NEGLIGENCE. REMOTE AND PROXIMATE CAUSE. Continued.
10. In this case, which was an action against a railway company to
recover for the loss of the plaintiff's house by fire, alleged to have been
occasioned by the negligence of the company, it appeared that a loco-
motive, with a train of freight cars, belonging to the defendant, in pass-
ing eastwardly through a village, threw out great quantities of unusu-
ally large cinders, and set on fire two buildings and a lumber yard.
The weather at the time was very dry, and the wind blowing freely
from the south. One of the buildings ignited by the sparks was a
warehouse near the track. The heat and flames from this structure
speedily set on fire the building of plaintiff, situated about two hun-
dred feet from the warehouse, and destroyed it. It was held, the com-
pany was not exonerated from liability merely because the plaintiff's
house was set on fire, not immediately by cinders thrown from the lo-
comotive, but by the burning of another house. The case was one
calling for the application of the rule before announced, the liability
of the company depending upon the question whether the second
house was so near the first that, in the then state of the wind and
weather, its destruction was a natural consequence of the burning of
the first, which any reasonable person could have foreseen and would
have expected. Fent et al. v. Toledo, Peoria & Warsaw Railway Co. 349.
11. How the rule affected by the extent of the loss to the wrong doer.
The propriety of the rule for determining what is a proximate cause
of the injury in such a case, can not be affected by considerations as to
the extent of liability to which railway companies might be thereby
subjected, even to producing bankruptcy, and compelling them to sus-
pend their operation. Ibid. 349.
WHERE A SURETY SIGNS A BOND ON CONDITION.
12. The condition being that the bond shall not be delivered to the obli-
gee until another signs it as surety-duty of the obligee. See SURETY, 2.
IN RESPECT TO DEFECTIVE STREETS IN CITIES.
13. Liability of cities, and of contributory negligence. See HIGH-
WAYS, 5, 6, 7.
1. In an action on a promissory note, where the judgment was too
large by the sum of eighteen cents, the excess being simply an error
in the computation of the amount found to be due on the note, it was
held, the amount was too trifling to be made a ground for the reversal
of a judgment. Tipton et al. v. Utley, 25.
2. In this case the verdict of the jury is not sustained by the evi-
dence, and the judgment is, for that reason, reversed. Kuhner v.
Griesbaum, 48.
3. In this case, in which one of the issues presented the question
whether the defendant promised to marry the plaintiff, it was held a
verdict for the plaintiff was not supported by the evidence. Brough-
ton v. Smart, 440.
4. When the circuit court offers a party a new trial on the terms
that he pay the costs, and the offer is declined, and the motion is over-
ruled and judgment rendered on the verdict, the party may still pros-
ecute error, and urge the refusal to give proper, and the giving of im-
proper instructions, as grounds of reversal. Wiley v. Town of Brim-
field, 306.
1. To subsequent purchasers. Where a vendor of land continues to
remain in possession of the premises, such possession will constitute
constructive notice to a subsequent purchaser from his vendee, of the
rights and equities of the first vendor in the land, and the second pur-
chaser will hold subject to those rights and equities. Illinois Central
Railroad Co. v. McCullough, 166.
2 Proof as to what is a corporation newspaper. Where a city char-
ter required the common council to designate a newspaper in which
notices and the proceedings of the corporation should be published,
it appeared that such notices and proceedings were published in a par-
ticular paper, and it was recognized by the officials as the corporation
newspaper,—a certificate of publication given by the publisher, was
offered in evidence: Held, that such facts, as to the public, and third
persons, were prima facie evidence that the paper had been designa-
ted as the corporation paper, and the appointment need not be proved
by producing the record showing the appointment; that it is similar
to proof that a person has acted as a public officer, which is prima fa-
cie, without producing his commission. Rich et al. v. City of Chicago,
286.
TAXING ATTORNEY'S FEES AS COSTS.
3. Necessity of notice. In a suit for an assignment of dower, and
for partition, an order allowing a large sum as attorney's fees to be
TAXING ATTORNEY'S FEES AS COSTS.
taxed as costs, the fees allowed by the court amounting to $1200, with-
out notice to the parties to be affected thereby, is void upon principles
of natural justice, without reference to any other consideration. Lilly
et al. v. Shaw et al. 72.
4. To pass over the land of another-whether notice required. See
LICENSE, 1.
IN THE MATTER OF A SPECIAL ASSESSMENT.
Of the oath of the commissioners. See SPECIAL ASSESSMENTS, 1.
ORDER TO SUSPEND SALE UNDER EXECUTION.
1. Liability of the officer for disregarding instructions—and to whom.
Where an officer, who has an execution in his hands, sells property
contrary to the instructions of the plaintiff to suspend the sale, he
thereby incurs a liability to the defendant in the execution, for the
damage sustained by reason thereof. Morgan et al. v. The People, use
of Lewis, 58.
2. So, it is no answer to the declaration, in an action of debt on a
sheriff's bond, where the breach assigned is, that the officer sold prop
erty of the defendant in the execution, after being ordered by the
plaintiff to suspend the sale, that the property was so sold by virtue
of such execution, in the hands of the officer, against the goods and
chattels of said defendant. Ibid. 58.
3. Nor is it a defense that the sale was so made by direction of the
plaintiff's attorney, it not appearing but that the attorney may have
violated the orders of the plaintiff. Ibid. 58.
4. Giving such direction by telegraph. See TELEGRAPHY, 1.
TRESPASS BY AN OFFICER.
5. In the execution of process-of the rights of privies to the judgment.
A person who was a silent partner of the plaintiff in an action of re-
plevin, in respect to the goods involved in the suit, purchased his co-
partner's interest therein pending the suit, and took the property into
his own possession. The action of replevin was dismissed without a
trial upon the merits, and a writ of retorno habendo awarded, which
was placed in the hands of an officer, who went upon the premises of
the party who had thus obtained the possession of the goods, and
seized them under the writ: Heid, the person from whom the goods
were taken under the writ of retorno habendo, in either capacity—as a
partner of the plaintiff in replevin, or as his vendee pending that
OFFICERS. TRESPASS BY AN OFFICER.
suit was a privy to the judgment awarding the writ of retorno, and
was estopped from asserting his title as against the right of the officer
to execute the writ. The officer was not a trespasser in making return
of the property. Merritt et al. v. Eagan, 212.
INCREASING LIABILITY OF SURETY.
After the execution of the bond. See SURETY, 4, 5.
Whether one of them may buy in an outstanding title. See JOINT
RIGHTS AND INTERESTS.
WHETHER FORMER LIABLE FOR THE TORTS OF THE LATTER.
A father is not liable for the torts of his children, committed with-
out his knowledge or consent, and not in the course of his employ.
Wilson v. Garrard, 51.
1. The bonds of a county, issued upon a subscription of the county
to the stock of a railroad company, were placed by the county authori-
ties in the hands of a custodian, to be delivered to the company on
certain conditions. The company having incurred a debt on account
of work done on the road, gave to their creditor an order on the
custodian of the bonds for a sufficient amount of them to satisfy the
claim, and that order was assigned to a third person. Another com-
pany succeeded to the rights and franchises of the original company:
Held, in a suit by such holder of the order given for the bonds by the
original railroad company, to compel the delivery of them by the
custodian, such original company, having ceased to exist and all its
rights and franchises vested in its successor, is not a necessary party
to the bill. Thomas v. County of Morgan et al. 479.
MAKING NEW PARTIES IN CHANCERY.
2. Necessity of amending bill. A, being the equitable owner of the
first of two promissory notes secured by a mortgage, filed a bill to
procure a sale of the mortgaged premises, making B a defendant, and
alleging that the second note had been assigned to him; that he had
obtained judgment on it, and sold and bid in the mortgaged premises
under his judgment. B answered, setting up that in doing this he
PARTIES. MAKING NEW PARTIES IN CHANCERY.
was acting merely as agent for C, to whom the note, judgment and
certificate of purchase belonged and had been assigned: Held, the
interest of C in the subject matter of the litigation being thus dis-
closed, the complainant should have amended his bill and made him a
party; and to proceed to final decree without giving him an opportu-
nity to protect his interests, was error, for which the decree should be
reversed. Lietze v. Clabaugh et al. 136.
3. On motion. In a suit in chancery for the assignment of dower,
and for partition, the court made an allowance for attorney's fees-
the allowance not being made as costs taxed in the cause, as contem-
plated by the statute, but the solicitors, in whose favor it was made,
being introduced as new parties into the record, upon mere motion,
and the sum allowed to them by name, the order, if allowed to stand,
would entitle them to execution in their favor, and was, in that
respect, irregular. Lilly et al. v. Shaw et al. 72.
COVENANT AGAINST INCUMBRANCES.
4. May be sued upon by a remote grantee. See COVENANTS FOR
TITLE, 1.
PARTITION.
OF THE LANDS OF INFANTS.
1. A court of chancery the guardian of infants. The right of par-
tition of lands among several owners, and the consequent sale, if not
susceptible of division, is not absolute in all cases. Hartmann et al. v.
Hartmann, 103.
2. So, upon bill filed for partition by a guardian, in the names of
his wards, who were the owners of the fee, their father, who was
made defendant, being tenant by the curtesy and consenting to the
relief sought, it appeared the land was worth $80 per acre, was un-
derlaid with coal, and, from its favorable location, likely to increase in
value, and worth $3 per acre rent. The land not being susceptible.
of division, would have to be sold, and no reason was shown why a
partition should be had: Held, though the land was then less pro-
ductive than the proceeds of a sale in money, yet it was a safer
investment for the infant owners than money loaned, and, under the
circumstances, their interests would be best subserved by refusing to
permit a sale, which a court of chancery, in the exercise of its general
supervision over the rights and interests of infants, ought to do.
Ibid. 103.
3. In view of the rule of distribution, under the life tables. Another
objection to the relief sought in this case, was, that in distributing the
proceeds of a sale according to the tables of mortality, which would
afford the rule of distribution, the tenant by the curtesy, who was
39-59TH ILL.
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