text:
    City of Bloomington v. Benjamin F. Read.
    1. Cities—Repair op sidewalks—Duty.—Cities are not bound to make their sidewalks absolutely safe under all circumstances. It is sufficient if they are not dangerous, and are reasonably safe for persons passing over them.
    2. Contributory Negligence.—If one knowingly exposes himself to danger which can be readily avoided, and thereby sustains an injury, he must attribute it to his own negligence.
    Appeal from the Circuit Court of McLean county; the Hon. Owen T. Beeves, Judge, presiding.

      Messrs. Bloomfield & Hughes and Mr. T. C. Kebeick, for appellant;
    that the city is.not liable for accidents caused by accumulation of ice or snow upon the sidewalk, without such accumulation becomes dangerous, cited Chicago v. McGiven, 78 Ill. 347.
    As to the care that should be exercised by persons passing along the walk: Lovenguth v. City of Bloomington, 71 Ill. 238; City of Centralia v. Krouse, 64 Ill. 19.
    Mr. W. C. P. Bemine, Mr. L. Weldon and Messrs. Stevenson & Ewing, for appellee;
    that the city having knowledge of the dangerous condition of the walk, is liable for not making repairs, cited Chicago v. McCarthy, 75 Ill. 602.
   Higbee, P. J.

This was an action brought in the McLean Circuit Court by appellee against appellant, to recover damages for an injury received by him while passing over a sidewalk in said city.

The declaration alleges that on the 28th day of November. A. D. 1876, the city having control of the sidewalks therein, on a public street called Main street, ought to have kept the same in good repair and condition. But the said city not regardingi etc., suffered the same to be and remain in bad and unsafe repair and condition, and divers of the planks wherewith the said sidewalk was laid, to be and remain broken, unfastened and but of place, by means whereof the plaintiff, who was then and there passing along and upon the said sidewalk, then and there necessarily and unavoidably tripped and stumbled upon and against the said broken and unfastened planks, the said planks being then and there out of place, of said sidewalk, and was thereby thrown and fell to and upon the said sidewalk, and thereby the hip of the plaintiff wras then and there dislocated, broken and bruised, and he became and was sick, lame and disordered, and so remained for a long space of time, etc.

The general issue was pleaded and a trial had, resulting in a verdict and judgment for plaintiff.

The evidence shows that Main .street ran north and south, and at the place where appellee received the injury there was a slough, and the sidewalk was built on piling. The walk was sixteen feet wide, of two-inch planks, sixteen feet long, laid lengthwise of the walk. The whole walk, including piles> stringers and planlcs, was of good material and was firm and solid. There were no holes, or broken or loose planks in the walk. The only defects in the walk at the time of the injury were, that about the center of the walk two planks had bulged up the whole length, making a raised ridge where the edges of these two planks met, from two and a half to three inches in heighth and sixteen feet in length; a similar rise, on the east side of this one, next to the buildings, and still east of this last rise there were two or three pieces of boards nailed on the walk, and the edges champered off.

On the west side of the raised place, in the center next to the street, the walk was smooth level, from six to eight feet in width, and safe to pass over. The evidence also shows that at the time of the injury the walk was covered with either ice, sleet or frost (the witnesses differing as to which it was), and slippery.

It is insisted by appellant that there is a fatal variance between the allegations of the declaration and the evidence.

But two witnesses, apjDellee and his son, were present when the injury was received. Appellee states that the accident occurred on the morning of the 28th November, 1876, between five and six o’clock, before daylight; I was acquainted with the street; distributed daily Pantagrajph in the morning and Leader in the' evening, and passed over place of accident for six or seven years, usually in the morning. I remembered this ridge in the walk, and thought I would keep out from it. It was not daylight when it happened; my first impression was that I caught on-the ridge, but I put my hand down and found myself lying across the ridge. I had known the ridge for quite a while; more than two or three weeks. I think it was not far from the center of the walk. On the outside of the ridge and west of it there was a level sidewalk, pretty wide. It was a level, plain sidewalk. To the east of the ridge there were several bad places between it and the building. It was that that induced me to go out. I was hunting for a good walk. I was not on the ridge; I was west of it. I passed to the west of the ridge before I came to it. Where I passed to the west there was a good level sidewalk. I had got to the west of the ridge before I met with the accident. When I fell I lay a little diagonally, my head a little to the south, and my body across the ridge. Was walking my ordinary gait; didn’t notice anything. Saw no loose boards in the walk; none turned up at the ends. My son was with me. I was walking on the west side of the ridge at the time accident happened. I was sidling out from the obstruction. My first impression was I had trod on the ridge. I am generally very surefooted. That was my impression first, and sometime afterwards I thought I might be mistaken about being on the ridge. I knew there were bad places and was trying to avoid them. When I became conscious I was lying across tlie ridge, the ridge being somewhere near my hip, my feet to the west. I think the ridge would not exceed ten and a half inches wide. It was a little cold that morning, and somewhat frosty. I am a pretty rapid walker. Generally pretty careful how I step.

William B. Bead, a son of appellee, testifies: Was with father at the time of the accident; I was walking along side of him. Saw him when he started west. He was trying to go to the west of the ridge and he stepped right on the ridge. Just then I saw him fall and turned round to see him. He fell across the ridge. I noticed the condition of the sidewalk when he fell. The boards were about ten inches wide and six feet long. They were bulged up about three inches and a half above the level of the w'alk. The stars were shining, but it wasn’t daylight. Was looking where I was stepping. Could see the ridge. Anybody could see the ridge if he were Watching for it. I think father did see it, and he stepped on it. I don’t know that he was looking right at it at the time. I didn’t see it; I knew it was there though. The morning was a little frosty; no sleet. Father knew of the ridge. I heard him say it was a bad place and ought to be fixed. Heard him say since the accident that he knew of it and was trying to get away from it. I think the bc-ards were a little loose at one end. If appellee gives the correct version of the accident he passed to the west of the ridge in the walk before he came to it, and was still on the west side, where the walk was from six to eight feet wide and smooth and safe when lie fell.

The declaration avers that he tripped and stumbled upon and against the said broken and unfastened planks, they being out of place, and was thereby thrown and fell, &c. He says such was not the cause of his injury, but that his fall was on the west side of the ridge where there were no broken or unfastened planks, and where all the evidence shows the walk to have been in good condition and of sufficient width for safe passage.

The allegation and proof must agree. City of Bloomington v. Goodrich, opinion at Jan’y term, 1878.

But if the evidence of appellee’s son tended to support the ■declaration, then it was proper for the court to submit the ■question whether the declaration was sustained by a preponderance of the evidence to the jury. Hpon this issue the appellant .asked the court to give to the jury the following instructions:

“If the jury believe from the evidence that the sidewalk in controversy had a ridge in it at or near the center of the walk, •and that plaintiff slipped on the walk to the west of the ridge ■on a sound, safe part of the walk, and fell on the ridge and thereby hurt himself; that is, that the ridge caused the alleged physical injuries and suffering, but did not cause him to fall, ■but that the fall was caused by the slipperyness of the walk, then the jury should find the defendant not guilty.”
“ Unless the plaintiff has proven by a preponderance of the evidence that at the place of the alleged injury to plaintiff the city, by its officers, negligently suffered said sidewalk to be and remain in bad condition and unsafe repair, and some of its planks to be and remain broken, unfastened and out of place at the place of the alleged injury, the plaintiff cannot recover, and the jury should find the defendant not guilty.”

The court refused to give these instructions. We think they state the law correctly, and should have been given. They direct the attention of the jury to the vital issue, whether the injury was occasioned by the fault of appellant in manner and form as charged in the declaration, and had they-been given it hardly seems probable that the finding of the jury would have been for plaintiff below upon the evidence before them.

We are also of opinion, that this cause should be reversed upon another ground. Cities are not bound to make their sidewalks absolutely safe under all circumstances. It is sufficient if they are not dangerous, and are reasonably safe for persons passing over them.

The only defect in this walk was a ridge caused by two of the boards raising up at the joint where they met, some three and a half inches. This ridge was near the center of a walk sixteen feet wide, and extended with the walk the whole length of these two planks, sixteen feet. The walk was solid, no holes in it, and safe in all other respects than the one mentioned. The only way it would seem possible for one to be injured on this ridge wouldbe by sttimbling against it, or by slipping in stepping upon it, and this could easily be avoided by passing along the walk on either side. Appellee was well aware of this ridge, and had passed it daily for weeks before, and had it in his mind at the very time he received the injury, and yet all he was required to do to avoid danger was to pass down the walk on the outside where the same was perfectly safe, and from six to eight feet wide. All danger could have been avoided by the slightest care, without the least inconvenience or loss of time to the appellee. If one knowingly exposes himself to danger which can be readily avoided, and sustains injury, he must attribute it to his own negligence. Appellee says he is a pretty rapid walker, and at the time of the accident was walking his ordinary gait, noticed nothing, although he was trying to avoid this very place. He does not say it was too dark to see, and the son says it was starlight, and that he saw the ridge, and that any one could see it.

Upon the whole case, we think the appellee could have avoided the injury he sustained by the exercise of that reasonable care which the law requires, and for this reason as well as the refusal of the court to give proper instructions, the judgment is reversed and the cause remanded.

Reversed and remanded.


source: Caselaw Access Project

author: Higbee, P. J.

license: Public Domain

text:
    James Rayburn et al. v. Reuben L. Davis et al.
    Counties—Care oe paupers—Unauthorized aid.—The Ladies’ Aid Society of Bloomington contracted a debt for coal given by them to the poor of the city. The debt not being paid, a claim for it was presented against the county, and ordered to be paid by the board of supervisors. Held, that counties are restricted by statute to the manner in which the poor shall be cared for; and though the services of the aid society were meritorious and beneficial, they were voluntary, and constituted no charge againdt the comity, and could not be paid without statutory authority
    Appeal from the Circuit Court of McLean county; the Hon. Owen T. Beevos, Judge, presiding.
    Messrs. Tipton & Pollock, for appellants;
    argued that, except in extreme cases, a corporation cannot be made liable to an individual for relief given to a pauper, and cited Seagraves v. City of Alton, 13 Ill. 373.
    A county is not liable for voluntary services: Board of Com’rs v. Boyle, 9 Ind. 296; People v. Supervisors of Albany, 28 How, 22; Adams v. Supervisors of Columbia, 8 Johns, 323.
    The board of supervisors had no power to audit the claim, and their action is void: Board of Supervisors v. Ellis, 59 N. Y. 620.
    Ho claim can be allowed against a county unless it is legally chargeable thereto: Linden v. Case, 46 Cal. 171.
    Counties have no corporate power except such as is conferred by law: Perry v. Kinnear, 42 Ill. 160; Beauchamp v. Kankakee County, 45 Ill. 274.
    As to the mode provided for súpport of paupers: Bev. Stat. 1874, 757, §§ 25, 26.
    The overseer of the poor alone has power to contract for the support of paupers: Board of Supervisors v. Plant, 42 Ill. 324; Macon County v. Newell, 81 Ill. 387.
    Messrs. Williams, Bubr & Capen and Messrs. Stevenson & Ewnre, for appellees;
    contended that the appropriation complained of was within the power of the board of supervisors, and cited Eev. Stat. 1874, 758; Macon County v. Newell, 81 Ill. 387.
    That the action of the board was a ratification of the contract, and binding upon the county: People v. Swift, 31 Cal. 26; Mills v. Gleason, 11 Wis. 470; Hasbrouck v. Milwaukee, 13 Wis. 37; Gelpcke v. Dubuque, 1 Wall. 221.
   Higbee, P. J.

In the winter of 1876-7, the Bloomington Ladies’ Aid Society, an organization for the purpose of rendering aid to the poor of the city of Bloomington, was engaged in collecting contributions of money, clothing and provisions, for the use of the poor, and it purchased from the McLean County Coal Co., coal to the amount of $201, which it also distributed among the poor of said city. Subsequently the Aid Society, not having paid for the coal, presented to the Board of Supervisors of McLean county, a bill for the said sum of $201, and the board ordered the county clerk to draw an order on the treasurer of said county for that amount in favor of the coal company; and thereupon appellants, residents and tax payers, in said county, filed a bill in the Circuit Court of said county for an injunction to restrain defendant, Davis, as county clerk, from issuing, and defendant Stroud, treasurer, from paying said order. On the hearing in the court below the bill was dismissed, and appellants bring the case here and assign error on the order dismissing said bill.

Counties are created for governmental purposes, and possess only such powers as are conferred on them by law. They are authorized to levy and collect taxes for county purposes and to pay the same out for the objects and purposes, and in the manner prescribed by law.

The 27th section of chapter 107, E. S. 1874, p. 758, authorizes counties “ to make all proper and necessary appropriation out of the county treasury for * * * the support of the poor, and to cause an amount sufficient for said purpose to be levied upon the taxable property of the county, and collected as other taxes.” Sec. 18 provides in counties under township organization, the supervisors of the respective towns therein shall he ex-officio overseers of the poor of their towns.

Sec. 20. “ The overseers of the poor shall have the care and oversight of all such persons in their town or precinct as are unable to earn a livelihood in consequence of any bodily infirmity, idiocy, lunacy or other unavoidable cause, and as are not supported by their relatives or at the county poor house, and shall see that they are suitably relieved, supported and employed, subject to such restrictions and regulations as may be prescribed by the county board.”

Sec. 23. “ Where any poor or indigent person does not require to be supported wholly by the county, the overseer of the poor may, subject to such limitations as may be prescribed by the county board, render him temporary relief, without his being committed to the care of any such person or sent to the county poor house.”

Other sections authorize the county board to establish a county poor house, but the entire oversight of the poor, not committed to the poor house, is committed to the overseers of the poor; they alone are authorized to provide for them, and to bind the county; they are required to report all their actings and doings to the county board. The county board has no power to make appropriations for the support of the poor, or for any other purpose, except in the manner and for the purposes authorized by law. Beauchamp v. Kankakee Co. 45 Ill. 274; Perry et al. v. Kinnear et al. 42 Ill. 160.

Should the overseer of the poor contract for the support of a pauper, the county would be liable, and he alone has authority to perform the duties of his office. The county is not liable to an individual for relief granted to a pauper, until opportunity has been afforded the proper authorities to make provision therefor, except in extreme cases. Seagraves v. City of Alton, 13 Ill. 366.

In this case the coal was sold to the Aid Society, and by it distributed to the .poor. The money was not due from the county, nor had the coal been bought on the credit of the county, or by any agent of the county. It was the debt of a third party, for which the county was in no way liable, and we know of no law which authorizes the board of supervisors to make donations of public money for any purpose.

The power of taxation should be strictly guarded, and can never be exercised without express authority of law. Every dollar appropriated out of the public funds for unauthorized purposes requires an additional levy for county purposes. And it is the right of any tax payer interested to apply to the courts to restrain such payments.

The services rendered by the Ladies’ Aid Society, however meritorious and beneficial to the county, were voluntary, and constituted no charge against the county, and under such circumstances no allowance can be made for them out of the county fund without statutory permission or authority therefor. Board of Com’rs v. Boyle, 9 Ind. 297; People v. Supervisors, 22 How., N. Y. 22; Adams v. Supervisors, 8 Johnson, 323; Board of Supervisors v. Ellis, 59N. Y. 620; Linden v. Case, 46 Cal. 171.

The claim in this case, grew out of the charitable acts of a benevolent society, and appeals strongly to our sympathies, but policy and humanity are dangerous guides to follow, in construing the law. It is our duty to expound and enforce the law, not to make it; that power belongs to the legislative department, and not to the courts. For these reasons the decree dismissing the bill is reversed and the cause remanded.

Beversed and remanded.


text:
    Daniel J. Bishop v. David Bell.
    1. Pjrobable cause—Malice.—In a suit for a malicious prosecution, it must appear, not only that there was want of probable cause, but that the prosecutor was actuated by malice in causing the arrest. Both must concur.
    2. Malice not implied.—Malice is a question of fact, to be found by the jury, and not a legal presumption arising- from the want of probable cause alone. The want of probable cause is a fact to be considered in determining the question of malice, but malice ought not to be inferred from it unless the charge is willfully false.
    3. What is pkobable cause.—Probable cause does not depend on the actual state of the case in point of fact, but upon the honest and reasonable belief of the party making the charge of the guilt of the accused, founded upon circumstances tending to show that he has committed a criminal offense.
    Ebbob to the Circuit Court of McLean county; the Hon. T. E. Tipton, Judge, presiding.
    Messrs. Rowell & Hamilton, for plaintiff in error;
    that want of probable cause and malice must both exist, cited Leidig v. Rawson, 1 Scam. 272; Jacks v. Stimpson, 13 Ill. 702; Mitchinson v. Cross, 58 Ill. 366.
    As to what is probable cause, or a want of it: Wade v. Walden, 23 Ill. 425; Bourne v. Stout, 62 Ill. 261; Ross v. Inness, 35 Ill. 488; Chapman v. Cawrey, 50 Ill. 512; Barrett v. Spaids, 70 Ill. 408; Anderson v. Friend, 71 Ill. 475; Harpham v. Whitney, 77 Ill. 32; Ames v. Snider, 69 Ill. 376; Wicker v. Hotchkiss, 62 Ill. 107.
    Messrs. Fifeb & Phillips and Kabe & Kaeb, for defendant in error;
    that a verdict will not he disturbed unless manifestly against the evidence, cited Lowry v. Orr, 1 Gilm. 70; Morgan v. Ryerson, 20 Ill. 343; Martin v. Ehrenfels, 24 Ill. 187; Pullian v. Ogle, 27 Ill. 189; Wallace v. Wren, 32 Ill. 146; Dietrich v. Rumsey, 45 Ill. 209; Underhill v. Fake, 46 Ill. 50; Bunker v. Green, 48 Ill. 243; Chicago v. Logerson, 60 Ill. 201; Robinson v. Parish, 62 Ill. 130; Chapman v. Stewart, 63 Ill. 332.
    Malice maybe inferred from want of probable cause: Leidig v. Rawson, 1 Scam. 272; Jacks v. Stimpson, 13 Ill. 702; Ross v. Inness, 35 Ill. 487; Mitchirison v. Cross. 58 Ill. 366; Thompson v. Force; 65 Ill. 370; Montross v. Bradsby, 68 Ill. 185.
    Although instructions may be erroneous, a new trial will not he granted if it is apparent from the record that a re-trial will not change the result: McConnell v. Kibbe, 33 Ill. 176; Curtis v. Sage, 35 Ill. 22; Coursen v. Ely, 37 Ill. 338; Boot v. Curtis, 38 Ill. 192; Boynton v. Holmes, 38 Ill. 59; Potter v. Potter. 41 Ill. 80; Watson v. Woolverton, 41 Ill. 241; Clark v. Pageter, 45 Ill. 185; Rankin v. Taylor, 49 Ill. 451; Stobie v. Dills, 62 Ill. 432; Charter v. Graham, 56 Ill. 19; Letteck v. Honnold, 63 Ill. 335.
    In order to justify under the advice of counsel, the party must lay all the facts before him: Ross v. Inness, 35 Ill. 487; Collins v. Hayte, 50 Ill. 337.
   Higbee, P. J.

This was an action on the case brought by defendant in error against plaintiff in error for malicious prosecution in causing his arrest before a justice of the peace for establishing a tent or booth for vending refreshments during a camp or field meeting being held for religious purposes, within one mile of the place of holding said meeting, without the permission of the authorities having charge of said meeting.

The case was tried before a jury in the court below, and a verdict and j udgment rendered against plaintiff in error. Plaintiff brings the case here and assigns numerous errors, among which are, the overruling a motion for a new trial, and the giving improper instructions on behalf of defendant.

The 59th section of the 38th chapter of the Bevised Statutes of 1874 provides, among other things, that whoever, during the time of holding any camp or field meeting for religious purposes, and within one mile of the place of holding such meeting, without the permission of the authorities having-charge of such meeting, establishes any tent, booth, or other place for vending provisions or refreshments, etc., shall be fined not exceeding $100.

The evidence in the record shows that a camp meeting was being held in McLean county for religious purposes, and that while it was in progress the defendant in error rented a piece of ground of one Bankin, just opposite to the entrance to the camp-ground, and about a quarter of a mile from the ministers’ stand, and put up a tent on it. In the tent defendant had put up a cooking stove, and had a table with dishes on it; in the back part of the tent were tubs and buckets, with provisions in them, and in front of the tent a board was put up for a counter, upon which were cigars, peanuts'and lemonade. This tent was put up on Friday, and on that day and the next defendant in error was warned of the consequences of his conduct, and the law read to him forbidding his selling. Plaintiff in error stated the facts to an attorney-at-law, who advised an arrest. Under these circumstances plaintiff in error swore out a warrant against defendant on Saturday, upon which he- was arrested, and gave bail for his appearance before a justice on the following Monday, when he returned to his tent, and on Sunday morning procured an additional supply of dishes, and was apparently again preparing for business, when plaintiff caused another warrant to issue, upon which he was also arrested and held until the following day, when, after a change of venue, he was acquitted upon both charges. The evidence also shows that after defendant was discharged on these two charges he was again arrested on a warrant issued by another justice, but we are unable to determine.from the record what connection, if any, plaintiff had with this last arrest.

In the 1st, 2d, 3d, 4th and 5th instructions given by the court for defendant in error, the court substantially instructed the jury that if plaintiff in error, caused the arrest of defendant without probable cause, then plaintiff below was entitled to recover. Each of these instructions wholly ignore the question of malice.

These instructions do not correctly state the law. This was a suit for malicious prosecution, and before a recovery can be had it must appear, not only that there was a want of probable cause for the arrest, but that the plaintiff was actuated by malice in causing the arrest to be made, both must concur; malice without probable cause is not sufficient to justify a •recovery, nor is want of probable cause without malice. The 10th and 11th instructions informed the jury that if the plaintiff in error had no reasonable or probable cause for the arrest, then the law would imply malice. This is not the law. Malice is a question of fact to be found by the jury, and not a legal presumption arising from the want of probable cause alone. The want of probable cause is a fact to be considered in determining the question of malice; but malice ought not to be inferred from it unless the charge is willfully false. Harpham et al. v. Whitney, 77 Ill. 32. The ninth instruction is as follows:

9. “ The court instructs the jury for the plaintiff, that if they believe from the evidence that the advice given by the lawyer to the defendant was given contrary to the law and in bad faith; and if the jury further believe from theevidence that the defendant knew at the time the same was given that it was given in bad faith, then in such case the defendants can not justify any action they may have taken upon such advice, and the same in such case cannot be set up as an excuse for doing any unlawful act upon their part.”

There is no evidence in this record tending to show that the advice given by the lawyer was contrary to law, or that it was given in bad faith, and the instruction should not have been given.

Probable cause does not depend on the actual state of the case in point of fact, but upon the honest and reasonable belief of the party making the charge, and an honest belief of the guilt of the accused, founded on circumstances tending to show that he has committed a .criminal offense, is sufficient probable cause.

Tested by these rules it is difficult to see upon what grounds this verdict can be sustained.

Beversed and remanded.


author: Davis, J.

text:
    Julia H. Billings v. Lyman Chapin.
    Forcible entry and detainer—Process to another county.—The action of forcible entry and detainer is local and confined to the county in which the land is situated, but process may issue to, and be served in, the county where the defendant resides, though different from that where the land is located.
    Appeal from the Circuit Court of Scott county; the Hon. A. G-. Bubb, Judge, presiding.

      Messrs. Dummee, Bbowe & Bussell, for appellant;
    that process may run to a foreign county, cited Bev. Stat. 1874, 332.
    This is a local action: Bouv. Law Die. title “ Local Actions,” Mayor v. Ewart, 2 W. Black. 107; Donelson v. Mathews, 4 T. Rep. 504; Eachus v. Trustees, 17 Ill. 535.
    This is a remedial statute and should be construed liberally: R. R. I. & St. L. R. R. Co. v. Heflin, 65 Ill. 366; C. B. & Q. R. R. Co. v. Dunn, 52 Ill. 260; Jackson v. Warren, 32 Ill. 331.
    Mr. W. H. Babees, for appellee;
    that the provisions of the forcible detainer law should be strictly construed, cited Schaumtoeffel v. Belm, 77 Ill. 567.
    That process cannot run to a foreign county in this action: Constitution, Art. YI. §12; Bev. Stat. 1874, 332.
    Where the law prescribes a mode of procedure, that mode must be strictly followed: Dickey v. Reed, 78 Ill. 261.
   Davis, J.

This is an action of forcible entry and detainer, commenced by appellant against ajipellee in the Circuit Court of Scott county, to recover the possession of certain lands situated in said county. To the declaration or complaint filed in the case, appellee filed two pleas. The first setting up that before and at the time of the commencement of the suit, the defendant was, and from thence had been and still was residing in the county of Morgan, and not in said county of Scott; and that he was not found or served with process in said action in said county of Scótt, hut was found and served with process in the said action in the said county of Morgan.

The second plea, charging that the summons issued in said case was not directed by the clerk of the court to the sheriff 'of his county, to wit: Scott county, to serve, and that defendant was not found or served with process in said case by the sheriff of said county of Scott, but that summons was directed by the clerk to the sheriff of the county of Morgan to serve, and that said summons was served upon defendant by the sheriff of said Morgan county, in said county of Morgan; and that said defendant on, etc. at, etc. resided in said county of Morgan.

To these pleas, appellant filed her general demurrer. The demurrer was overruled by the court, and the appellant standing by her demurrer, a judgment was rendered against her in favor of appellee, for costs of suit. To reverse this judgment appellant appeals to this court.

The pleadings present the single question for the determination of this court: whether an action of forcible entry and detainer can be commenced in the county where the land is situated, and the summons sent to the sheriff of the county where the defendant resides, and be legally served upon him there.

The statute of forcible entry and detainer gives to the party entitled to the possession of the land the right to sue for and recover the same in the county where the premises are situated. Revised Statute of 1874, page 536. By this statute the action is made local and confined to the county in which the land is located. By section 2 of the Practice Act, Revised Statutes of 1874, page 775, suits in local actions may be brought out of the county where the defendant resides or may be found, and in such actions process should be issued to the sheriff of the county where the defendant resides. Revised Statutes of 1874, Sec. 43 to 46 inclusive, page 332. Under this act the appellant had the undoubted right to sue in Scott county, and require the process to be sent to the county of appellee and be served upon him there, unless some provision of the forcible entry and detainer act defeats that right, or in some way modifies or controls it. It is claimed by appellee that the language of the latter act, giving power to the clerk to issue summons in such cases to the sheriff of Ms county, virtually prohibits him from issuing a summons to the sheriff of any other county, and thus limits the jurisdiction of the Circuit Court in actions of forcible entry and detainer to cases in which the defendant resides in the county in which the suit is brought. By this construction the benefits intended to be conferred by the statute would be limited to those claiming the possession of land against defendants who were residents of the county in which the land was situated.

We cannot adopt so narrow a construction. The intention of the legislature in enacting the forcible entry and detainer law evidently was to give to parties entitled to the possession of land, a more speedy and less expensive remedy against persons who might forcibly enter or unlawfully detain the possession of land to which they had no claim, than the tedious action of ejectment; and we can see no reason which could induce the legislature to restrict the operation of the law to defendants who might reside in the county in which suit was brought.

Jurisdiction is given in general and unlimited terms to the Circuit Court of the county in which the land is situated in all cases of forcible entry and detainer, and on complaint being filed with the clerk of such court, he is required to issue a summons to the sheriff, and we think in such, cases, as in all others in which the law authorizes the summons to be directed to a foreign county, the plaintiff may direct the clerk to issue it to the sheriff of the county in which the defendant resides.

The direction to the clerk in section 5 of the statute, to issue a summons directed to the sheriff of Ms county to execute, is intended to apply only in cases where the defendant resides, in the county where the suit is brought, and the language employed being used in connection with the direction to the justice of the peace, in case suit is brought before him; to issue a summons directed to any constable of Ms county to execute, is intended to limit Ms jurisdiction to the county where suit is brought, and not as a prohibition to the clerk, or as a limitation of the jurisdiction of the Circuit Court to cases in which the defendant is a resident of the county where suit is brought.

We think the court below erred in overruling appellant’s demurrer to the pleas, and for that reason the judgment must be reversed and the case remanded.

Eeversed and remanded..


author: Per Curiam.

text:
    M. H. Crane et al. v. The City of Urbana.
    Contract—Municipal authority.—The charter of the city giving to the board of education power to make contracts of the character of the one in suit, and giving such hoard exclusive control over funds out of which payment must be made, the action should have been brought against the board of education and not against the city. A general judgment against the city could not properly he rendered for a demand payable out of a particular fund over which its municipal officers had no control.
    Error to the Circuit Court of Champaign county; the Hon. C. B. Smith, Judge, presiding.
    Mr. Thomas J. Smith and Mr. J. O. Cunningham, for plaintiffs in error;
    contending that municipal corporations, like individuals, are liable upon contracts, and that they have all the powers of natural persons as respects their contracts, cited City of Galena v. Corwith, 18 Ill. 423; Seagraves v. Alton, 13 Ill. 373; Maher v. Chicago, 38 Ill. 266; Clayburgh v. Chicago, 25 Ill. 535.
    Corporations in executed contracts cannot deny that they had authority to make the contract: Bradley v. Ballard, 55 Ill. 113; Chicago Building Soc. v. Crowell, 65 Ill. 453.
    It'is not true that a corporation can act only under its corporate seal, by its president and secretary: Board of Education v. Greenebaum et al. 39 Ill. 609; Ill. Cent. R. R. Co. v. Johnson, 10 Ill. 35; Racine & Miss. R. R. Co. v. Farmers L. & T. Co. 49 Ill. 331; Ryan v. Dunlap, 17 Ill. 40.
    If a corporation ratifies an unauthorized act, it is liable: 1 Dillon on Municipal Corporations, 178.
    Messrs. Somers & Wright and Mr. Andrew T. Lewis, for defendant in error;
    arguing that a municipal corporation can only act within the scope of its powers, cited Clark v. School Directors, 78 Ill. 474.
    The board of education sustains the same relations to the public schools as that of the board of directors: Thomas v. Board of Education, 71 Ill. 283.
    The term board of education imports a corporation: U. S. Express Co. v. Bedbury, 34 Ill. 459.
   Per Curiam.

The contract upon which a recovery is sought in this case was made by plaintiffs with the “ Board of Education of the City of Urbana,” and after a careful examination of the city charter we are of opinion that no recovery can be had against the city on it.

The remedy is against the Board of Education and not the city. This board has the power to raise the funds to discharge all proper debts created by it; and should judgments be rendered against it, the courts are clothed with ample power to enforce its payment. A general judgment against the city could not be properly rendered for a demand payable out of a particular fund, over which its municipal officers have no control. The 10th article of the charter gives the Board of Education the power to make contracts of this character, and gives it exclusive control of the funds out of which payment must be made. Ho good reason is perceived why a suit may not be brought on the written contract; or if that is fully executed on the part of plaintiff, and nothing remains to be done but the payment of the contract price, the common.counts are all sufficient.

Upon the whole record the judgment of the court below is right, and must therefore be affirmed.

Judgment affirmed.


author: Lacey, J.

text:
    Elisha B. Steere. v. Hezekiah Benson.
    Note held as collateral—Suit on—Measure of damages.—In a suit upon a note held as collateral security, the amount of indebtedness for which the note is held as security is proper to be shown in defense, and this amount should be the limit of recovery.

      Appeal from the Circuit Court of McLean county; the Hon. B. M. Benjamin, Judge, presiding.
    Mr. B. D. Lucas, for appellant;
    that the affidavits showing that appellant was taken by surprise, by the evidence offered, were sufficient in support of a motion for continuance, cited Goldstein v. Lowther, 81 Ill. 399.
    Ho more can be recovered than the amount of the indebtedness for which the note was held as collateral: President, etc. v. Chapin, 8 Met. 40; Jones v. Heffert, 3 Eng. C. L. 419; Atlas Bank v. Doyle, 9 R. I. 76.
    Mr. H. B. Benson and Mr. H. L. Karr, for appellee;
    that a new trial will not be granted where the evidence is conflicting, cited Lowry v. Orr, 1 Gilm. 70; Morgan v. Ryerson, 20 Ill. 343; Marton v. Ehrenfels, 24 Ill. 187; Wallace v. Wren, 32 Ill. 146; Dietrich v. Rumsey, 45 Ill. 209; Underhill v. Fake, 46 Ill. 50; Bunker v. Green, 48 Ill. 243; Chicago v. Logerson, 60 Ill. 201; Robinson v. Parish, 62 Ill. 130; Chapman v. Stewart, 63 Ill. 332.
    A person taking a note as collateral security before due, is a lyonafide purchaser, and the maker can have no defense to it: Wiffen v. Roberts, 1 Esp. 261; Jones v. Heffert, 3 Eng. L. & Eq. 302; President, etc. v. Chapin, 8 Met. 40; Atlas Bank v. Doyle, 9 R. I. 76; Griggs v. Howe, 2 Abbott, 291; Griswold v. Davis, 31 Vt. 390; Munn v. McDonald, 10 Watts, 270; Manning v. McClure, 36 Ill. 490; Rose v. Teeple, 16 Ind. 37; Wright v. Allen, 16 Ind. 284; Powers v. Talbot, 11 Ind. 1; Horne v. Cole, 51 N. H. 287; Mills v. Graves, 44 Ill. 50; Vanderpool v. Brake, 28 Ind. 130.
    If the evidence offered had been admitted, it would not have changed the result, and it was not error to exclude it: Rowley v. Hughes, 40 Ill. 316; McKichan v. McBean, 4 Ill. 228.
    Hewly discovered evidence is no ground for new trial if it be cumulative or immaterial: Smith v. Schultz, 1 Scam. 490; Morrison v. Stewart, 24 Ill. 25; T. W. & W. R. R. Co. v. Seitz, 53 Ill. 452; Adams v. The People, 47 Ill. 376; Fuller v. Little, 61 Ill. 21; Wood v. Echtermach, 65 Ill. 149.
   Lacey, J.

This was a suit in favor of appellee against appellant on a due bill given by appellant to J. L. Spaulding, for $150, and dated Sept. 16th, 1812, and endorsed by J. L. Sp'anl■ding to appellee as collateral security to secure certain money loaned by appellee to Spaulding.

The appellee claimed to hold the note as an innocent pur-chaser against appellant, who claimed and insisted on the trial 'that he had a full defense to the note against the payee. On 'the trial of the case below the appellant by his counsel asked ¡appellee, who was a witness on the trial, these questions: How much did you loan Mr. Spaulding? How much did Mr. Spaul■ding owe you for which you hold the note as collateral? The -court refused to allow the questions to be answered, and appellant excepted.

The court also instructed the jury for appellee that they had •nothing to do with the question of the amount paid by Benson •to Spaulding; if they find for the plaintiff they should assess his damages at the amount of the note with interest thereon at the rate of six per cent, per annum.

In refusing to allow the above questions to be answered and 'in giving the above instructions, the court erred. If the defendant had a defense to the note as against Spaulding he had a good defense to all of said note, even in the hands of appellee, except the sum for which Spaulding was indebted to appellee, and for which the note was pledged as collateral security. Such defenses are allowed to prevent circuity of action.

By allowing such defenses complete justice is done to all parties. Mayo v. Moore, 28 Ill. 428; President, etc. v. Chapin, 8 Met. 40; Jones v. Heffert, 2 Starkie, 3 Eng. Com. Law, 356; Atlas Bank v. Doyle, 9 R. I. 76.

As there will he a new trial in this case, it is not necessary to notice the other objections raised by counsel for appellant.

For these reasons the judgment of the court below will be reversed and the cause remanded.

Reversed and remanded.


text:
    The People of the State of Illinois v. Edward Race, Impl’d, etc.
    1. Recognizance before a justice of the peace—Number of sureties.—In a recognizance before a justice the statute does not absolutely require there should be more than one surety. All that is contemplated is that the surety offered should be ample, and such as is satisfactory to the justice. The fact that only one surety was taken cannot be made an objection to the recognizance by the surety himself, such bonds being made voluntary by the statute.
    2. Default—Declaration of forfeiture.—The statute relating to recognizances before justices, does not require that the justice, on default, should declare a forfeiture, but only to enter “default” and “ certify the recognizance with a record of the default to the court having cognizance of the offense.”
    3. Practice in circuit court.—Where there has been a default taken by the justice on recognizance before him, and it has been certified to the Circuit Court, it is not necessary that such court should in terms declare a forfeiture, before scire facias can be issued. The entering of default is the duty of the justice, not the Circuit Court. This is required only where the party has entered into a recognizance to appear before the Circuit Court.
    Error to the Circuit Court of Greene county; the Hon. A. G. Burr, Judge, presiding.
    Mr. James ft. Ward, States attorney, for plaintiff in error;
    upon the question of number of sureties, cited Rev. Stat. 1011, §1; Id. 396, §302; Combs v. The People, 39 Ill. 183; Huggins et al. v. The People, 39 Ill. 242; Myers v. The People, 67 Ill. 503; 50 Maine R. 53; 48 N. H. R. 551; Wood v. The People, 16 Ill. 172.
    Upon the right of the justice to declare a forfeiture, Rev. Stat. 402, § 357; Id. 397, § 310; People v. Green et al. 58 Ill. 236; Ogden et al. v. The People, 62 Ill. 63; Adams v. State, 48 Ind. 212; State v. Inman, 7 Blackf. 225; Ross v. State, 6 Blackf. 315.
    Upon the construction to be given to the two sections of statute above cited, Frink et al. v. King, 3 Scam. 144; Stribbling et al. v. Prettyman, 57 Ill. 371; Biggs et al. v. Clapp et al. 74 Ill. 335; Patterson v. Winn. 11 Wheat. 385; Dubois v. McLean, 4 McLean, 489; United States v. Collins, 3 Blatch. 325; Potter’s Dwarris on Statutes, 189; People v. Witt, 19 Ill. 171.
    Upon the jurisdiction of the justice to declare a forfeiture, Peacock v. The People, 83 Ill. 331; The People v. Watkins et al. 19 Ill. 120; Peak v. The People, 71 Ill. 278; Ginn et al. v. Rogers, 4 Gilm. 131; Randolph Co. v. Ralls, 18 Ill. 29; Crisman et al. v. The People, 3. Gilm. 351.
    Upon the right of the Circuit Court to issue a scire facias upon the record sent up: The People v. Green et al. 58 Ill. 236; Burke v. Monroe Co. 77 Ill. 610; Castner v. Walrod, 83 Ill. 171; Cable v. The People, 46 Ill. 467; People v. Witt et al. 19 Ill. 171; Pate v. The People, 15 Ill. 223; Lane et al. v. The People, 76 Ill. 300; Peacock v. The People, 83 Ill. 331; Challenor v. Niles, 78 Ill. 78; Chestnut v. Chestnut, 77 Ill. 346; People v. Phelps, 17 Ill. 199; Weese v. The People, 19 Ill. 643; Stevens v. Hay, 61 Ill. 399; Rietzell v. The People, 72 Ill. 416; 4 Black. Com. 253.
    • Mr. J. S. Care, for defendant in error,
    Thompson, upon the question that it did not sufficiently appear by the scire facias, that the party taking the recognizance had authority, cited Noble et al. v. The People, 4 Gilm. 433.
    Upon the question of number of sureties, Bev. Stat. 396, §300; 402, § 356; 5 Gilm. 90.
    That the Circuit Court should have declared judgment of forfeiture: Bacon et al. v. The People, 14 Ill. 312; Conner et al. v. The People, 20 Ill. 381.
   Lacey, J.

This was an action by scire facias in the Greene county Circuit Court, upon the recognizance of defendant in error, Bace, on which defendant in error, David A. Thompson, was surety, claimed to be forfeited, brought to the February term, 1878, of said Circuit Court.

David A. Thompson, the surety, demurred to the recognizance; the demurrer was sustained by the court and defendants discharged. _ This writ of error is brought to reverse that judgment.

Plaintiff assigns for error the sustaining the demurrer to the scire facias and discharging the defendants in error.

The recognizance charges that defendant in error, Edward Race, was, on the 22d day of December, 1877, charged before J. B. Enslow, an acting justice of the peace of Greene county, with having committed the crime of rape upon the person of Gracie Adams, a little girl 7 years of age.

That the said justice, after having commenced the inquiry into said charge, adjourned the examination of said cause until the hour of 9 o clock a. m. of the 26th day of December, 1877, and ordered defendant in error, Race, to give bail with good and sufficient security, payable to the people of the State of Illinois, in the sum of §2,000 for his appearance at the office of said justice at the time aforesaid, for further examination, and to then and there remain until the final sentence of the court, to answer for the offense charged, and abide the final sentence or order of the court and do and receive what shall be by the court then and there enjoined upon him, and shall not depart the court without leave.

That on the 22nd day of December, the defendant in error, Race, and his surety, defendant in error, Thompson, came before the justice and entered into such recognizance as required by the court. That the recognizance was then and there acknowledged before the said justice, and by him approved and certified, and filed in his office. That afterwards, on the 26 th day of December, at 9 o’clock a. m., at the justice’s office, the justice judicially sitting, the cause coming on to be heard, the said defendant Race being three times solemnly called in open court, came not, but made default, and the said appellee, Thompson, having failed to deliver the body of said Race, or show good and sufficient cause for such failure or cause further adjournment of said examination, therein made default. Wherefore it was ordered and adjudged by the justice that the said people have a judgment of forfeiture of the said recognizance, and that the same be declared forfeited, which said default was then and there duly and lawfully declared and recorded by said justice in his docket. The said justice then continued the cause to the 28th December, ’77, at 9 o’clock A. m. At that time the said Bace not appearing, and said recognizance being still in full force and unsatisfied, It was ordered by the cohrt that scire facias issue against appellees, Bace and Thompson, and that thereupon said justice certified his record and recognizance and default, and orders thereon to the Circuit Court of Greene county, for process and judgment thereon according to the statute. That on the 29th day'of December, 1877, the justice delivered such record to the clerk of the Circuit Court of said county, and that? they then became a matter of record in said court, etc. The scire facias commands said Bace and Thompson to appear on the first day of said court, to be holden on the 25th February, 1878, etc., to show cause, etc., why the forfeiture should not be made absolute, and why execution should not issue, etc.

Defendants in error urge several objections to this recognizance, as it is set out in the scire facias.

First, that it does not appear sufficiently that Enslow was a justice of the peace. He is described. The recognizance describes Mm “an acting justice of the peace,” and “that said Bace and Thompson came before him, one of the justices of the peace of Green county, etc.” The recognizance which the defendant signed describes him as “justice of the peace.” This we deem fully sufficient, so far as this objection is concerned.

It is also objected that the scire facias does not show that Thompson was in default, or was called by the justice or commanded to produce Bace, at the time the default was entered. The statute provides that if the person so recognized does not appear before the justice according to the conditions of the recognizance the justice shall record the default, etc. B. S. 1874, page 402, sec. 357.

The recognizance which the defendant, Thompson, signed, provided that if Bace personally appeared before the justice, as required by the recognizance * * * * then the recognizance should be void—otherwise to remain in full force.

The scire facias shows that Bace did not appear in accordance with the terms of the recognizance, that he was called three times, and the justice found he was absent; he did not answer, “ but came not.” The justice thereupon entered default ill strict conformity with the terms of the recognizance. The recognizance did not provide that Thompson should he called and asked to produce the body of defendant, but on the contrary, he absolutely undertook that Race should be before the justice at the time and place fixed. The recognizance was Race’s, not Thompson’s, Thompson was only security that Race should be forthcoming. The default was entered against Race, not Thompson. Banta et al. v. The People, 53 111. 435. We deem the declaration of the forfeiture by the justice sufficiently formal and regular, and find no error in that.

It is insisted also that the statute requires two or more securities instead of one, and hence the recognizance is void for that reason.

We do not understand the statute to mean that there must absolutely be more than one surety. The “ sureties must be to the satisfaction of the justice ” is the language of the act. R. S. 1874, page 402, sec. 356. One surety may be amply satisfactory to the justice. He is only required to be satisfied; in other words the sureties must be good.

This is one of the cases intended to be covered by the statute which provides that the “ plural may include the singular number,” if indeed a statutory provision were necessary in such a case. Besides, were the statute as claimed, it could not make the least difference, for the reason that these bonds are made voluntary bonds by the statute. R. S. p. 96, sec. 302.

Again, the object of the legislature was to secure ample bail that was good; and certainly it would not lie in the mouth of the surety to object, because there were not enough signers on the bond to make it good. He has undertaken, as far as he is able, to pay it, and should he hound by it. The statute was made, not for his benefit, but for that of the public. State v. Benton, 48 H. H. 551.

It is again objected that there was no judgment of forfeiture. This appears to be a mistake; the scire facias shows that the justice declared a forfeiture of the recognizance, and rendered judgment of forfeiture in as formal a manner as was done in Banta et al. v. The People, 53 111. 435, which was adjudged, sufficient.

It will be observed, also, that Sec. 357, page 402, B. S. 1874, does not require the justice to declare a forfeiture by its terms; it only requires him to enter “ default,” and certify the recognizance with a record of the default to the court having eognizance of the offense, etc.”

By section 310, page 397, if the cognizee “ does not appear in accordance with the terms of the recognizance, the court shall declare such recognizance forfeited, and the clerk shall thereupon issue scirefacias, etc.” B. S. p. 397.

All the decisions that have been cited by the defendant in error, have been rendered in cases arising under the latter statxite when the party was recognized to appear before the Circuit Court; hence, in all those cases the statute required a forfeiture by the Circuit Court to be declared in term. The cases of Baker et al. v. People, 14 Ill. 313; Conner et al. v. People, 20 Ill, 382, were cases of the latter class.

, We think the statute does not, as is contended, require the Circuit Court in cases like this to declare a forfeiture, but the entering of the default, and declaring'a forfeiture of the latter be necessary under this section of the statute, is left with the justice—that it is bis duty, and not that of the Circuit Court. It is provided in the latter part of said section 357: “ That the justice shall certify the recognizance, together with the record of default to the court having cognizance of the offense, and like proceedings may be had thereon, as upon the breach of the conditions of a recognizance for appearance before such court, or an action of debt may be maintained thereon.” Bow in the Circuit Court upon the breach of the condition of the recognizance, what happens? Scire facias at once issues, and the court proceeds to final judgment after service of the scire facias. Again, an action of debt may be brought upon the filing of such justice’s recognizance and transcript, and their becoming a record of the Circuit Court. It requires no declaration of forfeiture by the Circuit Court before an action of debt can be maintained.

These are all the objections to this scire facias that we deem it important to notice.

The proceedings before the justice appear to be regular in every particular, and also in the Circuit Court. We hold the sovrefaoias to be good, and that the court below erred in sustaining the demurrerto.it. For this error the judgment of the court below is reversed and the cause remanded.

Reversed and remanded.


text:
    Smith M. Cantrall v. Angelo V. Fawcett et al.
    1. Pleading—Replication—Burden of proof.—Where a plaintiff, byway of replication to the defendant’s plea, alleges an independent fact, the burden of proof is upon him to show the truth of such fact.
    2. Evidence—“Warranty.—Appellant alleged that he pm-chased of appellees a corn-sheller, which was warranted, and gave his note for the deferred payment; that afterwards that note was surrendered and a new note given in its place. In a suit upon this last note, there was evidence tending to show a warranty and breach, and that the same was not settled at the time of giving the new note. Held, that the court erred in excluding such evidence; that the warranty, if any, might remain even if the note was .paid, unless the same was settled at the time of giving the new note, and this was for the jury to determine.
    3. Evidence—Bill in chancery.—It was improper to admit in evidence a bill in chancery prepared by appellant to restrain the collection of a judgment, on the ground that the justice had no jurisdiction. The replication in this suit shows that the judgment was void, and proof should have been made by production of the justice’s docket.
    Appeal from the Circuit Court of DeWitt county; the Hon. A. G. Burr, Judge, presiding.
    Messrs. Fuller, Graham & Monson, for appellant;
    that under the pleadings, evidence of warranty, breach and damages should have been allowed to go the jury, cited Crabtree v. Rowand, 33 Ill. 421; Yates v. Valentine, 71 Ill. 643.
    The question whether the new note was given for the same consideration as the former one, should have been submitted to the jury: Ankeny v. Pierce, Breese, 262; Dedman v. Williams, 1 Scam. 154; McConnell v. Stettinius, 2 Gilm. 707.

      Proof of the judgment of the justice should have been made by producing his docket: Greenleaf’s Ev. 686; Freeman on Judgments, 421.
    Mr. R. B. Fobbest, for appellees.
   Lacey, J.

This was an action brought by appellees against appellant, and was tried in the Circuit Court of DeWitt county, August term, A. D. 1877. The cause of action was a promissory note. There were two defenses set up to it. The first was that the appellees had, on the 25th of December, 1875, sold to appellant a “ corn-sheller and horse power belonging to it, for $375,” on which $195 was paid, and note given for balance to appellees clue six months after date; that the appellees warranted the sheller to be well made and durable, and would shell corn clean, and clean corn better than any other sheller manufactured; that this note was afterwards taken up and a new note substituted in lieu of the old one. The new note is the one in suit.

The plea further alleged that the warranty had failed to the amount of $300, and this was sought to be offset against the note.

The second plea was a plea of former adjudication on the note sued on. Appellee replied, averring that the docket of the justice of the peace would show that the justice had no jurisdiction and that the judgment was void, as would appear from the docket.

Issue was joined on all the pleas as well as replication. The cause was tried by a jury. On the trial the plaintiff and one Middleeoff and Williams were allowed to testify to facts tending to show the warranty and the breach thereof and the resulting damages; but after such evidence had been given in, on-motion of appellee, all the evidence bearing on the question of damages was excluded by the court from the consideration of the jury. The appellant then offered to prove by other witnesses such damages, but the court ruled that such evidence was inadmissible. Exceptions were taken to such rulings by appellants’ counsel. It'is claimed by counsel for appellee that by liis replication he had put in issue the question whether or not the note sued on had been given in settlement of the transaction between the plaintiffs and defendant pertaining to the sale of the said corn-sheller; he claims that issue was not joined on the second plea of appellant, but on this replication.

It is also claimed that the burthen of proof was on appellant to disprove this replication. This is not tenable, the appellee having plead the replication, the burthen of proof was on him to show the truth of such replication. The party who alleges a fact must prove it. But the evidence given in by the appellant, and which was excluded by the court, tended to show that the warranty and breach, if any, was not settled by appellant and appellee at the time; the new note was given without a word being said by either party upon the question of warranty and breach, and was given for the accommodation of appellant to enable him to raise money.

The contract of warranty, if there was one, might remain even were the note paid off, and suit might afterwards be brought for the breach of it.

True, it might have been settled and adjusted when the new note was given, but not so unless the parties so intended. The fact of giving the new note might be taken into account by the jury, together with all the other evidence in the case, in determining whether in fact there was a settlement of all differences, but it should not be held to be a conclusive fact. It was the province of the jury to weigh and determine from all the evidence whether a full settlement had been made. And it was the duty of the court to admit all the evidence hearing on that question. It was not the province of the court to determine whether a settlement had been proven. It was error in the court to exclude the evidence on the question of damages, for the jury might have found that the warranty and breach had been fully established, and that no settlement had been made between the parties. In that- case the question of damages would have been a vital one.

The court admitted in evidence parol testimony, and also the bill in equity prepared by appellant for the purpose of presenting it to the judge, to obtain an injunction against the collection of the judgment rendered before a justice on the note in question, which bill set up that the judgment was void for want of jurisdiction in the justice. The purpose of this was to prove appellee’s replication to the plea of former recovery. This was not competent for such purpose. The replication shows that the judgment was void on its face. This is the manner in which the issue is tendered. It should be proven, as tendered, by the production of the docket itself or a transcript, and the evidence should have been confined to this.

The judgment is therefore reversed and the cause remanded.

Reversed and remanded.


text:
    Abel T. Arundale v. Townsend Foreman.
    Instbuction—Assuming pacts.—It is error for the court to give an instruction which assumes as proved, one of the disputed facts in the case. In a case where there is a conflict in the evidence, it is of the utmost importance that no fact should be assumed as proven, which is controverted.
    Appeal from the Circuit Court of Fulton county; the Hon. S. P. Cummings, Judge, presiding.
    Mr. John A. Gray, for appellant;
    that the matters of the firm remained unsettled, and if one partner was to pay the debts and collect the accounts of the firm, a further accounting must be had; cited Davenport v. Gear, 2 Scam. 495; Frink v. Ryan, 3 Scam. 322; Chadsey v. Harrison, 11 Ill. 151; Hanks v. Barber, 53 Ill. 292; Burns v. Nottingham, 60 Ill. 531; Wells v. Carpenter, 65 Ill. 447; Purvines v. Champion, 67 Ill. 459.
    Mr. C. G. Whitney and J. W. Bantz, for appellee;
    that suit by one partner cannot be maintained on partnership account until the partnership concerns are adjusted; cited Story on Partnership, 364.

      That the property involved was' sold to appellant by appellee, and the note in suit given therefor, and hence it became a contract distinct from the partnership; Edens v. Williams, 36 Ill. 252; Wells v. Carpenter, 65 Ill. 447; Purvines v. Champion, 67 Ill. 459; Chitty on Contracts, 236.
   Per Curiam.

This was a suit brought by appellee against appellant to recover a sum found to be due him on settlement of partnership accounts, and resulted in a judgment in the court below against appellant, from which he appeals to this court, and assigns for error that the court erred in giving improper instructions on behalf of appellee.

The plaintiff below testified that the parties had been partners in-the livery business, and that they dissolved the partnership, divided the property and figured up their accounts, and that a balance was found in his favor, which appellant then promised to pay. Defendant testified that there was no final settlement, no balance struck, and that he did not promise to pay plaintiff any sum then found due him. Each party attempted to corroborate his evidence by other testimony.

The record presents a sharp contest and a strong conflict in the evidence as to the main facts involved.

The court, at the instance of plaintiff below, gave to the jury, among other instructions, the following:

6. “ The court further instructs the jury that if they believe, from the evidence, there was a sale made by plaintiff to the defendant, that this dissolved the partnership, and he became liable on his several promises, and your verdict should be for the plaintiff.”

This instruction was erroneous and should not have been given. It assumes one of the disputed and most material tacts in the case; that appellee had promised to pay the balance.

It does not follow that if the partnership was dissolved, that appellee would be liable; that would depend upon the further facts (not to be assumed), but to be found by the jury, as to a settlement of their accounts and a promise to pay the balance. There are serious objections to other instructions given on behalf of appellee, but they are mostly of the same character with this, assuming disputed facts, and we have not deemed it necessary to copy them and comment upon them separately. In a case like this, where there is a conflict of the evidence as to the main facts involved, it is of the utmost importance that no fact should be assumed as proven, which is controverted.

The judgment is reversed and the canse remanded.

Reversed and remanded.


text:
    George W. Crayne. v. William D. Wells et. al.

    Attachment—Requirements oe aeeidavit.—An affidavit in support of a writ of attachment, hasecl upon the statutory ground that the debtor has departed from the State, must show that he had left the State “ with the intention of having his effects removed therefrom.” It is not sufficient to allege that he has gone beyond the reach of his creditors, nor does such affidavit amount to an allegation that the debtor was not a resident of this State.
    Error to the Circuit Court of Greene county; the Hon Cyrus Epler, Judge, presiding.
    Mr. J. W. English and Mr. W. W. Drummond, for plaintiff in error;
    that the affidavit was insufficient, cited Rev. Stat. chap. 11, § 1; Clark v. Roberts, Breese, 285; Dyer v. Flint, 21 Ill. 80.
    As to the certificate of publication: Smith v. C. A. & St. L. R. R. Co., 67 Ill. 191.
    Mr. J. L. Patterson and Mr. H. C. Withers, for defendants in error;
    as to proof of publication, cited Barnet v. Wolf, 70 Ill. 76.
    There had been a substantial compliance with the statute: Wallace v. Cox, 71 Ill. 548; Thormeyer v. Sisson, 83 Ill. 188.

      This opinion decides three cases between the same parties.

   Lacey, J.

Each of the above suits were commenced by defendants in error against the plaintiff in error and others in attachment, and publication made, and the plaintiff in error not appearing, default was entered against him at the February term of the Circuit Court of Greene county, A. D. 1874.

The foundation of the action being certain promissory notes, judgment was rendered against the property of the plaintiff in error at that term of court in each of the above causes.

The affidavits upon which each of the above attachment suits were commenced are in terms the same. Defendant in error alleges in each of them, after setting out the indebtedness due from plaintiff in error, to defendant in error, as follows:

“And the said George W. Crayne, one of the jrartners, etc., of the said firm, has departed from this State and beyond the reach of his creditors.”

Among other assignments of error it is objected, “ That the affidavit did not in either case confer jurisdiction over plaintiff in error, George W. Crayne, nor the subject-matter of this suit,” so far as he was concerned.

The Statute provides that any creditor having a claim exceeding twenty dollars, may have attachment in any court of record having competent jurisdiction, against the property of his debtor or that of any one or more of several debtors, in any one of the following cases, etc. Nine different cases are set out. The third case, under which this writ is claimed to he issued, is as follows: “ Where the debtor has departed from this State, with the intention of having his effects removed from this State.”

Before an attachment can issue this ground for the writ must be supported by proper affidavit of the party, his agent or attorney, and filed with the clerk of the court where the attachment issues. Devised Statutes 1874, 152, §§ 1, 2.

This was not done in this case. The affidavit fails entirely to show that the plaintiff in error had left the State with the intention of having his effects removed therefrom. It is not equivalent to allege that he has gone beyond the reach of his creditors; he must have the intention to remove his effects also. Nor does such affidavit amount to an allegation that plaintiff in error was not a resident of this State.

For all that appears he may have gone out of the State to return next week or the next day. Clark v. Roberts, Breese 285; Dyer v. Flint, 21 Ill. 80; White v. Wilson, 5 Gilm. 21.

The judgment in each of the above causes is therefore reversed and the causes remanded, with instructions to the court below to allow the defendant in error to amend his affidavit in each case.

Reversed and remanded.


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    George W. Albin v. Samuel D. Parks.
    Slander—What proof necessary—Variance.—In an action for slander, the plaintiff need not prove all the words laid in the declaration, unless it takes all of them to constitute the cause of action; nor will the proof of additional words defeat his right of recovery, unless they so qualify the meaning as to remove the slander; but he must prove enough of the words laid to amount to the substance of the charge, and this must be done by proof of the identical words laid—equivalent words, or words of the same import will not do.
    Appeal from the Circuit Court of Cumberland county; the Hon. J. 0. Allen, Judge, presiding.
    Messrs.WiLKiN & Wilkin and Messrs. Decius & Everhart, for appellant;
    that to charge;a person with false swearing is actionable, because the statute has made it so, cited Rev. Stafc. 1877, 933, § 2; Strauss v. Meyer et al. 48 Ill. 385.
    Justification must be as broad as the charge: Townsend on Slander and Libel, 331. .
    But it need not go further: Sandford v. Gaddis, 13 Ill. 229.
    Equivalent words, or those of the same meaning, are not sufficient: Sandford v. Gaddis, 15 Ill. 229; Norton v. Gordon, 16 Ill. 38.
    Plaintiff must prove enough of the words as laid to sustain his action: Wilborn v. Odell, 39 Ill. 456; Townsend on Slander and Libel, § 364.
    An incorrect instruction cannot be cured by another which is correct: Denman v. Bloomer, 11 Ill. 177.
    If instructions have a tendency to mislead the jury they should not be given: Webber v. Brown, 38 Ill. 87; Reeder v. Pandy, 41 Ill. 261; Nichols v. Mercer, 44 Ill. 250.
   Per Curiam.

This is an action on the case for slander. The declaration alleges in various forms and in different sets of words, that the defendant charged plaintiff with swearing falsely. The general issue was pleaded, and on the trial several witnesses were called to prove the speaking of the words charged, only one of whom (Treat) testifies to the speaking of the words as charged, and his statement is denied by defendant, who subsequently testified in his own behalf. The other witnesses testify to conversations by defendant, in which he, in substance, charged plaintiff below with swearing falsely, but not by the use of the words alleged in the declaration. The witnesses, in detailing the conversation, use the most, or all of the words charged in the declaration, but not in the same sense and connection, so as to constitute the substance of the charge, in the same language alleged.

At the instance of plaintiff, the court instructed the jury That if they believe from the evidence in this case that the defendant spoke of and concerning the plaintiff the words, or any of them, in the manner and form as charged in the declaration, then the jury should find for the plaintiff, unless the jury were satisfied from the evidence that such words were true.” The question of the speaking the words by defendant was in issue by the pleadings and contested by the evidence, and the instruction upon this point was of the utmost importance to the parties, and should have given the law correctly. This it fails to do, and is well calculated to produce a verdict on insufficient evidence.

The plaintiff need not prove all the words laid in the declaration unless it takes all of them to constitute the cause of action, nor will the proof of additional words defeat his right of recovery unless they so qualify the meaning as to remove the slander. But he must prove enough of the words to amount to the substance of the charge, and this must be done by proof of the identical words laid. Equivalent words, or words of the same import, will not do.

This instruction required the jury to find for the plaintiff, if the defendant spoke of and concerning the plaintiff any of the words in manner and form as alleged, and under it the plaintiff could recover although the words proven did not amount to the substance of the charge, or any material part thereof.

The judgment is reversed and the cause remanded.

Reversed and remanded.


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    James Goodheart v. William H. Bowen.
    1. Execution—Cannot be levied after replevin.—When goods are replevied, from an officer holding an execution, by a person not a party to the execution, the-goods are in the custody of the law, and are not liable to be again seized by the same or any other officer holding other executions, and an officer making such second levy does so in his own wrong and without authority of law.
    2. Writ of retorno.—Appellant as sheriff levied upon property by writ of attachment. The property was replevied by appellee, and appellant receiving an execution from another party, levied it upon and took the property from appellee, who thereupon again took the property by writ of replevin. A second execution coming to the hands of appellant, he again levied upon the property, and held the same until the bankruptcy of the judgment debtor, when he delivered it over to the bankrupt’s assignee. On the trial of the first replevin suit appellee failed to establish his right to the property, and there was judgment against him, but the court refused to order a writ of retorno on motion of appellant. JHeld, that the motion was properly refused. Under the circumstances to allow a writ of retorno would be to give appellant the property itself, and in addition the value of it in money, to be collected from the signers of the replevin bond.
    3. Levy of executions—Practice.—While an officer holding junior executions, cannot levy on the same property once levied upon, he may indorse a levy on the subsequent writs, and the proceeds of sale should be applied in the order of their issuance.

      Appeal from the Circuit Court of McLean county; the Hon. Owes" T. Reeves, Judge, presiding.
    Messrs'. Aldrich & Herrick, for appellant;
    that a writ of retorno habendo should have been ordered, cited Rev. Stat. 811, § 22; Underwood v. White, 45 Ill. 437; Vose v. Hart, 12 Ill. 378.
    Messrs. Williams, Burr & Capee, for appellee;
    against the motion for a writ of retorno, cited Pratt v. Tucker, 67 Ill. 346; Bourk v. Riggs, 38 Ill. 320; Hanford v. Obrecht, 38 Ill. 493.
    That after replevin the property could not be levied upon: Morris on Replevin, 59.
    For making such levy the sheriff is liable as an original party, not as the agent of the plaintiff in execution: Broadwell v. Paradice, 81 Ill. 474.
   Lacey, J.

Appellant, James Goodheart, as sheriff of McLean Co., levied a writ of attachment issued in favor of the First Rational Bank of Bloomington, and against the goods of Peter C. Bowen and the goods in question as the goods of Peter C. Bowen. William H. Bowen, the appellee, replevied the goods. Appellant having received an execution in favor of another party, seized them as the property of Peter C. Bowen, and took them from the custody of appellee. Appellee again replevied the goods from appellant. Appellant, getting a third writ of execution, again levied on the goods as the property of Peter C. Bowen, and took the goods out of the possession of the appellee a second time. The appellee then allowed the goods to remain in the possession of the appellant, who from that time held the goods until a short time afterwards Peter C. Bowen, going into bankruptcy, delivered them over on demand to the assignee in bankruptcy. Afterwards, upon the trial in the court below, the appellee, who claimed title to the goods by virtue of a chattel mortgage executed to him by Peter C. Bowen, was unsuccessful in the first replevin suit, the issues having been found in favor of appellant, upon his plea setting up title in Peter C. Bowen and the attachment proceedings.

Upon motion by appellant in the Court below for a writ of retorno on the verdict of the jury, the court overruled the motion, and gave judgment against appellee for costs.

Appellant brings this case into this court by appeal, and assigns for error the refusal of the court below to grant this motion. The law is well settled, that when goods are replevied from a sheriff holding execution, by a person not a party to the execution, that the goods are in the custody of the law, and are not liable to be again seized by the same sheriff holding junior execution, or by any other officer holding execution, and any such officer who makes such second levy, does so in his own wrong and without authority of law. Rhines v. Phelps et al. 3 Gil. 455; Hogan v. Lucas, 10 Peters, 400. It cannot be contended that the replevin bond is a substitute for the property, and as a consequence the property is released from the levy, for in such a case there might be any number of levies, and if the complainant should make several successive replevies, then in case he were unsuccessful, he would be liable to answer to the same or different sheriffs on his replevin bonds, for the value of the property, as many times as he had replevied.

Could a result so contrary to equity and good conscience be sustained? The maxim of the law is that it injures no man and can never produce injustice. Ibid, 10 Pet. 403, 4. On giving the replevin bond in this, case, the property was placed in the hands of the appellee, and his custody was substituted for that of the sheriff; the property is not withdrawn from the custody of the law. In the hands of the appellee the property was as free from the reach of process as it would have been in the hands of the sheriff whilst held by him under the attachment. The lien of appellant was not released from the property replevied on account of the replevy, but continued until the bond was forfeited. This being the case, and the attachment levy all the time being a lien on the property in question while it was in the hands of appellee, it must necessarily then continue for the benefit of the first levy, and Was a lien at the time appellant took the property under his second and third executions out of the hands of appellee. Appellant would not be able to divest himself of the duty of first satisfying such attachment lien, no more than he would if no replevin had been made. He should hold the property and satisfy the claim of the Eirst Hational Bank under the attachment, or show legal excuse for not doing so. Having recovered the property from appellee, he cannot claim that he has been injured by the replevin suit.

Having anticipated the result of the replevin, suit and taken the property into his possession, which was acquiesced in by appellee, he cannot after the suit had been decided in his favor, claim a second fulfillment of its conditions. Property once levied on is in the custody of the law, and is beyond the reach of any other process while such levy exists; after the satisfaction of the first writ, the law applies the proceeds to those subsequently issued, in the order of their delivery and issuing to the officer: while he cannot levy on the same property, he may indorse a levy on the subsequent writs, and the proceeds of sale should be applied in the order of their issuance. Herman on Executions, 251. After having taken the property under the junior executions out of the hands of appellee, he should have disposed of it, and applied it in accordance with the above rule. It matters not whether the goods were delivered back to him voluntarily, or whether he seized them in his own wrong.

The fact that the goods were taken by the assignee in bankruptcy, could, as we conceive, make no difference; as we cannot see how the replevin suit in any way was instrumental in producing that result.

Under these circumstances, to allow the appellee to have a writ of retorno, would be to give the appellant the property itself, and in addition the value of it in money, to be collected from the signers of the replevin bond. The Circuit Court having equitable jurisdiction of its writs, did right in refusing this.

Judgment affirmed.


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    James McCoy et al. v. John W Schnellbacker.
    Attachment—Division of proceeds.—All judgments in attachment against the same defendant, returnable at the same term, and all judgments recovered at that term, or at the term when the judgment in the first attachment shall be rendered," are entitled to share pro rata in the proceeds of the property attached.
    Error to the Circuit Court of Tazewell county; the'Hon. John Burns, Judge, presiding.
    Messrs. Roberts & Green, for plaintiffs in error;
    that a division of proceeds should have been made, cited Rev. Stat. 1874, 744; Stahl v. Webster, 11 Ill. 511; Warren v. Iscarian Community, 16 Ill. 114; Merchants Sav. Inst. v. Given, 82 Ill. 157.
   Per Curiam.

The 37th Sec. of the Act of 1874, provides, sec. 37: “All judgments in attachment against the same defendant, returnable at the same term, and all judgments in suits by summons, capias or attachment against such defendant recovered at that term or at the term when the judgment in the first attachment upon which judgment shall be recovered is rendered, shall share pro rata according to the amount of the several judgments in the proceeds of the property attached, either in the hands of a garnishee or otherwise.” In this case all the judgments were rendered at the same time, it being the term at which the judgments were rendered and the first attachment issued, and by the plain provisions of this section, all are to share pro rata in the proceeds of the property attached.

Judgment affirmed.


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    The Town of Appanooce v. William C. Kneff.
    1. Appeal by towh—Bohd must be sighed by supebvisob.—On an appeal by a town, in an action where an appeal will lie, the bond should be signed by the supervisor in the name of the town. A hond signed by the commissioners of highways in an appeal from a suit relating to roads, is irregular.
    2. New bohd may be piled.—Where the bond for appeal is defective, it is error for the court to dismiss the appeal on motion, but leave should he given to amend. The proper practice would be to require the appellee to enter a rule against the appellant that- unless he files a sufficient bond by a day named in the rule, the appeal will be dismissed.
    Error to the Circuit Court of Hancock county; the Hon. Joseph Sibley, Judge, presiding.
    Messrs. Manier & Miller and Morrill & Mofeitt, for plaintiff in error;
    that an, appeal would lie on the part of the town, from the judgment in this action, cited Rev. Stat. 1874, 921, § 58; Rev. Stat. 1877, 869, § 17; Town of Partridge v. Snyder, 78 Ill. 519.
    That it being made the duty of commissioners of highways to prosecute for fines, they were the proper parties to sign the appeal bond: Bev. Stat. 1877, 869, §§ 19, 20.
    The court should have permitted the filing of a new or amended bond: Bev. Stat. 1877, 618, § 69; Hubbard v. Freer, 1 Scam. 467; Waldo v. Averett, 1 Scam. 487; Bragg v. Fessenden, 11 Ill. 544; Boorman v. Freeman, 12 Ill. 165; Trustees of Schools v. Starhird, 13 Ill. 49; Weist v. The People, 39 Ill. 507; Wear v. Killeen, 38 Ill. 260.
   Davis, J.

This action was brought before a justice of the peace by plaintiff in error, to recover from the defendant a penalty for injuring and obstructing a public road in said town.

On an appeal taken to the circuit court by plaintiff in error, the defendant moved the court to dismiss the appeal, because the bond filed was signed by the commissioner of highways, when it should have been executed by the supervisor of the town. The court below sustained the motion, and the plaintiff then entered its motion for leave to file a new bond. This motion the court overruled, dismissed the appeal, and rendered a judgment in favor of the defendant against the plaintiff for costs of suit. The ruling of the court on this motion is assigned for error.

The appeal bond was improperly signed by the commissioners of highways. It should have been executed by the supervisor of the town in the name of the town. But the appeal having been properly taken in a case in which an appeal would lie, should not have been dismissed, but leave should have been given to the plaintiff to file a new bond, so that the case should be tried on its merits, as provided by the statute. Town of Partridge v. Snyder, 78 Ill. 519.

In Wear v. Killeen, 38 Ill. 262, the court held that the proper practice in all such cases is, after the bond has been adjudged informal or insufficient, to enter a rule against the appellant that unless he executes and files a sufficient bond by a day to be named in the rule, the appeal will be dismissed.

In this case no such rule was necessary, as the plaintiff had asked leave of the court to file a new bond.

The court having erred in dismissing the appeal, the judgment must be reversed and the case remanded, with instructions to reinstate the appeal on the docket, and permit the plaintiff within a reasonable time, to be fixed by the court, to file a new appeal bond.

Reversed and remanded.


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    M. Mart Stuckey v. D. C. Churchman.
    ]. Justices oe the peace—Jubisdictioh.—Justices of the peace have no jurisdiction, either in actions for trespass vi et armis or in actions on the case.

      2. Relation between teacher and pupil—Ho implied contract.— There is no implied contract between teacher and pupil in our public schools, that the former shall teach the latter. The only contract of the teacher is with the board of directors employing him.
    Appeal from the Circuit Court of Montgomery county; the Hon. H. M. Yandeveer, Judge, presiding.
    Mr. E. Lane, foi* appellant;
    contending that no action can he maintained by the pupil against the teacher except for tort, cited Spear v. Cummings, 23 Pick. 225.
    The remedy is not against the teacher but the school directors: School Trustees v. Van Allen, 10 Chicago Legal News, 232.
    Mr. George M. Stevens, for appellee;
    argued that the parent has the right to select what studies his child shall pursue, and cited Morrow v. Wood, 35 Wis. 59; Ruhson v. Post, 79 Ill. 567; School Trustees v. Van Allen, 10 Chicago Legal News, 232.
    A scholar cannot be expelled from school except for bad conduct: Rulison v. Post, 79 Ill. 567; School Trustees v. Van Allen, 10 Chicago Legal News, 232; Morrow v. Wood, 35 Wis. 59.
   Lacey, J.

This was an action commenced by appellee, a boy some fifteen years of age, against appellant, a school teacher, before a justice of the peace. The trial before the justice resulted in favor of appellant. Upon appeal to the Circuit Court of Montgomery county, a new trial was had, and resulted in a verdict and judgment of one dollar against appellant, who now brings the cause to this court.

The grounds of this action are, that appellee was a pupil in the school taught by appellant. By order of the directors the '“Babitonian system ” of writing was adopted, and the teacher was ordered to compel the appellee, among other scholars, to get a copy book and to take lessons in penmanship, and in case of refusal, not to hear him recite in any other study, of which appellee had five.

The father of appellee forbade him from complying with the order, and appellee refused to-pursue such study. The teacher refused to hear him recite any other lessons, when, after staying in the school some three days, he left of*his own accord; no personal force was applied to eject him from the school house.

It is assigned for error, among other matters, that the justice of the peace had no jurisdiction of the subject-matter of the suit.

We think this objection is well taken. The statute does not give justices of the peace jurisdiction, either in actions for trespass m et a/rmis, or in actions on the case. Hurd’s Statute 1874, p. 639.

But it is contended by the counsel for appellee, that there was an implied contract on the part of the appellant to teach appellee, and upon appellee to attend the school as a scholar, and hence the justice had jurisdiction on the grounds that it was an action of assumpsit. This position is not tenable. The only contract the appellant had, or could have had, under the school laws was with the directors. It was from them he received his employment and pay as a teacher. He had no contract with appellee. The appellee under the laws had the right to attend the public school which was provided for at the public expense for all unless that right for some reason was forfeited.

If appellant was liable at all to appellee for damages, it could only be recovered in an action on the case or trespass to the person of appellee, of which subject matter the justice of the peace, nor the Circuit Court upon appeal, had any jurisdiction.

For this reason the judgment of the court below is reversed and the cause remanded.

Beversed and remanded.