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they shall have obtained a license therefor. The case was tried in the court below on an appeal from the justice of the peace on a stipulation as to the facts. It was agreed that defendant was a corporation, organized 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 factory was in Cook county, outside of the city limits, 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 from the city of Chicago. The court below rendered judgment against defendants, and they appeal to this court, and urge in favor of a reversal that, for various reasons, the city had no power to pass or enforce the ordinance. WALKER, J., who delivered the opinion, after a long and careful discussion of the questions, viz.: 1. Whether the general assembly had granted the power to the city of Chicago to pass an ordinance of such a character; 2. Whether the power was also granted to exercise police restraint outside of the city limits and within another municipality (citing 50 Ill. 69; 13 Ill. 554; 46 Ill, 392), concludes; "We must conclude that the general assembly, rather than subject one large city to such hazards from smaller municipalities in their immediate vicinity, would have repealed the charter of the latter, of at least curtailed their power. What in the open and thinly settled country would not be obnoxious as a nuisance, would in the heart of a city be a terrible nuisance. Persons then desiring to engage in or near to cities must submit to have their pursuits limited and contracted. Whilst trade, manufactures and commerce have large claims on the laws for protection, theirs is not the only nor have they the highest claims. To accomplish this purpose (protect health and lives), the power was conferred upon cities and villages to regulate these establishments for the distance of one mile beyond their corporate limits, even if that should lap over and embrace a portion of territory embraced in the boundaries of another municipality." Affirmed.-Chicago Packing Co. v. City of Chicago.

BILL TO REMOVE CLOUD ON TITLE POWER OF ADMINISTRATOR TO MAINTAIN SUIT. -This was a bill in equity brought by the appellant as administrator of an estate to remove a cloud from the title, and to recover possession of certain lands. The answer denied that the complainant as administrator had any interest in or power over the real estate in question, and alleged other defenses. The court below dismissed the bill, and complainant appeals. SHELDON, J., says: "If for no other reason we think the decree of dismissal of the bill must be sustained upon the ground of the inability of an administrator to maintain a bill of this character. The administrator is the sole representative of the personal estate, but not of the real property. This court has decided that an administrator takes neither an estate, title or interest in the realty, and that he can not support any possessory or real action, etc. See 16 Ill. 177; 17 Ill. 135; 31 Ill. 379; 39 Ill. 402; 51 Ill. 390; 70 Ill. 399; 53 Ill. 186. It is true that in the latter case, which was a bill by an administrator of a like character with this, this court said that the bill was obnoxious to a general demurrer on the ground above, but as the bill has never been fully answered and an issue made up thereon, the cause was properly heard on its merits. That case is not to be understood as deciding that an answer is a waiver of such matter as might have been objected to by demurrer. Where an objection, as to the jurisdiction of the court, that there was a remedy at law had been made for the first time at the hearing, it has been held that the objection came too late. 4 Cow. 727; 2 Paige, 503. We understand that the case of 53 Ill. 186, was one

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PRACTICE JUDGMENT CAN NOT BE SET ASIDE AFTER TERM-NEW TRIAL.-1. It is the settled law of this state that the circuit court of this state can not set aside its own valid judgment after the term at which it is entered, except to correct clerical errors, or under the provisions of section 38, ch. 125, Rev. Stats. 1858; and the rule is not affected by the fact that the motion to set aside was made during such term. 2. It seems that the question whether a new trial can be granted where a judgment to set aside after the term under the provisions of said sec. 38, is still an open one in this court, notwithstanding a dictum in Scheer v. Keown, 34 Wis. 349. 3. A motion for a new trial on the ground that the verdict was contrary to law and evidence, and for newly-discovered evidence is not 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 be entertained unless joined with a motion to vacate the judgment. 5. In case of relief sought under sec. 38, not only the motion but the order to vacate must be made within the year allowed by the statute. Opinion by TAYLOR, J.- Whitney v. Karner.

PRACTICE-CONSOLIDATION OF ACTIONS.-1. The statute respecting the consolidation of actions (sec. 42, ch. 125, Rev. Stats. 1868), provides for such consoli. dation only "when the actions might have been joined." 2. An action against a railroad company for a trespass to lands in building or maintaining its road thereon, without license or condemnation of the land, can not be joined with a proceeding by the company to condemn the land under ch. 119 of 1872; and an appeal to the circuit court in the latter proceeding can not be consolidated with such an action for trespass pending in the same court. 3. It is discretionary with the court in all cases to refuse a consolidation of actions. 4. An order refusing to stay proceedings in the trespass action until trial of the appeal in the condemnatiou proceeding, is in the discretion of the court, and not appealable. Opinion by ORTON, J.—Blesch v. C. &N. W. R. R.

CORPORATIONS - DUTY OF TO KEEP ITS PRINCIPAL PLACE OF BUSINESS IN STATE WHERE CREATED --FORFEITURE-QUO WARRANTO.-1. The statutes of this state relating to the levy of attachment or execu. tion upon shares of stockholders in corporations, to proceedings by or against corporations, and to the exercise of the visitorial powers of the state over them, as well as the act regulating the duties of the railroad

commissioner and the general act concerning railroad corporations, under which the defendant was organized, and other statutes, require, at least by necessary Implication, that the principal place of business, the records, and the residence of the principal officers of private corporations created by this state, shall be within the state, at least so far as may be necessary to give full effect to those statutes; and the charter of such a corporation may be adjudged forfeited for continued neglect of such duty, under ch. 283 of 1874. 2. Independently of statutes, it is the duty of a private corporation to keep its principal place of business, its records and the residence of its officers so located as to render it accessible to the process and to the exercise of the visitorial power of the state by which it is created; and a forfeitute may be adjudged for violation of this common-law obligation. 3. An information showing that the principal office of the defendant company is in the city of New York; that its books and records have always been kept in that city; that none of its principal officers reside in this state; and that by reason of these facts it has been impossible to enforce an attachment against the shares of stockholders in said company in actions brought in courts of this state, in accordance with the laws thereof: Held, on demurrer, to show sufficient ground for adjudging a forfeiture of the company's charter. 4. This court takes original jurisdiction of an information in the nature of a quo warranto, filed, by leave of the court, by the attorneygeneral in behalf of the state, to annul the charter of a railroad company upon the grounds above stated. 5. Persons injured by the alleged misconduct of the company, in specific instances stated in the information, need not be joined as plaintiff's or made relators in this action. 6. The several particulars of the defendant's abuse of its franchises alleged in the information (its having its principal office in another state, its keeping its records there, and the fact that its officers reside there), are not distinct causes of action; but even the joinder of distinct grounds of forfeiture in such an information would not be demurrable. Opinion by ORTON, J.-State v. M. L. & N. R. R.

DAMAGES-WARRANTY-EVIDENCE-RESCISSION OF CONTRACT.-1. Wuere one of the questions in issue was as to the defendant's damage from an alleged breach of warranty in the sale of oxen, it was not error to rule out a direct question put to him as a witness in his own behalf, calling for his opinion as to the amount of such damage. 2. The plaintiff in such action, on his cross-examination by defendant, might properly be asked whether the oxen were in as good a condition at the time of the sale as at the time of the trial, especially when he had introduced evidence of their value based upon their appearance at the latter time; but error in ruling out the question was cured by the witness afterwards testifying to the same point upon direct examination. 3. To constitute a rescission of a contract of sale, for breach of warranty, the vendee's offer to return the property should be unconditional, and should assign the breach of warranty as the ground thereof. 4. The warranty claimed in a sale of oxen was, that they were sound and true, and in all respects snitable for defendant's purposes. There was proof that some time after the purchase that the vendee wrote to the vendor that he was so much disappointed in the oxen that he would not pay the note he had given the vendor for $118, the purchase price; that they were not worth $75; and that the vendor might take them away, upon which vendee would pay for the use of them, or might leave them, in which case he would pay $75 for them. Held, that there was no error in refusing to instruct the jury upon this evidence, as matter of law, that defendant had rescinded the contract. 5. It is generally a question of fact for the jury wheth

er an offer to return goods sold and rescind the contract is made within a reasonable time. 6. A continued use of the whole or a part of the property sold, after an alleged offer to rescind, is inconsistent with the claim to have rescinded, or at least strong evidence against it. 7. In assessing damages for a breach of warranty, the jury are not bound to accept the amount estimated by any of the witnesses, nor the average of the amounts estimated by different witnesses, but must exercise their own judgment upon all the facts in evidence, including the opinions of witnesses as to the difference between the actual value of the article and what it would have been worth if as warranted. 8. A judgment can not be reversed, therefore, on the ground that the verdict was not sustained by the evidence in respect to the amount allowed for breach of warranty, merely because such amount does not conform to either the estimate of any witness, or the average of all the estimates; especially where several warranties were alleged, and it does not appear which of them the jury found to have been given and broken. Opinion by TAYLOR, J.-Churchill v. Price.

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PLEADING-EXHIBITS.-Exhibits which are not the foundation of the action or defense do not become part of a pleading by being filed with it, and the contents of such exhibits can not be considered to supply any omission in, or to aid in the construction of the averments in the pleading. Opinion by NIBLACK, C. J.— Moore v. Cline.

COMPLAINT FOR NEW TRIAL-PLEADING.-A complaint for a new trial on the ground of newly-discovered evidence must set out all the evidence given upon the former trial; and where such complaint shows on its face that it does not contain all the evidence, a demurrer filed thereto does not admit to be true an allegation that such complaint does contain all the evidence. A demurrer admits only such facts as are well pleaded. Opinion by WORDEN, J.-Trustees of the Indiana State Spiritual Association v. Reynolds.

SHERIFF'S SALE NON-PAYMENT OF PURCHASEMONEY.-A venditione exponas can only issue where property levied on remains unsold. In this case, the sheriff's return to the previous execution was as follows: "The real estate levied on (being the land above described) sold to John G. Shackleford, April 6, 1872, for $130; purchase-money not paid." A fair construction of the return shows that the land remained unsold when the return was made. The language was equivalent to saying that the land was "bid off by John G. Shackleford for $130: purchase-money not paid." The plain inference is that the title of the land had not then passed, and that hence there had been no valid sale. No valid sale being shown by the return, it followed that the land remained unsold, and that a venditione exponas was properly issued. Opinion by NIBLACK, C. J.-Dawson v. Jackson.

QUERIES AND ANSWERS.

QUERIES.

65. A QUESTION ON THE LAW OF HOMESTEADS.-A owns the N. 200 feet of Blk. 34, the same being in one inclosure. The house stands on the E. 125 feet, the barn on the W. 75 feet. The premises are occupied as a homestead by A. In December, 1874, he (wife not joining) conveyed to B, but B did not put the deed on record until October, 1875. In the meantime A, being in want of money, in May, 1875, borrows $2,000 of G, and gives a mortgage, in which his wife joins on the E. 125 feet of the N. 200 feet of Blk. 34. Then A and wife die, leaving them surviving several children, two of whom are minors. B, in October, 1877, conveys to D, one of the children, and who resides with the family on the homestead. Now, supposing the conveyances from A to B and B to D should be declared void, this would still leave the title in D and the minor heirs of A. The question is: Can D set up homestead exemption against E (a judgment creditor who has filed a creditor's bill asking that the last mentioned conveyances be set aside), as to the W. 75 feet of the N. 200 feet of said Blk, that being the part on which homestead exemptions have never been waived?

ANSWERS.

No. 56.

[7 Cent. L. J. 199.]

M.

In regard to the amount of diligence required in making demand of payment and giving notice of dishonor in order to hold the indorsers of a note indorsed after maturity, see 6 Ohio, 55, 66; Lanborn v. Southard, 25 Maine, 409; Rice v. Werson, 11 Metc. 400; Bank of Alexandria v. Swann, 1 Pet. 33, 47; Bank of Columbia v. Lawrence, 1 Pet. 578, 584. Does knowledge of maker's insolvency excuse demand and notice, in order to hold the indorser? Pon's Executors v. Kelley, 2 Haywood, 45; Escale v. Sowerby, 11 East. 114; Gower v. Moore, 25 Maine, 16; Byles on Bills, 158; Howe v. Bowers, 16 East. 112; Nicholson v. Gonthwitt, 2 H. Bl. 609; Russell v. Langstaff, Douglas, 497; May v. Coffin, 4 Mass. 341; Juniata Bank v. Hale, 16 S. & R. 167; Byles on Bills, 234, 236. Brunswick, Mo.

No. 60.

[7 Cent. L. J. 219.]

H. P. G.

A statutory exemption cannot be waived by an executory contract, and such a waiver will not be enforced. "The principle is that the exemption created by the statute is as much for the benefit of the family as for himself, and for that reason he can not by an executory contract waive the provisions of the law made for their support and maintenance." Recht v. Kelly, 82 Ill. 147; Phelps v. Phelps, 72 Ill. 548; Curtis v. O'Brien, 20 Ia. 376; Maxwell v. Reed, 7 Wis. 583; Kneetle v, O'Brien, 22 N. Y. 249. Bushnell, Ill.

BOOK NOTICE.

G. L. D.

REPORTS OF CASES ARGUED AND DETERMINED in the Supreme Court of Tennessee. Edited by JERE BAXTER. Vol. III. Nashville, Tenn., 1878. The cases reported in this volume were decided at the December terms of 1873 and 1874, of the Supreme Court of Tennessee. The volume contains 576 pages, and is well printed and bound. The opinions are all

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 general importance or interest.

There is, however, one amusing case in this volume. In Hancock v. Elam, p. 33, a verdict was set aside on account of the tender regard for a juror's stomach entertained by the supreme court. On the trial of the case, the jury having been out from eleven till one o'clock, returned into court and announced that they could not agree. Upon this the judge, who had no doubt already dined, ordered the sheriff to lock them up until they agreed, without, as the appellate court very compassionately remarks, "allowing them to have their din. ners before being locked up." The verdict was set aside on account of this piece of tyranny on the part of this judicial gourmand. "The jury might very well understand," say the court, "that they were requested either to agree or to submit to indefinite confinement and starvation. They were ordered to be locked up until they should agree. They did agree in the course of several hours, but whethor their disagreement was harmonised, under free patient investigation and deliberation, or under the appre hension of prolonged confinement and starvation, 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 disagreement." And so the plaintiff lost her judgment of $228, which the jury had found to be the value of work and labor performed by her for the defendant, and for all we can tell, waits for her dinner still. It is a pleasure to think that the poet's famous line:

"And wretches hang that jurymen may dine," can never be applied to the State of Tennessee, whose highest tribunal can discern with so quick an eye, and can visit with such enormous penalties, any attempt, on the part of its officials, to interfere with the right of the citizen to have his mid-day meal promptly at noon. A London alderman, just rising from a dinner of whitebait, could deliver the judgment in this case with becoming unction.

NOTES.

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 devote most of his time to the completion of a work on international law.--The members of the Executive Committee, and of the Committee on Grievances, of the Illinois State Bar Association, are invited to meet at Springfield, October 10th, at ten A. M., for executive and committee action. The members of the Executive Committee are: The President and Secretary, ex of ficio; 1st. Dist. J. M. Rountree. Nashville; 2d, S. M. Moulton, Shelbyville; 3d, C. A. Roberts, Pekin; 4th, N. M. Knapp, Winchester; 5th, Charles Blanchard, Ottawa; 6th, J. G. Monahan, Chicago; 7th, J. B. Bradwell, 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, Wm. E. Wilson, Decatur: 5th, A.,Orcudorff, Springfield; 6th. A. C. Matthews, Pittsfield; 7th. Wm. Fuller, Clinton; 8th. H. W. Wells, Peoria; 9th. S. W. Munn, Joliet; 10th. A. N. Brown, Galesburg; 11th. Stephen R. Moore, Kankakee; 12th. Jesse M. Hildrup, Chicago; 13th. L. L. Bond, Wm. Vocke, R. E. Jenkins, Chicago. The interests of the association require the attendence of the members of these committees at this meeting. The call is by order of Anthony Thornton, president, and Wm. L. Gross, secretary.

The Central Law Journal.

SAINT LOUIS, OCTOBER 11, 1878.

CURRENT TOPICS.

IN Foote v. Despain, where a plaintiff's attorney had brought on a case for trial in the absence, and without the knowledge of the defendant and his attorney, and in violation of a written stipulation to give ten days notice of trial, on a bill in equity filed by the defendant, it was held by the Supreme Court of Illinois that equity would grant relief by ordering a new trial at law, though relief might be had at law by a motion to set aside the judgment. In Nelson v. Rockwell, 14 Ill. 375, it was said:

The case of Kinsley v. Lake Shore & Michigan Southern Railroad Co., recently decided by the Supreme Judicial Court of Massachusetts, raises the question of the responsibility of a railroad company for the loss of a passenger's baggage. It appeared that the plaintiff was a passenger on defendant's railroad from Cleveland, Ohio, westward, having purchased in Boston coupon tickets over that and other roads, from Boston to San Francisco. At Cleveland the plaintiff also purchased a ticket which gave him a right to ride in the car " China, one of two sleeping cars which formed part of the regular train on defendant's road. After leaving Cleveland, and before reaching Toledo, Ohio, notice was given to the passengers that twenty minutes would be allowed for dinner at Toledo.

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leaving the car at Toledo, for dinner, the plaintiff inquired of an employee in the car whether his baggage would be safe if left in the car, and was told to leave all his baggage in the car, that it would be perfectly safe; and the plaintiff left the bag, to recover the value of which this suit was brought, with other articles in the car. On his return from

dinner, plaintiff found that the car "China" had been taken from the train, and the doors of the car locked, and was informed that that car would not go beyond Toledo, on account of the small number of passengers, and that he could have a seat in the other sleeping-car, and would find his baggage there. On going into the other car plaintiff found all his baggage ex

"Fraud is one of the broadest grounds of equity recognized by the courts, and relief may be obtained against a judgment at law, although the party might find a remedy in the courts of law. It is the fraud which gives jurisdiction to this court, and the aggrieved party is not obliged to resort to another tribunal possessed of less power and appliances to ascertain the truth and grant the requisite remedy, although the other tribunal may have jurisdiction." In How v. Mortell, 28 Ill. 478, it was held that a court of equity had jurisdiction to grant a new trial in an action of ejectment, where the trial had been had in violation of an agreement, entered into by the attorneys in the cause, that the case should not be tried without notice from one to the other.cept the said bag. He applied to the conThe decision is based upon the ground that courts of equity have jurisdiction to decree a new trial at law where a judgment has been obtained by fraud, accident, or mistake. The same principle is followed in Beams v. Denham, 2 Scam. 58; Wilday v. McConnel, 63 Ill. 278; Babcock v. McCamant, 53 Ill. 215. "It is true, say the court in the principal case, applications to a court of equity for a new trial after a judgment at law are not frequent, for the reason that, ordinarily, the same remedy may be obtained on motion for a new trial, and the practice of resorting to a court of chancery ought not to be encouraged; yet, where a judgment has been obtained by fraud, accident, or mistake, and the complaining party is free from negligence, it is proper the relief should be granted in a court of equity." Vol. 7-No. 15.

66

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ductor, and diligent search was made, but the bag could nowhere be found. The defendants offered to prove that the "China" did not belong to them, but to George Gates and others, and was managed and controlled by the owners, and was in the immediate care and charge of their employees, under a contract between said Gates and others and the defendants. There was no evidence that said contract was known to plaintiff, or that he had any notice that the "China" was not owned by the defendants and in their exclusive control. The lower court, without a jury, ordered judgment for plaintiff. MORTON, J., in delivering the opinion of the Supreme Jndicial court, said: "Although a railroad corporation is not respon

sible as

a common carrier for an article of

personal baggage kept by a passenger exclu

sively within his control, it is liable for the loss of such an article by the negligence of the corporation, or its agents, or servants, and without fault of the passenger. Clark v. Burns, 118 Mass. 275; Bergheim v. Great Eastern Ry., 3 C. P. D. 221.

The plaintiff's contract was with the defendant alone. The fact that the car was not owned by the defendant, but was used on its road under a contract with other parties, who furnished conductors and servants to take charge of such cars, there being no evidence that the plaintiff knew of that contract or had any notice that the car was not owned by the defendant and under its exclusive control, could not affect the measure of the defendant's liability to the plaintiff.”

In the next forthcoming volume of the Illinois Reports, the advance sheets of which we have just received through the courtesy of the reporter, Hon N. L. Freeman, we note several cases of interest, where the question of excessive damages has been discussed and determined. In Kolb v. O'Brien, 86 Ill. 210, the plaintiff, a domestic servant, was injured by the negligence of the driver of defendant's omnibus. She, with a number of others, all returning from an exhibition, was waiting on the sidewalk to be carried home. When the omnibus backed up, she placed her foot on the step for the purpose of getting in, when the driver backed it against the sidewalk, crushing her ankle. In consequence of the accident she was disabled from labor, for which she earned four dollars a week, for twelve weeks, incurred a doctor's bill of fifty dollars and was nursed and boarded at an expense of about seventyfive dollars. The testimony did not show that she had suffered any permanent injury. The jury found a verdict in her favor for $2,200, which, on appeal, is reversed, the supreme court saying: "We fail to find anything in the evidence requiring, or even justifying, the assessment of vindictive damages against plaintiff in error. If there was negligence on the part of the driver, as the jury have found, it is not of such a character as to imply malice, or wanton disregard of the safety of defendant or others. It then follows that the

damages should have been compensatory only, whilst they are greatly beyond anything warranted by the evidence.".

In Chicago West. Div. R. R. v. Hughes, 87 Ill. 94, the plaintiff was a workman, and had recovered $4,500 for a fracture of his arm by being run over by a street car. He testified that, since the accident, he could not earn one-half as much as before, as did also his only witness a fellow-workman. The supreme court reversed the judgment on the ground of excessive damages. Upon a former trial this plaintiff had recovered a verdict for $5,000, of which, upon a motion for a new trial, he remitted $2,000, and judgment was rendered for $3,000, which, upon appeal, was reversed for error in an instruction. See 69 Ill. 170.—Pitts. Cin. & St. L. R. R. v. Dewin, 86 Ill. 296, was a somewhat curious case. The plaintiff, a child twenty-seven months old, brought an action, by his next friend, against the defendant, a railroad company, to recover damages for being expelled from one of its passenger trains. The company was operating a road from Chicago to Richmond, Indiana. At the latter place Dewin, his wife, and six children, came upon the train, on their way to Chicago. The oldest child was fifteen years of age; the second one, ten; the third one, eight; the fourth, six; the fifth, plaintiff, twenty-seven months old; and the youngest, eight or nine months. Dewin, the father of the plaintiff, had tickets from Richmond to Chicago for two persons only, and when the conductor on the train called on him for fare for himself and family, the two tickets were of fered for the transportation of the whole family. This the conductor refused. He made no charge for the three younger children, and offered to take the older three at half fare, which was more liberal than the rules of the company, under which he was acting, allowed, as the rules in evidence only provided that children between the ages of five and twelve years could travel on half-fare tickets. Dewin and his wife refused to pay anything on account of the children, and insisted that all the family should be carried on the two tickets. The conductor replied: "You will either have to pay for these children or they will get off." The fares not having been paid, when the train reached the next station, the whole family left the train. They remained over night at Washington, and the day following were carried to Chicago on the next train without the payment of additional fare, having been delayed on the road abou

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