35 111. 487.
35— 70th III.
546 Palmer v. Richardson. [Sept. T.
Opinion. of the Court.
Good faith on the part of the prosecutor is always a good
defense, unless it appears that he closes his eyes to facts
around him which are sufficient to convince a reasonably
cautious man that no crime, in fact, has been committed by
the person about to be prosecuted.
Probable cause has been defined, by this court, to be a rea-
sonable ground of suspicion supported by circumstances suf-
ficiently strong in themselves to warrant a cautious man in
the belief that the person accused is guilty of the offense
charged. Riohey v. McBean, 17 111. 65 ; Jacks v. Stimpson, 13
ib. 701 ; Ross et al. v, Innis, 35 ib. 505; Collins et al. v. Hayte,
50 ib. 353.
The main question for consideration in this case, then, is,
did the plaintiff, by his proof, tested by the correct rules of
law that govern this class of cases, make a case which justi-
fied the jury in rendering the verdict they did?
Upon a careful examination of the facts in this case, as
shown by the record, we have arrived at the conclusion that
the verdict is manifestly contrary to the weight of the evi-
dence, and that the jury did not comprehend the law as ap-
plicable to the evidence in the case.
The prosecution instituted by the defendant, Palmer, which
the jury found to be malicious and without probable cause,
so far as it is material to state them, grew out of these facts:
About 4 o'clock on the morning of the fire in Chicago, Oct.
9, 1871, the plaintiff and one Carrager, with a horse and
wagon, went to the store of Hotchkin, Palmer & Co., which
was about to be burned, and loaded their wagon with valua-
ble goods, worth from $1500 to $2000, and started to the
place of business of plaintiff; as the wagon started, Palmer's
attention was called to it by his clerk, and he followed and
got upon the wagon. The three men had not proceeded far,
when a controversy arose between Palmer and Richardson in
regard to where the goods should be taken, and the amount of
compensation Richardson should receive for hauling the goods.
Angry words were exchanged, and the contest was excited.
1873.] Palmer v. Richardson. 547
Opinion of the Court.
Palmer finally called upon a man who was passing, for as-
sistance; after this Richardson took the goods to a place of
safety, where Palmer wanted them taken. The goods were
unloaded. Richardson kept back a piece of beaver cloth,
as pay for hauling, which, he insisted, Palmer agreed he should
have. Palmer refused to let him have this, and the evidence
of Palmer and Carrager shows that Richardson took off this
piece of goods by force.
The evidence shows that about the time these goods were
loaded in the wagon by Richardson and Carrager, several lots
were stolen as they were carried out of the store and piled
up; that Palmer was not acquainted with Richardson.
Palmer and his clerk testify that Richardson had no au-
thority to load his wagon with goods. Ludlow, the clerk,
swears that he had entire charge of taking care of and sav-
ing the goods, and that he gave no authority to Richardson
to take or haul goods; that he had no knowledge of Richard-
son, until, about the time the wagon started to drive off with
the load, he saw it and directed Palmer's attention to the
wagon, and as it moved off Palmer got upon it.
That plaintiff and Carrager attempted to haul off this
load of goods in defiance of Palmer, is sworn to by Palmer,
and he seems to be corroborated by this fact : he testifies that,
on the road, he had difficulty with Richardson, and called
for assistance, and a man passing by interfered.
Richardson and Carrager, in their evidence, both testify
that Palmer did call for assistance.
There is another very suspicious fact in the case : Palmer
testifies that after the goods were unloaded, and the two men
got in the wagon to start off, he discovered several shawls
under the cushion that the men were sitting upon, and that he
got in the wagon and forced them off the seat and got the
shawls. Plaintiff and Carrager, in their evidence, concede
the fact, but undertake to explain that they did not know the
shawls were there.
548 Palmer v. Richardson. [Sept. T.
ODinion of the Court.
These are the leading facts in the case, and upon them,
some days after Richardson took the piece of beaver cloth,
Palmer had him arrested for stealing it.
When these facts are taken in connection with the further
fact that Richardson was an entire stranger to Palmer, and
that, during the fire, larceny was of common occurrence;
that excitement ran high, and that law and order were, to a
great extent, set at naught, can it be said that Palmer, in
causing the arrest of the plaintiff, acted without probable
cause and with malice? We do not think the evidence jus-
tifies that conclusion.
There is another fact in the case that tends to show that
Palmer acted in good faith and without malice. Before he
commenced the criminal prosecution, he took legal counsel
of Mr. Swezey, an attorney at law in Chicago, who had been
in the habit of doing business for him.
Mr. Swezey testifies that Palmer gave him a full statement
of the facts in the case, that, in stating the facts, he gave
them as fully and fairly as he did in his evidence on the stand,
and that, upon hearing the facts stated, he advised Palmer
that there was sufficient ground for the arrest.
It is a clear proposition of law, that if Palmer laid all the
facts before his attorney, with an honest view to learn if they
would warrant a criminal prosecution, and was advised they
would, such will go far to show probable cause.
In view of all the facts, we are satisfied that justice de-
mands that this cause should be submitted to another jury.
The judgment will be reversed and the cause remanded.
Judgment reversed.
1873.] Larmon v. Carpenter. 549
Opinion of the Court.
Philip Larmon
V.
Philo Carpenter.
1. Debt— when it lies. The action of debt lies whenever indebitatus
assumpsit will lie, and is a concurrent remedy. To maintain debt upon
a specialty, the instrument must show upon its face an undertaking to
pay a sum certain to a specified person, and at a certain time.
2. An action of debt will not lie upon an ordinary chattel mortgage
which contains no promise, undertaking or covenant, by the mortgagor,
to pay the money secured by it.
Appeal from the Circuit Court of Cook county.
Mr. N. Monroe, for the appellant.
Messrs. Runyan, Avery, Loomis & Comstock, for the
appellee.
Mr. Chief Justice Breese delivered the opinion of the
Court :
This was an action of debt, in the Cook circuit court,
brought by Philo Carpenter, against Philip Larmon, on a
chattel mortgage, which is set out in full in the declaration.
The defendant demurred to the declaration, which the
court overruled and gave judgment against him for the debt
demanded, and interest thereon, the defendant choosing to
abide by his demurrer.
The record is brought here by appeal, and the point made
by appellant, that the action of debt does not lie upon a chat-
tel mortgage. He insists that the instrument sued on con-
tains no acknowledgment of any indebtedness, or any cove-
nant, promise or agreement on his part to pay money to
appellee.
Appellee, in support of the action, cites 1 Ch. PI. 110,
where it is said the action lies " on annuity deeds and on
mortgage deeds." The entire citation from Chitty is, " Debt
550 Larmon v. Carpenter. [Sept. T.
Opinion of the Court.
lies to recover money due on any specialty or contract under
seal to pay money, as, on single bonds, on charter parties, on
policies of insurance under seal, on leases for rent, on penal-
ties, as for plowing up meadow, etc., on annuity deeds and on
mortgage deeds."
The doctrine is, that the action of debt lies whenever
indebitatus assumpsit willlie,andisa concurrent remedy. To
maintain the action of debt upon a specialty, the instrument
must show on its face an undertaking to pay a sum certain
to a specified person, and at a certain time.
This court has defined a chattel mortgage. It is in the
nature of a pledge and conditional sale, to become absolute
and vest the thing mortgaged, without redemption, upon
condition broken, in the mortgagee. Bhines v. Phelps, 3
Gilm. 455.
The mortgage in question contains no promise or under-
taking, or covenant, by the grantor, to pay any money. He
conveyed, by the deed, a house to the grantee, which would
be restored to him if he paid to the grantee certain moneys,
at certain specified times; if not, the title became absolute,
and vested the thing mortgaged, without redemption, in the
grantee or mortgagee, and that is the extent of it.
The text in Chitty has no application to such a case as
this. He had reference to mortgages as they exist in England,
which contain, after the proviso, an express covenant by the
mortgagor for the payment of the mortgage money. On such
an undertaking debt would lie, or covenant. Here, there is
no undertaking, no agreement, no promise to pay money.
The mortgagee has all he contracted for; the chattel is his
if the mortgagor fails to make certain payments. The deed
acknowledges no debt, nor is there any obligation contained
in it to pay money for which an action of debt would lie.
The demurrer should have been sustained to the declara-
tion. Overruling it was error, and for the error the judg-
ment must be reversed, the appellee having no right to this
action. T , , ,
Judgment reversed.
1873.] Mc Williams et at v. Morgan. 551
Ooinion of the Court.
David McWilliams et al.
V.
Richard P. Morgan.
1. Injunction bond — damages, when and how assessed. Where the con-
dition in an injunction bond was, that the obligors should pay or cause to
be paid to the obligee all such costs and damages as should be awarded
against the obligors in case the injunction should be dissolved, it was
held, that the damages must be assessed by the chancellor after the disso-
lution of the injunction and before the bill in chancery was disposed of,
to authorize a recovery on the bond in an action at law.
2. Where such assessment is not made by the chancellor, damages can
not be assessed in an action at law on the bond, and no recovery can be
had beyond the amount of costs growing out of and connected with the
injunction.
3. Practice. When an injunction is dissolved, and the defendant is
unable to procure his evidence to prove the damages sustained, the court
would continue the case until he could do so, and if it is not practicable
to have damages assessed at the term when the injunction is dissolved, he
can file his claim, and have them assessed at the next or some subsequent
term.
Appeal from the Circuit Court of Livingston county ; the
Hon. Charles H. Wood, Judge, presiding.
Mr. L. E. Payson, for the appellants.
Mr. H. A. Gardner, and Messrs. H. & J. D. Spencer, for
the appellee.
Mr. Justice Walker delivered the opinion of the Court:
It is objected, that there is a variance between the bond
declared on in this case, and that read in evidence. But,
inasmuch as the judgment of the circuit court must be re-
versed on another ground, and as the declaration can be
amended before another trial, if one should be had, we shall
not discuss this question.
A fatal objection is, however, urged to the judgment. The
bond upon which suit is brought contains this condition: If
552 McWilliams et al. v. Morgan. [Sept. T.
Opinion of the Court.
appellants "shall pay or cause to be paid to Morgan all such
costs and damages as shall be awarded against complainants
in case said injunction shall be dissolved, then this obligation
to be void."
The injunction was dissolved, but no damages were assessed
at that time, or, so far as appears, at any time whilst the bill
in chancery was pending and undisposed of in the circuit
court. This, then, presents the question, whether the suit
may be maintained and the damages be assessed on the trial at
law on the bond; or, under such a condition, must the dama-
ges be assessed by the chancellor, on the dissolution of the
injunction?
The case of .Russell v. Rogers, 56 111. 176, was a suit on a
bond containing a similar condition, and it was held that no
recovery could be had unless the damages were assessed by
the chancellor after the injunction was dissolved. It was
there held, that the act of 1861 (Sess. Laws, 133,) required
such an assessment to authorize a recovery on the bond. This
case is, in all essential particulars, similar to that, and it must
control. And Brownfield v. Brownjield, 58 111. 152, is to the same
effect. The requirement is one of easy performance. It is
attended with less expense and delay. It gives to the obligee
a speedy and inexpensive remedy by execution against the
complainants, and when they are able to respond to the dam-
ages, they may be collected of them without a resort to the
sureties, thus saving them from expense, and, when collected
from them, from a suit for contribution. As a matter of pub-
lic policy, it is better than the necessity of other tedious and
expensive litigation. Nor can it operate harshly or unjustly
upon the defendant in the chancery suit, as he may readily
procure his evidence to prove the damages sustained. And
if unable to do so, the court would continue the case until he
could produce his evidence. If not practicable to have them
assessed at the term when the injunction is dissolved, he can
then file his claim and have them assessed at the next or some
subsequent term, and thus speedy and complete justice may
1873.] Kimball et at. v. Tooke. 553
Syllabus.
be done. As the damages were not assessed by the chancel-
lor after the injunction was dissolved, there was no right to
recover in this case beyond the amount of the costs growing
out of and connected with the inj unction.
The judgment of the circuit court must be reversed and
the cause remanded.
Judgment reversed.
Frederick O. Kimball et al.
v.
M. McKendree Tooke.
1. Specific performance. A party can not call upon a court of
equity for a specific performance of a contract, unless he has made a con-
scientious effort on his own part to comply honestly with the contract.
2. Specific performance will not be enforced if there is anything that
makes it unconscionable, from change of circumstances, lapse of time, or
otherwise, to enforce it.
3. A court of equity is not bound to compel the performance of every
contract. Although there may not be sufficient grounds for annulling it,
under some circumstances, the court might be unwilling to decree either
party affirmative relief.
4. Time — when it is of the essence of the contract. A provision in a con-
tract for the sale of land, that, if the vendee failed to make either of the
payments therein provided for, the vendor, at his option, might declare a
forfeiture, in effect, makes time of the essence of the contract, and imposes
upon the vendee the necessity of offering to perform on his part at the
time named in the contract.
5. Offer to perform — when and oy whom it should be made. The ven-
dor sold land to the vendee, to be paid for in several installments, the first
of which became due on the 15th day of the next month. The contract
provided that, in case of the failure of the vendee to make either of the
payments, the vendor might, at his option, declare a forfeiture. It was
held, that the vendee was bound to tender payment of the first installment
when it became due, to avoid a rescission of the contract.
6. In such a case, the fact that there was an incumbrance or cloud
upon the title, would not relieve the vendee from the obligation to make
an offer of performance on his part, and the mere omission to make such
offer would warrant a rescission of the contract by the vendor.
554 Kimball et al. v. Tooke. [Sept. T.
Opinion of the Court.
7. Tender — to whom it should be made. A purchaser of land should
tender the purchase money to the vendor — the owner of the fee — if he
desires to show a proper effort on his part to execute the terms of the
contract. A tender to one who holds only a dower interest will not avail.
8. Forfeiture — what amounts to an acquiescence in. Where it was
claimed b}^ a vendor that he had declared a forfeiture of the contract for
a failure by the vendee to make the first payment, and the vendee, at a
subsequent time, tendered the amount of such first payment to the vendor,
and the vendor refused to receive the same, and stated to the vendee that
the contract was at an end — that no contract existed — it was still obliga-
tory upon the vendee to make a tender of the other installments as they
became due, and a failure to do so will be an acquiescence in the decla-
ration of forfeiture, whether it was rightfully made or not, in the first
instance.
Appeal from the Circuit Court of Cook county; the Hon.
W. W. Farwell, Judge, presiding.
Mr. Milton T. Peters, Mr. E. A. Small, and Mr. John
N. Jewett, for the appellants.
Messrs. Harding, McCoy & Pratt, and Mr. E. W. Evans,
for the appellee.
Mr. Justice Scott delivered the opinion of the Court :
The contract between the parties which appellee seeks to
have specifically executed, bears date the 27th day of Febru-
ary, 1869. On that day, appellants sold to appellee the tract
of land described in the bill, for the sum of $30,000, payable
as follows: $100 cash in hand; $5000, including the $100
paid down, on or before the loth day of March, 1869; $5000
on the 1st day of September, 1869, and the remainder in
two equal annual installments of $10,000 — the payments to
be secured by mortgage, with power of sale, and to bear
interest at the rate of eight per cent per annum. The con-
tract contained a clause in which it was expressly provided,
in case of the failure of the vendee to make either of the pay-
ments, or perform any of the covenants on his part, the ven-
dors, at their option, might declare a forfeiture, and retain all
payments previously made as liquidated damages.
1873.] Kimball et al. v. Tooke. 555
Opinion of the Court.
The bill was not filed until the 12th day of September,
1872. All the installments had matured long prior to that
date. The only payment that was ever made on the purchase
was the sum of $100, at the date of the execution of the
agreement.
The right to relief is predicated on the ground that, at the
maturity of the installment due March 15, 1869, there
appearing to be an incumbrance upon the land, created by two
old unsatisfied mortgages, and a cloud upon the title, caused
by a conveyance by and back to Hart L. Stewart of a portion
of the land, appellant Frederick O. Kimball, who is the real
owner of the land, the other appellant having only a dower
interest, voluntarily waived payment on that day, with a view
to get time to remove the incumbrances from the land, and
the cloud from the title. The extension mutually agreed
upon, it is alleged, was from the 15th to the 16th of March,
and from the latter date to the next Saturday or Monday.
On the contrary, appellants insist they were ready on the
15th of March, with a deed properly executed, to perform the
agreement; that there was no extension of the time of perform-
ance agreed upon or consented to by them beyond the 16th of
March, at 2 o'clock in the afternoon of that day, and the
installment due on the day previous not having been paid, a
formal declaration of forfeiture was made, with a view to put
an end to the contract.
There are but few facts material to the consideration of the
case, and scarcely any contradiction in the testimony relative
to them, except as to what occurred between the parties at
the several interviews on the 15th and 16th of March, 1869.
All the witnesses who testify on either side, from their own
knowledge as to what transpired at those interviews, were at
the time interested in the property. The interests of Pitner
and White have since been extinguished.
Passing over, for the present, what occurred between the
parties on the 15th and 16th of March, a brief statement of
the other facts and events as they transpired, so far as they
556 Kimball et al. v. Tooke. [Sept. T.
Opinion of the Court.
are necessary to illustrate the case, may be made. Whatever
may have been the understanding, it is certain Kimball did
not call on him after the interviews on the 15th and 16th of
March, but Tooke wrote him two letters in relation to the
completion of the unsettled business between them. The first
letter is without date, but, from the testimony, it was written
about the 25th of March, in which it is said it is understood
Hart L. Stewart is willing to give a quit-claim deed, to cor-
rect the records of the title to Kimball's land, and that they
are ready to close the matter on call. This letter is signed
by Pitner and Tooke. No allusion is made in it to any in-
cumbrance upon the property. The next letter is dated April
19, 1869, in which he says he has been waiting for several
days for Kimball to call with the deed to the premises, with
the title perfected, and that the money is in the bank. Both
letters were received, but no replies sent.
On the 1st day of May, Tooke called on Kimball, at his
residence, in regard to the matter, but Kimball would enter-
tain no negotiations about the property, and most unequivo-
cally assured him there was no contract existing between them ;
that it had been forfeited for non-payment of the installment-
due on the 15th of March. On his return, Tooke immedi-
ately caused a mortgage, with power of sale, to be prepared,
to secure the deferred payments, and, on the 5th of May,
White, acting as the agent of Tooke, called at the residence
of appellants on the premises, and tendered to Mrs. Kimball
the mortgage, together with the $5000, less $100 previously
paid, with interest from the 15th day of March, and demanded
a deed, which was refused, for the reason assigned, that the
contract had then been declared forfeited. At the same time,
White left a written notice for Frederick Kimball, that the
mortgage, notes and money would be deposited in his safe,
subject to his order. There is no pretense there has been any
offer by Tooke, or any one for him, to pay either of the sub-
sequent installments as they severally became due, and no offer
whatever, other than that contained in the bill, to pay what-
1873.] Kimball et al v. Tooke. 557
Opinion of the Court.
ever amount should be found due, if the court should decree
a specific performance of the agreement.
The reason assigned for the long delay in bringing this bill
is, that, on the 2d day of December, 1869, appellants filed
their bill in the Superior Court of Chicago, to cancel the
contract, which had previously been placed on record in the
proper office, on the ground it was a cloud upon the title of
the property, the same having been declared forfeited for the
non-payment of the installment due March 15, 1869. That
bill had been dismissed by the Superior Court for want of
equity, and the cause was still pending in the Supreme Court.
The appellee alleges he was advised by counsel that the deci-
sion in the Supreme Court would definitely settle the rights
of the parties, and hence no steps were taken by cross-bill in
that case, or by original bill, to compel a specific performance
of the contract.
It is contended, the former decision is conclusive of one
controverted fact in this case, viz: that there was no formal
declaration of forfeiture of the contract by the vendors on
the 16th day of March, 1869. However that may be, we do
not think that decision affects the merits of this controversy.
The decree of the Superior Court was modified in this court
so as to stand as a decree without prejudice to the rights of
the parties, in case a bill should be brought by the vendee
for a specific performance of the contract. Concerning the
position of the parties in reference to such possible litigation,
the court expressed no opinion.
The former bill was filed by appellants to have the con-
tract rescinded on the ground that the payment to be made
on the 15th of March was not made or tendered, and that the
vendors then gave notice of their election to declare a for-
feiture. This was the sole ground upon which relief was
sought. Counsel for the vendee then insisted the court should
confine its decision to the case made by the bill, and, in view
of that fact, it was said, "whether, as urged by appellants, it
was the duty of Tooke to tender payment of the first install-
558 Kimball et ah v. Tooke. [Sept. T.
Opinion of the Court.
ment before the 5th of May, even accepting his own evidence
as to what occurred on the 15th and 16th of March, or whether
it was also his duty to tender the September installment, are
questions to be solved when Tooke shall file a bill for specific
performance, if he ever takes that course. They are certainly
not questions presented by the pleadings in the case." Kim-
ball v. Tooke, 64 111. 380.
These are the controlling questions in the present case.
They lie at the foundation of the right to the relief sought.
By the former decision, we are left perfectly free to determine
them as upon first impression.
We have carefully considered the case in all its phases, and
we are unable to perceive anything in the record that would
relieve appellee from the duty to tender the first installment
on maturity, or certainly on the 16th of March. It was the
agreement the vendors, in case of a failure to make " either
payment" at the appointed time, might, at their option,
declare a forfeiture. That provision, in effect, made time of
the essence of the contract.
There was no express agreement, nor indeed anything from
which consent could be inferred, to extend the time of pay-
ment of the first installment beyond the 16th day of March;
and, in the absence of such an agreement, or proof of circum-
stances that would throw him off his guard, the law made it
the duty of the vendee to tender compliance with his contract.
A failure in this respect gave the vendors the option to
rescind the agreement.
On the question of the extension of the time of payment
of the first installment, the testimony can hardly be said to
be contradictory. Kimball is positive in the assertion there
was no extension beyond two o'clock of the afternoon of 16th
of March, and Tooke's declaration is, "he said nothing to
the contrary, and we took it for granted that it was the inten-
tion to perfect the title before requiring the payment," and
that he "seemed willing to make the necessary effort to get
it (the cloud upon the title) removed." Clearly, there was
1873.] * Kimball et al. v. Tooke. 559
Opinion of the Court.
neither an express nor an implied agreement to waive prompt
payment of the first installment.
Neither the incumbrance upon the property nor the cloud
upon the title insisted upon constituted any valid excuse for
the failure of the vendee to offer to perform his agreement.
The vendors could remain passive until there was offer of
performance on the part of the vendee, and a mere omission
would warrant a rescission of the contract; but they did not
choose to remain passive. There is evidence that proves con-
clusively the vendors were ready, with a deed to the property,
to proceed with the execution of the agreement. What excuse
has the vendee shown for not accepting the deed tendered, and
paying the installment then due under the contract? The
law has cast the burden upon him to show, by satisfactory
proof, a reasonable excuse for non-performance. This he has
not done. There is absolutely nothing in the facts proven
that would justify the vendee to hesitate to perform his con-
tract. The objections taken to the title were frivolous, and
it seems hardly possible any person anxious and ready to
perform his agreement, would insist upon them. He knew,
according to his own testimony, before the meeting on the
16th of March, that Hart L. Stewart claimed no interest what-
ever in the premises, and had expressed a willingness to
release any apparent interest. It was known to him that the
vendors had been in possession of the premises for more than
twenty years, and that it was by a mere clerical error that
Stewart included a portion of the property in a deed made by
him. His grantee had reconveyed to him, and he had
assured the parties of his readiness at any time to execute a
quit-claim. This fact could not render the title suspicious in
the mind of any reasonable man.
The incumbrance claimed to be upon the property, was
insignificant in amount, and, withal, it was a stale claim. It
appears there were two unsatisfied mortgages on the property,
both given by Osgood Kimball, in his lifetime, to Henry G.
Hubbard, one dated in 1846, and the other in 1851. The
560 Kimball et al. v. Tooke. * [Sept. T.
Opinion of the Court.
latter appears to have been given in renewal of the former,
but whether it was or not, the indebtedness secured by the
first was barred by the Statute of Limitations. The last one
was to secure four notes, each for $88.56, payable in one, two,
three and four years. Hubbard died in 1852, and Osgood
Kimball in 1853. Mrs. Kimball was the administratrix of
her husband's estate, and was appointed in 1853. She states,
no claim was ever presented against the estate on account of
the notes secured by the mortgage, and that Mrs. Hubbard,
who was the administratrix of her husband's estate, had told
her, in 1853, that all had been paid on the mortgages that
should be, and, so far as she was concerned, she was ready to
give them up. The abstracts of title, which showed the ex-
istence of the mortgages, contained, also, a memorandum that
a bill to foreclose the latter mortgage had been dismissed for
want of prosecution, in 1868. This, if it was not a bar,
would seem at least to*be an abandonment of the claim. These
facts were known to Tooke. It was unreasonable to insist
that Kimball should first pay this old, stale claim, that the
parties in interest did not themselves insist should be paid.
It was a mere pretext for delay, and constituted no valid rea-
son for not tendering performance of the contract. Before
he could refuse to perform the contract, it must be shown the
facts were sufficient to cast a cloud upon the title, and render
it suspicious in the minds of reasonable men, so as to affect
seriously its market value. Snyder v. Spaulding, 57 111. 480.
The facts in this case were not of this character. So far
as the apparent interest in Stewart was concerned, the vendee
was advised by Stewart himself he claimed no interest in the
property, and, as to the incumbrance alleged, certainly no
reasonable man, with the facts before him, that the claim was
stale, trifling in amount, and the bill to enforce it had been
dismissed for want of prosecution, could, with any show of
sincerity, insist it constituted any valid objection, and espe-
cially where $25,000 of the purchase money remained to be
paid. The objection seems so absurd that it is difficult to
1873.] Kimball et al v. Tooke. 561
Opinion of the Court.
appreciate it was put forth in good faith. Some other reason
must have existed why the vendee and the other parties inter-
ested with him were not anxious and earnest to complete the
contract on the 15th or 16th of March. It may be the attend-
ant circumstances afford an explanation to their conduct.
It is shown the property had been bought at rather a high
price. Two enterprizes of very considerable importance were
then in contemplation, viz: the construction of the South
Park and the establishing of the Cook County Normal School,
and if they should not be located in the vicinity, there would
be but little speculation in the purchase. Neither had then
been definitely determined upon. Their location in the
vicinity would materially affect the price of the land. This
was the belief of all parties. It was known to them these
questions would be settled in a few days. The vote fixing
the South Park near this land was taken on the 23d of
March, and the decisive vote of the board of supervisors
accepting the donation of land in the immediate neighbor-
hood, on which to locate the Normal school, seems to have
been taken on the 19th day of March.
It is difficult to avoid the impression these facts make, that
the objections taken to the title, so unsubstantial in their
character, were a mere invention to postpone the consumma-
tion of the contract until after these questions had been
settled; if favorable to the investment, to insist upon a ful-
fillment, and if unfavorable, to make the objections the basis
of a rescission of the contract. It seems singular, as insisted
upon by Tooke, that Kimball would employ White, himself
deeply interested in the transaction, as his own agent to pro-
cure the release of the old mortgages, when no one was, or
had been for many years, insisting upon payment of the
indebtedness thereby secured, and against which the Statute
of Limitations would soon run, perhaps before the last pay-
ment under the contract would become due. These acts do
not have the appearance of good faith. The law will not per-
mit a party to adopt plans to secure delav which would afford
36— 70th III.
562 Kimball et al. v. Tooke. [Sept. T.
Opinion of the Court.
him an opportunity to speculate on the advantages of his bar-
gain. Doyle v. Teas, 4 Scam. 202.
In the case at bar, time, by the agreement of the parties,
was of the essence of the contract. It was, therefore, incum-
bent on the vendee to tender the amount of the first install-
ment on maturity, and if the title the vendors had to offer was
not such as he had contracted for, he was not bound to part
with his money; but the vendors, however, were ready with
a good title, at least no valid objection, under the circum-
stances, could have been urged against it, and it was obliga-
tory upon him to receive it. Whether the title of the vendors
was entirely free from fault or not, the vendee ought to have
placed them in default by tendering performance.
Had the park and the Normal school been previously
located in the vicinity, the evidence leaves no room to doubt
the tender would have been made and a deed accepted, not-
withstanding the objections urged. They were too trifling to
stand in the way of any reasonable man who was anxious
and willing to comply with his contract. Equity will not
assist a party who has himself been guilty of prevarication.
He can not call upon a court of equity for a specific perform-
ance, unless he has made a conscientious effort on his own
part to comply honestly with the contract, or, in the language
of the books, "unless he has shown himself ready, desirous,
prompt and eager."
No tender of the first installment was ever made to Fred-
erick O. Kimball, who was the real owner of the land. The
tender that was made on the 5th of May was made to Mrs.
Kimball. Her's was only a dower interest. She had no title,
and could make no conveyance. She could only release her
dower to the owner of the fee. This fact was known to the
parties when they made the tender. It should have been
made to the party owning the fee.
Nor was the tender, such as it was, kept alive. The money
used belonged to White, and could only constructively be
said to belong to Tooke, because, by the terms of their agree-
1873.] Kimball et al v. Tooke. 563
Opinion of the Court.
ment, it was to go to him for an interest in the property; but
White parted with that interest, whatever it was, in 1870,
and there is no evidence that, after that date, any money was
kept under the control of the vendee with which to pay the
installment alleged to have been tendered. All the authori-
ties hold the tender must be kept good, so that if the party
entitled to receive it shall conclude to take it, the money will
be ready for him. The theory of the law is, it is the money
of the party to whom it has been tendered, and must be kept
in readiness for him while there exists the locus penitentice.
But an insuperable objection to a specific performance of
the contract is to be found in the fact that neither of the sub-
sequent installments was made as they severally became due.
Whether Kimball made any declaration of forfeiture on the
16th day of March, he did on the occasion of the visit of
Tooke to his house a few days before the alleged tender on
the 5th of May. He was then distinctly informed the con-
tract was at an end — that no contract existed.
Having failed to make any tender of the subsequent install-
ments, we think the law is settled it was an acquiescence in
the declaration of forfeiture, whether rightfully made or not.
This is the doctrine declared in Iglehart v. Gibson, 56 111. 81.
There, the declaration of forfeiture by the vendor was con-
ceded to be wrongful ; but it was ruled, if the vendee intended
to hold the contract as subsisting, and claim a specific per-
formance, he should have paid or tendered the subsequent
payments as they fell due, and, without showing it was the
result of fraud, accident or mistake, he will be presumed to
have acquiesced in the repudiation of the contract by the
vendor.
It is contended, the failure to make the subsequent pay-
ments can be justified, because it is insisted it was obligatory
upon the vendors to make the vendee a deed on payment
of the first installment, which, it is alleged, was tendered,
and, on the principle the contract should in equity be regarded
as executed after the tender, there could be no forfeiture for
564 Kimball et ah v. Tooke. [Sept. T.
Opinion of the Court.
defaults in future payments. The agreement, in this respect,
is of doubtful meaning, and whether it is the true construc-
tion as contended, that appellants were to make a deed to the
premises, to be delivered to appellee on payment of the first
installment, it will not be necessary to determine. It is suffi-
cient it was the contract between the parties, that, in case of
a failure to make "either of the payments," the vendors, at
their option, might declare a forfeiture. The contract re-
mained executory, and it was as much the privilege of the
vendors to rescind it for non-payment of the future install-
ments as the first one. It is not claimed the installment due
on the 1st of September, 1869, was either paid or tendered;
and if there was no other declaration of forfeiture, the filing
of the bill by appellants, on the 2d of December following,
to cancel the agreement, was an emphatic repudiation of the
contract. No effort was made to pay or tender the two remain-
ing installments. The last one matured in 1871, nearly
eighteen months before this bill was filed.
No reason other than the technical one suggested has been
assigned for the omission to make or tender these several
payments of the purchase money, according to the terms of
the contract. On the doctrine of Iglehart v. Gibson, supra,
the laches of the vendee, in this regard, would constitute an
effectual bar to a specific performance of the contract, if no
other reason existed.
But a court of equity is not bound to execute every con-
tract, although there may not be sufficient grounds for annull-
ing: it. When this cause was before this court at a former
term, on the bill of appellants, no sufficient reason was per-
ceived for cancelling the agreement; but it by no means
follows the vendee, for that reason, would be entitled to a
specific performance of it. The court might be unwilling,
under the circumstances, to decree either party affirmative
relief.
No doctrine is better settled than that this matter of can-
celling or enforcing contracts is within the sound, legal dis-
1873.] Kimball et aL v. Tooke. 565
Opinion of the Court.
cretion of the court. Equity will withhold its aid, if there
is anything that makes it unconscionable, from change of
circumstances, lapse of time, or otherwise, that the party
should have execution of his agreement. Taylor v. Merrill,
55 111. 52, and cases cited.
This principle is conclusive of the case we are considering.
Since the making of the contract, the circumstances sur-
rounding the parties have changed. Enterprizes, then only
in contemplation, have been matured, that materially affect
the value of the property. It has since tripled in value.
Only the trifling sum of $100 was ever paid on the purchase,
and that was in 1869. Since then, installments, amounting in
the aggregate to near $30,000, have matured, and yet it is not
claimed that any of them have been either paid or tendered,
except the first one of $5000. The delay in making or ten-
dering payment of the first installment, or indeed of any of
them, has not, and can not, be explained consistently with
good faith or a willingness on the part of the vendee to per-
form his agreement.
Counsel cite, with great confidence, the case of Wallace v.
McLaughlin, 57 111. 53. The facts of that case are distin-
guishable fro m? the one at bar. There, the vendees wxere in
possession by permission of the vendor, and had made lasting
and valuable improvements on the premises before they dis-
covered the title was in any manner incumbered. The delay
in making the payments seems to have been by the consent
of the vendor. He repeatedly said to the vendees he would
not crowd them, and, at one time, that he never would if
they would pay the interest. There were two subsisting
mortgages which constituted substantial incumbrances upon
the land, large in proportion to the entire purchase money,
and, in addition, there was a contingent right of dower that
might become absolute. These facts created strong equities
in favor of the vendees, and it was thought the claim of the
vendor, on declaring a forfeiture, that he should have back
the land, with all the improvements that had been put upon
566 Kimball et aL v. Tooke. [Sept. T.
Opinion of the Court.
it, and keep all the payments that had been made, was uncon-
scionable. The relief was decreed on the distinct ground that
the vendor's conduct had created such equities, in respect to
the land, that it properly required the aid of a court of equity
to adjust them, and it was his duty to apply to such a court
for that purpose, rather than to a court of law, to enforce his
own unconscientious claim in the matter. The objections
taken to the incumbrances on the land were in good faith,
and such as any reasonable man might insist upon, especially
when called upon to make the last payment.
But the facts are very different in the case before us. There
is nothing in the conduct of the vendors that has created any
equities, in respect to the land, in favor of the vendee, that
makes a resort to a court of equity necessary to adjust them.
Under the circumstances, it would not be unconscientious to
permit the vendors to declare and insist upon a rescission of
the contract.
The vendee was not, as in Wallace v. McLaughlin, called
upon to make the last payment when he interposed obstacles
to the further execution of the contract; nor does it appear
to us the objections could have been urged in good faith. The
incumbrance alleged to be upon the land was inconsiderable
in amount, in comparison with the unpaid balance of the pur-
chase price. What was claimed to be a cloud upon the title,
created by the deeds from and back to Stewart, was purely a
captious objection, and it is inconceivable that any one eager
to perform his contract would insist upon it with sincerity. It
looks as though it must have been done, as was before sug-
gested, with a view to afford the vendee and those operating
with him an opportunity to speculate on the advantages of
the bargain. We think the evidence tends to establish this
view of the case; for, as soon as the park and the Normal
school were located, appellee showed a degree of anxiety to
perform the agreement, that he had not before exhibited. In
no view that we have been able to take of the case, is he
1873.] "Weavee v. Poyer et ah 567
Syllabus.
entitled to have the contract specifically executed in his favor.
It would be most inequitable to do so.
As the decree upon the original bill will be decisive of the
rights of the parties, we have not deemed it necessary to
review the case made by appellants on the cross-bill. The
court, in its decree, does not seem to have made any disposi-
tion of it. It should have been dismissed, which will now
be done.
The decree of the circuit court will be reversed, and the
original bill dismissed in this court, at the costs of appellee.
Decree reversed,
Mr. Justice Sheldon dissents.
Charles H. Weaver
v.
William A. Poyer et al.
1. Appeal — when it lies to this court. Where the court, on motion of
the defendant, dissolved the injunction previously granted on a bill to
enjoin the collection of a judgment, there being no answer filed, and the
complainant then moved to dismiss his bill, if the court should hold there
was no equity in it, which the court did, and the complainant appealed:
Held, that the complainant was not precluded from appealing by his mo-
tion, but that he pursued the proper practice.
2. Chancery — whether the hill seeks other relief than an injunction. A
bill in chancery prayed for an injunction to restrain the collection of a
judgment at law, and the service of an execution which had been issued
thereon. The bill also prayed that the judgment be decreed to be void,
and of no effect. It was held this was no more than what would have
been the virtual effect of the perpetual injunction which was sought, and
the bill was regarded as really but a bill for an injunction, so that a de-
cree dissolving the injunction was considered a final one.
3. Same — motion to dissolve injunction — its effect. A motion to dissolve
an injunction on the face of the bill, no answer being filed, operates the
same as a demurrer to the bill, and if sustained, and the complainant is
willing to rest his case upon demurrer, he should move the court to dis-
miss his bill.
568 Weaver v. Poyee et al. [Sept. T.
Opinion of the Court.
4. Same — relief against judgment. A bill in chancery, to enjoin
the collection of a judgment at law, alleged that the summons in the suit,
though returned as served upon the complainant, never was, in fact,
served, that he never appeared in person or by attorney, and had no notice
or knowledge whatever of the existence of the suit until the execution
issued thereon was presented ; that the recovery was had upon goods con-
signed to complainant, as a commission merchant, for sale on commission,
and that they were destroyed in the great Chicago fire, without any fault
on the part of complainant; that at the time of the fire, the plaintiff in
the judgment was indebted to the complainant, and that, since then, there
had been no other dealings between them, nor had the complainant any
money or property of the plaintiff in his hands, except plaintiff's share
of insurance money on the goods destroyed, which was tendered by the
bill: Held, that the bill showed a good case for enjoining the collection
of the judgment, it having been rendered without jurisdiction, and being
unjust.
Appeal from the Superior Court of Cook county; the
Hon. Joseph E. Gaey, Judge, presiding.
This was a bill in chancery, brought by Charles H. Weaver
against William A. Poyer and Timothy M. Bradley, to enjoin
the collection of a judgment which had been rendered against
the complainant in the Superior Court of Cook county, by
default, on the 16th day of May, 1872, in favor of Poyer, for
the sum of $1446.50 damages, and costs, on which an execu-
tion had been issued and placed in the hands of Bradley, the
sheriff of Cook county, to collect. The proceedings had in
the court below appear in the opinion.
Messrs. Eldeldge & Touetellotte, for the appellant.
Messrs. Baekee & Wait, and Mr. Wm. Hopkins, for the
appellees.
Mr. Justice Sheldon delivered the opinion of the Court :
This was a bill in equity, brought by Weaver, the appel-
lant, to enjoin the collection of a judgment, and the service
of an execution which had been issued thereon, the judgment
having been rendered against him, by default, for the sum of
1873.] "Weaver v. Poyer et ah 569
Opinion of the Court.
$1446.50, in the Superior Court of Cook county, on the 16th
day of May, 1872, in favor of William A. Poyer. The bill
is the only pleading in the case. Upon motion of the defend-
ants in the court below, the temporary injunction, which had
been issued upon the bill, was dissolved, and thereupon the
solicitors for the complainant moved that, if the court held
there was no equity in the bill, the court would dispose of it,
and the court then, holding that there was no equity in the
bill, dismissed the same for want of equity, at the complain-
ant's costs.
The complaina'nt appealed, and assigns for error the dissolv-
ing of the injunction and dismissing the bill.
Appellees have moved to dismiss the appeal, upon the
ground that the decree appealed from was entered upon the
motion of appellant.
In Titus et al. v. Mabee et al. 25 111. 257, and Wangelin et al.
v. Goe, 50 id. 459, this court held, that a motion to dissolve an
injunction on the face of the bill, no answer being filed, would
operate in the same way as a demurrer to the bill.
In Knapp et al. v. Marshall et al. 26 111. 63, it was said :
"A complainant, willing to rest his case upon a demurrer,
must move the court to dismiss the bill. This is final, and
appeal or error will lie. A decision on the demurrer is merely
interlocutory." The complainant has but pursued the course
here indicated. It was proper, so as to have a final disposi-
tion of the case, in order that an appeal or writ of error might
lie. A mere order dissolving an injunction, is interlocutory.
Pentecost v. Magahee, 4 Scam. 326.
The court found there was no equity in the bill. It was
useless to go through the form of making proof of the alle-
gations in the bill. Had they all been proved, the result
would not have been changed. They were all admitted to
be true, by the motion to dissolve, and yet the court held
they made no case for an injunction. Taking the appeal was
the only way open to the complainant to preserve the injunc-
tion which had been issued, and keep it on foot until his right
570 Weaver v. Poyer et al. [Sept. T.
Opinion of the Court.
to the injunction could be passed upon by the court of last
resort. It is suggested that there was other relief sought by
the bill, and that therefore the decree dissolving the injunc-
tion could not be regarded as essentially a final one, as was
said in Titus et al. v. Mabee et al. supra. It is true, the bill
prays that the judgment be decreed to be void, and of no effect.
But that would be no more, in fact, than what would be the
virtual effect of the perpetual injunction which was sought, to
enjoin Poyer from doing any act or thing under or by virtue
of the judgment. We view the bill as really but a bill for
an injunction, and we regard the appeal as properly brought.
The bill alleges that, upon the summons, which appears
among the files of the suit in which the judgment was ren-
dered, there is a return of service by reading to the defendant,
and that the return is untrue; that the defendant was never
in any manner served with process in the cause; that he never
appeared therein, by person or attorney, and had no notice
or knowledge whatever of the existence of the suit until the
execution issued upon the judgment was exhibited to him by
the officer.
The bill alleges that, as appears from the files of the cause,
the cause of action in the suit was, to recover the value of a
quantity of dried apples and chestnuts; that said goods had
been consigned to the complainant, as a commission merchant,
in Chicago, for sale on commission; that, on the 8th and 9th
days of October, 1871, the property was destroyed by fire,
without any fault or negligence of complainant ; that, at the
time of said fire, Poyer was indebted to the complainant in
the sum of $313.28, after deducting all demands of Poyer
against complainant ; that, since then, he has had no transac-
tions or dealings with Poyer, and has in no manner become
indebted to him, nor has had any money or property of Poyer
in his hands, except his proportionate share of insurance
money received on an insurance which had been effected on
Poyer's goods, together with a quantity of other goods owned
by complainant and held for sale on commission — which pro-
1873.] Northern L. Packet Co. v. Binninger. 571
Syllabus.
portionate share, by statement given in detail, the complain-
ant makes out to be $388.53, and tenders into court for Poyer.
In Owens v. jRanstead, 22 111. 161, it was held, that equity
would enjoin the collection of a judgment thus obtained
without jurisdiction of the person. The bill shows that the
defendant had a complete defense.
We are of opinion the court erred in dissolving the injunc-
tion and dismissing the bill.
The decree is reversed.
Decree reversed.
Northern Line Packet Company
Alfred A. Binninger.
1. Removal of cause from State to United States court. A peti-
tion by a corporation for the removal of a cause from a State to a United
States court, under the act of Congress of July 27, 1868, should state that
the defendant is a corporation organized under a law of the United States,
or that there is a defense arising under the constitution of the United
States, or some treaty or law of the United States.
2. To entitle a defendant corporation to have a cause removed from a
State court to the circuit court of the United States, under the act of Con-
gress of March 2, 1867, the petition should show that all the corporators
are non-residents of the State.
3. Witness — impeachment — by contradictory statements. When a writ-
ten statement, made by a witness, which is materially different from his
testimony about the same subject matter, is shown to him on cross-exami-
nation, and an opportunity thus afforded for explanation of the discrep-
ancies, it is proper to let the paper be read in evidence, as a contradictory
statement, for the purpose of impeachment
4. Negligence. The question of negligence is one of fact, which
must be left to the jury for determination.
5. Instructions — modification. Where, in the modification of an in-
struction, the court but repeats at the end what is said in the body of it,
it is not admissible for the party asking the instruction to assign such
modification for error.
572 Northern L. Packet Co. v. Binninger. [Sept. T.
Opinion of the Court.
6. Same — considered as a series. In an action by a passenger against a
steamboat company for damages, claimed to have been caused by the
negligence of the company, an instruction that, before the jury can find
the defendants guilty, they must believe, from the evidence, that the de-
fendant was guilty of greater negligence than the plaintiff, when taken
by itself is calculated to mislead the jury.
7. But if other instructions are given on the same side, stating clearly
what acts of negligence on the part of the plaintiff will prevent his recov-
ery, so that the jury can, from a consideration of the entire series, obtain
a correct apprehension of the law applicable to the case, the misleading
feature of such instruction will be thereby corrected.
8. Damages — whether excessive. Where the plaintiff had both the bones
of the lower part of his right leg broken, by reason of the negligence of
the defendant, and was for several months wholly incapacitated from
labor, was subjected to considerable expense, and his injury is permanent,
$2500 is not outrageously excessive damages.
Appeal from the Circuit Court of Jo Daviess county; the
Hon. William Brown, Judge, presiding.
Mr. M. Y. Johnson, for the appellant.
Messrs. D. & T. J. Sheean, for the appellee.
Mr. Justice Scholfield delivered the opinion of the
Court :
This is an action on the case, by appellee against appellant,
for injuries received by appellee in consequence of appellant's
negligence. Trial was had in the Jo Daviess circuit court,
on the 21st of November, 1872, resulting in a verdict for the
plaintiff, and assessing his damages at $3000. The plaintiff
refusing to remit any of this amount, the court granted a new
trial, on the defendant's motion ; and a second trial of the
cause was had in the same court on the 25th of February,
1873. On this trial the jury found for the plaintiff, and as-
sessed his damages at $2500. Motion for new trial was again
made by the defendant, but it was overruled by the court,
and judgment was rendered upon the verdict of the jury, and
this appeal is now prosecuted to procure a reversal of that
judgment.
1873.] Noetheen L. Packet Co. v. Binningee. 573
Opinion of the Court.
After the first, and before the second trial, defendant pre-
sented its petition, verified by affidavit, to the court, praying
that the cause be removed for trial to the Circuit Court of the
United States, for the Northern district of Illinois. The court
overruled the motion, and the defendant, having excepted,
insists that such ruling was error, for which the judgment
below should be reversed.
In our opinion, the court below properly refused to remove
the cause, on the petition filed. If, as seems to be claimed,
the right of removal is predicated upon the act of Congress
of July 27, 1868, it is a sufficient answer that the petition
fails to show that the defendant is a "corporation organized
under a law of the United States/' or that it has "a defense
arising under or by virtue of the constitution of the United
States, or any treaty or law of the United States," as is re-
quired by that act. If, however, it is predicated upon the act
of March 2, 1867, then, as the petition shows that some of the
corporators are citizens of the State of Illinois, it was insuffi-
cient for that reason, for, in order to authorize the removal
of the cause under that section, it should appear that all the
corporators are non-residents of the State of Illinois. Case
of The Sewing Machine Companies, 18 Wallace, 353.
On the cross-examination of D. C. Smith, captain of the
defendant's boat, he was shown a written statement, purport-
ing to have been made by himself, concerning the circum-
stances transpiring at the time plaintiff received the alleged
injury. The statement is, in some respects, materially differ-
ent from the version of the transaction given by the witness
in his evidence. In response to a question propounded to
him, the witness answered "that the statement was written by
him the next spring after the accident. It was a general
statement as to the accident, made at the request of the offi-
cers of the company. Did not go into particulars. It was
not made until there was talk of a suit."
This statement was read in evidence by the plaintiff against
the defendant's objection, to which exception was taken ; and
574 Northern L. Packet Co. v. Binninger. [Sept. T.
Opinion of the Court.
it is argued that the court erred in admitting the evidence,
because a proper foundation was not laid.
The objection is not tenable. The paper having been
shown to the witness, and he, having admitted he wrote it,
and explained his purpose in so doing, had his attention suffi-
ciently called to the subject, and if the explanation given was
not satisfactory, defendant was at liberty to have further ex-
amined him in this respect. This was neither done nor asked.
The paper was competent evidence to go to the jury, as a
contradictory statement made before the trial, by the witness,
for the purpose of impeachment. 1 Greenleaf on Evidence,
sees. 463, 465, and 467.
It is insisted that the court below erred in modifying the
first of the defendant's instructions. The instruction, as asked,
was as follows :
"In an action against a steamboat company, to recover
damages resulting to the plaintiff, by reasons of injuries re-
ceived by him in jumping from the defendant's boat, the
plaintiff, being a passenger thereon, was bound to exercise
ordinary prudence, and, before the jury can find the defend-
ant guilty, they must believe, from the evidence, that the steamboat
company ivas guilty of greater negligence than the plaintiff, and
if the jury believe, from the evidence, that the plaintiff was
guilty of negligence, or failed to exercise his judgment in
jumping from the boat, so that a man of ordinary prudence,
similarly situated, would not have made the leap, then the
plaintiff is guilty of contributory negligence, and can not re-
cover."
The court modified it by adding : "Unless the jury believe,
from the evidence, that the defendant was guilty of greater
negligence than the plaintiff."
The objection urged to the modification is, that it "misled
the jury by a comparison of negligence."
It was held in The Galena and Chicago Union jRailroad Co. v.
Dill, 22 Hi. 264, that the question of negligence is one of fact,
1873.] Northern L. Packet Co. v. Binningee. 575
Opinion of the Court.
which must be left to the jury for determination ; that it
depended to a great extent upon the surrounding circum-
stances of each case, and unless there were gross acts of care-
lessness, or a failure to observe some positive legal require-*
ment, the court could not adopt any rule on the subject ; that
the jury must necessarily consider the relative situations of
the parties, and all the attendant circumstances, and deter-
mine whether there has been negligence or whether the occur-
rence was purely accidental and without fault of either party.
And this precise language was used again in I. and St. L. B.
R. Co. v. Stables, 62 111. 316, and may now be regarded as the
settled law of this court. The modification but repeats, at
the end of the instruction, what is said in the body of the
instruction as asked. It was there said, that to find the de-
fendant guilty "the jury must believe, from the evidence, that
the steamboat company was guilty of greater negligence than
the plaintiff." This as completely authorizes the jury to in-
fer that if they believe, from the evidence, that the defendant
was guilty of greater negligence than the plaintiff, they should
find the defendant guilty, as does the modification added by
the court.
The instruction, both as asked and as modified, taken by
itself, would have been calculated to mislead the jury. The
rule announced by this court, for many years, is, that where
the plaintiff is guilty of negligence, to entitle him to recover,
it must be slight and that of the defendant gross, when com-
pared with each other. But it is not perceived that this in-
struction was any more objectionable by repeating, at the
conclusion, the inaccurate language previously adopted by the
defendant's attorney ; and it is not admissible that a party
shall be allowed to assign for error that which he has himself
requested the court to do. Clemson et al. v. State Bank of
Illinois, 1 Scammon, 45.
But, waiving this, the misleading feature in this instruction,
as given, is such that it may have been corrected by subse-
quent instructions. It is strictly true that the plaintiff can
576 Northern L. Packet Co. v. Binninger. [Sept. T.
Opinion of the Court.
not recover unless the defendant has been guilty of greater
negligence than he has, and it is only from the implication
arising from the omission to state how much greater the de-
fendant's negligence should be, that it is calculated to mislead.
Other instructions on the same side, therefore, stating what
acts of negligence on the part of the plaintiff would preclude
his recovery, especially if their clearness and force is not im-
paired by counter instructions on the opposite side, would
necessarily supplement this instruction, so that the jury, from
a consideration of the entire series of instructions, would ob-
tain a reasonably correct apprehension of the law applicable
to the case.
It does not appear, from the record before us, that any in-
structions were given on behalf of the plaintiff; so we must
assume that the law, as given to the jury, is all embodied in
the instruction just noticed, and the others given at the in-
stance of the defendant.
The court gave the following instructions to the jury, as
asked by the defendant :
"3d. In an action to recover damages for an injury sus-
tained by the plaintiff, against the defendant, for negligence,
the injury complained of must have been occasioned by the
negligence or carelessness of the defendant ; and if the jury
believe, from the evidence, there was shore ice, making it
difficult to land the boat at said landing, and that the plain-
tiff insisted on being landed there, and that the landing was
made at the usual and proper place for landing boats at that
landing, and in making said landing, and putting out the
staging, it was done in the ordinary and safe way of landing
passengers at way landings ; and if the jury further believe,
from the evidence, that the landing was covered with snow,
so as to conceal some hard or uneven substance not known
to the defendant, and the plaintiff, in jumping from the stag-
ing, struck said substance on the ground, so concealed, and
thereby produced the injury complained of, this is not such
1873.] Northern L. Packet Co. v. Binninger. 577
Opinion of the Court.
negligence on the part of said defendant as would entitle him
to recover.
"4th. In an action to recover damages for injury sustained
by the plaintiff, against the defendant, for negligence, the in-
jury complained of must have been occasioned by the negli-
gence or carelessness of the defendant ; and if the jury believe,
from the evidence, the injury complained of was occasioned
by the plaintiff, on leaving the defendant's boat, in jumping
ashore, and in striking some hard or uneven substance con-
cealed under the snow on the wharf or landing, and thereby
produced the injury; and if the jury further believe, from
the evidence, that from the shore ice or other causes it was
difficult to land said boat at said landing, and that the plain-
tiff, from his long employment and familiarity with the man-
ner of landing boats and putting off passengers at way
landings, insisted on being landed there, and if it was done
in the ordinary and safe way of landing passengers at the
usual and proper place of landing passengers there, and the
injury complained of was occasioned by the plaintiff jumping
from the staging ashore, and striking upon some hard or un-
even substance concealed in the snow, not placed or known
to be there by the defendant, this is not such negligence on
the part of the defendant as will entitle the plaintiff to recover
against them.
"oth. In an action to recover damages for an injury sus-
tained by plaintiff, against the defendant, for negligence, the
injury complained of must have been occasioned by the neg-
ligence or carelessness of the defendant; and if the jury be-
lieve, from the evidence, that the injury complained of was
occasioned by the plaintiff, on leaving defendant's boat, in
jumping ashore and striking some hard substance concealed
under the snow on the wharf or landing, and thereby pro-
duced the injury, and that said hard or uneven substance
occasioning the injury was not placed there or known to the
defendant, and that the landing was made at the usual place
of landing passengers, then this is not such negligence, on the
37— 70th III.
578 Northern L. Packet Co. v. Binninger. [Sept. T.
Opinion of the Court
part of defendant, as will entitle the plaintiff to recover against
them. That the negligence or carelessness contemplated by
the law to render the defendant liable for the injury com-
plained of, must be a want of care and vigilance on the part
of the employees of the defendant, and they can not be held
liable for accidents occurring, by which an injury is sustained
by a person, from causes not under their control or care. 49
111.234.
"6th. The court further instructs the jury, if the jury
believe, from the evidence, that even if the jury should be-
lieve, from the evidence, that the captain of the boat told the
plaintiff to jump off the boat at the time he jumped off, that
he could do so with safety, yet left it voluntary with the
plaintiff to jump or not, then what the captain might have
said at the time (if the jury believe, from the evidence, any-
thing was said,) did not release the plaintiff from the duty of
exercising reasonable judgment and caution as to whether it
was safe to get off or not ; and if the jury believe, from the
evidence, that, under all the circumstances existing at the
time, a man of ordinary prudence, situated as plaintiff was,
would not have jumped off, then the jury should find for de-
fendant. 53 111. 513.
"7th. To entitle the plaintiff to recover from the defend-
ant in this suit for the injury complained of, the jury must
believe, from the evidence, that the injury complained of was
occasioned by the want of attention, carelessness or negligence
on the part of the servants of the defendant, and was not the
result of an accident; and if the jury believe, from the evi-
dence, that the boat was landed at the usual and proper land-
ing there to land passengers, and was made in the usual safe
and proper way at such landings, and that said injury sued
for was occasioned without fault of defendant, by striking
some hard substance on the shore, not placed there or known
to be there by defendant, and so concealed as to be out of
sight, notwithstanding said plaintiff's leg may have been
broken, this is not such negligence on the part of said defend-
1873.] Northern L. Packet Co. v. Binninger. 579
Opinion of the Court.
ant as will entitle the plaintiff to recover, and the jury should
find for the defendant.
"8th. To entitle the plaintiff to recover in this action, the
defendant must have been guilty of greater negligence than
the plaintiff in causing the injury; and if the jury believe,
from the evidence, that the plaintiff's conduct contributed as
much to the injury as the defendant's, then he can not recover
in this suit, and the jury will find for the defendant."
The substance of the second instruction, as asked by the
defendant and refused by the court, is embodied in these ;
and they also supply the omission in the first instruction.
Taken as a series, we think the instructions presented the
law as fully and favorably for the defendant, as was essential
to the protection of its legal rights. Finer v. Cover, 55 111.
391 ; Durham v. Goodwin, 54 id. 471 ; VanbusHrh v. Day, 32
id. 260.
The evidence shows that the plaintiff, on the 19th of No-
vember, 1869, was a passenger on one of the defendant's boats
from Davenport, Iowa, to Gordon's Landing, in this State,
some six or seven miles west of Galena, he having paid for
and procured the necessary ticket entitling him to be so car-
ried. When the boat arrived at Gordon's Landing it was
dark, and there was some difficulty in approaching the shore,
on account of ice ; but the evidence fails to satisfy us that the
defendant's servants used reasonable and ordinary care to
effect a proper landing of the boat. Between the point where
the boat was stopped and the shore, there appears to have
been a thin crust of ice, and again between this and the shore
there was running water. A "stage plank" was launched by
order of the captain of the boat, when it stopped, which
reached only from the boat to the ice, the shore end of the
plank resting on the ice. The distance from the ice to the
shore was some ten feet, and- the water intervening was sev-
eral feet deep. Two passengers jumped in safety from the ice
to the shore, but the plaintiff made the effort and failed, land-
580 Northern L. Packet Co. v. Binningee. [Sept. T.
Opinion of the Court.
ing in the water and striking a concealed stone with one of
his feet, whereby both bones of the lower part of his right leg
were broken off.
The evidence on behalf of the plaintiff tends to show that
defendant's servants might, by the exercise of but little effort,
have provided a convenient and safe means for the landing
of the passengers ; that plaintiff at first refused to make the
effort to land, objecting that he could not jump the required
distance ; that one of the passengers was proceeding to place
a "gang plank" from the end of the stage plank to the shore,
so that plaintiff could walk across, when the captain ordered
him to let it alone, and abruptly ordered the plaintiff to jump,
so that he could be off with his boat for Dubuque.
The evidence on behalf of the defendant tends to contradict
that of the plaintiff, but we are unable to say the jury erred
in finding that the preponderance was with the plaintiff.
Entertaining, then, this view of the evidence, plaintiff's
act in jumping can not be regarded as the result of his own
judgment and volition, but rather the result of the wrongful
conduct of the captain of the defendant's boat. There was,
therefore, under the circumstances, such moral coercion as
relieves plaintiff's conduct from the charge of that degree of
negligence which would otherwise have precluded his right
to recover.
We do not regard the damages assessed ($2500) as out-
rageously excessive. Plaintiff suffered severely and long.
For several months he was wholly incapacitated from labor,
and his injury is permanent, and must, through life, give him
some trouble and inconvenience. He was subject to consid-
erable expense, and has lost much time, and precisely what
inconvenience he may hereafter suffer on account of this injury
can not be conjectured.
There is no way by which the exact loss, in dollars and
cents, sustained in consequence of such an injury, can be as-
certained. Much discretion, in view of all the circumstances,
1873.] Harper et al. v. Ely et al. 581
Syllabus.
must necessarily be allowed to the jury in such cases; and,
except where they have manifestly and grossly erred in this
respect, we are not disposed to review their award.
The judgment is affirmed.
Judgment affirmed.
William L. Harper et al.
V.
D. J. Ely et al.
1. Mortgage — when mortgagee is rightfully in possession. Where a
sale is had under a deed of trust and the premises are purchased by the
holder of the debt for default in payment, and the debtor causes the sale
to be set aside, in equity, for an irregularity and fraud in the same, the
purchaser will be regarded as a mortgagee in possession for condition
broken, and not as a trespasser.
2. Same— payment for taxes and insurance on redemption. Where, by
the terms of a mortgage, the mortgagor is required to pay the taxes as
they become due and keep the property insured, and the mortgagee takes
possession for default, he will have the right to keep the premises insured
and make the rents pay for the cost of the same and the taxes.
3. Same — rule for charging mortgagee in possession with rents on bill to
redeem. On bill to redeem from a mortgage, where the mortgagee has
been in possession, the latter will be charged with the rents actually
received, and what could have been received by reasonable care and
diligence.
4. . Same — allowing prior incumbrances discharged to mortgagee on bill to
redeem. A mortgagee, on bill to redeem, will be allowed all sums ad-
vanced by him to remove prior incumbrances, and if the prior incum-
brance bore ten per cent interest as well as the mortgage debt, the
mortgagee will be subrogated to the rights of the prior lien creditor, and
may be allowed the same rate of interest.
5. Same — whether mortgagee in possession is entitled to commissions for
rents collected. On bill to redeem from a mortgage, where the mortgagee
is in possession, the mortgagee will not be allowed commissions for col-
lecting rents and looking after the property. It will be enough if he is
allowed what he pays out for collecting the rents.
6. Same — right to possession. Where a mortgagee is in possession for
condition broken, he will have the right to keep the same until his debt
is fully paid.
582 Harper et al. v. Ely et al. [Sept. T.
ODinion of the Court.
7. Same — costs on Mil to redeem. It is a well settled rule that, on a bill
to redeem from a mortgage after condition broken, the complainant
should pay the costs.
8. Intekest — on coupons given for interest. Where a mortgage is given
to secure a principal sum and coupons given for interest thereon, they
will draw interest after their maturity, the same as a note.
9. Evidence — right to have books, when produced on notice. Where a
party is required to produce his books of account to be used as evidence,
and he produces not the books of original entries, but his ledger, which
was not embraced in the notice, and which is inspected, merely, by the
opposite party, he will not have the right to have the same considered as
evidence in his favor.
Appeal from the Circuit Court of Cook county; the Hon.
E. S. Williams, Judge, presiding.
Messrs. Moore & Caulfield, for the appellants.
Messrs. King, Scott & Payson, for the appellees.
Mr. Justice Craig delivered the opinion of the Court :
This case was before this court at the September term,
1870, and the former decree rendered by the circuit court
was reversed, and the cause remanded for further proceedings
consistent with the opinion filed. Harper et al. v. Ely et al.
56 111. 181.
Pursuant to the opinion and judgment of this court, the
circuit court rendered a decree, in which the sale and con-
veyances made under it were set aside, and the cause was
referred to the master in chancery to state an account show-
ing the amount which should be a lien on the property, and
which is due to the defendants, B. F. Haddock, D. J. Ely,
Z. T. Ely, Jas. McQuestion and M. C. Thompson, if any, and.
showing how much is due and owing by defendants B. F.
Haddock, D. J. Ely and Z. T. Ely, to complainant Harper,
on account of the rents which they, or any of them, have or
should have received.
Proof was taken by the master, and he made a report to
the court, which is very lengthy, and which states the ac-
1873.J Harper et al. v. Ely et al. 583
Opinion of the Court.
counts in detail. After deducting all moneys received on ac-
count of rents, he finds, and thus reports the amount due D.
J. & Z. T. Ely, which is a lien on the property, $9951.63.
To this report the complainants filed six exceptions, and
the defendants filed three exceptions, all of which were over-
ruled by the court, and a decree rendered requiring com-
plainants to pay within sixty days to D. J. & Z. T. Ely,
said sum of $9951.63, and upon payment, possession of
the premises should be surrendered, and in default of pay-
ment the bill be dismissed. The complainants have appealed
and assign various errors.
It is insisted that Haddock and his grantees were trespas-
sers in possession of the property, and in stating the account
they should not be allowed for taxes and insurance paid, and
that they should be held responsible for the highest rental
value of the premises.
"We do not regard this position as tenable. When Bradley
failed to pay the interest upon the debt due Haddock, se-
cured by trust deed, Haddock, according to the terms of the
contract between him and Bradley, declared the whole debt
due, sold the premises and took possession. When the
case was before this court before, the sale was held void, on
the ground that Haddock was virtually the purchaser at his
own sale, and that Ely, the grantee' of Haddock at the time
he purchased, had notice of facts sufficient to put a prudent
man on inquiry, in regard to the fraudulent sale, and hence
it followed that the sale and subsequent conveyance to Ely
should be set aside.
This left Ely, who held the mortgage debt against Bradley,
in possession of the mortgaged property. The question arises,
what are his rights and relations in regard to the property.
The complainants caused the sale to be set aside; that left
the mortgage debt standing in full force, as if no sale had oc-
curred. Bradley, the mortgagor, was in default in the pay-
ment of the mortgage debt. By the terms and conditions of
his contract, the whole debt was due. Ely, the owner of the
584 Haeper et al. v. Ely et ah [Sept. T.
Opinion of the Court.
debt, was rightfully in possession as mortgagee for condi-
tion broken, and not as a trespasser.
The fact that a fraudulent sale was made, does not give the
mortgagor any greater rights than he otherwise would have,
had no sale been made. The sale having been fraudulent and
set aside, leaves the mortgagor in the same position as he
was before the sale. Roberts et al. v. Fleming et al. 53 111.
200.
In regard to the taxes and insurance, we understand that
it is expressly provided in the deed of trust, that, if the
mortgagee has to pay the taxes, they shall become a part of
the mortgage debt. The mortgage required Bradley to keep
the building on the property insured, and if he neglected to
do this, there can be no doubt but the mortgagee would have
the right to keep the property insured, and make the rent pay
it. This brings us to the question of rent. In referring the
cause to the master in chancery, the court directed him to
report what rents had actually been received, and what could
have been received by the exercise of reasonable care and
diligence. This was the correct basis upon which to deter-
mine the amount of rents with which the defendants should
be charged, as has been repeatedly held by this court in this
class of cases. McConnel v. Holobush et al. 11 111. 69 ; Roberts
et al. v. Fleming et al. 53 ib. 204.
It is claimed by appellants that the court erred in allowing
the Thompson and McQuestion debt.
This debt was secured by a prior trust deed on the prem-
ises, and Ely, in order to protect his interest under the mort-
gage, under which he claimed, was compelled to discharge
this lien.
We apprehend there can be no doubt but a mortgagee is
entitled to be repaid all sums he may advance for the purpose
of removing a prior incumbrance from the mortgaged prop-
erty. The fact that Ely paid off or purchased this debt,
which was a prior lien on the land, could work no hardship
on the complainant. It was a subsisting debt, and a lien
1873.] Harper et ah v. Ely^ at. 585
Opinion of the Court.
upon the mortgaged premises, and had to be paid, and
whether complainants are required to pay it to Ely, or the
original holder, can not, in anywise, prejudice their rights.
But this debt was also secured by the Haddock mortgage, as
well as a prior deed of trust, and may be regarded as a part
and parcel of the mortgage debt from which complainants
are seeking to redeem. In either event, however, we regard
the decision of the circuit court, on this point, correct, but it
is said, ten per cent interest ought not to be allowed Ely on
this claim, after it came into his hands. The claim drew ten
per cent interest in the hands of the original holder, and when
Ely bought or paid it, in equity he was subrogated to the
rights of the original holder of the claim; and when the orig-
inal creditor, by the terms of the contract, was entitled to ten
per cent interest, we fail to see upon what principle Ely
would not be entitled to the same.
Appellants claim the court erred in refusing to render a
decree giving complainants possession. The answer to this
is obvious. Appellee was in possession as mortgagee ; he had
the right to hold the possession of the mortgaged property,
until his debt was paid and discharged.
The next point made by appellants is, that the court erred
in requiring them to pay costs. In this, the court was cor-
rect. We can only regard the bill of complainants as a bill
to redeem ; it was so treated when in this court before, and
we see no reason for regarding it otherwise now.
It is a well settled rule that, on a bill to redeem, the costs
are adjudged against the complainant.
This disposes of the questions necessary to be considered
raised by appellants, except, it is urged, the evidence before
the master in chancery did not justify the report by him
made. We have examined the evidence with as much care
as our time from other duties would permit, and we are not
able to agree with the counsel for appellants.
We think the evidence not only justifies the report of the
master, on the points raised by appellants, but fully sustains it.
586 Harper et at. v. Ely et al. [Sept. T.
ODinion of the Court.
Appellees have assigned three cross errors :
First. The master's report, which was approved by the
court, does not allow appellees interest on the coupons at-
tached to the bond given by Bradley to Haddock.
Second. Appellees were not allowed $300, as shown by
the ledger to have been by them expended and not other-
wise proved.
Third. Appellees were not allowed commissions for col-
lecting the rents and taking care of the property.
In regard to the first cross error assigned, we are of opinion
the point is well taken. The coupons provide for the pay-
ment of a definite sum of money at a specified time. Thev
are in writing, and in effect are promissory notes, and we are
aware of no reason why interest should not be computed upon
them after they became due. Gilpech v. City of Dubuque, 1
Wall. 206; Hollingsioorth v. City of Detroit, 3 McLean, 472;
Dunlap v. Wiseman, 2 Disney (Ohio), 398.
This being a bill to redeem, appellants are in no position
to insist that a court of equity should grant the relief asked
without a full payment of all that is due appellees according
to the terms of the bond and attached coupons, even if they
could not legally claim interest on the coupons.
In regard to the second point made, we think the court
decided correctly. Appellees were notified by appellants to
produce their books. They produced the ledger, but the
books of original entry were not produced. Upon the pro-
duction of the ledger, appellants contended that was not the
book appellees were notified to produce. They, however, ex-
amined it, with a view to determine whether they would offer
it in evidence, and appellees insist that the ledger became
and was competent evidence, because it was examined by
appellants. We are of opinion the ledger was not competent
evidence, for the reason it was not the book appellees were
notified to produce. Whether the book of original entry
would have been evidence, if produced and inspected by appel-
lants, we do not now decide, as that question is not before us.
1873.] Kane v. Footh. 587
Syllabus.
As to the third cross error assigned, we can not agree with
appellees. We do not think appellees are entitled to commis-
sions for collecting rents and looking after the property.
When they were compelled to pay fees for collecting rents,
this was allowed them ; further than this, justice does not re-
quire that they should be paid.
The decree will be so modified as to allow appellees interest
on the coupons attached to the bond given by Bradley to
Haddock. In all other respects it will be affirmed.
Decree modified.
Thomas Kane
v.
Simon Footh.
1. Limitation — seven years1 'payment of taxes and possession. When a
person takes possession of land through a tenant, after receiving a sheriff's
deed, which is color of title, the limitation under the eighth section of
the Conveyance act of 1845 will commence running at the date of his first
payment of taxes thereafter, and the bar will be complete upon payment
of all taxes for seven successive years and possession.
2. Same — possession, how shown. Possession of land under the limita-
tion laws may be shown in different modes. It may be by inclosure, by
cultivation, by the erection of buildings or other improvements, or by
any visible, open use clearly indicating its appropriation and actual use
by the person claiming to own it.
3. Practice — special verdict. It is a matter of discretion with the
court to instruct the jury to find a special verdict in respect to disputed
facts, and error can not be assigned upon the refusal of the court to so
instruct.
4. Statute — whether word "may" means "must." The word may in a
statute will be construed to mean must or shall, when the rights of the
public or third persons depend upon the exercise of the power given, or
the performance of the duty to which it refers. Such is its meaning in
all cases in which the public alone have an interest, or a public duty is
imposed upon a public officer. In other cases it does not always mean
shall or must.
588 Kane v. Footh. [Sept. T.
Opinion of the Court.
Appeal from the Circuit Court of Kane county; the Hon.
Silvanus Wilcox, Judge, presiding.
Mr. James O. McClellan, for the appellant.
Messrs. Botsford, Barry & Lovell, for the appellee.
Mr. Chief Justice Breese delivered the opinion of the
Court :
This was an action of ejectment, in the Kane Circuit Court,
wherein Thomas Kane was plaintiff and Simon Footh defend-
ant, to recover the possession of the east half of the north-
west quarter of section nine, in township forty north, in range
six east, of the third principal meridian. The cause was tried
by a jury, and verdict for the defendant, on which the court,
after overruling a motion for a new trial, rendered judgment
against the plaintiff for the costs. To reverse this judgment
the plaintiff appeals.
On the trial, the plaintiff deraigned his title from a patent
from the United States to one Patrick Sheridan, dated June
1, 1850, and no exception was taken thereto.
The defendant claimed under a tax deed from the sheriff
of Kane county to one James Ferson, dated January 12, 1865,
on a sale for taxes made in 1859, and a deed from Ferson to
himself, dated September 22, 1866. Defendant also exhibited
a receipt for taxes paid by himself, dated February 13, 1865,
and the following years to 1871, inclusive. Defendant proved
that, after the purchase by Ferson, he rented the land to one
Lorenzo Ward, who used the same as a pasture lot for several
years ; that the land was inclosed by a fence, not in good
repair, and ever since his purchase it had been in his actual
possession.
The only question raised on the record is, does the proof
show a concurrence of color of title, payment of taxes under
that color, and possession for seven consecutive years, to en-
able the defendant to defend under the eighth section of the
1873.] Kane v. Footh. 589
Opinion of the Court.
act of 1845, title "Conveyances," ch. 24. In other words,
has the defendant established the bar of the eighth section of
this statute?
The sheriff's deed to Ferson, it is conceded, was color of
title. That deed bears date January 12, 1865. The first
taxes paid thereafter were paid by Ferson, on the thirteenth
February, 1865. From this date the statute began to run,
and the evidence shows the taxes paid by appellee the suc-
ceeding years, to January 19, 1871. This completes the seven
years' payment of taxes.
The remaining inquiry is, was the actual possession by ap-
pellee and his grantor for the requisite period.
The land was purchased at a sale for taxes in 1859, and
was rented by the purchaser to Lorenzo Ward, who inclosed
it with his own land, and used it as a pasture lot for two
years. In January, 1865, when the sheriff's deed was made
to Ferson, the land was in this condition. This court has
often held that it is not necessary, to create the bar of this
section, that the person claiming the land should actually
reside on the land or cultivate it.
In Truesdale v. Ford, 37 111. 210, it was said, that posses-
sion of land may be shown in different modes. It may be by
inclosure, by cultivation, by the erection of buildings or other
improvements, or by any visible, open use, clearly indicating
its appropriation and actual use by the person claiming to
own it. To the same effect are Blanchard v. Pratt, ib. 243,
and Paullin v. Hale, 40 ib. 274. These are questions for the
jury, and as they have found an actual possession in Ferson,
the grantor of appellee, and in appellee, for the requisite
period, and, as we think, properly, we can not disturb the
verdict. The bar of the eighth section was complete.
The refusal to give this instruction is assigned as error :
" The court instructs the jury to render a special — that is,
to state in the verdict from what date the land in controversy
has been in the exclusive and actual possession of the defend-
590 Kane v. Footh. [Sept. T.
Opinion of the Court.
ant, if the jury believe, from the evidence, that the defend-
ant has been in the exclusive and actual possession of the
land in controversy at all."
This involves the construction to be given to section 51,
of the act of February 3, 1872, entitled "An act in regard to
practice in courts of record." That section is as follows :
"The court, in charging the jury, shall only instruct as to the
law of the case; and the court may, at the request of either
party, require the jury to render a special verdict upon any
factor facts in issue in the cause; which verdict shall be
entered of record, and proceedings had thereon as in other
cases. When the special finding of the fact is inconsistent
with the general verdict, the former shall control the latter,
and the court shall give judgment accordingly." Sess. Laws
1872, p. 338.
Appellant contends that this statute was designed to be
imperative, and that the word "may" should be construed
"shall."
It has been long settled by this court, that "may" will be
construed to mean "shall," whenever the rights of the public
or of third persons depend upon the exercise of the power or
the performance of the duty to which it refers. That such is
its meaning in all cases where the public alone have an inter-
est, or a public duty is imposed upon a public officer, there
is no question. It is so where the public or a private indi-
vidual has a claim dejure, that the power shall be exercised.
This was said in Schuyler County v . Mercer County, 4 Gilm. 20,
and repeated in several other cases in this court, the last of
which, Chicago and Alton Railroad Company v. Howard, 38
111. 414, was a qui tarn action, brought under the act of No-
vember 5, 1849, for failure to ring a bell or sound a whistle,
as required by that act. Section 42 of the act provides, that
the penalty may be sued for by the State's attorney; but the
38th section provides, that a common informer may sue in
his own name, as well as on behalf of the people, to recover
1873.] Greenbaum v. Austrian. 591
Syllabus.
the penalty. It was held, the right of the public to sue under
the forty-second section, and that of an informer under the
thirty-eighth section, depended upon which should first com-
mence suit, and that construing the word "may," in the
forty-second section, into the word "shall," would be a mis-
application of the rule, as the public had not the sole right
to the penalty, unless they shall first sue for its recovery.
In the case before us, we do not perceive that the public,
as such, have any interest, nor is there a duty imposed upon
an officer, nor do the rights of the parties demand that "may"
shall be made to mean "shall," in order that the jury may be
enabled to render a just verdict. It is discretionary with the
court to give this direction to the jury.
As to the instructions, we have no fault to find with them.
There being no error in the record, the judgment must be
affirmed.
Judgment affirmed.
Annie A. Greenbaum
v.
Soloman Austrian.
1. Dower — when it attaches. The widow of one who, in his lifetime,
had made a contract to purchase land, but had not paid the entire pur-
chase money, is not entitled to dower in such land when there is not suffi-
cient personal estate of the deceased, out of which to complete the payment
of purchase money.
2. If, however, there is personal estate in the hands of the administra-
tor, and he completes the payment of the purchase money, then the
widow's dower will attach.
3. Same — what necessary to create, when the heirs perform the contract
after the death of the ancestor. Where a party made a contract for the pur-
chase of land, and died before making full payment, if his heirs complete
the payments, it is incumbent upon the widow to contribute her relative
portion of the purchase money remaining unpaid at her husband's death,
to entitle her to dower in the land.
592 Greenbaum v. Austrian. [Sept. T.
Opinion of the Court.
4. Contract — rescission or specific performance, when minors are inter-
ested. Where a contract for purchase and sale of land was entered into
between two parties, and, before it was performed, the vendee died, leav-
ing minor heirs, and the vendor filed a bill against the administrator and
the guardian of the heirs, asking for a specific performance or a rescission
of the contract, as the court might direct, the court should act for the
best interest of the heirs; and if a rescission of the contract would best
promote their interest, a decree to that effect should be entered. If, on
the other hand, it would best promote the interest of the heirs, and the
guardian has sufficient funds, the court should order him to pay the bal-
ance of the purchase monej^ and take a deed to the heirs, or the court
should order that the interest of the heirs in the contract be offered for
sale, and if it brought more than the sum the heirs would have to pay,
that it be sold, and if not, then that the contract be rescinded.
5. But, in such case, where the personal estate of the deceased is not
sufficient to pay the purchase monej^, and the vendor insists on a specific
performance, the court Mill order the unconditional sale of the interest
of the heirs in the contract.
6. Bill for specific performance — when prematurely brought. When
the vendee was to pay for the land within two years from the date of the
contract, and he died soon after, and it appeared that there was not suffi-
cient of his personal estate to make the payment provided for in the con-
tract, a bill filed by the vendor against the heirs and administrator for a
specific performance or rescission of the contract, before the expiration of
the time fixed for payment by the contract, is premature ; such bill can
only be filed when the heirs are in default, and there can be no default
until the time for payment has expired.
Appeal from the Superior Court of Cook county.
Messrs. Moore & Caulfield, for the appellant.
Mr. Geo. Gardner, for the appellee.
Mr. Justice Walker delivered the opinion of the Court:
It appears that Soloman Austrian, H. H. Walker and
Jacob Greenbaum purchased 30 acres of land of A. V. Win-
ston, for the sum of $30,000. The conveyance was made to
Austrian. He paid on the purchase $10,000, and Greenbaum
had his own note discounted, and paid $5000, being one-third
of one-half of the purchase money. There was some arrange-
ment between Austrian and Walker, which is immaterial in
1873.] Greenbaum v. Austrian. 593
Opinion of the Court.
this proceeding. Austrian gave his note to Winston for
$15,000, the balance of the purchase money, due in two years,
and it was agreed that Greenbaum should pay Austrian the
further sura of $5000 within two years, for which he gave his
note, and Austrian was to convey to him one-third of the land.
Within six months Greenbaum died intestate. After his
death, and after the maturity of the note which had been dis-
counted to raise money to make the first payment, Walker,
who had indorsed for Greenbaum, paid and took it up, and
Austrian paid the amount to Walker, and received the note.
The estate of Greenbaum is solvent, but it consists of real
estate, there not being enough of personal property to pay
the debts. The claim of Austrian has not been presented or
allowed against the estate. The bill offers to convey one-
third of the land to the widow or the heirs, upon their pay-
ing the purchase money to Austrian. The last note had not
matured when the bill was filed. There was but one witness
as to the value of the property, and that was Walker, who
fixes it at about double the sum it cost. It also appears that
Austrian had offered, both to the administrators and the guar-
dian of the heirs, to convey on the payment of the purchase
money. The court decreed that, unless the money due on
both notes should be paid, with the accrued interest, on or
before the 16th day of June, 1873, then the widow and heirs
should be forever barred and foreclosed from all right to a
specific performance of the agreement; but if the money
should be paid within that time, Austrian should make a con-
veyance according to the agreement.
The bill was filed one year and five days after the agree-
ment was entered into, and the decree was rendered some six-
teen or seventeen days before the second payment fell due.
The note was given on the 15th of June, 1871, and was pay-
able two years after date. The bill was filed on the 20th of
June, 1872, and the decree was rendered on the 29th of May,
1873. It is urged that the decree is erroneous, and should
be reversed. The widow, who appeals, insists that the court
38— 70th III.
594 Greenbaum v. Austrian. [Sept. T.
ODinion of the Court.
should have decreed a specific performance of the agreement,
and that the administrators or the guardian for the minors
should pay the purchase money, and that dower should have
been assigned to her.
Appellee offers to perform the contract, or rescind it, as may
be determined by the court. In such a case, the court should,
and always will, act for the best interest of the heirs. If the
evidence had shown that their interest would be promoted by
a rescission, then such a decree should be rendered. If, on
the other hand, it had appeared that it would have been for
the benefit of the heirs, and they had sufficient personal
property for the purpose, the court would have decreed that
the guardian pay the money due on the purchase, and receive
a conveyance to the heirs. Or the court should have directed
that the interest in the contract to purchase, by Greenbaum,
should be offered for sale, and if more than the sum due on
the purchase should be offered, that it then be sold, or if it
failed to bring that amount, that the contract should be re-
scinded. But had Austrian insisted upon a specific perform-
ance of the contract, the court would then have been required
to have decreed the unconditional sale of Greenbaum's inter-
est in the property, inasmuch as there was not personal estate
out of which it could be paid. But, as Austrian had given
the option to either perform or rescind, the court was at full
liberty to act for the best interests of the heirs.
But the widow claims that a specific performance should
have been decreed, that her dower right might have been
protected. We fail to see that she has any. At most, this
is but a contract to purchase, and unless Greenbaum, in his
lifetime, had paid the entire purchase money, and had thus
become invested with an equitable fee, no right to dower
attached at his death, and were the guardians required to per-
form the contract, the widow would have to advance her
ratable portion of the unpaid purchase money, to become
endowed in the premises. Equity and justice require this.
The heirs should not be compelled to pay their money to
1873.] Greenbaum v. Austrian. 595
Opinion of the Court.
acquire lands, and then endow the widow in them. This would
be manifestly unjust, as must be apparent to all persons.
Had the administrators been possessed of money of the
estate, and had paid this purchase money and perfected the
title, then the widow would have had dower in the land, for
the obvious reason that funds would have been thus paid,
one-third of which would have been her's, if not used for this
purpose. But a court will never decree the sale of lands of
the estate subject to the widow's dower, to pay the balance
of the purchase money, simply to give her dower in the lat-
ter, as well as the tracts of land sold for the purpose. If
such a sale were made, to perform the agreement, the widow
would no doubt be required, before the sale, to elect in which
she would take dower. She could not be endowed of both,
unless she should contribute, of her own means, a proper
proportion of the purchase money to perform the contract.
But in this case the bill was filed and the decree was ren-
dered prematurely. The balance of the purchase money was
not due even when the decree was rendered. The note was
due in two years from date, whilst the bill was filed but a
little more than one year after, and the decree was rendered
some fifteen days before the maturity of the note. There is
no doubt but Greenbaum's heirs had the right to have the
contract performed according to its terms, and hence no de-
cree could have been properly rendered before the expiration
of the time they were required to pay, and not then, unless
the original bill had been amended, showing that the heirs
were in default. They could not be in default until the time
had arrived when they were bound to perform their father's
agreement. Had they filed a bill or a cross-bill, and Austrian
had consented, then the contract could, on a proper showing,
have been rescinded before the purchase money fell due, but
not alone on this bill.
And for this error, the decree of the court below will be
reversed, and the cause remanded with leave for complainant
to amend his bill. t-. 7
Decree reversed.
596 Eising et ux. v. Care. [Sept. T.
Opinion of the Court.
Anson Rising et ux.
V.
James H. Cake.
1. Res adjudicata. When a cause has been once determined, on its
merits, in the Supreme Court, and remanded to the inferior court, and a
decree is there rendered in conformity to the decision of the Supreme
Court, an appeal from that decision will not be considered.
2. Such a proceeding is simply an effort to induce the Supreme Court
to review its former judgment, which can not be done in that way.
Appeal from the Circuit Court of Jo Daviess county; the
Hon. William Bkown, Judge, presiding.
Mr. D. W. Jackson, for the appellants.
Mr. James H. Cape, pro se.
Mr. Justice Scott delivered the opinion of the Court :
This cause was before this court at a former term. A brief
history of the litigation between these parties, and a statement
of the facts presented by the record, will be found in the
opinion then delivered. Carr v. Rising, 14 111. 62.
Two causes between these parties, involving the same subject
matter, were submitted together. The former decree, holding
the deed, though absolute in form, a mortgage, and declaring
the right of homestead in the premises did not exist, was
modified, by the decision of this court, so that the decree, so
far as it held the deed a mortgage, was reversed, and the
remaining portion was affirmed. The latter decree, based on
the former finding, directing an account to be taken, and
permitting appellants to redeem on payment of the amounts
found due, was reversed.
On the remittitur from this court being filed, appellants, by
leave of the circuit court, exhibited their amended bill, not
materially different from the original bills.
1873.] Rising et ux. v. Carr. 597
Opinion of the Court.
The scope of the bill, as amended, is, in general terms, that
appellee holds the property as mortgagee, and prays that an
account be taken, and appellants have the privilege of re-
deeming. Appellee, by his answer, claims, in substance, this
matter is res adjudicata, by the decision of this court, and
also denies he holds the property as mortgagee, but alleges he
made an absolute purchase of it at the time it was conveyed
to him.
On the former hearing, the cause was reversed, for the rea-
son, as the court say in its opinion: "Upon a careful exam-
ination of all the testimony in the case, we are satisfied it
fails to establish the fact, as claimed, the deed was given as
security, in the nature of a mortgage ; but, on the contrary,
we are convinced that it was intended to be absolute."
Conceding, as claimed, it was regular, under the rule
announced in ChioJcering v. Failes, 29 111. 294, where there is a
reversal of a decree, with general, but no specific, directions
as to the decree that shall be entered, for the party to amend
his pleadings and offer new evidence, yet it does not appear
the right to claim equitable relief in this case was placed
upon any other or different ground than that stated in the
original bills; nor does the additional evidence introduced
materially strengthen the cause of appellants. The new evi-
dence preserved in the present record is mainly cumulative
to that contained in the former — is principally produced by
the examination of the same Avitnesses, and is upon the identi-
cal point determined in the previous decision, viz: whether
the deed is a mere security, in the nature of a mortgage.
We regard it as simply an effort to induce this court to
reconsider its former judgment. We have neither the power
nor inclination to permit that to be done in this way. It
could only be done on petition for rehearing, in the manner
prescribed by the rules of this court.
Upon a full and patient investigation, we have once deter-
mined that the deed made by Myers to appellee was not a
mortgage, but an absolute deed, subject to no defeasance
598 Kellogg v. Hastings. [Sept. T.
Opinion of the Court.
whatever. The present record presents no additional facts
that would make it equitable that appellant should have the
relief sought, nor is any good reason shown for not regarding
the former decision as conclusive of the rights of the parties.
The decree must be affirmed.
Decree affirmed.
Aetemas B. Kellogg
V.
Hieam Hastings.
1. Mistake — in description of land sold, This was a bill in equity, to
reform a deed of land, for mistake in the description. The court reviews
the facts and circumstances, from which it finds that there was a mistake.
2. Where a certain tract of land is, in fact, sold and purchased, and is
so conveyed, the deed can not be reformed, so as to make it convey a
different piece, on the mere fact that the grantor, at the time, owned the
latter, and not the former tract.
Appeal from the Circuit Court of Cook county ; the Hon.
Erastus S. Williams, Judge, presiding.
Mr. FpvANCIS Adams, for the appellant.
Mr. Sidney Smith, for the appellee.
Mr. Justice Sheldon delivered the opinion of the Court :
This was a bill filed by Hastings, the appellee, to correct
an alleged mistake in the description of premises in a deed
to him from Kellogg, the appellant.
The bill alleges that Kellogg, being the owner of the south-
east quarter of the south-east quarter of section 25, township
39 north, range 12 east of the third principal meridian, and
the east half of the north-east quarter of the south-east quar-
ter of the same*section, situate in Cook county, Illinois, and
intending and attempting to convey the same to Hastings,
1873.] Kellogg v. Hastings. 599
Opinion of the Court.
executed a warranty deed to the latter; but that there was a
mistake in the descriptive part of the deed, in this, that,
instead of describing the latter tract as the east half of the
north-east quarter of the south-east quarter of the section,
it, by mistake, described it as the south half of the north-east
quarter of the south-east quarter.
The court below decreed the relief prayed, and Kellogg
has appealed.
Kellogg owned the east half of the quarter quarter section,
and did not own the west half of the south half of the quar-
ter quarter section. He admits that there was a mistake
involved in the matter, but that the mistake was in his sup-
posing that he owned the south half instead of the east half,
and that the south half was the piece of land which was
actually purchased and sold, and so intended. Werq that the
case, it would conclude the question. If the south half was
the piece of land which was in fact sold and purchased, the
deed could not be reformed, so as to make it convey the east
half, on the ground that Kellogg did not own the former,
and did own the latter tract.
According to the testimony adduced on the part Kellogg,
he was, at the time of the making of the deed, in the actual
occupancy and cultivation of the entire south half, and had
it inclosed with a fence, built by himself, and the north half
of the east half, being the ten acres in question, was unculti-
vated, unoccupied and uninclosed. This is the only testi-
mony, aside from his own statement that he supposed he
owned the south half, upon which Kellogg relies to show such
a supposition on his part; and could the testimony be relied
on as the truth, it would be strong proof to show 'that
Kellogg was under the belief that the south half was the
tract which he owned, and that that was the tract which
was actually sold and purchased, and intended to be conveyed
by the deed; but, to say the least, there is an equal weight
of testimony, on the part of Hastings, that, at the date of the
deed, the east half of the quarter quarter was inclosed with
600 Kellogg v. Hastings. [Sept. T.
Opinion of the Court.
a fence; that Kellogg neither occupied nor cultivated the
west half of the south half, or had it inclosed with a fence,
but that Peck and Dwyer, the owners of it, had a field upon it,
which they cultivated, and that theirs was the only occupancy
of it.
We shall not go into a review of the conflicting testimony.
The undisputed facts of the case overbalance the testimony
on the side of Kellogg, and satisfy us, beyond reasonable
doubt, that Kellogg could not have supposed that the south
half was the one which he owned, and that that was not the
tract he sold and intended to convey, but that the east half
was the one.
The property, which was the subject of the sale, consisted
of a tavern stand and farm combined, being sixty acres of
ground, with a house kept as a hotel, and two barns and out-
houses. Either description includes all the buildings.
Kellogg resided there from the fall of 1840 to that of 1853,
when he made a written contract of sale to one Butler, who
then took possession, and, afterward, sold to Hastings, assign-
ing to hint the contract, and the deed was made to Hastings
as the assignee of the contract. All the remainder of the
section was owned by Peck and Dwyer, who purchased about
1848 or 1849. The twenty acres constituting this east half
was purchased by Kellogg and Peck in 1840, but the latter
having sold his interest, the canal deed was issued to Kellogg
in December, 1844. This deed described this east half, and
Kellogg paid taxes on this twenty acres, taking tax receipts,
for seven several years, describing it as the east half. The
south-east quarter of the same quarter section was purchased
subsequently by Kellogg, of the trustees of the Illinois and
Michigan canal, the deed having been issued to him in Octo-
ber, 1853.
It is extremely improbable that a practical farmer, having
so small a quantity of land, should purchase a forty-acre tract
of land, for his own use, adjoining a tract of twenty acres, upon
which he resided, and not know the location of the one tract
1-873.] Kellogg v. Hastings. 601
Opinion of the Court.
with reference to the other. The plats of the office at which
he purchased would have informed him of it, and so would a
plat of the section have shown it, which any one could have
made for himself who had ordinary knowledge of the congres-
sional sub-divisions of the public lands. The form of the
east half, or the south half of the north-east quarter of the
quarter section, would be that of a parallelogram eighty rods
long and forty wide, and it would be a material fact, likely
to be ascertained and known, whether its position with refer-
ence to the south-east quarter of the quarter section was
lengthwise or endwise. In the former case, the two tracts
would lie in a compact body, of regular shape; while in the
latter case, they would make an irregularly shaped piece of
land, with a notch in one corner, and the amount of fencing
required to inclose it would be considerably increased.
It is strange that Kellogg should have labored under the
mistake he claims, and stranger that other joint owners should
also have been equally mistaken with him, as they must have
been, in consistency with his position. Peck and he bought
the twenty-acre piece, the half of the quarter quarter, to-
gether, in 1840, and Peck retained his interest until in 1843.
Solomon Kellogg, the brother of appellant, was also inter-
ested with the latter in this twenty-acre piece until in 1852,
when he parted with his interest. Appellant testifies that he
and his brother Solomon, together, in the summer of 1843 or
1844, inclosed, with a rail fence, the field on the west half of
the south half, which appellant states as made and cultivated
by him. Here were these joint owners, Peck and Solomon
Kellogg, to correct any mistake which appellant himself
might have labored under in regard to the location of this
land.
One Taylor served Kellogg with a written notice that the
former had purchased the east half for the taxes of 1861.
This notice Kellogg sent to Hastings.
Hastings testifies that, in 1851 or 1852, before Kellogg sold
to Butler, he (Hastings) was out at Kellogg's place, and Kel-
602 Kellogg v. Hastings. [Sept. T.
Opinion of the Court.
logg wanted to sell it. Hastings said he would buy if Kel-
lo££ would take a house and lot in Chicago, which the former
owned. Kellogg said he would take it if they could agree;
that Kellogg did look at the house and lot, bu-t they failed to
agree. Hastings says, at that time Kellogg showed him his
farm, and told him how his land lay; that Hastings asked
him why he did not buy that twenty acres west, and make him
an eighty; that Kellogg said he had intended to do so, and
had an understanding with Peck and Dwyer that he should
have it, but they bought it, and would not let him have it.
Kellogg admits the conversation in regard to the purchase
of the land, but denies that he showed Hastings how the land
lay, or the shape of it, and also denies the talk with regard
to Peck and Dwyer. Three other witnesses — one the son of
Hastings, the other two entirely disinterested, so far as ap-
pears— testify to Kellogg having made to them, at separate
times, substantially the same statement with regard to Peck
and Dwyer, there being the same denial on the part of Kellogg.
It is quite improbable, they having advanced so far toward
a sale and purchase of the farm, and being there on the spot,
that Kellogg should not have pointed out the land to Hast-
ings, and how it lay.
Hastings, since the date of the deed, has paid all the taxes,
and all his tax receipts describe this piece as the east half,
except the one for 1870, which describes the south half as
"assessed as east half," and the receipt for 1870 describes
the south half.
Immediately upon the execution of the deed, Hastings
went into the possession of the east half, and, in the follow-
ing summer, rebuilt, as he and his son testify, the old fence
around the east half, and ever since has had that entire tract
under fence. Kellogg was frequently at the place — must
have known of the occupancy and improvement, by Hastings,
of this east half; and if Hastings was on the wrong half, as
Kellogg must have seen that he was, according to Kellogg's
1873.] Kellogg v. Hastings. 603
Opinion of the Court.
alleged supposition, Kellogg would naturally have informed
Hastings of his mistake.
If the north half of the east half was vacant and unin-
closed, and the entire south half was inclosed and cultivated
by Kellogg, as he claims, and he supposed he owned and was
really selling the south half, how came Hastings to go into
the possession of the east half instead of the south half?
How could it come that Hastings should have got a different
idea from Kellogg of what was the subject of the sale? We
perceive no reason why their understanding should not have
been alike. Hastings clearly supposed he bought the east
half. He must have derived his understanding from his own
observation of the improvements, and from what Kellogg
communicated to him, as well at the time of the negotiation
for the purchase, in 1851 or 1852, as afterward, and what he
may have learned from Butler.
Kellogg states that he was first informed of the mistake
about the 20th or 24th of June, 1871. A deed was executed
by Kellogg to Crawford, a brother-in-law, of this east half,
bearing date June 24, 1871, for the expressed consideration
of $2000. It is admitted by Kellogg that the consideration
is only nominal, and that the deed was made in trust for the
wife of Kellogg, though it is absolute on its face. This deed
would seem to indicate a consciousness of a just claim on the
part of Hastings to this land, and an attempt at its defeat by
placing the property out of Kellogg's hands into those of an
apparent purchaser for value.
The deed conforms to the written contract. There suffi-
ciently appears to have been a mistake in the contract, of a
single word, in describing this twenty acres, using the word
"south," instead of the word "east." The mistake is a
natural one, liable frequently to occur, as observation proves.
The person who drew the contract is dead, as are also Peck
and Dwyer, who owned the remainder of the section and the
west half of this south half. A son of Peck, who was quite
604 Munn et al. v. Burges et al [Sept. T.
Syllabus.
familiar with the land, gives his testimony in support of
Hastings' claim.
We are mindful of the rule which has been urged upon our
attention in the argument, requiring great clearness of proof
in such cases; but, as before intimated, we think its require-
ment has been met in this case, and that the decree of the
court below was justified by the evidence.
The decree is affirmed.
Decree affirmed.
John Munn etal.
"Walter S. Burges et al.
1. Trustee — presumed to perform his duty. The presumption is, that
parties charged with a trust perforin their duty, until the contrary appears ;
and when an act is susceptible of two opposite constructions, one consist-
ent with innocence and fidelity to duty, and the other the reverse, the law
presumes in favor of innocence and fidelity to duty.
2. Same — right to deal with trust property for his own benefit. A trustee
is only prohibited from dealing with the trust property for his own ben-
efit so long as the trust continues, and as soon as the trust ceases, he occu-
pies the same relation to the trust property that a stranger to the trust
does, and, acting in good faith, may become the owner of the property,
by purchase or otherwise.
3. Same — duties under a mortgage with power of sale. When the mort-
gagee, in a mortgage authorizing a sale and conveyance by him, makes
such sale in compliance with the terms of the mortgage, and conveys the
premises to the purchaser in good faith, and without any previous ar-
rangement between him and such purchaser for a reconveyance, his duties
as trustee, in regard to the mortgaged property, are ended, and he is at
liberty to deal with the purchaser in relation to the property in good faith,
the same as if such purchaser had derived title through some other source.
4. Same — title acquired under sale made by him — whether void or merely
voidable. If the mortgagee, with power of sale, sells and conve}^s under
the mortgage to another, with the understanding that the purchaser is to
convey to him, and the purchaser does so convey, the title thus acquired
will not be absolutely void, but voidable only; and in such case, if steps
1873.] Mtjnn et al. v. Bueges et al 605
Syllabus.
are not taken by the owners of the equity of redemption, upon knowledge
of the fact coming to them, ratification of the sale will be implied.
5. Sale under a mortgage, with power to sell and convey—
ichether it can be made in the absence of the mortgagee. When a sale under
a mortgage is conducted by the attorney of the mortgagee, in his absence,
and the mortgagee, in whom the legal title as well as power of sale, coupled
with an interest, is vested by the mortgage, subsequently ratifies the sale
by making the necessary deed for the property, the mere fact that the sale
is conducted by the attorney in the absence of the mortgagee will not
render the title derived therefrom absolutely void.
6. The mortgagee may convey to the purchaser in his own name, when
the mortgage expressly authorizes him to do so.
7. Notice — recitals in a deed of facts which may or may not amount to
a fraud. The recitals in a deed, of a fact which may or may not, accord-
ing to circumstances, amount to a fraud, will not affect a purchaser for a
valuable consideration, denying actual notice of the fraud, nor will cir-
cumstances amounting to a mere suspicion be deemed notice.
8. Same — possession of land — notice. The possession of land is notice
of the extent and character of the claim of those holding possession, and
nothing more.
9. In a suit between two parties in relation to the title to land in the
possession of a third party, who claims adversely to both of them, such
adverse possession is notice of nothing more than the extent and character
of the claim of such adverse occupant.
10. Laches. In 1856 the complainant executed to one of the defend-
ants a mortgage, to secure the payment of certain promissory notes, the
last of which became due in four years ; the mortgage contained a power
of sale. Default was made in the payment of the last note, and the mort-
gagee gave notice and sold, in compliance with the mortgage, in 1862.
A short time after the deed was executed to the purchaser, he reconveyed
to the mortgagee, who, from that time forth, claimed to own the property,
and sold portions of it at different times to other parties, who have held,
occupied and improved it — of all which complainant had notice. In 1869
the complainant filed his bill, asking to be allowed to redeem from the
mortgage, on the ground that the sale by the mortgagee to the purchaser,
and the reconveyance by the purchaser to the mortgagee, were made in
pursuance of an agreement entered into between the mortgagee and pur-
chaser before the sale; that such conveyances were to be so made with
the view of fraudulently depriving the complainant of his equity of re-
demption, and that the same were for that reason void : Held, that without
reference to any other questions involved in the case, the complainant
had been guilty of such laches, in asserting whatever rights he may have
had in the property, as must, of itself, preclude his right to recover.
606 Munn et al. v. Burges et al. [Sept. T.
Opinion of the Court.
Appeal from the Superior Court of Cook county; the Hon.
Joseph E. Gary, Judge, presiding.
Mr. F. Q. Ball, Mr. J. S. Page, Messrs. Sleeper & Whi-
ton, and Messrs. Goudy & Chandler, for the appellants.
Mr. John Borden, for the appellees.
Mr. Justice Scholfield delivered the opinion of the
Court :
This is an appeal from a decree of the Superior Court of
Cook county, allowing the complainants to redeem from a
certain mortgage.
The substance of the bill is, that on the 30th day of May,
1856, Burges, one of the complainants, executed a mortgage
to Munn, one of the defendants, on lots 16 and 28, of the
subdivision of the south-west quarter of section 12, town-
ship 39 north, range 13 east, in Cook county, to secure the
payment of $19,000, evidenced by six promissory notes : one
for $1100, due in thirty days, one for $1100, due in sixty
days, and four others for $1200 each, due, respectively, in
one, two, three and four years from date; that all of the notes
were paid except the note last due, and a small balance on
the one due three years from date; that on December 1,
1858, Burges sold and conveyed the undivided half of his
equity of redemption to the complainant Payton ; that in
1862, defendants Munn, Fitch and Page confederated together
and agreed to defraud complainants of their equity of redemp-
tion, by pretending the property was sold under the terms of
the mortgage, and bought by Fitch, who was to receive a
deed therefor, in his own name, and subsequently reconvey
to Munn ; that, in pursuance of such confederation and agree-
ment, they did pretend the property was sold on the 10th day
of July, 1862, by Munn to Fitch ; that Munn, on the 22d
day of September, 1862, executed and delivered to Fitch a
deed for the property, bearing date August 8, 1862, falsely
1873.] Munn et.al v. Burges et ql. 607
Opinion of the Court.
pretending and reciting,, that, for default of payment of the
balance due on the mortgage, he had, on the 10th day of July,
1862, made sale of the property to Fitch, for the sum of $5000,
bid for the same and paid to him by Fitch, and conveying
the property to Fitch, and thereby purporting and pretending
to cut off the equity of redemption therein of complainants,
and vest in Fitch an absolute title; that Fitch, at the same
time, executed and delivered to Munn his quitclaim deed,
bearing date September 8, 1862, reconveying the property to
him, for the consideration, as expressed in the deed, of one
dollar and other valuable considerations; that both deeds
were taken to the recorder's office in Cook county, and there
filed for record by Page, and, after they were recorded, they
were taken out of the office by Fitch, and either retained by
him or sent to Munn. It is denied that any sale was, in fact,
made of the property, and is averred that the deeds were exe-
cuted and delivered in pursuance of the fraudulent agreement
to defraud complainants of their equity of redemption. It is
claimed that, after the execution and delivery of the deeds,
the title remained in Munn as mortgagee simply, and that
complainants were entitled to redeem.
Subsequent purchasers of the property are made parties de-
fendant with Munn, Fitch and Page, and charged with notice
of the real character, as claimed, of Mann's title.
The prayer is, that complainants be allowed to redeem from
the mortgage, and, in case redemption is not allowed, that
Munn, Fitch, Page and Watkins, or some one or more of
them, pay to complainants the present value of the property,
less what would be required to redeem, etc.
By an amendment to the bill, made subsequent to filing, it
is alleged that complainants have resided without the State
of Illinois ever since, as well as at the time of the execution
of the mortgage, and for the greater part of the time in the
State of Rhode Island ; that Burges has not been in Chicago
since long prior to 1862, and that Payton was not there, until
within a year prior to the filing of the bill, at any time after
608 Munn et al. v. Burges et ah [Sept. T.
Opinion of the Court.
1861 ; that after the year 1857, and up to and during the year
1862, times were hard, and it was difficult to raise money,
and although Munn had pressed them upon the mortgage in-
debtedness, they had not found themselves able to pay the
same ; that Payton, upon whom devolved the duty of paying
one-half of the indebtedness, failed, and conveyed away his
interest in the property, by way of mortgage, and also by
assignment for the benefit of his creditors ; that neither of the
complainants was advised of the deeds from Munn to Fitch
and Fitch to Munn, until within less than a year prior to fil-
ing the bill, and were not earlier advised that an invalid or
pretended sale of the mortgaged property had been made or
was claimed to be made, and that suit was brought as soon
thereafter as Payton could remove the incumbrances from his
interest. Complainants dismiss the bill as to Fitch, Page,
Watkins and Abbers;and the amendment concludes by re-
peating that no sale has been made of the mortgaged property
whereby complainants' equitable interest or right of redemp-
tion was cut off, and prays as in the original bill.
A further amendment was made, but it is not necessary to
state its substance, as it in nowise affects the merits of the
case, as we understand them.
Answers were duly filed, putting in issue the material alle-
gations of the bill and amendments, claiming that the present
owners had purchased the property in good faith, without
notice of the complainants' alleged equities, and insisting that
complainants were guilty of laches in not sooner prosecuting
their claim, and that they are barred by lapse of time, and
also claiming the benefits of the several statutes of limita-
tions.
On hearing, the court found that complainants were entitled
to redeem, and decreed that they be allowed to do so, upon
paying the amount due on the mortgage, together with the
amount paid for taxes, improvements, etc., after deducting
rents.
1873.] Munx et aL v. Burges et ah 609
Opinion of the Court.
Before proceeding to notice the principal questions which
have been discussed by the respective counsel, it may be well
to observe that the evidence preserved in the record wholly
fails to sustain the charge made in the bill, of conspiracy and
confederation between Munn, Fitch and Page, to defraud
complainants of their equity of redemption ; and this is tacitly
conceded by complainants, by their dismissal of the bill as to
Fitch and Page.
It is claimed by defendants, that the property was sold in
good faith on the 10th of July, 1862, in strict conformity with
the power contained in the mortgage; that Fitch bid it off
in good faith ; that the deed from Munn to Fitch was exe-
cuted and delivered in like good faith, and that the agreement
whereby Fitch consented to reconvey the property to Munn
was subsequent to the sale, and, therefore, in nowise affected
its validity.
It is not claimed by the complainants that proper notice of
the sale was not given, or that the sum bid by Fitch was
grossly inadequate to the then value of the property. His
bid was $5000, and it is conceded that the full cash value of
the property, at the time, did not exceed $6000. Nor is it
claimed that there was any combination to prevent bidding
at the sale, or any other fraudulent devices or practices re-
sorted to for the purpose of preventing or discouraging those
who might have desired to become purchasers from attending
the sale and bidding on the property, or for the purpose of
depreciating the value of the property.
The objection urged is, there was no sale in fact, because :
first, it was never consummated between the parties, and sec-
ondly, Munn was not present at the time of the sale, and the
power delegated to him by the mortgage could not be exercised
by an attorney in his absence.
The sale was conducted by the firm of Pucker & Page, re-
spectable attorneys and solicitors, then practicing in Chicago,
of whom Pucker seems to have given the chief attention to
the business. The notice given of the sale was more exten-
39— 70th III.
610 Munn ef al. v. Burges et al. [Sept. T.
Opinion of the Conn.
sive than required by the power, and, as Las already been
observed, no objection is taken to the manner in which the
sale was conducted, or that the amount bid was grossly inad-
equate to the value of the property. Munn resided at
Utica, New York, and seems to have acted under the advice
and direction of his legal counsel at that place, (one John
Cove) by whom the mortgage and notes were sent to Rucker
& Page, and under whose direction the sale was made. After
the sale was made, it was reported by Rucker & Page to
Coye, and by him to Munn. Munn approved and ratified
the sale, and executed the necessary deed to Fitch, which
was, by Coye, transmitted to Chicago.
Mann's evidence is positive that, at and prior to the exe-
cution of the deed by him to Fitch, there was no agreement
or understanding that he was to have the property. He says ;
"It is not true that it was understood all through said trans-
action, and especially at the time of the sale of the property
under the mortgage, or at the time of the execution by me to
Fitch of my deed therefor, that he was to take and hold the
property for me, and not for himself."
The deed, although dated on the 8th of August, 1862, was
acknowledged by Munn, at Utica, on the 2d of September,
1862 ; and the deed from Fitch to Munn was executed by
Fitch, at Chicago, on the 16th of September, 1862, and both
deeds were recorded on that day in the proper office in Cook
county.
Fitch, in giving his evidence, is equally as positive as
Munn that there was no agreement or understanding between
himself and Munn, or his attorneys, that he should bid the
property off for Munn. His version is, that his bid was made
in good faith; that the amount bid was all he then considered
the property worth ; that after the deed from Munn to him
was sent to Chicago, he learned there was some dissatisfaction
by Munn's friends, on account of the amount of his bid; that
he was requested to increase the amount, but declined to do
so ; that Rucker, who had conducted the sale, was his brother-
1873.] Munn et al. v. Burges et al. 611
Opinion of the Court.
in-law, and to avoid bringing censure upon him, and at his
request, after the deed was brought to him, he concluded to
reconvey the property to Munn.
If this be true (and there is no evidence contradicting it),
it is plain that when Fitch concluded to reconvey to Munn,
he was invested, by Munn's deed, with whatever title it was
in Munn's power to convey under that sale, and his act of re-
conveving to Munn was purely voluntary, and not in conse-
quence of any prior agreement or understanding between
them. When Munn executed the deed to Fitch, and placed
it beyond his control by causing it to be transmitted to Chi-
cago for Fitch, the delivery was complete, and his duties in
regard to the property as trustee were ended. Thompson v.
Candor, 60 111. 244.
From that time forth, Munn and Fitch were at perfect
liberty to deal with each other in good faith, in reference to
this property, with the same freedom as if Fitch had become
invested with the title through some other source. Jealous
as courts of equity are in watching over the conduct of the
trustee in connection with the objects of his trust, he is only
forbidden by them from dealing with the trust property for his
own benefit so long as the trust continues. The moment it
ceases, he occupies precisely the same relation towards it that
strangers to the trust do, and, acting in good faith, he may
then become its owner, by purchase or otherwise. Wortman
v. Skinner, 1 Beasley (N. J.) 371; Boehler v. McBride, 48 Mo.
507.
But even if Munn did become the purchaser at the sale,
through the aid of Fitch, to whom he conveyed, and from
whom he received his title, " such title would not be abso-
lutely void, but voidable only, and if immediate steps were not
taken by Burges and Payton, on their obtaining a knowledge
of the sale, to set it aside, a ratification by them will be im-
plied. Hamilton v. Lubuhee et al. 51 111. 416.
We might content ourselves, so far as the second objection
urged against the validity of the sale is concerned, by refer-
612 Munn et al. v. Bttrges et al. [Sept. T.
Opinion of the Court.
ring to the fact that it is not charged in the bill. There is
no allegation there that Munn was not present at the sale, and
that it was conducted by an attorney, in his absence; nor is
there an allegation of equivalent import. It has been repeat-
edly held by this court that the complainant must recover, if
at all, on the case made by his bill. Morgan v. Smith, 11 111.
200; White v. Morrison et al. 21 id. 17; McKay v. Bissett et al.
5 Gilm. 499.
But, assuming that the question may be regarded as prop-
erly before us, it is evident that the mere fact that the sale
was conducted by an attorney, in his absence, did not, under
the circumstances, render the title derived therefrom abso-
lutely void. Munn subsequently approved the sale, and rati-
fied it by making the necessary deed to the property. He
held a power, coupled with an interest, and the legal title
was vested in him by the mortgage. The objection that he
could not convey in his own name, is not tenable. The power
expressly authorized him to do so, and in this the case is
entirely different from that of Speer v. Hadduck, 31 111. 439,
cited by counsel for complainants.
The language of the power is: " But it is expressly pro-
vided and agreed that, if default be made, etc., * * * the
said party of the second part, his heirs, executors, adminis-
trators or assigns, after publishing notice, etc., * * * may
sell the said premises and all right and equity of redemption
of the said party of the first part, etc.; * * * and the said
party of the first part hereby specially covenants and agrees
to and with the said party of the second part, to waive his
right of equity of redemption, and further agrees that he will
neither assert nor claim any such right on a sale of the prop-
erty mentioned herein, by virtue of this mortgage; and the
said party of the second part to make, execute and deliver to
the purchaser or purchasers thereof a deed for the premises
so sold."
At most, the irregularity complained of in the sale only
rendered the title voidable, and an application to set it aside,
1873.] Munn et at. v. Burges et al. 613
Opinion of the Court.
for that cause, should have been made within a reasonable
time, and before the rights of innocent third parties inter-
vened.
The defendants, who are owners of the property, are remote
purchasers from Munn, and they deny all knowledge of the
irregularities in the sale, of which complaint is made, and
insist that they purchased in good faith, without notice of the
equities of complainants. Complainants seek to charge them
with such notice, first, by the record of the deeds from Munn
to Fitch and Fitch to Munn, and secondly, by the possession
of Standart and Hughes, at the time they purchased, who
occupied portions of the premises.
The only notice appearing from the record of the deeds
which is claimed to be of any importance, is, that the deed
from Munn to Fitch bears date some days subsequent to the
day of sale; that it was not acknowledged on the day it bears
date; that both deeds were recorded on the day of the date
of the deed from Fitch to Munn ; that they were recorded
consecutively upon the record, and that the deed from Fitch
to Munn is a quit-claim, and purports to have been executed
for the consideration of $1 and other valuable considerations.
This record likewise shows the mortgage from Burges to
Munn, and in the record of the deed from Munn to Fitch it
is shown that the terms of the power in the mortgage were,
in all respects, complied with, in conducting and carrying
out the sale. It shows that the sale was conducted by Munn,
and there is nothing recited from which it can be inferred
that this was not true. Fitch appears to have purchased as
a bidder at the sale, and the property is conveyed to him.
The deed from Fitch to Munn is dated some days subsequent
to that of Munn to Fitch, when there was no legal impedi-
ment to such conveyance on account of Munifs former duty
as trustee of the property, provided the conveyance was made
in good faith, and not in pursuance of an agreement between
them, made at or prior to the mortgage sale. A quit-claim
deed conveys title as effectually as one with covenants of
614 Munn et al. v. Burges et at. [Sept. T.
Opinion of the Court.
warranty; and since this title was derived through Munn, it
is not perceived that it could be regarded as a circumstance
tending to arouse even a strong suspicion that, in receiving a
conveyance back, he did not exact covenants of warranty.
The amount of consideration expressed in a deed is not con-
clusive evidence of what the consideration really was, and it
does not at all affect the validity of the deed; and whether a
deed shall be recorded at all, is a matter of no consequence,
save as to the rights of subsequent purchasers or incum-
brancers without notice. Nothing appearing on the face of
the records of deeds, is, therefore, necessarily inconsistent
with a regular sale under the mortgage and good faith and
honesty in the transaction between Munn and Fitch. We say
necessarily inconsistent, because it is undoubtedly true that
these records might be just as they are, and yet the sale have
been much more objectionable than it is claimed to have
been, and precisely the same might also be true when not the
slightest criticism could be urged against the records in any
respect. The presumption is, that persons charged with a
trust, perform their duty, until the contrary appears; and
when an act is equally susceptible of two opposite construc-
tions— one consistent with innocence and fidelity to duty, and
the other the reverse — common charity and the law alike
require that we shall presume in favor of innocence and
fidelity to duty.
The rule in reference to such notice, as given by Sugden,
is, athe recital in a deed of a fact, which may or may not,
according to circumstances, be held in a court of equity to
amount to a fraud, will not affect a purchaser for valuable
consideration denying actual notice of the fraud; nor will
circumstances amounting to a mere suspicion of fraud be
deemed notice." 2 Sugden on Vendors (8 Am. Ed.) 568,
sec. 59.
So far as the actual notice, resulting from the possession
of Standart and Hughes, is concerned, it is sufficient to say
they claimed under one Selever, whose claim was adverse to
1873.] Munn et at. v. Burges et al 615
Opinion of the Court.
that of the complainants as well as the defendants. Their
possession was notice of the extent and character of their
claim, but of nothing more. The defendant owners, before
purchasing, had that claim investigated by eminent counsel,
and were assured it was groundless; and so it seems to have
proved on being tested in the courts.
We feel, therefore, constrained to hold that the defendants,
owning the property, at the commencement of the suit, were
purchasers in good faith, without notice, actual or constructive,
of the equities claimed by the complainants. Being such, it
would necessarily follow that they can not be held responsible
for the irregularities charged, and their titles should be pro-
tected. Hamilton v. Lubukee, supra; Cassell v. Boss, 33 111. 244.
Moreover, complainants have been guilty of such laches in
asserting whatever rights they may have had in the property,
as must, of itself, consistently with previous decisions of this
court, preclude their right to recover in the present suit.
The mortgage was given to secure the payment of purchase
money for the property. There is no question made as to
the amount due on the mortgage at the time of the sale under
it, and it is conceded that complainants were then unable to
make payment. Prior to the sale, Burges wrote the follow-
ing letter to Coye, Munn's attorney, in relation to the matter :
" Providence, Oct. 5, 1861.
J. G. Coye, Esq. :
My Dear Sir — Excuse me for not replying sooner to your
letters of the 13th and 30th ult. The fact is, I have been
endeavoring to interest some friends and financiers in the
matter, so far, at least, as to enable me to comply with your
reasonable proposition. I could not, until to-day, get a deci-
sive answer from the forlorn hope, and then, sad to say, an
unfavorable one. I do not see anything that can possibly be
done to relieve me from the difficulty I am in, with regard to
this property. You must, therefore, pursue the course that
you consider best for the interest of Mr. Munn. It is of no
use to make propositions which look only to delay and for
616 Munn et al. v. Burges et al. [Sept. T.
Opinion of the Court.
better times, and it seems to be out of my power to accept
any made by yourself or Mr. M. Of course, our public dis-
asters have produced with me this state of things, assisted by
the bad faith and broken pledges of the man Payton, who
was bound to share in these payments, or to bear a portion of
my loss. I don't believe, from what I have heard of Chicago
affairs, and from what I know of mortgages here, that the
land in question will sell for any more than what is due to
your client. Still, if it should, I will be greatly obliged to
you for an account and remittance. Please present my thanks
to Mr. Munn for his past favors, and my best wishes for his
future happiness and prosperity. For your considerate kind-
ness in presenting this claim, I am very much obliged, and am
Verv trulv yours,
W. S. Burges."
The sale was not made until the 10th day of July follow-
ing. Both Burges and Payton admit they had notice when
the sale was to take place. Burges says: " I was aware of
Mr. Munn's intention to sell, and I believe I had direct notice
from some one. I do not remember from whom. It may
have been by an advertisement in a newspaper sent to me.
I can not say how I knew it, but am very confident I did
know it." Payton says: "I was informed by Mr. Burges
that the sale would be made July 10, 1862, positively, and
there was no doubt but what it had been sold." Neither of
the parties deemed it necessary to be present at the sale, and
from that time until in 1868, when Payton visited Chicago,
it is clear they had abandoned all idea of attempting to
regain possession of the property. Burges says: "I made no
inquiries, after the sale, except to ascertain for what price
it was sold, and paid no further attention to it, believing
everything had been done correctly, and I was irrevocably
foreclosed."
Pitch conveyed to Munn September 16, 1862, and Munn
retained the title thus vested in him until the 16th of July,
1866, when he sold and conveyed the property to Watkins
1873.] Munn et ah v. Burges et al. 617
Opinion of the Court.
for $17,000. Watkins, on the 13th of December, 1867, sold
and conveyed lot 16 to Taylor, for $10,000 or $11,000, and
Taylor, on the same day, sold and conveyed that block to
Kawson for $800 more than he gave for it. In April, 1868,
Watkins sold and conveyed block 28 to Lamed and others
for $15,000. Subsequently, different portions of the property
were sold and conveyed in small quantities to different pur-
chasers, at still higher prices, among whom was the defendant,
Matthews, who bought of Rawson one acre in lot 16, for
$2500, in January, 1868, and erected a house upon it of the
value of $3500.
The deeds from Munn to Fitch and Fitch to Munn were
placed on record on the 16th of September, 1862, and they
contained notice to the public, from that time forth, that
Munn claimed to own the property under the deed from Fitch.
Complainants could then have as readily ascertained the facts,
so far as we are able to perceive, upon which they were in-
duced to bring this suit, as in 1869. But then the property
was worth but little, if anything, more than the amount due
on the mortgage, while, in 1869, when suit was commenced,
it was worth about $50,000, and in 1872, when the deposi-
tions were taken, it was estimated to be worth $200,000. This
great and rapid rise in the value of the property is attributed
by the witnesses to the extension of the city limits in that
direction, and the opening and improving of streets, and the
location of public parks in its vicinity. Whatever burdens
may have been imposed on the property, by way of taxation,
for these or other purposes, have not been borne by the com-
plainants, but by Munn and those claiming under him.
Where real estate is bought for speculative purposes, as this
would seem to have been, by complainants, and from its pecu-
liar location, or from other causes, it is liable to sudden and
great fluctuations in value, promptness in making payment,
or in the assertion of legal or equitable rights, is far more
important than it is where the property is bought for actual
618 Blake v. Blake. [Sept. T.
Syllabus.
use by the purchaser, and the lapse of time does not sensibly
affect its value.
Complainants here had the right, assuming the sale under
the mortgage to have been irregular, to elect whether they
would avoid or ratify the sale, but this they were bound to
determine within a reasonable time. It was not consistent
with the principles of equity, that they should wait for seven
years, and speculate on the chances of the increase or depre-
ciation in the value of the property, before making their
election. Consistently with previous decisions of this court,
we must hold, under the evidence, complainants have been
guilty of such laches as precludes all right of recovery in the
present suit. Cox v. Montgomery,. 36 111. 394 ; Winchell v.
Edwards, 57 id. 45; Shaw v. Beach, id. 17; Hamilton v. Lu-
bukee, supra.; Burr v. Borden ei al. 61 111. 389; Dempster v.
West, 69 id. 613.
The decree of the court below is reversed, and the cause
remanded with directions to that court to dismiss the bill of
complaint.
Decree reversed.
Baknum Blake
Christine Blake.
1. Witness — credibility of hired detective. The testimony of a private
detective hired by a husband to watch his wife, with a view of learning
facts upon which to base a suit for a divorce, will be regarded with much
suspicion, especially where it does not appear that his pay does not de-
pend upon the successful effect of his evidence.
2. Same — credibility as affected by the improbability of the testimony and
feelings of witness. Where the story of two witnesses, sons of the com-
plainant in a bill for divorce, is improbable in itself, and they are shown
to be under the influence and control of their father, and very hostile
towards their mother, the defendant, and the statements of one of them
out of court is in conflict with his testimon}', this will have the effect to
greatly impair and discredit their evidence.
1873.] Blake v. Blake. 619
Opinion of the Court.
3. Evidence — adultery may be proved by circumstances. Adultery may
be established by circumstantial evidence, but the proof must convince
the mind affirmatively that actual adultery was committed, as nothing-
short of the carnal act can lay a foundation for a divorce.
4. If a married woman is shown, by undoubted proof, to have been in
an equivocal position with a man not her husband, leading to a suspicion
of adultery, and it is proved that she had previously shown an unwarrant-
able predilection for that man ; that they had been detected in clandestine
correspondence, had stolen interviews, made passionate declarations ; that
her affections were alienated from her husband, and that her mind and
heart were already depraved, and nothing remained wanting but an oppor-
tunity to consummate the guilty purpose, then proof that such opportu-
nity had occurred, will lead to the satisfactory conclusion that the act has
been committed. But, when these circumstances are wanting, the proof
of opportunity and equivocal appearances affords no evidence of adultery.
5. Divorce — proof of adultery should be clear. It being important to the
well-being of society that the marriage relation should not be severed,
clear proof should be required, where a divorce is sought from a wife for
adultery.
6. Same — reasonableness of solicitors fee. The court, on the hearing of
a bill for divorce brought by the husband against his wife, after verdict
in favor of the wife, required the complainant within thirty days to pay
the defendant's solicitors $6000 in addition to $1000 already paid: Held,
that the fee was excessive, and the same was reduced to $2000 in all.
7. New trial — newly discovered evidence. A new trial will not be
granted on the ground of newly discovered evidence, which is merely
cumulative, and which, if admitted, would be so unreliable and suspicious
that it ought not to be believed.
Appeal from the Superior Court of Cook county; the
Hon. Joseph E. Gary, Judge, presiding.
Messrs. Hervey, Anthony & Galt, and Mr. Joseph N.
Barker, for the appellant.
Mr. S. K. Dow, for the appellee.
Mr. Justice Craig delivered the opinion of the Court :
This was a bill for divorce, filed by Barnum Blake against
Christine Blake, in the circuit court of Cook county. A
change of venue was subsequently taken to the Superior
Court.
620 Blake v. Blake. [Sept. T.
Opinion of the Court.
The bill charged that the defendant committed adultery
with one Thomas M. Thompson, at various times, in Cook
county.
The defendant filed an answer under oath, in which she
denied each and every charge of adultery alleged in the bill,
and expressly denied that she ever, at any time or place, com-
mitted adultery with Thompson or any other person.
The defendant also filed a cross-bill, in which she charged
the complainant with extreme and repeated cruelty, and adult-
ery, and prayed for a divorce. The complainant answered the
cross-bill, under oath, denying the charges therein, and alleged
that the defendant was guilty of drunkenness, vulgarity and
lewdness.
In July, 1872, a trial was had before a jury, which resulted
in a verdict that the defendant was not guilty of the adultery
charged. ~No evidence was introduced in support of the
cross-bill.
The complainant filed a motion for a new trial, which was
overruled, and a decree signed according to the finding of
the jury.
The complainant brings the cause to this court by appeal,
and asks a reversal of the decree on the following grounds :
1st. Because the verdict is contrary to the evidence. 2d.
The court'erred in instructing the jury. 3d. The court erred
in not granting a new trial on the ground of newly discov-
ered evidence. 4th. The court erred in allowing solicitors'
fees to defendant's solicitors.
It appears by the record that these parties were married
in 1851, in the State of Wisconsin. At the time of their
marriage the defendant was 16 years of age and the com-
plainant was 34; that about three months before their marriage
the complainant obtained a divorce from a former wife, on the
ground of adultery. They resided in Wisconsin until 1867,
when they moved to Winnetka, in Cook county, where they
resided until the 8th day of June, 1870, when complainant
1873.] Blake v, Blake. 621
Opinion of the Court.
drove defendant from his house. They have five children,
residing with complainant at Winnetka.
It further appears that T. M. Thompson resides in Winnetka,
near the residence of complainant ; that he is a lawyer by
profession, a married man, keeps an office in Chicago, where
he is engaged in the practice of law; that "Winnetka is a vil-
lage sixteen miles from Chicago, containing about thirty
houses; that the residents of Winnetka, most of them, do
business in Chicago, and travel to and from Chicago morning
and evening, on the cars.
The evidence of the complainant to prove adultery is en-
tirely circumstantial. No direct or positive proof of the
commission of the act was introduced.
The first and main testimony relied upon to establish adult-
ery, was that of one Gleason, who was a hired detective,
residing in Chicago. He was employed in October, 1869,
and from that time until May, 1870, he followed and watched
the defendant and Thompson each time she went to Chicago.
During that time, he swears to twelve or fourteen visits she
made to Chicago, and was in company with Thompson on the
street and in the office of Thompson & Osborn. He swears that
he met them at the depot, and followed them in their walks on
the street : followed them to the office of Thompson, where
the defendant would sometimes remain a short time, and on
other occasions, as long as an hour or longer.
If the testimony of this witness was entirely reliable, it is
barely possible that adultery was committed, but it is not
probable. It is to be remembered that these meetings of the
defendant and Thompson occurred in the day time, on the
street of a populous city, at the office of an attorney, during
business hours, where the public were invited to go to trans-
act legal business. On the streets she never took his arm;
in the office, no improper intimacy was observed by this ever
watchful hired searcher after crime, save, on one occasion, he
saw Thompson's hand upon her lap. If the defendant's chasti-
ty was not above reproach, and her virtue as pure as the purest,
622 Blake v. Blake. [Sept. T.
Opinion of the Court.
it is astonishing that this witness, with all his vigilance, re-
search, and his eyes ever on the defendant when she was in
the city, during a period of six months, did not discover
more.
Bat the important question arises, were the jury bound to
believe the testimony of this witness ? He was employed by
the complainant to dog and follow the tracks of his wife in
a secret manner, and learn what facts he could, for the pur-
pose of becoming a witness against her. Up to the time this
cause was tried, he had received $350, and his account was
still unsettled. How much more he is to receive, or whether
the amount depended upon the effect his evidence should pro-
duce on the jury, is not disclosed. He was uncorroborated,
although others were about the office at the times he swears
to the interviews. None are called to sustain and corroborate
what he saw and testified to. This is somewhat remarkable,
and, when considered in connection with the fact that he was
in the employ of complainant, is calculated to cast suspicion
upon his evidence.
It is said, in Browning on the Laws of Marriage and Di-
vorce, citing from Sir Cresswell : "The employment of a
private detective, for the purpose of getting up evidence,
though in some few cases they may afford useful assistance, is,
as a rule, very objectionable. They are most dangerous agents,
and the court looks upon their evidence with much suspicion.
When a man sets up as a hired discoverer of supposed delin-
quencies, when the amount of his pay depends upon the extent
of his employment, and the extent of his employment de-
pends upon the discoveries he is able to make, then the man
becomes a most dangerous instrument."
"While it is true, under the law, Gleason was a competent
witness, yet his credibility was a question solely for the jury.
Aside from the evidence of Gleason, the complainant is com-
pelled to rely alone on the conduct of the defendant and the
accomplice at Winnetka, to establish adultery.
1873.] Blake v. Blake. 623
Opinion of the Court.
The conduct proven at Winnetka, aside from what was
shown by the testimony of the two small sons of complainant,
of which we shall speak hereafter, consisted of frequent walks
and drives that the defendant and Thompson had together.
Sometimes they rode and walked alone; on other occasions,
in company with the wife of Thompson. That there was any
improper intimacy between them on any of these occasions,
the evidence entirely fails to show.
One of complainant's witnesses, Schoder, testifies, on a
Sunday night in May, 1870, at 11 o'clock, he saw the defend-
ant, in company with Thompson, walking towards Wright's
grove. The next witness called by complainant swears that
he walked past Wright's grove, on the night in question, with
Mrs. Blake, and that with the knowledge and consent of com-
plainant. This illustrates very fairly two things, first, that
it is not safe to place too great reliance on that class of evi-
dence to establish adultery; second, that Mrs. Blake's walks
and rides were not altogether without the knowledge and
approbation of her husband. Great reliance is, however,
placed on the evidence of complainant's two sons, one 15
years old and the other 11. They testify that, on a certain
night their mother came home at 12 o'clock, Thompson with
her. These boys, as they say, were up playing chess; that
the defendant and Thompson went in the library. They
having heard the rattle of bottles in the wine-closet, slipped
down stairs, one at a time, and looked in from the hall to the
library, and saw a bottle and two glasses on the table, and
the defendant and Thompson on the sofa, in a reclining posi-
tion, she with her head on his shoulder, and he with his arm
around her waist. The story of these boys seems to agree in
every respect. It is, however, somewhat remarkable that
they should be up at this late hour of the night engaged in a
game of chess, at which a boy of 11 years would, ordinarily,
soon tire, and no mention is made of the whereabouts of the
servants, three of whom were employed at the house at the
time. It is, however, to be remembered that these boys were
624 Blake v. Blake. [Sept. T.
Opinion of the Court.
under the influence and control of their father, and it appears
that the older one, at least, was very hostile towards his
mother. Huxon testifies that, after Mrs. Blake left, he heard
the older son call his mother a " damned bitch," and on being
told he ought to be ashamed of himself, said he knew nothing
about his mother only what he had been told. Another wit-
ness testifies to similar expressions made by the boy.
The fact that boys the age of these being up at a late hour
of the night unaccounted for, the influence of their father
over them, their story in every respect agreeing, the bitter
feelings they entertained towards their mother, the statement
made by one of them out of court in direct conflict with what
he testified on the stand, no doubt had great weight on the
minds of the jury to discredit their evidence.
There were other facts in evidence in this case that, no
doubt, had great weight with the jury, and went far to con-
vince them that the intimate relations existing between the
defendant and Thompson were not of a criminal character.
It was proven that, for a number of years, the Blake and
Thompson families have been on very friendly and intimate
terms. In 1869, complainant and his wife went on a tour
South, and were gone several months. In their absence, their
children were left in the care of the Thompsons. Complain-
ant entrusted Thompson with the payment of his taxes on his
Winnetka property. On their return, Thompson was pre-
sented with a cane cut by Blake, in the South. Thompson
and his wife frequently dined at Blake's residence with Blake
and his family, and Blake, in his evidence, does not deny the
fact that, on Sunday before he drove his wife from his home,
Thompson and his wife dined with complainant at his resi-
dence. These things are shown to exist in the face of the
further fact that, as early as 1868, complainant was suspicious
that Thompson and his wife were committing adultery.
It is insisted by appellant that the circumstances proven
were amply sufficient to establish the fact that adultery was
committed. There can be no doubt but adultery may be
1873.] Blake v. Blake. 625
Opinion of the Court.
established by circumstantial evidence, but the proof, says
Bishop, vol. 2, page 613, "must convince the judicial mind
affirmatively that actual adultery was committed, since nothing
short of the carnal act can lay a foundation for divorce."
We have been referred by the solicitors for complainant to
an opinion delivered by Chief Justice Shaw, in the case of
Dunham v. Dunham, which is quoted as good authority by
Bishop, in the 2d vol. of his work on Marriage and Divorce,
sec. 616, as being directly in point in this case, in which it
is said : " It is impossible, therefore, to lay down beforehand,
in the form of a rule, what circumstances shall and what shall
not constitute satisfactory proof of the act of adultery, be-
cause the same facts may constitute such proof or not, as they
are modified and influenced by different circumstances. Sup-
pose, for instance, a married woman had been shown, by
undoubted proof, to have been in an equivocal situation with
a man not her husband, leading to a suspicion of the fact.
If it were proved that she had previously shown an unwar-
rantable predilection for that man; if they had been detected
in clandestine correspondence; had sought stolen interviews;
made passionate declarations; if her affection for her husband
had been alienated; if it were shown that the mind and heart
were already depraved, and nothing remained wanting but an
opportunity to consummate the guilty purpose, then proof that
such opportunity had occurred, would lead to the satisfactory
conclusion that the act had been committed. But when these
circumstances are wanting — when there has been no previous
unwarrantable or indecent intimacy between such parties, no
clandestine correspondence, or stolen or secret interviews — the
fact of opportunity and equivocal appearances would hardly
raise a passing cloud of suspicion over the fair fame of such
a woman."
Under the rules laid down in that case, the evidence in
this, in several respects, is very deficient. No clandestine
correspondence is shown; not a single word or expression is
proved to have been uttered by defendant showing her attach-
40— 70th III.
626 Blake v, Blake. [Sept. T.
Opinion of the Court
merit to Thompson. No sign or token of affection is shown
to exist. The rides and walks taken by them, so far as proof
is concerned, seem to be destitute of the characteristics which
would ordinarily lead a jury to the conclusion that adultery
had been committed where the opportunity existed.
It is exceedingly important for the well-being of society
that a check should be placed upon the tendency of the age
to sever the marriage relation, and more especially should
clear proof be required when the result of the verdict sought
to be obtained will publish a defendant to the world as a
prostitute, and brand the children of complainant as the
descendants of an unchaste woman.
We are not, therefore, upon a careful consideration of all
the testimony, prepared to say the verdict is against the
weight of the evidence.
It is insisted by the solicitors for complainant, that the
court erred in refusing to give his fifth, seventh, ninth, four-
teenth and fifteenth instructions.
The substance of the fifth and seventh instructions is em-
braced in complainant's fourth, which was given.
The ninth was substantially like the sixth, which was
given.
The fourteenth was properly refused, for the reason that
the record does not show the evidence of Huxen and his son
and Millard was withdrawn from the consideration of the
jury-
The fifteenth was not proper, for there was no evidence on
which to base it.
We perceive no error in the instructions given for defend-
ant.
The instructions given for complainant and defendant,
when considered together, fairly presented the law applicable
to the case to the jury.
The next point relied on is, that the court erred in not
granting a new trial, on the ground of newly discovered evi-
dence.
1873.] Blake v. Blake. 627
Opinion of the Court.
It is shown that the newly discovered testimony sought to
be produced, is that of Dr. Turner and his wife, who swear
that the defendant wrote Dr. Turner a letter, in which she
admitted she had committed adultery with Thompson four or
five times in his office, and also at Lake View, and that sub-
sequently in a conversation at the St. James Hotel, in Chicago,
she admitted substantially the same. The letter purporting
to contain these admissions is not produced, although other
letters written by the defendant to Dr. Turner are shown.
It appears that this Dr. Turner had informed the defend-
ant that he could produce evidence to show the complainant
guilty of adultery, and that he was employed for that purpose,
and acted some time in that capacity ; that finally there was
a misunderstanding between him and defendant, in regard to
the pay he should receive. A number of letters passed be-
tween them, which show very clearly that all Turner was
after was money — the result of which was, Turner, not having
realized as much from the defendant as he expected, after the
trial was over he turns up in communication with the com-
plainant, and, as near as we can understand from the letters
and affidavits filed, proposes to sell out and swear on the other
side of the case.
There are two reasons, either one of which is ample to
justify the court in overruling the motion for a new trial :
First — This testimony sought to be produced was merely
cumulative.
Second — The evidence of these Turners sought to be pro-
duced is shown, by the facts contained in this record, to be
unreliable and utterly unworthy of credit. A party who will
expose one side of a cause as did these Turners, and work in
the interest of that side as they have done, and then turn
upon the other side and betray the confidence reposed in them,
and exhibit confidential letters and contracts as they did,
could not and should not be believed by any honest jury in
the land.
628 Blake v. Blake. [Sept. T.
Mr. Chief Justice Breese, dissenting.
The last point relied upon is, the amount allowed for soli-
citors of the defendant is exorbitant.
It appears that $1000 had already been paid by complain-
ant for solicitors' fees of the defendant. The court, in addi-
tion to that sum, decreed that the complainant should, within
thirty days, pay an additional sum of $6000.
We are satisfied that this allowance is too much. While
it is true there has been a large amount of labor in the defense
of the cause, yet it has been performed chiefly by one solici-
tor, and we are inclined to the opinion that $2000 ought to
be regarded as reasonable compensation. That portion of
the decree will therefore be modified so that the amount to be
paid, in addition to what had been paid at the time the de-
cree was rendered, shall be $1000.
In all other respects the decree will be affirmed.
Decree affirmed.
Mr. Justice Scott: I concur in the decision affirming the
decree in this cause.
Mr. Chief Justice Breese : I have examined this record,
and, as I read it, testimony of the most satisfactory character
is found in it to justify a divorce a vinculo. It is true, ap-
pellee was not caught flagrante delicto, but such circumstances
are proved as to force conviction upon the mind that the act
was done. I do not suppose it is required of a party apply-
ing for a divorce to prove, beyond all reasonable doubt, that
adulterous intercourse was actually had, but such facts as
warrant that conclusion. That appellee had violated her
marriage vows is satisfactorily proved, if circumstances are
available to prove any thing.
I have no time to go into a review of the testimony. The
salient facts proved are, that Thompson was an object of ap-
pellee's special regard, and they were on terms of closest
intimacy, she bestowing upon him favors which no virtuous
wife would bestow without the knowledge of her husband.
The most familiar intercourse with Thompson is established,
1873.] Blake v. Blake. 629
Mr. Ch-ief Justice Breese, dissenting.
such as riding out with him repeatedly in her buggy, return-
ing after night fall ; walking with him, "arm in arm ;" stroll-
ing to the lake shore at a late hour of the night, on the
pretense of seeing "the moon rise;" visiting him time and
again at his office in Chicago, and then found with him alone,
his hand in her lap. On one occasion, they were seen together
in the office of Thompson, which had a partition setting off a
portion of it for a sitting room, furnished with a chair or two
and a lounge; a bolt was heard to slide, and presently, in
looking into the outer room, it was found to be vacant.
Again, she hurried the servants to church, on one Sabbath,
appellant having gone there with one of the children, when,
on the return of the servants from church, they discovered
Thompson in the green house, he carefully closing the door.
Again, her two sons, one aged fifteen and the other thirteen,
both testify that they have known their mother, in their
father's absence from home, go out riding with Thompson
three or four times a week, in the evening between six and
eight o'clock; sometimes later; have known them to come
back as late as eleven o'clock at night, which they never did
when appellant was at home. They swear that she came home
with Thompson one night, during their father's absence, about
twelve o'clock; there was no light in the hall and none in the
parlor; she told Thompson to step into the library, and she
would be down in a minute; she ran up stairs, when the
rattling of bottles was heard ; she soon returned, and they
were seen in the library, the light burning very low, a bottle
and two glasses on the table, and they reclining on the sofa,
her head on Thompson's shoulder, and his arm around her
waist. It is not strange these boys should be awake at that
hour of the night, as they were sitting up to watch for their
mother, and let her in, the servants, no doubt, fatigued with
their day's work, having gone to bed. There was no testi-
mony worthy of consideration, to shake the testimony of these
boys. The eldest was then a pupil at Racine College, and
630 Blake v. Blake. [Sept. T.
Mr. Chief Justice Breese, dissenting.
justly indignant at the conduct of his mother, in so taking
advantage of his father's absence.
It is urged, as a reason why the evidence of frequent inter-
course with Thompson, and visits at his office, should not
have weight with the jury, that the witness named Gleason <
was one of "Pinkerton's detectives," and employed for the
purpose of watching appellee's movements and conduct.
This court, in Bennet et al. v. Waller et al. 23 111. 97, did not
hesitate to repose confidence in the testimony of Webster, a
"Pinkerton detective," and were so influenced by it as to
decree an estate to be the property of defendants in error,
then valued at five hundred thousand dollars!
It seems to me, though appellee was not caught flagrante
delicto, the proof sufficiently shows she had, on divers occa-
sions, and at divers times, shown an unwarrantable predilec-
tion for Thompson ; that they had been seen together, time
and again, in equivocal positions, and at late and unusual
hours of the night; on one occasion going to the lonely lake
shore, "to see the moon rise," all which must be considered
in the light of stolen interviews, and though no clandestine
correspondence be proved, which, in this case, is not necessary
to be proved, if, by that term, is meant letters passing to and
from, as the parties were together almost every day, riding in
the same cars or meeting at Thompson's house. Add to these
the fact that the affection of her husband had been alienated
by her conduct, we see nothing wanting to force the conclu-
sion appellee had violated her marital vows.
Appellee, in her cross-bill, overwhelmed appellant with
the most abusive charges, not one of which did she attempt
to substantiate by proof — not one. She, too, employed "de-
tectives," though not of "Pinkerton's force," to spy out the
shortcomings of appellant, but proved nothing. She should
not complain if her husband used the same instruments as
she used, and which this court has sanctioned.
Of all these private interviews at Thompson's office and in
the library ; riding out and returning late in the evening;
1873.] Stenger v. Edwards. 631
Syllabus.
wanderings to the lake shore to see the moon rise, and to
Wright's grove to hear the rustling of the foliage as the
evening winds whispered through it ; of the many small
favors bestowed by appellee upon him, appellant was pro-
foundly ignorant, until, through subsequent communications,
he became informed of them.
In the opinion, as delivered, all these weigh nothing, and
are insufficient to establish guilt. Henceforth, no married
woman need have the least apprehension of disgrace or dis-
honor, or of a decree of divorcement, who is not so unfortu-
nate as to be caught flagrante delicto. I am of opinion the
testimony compelled a verdict of guilty, and a divorce a vin-
culo should have followed.
Mr. Justice McAllister : I fully concur in the dissent-
ing opinion of Mr. Chief Justice Breese.
Mr. Justice Scholfield : I also concur with Mr. Chief
Justice Breese, in his dissenting opinion.
Michael Stenger
v.
Isaac Edwards.
1. Mortgage — priority as between mortgagee of tenant in common and
his co-tenant. Where a tenant in common, with the consent of his co-
tenant, improves the estate before the execution of a mortgage by the
latter, one-half the outlay will be a prior lien to that of the mortgage, and
will be first paid out of the proceeds of the sale under the mortgage.
2. Tenants in common — no lien for rents received. If one tenant in
common receives the rents of the estate, the other tenant can have no
lien on the land for his share of the same. His remedy is by action of
account.
3. Partition — attorney's fee. Where a proceeding for the partition
of land is an amicable one, a solicitor's fee may be taxed as costs, to be
paid pro rata by all the parties, but not if there is a contest.
632 Stenger v. Edwards. [Sept. T.
Opinion of the Court.
Writ of Error to the Court of Common Pleas of the city
of Aurora; the Hon. Richard G. Montony, Judge, presiding.
Mr. C. J. Metzner, for the plaintiff in error.
Mr. Frank M. Annis, for the defendant in error.
Mr. Chief Justice Breese delivered the opinion of the
Court :
This was a petition for partition in the Court of Common
Pleas of the city of Aurora, in the county of Kane, filed by
Isaac Edwards, against Otto Groch and the other heirs at law
of Robert Groch, deceased, claiming one equal part of certain
premises, particularly described in the petition, as tenants in
common. One Michael Stenger, a mortgagee of Groch's inter-
est, was made a party.
Answers were put in, and replications, and, on the hearing,
the court adjudged a partition of the premises in equal parts,
the one-half allotted to the heirs of Groch to be subject to
Stenger's mortgage, the amount of which was found to be
eight thousand three hundred and nineteen dollars and forty-
four cents.
It appears the premises had upon them a stone-quarry and
lime-kiln, and three small dwelling houses; and the court
found that Groch, in his lifetime, had the entire use and
benefit thereof, and that petitioner's share thereof amounted
to two hundred and forty-three dollars and fourteen cents,
and that Edwards had expended in the improvement of the
property a sum of money, the one-half of which would amount
to forty-nine dollars and forty-four cents, all which, by the
decree of the court, were made a lien on Groch's interest,
prior to that of Stenger's mortgage. An attorney's fee of one
hundred dollars was also allowed, and charged upon the same
interest.
Commissioners were appointed to divide the land equally
between the petitioner and the heirs of Groch, and having
1873.] Stenger v. Edwards. 633
Opinion of the Court.
performed that duty, by dividing the same, reported to the
court, and their report was confirmed.
To reverse these proceedings, Stenger, the mortgagee, brings
the record here by writ of error, and complains that his mort-
gage is postponed to the rents collected by Groch, in his life-
time, to the cost of the improvements made by petitioner on
the premises, to one-half the avails of the use of the lime-
kiln, and in charging the solicitor's fee against the Groch
interest, and making each and all these items a prior lien
upon the premises.
We are of opinion, so far as the improvements on the land
are involved, and as having been made by the petitioner with
the consent of Groch, in his lifetime, and before the execution
of the mortgage to the plaintiff in error, one-half the outlay
for the same should he held and regarded as a prior lien, and
should be first paid out of the proceeds of the sale under the
mortgage. Gardner v. Diederichs, 41 111. 158. But the record
is silent as to the time, whether before or after the execution
of the mortgage. As to the rents received by Groch, to one-
half of which defendant in error claims to have been entitled,
we are referred to no authority under which they could be
considered a lien. The remedy in such case would be by
action of account.
Adjudging solicitor's fee against the defendants in the peti-
tion was error, as the suit does not appear to have been an
amicable proceeding, but was contested. Answers were put
in, and replications, and the cause went regularly to a hear-
ing and final decree. By the construction heretofore given
to the act of 1869, it is only in case of an amicable suit for
partition the solicitor's fee can be taxed as costs pro rata
against all the parties. Kilgour et al. v. Crawford et ux. 51
111. 249.
For the reasons given, the judgment is reversed and the
cause remanded.
Judgment reversed.
634 N. W. Fertilizing Co. v. Hyde Park. [Sept. T.
Svllabus.
The Northwestern Fertilizing Company
v.
The Village of Hyde Park.
1. Construction — of legislative grants. All grants by the legislature
must, in cases of doubt, be construed most favorably to the government.
2. When an enactment will bear two constructions, one injurious to
the public and the other not, the courts must adopt that which will not
work injury.
3. There is always an implication connected with grants to corpora-
tions, that, in performing their functions and exercising their powers, they
shall only employ lawful and honest means.
4. When a grant of power is conferred on such bodies, and the means
of its exercise are not specified, they may employ the most natural and
appropriate legal means to accomplish the end; but they are not thereby
authorized to employ any means they choose, without regard to the rights
of others, the interests of individuals, or the welfare of communities. The
means adopted must be suitable to the end, and in conformity with the
maxim, sic utere tuo ut alienum non lozdas.
5. Police power op the State — who subject thereto. All persons pos-
sess their rights, whether to things tangible or intangible, subject to the
general police power of the State; and corporate bodies are not, nor can
they be, a privileged class in this regard.
6. The exemption of an individual or a class of individuals from pun-
ishment for crimes and misdemeanors, by an act of the General Assembly,
would not prevent that body from the repeal of such law, and bringing
them under the general law punishing crimes and misdemeanors; and
the same rule applies to a body corporate.
7. The charter of the village of Hyde Park authorized the town au-
thorities to determine what were nuisances, and to abate the same, with a
proviso that nothing therein contained should authorize the town or its
officers to prohibit, interfere with, hinder or obstruct parties engaged in
carrying oflal from the city of Chicago to a designated point in the town,
and from manufacturing the same into an agricultural fertilizer, etc. In
1869 this charter was revised, and the same powers as in the original
conferred, with the proviso that such powers should not be exercised
against the Northwestern Fertilizing Company until the lapse of two
years after the passage of the act: Held, that such inhibition from exer-
cising the police power against such company did not inure to such com-
pany as a grant; that it was only a police regulation operating upon and
1873.] N. W. Fertilizing Co. p. Hyde Paek. 635
Opinion of the Court.
controlling the village government, and that the company could claim no
privilege under it after the expiration of the two years.
8. The enactment by implication fully authorized the village to enact
appropriate ordinances to abate nuisances, and to enforce the same after
the expiration of the two years.
Appeal from the Circuit Court of Cook county; the Hon.
W, W. Farwell, Judge, presiding.
Mr. Leonard Swett, and Mr. John I. Herrick, for the
appellants.
Messrs. Hitchcock & Dupee, for the appellees.
Mr. Justice Walker delivered the opinion of the Court :
In the year 1867, a number of persons became incorporated,
under an act of the General Assembly, as the Northwestern
Fertilizing Company. They were, by their charter, empow-
ered to establish depots in the city of Chicago for the recep-
tion of offal, dead animals and animal matter, either from the
city or from individuals, and to erect a factory for its con-
version into an agricultural fertilizer, to be established at a
designated point about fifteen miles south of the city. The
charter authorized a subscription of $250,000 of stock in the
company, and the organization was to continue for fifty years.
After their organization they commenced the manufacture
of the fertilizer, and continued to operate their factory until
this suit was brought. In conducting this business, the com-
pany received substantially all the offal in the city, with
the refuse from the packing houses, and all dead animals,
during the winter, which they worked up and converted into
a fertilizer during the next summer and autumn.
On the fifth day of March, 1867, three days before this
charter was granted to appellants, the General Assembly
adopted an act revising the charter, and its various amend-
ments, of the town of Hyde Park. By it the village was
expressly authorized to regulate and control groceries, or oc-
cupants of cellars, tallow chandlers' shops, soap factories,
636 N. W. Fertilizing Co. v. Hyde Park. [Sept. T.
Opinion of the Court.
tanneries, or other unwholesome, nauseous houses or places,
and to compel the owners or occupants to cleanse, or remove
or abate the same ; to determine what are nuisances, which
are or may be injurious to the public health, and to abate the
same in any manner they may deem expedient ; to regulate,
restrain, prohibit or license breweries, tanneries, packing
houses, butcher shops, stock yards, or establishments for the
steaming or rendering of lard, tallow, offal, or such other sub-
stances as can or may be rendered, boiled and steamed, and
all establishments or places where any nauseous, offensive,
unwholesome or immoral business may be conducted. But
the 31st section of the charter provides, that nothing therein
contained should authorize the town or its officers to prohibit,
interfere with, hinder or obstruct parties engaged in carry-
ing such offal from the city of Chicago to a designated point
in the town, and from manufacturing the same into an agri-
cultural fertilizer, or other chemical product. The charter
of the town was again revised in March, 1869, when substan-
tially the same powers were conferred upon the trustees, but
the 16th section contained this proviso : "That the sanitary
and police powers conferred by this act shall not be exercised
by said board of trustees, as against the Northwestern Fertil-
izing Company or the Union Rendering Company, located
at or near the Calumet river, in said town, until the full ex-
piration of two years from and after the passage of this act."
Subsequently, this, among other ordinances, was adopted
by the village : "No person shall transport, haul or convey
any offal, dead animals, or other unwholesome matter or ma-
terial into or through the village of Hyde Park ; and any
person who shall be in charge of or employed on any train or
team carrying or conveying any such matter or matters into
or through the village of Hyde Park, shall be subject to a fine
of not less than five nor more than fifty dollars for each
offense."
After the adoption of this ordinance, and after the expira-
tion of two years, from March, 1869, appellants continued to
1873.] N. W. Fertilizing Co. v. Hyde Pare:. 637
Opinion of the Court.
transport offal, dead animals and animal matter through the
town of Hyde Park to their factory, to be converted into the
fertilizer; and after giving notice to appellants that the ordi-
nance would be enforced, on the 8th day of January, 1873,
the town authorities arrested the engineer and other employees
of the Port Wayne and Chicago Railway, who were engaged
in carrying offal through the village to the factory of appel-
lants, on a charge of violating the ordinance. They were
tried, convicted, and fined $50 each. This being highly inju-
rious to the business of appellants, they filed this bill to enjoin
any further prosecutions under the ordinance. A hearing
was had on the bill, answer, replication and proofs, when the
court below denied the relief sought, and dismissed the bill.
From that decree the company appeal to this court.
Appellants claim that, under their charter, they have
granted to them the privilege of pursuing their business, al-
though it may be a nuisance to the citizens in the neighbor-
hood ; that the only limitation on the power, and it is implied,
is, that they shall use the best known chemical and mechan-
ical processes to prevent its becoming an annoyance to others,
and shall, in the future, adopt and use such further improve-
ments as may be discovered during the continuance of their
charter; that they have, in this respect, discharged their
entire duty ; that the State, by granting the charter to the
company, thereby entered into a contract with the corporators
and their successors that they might use the franchise and
manufacture the fertilizer during its continuance ; that by
accepting the charter and organizing the company, they ac-
quired vested rights in the franchises and privileges thus
granted, freed from the police power of the State, and that
the General Assembly does not possess the power to render
the corporation, its members, employees or servants, liable to
the law for creating a nuisance, nor to confer such a power
on the village of Hyde Park. These we understand to be the
grounds assumed by appellants as to the law of the case.
638 N. W. Fertilizing Co. v. Hyde Park. [Sept. T.
Opinion of the Court.
An examination of the evidence in this case clearly shows
that this factory was an unendurable nuisance to the inhabi-
tants, for many miles around its location ; that the stench was
intolerable, producing nausea, discomfort, if not sickness, to
the people ; that it depreciated the value of property, and was
a source of immense annoyance. It is, perhaps, as great a
nuisance as could be found or even created — not affecting as
many persons as if located in or nearer to the city, but as in-
tense in its noisome effects as could be produced. And the
transportation of this putrid animal matter through the streets
of the village, as we infer from the evidence, was offensive,
in a high degree, both to sight and smell.
The legislative branch of a government is vested with the
power to give shape to, and control its policy, by the enact-
ment of laws. It has the power to say what shall or shall
not be done by its citizens ; to declare what shall constitute
legal and what illegal acts or pursuits; to define what acts
shall constitute crimes, what misdemeanors, and what shall
be innocent and lawful ; and, in the exercise of these powers,
that branch is under no control, unless it be restrained by
the fundamental law creating the government. No other de-
partment, in our form of government, can check or obstruct
the legislative department in the exercise of this power. It
is true, the people, by the election of persons to the General
Assembly, who entertain different viewTs, may modify or
repeal such laws. But, until thus modified or repealed, the
laws constitutionally passed must be regarded as of full and
binding force. In our system of government, the legislative
department are intrusted with the sole power of enacting laws
for the government of the people, and these laws must be
enforced, unless repugnant to the constitution of government
by which that department is created, and under which it acts.
No law can be repealed but by the authority which enacted it.
Laws, however, when enacted, must be interpreted and
applied to the various human acts which they were intended
to control, and, in such interpretation, the courts to whom
1873.] N". W. Fertilizing Co. v. Hyde Park. 639
Opinion of the Court.
that duty is intrusted, act upon well recognized canons of
construction, among which is that one which declares that all
grants by the legislature must, in cases of doubt, be construed
most favorably to the government. Another is, that, where
an enactment will bear two different interpretations, one
injurious to the public, and the other not, the courts must
adopt that which will not work injury, and it is because it
must be presumed that the legislature, which was created to
enact just and reasonable laws to protect the governed in
their rights, and for the promotion of their happiness, did
not intend to violate their duty and to inflict injury. And,
under the first, as the General Assembly is intrusted with the
power of legislation, it can not be presumed, in making a
grant, that they intend to divest themselves of power intrus-
ted to them for the protection and welfare of the governed,
and hence it can not be inferred that they intended, in a grant,
to yield any more than is shown by clear and express lan-
guage. And especially is this so, where the grant, in its na-
ture, is irrevocable.
It was not intended, when the government was framed, that
the legislative department should ever yield or irrevocably
cede the power of governing the people in the best manner,
to individuals, or to a collection of individuals. Whilst the
experience of the past has shown that good government may
be promoted and the people better secured in their rights by
the creation of municipal corporations, it has, so far as our
researches have led us, never been held that the powers
granted to such bodies may not be withdrawn and resumed at
the will of the legislature; and to hold that the powers thus
granted became, in such bodies, vested rights, would be con-
trary to the intention of the people in forming the govern-
ment. They intrusted the legislature with its vast powers,
to be exercised by them for the general good, and not to be
granted beyond the power of recall to either municipal bod-
ies or to individuals. The legislative department holds this
power in trust, to be used by them and them alone, whenever
640 N. W. Feetilizing Co. v. Hyde Paek. [Sept. T.
Opinion of the Court.
the public good requires it. If they could irrevocably de-
prive that branch of government of the power to protect the
people against crime, misdemeanors, and frauds and oppres-
sions, the very object and purpose of the creation of the
legislative department would be defeated. It never was
intended or supposed that the legislature would ever de-
prive themselves or their department of government of their
constitutional power to enact wholesome laws for the protec-
tion of the citizen from wrong and oppression. And it being
contrary to their duty, there can be no presumption that they
so intended, unless the language employed in the grant is so
plain that it will bear no other construction.
The power conferred by the charter is this: " Said corpor-
ation is hereby authorized and empowered to establish and
maintain chemical and other works at the place designated
herein, for the purpose of manufacturing and converting dead
animals and other animal matter into an agricultural fertil-
izer, and into other chemical products, by means of chemical,
mechanical and other processes/' Does this grant of power
authorize this company to violate the criminal laws of the
State, by creating a nuisance for which an individual might
be indicted and punished? In terms, it certainly can not be
so held. It contains no language which purports to grant
such an immunity.
All will readily admit that, when private corporations are
created, unless exempted by legislative enactment, they are
amenable to the criminal laws and the police regulations of
the State, precisely as are natural persons. It would be mon-
strous to hold that, because an artificial person is created and
authorized to perform certain acts, and to accomplish certain
ends, in doing so, the body may resort to criminal agencies.
There is always an implication connected with the grant of
such charters, that, in performing their functions and exercis-
ing their powers, they shall only employ lawful and honest
means. It is true, that when a grant of power is conferred
on such bodies, and the means of its exercise are not speci-
1 873.] N. W. Fertilizing Co. v. Hyde Park. 641
Opinion of the Court.
fied, they may employ the most natural and appropriate legal
means to accomplish the end. They are not, however, thereby
authorized to employ any means they may choose, without re-
gard to the rights of others, the interests of individuals or the
welfare of communities. The means adopted must be suitable
to the end, and in conformity with the maxim, sic utere tuo ut
alienum non loedas. Such bodies can only exercise such pow-
ers as are expressly granted, or as are necessary to accomplish
the purpose of their creation.
Was, then, this power given by implication? Did the Gen-
eral Assembly intend to give this body the power, in manu-
facturing the agricultural fertilizer, to create a nuisance,
injurious to the health and comfort of the citizens, and highly
injurious to the enjoyment of their property, and destructive
to its value? As government is organized and maintained
for the protection of the people in their lives, persons and
property, and the legislature is intrusted with the enactment
of laws to effectuate these objects, the presumption is, that
they are controlled by the maxim salus populi est supremo, lex,
and not for the promotion of the interest of the few, to the
injury of the many. A reasonable construction of this grant
of power is, that this company may carry on their business
for the purposes indicated, upon the condition that they should
do so without violating any public law, and without creating
a public nuisance. This seems to us to be the only reason-
able interpretation that can be given to the language
employed. This same charter authorizes this company to
establish depots in the city, to receive the dead animals and
animal matter to be manufactured. But there is no specific
provision that the company shall so manage these receptacles
as that they shall not become a nuisance, and yet no one
would contend that they have a contract with the State by
which they can permit such matter to lie there indefinitely,
and become putrid, and a nuisance to the people in the vicin-
ity. And in what consists the difference? In the one, they
may receive the matter ; at the other, they may manufacture
41 — 70th III.
642 N. W. Fertilizing Co. v. Hyde Park. [Sept. T.
Opinion of the Court.
it. But we see no greater exemption in the one case than in
the other. The maxim applies. legis constructio non facit inju-
riam. Hence, in construing statutes, the presumption must
be adhered to, that it was not intended to injure any one,
much less the people generally. When such an intention is
expressed in clear and explicit language that admits of no
construction, then courts can but carry out the legislative
will, when that body has not transcended the limits of their
power.
In the case of The Ohio and Mississippi Railroad Company
v. McClelland, 25 111. 140, it was held, that, in granting the
charter to the railroad company, the legislature not having, in
terms, surrendered the right to subject it to the general po-
lice regulations, in the absence of express language, such an
exemption would not be inferred; that, in the creation of
these bodies, they must be held to be subordinate to and under
the control of the government, to the same extent as individ
uals ; that they had, at all times, been required to conform to
the general laws of the State, precisely as if they were natu-
ral, and not artificial persons. To hold otherwise would be
to create a government within a government, independent
and free from its control. And the case of Providence Bank
v. Billings, 4 Pet. R. 514, was referred to, where Chief Justice
Marshall says, in reference to the State not having relin-
quished the power to tax the bank, "but, as the whole com-
munity is interested in retaining it undiminished, that
community has a right to insist that its abandonment ought
not to be presumed in a case in which the deliberate purpose
of the State to abandon it does not appear." So of the pow-
er to regulate the general police of the State. The power to
impose police regulations operates upon all alike, and this is
a fundamental principle, lying at the very foundation of
organized society. It is yielded by each member when he
enters society, for the good of the entire community; that it
is incident to and a part of government itself, and need not
be expressly reserved when it grants rights or property to
1873.] N. W. Fertilizing Co. v. Hyde Park. 643
Opinion of the Court.
individuals or to corporate bodies, as they take subject to this
right. See Galena and Chicago Union Hailroad Company v.
Appleby, 28 111. 283, and Dingman v. The People, 51 111. 278,
where the same rule is announced.
Had a citizen erected this structure and created this nui-
sance, does any one suppose that such person would not have
been liable to prosecution and punishment? An individual,
in the pursuit of gain, had the undoubted right to make such
an erection, and use it, too, provided it did not become a
nuisance, and inflict injury upon others. And why, or how,
does an artificial person, created to promote private interest
and, incidentally, promote the general welfare, acquire any
greater or more sacred rights than the individual citizen?
Does any one suppose that the General Assembly could, by
enactment, authorize, irrevocably, an individual, for his pri-
vate gain, to inflict injury to the life, health, peace and prop-
erty of the community? And if the irrevocable power to do
these things by an individual can not be granted, how can it
be contended that such irrevocable power can be conferred on
a corporation? Such entities should be content to have
the powers of natural persons, and be subject to the same
rules prescribed for the government of the community in
which they exist. We hazard nothing in saying that the
General Assembly never supposed they were creating artifi-
cial bodies not subject to be controlled by the police power,
inherent in and inseparable from the sovereignty of the State.
It would be impossible to suppose the General Assembly, or,
in fact, any government, would or could divest itself of all
power beyond recall, to prescribe what are crimes, and to pun-
ish them. And if such a grant may be made to corporations,
it may be to individuals. If with one person, it may be with
all in community, and the power of protection be lost, and
the ends of government defeated.
Nor is it an answer to say that it is conceded by agreement
or contract. The legislature has the same power to say to an
individual, if he will perform a particular act, or pursue a
644 N. "W. Fertilizing Co. v. Hyde Park. [Sept. T.
ODinion of the Court.
specified calling, he shall be released from the police power of
the State, as to say to a number of persons that, if they will
organize and perform that act, or pursue that occupation,
they shall be free from its operation.
The General Assembly might omit the performance of the
duty resting upon them, by failing to prescribe what shall
constitute crimes, and in not providing for their punishment.
If so, then, so long as a civil remedy should not be taken
away, each individual would be left to his action against the
wrong-doer for the injury inflicted upon him; but the exemp-
tion of an individual, or a class of individuals, from punish-
ment for crimes or misdemeanors, by an act of the General
Assembly, would not prevent that body from the repeal of
that law, and bringing them under the general law punishing
crimes and misdemeanors; and why should they exempt a
body corporate? No reason is perceived why they should
not, in this respect, be governed as are natural persons. The
formation of government was to confer equal rights and pro-
tection to all persons.
In view of what we have said, we must, therefore, hold that
all persons possess their rights, whether to things tangible or
intangible, subject to the general police power of the State, and
that corporate bodies are not, nor can they be, held to be a
privileged class in this regard. When created, they are en-
dowed by the provisions of their charters, to the extent of
the grant, with the same rights and are liable to the same duty
and obedience to government as individuals. They are cre-
ated persons, but not higher or superior to natural persons.
They are endowed with rights and powers, within the scope
of their franchises, to the same, and only to the same, extent
as natural persons. To hold otherwise is to reverse the rules
of construction, the theory and policy of government, to
change the principles on which it is based, to encroach upon
the rights of the people, and to create a power in the State
beyond its control and highly dangerous to the general wel-
fare. Such immunity to these bodies was not intended by
1873.] N. "W. Fertilizing Co. v. Hyde Park. 645
Opinion of the Court.
the framers of our government, and, we have no doubt, would
have been expressly prohibited if they could have imagined
that such privileges would be granted, or claimed by construc-
tion; nor can we believe the legislature supposed such exemp-
tion for such bodies would ever be claimed, or they would
have expressly provided that they should be subject to the
general laws of the State, precisely as are individuals.
Nor did the inhibition, in the village charter, from exer-
cising the police power, in reference to this company, for
two years, inure to this company as a grant to them. It was
only a police regulation, operating upon and controling the
village government. Appellants were not a party to that
enactment, and have no right to claim any privilege under it
after the expiration of the two years. It was not a grant of
an immunity to the appellants, but it was a restriction on the
village, preventing it from exercising the power for the speci-
fied period. This was the full scope of the enactment, and it,
by implication, fully authorized the village to enact appropri-
ate ordinances to abate the nuisance, and to enforce the same
after the expiration of the two years named in their charter.
The grant of power was ample, and its exercise was only sus-
pended for the limited period, as to appellants and the other
company, and when the time expired, all impediments to its
exercise were removed.
Inasmuch, then, as the charter of appellants did not author-
ize them to create a nuisance, but only to exercise their fran-
chise so as not to injure community, the authorities referred
to are not applicable to the case. The cases referred to in
reference to the erection of mills, may be regarded as neces-
sarily producing the nuisances of which complaint was made,
and as an implied authority by the legislature to maintain the
nuisance; but even it were conceded that the General Assem-
bly has such power, those cases are not like this, as no such
power was granted by this charter; hence, those cases have
no application.
Had the legislative power been thus exerted in the cases
646 K W. Fertilizing Co. v. Hyde Park. [Sept. T.
Opinion of the Court.
referred to, and had the courts held that the owners of the
mills were nevertheless exempt, then the cases would have
been analogous, and would have demanded of us the deter-
mination whether we would have yielded obedience to them
as authority.
It also follows that the case of Dartmouth College v. Wood-
ward, 4 Wheat. 518, and the other cases announcing the same
rule, have no application. We have seen there was no con-
tract between the State and appellants that they might create
and maintain this nuisance, and hence no rights derived by
contract have been impaired.
It is urged, that railroads in cities and towns are nuisances,
but they are only exercising their franchises in thus operating
them. If this be true, and we doubt not they may be so
operated as to make them such, still the General Assembly has,
in numerous instances, long after their charters were granted
and the roads were constructed, enacted laws regulating the
speed of trains in cities and towns, or conferred the power
on such municipalities to do the same thing, and thus prevent
the roads from becoming a nuisance; nor are we aware that
this salutary exercise of the police power has ever been chal-
lenged. Its justness, and even necessity, have commended it
to all, and it has not been questioned; and this is a fair illus-
tration of the exercise of the police power over bodies corpo-
rate. It is on the same principle that railroads are required
to fence their tracks, sound a whistle or ring a bell at high-
way crossings, and to come to a full stop before a train crosses
another railroad. These and many other duties are imposed,
as being necessary for the safety of the people and their prop-
erty, and grow out of the implied power that the General
Assembly may restrain these bodies, to promote the safety of
community, as it may individuals.
After a careful examination of the record and an attentive
consideration of the arguments filed in the case, we are unable
to say that the court below erred in rendering the decree it
did, and it must be affirmed. ^ ~ ,
; Decree affirmed.
1873.] Blanchard v. Williamson. 647
ODinion of the Court.
Philena Blanchard
V.
Almira Williamson.
1. Chancery jurisdiction — remedy at law lost. No principle of law
is better settled, than that where the law affords a remedy, and the party
neglects to avail of it, equity will not assist him after his remedy at law
has been barred by the Statute of Limitations.
2. Same — of claim against an estate. A court of equity will not as-
sume jurisdiction of a claim against an estate, until the claimant shall
have exhibited it and had it allowed in the county court, but, if any
reasons that maybe deemed sufficient can be assigned why that court can
not afford the requisite relief, equity will assist, but not otherwise.
3. Consideration — gift. A promissory note executed and delivered
by a party as a gift, is not enforceable against the maker's estate, for
want of a valuable consideration to support it. It differs from the case
of the delivery of a note or obligation on a third person, which are the
subjects of gifts inter vivos or causa mortis.
4. Administration — discharging administrator. The county court has
no legal authority to discharge an administrator before the estate is com-
pletely settled, and if it does, the order will be a nullity, and will not
prevent a creditor from presenting a claim and having it allowed.
5. Limitations — claims against estates. A claim against an estate not
exhibited within two years from the granting of administration, may still
be presented and allowed as against anj^ assets not inventoried or ac-
counted for, and this may be done at any time before the debt or claim
is barred by the general limitation law, but the allowance will be at the
expense of the claimant.
Appeal from the Circuit Court of Knox county; the Hon.
Arthur A. Smith, Judge, presiding.
Messrs. Wead & Jack, and Mr. P. H. Sanford, for the
appellant.
Messrs. Douglass & Harvey, for the appellee.
Mr. Justice Scott delivered the opinion of the Court:
Appellee exhibited her bill in the circuit court of Knox
county, on the sixth day of December, 1872, the object of
648 Blanchard v. Williamson. [Sept. T.
Opinion of the Court.
which was to compel appellant, who was executrix of Mary
Gardner, deceased, to pay her the amount of a certain promis-
sory note, alleged to have been made by the decedent.
It is charged, that a large amount of assets came to the
hands of appellant, as executrix, which she failed to cause to
be inventoried as the law directs, and it is sought to compel
the payment of the, alleged indebtedness out of the uninven-
toried assets.
The record presents a rather singular state of facts. The
allegations in the bill are, that on the first day of January,
1857, Mary Gardner, for a valuable consideration, executed
to appellee a promissory note for $1000, due in one year after
date, with ten per cent interest, until paid, which note, it is
alleged, was delivered to her, but afterwards became lost, and
its whereabouts unknown to her, until within the year pre-
vious to the filing of the bill. It is further charged, in the'
bill, that Mary Gardner made a will, by which, after direct-
ing the payment of all her just debts, she devised the residue
of her estate.
The proof shows, that Mary Gardner was the mother of
appellant and appellee ; that they both, for many years pre-
vious and at the time of her death, resided with her as mem-
bers of her family. Her death occurred in June, 1866, and
in July following her will was duly admitted to probate in
the proper office.
Appellee states, in her testimony, she had no knowledge
of the existence of the note until some time within the year
prior to filing her bill. It was then, by mere accident, dis-
covered among some notes which were regarded as of no value.
She states she had two on which she never expected to get
anything ; that she kept them in a pocket-book, among some
paper rags in the lumber room. Her mother, she says, had
access to it, and knew where she kept the pocket-book. When
about to start to California, she placed it in the lid of her
trunk. When packing her trunk to return to this State, she
saw what she supposed were the two worthless notes, but on
1873.] Blakchaed v. Williamson. 649
Opinion of the Court.
opening one of the papers found it was the note in contro-
versy. Her mother, subsequent to the date of this note, had
made her valuable gifts of real estate and other property,
and although she had frequent private conversations with
appellee about what she would receive of her property after
her death, her mother never mentioned the existence of the
note. It seems certain, from the evidence, the note is in the
handwriting of decedent, but there is no consideration shown,
and, indeed, the facts show conclusively there was no valu-
able consideration whatever. Nor is it shown there was any
delivery to appellee, unless we infer what is not proved : that
the deceased herself placed the note among the old papers of
appellee, for her benefit.
The right to the relief sought seems to be predicated upon
two grounds :
First — The executrix, at the expiration of two years from
the granting of letters, having reported there were no claims
established against the estate of the testatrix, was discharged,
by order of the county court, from further administration.
Second — A large amount of assets had come to the hands
of the executrix which she had failed to inventory.
It is not perceived how a court of equity can obtain juris-
diction for either cause suggested. The most favorable con-
sideration appellee can claim is, that the facts, as alleged in
her bill, shall be taken as true ; and conceding that the note,
as there stated, was executed for a valuable consideration,
and delivered to her, but subsequently lost, this fact would
afford no excuse for not presenting her claim* within two
years for allowance against the estate, so that, if just, it could
have been paid in due course of administration. The note
was merely the evidence of the indebtedness, and the claim
could have been presented for the original consideration.
Appellee can not be heard to say she did not know of the ex-
istence of the note, for she alleges, in positive terms, it was
given for a valuable consideration and delivered to her, but
afterwards lost. She is bound by the allegations of her bill.
650 Blanchard v. Williamson. [Sept. T.
Opinion of the Court.
No principle of law is better settled, than, where the law affords
a remedy, and the party neglects to avail of it, equity will
not assist him after his rights have been barred by the Statute
of Limitations.
Nor can the order of the county court, discharging the exe-
cutrix from further administration of the estate, excuse the
presentation of the claim for allowance. Such an order is a
nullity, until the estate had been administered according to
law. Had it appeared the executrix had refused to act, or
had been guilty of improper conduct, the court could right-
fully remove her and appoint one that would act ; but there
was no ground of complaint alleged against her. The order
was simply to discharge her from further administration of
the estate. The statute has conferred no power upon the
county court to make such an order, until the estate has been
duly administered, and it could not operate to affect the rights
of creditors.
It is true, the statute requires claims of the class to which
appellee's belongs shall be exhibited within two years from
the granting of letters, or be forever barred, unless the credi-
tor shall discover other estate not inventoried or accounted
for, saving, however, to certain persons named and to persons
"beyond seas," the term of two years, after their respective
disabilities are removed, in which to present their claims.
Appellee was clearly within one of the saving clauses of
the statute. It is alleged in the bill, and the proof amply
sustains the allegation, there was property sufficient to pay
her claim, that was never inventoried or accounted for.
No reason is shown why she did not present her claim and
have it allowed under the provisions of the statute. The law
has prescribed no period in which a party can present his
claim against an estate. It is apprehended he might do it at
any time before the debt itself is barred by the Statute of
Limitations, but after the lapse of two years after the grant-
ing of letters it is to be at the expense of the claimant. The
bar is as to the payment of claims out of effects previously
1873.] Blanchaed v. "Williamson. 651
Opinion of the Court.
inventoried, but there does not seem to be any bar as to the
payment of claims out of property not inventoried or ac-
counted for, other than what is to be found in the general
limitation laws.
It is an elementary principle, that where the law affords a
party an adequate remedy, he must pursue it. The facts in
this case afford no reason for a departure from this well es-
tablished rule. The claimant was under no disabilities, and
there was nothing to prevent her from presenting her claim
against the estate, and, if just, in procuring its allowance.
She must first pursue the remedy given by the statute.
The case of Harris v. Douglas, 64 111. 466, is conclusive on
this point. It was there said : "Ordinarily the claimant has
a complete and ample remedy at law, and such party will be
required to pursue it. A party may not, in the first instance,
file a bill to enforce the payment of his claim against the
estate. A court of equity will not assume jurisdiction, except
in extraordinary cases, where the remedy afforded by the stat-
ute is inadequate. It is for the very plain reason, the statute
has pointed out a very different mode, and the party must
pursue the remedy provided by law."
The law may now be regarded as settled, in this State, at
least, a court of equity will not assume jurisdiction until the
claimant shall have exhibited his claim and had it allowed in
the county court, and then, if any special reasons that may be
deemed sufficient can be assigned why that court can not
afford the requisite relief, equity will assist him, but not
otherwise. Armstrong v. Cooper, 11 111.561; Freeland, Exi\
v. Dazey, 25 111. 296.
But if we consider the case as made by the proof, which is
widely different from the case stated in the bill, there is no
ground for relief, either at law or in equity. Conceding all
that appellee claims, it was only a promise to make a gift. It
is not pretended there ever was any valuable consideration
for the note. If the decedent placed the note where it was
subsequently found, there is no evidence as to her intentions.
652 Blanchard v. Williamson. [Sept. T.
Opinion of the Court.
The evidence is silent upon this question. Even if it was
originally intended for the benefit of the payee, the maker
may have retracted that purpose. There exists the locus peni-
tential so long as the gift is incomplete, and the evidence war-
rants the presumption it may have been withdrawn in this
case.
It is not claimed the note is a donatio causa mortis, but it
is insisted its validity may be maintained on the ground it is
a gift inter vivos. We can not concur in this view. Personal
chattels, bonds or choses in action may be the subject of dis-
posal as gifts, either inter vivos or causa mortis, but it is indis-
pensable, in every instance, the thing intended to pass should
be actually delivered. A gift is not perfect until a delivery
takes place. A parol promise to pay money is no more a
ground of action than a promise to deliver a chattel as a gift.
Pearson v. Pearson, 7 Johns. Chy. 26.
If a party delivers his own promissory note as a gift, it is
but a promise to pay a sum certain at a future day, and we
are not aware such a promise can be enforced, either at law
or in equity. It could not be enforced against the maker in
his lifetime, and his representatives could defend against it
on the ground there was no consideration. 2 Parsons on
Notes and Bills, 54, and notes; 2 Kent Com. 438.
The case of Orum v. Thornley, 47 111. 192, cited by counsel,
is not in conflict with the views we have here expressed, but
in entire harmony. The gift, in that case, consisted of bonds
and notes of third parties, and were actually delivered to the
donee. The authorities all agree that such a gift may be
maintained.
For the reasons indicated, the decree is reversed and the
bill dismissed.
Decree reversed,
Mr. Chief Justice Breese dissents.
Mr. Justice Craig, having been of counsel in the court
below, took no part in the consideration of this cause.
1873.] Mahon et at. v. Daly. 653
Statement of the case.
William F. Mahon et al.
v.
James H. B. Daly.
1. Contract to give employment— whether it must be mutual. Where,
by the terms of a contract, the defendant covenanted to employ the
plaintiff for a definite time, it is wholly immaterial, in a suit for wages
on such contract, whether the plaintiff agreed in said contract to serve
the defendant during the time specified or not, if he, in fact, was ready
and offered to do so.
2. Measure of damages — for breach of contract to give employment.
The defendant entered into a contract with the plaintiff to employ him,
at a specified rate per month, for a definite length of time. The plain-
tiff entered upon the employment, but before the expiration of the time,
the defendant discharged him. The plaintiff thereupon sued, claiming
pay, at the rate fixed by the contract, for the length of time he had served :
Held, it was not error to exclude evidence offered by the defendant as to
the value of plaintiff's services.
3. If, however, the plaintiff had gone upon the indebitatus count, on
the theory that the contract had been rescinded, he would have been con-
fined, in his recovery, to the quantum meruit, and the evidence as to the
value of the services, offered by the defendant, would have been compe-
tent.
Appeal from the Superior Court of Cook county; the Hon.
William A. Porter, Judge, presiding.
Daly and the Mahons had been co-partners in the whole-
sale millinery business, and, August 27, 1872, they entered
into an agreement, under seal, for a dissolution of their co-
partnership, Daly thereby transferring to the Mahons all his
interest in the partnership property, and they agreeing to in-
demnify him against all the liabilities of the firm. As a part
of that agreement, was the following :
"And in consideration thereof, the said William F. Mahon
and Joseph J. Mahon hereby promise, undertake and agree,
to and with the said James H. B. Daly, to assume all the law-
ful debts, liabilities and obligations of said firm of Mahon,
Daly & Company, of every kind and nature, wheresoever,
654 Mahon et al. v. Daly. [Sept. T.
Statement of the case.
heretofore and hereafter incurred, and to pay, satisfy and dis-
charge the same, and also to save, indemnify and hold harm-
less the said James H. B. Daly of and from all individual
liability of, upon or by reason of any debt, obligation or lia-
bility of said firm to any other person, corporation or firm,
incurred by said James H. B. Daly by reason of his connec-
tion with said firm of Mahon, Daly & Company; and the
said William F. Mahon and Joseph J. Mahon hereby further
agree with said James H. B. Daly to hire and employ him, said
James H. B. Daly, as , in any business which may be
carried on by them, until the first day of January, eighteen
hundred and seventy-three, and that said James H. B. Daly
will continue in such employment until said date, and per-
form the duties thereof; and that said William F. Mahon and
Joseph J. Mahon shall and will, during the term of such
employment, pay to said James H. B. Daly a salary and com-
pensation, for his services as such , at the rate of one
thousand two hundred and fifty dollars per month, payable
semi-monthly, upon the full and satisfactory performance of
such services by said James H. B. Daly."
Daly went into their employment as salesman and clerk,
soon after the -dissolution, and so continued until October
1, 1872, when the Mahons discharged him, whereupon he
brought his action upon the contract, setting it out in hcec
verba, to recover for his services up to the time of being dis-
charged, according to the price or terms fixed by the contract.
The parties having waived a jury, the case was tried, by con-
sent, before the court. On the trial, the defendants gave
evidence tending to show that Daly was inattentive to his
duties, and sometimes came into the store under the influence
of intoxicating drinks, as showing causes for his discharge.
The evidence, as to those matters, was conflicting, and the
court finding the issues for plaintiff, assessed his damages at
1573.90, and, overruling defendants' motion for new trial,
gave judgment against them for that amount, and they ap-
pealed to this court.
1873.] Mahon et al v. Daly. 655
Opinion of the Court.
Mr. B. D. Magruder, for the appellants.
Messrs. Nissen & Barnum, for the appellee.
Mr. Justice McAllister delivered the opinion of the
Court :
This action, as we understand it from an examination of
the pleadings and evidence, was not brought by Daly to
recover damages for a wrongful discharge from service, by
the Mahons, before the expiration of the time for which they
had agreed to employ him, nor to recover the stipulated wages
for the whole of that time, but simply for the balance alleged
to be due, according to the terms of the contract, for the time
during which he was in their actual service.
The declaration contains counts upon the special agree-
ment, alleging, as breach, the non-payment of the wages
specified, and has, also, the indebitatus counts for work and
labor. If, however, the plaintiff had gone upon the indebita-
tus counts, on the theory that the contract had been rescinded,
he would have been confined, in his recovery, to a quantum
meruit. In that case, the evidence offered by the defendants
bearing upon the value of plaintiff's services would have
been admissible, and there would be error in its exclusion;
but the case was, in fact, tried upon no such theory. The
contract, instead of being treated as rescinded, was regarded
as open and still in force, so far as the plaintiff's theory of
the case was concerned. The defendants, it is true, en-
deavored to establish that plaintiff had committed such a
breach of his implied obligations as to justify them in treat-
ing the contract as at an end, and discharging him from ser-
vice. There was a direct conflict of evidence as to the fact
of misconduct, upon which defendants assumed to exercise
their right of rescission. The question of the credibility of
witnesses, the duty of passing upon and reconciling or reject-
ing the conflicting evidence, were matters for the court, sitting
in the place of a jury, with whose finding we can not interfere.
656 Eawson v. Clark et al. [Sept. T.
Syllabus.
In the view we take of the case, the question whether the
plaintiff agreed to serve the defendants until the first of
January, 1873, is wholly immaterial, for it is clear, from the
terms of the agreement, that the defendants covenanted to
employ him until that time, at a salary of $1250 per month,
payable semi-monthly. The evidence tends to show that the
plaintiff was ready and offered to perform during the whole
time, but that he was prevented from so doing by the acts of
the defendants.
The court, sitting in the place of a jury, found the facts
in plaintiff's favor, and we perceive no objection, upon legal
grounds, to the finding.
The judgment of the court below will be affirmed.
Judgment affirmed.
Stephen W. Kawson
V.
Robert Clark et al.
1. Contract — wlien full performance prevented. Where a party, under a
contract with, the owner of a building, then being erected, to manufacture
and put into the building certain iron work, had completed the work, ex-
cept putting it into the house, and was prevented from so doing by the
owner not being ready with the other work to receive the iron work, and
the building was burned before the work could be done after notice : Held,
that as the workman was no way in default, up to the time of the destruc-
tion of the building, and there being no building provided afterwards to
receive the work, he was entitled to recover under the common counts for
the material manufactured and labor done.
2. Same — estimate of architect. Where a party sought to recover the
price of certain iron work manufactured for a building, which he was to
put up and be paid for upon the estimate of an architect, the building hav-
ing been destroyed by fire before the same could be put up, and the work-
man being in no default, it was held, that the case contemplated for the
architect's certificate never arose, and that a recovery could be had with-
out it, according to the contract price for the iron work manufactured.
1873.] Eawson v. Clark et al. 657
Opinion of the Court.
3, Same — construed as to risk. Where a contractor agreed to manufac-
ture the iron work for a house being built, and put up the same, the work
to be at his risk until the building was completed, it was held, that the
manufacturer did not assume the risk of the building, which was destroyed,
but only his materials furnished, and therefore that the destruction of the
building by fire did not operate to prevent him from recovering the price
of the iron work manufactured and ready to be delivered.
Appeal from the Circuit Court of Cook county; the Hon.
John G. Rogers, Judge, presiding.
This was an action of assumpsit, brought by Robert Clark
and John T. Raffin, surviving partners, etc., against Stephen
W. Rawson, to recover a sum claimed to be due from the
defendant, for certain materials furnished and labor performed
by the plaintiffs. A trial was had, which resulted in a ver-
dict and judgment in favor of the plaintiffs for $206, the price
of the materials. To reverse this judgment, the defendant
appealed to this court.
Messrs. Sawin & Wells, for the appellant.
Mr. Wm. M. Johnston, for the appellees.
Mr. Justice Sheldon delivered the opinion of the Court :
About the middle of September, 1871, a written contract
was entered into between the parties to this suit, whereby
the appellees were to manufacture and place in the building
of the appellant, at the corner of Madison and Dearborn
streets, in the city of Chicago, certain iron work for a cer-
tain price, 85 per cent thereof to be paid on certificate of the
architects, as the work progressed, and 15 per cent when com-
pleted, the work to be at the contractors' risk until completion.
After all the iron work had been manufactured, but before
any of it had been set up, the building was wholly destroyed
by fire, October 8, 1871, and has not been rebuilt.
This was an action brought by the appellees to recover for
the price of the iron work — they recovered in the court below
and the defendant appealed.
42— 70th III.
658 Rawson v. Clark et at [Sept. T.
Opinion of the Court.
It may well be, as insisted on by appellant's counsel, that
there could be no recovery under the special count upon the
contract, because of the variance between the contract as
proved and as laid in the declaration. But we perceive no
sufficient reason why a recovery might not be had under the
common counts for labor done and materials furnished. So
far as respects the manufacture of the iron work, there had
been a fulfillment of the contract on the part of appellees,
and nothing more remained to be done but the payment of
the price.
It was in evidence that the price agreed upon for the iron
work was §206, and for putting it up $70 or $75, though in
the written contract a certain sum was to be paid for the
whole ; that, on the 28th of September, 1871, the work had
all been manufactured, and was ready to be delivered, and
was laid by at the foundry; that about a week before the fire,
and within the time limited for the completion of the con-
tract, appellees commenced to deliver the iron work, and did
deliver one load, a column and plate; that the building was
not then ready for the work, and appellant directed that no
more should be sent until it should be ready, and promised
to notify appellees when ready. On Saturday afternoon, they
were notified that the building was ready, and on the follow-
ing Sunday night, October 8, 1871, the building was wholly
destroyed by fire. The time required to put up the work
would have been about two days. After the fire, a bill of
$206 for the iron work was presented to appellant, and he
denied his liability.
Appellees were no way in default. They were ready and
offered to fully perform within the time limited, but were
prevented by appellant.
The reason of their not entirely completing their contract
by placing the iron work in the building, was, the default of
the defendant in not having a building provided for the
purpose.
The position is taken that, under the contract, the appellees
1873.] Miller et al v. Goodwin et al. 659
Syllabus.
assumed the risk of the destruction of the building by fire.
That is not the true construction of the contract. It was
the material which was to be at the risk of appellees, not
the building.
It is insisted that the obtaining of the architect's certifi-
cate, was a condition precedent to the right to bring the
action.
But the case contemplated for the giving of the architect's
certificate never arose. The certificates were to be given as
the work progressed, i. e. as the work of setting up the iron
work in the building progressed. None of it was placed in
the building, or delivered on the ground, except one load.
The price of the iron work was a matter agreed upon, as was
testified to.
And the appellant placed his refusal to pay, on the ground
of no liability to pay, not on that of the want of an archi-
tect's certificate.
We are of opinion the verdict was sustained by the evidence.
The judgment is affirmed.
Judgment affirmed.
Maetin B. Millee et al.
V.
Jeeemiah Goodwin et al.
1. Evidence— journal entries of the two houses of the legislature. A
transcript from the journal record of either house of the legislature, of
its proceedings, properly certified, is admissible in evidence to prove the
facts therein recorded. It is not necessary to produce the original min-
utes made by the officers of the respective houses, or copies thereof.
2. Same—; journals not required to be signed. The law does not require
that the officers of the General Assembly shall sign the record of the pro-
ceedings of either house, or that the copying clerks shall certify to the
accuracy of their work, in order to make the same admissible as evidence.
3. Municipal corporations — contracts, without authority of law, void.
Contracts of public corporations, made through their officers without
660 Miller et al. v. Goodwin et al. [Sept. T.
Opinion of the Court.
authority of law, are void, and in an action upon them, the corporation
may successfully interpose the plea of ultra vires, setting up as a defense
its own want of power under its charter, or constituent statute, to enter
into the contract.
Appeal from the Circuit Court of Kane county; the
Hon. Silvanus Wilcox, Judge, presiding.
This was a bill in chancery, filed by Jeremiah Goodwin
and a number of other tax-payers of Aurora township, in
Kane county, against Martin B. Miller, collector of that
township, and Henry C. Paddock, county treasurer of Kane
county, to restrain the collection of a tax levied to pay inter-
est and a portion of the principal of $10,000 in bonds, issued
by the town of Aurora on a subscription to the capital stock
of the Ottawa, Oswego and Fox River Valley Railroad Com-
pany. The opinion of the court states the grounds upon
which the relief was granted.
Messrs. EldPvIDGe & Lewis, and Mr. B. F. Parks, for the
appellants.
Mr. S. W. Brown, for the appellees.
Mr. Justice Scholfield delivered the opinion of the
Court :
In Ryan v. Lynch et al. 68 111. 160, we held, on the evidence
then before us, that the purported act entitled "An act
authorizing certain cities, counties, incorporated towns and
townships, to subscribe to the stock of certain railroads,"
approved February 18, 1857, (Public Laws of 1857, p. 225,)
was not passed by the Senate in conformity with section 2,
article 3, of the constitution of 1848, and was, therefore, not
a law. The evidence upon which we came to that conclusion
was, a transcript of the Senate journal, certified by the Secre-
tary of State, in proper form. The same evidence is before
us in the present case, but there is also evidence introduced
by appellants for the purpose of impeaching this transcript,
1873.] Miller el ah v. Goodwin et al. 661
Opinion of the Court.
now before us, and our first inquiry must be as to the effect
of that evidence.
It is shown, by the evidence, that the minutes of the pro-
ceedings of the General Assembly of 1857 were taken down
by the proper officers of the respective houses, on sheets com-
posed of blanks, prepared for conveniently taking the "ayes"
and "noes," on "cap" paper, which were fastened together at
the end of each day's proceedings, and subsequently deposited
with the Secretary of State. These the Secretary caused to
be copied, in regular and proper order, in a bound volume
prepared and kept in his office for that purpose, which was
called "the journal record." When the minutes were thus
copied, they were sent to the public printer, and they were
never returned. The transcript in evidence is of "the
journal record," in the Secretary's office, and not of the orig-
inal minutes prepared by the officers of the General Assembly.
It is insisted that the transcript of the minutes alone, is ad-
missible as evidence.
The provision in the constitution of 1848, requiring each
house to keep and publish a journal of its proceedings, is
precisely the same as that of the constitution of 1818. The
constitutional mandate is simply that, "each house shall keep
a journal of its proceedings, and publish the same." The
requirement, that any evidence of such journal shall be kept
in the office of the Secretary of State, as well as when and
how evidence of the same, admissible in courts of justice,
shall be obtained, is merely a statutory regulation.
It was provided, by section 3, chapter 84, Rev. Stats, of
1845, that the journal of each house of the General Assem-
bly shall be kept in well bound books; and, by sections 5 and
8, chapter 96, of the same statutes, they were required to be
deposited with the Secretary of State.
By section 3 of "An act to provide for copying and dis-
tributing the laws and journals, and for other purposes," in
force February 12, 1849, (Laws of 1849, p. 95,) the Secretary
of State is required, within thirty days previous to the meet-
662 Millee et ah v. Goodwin et ah [Sept. T.
Opinion of the Court.
ing of any future General Assembly, to advertise for proposals
for copying the laws, joint resolutions and journals of the
General Assembly. And, by section 4 of the same act, he is
required to furnish a well bound book, in which the jour-
nals shall be copied. These sections are in pari materia with
the preceding sections referred to of the Revised Statutes of
1845, and they must be construed together. It is obviously im-
practicable to record the proceedings of each house, as they trans-
pire, in "well bound volumes," as must have been well known
to the members of the legislature; yet the journals must thus
be kept, and it is certainly impossible that the journals shall
be copied in a well bound book, unless there is something to
copy from. Plainly, then, the current minutes, taken by the
clerks and secretaries, and their assistants, in the respective
houses, were not understood to be "journal records," but min-
utes merely, as they were, in fact, to be transcribed into such
records. Of necessity, the minutes could not be in a conve-
nient and permanent form for preservation, and they were,
therefore, required to be copied into a record in which they
could be preserved. This view is greatly strengthened by the
fact that there is no other possible motive which we can con-
ceive for requiring the journals to be copied into a bound
record. Public information of the proceedings is required to
be furnished by publication, and if this record is not designed
to be a permanent depository of the evidence of the pro-
ceedings required to be copied into it, then we must presume
that the law requires the making and preservation of a pub-
lic record, with no end in view. This is not admissible.
It is a sufficient answer to the objections urged, that the
officers of the General Assembly have not signed the record,
and that the copying clerks have not certified to the accuracy
of their work, that these things are not required by the law.
It is presumed that a record, made pursuant to law, is accu-
rate, until the contrary is successfully established. Deed rec-
ords and records of the proceedings of courts, contain no
certificates by the clerks by whom they are made, appended
1873.] Miller et al. v. Goodwin et al. 663
Opinion of the Court.
either at the close of the volumes or elsewhere, that they are
accurately and truly made, and we have never yet heard that
copies of them might not be read in evidence, in proper cases,
on account of this omission. The guaranty of accuracy and
fidelity, in all such cases, is found in the obligations of official
duty.
We are of opinion, then, that the transcript in evidence
was of the proper record, and that it is conclusive against the
validity of the pretended act of February 18, 1857, before
referred to.
In no other respect than the one just noticed, does the
present case materially differ from that of Ryan v. Lynch
et al. supra, and we deem it necessary to add but little to what
we said in that case. We there said : "The bill * *
never became a law, and the pretended act conferred no
power. * * * It follows that the bonds were not
merely voidable, but that they were absolutely void for want
of power or authority to issue them, and, consequently, no
subsequent act or recognition of their validity could so far
give vitality to them as to estop the tax-payers from denying
their legality." To this, we add the following quotation from
Dillon on Municipal Corporations, section 381 : "The gen-
eral principle of law is settled, beyond controversy, that the
agents, officers, or even city council, of a municipal corpor-
ation, can not bind the corporation by any contract which is
beyond the scope of its powers, or entirely foreign to the pur-
poses of the corporation, or which (not being, in terms, author-
ized,) is against public policy. This doctrine grows out of
the nature of such institutions, and rests upon reasonable and
solid ground. The inhabitants are the corporators — the offi-
cers are but the public agents of the corporation. Their
duties and powers are prescribed by statute or charter, which
all persons not only may know, but are bound to know. The
opposite doctrine would be fraught with such danger, and
accompanied with such abuse, that it would soon end in the
ruin of municipalities, or be legislatively overthrown. These
664 Wray et al. v. The People. [Sept. T.
Syllabus.
considerations vindicate both the reasonableness and neces-
sity of the rule, that the corporation is bound only when its
agents or officers, by whom alone it can act, if it acts at all,
keep within the limits of the chartered authority of the cor-
poration. * * * It results from this doctrine, that
unauthorized contracts are void, and, in actions thereon, the
corporation may successfully interpose the plea of ultra vires,
setting up, as a defense, its own want of power, under its
charter or constituent statute, to enter into the contract."
See, also, sections 749, 767, and notes.
The decree of the court below will be affirmed.
Decree affirmed.
William Wray et al.
V.
The People of the State of Illinois.
1. Counter affidavits, on a motion to set aside the forfeiture of
a recognizance supported by affidavit, are not admissible.
2. Forfeiture of recognizance — grounds for setting aside. Where
it is shown that the failure of a party to appear, according to the condition
of his recognizance, was not for the purpose or with intent to evade the
law, and that he is guilty of no laches or negligence in appearing at the ear-
liest opportunity after the cause which kept him away is removed, he will
be entitled to be discharged from a judgment of forfeiture, upon the pay-
ment of costs.
3. Where a party, entering into recognizance to appear and answer
to a criminal charge, fails to appear at the time required,' in consequence
of being under bond to appear at the same time in a foreign court, and to
save his security in such bond, this will afford good cause for setting
aside a forfeiture of his recognizance, if he in good faith surrenders him-
self as soon as he can after being released from attendance in the foreign
court, and within a reasonable time after the forfeiture.
4. Same — of the discretion of the court to relieve against forfeiture. The
statute giving the circuit courts discretion to relieve against a forfeited
recognizance does not mean an arbitrary discretion, but a sound legal
one, and if abused or improperly exercised, this court will review and
correct its exercise.
1873.] Wray et al. v. The People. 665
Opinion of the Court.
Appeal from the Criminal Court of Cook county; the Hon.
Joseph E. Gary, Judge, presiding.
This was a scire facias, against William Wray and Parnell
Munson, upon a forfeited recognizance. The opinion of the
court contains a sufficient statement of the facts.
Mr. E. W. Evans, for the appellants.
Mr. Charles H. Reed, State's Attorney, for the People.
Mr. Justice Craig delivered the opinion of the Court:
At the October term, 1872, of the Criminal Court of Cook
county, William Wray was indicted for an assault with a
deadly weapon upon one Condon, with intent to murder.
On the 6th day of December following, Wray, in open
court, entered into a recognizance, with Parnell Munson as
his surety, in the penal sum of $4000, for his appearance
at the January term, 1873, of the court.
On the 9th day of January, 1873, and at the January term
of the Criminal Court, Wray failing to appear, the recogni-
zance was declared forfeited, and on the same day a writ of
scire facias was issued on the recognizance, returnable on the
first Monday of February, 1873, which was served on Mun-
son, and returned not found as to Wray.
On the 18th day of February, Wray came into court and
surrendered himself, and was on the same day taken into
custody by the officers of the court, and placed in jail, where
he remained until he was tried on the indictment.
On the 19th day of February, Munson paid all costs on
the scire facias case, and on the 20th a motion was made by
Wray and Munson to set aside the order of forfeiture of the
recognizance and for the discharge of both defendants, which
motion the court overruled, and rendered final judgment
against Wray and Munson for $4000.
The defendants brought the case to this court by appeal.
Q6Q Weay et al. v. The People. [Sept. T.
Opinion of the Court.
In support of the motion to set aside the forfeiture, Wray
filed his own affidavit, in which he swears that there was a
suit pending in the State of Minnesota against him, in which
he had been required to give bail for his appearance at the
January term of a court there to be holden ; that one B. C.
Gates, of Kane county, was his surety; that, in the first part
of the month of January, he received a letter, sent him by
his bail, from the State's Attorney in Minnesota, in which he
was notified it would be necessary for him to be present in
the State of Minnesota in and during the month of January,
or his bail bond would be forfeited; that, after receiving such
letter, and on the 8th day of January, he left the city of
Chicago, and went to Minnesota to attend to that suit, and as
soon as he could get through with the cause there pending,
he returned to Chicago to attend to the case in the Criminal
Court. He also filed the affidavit of his bondsman, B. C.
Gates, which corroborates his.
The State's Attorney of Cook county filed an affidavit of
one Merrill, which tended to show that Wray had left on the
8th of January for the purpose of avoiding a trial at that time.
Prior to 1869, there was no law in this State that author-
ized the court to set aside a forfeiture of the recognizance as
to the principal therein. The statute authorized the security
to surrender the principal, and, upon payment of costs, ob-
tain a discharge, at any time before final judgment, as to
himself. Weese v. The People, 19 111. 646.
On the 31st day of March, 1869, the legislature passed an
act to amend the criminal code of the State, the 9th section
of which provides that, after forfeiture of the recognizance,
and before final judgment, the court may, in its discretion,
upon the payment of costs, set aside such forfeiture, upon the
accused being brought or coming into open court and show-
ing to the court, by affidavit, that he was unable to appear in
court according to the terms of the recognizance, by reason
of sickness, or some other cause which shall satisfy the court
1873.] Wkay et at. v. The People. 667
Opinion of the Court.
that the accused had not been guilty of any laches or negli-
gence. Public Laws of 1869, page 113.
It will be observed that the evidence upon which the court
is to act is the affidavit produced by the accused in support
of the motion. The statute neither by terms nor implication
requires or authorizes the court to hear affidavits on behalf
of the people, in opposition to the motion. There is no pro-
vision of the statute that authorizes the court to form an
issue to be tried on affidavits filed by the accused, in favor of
and by the people, against the motion. It is true, the statute
does not in terms prohibit the people from filing affidavits.
Neither does the statute, which authorizes a party to a cause
pending in court to obtain a continuance grounded on affida-
vit, in terms prohibit the adverse party from filing counter
affidavits in opposition to such motion, yet the construction
that has universally been given to that statute is, that counter
affidavits are not allowed.
The statute for a continuance reads: "Whenever either
party shall apply for the continuance of a cause on account
of the absence of testimony, the motion shall be grounded
on the affidavit of the party so applying, or his or her author-
ized agent."
The statute under consideration reads: "The court may,
in its discretion, set aside such forfeiture, upon the accused
being brought or coming into open court, and showing to the
court, by affidavit, that he or she was unable to appear in
court according to the terms of the recognizance."
Again, the statute which authorizes a change of venue in
civil cases, requires the party applying for such change to
present a petition to the court, accompanied with an affidavit
verifying the facts therein contained. The statute nowhere
prohibits counter affidavits from being filed on the hearing of
such motion; still, the settled practice is, that they are not
allowed.
In a certain class of criminal cases, however, where a peti-
tion is filed, supported by affidavit, for a change of venue,
668 Wray et al. v. The People. [Sept. T.
Opinion of the Court.
there is an express provision of the statute that authorizes
counter affidavits to be filed, and considered by the court.
Upon comparison of the language used in the statute under
consideration with that contained in the statute for continu-
ance and change of venue in civil cases, we can perceive no
reason why one construction should be given to the former
statutes and a different one to the latter.
If the legislature had intended that counter affidavits
should be filed on the hearing of a motion to set aside a for-
feiture of a recognizance, provision would have been made
in the law for such a practice, as was done in the statute pro-
viding for change of venue in criminal cases.
For the reason that the statute does not provide for filing
counter affidavits on the hearing of the motion, the Criminal
Court should not have permitted the affidavit of Merrill to
be filed by the people, and should not have considered it on
the hearing.
On the evidence before the court, aside from the affidavit
filed by the people, we think the defendant Wray showed
sufficient cause to have the forfeiture of the recognizance set
aside.
The affidavits filed by him clearly showed that his failure
to appear in court, in obedience to the requirements of the
recognizance, was not for the purpose or with the intent to
evade the law. He seems to have manifested no design of
evading a trial on the indictment for the crime with which
he was charged, but, on the contrary, as soon as he finished
his business in Minnesota, where he was under bond to
appear, he returned to Chicago, and went before the court
and surrendered himself up for trial, and was tried upon the
indictment and convicted.
Had the defendant remained away until the people could
not produce evidence to convict, and thus defeated a trial and
conviction, that would present entirely a different case.
But the conduct of defendant and the affidavits filed show
that he was acting in good faith. One bond required him to
1873.] Hays v. Cassell. 669
Syllabus.
appear in Minnesota, and the other bond required his appear-
ance in the Criminal Court of Cook county, at one and the
same time. His bondsman notified him to appear in the
former place. When he complied with this duty and legal lia-
bility, and returned in so short a time to answer the require-
ments of the law in the Criminal Court, it can scarcely be
said he was guilty of laches or negligence.
It may be said that the Criminal Court was vested with a
discretionary power to allow or refuse the motion of the
defendants. While the act provides the court may, in its
discretion, set aside the order of forfeiture, the obvious intent
and meaning of the law is, the court must exercise a sound
legal discretion; and when it appears that discretion has
been abused, or not properly exercised, in the administration
of justice, it may often be the duty of appellate courts to
review and correct the decisions of the lower courts.
We are, therefore, of opinion that the order of forfeiture
in the Criminal Court, on the evidence, should have been set
aside, and the defendants released therefrom.
The judgment will be reversed and the cause remanded.
Judgment reversed.
Warren Hays
v.
Robert T. Cassell.
1. Purchaser at judicial sale — whether attorney or client. Where
the attorney of the plaintiff in execution purchases the land sold, in
his own name, taking a certificate of purchase to himself, and pays the
costs only, but no part of the execution, and as attorney gives the sheriff
a receipt for the amount of the judgment, the purchase will be that of
the plaintiff in execution, and the attorney can not assign the certificate
without his authority.
2. Certificate of purchase passes no title. A certificate of purchase
at sheriff's sale of land passes no title to the purchaser, and will not dis-
670 Hays v. Cassell. [Sept. T.
Opinion of the Court.
turb the possession of the defendant in execution until after the time of
redemption has expired, and his title is transferred by the sheriff's deed.
3. Reversal — effect of on party's rights. The effect of a judgment of
reversal is, to restore the defendant to all he has lost by the erroneous
judgment, if the title to the property has not passed by the execution of
the judgment to a third party; and if this is the case, the defendant will
have an action against the plaintiff for full damages.
4. Same — who affected by reversal. If the attorney of a plaintiff in exe-
cution purchases land sold under the execution, on his own account, he
can not be regarded as a bona fide purchaser, so as not to be affected by a
subsequent reversal of the judgment.
5. Setting- aside sale after reversal. Where the judgment under
which a sale of land is made is reversed, the sale may be set aside, on
motion, after the expiration of twelve months, when no deed has been
taken out and the judgment debtor is still in possession.
6. Notice of motion to set aside judicial sale. When a motion is made
to set aside a sale of land on execution, before a sheriff's deed is made, it
is sufficient to give notice thereof to the plaintiff in the execution, who
is the purchaser. The defendant is not required to serve such notice on
an assignee of the certificate of purchase.
Writ of Error to the Circuit Court of Woodford county ;
the Hon. S. L. Richmond, Judge, presiding.
This was a motion to set aside a sheriff's sale of land on
execution, by Robert T. Cassell, the defendant in execution.
The notice of the motion was served on John Clark, the at-
torney of the plaintiff in execution. The opinion of the court
states the other necessary facts, and the grounds of the
motion.
Mr. John Clark, for the plaintiff in error.
Messrs. Ingersoll, Puterbaugh Bros. & McCune, for
the defendant in error.
Mr. Chief Justice Ereese delivered the opinion of the
Court :
This was a motion in the circuit court of Woodford county,
by the defendant in execution, to set aside a sale of land there-
1873.] Hays v. Cassell. 671
Opinion of the Court.
under, for the reason that, since the sale, the judgment on
which it issued had been reversed by this court. Due notice
was given to the purchaser at the sale, who appeared and
resisted the motion.
The judgment under which the proceedings were had was
rendered by the circuit court of Woodford county, at the
April term, 1867. The execution issued thereon bore date
October 22, 1868, and the sale made of the premises in ques-
tion on the 27th February, 1869.
On the same day a certificate of sale was delivered to the
purchaser and filed. In August, 1869, the purchaser assigned
the certificate to one Sowards. Notice of the motion to set
aside the sale was dated March 10, 1870, and the motion duly
submitted to the court at the April term, next following.
The judgment on which the execution was issued was re-
versed by this court at the September term, 1869, and opinion
filed in vacation, January 11, 1870, and the final order then
entered, remanding the cause.
On these facts, the plaintiff in error, who was plaintiff in
execution, makes the point, that the circuit court had no
power to set aside the sale, on motion of the defendant in the
execution, after the expiration of twelve months from the day
of sale.
The plaintiff was not the purchaser at the sale, but his
attorney, and he testifies he made the purchase on his own
account, and not for plaintiff's benefit. He paid no part of
the execution at the time he bid off the property, but the costs
only, and, as attorney, gave to the sheriff a receipt for the
amount of the judgment. Under these circumstances, we are
inclined to hold, the purchase was the purchase of the plain-
tiff in the execution. The certificate of purchase was also
his, and could not be transferred to another without au-
thority.
But, admitting the purchase was the purchase of the attor-
ney on his own account, he knew the record had been taken
to the Supreme Court, and he purchased at his peril, and can
672 Hays v. Cassell. [Sept. T.
Opinion of the Court.
hardly be regarded as a bona fide purchaser. He knew his
client had taken a judgment for an amount larger than the
proof warranted, and knew, therefore, the judgment would be
reversed in this court, where the case was then pending.
The certificate of purchase conveyed no title to the pur-
chaser, nor did it disturb the possession of the defendant;
that still continued in him, and would so remain until fifteen
months had elapsed, and his title transferred by the sheriff's
deed. Mc Lagan v. Brown et al. 11 111. 519.
This being so, there can be no question of the power of the
court to act on the motion, no deed having been made. The
effect of a judgment of reversal is, to restore the defendant to
all he may have lost by the erroneous judgment, if the title
to the property has not passed, by the execution of the judg-
ment, to a third party. In such case he would have an action
against the plaintiff, to recover full damages.
No deed having been executed, and the defendant remain-
ing in possession of the land sold, he was in a position to ask
the court to set aside the sale, on making proof that the judg-
ment had been reversed, for there was then no judgment to
support the sale. That his motion was not made within the
time allowed for redemption, the facts show he could not
know of the reversal until the judgment of this court was
finally announced, and that was after one year had elapsed.
Deeming, as we do, the real party in interest in this question
to be the plaintiff in the execution, we do not consider it was
necessary to notify the assignee of this motion. Indeed, we
do not perceive, if Sowards or Stubbs was a bona fide assignee,
how it was possible for the defendant in the execution to ob-
tain a knowledge of that fact, as the law does not require the
assignment to be recorded, and the assignor does not claim
that he notified the defendant of the assignment.
In such respect as either of them may be injured by allow-
ing this motion, the remedy is against their assignor ; but in
respect to them, or either of them, the plaintiff in error can
have no interest or concern. If all the interest in this sale is
1873.] Hall v. Rose Hill, etc., Road Co. 673
Syllabus.
centered in Sowards or Stubbs, then the plaintiff in error
would seem to be grasping at a shadow.
The judgment of the circuit court is affirmed, for the rea-
sons given.
Judgment affirmed.
Norman Hall
v.
The Rose Hill and Evastston Road Company.
1. Witness — credibility. When a witness testifies that he previously
made an affidavit relating to matters in dispute, simply on the infor-
mation of others, without stating that it was made on information,
and it further appears that his memory is defective, or that he is unfair
and biased in his testimony, and he is flatly contradicted in some of his
most important statements, by other witnesses, the jury will be fully war-
ranted in disregarding his testimony.
2. Assignment — of stock of railway company. Certificates of stock in
a railway company, unlike negotiable paper, can only be assigned by an
act of the company, or in pursuance of a by-law.
3. Same — issue of new certificate of stock. If the purchaser of stock of
a railway company applies to procure a transfer of the same to him, and
the directors order the transfer to him, and new certificates to be issued
to him, he will become an innocent holder, if he acts in good faith, and
the company will be estopped to deny that the stock thus issued is
valid.
4. Same — issue of new, without taking up old certificates of stock. If the
secretary of a railway company issues new certificates of stock to one
claiming to have purchased shares therein, without taking up or cancel-
ling the original, the new certificates will be invalid.
5. Evidence — certificate of stock, prima facie. The certificate of stock
in a railway company, issued by its secretary, is prima facie evidence
that it was regularly issued, but this presumption may be overcome by
other evidence, as, by showing that no order was passed for its issue. If
the order was passed, and not entered of record, that may be shown by
the holder.
Appeal from the Circuit Court of Cook county; the Hon.
John G. Rogers, Judge, presiding.
43— 70th III.
674 Hall v. Rose Hilt,, etc., Road Co. [Sept. T.
Opinion of The Court.
Mr. George Willard, for the appellant.
Mr. J. V. LeMoyne, for the appellee.
Mr. Justice Walker delivered the opinion of the Court:
Appellant, claiming to hold and be the owner of five shares
in the stock of appellee's company, brought suit for the recov-
ery of a dividend of $10 on each share. The defense inter-
posed was, that these shares were spurious, and issued without
authority of the board of directors. A trial was had by the
court and a jury, resulting in a verdict and judgment in
favor of the company. A motion for a new trial was inter-
posed, but overruled by the court, and the case is brought
here on appeal.
The question raised by the record is one of fact, except the
refusal of the court to give two of appellant's instructions.
The witness upon whom appellant relied to prove his case,
seems to have had a defective memory, or at the least to have
testified under a strong bias. His version of the matter is. to
say the least, confused and contradictory, with a number of
corrections of previous statements. Again, he swears that he
previously swore to an affidavit, in reference to this stock,
simply on what he says was information derived from others,
without knowing the facts, and yet he did not state that it
was on such information.
Such admitted recklessness on the part of a witness goes a
great way to impair confidence in his evidence, and, when
added to his defective memory or unfairness in giving his
testimony, it fails, on paper, to impress us with any great
confidence in its weight or force. Again, he is flatly contra-
dicted in some of his most important statements, by other
witnesses, who carefully examined the books of the company,
and had every facility of knowing their contents, which he
possessed, and we are fully satisfied that the jury were entirely
warranted in disregarding his testimony
1873.] Halt, v. Rose Hill, etc., Road Co. 675
Opinion of the Court.
It seems not to be disputed, that the stock in question was
issued to replace shares that had been issued to other parties.
and claimed to have been assigned, but never cancelled.
Whilst Sherman, the secretary, swears that the board of di-
rectors ordered him, at the meeting on the 3d of June, to issue
the certificate to appellant, two other witnesses swear there
was no meeting on the 3d of June, but that it was on the next
day. They also state positively that they had examined the
minutes of that meeting, and that nothing of the kind appears
in its proceedings. In this he is flatly contradicted by two
apparently credible witnesses, whose evidence is not assailed.
The certificates of stock issued by the company could only,
by their own terms, be transferred on the books of the com-
pany on the surrender of the certificate itself. In fact, the
secretary of the company had no power, unless authorized by
its by-laws, to issue stock or transfer it, without an order of
the board of directors. It is, no doubt, true, that the fact
that the certificate is held by an individual is prima facie evi-
dence that it was regularly issued. But that presumption
is overcome by showing that it was issued without authority,
which the jury have found was done in this case. These
certificates of stock are unlike negotiable paper. They can
only be assigned by an act of the company, and when the
proposed purchaser applies to procure the transfer, he can
always learn if there is a defense, or that the stock is illegal.
If, when he applies, the directors order the transfer to be made,
if not himself acting in bad faith, he becomes an innocent
holder, and the company are thus estopped to deny that the
stock thus issued is valid.
If, as seems to be true in this case, original stock was out-
standing for the same amount, and for which this was issued,
and that was the only consideration, it would manifestly be
invalid. The stock first issued, until taken up, or at least
canceled, would be still valid and binding. And we under-
stand Turner as saying that he had purchased that stock of
Benson, of whom appellant claims to have derived this stock.
676 Hall v. Kose Hill, etc., Eoad Co. [Sept. T.
Opinion of The Court.
Again, it is not controverted that there was written opposite
appellant's shares in the list of stock issued, the word "fraud-
ulent." This seems to indicate that the company so regarded
it. All the evidence considered, we are clearly of opinion
that it sustains the verdict.
The fifth instruction asked by appellant and refused by the
court, does not accurately state the law. It was essential
that the stock should have appeared by the records of the
company, or by a by-law, to have been regularly issued.
This was a suit by the person to whom the certificate was
issued, and he was bound to know whether the stock was
legally transferred, and his certificate informed him that such
stock could only be transferred by record in the books of the
company; and, whilst that certificate was prima facie evidence
that it had been regularly transferred, still that was overcome
by showing that it did not appear in the record of the pro-
ceedings of the company; and, to have restored his jprima
facie case, he should have proved that the order for the trans-
fer was, in fact, passed, but never reduced to record. This
he attempted, but the jury have found he failed to do.
As to the sixth of appellant's instructions, we think it was
properly refused. The directors of the company were the
trustees of the shareholders, intrusted with the management
of its affairs for their best interest. They had no right to
issue stock to any but subscribers who had paid for it, nor to
make transfers of stock unless by the consent of the former
owner, and upon his stock being canceled. To do otherwise
would be a fraud on the shareholders, and a mere doubt
whether such a transfer would or not be right, would not be
a justification for issuing double stock. They had no power
to act, unless the person to whom the transfer was made had
the legal right to the certificate. It does not appear how
appellant became possessed of the certificate on which this
new certificate was issued. It seems to have been assigned
in blank, no name being inserted.
1873.] Hadden et al. v. Knickerbocker. 677
Opinion of the Court.
The case seems to have been fairly presented to the jury,
and we think they were fully warranted in finding the ver-
dict they did, and the judgment of the court below must be
affirmed.
Judgment affirmed.
George M. Hadden et al.
V.
Oscar B. Knickerbocker et al.
1. Landlord's lien — on property other than crops lost by sale and re-
moval from demised premises. The lien of a landlord on the property of
his tenant, other than on crops, is superior to all junior liens, so long as
it remains on the premises occupied by the tenant, but can not prevail
over prior liens, or over the rights of bona fide purchasers, after the prop-
erty has been removed.
2. The rights of a purchaser of personal property from a tenant, after
its removal from the demised premises, for a valuable consideration, as,
in payment of a pre-existing debt, is not affected by the fact that he knew
there was rent due the landlord, and that he was about to distrain for the
same.
Appeal from the Court of Common Pleas of the City of
Aurora; the Hon. Richard G. Montony, Judge, presiding.
Mr. S. W. Brown, for the appellants.
Messrs. Wheaton & Smith, for the appellees.
Mr. Justice Scott delivered the opinion of the Court:
The facts of this case may be briefly stated:
Dudley Randall was a tenant of appellant Hadden, and was
in arrear for rent of premises occupied by him. The land-
lord issued his warrant, and placed it in the hands of Graves,
to be executed. After the warrant was issued, but before it
was levied, appellees claim to have purchased the property in
controversy of Randall, for a pre-existing indebtedness, and
678 Hadden et al. v. Knickerbocker. [Sept. T.
Opinion of the Court.
to have taken the same into their possession. It is conceded
the property was in possession of appellees when the levy was
made under the distress warrant. It was taken out of their
possession, and this suit was commenced in replevin to re-
cover it.
While there is some conflict in the evidence, the jury were
justified in finding that appellees were bona fide purchasers
of the property involved in this litigation. The jury also
found, by special verdict, that neither of the appellees, at the
time of the alleged transfer of the property, had notice that
Randall owed Hadden for rent, or that he was about to dis-
train for the same.
The record presents the direct question, whether the land-
lord had a lien upon the property after it had been removed
from the demised premises, which he. could enforce against
bona fide purchasers.
At common law, a distress for rent had to be made upon
the demised premises, and the right of the landlord to dis-
train terminated with the removal of the goods. If any rem-
edy remained, it was by action. Even the goods of a stranger,
if found upon the demised premises, might be seized. In
this respect, the common law has been enlarged and modified
by the provisions of our statute. By our laws the landlord
may distrain the goods of the tenant anywhere the same may
be found in the county where the demised premises are situ-
ated, but not the goods of the stranger, although found on the
premises. This provision of the statute, however, has exclu-
sive reference to the property of the tenant. Laws enlarging
the common law remedy by distress, have always been con-
strued strictly. Hence, this statute can not be so construed
as to authorize the landlord to distrain property in the hands
of a stranger, although he may have purchased it of the
tenant.
The lien of the landlord was superior to all junior liens, so
long as the property remained upon the premises occupied by
the tenant, but could not prevail against prior liens or over
1873.] Hadden et al. v. Knickerbocker. 679
Opinion of the Court.
the rights of bona fide purchasers after the property had been
removed. We do not understand our statute has changed the
common law in this respect, or given the landlord any greater
or different lien, except in the case of crops growing on the
premises. A lien is expressly given the landlord, by statute,
upon crops growing or grown upon the .demised premises,
in any year, for the rent that shall accrue during the current
year. (K.. S. 1845, p. 335, sec. 8.) But no specific lien is
created or given as to other property of the tenant.
In the case at bar, the property purchased had been re-
moved from the demised premises prior to the levy of the
distress warrant. Appellees were bona fide purchasers, for a
valuable consideration. Their right to hold the property is
not affected by the fact they may have known that rent was
due the lessor, and that he Avas about to distrain. The prop-
erty had been sold and removed by the consent of the tenant,
and the right to distrain did not exist, either at common law
or by any provisions of our statute. If the transaction had
been fraudulent, it seems the landlord might follow the prop-
erty, but not otherwise. Taylor on Land, and Tenant^ sec.
576.
In Baeh v. Meats, 2 Maule and Selw. 199, it was held, a
creditor may, with the assent of his debtor, take possession
of goods and remove them from the premises, for the purpose
of satisfying a bona fide debt, without incurring the penaltv
of the statute, 11 Geo. II, c. 19, sec. 3, against persons assist-
ing the tenant in removing his goods from the premises, and
this notwithstanding his knowledge that rent was due, and
an apprehension the landlord was about to distrain.
The same principle was recognized in Martin v. Block, 7
Paige, 641, and in Coles v. Marquan, 2 Hill, 447.
In Hastings v. Belknap, 1 Denio, 190, it was declared, where
a tenant assigns his goods to provide for the payment of bona
fide debts, and the goods are removed from the demised prem-
ises, the right to distrain is at an end, although the creditors,
680 The People ex rel. v. Wallace. [Sept. T.
Syllabus.
had notice that rent was about to become due. See also Tay-
lor on Land, and Ten. 577.
The case of O'Uara v. Jones, 46 111. 288, cited by counsel
for appellant with so much confidence, is clearly distinguish-
able from the case at bar. There, the goods were assigned
to pay the debts of the tenant, and had not been removed
from the demised premises prior to the distress, it was held,
the assignee was a trustee and not a bona fide purchaser.
Not being such, he took the property under the assignment,
and held it subject to all the burdens it was under in the
hands of the assignor. The assignee was himself, for the
time being, a tenant of the premises. The same doctrine is
announced in Martin v. Block, supra.
No material error is perceived in the instructions given for
appellees. Those asked on behalf of appellants do not state
the law correctly, hence they were properly refused.
For the reasons indicated, the judgment is affirmed.
Judgment affirmed*
The People ex rel. Lawrence S. Beardsley
V.
M. R. M. Wallace.
1. Appeal— /ww judgment for taxes. Under the act of March 28, 1873,
in relation to the assessment and collection of taxes in incorporated cities,
towns and villages, an appeal from a judgment of the county court against
real estate for taxes, lies only to the Supreme Court. It does not lie to
the circuit court.
2. Statute — whether general or special. A statute for the assessment
and collection of taxes, which applies to all incorporated cities and towns
in the State, is a general, and not a special law, within the meaning of
the constitution.
3. &KMK^-amendments to, need not be read on three several days. The
constitutional provision requiring bills to be read on three several days
before their passage, does not apply to amendments to the same.
1873.] The People ex rel. v. Wallace. 681
Opinion of the Court.
This was an application, in this court, for a mandamus, as
stated in the opinion.
Mr. Edward Koby, for the relator.
Per Curiam: This is an application, by relator, for a
mandamus against the judge of the county court of Cook
county, to compel him to allow an appeal to the circuit court
of that county, from a judgment rendered against relator's
lands for taxes due the city of Chicago. The 10th section
of the act of the 28th of March, 1873, in regard to the assess-
ment and collection of taxes in incorporated cities, towns
and villages, etc., (Sess. Laws 1873, p. 42,) only gives appeals
from the county court to this court. It declares that, in case
of judgments for such taxes, "appeals shall also be allowed to
the Supreme Court, (and not elsewhere,) as now provided by
law, in like cases, to the circuit court, from any judgment or
order of sale made by any county court respecting any
property returned delinquent, under the provisions of this
act." And the balance of the section refers to this court, and
not to the circuit court, in regulating the practice on such ap-
peals. Although the language is somewhat obscure, when
the entire section is considered, we have no doubt that it was
the design to give an appeal from such judgments alone to
this court, and to take it from the circuit court. This being
so, there can be no power to compel the county court to grant
an appeal to the circuit court, and the writ must be refused.
It is urged that the act referred to is a special law. We
are of opinion that the law is general, as it applies to the col-
lection of all municipal taxes of incorporated cities, towns and
villages in the State. Hence the objection, that the title of
the act does not sufficiently specify the objects of the law,
does not apply.
It is also objected, that the 10th section of the act was not
constitutionally adopted, because it was engrafted as an
amendment whilst the bill was being considered, and was not
682 The People ex rel. v. Wallace. [Sept, T.
Opinion of the Court.
read on three several days in the house adopting it as an
amendment. We are clearly of opinion that the requirement
does not apply to an amendment, and the objection can not
prevail.
The writ of mandamus is denied.
Mandamus denied.
INDEX
ABATEMENT.
What must be pleaded in abatement.
1. Non-joinder of parties plaintiff- If a married woman sues alone,
when she might be joined with her husband, the objection can onty be
pleaded in abatement. It can not be reached by an instruction. Euf-
talin v. Misner, 205.
2. Variance between writ and declaration. If there is a variance
between the summons and the declaration as to the defendant's name,
it must be taken advantage of by plea in abatement. Simons v. Wald-
ron et al. 281.
Waiver of plea.
3. By pleading to the merits. At common law, the filing of a plea
in bar before a plea in abatement was disposed of, was a waiver of the
plea in abatement. While it is true that a plea in abatement to a writ
of attachment is, for most purposes, governed by the common law rules
applicable to such pleas, yet, under our procedure, such a plea is not
waived by the filing of pleas in bar to the cause of action, and they
should all be submitted to the same jury. Hawkins v. Albright et al.
87.
Effect of the plea.
4. As to the burden of proof . The effect of a plea in abatement
traversing the grounds alleged, upon which a writ of attachment is
issued, is simply to throw the burden of proving the grounds of attach-
ment upon the plaintiff. Ibid. 87.
Of the verdict and judgment.
5. Where the verdict of the jury upon issues upon a plea in abate-
ment to a writ of attachment, and upon pleas in bar, is all one way, as,
for the defendant, this will be sufficient without any special finding as
to each, and judgment may be rendered the same way, generally, for
the party succeeding. If the jury finds the issue upon the plea in abate-
ment one way, and upon the other issues for the other party, the judg-
ment should be special, finding separately as to each. Ibid. 87.
684 INDEX.
ACCOUNT BOOKS.
Right of party to read in evidence. See EVIDENCE, 17, 32.
ACCOUNT RENDERED.
When binding.
1. Acceptance by acquiescence. Where an account of a banker is
rendered, showing a sale of a party's stocks, which the latter receives
without objection, in ignorance of the facts, his acquiescing in the same,
under such circumstances, will not preclude him from afterwards dis-
puting the account. Follansbee et al. v. Parker, 11.
ACTIONS.
Premature.
Cured by confession of judgment. See JUDGMENTS, 6.
For fraud in obtaining money under blank deed. See FRAUD, 1.
ADMINISTRATION OF ESTATES.
Powers of administrator.
1. As to real estate. An administrator has no power over the real
estate of decedent, except to obtain a decree of court and sell the same
thereunder to pay debts, when the personal estate is insufficient. Le-
Moyne et al. v. Quimby et al. 399.
2. Can not file a bill in equity to perfect title. When it becomes
necessary for an administrator to sell real estate to pay debts, he can
not file a bill in equity to perfect the title or relieve it of any burden,
but he must sell it as he finds it. Ibid. 399.
3. Creditor whose claim is allowed can not file bill to perfect title or
remove incumbrance. See CHANCERY, 13.
Limitation.
4. As to allowance of claims. A. claim against an estate not exhibited
within two years from the granting of administration, may still be pre-
sented and allowed as against any assets not inventoried or accounted
for, and this may be done at any time before the debt or claim is barred
by the general limitation law, but the allowance will be at the expense
of the claimant. Blanchard v. Williamson, 647.
Discharge of administrator.
5. Before estate is settled. The county court has no legal authority
to discharge an administrator before the estate is completely settled, and
if it does, the order will be a nullity, and will not prevent a creditor
from presenting a claim and having it allowed. Ibid. 647.
Jurisdiction in chancery.
6. As to claims against estates. See CHANCERY, 13.
INDEX. 685
ADMISSION.
By act of pakty.
1. Where a party, in rendering an account, charges himself with
rent of property for each of a series of months as of the first of each
month, this will he an admission, on his part, that he was to pay rent
monthly, in advance. Burt v. French, 254.
ADULTERY.
May be proved by circumstantial evidence. See EVIDENCE, 25,
26.
AGENCY.
Special agent.
1. Must not exceed his authority. "Where an agent is employed
merely to carry out and perform a contract already made by his princi-
pal, he is not authorized to change the contract, or to make a new one.
Gerrish v. Maker, 470.
2. Where a party sold land to another, to be paid for part in cash
and part on time, the cash payment to be made, and the deferred pay-
ments secured by trust deed, when the vendor should deliver a war-
ranty deed, and an abstract showing good title, to the purchaser, and the
agent of the vendor, by his direction, tendered such deed and abstract
to the purchaser, and demanded performance of the contract, and the
latter failed to perform, and afterwards claimed that the agent agreed to
give him further time : Held, that the agent had no authority to give
any extension of time, his authority being simply to perform the con-
tract already made, and not to make a new one. Ibid. 470.
Agent taking insufficient security.
3. Of his liability to his principal. If a party, engaged in the busi-
ness of loaning money on real estate security, solicits money to loan,
promising to take a first mortgage on real estate, in value double the
sum loaned, and obtains the money, which he loans, taking a mortgage
on real estate, which is subject to prior incumbrances, which are
unknown to the party advancing the money, and under which the prop-
erty mortgaged is sold, whereby the debt is lost, such agent will be
liable to the person advancing the money, in an action on the case.
Shipherd v. Field, 438.
4. The fact, in such a case, that the mortgaged property was of
double the value of all the incumbrances on it, will not relieve the
agent of liability to his principal, who had no knowledge of any prior
liens until the property was lost by sale under a prior deed of trust.
Ibid. 438.
5. Whether a delay in tendering securities to agent is sufficient to pre-
clude a recovery. Where an agent loans. his principal's money, taking
inadequate security therefor, in violation of his agreement, so that the
686 INDEX.
AGENCY. Agent taking insufficient security. Continued.
same is lost, and lie induces his principal to wait about a year, in the
hope of being able to collect his money, this will dispense with an
earlier offer to return the securities by the principal, to him, before
bringing suit to recover for the Joss sustained by him. Shipherd v.
Field, 438.
As between a banker and his customer.
6. Where broker makes two sales at different prices, whether customer
is entitled to price received on first sale. Where a customer of a bank
in Chicago had railroad stocks which were held by the bank, in its
name, in other banks, in the city of New York, and, during the great
Chicago fire, directed his banker to telegraph immediately and have
them sold, and directed the dispatch to be sent from a station outside of
the city, under the belief that none could be sent from the city, and,
after this, the bank sent a dispatch from the city, under which more
stocks were sold than those it held for such customer, and, on the next
day, sent another dispatch from the station outside the city, which did
not get through for some time, and under which other railroad stocks
were sold at a much lower price than the first, it was held, that the cus-
tomer was entitled to recover of his banker, for his stocks sold, the
price received at the first sale, as he was the first to give a direction to
sell. Follansbee et al. v. Parker, 11.
Compensation of agent.
7. Generally. In order to entitle an agent to recover compensation
from his principal, for services rendered in respect to the subject matter
of the agency, he must act strictly according to the authority conferred
upon him. Hoyt v. Shipherd et al. 309.
8. Where the owner of land authorized real estate agents to sell
lands purchased by him, and informed them that he had no deed for
the same, but held it under a contract, and the agents made a contract
for the sale of the land, which the purchaser refused to complete, be-
cause the vendor had only a contract of purchase, there being no other
defect in the title, it was held, that the agents were not entitled to recover
the agreed commissions on the sale, as it proved abortive without any
fault on the part of their principal. Ibid. 309.
9. Agents' right to commissions ;f or selling land. Where real estate
agents were authorized to sell real estate for $48,000, one-third cash in
hand, and the balance to remain in mortgage one and two years, with
interest at eight per cent, for which the agents were to receive a com-
mission of two and a half per cent, and the agents sold the property
for the required price, one-third to be paid in twenty days, without
interest,, the balance to be secured by a deed of trust and note, and the
purchaser afterwards refused to complete the purchase, for certain
objections to the title: Held, that the sale not being such as the agents
were authorized to make, in the absence of proof of a ratification, they
INDEX. 687
AGENCY. Compensation of agent. Continued.
were not entitled to recover the commissions agreed upon. Hoyt v.
Shipherd et al. 309.
Whether an agent has an interest.
10. To give agent a share of profits, gives no interest in land to he
sold. A contract that, if land is sold at a specified price, the owner
will allow to his agent, in the purchase and sale of the lands, a certain
portion of the net profits, is only a personal contract, and gives the
agent no interest in the land. LeMoyne et al. v. Quimby et al. 399.
Ratification by principal.
11. Of sale made without authority. Although an agent contracts
for the sale of land without sufficient authority from the owner, yet, if
the latter, through another agent duly authorized, ratifies the same, and
makes a tender of a conveyance in pursuance of such contract, it will
be binding on him. Hoyt v. Tuxbury etal. 331.
ALTERATION.
Of deed, by filling blanks. See CONVEYANCES, 3 ; CRIMINAL
LAW, 1.
AMENDMENTS.
In chancery — discretionary.
1. A motion to amend a bill in chancery is addressed to the discre-
tion of the court. Barm v. Bragg et al. 283.
2. The granting or refusing leave to amend a bill in chancery after
the hearing and before a final decision, being purety a matter of dis-
cretion, can not be assigned for error. Hoyt v. Tuxbury et al. 331.
Complaint in forcible detainer.
3. It is not error to permit an amendment of a complaint in forcible
detainer, on appeal, after the submission of the cause to the court,
where the amendment is not calculated to surprise the defendant.
Snowell et al. v. Moss, 313.
Return on process.
4. If a sheriff's return of service is defective in not stating the pre-
cise mode of service of a summons, it may be corrected even after error
brought. Terry et al. v. Trustees of Eureka College, 236.
Amendments to bills for laws.
5. Weed not be read on three several days. See STATUTES, 2.
APPEALS AND WRITS OF ERROR.
When they will lie.
1. Where the court, on motion of the defendant, dissolved the in-
junction previously granted on a bill to enjoin the collection of a judg-
ment, there being no answer filed, and the complainant then moved to
dismiss his bill, if the court should hold there was no equity in it,
688 INDEX.
APPEALS AND WRITS OF ERROR.
When they will lie. Continued.
which the court did, and the complainant appealed : Held, that the
complainant was not precluded from appealing by his motion, but that
he pursued the proper practice. Weaver v. Poyer et al. 567.
2. Lies only from final order or judgment. This court has repeatedly-
decided that an appeal or writ of error will not lie from a decision of
the circuit court, unless it is the final judgment in the cause. Racine
and Mississippi Railroad Co. v. Farmers'1 Loan and Trust Co. 249.
3. An order in a chancery cause overruling a motion to set aside a
sale made under a former decree in the cause, is interlocutory only,
from which an appeal or writ of error will not lie. Ibid. 249.
From judgment for taxes.
4. Appeal lies only to Supreme Court. Under the act of March 28,
1873, in relation to the assessment and collection of taxes in incorpora-
ted cities, towns and villages, an appeal from a judgment of the county
court against real estate for taxes, lies only to the Supreme Court. It
does not lie to the circuit court. The People ex rel. v. Wallace, 680.
Appeals from justices.
5. Wo written pleadings required. No formal pleadings are re-
quired before a justice of the peace in any case, and consequently none
can be required in the circuit court on appeal. Where there is a trial
of an appeal in a prosecution for assault and battery, the record need
not show a formal plea, as an issue will be presumed to have been
joined. Kennies et al. v. The People, 100.
6. Jurisdiction determined from the evidence. See JUSTICES OF
THE PEACE, 1.
APPEAL BONDS.
On conviction for assault and battery.
1. An appeal bond, given on appeal from a conviction before a jus-
tice of the peace for an assault and battery, conditioned to pay what-
ever judgment may be rendered by the court upon dismissal or trial of
the appeal, is a substantial compliance with the statute, and is binding.
Hennies et al. v. The People, 100.
Court may prescribe conditions.
2. Under the statute of 1865, relating to appeals, the court, in allow-
ing an appeal from an order dissolving an injunction restraining a
party from the use of real estate, may properly require the appeal bond
to have a condition for the payment of the rental value of the land, as
well as costs and expenses of the suit, in case of an affirmance.
McWilliams v. Morgan, 62.
INDEX. 689
APPEARANCE.
Without objection, gives justice's court jurisdiction. See JUS-
TICES OF THE PEACE, 3, 4.
ARREST OP JUDGMENT.
Defects in declaration See PLEADING, 5.
ASSAULT AND BATTERY.
Judgment on appeal bond.
1. Statute authorizing judgment against surety in appeal bond on the
conviction of the principal, is constitutional. The statute which author-
izes the circuit court, on the trial of an appeal in a prosecution for
assault and battery, and the conviction of the principal, to render judg-
ment for the fine against both the principal and surety in the appeal
bond, is not unconstitutional. Hennies et al. v. The People, 100.
ASSIGNMENT.
Op stock in railway company.
How effected. See STOCK OF RAILWAY COMPANY, 1, 2, 3.
ASSUMPSIT.
When it lies.
When vendor of personally may sue in, for price. See CON-
TRACTS, 8.
ATTACHMENT.
Probable cause to justify.
1. In suit for malicious prosecution. See MALICIOUS PROSE-
CUTION, 2,. 3, 6.
Of the pleas.
2. Defendant may plead to writ and to the merits at the same time.
As the defenses which may exist to the right to attach property have no
necessary connection with defenses to the cause of action, the right to
plead in abatement is not upon the condition of abandoning all other
defenses, but, on the contrary, all other legitimate defenses to the merits
may be interposed at the same time. Hawkins v. Albright et al. 87.
Verdict and judgment.
3. On plea in abatement and pleas in bar. See ABATEMENT, 5.
ATTORNEY AT LAW.
Whether the relation exists.
1. Where an attorney at law prepares a bill in chancery in a party's
name as complainant, and the attorney signs the party's name to it, and
then the name of his firm to the bill, this affords unmistakable evidence
44— 70th III.
690 INDEX.
ATTORNEY AT LAW. Whether the relation exists. Continued.
of the relation of client and attorney, and a mere denial of the relation
by the latter is but ignoring the legal effect of the acts done. Burnham
v. Roberts, 19.
Privileged communications.
2. A bill in chancery, sworn to by a party, but never filed, and which
is prepared by his attorney on the client's statement of the facts, is to
be regarded as a privileged communication in the hands of the attor-
ney, and is not admissible in evidence against his client. Burnham v.
Roberts, 19.
Reasonableness of pee.
3. The court, on the hearing of a bill for divorce brought by the hus-
band against his wife, after verdict in favor of the wife, required the
complainant within thirty days to pay the defendant's solicitors $6000
in addition to $1000 already paid: Held, that the fee was excessive, and
the same was reduced to $2000 in all. Blake v. Blake, 618.
When fee of may be taxed.
4. In partition. Where a proceeding for the partition of land is an
amicable one, a solicitor's fee may be taxed as costs, to be paid pro rata
by all the parties, but not if there is a contest. Stenger v. Edwards, 631.
BANKS AND BANKERS.
Liability to customer for stocks sold.
Which price governs in case of two sales. See AGENCY, 6.
BILLS OF EXCEPTIONS.
Their requisites.
Must contain instructions given, when a refusal to give others is as-
signed for error. See PRACTICE IN THE SUPREME COURT, 1.
BILL OF LADING.
When binding as a contract. See CARRIERS, 2.
BLANK IN DEED.
Filling in grantee's name.
1. A forgery. See CRIMINAL LAW, 1.
2. And renders deed void. See CONVEYANCES, 3.
BOARD OF SUPERVISORS.
Duty and powers.
1. In respect to court house find jail. It is made the imperative duty
of the board of supervisors to build, as often as may be necessary, court
houses and jails, and cause the same to be repaired. The time when,
the style, capacity and cost of such erections, are wholly committed to
them, and in the absence of fraud, corruption or unfair dealing, their
INDEX. 691
BOARD OF SUPERVISORS. Duty and powers. Continued.
discretion can not be controlled by any judicial tribunal. The board
are the exclusive judges of the necessity of erecting a new jail, and are
amenable only to the people electing them. Andrews v. Board of Su-
pervisors of Knox County, 65.
BOOKS OF ACCOUNT.
As evidence. See EVIDENCE, 17, 32.
BROKER.
Liability to customer.
In case of two sales of stocks, for which price liable. See AGENCY, 6.
BURDEN OF PROOF. See EVIDENCE, 18, 19; MALICIOUS PRO-
SECUTION, 7.
BURIAL OF THE DEAD.
Power of the legislature to regulate. See CEMETERY, 2.
CARRIERS.
Liability for lost goods.
1. Liability to first carrier for loss of goods. If a carrier undertakes
to transport goods to a given point, and, at the end of its line, delivers
the same to a packet company, which agrees to deliver the same at a cer-
tain point to a railway company, which it does, and the goods are lost
by the fault of the latter compaDy, and the first carrier is compelled to
pay for the goods, it can not recover over of the packet company, which
has performed its contract, but must look to the railway company to
whom they were last delivered. Chicago and Northwestern Railroad
Co. v. Northern Line Packet Co. 217.
2. When Mil of lading is binding as a contract. Where a carrier
delivers goods to a forwarder, who is its agent and the agent of the com-
pany to whom the same are delivered, and he gives a bill of lading lim-
iting the duty of the latter to deliver the goods to another company,
this will make the bill of lading a contract, binding upon the first and
second carriers, and the second carrier will not be responsible for the
delivery of the goods to the consignee by the last carrier. Ibid. 217.
3. Liability on shipment over intermediate lines. If goods are lost
by one carrier, in a line of carriers composed of several, the first to
whom the goods are delivered, and who agreed to transport them to
their destination, will be liable to the owner, and the latter will not be
required to sue the carrier who lost the same, but this rule applies only
in favor of the owner of the goods. The first carrier, if he sues to re-
cover what he has paid, must sue the carrier in default. Ibid. 217
692 INDEX.
CASE.
Agent when liable in.
Loaning principal's money on incumbered property — security. See
AGENCY, 8.
CEMETERY.
Whether a nuisance.
1. A cemetery is not a nuisance per se, and the subject of legislative
prohibition. The legislature has the constitutional right to pass laws
to regulate the interment of the dead, so as to prevent injury to the health
of the community, and this in respect to a private corporation acting
under a charter, as well as with individuals. Town of Lake View v.
Rose Hill Cemetery Go. 191.
POWER OP PROHIBITION.
2. Where a cemetery company is chartered, with power to acquire
lands for burial purposes, not exceeding five hundred acres, and it ac-
quires the lands, and expends its money in preparing and adorning the
same, an act of the legislature prohibiting the company from using any
of its lands outside its then inclosure, for the burial of the dead, without
regard to the manner of the exercise of its franchise, is unconstitutional
and void, as impairing the obligation of the contract contained in the
charter. Ibid. 191.
CERTIFICATE OF PURCHASE.
Passes no title. See JUDICIAL SALES, 1, 2.
CERTIFICATE OF STOCK.
In corporation prima facie evidence. See STOCK OF RAILWAY
COMPANY, 4.
CHANCERY.
Jurisdiction — remedy at law.
1. Remedy at law barred by limitation. No principle of law is bet-
ter settled, than that where the law affords a remedy, and the party
neglects to avail of it, equity will not assist him after his remedy at law
has been barred by the Statute of Limitations. Blanchard v. William-
son, 647.
2. To restrain threatened trespasses, conveyances, etc. A party having
a complete legal title to real estate, free from all incumbrances, and in
the possession of the same, can not maintain a bill in chancery to
restrain threatened trespasses, conveyances and leases of a mere stranger,
unless special circumstances are shown, so that the court can see that
the threatened conveyances or leases will operate as a cloud upon the
title, or that the trespasses will tend to the destruction of the inherit-
ance, or work irreparable injury. Barm v. Bragg et al. 283.
INDEX. 693
CHANCERY. Jurisdiction — remedy at law. Continued.
3. Of claim against an estate. A court of equity will not assume
jurisdiction of a claim agair^t an estate, until the claimant shall have
exhibited it and had it allowed in the county court, but, if any rea-
sons that may be deemed sufficient can be assigned why that court can
not afford the requisite relief, equity will assist, but not otherwise.
Blanchard v. Williamson, 647.
Remedy on the ground of accident.
4. It is not every case of accident which will justify the interposi-
tion of a court of equity. The jurisdiction will be maintained only
where a court of law can not grant equitable relief, and where the party
has a conscientious title to relief. Patton et al. v. Campbell, 72.
LOSS OP SEALED INSTRUMENT.
5. In the case of lost instruments under seal, equity will take juris-
diction, for the reason that, until recently, no remedy could be had on
such instruments in a court of law, because no profert could be made.
Ibid. 72.
Forfeiture of contract.
6. Whether relief granted in equity. See FORFEITURE, 1, 2, 3.
Leave to answer.
7. After default. It is not error to refuse to allow a defendant to
answer a bill in chancery after default, who, in his application, fails to
show he has any defense. Terry et al. v. Trustees of Eureka College, 236.
Sworn answer as evidence.
8. Generally. Where an answer in chancery is required to be under
oath, and it is responsive to the bill, it must be taken as true, unless
overcome by evidence amounting to the testimony of two witnesses.
Walton v. Walton et al. 142.
9. When oath is waived. Where an answer under oath to a bill in
chancery is waived, if it is sworn to it will not thereby derive any effi-
cacy from the oath, but it may be used as an affidavit in support of a
motion to dissolve an injunction. Andrews v. Board of Supervisors of
Knox County, 65.
Answer not responsive.
10. Must be proven. In a proceeding for the partition of land, an
allegation in an answer that the petitioner or complainant had promised
to give a certain interest in the land to a brother under whom the
defendant claimed, and that such brother made valuable improvements
on the land, upon the faith of such gift, is not responsive to the petition,
and must be sustained by affirmative proof. Ibid. 142.
Replication.
11. Want of replication — effect thereof. Where an answer for part
of the defendants, in a suit to enforce a mechanic's lien, is filed without
notice to the petitioner, the court will not be authorized to dismiss the
694 INDEX.
CHANCERY. Replication. Continued.
suit for want of prosecution, when reached on the docket, for want of
a replication, and it is error to do so. Linnemeyer v. Miller et al. 244.
12. If the defendants are desirous of a speedy hearing, they should
notify the complainant or petitioner of the filing of their answer, and
if replication is not then filed in four days, move the court to set the
cause for hearing on bill and answer. Ibid. 244.
Creditor's bill.
13. Who may file to reach lands of estate. A creditor, whose claim
has been duly allowed by the county court against an estate, has no
such interest in the real estate of the deceased as will authorize him to
file a bill in equity to perfect the title or remove incumbrances. Le-
Moyne et al. v. Quimby et al. 399.
Specific performance.
14. When bill prematurely brought. When the vendee was to pay
for the land within two years from the date of the contract, and he died
soon after, and it appeared that there was not sufficient of his personal
estate to make the payment provided for in the contract, a bill filed by
the vendor against the heirs and administrator for a specific perform-
ance or rescission of the contract, before the expiration of the time fixed
for payment by the contract, is premature ; such bill can only be filed
when the heirs are in default, and there can be no default until the time
for payment has expired. Greenbaum v. Austrian, 591.
15. Performance or readiness to perform. To entitle a party to a
specific performance, he must show that he has been in no default, and
that he has taken all proper steps towards the performance on his part.
Walker et al. v. Douglas et al. 445 ; Kimball et al. v. Tooke, 553.
16. A party seeking the specific performance of a contract for the
sale of land, most show that he has always been ready, willing and
eager to perform on his part. Hoyt v. Tuxbury et al. 331.
17. A party can not have a specific performance of a contract, in
equity, unless he can show he has performed it in all its parts, or can
show a just excuse for non-performance; and the burden of proof is on
the complainant to show his right to the relief he seeks, by a clear pre-
ponderance of evidence. Brink v. Steadman et al. 241.
18. Laches. A court of equity will not lend its aid to enforce the
specific performance of a contract, if the party seeking the aid of the
court has been guilty of great delay in performing it, or in filing his
bill, or in prosecuting his suit after the bill is filed. Alexander v. Hoff-
man et al. 114.
19. Mere lapse of time, when time is not expressly made material
by the agreement of the parties, is not necessarily an objection to de-
creeing specific performance; but where there is great delay, unex-
plained, it is such evidence of laches as will preclude the granting of
relief. Walker et al. v. Douglas et al. 445.
INDEX. 695
CHANCERY. Specific performance. Continued.
20. By the terms of a contract to sell and convey land, the last pay-
ment was due in January, 1858, and no offer was made to pay it until in
January, 1873, and the only excuses offered for the delay were, the great
intimacy and friendship between the parties, the civil war, the pur-
chaser being a citizen of Memphis, Tennessee, the death of the pur-
chaser in 1863, and the minority of his heirs : Held, that no reasonable
excuse is shown why the payments were not made between the time
they were due and the breaking out of the civil war, in 1861, or after
the 6th of June, 1862, when communication was opened with the North,
and that to allow complainants, under the circumstances, to have a
decree for specific performance, would be contrary to the well estab-
lished principles of equity. Walker et a.1. v. Douglas et al. 445.
21. Where a bill for the specific performance of a contract of sale
was filed twelve years after the last payment became due, and ten years
after the complainant acquired the vendee's interest, and the proof failed
to show clearly that the deferred payments had ever been made : Held,
that the bill was properly dismissed. Alexander v. Hoffman et al. 114.
22. Where a party, seeking a specific performance of a contract, de-
lays filing his bill for eight years, and the delay is unexplained by any
equitable circumstances, he can have no relief. Brink v. Steadman
et al. 241.
23. Objections to title as an excuse for delay in performing contract to
purchase. Where there was a judgment of record against a former
owner of a tract of land sold, but which was in fact satisfied, though the
satisfaction not entered of record, and a third party was in possession of a
part of the land as a mere squatter, and the purchaser, when tendered a
deed, refused to accept the same and comply on his part for the reasons
stated, it was held, on bill by the purchaser, afterwards filed, for a spe-
cific performance, that, if the objections to the title were well founded
and urged in good faith, the purchaser was excusable for not perform-
ing at the time of the tender, but if they were urged in bad faith, he
could not be excused for the delay occasioned in the performance on his
part. Hoyt v. Tuxbury et al, 331.
24. Doubtful title. A purchaser of real estate can not be compelled
to take a doubtful title, which may expose him to the expense and haz-
ard of litigation. Ibid. 331.
25. Delay in accepting the title offered. Where the purchaser of land
has an option to avoid the contract for objections to the title, any delay
in deciding whether he will accept the same, will defeat his right to a
specific performance. Ibid. 331.
26. Where the purchase of land is made upon condition the title is
found good, the purchaser is only entitled to a reasonable time in which
to determine whether he will take the title the vendor has, or reject it.
He can not keep the contract open indefinitely, so as to avail of a rise
696 INDEX.
CHANCERY. Specific performance. Continued.
in the value of the property, or relieve himself in case of a deprecia-
tion. Hoyt v. Tuxbury et al. 331.
27. When unconscionable. Specific performance will not be enforced
if there is anything that makes it unconscionable, from change of cir-
cumstances, lapse of time, or otherwise, to enforce it. Kimball et al v.
Tooke, 553.
28. Discretionary. A party can not, as a matter of right, call upon
a court of equity to specifically enforce the performance of a contract,
but the exercise of the power rests in the sound discretion of the court,
in view of the terms of the contract and the surrounding circumstances.
Hoyt v. Tuxbury et al. 331; Alexander v. Hoffman et al. 114; Kimball
et al. v. Tooke, 553.
29. Rescission or specific performance, when minors are interested.
Where a contract for purchase and sale of land was entered into between
two parties, and, before it was performed, the vendee died, leaving minor
heirs, and the vendor filed a bill against the administrator and the guard-
ian of the heirs, asking for a specific performance or a rescission of the
contract, as the court might direct, the court should act for the best
interest of the heirs ; and if a rescission of the contract would best pro-
mote their interest, a decree to that effect should be entered. If, on the
other hand, it would best promote the interest of the heirs, and the
guardian has sufficient funds, the court should order him to pay the
balance of the purchase money, and take a deed to the heirs, or the court
should order that the interest of the heirs in the contract be offered for
sale, and if it brought more than the sum the heirs would have to pay,
that it be sold, and if not, then that the contract be rescinded. Green-
baum v. Austrian, 591.
30. But, in such case, where the personal estate of the deceased is
not sufficient to pay the purchase money, and the vendor insists on a
specific performance, the court will order the unconditional sale of the
interest of the heirs in the contract. Ibid. 591.
31. Infancy, no excuse for not performing ancestor's contract. See
INFANTS, 4.
Effect of laches, generally.
32. A court of equity will refuse its aid to stale demands, where the
party has slept upon his rights, or acquiesced for a great length of time.
Nothing can call forth the aid of the court but activity, good faith, and
reasonable diligence. Where these are wanting, the court is passive,
and does nothing. Laches and neglect are always discountenanced.
Carpenter v. Carpenter, 457.
33. In 1856 the complainant executed to one of the defendants a
mortgage, to secure the payment of certain promissory notes, the last of
which became due in four years. The mortgage contained a power of
sale. Default was made in the payment of the last note, and the niort-
INDEX. 697
CHANCERY. Effect of laches, generally. Continued.
gagee gave notice and sold, in compliance with the mortgage, in 1862.
A short time after the deed was executed to the purchaser, he reconveyed
to the mortgagee, who, from that time forth, claimed to own the prop-
erty, and sold portions of it at different times to other parties, who have
held, occupied and improved it — of all which complainant had notice.
In 1869 the complainant filed his bill, asking to be allowed to redeem
from the mortgage, on the ground that the sale by the mortgagee to the
purchaser, and the reconveyance by the purchaser to the mortgagee,
were made in pursuance of an agreement entered into between the mort-
gagee and purchaser before the sale ; that such conveyances were to be
so made with the view of fraudulently depriving the complainant of
his equity of redemption, and that the same were for that reason void:
Held, that without reference to any other questions involved in the case,
the complainant had been guilty of such laches, in asserting whatever
rights he moy have had in the property, as must, of itself, preclude his
right to recover. Munn et al. v. Surges et al. 604.
Preserving the evidence.
34. Where the court, in its decree, refers to the evidence upon which
the facts are found, and it fails to support the finding, the decree will
be reversed. Kennedy v. Merriam et al. 228.
35. Thus, on a creditor's bill to set aside certain conveyances as in
fraud of creditors, where the decree recited that the cause was heard
upon the bill, answer, replication and exhibits, " and also the proofs
taken in the cause, to-wit: " naming the record in a partition suit, cer-
tain deeds, which were described, a recorded town plat, and then pro-
ceeded, " and the court being fully advised, etc., and finding, from the
proofs in the case, that the said deeds of conveyance from," etc., to, etc.,
were made to hinder and delay, etc. : Held, that, as the decree professed
to state the proofs, and there being no proof shown of the fraud, or that
there were any creditors at the time of the execution of the deeds, the
decree could not be sustained. Ibid. 228.
36. In chancery causes, it is not to be presumed that any evidence
was given in the cause, in the court below, except what appears in the
record ; and as to infants, strict proof is required, and the record must
furnish evidence to sustain a decree against them, whether the guardian
answers or not. Ibid. 228.
CHANGE OF VENUE. See YENUE, 1, 2.
CHATTEL MORTGAGES. See MORTGAGES, 25 to 28.
CHICAGO, CITY OF.
Board of police commissioners.
1. The commissioners of the board of police of the city of Chicago
are members of a board organized under an amendment of the charter
698 INDEX.
CHICAGO, CITY OF. Board of police commissioners. Continued.
of the city of Chicago, and are included in the first section of the act, in
force July 1, 1872, commonly known as the Mayor's bill. People ex rel.
v. Wright, 388.
2. The hoard is the creature of legislation, and the legislature can,
in their discretion, provide how the commissioners shall be selected or
appointed, and may change the mode from time to time, as the welfare
of the city seems to demand. Ibid. 388.
3. The individual commissioner of the board of police, as such, pos-
sesses no official authority, and is not a city officer. Ibid. 388.
CONDITION PRECEDENT.
Allegation of performance in pleading. See PLEADING, 2.
CONFLICT OF LAWS.
When the lex loci governs. See LEX LOCI, 1
CONSIDERATION.
Of its sufficiency.
1. One promise is a sufficient consideration to support another, and
where a person does an act beneficial to another, or agrees to do so,
that forms a sufficient consideration to support an agreement to pay for
the same. Cook v. Murphy et al. 96.
2. Of supplemental contract to pay additional price on building con-
tract. Where the parties engaging to furnish materials and perform
certain work in the erection of a building, claimed that they had made
a mistake of $500 in the price of the same, and refused to go on and
complete the contract, and thereupon the other party agreed to pay $500
in addition to the original contract price, under which the contractors
completed the work : Held, that the new and supplemental agreement
to pay $500 more was not without consideration, but was valid and
binding. Ibid. 96.
Note without consideration.
3. Not enforcible. See GIFT, 2.
CONSTITUTIONAL LAW.
Police power of the state.
1. Defined. The police power of the State is co-extensive with self-
protection, and is not inaptly termed "the law of overruling necessity."
It is that inherent and plenary power in the State which enables it to
prohibit all things hurtful to the comfort, safety and welfare of society.
It may be exercised to control the use of property of corporations as
well as of private individuals. Town of Lake View v. Rose Hill Ceme-
tery Co. 191.
INDEX. ■* 699
CONSTITUTIONAL LAW. Police power of the state. Continued.
2. How far a political and how far a judicial question. As a gen-
eral proposition, it is the province of the law-making power to determine
when the exigency exists calling into exercise the police power of the
State, but what are the subjects of its exercise, is clearly a judicial ques-
tion. Town of Lake View v. Pose Hill Cemetery Co. 191.
3. Police power subject to constitutional limitations. The exercise
of this power is subject to constitutional limitations. It is essential
that police regulations must have reference to the comfort, safety and
welfare of society, and, when applied to corporations, they must not be
in conflict with any of the provisions of their charters. Under the pre-
tense of police regulations, a corporation can not be divested of any of
the essential rights and privileges conferred by its charter. Ibid. 191.
4. Legislation as to franchises which are publici juris. So far as
franchises of a corporation are publici juris, the State may properly
legislate touching them, and such legislation is not prohibited by that
clause of the constitution of the United States which forbids the passage
of laws impairing the obligation of contracts. Ibid. 191.
5. Who subject thereto. All persons possess their rights, whether to
things tangible or intangible, subject to the general police power of the
State ; and corporate bodies are not, nor can they be, a privileged class
in this regard. Northwestern Fertilizing Co. v. HydfrPark, 634.
6. The exemption of an individual or a class of individuals from
punishment for crimes and misdemeanors, by an act of the General
Assembly, would not prevent that body from the repeal of such law,
' and bringing them under the general law punishing crimes and misde-
meanors ; and the same rule applies to a body corporate. Ibid. 634.
7. The charter of the village of Hyde Park authorized the town
authorities to determine what were nuisances, and to abate the same,
with a proviso that nothing therein contained should authorize the
town or its officers to prohibit, interfere with, hinder or obstruct parties
engaged in carrying offal from the city of Chicago to a designated point
in the town, and from manufacturing the same into an agricultural fer-
tilizer, etc. In 1869 this charter was revised, and the same powers as
in the original conferred, with the proviso that such powers should not
be exercised against the Northwestern Fertilizing Company until the
lapse of two years after the passage of the act: Held, that such inhibi-
tion from exercising the police power against such company did not
inure to such company as a grant; that it was only a police regulation
operating upon and controlling the village government, and that the
company could claim no privilege under it after the expiration of the
two years. Ibid. 634.
8. The- enactment by implication fully authorized the village to
enact appropriate ordinances to abate nuisances, and to enforce the
same after the expiration of the two years. Ibid. 634.
700 INDEX.
CONSTITUTIONAL LAW. Continued.
Patent eights.
9. Constitutionality of the State law on that subject. See PATENT
RIGHTS, 1 to 5.
Judgment for pine against surety.
10. Of the statute. See ASSAULT AND BATTERY, 1.
Local laws.
11. Those applicable to courts abrogated. See COURTS, 5.
12. In respect to courts in Cook county. See same title, 5.
Mayor's bill, of Chicago.
13. Is constitutional. See STATUTES, 1.
Of the passage of laws. Same title, 1, 2, 3.
CONTEMPT.
What constitutes a contempt.
1. Disobeying injunction. Where the board of supervisors of a
county are enjoined from building a county jail at the county seat, the
receiving of bids for the work, conditioned upon the dissolution of the
injunction, and the awarding of the contract to build the same, to take
effect only upon the dissolution of the injunction, is not such a disobe-
dience of the injunction as to place the board of supervisors in con-
tempt. Andrews v. Board of Supervisors of Knox County, 65.
Must be judicially found.
2. To deprive a party of a standing in court for any purpose, for
contempt in disobeying an order or injunction of the court, if such is
the law, there must first be an adjudication finding him guilty of such
contempt. Ibid. 65.
CONTINUANCE.
On the absence of witnesses.
1. Sufficiency of affidavit. There is no error in overruling a motion
for a continuance based on the ground of the absence of witnesses, in a
capital case, where the testimony expected from one of them would be
of no benefit to the accused, and the affidavit fails to show that the
attendance of the other witness, a non-resident, can ever be procured.
Perteet v. The People, 171.
2. Of the diligence. An affidavit for a continuance, which states
that the party making it understood from the attorney of the opposite
party that he would, on the trial, make certain proof, and, for that rea-
son, affiant did not take depositions and make such proof himself,
expecting that it would have to be made by the opposite party, does not
show sufficient diligence to entitle the party making it to a continuance.
Walker et al. v. Douglas et al. 445.
On dissolution of injunction.
3. To assess damages. See INJUNCTIONS, 6.
INDEX. 701
CONTINUANCE. Continued.
Admission of affidavit.
4. Effect thereof . See EVIDENCE, 30, 31.
CONTRACTS.
Construction of contracts.
1. General rules. Contracts should be so construed as to give effect
to the intention of the parties, and where that intention is sufficiently
apparent, effect should be given to it, even though violence be thereby
done to its words ; for greater regard is to be had to the clear intent of
the parties, than to any particular words they may have used in the ex-
pression of their intent. Walker et al. v. Douglas et al. 445.
2. In the construction of a contract, where the language is ambigu-
ous, courts uniformly endeavor to ascertain the intention of the parties,
and to give effect to that intention ; but where the language is unam-
biguous, although the parties may have failed to express their real
intention, there is no room for construction, and the legal effect of the
agreement must be enforced. Walker et al. v. Tucker et al. 527.
3. The provisions of a contract must be construed together, so that
all the words shall have some effect given them, if possible. Ibid. 527.
4. Recitals in the preamble, effect of. Where the words in the opera-
tive part of an instrument are of doubtful meaning, the recitals, prece-
ding the operative part, may be used as a test to discover the intention
of the parties, and fix the true meaning of the words ; but when the
words in the operative part are clear and unambiguous, they can not be
controlled by the recitals. Ibid. 527.
5. Where the recitals do not express all that is included in the oper-
ative part of an instrument, they can not be held to be a full and clear
expression of the intention of the parties. Ibid. 527.
Contract construed.
6. Whether executed or executory. A contract, under seal, recited that
the party of the first part "has this day sold" to the party of the sec-
ond part certain property, etc., which was to be paid for in installments,
extending through a period of eighteen months. It also contained a
clause by which the party of the first part bound himself, in a penal
sum equal to double the amount of the purchase money, to convey the
property upon payment of all of the installments ; and a further clause,
that the party of the second part might, at the expiration of two years?
elect whether he would affirm the contract, and if he should determine
to rescind it, the party of the first part should take back the property,
and refund whatever had been paid, with interest from the time of pay-
ment : Held, that it was not the intention or understanding of the par-
ties that the contract was in anywise executed, but that it was purely
702 INDEX.
CONTRACTS. Contract construed. Continued.
executory, and that no present estate, either legal or equitable, was in-
tended to be thereby vested in the party of the second part. Walker
et al. v. Douglas et al. 445.
Sale op personal property.
7. Time, of payment. In a sale of property, where nothing is said
as to when payment shall be made, the law implies that it shall be
made on delivery. Bwyer v. Duquid et al. 307.
8. Action to recover price of goods on partial delivery. Where per-
sonal property is sold and delivered, there being no time fixed for pay-
ment, and the purchaser refuses to pay for the same on demand, he will
be in default, and the vendor, having complied with his part of the con-
tract, may treat the contract as abandoned, and recover in assumpsit,
under the common counts, for the price of the property delivered,
according to the contract. Ibid. 307.
9. Vendor must perform before he can sue vendee. Where a vendor
sues for damages for the breach of a contract of sale, it must appear
that he has been ready and willing, and has offered to perform on his
part, or that the vendee has done some act which dispenses with a per-
formance. Burnham v. Roberts, 19.
10. When offer to perform not necessary. A defendant may dispense
with an offer to perform by the plaintiff, by refusing to go on with the •
contract, or he may, in other modes, dispense with such an offer.
Ibid. 19.
11. Non-performance not excused by bad weather. Inclemency of
weather furnishes no excuse for the non-performance of a contract to
sell and deliver hogs on a specified day, unless it is expressly so pro-
vided in the contract. Kitzinger v. Sanborn et al. 146.
12. Purchaser must be ready and willing to perform. In a suit by a
purchaser of hogs, to be delivered to him at a certain time and place,
to recover damages for a non-delivery, it is necessary to prove that he
was ready and willing to receive and pay for the same at such time and
place, but slight evidence of such fact is sufficient. Ibid. 146.
13. Performance not excused by direction of an agent having no
authority. A party will not be excused for not delivering brick to
another under his contract, from the fact that such other party's fore-
man directed him to stop, without authority from his employer to do
so. Moulding et al. v. Prussing et al. 151.
14. Waiver of condition by subsequent part performance. If a con-
tract to deliver a lot of brick is to be of no account unless the seller is
permitted to commence delivering by a certain day, and he, after such
day, delivers a part, this will be a waiver of his right to avoid the
agreement, and when sued for not delivering the balance, lie can not
INDEX.
703
CONTRACTS. Sale of personal property. Continued.
avoid liability on the ground he was prevented from commencing on
the day named. Moulding et al. v. Prussing et al. 151.
Impossible condition.
15. Where one makes a contract to do a thing which, in itself, is
possible, he will be liable for a breach of such contract, notwithstanding
it was beyond his power to perform it ; but where, from the nature of
the contract, it is apparent the parties contracted on the basis of the
continued existence of a given person or thing, a condition is implied,
that if the performance becomes impossible, from the perishing of the
person or thing, that shall excuse the performance. Walker et al. v.
Tucker et al. 527.
16. Where a lessee of coal mines covenants, by the terms of his lease,
to work the same, during the continuance of his lease, in a good and
workmanlike manner, he is liable for a breach of his covenant, notwith-
standing it may be beyond his power to perform it ; but if the coal
mines become exhausted, that will excuse him from any further per-
formance; Ibid. 527.
For sale of land.
17. When acts of vendor and vendee are concurrent. Where a contract
for the sale of land provides for the payment of a portion of the purchase
money upon the delivery of a deed for the premises, and an abstract
showing good title thereto, and that the balance of the purchase money
shall be secured by notes and a mortgage or deed of trust, the delivery
of the deed, on the one side, and the payment of the first installment
and the delivery of the notes and deed of trust, on the other, are concur-
rent acts, to be mutually performed by the parties at one and the same
time, and neither can be required to proceed before the other performs,
or offers to perform, on his part. Oerrish v. Mother, 470.
18. When offer to perform unnecessary. And as a general rule, sub-
ject to some exceptions, either party desiring to place the other in de-
fault, must perform, or offer to perform, on his part; but an offer to
perform by one party is not necessary when, at the time for performance,
it is not in the power of the other to perform, or he unconditionally re-
fuses to perform. Ibid. 470.
19. Party failing to perform waives all rights. When a contract for
the sale of land provides for the payment of a part of the purchase
money, and the execution and delivery of notes secured by a deed of
trust for the balance, upon the delivery of a warranty deed for the land,
and an abstract showing good title thereto, and no particular time is
fixed by the contract for the performance of these concurrent acts, and
the parties afterwards agree upon a particular time and place at which
to meet and perform, and one of them goes to the appointed place at
the appointed time, prepared to perform on his part, and the other one
fails to go, the one so failing waives all right to afterwards insist upon
704: INDEX.
CONTRACTS. For sale of land. Continued.
the performance of the contract, or the recovery of damages for the
breach of it. Oerrish v. Maker, 470.
20. Performance — when it is of the essence of the contract. A provision
in a contract for the sale of land, that, if the vendee failed to make either
of the payments therein provided for, the vendor, at his option, might
declare a forfeiture, in effect, makes time of the essence of the contract,
and imposes upon the vendee the necessity of offering to perform on
his part at the time named in the contract. Kimball et al. v. Tooke,
553.
21. The vendor sold land to the vendee, to be paid for in several in-
stallments, the first of which became due on the 15th day of the next
month. The contract provided that, in case of the failure of the vendee
to make either of the payments, the vendor might, at his option, declare
a forfeiture. It was held, that the vendee was bound to tender payment
of the first installment when it became due, to avoid a rescission of the
contract. Ibid. 553.
22. When incumbrance no excuse for non-performance. In such a
case, the fact that there was an incumbrance or cloud upon the title,
would not relieve the vendee from the obligation to make an offer of
performance on his part, and the mere omission to make such offer
would warrant a rescission of the contract by the vendor. Ibid. 553.
23. When sale depends on title, purchaser must elect in reasonable
time. See CHANCERY, 25, 26.
24. Purchaser not bound to take a doubtful title. Same title, 24.
Change op contract under seal.
25. By a subsequent verbal one. A sealed building contract may be
changed by a subsequent verbal agreement to pay an additional sum for
the same work and materials mentioned in the original, and if the work
is done under the same, it will be binding. Cooke v. Murphy et al. 96.
26. Whether subsequent verbal contract abrogates prior written one.
Where a written building contract is subsequently changed, by parol,
only as to the consideration to be paid for the work, when completed,
increasing the sum, this will not be an abandonment of the written con-
tract, but it will remain in force, except as to the price to be paid.
Ibid. 96.
Uncertainty and repugnancy.
27. On the sale and purchase of brick, the parties, on the same day,
made the following memoranda: " Bought 500,000 of good, merchant-
able brick from Messrs. A and B, to be delivered on Wabash avenue,
just south of Van Buren street, at the rate of $6.37 per thousand, to be
delivered this fall. A & B." And the other parties executed and signed
the following: " Sold 50,000 good, merchantable brick to C & D, just
south of Van Buren street, at $6,373^ per thousand ; said C & D agree
INDEX. 705
CONTRACTS. Uncertainty and repugnancy. Continued.
that we shall commence to deliver on Wednesday next, or agreement is
of no account. C & D." Held, that the memoranda, when separately
considered, showed no sale, because, by the terms used, each party con-
tracted with themselves, and taken together, were void for uncertainty
and repugnance, and failed to express any contract. Moulding et al. v.
Prussing et al. 151.
Time of performance.
28. When of the essence of the contract. Time may be implied as
essential in a contract, from the nature of the subject matter of the
contract. If the thing sold be of greater or less value, according to
the effluxion of time, then time is of the essence of the contract, and
must be observed in equity as weli as at law. Hoyt v. Tuxbury et al.
331.
Implied covenant.
29. By a demise of farming lands a covenant is raised, by implica-
tion of law, that they shall be used as such, and in the absence of
express covenants in reference thereto, the law also implies covenants
on the part of the lessee that no waste shall be committed ; that the
land shall be farmed in a husbandlike manner ; that the soil shall not
be unnecessarily exhausted, by negligent or improper tillage, and that
repairs shall be made. Walker et al. v. Tucker et al. 527.
Agreement to make abstract of title.
30. Implication as to ability. If a person engages in the business of
searching the public records, examining titles to real estate, and making
abstracts thereof, for compensation, the law will imply that he assumes
to possess the requisite knowledge and skill, and that he undertakes to
use due and ordinary care in the performance of his duty ; and for a
failure in either of these respects, resulting in damages, the party
injured is entitled to recover. Chase et al. v. Reaney, 268.
31. A party examining the title to real estate for pay, can not limit
his liability by an obscure certificate to the abstract, without specially
calling the attention of the other party to it. If he discovers that he
can not furnish a complete and reliable abstract, it is his duty to give
the other party notice of the fact, that he may apply elsewhere; other-
wise, such other party will have a right to rely on his competency and
fidelity in this respect. Ibid. 268.
Contract to employ for service.
32. Whether it must be mutual. Where, by the terms of a contract,
the defendant covenanted to employ the plaintiff for a definite time, it
is wholly immaterial, in a suit for wages on such contract, whether the
plaintiff agreed in said contract to serve the defendant during the time
specified or not, if he, in fact, was ready and offered to do so. Mahon
et al. v. Daly, 653.
33. Measure of damages for breach of contract to employ. See
MEASURE OF DAMAGES, 5, 6.
45— 70th III.
706 INDEX.
CONTRACTS. Continued.
Building contracts.
34. Contractors become guarantors when they deviate from the work-
ing plans. The contractors of a building have no right to depart from
the working plans which are made a part of their contract, without
consent, and if they do, they will become guarantors of the strength
and safety of the building. Clark et al. v. Pope et al. 128.
35. Contractor is not excused for not understanding plans. The fact
that a party has contracted to erect a building after certain plans, draw-
ings and specifications, implies that he understands them, and the law
will not allow him to escape liability on the ground that he exercised
ordinary care and skill to understand the same, and failed to compre-
hend them. Ibid. 128.
36. In such a case, where the work is to be done under the direction
of an architect, if there is obscurity in the drawings and specifications,
the contractors should apply to the architect for directions. If they
rely on their own judgment, and a mistake occurs, they must bear the
consequences. Ibid. 128.
37. Recovery when full performance prevented. Where a party, under
a contract with the owner of a building, then being erected, to manu-
facture and put into the building certain iron work, had completed the
work, except putting it into the house, and was prevented from so doing
by the owner not being ready with the other work to receive the iron
work, and the building was burned before the work could be done after
notice : Held, that as the workman was no way in default, up to the
time of the destruction of the building, and there being no building
provided afterwards to receive the work, he was entitled to recover
under the common counts for the material manufactured and labor
done. Rawson v. Clark et al. 656.
38. Responsibility of contractors for defects. Where parties con-
tracting to build a church, construct the same in a workmanlike man-
ner, according to the plans referred to in the contract, or, in case of any
material deviation, where it is made with the consent of the other party,
they will be under no responsibility for its subsequent destruction,
whether caused by its own inherent weakness in the mode of construc-
tion, or from the violence of storms. Clark et al. v. Pope et al. 128.
39. Construed as to risk. Where a contractor agreed to manufacture
the iron work for a house being built, and put up the same, the work
to be at his risk until the building was completed, it was held, that the
manufacturer did not assume the risk of the building, which was
destroyed, but only his materials furnished, and therefore that the
destruction of the building by fire did not operate to prevent him from
recovering the price of the iron work manufactured and ready to be
delivered. Raioson v. Clark et al. 656.
40. Acceptance, how far a waiver of defects. Where a party accepts
work done upon a house by a builder, he does not thereby waive objec-
INDEX. 707
CONTRACTS. Building contracts. Continued.
tions to any latent defect there may be in the work which, at the time
of acceptance, is not open to inspection. Korf v. Lull, 420.
41. Architect's certificate, when conclusive of the rights of the parties.
Where a contract for building a house provides that the work shall be
done under the direction of an architect therein named, and upon his
certificate that the terms of the contract have been complied with, the
price agreed upon is to be paid, the certificate of the architect, made in
compliance with the agreement, is conclusive of the rights of the par-
ties. Ibid. 420.
42. Notice before architect certifies. In such case, it is not necessary,
unless so expressed in the contract, for the builder to give notice before
applying to the architect for such certificate. Ibid. 420.
43. Whether architect's certificate necessary. Where a party sought
to recover the price of certain iron work manufactured for a building,
which he was to put up and be paid for upon the estimate of an archi-
tect, the building having been destroyed by fire before the same could
be put up, and the workman being in no default, it was held, that the
case contemplated for the architect's certificate never arose, and that a
recovery could be had without it, according to the contract price for the
iron work manufactured. Rawson v. Clark et al. 656.
44. Waiver of right to certificate of architects. Where a contract for
the building of a church provides that the work shall be done in a good
and workmanlike manner, to the satisfaction of the architects furnish-
ing the plans and specifications, to be certified under their hands, the
church committee are under no obligation to accept the building with-
out such certificate, but this is a privilege which they may waive.
Clark et al. v. Pope et al. 128.
45. Impeaching certificate of architect for fraud. Where, by con-
tract, the owner of a building in process of erection was to pay the con-
tractor for his labor and materials as the work progressed, the fact that
the work specified in the architect's certificate lacked some $45 of
being completed will not be sufficient to impeach the certificate for.
fraud, and justify the owner in refusing to pay for at least the work
actually done. Lincoln v. Schwartz et al. 134.
46. Right to abandon and sue on part performance. In a contract to
furnish materials and do work on a building, where the employer
refuses to pay for the work and material furnished, on the architect's cer-
tificate, as he has agreed to do, the employee will be justified in aban-
doning the work, and he may recover for the work done and the mate-
rials furnished. Ibid. 134.
Bill of lading.
47. When it constitutes a contract. See CARRIERS, 2.
708 INDEX.
CONTRACTS. Continued.
Compensation of agent.
48. To give a share in profits of land sold, is a personal contract.
See AGENCY, 10.
Forfeiture of contract.
49. Belief in equity. See FORFEITURE, 1, 2, 3.
By what law governed.
50. Laws of the place where to be performed govern. See LEX
LOCI, 1.
CONVERSION. See TROVER, 1.
CONVEYANCES.
By married women.
1. May be proved. Since the act of 1869, the deed of a married
woman is valid and binding upon her, though not acknowledged as re-
quired by the act of 1845, and if the certificate of acknowledgment is
defective, it may be proved, as in the case of a feme sole. Terry et al.
v. Trustees of Eureka College, 236.
2. Execution by married woman may be admitted. Where a bill to
foreclose a deed of trust, executed by a husband and wife since the act
of 1869, charges that the defendants made, executed and delivered the
same, the default of the defendants is an admission of that fact, and
will dispense with the necessity of proving the execution of the deed as
to the wife. Ibid. 236.
Deed executed in blank.
3. If blanks are filled without authority it will be void. If a deed
has no description of any land or the name of any grantee, but is in
blank, except the names of the grantors, and the blanks are afterwards
filled so as to show a grantee and a description of land, without author-
ity, it will be void. Wilson v. South Park Commissioners, 46.
Tenants in common.
4. One tenant in common can not convey whole premises. See TEN-
ANTS IN COMMON, 1.
Reservation of property.
5. Whether a fixture. See FIXTURES, 1.
CORPORATIONS.
Construction of powers granted.
1. Implied condition. There is always an implication connected
with grants to corporations, that, in performing their functions and ex-
ercising their powers, they shall only employ lawful and honest means.
Northwestern Fertilizing Co. v. Hyde Park, 634.
INDEX.
709
CORPORATIONS. Construction of powers granted. Continued.
2. Means to carry out 'powers granted. When a grant of power is
conferred on such bodies, and the means of its exercise are not specified,
they may employ the most natural and appropriate legal means to
accomplish the end ; but they are not thereby authorized to employ any
means they choose, without regard to the rights of others, the interests
of individuals, or the welfare of communities. The means adopted
must be suitable to the end, and in conformity with the maxim, sicutere
tuo ut alienum non lozdas. Northwestern Fertilizing Go. v. Hyde Park,
634.
3. Police power of State over. See CONSTITUTIONAL LAW, 5,
6,7.
Power to give chattel mortgage.
4. Where the charter of a private corporation granted to the company
" all the powers incident and useful to corporations:" Held, that the
language was broad enough to include the power to make a chattel
mortgage on property purchased by it, for the price. Badger v. Batavia
Paper Manufacturing Co. et al. 302.
Municipal corporations.
5. Contracts, without authority of law, void. Contracts of public
corporations, made through their officers without authority of law, are
void, and in an action upon them, the corporation may successfully in-
terpose the plea of ultra vires, setting up as a defense its own want of
power under its charter, or constituent statute, to enter into the contract.
Miller et al. v. Goodwin et al. 659.
Legislative control over corporations.
6. Generally. See CONSTITUTIONAL LAW, 1 to 7; CEME-
TERY, 2.
COSTS.
On bill to redeem from mortgage. See MORTGAGES AND DEEDS
OF TRUST, 18.
COUNTY COURT.
Presumption as to jurisdiction. See JURISDICTION, 2.
COURTS.
By whom courts to be held.
1. Courts in Cook county. The intention of the constitution of 1870
is, to give the several judges of the circuit and Superior courts of Cook
county identically the same powers, and place them on the same footing
of circuit courts, but composed of branches corresponding with the
number of judges, each judge, while holding such branch, to have all
the powers of a circuit court. It does not require a majority of the
710 INDEX.
COURTS. By whom courts to be held. Continued.
judges of either of said courts to sit together, but each may hold court
by himself. Jones v. Albee, 34.
2. Whether judge may hold court out of his circuit. While the con-
stitution requires each circuit judge to reside in the circuit in which he
is elected, yet he is not, in terms or by implication, prohibited from
holding court in another circuit, in such manner as may be prescribed
by law. Ibid. 34.
3. A circuit judge from a different circuit may properly preside as a
judge in the Superior Court of Cook county, when requested, under the
provisions of the act of May 3, 1873, and the proceedings before him
will not be invalid on that account. Ibid. 34.
4. Placita should show the judge holding the court. The placita of
the record, in a case coming from the courts of Cook county, should
show that the court was held by one judge only, and he should be the
one before whom the cause was tried, and he should sign the bill
of exceptions in actions at law, and sign decrees, and certify the evi-
dence in suits in equity. Ibid. 34.
Local, laws abrogated.
5. Criminal Court of Cook county. The 12th section of the act en-
titled "An act to provide sanitary measures and health regulations for
the city of Chicago," etc., approved February 16, 1865, which authorizes
the filing of an information, etc., is local, applying to the practice in the
Criminal Court of Cook county only, and is therefore abrogated by sec-
tion 29 of article 6 of the new constitution, and no trial and conviction
can be had under such statute. Mitchell v. The People, 138.
Rules of court. See that title.
COURT HOUSE AND JAIL.
Powers and duties of board of supervisors in respect to. See
BOARD OF SUPERVISORS, 1.
CRIMINAL LAW.
Forgery.
1. Filling blanks in deed without a power of attorney. The filling
up of the blanks in a deed signed by the grantor, with the name of a
grantee, and a description of land, without authority, is a criminal act,
and makes the party so offending liable to a prosecution for forgery.
Wilson v. South Park Commissioners, 46.
Assault with intent to rob.
2. The proof must indicate the intent. On an indictment for an
assault with intent to commit a robbery, proof of a wanton assault,
without any facts from which an intent to rob can be inferred, will not
sustain a conviction. Garrity v. The People, 83.
INDEX. 711
CRIMINAL LAW. Continued.
"Waiver of defendant's rights.
3. While it is true that a defendant in a capital case will not be pre-
sumed to have waived any of his rights, yet he may waive any of them,
but the record must expressly show his consent thereto. Perieet v. The
People, 171.
Threats.
4. Evidence thereof . See EVIDENCE, 24.
Witnesses.
5. Prosecution not restricted to witnesses on back of indictment. See
PRACTICE, 6.
CURTESY.
In wife's lands bought prior to 1861.
Husband takes, notwithstanding parol ante-nuptial agreement to the
contrary. See HUSBAND AND WIFE, 1.
DAMAGES.
Exemplary damages.
1. In action by wife for sale of intoxicating liquor to her husband
See INTOXICATING LIQUORS, 3, 4, 5.
Mitigation of damages.
2. In trespass. See MEASURE OF DAMAGES, 17, 18, 19.
Condemnation of right of way.
3. Of damages in respect thereto. See RIGHT OF WAY, 1 to 9.
Of excessive damages. See NEW TRIALS, 5, 6, 7.
DEBT.
When the action will lie.
1. In general. The action of debt lies whenever indebitatus assump-
sit will lie, and is a concurrent remedy. To maintain debt upon a
specialty, the instrument must show upon its face an undertaking to
pay a sum certain to a specified person, and at a certain time. Larmon
v. Carpenter, 549.
2. An action of debt will not lie upon an ordinary chattel mortgage
which contains no promise, undertaking or covenant, by the mortgagor,
to pay the money secured by it. Ibid. 549.
DECREE.
Impeaching collaterally.
1. For error. If the court has acquired jurisdiction in an applica-
tion by an administrator to sell real estate, the failure to appoint a
guardian ad litem for infant defendants, is but an error, which can not,
712 INDEX.
DECREE. Impeaching collaterally. Continued.
be urged in a collateral proceeding involving the title acquired under
the decree. Barnett v. Wolf, 76.
HOW FAR CONCLUSIVE.
2. Finding as to jurisdiction. See JURISDICTION", 7, 8, 9.
3. As an estoppel. See FORMER ADJUDICATION, 1, 2, 3.
DEEDS.
Deeds in blank.
1. Void if blank filled without authority. See CONVEYANCES, 3.
2. Criminal liability for filling blank without power of attorney.
See CRIMINAL LAW, 1.
3. Civil liability of parties obtaining money under deed containing
blank as to grantee. See FRAUD, 1.
DEEDS OF TRUST. See MORTGAGES AND DEEDS OF TRUST,
19 to 24.
DEFAULT.
Setting aside, upon terms.
1. Where the defendant in a proceeding to enforce a mechanic's lien,
fails to answer on or before the day on which the cause is set for trial
on the docket, and his default is taken, in the absence of sufficient cause
shown it is not error to refuse to set aside the default, either at the same
or the next succeeding term. And in such case, if the court imposes
terms as a condition to opening the default, it is no error. Freibroth v.
Mann, 523.
Effect of a default as an admission.
2. By married woman, the execution of a mortgage sought to be fore-
closed, dispenses with proof of execution. See CONVEYANCES, 2.
DEMAND.
In forcible entry and detainer.
1. No particular time required. See FORCIBLE ENTRY AND
DETAINER, 1.
2. Sufficiency of proof See FORCIBLE ENTRY AND DE-
TAINER, 2, 3.
DEPUTY.
Execution of return to process. See PROCESS, 1.
DISCRETIONARY.
Of matters generally.
1. Amendment of bill. See AMENDMENTS, 1, 2.
2. Decreeing specific performance. See CHANCERY, 21.
3. Requiring special verdict. See PRACTICE, 5.
INDEX. 713
DISSEIZIN.
Measure op damages in action by disseizee against disseizor.
See MEASURE OF DAMAGES, 11, 12, 13.
DIVISION FENCE. See FENCES, 1.
DIVORCE.
Proof of adultery.
1. Should be clear. It being important to the well-being of society
that the marriage relation should not be severed, clear proof should be
required where a divorce is sought from a wife for adultery. Blake v.
Blake, 618.
2. Sufficiency of proof. See EVIDENCE, 25, 26.
DOWER.
In what estate.
1. Generally. To entitle a widow to dower, her husband, at some
time during coverture, must have been seized of either a legal or equit-
able estate in land. If an equitable title, it must have been such that,
in case of his death, it would have descended to his heirs at law as real
estate, instead of going to his personal representatives as a chattel inter-
est or chose in action. Nicoll v. Todd et al. 295.
2. Where, before a conveyance to a husband, another person acquires
an equitable title to land by purchase and part payment of the purchase
money, and takes possession, makes improvements, and finally com-
pletes his payments, and receives a deed before the prior deed is re-
corded, the widow of the prior grantee will not be entitled to dower in
the land. Ibid. 295.
Where the land is not paid for.
3. The widow of one who, in his lifetime, had made a contract to
purchase land, but had not paid the entire purchase money, is not en-
titled to dower in such land when there is not sufficient personal estate
of the deceased, out of which to complete the payment of purchase
money. Greenbaumv. Austrian, 591.
4. If, however, there is personal estate in the hands of the adminis-
trator, and he completes the payment of the purchase money, then the
widow's dower will attach. Ibid. 591.
5. Where a party made a contract for the purchase of land, and died
before making full payment, if his heirs complete the payments, it is
incumbent upon the widow to contribute her relative portion of the pur-
chase money remaining unpaid at her husband's death, to entitle her to
dower in the land. Ibid. 591.
714 INDEX.
EJECTMENT.
Legal title must prevail.
1. Over an equitable one derived from verbal contract. The plaintiff,
in an action of ejectment, sold a farm to A, on a credit of ten equal
annual payments, and A, with his consent, sold 32 acres of the same to
the defendant in ejectment, it being verbally agreed that, when the de-
fendant paid the price, and A should pay the same to the plaintiff, the
latter would- convey to the defendant. The defendant completed his
payment, which was paid to the plaintiff and credited on A's contract,
and the plaintiff afterwards sought to recover the land in ejectment:
Held, that the claim of A to the tract so purchased by him, in its fullest
extent, constituted no defense to the action of ejectment, and that the
defendant's recourse for relief was in a court of equity. Fleming v
Carter, 286.
ELECTIONS.
Waiver of irregularities.
1. By taking part. "Where an election for school trustee was held,
but not at the place designated in the notices thereof, and the relator,
who sought to avoid the election on that ground, participated in the
same, by voting, and running as an opposing candidate, it was held,
that a sound public policy would forbid him from having the election
of his opponent declared void on this ground, and that a rule nisi to
show cause why an information by him should not be filed was prop-
erly discharged. People ex rel. v. Waite, 25.
ELECTION.
AS TO CHARACTER OF INSTRUMENT.
Whether binding. See MORTGAGES AND DEEDS OF TRUST, 3.
EMINENT DOMAIN. See RIGHT OF WAY.
ERROR.
To reverse, must work an injury. See PRACTICE IN SUPREME
COURT, 8 to 11.
ESTOPPEL.
By acts of party
1. A party, who was an adult, claimed an interest in certain land,
and executed to his brother-in-law a power of attorney, authorizing him
to sue for and recover his interest in such land, and to mortgage and
incumber the same, and also executed a mortgage to an attorney at law,
reciting that such attorney had brought suit for the recovery of his inter-
est in the land, in and by which mortgage he agreed to give said attor-
ney a certain portion of whatever interest was recovered. Afterwards,
INDEX. 715
ESTOPPEL. By acts of party. Continued.
by consent and agreement of both the said attorney in fact and attorney
at law, on the one side, and the parties and attorneys on the other side,
the suit was settled, and the land in controversy was sold under a mort-
gage, which was one of the subjects of controversy in the suit, and the
claimant received a portion of the proceeds of such sale : Held, that
he was bound by this arrangement made by his attorney at law and in
fact, and could not afterwards set up any claim to the land. Chicago,
Mock Island and Pacific Railway Co. v. Kennedy et al. 350.
By former adjudication or decree.
2. When forms part of title to land and runs with it. See FORMER
ADJUDICATION, 2.
To dispute account rendered. See ACCOUNT RENDERED, 1.
To avoid an election for irregularities. See ELECTIONS, 1.
EVICTION.
Eviction of tenant by landlord.
What constitutes. See LANDLORD AND TENANT, 1
EVIDENCE.
Judicial notice.
1. Of matters relating to organization of counties. This court will
take judicial notice of the result of an election on the question of the
removal of a county seat, as a fact connected with the organization of
counties, where the question is drawn in issue collaterally. Andrews v.
Board of Supervisors of Knox County, 65.
2. Acts of Congress, and surveys as to public lands. This court takes
judicial notice of the acts of Congress in regard to the disposal of the
public lands, and of the kind of evidence furnished to a purchaser, and
of the system of surveys adopted for those lands by Congress. This
court also takes judicial notice of the division of the State into coun-
ties. Gooding v. Morgan, 275.
Parol evidence.
3. To vary or explain written contract. Parol testimony is inadmis-
sible to show that certain written memoranda are contracts, and supply
their terms, but the writings must be construed by themselves. Mould-
ing et al. v. Prussing et al. 151.
4. Where the contract of the parties is reduced to writing, parol
evidence, offered to show a different contract from that shown by the
writing, is properly excluded. Holliday & Ball v. Hunt, 109.
5. To limit liability of guarantor. In a suit upon a written guar-
anty of the payment of a note, a plea which sets up a parol contract
made at the same time, limiting the liability of the indorser or guar-
antor, can not be sustained upon any principle of law. Jones v. Albee,
34.
716 INDEX.
EVIDENCE. Parol evidence. Continued.
6. To change liability of indorser of note. In an action by an in-
dorsee of a promissory note against the indorser, it may be shown by
parol that the indorsee held as agent for the indorser, or in trust, or for
collection merely, or that the same was sold without recourse, and that
the indorsement was afterwards made merely to transfer the legal title.
These cases are exceptions to the general rule. Jones v. Albee, 34.
7. Of contract attempted to be expressed in writing, but which is void
for uncertainty. Where a contract, as reduced to writing, is void or
unintelligible from any cause, parol evidence may be received under
appropriate special counts, to prove the verbal contract. Moulding
et al. v. Prussing et al. 151.
8. Of the verbal understanding aside from writing. The rule hold-
ing, when parties reduce their agreement to writing, that all antecedent
verbal agreements in reference to the matter are merged, and it must
alone govern, has reference to legal and valid agreements, and not to
those which are void or wholly unintelligible. Ibid. 151.
9. This is not the case where the contract is required to be in writing,
as, under the Statute of Frauds. Ibid. 151.
10. To contradict record of a judgment. If the record of a judg-
ment rendered in a sister State shows that the defendant was personally
served with process, or recites any other facts showing jurisdiction
over hjs person, parol evidence is inadmissible to contradict the same
in a suit upon a transcript of the record properly certified. Zepp v.
Hager, 223.
11. The record of a court can never be contradicted, varied or ex-
plained by evidence outside the record itself; but one part may be con-
tradicted by another, or limited, qualified or explained. Barnett v.
Wolf 76.
12. To aid or impeach service of process. See SERVICE OF PRO-
CESS, 1.
13. To show want of jurisdiction. See FOREIGN JUDGMENT, 2.
Of secondary evidence.
14. When duplicate must be produced. If, from the nature of the
case, it is manifest that a more satisfactory kind of secondary evidence
exists, the party will be required to produce it; otherwise, the objector
must not only prove its existence, but, also, that it was known to the
other party in time to have been produced at the trial. Wilson v. South
Park Commissioners, 46.
15. Thus, where an original tax receipt was destroyed, and the fact
of there having been a duplicate receipt sent to a distant place, appeared
on the trial, but there was no proof that the party seeking to prove
payment of taxes had any prior notice of its existence, its was held,
that parol evidence was properly received. Ibid. 46.
INDEX.
717
EVIDENCE. Of secondary evidence. Continued.
16. Of contract from report of case. It is error to allow in evidence
what purports to be a contract of sale, from a volume of the reports of
this court, against objection, as it is not the best evidence of its terms.
If the original was lost or destroyed, on proof of that fact, secondary
evidence of its contents might be introduced. In such a case, if the
contract was correctly copied into the bill of exceptions, this would be
competent evidence of its terms and contents, but without proof that
the contract set out in the opinion of this court as published, was the
same as that copied in the bill of exceptions, the report of the case is
not admissible. Hoyt v. Shipherd et al. 309.
17. Parol evidence of the contents of the private books of a third
party, without any basis being laid therefor, is incompetent. Walker
et al. v. Douglas et al. 445.
Burden of proof.
18. Action an lease. Where the plaintiff seeks to recover under the
terms of a verbal lease of land to the defendant, the burden of proof
lies on the plaintiff to prove the terms of the leasing as alleged by
him. If the evidence does not preponderate in his favor, or is equally
balanced, the issue should be found for the defendant. East v. Crow,$l.
19. As to set-off. The burden of proof is on the defendant, in respect
to any set-off claimed by him, and he must establish the existence and
validity of his set-off by a preponderance of evidence. Ibid. 91.
20. To show want of probable, cause, in malicious prosecution. See
MALICIOUS PROSECUTION, 7.
Declarations of third person.
21. In an action against a railroad company, to recover damages for
killing the plaintiff's intestate through a collision at a road crossing,
the company sought to prove the declarations of a person who was riding
with the deceased in his wagon at the time, made just after the accident,
which the court refused : Held, that the evidence was inadmissible, the
person injured being in a dying condition, and not capable of assenting
to what was said. Chicago, Rock Island and Pacific Railroad Co. v.
Bell, Admr. 102.
Relevancy.
22. Evidence as to habits of party killed. In an action to recover of
a railroad company for the killing of a person, where the negligence of
the deceased, as well as that of the company, was involved, the company
inquired of a witness as to the habits of the deceased in general, with-
out specification as to the sort of habits sought to be proved, which the
court excluded: Held, that the court was justified in rejecting the
offered testimony, for the reason that the habits were not particularized
so as to show their bearing on the case. Ibid. 102.
71 S INDEX.
EVIDENCE. Continued.
Materiality.
23. Where a plaintiff had testified, without objection, that his firm
had charged the defendant with thirty-three plows, and then testified
that, in settlement, defendant said he did not know anything about the
number of plows received; that his son said seven plows were charged
which lie never received ; that they had been credited with part of the
money, and they paid for all but the seven plows they never got, and
the witness then testified, under objection, that the seven plows were
charged to the defendant: Held, that the evidence objected to could
not prejudice the defendant, the question being whether the thirty-three
were all delivered, and the testimony objected to not tending to prove a
delivery of the seven which were disputed. Reynolds v. Palmer & Hop-
per, 288.
Proof of threats.
24. Whether allowable. On the trial of one for the murder of his
wife, where the proof showed that the accused left the house where the
homicide occurred, the defense will not be allowed to prove threats of
violence against the defendant, which he did not hear or had any knowl-
edge of at the time, for the purpose of showing a pretext for his leaving.
Perteet v. The People, 171.
Adultery — circumstantial evidence.
25. Adultery may be established by circumstantial evidence, but the
proof must convince the mind affirmatively that actual adultery was
committed, as nothing short of the carnal act can lay a foundation for a
divorce. Blake v. Blake, 618.
26. If a married woman is shown, by undoubted proof, to have been
in an equivocal position with a man not her husband, leading to a sus-
picion of adultery, and it is proved that she had previously shown an
unwarrantable predilection for that man ; that they had been detected
in clandestine correspondence, had stolen interviews, made passionate
declarations; that her affections were alienated from her husband, and
that her mind and heart were already depraved, and nothing remained
wanting but an opportunity to consummate the guilty purpose, then
proof that such opportunity had occurred, will lead to the satisfactory
conclusion that the act has been committed. But, when these circum-
stances, are wanting, the proof of opportunity and equivocal appearances
affords no evidence of adultery. Ibid. 618.
Weight of evidence.
27. How determined by jury. It is proper for the jury to apply to
the facts proved their general knowledge as intelligent men. They
must test the truth and weight of evidence, and what it proves, by their
knowledge and judgment derived from experience, observation and
reflection. Kitzinger v. Sanborn et al. 146.
28. Where two witnesses flatly contradict each other. Where two
witnesses upon an issue flatly contradict each other, the court trying the
INDEX.
719
EVIDENCE. Weight of evidence. Continued.
case can, from the difference in their manner of testifying, from their
standing, and a variety of circumstances, determine much better than
this court which one is entitled to be believed. So that where a ques-
tion of fact depends solely on such evidence, this court must depend
largely upon the judge below for its determination. Sturman v.
Streamer, 188.
29. Bill in chancery informer suit — of its weight as evidence. Where
it appeared that, when a bill in chancery was partly drawn, a jurat was
prepared and sworn to by the complainant, and the attorney afterwards
completed the same, but it was never filed, and the complainant testified
that he did not know the contents, it was held, that, if the bill was ad-
missible in evidence against the complainant, it was of but little weight.
Burnham v. Roberts, 19.
Affidavit for continuance.
30. Effect of admission of its statements. Where an affidavit for a
continuance on account of the absence of a witness was admitted, the
court instructed the jury that they should attach no more weight " to
the statements than would be attached to the statements of a witness
who does not disclose his means of knowledge, and who is not subject
to cross-examination :" Held, that the instruction was erroneous, as it
contained an intimation from the court that full confidence was not clue
to the statements contained in the affidavit, and a suggestion that the
absent witness might not have had due means of knowledge, or that a
cross-examination might have impaired the credibility of the statements
TJtley v. Burns, 162.
31. Where an affidavit for a continuance is agreed to be admitted as
evidence so far as it is relevant, this will not entitle the whole of it to
be read in evidence, and there will be no error in excluding such parts
as are not relevant. Chicago and Northwestern Railway Co. v. Clark,
Admx. 276.
Books of account.
32. When produced on notice. Where a party is required to produce
his books of account, to be used as evidence, and he produces not the
books of original entries, but his ledger, which was not embraced in the
notice, and which is inspected, merely, by the opposite party, he will
not have the right to have the same considered as evidence in his favor.
Harper et al. v. Ely et al. 581.
Examination of witness.
33. Answer must appear if question is assigned for error. Where
the allowing of a certain question to be answered by a witness, is as-
signed for error, the answer must be preserved in the record, so that it
may be seen whether it was of prejudice to the party complaining.
Huftalin v. Misner, 55.
720 INDEX.
EVIDENCE. Examination of witness. Continued.
34. Error in respect to, obviated. Although the court may err in dis-
allowing a question, }^et, if the witness afterwards substantially answers
the same, the error will be obviated. Uuftalin v. Misner, 55.
Legal conclusions fob the court.
35. Not the witness. A question to a witness who had previously
rented premises, and whose term had expired, whether he was not in
possession at the time of an expulsion of the plaintiff, is properly ex-
eluded, as calling for a legal conclusion, especially if he had already
detailed the facts of the case in relation to his occupancy. Ibid. 55.
In respect to the passage of laws.
36. Journal entries of the two houses of the legislature. A transcript
from the journal record of either house of the legislature, of its pro-
ceedings, properly certified, is admissible in evidence to prove the facts
therein recorded. It is not necessary to produce the original minutes
made by the officers of the respective houses, or copies thereof. Miller
et al. v. Goodwin et al. 659.
37. Journals not required to be signed. The law does not require
that the officers of the General Assembly shall sign the record of the
proceedings of either house, or that the copying clerks shall certify to
the accuracy of their work, in order to make the same admissible as
evidence. Ibid. 659.
TO ESTABLISH TRUST.
38. When proof must be clear and satisfactory. See TRUSTS AND
TRUSTEES, 3.
Of demand.
39. Sufficiency of proof in forcible entry and detainer. See FORCI-
BLE ENTRY AND DETAINER, 3.
Proof of payment of a note.
40. Possession by the maker. See PAYMENT, 1.
Of the issue of stock by corporation.
41. Certificate of prima facie evidence. See STOCK OF RAILWAY
COMPANY, 4.
Proof of marriage.
42. At common law. See MARRIAGE, 3.
Evidence in mitigation of damages.
43. In trespass. See MEASURE OF DAMAGES, 17, 18, 19.
EXCESSIVE DAMAGES. See NEW TRIALS, 5 to 8.
EXEMPLARY DAMAGES.
For sale of intoxicating liquor. See INTOXICATING LIQUORS,
2 to 5.
INDEX. 721
EXEMPTION.
Of wages, from garnishment.
1. The wages of a party, to the extent of $25, are exempt from gar-
nishment, under the statute of 1872, where he is the head of a family,
and residing with the same in this State, even though he may intend to
remove out of the State. Window v. Benedict, 120.
FENCES.
Division fences.
1. Trespass by animals. Where parties own adjoining lands, sepa-
rated by a division fence, and the defendants' horses and cattle break
through defendants' portion of the fence, which is defective, and dam-
age the plaintiff's crops, the latter may maintain an action against the
defendants to recover the damages done by such stock, and this notwith-
standing his part of the fence is also defective. Ozburn et al. v. Adams,
291.
FIXTURES.
What constitutes.
1. Property reserved in conveyance, is not. Where a party takes a
conveyance for real' estate, which contains an express exception of a
steam boiler from its operation, he can not claim the boiler as a fixture
to the real estate, and that it is therefore a part of the realty. Badger
v. Batavia Paper Manufacturing Co. et al. 307.
FORCIBLE ENTRY AND DETAINER.
Of the demand for possession.
1. How long before suit, must demand be made. The statute relating
to forcible entry and detainer, and which requires a demand in writing
for possession, does not require the demand to be made a reasonable
time, or any definite time, before the commencement of suit. Huftalin
v. Misner, 205.
2. Sufficiency of demand by an agent. A demand of possession by a
landlord, which is served by his agent, where the demand itself dis-
closes the fact of the agency of the person serving the same, is suffi-
cient. Nixon v. Noble, 32.
3. Proof of service of demand. In a forcible entry and detainer suit,
the plaintiff testified that he served the demand for possession of the
premises on the defendant on a given day, which was the same day the
suit was brought : Held, that the proof was sufficient to sustain a find-
ing of service before the suit was brought, if any demand was neces-
sary. Huftalin v. Misner, 205.
Of the possession.
4. Proof of possession. Where the owner of premises had leased
them for one year, and, at the expiration of the term, went to the farm
and carried there a load of goods, and the tenant carried them up stairs
46— 70th III.
722
INDEX.
FOKCIBLE ENTRY AND DETAINER.
Of the possession. Continued.
into a room, and stated that he rendered up possession, and the landlord
performed some acts preparatory to occupying the house, and left with
the intention of returning on the following Monday, and had a deed for
the whole premises, it was held, that this showed a sufficient possession
of the premises to enable the landlord to maintain forcible entry and
detainer against one taking forcible possession before his return. Huf-
talin v. Misner, 205.
5. Evidence to show extent of possession. Where actual possession
of a part of premises is shown to be in the plaintiff, in an action of
forcible entry and detainer, the plaintiff's deed for the premises is proper
evidence for the purpose of showing the extent of his possession. Ibid.
205.
Title not involved.
6. The owner of land is liable in forcible entry and detainer, if he
makes a forcible entry upon the actual possession of the plaintiff.
Therefore it is not error to refuse to allow the defendant to prove a mort-
gage of the premises, and that he entered under the mortgagee. Ibid.
205.
Amendment of complaint. See AMENDMENTS, 3.
FORECLOSURE.
As to whole debt, when proper. See MORTGAGES AND DEEDS
OF TRUST, 7.
FOREIGN JUDGMENT.
Judgment in another State.
1. How far conclusive. A judgment rendered in a sister State is not
regarded as foreign, but as domestic, and the only question that can be
inquired into in a suit upon the same, is, whether the court had juris-
diction of the subject matter, and of the persons of the parties. Zepp
v, Hager, 223.
2. Evidence as to question of jurisdiction. If it appears, from the
record, that the court which pronounced judgment had jurisdiction of
the person of the defendant, it will be conclusive of the rights of the
parties, and no evidence can be heard to impeach it. But where the
record fails to show a proper service, or an appearance, the defendant
may show that he was not within the territorial jurisdiction of the
court, and in no manner submitted himself to its jurisdiction. Ibid.
223.
3. Replication to plea denying jurisdiction. See PLEADING, 7.
INDEX. 723
FORFEITURE.
When relieved against in equity.
1. If parties under no disabilities choose to contract for a forfeiture
in the sale and purchase of land, in the absence of any fraud or im-
proper practices on the part of the vendor, a court of equity can afford
the vendee no relief against the same. Brink v. Steadman et al. 24cl.
2. Forfeitures are not regarded by courts with any special favor, and
where a party insists upon a forfeiture, he must make clear proof, and
show he is entitled to it. It is a harsh way of terminating contracts,
and he who insists upon making a declaration of a forfeiture, must be
held strictly within the limits of the authority which gives the right.
Palmer v. Ford, 369.
3. Where a lease conferred upon a party a clear right to declare a
forfeiture for non-payment of rent, if the power of declaring the forfeit-
ure was properly exercised, a bill filed by the lessee against the lessor,
seeking relief against such forfeiture, 'and to enjoin the lessor from
prosecuting suits at law for the recovery of the possession of the leased
premises, should not be entertained. Ibid. 369.
Notice, before declaring forfeiture.
4. A lessee of a lot of ground erected a building thereon, under the
terms of the lease, for the purpose of renting the same to other tenants.
The lessor reserved the right to declare a forfeiture of the lease for de-
fault in payment of the ground rent, as it should become due. Several
installments of rent became due, but the lessor, at the instance of the
lessee, waived his privilege to declare a forfeiture, and did not press the
lessee for payment for more than a year, other than in receiving rents from
the tenants of the building, which had been provided for by agreement
of the lessee. Moreover, negotiations had been going on for an adjust-
ment of the matter of the ground rent, and the lessor had evinced a dis-
position to favor the lessee in that regard. It was held, that, under these
circumstances, notwithstanding the lessee had, by the terms of the lease,
expressly waived the right to any notice of an intention on the part of
the lessor to declare a forfeiture, yet he should have notice before such
declaration could properly be made. Ibid. 369.
Acquiescence in declaration of forfeiture.
5. Where it was claimed by a vendor that he had declared a forfeit-
ure of the contract for a failure by the vendee to make the first payment,
and the vendee, at a subsequent time, tendered the amount of such first
payment to the vendor, and the vendor refused to receive the same, and
stated to the vendee that the contract was at an end — that no contract
existed — it was still obligatory upon the vendee to make a tender of the
other installments as they became due, and a failure to do so will be an
acquiescence in the declaration of forfeiture, whether it was rightfully
made or not, in the first instance. Kimball et al. v. Tooke, 553.
6. Performance— to avoid. See CONTRACTS.
724 INDEX.
FORFEITURE. Continued.
Of term under lease, for non-payment of rent.
7. Of the demand at common law. See LANDLORD AND TEN-
ANT, 2.
FORMER ADJUDICATION.
Whether conclusive.
1. A valid judgment for the plaintiff sweeps away every defense
that should have been raised against the action; and this, too, for the
purposes of every subsequent suit, whether founded upon the same or a
different cause. Kelly et al. v. Donlin et ah 378.
2. A judgment which affects directly the estate and interest in land,
and binds the rights of the parties, is at least as effectual as a release or
confirmation by one party to the other. Such an estoppel makes part
of the title, and extends to all who claim under either of the parties to
it. It runs with the land, and extends to all who are privies in estate to
either of the parties. Ibid. 378.
3. A bill in chancery, amongst other things, alleged that, by means
of a sale made by an administrator, the heirs of the decedent were di-
vested of all their interest in the land, except the naked legal title, and
the prayer was, that the sale of said land made by the administrator be
decreed to have vested in the purchaser all the estate, right and title in
the land whereof the decedent died seized, and which, upon his death,
became vested in his heirs, and that such heirs be enjoined from setting
up or insisting on any right, title or interest in the land. A decree was
rendered, which found that the estate of the decedent in the land became
vested in the purchaser at the administrator's sale, and ordered the heirs
to convey, etc. : Held, that this decree was conclusive of the rights and
title of the heirs, and that the fact that the onlv specific objection made
by the heirs or considered in said suit, as to the validity of said admin-
istrator's sale, was, whether their ancestor died seized of such an estate
as could be sold for the payment of his debts, does not change or lessen
the conclusiveness of the decree. If any other objection existed to said
administrator's sale, they should have made it in that suit; and having
failed to do so, they are estopped from insisting upon it in another suit
about the same land. Ibid. 378.
Second appeal or writ of error.
4. A decision of this court is conclusive on second appeal or writ of
error. Ogden v. Larrabee, 510 ; Kingsbury v. BucJcner et al. 514.
5. When a cause has been once determined, on its merits, in the
Supreme Court, and remanded to the inferior court, and a decree is
there rendered in conformity to the decision of the Supreme Court, an
appeal from that decision will not be considered. Rising et ux. v. Carr,
596.
INDEX. 725
FORMER ADJUDICATION.
Second appeal or writ of error. Continued.
6. Such a proceeding is simply an effort to induce the Supreme Court
to review its former judgment, which can not be done in that way.
Rising et ux. v. Carr, 596.
7. On bill to declare a trust, and for partition of land, a decision of
this court establishing the trust, and remanding the cause with direc-
tions that a partition be made according to the rights of the parties in
interest, and an account be taken, will not preclude the parties from
showing that the ancestor's title was divested under a deed of trust,
given by him in his lifetime. Kingsbury v. Larrabee et al. 514.
FORMER DECISIONS.
Mechanic's lien.
1. Decree as to time of payment. The ground of the decisions in
Link v. Architectural Iron Works, 24 111. 551, and Rowley v. James, 31
111. 298, that the decree in a proceeding to enforce a mechanic's lien
should fix a time for the payment of the money, was that there was then
no redemption from the sale under such decree, but as redemption is
now allowed, the rule in those cases no longer obtains. Freibroth v.
Mann, 523.
FRAUD.
Delivering deeds in blank.
1. The delivery of a deed in blank, by which to obtain money of one
not informed of the fact that it is in blank, affords strong evidence that
a gross and palpable fraud was intended, which will make all the par-
ties to the fraud liable in an action for the damages resulting. Wilson
v. South Park Commissioners, 46.
False representations.
2. As to one's circumstances. If a party, knowing himself to be
insolvent or in failing circumstances, by means of fraudulent pretenses
or representations, purchases goods, with the design to cheat the vendor
out of the same, the latter may rescind the sale for fraud, and recover
the goods by replevin, if they have not passed into the hands of innocent
purchasers. Patten et al. v. Campbell, 72.
3. Where the only untrue representations made by a purchaser of
goods were, that he had purchased and could purchase of a certain
firm on four months' credit, and thereby obtained one more month's
credit, and it did not appear that he was insolvent at the time, or in
failing circumstances, though within two months afterwards he became
an involuntary bankrupt : Held, that the vendor had no right to rescind
the sale and recover back the goods in replevin. Ibid. 72.
Architect's certificate.
4. Tinder building contract — right to impeach it for fraud. See
CONTRACTS, 45.
726 INDEX.
FRAUD. Continued.
Chattel mortgage.
5. Whether fraudulent as to creditors. See MORTGAGES AND
DEEDS OF TRUST, 26.
Of the pleadings.
6. Plea must show the facts constituting the fraud. See PLEAD-
ING, 6.
7. When chattel mortgage may be shown fraudulent without any aver-
ment of the fact in pleadings. See PLEADING AND EVIDENCE, 4.
FRAUD AND CIRCUMVENTION.
In procuring execution op note.
1. If the execution of a promissory note is obtained through the
usual device of such men as go about the country as dealers in patent
rights, with papers so prepared as lo obtain a signature thereto, when
the signer has no intention or expectation of executing a note, it will
be void for the fraud and circumvention, even though the signer is
unable to explain just how the trick was played on him. Champion v.
Ulmer, 322.
GARNISHMENT.
Of the answer.
1. Truth of— whether material. Where a garnishee, in his written
answer, denies his liability, and he testifies as a witness in the case, and
his testimony is uncontradicted, it is a matter of no consequence whether
his answer is wholly true or not, and it is not proper to submit the
question to the jury to find whether the answer is true. Dieter v. Smith
et al. 168.
Liability of chattel mortgagee in possession. See MORTGAGES
AND DEEDS OF TRUST, 27, 28.
Effect of general and special verdict. See VERDICT, 1.
Exemption of wages. See EXEMPTION, 1.
GIFT.
Of a promise to make a gift.
1. A mere promise to make a gift of the promisor's interest in land,
without consideration, is not binding on the party making it, especially
when the use of the property is ample compensation to the promisee
for his improvements, and taxes paid by him. Walton v. Walton et al.
142.
Gift of a promissory note.
2. A promissory note executed and delivered by a party as a gift, is
not enforceable against the maker's estate, for want of a valuable con-
sideration to support it. It differs from the case of the delivery of a
note or obligation on a third person, which are the subjects of gifts
inter vivos or causa mortis. Blanchard v. Williamson, 647.
INDEX.
727
GRANT.
Of a legislative grant.
1. Construction. All grants by the legislature must, in cases of
doubt, be construed most favorably to the government. Northwestern
Fertilizing Go. v. Hyde Park, 634.
2. When an enactment will bear two constructions, one injurious to
the public and the other not, the courts must adopt that which will not
work injury. Ibid. 634.
GUARDIAN'S SALE.
Notice of application.
1. When the term is changed. Where a guardian's notice of an
application to sell his ward's land was to the April term of the court,
but the term of court was changed from April to March, by an act of
the legislature, it was held, that the application was properly made at
the March term, the notice standing in the place, and performing the
office, of process. Nichols v. Mitchell, 258.
HOMESTEAD.
Abandonment.
1. In order to claim a homestead exemption, the debtor must actually
occupy the premises as a residence. If the head of the family volun-
tarily leaves the premises, and removes to another place, where he and
his family reside for several years, leaving the property in the posses-
sion of tenants, the exemption will be lost. Fisher v. Cornell, 216.
When the right exists.
2. Not allowed as against title oy descent. The original Homestead
Act of 1851 exempted the homestead merely from levy and forced sale
under legal process, for debts, and this court has held that the amenda-
tory act of 1857 extended the original act to embrace cases of 'voluntary
alienations by the husband, but the act, as amended, does not apply to
the case of the descent of property. On the husband's death, his real
estate descends to his heirs equally, the same as if the acts referred to
had never been passed. Turner v. Bennett, 263.
3. Not allowed to defeat sale on partition. A sale of the homestead,
when necessary, in a suit for partition by the heirs, or a grantee of one
of the heirs, is not an alienation within the meaning of any homestead
exemption law prior to that of 1872, and the widow or minor heirs occu-
pying the same can not withhold possession from the purchaser. Ibid
263.
HUSBAND AND WIFE.
Curtesy of husband.
1. In land purchased in wife's name, in pursuance of parol agree-
ment. Where a husband purchased land with his wife's means, taking
728 index.
HUSBAND AND WIFE. Curtesy of husband. Continued.
a simple conveyance to her, in 1854, it was held, that it became the
property of the wife, subject to the rights the marriage conferred upon
the husband, as to his creditors, notwithstanding a parol ante-nuptial
agreement to the contrary, and that his life estate was subject to sale on
execution, unaffected by the act of 1861. Davenport v. Karnes et al. 465.
HYDE PARK, VILLAGE OF.
Powers under charter to abate nuisances. See CONSTITU-
TIONAL LAW, 7, 8.
INCUMBRANCES.
Apportionment thereof on partition. See PARTITION, 4.
INFANTS.
Suit by next friend.
1. A next friend can only claim and pursue the rights of a minor,
and is powerless to yield or cede them to others, and the same is true
of an attorney. Chicago, Bock Island and Pacific Railway Co. v. Ken-
nedy et al. 350.
2. Where a suit is brought by a minor by his next friend, and, by
agreement of the attorneys in the case, it is dismissed, the rights of the
minor are not affected, nor is he thereby estopped from afterwards suing
upon the same cause of action. Ibid. 350.
Laches after majority.
3. A delay of four years after minors have become of age, is not
such laches as to prevent their obtaining relief against a fraudulent sale
of their real estate, made while they were minors, where no rights have
been acquired by other persons, or material change in the property
occurred, after they arrived of age and before suit brought. Ibid. 350.
Laches during minority.
4. Disability of, no excuse for not asserting their rights under execu-
tory contract with their ancestor. An infant heir can not avail himself
of his disability to excuse the non-assertion of his rights under an
executory contract made with his ancestor, when the immediate per-
formance of his part of the contract is essential to the interest of the
other party. Walker et al. v. Douglas et al. 445.
Infant defendants in chancery.
5. Strict proof required, and it must be preserved. See CHAN-
CERY, 29.
INJUNCTIONS.
Whether injunction will lie.
1. To restrain supervisors from providing a suitable jail. In the
absence of any charge of fraud, corruption or dishonesty in a board of
INDEX. 729
INJUNCTIONS. Whether injunction will lie. Continued.
supervisors, in the exercise of the discretion vested in them in respect
to providing a suitable jail for their county, a court has no jurisdiction
to order the issue of an injunction to prevent their action, and therefore
it will be no contempt to disobey such injunction. Andrews v. Board
of Supervisors of Knox County, 65.
2. Belief against judgment. A bill in chancery, to enjoin the col-
lection of a judgment at law, alleged that the summons in the suit,
though returned as served upon the complainant, never was, in fact,
served, that he never appeared in person or by attorney, and had no no-
tice or knowledge whatever of the existence of the suit until the execu-
tion issued thereon was presented ; that the recovery was had upon
goods consigned to complainant, as a commission merchant, for sale on
commission, and that they were destroyed in the great Chicago fire,
without any fault on the part of complainant ; that at the time of the
fire, the plaintiff in the judgment was indebted to the complainant, and
that, since then, there had been no other dealings between them, nor
had the complainant any money or property of the plaintiff in his hands,
except plaintiff's share of insurance money on the goods destroyed, which
was tendered by the bill : Held, that the bill showed a good case for
enjoining the collection of the judgment, it having been rendered with-
out jurisdiction, and being unjust. Weaver v. Boyer et al. 567.
Of the scope of the bill.
3. Whether bill seeks other relief than an injunction. A bill in chan-
cery prayed for an injunction to restrain the collection of a judgment at
law, and the service of an execution which had been issued thereon.
The bill also prayed that the judgment be decreed to be void, and of no
effect. It was held this wras no more than what would have been the
virtual effect of the perpetual injunction which was sought, and the bill
was regarded as really but a bill for an injunction, so that a decree dis-
solving the injunction was considered a final one. Ibid. 567.
Motion to dissolve.
4. Its effect. A motion to dissolve an injunction on the face of the
bill, no answer being filed, operates the same as a demurrer to the bill,
and if sustained, and the complainant is willing to rest his case upon
demurrer, he should move the court to dismiss his bill. Ibid. 567.
5. Sworn answer, though waived, may be used on motion to dissolve.
See CHANCERY, 9.
Assessment of damages on dissolution.
6. Continuance. When an injunction is dissolved, and the defendant
is unable to procure his evidence to prove the damages sustained, the
court would continue the case until he could do so, and if it is not prac-
ticable to have damages assessed at the term when the injunction is
dissolved, he can file his claim, and have them assessed at the next or
some subsequent term. McWilliams et al. v. Morgan, 551.
730 INDEX.
INJUNCTIONS. Continued.
Contempt for disobeying injunction. See CONTEMPT, 1.
On appeal prom order dissolving.
7. Conditions of the bond. See APPEAL BOND, 2.
INJUNCTION BOND.
Recovery thereon.
1. Damages — when and how assessed. Where the condition in an in-
junction bond was, that the obligors should pay or cause to be paid to
the obligee all such costs and damages as should be awarded against
the obligors in case the injunction should be dissolved, it was held, that
the damages must be assessed by the chancellor after the dissolution of
the injunction and before the bill in chancery was disposed of, to author-
ize a recovery on the bond in an action at law. McWilliams et al. v.
Morgan, 551.
2. Where such assessment is not made by the chancellor, damages
can not be assessed in an action at law on the bond, and no recovery
can be had beyond the amount of costs growing out of and connected
with the injunction. Ibid. 551.
INSTRUCTIONS.
Op their requisites.
1. When accuracy and perspicuity required. Where there is a con-
flict of evidence, or where the evidence leaves it doubtful which way the
jury should find, the instructions should not only be accurate, but also
clear and perspicuous. They should aid the jury in arriving at a cor-
rect conclusion, and should not be calculated to mislead or leave them
in doubt as to the law arising upon the evidence. Volk et al. v. Roche,
297.
2. Modification. Where, in the modification of an instruction, the
court but repeats at the end what is said in the body of it, it is not ad-
missible for the party asking the instruction to assign such modification
for error. Northern Line Packet Co. v. Binninger, 571.
3. Considered as a series. In an action by a passenger against a
steamboat company for damages, claimed to have been caused by the
negligence of the company, an instruction that, before the jury can find
the defendants guilty, they must believe, from the evidence, that the de-
fendant was guilty of greater negligence than the plaintiff, when taken
by itself is calculated to mislead the jury. Ibid. 571.
4. But if other instructions are given on the same side, stating clearly
what acts of negligence on the part of the plaintiff will prevent his re-
covery, so that the jury can, from a consideration of the entire series,
obtain a correct apprehension of the law applicable to the case, the
misleading feature of such instruction will be thereby corrected. Ibid.
571.
INDEX. 731
INSTRUCTIONS. Of their requisites. Continued.
5. Should be based upon the evidence. It is not erroneous to refuse an
instruction not applicable to the evidence, though it may contain a cor-
rect legal proposition. Moulding et al. v. Prussing ei al. 151.
6. It is not error to refuse an instruction based upon a state of fact
of which there is no evidence. East v. Crow, 91.
7. Should not be given on a theory not supported by any evidence. In
trover, by the assignee of a chattel mortgage, for the conversion of the
property by a third party, who showed no interest whatever in the same,
it was held error to modify plaintiff's instructions, so as to make the
validity of the mortgage in the hands of the plaintiff depend upon
whether the defendant had, or not, any right in the mortgaged property,
as introducing an element in the case not belonging to it, and therefore
calculated to mislead the jury. Badger v. Batavia Paper Manufactur-
ing Co. et al. 302.
8. Ignoring elements involved. In a case involving the question of
comparative negligence, an instruction which ignores this principle is
properly refused. Chicago and Northwestern Railway Co. v. Clark,
Admx. 276.
9. In a suit upon a note with a condition that the same was subject
to all payments made to the payee, as a partner of the maker, and not
charged upon the books of the firm, where such payments were pleaded,
and also a plea of set-off, an instruction that, if the matters of defense
under the condition in the note are not proved, the jury should find for
the plaintiff, is calculated to mislead, as ignoring the defense and proof
under the plea of set-oft'. Yolk et al. v. Roche, 297.
10. Must not give a construction to witness' testimony. Where the
testimony of a witness is equivocal, and may as well be understood one
way as in another, it is error for the court, in its instructions, to assume
that there is no evidence of a fact which the testimony may tend to
prove. Prairie State Loan and Trust Co. v. JDoig et al. 52.
11. Thus, in an action against the owner of a lot, to recover for an
injury caused by negligence of the workmen engaged in building a
house thereon, where a witness testified that the building was erected
for the owner of the lot, who was sued, an instruction to the jury that
they were not to presume, in the absence of all evidence on that point,
that the building was being put up under a contract with another, was
held erroneous, as assuming what the witness meant in his testimony.
Ibid. 52.
INSURANCE.
Rights of parties on partition.
In respect to money due on policy. See PARTITION, 5.
732 INDEX.
INTEREST.
Upon coupons given for interest.
1. Where a mortgage is given to secure a principal sum and coupons
given for interest thereon, they will draw interest after their maturity,
the same as a note. Harper et al. v. Ely et al. 581.
INTERPLEADER.
When a bill, will lie.
1. The ground of jurisdiction is the apprehension of danger to the
party exhibiting the bill, to himself, from the doubtful and conflicting
claims of the several parties, as between themselves ; and the only de-
cree the plaintiff is entitled to, is, to have liberty to pay the money or
deliver the property to the party entitled thereto, and be thereafter pro-
tected from several claimants. Newhall v. Kastens et al. 156.
2. Such a bill may be filed, though the party holding the disputed
fund has not been sued at law, or has been sued by one, only, of the con-
flicting claimants, or though the claim of one is actionable at law and
the other in equity, and it is thought the principle would be the same
whether the actions are pending in the same or different courts having
concurrent jurisdiction. Ibid. 156.
3. The owner of premises contracted with A to erect thereon a build-
ing, and to furnish all the labor and materials, for a certain price. A
sub-let a portion of the work to B, who never completed his contract, so
that A was compelled to finish it at his own expense, and, after deduct
ing from the amount that would have been due B had he completed his
contract, the payments made to him and what it cost to finish his work,
there remained the sum of $399.52, which both A and B claimed. The
owner filed a bill, in the nature of a bill of interpleader, against A and
B, also making the persons who performed labor and furnished mate-
rials for B parties defendant, who claimed liens, and some of whom had
brought suits : Held, that the owner had a clear right to file the bill
showing these facts, and that it was error to sustain a demurrer to it.
Ibid. 156.
4. Where two parties are each claiming the same fund or property
in the hands of a third person, by different or separate interests, and
such third person does not know to whom it of right belongs, and as to
which he is wholly indifferent as between them, he may exhibit a bill
of interpleader against them. Ibid. 156.
INTOXICATING LIQUORS.
Statute strictly construed.
1. The Liquor Statute of 1872, being of a highly penal character,
providing a right of action unknown to the common law, in which the
party prosecuting has a decided advantage, should, according to the
well understood canon, receive a strict construction. Freese v. Tripp,
INDEX. 733
INTOXICATING LIQUORS. Continued.
Suit by the wife for sale to her husband.
2. Of the measure of damages, and herein, of exemplary damages. In
a suit by a wife for the selling or giving of intoxicating liquor to her
husband, the anguish or pain of mind or the feelings suffered by her
by reason of her husband's intoxication, is not a matter for the consid-
eration of the jury, in assessing damages, but the damages are confined
to her injury in person, property or means of support. Freese v. Tripp,
496.
3. In an action by a wife against one for selling intoxicating liquor
to her husband, no exemplary damages can be given without proof of
actual damages, and an instruction that if the act was not wilful or
wanton, the jury should give exemplary damages, and if it was wilful
or wanton, they should annex more damages, is erroneous. Ibid. 496.
4. As the statute has provided for the punishment of those who sell
or give away intoxicating liquors contrary to its provisions, by indict-
ment, etc., it follows that exemplary or punitive damages can not bo
awarded in a civil suit by one claiming to be injured by the offense.
Ibid. 496.
5. Exemplary damages — when allowable, defendant has a right to shoio
matters in mitigation. If the court instructs the jury that the plaintiff
is entitled to recover exemplary damages, in a suit against one for the
sale of liquor to her husband, the defendant should have the right to
show matters in mitigation, such as that he had forbidden his clerk to
sell to the husband, and to have that fact considered by the jury, on the
question of exemplary damages only. Ibid. 496.
JAILS.
Power of board of supervisors over. See INJUNCTION, 1 ; BOARD
OF SUPERVISORS, 1.
JOURNALS OF LEGISLATURE.
As evidence. See EVIDENCE, 36, 37
JUDGMENTS.
By confession under warrant of attorney.
1. Jurisdiction. Where a declaration, the warrant of attorney, and
affidavit of its execution, the note and cognovit by the attorney author-
ized, are filed, the defendant is before the court, and there is enough to
set the court in motion to hear and determine. Bush v. Hanson, 480.
2. If, in such case, the court proceeds, and, in rendering judgment,
acts without sufficient evidence, without the oral testimony required by
the 2d section of the act of 24th of February, 1859, concerning confes-
sions of judgment, having been produced, a case will be presented, not
of want of jurisdiction, but one only of error in the exercise of jurisdic-
tion. Ibid. 480.
INDEX.
JUDGMENTS.
By confession under warrant op attorney. Continued.
3. The production of the evidence required by that act to authorize
the judgment is not a jurisdictional fact, where the court has before
acquired the right to proceed to hear testimony and determine the case.
Bush v. Hanson, 480.
4. Cognovit — warrant of attorney to confess judgment. A warrant of
attorney to confess judgment, is a familiar common law security, and
the entry of judgment by cognovit thereunder is a proceeding according
to the course of the common law, which courts have ever entertained,
in the ordinary exercise of their authority as courts of general j urisdic-
tion. Ibid. 480.
5. Presumption in favor of. And the fact that the statute has regu-
lated the mode of procedure, does not convert the proceeding into one
of such a special statutory character, that the same presumptions do
not obtain as in the case of ordinary judgments of superior courts of
general jurisdiction. Ibid. 480.
6. Cures defects in declaration. Although, by the declaration, the
action may appear to be prematurely brought, a confession of judg-
ment will cure the defect. Ibid. 480.
Entry of judgment — presumption.
7. In a suit by a purchaser of land, against a party examining the
title for pay, for neglecting to show the fact of a judgment, and sale of
the land, the latter contended that no recovery could be had, as it was
not shown the judgment and sale were entered of record: Held, in the
absence of proof to the contrary, it would be presumed the officers of
the court did their duty, and promptly made a record of the judgment
and sale. Chase et at. v. Heaney, 268.
Binding effect as to privies.
8. A person holding a covenant running with the land, when sued for
the title or upon his covenant, may give notice to a prior grantor, in
the chain of title, to sustain the same, and on his failure to do so, the
judgment may be read in evidence, against him, to show the recovery,
and the amount the last covenantor had to pay ; but the remote cove-
nantor may show that the recovery was not a breach of his covenant,
and his undertaking or liability must be shown otherwise than by the
judgment. Chicago and Northwestern Railroad Co. v. Northern Line
Packet Co. 217.
9. Notice of pendency of suit, when conclusive and to what extent. If
one carrier is sued for the loss of goods, and notifies a second carrier, to
whom he delivered the same for transportation, of the pendency of the
suit, and requires him to defend, the judgment against the first is not
conclusive as to the question of the liability of the second. It is only
conclusive on such privies as are liable over, and then only as to the fact
that the judgment was recovered, and that it was for the value of the
INDEX. 735
JUDGMENTS. Binding effect as to privies. Continued.
goods lost; but the judgment is not so far conclusive of the question
of privity, as to fix the liability of the person served with notice.
Chicago and Northwestern Railroad Co. v. Northern Line Packet Co.
217.
Judgment in Supreme Court.
10. Power of review after the term. The Supreme Court has no
power to review its own judgments, except upon a petition for a re-
hearing, presented in accordance with the rules established for that
purpose. Reed v. West et al. 479.
11. Effect of reversal on sale. See REVERSAL, 1; PURCHAS-
ERS, 2.
Conclusive effect as an estoppel. See FORMER ADJUDICA-
TION, 1, 2, 3.
Judgment against two without evidence as to one. See NEW
TRIALS, 4.
Judgments in other States. See FOREIGN JUDGMENTS, 1, 2.
Relief in equity against judgment. See INJUNCTIONS, 2.
Judgment lien. See LIENS, 1.
JUDICIAL NOTICE. See EVIDENCE, 1, 2,
JUDICIAL SALES.
Certificate of purchase.
1. Of its effect in passing title. A certificate of purchase at sheriff's
sale of land passes no title to the purchaser, and will not disturb the
possession of the defendant in execution until after the time of redemp-
tion has expired, and his title is transferred by the sheriff's deed. Hays
v. Cassell, 669.
2. A certificate of the purchase of land under execution, confers on
the holder no title or interest in the land, especially when the time for
redemption has not expired. Huftalin v. Misner, 55.
Setting aside, after reversal.
3. Where the judgment under which a sale of land is made is
reversed, the sale may be set aside, on motion, after the expiration of
twelve months, when no deed has been taken out and the judgment
debtor is still in possession. Hays v. Cassell, 669.
Notice of motion to set aside.
4. When a motion is made to set aside a sale of land on execution,
before a sheriff's deed is made, it is sufficient to give notice thereof to
the plaintiff in execution, who is the purchaser. The defendant is not
required to serve such notice on an assign ee of the certificate of pur-
chase. Ibid. 669.
736 INDEX.
JUDICIAL SALES. Continued.
Irregularities — in what manner questioned.
5. Can not be attacked collaterally. If the court has jurisdiction to
order the sale of land in a proceeding for partition, even though it pro-
ceeds irregularly in some matters, the decree and sale under it can not
be assailed in a collateral proceeding. Nichols v. Mitchell, 258.
JURISDICTION".
Defined — generally.
1. The power to hear and determine a case, is jurisdiction; it is
coram judice whenever a case is presented which brings this power into
action. Bush v. Hanson, 480.
Of the county court — presumption.
2. The county court, though of limited jurisdiction, is not, strictly
speaking, one of inferior jurisdiction, and, when acting within the
sphere of its jurisdiction, as liberal intendments will be indulged in
favor of its judgments and decrees as those of the circuit court. Bar-
nett v. Wolf, 76.
In case of writ of error.
3. Does not take away the jurisdiction of the inferior court. The
allowance of a writ of error in a capital case does not deprive the
lower court of its jurisdiction, but only stays its authority to act or
proceed until the determination of the writ of error. Perteet v. The
People, 171.
On reversal of judgment.
4. Filing remittitur or remanding order not necessary to jurisdiction.
The filing of a remittitur or remanding order of this court in the lower
court, upon reversal, is not necessary to the jurisdiction of the latter
court to proceed with the cause. The omission to file a remanding
order is simply an irregularity, that may be waived. Ibid. 171.
5. Where a judgment convicting one of murder was reversed, and
the defendant appeared in the court in which the conviction was had,
and read the opinion of this court, and, after the cause was redocketed,
asked for and obtained a change of venue, it was held, that he could not
afterwards object to the action of the court on the ground that no
remanding order had been filed. Ibid. 171.
Jurisdiction of the person.
6. May be acquired by appearance, without service. Where a husband
and wife employed an attorney, and authorized him to bring an eject-
ment suit for the recovery of their land, and a bill in chancery was filed,
and an injunction granted, staying the prosecution of such suit, and the
attorney filed an answer, for the husband and wife, to such bill, the
court thereby acquired jurisdiction of their persons, for the purposes of
such injunction suit, although no summons or return may appear in the
record. Kelly et al. v. Donlin et al. 378.
INDEX. 737
JURISDICTION. Jurisdiction of the person. Continued.
7. Finding in respect to, can not be contradicted by parol in a collat-
eral proceeding. Where a court finds, in its decree, that legal and proper
notice has been given, this can not be contradicted in a collateral pro-
ceeding by evidence dehors the record. Barnett v. Wolf, 76.
8. Finding as to personal service — how impeached. Where personal
service is claimed, which can only be shown by the officer's return, if
the return contradicts the finding of the court, it will overcome the pre-
sumption arising from the finding, and prove a want of jurisdiction,
even in a collateral proceeding. Ibid. 76.
9. Sufficiency of evidence to disprove finding in respect to. As the
statute has not made the publisher's certificate the only evidence of the
due publication of notice, the fact that such certificate, filed in a case,
and a part of the record, is wholly insufficient to prove a proper publi-
cation, will not overcome the finding of the court that legal notice was
given. Ibid. 76.
Op justices op the peace.
10. How jurisdiction acquired and how ascertained. See JUSTICES
OF THE PEACE, 1 to 4.
In partition.
11. Proper service necessary. See PARTITION", 1.
On confession op judgment.
12. Of the jurisdiction. See JUDGMENTS, 1 to 5.
Denial of jurisdiction.
13. In suit on foreign judgment. See FOREIGN JUDGMENTS, 2.
14. Replication to plea denying jurisdiction. See PLEADING, 7.
JUSTICES OF THE PEACE.
Jurisdiction.
1. Must be determined from the evidence. On appeal, the jurisdiction
of a justice of the peace is not determined from the process issued by
him or the amount indorsed on the summons, but by the evidence heard
upon the trial of the appeal. Happel et al. v. Brethauer, 166.
2. Strict formality not required. While it is true, that a justice's
court is an inferior one, and one of limited jurisdiction, and in order to
render the judgments of such courts valid, it must appear that they had
jurisdiction both of the subject matter and of the person, yet the policy
of our laws forbids that the proceedings and judgment of these courts
should be defeated by technicalities ; therefore, formalities in the sum-
mons or rendition of judgment are not required. Bliss v. Harris et al.
343.
3. Conferred by appearance. If a defendant appears before a justice
of the peace, and voluntarily submits himself to the jurisdiction of the
court, without a summons, there is no reason why the justice should
47— 70th III.
738 INDEX.
JUSTICES OF THE PEACE. Jurisdiction. Continued.
not proceed in the same manner as if the defendant had appeared in
obedience to a summons duly issued and served. Bliss v. Harris et ah
343.
4. Where a defendant was brought before a justice of the peace, on a
capias, it not appearing that an affidavit was filed sufficient to authorize
the issuing of the writ, and made no objection to the manner in which
he was brought into court, but voluntarily confessed that he was in-
debted to the plaintiff in the sum demanded, and that the same was due
and unpaid: Held, that such appearance invested the justice with
jurisdiction to render judgment against him for the amount claimed.
Ibid. 343.
LACHES.
AS AFFECTING RIGHT TO RELIEF IN EQUITY. See CHANCERY, 18,
19, 20.
Whether imputable to Infants. See INFANTS, 3, 4.
LANDLORD AND TENANT.
Eviction by the landlord.
1. Its effect as to him in an action for breach of covenant on the lease,
against his tenant. Where an article of agreement, in the reciting part,
referred to land described in a lease from one Ledyard to the parties of
the first part, and recited that the parties of the first part were desirous
to lease to the party of the second part the right of mining for and ex-
cavating coal on said premises, etc. ; and in the operative part of said
agreement the demise was of the farming lands described and men-
tioned in said lease from Ledyard, together with the right to mine, dig,
extract and carry away coal from the said premises described in Led-
yard's lease, together with the enjoyment and occupation of so much of the
surface of said lands as might be necessary to carry on the mining for
coal on said premises : Held, that the right to the farming land was as
definite and certain as the right to mine for coal, and that if the grantor
in said agreement prevented the grantee from using the farming land,
it would amount to an eviction, and in an action by the grantor against
the grantee for a breach of the covenants in such agreement, a plea set-
ting up that the grantor had prevented the grantee from using such
farming lands was a good plea, and it was error to sustain a demurrer
to it. Walker et ah v. Tucker et ah 527.
Forfeiture for non-payment of rent.
2. At common law, in order to justify the landlord in declaring a
forfeiture of the lease, for the non-payment of rent, a demand of the
rent was necessary on the day it became due ; but the statute of this
State has changed the rule, and a demand may be made any time there-
after. Burt v. French, 254.
INDEX. 739
LANDLORD AND TENANT. Continued.
Trespass, by tenant foe, eviction by landlord.
3. Measure of damages. See MEASURE OF DAMAGES, 13.
Landlord's lien.
4. On property other than crops, lost by a sale. See LIENS, 2, 3.
LEASE.
Construction of lease. See LANDLORD AND TENANT,1 ; CON-
TRACTS, 6.
Forfeiture of lease.
When lessee entitled to notice. See FORFEITURE, 4.
LEGISLATIVE GRANT.
How construed. See GRANT, 1, 2.
LEX LOCI.
By what law contract to be governed.
1. Where a resident of this State made a parol ante-nuptial agree-
ment, in 1848, in the State of Pennsylvania, where he was married, and
immediately removed to this State, where the contract was to be per-
formed: Held, that the law of this State governed, as to its effect and
validity, and not that of the State where it was made. Davenport v.
Kovrnes et al. 465.
LICENSE.
AS BETWEEN TENANTS IN COMMON.
In respect to acts injurious to the property. See TENANTS IN
COMMON, 1.
Plea of license.
Proof in respect thereto. See PLEADING AND EVIDENCE, 3.
LIENS.
Judgment lien.
1. Not affected by acts of debtor. Where two judgments were recov-
ered against a party at the same term of court, which became liens
upon his life estate in land, and a levy and sale of the same was made
under an execution issued upon one of the judgments, after which the
debtor conveyed his interest to a brother, who redeemed from the sale
within twelve months : Held, that, by the redemption, the sale became
null and void, and the premises were liable to the lien of the other
judgment which could not be avoided by the act of the judgment debtor
conveying his equity of redemption. Davenport v. Karnes et al. 465.
Landlord's lien.
2. On property other than crops, lost by sale and removal from de-
mised premises. The lien of a landlord on the property of his tenant,
740 INDEX.
LIENS. Landlord's lien. Continued.
other than on crops, is superior to all junior liens, so long as it remains
on the premises occupied by the tenant, but can not prevail over prior
liens, or over the rights of bona fide purchasers, after the property has
been removed. Hadden et al. v. Knickerbocker et al. 677.
3. The rights of a purchaser of personal property from a tenant,
after its removal from the demised premises, for a valuable considera-
tion, as, in payment of a pre-existing debt, is not affected by the fact
that he knew there was rent due the landlord, and that he was about to
distrain for the same. Ibid. 677.
Mechanic's lien.
4. In favor of one employed by sub-contractor. The mechanic or
workman performing labor, or party furnishing materials, for a sub-
contractor, is not entitled, under the statute, to any lien. The lien given
does not extend further than to the sub-contractor. Newhall v. Kastens
et al. 156.
5. In equity or bill of interpleader. But where a court of equity
acquires jurisdiction of the fund due a sub-contractor, on a bill of inter-
pleader, in which the persons performing labor or furnishing materials
for the sub-coD tractor are made parties, it is the duty of the court to
adjust the equities of all parties interested in the fund, as they have an
equitable claim on the fund. Ibid. 156.
6. When interpleader lies. See INTERPLEADER.
7. Decree as to time for payment. Since the act of 1872, allowing
redemption from sales in mechanic's lien cases, it is no longer necessary
that the decree for the sale of the premises should give time in which
the defendant shall pay the sum found to be due. Freibroth v. Mann,
523.
LIMITATIONS.
Limitation act of 1839.
1. Where land is sold under a deed of trust, and the grantee and
those succeeding to his claim and color of title pay all taxes thereon
for seven successive years, while the land is vacant and unoccupied, and
then take possession, this will present a complete bar to an action of
ejectment by the grantor in the trust deed, under the Limitation Act of
1839. Wilson v. South Park Commissioners, 46.
2. What constitutes color of title. A claim of title under a regular
chain of conveyances, commencing with an administrator's deed, which
was invalid, and extending through a series of years, when it appears
that valuable considerations have been paid for the various conveyances,
and the parties to such conveyances have, during all the time, dealt
with the land as their own, constitutes claim and color of title made in
good faith, and, coupled with possession and payment of taxes for seven
INDEX. 741
LIMITATIONS. Limitation act of 1839. Continued.
consecutive years, forms a bar to a suit for the recovery of the land,
under the Limitation Act of 1839. Kelly et al. v. Donlin et al. 378.
3. What will avoid the operation. If the owner of the paramount
title to land is enjoined, at the suit of one in possession, from setting up
or insisting upon any title or interest in the land, such injunction will
afford sufficient equitable ground for not allowing the running of the
statute to ripen into a bar of the owner's right, whilst such injunction
was in force. Ibid. 378.
4. When the statute begins to run. When a person takes possession
of land through a tenant, after receiving a sheriff's deed, which is color
of title, the limitation under the eighth section of the Conveyance Act
of 1845 will commence running at the date of his first payment of taxes
thereafter, and the bar will be complete upon payment of all taxes for
seven successive years and possession. Kane v. Footh, 587.
5. Possession — how shown. Possession of land under the limitation
laws may be shown in different modes. It may be by inclosure, by
cultivation, by the erection of buildings or other improvements, or by
any visible, open use clearly indicating its appropriation and actual use
by the person claiming to own it. Ibid. 587.
Of claims against estates. See ADMINISTRATION OF ESTATES, 4.
LOCAL STATUTES.
What is a local law. See STATUTES, 7.
Local laws as to courts.
Abrogated by constitution of 1870. See COURTS, 5.
MALICIOUS PROSECUTION.
Of the necessary elements.
1. The one most important element is, want of probable cause.
Malice is unimportant, if there be probable cause. Malice and want of
probable cause must both be present. The gist of the action is, that the
prosecutor, or party suing out the writ, acted maliciously, and without
probable cause. If there is no malice, or if there be, and there was
probable cause, the action will not lie. Barrett et al. v. Spaids, 408.
Pkobable cause.
2. What constitutes. A reasonable ground of suspicion, supported
hy circumstances sufficiently strong in themselves to warrant a cautious
man in the belief that the person accused is guilty of the offense
charged, constitutes probable cause. Barrett et al. v. Spaids, 408 ;
Palmer v. Richardson, 544.
3. Where the plaintiff had been, for several years prior to January,
1869, engaged in an extensive mercantile business, and had received
742 INDEX.
MALICIOUS PROSECUTION. Probable cause. Continued.
large shipments of goods during the latter part of December, 1868, and
up to January 2d, 1869, through the defendants, as common carriers, on
which he failed to pay the freight, and had received, through the hands
of the defendants, as common carriers, packages containing very con-
siderable sums of money, being the returns from goods shipped by him
to his customers, and had given checks to defendants for freight at sev-
eral different times, all of which were dishonored at the bank on which
they were drawn, for the reason that he had no funds there to pay them ;
and, on the second or third day of January, when the defendants de-
manded payment of their bills for freight, told them he had no money,
and that since the first day of January he had been doing business as
agent : Held, that these facts constitute probable cause for swearing
that the plaintiff had, within two years, fraudulently conveyed or
assigned his property and effects, so as to hinder and delay his creditors,
and to cause an attachment on that ground to be issued against his
property. Barrett et al. v. Spaids, 408.
4. Where a party is arrested on a charge of larceny, and the circum-
stances are such as to cause a reasonable suspicion of his guilt, a ver-
dict, finding the prosecution to be malicious, will be set aside. Palmer
v. Ricliardson, 544.
Acting upon advice of counsel.
5. If a party, before commencing a criminal prosecution, makes a
full and fair statement of the facts of the case to his legal adviser, with
an honest view to learn if they will warrant the prosecution, and is
advised by his attorney that they will, this will go far to show probable
cause, and that he acted without malice. Ibid. 544.
6. In an action for malicious prosecution in respect to the suing out
of an attachment against the plaintiff's property, it seems, if the defend-
ant acted upon the advice of competent counsel, and in good faith, in
suing out the writ, he will be relieved from liability to respond in dam-
ages, for want of probable cause, for his action in the premises, the same
as in a case where the prosecution was on a criminal charge. Barrett
et al. v. Spaids, 408.
Burden of proof.
7. In an action for malicious prosecution for causing the plaintiff's
arrest, the burden of proof is upon him to show clearly, by a prepon-
derance of evidence, that the defendant did not have probable cause to
institute the criminal prosecution against him. Palmer v. Pichardsony
544.
MANDAMUS.
When the writ will lie.
1. Only in case of a clear right. A writ of mandamus will be
awarded only in a case where the party applying for it shows a clear
INDEX. 743
MANDAMUS. When the writ will lie. Continued.
right to have the thing sought by it done, and by the person or body
sought to be coerced. The People ex rel. v. Glann, 232.
Op the petition.
2. The petition for a mandamus must show on its face a clear right
to the relief demanded, and it must distinctly set forth all the material
facts on which the relator relies, so that the same may be admitted or
traversed. Ibid. 232.
Practice under act of 1872.
3. Under the Practice Act of 1872, the petition, in the case of a
mandamus, takes the place of the alternative writ, becomes the founda-
tion of all subsequent proceedings, and must, consequently, be gov-
erned by the same rules of pleading as are applicable to declarations in
other cases at law. Ibid. 232.
MARRIAGE.
What constitutes a marriage.
1. And evidence thereof. The cohabitation of two persons of differ-
ent sexes, and their behavior, in other respects, as husband and wife,
always afford an inference, of greater or less strength, that a marriage
has been solemnized between them ; yet such inference is destroyed by
evidence that no marriage, in fact, ever was solemnized. Port v. Port
et al. 484.
2. Where the statute does not prohibit or declare void a marriage
not solemnized in accordance with its provisions, a marriage without
observing the statutory regulations, if made according to the common
law, will still be valid. Ibid. 484.
3. By the common law, if the contract is made per verba de presently
it is sufficient evidence of a marriage. If it be made per verba defuturo
cum copula, the copula is presumed to have been allowed on the faith
of the marriage promise, and that the parties, at the time of the copula,
accepted of each other as husband and wife; but this is only a rule
of evidence, and it is always competent, in such cases, to show that the
fact was otherwise. Ibid. 484.
4. If the woman, in surrendering her person, is conscious that she
is committing an act of fornication, instead of consummating her mar-
riage, the copula can not be connected with any previous promise, and
marriage is not thereby constituted. Ibid. 484.
MARRIED WOMEN.
Op their separate property.
1. Trespasser can not question her right to land acquired through her
husband. Where a husband conveys real estate to a third party, and
such party, on the same clay, conveys to the wife of his grantor, what-
ever may be the rule as to others having rights against the land, it will
744
INDEX.
MARRIED WOMEN". Of their separate property. Continued.
be treated as the separate property of the wife as against a mere tres-
passer, and he will not be allowed to question her right to sue for the
trespass without her husband. Huftalin v. Misner, 55.
Conveyances by married women.
2. May be proved. See CONVEYANCES, 1.
MAYOR'S BILL, OF CHICAGO.
Op its constitutionality. See STATUTES, 1.
MEASURE OF DAMAGES.
In actions ex contractu.
1. In action by purchaser against vendor for failure to deliver.
Where the vendor of hogs fails to deliver the same at the time and
place agreed upon, the measure of the purchaser's damages will be the
difference between the contract price and the fair market value at the
time and place fixed for delivery. Kitzinger v. Sanborn et al. 146.
2. Where a seller sues for the breach of a contract to purchase, and
retains the title to the property, the measure of damages is the differ-
ence between the value of the property at the time fixed for delivery,
and the contract price. Burnham v. Roberts, 19.
3. On partial performance. Where a party was employed to do the
whole work in the building of a house, at a given price, to be paid for
in installments, on an architect's certificate, and the contractor aban-
doned the work for good cause, and, in a suit to recover for the work
done and materials furnished, the court instructed the jury that the
plaintiff' was entitled to recover their reasonable worth : Held, that as
the contract itself furnished no rule to determine the value of any spe-
cific portion of the work, the instruction was not erroneous, nor in vio-
lation of the principle that the special contract affords the rule of
damages, so far as it can be traced and followed. Lincoln v. Schwartz
et al. 134.
4. In action for delay in erecting building. Where there is unrea-
sonable delay by the builder in the performance of a contract to build
a house, the owner will be entitled to damages equal to the rental value
of the premises during the period of delay. Korf v. Lull, 420.
5. Failure to employ one for service. The defendant entered into a
contract with the plaintiff to employ him, at a specified rate per month,
for a definite length of time. The plaintiff entered upon the employ-
ment, but before the expiration of the time, the defendant discharged
him. The plaintiff thereupon sued, claiming pay, at the rate fixed by
the contract, for the length of time he had served : Held, it was not
error to exclude evidence offered by the defendant as to the value of
plaintiff's services. Mahon et al. v. Daly, 653.
INDEX. 745
MEASURE OF DAMAGES. In actions ex contractu. Continued.
6. If, however, the plaintiff had gone upon the indebitatus count, on
the theory that the contract had been rescinded, he would have been con-
fined, in his recovery, to the quantum meruit, and the evidence as to the
value of the services, offered by the defendant, would have been compe-
tent. Mahon et al. v. Daly, 653.
7. For omission in abstract of title. "Where a party was employed
to examine the records and make an abstract of the title to real estate,
and he omitted to note the fact of a judgment and sale of the land for
taxes, of which the purchaser was ignorant until the time for redeem-
ing had expired, whereby he was caused to pay out money to remove
the cloud upon his title, it was held, that the party making the abstract
was liable in damages to the purchaser for the sum so paid by him to
remove the cloud. Chase et al. v. Heaney, 268.
8. In action on appeal bond. "Where the condition of an appeal
bond, given on appeal from an order dissolving an injunction restrain-
ing the use, etc., of certain real estate, does not so provide, the rental
value of the premises pending the appeal can not be recovered in an
action on the bond. McWilliams et al. v. Morgan, Jr., 62.
9. If the condition of the bond had been to pay all damages, without
restricting them to those for which judgment is rendered, or may be
rendered, it might be shown that the rents were fairly within the mean-
ing of the language used, and they might be recovered in a suit on the
bond. Ibid. 62.
In actions ex delicto.
10. In tresp>ass quare clausum f regit. The gist of this action is, the
injury done to the possession, and if the trespass amounts to an ouster
of the plaintiff, he can, in an action brought before re-entry, recover
damages only for the trespass itself, or first entry. Smith et al. v. Wun-
derlich et al. 426.
11. Action by disseizee — mesne profits. A disseizee may maintain
trespass against the disseizor for the disseizin itself, because he was
then in possession, but not for an injury after the disseizin, until he
gains possession by re-entry, and then he can have his action for an
intermediate damage. Ibid. 426.
12. But, if the disseizee gains possession by re-entry after the disseizin
and before suit, he may recover damages for the mesne profits as well as
for the first entry. Ibid. 426.
13. "Where a tenant is ousted by his landlord before the expiration
of his term, and, without any re-entry, he brings an action of trespass,
he can recover damages for the ouster itself, and all the necessary and
natural consequences thereof, but not for the value of his unexpired
term, or for the mesne profits thereof. Ibid. 426.
746 INDEX.
MEASURE OF DAMAGES. Continued.
EXEMPLAltY DAMAGES.
14. Tenant refusing to give possession to purchaser — removal of goods
of tenant. Where a tenant, in possession of premises, agreed with his
landlord to surrender the same immediately in case of a sale, and a
party, on the faith of such assurance, bought the same for the purpose
of erecting a warehouse thereon, and contracted for the building of the
same, and the party in possession gave possession of a part of the lot
upon which to commence excavating the earth, and promised to go out
of the building in a few days, so as not to delay the work, but afterwards
repudiated his agreement, and refused to leave, and the workmen
removed his goods and demolished the house, so as to proceed with
their work : Held, in an action by the tenant against the purchaser,
that his was not a case for exemplary damages, if the tenant was not
estopped from claiming any. Farwell v. Warren, 28.
15. In an action of trespass to real estate. If the circumstances of
aggravation render it impossible to apply any fixed rule of law, the
jury may give exemplary damages, to be graduated with reference to
the motives which actuated the defendant, and the manner in which the
act complained of was committed. Smith et al. v. Wunderlich et al.
426.
16. The pecuniary condition of the defendant may be considered, not
for the purpose of showing how much he is able to pay, but that the
jury may determine how much his rank and influence in society, and
the extent of the injury, are increased thereby, and it is error to instruct
a jury that, in fixing the amount of exemplary damages, they may take
into consideration the pecuniary ability of the defendant to pay. Ibid.
426.
Mitigation of damages.
17. In an action of trespass. To entitle the defendant to give in
evidence, in mitigation of damages, a provocation, it must have been
so recent and immediate as to induce a presumption that the violence
done was committed under the immediate influence of the feelings of
passion excited by it. Huftalin v. Misner, 55.
18. The rule in respect to the proof of provocation, in an action for
shooting into the plaintiffs house, is the same as in an action for an assault
and battery. The general rule is, that the defendant can not give in
evidence, in mitigation of damages, the acts and declarations of the
plaintiff at a different time, or any antecedent acts which are not fairly
to be considered as part of the same transaction, however insulting
and provoking they may have been. Ibid. 55.
19. In an action of trespass for shooting into a dwelling house in
the night time, the defendant can not prove, in mitigation of exemplary
damages, the kidnapping and seduction of his daughter by the plaintiff
and her husband, done nearly one year before, and subsequent attempts,
by the plaintiff's husband, to kidnap the daughter, his attempting to
INDEX. 747
MEASURE OF DAMAGES. Mitigation of damages. Continued.
hire persons to assassinate the defendant, and to poison his well, and
the writing of insulting letters to the defendant's wife, the husband's
acts not being admissible against the wife. Huftalin v. Misner, 55.
On sale of intoxicating liquor to husband.
20. In an action by the wife. See INTOXICATING LIQUORS,
2 to 5.
On condemnation for right of way. See RIGHT OF WAY, 1 to 9.
MECHANIC'S LIEN. See LIENS, 4 to 7.
MISTAKE.
In description of land in a deed.
1. This was a bill in equity, to reform a deed of land, for mistake in
the description. The court reviews the facts and circumstances, from
which it finds that there was a mistake. Kellogg v. Hastings, 598.
2. Where a certain tract of land is, in fact, sold and purchased, and
is so eonvej^ed, the deed can not be reformed, so as to make it convey a
different piece, on the mere fact that the grantor, at the time, owned the
latter and not the former tract. Ibid. 598.
MORTGAGES AND DEEDS OF TRUST.
What constitutes a mortgage.
1. Where a deed, though absolute in form, is intended as a security
for money, it will be treated as a mortgage, or where the money of one
purchases land and it is conveyed to another, a trust results in favor of
the one whose money paid for the land. Klock et al. v. Walter, 416.
2. Where land was advertised for sale under a senior mortgage, and
by an arrangement between the owner, the junior mortgagee and a third
party, the latter bid the land off for Hie amount of both mortgages, and
paid the amount due on the first mortgage with money furnished by the
junior mortgagee, with the understanding that the owner might have
further time in which to sell the land and pay off the amount due on
both mortgages, with interest thereon: Held, that the transaction
amounted to a mortgage, and that upon payment of the amount due on
the two mortgages, with interest, the owner was entitled to a conveyance.
Ibid. 416.
Election to treat deed as absolute.
3. If a party makes an absolute conveyance of land as a security for
the payment of money, he may abandon the payment of the debt, and
cancel the secret agreement, and treat his conveyance as absolute, in-
stead of a mortgage, and he will be bound by such election. Carpenter
v. Carpenter, 457.
748 INDEX.
MORTGAGES AND DEEDS OF TRUST. Continued.
Mortgagee in possession.
4. When mortgagee is rightfully in possession. Where a sale is had
under a deed of trust and the premises are purchased by the holder of
the debt for default in payment, and the debtor causes the sale to be set
aside, in equity, for an irregularity and fraud in the same, the purchaser
will be regarded as a mortgagee in possession for condition broken, and
not as a trespasser. Harper et al. v. Ely et al. 581.
5. Where a mortgagee is in possession for condition broken, he will
have the right to keep the same until his debt is fully paid. Ibid. 581.
PRIOR AND JUNIOR LIENS.
6. As between mortgagee of tenant in common and his co-tenant.
Where a tenant in common, with the consent of his co-tenant, improves
the estate before the execution of a mortgage by the latter, one-half the
outlay will be a prior lien to that of the mortgage, and will be first paid
out of the proceeds of the sale under the mortgage. Stenger v. Edwards,
631.
When the whole debt matures.
7. For non-payment of interest. If a mortgage or deed of trust pro-
vides that the whole debt shall become due and payable on default in
the payment of the interest on the notes secured, the same may be fore-
closed as to the whole debt upon default in paying interest. Terry et al.
v. Trustees of Eureka College, 23.6.
Sale under power in mortgage.
8. When made by attorney of mortgagee. When a sale under a mort-
gage is conducted by the attorney of the mortgagee, in his absence, and
the mortgagee, in whom the legal title as well as power of sale, coupled
with an interest, is vested by the mortgage, subsequently ratifies the
sale by making the necessary deed for the property, the mere fact that
the sale is conducted by the attorney in the absence of the mortgagee
will not render the title derived therefrom absolutely void. Munn et al.
v. Surges et al. 604.
9. The mortgagee may convey to the purchaser in his own name, when
the mortgage expressly authorizes him to do so. Ibid. 604.
10. Who may purchase. When the mortgagee, in a mortgage author-
izing a sale and conveyance by him, makes such sale in compliance
with the terms of the mortgage, and conveys the premises to the purchaser
in good faith, and without any previous arrangement between him and
such purchaser for a reconveyance, his duties as trustee, in regard to the
mortgaged property, are ended, and he is at liberty to deal with the
purchaser in relation to the property in good faith, the same as if such
purchaser had derived title through some other source. Ibid. 604.
11. Sale by mortgagee to another for his own benefit, not void but only
voidable. See PURCHASER, 3.
INDEX. 749
MORTGAGES AND DEEDS OF TRUST.
Sale under power in mortgage. Continued.
12. Presumption as to fairness of sale. See TRUSTS AND TRUS-
TEES, 4, 5.
Satisfaction op mortgage.
13. What constitutes — as to subsequent purchaser. See PURCHA-
SERS, 4.
On bill to redeem.
14. Payment for taxes and insurance on redemption. Where, by the
terms of a mortgage, the mortgagor is required to pay the taxes as they
become due and keep the property insured, and the mortgagee takes
possession for default, he will have the right to keep the premises in-
sured and make the rents pay for the cost of the same and the taxes.
Harper et al. v. Ely et al. 581.
15. Bule for charging mortgagee in possession with rents on bill to
redeem. On bill to redeem from a mortgage, where the mortgagee has
been in possession, the latter will be charged with the rents actually
received, and what could have been received by reasonable care and
diligence. Ibid. 581.
16. Allowing prior incumbrances discharged to mortgagee on bill to
redeem. A mortgagee, on bill to redeem, will be allowed all sums ad-
vanced by him to remove prior incumbrances, and if the prior incum-
brance bore ten per cent interest as well as the mortgage debt, the
mortgagee will be subrogated to the rights of the prior lien creditor,
and may be allowed the same rate of interest. Ibid. 581.
17. Whether mortgagee in possession is entitled to commissions for
rents collected. On bill to redeem from a mortgage, where the mortgagee
is in possession, the mortgagee will not be allowed commissions for
collecting rents and looking after the property. It will be enough if he
is allowed what he pays out for collecting the rents. Ibid. 581.
18. Costs on bill to redeem. It is a well settled rule that, on a bill to
redeem from a mortgage after condition broken, the complainant should
pay the costs. Ibid. 581.
Deeds op trust.
19. Effect of sale before default. Where a deed of trust confers upon
the trustee power to sell, upon default in payment of the debt thereby
secured, a sale made without such default to one who has, or who is
chargeable with notice that there has been no default, can not confer
anything beyond the legal title in trust for the benefit of the grantor in
the trust deed, or, if he be dead, of his heirs. Chicago, Bock Island
and Pacific Railroad Co. v. Kennedy et al. 350.
20. Sale before default is voidable. Under a deed of trust, with power
of sale upon default in payment of the debt thereby secured, the power
of sale does not become operative until there is such default, and a sale,
750 INDEX.
MORTGAGES AND DEEDS OF TRUST. Deeds of trust. Continued.
made after the debt has been paid, is voidable as against a purchaser
with notice, or the grantee of such purchaser with like notice. Chicago,
Mock Island and Pacific Railroad Co. v. Kennedy et al. 350.
21. Who may become purchasers. When a party executes a deed of
trust to secure the payment of money, and dies, leaving children, some
of whom are adults and some minors, and the property is sold under
the deed of trust in default of payment of the debt thereby secured,
there is no reason why the adult heirs may not purchase the same at
such sale, and acquire title thereby, unless prevented by occupying a
fiduciary relation to the other heirs. Ibid. 350.
22. Conveyance by trustee passes legal title without regard to notice
of sale. A conveyance of land by a trustee, with, or even without
notice, as required in the deed of trust, will pass the legal title to his
grantee, and, until a redemption is had, he will hold it, and may set it
up in defense of an action of ejectment. Wilson v. South Park Com-
missioners, 46.
23. Innocent purchaser may rely on recitals in trustee's deed as to
notice of sale. Where land sold by a trustee under a deed of trust has
passed into the hands of an innocent purchaser, and the trustee's deed
recites a compliance with all the requirements of the trust deed, as to
the giving of notice, etc., such purchaser is not bound to go behind the
deed to learn whether its recitals are true or not. The remote purchaser,
to be affected, must be chargeable with notice of a defect in the execu-
tion of the power. Ibid. 46.
24. Redemption from deed of trust — what constitutes. See RE-
DEMPTION, 1.
Chattel mortgages.
25. As to whom valid, without reference to acknowledgment, etc. A
chattel mortgage, being good as between the parties to it, without
acknowledgment, etc., will be equally valid against all persons who are
neither purchasers of the mortgaged chattels nor creditors of the mort-
gagor, and have no interest in the property. Badger v. Batavia Paper
Manufacturing Co. et al. 302.
26. When fraudulent as to creditors. If a chattel mortgage is exe-
cuted, not alone to secure an indebtedness to the mortgagee, but to pro-
tect the property of the mortgagor, and to hinder and delay his creditors,
and this fact is known at the time by the mortgagee, the mortgage will
be void as to the creditors attempted to be defrauded. Strohm v. Hayes,
41.
27. Liability of mortgagee in possession, to garnishee process. Where
a mortgagee of chattels reduced them to possession one or two days
before he was garnisheed for a debt of the mortgagor, but had not sold
the property, it was held, that he was not liable to the process on the
INDEX. 751
MORTGAGES AND DEEDS OF TRUST.
Chattel mortgages. Continued.
ground that the property in his hands exceeded in value the sum in
which the mortgagor was indebted to him. Dietor v. Smith et al. 168.
28. In case the mortgagee had sold the mortgaged chattels, and had
an excess in his hands over his debt, or had refused to sell according to
the terms of the mortgage, and converted the property to his own use, a
different question would be presented as to his liability. Ibid. 168.
MUNICIPAL SUBSCRIPTIONS.
May be made upon conditions.
1. Although the law authorizing a municipal subscription to a rail-
way company may be silent on the subject, yet the municipality voting
may lawfully impose conditions upon which the subscription is to de-
pend, and the corporate bonds to be issued, and until such conditions
are complied with, the courts will not compel the issuing and delivery
of the bonds by mandamus. People ex rel v. Glann et al. 232.
NEGLIGENCE.
Neglect to repair a way.
1. Unless a party is under some public duty to repair a way, even
though to his place of business, he will not be liable, for failing to do
so, for injury thereby caused to others. Buckingham et al. v. Fisher, 121.
Negligence of contractor.
2. Liability of owner of premises. Where the relation of master and
servant does not exist, nor directly that of employer and employee, but
the work is let to a principal contractor to do the labor and furnish the
materials for the erection of a building, the owner is not responsible for
the negligent conduct of the workmen engaged in the use of machinery,
or for any other negligence on their part. Prairie State Loan and
Trust Go. v. JDoig et al. 52.
Negligence in railroads
3. Facts showing negligence on the part of the company. In a suit
by the plaintiff against a railroad company, to recover for a personal
injury received at a railroad crossing in a city, the plaintiff being with-
out negligence on his part, it appeared that the plaintiff was struck and
run over by a switch engine of the company, which had come around
the curve, and was running at a rapid speed, and that neither the engineer
nor fireman saw the plaintiff until after the accident; that a boy, not an
employee, was occupying the fireman's place, and had charge of the
bell rope, and if the bell was rung at all, it was done by the boy by
way of amusement, and that the engineer and fireman were laughing
and talking, instead of watching to guard against injury : Held, that
the facts tended strongly to show that the engine was not properly
752 INDEX.
NEGLIGENCE. Negligence in railroads. Continued.
managed, and warranted the jury in finding negligence on the part of
the company. Chicago and Northwestern Railway Co. v. Ryan, 211.
#
" Ordinary care " — " fault."
4. In an action against a railroad company, to recover for injury
received through the alleged negligence on the part of the servants of the
company, the court, in some of its instructions, put the case, that, if the
accident happened without "fault" on the part of the plaintiff, etc.
It was urged, that the words "ordinary care" should have been used
in place of the word fault, but it was held, that the word used did not
change the sense or meaning of the instructions and did not make them
erroneous. Ibid. 211.
Contributory and comparative.
5. General rule. In an action to recover for injury alleged to have
resulted from the negligence of the defendant, it is not sufficient to
entitle the plaintiff to recover, if he shall have been guilty of contribu-
tory negligence, that there was a mere preponderance, in the degree of
negligence against the defendant. Chicago and Northwestern Railway
Co. v. Clark, Admx. 276.
6. The rule is, that, although the plaintiff may have been guilty of
some negligence, still, if it is slight, as compared with that of the
defendant, he may recover. But he can not recover unless the negli-
gence of the defendant clearly and largely exceeds that of the plaintiff.
Ibid. 276.
7. Duties at railroad crossings. It is the duty of persons about to
cross a railroad, to look about them and see if there is danger, — not to
go recklessly upon the road, but to take the proper precautions them-
selves, to avoid accidents at such places. If a party rushes into danger,
which, by ordinary care, he could have seen and avoided, no rule of
law or justice can be invoked to compensate him for any injury he
may receive. Chicago, Rock Island and Pacific Railroad Co. v. Bell,
Admr. 102.
8. In general, it is deemed culpable negligence to cross the track of
a railroad without looking in every direction that the rails run, to
make sure that the road is clear, as also to attempt to drive a team
across the track of a railroad in full view of an approaching locomo-
tive. Ibid. 102.
9. It is the duty of a person, desiring to cross a railroad track, to
act with prudence, and use every reasonable precaution to avoid an
accident, and, failing -to do so, he can have no recovery for an injury
which might have been averted by the exercise of ordinary care.
Chicago and Northwestern Railway Co. v. Ryan, 211.
10. "Where the plaintiff, when about to cross a railroad track in a
city, on the usual route from the place where he labored, to his resi-
INDEX. 753
NEGLIGENCE. Contributory and comparative. Continued.
dence, looked up and down the track, and saw that it was clear, there
being no engine in sight, and then started, and had proceeded only a
few steps, when a switch engine of the defendant came around the
curve, behind him, at a rapid rate of speed, without giving the usual
signals, and struck him, the whistle of a work shop near by being
blown at the time, it was held, in an action by him against the railroad
company, to recover for the injury, that negligence could not, under
the circumstances, be attributed to the plaintiff. Chicago and North-
western Railway Co. v. Ryan, 211.
11. In a suit against a railroad company for injury to the plaintiff,
alleged to have been occasioned by the negligence of the defendant, it
appeared the plaintiff was injured by a collision while attempting to
cross the defendant's track upon a public street ; that there were two or
more main tracks at the place of the accident, and that the plaintiff
was detained with his horse and wagon by a train of cars of another
company, on the track next to him, and that as soon as this train passed,
he started to drive across the track, there being a train of defendant
backing across the street on one of the other tracks, which struck his
horse and wagon. It also appeared that this train was moving at the
speed of four or five miles per hour, that the bell was being rung, that
a sufficient number of men were in charge of the train, and that there
was a flagman at the crossing in the discharge of his duty. The weight
of evidence also showed that the flagman hallooed to plaintiff to stop,
and made efforts to keep him from crossing. It was held, that, under
this state of facts, a verdict in favor of the plaintiff and against the
defendant could not be sustained. Chicago, Burlington and Quincy
Railroad Co. v. Rosenfeld, 272.
12. Where a party was killed by a locomotive colliding with his
wagon and team, while in the act of crossing the railroad track at a public
crossing, in the night time, and it appeared that it was very calm, still
and dark, that the train was lighted up, and there was a bright head-light,
that there was nothing to obstruct its view from the deceased, as it was
approaching, for some distance, and that he must have heard the noise ;
that the deceased was addicted to hard drinking, and was probably
under the influence of liquor, and that his team came upon the crossing
in a run, so as not to be seen by those in charge of the train until it
was upon the track, it was held, that, owing to the negligence of the
deceased, no recovery could be had by his personal representative
against the company, for causing his death, and injury to his team and
wagon. Chicago, Rock Island and Pacific Railroad Co. v. Bell, Admr.
102.
13. Neglect to ring bell, etc. If a traveler on the highway has notice
of an approaching train in time to avoid a collision upon the crossing,
the object of ringing a bell or sounding a whistle is subserved, and the
failure to perform such acts, or either of them, can not be held to be the
48— 70th III.
754 INDEX.
NEGLIGENCE. Contributory and comparative. Continued.
cause of an injury resulting from a collision, under such circumstances.
Chicago, Rock Island and Pacific Railroad Co. v. Bell, Admr. 102.
14. Negligence of servant in the manner of hitching horses. Where
the servant of the plaintiff drove plaintiff's team to defendant's ware-
house and wharf, and hitched the horses to a clog, but wound his lines
around the hub of the wagon, so that, when the horses backed, the lines
became shortened, and thus caused them to back into the river near by,
where they were drowned, and the wagon and harness lost : Held, that,
owing to the negligence of the servant the plaintiff could not recover.
Buckingham et al. v. Fisher, 121.
NEW TRIALS.
Verdict against the evidence.
1. The law having intrusted the trial of questions of fact to a jury,
a verdict will not be disturbed, unless it is manifestly against the weight
of evidence, or unless necessary to prevent a plain perversion of justice.
Chicago and Northwestern Railway Co. v. Ryan, 211.
2. The mere fact that this court is not free from doubt as to which
way the preponderance of the testimony is, upon a disputed fact, does
not authorize it to disturb the verdict. Reynolds v. Palmer <& Hopper,
288.
3. Where the evidence is conflicting and irreconcilable, and the
jury are properly instructed, a new trial will not be granted,' but the
verdict must be relied on as settling the controverted facts. SimGns
v. Waldron et al. 281.
4. A joint judgment against two defendants in trespass, as the
owners of an omnibus, for running into a carriage, where there is no
evidence of ownership or interest as to one of the defendants, can not
be sustained on appeal or error. Ragor et al. v. Kendall, do.
Excessive damages.
5. In trespass. Where the defendant, in company with a large num.
ber of other men, went, in the night time, to the plaintiff's dwelling,
and blew horns, and fired guns into the air, and, upon the plaintiff's
husband firing into the crowd, they fired into the house on all sides,
breaking nearly all the glass in the windows, forcing the plaintiff, with
her children, to take refuge in the cellar, and afterwards took forcible
possession of the house under a certificate of purchase, and removed
the plaintiff 's goods into the road: Held, that $1100 damages could
not be regarded as excessive. Huftalin v. Misner, 55.
6. In trespass by landlord. Where the agents of a landlord, acting
for him, made an entry into the dwelling house of a tenant, before his .
lease expired, and put others in, and exercised dominion over the goods
and chattels of the tenant, and removed them from one room to another,
and deprived him of the beneficial use of the dwelling house, and
INDEX. 755
NEW TRIALS. Excessive damages. Continued.
treated him with indignity, and his rights with contempt, a verdict for
one thousand dollars damages is not excessive, and does not afford any
evidence that the jury did not take a cool and deliberate view of the
case. Dear love et al. v. Herrington, 251.
7. Personal injury. Where the plaintiff had both the bones of the
lower part of his right leg broken, by reason of the negligence of the
defendant, and was for several months wholly incapacitated from labor,
was subjected to considerable expense, and his injury is permanent,
$2500 is not outrageously excessive damages. Northern Line Packet
Co. v. B inning er, 571.
On ground of mistake by witness in his testimony.
8. Of the diligence to correct. Before a new trial is granted on the
ground that a witness of a party was mistaken in his testimony given,
and, on a new trial, will correct the same, the party must show that he
has been active and diligent to avert the injury he is about to sustain
by the mistake of the witness, and if the mistake could have been
demonstrated, and the correction made before the close of the trial, a
new trial will be properly refused. Cooke v. Murphy et al. 96.
For newly discovered evidence.
9. A new trial will not be granted on the ground of newly discovered
evidence, which is merely cumulative, and which, if admitted, would
be so unreliable and suspicious that it ought not to be believed. Blake
v. Blake, 618.
10. Where a party has had a trial upon issues, in the forming of
which he participated, he can not have a new trial for newly discovered
evidence, unless he can satisfactorily show that such evidence is not
only material to the issue, but of a controlling and conclusive character,
and that he has been guilty of no negligence in not discovering and
producing it on the trial. Champion v. Ulmer, 322.
11. Sufficiency of affidavit as to diligence. It is the rule of this court,
upon the question of diligence, that the party must negative, in his
affidavit, every circumstance from which negligence may be inferred.
Ibid. 322.
NOTICE.
What constitutes notice.
1. Generally. Whatever is sufficient to put a party upon inquiry
which would lead to the truth, is, in all respects, equal to, and must be
regarded as, notice. Chicago, Bock Island and Pacific Railroad Co. v.
Kennedy et al. 350.
2. If a subsequent purchaser acts in bad faith, and wilfully or neg-
ligently shuts his eyes against those lights which, with proper observa-
tion, would lead him to a knowledge of facts affecting the subject of his
purchase, he will be held to have notice of such facts. Ibid. 350.
756 INDEX.
NOTICE. What constitutes notice. Continued.
3. By recitals in a deed. The recitals in a deed in the chain of title,
are such notice to a purchaser as would put him on inquiry as to the
nature and extent of the matters referred to in the recitals. Chicago,
Bock Island and Pacific Railroad Co. v. Kennedy et al. 350.
4. To what extent recitals in a deed put a party on inquiry. In this
case, the owner of a tract of land had, in his lifetime, executed a trust
deed to secure the payment of an indebtedness, with power of sale upon
default in payment. The indebtedness was paid alter the death of such
owner, but the trustee afterwards sold under the deed, to parties who
had notice of such payment. Before any sale was made by the pur
chaser, there were put upon record, in the office of the recorder of deeds
of the county where the land was situated, a power of attorney from one
to another of the heirs, in which was a recital, that by the act of one of
the purchasers at the trustee's sale, naming him, and others, the rights
of some of the heirs had become involved ; also, two mortgages on said
premises, executed by a part of the heirs, in both of which it was recited
that a suit had been commenced by such heirs to recover their interest
in the land, giving the title and purpose of such suit, and that such suit
had been dismissed by agreement of counsel, without adjudication:
Held, that the recitals in the power of attorney and mortgages were suf-
ficient to put subsequent purchasers upon inquiry as to the truth of the
recitals, and to charge them with notice of everything disclosed by the
records, in the proceedings mentioned in such recitals, and of everything
which they could have reasonably learned hy inquiring in the direction
to which the recitals pointed. Ibid. 350.
Notice by possession.
5. The possession of land is notice of the extent and character of the
claim of those holding possession, and nothing more. Munn et al. v.
Surges et al. 604.
6. In a suit between two parties in relation to the title to land in the
possession of a third party, who claims adversely to both of them, such
adverse possession is notice of nothing more than the extent and char-
acter of the claim of such adverse occv^ant. Ibid. 604.
To set aside judicial sale.
7. To whom to be given. See JUDICIAL SALE, 4.
Op lien or incumbrance.
8. As to subsequent purchaser. See PURCHASERS, 5 to 8.
Op pendency of suit.
9. By one to make judgment binding on another. See JUDG-
MENTS, 9.
INDEX. 757
NUISANCES.
Power of village op Hyde Park to abate. See CONSTITUTION-
AL LAW, 7, 8.
Cemetery is not, per se. See CEMETERY, 1.
OFFICERS.
Whether to be elected or appointed.
1. The rule ordinarily is, that where the right is once given to elect
to a particular office, it is not subsequently withheld, and the office filled
by appointment, yet this is but practice, that may be departed from, the
constitution being silent on the subject, whenever the legislature sees fit
so to do. People ex rel. v. Wright, 388.
PARTIES.
In chancery.
1. Generally. The general rule is, that all parties in interest, and
whose rights may be affected by a decree, must be made parties to the
bill. Alexander v. Hoffman et al. 114.
2. On bill for specific performance. Where a party, claiming to have
succeeded to the equitable rights of a purchaser of land, by sale on exe-
cution against him, seeks a specific execution of the contract against the
vendor, the original purchaser is a necessary party to the bill. Ibid.
114.
At law.
3. When owners of stock in severalty may be sued jointly for trespass.
Where the horses trespassing upon the plaintiff were owned by several
defendants, not jointly, but severally; were kept together in a common
herd on the owners' farm, and were under the joint control of all of the
owners, and they broke through the defendants' portion of a division
fence, which was out of repair, and damaged the plaintiff's crops, it was
held, that the plaintiff might maintain an action against all the defend-
ants, jointly. Ozburn et al. v. Adams 291.
4. Non-joinder of reached only by plea in abatement in forcible entry
and detainer. See ABATEMENT, 1.
PARTITION.
Service of process.
1. As to minors. If a proceeding for partition is by bill in chancery,
it is indispensable to the jurisdiction of the court that the summons
should be served upon the minor defendants in interest, service on
their guardians being insufficient. But if it is under the statute,
service upon their guardian, by reading, is sufficient to give the court
jurisdiction. Nichols v. Mitchell, 258.
758 INDEX.
PARTITION. Continued.
Whether in chancery.
2. Or under the statute. Where a decree of partition and a sale
thereunder are questioned collaterally, the case will be considered as in
chancery, or under the statute, whichever will sustain the jurisdiction
of the court, to give stability to such sales. Nichols v. Mitchell, 258.
Claim for repairs.
3. How adjusted. Where, in making partition of land and assigning
dower, the widow had set off to her, as her dower, that portion upon
which she had made the principal improvements, and it appears that
the use of the whole premises had amply compensated her for the
repairs made by her on the remaining portion, there will be no error in
not decreeing compensation to her for her improvements and repairs.
Turner v. Bennett, 263.
4. As against homestead. See HOMESTEAD.
Incumbrances.
5. Should be ascertained and apportioned. Where partition is sought
of premises on which there are incumbrances, the court should ascer-
tain the incumbrances by proof, and apportion them according to the
rights of the parties, and not intrust this duty to the commissioner.
Kingsbury v. BucJcner et al. 514.
Insurance money.
6. How applied. Where there is money due for insurance on account
of injury to the property by fire, and there are incumbrances on the
property, on a bill for partition and an account, the court should direct
the insurance money to be applied to the removal of all the matured
incumbrances, before making any distribution thereof. Ibid. 514.
When sale may be ordered.
7. A sale of the real estate of tenants in common can not be decreed by
the court, for the purpose of distribution, until commissioners appointed
by the court have reported, upon their oaths, that the land can not be
partitioned without prejudice to the interests of the owners. Le Moyne
et al. v. Quimby et al. 399.
Improvements by one tenant in common.
8. Whether a prior lien as against a mortgage given by another. See
MORTGAGES AND DEEDS OF TRUST, 6.
Attorney's fee.
9. When allowed. See ATTORNEY AT LAW, 4.
PARTNERSHIP.
Payment of debts after dissolution.
1. An authority from one partner to a co-partner, to pay debts for
him, if given before the dissolution, is as good as if given after, and the
partner so paying will have a right of action to recover for the same in
either case, whether the same has been charged on the books of the
firm or not. Yolk et al. v. Roche, 297.
INDEX. 759
PATENT RIGHTS.
State and federal authority.
1. Constitutionality of State law relating to sales. The act entitled
"An act to regulate the sale of patent rights, and to prevent frauds
connected therewith," approved March 25, 1869, is unconstitutional and
void, as attempting to regulate and control, by State legislation, matters
of which the Congress of the United States has exclusive jurisdiction
and control under the federal constitution. Hollida & Ball v. Hunt,
109.
2. Mights of patentees derived exclusively under the laws of Congress.
The monopoly or exclusive right of making, using and selling the
improvement invented, and which is secured by letters patent, is created
by act of Congress, and no rights can be acquired under such letters,
except such as are authorized by statute, and in the manner the statute
prescribes. Ibid. 109.
3. The right to vend necessarily implies the power to do so wherever
the jurisdiction of the authority conferring the right extends. The
power to regulate and control a right derived under national grant, by
State legislation, necessarily concedes the supremacy of the latter. If a
State has the power to regulate the sales of patent rights, there is noth-
ing to prevent it from entirely prohibiting the same. Ibid. 109.
4. Law discriminating against notes taken on sales. It is undoubtedly
within the power of the legislature to prescribe the form and declare
the effect of negotiable instruments, but it has not the constitutional
power to discriminate prejudicially against promissory notes taken on
sales of patent rights, as such legislation tends, to a certain extent, to
destroy the right granted by Congress to sell rights with the same free,
dom that may be exercised in regard to any other property, according
to the common and usual course of trade. Ibid. 109,
5. If a patentee complies with the act of Congress, which is para,
mount in respect to the rights and privileges secured to him, he will
have the right to go into the open market, anywhere within the United
States, and sell his property in the invention, notwithstanding any State
law to the contrary. Ibid. 109.
PAYMENT.
Presumptive evidence.
1. When a promissory note past due is in the possession of the
maker, the law will infer, from this fact alone, unexplained, that it has
been paid. Walker et al. v. Douglas et al. 445.
PLACITA.
Must show judge holding court. See COURTS, 4,
760 * INDEX.
PLEADING.
Of the declaration.
1. When plaintiff must declare specially. If a vendor elects to sue
for and recover damages for a breach of a contract to purchase, he must
declare specially. Burnham v. Roberts, 19.
2. As to condition precedent. Where the consideration of the de-
fendant's contract is executory, or his performance is to depend on some
act to be done or forborne by the plaintiff, or on some other event, the
plaintiff must aver the fulfillment of such condition precedent, or must
show some excuse for the non-performance. People ex rel. v. Olann
et al. 232.
3. Allegation of performance. Where a right claimed is dependent
upon the performance of conditions precedent, it is not sufficient to state
a performance in all things generally, but the pleader should allege
specially that each condition was performed and the manner of its per-
formance. Ibid. 232.
4. Defects cured by confession of judgment. See JUDGMENTS, 6.
Arrest of judgment.
5. For defects in pleading. A judgment will not be arrested for a
defective allegation in a pleading, which, from the context, clearly ap-
pears to be a mere clerical error of the pleader. Shiplierd v. Field, 438.
Plea of fraud.
6. Its requisites. A plea setting up fraud in procuring the execution
of a guaranty, must set out the facts constituting the fraud. A general
allegation that the defendant was induced to execute the contract by
means of fraud, covin and misrepresentation of the plaintiff, and others
in collusion with him, is bad on demurrer. Jones v. Albee, 34.
Replication.
7. To pleas denying jurisdiction. If the defendant, when sued upon
the record of a judgment of a sister State, which shows a personal ser-
vice, pleads, denying the jurisdiction of the court over his person, the
plaintiff should properly reply that the record shows a personal service
Zepp v. Hager, 223.
Repugnancy.
8. Where matter in a pleading is nonsense, by being contradictory
and repugnant to something precedent, the precedent matter which is
sense shall not be defeated by the repugnancy which follows, but that
which is contradictory shall be rejected, and this more especially after
verdict. Bhipherd v. Field, 438.
Of the common counts.
9. Recovery of price of property sold. See CONTRACTS, 8.
In proceeding for mandamus.
10. Of the rule of pleading. See MANDAMUS, 3.
LNDEX. 761
PLEADING AND EVIDENCE.
Allegations and proofs.
1. Proof must have its foundation in the pleadings. Where the cause
of action stated in a declaration was, the obstructing the defendant's own
track with cars, so as to prevent passengers from crossing over to the
plaintiff's eating house, and there was no averment of the obstruction
of a crossing or public way over the track, it was held, that such evi-
dence was inadmissible, and could not be considered. Disbrow v. Chi-
cago and Northwestern Railroad Go. 246.
2. Under the common counts. The averment in a common count of
the sale and delivery of property, is substantial, and must be proved, to
warrant a recovery. Burnham v. Roberts, 19.
3. Plea of license. In trespass by several tenants in common of
land, a plea that the defendants entered, etc., under the license of the
plaintiffs, is not sustained by proof of a license from but one of the ten-
ants in common. Murray et al. v. Haverty et al. 318.
4. Chattel mortgage may be shown fraudulent without plea so charging.
Where property is claimed under a chattel mortgage, the other party,
acting for creditors, may attack it for fraud, without any pleading dis-
closing the grounds and nature of the attack. Strohm v. Hayes, 41.
Set-off should be specially pleaded. See SET-OFF, 2.
POLICE POWER OF THE STATE. See CONSTITUTIONAL LAW,
1 to 9.
POSSESSION.
Sufficiency of proof of.
1. To maintain forcible entry and detainer. See FORCIBLE EN-
TRY AND DETAINER, 4, 5.
As notice of title or claim. See NOTICE, 5, 6.
PRACTICE.
Placing cause on trial calendar.
1. Where a rule of court only authorizes a cause to be placed upon
the trial calendar when at issue, a cause was placed upon that calendar
in which the general issue was pleaded, and a special plea showing a
breach by the plaintiff of the contract sued on, but which alleged no
sum as damages. The court refused to strike the cause from the docket,
on defendant's motion, and after this the special plea was amended and
replication filed, and a trial had: Held, that as the cause was substan-
tially at issue, the court did not err. Lincoln v. Schwartz et al. 134.
Time for objecting to evidence.
2. Objections to evidence must be made on the trial. A party is not
allowed to sit quietly by, and suffer objectionable evidence to be given
to the jury, and then urge his objection, for the first time, in this court.
mm \
PRACTICE, Tixik FOB tfECTIS •■. vv.\ Continued*
He must object when the evidence is given, so that the other party ■ \
correct Uw such it be, in the lower court. Galena ami Southern
Vu WITHOVT ISS1
IVoceeding to trial without an issue being made up on
one of the - is considered as a waiver of a formal issue, and the ir-
regularity will he cured by the verdict. Strvhm v. Hayes. 4t.
4. It' the defendant neglects to rejoin to a special replication, the
plaintiff may obtain a rule to rejoin, or pray judgment for want of a
inder. If he does neither, and goes to trial without objection, the
■v ./•■. of a formal issue will be waived, ibid. 41,
8* -".or.
5. iV> [t is a matter of discretion with the court to instruct
the jury to tind a special verdict in respect to disputed facts, and error
can not Ik1 assigned upon the refusal of the court to so instruct. Kane
m
is VRmm&L cask.
t>. i$w not named out, >. The prosecution in a crimi-
nals. - > restricted to the witnesses whose names are indors
the back of the indictment, a list of which is required to be furnished
the accused, especially when notice is given that others will be called.
Pe
PRACTICE IN TH . /vy rjQI R [
WxtAX THE TRANSCRIPT MT3S1 STAIH
1. If a party assigns for error the refusal to give part of his instruc-
tions, the record should show those that were given, as well as those
refused* Stmikm y. Hayes, 41.
CaY? v> by the record.
C Except on a plea of extrinsic matters, such as a release of errors,
etc., a cause brought to this court on writ of error must be determined
solely upon the record sent up from the inferior court, Perteet v. The
People, 171.
What may be assionkd a> brbor.
§. Qm a m%md appeal or writ «f mw. It will be presumed, w
a case is determined in the Supreme Court upon its merits, and the
errors assigned, that the appellant or plaintiff in error has no further
objection to urge against the record, and that, if any errors exist which
are not so assigned, they are waived, and he will not be permitted to
assign such errors on a second appeal. He will not be permitted to
have his cause heard partly at one time and the residue at another.
Ogdm v. Larmhw* Admr. 510.
ixwsx* 7ft&
VE&CTMM EST THE mFMEME mVKT, VwMmmL
CATION, 4 to X
& Hm« fmr «m»dvmm WBua& a &m; flua» flyman toM m tfbm ©wnrt
rajpf jioi M* MKtviifl% audi BwaaaawMl wMi apw-alfe 4h&tR'^nm to <fflftwuL-ii**. tiita:
tlMimig fount to essry ©eat tfliue s^eMi© dSiimauufc. JUg/$/*v WMmn&dtal.
•m..
ft. IX&Mm $» <sm$wmBgi to mtmSmU *f iSkm mmwt^ mm md foe ««*wi<ynu>j%
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diiirwEit&oina; toi»i& «ftuUa2nB axefl,, wllSdb fe <feuft-M Hlk** axBttaHu of tttie winrt;
foetow (fjaam matt fiwfc suh»^b^ Iftar" «nnosr. TTUe <&c&Hna> atom <mi% k a wkw:d
Wmcuawnnr stmr ©KnoeinKiaRs j&3kd> aaaaEarmesfsu
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wMidkt a# lkas awXt eftjesttsdip &mx$ <HB©ft5>Jtoil to tike raB5at!g «tf'iilkie cowatterar-
zinfl&ng M* ©igjaattoBL. MggiwMa> v.. Wmknmr & M^f^w„ 2$$L
SL ASBammiui'r, ■ - •■ • • few af Ux6£mwn^, TSu^ m^mmm «£ rwj$m$&r
mm <s&kmfaM& to Miikiiftstti fe jpny,. a* ««* gD^vnmdl for nHfr jt«w*HJ-«jii «f &
jwjilginaitt. BM.M.
§L T^ easdhja^m <off e\ri^^
JUL ffifoSntf w wvjf'muiwy iimMvu^timm.. WSasam fit m saqpfpatteaA flUatft »
«nrwir iim B^B»aiDug: Dffi^dui.ayiarMiA ifiniiid»&«» aro> pmmsi£ o&' iwotasa^ a* flft*
enronr wMife* axa> fD^mfiSfisu Mmfiatu v. Wmym* 4IL
IX jytffl*®«i!^j tfltems auay b« toiivM ftnnroB* 5m shuts; «f tia« nasltirnKfliwai*
^ihnstiD,. a veufffikil wt" ED Biott Tfe* $£(t a»ikfe- -wftiatJij aiKiaiui1i'««% diaat |aHfia9$
BwsttwftJim tfljft ffaBrt&Mi Maarmg M<riLw~ Mammtiy estt <sL 331SL
(Df tiw^ /ff«wi/ pwmawjib fy/ mmRmn See PAYMENT,, IL
Isp FAT<a«i (aw jro»Kffiffi3Pir asar cflasOTEafflKw:. See JttTjMOfflOriH^ 3u
OpMASBi^saL ^«MjyBffiaLMSE;,lto4.
FB0KAB3LE CACSE1. See MAOOOITS F!B0SlEKinFII<^3Sr„ * % 4L
764 INDEX.
PROCESS.
Of the service.
1. By deputy sheriff. Where a summons is served by a deputy
sheriff, it is of no importance that the name of the sheriff is written
below that of the deputy in the return, instead of above, as is usually
done. Zepp v. Hager, 223.
2. Return showing service on one of different name. The sheriff
made a return upon a summons in chancery, against May Louisa
Ismon, that he had served the same upon Mary Louisa Ismon : Held,
that, in the absence of proof to the contrary, this court must hold the
names to indicate two distinct persons, and, consequently, that there
was no service on May Louisa Ismon. Kennedy v. Merriam et al. 228.
3. Mode of service in suit for partition. See PARTITION.
PROMISSORY NOTES.
AS A GIFT.
1. Not enforceable, for want of consideration. See GIFT, 2.
For patent right.
2. Law relating to, unconstitutional. See PATENT RIGHTS, 4.
What is fraud and circumvention in procuring. See FRAUD AND
CIRCUMVENTION, 1.
PURCHASERS.
At judicial sale.
1. Who is the purchaser, when property is bid in by attorney. Where
the attorney of the plaintiff in execution purchases the land sold, in his
own name, taking a certificate of purchase to himself, and pays the
costs only, but no part of the execution, and, as attorney, gives the
sheriff a receipt for the amount of the judgment, the purchase will be
that of the plaintiff in execution, and the attorney can not assign the
certificate without his authority. Hays v. Cassell, 669.
2. When affected by reversal. If the attorney of a plaintiff in execu-
tion purchases land sold under the execution, on his own account, he
can not be regarded as a bona fide purchaser, so as not to be affected by
a subsequent reversal of the judgment. Ibid. 669.
On sale by mortgagee.
3. Title acquired by him under his own sale, not void, but voidable.
If the mortgagee, with power of sale, sells and conveys under the mort-
gage to another, with the understanding that the purchaser is to convey
to him, and the purchaser does so convey, the title thus acquired will
not be absolutely void, but voidable only; and in such case, if steps are
not taken by the owners of the equity of redemption, upon knowledge
of the fact coming to them, ratification of the sale will be implied
Munn et al v. Burges et al. 604.
INDEX. 765
.PURCHASERS. Continued.
Satisfaction of mortgage.
4. As to subsequent purchase?*. Where a junior mortgage was assigned
by a deed absolute on its face, though, in fact, as a security for the pay-
ment of money, to one who afterwards purchased the equity of redemp-
tion from the mortgagor, and also purchased the land at a sale under a
senior mortgage, and then sold to a third party, without notice of the
private agreement between the assignor and assignee of the junior
mortgage, such purchaser took the absolute title, discharged of any
claim under either of the mortgages. Baldwin et al. v. Sager, 503.
Subsequent purchasers.
5. With and without notice. The recitals in a deed, of a fact which
may or may not, according to circumstances, amount to a fraud, will
not affect a purchaser for a valuable consideration, denying actual notice
of the fraud, nor will circumstances amounting to a mere suspicion be
deemed notice. Munn et al. v. Surges et al. 604.
6. Where a party purchases property upon which there is a lien, of
which he has no notice, and pays all the purchase money, he will hold
it, discharged of such lien. Baldwin et al. v. Sager, 503.
7. If a party purchases property without notice of any lien or in-
cumbrance thereon, but, before paying for the same, he is notified of
such lien, the same can be enforced as against him. Ibid. 503.
8. If a party purchase land for full value, without notice of any lien,
and pays a part of the purchase money, and, before paying the balance,
is notified of such lien, the same can be enforced to the extent of the
unpaid purchase money, if the notes given therefor have not been nego-
tiated. Ibid. 503.
What constitutes notice to purchasers. See NOTICE, 1 to 6.
Who may purchase.
Under deed of trust. See MORTGAGES AND DEEDS OF TRUST,
21.
QUO WARRANTO.
Discretionary.
1. The granting of leave to file an information in the nature of a
quo warranto is within the sound discretion of the court. Leave is not
given as a matter of course, but a court ought not arbitrarily to refuse
leave, but should exercise a sound discretion, according to law. People
ex rel. v. Waite, 25.
How instituted.
2. The usual and proper mode of instituting a proceeding n the
nature of a quo warranto is, for the State's attorney to submit a motion
for leave to file the information, based on affidavit. A rule nisi is then
766 INDEX.
QUO WARRANTO. How instituted. Continued.
laid on the defendant to show cause why the information should not be
filed, which he may answer by counter affidavits. People ex rel. v.
Waite, 25.
RAILROADS.
Liability for touts.
1. Liability for obstructing passage over its track to a party's eating
house. Where a railroad company had several tracks between the depot,
where passengers got off its trains, and an eating house of a party, and
trains were made up at that station, so that it was dangerous for persons
to cross over to the eating house, the company will not be liable to the
proprietor of the house for leaving freight and other cars on its side-
track, so as to make it difficult for passengers to cross over to his house.
The company, in such a case, is not obliged to keep open an unob-
structed way for the passage of persons to and fro across its track, for
the accommodation of the private business of an individual, and the
obstruction was a lawful means to adopt for the safety of passengers, ami
to protect itself from liability for injury to others in crossing. Dis-
brow v. Chicago and Northwestern Railway Co. 246.
Duties and liabilities.
2. As compared with those of warehousemen. See WAREHOUSE-
MAN AND WHARFINGER, 2, 3.
RECOGNIZANCES.
Setting aside forfeiture.
1. Counter affidavits, on a motion to set aside the forfeiture of a re-
cognizance supported by affidavit, are not admissible. Wray et at. v.
The People, 664.
2. Grounds for setting aside. Where it is shown that the failure of
a party to appear, according to the condition of his recognizance, was
not for the purpose or with intent to evade the law, and that he is guilty
of no laches or negligence in appearing at the earliest opportunity after
the cause which kept him away is removed, he will be entitled to be
discharged from a judgment of forfeiture, upon the payment of costs.
Ibid. 664.
3. Where a party, entering into recognizance to appear and answer
to a criminal charge, fails to appear at the time required, in consequence
of being under bond to appear at the same time in a foreign court, and
to save his security in such bond, this will afford good cause for setting
aside a forfeiture of his recognizance, if he in good faith surrenders
himself as soon as he can after being released from attendance in the
foreign court, and within a reasonable time after the forfeiture. Ibid.
664.
4. Discretion of the court to relieve against forfeiture. The statute
giving the circuit courts discretion to relieve against a forfeited recogni-
index. 767
RECOGNIZANCES. Setting aside forfeitures. Continued.
zance does not mean an arbitrary discretion, but a sound legal one, and
if abused or improperly exercised, this court will review and correct its
exercise, Wray et al. v. The People, 664.
RECORD.
Can not be impeached by parol. See EVIDENCE, 11.
How explained or qualified. See EVIDENCE, 10.
REDEMPTION.
What constitutes.
1. When land is sold under a deed of trust given by a party in his
lifetime, and a stranger becomes the purchaser, and afterwards conveys
the land to another in trust for one of the heirs of the deceased grantor,
this will not operate as a redemption from the trust deed, and inure to
the benefit of all the heirs of the grantor. Kingsbury v. Buckner et al.
514.
From mortgage or deed of trust. See MORTGAGES AND DEEDS
OF TRUST, 14 to 18.
RELEASE.
Power of one tenant in common to give. See TENANTS IN
COMMON, 1.
REMITTITUR.
On reversal not necessary to jurisdiction. See JURISDICTION, 4.
REMOVAL OF CAUSES.
From State to Federal court.
1. What petition should state. A petition by a corporation for the
removal of a cause from a Stale to a United States court, under the act
of Congress of July 27, 1868, should state that the defendant is a corpo-
ration organized under a law of the United States, or that there is a
defense arising under the constitution of the United States, or some
treaty or law of the United States. Northern Line Packet Go. v. Bin-
ninger, 571.
2. To entitle a defendant corporation to have a cause removed from
a State court to the circuit court of the United States, under the act of
Congress of March 2, 1867, the petition should show that all the corpo-
rators are non-residents of the State. Ibid. 571.
3. Not after reversal, with direction to dismiss. Where a decree is
reversed in this court, and the cause remanded with specific directions
to the court below to dismiss the bill, this is a final disposition of the
cause, and it can not subsequently be removed to the Federal Court,
under the act of Congress of March 2, 1869. Boggs v. Willard et al. 815.
768 INDEX.
REPLEVIN.
When it lies.
1. Does not lie for property taken for taxes. The action of replevin
does not lie to recover property levied on for taxes, although it may be.
seized on a warrant against one not the owner of the property. The
owner's remedy in such case is by an action of trover or trespass against
the officer. Vocht v. Heed, 491.
RESCISSION OF CONTRACTS.
For fraud by purchaser. See FRAUD, 2, 3.
Performance to prevent rescission. See CONTRACTS, 20, 21, 22.
RETURN UPON PROCESS.
Mat be amended. See AMENDMENTS, 4.
REVERSAL OF JUDGMENT.
Effect on rights of parties.
1. The effect of a judgment of reversal is, to restore the defendant
to all he has lost by the erroneous judgment, if the title to the property
has not passed by the execution of the judgment to a third party; and
if this is the case, the defendant will have an action against the plain-
tiff for full damages. Mays v. Cassell, 669.
Also, see PURCHASERS.
RIGHT OF WAY.
Damages to property not taken.
1. The clause of the constitution which provides that "private
property shall not be taken or damaged, for public use, without just
compensation,]' must receive a reasonable and practicable interpreta-
tion. Where the property is not taken, the damages must be real, and
not speculative. If the property is not worth less in consequence of
the construction of a railroad in its vicinity, or upon a street upon
which the lots abut, than if no road were constructed, the owner will
not be entitled to damages, and can not enjoin the construction of the
road in the street in pursuance of the company's charter and the license
of the city authorities. Chicago and Pacific Railroad Co. v. Francis,
238.
2. The true measure of compensation for land not taken by a railway
company for a right of way, is, the difference between what the whole
property would have sold for, unaffected by the railroad, and what it
would sell for as affected by it, if it would sell for less. The damages
must be for an actual diminution of the market value of the land, and
not speculative. Page et al. v. Chicago, Milwaukee and St. Paul Pail-
way Co. 324.
INDEX.
769
RIGHT OF WAY. Damages to property not taken. Continued.
3. Where a railroad is located over a tract of land, and compensa-
tion is allowed the owner for the land actually taken, he can not recover
damages as to a small part of the tract, not taken, if the whole is not
damaged, when taken together. Page et ah v. Chicago, Milwaukee and
St. Paul Railway Co. 324.
4. The jury, under the act of 1872 relating to right of way, are not
required to assess the damages to a strip of land lying within a few
feet of the right of way of a railroad, but the damages, if any, to the
entire tract, by reason of the construction and operation of the road.
The effect must be considered upon the market value of the entire tract,
and not a distinct part. Ibid. 324.
5. Where land is not taken by a railway company for its right of
way, but damaged only, the question should be, will the property be of
less value, when the road is constructed, than it was when it was located ?
If so, then the difference is the true measure of damages. To ascertain
this, the opinions of intelligent witnesses on the subject, are proper.
Eberhart v. Chicago, Milwaukee and St. Paul Railway Co. 347.
6. The damages contemplated by the constitution, where the prop-
erty is not taken for the use of a railway company, must be actual, real
and present damage to the property. Ibid. 347.
AS TO LAND NOT DESCRIBED IN PETITION.
7. Where the petition for the condemnation of land for right of way
describes only one tract of the defendant's land, a portion of which it
cuts off from his entire farm, also consisting of another tract, the correct
practice, in order to recover damages as to the whole, is, to file a cross-
petition ; but where this is not done, and evidence is given as to the
entire damages, without objection, and the court protects -the petitioner
from further proceedings for the assessment of damages as to the
balance of the farm, by requiring the owner to execute a release as to
it, the judgment or order of the court will .not be reversed at the instance
of the petitioner, as the error, if any, works no injury. Galena and
Soutliem Wisconsin Railroad Co. v. Birkoeck, 208.
8. Where a petition to condemn land for a right of way describes
only one tract of the defendant's farm, which is cut off from the rest of
the farm, and damages are assessed only in respect to that tract, the
owner may afterwards cause the damages to be assessed as to the balance
of his land. Ibid. 208.
Dividing a farm.
9. The fact that a portion of a farm is cut off by a railroad, is, in
very many, if not in all, cases, a permanent injury to the entire farm,
and materially diminishes its value, and is a legitimate source of dam-
age. Ibid. 208.
49— 70th III.
770 INDEX.
RULES OF COURT.
Must conform to statute.
1. To be obligatory, rules of court must be in conformity with, and
not repugnant to, the general laws relating to practice. Linnemeyer v.
Miller et al. 244.
SALES.
Who liable for price.
1. Where goods are sold to a firm, whose notes are given for the
price, and the firm purchasing buys for another firm, composed, in
part, of the same members, and the latter firm pays the first for the
same, it will not be liable to the original vendor for the price. Bobbins
v. Grandall, 300.
Delivery.
2. If a recovery of the price of a claim upon an estate, which has
been sold, is sought, under the common counts, the claim must have
passed to the purchaser by an assignment or some other act tantamount
to a delivery. Burnham v. Roberts, 19.
Rescission for fraud. See FRAUD, 2, 3.
Sale of stocks by broker or banker.
3. In case of two sales, what price shall govern. See AGENCY, 6.
Of contracts for sales. See CONTRACTS, 7 to 14.
Judicial sales. See that title.
SERVICE OF PROCESS.
Parol evidence.
1. Where the service is by summons, and it is insufficient to confer
jurisdiction, parol evidence can not be heard to prove or aid it; but
where the service is by publication, it may be received to prove the due
publication of the notice. Barnett v. Wolf, 76.
Finding in decree.
2. Effect thereof See JURISDICTION, 7, 8.
SET-OFF.
What may be set off.
1. Demands for work and labor performed, board, goods sold and
delivered, and for money, etc., are not unliquidated damages, and may
be set oft" in an action ex contractu, whether they arise out of the sub-
ject matter of the plaintiff's suit or not. East v. Crow, 91.
Must be pleaded.
2. In a proceeding for a mechanic's lien, where the defendant has
failed to answer, and a default entered against him, he has no right to
have a distinct debt due him from the petitioner, in nowise connected
with the subject matter of the suit, set off against his indebtedness.
Under such a state of pleadings, a set-off can not be allowed. Fret-
broth v. Mann, 523.
Burden of proof. See EVIDENCE, 19.
INDEX. 771
SPECIAL VERDICT.
Instructing to find, discretionary. See PRACTICE, 5.
SPECIFIC PERFORMANCE. See CHANCERY, 14 to 24.
SPIRITUOUS LIQUORS. See INTOXICATING LIQUORS.
STATUTES.
Of the passage of statutes.
1. Whether subject expressed in the title. The Mayors' bill is not in
conflict with section 13, article 4, of the constitution, as embracing
more than one subject; the entire act relates to a single general subject,
which is sufficiently expressed in the title, namely : the duties of mayors
in cities, and there is nothing incongruous in its different provisions.
The People ex rel. v. Wright, 388.
2. In respect to amendments. The constitutional provision requiring
bills to be read on three several days before their passage, does not apply
to amendments to the same. The People ex rel. v. Wallace, 680.
3. The clause of the constitution which says, "no law shall be
revived or amended by reference to its title only, but the law revived,
or the section amended, shall be inserted at length in the new act," can
not be held to embrace every enactment which in any degree, however
remotely, affects the prior law on a given subject. An act complete in
itself, is not within the mischief designed to be remedied by this pro-
vision, and is not prohibited by it. The People ex rel. v. Wright, 388.
Whether a statute is amendatory.
4. The mere fact that an act does not, in its title, profess to amend a
city charter, is unimportant ; it is an amendment if it professes to, and
does, enact that which makes new organic law for the city government.
Ibid. 388.
Mode of proof.
5. The court will not act upon the admissions of parties that a statute
has not been passed in the manner required by the constitution. Such
fact must be shown either by the printed journals or the certificate of
the Secretary of State. Happel et al. v. Brethauer, 166.
General and special laws.
6. A statute for the assessment and collection of taxes, which applies
to all incorporated cities and towns in the State, is a general, and not a
special law, within the meaning of the constitution. People ex rel. v.
Wallace, 680.
7. A local or special statute is limited in the object to which it ap-
plies ; a temporary statute is limited merely in its duration ; a local or
special law may be perpetual, or a general law may be temporary ; the
Mayors' bill is neither local nor special — it is a temporary general law,
and is not within the provision of the constitution prohibiting special
legislation. People ex rel. v. Wright, 388.
772 INDEX.
STATUTES. General and special laws. Continued.
8. Local laws as to courts — abrogated by new constitution. See
COURTS, 5.
Construction of statutes.
9. Whether word " may" means " must.'''' The word may in a statute
will be construed to mean must or shall, when the rights of the public
or third persons depend upon the exercise of the power given, or the
performance of the duty to which it refers. Such is its meaning in all
cases in which the public alone have an interest, or a public duty is
imposed upon a public officer. In other cases it does not always mean
shall or must. Kane v. Footh, 587.
Adoption op foreign statutes.
10. Construction. Where the statute of another State is adopted, it
will be presumed that the prior construction placed upon it by the high-
est court of such other State, is also adopted. Freese v. Tripp, 496.
STATUTE OF FRAUDS.
Part performance.
1. The taking possession of land under a verbal contract, payment
of the price and making valuable improvements thereon, will take the
case out of the operation of the Statute of Frauds, in a court of equity,
and a specific performance may be had. Fleming v. Carter, 286.
2. Believed against, in equity only. In a court of law, part perform-
ance of a verbal contract, which is required to be in writing, does not
take the case out of the operation of the Statute of Frauds. Ibid. 286.
STOCK m RAILWAY COMPANY.
Of its transfer to a purchaser.
1. Certificates of stock in a railway company, unlike negotiable
paper, can only be assigned by an act of the company, or in pursuance
of a by-law. Hall v. Rose Hill and Evanston Road Co. 673.
2. Issue of new certificate of stock. If the purchaser of stock of a
railway company applies to procure a transfer of the same to him, and
the directors order the transfer to him, and new certificates to be issued
to him, he will become an innocent holder, if he acts in good faith, and
the company will be estopped to deny that the stock thus issued is valid.
Ibid. 673.
3. Issue of new, without taking up old certificates of stock. If the
secretary of a railway company issues new certificates of stock to one
claiming to have purchased shares therein, without taking up or can-
celing the original, the new certificates will be invalid. Ibid. 673.
Certificate of stock.
4. As evidence. The certificate of stock in a railway company, issued
by its secretary, is prima facie evidence that it was regularly issued,
INDEX. 773
STOCK IN RAILWAY COMPANY. Certificate of stock. Continued.
but this presumption may be overcome by other evidence, as, by show-
ing that no order was passed for its issue. If the order was passed, and
not entered of record, that may be shown by the holder. Hall v. Mose
Hill and Evanston Road Go. 673.
SURGEONS AND PHYSICIANS.
Degree of care and skill required.
1. Whatever may be the character of the injury a surgeon is called
upon to treat, he is only held to employ reasonable care and skill — to
exercise only that degree of skill which is ordinarily possessed by mem-
bers of the profession. Utley v. Burns, 162.
2. In a suit against a surgeon to recover damages for his alleged
unskillful treatment of a broken limb, the court, at the instance of the
plaintiff, instructed the jury " that the care and skill a surgeon should
use in the practice of his profession should be proportionate to the
character of the injury he treats; and if the jury believe, from the evi-
dence, that the injury in question was severe, and that the defendant
did not treat it with such skill as its severity reasonably demanded, and
that the plaintiff was injured by the want of such skill and care, they
will find for the plaintiff:" Held, that the instruction erroneously laid
down the rule of law as to the degree of skill required of a surgeon.
Ibid. 162.
TAXES.
Appeal from judgment for taxes.
1. Only lies to Supreme Court. See APPEALS, 4.
Replevin does not lie.
2. For property taken for taxes. See REPLEVIN, 1.
TENANTS IN COMMON.
Power of one to convey, etc.
1. Tenants in common are seized of each and every part of the estate,
but it is not in the power of one to convey the whole of the estate, or
the whole of a distinct portion, or to give a valid release for injuries
done thereto, or to give a license to do any act which will work a per-
manent injury to the inheritance, or lessen the value of the estate. Mur-
ray et al. v. Haverty et al. 318.
Lien for rents received.
2. If one tenant in common receives the rents of the estate, the other
tenant can have no lien on the land for his share of the same. His
remedy is by action of account. Stenger v. Edwards, 631.
V 74 INDEX.
TENDER.
TO WHOM TO BE MADE.
1. A purchaser of land should tender the purchase money to the
vendor — the owner of the fee — if he desires to show a proper effort on
his part to execute the terms of the contract. A tender to one who
holds only a dower interest will not avail. Kimball et al. v. Tooke,
553.
Should be kept good.
2. Where the son of the defendant sold her claim for money, and
received the proceeds, which he took to her, and she caused the same
to be tendered back to the purchaser, and collected the claim herself,
and the person tendering afterwards paid her back the money, and she
was sued by the purchaser for the amount of the claim, and judgment
rendered in her favor: Held, that the judgment was erroneous, for the
reason that she did not keep her tender good by bringing the money
into court. 0" Riley v. Suver, 85.
TRESPASS.
TO REAL ESTATE.
1. Possession necessary. To maintain trespass to real property, the
plaintiff must have the actual possession, by himself or his servant, at
the time the injury is committed, except only where he is the owner,
and the land is unoccupied, or there is no adverse possession. Smith
et al. v. Wunderlich et al. 426.
2. Bight of owner to enter. The owner of lands and tenements, even
if he be wrongfully kept out of possession, has no right to enter, against
the will of the occupant, except to demand rent and make necessary
repairs. Dearlove et al. v. Herrington, 251.
By stock.
3. Who liable for. The party in possession of stock, and who has
control over them, is liable for damage done by them, in the same man-
ner as though he were the owner. The owner who hires his stock to
pasture in the field of another, when the latter puts them in a field ad-
joining one, into which they break and do damage, is not liable to the
party injured. Ozburn et al. v. Adams, 291.
AS BETWEEN OWNERS OF ADJOINING FIELDS. See FENCES, 1.
Parties defendant. See PARTIES, 3.
TROVER.
What is a conversion.
1. Where the assignee of a chattel mortgage upon a rotary boiler,
after the maturity of the debt, attempted to reduce the same to posses-
sion, in accordance with the provisions of the mortgage, and was for-
bidden to do so, by the party in possession, who had succeeded to the
title to the real estate upon which the boiler was situated : Held, that
INDEX.
775
TROVER. What is a conversion. Continued.
this would constitute a conversion of the boiler, so as to enable the as-
signee of the mortgage to maintain trover, without first making a formal
demand for it. Badger v. Batavia Paper Manufacturing Co. et al. 302.
TRUSTS AND TRUSTEES.
Whether a trust arises.
1. Redemption of land with one's own money. Where the owner of
land borrowed money, and gave an absolute conveyance of the same as
a security for its re-payment, with interest, and afterwards, getting into a
difficulty, left the country for parts unknown, and, on his way, wrote to
his father and brother-in-law to redeem the land and it should be theirs,
and the father did redeem the same on the faith of such letter, paying
all the land was then worth, taking a deed to himself, and improved
the same, and finally sold it, investing the proceeds in other land : Held,
that the father was not a trustee for the son, and, as such, liable to ac-
count for the rents arid profits, especially after a lapse of eighteen years
unexplained. Carpenter v. Carpenter, 457.
Resulting trust.
2. Whether it arises. See MORTGAGES AND DEEDS OF
TRUST.
Degree of proof required.
3. Where a promissory note is assigned to a person, upon which he
recovers judgment in his own name, and he swears that the assignment
to him was absolute, in payment of a debt, the party asserting that he
took the assignment in trust to apply the proceeds in payment of other
and different indebtedness, must show that fact by clear and satisfactory
evidence. Sturman v. Streamer et al. 188.
Trustee presumed to do his duty.
4. The presumption is, that parties charged with a trust perform
their duty, until the contrary appears ; and when an act is susceptible
of two opposite constructions, one consistent with innocence and fidelity
to duty, and the other the reverse, the law presumes in favor of inno-
cence and fidelity to duty. Munn et al. v. Burges et al. 604.
Trustee dealing with trust property.
5. A trustee is only prohibited from dealing with the trust property
for his own benefit so long as the trust continues, and as soon as the
trust ceases, he occupies the same relation to the trust property that a
stranger to the trust does, and, acting in good faith, may become the
owner of the property, by purchase or otherwise. Ibid. 604.
VARIANCE.
Between writ and declaration.
Must be taken advantage of by plea in abatement. See ABATEMENT, 2.
776 INDEX.
VENUE.
Change of venue.
1. Notice necessary. Where the term of court commenced June 10,
and a motion for a change of venue, without any previous notice, was
made on June 17, the petition stating that the knowledge of the cause
for the change did not come to the applicant until since the commence-
ment of the term, which was denied: Held, that the motion was
properly overruled. JJtley v. Bums, 162.
2. Objection to jurisdiction waived. If a defendant charged with
murder, on his own motion, procures a change of venue to another
county, and submits to a triaFin the court to which the cause is sent,
without objecting to the jurisdiction of the court trying him, or of the
court to award a change of venue, he will waive all objection to the
jurisdiction of the court. Perteet v. The People, 171.
VERDICT.
Op special verdicts.
1. When inconsistent with general finding. Where the jury find a
general verdict in favor of the garnishee, and also find, specially, that his
written answer is not true, this will not authorize the court to set aside
the general finding and render judgment against the garnishee, as the
special finding is not necessarily inconsistent with the general verdict
Dieter v. Smith et al. 168. ,
2. Not error to refuse to instruct jury to find. See PRACTICE, 5.
WAREHOUSEMEN" AND WHARFINGERS.
Op their duties and liabilities.
1. Not under any legal duty to provide for safety of teams. A person
doing a private business as a warehouseman, and keeping a private
wharf, and not acting under any license or statutory authority, is under
no legal duty to place guards on the wharf to prevent teams from fall-
ing into the water, or to provide places for hitching horses at his ware-
house, and is not liable for an injury growing out of the want of such
provision being made. Buckingham et al. v. Fisher, 121.
2. Not held to the care required of common carriers. Common carriers
are held to the highest degree of care for the safety of passengers that
is consistent with the prosecution of their business, and are made insu-
rers of property intrusted to them, except as against the acts of God or
the public enemy. But an ordinary warehouseman is only liable for
ordinary care, or such care as prudent men usually exercise over their
own property. Ibid. 121.
3. Not held to same care, in respect to approaches, as common carriers.
Railways companies are bound to provide, not only safe engines, cars,
track, and other machinery and servants, but also to provide and main-
tain safe platforms and approaches to their cars ; and carriers by water,
INDEX. 777
WAREHOUSEMEN AND WHARFINGERS.
Of their duties and liabilities. Continued.
safe approaches to their vessels; but a private warehouseman or
wharfinger is under no such obligation. He, like a merchant, black-
smith or miller, is only liable for ordinary care in the structure of his
buildings and appurtenances. Buckingham et al. v. Fisher, 121.
4. May be liable where he makes dangerous approaches. If private
warehousemen, merchants, blacksmiths, millers, or other persons en-
gaged in business, construct approaches to their places of business,
knowing the same to be defective, or have trap-doors known to be
unsafe, where their customers must necessarily pass, and such defects
are concealed, or not apparent, it seems they will be liable for any
injury resulting therefrom. Ibid. 121.
WITNESSES.
Competency.
1. Parties defending as heirs. A person who is a necessary party to
a bill, and who, if a party, would not be competent to testify as against
parties defending as heirs, falls within the meaning of the statute, and
will be treated as incompetent, the same as if he were a party to the suit.
Alexander v. Hoffman et al. 114.
2. Vendee, as against heirs of deceased owner, on bill for specific per-
formance. On bill for specific performance hy a party succeeding to
the rights of a vendee of land, against the trustee of the owner, and the
heirs of the owner, to compel the execution of a deed, the vendee,
whether a party to the bill or not, is not a competent witness to prove
payments to and conversations with the deceased owner or cestui que
trust in his lifetime. Ibid. 114.
Credibility.
3. When a witness testifies that he previously made an affidavit re-
lating to matters in dispute, simply on the information of others, without
stating that it was made on information, and it further appears that his
memory is defective, or that he is unfair and biased in his testimony,
and he is flatly contradicted in some of his most important statements,
by other witnesses, the jury will be fully warranted in disregarding his
testimony. Hall v. Rose Hill and Hvanston Road Go. 673.
4. Where an officer, who has certified to the acknowledgment of a
deed by husband and wife in proper form, testifies that the wife was
not present, and did not acknowledge the same, his testimony will be
entitled to but little weight against his certificate. Wilson v. South
Park Commissioners, 46.
5. The testimony of a private detective hired by a husband to watch
his wife, with a view of learning facts upon which to base a suit for a
divorce, will be regarded with much suspicion, especially where it does
not appear that his pay does not depend upon the successful effect of
his evidence. Blake v. Blake, 618.
7T8 INDEX.
WITNESSES. Credibility. Continued.
6. Where the story of two witnesses, sons of the complainant in a
bill for divorce, is improbable in itself, and they are shown to be under
the influence and control of their father, and very hostile towards their
mother, the defendant, and the statements of one of them out of court
is in conflict with his testimony, this will have the effect to greatly
impair and discredit their evidence. Blake v. Blake, 618.
Impeachment.
7. By contradictory statements. When a written statement, made by
a witness, which is materially different from his testimony about the
same subject matter, is shown to him on cross-examination, and an
opportunity thus afforded for explanation of the discrepancies, it is
proper to let the paper be read in evidence, as a contradictory statement,
for the purpose of impeachment. Northern Line Packet Co. v. Bin-
ninger, 571.
8. Collateral and incompetent matters. Where a witness is asked, on
cross-examination, whether he had made a particular statement before
the trial, which is incompetent, as not relating to anything testified to
by him on his direct examination, and collateral, his answer must be
taken as conclusive, and can not be contradicted by other witnesses.
Chicago, Bock Island and Pacific Railroad Co. v. Bell, Admr. 102.
Cross-examination.
9. Where the plaintiff is a witness in his own behalf, and claims
property under a chattel mortgage, and gives a history of the transac-
tion, great latitude will be allowed in his cross-examination, especially
where fraud is charged. Strohm v. Hayes, 41.
WORDS.
"May," when construed as "must." See STATUTES, 9.
WRIT OF ERROR. See APPEALS AND WRITS OF ERROR.
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