Opinion of the Court. the court, it is seen that the proof of the payment of such taxes was properly made to render the statute availing. Appellees then showed that they were in a position to successfully invoke the aid of the statute to bar the action as to the west third of the lot, and as to it no error is perceived in the judgment of the court below. We now come to consider the question whether payment of taxes for seven successive years on the east third of this lot has been proved. On this branch of the case there has been no change in the evidence since the case was previously before us, except the oral evidence of Taylor, which was introduced on the last trial in the court below. We have examined it carefully, but it fails to impress us with a conviction that he has proved the payment of the taxes, to which he swears. He had no interest in the transaction, and this being so, it seems to us almost impossible that, after such a length of time, a person could recall a transaction of this character, when there was no other occurrence or event immediately connected with it, in the slightest degree calculated to impress it so indelibly on the memory. It was an event of daily occurrence for a considerable period in each of several years, that he was in some manner connected with the payment and collection of taxes. And this witness, a number years previously, when examined in reference to the payment of taxes for the same year, knew nothing of it. At that time it had entirely faded from his memory, and it seems incredible that years afterwards. it could be fully restored to his memory. Again, when cross-examined as to other concurrent circumstances that must have fallen under his observation, his memory seems to be at fault. That, from constant effort, it may be that the witness has persuaded himself that he has recalled to mind the facts to which he testifies may be true, but he fails to show by what process his memory has again re-possessed itself of long-forgotten occurrences. Believing that such could not be done by ordinary minds, we cannot believe that the payment of that tax was sufficiently proved, Syllabus. Statement of the case. and without it there is no view of the case in which it can be held that the bar of the statute has been proved as to the east third of the lot. And failing to do so, the court below erred in finding that a bar had been proved as to it. For this error, the judgment of the court below is reversed and the cause remanded. Judgment reversed. JAMES HENNESSEY v. JOHN V. HILL. CONSIDERATION-want thereof. Where a party gave to a constable his written obligation to pay a sum of money, the sole consideration for which was the forbearance on the part of the officer from levying a writ of attachment on the property of a third person, and the evidence showed there was no intention on the part of the officer to make the levy, the property being exempt from execution: Held, the contract was void for the want of consideration. WRIT OF ERROR to the Court of Common Pleas of the city of Elgin, Kane county; the Hon. RICHARD T. MONTONY, Judge, presiding. This was an action of assumpsit, originally brought by James Hennessey, against John V. Hill, before a justice of the peace, and afterwards appealed to the court of common pleas of the city of Elgin, Kane county, to recover on the following obligation, written on the back of an attachment writ, against one Andrew Ashbaugh: 52 281 44a 586 Statement of the case. Opinion of the Court. "RUTLAND, April 16, 1868. “I, John V. Hill, hold myself special bail to James Hennessey, constable, for the debt, interest and costs on this attachment, payable three months after date. It appears that Hill entered into the obligation to prevent Hennessey, as constable, from levying upon the property of Ashbaugh, but on the trial of the cause in the court below the evidence showed that Ashbaugh's property was exempt from execution, and Hennessey testified that he had no intention of making the levy. Judgment for the defendant. plaintiff thereupon sued out this writ of error. Messrs. BOTSFORD & HEALY, for the plaintiff in error. Messrs. JOSLYN & WING, for the defendant in error. The Mr. CHIEF JUSTICE BREESE delivered the opinion of the Court: The evidence fails to show any consideration for this undertaking of defendant in error, and this instruction to the jury was proper and the verdict correct: "That unless the jury believe from the evidence in this case that the said plaintiff, at the time of the execution of the writing on the back of the attachment, had levied, or intended to levy on the property of Ashbaugh, then there was not a consideration in law for the contract or bail, signed by the defendant, and the jury should find for the defendant." The plaintiff had not attached the property, and there was, therefore, no consideration for the promise. The judgment is affirmed. Judgment affirmed. Syllabus. Opinion of the Court. JOHN LEINDECKER et al. v. ELLA WALDRON. 1. PRIVILEGED COMMUNICATIONS-what are not. It is not error to permit an attorney, as a witness, to answer a question, the object of which was merely to ascertain whether the relation of attorney and client actually existed, not what was disclosed to him in that relation. Such question calls for no breach of professional confidence. 2. FORCIBLE ENTRY AND DETAINER—when sub-tenant can not be dispossessed under a judgment against the tenant. Where a landlord recovers a judgment in an action of forcible entry and detainer against his tenant, a sub-tenant, who was not a party to such judgment, can not be put out of his possession under the writ, unless he entered pendente lite. 3. SAME against whom the action will lie. A sub-tenant is, by the express provision of the statute, liable to this action, and it has so been held by this court. APPEAL from the Superior Court of Chicago; the Hon. WILLIAM A. PORTER, Judge, presiding. The facts in this case are fully presented in the opinion of the court. Messrs. ASAY & LAWRENCE, for the appellants. Mr. W. T. BURGESS, for the appellee. Mr. JUSTICE LAWRENCE delivered the opinion of the Court: This was an action of trespass, in which the record shows substantially the following facts : Leindecker had rented a house in Chicago to Granger, and the latter had sub-let the upper story to Mrs. Waldron, the appellee. Some difficulty occurred between Granger and her, from her delay in the payment of rent, and he brought an action of forcible entry and 52 283 25a 624 52 283 44a 65 52 283 55a 344 52 283 79a 267 Opinion of the Court. detainer against her, but was defeated on the trial. His attorney then had an interview with Leindecker, and commenced an action of forcible entry and detainer in his (Leindecker's) name, against Granger, who at once appeared, waived process, and allowed judgment to be entered against himself, the alleged ground being that he had violated a clause in the lease against sub-letting. A writ of restitution was issued and executed, not against Granger, but against Mrs. Waldron, who was not a party to the suit. The constable had several men to assist him, and her furniture, in the course of an hour, was all taken from the house and placed upon the sidewalk, except a piano, which was deposited in a feed-store near at hand. She was a dress maker, and had two daughters and two employees. Her business was, of course, damaged, and this forcible expulsion into the streets seriously affected her health. The whole proceeding was a wrong without even the color of law. The officer, who acted under the direction of the attorney, did not disturb Granger, against whom alone his writ ran, but Granger himself went through the farce of moving a few articles of his furniture from the house, and moving them back again. This suit was brought against both Leindecker and Granger. There have been two trials, in the first of which the plaintiff recovered a verdict for $1700, and in the second for $1000. No question is made by the appellant's counsel on the instructions, but it is contended that the attorney who conducted these proceedings was not the duly authorized attorney or agent of Leindecker. That question was fully and fairly submitted to the jury upon the instructions, and their finding is, we think, fully sustained by the evidence. The attorney swears he had several interviews with Leindecker before commencing the suit, in which the subject was discussed, and in consequence of those interviews he commenced the suit. After the constable had executed the writ, he locked the rooms and delivered the keys to Leindecker, to whose house he went with Granger. The jury, probably, concluded, and with |