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Kellogg et al. v. Forsyth.

HENRY M. Kellogg and oTHERS V. ROBERT FORSYTH.

The statutes of Illinois require that a declaration in ejectment shall be served upon the actual occupant, and the practice of that State authorizes the appearance of the landlord and his defence of the suit, either in his own name

or that of the tenant with his consent.

And when a landlord has undertaken the defence of a suit in the name of the tenant with his consent, the tenant cannot interfere with the cause to his prejudice.

Therefore, when the defendant in ejectment in the court below died after judg ment, and his attorney and landlord, who had conducted the suit in the name and with the consent of the deceased, sued out a writ of error in the name of the heirs, gave bond for the prosecution of the writ and for costs, a motion to dismiss the writ will not be entertained, although the heirs of the deceased authorize the motion to dismiss.

It appears to the court that the attorney of the deceased defendant is a bona fide claimant of the land, and prosecuting the writ of error in good faith.

The motion to dismiss the writ of error is therefore overruled.

THIS was a branch of the three preceding cases, coming up from the same court.

Mr. Williams, counsel for the defendant in error, moved to dismiss the writ for the following reasons, viz:

That it is manifest by the record filed in this court in the said cause that the said writ of error was issued on the 15th day of July, 1859.

That the clerk's return thereto was filed with the clerk of this court on the 3d day of October, 1859.

That said return contains nothing but affidavits of the death, &c., of the original defendant, the writ of error, a bond to prosecute the same, a citation and acknowledgment of the service thereof.

That the detached record filed by the plaintiff, with the said return, was certified by the clerk of the Circuit Court on the 25th day of October, 1856, and is not attached to said return, or in any way referred to therein.

And therefore, he says, for said irregularities in the said proceedings patent on the face of the record of said cause, the said writ of error ought to be dismissed.

Kellogg et al. v. Forsyth.

See Rules, Nos. 8 and 9.

Mr. Justice CAMPBELL delivered the opinion of the court.

The defendant in error recovered a judgment in ejectment in the Circuit Court of the United States for the northern district of Illinois against William Kellogg, deceased, as tenant in possession of a parcel of land in that district. After the judgment, the defendant died. The attorney of the decedent, who was also his landlord, and who had conducted the suit on behalf and in the name of the tenant, with his consent, sued out a writ of error to this court in the name of the heirs of said Kellogg. The bond for the prosecution of the writ, and the stipulation for costs in this court, have been supplied by the said attorney. One of the heirs of Kellogg objects to the prosecution of the writ of error, and alleges, on behalf of himself and his coheirs, that it is prosecuted without authority, and that they have no desire that it should be maintained, and authorize the attorney of the defendant in error to move for its dismissal. It appears to the court that the attorney of the deceased defendant is a bona fide claimant of the land, and that he is prosecuting the writ of error in good faith. That he is responsible for the costs and damages that may arise from the use of the names of the plaintiffs in error. The statutes of Illinois require that the declaration in ejectment shall be served upon the actual occupant, and the practice of the courts of that State authorizes the appearance of the landlord, and his defence of the suit, either in his own name or that of the tenant, with his consent. Williams v. Brunton, 3 Gilman R., 600.

And when a landlord has undertaker the defence of a suit in the name of the tenant, with his consent, the tenant cannot interfere with the cause to his prejudice. Doe v. Franklin, 7 Taun., 9. We think it was competent to the landlord to use the names of the plaintiffs to prosecute his writ of error upon his engagement to bear all the costs and expenses of the suit. Should the judgment be reversed, and the cause remanded to the Circuit Court for further proceedings, he may apply in that

Richardson v. City of Boston.

court for leave to become defendant, instead of the heirs of the tenant.

Motion to dismiss overruled.

THOMAS RICHARDSON, PLAINTIFF IN ERROR, V. THE CITY OF BOSTON.

The decisions of this court in the cases of the City of Boston v. Lecraw, 17 How., 426, and Richardson v. City of Boston, 19 How., 263, referred to and explained. Indictments against the city of Boston, in 1848, for permitting unhealthy vapors and exhalations to arise in that part of the city which the sewer in question was erected to remedy, were admissible in evidence, on the part of the city, to show that the conduct of the city did not tend to oppression, and as part of the history of the case. An instruction of the court below was correct, viz: that a former verdict and judgment, though admitted in evidence, should have little or no weight on the decision of the case, because it was founded on erroneous instructions on the law.

So, also, an instruction was correct which told the jury that there was no evi dence in the case which would authorize them to find that the city of Boston had ever dedicated to the public use a public highway, town way, dock, or public way, between the wharves in question, for the access of boats and vessels between said wharves to high-water mark or the egress therefrom to the

sea.

These instructions were in conformity with the previous decisions of this court.

THIS case was brought up by writ of error from the Circuit Court of the United States for the district of Rhode Island.

It was an action for the continuance of an alleged nuisance from 13th September, 1850, to 15th April, 1852. It will hereafter appear why the first of these dates was named.

The nuisance charged is described in two preceding cases, viz: City of Boston v. Lecraw, 17 How., 426, and Richardson v. City of Boston, 19 How., 263. Without noticing at present the first-named case, it may be proper to give the history of the present one.

The action was brought by Richardson in the Circuit Court of Massachusetts to October term, 1850.

Richardson v. City of Boston.

1851, March. General issue pleaded, and special plea; plaintiff demurs to special plea.

1851, April. Plaintiff has leave to amend his declaration by adding two counts.

1851, May. A statement of facts submitted.

1851, October. Agreement of counsel that the case should be carried to the Supreme Court.

1852, May. Plaintiff has leave to amend declaration.

1852, October. Boston files petition to remove the case, because Mr. Justice Curtis had been counsel, and Judge Sprague was interested; removed to Rhode Island.

1853, June. Argued before Judge Pitman on the agreed statement of facts; verdict guilty; damages and costs, $2,026.87 up to 13th September, 1850; judgment on sixth count; motion for new trial; pending which, the case of Lecraw v. City of Boston was decided by this court, as reported in 17 How.; case continued by agreement.

1855, June. New trial granted; plaintiff amends writ and declaration by adding a count, which is the subject of comment by this court in the present opinion; verdict not guilty; plaintiff sues out writ of error, and brings the case up to this court to December term, 1855.

1856, December term of this court. Case tried, and reported in 19 How., 263; judgment reversed.

1857, November term of Circuit Court. Mandate from this court presented; new trial ordered.

1858, June term. Plaintiff amends writ and declaration by striking out the words constituting the ad damnum in said writ, as the same now stands, and inserting in lieu thereof the words following, viz: "ten thousand dollars."

By S. BARTLETT, his Attorney.

And now, by agreement of parties, and with the leave of the court here, plaintiff amends the several counts of his declaration by striking therefrom such parts thereof as claim damages for the injury to the ends of his wharves by material deposition near the same, by means of the structure complained of.

The case then went on to trial before Mr. Justice Clifford

Richardson v. City of Boston.

and Judge Pitman. Under the instructions which were given by the court, the jury found a verdict for the defendant, and the plaintiff again brought the case up to this court by a writ of error.

The bill of exception was very long, and included the record of the former case, together with a vast quantity of other matter. The instruction of the court, admitting this record in evidence, was as follows:

"That the record of the former verdict and judgment is admissible in evidence; but inasmuch as it appears that the verdict was found by the jury under an erroneous instruction given by the court, the judgment is entitled to very little weight upon the question of the right to recover in this case, and none whatever upon the question whether the supposed way or dock before described was duly laid out and established by the town of Boston, or the authorities thereof, pursuant to law, either as a public highway, town way, or public way, for the access of boats and vessels to high water, or the egress therefrom to the sea, as is alleged in the seventh count of the plaintiff's declaration."

By his Honor Judge Pitman.

The record above referred to was in a case decided by me upon an agreed statement of facts, which was excluded in this It was therein admitted by the defendant that the place between the said wharves was "an ancient public dock or highway." This fact, and the case having been submitted to Judge Sprague, and decided by him in favor of the plaintiff before the case was sent to the Rhode Island district, I was disposed to decide the same way, unless I saw it was manifestly erroneous. It was to be determined under the law of Massachusetts, with which I believed he was much better acquainted than myself. I did not, therefore, so critically examine the documents in the case, and their legal effect, as I have since done. Since the decision of the Supreme Court of the United States in the case of Lecraw v. City of Boston, I have considered the opinion erroneous which I then delivered, and the judgment as entitled to no weight for that reason as evidence to a jury, and therefore I excluded the judgment

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