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    Jacob Beidler et al. v. Robert H. Fish.
    1. Joint lessors, liability op. — The fact that a party is a joint lessor with another does not make him responsible for the acts of the latter when attempting to enter the premises by force, unless he participates in or authorizes such forcible acts.

      2. Damages prom loss op propits. — Where testimony was admitted which tended to show the loss of profits the plaintiff might have made out of his ice business had not his premises been entered by force, etc. Held,that such damage, being special and not the necessary consequence of interrupting the plaintiff’s business, should have been specially alleged in the declaration; that the damage arising from loss of profits was too remote and speculative, depending upon many and uncertain contingencies, to form a sate rule by which to measure the amount of recovery in this case.
    !* 3. Question oe law — Instruction.—An instruction which submits to the jury the question of law as to what would constitute an unlawful interference with a lessee’s possession, is erroneous.
    Appeal from the Circuit Court of Cook county; the Hon. John Gt. Rogers, Judge, presiding.
    Opinion filed April 15, 1884.
    This is an appeal from a judgment rendered in the court below against Jacob and Henry Beidler and three others, in an action of trespass brought against them by Robert H. Fish, for forcibly entering the plaintiff’s store and attempting to expel him therefrom. The declaration contains two counts, the first charging the defendants with assaulting and beating the plaintiff; the second, trespass qua/re clausum. To the first count the defendant pleaded son assault demesne, and to the second, justification under the provisions of a lease from the defendants Beidler to the plaintiff, under which the plaintiff was in the possession of the premises at the time of the acts complained of. There was also a plea of not guilty to the whole declaration.
    The controversy grows out of an attempt on the part of the Beidlers to re-enter and take forcible possession of said premises after the expiration of the term for which they had been let to the plaintiff. The defendants gave evidence tending to show that the plaintiff was in possession under alease in writing executed by the Beidlers to the plaintiff, bearing date March 21, 1881, and demising said premises to him'for the term of one year from May 1,1881. After covenanting that the lessee would yield up the premises to the lessors at the expiration of said term, the lease, among other things, contained a covenant to the effect that if default should be made in any of the covenants to be kept by the lessee, the lessors might, at their election, re-enter with or without process of law and expel the lessee bv force.
    The acts complained of were committed after the expiration of the year for which the premises were let, and after demand duly made by the defendants for possession, and refusal by the plaintiff to surrender the same. The plaintiff gave evidence tending to prove the acts complained of in his declaration. The defendants offered the lease in evidence together with testimony tending to prove its execution.
    Among the instructions given on the part of the plaintiff was the following: “ The court instructs the jury that this is an action of trespass brought by the plaintiff, Eobert H. Fish, against the defendants, Jacob and Henry Beidler, James F. Griffin, Walter D. Dwight and Charles J. Sykes, for forcibly evicting him from the premises described in the declaration, and in order to maintain such action, it is only necessary for the plaintiff to prove that he was in the actual and peaceable possession of the property upon which the trespass is alleged to have been committed, and that the defendants, or some one or more of them, unlawfully interfered with and disturbed the plaintiff in such possession.”
    There was a jury trial, resulting in a verdict for the plaintiff for $1,500, of which the plaintiff remitted $1,000, and had judgment for $500. The defendant appealed.
    Messrs. E. & A. VanBubbh, for appellants.
   Wilson, J.

The judgment in this case must be reversed on several grounds. In addition to the two special pleas there was the plea of not guilty by all the defendants. The jury found them all guilty.

As to the defendant Jacob Beidler, there was an entire absence of any proof to show that he participated, directly or indirectly, in the alleged acts of trespass, or that they were done by his authority or consent. The fact that he was a joint lessor with Henry Beidler in the lease, does not make him responsible for the acts of the latter when attempting to enter by force, unless he participated in or authorized such forcible acts.

Nor do we find any evidence connecting the defendants Griffin and Dwight with the alleged trespass. All that is shown as to them is that they were, and for some years had acted as the agents of the Beidlers in leasing their buildings and collecting the rents. Neither of them is shown to have been present at the time of the acts complained of, nor to have participated in or authorized the same. As the burden was on the plaintiff to show affirmatively their connection with the transaction complained of, the case as to them was not made out.

The plaintiff was sworn as a witness in his own behalf, and testified against the objection and exception of the defendants as follows:

Q. “ What effect, if any, Mr. Fish, did this congregation of people and visits of Mr. Beidler and his friends have, if any, on your business?

Ans. “Why, it prevented people from coming to our premises. Even in the evening they were afraid of being raided. They were afraid of being thrown out. The customers were getting chary.

Q. “Howdo you know people were afraid to come?

Ans. “ Because they told me so, and I have usually had a great many picnics. I was unable to supply them.

Q. “ Now I want to know, Mr. Fish, what business of yours was interrupted or stopped in consequence of this raid?

Ans. “ I had started previous to this time the ice business. I had built an ice house, and put 225 tons of ice in, and that, of course, was all stopped. I was unable to fill the orders, and I lost a good many of my customers by that, and some parties I had furnished with ice cream for three years past gave me no more orders.”

It is apparent that some of this testimony was mere matter of opinion, and some of it only hearsay. Whether the people were prevented from coming to plaintiff’s premises, or of being raided, or thrown out, or were getting chary, was only the plaintiff’s inference, unless he based his statement upon what people had told him, in which case it was only hearsay.

Again, the evidence, in so far as it tended to show the loss of profits the plaintiff might have made out of his ice business, was incompetent, we think, on two grounds, (1) such damage being special, and not the necessary consequence of interrupting the plaintiff’s business, should have been specially alleged in the declaration. 1 Chit. Pl. 395-6; Miles v. Weston, 60 Ill. 361. The averment is that the plaintiff was “ deprived of great gains and profits which would have accrued to him, etc.” Even if such damages were recoverable, they should have been specifically alleged, to enable the defendants to be prepared for their defense. (2) The damage arising from loss of profits was too remote and speculative, depending upon many and uncertain contingencies, to form a safe rule by which to measure the amount of recovery in a case like the present. The general rule as laid down by Mr. Sedgwick is that in actions for an alleged wrong, aside from cases in which punitive damages are allowable, the recovery is limited to such damages as are the direct or proximate and natural consequence of the act complained of; and this rule prohibits any allowance for damages remotely resulting from the principal illegal act: 1 Sedg. on Damages, Chap. 3; and in the notes to Vicars v. Wilcox, Smith’s Lead. Cases, Vol. 2, p. 490, it is said that in cases of tort, unattended by any of those circumstances which call for punitive damages, such as fraud, etc., “ the difficulty of laying down any principle upon which the measure of damages is to be ascertained, beyond a strict adherence to the natural and proximate consequences of the act complained of, is confessed to be insurmountable.” See also Sutherland on Dam., Vol. 1, Chap. 3, et seq., and numerous cases cited.

The plaintiff’s first instruction improperly submitted a question of law to the jury. By it the jury were told that in order to maintain the action it was only necessary for the plaintiff to prove that he was in the actual and peaceable possession of the property upon which the trespass was alleged to have been committed, and that the defendants unlawfully interfered with and disturbed the plaintiff in such possession. Neither this nor any other instruction informed the jury what would constitute an unlawful interference. It left the covenants in relation to the retaking of possession, and the other provisions of the lease to be construed in respect to their legal effect by the jury. The court should have informed them as to what facts would or would not, under the terms of the lease, constitute an unlawful interference.

For the errors indicated the judgment is reversed and the cause remanded for a new trial.

Reversed and remanded.


source: Caselaw Access Project

author: McAllister, P. J.

license: Public Domain

text:
    Thomas Althrop v. Charles H. Beckwith.
    1. Burden of proof. — The law casts the onus of establishing an estoppel by judgment upon him who invokes it.
    2. Estoppel by judgment. — Estoppels arising from judicial proceedings must be certain. To be a bar to future proceedings, it must appear that the former judgment necessarily involved the determination of the same fact, to prove or disprove which it is offered in evidence. It is not enough that the question was in issue in the former suit. It must also appear to be precisely determined. The court is of opinion that the record in the former suit, unaided by extrinsic evidence, was insufficient to prove the fact of the existence and validity of the verbal contract in question and operate as an estoppel, and that the extrinsic evidence introduced was notsufficient to help out such record.
    Error to the Superior Court of Oook county; the Hon. Joseph E. Gary, Judge, presiding.
    Opinion filed April 24, 1884.
    This action was assumpsit, brought by Beckwith against Althrop, the declaration containing two special counts, and the ordinary common counts. The first special count set out by way of inducement that the plaintiff, Beckwith, being in partnership with one Leavitt and one Foster, carrying on the business of dealers in proprietary medicines, under the firm name of O. H. Beckwith & Co., the firm was about to dissolve but being unable to agree upon the terms, they submitted the matter to arbitrators, who made an award that the plaintiff pay Leavitt & Foster $2,900, assume and pay the debts oi the firm and take the assets and business of the concern, oí all which the defendant had notice. Then it alleges that November 1, 1881, the plaintiff and defendant entered into a contract, whereby, in consideration that the plaintiff would sell to the defendant all his right, title and interest in and to the assets, business and good will of said firm, he, the defendant, would purchase the same and pay the plaintiff therefor the sum of $2,500, $500 of which to be paid on the 1st day of December, and the balance in payments of one hundred or fifty dollars, as defendant could conveniently make the same; that he would assume and pay the debts and liabilities of said firm, also the amount which Leavitt & Foster were entitled to receive from plaintiff as aforesaid, averring for breach the non-payment of said two thousand dollars. The plea was the general issue. On the trial the plaintiff gave testimony tending to prove a verbal, express contract, substantially as laid in his special counts; and in order to conclude and estop the defendant from contesting the existence of such contract, the plaintiff, after laying a foundation therefor, by extrinsic evidence, which the court below, against the defendant’s objection, held sufficient, introduced in evidence the record of a former suit between the same parties, comprising a declaration, plea of the general issue, a verdict finding the issues for the plaintiff and assessing his damages at $513.83, and the usual judgment thereon. The said declaration was in assumpsit, contained one special count upon a contract similar in terms to one set out in the special counts of the declaration in the present suit, averring for breach the non-payment of five hundred dollars.
    There was but the testimony of one witness to lay the foundation for the admission of the verdict and judgment in the former suit, to estop the defendant from contesting the existence of such special contract; and he stated that he was sworn as a witness in such former suit, and testified then the same as he had in this present suit. Then he was asked by plaintiff’s counsel this question: “ State whether there was another subject-matter in controversy in that suit between these parties, and this contract and the liability of Mr. Althrop? ” To which he answered: “And the subject-matter was Mr. Beckwith tried to get his pay, $2,500, or $500, that portion of it that was then due.” Ques. “ Under this contract-? ” Ans. “Tesr sir.” Ques. “ That was the claim?” Ans. “ That was the claim, that is, in substance.” Ques. “Was there anything else, any other claim?” Ans. “The counsel struck a little outside of that.”
    The defendant gave testimony tending to show that he did not enter into any contract relating to the subject-matter.
    The court at the instance of the plaintiff gave the jury the following instructions: 8
    3. “ The first special counts in the declaration in this suit and in the former'suit in this court between rthese parties are substantially on the same contract of sale and purchase. The verdict and judgment in the former suit are conclusive between these parties upon the issues joined and tried in that case; and if you believe from the evidence that the evidence in that former suit and upon which the recovery in that case was had, was only upon the' subject of the five hundred dollars which Beckwith claimed that Althrop agreed to pay him on the first day of December, 1881, as a part payment for his interest and right in property and assets and business of O. II. Beckwith & Co., then the verdict and judgment in that case are conclusive upon the defendant, that he bought from Beckwith his right, title and interest in that property and assets, and that when that suit was brought Althrop owed Beck*with that five hundred dollars.”
    7. “ The real issue in this case is whether any contract was made between these parties, for the sale on the one hand, and for the purchase on the other of the property, assets and business of O. H. Beckwith & Oo. The plaintiff claims that there was such a contract made and consummated. The defendant claims thathe never made any contract at all, but that it rested in mere propositions on his part, which Beckwith never fulfilled. If you believe from the evidence that the only cause of action upon which evidence was given in the former suit, was the one founded upon a sale and purchase of the plaintiff’s rights and interest in that property and business, you must take the verdict and judgment in that case as conclusive evidence that a contract of sale and purchase was made.”
    The jury found for the plaintiff, assessing his damages at $6,000, on which judgment- was given and the defendant brings error to this court.
    W. Gr. & A. T. Ewing, for plaintiff in error.

    Messrs. Sleeper & Whiton, for defendant in error.
   McAllister, P. J.

The only cause of action which the plaintiff below sought to make out on the trial, was the sum of two thousand dollars claimed to be due and owing to him by the defendant below, upon an alleged verbal express contract, set out in the special counts of his declaration. The fact of the making any such contract, in respect to the subject-matter in question, was denied and strongly contested by the defendant. Such alleged contract being verbal, the questions whether the minds of the parties came to an agreement, and what were the terms and conditions of that agreement, would ordinarily be matters of fact to be determined by the jury, under the proper instructions of the court.

The plaintiff below, in order to stop the defendant and conclude him from contesting the existence or validity of said alleged verbal contract, by a verdict and judgment in a former suit between them, gave in evidence a declaration, plea, verdict and judgment in said former suit. Such declaration was in assumpsit, containing one special count, upon a contract in terms similar to, but not the same as,, either of those set out in the special counts in this present suit, averring for breach, the non-payment of five hundred dollars on or before Dec. 15, 1881; also all the common counts in assumpsit; the plea was merely the general issue, the verdict was general, finding the issues for the plaintiff, and assessing his damages at five hundred and thirteen dollars and eighty-three cents; the judgment was the ordinary one upon such a verdict.

The general rule applicable to such a case is, that the law casts the onus of establishing an estoppel upon him who invokes it. Freeman on Judgments, 1st ed., § 276, and cases in note 4. In this case, the plaintiff below invoked the estoppel; the burden of establishing it was therefore upon him. Did he establish it? The answer to that question requires an answer to two others, viz.: 1. Were the verdict and judgment in such former suit conclusive evidence of the existence and validity of the alleged verba] contract in question in this present suit, without the aid of extrinsic evidence? 2. If not, then was there extrinsic evidence offered by the plaintiff, of such definiteness as to produce such certainty as the law holds indispensable to an estoppel in such cases?

Looking at the record in such former suit, it is impossible to say that the verdict and judgment there, afford conclusive evidence of the existence and validity of the verbal contract in question, in this present suit, even if we assume that the contract set out in the special count in that suit was substantially the same as that set out in one or the other of the special counts in this present suit, because it does not appear from the record of such former suit, that the existence and validity of such contract was a point or matter actually or necessarily passed upon by the jury in that case. For aught that appears upon the face of the record, they may have rendered their verdict upon the common counts. The Washington Steam Packet Co. v. Sickles, 24 How. (U. S.) 333; Ridgely v. Stilwell, 27 Missouri, 128; Lawrence v. Hunt, 10 Wend. 88.

In order to render the verdict and judgment in the former suit conclusive upon the question of the existence of such verbal contract, without the aid of extrinsic evidence, the record should show with convenient certainty that the precise point was determined, because if it merely shows that one or more of several distinct matters was, or might have been, determined, without indicating which, then the whole will remain at large, and there can be no estoppel. The cases all show thakestoppels arising from judicial proceedings must be certain. Wood v. Jackson, 8 Wend. 36, where these propositions were affirmed by Chancellor: “A verdict can not be urged as an estoppel to the litigation of a fact which was not absolutely necessary to the finding of the verdict in the previous suit.” King v. The Inhabitants of Knaptoft, 4 Dow. & Ryl. 469: “And the court will never go into an examination of the jurors in the former cause, to ascertain upon what grounds their verdict was pronounced. Neither will a verdict be considered as an estoppel merely because the testimony in the first suit was sufficient to establish a particular fact.” Burton v. Shaw, 14 Gray, 433-9; Aiken v. Peck, 22 Vermt. 225. In Foster v. Busteed, 100 Mass. 409, the court announces what seems, from the weight of authority, to be the true rule: “To be a bar to future proceedings, it must appear that the former judgment neeessarih/ involved the determination of the same fact, to prove or disprove which it is offered in evidence. It is not enough that the question was in issue in the former suit. It must also appear to be precisely determined.”

. It is clear from the above authorities, that the record in the former suit, unaided by extrinsic evidence, was insufficient to prove the fact of the existence and validity of such verbal contract, and operate as an estoppel upon the defendant below. And we are of opinion that the parol or extrinsic evidence introduced was not sufficient to help out such record. It was lacking in the definiteness and certainty which the law holds indispensable to an estoppel by judicial proceedings. There is nothing contained in it which shows, with any degree of certainty, that the precise point or matter was actually or necessarily determined bjr the verdict in that case.

By the third instruction for plaintiff below, the jury were instructed in these words: “The first special counts in the declaration in this suit, and in the former suit in this court between these parties, are substantially on the same contract of sale and purchase. The verdict and judgment in the former suit are conclusive between these parties upon the issues joined and tried in that case.”

By the first of these propositions, the court assumes to pass upon the question of the identity of the alleged contracts in the two suits. Taking the evidence of the plaintiff below to be true, he and the defendant made two verbal contracts in reference to the subject-matter which were substantially different in terms. It seems to us that the question of the identity of contracts was one of fact to be determined by the jury. 1 Greenl. on Ev., Redf’s Ed., § 532, and cases in note 2.

But taking both propositions together, they amount to a direction by the court, that the verdict and judgment in the former suit were f&r se conclusive as to the existence of the contract, set out in the special count in the former suit; that the contract set out in the present suit was the same, and thus leaving the jury to draw the inference that the contract in the present suit was thereby conclusively established. The authorities above cited clearly show, that under the record in the former suit, the verdict and judgment therein can not, from such record, be regarded as conclusive of the existence and validity of the contract set out in the special count in that suit, merely from the issues joined and tried in that case, because such issues involved other and distinct matters. They show that it was not sufficient that the fact of the existence of such contract was in issue, or even that evidence was given in support of it in such former suit; but that the burden was upon the plaintiff below, who invoked the estoppel, to show with convenient certainty that such fact was actually or necessarily determined by the verdict. That instruction was improper, misleading and should not have- been given.

By the eighth instruction for plaintiff below, the jury were told that “ the real issue in this case is, whether any contract was made between these parties for the sale, on the one hand, and for the purchase, on the other, of the property, assets and business of O. H. Beckwith & Go.” That direction was so manifestly erroneous and misleading that we shall waste no time in analyzing it. For the errors pointed out, the judgment of the court below should be reversed, and the cause remanded.

Judgment reversed.


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    Nathan Corwith v. Village of Hyde Park.
    1. Judgment in condemnation proceeding. — The ordinary judgment in proceedings to condemn private property for public use, is but conditional, and not absolute, where the property has been neither actually taken or damaged by the party so seeking to condemn, and such party may, within a reasonable time, abandon the proceedings. But if such party shall, without payment or tender of the compensation awarded and without the consent of the owner, appropriate the property by taking possession, then such owner may have his action of ejectment to recover the possession or trespass for damages, or he might bring case or perhaps waive the tort and maintain debt for the amount awarded.
    2. WnEN judgment becomes absolute. — When the proceedings have progressed to judgment and the party seeking to condemn has taken possession of the property with the consent of the owner, the judgment becomes absolute, will bear interest, as in cases of ordinary judgments in common law actions, and if the condemning party be not a municipal corporation, against whieh an execution can in no case issue, execution may be awarded upon it, because such taking possession ipso facto gives the owner a vested right in the compensation.
    3. Remedy. — The special remedy is exclusive as to both parties where each may resort to it. If either may be the actor, neither can complain that the other did not first proceed under it. The owner can not, therefore, maintain an action at common law, where he fails to resort to the remedy provided for him by the statute. But if the other party alone has the power, or is under special obligation to carry it into effect, and is in default for not having done so within a reasonable time, the injured owner is not deprived of his remedy by action.
    4. Action oe debt — Judgment in condemnation proceeding.— An action of debt brought by appellant against appellee, a village, based upon a judgment rendered in December, 1873, in favor of the former against the latter, in a proceeding upon the petition of the village, under an ordinance ordering the opening of a certain street and the condemnation of land for that purpose, a portion of which was appellant’s, the ordinance providing that the expense of said improvement be paid wholly by means of a special assessment. The third count in the declaration set out the ordinance, the condemnation proceedings thereunder and said judgment, alleged the taking possession, with the consent of the owner, after said judgment, and the refusal of appellee, after demand, to pay the same, and the neglect and refusal, at all times, to raise the amount by any of the means provided by the charter of said village, and the abandonment of all efforts to do so. A demurrer was sustained to this count. Held, that the count in question contains sufficient to constitute a legal liability on the part of appellee to appellant for the amount of said judgment and interest, and that such liability being for a sum certain, the action of debt may be maintained upon it.
    Appeal from the Superior Court of Cook county; the Hon. Eollin S. Williamson, Judge, presiding.
    Opinion filed April 24, 1884.
    This action was debt, brought by the appellant, Corwith, against the appellee, the village of Hyde Park, and based upon a judgment rendered in the superior court Dec. 29, 1873, in favor of the former against the latter, for the sum of $1,017.45, in a proceeding upon the petition of said village of Hyde Park, theretofore filed in said court, under an ordinance ordering the opening of a certain public street in said village, and the condemnation of land for that purpose, a portion of which being land of the plaintiff; such ordinance providing that the expense of said improvement be paid wholly by means of a special assessment.
    The declaration contains three counts, the third of which sets out said ordinance, the condemnation proceedings on the part of the village thereunder, and said judgment; it alleges that, at the time, the plaintiff was the owner in fee of a portion of the land sought to be condemned, describing it, for the taking of which the amount of said judgment was awarded as compensation; that upon said judgment being rendered, the defendant, with the consent of the plaintiff as such owner, took possession of plaintiff’s said land for said purpose, and has ever since retained and used the same as a portion of said public street; and that, although the plaintiff, after such taking, demanded payment of said judgment by said defendant, the latter not only neglected and refused to pay the same, or any part thereof, but neglected and refused, at all times, to raise the amount necessary to pay the same by any of the means provided by the charter of said village, and abandoned all efforts to do so, by means whereof a cause of action hath accrued to the plaintiff to demand and have payment of the said judgment and interest thereon, etc. The defendant dernurred generally to the whole declaration, which the court sustained and gave judgment for defendant, from which plaintiff prosecutes this appeal.
    Mr. Consider H. Willett, for appellant;
    as to condemnation judgments, cited Chicago v. Barbian, 80 Ill. 482; Hyde Park v. Dunham, 85 Ill. 569; Chicago. v. Shepard, 8 Bradwell, 602; Beveridge v. Com’rs, 100 Ill. 75; Beveridge v. Com’rs, 7 Bradwell, 460; Bloomington v. Miller, 84 Ill. 621; St. L. & S. E. R. R. Co. v. Teters, 68 Ill. 144.
    As to when the action of debt may be maintained: Manning v. Pierce, 2 Scam. 4; Sutherland v. Phelps, 22 Ill. 92; Fitzsimmons v. Hall, 84 Ill. 538; Greathouse v. Smith, 3 Scam. 541; Byrne v. Etna Ins. Co., 56 Ill. 32; Jacksonville v. Black, 36 Ill. 507; La Salle Co. v. Simmons, 5 Gilm. 513; Bigelow v. Cambridge, etc., Co., 7 Mass. 201; Moble v. Richardson, 1 S. & R. (Ala.) 12.
    Mr. A. W. Green, for appellee.
   McAllister, P. J.

We regard the doctrine as fully settled in this State, that the ordinary judgment in proceedings to condemn private property for public use, is but conditional and not absolute, where the property has been neither actually taken or damaged by the party so seeking to condemn, and such party may, within a reasonable time, abandon the proceedings. While, on the other hand, if such party shall, without payment or tender of the compensation awarded, and without the consent of the owner, appropriate the property by taking possession, then such owner may have his action of ejectment to recover the possession, or trespass for the damages, which might be the value of the property: Smith v. Railroad Co., 67 Ill. 191; or he might bring case, or perhaps, waive the tort, and maintain debt for the amount awarded. But when the proceedings to condemn have progressed to judgment, and the party seeking to condemn has taken possession of the property with the consent of the owner, then the judgment becomes absolute, will bear interest, as in cases of ordinary judgments in common law actions, and, if the condemning party he not a municipal corporation against which an execution can in no case issue, ^execution may be awarded upon it; because such taking possession, ipso facto, gives the owner a vested right in the compensation. St. Louis & S. E. R. R. Co. v. Teters, 68 Ill. 144; City of Chicago v. Barbian, 80 Ill. 482; South Park Com’rs v. Dunlevy, 91 Ill. 49; Beveridge v. West Chicago Com’rs, 100 Ill. 75.

It is a "general rule applicable to such cases, that if the amount of compensation is ascertained, but the statute provides for no means of enforcing the payment, the common law action of debt will lie. Bigelow v. Cambridge Turnpike Co., 7 Mass. 202; Lebanon v. Olcott, 1 N. H. 339; Battler v. Braintree, 14 Vermont, 348.

But it was urged by appellee’s counsel that here the statute did provide for the means of enforcing payment, because the village of Hyde Park is incorporated under the general incorporation act of 1872, for cities and villages, and under Art. 9 of that act, the village was required to provide in the ordinance for the improvement, whether it should be made by special assessment or by special taxation of contiguous property, or general taxation, or both: R. S. 1874, p, 232; that the ordinance here prescribing that it should be by special assessment, that remedy was exclusive. In City of Chicago v. Shepard, 8 Bradwell, 610, we held that it was the established rule that such remedy was exclusive, and amounted to an implied prohibition of any other, so long as that prescribed was adhered to.

But an examination of the statute shows that the power to carry that remedy into effect and the duty of doing so is confided to, and imposed upon, the trustees of the village, the property owmer having no power or duty in the premises. It was said in argument, that the appellant could have enforced the performance of such duty by mandamus. It is averred in the declaration, that it was the duty of the village to proceed and collect the moneys, but that it neglected and refused so to do; so that a violation of legal duty is not only admitted by the demurrer, but urged as an answer to the action.

In Beveridge v. West Park Com’rs, supra, the court said: “ But it is said, plaintiff in error could have resorted to mandamus to compel payment. This is an admission that the commissioners were neglecting a plain legal duty, as that writ lies to enforce no other. Can plaintiff in error be answered by saying we were acting in palpable violation of our duty, but we are not liable to make compensation for the wrong, because you did not resort to legal proceedings to compel us to discharge a plain duty? Surely that can be no answer to the claim of plaintiff in error.”

Suppose it be conceded, for the sake of the argument, that the legal effect of the village taking possession of appellant’s property, with his consent, was not to give the latter a vested right in the compensation, and make it immediately due and payable, but it was to make it due and payable only after a reasonable time, on the part of the village, to raise the amount by means of a special assessment; would not the law, in such case, imply a duty or undertaking, on the part of the village, to use due diligence to collect the means in such manner? Most clearly it would. If that be so, then must it not follow according to the analogies of the law in other cases, that, if the village neglected to use such diligence, and failed to collect the assessments for that reason, then its liability to pay the judgment would become absolute? In City of Chicago v. The People, ex rel., 56 Ill. 333, the city had entered into an express contract to pay for a public improvement when certain special assessments were collected, and the rule was announced that “if a person promise to pay a sum of money, Uohen he shall collect his demands of another, then if it appear that he had no demands, or if he have and fail to use diligence to collect them, in either case the promise may be enforced as absolute.”

In Pierce on Railroads, Ed. of 1881, p. 178, we find this statement of the law, which is supported by numerous cases in the notes: “The special remedy is exclusive as to both parties where each may resort to it. If either may be the actor, neither can complain that the other did not first proceed under it. The owner can not, therefore, maintain an action at common law, where he fails to resort to the remedy provided for him by the statute. But if the company alone has the power, or is under a special obligation to carry it'into effect, and is in default for not having done so within a reasonable time, the injured owner is not deprived of his remedy by action.”

We are of opinion that the third count of the declaration contains sufficient to constitute a legal liability, on the part of the defendant, to the' plaintiff below, for the amount of said judgment and interest, and that such legal liability being for a sum certain, the action of debt may be maintained upon it. 1 Chit. Pl. 14th Am. Ed. 108; Blanchard v. Maysville, etc., Turnpike Co., 1 Dana, 86.

The judgment of the court below will therefore be reversed and the cause remanded, with directions to the court below to sustain the demurrer to the first and second counts, and overrule it to the third count of the declaration.

Judgment reversed.


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    Martin Keller v. Hans Christian Hansen.
    Witnesses, credibility or — Instruction.—Where the court instructed the jury as follows, 1 ‘The testimony of one credible witness is entitled to more weight than the testimony of many others, if, as to those other witnesses, the jury have reason to believe and do believe, from the evidence and all the facts before them, that such other witnesses have knowingly and willfully testified falsely and untruthfully, and are not corroborated by other credible witnesses or by circumstances proved in the case,” and the circumstances of the case were that plaintiff testified in his own behalf in direct conflict with the testimony of defendant and many witnesses in his behalf. Reid, that the instruction is erroneous; there is no such rule of law as that embraced in the instruction. It is also erroneous in omitting the hypothesis is that the “ many witnesses ” had so falsely testified as to some material fact or point in the case.
    Error to the Superior Court of Cook county; the Hon. Elliott Anthony, Judge, presiding.
    Opinion filed April 24, 1884.

      Messrs. Rubens, McGaeeex & Ames, for plaintiff in error;
    as to instructions to jury to disregard testimony, cited Evans v. George, 80 Ill. 51; Smith v. C. & W. I. R. R, Co., 105 Ill. 522.
    Mr. Adolph Lund, for defendant in error;
    as to credibility of witness, cited The Santisima Trinidad, 7 Wheaton, 338; Wallace v. The State, 28 Ark. 534; State v. Elkins, 63 Mo. 159; City of Chicago v. Smith, 48 Ill. 108; Huber v. Zueber, 3 MacArthur, 484; Reynolds v. Greenbaum, 80 Ill. 416.
   McAllister, P. J.

This was an action of trespass for an assault and battery, brought by Hansen against Keller. The pleas were not guilty and son assault demesne, replication, de inguria. On the trial the plaintiff was a witness in his own behalf. Upon the issue as to which party committed the first assault, the plaintiff testified positively that it was the defendant. On the other hand, the defendant, being a witness for himself, testified, not only that he did not commit the first assault, but that the plaintiff did, by striking him on the hand and head before he offered any violence to the plaintiff; and he also gave a detailed account of the circumstances attending the disturbance. The defendant was corroborated by the testimony of two witnesses, who were not participators in, but spectators of the whole affair, and in part, circumstantially, by two other witnesses. The facts as to which the testimony was conflicting were material. The court gave, for plaintiff, this instruction: “ The court instructs the jury, that the testimony of one credible witness is entitled to more weight than the testimony of many others, if, as to those other witnesses, the jury have reason to believe and do believe from the evidence and all the facts before them, that such other witnesses have knowingly and willfully testified falsely and untruthfully, and are not corroborated .by other credible witnesses, or by circumstances proved in the case.”

The trial resulted in a verdict and judgment for plaintiff, for five thousand dollars, and the defendant brings the case here on error.

It was said in argument, by plaintiff’s counsel, that the above instruction embraces merely abstract propositions of law, and if they prove incorrect, the judgment should not, for that reason, be reversed, because the giving the instruction could not have been prejudicial to the defendant below. There is the form of abstractedness, so far as respects the first two paragraphs of the instruction, but it then becomes concrete, so that the whole is linked to the case, and as, we think, with a strong likelihood of misleading the jury to the prejudice of the defendant below, because it assumes that somebody was a witness in the case who was invested with all the characteristics of a credible witness, irrespective of what he may have testified to, his appearance as to honesty and ability, the consistency of his testimony with facts and circumstances testified to by other witnesses, or its conformity with experience. It assumes that the testimony of that one credible witness stands opposed by the testimony of many other witnesses. The circumstances of the trial show that the plaintiff below occupied just that position; that his testimony was in direct conflict with that of many other witnesses as to material points in the case that those many other witnesses were the defendant and the witnesses on his behalf. Now what could be more natural, under the circumstances, than for the jury to suppose that the court intended, by this instruction, to designate the plaintiff and characterize him as the one credible witness, and to designate the defendant and the witnesses on his behalf as the many others? The court below, therefore, instructed the jury as to the weight of evidence. There is no such rule of law as that embraced in the instruction.

However the proposition might be as matter of fact, there being no such rule of law, the instruction shonld not have been given. Chittenden v. Evans, 41 Ill. 251; Otmer v. The People, 76 Ill. 149.

The tests by which the direct testimony of witnesses should be weighed by the jury, are given by one of the most philosophical of writers upon the law of evidence, as follows: “The credit due the testimony of witnesses depends upon, first, their honesty; secondly, their ability; thirdly, their numbers, and the consistency of their testimony; fourthly, the conformity of their testimony with experience; and fifthly, the coincidence of their testimony with collateral circumstances.” 1 Starlde, 544. By the instruction in question these tests are all ignored, substantially, if not literally., Il is also bad, because it omits the hypothesis that the many witnesses “ had so falsely testified as to some material fact m point in the case.” Swan v. The People, 98 Ill. 610, and cases there cited.

Superadded to all these objections, we can find in the record no basis in fact for submitting to the jury at all the question whether the defendant and his witnesses had knowingly and willfully testified falsely and untruthfully. All the testimony in opposition is merely that of the plaintiff, partially corroborated by one other witness. By the process of such an instruction, as novel as it is subtle, a plaintiff, with nothing more to back him than the ordinarily good character of which the law presumes every person possessed until the contrary is shown, could nullify the testimony of a score of witnesses testifying in direct opposition to him. though each was possessed of a like good character.

Other points have been urged, but which, as presented by the record, we do not deem well taken; but, for the error in giving the above instruction, the judgment will be reversed and cause remanded.

Judgment reversed.


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    A. M. Brainard v. Albert J. Norton.
    Computation op time — When last day is Sunday. — Where a judgment was rendered Dec. 18, 1882, and the appeal bond was filed Jan. 8, 1883. Held, that Jan. 7th being Sunday, the bond was properly filed Jan. 8th, according to the statutory rule of computation: R. S. Ch. 131, § 1, clause 11.

      Appeal from the Circuit Court of Cook county; the Hon. William H. Barnum, Judge, presiding.
    Opinion filed May 20, 1884.
    Mr. E. W. Adkinson, for appellant;
    cited R. S., Ch. 131, § 1, clause 11; Roan v. Rohren, 72 Ill. 582.
    Mr. Albert J. Morton, for appellee.
   McAllister, P. J.

Appellee'Morton, on the 18th day of December, 1882, obtained judgment in justice’s court, against appellant Brainard, for eighty dollars and fifty cents with costs. For the purpose of taking an appeal to the Circuit Court of Cook county, in the said cause, Brainard entered into bond with surety, as required by the statute, and on the &th day of January, 1883, filed the same with, and had it approved by, the clerk of the said court. On the 9 th of July, 1883, the transcript of the justice was filed in that court, and on the 21st of September, 1883, on motion of appellee Morton, the court dismissed the appeal.

It appears from the bill of exceptions, that the 7th day of January aforesaid was Sunday, and that the court dismissed said appeal upon the ground, that the filing the bond on the 8th of January was one day too late. Whether or not that was so is the only question presented by this appeal.

The statute authorizing appeals requires that bond in such case shall be filed within twenty days from the rendition of the judgment from which the appeal is to be taken. §§ 62 and 64, p. 647, R. S. 1874.

But the eleventh clause of § 1, Chap. 131, entitled “Construction of Statutes” (E. S. 1874, p. 1011), is as follows: “Eleventh. The time within which any act provided by law is to be done, shall be computed by excluding the first day and including the last, unless the last day is Sunday, and then it also shall be excluded.”

The statute first above referred to provides for the filing the appeal bond, and the time within which it is to be done, viz., twenty days from the rendering of the judgment. The act of filing the appeal bond is certainly an act provided by law to be done within a specified time. We are unable to perceive any reason why the above statutory rule of computation does not apply, and applying it, the 7th day of January being Sunday, the bond was properly filed on Monday the 8th. The judgment below will be reversed and the cause remanded.

Judgment reversed.


author: Bailey, J.

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    Mabel L. Derby v. Abraham H. Derby.
    Husband and wife — Divorce—Domicile of wife. — A wife, after the commission by her husband of an offense or injury which entitles her to a divorce, is under no further legal obligations to make his residence or domicile hers, but is, for all the purposes of seeking redress under the statute in relation to divorce, at liberty to acquire or establish for herself a residence or domicile separate from his, and if such residence has in it the proper element of permanence, and is acquired in good faith, it is sufficient to authorize a decree of divorce, although the residence and domicile of the husband may be in another and a foreign jurisdiction.
    Appeal from the Superior Court of Cook county; the Hon. Henry M. Shepard, Judge, presiding.
    Opinion filed May 20, 1884.
    Mr. E. R. Bliss and Mr. Cyrus Bentley Jr., for appellant;
    as to legal significance of term “ residence,’’ cited Supervisors v. Davenport, 40 Ill. 197; Town of Freeport v. Supervisors, 41 Ill. 495; Smith v. The People, 44 Ill. 16; Way v. Way, 64 Ill. 406.
    A wife, for the purposes of a divorce suit at least, may establish a separate residence or domicile: Turner v. Turner, 44 Ala. R. 437; Tolen v. Tolen, 2 Blackford (Ind.), 407; Jenness v. Jenness, 24 Ind. 355; Rhyms v. Rhyms, 7 Bush (Ky.), 316; Harding v. Allen, 9 Greenleaf (Me.), 140; Goodwin v. Goodwin, 45 Me. 377; Harteau v. Harteau, 14 Pick. 181; Garner v. Garner, 56 Md. 127; Wright v. Wright, 24 Mich. 180; Pate v. Pate, 6 Mo. App. 49; Frary v. Frary, 10 N. H. 61; Payson v. Payson, 34 N. H. 518; Hopkins v. Hopkins, 35 N. H. 474; Yates v. Yates, 13 N. J. Eq. 280; Johnson v. Johnson, 4 Paige (N. Y.), 459; Irby v. Wilson, 1 Dev. & Bat. Eq. (N. C.) 568; Schonwald v. Schonwald, 2 Jones Eq. (N. C.) 367; Colvin v. Reed, 5 Smith (Pa.), 375; Ditson v. Ditson, 4 R. I. 87; Fickle v. Fickle, 5 Yerg. (Tenn.) 203; Schreck v. Shreck, 32 Texas, 518; Huckaby v. Huckaby, 35 Texas, 620; Hubbell v. Hubbell, 3 Wis. 662; Gleason v. Gleason, 4 Wis. 64; Phillips v. Phillips, 22 Wis. 256; Shafer v. Bushnell, 24 Wis. 372; Craven v. Craven, 27 Wis. 418; Dutcher v. Dutcher, 39 Wis. 651; Cheever v. Wilson, 9 Wall. (U. S.) 108.
   Bailey, J.

This suit was brought by Mabel L. Derby against Abraham H. Derby, in the Superior Court of Cook county, on the 8th day of Hovember, 1883, for a divorce on the ground of desertion. At the hearing, which was eon parte, it appeared from the evidence, that the parties were married in the State of Hew Tork, on the 17th day of March, 1869, and lived and cohabited together in that State from the time of their marriage until some time in September, 1879, when the defendant, willfully and without any reasonable cause, deserted and abandoned the complainant and went to another jiart of the State of Hew Tork to live, and subsequently to the State of Pennsylvania, where he has ever since resided; that he never resided or had his domicile in Illinois; that his desertion and abandonment of the plaintiff had continued from September, 1879, up to the date of the hearing; that in August, 1882, which was more than one year prior to the com7 mencement of the suit, the complainant removed to Illinois, with the intention of remaining permanently in this State, bringing with her a little daughter, the fruit of her marriage with the defendant; that she first went to the county of De Kalb, and after remaining there witli friends for about six weeks, came to the city of Chicago and engaged in the business of dressmaking, and has lived in Chicago ever since.' 'These facts appearing, the court below held that they were insufficient to authorize the granting' of a decree of divorce, and dismissed tlie bill at complainant’s costs, for want of jurisdiction.

Under our statute in relation to divorce, where the offense or injury complained of is not committed within this State, or while one or both the parties resides within this State, it must appear, before a divorce can be granted, that the complainant has “resided in the State one whole year next before filing his or her bill.” In this case the evidence sufficiently establishes the actual and bona fide residence of the complainant in Illinois, for the full period required by the statute, provided she was capable in law of acquiring such residence. The court below seems to have been of the opinion that the defendant being a non-resident, the legal residence of the complainant necessarily followed that of her husband, and consequently, that she had not established, and so long as her husband continued to reside elsewhere, was incapable of establishing such residence here as would give the court jurisdiction. In accordance with this view the relief prayed for was denied, and the correctness of this ruling is the only question presented by this appeal.

It is a familiar and well recognized rule of law, that marriage creates a unity of the parties which gives them one domicile, and as the husband has the authority to determine where that domicile shall be, the wife’s domicile as a consequence follows that of her husband. This rule, though artificial and founded upon the theoretic identity of the persons and interests of the husband and wife, is doubtless of the highest importance to society, in that upon it rests to a great degree the unity and integrity of families and homes. But while it should therefore be jealously adhered to and enforced wherever it properly applies, we are fully authorized by both reason and authority in applying to it the maxim that where the reason of the rule ceases, the rule itself ceases.

Whenever'the law permits the wife to bring suit against her husband for a divorce, it ceases to regard the theoretic or ideal unity of their persons and interests, but recognizes the wife as having a separate existence and separate interests and rights, and accords to her the remedies appropriate to the situation in which she is thus placed. As said in Colvin v. Reed, 55 Penn. St. 375, “ The unity of person created by the marriage is a legal fiction, to be followed for all useful purposes, and not to be used to destroy the rights of either, or contrary to the principles of natural justice, in proceedings, which, from their nature, make them opposite parties. It required their mutual consent to establish the relation from which that unity arises, and the same law of right demands them to be viewed in their separate natural condition when either proceeds against the other to destroy this relation. It is the necessary effect of their being opposite parties to the same proceeding. Upon the dissolution of the marriage, therefore, each has a right to be heard as a natural person.”

Some decisions are to be found in this country which hold that, after the offense for which a decree for divorce is sought has been committed, the wife can not acquire a new domicile for the purposes of a divorce, but it will be found on examination that most decisions of this character turn largely if not wholly upon the peculiar provisions of local statutes. The weight of authority, however, is, we believe, greatly the other way. In Cheever v. Wilson, 9 Wallace, 108, the validity of a decree of divorce obtained in the State of Indiana was directly in issue. There the complainant, the wife, after the commission of the offenses for which she sought a divorce, went from the District of Columbia, where she had been domiciled with her husband, to the State of Indiana, and afterward filed her bill charging desertion and cruelty, her husband never having been domiciled in that State. The court, in affirming the validity of the divorce, say: “It is insisted that Cheever never resided in Indiana; that the domicile of the husband is the wife’s, and she can not have a different one from his. The converse of the latter proposition is so well settled that it would be idle to discuss it. The rule is, that she may acquire a separate domicile whenever it is necessary or proper that she should do so. The right springs from the necessity for its existence, and endures as long as the necessity continues. The proceeding for a divorce may.be instituted where the wife has her domicile. The place of marriage, of the offense, and the domicile of the husband are of no consequence.”

The doctrine has°been recognized in "Wisconsin in a series of decisions, that for the purpose of bringing a suit for a divorce, the wife may acquire a residence separate from her husband, and that, from the necessity of the ease, this rule is essential to make effectual her right to maintain such an action. Craven v. Craven, 27 Wis. 418; Shafer v. Bushnel, 24 Id. 372; Phillips v. Phillips, 22 Id. 256; Hubbell v. Hubbell, 3 Id. 662; Manley v. Manley, 3 Pin. 390.

In Moffatt v. Moffatt, 5 Cal. 281, it is held that the desertion of a wife by her husband entitles her to her own domicile.

Tolen v. Tolen, 2 Blackf. 407, was a case identical in all its essential features with the one at bar. The statute of Indiana in relation to divorce provided “that all persons who shall have resided in the State one year shall be entitled to the benefit of the act.” The parties were married in Kentucky, ancl while domiciled there the husband deserted his wife and some years afterward she removed to Indiana and became a resident of that State. Subsequently, her husband never having resided in Indiana, she brought her suit for a divorce, and it was held that under the statute the court had jurisdiction of the suit. This decision was approved and reaffirmed in Jenness v. Jenness, 24 Ind. 355.

Harteau v. Harteau, 14 Pick. 181, was a libel for a divorce for desertion of the wife by the husband while the parties were domiciled in Hew York, the husband at the time the libel was filed still retaining his domicile in that State. The divorce was denied on other grounds, but the jurisdiction of the court was sustained. In the opinion, of the court, which was pronounced by Chief Justice Shaw, in discussing the applicability of the maxim that the domicile of the wife follows that of the husband, it is said: “ It' is probably a juster view, to consider that the maxim is founded upon the theoretic identity of person and of interest between husband and wife as established by law, and the presumption that, from the nature of the relation, the home of the one is that of the other and intended to promote, strengthen and secure their interests in this relation, as it ordinarily exists, where union and harmony prevail. But the la.w will recognize a wife as having a separate existence and separate interests and separate rights in those cases where the express object of all proceedings is to show that the relation itself ought to be dissolved, or so modified as to establish separate interests, and especially a separate domicile and home, bed and board being put — a part for the whole — as expressive of the idea of home. Otherwise the parties in this respect would stand upon very unequal grounds, it being in the power of the husband to change his domicile at will, but not that of the wife.”

The same doctrine is held or incidentally recognized in the decisions of most of the States, and we háve failed to find any well considered case based upon a statute similar in its provisions to ours, where a different view has been taken. Most of the decisions bearing upon the question will be found collected in the notes to the ninth chapter of Mr. Bishop’s Treatise on Marriage and Divorce, and that learned author in his text lays down the rule as follows: “When the law authorizes a suit between a husband and wife for divorce and makes the jurisdiction over it depend, among other things, on domicile, there is an irresistible implication that, if she needs a separate domicile to give effect to her rights, or if his case requires her to have one to make his effectual, the law has conferred it on her.” And again, “If a husband commits an offense entitling the wife to a divorce, she not only is discharged thereby immediately, and without judicial sentence, from her duty to dwell with him, but she must abandon him, or the cohabitation will be condonation, barring her of the remedy. In other words, she must establish a domicile of her own, separate from his, though it may or not be in the same judicial locality with his. Then the law which required this of her can not turn round and say it is not hers. Moreover, the reason for making his domicile hers has ceased.” Bishop on Mar. and Div., §§ 125, 126.

We find no decision in this State in any way conflicting with the rule as above stated. Deference is made to the case of Ashbaugh v. Ashbaugh, 17 Ill. 476, as holding a different doctrine. There the parties were married in Canada, and after being domiciled there for some years, the defendant, the husband, deserted his wife and came to this State. After he had resided here about three years, she came and filed her bill against him here, alleging such desertion. The question thus presented was not whether the complainant was capable in law of acquiring a residence or domicile of her own apart from her husband, but merely whether she was entitled to avail herself of the legal fiction which made his domicile hers. The court quote the maxim that in contemplation of law the husband and wife are one person, and that her residence follows his, but having done so, expressly waive a decision of the question whether that maxim is applicable to the case, or whether actual residence is not required by the statute, and place the¡decision of the case upon another and manifestly tenable ground, viz., that the defendant having resided, for more than two years in this State after deserting his wife the offense or injury complained of might be regarded as having been committed in this State, and while one of the parties was residing here, thus basing the jurisdiction of the court upon an entirely different provision of the statute.

In Davis v. Davis, 30 Ill. 180, the husband, a resident of Montgomery county, was guilty of extreme and repeated cruelty toward his wife, in consequence of which she left him and went to her father’s house in Madison county, and afterward brought suit in Montgomery county for a divorce. The report of the case fails to show how long the complainant had lived apart from her husband, or whether she went to Madison county with the intention of residing and making her home there. It was held that the Circuit Court of Montgomery county had jurisdiction of the suit, on the principle that the domicile of the husband was the domicile of the wife; but the question whether she might not have acquired another domicile so as to give the court of her separate domicile jurisdiction, did not arise.

Another case cited in support of the decision of the court below is Kennedy v. Kennedy, 87 Ill. 250. There, after the parties had lived together for years upon a certain homestead, the husband, with the view of moving into and occupying a new home, sold and conveyed said homestead, his wife consenting to and joining him in the conveyance; but when he moved to his new home, she refused to go with him, and remained at the old homestead with her brother, to whom it had been conveyed. After the lapse of two years, the husband brought suit for a divorce, alleging desertion, and the defense set up and relied upon by the defendant in her answer was, that he had deserted her in removing to his new home. The court held that the residence of the wife followed that of her husband; that it was her duty to go with him, and that her refusal to do so constituted desertion on her part. It seems too plain for argument that the questions involved in that case are utterly foreign from those arising here. The maxim that the domicile of the husband is the domicile of the wife was involved; and applied only by way of determining whether, in that case, the husband should be deemed to have deserted the wife, or the wife the husband; but the question whether, in case of desertion by the husband, the wife may not acquire a separate residence or domicile, neither arose nor was in any manner considered.

bio other decisions of our Supreme Court are cited in support of the decree in this case, and none, we think, can be found having any tendency to support it. It seems entirely clear to us, both in the light of reason and of authority, that a wife, after the commission by her husband of an offense or injury which entitles her to a divorce, is under no further legal obligation to make his residence or domicile hers, but is, for all the purposes of seeking redress under the statute in relation to divorce, at liberty to acquire or establish for herself a residence or domicile separate from his; and that if such residence has in it the proper element of permanence and is acquired in good faith, it is sufficient to authorize a decree of divorce, although the residence and domicile of the husband may be in another and a foreign jurisdiction. It follows that the decree of the court below is erroneous and must be reversed.

So far as our observation has gone, it has been the uniform practice of the circuit courts of the State for many years, to assume jurisdiction and pronounce decrees of divorce upon cases similar to the one before us, and upon the faith of such decrees, relations and rights of the utmost delicacy and importance have been acquired. Even if we regarded the question a doubtful one, which we do not, we should hesitate long before giving our assent to a rule, the effect of which would be to render all such decrees void, and involve the parties thereto in the very serious consequences which would be the natural and necessary result. If it is conceived that the law, as it stands, furnishes too great facility for divorces, the remedy is with the legislature and not with the courts.

The decree will be reversed and the cause remanded for further proceedings not inconsistent with this opinion.

Decree reversed.


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    Rosa Lazovert v. Morris Lazovert.
    This case presenting the same question as the preceding, is reversed for the reasons given in Derby v. Derby, ante.

    Appeal from the Superior Court of Cook county; the Hon. Henry M. Shepard, Judge, presiding.
    Opinion filed May 20, 1884.
    B. F. Shaeener, for appellant.
   Bailey, J.

This was a bill for a divorce on the ground of 3Xtreme and repeated cruelty. It appears that the parties were married in the city of Hew York, and that after their marriage and while they were living in Hew York, the defendant was guilty of various acts of cruelty toward his wife as charged in the- bill. Shortly afterward he deserted and abandoned her and went first to Montreal, Canada, and on being traced to that place by the complainant and her father, he absconded altogether and has not since been heard from. More than one year prior to the filing of her bill, the complainant, together with her father and his family, removed to this State and established'their residence in the city of Chicago, the father going into business here and the complainant living with him in his family. It does not appear that the defendant ever resided or had his domicile in this State. These facts appearing, the court below held that in contemplation of law, the complainant’s residence followed that of the defendant, and that she accordingly had acquired no such residence in this State as, under the statute, would give the court jurisdiction to grant the relief prayed for in the bill. In accordance with this view, the court entered a decree dismissing the bill at the complainant’s costs, and from that decree the complainant has appealed to this court.

In the case of Derby v. Derby; in which the opinion is filed simultaneously with this, we have fully considered and decided the same question presented by this record, and have there held that the decision of the court below dismissing the bill for want of jurisdiction was erroneous. For the reasons there given, the decree in this case will be dismissed and the cause remanded for further proceedings not inconsistent with this opinion.

Decree reversed.


author: Mr. Presiding Justice Higbee

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    Corn Product Refining Company, Appellant, v. William Cherry, Appellee.
    1. Master and servant—when doctrine of assumed risk does not apply. The doctrine of assumed risk does not apply as against a servant who is injured while performing work at the specific direction of his master.
    2. Instructions—when not erroneous in ignoring doctrine of assumed risk. An instruction is not erroneous ignoring the doctrine of assumed risk where such doctrine has no application to the cause.
    Action in case for personal injuries. Appeal from the Circuit Court of Madison county; the Hon. Chas. T. Moore, Judge, presiding.
    Heard in this court at the February term, 1907.
    Affirmed.
    Opinion filed September 13, 1907.
    Rehearing denied February 27, 1908.
    Thomas Stallings, for appellant; John A. Bloomingston, of counsel.
    J. M. Bandy, and Keefe & Sullivan, for appellee.
   Mr. Presiding Justice Higbee

delivered the opinion of the court.

This was a suit brought by appellee to recover for personal injuries, sustained by him while in the employ of appellant.

The declaration contains two counts. The first alleged that defendant used in its manufacturing plant, a certain hose with an iron nozzle, through which steam was forced in cleaning portions of the machinery connected with the boiler; that the nozzle was so defectively and insecurely attached to said hose, that it was liable to become detached when steam was forced through it; that appellant knew or, by the use of ordinary care, should have known the defective and insecure condition of the hose; that appellee was wholly inexperienced in cleaning said machinery by use of said hose, and did not know of the insecure fastening of the nozzle; that he was directed to use said hose and nozzle by his foreman and while so using it, the nozzle, by reason of its insecure fastening, became detached from the hose and steam was directed against the plaintiff and he was burned and scalded thereby. The second count alleged appellee was inexperienced in the use of steam machinery; that on the day in question he was taken from his usual duties by Ms foreman and ordered to hold the nozzle of said hose so as to direct the steam passing through the same upon certain machinery to be cleaned; that said nozzle did not appear to him to be securely fastened to the hose and he called the attention of the foreman to that fact; that the foreman examinéd or pretended to examine the fastening and informed plaintiff that the hose and nozzle were safe for him to use; that appellee thereupon proceeded to use the same as directed, and while so doing, the nozzle became detached from the hose by reason of its defective fastening, and he was burned and scalded by the steam. There was a plea of the general issue, a trial by jury, a verdict for $575 and judgment for that amount.

Besides the physicians who testified as to the nature, extent and severity of the injuries received by appellee, there were only three witnesses, appellee, who testified on Ms own behalf, and the foreman of the boiler room and the engineer, who testified on behalf of appellant. It appears from the proofs that on the morning of July 25,1906, appellee and two other men were working under a foreman in appellant’s boiler room at its factory at Granite City, Illinois, where he had been employed nearly a year. At the time the injury occurred and for sometime previous, he was head boiler washer. There were several large steam- boilers in the boiler room used by appellant and in these boilers many rows of water pipes or flues. These flues would necessarily become more or less covered with soot and dust from the fire below and to get the best results it was necessary to clean them from time to time. This was usually done by a man employed for that purpose, who was accustomed to use for this work, a hose attached to the boiler, on the other end of which was an iron nozzle, about four feet long, equipped with a handle. The cleaner would open the door at the end of the boiler, put the nozzle in between rows of flues and turn on the steam which would come with great force and blow away the dust and soot from the flues. He would then move to another place and so continue until all the flues were gone over. On the morning of the day in question, in the absence of the regular flue cleaner, the foreman ordered appellee to clean the flues in a certain boiler. Appellee at once proceeded to do the work he was instructed to do. While he was standing on a plank in front of one of the boilers, holding the nozzle, it became partly detached from the hose and fell down, catching the handle in his overalls and turning the escaping steam against him, whereby he was severely scalded.

Appellee testified that shortly after he began his work, he discovered a leakage of steam at the point where the nozzle was inserted in the hose and immediately informed the foreman thereof; that the foreman examined or pretended to examine the hose and nozzle and told him to go ahead with his work; that there was no danger. The foreman Hanley directly denied that he examined the nozzle and hose and told appellee to proceed with the work, but testified that appellee himself attached the nozzle to his hose that morning; that in doing so appellee made some changes in the connection; that Hanley who saw him at work, making the changes, told him to “look out” and that appellee said it would be all right. The engineer Brummer testified that while he and the foreman were passing through the machine shop, he saw appellee doing something at a vise; that the foreman spoke to the appellee, but that the witness did not pay any attention to what he said. Appellee testified he had never cleaned the flues before and was inexperienced in that work, while the foreman and engineer testified that he had worked at blowing the flues on former occasions.

It is insisted by appellant that as appellee saw the defect in the hose or nozzle, and worked with them for some time thereafter, he assumed the risk of injury from such defect. Appellee claims that he continued at the work in which he was engaged under direct command from his foreman.

In C. & E. I. R. R. Co. v. Heerey, 203 Ill. 492, it is said: “Where by the order of the master or one standing in that relation, the servant is directed to encounter a danger, and his duty being that of obedience, he does not assume the risk. In the case of a promise to repair or of a command, and perhaps some other cases, the question is one of contributory negligence on the part of the servant, depending upon whether the danger was so great that an ordinarily prudent person would not have encountered it. * * * The employee must always exercise the degree of care which an ordinarily prudent person would have exercised under the same circumstances, but he does not assume the risk resulting from a direct command.”

Whether appellee was at the time of the injury in the exercise of ordinary care for his own safety, the circumstances leading up to the injury, and the extent of the injury, were questions of fact for the jury and we find in the record no sufficient reason, arising out of the facts, for disturbing their verdict. Nor does it appear to us that the amount of the verdict is, as claimed by appellant, excessive.

Only one instruction was given for appellee and it instructed the jury if they found “from a preponderance of the evidence that the defendant was guilty of the negligence charged in the declaration, and that such negligence was the proximate cause of the plaintiff’s injury, and that the plaintiff was at the time of receiving such injury, in the exercise of reasonable care for his own safety, then the defendant is liable.” Appellant insists that this instruction is peremptory in its nature, and fails to call the jury’s attention to the assumption of the risk and is erroneous.

In Terra Cotta Lumber Company v. Hanley, 214 Ill. 243, relied upon by appellant to sustain its position, it is said: “The instructions complained of are peremptory in form and inform the jury, if they found from the evidence that plaintiff had made out his case as laid in his declaration, or any count thereof, they should find in favor of the plaintiff. The effect of said instructions was to eliminate the question of assumed risk from the case, as it is not averred in either count of the declaration, expressly or by implication, that the plaintiff did not assume the risk of being injured from the falling of the scaffold or that he did not know or have reason to know of its defective condition at the time it collapsed and fell.”

We are of opinion that both counts of the declaration in this case, by implication, negatived the idea of assumed risk and that therefore the instruction in question was not erroneous.

Appellant complains that the court refused four instructions and modified five others offered by it. The sixteen instructions given for appellant fully presented its theory of the case and all that was proper in the four instructions refused was fully covered by those given. The modifications of the five instructions by the court were proper and improved the several instructions to which they applied.

The judgment of the court below will be affirmed.

Affirmed.


text:
    John G. Dillinger, Appellee, v. Malinda Dillinger, Appellant.
    1. Divorce—what does not justify desertion. Meld, in this case that no legal justification for desertion appeared.
    2. Equity pbactice—when entry of default for want of answer erroneous. Where exceptions to portions of an answer are allowed and the remainder of the answer presents a material issue, it is improper to decree that the bill of complaint be taken as confessed for want of an answer.
    3. Equity pbactice—how denial of allegations of hill may he made. The material allegations of a bill may be denied by infer-, ence; specific denial is not essential. ■
    Divorce. Appeal from the Circuit Court of Jackson county; the Hon. Wm. N. Butleb, Judge, presiding.
    Heard in this court at the August term, 1907.
    Reversed and remanded.
    Opinion filed March 18, 1908.
    W. A. Schwartz and J. S. Kendall, for appellant.
    Herbert & Levy, for appellee.
   Mr. Presiding Justice Higbee

On November 12,1906, appellee filed a bill for divorce against appellant in the Circuit Court of Jackson county, alleging that the parties were married on July 21, 1892, and lived together as husband and wife until November 27,1897, at which time appellant wholly regardless of her marriage covenants and duty, wilfully deserted and absented herself from appellee without any reasonable cause, for the space of two years and upwards, and has persisted in such desertion and continues so to absent herself from appellee.

Appellant was served with summons, appeared and filed her answer to the bill.' By her answer she admits the marriage and other matters stated in the bill up to the charge of desertion. She denies that at the time named in the bill she wilfully deserted appellee and absented herself from him without any reasonable cause for doing so, and that she wilfully continued in such wilful desertion from said date until the present time. She admits that she and appellant are not living together at the present time, but says it is not her fault that they are living separate and apart. She states that she did everything in her power to make the home of appellee pleasant and agreeable, but that her life was rendered so unhappy at the home of appellant by certain members of his family, by a former marriage, that she could no longer bear the treatment she received and at about the date last mentioned she and appellant ceased to live together as husband and wife, since which time appellant has not contributed anything whatever to her support. She also sets out her manner of life and surroundings previous to her marriage, and states that appellee had filed a former bill for divorce against her which he had dismissed and charges that he has no just ground for bringing the present suit for divorce. *

To this answer appellee filed four exceptions, the first of which covering that part of the answer denying the material allegations of the bill, was overruled by the court and the others which covered the remaining portions of the answer, except some formal matters at the end, were sustained by the court, and a rule entered by the court on appellant to file a further answer.

Appellant thereupon filed another answer which specifically denied the material allegations of the bill and set up no other or further matter. To this answer the court also sustained exceptions and ordered appellant to file a supplemental answer. Subsequently appellant filed a supplemental answer which also denied the material allegations of the bill and set up specifically and at length the same reasons substantially, for leaving the home of appellant, as those stated in the first answer, except that it also alleged that on or about the 27th day of November, 1897, appellant by and with the knowledge and consent of appellee, went to the home of her married children, in the same township where appellee lived, where she has since remained.

Appellee filed exceptions to appellant’s supplemental answer which the court also sustained. Appellant then asked leave of court to file a further answer, which the court denied and over the objection of appellant, entered a default against her and heard evidence offered by appellee in open court. Upon the evidence so heard, the court entered a decree in favor of appellee granting him a divorce from appellant as prayed for in his bill. Appellant preserved proper exceptions to the rulings of the court against her and has brought the same to this court by appeal.

The main question presented is whether or not the rulings of the court in reference to the several answers of appellant were correct. We are of opinion that the original answer and the supplemental answer being the first and third answers filed by appellee, contained statements and allegations to which the court might and did properly sustain exceptions, but that after all improper matter was excluded enough remained to constitute a denial of each of the material allegations of the bill and present a material issue. This is especially true of the third or supplemental answer which expressly stated that appellant left appellee’s house with his knowledge and consent and went to the home of her married children. The court therefore erred in ruling the defendant to answer further after sustaining certain of the exceptions to the first answer, and in causing a default to be entered, after sustaining exceptions to a portion of the supplemental or third answer. Where exceptions to portions of an answer are allowed, and the remainder of the answer presents a material issue, it is improper to decree that the bill of complainant be taken as confessed for want of an answer. Yates v. Continental Ins. Co., 207 Ill. 512; Work v. Hall, 79 Ill. 196.

The second or amended answer filed by appellant, directly denied all the material issues presented by the bill and contained nothing else except formal matter.

An answer may either deny the facts stated in the bill or show some new matter in avoidance of the fact submitted. Stone v. Moore, 26 Ill. 165.

Appellee says this answer would have been sufficient if appellant had simply denied the desertion but that her answer does not do this. While appellant’s answer did not conform to the exact language of the bill in denying the desertion and used some additional words, yet upon the whole we think it must be fairly construed as a denial of the charge of desertion contained in the bill. We are of opinion this was a good answer and that the court below erred in sustaining the exceptions to it.

For the errors above indicated the decree in this case will be reversed and the cause remanded.

Reversed and remanded.


text:
    James E. Buck, Appellant, v. Hugh McIntosh, Appellee.
    1. Nuisance—when liability for maintenance of, commences. Where a party comes into possession of land as grantee or lessee with an existing nuisance upon the same, and he merely permits the nuisance to remain or continue, he cannot he held liable in an action for damages until he has been first notified or requested to remove the nuisance.
    2. Nuisance—right of individual abatement. The peremptory and summary abatement of a nuisance is justified upon the arising of an emergency which cannot be met by the ordinary processes of the law.
    Trespass. Appeal from the Circuit Court of Hamilton county; the Hon. P. A. Peabce, Judge, presiding.
    Heard in this court at the August term, 1907.
    Affirmed.
    Opinion filed March 18, 1908.
    Isaac H. Webb, J. H. Lane and W. F. Scott, for appellant.

      Thomas & Anderson and F. M. Parish, for appellee.
   Mr. Presiding Justice Higbee

delivered the opinion of the court.

Appellant brought suit against appellee in trespass, charging in his declaration that during the year 1906, he, as tenant for another, had raised a fine crop of corn which on November 22 was matured and ready to be gathered; that said lands were protected from overflow of surface water on the south side by an embankment eighteen inches high, erected on the north side of a ditch, both on the land he had rented; that on said date, when by reason of heavy rains, surface water filled said ditch and stood about fifteen inches high around the south side of the embankment, appellee cut the embankment causing the water to flow in and greatly injure appellant’s crop. Appellee filed a plea of not guilty and also a special plea in which he admitted cutting the levee and set up as a matter of justification, that he was possessed of land adjoining appellant’s on the south; that his land was the dominant heritage and that of appellant the servient heritage; that he had a right to have the surface water that fell on his land flow over the same onto appellant’s; that against his protest and objection appellant’s landlord built a levee to prevent this; that he requested appellant to remove the same, that he refused to do so and that he, appellee, then entered on appellant’s premises and removed part of the same, doing as little damage as possible. A jury was waived, trial had by the court and appellee found not guilty. The matters relied on by appellant to reverse the judgment, are that the decision of the court was contrary to the weight of the evidence, that the court erred in refusing to hold as the law certain propositions submitted by him and did hold as the law certain other propositions offered by appellee.

The controversy between the parties grew out of the following state of facts. About five or six years prior to the commencement of the suit Walter Johantgen owned the southeast quarter of section one and the appellee owned the northeast quarter of the northeast quarter and the east half of the northwest quarter of the northeast quarter of section twelve adjoining said first named tract on the south, both in the same township in Hamilton county, Illinois, and both included in the Haw Creek Drainage District. This district constructed a ditch called its “east lateral” from the southwest corner of said section one, north along the west side of section one to its main ditch; the then adjoining landowners in sections one and twelve, including Johantgen and appellee, constructed a joint ditch connecting with this lateral at the southwest corner of section one and running a mile east on the section line between sections one and twelve. The ditch was the widest where it entered the lateral and gradually grew narrower until at the southeast corner of section one it was only twenty to thirty inches wide. Adjoining appellee’s premises the ditch was all dug on Johantgen’s land and the dirt put on the north side of the ditch, Johantgen constructing the east half and appellee the west half of the ditch. There seems to have been no certain agreement or understanding that the dirt thrown out on the north side of the ditch was to be a levee, but Johantgen appears to have attempted to form one and use it as such. In some places he put in logs back of the dirt to hold it. When heavy rains came the water naturally flowed towards the ditch from the south onto Johantgen’s land, and the levee so formed, held the water and backed it on the appellee’s land. Appellee objected to this and cut holes in the levee to let the water through. There was considerable contention for several years over the matter with talk of legal proceedings on the part of Johantgen. Finally the matter seems to have been abandoned, places in the ditch allowed to fill up and part of the levee permitted to wash down or be worn down until it offered little resistance to the water. This was the condition when Johantgen sold out to W. W. Gray, appellant’s landlord, about two years before the present suit. After Gray got the land he cut a ditch from the northeast corner of appellee’s land to the northeast corner of section one, then along the north line of the section to its northwest corner, where it connected with the “east lateral.” He also cut a ditch east and west through the middle of the south half of section one running into the “east lateral”; and cleaned out, widened and deepened the old ditch on the south line of the section and rebuilt the old levee on the north side of the ditch, raising it some two feet high.

John Hunsinger was agent for Gray and attended to his matters pertaining to the drainage of the land. He had several talks with appellee without satisfactory results in regard to permitting the levee to remain. Appellee testified that he told Hunsinger he must leave openings, that if he backed the water onto him he would cut the levee. Hunsinger proposed to cut a ditch north from the one in controversy to the one running through the south half of the section and consulted appellee to see if that would satisfy him. Appellee testifies he told him “Yes, if you carry that water away. I don’t want it damming up on me,” and Hunsinger says appellee told him he did not want the levee there. This ditch running north as constructed did not carry all the water and in November, 1906, while appellant’s corn was still standing in the field, appellee found the water backed in on him twenty-five or thirty rods and admits the cutting of the levee to let the water through. When it was cut the water went through and damaged appellant’s corn and hindered him greatly in gathering what was not destroyed.

It clearly appears from the record that appellee’s land was the dominant heritage and the land farmed by appellant the servient; that the original embankment thrown up on the north side of the ditch by appellee and Johantgen, even if it was ever a continuous levee, which is doubtful, was not permitted by appellee to remain so and that it had become full of breaks or holes long prior to the time appellant’s landlord purchased the land on which it stood; and that at the time the levee was reconstructed and the gaps closed by-Gray, appellee never consented that it should be constructed and remain as a continuous permanent levee to back up water over his lands.

Whether appellant took possession of the land with notice that appellee would cut the levee in case the water backed up, was a controverted question.

The questions of law affecting the case were raised by propositions submitted to the court by the respective parties. Appellant complains that propositions 1, 2, 3 and 8 submitted by him were refused by the court. Propositions 1, 2 and 3 asserted in different ways, as the law, that when a party comes into possession of land as a lessee with an existing nuisance upon it, placed there by his landlord, the same cannot be abated to the injury of the lessee, until he has been notified to remove it; and proposition 8 stated that where the landlord creates a private nuisance wholly upon his own premises, and afterwards leases the premises to a person who does nothing in regard to the nuisance, except to allow it to remain, the same cannot be. lawfully abated by another who enters upon the lessee’s possession for that purpose, without first notifying the lessee to remove the same. The insistance of appellant is that these propositions stated the law correctly and that had the court so held, the finding must have been for him. While there is some conflict among the authorities on the subject, it seems to be the established rule in this state as held in Groff v. Ankenbrandt, 124 Ill. 51, where will be found a number of cases upon the subject, that “where a party comes into possession of land as grantee or lessee with an existing nuisance upon such land, and he merely permits the nuisance to remain or continue, he cannot be held liable in an action for damages until he has been first notified or requested to remove the nuisance.” And the reason for the rule there given is that' “it is not right that one who did not put the nuisance upon the premises in the first place should be held responsible for injuries that may not have been caused by any act of his own.”

But while the rule requires notice to the lessee before bringing suit against him, so that he can remove the nuisance and avoid a judgment for damages against him, yet the same rule would not necessarily apply in all cases to the abatement of a nuisance by the injured party.

It might be that to require a similar notice to be given before abating a nuisance, would deprive the injured party of all benefit to be derived from the removal of the nuisance. For instance it might have been in the case before us, that if notice was required and appellant could not have been readily found, the crops of appellee would have been destroyed by the water before notice could have been given.

The general rule giving an injured party the right to abate a nuisance such as this is not a matter of controversy.

In 1 Am. & Eng. Enc. of Law (2nd Ed.), 79, it is said: “Abatement of nuisances by private individuals has its origin in the common law, which allows this private and summary method of doing one’s self justice because, injuries which obstruct or annoy one in the enjoyment of such things as are of daily convenience and use, require an immediate remedy and cannot await the slow progress of the ordinary forms of justice.”

In Calef v. Thomas, 81 Ill. 478, our Supreme Court says: “The principles of law applicable to the case, are, in the main, well settled and familiar to the profession. Blackstone says a private nuisance is ‘anything done to the hurt or annoyance of the lands, tenements or hereditaments of another.’ Book 3rd (Sharswood’s edition) 214, side 216. And in the same book, at page 5, he also says, ‘whatsoever unlawfully annoys or doth damage to another, is a nuisance, and such nuisance may be abated, that is taken away or removed by the party aggrieved thereby, so as he commits no riot in the doing of it. But in order to justify the removal it must appear that the obstruction was wrongfully incumbering his premises, and that he therefore removed it, doing no unnecessary damage.”

We think the general rule relating to the abatement of nuisances was applicable to this case notwithstanding the fact that appellant was a lessee, and that under the circumstances the four propositions above referred to were properly refused by the court.

Appellant’s fifth proposition which stated that where adjoining landowners agree upon and construct a combined system of drainage, either landowner may repair or open up the drains in case they become filled and may enlarge the same so' as to properly drain the lands in accordance with the original plan, was modified by the court by adding thereto the words, “but such repairing or cleaning of the ditch must not go beyond the original contract.” While appellant excepted to the modification he has not indicated wherein he conceives it to be wrong, and an examination of it discloses nothing erroneous. What is above said will also dispose of the objections to the three propositions of law offered by appellee and held by the court as the law applicable to the case.

The evidence in the case was sufficient to sustain appellee’s case, no complaint is made as to the ruling of • the trial court upon questions of evidence and the theory of the law applicable to the case adopted by the trial court appears to us to have been the correct one, consequently the judgment appealed from will be affirmed.

Affirmed.