PRACTICE. TIME FOR MAKING CERTAIN OBJECTIONS. Continued.
trial, treated the farm as a single tract in their examination of witnesses
and instructions, and the jury fixed the compensation and the owner's
damages as upon one tract. Upon appeal, the company, for the first
time, objected that the finding should have applied to each tract sepa-
rately: Held, that the objection could not be urged for the first time in
the appellate court. The question could not even be raised on motion
for a new trial. Kankakee & Illinois R. R. Co. v. Chester, 235.
4. That an infant appeared by attorney. The defendant in a suit at
law appeared by attorney, and on the trial it appeared incidentally
that the defendant was an infant. The question of infancy was not
raised in the court below. On error, it was objected, for the first time,
that the appearance should have been by guardian: Held, that a motion
should have been made in the circuit court to set aside the verdict and
judgment on that ground, as an error of fact, when evidence could have
been heard on both sides, and the decision of the court thereon might
then be reviewed. Mains v. Cosner, 465.
5. Whether the proceedings in attachment of a vessel show jurisdiction in the
court below-objection should be made in that court. See ATTACHMENT
OF BOATS AND VESSELS, 5.
REJECTING MERELY CUMULATIVE EVIDENCE.
6. Not error. Where a plaintiff has already proved a certain fact
which is not disputed by the defendant, it is no error to reject other
proof to the same effect. Reynolds v. McCormick, 412.
ADMITTING FURTHER EVIDENCE.
7. After the argument has commenced. It is purely a matter of discre-
tion with the court trying a case whether it will admit new or further
evidence after the testimony has been closed and the argument com-
menced. Goodrich v. City of Minonk, 121.
OF THE ORDER OF INTRODUCING TESTIMONY.
8. Under our practice a party has the right to introduce his evi-
dence in the order he may prefer, provided he will connect it, and thus
render it material to the issue. Thus, he may first show the acts and
statements of one claiming to be an agent, to bind the principal, if he
will follow it with proof of the agency, and show that the agent's acts
were within the scope of his authority. Mix v. Osby, 193.
JURY TAKING MATTERS IN EVIDENCE TO THEIR ROOM.
9. Where a hotel register was given to the jury by consent, in order
to prove the handwriting of defendant by comparison with the signa-
ture of the note sued on, and examined by the jury: Held, no error to
refuse to permit the jury to take the register in their retirement, as it
was not evidence of itself. Cox v. Straisser, 383.
10. To let in parties not served, to defend. See JUDGMENTS, 2, 3, 4.
PRACTICE IN THE SUPREME COURT.
WHO MAY COMPLAIN OF ERROR.
1. Where the court, in modifying an instruction asked by the de-
fendant, merely employed the language of the defendant used in an-
other of his instructions, it was held, although the instruction as thus
given was erroneous, the defendant could not be allowed to complain.
Pierce v. Millay, 133.
ERROR WILL NOT ALWAYS REVERSE.
2. Exclusion of proper testimony. The defendant in a suit brought to
recover damages on the ground of false and fraudulent representations
made by him in effecting a sale of certain lands to plaintiff, testified
that he bought the land of one H, and was then asked, "How much
did H tell you was prairie, and how much timber, at the time you pur-
chased of him?" The court sustained plaintiff's objection to the
question. It appeared that this took place about eleven years before
the sale to plaintiff, and defendant's representations as to the character
and quality of the land from personal knowledge acquired about three
years before the sale: Held, that while the statements of H to defend-
ant might not have been altogether irrelevant as affecting defendant's
honest belief of the condition and quality of the land sold to plaintiff,
and, therefore, admissible, yet its weight as evidence was so light, in
view of the other facts, that its rejection could not be looked upon as a
substantial error. Drew v. Beall, 164.
3. Of improper instructions. Where the court instructed the jury
there was no evidence of a material fact involved, and there was evi-
dence admitted on the point, which this court deemed wholly insuf-
ficient to establish the fact: Held, that, as the error worked no preju-
dice, it was no ground for reversal. Stobie et al. v. Dills, 432.
4. Refusing a continuance. Where a complainant made a substantial
amendment to her bill, the defendant moved for a continuance on that
ground, which the court overruled: Held, on appeal, when it appeared
that the cause was afterward continued by the expiration of the term,
the error did no injury, and furnished no ground of reversal. Baker
et al. v. Scott, 86.
PRESUMPTIONS.
OF LAW AND FACT.
1. When a bill of exceptions fails to state that it contains all the evidence-
presumption. See EXCEPTIONS AND BILLS OF EXCEPTIONS, 2.
2. As to jurisdiction of probate court in granting letters of administration.
See ADMINISTRATION OF ESTATES, 2.
3. As to negligence of bailee. See EVIDENCE, 5.
4. As to the authority of an attorney. See ATTORNEY AT LAW,
1, 2.
5. As regards the sanity of a person. See INSANITY, 1, 2, 3.
PRINCIPAL AND AGENT. See AGENCY.
PRIVILEGED COMMUNICATIONS. See LIBEL, 1.
PROBABLE CAUSE. See MALICIOUS PROSECUTION, 1, 2, 3.
1. After expiration of office. A sheriff after the expiration of his
term of office may amend or make a return of service of process duly
performed by him while in office, when the service is recent. Howell
et al. v. Albany City Ins. Co. 50.
Construction. An officer's return of service of a summons in chan-
cery issued against A and B was "served by delivering a copy of the
within writ to A and B, this 15th day of September, 1870: " Held, that
it showed a service on each defendant by copy. Reed v. Moffatt et al.
300.
WHAT OFFICERS MAY SERVE PROCESS. See ELISOR, 1; DEPUTY, 1.
1. Where a promissory note is made payable at a specified time
and place, it is not necessary for the payee to make a demand of pay-
ment at the time and place specified in order to maintain an action upon
the note, or a bill to foreclose a mortgage executed to secure the pay-
ment of the note. Neaton et al. v. Berney, 61.
READINESS TO PAY-INTEREST.
2. But if in such case the maker of the note is at the place of pay-
ment at the time designated, and is ready and offers to pay the money,
but can not because the note is not there ready to be surrendered, such
readiness and offer on the part of the maker will discharge him from
liability to pay interest accruing after the maturity of the note. Ibid.
61.
3. State of war-effect on accruing interest. So, where a note executed
in the year 1857 was made payable at a specified time and place in the
city of Chicago, and at the time the note became due the payee resided
in the then rebellious States of the Union, and had the note there in
his possession, it was held, that the fact of the existence of a state of
war would not relieve the makers who resided within the Union lines
from the payment of interest on the note accruing after its maturity
and during the existence of hostilities, as no legal obstacle was in the
way of their being at the time of payment at the place designated, the
same being within the Union lines, and offering to pay the note, thus
relieving themselves from liability to pay such interest. Such readiness
and offer to pay would have been no breach of duty toward their gov-
ernment. Nor did the fact of the existence of hostilities between the
PROMISSORY NOTES. READINESS TO PAY--INTEREST.
Continued.
United States Government and the confederate de facto government re-
lieve such of the makers of the note as resided within the confederate
lines from liability to pay such interest, as no legal obstacle was in the
way of their paying the note there to the payee, the latter also residing
there and having the note in his possession. Yeaton et al. v. Berney, 61.
CONVEYANCE SUBJECT TO A MORTGAGE.
1. Whether purchaser liable to pay the mortgage. Where a party re-
ceives a warranty deed containing a clause that it is made subject to a
mortgage given upon the land by the grantor to a third party, this will
create no personal liability on the part of the grantee to pay the out-
standing incumbrance, unless he has specially agreed to do so, or the
amount of the incumbrance has been deducted from the purchase price.
The effect of such clause is to make the land the primary fund as
between all the parties for the payment of the debt. Fowler v. Fay et al.
375.
ADMINISTRATOR BUYING AT HIS OWN SALE.
2. Where an administrator is the real purchaser at a sale of land by
him for the payment of the debts of his intestate, by procuring another
to bid off the land for his benefit, and such nominal purchaser, shortly
after receiving a deed, conveys the premises to the administrator, a
court of equity will set aside the sale on the application of the heirs.
Williams v. Walker et al. 517.
PURCHASER AT JUDICIAL SALE.
3. Effect of subsequent reversal. The law is well settled on grounds of
public policy, that the rights of persons, not parties to the record, or
privies, acquired under judicial sales, when the court had jurisdiction,
will not be affected by a subsequent reversal of the decree or order
under which they were acquired. Hobson et al. v. Ewan, 146.
1. Liability for debts of original companies—under act of 1867. The act
of 1867, which provides that, in case of consolidation of two or more
railroad companies, the consolidated company shall be liable for all
debts of each company entering into the arrangement, is not retrospect-
ive, but was designed to apply to companies which might consolidate
after its passage. Hatcher v. Toledo, Wabash & Western Railroad Co. 477.
2. Liability for debts by subsequent legislation. A railroad company be-
ing authorized by its charter to borrow money and secure its payment
by mortgage or deed of trust of its road, property, and income, but not
of its franchise, executed a deed of trust on its road, property, rights,
and franchise, under which the trustees sold and conveyed the same to
RAILROADS. CONSOLIDATED RAILROADS.
certain parties, who organized a new company under the old name.
Subsequently, a special act of the legislature was passed authorizing
the president of the old company to transfer the corporate franchise to
the purchasers, which he did, and the old corporation ceased to exist:
Held, that the purchasers at the trustee's sale having acquired a valid
title to the property of the corporation without liability for any of its
debts which were not a prior lien, their rights could not be taken away
or impaired by subsequent legislation; and having consolidated with an-
other company prior to the act of 1867, the consolidated company was
not liable for the debts of the first-named corporation. Hatcher v. Tole-
do, Wabash & Western Railroad Co. 477.
3. To render valid acts of a company, done without authority. Where a
railroad company has made a mortgage or sale of its corporate fran-
chise, without authority in its charter, the same inay be ratified and
rendered valid by subsequent legislative enactment. The right to ob-
ject to such transfer is one affecting the public alone, which the legisla-
ture, as the representatives of the people, may waive by a subsequent
act. Ibid. 477.
4. Thus a railroad company not authorized to incumber or transfer
its corporate franchise, executed a deed of trust on its road, property,
rights, and franchise, under which the trustee sold and conveyed the
same. The president of the company, under a subsequent act for that
purpose, transferred the corporate franchise to the purchasers; Held,
that even if the franchise could not be transferred without the consent
of the legislature, it might be subsequently given; and that the State
having assented to the sale of the franchise, no other party could inter-
fere. Ibid. 477.
SALE OF FRANCHISE UNDER EXECUTION.
5. It seems that without legislative authority, the franchise of a rail-
road company can not be subjected to sale on judgment and execution
for its debts. Ibid. 477.
RATIFICATION.
AS TO A FORGED SIGNATURE.
1. One whose name has been attached to a note as surety, without
authority becomes liable, if, upon inspection, he admit the signature to
be his. After such admission he is estopped from denying the making
of the note. Hefner v. Vandolah, 483.
2. Nor is it necessary, to establish a ratification, that there had been
any previous agency created. An act wholly unauthorized may be
made valid by a subsequent ratification. Ibid. 483.
3. A person who has signed several notes of like character, and, who
under a mistake admits the signature of one, especially if not shown
him, is not estopped from his plea denying his signature. Ibid. 483.
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