text:
    Jonathan Gillett and others, appellants, vs. Joel Ellis, appellee.

      Appeal from Cook County Court of Common Pleas.

    Where goods, stowed on the main deck of a. propeller, were necessarily cast overboard, in a tempest, by the order of the master, to preserve the vessel and crew, held, that the owners of the vessel were not liable as common carriers. Held, also, that the owner of the goods was entitled to the benefit- of a general average.
    In adjusting a. general average, the owners of the vessel contribute according to the value of the vessel, at the port of destination, and the net amount of her earnings for the voyage. The owners of the cargo saved contribute according to tlieiolue of their property, at the port of delivery, deducting the freight due thereon. The price which the goods lost would have brought, at the port of deliveiy, had the same safely arrived, is to be ascertained, and the freight deducted; and after deducting his proportionate share of the loss, the owner is entitled to receive the balance, in the way of compensation for his loss.
    It is the duty of the master to have a general average made, and enforce payment <-f the portion due on account of the cargo, lie has a lien on the cargo, which he may detain until the average is paid. If he neglects his duty, in these respects, the owner of the goods lost may recover from the owners of the vessel whatever he might have received under a general average, fairly and honestly made. - *'
    This cause was heard at the February term, 1850, before Spring, Judge, and a jury. The facts of the case are fully stated in the opinion of the Court.
    A. Hoes and Williams & Butterfield, for appellants.
    G. Manniere and Scammon & McOagg, for appellee.
   Opinion by Treat, C. J.:

This was an action brought by Ellis against Gillett and others, owners of the propeller Cleveland, to recover the value of certain goods shipped on board the propeller, at Chicago, for Macinac, which were never delivered, hut were cast overboard and lost in a storm during the voyage. The declaration contained two counts against the defendants, as common carriers 5 also, a count for general average, and the common money counts. The defendants pleaded the general issue, and gave notice that the goods were shipped on the deck of the propeller, and were necessarily thrown overboard in a storm, for the safety of the vessel and crew.

It appeared on the trial, that the plaintiff, in April, 1848, at Chicago, shipped on hoard the propeller Cleveland, owned by the defendants, and bound for Buffalo, goods of the value of $ 158 76, to be delivered at Macinac. These goods were placed on the main deck, between the hatches of the propeller, and were necessarily thrown overboard and lost in a tempest, by the order of the master, for the preservation of the vessel, crew and cargo. Some other goods were cast overboard at the same time, but neither the quantity nor value was in evidence. Propellers are double-decked vessels, and goods placed between the main and hurricane decks are considered as safe as those stowed in the hold—are, in fact, regarded as under hatches. It is the general custom on the lakes, in reference to this class of vessels, to stow the cargo indiscriminately in the hold and on the main deck, as best suits the convenience of the master. In this respect, no distinction is made in the rates of carriage and insurance. No account of the property lost was ever taken by the master, nor was any general average made by him at the port of destination or elsewhere. The propeller was worth $ 15,000 ; but it did not appear what was the value of the cargo saved, or the earnings of the vessel for the voyage.

On this state of case, the jury returned a verdict in favor of the plaintiff, for $ 174 63. The Court refused to grant a new trial, to which the defendant excepted. The Court gave an instruction at the instance of the plaintiff, which is now complained of; but the record fails to show that an exception was taken at the time it was given, and it need not therefore be otherwise referred to or noticed. The defendants prosecuted an appeal from the judgment entered on the verdict.

The defendants were not liable as common carriers. The evidence showed a clear case of a jettison of the goods in question. They were cast overboard by the express directions of the master; and all of the witnesses concur in the opinion, that the sacrifice of the goods preserved the vessel and crew from destruction. The law is well settled, where goods are necessarily thrown overboard in a tempest, to preserve the vessel and crew, that it is a loss by inevitable accident, or, as it is usually termed, the act of God, which excuses the carrier. 2 Kent’s Com., 604; Story on Bailments, secs. 525 and 531; Angell on the Law of Carriers, sec. 215.

Are the defendants liable for a general average ? It is insisted, that the plaintiff cannot claim contribution, because his goods were stowed on the deck of the vessel. The general rule undoubtedly is, that the owner of goods which are placed on the deck of a ship, and are swept overboard by the action of the wind or waves, or cast into the sea by command of the master, in order to protect the vessel and crew, is not entitled to the benefit of a general average. The cargo on deck, from its situation, increases the difficulty of navigating the ship, and is more exposed to peril than that which is under cover; and, if swept away or cast overboard, the owner must bear the loss, without contribution from the owners of the vessel and the cargo under hatches. 3 Kent’s Com., 240; Smith vs. Wright, 1 Caine’s Rep., 44; Lenox vs. Insurance Co., 3 Johnson’s Cases, 178. But this case does not fall within the operation of this rule. Propellers are a class of vessels but recently introduced in the navigation of the lakes, to which, from the peculiarity of their construction, and the general usage respecting them, this general rule is not applicable. They are double-deckers, with two holds. By the general custom prevailing in reference to them, goods stowed on the main deck, or upper hold, are regarded as under hatches, and as safe as those stowed in the lower hold, or where the cargo in ordinary vessels is only considered as under cover. The master is allowed, by this general custom, to stow the cargo either in the hold, or on the main deck, at his convenience. No distinction is made in the price of transportation by the carrier, or in the rates of insurance by the underwriter. The cargo below and between decks is put on the same footing. This universal usage, resulting from the character of the vessel, must govern the rights and liabilities of the owners of the vessel and cargo. The owner of goods, which are stowed on the main deck of a propeller, and necessarily cast overboard by the direction of the master, to preserve the vessel and crew, is, therefore, entitled to the benefit of a general average, as much as the owner of goods that are stowed in the hold would be, under like circumstances.

Where the ship and cargo are saved by the voluntary destruction or abandonment of a portion of the cargo, the owners of the vessel and the residue of the cargo are bound to make contribution to the loser. The loss is incurred for the common benefit of all interested in the ship and cargo, and it ought to be borne equally by them, in the proportion of the value of the property saved. The goods sacrificed are considered as the price of the safety of the vessel, and the remaining cargo. Abbott on Shipping, 344; 3 Kent’s Com., 233. In the adjustment of a general average, the owners of the vessel contribute according to the value of the vessel, at the port of destination, and the net amount of her earnings for the voyage. The owners of the cargo saved contribute according to the value of their property, at the port of delivery, after deducting the freight due thereon. The price which the goods lost would have fetched, at the port of delivery, is likewise to be ascertained, and the amount of freight chargeable on them deducted, so that the owner will bear his proportionate share of the loss. In this way, and to this extent, is the owner of the goods sacrificed to be reimbursed for the loss he has sustained. 3 Kent’s Com., 242; Abbott on Shipping, 356—8. It is the duty of the master to make a general average, so that those whose property has been saved shall contribute rateably to the owner of the goods which were sacrificed for their common benefit. For the purpose of enforcing the payment of this general average, the master has a lien on the cargo, which he may detain until the average is paid. He cannot be compelled to deliver the cargo either to the owner or consignee, until the amount properly contributable in respect of it is paid, or secured to his satisfaction. 3 Kent’s Com., 244; Strong vs. Insurance Co., 11 Johnson, 324; United States vs. Wilson, 3 Sumner, 308; Scaif vs. Tobin, 3 Barnwell & Adolphus, 523; Simonds vs. White, 2 Barnwell & Cresswell, 805; Hallett vs. Bonsfield, 18 Vesey, 187. The plaintiff’s goods having been sacrificed for the common benefit of the owners of the vessel and the remaining portion of the cargo, it is very clear that he was entitled to contribution from them. It was the duty of the master to have caused a general average to be made, and enforced the payment of the part due from the ownei’s of the cargo. He was bound to adjust an average, and he had the right to detain the cargo until tire average was paid. It clearly results from this obligation of the master to settle an average, and this right to require payment from the consignees, that the defendants, for whom the master was acting, are responsible to the plaintiff. The latter has the right to recover from them whatever he might have received, under a general average, fairly and honestly made. Where the law imposes an obligation on a party, and confers upon him the power of enforcing it, as in this case, by a lien, it equally imposes a liability for the neglect of the obligation. But it may be said, that there was no tribunal on the lakes, before which an average could have been adjusted, that would bind the parties. Admit that this was so: it neither excused the master, nor exonerated the defendants. The latter were responsible to the plaintiff, in any event, for their proportionate share of the loss. The master, having all of the evidence within his control, should have had a general average settled, upon the principles before stated, by discreet and competent men, selected for that purpose. In most cases, the adjustment of an average, thus made, although not conclusive upon the parties interested, would be readily acquiesced in by them. And, in the absence of fraud, error and unfairness, it would become the proper basis for determining the rights of the parties in any subsequent litigation. The effect of the failure of the master to make an average, and insist on its payment before the delivery of the cargo, may be to embarrass, if not wholly defeat the plaintiff in the collection, except from the defendants, of the sum contributable on account of the cargo. The parties liable for its payment may be insolvent, or domicilled in other states, so that his remedy against them, if subsisting, is not worth pursuing. Reasonable diligence on the part of the master—in other words, the simple performance of his duty—would have avoided all difficulty in the matter. It would be wrong now to permit the defendants to defeat the plaintiff in the recovery of his just share of an average, because their agent, who was bound to make the average, failed to discharge that duty. There is, indeed, some uncertainty in the case, as to the true amount the plaintiff was entitled to receive, in the way of contribution; but this uncertainty results chiefly, if not entirely, from the negligence of the master. We cannot affirmatively say, that the jury have erred in their assessment of the damages. The plaintiff was clearly entitled to re- i cover from the defendants the price which his goods would have* brought at Macinac, if the same had safely arrived there, after deducting the freight thereon from the port of shipment, and his relative share of the loss occasioned by the jettison. We cannot say, that the verdict exceeded the value of the goods at the port of delivery, after making the proper deductions. This is emphatically one of those cases in which every reasonable presumption should be indulged to sustain a verdict. The master had all the means within his control of ascertaining the extent of the loss, and the amount of compensation the plaintiff was entitled to receive, and it was his duty to have preserved the evidence of these facts for the benefit of all concerned. Omitting to perform that duty, and thereby depriving the parties of the benefit of the evidence, the plaintiff might well be excused for not making precise proof of the extent of his claim.

The judgment of the Court below is affirmed, with costs.

Judgment affirmed.


source: Caselaw Access Project

author: Opinion by Mr. Justice Catón :

license: Public Domain

text:
    Patrick Cornelia, appellant, vs. Myron Ellis, appellee.

      Jlppeal from Kane.

    The defendant in execution may proceed against the officer who seizes upon his property exempted by the statute, either for treble the value or the single value of the property seized.
    A horse worth forty-five dollars, may be considered suitable to the condition in life of a miller, receiving thirty dollars per month as wages, who has an invalid family, requiring exercise in the open air. The suitableness of the property to the condition in life of the claimant, is a question of fact for the jury.
    Ellis brought an action before a justice of the peace against Cornelia, for $ 41 66, in trespass, for taking a horse and harness. Cornelia admitted the taking, and justified under an exetion in favor of Condey against Ellis. Ellis claimed the property to be exempt from seizure. The justice gave judgment in favor of Ellis for the whole amount claimed—$41 66. Cornelia appealed to the Circuit Court of Kane county. A trial was had in the Circuit Court; the cause having been submitted to the Court, T. L. Dickey, Judge, presiding, without the intervention of a jury. The Court found the damages at forty dollars, and entered a judgment accordingly. Cornelia appealed from the Circuit Court to this Court. The facts elicited in proof, on the trial of the Circuit Court, are sufficiently stated in the opinion. The plaintiff did not claim treble the value of the goods seized, but only the single value of the articles.
    Glover & Cook, for appellant.
    E. S. Leland, for appellee.
   Opinion by Mr. Justice Catón :

The first objection is, that the plaintiff below contented himself with claiming to recover simply the value of the property taken, instead of going for the penalty of three times its value, as he might have done, under the statute. We do not think the objection founded in reason or in law. It is very unreasonable in the party to complain that he was only made to pay the single value of the property, instead of the treble value; and as to the law of the case, that is settled against him, in Pace et al., vs. Vaughn, 1 Gilm., 30, where it was held, that the injured party might waive the penalty, and proceed in an ordinary action of trespass, for single damages. And this would seem to be reasonable. The statute exempts certain property from the operation of an execution j and, consequently, the execution could be no justification to the officer for taking the property thus exempted. If the officer took the property without authority, he was none the less the trespasser than if he were not an officer. We think the evidence warranted the Court in finding that this property was exempt from execution. At the time of the levy, the plaintiff below named over to the officer such property as he claimed to have, with the supposed value of each article, concluding with a watch, and told the constable, if he thought they were worth more than sixty dollars, he might take the watch, which he took out of his pocket. The constable said he did not know that it was worth more than sixty dollars, but he was indemnified, and he was going to take the horse. There was some evidence about a harness, but that was proved to have been applied upon the execution, by the agreement. There was also some evidence that he had, some time before, owned a wagon and some lawbooks, but the evidence does not show that he owned them at the time of the levy. We certainly do not feel warranted in deciding that this finding was erroneous, because it was against the evidence. The statute, after enumerating various species or articles of property, which shall be exempt from execution, proceeds, “ and sixty dollars’ worth of property, suitable to his or her condition or occupation in life, to be selected by the debtor.” And it is objected, that the Court erred in not finding that a horse, worth forty or forty-five dollars, was not suited to the condition and occupation in life” of a miller, who works out for thirty dollars a month, who has a sick wife, with four children—the attending physician advising that it would he for the invalid’s health, to ride out in pleasant weather. We agree with the Circuit Court, that the debtor ought not to be deprived of the benefit of the statute, for the reason assigned, that he had no occasion for the horse which he kept, or, in other words, we do not think it was not suited to his condition or occupation in life.” At any rate, that was a question for the jury, or, as in this case, for the Court, who was, by agreement, sitting in place of a jury, and whose finding is entitled to the same consideration.

We see no error in the record, and the judgment is affirmed, with costs. \

Judgment affirmed.


author: Opinion by Treat, C. J.:

text:
    John E. Mann, Rachel Blivin and Joseph Rice, appellants, vs. Charles H. Russell, appellee.

      Appeal from McHenry.

    The verdict should be manifestly against the weight of evidence, in order to demand any interference with it on the part of this Court.
    This Court will not look into affidavits in relation to the conduct of jurors, or examine the instructions given and refused, merely because the clerk has copied them into the transcript. They should be incorporated in the bill of exceptions.
    This was an action on the case, for obstructing a water course and causing the water to flow back upon the mill of appellee, brought by him against the appellants, which was heard before Henderson, Judge, and a jury, at April term, 1850, in the McHenry Circuit Court; and a verdict and judgment for appellant, for the sum of $ 835 20. The defendants in the Court below appealed to this Court, and assigned several errors. The bill of exceptions was so loosely taken as not to enable this Court to examine the errors assigned.
    Strode & Bush, for appellants.
    I. N. Arnold, for appellee.
   Opinion by Treat, C. J.:

Although numerous errors have been assigned in this case, but two questions are legitimately reserved on the record—one growing out of a decision rejecting an offer by the appellants to read in evidence, from a newspaper, an advertisement purporting to be signed by the appellee; the other arising on the refusal of the Court to grant a new tidal. As to the first question, it is sufficient to remark, that the appellants did not show, nor offer to show, that the advertisement emanated from the appellee. In order to a correct determination of the other question, we have carefully considered the evidence, and cannot sa.y that the verdict was manifestly against the weight of evidence. On the contrary, the testimony was conflicting and contradictory, to such a degree, that a finding either way would not have demanded any interference on the part of the Court. We are not at liberty to look into the affidavits relating to the conduct of the jurors, or the instructions given and refused by the Court. They are not a part of the record, merely because the clerk has copied them into the transcript. They should have been incorporated in the bill of exceptions. Besides, the case fails to show that any exceptions were taken to the decision of the Court in giving and refusing instructions. The other decisions, in admitting and excluding evidence, were not excepted to, and, consequently, are not subject to revision in this Court.

Affirm the judgment, with costs.

Judgment affirmed.


text:
    William A. Lake, appellant, vs. Simeon W. Morse and Benjamin Connelly, for the use of William Fordham, appellees.

      Jtppeal from Kane.

    It is a general rule, that Courts will not allow amendments which change the parties to the action, unlcts there is something in the record to amend by. This is more especially the rule in relation to amendments changing the plaintiffs in the action.
    This suit was originally commenced before a justice of the peace of Kane county, on the 2d day of October, 1849. The summons issued b]r the justice, commanded the constable to summon the defendant to answer the complaint of S. M. More and 38. Connelly, for the use of William Fordham. There was no appearance by the defendant before the justice. The justice rendered judgment against the-appellant in favor of S.-M..More and B. Connelly, for the use of William Fordham, for the sum of ninety dollars. The defendant appealed to the Circuit Court, and filed his appeal bond in.proper form, payable to S.-M. More and B. Connelly, for the use of Fordham. On the trial, in the Kane Circuit Court, March term, 1850, the plaintiffs and defendant appeared, waived a jury, and submitted the caus-e to the Court lor trial. The plaintiffs, to maintain the issue on their part, offered in evidence a note, in the words and figures following, to wit;

      “ July 8th, 1849.
    “ Thirty days from date, I promise to pay Morse &. Connelly nr bearer, eight seven dollars, and interest at six per cent., for value received. W. A. Lake.”
    Defendant objected-tb-the note, because it was not payable to plaintiffs, and showed' no- indebtedness from defendant to the plaintiffs. The pleintiffs-' moved the Court to amend the summons of the justice, the transcript, and the docket of the Circuit 'Court, by inserting, in Mem of the names of S. M. More and B. Connelly, the names of Simeon W. Morse and Benjamin Connelly. The Court allowed the amendment. The defendant objected thereto, and the original summons, the transcript of the justice, and the record of the Circuit Court, were severally .amended, by striking out the names of S. M. More and B. Connelly, wherever the same appeared, and inserting in lieu thereof Simeon W. Morse and Benjamin Connelly. The defendant thereupon refused to make any further appearance : whereupon the Court proceeded to try the cause without a jury; and the plaintiff proved that Simeon W. Morse and Benjamin Connelly, were,' at the time of the date of the note aforesaid, and still are partners, under the name and style of Morse & Connelly. The-note was read in evidence. This was all the evidence. The Court, T. L. Dickey, Judge, found for the plaintiffs $ 91 35. Plaintiffs then remitted $11 48. Defendant then moved in arrest of judgment. Motion overruled. The assignment of errors questions the correctness of the decision, in allowing the amendment to the papers, so as to substitute new parties plaintiffs ; and second, in trying the cause, after substitution, without a jury—the defendant not appearing.

      Glover & Cook, for appellant.
    E. S. Leland, for appellees.
   Opinion by Treat, C. J.:

In our opinion, the Circuit Court erred in allowing the amendment. It was, in fact, changing the parties to the action, without anything appearing in the case to justify it. Amendments are always allowed, where there is anything to amend by, and injustice will not result to the other party. This was not the case of a mistake or misprision, which was within the provisions of the statute of amendments and jeofails. The common law did not permit amendments of this character, and we have no statute that authorizes them to be made. The general rule seems to be well established, that Courts will not allow amendments to be made, which change the parties to the action, unless there is something in the record to authorize the amendment. And especially is this the rule in relation to amendments that change the plaintiffs in the action. The following authorities are direct to the point, that it is not competent to change the names of the plaintiffs, unless there is something to amend by—something in the record to show that what is sought by the amendment was originally designed, but has been omitted by mistake or misprision. Willink vs. Renwick, 22 Wendell, 608; Peck vs. Sill, 3 Connecticut, 157; Albers vs. Whitney, 1 Story’s Rep., 310; Wilson vs. Wallace, 8 Sargeant and Rawle, 53; Chamberlain vs. Hite, 5 Watts, 373. In the case of Maxcy vs. Padfield, 1 Scammon, 590, it was decided that the Circuit Court could not amend the papers, in an appeal from the judgment of a justice of the peace, by striking out the name of one of the defendants in the Court below. If a mistake has been made in the names of the plaintiffs, and there is nothing in the record to authorize its correction, the only course is to dismiss the suit, and commence a fresh action. It would, perhaps, be well that Courts should possess the power to allow amendments in all cases, where justice would be promoted thereby; but it cannot be assumed without the authority of statute. The case of Brace vs. Benson, 10 Wendell, 213, is not in point. In that case, the Christian name of one of the plaintiffs was allowed to he changed, so as to conform to a written request for process, delivered to the justice before the process was issued. There was something to amend by. Nor is the case of Shirtliff vs. The People, 2 Scammon, 7, in point. In that case, the original process clearly authorized the amendment.

The judgment must be reversed, with costs.

Judgment reversed.


text:
    Warren H. Griswold, for the use of Alphonzo Whipple, plaintiffin error, vs. Joseph M’Millan, defendant in error.

      Error to Du Page.

    If an action is brought in the name of the payee, upon a note given to a party who has been declared a bankrupt, under the law of Congress, of 1841, even though brought for the use of another, it will be defeated, if the note was given anterior to the filing of his petition for a discharge.
    Upon an affidavit for a continuance of the cause, owing to the absence of the record of the proceedings in bankruptcy, it will be presumed that the record was sufficient, if the affidavit states that it was properly certified.
    This was an action brought before a justice of the peace, upon a promissory note, given by the appellee to Griswold, or bearer, for $ 22 07, dated Lodi, February 4th, 1834. The appellant in this Court was defeated before the justice, and appealed to the Circuit Court of Du Page county. In the Circuit Court, a motion was made for a continuance of the cause, upon the ground that a transcript of the discharge of Griswold in bankruptcy, which had been allowed by the District Court .of the United States for the western district of New York, had been lost. The affidavits stated that a certified copy of the proceedings had been obtained, &c. The appellant, plaintiff in the suit, admitted the affidavits, and went to trial. He did not offer any other evidence than the note, in support of his action. The Court, J. B. Thomas, Justice, presiding, dismissed the action, and gave the defendant a judgment for costs. The appellant in the Circuit Court appealed to this Court.
    R. Y. M. Croes, for appellant.
    Glover & Cook, for appellee.
   Opinion by Mr. Justice Catón :

The suit was brought by the payee, for the use of Whipple, against the maker of a promissory note, dated at Lodi, in 1834. Previous to the commencement of the trial, the defendant applied for a continuance, and in support of his motion filed two affidavits, stating, in substance, that he had a copy of a record, duly certified, from the District Court of the United States, for the western district of New York, from which it appeared, that under the bankrupt law of 1841, the plaintiff had filed his petition in bankruptcy, and was duly declared a bankrupt by that Court, and discharged from his debts. The absence of the record was accounted for, and in order to avoid a continuance, the plaintiff admitted the truth of the statements in the affidavits. The Circuit Court held that the facts thus admitted constituted a defence to the action, and we think properly. In the case of Talcott vs. Dudley, 4 Scam., 435, this Court said, “that by a decree of bankruptcy the assignee succeeded immediately to all the rights and interests of the bankrupt, to just the same extent that the bankrupt himself had them, subject to and affected by all the equities, liens and incumbrances existing against them in the hands of the bankrupt.” And he not only succeeds to all his rights, but also to the legal title to those rights. By the operation of the bankrupt law, and of the decree, the assignee became vested with the legal title to this note as effectually as he could have been by an indorsement by the payee. But it was suggested upon the argument that this note may actually have been bona fide passed to Whipple, before the bankruptcy, and was neglected to be indorsed; but in the absence of proof, this suggestion is entitled to no more consideration than another, that the bankrupt may have forgotten to pass the note over to his assignee, or to schedule it, and is now trying to collect it for his own benefit. If Whipple had an equitable interest in the note, at the time of the bankruptcy, there is no doubt the law would protect that interest in some way; but in the absence of all proof, the presumption of law is, that the equitable interest is united with and follows the legal title; and there is nothing to destroy that legal presumption here.

There was a preliminary objection taken to the sufficiency of the affidavits, for the reason that they do not state that the certified copy was under the seal of the Court. The statement in Farnsworth’s affidavit is, that it was “properly certified to.” That is sufficient. It could not have been properly certified, unless it contained every requisite to give it authenticity.1

The judgment of the Circuit Court is affirmed, with costs.

Judgment affirmed.


text:
    The Trustees of the Illinois and Michigan Canal, appellants, vs. Elizabeth Dewes and others, appellees.

      Appeal from Cook.

    The Legislature, in 1887, authorized the canal commissioners to construct a canal basin at the confluence of the two branches of the Chicago river, and directed them to appropriate block fourteen, in Chicago, for the purpose, and to permit the owners thereof to receive block seven—the property of the canal—in payment, at its appraised value. In 1843, an act was passed, granting the canal and. canal property to trustees, who were required to proceed and complete the canal, and sell the canal lands and lots. In March, 1845, another act was passed, directing the trustees to proceed forthwith and perfect the appropriation of block fourteen, and the appraisal and exchange of block seven, as required by the act of 1837. In June, 1S45, the canal and the property belonging to it, passed into the hands of the trustees. They refused to appropriate block fourteen, and advertised block seven for sale. Held, that the owners of block fourteen could not, by bill in equity, compel the trustees to take that block, for the purposes of the canal, and have block seven appraised and exchanged therefor.
    This cause was heard at the May term, 1850, of the Cook Circuit Court, before H. T. Dickey, Judge. The facts of the case are sufficiently set forth in the opinion of the Court.
    J. M. Wilson and I. N. Arnold, for appellants.
    J. H. Collins and G. Goodrich, for appellees.
   Opinion by Treat, C. J.:

The seventh and eighth sections of “An act to provide for the sale of certain canal lands, and for other purposes,” approved July 21st, 1837, are as follows:

“ Sec. 7. The canal commissioners are authorized to enlarge the natural basin, at the confluence of the north and south branches of the Chicago river, so as to render the same as useful and convenient as possible; and block number seven, of the canal lots, in the city of Chicago, shall be reserved from sale, for the purpose of exchanging the same for block number fourteen, which will be required to be removed in the enlargement of the basin; and the said commissioners are hereby required to cause the aforesaid block number fourteen to be appropriated for the purpose aforesaid, and to proceed to obtain the title to the same in the manner provided by law for obtaining lands or materials for the use of the canal.

££ Sec. 8. When the board of appraisement shall appraise the said block fourteen, they shall also appraise the aforesaid block seven; and if the owners of block fourteen will take in exchange for the same block seven, at the appraisement thereof, the canal commissioners are authorized to make the exchange, taking from the said owners a sufficient conveyance for said block to the state, and giving to such owners a certificate of purchase for block seven, stating therein the facts of the transaction ; and if block seven shall be appraised to more than block fourteen, the said owners shall be required to pay the difference in a reasonable time, to be fixed by the canal commissioners; and upon such payment being made, the said owners shall be entitled to a patent for the same; but if the said block shall be valued to less than block fourteen, or the same sum, they shall be entitled to a patent, upon executing the conveyance aforesaid. If the difference in value shall be in favor of the said owners, the canal commissioners shall pay the same out of the canal fund; but if no such arrangement is made as herein contemplated, the aforesaid blockfourteen shall, nevertheless, be obtained and appropriated, as herein provided, and block number seven shall be subject to sale as other lots in Chicago now are.”

By the provisions of the ££ Act to provide for the completion of the Illinois and Michigan canal, and for the payment of the canal debt,” approved February 21st, 1843, the canal and all the unsold lands and lots belonging to the canal fund, were irrevocably granted to the trustees of the Illinois and Michigan canal, as security for the loan authorized by that act, for the purpose of completing the canal. The eighth section of the act declares, that the board of trustees ££ shall possess all the powers and perform all the duties conferred upon the board of commissioners of the Illinois and Michigan canal.” The thirteenth section provides, that the said board of trustees, when appointed, are hereby authorized to take possession of the said canal, property and assets, granted to them by this act, and proceed to complete the same. They are hereby authorized to make such changes and alterations of the original plan of said canal as they may deem advisable, without reducing its present capacity, or materially changing its present location, having due regard to economy, permanency of the work, and an adequate supply of water for all seasons.55 By the same section, the trustees are required, after the completion of the canal, to sell all the lands, lots and water power granted to them by the act. The eighteenth section repeals so much of the former laws, in relation to the canal, as conflicts with the provisions of this act.

The seventh section of the “Act to drain a marsh in Gross Point precinct, in Cook county, and for other purposes,55 approved March 3d, 1845, is as follows : “ The seventh section of ‘An act to provide for the sale of certain canal lands, and for other purposes,5 approved July twenty-first, one thousand eight hundred and thirty-seven, is hereby so amended as to authorize the trustees, who may be appointed in pursuance of an act to provide for the completion of the Illinois and Michigan canal, and the payment of the canal debt, approved February twenty-first, one thousand eight hundred and forty-three, to cause block number fifteen, in the original town of Chicago, to be appropriated, if they shall think proper, for the same purpose as is block fourteen of said city, by virtue of said first mentioned section. And the said commissioners or trustees shall proceed forthwith to perfect the exchange of block fourteen aforesaid, for block seven, as contemplated by the said act, to which this section is an amendment; and also, in like manner, under the provisions of said act, to obtain the title to sqid block fifteen.55

The canal property was conveyed to the trustees, on the 26th day of June, 1845.

In September, 1848, Dewes and others filed a bill in chancery against the trustees of the Illinois and Michigan canal, alleging, in substance, that they were the owners of block fourteen, referred to in the foregoing acts, and were ready and willing to exchange the same for block seven, as contemplated by those acts ; that the trustees had refused to comply with the provisions of said acts, and had advertised block seven for sale, with the design of disposing of the same. The bill prayed that the trustees might be enjoined from selling block seven, and compelled to cause blocks fourteen and seven to be appraised and exchanged, in the manner prescribed by the act of 1837.

The Court overruled a demurrer to the hill, and, on the failure of the defendants to answer, entered a decree against the trustees, in accordance with the prayer of the complainants. To reverse that decree, the trustees have prosecuted an appeal to this Court.

We are not aware of any principle of equity jurisprudence, upon which this bill can be sustained. This is not a suit to compel the specific execution of a contract; for no contract was ever made between the state and the complainants, respecting the lots in question. The complainants never made any proposition for the sale or exchange of the lots, that was acceded to on the part of the state. Nor have they accepted any proposition made to them by the state. There is not the slightest pretence for insisting that there has been any contract, express or implied, which a Court of Equity can he called on to enforce. The complainants have a cquired no subsisting interest, legal or equitable, in block seven. The complete title to that block is in the trustees. The complainants are still the absolute owners of block fourteen, with full power to dispose of it as they please. Their title has not been divested, either by their own voluntary act, or by virtue of any proceedings instituted for that purpose, by the state, or those charged with the prosecution and management of the canal. ■ They have not, in any manner, been disturbed in the enjoyment of their property, or prevented from improving or selling the same. It is true, the block may some day be taken for public purposes. And so may the property of any other individuals. But, until proceedings are had with the view of appropriating the block for the purposes of the canal, the complainants can have no just cause for complaint. It will then be in time for them to invoke the aid of the Courts for the protection of their rights, if the same are in danger of being invaded or disregarded. The block may never be appropriated. But, if it shall be, the complainants will be entitled to recover a just compensation-—a compensation that will embrace the full value of the ground, at the time it is taken, together with the improvements thereon, without reference to the time the same were erected.

The act of the 21st of July, 1837, was not an appropriation of block fourteen, but simply a declaration on the part of the Legislature, that it would be required in the construction of the canal basin, and a direction to the canal commissioners to have it condemned for the purposes of the canal. The act was altogether executory in its character. It contemplated the taking of the block at some future day. It vested no rights in the complainants. It neither divested their title, nor affected their existing rights. It was then, and still is, in the power of the Legislature, at least with the assent of the trustees, to repeal or modify the provisions of the act. The act conferred no authority on the complainants to appeal to a Court of Equity, to compel the commissioners to proceed and execute the will of the Legislature. The commissioners were responsible to the state, and not to the complainants, for any failure to discharge the duties imposed by that act. The state alone could compel them to comply with the requisitions of the law. The complainants had no such interest in the contemplated arrangement, as would authorize them to insist that the commissioners should carry it into effect. Even if the provisions of the acts of 1837 and 1845, are obligatory on the trustees, the case is in no respeet altered. The complainants have no greater rights against the trustees than they had against the commissioners.

Nor did those acts vest in the complainants any present interest in block seven, which gives them the right to insist that the canal basin shall be constructed, and the blocks exchanged. The most that they could possibly claim, under the provisions of those acts, would be the right, upon the appropriation of block fourteen, to receive block seven in payment at its appraised value. But that right has not attached. Their block has not been taken, and never may be. The basin has not been constructed, and perhaps never will be. Their claim to block seven was altogether contingent, depending entirely on the previous appropriation of block fourteen. The taking of the latter block was to be a precedent act. It was to be first appropriated for the purpose of constructing the canal basin, before the complainants could occupy a position to compel, if at all, an exchange of the property, as contemplated by the Legislature. Having no present interest in block seven, the complainants have no right to call upon a Court of Equity to interfere and prevent the sale. If the trustees have no discretion in the matter, and are proceeding in violation of their duties, the state alone can complain of their conduct. The law must he vindicated by the state, whose interests are affected, and whose directions are disregarded; and not by individuals, who may have a fancied or contingent, but not a real or subsisting interest in the question. It is purely a matter between the state and the trustees, to be settled and adjusted exclusively by them.

We have not considered it necessary to examine or discuss the question, whether the arrangement designed by the act of 1837 is binding on the trustees. It is enough that the complainants have not, in our opinion, showed themselves to be interested in its decision.

The decree of the Circuit Court will be reversed, with costs, and the bill dismissed.

Decree reversed.


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    William W. Pickering, plaintiff in error, vs. Fletcher Misner and William L. F. Jones, defendants in error.

      Error to Kendall.

    Phe statute, which allows the parties in trials commenced before justices of the peace to avail themselves of the oath of the adverse parties, is in derogation of the principles of the common law, and must be construed to embrace only such cases as are within both the letter and spirit of its provisions.
    If the party to whom the oath is referred declines to he sworn as a witness, or refuses to testify when sworn, the opposite party may then become a witness in his own behalf, and testify in relation to the matter in question. But if the party first called is sworn, and testifies in good faith, the object of the statute is answered; and the party claiming the benefit of tlie statutory provision, is not permitted to become a witness for himself.
    If a party to the suit is sworn, he is bound to testify fairly and fully, so far as he may be interrogated. If he manifests a disposition to conceal or withhold the truth, does not give explicit answers, or deprives the party calling him of the benefit of the facts within his knowledge, the Court may hold that he refuses to testify, and allow the other party to become a witness.
    In such a case, the bill of exceptions should state this as the reason for permitting the other party to become a witness, or set forth all the facts, so that this Court may determine whether the decision of the Circuit Court was correct.
    This was an appeal from a judgment rendered by a justice of the peace, to the Circuit Court of Kendall county. The cause was heard in the Circuit Court, before Catón, Justice, who rendered a judgment for the present defendants, for $ 38 78. The points presented by the assignment of errors, are stated in the opinion of the Court, which contains all the facts necessary to a full understanding of the case. The defendant below brings the cause to this Court.
    S. W. Randall, for plaintiff in error.
    T. L. Dickey, for defendants in error.
   Opinion by Treat, C. J.:

This case originated before a justice of the peace, and was taken by appeal to the Circuit Court. On the trial in the latter Court, one of the plaintiffs made oath that he knew of no witness, except the defendant or himself, by whom he could prove that a certain note, made by the defendant to the plaintiffs, was credited to the defendant in a settlement had between them. The defendant was thereupon sworn as a witness, and testified that he did not recollect that the amount of the note was credited to him in the settlement. The Court then, against the objection of the defendant, allowed one of the plaintiffs to be sworn as a witness, who testified that the defendant was credited with the note in the settlement between them. He was also permitted to testify respecting another matter than the one mentioned in the preliminary oath. That decision is assigned for error. The statute provides, that “in all trials before justices of.the peace, when either party may not have a witness or other legal testimony, to establish his or her demand, discount or set-off, the party claiming such demand, discount or set-off, may be permitted to prove the same by the testimony of the adverse party ; and if such adverse party shall not appear at the time of trial, or shall refuse to be sworn, or to testify, then the party claiming the same shall be permitted to prove his or her demand, discount or set-off, by his or her own oath; Provided, that such party claiming the benefit of his own oath, or that of the adverse party, shall first make oath that he has a demand, discount or set-off, in said cause, and that he knows of no witness by whom he can prove the same, except by his own oath or that of the adverse party; Provided, further, that no person shall be allowed to prove his demand, discount or set-off, unless the adverse party be present, or shall have been notified thereof; and for which purpose, the justice may continue such cause for such time as may be necessary.55 R. S., cb. 59, sec. 39. It further declares that the parties shall have the benefit of the foregoing section, in the trial of appeals in the Circuit Court. R. S., ch. 59, sec. 69. This chapter is in derogation of the principles of the common law, and must be construed to embrace only such cases as are within both the letter and spirit of its provisions. It enables a party making the preliminary oath, to call upon his adversary to testify as a witness respecting the particular matter in issue between them j and in case his adversary declines to be sworn as a witness, or if sworn as such, refuses to give testimony, he may become a witness in his own behalf, and testify in relation to the matter in question. If the adverse party submits to bo sworn and testify, the object of the statute is answered, whether the testimony he gives may be beneficial to the other party or not. The party claiming the benefit of the statutory provision is not permitted to become a witness for himself, unless his adversary declines to be sworn, or if sworn, refuses to give testimony as a witness. If, however, the adverse party elects to become a witness, he is bound to testify fairly and fully, so far as he may be interrogated. If he manifests a disposition to conceal or withhold the truth, or intentionally avoids giving direct and explicit answers to the inquiries of the other party, and thereby deprives such party of the benefit of the facts within his knowledge, the Court may properly hold, within the intent of the statute, that he refuses to testify, and allow the other party to become a witness. In such case, the bill of exceptions should state this as the reason for permitting the other party to become a witness, or the whole of the facts should be set forth, so that this Court may determine whether the decision was correct. In the present case, the defendant submitted to be sworn as a witness, and the bill of exceptions does not authorize the conclusion that he refused to state any of the facts within his knowledge relating to the transaction in question. In our opinion, the Court erred in allowing the plaintiff to be introduced as a witness. If properly admitted as a witness, there was error in permitting him to testify about a matter not referred to in the preliminary oath.

The judgment of the Circuit Court is reversed, with costs, and the cause remanded for further proceedings.

Judgment reversed.


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    William H. W. Cushman, appellant, vs. Joseph O. Glover and Burton C. Cook, appellees.

      Appeal from La Salle.

    If two agents are appointed, by separate instruments, with equal authority to act for the principal, the right is not exclusive in either, but is equivalent in both, and any act done by either, within the scope of his authority, will conclude the other.
    A second power to one of two agents, unless such intention is expressed in the subsequent power, does not take away the authority of the other. And where one disposed of a promissory note, the property of his principal, the other was precluded from making any different disposition thereof. And the agent having the note in his possession, was bound to relinquish it to the person who had purchased from the other agent.
    This was an action of trover, for a promissory note, commenced by appellees against appellant, before a justice of the peace. The note was executed by J. V. A. Hoes to the appellees, for $ 75, payable 27th February, 1850. The justice rendered a judgment in favor of the appellees, and the appellant took the case to'the Circuit Court. The cause was heard before T. L. Dickey, Judge, and a jury, at May term, 1850, when the appellees again obtained judgment for the amount of the note and costs 5 thereupon the cause was brought to this Court by Cushman, the appellant. On the trial in the Circuit Court, it appeared that one Isaac H. Fredenburgh, on the 8th of March, 1849, while preparing to go to California, gave the appellant a power of attorney, for him, and in his name, and for his use and benefit, to ask, demand, sue for, recover and receive, from the county authorities of La Salle county, the sum of $ 500, received by them of one William Simmons, about the month of June, A. D. 1837, growing out of a ferry privilege across Fox and Illinois rivers, with interest thereon, or from any other persons liable to pay the same; and to use and take all such means as the agent might think advisable, in law or otherwise, to recover the same ; or to compound or arbitrate the same; and to do all lawful acts, &c., and grant all releases, &c., in relation thereto, promising to ratify, &c. That said Isaac H. Fredenburgh, on the 3d day of April, 1849, gave to John Fredenburgh a power of attorney, for him, and in his name, &c., for his use, &c., to ask, demand, sue for, recover and receive, of any and all persons, all such sums of money, debts, &c., as are due and owing to him, I. H. Fredenburgh, and to have, use and take all lawful means to recover the same, &c.; also, to make all contracts and agreements relative to the ferry in the town of Ottawa, belonging to him, which his said attorney might think necessary, and to do all things to protect his rights, &e., in the said ferry, and generally to do all acts relative to his personal property, which he might or could do, if he were personally present. That shortly afterwards said I. H. Fredenburgh left for California, where he now is. That for six months prior to the making of said powers, the appellees, attorneys at law, were acting for him, in trying to secure and collect the said claim, in relation to said ferry, and that after he left they still conducted the business ; that after much trouble, they compounded this claim, by taking the note in controversy, declaring to the maker of it that twenty-five dollars of it belonged to them, as a fee for their services, and that the residue belonged to I. H. Fredenburgh, and that said note was given to the said appellees. That in the month of February, 1850, said note was in the possession of the appellees. It was proved-that the note in controversy was worth $75. Defendant waived proof of a demand upon him for the note, before the action was commenced. Appellant also offered in proof a power of attorney from I. H. Fredenburgh, executed in California, dated 29th November, 1849, giving him full general power to act as his agent, &e. It was further proved, that John Fredenburgh, on the 27th of February, 1850, executed to appellees an assignment and transfer of said note, for a valuable consideration.
    E. S. Leland, for appellant.
    The Appellees, for themselves.
   Opinion by Treat, C. J.:

The plaintiffs were clearly entitled to recover the amount of the note from the defendant. By the purchase from John Fredenburgh, they acquired the whole interest in the note, both legal and equitable. The general power of attorney to John Fredenburgh fully authorized him to dispose of the note to the plaintiffs. It is true, that power of attorney did not revoke the authority previously conferred on the defendant. Both were then the agents of Isaac H. Fredenburgh, with full authority to act for him respecting the particular subject matter. The authority was no longer exclusive in the defendant, but was equivalent in both, and subject to be exercised by either. Any act done by either of them, within the scope of his authority, would conclude the other. Nor did the second power of attorney to the defendant take away the authority of John Fredenburgh. It conferred no new or additional authority on the defendant, in relation to this particular transaction. Both were still the agents of Isaac H. Fredenburgh, with full power to act in this matter. Each was authorized, ;by the terms of his instructions, to make such disposition of the note as he should deem best for the interests of his principal. It appears that John Fredenburgh sold the note to the plaintiffs, and, as the sale was binding on the principal, the defendant was thereby precluded from making any other disposition of it. The power of both over the note was then exhausted. Their principal had no longer any interest in the note, to be protected or disposed of by them. The sale was as binding on the defendant, as if it had been effected by him. There was nothing left for him to do, but to deliver the note to the plaintiffs. Admitting that he first acquired the possession of the note, with the assent of the plaintiffs—and the presumption from the whole case is that he did—he was, nevertheless, bound 'to restore it on the purchase by them. It was not shown that he had acquired any interest in the note, or done any act respecting it, which would have justified him in retaining it, as against Isaac H. Fredenburgh. If he could not lawfully withhold it from his principal, he certainly could not from the plaintiffs, who had succeeded to all of the rights of the principal.

The judgment of the Circuit Court will be affirmed, with costs.

Judgment affirmed.


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    The Trustees of Schools, plaintiffs in error, vs. John S. Wright et al., defendants in error.

      Error to La Salle.

    An implied lien on land, for the payment of the purchase money, must, as against third persons, he enforced hy the vendor, within a reasonable time, after his right to do so attaches.
    In 1835, the school commissioner sold lands to A, and received his notes, with B and 0 as sureties, for the payment of the price, and gave him a certificate of purchase, hut failed to take a mortgage on the premises, as required by statute. In 1830, A sold the land to I) and, in 1837, B sold the same to E, E and G. Patents were issued to A, in 1S38. In 1845, the trustees of schools filed a hill in chancery, to subject the land to sale for the payment of the original purchase money, which became due in 1838. Held, that the application came too late.
    This cause was heard and decided hy Catón, Judge, at the April term, 1847. The facts of the case will appear in the opinion of the Court.
    A. Hoes and H. G. Cotton, for the plaintiffs in error,
    J. H. Collins, for the defendants in error.
   Opinion by Treat, C. J.:

This was a bill in chancery, filed in October, 1845, by the trustees of schools in township thirty-three north, of range five east, in La Salle county, against John T. Temple, William Saltonstall, Royal Stewart, Grant Goodrich, John S. Wright, Amasa Wright, Hosea Webster and Frederick Dealing. The bill alleged, that on the first of May, 1835, the school commissioner of La Salle county, in pursuance of the petition of the inhabitants of the township, sold section sixteen at public auction, on a credit of one, two and three years; and that Temple became the purchaser of five hundred and twenty acres thereof, for the aggregate sum of $ 3,104 40; that, on the same day. Temple made to the commissioner three promissory notes, with Stewart and Goodrich as sureties, for $ 1,034 80 each, payable, respectively, in one, two and three years from date; and the commissioner executed and delivered to Temple a certificate of purchase, in these words : County of La Salle, 1st of May, 1835. This is to certify, that Dr. J. T. Temple did, on the 1st of May, 1835, purchase at public auction, lots one, two, three, four, six, seven, eight, ten, eleven and twelve, being part of section sixteen, in township thirty-three north, of range five east of the third principal meridian, and containing five hundred and twenty acres, for the sum of $ 8,104 40, for which said Temple has given his obligations, in compliance with the advertisement. David Letts, commissioner of school lands for La Salle county.” That, on the 9th of June, 1835, the commissioner reported an account of the sales to the County Commissioners’ Court, in which he stated generally, that he had received the notes of the purchasers, with personal security; that no mortgage was ever executed by Temple, to secure the payment of the purchase money; that the notes were handed over to the treasurer of the township, and are still in his hands, as the property of the township, the greater portion thereof remaining unpaid; that, in May, 1838, patents issued to Temple for the lands, which are in the possession of the treasurer of the township; that there are no improvements on the land, nor has the same been occupied since the sale; that, in September, 1840, Temple conveyed lots one, two, three, six, seven and eight, to John S. Wright, who, prior to the execution of the deed, was fully informed that the purchase money was unpaid; that, in October, 1837, said Wright was largely indebted to Amasa Wright, Webster and Deming, and, for the purpose of securing them, conveyed to each of them one undivided third part of said lots; that Temple was after-wards declared a bankrupt, and discharged from the payment of his debts ; that Saltonstall was the assignee in bankruptcy, and that Stewart and Goodrich are wholly insolvent; that the treasurer of the township has often demanded payment of the purchase money of John S. Wright and his grantees. The bill prays that the lots may he charged with the payment of the purchase money, and sold for the satisfaction thereof.

John S. Wright, in his answer, admits the sale of the land to Temple, the execution of the certificate and notes, the making of the report, and the issuing of the patents, as charged in the bill; admits that Temple conveyed the lots to him, in 1840, but insists that he purchased the same in good faith, and paid therefor in full, in May, 1836, without any knowledge, notice or information that the purchase money was unpaid; denies that he had any knowledge that the purchase money was unpaid, until some time after he had bought and paid for the lots, when he heard that the notes were unpaid, but insists that the makers were then responsible, and that the notes might have been collected by proper diligence; admits that, in the winter of 1838 539, the treasurer of the township called on him and demanded payment of some portion of the notes ; admits the conveyance of the lots to his co-defendants, but denies that the same was made to secure the payment of a preexisting indebtedness; alle= ges that the sale to them was absolute, and in consideration of $ 1,350, fully paid by them to him, at and before the sale.

Amasa Wright, Webster and Deming, in a joint answer, admit the sale to Temple, the execution of the certificate and notes, the making of the report, the issuing of the patents, the conveyance to John S. Wright, and the conveyance by him to them, as charged in the bill; they deny that the lots were conveyed to them to secure the payment of a preexisting indebtedness, but insist that the sale was absolute, and in consideration of $1,350, fully paid by them before and at the time of the conveyance; they deny that at the time of the conveyance to them, they had any knowledge, notice or information that the purchase money was unpaid, and insist that they were bona fide purchasers, for a full consideration.

Replications were filed to the answers. The bill was taken for confessed against Temple, Saltonstall, Stewart and Goodrich. No proof was taken by any of the parties. On the hearing, the Court decreed that Stewart and Goodrich pay to the complainants $ 3,650 29—the amount due on the notes ; that Saltonstall pay the same pro rata out of the assets of Temple in his hands ; that lots four, ten, eleven and twelve, be sold, to satisfy the amount found due; and that so much of the bill as claims relief against the remaining lots be dismissed. To reverse this part of the decree, the complainants prosecuted a writ of error.

The issuing of the patents vested the legal title to the lots in Temple. The state thereby parted with the title—the delivery of the patents to the school commissioner, from whom the treasurer of the township must have received them, being a valid delivery to the purchaser. The People vs. The Auditor, 2 Scammon, 567. The subsequent conveyance by Temple to John S. Wright inured to the benefit of the grantees of the latter. Rev. Laws of 1833, page 131, see. 7.

If this was an ordinary case of the sale of land, there would not be the slightest pretence for insisting that the complainants had any lien on the lots, for the payment of the purchase money. The payment of the price was secured hy the joint notes of the purchaser and two other persons. The principle is now too well established to require discussion, that where the vendor parts with the legal estate and takes security, other than the personal liability of the vendee, for the payment of the purchase money, he thereby waives his lien on the land. The taking of the obligation of the purchaser, secured by a third person, amounts to an extinguishment of any implied lien on the land. In such case, the seller is considered as relying on the security taken, and not on the land, for the payment of the consideration. See Conover vs. Warren, 1 Gilman, 498, and the cases there cited. But, it is insisted, that this case is not within the operation of this principle. It is contended, inasmuch as the school commissioner was required by statute to take a mortgage on the premises, to secure the payment of the purchase money, that he could not, by omitting to perform that duty, waive the lien; and, consequently, that the purchaser and his grantees, being chargeable with a knowledge of the law, could not acquire an indefeasible estate in the land, until the consideration should be fully paid. The act of January 12th, 1833, under which the sale was made, provided, that whenever the inhabitants of a township should represent to the school commissioner that their interest would be promoted by selling the school section on a credit, it should be the duty of the commissioner to sell said lands, on a credit of one, two and three years, the purchaser giving a mortgage on the lands, and good personal security, for the payment of the purchase money.”

Whether it was in the power of the school commissioner to dispense with this requisition of the statute, so as to transfer the land to the purchaser divested of any lien for the payment of the purchase money, is a question not now necessary to be determined, as we are inclined to take another view of the case, which, if correct, fully disposes of it. Assuming that the complainants once had the right to resort directly to the land, for the payment of the purchase money, we are of the opinion that the application to enforce the right comes too late. The whole of the purchase money became due in May, 1838, and no steps were taken to coerce its payment, by proceedings to subject the land to sale, until October, 1845—more than seven years intervening between tlie accruing of the right, and the resort to any remedy for the purpose of enforcing it. These secret liens on real estate, because generally in point of fact—however it may be in legal contemplation—unknown to the parties to be affected by them, are often productive of much injustice, and ought not to be encouraged. Courts should not lend their aid to enforce them, as against third persons, except in clear cases, and where creditors have not been guilty of any laches in asserting them. If a vendor fails to institute proceedings to enforce an implied lien, within a reasonable time after his right to do so attaches, the presumption should be indulged, that he relied exclusively on his other remedies to recover the purchase money, and therefore abandoned or waived his lien on the land. After such a lapse of time, as in this case, parties, who become interested in the land subsequent to the original sale, have a right to conclude, and act accordingly, that the vendor was either satisfied with his other security, or had actually received payment. They ought not, after such a length of time has elapsed, without any effort on the part of the vendor to charge the land with the payment of the purchase money, to be molested or disturbed in the enjoyment of property honestly acquired, and for which they have paid a full consideration. There must be a time when they may repose with some decree of security upon their titles. The most serious consequences would result to creditors and purchasers, if a vendor was to be permitted, after remaining passive for years, to set up and enforce a lien, which had its origin in a mere presumption of the law, and not in virtue of any contract between the parties to the sale. The whole doctrine of implied liens is of very questionable policy. As respects third persons, it ought not in any wise to be extended or enlarged. If vendors are not vigilant in the assertion of rights of this character, they do not deserve, nor should they receive any favor or assistance at the hands of the Courts. There is no good reason for allowing them the same period of time in which to enforce an implied lien, that the law gives them in the case of liens created by the express act of the parties. The two classes of liens ought not to be put on the same footing. There is a material distinction between them, and there is a manifest propriety in recognizing the distinction in enforcing them. The one is implied by the law, and rests in parol, and about the existence and extent of which parties may well be mistaken; the other originates in positive contract, is evidenced by writing, and free from all doubt and uncertainty. No possible injury can result to the vendor of real estate, in requiring him to enforce an implied lien within a reasonable time. He has the right on the sale of the land, to exact security, respecting which no question can arise. If he neglects to do this, and instead thereof relies upon an implied lien, from the very nature of which, creditors and purchasers are liable to be surprised and deceived, he cannot complain if the Courts refuse him any assistance in enforcing it, after a reasonable time has been allowed him to assert his rights. He is the cause of the difficulty in the first instance, and he should not be permitted to increase it, by remaining silent and inactive, and thereby lulling others into a false security. In the present case, aside from the legal presumption,'it is very evident that the parties to the original sale never intended to reserve any lien on the land, to secure the payment of the purchase money ; and it is equally evident, that John S. Wright and the present owners believed that they were acquiring an indefeasible estate in the land. We can hardly believe that they would have purchased the land, and made full payment therefor, if they had for one moment supposed the original purchase money was a charge on the land. There is certainly no equity in compelling them, at this late day, to pay off that purchase money, in order to save the land. The fault is in the complainants, in sleeping on their rights. If they had pursued their remedy against the land in due time, Wright and his grantees might have reimbursed themselves for the loss of the estate, by proceeding against Temple for a breach of the covenants contained in his deed. It may be, that he was then solvent, and fully able to pay the notes, or respond to them in damages on his covenant of warranty. But they would now be without remedy against him, in consequence of his discharge from liability by the decree in bankruptcy. If they were now to pay off and discharge the claim, a substitution to the rights of the complainants, if allowable, would not avail them, for the sureties to the notes are irresponsible. But this is not as strong a case as many others that would arise, if the principle was to be admitted, that a vendor might pursue his remedy for the enforcement of an implied lien, at any time within twenty years—the time when the law raises the presumption that a mortgage has been paid 3 and the vendor must be allowed that length of time to prosecute his remedy, if no distinction is to be made between express and implied liens. The rule to be laid down must be general, and applicable to all cases depending on .the same principles, although differing in many of the circumstances surrounding them. Cases would be very likely to arise, where parties had purchased lands and paid a full and adequate consideration, with notice that the purchase money of a prior sale was unpaid, but without any actual knowledge that a lien was reserved or relied on for its payment, and who had gone on in good faith and made valuable improvements, which, together with the lands, would be swept away from them at the end of twelve or fifteen years, by the first vendor asserting a lien, of which he, although residing in the immediate vicinity and cognizant of all the facts, had hitherto remained profoundly silent. It is not a sufficient answer to say, that the purchasers were bound to know the law, and it was their own fault if they purchased and improved the lands, under such circumstances. In my judgment, it would be far better to overrule the doctrine of implied liens altogether, than to suffer such injustice to be perpetrated, and that, too, through the medium of Courts of Equity, which, it is said, delight in justice, and reprobate iniquity. The rules applicable to real estate ought to be clearly defined, and capable of being easily understood, so that there may be some security and stability in the titles to estates. This ought to be a favorite object of the law. Whatever has a contrary tendency should be discountenanced. If estates are to be affected by secret liens, those claiming any benefit under them, ought, at least, to be active in making known their rights, and diligent in enforcing them. The complainants show no excuse for the long delay in asserting their claim against the land. It is true, that, shortly after the last note became due, they caused payment to be demanded of John S. Wright, who had previously sold the land and received full payment of the price ; but there is no proof, if indeed that would help their case, that they ever insisted on payment from his grantees, or even notified them that they relied on a lien.

The decree of the Circuit Court is affirmed.

Decree affirmed.


author: Opinion by Mr. Justice Catón:

text:
    Isaac Cook, appellant, vs. Jacob Miller, appellee.

      •Appeal from Cook County Court of Common Pleas.

    In an action of trespass against a sheriff, for levying upon property, he cannot defend, hy showing that he made the levy by virtue of an attachment against other parties, supposed to be the owners of the property, and that the plaintiff was a fraudulent purchaser, unless he shows that the plaintiffs in the attachment were creditors.
    In a defence of this character, the officer need not plead the judgment, but may show on the trial that a judgment has been obtained. But the process under which the sheriff made his levy must be clearly and distinctly described, so as to furnish such information as will enable the plaintiff in the suit to ascertain what is relied upon.
    This was an action of trespass de bonis asportatis, brought by the appellee, in the Cook County Court of Common Pleas. The appellant pleaded the general issue, and gave notice therewith of his defence. The appellant justified the taking of the property, by virtue of an attachment and an execution, issued against Miller and Clements, and that the sale of the goods from them to the appellee was fraudulent and void. On the trial of the cause, the appellant offered the execution against Miller and Clements, in proof, as a part of his defence. The appellee objected to the admission of the execution in evidence, because the notice of special matter did not show from what Court the execution emanated, and the Court below sustained the objection. The appellant then moved the Court for leave to amend his notice; which motion was denied. The cause was heard before a jury, Spring, Judge, presiding, at the February term, A. D;A850, and a verdict and judgment were rendered against the appellant, for the sum of $ 3,236 23. The errors complained of, were the excluding of the execution, and the refusal to allow the defendant below to amend his notice of the special matter relied on. ,
    B. S. Morris and R. S. Blackwell, for appellant.
    Arnold & Lay and N. H. Purple, for appellee.
   Opinion by Mr. Justice Catón:

The question of fraud is not before us, nor was it properly before the jury in the Court below. As between the parties to the sale, the transfer was unquestionably good, and as the evidence offered by the sheriff, tending to show that he acted for and represented creditors of Miller and Clements, having been ruled out, there was nothing left which could authorize the jury to find that the transfer was made to defraud creditors. The principal question, then, which is properly presented, is, did the Court err in rejecting this evidence. Beach, the deputy sheriff, testified that he levied upon the building and goods, by virtue of an attachment and an execution. The attachment was admitted in evidence; but as the plaintiffs in attachment obtained no judgment, there is nothing to show that they were creditors, and under them the sheriff could not insist upon the fraud. The attachment, then, may be laid out of the question. The bill of exceptions further states : “ On cross-examination, Beach was requested to produce the execution issued on behalf of Yelveston and Fellows, which he produced, and the defendant offered the same in evidence ; to the reading of which the plaintiff objected ; and the Coux-t sustained the objectioix, on the ground of the insufficiency of the notice under which it was offered ; to which opinion of the Court the plaintiff excepted.” The sufficiency of the notice is thus directly presented. The notice states, that Yelveston and Fellows, “ at the June term of the year 1848, obtained a judgment against the said Augustus Miller and Daniel R. Clements, for the sum of $ 1,309 92 damages, and $ 5 68 costs, as taxed by the clerk of said Court; upon which judgment execution was duly issued, and placed in the defendant’s hands, to be executed, as sheriff of said county,” &c. It was objected, that neither the judgment nor the execution was sufficiently described in the notice. As to the judgment, it is well settled that it was not necessary for the defendant to state in his notice that any judgment existed. The notice avers, that in obedience to the command of the execution, the sheriff took the property from the defendants in the execution, to satisfy the same, and that it was their property. This was certainly sufficient, in the first instance, to justify the sheriff, if the execution was sufficiently described, and the existence of the judgment was wholly immaterial, till it became necessary to impeach the sale from Miller and Clements to Jacob Miller, as being fraudulent, as to creditors. Then, and not till then, was the sheriff bound to produce the judgment, in oi’der to show that he represented creditors who had a right to complain of the fraud. In his notice he was not bound, nor did he pretend to anticipate the sale and to avoid it. ' This was new matter, which, for the first time, appeared in the evidence, not having been noticed in the plaintiff’s pleadings, and, necessarily, the defendant would have a right to go behind his pleadings with his evidence, to meet and rebut the sale. Even in case of a special plea of justification, it is not necessary for the officer to plead the judgment. Jackson vs. Hobson, 4 Scam., 411. But we think the notice did not describe the execution with sufficient certainty. Although the date of the execution is not given, yet that might have been dispensed with, had the notice stated out of what Court or by what authority it issued. Any execution, emanating even from a foreign Court, or issued by an officer or individual having no authority to issue an execution in any case, might have been produced under this notice; and, indeed, there is nothing in this whole record to show that such was not the character of the execution that was offered. Nor is there any thing in the notice pointing the plaintiff to any source of information, where he might have ascertained what judgment and execution were relied upon. Had Miller and Clements been the parties, and the notice given to them, we should be inclined to hold the notice sufficient; for thejr might reasonably be supposed to know what judgment and execution were referred to; and this would be going quite as far as any Court has gone, to whose decisions we have been referred. With a disposition to go as far as possible in favor of these notices, which have been introduced by the Legislature, to avoid the technicalities of special pleadings, yet we must either dispense with all notice whatever, or hold that it must substantially advise the party of the facts relied upon in defence, or, at least, it must furnish him with such information as, by the exercise of reasonable prudence and diligence, will enable him to ascertain precisely what is relied upon. Every thing stated in this notice may be strictly true, and yet the sheriff not be justified. For aught that appears, this execution may have furnished the officer with no more justification than a blank piece of paper. It is not even stated that it was a valid execution, nor was the plaintiff furnished with the means of ascertaining whether it were valid or not. For aught that we can see, the Court might, with propriety, have allowed the party to have amended the notice, even upon the trial, upon just and reasonable terms j but this was matter- of discretion, and, according to the uniform decision of this and all other Courts, we cannot review that decision here.

It may not be improper to remark, that notwithstanding the execution was ruled out, still the question of fraud seems to have been gone into on the trial, and was submitted to the jury, precisely as if the proper foundation had been laid by the introduction of the judgment and execution, and upon a full investigation of the evidence, the jury found that the sale was bona fide, and not in fraud of creditors; and we do not think there was such evidence of fraud as would justify us in disturbing the verdict, even if that question were properly before us.

The judgment of the Circuit Court is affirmed, with costs.

Judgment affirmed.


author: Opinion by Mr. Justice Trumbull :

text:
    David Green, administrator of William Stadden, deceased, appellant, vs. George Mann, appellee.

      Jlppeal firom LaSalle.

    A rented to B a mill, for three years, and agreed to put in operation two additional runs of stones, with machinery, holts, &e., which was defectively done. B brought suit, alleging a breach of this agreement. Held, that the true measure of damages in this case was, the value of the use of that portion of the machinery which A had contracted to furnish, and which, by reason of his failure to do, B was unable to enjoy.
    Mann brought suit in the La Salle Circuit Court against Green, as administrator of William Stadden, alleging that by a certain agreement, in writing, between himself and Stadden, on the 22d August, 1844, Stadden rented to Mann his flouring mill, for the term of three years, Stadden binding himself to put into operation two more runs of stones, with the necessary machinery, for manufacturing flour, with a holt for country work or middlings, within the first year—the work to be done as substantial and with sufficient power to grind as fast as those already at work, &c., &c.,33 which it was averred he had neglected to do, except in an imperfect and incomplete manner; and damages were claimed for the breach of contract. Several pleas were filed, and the issues came on for trial before Spring, Judge, and a jury, at November term, 1849, of the La Salle Circuit Court. A verdict and judgment were rendered for $ 250 damages. The defendant below prayed this appeal. The points raised are explicitly stated in the opinion of the Court.
    N. H. Purple and Glover & Cook, for appellant.
    E. S. Leland, for appellee.
   Opinion by Mr. Justice Trumbull :

Stadden rented to Mann his flouring mill, for three years, for which the latter agreed to pay. $ 1,200 rent, for the first, and $ 1,700, for each subsequent year. The lease contained an agreement by Stadden, “ to put into operation two more runs of stones, with the necessary machinery, for manufacturing flour, with a bolt for country work or middlings, within the first year— the work to be done as substantial and with sufficient power to grind as fast as those already at work.” Mann brought suit, alleging a breach of the foregoing stipulation for improvements. The evidence shows, that Stadden put .the two additional run of stone into the mill, but it also shows, that there was some defect in the bolt, and that the main wheel was not strong enough to drive more than one of the new run of stone at a time; also, that the deficiency, both in the wheel and bolt, could have been repaired at an expense not exceeding one hundred and twenty dollars. The jury found a verdict for the plaintiff below; and the only point in controversy is as to the measure of damages.

The Court instructed the jury, that if Stadden did not comply with his contract, they should allow the plaintiff such an amount of damages as are the immediate consequence of nonperformance on the part of said Stadden, and such as would probably have been contemplated by the parties as the consequence of said non-performance;” and refused to instruct, that the plaintiff’s damages would only be the necessary expenses of repairing said wheel and bolt, the value of the use of the machinery which would be suspended by the process of repairing, the necessary inconvenience and trouble attending the same, and the interest upon such necessary expenditures, provided the jury shall also believe, from the evidence, that such repairs could have been made at a small expense, compared to the cost of the whole machinery, or by the exercise of reasonable exertion on the part of the plaintiff.”

The instruction refused by the Court assumes that it was the duty of Mann to have perfected the improvements which Stadden had undertaken to make, provided it could have been done at a small expense, compared to the cost of the whole work; and several authorities are referred to, as sustaining this position. We have examined the cases referred to, and do not think they sustain the position contended for. In the case of Thompson vs. Shattuck, 2 Met., 615, the plaintiff brought suit on an agreement to keep one half of a mill-dam in repair. The Court held, that as plaintiff was bound to repair one half the dam, he had the right, upon the refusal of the other party to aid, to make the whole repairs at once. If he delayed it was his own fault; and that having gone on and made the repairs, he was only entitled to recover half the expense of making them. The case of Blanchard vs. Ely, 21 Wend., 342, decides,that in an action to recover the stipulated price for building a steamboat, the jury were only authorized to deduct from the amount due the plaintiff, such sum as would be equal to the expenses necessarily incurred by the defendants in remedying such defects as existed in the boat or machinery. In this case, the defendants had accepted the boat before she was entirely finished, and at their own expense had gone on and made the necessary alterations. Neither of these cases is like the present, for in'both the party seeking to recover damages for the breach of contract had gone on and made the repairs which the other had contracted to do. Not so in this case. Mann did not proceed to remedy the defects which existed by reason of a failure on the part of Stadden to perform his contrrct. Had he done so, it is probable that he could only have recovered the expense he was put to in remedying the defects. But he was under no obligation to perform Stadden’s contract for him, and not having done so, it is right that Stadden’s estate should pay the damages immediately resulting from the breach of contract. In the- case in 2 Met-calf, the plaintiff was equally bound with the defendant to repair the dam. Not so here. As a general rule, a tenant has no authority to make permanent repairs, without his landlord’s consent, and charge him with the expense. We do not mean to say, that when a party, entitled to the benefit of a contract, unreasonably and through gross negligence, omits to do some trifling act, which would have prevented extensive damage, that he is not bound to do so. Such is the case instanced in the books, where a man enters his neighbor’s field unlawfully, and leaves the gate open. If, before the owner knows it, cattle enter and destroy the crops, the trespasser is responsible. But if the owner sees the gate open, and wilfully or obstinately, or through gross negligence, leaves it open all summer, and cattle get in, it is his own folly. It may be difficult, in some cases, to determine what is a trifling defect, which a party, acting in good faith, ought to remedy, when his neglect to do so will occasion considerable damage; yet this is clearly not such a case. The evidence tended to show that the expense of remedying the defects in the wheel and bolt would have been f 120—no trifling sum; and to have given the instruction asked, in such a case, would have been calculated to mislead the jury, and, as we think, clearly erroneous.

The true measure of damages, in this case, was the value of the use of that portion of the machinery which Stadden had contracted to furnish, and which, by reason of his failure to do, Mann was unable to enjoy. Nor is there any such difficulty in ascertaining what the damages in such case would be, as has been imagined. The value of the use of a run of stone in a mill is as easily ascertained as the value of the use of the whole mill, and in an action to recover for the use and occupation of a mill, we do not apprehend that there would be any difficulty in arriving at the proper amount to be recovered. It would not be necessary in such a case to inquire, as has been supposed, the price of wheat, or what might or might not have been made by the lessee, but what would be a reasonable rent for the premises, would be the only subject of inquiry. So in this case. Mann agreed to pay $ 1,700 a year, for the use and occupation of a mill, which Stadden agreed to alter, so that it should have four run of stone, instead of two; the additional ones to be equal to the two first. Instead of doing this, he so makes the improvements that one run of stone is useless, without an expenditure of $ 120, upon the wheel and bolt, by the lessee. There can be no question that Mann was not compelled to make that expenditure, and that he was entitled to recover from Stadden’s estate, not speculative damages, such as the loss of profits which he might have suffered in consequence of not having the use of one of the runs of stone, but the value of its use, that is, what it would have rented for during the time, and also the immediate damages resulting from the defective holt.

The instruction given to the jury was not very specific, and was, perhaps, objectionable on that account, as not laying down any particular rule, by which the jury were to be governed in assessing damages. But the instruction contains a proposition that is strictly legal; and the giving an abstract proposition of law as an instruction to a jury is no error.

The whole evidence not being in the record, we cannot determine what the recovery should have been, nor upon what basis the jury acted in assessing damages. The contrary not appearing, the presumption of law is, that they adopted the correct rule 3 and as the Circuit Court committed no error in giving or refusing instructions, its judgment must he affirmed.

Judgment affirmed.


text:
    Isaac Cook, appellant, vs. Cynthia Thayer, appellee.

      •Appeal from Cook County Court of Common Pleas.

    A chattel mortgage, duly acknowledged and recorded, containing a provision that the property mortgaged may continue in the possession of the mortgagor, will, if made in good faith, to secure an honest debt, be good and valid against creditors and purchasers, for the space of two years after the same shall have been recorded, whether the debe it is designed to secure then becomes due or not. After that time, it ceases to be valid against creditors and purchasers, unless the possession of the property is transferred to the mortgagee.
    The same effect must he given to the finding of a Court as to the verdict of a jury.
    This was an action of replevin, brought by the appellee in the Court of Common Pleas for Cook county, to recover certain chattels, which had been levied upon by the appellant, who was sheriff of Cook county, as being the chattels of one Allen Porter, by virtue of a certain execution, issued out of said Court. The appellant filed several pleas, denying the taking, and averring property in himself, property in Allen Porter, and an avowry, setting out the execution, &c. Issues were joined, proofs taken, and the cause was submitted to the Court, Spring, Judge, presiding, for trial, at the May term, 1849. The issues were found for the plaintiff, and one cent damages were assessed. The defendant below brought the case to this Court, by appeal.

      J. Y. Scammon and G. Manniere, for appellant.
    Skinner & Hoyne, for appellee.
   Opinion by Treat, C. J.:

It is declared by statute, that “any mortgage of personal property, so certified, shall be admitted to record by the recorder of the county in which the mortgagor shall reside at the time when the same is made, acknowledged and recorded ; and shall, thereupon, if bona fide, be good and valid, from the time it is so recorded for a space of time not exceeding two years, notwithstanding the property mortgaged or conveyed by deed of trust, may be left in possession of the mortgagor; Provided, that such conveyance shall provide for the possession of the property so to remain with the mortgagor.” R. S., ch. 20, sec. 8.

The mortgage in question contained a clause that the goods might remain in the possession of the mortgagor, and it was acknowledged and recorded long before the levy was made. But, it is insisted, that the' provision authorizing the mortgagor to retain the possession, until default should be made in the payment of the note, which had three years to run, from the date of the mortgage, rendered the mortgage fraudulent and void in law. We think otherwise. The true meaning of the statute is, that a mortgage on personal property, duly acknowledged and recorded, and containing a provision that the property may continue in the possession of the mortgagor, shall, if made in good faith and to secure an honest debt, be good and valid against creditors and purchasers, for the space of two years, after the same is recorded; and not that a mortgage, which has a longer period to run, is without the protection of the statute altogether. It continues valid and operative for two years, whether the debt, which it is designed to secure, then becomes due or not. At the expiration of ,the two years, it ceases to be valid, as against creditors and purchasers, unless the possession of the property is transferred to the mortgagee.

The mortgagee was, therefore, entitled to recover, unless the mortgage was in fact fraudulent. We are not prepared to decide that it was successfully impeached. Two witnesses, familiar with the dealings of the parties, testified that the mortgagor was justly indebted to the mortgagee in the full amount of the note, and that the mortgage was made in good faith, to secure the payment thereof. Although there are some circumstances in the case, which may tend strongly to show that the mortgagor was acting in bad faith towards his creditors, generally, there is nothing, calculated to impeach the fairness of this transaction. At all events, we cannot say that the Circuit Court manifestly erred in holding, from all the evidence, that the mortgage was not made for the purpose and with the design of hindering and delaying creditors in the collection of their debts. The same effect must be given to the finding of a Court as to the verdict of a jury.

Nor did the Court err in excluding the testimony offered by the appellant. It related to transactions between the witness and the Porters, with which the appellee had no connection. It by no means followed, because the mortgagor and his brother had combined to defraud the creditors of the former, that this mortgage was executed to a third person, with a fraudulent design.

The judgment of the Circuit Court is affirmed, with costs.

Judgment affirmed.