author: Per Curiam.

text:
    Illinois Agricultural Company v. J. Cranston et al., Highway Commissioners.

      Action against Highway Commissioners — Extent of Recovery — Instructions — Practice—Motion to Exclude Plaintiff’s Evidence.

    1. In an action against Highway Commissioners to recover damages resulting from acts done in their official capacity, the plaintiff can not recover against one of the defendants for an act done in his personal capacity, and not directed or assented to by the Board.
    2. Where the evidence was conflicting and the case was properly presented to the jury, this court will not disturb the verdict.
    3. The trial court may properly refuse to give a large number of unobjectionable instructions where the case only requires a few clear and brief ones.
    4. After a motion to exclude the plaintiff’s evidence has been overruled in part, the defendant may be permitted to introduce evidence in defense.
    5. This court will not interfere with the judgment of the court below, unless it clearly appears that substantial error has been committed, to the injury of the appellant.
    [Opinion filed August 26, 1886.]
    Appeal from the County Court of Champaign County ; the Hon. J. W. Langley, Judge, presiding.
    Messrs. E. L. Sweet, F. M. Weight and Geee & Beabdsley, for appellant.
    Mr. J. L. Ray, for appellee.
   Per Curiam.

The cause of action alleged here was that the defendants in their official capacity as Highway Commissioners, so wrongfully and negligently graded and ditched certain highways as to divert improperly the surface and rain water, etc., upon the lands of the plaintiff, causing the same to flow in a direction and with a force different and greater than it would otherwise have done, whereby the plaintiff was damaged, etc.

One question of some difficulty and upon which complaint is now made as to the ruling of the court is, whether the plaintiff can recover against one of the defendants for an act of the nature set out in the declaration, but' not done in his official capacity, nor recognized nor approved by the others, or either' of them.

The trial court held that no recovery could be had for any such act not concurred in by a majority of the defendants, and that only those so concurring in and responsible for the act could be made liable. The question is not wholly free from doubt, but we are disposed to agree with this view.

The declaration seems to have been framed for the purpose of testing the liability of defendants for acts done by them in their official capacity. It would not be competent, under such a declaration, to recover against one alone for an act done in his personal capacity not directed or assented to by the Board. It is, of course, true that in. actions for tort the verdict may be against a part or all of the defendants, but it must appear that those who are convicted are guilty of the act set out in the declaration, or so much of it as will be necessary to constitute a cause of action.

Upon the main question whether the plaintiff was injured as alleged by the act of defendants there was conflict in the testimony. We see no sufficient reason for saying the verdict, which was for the defendants, is against the evidence.

The instructions given by the court stated the law with sufficient accuracy, and. while a great number asked by the plaintiff were refused, to some of which no particular objection can be urged, yet we find that in those given was laid down all that was necessary to advise the jury of the legal principles involved. It would have been unwise to give all the instructions, twenty-eight in number, asked by the plaintiff, if they had all been good. A few clear, brief propositions were all the case required. Sundry exceptions were saved to the .rulings of the court during the tidal.

Among others now urged is that the defendants having moved to exclude the evidence of plaintiff, and being overruled, were permitted to offer testimony in defense. Strictly speaking, the motion which was interposed at the close of plaintiff’s case was to exclude certain items of the plaintiff’s evidence and to make it broad enough to cover what he was endeavoring to indicate. Counsel said he would move to exclude all. Pending the argument, plaintiff amended the declaration and the court excluded some of the evidence, but denied the motion as to the residue, and permitted defendants to proceed with their defense. Even if the motion can be considered as an oral demurrer to the evidence we hold the court might, in its discretion, have allowed the defense to be made. Other objections have been argued which we deem it not necessary to refer to in detail. The case mainly depended upon questions of facts which were examined very fully before the jury, and unless it were quite clear that substantial error had been committed to the prejudice of the appellants this court ought not to interfere.

The judgment will be affirmed.

Affirmed.


source: Caselaw Access Project

author: Par Curiam.

license: Public Domain

text:
    John W. Powell, Administrator, v. R. Wharton Ashlock.

      Claim of Surety Against an Estate — Practice.
    In a case where the question at issue is mainly one of fact, this court affirms the judgment of the court below, allowing the claim of a surety against an estate, upon a review of the record, without stating the case and its reasons at length.
    [Opinion filed August 26, 1886.]
    Appeal from the Circuit Court of Greene County; the Hon. George W. Herdman, Judge, presiding.
    Mr. James R. Ward, for appellant.

      Mr. John G. Henderson, for appellee.
   Par Curiam.

This was a claim against the estate of W. 0. English, deceased, for money paid by the plaintiff as his surety. The claim was allowed for $230.25. The main question in the case is one of fact. The transactions upon which the claim is based were numerous and quite complicated, and the plaintiff had some difficulty in eliciting the testimony. In order to state the case with such fullness as to make it intelligible to those not familiar with it, considerable space would be required and no useful purpose would be subserved thereby.

After an examination of the record and considering the printed arguments of counsel, we are satisfied the claim is just and should be paid by the estate. We find no error in the record, and the judgment will be affirmed.

Affirmed.


author: Congee, J.

text:
    Nora Wheeler v. William Mortland.
    Life Insurance — Surrender of Wife’s Policy by Husband — Equity Jurisdiction.

    ’Where the husband surrenders a policy of insurance on Ms life, payable to his wife, to the insurance company, in exchange for a policy in favor of his children, and upon his death payment of the latter policy is made to the guardian of the children, the widow can not maintain a bill against the guardian for the amount of the policy, as a court of equity is without jurisdiction, and there is no privity between the parties.
    [Opinion filed August 26, 1886.]
    Appeal from the Circuit Court of Calhoun County; the Hon. George W. Herdman, Judge, presiding.
    Messrs. Greathouse & Brown, for appellant.

      Mr. T. J. Selby, for appellee.
    The contract of insurance was between the association and Arthur W. Argust, and is not such a case as comes within the provisions of Sec. 54 R. S. (1874), 607.
    The first policy was surrendered back to the association and subsequently another policy taken out for the benefit of the Argust children. The latter contract was also between, the association and Arthur W. Argust, and appellee contends that the insured had full right to make such contract at the time he did so. It was in accordance with the terms of this new contract that appellee, as guardian, received the money in question. The widow had no right in the matter. Swift v. R., P. & F. C. Ben. As., 96 Ill. 309.
    When the contract is between the insurer and the insured, the latter may sell, change or assign the policy. Cole v. Marple, 98 Ill. 58; Johnson v. Van Epps, 110 Ill. 551.
   Congee, J.

This was a bill in chancery filed by appellant against appellee, representing that on the 18th day of June, 1878, Arthur W. Argust, the then husband of appellant, insured his life for §5,000, and for the benefit of appellant; that about the 25th day of May, 1884, the said Argust, without the knowledge or ■ consent of appellant, surrendered to the company said policy, and in lieu thereof received a new policy, payable to his two children, Bertram 0. and Wm. H. Argust. It further alleges that her husband died and the amount of the policy was paid to appellee as'the guardian of the children. The bill prays an accounting and that said fund be paid to her by the guardian.

A demurrer was sustained to the bill, and it was dismissed. We think there are no grounds shown by the bill giving a court of equity jurisdiction.

If appellant had a vested"interest in the original policy, which neither her husband nor the insurance company had a right to destroy, we see no reason why she might not proceed in a proper action at law against the company to test her right thereto.

There is, however, no privity between herself and appellee, and for that reason no action could be maintained against him. Affirmed.


author: Pleasants, J.

text:
    Ernst Disselhorst v. John P. Cadogan and Matilda Cadogan.

      Landlord and Tenant — Conveyance of Reversion Passes Rent — Partition Sale.

    1. An unqualified conveyance of demised premises, whether by operation of law or otherwise, passes the rent thereafter to accrue.
    2. In the case presented it is Held: That a sale of demised premises by a special commissioner in partition proceedings, under an order merely reserving the rights of the lessee, passed the rent thereafter accruing; and that the statement in the commissioner’s deed, that the purchaser was not to have possession until the termination of the lease, was unauthorized and of no effect.
    [Opinion filed August 26, 1886.]
    Appeal from the Circuit Court of Adams County; the Hon. William Marsh, Judge, presiding.
    Messrs. Charles M. Gilmer and William L. Gross, for appellant.
    Messrs. Emmons & Wells, for appellees.
   Pleasants, J.

On September 3, 1878, appellees and Elizabeth Hulse made a lease in writing to appellant of 240 acres in Adams County, for one year from March 1, 1879, at 8700, payable, one half on November 1, 1879, and the residue on March 1, 1880, under which he occupied during the term mentioned, and afterward under verbal renewals from year to year until March 1, 1884.

These lessors were some of the heirs of William Cadogan, who died seized of the demised premises and before the execution of the original lease. Appellant paid them the rent regularly until the death of Elizabeth Hulse, in March, 1883, and to appellees the installment due in November next following.

In the meantime, under proceedings in the Circuit Court of said county for the partition of said premises, the same were sold July 28th and deed therefor executed October "22, 1883, by the special commissioner to Henry Glaser, and to him appellant paid the installment due March 1, 1884, notwithstanding he had notice that appellees claimed it. Upon his refusal to pay it to them this suit was brought. The declaration was in debt on a parol demise with an indebitafais count for use and occupation. Pleas, nil debet and no rent in arrear. Trial by court without a jury on record evidence and stipu- • lation filed, finding and judgment for plaintiffs, exception and appeal by defendant.

Ho question is made of the regularity of the partition proceedings, or of the sufficiency of the commissioner’s deed to convey the title to Glaser. Appellant, however, was not made a party, nor did he in any way appear.

It is elementary law that rent is an incident of the reversion. An unqualified grant of the demised premises passes the rent thereafter accruing. Crosby v. Loop, 13 Ill. 625; Dixon v. Niccolls, 39 Ill. 372; Hardin v. Forsythe, 99 Ill. 312; Epley v. Eubanks, 11 Ill. App. 272. A conveyance by operation of law, or under a trust deed or power of sale in a mortgage, or by a Master or Sheriff under a decree or execution that is valid against the lessor, will be as efficacious as a deed from him directly. Whatever unqualifiedly passes his reversion will pass the rent thereaftér accruing. Carson v. Crigler, 9 Ill. App. 83; Epley v. Eubanks, 11 Ill. App. 272.

They may be severed, however, as by a grant of the land reserving the rent, or an assignment of the rent retaining the reversion. And the claim of appellees here is that the sale and deed to Glaser were not unqualified; that the rent to March 1, 1884, was reserved.

This rests upon the fact that at the sale the special commissioner publicly announced that the premises were occupied under a lease running to that day, and the following statement with which his deed concludes: It being understood that the said party of the second part takes said premises subject to a lease upon the same, and that he is not to have possession of said premises until March 1, 1884.”

The commissioner had only a naked power to execute strictly the order of the court, and could impose no terms or conditions nor make any reservation or limitation not required by that order or by the law. Bishop v. O’Connor, 69 Ill. 431. The order required him to sell all the interest of the owners in the premises but not that of the tenant. He was not before the court nor subject to the decree. His right to the possession until March 1, 1884, could not be disturbed. It was fair to those who might purchase the lessors’ interest to inform them of this right. This was the possession, which the purchaser was not to have until that day. But neither the possession nor right of possession of the lessors was withheld or reserved. All they had was ordered to be sold, was advertised to be sold, and was sold — all “ their right, title, interest^ claim and demand.” This was sold, according to the notice advertised, “subject to the interest of the tenant on the lands,” but to none of the lessors.

It was therefore- an absolute, unqualified sale and conveyance of their reversion to Glaser, and passed to him the subsequent rent.

The judgment of the Circuit Court must therefore be reversed and the cause remanded.

Reversed and remcuided.


author: Wall, J.

text:
    Indianapolis, Bloomington and Western Railway Company v. Thomas J. Buckles.

      Railroads — Killing of Stock — Verdict Sustained — Attorney Fees — Instruction — Practice.
    1. Where the evidence in support of the verdict is sufficient, if believed, this court will not interfere.
    2. In an action to recover damages from a railroad company for killing a horse, reasonable attorney fees may be recovered for the second, as well as for the first trial, although the new trial was granted by consent of counsel for plaintiff.

      3. This court has no basis on which to make an order for an_allowance of attorney fees to the appellee for services here, nor is there any convenient mode for its determination of such allowance, if the appellee is entitled thereto.
    [Opinion filed August 26, 1886.]
    Appeal from the Circuit Court of McLean County; the Hon. O. T. Reeves, Judge, presiding.
    Messrs. F. Y. Hamilton and C. W. Fairbanks, for appellant.
    Mr. William E. Hughes, for appellee.
    Where there is a positive conflict of evidence, and the facts and circumstances by any fair and reasonable intendment justify the inference of the jury, the verdict will not be disturbed upon appeal. McKichan v. McBean, 45 Ill. 228; Keith v. Fink, 47 Ill. 272; Creote v. Willey, 83 Ill. 444; Chapman v. Stewart, 63 Ill. 332; C., A. & St. L. R. R. Co. v. Stover, 63 Ill. 358.
   Wall, J.

This was an action to recover damages for killing a horse which it was alleged got upon the track of thei railroad through a defective fence.

There was a verdict for plaintiff for §200 and judgment thereon. The point mainly urged by appellant is that the evidence did not support the verdict. This was the second verdict for the plaintiff in the Circuit Court. There was evidence enough, if believed by the jury, to justify their finding. The instructions given by the court fairly presented the law ofi the case and it is apparent that the attention of the jury was sufficiently called to the important questions of fact growing out of the evidence. Counsel insist that sundry instructions given on behalf of the plaintiff should have been refused because there was not sufficient evidence on which to base them. We can not take this view and the objection will be overruled. It is objected the court refused the following instruction asked by defendant:

“ The court instructs the jury that if you believe from the evidence that no claim was made for attorney’s fees for trying this case before the Justice of the Peace, when the case was so tried, then you can not allow for the same in this court; and if you further believe that this case was tried before a jury in this court at the September term of court, and a verdict of §180 rendered against the defendant, and the plaintiff consented that a new trial be granted, then the additional labor of trying it at this term should not be considered in your verdict in allowing attorney’s fees; you are further instructed that you can not allow any attorney’s fees unless you believe from the evidence that the defendant is liable for killing the animal.”

In this class of cases the statute authorized a recovery for the value of the animal and for “ reasonable attorney fees in any court wherein suit is brought for such damages, or to which the same may be appealed.”

There was no evidence as to the value of the legal services before the Justice of the Peace where the suit originated, and therefore so much of the instructions as referred to fees for those services was unimportant. It is not necessary to determine whether the point is well made in this respect, and as it is not discussed by counsel, we need give it no attention. The feature of the instruction which is argued, relates to the propriety of allowing attorney’s fees for bo'th trials in the Circuit Court. It appears that the motion for new trial made after the first verdict was agreed to by counsel for plaintiff and the new trial was therefore granted by consent. How it is urged that no additional fee should be allowed for the second trial.

The.statute allows reasonable attorney fees for obtaining the judgment. The defendant by obtaining a new trial gained another chance of defeating the claim altogether, or of reducing the amount. We do not see why the fact that the new trial was agreed ,to should affect the rights of the plaintiff-unfavorably. We have no means of knowing the reasons why this consent was given, nor is there anything upon which to infer that the right to recover the fees has been' waived or compromised by any unfair or improper conduct of the plaintiff or Ms counsel. So far as we are able to say upon this record the extra legal services are as properly allowable here as though they had been occasioned in the ordinary way. What amount would be reasonable, would depend upon, among other things, the labor-made necessary by protracted or repeated trials and other delays. It is not so unusual for counsel to consent to a new trial as to raise any unfavorable inference, and it is not easy to see upon what ground the appellant, who asked for it, can complain of its direct consequence. It is suggested by counsel for appellee that in the event of an affirmance he wishes an allowance made in this court for his services here. Granting he may have an allowance for such services, we have no basis upon which to make the order nor is there any convenient mode by which we. can try a mere question of fact (if the right to a jury is not involved or if it were waived) and the utmost we could do would be to make up an issue to be tried elsewhere. It is deemed better not to undertake this, but to leave the appellee to such course as he may be advised.

The judgment of the Circuit Court will be affirmed.

Affirmed.


author: Conger, J.

text:
    Commissioners of Highways v. J. J. Mallory et al.

      Boadsfor Private, and Public Use — See. 54, Act of 1883 — What Petition Must Contain to Give Commissioners Jurisdiction.

    1. To give the Commissioners of Highways jurisdiction,'a petition under Sec. 54 of the Act of 1883 must substantially aver that the proposed road is to be laid out from one dwelling or plantation of an individual to a public road, from one public road to another, or from a lot of land to a public road.
    2. When the clause. “ or from a lot of land to a public road,” is relied upon, the petition must contain a suitable description of such lot.
    [Opinion filed August 26, 1886.]

      In error to the Circuit Court of Fulton County; the Hon. J. C. Bag-by, Judge, presiding.
    Messrs. Gray & Waggoner, for plaintiffs in error.
    Mr. John W. Bantz, for defendant in error.
   Conger, J.

This was a proceeding by common law writ of certiorari, to review the proceedings of the Highway Commissioners of the Town of Cass, in Fulton County, in laying out a road for private and public use, under Sec. 54 of the Road and Bridge Act of 1883, which provides : “Roads for private and public use, of the width of three rods or less, may be laid out from one dwelling or plantation of an individual to any public road, or from one public road to another, or from a lot of land to a public road, on petition to the Commissioners by any person directly interested.”

The petition presented to the Commissioners was as follows: To the Commissioners of Highways of the Town of Cass, County of Fulton and State of Illinois: The undersigned persons, directly interested therein, do hereby petition you to lay out a road for private and public use, of the width of twenty (20) feet, as follows: Commencing at or near the southeast corner of the southwest quarter of section twenty-seven (27), in the said Town of Cass, and running thence west on or near the said section line of the said section twenty-seven (27) to or near the southwest corner of said section twenty-seven (27); thence south on or near said line, between section thirty-three (33) and section thirty-four (34), to the Bernadotte and Cuba road, and then to end.

The names of the owners of land over which said road will pass are George R. Herbert, George and James Long, John Trotter, M. D. Miller, J. T. Mallory and Saphronia Mallory, and Wilson Rector.

Tour petitioners pray that you will proceed to lay out said road, and cause the same to be opened according to law.

Dated at Cass, this 2d day of October, 1885.” (Signed by twelve petitioners.)

Before a petition founded upon the section quoted, supra, can give jurisdiction, it must substantially aver that the proposed road is to he laid out from one dwelling or plantation of an individual to a public road, or from one public road to another, or from a lot of land to a public road.

We presume the petition in this case was intended to be based upon the latter clause as there can be no pretense that it complies with either of the other two.

The petition gives us the initial point of the proposed road, the southeast corner of the southwest quarter of section twenty-seven. But which one of the four quarter sections of land that come at this point is meant to be the “ lot of land ” from which the road is to start, or which one of the interested land owners mentioned in the petition is the owner of the unknown “ lot of land,” the petition does not disclose.

When the clause, “or from a lot of land to a public road,” is relied upon as the initial or starting point for a road, we think it is necessary to describe in the petition such lot by some suitable description, and then pray that a road be granted from such lot of land to the proposed terminus. Randolph v. Commissioners of Highways, 8 Ill. App. 128.

We think this petition was fatally defective and failed to give the Commissioners jurisdiction to lay out the proposed road, and the judgment of the Circuit Court, quashing their proceedings, was proper, and is therefore affirmed.

Affirmed.


author: Corger, J.

text:
    J. P. Lamonte v. The Town of Montebello.

      Damages for Killing Sheep — Finding of Justice under Sec. 30, Ch. 8, R. S., not a Jzidgment — Attempted Appeal — Bond, Void — Estoppel.
    1. The finding of a Justice of the Peace in á proceeding under Sec. 30, Oh. 8, R. S., for proof of damages for sheep killed or injured, is in no sense a judgment, and no appeal lies therefrom.

      2. A bond given by a Supervisor upon an attempted appeal from such a finding is absolutely void, and it will not sustain an action.
    3. The obligors in such a bond are not estopped from, denying the recitals therein contained.
    [Opinion filed August 26, 1886.]
    Ir error to the Circuit Court of Hancock County; the Hon. C. J. Scofield, Judge, presiding.
    Messrs. Manier & Miller and Masor & Halbrower, for plaintiff in error.
    Messrs. Hooker & Edmunds, for defendant in error.
   Corger, J.

This is an action of debt, brought upon an instrument purporting to be given by the town to the plaintiff in error as an appeal bond, reciting, in effect, that Lamonte, on January 24, 1884, before George D. Gates, a Justice of the Peace, recovered a judgment against the town for §166 and costs, from which judgment the town had taken an appeal to the Circuit Court, with the usual conditions of an appeal bond.

The facts necessary to an understanding of the case are briefly as follows: In January, 1884, Lamonte appeared before said Gates, a Justice of the Peace of said Town of Montebello, and claimed damages, under Sec. 30, Chap. 8, Ee vised Statutes, because of his sheep having been killed and injured by dogs.

The justice entered upon his docket the following finding: “After hearing and weighing the evidence it is the judgment of the court that, the damage that J. P. Lamonte has sustained by the killing and injuring said sheep is 8166, and that J. P. Lamonte should have and recover from the dog tax fund in Montebello Township the sum of 8166, together with the costs of proceedings herein, taxed at 82.50.”

H. C. Hanson, Supervisor of the town, in attempting to take an appeal from this finding of the justice, filed with the Clerk of the Circuit Court, for the purpose of perfecting such appeal, the bond sued upon in this case. At the March term, 1884, of the Circuit Court, the court, on motion of Lamonte, dismissed the appeal, which decision of the Circuit Court was afterward, upon appeal to this court, affirmed.

"Various pleas were filed and proceedings had upon this action of debt, resulting in a judgment against Lamonte for costs, which judgment he brings into this court, by writ of error, for review.

A number of points are raised and discussed with great ability in the briefs filed, but in the view we take it will not be necessary to notice all of them.

There was no judgment to appeal from and hence there could be no appeal.

The finding of the justice was in no sense a judgment against the town; it was a mere adjustment of a claim against the dog tax fund, in the manner provided by the statute, to guide the Supervisor in paying such fund out to those entitled to it.

It follows, we think, as a self-evident proposition, that any attempt on the part of the Supervisor, whether acting upon his own responsibility or by authority of the voters at a town meeting, to give an appeal bond in a case where no ajipeal is allowed by law, is absolutely void, having no original vitality and incapable of ratification.

Where bonds have been issued without power or authority of law authorizing their issue, they are absolutely Amid.” Barnes v. Town of Lacon, 84 Ill. 464; Town of Pana v. Lippencott, 2 Ill. App. 476; Lippencott v. Town of Pana, 92 Ill. 24.

Numerous authorities are cited in support of the proposition "urged by appellant, that the obligors in an appeal bond are estopped from denying any of the facts recited in the bond or deducible therefrom.

This doctrine, we think, had no application to this case, for it is the established rule of law in this State as to municipal negotiable bonds, even in the hands of innocent holders for value, that where there is an absence of power to. issue them, they are absolutely void, and recitals contained in them will not estop the municipality from setting up such want of power.

If such be the doctrine as to negotiable paper in the hands of innocent holders for value, the reasons for applying it to the case at bar are much stronger and more satisfactory.

Here appellant is the original obligee in the instrument, having paid nothing for it, nor has the execution of such bond been the necessary cause of the loss of his claim against the fund in question. Had he pursued the remedy provided for him by Sec. 30, we can not see how the execution of the bond, or the pretended appeal, would in any way have interfered with the prosecution of his claim.

We are of opinion there could be no recovery upon the bond in question, against the town, and the judgment of the Circuit Court will therefore be affirmed.

Affirmed.


author: Coegeb, J.

text:
    John M. Easton v. G. M. Mitchell.

      Landlord and Tenant — Term Must be Certain — Construction of Lease —Hule—Quantum Meruit.
    1. A lease for “ the whole time that he [the lessee] may be postmaster,” is held to have expired with the expiration of the commission held by him at the time of its execution.
    2. In every estate for years the term must be certain.
    3. Where the lessee holds over, the lessor may recover on a quantum meruit.

    4. It is a rule of construction that a contract should be supported rather than defeated.
    [Opinion filed August 26, 1886.]
    In error to the Circuit Court of Coles County; the Hon. J. W. Wilkin, Judge, presiding.
    Messrs. Craig & Craig, for plaintiff in error.
    Messrs. Wiley & Neal, for defendant in error.
   Coegeb, J.

Mitchell was appointed postmaster of Charleston, Illinois. His first commission was dated April, 1877, and expired on the 15th or 16th of April, 1881.

On the 11th day of March, 1879, Mitchell rented from Easton a room for a post office, and the parties executed the following lease:

“ This agreement made and entered into this 11th day of March, by and between Greenville M. Mitchell, of Charleston, Coles County, Illinois, party of the first part, and John M. Easton, of the same place, party of the second part, witnessed, that the said party of the first part has this day rented from the said party of the second part, the ground floor of the brick building described as follows, to-wit: Eighteen (18) feet eight (8)' inches off the cast side o.f lot thirty (30), original town of Charleston, Coles County, Illinois, to be used by said party of the first part as a post office, yielding and paying therefor the sum of ninety-six (96) dollars per annum, to be paid in installments of eight dollars at the end of each month. Said building to be put in good repair by the said party of the second part, the party of the first part paying for said repairs out. of the rents as they fall due.
The said party of the first part covenanting and agreeing to occupy, during and for the whole time that he may be postmaster for said town of Charleston. The said party of the second part covenanting for the peaceable and quiet occupancy by the said party of the first part, during the whole of his time as tenant of the premises aforesaid.
Witness our hands and seals at Charleston, this, the 11th day of March, 1879,
Greenville M. Mitchell,
J. M. Easton.”

About a month before the expiration of the first commission, which ended April, 1881, Easton notified Mitchell that when his time was out under said commission, he should want the building, or if he,. Mitchell, kept it thereafter, he must pay as rent therefor twenty dollars per month.

Mitchell it seems was re-appointed postmaster for another term, and continued in the occupancy of the building after April, 1881, for some fifteen months.

Upon the trial below, plaintiff in error claimed that the written lease expired with the first term, in April, 1881, and testified to the value of the premises thereafter, upon the theory of recovery upon a quantum meruit, whereupon the court excluded such evidence from the jury and instructed them to find for the defendant.

It is not at all clear what the lease means as to the length of t:me it is to run. ’ But it must be construed to mean the term of office of four years which the first commission covers, or the lease is void, and can neither afford a right of action nor protection of either of the parties.

Every estate for years must have a certain beginning and certain end ; it is called a term, terminus, because its duration or continuance is bounded, limited and determined. “ A lease for so many years as J. S. shall live, is void from the beginning, for it is neither certain nor can ever be reduced to a certainty during the continuance of the lease. And the same doctrine holds if a parson makes a lease of his glebe for so many years as he shall continue parson of Dale; for this is still more uncertain. But a lease for twenty or more years, if J. S. shall so long live, or if he should so long continue parson, is good, for there is a certain period fixed, beyond which it can not last, though it may determine sooner, on the death of J. S. or his ceasing to be parson there. ” Blackstone, book 2, page 143.

One of the rules for construing contracts requires that a contract should be supported rather than defeated. “ Thus, a deed which can not operate in the precise way in which it is intended to take effect, shall yet be construed in another, if in this other it can be made effectual. This desire of the law to effectuate rather than defeat a contract, is wise, just and beneficial.” Parsons on Contracts, Vol. 2, pages 15-17.

It is not unreasonable to say that the parties entering into the lease had in view when they used the general words, “ agreeing to occupy during and for the whole time that he may be postmaster, ” the term of office which the law fixed under the appointment then made at four years, and not future appointments. They are presumed to have known the law, and that by the rules of law the former construction would effectuate and make valid their contract while the latter would render it absolutely void.

We therefore are inclined to hold that the written contract expired by its own limitation at the termination of Mitchell’s first term, in April, 1881.

From that date, he having been notified ,by his lessor to surrender the house or páy an increased rent, we hold he was liable for whatever could he shown to be a reasonable rent' therefor.

The judgment of the Circuit Court will he reversed, and the cause remanded.

Reversed and remanded.


text:
    William Mount v. S. D. Scholes.

      Jurisdiction — Judgment of Court of Concurrent — When Not a Bar to Suit by Administrator on Notes — ■Fraud—Evidence.
    1. In all cases of concurrent jurisdiction the court which first obtains it will retain it to the end of the controversy, to the entire exclusion of others.
    2. A suit by an administrator, on notes payable to his intestate, is not barred by a judgment rendered by a court of concurrent jurisdiction in a fraudulent suit subsequently brought by the wife of the maker in the name of the administrator for her use, she having possession of the notes.
    3. Copies of the notes sued on are held to he competent evidence, the parties having agreed to their use and the defendant having wrongfully aided in placing the notes in the records of the other court.
    [Opinion filed August 26, 1886.]
    In error to the Circuit Court of Sangamon County; the Hon. James A. Creighton, Judge, presiding.
    Messrs. H. M. Broadwell and W. J. Conkling, for plaintiff in error.
    A former adjudication bars another suit between the same parties and privies for the same cause of action. Jones v. Smith, 13 Ill. 301; Zimmerman v. Zimmerman, 15 Ill. 34; Crosby v. Gipps, 16 Ill. 352 ; I. C. R. R. Co. v. Allen, 39 Ill. 205; Krenchi v. Dehler, 50 Ill. 176.
    A suit may be brought in the name of the party in whom the legal title is, for the use. of the holder of an unindorsed note. In case of the death of the payee, the holder may use the name of the administrator, although he prótesis- against it. Bates v. Kempton, 7 Gray, 382; Wait’s A. & D. 370.
    It is not competent for the defendant to controvert the right of the party for whose use the suit is brought, but it is enough to show a right in the legal plaintiff; and the party for whose use the suit is brought need not show any right in himself. Hamilton v. Brown; Saltmarsh v. Bower, 22 Ala. 221.
    Messrs. Patton & Hamilton, for defendant in error.
   Conger, J.

This was an action of assumpsit, by S. D. Scholes, administrator of Travis Glasscock, deceased, against William Mount, upon several notes executed by said Mount to the said Glasscock in his lifetime.

The suit was brought in the Sangamon Circuit Court on the 28th day of December, 1882, and the summons was served upon Mount upon the 30th day of December, 1882.

Mount interposed two pleas: 1st, non assumpsit, upon which issue was joined; and 2d, former recovery, setting up a judgment against him in the Menard County Circuit Court, rendered as claimed upon the same notes. A general demurrer was filed to the latter plea and sustained by the court, upon which ruling error is assigned, but we do not deem it essential to pass upon the point, as appellant introduced the record of the Menard Circuit Court under the general issue, and obtained all the benefit such record could give him thereby.

Travis Glasscock, at the time of his death, was about eighty-two years old, was the uncle of Mount’s wife, and had lived a time before his death and died at Mount’s house.

Before he went to Mount’s to hoard, he caused one Barber to make and retain copies of these notes on Mount.

By some means not explained by the evidence, after Glass-cock’s death, Mrs. Mount obtained possession of these notes upon her husband, and on the 2d day of March, 1883, some two months after the institution of the present suit, went with her husband to the Menard County Circuit Court, and there, entirely without the knowledge or consent of Scholes, the administrator, tiled a declaration in that court in vacation, upon these notes against her husband. The declaration alleged the giving of the notes to Glasscock, and that he in his lifetime had given them to her, and the suit was brought in the administrator’s name for her use.

To this declaration, Mount, upon the same day, filed his affidavit of the genuineness of his signature, together with his confession of the amount due, and thereupon judgment was entered by the clerk.

The time when these papers were filed in the Menard Circuit Court does not appear by any file mark upon them, the record showing no file marks upon either the declaration, cognovit or affidavit, but shows merely that the affidavit was sworn to and the judgment entered upon the 2d of March, 1883. So obnoxious do dates appear to be in these papers that the declaration is entitled, “In the Menard County Circuit Court of in vacation term .in the year eighteen hundred and eighty-three.”

The court below decided properly in entirely disregarding the Menard judgment for two reasons: 1st, it was a fraud, so bald and palpable in itself as to be entitled to no respect ; 2d, the Menard Circuit Court had no jurisdiction, and its pretended judgment could not be used to delay or defeat this action.

The Sangamon Circuit Court had obtained jurisdiction of the subject-matter and of the person of Mount two months b yfore the appearance of the parties in. the Menard Circuit C yurt.

It is elementary law and needs no citation of authorities to support it, that in all cases of concurrent jurisdiction the court which first obtains it will retain it to. the end of the controversy to the entire exclusion of others.

Copies of the notes were used as evidence of the -indebtedness by agreement of the parties that such copies might be used, if the originals were proper evidence under the facts of the ease. We think it is clear that the originals, if present in court, would have been proper evidence, as they were not merged in the pretended Menard judgment, nor their vitality in any way destroyed by the proceedings in that court.

Again, Mount could not be heard to complain of the absence of the notes, and that they were in the possession of the Clerk of the Menard Circuit Court as part of the files of that office, for he was evidently a party to the placing of such notes there wrongfully.

The judgment of the Circuit Court is right and will therefore be affirmed.

Affirmed.


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    S. Ellsner & Company v. Charles C. Radcliff et al.

      Levy on Goods Claimed to be Held on Consignment — Rights of Owner — ■ Sales — .Instructions.
    1. Where the owner consigns goods to a factor to sell and aócount to him for them, and the factor exhibits himself to the world as the owner without the knowledge or consent of the owner, the creditors of the factor can not seize the goods for his debt, even in the absence of actual notice.
    2. Where it is a matter of dispute whether the transaction in question was a sale or a consignment, the party claiming to be the owner has a right to have his claim passed upon by the jury under proper instructions.
    [Opinion filed August 26, 1886.]
    Appeal from the Circuit Court of Macon County; the Hon. C. B. Smith, Judge, presiding.

      Messrs. Outten & Tail,, for appellants.
    Messrs. Buckingham & Walker and Bunn & Park, for appellees.
   Conger, J.

Appellants placed in the hands of Steinhardt & Co., at Decatur, Illinois, a quantity of cloaks, to sell at retail and account to them for their value. While in the possession of Steinhardt & Co., under this arrangement, the cloaks were levied upon by appellees as the property of Steinhardt & Co., for their debts. Whether the transaction between appellants and Steinhardt & Co. was a sale by which the title to the property passed to the latter or whether Steinhardt & Co. were factors or agents of appellants, is a disputed question upon which we shall express no opinion for the reason that appellants had the right to urge their theory of the transaction upon the jury and have the law applicable thereto correctly given to them. This we do not think was done by the court in giving the following instruction at the request of appellees :

“ 10th. The court instructs the jury, in behalf of the defendants, that if they believe from the evidence that the plaintiffs caused the goods in controversy to be delivered’ to Steinhardt & Co. for sale, that Steinhardt & Co. so used and managed the goods and so conducted his business and so advertised that he exhibited himself to these defendants and others that he appeared to be the owner óf said goods to these defendants and the public generally, any creditor taking said goods in good faith, under proper legal process, would have the right to seize said goods and sell the same to make a bona fide debt, and if they believe such facts appear from the evidence, they should find the defendants not guilty, provided the defendants did not have any notice that the goods in controversy were the .property of the plaintiff.”

Under this instruction appellants consigned these goods to Steinhardt & Co. as factors, to sell and account to appellants for them, and such factors exhibited themselves to the world as owners without the knowledge or consent of appellants; creditors of the factors, unless they have actual notice of the real ownership, could seize the goods for the debt of the factors ; this is not the law.

“A power to sell, such as is possessed by a factor or broker appointed for the purpose, can only be executed by way of sale, and does not justify a disposition of the property in any other manner. A factor, therefore, has no authority to pledge the goods of his principal as a security for a debt due from himself, even though the creditor has no notice of his character as factor. So if the factor attempts to make such pledge and delivers the goods to the pledgee, the owner may recover them in an action of replevin.” Gray v. Agnew, 95 Ill. 315.

The factor must be exhibited to the world as owner, with the assent of the owner, and by that means obtain credit to make the principal or his goods liable for the debt of the factor. Kents Com., Vol. 2, p. 625.

The general rule of law is, that no one can, by his sale, transfer to another the right of ownership in a thing wherein he himself had not the right of property, except in instances of cash, bank bills, checks, notes, etc., and no one can acquire a title to chattels from a person who has himself no title to them. The exceptions to this general rule will be found to be cases where the true owner has transferred the property under the form of a regular sale and delivery, and clothed the vendee with the indicia of ownership, though under such circumstances as would authorize a rescission of the sale and a recovery of the goods as against the vendee.

If the vendor consents to the transfer of the title, though such consent be temporary only, and obtained by fraud, still an honest purchaser from him will be protected, and the first owner must bear the loss. But this principle does not apply when the original owner has never consented to the transfer of the property,- nor voluntarily delivered possession of it under the form of a sale, or clothed the supposed vendee with the' indicia of ownership although he may have for various purposes delivered his property to another and permitted him to remain in possession thereof. Jennings v. Gage, 13 Ill. 610 ; Fawcett v. Osborn, 32 Ill. 411; 1 Smith’s Leading Cases, 602-892; Peters v. Smith, 21 Ill. 417.

While possession of personal property is one indicium of ownership, and is prima facie evidence of title in the person in possession, yet when explained so as to be consistent with ownership in another it .will not defeat the title of the true owner.

A creditor has no greater rights than a bona fide purchaser under such circumstances, and therefore the foregoing views are applicable to the case at bar. The instruction given clearly prevented appellants from having their theory of the case properly presented to the jury.

For the error in giving this instruction and refusing the 4th, asked for by appellants, the judgment of the Circuit-Court will be reversed and the cause" remanded.

Reversed and remanded.


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    Jason Green, Administrator, v. Charles B. Smith.

      Practice — Reversal under Rule 30.

    This court reverses the judgment of the court below pro forma, the appellee having failed to file Ms brief.
    [Opinion filed August 26, 1886.]
    Appeal from the Circuit Court of Douglas County; the Hon. J. F. Hughes, Judge, presiding.
    Mr. C. W. Woolverton, for appellant.
   Per Curiam.

No briefs having been filed by the appellee, under rule 30, the judgment of the court below will be reversed and the cause remanded.

Reversed and remanded.


author: Per Ouriam.

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    Highway Commissioners v. Hamilton Brothers.

      Taxation of Costs — Fees of Witnesses, Subpoenaed, but not Called — ■ Practice,

    1. The fact that witnesses who had been subpcenaed were not called to testify, is not of itself sufficient reason why their fees should not be taxed.
    2. In the ease presented, it is held that a motion to retax costs previously paid by the adverse party should have been denied.
    [Opinion filed August 26, 1886.]
    [ '"Appeal from the Circuit Court of Champaign County; the Hon.' C. B. Smith, Judge, presiding.
    Mr. J. L. Ray, for appellants.
    Mr. Thomas J. Smith, for appellees.'
   Per Ouriam.

The appellees recovered á judgment against the appellant which was reversed in this court and the cause remanded. 13 Ill. App. 358. After the case was reversed, but before any other steps taken in the Circuit Court, the appellees, who were plaintiffs below, paid the cost of the case including that made by appellants, defendants below, there then being no judgment against plaintiffs for the defendants’ costs. Subsequently the case was redocketed in the Circuit Court and was finally tried pro forma it is said — there being no witnesses in attendance — by the court, and formal judgment rendered against the plaintiffs for costs. Whereupon a motion was made by plaintiffs and allowed, to retax the costs, which order is the subject of complaint in the present appeal. The only apparent ground for the order was that the witnesses whose fees were retaxed, though subpcenaed for the defendants, were not called to testify. This would not, as a matter of course, be sufficient reason why the party should not recover the cost of such witnesses. It often happens that witnesses are summoned in anticipation of an attack, which, though threatened, is abandoned, when the witnesses are present. Smith v. Kinkard, 1 Ill. App. 620.

At any rate the cost in this instance was voluntarily paid by the appellees months before this motion was made, and for this reason if for no other the motion should have been denied.

The judgment will be reversed.

Reversed.


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    Chloe J. Wright, who sues, etc. v. Frank C. Wright.

      Practice — Dismissal upon Order of Plaintiff.

    The court below is held to have properly dismissed the cause upon a written order of the plaintiff, there being no proof to impeach the validity and good faith of the order.
    [Opinion filed August 26, 1886.]
    Appeal from the Circuit Court of Logan County"; the Hon. Gr. W. Hebdman, tTudge, presiding.
    Mr. Oscar Allen, for appellant.
    The appellant claims that the facts set up in the affidavits amount in substance to a plea of payment, or accord and satisfaction, and that such an issue of fact can be tried only by jury, upon testimony viva voce, with a light to cross-examine witnesses, unless such lights are waived; and that to dispose of such an issue upon motion and affidavits is a denial of the right of trial by jury. •
    It is true that it has been held in several instances in this State that a case may be dismissed upon motion and affidavits "where the court can see that it is impossible that injury can result. Rybolt v. Milliken, 5 Ill. App. 490; Toupen v. Gargnier, 12 Ill. 79; Henchey v. Chicago, 41 Ill. 136; Christopher v. Ballinger, 47 Ill. 107; Ferris v. M’Clure, 36 Ill. 77.
    Each of these cases was decided upon peculiar facts which do not seem similar to the facts of the present case, and they fall far short of showing, by decision or principle, that a court can refuse a trial because the defendant and his attorney file their affidavits that the subject-matter of the suit has been paid or settled.
    Messrs. A. D. Cadwallader and Beach & Hodhett, for appellee.
    Parties to a suit may settle the same at any time and courts will enforce settlements so made. Chapman v. Shattuck, 3 Gilman, 49; Toupen v. Gargnier, 12 Ill. 79; Henchey v. Chicago, 41 Ill. 136 ; Christopher v. Ballinger, 47 Ill. 107.
   Per Curiam.

. In this case a written order of the plaintiff was filed dismissing the suit, which the court carried into effect by dismissing it.

There was no proof to impeach the validity and good faith of the order of dismissal. The court would not try such a ■ question, if contended, by affidavits, nor by such a mode of inquiry determine the validity of the settlement; but the instrument not being impeached would properly carry it out and dismiss the suit, which was in this case done, and, as we think, properly.

Affirmed.


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    Chicago & Alton Railroad Company v. Marshall H. Smith.

      Right of Physician to Practice Medicine — Evidence—Sufficiency of.

    In an action by a physician to recover for medical services, slight evidence of his right to practice medicine is sufficient as against one who called him.
    [Opinion filed August 26, 1886.]
    Appeal from the Circuit Court of Greene County ; the Hon. G. W. Herdman, Judge, presiding.
    Messrs. Patterson & Starkey, for appellant.
    Mr. David F. King, for appellee.
   Wall, J.

The plaintiff recovered $15 for medical services rendered to a person who had been injured by a train on defendant’s road. It was alleged the services were rendered at the instance of the conductor and station agent. There was evidence tending to make out the case. The only point upon which there is difficulty relates to the legal right of the plaintiff to practice medicine. Conceding he must prove this before he can collect his bill, slight evidence would suffice.

He testified without objection that he had practiced since 1872, and that he had a certificate as required by the State Board. It was shown that his name appeared on the register of physicians in the County Clerk’s office. This is enough as against the defendant, who called him, and thereby recognized his right to exercise the functions of his profession.

The judgment will be affirmed.

Affirmed.


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    City of Springfield v. Elizabeth Scheevers.

      Municipal Corporations — Injury Caused by Excavation in Street by Lot Owner —City Liable for — Practice.
    1. The duty of a municipal corporation to maintain its streets in a safe condition can not be evaded or delegated to others, and it is liable for resulting damages if it authorizes or permits the owner of an abutting lot to make excavations in front thereof.
    2. This court will not consider an objection that the damages are excessive, which was not made on the motion for a new trial.
    [Opinion filed August 26, 1886.]
    Appeal from the Circuit Court of Sangamon County; the Hon. James A. Creighton, Judge, presiding.
    Messrs. Greene, Burnett & Humphrey, for appellant.
    Messrs. McClernand & Keyes and John C. Snigg, for appellee.
   Wall, J.

The appellee recovered a judgment for 81,000 against appellant for injury sustained by falling into an excavation in a public street.

It appears that certain private persons wishing to erect a building at the point in question applied to the city for and were granted permission to excavate the sidewalk.

The opening thus made not being sufficiently guarded the appellee received the injury complained of. It is urged the damages are excessive. This objection was not made on the motion for new trial and can not be considered here for the first time. Jones v. Jones, 11 Ill. 562; O. O. &F. R. V. R. R. Co. v. McMath, 91 Ill. 104.

The main question is whether, upon the facts, the city is liable if the plaintiff was exercising ordinary care. It may be assumed the jury were warranted in their verdict as to the point that there was no want of ordinary care on the part of ■plaintiff.

The duty of the city to' maintain the streets and sidewalks in such condition as to be reasonably safe for pedestrians, is not denied; but counsel insist that if there was a failure to provide the necessary protection the fault lies with the persons who were erecting the building and the city can not be held without showing notice, or such a condition of things for such a length of time that notice may be implied.- Where a street becomes unsafe from ordinary causes and injury is sustained in consequence, the basis of the action beinguegligence, notice, in fact or to be inferred from the circumstances, is essential to a recovery. But the duty ‘"of maintaining the streets in a safe condition devolves upon the corporation and can not be evaded or delegated to others, and if the city by its direct act or authority causes or permits the street to get out of repair, it will be liable. The rule is so stated in Dillon on Mun. Corp., Sec. 791 (2d Ed.), and the author further says that upon this principle, that the obligation may not be surrendered or abdicated, the city is liable for injuries caused by open excavations made therein with its knowledge or consent, expressed or implied, by the adjoining lot owner, for the purpose of an area or to obtain light and air for the basement or cellar of his building. This reasonable and just rule is applicable here. The city gave permission to make the excavation. True, there was a condition that the work should be done with care and due regard for the safety of all who might have occasion to pass that way, but this did not absolve the city from its duty.

It must be presumed to have known the condition of things and should be held responsible, as though it had notice., for the direct result of what it expressly authorized.

The judgment will be affirmed.

Affirmed.


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    Alonzo C. Green and Mary Green v. Michael J. Doyle.

      Liability of Owner of a Dog for Injuries to a Colt — Trespass—Pleading —Practice.

    1. In an action to recover damages resulting from injuries to a colt, while lawfully in the pasture of a third person, caused by the defendant’s dog, which he had unlawfully taken within the pasture, it is held: That the defendant is liable for any injury done by the dog; that no averment that he had previous notice of a vicious disposition in the dog was necessary, and that the declaration, being in an action on the case, was substantially good.
    2. A judgment will not be reversed on account of errors which worked no substantial injury to the appellants.
    [Opinion filed August 26, 1886.]
    Appeal from the Circuit Court of Adams County; the Hon. William Marsh, Judge, presiding.
    Messrs. Bonney & Wood, for appellants.
    The owner of domestic animals not naturally inclined to mischief is not liable for any injury committed by them to the property of another, unless it can be shown that he previously had notice of the animal’s mischievous propensity. Cooley on Torts, 342; Judge v. Cox, 1 Stark. 285; Beck v. Dyson, 4 Camp. 198; Jones v. Perry, 2 Esq. 482; Stumps v. Kelley, 22 Ill. 140 ; Pickering v. Orange, 1 Scam. 338 ; Brent v. Kimball, 60 Ill. 211; Keightlinger v. Egan, 65 Ill. 235 ; Wormley v. Gregg, 65 Ill. 251; Mareau v. Vanatta, 88 Ill. 132.
    If the animal is unlawfully in the close of plaintiff and does mischief, he may bring trespass for breaking the close and allege the mischief in aggravation of damages without alleging or proving scienter, but in an action on the case, the rule is otherwise. Van Leuven v. Lyke, 1 N. Y. 515.
    The gist of the action of trespass to realty is the injury to the possession, and to maintain it the plaintiff must have an interest, however temporary, in the soil itself or its profits, and if the premises be occupied, plaintiff must also have, as against one other than a tenant in common, actual and exclusive possession of the premises. Smith v. Wunderlich, 70 Ill. 426 ; St. L., V. & T. H. R. R. Co. v. Town of Summit, 3 Ill. App. 255 ; Dean v. Comstock, 32 Ill. 173.
    Mr. George W. Fogg, for appellee.
    Where the injury is committed by an animal through the negligence of the owner, scienter as to his mischievous propensity need not be alleged or proven. 1 Chitty on P. (16 Am. Ed.), bottom page 123 and note (u 3).
    If the owner act illegally, as by trespassing with his dog', he will be liable, although the dog did the injury complained of against his will. 1 Chitty on P., bottom page, 123, note (x); Beckwith v. Shoredyke, Burr, 2092 ; 9 Ballou’s Abr., 486 ; Deane v. Clayton, 7 Taunt. 516.
    If the master accompany the dog, himself a trespasser, the damage done by the dog is deemed consequential upon the wrongful action of the master, and renders the master liable to the same extent that it would had he done the damage with his own hand. 1 Addison on Torts, Sec. 381.
    And it is no defense to say the title of the locus vn quo, in which the alleged tortious acts took place, is in one other than the plaintiff, unless the defendant shall justify by showing authority from such other person to enter the premises, Finch v. Alston, 23 Am'.-Dee. 299.
    When a dog, not known to be vicious, enters alone upon land and does mischief, his owner is not liable ; but if the dog accompany his owner, while the latter is trespassing, and does mischief, though against the will of the owner, the trespasser will be liable for the damage done by his dog. Wolf v. Chalker, 31 Conn. 128 ; 49 Am. Dec. 256.
    And many of the cases go further. Where a dog entered the land of another and killed a cow, though the owner had no previous knowledge of the malicious character of the dog, he was held to be liable for the damages. Chunot v. Larson, 43 Wis. 536 ; 28 Am. Rep. 667.

      Where defendant’s animals are unlawfully and as trespassers in the close of another, their owner is liable for all damages or injuries they commit, whether he had previous notice of their tendency to commit the harm or injury complained of or not. Hor need it be alleged or proved that the owner or keeper of such animals had any previous notice of their vicious disposition, or that they had previously shown such disposition. Angus v. Radin, 8 Am. Dec. 626 ; Dolph v. Ferris, 42 Am. Dec. 246 ; Saxton v. Bacon, 31 Vt. 540 ; Lyons v. Merrick, 105 Mass. 71 ; Duncle v. Cacker, 11 Barb. 387; Lee v. Riley, 18 Com. B. (N. S.) 722 ; Ellis v. Loftus Iron Co., L. R., 10 C. P. 10 ; Tonawanda R. R. Co. v. Munger, 49 Am. Dec. 257, notes, and cases there cited.
    If a dog accompanies his trespassing owner, and does damage, such trespassing owner or keeper must answer for it, without regard to previous propensity, because the injury complained of is but the proximate consequence of his own trespass. Beckwith v. Shoredyke, 4 Burr, 2092; 49 Am. Dec. 257.
    He who has the care, custody or control of trespassing animals is liable for all the damage they may occasion. Smith v. Jacques, 6 Conn. 530; Russell v. Cotton, 31 Pa. St. 525; Noyes v. Colby, 30 N. H. 143.
   Congee, J.

In the summer of 1885, appellee Doyle pastured his mare and colt in the inclosed and private pasture of one Piggott, where stock of other people were also kept and pastured.

Appellants, Green and wife, accompanied by a small dog, unlawfully climbed over the fence and entered the pasture.

From some cause the horses became frightened and started to run, when the dog of appellants chased and worried the colt of appellee so much that in running over some rough and broken ground it fell, and received such injuries therefrom that it afterward died.

A declaration in case was filed setting forth at large the foregoing facts, to which a demurrer was filed, and upon the court overruling the demurrer appellants chose to abide by it, whereupon a jury was called and appellee’s damages assessed at 8160.50, for which judgment was rendered.

The principal objection taken to the declaration is that there is no averment that appellants had previous notice of a vicious disposition in their dog.

The answer of appellee is that appellants and their dog were at the time trespassers, and unlawfully in the pasture where appellee’s colt was, and the injury was the direct and natural consequence of such trespass; to which appellants urge in reply that such trespass is a wrong done only to the one in possession of the close, and of which appellee can not avail himself as the foundation of action.

So far as the trespass of appellants upon the land of Piggott was an invasion of the rights of those in possession, and an injury to the close, it would clearly be no concern of appellee; but if such unlawful entry was the direct and proximate cause of injury to appellee, we see no good reason why it may not afford a ground of action to him.

The vital question is, whether the dog was by the voluntary act of appellants wrongfully and illegally in the place where the injury was inflicted; if so, they would be liable for any injury done by the dog, although appellants had no previous knowledge that he was vicious. Goodman v. Gay, 15 Pa. St. 188; Dicker v. Goodman, 44 Me. 322; 1 Addison on Torts Sec. 381; 1 Chitty’s Pl., side paging, 82.

We think the demurrer was properly overruled. The declaration was substantially good, not in trespass to personal property, or to real estate, but in an action on the case, which was the proper form of action; hence the authorities cited by appellants upon the question of trespass to real estate have no application. Some of the questions asked the witnesses upon the assessment of damages are not entirely free from error, but we do not think they worked any injury to appellants, and we do not therefore notice them in detail.

Upon the question of the value of the colt, we think the evidence was sufficient to justify the finding of the jury, and the judgment of the Circuit Court will therefore be affirmed.

Affirmed.


author: Conger J.

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    William Skinner and William Cannon v. F. S. Morgan.

      Individual Inability of Highway Commissioners for Negligence — Open Ditch — Jurisdiction of Justices of Actions to Recover Damages for Injuries to Personal Property. ........
    1. Commissioners oE Highways are individually liable for injuries resulting to others from the negligent performance of their official duties in constructing or repairing a public highway, such duties being ministerial.
    2. It is negligence on the part of Highway Commissioners to leave a tile; ditch along a highway open for months, without proper measures to protect; those using such highway. -
    3. A Justice oE the Peace has jurisdiction of an action-to recover dam-_ ages for an injury to personal property caused by the negligent performances-by Highway Commissioners of their duties.
    [Opinion filed August 26, 1886.]
    Appeal from the County Court of Champaign County; the Hon. J. W. Langley, Judge, presiding.
    Statement of the ease by Conger, J. This ease was brought into the County Court of Champaign County by appeal from a Justice of the Peace, where appellee sued appellants and one Meibach, to recover for the loss of a steer alleged to have been killed by falling into an open ditch while being driven along the public road, in September, 1885.
    Defendants below became Commissioners of Highways of Tolono Township at the following dates: Cannon in 1883, Meibach in 1884, and Skinner in 1885. Before any of them came into office, there was an open ditch about one-half mile long, running along the north side and parallel with the road leading east from the village of Tolono, through which the wátér from certain ponds situated in' the road ran toward the Embarras ¡River. This ditch is described by witnesses who measured it as being seven feet wide and four feet deep. The north hank next to the wire fence was nearly perpendicular, while the south bank sloped at an angle of about forty-five degrees to the bottom. After Skinner came into office in the spring of 1885, the Board of Commissioners caused to 'be dug in the bottom of this open ditch a tile ditch about two feet deep and one foot wide, in which an 'eight-inch tile was laid, and filled in six or eight inches of earth, leaving about one foot of the tile drain open. The work was completed about June 1st. The commissioners testified that in digging this tile ditch numerous veins of sand were cut across, which were of such a nature as to’ make it probable that the tile would settle unevenly and need to be re-adjusted before the ditch prepared for them was filled; for which reason the ditch, or about one foot of it, was left open. In the latter part of September, 1885, Morgan, when driving four steers along this road in the direction of Tolono, had the misfortune to have one of them killed by falling into this ditch, as he alleges. Attributing his loss to the negligence of these commissioners, he brought this suit against them as individuals, before a Justice of the Peace, to recover the damage incident to the loss.
    Mr. J. O. Cunningham, for appellants.
    The reasoning of the court in Sykes v. Town of Pawlet, 43 Vt. 439, is strongly against the liability of the defendants.
    This court had a similar Question before it in Pickerell v. Kunst, 15 Ill. App. 46, and decided the commissioners not liable. (See, also, 2 Thompson on Negligence, 819.)
    The court improperly refused instructions for the defendants based upon the legal and piro per discretion vested in Commissioners of Highways, the effect of which is in all cases to make these officers liable for the negligence of any and all passers over their roads, and to require action on their, part whether they have money to do with or not. Town of Harwood v. Hamilton, 13 Ill. App. 358.
    Mr. J. L. Ray, for appellee.
   Conger J.

Two questions arise upon this record: First, are Commissioners of Highways individually liable for an in,jury resulting to others from the negligent performance of their duties as such commissioners?

We think this question is settled in the affirmative in Teainey v. Smith, 86 Ill. 391, where the court say: “ The work of constructing or repairing a public highway is not a judicial but a ministerial act, and must be performed with a proper regard to individual rights as well as the public accommodation. Commissioners of Highways are only in a very limited sense judicial officers; repairing a highway is not of that character. For the negligent performance of ministerial acts they are personally responsible if injury results to others.”

In this case there was a dangerous excavation, made by the commissioners themselves, left for months along the side of the highway, with no guards or other protection to the traveling public, for the purpose, as the commissioners claim, of testing the effect of tiling placed therein.

The commissioners had no right to thus expose the lives and property of citizens. If they desired for any purpose to leave such a dangerous ditch open until they could satisfy themselves as to its character or capacity, they should have taken some proper measures to protect the public while they were thus experimenting.

The second question is: Has a justice jurisdiction of an action founded upon an injury to the personal property of another, caused by the negligent performance on the part of the commissioners of their duties ?

The determination of this question depends upon the proper construction of the. second paragraph of Sec. 13, chapter 79, which declares that Justices of the Peace shall have jurisdiction “ in actions for damages for injury to real property, or for taking, detaining or injuring personal property.”

We said in C. & A. R. R. Co. v. Calkins, 17 Ill. App. 55, “ The expression here used, injury to real property,’ is about as comprehensive as could well be devised, and would seem to embrace all injuries, whether direct or consequential; and this we understand to be the view taken by the Supreme Court in Lackman v. Deisch, 71 Ill. 59.” We think the same may be said of the expression “ injuring personal property.” Prior to the revision of 1872 the jurisdiction of a justice in relation to injuries to personal property was given by the 12th paragraph of Sec. 18, Chap. 59, and was as follows: “ In all actions of trespass on personal property, and of trover and conversion in which the damages claimed do not exceed $100.” The same language was also used prior to the revision, in refer-, ence to a justice’s jurisdiction over injuries to real estate, confining such jurisdiction clearly, to trespass alone, and- not to actions in the nature of actions on the case; for by the Act of I'ebruary 15, 1855, Laws of 1855, page 139, it is provided:

“ That the jurisdiction of Justices of the Peace be and the same is hereby extended so as to include all actions for tres- * pass upon real estate, etc.”

We think the Legislature, by the revision of 1872, intended to enlarge the jurisdiction of a Justice of the Peace so as to embrace every class of injuries, both to real estate and personal property, whether direct or consequential, when the damages claimed do not exceed $200.

We perceive no good reason why damages for consequential injuries to personal property, for the recovery of which in a court of record an action on the case would be proper, may not be recovered before a Justice of the Peace as well as damages for the same character of injuries to real estate.

Numerous errors are assigned upon the instructions, but as they are substantially in accord with the views herein expressed, they will not be particularly noticed.

The judgment of the Oounty Court will be affirmed.

■Affirmed.


text:
    Nicholas Brechwald and Frederick Brechwald v. The People of the State of Illinois.
    Sales-Delivery to Common Carrier, a Delivery to Consignee-Sale of Liquor to Purchaser in another County-Conflict of Authority.
    1. As a general i~ule, a delivery to a common carrier is held to be a delivery to the consignee.
    2. Where liquor is sent by express by a dealer in one county to a pur-~ ~haser residing in another, the dealer can not be prosecuted in the latter cou~aty for illegally selling liquor therein.
    3. Where the question at issue has not been passed upon by the Supreme Court, and the authorities are conflicting, this court will adopt such rule as seems most consistent with sound reason and principle.
    [Opinion filed August 26, 1886.]
    In error to the County Court of McDonough County; the Hon. J. H. Baker, Judge, presiding.
    Messrs. Forest F. Cooke and W.B. Bradford, for plaintiffs in error.
    Messrs. James A. McKenzie and H. C. Agnew, for defendant in error.
    “ Delivery to a carrier is considered as a delivery to the consignee only when and as it is in agreement with the terms and intention of the shipment.” Taylor v. Turner, 87 Ill. 296; Cayuga Co. Bank v. Daniels, 47 N. Y. 631.
    If the plaintiffs in error intended to part with the title upon delivery of the "goods to the carrier, why send them C. O. D. ? Why attach to the shipment a - positive condition that the goods must not be delivered until paid for, and if not paid for that they must he held subject to the order of the consignor?
    In a conditional sale the title does not pass until the condition is performed. Benjamin on Sales, Sec. 366; Conway v. Bush, 4 N. Y. 564; Cayuga Co. Bank v. Daniels, 47 N. Y. 631; Wabash Elevator Co. v. Bank of Toledo, 23 Ohio St. 311; Hunt v. Eldridge, 5 Ill. App. 529; Russell v. Minor, 22 Wend. 659; Osborn v. Gantz, 60 N. Y. 540; Scuddcr v. Bradbury, 106 Mass. 422; Hill v. Freeman, 3 Cush. 257; State v. Comings, 28 Vt. 508.
    Tested by these authorities a sale of goods shipped C. O. D. is not complete until payment is made.
    The express company is the agent of the seller, and transacts the business for him. State v. Comings, 28 Vt. 508; Commonwealth v. Greenfield, 121 Mass. 40; Reynolds v. B. & M. R. R. Co., 43 N. H. 580.
    Sending goods C. O. D. by express is not different from sending goods by a private individual upon the same terms.
    The exact question involved in this case has never been passed upon by the higher courts of this State ; yet cases involving the same principle have recently been before the Supreme Court of Massachusetts, (Commonwealth v. Greenfield, 121 Mass. 40, and Commonwealth v. Eggleston, 128 Mass. 408,) and in each case the court held that the sale is made at the place where the liquor is delivered and paid for.
    In People v. Shriever, Chicago Legal News, February 21, 1885, a case exactly parallel as to its facts with the case at bar, Judge Treat, United States District Court of Illinois, says: “ In the case of liquor shipped by the defendant to Fairfield by express, C. O. D., the liquor is received by the express company at Shawneetown as the agent of the seller, and not as the agent of the buyer, and on its reaching Fairfield it is there held by the company as the agent of the seller, until the consignee comes and pays the money.”
   Wall, J.

The plaintiffs in error are liquor dealers, doing business in Knox County.) They received orders from Phillips, who was a resident of McDonough County, and on several occasions sent him intoxicating liquors in gallon packages by express, C. O. D. It was alleged that Phillips was a person in the habit of getting intoxicated, and that the sales so made to him were in violation of the Dramshop Act. The prosecution was instituted in McDonough County and resulted in conviction.' The important question presented is whether the sale was made in Knox or McDonough County.

When the terms of sale are agreed on and the bargain is struck and everything the seller has to do with the goods is1 complete, the contract of, sale becomes absolute between the -~ parties without actual payment or delivery, and the property and risk of accident to the goods rest in the buyer.

A delivery to a common carrier is generally deemed a delivery to the consignee. 2 Kent Comm. 492-496; Wade v. Moffett, 21 Ill. 110; Owens v. Woodman, 32 Ill. 409; Benjamin on Sales, Secs. 1, 181 and 315.

When the liquor was delivered to the carrier, nothing'-; remained to be done by the seller — the sale was complete, he retaining merely a lien for the price. The property rested in the buyer, and while he could not obtain possession until he paid the price, his right was perfect to have the property when the price was paid. The vendor could not withdraw from the bargain, and though the value of the liquor might advance he could receive only the price fixed. If there was an accident the loss would fall upon the vendee. In a word, it was his property, subject only to the lion for the price. This view is taken by the Supreme Court of Alabama, in Pilgree v. The State, etc., 71 Ala. 368.

Counsel refer to a case in Vermont, and to" rulings of TI. S. Circuit Courts, some of which we have not been able to find, as holding the opposite. Whore the rulings of courts are not harmonious, and the point has not been settled by our Supreme Court, we are at liberty to adopt such rule as to us seems most consistent with sound reason and principle.

In our opinion the sale in this instance was made in Knox County, and the prosecution was improperly instituted in McDonough,

The judgment will be reversed.

Reversed.


text:
    William E. Hughes v. William Stubblefield and Joseph Ator.

      Chattel Mortgage of Property Held under Distress Warrant, Valid.

    1, A chattel mortgage is valid though at the time of its execution a third person holds the property under the mortgagor, and has or claims to have a special property therein.
    2. In the case presented, it is held that a chattel mortgage of property, which was at the time of its execution in the possession of a third person under a distress warrant, is valid.
    [Opinion filed August 26, 1886.]
    Appeal from- the Circuit Court of McLean County; the Hon. O. T. Reeves, Judge, presiding.
    Mr. H. D. Spencer, for appellant.
    A sale by a -party not in possession of personalty will convey a good title to the vendee. Hodges v. Hurd, 47 Ill. 363.
    • A sale may be valid though the thing sold be not in the owner’s possession at the time of' the sale. Tome v. Dubois, 6 Wall. 548; The Sarah Ann, 2 Sum. 206; McIlvain v. Edgerton, 2 Rob. 422; Carkland v. Morrison, 33 Me. 190.
    The landlord had no right to take this property except by a lien, which he was bound to complete and perfect, and failing to complete and perfect the lien it is to be treated as having been void from the beginning. Storey v. Agnew, 2 Ill. App. 353. See also National Bank v. Thomas, 125 Mass. 278.
    Mr. Thomas F. Tipton, for appellee.
    At the time this property was mortgaged to- appellant, as claimed by him, it ivas held adversely, and John and William Bix had but a right of action, which was not the legal subject of transfer. McGoon v. Ankeny, 11 Ill. 558; Young v. Ferguson, 1 Litt. 298; Gardner v. Adams, 12 Wend. 297; O’Keefe v. Kellogg, 15 Ill. 347; Bowers v. Bodley, 4 Ill. App. 279; Stogdell v. Fugate, 2 A. K. Marsh, 136; Dunklin v. Wilkins, 5 Ala. 199.
   Wall, J.

The chattels in question belonged to Bix and were taken by Ator as bailiff of Stubblefield, who was landlord of Eix, upon a distress warrant for rent claimed to be due under the lease.

' While in the possession of Ator, or those holding under him, Iiix gave Hughes a chattel mortgage upon the property. This instrument was duly acknowledged and recorded according to law, and having become due by its terms, Hughes, after demand and refusal, brought the present action of replevin. The proceeding by distress was afterward abandoned. The replevin case was tried by the court without a jury, and the issues were found for defendant. This conclusion was based upon the proposition that when the chattel mortgage was executed the possession was held adversely and no title passed.

In the cases of McGoon v. Ankeny, 11 Ill. 560, and O’Keefe v. Kellogg, 15 Ill. 347, the property was held adversely, and the title was also claimed by those holding the adverse possession. Those cases announce the rule that the real owner of personal property can not sell his right or title to it while it is in the actual adverse possession of one who claims that title to it, the reason assigned being that it is against the policy of tlié law to allow a party to buy a law suit — a mere right of action in attempting to purchase personal property. Applying the rule to those cases it does not necessarily reach the case where property is held by a mere wrongdoer, not claiming title, nor the case of a bailee or lien holder whose claim is subordinate to and by virtue of the general property and right of the acknowledged owner.. As was said by Justice Story in the case of The Brig Sarah Ann, 2 Sumner, 211, “ There is no principle of law which establishes that a sale of personal property is void because such property was not in possession of the rightful owner at the time of the sale. The sale under such circumstances is not the sale of a right of action, but is a sale of the thing itself and good to pass the title against every person not holding the same under a bona fide title for a valuable consideration without notice, and a fortiori against a wrongdoer. This is cited approvingly in Tornes v. Dubois, 6 Wall. 548, and in 2 Wait’s Actions and Defenses, where it is said : “ Owners of personal property are not therefore obliged to treat every act of a third person who invades their right of possession or property as constituting a tortious conversion of the property, but they may, if they think proper, waive the tort» and in that state of case they may sell the property and convey a good title, and their vendor may upon demand and refusal maintain trover.”

In Hodges v. Hurd, 47 Ill. 363, five bales of cotton, while in the hands of the surveyor of the port, who had seized them to await an examination for a supposed violation of the regulations of the treasury, were sold by the owner to Hurd.

The vendor and vendee went to the surveyor and notified him of the sale, and that-he was to-deliver the cotton to the vendee, Hurd.

Afterward, -and while still -in possession of the smweyor, it Avas levied upon, under an attachment against the vendor, and Hurd then brought replevin against the officer. It was held the title passed to Hurd-. The court said that a mere notice to the bailee Avas sufficient to work a change of possession, and his consent is not material, as on notice he becomes keeper for the true OAvner by operation of law; that it Avould be unreasonable to allow the bailee of property to prevent the OAvner from making a Adalid sale by refusing to agree to surrender it to the pur-chaser after the termination of his OAvn right of possession; that the object of requiring a change of possession to accompany a sale of personal property is to give notice to the public, and AA'hen property in the custody of a bailee is sold, this object is as much accomplished by notifying the bailee of the sale and directing him to hold for the purchaser as it Avould be by his express promise thus to hold, and that the fact of sale Avorrld be learned by inquiring from the bailee in one case as avcII as the other'. Moav, in the case at bar the true and undisputed OAvner, Eix, Avas not in actual possession, but the possession was in the bailiff, not claiming an adverse title, but merely a lien by virtue of the title of Eix.. If Eix had not been the owner the possession would not have been taken by the bailiff, and he was really holding subordinate to Eix, confessing and depending upon his title.

Eix had an unquestioned right, subject only to the asserted lien. He might well sell that right, and vest the buyer with it.

The chattel mortgage was given pursuant to the statute providing for a retention of possession by the mortgagor until the debt matured or the happening of the condition upon which the mortgagee might obtain possession. Under such circumstances we hold the bailiff’s possession was the possession of the mortgagor, and when the right of the mortgagee matured he might demand possession subject to the lien; or if the lien was discharged, free from it. There is nothing in this to oppose the policy of the law. The mortgage was acknowledged and recorded as the law required. This is equiv. alent to a change of possession, and it gave notice to all, including the bailee, who became keeper for the true owner by operation of law. Ho agreement to that effect by the bailee need be shown, as the law will presume it. To hold otherwise would be to impose an unreasonable restraint, an unnecessary limit upon the dominion of one over his own property. Such dominion must include the right of disposal, though the possession may at the time be in another, by virtue of his general title, and should be upheld so long as the matter concerns only the vendor, vendee and bailee. This right is valuable, and to deny it would often work extreme hardship.

It is a general rule when the terms of sale are agreed on, and everything the seller has to do with the goods is complete, the sale is absolute as between the parties without actual payment or delivery, and thereupon the property in, and risk of accident to the goods will vest in the buyer. 2 Kent’s Comm. 492.

Herman, in his work on Chattel Mortgages, Sec. 37, states it as the law that property in the hands of an officer, under and by virtue of a writ of attachment or execution, is subject to a mortgage by the owner. When the mortgage is made while the property is so held under a levy against the actual owner, and made to one having notice of the levy to secure a prior debt, the mortgagee will be entitled to any surplus after satisfying the execution, the property passing to him subject to such Hen. So a mortgage will be valid, notwithstanding at the time of its execution a third person holds the property under the mortgager, and has a special property therein. Appleton .v. Bancroft, 10 Met. 231; McCalla v. Bullock, 2 Bibb, 288. See also Jones on Chattel Mortgages, Sec. 115, where a similar statement of the law will be found.

We are of opinion the plaintiff below was entitled to recover. The judgment will be reversed and the cause remanded.

Meversed and remanded.


author: Pleasants, P. J.

text:
    George W. Fanning and William F. Fanning v. Andrew Russell et al.

      Former Adjudication —New Matter — Vendor's Lien — Practice.
    The facts and law of a cause, as determined by this court and by the Supreme Court, in another suit between the same parties, can not be changed, after the cause has been remanded to the court below, by the agreement of a party, the default of others, new or additional evidence however taken, or any decree of the court without the consent of the parties.
    [Opinion filed August 26, 1886.]
    In error to the Circuit Court of Sangamon County; the Hon. James A. Creighton, Judge, presiding.
    Mr. George W. Smith, for plaintiffs in error.
    Messrs. Ketcham & Hatfield, for defendants in error.
   Pleasants, P. J.

A former decree in this case was reversed by this court upon appeal taken by these defendants in error, and the cause -remanded. 10 Ill. App. 304. The scope and result of other litigation over the same transactions may be seen in Russell v. Fanning, 2 Ill. App. 632, and 94 Ill. 386,

Inasmuch as no legal question of importance is presented by this record,-it is unnecessary to repeat the statement of its history and status up to the time of the last reversal, which fully appears in the opinions so reported.

When it was redocketed upon being last remanded the defendants in error obtained leave to amend their answer to the original bill of James M. Epler, and also their cross-bill, to which he had filed the plea of former adjudication. These amendments set forth that on the 14th of August, 1875, under a decree of foreclosure of the Jones mortgage, the master in chancery sold the E. -£• FT. W. \ of section 9, and the W. £ FT. E. i of section 8, to said James M. Epler, for $5,221; that on August 12, 1876, said Epler, being then the attorney of these plaintiffs in error, executed to them a certificate of redemption thereof, which was without a seal and not recorded until September 2d; that Andrew Russell, one of the complainants in said cross-bill, and defendants in error here, acting for all of them, on August 14,1876, without any knowledge of said pretended certificate of redemption, paid to the Sheriff of Morgan County, to redeem from said sale to Epler, the sum of $5,743.10, being the full amount required for 'that purpose, which was by said Sheriff, on the 16th of said month, paid over to and received by said Epler,-who still retains the-same; that the same day said Sheriff executed to said Andrew a proper cer • tificate of redemption, which was duly recorded, and in pursuance thereof, on FTovember 16th, his deed of conveyance of said lands; and that the pretended previous redemption by plaintiffs in error and Epier’s certificate thereof and their mortgage to him for the amount to be paid therefor, are fraudulent and void.

This was a new claim of title paramount to said E. |- FT. W. j- of section 9, which is part of the lands in controversy. Plaintiffs in error were defaulted as to the cross-bill so amended without any- rule upon them to .answer or other means to obtain it, and a final decree entered on the same day said amendments were filed.

This decree, which as to its material findings and provisions purports to be made by agreement of Epler and the Bussells, as well as upon the pleadings, master’s report of evidence and proofs taken in open court, and the default of plaintiffs in error, their mother and sisters, entirely disregards and reverses the finding, judgment and directions of this court upon remanding the cause, and the opinion of the Supreme Court upon the creditor’s bill in 94th III. above referred to. Without passing upon the equitable title to the notes held by Epler or the others outstanding, if any, of those given by plaintiffs in error for the lands in controversy, or enforcing the vendor’s lien to secure them in favor of defendants in error as prayed in their cross-bill, it dismisses the original bill, finds the facts and equities to be as stated and claimed in the cross-bill, sets aside, vacates and cancels the deed of Sampson Fanning to plaintiffs in error as fraudulent and void as against the judgment of defendants in error, declares said judgment, amounting with interest to over $13,000, a prior and valid lien upon the lands in question, and directs that unless the defendants in the cross-bill, who are the "plaintiffs in error here, their mother and their four sisters referred to, shall pay the same within ten days, the special master thereby appointed to execute said decree shall sell said lands to pay the same, with the usual provisions as to certificate thereof, and deed in default of redemption, and the unusual provision that if complainants in the cross-bill or any of them shall become the purchasers at such sale they shall be let into possession upon the approval of his report, subject only to the statutory right to redeem.

Pursuant to this decree the Special Master, on November 12, 1885, sold the lands in controversy, being 134 acres, to Andrew Bussell, one of the complainants in the cross-bill, for $65 per acre, or $8,710 in all.

The claim of title paramount to the E, \ N. W. Sec. 9, set up in the amendment to the cross-bill, was clearly inconsistent with the claim also therein made, that complainant’s judgment against Sampson Fanning was in equity a lien upon it, and the agreement recited in the decree to that effect, the acceptance of said decree, declaring it such a lien, and the purchase at the Master’s sale under the same, are a clear and absolute abandonment of such claim. The validity of the redemption by plaintiffs in error from the sale to Epler, and of his certificate thereof, and of that of defendants in error set up in their cross-bill, are therefore not here involved. The decree stands in favor of complainants in the cross-bill treated as a ci editor’s bill, against the deceased administratrix, and some but not all of the liens of the original debtor, regarding the land as -still in equity belonging to his estate and subject to said complainant’s judgment against him. This is manifestly and. directly contrary to the adjudication of this same question by the Supreme Court in another case between the same parties and by this court in this case, both of which are in fullforce. It is thereby established that these lands are not subject to said judgment, nor are these plaintiffs in error; and that they are personally liable upon their notes given for the land, except so far as that liability may have been extinguished by lawful means. The fact and law so established can not be changed by any agreement of Epler, or default of plaintiffs in error, or new or additional evidence, however taken, or any decree of the Circuit Court, without their consent.

The decree is therefore reversed and the cause again remanded.

Reversed cmd remanded.