1. After demurrer overruled. Where a defendant demurs to a
declaration, and pleads over after his demurrer is overruled, he will
be precluded from insisting upon a motion in arrest of judgment,
for insufficiency of the declaration. Shreffler et al. v. Nadelhoffer,
536.
2. If a declaration contains one good count, that will be suffi-
cient to sustain a general verdict, even though all the other counts
are defective. Ibid. 536.
3. Cured after verdict. Where the statement of the plaintiff's
cause of action, and that only, is defective or inaccurate, the defect
is cured by a general verdict in his favor, for the reason that, to
entitle him to recover, everything, in form or substance, to com-
plete his title so defectively stated, must be proved at the trial, and
it is therefore a fair presumption that such proof was made. When
no cause of action is stated, the omission is not cured by the ver-
dict. Ibid. 536.
4. A count upon an appeal bond, seeking to recover damages
upon the ground that the plaintiff was prevented by the defendant
from making sale of a promissory note, alleged that he had offers
to buy such note: Held, that as the count was sufficient to admit
proof of the names of the parties with whom the plaintiff had ne-
gotiated the sale of the note, and to whom he was prevented from
making the sale, it was sufficient after verdict, as it would be pre-
sumed that the proof showed a cause of action. Ibid. 536.
ASSIGNEE BEFORE MATURITY.
1. How far protected—subject to defenses. The assignee of a
note or negotiable paper, before maturity, without notice, will, un-
der the statute, be protected against a want of consideration or an
illegal consideration; yet if he goes into a court of equity to fore-
close a mortgage or deed of trust given to secure such note, he will
hold it subject to the legal and equitable defenses to which it
was liable before it came to his hands. Scott et al. v. Magloughlin
et al. 33.
ASSIGNMENT OF A MORTGAGE.
2. What character of interest passes--negotiability. See MORT-
GAGES AND DEEDS OF TRUST, 1.
AS TO STOCK IN CORPORATION.
3. Joint liability of the assignor and assignee. See CORPORA-
TIONS, 25.
FRANCHISE OF CORPORATION.
4. Not assignable. See CORPORATIONS, 6 to 9.
ASSIGNMENT FOR THE BENEFIT OF CREDITORS. See INSOLVENT
DEBTORS.
MONEY PAID BY MISTAKE OF FACT. See ACTIONS, 1.
1. Appointment and compensation. The statute giving a per diem
for constables who may be required to attend upon courts of record,
to be paid by the county, would seem to be intended to supply
the bailiffs necessary for the transaction of the business of the
courts. In practice, the presiding judge certifies to the number
of bailiffs required, and their attendance; but whether this prac-
tice is proper or not, the sheriff, by virtue of his office, is neither
required nor authorized to certify to their accounts. The People,
for use of Macon County, v. Foster et al. 496.
1. Promise of acceptance-upon consignment of property-con-
signment not completed. If one agrees to accept a draft before it is
drawn, for the cost of cattle, and the cattle are consigned to him,
he will be liable on the draft as fully as if he had formally accepted
the same upon its presentation. Hall et al. v. First Nat. Bank of
Emporia, 234.
2. Where a party agrees beforehand that he will accept a draft to
be drawn on him for cost of cattle consigned to him, he will be
liable to a bona fide holder of the draft, although the cattle for
which it was drawn never reached the consignee, and an inferior
lot is by mistake shipped to him. Ibid. 234.
3. And where the party agrees to accept and pay a draft for cattle
bought and consigned to him, without requiring a bill of lading to
be attached, he, and not the party who in good faith advances money
on the draft, relying on such promise to accept and pay, takes the
risk of the stock being diverted while in transit, either by accident
or design. Ibid. 234.
4. Stock brokers at the Chicago Union Stock Yards telegraphed
to a banker: "We will honor G. & W.'s draft for cost of cattle and
hogs consigned to us." Quite a number of such drafts were hon-
ored, but acceptance of the last draft drawn and discounted was
ACCEPTANCE OF DRAFT. Continued.
refused: Held, that for the purpose of showing whether the promise
of the brokers was for one draft, only, or for all such drafts as might
be drawn, the jury had the right to consider the arrangement or
contract between G. & W. and the brokers, for the shipping to the
latter of live stock, and all the facts and circumstances proven, and
the construction the parties themselves put upon their contract.
Hall et al. v. First Nat. Bank of Emporia, 234.
5. Accepting consignment-as an acceptance of draft. If a broker
takes a consignment of a lot of cattle with the knowledge that a
draft has been drawn on him for the same by the consignor, he can
not retain the cattle, or proceeds, and repudiate the draft, but must
pay it. Ibid. 234.
6. Presumption. The holder of a draft will, in the absence of any
evidence tending to show the contrary, be presumed to be a bona
fide holder for value. Ibid. 234.
Construction-rule of construction. See CONTRACTS, 5.
2. Measure of recovery. See MEASURE OF DAMAGES, 1.
OFFICIAL BONDS-SHERIFF'S BOND.
3. Action thereon-of the pleadings. See PLEADING, 1, 2, 6.
4. Surety on sheriff's bond—extent of liability. See SURETY, 4, 5.
LIMITING LIABILITY BY CONTRACT.
1. The statutes construed. The act of March 27, 1874, relating to
common carriers, and section 33 of chapter 114, on the same subject,
do not prohibit common carriers from limiting their common law
liability by contract with the owner of property delivered for trans-
portation. They only prohibit the limitation of the carrier's liability
by a stipulation or clause expressed in the receipt given for the
property. Chicago and Northwestern Ry. Co. v. Chapman, 96.
2. A railway carrier in many respects may, by express contract,
limit its strict common law liability. It may, by special contract, limit
its liability to such damage or loss as may occur on its own line of
carriage, and against loss by fire without its fault; and its liability
may thus be limited as an insurer, and against other loss not attrib-
utable to its negligence or that of its servants; and it may require
the value of goods offered for transportation to be fixed by the
shipper, to protect itself against fraud in case of loss. Ibid. 96.
3. But in this State a common carrier can not, even by express
contract, exempt itself from liability resulting from gross negli-
CARRIERS. LIMITING LIABILITY BY CONTRACT. Continued.
gence or willful misconduct committed by itself, or its servants or
employes; nor can it limit its liability in amount, as against dam-
ages resulting from such negligence. Chicago and Northwestern
Ry. Co. v. Chapman, 96.
4. Nor does the law authorize common carriers to fix, arbitrarily,
the value of goods delivered to them for transportation, and there-
by limit their liability in case of a loss. If the value is agreed on,
and the contract of shipment is based on such value, the amount
thus fixed would ordinarily determine the liability of the carrier.
But if untruthfully given in respect to property that the carrier
had less opportunity to inspect or know the value of than the ship-
per, it would not estop the carrier from showing the value was less
than that fixed. Ibid. 96.
5. A railway company, on the delivery of a number of horses to
it for transportation, gave to the owner's agent a contract or receipt,
in which it was stated, that in consideration of special rates, etc., the
company assumed no liability on horses for more than $100 per head,
unless by special agreement noted thereon: Held, the clause in the
contract attempting to limit a recovery to $100, as against gross
negligence, was void; but if the injury to the property, and the
damages resulting, had been caused by any casualty against which
the carrier might contract, the limitation, if knowingly assented to
by the shipper, might govern. Ibid. 96.
CARRYING GAME OUT OF SEASON.
6. Liability of the carrier. See GAME LAW, 4.
1. Generally. A court of equity, when its power is invoked, will
not deprive a party, unless controlled by some inflexible rule of
law, of such defenses, either legal or equitable, as are intrinsically
just in themselves, or permit the complainant to recover contrary
to the principles of equity. It will deny relief if there are any
equitable reasons why its aid should be withheld, or if, in equity
and good conscience, the relief should not be granted. Scott et al.
v. Magloughlin et al. 33.
RELIEF AGAINST JUDGMENT AT LAW.
2. Reviewing the rulings of the trial court. A court of equity will
not take jurisdiction to review the rulings of a court at law, where
the latter court had jurisdiction to render the judgment sought to
be reviewed. Commercial Union Assurance Co. v. Scammon, 627.
3. On account of mere error in the law court. The rule that relief
in equity will be granted against a judgment at law when the de-
fense could not, at the trial, or under the circumstances, be made
RELIEF AGAINST JUDGMENT AT LAW. Continued.
available, without any laches of the party, does not apply to a case
where the only reason why the defense could not be availed of was
an erroneous ruling of the law court. Commercial Union Assurance
Co. v. Scammon, 627.
4. By reason of laches-in setting up defense at law. Whether a
party insured is estopped by his conduct from suing upon his policy
of insurance, is a question which it is competent for a court of law
to decide, and if this or any other legal defense is not interposed
in the action at law upon the policy, the defendant in the judg-
ment will be guilty of such laches that equity will not relieve him.
Ibid. 627.
REMOVING CLOUD UPON TITLE.
5. In what cases a bill will lie. There are but two cases under
our statute in which a bill to remove a cloud from title can be
maintained, viz., when the complainant is in possession of the prem-
ises, or where they are unoccupied. Glos et al. v. Randolph, 197.
6. An allegation in a bill to remove a cloud on title, that the
premises are vacant and unoccupied, is material, and without proof
of it the bill should be dismissed. Ibid. 197.
7. Setting aside a tax deed-upon terms. Where the owner seeks,
in a court of equity, to set aside a tax sale and deed of his land,
he will be required, as a condition to the relief sought, to pay the
amount for which the land was sold, all subsequent taxes, and inter-
est thereon at six per cent, whether he has offered to do so in his bill
or not. A party seeking equity must do equity. Smith v. Prall, 308.
8. So where a person owning land adjoining a tract sold for
taxes, by mistake paid the taxes on the latter tract, supposing he
was paying the taxes on his own land, and upon the discovery of
the mistake the holder of the tax title repaid him the amount so
paid, and the tax receipt was altered so as to show payment by the
holder of the tax title, it was held, that it was the duty of the person
seeking to have the tax title set aside, to pay such tax, with interest,
as a condition to the relief sought. Ibid. 308.
9. Extent of the relief granted. A court of equity, on proper bill,
has the power to set aside a tax sale and deed, on the ground that
the sale and deed may be void for the reason the law has not been
complied with; but it is error for it also to set aside a deed from the
holder of the tax title to the defendant. Ibid. 308.
10. Requiring a quitclaim as to opposing title. It is proper, on bill
to remove an apparent title standing upon the records, as a cloud
on the title, to require the defendant to give the complainant a
quitclaim deed for the land, and on his failure to do so to direct
the clerk of the court to make one for him, and to cancel the op-
posing interest of the defendant. Miller v. Rice et al. 315.
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