Opinion of the Court. Syllabus.

too serious to justify the court to enforce the duty by mandamus without further legislation.

If the legislature should prescribe the terms of sale, the mode in which it should be conducted, not inconsistent with the chartered rights of the company, and make the directions plain and definite, we can then act upon its requirements and enforce them.

In the view which we are compelled to take of the law, the peremptory writ is refused.

Mandamus refused.

JAMES TUTTLE

v.

FRANCIS RIDGEWAY,

1. DECLARATION—when sustained by evidence. A declaration for a specific sum, averring that the amount has reached the defendant's hands to the use of the plaintiff, is good for any portion of the sum which may be proved.

2. PROMISE-what is a good consideration for. If A owe B and give his order on C for a sum that may come into the hands of C, to his use, and Caccept the order, he is liable to B for so much of that sum as shall come to his possession, his acceptance being a promise founded upon a sufficient consideration.

APPEAL from the Circuit Court of McLean County; the Hon. THOMAS F. TIPTON, Judge, presiding.

Messrs. WELDON & BENJAMIN, for the appellant.

Mr. M. W. PACKARD, for the appellee.

Mr. JUSTICE SHELDON delivered the opinion of the Court:

The declaration sets out that Snider gave to the plaintiff his order in writing on the defendant, to pay to the plaintiff the sum of six hundred dollars, and that afterward the de

Opinion of the Court.

fendant promised to pay the said sum of six hundred dollars. to the plaintiff, when the same should come into his hands, of moneys belonging to Snider, averring that thereafter there came into defendant's hands of such money a large sum, towit: seven hundred dollars. As the evidence shows that only two hundred and eighteen dollars of the money of Snider came into the hands of the defendant, it is objected that it does not sustain the declaration; that to make out a cause of action under it, six hundred dollars of such money must have been received by the defendant. We think this would be adopting a too literal construction of the language of the declaration. We regard the legal import of the promise as therein laid, to be, to pay whatever amount, not exceeding six hundred dollars, of the moneys of Snider that should come into the hands of the defendant; and that it was not essential to a recovery of the two hundred and eighteen dollars, which was had in this case, that the full sum of six hundred dollars should have come into defendant's hands.

As to the objection that there was no consideration for the promise, the funds of Snider in the hands of the defendant, and the extinguishment of his liability to Snider in respect to them, so far as covered by the order, constituted a sufficient consideration.

The point is made that the finding of the court below was against the clear preponderance of the evidence. After a careful examination of it, we find it to be conflicting in regard to the acceptance of the order, but see no sufficient reason for disturbing the finding of the court upon it.

The judgment must be affirmed.

Judgment affirmed.

Syllabus. Opinion of the Court.

GEORGE W. WILLIAMS

v.

DENNIS R. WALKER et al.

1. JUDICIAL SALE-administrator purchasing at his own sale. Where an administrator is the real purchaser at a sale of land by him for the payment of the debts of his intestate, by procuring another to bid off the land for his benefit, and such nominal purchaser, shortly after receiving a deed, conveys the premises to the administrator, a court of equity will set aside the sale on the application of the heirs.

2. FORMER ADJUDICATION—when bar to suit. A bill was filed by the heirsat-law of a deceased person to set aside a sale of land made by the administrator under an order of court, on the ground that he was the real purchaser at his own sale, through the medium of a relative, who, after receiving a deed from the administrator, conveyed the premises to the latter. It was shown that on a former bill filed by the widow and infant heirs against the administrator, a decree was entered, by consent, setting off to the widow a homestead in the premises, the bill seeking no other relief: Held, that the decree in the prior suit was no bar to the second bill, as the matters involved in it were not adjudicated in the prior bill.

APPEAL from the Circuit Court of Greene County; the Hon. CHARLES D. HODGES, Judge, presiding.

Messrs. ROBINSON, KNAPP & SHUTT, Messrs. BURR & WILKINSON, and Mr. HENRY C. WITHERS, for the appellant.

Mr. D. M. WOODSON & Mr. H. JOHNSON, for the appellees.

Mr. CHIEF JUSTICE LAWRENCE delivered the opinion of the Court:

This was a bill in chancery, brought by the heirs of Walker, against Williams, his administrator, to set aside a sale of real estate made by the latter for payment of debts. The sale is attacked on the ground that the land was sold and conveyed to Pankey, the father-in-law of Williams, for the benefit of the latter, by virtue of a previous arrangement between them.

Opinion of the Court.

Pankey conveyed to Williams a few months after the sale. The court set the sale aside on equitable terms.

It is unnecessary to review the evidence. It clearly shows that Williams was the real purchaser at his own sale, and, of course, the heirs have the right to set the sale aside.

It is also objected that the decree pronounced in a former suit has settled this controversy, and is conclusive upon these complainants. That bili was brought by the widow, in behalf of herself and her three minor children, for the purpose of having her homestead set off to her. Williams and the adult children were made defendants. It is true, the bill in that case, as in this, contained an allegation that the administrator was the purchaser, and that the sale was fraudulent; but the object of the suit was to secure a homestead.

Before any evidence was taken the parties agreed that the widow was entitled to a homestead, and entered into a stipulation naming two commissioners, who, with a third to be chosen by them, were to assign the homestead to the value of $1,000, and to determine the rents to which the widow might be entitled, she relinquishing her right of dower. It was also agreed their report should be the basis of a decree. They made a report assigning the homestead and allowing the widow certain rents, and the court embodied it in the decree and dismissed the suit at the cost of Williams. Whatever might be the effect of that litigation upon the widow, who is not a party to this suit, it did not conclude the heirs from asserting their right to have the sale rescinded. As already stated, only the minor heirs were joined with the widow as complainants, and the only matter settled by the decree was the homestead right of the widow, and this decree was pronounced by consent. If a decree had been pronounced upon the matter at issue here it would have been binding on the minors until reversed or set aside; but no such decree was rendered, nor was this matter submitted to the court.

We find no error in this record.

Decree affirmed.

Syllabus.

CITY OF JACKSONVILLE

V.

EDWARD LAMBERT.

1. MUNICIPAL CORPORATION-liability for tort-nuisance. Even though the authorities of a city may be under a legal duty to afford sufficient drainage for the health and comfort of the inhabitants, and, in the discharge of such duty, construct a sewer or drain after the most approved plan, using the best material, and the work is done in the most skillful manner, yet they have no right thereby to concentrate the dirty water, offal, and filth of the city or any portion thereof, and discharge the same upon the premises of an individual; and if, in so doing, a private injury is sustained, the city will be liable for the damages. It must so construct such improvement as to avoid injury to individual property.

2. SAME-discharging filth on private property. Where a city constructed a sewer so that the garbage, suds and slops, offal and filth from the dwellinghouses and woolen mills by which it run was conducted, discharged, and flowed upon and through the real estate of the plaintiff, situate in the city and near the terminus of the sewer, corrupting and polluting the atmosphere so as to render the land unsaleable and unsuitable for residences, and otherwise injure the use of the land or a portion thereof: Held, that the city was liable to the plaintiff in case for the damages sustained.

3. SAME-condemnation. If, in abating or removing a public nuisance by a system of sewerage or drainage, it unavoidably inflicts an injury to private property, the corporate authorities should, by condemnation or otherwise, make compensation for the injury.

4. DAMAGES exemplary. Where a city, in constructing a sewer in good faith, of good material, and in a skillful manner, has caused an injury to private property by the flow of offal and filth from the terminus of the sewer upon and through such property, punitive damages are not authorized.

5. EXCESSIVE DAMAGES-tort. In this case the city had constructed a sewer terminating near a tract of about fifty acres of plaintiff's land, whereby the offal and filth of a portion of the city was discharged and flowed over part of the tract, cutting off about six acres; but the work, at the time of the trial, was so changed that it was no longer a nuisance, and it did not appear that plaintiff or his family had suffered any considerable annoyance; but the principal claim and proof of damage was based upon an assumption of an injury in being prevented from effecting sales of the lands for residences. The jury rendered a verdict for $1,900 damages: Held, under the circumstances, to be grossly excessive, and ground for a new trial.

APPEAL from the Circuit Court of Morgan County; the Hon. C. D. HODGES, Judge, presiding.