Statement of the case.

been returned executed. Now, therefore, unless you, the said Orrin Forsyth, Willard Abbott, and Joseph F. Forsyth, partners, etc., shall persoually be and appear before the said Superior Court of Chicago, on or before the first day of the term thereof, to be holden at the court house in the city of Chicago, on the first Monday of September, A. D. 1869, give special bail and plead to the said plaintiff's action, judgment will be entered against you, and in favor of the said William C. Warren, and so much of the property attached as may be sufficient to satisfy the said judgment and costs, will be sold to satisfy the same. A. JACOBSON, Clerk.

And the following is the publisher's certificate:

This certifies that a notice, of which the annexed printed slip is a true copy, was published for four successive weeks, towit: Four times in the daily edition of the Chicago Republican, a newspaper published in the city of Chicago, and of general circulation throughout Cook County and the State of Illinois; and that the date of the first paper containing the same was the second day of September, 1869, and that the date of the last paper containing the same was the twenty-third day of September, A. D. 1869, and that we have received $6.50 for publishing the same.

Dated at Chicago, this 25th day of October, 1869.

L. W. POWELL, Publisher.

At the return term of the writ the cause was continued, as also at the October term following; but at the next succeeding term of the court, which began on the first of November, 1869, the default of the defendants first being entered, judgment was rendered in favor of the plaintiff for $238.65, and costs. To reverse this judgment the defendants appeal.

Messrs. HITCHCOCK, DUPEE & EVARTS, for the appellants.

Messrs. DENT & BLACK, for the appellee.

Opinion of the Court.

Mr. JUSTICE THORNTON delivered the opinion of the Court:

In this case the judgment was set aside, and a rehearing granted by the court, upon its own motion.

The objection, that sixty days did not intervene between the first insertion of the publication of notice and the first term of the court, is not well taken. In the computation of the time, in such case, the rule established is to exclude the day of the first insertion, and include the first day of the term. By this rule, sixty days did intervene. Vairin v. Edmonson, 5 Gilm.

270.

The recital in the notice of publication of a date to the writ of attachment subsequent to the return term, is not a fatal defect. Independent of this recital, the notice informed the debtor of the attachment, against whose estate, for what sum, and before what court it was pending, and that, unless he appeared at the court house in Chicago at a fixed time, and plead, judgment would be given against him. The statute was fully complied with, and the party could know from the notice when and where to appear and defend the attachment. He could not have been misled by the mistaken and unnecessary date.

The last objection is, that the judgment exceeds the sum stated in the affidavit and subsequently accruing interest. There was no other jurisdiction obtained in the case, except by levying the attachment and publishing the notice. The excess is conceded. The cases of Rowley v. Berrian, 12 Ill. 202; Hichins v. Lyon, 35 Ill. 150; and Hobson v. Emporium Co., 42 Ill. 306, hold that this is error.

We can not accede to the proposition urged by appellec, that appellants waived this error by coming into court after judg ment, though at the same term, and praying an appeal. If the exercise of the right which the law gave him to correct the error by appealing to this court, is to be deemed a waiver of the error in this case, we are unable to see why it would not in every other.

The judgment of the court below must be reversed, and the cause remanded. Judgment reversed.

Syllabus. Opinion of the Court.

LEVI GLADFELDER et al.

V.

T. JUDSON HALE.

1. EJECTMENT -contract of sale no defense. When a plaintiff in ejectment shows a legal title in himself, the defendant can not defeat a recovery by showing that the plaintiff had brought suit upon a note given to him by one who had contracted to purchase the land of him.

APPEAL from the Circuit Court of Knox County; the Hon. ARTHUR A. SMITH, Judge, presiding.

This was an action of ejectment brought by T. Judson Hale against Levy Gladfelder and others, in the Knox Circuit Court to recover the S. E. 14. 12 N. 4 E. The facts not stated in the opinion are to be found reported in 52 Ill. 93.

Messrs. GARRISON, SANFORD & ANDERSON, for the appellants.

Mr. LEANDER DOUGLASS, for the appellee.

Per CURIAM: This case has been already before this court, and is reported in 52 Ills. 93, where the facts are stated and all the questions decided. It is there held that the plaintiff was entitled to recover, and the only new evidence offered on the last trial was the record of a suit brought by Hale against Snickard to recover the purchase money due on the contract of sale. It is said this was an affirmance of that contract, and takes from Hale the right to bring ejectment. We are utterly unable to see what bearing this evidence has upon that question. Hale proved the legal title in himself, and there was no connection between the defendants and Snickard. The judgment is in conformity with the opinion given when the case was here before, and is affirmed for the reasons then given.

Judgment affirmed.

Syllabus. Opinion of the Court.

JOHN P. WHITE et al.

v.

FERDINAND W. HERRMAN.

1. EVIDENCE-secondary-best must be produced. Where the obligors in a written instrument obtained its possession, refused to deliver the same to the obligee, but gave a copy thereof and destroyed the original, and when sued denied the execution of the contract declared on in a plea verified by affidavit, it was held that the copy, when accepted as such, was, as between the parties, of equal authenticity with the original.

2. And when it appeared that such copy was left with plaintiff's attorney for suit, it was held error in the court to admit in evidence a copy of it made by plaintiff's attorney, upon the testimony of plaintiff that it was a copy of the original as nearly as he could recollect. The copy given by defendants was the next best evidence to the original, and should have been produced or its non-production explained.

3. EVIDENCE-proof of value. In a suit to recover damages for a failure to convey title when only a small sum was paid, the preponderance of the testimony showed that the land was worth no more than was agreed to be paid, but the plaintiff showed, without objection, that other lots in an adjoining tract had sold much higher by the front foot. This proof did not disclose the terms of the sale, the number of lots sold, or whether the purchases were bona fide: Held, that such evidence was too vague and unsatisfactory to furnish a proper indication of the value of eighty acres sold in a body.

APPEAL from the Superior Court of Cook County; the Hon. WILLIAM A. PORTER, Judge, presiding.

Mr. C. H. WILLETT, for the appellants.

Mr. H. B. HURD & Mr. JOHN W. KRAMER, and INGWELL OLESON, for the appellee.

Mr. CHIEF JUSTICE LAWRENCE delivered the opinion of the Court:

White and Henderson, the appellants, who were real estate agents in Chicago, on the 10th of September, 1868, sold to

Opinion of the Court.

Herrman, the appellee, eighty acres of land, situated near the city, and gave him a contract signed by them as the vendors. They annexed to their signature the word agents," but the contract did not disclose the name of their principal, and, by its terms, made them personally liable. The purchaser paid in hand only one hundred dollars. The residue of the first payment was to be made on delivery of abstract of title and deed. On the 13th of September, Herrman called at the office of White & Henderson to inquire as to the abstract. One of the firm then asked him for the contract in order to take it to Hardin, the owner of the land, and procure his written ratification. The contract was surrendered for that purpose to White, who went out of the office and in a few minutes returned, saying the owner would not ratify the sale. He refused to give back the original contract to Herrman, but gave him a copy. Herrman brought suit against White & Henderson for refusing to convey, and recovered a verdict and judgment for $5,100, from which they have prosecuted this appeal.

On the trial the plaintiff was placed upon the stand and asked whether the written instrument attached to the declara

tion was a copy of the original contract. He answered it was, as nearly as he could recollect. It appeared by a further examination that the copy made by White from the original contract and delivered to plaintiff, had been delivered by the latter to his then legal adviser, and, so far as appears, was still in his hands. He was not summoned, or, at least, did not appear. The execution of the contract had been denied by the defendants in a plea verified by affidavit. Under these circumstances, the court admitted in evidence the instrument attached to the declaration. In this, we think, there was error. The instrument given by White to the plaintiff as a copy or duplicate of the original contract, and accepted by the plaintiff as such, was, as between these parties, of equal authenticity with the original, and was within the power of the plaintiff. Next to the original it was the best evidence, and should have been produced, or its non-production should have been