« ForrigeFortsett »
SUPREME COURT ON ILLINOIS.
[Filed at Ottawa, June 21, 1879.]
PRACTICE-CONTESTED ELECTION - DIRECT APPEAL TO THE SUPREME JOURT FROM COUNTY COURT.-An election was held in the town of Spring Grove on the 3d of April, 1877, at which Gilmore and Gulaw were each voted for as candidates for the office of supervisor of the town. On counting the vote at the close of the election each candidate was found to have received one hundred and thirty-nine votes. Lots were tbereupon drawn and Gilmore drew the successful lot and entered upon the duties of the office. Webster contested the election, and filed a written statement in the county court of that county, and after answer and replication the cause was heard .and judgment rendered in favor of appellee. From that judgment Webster appeals to this court. Appel. Jee claims that no appeal lies to the supreme court from a county court. WALKER, J., says: “An appeal is given directly to this court by the 123d section of the election law. (See Rev. Stats. 1874, p. 466.) By that act jurisdiction is conferred on the county court to hear and adjudicate in contested elections for county officers, and the appeal is given to this court in the same manner and upon like conditions as is provided by law for taking appeals in cases in chancery from the circuit courts. The eighth section of the act creating appellate courts allows appeals from and writs of error to the circuit courts or the Supreme Court of Cook county. The 88th section of the prac. tice act only refers to the same courts in connection with appeals to or writs of error from the appellate courts. Thus, it is seen that an appeal from or writ of error to a county court is not given by the acts creating the appellate courts and regulating the practice therein. And in the absence of an enactment author. izing writs of error from and appeals to, these courts can not take jurisdiction. And it follows that the appeal in this case did not lie to the appellate court. The appeal was therefore properly brought to this court.” Affirmed.- Webster v. Gilmore.
CONTRACT-CONSIDERATION-PROMISE BY COUNTY SUPERVISORS OF BOUNTIES FOR ENLISTMENT -PROMISE MADE AFTER ENLISTMENT.—This is an action brought by appellant to recover a bounty of one hundred dollars claimed to be due from the county of De Kalb to appellant, under resolutions passed by the board of supervisors. To the declaration defendant filed a demurrer, which the court sus. tained, and rendered judgment for defendant, to reverse which plaintiff brings the record to this court. As appears by the declaration, plaintiff enlisted in the military service of the United States on the Joth of September, 1861, for a term of three years. The resolution of the board relied on to create the liability was first adopted on the 14th of December, 1863, by which a bounty of one hundred dollars was to be paid to each resident of De Kalb county “who may enlist," etc. On the 13th day of May, 1864, the board adopied a resolution that the terms of the resolution passed on the 16th of December, 1863, in regard to the payment of bounties, be extended to all who have enlisted in the service of the United States for the term of three years prior to this date. WALKER, J., says: “If appellant volunteered at that time without any resolution promising him a bounty, there was not the slightest duty or obligation legal or moral on the part of the county to pay him any bounty whatever, and even if this resolution (the first) in terms had embraced him it would have created no indebtedness, because there was no consideration to support the promise, and for the further reason that the board had no legal author
ity to make such promise or an appropriation to pay it. We are aware that decisions may be found which seem to be adverse to this conclusion, but we do not regard them of binding authority, nor are we inclined to follow them. The board has no power to appropriate money
individuals, however meritorious, as a donation, or for any purpose not authorized by law." Affirmed.-Greenwood v. County of De Kalb.
PRACTICE AMENDMENT AFTER OPENING OF CASE - DISMISSAL AS TO ONE OF THE PLAINTIFFS -VARIANCE.—This is an action on the case commenced by Walter Todd and Chas. Todd, who sue as part. ners, against the Chicago, etc. R. Co. for negligence resulting in the burning of a flouring mill and its contents in the town of La Salle. It is alleged in the dec. laration that plaintiffs as partners were the lessees of the mill. The cause was submitted to a jury, and the plaintiff, Chas. Todd, testified that he and his father, Walter Todd, his co-plaintiff, were in partnership, and in possession of the mill. After all the evidence for plaintiff and defendant was given to the jury, Chas. Todd, being then recalled to rebut evidenre given on behalf of the defendant, testified that his mother, Emily Todd, and not his father, Walter Todd, was in partnership with him in the mill. Motion was then made by counsel for plaintiff under the 24th sec. tion of the Practice act to substitute the name of Emily Todd in the place of Walter Todd, which, against the objection of defendant, the court allowed. The de. fendant then asked for a continuance, which the court being about to grant, the plaintiff's counsel asked leave to discontinue the suit as to Walter Todd, which the court allowed, and also allowed plaintiff to proceed with the trial of the cause in the name of Chas, Todd as said plaintiff, the motion to substitute Emily as co-plaintiff being abandoned. To all these rulings of the court the defendant excepted and comes here on appeal. SCHOLFIELD, J., says: “It is conceded by counsel for appellee that had the suit in the first instance been brought in the name of Chas. Todd alone, the non-joinder of Emily might have been pleaded in abatement, and such has been the ruling of this court. 14 Ill. 22; 17 Ill. 302. It was a matter of substan. tial right to the appellant to have the cause of action adjudicated in a single suit. But by the ruling here it was denied that privilege. It was against its protest required to proceed with the trial after the suit was dismissed as to one of the original plaintiffs. The amendments allowed to be made by $ 24 of the Practice act are in furtherance of justice and the rights of the parties and not in denial of such rights. There was also a variance after the amendment which in itself was fatal. 37 Eng. Law & Eq. 523; 4 Ohio (N. S.), 542; 8 Allen, 75." Reversed. DICKEY, J., dissenting,–Chicago, etc. R. Co. v. Todd.
NEGLIGENCE GETTING OFF OF STREET CARDUTY OF PASSENGER TO SEE THAT CAR IS STOPPED FOR THAT PURPOSE-RELEASE OF CAUSE OF ACTION-INSANITY-PRESUMPTION.-This is an action brought to recover damages for the negligence of a street railroad company by which plaintiff was injur. ed. It appears that plaintiff was on one of defendant's cars, and that when the same stopped at the corner of State and Randolph streets she attempted to get out, but was thrown down in consequence of the car being suddenly started. Two pleas were offered: 1st. Not guilty; 2d. Release made by plaintiff to defendant. The verdict was for plaintiff. Defendant appeals. An insiruction under the first plea was given to the general effect that “if the defendant stopped said car for the purpose of permitting the plaintiff to alight, and that when the plaintiff, if using due care, was in the act of stepping off, and that defendant's agent started said car before plaintiff had a reasonable time to alight," etc. Under the second plea, an instruction
was given to the effect that “the burden of proof is upon the defendant to show that the alleged written release of plaintiff offered in evidence by the defendant was the conscious act and deed of said plaintiff, or executed in compliance with a previous agreement made when she was mentally capable of making and understanding it.” SCHOLFIELD, J., says: “This instruction (first) was calculated to mislead the jury and should not have been given. It assumes that the car was stopped, upon notice, for the purpose of letting passengers off. There is no proof that warrants such an assumption. It is not shown how or why the car happened to be stopped at that place. While this circumstance should not be held to exonerate the defendant from the exercise of the care with which it is properly chargeable, yet the facts are such as to show that the defendant should not be required to anticipate that persons would be desirous of getting off the cars at any stoppage that they might make. And, therefore, unless it should appear that the driver stopped the car for the purpose of letting passengers get off, or he knew that persons were actually getting off, the company is not chargeable with negligence. # It is contended that the release was signed by plaintiff while her mind was in a state of unconsciousness. The instruction (second) was clearly erroneous. In Lilly v. Waggoner, 27 Ill. 397, the rule was thus laid down: • The legal presumption is that all persons of mature age are of sane memory. But after inquest found, the presumption is reversed, until it is rebutted by evidence that he has become sane. When the transaction complained of occurred before the inquest is had,the proof of insanity devolves upon the party alleging it, but it is otherwise if it took place afterwards.' 23 111. 283; 18 Ill. 282. Here it devolved upon the plaintiff to show that the release was obtained when her mind was impaired-not upon the defendant to show that her mind was not impaired when it was obtained.” Reversed. Chicago (West Div.) R. Co. v. Mills.
to such person or persons as shall from time to time be appointed by the judge of probate for the time being in the district of Norwich, in the State of Connecticut, to take, receive and distribute the same among the poor, meritorious widows, living and belonging within the limits of the first ecclesiastical society of the town of Norwich and district aforesaid," and further provided that if from any cause said object could not be accomplished, or the income was not applied conformably to the provisions of the will, the fund should lapse and become part of the residue of the estate. The trustees entered upon their duties in 1852, and in 1872 the widows' fund having accumulated to the amount required by the will, they made application in Connecticut to the judge of probate for the district named for the appointment of a suitable person to receive and distribute the income thereof, according to the provisions of the will. The then judge of probate declined, alleging want of jurisdiction. In 1877, however, after this bill for instructions was filed, the present judge of probate for that district appointed the defendant, Burr, a trustee under the provisions in question; and in the following year the legislature of Connecticut confirmed the appointment, and gave express power to the judge of probate in the premises. Held, that the bequest was valid; that the delay in appointment of an almoner would not defeat it; and that there had been no misapplication of the trust fund which would work a forfeit
2. The question whether there has been an abuse of a trust is one in which the trustees have a direct personal interest, and which can not be tried and settled in a bill in the nature of a bill of interpleader brought by tbem for the purpose of obtaining the advice and protection of the court in the execution of their trust. Opinion by Colt, J.--Sohier v. Burr.
SUPREME JUDICIAL COURT OF MASSA
NEW EDITIONS OF TWO GREAT WORKS.
A COMMENTARY ON THE LAW OF EVIDENCE IN
CIVIL ISSUES. By FRANCIS WHARTON, LL. D. Author of Treatises on Conflict of Laws, Medical Jurisprudence, Negligence, Agency and Criminal Law. In two volumes. Second edition. Philadelphia: Kay & Bro. 1879.
A TREATISE ON THE LAW OF MORTGAGES OF REAL
PROPERTY. By LEONARD A. JONES. Author of a Treatise on Railroad Securities. In two volumes. Seeond edition. Boston: Houghton, Osgood & Co. 1879.
LEASE – RENT PROVABLE AGAINST INSOLVENT ESTATE-SURRENDER.–1. Where a lessee has died and his estate has been declared insolvent by the probate court, and commissioners have been duly appointed, the lessor is entitled to prove for rent which became payable by the terms of the lease before or after the death of the lessee, up to the time that the claim is presented to the commissioners, but is not entitled to prove any claim for or on account of rent payable in the future. 2. If the administrator in such case has surrendered ibe lease, and its acceptance by the lessor has been absolute, and not qualified by any reservation of or agreement for a right to sue the administrator or prove against the estate, in case of a loss by being compelled to let the premises at a reduced rent, then such surrender terminates the lease, and all liability upon the covenants thereof. Randall v. Rich, 11 Mass. 494; Amory v. Kannoffsky, 117 Mass. 351. Only the amount payable up to the time of such surrender can be proved, deduction being made for any sums received by the lessor for use and occupation by the administrator. Opinion by GRAY, C. J.- Deane v. Caldwell.
WILL-CHARITABLE BEQUEST -INTERPLEADER.1. The will of a testator directed that the income of a certain fund accumulated under its provisions “shall be paid annually by the trustees acting under the will
In the case of the first of these books only two years, and in tbat of the second but eighteen months, have elapsed since the first edition appeared. The favor which they have met with at the hands of the profession is thus sufficiently shown. Both were then reviewed in this JOURNAL, and we have felt curious to look back and see wbat we had to say of them at that time.
Of Mr. Jones' work we then said: “This is, in some respects, the most elaborate and comprehensive work on the subject of Mortgages of Real Property that has yet appeared. It is strictly limited to mortgages of realty, and consists of forty chapters and 1,927 sections. Eight thousand cases, mostly American, are cited about 14,000 times under different topics. A synopsis of the more material provisions of the statutes of the several States is given. The doctrine pertaining to mortgages at common law and in courts of to the upright position of one sitting at a piano, and saves the sight—the eye not being required to follow the paper on which the printing is done. Manifold copies, to the number of twelve or more, may be made at the same time. The labor of a large correspondence becomes less of a drudgery when the writing is done in this manner.
equity, aside from statutory regulation, are stated, and in connection therewith the statutory modifications. A very considerable space is properly devoted to the foreclosure of mortgages, and, as incident to this, the appointment of receivers, and the decree, sale, and application of the proceeds.
It will not fail to find favor with the profession, and to secure their approving judgment. From an American stand-point it would seem to be a most comprehensive and thoroughly practical work, and one not likely to disappoint the expectations which our high estimate of it may raise.” The second edition bas been revised throughout; additions to the text and citations have been made in every division of the subject-in all one hndred and fifty pages-and over a thousand new cases have been added. Mr. Jones' treatise has since its publication received so many testimonials to its worth, that anything more at this time is unnecessary. It continues to merit the good opinion which was expressed eighteen months ago, by the eminent jurist who wrote the review from which we have quoted.
Two years ago we spoke of Dr. Wharton's Treatise on Evidence in these words: “The present volumes are designed to meet these changes (statutory changes in the law of evidence), consequently they are indicated in a striking manner. Familiar chapters in the old books-old only as regarding the progress made in the law--are looked for in vain. They have passed quite away and forever. The space which they occupied is given up to decisions that sbow forth the law as it stands at this time. Any one who knows the value of the adjudications of late years on questions of evidence presented by the new laws, will readily perceive the value of the present work, which not only disencumbers the law of a large amount of useless matter, and gives place to new matter, but illumines the whole subject with lights from what may be considered as a new philosophy al present pervading alike the statutes and the decisions. The chapters on the nature of proof, relevancy and presumption, must be regarded as being contributions to legal science of unusual value.” In the second edition Dr. Wharton has added much new mat. ter, and the new adjudications have been cited. From all the works on Evidence which are on the market today, we would unhesitatingly select this one as being first in practical usefulness, and second to none in learning.
In an action of Betts v. Doughty, tried last week be. fore Sir James Hannen and a special jury, a new head of equity was “ evolved;" and, although no definite decision as to its validity was rendered by reason of the dispute between the parties being settied, yet the matter amply deserves the notice of the profession. From the facts proved in the course of the plaintiffs' case, it appeared that Miss Doughty, who died last year, aged seventy-nine, had made a will in 1853, by which she directed her real and personal estate to be sold, and the moneys realized from the sale to be di. vided equally between her brothers (two in number) and her sister. Her brothers and her sister predeceased her, all leaving issue. The children of the sister-namely, Major Betts and Miss Betts-propounded the will and were plaintiffs in the action; the eldest son of the eldest brother was defendant in the action, and as heir-at-law opposed the will on the ground of the incapacity of the testatrix; and the children of the other brother appeared as intervenors in the action. In the course of the plaintiffs' case, counsel for defendant cross-examined the witnesses who gave evidence in support of the will not only for the purpose of proving the plea of the incapacity of the testatrix, but also for the purpose of showing that twenty years after the will had been made, the testatrix was desirous of executing a new will depriving the plaintiffs in the action of all benefit under her will of 1853, and transferring that benefit to the defendant, his brother, and the intervenors, and that she was prevented by the threats of the plaintiffs from executing this further will. Enough was elicited in cross. examination to make out a prima facie case to this effect; and, therefore, at the close of the case for the plaintiffs, counsel for the defendant applied to the judge to be allowed to amend the statement of defense, by adding a paragraph to the effect that the testatrix was prevented, by the threais of the plaintiffs, from executing the draft will excluding the plaintiffs from all interest under the will of 1853; and, also, by adding a claim that the plaintiffs should be declared to be trus. tees of the share bequeathed to them by the will of 1853, for the benefit of the defendant, his brother, and the intervenors. In spite of the opposition of the plaintiffs' counsel, Sir James Hannen allowed the statement of defense to be so amended; and his lordship also al. lowed the intervenors to put in the same pleading, and ask for a like declaration. However, upon his lordship's suggestion, the parties wisely compromised the dispute, and the will of 1853 was pronounced for upon terms. We believe that no case of this kind is to be found in the whole history of equity jurisprudence, and that there is, therefore, no precedent for the plea. But, if the plea is bad, then it would seem to follow that a party who knew that a testator had made a will in his favor might, by actual force, prevent the tesiator from changing the disposition of property, and so take advantage of his own wrongful act. The novelty of the cquity set up is sufficient to enforce its claim to legal attention, as, although no case of the kind has occurred in the past, the future may bring forth fresh instances. It is worthy of observation that, before the Judicature Act, the parties could not have raised such an issue in the Court of Probate, but would have been driven to file a bill in chancery to assert the claim.-Law Journal.
The type writer must now be added to those "aborsaving” productions of which we have so often spoken-the index and the digest. Just as the accumulation of precedents has made the digest a necessity, so the growth of litigation and the increase of appellate jurisdiction has caused the courts of last resort in most of the States to order by rule that the records brought up and the briefs filed shall be in print. Lawyers are not as a class good penmen, and the jurges who are still compelled to read their writing by the yard would be entitled to much sympathy were it generally believed that they read everything that is submitted to them in this manner. A lawyer whose brief is printed is a little more likely to have his arguments followed than the lawyer whose brief is writien; and to say this is to cast no reflection on the judge whose duty it was to consider them. The great expense in printing briefs is at an end when a machine can be obtained with which a brief may be written and printed at the same time. In addition to this, the type writer relieves the body--the stooping position of the writer at a desk or table being changed
in its full sense. The Central Law Journal.
The court said: “The word minerals, though more frequently applied to
substances containing metal, in its proper sense SAINT LOUIS, SEPTEMBER 19, 1879.
includes all fossil bodies or matters dug out of mines ;' and it decided that beds of stone
found in the allotments which might be dug CURRENT TOPICS.
by quarrying, belonged to the lord. In com
ing to this decision the court looked at the In Ryder v. Wilson, the Supreme Court of whole act to ascertain its object and intention, New Jersey recently passed upon the vexed and referred to other parts of it in support of question as to whether a right of action which its construction of the word. An elaborate inhas become barred under the statute of limi
quiry into the various senses in which the word tations, can be revived by the repeal of the
"mineral” might be used was made by Kinstatute. Beasley, C. J., said: “ The propo- dersley, V. C., in Darvill v. Roper, 3 Drew.
BEASLEY sition is, that if a statute of limitation be
294. In certain deeds of partition there ocrepea:ed, all rights of action which were de
curred an exception of "the mines of lead and stroyed by it are revived and can be enforced
coal and other mines of minerals.” Scientific by a judicial proceeding. But I can find
witnesses were examined, who, according to nothing in the nature of the transaction, nor
the report, agreed in defining minerals to be any in legal principles, that will lend the least
crystalline or earthy substance, whether metalsupport whatever to such a contention. The
liferous or otherwise, existing in or forming decisions of the courts, so far as my research
part of the earth, and which might be worked has extended, are wholly in accord on this
by means of a mine or quarry. The vice chansubject, and, with one voice, they declare
cellor refused to interpret the word in this that when a right of action has become barred
sense, and construed it, according to what he under existing laws, the right to rely upon
considered to be the intention of the parties the statutory defense is a vested right that
to be collected from the deeds, to mean such cannot be rescinded or disturbed by subse
minerals only as are worked by means of mines. quent legislation.” Cooley on Const. Lim.,
He consequently held that quarries of lime869.
stone were not within the exception. In this
case the vice chancellor sought to discover In the recent case of Attorney General v.
from the general scope of the deeds, the sense Mylchrest, 40 L. T. N. S. 767, it was held by the
in which the parties had used the word. KinEnglish House of Lords that the word “min
dersley, V. C., gave the same construction to
the word “minerals” when used in an exceperals” in a grant did not include clay and sand. It was said that the word in its scien.
tion in a modern conveyance of land, and held
Bell tific and widest sense might include substances
that freestone did not come within it.
529. v. Wilson, 12 L. T. N. S.
His of this nature, and, when unexplained by the context or by the nature and circumstances of opinion on this point was overruled by the
, usage is admissible) would, in most cases, do
with bim in his construction of the power to 60. But the word has also a more limited work the minerals, holding that the grantee and popular meaning, which would not ein- could only get the freestone by underground brace such substances, and it may be shown working. The exception in this case contained by any of the above mentioned modes of ex
the word “metals” before minerals, indicating planation that, in the particular instrument to
that the latter word was intended to embrace be construed, it was employed in this narrower
substances other than metals. The deed also sense. In the case of Earl of Rosse v. Wain- contained nothing from which it could be inman, 14 M. & W., 859, the Court of Exche- ferred that the word “minerals” was not to quer held that in an Inclosure act containing
have its full meaning. Turner, L. J., said:
. a clause reserving to the lord of the manor all
“Freestone is a mineral, and I can find nothmines and minerals, the latter word was used
ing in the nature or context of this deed to Vol. 9-No. 12.
the transaction or by usage (where evidence of Lords justices, but they at the same time agreed
show that it was not intended to be included VIII., sec. 6-9. That the right to bar dower in the exception." Bell v. Wilson, L. R., 1 did not exist at common law and was the Ch. App. 303; 11 L. T., N. S. 115. The creature of statute, is shown from the fact, last decision to which reference need be made first, that no right could be barred until it had is Hext v. Gill, L. R. 7 Ch. App. 699; 26 L. accrued ; and, second, because no right to an T. N. S. 502. In that case the Duke of estate of freebold could be barred by any col Cornwall, as lord of a manor, had granted the
lateral satisfaction or recompense. Co. Litt. freehold of a tenement to the copy-bolder, re
366; Vernon's ('ase 4 Co. 1. Legal jointures serving “all mines and minerals within and to bar dower called for six requisites. How under the premises,” with power to work
far they are now regarded as conditions essenthem. It was held that a bed of china clay
tial to accomplish the same purposes needs no was within the exception. An injunction was,
explanation. Legal jointures are obsolete, however, at the same time granted to restrain
but the statutes of the States have prescribed the duke from getting the china clay in such conditions, the provisions of which are based a way as to destroy or seriously injure the
upon the old system of barring dower adopted
three centuries ago. surface, though, as the court observed, this was the only way in wbich it could be got.
Among the numerous English and AmeriMellish, L. J., stated the result of the au
can decisions which have resulted in estabthorities, in his view, to be, “that a reserva
lisbing what is now known as equitable jointtion of minerals includes every substance which
ures, or antenuptial contracts, the following can be got from underneath the surface of the
are given as the more important of the earlier earth for the purpose of profit, unless there is
ones governing this subject. something in the context or nature of the
1. It should take effect immediately upon transaction to induce the court to give it a
the death of the husband. In Garthshore v. more limited meaning."
Chalie 10 Ves. 1, the bar of dower was a corenant of the husband that his executors should,
witbin six months after his death, convey to ANTE-NUPTIAL CONTRACTS WHICH BAR
his wife, surviving, a portion of his real and DOWER.
personal estate. In Selleck v. Selleck, 8
Conn. 85n, the husband had entered into a The origin of antenuptial contracts is not writing that should his wife survive him, his precisely known. That they grew out of the executors should pay her, within four months system of legal jointures, in vogue prior to the
after his decease, one hundred dollars in full Statute of Uses is pretty clearly established.
of all claims. Cæsar and Tacitus are both authorities to 2. It must be for her own life at least, and show that provisions for the wife before mar- not per autre vie, or for any term of years, or riage were made by the ancient Germans and any smaller estate. In Davila v. Davila, 2 Gauls. The latter says: " Dotem non uxor Vern. 724, the wife was barred of dower by a marito sed uxori maritus offert intersunt par- covenant of the husband to pay her £1,500 entes et propinqui et munera.” De Mor. out of his real or personal estate in consideraGerm. ch. 18; 1 Washb. Real Prop. 315. tion of the intended marriage, and £1,000. In It was not until the passage of the Statute of Charles V. Andrews, 9 Mod. 151, the court Uses, 27 Henry VIII. ch. 10, however, that say, that in equity a woman before marriage, jointures were regarded as of any importance, being of age, and covenanting to accept a and then only in connection with the mode of term of years or other chattel interest in bar of barring dower. As the effect of that statute dower, would not be permitted to have both. was to unite the legal and equitable estates In Tinney v. Tinney, 3 Atk. 8, the heir at law and let in dower, giving to those who had claimed that the widow was barred of dower already been provided for by jointure, a double by a bond of the husband agreeing to secure portion, it was enacted by subsequent provis- her £400 in case she survived him.
He did ions, that lands so given by way of jointure not succeed; but this was on the ground that previous to marriage would bar dower, unless the bond did not express that the £400 was in the donees were evicted therefrom. 27 Henry lieu of dower, and the chancellor refused to