Opinion of the Court.

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

Messrs. BRANDT & HOFFMANN, for the appellant.

Messrs. E. & A. VAN BUREN, for the appellee.

Mr. JUSTICE SCHOLFIELD delivered the opinion of the Court:

This was an action of trespass, by appellee, against appellant, for assault and battery.

Appellant pleaded, first, not guilty; second, son assault demesne; third, that he was the keeper of a public house, and appellee came therein, and made a loud noise and disturbance, and annoyed the guests, etc.; that appellant requested her to desist, but she refused, and appellant gently removed her, etc.

It was stipulated that all evidence admissible under any proper special replications to the second and third pleas might be given in evidence by appellee, without specially replying to those pleas.

The jury returned a verdict in favor of appellee, assessing her damages at $250, upon which the court, after overruling a motion for a new trial, gave judgment.

In the conflicting state of the evidence, it will be unnecessary to spend much time in considering the question whether the evidence sustains the verdict.

Appellant was occupying the upper rooms of a house on Canal street, in Chicago, as a hotel, and a room therein, on the ground-floor, as a bar-room. Appellee's husband occupied a store-room on the same floor, between which and appellant's bar-room was a common hall, accessible by doors from each room.

On the 4th of July, 1874, appellee's children, together with others, were playing in this hall, and were driven out by appellant. Whether he inflicted violence on them or not, is uncertain. He says he did not. They went crying, how

Opinion of the Court.

ever, to their mother, appellee, saying he had slapped them, and she became angry, and, no doubt, was somewhat abusive and insulting to him. That he put her out of his bar-room violently, is not disputed. She swears he struck her twice with his fist-the last time, knocking out two of her teeth, bruising her face and prostrating her, in an insensible condition, on the steps of a stairway in the hall. She is corroborated, as to his striking her twice with his fist, by another lady who witnessed a part of their difficulty, and also by one of appellant's witnesses, August Deege. Appellant's denial of using his fist is not very satisfactory. He says he gave her a push, but don't know whether he struck her in the face or not, thus, by implication, admitting a striking.

Appellee was considerably injured, and we are unable to say, from the evidence, appellant used no more force than was reasonably necessary, even if we shall concede he was justified in using force at all. We do not feel warranted in disturbing the judgment, either on the ground that the jury were actuated by passion or prejudice, or that they misapprehended the effect of the evidence.

Appellant asked the court to give the following instructions, which were refused, and their refusal is assigned for

error:

"1. The jury are instructed that if they believe, from the evidence, that, upon the day mentioned in the declaration, the plaintiff, Burgheim, came upon the premises of the defendant in an excited and disorderly manner, and, while there, used indecent language, and finally struck the defendant, Abt, in the face, then the defendant was legally authorized to eject the plaintiff from his premises, and was justified in using all the force necessary in putting the plaintiff out of his house, and was not guilty of an assault and battery in so doing.

2. The jury are instructed, as a matter of law, that if they believe, from the evidence, that the plaintiff forcibly entered the premises of the defendant, and assaulted and beat

Opinion of the Court.

the defendant, he was justified in opposing force to force, even to a wounding, or mayhem, in self-defense.

"3. The jury are instructed that if they believe, from the evidence, that the plaintiff, Burgheim, came upon the premises of the defendant in a defiant and noisy manner, and, while in defendant Abt's house, committed an assault and battery upon defendant, then the defendant was not obliged to request or ask plaintiff, Burgheim, to leave his house or premises, but had a legal right immediately to eject or put out the plaintiff, and use all necessary force for that purpose; then they should find the defendant not guilty."

These instructions were properly refused. Even if appellee did forcibly enter the premises of appellant, or, while therein, did use indecent and abusive language towards appellant, or did commit an assault and battery upon him, he was only justified in using such force as was reasonably necessary, under the circumstances, to defend himself and expel her from his premises; and if, in so doing, he used more force than was reasonably necessary under the circumstances, he was liable in the present action for the damages thereby done to appellee. The indispensable element of the reasonableness of the force allowed to repel a personal assault or an unlawful invasion of premises, is wholly omitted from each of the instructions as asked, and the second expressly recognizes the right of the party to use any amount of force, without any restrictions whatever.

We see no cause to disturb the judgment, and it is accordingly affirmed. Judgment affirmed.

Syllabus.

180 96 105a 2591

JOHN BARKER et al.

V.

THE INTERNATIONAL BANK OF CHICAGO.

1. DEED OF TRUST—right of purchaser. The owner of land executed a note payable to his own order, and indorsed it and delivered it to another, and at the same time executed a deed of trust to secure its payment, for $25,000. The indorsee turned the note over to a banking house as col. lateral security for $14,000, borrowed of them by him. Before the ma turity of the note, the party executing the deed of trust conveyed the land by general warranty deed to A, for the consideration of $103,000, $78,000 of which was paid by canceling that amount of the indebtedness of the indorsee of the $25,000 note, and $25,000 more of such indebtedness was to be canceled when said note was paid, and the lien of the deed of trust given to secure it was removed from the land. When the $25,000 note became due, another bank, with which the indorsee of the note had an account, advanced the $14,000 which he had borrowed on the note, and took it as collateral security for the amount so advanced and for all indebtedness due to it from such indorsee, which exceeded the whole amount of the note: Held, on a bill to foreclose the deed of trust, that even if the note was accommodation paper, yet, as it was treated by the maker, at the time he conveyed to A, as a valid incumbrance on the land, his grantee, A, was in no position to defeat the lien, and that the bank had the right to foreclose the deed of trust for the full amount of the note, as against A.

2. INTEREST-mode of computing. In rendering a decree for the amount due on a promissory note, it is error to compute interest on the note to the time of its maturity and add it to the principal, and then com pute interest on the gross amount from the maturity of the note to the time of rendering the decree. The proper mode of computing interest is, when there have been no payments, to compute from the time the note begins to draw interest up to the time of rendering the decree.

WRIT OF ERROR to the Circuit Court of Cook county; the Hon. E. S. WILLIAMS, Judge, presiding.

Messrs. HowE & RUSSELL, for the plaintiffs in error.

Messrs. ROSENTHAL & PENCE, for the defendant in error.

Opinion of the Court.

Mr. JUSTICE CRAIG delivered the opinion of the Court:

This was a bill, brought by The International Bank of Chicago, to foreclose a deed of trust on certain lands in Cook county.

The land originally belonged to Henry H. Walker, who, on the 16th day of January, 1868, made a promissory note. payable in eighteen months, to the order of himself, for $25,000, with interest at the rate of six per cent, which he indorsed and delivered to Samuel J. Walker.

On the same day he executed and delivered to Henry Waller, trustee, a trust deed, in which he conveyed the premises to him to secure the payment of the note, which was duly recorded on the 6th day of March, 1868.

The note secured by the trust deed, Samuel J. Walker at once turned over to Greenebaum & Foreman, bankers, to secure a loan of $14,000 which he obtained of that firm.

On the 15th day of April, 1868, Henry H. Walker conveyed the premises, by general warranty deed of conveyance, to James M. Walker, the consideration named in the deed being $103,000.

Samuel J. Walker was indebted to S. Sturges' Sons, and they were creditors of Barker & Haskell. This last conveyance, as between the Walkers and S. Sturges' Sons, seems to have been an absolute sale upon making the deed. Seventyeight thousand dollars of indebtedness from Samuel J. Walker to the Sturges' was canceled, and $25,000 more was to be canceled when the deed of trust for $25,000 should be paid and discharged, but as between the Sturges' and Barker & Haskell, the conveyance was to be regarded as security for debts due from the former to the latter.

After the $25,000 note became due, the International Bank advanced the $14,000 for which it was pledged to Greenebaum & Foreman, and took the note as security for the money so advanced, and also as security for all indebtedness due from Samuel J. Walker to the bank.

7-80TH ILL.