we can not consider the printers answerable for these damages."

No notice of this volume could be complete without a reference to the large number of cases whose value the industry and learning of the editor has increased an hundred fold. There are eight cases to which notes have been added so complete as to make this volume a digest of the subjects on which they treat. Any one who will examine Mr. Proffatt's annotations to the case of Dickenson v. Barber, 9 Mass. 225, concerning opinion evidence; to Com. v. Neal, 10 Mass. 152, as to a husband's liability for the torts of his wife; to Emerson v. Brigham, Id. 197, as to warranties and the action for deceit; to Homer v. Wallis, 11 Mass. 309, upon the question of the comparison of handwriting; to Selleck v. French, 1 Conn. 32, on the subject of interest; to Yates v. Lansing, supra; to Jones v. Crittenden, 1 Car. Law Repos. as to the constitutionality of "stay laws," and to Chardon v. Oliphant, 3 Brevard, 572, the power of a partner after dissolution upon of the firm, will find sufficient to satisfy him of the accuracy of this statement. Notes less lengthy, but hardly less valuable, are appended to many other cases, viz: Porter v. Hill, 9 Mass. 34, as to the inability of a joint tenant to convey his interest in the joint estate by metes and bounds; Bearce v. Barstow, 9 Id. 45, as to usury; Catlin v. Ware, Id. 218, as to a wife's deed; Stackpole v. Arnold, 11 Mass, 27, as to oral evidence to vary writings; Long v. Calhoun, Id. 97, concerning signatures by agents; Phillips Academy v. Davis, supra; Peck v. Smith, 1 Conn. 103, as to highways; Barrett v. Smith, Id. 334, as to deeds; Sturtevant v. Ballard, 9 Johns. 337, as to sales of personalty where the vendor remains in possession; Jackson v. Matsdorf, 11 Johns. 91, concerning resulting trusts; White v. Com., 6 Binney, 179, as to indictments for statutory crimes; Dupy v. Wickwire, supra, and Milne v. Moreton, Id. 353, upon the effect of an assignment under a foreign law.

This undertaking, which we have, from the publication of the first volume, recommended to the careful attention of the profession, still continues to merit their confidence. No other work exists, nor is any other likely to appear for many years, in which the lawyer can obtain so complete a collection of the opinions of the American judges from the commence

BREESE, J., delivered the opinion of the court: This was a case of ejectment in the Kendall Circuit Court, brought by Hannah E. Watson, plaintiff, and against John Johnson, defendant. The summons was served August 24, 1869, and there was a trial by the court without a jury, by consent of parties, which resulted in a judgment for the plaintiff, that she was entitled to one-third of the premises described in the declaration as her reasonable dower during her natural life, as widow of Wm. F. Ludgens. A new trial was granted the defendant under the statute, and at the January term, 1871, the cause was again continued by the court, by consent on the general issue, which resulted in a judgment for the plaintiff that she was entitled to one undivided third part of all the land in the declaration mentioned as her reasonable dower, during her natural life, as the widow of Wm. F. Ludgens, "who in his life-time was her husband, and as such seized of said land."

Commissioners were appointed by the court to set-off to the plaintiff her dower, as found by metes and bounds, which was done, and their report made to the court. A motion for a new trial was denied, and judgment rendered for the plaintiff. To reverse this judgment the defendant prosecutes this writ of error, insisting the judgment is against the law and the evidence, and that a new trial should have been awarded.

This action was commenced by the defendant in error, under the authority of section 45, ch. 36, title"Ejectment." R. S. 1845, p. 210, and no point is made on the regularity of the proceedings in the ejectment case. In order to a proper understanding of the case, the prominent facts will be stated.

There is no controversy about the title held by Ludgens in his life-time to the premises in controversy. Holding the title, Ludgens and his wife, the defendant in error here, on August 2, 1859, executed and delivered to one John B. Sherman a mortgage with full covenants on these premises, to secure a note of the same date, which Ludgens had executed to Sherman. The deed provided in case of default in the payment of the money, Sherman or his attorney, after having advertised the sale sixty days in a newspaper published in Oswego, in Kendall County, might sell the premises at public vendue to the highest bidder, for cash, and execute conveyances therefor. This mortgage was duly acknowledged before a notary public of Kendall County, attested by his notarial seal, on the same second day of August, 1859, in which acknowledgment it is certified by the notary that Hannah E., wife of the said Win. F. Ludgens was examined separate and apart from her husband, and the contents and meaning of the deed fully explained to her, and she acknowledged that she executed the deed voluntarily and freely, and relinquished her dower to the said lands and tenements mentioned, without compulsion of her husband.

Default having been made in the payment of the note, Sherman, on July 3, 1863, executed a power of attorney to one Chambers, authorizing him to sell and convey the premises.

The stipulated notice of the sale was given, and the premises sold at the time and place specified, many persons being present, and the same were stricken off to one Lee, as the highest and best bidder, for the sum of six hundred and twenty dollars. Lee and wife, on July 10, 1863, conveyed the premises to Sherman, and the latter, by quit-claim deed, with a special warranty, conveyed the premises, October 14, 1863, to John Johnson, the plaintiff in error and defendant in the action of ejectment. Johnson, on July 17, 1864. by quit-claim deed, conveyed the north half of the same premises to John Nelson, against whom a similar action was brought and the same recovery had, and who prosecuted his writ of error to this court, and we have considered the cases together.

The point chiefly relied on by defendant in error to sustain this judgment, is the alleged fact that Lee was not the purchaser at this sale, but that one Hartwell was the purchaser, the premises having been stricken off to him.

There is testimony to this fact, but the proof is abundant that the sale was made, in all respects, in pursuance of the terms of the mortgage and Hartwell makes no complaint. and Lee and Chambers have both departed this life, and the real facts of the transaction can not now be fully explained. It is evident, however, from all that appears in the record, that the bid of Hartwell did not exceed the sum of $620, the amount paid by Lee. It is often the case, the bidder, at a public sale like this, transfers his bid to another and directs the deed to be made to such person, and, if there be no fraud in the transaction, and no loss to the mortgagee thereby, there can be no objection. But, if an objection, could it be urged against these defendants, the plaintiffs in error, who are remote purchasers

without any notice of any irregularity, and can it be set up, in an action of ejectment, to defeat their title?

This court said, in Cassell v. Ross, 33 Ill. 246, which was a bill in chancery, to set aside a sale made under a trust deed, by the terms of which the sale was to be made for cash, and a credit was given, that a purchaser, on discovering it was a trust fund, was bound to see that at least all. of the conditions of the trust deed, up to the execution of the trust deed to himself, were complied with and performed by the trustee; and, when he became a purchaser on time, he became a party to the violation of the condition upon which the sale alone could be made. Being chargeable with notice, he can not evade the effect of the irregularities attending the sale. With a remote purchaser it is believed to be different, but the immediate grantee, under the trustee's sale, must be held to see that all precedent conditions of the sale are complied with by the trustee. p. 259. In Reece v. Allen, 5 Gilm, 236, it was held the grantee of a trustee is not bound to show that the conditions of the trust deed have been complied with by the trustees. The deed conveys the legal title to the estate. And in Hamilton v. Lubuckee, 51 Ill. 415, the same doctrine was received, that a remote purchaser from one purchasing at a sale by a mortgagee, is not chargeable with notice of defects and irregularities attending the sale, but they must be brought home to his knowledge on a proper case made and sustained by proof. There is no evidence tending to show Johnson or Nelson was cognizant of this irregularity, and such irregularity should not avoid the sale-it would be voidable only on a proper case made.

But admitting this sale was made for the benefit of Sherman, the mortgagee, yet it can not be denied his deed by his attorney (Chambers) to Lee, vested the legal title to the estate in Lee. Legal title must prevail in an action of ejectment. If a legal title so acquired is challenged, it can not be investigated in a court of law, but a court of chancery must be invoked. The deed is not void, but voidable only, and a court of chancery may set it aside. Until this is done, it must at law prevail. It was held in Farrar v. Payne, 73 Ill. 82, the fact that a trustee is a purchaser through another at his own sale, will not render the sale void. It is only ground for setting aside the sale in equity, while in the trustee's hands, but not after its transfer to a bona fide purchaser without notice of the equity. Plaintiffs in error, on their purchase, went into possession of their respective portions of this tract of land, and made valuable improvements thereon. They were purchasers for a valuable consideration without notice of any irregularities in the sale, and the deeds executed to them conveyed to them the legal title.

If defendant in error has an equity growing out of or inherent in this transaction, a court of equity is open to her in which to establish it. By her deed to Sherman, she voluntarily relinquished her dower in these premises and we do not perceive how in this action, she can assert a right once relinquished. There may be equitabl

grounds on which she may proceed. If there has not been a foreclosure as she claims, she ought not to recover: she redeems her share. The grantees of the purchaser at the mortgage sale are in possession of the premises and no action of ejectment can be maintained against them. Under the rulings of this court, the mortgagee of lands is held in law the owner of the fee, having the jus in re as well as ad rem and entitled to all the rights and remedies, which the law gives such owner and he may after condition broken maintain ejectment against the mortgagor. Oldham v. Pfleger, 84 III. 102.

We are unable to find any ground on which this judgment can be supported, and it must be reversed and a new trial had, and for that purpose the cause is remanded. If the plaintiffs in error have been turned out of possession of their respective portions of this tract of land, as claimed by them, the circuit court will enter such order as may be necessary to restore each of them to the possession of their respective portions.

THE guarantor of collection of a note can not be sued until legal proceedings diligently pursued have failed to result in collection. That condition precedent is not answered by evidence of the maker's insolvency.

COOLEY, J., delivered the opinion of the court: This case having been brought to a hearing in the court below, on demurrer to two counts of the declaration, while an issue of fact upon other counts was pending, the court sustained the demurrer, and rendered final judgment on the whole record. This judgment was probably an inadvertence, but we have no alternative but to reverse it with costs, and remand the record for further proceedings.

There still remains on the record the question of law whether the court was right in sustaining the demurrer. The suit was brought on the guaranty by the defendant of the collection of a note made by one Keeler. The form of the guaranty is not given, but the allegation in the declaration is that the defendant, "for a valuable consideration to him in hand paid, by a guaranty in writing indorsed upon said note and signed by said defendant, did guarantee to said plaintiff the collection of said note." It is then averred that at the time the note became due and payable the said Keeler was, and ever since has been, " pecuniarily irresponsible and insolvent," by reason whereof the said note, "at

the time when the same became due and payable, was, and ever since has been, and now is uncollectable," and that the same was duly presented for payment and payment refused." The question presented on demurrer to these allegations is, whether the fact that the maker of the note was pecuniarily irresponsible and insolvent, excuses the neglect to take proceedings at law for collection; or, to state it in other words, whether the terms of the guaranty do not require proceedings at law to enforce the collection of the note as a condition precedent to a resort to the guarantor.

The cases on this subject are greatly at variance. In McDoal v. Yeomans, 8 Watts, 361, it was held that on a guaranty that a note is "collectable," it is not necessary for the guarantee to attempt collection by legal proceedings if the maker is insolvent. See, also, McClurg v. Fryer, 15 Penn. St. 293. This has always been the doctrine of the courts in Massachusetts. Sanford v. Allen, 1 Cush. 473, explaining Marsh v. Day, 18 Pick. 321. See Miles v. Linnell, 97 Mass. 298. And as to Maine, see Culligan v. Boardman, 29 Me. 79. In Wheeler v. Lewis, 11 Vt. 265, it is said that where a note is warranted "good and collectable," the holder is bound to resort to legal measures within a reasonable time, and to pursue them with common diligence, or show what is equivalent, the absolute insolvency of the maker of the note. To the same effect are Bull v. Bliss, 30 Vt. 127; Dana v. Conant, 30 Vt. 246. And see Thompson v. Armstrong, 1 Ill. 23; Stern v. Rockefaller, 29 Ohio N. S. 625. Cases in Connecticut, sometimes cited as supporting these, have no bearing, as they rest on peculiarities in the local law of indorsement. Perkins v. Catlin, 11 Conn. 213; Ranson v. Sherwood, 26 Conn. 437.

The New York cases, on the other hand, have always held that in fixing liability on such a guaranty, the only evidence that the note is uncollectable is the failure of legal proceedings, diligently pursued, to result in collection. Moably v. Riggs, 19 Johns. 69; Thomas v. Woods, 4 Cow. 173; Taylor v. Bullen, 6 Cow. 624; Morris v. Woodworth, 11 Wend. 100; White v. Case, 13 Wend. 543; Curtis v. Smallman, 14 Wend. 231; Loveland v. Shepard, 2 Hill, 139; Craig v. Parkis, 40 N. Y. 181. In Wisconsin the rule is the same. Day v. Elmore, 4 Wis. 190; Borden v. Gilbert, 13 Wis. 670; Dyer v. Gibson, 13 Wis. 557; French v. Marsh, 29 Wis. 649. The like rule seems to be recognized in Kentucky. Ely v. Bibb, 4 J. J. Marsh, 71. And in Texas, Shepard v. Shears, 35 Texas, 763. See, also, Peck v. Frink, 10 Iowa, 193.

The point has never been directly passed upon in this court; but in Dwight v. Williams, 4 McLean, 581, the Circuit Court of the United States for this circuit approved and applied the New York rule. We believe that rule to be reasonable, and to accord with the general understanding of parties when such guaranties are given. The undertaking that a note is collectable means that if proceedings for collection are diligently prosecuted at law, they shall result in collection. It does not mean that the maker of the note is responsible, but that the debt shall be collected if the proper steps are promptly taken for the purpose. It may be that an

THE plaintiff, purposing to sell certain horses by auction at Dublin, on the 26th of April, agreed with the defendant, a railway company, that the horses should be carried by rail to Dublin on the 24th of April, as the horses should be on view the day before the auction. The defendants failed to provide the necessary means of carriage for the horses on the 24th, whereupon the plaintiff took them by road to Dublin, having no other alternative if he wished to sell them at the auction contemplated. In consequence of the journey some of the horses were deteriorated in appearance, one of them was lamed, and those which were sold fetched less prices than would otherwise have been realized; but for some time previous the horses had been fed on soft food, and had they been in hard hunting condition they would not have been the worse of the journey. Held, that the injury to the horses was attributable to the default of the defendants, and not to the condition in which the horses were; and that damages awarded in consequence of the deterioration in the selling value of the horses were not too remote.

This action was brought to recover damages for breach of contract by the defendants, who had agreed to carry 27 horses by rail from Athboy to Dublin, on April 24, 1878, but only so carried 12 of said horses; the plaintiff averring that he had intended that the horses should be carried in order

to be sold by auction on April 27th, but that, by reason of the breach, he was obliged to send 15 by road, and thereby incurred great expense, and thereby also the horses were deteriorated in value and some of them rendered valueless.

Judgment went by default, and an inquiry to assess the damages was had before the Master and a jury.

It appeared from the evidence of the plaintiff that at the close of the hunting season he had 27 horses advertised for sale by auction, on April 26, 1878, at Sewell's horse repository. On April 22nd the plaintiff saw the defendants' station master at Navan, and told him that he required nine horse boxes to convey his horses to Dublin on the 24th, as he wanted them on the 27th at Sewell's. The station master said he would telegraph to Dublin and would have the boxes. The plaintiff subsequently received the following:-"Mem. Manager to carry horses for £10, at his own risk." The

plaintiff replied assenting, and inquiring if the boxes would be ready at Athboy; to which he received an answer that the station master would have the boxes, and that he (plaintiff) could send the horses by the 3.25 p. m. train on the following day (April 24th), and enclosing the conditions for signature. The plaintiff's steward deposed that he arrived with the horses at Athboy station at 2.30 p.m. on the 24th, but that there were only boxes to carry 12. He inquired from the station master why the boxes were not there, and whether there was any chance to get on in time for Dublin next morning, so as to have the horses on view at Sewell's. The station master could give no decided answer, but telegraphed to Dublin. No answer having been received, no further boxes having arrived, and the station master being unable to undertake to have such early on the next morning, the plaintiff's groom started for Dublin by road with 15 horses, the other 12 being sent on by rail. The distance ridden to Dublin was 24 miles, and it was proved that several of the horses were deteriorated in appearance in consequence of the journey, and one of them was lamed; and that some of thera were sold, but at prices less than they would have fetched but for their deteriorated appearance. It further appeared that the horses had recently been fed on soft food, and one of the plaintiff's witnesses stated that had the horses been in hard hunting condition they would not have been the worse of the journey.

The jury having found a verdict for £200 damages in respect of the laming and injury to the horses :

The Macdermot, Q.C. (C. F. Ferguson with him), on behalf of the defendants, moved that the verdict be set aside, and that judgment be entered for the plaintiff for nominal damages instead, on the ground that the damages in respect of which the verdict was had for £200 were too remote, and, if incurred, were attributable to the acts of the plaintiff and his servants.

Heron, Q.C. (J. N. Gerrard with him), contra. The following cases, were cited:-Hobbs and Wife v. L. & S. W. Ry. Co., L. R. 10 Q. B. 111; Collier and Wife v. D. W. & W. Ry. Co., 8 Ir. L. T. Rep. 24; Hadley v. Baxendale, 9 Ex. 341, 351; Elbinger Actien-Gesellschaft v. Armstrong, L. R. 9 Q. B. 473; Horne v. Mid. Ry. Co.. L. R. 7 C. P. 583, 591,8 ib. 136; Cory v. Thames Iron-works Co., L. R. 3. Q. B. 181; Simpson v. L. & N. W. Ry. Co., 1 Q. B. Div. 274; Le Blanch v. L. & N.W. Ry. Co., 1 C. P. Div. 286; Fletcher v. Tayleur, 17 C. B. 21; Mayne on Damages, 3rd Ed., 18, 39, et seq.

MAY, C. J.-The facts of this case are few and were not substantially matter of dispute between the parties. It appears that the plaintiff, who resides in the county of Meath, after the termination of the hunting season had a large number of hunters (27), which he was anxious to send up to Dublin to be sold by auction at a large sale of similar animals to be held at Sewell's, a well known auction mart, on Friday, 26th April. Some communications took place between the plaintiff and the agent of a railway company, which eventuated in an agreement by which the company agreed to

carry these 27 horses at the reduced rate of £10; it was settled that the horses should go on the afternoon of Wednesday, the 24th. The agents of the railway company were aware that the horses were intended for the auction, and it appeared that though the auction was to take place on Friday, yet the horses should be in the stable on Sewell's premises on Thursday, in order that they might be seen and examined by intending purchasers before the auction. The horses were brought to the station at Athboy by the plaintiff's servants on Wednesday about 2:30 P. M., 3:30 being the hour at which the train was to start. But it then appeared that the defendants' agents could not supply horse-boxes for more than 12 horses, nor could they undertake to furnish boxes for the other horses early on the next morning. The servants of the plaintiff under these circumstances took the 15 horses by road to Dublin, and the distance being about twenty-four miles, they did not arrive at Sewell's establishment until 10 o'clock P. M., on that day. The plaintiff gave evidence that several of the horses were deteriorated in appearance by the journey, and one of them was lame in consequence; that some of them were sold, but at a price less than they would have fetched had they presented the appearance which they would have borne but for the journey. It appeared that the plaintiff had no alternative but to send his horses by road to Dublin, if he wished to attain his object of selling them at this auction. The plaintiff sued the defendants for their breach of contract; the defendants let judgment go by default, and on an inquiry before the master to assess damages, the jury found a verdict for £200 damages. The defendants moved to reduce the damages to a nominal amount. It appeared in evidence that these horses-the hunting season having terminated about three weeks before the Wednesday in question-had been fed on soft food; and one of the plaintiff's witnesses had stated that had they been in hard hunting condition they would not have been the worse of the journey.

It was contended that the injury to the horses must be regarded as attributable to the soft condition in which they were in, not to any default of the defendants. But I do not think this argument a sound one, as the horses were not in a condition rendering them susceptible to injury in an extraordinary degree-it was rather that they were no longer in an exceptional state of condition, which perhaps had it continued would have enabled them to bear the journey with impunity. But, the defendants' counsel also contended that damages awarded in consequence of the deterioration in selling value of the horses were too remote, and could not be taken into consideration by the jury. Several cases were cited by counsel on both sides, as might have been expected from the nature of the question, which is one that has been very frequently the subject of discussion. The rule of law applicable to the case, it seems admitted, was laid down with substantial correctness in the oftencited case of Hadley v. Baxendale, in the following terms: "When two parties have made a contract, which one of them has broken, the damages

which the other party ought to receive in respect of such breach of contract, should be such as may fairly and reasonably be considered either arising naturally-i.e., according to the usual course of things, from such breach of contract itself, or, such as may reasonably be supposed to have been in the contemplation of both parties at the time they made the contract as the probable result of the breach of it." I think the damages in this case fall within both branches of the above definition. The horses were injured and deteriorated in value by the fatigue, which naturally and necessarily resulted from the journey which the defendants' default rendered necessary. This fatigue and consequent injury was the direct and immediate consequence of the defendants' breach of contract-not the effect of any accident, or collateral event over which the defendants had no control. So, also, I think the injury to the horses must be considered to have been within the contemplation of the parties, it being known to both that the horses were intended for sale on Friday, and for inspection on Thursday; and that it was certainly probable that horses starting at 4 in the afternoon to travel 24 miles in the same evening, would arrive late at night, somewhat worn and exhausted, and would not present the best appearance on the following day, The case of Hobbs v. London and Southwestern Railway Company, L. R. 10 Q. B. 111, cited by the defendants, resembled the case most closely. There the defendants, the railway company, conveyed the plaintiff and his wife and children, not to Hampton, according to their contract, but to Exeter, where they arrived at 12 o'clock at night. The plaintiff could not obtain any conveyance and was obliged with his family to walk from Exeter to Hampton-the night was wet, and the party did not arrive at home till 3 A. M. of the next morning. The plaintiff was held entitled to recover £8 as compensation for personal inconvenience, but not to a sum of £20 allowed by the jury on account of expenses of medical attendance on his wife, who caught a severe cold on the occasion. This latter damage was considered too remote, the wetness of the night and the consequent illness occasioned to the lady being considered as contingencies, but which could not have been foreseen, and did not follow naturally and immediately from the breach of contract. The deterioration of the horses in the present case, directly caused by the fatigue of the journey, seems to me to resemble the inconvenience which was allowed for in the case referred to. rather than the expenses occasioned by the illness. I do not think it necessary to examine in detail the other cases cited on both sides; it is admitted that the rules on the subject are vague and indeterminate, and each case must depend on its own circumstances. In the case now before the court I think the damages allowed for by the jury were connected with sufficient closeness and proximity with the breach of contract of the defendants, and the plaintiff is entitled to retain his verdict.

O'BRIEN, and FITZGERALD, JJ.,

concurred.