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they shall have obtained a license therefor. The case where the objection was made at the hearing or in was tried in the court below on an appeal from the
this court. In the present case the answer expressly justice of the peace on a stipulation as to the facts. It insists on the want of interest in the administrator." was agreed that defendant was a corporation, organ
Affirmed.-Bryan v. Duncan. ized under the laws of the state, and when the suit was instituted against the company it was carrying on the kind of business mentioned in the ordinance. Its ABSTRACT OF DECISIONS OF SUPREME factory was in Cook county, outside of the city limits,
COURT OF WISCONSIN. and within the town of Lake in that county, and it had then a license from the town of Lake to carry on the kind of business it was engaged in, but had no license
August Term, 1878. from the city of Chicago. The cuurt below rendered judgment against defendants, and they appeal to this Hon. E. G. RYAN, Chief Justice. court, and urge in favor of a reversal that, for various
ORSAMUS COLE, reasons, the city had no power to pass or enforce the
" WM. P. LYON, Associate Justices. ordinance. WALKER, J., who delivered the opinion,
DAVID TAYLOR, after a long and careful discussion of the questions,
66 HARLOW S. ORTON, I viz.: 1. Whether the general assembly had granted the power to the city of Chicago to pass an ordinance of IN AN ACTION BY THE INDORSER OF A BILL OF such a character; 2. Whether the power was also EXCHANGE, who had been compelled to pay the same, granted to exercise police restraint outside of the city
the drawer and acceptor can not defend on the ground limits and within another municipality (citing 50 Ill.
that the bill was given and accepted on an unfulfilled 69; 13 Ill. 554; 46 III, 392), concludes; “We must con
parol condition, as that the payee would surrender a clude that the general assembly, rather than subject
note held by him against a third person. Opinion by one large city to such hazards from smaller municipal
COLE, J.-Foster v. Clifford. ities in their immediate vicinity, would have repealed the charter of the latter, of at least curtailed their
PRACTICE - JUDGMENT CAN NOT BE SET ASIDE power. What in the open and thinly settled country
AFTER TERM–NEW TRIAL.-1. It is the settled law would not be obnoxious as a nuisance, would in the heart
of this state that the circuit court of this state can not of a city be a terrible nuisance. Persons then desiring ! set aside its own valid judgment after the term at which to engage in or near to cities must submit to have their
it is entered, except to correct clerical errors, or under pursuits limited and contracted. Whilst trade, man
the provisions of section 38, ch. 125, Rev. Stats. 1838; ufactures and commerce have large claims on the laws
and the rule is not affected by the fact that the motion for protection, theirs is not the only nor have they the
to set aside was made during such term. 2. It seems highest claims. * * To accomplish this purpose
that the question whether a new trial can be granted (protect health and lives), the power was conferred
wbere a judgment to set aside after the term under the upon cities and villages to regulate these establish-|
provisions of said sec. 38, is still an open one in this ments for the distance of one mile beyond their cor
court, notwithstanding a dictum in Scheer v. Keown, porate limits, even if that should lap over and embrace
34 Wis. 349. 3. A motion for a new trial on the a portion of territory einbraced in the buundaries of
ground that the verdict was contrary to law and evianother municipality.” Affirmed.-Chicago Packing
dence, and for ncwly-discovered evidence is not Co. v. City of Chicago.
an application under said sec. 38. 4. After entry of judgment, a motion at the same term to set
aside the verdict and grant a new trial should not BILL TO REMOVE CLOUD ON TITLE – POWER OF
be entertained unless joined with a motion to vacate ADMINISTRATOR TO MAINTAIN SUIT. ---This was a bill
the judgment. 5. In case of relief sought under sec. in equity brought by the appellant as administrator of
38, not only the motion but the order to vacate must be an estate to remove a cloud from the title, and to re
made within the year allowed by the statute, Opinion cover possession of certain lands. The answer denied
by TAYLOR, J.- Whitney v. Karner. that the complainant as administrator had any interest
PRACTICE-CONSOLIDATION OF ACTIONS. – 1. The in or power over the real estate in question, and al
statute respecting the consolidation of actions (sec. l'ged other defenses. The court below dismissed the
42, ch. 125, Rev. Stats. 1868), provides for such consoli. bill, and complainant appeals. SHELDON, J., says:
dation only "when the actions might have been joined." "If for no other reason we think the decree of dismissal
2. An action against a railroad company for a trespass of the bill must be sustained upon the ground of the inability of an administrator to maintain a bill of this
to lands in building or maintaining its road thereon,
without license or condemnation of the land, can not character. The administrator is the sole representa
be joined with a proceeding by the company to contive of the personal estate, but not of the real prop
demn the land under ch. 119 of 1872; and an appeal to erty. This court has decided that an administrator
the circuit court in the latter proceeding can not be takes neither an estate, title or interest in the realty,
consolidated with such an action for trespass pending and that he can not support any possessory or real ac
in the same court. 3. It is discretionary with the tion, etc. See 16 III. 177; 17 Ill. 135; 31 III. 379; 39 Ill. 402; 51 Ill. 390; 70 Ill. 399; 53 Ill. 186. It is true that
court in all cases to refuse a consolidation of actions. in the latter case, which was a bill by an administrator
4. An order refusing to stay proceedings in the tresof a like character with this, this court said that the
pass action until trial of the appeal in the condemnabill was obnoxious to a general demurrer on the
tiou proceeding, is in the discretion of the court, and ground above, but as the bill has never been fully an
not appealable. Opinion by Orrox, J.-Blesch o. C. swered and an issue made up thereon, the cause was
& N. W. R. R. properly beard on its merits. That case is not to be CORPORATIONS - DUTY OF TO KEEP ITS PRINCIunderstood as deciding that an answer is a waiver of PAL PLACE OF BUSINESS IN STATE WHERE CREATED such matter as might have been objected to by demur --FORFEITURE-QUO WARRANTO.-1. The statutes of rer. Where an objection, as to the jurisdiction of the this state relating to the levy of attachment or execucourt, that there was a remedy at law had been made tion upon shares of stockholders in corporations, to for the first time at the hearing, it has been held that proceedings by or against corporations, and to the exthe objection came too late. 4 Cow. 727; 2 Paige, 503. | ercise of the visitorial powers of the state over them, We understand that the case of 53 III. 186, was one' as well as the act regulating the duties of the railroad
commissioner and the general act concerning railroad er an offer to return goods sold and rescind the con-
ABSTRACT OF DECISIONS OF SUPREME warranto, filed, by leave of the court, by the attorney
COURT OF INDIANA. general io behalf of the state. to annul the charter of a railroad company upon the grounds above stated. 6.
May Term, 1878. Persons injured by the alleged misconduct of the company, in specific instances stated in the information, need not be joined as plaintiti's or made relators in this Hon. WILLIAM E. NIBLACK, Chief Justico. action. 6. The several particulars of the defendant's
HORACE P. BIDDLE, abuse of its franchises alleged in the information (its
JAMES L. WORDEN, Associate Justices. having its principal office in another state, its keeping
GEORGE V. HOWK, its records there, and the fact that its officers reside
" SAMUEL E. PERKINS, ) tbere), are not distinct causes of action; but even the joinder of distinct grounds of forfeiture in such an in
PLEADING-EXHIBITS.-Exhibits which are not tho torination would not be demurrable. Opinion by OR
foundation of the action or defense do not become part TON, J.-State o. M. L. & N. R. R.
of a pleading by being filed with it, and the contents
of such exhibits can not be considered to supply any DAMAGES—WARRANTY-EVIDENCE-RESCISSION OF
omission in, or to aid in :he construction of the averCONTRACT:-1. Wuere one of the questions in issue
ments in the pleading. Opinion by NIBLACK, C. J.was as to the defendant's damage from an alleged
Moore v. Cline. breach of warranty in the sale of oxen, it was not error COMPLAINT FOR NEW TRIAL-PLEADING.-A com. to rule out a direct question put to him as a witness in
plaint for a new trial on the ground of newly-discovhis own behalf, calling for his opinion as to the amount
ered evidence must set out all the evidence given of such damage. 2. The plaintiff in much action, on
upon the former trial; and where such complaint his cross-examination by defendant, might properly be shows on its face that it does not contain all the eviasked whether the oxen were in as good a condition at
dence, a demurrer filed thereto does not admit to be the time of the sale as at the time of the trial, especi.
true an allegation that such complaint does contain all ally when he had introduced evidence of their value
the evidence. A demurrer admits only such facts as based upon their appearance at the latter time; but
are well pleaded. Opinion by WORDEN, J.-Trustees error in ruling out the question was cured by the wit
of the Indiana State Spiritual Association v. Reyness afterwards testifying to the same point upon di
nolds. rect examination. 3. To constitute a rescission of a contract of sale, for breach of warranty, the vendee's SHERIFF'S SALE – NON-PAYMENT OF PURCHASEoffer to return the property should be unconditional, MONEY.-A venditione exponas can only issue where and should assign the breach of warranty as the ground property levied on remains unsold. In this case, the thereof. 4. The warranty claimed in a sale of oxen sheriff's return to the previous execution was as folwas, that they were sound and true, and in all respects lows: “The real estate levied on (being the land above snitable for defendant's purposes. There was proof described) sold to John G. Shackleford, April 6, 1872, that some time after the purchase that the vendee for $130; purchase-money not paid.” A fair construc. wrote to the vendor that he was so much disappointed tion of the return shows that the land remained unin the oxen that he would not pay the note be had sold when the return was made. The language was given the vendor for $118, the purchase price; that they equivalent to saying that the land was “bid off by were not worth $75; and that the vendor might take John G. Shackleford for $130: purchase-money not them away, upon which vendee would pay for the use paid.” The plain inference is that the title of the land of them, or might leave them, in which case he would had not then passed, and that hence there haà been no par $75 for them. Held, that there was no error in re valid sale. No valid sale being shown by the return, it fusing to instruct the jury upon this evidence, as mat followed that the land remained unsold, and that a ter of law, that defendant had rescinded the contract. venditione exponas was properly issued. Opinion by 8. It is generally a question of fact for the jury wheth. | NIBLACK, C. J.-Dawson o. Jackson.
QUERIES AND ANSWERS.
short_singularly so in this day of lengthy Judgmentsaveraging a little over two pages each in length. We
have not been able to find among them any cases of QUERIES.
general importance or interest. 65. A QUESTION ON THE LAW OF HOMESTEADS.-A There is, however, one amusing case in this volume. owns the N. 200 feet of Blk. 34, the same being in one In Hancock v. Elam, p. 33, a verdict was set aside on inclosure. The house stands on the E. 125 feet, the account of the tender regard for a juror's stomach en. barn on the W. 75 feet. The premises are occupied as tertained by the supreme court. On the trial of the case, a homestead by A. In December, 1874, he (wife not the jury having been out from eleven till one o'clock, joining) conveyed to B, but B did not put the deed on returned into court and announced that they could not record until October, 1875. In the meantime A, being agree, Upon this the judge, who had no doubt already in want of money, in May, 1875, borrows $2,000 of G, and dined, ordered the sheriff to lock them up until they gives a mortgage, in wbich his wife joins on the E. agreed, without, as the appellate court very compas. 125 feet of the N. 200 feet of Blk. 34. Then A and sionately remarks, " allowing them to bave their din. wife die, leaving them surviving several children, two ners before being locked up.” The verdict was set of whom are minors. B, in October, 1877, conveys aside on account of tbis piece of tyranny on the part of to D, one of the children, and who resides with the this judicial gourmand. “The jury might very well family on ihe homestead. Now, supposing the con understand,” say the court, “that they were requested veyances from A to B and B to D should be declared either to agree or to submit to indefinite confinement void, this would still leave the title in D and the mi
and starvation. They were ordered to be locked nor heirs of A. The question is: Can D set up home up until they should agree. They did agree in stead exemplion against E (a judgment creditor who the course of several hours, but whethor their has filed a creditor's bill asking that the last mention disagreement was harmonised, under free patient ed conveyances be set aside), as to the W.75 feet of the investigation and deliberation, or under the appre. N. 200 feet of said Bik, that being the part on which hension of prolonged confinement and starvation, homestead exemptions have never been waived ?
we have no means of determining. We can see, however, that under the influence of such an arbitrary order, jurors may have yielded their convictions, in
order to avoid the threatened consequence of continued ANSWERS.
disagreement." And so the plaintifflost her judgment of No. 56.
$228, which the jury had found to be the value of work [7 Cent. L. J. 199.]
and labor performed by her for the defendant, and for In regard to the amount of diligence required in all we can tell, waits for her dinner still. It is a pleas. making demand of payment and giving notice of dis ure to think that the poet's famous line: honor in order to hold the indorsers of a note indorsed “And wretches hang that jurymen may dine," after maturity, see 6 Ohio, 55, 66; Lanborn v. South can never be applied to the State of Tennessee, whose ard, 25 Maine, 409; Rice v. Werson, 11 Metc. 400; Bank highest tribunal can discern with so quick an eye, and of Alexandria v. Swann, 1 Pet. 33, 47; Bank of Co can visit with such enormous penalties, any attempt, on lumbia v. Lawrence, 1 Pet. 578, 584. Does knowledge the part of its officials, to interfere with the right of the of maker's insolvency excuse demand and notice, in citizen to have his mid-day meal promptly at noon. order to hold the indorser? Pon's Executors v. Kelley, A London alderman, just rising from a dinner of 2 Haywood, 45; Escale v. Sowerby, 11 East. 114; Gow whitebait, could deliver the judgment in this case with er v. Moore, 25 Maine, 16; Byles on Bills, 158; Howe becoming unction. v. Bowers, 16 East. 112; Nicholson v. Gonthwitt, 2 H. BI. 609; Russell v. Langstatf, Douglas, 497; May v. Coffn, 4 Mass. 341; Juniata Bank v. Hale, 16 S. & R. 167; Byles on Bills, 234, 236.
H. P. G.
NOTES. Brunswick, Mo.
· LORD CHANCELLOR CAIRNS has received the title of
Viscount Garmoyle. —
Mr. Richard H. Dana, Jr.,
will reside for the next two years in Paris, and will 17 Cent. L. J. 219.)
devote most of his time to the completion of a work on A statutory exemption cannot be waived by an exe
international law.--The members of the Executive cutory contract, and such a waiver will not be en
Committee, and of the Committee on Grievances, of forced. “The principle is that the exemption created
the Illinois State Bar Association, are invited to meet by the statute is as much for the benefit of the family
at Springfield, October 10th, at ten A. M., for executive as for himself, and for that reason he can not by an ex
and committee action. The members of the Executive ecutory contract waive the provisions of the law made
Committee are: The President and Secretary, ex of. for their support and maintenance.” Recht v. Kelly,
ficio; 1st. Dist. J. M. Rountree. Nashville; 2d, S. M. 82 Ill. 147; Phelps v. Phelps, 72 Ill. 548; Curtis v.
Moulton, Shelbyville; 3d, C. A. Roberts, Pekin; 4th, O'Brien, 20 Ia. 376; Maxwell v. Reed, 7 Wis. 583; N. M. Knapp, Winchester; 5th, Charles Blanchard, Ot. Kneetle v, O'Brien, 22 N. Y. 249.
G. L. D.
tawa; 6th, J. G. Monaban, Chicago; 7th, J.B. Bradwell, Bushnell, III.
Chicago. The members of Committee on Grievances are: 1st Circuit, Thos. H, Clark, Golconda; 2d, Wm.C.
Jones, Robinson; 3d, Sam'l L. Dwight, Centralia; 4th, BOOK NOTICE.
Wm. E. Wilson, Decatur:5th, A., Orcudorff, Springfield; 6th. A. C. Matthews, Pittsfield; 7th. Wm. Fuller,
Clinton; 8th. H. W. Wells, Peoria; 91h. S. W. Munn, REPORTS OF CASES ARGUED AND DETERMINED in Joliet; 10th. A. N. Brown, Galesburg; 11th. Stephen
the Supreme Court of Tennessee. Edited by JERE R. Moore, Kankakee; 12th. Jesse M. Hildrup, Chicago; BAXTER. Vol. III. Nashville, Tenn., 1878.
13th. L. L. Bond, Wm. Vocke, R. E. Jenkins, ChiThe cases reported in this volume were decided at cago. The interests of the association require the at. the December terms of 1873 and 1874, of the Supreme tendence of the members of these committees at this Court of Tennessee. The volume contains 576 pages, meeting. The call is by order of Anthony Thornton, and is well printed and bound. The opinions are all / president, and Wm. L. Gross, secretary.
The Central Law Journal. The case of Kinsley v. Lake Shore &
Michigan Southern Railroad Co.,-recently de
cided by the Supreme Judicial Court of MasSAINT LOUIS, OCTOBER 11, 1878.
sachusetts, raises the question of the respon
sibility of a railroad company for the loss of a CURRENT TOPICS.
passenger's baggage. It appeared that the
plaintiff was a passenger on defendant's railIn Foote v. Despain, where a plaintiff 's at- road from Cleveland, Ohio, westward, having torney had brought on a case for trial in the purchased in Boston coupon tickets over that absence, and without the knowledge of the de- and other roads, from Boston to San Franfendant and his attorney, and in violation of a cisco. At Cleveland the plaintiff also purwritten stipulation to give ten days notice of chased a ticket which gave him a right to trial, on a bill in equity filed by the defendant, ride in the car “China,” one of two sleeping it was held by the Supreme Court of Illinois cars which formed part of the regular train on that equity would grant relief by ordering a defendant's road. After leaving Cleveland, new trial at law, though relief might be had at and before reaching Toledo, Ohio, notice was law by a motion to set aside the judgment.
given to the passengers that twenty minutes In Nelson v. Rockwell, 14 Ill. 375, it was said:
would be allowed for dinner at Toledo. On "Fraud is one of the broadest grounds of
leaving the car at Toledo, for dinner, the equity recognized by the courts, and relief | plaintiff inquired of an employee in the car may be obtained against a judgment at law,
whether his baggage would be safe if left in although the party might find a remedy in the
the car, and was told to leave all his baggage courts of law. It is the fraud which gives
in the car, that it would be perfectly safe ; jurisdiction to this court, and the aggrieved
and the plaintiff left the bag, to recover the party is not obliged to resort to another tribu
value of which this suit was brought, with nal possessed of less power and appliances to
other articles in the car. On his return from ascertain the truth and grant the requisite
dinner, plaintiff found that the car “China” remedy, although the other tribunal may have
had been taken from the train, and the doors jurisdiction.” In How v. Mortell, 28 Ill. 478,
of the car locked, and was informed that that it was held that a court of equity had juris
car would not go beyond Toledo, on account diction to grant a new trial in an action of of the small number of passengers, and that he ejectment, where the trial had been had in vio could have a seat in the other sleeping-car, and lation of an agreement, entered into by the
would find his baggage there. On going into the attorneys in the cause, that the case should not
other car plaintiff found all his baggage exbe tried without notice from one to the other. | cept the said bag. He applied to the conThe decision is based upon the ground that ductor, and diligent search was made, but the courts of equity have jurisdiction to decree a bag could nowhere be found. The defendants new trial at law where a judgment has been
offered to prove that the “China” did not beobtained by fraud, accident, or mistake. The long to them, but to George Gates and others, same principle is followed in Beams v. Den and was managed and controlled by the ownham, 2 Scam. 58; Wilday v. McConnel, 63 III. ers, and was in the immediate care and charge 278; Babcock v. McCamant, 53 Ill. 215.
of their employees, under a contract between “It is true,” say the court in the principal
said Gates and others and the defendants. case, “ applications to a court of equity for a
There was no evidence that said contract was new trial after a judgment at law are not fre
known to plaintiff, or that he had any notice quent, for the reason that, ordinarily, the same
that the “China” was not owned by the defendremedy may be obtained on motion for a new
ants and in their exclusive control. The lower trial, and the practice of resorting to a court
court, without a jury, ordered judgment for of chancery ought not to be encouraged; yet,
plaintiff. Morton, J., in delivering the opinwhere a judgment has been obtained by fraud,
ion of the Supreme Jndicial court, said: accident, or mistake, and the complaining
“Although a railroad corporation is not responparty is free from negligence, it is proper the
sible as a common carrier for an article of relief should be granted in a court of equity.” ( personal baggage kept by a passenger exclu
Vol. 7–No. 15.
sively within his control, it is liable for the In Chicago West. Div. R. R. v. Hughes, loss of such an article by the negligence of 87 Ill. 94, the plaintiff was a workman, and the corporation, or its agents, or servants, had recovered $4,500 for a fracture of his arm and without fault of the passenger. Clark v. ] by being run over by a street car. He testified Burns, 118 Mass. 275 ; Bergheim v. Great | that, since the accident, he could not earn Eastern Ry., 3 C. P. D. 221. * * * one-half as much as before, as did also his only The plaintiff's contract was with the defend witness a fellow-workman. The supreme ant alone. The fact that the car was not court reversed the judgment on the ground of owned by the defendant, but was used on its excessive damages. Upon a former trial this road under a contract with other parties, who plaintiff had recovered a verdict for $5,000, furnished conductors and servants to take of which, upon a motion for a new trial, be charge of such cars, there being no evidence remitted $2,000, and judgment was rendered that the plaintiff knew of that contract or for $3,000, which, upon appeal, was rehad any notice that the car was not owned by versed for error in an instruction. See 69 III. the defendant and under its exclusive control, 170.—Pitts. Cin. & St. L. R. R. v. Dewin, could not affect the measure of the defend 86 Ill. 296, was a somewhat curious case. The ant's liability to the plaintiff.”
plaintiff, a child twenty-seven months old, brought an action, by his next friend, against
the defendant, a railroad company, to recover In the next forthcoming volume of the damages for being expelled from one of its Illinois Reports, the advance sheets of which we passenger trains. The company was operathave just received through the courtesy of the ing a road from Chicago to Richmond, Indireporter, Hon N. L. Freeman, we note several ana. At the latter place Dewin, his wife, and cases of interest, where the question of excess six children, came upon the train, on their ive damages has been discussed and determined. way to Chicago. The oldest child was fifteen In Kolb v. O'Brien, 86 Ill. 210, the plaintiff, years of age; the second one, ten; the third a domestic servant, was injured by the negli one, eight; the fourth, six; the fifth, plaintiff, gence of the driver of defendant's omnibus. twenty-seven months old ; and the youngest, She, with a number of others, all returning eight or nine months. Dewin, the father of from an exhibition, was waiting on the side the plaintiff, had tickets from Richmond to Chiwalk to be carried home. When the omnibus cago for two persons only, and when the conbacked up, she placed her foot on the step for ductor on the train called on him for fare for the purpose of getting in, when the driver | himself and family, the two tickets were ofbacked it against the sidewalk, crushing her fered for the transportation of the whole ankle. In consequence of the accident she | family. This the conductor refused. He was disabled from labor, for which she earned | made no charge for the three younger childfour dollars a week, for twelve weeks, incurred | ren, and offered to take the older three at half a doctor's bill of fifty dollars and was nursed fare, which was more liberal than the rules of and boarded at an expense of about seventy the company, under which he was acting, alfive dollars. The testimony did not show that lowed, as the rules in evidence only provided she had suffered any permanent injury. The that children between the ages of five and jury found a verdict in her favor for $2,200, twelve years could travel on half-fare tickets. which, on appeal, is reversed, the supreme Dewin and his wife refused to pay anything court saying: “We fail to find anything in on account of the children, and insisted that the evidence requiring, or even justifying, the all the family should be carried on the two assessment of vindictive damages against | tickets. The conductor replied: “You will plaintiff in error. If there was negligence on either have to pay for these children or they the part of the driver, as the jury have found, will get off.” The fares not having been it is not of such a character as to imply mal paid, when the train reached the next station, ice, or wanton disregard of the safety of de- the whole family left the train. They refendant or others. It then follows that the mained over night at Washington, and the day damages should have been compensatory | following were carried to Chicago on the next only, whilst they are greatly beyond train without the payment of additional fare, anything warranted by the evidence.” having been delayed on the road abou