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    The City of Alton, Pltff in Error, v. The Illinois Transportation Company, Defts in Error.
    ERROR TO MADISON.
    A construction which requires that an entire danse of a deed should be rejected’ will not be adopted, except from unavoidable necessity.
    When a deed refers to a plat, which has upon its face that to which the expressions of the deed can apply, the court will connect the two, rather than reject the words of the deed.
    If a deed will admit of two constructions, it should he construed against the grantor.
    Public rights are not barred by our statute of limitations, which requires certain real actions to be brought within seven years after possession taken by a defendant.
    When lots are dedicated to the public for particular purposes, they may be improved and controlled for such purposes, but they cannot be aliened or sold, nor has a city the exclusive use thereof.
    This is an action of ejectment to recover possession of an easement in a lot in the city of Alton, brought by the city to try the right of the public to the same as a public highway, landing or common, dedicated to the public use,—described as that lot which is embraced within the following boundaries, to wit: Beginning at a point on the South side of Front street, in said city, 120 feet West of the West side of Easton street, in said city; thence on the said South line of Front street, Westwardly, 120 feet; thence Southwardly, along the East line of Alby street, extended to the Mississippi river; thence down the line of said river, 120 feet; thence Northwardly, to the place of beginning.” The defendants filed the plea of Not Guilty, &c.; and thereupon, a statement of facts in the case, agreed upon by the parties, was filed, and the same was submitted to the Court for its decision The f acts thus agreed upon, are substantially as follows, to wit:
    1st. That fr. Secs. 11 and 14, T. 5 N., R. 10, W., were patented to Rufus Easton, on the 16th of June, 1850.
    2d. That on the 1st of June, 1818, Rufus Easton, claiming to be sole owner of said land situated in Madison county, Illinois, made a plat of the same by the name of “ The town of Alton,” which is made a part of the record, as Exhibit (A); which plat, together with the memorandums of the same, was duly recorded • on the 4th day of April, 1818, in the Recorder’s office for said county.

      3d. That subsequent to the recording of the plat, William B. Whitesides, James Reynolds, and others, claiming an interest in these lands, commenced a suit against Easton, concerning the same; and it was compromised by the parties, by Easton’s executing and delivering to said Whitesides and Reynolds, February 25, 1821, a deed of conveyance, which was duly recorded on the 11th of December, 1821, for certain lands and lots in and at said Alton, and in said fractional section 14.
    By said deed, Easton sold and conveyed to Reynolds and Whitesides, in fee, 80 acres, adjoining said town, and in said Sec. 14, expressly referring to said plat of the town of Alton, theretofore laid out by him, and recorded as aforesaid; also 107 lots laid down on said plat and embraced in the limits of said town, among which lots are Lots 3, 4 and 5, in Block 4; Lots 5 and 6, in Block 6; Lots 3, 4 and 14, in Block 7; Lots 1, 8 and 18, in Block 8 ; Lots 3, 6 and 7, in Block 13, &c., and “ all things of right thereto appertaining.’’ In this deed, Easton reserves to himself, his heirs and assigns, the exclusive right of ferrying across the Mississippi river to and from said lands; and therein said Easton expressly “ covenants and agrees, that all the Lots for public, scholastic and religious purposes, for a public landing, or any reservations of common, Fast of the Fountain creelc, as designated on the plat aforesaid of said town; and, particularly, the band that lies between Front street and the river Mississippi as designated in said" plat, fronting on the river between the said Fountain creeh and Henry street, shall be andforever remain a public landing place, and shall be and remain for the use of the public as designated on said plat, excepting and reserving to said Rufus Faston and his heirs, forever, the exclusive right of a ferry or ferries, on and from said land so made common.” Said deed contains covenants of warranty against the title and claims of Easton or his heirs, and others claiming under him or them—and states, that “ It is explicitly understood and expressly agreed, by and between the parties aforesaid; that they had conflicting claims or titles to said lands and lots, and that for the purpose of compromise, they, the said parties, agreed to mutually relinquish one to the other, the part allowed to him or them, in the compromise; and that said deed is the relinquishment of the said Easton, on his part, to the said Whitesides and Reynolds, their heirs and assigns, to the whole of the lands thereby conveyed,” &e.

      And as part of said compromise, by said Whitesides and Reynolds, and their respective wives, on the said 26th day of February, 1821, executing and delivering to said Easton, their joint deed of conveyance of the date last named, wherein, in consideration of $1, and also “For and in consideration that the said Rufus Easton had, by his deed of that date, conveyed and released and relinquished, to the said Whitesides and Reynolds, certain lots and parcels of land in that” (Easton’s) deed mentioned and described, they sold and conveyed, &c., to said Easton, and to his heirs and assigns, forever, the following described lands, in said county of Madison, to wit: describing that part of fr. Sec. 14, lying East of Henry street, and part of the S. E. qr of Sec. 11, containing 200 acres, more or less ; and the whole of S. W. qr of Sec. 12; all in town 5 N., R, 10, W., containing 100 acres, with the appurtenances, &c., with “ the license and right of ferrying to and from the same, obtained by said Whitesides and Reynolds and one Robert Sinclair, or that of all or either of them,” with covenants of warranty that they had not granted away the land thus conveyed; providing, however, and excepting from the operation of said deed of them, all or any of the lots in the town of Alton, mentioned and contained in the deed above referred to from said Easton to said Reynolds and "Whitesides, specifying them as they are specified and described in said Easton’s deed to them, according to the plot of said town of Alton, made by said Easton, and recorded as aforesaid; which plot as recorded, the said Whitesides and Reynolds, for themselves, their heirs and assigns, do thereby ratify and confirm in every particular; but said presents, it was expressly declared therein and thereby, were “not to be construed to convey to, or vest in, said Easton any exclusive interest in any of the streets, lots for public or scholastic or religious purposes, for a public landing, or any reservations of commons to the Fast of Fountain creek, in said town of Alton, as designated on the plat of said town; but that all the ground from the public landing inclusive, as designated on said plat, to Renry street, and that lies between Front street and the river Mississippi, should forever be and remain a public landing, for all persons whatsoever, except for a ferry landing; which right of a ferry landing was to be and remain in,the said Rufus Easton, his heirs and assigns exclusively, forever.”
    In said deed it is also recited that, at some time theretofore. said Easton had, by a power of attorney, authorized Lewis Beck to sell all the lots of ground in the deed enumerated, as also some others mentioned and situate in said town of Alton, as plotted by said Easton and recorded as aforesaid; and said Reynolds and Whitesides covenant to confirm and ratify the sales then made, or which may be made by the 1st day of April next following, by said Beck, under said authority. Reynolds and Whitesides also covenant against all claims or titles derived through or under them or either of them. The deed last named has also this clause, to wit: “And it is further explicitly understood and expressly agreed by and between the parties, that they had conflicting claims or titles to the land and lots therein expressed; and that for the purpose of compromise, the parties had agreed to mutually relinquish to the other of them the part allowed to him in the compromise, and that the said deed is the relinquishment, on the part of said Whitesides and Reynolds, to the said Easton, to the whole of the lands thereby conveyed by said Reynolds and Whitesides to said Easton;” provided, however, they were to be subject to the damages provided for in said deed in case they did not purchase back whatever of the lots and land therein mentioned and which they might have sold, &c., as before duly recorded April 10, 1821. Subjoined to the last mentioned deed is the written assent under seal of Nathaniel Pope, John Reynolds, Joseph Conway, John D. Cook, and Ninian Edwards, and their surrender to Easton, “ all claims and pretensions, which they might or could assert to the premises” in said deed “ granted and conveyed.”
    That the grantors and grantees of said deeds together held all and every claim or title to said lands, except the rights thereto vested in the public by the making and recording of the plat of the town of Alton, within mentioned, and expressly recognized by the parties to said deeds, whatever they may be ; but the defendants contend that the land in plaintiff’s declaration described is not so recognized, while the plaintiffs contend it is so recognized, and that by the execution and recording of the same plat and deed, a perfect title to the lands respectively therein described, was vested in the several grantees therein mentioned.
    4th. That on the 20th of Sept., 1821, the bank of Saint Louis recovered judgment against said Easton for §1,149 debt, and §91 92 damages and costs. That on the same day, Wm. Russell obtained a judgment against said Easton for $957 18 debt, and $26 51 damages and costs, both in the Madison Circuit Court, and executions were issued thereon, and the lands first within described, with other lands, were levied on; and that by virtue of the two executions thus issued—one on each'of said judgments—Wm. B. Whitesides, then Sheriff of said county, advertised on the 8th of February, 1822, that he should expose to public sale, at, &c., on the ^d of March then next, all the right, title, and interest of said Easton to the following property, to wit: fr. Secs. 14, 11, 12, and 13, T. 5, N., R. 10; also fr. Sec. 18, T. 5, R. 9, W.; on which lands and a horse ferry boat at Fountain Ferry on the Mississippi, the Sheriff certifies that he levied on the 4th of January, 1822; that the lands were appraised as therein stated, and the sale advertised and postponed three several times; that the ferry boat was sold on the 18th of January, 1822, the time fixed for the sale, to Archibald Gamble, for $110, and the whole of the lands on the 2d of March, 1822, were sold to said Gamble for $1,415 46, he being the highest bidder; and,
    5th. Thereupon, the Sheriff executed to said Gamble a deed of conveyance for the lands last above described, except a part of fr. Sec. 13, only 98 72-100 acres of which were conveyed; the remainder of said section being claimed by Charles W. Hunter; which last deed is dated on the day and .year aforesaid; and is as are the other deeds, copied at length into the record, and was recorded Jan. 14,1823.
    6th. That on the 6th of January, 1825, Rufas Easton executed a deed of conveyance of that date to said Wm. Russell, whereby said Easton, for the consideration of $3,451 paid by Russell to Easton, conveyed to Russell, in fee, all his estace, right, title, interest, property and demand in and to said fr. Secs. 14, 11, 13, the N. half of 12, T. 5, N., R. 10, W., with the houses, buildings and other improvements thereon, containing 1,331 15-100 acres; also, the whole of fr. Sec. 18, the N. fr. half of Sec. 19, and the N. W. qr. Sec. 20, all in T. 5, N., R. 10, W., containing 972 29-100 acres, without any recourse whatsoever on said Easton for any damage or demand, should the title to said lands fail, &c.; which deed was duly recorded Nov. 10, 1829.
    7th. That on the 6th of July, 1826, Archibald Gamble and Iris wife executed to said Russell his deed of assignment, as it is called, whereby, in consideration of $2,075, at the entire risk and hazard of the said Russell, and without recourse on Gamble for any damages, demand or claim whatsoever, should the title to the land therein described prove defective or wholly fail, said Gamble and wife conveyed to Russell, in fee, all their estate, right, title, interest, claim, property and demand in and to the lands described in the deed last above of Easton to Russell, excepting, however, from the said conveyance and sale, the East half of Mode number Eighteen, (18), in the town of Alton, laid out on said fr. Sec. 14; all being the same lands which were conveyed by the Sheriff of Madison county to said Gamble, by the deed of March 2d, 1822, above referred to. This deed was acknowledged the 25th of March 1828, and recorded June 6, 1828.
    8th.. That on the 10th of April, 1828, Abiel Easton, wife of said Rufus Easton, and said Rufus Easton, executed to William Russell their deed of conveyance, wherein is a recognition of the above-mentioned deed of Easton to William Russell, of the 6th of January, 1825, for the lands therein described—and a sale by said Abiel, for the consideration of $600, of all her right, title, interest, &c., in and to those lands, tenements and appurtenances, “situate,” as is said, “in and near the town of Alton, in the county of Madison, and State of Illinois.” This, like the former deed from Easton alone to Russell, expresses the sale to be made “ at the risk and hazard” of Russell; this was on the 10th of April, 1838, acknowledged by said Abiel, and on the 14th of April, in same year, by Easton, and recorded June 5th, 1828.
    9th. That on the 7th of June, 1828, Russell executed to Gershom Flagg a deed of conveyance of that date, whereby, for the consideration of $400, he granted, bargained and sold to Flagg, in fee, the following described lots of ground or parcels of land, described, bounded, &c., situate in the town of Alton, in said Madison county, as the same is laid off upon fr. Sec. 14, T. 5, N., R. 10, W., and which lots thereby conveyed were described as “ The whole of block (or an irregular square) numbered one, (1), on the plot of said town of Alton, bounded on the North by Second street of said town, on the East by Alby street, and on the Southwardly and Westwardly side and end by Front street, and by an open space of ground called “ the Public Landing,” at the South end of Market street, as the said block numbered one is represented on the plat of said town of Alton, of record in the Recorder’s office of said county of Madison.” “ Also, one other lot of ground in the said town of Alton, of precisely forty feet from West to East, and about 60 feet long, more or less, from North to South; this being the upper and Westwardly end of a large lot in said town, marked, ‘Reserved,' on the aforesaid plot of said town.” This deed contains full covenants of warranty of title in Russell, &c. This deed to Flagg was duly recorded on the 9th of June, 1828.
    10th. That on the 13th of March, 1834, said Flagg and Jane his wife, reconveyed to said Russell the last described lot of ground, in said town of Alton, for the consideration of $170, without warranty, except liens created against it while Flagg professed to own it, and at the risk in all other respects of said Russell, and “ without any recourse whatever to said Flagg or his heirs, if the title should otherwise fail to be good;” which deed was recorded March 17, 1834.
    11th. That on the 17th of July, 1832, Wm. Russell executed to Isaac Prickett a deed of conveyance of that date, whereby, for the consideration of $150, he “ sold and quit-claimed to Prickett, and to his heirs and assigns, forever, a certain lot in the town of Alton, in Madison county, 111., as the same had been laid off upon fr. Secs. 11 and 14, T. 5, N., R. 10, a plat of which town is recorded in the Recorder’s office of said county; which lot thereby granted, is 240 feet large from East to West, by about 140 feet large from North to South, more or less, and is specially bounded in said deed as follows, to wit: “On the North by Front street of said town, and fronts 240 feet to the same; on the South by the Mississippi river; on the East by Easton street of said town; and on the West by Alby street, as the same has been extended by said Russell to said river, with the appurtenances,” &c.
    “ This deed,” (in .the words thereof) “ being made with the following express and positive limitation, to wit: That said Prickett, being well and fully acquainted with the said Russell’s right and title to the above described lot hereby conveyed, takes the right and title of the said Russell to said lot at the entire risk and hazard of him, said Prickett, and without any recourse whatever to said Russell, or his heirs or representatives, for, either consideration money, or costs or other damages, on account, of this deed, in case the title to said lot should in any part, or altogether, fail, or prove bad, in law or equity,—as evidence of all of which, the said Prickett accepts of and receives this deed, with this special clause, and in its present form.” This deed was duly recorded July 17, 1832.
    12th. That on the 13th of Oct., 1835, said Prickett and his wife executed to James • Semple a deed of conveyance of that date, wherein, for the consideration of $600, said Prickett and Haney his wife, sold and quit-claimed to said Semple a part of the lot described in the deed last above referred to of Wm. Russell to said Prickett, and being 150 feet front on Front street, and running back to the Mississippi river; being a part of the land reserved by said Easton in laying off the said town of Alton, and immediately below and adjoining Alby street, as extended through the said reserve land by Wm. Russell, and bounded on the East by a lot conveyed by said Isaac Prickett to David Prickett, with a clause and limitation in the same words and to the same effect with the one above quoted from the last above mentioned deed from said Russell to Isaac Prickett. This deed was recorded in the office of the Recorder of said county, on the 31st of Oct., 1835.
    13th. That on the 20th of Feb., 1847, said James Semple and Mary S. his wife, executed their deed to George 0. De Kay, of the city of Hew York, in the State of Hew York, whereby, for the sum (as in said deed expressed) of $13,000, said Semple and wife conveyed, in fee, a large number of tracts, parcels, and ■ lots of land, situate in said Alton, among which is conveyed “all the right, title, and interest which said Semple then had or possessed, in and to any and every part of what is known as the 1 Reserve,’ in the city of Alton, situated between Front street and the Mississippi river, and between the ‘ Public Square,’ at the mouth of the Little Piasa creek, and the 1 Common or Promenade,’ at the Eastern end of the original plat of Alton," together with all the buildings, houses, and improvements, &c., reversions and remainders to the same. This is a deed without any covenants of warranty, and is recorded March 13th, 1847.
    14th. That on the 22d of April, 1847, said George 0. De Kay, by Washington T. Miller, describing himself as said De Kay’s “ Attorney in fact,” (but no power of attorney to said Miller, or evidence to act as such attorney, is found in the record,) executed to “ The Illinois Transportation Company,” his deed of conveyanee of that date, whereby, for the consideration therein expressed, of§75,000, he “granted, bargained, and sold” unto the said company, their successors and assigns, numerous lots, and tracts of land, among which are those contained in the last mentioned deed of said Semple to De Kay, and his interest, &c., in the last above described lot of 120 feet front on Front street, in the city of Alton. This deed was acknowledged by said Miller, April 22d, 1847, arid recorded October 30, 1847.
    15th. That the town of Alton was incorporated May 14, 1832.
    16th. That the city of Alton was incorporated July 21, 1837, and reference is made to the act of incorporation.
    17th. That immediately after the deed from Prickett to Semple, he, Semple, went upon the premises described in plaintiff’s declaration, and erected thereon a two story frame house, which was finished in 1837, and so Soon as the house was built, Semple rented the lot or piece of ground upon which it stood, and said Semple and his grantees have continued to rent same house and lot and collect the rents, until the present time. That the tenants have had uninterrupted possession of the house as a residence; but the lot has never been enclosed or occupied by such tenants exclusively, and during the whole time of such tenancy, steamboats, fiat boats, rafts, &c., have from time to time, landed upon the river side of the same, and the materials, freights and loading, &c., have been landed and carried across said lot by persons generally, and freight and lumber and loading have been continually carried from below up and from above down across the rear end of said lot, without obstruction or interruption, in the same manner as freights and loading, &c., &c., have been landed upon the river side of the land marked on the plat of Alton as “ Common or Promenade,” and hauled across said commons, as also across vacant lots in Alton, and such use of the public, since 1835, has been with the knowledge that James Semple, and those claiming under him, claimed said property as private, and insisted that it was not public property; and said Semple or his assigns have never given any assent to their rights so to do.
    18th. That the town authorities of Alton, during the existence of the incorporation of the town of Alton, and the authorities of the city of Alton, since its incorporation as a city, have ever claimed an easement in, and the enjoyment of the land described in the plaintiff’s declaration, as a part of the public landing, or public grounds, and have ever refused to tax the same; hut have never improved the same.
    19th. That, up to the years 1834 and 1835, there were hut few inhabitants in said Alton, and it has not hitherto been necessary to improve the said lot for a public landing, to supply the business wants of the city and of the public; hut its situation is such as to render it susceptible of improvement for that purpose.
    20tli. That said Wm. Russell holds among his title papers the aforesaid deed of Wm. B. Whitesides and others, to Rufus Easton, within named.
    21st. That one Thomas Gr. Hawley would testify that said Rufus Easton, during the year 1821, told him, that he wished to " sell him lots in block 1, on the plat within named, and spoke of them as lots fronting on the “Public Landing.” They were lots fronting on the upper part of the upper lot, marked on the plat of said town of Alton, “Reserve.” This evidence is to he rejected, if the Court consider it illegal.
    22d. That said G-ershom Flagg would testify, that after said Wm. Russell sold him the lots named in the deed of said Russell to said Flagg within named, he said Russell stated, he owned the whole of the property, (meaning lots marked on the plat “Reserved,”) and that he, Russell, did not know that there was any question of his title, at the time he sold to Flagg, and for some time after; but having heard there was a question as to his title, he wished to retake the property, and he did, by deed of Flagg to Russell, he, Russell, paying the original consideration, $70, to Flagg. (This evidence is to be rejected, if the Court consider it illegal.)
    23d. That from 1818 to 1835, when Semple built, the property was unoccupied, like other vacant property, and there were no inhabitants upon it.
    24th. The land described in the plaintiff’s declaration is a part of the land marked “Reserved,” on the plat above named, and is in the possession of the defendants.
    It was further agreed, that the defendants should waive process, and enter their appearance herein, and plead the general issue, and submit this cause to the Court upon the above agreed statements of facts; stipulating with each other, that the original plat and deeds within named, or certified copies of the record of the same, or the original records, might be introduced by either party, subject to comparison of the original with the record; and that, if from the whole of said agreed statement and the law arising thereon, the Court is of opinion, that the city of Alton aforesaid is entitled to enjoy and exercise jurisdiction over said land in plaintiff’s declaration mentioned as part of the public landing place, or for public purposes, then the judgment is to'be for the plaintiff; otherwise for the defendants; that no objection should be made to the form of action or the form of pleading; and either an appeal or writ of error should lie from the decision of the Circuit Court to the Supreme Court; and that the defendants in such appeal or writ of error, should appear without the service of any summons—and that the decision of the Supreme Court should be upon the jooints of law arising upon the within statement of facts, waiving any objection which might arise to the form of action, as to the legal title in fee not being in the plaintiffs, if they or the public are entitled to enjoy the easement in the bous in quo, as a public landing place or as public grounds; and at the Circuit or Supreme Court, the defendants might raise any questions of-law (except as to the fee in the lands as above) arising from the above agreed statement of facts, the same, as if especially pleaded.
    The case was heard and decided at the August term of the Madison Circuit Court in the year 1850, Underwood, Judge, presiding, in favor of the defendants; and the plaintiffs have brought the case into this Court, and the plaintiffs make the following-points :
    D. J. Baker and E. Keating, for Pltff in error. -
    The law prescribes no particular form or manner for the dedication of land to public uses, provided the intention of the owner of the land to dedicate it to such uses be satisfactorily established by evidence, and no particular description of evidence is required to prove such intention. Dedications of land for public purposes have frequently come under the consideration of the Courts of this country; in the case of The City of Cincinnati v. The Lessee of White, 6 Peters, 431, 504, the question is fully discussed; 3 Kent, 450; Town of Pawlet v. Clark, 3 Con. R., 408 and seq.; City of Cincinnati v. White, 6 Peters, 431; Brown v. Manning, 6 Ohio, 303; Watertown v. Cowen, 4 Paige, 410; Hobbs v. Lowell, 19 Pick., 405; 7 Ohio, 217; 9 Ohio, 80; 3 and 4 Dev., 242; . 1 Strange, 95; 3 Kent, 450; 19 Wend., 128; 1 Hill, 189, 191; 17 Pick., 309. In order to dedicate property for public use, it is not essential that the right to nse the same shall be vested in a corporate body. It may exist in the public, and have no other limitation than the wants of the community at large. The City of H. Orleans, v. H. States, 10 Peters, 6G2; 2 Peters, 256. In the case of Barclay et al. v. Howells Lessee, .6 Pet., 504, the Court held, that the “declarations of the surveyor, who was authorized by the owner of the land, to fix upon the plan of the town and survey it, made at the time of surveying and completing the plan of the same, became a part of the res gesta; they wore explanatory of the act then being done, and as such, were competent evidence to charge Ms principal.” In the case of Hunter v. The Trustees of Sandy Hill, 6 Hill, 411, the Court say: “The law which governs the dedication of property to the public use, is anomalous; under it, rights are parted with and acquired in inodes and by means unusual and peculiar. Ordinarily, some -conveyance or written instrument is required to transmit a right to real property; but the law applicable to dedications, is different. A dedication may be made icitkout writing; by act in jpais, as well as by deed.” 2 Smith’s Leading Oases, 180, and cases cited. The act of throwing open the property to the public use, without any other formality, is sufficient to establish the fact of a dedication to the public. Dedication may be presumed from length of time; and the period required by the Statute of Limitations to bar a right, would, from analogy to that Statute, be sufficient, though so long a time would not always be requisite. Hunter v. Trustees of Sandy Hill, 6 Hill, 413; 3 Kent, 450-1, and note a. In the case of Trustees of Watertown v. Cowen, 4 Paige, 510, it was held, that “a public square is dedicated in the same manner as a street; that the egal title did not pass from, the original owner;” the Court considered “the corporation as the proper representative of the equitable rights of the inhabitants of the village, to the use of the public square, so as to authorize the filing of a bill in chancery by the corporation to protect those equitable, rights against the erection of a nuisance. The case of Howard v. Rogers, 4 Harris and Johnson, 278, turned upon the construction of a deed, which was held not to have been intended to pass anything' more than the grantor's interest in the lot. Scicl there been a covenant, express or implied, to leave the lot open, .the points would have been the same as in Trustees of Watertown v. Cowen, referred to in 2d Smith’s Leading Cases, 191; 19 Wendell, 128; Wright’s Rep., 750; 1 Sup. U. S. Dig., 534, s. 348; 4 Devereux, 272.
    Deed should be so construed as to carry into effect the intention of the parties, 2 Bacon’s Ah., 576; effect of recital in deed construed against grantor, 4 Bacon’s Ab., 526; parties and privies bound by recitals, 1 Greenleaf’s Ev., 823; admissions binding on privies, 1 Greenleaf’s Ev., 189, 211; 4 Peters, 1. 3 Johnson’s Cases, 174; 8 East, 487; 4 Cruise, 293; 4 Seam. 561; 3 Pick., 262.
    Easements and incorporeal interests are not within the Statutes of Limitations. Angel on Adverse Enjoyment, 62, 76, &c.; B. S. 1845, and Limitations. Our Statutes of Limitations, so far as they pertain to real property, were taken in all, except as to the length of time, from the English Statutes, i. e., 32 Henry 8, c. 2; 21 James 1, c. 16; and 3 and 4 William 4, c. 27. The English Courts never considered these Statutes applicable to easements and incorporeal interests; 1 Chitty’s Prac., 746, 759; Gale & Whately on Easements, 98.
    Where a right to the use and enjoyment^of the easement or incorporeal interest has once become vested in the public, by grant or dedication, a non-user of that right for no length of time can bar the public. State v. Trask, 6 Vermont 355; New Orleans v. United States, 10 Peters, 662; Rowan’s Executors v. Town of Portland, 8 B. Monroe, 250, “The dedication having been made and proved, did not require a subsequent user to establish or prove it; Cincinnati v. White’s Lessee, 6 Peters; and Barclay v. Howell’s Lessee, 6 Peters; Angel on Adverse Enjoy., 36, 37, 38.
    Laches are not imputed to counties; 1 Scam., 70. In the case of State Bank v. Brown et al., 1 Scam., 106, per curiam, “Are the people then barred by the Statute of Limitations? This question though not directly before the Court, was incidentally decided in the case of Madison county v. Bartlett; the Court there say: ‘ It is a well settled principle, that a state is not barred by a statute of limitation unless expressly named,’ and we have no reason to change the opinion thus expressed. See also, 6 Peters, 673; Rex v. St. James, 2 Selwyn’s Nisi Prius, 1334; Vooght v. Winch, 2 B. and Ald., 667; Best on Presump., 137, §103; Fuller v. Saunders Cro. Jac., 446; cited in 2 Smith’s Leading cases, 178; White v. Crawford, 10 Mass., 189.
    Deeds are to be taken most strongly against the makers thereof, and in favor of the other party or those for whose benefit they were made.
    Although to vest a fee under our statute, it is necessary that a plat should have been made, executed, acknowledged and recorded in accordance with the statute; a plat duly recorded, though informally executed, will vest a use in the public.
    In the construction of a deed, effect should be given to every word and sentence, when such a construction would not contradict the manifest intention of the grantor, or make the instrument ridiculous or absurd, and no part will be rejected as surplusage which can consistently with the general object of the same, be retained.
    Under the Recording Law of 1820, it was only necessary to record within twelve months, and an unrecorded deed was then good as against a judgment, and a purchaser under an execution then purchased only what actually belonged to the defendant.
    The Court below erred in deciding that the defendant had such a title as protected him under the Statute of Limitations of 1835.
    J. Semple, W. B. Scates and War. Hartes, for Lefts in error.
    The defendants contend, that as the title was and is clearly vested in Easton and his assignees, such title cannot, and will not be divested by any strained construction of the acts of the owners of the land; but that before a dedication to the public can be made out, there must be shown a dear ancl undoubted act of such owners placing the dedication beyond dispute. If the case is doubtful or ambiguous, the vested rights of the patentee and his assigns will not be disturbed.
    The only foundation of the claim of the city, rests on the covenants in two deeds made by and between Easton on one part, and Whitesides and Reynolds on the other.
    1st. By a fair and legal construction of these covenants and conditions, connected with the plat, they do not make the “ Reserve” public ground, or amount to a dedication to the public.
    2d. They are'merely personal covenants and conditions; do not run with the land, or bind the assignees of the patentee.
    3d. They are void, being repugnant to the estate granted.
    4th. They are void as to sales under execution.
    5th. They are void as to creditors,1 as being voluntary and without consideration.
    6th. They are void as to creditors, because the deed was not recorded until after the judgment against Easton.
    7th. The seven years’ statute of limitations bars the plaintiffs’. claim after fifteen years’ adverse possession.
    1st. As to the covenants, &c. The covenant in the deed from Easton to Whitesides and Reynolds is as follows: “ And the said Rufus Easton does covenant and agree that all the lots for public, scholastic, and religious purposes, for a public landing, or any reservations, of common, east of the Fountain creek, as designated on the plat aforesaid of said town, and particularly the land that lies between Front street and the river Mississippi, as designated on said plat, fronting on the river, between the said Fountain creek and Henry street, ‘ shall be and forever remain a public landing ¡ilace, and shall be and remain for the use of the public, as designated on said plat”

    Here it is clear that the plat is made a part of the covenant, by no less than three references to it in one short sentence. Every word and mark on the plat, affecting this question, forms as much a part of the contract between the parties, as if they had all been inserted in the covenant itself. If instead of referring to the plat for an explanation of what was intended should be and remain public, the parties had gone on and inserted it all in the covenant, leaving out any reference to the plat, but inserting in lieu thereof exactly what the plat says, then the public square, the seminary square/ the gospel square, the public landing, and the common, or promenade, would all have been described by metes and bounds, and all the private lots, strips of ground, and this land marked ‘ reserved!’ would have been particularly described as they are marked on the plat. In such case there would have been- no doubt as to what was intended by the parties. On this point, a striking case is to be found in 3d Cond., Eep. 362.
    Another case in 6 Peters, 510. The Court say: “The deed ■from Ormsby called for a lot, designated on the town plat 183, bounded by Front street, the river Monongahela, and lots numbered 182 and 184."
    On this same point, in 18 Ohio, Rep. 94, the Court say, 11 When the width of a street marked by right lines, is given in a town plat, surplus land, between the street and the low water mark of a river, is not thereby dedicated to the ’use of the town.”
    Also, in 1 Blackford, 44, the Court say: “ The limit of the street as designated on the plat, is the extent of the public ground, and if there is any land between that street and the river it is not granted to the town of Hew Albany. See also 6 Mass., 435.
    It is a rule of law, that all the words of a deed or instrument must have their full operation if possible. How the word “reserved’’ is, by reference, a part of this covenant, and must operate if possible.
    The covenant of Easton is the only one that could make a dedication. Whitesides and Reynolds could not dedicate the land by their deed for they had-no title.
    This clause is not a covenant, but a condition of non-alienation, void of itself but particularly void as to creditors.
    2d. These are merely personal covenants and conditions : do not run with the land, nor bind the assignees of the patentee. 9th Humphries, 540; 2 Blackford, 301; 4 Cruise, 452 ; 10 East, 120 ; Coke’s Reps., 135.
    3d. They are void as being repugnant to the estate granted. Sprague v. Snow; 4 Pickering, 54; 4 Gilman, 544; 4 Kent, 131; 2 Cruise, p. 5, Secs. 19, 20, 21, 22.
    4th. They are void as to sales under execution. 4th Kent, 124, 129; 2 Cruise, p. 6, Secs. 25, 28; do., p. 11, Secs. 46, 47, 48 ; 7 J. R., 534; 15th J. R., 280.
    5th. They are void as to creditors, as being voluntary, and without consideration. 4 Kent, 461; 4 Cruise, 457.
    6th. They are void as to creditors, because the deed was not recorded until after the judgment lien attached.
    The law of 1802, Purple’s L. L., p, 298, acts 1821, p. 174 made j udgnient a lien on all defendants’ lands. This law was i; i force up to 1821. The act of 1819, p. 20, Sec. 8, giving a year to record deeds, only applies to subsequent purchasers and mortgagees, and not to creditors. The protection to creditors rested in 1821 on the principles of the common law, which would give the judgment lien in this case priority to the subsequently recorded deed without notice. 4 Cruise, 482 ; 4 Kent, 450.
    7th. The seven years’ statute of limitation bars the plaintiff’s claim after fifteen years’ adverse possession. Scott v. Ratcliffe, 5 Peters, 87; 11 Peters, 54; R. L., p. 349, Secs. 8, 9, 10, 11, p. 104, Sec. 8 ; 3 Cruise, 489, Secs. 41, 44; 3 Kent, 359.
   Caton, J.

In 1818 Easton claiming to be the owner of the land, laid out the town of Alton, upon the recorded plat of which, the two blocks, lying between Front street and the Mississippi river are marked “Reserved,” and the premises in controversy are a portion of one of these blocks. Subsequently, Whitesides and Reynolds set up a claim to the land upon which the town was laid out. These parties settled their controversy, by executing and interchanging the deeds, upon the construction of which, the decision of this case depends. These deeds, recite that the parties had conflicting claims or titles to the land, and ' that for the purpose of compromise, they had agreed to relinquish to each other, the part allowed to him or them in the compromise, in pursuance of which the deeds were simultaneously interchanged. They are therefore to be construed together as parts of the same transaction. As to the dedications, the public is to be considered the grantee, and the other parties to the deeds the grantors. Whoever subsequently purchased lots or made improvements in the town, paid to the proprietors a proportionate consideration for the dedications of land made to the public use. Easton by his deed, conveyed to Whitesides and Reynolds, certain specified lots and blocks in the town, and then, expressly “covenants and agrees, that all the lots, for public, scholastic and religious purposes, for a public landing or any reservations of common, east of the Fountain Creek, as designated on the plat aforesaid of said town; and particularly the land that lies between Front street and the river Mississippi as designated in said plat, fronting on the river between the said Fountain Creek and Henry street, shall be and forever remain a public landing place, and shall be and remain for the use of the public as designated on said plat, excepting and reserving to said Rufus Easton and his heirs forever the exclusive right of a ferry or ferries on and from said land so made common.” Here are erased in the deed the words “or for any other purpose” between the words “common" and “east,” and the words “that lies between Front street and the river Mississippi, as designated in said plat,” are interlined.

Upon the plat several interior lots and blocks are marked as dedicated to the public, one for a Court House, some for religious and some for educational purposes, and upon the river and immediately east of Fountain creek, a fraction is marked for a public landing, and farther east and between the blocks marked reserved, and Henry street, is a space marked “ promenade or common.” We are to determine what part of the town plat is by this covenant, declared dedicated to the public. In the forepart of the clause quoted, are described in clear and unequivocal terms, all of the lands and lots which are marked upon the plat, as dedicated for specified purposes, and these are all, which judging from the face of the plat, I should he inclined to hold, Easton had dedicated to the public. It is insisted, that by the subsequent part of the sentence, the parties did not intend to make any new dedication, but only to confirm what had already been designated for the public use, upon the plat. I cannot so understand the covenant. That subsequent clause, is as follows : “ and particularly the land that lies between Front street and the river Mississippi, and designated in said plat, fronting on the river, between the said Fountain Greek and Henry street, shall be and forever remain a public landing place,” &c. If the parties meant what they expressed, then certainly all the land described in this clause was dedicated to the public, and the only question which can arise, is, are the two blocks marked “Reserved” embraced in this description. They are as unequivocally described, as if they had been designated by name, and yet if that had been the case, I amagine this controversy would never have arisen, notwithstanding the reference which is made to the plat, and which it is urged, signifies a different intention. Here the metes and bounds of certain premises which are designated for the public use, are given, and in the center of the tract included within those bounds are the two blocks, which it is now insisted were not dedicated to the public. But the covenant says, that the land that lies within those bounds, “shall be and forever remain a public landing place.” If these blocks were not intended to be included in this dedication, why was this clause inserted at all ? Every other tract had been clearly and pointedly described in terms which admit of no doubt, and unless these two blocks were intended to be added to the list already dedicated, then this clause is worse than useless. A construction which requires us to reject an entire clause of a deed is not to be admitted, except from unavoidable necessity. We are not at liberty to reject this part of the deed, which clearly expresses- a meaning more extended, than is manifest in other parts of the instrument. We are bound to presume it was inserted for a purpose, and has its office to perform. The rule is thus laid down in Cruise’s Dig. Title 32, Deed, chap. 19, Sec. 5. “ The construction ought to be made on the entire deed and not merely on any particular part of it. Fx antecedentibus et consequentibus fit optima interpretado. Therefore every part of a deed ought if possible to take effect, and every word to operate.”

Then we are not at liberty to suppose that the parties did not mean what they have so emphatically said, in this entire and distinct clause, and that they only meant what they had previously expressed. But there is a circumstance on the face of this deed, which clearly shows that the description which embraces these two blocks was not inadvertently or carelessly inserted. I allude to the interlineation after the word “land” of the following : “ that lies between Front street and the river Mississippi as designated in said plat." The description, before these words were inserted, was of the land lying on the river between the creek and Henry street, which necessarily included the two blocks, but as if to silence every doubt, they inserted the interlineation, which points directly to these two blocks; for by a glance at the plat, it will be seen that they occupy the whole space between Front street and the river so far as that street is extended and delineated on the maps. Really it would seem as if the parties had exhausted their ingenuity and command of language, in order to expel every doubt of their intention to dedicate these blocks to the public.

The only argument urged against this explicit declaration of ■ the parties, is drawn from the expression “as designated on said plat,” which it is insisted limits the description, to such lands as were by the plat dedicated to the public. These are usually, if not universally, words of description and not of quality. They serve to connect the deed with the plat, so that by applying the one to tlie other, the former may be rendered intelligible. They give effect to the expressions of the deed but they do not limit them. If there be that upon the face of the plat, to which the expressions of the deed can apply, then of course we must make the application, rather than reject the words of the deed, as not expressing the intentions of the parties. This reference to the maps, occurs three times in the description part of the covenant. Such reference was indispensable, in the description of the premises, but was quite unnecessary for the purpose of specifying the objects or purposes of the dedication. It seems to me that it can admit of no doubt, that in the two first instances the reference is made merely for the purpose of description. In the last, it may have been designed to limit the words “shall be and forever remain a public landing place,” so as to prevent them from being applied in such a sense as to make the Court House square and other interior lots, a public landing, for which they were altogether inappropriate.

But conceding that these references show that no new dedication was intended, then it is clear that the parties construed the plat as having already reserved them for the public use. If the plat is made to control the extent of the dedication, we must construe the plat as the parties understood it, and that is explained by the unequivocal expressions of the covenant. The two blocks are certainly embraced in the description of the land dedicated, and the construction contended for so far from proving that they did not intend to include thorn in the dedication, shows that they considered that they had already been dedicated by the plat. This construction, makes the parties say, that “these blocks shall remain reserved for a public landing, as the same are designated and set apart on said plat.”

I will now advert to the other deed, from which it will appear, if possible with still more clearness, that it -was the intention of the parties to include these blocks in the dedication. As before remarked, these deeds are a part of one transaction and must be construed together. The corresponding clause in the second deed, is in the form of a reservation, and is as follow's: “These presents shall not be construed to convey to, or vest in said Easton any exclusive interest in any of the streets, lots for public or scholastic or religious purposes; for a public landing, or any reservation of commons to the east of Fountain Creek, in said town of Alton, as designated on the plat of said town. But that all the ground from the public landing inclusive, as designated on said plat, to Henry street, and that lies between Front street and the river Mississippi shall forever be and remain a public landing for all persons whatsoever, except for a ferry landing.” In this deed we find the same property described in the same order, and in almost the identical language, except that that which points to these two blocks, is if possible, still more explicit than in the other. This deed says, “that all the ground from the public landing inclusive, as designated on said plat, to Henry street, and that lies between Front street and the river Mississippi shall forever,” &c. These two blocks occupy nearly the centre of the tract thus described, and if all of that tract is dedicated to the public, it is placed beyond cavil, that these two blocks are included in that comprehensive word. This seems so clear, that neither argument or illustration can make it more so. To my mind this is so manifest, both upon first impression, and after the most careful study of both deeds, that there is no room for construction. But as some understand them different^, I shall now admit that there is some ambiguity in the terms employed to express the meaning of the parties, and then we must resort to the well known rules of law for the purpose of construction.

When a deed is so drawn, that some will read it one way and some another, it is a well established rule, that that meaning shall be adopted, which is adverse to the interests of the grantor. In Cruise's Digest, Tit. 32, Deed, Chap. 19, Sec. 13, the rule is thus stated: “A deed is always construed most strongly against the grantor, verba charlarum fortuis accipiunter contraproferentem ; <et qu/xlibet conce-ssio fortissimo contra chnatorem interpretanda est. For the principle of self-interest will make men sufficiently careful not to prejudice themselves by using words of too extensive a meaning. And all manner of deceit is hereby avoided in deeds; for people would always affect ambiguous expressions, if they were afterwards at liberty to put their own construction on them.” If there be ambiguity in this deed, in no case could this rule apply with more reason- or justice. Here the parties have made them deeds and spread them upon the records of the county for the inspection of the public, whereby they have made certain dedications, the object and effect of which was, to invite purchasers and improvements, and to enhance the value of the residue of the town property. In that way they expected to be remunerated for the dedications thus made, and every man who purchased a lot of them, or made improvements there, paid a proportion of the consideration, for the property donated to the public. To say the least of it, these deeds were so drawn as to induce a largo proportion of purchasers to believe that the premises in controversy were dedicated, and thus they have received a consideration from the public for this very land, and to allow them now to say, that they did not intend to include it, is to allow them to practice a palpable fraud upon the public, and to take advantage of their own wrong. This the plainest dictates of common honesty forbids. The law will not allow them to affect ambiguous expressions, and then permit them to put their own construction upon them. Ilere the words are emphatically their own, for the grantees—the public—were not there to dictate or suggest, and certainly the principle of self-interest was sufficient to make them “careful not to prejudice themselves by using words of too extensive a meaning.” It is incredible to me, that intelligent parties could have used such emphatic and pointed words to include these blocks, if it was not the intention of the parties to embrace them in the dedication. It may be observed that several of the lots, sot apart to Whitesides and Reynolds, are immediately in the rear of one of these blocks, and their value very much depended upon having the space in front of them open to the river, rather than have it obstructed by the individual property of Easton. And this may explain why even stronger expressions are used in the reservation contained in the deed to him, than are found in the covenant to Easton. Possibly other words might have been used, so as to have left less room for controversy in the minds of some, that the parties did intend to include these blocks in the dedication; yet this is no reason for saying, we will not believe that they intended what they have said. This would be reversing the rule of the law and throwing every doubt or uncertainty in favor of the grantor. I cannot entertain a doubt, that by every rule of law and of reason, we ought to hold that the premises in question were dedicated to the public use.

Nor do we think the rights of the public are barred by our statute of limitations, which prescribes that certain real actions shall be brought within seven years after possession taken by the defendants. Without stopping to inquire whether the rule that laches are not imputable to the public, or that time does not run against the government, applies to inferior municipal corporations, such as towns, cities and counties, as well as to 'the state, we entertain no doubt that this statute has no application to the case before us. Whatever title to these public grounds may be vested in the city, she has not the unqualified control and dispo-' sition of them. They were dedicated to the public for particular purposes, and only for such purposes can they be rightfully used. For those purposes the city may improve and control them, and adopt all needful rules and regulations for their management and use, but she cannot alien or otherwise dispose of them for her own exclusive benefit, nor are they subject to the payment of her debts. At most she but holds them in trust for the benefit of the public. The right to the use of the joroperty is not limited exclusively to the citizens of Alton, but the citizens of the state generally have an equal right with them in the appropriate enjoyment ©f the dedication. This is not like the case of property purchased by the city for her own exclusive use, which she could dispose of at her pleasure. Whether an adverse possession would run against property thus held, we do not now propose to inquire, but we entertain no doubt that this statute does not apply to this case, and that the rights of the public in this dedication have not been forfeited by non-user, or barred by adverse possession.

Russell’s judgment against Easton, under which the defendant claims to hold title, was subsequent to the deeds, and as the deeds were recorded within the time prescribed by the statute then in force, the title conveyed by them could not be prejudiced by that judgment.

The judgment is reversed and the cause remanded.

Judgment reversed.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    John T. Knox, et al., Pltffs in Error, v. James E. Breed, Deft in Error.
    ERROR TO FRANKLIN.
    Where the verdict and judgment are too general, the judgment will he reversed.
    This was an action of debt brought in the Franklin Circuit Court, by defendant in error against the plaintiffs in error ; the cause was tried before Denning, Judge, and a jury at September Term, 1850, when the following verdict was found by the jury: “ Upon their oaths do say $-118 75, (Four Hundred and Eighteen Dollars and 75 Cents,)” upon which verdict, judgment was entered as follows: “ Ordered by the Court that the plaintiffs recover of the defendant, the sum of Four Hundred and Eighteen Dollars and 75 Cents, together with their proper costs and charges and may have execution.” A motion for a new trial was made and overruled.
    Defendant below brings the cause here and assigns for error, the informality of the verdict and judgment.
    Casey & Montgomery and W. B. Scares for PMs in Error.
    R. Wingate and James M. Warren, for Defts in Error.
   Per Curiam.

The verdict and judgment are too general. The Case of Toles v. Cole, 11 Ills., 502, is precisely in point. Reverse the judgment, with costs, and remand the cause for further proceedings.

Judgment reversed.


author: Treat, C. J.

text:
    John M. Wilson, Pltff in Error, v. Nelson G. Nettleton, Deft in Error.
    ERROR TO WHITE.
    An affidavit made by an agent of the creditor, is sufficient to authorize the issuing of a warrant by a justice of the peace to hold a debtor to bail.
    A pica of privilege, that a party was a suitor and an attorney attending court, is a dilatory plea' and must he interposed at the first opportunity, or it will be too late.
    This was an action commenced before a justice of the peace in "White County, by a capias ad respondendum, and taken by appeal to the White Circuit Court. The cause was heard before Harlan, Judge, at September Term, 1850, who rendered a judgment for defendant in error. Wilson brings the cause to this Court, and assigns the following errors: The Court erred in not quashing affidavit and writ and dismissing suit because the affidavit was made by a-stranger and not by the plaintiff in the suit, and for want of jurisdiction in the justice of the peace. The Court erred in giving judgment for the plaintiff on the said plea in abatement, but should have rendered judgment on such plea against plaintiff for costs, &c. The facts of the case are fully stated, in the opinion of the Court.
    C. Constable, for Pltff in Error.
    U. F. Linder, for Deft in Error.
   Treat, C. J.

This suit was originally brought before a justice of the peace. The defendant was arrested on a warrant, founded on an affidavit made by an agent of the plaintiff. He moved to dismiss the action, because the writ was imprudently issued. The justice overruled the objection, and entered a judgment in favor of the plaintiff. The defendant appealed to the Circuit Court, where he renewed the motion to dismiss. The motion was denied, and he then pleaded in abatement, that he was arrested on the warrant during the sitting of the Circuit Court, which Court he was attending as a suitor, and as an attorney at law. The Court overruled this defence, and affirmed the judgment of the justice.

The only objection taken to the process, under which the arrest was made, is that it was founded on an affidavit made by an agent of the creditor. It is contended, that the oath must be made by the creditor personally, and cannot be made by a person acting on his behalf. The statute declares, “ If, previous to the commencement of a suit, the plaintiff shall make oath that there is danger that the debt or claim of such plaintiff will be lost, unless the defendant be held to bail, and shall state, under oath, the cause of such danger, so as to satisfy the justice that there is reason to apprehend such loss, the justice shall issue a warrant,” &c. E. S., ch. 59, § 22. What is the real object of this provision ? It is that a debtor may be held to bail, whenever it is satisfactorily made to appear on oath, that the creditor will otherwise be in danger of losing his debt. There is no good reason why an agent charged wfith the collection of a debt, may not be permitted to make the oath, and sue out the process. He can ascertain and state the causes, which are to satisfy the justice of the propriety of issuing the warrant, as well as the creditor. He may have a personal knowdedge of the facts, while the creditor may be ignorant of their existence; and if the latter is alone allowed to make the oath, he can only swear as to his belief of the truth of information derived from others. We think the design of the statute is equally answered, whether the oath is made by the creditor or his agent. Any other construction of the statute might deprive a creditor, who resides at a distance from his debtor, of the benefit of its provisions altogether. The delay in obtaining correct information of the condition of his debtor, and in transmitting the necessary affidavit, might render abortive any attempt to coerce the payment of the debt. The consequences of the debtor are the same, whether the oath is made by the creditor or his agent. If he is arrested on a warrant causelessly sued out by the agent, he has a clear remedy against his principal.

The plea of privilege came too late. It was a defence of a dilatory character, not affecting the merits of the action, and should have been interposed before the justice. If there made and overruled, it might have been renewed in the Circuit Court.

It was waived by the failure of the defendant, to insist upon it at the first opportunity.

The judgment is affirmed with costs.

Judgment affirmed.


text:
    William H. Walter, impleaded, &c., Pltff in Error, v. Trustees of Schools for Town two south, Range two east, &c., Defts in Error.
    ERROR TO JEFFERSON.
    A plea of non esi fachim verified by affidavit, puts the plaintiff to proof of execution of the instrument sued on, but such an affidavit is not evidence for a defendant. To maintain the issue raised by such a plea, the plaintiff had only to prove that defendant was liable as maker.
    If a party originally authorized his name to be subscribed to a note, or participating in the consideration, ratifies the act of another in putting Ms name thereto, he becomes liable as maker.
    Tart payment of a note by the person in whose name it purports to be made, is sufficient proof, prima facie, of its execution by him.
    This was an action commenced by the Trustees of Schools for T. 2 S., R. 2 E., before a justice of the peace, against the plaintiff in error and two others as joint makers of a promissory note. Service was only made on Walter. A judgment was recovered against Walter, who prayed an appeal to the Circuit Court of Jefferson county. In the Circuit Court, Walter filed his plea of non est factum properly sworn to, and upon issue thereon the canse was submitted to Denning, Judge, for trial, without the intervention of a jury, and judgment was rendered against Walter for the sum of $47 77, at August term, 1850. A bill of exceptions was taken, and Walter brings the case to this Court. The bill of exceptions shows, that the note sued on was handed to the School Commissioner by Adams, in lieu of another note which he held against the said defendant, one Adams, and another person, the defendant not being present. That defendant paid the commissioner of schools a sum of money on account of the note, which was endorsed thereon; the same witness stated that defendant afterwards told witness, and before defendant had paid anything on the note, that he had been told that Adams had forged his name to a note, which he had given -to witness in lieu of the old one, which defendant with others had signed as sureties of the said Adams. That witness had but one note'in his hands, when defendant paid the money to him. That all the names to the note apusared to have been written by the same person, and that witness did not believe that the name of the defendant to the note was in his handwriting.
    R. F. Wingate, for Pltff in error.
    S. Gr. Hicks, for Defts in error.
   Treat, C. J.

The defendant having verified his plea of non est factum by' affidavit, the plaintiffs were bound to prove the execution of the note. The ..affidavit was not evidence for the defendant, but, under the statute, it had the effect merely to put the execution of the instrument in issue. To maintain the issue on their part, the plaintiffs had only to prove, that the defendant was liable as maker for the payment of the note. The proof showed that the signature was not in his handwriting. It was not his note, therefore, unless he had originally authorized his name to be subscribed as one of the makers, or, participating in the consideration and aware of the circumstances under which the note was made, he had subsequently ratified the unauthorized act of another in putting his name thereto. The Circuit Judge was of the opinion, from the other facts of the case, that the defendant. became a party to the note in one of these ways. "We are not prepared to hold that he erred in coming to such a conclusion. Part. payment of a note, by the. person in whose name it purports to be made, is sufficient proof, prima facie, of its execution by him. Unexplained, such an act -is a strong and unequivocal recognition of the genuineness of the note. It is a. solemn admission that he executed the note, and is liable for its payment. It dispenses with proof either that the signature is genuine, or that it was subscribed to the. note by his authority. Here, the defendant made a payment to the school commissioner,. - which was credited on the note in controversy. It was the only-obligation that the commissioner then .held against him. There had been another note in his hands, but it had been given up,, and this note substituted in its place. Before the payment was-made, the defendant was informed by his co-surety that a new note, purporting to. be signed by the same parties, had been ■ given to the commissioner, in lieu of the old one.. It was a fair inference, from these..circumstances, that he designed the payment to be applied on' the new note, and not on the old one, which he had good reason to believe had been cancelled. .

The judgment of the Circuit Court is affirmed, with costs; -

tJudgment affirmed.


author: Trumbull, J.

text:
    George M. Borah, Pltff in Error, v. Thomas Curry and Jas L. Owen, Defts in Error.
    ERROR TO WAYNE.
    A note given for money, which may be paid in any article of personal property, is not within the statute governing notes payable in personal property other than, money; and when the maker of such note, elects.to discharge it by the payment of the personal property, the property must be tendered at the place óf residence of the payee at the time the note was given..... •.
    This was an action originally commenced before a justice of " ri£he peace, and taken by appeal to the Circuit Court of Wayne county. The cause was there tried before Harlan, Judge, and a' jury, at March term, 1849, when a verdict was found and a judgment thereon entered for the defendants." The note sued on is set out in the opinion of the Court." The bill of exceptions taken in the' case, shows that the defendants resided together when the note'was given, that when the note became "due they had over 400 bushels of corn- ready to measure, "but no one came' to receive.it; that the'eorn was not measured out, but was in crib's' with other corn; that 'about a week before said note became dtie, Curry hauled one load of corn to the place where Crews, the payee of the .note, lived, which he refused to receive, and the corn was hatiled back by Curry. Plaintiff below told defendants, he would not ■ receive said corn unless they would haul all the corn to the place where payee lived when note was given, which defendants- -refused to do. Plaintiff proved that he demanded the corn on the day the note became due,' that defendants offered to pay one half of corn at Crews’ and one half at Owen’s, which plaintiff refused; and demanded that it should all be paid at Crews’: " ' ' ’ " - . •
    The jury found a verdict for defendants; plaintiff moved for a new trial which was denied, and the plaintiff below brings the cause here for review, by writ of error.
    E. Beecher, for Pltff in error.
    The note was made payable at the residence of the payee. R. S., p. 386, §12; 2 Kent’s Com., 507-8.
    There was no tender of the corn. To have constituted a ten— der, the corn should have been measured out and set apart from other corn, so that plaintiff could see what was his property. 2 Grecnleaf’s Ev., §600, 609; Cbitty on Contract, 727, note 1; 2 Kent’s Com., 496, 507-8; 4 Scam., 331; 7 Conn., 110.
    There was no waiver of the tender. There can he no waiver of tender of personal property other than money.
    C, Constable, for Belts in error.
    1. The place of tender was the debtor’s residence or farm, inasmuch as the note was payable in farm produce. 2 Kent’s Com., 508; Lobdell v. Hopkins, 5 Cowen, 516; Vance v. Bloomer 20 Wend., 199; 2 Greenleaf’s Ev., §609.
    2. A question of tender is a question of fact to be found by the jury, and unless clearly against evidence, their finding will not be disturbed; and if the jury had sufficient evidence before them, to satisfy them, that the defendants in error offered to deliver the corn as the plaintiff should direct, at their farm, the verdict was right and should not have been set aside. Slingerland v. Morse et al., 8 John., 474,
    3. The case has been twice tried by juries, once by a justice, and reviewed and adjudged in effect by the Circuit Court, and the result has always been against plaintiff in error, and this Court will not disturb the judgment, inasmuch as the burden of proof was on said plaintiff, Cunningham v. Magoun, 18 Pick., 13; Wheeler v. Shields, 2 Scam., 348; Eldredge v. Huntingdon, 2 Scam., 535: Goode v. Love, 4 Leigh, 635.
   Trumbull, J.

This action was originally commenced before a justice of the peace upon the following note: “ On or before the twenty-fifth of December next, we or either of ns promise to pay Nathan Crews forty dollars, which may be discharged in good sound corn at twenty cents per bushel, for value received of him, this 18th of April, 1848.” The note was subscribed by the defendants, and had been duly assigned by Crews, the payee, to the plaintiff.

In the Circuit Court, the defendants had judgment, the correctness of which depends entirely upon the question, whether "the makers of the note could discharge it by a tender of the corn at their place of residence, or whether they were bound to take it to the residence of the payee.

Both parties resided in the county at the time the note was given, as well as whemit fell due, -'It is insisted tin the' part of the defendants that corn is - a ponderous article, and that under the statute, they had-fhe right to discharge the'note by a tender " of the corn at the place where they resided,' at thedime thenOte was given. . : - i,r ■ '■ -

See. 12 cli. 73, R. S. declares, that instruments of writing “for1 the payment or delivery of personal property, other than money,” when no place is specified for the payment or delivery of such property, may be discharged by a tender of the property, at the-place of residence of the payee;' at the time the instrument of writing was exéctited: Provided,'howévér, that' if the personal property be too ponderous to b'é’reiaovéd, or the payee had not a known place of residence iñ thé'cóuniy at "the time the contract Was executed;-then 'the property may be'te'hdered, at the place where 'the maker réside'd whétt the contract' was entered-into. : '• 1 " ...... ' .

The-note in question is not, however, within the statute. It is not a nóte for -the payment of personal property other''than money, but a note for the payment of-money, with a privilege to thé’makers to discharge it in corn at a certain price; ' : '.....

The right to have -the note paid' in-móney ór com, was not left; to the payee, but-'the makers reserved thatpnv'ile'ge' to themselves;. !■ ' '•' - "■ '• •" " " ''

Haduorn at the time the note fell due, been worth fifty cents to the bushel,-the payee -could': not have compelled it's delivery', while he- would have-'been compelled to 'take it; if tendered,1 though its value should'fall-'to'ten''cents.' ’

The note was payable at a particular time, and in such case no demand is necessary to 'entitle a party to sue. Thé makers, to have discharged them'selves by the' payment of the money, would have had to seek1 the payee, or assignee ih this' instance, ' at his place of residence; -andthereisúo -reason, Why tliey' should' ” be allowed to "discharge'-themselves by "' a'1 tender of the corn, which was a'privilege inserted'in thé not'e-wholly for their ben-, efit, by atender at a .different' place, from the 'óñé where they. would have been compelled to tender the money", had'the'note remainedintheRands of thé:payée; - -'v ■ • " *'

This note- isnot -like the'-oaSe; of-a contract payable in.tradé generally, - without time or place, where it wás held that 'á spe-' dial demand was necessary, and the property deliverable at the residence of the debtor. Woods v Dial—post 72.

The general rule. is, that the person to he discharged from liability upon a .contract by the performance of a certain act, is impliedly bound to do the act which is to exonerate him. Chitty on Contracts, 727,

It was held in the case of Goodwin v Holbrook, 4 Wend. 377, that the place of payment, of a note payable in salt, was the residence of the creditor, when the-time of payment was fixed by the contract, but the place was not designated. That case is analagous to the present. To have discharged the note, the defendants should have tendered the corn at the time the note fell due, at the place where the payee resided when it was given, and as the record shews that no such tender was made, the verdict of the jury was wrong.

Judgment reversed -and cause remanded.

■Judgment reversed.,


text:
    Thomas Selby Pltff in Error v. Philip Geines Deft in Error
    ERROR TO LAWRENCE.
    Belief will not be granted upon a bill, where the answer denies the allegations of the bill, if-the proof is loose and uasatisfact-ory.
    The bill of -complaint filed in this cause by Geines, shows tbat he was indebted to Selby in December, 1842, in the sum of §200, on a note drawing twelve per cent, interest, which Selby wished to have secured by a mortgage on a farm, which was agreed to be given upon the conditions, that if Selby should attempt to enforce payment by foreclosure, that the land should be sold in a body, after it had been appraised by three disinterested individuals, and provided it brought two-thirds of its appraised value. That it was agreed by Selby that these conditions should be inserted in the mortgage, and tbat instructions were given to the person who drew, the mortgage, to insert them, but that they were omitted, that Geines not being able to read the English language, misunderstood its terms. That both parties supposed the valuation laws were then in force,' but their constitutionality being doubted, it was believed' that the insertion of the terms of the law in the mortgage, would be binding. That Selby attempted. to foreclose his mortgage in 1846, when Geines obtained an order from the Court,- directing that Selby should comply with the above conditions ; that thereupon Selby dismissed his bill, and obtained a judgment upon the note by a suit at law, and is seeking to evade the terms of the mortgage, by selling the land upon-execution without appraisement, which-proceeding this bill prays may be enjoined. A Master in Chancery allowed the injunction. '
    Selby’s answer, admits the indebtedness of Geines, the recov-. ery of the judgment/ the attempt "to sell upon execution, but denies the other charge in the bill, and insists that the mortgage contains all that the parties agreed upon, and truly sets forth-the contract, and concluded with a prayer for" a dissolution of the injunction. ' - ' " - '
    The testimony on the part of Geines,"shows that there was some dispute between himself and Selby, as ta what the mortgage should contain. Geines insisted upon the insertion of the conditions, and Selby refused to admit them, but that the party who drew the mortgage, is not certain whether it contained precisely the conditions insisted upon by Geines, but that he insisted that they should be there, and that he executed the mortgage with "that understanding. ■ ■
    The testimony on the part of Selby, shows that the money was loaned, upon the condition that its payment should be secured by a mortgage, without such conditions as Geines pretends, Geines observing at-the time, that real estate in Illinois was the same as personal property in Ohio, that it couldcbesold for anything, that was bid for itj that Selby should have a mortgage on lands and "chattels worth $1200,00, and that it "would at any time sell for enough to pay the debts of Geines.
    At the Sept, term, 1850, of the Lawrence Circuit Court, the in- 1 junction was perpetuated by Harlan, Judge, and a decree enter-. ed, directing the sale, era masse, of the lands mortgaged, after the . same shall have been appraised, &c., &c. To reverse this decree Selby sued out this writ of error, and assigns for error the perpetuation of the injunction, and the decree directing that the lands shall be appraised, &c., &c. ' '

      C. Constable & A. Kitchell for Pltff in Error.
    The plaintiff in error, had a right to pursue his remedy at law on his note, or by foreclosure of the mortgage, or both at the same time, and deft, had no right to set up the mortgage in restraint of the judgement, or compel him to collect it out of the mortgaged land only. Dunkley v. Van Buren, 3 John. C. R. 330. Jackson v. Hull; 10 John. R. 482; Delahay v. Clement, 3 Scam. 203
    The bill was insufficient, because the complainant had no right to change the terms of the mortgage by parol evidence. There is no pretence of fraud, and there is no such mistake shown as entitles the complainant to change the mortgage by parol evidence. 1 Greenléaf's Ev. § 276 §282.
    The testimony of one witness is not sufficient to overthrow the answer of deft. Gresleys’ Eq. Ev., 4-5 ; Greenleafs’ Ev.,§ 260.
    IT. F. Linder & J. G. Bowman for Deft- in Error.
   Treat, C. J.

The bill sets up, as the ground for relief, an express agreement of the parties—omitted by mistake to be inserted in the mortgage—to the effect that the mortgaged premises, in case of default in the payment of the note, should not be sold unless they would bring en masse, two -thirds of the appraised value. The answer denies the allegation, and insists that the real agreement of the parties is correctly set forth in the mortgage. The proof is altogether too loose and unsatisfactory to justify a decree reforming the mortgage, by the introduction of the provision alledged to have been omitted. At most, it only shows that the complainant was very anxious that the provision should be incorporated in the mortgage, and contended that such was the agreement of the parties, while the defendant insisted that no such agreement had been made. The mortgage was then drawn in the usual form, and executed by the complainant. It may, perhaps, have been his impression at the time, that the mortgage contained the condition in question, or that the legal effect of the instrument would be what he desired, but there is no satisfactory proof of fraud or unfairness in the execution, or that it did not embrace all of the stipulations actually assented to by both of the parties.

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

Decree reversed.


text:
    James Woods, Pltff in Error, v. David Dial, for the use of John Williams, Deft in Error.
    ERROR TO JEEEERSOH.
    The statute regulating the place of delivery of personal property, in certain cases where the contract is in-writing and payable, ata particular time,-without desigmating the place- of delivery, .has no application to-a contract not-m. writing."
    A contract payable “ in trade,” without time or place for-payment, is payable on .. demand, or within a- reasonable .timo .tbereafteryaccording, to1 the nature- of- the ' thing demanded. . ....
    The' promisee of such a contract, should make a demand at the residence or place of business of the.promisor, and notify him what kind -of trade.he.is ready to receive, and if he seeks to enforce the payment of the contract in money, he . should jshow that he has made a proper • demand, or some excuse for not having ' .done so, . ....... ..
    In the absence of all testimony to show where the contract was made, or where the parties resided, the presumption is, that.they resided -in.the county where- the ..action was.instituted... But jf it be shown.that the debtor iiadno fixed.place of ' residence, or", of doing business, or was a" non-resident, the rule governing the demand would be different, and in some .cases, -the demand would' be. wholly- dispensed with. ‘ . ' ■
    The promisee in such a contract undoubtedly has the right to select the kind of trade he would receive, confining himself however to-such articles, as the parties had in view at the time of the making of the. contract, and to.the pursuit or business qfthe prom,«or. . . . .........
    Whpre tho pro mi or. in such a contract was a merchant, the promisee would be confined to such articles as the promisor usually traded in, and the place of dentand and delLvtry would be at the place.of business Of. the promisor.- • If the promisor wae a farmer the .promisee .would be confined to farm produce, to -.be demanded and delivered at the farm of the promisor. • -
    This was an appeal from a justice of the peace to the.Circuit Court of Jefferson County. -
    The fact’s of the cáse are fully set out in the opinion of the Court. The -cause was heard before Denning, Judge, and a jury •at the August Term, 1850, of the Circuit Court, and resulted in a verdict for the- plaintiff, and a judgment for $40 and ’ costs. A motion for a new trial was overruled. A . bill of'exceptions was-taken, and the defendant below, brought the’ case’to this Court by writ of error. ' ■- ":
    W. B. Scates and R F. Wlugate for Pltff in Error.
    S. Breese and L. F. Casey for Deft in Error.
   Trumbull, J.

This record shows, that Woods agreed with Dial to give him forty dollars in trade, for his iinproveiiient on Congress land—Dial to keep possession of the place for one year— that he left the premises in the spring, and brought suit for the forty dollars for which he had judgment. ■

The agreement was by parol,, and the. evidence of its.terms, as shown by the record, is exceedingly meagre. Neither the kind of trade, the time or place for its delivery, the residence of the parties, except that one of them resided on .Congress land,- .nor the business, that either followed, appears in the case. The Circuit Court refused to instruct the jury that proof .of a demand was necessary .to entitle the appellee .to recover.

The courts have felt some difficulty in construing, contracts of this character, and their decisions are somewhat conflicting.

In this State, we have a statute regulating the place of delivery óf personal property in certain cases, when the contract is in writing and payable at a particular time. The-statute however has no application to this case, as the contract was not in writing.

When the contract is payable in trade- generally, and no time or place is specified for its delivery, it is but reasonable that the promisee before bringing suit, should notify the promiser what kind of trade he will have, and when he is ready to receive it, or show some excuse why he has not done so.

.A contract payable in trade without time or place, is payable oh demand, or within a reasonable time thereafter, according to the nature of the thing demanded. Upon a contract payable in farm produce, it was held in the case of Lobdell v. Hopkins, 5 Cowen, 516, that a special demand was necessary. The case of Vance v. Bloomer, 20 Wend., 196, is to the same point.

We are disposed to adopt the rule as settled in New York, and hold that a special demand was.necessary in this case.

In the absence of all testimony to show where the contract was made, or where the parties resided, the presumption is, that they resided in the County where the suit was brought. In such case the demand.should.be .made .at the-debtor’s-residence or place of doing business. If he. had no fixed place of residence or doing business, or was a non-resident, the rule would be different and.perhaps.in some instances the.demand might be dispensed with. -

The creditor in this case. undoubtedly had the -right .-to select the land of trade he would have, confining himself .however to such articles as the parties had in -view at the time of making the contract. If the case showed that the.debtor was a merchant, there could be no question that the creditor would be confined in his selection .to such articles as his debtor usually traded in, and'that he would be bound to make the demand and receive the goods at his store, and at the "usual prices. 2 Kent’s Com., 505; 2 Grreenleaf Ev.j § 609.

The subject matter of the agreement is however the only circumstance- that appears-' in this record, from which tó ascertain what the parties meant by trade. In such a case, the custom and usage of those who' enter into similar contracts ought to govern its construction.

A debtor who wished to discharge such a contract, would have the right to call upon his creditor to select the property and name á time and plácé for its "delivery, and upon' his failure to' do so, it would then be the right of the debtor to select property subject: to the same restrictions as the creditor would have been under, had he made the selection,' and tender the' same at some reasonable time and place in discharge of his" obligation.

As the case will have'to be reversed, on account of the refusal ■of the Goúrt to instruct the jury that a special "demand"'was necessary, and it is probable that further testimony will be adduced upon another' trial, it is unnecessary to pursue this discussion further.

Judgment reversed- ánd cause remanded. 1

Judgment reversed. ,


text:
    Nathaniel Buckmaster, Appellant, v. John Cool, Appellee.
    APPEAL FROM MADISON.'
    A bill of exceptions,'which professes to give only “an outline of all the testimony in the case,”' is not sufficient to authorize' the Supreme Court to inquire into the propriety of the refusal by the Circuit Court to grant a new trial.
    The Supreme Court will not inquire into the correctness of instructions, when the record does not furnish evidence that they were excepted to.
    If there is an outer and an inner fence to a field, a party not .haying án .exclusive right in the field, caunot'remove the inner fence, although'lie is the owner thereof, without subjecting himself to the consequences of exposing the crops to danger. Nor is it any defence to an action of trespass growing out of the removal of the inner fence, to show,'that the complaining party was bound to keep the outer fence in repair, or that he might have repaired'the same at small expense.
    This was an action of trespass quare clausum fr eg it, commenced in. the Madison Circuit Court, by appellee against appellant, and charges that the trespass complained of was committed on the 1st day of September, with a continuendo to the 1st day of February, 1850.
    The appellant pleaded the general issue and two special pleas. Issue was taken upon the pleas, but as the decision of the Court does not turn upon the pleadings, it is unnecessary to recite them. The cause was tried by Underwood, Judge, and a jury, at March term, 1850, and a verdict was found and judgment entered, in favor of appellee against the appellant, for $345 00.
    A bill of exceptions was taken by the appellant, who brings the cause to this Court, and he assigns for error the refusal of the Court below to admit certain evidence offered by him, the giving of improper instructions, and the refusal to grant a new trial.
    W. Martin and E. Keating, for appellant.
    The master is not liable for the willful disobedience of his servant. Ferguson v. Terry, 1B. Monroe, 56; McManus v. Cricket, 1 East, 106; Lyons v. Martin, 8 Adol and E., 512.
    In assessing damages in an action of trespass quare clausum fregit, only the direct damages of the trespass can be allowed. Loker v. Damon, 17 Pick., 284; 2 Greenleaf on Ev., p. 258; Sedgwick on Dam., 98; Miller v. Mariner’s Church, 7 Greenleaf, 51; Thompson v. Shattuck, 2 Metcalf, 615.
    J. Gillespie with Billings & Parsons, for appellee.
    1. In actions of trespass, where the testimony is often and perhaps usually circumstantial, the Court will rarely, if ever, disturb a verdict, where there is anything in the record tending to support the finding of the jury. Young v. Silkwood, 11 Ills., 36.
    2. If the plaintiff have possession of that part of the close upon which the trespass was committed, although trespass was committed upon other parts not in the possession of plaintiff, he can maintain his action. 6 East, 39; 2 Stark. Ev. 1098.
    8. A party can only take advantage of a non-joinder of plaintiff, by a plea in abatement. 2 Stark. Ev., 1103.
    4. A party to avail himself of an exception to the decision of the Circuit' Court;-must take--an' -exception at the time the decision is made, and the bill ofexceptions'-must affirmatively show that the exception was taken akthat time. - ’ll Ills.,' 72, 580, 586.
    5. The bill of exceptions in this case, sets forth that'it is only an outline--QÍ the testimony produced • oh''the' trial below. This Court will'not "examine' into "the evidence unless'it appears to have been all-the'"evidence produced on the trial.
   Treat, C. J.

We c~ainot iftqthrè~ into~ the propriety of the

decision of the Circuit Court refusing to grant á new trial. It does not affirmatively appear, as-it should" in order to present that- question, - that" all' of the material evidence is in the record. It - is stated in the conclusion of the bill of exceptions, that it contains' “'an outline of all the testimony in-the case.” ' This language does not imply, that all of the facts proved on the trial, and which may legitimately have been considered by the jury, are previously set-forth. It "is'not equivalent'to'the usual statement in a bill of exceptions, that it contains the substance of the -testimony-given bn the trial.

Nor can we: inquire into 'the- correctness of the instructions complained of. The- record- furnishes no "evidence,' that' the defendant exceptéd to the giving of the "instructions.

It remains to be considered, whether the-Court erred in excluding certain testimony offered ’ by the defendant. The ease showed,- that several persons raised crops in a common field surrounded by a defective fence. ' During the' season, brie of them erected an inside fence sufficient to protect the crops. In Se|> tember, the plaintiff purchased'eighteen acres of corn growing in the field; and, in November, the servants of the defendant removed a'portion of the inner fence, by means'bf which stock entered-into the field and destroyed the'corn. The action "was brought to:r'ecovér the valúe of the'corn thus'destroyed. The defendant offered-to prove, that the -plaintiff was bound to'keep the outside fehce in repair. We cannot perceive, how the admission of this testimony could have "beiiefitted"the defendant. The fact that-it was the duty of the plaintiff to keep the outer fencé in proper condition, did not justify the defendant in removing the inner bnO. Fo-r aught -appearing in the case, the plaintiff had an undoubted right to rely on the 'inside fence for the protection bf -his property-. The defendant proposed to prove, "in mitigation of damages, that the- plaintiff might, after the- taking away of the inner fence, .at a.small expense and by the-exercise of ordinary care, have saved his corn.. This evidence was. properly excluded. If the. fence;was. removed -by the- direction- of the defendant, he was responsible for all of the- consequences directly resulting from the act. . He .could not avoid-that-responsibility, by showing thab.the plaintiff failed to repair the breach that his servants .had committed... It was not a trifling- trespass* * as in the .case of the.opening.of a gate* which .the owner sees, open before any injury ensues, .and neglects ..-to close. The defendant also offered .to. prove,, the price-which the plaintiff-paid for the corn, at public, auction, two months, prior to its destruction. This testimony may not have been wholly irrelevant, but, we think, it had too remote a connection with, the real question in issue, to justify the reversal of the judgment, because of its exclusion. The corn w9s.stan.ding. in the field-when purchased by the plaintiff, but was cut and put in shock by Mm before it was destroyed. The- price .that, he paid for it, was .not, therefore, any just or certain criterion, of the value at the time:of its destruction. The defendant further, .proposed-to-;prove* that he had the. right to go upon Jbe field. Such, right, if it existed,■did not authorize him to remove the fence, or relieve him.from liability for the consequences. The gist of. the .action.;ivas -the ¡ removal of the fence, .not the entry on the close.

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

Judgment qffvrrned.


text:
    John Walsh, Pltff in Error, v. The People of the State of Illinois, Defts in Error.
    ERROR- TO RANDOLPH,, . ■ '
    Appeal bonds in criminal cases, are .governed vbytlie,.99ih section., of..the, 69,th chapter of the Revised Statutes, arid cannot lie amended.
    This was a proceeding instituted before a justice of the peace, upon a complaint for an assault- and battery. A trial was had and a fine of ten dollars was inflicted upon the plaintiff in error; whereupon he prayed an appeal to the Circuit Court, which was allowed. A bond was executed in the penal sum of $42 00, reciting that the judgment was fora like sum. In the Circuit Court, a motion was made to dismiss, because the appeal bond did not conform to the requisitions of law. The Circuit Court, Underwood, Judge, presiding, sustained the motion, and dismissed the appeal. The defendant below, brings the cause to this Court. The defendant below, moved for leave to amend his appeal bond, which was denied by the Circuit Court. The refusal-to allow an amendment of the appeal bond is the error complained of.
    W. J. A. Bradford, for Pltff in Error.
    P. Fowke, District Attorney, for the People.
   Treat, C. J.

Walsh prosecuted an appeal from the decision of a justice of the peace, imposing upon him a fine of ten dollars for an assault and battery. The appeal bond was in the penalty of forty-two dollars, and recited a judgment for the same amount.

The Circuit Court refused leave to amend the bond, and dismissed the appeal. Those decisions are assigned for error. The bond was clearly defective. It did not clearly describe the j udgment appealed from. There was a material variance between the judgment rendered by the justice, and the one referred to in the condition of the bond. The Court properly refused to allow the bond to be amended. The sixty-fifth section of the fifty-ninth chapter of the Revised Statutes applies only to appeals in civil cases. Appeal bonds in criminal cases are governed by the provisions of the ninety-ninth- section of the same chapter, which do not authorize them to be amended. The case of Swafford v. The People, 1 Scammon, 289, is directly in point. The present statute is precisely like the one, under which that decision was made.

The judgment is affirmed with costs.

Judgment affirmed.


text:
    Moise Toupin and others, Appellants, v. Olivier Gargnier, Appellee.
    APPEAL FROM ST. CLAIR.
    Where the parties to a suit, agree to dismiss the same, in the absence of all-reasonable doubt as to the making of the agreement, the Court should carry the agreement into effect; whether it be reduced to writing and signed by the parties, or exists in parol.
    This was an action of trespass, vi et armis, brought in the St. Clair Circuit Court by the appellee, which was tried by a jury Underwood, Judge, presiding, at the September term, 1850. A verdict was found for the appellee for sixty dollars. A motion for a new trial was entered by appellants. Before judgment, the appellees entered a motion to dismiss the suit, and produced and filed two affidavits in support of the motion, showing that an agreement had been made between appellee and one of the appellants, that the case should be dismissed as to all the appellants and that each party should pay his own costs. This motion was resisted, upon the ground that the verdict had been assigned by the appellee, and affidavits were produced and filed with the assignment of the verdict, showing the date of the transaction. The motion to dismiss was overruled, and judgment was rendered upon the verdict. Thereupon the defendants below instituted this appeal.
    G. ICoerxer, for Appellants.
    J. Uxderwood, for Appellee.
   Treat, C. J.

In our opinion the Court erred in not sustaining the motion to dismiss. It clearly appeared that the parties had agreed, while the case was pending and undetermined, and before the assignment to Underwood and Snyder was executed, that the suit should be dismissed, each party to pay his own costs. Two witnesses swore positively that sneli an agreement was made, and there was nothing in the case calculated to impeach the correctness of their statements. The existence of the agreement was not even denied by the plaintiff, as it probably would have been, if there had been any question respecting the true character of the transaction between the párties. The - Court, in the absence of all reasonable doubt as to the making of agreement, was: as much bound to carry it into effect as if it'had been reduced to writing and signed by the parties.

The judgment of the Circuit Court,., must be reversed with costs; and the cause will be -remanded, with instructions to that Court,--to enter an order of dismissal, pursuant td the agreement of the 'parties', •'

Judgment' reversed.