text:
    Joshua Waggonseller et al. v. Nancy Rexford.
    1. Evidence—Husband testifying fob his wife.—Agency—It was not contended that the husband was competent to testify in favor of his wife, except by reason of having acted as her agent in the transaction, and the evidence failing to show such agency, his testimony in regard to the transaction was inadmissible.
    2. Proof of agency.—The only evidence of the agency was that of the husband who testified: “ I am her agent in the transaction of her business.” He further stated that he went with his wife when she made the bargain in question, and afterwards went to see about the matter of pay. This evidence-comes far short of proving an agency on the part of the husband “ in matters of business transactions,” where the transaction was conducted by the husband as agent for the wife, and is not proof of agency sufficient to let in his testimony in regard to admissions of the deceased.
    3. Admissions to one claiming to be an agent.—To make the admissions of the deceased communicated to the husband, admissible as evidence,, the knowledge of them must have come to the husband as a necessary part and parcel of the “ business transaction ” in which he was engaged as her agent.
    Appeal from the Circuit Court of Tazewell county; the Hon. John Burns, Judge presiding.
    Mr. J. W. Dougherty, for appellants;
    that the husband was incompetent to testify, cited Robinson v. Brost 9 Chicago Legal News, 240; Trepp v. Baker, 78 Ill. 146; Hayes et al. v. Parmalee, 79 Ill. 563.

      Hr. B. S. Pbettyman, for appellee.
   Lacey, J.

This cause was tried in the Tazewell county Circuit Court at the September Term, 1877, before the court, without a jury, on appeal from the County Court, appellee being plaintiff and appellants defendants below.

The cause of action was a claim in favor of appellee against the estate of Gr. H. Rupert, deceased, appellants being his executors, originating in an agreement, as was claimed, between Gr. H. Rupert, in his lifetime, and appellee, for the boarding by appellee on account of Gr. H. Rupert, one C. J. D. Rupert, his wife and three children, who were in indigent circumstances, at a stipulated price of $20 per month when C. J. D. Rupert was absent, and $40 per month when he was present.

The trial resulted in a judgment in favor of appellee for the sum .of $220.

This appeal is taken from that judgment, and among other matters, it is assigned for error, that the court below erred in admitting the evidence of L. S. Rexford, who was the husband of appellee. On his testimony the establishment of appellee’s claipi wholly depended.

It is not contended that the evidence of L. S. Rexford was admissible to establish the claim save by virtue of chapter 51, Statute 1874, page 489. It is claimed that, by the exception contained in that section, the evidence was admissible.

After providing that husband and wife should not testify for or against each other, and after making other exceptions, it reads, “except in matters of business transactions, where the transaction was had and conducted by such married woman as the agent of her husband, in all of which cases the husband and wife may testify for or against each other, in same manner as other persons may under the provisions of this act.”

The only evidence of the agency, in any transaction by the husband, in matters of business for appellee, which was shown by the evidence of L. S. Rexford, was as follows: “I am her agent in the transaction of her business.” He further stated that he went with his wife when she made a bargain with Gr. H.' Rupert, in his lifetime, to board and house C. J. D. Rupert and his wife and family: “I went, as the agent of my wife, to see Rupert about the matter of my pay for the board of 0. J. D. Rupert and family.” Then witness states: “That Rupert told him at that time, that he had agreed with witness’ wife for boarding them at the rate of $20 per month while O. J. D. Rupert ¿vas absent, and $40 per month when he was present.” This was about the first day of December, 1874. Mrs. Rupert and her three children came to our house to board about the 10 th of June previous, and O. J. D. Rupert about the first of November, 1874. They all remained till the 10th of December, 1875. “At this same conversation, G. H. Rupert gave him an order on John D. Mclntire for money to support O. J. D. and family, on which order, at various times, Mclntire paid in the aggregate about $700. Before that time, G. H. Rupert had given him $60 for his wife on the account.”

The above was all the evidence to support the claim of the appellee, and all the evidence in regard to the agency of the husband for the wife. > ■

This evidence comes far short of proving an agency on the part of the husband “in matters of business transactions, where the transaction was conducted ” by the husband as agent for the wife.

When the witness went with his wife, at the time she made the above'alleged bargain with G. H. Rupert, he was not her agent to do anything* he simply went along; but he testified about nothing that was said or done at that time. At the time he went to see G. H. Rupert, as he alleges, as the agent of his wife, “ to see about the matter of his pay,” etc., he testifies that Rupert stated to him what the contract was. This evidence was inadmissible.

He had no agency in mating the contract; his agency at that time was confined “ to seeing about his pay.” To hold, that this would be proof of agency sufficient to let in his testimony in regard to G. H. Rupert’s admissions, would be to hold that the wife might constitute her husband her general agent, to receive admissions in regard to “ matters of business transactions,” long since passed, and that he might become her witness to detail such admissions.

The law, as laid down in the statute, never contemplated this. The testimony of appellee’s husband, which shows the time when C. J. D. Rupert and family commenced hoarding with his wife, and when they quit; evidence indispensable to her right of recovery in this case, it alone establishing the amount of her claim, was equally incompetent and improper.

There were no matters of business transactions ” connected with this testimony. The husband learned these facts in the same manner that any other individual might have learned them.

In contemplation of the statute, she could not constitute him agent simply to learn these facts.

To make such evidence admissible, the knowledge must have come to him as a necessary part and parcel of the “ business transaction ” in which he was engaged as her agent. William Scott Robinson v. Christ Brost, Leg. News of April 7, 1877, p. 240; Trepp v. Baker, 78 Ill. 146; Hayes v. Parmalee, 79 Ill. 563.

It was therefore error to admit such evidence against the objection and exceptions of appellant.

The cause is therefore reversed and remanded.

Reversed and remanded.


source: Caselaw Access Project

author: Higbee, P. J.

license: Public Domain

text:
    Mary V. Ewing v. School Directors District No. 3.
    1. Teagheb’s contract—Wrongful dismissal—Measure oe damages.—Where a person contracted with the directors of a school district to teach for a stipulated period, unless dismissed for incompetency, and in a suit to recover a balance due, after dismissal for alleged incompetency, the jury find that she was competent and was wrongfully dismissed, she is entitled to recover for the balance of the term contracted for.
    2. Question oe incompetency—Instruction.—Incompetency is a question of fact, to be found by the jury from all the evidence in the case. Neither the school law nor the contract in this case authorized the directors to dismiss her, simply because they thought her incompetent; and an instruction given for the defendants, that if the jury believe from the evidence that the plaintiff was dismissed for incompetency then she is not entitled to recover, etc., was welt calculated to mislead the jury upon this question, and therefore should not have been given.
    Appeal from the County Court of McLean county; the Hon. B. M. Benjamin, Judge, presiding.
    Messrs. Stevenson & Ewing, for appellant;
    contended that the, plaintiff was dismissed without cause, and that the instruction given for defendants misled the jury, and cited Neville v. School Directors, 36 Ill. 71; Baldwin v. Killiarn, 63 Ill. 550.
    Messrs. Tipton & Pollock, for appellees;
    that testimony that the directors acted in good faith in dismissing appellant, was admissible, cited Clift v. White, 12 N. Y. 538; Moss v. Riddle, 5 Cranch, 351; Miller v. The People, 5 Barb. 205; Griffin v. Cranston, 1 Bosw. 281; Seymore v. Wilson, 14 N. Y. 567; Forbes v. Waller, 25 N. Y. 439; Bedell v. Chase, 34 N. Y. 386; 386; Collins v. Fisher, 50 Ill. 359; Anderson v. Friend. 71 Ill. 475.
    That a judgment will not he reversed for an erroneous instruction, if justice has been done: Hardy v. Keeler, 56 Ill. 152; T. P. & W. R. R. Co. v. Ingraham, 58 Ill. 120; Graves v. Shoefelt, 60 Ill. 462; C. B. & Q. R. R. Co. v. Dickson, 63 Ill. 151; Daily v. Daily, 64 Ill. 329.
   Higbee, P. J.

The appellant was employed by appellees to teach school in said district for eight months, to commence on the 18th day of September, 1876, for which she was to be paid three hundred and thirteen dollars and seventy-five cents. The contract was in writing, and contained this -provision : “Provided, That in case the said Mary Y. Ewing shall be dismissed from the said school by the directors for gross immorality, incompetency, or any violation of this contract, or shall have'her certificate annulled or revoked by the county or State superintendent, she shall not be entitled to receive any compensation from and after such annulment or dismissal.”

Appellant taught the school under this contract three and one-half months, when she was dismissed by the directors for alleged incompetency, and paid for the time she had taught.

This suit was brought to recover for the balance of the time mentioned in the contract. The case was tried by a jury in the court below, and appellant recovered a judgment for one dollar.

From the record it seems that the principal question tried in the court below was whether the teacher was incompetent within the meaning of the contract and the school law, and therefore properly dismissed. '

The jury having found that appellant was competent, and that she was wrongfully dismissed, assessed her damages at one dollar. Appellant entered a motion for new trial, which was overruled.

The case is brought here on appeal, and errors assigned.

Ho evidence is offered in this case tending to show that appellant engaged in any other business after she was discharged and before the expiration of the time she had agreed to teach, nor that she could by any effort have obtained similar employment in that neighborhood.

On the contrary, she testifies that she held herself ready at all times before the contract expired, to teach, but that she made no effort to get another school, because it was in the middle of the school term when she was dismissed, and there were no other schools then wanting teachers.

Under this evidence, if the jury found for her at all, it was their duty, by law, to have assessed her damages at the amount fixed by the contract for the full term of eight months. Williams v. Chicago Coal Company, 60 Ill. 149; Fuller v. Little, 61 Ill. 1.

At the instance of appellee, the court on the trial gave the following instruction:

“ The court instructs the jury that if they believe, from the evidence, that the plaintiff was dismissed from the school in question by [the directors for incompetency, then she is not entitled to recover any compensation from and after such dismissal.”

Neither the school law nor this contract authorized the directors to dismiss her unless she was in fact incompetent.

She is not barred of her right of recovery simply because the directors thought her incompetent, and dismissed her for that reason, if in fact she was competent at the time. Incompetency under such circumstances is a fact to be found by the jury from all the evidence before them. This instruction was well calculated to mislead the jury, and should not have been given.

For these reasons the judgment is reversed and the cause remanded.

Reversed and remanded.


author: Lacey, J.

text:
    Frederick T. Putt v. S. G. Duncan.
    1. Warranty—Breach—Set-off of damages.—In a suit upon a note, the defense set up that the note was given upon a sale of a horse; that the horse was warranted sound; and an allegation of a breach of the warranty. The court instructed the jury, on the part of the plaintiff, that although they may believe there was a warranty of the horse, yet unless the jury believe that there was a substantial breach of warranty, the jury will find for the plaintiff, etc. This instruction was erroneous. If there was a breach of the warranty at all, which was a question for the jury to determine, the appellant was entitled to have this issue found in his favor, and if any damages resulted from the breach, they should have been set off against the plaintiff’s demand.
    2. Damages appearing after sale to third parties.—An instruction that if the jury find that the defendant sold an undivided interest in the horse within a few days, that then the defendant cannot set off any damages accruing after such sale, was well calculated to mislead the jury. In a legal sense, all damages should be considered as accruing at the time the warranty was made and the sale consummated, though the evidence and development may appear afterward. The instruction conveyed to the jury the idea that the “ damages accruing after the sale,” meant damages developed after the sale, and for which no allowance should be made
    3. Practice—Demurrer undisposed of.—An objection that a demurrer was not disposed of, comes too late in this court. By going to trial without issue joined on demurrer, it will be held to have been waived.

      4. Pbactice—Objection to vabiance.—An objection that the note in evidence varied from the one set out in the declaration, cannot be made for the first time in this court.
    Appeal from the Circuit Court of Ford county; the lion. Owen T. Beeves, Judge, presiding.
    Messrs. Gray& Swan, for appellant;
    that the defendant was entitled to damages, if a breach of warranty was proved, and the instruction upon this point was erroneous, cited The Alton, etc. R. R. Co. v. Northcott, 15 Ill. 49; Taylor v. Beck, 13 Ill. 376.
    The court erred in proceeding to trial with a demurrer undisposed of: Moore v. Little, 11 Ill. 549; Richeson v. Ryan et al. 15 Ill. 13; Sammis v. Clark, 17 Ill. 544; Chapman v. Wright, 20 Ill. 120.
    Hpon the question of unsoundness: 1 Parsons on Contracts, 473.
    The sixth instruction was calculated to mislead the jury, and therefore erroneous: Aurora Fire Ins. Co. v. Eddy, 55 Ill. 213; Reynolds v. Lambert et al. 69 Ill. 495; C. B. & Q. R. R. Co. v. Gregory, 58 Ill. 226.
    The verdict is clearly against the evidence: Ill. Cent. R. R. Co. v. Chambers, 71 Ill. 519.
    Messrs. Tipton & Pollock, for appellees;
    that where the evidence is conflicting, the verdict ought not to be set aside, cited City of Chicago v. Torgerson, 60 Ill. 200; City of Galesburg v. Higley, 61 Ill. 287; Fitch v. Zimmer, 62 Ill. 126; Stenger v. Swartout, 62 Ill. 257; Peru Beer Co. v. First Nat. Bank, 62 Ill. 265; Cass v. Campbell, 63 Ill. 259; Chapman v. Stewart, 63 Ill. 332; C. A. & St. L. R. R. Co. v. Stover, 63 Ill. 358; Vogt v. Buschman, 63 Ill, 521; Tucker v. Watte, 64 Ill. 416; McNellis v. Pulsifer, 64 Ill. 494; Chicago City Ry. Co. v. Young, 62 Ill. 238.
    The objection of'variance comes too late in this court: Doyle v. Douglass Machinery Co. 73 Ill. 273; Thompson v. Hoagland et al. 65 Ill. 310.
    The eighth instruction was correct as given; a substantial compliance with the contract of sale was sufficient: Hovey v. Pitcher, 13 Mo. 191; Chambers v. Jaynes, 4 Pa. St. 39; Rees v. Smith, 1 Ohio, 124.
    The objection of non-joinder in demurrer cannot be raised for the first time in this court: Hopkins v. Woodward, 75 Ill. 62; Belleville Nail Co. v. Chiles, 78 Ill. 14; Strohm v. Hayes, 70 Ill. 41; Davis v. Ransom, 26 Ill. 100; Parker v. Palmer, 22 Ill. 489.
   Lacey, J.

This was a suit by appellee against appellant, brought on a promissory note, dated March 25, 1876, for $500.

The defense set up to the note was, that it was the balance of $1,500 agreed to be paid by appellant to appellee for the purchase of a stallion horse called “Wonder.” That the horse was warranted to be sound except a small pimple on the leg, and that would not hurt him, and that the horse was entirely worthless; also j>lea of set-off for the $1,000 paid.

The evidence shows that Charles Putt purchased one-half interest in the horse two days after the purchase from appellee, Charles Putt agreeing to pay $500' for one-half interest. The evidence in this case tended strongly to show that the horse was warranted as claimed by appellant; that he was unsound at the time of the sale, being affected with laminitis, and bog-spavin, and was thick winded; that he was worth greatly less than he would have been if as good as warranted. That the unsoundness of the horse grew worse in consequence of disease contracted before sale to appellant, and that the greatest depreciation in his value became apparent after Charles Putt purchased the half interest, The issues in the cause were tried by a jury.

On the trial of the" cause, the court, against the objection of appellant, gave for ajDpellee to the jury the following instructions:

6. “ The court instructs the jury for the plaintiff that, if they believe from the evidence that the defendant sold an undivided interest in the’ horse within a few days, that then the defendant cannot in any event set-off any damages accruing after said sale.”

8. “ The court further instructs the jury that, although they may believe that there was a warranty of the horse, yet, unless the jury further believe from the evidence that there was a substantial breach of warranty, the jury wilhfind for plaintiff for the amount of the note and interest • to this date.”

The giving of the above instructions, among other matters, is assigned for error.

We are of the opinion that the giving of the eighth instruction was clearly error, when given in this case under the state of the evidence. If there was a breach of the warranty at all, which was a question for the jury to determine, the appellant was entitled to have this issue found in his favor, and if any damages resulted from the breach, however small, it should have been set-off against appellee’s demand. W. J. Estop et al. v. W. H. Fenton et al. 66 Ill. 467; Taylor v. Beek, 13 Ill. 49.

The sixth instruction, which informed the jury that all damages accruing after the sale of the horse, to Charles Putt could not be set-off, was well calculated to mislead the jury. In a legal sense, all damages should be considered to accrue at the time the warranty was made and the sale consummated, but the evidence and development of the injury may appear afterward.

Yet we think that the instruction was well calculated to convey the idea to the jury that the words “ damages accruing after the said sale,” meant damages developed after the sale, and that they should not allow any damages which became first apparent after the sale of the half interest to Charles Putt.

The instruction cannot by any reasonable construction mean, as is contended by counsel for appellee, that damages should not have been allowed for injuries arising from causes originating after the sale to Charles Putt.

The error assigned that the note varied from the one set out in the declaration is not well taken; such objection cannot prevail if made for the first time in this court. Doyle v. Frank Douglas Machine Co. 73 Ill. 273; Wm. Thompson v. George Hoagland, 65 Ill. 310.

Also the objection raised that the demurrer to the eighth replication was not disposed of, comes too late in this court. There should have been issue joined on the demurrer in the court below. By going to trial without this, the appellant waived the benefit of his demurrer. Hopkins v. Woodward, 75 Ill. 62.

The court below should have granted a new trial, and for not having done so, this cause is reversed and remanded.

Reversed and remanded.


author: Davis, J.

text:
    Jesse Lockhart v. Cyrus Hullinger.
    Promissory note—Wager on election void.—A promissory note, payable on condition that a certain person would be elected to a certain office, is void, as being against public policy.
    Appeal from the Circuit Court of Macon county; the Hon. C. B. Smith, Judge, presiding.
    Mr. J. S. Post for appellant;
    cited Vischer v. Yates, 11 Johns. 21; Allen v. Herne, 1 T. Rep. 56; Gregory v. King, 58 Ill. 169.
   Davis, J.

This was an action, originally commenced before a justice of the peace by Hullinger against Lockhart, and taken by appeal to the Circuit Court of Macon county, in which court a judgment was rendered against Lockhart for $77.20 and costs.

The action was brought on a written instrument, of which the following is a copy:

“Niantio, Illinois, Sept. 23,1876.

“ On the election of R. B. Hayes to the office of President of the Hnited States in 1876, I promise to pay Cyrus Hullinger seventy-five dollars, and if not elected, this note is null and void.

“ Jesse Locehiart.”

On the trial the only evidence offered was the above written instrument, and the only question presented by the record is, whether on such an instrument the plaintiff below was entitled to recover the judgment rendered in his favor.

The law is well settled in this State that wagjrs depending on the result of a Presidential election are against public policy and void.

Instruments similar to the one sued on have been held, to all intents and purposes, bets on an election, and therefore void on their face. Gordon v. Casey, 23 Ill. 70; Guyman v. Burlingame, 36 Ill. 201; Gregory v. King, 58 Ill. 169.

The instrument sued on -in this case being void, no recovery could be had upon it.

The judgment must be reversed.

Judgment reversed.


text:
    Town of Pana et al. v. Charles E. Lippincott et al.

      1. Municipal corporations—Power to make subscriptions to railroads.—Municipal corporations are created by the Legislature for governmental purposes only, and have no power to engage in commerce or to make subscriptions or donations to railroads, unless the same is conferred by statute; and when such power is given, it must be clearly conferred and strictly pursued.
    2. Vote for subscription.—Where the statute authorized a town to-subscribe to the capital stock of a railroad, upon a vote taken for that purpose at a regular town meeting, a vote taken at a special meeting called for that purpose, will not confer authority upon the town to make such subscription.
    3. Consolidation of companies.—Where a statute authorized a town to subscribe a stated amount to each of two proposed railroads, the consolidation of the two companies entitled the new company to the benefits only of such donation as the town could make to either of the former companies.
    4. Bonds issued without authority—Recitals—Innocent purchaser.—One who purchases a municipal bond issued without authority, or in violation of law, is not an innocent purchaser. The law makes it his duty to look to the authority under which the officers of the municipality have acted. He may rely upon the recitals in the bonds for some purposes, hut not for proof of the authority of the agent or officer of the corporation. Where there is want of authority, such recitals are not binding on the principal.
    5. Payment of interest no ratification.—The bonds being issued without authority, are void; and the town has no power to ratify them by payment of interest, so as to bind the taxpayer. An act defectively done under authority may be ratified, but one performed without authority cannot.
    Error to the Circuit Court of'Christian county; the Hon. H. M. Yandeveer, Judge, presiding.
    Messrs. Henry & Dote and Mr. J. 0. MoQuioe, for appellants;
    upon the construction that should he given to the several statutes and charters, cited McCarty v. Orphan Asylum, Soc. 9 Cow. 506; Brown v. Lease, 5 Hill, 226; Card et al. v. McCaleb, 69 Ill. 314; City of Chicago v. Quimby, 38 Ill. 274; Hirn v. State of Ohio, 1 Ohio St. 21; Brow v. Commissioners, 9 Harris (Pa.) 37; Town of Ottawa v. County of LaSalle, 12 Ill. 339; Supervisors, etc. v. Campbell et al. 42 Ill. 490; C. D. & V. R. R. Co. v. Smith et al. 62 Ill. 268; Dwarris on Statutes, 513; 1 Bishop on Criminal Law, 178.
    The town having authority to donate only $30,000, an attempt to donate $100,000 would render the whole proceeding void: Robinson v. Harlan, 1 Scam, 237; Powell v. North Mo. R. R. Co. 42 Mo. 63.
    As to the effect of the-consolidation of companies: Brice on Ultra Vires, 539; Clearwater v. Meredith, 1 Wall. 25.
    Distinction between subscription and donation: Town of Concord v. Portsmouth Savings Bank, 2 Otto, 625.
    The authority of municipal corporations to issue bonds must be strictly pursued: Harding v. R. R. I. & St. L. R. R. Co. 65 Ill. 90; Jackson County v. Brush, et al. 77 Ill. 59; Chestnutwood et al. v. Hood et al. 68 Ill. 132.
    Every step required to confer the power or create the indebtedness must be shown to have been taken in strict conformity with the statute: The People v. Hulbert, 46 N. Y. 113; The People v. Smith, 45 N. Y. 772; Sharp v. Speir, 4 Hill, 79; Beaty v. Knowler, 4 Pet. 152; Bartholomew v. Bently et al. 1 Ohio St. 41; Bank of Chillicothe v. Swayne, 8 Ohio, 286.
    Such authority must be shown affirmatively: Wise v. Withers, 3 Cranch, 331; Walker v. Turner, 9 Wheat. 549; Suydam v. Keys, 13 Johns. 444; Bridge v. Ford, 4 Mass. 641; Smith v. Rice, 11 Mass. 507; Brooks v. Adams, 11 Pick. 441.
    If the mode prescribed by statute for issuing the bonds is not complied with in all material respects, the bonds are void: People v. Tazewell County et al. 22 Ill. 147; Supervisors, etc. v. The People, 25 Ill. 181.
    If the election be held without warrant of law, the whole proceeding is void: Clark v. Hancock County, 27 Ill. 305; Force et al. v. Batavia, 61 Ill. 99; Harding v. R. R. I. & St. L. R. R. Co. 65 Ill. 90.
    A corporation can only exercise those powers granted by its charter: Creed v. Commercial Bank, 11 Ohio, 493; Bank of Chillicothe v. Swayne, 8 Ohio, 287; Town of Petersburg v. Mappin et al. 14 Ill. 193.
    The right of corporate, or local taxation is by the Constitution vested in the corporate authorities, and the legislature cannot confer this power on others: Harward v. St Clair Drainage Co. 51 Ill. 130; Marshall v. Silliman et al. 61 Ill. 218; Wiley et al. v. Silliman et al. 62 Ill. 170; Hessler v. Drainage Com’rs 53 Ill. 105; Lovingston v. Wilder, 53 Ill. 302; The People v. Mayor of Chicago, 51 Ill. 18; Town of Elmwood v. Marcy, 2 Otto, 293; Flack v. Hughes et al. 67 Ill. 384.
    The bonds were issued for a private purpose, and hence illegal: Loan Asso’n v. Topeka, 20 Wall. 660; Sharpless v. Mayor etc. Philadelphia, 21 Pa. St. 147; Hanson v. Vernon, 27 Iowa, 28; Allen v. Inhabitants of Jay, 60 Me. 127; Whiting v. Fond du Lac R. R. Co. 25 Wis. 188; Commercial Bank v. Iola, 2 Dill. 353; Lowell v. Boston, 111 Mass. 454; State v. Osawkee Township, 14 Kan. 418; Sherlock et al v. Winnetka, 68 Ill. 530.
    A distinction is made between the law of taxation and the law of eminent domain: Cooley on Taxation, 76.
    Where private property is sought to be taken, the party claiming the right must show a strict conformity with the statute: Pierce v. Madison & Ind. R. R. Co. 21 How. 442; McGreggor v. Deal & Dover R. R. Co. 16 L. & Eq. 180.
    The grant of power to a municipal corporation is to be strictly construed: Queen v. Ellis, 6 Q. B. 501; Com’rs of Hamilton Co. v. Mighels, 7 Ohio St. 110; Tradwell v. Commissioners, 11 Ohio St. 190; Starin v. Genoa, 23 N. Y. 449; Dillon on Municipal Corporations, § 424.
    The election was illegal and the subscription a nullity: People v. Town of Santa Anna, 67 Ill. 57; People v. Town of Laenna, 67 Ill. 65; Force v. Batavia, 61 Ill. 99; Trustees v. The People, 63 Ill. 299; Harward v. St. Clair Draniage Co. 51 Ill. 130; Supervisors, etc. v. People, 25 Ill. 181; Ryan v. Lynch, 68 Ill. 160.
    The law clothed the board of town auditors with power to authorize the issuing of the bonds, and this power could not be delegated by them to others: Clark v. Supervisors, etc. Hancock Co. 27 Ill. 305; Jackson County v. Brush etal. 77 Ill. 59; Treadwell v. Commissioners, 11 Ohio St. 190; Marshall et al. v. Silliman, 61 Ill. 218; Lovingston v. Wilder, 53 Ill. 302; Harward v. St. Clair Drainage Co. 51 Ill. 130; Hessler v. Drainage Co. 53 Ill. 105; People v. Mayor of Chicago, 51 Ill. 17; Wiley v. Silliman, 62 Ill. 170; Elmwood v. Marcy, 2 Otto. 292.
    The new Constitution creates no new rights, and confers no new powers: County of Moultrie v. Savings Bank, 2 Otto, 631; Jackson County v. Brush et al. 77 Ill. 59; Town of Concord v. Portsmouth Savings Bank, 2 Otto, 625.
    Where there is want of corporate authority, the recitals in the bonds are not conclusive: The Floyd Acceptances, 7 Wall. 666; Marsh v. Fulton County, 10 Wall. 676; Loan Asso’n v. Topeka, 20 Wall. 660; Elmwood v. Marcy, 2 Otto, 289; Concord v. Savings Bank, 2 Otto, 625; Harshman v. Bates County, 2 Otto, 572; Marshall County v. Cook, 38 Ill. 44; Bissell v. Kankakee, 64 Ill. 249; Schuyler County v. The People, 25 Ill. 181; Supervisors v. Clark, 27 Ill. 305; Ryan v. Lynch, 68 Ill. 160.
    A purchaser of municipal bonds must, at his peril, inquire into the power of the corporation to issue them: Marsh v. Fulton Co. 10 Wall. 676; Baltimore v. Reynolds, 20 Md. 1; Hodges v. Buffalo, 3 Comstock, 430; Mussey v. Beecher, 3 Cush. 519; Livingston Co. v. Weider, 64 Ill. 427.
    A purchaser of negotiable paper is chargeable with knowledge of such facts as he might ascertain by ordinary diligence: Rupert et al. v. Mark, 15 Ill. 540; Morrison v. Kelley, 22 Ill. 610; McConnell v. Reed, 4 Scam. 117; Merrick v. Wallace, 19 Ill. 486; Parsons v. Amour, 3 Pet. 428; Stainer v. Tysen, 3 Hill, 279; Atwood v. Mounings, 7 B. & C. 278; Lowell, etc. Bank v. Inhabitants of Winchester, 8 Allen, 109; Mechanics’ Bank v. N. Y. & N. H. R. R. Co. 3 Kernan, 599; Schooner Freeman v. Buckingham, 18 How. 182; Marshall County v. Cook, 38 Ill. 44; N. Y. Life Ins. Co. v. Beebe, 3 Seld. 364; Gould v. Town of Sterling, 1 Am. Law Reg. 295; Clark v. City of Des Moines, 6 Am. Law Reg. 148.
    Negotiability will not validate obligations not binding for want of power to issue them: Gould v. Town of Sterling, 1 Am. Law Reg. 295; Hull et al. v. Marshall County, 12 Iowa, 142; Treadwell v. Commissioners, 11 Ohio St. 190.
    Want of corporate power cannot be supplied by the unauthorized representations of municipal officers: Marshall County v. Cook, 38 Ill. 44; Marsh v. Fulton County, 10 Wall. 676; Bissell et al. v. Kankakee, 64 Ill. 249; Harding v. R. R. I. & St. L. R. R. Co. 65 Ill. 90; Dart v. Hercules, 57 Ill. 446; Rochester v. Alford Bank, 13 Wis. 488; Peterson v. Mayor, etc. 17 N. Y. 449; Clark v. City of Janesville, 10 Wis. 136; Angell & Ames on Corporations, 48.
    The doctrine of estoppel does not apply where the instrument creating the estoppel is void: Treadwell v. Commissioners, 11 Ohio St. 191; Knowles v. Gas Light and Coke Co. 19 Wall. 58; Rochester v. Alford Bank, 13 Wis. 488.
   Higbee, P. J.

This is a bill in chancery, to enjoin the collection of a special tax levied to pay the interest on one hundred thousand dollars in bonds, issued by said town to the Springfield and Illinois Southeastern Railway Company, and to have the bonds declared void.

An injunction was issued, and upon answer filed the same was dissolved and the bill dismissed. The company to which these bonds were issued was formed by the consolidation of two other companies—the Pana, Springfield and Northwestern Railway Company, and the Illinois Southeastern Railway Company—both of which had been created by special charter granted by the legislature of this State, and all the rights, privileges and powers of the new company are derived from these charters and subsequent amendments thereto. No legislation was ever passed in favor of the new company after the consolidation toolc place.

On the 30th fay of April, 1870, and after the consolidation^ a special town meeting was held in the town of Pana, presided over by a moderator, at which it was voted to donate to the said Springfield and Illinois Southeastern Railway Company, one hundred thousand dollars in the bonds of said town, to be issued upon certain conditions named in the submission, to ran twenty years, and to bear interest at the rate of eight per cent, per annum, payable semi-annually. In 1873 the bonds ($100,-000) were issued by the supervisor and town clerk, and delivered to the railroad company, since which time interest has been paid on said bonds for three years, with money levied and collected in the town for that purpose.

It is insisted that the laws under which these bonds were donated and issued limited the right of the town in making-such donation to said company to a sum not exceeding thirty thousand dollars, and that they were not voted at such an election as was required by law, and that for these reasons the bonds are void.

Municipal corporations like the town of Pana, are created by the Legislature for governmental purposes only, and have no. power to engage in commerce, or to make subscriptions or donations to railroads, unless the same is conferred by statute, and when such power is given by statute, it must be clearly conferred and strictly pursued. Harding v. R. R. I. & St. L. R. R. Co. 65 Ill. 92.

The statute authorizes the consolidation of railroad companies,, and provides that “ said companies, when so consolidated, shall have all the powers, franchises and immunities which said separate companies shall have by virtue of their separate charters before si;ch consolidation.” Had the Legislature authorized the town of Pana to donate $100,000 to either of the original companies before the consolidation? If not, such a donation to the new company, after the consolidation, would be void for want of authority. The consolidation conferred no additional power upon the town; it only entitled the new company to the benefit of whatever donation the town was authorized to make to either of the former companies.

The act incorporating the Pana, Springfield and Northwestern E. E. Co., was passed February 16,1865. It authorized any town in Sangamon county to subscribe to the capital stock of said company in any sum not exceeding fifty thousand dollars each, upon a vote to be taken for that purpose, but no such vote to be taken unless at a regular election for town and county officers.

By an amendment to the charter, which went into force April 16, 1869, any town on the line of said road was authorized to subscribe to the capital stock of said company in any sum not exceeding fifty thousand dollars, upon a vote to be taken as required by the original charter. Neither this charter or the amendment conferred upon the town of Pana the power to denote to the company §100,000. Nor did they authorize a voté for subscription to be taken at a special town meeting called for that purpose.

It is recited on the face of these bonds that “ this bond is one of a series amounting to §100,000, issued by virtue of authority conferred by an act of the General Assembly of the State of Illinois, entitled an act to incorporate the Illinois Southeastern Eailway Company, Approved February 24, 1869. It also recited an election held April 30, 1870. The act referred to to in the bond, incorporated the Illinois Southeastern Eailway Company, and authorized towns on the line of the road, to donate to said company any amount not to exceed thirty thousand dollars, provided the same be first voted at an election to be held, canvassed and returned as other regular town elections. No election to be held unless the directors of the road should first file with the county clerk and the town clerk, a proposition to the voters, and then the vote was to be for and against the proposition; notice of the election to be given for twenty days, and if the proposition was adopted, the amount donated was to be collected by taxation, and paid to the directors of the road in money.

The amendment to this charter was passed February 24,1869. It contained no express repeal of the §30,000 limitation in the former act, but provided that any village, city, county or township organized under the township organization law of this State, along or near the route of said railway or its branches, or that are in any wise interested therein, may in their corporate capacity subscribe to the stock of said company or make donation to said company to aid in constructing or equipping said railway. It authorized an election upon a petition of twenty legal voters, required thirty days’ notice of election, and required the same to be held, conducted and returns thereof made as provided by law for general elections in this .State, dispensed with registration of voters, and in case of a donation it authorized the issuing of bonds to run not exceeding twenty years, and fixed the interest they should bear. Did the latter act repeal the restriction in the former ? If so, the repeal must be implied from repugnancy between the two statutes. Repeals by implication are not favored by law, and are never allowed when the two statutes can be reconciled and construed together. Bruce v. Schuyler, 4 Gilm. 271; City of Chicago v. Quimby, 38 Ill. 274.

The former act says, counties and towns may donate to the company; the latter act that villages, cities, counties and towns may subscribe stock or donate to the company; the former act, that towns shall not donate exceeding §30,000; the latter act is silent as to the amount, and is in no sense antagonistic to the former. Both are upon the same general subject, and must be construed together. The first act plainly fixed the amount which ■ might be donated by a town, and the amendment does not change it. It is also a well settled rule of construction that a subsequent statute which is general, does not abrogate a former statute which is special. Town of Ottawa v. County of LaSalle, 12 Ill. 341; Supervisors v. Campbell, 42 Ill. 492.

Again it is stated that, although the provisions of two statutes are different, one of them general in terms, but containing no negative words, such general provision will not repeal the prior one, which is particular. Brown v. Commissioners, 9 Harris, p. 37; Haywood v. Mayor, 12 Georgia, 404; 1 Bishop’s Criminal Law, 178.

The original act was particular and definite in its terms upon a question of the greatest importance. The amendment simply extends the right of donation to other municipalities in general terms. To ascertain the legislative intent in passing an amendment to a former law, we must know what the original act was, for what cases it provided, what the defect in it, and how reached and changed by the amendatory act, what the mischief and what the remedy. Jackson v. Warren, 32 Ill. 339. In this case, under the old law, the right to donate to the company was limited to counties and towns/ the amendment extended the right of donating to villages and cities. Under the old law an election was inaugurated by a proposition in writing from the directors of the company; under the new law by a petition of twenty legal voters. The notice of the election by the old law was to be twenty days; by the amendment, thirty days. Registration was dispensed with by the amendment, and instead of an election to be held as “ other town elections,” the amendment required it to be held, conducted, and returns made as in cases of general elections under the laws of the State. Instead of cash payment, the amendment authorized bonds to be issued, fixed the time they should run and the interest they should bear. These are the important changes made in the original charter by the amendment, and show the object of its passage. The limitation upon the amount which a town could donate was an important part of the law, placed there for the protection of the tax-payers, many of whom were liable to be compelled to help pay the sum donated without their consent and against their will, and we cannot hold that the amendment authorizing villages, cities, counties and towns to make donations to the company, was ever intended to repeal it, and thereby enable these municipalities to donate an unlimited amount to the railroad company. In the case of Harding v. R. R. Q. & St. L. R. R. Co. 65 Ill. 90, there were two acts; the first limited the right of the counties named (one of which was Warren county) to a subscription not exceeding $100,000, and required thirty days’ notice of an election. The second act (unlike this) provided that said counties “ are authorized, and empowered to subscribe to the capital stock in such an amount as said counties shall determine or deem best and proper,” (See private laws 1869, vol. 3, p. 368), and that the question of subscription should be submitted to the voters “in such manner as the county authorities might determine.” The only question passed on by the court was whether the last provision repealed the express provision in the former law requiring the thirty days’ notice.

In the opinion of the court by Justice Thornton, we find the following language: “ In the first, a special notice was required and the number of days for which it should be given and the manner of its publication were plainly fixed. In the second act there is nothing necessarily antagonistic to these requirements. The only words inconsistent with the continued existence of the first provision are the following: ‘ Such question shall be submitted in such manner as the county authorities may determine.’ They do not by necessity refer to the time of notice, and as both acts have reference to the same subject matter and are for the benefit of the same railway, the language of the 10th section may properly and should be construed to have reference to the conditions to be inserted in the notice as to the amount of subscription, the period in which the bonds would mature, and the rate of interest.”

Less than thirty days’ notice, as required by the original act, was given, and the court for that reason, held that the county had no authority to issue the bonds. Apply the reasoning in this case to the case under consideration and with what show of reason can it be contended that the limitation in the former act is repealed by the amendment? Here the amendment has no reference whatever to the amount of donation, nor does its general scope and object conflict with the limitation in the former law. But it is contended that the last act is auxiliary to and in aid of the former law, and should be treated as cumulative, and that a compliance with either would be sufficient.

We cannot adopt this reasoning. The latter act is an amendment to the former; they both refer to the same subject matter, and so much of the former as is not repealed is in full force, the whole forming but one law, complete in itself, and clearly defining the only terms and conditions upon which municipal corporations could make donations to the road.

We are also of opinion that the special act under which the donation was voted, did not authorize the vote to be taken at a special town meeting called for that purpose, and presided over by a moderator, instead of an election held by the judges appointed by law for that purpose. The People v. The Town of Santa Anna, 67 Ill. 61; The People, etc. v. The Town of Laenna, 67 Ill. 65.

Put it is insisted that the town having issued these bonds, and paid interest on them "for several years, with funds levied and collected for" this purpose, it is now too late to question their validity, in the hands of persons who have purchased them in the market, for a valuable consideration.

Whether this would be a sufficient answer to the manner of voting the bonds, we do not decide. If we are correct in our construction of the law, these bonds were not only issued without authority of law, but in violation of the very law recited on their face, as the authority for issuing them. There is a wide difference between an act defectively performed under authority, and an act performed without authority, or in violation of law. The former may become binding by ratification or acquiescence, but the latter is absolutely void. The town had no authority to issue the bonds, nor has it any authority to ratify them, so as to bind the tax-payers. The legislature never authorized the donation of $100,000 to be made in any manner whatever, and "without legislative authority the town possesses no power to create this debt, and the bonds are therefore void.

One who purchases a municipal bond, issued without authority, or in violation of law, is not an innocent purchaser. The law makes it his duty to look to the authority under which the agents or officers of the town have acted, and if he neglects this duty he does so at his peril, and cannot call upon a court of equity to relieve him against his own negligence. He-may rely upon the recitals in the bond for some purposes, but not for the proof of the authority of the agent. Where" there is a want of authority, such recitals are not binding on the principal. The Floyd Acceptances, 7 Wall. 666; Marsh v. Fulton County, 10 Wall. 676; Loan Association v. Topeka, 20 Wall. 660; Elmwood v. Marcy, 2 Otto, 289; Township of Concord v. Savings Bank, 2 Otto, 625; Harshman v. Bates County, 2 Otto, 572; Marshal County v. Cook, 38 Ill. 51; Bissell v. City of Kankakee, 64 Ill. 249; Schuyler County v. The People, 25 Ill. 18; Clark v. Supervisors Hancock County, 27 Ill. 305; Baltimore v. Reynolds, 20 Md. 1; Hodges v. Buffalo, 3 Comstock, 430; Livingston v. Weider, 64 Ill. 427; Dillon on Municipal Corporations, Sec. 372.

The decree dissolving the injunction and dismissing the hill is reversed and the cause remanded, with directions to grant the prayer of the bill.

Decree reversed.


text:
    Home Manufacturing Company v. George Gough et al.
    1. Executory contract—Bond for a deed—Remedies.—A contract for the sale of land, a bond being given for a deed, is an executory contract; the fee remaining in the vendor as security for payment of the purchase money, and after demand of payment and refusal, the vendor may treat the contract as .rescinded, and recover the possession by an action of ejectment, or he may sue for specific performance.
    2. Relation oe vendor and vendee.—In equity the vendor as to the land, becomes a trustee for the vendee, and a vendee as to the purchase money, is a trustee for the vendor. The vendee after payment or tender of the purchase money, may compel the vendor to convey according to the contract; and on the other hand the vendor may compel a specific performance and pay nient of the money. In equity the remedy is mutual.
    3. When specific performance should be compelled.—In all cases where the contract is free from fraud, oppression or other defect, courts of equity have enforced the specific performance of the contract, and the court erred in refusing so to do in this case.
    Emm?, to the Circuit Court of Morgan county; the Hon. Cybus Eplee, Judge, presiding.

      Messrs. Dummee, Beown & Bussell, for plaintiff in error;
    that a specific performance should have been decreed, cited Story’s Eq. Jur. §§ 790, 1231.
    The defendant is estopped from denying that there is a lien to secure payment of the Malinda note: Tresevant v. Bettis, 10 Cent. Law Jour. 221; Campbell v. Campbell, 3 Head, 328; Walls v. Ward, 3 Swan, 648; Atlantic Dock Co. v. Leavett, 54 N. Y. 35; Brown v. Ricketts, 3 Johns. Ch. 553; Bigelow on Estoppel, 259, 503.
    Messrs. Ketchum & Taylob, for defendants in error.
   Higbee, P. J.

The substantial facts, as disclosed by the record in this case, are, that on the 11th day of December, 1867, the plaintiff in error, a corporation, executed and delivered to defendant Gough a bond for a deed to a town lot, conditioned that if Gough would pay to plaintiff in error his due bill of that date for $500, payable to said plaintiff in error, and also pay to defendant Malinda a certain note for $1,000, given to him by said Gough, Uovember 7, 1867, payable one year after date, on which note plaintiff in error was security for said Gough, then plaintiff would convey to Gough said lot. Defendant Gough, at the time said bond was executed, went into possession of said lot, and has continued there ever since. The note to Malinda was given for money borrowed of him by Gough and used in building a house on the lot sold him by plaintiff in error. Some payments had been made on this note before the bill was filed, but a part of the money still remaining unpaid on this note, and nothing having been paid on the due bill plaintiff in error files this bill for a specific performance of the contract, asking the court to find the amount due on both said note and due bill, and subject the premises to sale for the payment of the same. The answer of defendant Gough admits the making the bond as stated, the giving the notes and taking possession of the premises, but insists that the notes were paid by services rendered by him to complainant under a special contract. Malinda was made a party defendant and defaulted, and on the final hearing of the earse, the court by its decree found the facts above stated, and that there was due to complainant on the due bill $983.32, and to Malinda on his note $442.21; and ordered the amount due complainant to be paid, with costs, within forty-five days, or, in default of payment, that the master in chancery sell the premises. That as to the sum of $442.21, due to Malinda, complainant is entitled to no relief. Orders that from the proceeds of the sale the master pay, first, the costs; second, the sum due complainant with interest; third, the balance (if any) to defendant Gough.

Complainant excepted to the decree, and now assigns for error the ruling of the court in refusing the relief asked in reference to the sum due on the Malinda note.

The evidence fails to show that defendant Gough had paid these notes, or either of them, by his services as claimed in his answer, and we think the court correctly found and stated the amount due on each. It only remains then, to determine the relief to which complainant is entitled.

The contract is executory, the fee remaining in the vendor, as a security for the payment- of the purchase money, and after demand of payment and refusal by vendee, the vendor may treat the contract as rescinded, and recover the possession by an action of ejectment, or he may resort to a court of equity for a specific performance of the contract. In equity, the vendor, as to the land, becomes a trustee for the vendee, and the vendee, as to the purchase money, a trustee for the vendor. Story’s Equity Jurisprudence, sec. 789.

The vendee, after the payment or tender of the purchase money, may come into a court of equity to compel the vendor to convey the premises, according to the terms of his contract. On the other hand, the vendor may come into a court of equity for a specific performance of the contract on the other side, and to have the money paid; for in cases of specific performance the remedy is mutual.

At the instance of the vendor, the court may decree that the vendee pay the purchase money, or that he surrender up the possession, or that the land be sold for the payment of the sum found due. Guided by these principles, it does not seem that there should be much difficulty in fixing the rights of the parties under this contract. Courts are not to make contracts for the parties, but simply to cause them to be executed according to the intention of the parties.

The complainant had agreed that upon Gough paying it $500 and the note which Malinda held against Gough, and upon which complainant was security, that it would convey to him the land; and Gough agreed, on his part, that he would make these payments in consideration of the conveyance.

Complainant holds the legal title as its security, and cannot be compelled to part with it until the terms of the purchase are complied with. But it is urged by defendant Gough that the note to Malinda was given for borrowed money, and not as a part of the purchase money, and that in any event the taking personal security by Malinda waived his right to a lien upon the premises.

Where the vendor has parted with his title and seeks to charge the property conveyed with a vendor’s lien this defense would be deemed sufficient, but that is not this case. Here the contract is executory. Gough agreed to pay both these notes as the consideration for a conveyance, complainant to retain the legal title as a security for the performance of his agreement. Complainant was security on the Malinda note and interested in its payment, and equity will not permit Gough to retain the property and refuse to comply with the terms upon which he received it.

In all such cases, when the contract is free from fraud, oppression, or other defect, courts of equity have enforced the specific performance of the contract, and we think the court erred in refusing to do so in this case. The decree is therefore reversed and the cause remanded, with directions to the court to enter a decree requiring complainant to execute to Gough a deed according to the terms of the contract, and place it in the hands of the master in chancery. That Gough pay all costs and the amount found due both to complainant and Malinda, and that upon the payment to Malinda he surrender up to Gough his note, to be canceled, and that upon the payment of the sums found due, both to complainant and Malinda, and all costs, the master deliver to Gough the deed. If these sums and costs are not paid within a time to he fixed by the court, then the premises to be sold and the proceeds applied, first, to the payment of all costs; second, the amount due to both complainant and. Malinda, and third, the residue (if any) to defendant Gough.

Reversed and remanded.


text:
    Peter Carroll v. City of Jacksonville.
    1. Appeal—Filing bond—Presumption as to time of filing.—An appeal from the judgment of a justice of the peace was taken, and bond filed. The only evidence that the bond was filed within the statutory time, was the affidavit of appellant that it was so filed. In the absence of contradictory evidence upon this point, the proof was sufficient. The entry of the justice upon his docket that “appeal was allowed," though without date, is also sufficient proof that the bond was filed in time, for the reason that the presumption of law is that every public officer will do his duty.
    2. Amendment of bond.—Although the bond for appeal is defective in form, that is not of itself a good reason for dismissal of the appeal. The statute makes it the duty of the Appellate Court to allow the appellant to amend his bond, so that a trial may be had upon the merits.
    Appeal from the Circuit Court of Morgan county; the Hon. Cyrus Epler, Judge, presiding.
    Mr. Geo. W. Smith, for appellant;
    argued that leave should have been granted to amend the appeal bond, and cited Rev. Stat. 1874, 648, § 69; Dedman v. Barber, 1 Scam. 254; Hubbard v. Freer, 1 Scam. 467; Waldo v. Averett, 1 Scam. 487; Bragg v. Fessenden, 11 Ill. 544; Boorman v. Freeman, 12 Ill. 165; Wear v. Killeen, 38 Ill. 259; Fink v. Disbrow, 69 Ill. 76.
    Mr. Robert D. Russell for appellee;
    contended that the record should show that the bond was approved by the justice, and cited Rev. Stat. 1874, 647, §§62, 64.
   Lacey, J.

On the 28th day of March, A. D. 1877, judgment was rendered before A. PI. Groff, a justice of the peace in Morgan county, against the appellant, for violating the city ordinance of appellee, in the sum of §25 and cost of suit.

An appeal by appellant was attempted to be taken in the case, but the justice before whom the judgment was rendered having soon after been removed from office by the county commissioners of the county, and one W. H. McCullough having been appointed justice in his place, the cause for some reason was not certified to the Circuit Court. .On the 13th day of October, 1877, one of the days of the October special term of the Morgan county Circuit Court, appellant, by his attorney, moved the court for rule on W. H. McCullough, successor in office to A. H. Groff, as justice of the peace, to certify the records and papers in this cause to the Circuit Court. This motion was based on the affidavit of Peter Carroll, appellant, showing among other things .that on the 1st day of April, A. D. 1877, he took an ■appeal to the Circuit Court of said county, and filed his appeal bond with said justice (A. H. Groff), which said bond was •accepted and approved, etc.

On the 25th of October, 1877, the court below entered a rule on the justice to certify and transmit the papers and ■record according to the motion. In obedience to such rule, •on the 27th day of October, A. D. 1877, the justice sent up a transcript of the cause, together with an appeal bond, signed by appellant and Wm. Carroll as security. The bond was very defective in form, and not such as was required by the statute. At the foot of the transcript of the justice record, and a part of the transcript was added these words by justice Groff, “ appeal allowed.”

On the same day the transcript was filed in the Circuit Court, the attorney for appellees eiftered his motion to strike the cause from the docket, and for ¡procedendo to the justice of the peace.

At the ¡November term of the Circuit Court, to which time the cause had been continued, the attorney for appellant moved the court by cross-motion for leave to file a good and sufficient appeal bond.

Thereupon the court below overruled the cross-motion, to which appellant excepted, and sustained the motion of the appellee, dismissed the appeal, and ordered a jprocedendo to the justice of the peace, to which' ruling the appellant excepted.

Appellant assigns for error the overruling of appellant’s cross-motion, and sustaining the motion of appellees and dismissing the appeal.

The statute of this State provides that “no appeal from a justice of the peace shall be dismissed for any informality in the appeal bond; but it shall be the duty of the court, before whom the appeal may be pending, to allow the party to amend the same within a reasonable time, so that a trial may be had on the merits of the case.” Stat. 1874, p. 648, sec. 69.

But it is contended in this case by counsel for appellees, that the appeal bond was not filed and approved in this cause within the twenty days from the rendition of the judgment before the justice of the peace; that there were no file marks or marks of approval by the justice on the appeal bond.

But the only evidence in this case as to whether the appeal bond was filed and approved within the time required by law, was the appellant’s affidavit, showing that the bond was filed and approved within the proper time, and the entry of the justice on his docket that “ appeal was allowed.”

In the absence of any proof to the contrary, we must hold this proof to be sufficient. The affidavit of appellant is positive that the appeal bond was filed and approved within the proper time.

The entry of the justice allowing the appeal must also be held sufficient, even were it not dated, as in this case it is doubtful if the entry is dated; for the reason that the presumption of 'law is, that every public officer will do his duty. Had not the bond been filed and approved by him within the time required by law, the justice would not have allowed the appeal.

For the above reasons the judgment of the court below will be reversed and the cause remanded, with instructions to the Circuit Court to overrule the motion of appellees to strike the cause from the docket and for procedendo, and to allow the motion of appellant to file a good and sufficient appeal bond within a reasonable time.

Reversed and remanded.


text:
    Thompson D. Fisher et al. v. Cassius M. Niccolls.
    1. Malpbactice—Pbofessional skill—Rule of law.—The law does not require the highest degree of skill in physicians and surgeons, but they undertake to bring to their aid the ordinary care and skill of those engaged in the profession, and to treat their patients with ordinary care and skill, and to the best of their judgment.
    2. Evidence as to manneb of tbeatment.—On the trial appellants were asked if in the treatment of appellee they exercised their best judgment and skill. The real controversy being as to the manner in which the treatment was made, an answer to the question was proper, as tending to rebut the charge of negligence, and should have been allowed.
    3. Ebbob in judgment.—An instruction that if the jury believe the defendants used ordinary skill and care in the treatment of plaintiff’s hand, and made a mistake in judgment, then the defendants are not liable for the result of such mistake under the law, correctly states the law; and a modification by the court, by adding “provided the defendants in making up their judgment did not disregard the well settled rules of medical science,” was erroneous, as there was no evidence in the case upon which to base it.
    Appeal from the Circuit Court of McLean county; the Hon. Owen T. Reeves, Judge, presiding.
    Messrs. Tipton & Pollock for appellants;
    that a physician is bound only to use ordinary care and skill, and exercise his best judgment, cited 1 Hilliard on Torts, 225; Leighton v. Sargent, 7 Foster, 460; Tefft v. Wilcox, 6 Kan. 61; Branner v. Storment et al. 9 Kan. 51; Simonds v. Henry, 39 Me. 155; Quinn v. Donovan, Sup. Ct. Ill. 1877; McClelland’s Civil Malpractice, 215; McNevins v. Lowe, 40 Ill. 210; Ritchey v. West, 23 Ill. 385; Hallam & Barnes v. Means, Sup. Ct. Ill. unreported.
    The offer of appellants to show that they exercised their best skill and judgment should have been allowed: Anderson v. Friend, 71 Ill. 475; Clift v. White, 12 N. Y. 538; Moss v. Riddle, 5 Cranch. 351; Miller v. The People, 5 Barb. 203; Griffin v. Crauston, 1 Bosw. 281; Seymour v. Wilson, 14 N. Y. 567; Forbes v. Waller, 25 N. Y. 439; Bedell v. Chase, 34 N. Y. 386; McKown v. Hunter, 30 N. Y. 628;
    The verdict should have been set aside as being clearly against the weight of evidence: Hibbard v. Molloy, 63 Ill. 471; Puterbaugh v. Crittenden, 55 Ill. 485; Waggeman v. Lombard, 56 Ill. 42; Goodwin v. Durham, 56 Ill. 239; C. & A. R. R. Co. v. Purvines, 58 Ill. 38; Smith v. Slocum, 62 Ill. 354; Knott v. Skinner, 63 Ill. 239.
    Even where the evidence is conflicting, if it preponderates strongly in favor of a party, a verdict against him should be set aside: C. R. I. & P. R. R. Co. v. Herring, 57 Ill. 59; C. C. & I. C. R. R. Co. v. Troesch, 57 Ill. 155; Davenport et al. v. Springer et al. 63 Ill. 276; Schwartz v. Lammers, 63 Ill. 500; T. W. & W. R. R. Co. v. Moore, 77 Ill. 217.
    Testimony of biased witnesses as to matters of opinion • should be distrusted: 1 Greanleaf on Ev. 488; Lockwood v. Lockwood, 2 Curtis, 209; Dillon v. Dillon, 3 Curtis, 96; Dickenson et al. v. Fitchberg, 13 Gray, 546.
    Testimony as to whether an ordinarily prudent and skillful surgeon might not be mistaken iii his diagnosis, was proper and should have been allowed: State v. Windsor, 5 Harr. 530; Twombly et ux. v. Leach, 11 Cush. 402; Fenwick v. Bell, 47 Eng. C. L. 311; Hunt v. Lowell Gas Light Co. 8 Allen, 170; Commonwealth v. Rogers, 7 Met. 500; Jameson v. Drinkald, 22 Eng. C. L. 636; Rex v. Wright, 1 Brit. C. C. 456; Malton v. Nesbit, 1 C. & P. 70; State v. Klinger, 46 Mo. 224.
    Messrs. Beeves, Stevenson & Ewing and Mr. Weldon, for appellee,
    cited Sterling Bridge Co. v. Pearl, 80 Ill. 251; Woodbury v.-7 Gray, 471; Sill v. Brown, 46 Mo. 224; 75 Ill. 529.
   Higbee, P. J.

This is a suit in case by appellee against appellants who were practicing physicians, for alleged malpractice in the treatment of the appellee’s hand for a severe injury received the day before they were called. It is claimed that appellants so negligently and unskillfnlly conducted themselves that it became necessary to amputate the hand of appellee, and that the same was lost to him by reason of their negligence, unskillfulness and want of care.

It is not insisted or claimed, so far as we can discover by the record, that appellants are not properly educated and skilled in their profession, but it is claimed that the injury resulted from their negligent and unskillful treatment.

The evidence shows that these physicians were both graduates of medical colleges, and had been engaged in the practice of their profession for many years, and were not wanting in the ordinary skill of the profession.

The law does not require the highest degree of skill in physicians and surgeons, but they undertake to bring to their aid the ordinary skill of those engaged in the profession, and to treat their patients with ordinary care and skill, and exercise their best judgment in such treatment.

On the trial of the cause below, appellants wrere severally asked by their attorney, if in the treatment of appellee’s hand they exercised the'best judgment and skill of which they were capable. The question was objected to by appellee and the objection sustained by the court. As there was no question made as to the general knowledge and skill of appellants, but the real controversy related to the manner in which they had treated appellant’s hand, we think this evidence was proper and should have been admitted, as tending to rebut the charge of negligence. ,

On the trial the appellants asked the court to instruct the jury “ that if they believe the defendants used ordinary skill and care in the treatment of plaintiff’s hand, and made a mistake in judgment, then the defendants are not liable for the result of such mistake under the law.” This instruction the court refused to give as asked, but gave it with the following modification: “Provided, the defendants in making!up their judgment did not disregard the well settled rules and principles of medical science.”

We think this modification was improper and should not have been made. The instruction properly stated the law without the modification, and there was no evidence in the case to which it was applicable.

The main reason urged, however, for reversing the judgment in this court is, that the verdict is against the weight of the evidence, and we are referred to numerous decisions of our own Supreme Court, by both parties declaring the general principles to govern the decision of this question. We have examined these cases and after a patient and careful examination of the evidence in this case, we are prepared to say, that under the ruling of the Supreme Court in any of the cases referred to, the verdict in this case is so manifestly against the evidence as to render it the duty of the court to grant a new trial. We refrain from a discussion of the evidence in detail, as the case may again be submitted to a jury. But as the case now stands we think the verdict is not sustained by any reasonable view of the evidence, and that it does great injustice to appellants.

For these reasons the judgment is reversed and the cause lemanded. ^Reversed and remanded.


author: Higbee, P. J. Davis, J.,

text:
    Charles Griffin v. George W. Wertz.
    Unrecorded chattel mortgage—Death of mortgagor—Rights of mortgagee.—It is well settled, that as between the parties themselves, an unrecorded chattel mortgage is valid and binding. An administrator of the mortgagor of such unrecorded instrument, is not a third person within the meaning of the statute, so as to enable him to withhold possession of the mortgaged chattels from the mortgagee on condition broken. He has no better title than his intestate had.
    Appeal from the Circuit Court of Vermillion county; the Hon. O. L. Davis, Judge, presiding.
    Messrs. Marr & Oalhotot, for appellant;
    contending that the administrator being in privity in estate with the mortgagor could have no greater rights in the property than his intestate had, cited 1 Greenleaf’s Ev. § 189; Bump on Fraudulent Conveyances, 443; Herman on Chattel Mortgages, 348, 159.
    The legal title to the property vested in the mortgagee on condition broken: Durfee v. Grinnell, 69 Ill. 371; Simmons v. Jenkins Adm’r, 76 Ill. 479.
    A husband may dispose of his personal estate and so defeat the claim of his widow' for a specific allowance: Padfield v. Padfield, 78 Ill. 16; Phelps v. Phelps, 72 Ill. 545.
    Messrs. Evans & Swallow, for appellee;
    that until forfeiture the mortgagee has only a lien upon the property, cited Rhines v. Phelps et al. 3 Gilm. 455.
    And where material provisions of the statute have been omitted in the execution of the mortgage, it is questionable whether even a lien exists: Henry et al. v. R. L. L. W. 9 Chicago Legal News, 225.
    Hpon the grant of letters of administration, the legal title vested in the administrator: Makepeace v. Moore, 5 Gilm. 474; Cross v. Carey, 25 Ill. 562; Reynolds v. The People, 55 Ill. 328.
    The mortgage not being recorded is void as against the rights of third persons: Rev. Stat. 1874, Chap. 95, § 1; Frank v. Miner, 50 Ill. 444; Corgan v. Frew, 31 Ill. 31; Henry et al. v. R. I. L. W. 9 Chicago Legal News, 225.
    The administrator is the representative of the creditors and distributees of the decedent’s estate, and this mortgage was void as to them: 2 Greenleaf’s Ev. § 641; 2 Hilliard on Mort gages, Chap. 46, 12; Welsh v. Bekey, 1 Penn. 57; Kater v. Steinruek, 40 Penn. 501.
    The widow is entitled to certain specific appropriations out of the estate in exclusion of debts, claims and charges: Rev. Stat. 1874, Chap. 3, § 74; York v. York, 38 Ill. 522.
   Higbee, P. J.

It appears by the record in this case, that Lewis in his lifetime was the owner of certain personal property which he mortgaged to appellant to secure the payment of several promissory notes given by him to appellant. The mortgage contains the condition that until default is made the mortgagor shall retain the possession of the property; .but upon the maturity of either of the notes and default in payment,' the mortgagee was authorized to take and sell the property.

Lewis died before the maturity of either of the notes, in possession of the property, when appellee was appointed his administrator, and as such received the possession of the mortgaged property and caused it to be inventoried and appraised as a part of the estate of said Lewis.

The mortgage was executed and acknowledged as required by the chattel mortgage act, but was not recorded. Upon the maturity of the first note appellant took possession of the property under his mortgage, for which taking appellee brought this suit in trover and recovered a judgment in the Vermillion Circuit Court for the value of the property.

That an unrecorded chattel mortgage is valid and binding between the parties to the instrument is not open to question. By the statute, however, it is made void as against the rights and interest of third persons, and the only question presented in this case is, whether the administrator is a third person within the meaning of this statute. There is some conflict in the authorities upon this question, but we are of opinion that both sound reason and the weight of authority are, against the position In the lifetime of the intestate no one would question the validity of the mortgage against him, and we think it equally binding upon his heirs and personal representatives. The administrator takes the personal property of deceased as his representative, and acquires no better right than he had. Herman on Chattel Mortgages, p. 159 and 348, and authorities there cited. Chateau v. Jones et al. 11 Ill. 300.

For these reasons the judgment is reversed and the cause remanded.'

Keversed and remanded.

Davis, J.,

having tried this case in the court below took no part in this decision.


text:
    William T. Hewitt v. William Walker.
    Contract—Failure of consideration—Damages.—Appel’ee rented a pasture of appellant, which appellant agreed to enclose with a sufficient fence. The evidence tended to show that appellant neglec'ted to build a proper fence, and also deprived appellee of certain water privileges. Held, while the evidence tended to ■ show that appellant had broken his contract, yet it came far short of proving that the appellee had sustained damages by reason of such breach to the extent allowed by the jury; that only such damages should have been given as were the natural and proximate consequence of the act complained of. The damages were excessive, and not warranted by the evidence, and a new trial should have been allowed.
    Appeal from the Circuit Court of Christian county; the Hon. H. M. Yandeveer, Judge, presiding.
    Mr. W. M. Provine and Mr. John B. Jones, for appellant;
    that if plaintiff by ordinary care could have avoided the consequences of the defendant’s neglect, and failed to exercise such care, he cannot recover, cited C. & A. R. R. Co. v. Becker, Adm’r, 76 Ill. 25; Dobbins v. Du Quid et al. 65 Ill. 464.
    Damages to he recovered must be the natural and proximate consequence of the act complained of: Olmstead v. Burke, 25 Ill. 86; Vedders v. Hildreth, 2 Wis. 427; Fent v. T. P. & W. R’y Co. 59 Ill. 349; T. W. & W. R. R. Co. v. Muthersbaugh, 71 Ill. 572; Caldwell v. Evans, Sup. Ct. Ill. 1877; Phillips v. Dickerson, Sup. Ct. Ill. 1877; Pittsburgh & Connellsville R. R. Co. v. McClurg, 56 Pa. St. 294; Penn. R. R. Co. v. Zebe, 9 Casey, 318.
    Messrs. McCaskill & Bbo., for appellee;
    that appellant must he held liable for all damages growing out of a breach of his contract, cited Haven et al. v. Wakefield et al. 39 Ill. 509; Sedgwick on Damages, 81, 127; Ward v. C. & R. I. R. R. Co. 16 Ill. 522; Becker v. C. & A. R. R. Co. 76 Ill. 25; 2 Moak’s English Rep. 601; 2 Greenleaf’s Ev. 275.

      Appellee was deprived of the use of the springs on the land, and if a tenant is evicted from a portion of the premises, he is under no obligation to pay rent for the balance, although he continues,to enjoy it: Anderson v. Chicago M. & F. Ins. Co. 21 Ill. 604.
   Davis, J.

This was an action of assumpsit, brought by appellant against appellee, to recover the amount of a promissory note for $375, dated 19th March, 1874, due seven months after date, with interest after maturity at ten per cent, per annum.

The appellee filed two pleas, one of which set up the defense of a partial failure of consideration, and the other that of a total failure. To these pleas replications were filed and issue joined thereon.

On the trial the jury found a verdict for the appellee for §11. A motion was made by appellant for a new trial, whereupon the appellee remitted the $11, and the motion was overruled by the court, and a judgment for appellee against appellant was rendered. To reverse this judgment this appeal was taken.

Among the errors assigned by the appellant are, that the court below erred in overruling appellant’s motion for a new trial, and in rendering a judgment against him in favor of appellee.

From the evidence, it appears that in the spring of 1874 appellant rented to appellee and one Samuel Cully, 200 acres of land for a pasture, for which appellee executed the note sued on, and Cully gave his note also to appellant for $225.

The evidence tended to show that appellant agreed to make a fence around the tract sufficient to turn stock; that the fence was in a bad condition and was to be repaired by the first of April; that appellant put in the pasture about 115 head of cattle, and Cully, 67. The proof also tended to show that the appellant failed to make the fence sufficient to turn stock, and that, in consequence of such failure, the cattle of appellee broke out of the pasture repeatedly and roamed about the country to their injury. It also tended to show that appellee was deprived of the water upon the premises for the use of his cattle by the action of appellant, and that by reason of the failure of appellant to repair the fence around the premises, and Ms action in depriving him of the water for the use of his cattle, the appellee removed them from the pasture before the expiration of his term of renting.

But while all the evidence offered tended to show that the contract was broken by appellant, yet it came far short of showing that the appellee had sustained damages by reason of such breach to the extent allowed by the jury.

Only such damages should have been given as were the natural and proximate consequence of the act complained of. Shugart v. Egan, 83 Bl. 56.

The damages' allowed by the jury were excessive, and not justified by the evidence. The court below should, for that reason, have sustained the appellant’s motion for a new trial. Not having done so, the judgment must he reversed.

Reversed and remanded.


text:
    Freeman P. Kirkendall et al. v. Thomas Keogh.
    1. Eviction.—The institution of a suit against a party in actual and uninterrupted possession of premises, and the entry of a decree that unless he pay a certain sum the premises will be sold, is not an eviction. To recover for an eviction the party should have surrendered the possession to the holder of the paramount title, or remained until he was removed by due process of law.
    2. Constructive eviction.—While certain acts have been held to amount to an actual eviction, it cannot he said that a person in possession can retain that possession and recover from his grantor upon the mere claim of the holder of the better title. He should have discharged the outstanding title before bringing his suit for an eviction. A mere agreement to pay the claim is not sufficient.
    3. Damages on breach oe covenant.—In a suit for breach of the covenant against incumbrances, the plaintiff not having discharged the incumbrance when the suit was brought, is entitled to recover only nominal damages.

      Appeal from the Circuit Court of McLean county; the Hon. Owen T. Beeves, Judge, presiding.
    Mr. Wm. E. Hughes, for appellants;
    contending that there must he an eviction, cited Hamilton v. Cutts, 4 Mass. 352.
    Until eviction, no action will lie: Bostwick v. Williams, 36 Ill. 65; Moore v. Vail, 17 Ill. 185; Brady v. Spurck, 27 Ill. 478.
    Only nominal damages can be recovered: Brady v. Spurck, 27 Ill. 478; Hacker v. Blake, 17 Ind. 97; Small v. Reeves, 14 Ind. 164; Copeland v. Copeland, 34 Me. 446; Stewell v. Bennett, 34 Me. 422; Noonan v. Ilsley, 22 Wis. 27; Mecklem v. Blake; 22 Wis. 495.
    Messrs. Williams, Bure & Oaten, for appellees;
    that an actual eviction is not necessary, cited Beebe v. Swartwout, 3 Gilm. 162; Moore v. Vail, 17 Ill. 185; Hardin v. Larkin, 41 Ill. 415; McConnell v. Downs, 48 Ill. 271.
    An agreement to pay, for protection against an outstanding title, has the same effect as regards eviction as actual payment: Buckler v. Northern Bank Ky. 63 Ill. 268.
    If a vendor has notice of a suit against his vendee, he is bound by the judgment: Rawle on Cov. for Title, 226; Sisk v. Woodruff, 15 Ill. 15; McConnell v. Downs, 48 Ill. 271.
   Davis, J.

Two questions only are presented by the parties to this case on the following facts, as shown by the record.

George Hinshaw, in his life-time, being the owner in fee of certain town lots in the city of Bloomington, sold the same to Ohalkley Bell, and gave to him a bond for a deed on the payment of $1,250.

Afterward Bell sold and conveyed one of those lots, the lot in controversy in this suit, to the appellants, who subsequently sold, conveyed and warranted the same to the appellee, for the sum of $175, and placed him in full possession of the premises, and the appellee made improvements and remained in uninterrupted possession of the lot, and was in such possession when this suit was brought. George Hinshaw, having departed this life, and Bell, having failed to pay the frill amount of the purchase money agreed to be paid for the lots, Jehu Hinshaw, the administrator of George Hinshaw, deceased, commenced a proceeding in chancery, to which the appellee, Chalkley Bell and others were parties, to obtain the payment of the purchase money remaining due on said lots. Written notice was immediately given by the appellee to the appellants of the commencement of this proceeding, and the appellee.made all the defense which could be made in such cause.

On the final hearing a decree was rendered in favor of the complainant, and among other things, the court decreed that the said administrator should tender to appellee a good and sufficient deed for the lot so sold and conveyed to him by appellants, and that appellee should within twenty days after such tender, pay to the administrator a certain sum of money, which was by the agreement of the parties afterward fixed at the sum of §200 and one-third of the costs of the chancery proceeding. On default of such payment, the Master in Chancery was ordered to sell. On the 10th day of May, 1877, and some twenty days after the appellee had commenced this suit, he paid to the administrator the sum decreed to be paid, and received from him a deed for the lot in controversy.

On the 10th day of April, 1877, the appellee commenced his action of covenant against the appellants to recover damages for the breach of the covenants contained in the deed conveying the lot purchased by him. In this action the court below gave a judgment in favor of appellee against appellants for §191. To reverse this judgment appellants appealed. The two questions presented by the parties for the determination of this court, are:

Was the appellee evicted from the premises conveyed by the appellants, before the commencement of this suit? And, second, on the warranty of appellants against incumbrances, was the appellee entitled to recover more than nominal • damages when he brought his suit?

Appellee contends that the institution of the suit by the administrator of Hinshaw, the entry of the decree in that case, and the agreement to pay the administrator for the lot, constitute a construcive eviction, which entitled him to sue.

The evidence shows conclusively that, from the time the appellee was first put in possession of the lot under his deed from appellants, he has had actual and uninterrupted possession of the premises.

The owner of the fee has taken no steps to remove him from such possession. To recover for an eviction, the appellee should have surrendered the possession to the holder of the paramount title, or remained until he was removed hy due process of law. Certain acts have been held as being equivalent to an actual eviction.- As, “ where the grantee, out of possession, is unable to obtain possession in consequence of an existing possession by a person claiming and holding under an elder title,” or where “ the grantee is hindered or prevented by any one having a better right from entering and enjoying the premises granted,” or “ where there is a union of acts of disturbance and lawful title.” Beebe v. Swartwout, 3 Gilm. 162; Moore v. Vail, 17 Ill. 185.

But we are not aware of any case in which it has been held that a person in possession can retain that possession and recover from his grantor on the mere claim of the holder of the better title.

In this case the appellee could have paid off and discharged the outstanding title before bringing his suit, but we do not consider that an agreement to pay is equivalent to payment, as claimed by appellee, or that it amounts to a constructive eviction.

On the covenant against incumbrances it is clear that the appellee, not having discharged the incumbrance when this suit was brought, was only entitled to recover nominal damages in the court below.

The judgment given below must be reversed.

Beversed and remanded.

The case of same appellants v. John McGrath, and same v. Hugh Corrigan, having been submitted on the same abstracts and briefs, and the facts being identical, and similar judgments having been rendered in the court below, the judgment in each case is reversed and the cases remanded.


text:
    Charles Raymond et al. v. Peter Kerker.
    1. Landlord and tenant—Accruing rent not reserved—When it passes to grantee—Attornmbnt.—As between the parties, accruing rent not reserved passes hy the deed to the grantee, but until attornment there is no privity of contract between the tenant and grantee for payment of the rent, and the grantee cannot maintain a suit at law against the tenant therefor.
    2. Statute 4th of Anne not in force.—The statute 4th of Anne, dispensing with the necessity of an attornment by the tenant in order to give a complete remedy by the assignee against the tenant, is not in force in this State.
    3. Pleading—Evidence.—The release offered in evidence was executed long after suit was commenced, and if competent for any purpose, was not admissible under either of the pleas in the case. The pleas had relation to the situation at the commencement of the suit, and the release certainly did not show non-indebtedness at that time.
    Appeal from the Circuit Court of McLean county; the Hon. Owen T. Beeves, J ndge, presiding.
    Mr. William E. Hughes, for appellants;
    that the tenant cannot he permitted to show an assignment of the reversion, unless he can also show an attornment, cited Jackson v. Whedon, 1 E. D. Smith, 141; McIntyre v. Patton, 9 Humph. 447; Hoen v. Simmonds, 1 Cal. 119; Gillen v. Chatfield, 8 Minn. 455.

      At feudal law the landlord was entitled to rent if he gave the tenant possession and kept him in it: 2 Black. Com. 41.
    The tenant was kept in possession hy the plaintiffs, and he is now estopped to deny the claim for rent: Lloyd v. Lee, 45 Ill. 277; Brooks v. Record, 47 Ill. 30; Kane County v. Herrington, 50 Ill. 232.
    Messrs. Williams, Burr & Capen, for appellee;
    that accruing rents pass with the fee, cited Dixon v. Niccols, 39 Ill. 372; Crosby v. Loop, 13 Ill. 625; Green v. Massie, 13 Ill. 363; Kennedy v. Kennedy, 66 Ill. 190; Sherman v. Dutch, 16 Ill. 283; Taylor’s Landlord and Tenant, § 568.

      Where there is a conflict of evidence the verdict will not he disturbed: Thomas v. Rutledge, 67 Ill. 213; Eastman v. Brown, 32 Ill. 53; Wood v. Price, 46 Ill. 435.
    If appellants base their claim upon a promise to pay made after a sale of the land, they have mistaken their remedy: Taylor’s Landlord and Tenant, § 567: Breece v. Come, 5 Bing. 24; -v. Cooper, 2 Wils. 375; Cornell v. Lamb, 2. Cow. 652.
   Higbee, P. J.

This is a proceeding by distress for rent. The appellants allege that they rented a farm of one hundred and sixty acres to appellee on the 1st day of March, 1873, for one year, at a rent of $640, to be paid in the fall or winter after the renting; that defendant entered and occupied under the contract, and has not paid the rent. The warrant was filed in the McLean Circuit Court, where defendant afterward appeared and filed three pleas:

1. That he is not and was not at the time of issuing the distress warrant, indebted to plaintiffs for rent.

2. Non assumpsit.

3. At the time, etc., was not indebted for rent.

These pleas concluded to the country, and issue was joined on them.

Appellants fully proved the allegation of their distress warrant, which takes the place of a declaration, and rested.

Appellee then read in evidence, against the objection of appellants, a deed dated the 27th day of September, 1873, executed' by appellants to one George M. Toole, conveying the fee in the premises without reserving the accruing rents, and a release-from Toole, the grantee in the deed, to defendant for all rent due him from appellee for the use of the premises. This-release was made in July, 1875, more than a year after this suit was commenced.

It was understood when appellants conveyed to Toole (27th September, 1873), that Toole was not to have possession of the premises until the 1st of March, 1874, when appellees’ lease would expire. The evidence also tended to show that appellee had never paid the rent to either appellants or Toole, nor had he ever attorned to Toole, and that the release was executed by Toole to appellee in consideration of $5, and was intended to defeat this suit then pending.

The court on this evidence found the issues for defendant, and rendered a judgment against appellants for costs, to reverse which appellants bring the case to this court, and assign error upon the judgment of the court below.

The principal question we shall consider is, whether the deed of appellants to Toole passed the rights to the accruing rent to the grantee, so as to deprive appellants of the right to maintain this suit, without attornment by the tenant to the purchaser. That accruing rent not reserved passes by the deed to the grantee, as between the parties to the deed, is not an ojoen question in this State, but whether the legal right to the rent passes by the grant as against the tenant, who has not consented thereto by attornment, is quite a different question. At common law a lease was not assignable so as to invest the assignee with the legal title to the rent. The tenant neither owed fealty or rent to the assignee until he had assented to the assignment by attorning to the purchaser. Where the lease is transferred, as to accruing rents by grant, there is privity of estate between the tenant and the grantee, but until attornment there is no privity of contract for the payment of the rent, and the grantee, cannot in such case maintain a suit at law against the tenant therefor.

The statute of 32 Hen. 8, which seemed to grant a right of recovery by the assignee against the tenant, was finally construed to give no such right until the tenant had attorned and thereby assented to become directly liable to the assignee. 1 Ellis & Ellis, 1040. The 4th of Anne, which finally dispensed with the necessity of an attornment in order to give a complete remedy by the assignee against the tenant, is not in force in this State. See Viner’s Abridgment, 317, Fisher v. Deering, 60 Ill. 114.

From this view of the law it would seem that at the commencement of this suit the legal right to the contract was vested in the appellants, and they alone could maintain a suit at law for the recovery of the rent. .There was an entire want of privity of contract between the appellee and Toole, and for this reason the legal title to rent under the contract was not vested in him. Appellants, then, having the legal right to maintain a suit on the contract for rent, were the proper parties plaintiff in the proceeding for that purpose, and such right will not he defeated by interposing equities in' favor of third parties not before the court or parties to the suit. Chadsey v. Lewis, 1 Gilm. 353.

It is not necessary for this court to decide whether appellants could distrain for rent after they had granted the fee. No objections were made to the manner of getting defendant into court below, and after the issues were formed on the pleas, it only remained to try them.

The release offered in evidence was executed long after this suit was commenced, and if it was competent evidence for any purpose it was not admissible under either of the pleas in this case, and did not tend to prove any issue made by either of said pleas. The pleas had relation to the commencement of the suit, and the release certainly did not show that appellee was not then indebted to appellants for rent.

We purposely forbear from expressing any opinion as to the effect of the eighth section of the act of 1873, Session Laws 1873, p. 119, as that act was not in force when this contract was made, and cannot have a retrospective effect. Houser v. Flyer, 81 Ill. 321.

For these reasons we think appellants were entitled to recover on the case made by the pleadings and evidence, and the judgment is therefore reversed and the cause remanded.

Reversed and remanded.