author: Trumbull, J. Treat, C. J.

text:
    Martin Tubbs, Pltff in Error, v. Abby Van Kleek, Deft in Error.
    ERROR TO KENDALL.
    In an action for breach of promise of marriage, seduction, if in consequence of the promise, may be given in evidence in aggravation of damages.
    A party is always entitled to such damages, as are the natural and proximate result of the act complained of.
    This was an action of trespass on the case, for breach of promise of marriage.
    The plea denied the promise and undertaking.
    At the May term, 1850, of the Kendall Circuit Court, the cause was tried before T. L. Dickey, Judge, and a jury, and resulted in a verdict and judgment for $1,000.00.
    ■ The evidence set out in the bill of exceptions, clearly proves the promise to marry, the birth of an illigitimate child, and that the father of the defendant in error had also brought an action against the plaintiff in error, to recoverdamages for the seduction of his daughter, which was pending at the time of the trial of this suit.
    S. W. Bandall, for Pltff in Error.
    E. Leland, for Deft in Error.
   Trumbull, J.

This was an action for a breach of a promise of marriage. Jury trial and verdict of a thousand dollars in favor of the plaintiff below. It was proven, on the trial, that the plaintiff had given birth to a child, and the Court, at her instance, instructed the jury as follows:

“That if the jury believe, from the evidence, that the defendant entered into a marriage contract with the plaintiff, and under the pretence .and promise of marriage, seduced and begot the plaintiff with child, that circumstance, and violation of faith, should be taken into consideration by the jury in estimating the damages.”

The giving of this instruction is assigned for error, which is the only question in the case.

There is some conflict in the authorities, as to whether seduction committed under promise of marriage, is admissible in evidence, to aggravate the damages in an action for the breach of such promise, but the weight of authority, as well as the reason of the thing, appear to be decidedly in favor of the admission of such evidence. The only cases, to which reference has been made, as establishing a contrary doctrine, are those of Bucks v. Shain, 2 Bibb, 343, and Weaver v. Bachert, 2 Pa. State R., 80.

In the first of these cases, the promise to marry was made at a period subsequent to the seduction, and, as was well remarked! by the Court, the seduction could not have been the consequence of the promise. In such a case, when an action was brought for the breach of the marriage promise, it would clearly be erroneous, to allow damages on account of an injury inflicted before the promise was made, and which could not have resulted from it. The case of Weaver v. Bachert, is based upon that of Bucks u. Shain, and so far as it goes, is an authority against the admission of proof of seduction in an action for a breach of marriage promise, but the reasoning of the Court in that case, is by no means satisfactory. The decision is placed upon the ground that illicit intercourse is an act of mutual imprudence, and that volenti non fit injuria, also upon the further ground, that the father has a distinct action for the seduction of his daughter, and that to allow the daughter to recover also, would be to subject the seducer to the payment of double damages.

It is possible, but hardly probable, that a case may arise where both parties are equally culpable, but the instruction under consideration, does not suppose such a case. It is based upon the presumption, that the jury believe from the evidence, that the defendant, under pretence of marriage, enticed the plaintiff from the path of rectitude and duty; and in such a case, to say that both parties were equally in fault, would be to confound the innocent with the guilty, and to visit the same condemnation on the party defrauded, as on him committing the fraud; nor is it true, that illicit intercourse is usually an act of mutual imprudence. In a vast majority of cases, the female is imposed upon,. and the consequences attending such intercourse are visited upon her with ten fold severity. In this case, the parties are not presumed to be in pari delicto, but the instruction pre-supposes a cheat on the part of the man. It is like the case, where a man promised to marry a woman, on condition that she would go to bed with him that night, which she did. It was objected, in an action, by the woman upon this promise, that it was lurpis contractus, but Lord Mansfield said he thought the objection would not lie, “because the parties were not in pari delicto, but this was a cheat on the part of the man.” Morton v. Fenn., 26, E. C. L. R., 80. So a bond given to a woman in consideration of past cohabitation, has been held good at law. Turner v. Vaughan, 2 Wilson, 339. In answer to the objection, that the bond was given for an immoral consideration, Cline, Justice, said: “I ain in a court of law, and not in an ecclesiastical court; if a man ha's lived with a girl, and afterwards gives her a bond, it is good.”

It is also a mistaken notion, to say that a father has a distinct cause of action for the seduction of his daughter. No action lies by the father simply for the seduction, but he may have an action for the loss of service occasioned by the lying-in of Iris daughter, and it is only by a fiction of law, invented by the Courts, that he is allowed damages in that action for the seduction. The damages, even then, are only such as he may have sustained in the disgrace brought upon his family, in his wounded feelings, or otherwise, and nothing is allowed on account of the suffering and disgrace of the daughter. It does not follow, therefore, that the seducer will be made to pay double damages for the same injury. He pays to the father for the -injury done him; if the daughter is permitted to recover, it is for the injury done her, and it often happens that by one act, a wrong may be done several persons, for which, each has a right of action. Suppose a female is so unfortunate as to have no father, or person sustaining towards her that relation, which will authorize Ms bringing a smt for loss of service; according to the doctrine of the Pennsylvania Court, her seducer under promise of marriage, is answerable to no one for the fraud he has practised upon her. Sooner than establish such a principle, it would be well to adopt the language of Chief Justice Wilmot, in the case of Tullidge v. Wade, 3 Wilson, 19, which was an action by the father for loss of service, wliere he said:- “'The jury have done right in giving liberal damages; and if A. B. brings another action against defendant, for breach of promise of marriage, so much the better; he ought to be punished twice;” but we are not driven to such extremities, the weight of authority is in harmony with the reason and justice of the case. The Courts of Massachusetts, Missouri, Tennessee, and Indiana, have all held, that in an action by a female for a breach of promise of marriage, her seduction by the defendant, under promise of marriage, may be given in evidence in aggravation of damages. Paul v. Frazier, 3 Mass., 72; Green v. Spencer, 3 Missouri, 318; Conn v. Wilson, 2 Overton, 233; Whalen v. Layman, 2 Blackf., 194.

The reason for these decisions is manifest. A party is always entitled to such damages, as are the natural and proximate result of the act complained of. 2 Greenleaf’s Ev., §256.

Whatever damages, therefore, the plaintiff suffered in consequence of defendant’s refusal to marry her, she is legitimately entitled to recover in this action. How are these damages to be estimated, unless we look at the circumstances of the parties, and , the situation in which the plaintiff is left, by the defendant’s refusal to perform his contract ?

All the authorities, not excepting the case in Pennsylvania, admit that parties in this action may show their circumstances, or condition in life, as matter of aggravation or mitigation. Why, then, may not a female show the situation in which she is left, by the violation of his promise on the part of a man, who «has agreed to marry her ? Had he performed his contract, she would have been saved from disgrace, in part at least, and her child legitimated. The direct consequence of his breach of contract, is the disgrace and ruin pf her, whom, by means of that contract, he has seduced, and upon every principle of right and justice, he should be held responsible for the injury which his own breach of contract has occasioned.

The Court in Pennsylvania asks this question: “If, then, a woman cannot make her seduction a ground of recovery directly, how can she make it so indirectly?” The answer to such a question is obvious. It is every day’s practice, to give in evidence, by way of aggravating damages, circumstances which would not of themselves, constitute distinct causes of action. Cases of this kind are too common to need illustration. 2 Greenleaf’s Ev. §55, 267. The injury done a female by the violation of a contract to marry her is not the same in all cases, and whenever such contract has been used by the party making it, to inflict the most aggravated of injuries upon the woman, it is right that such injuries should be taken into consideration, by the jury, in estimating the damages which he should pay for the violation of his promise. A man who under pretence and promise of marriage, gains the affections of an innocent girl, seduces and then abandons her, inflicts an injury, for the recompense of which, money is wholly inadequate. Such a man, if he deserves the name, is entitled to no sympathy at the hands of either juries or Courts, but should be made to respond in heavy damages, the only recompense which the law allows, for the commission of an act, occasioning to the person injured, more real suffering and distress, and bringing upon her greater disgrace, than any other which man can commit.

Let the judgment be affirmed.

Judgment affirmed.

Treat, C. J.

dissenting. This action is for the breach of the contract to marry. The seduction of the plaintiff forms another and distinct cause of action. The one grows exclusively out of the contract to marry, the breach -of which affects the daughter solely, and she alone can bring the action; the other prooeeds from an immoral act, in the commission of which the daughter, in legal contemplation at least, is a partaker equally with the defendant, and the only civil remedy provided by the law in such case, is the action by the father, for the consequent expense and loss of service. They are separate and distinct causes of action, founded on entirely different considerations, and accruing to different persons. In the action by the father, the breach of the contract to marry, cannot be taken into consideration by the jury; nor ought the daughter to recover damages on account of the seduction. If she is allowed to do so, the recovery would be no bar to the action by the father, and consequently, the defendant might be twice made responsible for the same act. More than this, it would be permitting her to recover damages for an immoral act, in the doing of which she equally participated. The parties are in pari delicto. If the plaintiff has been debauched, it was the result of her own voluntary consent. It is contrary to the policy of the law to give one guilty party a remedy against an associate in crime or immorality. On this ground, the ruling of the Circuit Judge was, in my opinion, clearly erroneous, for the real effect of his decision, was to authorize the jury to give the plaintiff damages for the seduction, thereby enabling her to accomplish indirectly, what the law, in no event, would allow her to do directly. There is not a single case to be found in the English Reports, that countenances such a.doctrine. But the question must have occurred in that country over and over again, and would have found its way into the books, if the slightest doubt had been entertained on the subject. It is a legitimate inference, from this silence in the English Reports, that the principles of the common law do not sanction such a recovery. The notion seems to have originated in this country, and some of the Courts, as I cannot but think, more influenced by sympathy for the party debauched, or by indignation against the seducer, than by a stern adherence to the well established rules and distinctions of the common law, have seen proper to adopt it. The cases of Burks v. Shain, 2 Bibb, 341, and Weaver v. Bachert, 2 Barr, 80, lay down and enforce the true doctrine on this subject. The reasoning of the Courts in those cases is, to my mind, satisfactory and conclusive.


source: Caselaw Access Project

author: Treat, C. J.

license: Public Domain

text:
    Hiram Foster, Pltff in Error, v. Joseph J. Jared, Deft in Error.
    ERROR TO WARREKT.
    If A gives a bond to convey land to B, and receives notes for the purchase money,, and he should afterwards sell the same land to O, B cannot avoid the payment of." the notes, by setting up the fact, that A had parted with his title to the land.
    The payment of the notes being a condition precedent,A could not be put in default, until after their payment. A payment, or an offer to pay is necessary to a. rescisión of the bond.
    The word debt in a judgment, does not necessarily make it a judgment in debt.
    Joseph J. Jared sued Foster in assumpsit, on a promissory note. Foster plead, 1st, non-assumpsit; 2d, failure of consideration in this: One William Jared, being the owner of the legal title to a certain tract of land, sold the land to Foster, and executed his title bond, as the evidence of the agreement on his part, by which he bound himself to convey by warrantee deed, the land to Foster, upon the payment of the residue of the purchase-money, which was to be made in three annual instalments, of which the note sued on was given to secure the payment of the first. That William Jared, without insisting upon any forfeiture for the non-payment of the note in suit, and without the consent of Foster, conveyed the land to one .Joseph J. Jared, a stranger, that the title still remains in Joseph J. Jared, whereby William Jared voluntarily put it out of his power to perform his part of the agreement, and the consideration of the note failed, of which the plaintiff had notice, &c.
    To this plea, the plaintiff below demurred; the Court sustained the demurrer.
    The issue on the first plea was tried, found in favor of the plaintiff below, and judgment rendered that he should recover a certain sum debt, together with his costs.
    A jury was waived, and the cause was tried by the Court, Kellogg, Judge, presiding, at April term, 1851, of the Warren Circuit Court.
    The errors assigned, were the sustaining of the demurrer to the plea, and the rendition of the judgment in debt.
    Manning- & Davidson, for Pltff in Error.
    The note sued on, and the title bond constituted parts of the same agreement, and the conveyance of the title to the land was the consideration of the note. 4 Scam., 135, 394, 566.
    Where a person having agreed to convey real estate at a future •day, being then the owner of the title, conveys the title to a stranger before that day, an action by the vendee lies immedi■ately, and without tender of performance on his part. Newcomb v. Bracket, 16 Mass., 161; Ford v. Tiley, 13 Eng. Com. Law, 188, (6 Barn. & Cres., 325;) 23 Pick., 460; Reynolds v. Smith, 6 Blackford, 200; 7 Vermont, 27; 3 Vermont, 161.
    In this case, the -payee of the note in suit has elected to rescind the contract by conveying to a third person, and therefore no recovery can be had upon the note in the hands of his assignee, with notice. Arbuckle v. Hawks, 20 Verm., 538; 11 Smedes & Marshall, 372; 1 Morris, 344; 7 S & M., 340; 7 Blackford, 150.
    The form of action is assumpsit, and judgment is rendered for the recovery of a certain sum, debt, which is error. Lyon v. Barney, 1 Scam., 387. For similar reasons that it is erroneous to render judgment for damages, when the form of action is debt. 11 Ills. B., 59, 2 Gil., 266, etpass., it is erroneous to render judgment in debt, where the form of action is assumpsit. Nor can the proper judgment be rendered in this Court, as the evidence is not before the Court, and there wás an issue under which many matters of defence might have been given in evidence. 3 Gil., 434; 1 Chit. PL, 475-6.
    O. Petees, for Pltff in Error.
    The plea alleges that the bond was accepted as the consideration of the note. The facts pleaded show that the consideration of the note was not the bond, but the purchase of land; the contract was not to get a warrant from William Jared, but to get a good title to the land. In a similar case, it has been so settled. Tyler v. Young et al., 2 Scam., 447. William Jared, by the contract, has nothing to do, till all the notes are paid; and Foster undertakes to pay the notes as they consecutively become due, and he must do so, to entitle him to a deed, when he shall be ready to pay the last note.
    This was the contract of the parties, and the Court will let this stand, and not make a new contract for them. Duncan et al. v. Charles, 4 Scam., 561; The President &c. of Bank of Columbia v. Hagner, 1 Peters, 454; Coutch v. Ingersoll, 2 Pick., 292.
    The last error assigned, presents the question, whether the judgment is sufficient in point of form. It would be a good judgment, clearly, but for the insertion of the word “debt” therein.
    The judgment is informal; but mere informality will not vitiate. Sears v. Sears, 3 Gil., 47.
   Treat, C. J.

This was an action of assumpsit, brought by Joseph J. Jared against Hiram Foster. The declara,tion was on a promissory note, dated November 18th, 1848, for $100, payable in twelve months, made by the defendant to William Jared, and assigned by the latter to the plaintiff. The defendant pleaded, first, non-assumpsit: and second, failure of consideration in this; that William Jared, at the date of the note, sold a tract of land to the defendant, for the price of four hundred dollars, one-fourth of which was paid in hand, and the residue was to be paid in three equal installments, to secure the payment of which, the defendant made three promissory notes, the note sued on being for the first installment; that, at the same time, Jared executed a title bond by which he agreed to execute and deliver to the defendant, a good and sufficient warrantees deed for the land, on the payment of the notes at maturity; that the bond provided, that, if the defendant should fail to pay the notes, or either of them, at maturity, or within sixty days thereafter, Jared might declare the contract void, and defendant should forfeit all previous payments; that Jared then had the full legal title to the land, but afterwards, on the 80th of January, 1850, without declaring the contract void, for the consideration of five hundred dollars, by deed of that date, containing no reservation or condition, he conveyed the land to the plaintiff, whereby he voluntarily and wilfully put it out of his power to perform the condition of the bond, by reason whereof the consideration of the note had wholly failed, and of all which the plaintiff had notice before the note was assigned. The Court sustained a demurrer to this plea, and then heard the issue of fact, and rendered a judgment in favor of the plaintiff, for the amount due on the note.

The notes and title bond are but parts of one entire contract. Bailey v. Cromwell, 3 Scam., 71; Duncan v. Charles, 4 ibid, 561; Davis v. McVickers, 11 Illinois, 327. The true consideration of the notes, is the estate agreed to be conveyed. Tyler v. Young, 2 Scam., 444; Mason v. Wait, 4 ibid, 127; Gregory v. Scott, ibid, 392; Davies v. McVickers, supra. But the conveyance of the land, and the payment of the note in question, are not concurrent acts. The payment of the note is to precede the conveyance. The vendor is not bound to execute a conveyance until all of the notes are paid. The doctrine, that in the case of dependent covenants, neither party can recover unless he has fully performed or offered to perform, on his part, has, therefore, no application to this case. The defendant'cannot put the vendor in default, until he has paid, or offered to pay, the entire purchase money. He undertook to pay the two first installments, before he was to receive a conveyance. He chose, as respects this portion of the consideration, to rely on the covenants of the vendor to compel the execution of a deed. It is no excuse, that the latter has now no existing capacity to make a good title. It will be enough, if he has the title when the defendant has the right to demand a conveyance. He may acquire a perfect title before he can be called on to convey. In Green v. Green, 9 Cowen, 44, where the payment of the purchase money was to precede the conveyance, it was held to he no breach of the covenant to convey, that the vendor never had any title to the land. The cases of Robb v. Montgomery, 20 Johnson, 15, and Champion v. White, 5 Cowen, 509, assert the same doctrine. And the same principle is recognized in Gregory v. Scott, and Duncan v. Charles, supra. The fact that the vendor had title when the contract was made, and that he has since transferred it to the plaintiff, makes no difference in principle. He may be re-invested with the title, before he is put in default by the defendant. If a vendor has title when he is bound to convey, the purchaser has no cause to complain. It is a matter of no importance, whether he then acquires the title for the first time, or whether he obtains it by a re-conveyance from a party to whom he once transferred it. The case of Sage v. Ranney, 2, Wendell, 532, is an authority directly in point. The Court there held, on a demurrer to the declaration, in an action of covenant for not conveying a lot of land, which the vendor had agreed to convey when the purchaser should pay a certain note, that an offer of payment and a demand of a deed should be averred; and that the conveyance of the lot to a third person, formed no excuse for not making the tender and demand. The Court said: “and though the defendant had divested himself of the title, yet had an offer of payment and demand been made, he might have been re-vested with the title, so as to have fulfilled his contract.” The defendant is not now in a position to take advantage of a want of title in the vendor. He must first be ready to perform the contract on his part. By tendering the balance of the purchase money, he will have the right to insist upon a conveyance, and if the vendor cannot then make a good title, the contract may be rescinded.

The facts stated in the plea, do not show a rescisión of the contract by the vendor. The plea expressly alleges, that the conveyance was made without declaring the contract void. The assignment of the note shows that he did not elect to rescind the contract. He could not put an end to the contract, and at the same time claim any benefit from the notes. The forfeiture provided for in the bond did not extend to the notes. It only related to payments actually made.

It is contended, that the judgment is in debt, and must, therefore, be reversed. The record, after stating a" hearing of the cause by the Court, proceeds : “it is considered by the Court, that the said plaintiff have and recover of the said defendant herein, the sum of one hundred and eight dollars and fifty cents debt, together with bis- costs in this cause, by him expended, and may have execution therefor.”1 This is not technically a judgment in debt. The word debt, does not of itself make a judgment in debt, ■ without it, the entry would have none of the distinctive features of a judgment in debt, and there would be no pretence for insisting that it was not a good judgment in assumpsit. The word must be considered as surplusage, or understood as used for the purpose of distinguishing the amount found due on the note, from the costs of the plaintiff which are embraced in the judgment.

The judgment is affirmed.

Judgment affirmed^

--


author: Caton, J.

text:
    David L. Hough, Pltff in Error, v. Harvey Leonard, Deft in Error.
    ERROR TO LA SALLE.
    It is error íóra Circuit Court to dismiss a suit Commenced before a justice of the peace, because the papers do-not on their face show his right to jurisdiction.
    It is- the duty of the Circuit Court to near the evidence, and if from that, it appears that the justice had jurisdiction of the matter in controversy, then the case should" be disposed of on its merits.
    Leonard brought an action against Hough, before a justice of the peace. The summons was in the usual form,, on which was indorsed, “demand fifty dollars, justice's fee 75, constable’s fee, 30." A judgment was rendered against Hough, after a trial, for fifty dollars and costs. Hough appealed to the Circuit Court. At April term, 1850, of the La Salle Circuit Court, T. L. Dickey, Judge, presiding, Hough entered a motion- to dismiss the suit, for want of jurisdiction in the justice of the peace, which was overruled. It appeared at the trial on the Circuit, that the bill of particulars, comprising several items, filed by Leonard before the justice, amounted to $109 80. It appeared also, that after Leonard had proved his bill of" particulars before the justice, he rested Ms case for the time being", not having" allowed any crecfits. Hough then moved for a nonsuit for want of jurisdiction in the magistrate. Leonard then offered to allow credits sufficient to reduce his demand to one hundred dollars, which the magistrate permitted. Leonard also asked leave of the Circuit Court to amend his bill of particulars, by striking out, or indorsing specific credits, to reduce his demand to fifty dollars, which was granted. The cause was then submitted to a jury for trial, which resulted in a verdict and judgment in favor of Leonard for $48 55, and costs. A motion was made by Hough for a new-trial, which wras denied. Whereupon Hough brought the cause to this Court.
    M. E. Hollister, for Pltff in Error.
    J. 0. G-lover and Wi. Chumasero, for Deft in Error.
   Caton, J.

The question presented by this record we do hot consider an open one in this Court. At the last term in this Division, it was decided that the Revised Statutes must receive the same construction as the act of 1839, respecting the jurisdiction of justices of the peace, and that it was error for the Circuit Court to dismiss a suit commenced, for want of jurisdiction appearing on the face of the papers, but that it is the duty of the Court, upon appeal, to hear the evidence, and if from that it appears, that the subject matter of the controversy is within a justice’s jurisdiction, then it is the duty of the Court to dispose of the cause upon its merits. Ballard v. McCarty, 11 Ills., 503. The result of the testimony in this case, showed that a justice had jurisdiction of the amount due from the defendant to the plaintiff, which, as the verdict shows, was less than fifty dollars, the amount indorsed on the back of the summons as the extent of the plaintiff’s claim.

The judgment of the Circuit Court is affirmed.

Judgment affirmed.


text:
    Mariah L. Smith, Executrix, &c., Pltff in Error, v. Archibald P. Dysart, Deft in Error.
    ERROR TO PUTNAM.
    Where a record shows pleas, to which no objection is made, and to which a demurrer was overruled, and upon which a judgment was entered for the defendant, this Court will not disturb the judgment.
    This was an action of covenant, brought in the Putnam Circuit Court by the plaintiff in error, as executrix of William Smith, against Dysart. The defendant pleaded, seven pleas. To the first, second, third and fourth, there was a replication and issue to the country. To the fifth, sixth, and seventh pleas there were demurrers, which were overruled. The fifth plea alleges, that plaintiff is not executrix. The sixth plea declares, that said Mariah L. Smith has not been appointed, and is not, nor ever has been, executrix of the last will and testament of said deceased; nor has she produced, either the last will and testament of said deceased, after having proved the same in any other state or territory of the United States, or a certified copy thereof, with letters testamentary, under the seal of the Court where the same were obtained, and a certified copy, &c., showing that letters were granted, &c. To these pleas, after demurrer was overruled, no replication was filed.
    E. S. Leland, for Pltff in Error.
    0. Peters, for Deft in Error.
   Caton, J.

The record shows at least two pleas to which no objection is now made; a demurrer to which was overruled; upon which a judgment was entered in favor of the defendant, which is a perfect bar to the plaintiff’s right of action. We shall therefore decline .entering upon the investigation of the question which was argued, as to whether the seventh plea was obnoxious to a general demurrer, or whether it should have been demurred to specially. 'The defendant is certainly entitled to have the judgment affirmed.

Judgment affirmed.


text:
    Samuel P. Bailey, et al., Appellants, v. J. E. Hardy, Appellee.
    APPEAL EROM TAZEWELL.
    In an application for a continuance on account of the absence of a witness, if the testimony sought is important only in connection with certain facts, those facts should be set forth or referred to in the affidavit, so that the materiality of the evidence may be apparent to the Court.
    This was an action brought by appellee before a justice of the peace, and taken by appeal to the Circuit Court of Tazewell county. In the Circuit Court, Bailey applied for a continuance of the cause upon his affidavit; stating that he was not prepared for trial, for want of a witness, by whom he expected to prove, that the note sued on was in the hands and was the property of one Clement Turner, who held the said note by virtue of an assignment of Benjamin Prettyman, who delivered the same to one Thomas McGrew, since deceased, who delivered the same to the said Clement Turner; that no other witness could prove the same fact, &c., &c. This continuance was refused by the Court, exceptions were taken to the ruling of the Court.
    Davis, Judge, at the same term, being September term, 1850, after overruling the motion for a continuance, proceeded to try the cause without the intervention of a jury, and gave judgment for appellee.
    Merrimans & Johnson, for Appellants.
    Champlin & Wallace, for Appellee,
    cited 8 Wend., 600; Chitty on Bills, 215, 220; E. S., 885, §8.
   Treat, C. J.

The application for a continuance was properly denied. It was not made to appear, that the testimony of the absent witness would be material on the trial. The defendants expected to prove by the witness, that the note sued on was, prior to the commencement of the action, the property of . Turner by virtue of an assignment from the payee. This fact of itself would not constitute any defense to the action. The note may once have belonged to Turner, and still have been the property of the plaintiff when this suit was brought.. It may have been returned to the payee, and by him transferred to the plaintiff. If the makers acquired any defense to the note while it was in the hands of Turner, that could be set up in this case, they should have so alleged in the affidavit. Where testh mony is important only in connection with certain facts, those facts should be set forth or referred to, so that the materiality of the evidence may be apparent to the Court. The Court is not to presume that a .state of case may arise, that may render the testimony important; but the party himself must affirmatively show, that he cannot safely proceed with the trial without the evidence. It is not necessary to inquire whether due diligence was used to procure the attendance of the witness.

The judgment is affirmed.

Judgment affirmed.


text:
    Jonathan Welden et al., Appellants v. Thompson W. Francis, Appellee.
    APPEAL FROM WINNEBAGO.
    This Court will not set aside a verdict of a jury, unless it is against the "weight of evidence.
    This was an action on promises, tried before Hon. Hugh Henderson and a jury, at the December special term, ] 850, between the appellee plaintiff and the appellants defendants, which resulted in a verdict and judgment for the appellee.
    The declaration was upon two promissory notes'made by the defendants.
    First plea. General issue.
    Second plea. Plaintiff ought not to maintain his action for the whole amount of the notes, because the consideration for them was a he-ass and she-ass sold and delivered by the plaintiff to Welden at Michigan City, Indiana, 18th December, 1846, for the sums of money expressed in the notes, and a warranty. In consideration of the sale and notes, the plaintiff warranted the he-ass and she-ass to be sound in every way; but he was unsound, whereby he was of no use or value to Welden, and to wit, 12th December, 1848, died of the unsoundness. Whereby Welden, by the loss of the animal, and of the value he would have been of if sound, and of the services he ought to have received from him until the time he died, sustained damages, to wit, to $200. Prayer, if the plaintiff ought to maintain his action for any part of the moneys due, according to the notes, except that part over and above those damages.
    The defendants to prove their part of the issues, read the warranty following:
    I, this day, sell to Jonathan Welden, my large jinney and a small jack. I warrant them to be both sound in every way, But do not warrant the jack to be a foal getter, as I have not owned him but a short time.
    Michigan City, Dec. 18, 1846. T. W. FRANCIS.
    The depositions of James Hopkins and Fisher Ames were read on the trial.
    They say the plaintiff sold Jonathan Welden, in the fall of 1846, or January or February, 1847, or thereabouts, a jack-ass. The terms of sale were promissory notes of Jonathan Welden and Betsy Welden, for $75. Had known him some five months, and was sound when sold to said Jonathan Welden. At the same time, plaintiff sold Jonathan Welden a she-ass, which they knew while suckling, was sound when sold to Welden.
    Godfrey Carnes, whose deposition was taken, says: I saw a jack-ass, which I understood to be J. Welden’s. Thinks it was some time in December, 1846. He was a grey dun or mouse color. Supposes he was about the common size. He appeared to be lame in his feet and legs. To me he would have been of no value whatever.
    The deposition of Joseph Goodrich was taken; says defendant Welden left a jack-ass in my possession, at my residence, in the fore part of January, 1848. His feet were rather out of shape. He was left with me for about eleven months. I think his feet were never sound while in my possession. He died early in December, 1848, thinks with disease. I think the disease in his limbs and feet was of a permanent nature.
    The defendants called William A. Miller, who testified that he resides in the county of De Kalb; that Welden came to his house from the east, in the latter part of December, 1846, with a wagon and one horse in it, and a she-ass. He had also a jack-ass which gave out at a river about three quarters of a mile from the house of the witness, and could not go any further. The horse and other ass were in good condition, and not jaded. The he-ass was got to the witness' house, and was there taken care of by him, and remained there three or four weeks, sick; -at the end of which time he was so far recovered and recruited, that Welden came and took him away home, as he supposed. He further testified, that he was acquainted with the diseases of such animals, and that the disease could not, in his opinion, be a fresh founder; that the animal was thin in flesh. He appeared to be tired out; his feet and legs were sore, and he could not get up, and did not get up for several days without lifting, and when up, had difficulty in voiding water. His hoofs were grown out and contracted. He considered him of no value whatever.
    Francis Burnap, for Appellant.
    Miller and Miller, for Appellee.
   Treat, C. J.

The testimony in this case has been carefully considered, and we are not prepared to say that the verdict was against the weight of evidence. Two witnesses, who knew the animal in question at the time of the sale, and for several months previously, stated that he was sound when sold; while the two other witnesses testified, that he was subsequently unsound and valueless, from a disease that, in their opinion, had its origin anterior to the sale. This is stating the case as favorably for the appellant, as the bill of exceptions will authorize. The Court wrould not be justified in holding that the jury erred in the conclusion that there was no breach of the warranty.

The judgment is affirmed.

Judgment affirmed.


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    Orrin Smith, et al., Appellants, v. Robert S. Harris et al., Appellees.
    APPEAL FROM JO DAVIES.
    Upon plea in abatement for non-joinder of a co-defendant, the plaintiff should issue a sci. fa., against the co-defendant, and insert his name in the declaration, and non-service of the sci.fa., will not im¡)ede the progress of the suit.
    The provisions of the fourteenth section of the Act on Abatement, relate to persons who by marriage or death, have become necessary parties to a suit, which was originally properly commenced without them; and they can only be made parties by actual service upon them of a sci fa., or by their voluntary appearance.
    The mere omission of the Court, on overruling a demurrer to the declaration, to render a formal judgment of respondeos ouster cannot prejudice the plaintiff. The defendant is at liberty to answer over, and, if he does not do so, the Court must dispo e of the case for want of a plea.
    In a suit, brought on an instrument of writing for the payment of money, if no issue is made, the Court may either itself assess the damages against parties in default, or may direct the clerk to do so, but where an issue is made by one defendant, and default entered against others, the Court or jury who tried the issue, must assess the damages against the parties in default.
    In a judgment for the plaintiff, a general judgment for costs against all the defendants is good, whether all have defended or not.
    This was an action of assumpsit, brought in the Jo Davies Circuit Court, by Robert S. and James M. Harris, against Orrin Smith and others, on a promissory note. The note was dated February 1st, 1849, given for $2,000.00, payable four months from date, in the following form, “For value received, the steamboat, Senator, and owners, promise to pay to the order of D. S. Harris,” &c. Signed, Orrin Smith Capt. for Boat and Owners, and endorsed by D. S. Harris, to R. S. Harris & Co., the plaintiffs below. The defendants below, were sued as owners of the steamer Senator. The pleadings are stated in the opinion of the Court. A jury was waived, and Sheldon, Judge, found for the plaintiffs, at May term, 1850. The bill of exceptions, shows that the note was given in part consideration of said boat, which was purchased of the payee of the note. Several of the defendants were present when the note w as executed.
    The declaration averred that Smith executed the note as the agent of the defendants.
    R. S. Blackwell, for Appellants.
    The proceedings in making Brisbois a party, were irregular in this, viz: the scire facias was never served upon him, there was no order making him a party, and no disposition made of the plea in abatement. The true rule of practice, where a plea in abatement is filed, alleging the non-joinder of a party defendant, is, for the plaintiff immediately upon the filing of the plea, to sue out a scire facias against the person named in the plea; on the return of the writ to insert his name in the declaration; when service is had, obtain an order from the Court making him a party defendant; then by replication traverse the truth of the plea, and in support thereof exhibit the scire facias, amended declaration and order of Court, making him a party; upon which the Court will render a judgment of respondeas ouster against the defendants. R. S., 43, 44, 45, § 3, 4, & 15; Heslep v. Peters, 4 Illinois, 45.
    There ought to have been an interlocutory judgment on overruling the demurrer of Smith, Corwith, & Lodwick. 5 Dane Abr., 221, 224; 2 Saund. R., 119, 153, 205.
    When plaintiff made Brisbois a party, there was a new cause of action spread upon the record, and the demurrants and the parties defendant, who plead in abatement, had a right to plead de novo, and the Court erred in rendering an interlocutory judgment against them without entering technical default.
    There was no assessment of damages as to Corwith, Smith, Lodwick, Campbell, and Blakely, which is clearly erroneous. Howell v. Barnett, 8 Illinois, 433.
    The introduction of the note, on the face of which an answer appeared, it was incumbent on the plaintiff to explain it, this was not satisfactorily done, and, therefore, there was a variance between the declaration and note. Longly v. Norvell, 2 Illinois, 389; Walter v. Short, 10 Illinois, 252.
    A general judgment for costs in this case against all of the defendants, who severed in their defence, was clearly erroneous.
    E. S. Leland, and Doulass & Higgins, for Appellees.
   Caton, J.

This was an action of assumpsit, originally commenced against Smith, Campbell, Corwith, Lodwick, Blakely, Rice, and Douseman, on a note signed “ Orrin Smith, Capt. for boat and owners.” Smith, Corwith, and Lodwick, demurred to the declaration ; Campbell and Blakely, filed a plea in abatement, alleging that Brisbois should have been joined as defendant, and Rice pleaded the general issue. An order was entered for a scire facias, against Brisbois, which was returned not found, and his name was suggested on the record, as a party defendant. There appears an order, reciting that the plea in abatement having been confessed, and Brisbois having been made a party by scire facias, and the said Blakely and Campbell having failed to answer further, a judgment by default was entered against them. After-wards the issue of fact made by Rice, was tried by the Court, who found in favor of the plaintiffs, and assessed their damages $2,118.68, upon which a motion for a new trial was made, which was overruled. And on the same day a judgment was rendered against all of the defendants who had appeared for the amount found due upon the note. The bill of exceptions shows that when the note was offered in evidence, it was objected to, because the letters “ U. S.” before the word Senator, had been erased. The plaintiffs offered evidence tending to' explain the erasure, and show that it was made at the time of the execution of the note, when the objection was overruled, and the note read in evidence, to which an exception was taken, as well as to- the overruling' of the motion for a new trial.

Upon this record, nineteen errors have been assigned,- all of which have been examined and considered by the Court, and we are of opinion, that none of them- can be sustained. We only feel called upon to notice a few of the most prominent errors as-signed, and which were most relied upon in the argument.

In relation to the alleged alteration of the note, it is only necessary to remark, that if it required'any explanation, the evidence on the subject was before the Court who tried the issue, and we think it was sufficient, to justify the conclusion, that the letters-' were erased at the time-of the execution of the note. Nor can we perceive any weight in the objection, that the plea in abatement was never disposed of. The record recites, that the plea was confessed, and we see that the name of Brisbois was inserted’ in the declaration, as a defendant, and a scire facia'sissueá. to him.In this, the plaintiffs strictly pursued the course pointed out by the third section of our abatement act. Upon the filing of the plea in abatement, the plaintiffs forthwith- sued out a scire facias against Brisbois, and inserted his name in the declaration. By doing this, they, in effect,- confessed1 the plea in abatement, and1 avoided its effect, and it was not necessary to- take any further notice of it. The defendant who had not been originally sued, was now made a party to the record, and although the scire facias was not served upon him, still that could not impede the progress of the suit. That such should be the effect, is expressly provided in the fourth section.

The provisions of the fifteenth section, which were so confidently relied upon, do not apply to cases of this kind. They only apply to cases, where the suit had originally been com-menced properly, but in consequence of subsequent events, as-the death or marriage of the party, a change1 upon the record-has become necessary. Such cases are provided for by section five and those succeeding it, which require an order of the Court to make the new parties,^ and in these cases the suit cannot proceed till the new parties are served with process, or voluntarily appear to the action. And there is a manifest propriety in this. In the first case, there is already a party before the Court to be proceeded against, and who can not only defend his own rights, but who must necessarily, to the same extent defend the interest of the absent party, who, however, cannot be affected by, or made a party to the judgment rendered, until he is made a party to it by another scire facias actually served upon him, and he has an opportunity of making a defence. In the latter case there may be no party in Court to proceed against, and no one to defend the interest which he should represent.

Another objection was, that no formal judgment of respondeos ouster was entered,' upon the overruling of the demurrer. In the first place, the necessity for this was superceded by the express declaration of the demurrants, entered upon the record, that they would abide by their demurrer. But if this were not so, the objection is fully answered by the decision of this Court, in the case of Bradshaw v. Morehouse, 1 Gilman, 395. There, where the same objection was made, this Court said, “The mere omission of the Court to render a formal judgment of respondeos ouster, could not prejudice him. He was not denied the right of answering over to the declaration, but was at perfect liberty to do so. Refusing or failing to do it, the Court could only proceed to dispose of the case for want of a plea.” How much more so in this case, where the parties had expressly notified the Court that they would not answer over, but would abide by their demurrer.

Another objection is, that the damages were not assessed as against the parties who were in default for the want of a plea. When a suit is brought on an instrument in writing for the payment of money, and no issue is found, but a default is entered, the Court may either direct the clerk to assess the damages, or they may be assessed by the Court, without the intervention of the clerk.

Where an issue is found by one defendant, and a default is entered against others, the Court or jury who tries the issue, must assess the damages against the parties defaulted. In this case, the Court tried the issue, which was found against the defendant, when nothing remained to be done, but to compute the amount due upon the note, which was necessarily the amount of damages, to be assessed against all of the defendants, and for this amount judgment was entered against them. In this, there was neither error nor irregularity.

The last objection which we deem it necessary to notice is, that a general judgment for costs was entered against all of the defendants served; whereas each should be held liable for the costs which he had made. It would, no doubt, appear to be unjust, to tax a party who had made no defence, with a large bill of costs, which an obstinate co-defendant had made, without hope of success and against his remonstrance. But this judgment is entered in the form which has, in such cases, been universally adopted in this State, from its first organization, and we do not feel at liberty to change it. With us, a general judgment for costs is entered, without specifying the amount. They are subsequently taxed by the clerk, and if any party is dissatisfied with the taxation, he may replevy the fee bill, as is authorized by the statute, and thus bring the matter before the Court, for its decision. We express no opinion, whether the clerk could tax against each defendant, separately, the costs which he had occasioned, and issue a separate fee bill against each for their collection. When that question is brought before us we will examine it more attentively than we have done. It is enough for the present, that this judgment is in the proper form.

The judgment of the Circuit Court must be affirmed with costs.

Judgment affirmed.


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    William W. Low, Appellant, v. Samuel Freeman et al., Appellees.
    APPEAL FROM STARK.
    A contract by which A. agrees to sell eight hundred bushels of corn, more or less, within a specified time, at a stipulated price, does not give the vendee a property in the corn in question. Something remained to be done by the vendor to ascertain the exact amount sold.
    The remedy for a failure to perform, was an action for a breach of the contract Replevin will not lie.

      This was an action of replevin, brought in the Marshall Circuit Corirt, Low, the plaintiff below, took a change of venue ¡to Stark county. The action was founded upon the contract set out in the opinion of the Court. The defendants filed two pleas, first, that they did not wrongfully detain, &c.; second, property in themselves. The cause was tried before Kellogg, Judge, and a jury, at ¡November term, 1850. The jury found for the defendants, and a judgment was entered accordingly. Low moved for a new trial, which was denied, and he thereupon prayed this appeal.
    The sheriff who executed the writ, proved on the trial that he replevied two wagon loads of corn in Lacón, and the residue he took at the farms of the defendants. Low proved by another witness that he called upon the defendants for the corn, that they replied th# he was too late, that he did not come according to contract, -that this was on the ninth of August. That the Freemans complained that they had not been furnished with .sacks.
    ¡N". H. Pubple, for Appellant.
    .0. Petebs, for Appellee,
   Treat, C. J.

The foundation of this suit was the following contract: “We, Samuel Freeman and Elijah Freeman, has this day sold to Wm. W. Low eight hundred bushels of corn, more ,or less, at twenty cents per bushel, to be delivered at the mouth of Sandy, Opposite of Henry, or at Wm. Fenn’s warehouse in Lacón, if any thing should happen that Low could not get a boat to take it from opposite of Henry; to be delivered by the first of August next in merchantable good order, at the customary weight per bushel; received on this contract five dollars, and the balance of the money to be paid when all of the corn is delivered, Samuel Fbeemau.

“June 2d, 1849. Elijah Fbeemah.”

The Freemans failed to deliver any corn under the contract. On the 9th of August, 1849, Low sued out a writ of replevin, under which the sheriff seized two hundred and eighty-three bushels of corn; fifty bushels of which were taken from the Wagons of the defendants in Lacón, and the residue from the farm of Elijah Freeman. The plaintiff’s right to the property replevied was put in issue by the pleadings. On the trial, the Court instructed the jury in substance, that the contract did not vest the title to the corn in the plaintiff; and that ruling may be considered as presenting the whole merits of the case. We concur in opinion with the Circuit Judge. It is very clear that the written contract, by itself and without reference to the surrounding circumstances, did not show a sale of the property in controversy. The subject matter of the contract was corn generally, and not any particular lot of corn. The contract amounted at most to an undertaking on the part of the defendants, to deliver to the plaintiff eight hundred bushels of corn, at one of two places on the Illinois river, before a certain day, and at a stipu: lated price. It was in the power of the defendants to comply fully with their engagement, by the delivery within the time limited of that many bushels of corn, although they may have purchased the same after the contract was entered into. They agreed generally to sell, and the plaintiff to purchase, a given quantity of corn. The latter thereby acquired no property in the corn in question. It was insisted on the argument, that the contract should be construed as a sale of all the corn the defendants then had. We think otherwise. If that was the design of the parties, they certainly would have used very different and more definite expressions. The phrase “more or less” indicates no such intention. If any operation is to be given to these words, they must be understood as providing for any trifling variance in the amount of corn delivered. If on the measurement of the corn delivered, it should turn out that there were a few more bushels than the contract called for, the plaintiff might be bound to receive the excess; if on the other hand, a few bushels should be wanting, the mere failure of the defendants to make up the deficiency might not be considered a breach of the contract. Suppose the defendants had on hand at the date of the contract ten thousand bushels of corn, would it be contended that the plaintiff had purchased and was bound to take the whole? And suppose that between the making of the contract and the time fixed for its performance, this large amount had been destroyed by the elements, without the fault of the defendants, would it be contended that the loss should fall on the plaintiff? And these conclusions would inevitably follow, if the construction insisted on is correct. By this construction, if the defendants were the owners of but one hundred bushels of corn, they might by delivering that amount have entirely discharged the contract. If it was proper to construe this contract in the light of the circumstances disclosed by the evidence, the rights of the plaintiff would be precisely the same. It would as clearly appear that he acquired no title to the property in controversy. The corn in the possession of the defendants, when the contract was made, was unthrashed, and not in a condition to be measured. Labor had to be done upon it before it could be delivered. In such case the title would not pass to the plaintiff. “ Although a contract for the sale of goods be complete and binding in other respects, the property in them remains in the vendor, and they are at his risk, if any material acts remain to be done before the delivery, either to distinguish the goods or ascertain the price thereof.” Chitty on Contracts, 375. In any point of view, we are clearly satisfied that the plaintiff acquired no such interest in the corn in question, as would authorize him to maintain replevin for its recovery. His remedy was an action for the breach of the contract to deliver the corn.

The judgment is affirmed.

Judgment affirmed.


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    Isaac Walker, et al., Appellants, v. Joseph Ellis, Appellee.
    APPEAL PROM PEORIA.
    Where there is a tenancy for a period of more than one year, no notice to the tenant is required, in order to entitle the landlord to possession, upon the expiration of the first term.
    If a minor contracts to sell real estate, the contract cannot be enforced, if he refuses after his majority to sanction it.
    This was an action of forcible detainer, originally commenced before a justice of the peace, of Peoria county, and afterwards brought into the Circuit Court of said county, by appeal; and a trial was had at the September term of said Court, A. D., 1850; which trial resulted in a verdict and judgment against said plaintiffs in error, who were defendants below, for the possession of the property described in the petition.
    The petition stated in substance, that on the 8th day of July, 1845, Ellis leased to A. Van Bps, all that certain piece or parcel of land, lying on Main street, two lots above Mr. Pettingill’s new brick building on Main street, being twenty feet front, running back seventy-two feet from front to back part of said lot, for three years, commencing June 1st, 1845, and ending June 1st, 1848, for the consideration or rent of $15 per year; which lot is more particularly described as follows, (setting it out by metes and bounds,) and on which is a tinner’s shop. -
    That about 19th September, '1846, Van Bps died, and James Taylor was appointed administrator, &c.; and afterwards, and before said term expired, said Taylor, as administrator, assigned, sold, and transferred said lease and term to plaintiffs in error; and the plaintiffs in error, on the 14th of December, 1846, entered upon said premises, and held and occupied, have held and occupied, the same; and from thence, hitherto, have held and occupied the same as the tenants of defendant in error, and have acknowledged him as their landlord, and as such, have paid him rent. That on the 1st day of December, 1848, defendant in error demanded possession of said premises of plaintiffs in error, and notified them to quit, and deliver possession of said premises to defendant in error; which they refused, and still hold possession against the will of defendant in error; and charges forcible detainer, &c.
    At September term, 1850, plaintiffs in error moved the Circuit Court to dismiss said petition and suit, on the ground of the insufficiency of the petition; which motion was overruled. At said September term, 1850, said cause was tried before Kellogg, Judge, and a jury. Verdict and judgment for plaintiff. Evidence was, in substance, on the part of the defendant in error, as follows:
    Said defendant in error read in evidence a contract, in the words and figures following, to wit: “Peoria, Illinois, July 8, 1845. Articles of agreement, entered into this eighth day of July, 1845, between A. Van Bps on the first part, and J. Ellis, the second part, all of the town of Peoria. The said Ellis lets to A. Van Bps, a certain piece of ground, lying on Main street, two lots above Mr. Pettingill’s new brick building, being twenty feet front to back part of lot, for the term of three years, commencing on the first day of June, A. D„ 1845, and ending on the same date, 1848; for the consideration of $15 per year, with the taxes to be paid. Also, A. Van Eps has the privilege of buying said lot within one year, at the price of four hundred dollars, on trial from one to two years. The walk is to be brick, by J. Ellis. Signed, A. Van Eps, Joseph Ellis.”
    On the back of which, was the assignment of James Taylor, as administrator and guardian of the heirs of A. Van Eps, deceased, to plaintiffs in error, of all the right, title, and interest of the said Van Eps, deceased, to said contract and lot, dated December 9th, 1846.
    William Ellis also testified, on the part of the defendant in error, that he was brother of defendant in error; that Van Eps died in September, 1846; that plaintiffs in error went into possession of property in fall of 1846 or winter following, and have continued in possession thereof ever since; that the residence of defendant in error then, was Peoria. That soon after the date of v ' said contract, he went to Indiana, and did not return ’till June, 1848. Van Eps called on witness in summer of 1846, and enquired where defendant in error was; and said he wished to make first payment on the purchase of the lot; that he had the gold, and wished witness to receive it for defendant in error: that Van Eps frequently made the same request. Witness declined receiving the money, not being authorized to act for him. Van Eps then desired to know where the defendant in error was, as he wished to write to him; but witness could not tell him. After Van Bps’ death, about November, 1846, Taylor paid witness, for defendant in error, $15, as the amount due him on said agreement. Witness supposed plaintiffs in error went into possession under an assignment of said contract. Defendant was under age at time contract was made. He was born in 1825. That part of the time defendant in error was gone, from 1845 to June, 1848, his family did not know where he was.
    On the part of plaintiffs in error, James Taylor testified, that he was guardian of the heirs and administrator of the estate of Van Eps; that he was called by Ellis and Van Eps, in September, 1845, to witness their contract; at which time, at their request,, he signed his name as witness to the contract. Van Eps then agreed, at the earnest request of said defendant in error, to buy said property on the terms in said contract, and told defendant in error the money would be ready as it became due. This was agreed to by both. Van Eps was not to pay interest, but was to pay $15 per year till last payment would become due. The lot was then vacant. Van Eps built a house on it, and when witness assigned the contract to plaintiffs in error, he sold also the house, tools, &&, and all rights under the contract, whatever they were; and at the same time, witness told plaintiffs in error that Van Eps had elected to buy the lot under the contract, and it was agreed to by the defendant in error; and that the plaintiffs in error went into possession of said property, under said purchase from witness. That witness did recollect telling Mr. Ellis [the first witness] that he should not complete said contract of purchase; but did not recollect telling him, that he had been told by the probate justice that he could not as administrator fulfill said contract, and did not know that he had the power to do so, but never intimated that he had not the means to do so. That after Van Eps’ death, he found $100 in gold, in a package marked J, Ellis, among Van Eps’ effects.
    That soon after defendant in error returned in 1848, plaintiffs in error tendered to defendant in error the amount due for the purchase of the lot and interest; which he refused to accept, alleging he was a minor when contract was made. A previous fender of $100 was made and refused. Witness then asked him, if he was not of age when contract was witnessed by witness? and he said he was: he afterwards said, he was then mistaken as to his age. This was at last tender,
    H. O. Mérrimas, for Appellants.
    The lease took effect June 1, 1845, for three years, reserving annual rent; and the demand of possession was [not] made till December 1, 1848; and the petition, dated December 2, 1848, alleges, that “Defendants have hitherto occupied, &c.,” as tenants of Ellis. This is an allegation of tenancy or lawful occupancy, after June 1, 1848, and created a new tenancy for a year from that date: and the petition should have been dismissed.
    The proof showed that appellants occupied the premises for the time stated in the petition, by the acquiescence of the appellee; thereby creating such new tenancy: and the Court erred in refusing to give the instruction asked for by appellee. 4 Kent Com., p. 111, 112, 113, 114, 116; Jackson v. Salmon, 4 Wend., 327; Weller v. Shearman, 3 Hill, 549; Sherwood v. Philips, 13 Wend., 479; 6 B. & C. p. 125, in 13 Eng. Com. L. R. R., 118; Mashire v. Reding, 3 Fairfield, 478; Coffin v. Lunt, 2 Pick., 70; Conway v. Starkeweather, 1 Denio, 113.
    Appellants claimed under contract of purchase, and the rela'tion of landlord and .tenant did not exist; and a new trial should have been granted. Whitaker v. Gautier, 3 Gil., 443.
    Such holding over is not willful. Hall v. Balantine, 7 J. B., 536, and cases there cited; B. L., p. 256, sec. 1.
    E. N. Powell, for Appellee.
    The complaint is sufficient. It clearly shows, that the premises in question were demised by the appellee to Van Eps, for three years; and that appellants came into possession under the administrator of Van Eps, and as the tenant of Ellis, and paid him rent. It also shows that the tenancy had expired, and that demand had been made in writing for the possession; and that the appellants persisted in holding over.
    This is all that can be required. It does not require the same strictness as might be required, were it a proceeding originally brought in the Circuit Court. See Ballance v. Fortier, 3 Gilman, 291; Smith v. Kellick et al., 5 Gilman, 293.
    It is well settled that, in trials by jury, the weight of testimony is a question to be decided by the jury exclusively, and their decision cannot be assigned for error. And in order to warrant a new trial, it must b<& flagrant to justify a Court in disturbing the verdict. Johnson v. Moulton, 1 Scam., 532; Eldridge v. Huntington, 2 ibid, 538; Webster v. Vickers, 2 ibid, 296; Harmon v. Thornton, 2 ibid, 354; Lowry v. Orr, 1 Gil., 70, and authorities cited in the argument.
    If a tenant for a year hold over by consent, he then becomes tenant from year to year, (4 Kent, 112,) and becomes entitled t© notice to quit. But a tenancy from year to yearr cannot be created out of a tenancy for a certain and definite number of years. 4 Kent, 112, 113, 114, 115, 116 and 117; Rowan v. Lytle, 11 Wend., 616; McKay et al. v. Mumford, 10 Wend., 351.
   Caton, J.

The complaint in this case was abundantly sufficient.

On the trial, the plaintiff below introduced and proved a lease-of the premises in question to Tan Eps, for three years from the first of June, 1845, in consideration of fifteen dollars per year. The lease concludes with the following provision: “Also, A. Tan Eps has the privilege of buying said lot within one year, at the price of four hundred dollars, on time from one to two years.” The evidence shows that Ellis, soon after the execution, of the lease, left the state, and was absent until about the time of the expiration of the term; and that his friends did not know where he was. During the summer of 1846, Tan Eps called on a brother of Ellis, and inquired where he was, and said he wished to make a payment of one hundred dollars on the purchase of the lot, and wished the brother to take it; who, however, declined to receive the money, because he had no authority to do so. During the fall of 1846, Tan Eps died, and Taylor was appointed administrator of his estate, and guardian to his children, who Were all infants. In the fall or winter of 1846, Taylor, as such administrator and guardian, assigned the agreement to Walker & Lightner, who soon after took possession of the premises, which they held till the commencement of this suit. In the summer of 1848, and soon after Ellis returned to Peoria, the defendants tendered to him some gold, which.they said was the full amount due for the purchase of the lot; which Ellis refused to accept, alleging that he was a minor at the time the agreement was executed. The evidence shows, that he.was about twenty years of age at that time. A demand in .writing, for delivery of the possession of the premises, as is required by. the statute, was made on the first of December, 1848, and on the same day this suit was commenced. The jury found a.verdict for the plaintiff, which the Court refused to set aside;. and, we think, properly. No tenancy from year to year had existed in this case, which by the rule of the common law would entitle the tenant to a half-year’s notice to terminate the tenancy.. Here was a tenancy for a determinate period of more than one year; and no notice was required previous to the termination of that e lease, in order to entitle the landlord to the possession of the premises upon the expiration of the first term. Had the tenants, after that time, continued in possession for another year, with, the consent and approbation of the landlord, then a tenancy from year to year might be presumed; and which, according to the rule as held in England and many of the United States*. would continue from year to year, until one party should notify the other, six months previous to the end of the year, of an intention to determine it. This doctrine of notice has no application whatever to this case. Had there been evidence showing that the landlord had acquiesced in the holding over of the tenants, then the jury might have inferred a new lease, for a longer or shorter term, not exceeding one year, according to the nature of the evidence; and until the end of that term, this action could not be maintained. But there was no such evidence, and the jury have found no such new tenancy.

The only remaining question is, whether the appellants were entitled to hold as purchasers in possession, under the clause in the lease providing for the sale of the premises. It is clear that Van Bps took possession as tenann under the lease, and not as purchaser; and as the evidence stands in this record, it makes no difference whether he subsequently determined to purchase the premises or not, under the clause professing to give him that right, or whether he did such acts in performance as would entitle him to the benefit of it. At the time of the execution of that agreement to sell, if as such it may be considered, the plaintiff was yet a minor; and this record fails to show a single act done by him, after he attained his majority, which can be construed into an affirmance of the agreement. As before remarked, immediately after he executed the lease, he left the country, and did not return until about the time, or after the term thereby created had expired; and when the defendants, soon after, offered to go on and complete the purchase, he repudiated the agreement to sell, upon the ground that it was not binding upon him, for the reason that he was not of age when he made it. This, of itself, is a sufficient answer to the claim of the defendants to hold the premises as purchasers, laying aside all question of the authority of Taylor to sell and assign to them the agreement.

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

Judgment affirmed,.


author: Trumbull, J.

text:
    Hervey Lowe, Appellant, v. William S. Moss, Appellee.
    APPEAL FROM LA SALLE.
    The receipt by the owner of a part of a lot of goods in transitu, does not discharge a common earner from liability as to the remainder.
    The object of a bill of exceptions, is to place upon the record some fact, or ruling of the Court, which would not appear without it, and if it fairly presents the point sought to be raised, it is sufficient.
    If a common carrier is prevented, by ice or low water, from delivering goods, his liability to deliver them within a reasonable time, after the cause of detention is removed, continues.
    This was an action on the case for not delivering goods, received by Moss as a common carrier. Plea, general issue, with notice that Moss would prove that he was prevented by the act of God, from delivering the goods.
    Lowe proved the ownership of the goods, and their shipment on board of the boat of Moss, in good order and condition. That Moss stored the goods at Hennepin, (they having been shipped for La Salle,) without the consent of Lowe, and collected freight for the whole voyage. It was also in evidence, that 2278 pounds of sugar were destroyed while in store at Hennepin, that Lowe paid for the storage of the goods at Hennepin. Moss proved that he was prevented from reaching La Salle, by ice in the river. That Lowe, prior to the rise of water in the river, which destroyed the sugar at Hennepin, carried away a portion of the goods.
    The cause was submitted to T. L. Dickey, Judge, without the intervention of a jury, at April term, 1851, and judgment was given for defendant.
    A bill of exceptions was taken, setting forth all the evidence, which concluded as follows: “ And the said Circuit Judge, did then and there give his opinion, and decide that a receipt of part of the goods, by the plaintiff, prior to their being damaged, was a release of the defendant’s further liability, as a common carrier, and rendered a judgment in favor of the defendant, to which opinion of said judge, the plaintiff excepted, and made motion for a new trial, which was overruled by the said judge, to which decision the plaintiff excepted, and prays that this, his bill of exceptions, may be signed and sealed by the said judge, which is done.’’
    William Chumasero, for Appellant,
    cited Angel on Common Carriers, 282-3, 299 ; 14 Wendell, 217; 23 Wendell, 306; 4 Blackford, 260.
    Glover & Cook, for Appellee,
    cited 4 1ST. H. 261.
   Trumbull, J.

The plaintiff, a merchant of Joliet, shipped a lot of goods at St. Louis for La Salle, on board the steamboat Avalanche, of which the defendant was master, and this action was brought to recover damages, for a failure to transport and safely deliver the goods at the port of destination.

The record shows, that the goods, among which was a quantity of sugar, were shipped late in the fall, and that the Avalanche, in consequence of the ice, was unable to reach La Salle, whereupon the goods were stored at Hennepin, without the knowledge or consent of the plaintiff, that subsequently, and before any injury to the goods, the plaintiff took part of them away ; that the sugar remained in the warehouse, at Hennepin, till the July following the fall, when they were shipped, and in the mean time were injured by 'the high waters of the Illinois river, and that the defendant charged and received freight for the transportation of the entire lot of goods to La Salle. Upon this state of facts, the Circuit Court decided, that a receipt of part of the goods by the plaintiff, prior to their being damaged, was a release of the defendant’s further liability as common carrier, and gave judgment for the defendant.

This decision of the Court, which was excepted to at the time, is now assigned for error.

A preliminary question has been raised, that the case having been tried by the Court, without the intervention of a jury, no such decision of the Court, has been excepted to, as can be assigned for error.

The object of a bill of exceptions, is to place upon the record some fact, or ruling of the Court, which would not appear without it. The bill of exceptions, in this case, shows the decision of the Court upon which the case turned, and fairly presents the point sought to be raised by the plaintiff.

We are at a loss to perceive upon what principle, the receipt of part of a lot of goods in transitu, by the owner, should be held to release a common carrier from further liability, in reference to the balance of the goods.

It often happens, that a merchant, traveling upon the same steamboat, upon which he may have a quantity of goods, finds it expedient, in consequence of some detention which may have happened to the boat, from low waters or some other cause, to leave her and take a more rapid conveyance with such light articles of merchandise as he can conveniently take with him, and. it was never supposed, that in such a case, the owner of the boat was thereby discharged from his obligation to deliver the remaining goods at the port of destination, or from any liability for their safety, which might properly attach to him as a common carrier.

It may be that the common carrier, in such a case, would be entitled to the full price for the transportation of all the goods, notwithstanding the withdrawal of a part by the owner before they reached the end of the voyage, but it is clear that his liability for the goods remaining with him, would continue the same as if none had been taken away.

’ In this case, the freezing up of the river may have been a suf- \ ficient excuse for the non-delivery of the goods at La Salle, that 1 season, and the defendant may have been justified under the I circumstances in storing them at Hennepin, but his obligation to S deliver them at La Salle, within a reasonable time after the re- j sumption of navigation, still continued, unless the plaintiff had j agreed to receive them at Hennepin, or in some other way re- 5 leased the defendant from his original undertaking.

The fact, that the plaintiff took from the place where they were stored, part of the goods which would justify hauling by land, released the defendant from all future liability in reference to the goods thus taken away, but it would not of itself relieve him from his obligation to deliver the balance of the goods according to his original contract

It would be a great hardship, if a merchant who had a stock of goods detained upon one of our rivers, by ice or low water, within a few miles of his place of doing business, could not be permitted, at his own expense, to send for such articles as could be conveniently transported by land, without discharging the common carrier from all responsibility, in reference to the goods left with him.

Judgment reversed, and cause remanded.

Judgment reversed.


text:
    The Board of Supervisors of the County of La Salle, Pltffs in Error v. The Town of South Ottawa, Defts in Error.
    AGREED CASE FROM LA SALLE.
    The Board of Supervisors, in such counties as have adopted the township organization, are required to provide for the support of the paupers of the county.
    There is no foundation for a distinction between county and town paupers.
    The town of South Ottawa, brought an action in the La Salle Circuit Court, against the board of supervisors of that county, to recover the sum of one hundred dollars, for the support and care of a pauper, from June 1st, 1850, to March 25th, 1851. A jury was waived, and the cause was submitted to the Court for trial. T. L. Dickey, Judge, presided, the finding was for the plaintiffs, damages assessed at fifty-two dollars and fifty cents,, and a judgment accordingly. The defendants excepted to the finding of the Court. The following agreement was filed of record. “ It is hereby agreed that the only questions of law, arising in this case are as follows: Are the hoards of supervisors of those counties organized under the act entitled, “An act to provide for township and county organization, under which every county may organize whenever a majority of voters of such county, at any general election, shall so determine.” Approved, February 12th, 1849, required by that law to provide for the support and maintenance of paupers, or are the towns of such counties, required by the same law to support the paupers within their limits ? It is agreed also that La Salle county is organized under said act, and that the town of South Ottawa, is one of the organized towns of said county. It is further agreed that if the Supreme Court decide, that the Board is required by the act aforesaid, to support paupers, the judgment herein shall be affirmed, and if the said' Court decide that the towns are to support their own paupers, the judgment is to be reversed.”
    E. S. Lelahd, for PItffs in Error.
    Champlih & Wallace, for Deft in Error.
    Towns are not liable, at common law, for the support of paupers. 14 Mass. B., 399; such liability must be created by express statute.

      The statute of this State, have created created a liability in the county to support paupers. E. S. ch. 80, § 3, 4, 6, 7, 8, 12 & 15. This liability has not been changed by the township law of February 12, 1849. Art. 5, § 2; Art. 6, § 2 ; Art. 11, § 1; Art. 11, §5; Art. 16, §3 &13; Township law of February 12, 1849. These are all the provisions of the act of February 12, 1849, in any manner relating to the subject of paupers.
    It could not have been the intention of the legislature, that enacted the law of February 12, 1849, to change the liability of the county, and impose it upon the towns. The act of February 17, 1851, which remodels and repeals the act of February, 1849, contains the same provisions as the act of 1849. Session Laws, 1851, p. 85. That same legislature passed law requiring the towns of the counties of Lake and Tazewell, on certain conditions, to support the paupers within their limits. Session Laws, 1851, p. 183 & 195; Art. 11, §1 & 5, and Art. 16, §13, Township Law of 1849, are conflicting, and the latter section must prevail. Dwarris Stati, 658; 6 Dane’s Digest, 588, § 17, ibid, 591, § 8; 1 Kent’s Com., 463.
   Trumbull, J.

This case presents the question, whether the board of supervisors of such counties as have adopted the township organization, are required to provide for the support of the paupers of the county,' or whether each town is required to support its own paupers.

At the time the county of La Salle adopted the township organization, and at this time, in all counties where it has not been adopted, the poor are a county charge, for the support of which, the county commissioners’ court is required to provide. Unless, therefore, there is something in the act, providing for a township organization, which changes the burden of providing for the poor, from the county to the towns, it would seem that the county would still be required to make that provision.

That the act to provide for township and county organization, contains no direct provision, making it the duty of each town to provide for its own paupers, is admitted; but it is said that such a duty is inferrable from various provisions of that act. If this were so, it would be a sufficient answer to all such inferences to say, that the act makes no provision whatever, whereby the towns are to raise the means to support their poor. But the legislature have not left this question doubtful or uncertain. In the thirteenth section of the sixteenth article of the act to provide for township and county organization, in force April 16, 1849, it is expressly declared whose duty it shall be to provide for the poor. That section is as follows: “It shall be the duty of the board of supervisors to take charge of the poor, and the management of the poor houses in their respective counties, that is given to the county commissioners’ court, and the overseers of the poor of the several towns shall be accountable to, and their compensation shall be audited by the board of supervisors, and paid by the county.”

It is difficult to conceive how the legislature could more clearly have expressed their intention, that the hoard of supervisors should take charge of the poor at the expense of the county.

There is no foundation in the act for a distinction between county paupers and town paupers. Such a distinction had never, at that time, been recognized as existing in this State, and the plain, obvious meaning of the act is, that all the poor of the county shall be maintained at the expense of the county.

The judgment of the Circuit Court is affirmed.

Judgment affirmed.


text:
    Terah B. Farnsworth, impleaded, &c., Pltff in Error v. John Strasler, et al., administrators, &c., Defts in Error.
    ERROR TO JO DAVIES.
    It is the proper province of a court of equity, to remove impediments formed by fraudulent conveyances to the collection of money decreed in chancery, as well as of judgments at law.
    If, by a reasonable and natural construction, the meaning of the Sheriff’s return to a writ, is, that service was properly made, it is sufficient.
    If a bill is an-wered, the complainant may require the evidence he has advanced to be preserved in the record; but a defendant, who has allowed the bill to be taken for confessed, has no such right, it lies in the discretion of the Court to hear, if it chooses, corroborative testimony on any or all the allegations of the bill.
    If tiie Circuit Court appoint a special commission to execute its decree, it will be presumed to have done so for good reasons, whether they appear on the record or not.
    The right of redemption, does not extend to all sales made under a decree in chancery.
    This was a bill filed by the administrator and administratrix of the estate of Henry Schneider, deceased, showing that at April term, 1849, a decree obtained against Terah B. Farnsworth, ordering and adjudging that he should pay them in their representative capacity, $187 50, and costs of suit, for pay and compensation for a building and improvements, put upon lot twenty-two in the town of Galena, by said Schneider, in his life time. That an execution had issued upon said decree, and to which the sheriff returned that he could not find any personal or real property of said Farnsworth, on which to levy, except said lot twenty-two, upon which he made a levy. That on the thirtieth day of May, A. D. 1843, the said Farnsworth being seized in fee of said lot of land, for the pretended consideration of $5,000 00, executed a deed thereof to his sister. That afterwards, on the 22d of September, 1845, the said sister, being about to marry, the said sister and her intended husband executed a deed of conveyance, purporting to convey said lot to said Terah B. Farnsworth, in trust, for the separate use and benefit of his said sister. That immediately afterwards said sister married. That at all times since the conveyance, first aforesaid, by Farnsworth to his sister, he had been in the continuous occupation of said lot, receiving, using, and disposing of, as of his own right, the rents and profits thereof.
    That said Farnsworth, before and since the said conveyance, first named, was, and still is, insolvent. That he has no property out of which debts can be collected by law. That the said conveyances were made to hinder and delay his creditors. And prayed that the said parties answer, waiving answer under oath, and that the said conveyances be set aside, and for such other relief, &c., &c.
    The parties were summoned, the returns to the process, are stated in the opinion of the Court.
    The bill was taken for confessed. At May term, 1850, Sheldon, Judge, presiding, the Circuit Court of Jo Davies, decreed upon bill, exhibits and proofs of record, written and oral, that the said conveyances be set aside, and that the lot of land was subject to the payment of said decree. That said Farns worth pay the amount of said decree in sixty days, and in default thereof, the sheriff of Jo Davies, was appointed a special commissioner, to sell the same after giving twenty days notice, and upon making sale to execute a deed, after sale, to pay the decree and costs, and to hold any excess subject to the order of the Court.
    The respondents sued out this writ of error, assigning for error. The rendition of the decree. The decreeing the property to be sold, absolutely without any redemption. The appointment of a special commissioner. And that the returns of the service of process were so defective that a decree pro confesso, should not have been rendered.
    B. S. Blackwell, for Pltffs in Error.
    The service on Frink and wife defective. R. S. 94, § 7; Montgomery v. Brown, 7 Illinois, 581. There is no specific allegation of fraud on the part of Frink and wife. Elston v. Blanchard, 3 Illinois, 420. Hovey v. Holcomb, 11 Ill., 660. The bill does not make exhibits of the fraudulent deeds. 1 Daniel’s Ch. Prac., 475. Bedemption ought to have been allowed. B. S., 302, §12, 13, 14.
    The evidence upon which the Court based the decree, is not incorporated in the record. R. S., 95, § 19; White v. Morrison, 11 Illinois, 361.
    The decree ought to have directed a sale by the master, or some excuse should be shown upon the record, why a special commissioner was appointed. B. S. 99, § 51.
    Y. H. Higgins, for Appellees.
    Cited, 3 Scammon, 575, 204; 3 Gilman, 523; 1 Paige, 304; 2 Paige, 54; 2 Blackford, 421; 1 Littell, 302 ; 9 Wendell, 548. 6 Ham., 233 ; 3 Paige, 320; 5 Blackford, 396; Story’s Eq. PL, §429; 6 Monroe, 82; 7 ibid, 263; 3 Paige, 606; 11 111., 665.
    As to term “charges.” Cooper’s Eq. PL, 6 Lube’s Eq. PL, 207; 1 Dun., Ch. Prac., 377, and note 2; ibid, 411 and notes; Story’s Eq. PL § 28. As to necessitjr of preserving evidence. 4 Gil., 517; 3 Gil., 547. As to right of redemption. B. S., 805, § 24; ibid 93, § 44, 45. Party complaining of an error must show that he is prejudiced thereby. 3 Blackford, 331; 4 Gil., 516; 3 Gil., 76; 5 Gil., 26. Beference to the deeds on record was sufficient. 1 Duncan’s Ch. Prac., 414, and 420.
    Farnsworth alone prosecutes this writ of error, does not lie in his mouth to object. 4 Gil., 516; 3 Blackford, 331. As to right of redemption. R. S., p. 305, § 24; 1 Gil., 574. The service of process was good. 2 Howard’s Miss. R. 683; 2 Scam., 18, 457.
   Caton, J.

It is first objected that this bill is insufficient. This objection is not well taken. The bill alleges that at the April term, 1849, of the Jo Davies County Court, the complainant obtained a decree against the defendant Farnsworth for the the sum of $187 50, upon which an execution was issued which was levied upon the premises described in the bill. The bill further alleges that in May, 1843, Farnsworth conveyed the premises to Harriet Farnsworth, and that in September, 1845, Harriet and the defendant Frink, being about to intermarry, conveyed the premises to T. B. Farnsworth, in trust, for the separate use of the said Harriet, immediately after which, the said John and Harriet were intermarried. The bill further shows, that at the time of the first conveyance, and ever since, T. B. Farnsworth was, and hath been utterly insolvent, and that all of said conveyances were made to defraud his creditors. The bill prays that the conveyances may be set aside, and that the premises may be sold for the payment of the amount due to the complainants upon their said decree, and for general relief. Here are all of the essential averments of a creditor’s bill. Such a bill may as well he filed to aid in the collection of money decreed in chancery, as of a judgment at law. By our statute, an execution may be issued for the collection of the one as well as the other. Here were.fraudulent conveyances, which were impediments in the way of the collection of the amount commanded to be made by the execution, to remove which, is the proper province of a court of equity. The bill was sufficient.

It was next objected, that the summonses were not properly served on the defendant. To the one issued to the sheriff of Jo Davies county, he returned it with this endorsement, executed the within, by delivering a certified copy to the within-named Terah B. Farnsworth, this twenty-fifth day of July, A. D. 1849,” &c. The service was abundantly sufficient. The whole return taken together shows that the sheriff left a certified copy of the writ with the defendant. That such was the reasonable and proper construction of the return, we have no doubt. Words may be implied in an officer’s return, as well as in other written evidence, where such implication is justified, by what is expressed. By the same rule, we find the service to have been suffi.cient on Frink and wife. The sheriff of Cook county returned the summons which was directed to him with the following endorsement on the back, “ executed by reading and delivering two copies to John Frink and Harriet Gr. Frink, this 29th day," &c., although this return is not quite as full as the first, still it leaves no doubt as to its meaning. We cannot understand that any thing but the writ upon which the return was endorsed was executed. If the writ was not thus executed, the parties could maintain an action for a false return against the officer. All of the defendants were properly in Court, and the bill was regularly taken for confessed, against them.

It was also objected, that the evidence which was heard by the Court, not being preserved in the record, it does not appear that there was enough to warrant the decree. It has been already decided by this Court, in the case of Manchester et al. v. McKee, et al., 4 Gilman, 511, that where a bill has been regularly taken for confessed, it cannot be assigned for error, that the averments were not proved. The party cannot be allowed to deny, what he has, in contemplation of law, confessed to be true. But it was said that inasmuch as the Court did require proof, it manifested a determination not to proceed upon that confession, and that when proof is required,—when the Court has determined to proceed upon the proofs, then they should appear to have been sufficient. But the right of the Court to act upon the admissions of the parties, is not abandoned because corroborating proof is required. The Court may have desired to have heard proof upon some of the allegations, and not upon others. The amount of corroborating proof to be required, was within the discretion of the Court. The Court might require ail the allegations'll the bill to be proved, the same as if they had been denied by an answer, but it was certainly not bound to require proof to that extent. It might even listen to evidence not strictly admissible, had ah issue been formed, and yet the positio i of the parties, would preclude them from objecting to it. The whole was within the discretion of the Court. It is true, that in a case where the complainant does produce legitimate evidence, sufficient to maintain his case, had the allegations of his bill been denied by an answer, then that discretion closes, and he is entitled to a decree, and it would be error in the Court to refuse it. In such a ease, and in such only, would it be the duty of the Court, on the application of the complainant to preserve the evidence in the record. But the defendant, who has allowed the bill to be taken as confessed, can never require this to be done.

We cannot say that the Circuit Court erred in appointing a special commissioner or master, to carry the decree into execution, although it was business properly appertaining to tire duties of the resident master in that county, yet the Court was vested with the authority to appoint the special commissioner, to-execute the decree, and we will presume that this change, from, the ordinary course, was made for sufficient reasons, and the Court was not bound to spread those reasons upomthe record.

The last objection which was made, is, that no redemption was allowed from the sale which was ordered to be made by the decree, and in support of the objection, our statute, which allows the same redemption from the sales of mortgaged premises, upen the foreclosure of the mortgage, which is allowed from sales made upon executions at law, was cited. This statute only applies to the class of sales mentioned in it, and we are not at liberty to extend it by construction to all sales made in pursuance of a decree of a court of equity. The Court having acquired jurisdiction of the matter, was authorized to do complete justice between the parties, by ordering the premises to be sold to satisfy the amount due upon the former decree, and the considerations of clemency, which induced the passage of that statute, do not exist where premises have been covered up for many years by fraudulent conveyances, and kept from the reach of creditor's.

The decree of the Circuit Court must be affirmed, with costs.

Decree affirmed.