Opinion of the Court. Syllabus. place of the accident, was defective, and that there was carelessness in the use of the brake, with a crowded platform. The evidence as to the indulgence in sport on the part of the deceased at the time, is conflicting. Indeed, as is usual in this class of cases, the witnesses very flatly contradict each other. The weight, to be given to one more than another, has been, and properly should be, determined by the jury. The attempt of this court to reconcile conflicting evidence, to determine its preponderance when fairly balanced, and to decide as to the credibility of witnesses, would be a usurpation of the functions of the jury. The judgment is affirmed. Judgment affirmed. MCALLISTER, J., having been of counsel in the court below, took no part in the decision. WILLIAM KELSEY REED, impleaded, etc., v. GERTRUDE V. REBER et al. 1. CORONER-service by a deputy. When the office of sheriff has become vacant by his continued absence, the coroner becomes ex-officio sheriff, and all the rights, powers, and duties of the sheriff will devolve upon him until the vacancy is filled in some other legal mode; and service of process by his deputy will be legal. 2. CHANCERY-cloud on title-tax title. Equity has jurisdiction to entertain a bill to remove a cloud upon title occasioned by an outstanding tax title, when no notice of the sale for taxes, and of the time when the redemption will expire, was served upon the parties in possession before taking out a deed, as required by the constitution. 3. SAME-relief. On bill to remove a cloud caused by a tax title acquired without service of any notice on the parties in possession, the circuit court decreed that the holder of the tax title convey his title to complainant. There was nothing in the bill showing that there was any contract, trust relation, or other equitable grounds requiring the party to convey his tax ti Syllabus. Opinion of the Court. tle: Held, that the decree was erroneous. The proper decree in such case is, to perpetually enjoin the holder of the outstanding title, his heirs and assigns, from asserting the same. APPEAL from the Circuit Court of Cook County; the Hon. HENRY BOOTH, Judge, presiding. This was a bill in chancery to remove a cloud occasioned by a tax title acquired by the appellant on a sale for taxes in August, 1865. The objection to the tax deed, among other things, was, that the purchaser did not notify the person in whose name the land was taxed, and the person in possession, three months before the expiration of the time of redemption, of the time when the redemption would expire. The summons was returned served, and the return was signed "B. S. Cleaves, coroner, and ex-officio acting sheriff, by T. E. Stacy, deputy." Mr. GEORGE SCOVILLE, for the appellant. Mr. JUSTICE WALKER delivered the opinion of the Court: This was a suit in equity, brought by appellees, in the Cook circuit court, against appellant for the purpose of removing a cloud on the title of certain lots held by appellees. No answer having been filed, the bill was taken as confessed; the case referred to the master, who reported the evidence upon which the court found the tax deed void, and decreed that appellant, his heirs and assigns, be enjoined from relying upon, or asserting any claim under his tax title, and that he convey his title by deed of release to appellees. We perceive no objection to the manner in which the service was had. The coroner, by the continued absence of the sheriff, had become, and was, ex-officio, the sheriff of the county. And being such, all the rights, powers, and duties of the sheriff devolved upon him. He thereby was authorized to appoint a deputy, that being a power expressly conferred upon the sheriff. By the vacancy of the office of sheriff, until the same was filled by election, or some other legal mode, the coro16-62D ILL. Opinion of the Court. Syllabus. ner succeeded to the office, and was required, by law, to discharge all the duties imposed by law upon the sheriff. There was no error in serving the summons by the deputy. In the case of Reed v. Tyler, 56 Ill. 288, it was held that a bill in equity would lie to remove the cloud occasioned by an outstanding tax title. In that case, the terms and conditions upon which such relief should be granted, are fully discussed, and we deem it unnecessary to repeat them here. But in this case, the court erred in requiring defendant below to convey his tax title to complainants. There is nothing in the bill to show that there was any contract, trust relation, or other equitable grounds, requiring appellant to convey his title to complainants. The proper relief in such cases, is, that the holder of the outstanding title, his heirs and assigns, be perpetually enjoined from its assertion. For this error the decree of the court below is reversed, and the cause remanded. Decree reversed. 62 242 131 630 62 242 111a 4616 THE MERCHANTS' INSURANCE COMPANY OF CHICAGO v. EZEKIEL MORRISON. 1. MARINE INSURANCE--implied warranty. By the rules of the law merchant and the common law, every voyage policy of insurance of a vessel implies a warranty of seaworthiness, and this warranty relates to the beginning of the risk, and that is when the vessel sails. Seaworthiness at the commencement of the voyage is a condition precedent, and if it does not then exist the policy is void, and the insurers are not responsible for a subsequent loss, even if it arises from another cause. 2. SAME-extent of warranty. This implied warranty imports that the ship is staunch and sound; of sufficient materials and construction, with sufficient sails, tackle, rigging, cables, anchors, stores, and supplies; a captain of competent skill and capacity; a competent and sufficient crew; a pilot when necessary, and, generally, that she is, in every respect, fit for the Voyage insured. Syllabus. Opinion of the Court. 3. SAME-time policy. But when a vessel was insured from the 1st day of April to the 30th day of November, 1869, against perils of the lakes, rivers, canals, fires, and jettison, excepting all losses, perils, misfortunes or expenses arising from incompetency of the master or insufficiency of the crew, or want of ordinary care and skill in navigating the vessel, and in loading, stowing, and securing the cargo, rottenness, inherent defects, overloading, and all other unseaworthiness, etc., and the policy contained an express warranty that the vessel was then in safety, and as to the business for which she was to be used, and the same was destroyed by fire while in port, not resulting from unseaworthiness: Held, that this being a time policy, as distinguished from a voyage policy, the law did not imply a warranty that the vessel should be seaworthy when she set out upon her first voyage, and that the company was liable for the loss. 4. CONTRACT-presumption. It is a general rule of law that when parties have deliberately put their engagements in writing, in such terms as import a legal obligation, without any uncertainty as to the object or the extent of such engagement, it is conclusively presumed that the whole engagement of the parties and the extent and manner of their undertaking was reduced to writing. In such case to add to it by implication would be to vary its terms and legal effect. APPEAL from the Superior Court of Cook County. Messrs. HITCHCOCK, DUPEE & EVARTS, for the appellant. Mr. H. S. MOORE and Mr. SIDNEY SMITH, for the appellee. Mr. JUSTICE MCALLISTER delivered the opinion of the Court: In June, 1868, the appellee, being engaged in the lumber business at Muskegon Lake, in Michigan, became the owner of the then propeller "Omar Pacha." This lake is situated some five miles from the east shore of Lake Michigan, is connected with the latter by a navigable river called the Muskegon River; constitutes a safe harbor, and is known as the Port of Muskegon. During the remainder of the season of 1868, after appellee became the owner, the propeller was employed by him in the lumber trade between that port and Chicago; at the close of navigation the vessel was Opinion of the Court. taken to the Muskegon harbor, where she remained until the 10th of April, 1869; during the winter of 1868-69 she was thoroughly overhauled, repaired, and changed into a lumber barge, the work and repairs costing upward of ten thousand dollars. On the 1st of April, 1869, while the vessel was still in that harbor, through the action of an insurance agent and solicitor a policy of insurance upon the body, tackle, apparel, and other furniture of this vessel was issued by appellant to appellee, insuring the same in the sum of three thousand dollars, from noon of the 1st day of April, 1869, to noon of the 30th day of November, 1869. This was a valued policy, containing an express warranty on the part of the assured that the vessel was then in safety; that she was to be employed exclusively in the freighting and passenger business, and to navigate only the waters, bays, harbors, rivers, canals, and other tributaries of Lakes Superior, Michigan, Huron, St. Clair, Erie, and Ontario, and River St. Lawrence to Quebec, usually navigated by vessels of her class during the portion of the life of the policy between noon of April 1st and noon of November 30th. * The perils insured against were of the lakes, rivers, canals, fires, and jettison, excepting all perils, losses, misfortunes, or expenses consequent upon, and arising from or caused by the following or other legally excluded causes, viz. : “ Incompetency of the master, or insufficiency of the crew, or want of ordinary care and skill in navigating said vessel, and in loading, stowing and securing the cargo of said vessel, rottenness, inherent defects, overloading, and all other unseaworthiness," etc. The policy contained the usual recital of payment of the premium. The vessel remained in the port where the repairs had been made, where she was at the time the policy was issued, until the 10th day of April, 1869, when, being laden with a cargo of lumber, she set out upon a voyage to Chicago. She continued engaged in the lumber trade between those ports until the 8th day of October, 1869, and then, while lying at a dock in the |