Opinion of the Court.

before the sale, to have been made by the trustee, that the sale so made was invalid. No title passed by the trustee's deed to the Kileys, and the jury should find for the defendants."

This instruction makes an entry upon the premises a condition precedent to be performed by the trustee, and it is so insisted here by the counsel for the defendant in error, on the authority entirely of the case of Roarty v. Mitchell, 7 Gray, 243.

We have examined that case, and it is like this in all essential particulars, but we cannot regard it as authority. There are no reasons given by the court for its conclusion, and the conclusion is not satisfactory. No similar case by any other court has been cited, and with our view of the law of the case, we cannot follow it for reasons which we will give.

It may be asked, of what use is an entry in any such case under our law which permits a sale of land by a party out of possession?

Next, what was the intention of the parties to this deed of trust as manifested by its terms? Certainly that the premises should be appropriated to the payment of the debt secured by the deed, and for that purpose the party of the second part could enter upon them and hold them as his own until the debt should be discharged. If that course was not deemed advisable, then the party of the second part could sell them. There is nothing in the deed requiring him, before he could sell, that he should enter. He is permitted to enter and take possession nothing more. The right to enter, and the right to sell, are distinct modes of enforcing payment of the debt, to either of which resort might be had. We see nothing in the deed requiring us to hold that the entry was a condition precedent.

The sale being regular, the title passed to the plaintiffs in error, and they should have recovered the premises in the action. The instruction of the court prevented a recovery, and it being erroneous, the judgment of the Circuit Court must be reversed and the cause remanded, with directions to award a new trial.

Judgment reversed.

Opinion of the Court.

NATHANIEL S. PIERCE

v.

JULIA ANN MILLAY, by her next friend, etc.

1. DAMAGES

vindictive in trespass cannot be given-malice being absent. In an action of trespass, for personal injuries, when the act complained of is without malice, vindictive damages cannot be given.

2. SAME-compensatory damages, only. In such case, full compensation for the pain and suffering, loss of time, expenses incurred for medical treatment, and compensation for the injury, if permanent, is all that should be given.

3. NEW TRIAL—excessive damages. In an action of trespass, when the right of recovery is limited to compensatory damages merely, and a verdict for vindictive damages is given, a new trial will be granted.

APPEAL from the Circuit Court of La Salle county.

The opinion states the case.

Messrs. DICKEY & RICE, for the appellant.

Messrs. BOWEN & SHEPHERD and O. C. GRAY, for the appellee.

Mr. JUSTICE BREESE delivered the opinion of the Court:

This was an action of trespass, assault and battery, brought in the La Salle Circuit Court, by Julia Ann Millay, against Nathaniel S. Pierce, and a verdict recovered of $4,000 damages.

To reverse this judgment, the defendant has appealed to this court, and has assigned various errors, among which is, that the damages are excessive.

It appears from the record, that the plaintiff below, at the time of the alleged trespass, was quite a child, not more than six years of age, and under the care of her mother, who lived in De Kalb county, separate from her husband, whose residence, if he had any, was at Leland, in La Salle county. It seems the plaintiff, with an elder sister, were sent by the rail

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Opinion of the Court.

road, on the passenger train, from De Kalb county to Leland, by George Bennett, their brother-in-law, who was living with their mother at Somanauk, in De Kalb county. They reached Leland about noon, and went to the house their father had occupied, and found no one there. They were seen by defendant, Pierce, who told them to go over to the other house, which is understood to be the house occupied by Susan Pierce, a daughter of the defendant, he (Pierce) having taken possession of the Millay house, under a sale of it to him by Millay. It was proved by Isaac Target, an uncle of plaintiff, that he was at the train when the girls arrived, and he asked them where they were going, and they said their mother had sent them over to Leland, and told them to go to Mrs. Pierce's, and while he was talking to the girls he saw Mrs. Pierce on the opposite side of the street, and pointed her out to the girls, and went with them at once across the street to where Mrs. Pierce was, and one of the girls spoke to her, but he did not hear what she said, but he heard Mrs. Pierce, in reply to them, say, "Very well, I am going down to the farm in the evening, with the buggy, and I will take you down with me when I go."

Van Scoy also testified, that, about the middle of the afternoon of the day the little girls arrived at Leland, they were at his house playing with his little girl, and when asked by him what they were doing there, they said they had come from Somanauk, and were going home with Mrs. Pierce.

It further appears, when the buggy was ready in the evening, the defendant put the children in it, with Mrs. Pierce, who drove it, and was a good driver, and while proceeding to the farm, the horse took fright, and ran away. The little girls were thrown out, and the plaintiff's right arm was fractured above the elbow. The child was properly cared for at the farm, and surgical attendance provided by defendant, and when able to be moved, she was taken to Leland.

Several medical gentlemen pronounced the injury a very serious one, while Dr. Hinkley, a surgeon of thirty-two years' practice, does not seem to have a fixed opinion that the injury will be permanent,-it may, or it may not be. He thinks the

Opinion of the Court.

removal of the child to Leland, did it no injury, and it was removed on his advice. That the difficulty of the joint was caused by want of proper care after the removal.

There was other testimony not of sufficient importance to be commented upon. The above are the prominent facts touching the alleged assault and violence, and it would seem to have consisted in the fact of placing the plaintiff in the buggy and driving off with her.

The question whether this was done by defendant without authority, was fairly left to the jury, and they have found he had no authority for so doing. It is apparent the act was done without violence, and there is no evidence that the plaintiff objected to the proceeding. The most that can be alleged of the act is, that it was a technical trespass.

In the absence of all malice, which was expressly disclaimed by appellee's counsel on the argument of this cause, we are at a loss to perceive on what grounds the jury rendered this large verdict of $4,000. No outrage was committed by appellant by placing the appellee, apparently with her consent, in the buggy, and the accident which befell was of a nature difficult to be guarded against, and though a painful injury was caused by it, no ground is perceived for the recovery of vindictive damages, as these appear to be, or smart money. Full compensation for the pain and suffering, loss of time, expenses incurred for surgical or medical attendance, and compensation for the injury, if permanent, is all that should be allowed.

On the latter point the testimony is by no means satisfactory, that the fracture will amount to a permanent injury. The appellee is young, and will, in all probability outgrow it, and her arm become useful. She stated in her testimony before the jury, that she could then use it.

There must have been something outside of the record, which had unconsciously to the jury an effect upon them to render this verdict, for there does not appear to be any thing in the record which can sustain it.

Malice being absent, the right is narrowed down to the recovery of mere compensatory damages. This being the

Syllabus.

extent, the judgment must be reversed and the cause remanded, that a new trial may be had.

Judgment reversed.

GEORGE HAMMER

v.

ASHBURY F. JOHNSON et al.

1. GRANTEE OF PARTY HOLDING EQUITABLE TITLE―liability for purchase money on prior sale. H., the owner of an undivided half of a mill, sold hie interest to C., taking in part payment C.'s notes, and gave him a bond for a deed, to be made upon payment. C. assigned the bond to J., the owner of the other half, and soon after the mill was burned. On a bill filed by H. against J., to compel him to pay C.'s notes, held, it appearing, by the proof, that J., in purchasing from C., had never assumed the payment of the notes, and that their payment was no part of the consideration for the assignment, he could not be held liable therefor.

2. Nor can J. be compelled to account to H. for any portion of the insurance money received by him upon the destruction of the mill, the policy having been procured by J. to protect his own interest.

3. But, as to the boiler and other machinery saved from the fire, complainant held a lien thereon, the same as when it constituted a part of the mill, and, as to such property, J. having sold the same, he is bound to account to H. for one-half of the proceeds thereof.

4. And, such sale having been made upon credit, and without the consent of H., the risk of collection is upon J. alone, and he must account to H. the same as if it had been made for cash.

WRIT OF ERROR to the Circuit Court of Peoria county; the Hon. AMOS L. MERRIMAN, Judge, presiding.

This was a bill in chancery, filed in the court below by the plaintiff in error against the defendant in error and others, to compel the defendant Johnson to pay certain notes made by one Chambers, and which had been received by plaintiff in part payment for the sale to Chambers of plaintiff's undivided half interest in a certain mill, the other half of which was owned by Johnson, who subsequently purchased Chambers' interest. The further facts in the case are given in the opinion.