THE COURT SHOULD DISTRIBUTE THE FUND.
1. On bill against an insolvent insurance company, filed by credi-
tors, the court appointed the master in chancery receiver, and directed
him to collect the debts owing to the company, and apply the proceeds
in payment of complainants' judgments: Held, that the decree was too
broad. It should have directed the proceeds to be brought into court,
so that the court might distribute it to the creditors entitled. Benne-
son v. Bill et al. 408.
2. As to master in chancery. Ordinarily, the appointment of a re-
ceiver is a matter of discretion; but there are persons, who, owing to
their position, are not usually competent to act as such. A party to the
suit is not, unless by consent of both parties. And a master in chan-
cery, being an officer of court, whose duty it is to pass upon the ac-
counts. and check the conduct of a receiver, is disqualified from being
appointed receiver. Ibid. 408.
CONTINUANCE OF A PRELIMINARY EXAMINATION.
1. Whether the recognizance is thereby discharged. A party charged with
larceny, having undergone a partial preliminary examination, was re-
cognized to appear before the justice "on the second day of February,
A. D. 1869 * ** * and from day to day thereafter until discharged
by order of the court," for the purpose of a further examination. The
accused appeared on the 2d of February at the time appointed, when
one witness was sworn and the prosecution continued until the 6th of
February without any new bond. The accused failed to appear on the
6th, and the justice then made the following entry: "Defendant did
not appear, so the court considered that the bond of recognizance be
forfeited," etc.: Held, the accused having appeared on the day fixed in
the recognizance, and thus complied with its condition, the justice had
no right to enter a default for his non-appearance on the 6th, and a scire
facias issued on such default was void. Ogden et al. v. The People, 63.
FROM SALE UNDER EXECUTION.
1. By a judgment creditor-where the judgment was fraudulent. Where
the owner of an equity of redemption transferred the same to hinder
and delay creditors, and afterward gave a note with a power to take
judgment against him by confession, to enable a third party to levy
upon and sell the land and redeem the same, and there was no consid-
eration whatever for the note, and the holder of the note after judg-
ment, levy, sale, and sheriff's deed for the land, filed his bill to avoid
the transfer of the equity of redemption for fraud, and to redeem from
REDEMPTION. FROM SALE UNDER EXECUTION.
the debtor's deed of the land given in the nature of a mortgage: Held,
that as the note, which was the foundation of the judgment, was given
in bad faith and without consideration, there was no debt, and conse-
quently the judgment could form no basis in equity for the redemption.
Arnold et al. v. Gifford, 249.
2. The fact that a debtor confesses judgment in favor of a creditor
for the express purpose of enabling the latter to redeem, will not inval-
idate the redemption, if there be no fraud in the consideration; but
where judgment is confessed or procured where no debt, in fact, exists,
and it is done in bad faith and fraudulently, the party seeking to re-
deem under such judgment, being a mere volunteer, and a party to a
fraudulent plan, will receive no aid or assistance in a court of equity.
Ibid. 249.
REDEMPTION FROM A MORTGAGE.
3. Of the terms thereof where the mortgagee has acquired a tax title. See
MORTGAGES, 13.
Where unity of seizin of a building is severed—remedy where one of the pur-
chasers attempts to disturb an easement. See INJUNCTIONS, 2, 3.
WHEN THE ACTION WILL LIE.
1. Where liquors were seized under a city ordinance which was void,
the action of replevin will lie for their recovery. Sullivan v. Stephenson
et al. 290.
PLEA OF PROPERTY IN DEFENDANT.
2. In replevin, the plea of property in defendant is mere inducement
to the formal traverse of the right of property in the plaintiff. It is not
even traversable. Reynolds v. McCormick, 412.
3. Under such a plea the issue to be tried is not whether the prop-
erty is in the defendant, but whether the right of property and the right
to immediate possession is in the plaintiff. On such an issue the
plaintiff must recover on the strength of his own title, and the burden
of proof is on him to establish his right. Ibid. 412.
EFFECT OF VERDICT ON TITLE.
4. In replevin, where the defendant pleaded property in himself,
and the proof showed that he owned the property jointly with the
plaintiff: Held, that a verdict for defendant on such issue did not de-
termine judicially that the property was that of defendant exclu-
sively, and that such finding did not affect plaintiff's right to recover
the undivided half. Ibid. 412.
5. Where the plaintiff sought to recover possession of property in
an action of replevin, claiming to be the exclusive owner thereof, and
the defendant pleaded property in himself, the proof showing that the
property was owned in partnership by the plaintiff and defendant:
Held, no error for the court to award a return of the property to defend-
ant on a verdict finding such issue in favor of defendant. If the prop-
erty was, in fact, partnership property, the possession of either was
lawful. Reynolds v. McCormick, 412.
BY ONE PARTNER AGAINST ANOTHER.
6. It seems that where property is owned by two persons jointly as
partners neither can maintain replevin against the other for the exclu-
sive possession. Ibid. 412.
RETURN UPON PROCESS. See PROCESS, 1, 2.
PURCHASER AT JUDICIAL SALE.
Not affected by subsequent reversal of the judgment or decree. See PUR-
CHASERS, 3.
DEATH OF SOLE PLAINTIFF IN EJECTMENT.
Revivor in names of a part of the heirs. See EJECTMENT, 1, 2.
CONSTITUTION OF 1870, AND THE ACT OF 1852.
1. Compensation-trial by jury. The 13th section of the Bill of Rights
of the constitution of 1870, placing restrictions upon the exercise of the
right of eminent domain, is not merely prospective in its effect, but
operated in presenti, without legislative action. The People ex rel. v.
McRoberts, 38.
2. It provides that private property shall not be taken or damaged
for public use without just compensation; and that such compensation,
when not made by the State, shall be ascertained by a jury, as shall be
prescribed by law. The requirement that the compensation shall be
ascertained by a jury is affirmative in its character, and must imply an
exclusion of any other mode of fixing the compensation. If there was
no law under which a jury could be impaneled for the ascertainment
of such compensation, and the legislature neglected to provide one, the
constitution would not, for that reason, be in abeyance; but until such
law was provided, the right of eminent domain could not be exercised.
Ibid. 38.
RIGHT OF WAY. CONSTITUTION OF 1870, AND THE ACT OF 1852. Con-
tinued.
3. The compensation for property damaged, as well as taken, must
be ascertained by a jury. It can be neither damaged nor taken without
compensation; and there can be no entrance upon or possession of land
for public use until the compensation for the land damaged, as well as
taken, has been paid. The People ex rel. v. McRoberts, 38.
4. The first six sections of the Act of June 22, 1852, which provides
for the filing of a petition, due notice to the persons interested, the ap-
pointment of commissioners, their inspection of the premises, and a
report of the compensation assessed by them to be filed with the clerk
of the Circuit Court, are in no sense in conflict with the constitution of
1870. Ibid. 38.
5. But the 7th section, which makes the decision of the commission-
ers conclusive upon the parties before they can have the benefit of a
trial by jury, is inconsistent with the letter of the constitution. The
assessment and report of the commissioners should conclude no owner of
the land, and confer no right upon the corporation, unless the land
owner assents, by an acceptance of the compensation, or in some other
manner. Ibid. 38.
6. So Section 9, which requires the execution of a bond upon taking
an appeal from the decision of the commissioners to the Circuit Court,
is clearly annulled by the new constitution. Ibid. 38.
7. And section 12, which permits the land to be entered upon during
the pendency of the appeal, is manifestly inconsistent with the Bill of
Rights. Ibid. 38.
8. But there is enough of the act which is not inconsistent with the
constitution to enable private property to be taken for public use. The
commissioners may act, and, after notice of the filing of their report,
parties may bring the proceedings before the Circuit Court, as provided
in sections 10 and 11 of the act. If satisfied with the report, and the
compensation fixed, the latter may be accepted, and then an adjustment
can be made by those who are competent to act. If the report is not
satisfactory, then notice should be given to the opposite party, as pro-
vided in the sections referred to, so that a trial can be had in the Cir-
cuit Court. Ibid. 38.
9. But the party whose land is sought to be taken ought not to be
compelled to pay costs if the assessment of the commissioners should be
affirmed or not increased. Ibid. 38.
10. Whether excessive. Where the land sought to be taken by a rail-
road company for right of way, situate in the limits of the city of Pe-
oria, was over ten acres and twenty-five witnesses sworn estimated the
RIGHT OF WAY. ASSESSMENT OF DAMAGES.
damages to the land owner at various sums, ranging from $1,800 to
$18,000, and the jury assessed the damages at $5,500: Held, that the
damages were not excessive. Peoria & Rock Island Railway Co. v. Birkett,
332.
11. Finding as to fencing. On a proceeding to condemn land for right
of way by a railroad company, the jury, in their verdict, found the value
of the land taken at $3,000, and the damages, aside from the value of
the land taken, to the land owner, over and above the benefits, at $2,500,
making in all $5,500. It was objected that the verdict was defective in
making no reference to the fencing, and keeping the same in repair. It
was held that as there was no proof as to the fencing, the jury could not
find a verdict as to its cost. Ibid. 332.
12. While it is true that, in a proceeding to assess damages for a
right of way for a railroad company, the cost of erecting and maintain-
ing fences along the line of the proposed road is proper to be consid-
ered by the jury as an element of damages, yet when no proof is offered
on the subject, the jury will not be required to find in their verdict any
thing in respect to it. Ibid. 332.
13. Of the fee simple title. Where a proceeding was commenced to
condemn land by a railroad company previous to the adoption of the
present constitution, under a charter which gave the land appropriated
in fee simple to the company, but the assessment of damages was had
after the adoption of the present constitution, it was held that the rights
of the parties were to be decided under the charter, and that an instruc-
tion telling the jury that the company acquired no title to the land,
and that they should consider such fact in assessing damages, was prop-
erly refused. Ibid. 332.
14. Future damages from changes. A railroad company condemning
land for its right of way must construct its road as indicated by its
maps and plans introduced upon the trial of the question of damages.
A subsequent alteration will give the land owner a right to recover for
damages resulting therefrom. Ibid. 332.
15. Mode of arriving at a verdict by the jury. On an assessment of
damages for right of way, where there was a great difference in the esti-
mates of the witnesses, the court was asked to instruct the jury, 1st, that
they had no right to take an average of the testimony, and then told
them they had no right to set down and add up the amounts sworn to
by each witness, and then divide by the number of the witnesses, which
was refused: Held, that the latter part of the instruction might prop-
erly have been given if asked alone, but taken with the first clause, was
properly refused as erroneous, and calculated to mislead. Ibid. 332.
16. A jury may always take an average of testimony, if properly
done, by a consideration of all the elements and circumstances which
are referred to in the law as proper to aid in determining the weight of
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