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mitted by the wife, during marriage, as for slander, assault, etc., or for any forfeiture under a penal statute, they must be jointly sued; but that they cannot be jointly sued for slander by both. 1 Chitty Pl. 92. From this rule, and it seems to be fully supported by authority, if the jury found in this case that the wife spoke the words, they were compelled under the issue and the law to find a verdict against both defendants, they being husband and wife. Nor do we see that the verdict is defective, because it fails to state that they found appellants guilty in manner and form as alleged in the declaration. This would, no doubt, have been strictly formal, but such was the obvious meaning of their finding. It was, we think, clearly responsive to the issue.

As to the question of the credibility of witnesses, that was for the determination of the jury. In the conflict of evidence, whether real or only apparent, it was for them to give weight to such portions as they found to be worthy of belief. In this case we see no reason for disturbing the verdict, because it is not sustained by the evidence. Nor can we say that the damages found were excessive. That was a question for the finding of the jury, and will not be disturbed, unless the damages are palpably excessive, or there was manifest prejudice, or other misconduct of the jury. We are, after a careful examination of this entire record, unable to perceive any error for which the judgment of the court below should be reversed, and it must therefore be affirmed.

Judgment affirmed.

THOMAS J. NICKLE

V.
ASA S. WILLIAMSON.

VERDICT — insufficiency of evidence. To support á verdict in an action for unsoundness of a horse, there must be proof of a warranty, express or implied, or proof of the existence of some disease known to the seller, and unknown to the purchaser, at the time of sale.

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APPEAL from the Circuit Court of Iroquois county; the Hon. CHARLES R. STARR, Judge, presiding.

The opinion states the case.

Messrs. BLADES & Kay, for the appellant.

To support an action for unsoundness of a horse there must be proof of a warranty, express or implied. Ender v. Scott, 11 III. 35; Adams v. Johnson, 15 id. 345; Hawkins v. Berry, 5 Gilm. 36; Misner et al. v. Granger, 4 id. 69; 1 Smith’s L. Cas. 5 Am. ed., top page 242, et seq. ; 1 Parsons on Cont., 5th ed. 576, 577; Hilliard on Sales, 257, 8 5; Story on Sales, $ 352.

Messrs. FLETCHER & KINNEY, for the appellee.

Mr. JUSTICE BREESE delivered the opinion of the Court:

We do not deem the evidence sufficient to sustain this verdict. There is no proof of a warranty express or implied, and no proof of any disease known to the seller, which he did not communicate to the purchaser. It is quite clear, that the animal was sold as an unsound animal, for she was sold on credit at a price far below her value had she been sound.

The weight of evidence greatly preponderates in favor of the appellant, and he should have had the verdict.

When told by Wallace when he was called on by appellee, to sign a note with him for the price of the mare, that he was “bit,” he replied, “ if he was he would have to stand it.” How natural it would have been for him, on that occasion, to have replied, he had a warranty, if the fact was so.

The evidence is by no means clear, that the mare is seriously diseased, though sold as one not perfectly sound. It would seem the mucous membrane of one or both nostrils was disordered in some way, but no one witness testified it was incurable. But we place the case on the ground, that the evidence fails to establish a warranty, and that it goes far to establish

4-44T: ILL.

Syllabus.

Statement of the case.

Opinion of the Court.

the fact, from the smallness of the price, that she was sold and purchased as an animal not perfectly sound.

The judgment must be reversed and the cause remanded.

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EJECTMENT - conveyance by plaintif pending suit. Under our statute, a conveyance of plaintiff's title to a third person, pending suit, does not defeat his right of recovery. In such case the recovery in ejectment inures to the benefit of the grantee of the plaintiff.

APPEAL from the Circuit Court of Cook county; the Hon. E. S. WILLIAMS, Judge, presiding.

On the 9th of April, 1855, Royal A. B. Mills commenced an action in the Circuit Court of Cook county, against Henry Graves, for the recovery of a tract of land in the city of Chicago.

On the trial of the case before the court - a jury having been waived — Graves offered to prove that on the 2d of April, 1861, after the commencement of the suit, the plaintiff, Mills, conveyed all his title in the premises to one Henry L. Rucker. To this the plaintiff's counsel objected, but the court overruled the objection, admitted the proof, and gave judgment for defendant; to reverse which the plaintiff prosecutes an appeal to this court.

Mr. J. S. PAGE, for the appellant.

Mr. J. L. STARK, for the appellee.

Mr. JUSTICE LAWRENCE delivered the opinion of the Court:

The only question presented by the argument in this case is, whether, in an action of ejectment, a conveyance to a third

Opinion of the Court.

person, by the plaintiff, pending the suit, will defeat the action. The authorities cited are contradictory. In Cresap': Lessee v. Hutton, 9 Gill. 269; Cheeny v. Chceny, 26 Verm. 606, and Alden v. Grove, 18 Penn. 377, it is held that the action is defeated. A contrary rule is laid down in Jackson v. Leggett, 7 Wend. 377; Jackson v. Jeffries, 1 A. K. Marsh. 90, and Woods v. McGuin, 21 Ga. 582. Our own statute furnishes, however, the means of determining this question.

Section 19 of the ejectment statute, provides that "it shall not be necessary for the plaintiff to prove an actual entry under title, nor the actual receipt of any of the profits of the premises demanded; but it shall be sufficient for him to show a right to the possession of such premises at the time of the commencement of the suit, as heir, devisee, purchaser, or otherwise.” This is equivalent to saying that if the plaintiff had a title at the commencement of the suit, he shall recover, as the legislature had already provided in the third section, that if he had none at the commencement he should not recover. The state of the title at the commencement of the suit is made the criterion for either success or defeat. For this there was good reason. It has been the constant policy of this State to promote the easy sale and conveyance of land. To this end it was enacted at an early day, that land might be conveyed though adversely held. The action of ejectment is with us the only common law action for the determination of titles. Hence the statute gives each party a right to one new trial as a matter of right, and another in the discretion of the court. It thus often happens that a case remains for years in the courts before reaching a final determination. It can not have been the intention of the legislature to prevent the conveyance of lands during the long period through which the plaintiff in ejectment may often be kept in the courts, although the owner of a clear paramount title; and this may be asserted with the more confidence in view of our short statutes of limitation, under whose operation the grantee of a plaintiff in ejectment, or a purchaser under judgment and execution against the plaintiff, might be often barred from prosecuting a new suit. Neither can we dis

Opinion of the Court.

cover any practical objection to allowing a plaintiff in ejectment to recover, notwithstanding a conveyance pending the suit. The recovery would be under the title upon which the suit was brought, and would practically inure to the benefit of his grantee. To allow the recovery would also be in strict conformity to the issue made by the pleadings.

Counsel for the defendant in error urge that the 25th section of the statute of ejectment applies to this case. That section is as follows:

“If the right or title of a plaintiff in ejectment expire after the commencement of the suit, but before trial, the verdict shall be returned according to the fact, and judgment shall be entered that he recover his damages by reason of the withholding of the premises by the defendant, to be assessed; and that, as to the premises claimed, the defendant go thereof without a day.”

We understand this section as intended to apply to cases where the plaintiff claims an estate for years or for the life of another. Such an estate may "expire” pending the suit, by the simple lapse of time, and in such cases there should, of course, be no judgment for recovery of the possession because there is no person entitled to the possession under the title upon which the suit was commenced. But, where the estate of the plaintiff has merely been transferred to another, it cannot, in strictness, be said to have expired, and, unlike the other case, there is a person in existence to whose benefit a recovery would inure as the owner of the title on which the suit was commenced.

In our judgment, the ends of justice will be promoted by giving to the statute such a construction as will allow a recovery, notwithstanding a conveyance. The judgment must be reversed.

Judgment reversed.

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