or offer to pay to the holder of such certificate, the amount expressed
therein, and the amount paid for subsequent taxes, if any. Durfee et al.
v. Murray et al.,
2. Setting aside-Burden of proof.—In a proceeding to set aside a
tax sale on the ground of a levy for an illegal purpose, the burden of proof
is upon the complainant to sustain the allegation of an illegal levy.
Gage v. Busse et al.,
3. Setting aside-Evidence.-The transcript of proceedings in county
court upon judgment for delinquent taxes, where the judgment does not
show that the illegal items complained of were included in the city tax,
or that complainants appeared and objected, is insufficient to sustain the
the allegation in complainants' bill of an illegal levy. A copy of an
opinion of the Supreme Court in a case between other parties relating to
the same levy, will not aid complainants in proving the averments of
their bill. Gage v. Busse et al.,
433
TENANT IN COMMON.-See LANDLORD AND TENANT.
TENANCY.-See LANDLORD AND TENANT.
TIME CONTRACTS.-See CONTRACTS.
TIPPLING-HOUSE.-See DRAM SHOPS.
1. Proof of-Title to land cannot be proved by general reputation as
to the ownership. Munford v. Miller,
62
2. Vested. In condemnation of land for public use, no title vests in
the party condemning until possession is taken, the land appropriated to
the use intended, and the condemnation money paid to the owner. Ber-
eridge et al. v. West Chicago Park Com'rs,
460
1. Definition.-To constitute a tort, two things must concur, viz: act-
ual or legal damage to the plaintiff, and a wrongful act committed by the
defendant. Wright et al. v. C. & N. W. R. R. Co.,
1. Exemplary.-In actions of trespass against two or more, there can
be but one assessment of damages, and it must be for the same amount
against all who are found guilty. If a plaintiff in such action makes a
case of exemplary damages against one of two defendants, and not
against another, he may dismiss as to the latter, and have his recovery
against the former. Pardridge et al. v. Brady,
639
GENERALLY.
2. Ab initio.-Where levy of an attachment writ is made in an
illegal or unauthorized manner, the sheriff and plaintiffs in attachment
are liable as trespassers ab initio for any subsequent disposition they may
make of the property seized under the attachment proceedings. Culver
v. Rumsey,
422
3. Killing trespassing animals.-The right of a person to protect
his property from the unlawful attacks of animals may be carried to the
extent that he will be justified in killing the trespasser, provided the
relative value of his own property and of the animal trespassing be not
disproportionate, and he exercises the right in a reasonable manner, and
he may so act when circumstances are such as indicate an apparent
danger that his property will be destroyed unless the aggressor is killed.
He would, however, not be justified in killing a valuable animal found
destroying property of comparatively little value. Anderson v. Smith,
RATIFICATION.
4. Not as to exemplary damages.-While a subsequent ratification
of a trespass by one who was not present and did not authorize it, will
make him answerable for damages to the extent of the real injury, such
ratification does not authorize the infliction of exemplary damages upon
him. Pardridge et al. v. Brady,
TRIAL OF RIGHT OF PROPERTY.
GENERALLY.
1. Burden of proof.—In a trial of right of property, the burden of
proof is upon the claimant to show affirmatively that he is the owner of
the property. Hansen v. Dennison et al.,
2. Notice-Waiver.-A notice by a claimant, of trial of right of prop-
erty, where no trial is had, is not an admission of the validity of the
judgment, or waiver of irregularities in antecedent proceedings, that will
avail in another or subsequent suit. Ledford et al. v. Weber,
1. Enforcement-Credits to trustee.-In a proceeding to compel a
trustee to perform a trust and for a division of the proceeds of the trust
property, the trustee is entitled to credit for sums paid out to secure the
title to the trust property. Wagenseller et al. v. Prettyman et al., 192
TRUSTEE.
2. Compensation-Not a vested interest.—The right of trustee to re-
tain a certain per cent. of the trust fund as compensation for his services,
gives him no vested interest in the trust fund, which will entitle him or
his personal representatives to retain the fund after a breach of his trus-
tee's bond. Lee v. Pennington et al.,
247
1. Suit upon bond.-A bond made to the "Board of Trustees of Town-
VARIANCE.
GENERALLY. Continued.
ship No. 5," etc., may be sued on in the name of the "Trustees of
Schools of Township No. 5, etc., they being the same corporation, and
the objection that there is a variance between the instrument sued on,
and the offered in evidence has no force. Trustees of Schools v. Rodg-
VESTED INTEREST.-See TRUSTS.
WAIVER.-See TRIAL OF RIGHT OF PROPERTY.
GENERALLY.
1. Note with cognovit.―The giving of a note with cognovit, after the
causes of action alleged in the set-off have accrued, is a waiver of the
right to plead a set-off as to them, in an action upon the note. Borchsen-
ius v. Canutson,
2. Stipulation.-A stipulation that certain suits shall abide the de-
termination of a specified cause pending in circuit court, is not waived
by an agreement that the latter cause may be continued until the de-
termination of another suit pending in a higher court on appeal. Mc.
Kinley v. Wil. Star Mining Co.,
3. By answer in chancery.-The rule that a defendant in chancery,
by answering the bill, waives his right to object to the jurisdiction, does
not apply in cases where the jurisdiction is dependent upon a discovery
sought by the bill, and the discovery fails. U. S. Ins. Co. et al. v.
Cent. Nat. Bank et al.,
426
4. Replication.-A defendant objecting to trial before issue joined,
because of want of a replication, does not waive such objection by after-
wards proceeding to trial. Culver et al. v. Uthe,
WATER-COURSES.
1. Damages for diversion of surface-water.-Where the owner of
the superior heritage collects the surface-water upon his own land by
artificial means, and discharges it upon the servient estate in an unnat-
ural quantity or manner, the owner of the servient estate is entitled to
recover nominal damages, at least, upon proof of the wrongful act, and
if he shows actual damages, he is entitled to recover therefor. Mellor v.
Pilgrim,
306
2. Diversion of surface-water.-A party purchasing land over which
surface-water naturally 'flows from that of a co-terminous proprietor,
takes it with the burden of receivir; such surface-water, and cannot im-
pede or stop such natural drainage o the injury of the superior heritage.
On the other hand, the owner of th superior heritage cannot, by any act
of his, acquire the right to collect the surface-water upon his land by
artificial channels, and thus flow his neighbor's land without his consent.
Mellor v. Pilgrim,
WIDOW'S AWARD.-See ADMINISTRATION OF ESTATES.
1. Amending return on.-In a collateral issue in the circuit court
as upon replevin for goods levied upon, it is error to allow an amend-
ment of the return upon the summons in the original suit before the jus-
tice, upon which judgment had been rendered. Ledford et al. v.
Weber,
87
2. Service. A summons issued by a justice must be served at least
three days before the day of trial; and where the return of the
constable showed a service only two days before trial, the justice had no
jurisdiction, and his judgment was absolutely void. Ledford et al. v.
Weber,
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