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Opinion of the Court.

entitled to recover the actual damages which she suffered by reason of the taking of the goods, which would be the actual value of the goods (less what she owed the defendant on the mortgage, and what was paid on her debt to Storey), with interest at six per cent per annum on the same from the time of the taking to this time. And if the jury find, from the evidence, that he had no such feeling, but took her goods from malice and ill will only, then to the damages before mentioned may be added such smart money as the jury, from the evidence, may deem appropriate."

Appellant asked, but the court refused, this instruction:

"If you shall find, from the evidence, that, after defendant took the goods mentioned in the mortgage, they were taken from him by the sheriff of this county, under a writ issued out of the circuit court of this county, then the court instructs you that defendant is not liable for the goods so taken from him by the officer, after they were so taken, and it matters not what disposition was made of the goods after they were so taken out of the possession of defendant; he is only liable for what occurred while he had possession of the goods."

Notwithstanding the instruction given by the court was more favorable to appellant, in that it omits the essential element that his belief that his debt was not safe, or was insecure, had reasonable grounds to support it, than he was entitled to have it, (Furlong v. Cox, 77 Ill. 295,) still, we are of opinion that, under the evidence, the principle of the instruction, as asked, was a correct modification to that announced in the one given.

The evidence shows that appellee was present when the property was replevied and taken from the custody of Scanlan and placed in the possession of Storey. She accompanied the officer and aided in identifying the property, and there is evidence that, a day or so afterwards, she asked appellant, in the presence of a deputy sheriff, where the property was. and, upon being informed by him that he did not know, she re

Opinion of the Court.

plied: "Well, we know where the property is. You were ahead last night, and this man and I are ahead now."

Being thus a party to the retaking of the property, and aiding in appropriating it to the payment of her debt secured by the Storey mortgage, she ought not to be allowed to recover for any injury to the property, if any there was, after that retaking, nor for any loss consequent upon, and the necessary result of, a sale at public auction. The measure of the actual damages sustained by her is the difference between the market value of the property at the time it was taken, and its market value when retaken on the writ of replevin, together with such other actual loss to her business or otherwise, as she may have proved as the direct result of the taking.

For the error in refusing this instruction, the judgment is reversed and the cause remanded.

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SPECIAL ASSESSMENTS when can not be cured by a new one. Where a special assessment is held invalid on account of the ordinance under which it is made, it being illegal, the defect can not be cured or remedied by making a new assessment and report under the invalid ordinance.

APPEAL from the Superior Court of Cook county; the Hon. JOHN A. JAMESON, Judge, presiding.

Mr. M. F. TULEY, for the appellant.

Mr. DANIEL L. SHOREY, for the appellee.

Per CURIAM: In Wright v. The City of Chicago, 46 Ill. 44, it was held that the ordinance under which the assessment was made was unauthorized, because it did not appear that the

Syllabus.

board of public works had examined and reported to the council that there was real estate to be benefited by the proposed improvement, to the extent of the damages and costs. In the present proceeding the attempt was made, by a re-assessment, report and ordinance, to cure the objection to the ordinance held fatal in Wright v. The City, etc. supra. This was not competent.

It was held in Union Building Ass'n v. The City of Chicago, 61 Ill. 447, that "the effect of the statute authorizing a new assessment is, that the same shall be made in the same manner as is prescribed for the first assessment. It must, in all cases, be a de novo proceeding. Its departure from the precise mode of making the first assessment can be justified only so far as may be required by the circumstances of each case."

The foundation of the proceeding, here, was still the invalid. ordinance condemned in Wright v. The City, etc. It was not, nor could it be, cured by subsequent proceedings so as to make it a valid ordinance. If the council, when it was adopted, were not authorized to adopt it, by no new circumstances could there be a constructive relation back, investing them with a power which they did not then have. They might adopt a new ordinance, but a void ordinance could not be thus revived. The judgment is affirmed.

Judgment affirmed.

HARRIET N. MILLER et al.

V.

MARY WHITE.

An

1. PROCESS-how far a justification to an officer serving the same. officer armed with a writ of restitution issued by a justice of the peace in a forcible detainer suit, where the justice has jurisdiction, may enter the premises forcibly in order to execute the writ, and, having so entered, it is his duty to remove whatever chattels or property may be in the house, doing as little damage as possible to effect the purpose, and which will be the nat

Syllabus.

ural consequence of his duty to remove the same, and he will not be liable, unless he shall wantonly injure the chattel property.

2. WRIT OF RESTITUTION—chen a protection as against one not a party to the suit. Where judgment is rendered in favor of a landlord against his tenant for the possession of demised premises, in an action of forcible detainer, for holding over after the expiration of the term, and such tenant, by collusion, sublets the premises to another person, he remaining in the same as before, and the subletting is secret and unknown to the landlord at the time of the suit, and such sub-tenant is dispossessed, the latter will not be entitled to maintain an action against the landlord and officer in trespass for exccuting the writ of possession; and the same rule applies if the subletting is a mere pretense to hold the possession through another.

3. EVIDENCE-marriage may be shown by reputation. Proof of actual marriage is required in two cases only: in a prosecution for bigamy, and in an action for criminal conversation. In other cases the presumption of marriage may be indulged in from cohabitation, name, reputation, and other circumstances.

4. In trespass by a woman for breaking and entering her house, remov ing her goods and chattels, and dispossessing her under a writ of restitution, issued upon a judgment in a forcible detainer case against the lessee after the expiration of the term, the plaintiff claimed to be a sub-lessee, although the original tenant still continued in occupancy as before and furnished the supplies; on the trial the defendants offered to prove, by general reputation in the neighborhood, that the original tenant and the plaintiff, if not, in fact, married, were cohabiting on the premises as man and wife, which the court refused to admit: Held, that the court erred in rejecting the evidence.

5. FORCIBLE DETAINER―when sub-lessee bound by judgment to which he is no party. Where a tenant of a demised building secretly sublets the same to another person living with him, without the knowledge of the landlord, and both occupy the premises as before, and such sub-lessee, when examined as a witness on the trial of an action of forcible detainer against the original lessee, makes no claim to the property, the sub-tenant, after judg ment for possession, will not be allowed to interfere and set up her rights there for the first time, but will be bound by the judgment.

6. MEASURE OF DAMAGES-dispossessing sub-tenant under writ against tenant. A sub-lessee of a boarding house, having no right to the occupation of the premises after the expiration of the original lease, if expelled on process to which he is no party, is not entitled to damages arising from being deprived of his business of keeping boarders in the premises. He can, at most, recover only for the actual injury done to his property in removing the same from the premises.

7. TRESPASS-expulsion under writ against another. If one not a party to an action of forcible detainer against a tenant is expelled under a writ of restitution, and such party is not, in fact, a sub-tenant, but was occupying

Opinion of the Court.

the premises with the tenant, or for him, or under his lease, then such party can not recover in trespass for being dispossessed, when the court issuing the writ had jurisdiction.

APPEAL from the Superior Court of Cook county; the Hon. JOSEPH E. GARY, Judge, presiding.

Messrs. Wood & LOOMIS, for the appellants.

Mr. M. D. BROWN, for the appellee.

Mr. JUSTICE BREESE delivered the opinion of the Court:

This was trespass quare clausum fregit, brought to the April term, 1875, of the Superior Court of Cook county, by Mary White, plaintiff, and against Harriet N. Miller and Frank A. Draffin, defendants.

The declaration contained one count, in which it was charged that on or about the last day of June, 1871, the defendants, with force and arms, broke and entered a certain dwelling house in the possession and occupancy of the plaintiff, situate in the county of Cook, and then and there made a great noise and disturbance therein, and stayed and continued therein, making such noise, etc., for one day, and then and there forced and broke open, broke to pieces and damaged divers, to-wit: two windows of and belonging to said house, with its appurtenances, and broke to pieces and damaged and spoiled divers locks, staples, etc., belonging to said windows, of great value, etc.; and, also, on the same day, with force and arms, seized and laid hold and took divers goods and chattels, to-wit: two easy chairs, one sofa, etc. (describing all the articles), and a large lot of other household furniture, and books and personal property, "in and at said dwelling house of the said plaintiff, there being found and being in said dwelling house, and being of great value, to-wit: of the value, etc., and carried away same, and threw and cast the same down to and upon the sidewalk and the street in front and adjoining said dwelling, and then and there broke, damaged and injured, and bruised and broke to pieces said goods and chattels and furniture; by means of

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