tions: "The balance of the purchase-money must be paid to the sheriff at his office, within ten days from the time of sale, without any demand being made by the sheriff therefor; otherwise the property may be sold again at the expense and risk of the person to whom it is struck off, who, in case of any deficiency at such resale, shall make good the same." A. having failed to pay the balance of the purchase-money, the property was resold to B. for $1,600. He also failed to comply with the conditions, and at a third sale C. purchased at $100, and received his deed. In a suit by the sheriff against A.: Held, that he was entitled to recover the difference between the purchase-money paid by C. and the amount of A.'s bid, less $50 paid at the time of the first sale. 2. A purchaser at sheriff's sale who fails to pay the purchase-money within the time limited by the terms of sale, is not relieved from his liability to the sheriff by the fact that there is a second sale, at which the property is struck off at an increased price, unless the purchaser at the second sale pays in his purchase-money Opinion PER CURIAM.-Schoening v. Leeds, 7 W. N. 243.

NEGLIGENCE-DUTY OF CARRIERS OF PASSENGERS AND PASSENGERS-BURDEN OF PROOF.-1. It is the duty of a railroad company to provide safe and reasonably convenient means of ingress and egress to and from its cars; it is the duty of passengers to use the means thus provided with reasonable circumspection and care. 2. The general rule is that a party who alleges negligence as the basis of a claim for damages is bound to prove the fact alleged, and the extent of the injury, if more than nominal damages are claimed; but in some cases slight proof only is required to justify a presumption of negligence. 3. But if a passenger, seated in a railroad car, is injured in a collision, or by the overthrow of the car, the breaking of a wheel, axle, or other part of the machinery, he is not required to do more in the first instance than to prove the fact, and show the nature and extent of the injury. A prima facie case is thus made out, and the onus is cast upon the carriers to disprove negligence. 4. While in the aet of alight. ing from the lower step of a railroad car to the ground, a passenger was injured by fracture of the knee-cap, the result of the apparent strain of stepping down the distance variously estimated at from eighteen to twenty-nine inches. The train had reached its destination, and the passenger was assisted in alighting by her husband on a spot where many thousand passengers had previously done so in safety. Held (reversing the judgment of the court below), that the facts did not raise the presumption, prima facie, of negligence in the defendant, and throw on it the burden of disproving negligence; but that the case was governed by the general rule that he who alleges negligence as the basis of a claim for damages is bound to prove it affirmatively. Opinion by STERRETT, J. MERCUR and GORDON, J.J., dissent. SHARSWOOD, C. J., and PAXSON and WOODWARD, J.J., concurred in judg ment, but were of the opinion that there was not sufficient in the facts disclosed by the testimony to justify their submission to the jury.-Delaware, etc., R. Co. v. Napheys, 7 W. N. 233.

SUPREME COURT OF ILLINOIS.

[Filed at Springfield June 20, 1879.]

PRACTICE JUDGMENT FOR TOO LARGE AMOUNT -REMITITTUR -COSTS TO BE TAXED AGAINST REMITTING PARTY.--This is an appeal from the appellate court of the third district. The suit was upon a promissory note, and judgment was rendered in the

circuit court for $1,195, when in fact the evidence showed that the amount of the judgment should have been only for $1,185. In the appellate court a remittitur was entered for $10, and thereupon the judgment of the circuit court was affirmed for the remainder, and the cost of the appeal were taxed to the appellant in that court, who is also the appellant here. SCHOLFIELD, J., says: "There can, on the authority of decisions of this court, be no question but that the judgment was erroneous. We have held, where a judgment is taken for too large an amount in the court below, and the excess is cured by a remittitur in this court, the party entering the remittitur must pay all costs incurred in this court up to the time of entering the remittitur. See 72 Ill. 619; 79 Ill. 351; 78 Ill. 611. This, however, affects only so much of the judgment as relates to the question of the costs of the appeal in the appellate court. The balance of the judgment is correct." Affirmed in part and reversed in part.- Snell v. Warner.

MORTGAGE-INACCURATE DESCRIPTION IN DEED -EVIDENCE OFFERED TO LOCATE THE LAND-ORAL EVIDENCE.-The bill in this case was to foreclose a mortgage made by Abram Cornwell, since deceased, his wife joining with him, in premises described as follows: "A certain tract or parcel of land containing about seventy acres, being a part of the E. 1-2 S. E. 1-4 sec. 17, 721 N. R., or however else the same may be bounded or described," to complainant to secure the promissory note of Cornwell. SCOTT, J., says: "Although the bill asks that the mortgage may be reformed and corrected so as to show a more accurate and definite description of the premises embraced in the mortgage, it is conceded that it can not be reformed as against the wife of the mortgagor. We do not understand that it was the purpose in introducing testimony to have the mortgage reformed, but it was simply to aid in locating the land by the description contained in the mortgage, and that is allowed under the decision in Colcord v. Alexander, 67 Ill. 584. That is not in fact reforming the mortgage as to the wife of the mortgagor or any one else. It was attempted to prove that the mortgagor owned the whole of the tract described, and that prior to the execution of the mortgage he had conveyed a part of the same, which deducted would leave about 'seventy acres.' But the testimony offered to prove that fact, we think was not the best evidence admissible for that purpose. The only evidence on that question was the oral testimony of H and the abstract of title made by him. The witness, as we understand the record, was permitted to state what the record showed. That was not allowable under any rule of evidence with which we are familiar. The deed itself or the record would show what land was in fact conveyed. On account of the admission of improper evidence the decree is reversed."-Cornwell v. Cornwell.

SUBSCRIPTION-LIABILITY FOR WHERE NO PAYEE EXPRESSED-CONDITION-BONDS ISSUED TO BUILD COURT HOUSE. This was an action of assumpsit brought by the City of Virginia against Robert Hall. The declaration contains the common counts. On the trial plaintiff recovered a judgment. Defendant appeals, and the case comes up here on an agreed statement of facts, viz.: 1st, that the defendant signed the following: "We, the undersigned, agree to pay the amount set opposite our names, for the purpose of building a house, in the public square, in the town of Virginia. Ill., to be donated to Cass county for county purposes, in the event of the removal of the county seat from Beardstown to Virginia;" 2, that a building was built in the public square after said subscription was signed, and that said building was leased by the City of Virginia to Cass county for a period of ninetynine years for court-house purposes; 3, said building

was built at the expense of said city of Virginia, including moneys collected in said subscription; 4, that the defendant never paid any portion of this subscription; 5, that the city of Virginia issued bonds to erect said buildings and that said bonds are now outstanding; 6, that the building is used as a court house and that the connty seat was removed to Virginia; 7, that the city of Virginia expended money in building said court house in part upon the faith of said subscription of defendant." The first ground relied upon by defendant is that the subscription paper contains no payee. CRAIG, C. J., says: "We understand the doctrine is settled in this State that the party who advances money as did the city of Virginia in this case on the faith of the subscription becomes the proper promisee or payee. See 43 111. 356. It is also urged that the court house has been leased to Cass county, and not donated, and hence the conditions upon which defendant subscribed not having been complied with the money is not due. The defendant's agreement was to pay the money for the purpose of building a house to be donated to Cass county, not on condition the donation was made; besides a leasing for ninetynine years when no rent is required to be paid may be regarded as a substantial compliance with the specification. It is next urged that the city of Virginia had no right to issue bonds and erect the building. It is doubtless true a city or incorporated town can not incur a debt or liability for other than corporate purposes, but the question whether the city of Virginia is legally liable for the payment of the bonds it has issued, can not be raised by the defendant in this action. We are not aware of any authority which would sanction the right of this defendant when sued upon a debt of his own contracting interposing a defense of that character. The judgment of the court below was for the amount of subscription and interest. The latter was erroneous, as there is nothing in the record upon which a judgment for interest can be based." Reversed.-Hall v. City of Virginia. PRACTICE IN SUPREME COUCT APPEAL FROM APPELLATE COURT FINDING FACTS-DETERMINATION OF QUESTIONS OF LAW AND NOT OF FACT.The appellate court having determined that the evidence preserved in the record sustains the finding of the jury in this case, we must under the statute consider the verdict conclusive of the facts. Regarding the facts as settled, we can only look to ascertain whether the court erred in its rulings and in giving or refusing instructions. This is the practice established. by the act of 1877. The 89th section of that act expressly limits the power of this court on appeal or error to the determination of questions of law, and prohibits the assignment of error which shall call in question the determination of the inferior or appellate courts upon controverted questions of fact, excepting in the cases enumerated in the preceding section. The cases referred to in that section are criminal cases and cases involving a franchise, or a freehold, or the validity of a statute. This case does not fall within either of the enumerated classes, and it must therefore be governed by the 89th section of the act. This legislation has restored the practice as it was before the statute authorized the assignment of error on the verdict of the jury. It takes from this court the consideration of facts, unless it be to determine whether the law has been properly applied to the facts. The finding of the facts by the appellate court must be considered by us as conclusive. Where the evidence is returned to us in a bill of exceptions, we may no doubt look into it for the purpose only of determining whether instructions are properly given, modified or refused. But when the appellate court certifies that there was evidence tending to prove a particular controverted point, we can determine as accurately whether the law has been properly ap

plied as when all of the evidence is brought to this court in the transcript. And such a certificate is greatly preferable, as it does not incumber the record and reduces the expense of litigation very largely. Thus it will be seen that it is wholly unnecessary in a case of this character to embody the evidence in the transcript brought before us. Where an instruction is given we will presume, unless the certificate of the appellate court is to the contrary, that there was evidence upon which to base it. And when an instruction is refused we will presume that the facts did not require it, unless the certificate shows there was evidence upon which to base it. When the certificate states there was evidence tending to prove an issue of fact, we can readily determine whether an instruction is properly given, modified or refused. And the appellate court can readily certify that there was evidence upon which to base the instruction, or if not which were given without such evidence. Or the certificate can state that the evidence tended to prove specified facts from which legal propositions can be raised on the instructions. When evidence has been offered and admitted or rejected, the certificate with the pleadings will readily disclose the question as to whether the ruling of the court was correct. In such a case it is unnecessary to present all of the evidence, and to do so would be improper practice." Opinion by WALKER, J.-Wabash R. Co. v. Henks.

BOOK NOTICES.

[NEW BOOKS RECEIVED. Missouri Appeal Reports. Vol. 5: F. H. Thomas & Co., St. Louis; Jacob's Fisher's Digest. Vol. 1: Geo. S. Diossy. New York; United States Digest. Vol. 9: Little, Brown & Co., Boston; Jones, on Mortgages, 2d Edition; Houghton, Osgood & Co., Boston; Rogers' Law of Hotel Life: Houghton, Osgood & Co., Boston.]

REPORTS OF THE COURTS OF THE B. BRADWELL. News Co.

1879.

DECISIONS OF THE APPELLATE
STATE OF ILLINOIS. By JAMES
Vol. III. Chicago: The Legal

The third volume of this series contains a portion of the opinions of the first district of the March term, 1879; all the remaining of the second district up to the June term of this year, and of the third district up to the May term, 1879; and all the opinions of the fourth district from the organization of the court up to the July term, 1879.

Nearly 150 cases are nere reported, and among them we find the following rulings of general interest: In an action against a railroad for killing stock, the bad condition of its fences at other places than where the stock got upon the track is irrelevant.-Chicago, etc. R. Co. v. Fanelly. The defendant's bar tender sold liquor to B, and an altercation ensuing, threw a glass at B, which missed him and injured plaintiff: Held, that the injury was not the proximate consequence of the sale of the liquor.-Lueken v. People. The offer by an association of a purse of $600 divided into four parts, to be given to the winning horse of a race to be run under the rules of the association, is not within the statute against gaming. Wilson v. Conlin. To render the owner of a vicious dog liable, it is not necessary that he has previously bitten others; it is enough to show that there was within the owner's knowledge a probability that he might do so. Flansburg v. Basin. When damages for loss of profits may be recovered in actions of tort.-Illinois, etc. R. Co. v. Decker. The personal liability of directors and officers of corporations for indebtedness exceeding the capital stock, can be enforced only by the creditors as a whole, and not by an individual creditor for the amount of his debt. Buchanan v. Barlow Iron Co. An attorney ac

cepting employment in a case, can not abandon it because fees due to him in another case have not been paid. Cairo, etc., R. Co. v. Koerner. Scire facias to revive a judgment is an "action" within the meaning of that word in the statute of limitations. Gibbons v. Goodrich. To sustain an action for separate mainteance, two facts must concur-the complainant must be living apart from her husband, and must be so living without fault on her part. Jenkins v. Jenkins. Punitive damages may be allowed in actions for slander of title. Van Tuyl v. Riner. The volume is excellently printed, and the paper and binding are both good. The work of the reporter is fully up to the standard of the previous volumes.

in January, '76,'executes a mortgage to B on his lot for $1,000. B, in February, '77, forecloses and obtains judgment of foreclosure. A, in March, '77, sells his property to C, warranting, except as to the judgment and foreclosure of B on said property. Cand wife execute a mortgage in April, '77, on the same property to D for $600, to secure a joint note given by B and C to D. In May, '78, D forecloses and obtains judgment against B and C and decree of foreclosure. In June, '78, B assigns the decree of foreclosure he obtained against said property in February, '77, to E. In July, '78, D sells the property in question, by virtue of the decree he obtained under special execution against B and C. Query: What are E's rights under the decree of foreclosure and judgment assigned to him. A. W. E.

ANSWERS.
No. 16.

[9 Cent. L J. 120.]

"Not only is a surety who pays his principal's debt entitled to a transfer of securities held by the creditor, but he is in all respects entitled to all the equities which the creditor could have enforced." De Colyar on Guaranty and Suretyship, by J. A. Morgan, p. 330. See 23 Ohio St. 483, for general discussion of rights of surety. KANSAS.

No. 35.

[8 Cent. L. J. 508.]

Α

The question of law submitted in this query is a new one to the Missouri bar. In answer thereto, I will' give the action of the Circuit Court of Grundy County, at its August term, 1879, together with a brief statement of the case. The members of the bar that heard the case tried, believe the court declared the law correctly. S. purchased a horse from C., for which he agreed to pay $60 in work. S. built a house and barn for C., which amounted to $169. During the progress of the work C. paid S. various items of produce, which, together with the horse, amounted to $184. C. brought suit before a justice of the peace on the account, and recovered a general judgment for $15 with costs. general execution was issued thereon, under which the officer seized and sold the horse. S. claimed all his property as exempt from execution. S. sued the officer on his bond in the circuit court, and at the trial it was admitted that the horse was exempt, unless he could be held under the provisions of the act of March 31st, 1874. See Mo. Sess. Acts of 1874, p. 118. The court gave the following instruction: "The finding must be for the plaintiff, S., notwithstanding the court, sitting as a jury, may believe that the horse in controversy was sold by C. to the plaintiff; unless the court further finds from the evidence that the judgment upon which this execution issued was rendered alone for the balance of the purchase price of said horse," R. A. D.

NOTES.

THE death of Mr. Proffatt will in no way affect the future of the American Decisions. A. C. Freeman, Esq., the well known author of "Law of Judgments," "Law of Executions," "Law of Co-tenancy," "Void Judicial Sales," "Enforcement of Judgments Against Bankrupts," etc., has been called to the chair made vacant by the death of the editor-in-chief. The publishers have issued a circular in which they say: "The assistants, who were with Mr. Proffatt from the commencement of the work, are all retained by the new management, and we congratulate the profession upon our having secured Mr. Freeman, ensuring, as it does the same high standard in the future volumes as in the past."The Chief Justice of England, in a recent letter on the subject of the proposed criminal code, expresses himself thus on the subject of codification: "I have long been, for reasons on which it is unnecessary here to dwell, a firm believer in not only the expediency and possibility, but also in the coming necessity of codification; and I have rejoiced, therefore, at the favorable reception which the proposal to codify our criminal law has received from the press as of good omen. But it would, I think, be much to be deplored if the eager desire to see the law codified entertained by the public-of whom few have, perhaps, taken the trouble to study the details of the measure, and still fewer are in a position to appreciate the legal difficulties which present themselves-should lead to the adoption of a statement of the law still imperfect and incomplete. For not only would this be a misfortuue as regards the work itself, and administration of justice under it, but any failure in this, our first attempt at what can properly be termed a code, would engender a distrust of this method of dealing with the law which would retard all further attempts at codification for an indefinite period."

THE legislature of New Hampshire has passed an act for the protection of the rights of holders of the bonds of repudiating States which may have important results. It provides that whenever any citizen of the State "shall be the owner of any claim" against any other State" arising upon a written obligation to pay money" which is overdue and unpaid, the holder may assign his claim to the State, and deposit the assignment with the attorney-general. Upon this deposit being made, it is to be the duty of the attorney-general to examine the claim and the evidence on which it rests, and if it is in his opinion good, to bring suit upon it in the name of the State in the Supreme Court of the United States. The expenses of the prosecution are to be paid by the owners of the claim. This is substantially the same act that was passed by the legislature of this State a year ago, and vetoed by the Governor. The legal theory on which it rests is very simple. The Constitution forbids suits being brought againsts States by citizens of other States, but not by States themselves, and the courts, while bound to protect a State from a suit of the prohibited kind, have always recognized the binding character of contracts made by States If there is any way of enforcing these they will always be enforced. The difficulty in the way of suing a State is merely technical, and if the technical difficulty can be removed there is no reason why a suit should not be maintained on a State bond as on any other form of obligation. All courts recognize the duty ot a State to protect its citizens, and, consequently, if a State assumes the prosecution of elaims on the defaulted bonds of other States there is every probability that the Supreme Court will favor the suit. On the other hand, it may be said that if a State can assume any claim of its citizens, and sue upon it at Washington, the immunity of States from private suits is practically gone.-The Nation.

claimed to have any knowledge of the case; had no

SAINT LOUIS, AUGUST 29, 1879.

CURRENT TOPICS.

Under what circumstances the formation or expression of an opinion is a ground for challenge, is a question which the courts have found much difficulty in answering. The case of Waters v. State, 7 Wash. L. R. 344, decided at the last term of the Court of Appeals of Maryland, presents the latest as well as the most sensible discussion of the point in dispute that can be found. The appellant, being on his trial for murder, one Biscoe was called as a juror, and sworn on the voir dire. To the question: "Have you formed and expressed an opinion as to the guilt or innocence of the prisoner at the bar," he replied, "I have." In answer to questions then propounded to him by the court, he stated that such opinion was formed solely from what he had read of the case in the county papers at the time of the commission of the crime, and from mere rumor,

and that he did not know whether said pub

lication and rumor were true or false; that he resided more than thirty miles from the place of the commission of the alleged crime; that he had not conversed with any witness in the case, nor with any person who claimed to have any knowledge of the facts of the case, nor with any one who professed to detail to him any portion of the testimony in the former trial; that he had no prejudice or bias for or against the prisoner, and he felt confident that he could give the prisoner a fair and impartial trial according to the evidence produced upon the stand by the witnesses. The court thereupon decided that the said Briscoe was a competent juror, and this ruling was affirmed by the Court of Appeals. ROBINSON, J., after eviewing the decisions on the subject, said: Amid such conflicting opinions we must be governed, after all, by the reasons lying at the bottom of this right of challenge. The good purpose of this right is to secure a fair and impartial trial, and when the opinion is of such character as partiality or prejudice may be inferred from it, then, of course, the person is not a qualified juror.

Now, in this case, the opinion of the party offered as juror was founded entirely upon rumor ai d newspaper statements; he did not live in the neighborhood where the alleged offense was committed; had never talked with a witness in the case, nor with any one who Vol. 9-No. 9.

fident he could try the case substantially according to the evidence. We agree with the court below that the person offered was a competent juror. There was no such opinion formed and expressed, no such pre-judgment of the case as to justify a challenge for cause. If such an opinion is to amount to a disqualification, it would be difficult, if not impossible, in a criminal case of importance, especially in a case of murder, to find twelve jurors of intelligence and character, such as our statute law requires. The newspaper is now read by every one, and the press is ever ready and eager to furnish the details of crime, and although persons may, upon such statements, form an opinion, yet it is one in most cases liable to qualification or remodification according to the real facts of the case. The opinion which should exclude a juror must be a fixed and deliberate one, partaking, in fact, of the nature of a pre-judgment."

In some States it has been held that any opinion formed or expressed, without regard to the source or information upon which it is founded, is a sufficient disqualification. In others, the character of the opinion and the source whence it is derived, are most considered, and there it is held that, although an opinion formed and expressed from actual knowledge of the facts, or from information

derived from those who are witnesses or who had knowledge, is sufficient ground for challenge, yet that an opinion formed and expressed from mere rumor or newspaper statements, is not sufficient, if the person offered as a juror can say that such opinion has not created any bias or prejudice for or against the prisoner. Then, again, it has been held that the opinion, however formed and from whatever source, must be such as implies partiality for or malice against the party challenging. On the trial of Burr, the Chief Justice

said: "The court has considered those who have deliberately formed and delivered an opinion on the guilt of the prisoner, as not being in a frame of mind to weigh the testimony, and, therefore, as being disqualified to sit as jurors in the case." 1 Burr's Trial, 367. And Chief Justice Taney, in a later case cited in Wharton's Criminal Law, § 2981, said: "If the juror had formed an opinion that the prisoners are guilty, and entertains that opinion now, without waiting to hear the testimony, then he is incompetent. But if, from newspapers or hearing reports, he had impressions on his mind unfavorable to the prisoner, but has no opinion or prejudice which will prevent him doing impartial justice when he hears the testimony, then he is competent."