Page images

I shall presently have to consider the authority the subject of the action, had been given by Wilof Regina v. Bennett, and the applicatian of the liam Perkins to the plaintiff, Sarah Walker, and principle that fraud vitiates consent," to such a recited “that they had agreed to live together." case as that now before us. It seems to me, how Lord Mansfield was peremptory and concise: “ It ever, to be necessary to determine whether an is the price of prostitution, and illegal and void.” action for a constructive assault, arising out of The cases which follow Walker v. Perkins are too such transactions as the plaintiff has deposed to, numerous for quotation, and assume every shape can be maintained to recover pecuniary damages, and form. In Pearce v. Brooks, which I have beor can in any shape receive the sanction of the fore referred to, it was held that the plaintiffs, court. “Ex turpi causa non oritur actio" is a coach builders, could not recover from the defendmaxim of the law and a rule of public policy, and ant, a prostitute, the hire of a broughamı supplied its due application tends, if not to repress, at least to her with the knowledge that she was a prostito discourage vice and crime. To constitute - causa tute, and would use the brougham as part of her turpis " it is not necessary that the transaction professional display. The Chief Baron says, the should amount to a crime or to a breach of the plaintiffs can derive no cause of action from such positive law-immorality is sufficient. No court a bargain. In Taylor v. Chester, L. R. 4 Q. B. 309, should lend its ald to a plaintiff whose claim is where the plaintiff deposited the half of a £50 note founded on his or her own immoral act. In the as a security for suppers supplied by the defendant, case of Pearce v. Brooks, L. R.1 Ex. 218, Pollock, the keeper of a brothel, to be consumed by the C. B., says: “Nor can any distinction be made plaintiff and certain prostitutes in a debauch, it between an illegal and an immoral purpose. was held that, as the plaintiff could not recover the Whether it is an immoral or an illegal purpose in note without showing the true character of the which the plaintiff has participated, it comes transaction, he was precluded from obtaining the equally within the terms of the maxim, and the assistance of the law; for the court will not assist effect is the same. No cause of action can arise an illegal transaction in any respect. Lord Mansout of either the one or the other."

field puts the matter on its true foundation in HolThen, does the plaintiff's supposed cause of ac man v. Johnson, Cowp. 343, where he says: “It is tion spring from her own immorality? What is it? not for the defendant's sake that the objection that It is that, at some period in the course of a long-| the transaction is iinmoral or illegal is ever alcontinued prostitution of her person to the last of lowed, but it is founded in general principles of the defendant, he suppressed from her the fact policy, which the defendant has the advautage of. that he had contracted and was affected with vene The principle of public policy is this, ex dolo malo real disease, and he communicated that disease to non oritur actio. No court will lend its aid to a her. The judge and a jury were occupied for at man who founds his cause of action on an immoral least two days in investigating this case, and we or on an illegal act. If, from the plaintiff's own stathave had the time of the court taken up for a con ing or otherwise, the cause of action appears to siderable period in examining into its loathsome arise ex turpi causa, or the transgression of a posidetails, in order that the plaintiff should recover tive law of this country, then the court says he has damages for results arising from her own immoral no right to be assisted." They will not lend their ity. The language of the judgment-seat has been : aid to such a plaintiff. Stockdall v. Onwhyn, 7 D. "You shall not stipulate for iniquity," and "no & Ry. 625, is also a representative case, followed in polluted hand shall touch the pure fountains of an infinity of others. It was an action for an injustice." Per Wilmot, C. J., in Collins v. Blan fringement of copyright in a work, “ Memoirs of tern, 2 Wils. 341. The policy of the law demands Harriett Wilson." Plea-Not guilty. The work apthat for public protection the parties to illegal or peared to be immoral, and the learned judge, at the immoral transactions shall have no redress against trial, held that the plaintiff' was not entitled, in reeach other in a civil court for consequences flow spect of it, to the protection of a court of law, and ing directly from their illegal or immoral acts non-suited. And Abbott, C. J., says, p. 631: “The Nemo ex turpi causa consequitur actionem. The dig sale of such a book is a criminal offense in itself; nity of the court requires that it should not be

and it is not to be imagined that we, the judges of called on to investigate such transactions at the in a coart of law, can recognize that as a right in one stance of either of the guilty participators, save form, which we know to be punishable as a violawhere the poblic interests are involved in the re tion of the law in another. To do so, would be to pression of crime.

outrage every principle of common law, of comThe authorities on the subject are very numerous, mon sense, and of common justice; and therefore, but I shall allude to a few only, commencing with I for one am of opinion, that we want no judicial one of doubtful genuineness-Everett v. Williams authority for deciding, that this action is not mainoften referred to, and given in the note to Pothier, tainable." Fivaz v. Nicholls, 2 C. B. 501, is also by Evans, vol. 2, p. 3. There, though disguised in | deserving of attention. The pleadings are too long language, the snit turned out to be a bill for an to be brought in here. The action arose out of an account of the proceeds of property procured by illegal agreement to pass a bill to be given to dehighway robbery. The suit was stopped at once fendant in consideration of his abstaining from by the judge, who refused further to hear it, com prosecuting C., who was charged with embezzlemitted the solicitor, and fined the counsel who signed ment; and it was held, that inasmuch as the the bill. Walker v. Perkins, 3 Burr. 1568, is a rep- | plaintiff could not make out his case except through resentative case. It appeared there that the bond, I the illegal transaction to which he was a party, the action could not be maintained, Maule, J., saying, p. 514: “As soon as it had been shown by plea that the transaction out of which the plaintiff's right to recover, if any, arose, was illegal, the action would have been answered."


It was urged, however, before us by the plaintiff's counsel, that this question does not arise on the record, as there is no defense relying on the immorality of the transaction. It seems to me, however, that the question is quite open and that it does not lie with the plaintiff to say that it is not. The plaintiff complains that the defendant assaulted her—that is to say, that he committed a forcible offense against her person. The defendant traverses the assault. Upon the evidence it appears that the use of the plaintiff's person, of which she complains, took place with her consent. and was, therefore, prima facie, no assault. She calls on us, however, to inquire further into the transaction-to ascertain whether, at the time of the particular act by which she alleges disease was communicated to her, the defendant was diseased, and knew that he was so, but suppressed the fact from her; and she asks us to determine and adjudge that, although she consented to the long course of concubinage or prostitution, and did in fact consent to the particular act of sexual intercourse in which disease was communicated to her—yet that her consent was null and vitiated by the suppression of the defendant, and that she is entitled to treat the particular act of sexual intercourse as an assault. It seems to me that the whole matter is open on the defendant's plea denying the assault, and that the moment it appeared, on the plaintiff's evidence, that the transaction itself was an immorality to which the plaintiff assented, there was an end of the action, so far as it related to the assault. Probably the more correct course for the judge at the trial would bave been to have declined to enter on the inquiry which plaintiff's counsel demanded, and have non-suited the plaintiff—inasmuch as no action can be countenanced by the court which springs ex turpi causa.

But as the decision at the trial rested on Regina v. Bennett, 4 F. & F. 1005, it becomes necessary to consider that case. Mr. Justice Willes there assumes that the prosecutrix, being capable of consenting, had consented to sexual intercourse with the prisoner, but would not have done so if she had known he was diseased; and then, applying to the case the rule that fraud vitiates consent, held that the prisoner was guilty of an assault in the act of sexual intercourse. I may observe on the case that it is the great repute of the judge which alone entitles it to consideration.* The ruling of the judge is uncalled for by the facts. There was no consent to the prisoner's act. The girl stated that she fell asleep immediately on going to bed, and recollected nothing. She was not aware that sex

ual intercourse had taken place, but a week afterwards was found to be infected with disease. The prisoner was undefended and no question was reserved. The case resulted in a correct verdict if, as appears, there was no consen: in fact to the sexual intercourse. Assuming, however, that there was evidence of consent, and taking the proposition as stated, which the judge intended to decide, it seems to me that it was a mistake to apply the principle to such a case, and that the consequence of doing so would be most serious. There is no doubt that fraud may vitiate consent; or, to apply it more familiarly, every contract implies consent, and nu valid contract can be founded on a fraud. Fraud nullities a contract; and if an action is instituted to enforce a supposed contract, it is a good answer that the defendant's assent to it was obtained by fraud; or a suit may be instituted to rescind a contract on the ground that the plaintiff was induced to enter into it by fraud. But Regina v. Bennett, is the first instance in which the maxim was applied to an agreement for immoral sexualintercourse. I have always understood that the whole of a contract for an immoral purpose was absolutely void. If the maxim is to be so applied, where are we to stop? We must necessarily apply the rule " suppressio veri” in favor of the common prostitute, who chooses to allege that some one of the people who have used her for pay has communicated disease to her. Respect for the court prohibits me from following out the numerous and graphic illustrations put by the defendant's senior counsel. I may point out that Regina v. Bennett rests not on the vitiation of consent, but on the aggravated results. Thus, the judge says that it was the fraud practised on the girl in concealing the fact of the prisoner's diseased state, which vitiated her consent to sexual intercourse; but, would the indictment lie for an assault if it had not been for the subsequent result? Regina v. Bennett is, in truth, a case in which a familiar maxim was strained and misapplied to reach a person who had, undoubtedly, been guilty of a great moral offense.

We must not confound Regina v. Bennett with a class of well-decided cases where the female, having submitted to particular treatment, was fraudulently subjected to sexual intercourse, such as Regina v. Flattery, 13 Cox. C. C. 388. Rape on Lavina Thompson, aged nineteen; the prisoner professing to give medical advice, had sexual connection with the girl, having fraudulently induced her to believe that he was treating her medically, and to submit to his treatment because she so believed. The court held (lamenting the decision in Regina v. Barrow, 11 Cox. C. C. 191) that there was no evidence of consent. The prosecutor subinitted to a surgical operation for her cure. The prisoner fraudulently did another thing. She never consented or knowingly submitted to sexual connection. So, in Regina v. Lock, 2 Cr. Ca. R. 10, it was held that mere submission by one who does not know the nature of the act to be done can nct be consent. The case of Regina v. Case, 1 Den. C. C. 580, was an indecent assault on Mary Impett, a girl of fourteen, under pretense of med

[ocr errors]

ical treatment. She submitted, believing it was plaintiff should be set aside and a non-suit entered medical treatment. Per Curiam-She consented to if there has been a reservation at the trial, Alone thing; he did another materially different. / though one can not fail to have commiseration PATTERSON, J. The argument confounds active for the unhappy plaintiff, yet I am not unwillconsent with passive non-resistance. PLATT, B. | ing by this decision to endeavor to relieve this Here non-resistance was caused by fraud, and he court from assuming the active guardianship of is therefore criminally responsible. In the case prostitution, or the duty of enforcing the rule before us the plaintiff actively consented to the uberrimæ fidei in immoral contracts or transactions. very thing—that is to say, to sexual intercourse, BARRY, ., concurred. with full knowledge and experience of the nature Conditional order made absolute. of the act. If Regina v. Bennett is law, the statute 12 & 13 Vict. c. 76, s. 1-re-enacted 24 & 25

NOTE.-It had been long a moot question of crimVict. c. 100, s. 49—was not necessary. By this

inal law as to whether such an act as was committed enactment it is provided that whoever shall, by ! in this case constituted an assault; but, although doubt false pretences, false representations, or other had been frequently expressed as to whether it could fraudulent means, procure any woman or girl under amount to a criminal offense, still there were decisions the age of twenty-one years to bave illicit inter

to which we shall presently refer which would seem to course with any man, shall be guilty of a inisde

point in that direction. But it had never yet been con

tended that such an assault could constitute a cause of meanor. Regnia v. Bennet derives no weight from

civil action. The principal case relied on for the plainRegina v. Sinclair 13 Cox. C, C. 28, save the acqui

tiff was Regina v. Bennett, 4 F. & F. 1005, where the escence of the judge in the maxim that consent law is laid down by Mr. Justice Willes in the broadest will be vitiated by deceit. It was admitted in that possible way, as follows: “An assault is within the case that there was no evidence of such an amount

rule that fraud vitiates consent, and, therefore, if the of resistance as would justify a conviction for rape,

prisoner, knowing that he had a foul disease, induced but the girl did resist, and there was nothing from

his piece to sleep with him, intending to possess her,

and infected her, she being ignorant of his condition, which consent could be inferred. The prisoner was

any consent which she may have given would be vitiated, convicted of an assault doing actual bodily harm, and the prisoner would be guilty of an indecent assault." and I am not quite able to see how that verdict Nothing could be more explicit than this, and if it were could be sustained in the particular case where the law it would bave established the case of the plaintiff case failed as a rape. In Regina v. Bennett it seems

to a considerable extent. But we must consider what to have been forgotton that, as a general rule, an

the circumstances of the case were which drew from

that very eminent judge this strong expression. There indictment does not lie for a mere private injury,

the prisoner was indicted for indecent assault upon unless it, in some measure, concerns the Crown, as

his niece, a child of thirteen years. It appeared he had representing public interest, or is accompanied by given liquor to her before she went to bed, and that circumstances which amount to a breach of the she had fallen asleep, and while so asleep the act of peace. It was urged for the defendant that, even intercourse was committed. Of course such an though Regina v. Bennett was well decided, yet

act, committed under these circumstances, plainly that it did not follow that a civil action to recover

amounted to an assault; there had been no consent on

the girl's part of any kind, and the fact that she had damages will lie in respect of the same transaction.

acquired a venereal disease in consequence, though no This is one of the difficuties which flows from Re

doubt an aggravation of the offense, did not constitute gina v. Bennett. An assault is properly defined to in any way the offense itself, which was complete quite be the commission of, or an attempt to commit, a apart from any such circumstance. It will be seen forcible crime on the person of another; and if the

that the observations of the learned judge we have transaction amounts in law to a criminal assault

quoted were entirely extra-judicial. At best his de. the logical result would seem to be that an action

cision was only a nisi prius one, and not entitled to

the respect always due to the fully considered decis. for damages may be maintained. But, as an in

ions of Mr. Justice Willes. The only other case cited dictment lies only in the public interest, and not as bearing out this doctrine was Reg. v. Sinclair, 13 for a mere private injury, so there are many cases Cox C.C. 28, where Mr. Justice Shee acquiesced in the in which an indictment may be sustained, and yet maxim that in such a case fraud may vitiate consent; no action lies for civil redress by any of the parties

| but there was abundant proof in that case of absence to the illegal transaction. In my opinion, even if

of consent, in fact, of positive resistance, although not the ruling in Regina v. Bennett was correct, I

enough to justify a conviction for rape. That case

loses some weight in consequence of its not having should be prepared to hold that no action for an

been reported for several years after its decision, and assault could, under the circumstances, be main

as the dictum of the learned judge was unnecessary to tained. Fraud may vitiate consent, even in such the decision of the case, it is not entitled to more cona case, for the purposes of criminal justice, though sideration than Bennett's case. These two cases are I may doubt its applicability where there has been virtually the only ones to be found on the subject, for no breach of the public peace. But can such sup

the class of cases where a woman consented to inter

course under the impression that she was submitting pression as is here alleged confer a right of action.

to a medical operation, induced by the fraud of the In my opinion it can not.

prisoner, as in Rex. v. Flattery, 13 C.C.C. 385; 46 L.J.M. The conclusions at which I have arrived are: 1. C. 130, are plainly distinguishable. In that case, which That the maxim "exc turpi causa non oritur actio" Sir J. F. Stephen observes “bas thrown much unceris applicable. 2. That the court should declare

tainty over the law " (Dig. Cr. L. 171), the female that it can not permit such an action as the pres

consented to one thing and the prisoner did another

in its very nature different, while in the present ent to be entertained. 3. That Kegina v. Bennett

case the woman was a consenting party to the should not be followed. 4. That the verdict for the immoral act. The Lord Chief Justice, however, was of opinion, differing from the majority of the court, tion; for so jealous is the law of such a defense being that the action lay. He observed: “It is not difficult set up (as where a school-master takes liberty witba to suggest cases of a less unpleasant character than that female scholar, R. v. Nichol, Russ & R. 130; or where a immediately before the court. If a patient submits to doctor pretends that it is necessary to strip a female the performance of an operation by a surgeon, he can patient; R. V. Rosinski, 1 Moody, C. C. 19), that it is innot treat that as an assault nor complain of injurious cumbent on the defendant to stow in the clearest manconsequences; but supposing that the operator used ner that the act was committed with complete, and not in the operation a poisoned instrument, knowing the merely simulated consent, otherwise the presumption injurious consequences that would follow, could not will be against him. Weaver v. Ward, Hob. 134; Dick. the person injured sustain an action of assault, as for a enson v. Watson, T. Jones, 205.-[ED. IR. L. T. trespass committed on the person without his consent? Could he not establish that to such an operation involving such consequences he did not consent, though he did permit an operation of a different character?”


NOTES OF RECENT DECISIONS. A contrary view was, however, taken by Mr. Justice Barry and Mr. Justice Fitzgerald, the former obsery. ing: “In the present case the plaintiff deliberately

TRIAL BY JURY OF MINOR OFFENSES.- People v. and knowingly consented to the act of sexual inter

Justices of Special Sessions. New York Court of course which is the assault relied on. The alleged fraud

Appeals, 18 Alb. L. J. 254. Opinion by CHURCH, C. was the concealment from her, not of the act of assault,

J. 1. The constitutional provision that the trial by but of the danger of a physicial consequence of her

jury in all cases in which it has been heretofore used willful act of immorality; and I do not think she ought shall remain inviolate forever," does not apply to petty to be heard either in, a civil or criminal court to allege offenses triable before a court of special sessions. 2. that the act was done against her will so as to consti Relator, who was charged before a police justice in tute an assault. Volenti non fit injuria." This view New York city with an assault and battery, elected to of the case was also taken by Mr. Justice Fitzgerald, be tried by the special sessions, gave bail to appear at who further observed, and in our opinion most prop such court for trial, appeared and was tried by the erly, that such causes of action were unfit for the dig court without a jury without objection, and was connity of a court of justice, and that no person whose victed. Held, 1. That relator had not a right to a jury hands were unclean should be suffered to approach the trial which could not be waived. 2. That by giving bail temple of justice. On this point, and on the applica the court did not lose jurisdiction; and 3, that his trial tion of the doctrine ex turpis causa non oritur actio, as and conviction were not error. well as the act complained of did not constitute an

BILL OF EXCEPTIONS-DUTY OF JUDGE- MANDAassault, the court decided against the action, refusing

MUS.–Page v. Clopton. Supreme Court of Appeals to follow R. v. Bennett. We have no doubt the decis

of Virginia, 2 Virginia L. J. 560. Opinion by BURKS, ion was a sound one, and trust this unsavory cause of

J. 1. On the 22d of March, 1878, a judge in court, im. action will never again be brought in our courts. That a

posed a fine on P, an attorney, for alleged contemptu. transaction directly involving a violation of established

ous behavior in the presence of the court, and, at the rules of decency and morality, even though not for

same time, a motion was made by another attorney to rebidden by the common law under penalties, comes

mit the fine, which motion was continued until a further within the meaning of the turpi causa, we have no

day. On the 25th of the same month, the court overruled doubt whatever. In the words of Bramwell, B., “A

the motion to remit the fine, and ordered the sergeant thing may be unlawful in the sense that the law will

to take Pin custody, and detain him until the fine was not aid it, and yet that the law will not immediately punish it.” Cowan v. Milbourn, L. R. 2 Ex. 236. And

paid, P was in court on both of these days, and no

exception was taken to the action of the court. On while we fully agree with Mr. Justice Fitzgerald in

the 27th of the same month, and during the same this respect, we also agree with him in holding, on the

time, P, who had paid the fine under protest, ap. authority of Fivaz v. Nicholls, 2 C. B. 501, 513, that the

peared in court, and offered to except to the maxim is not confined to causes of action et con

judgment imposing the fine, and moved the court tractu, At the same time we can not but share in the

to certity the facts on which the judgment was natural reluctance expressed by the Lord Chief Justice

ordered, and that witnesses be called to testify to to allow a wrong-doing defendant to escape under cover

these facts, which, for reasons stated by the court, was of that doctrine; but we must remember that, in the

refused. No bill of exceptions appeared to bave been words of Lord Mansfield," it is not for his sake that

tendered on this day, but on the 30th day of the same the objection is ever allowed, but it is founded in gen

month, the last day of the term, P tendered three bills eral principles of policy which the defendant has the

of exceptions to the judgment and rulings of the court, advantage of, contrary to the real justice as between

which the judge refused to sign, and P applied for & him and the plaintiff by accident, it I may say so. The

mandamus to compel him to sign the same. Held, (1.) principle of public policy is this: E.c dolo malo non

The writ of mandamus will lie to compel the judge to oritur actio. No court will lend its aid to a man who

sign bills of exceptions in this case, if "the truth of the founds his cause of action on an immoral or an illegal

case be fairly stated therein.” (2.) When a bill of ex. act. If, from the plaintiff's own stating or otherwise,

ceptions is tendered, which does not fairly state the the cause of action appears to arise ex turpi causa, or

truth of the case, it is the duty of the judge, with the the transgression of a positive law of this country,

aid of the counsel, to settle the bill, and when settled then, the court says, he hus no right to be assisted. It

to sign it, and if he refuses to do this, mandamus will is upon that ground the court goes; not for the sake of

lie to compel him. 2. The usual practice is to give no• the defendant, but because they will not lend their aid

tice of the exception at the time the decision is to such a plaintiff. So, if the plaintiff and defendant

made, and reserve liberty to draw up and present the were to change sides, and the defendant was to bring

bill for settlement and signing, either during the trial, his action against the plaintiff, the latter would have

or after the trial, and during the term, as may be al. the advantage of it; for, where both are equally in

lowed by the court, but it must be signed during the fault, potior est conditio defendentis.Holman v.

term at which final judgment is rendered; and it will Johnson, Cowp. 343. But, on the other hand, as re

be disregarded in the appellate court it signed after the gards consent to the assault complained of, it must be borne in mind that the plaintiff is in the better posi

end of such term, although signed pursuant to a previo | ous order allowing it, unless, perhaps, such order be made by consent of parties. 3. The office of the writ the only question is, whether the court erred in exof mandamus is to compel corporations, inferior cluding this evidence. SCHOLFIELD,C.J., who delivered courts, and officers, to perform some particular duty, the opinion, says: “It does not appear from the abincumbent upon them, and which is imperative in its stract tbat appellant proved, or offered to prove, that nature, and to the performance of which the relator when the contract was made or when the school was to has a clear legal right, without any other adequate have been commenced he had a certificate of qualificaspecific legal remedy to enforce it; and even though he tion as teacher obtained under the provisions of the may have another specific legal remedy, if such rem statute. * * * But waiving this objection, howedy be obsolete or inoperative, mandamus will lie. ever, we are of opinion that the court properly exThe remedy is extraordinary, and if the right is doubt cluded the evidence offered of the written contract, beful, or the duty discretionary, or there be any other ad cause school directors have no power to make conequate specific remedy in use, the writ will not be al tracts for the employment of teachers for terms to lowed.

commence beyond the expiration of the current school year. The law provides that * * * it is

the duty of this (school) board to establish and keep ABSTRACT OF DECISIONS OF SUPREME

in operation for at least five months in each year, etc. COURT OF ILLINOIS.

It is here seen that power is given alone with reference to the current year. The rule is familiar that the pow

ers of school directors are limited to those expressly [Filed at Ottawa, June 21, 1878.)

granted, or such as result by necessary implication

from those granted. We think the spirit and intent of Hon. JOHN SCHOLFIELD, Chief Justice.

the law is clearly repugnant to the idea that one board SIDNEY BREESE,

of directors may, by contract wholly to be carried out T. LYLE DICKEY,

in the future, divest future boards of directors of the BENJAMIN R. SHELDON, Associate Justices.

power to select the teachers they shall desire for the PICKNEY H. WALKER.

terms to be commenced after their organization.” AlJOHN M. SCOTT,

firmed.- Stevenson v. School Directors. ALFRED M. CRAIG,


EXEMPTION.-This was an action of replevin for corn EJECTMENT – LIMITATION ACT – PAYMENT OF standing in the field, which had been levied upon by TAXES FOR SEVEN YEARS.–This was ejectment orig the defendant as constable, under execution against inally brought by A, but he having died, L as his de. the plaintiff. Plaintiff had raised the crop as tenvisee was permitted to prosecute as plaintiff. There was ant, and was to have three-fifths of it. The property a trial by jury and a verdict for plaintiff as to one-fifth was claimed by plaintiff under the 9th clause, 13th secof the premises and for defendant for four-fifths. from tion, Rev. Stats. 499, in relation to property exempt which plaintiff appealed. The plaintiff made out a clear from execution, which is as follows: “Ninth.-One title from the Government and rested. The defendant

hundred dollars worth of other property, suited to his claimed to defend under the first section of the limita or her condition in life, selected by the debtor.” Plaintion act of 1839. He succeeded in showing color of ti tiff claimed and replevied the whole crop. The tle and payment of taxes for seven successive years,

testimony showed that such three-fifths was worth sion taken. BREESE, J., who delivered the more than $100. The court below refused this inopinion, says: “The infirmity of his (defendant's) case | struction, asked by defendant: “The court inrests in this that his first payment of taxes to make structs the jury that, before the plaintiff in this seven years was not seven years before suit was case can recover the corn in question, he must show brought. Suit was brought December 18, 1875. Taxes that he demanded and claimed it as exempt, and were first paid by defendant February, 1868. Un selected it as exempt before levy, or as soon as he had der thc limitation act the concurrence of three things notice of such levy; yet, if the jury believe ibat his is required before the limitation is complete, namely, interest in saiu corn was worth more than $100, then color of title, possession and payment of taxes. And, plaintiff could not select it as exempt wthout specifyfurther. the payment of the taxes for seven years, ing a portion thereof, not exceeding in value $100; coupled with color of title and possession is not alone and, unless they believe such selection was so made, sufficient to create the bar. A period of seven years the law is for the defendant on this point, and the jury must have intervened between the day when the first

will so find." The court say: “The instruction payment of taxes was made and the day of the com should have been given. The statute requires the mencement of the suit. See 45 III. 478, and 46 Ill. debtor to make the selection, and it should be done at 519. There not being the requisite concurrence to the time of the levy, or when the execution debtor has support defendant's claim, judgment should have been notice of it, to afford an opportunity to levy upon other rendered for the plaintiff for the land." Reversed. - property, or resort to other means for the collection of Lyman o. Smilie.

the execution.” Held, also, that an instruction to the

jury that "it is their duty, under the law, to construe CONTRACT – CERTIFICATE OF QUALIFICATION

the exemption law liberally towards the plaintiff," is -POWER OF SCHOOL DIRECTORS TO CONTRACT

erroneous. Reversed.-Amend v. Smith. WITH TEACHERS. – Plaintiff brought suit against school directors of district No. 1, on a contract to teach PRACTICE – AFFIDAVIT OF MERITS-LEAVE TO school for the term of nine months, alleging that he AMEND.-This was an action of assumpsit upon a was ready and offered to teach the school, but was promissory note. Plaintiff filed with his declaration prevented from so doing by the school directors. On an affidavit of claim. Defendant pleaded the general the trial he offered in evidence an instrument of writ issue, and filed therewith an affidavit of merits, which ing tending to prove the making of a contract. This was sworn to before a notary, who had failed, however, was excluded. He also offered to prove that when he to affix his official seal. The plea was stricken from was on the way to the school-house he was met by two the file, and judgment rendered for the plaintiff. When directors and requested to delay commencing the the motion was made to strike the plea from the files school for one week on account of bad roads, which he for want of a sufficient affidavit, defendant did not agreed to, and that before that time he way notified abide by the affidavit, but asked leave to amend it. that his services were not needed. This was also ex This the court refused, unless defendant would show a cluded. Judgment was rendered for defendants, and ' meritorious defense. Appellant then asked for time

« PreviousContinue »