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to Lord Carlisle, with a reservation of a strict rent of 4 per cent. in specie on the product of the islands, and afterward King Charles II. had granted £1,000 per annum in money, out of the produce of that rent, to Lord Kinnon and his heirs, is to the same effect. As there observed by the lord chancellor, "this would have been a mere annuity, ** *because a rent cannot be reserved or granted out of a rent. Part of a rent may be granted, indeed; but a new rent cannot be reserved or granted thereout, because no distress can be or assize taken of it, as there is nothing to be put in view of recognizers of the assize; which, the rule is, is necessary, and has been so determined." See, also, 3 Greenl. Cruise, 74.

The bequest in this case, as we have seen, having been not of the lands themselves, nor of the rents and profits thereout arising, nor yet of a rent-charge upon the lands, but of an annuity payable to the legatee personally, and terminable at his death, and the remedy for non-payment thereof being, in general, by a personal action of debt, or covenant on the instrument creating the annuity, (3 Kent, Comm. 460,) or by bill against the trustee to compel an account; and, as the assignee in bankruptcy did not, as we have seen, assume to sell the annuity of his bankrupt, nor the purchaser to buy it; and, further, as appellant relies solely upon the rights acquired by the purchaser at the assignee's sale,-the conclusion is irresistible that her cross-bill was without equity, and was properly dismissed. The decree of the circuit court is therefore affirmed.

ON REHEARING.
(Nov. 26, 1889.)

It is thus, as we think, made clearly to appear from the authorities that the devise of a yearly sum, to be paid, by a trustee to whom lands are devised, upon uses and out of the net rents that may accrue from the lands in his possession, and which sum is contingent upon the exigencies of the trust, is in no sense a devise of rents issuing out of such SCHOLFIELD, J. Very clearly, the paylands, but is in the nature of an annuity. ments which the will directs the trustee to And hence it follows, as it seems to us, that make to the widow and the children are not the legatee neither took nor acquired any in-a rent-charge. 1 Thom. Co. Litt. 349, (1436;) terest in the particular real estate. This 3 Greenl. Cruise, 71, 72; 3 Kent, Comm. (12th must certainly be true, unless the annuity be- Ed.) 595, (496.) They are simply annuities to queathed was made a charge upon the lands; be paid from the annual rents contemplated in which case it became a rent-charge, de- to accrue from the leasing of the Sherman scendible, in general, to the heirs of the dev- House. 1 Broom & H. Comm. (Wait's notes,) isee, as real estate. 3 Kent, Comm. 460. 459, (*55;) 1 Thom. Co. Litt. 352, (1446;) 3 That the annuity bequeathed to Francis was Kent, Comm. (12th Ed.) 595. It could not not made a rent-charge upon the trust lands, have been intended by the testator that the seems also clear to us, upon authority. There payment of these annuities are a charge are not only no words creating a legal rent-against the corpus of the estate, because that charge, but there is entirely wanting a power might have defeated the power expressly givto distrain if the annuity be not paid; and, en to the trustee to borrow money to rebuild according to all the definitions and authori-and secure the loan by mortgage on the propties, the distinctive characteristic of a rent-erty, and his expressed intention that his truscharge is the right of distraint. 2 Bl. Comm. tee "shall have, hold, and manage the Sher42; 3 Kent, Comm. 460; People v. Haskins, man House property, entire and undivided,” 7 Wend. 469. A grant, by deed, that A. may and appropriate the rents, issues, and profits distrain land for a rent, is a rent-charge; for in the manner therein before directed, during the land is charged with it by way of distress. the natural life of his wife and children, and Co. Litt. § 221. So, if it is said that A., if not until the death of the survivor of them. The paid so much per annum, shall distrain for it rule is that, unless it appears it was intended in the manner of B. Id. So, a devise of by the testator to charge the payment of the rent, with power to distrain at the usual annuities upon the corpus of the estate, they feasts, will be a rent-charge, though no par- can only be enforced against the trustee perticular lands are mentioned. Kingswell v. sonally, so far as he has received the rents. Cawdrey, Moore, 592. So, a grant of rent The fee in the realty, whether for life or for out of B., and, by the same or another deed, years, cannot be sold for their payment. distress is granted for it in other lands. It win v. Wollpert, (Ill.) 21 N. E. Rep. 501; is a rent-charge, issuing solely out of B., Delaney v. Van Aulen, 84 N. Y. 16; Nudd though distress be in other lands. Co. Litt. v. Powers, 136 Mass. 276; Baker v. Baker, 147a. So, too, a grant or reservation of rent, 6 H. L. Cas. 616. Whatever, therefore, may, with power of distress and re-entry, were in other respects, be the effect of the deed held to create a rent-charge. Hurst v. Lith- of assignment of Francis T. Sherman, the grow, 2 Yeates, 24; Bantleon v. Smith, 2 deed of the assignee in bankruptcy to Hugh Bin. 146; Gordon v. Correy, 5 Bin. 552. And A. White, and the deed of Hugh A. White herein lays the distinction between rent- to De Haven, it is impossible that they charge and rentseck. The latter was where rent was reserved or created without clause for distress; and hence the name "rentseck." redditus siccus,) a dry rent. Co. Litt. §§ 217, 218. And, if not paid, the grantee's only remedy was an action at law therefor.

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can have the effect of passing a freehold in the Sherman House property to De Haven. It hence follows that, under the eighty-ninth section of the Practice Act, (2 Starr & C. St. 1842,) the appeal should have been to the appellate court of the first district, instead of te

this court. The appeal is accordingly dismissed, at appellant's costs, and leave is given to her, if she shall so desire, to withdraw record, abstracts, and briefs, for the purpose of filing them in the appellate court. Appeal dismissed.

(130 I11. 551)

and seventh counts of the declaration did not state the law correctly, or state such facts as would show a legal liability on the part of the appellant, the instruction was improperly given. The second count of the declaration alleges the failure of the defendant to keep a competent person at the top and bottom of the shaft to attend to signals, and that Maehl was killed by reason of defendant's failure to discharge that duty, while the statute requires only that such person be so placed 1. In an action against a coal company for an while coal is being hoisted, or within 30 accident in its mine causing the death of an em- minutes before or after that operation begins ploye, an instruction which correctly recites the and concludes; the fact proven being that precautions which the statute requires coal-mine owners to use, and directs the jury to find defend coal was not being hoisted, and that it was ant guilty if the accident was caused by its will- an hour and a half before the hoisting would ful failure to comply with the "provisions of said begin when Maehl was killed. The seventh statute, as stated in said declaration," is not prej-count proceeds on the same theory. udicial error, though some counts of the declaration do not show any violation of the statute.

CONSOLIDATED COAL Co. v. MAEHL. (Supreme Court of Illinois. Oct. 31, 1889.) NEGLIGENCE OF MASTER-DAMAGES-TRIAL.

3. Allowing defendant's engineer to testify as to his want of experience when he was first employed by defendant, two months before the accident, is not prejudicial error, where the jury specially find that the accident was not caused by the engineer's negligence.

We are of opinion that the criticism of the

2. An instruction allowing the jury, in estab- instruction in the respect stated is not warlishing damages, to take into consideration that ranted. It begins: "The court instructs the the deceased left a wife and children, is not preju-jury that the statute of this state makes it dicial error, when accompanied with another instruction, limiting the damages to plaintiff's pe- the duty of persons and corporations operatcuniary loss. ing coal mines by shafts and steam power, among other things-First, to provide safe means of hoisting and lowering persons in a cage, covered with boiler iron, so as to keep safe, as far as possible, persons descending 4. Rev. St. Ill. 1889, c. 110, § 58a, which prointo and ascending out of such shaft; and, vides for special findings "upon any material second, to provide every drum with a suffiquestion of fact, "does not require a judge to sub-cient brake to prevent accident in case of the mit to the jury questions as to defendant's negligence in regard to a particular act, when evidence as to such negligence has been refused admission, and the proof of it abandoned by the plaintiff. 5. Where a jury, which has, by agreement, been allowed to separate, after finding a sealed verdict, fails to return special verdicts as directed, it is proper for the judge, on the reassembling of court, to require the jury to retire again, and return a proper verdict.

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SHOPE, C. J. This suit was brought in the Macoupin circuit court by appellee to recover pecuniary damages for the loss occasioned by the death of her husband, John Maehl, at the mines of appellant, as it was alleged, through the negligence of appellant, and its failure to perform its legal duty in respect of said mines and the operation thereof. A trial resulted in a verdict for plaintiff for $5,000. Motion for new trial was overruled, and judgment entered on the verdict. On appeal to the appellate court this judgment was affirmed, and the defendant below prosecutes this further appeal.

Four reasons are urged why the judgment should be reversed, which we will notice in the order presented by counsel:

First. That the court erred in giving the first of plaintiff's instructions. The first criticism of the instruction is that it tells the jury to find the defendant guilty if they believe from the evidence it violated any of the provisions of the statute, "as stated in the declaration;" and that, as the second, fourth,

giving out of the machinery; third, to furnish a sufficient light at top and bottom of the shaft to insure, as far as possible, the safety of persons getting on or off the cage; and, fourth, not to place in charge of any engine whereby men are lowered into or hoisted from the mine any other than a competent, experienced, and sober engineer, not less than eighteen years of age." No fault is found with the statement of the requirements of the statute, but, as before seen, it is objected that the jury was referred generally to the declaration for the law. A casual reading of the instruction will demonstrate the fallacy of this contention. After stating the duty of persons operating such mines, as before stated, the instruction then tells the jury that if they believe from the evidence that the defendant was operating the mine, and that Maehl was killed, in the manner alleged; that he left plaintiff as his widow, etc.; and that Maehl was in the service of defendant working in said mines,-proceeds, "and if the jury believe further from the evidence that at the time said Maehl was so killed the defendant then and there willfully refused, or willfully failed, to comply with its duty under the said provisions of the said statute, or willfully violated any of the said provisions of the said statute, as stated in said declaration, and the death of Maehl was caused by reason of such willful refusal or willful neglect, and damage is found from the evidence to have accrued to plaintiff, then they should find defendant guilty," etc. The instruction is incorrectly given in the abstract; but upon looking at the record it is found that the attention of the jury is alone directed to the

provisions of the statute, or requirements of want of experience and competency at the it, stated in the forepart of the same instruc- time of his employment, and to what protion. The statutory obligations were first ficiency he had attained as an engineer in given, and the jury told that if they believed that time. This, it is insisted, was error, and from the evidence that defendant had will- tended to the prejudice of appellant. We fully failed to comply with its duty, or will- think that, in so far as it tended to show his fully violated said provisions of said statute, capacity at the time of the accident, it was as (in the manner) alleged in the declaration, clearly competent. It was for the jury to say, the defendant will be liable, if the other nec- if they found that the injury resulted through essary facts concurred. It seems impossible the fault or negligence of the engineer, that the jury could have understood this in- whether he was a competent, experienced, struction in any other way. It is to be ob- and sober engineer, such as appellant was reserved that the instruction omits any refer- quired to place in charge of its engine, used ence to the statutory duty to keep at the bot-in lowering into or hoisting persons from the tom and top of the shaft, while coal is being mines. His previous training and experihoisted, and for 30 minutes before such hoist-ence, or want of it, would furnish one means. ing is to begin, a competent person to attend signals; and the jury could not, we think, have understood the instruction as in any way referring to the matter alleged in the second and seventh counts of the declaration. This view becomes more pronounced, when we consider that the first witness who testified in respect of the condition of the mine and the injury to Maehl showed that the injury occurred at a time when no signal-men were required by law to be kept at the shaft, and thereupon the court, on the objection of appellant, refused to permit appellee to prove that no signal-man was on duty, and the record is barren of any evidence on that subject. While the instruction in the form given is not to be commended, we are unable to perceive prejudicial error in the respect indicated.

It is also urged that this instruction is faulty in further stating that, "if the jury further believe from the evidence that the plaintiff has been damaged by reason of the loss of the life of the said John Maehl, then the jury will find the defendant guilty," and in "estimating said damages the jury may take into consideration that Maehl left surviving him said children, in addition to the plaintiff, his widow." Whether said Maehl had left children, and plaintiff, as his widow, had in a former portion of the instruction been left to the jury to be found from the evidence. It is not claimed that the inclusion of the element in respect of the children is erroneous, (Beard v. Skeldon, 113 Ill. 584;) but it is said that the jury are thereby left free to award damages for all loss, not confining it to pecuniary damage.

It is conceded that the instruction is not accurate, but it was not intended as an instruction upon the measure of damages, while the next instruction was so intended, and states the rule clearly and correctly. Taking the two instructions, the law was stated with substantial accuracy, and the damages properly limited to the pecuniary loss sustained by the plaintiff. There was, therefore, no prejudicial error in this regard. Second. The engineer testified that he had run the engine connected with the hoisting apparatus at this mine for two months prior to the injury of Maehl, and, over appellant's objection, was permitted to testify to his

by which a conclusion might be reached. But, aside from this, the jury, by their second special finding, expressly found that Maehl's death was not caused by the negligence of the engineer, and it cannot be seen that this evidence, if improper, could have prejudiced appellant.

Third. Appellant requested the submission to the jury of five questions, to be answered by special verdicts. The court gave two of them, but refused the first, second, and third thereof, which are as follows: "(1) Was Machl's death caused by the willful neglect of defendant to place a man at the bottom of the shaft, for the purpose of preventing men from carrying tools or material with them on the cage? (2) Did the accident by which Maehl was killed occur more than thirty minutes before the hoisting of coal commenced in the morning of that day, and more than thirty minutes after such hoisting had ceased for the night before? (3) Was Maehl's death caused by the willful neglect of defendant to place a man at the top of the shaft, to attend to signals?" This refusal is assigned for error. We have to some extent anticipated

the answer to this contention. It is manifest that the failure of the defendant company to keep a competent person at the top, and another at the bottom, of the shaft was not insisted upon. The evidence, as already said, tending to prove a failure in this respect had been refused admission. The plaintiff, in her instructions, when giving the legal duty of the defendant, had, as we have seen, wholly omitted any mention of the duty to so keep persons at the shaft, and we think the court, in the exercise of its discretion, was warranted in holding that the special findings requested and refused were not, "upon any material question or questions of fact," within the contemplation of the act in relation to special verdicts. Rev. St. Ill. (Ed. 1889,) c. 110, § 58a. While the finding of the appellate court as to questions of fact is binding and conclusive upon this court, we have, as we may, to determine whether the law has been correctly applied, looked into the facts; and it is, as said by the appellate court, apparent "that all other charges in the declaration, except that of defective machinery and want of lights, were practically abandoned during the trial."

We

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are of opinion that the court did not err in 16 is and has been a public highway for over refusing the requests for such special find- 40 years, known as the Lake Shore Road.' ings. During the life-time of said Miller he sold Fourth. After the case went to the jury, several pieces of land in this said tract, which, by agreement of the parties, the jury, when by a series of deeds, are now held, one piece they had agreed upon a verdict, were per- by one Ann Robbinson, another by one Nick mitted to seal their verdict and separate, and Pitts, another by this plaintiff, and two othmeet the court on the following morning. On er pieces by the defendant, Daniel Titus. the reassembling of court the jury were pres- That when said pieces of land were first sevent in court, and answered to their names, erally sold by said Miller there was and still and the sealed verdict was handed to the is no public highway by which ingress and judge, who, upon opening the same, and egress can be had to or from said land. That, finding that the jury had failed to return the for the purpose of rendering said lands accessspecial verdicts required, against the objec-ible by teams and vehicles, said Miller opened tions of appellant, ordered the jury to retire and constructed a lane or way to each piece of and further consider of their verdict, and to land so sold, to-wit, a lane or way commencing return answers to the three questions sub-on said Lake Shore road and running south to mitted for special verdicts. Upon their re- the north line of section No. 5. That said turn into court the court read the general and lane or right of way was opened and laid out special verdicts, and polled the jury, each of for the benefit of said several grantees, their whom answered "that these were their ver- heirs, administrators, and assigns, and all dicts." It is apparent the jury were not persons wishing to travel the same to reach discharged. They were to meet the court at said land. That said Miller also, at the time the hour of convening on the following he established said way, was the owner of morning, and were in attendance. It was, about 10 acres of land situated in said section we think, correct practice for the court to re- 5, and at the south end of said lane, being one quire them to again retire and return proper one of the pieces now owned by said Daniel verdicts, and, having done so, to discharge Titus, and that said lane furnished the only means of getting to and from said ten acres. Plaintiff says said right of way or lane has been used, traveled over, and occupied for the purpose of reaching said several pieces of land for the past twenty-five years, with the assent, acquiescence, and knowledge and agreement of said Miller and his several grantees and their assigns, to whom he has conveyed the premises over which said way runs. That prior to the year 1875 one Joseph Fretter, by purchase, became the owner in fee of said ten acres of land in sec. No. 5 and of the land now owned by said Daniel Titus in sec. No. 6. That in that year 1875 the said Joseph Fretter, Ann Robbinson, Andrew Seifert, and this plaintiff, being at that time the owners of all the land over which said lane ran, for

them.

Finding no error in this record, the judgment of the appellate court will be affirmed.

(46 Ohio St. 528)

SHIELDS v. TITUS.

(Supreme Court of Ohio. Oct. 29, 1889.) WAYS-MUTUAL AGREEMENT-INJUNCTION. 1. A way, laid out by an owner over his lands for the benefit of parcels thereof, into which he subdivided them for sale, the boundaries of which way the purchasers of the several parcels definitely establish by mutual agreement, and thereafter improve and use it for the benefit of their lands, is an easement annexed to the lands, and passes by a grant of the land without being mentioned in the conveyance. The grantee takes the rights his grantor had with respect to it, and holds his land subject to the burden it imposed.

2. Where proprietors of adjacent lands, by mutual agreement, definitely establish the boundaries of a private way previously laid out along their lines, and appropriate the strip of land embraced therein to be used as a perpetual easement for the benefit of the abutting lands of each, and the common benefit of all, and, in pursuance of the agreement, fence to the boundaries so agreed upon, and thereafter improve and use the way thus established, the agreement may be enforced in equity, at the suit of a purchaser from one of such proprietors, against a purchaser with notice from another. Injunction, preventing the permanent obstruction of or interference with such way, is a proper mode of enforcing the agreement. (Syllabus by the Court.)

Error to circuit court, Lorain county. The plaintiff in error commenced his action against the defendant in error and Adam Seymour in the court of common pleas of Lorain county, by filing therein the following petition: "Plaintiff says that Alexis Miller, now deceased, was the owner of a large tract of land situated in sec. Nos. 5 and 6 in Avon township, Lorain Co., Ohio. That sec. No. 6 is bounded on the north by Lake Erie, and that along near the north side of said sec. No.

the purpose of settling definitely the width and exact location of said way, mutually agreed between and among each other that said way should be thirty feet wide its entire length.

That thereupon, by virtue of said agreement, each of said parties built fences. along the sides of said way, to-wit: Said Fretter built a fence 30 feet west of his said east line, and Robbinson built a fence 30 feet west of the east line of about ten acres of land, and said plaintiff and said Seifert each built a fence fifteen feet east of the center of said lane across their respective farms; and said Robbinson also built fences 5 feet west of said center of said lane across the remaining part of her said farm, thus making a lane 30 feet wide, extending from said Lake Shore road south to the south line of sec. 6. That large ditches were constructed, bridges built, and said road was otherwise worked and improved. That afterwards said Joseph Fretter sold and by deed conveyed all his interest in any land in said sections Nos. 6 and 5 to the defendant Daniel Titus. Plaintiff

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his life-time in section six two small pieces, one to Aaron H. Bullock and one to Evan Richards, and conveyed the same to them, respectively, by deeds; that the one, six acres, sold by said Miller to said Richards, is now owned and occupied by one Catherine Pitts, and the one sold to said Bullock is now owned and occupied by the plaintiff; that across the

says the land so sold to defendant Titus, in | ship in said county, out of which he sold in section No. 6, is bounded as follows: On the north by the Lake Shore road, on the east by land owned by Thomas Shields, formerly owned by A. H. Bullock, on the south by land owned by Ann Robbinson, and on the west by land owned by P. J. Miller. That said 30-foot lane runs over and across the east side of said land last above-described. Said Robbinson's land is just south of above-de-northerly part of said section six there is, and scribed land, and the land so owned by said Seifert and said plaintiff in 1875 is adjoining said Robbinson's said land on the east. Plaintiff says in the year 1875 he sold and conveyed all his right in his said premises to said Nick Pitts, who is still in possession, and the owner thereof. That in the year 1878 he purchased the said farm of said Seifert, and now is in possession thereof, and the owner in fee. That said lane now furnishes, and has for 25 years, the only way to get to and from the land now owned by the said Robbinson, Pitts, and plaintiff. That defendant Titus, when he purchased his said land of said Fretter, well knew all and singular the facts above set forth, and bought said premises subject to the perpetual right of plaintiff and the several owners of said several tracts of land, their heirs, administrators, executors, and assigns, to use, enjoy, occupy, and travel said lane its entire length with wagons, vehicles, and whatever conveyances, and when necessary, to fully enjoy their said land. That defendant Adam Seymour claims some interest in the said farm of said Titus, by lease or otherwise. Plaintiff says that notwithstanding the facts above stated said defendants, Titus and Seymour, now claim that said plaintiff has no right, title, or interest in and to the possession or use of said lane or right of way. That they each now refuse to allow him to enter upon the part of said lane lying on the east side of the farm of said Titus, and threaten to forcibly eject him and his teams therefrom, and threaten to fence up the same, and threaten to and have already sued him for trespass for entering upon said lands with his teams, and threaten wholly to deprive him of the use of the same. Wherefore plaintiff asks that on the final hearing hereof he may be quieted in his right to the enjoyment of said right of way, as above set forth, and be decreed to have the right to use and enjoy the same, together with his heirs, administrators, executors, and assigns of said premises so owned by him, and that said defendants, their heirs, administrators, and assigns, may be forever enjoined from interfering with the use and enjoyment thereof for the purposes as above set forth, and for such other rights and equities that the court can give and law requires."

A general demurrer to the petition was overruled, and thereupon the following answer was filed: "The defendant Daniel Titus, for answer to the petition of said plaintiff, says he admits that one Alexis Miller, deceased, in his life-time owned a tract of land in sections five and six in Avon town

for many years last past has been, a public highway known and called The Lake Shore Road;' that the said Miller, in the sale of said six acres to said Richards, did agree and covenant with said Richards that each should throw out fifteen feet of land, respectively, across said six acres for a private way, so that said Miller could reach his lands in said section five, and that the said Richards should have the right and privilege, together with his heirs and assigns, in consideration of said purchase and the throwing out of said fifteen feet from the west side of said six acres, of traveling in a northerly direction over and across the premises to and from said Lake Shore road at all times for the free use and enjoyment of said six acres; that one Ann Robbinson now holds, by a land contract, as defendant is informed and believes, and avers the fact to be about sixty acres of land, formerly owned in said sections five and six by said Miller, and has no way of ingress thereto and egress therefrom except of necessity over this private way to said Lake Shore road. Defendant says that he owns a small piece of said land so owned by said Miller in section five, and all of section six so owned by said Miller, north of lands as aforesaid by Ann Robbinson, and west of land of the plaintiff, and lying between the lands occupied by said Robbinson and the Lake Shore road aforesaid; that the land of the said plaintiff lies next east of his and fronts on said Lake Shore road, which said road gives said plaintiff ample, free, and easy access to his said premises, and every part thereof. Defendant, further answering, says that at the time said Miller sold said premises to said Bullock no grant was conveyed to said Bullock to pass and repass over the premises now owned by this defendant, by deed or otherwise, and none existed of necessity, and at the time said Bullock conveyed the same to said plaintiff no right to pass or repass over and across the premises of this defendant through this private way aforesaid was conveyed to him, either by grant, implication, or of necessity. Defendant avers he purchased said premises of one Joseph Fretter, free and clear of all incumbrances, except the private right of way of said Catherine Pitts by grant, and of the said Ann Robbinson of necessity; and defendant avers his said premises are free and clear of any incumbrance, right of way, or servitude to the premises owned and occupied by said plaintiff. Defendant admits he has denied, and still denies, said plaintiff's right to travel over said private right

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