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Opinion of the Court.

forcibly and against the will of the owner. If these do not bring the case within the statutory definition of a riot, we are at a loss to conceive a set of facts which would.

We forbear comment on the facts in detail. Grouping them, they establish one of the most outrageous cases of contempt of public law which has come before us.

There does not seem to be a palliating circumstance to which appellee can resort for justification. It is true, he feigns to believe, as he had no pistol or other deadly weapon, and made no threats, he should not be responsible for the acts of others. He has endeavored, and quite successfully in the court below, to make himself a subordinate in the transaction, and Henry and Crawford as the active participants, but the proved facts show he was the moving spirit. He had purchased this property from Henry; he advised taking it by force, if necessary; he aided in driving the colt from the range; he entered the premises of appellant with his confederates; he was present aiding in letting down the bars; he had the rope in his pocket with which to halter the colt. In such a combination, when proved, the unlawful acts of one are the acts of all the confederates. No one can escape the penalties which may flow from such unlawful combinations.

In the view we have taken of the testimony in this cause, we are well convinced appellee, Mallory, was guilty, with Henry and Crawford, of a riot. Being so guilty, there was probable cause for the arrest of appellee, and the jury should have so found.

The case should go to another jury, and that it may, the judgment of the circuit court is reversed and the cause remanded.

Judgment reversed.

Syllabus. Opinion of the Court.

HENRY WARREN et al.

v.

RICHARD DOOLITTLE."

1. FRAUD-false representations-matters of opinion. Where the purchaser of an article seeks to set aside the sale on the ground of fraudulent representations made by the seller, equity will not grant the relief merely because of representations which are but matters of opinion or specula, tive commendation as to the qualities of the thing sold.

2. In this case, as regards the matters of fact embraced in the representations made, it is held, that the proof shows no fraud which would authorize a rescission of the contract.

APPEAL from the Circuit Court of Will county; the Hon. JOSIAH MCROBERTS, Judge, presiding.

Messrs. WILDER & DAVIS, for the appellants.

Messrs. RANDALL & FULLER, for the appellee.

Mr. JUSTICE SHELDON delivered the opinion of the Court:

Henry Warren, one of the appellants, having obtained letters patent for an improvement for making compound chemical soap, sold, on the 12th day of April, 1864, to the appellee, Richard Doolittle, in conjunction with one Daniel C. Young, the right secured by the letters patent, for the city of Chicago and the county of Cook, and this bill was filed by Doolittle, March 28th, 1868, to set aside the sale on the ground of fraudulent representations.

Most of the alleged representations were mere matters of opinion or speculative commendation as to the qualities of the soap, against which equity will not relieve.

There were, really, but two matters of fact embraced in the representations as to which proof was adduced, which were, that the soap was made without lye and grease, and that it would not shrink more than ordinary soap.

Opinion of the Court.

The soap was confessedly made without lye or grease, as such. Brown's opodeldoc was used in the making of it, and Warren so informed the purchaser. This contained the above named ingredients; but that article, though containing those ingredients, was something different from either in a simple state.

Besides, it is not apparent wherein consists the damage to result from such a false representation. These ingredients seem to enter into the composition of all soaps, and, according to the proof, the more of them the better the article.

The only real ground of complaint as to the quality of this soap, appears, from the evidence, to be its liability to shrink. When green, it seems to possess peculiar qualities of usefulness. It appears, from the testimony, to be the nature of all soaps to shrink considerably. After an examination of all the testimony on this head, we do not think it discloses any such substantial difference in this respect between this and other soaps, as to justify the conclusion that the representation of Warren, that the soap would not shrink more than ordinary soap, was a false and fraudulent one.

There were some facts disclosed in the evidence which bear stronger testimony as to the merits of the subject matter of this patent right than the opinions of interested witnesses.

Mrs. Codding and Mrs. Rolland gave testimony on behalf of the complainant in depreciation of the article, but on their cross-examination it came out that, after some six months' personal experience in the making, use and sale of it, they had given their written certificates in commendation of its good qualities, the former testifying that her's was essentially true; and Mrs. Rolland, after having purchased the patent right for Sauk county, Wisconsin, and making and selling the soap under it for some time, purchased the right for Milwaukee county.

The witness Greenman, a druggist at Sandwich, Ill., testified for the defendant in favor of the article, and gave the fact, in confirmation of his testimony that, after having bought the

1871.] WARREN et al. v. WALBRIDGE, ADM'R, ETC., et al. 173

Syllabus.

patent right for DeKalb county, and manufacturing and selling the soap under it, he purchased the right for the rest of the State except seventeen counties, and paid for it $6500.

Doolittle by no means dealt with Warren wholly upon faith in the representations of the latter. He saw the article made by Warren in his presence, the latter showing him the ingredients. He had seen a notice of the patent in the "Scientific American." He says he was induced to purchase by the experiments of Warren and his statements, and by what Hillis said about it; and that if Young, the joint purchaser with him, had not purchased, probably he should not.

The delay, too, in bringing this suit-about four years after the purchase-affords an unfavorable inference against the complainant.

We are of opinion the proof shows no fraud which would authorize a rescission of the contract.

The decree of the court below will be reversed and the cause remanded.

Decree reversed.

HENRY WARREN et al.

v.

ELIZUR WALBRIDGE, Adm'r, etc., et al.

FRAUD-false representations-laches. Where the purchaser of an article sought to set aside the sale on the ground of fraudulent representations made by the seller, it was held, that, in addition to the fact that the plaintiff failed to make out the fraud alleged, the fact that, for several years after the making of the contract, it was acted upon by the purchaser and his representatives, with a knowledge of all the facts, and treated as still subsisting, afforded an additional reason why a court of equity should not interfere.

APPEAL from the Circuit Court of Will county; the Hon. JOSIAH MCROBERTS, Judge, presiding.

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Syllabus.

Messrs. WILDER & DAVIS, for the appellants.

Messrs. VAN ARMAN & VALLETTE, for the appellees.

Per CURIAM: This was a bill in chancery, filed by the appellees against the appellants, to set aside a contract for the sale of the same patent right, as in the case of Warren et al. v. Doolittle, ante, for the counties of Milwaukee and Sauk, in the State of Wisconsin.

The two cases are essentially alike in their main features, except that, in the present case, there is proof that, for several years after the making of the contract, it was acted upon by the purchaser of the patent right and his representatives, with a knowledge of all the facts, and treated as still subsisting, which affords an additional reason why a court of equity should not interfere. 1 Story Eq. Ju. sec. 203 a; Ormes v. Beadel, 2 De Gex, F. & J. 236; Vigars v. Pike, 8 Clark & Finn, 562.

The opinion in that case governs the decision of this.

The decree of the court below is reversed, and the cause remanded for further proceedings in conformity with this opinion, and that in Warren et al. v. Doolittle.

Decree reversed.

61 174 22a 24

61 174 131 502

61 174 70a 88

61 174 89a 2520

61 174

193 2311

ELIAS MITCHELL, Adm'r,

บ.

THE TOWN OF FOND DU LAC.

1. INSTRUCTIONS—must be applicable to the case. Although instructions may contain correct legal propositions, still it is not error to refuse them if they are not applicable to the case.

2. SAME-containing legal propositions. It is error to give instructions to the jury which require the jury to find and determine legal proposi tions. The court should direct the jury what the law is on the facts the

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