text:
    Drainage Commissioners v. John Hudson et al.

      Filed at Springfield March 26, 1884.
    1. Bill of exceptions—when necessary—presumption in favor of the judgment below. A land owner appealed from an assessment of benefits against Ms land to three supervisors, who reduced the same, and the commissioners appealed from this order to the county court, where they entered a motion to dismiss the appeal to the supervisors and all proceedings had on such appeal, for the reason that the land owner did not appear before the commissioners and object to the confirmation of the assessment, which motion was overruled. The hill of exceptions contained no part of the evidence heard on the motion: Held, that in the absence of such evidence in the record, it would be presumed it authorized 'the judgment of the county court overruling the motion.

      2. Practice—time to object that there is no right of appeal—in case of special assessment. Where it .is sought to question the right of a land owner to take an appeal from an assessment of benefits to his land by the drainage commissioners, by reason of his failure to appear before the commissioners and object to their confirming the assessment, the commissioners must take the objection by motion before the supervisors to whom the appeal is taken, and failing to do so will be a waiver of the right.
    3. Practice in the Supreme Court—cross-errors must be assigned on the record. Cross-errors argued in the briefs of counsel for the defendants in error, but not assigned upon the record, will not be considered by this court.
    4. Evidence—special assessments under Drainage law—evidence on appeal. On the trial of an appeal from a special assessment by commissioners under the Drainage law, to three supervisors, the commissioners have the right to introduce evidence tending to prove that the assessments do not exceed the benefits, and are no greater than the land’s just proportion of the cost of the work, and the land owner will have the right to introduce any competent evidence tending to prove the reverse; and on appeal by the commissioners from the order of the supervisors, to the county court, each party will have the same rights as before the supervisors.
    5. Costs—in proceedings under Drainage law. Under the last part of section 21 of the Drainage act, costs improperly made in the county court on an appeal from an order of the supervisors reducing the amount of special assessments of benefits against lands, may be ordered by the court to be paid by the party making the same.
    Writ of Error to the County Court of Champaign county; the Hon. J. W. Langley, Judge, presiding.
    Mr. Wm. B. Webber, and Mr. C. H. Kienzle, for the plaintiffs in error.
    Mr. Francis M. Weight, for the defendants in error.
   Mr. Justice Craig

delivered the opinion of the Court:

This was a proceeding under an act to provide for the organization of drainage districts, and to provide for the construction, maintenance and repair of drains and ditches, by special assessments on the property benefited thereby. Laws of 1879, page 142.

It appears from the record, that an assessment was made upon all lands benefited within the district on the 18th day of June, 1881. The assessment thus made proved inadequate to complete the proposed work, and the commissioners, on the 18th day of December, 1882, made an additional assessment on the same lands, under section 32 of the act, which authorizes an additional assessment when the first assessment shall be inadequate to complete the work proposed, or when assessments shall be necessary for maintenance and repair. The three defendants in error, John and John H. Hudson, and Frank M. Koch, appealed from the decision of the commissioners to three supervisors, as they had the right to do under section 18 of the act. The three supervisors, on the hearing, held that the second assessment as to the lands of John and John H. Hudson, two defendants, was unjust, and set it aside. As to defendant Koch the amount was reduced from $144 to $72. From this decision the commissioners appealed to the county court, .as they were authorized to do under section 20 of the act. In the .county court the matters in dispute were tried before a jury, and by the verdict the amount of the assessment as fixed by the commissioners was reduced about one-half as to the lands of the defendants John and John H. Hudson, and as to the lands of Koch the amount fixed by the supervisors was reduced from $72 to $50. The county court overruled a motion made by the commissioners for a new trial, and entered judgment on the verdict, and they appealed to this court.

In the county court the commissioners entered a motion to dismiss the appeal of defendant Koch to the supervisors, and all the proceedings by them had upon the supposed appeal concerning the second assessment, for the alleged reason that Koch did not appear before the commissioners and object to the confirmation of the assessment. It is not clear, from what appears in the record, whether Koch appeared before the commissioners and objected to the confirmation or not, and for this reason, if for no other, we can not hold that the court erred in overruling the motion. The bill of exceptions contains no part of the evidence heard by the court on this motion, and in the absence of the evidence we will presume the evidence heard by the court was sufficient to warrant the order of the court overruling the motion.

But there is another reason fatal to the position of appellants on this point. If they desired to rely upon the point, they should have made a motion before the supervisors to dismiss the appeal. This they failed to do, but submitted to a trial on the merits. We regard this as a waiver of the right, if a right it was, to rely upon the motion.

On the trial before the jury the commissioners introduced in evidence the original assessment roll and its confirmation, and also the additional assessment roll and its confirmation, and offered to prove, by one Coon, that the assessments against defendants’ land did not exceed the benefits, and were not more than the land’s just proportion of the costs of the work. This evidence the court excluded, and the propriety of this ruling is called in question by this appeal. It is true that the jury went upon and viewed the lands, but still we are of opinion that the commissioners had the right to resort to other evidence to sustain the assessment. Section 20 of the act provides that the supervisors summoned to hear appeals shall examine the assessment roll, and may hear testimony -in support of such assessment appealed from, and in opposition to the same, and may, if they deem it necessary, visit the lands upon which the assessments have been made. Under this section, on a trial before the supervisors there can be no doubt in regard to the right of the commissioners to introduce evidence tending to prove that the assessments did not exceed the benefits, and were not greater than the land’s just proportion of the cost of the work, and that the land owner would have the right to introduce evidence tending to prove the opposite,—in other words, the merits of the assessment were open for investigation, and either party had the right to introduce evidence to sustain or defeat it. Section 14 empowered the commissioners to assess to each tract of land its proportionate share of the entire cost of the work. The section then declares : “In no event shall any tract of land be assessed for benefits in a greater amount than its proportionate share of the estimated cost of the work and all expenses of proceedings, nor in a greater amount than it will be benefited by the proposed work. ” When the action of the commissioners is challenged, on appeal before supervisors, it is apparent that they have the right to call witnesses who are familiar with the land, the improvement, and its benefits, and establish by such evidence that they have made the assessment in the manner authorized by the statute, and the land owner will have the right to establish the opposite, if such is the case, and it can be proven. If the parties have the right to resort to evidence before the supervisors, have they not the same right in the county court ? Section 21 of the act gives an affirmative answer to the question. It declares that trials shall be conducted as in other cases of appeals. We think, therefore, it is plain that the court erred in the exclusion of the evidence.

The court ordered plaintiffs to pay all costs of witnesses subpoenaed to attend at the March term, 1883, of the court, and one-half of all the other costs. This is relied upon as erroneous. Section 21 of the act provides that if the decision of the supervisors be affirmed, or wholly reversed, costs should follow the judgment. In the Hudson case, the supervisors set aside the entire amount assessed by the commissioners, but the jury disregarded this, and fixed the amount at about one-half the sum the commissioners had originally assessed. This was in effect a reversal of the judgment appealed from, and, under the statute, costs should have followed the judgment. The last part of the section, however, provides that where costs have been improperly made, such costs may be adjudged against the party making the same. Under this provision of the statute the order of the court as to the costs of the March term was properly made.

Cross-errors have been argued in the briefs filed on behalf of defendants in error, but no cross-errors have been assigned on the record, and we must decline to consider them.

For the error indicated, the judgment will be reversed and the cause remanded.

Judgment reversed.


source: Caselaw Access Project

author: Mr. Justice Scholfield

license: Public Domain

text:
    Joseph W. Helmer v. Edward H. Castle.

      Filed at Ottawa May 19, 1884.

    1. Description—boundary—conveyance of land bordering on a high- . way or river—whether the grant goes to the center or only to the margin of the highway or river. The canal trustees being the owners of the east half of the south-east quarter of section 11, etc., across which was a public highway, (afterward a street,) running in an easterly and westerly direction, had the tract divided by a surveyor into two separate parcels, one lying north of and extending south to the center of such road, containing forty-one acres, and the other lying south of and extending north to the center of the road, containing thirty-nine acres; and when they afterward sold the south thirty-nine acres, they described it as the “east half of the south-east quarter, south of road, of section 11,” etc., “containing thirty-nine acres:” Meld, that the words in the deed, “south of the road,” meant the tract on the south side of the road extending north to the center line of the road, or all the land in the east half of such quarter lying south of the center line of the road.
    2. So where the owner of the part of the tract lying south of the center line of the road conveyed a part therein, described as follows: “Commencing at the north-east corner of that part of section 11 * * * south of the road there running, thence running westerly along the line of said road 141 6-10 feet; thence southerly 619 4-10 feet; thence easterly 139 9-10 feet to the east line of said section; thence northerly along said line 616 1-10 feet to the place of beginning, containing two acres, more or less, ” it was held, that the words, “south of the road there running,” referred to the part of the tract and not to the location of the corner, and that it was intended by the words used to mean the part of the tract on the south side of the road extending north to the center line of the road, making the starting point fall on the center line of the road; and this is corroborated by the succeeding words, “thence running westerly along the line of said road," which clearly means the center line of the road, for a road has no other line.
    3. A grant of land bordering on a highway or river carries the exclusive right and title in the highway or river to the center thereof, subject to the public easement, unless the terms of the grant clearly indicate an intention on the part of the grantor to confine the grantee to the edge or margin. In such case the highway or river is regarded as the boundary or monument, and the purchaser takes to the middle of the monument as part and parcel of the grant.
    Appeal from the Superior Court of Cook county; the Hon. Elliott Anthony, Judge, presiding.
    This was an action of ejectment, by appellee, against appellant, for the south 38 feet of the north 45 feet of lots 41, 42, 43, and the east 15-^ feet of lot 44, of the subdivision of blocks 9, 10, 12, 13, 14, and parts of blocks 11, 15 and 16, in Castle’s subdivision of the east fifteen acres of the east half of the south-east quarter of section 11, township 39, range 13, east of the third principal meridian, lying south of Lake street, in the city of Chicago. The cause was tried by the court, without the intervention of a jury, and judgment was rendered for the plaintiff for the land above described.
    The plaintiff, upon the trial, offered in evidence two stipulations, as follows;
    “It is hereby stipulated that defendant took possession of the premises described in the declaration, during the year 1882, and before the commencement of this suit; that if the north boundary line of the premises described in a deed dated January 24,1860, from Philander Hickox and wife to Martha J. Park, and recorded in the recorder’s office of Cook county on the 28th day of January, 1860, in book 189 of deeds, page 31, is the center line of Lake street, (Lake street being the street referred to in said description as a road,) then the premises described in said deed do not include the premises described in the declaration in this case; but if the south line of Lake street is the north boundary line of the premises described in said deed, then the premises described in the declaration are included in the premises described in and purported to be conveyed by said deed to Martha J. Park; and it is further admitted that section 11, town 39 north, range 13, was not in the city of Chicago in the year 1860, and was unsubdivided at that date; and it is further stipulated that the above entitled cause shall be tried before Judge Anthony, without a j ury, upon the documentary evidence only, and stipulations signed by the parties or their attorneys. This stipulation relates only to one trial of the cause, and not to bind the parties at any future trial in the Superior Court.
    John P. Wilson, Atty.for Deft.

    James Feake, Atty.for Plff.”

    “It is hereby admitted by and between the parties, that A. F. Bradley will testify that when he was county surveyor he surveyed and laid out and located a public highway, now known as Lake street, and where Lake street is now located, across the east half of the south-east quarter of section 11, township 39 north, range 13,- east of the third principal meridian, prior to 1843, and that previous to the sale of the east half of the south-east quarter by the trustees of the Illinois and Michigan Canal, he surveyed the said east half for the said trustees, in two parcels,—one parcel lying north of and extending south to the center of the said road, and consisted of forty-one acres, and the other parcel lying south of and extending north to the center of said road, and consisted of thirty-nine acres.
    James Feake, Atty. for Plff.

    Joseph B. Baekeb, Atty. for Deft.”

    Second—The defendant admitted in open court that the trustees of the Illinois and Michigan Canal had title to the whole east half of the south-east quarter of section 11, township 39 north, range 13, east of the third principal meridian, and that the said trustees, when conveying that portion of the said east half in which the premises in question are located, used this language in describing the property conveyed : “Bast half of the south-east quarter, south of road, of section number 11, in township 39 north, range 13, east of the third principal meridian, containing thirty-nine acres, ” and that all subsequent grantors of said premises, when conveying same, used the same language, down to Philander Hickox.
    Third—Affidavit showing common source of title from Philander Hickox.
    Fourth—A deed from Philander Hickox and wife to B. W. Ellis, dated March 17, 1869, conveying all of the east twenty acres of that part of the south-east quarter of section 11 which lies south of the road, being in township 39 north, of range 13, east of the third principal meridian, in the county of Cook, and State of Illinois, excepting two acres heretofore deeded by the parties of the first part to Martha J. Park, in the north-east corner of the above described tract. A deed from B. W. Ellis and wife to Charles W. Castle, dated June 6, 1873, conveying the east fifteen acres of the east twenty acres of the south-east quarter of section 11 which lies south of the road, in township 39 north, range 13, east of the third principal meridian, being in the city of Chicago, county of Cook, and State of Illinois. Plat of Castle’s subdivision, and plat of subdivision of blocks in Castle’s subdivision. A deed from Charles W. Castle and wife to Edward H. Castle, dated October 29, 1879, conveying lots numbered 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39, 40, 41, 42, 43, 44 and 45, in the subdivision of blocks 9, 10, 12, 13, 14, and parts of blocks 11, 15 and 16, in Castle’s subdivision of the east fifteen acres of the east half of the south-east quarter of section 11, township 39 north, range 13, east of the third principal meridian, lying south of Lake street, in the city of Chicago.

      Whereupon the plaintiff rested his case, and the defendant, to maintain the issues upon his part, offered the following evidence: A deed from Philander Hickox and wife to Martha J. Park, conveying the following premises:. Commencing at the north-east corner of that part of section 11, township 39 north, range 13, east of the third principal meridian, south of the road there running; thence running westerly along the line of said road 141T6B- feet; thence southerly 619T40- feet; thence easterly 139-j9- feet to the east line of said section; thence northerly along said line 616 fa feet to the place of beginning, containing two acres, more or less. Articles of agreement between Martha J. Park and Charles D. Helmer, to which agreement plaintiff’s attorney objected. Objection overruled, and exceptions by plaintiff. Said agreement conveyed property as follows: Two acres of the south-east quarter of section 11, township 39, range 13 east, in the city of Chicago, bounded as follows: Commencing at the east line of said section 11, on the south line of Lake street; thence running west 141 j60 feet on said street; thence south 619t4q feet; thence east 13919g- feet to east line of said section; thence north 616-^ feet to beginning, containing two acres, more or less. A deed from Martha J. Park and husband to Charles D. Helmer, conveying property as follows: Commencing at the north-east corner of that part of section 11, township 39, range 13, east of the third principal meridian, south of the road there running; thence running westerly along the line of said road 141 r6g- feet; thence southerly 619T40 feet; thence easterly 139T9T feet to the east line of said section; thence northerly along said line 616-^L feet to the place of beginning, containing two acres, more or less. A deed from Charles D. Helmer and wife to J. S. Helmer, dated June 25, 1878, conveying same tract of land, except certain lots not now in question, conveyed to Edward H. Castle, by deed dated September 18.

      The errors assigned bring in review the rulings of the court in rendering judgment for the plaintiff.
    Messrs. J. P. & T. R. Wilson, for the appellant:
    It seems evident that a part of section 11 lies north of Lake street, and a part lies south of Lake street, and a third part lies in Lake street. The parcel of land which is included within the limits of Lake street can not correctly be said to lie either north or south of Lake street. In the case of lots upon a plat not acknowledged in accordance with the statute, the grantee of a lot takes to the center of the street, and yet the conveyance of the north or south forty feet of such a lot is always construed as conveying forty feet of the lot, exclusive of the street. Pettibone v. Hamilton, 40 Wis. 402; Oxten v. Graves, 68 Maine, 371.
    It is entirely competent for parties to bound their premises upon the side of a street, if the description is an apt one for that purpose. Rockwell v. Baldwin, 53 Ill. 19; City of Chicago v. Rumsey, 87 id. 348.
    Mr. James Frake, for the appellee:
    We maintain that there can be no doubt that Philander Hickox owned to the center line of the road which crossed the said east half, for each of the conveyances, under the expression, “south of the road,” conveyed the fee to the center line of the road. Johnson v. Anderson, 14 Maine, 76; Mott et al. v. Mott et al. 68 N. Y. 253; Cox v. Friedley, 33 Pa. 124; Marrow v. Willard, 30 Vt. 118; White v. Godfrey, 97 Mass. 472; Oxten v. Graves, 68 Maine, 371; Salter v. Jonas et al. 39 N. J. 469; Moody v. Palmer, 50 Gal. 31; Cox v. L., N. A. and C. R. R. Co. 48 Ind. 178; Kimball v. City of Kenosha, 4 Wis. 331; City of Boston v, Richardson, 13 Allen, 146; 3 Washburn on Real Property, page 420, sec. 51; Canal Trustees v. Havens et al. 11 Ill. 557.

      This case is to be decided upon law applicable in conveyances of unsubdivided lands, which the land was at the time the deed to Mrs. Park was made. The fee to the center of all roads belonged to the owners of the abutting lands, and is conveyed by the deed as parcel of the land, and not as appurtenant. Waugh v. Leech, 28 Ill. 488; City of Chicago v. Rumsey, 87 id. 351.
   Mr. Justice Scholfield

delivered the opinion'of the Court:

The sole question in this case, as stated by counsel for appellant in their argument, relates to the location of the north boundary line of the premises conveyed by the deed from Hickox to Martha J. Park. If the south line of Lake street is the north line of the premises conveyed by the deed to Martha J. Park, then the premises in controversy are owned by the grantee of Martha J. Park, and the judgment should be reversed. If the center line of Lake street is the north boundary line of the premises conveyed by the deed to Martha J. Park, then appellee is the owner of the premises in controversy, and the judgment below should be affirmed. The description in the deed of Hickox to Martha J. Park is as follows: “Commencing at the north-east corner of that part of section 11, township 39 north, range 13, east of the .third principal meridian, south of the road there running; thence running westerly along the line of said road 141 feet; thence southerly 619 feet; thence easterly 139 T90 feet to the east line of said section; thence northerly along said line 616-gig- feet to the place of beginning, containing two acres, more or less.” The only difficulty is, of course, in locating the starting point.

At the time this deed was executed, the land it conveyed was not within the limits of the city, and what is now Lake street, was then, at this point, only a common highway. Moreover, the title to the whole of the east half of the southeast quarter of section 11, township 39 north, range 13, east of the third principal meridian, was originally in the trustees of the Illinois and Michigan Canal, and before they conveyed the same they had the tract divided by a surveyor into two separate parcels, one lying north of and extending south to the center of said road, containing forty-one acres, and the other lying south of and extending north to the center of said road, containing thirty-nine acres; and when they subsequently conveyed the parcel in which the premises now in controversy lie, they described it thus: “Bast half of the south-east quarter, south of road, of section 11, in township 39 north, range 13, east of the third principal meridian, containing thirty-nine acres.” All subsequent grantors of said premises, down to Philander Hickox, when conveying the parcel, used the same language. We think it reasonably certain, the tract being divided into two parts only, one north and the other south of the road, and each extending to the center line of the road, that the words, here, “south of the road, ” mean the tract on the south side of the road extending north to the center line of the road. The identity is exact in quantity,—thirty-nine acres,—and on a question of this kind that must have an important bearing.

Assuming it, then, to be sufficiently established that Philander Hickox took the part on the south side of the road extending north to the center line of the road, what is there here, in proof, showing that he designed to reserve to himself the ownership of the fee in the south half of the road ? We are unable to discover a particle of proof of such intention. It is not shown that he retained the ownership in any adjacent soil to which this would be of value if attached, or to the use of which it could be made beneficial on ceasing to be used for a highway. It is obvious, on account of its peculiar shape and small size, that it could be of no practical value by itself; and there is nothing in the language of the i deed necessarily repugnant to the idea that the intention? was to convey to the center line of the road. The words, “south of the road there running, ” refer to the part of the tract, and not to the location of the corner. And when it is borne in mind that the tract had been divided into two parts,—one north and the other south of the center of the road,—and that the south part had for a series of years been so conveyed, it is most reasonable to suppose it was intended by these words to mean the part of the tract on the south side of the road extending north to the center line of the road. Then the north-east corner, the starting point, must fall on the center line of the road. This is strongly corroborated, also, by the succeeding phraseology in the description, “thence running westerly along the line of said road, ” etc., which would seem to clearly mean center line of the road, for there is no other line of the road. The sides of the road are quite different, and if the south side of the road had been intended, it is fair to presume the language would have been to that effect.

In Canal Trustees v. Havens, 11 Ill. 557, this court declared the law applicable to such cases thus: “By the common law, a grant of land bordering on a highway or river carried the exclusive right and title in the highway or river to the center thereof, subject to the right of passage in the public, unless the terms of the grant clearly indicate an intention on the part of the grantor to confine the grantee to the edge or margin. In such case the highway or river is regarded as the boundary or monument, and the purchaser takes to the middle of the monument as part and parcel of the grant. ” This has been approved and followed in Gebhardt v. Reeves, 75 Ill. 307, Rockwell v. Baldwin et al. 53 id. 19, Chicago v. Rumsey, 87 id. 351, and Piper v. Connelly et al. 108 id. 646.

This presumption not being overcome by anything in thevidence here, it must prevail. We must hold the intent was to make the center, and not the south side of the road, the north boundary of the lot conveyed by Hickox to Park, and so holding, the judgment must be affirmed.

Judgment affirmed.


author: Mr. Justice Dickey,

text:
    The Washburn & Moen Manufacturing Company v. The Chicago Galvanized Wire Fence Company.

       The principal opinion in this case will be found in this volume, ante, p. 71.

   Mr. Justice Dickey,

dissenting:

The Washburn & Moen Manufacturing Company granted a license to the Chicago Galvanized Wire Fence Company, dated January 25, 1881, to manufacture 1200 tons, annually, of barbed fence wire of a specified kind, under certain letters patent. The licensee agreed to pay three-fourths of one cent for each pound of barbed fence wire which it should make and sell, and to furnish monthly reports of the quantity made and sold, the payments to be due on the tenth day of each calendar month for the wire sold during the preceding calendar month. The licensor agreed that in case it should thereafter license any other party to manufacture and sell barbed fence wire at a less sum per pound than three-fourths of a cent, then and thereafter the royalty to be paid by the Chicago Galvanized Wire Fence Company, under the license, should be the same as such reduced royalty. On the 26th day of July, 1881, the Washburn & Moen Manufacturing Company granted a license to Jacob Haish to make and sell not more than 10,000 tons, annually, of barbed fence wire of a particular kind. This license contained precisely the same provisions as that issued to the Chicago Galvanized Wire Fence Company, except as to the style of wire and amount of tonnage, and fixed the royalty at three-fourths of one cent per pound. The main controversy is one of fact. It is contended by the appellee that the license to Haish does not express the real contract, and that he was allowed to make and sell barbed fence wire for less than three-fourths of one cent per pound, and that the appellee is entitled to a reduction in royalty so as to correspond with that exacted from Haish. The appellant insists that the true agreement with Haish as to royalty is shown by the license, and that there was no reduction of the rate.

The license by the Washburn & Moen Manufacturing Company to Jacob Haish does not show the entire contract between the parties, as made on the 26th of July, 1881. Haish was the owner of letters patent for barbs and barbed fence wire, and of certain inventions and patents for machines to make barbed fence wire. Litigation was pending in the United States Circuit Court for the Northern District of Illinois, in regard to the patents owned by the respective parties. There were two suits against Haish,—one by the Washburn & Moen Manufacturing Company, and the other by that company and Ellwood,—in which the patents for barbed fence wire w'ere in controversy. There was one suit by Stevens, and another by Haish, against the Washburn & Moen Manufacturing Company and Ellwood, in which the patent for the Stevens machine to make barbed fence wire was involved. Damages were claimed in all of these suits, for infringement. A decision had been made in the cases against Haish, sustaining the validity of a part of the patents of the complainants in these suits, and an interlocutory decree had been entered making a reference to the master to ascertain the damages, and in addition, had been required to pay into court an amount equal to three-fourths of a cent per pound for the wire made after the decision, to abide the order of the court, and under this order he had paid $25,000. If the court adhered to its decision and entered a final decree, an appeal could be taken to the Supreme Court of the United States.

Besides the license to Haish, the parties at the same time executed other papers. First, Haish assigned all of his patents for barbs, barbed fence wire, and machinery for making the same, to the Washburn & Moen Manufacturing Company and Ellwood; second, in consideration of the assignment of these patents, that company agreed to manufacture, by itself or licensees, 8000 tons of barbed wire every year, until February 27, 1894, and to pay Haish seventy-five cents for every one hundred pounds of barbed fence wire manufactured by it or its licensees, upon a quantity not exceeding 4000 tons in any one year, and a further sum of twenty-five cents for the next 4000 tons, provided Haish should first have paid a royalty of seventy-five cents per one hundred pounds on as many pounds made by him under the license to him; third, a license to Haish, by the Washburn & Moen Manufacturing Company and Elhvood, to use exclusively the patents for barbs and barbed fence wire assigned to them by Haish, provided that suits for infringement should not be brought against the licensors or their licensees; fourth, a license to Haish by the same parties, to use the Stevens machine patents, but only to use them in operating under the license issued by them to manufacture 10,000 tons; fifth, mutual releases by the parties for all damages for infringement by the respective parties and the licensees of the Washburn & Moen Manufacturing Company and Elhvood; sixth, stipulation that a final decree should be entered in each of the suits against Haish, for one cent damages, each party to pay his own costs, and allowing Haish to withdraw the $25,105.45 deposited by him in court, and stipulations that the suits by Haish and Stevens on the patents should be dismissed.

If all of the papers executed by the parties on the 26th day of July, 1881, be treated as one contract, the question arises, did the appellant grant a license at a less royalty than to the appellee ? The answer must be in the negative, unless the agreement by the appellant to pay Haish for his patents was a subterfuge and device to refund the royalty paid under the license to him to use the same patents described in the license to appellee. The evidence shows not only that the patents owned and transferred by Haish were considered by the parties themselves as valuable, but that they were in fact of great value. The decision of the United States court was not final, and several of the witnesses who testified as experts declared that the value of the Haish patents was increased by that decision. It was proper for the parties to decide the value within any range which would be evidence of fraud. It can not be said that such a limit was passed. It is said Haish received back an exclusive license to use his patents for barbs and barbed wire; still, he parted with the legal title, and thereby deprived himself of the right to license others, and to sue for damages the licensees of the appellant.

It is also said there is evidence tending to show the Wash-burn & Moen Manufacturing Company to be the owner of an undivided interest in the Stevens machine patent before the transfer by Haish. The proof does not show, satisfactorily, that the appellant did acquire any interest except from Haish. On the 28th of January, 1881, Stevens assigned to Haish letters patent, numbered 222,608, upon barbed fence machines, issued December 16, 1879, and an invention for improvements in barbed fence machines, described in an application for letters patent filed in the patent office December 8, 1877, and also improvements on barbed fence machines, described in an application filed in the patent office July 25, 1879. The assignment was recorded January 31, 1881. The legal title was thus conveyed to and vested in Haish, who, on July 26, 1881, conveyed the same to the Washburn & Moen Manufacturing Company and Ellwood. The contention of the appellee is, that Stevens sold an undivided half of the inventions to Dillman by contract dated February 19, 1877, being an equitable title, which was transferred by the Lock-stitch Fence Company, the assignee of Dillman; but there is no evidence that the inventions covered by the contract were the same embraced in the patents and applications mentioned in the assignment to Haish. Nor is there any proof that Haish had notice of a sale to Dillman. Besides this, there is a conflict of evidence as to whether Dillman paid Stevens according to the contract. Even if the appellant acquired an undivided half under Hillman, Haish had the other undivided half, and could grant licenses at his pleasure, and thus destroy a monopoly. The value secured from Haish by the assignment of the Stevens inventions was a subject for negotiation and agreement of the parties, within reasonable limits. It can not be said that the amount fixed was so large as to be evidence of fraud. It is not unusual to pay for patents an annual sum, and the parties in this case made the annual payments contingent upon Haish continuing to manufacture under the patents of appellant, and paying a royalty equal to the sum to be paid for his patents. There was nothing to prevent the appellant from fixing the amount of tonnage for each of its licensees, and there is no evidence that the 10,000 tons allowed to Haish was so large as to be fraudulent, and intended to allow him to make and sell 4000 tons free.

The appellee contends that the parol evidence proves the real contract was not expressed in the writings.- The record shows various attempts by the parties and their attorneys to effect a settlement, and the witnesses testify to propositions and counter propositions; but there is no satisfactory proof that any agreement was actually made, different from that shown by the papers. If the appellant agreed with Haish to receive less royalty than had been exacted from the appellee, and these writings showing a different contract were executed for the purpose of deceiving the other licensees, it would be proper to prove the true contract by parol. The negotiations preceding the execution of the papers are not evidence to establish another contract. While some of the witnesses say there was an intention to so frame the papers as to evade the covenant with former licensees, they are contradicted by other witnesses. The evidence has not the force and weight necessary to overthrow the executed written contract.

The court below found by the decree that a license had been issued by the appellant to the appellee to manufacture and sell 1200 tons in each license year, commencing at the date of the license, January 24, 1881, by which a royalty of three-fourths of a cent per pound was to be paid monthly. The court further found that the appellant granted a license to make and sell 10,000 tons in each license year, July 26, 1881, containing the same terms as to royalty on its face, but that appellant in fact granted to Haish the right to manufacture and sell 4000 tons per annum without any royalty, 4000 tons for a royalty of one-half of a cent per pound, and the remaining 2000 tons for a royalty of three-fourths of a cent per pound. This was a finding that Haish was allowed two-fifths of his allotted tonnage free, two-fifths for a royalty of one-half of a cent per pound, and one-fifth for a royalty of three-fourths of a cent per pound. The licensor had the right to fix the tonnage for every licensee, and no licensee was required to make his entire tonnage. Assuming the finding of the decree to be correct that the appellant granted to Haish a license at a less sum per pound than three-fourths of a cent, and that the royalty to be paid by appellee should “be the same as such reduced royalty,” according to the tenth paragraph of appellee’s license, the decree was erroneous, because it permitted the appellee to manufacture and sell its entire annual tonnage without the payment of any royalty. The proper proportion should have been to allow the appellee to make and sell two-fifths of its 1200 tons free, two-fifths for a royalty of one-half of one cent per pound, and one-fifth for a royalty of three-fourths of one cent per pound.

I also think the decree ought to be reversed because Ell-wood was not made a party.


author: Opinion by Mr. Justice Catón :

text:
    NOVEMBER TERM, 1849, AT MOUNT VERNON.
    Elijah Fairlee, vs. The People.

      Error to Pulaski.

    Where the intent with which an act is done, is charged to have been felonious, it is not necessary to aver in the indictment, that the act itself was unlawful or felonious.
    An act apparently lawful in itself, when done with a felonious intent, becomes thereby unlawful.
    Elijah Fairlee was indicted for the murder of Perry Herrill, in the Johnson county Circuit Court. A change of venue was allowed to Pulaski county. At the special term of Pulaski county Circuit Court, held in November, 1848, after a motion to quash the indictment had been overruled, the case came on for trial before Denning, Judge, and a jury. The jury returned a verdict for manslaughter, and found that defendant should he confined to the penitentiary for four years and six months. After verdict, motions for a new trial and in arrest of judgment were made, and overruled.
    The indictment was as follows:

    Of the October term of the Johnson Circuit Court, in the year of our Lord one thousand eight hundred and forty-eight.
    The grand jurors chosen, selected and sworn in and for the county of Johnson, in the name and by the authority of the people of the state of Illinois, upon their oaths present: That Elijah Fairlee, late of the county aforesaid, not having the fear of God before his eyes, but being moved and seduced by the instigation of the devil, and of his malice aforethought, wickedly, contrivingly, and intending one Perry Herrill with the small pox, wilfully, feloniously, and of his malice aforethought, to kill and murder, on the tenth day of June in the year of our Lord one thousand eight hundred and forty-seven, with force and arms at the county of Johnson, and state of Illinois, with a large quantity of a certain dangerous and deadly matter, called virus of small pox, to wit: the quantity of two drachms of the said virus of small pox, did then and there innoculate Lacklin L. Weaver, Barnet Weaver the younger, Catharine Ann Weaver, Jasper N. Weaver, and Littlejohn Weaver, then and there became and was inflicted with the small pox; the said Elijah Fairlee, then and there well knowing that the said Lacklin L. Weaver, Barnet Weaver the younger, Catharine Ann Weaver, Jasper N. Weaver, and Littlejohn Weaver would then and thereby become infected with the small pox, and he, the said Elijah Fairlee, then and there also well knowing the said virus of small pox to be a dangerous and deadly matter, calculated and tending to cause the small pox as aforesaid, and that the jurors aforesaid, upon their oaths aforesaid, do further present that the said small pox with which the said Lacklin L. Weaver, Barnet Weaver the younger, Catharine Ann Weaver, Jasper N. Weaver, and Littlejohn Weaver were then and there infected as aforesaid, was then and there an infectious, dangerous and fatal disease, by means whereof the said Perry PI err ill then and there became and was infected with the said disease called the small pox aforesaid, by means whereof he, the said Perry Herrill, then and there became sick and greatly distempered in his body, and the said Perry Herrill, of the disease aforesaid, with which he was, so infected as aforesaid, and of the sickness occasioned thereby, from the said tenth day of June in the year of our Lord one thousand eight hundred and forty-seven, until the fifteenth day of the same month in the same year, at the county aforesaid, did languish and languishing did live, and on which said fifteenth day of June, in the year last aforesaid, the said Perry Herrill, at the county of Johnson of the said disease, and of the sickness occasioned thereby, died, and so the jurors aforesaid, upon their oaths aforesaid, do say that the said Elijah Fairlee, the said Perry Herrill in manner and form aforesaid, feloniously, wilfully, and' of his malice aforethought, did kill and murder contrary to the form of the statute in such case made and provided, and against the peace and dignity of the people of the state of Illinois.
    (Signed,) “ S. S. Marshall, State’s Jlttorney P'

    The evidence in this cause is preserved in bills of exceptions. And on behalf of the prosecution is in substance as follows: that in the year 1847, defendant, as a physician, was called on by one Barnet Weaver to vaccinate his children with the kine pox, that defendant agreed to do so, and accordingly afterwards, in a day or two, went to the house of said Weaver, and in pursuance of said promise, did vaccinate or innoculate the children. That afterwards, in about eight or ten days, the children became sick of a disease believed to be small pox. That the small pox was at that time, and had been for more than one month previous, within one mile of Weaver’s.
    That Perry Herrill, the deceased, came to the house of Weaver while his children were sick with said disease. He was also frequently at one Standard’s, where the family had the small pox. That upon one occasion Perry Herrill and defendant were at Weaver’s at the same time; defendant requested Perry Herrill to smell of a phial, saying, “does not it smell like a dead rat?” That Perry Herrill sickened and died in Johnson county, in July, 1847, of the disease called small pox. And that some days before he died, he said that he wished that he had taken a chair and knocked Fairlee down, and divers conversations of defendant were proved in which ho boasted of his powers to cure the small pox, and that he had it locked up in his saddle bags.
    On behalf of the defendant, it was proved that the small pox was brought to the neighborhood of Weaver, by Mrs. Gore, before defendant came to that neighborhood, and that several persons had taken that disease of her. That the deceased, Perry Herrill, was frequently with those who had taken the disease of Mrs. Gore, before he took sick with the disease.
    Errors assigned, viz:
    1. The Court erred in overruling motion to quash.
    2. The Court erred in permitting improper evidence to be given to jury.

      3. The Court erred in overruling motion in arrest of judgment and for a new trial.
    4. The Court erred in giving instructions one and two.
    5. The Court erred in rendering judgment against defendant.
    J. Dougherty, for plaintiff in error, made the following points:
    The indictment is bad on demurrer or in arrest of judgment, because it does not charge the act of innoculating at Weaver’s, as having been done with malice aforethought, or feloniously. Nor does the indictment charge the act as being done unlawfully, or without due caution or circumspection.
    “It is necessary to state that the act, by which the death was occasioned, was done feloniously; and especially, that it was done with malice aforethought.” See 1 Russell on Crimes, page 563; Archbold’s Cr. Pl. 49; Revised Statutes, page 155, section 25.
    “ In criminal cases, motion in arrest of judgment opens the entire record for examination, and reaches any apparent defect therein.” See 3d Scammon’s Rep., Gardner vs. The People, pages 87 and 90.
    The evidence in this case does not fix upon the defendant any crime whatever. The only act charged upon him by the evidence is, that of innoculating Weaver’s children; and this was done in the capacity of a phj'sician, and had any one of his patients died under his treatment, while he was honestly endeavoring to cure or prevent disease, he would not be guilty of murder or manslaughter. See 6th Massachusetts Rep., p. 132, Commonwealth vs. Thompson.
    The real and only pretence for the prosecution in this case, as will be seen by the evidence, was a charge of spreading the disease known as the small pox, whereby the deceased, Perry Heri’ill, died. But in this the prosecution wholly failed, as will be seen by reference to the evidence. This offence, if indictable in this state, would not subject the defendant to confinement in the penitentiary. See 1 Russell on Crimes, page 108-9.
    The evidence in this case does not show that the death of Herrill was occasioned by some bodily injury, done by defendant to him, by force, by poison, or any other mechanical means, which occasioned the death. The only time it appears that they ever saw each other, was at the time deposed to by Weaver, when Fairlee presented a phial to the deceased, and he smelled of it, saying afterwards that the phial smelled like a dead rat. And it is not pretended that this could in anywise occasion the death, as will appear by reference to the indictment and evidence. See 2d Starkie’s Evidence, part 1, page 711, note (r.) See, also, Archbold’s Or. Law, page 406-7.
   Opinion by Mr. Justice Catón :

The plaintiff in error was indicted in the county of Johnson for the murder of Perry Herrill. The venue was changed to the county of Pulaski, where he was tried and a verdict of manslaughter returned. A motion in arrest of judgment was overruled, and the prisoner was sentenced to the penitentiary, according to the verdict. He now prosecutes a writ of error, and assigns the insufficiency of the indictment 3 to which his counsel have raised several objections.

The indictment, when stripped of its verbiage, amounts to this : the grand jurors present, that Elijah Fairlee, of his malice aforethought. Perry Herrill with the small pox to murder, did innoculate the Weavers, with virus of small pox, whereby they became infected with that disease, as he had intended, and that the virus of small pox was a deadly matter, tending to create the small pox; and the grand jury further present, that the small pox with which the Weavers were infected, as aforesaid, was an infectious and fatal disease, by means whereof Perry Herrill became infected with the disease of which he died, and so &c.

It is first objected to the indictment, that the innoculation of the Weavers is not charged to have been feloniously done. The precedents for indictments for murder charge the act as well as the intent to have been felonious ; but we are not prepared to say that where the intent with which the act was done, is charged to have been felonious, it is also necessary to aver that the act itself was unlawful or felonious. We are inclined to the opinion that an act apparently lawful in itself, when done 'with a felonious intent, becomes thereby unlawful. But waiving this objection, there is another which is fatal to this indictment. It is too uncertain to sustain the conviction. It does not show that the prisoner is guilty of the crime with which it attempts to charge him. It no where appears that Fairlee knew or expected that Herrill would contract the disease from those whom he inno culated. Fairlee is charged with intending to murder the deceased by the small pox, but it is not alleged that he accomplished his object, by innoculating the Weavers, and thus communicating the fatal disease to Herrill, or that he even intended to do so. The real charge is, that the disease which the prisoner communicated to the Weaver’s was an infectious and fatal disease, and that by reason of that disease being fatal and infectious, Herrill took it and died. From ought that appears, he may have taken it from some other person whom the prisoner never saw. Fairlee is not responsible for the disease being infectious, and it is only by reason of its being infectious that Her-rill became diseased, and so far as appears, without the agency or knowledge of the plaintiff in error. Were it shown that he had innoculated the Weavers with the design thereby of communicating the disease to the deceased, and thus producing his death, and that he had taken the disease of them, and died in consequence of it, according to such design, then it might be said that he was guilty of the act with which he is charged. As it is, there is no connection shown between the act done by the prisoner and the death of Herrill, and for that reason, at least, the indictment is fatally defective.

The judgment of the Circuit Court is reversed, and the prisoner ordered to be discharged.

Judgment reversed.


author: Opinion by Mr. Justice Catón:

text:
    Jefferson Ammons, appellant, vs. The People, use of &c., appellees.

      Appeal from Clinton.

    An order of a Probate Court, directing a guardian to pay over to bis successor a certain amount in bis bands, belonging to the ward, is conclusive upon the guardian, unless the order can be impeached for fraud or collusion.
    William C. Neely, as guardian, was ordered by the Probate Court to give supplemental security on his bond, already executed. Ammons signed and sealed said bond as such security. Held, that Ammons became liable as an original obligor.
    Debt on bond brought in the name of The People to use of Hoke, guardian, &c., against Ammons, who was one of the sureties upon a guardian’s bond. The case came on to be heard at May terra, 1849, before Underwood, Judge, and a judgment was rendered for plaintiff for $109 40. Appeal by defendant.
    S. Breese and G. Kcerner, for appellant.
    T. J. Lecompte, for appellee.
   Opinion by Mr. Justice Catón:

This action was commenced against one of the sureties, upon a guardian’s bond, dated in 1837. And the only breach assigned is, that the guardian refused to pay over to his successor the sum of $86 83, in obedience to an order made on the 9th day of January, 1845, by the Probate Court of Clinton county. The defendant filed several pleas. To the second and fifth of which, a demurrer was sustained; of which the appellant now complains.

The second plea denies that any money ever came to the hands of the guardian, belonging to the ward. This plea is insufficient. That question had already been tried by a Court of competent jurisdiction, which had determined and adjudged that the guardian was liable to pay over to his successor the sum of $86 83, either for money received, or effects unaccounted for, belonging to the ward. The plea may have been true, and the adjudication still proper and just. He may have received effects other than money to that amount, for which he had not accounted. This was a lawful order of that Court, which, by the very terms of the condition of the guardian’s bond, his sureties undertook that he should comply with. This was an adjudication obligatory as well upon the sureties as upon the guardian himself; unless, indeed, they could impeach it for fraud or collusion.

In the fifth plea, the defendant avers that he was not originally a party to the bond, but that, on the 16th of January, 1844, “the Court of Probate made an order on the said William C. Neely, guardian as aforesaid, requiring him, the said Neely, to give supplemental security on said bond, signed and executed as aforesaid.” He then avers that on that day “ he signed and sealed said bond as supplemental security as aforesaid.” The plea then further avers, that Neely had faithfully discharged his duties as guardian, and had rendered a just account of his guardianship, from time to time, to the Probate Court as required, and had complied with all the lawful orders of the Court, relative to the goods and chattels of the ward that came to his hands since the last mentioned day; and that neither at the time when the defendant executed the bond, nor subsequently, had the guardian any money or effects in his hands belonging to the ward. The sufficiency of this plea depends upon the question, whether the defendant became liable as an original obligor. That such was the intention of the parties, and the legal effect of the undertaking, we have no doubt. The guardian, with certain sureties, had, in 1837,'executed this bond, and in 1844 he Avas required, not to give a new bond with other sureties, but to give supplemental security on this bond, and, in obedience to that order, the defendant executed and became a party to the old bond, without any change, either in its date or in any other respect. This clearly manifests the intention, that the liability of the defendant should be the same as if he had signed it at the same time with the other parties to it. It is but a question of intention, to be gathered from the nature of the transaction. The bond, at the time he executed it, was already an existing obligation, and had been for years binding upon the guardian and his other sureties, and we are not to suppose that they intended to create a new and independant obligation so that the same instrument Avould impose different liabilities upon the various parties to it. Indeed, unless we hold the liability of the defendant to be that of an original obligor, we must decide, in effect, either that the bond ceased to be obligatory upon the original parties, or that it never was binding upon the defendant. Necessarily the bond must impose the same obligations upon all the parties that are bound by it. Suppose the other obligors had been sued in this action with the present defendant, this plea, if sustained, Avould have been as available to them as to him, for in this form of action the recovery must be against all of the defendants or none—unless where a personal defence is interposed, such as infancy or bankruptcy; and the same amount must be recovered against all. Indeed, the execution of this bond by the defendant, was entirely a nugatory act, or else his liability upon it is the same as if he had executed it at the same time with the others, and is identically the same as theirs. The demurrer was properly sustained to both these pleas. There is no other question presented by this record, worthy of serious consideration. The judgment of the Circuit Court is affirmed, with costs.

Judgment affirmed.


author: Opinion by TREAT, C. J.:

text:
    SAMUEL HAZELL, plaintiff in error, vs. CHARLES A. SHELBY, defendant in error.
    Error to Massac.
    That part of the third section of the sixty-sixth chapter of the Revised Statutes, which provides that "every action upon the case for words, shall be commenced within one year next after the words spoken, and not after, "is not broad enough to include actions for libel, - but is confined exclusively to actions for verbal slander. -
    It is a familiar principle, that a stMuto of limitations shall not be applied to cases not clear.ly within its provisions.
    This was an action for libel by I-Iazell against Shelby. Shelby pleaded the statute of limitations, that he was not guilty, within one year of the time of the commencement of the suit. To which plea there was general demurrer, and joinder. The demurrer was overruled at May term, 1849. Oase was heard before Denning, Judge. The defendant in the Circuit Court sued out this writ of error.
    The error assigned, was the sustaining of the demurrer to the plea.
    J. DOUGHERTY, for plaintiff in error, says:
    That the action for written slander is not barred at the expiration of one year, and is only barred at the expiration of five years from and after the publishing thereof, and refers to Revised Statutes, page 349, sections 1 and 3.
    The statute of limitations is to be strictly construed. See Angell on Limitations, page 532; 1st Starkie on Slander, page 473-4.
    T. G. C. DAVIS, for defendant in error:
    Limitations of actions are founded on considerations of pub-lie policy. Angell on Limitations, page 7, sec. 9. They have for their end, the prevention of litigation, and should be strictly interpreted to give quiet and repose to society.
    Every thing should be included which is not exempted from or excnpted out of the operation of the statute of limitations, especially in actions for tort.
    The rule of decision in Mississippi should be adopted here. Angell on Lim., page 326, note.
   Opinion by TREAT, C. J.:

This was an action for libel. The defendant pleaded that the cause of action did not accrue within one year before the commencement of the suit. The Court overruled a demurrer to the plea, and judgment was entered for the defendant.

If the plea can be sustained, it must be on the ground that the cause of action is embraced by the 3d section of the 66th chapter of the Revised Statutes, which provides that every action upon the case for words shall be commenced within one year next after the words spoken, and not after.” This section is not broad enough to include actions for libel, but is confined exclusively to actions for verbal slander. It is strictly applicable in its terms to the latter class of actions, and cannot be extended by construction to other actions, although the same reasons may exist for limiting them. It is a familiar principle that a statute of limitations shall not be applied to cases not clearly within its provisions.

A British statute limited the bringing of actions for words spoken to two years, and it was held by the courts not to extend to libels. Angelí on Limitations, 325.

Cases within the reason, but not within the words of the statute, are not barred, but may be considered as omitted cases, which the legislature did not deem proper to limit. See Bedell vs. Janney, 4 Gilman, 193, and authorities there cited. The Circuit Court erred in overruling the demurrer to the plea. Whether the action for written slander is barred in five years, under the first section of the chapter before referred to, or whether it is a casus omissus, arc questions which need not now be decided.

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

Judgment reversed,.


author: Opinion by Mr. Justice Trumbull:

text:
    Zepaniah Taylor, administrator, and Mary Taylor, administratrix of Samuel N. Taylor, deceased, plaintiffs in error, vs. Job Davis, administrator of Amaziah Davidson, deceased.

      Error to Massac.

    The first section of the sixty-first chapter of the Devised Statutes, makes valid all “ contracts, promises, assumpsits or undertakings/' made in good faith for the sale of improvements made on the public lands.

      This statute does not require that there should in every case be a complete contract, as defined by the common law, but authorizes a recovery upon such promises and undertakings as do not strictly amount to a contract.
    This statute authorizes a. promise, which is a mere gratuity, to be enforced. The presumption is, that a party accepts a proposition for his benefit, unless his dissent be shown.
    This was an action originally commenced before a justice of .the peace, by the plaintiff in error against the defendant in error, to recover the value of an improvement on Congress land. A jury was impanneled before the justice, who found a verdict for the plaintiff for twenty-four dollars and costs of suit.
    The defendant took an appeal to the Circuit Court of Massac county. And at the May term of 1849 of said Court, the cause was tried before Denning, Judge, and a jury, which resulted in a verdict for the defendant. The plaintiff moved the Court for a new trial, but the motion was denied and judgment was rendered for the defendant for costs.
    The plaintiff excepted to the decision of the Court in refusing to grant a new trial, and tendered a bill of exceptions, which was filed. The plaintiff below sues out the writ of error.
    R. S. Nelson, for plaintiff in error.
    The verdict is against law and evidence. See Revised Stat., 336, chapter 61, section 1; Appendix to Revised Statutes, 617; Tucker vs. Wood, 12 Mass., page 189.
    The Court erred in its instructions to the jury. See Wilcox vs. Kinzie, 3 Scammon, p. 223; Stout vs. McAdams, 2 Scam., page 68, Humphrey vs. Collin, 47.
    The Court erred in refusing to grant a new trial. Barton vs. Clark, 1st Con. Rep., page 472—3 and 5; Hammond vs. Wadham, 5 Mass. Rep., 555; Tucker vs. Woods, 12 John., page 189; Copperwhaite vs. Jones, 2 Dallas, page 56.
    T. C. G. Davis, for defendant in error:
    The evidence in this case shows there was no complete contract between the parties. To make a contract complete, both parties must agree to it. Chitty on Contracts, page 9.
    They must assent to the same subject matter in the same sense. 1st Sumner, page 218.
    If one party does not accede to a promise as made, the other is not bound by it. 7th John., 470.
    A new trial will not be awarded, unless the verdict of the ju~ ry is manifestly and palpably against tbe evidence. 5th Gilman, 72; 1st Scammon, 128, 420, 532; 2d Scammon, 350, 358; 2d Gilman, 618.
    The instructions given by the Court, at the instance of defendant, could not mislead the jury, and therefore it was not erroneous.
   Opinion by Mr. Justice Trumbull:

This suit was originally commenced by Samuel N. Taylor against Amaziah Davidson, before a justice of tbe peace, to recover for an improvement made upon government land. The plaintiff recovered judgment before the justice, which was reversed upon appeal to the Circuit Court, and the refusal of that Court to grant a new trial is the only question in the case.

The bill of exceptions contains the whole evidence, from which it appears that Davidson, in a conversation with Taylor, in reference to an improvement which the latter claimed upon Congress land, stated, “ that he would pay him for said improvement what it was worth to him, said defendant.” Another witness testified that “ defendant Davidson said to him, the witness, that Taylor had made a pass at him relative to pay for the improvement, then recently entered by defendant, and that defendant had said to Taylor that he had always thought that if he should ever enter an improvement of another man, made on Congress land, he would pay him whatever it was worth, but that he would not be willing to pay him, Taylor, what he wanted for his improvement, but he was willing to leave it to two disinterested men.”

It was further proven that the improvement was made by Taylor, and that it was worth twenty-five or thirty dollars, at the time Davidson entered it.

The testimony of Lefevre, who was introduced as a witness, first by the plaintiff and subsequently by the defendant, is so confused and uncertain as it appears in the record, that it is difficult to understand or perceive how it could have any particular bearing in the cause. In one part of Lefevre’s testimony he speats of the pre-emption of one Hagarty, mentioned by witness Moody, when in fact Moody had not in his evidence said anything about a preemption of Hagarty, or of any other person. It is also impossible to gather from the record whether the conversation detailed by Lefcvre, as having taken place between himself and Taylor, occurred at the time witness went to the land office to make the entry for Davidson, or when he happened there at some other time.

The foregoing Avas in substance all the testimony in the cause, and Ave think it makes out such a case as under our statute should have entitled the plaintiff to a verdict. It is objected, however, that to make a contract complete both parties must agree to it, and that there is no eAÚdence that Taylor assented to the proposition of Davidson, to pay him for the improvement what it was worth to him, Davidson. The statute, R. S., ch. 61, sec. 1, is very broad, and makes valid all contracts, promises, assumpsits or undertakings,” made in good faith for the sale of improvements made on the public lands. This statute does not require that there should in every case be a complete contract as defined by the common law, but authorizes a recovery upon such promises and undertakings as do not strictly amount to a contract. The witness who testifies to the promise in this case does not state when it was made, but from what the next witness says, that Davidson told him about a pass ” made by Taylor in reference to pay for the improvements then recently entered by Davidson, it is apparent that the promise was made after the entry of the land. In such a case the promise is a mere gratuity, which the statute authorizes to be enforced. R. S., 617. The presumption is, that a party accepts a proposition which is for his benefit unless his dissent be shown. After the entry of the improvement by the defendant, the plaintiff was at his mercy, and could only recover upon his voluntary promise. This case is unlike that of an ordinary sale of property, where one party offers to give a certain price for it, Avhich the other agrees to take. Here the plaintiff’s improvement was irredeemably gone. He could not fix a price upon it, but was bound to lose it or accept what the plaintiff might please to give or promise to pay him. In such a case the fact that plaintiff accepted the proposition, may well be implied, without evidence to show it affirmatively. If it appeared that the promise was made before the entry of the land, some proof of acceptance might be required, as till entered the owner might claim and enforce his rights to an improvement upon public land.

Looking at the evidence as contained in the record, we are satisfied that the verdict was manifestly against it, and should have been set aside. The jury, most probably, labored under a misapprehension as to what was necessary to constitute a contract in this case.

The judgment of the Circuit Court is reversed and the cause remanded. Judgment reversed.


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    George D. Gordon, appellant, vs. Jonathan Freeman, surviving partner of G. A. Koblitz.

      Appealfrom Alexander.

    If the legal or equitable interests in partnership effects have been transferred to an assignee, a debtor who should pay a debt to either of the partners, after notice of the assignment, would be liable to pay again to assignee.
    After a dissolution of a partnership, either party may receive a debt due the firm, notwithstanding an agreement between the partners, of which the debtor has notice, that one of their number, or a third person, shall alone collect and pay the debts.
    This was an action of debt on account &c.; pleas nil debet and payment. The cause came on to be heard at May term, 1848, before Denning, Judge, and a jury. Verdict and judgment for plaintiff for $175 40. Motion for a new trial denied, and defendant Gordon appealed.
    Plaintiff below proved his account filed, being for goods, wares and merchandize.
    The defendant introduced the following receipt: “ Received of George D. Gordon, the sum of one hundred and eighty-five dollars, in full of all accounts, Cairo, June 10th, 1847. G. A. Koblitz, for G. A. Koblitz & Co.3” which was read to the jury.
    Evidence was adduced to show that defendant, Gordon, had notice of the authority given to Freeman to collect the debts of the firm of Koblitz and company.
    W. B. Scates, for appellant.
    D. J. Baker, for appellee.
   Opinion by Mr. Justice Trumbull:

Koblitz & Freeman, who had been partners in trade, under the name of G. A. Koblitz & Co., dissolved, and by a written assignment placed tlieir effects in tlie hands of a third person, for the purpose of collecting and paying tlieir debts. Subsequently, the assignee resigned the trust, and by consent of Koblitz placed the effects of the firm in the hands of Freeman, the other partner, who was verbally authorized to act in the place of the first assignee, and collect and pay the debts. After this arrangement, of which Gordon, who owed the firm an account, had notice, he obtained from Koblitz, in the name of the firm, a receipt in full of all demands. Freeman, in the name of the firm and as surviving partner, prosecuted this suit against Gordon upon the account, which Koblitz had previously receipted, and in the Circuit Court recovered judgment. Gordon, under the plea of payment, gave in evidence the receipt which he had obtained from Koblitz, in the name of the firm, notwithstanding which the jury found against him, and the Court refused to set aside the verdict, which is the error complained of.

Assuming that Gordon paid the account to Koblitz, as the receipt states, and there is nothing in the record to show any collusion, or that he did not, can he be made to pay it again to Freeman, who had been authorized to collect and pay the debts of the firm ? This will depend upon the fact whether the partners by the assignment transferred any interest in the partnership effects to the assignee, or whether they simply clothed him with authority as their agent to collect and pay the debts of the concern. There is nothing in the record to show that the assignee had any interest in the effects transferred. All that appears is, iCthat the firm of G. A. Koblitz & Co. assigned to him all partnership effects of the said company, and dissolved partnership, for the purpose of paying the debts of the firm and collecting the debts due the firm.”

The written assignment is not set out in the record, and the statement of its contents, as given, shows that the assignee was a mere agent to collect and pay debts. The manner in which the assignee resigned his trust, by simply handing over the partnership effects to one of the partners, would seem to indicate that he had no interest in them; and the fact that he may have been styled an assignee, would not give him any interest if he was clothed with a bare authority to collect and pay debts. Such an authority would be revocable at any time, and either partner would be at liberty to receive debts due the firm, although they might have authorized another to do it for them. It would he otherwise, if it appeared that the legal or equitable interest in the partnership effects had been transferred to the assignee; in that event, a debtor who should pay a debt to either of the partners after notice would be liable to pay again to the assignee; but the rule seems to be well settled by the authorities, that after a dissolution of a partnership either partner may receive a debt due the firm, notwithstanding an agreement between the partners, of which the debtor has notice, that one of their number, or a third person, shall alone collect and pay the debts. Collyer on Partnership, section 638; Bristow vs. Taylor, 2 Starkie’s Rep., 50; Napier vs. McLeod, 9 Wend., 120.

Judgment reversed, and cause remanded for a new trial.

Judgment reversed.


author: Opinion by Treat, C. J.:

text:
    Sullivan vs. Dollins.

      Jlppeal from Franklin.

    The presumption in the Supreme Court is, that the clerk of the circuit was satisfied of the right of the attorney to use the name of the appellant, to an appeal bond,, before he accepted such bond.
    The authority'of an attorney to execute an appeal bond, will only be enquired into when it is questioned by affidavit.
    This was a motion made to dismiss the appeal, for reasons which are fully stated in the opinion.
    S. Breese, for the motion.
    W. B. Scates, contra.
   Opinion by Treat, C. J.:

The appeal bond in this case is executed in the name of the appellant “by II. B. Montgomery, his attorney.” A motion is made to dismiss the appeal, because the authority of the attorney does not appear. The motion will be denied. The presumption here is that the clerk of the Circuit Court was satisfied of the right of the attorney to use the name of the appellant before he accepted the bond. This Court Vill not enquire into his authority until it is questioned by affidavit. Campbell vs. State Bank, 1 Scammon, 423. In this class of cases the Court will require the proof of the authority to be exhibited, on the filing of an affidavit, stating the belief of the appellee, or his attorney, that the bond was signed without legal authority-

Motion denied.


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    Thomas P. Ayres, appellant, vs. Robert R. Kelley, appellee.

      Jlppealfrom Williamson.

    A plaintiff may, under the replication of de injuria, to the plea of son assault demesne, without a special replication or a new assignment, show that the defendant's battery was excessive.
    The replication de injuria is a general traverse of the whole plea, and under it the plaintiff is at liberty to adduce any proof that tends to disprove any of the facts alleged in the plea.
    It is only where the plaintiff seeks to introduce new matter, which shows that the facts stated in the plea, though tame, do not justify the trespass, that he is required to reply specially, or new assign.
    It is the right of either party to a suit, to abandon any substantive part of his claim or defence.
    This was an action of trespass, for assault and battery, by Kelley against Ayres. Heard at the September term, 1849, before Denoting, Judge, and a jury. Verdict and judgment for plaintiff for $33 33. The defendant appealed. The defendant filed two pleas—1st, not guilty; 2d, son assault demesne. Before the trial of the cause defendant moved the Court for leave to withdraw his plea of not guilty, which was denied by the Court. The denial of this motion is assigned for error.
    J. Dougherty, for appellant, insisted:
    1st. That the motion to withdraw a plea is a motion of course, and refers to Tidd’s Practice, page 674.
    2d. If the defendant justifies in an action of trespass, and the plaintiff relies on any fact or circumstance which either deprives the defendant of the justification, &e., he must reply it specially, instead of replying de injuria sua, Sec., because such fact or circumstance cannot be given in evidence under the issue de injuria. Starkie’s Evidence, page 1134, note a; 1 Chitty on Pleading, 592, 593, and 414; Warrel vs. Clare, 2 Campbell, 629; 15th Mass., 347.

      R. F. Wingate, for appellee.
   Opinion by Treat, C. J.:

This was an action of trespass, for an assault and battery. The defendant pleaded not guilty, on which issue was taken; and son assault demesne, to which the plaintiff replied de injuria. Previous to the trial, the defendant asked leave to withdraw P^ea °f not guilty? which the court denied. On the trial, the Court refused to instruct the jury “ that, if the complainant committed the first assault, the verdict should be not guilty;” but instructed them that if the defendant carried his resistance further than was necessary in self defence, they should find for the plaintiff.

It is insisted that, under the issue formed in this case, the defence was complete on proof that the plaintiff committed the first assault, although the defendant may have used more force than was necessary to repel it. There are some authorities that favor this view of the case, but the better opinion seems to be, that the plaintiff may, under the replication of de injuria to the plea of son assault demesne, and without a special replication or a new assignment, show that the defendant’s battery was excessive. It is so laid down in 2 Greenleaf’s Ev., s. 95; 1 Stephens’ N. P., 216, and 1 Chitty’s Pl., 626, 10th Am. Ed.; and expressly decided in the cases of Fisher vs. Bridges, 4 Blackford, 518, and Curtis vs. Carson, 2 New Hampshire, 539. In Bennett vs. Appleton, 25 Wendell, 371, it was held, in an action of assault and battery, where molliter manus impossuit was pleaded, that the plaintiff could, under the replication de injuria, recover damages for an excess of force on the part of the defendant. In Hanneu vs. Edes, 15 Mass., 347, where the defendant to an action for an assault and battery pleaded that as master of a vessel he moderately chastised the plaintiff, one of the crew of the ship, for a wilful disobedience of orders, to which the plaintiff replied de injuria, the Court held that it was competent for the plaintiff to prove that the beating was excessive, and beyond all proportion to the offence committed. Those cases are not distinguishable in principle from the one before us. The replication de injuria is a general traverse of the whole plea, and under it the plaintiff is at liberty to adduce any proof that tends to disprove any of the facts alleged in the plea. It is only when the plaintiff seeks to introduce new matter, which shows that the facts stated in the plea, though true, do not justify the trespass, that he is required to reply specially or new assign. 2 Green-leaf’s Ev., s. 633. The plea in this case, pursuing the form in 3d Chitty’s Pl., 1068, alleges, that the defendant committed the act complained of in self defence, “necessarily and unavoidably,” and did “no unnecessary damage to the plaintiff.” A material averment of the plea is, that no more force was used than was necessary to repel the assault. If that degree of force was exceeded, the averment fails, and with it the defence. There was no error in the instructions of the Court.

We think, however, that the Court erred in not allowing the defendant to withdraw his plea. The plaintiff has an unqualified right to dismiss his whole case, or any substantive cause of action stated in his declaration. The rights of the parties should be reciprocal. The defendant should be permitted to abandon his whole defence, or any distinct part of it. This is a matter of course. The Court has no discretion over it. How the plaintiff can be injured by the unconditional withdrawal of a plea, we are at a loss to conceive. In this case, it removed the burden of proving his cause of action. It was insisted on the argument that the defendant was not prejudiced by the refusal of the Court. It may be otherwise. His object in withdrawing the plea may have been to dispense with the further attendance of the witnesses relied on to prove the cause of action, and thereby diminish the amount of costs which he might be adjudged to pay-

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

Judgment reversed.

«Catón, Justice, said, I am not prepared to concur in reversing this judgment;


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    Gaty, Cune and Glasby, appellants, vs. Charles Pittman, appellee.

      Appeal from St. Clair.

    A recorded deed Trill take priority of an attachment, levied before the deed was recorded, if a notice of the levy of the attachment was not filed with the recorder.
    The Court will not presume that the sheriff had performed his duty, by filing the proper certificate of an attachment with the recorder. That is a fact to be proved.
    This was an action of ejectment, commenced at May term, 1845, by Gaty and others vs. Bagaw. The first trial resulted in a verdict for plaintiffs, and a judgment. . The defendant, under the statute, set the judgment aside.
    There was a second trial at the May term, 1846, which resulted in a verdict for the defendant. The plaintiffs, under the statute, set aside the verdict, and a new trial was had at the April term, 1848, which resulted in a verdict for plaintiffs. At a former term Pittman, the present defendant, was substituted for Bagaw. From the latter judgment defendant appealed. The Supreme Court reversed that judgment, remanded the case, and a new trial was had, at September term, 1849, before Underwood, Judge, and a jury, and verdict and judgment for the defendant.
    A motion for a new trial was made and overruled. The plaintiffs then appealed.
    Upon the trial it was admitted by both parties that the title to the land in question was on the 22d day of December, 1841, in one John Berry Meacham; both parties claiming under him.
    Plaintiffs showed in evidence, two attachments levied on said lands, on 31st December, 1841; also two judgments upon said attachment suits, with award of special executions on the land attached; two special executions, certificate of purchase thereunder by Glasby, and assignment by him to plaintiffs; and sheriff’s deed to plaintiffs, for the lands in question.
    The plaintiffs proved possession of Bagaw, at the commencement of the suit.
    Defendant then read in evidence a deed from Meacham to him, dated 22d December, 1841, acknowledged the 26th of the same month, and recorded on the 20th of January following. He also introduced some testimony, tending to show that the transaction was bona fide.

      G. K cerner, for appellant.
    G. Trumbull, for appellee.
   Opinion by Mr. Justice Catón :

This was an action of ejectment, and it was agreed upon the trial, that the title to the premises in question was, on the 21st December, 1841, in one Meacham, from whom both parties claimed title.

The plaintiffs showed the levy of an attachment from the Circuit Court upon the premises in question, on the 31st of December, 1841, and a judgment, execution, sale and sheriff’s deed, all in due time; and after proving the possession, rested their case, without having shown that the sheriff, who levied the attachment, had filed a certificate thereof, with the recorder, as is required by sec. 25, chap. 57 of Revised Statutes; which is a copy of the law in force at that time.

The defendant then introduced a deed for the premises, dated on the 22d, and acknowledged on the 26th of December, 1841, and recorded on the 20th of January, 1842. He also introduced evidence, with the view of charging the attaching creditors with notice of his conveyance, before the service of the attachment. And the plaintiffs examined witnesses in order to prove that the conveyance from Meacham to Pittman was fraudulent. The jury returned a verdict of not guilty, which the plaintiffs moved to set aside; because it was against the evidence, and for misdirection of the judge. Which motion was overruled, of which they now complain, as well as of error' in the instruction.

It is unnecessary for us to enquire, whether the evidence is sufficient to charge the attaching creditors with notice of the conveyance to the defendant; for although he neglected to get his deed recorded, until after the levy of the attachment, the notice of the levy does not appear to have ever been filed with the recorder; hence the deed must necessarily take priority. Until the notice of the levy was filed with the recorder, no one was bound to take notice of it, nor could it affect the defendant’s title.

To obviate this difficulty, the plaintiffs’ counsel asked the Court to instruct the jury, in effect, that they should presume that the sheriff had performed his duty in that respect, by filing the certificate. Which instruction the Court very properly declined giving.

That was a fact to be proved, and which could not be presumed, in the absence of proof; and the statute above referred to expressly provides that, “frpm and after filing the same, [the notice,] such levy shall take effect as to creditors, and bona fide purchasers without notice, and not before.” So far as appears, before such certificate was filed, the defendant’s deed was recorded ; which secured the priority of his title, and imposed upon the plaintiffs the necessity of proving notice upon the defendant of the service of the attachment, before the attaching creditors were chargeable with notice of his deed.

The only remaining enquiry of serious moment is, whether the evidence was of such a character as made it incumbent on the jury, to find that the defendant’s deed was fraudulent. After a careful examination of the evidence, we cannot say that the verdict of the jury should be disturbed, because they have found that that conveyance was bona fide. We abstain from a review of that evidence, for the reason that the case may possibly be ■ submitted to another jury. In which event, it is desirable that the evidence should go before the jury uninfluenced by any comment of ours upon it.

Whether the Circuit Court may give the party another trial under the statute, we intimate no opinion.. That is a question which, if presented, that Court must determine for itself.

Nor do we find that the Circuit Court committed any error in giving or refusing instructions. They are voluminous, and as they present plain propositions of law, we do not think it necessary to examine them at length.

The judgment of the Circuit Court is affirmed, with costs. The record is remanded to the Court below; with leave to the plaintiffs to move for a new trial, if they shall be so advised.

Judgment affirmed, but remanded.


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    Ninian W. Edwards, appellant, vs. Elijah Hill, appellee.

      .Appeal from St. Clair.

    Hi actions for torts, the non-joinder of persons interested with the plaintiff, must he pleaded in abatement, and cannot he taken advantage of on the trial, otherwise than in mitigation of damages.

      If the defendant omits to plead the non-joindor in abatement, the plaintiff may have judgment for his aliquot share of the damage sustained.
    And the other persons in interest may, in another action, recover to the extent of the injury sustained by them.
    In an action to recover a specific penalty, given bv a statute, which does not rest in computation, the owners of the lamí must all join in the action.
    A remedy on a penal statute must be strictly pursued, and before a party is allowed to recover under it, he must bring himself clearly within its provisions.
    This was an action to recover penalties for cutting timber, brought by Edwards against Hill. Heard at April term, 1848, before Joseph Gillespie, esq., presiding by consent, in place of Kcerner, Judge, interested in the case, and a jury. Verdict and judgment for defendant, and an appeal by the plaintiff.
    G. Kcerner, for appellant.
    W. H. Underwood, for appellee.
   Opinion by Treat, C. J.:

This was an action of debt to recover penalties for cutting timber. The declaration alleged that the plaintiff was seized in fee of the land on which the trees were cut. The plea was nil debet. The evidence showed that the plaintiff had title to but six-sevenths of the land. On this state of case, the Court instructed the jury that the plaintiff could not recover. The propriety of that instruction is the only question in the case. The statute gives the owner a certain penalty for each tree» of a particular description cut on his land without his permission, and authorizes him to recover the penalty in an action of debt. R. S., 525. Under this statute it has been decided that the party claiming to recover the penalty, as owner, must aver in his declaration, and prove on the trial, that he is the» owner, in fee simple, of the land on which the trespass was committed. Wright vs. Bennett, 3 Scam., 258; Mason vs. Park, do, 532; Whiteside vs. Divers, 4 Scam., 336; Jarrot vs. Vaughn, 2 Gilman, 132; Clay vs. Boyer, 5 Gilman, 506.

It is insisted that the rules governing actions in form ex delicto, are strictly applicable to this proceeding. It seems to be well settled that, in actions for torts, the non-joinder of persons interested with the plaintiff must be pleaded in abatement, and cannot be taken advantage of on the trial, otherwise than in mitigation of damages. If tile defendant omits to plead the nonjoinder in abatement, he thereby consents to a severance of the cause of action, and the plaintiff may have judgment for his aliquot share of the damages sustained. 1 Chitty’s Pleadings, 66; Addison vs. Overend, 6 D. and East, 766 ; Wheelwright vs. De Peyster, 1 Johnston, 471; Thompson vs. Hoskins, 11 Mass., 419. And the other persons in interest may, in another action, recover to the extent of the injury sustained by them. Sedgeworth vs. Overend, 7 D. and East, 279; Baker vs. Jewell, 6 Mass., 460. If this was an ordinary action for the trespass, the plaintiff would be entitled to recover six-sevenths of the damages done to the estate, and the other tenant in common could, in a subsequent action, recover the residue. But this is a proceeding to recover a specific penalty, given by the statute, and we are not prepared to decide that the rule indicated should control it. The amount to be recovered does not rest in computation, but is fixed by the statute, and we are not aware of any principle or authority that will justify the splitting, up of a penalty, and allow it to be recovered in fragments, by the several owners of the land. And this must he done if this action can be sustained. On no principle would the other tenant in common be concluded, by a recovery in this action, and the plaintiff could not, therefore, have judgment for the whole penalty. The penalty must be regarded as indivisible. The whole must be recovered or nothing. The inevitable consequence seems to be, that the owners of the land must all join in an action to recover the penalty. A remedy on a penal statute must be strictly pursued, and before a party is allowed to recover under it, he must bring himself clearly within its provisions.

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

Judgment affirmed.


text:
    George E. Hoare, plaintiff in error, vs. Addison S. Harris, defendant in error.

      Error to Jasper.

    Tn chancery the real parties in interest should be parties to the proceeding.
    A bill to enforce the rights of infants should be filed in their names by their guardian or next friend.
    Although our statute may give to guardians the control of suits, it makes no change as to the parties to the suit.
    When a decree is entered, directing a trustee to convey to the cestui qui trust, only a special warranty should be required against his own acts.

      Bill in chancery by Harris against Hoare. Heard at October term, 1849, by Harlan, Judge, on pleadings and proofs. A decree was entered for complainant, to be relieved from which decree, Hoare sued out this writ of error. The facts of the case are sufficiently stated in the opinion.
    W. H. Underwood and Hoare, in person, for plaintiff in error.
    C. H. Constable, for defendant in error.
   Opinion by Mr. Justice Catón :

Although we are satisfied that this record shows a meritorious case in favor of the wards of the complainant, yet several of the errors are well assigned. The first objection, which goes to the foundation of the whole proceeding, is a want of proper parties, and this objection is well taken. The bill is filed by Harris as guardian, to compel the conveyance of a town lot to his wards: which it is shown is held by the defendant in trust for them; and the decree is, that the conveyance shall be made to the infants. Authorities are hardly required to show that, by the well established rules of chancery law, the bill should have been filed in the name of the wards, by their guardian or next friend. But the counsel for the defendant in error argues, that this rule has been changed by sec. 4, chap. 47, Rev. Stat.; which is as follows : “ Guardians, by virtue of their office as such, shall be allowed in all cases to prosecute and defend for their wards.” While this section may give the control of the proceeding to the guardian, it makes no change as to the parties to the suit. As formerly, the proceeding must still be conducted in the names of the parties really interested, as much as if they were adults. Only by making them parties, could they be bound by the adjudication. Had this bill been dismissed upon the merits, it could not be interposed as a bar to another suit commenced in the name of the infants, for the same purpose. This case presents the anomaly of a bill filed by one, and relief granted to others. This cannot be tolerated, although the complainant professes to act on behalf of the others. Bradly vs. Amidon, 10 Paige, 239. Harris files the bill, and describes himself as “guardian of and for” the wards. This is but a description of the person, and leaves him individually liable for the costs. Harris being the sole complainant, and the hill not showing him entitled to relief, must necessarily he dismissed.

It may not he improper, however, to notice briefly some of the other errors assigned. The decree should have been interlocutory and not final. Had the bill been filed by the proper parties, it would have been right to determine that the legal title was held by the defendant, in trust for the infants, and then a reference should have been made to a master, to take and state an account of the rents and profits received by the defendant, as well as of the necessary disbursements made by him, for taxes and otherwise, including the amount of redemption paid by him, with interest. And, also, to ascertain and report whether it was necessary to sell the interest of the infants ; and, upon the coming in and confirmation of the report, a final decree could have been made. Or it would have been proper for the Court to have heard the proofs, and ascertained all these facts itself, had it thought proper; preserving the proofs in the decree as laid down in the case of McClay vs. Norris, 4 Gilman, 370.

The decree improperly requires the defendant to execute a general warranty deed. Only a special warranty should have been required against his own acts. As one of the objects of the bill was to subject the interest of the infants to sale, to raise the necessary funds to pay what was due to the defendant, it was unnecessary that the money should have been brought into Court, as is ordinarily required. Smith et al. vs. Sackett et al., 5 Gilman, 534.

The decree of the Circuit Court must be reversed, and the bill dismissed at the complainant’s costs, without prejudice.

Decree reversed.


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    O. M. Adams, plaintiff in error, vs. William R. Payson, defendant in error.

      Error to Madison.

    Where a master included a fee for §30 00 to the complainant’s solicitor, upon a reforence to him to compute the amount due, upon a hill taken fro confesso, where the hill did not claim such fee, it was decided to he error.

      This was a hill in chancery, in the Madison county Circuit Court, to foreclose a mortgage filed by Payson against Adams, which came on to be heard before Kcerner, Judge, at the August term, A. D. 1848, and a decree of foreclosure was allowed. The facts of the case, and the errors complained of, will be sufficiently stated in the opinion.
    L. Davis and N. Edwards, for plaintiff in error.
    L. F. Casey, for defendant in error.
   Opinion by Mr. Justice Catón :

In this case, we have again to reiterate a principle so familiar that authority in its support would be superfluous.

This bill is to foreclose a mortgage, given to secure, among other things, the payment of a promissory note; the non-payment of which is alone complained of. The bill was taken for confessed, and it was referred to a master, to compute the amount due upon the note; and to assess and tax the fee of the complainant’s solicitor, according to an agreement filed in the cause, by which the defendant bound himself to pay such fee, in case the complainant had to foreclose the mortgage.

This agreement was executed some time after the mortgage, and before the commencement of this suit, and is not referred to in or made a part of the bill; nor was it ever placed upon the files of the Court, till more than two months after the bill was filed.

The master reported the amount due upon th’e note at í¿ 464 47; and that he had taxed the fee of the complainant’s solicitor at thirty dollars. For both of which sums the decree was rendered.

That portion of the decree, alone, is assigned for error, which directs the defendant to pay the solicitor’s fee of thirty dollars. That part of the decree must undoubtedly be reversed. No claim for that fee is set up in the bill, and the defendant had no opportunity of defending that claim. The Court could not give the complainant more than he asked, and showed, by his bill, that he was entitled to.

That portion of the plea complained of must be reversed, and the residue stand affirmed. The costs to be paid by the defendant in error.

Decree, modified.