Opinion of the Court. Syllabus.

Mr. JUSTICE WALKER delivered the opinion of the Court:

In this case the fifth of defendants' instructions given by the court is like that given in the case of Frazee v. Milk, 56 Ill. 435, which was held to be erroneous, and for the giving of which the judgment was reversed. That case is decisive of this. The first of plaintiff's refused instructions is too general. Under it, the jury would have been warranted in finding defendant guilty, although appellant's cattle may have contracted the disease of Fowler & Earl's cattle, which were also on the same feeding grounds. Appellees are not liable for the acts of Fowler & Earl unless jointly done, and this instruction asserts the opposite of this doctrine. That instruction was properly refused. The second refused instruction is still more general, as it asserts that appellant could recover, if Texas cattle imparted the disease to his cattle, without limiting it to appellees' or the cattle of any person. It only requires the jury to find that the cattle of Fowler & Earl and those of appellees passed over the feeding ground, and the cattle of appellant contracted the disease from Texas cattle, to entitle him to recover. It does not require the jury to find that the cattle of appellees communicated the disease, as it should have done. It was also properly refused.

The judgment of the court below is reversed and the cause. remanded.

Judgment reversed.

WILLIAM H. DUNNING

ข.

ALEX. H. SOUTH, for use, etc.

1. REPLEVIN-right of possession. In a suit upon a replevin bond, brought after the dismissal of the replevin suit, the only issue made by the pleadings was, in whom was the right of possession to the crops replevied at the time of suing out the writ of replevin? It appeared that the plaintiff in replevin had leased his farm to the defendant in the replevin suit, reserving the property in the crops as security for the delivery of his share thereof. The jury

Syllabus. Statement of the case. Opinion of the Court.

found the right of possession in the tenant, the plaintiff in the suit on the bond: Held, that the verdict was right; and although the defendant may have had the property in the crops as a security, yet the right of possession was in the plaintiff.

APPEAL from the Circuit Court of Iroquois County; the Hon. CHARLES H. WOOD, Judge, presiding.

This was debt upon a replevin bond brought in the name of appellee, as sheriff, for the use of William F. Ward. The bond was given in a replevin suit by Dunning, appellant, against Ward, to recover certain crops. The replevin suit was dismissed by the plaintiff. Defendant in that action brought suit on the bond in the sheriff's name. By the pleadings the only issue presented was, whether Ward was entitled to the possession of the property at the time of the bringing of the suit in replevin. It appeared that Ward had rented lands of Dunning, and was to deliver a share of the crops as rentthe lease providing that all crops raised should be and remain the property of Dunning until Ward should comply with his agreement.

Messrs. ROFF, DOYLE & MCCULLOUGH, and Messrs. BLADES & KAY, for the appellant.

Messrs. MCINTYRE & WRIGHT, for the appellee.

Mr. JUSTICE BREESE delivered the opinion of the Court:

This was an action of debt on a replevin bond, given in an action of replevin, which had been dismissed by the plaintiff without a trial on the merits, and a defense made under the act of 1847.

The only issue before the jury was, in whom was the right of possession at the time of suing out the writ of replevin?

Under instructions, to which no exception was taken, the jury found for Ward, for whose use the action was brought, and we think correctly.

Though the property in the crops might be in appellant, the possession could not be, for by the very nature of the contract

Opinion of the Court. Syllabus.

it was in Ward who raised them. The property was in appellant only as security that Ward would deliver the one-third of the crop, which he could not do, if it was not in his possession.

Even if Ward had improperly converted the wheat, the contract did not give appellant a right to the tenant's share of the corn and oats. The evidence fully sustains the verdict, and the justice of the case seems to be as the jury have found. The judgment is affirmed.

Judgment affirmed.

JAMES H. BEVERIDGE et al.

v.

ANNA MULFORD et al.

1. CHANCERY PRACTICE-hearing. It is error to proceed to the hearing of a cause in equity and render a final decree therein at the same term of court at which replication is filed to the answer."

2. SAME. When one of the defendants to a bill in chancery, being interested in the land sought to be affected by the bill, had answered, and the court proceeded to hear the cause and render final decree at the same term at which replication was filed, both as to the defendant who had answered and another defendant who had acquired an interest in the land from his co-defendant, there being no evidence of acquiescence, it was held error. The case as to the defendant who had not answered should not have been finally disposed of before the hearing as to his co-defendant.

WRIT OF ERROR to the Circuit Court of Cook County; the Hon. ERASTUS S. WILLIAMS, Judge, presiding.

Messrs. CLARK & BEAN, for the plaintiffs in error.

Messrs. MOORE & CAULFIELD, for the defendants in

error.

"After replication is filed, the cause shall be deemed at issue and stand for hearing." Laws 1872, p. 334, sec. 29.

12-62d ILL.

Opinion of the Court.

Per CURIAM: This was a bill in chancery brought in the Cook circuit court on the 5th day of March, 1863, by the heirs of Edward A. Mulford, deceased, to set aside certain deeds made by their guardian on a sale under an order of court, of the lands belonging to the complainants when they were minors.

The bill alleged that the guardian conveyed the ten acres of land in question to one John McHugh, who subsequently conveyed it to John L. Beveridge; that he conveyed the same to James H. Beveridge, one of the plaintiffs in error, who conveyed an undivided two-fifth part of it to Andrew M. Beveridge, the other plaintiff in error.

At the July term, 1863, of said court, on the 8th day of July, James H. Beveridge filed his answer to the bill, denying material averments in it, and setting up equities of his own in the premises.

On the 14th day of July, of the same term, proof of publication of notice to defendants Hannah L. Olmstead, Agnes McClure, William B. Hendershott, and Andrew M. Beveridge, was made, and the bill taken as confessed against them, and a guardian ad litem was appointed for the infant defendants, Francis H., Jessie S., and Eliza Olmstead, who filed an answer for them, and thereupon on motion of complainants' solicitor it was ordered that the cause be referred upon the bill of complaint, and the answer of the infant defendants by their guardian ad litem, to the master in chancery to take proofs and report.

Afterward at the same term, on the 15th day of July, the complainants filed their replication to the answer of James H. Beveridge. On the 24th day of July, at the same term, the master filed his report in the cause, and thereupon at the same July term the court rendered a final decree as to all the defendants in favor of the complainants, setting aside the guardian's sale to McHugh and all the proceedings and conveyances subsequent thereto.

James H. Beveridge and Andrew M. Beveridge prosecute this writ of error, and assign for error, entering the decree

Opinion of the Court. Syllabus.

against them-they being solely interested in the tract of land in question, and their co-defendants being interested in entirely distinct tracts of land, purchased at the same guardian's sale. It was error to proceed to a hearing of the cause and render a final decree therein at the same term of the court at which the replication was filed. The statute in this respect provides, after replication is filed the cause shall be deemed at issue and stand for hearing at the next term; or, in default of filing such replication, the cause may be set for hearing upon the bill and answer; in which case the answer shall be taken as true, and no evidence shall be received unless it be matter of record to which the answer refers. The cause as to James H. Beveridge, was heard and determined at a term previous to the one at which it stood for hearing by law. This must be deemed irregular as to him, there being no evidence of his acquies

cence.

Andrew M. Beveridge held title to two-fifths of the land by deed from James H. Beveridge, and the case as to the former should not have been finally disposed of before the hearing of it as to James H.

For this error, the decree, as respects the two plaintiffs in error, is reversed, and the cause as to them remanded for further proceedings.

Decree reversed.

BENJAMIN BURTON et al.

v.

CITY OF CHICAGO.

1. SPECIAL ASSESSMENT want of confirmation of report. Where the ordinance of a city ordering the improvement of a street was valid, and it appeared that the commissioners appointed to estimate the total expense to be assessed upon the real estate deemed specially benefited, and that chargeable upon the general fund, acted within their jurisdiction in making their report and estimate of the cost of the work, and the assessment failed only for want of proper notice for confirmation, it seems that such report and ordinance may be adopted in a new proceeding, by a proper reference, which