JURY. QUESTIONS OF LAW AND FACT. Continued.
not, probable cause, but it is the duty of the court, when asked, to in-
form the jury what facts constitute, and what do not constitute, proba-
ble cause, leaving it to the jury to say whether such facts are proved.
Bourne v. Stout, 261.
4. Whether the maker of a promissory note was negligent as to the character
of the instrument he signed. See FRAUD AND CIRCUMVENTION, 2.
5. As to the intent in publishing a slanderous statement. See SLANDER,
2, 3.
IN CHANCERY-CONTEST OF A WILL.
6. Trial by jury not always necessary. See WILLS, 20.
TAKING PRIVATE PROPERTY FOR PUBLIC USE.
7. Compensation to be determined by a jury. See RIGHT OF WAY,
1 to 8.
A bill for an act entitled "An act to increase the jurisdiction of justices of
the
peace and police magistrates," printed in the Session Laws of 1871, did
not become a law. See STATUTES, 1.
HOW THE RELATION TERMINATED.
1. Where, before the expiration of the term, the landlord, with the
consent of the lessee, makes a new lease to another person, who enters
into possession and pays rent to the landlord, this will terminate the
first lease, and from that time will bar a recovery of rent from the first
lessee. Stobie et al. v. Dills, 432.
2. In a suit upon a written lease for the recovery of rent, the defend-
ants, who were the lessees, pleaded in bar as to the rent from a certain
day, that on such day the plaintiff, with the assent of defendant, leased
the premises to another person named, at a specified rent, and accepted
such person as his tenant in the place of the defendant; that such per-
son took possession of the premises, and has since paid the plaintiff all
the rent due under his lease, and the acceptance of rent from such new
lessee by the lessor, whereby the said indenture (sued upon) was can-
celed and annulled: Held, that the plea showed a complete defense to
the recovery of rent accruing after such new arrangement. Ibid. 432.
3. Surrender or abandonment by the tenant. The lessee can not surren-
der premises leased to him, before the expiration of the term, so as to
absolve himself from the payment of rent thereafter, without the con-
sent of the lessor; and the abandonment of the premises, with notice
thereof to the lessor, will not exonerate the lessee thereafter from his
obligation to pay rent, unless the lessor assents thereto. Ibid. 432.
LANDLORD AND TENANT. Continued.
RIGHT OF POSSESSION IN CROPS.
4. Where the landlord held the property in them as security. 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 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. Dunning v. South, 175.
1. Executed before the passage of the legal tender acts. A decree on the
foreclosure of a mortgage required the payment of the sum found due
to be paid in gold coin. The note and mortgage were made before the
passage of the legal tender act, and contained no provision as to what
kind of money should be paid, but were in the usual form for the pay-
ment of so many dollars: Held, that the decree in this respect was er-
McInhill v. Odell et al. 169.
PRIVILEGED COMMUNICATION.
1. Presenting a person for malfeasance in office. On the trial of an ac-
tion on the case for libel, the plaintiff offered in evidence a petition to
the judge of the circuit court, signed by the defendant and others, charg-
ing the plaintiff with gross neglect of his duty as State's attorney of the
circuit; with being willfully and corruptly guilty of oppression in
office, and of corrupt malfeasance in office; of taking bribes from par-
ties accused and indicted, and in pursuance of corrupt agreements re-
leasing them from prosecution, and containing many and various spe-
cific charges, and concluding by asking the judge to suspend the plaintiff
from the discharge of the duties of his office until the grand jury could
investigate the charges. The circuit court on objection refused to ad-
mit the same as evidence, on the ground that it was a privileged com-
munication: Held, that the court erred in refusing to admit the same.
It should have been admitted, and then the question would be whether
it was presented in good faith for the purpose of having a State's attor-
ney pro tem, appointed to prepare and prosecute an indictment against
the plaintiff, or prepared for a bad purpose and from malicious motives.
Whitney v. Allen 472.
1. And the enforcement thereof in equity. Where a bill in chancery
showed that complainant made a contract with the defendants, who
were non-residents, by which he undertook the collection of a debt se-
cured on a tract of land, incurring all necessary expenses and costs, and
assuming all risks, and for which, if successful, he was to receive one-
fifth of the proceeds, whether land or money; that a suit in chancery
was commenced by him and prosecuted to final decree, a sale of the
land made, and certificate of purchase issued to one of defendants, and
that they had refused to recognize the rights of complainant, with prayer
for a decree for one-fifth of the land, if not redeemed, otherwise for one-
fifth of the proceeds: Held, on demurrer, that the complainant was en-
titled to the relief sought, being entitled to an equitable lien on the land
under the contract. Smith v. Young et al. 210.
EQUITY CAN NOT CREATE A LIEN.
2. A court of equity has no power to create a lien beyond the gen-
eral one which follows from a decree for the payment of money. It can
only recognize and enforce a lien which is created by the acts of par-
ties. Dewey et al. v. Eckert, 218.
3. As against a prior grantee. Where a grantee of land had his deed
duly recorded before the recovery of a judgment against his grantor,
the judgment did not become a lien upon the land, and a purchaser of
the same, under execution on such judgment, will acquire no title.
Smith v. Smith et al. 493.
4. Rights of a sub-contractor. In a suit by a sub-contractor against the
owner of a building to recover for labor performed on defendant's
house, which he did under the contractor, it appeared that the con-
tractor had abandoned the work and that defendant had fully paid him
all he was entitled to before receiving any notice of the plaintiff's
claim: Held, that the plaintiff was not entitled to recover. Schultz v.
Hay, 157.
ATTACHMENT OF BOATS AND VESSELS.
5. Of the lien for materials and supplies. See ATTACHMENT OF
BOATS AND VESSELS, 1, 2, 3.
6. A mortgage has precedence of the lien of a material-man subsequently ac-
quired. See MORTGAGES, 5.
WHEN THE STATUTE BEGINS TO RUN.
1. In a suit by a plaintiff to recover for services rendered as an ar-
chitect, in which the statute of limitation was pleaded, it appeared that
WHEN THE STATUTE BEGINS TO Rrun. Continued.
the plans were completed more than five years before suit was brought,
but that he continued to act as architect, superintending the work on a
church until within five years of bringing the suit, when he was dis-
charged: Held, that the statute began to run only from the time of his
discharge. Catholic Bishop of Chicago v. Bauer, 188.
WHAT WILL BAR A MORTGAGE.
2. The statute of limitations which bars the debt can alone bar the
mortgage. Until the statutory bar of the debt is complete, an action
of ejectment can be maintained, or the mortgage foreclosed by bill in
chancery, or by scire facias. Medley et al. v. Elliott et al. 532.
3. Color of title-what constitutes. A bond conditioned for the execu-
tion and delivery of a deed upon a compliance with its terms in the
future is not color of title within any fair construction that has been or
can be given to the 8th section of Ch. 24 R. S. 1845. It does not, on
its face, purport to convey title. Rigor v. Frye et al. 507.
4. To constitute color of title under either the eighth or ninth sec-
tions of this statute, the deed or instrument must purport, on its face,
to convey the title to the land to the grantee named. It must appar-
ently transfer the title to the holder of an interest in the land to enable
him to invoke the aid of either section of the statute. Ibid. 507.
5. In ejectment the plaintiff showed a prima facie title to the land in
controversy. The defendant had been in possession of the premises
seven years before the institution of the suit, and had paid all the taxes
legally assessed thereon during that period, but had no deed purport-
ing to convey the title to the same during the first four years of his
possession. During that period he only held a bond for a deed from a
person whose only claim to the land was a certificate of purchase at a
tax sale: Held, that the defendant could not invoke the aid of the eighth
section of the conveyance act to defeat a recovery. Ibid. 507.
6. It seems that no distinction can be taken as to what constitutes
color of title under the eighth and ninth sections of the conveyance act.
Ibid. 507.
7. Who may rely upon the statute. The grantees of a mortgagor are
not protected in their title against the foreclosure of the mortgage duly
recorded, by seven years' possession and payment of taxes under the
first section of the limitation law of 1839. Medley et al. v. Elliott et al.
8. From the peculiar relation of mortgagor and mortgagee, and the
fact that a purchaser from the former succeeds only to his rights, with
notice of the incumbrance, and the consequent privity between the par-
ties, the possession of such purchaser must be considered as in subordi-
nation to the mortgage, and not hostile; and it can not cease to be of
that character until there is an open disclaimer of holding under it,
LIMITATIONS. LIMITATION ACT OF 1839.
and the assertion of a distinct title with the knowledge of the mortgagee. Medley et al. v. Elliott et al. 532.
9. Character of possession required. The possession required under the limitation law of 1839 must be adverse. It must be hostile in its inception, and so continue. It must be an actual, continued, visible, notorious, distinct, and hostile possession. Ibid. 532.
IN SLANDER. See SLANDER, 1, 2, 3.
1. In an action for malicious prosecution in procuring the plaintiff's arrest on a criminal charge, if it appear that defendant had probable cause to believe that plaintiff was guilty, the defendant will not be liable. Bourne v. Stout, 261.
2. In such a case it is not necessary that all the facts shall be true upon which the prosecutor acts. If he honestly believes them to be true, and they are of such a character as would induce a reasonable and prudent man to believe them to be true, then there is probable cause. Ibid. 261.
3. Advice of counsel. Where a party procured an indictment to be found against another, it was held, in an action for malicious prosecution against him, that, if in so doing he acted under the advice of counsel, after having communicated to such counsel all the facts bearing upon the guilt or innocence of the accused, of which he had knowledge, or could, by reasonable diligence, have ascertained, the advice thus given was a protection against such prosecution. Wicker v. Hotchkiss, 107.
1. A writ of mandamus is never granted, of course, but only at the discretion of the court, and only where some just and useful end is to be attained. The People v. Illinois Central Railroad Co. 510.
WITHDRAWING DEMURRER TO RETURN.
2. And forming issue of fact. The return to the alternative writ in this case having traversed all the material allegations in the writ, a demurrer thereto was overruled, and leave given the relator to withdraw the same, and make an issue of fact. Ibid. 510.
IN AN ACTION FOR PERSONAL INJURIES.
1. Whether mental anguish to be considered. In an action to recover
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