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i
R E P O K T S
, OT
CASES DETEKMINETi
THE SUPREME COURT
STATE OF ILLINOIS,
FKOM
NOVEMBER TERM, 1854, TO JUNE TERM, 1855.
BOTH INCLUSIVE.
VOL. 6. BY E. P^EOK.
COUNSELOR AT LAW.
VOLUME XVI.
WITH NOTES BV
HON. W . H . UNDERWOOD,
ST. LOUIS : PUBLISHED BY W. J. G^ILB^^RT.
E. B, MYERS, CHICAGO. 1870.
Entered accordiug to Act of Congress in the year 1870, by
W. J, aiLBERT,
la the Clerk's Office of the Disti-ict Court of the United States for the Eastern District of Missouri.
F^coNOMicAL Printing Co.
3rd. & Walnut Sts.,
St. Louis, Mo.
, JUDQES OF THE SUPREME COURT
WHOSE OPINIONS ARE PUBLISHED IN THIS VOLUME.
CmEF JUSTICES.
SAMUEL H . T R E A T , WALTER B.SCATES.
ASSOCIATE JUSTICES.
JOHN D. CAT ON, ONIAS 0. SKINNER.
* Judge Treat having beeu appointed to tlie beucli of the Circuit and District Courts of the United States for the Southern District of Illinois. Judge Skinner was elected to fill the vacancy occasioned hy tlie resignation of Judge Treat.
Note. — The dissenting opinion of Chief Justice Scates in the case of Laflin v. Herrington, will be foxmd at the conclusion of the volnme,
TABLE OF CASES
(A)
PAGE .
Adams et al. t. Kiug et al 109
Aldrich et al. v. Dunham et al 403
(B)
Bowles V. McAllen 00
Byers t'. President and trustees of
Town of Omey 35
Blankenship ■». Cutrell 02
Baker v. Piitcliett GO
Beers v. William-s. 69
Brockman et al. v. McDonald, Ad- ministrator 112
Beaslcy v. Meigs 339
Boyd et al. v. McAdams 146
Bennett v. The People 160
Bryant v. Sears et al 288
Ball et al. v. Shattuck 299
Board of Supervisors of DeKalb v.
Beveridge 312
Ballingall v. Bradley, Administrator 373
Brown et al. v. Niles 385
Bissel ^t al. v. Price 409
Beesman t. City of Peoria 484
Beekman, Trustee, v. Hamilton . . . 487 Bourland v. County of Peoria 538
(C)
Campbell v. The People 17
Crews V. Blakeley 21
Cowen V. Underwood et al 22
Clark V. "Willis 61
Coffey V. Coffey et al 141
Chatterton v. Saul 149
Chicago and Mississippi Rail Road
Company v. Patchin 198
Cochran ?;. Ammon and Wife 316
Clinefelter c. Ayers 329
Charlesworth v. Williams 338
Crosby v. Gipps 352
Cooper et al. v. 3IcClun et al 435
CofHng et al. v, Taylor 457
Cook V. WTiitney 480
Chicago and Rock Island Rail Road
Company v. Warren et al 502
Chicago and Rock Island Rail Road
'^.Company t-. Ward 522
Crook et a), v. People 534
CD)
Dyke v. McYey 41
Duulap V. Buckingham 109
Dixon V. Haley 145
Dunn V. Moore et al 151
Dyer v. Talcott 300
Dunning et al. v. Matthews 308
Davenport r. Young et ux 548
(E)
Edmunds v. Myers et al 207
Edmunds t. Hildi-eth et al 214
Eddy et al. v. Brady 30G
Ex parte Smith 347
Ex parte Salisbuiy 860
(F)
Fliun v. Barlow 39
Frazier v. Miller 48
fishback v. Brown 74
Frame, Administrator, v. Frame et
al 155
Freeland u. The People 380
Fisher v. The State 394
Fisher v. Stevens 397
Farrell v, Tho People. ,...., 506
Vi
TABLE OF CASES,
(G)
PAGE.
Greenup v. Venioi' 26
Grimes v . Williams 47
Gerber v. Grable 217
Gilman ct al. i: Hamilton et al 225
Gowkoski V. Day 259
Gilson V. Powers 355
Guptail et al. v. Teft 365
Goflf V. O' Conner 421
Galena and Chicago Union Rail-
Eoad r. Fay 559
Jacen r. The People 234
(H)
Harmau i\ Haruiau 85
Harvey, Guardian, etc., of Heirs of
Sweet 127
Holland r. Kibbe et al 133
Henderson v. Farrelly et al 137
Hough v. Baldwin 293
Higgs V. French 343
Hulme et al. v. Renwick. 371
Hoes V. Van Alstjne 384
Hurd i\ Denny 492
Higgins ?'. Lee 495
(I) Iglehart" r. Jeniegan TilS
(J)
Joupfs et al. V. Jones 117
Jamt\-on r. People ex i-el. Ncttletou 258
King i\ Hamilton, Administrator. . . 190 Keith V. Buckcr et al :]89
(L)
Love et al. v. Moynehan 277
Lapointe v. Stewart 291
Laflin v. Herrington et al 301
La Salle County Manufacturing Co.
*'. The City of Ottowa 418
Low et al. r. NoUe 475
(M)
iMcNair v . Schv^'artz 24
McDonald v. Brown 32
Motsinger , Guardian, etc. , v. Wolf. 71
Same v. Coleman ■. . 71
McCartney v. Hunt et al 76
Mitchell V. Mayo, Administrator . S3
MolTet v. Brown 91
Matter of Harvey, heirs of Sweet. , 127
PAGE.
McConnell ■». Beathard 132
Myers v. Winn 135
McCormick v. Gray 138
McGhee et al. t . Wright 555
Miller v. Lumsden et al 161
Morgan et n\. v. Camp 175
McCormick v. Elston et al 204
Murray v. Murphy 275
MiUer«. Miller 196
Moir V. Hopkins 313
Miller v . Metzger 390
Morton r . Tenny 494
(W)
Norton v. Gordon 38
Nash V. Nash 79
Nichols, Administrator, etal. ®. ..
Thornton 113
Nye V . Raymond 1.53
Norton et al . « . Lexington Insurance
Company 235
Nolan, Administrator, v. Jackson 272
(O) Oaks r. Oaks, Administratrix 106
(P)
Parker, use, etc., r. Brooks 64
Pittsfield and Florence Plank Road
Company v. Harrison 81
Prickett v. Ritter 96
Painter v. Baker 103
Phinney v. Baldwin 108
People r. Blackford et ul 166
Same, use of Smith, v. Summers. . . 173
Same v. Green 234
Peoria and Oquawka Rail Road
Company v. Neill 269
Puschell •;. Hoover et al 340
Pummer et al. v. The People 358
Plarks '('. Brown. 454
(R)
Randall r. Songer, Administrator. 27
Ryan et al. v. Barger 28
Roach i:. Perry, Executor 37
Ross et al. r. Watt 99
Reed et al. v. Kemp 444
Rock Island Railroad Company r.
Warren et al . 502
Same r. Ward....- 522
TABLE OF CASES,
vu
(S)
PAGE .
Smitli V. Douglass , . , , 34
Sanger et al. v. Kinkade 45
Steele v. Hobbs 59
Smith V. Webb 105
Stribling v. Ross 122
Street et al. v. McConnel 125
Smitli t). Curry et al 147
Stone et al v. "Wood, Administra- tor, etc 177
Sloan t). Petrie 263
Sherman et al, v. Dutch 283
Supervisors v. Beveridge 312
Stillmau et al, v. Young et al .. r . 318
Smith, ex parte 347
Salisbury, ex parte 350
Spencer t;, McMasters et ux 405
StouflFer v. Machen 553
(T)
Turney v. Organ 43
Thomas, Trustee, etc. v. Olneyetal 53
PAGE.
Taylor v . Cottrell et al 93
Thomas v. Trustees of Schools 163
Tuttle et al, v. Garrett 354
Thompson v. Strain 369
Tiernan y. Hinman 400
Turney v. Penn et al 485
(V)
Vancil v . The People . . Van Blaricum 'v. Same.
(W)
120 364
Warren v. The Iscarian 'Commu- nity , 114
Wood V. The People 171
Walker v. Goodrich 341
Wheeler v. Chubbuck 361
WaU V . Goodenough 415
Woodward -v . Blanchard 424
Walker v . Chovin et al 489
Wade V. Halligan 507
DEO-ISIOISrS
OF
THE SUPREME COURT
OF THE
STATE OF ILLINOIS,
NOVEMBER TERM, 1854, AT MOUN'T VERNON.
DECATon Cajipbell, Plaintiff in Error, v. The People, Defend- ants in Error.
ERROR TO MASSAC.
On a trial for murder, where it appeared that the deceased sought the accused at his own house with the design to arrest or assault hita, having a hatchet in his hand, it is competent for the accused to show that the deceased liad, on the day of his death, and at other times shortly previous, made threats against him.
An instruction which may be xmderstood by the jury as denying to the accused on trial for murder, the* right to defend himself, unless his danger was not only apparently imminent, but was real and positive, is erroneous.
Actual and positive danger is not indispensable to justify self-delense.
If one is pursued or assaulted in such a way as to induce in him a reasonable and well grounded belief that he is actually in danger of losing his life, or receiving- great bodily harm, under the influence of such appreliension he will bejusti- fied in detending himself whether the danger was real or only apparent.
Men, when threatened vnth danger, must determine from appearanae s and the actual state of things surrounding them, as to the necessity oi resorting to self-defense ; and il they act from reasonable and honest convictions, they will not be held responsible criminally, for a mistake in the extent of the actual danger, where other judicious men would have been alike mistaken.
Although it may be positively proved that one of two or more persons committed a crime, but if it is uncertain v\iiieh is the guilty party, aU must be acquitttd..
On a trial for murder the law makes no distinction in its principles as to the color of the accused.
This cause was tried before Parpjsh, Judge, at June term, 1854, of Massac Circuit Court.
J. Jack, for Plaintiff in Error.
J. A. Logan, District Attorney, for the People.
2
18 MOUNT VERNON,
Campbell v. The People.
Caton, J. The plaintiff in error, who is a negro, was in- dicted for the murder of Goodwin Parker. The evidence in the case tends very strongly to show that the deceased made an assault upon the prisoner, and that the homicide was com- mitted in necessary self-defense. It appears that the deceased and three others went to seek the prisoner at his father's house, in the night time. The deceased went to the door of the house, leaving his companions thirty or forty yards back, to whom he was to give warning if Campbell was in the house. Shortly after the deceased went to the door, he called to the others to come on, and informed them that the negro was there. They rushed up, when the deceased and the prisoner were seen some distance from the house, engaged together, and there the de- ceased was stabbed, and died in a few minutes. When the deceased went to the house, he had a hatchet in his hands, which was found near the spot where he was killed ; and after the negro was committed to jail, a wound was observed upon his head which penetrated to the skull, and which appeared to have been made with a hatchet, an axe or a hammer. There was no pretense that there was any sort of justification or legal cause for arresting or assaulting the prisoner. Upon the trial, the defense offered to prove that on that day, and at other times shortly before his death, the deceased had made threats against the prisoner. This evidence the court ruled out, and an except- tion was taken. In this the court unquestionably erred, although they may never have come to the knowledge of the defendant till after the homicide was committed. If the deceased had made threats against the defendant, it would be a reasonable inference that he sought him for the purpose of executing those threats and thus they would serve to characterize his conduct towards the prisoner at the time of their meeting, and of the affray. If he had threatened to kill, maim, or dangerously beat the defendant, it would be a fair inference, especially so long as the evidence shows that he had a hatchet in his hands, that he had attempted to accomplish his declared purpose, and if so, then the prisoner was justified in defending himself, even to the taking of the life of his assailant, if necessary. While the threats, of themselves, could not have justified the prisoner in assailing and killing the deceased, they might have been of the utmost importance in connection with the other testimony, in making out a case of necessary self-defence. The evidence offered was proper, and should have been admitted.
The second instruction given for the prosecution, and which was excepted to, was as follows : "If the jury believe, from the evidence, that the defendant was pursued by the deceased, Goodwin Parker, and turned upon him and sIcav him with a
NOYEIVIBER TERM, 1854. 19
Campbell v. The People.
knife, or other instrument capable of producing a like death, when it was not necessary for self-preservation, or in necessary self-defence, or to prevent his receiving great bodily harm, although they believe there was no previous malice on the part of the defendant towards the deceased, yet they are bound to find the defendant guilty of manslaughter, and fix his term of confinement in the penitentiary of the State at not more than eight years." This instruction, if not absolutely wrong, was at least liable to misconstruction, and to be understood by the jury as depriving the defendant of the right of self-defence, unless hiS' danger was not only apparently imminent, but was real and positive. If so understood, the instruction was wrong. If tha defendant was pursued or assaulted by the deceased in such a way as to induce in him a reasonable and well-grounded belief that he was actually in danger of losing his life, or suffering great bodily harm, when acting under the influence of such reasonable apprehension, he was justified in defending himself, whether the danger Avas real or only apparent. Actual and positive danger is not indispensable to justify self-defense. If one is assaulted with a sword in such a Wcxy as to indicate an intent to take his life, and with an apparent ability to accom- plish such intent, he is not bound to stop and inquire whether the sword is but a lath or whether the assault is but a jest, before he repels it with the necessary force to protect himself against the threatened harm. Or if one is assaulted with a pistol in such a way as to manifestly show a design to slay him, he may be justified in killing his assailant, although it should turn out the pistol was not loaded, and the only design was to frighten him. Men, when threatened with danger, are obliged to judge from appearances, and determine by the actual state of things, from the circumstances surrounding them, at least as much as if placed in other and less exciting positions ; and it would be monstrous to say, that if they act from real and honest conviction, induced by reasonable evidence, they shall be held responsible criminally for a mistake in the extent of the actual danger, where other reasonable and judicious men would have been alike mistaken. A contrary rule would make the law of self-defense a snare and a delusion. It would become but a mockery of the sacred right of self-preservation, (a)
The eleventh instruction asked by the prisoner should have been given. It is this : " If it is uncertain, from the evidence, in the minds of the jury, which one, out of two or more persons, inflicted the stab, that would operate to acquit the prisoner unless there is proof that the prisoner aided or abetted the person ascertained to have killed him. " While this instruction is inartificially drawn, and is liable to verbal criticism, yet it
(a) Hopkiason v. People, 18 ni. R. 264; Schnier v. do., 33 Id. 28; Mahev v. People » 24 Id. 241; Reins v. People, 30 lU. R. 256.
20 MOUNT VERNON,
Campbell v. The People.
contains an important principle of law, of the benefit of which the prisoner should not have been deprived. There was evi- dence tending to show that the mother and sister of the prisoner were at or very near the place of the affray at the time the wound was inflicted, and his counsel had the right to insist before the jury, that one of them struck the blow without his knowledge or procurement, while he was simply trying to flee from his pursuer ; and had the jury so far concurred in that view of the case as to entertain a reasonable doubt whether one of the others did not strike the blow without the procurement of the prisoner, he was entitled to an acquittal. Although it may be positively proved that one of two or more persons committed a crime, yet if it is uncertain which is the guilty party, all must be acquitted. No one can be convicted till it is established that he is the party who committed the offense.
The thirteenth instruction asked for the prisoner, was • this : "It is the duty of the jury to consider the prisoner's case as if he were a white man, for the law is the same, there being no distinction in its principles in respect of color." This, too, was refused by the sourt and an exception taken. It was not pre- tended on the argument, that the law of this case, by which the prisoner's guilt or innocence was to be established, was not precisely the same as if he were a white man, and it was even insisted on the argument, that the proposition is so plain and so universally understood and recognized, that it would have been an insult to the understanding of the jury for the court to have instructed them on that point. The proposition is undoubtedly exceedingly plain and altogether undeniable, and I trust is uni- versally understood and recognized, but it was still the right of the prisoner to have the law,, plain as it was, declared to the jury by the court. But again it was objected, that the instruc- tion asserts the absolute equality, in all respects, under our law, of the black man with the white. Even if the wording of the instruction was thus broad, it could only be understood as applying to the case upon trial, where the equality is admitted. With the rights of the defendant in any other regard, the jury could have nothing to do. The only object of the instruction could have been to enligliten them as to the law of that case ; and whether their belief of the relative rights of the defendant in other respects were right or wrong, was a matter of no sort of moment to any party. But by reference to the purport of the instruction, it will be seen that it was especially asked in reference to the case on trial, for the jury was asked to be directed to consider the prisoner's case as if he were a white man, for the reason that our law makes no distinction in respect of color, which, of course, can only be understood in respect
NOVEMBER TERM, 1854. 21
Crews V. Blealdey.
to such a case. Any other construction of that instruction is altogether too refined for practical justice. The instruction should have been given.
The judgment must be reversed and the case remanded.
Judgment reversed.
Andrew Crews, Appellant, v. Isabella Bleakley, Appellee.
APPEAL FEOM WAYNE. Evidence tending to prove payment may be given under the general issue.
This was an action commenced against Crews, before a justice of the peace, in which Mrs. Bleakley received a judgment for $50.95. Crews appealed to the Circuit Court, when judgment was renewed against him for $45.33, and costs. Crews then brought the case to this court.
The cause was tried before Baugh, Judge, and a jury, at September term, 1854, of the Wayne Circuit Court.
S. Beecher, for Appellant.
N. L. Freeman, for Appellee.
Caton, J. This action was brought by the plaintiff below for the work and labor of his son. The evidence shows that the son of the plaintiff lived with and served the defendant about two years ; that he was sent to school by the defendant about six months during the time ; that he was sick several times, and nursed by the defendant when unwell ; that he was a member of the defendant's family, and treated by him like one of his own children ; and that he was a good boy and could earn from five to eight dollars per month during the '^cropping season." When the boy went to live with the defendant, he told the plaintiff he would give her what the boy was worth. No terms were agreed upon ; but the plaintiff remarked at the time that she and the defendant would fix it afterwards. Subsequently, the defendant proposed that if the plaintiff wished to hire the boy out by the month, to give her five dollars per month during the '■'■cropping season,'"^ but the plaintiff replied that she wanted the boy to go back to the defendant and live as he had done. It is unnecessary now to inquire whether this evidence shows that it was the intention of the parties that wages were to be
22 MOUNT YERNON,
Cowen V. Underwood et al.
paid for the services of the boy, or whether it was their inten- tion that he should be adopted into and form a part of the defendant's family, to be provided for, taken care of and schooled by, him, as a compensation for his services ; for, in either event, the com-t unquestionably should have permitted the defendant to have proved, as he offered to do, that the clothes, boarding and schooling of the boy were worth as much as his services, what was the condition of the boy's clothing at the time he went to live with the defendant, and also that the defendant fm'nished him clothes while he was living with him. This evidence would legitimately have tended to establish payment for the services rendered, in the event it should be found that the plaintiff was entitled to wages for those services. Evidence tending to prove payment may be given under the general issue ; besides, the action was commenced before a justice of the peace, where no special pleas are required.
The judgment of the circuit court must be reversed and the cause remanded.
Judg7nent reversed.
Sampson Cowen, Plaintiff in Ei-ror, v. Joseph B. Underwood et al. , Defendants in Error.
EEKOli TO MARION.
It is the duty of the sheriff to offer for sale real estate which he has levied upon, in separate parcels. He should endeavor to satisfy executions by the sale of as small an amount of property as possible.
This cause was heard and decided upon bill and answer at September term, 1853, of Marion Circuit Court, by Marshall, Judge.
N. NiLES, for Plaintiff in Error.
W. H. Underwood, for Defendant in Error.
Caton, J. This bill was filed to set aside a sale made by the sheriff under an execution issued upon a judgment against the complainant. The execution was levied upon the north-west quarter and the north half of the south-west quarter of a -Section of land, which were advertised, and both lots were put up by the sheriff together, and bid off by the defendant at one
NOVEMBER TERM, 1854. 23
Cowen V. Underwood et al.
bid for $134.03, which was the amount of the judgment, inter- est and costs. The purchaser was the attorney who obtained the judgment upon which the execution issued. The bill alleges that the smallest of the lots was of many times the value of the amount of the bid, but the case does not clearly show that either one of the lots, had it been offered separately, would have sold for enough to have satisfied the execution, and this court decided in the case of Greenup v. Stoker, 12 111. 24, that the mere fact that the property was sold at a sacrifice, was not of itself sufficient to authorize the court to set aside the sale. In that case the sacrifice was very great, and I may here state that I have never felt entirely satisfied with that decision, and I am not now sure that the decision of the circuit court should not have been sustained. Be that as it may, this case goes much further than that and we cannot consent to extend it further. There, no positive rule of the statute had been violated. A single quarter section of land had been levied upon, advertised and sold at once, and as one tract, and there was not even an averment in the case to show that it could have been advantageously divided and sold in separate parcels. Here, two distinct tracts have been levied upon and ' sold to- gether, one of which is as large as the one sold in the other case. It is true the tracts lie adjoining each other, but they are still distinct tracts, and designated as such in the levy, and amounting together to two hundred and forty acres of land.
The tenth section of chapter fifty-seven, Revised Statutes, provides as follows: " Whenever any property real or personal shall be taken in execution, if such property be susceptible of division, it shall be sold in such quantities as may be necessary to satisfy such execution and costs." While it may not be easy at all times to determine when the positive requirements of this statute enjoin it upon the sheriff to offer real estate which he has levied upon, in separate parcels, it may be safely affirmed, that where several distinct tracts are levied upon, although they may adjoin each other, it is the duty of the officer, at least in the first instance, to offer them separately. The necessity for this has been already sufficiently discussed in the case of Bai/ v. Graham, 4 Gilm. 389. Nor do I deem, it necessary to again review the decisions of other courts on this subject, many of which were examined in that case : it is sufficient now to remark, that it is the policy of the law and the duty of its officers, to endeavor to satisfy executions by the sale of as small an amount of the defendant's property as possible, and for this purpose it should be offered in separate parcels or subdivisions as small as may be without injuring or lessening the value of the whole. Undoubtedly much of this
24 MOUNT YERNON,
McNair v. Schwartz.
must be left to the sound judgment of the officer making the sale, but in no event should several large tracts of land, as in this case, be offered together in a mass, at least in the first instance. If when thus offered separately, no bids could be obtained, there may be instances where the officer would be justified in offering different parcels together, although ordina- rily it would be more proper to adjourn the sale. («) In the event of such a sale en rnasse^ each case must be determined by its own circumstances. Such was the case of Day v. Graham, and here the sale was set aside. Here the attorney was the pur- chaser, and is chargeable with notice of all irregularities.
The decree of the circuit court must be reversed, and the suit remanded, with directions to that court to enter a decree setting aside the sale, upon the complainant paying, within thirty days, to the purchaser, or depositing with the clerk for bim, the amount of his bid, with ten per cent, interest from the day of sale to the day of payment. He had a whole year within which he might have redeemed from the sale upon the same terms which he now gets, and had he availed himself of that right, there would have been no necessity for filing this bill and hence he should pay the costs which he has thus him- self occasioned. He is entitled to his costs in this court ; let the decree be reversed and the suit remanded. (6)
Decree reversed.
(a) Phelps vs. Conover, 25 lU. R. 312; Meeker vs. Evans, 25 Id. 332. (&) See notes to Day vs. Graham, 1 Gil. K. 452.
David McNair, Plaintiff in Error, v. Jacob Schwartz, Defend- ant in Error.
ERROR TO JACKSON.
Assumpsit for use aud occupation is founded upon a contract creating a tenancy, and will only lie where the relation.of landlord and tenant exists.
If one acquires the possession of land vinder a contract of sale, and refuses to per- form the contract, the vendor cannot maintain assumpsit lor _use and occu- pation, but may in ejectment recover mesne profits.
The holding in such case is under a purchase, and not under a demise.
This cause was heard before Denning, Judge, and ajury, at September terra, 1853, of Jackson Circuit Court. Verdict and judgment for the plaintiff in the Circuit Court. The defendant sued out this writ of error.
W. J. Allen and C. G. Simons, for Plaintiff in Error.
J. Dougherty and J. Logan, for Defendant in Error.
NOVEMBER TERM, 1854. 25
McNair v. Schwartz.
. Treat, C. J. This was an action of assumpsit, brought by Schwartz against McNair. The declaration was for the use and occupation of a farm. It appeared in evidence, that in June, 1845, McNair purchased the farm of SchAvartz, and gave his promissory notes for the price, the last falling due in November, 1848, and received from Schwartz a bond for the conveyance of the farm on the payment of the notes. McNair went into pos- session under the contract, and continued in possession, cultivat- ing and improving the farm, until February, 1852, he also made some payments on the notes. The jury returned a verdict in favor of Schwartz, and the court refused to grant a new trial.
The action of assumpsit for use and occupation is founded upon a contract creating a tenancy. It will only lie where the relation of landlord and tenant exists between the parties ; this is an established rule of law ; see Dudding v. Hill, 15 111. 61, and the cases there cited, (a) If a party acquires the pos- session of land under a contract of sale, and afterwards refuses to perform the contract, the vendor cannot maintain assumpsit against him for use and occupation, but must resort to an action of ejectment to recover mesne profits. The relation between the parties is that of vendor and vendee, and not that of land- lord and tenant. The holding is under a purchase and not under a demise : Synith v. Steivart, 6 John. 46 ; Bancroft v. War- dell, 13 ibid. 489 ; P'anderheuvel v. Storrs, 3 Conn. 203. ; Hough V. Birge, 11 Vt. 190. The latter clause of Sec. 1, Chap. 60, Rev. Stat., does not change the common law in this respect. It only applies to the case of a demise, where there is no special agreement as to rent. (6)
In this case it is perfectly clear that the action cannot be maintained. The facts furi^ish no evidence of a tenancy. Mc- Nair acquired and retained the possession of the farm as a pur- chaser, and not as a tenant. There was no demise, express or implied. It was the naked case of a sale, and a taking of pos- session by the vendee. The remedy of Schwartz is by an action of ejectment, to recover the possession and mesne profits ; or by a suit upon the notes, to recover the purchase money and interest. The court erred in not awarding a new trial.
The judgment is reversed and the cause remanded.
Judgment reversed.
(a) Hadley vs. Morrison, 39 ni. E. 398; Kingys. Mason, 43 Id. 223.
ib) Butseeactof 1801, p. 177, Sec 2. Hadley vs. Morrison, 39m. R. 399audpost 145.
26 MOUNT VERNON,
Greenup v. Vernor.
Darius Greenup, Appellant, v. Zenas H. Vernor, Appellee. APPEAL FROM WASHINGTON.
A tenancy cannot be implied from the fact that a vendor remains in possession of the premises after a sale, so as to authorize an action for use and occupation..
Tpns cause was heard before Underwood, Judge, without the intervention of ajurj, at October term, 1854, of Washington Circuit Court.
P. E. Hosmer, for Appellant. A. Watts, for Appellee.
Treat, C. J. Vernor sued Greenup before a justice of the peace. He claimed to recover $40.83, for the use and occupa- tion of a town lot from the 9th of July, 1853, to the 14th of March, 1854. When the summons was served, Greenup paid to the constable the costs that had accrued in the case, and the amount demanded for the use of the lot fi'om the 1st to the 14th of March, 1854. The cause was heard by the justice, and an appeal taken to the circuit court. It was submitted to the court on this state of facts : Vernor purchased the lot in ques- tion and received a conveyance thereof , on the 9th of July, 1853, at a commissioners' sale, made under a decree in a chancery- suit, to which Greenup was a party. Greenup was then in pos- session of the lot, and remained in possession until the 14th of March, 1854. The lot, prior to the sale, belonged to him and the heirs of Lamb. It was proclaimed by the commissioner, at the time of the sale, the purchaser would not be entitled to the possession of the lot till the 1st of March, 1854; but the decree contained no such provision, and there was no such reservation in the commissioners' deed. The use of the lot was worth $2.50 per month. The court gave judgment in favor of Vernor, for $18.
Sustaining the objection taken by Vernor to a portion of the evidence, and excluding from the case all that transpired at the sale, as to the right of the purchaser to the possession of the lot, it is still very clear that he is not entitled to recover in this form of action. The cases of Dudding v. Hill, 15 El. 61 ^ and McA'a/r V. Schwartz, ante. p. 24, are conclusive against his right to maintain this suit. The relation of landlord and tenant did not subsist between the parties. There was no contract be- tween them, express or implied, to create that relation. If Greenup could be considered as the vendor of the lot, the law
NOVEMBER TERM, 1854. 27
Randall v. Songer.
of the case would be the same. There was no agreement by which he was to hold under Vernor. There is nothing in the mere circumstance of a vendor remaining in possession of prem- ises after a sale, from which a tenancy can be implied, so as to en- able the vendee to maintain an action for use and ocupation. (a): The remedy of the vendee in such case, is by an action for not delivering possession, or by ejectment : Teivy. Jones, 13 Leeson and Welsby, 12. The payment by Greenup to the constable was not a recognition of the right of Vernor to compensation for the use of the lot, prior to the 1st of March, 1854. It was, at most, only an admission that he held as tenant from that day. The judgment is reversed.
Judgtnent reversed.
(a) See notes on page 25.
John R. Randall, Plaintiff in Error, v. Jacob Songer, Admin- istrator, &c. , Defendant in Error.
EEROR TO CLAY.
It is not enough for a decree to recite that tlie defendant lias been duly serred, but the summons or advertisement should appear in the record.
This cause was heard before Harlan, Judge, at March term, 1851, of the Clay Circuit Court.
R. S. Nelson, for Plaintiff in Error.
Beecher and Houts, for Defendant in Error.
Treat, C. J. This was a bill in chancery to foreclose a mortgage. A summons was returned not served. An affidavit of the non-residence of the mortgagor appears in the record; and the decree of foreclosure states, that " it appears to the satisfaction of the court, that due notice has been given by pub- lication, of the pendency of this suit." There is nothing else in the record to show that the defendant was before the court. This is not sufficient to support the decree. In order to sustain a decree by default, it should affirmatively appear that the defendant has been regularly brought into court. A complain- ant is not entitled to a decree joro confesso, until the defendant has been served with process, or has been regularly notified of the pendency of the suit. The latter must have actual or con- structive notice of the proceeding against him, before his default
28 MOUNT VERNON,
Ryan et al. v. Barger.
can be properly entered. The record fails to show any such notice in this case. The statute prescribes the mode in which a non-1 esident defendant is to be brought into court. It re- quires an advertisement to be published in a newspaper for four successive weeks, " containing notice of the pendency of such suit, the names of the parties thereto, the title of the suit, and the time and place of the return of the summons in the case." This advertisement is- the act of the clerk, and it performs the same office as process. It is as much a part of the record of the case, as is the summons issued to the sheriff : Vairhi v. Ed- monson, 5 Gilm. 270. It is not enough for a decree to recite that the defendant ha been duly served with process, or that he has been regularly nr tified of the pendency of the suit ; but the summons or advertisement should appear in the record, so that this court may determine whether the statute has been complied with, (a)
The decree will be reversed and the cause remanded.
Decree reversed.
(a) Bat see RedcUckvs. State Bank, 27 ni. R. 148; MUlervs. Handy, 40 Id. 449.
Ebenezer Z. Ryan et a/., Appellants, v. Joseph B. Bargee, who sues for the use of Charlotte Smith, Administratrix, &c.. Appellee.
APPEAL FEOM GALLATES".
.A separate demand cannot be set off against a joint demand, nor a joint
debt against a separate debt. Demands are not the subject matter of set-off, unless tbey are mutual and between
all the parties to the action. A party cannot avail himself of a matter as a set-off, unless it is a subsisting
cause of action in his favor.
This cause was heard before Marshall, Judge, at July term, 1854, of the Gallatin Circuit Court.
W. Thomas, for Appellants.
J. Olney, for Appellee.
Treat, C. J. This was an action of debt, brought in the name of Barger, to the use of Charlotte Smith, Administratrix of William Smith, against Ryan and Thomas. The declaration was upon a bond, dated the 19th of November, 1851, executed by Ryan and Thomas to Barger, sheriff of Gallatin county,
NOVEMBER TERM, 1854. 29
Ryan et al. v. Barger,
i-eciting that Ryan had sued out a writ o£ replevin against William Smith, to recover certain personal property, and con- ditioned to make return of the same, if return thereof should be awarded, The declaration averred that the action of replevin was determined against Ryan, and then a return of the property was awarded.
The defendants pleaded non est factum, and 7iul tlel record, on which issues of facts were formed. Ryan filed a plea alleg- ing, in substance, that in October, 1847, the Bank of Illinois obtained a judgment against William Smith and Henry Eddy for $79.53 ; that in June, 1849, the same Bank obtained a judgment against William Smith for $70 ; that the judgments remained unsatisfied and in full force, and legally belonged to defendant Ryan, as surviving assignee of the Bank of Illinois, by virtue of an assignment made in conformity to the provisions of the statute ; and that he would set off so much of the amount due on the judgments, as would equal the damages sustained by the breach of the condition of the bond. The court sustained a demurrer to this plea.
The defendants then filed a notice in substance as follows : that in October, 1847, the Bank of Illinois recovered a judgment against William Smith and Henry Eddy for $79.53, and that Eddy departed this life before the cause of action accrued in this case ; that under the provisions of the statute and by force of a deed of assignment by the Bank, the right to the judgment was vested in the defendant Ryan ; that Ryan, claiming to be the owner of the property described in the replevin bond, by virtue of a purchase at a sale on an execution issued upon the judgment, replevied the same out of the possession of Smith, and executed the bond, with defendant Thomas as security, conditioned for a return of the property ; that the judgment remained in full force and unsatisfied, except by the sale of the property mentioned in the bond, and which sale was repudiated by Smith ; and that defendants Avould upon the trial insist on the right of Ryan to a credit for the value of the property in controversy in the replevin suit. On the